Batiste, Tedderick R.

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. AP-76,600

TEDDRICK BATISTE, Appellant

v.

THE STATE OF TEXAS

ON DIRECT APPEAL FROM THE 174TH JUDICIAL DISTRICT COURT
HARRIS COUNTY

C OCHRAN, J., delivered the opinion of the Court in which K ELLER, P.J., and
P RICE, W OMACK, J OHNSON, and A LCALA, JJ., joined. K EASLER, J., concurred. M EYERS
and H ERVEY, JJ., did not participate.

OPINION

In June 2011, a jury convicted Teddrick Batiste of capital murder for the robbery and

murder of Horace Lee Holiday.1 Based on the jury’s answers to the special issues set forth

in Texas Code of Criminal Procedure Article 37.071, Sections 2(b) and 2(e), the trial judge

1
TEX . PENAL CODE § 19.03(a)(2).
 Batiste Page 2

sentenced Batiste to death.2 After reviewing Batiste’s twenty-two points of error on direct

appeal, we conclude that they are without merit. Accordingly, we affirm the trial court’s

judgment.

Background

In the early morning hours of April 19, 2009, appellant, a member of the Five Deuce

Hoover Crips, was at home getting some tattoos, when he looked in the mirror, thinking

about all of his bills. He asked his friend, Loc, to “ride around” in his Buick with him

looking for something to steal because “that’s the way you get money.” After fruitlessly

cruising the streets for a while, they ended up at an after-hours club on Veteran’s Memorial

Drive on the north side of Houston. Appellant saw a white Cadillac coming out of the

parking lot, and he decided that he wanted the Cadillac’s fancy rims. “I just look at the rims,

and I know what the rims are worth. . . . I could get $3,000 on the streets.”

Appellant started following the Cadillac, and they drove for miles down the freeway.

Eventually the driver must have noticed him, because the Cadillac began “swanging” from

the right to the left lane and back again. Appellant was scared because the driver was acting

“street smart,” but he didn’t want to show any fear because he and Loc were Crips, so he told

Loc to lean back while appellant pulled up even with the Cadillac and started shooting at the

driver through Loc’s passenger window. He shot the driver four or five times with his nine-

millimeter, semi-automatic Glock pistol.

2
TEX . CODE CRIM . PROC. art. 37.071 § 2(g).
 Batiste Page 3

The Cadillac exited the freeway, pulled into an Exxon station, and ran into one of the

gas pumps. Appellant drove into the station and saw the badly wounded driver slowly come

out of the Cadillac, crying “Help, help, help.” The man collapsed on the concrete. Appellant

thought, “[M]an, this is my chance. I got to get those wheels. . . . And I got my gun, and I

put my hat on, and I had a ski mask.” He told Loc to drive the Buick to appellant’s wife’s

apartment, and then appellant ran over to where Mr. Holiday, the driver, was lying on the

ground. When he saw the man move, he shot him several more times in the back and head.

Mr. Holiday died.

Appellant jumped into the Cadillac and drove out of the Exxon station and back onto

the Eastex freeway, heading north. He soon noticed a police car behind him and realized that

he would be caught, but first he led the pursuing officers on a high-speed chase for about

twelve miles. It was not until officers placed a spike strip across the road and appellant ran

over it, destroying the Cadillac’s passenger-side tires, that he was finally forced to stop.

Appellant was taken into custody and placed in a patrol car. One officer, who had

noticed a great deal of blood on the Cadillac’s steering wheel and driver’s seat, came over

to ask appellant if he needed medical attention. Appellant told him that he was “fine”; it

wasn’t his blood, it “belongs to the guy I took the car from.” After appellant was taken to

the homicide division, he gave officers a recorded statement confessing to the capital murder

of Horace Holiday. He then gave two more confessions–one to a second capital murder and
 Batiste Page 4

one to a separate aggravated robbery.3

The jury found appellant guilty of capital murder. During the punishment phase, the

State offered evidence that, on March 23, 2009 (a little more than three weeks before killing

Horace Holiday), appellant robbed Walter Jones, his wife, Kari, and David McInnis, at the

Phat Kat Tats tattoo shop. A little before 11:00 p.m., appellant parked his Buick in front of

the Shipley’s Donuts shop in the strip center where the tattoo shop was located. Then he and

two cohorts marched into the shop, wearing blue bandanas over their faces and carrying

semi-automatic pistols. Appellant screamed, “This is a fucking robbery!” Each of the

robbers grabbed one of the three adults, and each put a gun to that person’s head. Walter

Jones, the owner of Phat Kat Tats, noticed that these robbers were well organized and likely

had done this before. Kari, very afraid that their five-year-old son might come into the shop

from the next room, pleaded with the robbers not to shoot him if he did so. One of the

robbers started yelling at her, “Shut up, bitch, I’ll kill you, I’ll kill you. Shut up.” The

robbers made them empty out their pockets. Disappointed with the result, the robbers then

scooped up two laptops, several cell phones, a digital camera, and three tattoo machines.

They ran out of the shop and fled in appellant’s Buick. The surveillance camera at the nearby

Shipley’s Donuts caught appellant, his cohorts, and the Buick, on tape.

Two weeks later–shortly after midnight on April 8, 2009–appellant drove his Buick

through the strip-mall center where the Black Widow tattoo parlor was located. He was

3
Evidence of those separate crimes was introduced only at the punishment phase of the trial.
 Batiste Page 5

“casing” it for a robbery. He backed his Buick into a parking slot in front of the shop, and

then he and two other men walked into the tattoo parlor. Steve Robbins, the shop’s owner,

was tattooing Joshua’s arm, while two of Joshua’s friends–Anthony and Christie–were

napping on the couch. Two of the robbers held Anthony and Christie at gunpoint, while the

third robber went toward the back where Steve was tattooing Joshua. Appellant and the other

two robbers were yelling and “cussing” at everyone, demanding money and wallets. When

Steve told the robbers that they had gotten all the money and they should leave because the

store had surveillance cameras, appellant turned back to him and said, “What, mother-

fucker?” and began shooting Steve. Appellant and another robber shot a total of sixteen

bullets before they finally fled in appellant’s Buick. Steve died.

The State also introduced evidence of appellant’s long criminal history, his gang-

related activities, and his various acts of violence and intimidation while in jail.

Horace Holiday’s mother, Lisa Holiday Harmon, gave the jurors a brief glimpse into

her son’s life and how he had saved up the money to buy the special rims for his Cadillac just

two weeks before his death. She told the jury that, after the murder, Horace’s grandmother

moved into Horace’s old room to be closer to his memory. Horace’s grandmother testified

that, after Horace’s death, the “whole family fell apart.”

During his punishment case, appellant called a dean from the University of Houston

to testify to the TDCJ inmate classification system and life in prison. He also called a high-

school track and football coach who said that appellant was a gifted athlete in middle school,
 Batiste Page 6

but that he “disappeared” after he got into trouble for car thefts. Appellant’s former boss

testified that appellant worked at Forge USA for over six months as a helper on the forging

crew. He never had any problems with appellant. Appellant’s girlfriend, Stephanie Soliz,

testified that she and appellant lived together with her two children, one of whom was

fathered by appellant. Appellant was “the best” father. Stephanie admitted that they smoked

a lot of marijuana at home and that appellant had a second job as a “fence” for stolen

property. She was “okay” with appellant selling stolen property, as long as he wasn’t doing

the stealing himself.

Appellant’s younger brother, Kevin Noel, testified that appellant was “a very caring

and loving brother.” He did not try to get Kevin to commit crimes or join the Crips gang, but

Kevin did join the Line Five Piru Bloods gang and has the gang’s tattoos. Kevin would pick

appellant up from work and bring him back to his apartment where Kevin smoked dope with

appellant and Stephanie. Appellant would write him letters from jail suggesting various new

gang tattoos and bragging about having sex with a nurse in the infirmary. Appellant also

wrote a letter from the jail to a friend telling him that he had broken his hand fighting with

“a white guy from the military.” When that man had interfered with appellant’s phone call,

appellant broke his jaw.

Darlene Beard testified that appellant was her “favorite grandson.” She took care of

him until he was nine years old. After that, she saw him every Thanksgiving, and sometimes

on her birthday or Mother’s Day. She never saw appellant do anything bad. “I can only tell
 Batiste Page 7

you about the good things that I know concerning my grandchild.” Mrs. Beard said that

appellant has a “huge” family and does not have any conflict with any member of that family.

Appellant’s mother testified that she was barely sixteen when appellant was born, so her

mother took care of him while she finished high school. He was a healthy, happy, church-

going child without any mental-health or learning problems until he started getting into

trouble in middle school. She knew that appellant was sent to TYC for stealing cars, but he

never told her about his other crimes, being in a gang, or having gang tattoos.

Appellant testified that he had a happy childhood, but when he was in middle school,

he began selling Ritalin because he wanted to make money. After he was caught, he was sent

to an alternative school for the rest of eighth grade and half of ninth grade. Appellant said

that, after TYC, he committed crimes “just like to keep money in my pocket, keep everything

I needed.” Appellant stated that he spent some of his money on marijuana for Stephanie and

himself, but he didn’t commit crimes to get drug money. He said that he really loves his two

boys, Kash and Alex, and would guide them and tell them “what’s right, what’s wrong.”

Appellant testified that he could be a positive influence on people in prison, and he

would distance himself from the Crips members “and just pick different goals.” Appellant

stated that he had followed the jail rules “[t]o the best of my ability. . . . Everytime, it’s

always mutual combat. It’s never been where I just hit somebody. I hit them back.” But

appellant did admit that, when faced with the choice to show empathy and help Horace

Holiday, who was bleeding to death on the concrete, appellant made the choice to shoot him
 Batiste Page 8

several more times and steal his car.

When appellant was in jail, Stephanie tried to move on with a new boyfriend, Aaron.

