Martin, Jerry Duane

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS

NO. AP-76,317

JERRY DUANE MARTIN, Appellant

v.

THE STATE OF TEXAS

ON DIRECT APPEAL
FROM CAUSE NO. 24,087 IN THE 278 TH DISTRICT COURT
WALKER COUNTY

M EYERS, J., delivered the opinion of the Court in which P RICE, W OMACK,
J OHNSON, K EASLER, H ERVEY, C OCHRAN, and A LCALA, JJ., joined. K ELLER, P.J.,
concurred.

OPINION

Appellant was convicted in December 2009 of capital murder. T EX. P ENAL C ODE

§19.03(a). Pursuant to the jury’s answers to the special issues set forth in Texas Code of
 MARTIN - 2

Criminal Procedure Article 37.071, sections 2(b) and 2(e), the trial judge sentenced

appellant to death. Article 37.071 §2(g).1 Direct appeal to this Court is automatic.

Article 37.071 §2(h). After reviewing appellant’s twenty points of error, we find them to

be without merit. Consequently, we affirm the trial court’s judgment and sentence of

death.

SUFFICIENCY OF THE EVIDENCE

Appellant was charged with capital murder, specifically, committing murder while

escaping or attempting to escape from a penal institution. T EX. P ENAL C ODE

§19.03(a)(4). Appellant challenges the sufficiency of the evidence at both phases of trial.

In reviewing a claim that evidence is legally insufficient to support a judgment,

“the relevant question [on appeal] is whether, after viewing the evidence in the light most

favorable to the prosecution, any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307,

319 (1979). This standard accounts for the fact finder’s duty “to resolve conflicts in the

testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to

ultimate facts.” Id. Therefore, in analyzing the legal sufficiency, we will determine

whether the necessary inferences are reasonable based upon the combined and cumulative

force of all the evidence, both direct and circumstantial, when viewed in the light most

favorable to the verdict. Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).

1
Unless otherwise indicated all references to Articles refer to the Code of Criminal
Procedure.
 MARTIN - 3

Guilt Phase

The evidence at trial established that on September 24, 2007, appellant was an

inmate incarcerated for a felony offense at the Texas Department of Criminal Justice

(“TDCJ”) Wynne Unit located in Huntsville. He and fellow inmate John Falk were

assigned to the same work squad that morning to hoe and aerate the onion patch. The

Wynne Unit onion patch is outside the main perimeter fence of the prison and adjacent to

the City of Huntsville Service Center (“Service Center”). The Service Center was, at that

time, separated from prison property by only a chain-link fence in some portions and a

barbed-wire fence in others.

Four squads had been turned out to work that day, each consisting of twenty

inmates with a single armed guard on horseback. Each guard carried a .357 revolver with

six bullets. An armed supervising sergeant accompanied the squads in the fields. Finally,

a “high rider” also patrolled the squads. The high rider was another guard on horseback

who patrolled outside the prison fence on Service Center property and acted as the “last

line of defense” in the event of an escape attempt. The high rider carried a .357 revolver

with six bullets and a .223 rifle with four rounds. The high rider that day was Officer

Susan Canfield, an experienced rider and guard.

Appellant was part of squad number five, which was assigned to work in the

portion of the onion field closest to the Service Center. Officer Joe Jeffcoat oversaw
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appellant’s squad. Falk was assigned to the row in their squad’s section farthest from the

fence, and appellant voluntarily took the row next to him. Jeffcoat testified that appellant

and Falk were friends and that they usually worked together. He also noted that he had

never had any problems with the pair before that day.

After the squads had been working for a while, appellant approached Jeffcoat

asked him to hold his watch because it had broken. Jeffcoat agreed. When appellant got

about 20 feet from him, Jeffcoat heard something to his left; he turned to see Falk

walking towards him from the other side. When he turned back towards appellant,

appellant was already at Jeffcoat’s side reaching for his .357 revolver. Appellant and

Jeffcoat began struggling over the gun, and Jeffcoat yelled for help. Falk then started

shoving Jeffcoat out of his saddle. Appellant was able to get the gun as Jeffcoat came off

his horse on top of him. Jeffcoat began to wrestle with appellant, but Falk came around

and appellant tossed the gun to him. Jeffcoat let go of appellant and started after Falk, but

Falk pointed the gun at him. At this time, Jeffcoat heard his superior, Field Sergeant

Larry Grissom, yell to get down, so he did.

Appellant and Falk then fled through the barbed-wire fence and onto Service

Center property. Grissom and the other guards focused on apprehending Falk because

Falk had the gun. Appellant ran off in another direction. Grissom fired twice at Falk, but

Falk ran behind some equipment. Guards from two of the other squads also fired shots at

Falk but to no avail.
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At this point, the high rider, Canfield, engaged in a gun fight with Falk. Canfield

advanced on Falk while firing at him with her revolver. When Canfield expended her

bullets, Falk ran at her as she was trying to remove her rifle from its scabbard. The two

engaged in a struggle for the weapon while Canfield attempted to turn her horse away

from Falk. However, once Falk jabbed his stolen revolver in her ribs, Canfield ceased

struggling and Falk took the rifle. Falk then backed away.

Meanwhile, during the gunfight, appellant ran to a truck parked outside the Service

Center sign shop. Larry Horstman of the City of Huntsville sign shop testified that the

truck was a one-ton, flat-bed pick-up truck with toolboxes on the side. He stated that he

always parked the truck about 10 feet from the sign shop door and left the keys in it.

Jeffcoat testified that he saw the truck parked in the same spot every time he was working

in the onion field.

Appellant got into the truck and sped straight towards Canfield. Horstman

testified that he heard his truck take off “real fast.” Other witnesses testified that the

truck was “floorboarded,” “going as fast as it could go,” “being revved at high rpms,”

leaving acceleration marks as it hit Canfield and her horse just after Falk backed away.

Canfield and the horse went up onto the hood of the truck. Canfield’s back and shoulders

hit the windshield and her head struck the roof. Canfield was then launched into the air

and came down on her head, shoulder, and neck. There was no evidence appellant tried

to brake before hitting Canfield or that the truck slid into her and her horse; however, he
 MARTIN - 6

did turn toward the Service Center exit while, or immediately after, striking her with the

truck. Witnesses also testified that there was enough room in the Service Center lot that

appellant could have avoided hitting Canfield.

After striking Canfield and her horse, appellant stopped the truck and Falk ran to

the passenger side and got in. Jeffcoat testified that they then “took off as fast as the

truck could go.” Jay Miller, a fire hydrant technician with the Service Center, saw

appellant take the truck and managed to follow it as it left the Service Center lot. Miller

called 9-1-1 and remained on the phone during the chase. Miller testified that at one

point the truck’s passenger sat up in the windowsill of the truck and pointed a rifle at him.

Miller further testified that the passenger fired at him, but his vehicle was not hit. Miller

continued to chase them on and off the highway until the truck pulled into a parking lot

and the inmates got out and ran into some nearby woods. Miller parked his vehicle to

block the road and then chased the inmates on foot to see if they were going to come out

on the other side of a fence at the bank next door. The police arrived at this time and

Miller directed them towards the bank.

Walker County Deputy Brian Smallwood arrived at the bank to see appellant and

Falk run to a red truck that was in the drive-thru lane. Falk entered through the driver’s

door and shoved the female driver over. Appellant, who now had the rifle, jumped into

the bed of the truck. Huntsville Police Sergeant Ron Cleere also observed this and got

out of his vehicle with his gun drawn, but the inmates drove off before he could attempt
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to stop them. Cleere fired at the truck’s tires seven times hitting one of them, but the

truck did not stop. Both Smallwood and Cleere pursued the red truck.

