AP-77,021
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 1/30/2015 12:33:47 PM
Accepted 2/3/2015 9:56:16 AM
February 3, 2015 ABEL ACOSTA
Oral Argument is Requested CLERK
No. AP-77,021
IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NAIM RASOOL MUHAMMAD,
Appellant
v.
THE STATE OF TEXAS,
Appellee
On appeal from the Criminal District Court No. 4 of Dallas County, Texas
In Cause No. F11-00698
STATE’S BRIEF
Counsel of Record:
Susan Hawk Jaclyn O. Lambert (SBN 24049262)
Criminal District Attorney Rebecca D. Ott (SBN 24074842)
Dallas County, Texas Lisa Smith (SBN 00787131)
Assistant District Attorneys
Frank Crowley Courts Building
133 N. Riverfront Blvd., LB-19
Dallas, Texas 75207-4399
(214) 653-3625
(214) 653-3643 Fax
joconnor@dallascounty.org
Attorneys for the State of Texas
TABLE OF CONTENTS
TABLE OF AUTHORITIES ......................................................................................... VII
STATEMENT REGARDING ORAL ARGUMENT ........................................................ XIII
STATEMENT OF THE CASE....................................................................................... 1
STATEMENT OF FACTS ............................................................................................ 1
A. EVIDENCE AT GUILT-INNOCENCE ............................................................................. 1
B. THE STATE’S PUNISHMENT EVIDENCE ..................................................................... 11
C. APPELLANT’S PUNISHMENT EVIDENCE .................................................................... 26
B. THE STATE’S REBUTTAL EVIDENCE ......................................................................... 33
SUMMARY OF ARGUMENT ................................................................................... 35
ARGUMENT.......................................................................................................... 39
ISSUES 1-20: DENIAL OF DEFENSE CHALLENGES FOR CAUSE ............................................ 39
The Trial Court Properly Denied Appellant’s Challenges for Cause ................ 43
Issue 1: Milton Powell ............................................................................... 43
Issue 1: Milton Powell ............................................................................... 43
Issue 2: Georgia S. Nichols ........................................................................ 48
Issue 3: Dee Jay Earley .............................................................................. 53
Issue 4: Timothy Tinsley ............................................................................ 57
Issue 5: Robin Linn .................................................................................... 61
Issue 6: Charles Stout ................................................................................ 63
Issue 7: Allen Harrington ........................................................................... 64
ii
Issue 8: Anthony Morrison ........................................................................ 67
Issue 9: Enriquez Martinez ........................................................................ 70
Issue 10: Paul Zugelder ............................................................................. 72
Issue 11: David Hornstein.......................................................................... 75
Issue 12: Andrea Griffith ........................................................................... 76
Issue 13: Bradford McCutheon .................................................................. 77
Issue 14: Elvira Corpus .............................................................................. 78
Issue 15: Temple Koestner ........................................................................ 81
Issue 16: Nancy Munn ............................................................................... 85
Issue 17: Ernest Hand ................................................................................ 88
Issue 18: Elizabeth McDaniel ..................................................................... 92
Issue 19: Arleen Jimenez ........................................................................... 93
Issue 20: Dan Blanks.................................................................................. 94
ISSUES 21 AND 22: CONSTITUTIONAL RIGHT TO FAIR AND IMPARTIAL JURY ........................ 96
Appellant Was Not Deprived of a Lawfully Constituted Jury ......................... 96
ISSUES 23-26: ADMISSION OF AUTOPSY PHOTOGRAPHS ................................................ 96
Applicable Law.............................................................................................. 97
The Trial Court Did Not Abuse its Discretion by Overruling Appellant’s
Objections to State’s Exhibits 4-9 and 11-23 ................................................. 98
The Trial Court Did Not Abuse its Discretion by Overruling Appellant’s
Objections to State’s Exhibits 77 and 78 ..................................................... 102
ISSUES 27 AND 41: JURY ARGUMENT....................................................................... 104
iii
Applicable Law............................................................................................ 104
The Trial Court Did Not Err By Overruling Appellant’s Objection to the
State’s Closing Argument at Guilt-Innocence .............................................. 106
The Trial Court Did Not Err by Overruling Appellant’s Objection to the
State’s Closing Argument at Punishment .................................................... 113
ISSUE 28: ADMISSION OF APPELLANT’S STATEMENTS TO CPS WORKER ........................... 119
Applicable Law............................................................................................ 120
Womack’s Testimony Was Properly Admitted ............................................ 123
Any Error Harmless ..................................................................................... 124
ISSUE 29: ADMISSION OF STATE’S EXHIBIT 173.......................................................... 124
Applicable Law............................................................................................ 126
The Trial Court Did Not Abuse its Discretion by Admitting State’s
Exhibit 173 .................................................................................................. 127
Any Error Harmless ..................................................................................... 128
ISSUES 30-32: ADMISSION OF TESTIMONY FROM REFRESHED MEMORY .......................... 129
Applicable Law............................................................................................ 129
Officer Chris Havens .................................................................................... 130
Officer Harold Andrews............................................................................... 132
Officer Brandon Hernandez ........................................................................ 134
ISSUES 33 AND 37: TESTIMONY OF OFFICER DAVID SOLOMON ...................................... 135
The Trial Court Did Not Err, and Appellant Was Not Harmed, by the
Admission of Officer Solomon’s Testimony ................................................. 135
ISSUE 34: TESTIMONY OF WARDEN MELODYE NELSON ................................................ 138
iv
The Trial Court Did Not Err, and Appellant Was Not Harmed, by the
Admission of Warden’s Nelson’s Testimony ................................................ 138
ISSUE 35: DENIAL OF HEARING ON EXTRANEOUS OFFENSES AND BAD ACTS ...................... 141
Applicable Law............................................................................................ 143
Applicability of Mitchell v. State.................................................................. 144
Appellant Has Not Shown an Abuse of Discretion or Harm ......................... 145
ISSUE 36: DENIAL OF MOTION FOR MISTRIAL ............................................................ 148
Applicable Law............................................................................................ 150