Appellant wrote rap lyrics about shooting him: “But Aaron ain’t crazy, man. That nigga

respect my game. He’s a target up in my range. Extended clip to his brain.” Appellant

admitted that his jailhouse rap lyrics could be seen as glorifying capital murder (“I popped

and he dropped”), the gangster lifestyle, and violence in general. Appellant agreed that he

recruited the gang members for the Phat Kat Tats robbery and told them what to do. He

admitted that he was the leader in the Black Widow capital murder as well. And he said that

those were not his first robberies.

After deliberating, the jury answered the special issues in such a manner as to require

the trial judge to sentence appellant to death.

The Admission of Appellant’s Blue Necklace

In his first eight points of error, appellant complains that the trial judge erred in

admitting into evidence, during the punishment phase, the blue necklace that appellant was

wearing when he was arrested after murdering Horace Holiday. Appellant complains that

its admission, and expert testimony about the necklace, (1) violated his right to the free

exercise of religion under the federal and Texas constitutions, (2) was irrelevant under

Article 37.071, (3) should have been excluded under Rule 403, and (4) was not properly

authenticated. We reject these claims.

Neither the necklace, nor a photograph of it, is in the appellate record, but Clint
 Batiste Page 9

Ponder, a Houston Police Department gang officer, described the necklace as being light

blue4 with a “grim reaper” figure attached. Officer Ponder stated that it was a “Santa Muerte

necklace,” and he explained its significance:

Santa Muerte is a saint that a lot of guys will worship to ward off the police or
. . . different people worship it for different things, but in a criminal world, you
see a lot of guys wearing these, drug traffickers wear necklaces or detailed [on]
the back of their car or shrines in their apartment. And they pray to the saint
for various reasons, but in the criminal world, it’s to keep the cops away. If
you’re making a big drug run across the state, a big package of marijuana from
one state to the next, you wear this in hopes that you get to your destination
without the cops stopping you, but it’s–in the criminal world, it’s worn for
that, to keep the police away and hope your criminal endeavor goes okay.5

This was the extent of the testimony about the necklace. Officer Ponder then spent more than

twenty pages of testimony describing appellant’s many gang-related tattoos and their

significance. At trial, appellant’s objection to the necklace and Officer Ponder’s testimony

about it was “relevance, [and] lack of foundation on the part of the witness. Not that they

didn’t try to get it in. And a 403 objection.” Having failed to object on the basis of any First

Amendment or religious issue, appellant failed to preserve his first three claims for our

review.6

4
Blue is the Crips’s gang color. Appellant wore a blue bandana when he committed the
aggravated robbery at Phat Kat Tats and he had that bandana with him when he shot Mr. Holiday in
the head at the Exxon station. He also wore blue coverall Dickies during the aggravated robbery.
5
Officer Ponder agreed that “non-gang members, non-criminals, also have items that might
have Santa Muerte on them” and that “[n]ot everybody wearing a Santa Muerte is a criminal.”
6
TEX . R. APP . P. 33.1(a)(1)(A); see Broxton v. State, 909 S.W.2d 912, 918 (Tex. Crim. App.
1995) (capital-murder defendant did not preserve claim that trial judge improperly refused to limit
questioning of witness; point of error on appeal must correspond to objection at trial and objection
 Batiste Page 10

at trial stating one legal theory will not preserve a different legal theory on appeal) (citing Johnson
v. State, 803 S.W.2d 272, 292 (Tex. Crim. App. 1990)). Even constitutional errors may be forfeited
if not properly preserved at trial. Id.; see generally Clark v. State, 365 S.W.3d 333, 339-40 (Tex.
Crim. App. 2012) (explaining rationale for contemporaneous-objection rule and requirement that
complaint on appeal match objection at trial; defendant’s objection of “badgering” witness did not
preserve constitutional due-process claim).
Even if appellant had objected on a First Amendment basis, claiming that the admission of
the necklace infringed upon his right to his free exercise of religion, the trial judge would not have
abused his discretion in overruling that objection. At no time did the prosecutor or the gang expert
suggest that appellant’s necklace had any significance to the exercise of a bona fide religion. Its
established relevance in criminal trials is to criminal street gangs and their “worship” of “Santa
Muerte” or “Saint Death” who has been described as “the drug trafficker’s god” and is “used as a
protector of drug traffickers and, you know, [would] take care of their family.” Gonzalez v. State,
984 N.E.2d 725, *2, *6 (Ind. Ct. App. March 8, 2013) (not designated for publication); see also
Mireles v. State, No. 05-12-00040-CR, 2013 WL 226190, *4 (Tex. App.—Dallas Jan. 18, 2013) (not
designated for publication) (“the State presented evidence that [defendant] is a follower of Santisima
Muerte, or Santa Muerte, which is a religion, or cult, depicted by a skeletal figure resembling the
‘grim reaper’ and associated with drug traffickers and gangs”; expert witness said that “drug cartel
members put the picture of Santa Muerte on kilos of cocaine to protect it.”); United States v. Felix,
2013 WL 474542, *1 (D.C. Utah Feb. 7, 2013) (not designated for publication) (defendant, stopped
for speeding, raised a “Santa Muerte” pendant to his lips and kissed it; officer knew that a “Santa
Muerte” depicts the grim reaper, which he knew “was often worn by individuals involved in drug
trafficking.”); United States v. Garcia, ___ F. Supp. 2d ___, 2013 WL 210184, *2 (E.D. Tenn. Jan.
11, 2013) (officer exercised caution when interacting with defendant in his car because defendant
was wearing “Santa Muerte” pendant which officer knew was “worn by members of drug
distribution gangs in Mexico”; noting that “fairly or unfairly Santa Muerte has been adopted by
members of Mexican drug cartels”); United States v. Pena Ponce, 588 F.3d 579, 582 (8th Cir. 2009)
(officer knew that “Santa Muerte” statue that driver kicked under car seat “is commonly used by drug
traffickers for protection”); United States v. Beltran–Aguilar, 412 Fed. Appx. 171 (10th Cir. 2011).
In one recent case, the federal district court rejected the defendant’s claim that the admission
of expert testimony about a “Santa Muerte” statue and its connection to drug trafficking should be
excluded under either the First Amendment or Federal Rule of Evidence 403. United States v.
Goxcon–Chagal, 885 F. Supp. 2d 1118, 1125 (D.N.M. 2012). The court noted that the government
asserted that “Santa Muerte” is not a saint and is not recognized as such by the Catholic Church.
Rather, it is a “narco-saint.” Id. The court noted that various other courts have upheld the
admissibility of expert testimony concerning “Santa Muerte” as a “tool of the trade of drug
traffickers.” Id. at 1146. And, after a lengthy analysis, the court held that the evidence and expert
testimony about “Santa Muerte” did not infringe on religious freedom or violate the Establishment
Clause. Id. at 1154-57. The court explained,

While the religion associated with Santa Muerte is the only one that is at issue, the
introduction of the evidence does not seek to punish [the defendant] for worshiping
 Batiste Page 11

We turn to appellant’s preserved claim that the necklace and Officer Ponder’s

testimony were irrelevant under Article 37.071. Under that article, the trial judge may admit

“evidence . . . as to any matter that the court deems relevant to sentence” 7 during the

punishment phase of a capital-murder trial. Evidence of appellant’s gang membership in the

Santa Muerte, but only for having drugs in her possession. While worshipers of Santa
Muerte are at a disadvantage because they may be suspected of and successfully
prosecuted for drug activity more than non-worshipers of Santa Muerte, the presence
of prayers and statues is not a necessary or sufficient condition for a criminal
conviction.

Id. at 1157. The court elaborated on the defendant’s “free exercise” claim:

While it might be argued that the introduction of the Santa Muerte evidence places
a burden on the exercise of her religion, it is incidental and not great enough to
violate the Constitution. She is facing punishment for the drugs and gun found in her
possession, not for her beliefs. Her religious beliefs are neither sufficient or necessary
conditions for criminal punishment.

Id. at 1159; see also United States v. Esquivel-Rios, 2012 WL 1154508, *6 (D. Kan. April 5, 2012)
(not designated for publication) (rejecting defendant’s claim that evidence about his possession of
a “Santa Muerte” book infringed upon his freedom of religion; “the evidence presented at trial did
not go into the specific content of the book or Defendant’s religion, but rather, that this sort of
material is an artifact of the narco-traffic culture similar to a rabbit’s foot.”). Appellant has not cited
or distinguished these cases.
In this case, Officer Ponder never referred to appellant’s religious beliefs or affiliations; he
simply stated that the Crips gang uses the color blue as was used in the necklace and that the “grim
reaper” pendant is used by criminal gangs. The logical connection to be made is between “Santa
Muerte” necklace and gang membership and criminal activities, not between wearing a “Santa
Muerte” necklace and being religious or being Catholic.
In his third point of error, appellant complains that the trial judge erred in admitting other
evidence of appellant’s religious beliefs and practices from other witnesses, but he did not object to
any of that testimony at trial. He has thus forfeited this complaint. TEX . R. APP . P. 33.1(a).
7
TEX . CODE CRIM . PROC. art. 37.071, § 2(a)(1). See Davis v. State, 329 S.W.3d 798, 803
(Tex. Crim. App. 2010) (trial judge abuses his discretion in admitting evidence at punishment stage
of capital-murder trial “only when his decision lies ‘outside the zone of reasonable disagreement.’”).
 Batiste Page 12

Five Deuce Hoover Crips criminal street gang was relevant and admissible,8 as was evidence

of his many gang tattoos,9 as was the very brief description of the “Santa Muerte” necklace

that he was wearing when arrested.10 All of this evidence is indicative of the defendant’s

character and is relevant to the issue of future dangerousness.11

Appellant also argues that the admission of the necklace and expert testimony

concerning its significance over his Rule 403 objection was error. Texas Rule of Evidence