Falk drove the truck onto the interstate but exited after only 3/4 of a mile. He

pulled onto a grassy field next to some woods because the right front tire was shredded.

Smallwood pulled his car into a ditch 50 yards away from the red truck. Appellant stood

up in the bed of the truck and pointed the rifle at Smallwood. Smallwood heard a shot as

he opened his door. Smallwood fired at appellant as appellant ran into the woods. Cleere

arrived and fired at appellant as well. Falk got out of the truck and also ran for the

woods. Cleere saw appellant again on the edge of the woods, using the base of a tree to

steady the rifle. Cleere went to retrieve his own rifle from his car, but when he returned

he did not see appellant. Appellant then stood up and Cleere fired at him with his rifle,

but appellant got away. When other officers arrived, they set up a perimeter around the

wooded area. The owner of the truck was unharmed.

Huntsville Police Lieutenant Daryl Slaven apprehended Falk behind the Walmart

on the other side of the wooded area. When Falk heard the police car, he stopped and put

his hands in the air. The authorities searched for appellant in the wooded area on

horseback and using dogs. The rifle was found lying in the woods with three rounds still

in it. After approximately two hours, appellant’s boots and some clothing were found

hidden in the dirt of a creek bed. Appellant was eventually discovered hiding in a tree

wearing only his underwear.
 MARTIN - 8

Dallas County Medical Examiner Tracy Dyer testified that Canfield died from a

significant impact that caused an unsurvivable hinge fracture to her skull which went

from ear to ear. Viewing photos of the damage to truck, Dyer opined that it would have

taken a “significant amount of velocity” for Canfield’s body to have caused the dent at

top of the windshield. She noted that Canfield also sustained a depressed skull fracture as

well as external injuries including bruising and lacerations to her head, hands, arms,

trunk, and legs. Veterinarian Richard Posey testified that Canfield’s horse had extensive

injuries from a bullet wound, plus trauma to its left hip, scrapes on its hips and hock, and

a swollen joint on its front leg from the impact. The horse had to be put down.

In appellant’s first point of error, he complains that the trial court erred in

overruling his motion for a directed verdict on the grounds that the evidence was legally

insufficient to show that Canfield’s death occurred while he was escaping. Specifically,

he asserts that Texas Penal Code §19.03(a)(4) incorporates the offense of escape,

pursuant to Texas Penal Code §38.06, and that case law dictates the offense of escape was

complete when he went through the prison fence onto city property. See Lawhorn v.

State, 898 S.W.2d 886, 890 (Tex. Crim. App. 1995); Fitzgerald v. State, 782 S.W.2d 876,

881 (Tex. Crim. App. 1990).2 For the reasons below, we find that the offense of escape

found in Texas Penal Code §38.06 is not incorporated into the capital-murder statute.

The provisions of the Penal Code must be “construed according to the fair import

2
See discussion of Lawhorn and Fitzgerald in point of error six, infra.
 MARTIN - 9

of their terms, to promote justice and effect the objectives of the code.” T EX. P ENAL

C ODE §1.05(a). When attempting to discern the collective legislative intent or purpose of

a statute, we focus on the literal text of the statute and attempt to discern a fair and

objective meaning of the statute’s text at the time it was enacted. Boykin v. State, 818

S.W.2d 782, 785 (Tex. Crim. App. 1991). We focus on the text because it is the only

definitive evidence of the legislators’ intent and the Legislature is constitutionally entitled

to expect the judiciary to faithfully follow the specific text that was adopted. Id.

Therefore, if the meaning of the statute, when read using the canons of construction,

should have been plain to the legislators who passed it, then we give effect to that plain

meaning. Id.

Upon examining the language of the capital-murder statute, it is apparent that

when the statute requires proof of a predicate offense, it does so explicitly by using

language that the murder was done “in the course of committing or attempting to commit”

a specific offense. See T EX. P ENAL C ODE §19.03(a)(2)(listing “kidnapping, burglary,

robbery, aggravated sexual assault, arson, obstruction or retaliation, or terroristic threat

under Section 22.07(a)(1), (3), (4), (5), or (6)” as offenses). All of these predicate

offenses are legislatively defined. See T EX. P ENAL C ODE §§20.03 (kidnapping), 30.02

(burglary), 29.02 (robbery), 22.021 (aggravated sexual assault), 28.02 (arson), 36.06

(obstruction or retaliation), 22.07 (terroristic threat). The Legislature could have included

the offense of “escape” in subsection (a)(2), or could have used the language “in the
 MARTIN - 10

course of committing or attempting to commit,” in subsection (a)(4); however, it did

neither.

Subsection (a)(4) does not speak of “escape” as an offense that must be committed

or attempted, but rather as a factual circumstance to be proven, similar to circumstances

described in other subsections of the capital-murder statute. Compare T EX. P ENAL C ODE

§19.03(a)(4) (stating that the State must prove the murder was committed “while escaping

. . . from a penal institution”) with T EX. P ENAL C ODE §19.03(a)(5)(A) (indicating that the

State must prove the murder was committed “while incarcerated in a penal institution”

against one “who is employed in the operation of the penal institution”).

As evidenced by subsection (a)(2), the Legislature clearly knew how to specify

that commission of the offense of escape was a predicate offense for capital murder. The

Legislature’s decision not to do so shows that they intended an application of the

common-sense definition of “escaping” rather than the statutory definition of the offense

of “escape.” The phrase “while escaping” implies that the Legislature considered escape

to be a process and desired to punish more severely any murder committed during that

process. We read words and phrases in context and construe them according to the rules

of grammar and common usage. T EX. G OV’T. C ODE §311.011(a). According to the rules

of grammar and common usage, the process of escaping is not complete until the inmate

“get[s] away” or is able to “break away, get free, or get clear.” W EBSTER’S T HIRD N EW

INTERNATIONAL D ICTIONARY 774.
 MARTIN - 11

Applying the common-sense definition of “escape,” we hold that the evidence is

sufficient to show that appellant killed Canfield while escaping from the Wynne Unit.

The facts show that Canfield was the “high rider” – a guard who patrolled just outside the

prison fence. It would have been obvious to the inmates in the squads that, in order to

escape or “get away,” they would need to get past the high rider. While appellant was

making his escape with Falk, Canfield was attempting to prevent it. In the course of their

escape, appellant killed Canfield. Although there is a point at which the escape is

concluded under subsection (a)(4), because appellant murdered Canfield while he was in

the literal process of escaping, we need not decide that point in this case.

The trial judge did not err in overruling appellant’s motion for a directed verdict.

Point of error one is overruled.

In his second point of error, appellant contends that the evidence is legally

insufficient to show that he intentionally or knowingly caused Canfield’s death. In

reviewing the legal sufficiency of appellant’s intent to cause death, we note that capital

murder is a result-of-conduct offense. Roberts v. State, 273 S.W.3d 322, 329 (Tex. Crim.

App. 2008). A person acts intentionally, or with intent, with respect to a result of conduct

when it is his conscious objective or desire to cause the result. T EX. P ENAL C ODE

§6.02(a). A person acts knowingly, or with knowledge, with respect to a result of his

conduct, when he is aware that his conduct is reasonably certain to cause the result. T EX.

P ENAL C ODE §6.02(b). An accused’s intent can be inferred from his acts, words, and
 MARTIN - 12

conduct. Dues v. State, 634 S.W.2d 304, 305 (Tex. Crim. App. 1982).