The Trial Court Did Not Abuse its Discretion by Denying Appellant’s
Motion for Mistrial ..................................................................................... 150
ISSUES 38 AND 39: CROSS-EXAMINATION OF APPELLANT’S EXPERTS ............................... 151
Applicable Law............................................................................................ 152
Dr. Kellie Gray-Smith ................................................................................... 152
Dr. Gilbert Martinez .................................................................................... 158
Error, If Any, Was Harmless ........................................................................ 161
ISSUE 40: TRIAL COURT’S STATEMENT REGARDING SEQUESTRATION ............................... 162
Applicable Law............................................................................................ 165
The Trial Court’s Statement Was Not an Improper Comment on the
Weight of the Evidence ............................................................................... 166
The Trial Court’s Comment Was Not Calculated to Benefit the State or
Prejudice Appellant ..................................................................................... 169
ISSUE 42: LEGAL SUFFICIENCY OF FUTURE DANGEROUSNESS SPECIAL ISSUE....................... 170
Applicable Law............................................................................................ 170
v
The Evidence is Legally Sufficient to Support the Jury’s Finding of Future
Dangerousness ........................................................................................... 172
ISSUES 43-54: FEDERAL CONSTITUTIONAL ISSUES ....................................................... 179
PRAYER .............................................................................................................. 183
CERTIFICATE OF COMPLIANCE............................................................................ 184
CERTIFICATE OF SERVICE .................................................................................... 184
vi
TABLE OF AUTHORITIES
Cases
Adanandus v. State,
866 S.W.2d 210 (Tex. Crim. App. 1993) .......................................................... 143
Arzaga v. State,
86 S.W.3d 767 (Tex. App.—El Paso 2002, no pet.) .......................................... 146
Becknell v. State,
720 S.W.2d 526 (Tex. Crim. App. 1986) ................................................... 166, 169
Berry v. State,
233 S.W.3d 847 (Tex. Crim. App. 2007) ................................................... 121, 123
Brown v. State,
270 S.W.3d 564 (Tex. Crim. App. 2008) ........................... 111, 112, 113, 118, 119
Broxton v. State,
909 S.W.2d 912 (Tex. Crim. App. 1995) .......................................................... 154
Campbell v. State,
610 S.W.2d 754 (Tex. Crim. App. [Panel Op.] 1980) ........................................ 105
Cantu v. State,
939 S.W.2d 627 (Tex. Crim. App. 1997) .......................................................... 152
Carroll v. State,
916 S.W.2d 494 (Tex. Crim. App. 1996) .......................................................... 152
Carter v. State,
614 S.W.2d 821 (Tex. Crim. App. [Panel Op.] 1981) ........................................ 118
Chambers v. State,
866 S.W.2d 9 (Tex. Crim. App. 1993) .............................................................. 152
Clark v. State,
878 S.W.2d 224 (Tex. App.—Dallas 1994, no pet.) ......................................... 166
vii
Coble v. State,
871 S.W.2d 192 (Tex. Crim. App. 1993) (en banc) .......................................... 105
Colburn v. State,
966 S.W.2d 511 (Tex. Crim. App. 1998) ............................................................ 41
Druery v. State,
225 S.W.3d 491 (Tex. Crim. App. 2007) .......................................................... 173
Escamilla v. State,
143 S.W.3d 814 (Tex. Crim. App. 2004) .......................................................... 182
Estrada v. State,
313 S.W.3d 274 (Tex. Crim. App. 2010) ................................................... 108, 171
Feldman v. State,
71 S.W.3d 738 (Tex. Crim. App. 2002) ......................................................... 40, 41
Flowers v. State,
220 S.W.3d 919 (Tex. Crim. App. 2007) ........................................... 126, 127, 128
Freeman v. State,
340 S.W.3d 717 (Tex. Crim. App. 2011) .......................................................... 105
Gallo v. State,
239 S.W.3d 757 (Tex. Crim. App. 2007) ............................................. 97, 101, 139
Gamboa v. State,
296 S.W.3d 574 (Tex. Crim. App. 2009) ........................................... 147, 151, 168
Gray v. State,
233 S.W.3d 295 (Tex. Crim. App. 2007) ............................................................ 96
Guidry v. State,
9 S.W.3d 133 (Tex. Crim. App. 1999) .............................................................. 165
Hawkins v. State,
135 S.W.3d 72 (Tex. Crim. App. 2004) ............................................................ 150
viii
Hoang v. State,
997 S.W.2d 678 (Tex. App.—Texarkana 1999, no pet.)............................ 166, 167
Human v. State,
749 S.W.2d 832 (Tex. Crim. App. 1988 ........................................................... 127
Jackson v. State,
992 S.W.2d 469 (Tex. Crim. App. 1999) .......................................................... 145
Keeton v. State,
724 S.W.2d 58 (Tex. Crim. App. 1987) ............................................................ 171
Kemp v. State,
846 S.W.2d 289 (Tex. Crim. App. 1992) ........................................... 143, 145, 147
Linder v. State,
828 S.W.2d 290 (Tex. App.—Houston [1st Dist.] 1992, pet. ref’d) .................. 111
Long v. State,
823 S.W.2d 259 (Tex. Crim. App. 1991) .......................................................... 101
Mann v. State,
13 S.W.3d 89, 94 (Tex. App.—Austin 2000), aff'd, 58 S.W.3d 132, (Tex. Crim.
App. 2001) ...................................................................................................... 146
McCoy v. State,
877 S.W.2d 844 (Tex. App.—Eastland 1994, no pet.) .............................. 129, 135
McFarland v. State,
845 S.W.2d 824 (Tex. Crim. App. 1992) .......................................................... 160
Miranda v. Arizona,
384 U.S. 436 (1966) ........................................................................................ 121
Mitchell v. State,
931 S.W.2d 950 (Tex. Crim. App. 1996) .......................................................... 144
Mosley v. State,
983 S.W.2d 249 (Tex. Crim. App. 1998) .......................................................... 150
ix
Narvaiz v. State,
840 S.W.2d 415 (Tex. Crim. App. 1992) .......................................................... 160
Nenno v. State,
970 S.W.2d 549 (Tex. Crim. App. 1998) .......................................................... 118
Palermo v. State,
992 S.W.2d 691 (Tex. App.—Houston [1st Dist.] 1999, no pet.) ..................... 110
Paredes v. State,
129 S.W.3d 530 (Tex. Crim. App. 2004) ............................................................ 97
Powell v. State,
898 S.W.2d 821 (Tex. Crim. App. 1994) ................................................... 143, 147
Prystash v. State,
3 S.W.3d 522 (Tex. Crim. App. 1999) .............................................................. 145
Ripkowski v. State,
61 S.W.3d 378 (Tex. Crim. App. 2001) ............................................................ 102
Sadler v. State,
977 S.W.2d 140 (Tex. Crim. App. 1998) ............................................................ 40
Saldano v. State,
232 S.W.3d 77 (Tex. Crim. App. 2007) ........................................... 41, 42, 43, 182
Simon v. State,
203 S.W.3d 581 (Tex. App.—Houston [14th Dist.] 2006, no pet.) ............ 166, 169
Solomon v. State,
49 S.W.3d 356 (Tex. Crim. App. 2001) ............................................................ 162
Spence v. State,
795 S.W.2d 743 (Tex. Crim. App. 1990) .......................................................... 143
Standefer v. State,
59 S.W.3d 177 (Tex. Crim. App. 2001) .....48, 53, 56, 58, 65, 69, 71, 75, 76, 80, 91
x
Threadgill v. State,