403 provides that otherwise relevant evidence “may be excluded if its probative value is

substantially outweighed by the danger of unfair prejudice[.]” 12 The balance between

8
See Vasquez v. State, 67 S.W.3d 229, 239-40 (Tex. Crim. App. 2002) (evidence of
defendant’s membership in the Mexican mafia admissible to show motive for gang-related murder
and evidence of his tattoo was admissible to show gang membership); Mason v. State, 905 S.W.2d
570, 576-77 (Tex. Crim. App. 1995) (trial judge did not err by admitting evidence of the defendant’s
membership in the Aryan Brotherhood because that membership “was relevant to the issue of future
dangerousness and [was] outside the protection of the First Amendment.”).
9
Connor v. State, 67 S.W.3d 192, 201-02 (Tex. Crim. App. 2001) (expert testimony in
punishment phase of capital-murder trial explaining the significance of defendant’s tattoos was
“relevant to defendant’s character and hence to punishment.”).
10
Davis, 329 S.W.3d at 806 (“Appellant’s Satanic tattoo, books, writings, and drawings are
indicative of his character, and we have held that such evidence is relevant to the question of future
dangerousness at punishment.”); see also Goxcon-Chagal, 885 F. Supp. 2d at 1146-48 (“Various
district court judges in border states have permitted evidence regarding Santa Muerte and Jesus
Malverde for the purpose of showing it is a tool of the trade of drug traffickers. . . . There is no
reason to re-invent the wheel here: the reliability of expert testimony dealing with ‘tools of the trade’
has been well recognized by courts[.]”).
11
See Davis, 329 S.W.3d at 805-06; Connor, 67 S.W.3d at 201-02; Mason, 905 S.W.2d at
576-77; see also Jones v. State, 944 S.W.2d 642, 653 (Tex. Crim. App. 1996) (evidence of
defendant’s gang membership was relevant and admissible during punishment phase of capital-
murder trial); Gutierrez v. State, AP-74,341, 2004 WL 3092763, *6 (Tex. Crim. App. April 21,
2004) (not designated for publication) (same).
12
TEX . R. EVID . 403.
 Batiste Page 13

probative value and unfair prejudicial effect “is always slanted toward admission, not

exclusion, of otherwise relevant evidence.”13 Furthermore, relevant evidence may be

excluded only if the danger of unfair prejudicial effect substantially outweighs the probative

value of the evidence.14

Appellant contends that the necklace and Officer Ponder’s testimony were “used by

the State to prove that Appellant is a criminal [who] planned on committing crimes the night

he was arrested.”15 While appellant was arrested immediately after he had committed a

capital murder, the State did not use the Santa Muerte necklace to prove that fact. The

necklace was not even offered into evidence until the punishment phase. Although its

probative value concerning appellant’s character and gang membership was not particularly

compelling–not nearly as compelling as the myriad gang tattoos on his body–it carried very

little danger of unfair prejudice. There was little, if any, potential for testimony about the

“Santa Muerte” necklace to impress the jury “in some irrational but nevertheless indelible

13
De La Paz v. State, 279 S.W.3d 336, 343-44 (Tex. Crim. App. 2009) (trial judge has great
discretion in his Rule 403 balancing analysis; “As long as the trial court’s ruling is within the ‘zone
of reasonable disagreement,’ there is no abuse of discretion, and the trial court’s ruling will be
upheld.”).
14
When making a balancing analysis, the trial judge may consider various factors, including
the following: (1) how compellingly the evidence serves to make a fact of consequence more or less
probable, (2) the potential for the evidence to impress the jury in an irrational but nevertheless
indelible way, (3) the time the proponent needs to develop the evidence, and (4) how much the
proponent actually needs the evidence to prove a fact of consequence. Powell v. State, 189 S.W.3d
285, 287 (Tex. Crim. App. 2006). Appellant has not explained, either at trial or on appeal, how any
unfair prejudicial effect of this necklace and Officer Ponder’s testimony concerning its significance
to gangs significantly outweighed its probative value.
15
Appellant’s Brief at 29.
 Batiste Page 14

way.”16 Further, the time spent discussing the necklace was one-twentieth the time spent on

appellant’s tattoos, which were a much more graphic display of appellant’s criminal-gang

affiliation. Finally, Officer Ponder’s testimony that criminals use a Santa Muerte pendant

or statue to ensure the success of their crimes and to ward off the police focused the jury’s

attention on the narrow “criminal gang” probative value of the evidence and away from any

possible reference to religious faith or Catholicism.17 The trial judge did not abuse his

discretion in overruling appellant’s Rule 403 objection.18

Appellant also complained at trial to the State’s lack of foundation or authentication

of the necklace. Under Rule 901,

The requirement of authentication or identification as a condition precedent to
admissibility is satisfied by evidence sufficient to support a finding that the
matter in question is what its proponent claims.19

As appellant acknowledges, authentication of a physical item may be accomplished by

testimony from a witness with knowledge that the item is what it is claimed to be.20

Appellant complains that Officer Ponder did not establish that appellant himself considered

16
Powell, 189 S.W.3d at 287.
17
Although the prosecutors emphasized appellant’s character for violence and zeal for his
“gangsta lifestyle” during their closing arguments, they never mentioned appellant’s necklace.
18
See Davis, 329 S.W.3d at 806; De La Paz, 279 S.W.3d at 343.
19
TEX . R. EVID . 901(a).
20
TEX . R. EVID . 901(b)(1); see Angleton v. State, 971 S.W.2d 65, 68 (Tex. Crim. App. 1998);
Dossett v. State, 216 S.W.3d 7, 17 (Tex. App.–San Antonio 2006, pet ref’d); Hooker v. State, 932
S.W.2d 712, 715-16 (Tex. App.–Beaumont 1996, no pet.).
 Batiste Page 15

the “Santa Muerte” necklace “a symbol of being a member of a ‘Hispanic gang,’ ‘drug

cartel,’ or any other type of gang.”21 While appellant did not testify that his blue necklace

symbolized his gang membership, he did testify extensively about his Crips membership and

how he wore and carried distinctive blue attire–his blue bandana and his blue Dickies–to

display his gang membership while committing crimes. He admitted that “some” of his rap

lyrics glorify gang violence, even in jail.22

Appellant confuses the concept of authentication with that of relevance.

Authentication deals simply with the question of whether this blue necklace–Exhibit 141–is

the same item that was collected from appellant on the night that he murdered Horace

Holiday. Under Rule 901, the proponent need not establish beyond all doubt that the item

is what the proponent claims it is.23 Instead, the trial judge must simply decide whether the

21
Appellant’s Brief at 31.
22
One set of appellant’s jail-house rap lines was as follows:

I run the pacc like a chief
supplyin all the gang and the heat.
We survive betta in the clutch
and live off the thin line in the street.
Still riden for them swangs. H-town thang.
Tint and bang off in the lane
putting diamonds in the grain.
23
See Tienda v. State, 358 S.W.3d 633, 638 (Tex. Crim. App. 2012) (“In performing its Rule
104 gate-keeping function, the trial court itself need not be persuaded that the proffered evidence is
authentic. The preliminary question for the trial court to decide is simply whether the proponent of
the evidence has supplied facts that are sufficient to support a reasonable jury determination that the
evidence he has proffered is authentic” under Rule 901); Druery v. State, 225 S.W.3d 491, 502 (Tex.
Crim. App. 2007) (“The trial judge does not abuse his or her discretion in admitting evidence where
he or she reasonably believes that a reasonable juror could find that the evidence has been
 Batiste Page 16

proponent has offered sufficient information for the jury to reasonably conclude that the item

is what the proponent claims it is.24

In this case, Deputy Campbell testified in the guilt phase that appellant was wearing

the blue necklace–State’s Exhibit 141–around his neck when he met with appellant in the

police station interview room to photograph him, collect his clothes, and obtain swabs for

forensic testing. He identified Exhibit 141 as the very same blue necklace that he collected

from appellant. Then, during the punishment phase, Officer Ponder testified and identified

Exhibit 141–the blue necklace that came from appellant–as a “Santa Muerte” necklace, one

favored by criminals to ensure success and ward off the police. It was at that point that the

State offered the necklace into evidence and the trial judge admitted it over appellant’s

objection. Appellant does not dispute that Exhibit 141 is genuine–that is it the blue necklace

that appellant was wearing on April 19, 2009. His concerns are focused only on its

relevance, an issue that we have already addressed.

In sum, appellant has failed to show that the trial judge abused his discretion in

admitting Exhibit 141, the blue necklace that appellant was wearing when he killed Horace

Holiday, along with Officer Ponder’s brief testimony concerning the significance of that

necklace.25 We therefore overrule points of error one through eight.

authenticated or identified.”).
24
See Tienda, 358 S.W.3d at 638; Druery, 225 S.W.3d at 502.
25
See Tienda, 358 S.W.3d at 638; Davis, 329 S.W.3d at 806; De La Paz, 279 S.W.3d at 343;
Mason, 905 S.W.2d at 577.
 Batiste Page 17

The Presence of the Deceased’s Family Members in the Courtroom

In points of error nine through eleven, appellant claims that the trial judge erred by

allowing Mr. Holiday’s family members to sit in the courtroom during the guilt stage of the

trial. He argues that the failure to exclude the family members under Rule 614 resulted in

“emotional outburst[s] and disruptions” that violated appellant’s rights to confrontation and

due process.

Before trial began, the prosecutor requested that the trial judge permit Mr. Holiday’s

mother, grandmother, and uncle to remain in the courtroom during the guilt phase because

none of them would be testifying during that stage of the trial and none had any first-hand

knowledge about Mr. Holiday’s murder. The prosecutor explained that Rule 614 explicitly

permits the victim in a criminal case to be exempted from the rule of sequestration (“The

Rule”) “unless the victim is to testify and the court determines that the victim’s testimony

would be materially affected if the victim hears other testimony at the trial.” 26 Although Mr.