Appellant argues that he neither had a “conscious objective or desire” to cause

Canfield’s death nor was he “aware that his conduct was reasonably certain” to cause her

death when the truck he was driving hit her horse. First, appellant contends that the fact

that the horse was not significantly harmed by the truck shows that he did not intend to

kill Canfield. He notes that the veterinarian testified that the horse was put down because

of the gunshot wound and not the truck impact, and asserts that the veterinarian testified

that the horse was not even harmed by the collision. However, the veterinarian, Dr.

Posey, did testify that the horse was harmed by the truck when he noted bruising or

trauma to the horse’s left hip and scrapes to its hips and hock, along with a swollen joint

on its front left leg. Posey also testified that it was not unusual for a horse to be able to

walk and have no broken bones after impact by a vehicle.

Next, appellant argues that the horse was turning or circling when he hit it, and

because the damage to the truck was on the right passenger side, he must have been

turning away from the horse when he hit it with the truck. He reasons that this evidence

proves that he attempted to miss the horse because, if he wanted to kill Canfield, he

would not have turned the truck at all. He also notes that he would have killed Falk, if

Falk had not backed away. He contends that the evidence shows that Canfield’s death

was clearly just a tragic accident.

Viewed in the light most favorable to the verdict, the evidence shows that
 MARTIN - 13

appellant and Falk worked together to effectuate their escape. Canfield was the only

obstacle to both men getting away. Witnesses testified that once appellant began to drive

the truck, the engine was “wide open,” “revved up at high rpms,” and “floorboarded,” and

it was headed straight toward Canfield. Sergeant John Tucker, a Department of Public

Safety (“DPS”) accident reconstructionist, observed tire marks “caused by a vehicle

accelerating into a turn.” There was no evidence of braking or swerving near the point of

impact. Further, the evidence showed that there was a clear space of over 40 feet on

either side of Canfield into which appellant could have moved to avoid colliding with her.

When appellant did turn, it was in the direction of the exit. Based upon this evidence, the

jury could reasonably infer that, even if Canfield’s horse was turning or circling, appellant

intentionally or knowingly caused Canfield’s death. Point of error two is overruled.

Punishment Phase

In point of error three, appellant challenges the sufficiency of the evidence

regarding future dangerousness. See Article 37.071 § 2(b)(1). As with the guilt phase, in

reviewing the sufficiency of the future-dangerousness evidence, we view the evidence in

the light most favorable to the verdict and determine whether any rational trier of fact

could have believed beyond a reasonable doubt that there was a probability that the

defendant would commit criminal acts of violence. Williams v. State, 273 S.W.3d 200,

213 (Tex. Crim. App. 2008); Banda v. State, 890 S.W.2d 42, 50 (Tex. Crim. App. 1994).

A jury is permitted to consider a variety of factors when determining whether a defendant
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will pose a continuing threat to society. See Keeton v. State, 724 S.W.2d 58, 61 (Tex.

Crim. App. 1987).

In its determination of the special issues, the jury is entitled to consider all of the

evidence presented at the guilt phase of the trial, in addition to the evidence presented at

the punishment phase. Banda, 890 S.W.2d at 51; Valdez v. State, 776 S.W.2d 162, 166-

67 (Tex. Crim. App. 1989). In some instances, the circumstances of the offense and the

events surrounding it may alone be sufficient to sustain a “yes” answer to the future-

dangerousness special issue. Banda, 890 S.W.2d at 51; see also Hayes v. State, 85

S.W.3d 809, 814 (Tex. Crim. App. 2002). The jury is the exclusive judge of the

credibility of witnesses and the weight to be given their testimony. Colella v. State, 915

S.W.2d 834, 843-44 (Tex. Crim. App. 1995).

The evidence in the instant case revealed that appellant and Falk worked as a team

to escape from the Wynne Unit. While Falk drew fire from the guards, appellant obtained

a truck and then used it to incapacitate Canfield – the last guard impeding the duo’s get

away. Appellant and Falk then led the authorities on a car chase, eventually abandoning

the city truck. They then kidnapped a woman and took her vehicle. When that vehicle

was no longer driveable, appellant engaged in a short gunfight with officers before

fleeing on foot and hiding in the woods. This evidence alone supports a finding of future

dangerousness. However, further evidence presented at the punishment phase also

supports this finding.
 MARTIN - 15

At the time he killed Canfield, appellant was serving a 50-year sentence for

attempted capital murder, a 40-year sentence for another attempted capital murder, a 10-

year sentence for aggravated assault, and a 10-year sentence for failure to appear. The

victims of the attempted capital murders and the aggravated assault were peace officers.

In addition to appellant’s prior offenses, the State offered evidence showing that

appellant lacked remorse for the instant offense and felt that his conduct was not only

reasonable but courageous. Two weeks after Canfield’s death, appellant sent a letter to

his older brother, John, in which he discussed the instant offense:

Well I’m sure by now that you have heard the news about my escape
from the Wynne farm. I wasn’t gone for more than a few hours until I was
recaptured. There was a shootout with the police, a couple of high speed
chaces [sic], and a death. You will never know the resolve, the desperate
courage it took for me to wrestle an armed guard off his horse – and take
his gun away frome [sic] him, while having three other armed guards on
horses shooting at you. One of those three lost there [sic] life, and as a
result I now have to face the death penalty becaus [sic] of it.

I do not expect you to fully understand my reasonings – you would
have to walk a mile in my shoes to understand what drove me to make such
a decision. I exhausted every reasonable means of appealing my case –
through the State – as well as through my own family, you encluded [sic]. I
begged you to speak to Robert Looper & Jimmy Warnell [the officers he
was convicted of attempting to shoot]. For “four” years I have been
reaching out to my family to help – It makes no difference now . . . This is
not something that happen [sic] overnight John . . . surely in your heart you
knew it would someday come down to this – what other choice did I have?
25 years is a long-long time to do brother. I barely had 12 done and the
next thirteen were overwhelming. I did only what was to be reasonably
expected of me to do – win, loose [sic] or draw, I tried for freedom. I lost.

***
 MARTIN - 16

I am a real outlaw brother. My prison record speaks for its self [sic].
Now I’m gona [sic] die an outlaws [sic] death.

The State also called Stephen Rogers, employed by the TDCJ State Classification

Office, to testify about the classification levels in the Texas prison system and how an

inmate’s level is determined. He described the layout, security measures, and privileges

with regard to general population and administrative segregation. He testified that a

person receiving a sentence of life without parole would be assigned to the G-3 general

population classification indefinitely. However, he noted that due to appellant’s escape

risk and the fact that he killed a guard, appellant would most likely be assigned to

administrative segregation and could remain there for the duration of his incarceration.

Rogers did note that inmates have committed acts of violence and escaped from

administrative segregation. Texas Special Prosecution Unit Senior Criminal Investigator

A.P. Merillat also testified about the level of security on death row and the newly defined

“High Security” classification. He noted that there were opportunities for inmates to

commit violence in all classification levels, including on death row, against fellow

inmates, guards, chaplains, investigators, visitors, or medical personnel.

Appellant presented the facts of his previous offenses of attempted capital murder

through the testimony of witnesses. On August 15, 1994, police were called to

appellant’s mother’s home regarding a domestic disturbance with shots fired. When

Deputy R.D. McCommas arrived at the residence, he saw two or three people outside the

home. As he approached, appellant got into a red truck and drove off. The people at the
 MARTIN - 17

home confirmed that appellant was the one “causing problems.” After determining that

everyone at the house was unharmed, McCommas pursued appellant. McCommas was in

a marked car with the lights and siren activated. Two other county sheriff’s cars and a

DPS trooper became involved in the high-speed chase. Appellant was going 60 to 70

mph on a two-lane country road, and he drove through some yards adjacent to homes.