146 S.W.3d 654 (Tex. Crim. App. 2004) ........ 40, 41, 45, 47, 59, 67, 80, 83, 85, 87
Torres v. State,
92 S.W.3d 911 (Tex. App.—Houston *14th Dist.+ 2002, pet. ref’d) ................. 110
Turner v. State,
805 S.W.2d 423 (Tex. Crim. App. 1991) .......................................................... 154
Walters v. State,
247 S.W.3d 204 (Tex. Crim. App. 2007) .......................................................... 161
Wardrip v. State,
56 S.W.3d 588 (Tex. Crim. App. 2001) ............................................................ 171
Welch v. State,
993 S.W.2d 690 (Tex. App.—San Antonio 1999, no pet.)................................ 146
Wesbrook v. State,
29 S.W.3d 103 (Tex. Crim. App. 2000) ............................................................ 105
Wilkerson v. State,
173 S.W.3d 521 (Tex. Crim. App. 2005) ........................................... 121, 122, 123
Williams v. State,
958 S.W.2d 186 (Tex. Crim. App. 1997) ............................................... 97, 98, 137
Young v. State,
283 S.W.3d 854 (Tex. Crim. App. 2009) ........................... 104, 143, 147, 171, 172
Young v. State,
891 S.W.2d 945 (Tex. Crim. App. 1994) ................................... 130, 132, 133, 135
Statutes
Tex. Code Crim. Proc. Ann. art. 13.17 (West 2005) .............................................. 46
Tex. Code Crim. Proc. Ann. art. 35.16(a)(9) (West 2006) ................................. 40, 73
Tex. Code Crim. Proc. Ann. art. 35.16(b)(3) (West 2006) ...................................... 40
xi
Tex. Code Crim. Proc. Ann. art. 35.16(c)(2) (West 2006) ................................. 40, 46
Tex. Code Crim. Proc. Ann. art. 35.23 (West 2006) ..................................... 165, 166
Tex. Code Crim. Proc. Ann. art. 37.071, § 2(a)(1) (West Supp. 2014) ................. 143
Tex. Code Crim. Proc. Ann. art. 37.071, § 2(b)(1) (West Supp. 2014) ................. 170
Tex. Code Crim. Proc. Ann. art. 37.071, § 2(c) (West Supp. 2014) ...................... 170
Tex. Code Crim. Proc. Ann. art. 37.071, § 2(h) (West Supp. 2014) ......................... 1
Tex. Code Crim. Proc. Ann. art. 38.05 (West 1979) ............................................ 165
Rules
Tex. R. App. P. 33.1(a) .... 43, 49, 54, 65, 70, 78, 81, 89, 94, 107, 108, 131, 154, 156,
159
Tex. R. App. P. 38.1(i) ......................................................................................... 108
Tex. R. App. P. 44.2(b) ........... 111, 113, 118, 119, 124, 128, 140, 161, 162, 166, 169
Tex. R. Evid. 104 ................................................................................................. 145
Tex. R. Evid. 401 ............................................................................................ 97, 137
Tex. R. Evid. 403 ................................................................................................... 98
Tex. R. Evid. 611(b) ..................................................................................... 152, 156
Tex. R. Evid. 612 ................................................................................................. 129
Tex. R. Evid. 702 ................................................................................................. 139
Constitutional Provisions
U.S. CONST. amend. V .......................................................................................... 121
xii
STATEMENT REGARDING ORAL ARGUMENT
The State requests the opportunity to present oral argument if the Court
grants appellant’s request to argue.
xiii
TO THE HONORABLE COURT OF CRIMINAL APPEALS:
The State of Texas submits this brief in response to the brief of appellant,
Naim Rasool Muhammad.
STATEMENT OF THE CASE
This is an automatic appeal from a sentence of death. See Tex. Code Crim.
Proc. Ann. art. 37.071, § 2(h) (West Supp. 2014). A Dallas County jury found
appellant guilty of capital murder for drowning his two sons in the same criminal
transaction. (CR1: 2; CR2: 395-400, 401, 410-13; RR44: 39). In accordance with the
jury’s answers to the special issues, the trial court sentenced him to death on May
23, 2013. (CR2: 402-07, 408-09, 410-13; RR50: 100-04). Appellant presents fifty-
four allegations of reversible error.
STATEMENT OF FACTS
A. Evidence at Guilt-Innocence
Kametra Sampson dated appellant for six years and they had three children
together: Naim Muhammad, Elijah Muhammad, and Jeremiah Muhammad.
(RR43: 76-77). Kametra ended her relationship with appellant in December of
2010. (RR43: 77).
1
In August of 2011, Kametra and her sons were living with Kametra’s
mother, Priscilla Sampson, on Terrell Street in Dallas. (RR43: 31-32, 59, 79-80).
Although Kametra and appellant were broken up, appellant showed up at
Priscilla’s annual back-to-school barbecue on August 20, 2011. (RR43: 33-37, 60,
81). Kametra arrived late to the barbecue with the boys and her boyfriend, Eric
Smith. (RR43: 34, 36-37, 87). Appellant confronted Kametra, telling her he did not
want another man raising his sons. (RR43: 38-39, 90-91). Kametra sent the boys
inside the house and her argument with appellant escalated. (RR43: 39-40, 91).
Kametra’s grandfather intervened and asked appellant to leave. (RR43: 40, 61,
91). Appellant returned later that evening with his mother to pick up the boys,
but Kametra and the boys were not home. (RR43: 41, 92).
Appellant returned to Priscilla’s house around 6:00 a.m. on the morning of
August 22, 2011. (RR43: 42, 93). It was the first day of kindergarten for the eldest
son, Naim. (RR43: 42, 62). Appellant asked to see his sons, but Priscilla would not
let him in. (RR43: 43, 93). Kametra came to the door and told appellant he was
not wanted there and needed to leave. (RR43: 22, 93-94). Priscilla’s neighbor,
Phyllis Lewis, was outside when appellant arrived and overheard them exchange
2
words at the front door. (RR43: 22). About thirty minutes later, Phyllis saw
appellant drive by the house on Terrell Street. (RR43: 15-16, 20-21).
Priscilla left the house with her youngest daughter, Jamie, to catch the bus
and Kametra walked down Terrell Street toward Frazier Elementary with Naim
and Elijah. (RR43: 44-45, 79, 95, 125). Kametra’s youngest son, Jeremiah, stayed
home with her brother, Brandon Turner. (RR43: 45, 64). As Kametra, Naim, and
Elijah reached the end of Terrell Street and crossed over Dolphin Street, appellant
swerved in front of them and jumped out of the vehicle he was driving. (RR43: 96-
97, 123-24). He demanded that they get in the car with him or he would hit
Kametra with a large rock he picked up off the ground. (RR43: 97-98, 124-25).
Kametra and the boys complied. (RR43: 98). Appellant continued driving in the
direction of the school, but when they reached the front of the school, appellant
turned the opposite direction and told them that Naim wasn’t going to school
today. (RR43: 100).
Kametra began crying and pleading with appellant to take Naim to school.
(RR43: 100-01). Appellant drove erratically and alternated between telling
Kametra they needed to get back together and yelling, hitting her, and
threatening to kill her and the boys. (RR43: 102-03, 106, 112). After driving
3
around for over an hour, they pulled up behind a constable near the intersection
of Camp Wisdom and R. L. Thornton Freeway. (RR43: 104, 126). Kametra jumped
out of the vehicle in the hopes of getting some help from the constable. (RR43:
105-08). Appellant grabbed her, but she was able to pull away and escape. (RR43:
109, 129). Kametra banged on the passenger window of the constable’s vehicle
and begged for help. (RR43: 110). As the constable directed her to the Shell gas
station at the intersection, appellant swerved around the car in front of him,
jumped the curb, and sped through the red light. (RR43: 110-11, 127).
The constable pulled into the Shell gas station and called the police for
Kametra. (RR43: 112-13). Appellant’s sisters, Aqueelah Green and Sekinah
Muhammad, were called and also came to the Shell gas station. (RR43: 114, 144,
146). Kametra went with Aqueelah to her brother’s house nearby on Songwood
Street in the hopes of finding appellant, but he was not there and Aqueelah drove
Kametra back to the Shell station. (RR43: 115, 117, 147-48).