Holiday’s family members were not literally “victims” under Rule 614, the prosecutor argued

that the rationale for the rule’s exemption applied to them.

The defense objected and asked that all family members be excluded because they

would likely become emotional.

I don’t see any way in a capital murder case that [having family members in
the courtroom] can be appropriate. . . . There’s no way we can get through this
trial without there being emotion out there. The jury is going to be looking

26
TEX . R. EVID . 614(4).
 Batiste Page 18

over at these people. They’re going to recognize them once they leave the
witness stand.27 . . . And there isn’t any way it can have anything but a
detrimental impact. Why don’t we put them in the jury box and let them do the
voting? That’s what we’re doing when we’re leaving them in the courtroom.
Just can’t do it.

The trial judge overruled the objection and permitted the three family members to

remain in the courtroom. Once, during the testimony of Dr. Chu, the medical examiner who

performed the autopsy on Mr. Holiday’s body, and again, when a deputy displayed pictures

of the Cadillac with the interior covered in Mr. Holiday’s blood, the family members shed

tears in the courtroom.28 The defense noted their emotion for the record and claimed that

their continued presence “just isn’t fair.”29 However, the only remedies that appellant

27
Mr. Holiday’s mother and grandmother were the last witnesses for the State during the
punishment phase of trial.
28
The prosecutor asked that the record reflect her evaluation of the family’s reaction to the
gruesome photographs and testimony:

I’m having the opportunity to observe the family right now and I don’t see any undue
emotion being exhibited. And I would like that to be clear for the record. I’ve heard
a couple of sniffles, but I’ve not seen crying to the degree that was expressed by
[defense counsel].
29
The record also shows that, during appellant’s punishment-phase testimony, an unidentified
spectator said “Amen” after the prosecutor asked appellant: “If you were scared [during the Black
Widow robbery and murder] why did you do this robbery in the first place?” We will not presume
that the unknown spectator was one of Mr. Holiday’s family members. After all, this comment was
made during testimony about an entirely different capital murder involving a different victim. The
defense did not object to this interjection, and thus we will not consider this incident as a part of
appellant’s claims. TEX . R. APP . P. 33.1(a)(1)(A). For inflammatory conduct or an outburst by a
spectator to be grounds for error, the appellant has the burden to ensure that the objectionable activity
is described and made a part of the complete record so that any error is preserved for appeal. See
Baker v. State, 797 S.W.2d 406, 408 (Tex. App.–Fort Worth 1990, pet. ref’d) (any error in failing
to grant mistrial based on “inflammatory” conduct was waived because defendant failed to ensure
that conduct was described in the record).
 Batiste Page 19

requested were the removal of the family members or a mistrial. A jury instruction was not

requested. We have held that, in the context of an outburst by a bystander or witness, a trial

judge’s instructions are generally sufficient to cure any impropriety because it is presumed

that the jury will follow those instructions.30

Appellant argues that Rule 614 prohibited Mr. Holiday’s family members from being

in the courtroom because they had been subpoenaed as possible witnesses. However, Article

36.03,31 a statute enacted for precisely this situation, explicitly supercedes Rule 614 and

requires a party opposing the presence of a victim’s close family members in the courtroom

to “make an offer of proof to justify the exclusion” of that person.32 Of course, the trial judge

30
Coble v. State, 330 S.W.3d 253, 292 (Tex. Crim. App. 2010); see also Landry v. State, 706
S.W.2d 105, 112 (Tex. Crim. App. 1985) (despite “commotion in the audience” caused by
deceased’s wife as she “was in the process of fainting and leaving the courtroom” and “outcry” by
victim’s brother both within sight and hearing of jury during closing argument, defendant failed to
show “how such emotional responses reasonably could have interfered with the jury’s verdict”);
Sparks v. State, No. AP-76,099, 2010 WL 4132769, *18 n.48 (Tex. Crim. App. Oct. 20, 2010) (not
designated for publication) (despite audience member’s crying and one victim’s father “rush[ing]
toward a break in the rail” separating the well of the courtroom from the audience during
prosecutor’s capital-murder punishment argument, disruption was not so great that it could not be
cured by instruction to disregard; defendant failed to show that the outburst interfered with the jury’s
verdict).
31
TEX . CODE CRIM . PROC. art. 36.03(a). That provision reads as follows:
Notwithstanding Rule 614, Texas Rules of Evidence, a court at the request of a
party may order the exclusion of a witness who for the purposes of the prosecution
is a victim, close relative of a deceased victim, or guardian of a victim only if the
witness is to testify and the court determines that the testimony of the witness
would be materially affected if the witness hears other testimony at the trial.
32
Id. art. 36.03(b). That provision states,
On the objection of the opposing party, the court may require the party requesting
exclusion of a witness under Subsection (a) to make an offer of proof to justify the
exclusion.
 Batiste Page 20

still maintains the inherent authority to exclude a victim or victim’s close family members

if necessary to maintain courtroom decorum,33 i.e., if that person’s conduct interferes with

normal trial proceedings.34

In this case, appellant failed to make any offer of proof that the testimony of Mr.

Holiday’s family members “would be materially affected” by remaining in the courtroom

during the guilt phase.35 Even on appeal, appellant does not point to any testimony from the

guilt phase that might have affected the very brief testimony during the punishment phase by

Mrs. Harmon or Mrs. Holiday concerning the deceased.36

33
Id. art. 36.03(c) (“Subsection (a) does not limit the authority of the court on its own motion
to exclude a witness or other person to maintain decorum in the courtroom.”).
34
See, e.g., Landry, 706 S.W.2d at 112 (“Conduct from bystanders which interferes with the
normal proceedings of a trial will not result in reversible error unless the defendant shows a
reasonable probability that the conduct interfered with the jury’s verdict”; stating that defendant
failed to show that “the emotional nature of family members throughout the trial” violated his right
to a fair trial).
35
See, e.g., Soria v. State, Nos. 07-10-00161 to 00163-CR 2012 WL 1570969, *5 (Tex
App.–Amarillo 2012, pet. ref’d) (not designated for publication) (relying on art. 36.03 and holding
that, when defense failed to give the trial judge any basis for believing that child victim’s testimony
would be affected if she remained in the courtroom before she testified, trial judge did not abuse his
discretion in allowing her to remain).
36
Appellant also asserts that he was denied the right to confront and cross-examine Mr.
Holiday’s uncle because that family member never testified. The right to confront and cross-
examine witnesses applies only to those who offer testimony or testimonial statements. See
Crawford v. Washington, 541 U.S. 36, 53-54 (2004) (the Confrontation Clause requires that a
defendant have the opportunity to confront the witnesses who give testimony against him). Mr.
Holiday’s uncle cannot be said to have “testified” against the defendant by sitting in the courtroom
during public proceedings, even when he may have exhibited some emotion. Appellant cites no
legal authority for his suggestion that “the presence and actions” of Mr. Holiday’s uncle in the
courtroom “were effectively testimonial.” We are also unable to find any. This aspect of appellant’s
claim has not been adequately briefed and presents nothing for review. See TEX . R. APP . P. 38.1(I).
Appellant also claims that the testimony given by Mr. Holiday’s mother was “impermissible
 Batiste Page 21

Instead, appellant argues that

[a] distraught family in the courtroom during legal proceedings is salient and
powerful. Counsel noted on the record that the jury was looking at the family.
The family was essentially a continual and compelling exhibit being published
to the jury.

That is one potential hazard in a society that cherishes the right to a public trial. The

defendant in a criminal trial has the constitutional right to a trial that is open to the public;37

and the public–including both the defendant’s and victim’s family members–also has a right

to attend criminal trials.38 As the Supreme Court has recently emphasized, “Trial courts are

victim impact testimony” because she told the jury that Mr. Holiday had saved his money to buy the
wheel rims for his Cadillac and had bought them just two weeks before his murder. Appellant
argues that her mention of Mr. Holiday’s “hard work to save the money to buy the rims stood in
obvious contrast to the evidence adduced by the State that Appellant had shot the complainant in
order to steal those same rims” and he calls that “an impermissible use of victim impact evidence
to compare the value of the complainant to other members of society.” Appellant’s Brief at 43.
Appellant did not object on this basis, however; he objected on the basis of hearsay, but did not
pursue his objection to a ruling by the trial judge. When appellant objected, the State agreed to ask
a different question and the trial judge responded “Okay.” Therefore, his hearsay complaint was not
preserved for review. TEX . R. APP . P. 33.1. But even if it had been, any error in Mrs. Harmon’s
testimony of what her son told her about saving money for the wheel rims was harmless. TEX . R.
APP . P. 44.2(b). And even if appellant had objected on the basis of comparing the relative merit of
Mr. Holidays’s hard work to buy these rims against appellant’s “easy” work of stealing them, we
have already held that this type of comparison is not forbidden. See Jackson v. State, 33 S.W.3d 828,
834 (Tex. Crim. App. 2000) (rejecting capital-murder defendant’s argument that State is not
permitted to compare the defendant’s worth to the victim’s worth because Payne v. Tennessee only
“discourages ‘measuring the worth of the victim compared to other members of society.’”); see also
Soffar v. State, No. AP.-75363, 2009 WL 3839012, *50 (Tex. Crim. App. Nov. 18, 2009) (not
designated for publication) (State’s argument comparing the value of the deceased victims to that
to defendant was not improper because the State did not compare the victims’ worth to other
members of society).
37
See Presley v. Georgia, 558 U.S. 209, 212 (2010) (reaffirming the defendant’s personal
right to a public trial under the Sixth Amendment).
38
Id. at 209 (trial court reversibly erred in excluding defendant’s uncle from voir dire
proceedings without seeking alternate methods to protect the right to a public trial); see also Press-
 Batiste Page 22

obligated to take every reasonable measure to accommodate public attendance at criminal

trials.” The Supreme Court explained the rationale for this rule:

The open trial thus plays as important a role in the administration of justice
today as it did for centuries before our separation from England. The value of
openness lies in the fact that people not actually attending trials can have
confidence that standards of fairness are being observed; the sure knowledge
that anyone is free to attend gives assurance that established procedures are
being followed and that deviations will become known. Openness thus
enhances both the basic fairness of the criminal trial and the appearance of
fairness so essential to public confidence in the system.39

The Texas Legislature has enacted a special crime-victim’s statute to ensure that the

family members of victims are entitled to attend the public proceedings of a criminal trial and

cannot be excluded simply because they are family members and therefore might possibly

become emotional. Article 56.02(b) states, “A victim, guardian of a victim, or close relative

of a deceased victim is entitled to the right to be present at all public proceedings related to

the offense, subject to the approval of the judge in the case.”40 Appellant correctly notes that

Article 56.02(b) does not trump the sequestration rule, but Rule 614 does not trump Article

36.03, which explicitly permits close family members of a deceased victim to remain in the

courtroom, even though they would otherwise be excludable under Rule 614.41

Enterprise Co. v. Riverside Co., 464 U.S. 501, 508 (1984) (upholding the presumption of openness
of all court proceedings, including voir dire, to all members of the public, including the press).
39
Press-Enterprise Co., 464 U.S. at 508.
40
TEX . CODE CRIM . PROC. art. 56.02(b).
41
Appellant cites and relies upon Jimenez v. State, 787 S.W.2d 516, 522-23 (Tex. App.–El
Paso 1990, no pet.) (stating that article 56.02(b) did not authorize trial judge to exempt crime victim
from “The Rule” in pretrial motion to suppress when it was her identification of the defendant that
 Batiste Page 23

Mr. Holiday’s mother’s right to remain in the courtroom during the guilt phase was

not inviolate, but appellant was required to show, with an offer of proof, that her testimony

would be materially affected by the testimony of other witnesses or that her exclusion was

necessary to maintain courtroom decorum.42 Appellant did not establish either of these. The

mere fact that, at a couple of points during gruesome testimony, one or more of Mr.

Holiday’s family members were crying or sniffling does not show that the trial judge abused

his discretion or that appellant was denied a fair trial. Even a disruptive outburst by a witness

or other bystander “which interferes with the normal proceedings of a trial will not result in

reversible error unless the defendant shows a reasonable probability that the conduct

was the subject of the hearing; her description of defendant changed between the time of the pretrial
hearing and the trial itself and made her in-court identification of defendant unreliable). However,
that case involved the victim’s hotly contested eyewitness identification of the defendant during the
guilt phase, not brief victim-impact testimony during the punishment phase. Furthermore, Jimenez
was decided before the enactment of Article 36.03, which explicitly trumps Rule 614.
42
TEX . CODE CRIM . PROC. art. 36.03(a) & (b). Arguably Mr. Holiday’s grandmother was
excludable under Rule 614 because, under the literal terms of art. 36.03(a), a victim’s grandmother
does not meet the definition of “close relative of a deceased victim.” See id. art. 36.03(d)(1) (using
the definition for “close relative of deceased victim” found in art. 56.01, and that definition does not
include grandparents of the deceased). Even if Article 36.03 did not apply to Mr. Holiday’s
grandmother and Rule 614 did apply, thereby making her excludable, there is nothing in this record
to show that the trial judge abused his discretion in allowing her to testify despite a violation of The
Rule. See Bell v. State, 938 S.W.2d 35, 50 (Tex. Crim. App. 1996) (trial judge’s decision to allow
testimony from a witness who has violated the rule is a discretionary matter. “It has been held that
the ruling of the trial court on an objection to a witness testifying when he has remained in the
courtroom after having been placed under the ‘rule’ may not be relied upon as a ground for reversal
unless an abuse of discretion is shown; and until the contrary has been shown, it will be presumed
on appeal that such discretion was properly exercised.”) (quoting Valdez v. State, 776 S.W.2d 162,
170 (Tex. Crim. App.)). In this case, appellant has failed to show that Mrs. Holiday’s testimony
could have been affected by the testimony of witnesses during the guilt phase. Her testimony
concerned only the loss of her grandson and how her family had been devastated by that loss.
 Batiste Page 24

interfered with the jury’s verdict.” 43

Nothing in this record suggests that the jury could not (1) ignore those occasions when

Mr. Holiday’s family members showed some emotion or (2) fairly examine the evidence in

arriving at a verdict.44 We overrule appellant’s points of error nine through eleven.

Appellant’s Proposed Jury Instructions

In point of error twelve, appellant complains that the trial judge erroneously rejected

his proposed jury instructions regarding victim-impact testimony. Appellant has cited no

legal authority that would require (or even permit) the submission of such jury instructions

under Texas law. We conclude that the trial judge did not err by declining to include

appellant’s requested instruction in the punishment jury charge.

During the jury-charge conference, appellant submitted a lengthy, three-paragraph

proposed jury instruction concerning victim-impact evidence. In essence, it informed the

jury that evidence had been introduced “for the purpose of showing the specific harm caused

by” appellant’s crime, but that the jury should not be diverted from its “proper role of

deciding whether the Defendant should live or die.”45 The proposed instructions noted that

43
Gamboa v. State, 296 S.W.3d 574, 580 (Tex. Crim. App. 2009) (internal quotations
omitted) (shouted outburst by one of the victim’s family members during defendant’s testimony that
“You did this for $200?” did not require mistrial or reversal); see also Coble v. State, 330 S.W.3d
253, 292 (Tex. Crim. App. 2010) (one witness’s outburst during her testimony that “I hate you for
making me go through this again and my kids. You’re mean,” and another witness’s outburst
“You’re an evil piece of shit” did not require mistrial or reversal).
44
Gamboa, 296 S.W.3d at 580.
45
The jury does not decide whether the defendant should “live or die”; it answers the special
issues, and the trial judge then assesses punishment in accordance with those answers.
 Batiste Page 25

victim-impact evidence “is simply another method of informing you about the nature and

circumstances of the crime,” but that “[t]he sentence you impose must be in accordance with

the law as I instruct you and not based on sympathy, prejudice, emotion or public opinion and

not based solely upon victim impact.”

We have previously rejected claims requesting jury instructions on victim-impact

evidence,46 and appellant does not persuade us that our prior decisions should be overruled.

The trial judge submitted a charge consistent with the statutory requirements set out in the

Code of Criminal Procedure.47 We overrule appellant’s twelfth point of error.

“Execution-Impact” Evidence

In his thirteenth through fifteenth points of error, appellant complains that the trial

judge erred in not permitting him to introduce “execution-impact” evidence. As an offer of

proof, the defense submitted a letter written by appellant’s mother stating that her son did not

deserve the death penalty and that “Killing Teddrick would be killing me.” Appellant argues

that the exclusion of testimony based on this letter violated his Eighth Amendment rights,

46
See Mays v. State, 318 S.W.3d 368, 391 (Tex. Crim. App. 2010); Saldano v. State, 232
S.W.3d 77, 107 (Tex. Crim. App. 2007). In Saldano, we explained:

We believe it sufficient to dispose of these points by recognizing that the trial court
submitted a charge consistent with applicable state statutes, which have withstood
numerous constitutional challenges. These state statutory provisions meet federal
constitutional requirements by narrowing the class of “death-eligible defendants”
and they arguably provide more than required by the federal constitution by providing
a jury a vehicle to “fully” consider mitigating evidence “in every conceivable manner
in which the evidence might be relevant.
Id.
47
See TEX . CODE CRIM . PROC. art. 37.071, § 2(b)-(f).
 Batiste Page 26

denied him due process, and should have been admitted under Article 37.071.

Appellant’s mother testified at trial, but appellant did not ask her questions to elicit

all of the information contained in her letter.48 The State notes that appellant did not make

his request until after both sides had rested, the witnesses had been excused, and it was time

for closing arguments. This was an untimely request, and appellant did not ask to reopen the

testimony to recall appellant’s mother to the witness stand.49 Appellant did not preserve this

48
Appellant’s mother, Rowena Scott, cried while she testified about her son’s birth and
upbringing. She stated that appellant lived with his grandmother, who took care of him until he was
about nine years old. Appellant had been born when Rowena was just sixteen, and she went back
to school. She explained that appellant was a happy, healthy child who did not have any mental
problems or learning disabilities. She sponsored the admission of numerous photographs of
appellant taken at various ages in “a happy time in life.” She explained how appellant became a
stepfather when he was sixteen, having just returned from TYC. She did not know that appellant
was continuing to commit crimes when he was sixteen and seventeen, nor did she suspect that he
was in a gang. She was “hurt, destroyed,” when she heard appellant had been arrested for this
capital murder. It was not something she would have predicted. She said that appellant was the kind
of person who can follow rules and that he could be a positive influence on people’s lives even if
he was in prison. The State did not cross-examine appellant’s mother.
49
Article 36.02 governs a party’s right to reopen the testimony. It provides that the trial
court “shall allow testimony to be introduced at any time before the argument of a cause is
concluded, if it appears that it is necessary to a due administration of justice.” TEX .CODE CRIM .
PROC. art. 36.02. “Due administration of justice” means a judge should reopen the case if the
proffered, admissible evidence would materially change the case in the proponent’s favor. Peek v.
State, 106 S.W.3d 72, 79 (Tex. Crim. App. 2003). To establish a material change, the proponent
must show that the evidence is “more than just relevant–it must actually make a difference in the
case.” Id.
A trial judge commits error when he denies a motion to reopen to allow a witness to testify
when the following criteria are satisfied:
(1) the witness is present and ready to testify;
(2) the motion to reopen is made before final arguments and before the charge is read to
the jury;
(3) the movant states with specificity what testimony the witness is expected to give and
the importance the testimony carries; and
(4) it does not appear that the motion’s purpose is to frustrate the due administration of
justice.
 Batiste Page 27

issue for review.50

Furthermore, we have previously rejected the claim that a capital defendant should be

entitled to present “execution-impact” testimony from his friends and family. Most recently,

in Gallo v. State,51 we explained that such evidence “is objectionable because it does not

pertain to appellant’s background, character, or record, or the circumstances of the offense.” 52