McCommas saw appellant waving a gun through the back window of the truck. The DPS

trooper then took the lead in the chase and radioed that “shots had been fired.”

McCommas could see the trooper returning fire.

Appellant eventually turned off the road into a maize field and positioned his truck

so that it to faced back toward the road. Appellant got out of the truck holding a gun to

his head. A stand-off ensued that lasted several hours. Other officers, sharp shooters,

and police negotiators came to the scene, but, per policy, the officers were ordered not to

return fire if appellant fired his weapon.

Deputy Jimmy Warnell, a Collin County Sheriff’s negotiator, attempted to get

appellant to surrender and turn over his gun. Warnell spoke with appellant while behind a

bulletproof shield. Appellant threatened to kill Warnell, and did fire a shot in close

proximity to him. Appellant fired other shots, one coming close to McCommas. At one

point, appellant even put the gun into his own mouth. Appellant was eventually arrested,

and no one was harmed.

Following his arrest on August 15, 1994, appellant was released on bond which
 MARTIN - 18

was posted by his uncle. However, appellant fled Texas and failed to make his court

appearance. Appellant was arrested in Kansas in 1997 and returned to Texas to face

charges for aggravated assault, two attempted capital murders, and failure to appear.

At punishment, Appellant also presented evidence regarding his childhood and

family. Appellant’s brother, John, testified that appellant was the fourth of five children,

having an older sister, two older brothers, and a younger sister. When appellant was

fairly young, their parents got divorced. The children lived with their mother and moved

several times. They did not get to see their father very often due to animosity between the

parents.

Tami, the oldest, joined the Marines when she finished high school. Joey, the

second oldest, began having problems with drugs when he was in his teens and dropped

out of school in the tenth grade. After he quit school, Joey lived “in ditches or in the

woods.” When Joey was 18 or 19, he died in a fire. According to John, appellant was a

“happy go lucky kid” prior to Joey’s death, but John noticed a difference afterward.

When he was eleven, appellant attempted suicide by shooting himself. When he

was in his early teens, he began using drugs. John testified that appellant “got out of

control with the drugs, and my mom shipped him off to dad.” Appellant did not finish

high school. John was aware that appellant was convicted of theft in Dallas County in

1988, and was sentenced to shock probation, and attended boot camp.

John moved to Nevada with his wife in 1990 or 1991 and began working on a
 MARTIN - 19

ranch there. Appellant also moved to Nevada and lived with John while working in a

casino as a cook. John noted that appellant still had a problem with drugs and alcohol,

and served jail time in Nevada. Appellant committed the attempted capital-murder

offense within 18 months of returning to Texas. John testified that he never discussed the

1994 incident with appellant, but his mother told him that appellant was threatening

suicide that day and had not threatened her life.

John further testified about appellant’s abilities as an artist. TDCJ Captain John

Bolton testified that appellant worked for four or five years on the “paint squad” at the

Polunsky Unit. He confirmed that appellant was a talented artist and that he did some

murals around the prison. He stated that appellant was one of the best painters ever to

work for him.

Appellant’s father, Joe Martin, testified that he and appellant’s mother never got

appellant the help he needed to deal with his alcohol and drug problems. Joe mistakenly

assumed that the hospital would provide appellant with the help he needed following his

suicide attempt.

Eric Albritton, the appellate counsel for appellant’s 1994 convictions, testified that

he believed appellant’s trial counsel was ineffective because he did not raise evidence

regarding appellant’s mental condition. Albritton believes that appellant was attempting

to commit suicide by provoking the officers that day in the maize field. Albritton

admitted, however, that he lost this argument on both appeal and petition for discretionary
 MARTIN - 20

review.

Appellant presented his own prison-classification expert, Frank Aubuchon.

Aubuchon had been the former administrator of unit classification for TDCJ. Aubuchon

detailed the type of restrictions and security present when an inmate is assigned to

administrative segregation. He described the living environment, the restraints used to

transport an inmate assigned to administrative segregation, and the fact that the inmate

would remain handcuffed even during medical visits. Aubuchon opined that appellant

would remain in administrative segregation for the rest of his life if he received a

sentence of life without parole.

Finally, Dr. Roger Saunders, a forensic clinical psychologist, testified that

appellant has major or “severe” depressive disorder that was first evidenced by

appellant’s suicide attempt at the age of eleven. Saunders noted that appellant’s medical

records also showed that he was diagnosed with bi-polar disorder, mood disorder,

substance-abuse disorder, and dependent personality features. He stated that the

depressive disorder brought on appellant’s alcohol and drug problems and probably

caused appellant to quit school. He also testified that a severe depressive disorder can

cause thoughts of doing things that are irrational and irresponsible. However, Saunders

also testified that this depressive disorder is a very treatable illness and that appellant was

receiving treatment while incarcerated. He also confirmed that there was no evidence in

appellant’s records that he was experiencing a depressive episode at the time of the
 MARTIN - 21

instant capital murder.

Appellant argues that the future-dangerousness evidence should be outweighed by

the mitigating evidence he presented, plus the facts that Canfield’s death was actually

more of a vehicular accident than an intentional murder, that he had not actually harmed

anyone during his previous offenses, and that he had a good disciplinary record while

incarcerated. However, while this Court can review the objective evidence of future

dangerousness, we do not review the jury’s normative decision on mitigation. Colella,

915 S.W.2d at 845. Nor do we weigh the aggravating versus mitigating factors.

McFarland v. State, 928 S.W.2d 482, 497-98 (Tex. Crim. App. 1996). Therefore, we

defer to the jury’s conclusion that the mitigating evidence was not sufficient to warrant a

sentence of life imprisonment.

The circumstances of the instant offense suggest that appellant’s acts were

calculated and deliberate. Given these facts, plus appellant’s written admission that he is

ready and willing to use violence to get out of a lengthy prison sentence and the nature of

his previous offenses, we conclude that a rational jury could find that there is a

probability that appellant will commit criminal acts of violence that constitute a

continuing threat to society. Point of error three is overruled.

JUROR MISCONDUCT

In points of error four, five and ten, appellant focuses on one specific act of

alleged juror misconduct – juror Carrie Doak’s negative response to question 79 of the
 MARTIN - 22

juror questionnaire regarding whether she, a family member, or friend ever worked for the

prison system, when, in fact, Doak’s husband had worked as a guard and been stabbed by

an inmate. Specifically, in point of error four, appellant contends that Doak withheld

material information that denied appellant “his right to intelligently exercise his

challenges resulting in him being denied a fair trial.” In point of error five, appellant

contends that the trial court abused its discretion by denying his motion for new trial

because Doak’s alleged “material misrepresentation” on the juror questionnaire “resulted

in the appellant being denied a trial [before] an impartial jury.” In point of error ten, he

argues that the trial court erred in denying his motion for new trial because Doak

discussed this previously unrevealed information with the rest of the jury, thereby denying

him a fair trial before an impartial jury.

A review of the record shows that, while filling out the juror questionnaire, Doak

answered the following question in the negative:

79. Have you, a family member, or friend ever been employed, served in,
or been a member of, any local, state, federal, or other law
enforcement agency, including, but not limited to, any police
department, any Sheriff’s Office, office of any District or County
Attorney, Attorney General’s office, or any prison system?