Shortly after dropping off Kametra, Aqueelah received a phone from
appellant. (RR43: 150). When she asked where Naim and Elijah were, appellant
told her they were “gone with Abdullah.” (RR43: 150-51, 154). Abdullah was
Aqueelah’s and appellant’s eldest brother who was deceased. (RR43: 150-51, 159-
4
60). When Aqueelah asked what appellant meant by that, he said, “They gone.
They are dead.” (RR43: 151, 153). Appellant hung up, but he called Aqueelah back
a short time later. (RR43: 152). Aqueelah was driving during the second phone call
and arrived at her brother’s house on Songwood while she was still on the phone
with appellant. (RR43: 152-54). One of the police officers at the house asked her
to switch on her speakerphone and gave her specific questions to ask appellant.
(RR43: 154-55). At the officer’s direction, she asked appellant if he killed the kids
and he replied, “Yes.” (RR43: 155). When she asked how he killed his kids, he said
he drowned them. (RR43: 155). He told her he killed Naim first and then Elijah.
(RR43: 155). When she asked appellant where the kids were, he said he “didn’t
know” and that they were “in the creek somewhere.” (RR43: 155).
This information was still unknown to Kametra and her family. Priscilla
returned home around 10:00 a.m. and Kametra arrived shortly after her. (RR43:
45-46, 68, 117). Kametra had a bloody nose, blood on her clothes, red and
swollen eyes, and was very upset. (RR43: 46, 68, 117). She told Priscilla and
Brandon about what had happened with appellant on the way to school. (RR43:
46, 117). Brandon told them that appellant had tried to break into the house
shortly before they got home. (RR43: 45-46, 68, 117). Brandon explained that he
5
heard someone kick a window in the back of the house and break the glass.
(RR43: 52-56, 65). He went to investigate and saw appellant trying to enter the
house through the window. (RR43: 65). The window led into the room where
Jeremiah was sleeping. (RR43: 65). Brandon asked appellant what he was doing;
when appellant did not respond and just kept trying to come in, Brandon pushed
him back out of the window. (RR43: 65-66, 73). After appellant picked himself up
and was running away toward the back fence, he told Brandon: “Your nephews
are dead now.” (RR43: 66-67, 70-71). Brandon did not think anything of it
because he thought the boys were with Kametra on the way to school. (RR43: 67).
When Brandon relayed this information to Kametra, she became hysterical.
(RR43: 68-69, 117). They called 911 and Kametra left with the police officers who
responded to the call. (RR43: 47, 69, 117-18). Later that day, Priscilla was taken by
officers to Dallas Police headquarters. (RR43: 48). There, both she and Kametra
learned that Naim and Elijah were dead. (RR43: 48, 119).
Christal Fewell hung out with appellant at his brother’s house on Songwood
Street the night before the offense. (RR42: 143-46). Christal met appellant
through her cousin and they had been dating for two to three months. (RR42:
141-42). Appellant asked to borrow Christal’s car the next morning so he could
6
take his son to school. (RR42: 145). About an hour after appellant left, Christal got
out of bed, showered, and then began to worry about the whereabouts of
appellant and her car. (RR42: 150-51). A short time later she started receiving
phone calls from appellant’s family members asking: “Where is Rasool?” (RR42:
151-52). She also received a phone call from the Dallas Police Department and
provided them with a description of her car. (RR42: 154-55). When Christal was
leaving the house on Songwood, she saw her car drive down the street in front of
the house. (RR42: 154-55). She immediately called the Dallas Police back and
reported the sighting of her car. (RR42: 154-56). Appellant’s mother, Naimah
Muhammad, pulled up to the house at this time and was looking for appellant.
(RR42: 154-56). Shortly thereafter, several Dallas Police Officers also arrived at
the house. (RR42: 154-56). Christal received a phone call from appellant on her
cell phone; however, he would not tell her his whereabouts and only wanted to
talk to his mother. (RR42: 157-58).
The police officers eventually left the house on Songwood to search for
appellant, and Christal left with Naimah because she claimed to know the location
of Christal’s car. (RR42: 158-59; RR43: 175). They drove down the street and
appellant jumped into the backseat of Naimah’s car. (RR42: 160; RR43: 175).
7
Naimah drove a short ways further and dropped Christal off at the location where
appellant had left her car. (RR42: 161; RR43: 175-76). Naimah told Christal to hug
and kiss her child when she got home and tell him she loved him. (RR42: 161,
173). As Christal was driving home, she was pulled over by several police officers
and taken to Dallas Police Headquarters for questioning, where she learned about
the events of the morning and what appellant had done. (RR42: 161-62). A search
of Christal’s car revealed mud on the interior. (State’s Exhibits 25-36).
After Naimah dropped off Christal at her car, appellant told her where to
drive to find Naim and Elijah. (RR43: 176-77). From the service road of IH-35, they
turned on Brookside Drive and drove to a heavily wooded area at the end of the
road with a steep incline down to a shallow creek. (RR43: 176-77, 186, 191-92,
199-200). Naimah waited at the top next to a sewer manhole cover while
appellant went down to the creek and retrieved the boys one at a time. (RR43:
177-78, 194). Appellant brought Naim up from the creek first. (RR43: 178, 194).
He laid him on the ground and Naimah attempted to perform CPR. (RR43: 178-79,
194). Appellant went back down and retrieved Elijah from the creek. (RR43: 179,
194). After Naimah’s attempts at CPR were unsuccessful, appellant put both boys
in the backseat of her vehicle. (RR43: 179-80). They left the creek and drove back
8
toward the house on Songwood, but before they arrived appellant jumped out of
the vehicle. (RR43: 180-81). Naimah pulled into a parking lot on Ledbetter Road.
(RR43: 182). She saw an officer driving by, so she flagged him down and told him
that her grandbabies were in the back of her car. (RR43: 182-83). When the police
searched and photographed Naimah’s car, the backseat was muddy and wet.
(RR43: 190).
Appellant was eventually captured by police later that day. Michael Yeric, a
homicide detective with the Dallas Police Department, interviewed appellant at
the police headquarters when he was brought into custody. (RR43: 209-14;
State’s Exhibits 152-53, 167). Detective Yeric read appellant his rights, and
appellant indicated that he wanted to waive those rights and speak with the
detective. (RR43: 217, 233-34, 237-38). Appellant told Detective Yeric that he had
borrowed his friend Christal’s car that morning because he wanted to take his son
to his first day of school. (RR43: 239). He went to Priscilla’s home around 6:30
a.m., but was not allowed to see his kids. (RR43: 239). Appellant found Kametra
and the boys as they were walking to school, forced them into the car with him,
and began driving around. (RR43: 239-40). As they approached Camp Wisdom on
the service road of R. L. Thornton freeway, appellant and Kametra saw a
9
constable’s car. (RR43: 241). Appellant told Kametra, “Don’t get out of this car,”
and “if you jump out of this car, you don’t care about your kids.” (RR43: 241).
Kametra jumped out of the car and went to the passenger side of the constable’s
car, and appellant drove off. (RR43: 241). Appellant admitted to then driving to
the creek and drowning Naim and Elijah. (RR43: 220, 241).