As we have stated, this type of evidence is simply an emotional plea for sympathy, rather

than a rational response to objective facts.53 In Fuller v. State, our seminal case on this issue,

Scott v. State, 597 S.W.2d 755, 758 (Tex. Crim. App. [Panel Op.] 1979). In this case, appellant did
not request to reopen the testimony; he did not show that appellant’s mother was present and ready
to testify; although he did tender the letter that he wished to offer, he did not explain how this
evidence was either admissible or important in answering the special issues. Therefore, the trial
judge did not abuse his discretion in overruling appellant’s untimely request to present “execution-
impact” evidence, even if a constitutional or statutory right to present such testimony existed.
50
TEX . R. APP . P. 33.1
51
239 S.W.3d 757 (Tex. Crim. App. 2007).
52
Id. at 779; see also Jackson v. State, 33 S.W.3d 828, 834 (Tex. Crim. App. 2000); Ross v.
State, 954 So.2d 968, 1012-13 (Miss. 2007) (“[T]estimony regarding the impact a death sentence
may have on the defendant’s family is not ‘relevant mitigating evidence,’ because it does not address
the defendant’s character, record, or the circumstances of the offense.”); People v. Viera, 106 P.3d
990, 1009 (Cal. 2005) (“A statement about how a defendant’s death would make the family member
suffer is not relevant to an individualized determination of defendant’s culpability and may be
properly excluded. . . . ‘The specific questions whether family members would prefer that defendant
not be executed or believe that a death sentence will stigmatize them are not, however, strictly
relevant to the defendant’s character, record or individual personality.’”); People v. Armstrong, 700
N.E.2d 960, 971 (Ill. 1998) (trial judge properly excluded testimony by capital-murder defendant’s
sister regarding the effect the death penalty on her family; such evidence “was wholly tangential to
the defendant’s character and the nature of his offense”); State v. Stenson, 940 P.2d 1239, 1279-82
(Wash. 1997) (trial judge did not err in excluding “execution-impact” testimony).
53
See McFarland v. State, 928 S.W.2d 482, 522-23 (Tex. Crim. App. 1996) (“As appellant
acknowledges, this Court has held that an emotional plea from a relative that a capital defendant’s
life be spared is objectionable evidence, because it ‘does not pertain to appellant’s background,
 Batiste Page 28

the capital-murder defendant wanted to offer testimony from his relatives “concerning their

love for him and their desire to see him live.”54 But we rejected his claim because the

evidence was irrelevant to the punishment issues.

In this case, as in Fuller, appellant does not contend that he was prevented from

offering any evidence concerning his background, character, record, or the circumstances of

his crimes. His complaint is simply that he was not permitted to ask his friends and family

if they wanted to see him live. First, the United States Supreme Court has never said that

“execution-impact” testimony is constitutionally mitigating. Indeed, it has held that juries

in a death-penalty case may be instructed that they “must not be swayed by mere sentiment,

conjecture, sympathy, passion, prejudice, public opinion or public feeling.” 55 Second, the

“execution-impact” testimony does not address a relevant issue under Article 37.071. Third,

the jury was capable of inferring that appellant’s mother, crying as she testified about her

son’s upbringing and his happy, healthy, church-going childhood, did not want her son to be

character, or record, or the circumstances of the offense[.]’ This signals as a matter of state law that
any purely emotional appeal has no relevance to the jury’s assessment of ‘the circumstances of the
offense, the defendant’s character and background, and the personal moral culpability of the
defendant[.]’”) (citations omitted).
54
Fuller v. State, 827 S.W.2d 919, 935 (Tex. Crim. App. 1992).
55
California v. Brown, 479 U.S. 538, 539, 543 (1987) (“An instruction prohibiting juries
from basing their sentencing decisions on factors not presented at the trial, and irrelevant to the
issues at the trial, does not violate the United States Constitution. It serves the useful purpose of
confining the jury’s imposition of the death sentence by cautioning it against reliance on extraneous
emotional factors, which, we think, would be far more likely to turn the jury against a capital
defendant than for him. And to the extent that the instruction helps to limit the jury’s consideration
to matters introduced in evidence before it, it fosters the Eighth Amendment’s ‘need for reliability
in the determination that death is the appropriate punishment in a specific case.’”).
 Batiste Page 29

executed.

In sum, just as the victim’s family members may not testify about their desire for

appellant to be sentenced to death, members of appellant’s family may not testify about their

desire for the jury to spare his life. The special issues must be answered rationally, not on

the basis of mere sympathy, passion or prejudice. Appellant’s thirteenth, fourteenth, and

fifteenth points of error are overruled.

The State’s Challenge for Cause

In his sixteenth point of error, appellant claims that the trial judge erred when he

granted a State’s challenge for cause of venire member Alexandria Dunwood in violation of

his Sixth Amendment right to a fair trial. Appellant claims that Ms. Dunwood was not

subject to a challenge for cause because “[i]t is unclear if the Juror was an opponent or a

proponent of the death penalty.”56 We disagree. The trial judge did not abuse his discretion

in finding that Ms. Dunwood was unable to return a verdict that would require a death

sentence.

In this case, all members of the venire filled out a questionnaire asking, among other

things, for their thoughts about capital punishment. Those venire members whose answers

disqualified them from service were then excused. Next, the remaining venire members were

questioned in small groups, and the trial judge asked if they could follow and apply certain

legal principles. Again, those potential jurors who could not follow the law were excused.

56
Appellant’s Brief at 68.
 Batiste Page 30

During this winnowing procedure, many venire members were also excused by agreement.

After group questioning, the remaining venire members were questioned individually about

their feelings concerning capital punishment.

Ms. Dunwood was Juror Number 90. The prosecutor questioned Ms. Dunwood

about her questionnaire answers and her ability to return a verdict that would result in the

imposition of the death penalty:

Q: . . . The other question was: Do you have any moral, religious, or personal beliefs that
would prevent you from returning a verdict which would result in the execution of
another human being? You didn’t answer that question. Was there a reason why you
didn’t answer it?

A: Well, I just–really, I was like, I don’t really know what my answer would be to that
question. That’s why I didn’t answer it. There were a lot of questions that I didn’t
answer because I really didn’t know what I should answer, you know.
...

Q: So, that’s why that question is in there, along with some of the others, is to ask you
to think about whether this is something you could do. And so, since you came in and
filled out your questionnaires on Friday, maybe you’ve had a little time. Have you
thought about whether this is something you could do?

A: I thought and I was like no, it’s probably not something I could do.

Q: You feel like because of your beliefs or whatever reason that you could not sit on a
jury where the [State] is seeking the death penalty. Is that what you’re saying?

A: Yes.

Q: Do you feel like it would do violence to your conscience to have to answer questions
in a way that could cause the defendant to be executed, to be given the death penalty?

A: Yes.

Q: And let me just–and I’m going to ask you this question a certain way. And it may be
 Batiste Page 31

a little wordy, but what I’m hearing you say is you have conscientious scruples in
regard to the infliction of the punishment of death for a crime. Is that–

A: Yes.

Q: You do feel that way?

A: Yes.

The prosecutor then moved to strike Ms. Dunwood for cause.57 The trial judge then

gave the defense an opportunity to question her:

Q: . . . Are you saying to us that it wouldn’t matter how bad the case was, it wouldn’t
matter what the facts were, it wouldn’t matter how justified you might feel in reaching
the verdict that might result in death, but you couldn’t do it no matter what. Is that
what you’re saying to us?

A: Just because of the death penalty, that’s the only reason why.

...

Q: So, it wouldn’t matter how bad the case was, you couldn’t do it?

A: I could do it. It’s just the outcome. The outcome would be. It might be different than
what I might go for.

Q: Let me see if I hear what you’re saying. Are you saying that you might could find
someone guilty of capital murder, but you would never be able to give him the death
sentence?

A: Yes.

Q: No matter what the answers to the questions ought to be, you wouldn’t be able to

57
The prosecutor’s exact words were, “State has a motion, Your Honor.” Appellant argues
that “at no point [does] the State articulate a reason for striking this juror,” and claims that it was
unclear as to what the State’s motion actually was. However, taken in context, it is clear that the
“motion” was a challenge for cause. The prosecutor had used the same language without confusion
throughout voir dire when making challenges for cause.
 Batiste Page 32

answer them because you could not ever participate in giving someone the death
penalty?

A: True.

Q: No matter what they did?

A: Uh-huh.

Q: No matter how bad it was?

A: It depends on what actually happened during the case to me.

At this point, the prosecution objected to any “further questioning by the defense

counsel,” arguing that Ms. Dunwood had “made herself clear.” The court sustained that

objection and granted the State’s challenge for cause. Defense counsel noted for the record

that the juror’s last response was, “It would depend on what the evidence was.” In response,

the State requested the trial judge make a “finding on the record as to what her demeanor was

and the way she answered the questions,”58 to which the trial judge stated: “She obviously,

obviously said that she could not do it. And I believe any further questioning would be

fruitless.”