During individual voir dire, appellant did not ask Doak whether she knew anyone who

had ever worked for the prison system. Doak was accepted as a member of the jury. We

note that two other prospective jurors with known connections to the Texas prison system

were accepted as jurors. Juror Jerel Thornhill had formerly worked at the Limestone
 MARTIN - 23

County Detention Center. Counsel did not ask him whether he ever encountered violence

during his employment. Juror Brenda Green indicated that, while she and her former

husband were married, he had been a Texas Department of Corrections (“TDC”)3 prison

guard for 20 years, including “working the death chamber.” Counsel did not question her

regarding whether her former husband experienced violence on the job. After the trial

concluded, it was learned that Doak’s husband had been employed in the Texas prison

system.

Appellant filed a Motion for New Trial alleging in one of his grounds that Doak

had “withheld material information” at voir dire that denied him an impartial jury.

Appellant relied upon the affidavit of juror Lori Ann Jenkins, in which she claimed that

the jury considered outside evidence during punishment deliberations.4 Specifically,

Jenkins stated:

3
TDC was later renamed the Texas Department of Criminal Justice.
4
Texas Rule of Evidence Rule 606(b) states that a juror may not testify or make
an affidavit about any matter or statement occurring during deliberations or the effects of
anything on any juror’s mind as influencing the verdict with two exceptions: (1)
“whether any outside influence was improperly brought to bear upon any juror,” or (2) “to
rebut a claim that the juror was not qualified to serve.” In points of error four, five, nine,
and ten, appellant relies upon an affidavit and testimony obtained during the hearing on
the Motion for New Trial that implicate Rule 606(b). Neither party objected to the use of
this evidence.
We express no opinion as to whether the admittance of this evidence was proper;
however, as no objections were lodged, the testimony and affidavits of the jurors are
available for our consideration in determining whether reversible error occurred. See
Salazar v. State, 38 S.W.3d 141, 147 (Tex. Crim. App. 2001); see also McQuarrie v.
State, No. PD-0803-11, slip op. at 9-18, ___ S.W.3d ___ (Tex. Crim. App. Oct. 10, 2012).
 MARTIN - 24

Mrs. Doak told the jury about an incident involving her husband. She said
that her husband had worked in the Texas prison system and had been
stabbed by an inmate while employed there. As I recall, she said that her
husband had worked in Administrative Segregation when the stabbing
occurred.

The trial court held an evidentiary hearing on the Motion for New Trial. Nine of

the twelve jurors testified at the hearing as follows:

Monica Cooke: Cooke did not hear Doak have any discussions about a stabbing
incident that involved her husband while he worked in TDC. She
was not aware of any discussions by any members of the jury about
any acts of violence that took place in TDC except those that were
introduced during the trial.

Jerel Thornhill: Thornhill did not hear any discussions about anyone having any
personal experience regarding acts of violence in administrative
segregation or in TDC in general. He specifically testified that he
did not remember any juror discussing his or her knowledge of a
family member or friend being stabbed or subjected to any type of
violence while employed by TDC.

Carrie Doak: Doak testified that her husband had worked in administrative
segregation at the Ferguson Unit. He was stabbed by an inmate once
while on the job. He worked for TDC seventeen years ago, for a
period of only eighteen months. He did not think that the incident
was a “big deal.” She did not discuss this at all during deliberations
nor did she hear anyone else discuss it. She noted that the only time
that it came up was “three of us ladies were talking about our
experiences and what our husbands had done,” when they were just
getting to know each other during the trial. It was not a long or
detailed conversation. The other ladies were “Connie” and “Peggy.”
Jenkins was not part of the conversation, but if Jenkins was around
them where she could hear, it is possible that Jenkins overheard it.
Doak testified that the fact that her husband had been subjected to an
assault in TDC had absolutely no impact on her deliberations.

Regarding the juror questionnaire, Doak testified that her incorrect
response was an accident – she did not mean to answer the question
 MARTIN - 25

incorrectly. When filling out the questionnaire, she was in a rush to
get to a doctor’s appointment regarding her first grandchild. She did
not even know that she answered it incorrectly until she was
contacted after the trial was over. The questionnaire was 23 pages
and question 79 was long – she is sure that she read the first three
lines and did not see the last three or four words of the paragraph.
Also, the question did not mention TDC. She was shocked that she
was selected for the jury and noted that had she been verbally asked
during voir dire, she would have told them her husband had worked
in the prison system. She stated that she lived in a small town and
the incident was public knowledge. Doak knew half of the jury
“very well,” although she did not know Jenkins. She did note that
she and Jenkins had friends in common. Also, when she realized
that some of the other jurors had experience with the prison system –
some up to 30 years and with death row – she thought that it must
not matter.

Brenda Green: Green testified that her former husband worked for TDC and she had
discussed that with counsel during voir dire. During lunch one day,
Doak mentioned that her husband had once worked at TDC and had
been stabbed while working there. The only other person that may
have been privy to the conversation other than herself and Doak was
“whoever was sitting besides us,” but she could not remember who
that was. Green testified that the incident was not discussed during
deliberations by anyone, nor does she remember anyone discussing it
at any other time.

Pegene Parker: Parker never heard anyone discuss any specific instances involving
acts of violence regarding their family members or themselves at
TDC.

Matthew Winn: Winn never had any knowledge about Doak’s husband being stabbed
while working at TDC.

Thomas Davis: Davis testified that he has known Mr. and Mrs. Doak for a long time.
He knew that Mr. Doak had worked for TDC and had at one time
been the victim of a stabbing. He did not hear anyone discussing this
incident during deliberations. He believes Doak mentioned that her
husband used to work for TDC when the jurors were casually getting
to know one another in the first couple of days the jury was at the
 MARTIN - 26

courthouse. He does not recall ever hearing Doak mention that her
husband had been stabbed. He testified that even if someone had
brought up the incident during deliberations it would not have made
a difference because they had the evidence in the case – “paperwork
out in front of us that had stated what all goes on in [prison].”

James Nash: Although Nash was the foreperson of the jury, neither appellant nor
the State questioned him regarding Doak or her husband.

Lori Jenkins: Jenkins stated that Doak mentioned her husband and the stabbing
incident shortly after they were convened as a jury. She stated that
Doak mentioned it over and over and some of the jurors talked about
it a lot. She believed that this also occurred during jury deliberations.
However, she also testified that this information had no influence on
her own vote and she could not say how it influenced others.

In point of error four, appellant contends that Doak purposefully withheld material

information that her husband was employed as a prison guard and was stabbed by an

inmate. Appellant argues that because Doak withheld this material information, he was

denied the opportunity to exercise challenges intelligently, thus hampering his selection of

a disinterested and impartial jury.

We note that both the Sixth Amendment and Article I, Section 10 of the Texas

Constitution provide criminal defendants the right to a trial by an impartial jury. Uranga

v. State, 330 S.W.3d 301, 304 (Tex. Crim. App. 2010). The protection under the Texas

constitution is no greater than that offered by the federal constitution. Jones v. State, 982

S.W.2d 386, 391 (Tex. Crim. App. 1998).

This Court has found that “essential to the Sixth Amendment guarantees of the

assistance of counsel and trial before an impartial jury is the right to question specific
 MARTIN - 27

veniremembers in order to intelligently exercise peremptory challenges and challenges for

cause.” Franklin v. State, 138 S.W.3d 351, 354 (Tex. Crim. App. 2004)(citation omitted).

As well, “where a juror withholds material information during the voir dire process, the

parties are denied the opportunity to exercise their challenges, thus hampering their

selection of a disinterested and impartial jury.” Id. However, it must be established that

the juror withheld the information during voir dire and that the information was withheld

despite the defendant’s exercise of due diligence. Id. at 355-56; Jones v. State, 596

S.W.2d 134, 137 (Tex. Crim. App. 1980), overruled on other grounds, Sneed v. State, 670

S.W.2d 262, 266 (Tex. Crim. App. 1984).