When Detective Yeric visited the scene of the drowning, he noticed a
security camera mounted outside of Spirit Depot, a liquor store on the corner of
Brookside Drive and the service road. (RR43: 221-22, 225). Detective Yeric
obtained the video footage recorded by this camera on August 22, 2011. (RR43:
221-22; State’s Exhibits 155-68). The video footage showed that appellant first
drove down Brookside Drive in Christal’s car at 8:53 a.m. and exited a short time
later. (RR43: 222-23, 230). It then showed Naimah’s car drive down Brookside
Drive at 12:15 p.m. and exit a short time later. (RR43: 223, 230). This video
footage corroborated the information relayed to the detective by appellant,
Naimah, and other witnesses they interviewed during their investigation. (RR43:
233).
Dr. Tracy Dyer, a board-certified forensic pathologist and staff medical
examiner at the Southwestern Institute of Forensic Sciences (“SWIFS”), supervised
10
the autopsies of 3-year-old Elijah Muhammad and 5-year-old Naim Muhammad.
(RR42: 115-39). Both Elijah and Naim arrived at SWIFS in wet clothing with dirt
and debris scattered across their bodies. (RR42: 120-22, 134). Both boys had
scratches on their heads and hands; additionally, Elijah had scratches on his back,
legs, and feet. (RR42: 120-26, 136-37; State’s Exhibits 4-8, 10-21, 24). The internal
examination revealed that Elijah had bruising on his scalp, dirt and debris in his
airway, and an abundant amount of fluid in his lungs. (RR42: 126-30; State’s
Exhibits 22-24). Naim also had bruising on his scalp and fluid in his lungs. (RR42:
137-38; State’s Exhibits 9-10). Dr. Dyer determined that the cause of death for
both Elijah and Naim was drowning and that their manner of death was homicide.
(RR42: 130-31, 138-39; State’s Exhibits 10, 24).
After hearing this evidence, the jury returned a verdict of guilt in
approximately eight minutes. (RR44: 34, 41).
B. The State’s Punishment Evidence
During punishment, the State presented evidence showing that appellant’s
experience with the criminal justice system began at a young age and spanned a
period of about twenty years. This evidence was presented through business
11
records of prior criminal convictions, as well as live testimony regarding various
extraneous adjudicated and unadjudicated offenses.1
On January 30, 1993, appellant was arrested for burglary of a coin-operated
machine. (RR44: 111-12). Appellant and a cohort were removing quarters from a
vacuum cleaner at a car wash. (RR44: 112-13). When Dallas Police Officer John
James and his partner arrived at the location, appellant and his cohort fled. (RR44:
114). Appellant, who was thirteen years old at the time, was apprehended a few
blocks away and taken to the juvenile jail. (RR44: 114-15).
On February 26, 1993, Ivis Wright, a single mother of three, returned home
to find her back door had been kicked in and several items had been stolen from
her home, including a VCR, Nintendo gaming system, a cordless phone, money,
and candy. (RR44: 119-21). Five juvenile boys were apprehended fleeing Wright’s
home and placed under arrest for burglary. (RR44: 121, 124-27). Officer Chris
Havens identified Naim Rasool Muhammad as one of the perpetrators. (RR44:
127). On October 4, 1993, Dallas Police Officer David Solomon responded to a call
1
The judge gave both an oral and written instruction to the jury that they were not to consider
extraneous offenses for any purpose unless they found and believed beyond a reasonable
doubt that appellant committed the offenses, if any were committed, and even then they could
only consider them in determining their answers to the special issues. (RR45: 41-42; CR2: 406).
12
reporting an auto theft in progress. (RR45: 82-84, 126-27). Officer Solomon pulled
over a vehicle matching the description of one of the stolen vehicles and
appellant was one of the passengers. (RR45: 86, 88, 127-28). Officer Solomon
determined that the passengers were not involved in the reported auto theft;
however, Officer Solomon arrested appellant because he had outstanding
warrants for two charges of burglary of a habitation, one of which was for the
burglary Wright’s home. (RR45: 89, 97-99, 100-01, 103, 128-30).
On June 16, 1993, appellant was arrested for possession of a stolen vehicle.
(RR45: 48-49, 51). Former Dallas Police Officer Sekethia Tejada pulled up behind a
Cadillac, ran the plates, and realized it was a stolen vehicle. (RR45: 48-49). When
she pulled the vehicle over, there were two young men inside; appellant, who
was fourteen years old at the time, was the passenger. (RR45: 50-51). The
steering column was broken and they had managed to start the engine without a
key. (RR45: 51).
On April 5, 1994, appellant committed burglary of a habitation. (RR44: 109;
State’s Exhibit 170). On May 25, 1994, a juvenile Order of Adjudication and
Judgment of Disposition with No Placement was entered and appellant was
sentenced to 12 months’ probation. (RR44: 109; State’s Exhibit 170).
13
On July 27, 1994, Dallas Police received a call reporting a burglary of a
vehicle that was in progress. (RR44: 140-41). Lieutenant Harold Andrews was
driving around the area where the burglary occurred and spotted appellant, who
matched the description of one of the suspects. (RR44: 142). Lt. Andrews
detained appellant and brought him back to the scene of the burglary, where he
was identified by the complainant as one of the perpetrators. (RR44: 142-43).
On August 18, 1994, appellant committed unauthorized use of a motor
vehicle and evading arrest. (RR44: 108-09; State’s Exhibit 171). A juvenile Order of
Adjudication and Judgment of Disposition with Placement was entered on
September 9, 1994, sentencing appellant to 12 months’ probation to be served in
the custody of Daytop Village. (RR44: 108-09; State’s Exhibit 171).
Daytop Village provides a 9-month program for 13 to 18 year olds and is
designed to rehabilitate juveniles so that they do not end up in “the system.”
(RR46: 9-11, 13). If a juvenile completes the program at Daytop, they are returned
to their family; if not, they are sent to the Texas Youth Commission (“TYC”), a
correctional facility for youth offenders. (RR46: 11, 13, 38). Youths attending
Daytop are given multiple opportunities to succeed in the program. (RR46: 12-13,
34). Daytop operates using the merit system and infractions are judged by peers,
14
not adults. (RR46: 10-11, 13). Daytop residents attend school, enjoy recreation
time, participate in group meetings, and also receive one-on-one counseling.
(RR46: 17-18). During his stay at Daytop, appellant had many difficulties and was
placed on a behavior contract in an effort to change his aggressive behavior
toward other residents. (RR46: 16; State’s Exhibit 177). Despite this contract, on
July 1, 1995, appellant physically assaulted another resident on two separate
occasions. (RR46: 16-17, 26; State’s Exhibit 177). Due to the two new assaults, as
well as the prior infractions resulting in the behavior contract, the leaders of the
program voted to discharge applicant from Daytop and send him to TYC. (RR46:
16-19, 32-33; State’s Exhibit 177).
While in TYC, appellant committed multiple infractions. On September 16,
1995, appellant was written up for disruptive behavior and threatening staff.
(RR46: 83). After being repeatedly instructed to be quiet, appellant stated that he
would like to “beat somebody down.” (RR46: 83). He then looked at former TYC
correctional officer Linda Parker and said “especially females.” (RR46: 81-83). On
December 12, 1995, appellant was written up for disruption of the program and
possession of razor blades and crushed aspirin. (RR46: 56, 59; State’s Exhibit 178).