Our system of justice does not “entrust the determination of whether a man should live

or die to a tribunal organized to return a verdict of death.” 59 Thus, to be an eligible juror in

a capital case, one must be able to envision some factual scenario in which the defendant is

58
Appellant complains, “The objection, challenge, and demeanor request were confusing to
the point of being undecipherable.” Appellant’s Brief at 66 n.21. However, we understand that the
participants–prosecutor, defense attorney, and judge–were clarifying the issue for appellate review.
59
Witherspoon v. Illinois, 391 U.S. 510, 521 (1968).
 Batiste Page 33

guilty of capital murder, but not deserving of the death penalty.60 Conversely, a capital juror

must also be able to consider a death sentence to be appropriate in some circumstances.61

While those with “general objections to the death penalty or expressed conscientious or

religious scruples,” may not be excluded from a jury for cause, a juror who “in no case would

vote for capital punishment, regardless of his or her instructions, is not an impartial juror and

must be removed for cause.”62 This Supreme Court rule ensures that neither the State nor the

defendant play with a “stacked . . . deck.” 63

We have noted that “[t]he record need not establish a venire member’s bias with

unmistakable clarity” to support a challenge for cause.64 If a juror vacillates between

positions, reviewing courts must defer to the trial judge’s determination of whether a

challenge for cause is appropriate.65

Appellant asserts that Ms. Dunwood’s final answer—that her verdict in a death

penalty trial would “depend on what happened in the case”—showed that once she “was

60
Morgan v. Illinois, 504 U.S. 719, 729 (1992).
61
Witherspoon, 391 U.S. at 522 n.21.
62
See Morgan, 504 U.S. at 728 (internal quotation marks omitted).
63
See Witherspoon, 391 U.S. at 523.
64
Barefield v. State, 784 S.W.2d 38, 44 (Tex. Crim. App. 1989).
65
Id. (“‘[T]here will be situations where the trial judge is left with the definite impression
that a prospective juror would be unable to faithfully and impartially apply the law. . . . [T]his is why
deference must be paid to the trial judge who sees and hears the juror.’”) (quoting Wainwright, 469
U.S. at 425-26).
 Batiste Page 34

educated about the difference between ‘would’ and ‘could,’” she was an acceptable juror.66

We disagree. Ms. Dunwood’s final statement was the only response indicating that

she might be open to considering a death sentence. Viewed in context, that one statement

does not convince us that she was an impartial juror. More importantly, it did not convince

the trial judge, to whom we owe great deference.67 First, Ms. Dunwood had not answered any

capital-punishment questions on the questionnaire. When asked why, she explained that

initially she was unsure, but, after thinking about it, voting to impose a death sentence was

“probably not something [she] could do.” Second, Ms. Dunwood agreed that (1) she “could

not sit on a jury where the [State] is seeking the death penalty,” (2) “it would do violence to

[her] conscience to have to answer questions in a way that could cause the defendant to be

executed,” and (3) she had “conscientious scruples in regard to the infliction of the

punishment of death[.]” This is not the mind set of an impartial juror willing to consider both

a life and a death sentence.

During defense questioning, Ms. Dunwood continued to answer in the same vein,

noting that she “could find someone guilty of capital murder, but [she] would never be able

to give him the death sentence.” She agreed that “no matter what the answers to the questions

ought to be, [she] wouldn’t be able to answer them because [she] could not ever participate

in giving somebody the death penalty.” It was only after all of this questioning, that Ms.

66
Appellant’s Brief at 64.
67
See Barefield, 784 S.W.2d at 44.
 Batiste Page 35

Dunwood said that her decision to impose capital punishment “depends on what actually

happened during the case.”

At best, Ms. Dunwood was a “vacillating juror,” but even that is dubious. Only after

unequivocally saying that she could not be impartial eight different times, did Ms. Dunwood

say that her decision would “depend on the facts of the case.” This single response does not

establish her ability to follow the law; her answer may have been a concession to stop a

seemingly endless barrage of questions. The significance of her answer, taking into account

her accompanying tone and demeanor, was a factual determination for the trial judge.68

Appellant complains that the State “wanted her off of the jury for no other reason

[than] she was not wholeheartedly pro-death.”69 That may be true. But the prosecutor’s

subjective intent is irrelevant. The prosecutor asked a series of questions that Ms. Dunwood

honestly answered, and her honest answers rendered her subject to a challenge for cause.

Therefore, we overrule appellant’s sixteenth point of error.

The Admissibility of Appellant’s Statements

In points of error eighteen and nineteen, appellant claims that the statements he made

to Sergeant Gore should have been suppressed because they were the product of custodial

interrogation and were given without Miranda70 warnings. In his seventeenth point of error,

68
Barefield, 784 S.W.2d at 44.
69
Appellant’s Brief at 67.
70
Miranda v. Arizona, 384 U.S. 436 (1966). Appellant also relies on the Texas confession
statute, Article 38.22, but the warnings set out in that statute, like Miranda, apply only to custodial
 Batiste Page 36

appellant contends that we should abate this case to the trial court for written findings of fact

and conclusions of law concerning the voluntariness of the statements he made to Sgt. Gore.

And, in points of error twenty through twenty-two, appellant argues that his three recorded

station-house confessions were obtained in violation of the deliberate “question first, warn

later” strategy denounced in Missouri v. Seibert.71 We disagree. Because Sgt. Gore’s

roadside questioning was simply an inquiry into whether appellant had been shot, that

conversation did not constitute custodial interrogation for purposes of Miranda. And

because appellant was given (and voluntarily waived) his Miranda and statutory warnings

before he was questioned at the police station, all of his recorded statements were properly

admitted at trial.

Sgt. Gore testified that, after the chase had ended, he approached the white Cadillac

from which appellant had been removed. As he inspected the interior of the car, Sgt. Gore

noticed that there was “blood everywhere[,]” so he informed his superior, who then told him

to “Go check on [appellant], and make sure he’s not injured. That way if he is, we can get

him medical attention.” Sgt. Gore then approached appellant–who was sitting in a patrol car,

under arrest–and asked “if he had been shot.” The following exchange then took place:

Appellant: No, I’m fine.

Sgt. Gore: Well, you’ve got blood all over you.

interrogation statements.
71
542 U.S. 600 (2004).
 Batiste Page 37

Appellant: That’s not mine. That’s the driver’s.

Sgt. Gore: Well, you were driving.

Appellant: No. It belongs to the guy I took the car from.

It is undisputed that appellant was in custody; the legal question is whether Sgt. Gore

“interrogated” appellant for the purposes of Miranda. We conclude that he did not.

Under Miranda, the government may not use any statements “stemming from

custodial interrogation of the defendant unless it demonstrates the use of procedural

safeguards effective to secure the privilege against self-incrimination.”72 These protections

apply whenever a person in custody is subjected to either express questioning or its

“functional equivalent.” The word “interrogation” under Miranda “refers not only to express

questioning, but also to any words or actions on the part of the police . . . that the police

should know are reasonably likely to elicit an incriminating response from the suspect.” 73

The Miranda warnings protect suspects from the “inherently compelling pressures”

associated with the police-interrogation environment.74

However, not all questions that an officer might ask a suspect who is in custody will

trigger the Miranda requirements. For example, “[r]outine booking questions . . . do not, by

their very nature, involve the psychological intimidation that Miranda is designed to

72
384 U.S. at 444.
73
Rhode Island v. Innis, 446 U.S. 291, 301 (1980).
74
See Miranda v. Arizona, 384 U.S. 436, 467 (1966).
 Batiste Page 38

prevent.”75 Similarly, “questions mandated by public safety” are “outside the constitutional

definition of ‘interrogation.’”76 We use an objective test to determine whether the

questioning in a specific situation constitutes interrogation.77 As the Supreme Court

explained in Innis, because “the police surely cannot be held accountable for the

unforeseeable results of their words or actions, the definition of interrogation can extend only

to words or actions on the part of police officers that they should have known were

reasonably likely to elicit an incriminating response.”78 Brief, neutral questions that are not

intended to elicit a confession or admission of guilt, asked in the wake of an accident or other

similar event that would normally evoke an inquiry, are not considered “interrogation” for

purposes of Miranda.79

We review a trial judge’s denial of a Miranda-violation claim under a bifurcated

75
Alford v. State, 358 S.W.3d 647, 654 (Tex. Crim. App. 2012) (internal quotation marks
omitted).
76
Jones v. State, 795 S.W.2d 171, 174 n.3 (Tex. Crim. App. 1990).
77
See United States v. Abdulla, 294 F.3d 830, 834 (7th Cir. 2002) (test of whether a
defendant is being “interrogated” for purposes of Miranda is whether a reasonable, objective
observer would have believed that the question claimed by the defendant to have been unlawful
interrogation was in fact reasonably likely to elicit an incriminating response).
78
446 U.S. at 301-02.
79
See State v. Simoneau, 402 A.2d 870, 873-74 (Me. 1979) (“[Q]uestions asked in the wake
of an event or occurrence which would naturally tend to evoke such an inquiry do not constitute
interrogation. These questions, unlike the sort of interrogation which prompted implementation of
the Miranda safeguards, are characterized by brevity, neutrality and absence of an intent to elicit a
confession or admission.”); State v. Barnes, 252 A.2d 398, 401 (N.J. 1969) (“It seems clear to us that
the essence of the situation was not an officer imposing a process of interrogation upon a suspect,
but an officer reacting naturally and spontaneously to the scene before him”; Miranda did not apply).
 Batiste Page 39

standard.80 We afford almost total deference to the trial judge’s factual findings and his

application of law to fact rulings that turn on credibility and demeanor.81 When there is no

factual dispute as to whether Miranda warnings were given, what questions the officer asked,

or what answers the defendant gave, the question of whether the defendant was subjected to

“interrogation” is a mixed question of fact and law reviewed de novo because there are no

disputed issues of fact that depend upon credibility or demeanor.82

Based on this record, we cannot say that Sgt. Gore was acting under the guise of

inquiring about appellant’s medical condition, but actually hoping to elicit an incriminating

response. He repeatedly explained that his sole purpose in questioning appellant was to

“check on his medical condition.” While Sgt. Gore’s subjective intent is not dispositive in

an Innis “interrogation” analysis, it does shed some light on the situation to the extent it was

communicated.83 Furthermore, this record does not support any notion under the “should

have known” test84 that Sgt. Gore’s brief questioning about appellant’s medical condition

was likely to elicit an incriminating response. As the State notes, police officers are under

80
Alford, 358 S.W.3d at 652.
81
Id.
82
Id. at 652-53 (“The decision as to whether custodial questioning constitutes ‘interrogation’
under Miranda is a mixed question of law and fact”; if credibility and demeanor are not at issue, the
question of “whether a set of historical facts constitutes custodial interrogation under the Fifth
Amendment is subject to de novo review because that is an issue of law”).
83
See Dowthitt v. State, 931 S.W.2d 244, 254 (Tex. Crim. App. 1996).
84
See Alford, 358 S.W.3d at 653 n.9.
 Batiste Page 40

a general duty to ensure that, if a suspect is injured, he is provided proper medical attention.85

The question Sgt. Gore asked appellant was in furtherance of this duty. Once Sgt. Gore was

assured that appellant did not need immediate medical attention, he ceased questioning.