In Gonzales v. State, 3 S.W.3d 915, 916 (Tex. Crim. App. 1999), we specifically

addressed, for the first time, “the extent to which counsel may rely on information

provided in written juror questionnaires.” Prior to Gonzales, our cases addressing juror

non-disclosure were limited to the verbal-questioning portion of the voir dire process.

See, e.g., Franklin, 138 S.W.3d at 352; Armstrong v. State, 897 S.W.2d 361, 362 (Tex.

Crim. App. 1995); Jones, 596 S.W.2d at 136. In Gonzales, we considered a line of cases

holding that purportedly material information is not deemed to have been “withheld”

when defense counsel fails to ask sufficient questions during the voir dire process.

Gonzales, 3 S.W.3d at 916. When considering counsel’s reliance on particular responses

to a juror questionnaire, we held that “‘diligent counsel’ will not rely on written

questionnaires to supply any information that counsel deems material.” Id. at 917.
 MARTIN - 28

As in Gonzales, defense counsel in this case did not ask any oral questions in an

effort to verify whether prospective jurors had any connection to the prison system.

Further, even when a prospective juror answered question 79 in the affirmative, counsel

did not inquire during voir dire whether that person, her relative, or her friend

experienced violence while employed with the prison system. Because counsel did not

follow up on the written questionnaire with more specific verbal questioning, it appears

that counsel did not consider this information to be “material” to the case. We further

note that the information “withheld” by Doak does not rise to the level of information that

we have previously held to be material. See, e.g., Franklin, 138 S.W.3d 351 (after stating

that she knew none of the parties involved in trial, juror informed court that she was the

assistant leader of victim’s Girl Scout troop and that her own daughter was also in the

victim’s troop); Von January v. State, 576 S.W.2d 43 (Tex. Crim. App. 1978)(juror failed

to disclose that he knew the deceased victim’s family although asked directly during voir

dire); Salazar v. State, 562 S.W.2d 480 (Tex. Crim. App. 1978)(in case where defendant

was on trial for exposing genitals to a young girl, juror failed to disclose that he had been

prosecution witness in criminal proceeding where he was eyewitness to sexual assault of

own daughter). As Doak did not withhold material information, point of error four is

overruled.

In point of error five, appellant asserts that the trial court abused its discretion in

denying his motion for new trial because Doak withheld material information that denied
 MARTIN - 29

him a trial before an impartial jury.5 A trial court’s ruling denying a defendant’s motion

for new trial is reviewed under an abuse of discretion standard. Salazar v. State, 38

S.W.3d 141, 148 (Tex. Crim. App. 2001). We do not substitute our judgment for that of

the trial court, but simply determine whether the trial court’s analysis was arbitrary or

unreasonable. Id.; Lewis v. State, 911 S.W.2d 1, 7 (Tex. Crim. App. 1995). The trial

court is the sole judge of the credibility of the testifying jurors. Salazar, 38 S.W.3d at

148. “Where there is conflicting evidence on an issue of fact as to jury misconduct, the

trial judge determines the issue and there is no abuse of discretion in overruling the

motion for new trial.” Thomas v. State, 699 S.W.2d 845, 854 (Tex. Crim. App. 1985).

As discussed in point of error four, the information at issue was not material and

appellant did not use due diligence to elicit it. See Franklin, 138 S.W.3d at 355-56.

Therefore, the trial court did not err in overruling the motion for new trial. However,

even assuming arguendo that appellant could show error, he cannot show that he was

harmed.

We do not hold that an appellant is entitled to a reversal of his conviction in
any case in which he discovers that a juror withheld information during voir
dire. Where the information is not material and the juror can state that it
will not affect his deliberation or verdict, an appellant may be unable to
show harm.

Gonzales, 3 S.W.3d at 912 n.2, quoting Salazar v. State, 562 S.W.2d 480, 482 n.5 (Tex.

5
For the first time on appeal, appellant claims that Doak also withheld information
regarding whether any member of her family had ever been the victim of a crime (Question 66 on
the juror questionnaire) because a stabbing is a criminal offense. Appellant has not preserved
this claim for appellate review. TEX . R. APP . P. 33.1(a).
 MARTIN - 30

Crim. App. 1987). Non-constitutional error will be disregarded if it did not affect the

appellant’s substantial rights. T EX. R. A PP. P. 44.2(b).6

The record here supports a credibility determination that Doak remained an

impartial juror throughout appellant’s trial. Doak specifically testified that she was

“absolutely” not influenced in her deliberations by the stabbing incident involving her

husband. Notably, the incident occurred over seventeen years before and, at that time,

Doak’s husband did not consider the incident to be a “big deal.” Because appellant

cannot show Doak’s verdict was affected by her husband’s stabbing incident when he was

a guard, point of error five is overruled.7

In appellant’s tenth point of error, he argues that the trial court erred in overruling

his motion for new trial because Doak discussed the stabbing incident with other jurors,

thereby denying him a fair trial before an impartial jury. He specifically points to the

testimony of Doak and jurors Green, Davis, and Jenkins.

The record shows that Doak’s presence on the jury did not unduly influence the

other jurors. Only jurors Green, Davis, and Jenkins testified that they knew or heard any

6
Cf. Franklin, 138 S.W.3d at 354-58 (harm will be reviewed under Texas Rule of
Appellate Procedure 44.2(a) for constitutional error where information withheld is material and
counsel was diligent in trying to elicit the information).
7
At the end of his argument, appellant briefly asserts that Doak was guilty of “corrupt
conduct” by withholding material information on her questionnaire and cites to Texas Rule of
Appellate Procedure 21.3(d). Nowhere in his argument does appellant address how a juror’s act
of non-disclosure could amount to “corrupt conduct” within the meaning of Rule 21.3(d).
Without more, we will not evaluate this line of appellant’s argument. See TEX . R. APP . P.
38.1(I).
 MARTIN - 31

information regarding Doak’s husband. Green and Davis testified that the incident

involving Doak’s husband was not discussed during jury deliberations and this was

confirmed by every other juror questioned at the motion for new trial hearing with the

exception of Jenkins. However, even Jenkins could not say that her knowledge of the

stabbing incident influenced her deliberations or the deliberations of the other jurors.

Because appellant cannot show that Doak’s presence as a juror denied him his

right to an impartial jury, the trial court did not abuse its discretion in denying appellant’s

motion for a new trial. See Salazar, 38 S.W.3d at 148. Point of error ten is overruled.

JURY CHARGE: GUILT PHASE

In point of error six, appellant asserts that the trial court erred in denying his

requested jury instruction regarding “escape.” Specifically, appellant requested that the

jury be instructed that escape is not a continuing offense, that an escape is complete when

the defendant “moves beyond the bounds of his confinement without authority,” and that

if the jury had a reasonable doubt that the “escape” was completed before he hit Canfield

with the truck, then it must acquit appellant of capital murder.

Article 36.14 requires a judge to deliver to the jury “a written charge distinctly

setting forth the law applicable to the case.” Here, appellant asserts that the law clearly

states that one completes the offense of escape when he crosses the property line of the

prison in which he is confined. Appellant relies upon the holdings in Lawhorn v. State,

898 S.W.2d 886, 890 (Tex. Crim. App. 1995), and Fitzgerald v. State, 782 S.W.2d 876,
 MARTIN - 32

881 (Tex. Crim. App. 1990).

As we stated in point of error one, the State did not have to prove the statutory

offense of “escape.” See point of error one, supra.; T EX. P ENAL C ODE §19.03(a)(4).