According to former TYC correctional officer Michael Jaco, the inmates snorted
15
crushed aspirin to get high and often used razor blades to create weapons. (RR46:
52-53, 56-57). Appellant was trading the contraband for snacks. (RR46: 56, 63;
State’s Exhibit 178). On January 11, 1996, appellant was written up multiple times
for aggressive behavior toward other inmates, disruptive behavior in the
classroom, disobeying staff, and calling a pregnant female correctional officer a
“fat mother-fucker.” (RR46: 70-72). On August 17, 1996, appellant was written up
for a disruption on the volleyball court. (RR46: 77). When he was asked to leave,
appellant became explosive and cursed at staff members. (RR46: 77). He called
former TYC correctional officer Kenneth Allen a “fat mother-fucker” and told him
“fuck your mother.” (RR46: 74-75, 77-78). On August 27, 1996, appellant was
written up for rubbing his erect penis against the leg of his teacher, Nina Adams.
(RR47: 18-24). On September 15, 1996, appellant was written up for fighting.
(RR46: 40-42). He and his cohort assaulted another inmate while he was being
held down on a toilet. (RR46: 40-42). On September 20, 1996, he was written up
for being disruptive in the dining hall. (RR46: 78-79).
According to former correctional officer Gail Hamilton, appellant was not a
law abiding person while at TYC. (RR46: 36-37, 46). Many of the correctional
16
officers at TYC tried to talk to appellant and encourage him to stop the
progression of his criminal behavior to no avail. (RR46: 44-45, 54-55).
Appellant was released from TYC in December of 1996 and resumed his
criminal activity shortly thereafter. On July 30, 1997, appellant committed
burglary of a vehicle and evading arrest. (RR44: 109; State’s Exhibits 172, 173). On
September 19, 1997, he pleaded guilty to each offense and was sentenced to 12
months’ probation in each case, but he was subsequently revoked for failing to
comply with the conditions of his probation. (State’s Exhibit 172, 173).
On December 4, 1997, appellant committed theft at a Lowe’s store in Collin
County. (RR44: 108; State’s Exhibit 174). On September 28, 1998, he pleaded
guilty to the charge and was sentenced to probation for one year, but he was
subsequently revoked and sentenced to 180 days’ confinement. (State’s Exhibit
174).
On January 27, 1998, appellant committed burglary of a vehicle. (RR44:
109-10; State’s Exhibit 175). On February 11, 1998, he pleaded guilty to the
charge and was sentenced to 180 days’ confinement. (RR44: 109-10; State’s
Exhibit 175).
17
On July 4, 1999, Garland Police Officer Brandon Hernandez and several
other officers responded to a burglary alarm at a car lot off Forest Lane in Dallas.
(RR45: 60-63). Officer Hernandez and his partner spotted appellant walking away
from the business toward a suspicious vehicle that was running but did not have
its lights on. (RR45: 63-64). When another officer approached the vehicle on foot,
the vehicle sped away. (RR45: 64-65). Officer Hernandez and his partner chased
the vehicle and made a felony traffic stop. (RR45: 65). Appellant and two other
passengers were removed from the vehicle and the officers found a loaded
shotgun inside. (RR45: 65-66). They also found a bag of marijuana and a
screwdriver, a common burglary tool, just outside the vehicle that appeared to
have been thrown out by the passengers. (RR45: 66-67). When the officers
checked appellant’s name and date of birth in their system, they discovered he
had outstanding felony and probation warrants. (RR45: 69, 70-71). All three
passengers of the vehicle were arrested. (RR45: 70-71).
On April 7, 2001, Jeanette Harris, appellant’s next door neighbor at the
time, caught appellant peeping at her through the bathroom window when she
was in the shower. (RR45: 43-45). When Harris confronted appellant about the
18
incident, he threatened to “whip *her+ ass.” (RR45: 45-46). Harris called the police
and appellant fled. (RR46: 45).
On April 20, 2009, Dallas Police Officer Ryan Foster and his partner
responded to a disturbance call in South Dallas. (RR45: 132-33, 140). Sekinah
Muhammad, appellant’s sister, was upset and was bleeding from the back of her
head. (RR45: 133-35). Appellant and Sekinah had gotten into an argument. (RR47:
28-29). When appellant refused to leave, Sekinah came toward appellant with a
hammer. (RR47: 28-29, 32-33). Appellant took the hammer from her and hit her
in the head with it two times. (RR45: 138-39; RR47: 28-29, 32-35). Appellant was
apprehended a few blocks away from the offense and arrested for assault. (RR45:
138-40).
Appellant pleaded guilty to the aggravated assault of his sister and was
placed on probation on September 15, 2009. (RR46: 141-43, 147; RR47: 37; RR49:
99-100; State’s Exhibit 185). Appellant violated the conditions of his probation on
many occasions. He was ordered to wear an electronic monitoring device on
September 25, 2009, but was arrested four days later for failing to comply with
the electronic monitoring requirements. (RR46: 143-44). Over the next nine
months, appellant failed to comply with several other conditions of his probation
19
by testing positive during multiple urinalysis tests, failing to regularly report to his
probation officer, failing to complete any community service hours, failing to
complete anger management, failing to attend Narcotics Anonymous meetings,
and failing to pay the required fees and court costs. (RR46: 144, 148-49, 150-51).
Despite these numerous violations, in June of 2010, appellant was continued on
probation and sent to an intermediate sanctions facility (“ISF”) to complete a
cognitive track program. (RR46: 152, 163). Appellant completed the program and
was released in January of 2011; however, one month later he was arrested for a
family violence assault against Kametra and absconded from probation for the
next five months. (RR46: 152-53). He had a warrant out for his arrest for violating
his probation at the time he was arrested the instant offense on August 22, 2011.
(RR46: 154).
Appellant did not voluntarily turn himself in after drowning his two sons.
He evaded police for most of the day, but was eventually captured. After the
boys’ bodies were found in the back of Naimah’s car, several police officers set up
a perimeter of the area and continued to search for appellant with the assistance
of the helicopter unit. (RR46: 104, 107-11). Eventually appellant was spotted on
foot, and five to six officers pursued him in a foot-chase. (RR46: 111-12). They
20
finally captured him in the bottom of an empty creek bed and appellant resisted
arrest by fighting, pushing and kicking the officers. (RR46: 112-13). The officers
had to use a Taser at least three times in order to gain control and place him in
handcuffs. (RR46: 113-14).
While confined in Dallas County Jail and awaiting trial for capital murder,
appellant had several disciplinary violations. On October 25, 2011, when appellant
was instructed that he would be changing cells, he refused and had to be forcibly
moved to another cell by two guards. (RR47: 101-03). Appellant was given five
days of restrictions as a result, which meant that he was moved into a single cell
and not allowed to go to the commissary, have visitation, or make personal phone
calls other than to his attorney for five days. (RR47: 105). On April 25, 2012,
appellant was unhappy about the tray of food he was served and refused to
return the plastic tray until the guard served him another tray. (RR47: 104). When
the guards went into appellant’s cell to cease the food tray, appellant swung at
one of them and the guards had to use force to detain him. (RR47: 104-05). As a
result of this infraction, appellant was given twenty-five days of restrictions.