And, from a suspect’s point of view, Sgt. Gore’s question was not one “likely to elicit

an incriminating response.” Sgt. Gore’s initial question, “Have you been shot?” was simply

a yes or no question. Neither a “yes,” nor a “no” would have been incriminating.86 However,

appellant’s answer to that question was confusing and required some follow-up to ensure that

(1) appellant was not actually suffering from a serious wound or trauma but was too

confused or delusional to relay the correct information to the officer, or (2) there was not

another person—perhaps the driver—who had been in the car with him, who may have left

85
See, e.g., Sims v. State, 735 S.W.2d 913, 917-18 (Tex. App.–Dallas 1987, pet. ref’d)
(officer’s questions as to whether defendant was sick, injured, physically impaired, etc., were not
interrogation, but questions normally attendant to arrest and custody; such questions are “of
legitimate concern to the police at any time a person is arrested and taken into custody because the
police will be responsible, to some degree, for the arrested person’s care and physical well-being”);
Al Amin v. State, 597 S.E.2d 332, 348 (Ga. 2004) (post-arrest questioning by FBI agent who
approached defendant after lengthy police chase and told him that he was a medic and asked if he
was injured, was not “interrogation” for purposes of Miranda; “the question was asked for the sole
purpose of assessing whether the suspect required medical aid, and was unrelated to the police
investigation.”). Indeed, the duty to “prevent injury” is one justification for a warrantless search. See
Mincey v. Arizona, 437 U.S. 385, 392–93 (1978) (noting that “the Fourth Amendment does not bar
police officers from making warrantless entries and searches when they reasonably believe that a
person within is in need of immediate aid.”).
86
See State v. Riggs, 987 P.2d 1281, 1283-84 (Utah Ct. App. 1999) (police officer’s question
to defendant, who was in custody at hospital to which he had been taken after he sustained injuries
in automobile accident, whether he remembered the accident, did not constitute “interrogation” for
purposes of Miranda; question, which required simply a “yes” or “no” answer, was not one officer
should have known was reasonably likely to elicit an incriminating response), abrogated on other
grounds by State v. Levin, 144 P.3d 1096 (Utah 2006).
 Batiste Page 41

the scene, and was either a security threat or in need of immediate medical attention.

In sum, Sgt. Gore’s questions neither presented appellant with the “psychological

intimidation” associated with a police interrogation nor was it an underhanded way of

bypassing Miranda and eliciting an incriminating response.87 Sergeant Gore was asking

appellant if he was in need of immediate medical attention, an inquiry that was appropriate

under the circumstances and one that did not raise any concern of coerciveness or

compulsion.88 Appellant’s eighteenth and nineteenth points of error are overruled.

In his seventeenth point of error, appellant asks this Court to abate his appeal and

remand the case to the trial court for more complete factual findings and legal conclusions

surrounding appellant’s roadside statement to Sergeant Gore. That is unnecessary. Appellant

points to Section 6 of Article 38.22, specifically that “the court must enter an order stating

its conclusion as to whether or not the statement was voluntarily made, along with the

specific finding of facts upon which the conclusion was based.” However, appellant has

raised no question of the factual voluntariness of his statements to Sgt. Gore. There is no

87
See Innis, 446 U.S. at 301-02; Alford, 358 S.W.3d at 653-54.
88
See Innis, 446 U.S. at 301. Appellant relies on Clemmer v. State, 645 S.W.2d 918 (Tex.
App.—Fort Worth 1983, no pet.), for the proposition that “[a]n interrogation does not just consist
of questions.” Appellant’s Brief at 81. That may be true, but that proposition does not convert Sgt.
Gore’s questions about appellant’s possible injury into “interrogation.” Clemmer involved an
automobile accident, after which a police officer came into the defendant’s hospital room and
announced that “the girl in the other car had died.” That was the type of announcement that was
likely to elicit an incriminating statement and it did: the defendant responded, “I don’t give a f____
if anyone is dead, I am hurting.” Id. at 919. In the present case, however, none of Sgt. Gore’s
questions were likely to elicit an incriminating statement, they were intended simply to ensure that
appellant was not the person who had left all that blood in the white Cadillac.
 Batiste Page 42

dispute over the facts of who said what to whom and when. The question that appellant

raised at trial and in his appeal is whether their roadside conversation was an “interrogation”

for purposes of Miranda. That is a purely legal question that we review de novo.

At trial, appellant made two arguments to exclude his statement to Sgt. Gore. First,

he claimed that the statement was the product of a “custodial interrogation” without Miranda

warnings. Second, he argued that the statement was not relevant to the purpose for which it

was being admitted. At no point did counsel argue that the statement was involuntarily

given.

Although appellant challenged the voluntariness of several of his other statements

during a pretrial hearing, he did not challenge the voluntariness of the roadside statement.

Because there was no challenge to the voluntariness of this specific statement, there were no

factual disputes surrounding the issue of voluntariness. Therefore, the trial judge only

needed to rule on the motion; additional factual findings were (and are) unnecessary. We

overrule appellant’s seventeenth point of error.

In his final three points of error, appellant complains about the admission of his three

recorded and Mirandized “custodial interrogation” statements that he gave to three different

officers concerning three different offenses: the first statement was given to Sgt. Sidney

Miller concerning the capital murder of Horace Holiday; the second statement was given to

HPD Officer Mike Miller concerning the Black Widow tattoo-parlor capital murder; the

third statement was given to Sgt. Tonry concerning the Phat Kat Tats tattoo-parlor aggravated
 Batiste Page 43

robbery. Appellant claims that the statements are a “tainted trifecta” under Missouri v.

Seibert’s89 “question first, warn later” prohibition because of Sgt. Gore’s brief un-Mirandized

inquiry into appellant’s medical condition back at the arrest scene.

In Seibert, the Supreme Court addressed a situation in which police officers engaged

in a deliberate strategy to question an arrested suspect without Miranda warnings and then,

after she had confessed, gave her the required warnings and continued the interrogation in

an effort to re-elicit the same incriminating responses that she had already made.90 A

plurality of the Court “envision[ed] an objective inquiry from the perspective of the subject,

and applies in the case of both intentional and unintentional two-stage interrogations.” 91 In

Carter v. State,92 we expressly adopted Justice Kennedy’s concurring opinion in Seibert

because his was the crucial fifth vote and his opinion was “narrower in scope than the

plurality opinion and applies only to two-step interrogations involving deliberate police

misconduct.”93 Thus, only those interrogations in which police employ a deliberate “question

first, warn later” strategy run afoul of the Fifth Amendment.

At trial, appellant did not make any reference to Seibert, Carter, “two-step

89
542 U.S. 600 (2004).
90
See generally, id. at 604-17.
91
Id., at 621 (Kennedy, J., concurring).
92
309 S.W.3d 31 (Tex. Crim. App. 2010).
93
Id. at 38; see also Martinez v. State, 272 S.W.3d 615, 626-27 (Tex. Crim. App. 2008)
(applying the reasoning from Justice Kennedy’s concurrence in determining the admissibility of a
statement obtained through a deliberate two-step custodial interrogation).
 Batiste Page 44

questioning,” “question first, warn later,” or any other argument that might raise an issue

under Seibert. Instead he objected to the admissibility of his three confessions based on

voluntariness.94 Indeed, the trial judge’s findings of fact and conclusions of law are directed

only to the general voluntariness of his confessions. Appellant has therefore failed to

preserve any issue concerning a “question first, warn later” deliberate interrogation strategy.95

But even if appellant had preserved this issue for appeal, his claim is without merit.

As we have previously concluded, appellant’s roadside statement to Sgt. Gore was not the

product of custodial interrogation, and therefore Sgt. Gore was not required to give appellant

any Miranda warnings before appellant’s responses were admissible at trial. Because

appellant’s first statement was not the product of custodial interrogation, Seibert is

inapplicable as the “question first, warn later” situation arises only when both the unwarned

and warned statements are the product of custodial interrogation.96 Furthermore, there is no

suggestion that the three officers who obtained station house confessions ever mentioned any

statement that appellant had already made to Sgt. Gore, or that Sgt. Gore’s inquiry had been

94
Appellant does not argue, on appeal, that any of appellant’s three custodial interrogation
statements were “involuntary” under the Fifth or Sixth Amendments or under Article 38.22.
95
See Swain v. State, 181 S.W.3d 359, 365 (Tex. Crim. App. 2005).
96
See Seibert, 542 U.S. at 604 (explaining that a “midstream warning” occurs when police
begin a custodial interrogation without advising the suspect of his Miranda rights, obtain
incriminating statements, and then continue questioning after administering warnings in order to re-
elicit the incriminating statements).
 Batiste Page 45

part of a deliberate two-step interrogation.97 For the above reasons, we overrule appellant’s

twentieth through twenty-second points of error.

Finding no reversible error, we affirm appellant’s conviction and sentence.

Delivered: June 5, 2013
Do not Publish

97
See Carter, 309 S.W.3d at 40-41 (finding no “deliberate ‘question first, warn later’
gamesmanship” when the pre-warning officer’s questioning was brief, uncoercive, and
conversational).