Therefore, instructing the jury on the offense of escape as it pertains to the offense of

capital murder would have been error. Further, we note that appellant misconstrues both

Lawhorn and Fitzgerald.

Appellant asserts that both Fitzgerald and Lawhorn hold that the offense of escape

is completed once an inmate moves beyond the actual property line of the prison – in this

case, the fence surrounding the vegetable fields. He relies on the following sentence in

Fitzgerald: “Thus Appellant with his cohorts committed the felony offense of escape by

moving beyond bounds of Beto II Unit without authority, and his offense was complete at

that point.” 782 S.W.2d at 879. However, our Fitzgerald holding is limited to the facts

of that case. In Fitzgerald, the defendant and another inmate cut through a perimeter

fence unnoticed sometime before they were discovered missing at 7:00 a.m. Id. at 877

n.3. In Lawhorn, the defendant escaped from a transport van. Officer Waddle, the guard

in the van, attempted to chase him but soon lost sight of him. The defendant was later

spotted by another officer and apprehended. 898 S.W.2d at 888. We held under those

facts that the offense of escape was completed when the defendant left the “state of

detention or restraint by a peace officer” – when the defendant “ran from the van, or at the

very latest, when Waddle gave up the chase and returned to the van containing her other
 MARTIN - 33

prisoners.” Id. at 890.

“Escape,” for the purposes of section 38 of the Penal Code, is defined as an

“unauthorized departure from custody.” T EX. P ENAL C ODE §38.01(2). We have held that

phrase to mean “the act of leaving a state of detention or restraint by a peace officer and

once the act is done the escape is accomplished.” Lawhorn, 898 S.W.2d at 890 (emphasis

added). In Fitzgerald, no guard attempted to prevent the inmates from leaving the prison,

and so their escape was complete when they left the grounds. Fitzgerald did not

contemplate a situation in which the inmates were confronted by guards while leaving the

unit. In Lawhorn, the escape was complete when the defendant got away from the guard

in the van. Therefore, even assuming that these cases defining the offense of escape

under section 38.01(2) have any applicability to appellant’s case, they tend to show that

appellant’s escape was not complete at the time that he killed Canfield because he had not

left the effective restraint of a peace officer.

The trial court did not err in refusing appellant’s requested instruction as it would

have been a misstatement of the law. Point of error six is overruled.

In points seven and eight, appellant contends that the trial court erred by failing to

give a lesser-included offense instruction on escape and by not providing appellant’s

proposed instruction on the lesser-included offense of escape in the court’s jury charge.

In particular, he claims that escape is a lesser-included offense of capital murder under

section 19.03(a)(4), that he could have just been convicted of escape, as he lacked the
 MARTIN - 34

required intent to commit murder, and that his instruction on the lesser-included offense

of escape was proper.

In deciding whether a defendant is entitled to a lesser-included offense charge, we

consider all of the evidence introduced at trial, regardless of its source. Goodwin v. State,

799 S.W.2d 719, 740 (Tex. Crim. App. 1990). This Court applies a two-pronged test in

its review. Rousseau v. State, 855 S.W.2d 666, 672-75 (Tex. Crim. App. 1993);

Goodwin, 799 S.W.2d at 740-41. Under the first prong, it must be shown that the lesser-

included offense is included within the proof necessary to establish the offense charged.

Id. The second prong then requires some evidence in the record that would have

permitted a rational jury to find the defendant guilty of only the lesser-included offense.

Id. When making the determination of whether an instruction on a lesser-included

offense should have been given, the credibility of the evidence, whether it conflicts with

other evidence or whether it is controverted, may not be considered. Banda v. State, 890

S.W.2d 42, 60 (Tex. Crim. App. 1994).

As held above, the offense of escape is not a lesser-included offense of capital

murder under section 19.03(a)(4) because the legislature was not using the term

“escaping” to refer to the offense of escape; rather, they were using it in its common

usage to describe a process. See point of error one, supra. Because the process of

“escaping” is not an offense in and of itself, it is not within the proof necessary to

establish the charged offense. Therefore, appellant does not meet the first prong of the
 MARTIN - 35

test. Rousseau, 855 S.W.2d at 672-75. Accordingly, the trial judge did not err in

overruling appellant’s objection that a lesser-included offense instruction should have

been given. For the same reason, the trial judge also did not err in denying the appellant’s

proffered lesser-included offense instruction.8 Points of error seven and eight are

overruled.

PUNISHMENT DELIBERATIONS

In point of error nine, appellant contends that the trial court committed reversible

error by giving the jury a “coercive” instruction during punishment deliberations.

Appellant argues this instruction denied him his right to trial by an impartial jury.

Article 37.071 §2(g)9 compels the trial court to enter a life sentence if the jury is

unable to answer any special issue. Howard v. State, 941 S.W.2d 102, 121 (Tex. Crim.

App. 1996); Montoya v. State, 810 S.W.2d 160, 166 (Tex. Crim. App. 1989). However,

the trial court is not bound to enter a life sentence after the first sign of juror impasse.

Howard, 941 S.W.2d at 121. Rather, the court may do so if it determines, in its

8
Appellant argues that escape must be a lesser-included offense of capital murder
because the trial court included the statutory definition of escape in the charge. However, the
statutory definition was not applicable to the capital-murder charge but to the lesser-included
“murder in the course of another offense” charge that appellant also received. Appellant received
the following lesser-included offense charges: murder in the course of the commission of another
offense (TEX . PENAL CODE §19.02(b)(3)), aggravated assault (TEX . PENAL CODE §22.02(a)),
manslaughter (TEX . PENAL CODE §19.04), and criminally negligent homicide (TEX . PENAL CODE
§19.05).
9
Formerly codified as Article 37.071 §2(e). Howard discusses the former codification of
the article which is substantively the same.
 MARTIN - 36

discretion, that the jury has been kept together for such a time as to render it altogether

improbable that it can agree. Id.; see also Article 36.31. When reviewing the trial court’s

discretion in this regard, this Court will consider the sheer length of the trial and amount

of evidence presented to the jury. Id.; Green v. State, 840 S.W.2d 394, 407 (Tex. Crim.

App. 1992).

The record shows that the evidence in this case took eleven days to present and

involved 43 different witnesses and 122 admitted exhibits. Following closing arguments

at punishment, the jury was sent to deliberate at 11:09 a.m. At 2:37 p.m., the jury sent out

the charge with an attached note. The jury had answered “yes” to special issue one and

the issue was signed by the foreperson on the verdict form. Special issue two was not

answered, but the accompanying note stated: “On special issue #2 division is 9 no 3 yes.

Guidance?”

Appellant argued that the jury had returned a final verdict because the jury was

complying with the instruction on page four of the punishment charge which reads:

If in considering Special Issue Number 2 the vote of the jurors is not
unanimously “NO” or not at least ten (10) in favor of a “YES”, then there
shall be no answer for that Special Issue and the Jury Foreman should not
sign his or her name to any answer form for that Special Issue Number 2.

Therefore, appellant asserted that the trial court must accept this as a final verdict and

impose a life sentence. The trial court overruled the request and gave the jury the

following instruction: “Please continue to follow the court’s instructions as contained in

the court’s charge and continue to deliberate.” Appellant objected that this instruction
 MARTIN - 37

was coercive and that the jurors who answered “yes” to the second special issue would be

“bullied” by the other jurors.

At 3:24 p.m., the jury sent out another note regarding evidence of appellant’s

mental-health issues. Appellant again reurged his objection and stated that “we feel at

this point that deliberations are now becoming coercive in nature to try to get the three

hold outs to change their verdict in order to give a death sentence to [appellant].” The

State responded that there was no evidence of coercion and that the jury had barely started

deliberating as they had only been out for four hours and this was a long case. The trial

court again overruled appellant’s objection, noting that there was nothing before him that

would lead him to the conclusion that “any bullying was going on.”