(RR47: 105). On March 26, 2013, appellant was written up for fighting another
inmate and received fifteen days of restrictions. (RR47: 111-12). On November 24,
21
2012, in a jail phone call to his brother Jamal, appellant told his brother that the
only reason he had not “fired off on some of these fools” was because he wanted
to keep up with his sports and visits. (RR47: 136–38; State’s Exhibit 184).
In addition to appellant’s lengthy history of criminal behavior and
disrespect toward any person of authority, the State also presented evidence of
appellant’s violence toward Kametra throughout their relationship. Kametra met
appellant in the summer of 2005 when she was fifteen years old and they began
dating. (RR46: 169-70). They had been dating for two to three weeks when
appellant became violent with her. (RR46: 176). The first incident of violence
happened in the backyard of appellant’s house following a verbal argument.
(RR46: 177). Kametra told appellant she was leaving and he grabbed her, threw
her in the back seat of his car, hit her with his fists multiple times, and told her
she was not leaving. (RR46: 177-78).
Appellant’s violence toward Kametra occurred once or twice a week in the
beginning of their relationship, but escalated over the last few years they were
together. (RR46: 179-80, 202). If Kametra burnt the rice, stayed outside too long
with her sister, spoke disrespectfully to appellant, or questioned appellant about
the way he was spending her money, appellant responded with physical abuse.
22
(RR46: 202-03, 210-13). When Kametra found out she was pregnant with their
first child, Naim, appellant became upset and asked her to have an abortion.
(RR46: 186-87, 188-89). He also encouraged her to drink bleach or attempt to
abort the baby using a wire hanger. (RR46: 188). When Kametra refused to abort
the baby, he punched and kicked her in the stomach in an effort to make her have
a miscarriage. (RR46: 187-88, 191). Appellant repeated this abusive behavior
when Kametra became pregnant with Elijah. (RR46: 195-96). Kametra’s sister,
Gabrielle Armstead (“Gabby”), witnessed the abuse and repeatedly encouraged
Kametra to leave appellant. (RR46: 210-13).
In December of 2010, Kametra had grown tired of appellant being in and
out of jail, failing to work, and being physically abusive towards her, so she
decided to leave him. (RR46: 218-20). She and the boys left with her sister Gabby
and stayed in a motel. (RR46: 221-22). For the next few months, they bounced
around between the motel, shelters, and Priscilla’s house. (RR46: 221-23, 225).
Kametra resorted to prostitution in order to make money for food, diapers, the
motel, and her newly developed drug addiction. (RR46: 222, 224). After a few
months, Kametra checked into Nexus, a drug abuse treatment facility, and
received the help she needed. (RR46: 222, 224-25, 249-51). Despite the hard
23
times she encountered over the months after leaving appellant, she knew that
leaving him was the right decision and never got back together with him. (RR46:
222).
After the breakup, appellant continued to use violence to make Kametra
comply with his demands. In February of 2011, when Kametra and the boys were
were staying with her mother, appellant came over and wanted to take Naim and
Elijah with him. (RR46: 228-30). When Kametra told him no, appellant punched
Kametra in the face, grabbed Naim from inside the house, and kicked in the side
door of the house to escape. (RR46: 230-35). Kametra called the police, who
located appellant a short time later and brought Naim home. (RR46: 233-36).
In March of 2011, Kametra borrowed Gabby’s car to pick up the boys from
appellant’s house. (RR46: 236-37). Appellant insisted that Kametra take him to
the store and got in the car with them. (RR46: 239). When Kametra refused,
appellant choked her until she passed out. (RR46: 240). She awoke inside
appellant’s house and when she attempted to leave, appellant hit her in the head
with a heavy object. (RR46: 241). Kametra finally convinced appellant to let her
return Gabby’s car. (RR46: 242-43). When they exited the car, Gabby saw that
Kametra was bleeding and called the police. (RR46: 243). Appellant was carrying
24
Elijah and threatened to kill him if Kametra did not go with him. (RR46: 245-46).
The police were driving around searching for appellant and when they spotted
him, appellant took off running. (RR46: 247). Initially he was still holding Elijah,
but he threw him down and kept running. (RR46: 247-48). Following this incident,
CPS instructed Kametra that appellant was not allowed to have unsupervised
visitation with the boys. (RR46: 250).
In light of this history, Kametra was afraid of appellant and believed his
threats to kill her, Naim, and Elijah on the day of the offense. (RR46: 252).
Kametra believed that if she had done anything differently that day, the outcome
would be worse and they would all be dead right now. (RR46: 252). She also
believes that Jeremiah would be dead if Brandon had not been at her mother’s
house that morning. (RR46: 252).
Since the day of the offense, appellant has continued to blame others for
his actions. At the end of his police interview, appellant asked Detective Yeric to
tell Kametra that she was the reason he did it. (RR47: 118). While in jail, appellant
wrote a letter to Kametra’s mother stating, “I wished that I could have just talked
to [Kametra] about this, but she should have never jumped out of the car and did
what she did...this may sound crazy, but tell her I love her still and wish she would
25
have just listened to me that day because I didn’t want this to happen.” (RR46:
256; State’s Exhibit 42).
C. Appellant’s Punishment Evidence
At punishment, appellant presented evidence of the neglect, violence, and
sexual abuse he suffered during his childhood. Appellant had five siblings:
Abdullah, Jamal, Aqueelah, Sekinah, and Rashad. (RR47: 140, 169-70, 183-84).
Their mother, Naimah, was married to Roger Mopping when the children were
young, until about the time that Jamal was in fifth grade. (RR47: 141, 170-71).
Roger was the biological father of Jamal and Aqueelah. (RR47: 141, 183, 233,
248). Abdullah and appellant were told that their biological father was a man
named Lynn, but no one knew for sure. (RR47: 149-50, 154, 183-84, 233, 248-49).
None of them knew who the biological father of Sekinah or Rashad was. (RR47:
149, 162-63, 184, 248-49). Naimah was a drug-addicted prostitute who was rarely
home. (RR47: 148, 150, 184-86, 231, 235-36; RR48: 31, 38-39, 47). Roger also
became addicted to drugs. (RR47: 149-50, 186, 234-35, 238). Roger loved Naimah
but eventually left her because she kept getting pregnant by other men. (RR47:
249).
26
After Roger left, Naimah and the children moved in with Naimah’s mother
Dorothy May Butler (“Madea”), who was confined to a wheelchair. (RR47: 152-53,
187-88). Even though Madea was crippled and regularly needed assistance from
the children, this was the only stable portion of their childhood that they could
recall. (RR47: 152-53, 187-88). After Madea passed away, Naimah was married to
Joe Johnson for a short time. (RR47: 142, 159). While Joe did work and put a roof
over their head, he was an alcoholic and appeared to care more about his hogs
than the children. (RR47: 159-61, 198-99, 245; RR48: 47). When Joe left Naimah,
the children lived with a variety of different people. (RR47: 161, 164, 193, 206-08;
RR48: 29, 45). The girls were taken in by family members and somewhat
protected; however, the boys, who were all already involved in the juvenile
system, were forced to fend for themselves. (RR47: 164, 177, 207; RR48: 29-30,
45-46, 52, 55). According to Jamal, they ate out of dumpsters and resorted to
crime to make money. (RR47: 164-65).