At 4:40 p.m., the jury sent out a third note requesting to have testimony read back

to them. Appellant again reurged his objection which the trial court again denied. The

jury was recessed until the following afternoon at 1:00 p.m., so that the court reporter

could locate the requested testimony and one of the jurors could attend a funeral.

When court reconvened the next afternoon, appellant again urged his objection to

the jury’s continued deliberation. The trial court overruled the objection. The jury

returned its verdict at 3:15 p.m., having unanimously answered “yes” to the first special

issue and “no” to the second special issue. The jury was polled, and each juror answered

that this was his or her verdict.
 MARTIN - 38

Appellant also raised this issue in his Motion for New Trial.10 Appellant attached

an affidavit by juror Jenkins wherein she stated that she and the other two jurors who

originally voted “yes” on the second special issue were harassed and bullied into

changing their answers. She also stated that because the judge sent the case back to them

to continue deliberating, she believed that the jury had to be unanimous on their answer

before a verdict could be reached. She stated that she would not have changed her vote to

“no” had she not believed this.

At the motion for new trial hearing, Nash, the jury’s foreman, testified that when

he sent the “9-3” note out, the jury had not yet taken a formal vote on the second special

issue – everyone had just expressed their initial opinions. Nash was merely hoping that

the trial court would tell them to take a break for the rest of the day because it had been a

long trial and everyone was tired. No juror – not even Jenkins – testified to changing his

or her vote because of the trial court’s instruction to continue deliberations.11

The trial court is not bound to declare a mistrial at the first sign of jury impasse.

10
We express no opinion as to whether the admittance of this evidence was
proper; however, as no objections were lodged, the testimony and affidavits of the jurors
are available for our consideration in determining whether reversible error occurred. See
Salazar v. State, 38 S.W.3d 141, 147 (Tex. Crim. App. 2001); see also McQuarrie v.
State, No. PD-0803-11, slip op. at 9-18, ___ S.W.3d ___ (Tex. Crim. App. Oct. 10, 2012).

11
Appellant contends that several jurors testified at the motion for new trial hearing that
they thought that they were “coerced” into believing that the verdict had to be “unanimous” or
they “all had to agree” either 12-0 or 10-2, because the trial court instructed them to continue
deliberating. However, we have reviewed the record and we do not find that any juror, including
Jenkins, testified as such.
 MARTIN - 39

Howard, 941 S.W.2d at 121. Here, the jury first asked for guidance from the trial court

when it had deliberated for a period of less than three-and-a-half hours. This trial

involved a great deal of evidence: 43 witnesses and 122 exhibits, presented during eleven

days of guilt and punishment testimony. The jury had obviously finished deliberating on

the first special issue, but there was no indication that they were finished deliberating on

the second special issue. The note did not say the jury was deadlocked but merely stated

that their current “division” was “9 no 3 yes.” The fact that the jury asked to see evidence

and have testimony read back is further proof that they had not yet finished deliberating.

The trial court did not err when it instructed the jury to continue deliberations. See id. at

121-22 (trial court did not err giving instruction to continue capital-punishment

deliberations after jury note said they were “deadlocked” at 10-2 after eight hours of

deliberating); Green, 840 S.W.2d at 407 (trial court did not err in instructing jury to

continue deliberations and overruling motion to impose a life sentence after jury sent

“deadlocked” note after six-and-a-half hours of deliberating). Point of error nine is

overruled.

JURY CHARGE: PUNISHMENT PHASE

In point of error eleven, appellant asserts that he was harmed when the trial court

overruled his objection that the punishment charge failed to instruct the jury that

“probability” meant “more likely than not.” In point of error twelve, he argues that he

was harmed when the trial court overruled his objection that the charge failed to define
 MARTIN - 40

the phrase, “reduce moral blameworthiness.” In point of error thirteen, appellant claims

that he was harmed when the trial court overruled his objection that the charge failed to

instruct the jury that “society” meant “society in prison,” and not the free world.

We have previously decided these issues adversely to appellant. See Saldano v.

State, 232 S.W.3d 77, 107 (Tex. Crim. App. 2007)(“probability”); Druery v. State, 225

S.W.3d 491, 509 (Tex. Crim. App. 2007)(“probability,” “moral blameworthiness”);

Hunter v. State, 243 S.W.3d 664, 672 (Tex. Crim. App. 2007) (“society”); Blue v. State,

125 S.W.3d 491, 504-05 (Tex. Crim. App. 2003)(“probability,” “moral

blameworthiness,” “society”). Appellant provides no argument or authority to persuade

us to revisit these issues. Points of error eleven, twelve, and thirteen are overruled.

CONSTITUTIONALITY OF THE TEXAS DEATH PENALTY

In points of error fourteen and fifteen, appellant argues that the Texas capital-

sentencing scheme is unconstitutional because it fails to assign a burden of proof on the

mitigation special issue and that the trial court erred in rejecting his request for an

instruction assigning the burden to the State. We have previously rejected these

arguments. See Blue, 125 S.W.3d at 500-01; Druery, 225 S.W.3d at 509. Further, this

Court has held that the mitigation special issue is a defensive issue for which the State has

no burden of proof. Williams v. State, 273 S.W.3d 200, 221-22 (Tex. Crim. App. 2008).

Points of error fourteen and fifteen are overruled.

In point of error sixteen, appellant posits that the mitigation issue is
 MARTIN - 41

unconstitutional because meaningful appellate review of the sufficiency of the evidence is

impossible. We have previously rejected the claim that the issue violates the constitution

because it deprives a defendant of “meaningful appellate review.” Russeau v. State, 171

S.W.3d 871, 886 (Tex. Crim. App. 2005); Prystash v. State, 3 S.W.3d 522, 535-36 (Tex.

Crim. App. 1999); Green v. State, 934 S.W.2d 92, 106-07 (Tex. Crim. App. 1996);

McFarland v. State, 928 S.W.2d 482, 498-99 (Tex. Crim. App. 1996). Point of error

sixteen is overruled.

In appellant’s seventeenth and eighteenth points of error, he argues that the “12-10

rule” of Article 37.071, which requires at least ten votes for the jury to return a negative

answer to the first special issue and at least ten votes for the jury to return an affirmative

answer to the second special issue, violates the Eighth Amendment to the United States

Constitution. We have repeatedly rejected identical claims. Russeau, 171 S.W.3d at 886;

Lawton v. State, 913 S.W.2d 542, 558-59 (Tex. Crim. App. 1995). In point of error

nineteen, appellant further posits that the “12-10 rule” violates his Sixth Amendment right

to an impartial jury. Appellant presents no argument or authority applying the Sixth

Amendment to this provision of Article 37.071; therefore, this issue is inadequately

briefed. See T EX. R. A PP. P. 38.1(I). Points of error seventeen, eighteen, and nineteen are

overruled.

Finally, in his twentieth point of error, appellant contends that Article 37.071

violates the Eighth Amendment because it fails to require that jurors be informed that a
 MARTIN - 42

single holdout juror on any special issue will result in an automatic life sentence. We

have previously decided this issue adversely to appellant. Russeau, 171 S.W.3d at 886;

Shannon v. State, 942 S.W.2d 591, 600-01 (Tex. Crim. App. 1996); Lawton, 913 S.W.2d

at 559. Point of error twenty is overruled.

We affirm the judgment of the trial court.

DELIVERED: October 31, 2012
DO NOT PUBLISH