Throughout their childhood, appellant and his siblings were regularly
exposed to drugs and violence in their home. Naimah, her brothers, and her
sister, Tina, drank alcohol and smoked cracked cocaine together at the house and
these binges frequently ended with violent fights. (RR47: 167, 194-95; RR48: 39,
27
42-43). Naimah and Tina fought the most, and Tina was sent to prison for twenty
years for stabbing Naimah in the face during one of their arguments. (RR47: 156-
57, 195-97; RR48: 42). Naimah was also violent toward the children when she
believed they were taking her drugs away. (RR47: 166, 189-92).
The children were also victims of sexual abuse. Abdullah, the eldest
brother, sexually assaulted Aqueelah, Sekinah and appellant. (RR47: 202-03;
RR48: 40-41). Aqueelah and Sekinah recalled that he would frequently come into
their room at night and rub his penis on them, fondle them, and ejaculate on
them. (RR47: 202-03; RR48: 40-41). According to appellant, Abdullah played with
his penis and made appellant play with his. (Defendant’s Exhibit 11). Appellant
also reported that he was sexually abused around age four or five by an older
woman who asked him to have sex with her. (Defendant’s Exhibit 11).
Both Aqueelah and Sekinah graduated from high school due to the
guidance they received from the friends and relatives who helped take care of
them in Naimah’s absence. (RR48: 31-32, 37). However, no one encouraged the
boys to attend school or stay out of trouble. (RR47: 204; RR48: 31-32, 46). To the
contrary, the eldest brother, Abdullah, taught Jamal to steal and commit crimes,
and that way of life was then passed on to appellant and Rashad. (RR47: 153-55,
28
205; RR48: 32). Like appellant, Abdullah, Jamal and Rashad were involved in a
number of juvenile and adult crimes and spent time in prison. (RR47: 157-58, 163,
205-06; RR48: 29). Abdullah was shot in the chest when he was eighteen years old
and survived; however, he died from complications related to that gunshot
wound in January of 2011. (RR47: 158).
With regard to appellant’s medical history, the defense presented evidence
that appellant was struck by an automobile around age three and had to go to the
hospital. (RR48: 177-78; Defendant’s Exhibit 11). In 2009, appellant started having
brain seizures and has been receiving treatment for epilepsy since that time.
(RR48: 178-79; Defendant’s Exhibit 11).
Dr. Gilbert Martinez, a clinical neuropsychologist, was hired by the defense
to test appellant’s cognitive and intellectual functioning. (RR48: 100-02). In order
to form the opinions offered by his testimony, Dr. Martinez examined appellant’s
medical records and a previous psychological evaluation conducted in 1994 when
appellant was in the juvenile system. He also conducted a clinical interview of
appellant and administered a battery of psychological tests on appellant. (RR48:
102-04, 106-07, 111-12, 141; Defendant’s Exhibit 11). With regard to his
intellectual functioning, appellant received a full-scale IQ score of 76. (RR48: 114-
29
16, 124-25; Defendant’s Exhibit 11). According to Dr. Martinez, appellant is not
mentally retarded, but his IQ score falls in the borderline range of intellectual
functioning. (RR48: 114-16, 124-25, 133; Defendant’s Exhibit 11).
With regard to appellant’s cognitive functioning, Dr. Martinez diagnosed
appellant with mild neurocognitive disorder. (RR48: 122-24; Defendant’s Exhibit
11). Appellant does not have severe cognitive or memory deficits, but he does
have deficits in executive functioning. (RR48: 118-19, 122-24, 133). Dr. Martinez
explained that a person with deficits in executive functioning has poor judgment
and reasoning and may have difficulty making decisions, controlling their thinking
and behavior, and learning from their mistakes. (RR48: 111, 123-24, 126-27, 134-
35, 164-65). Dr. Martinez believes that appellant’s deficits in executive
functioning may be due to the combined effect of his epilepsy, the head injury he
sustained as a child, and the lack of emotional support he received as a child.
(RR48: 127-29, 133; Defendant’s Exhibit 11). Appellant’s chronic drug use could be
a contributor to his deficits in executive functioning, or appellant’s choice to use
drugs could be the result of those deficits and his poor judgment. (RR48: 131,
133).
30
Dr. Kellie Gray-Smith testified as an expert on special education and the
multicultural aspects of psychology. (RR49: 11-14). Dr. Gray-Smith, a licensed
psychologist and licensed specialist in school psychology, is currently employed as
the special education coordinator for Plano Independent School District. (RR49:
11-12). In her field of study, it is well-documented that different cultures treat the
intervention and treatment of medical, mental health, and educational needs
differently. (RR49: 15, 59). With regards to special education, there has
historically been distrust within the African-American community of special
education services and a negative stigma attached to a child who accepts those
services. (RR49: 15-16, 59). These beliefs are often perpetuated by black leaders,
especially in the church. (RR49: 16).
Special education was developed and designed to address students’
academic, emotional-behavioral, and social needs. (RR49: 17). She explained that
academic failure can develop for a number a reasons and it is not uncommon for
an emotional disturbance to cause academic failure or vice versa. (RR49: 18-19,
59-60). Many behaviors – such as fighting, profanity, disrespect, and non-
compliance – are perceived to be choice-based behaviors when sometimes they
are actually caused by an underlying emotional, behavioral, or academic
31
disability. (RR49: 19-20). Literature shows that students whose needs are not
recognized and addressed by an early age are at risk for chronic school failure,
removal from school, school dropout, unemployment, substance abuse, criminal
activity, and confinement in the penitentiary. (RR49: 21-24). If there is no
intervention or treatment, the student can develop oppositional defiant disorder,
conduct disorder and, eventually, anti-social personality disorder. (RR49: 42-43,
45). According to Dr. Gray-Smith, it is common for people with this behavior
pattern to end up in jail. (RR49: 43-44, 73). This is what is known within the
psychological community as the “school-to-prison pipeline,” and it is most
prevalent with African-American males. (RR49: 44).
Dr. Gray-Smith reviewed appellant’s school records, the psychological
evaluation done in 1994 when appellant was a juvenile, and the report of Dr.
Gilbert Martinez. (RR49: 26-27, 41). Dr. Gray-Smith testified that appellant’s
school records demonstrate that appellant experienced chronic school failure
starting in elementary school that went unaddressed. (RR49: 29-30, 33). In her
opinion, this pattern of school failure was consistent with oppositional defiant
disorder. (RR49: 56-57). She believed appellant’s behavioral problems continued
and escalated due to the school district’s failure to provide effective intervention
32
and assistance to appellant. (RR49: 30-31, 33, 35, 61). In her opinion, appellant’s
school and psychological records suggest that he has anti-social personality
disorder. (RR49: 58, 66-67, 72).
D. The State’s Rebuttal Evidence
Melodye Nelson, a 24-year veteran of the Texas Department of Criminal
Justice-Institutional Division (“TDCJ”), testified as an expert on the prison system
in Texas. (RR49: 101-47). Warden Nelson previously worked as a correctional
officer on death row and is now the senior warden over the Mountain View and
Hilltop female prison facilities. (RR49: 101-02). Warden Nelson testified generally
about how inmates are classified and housed and the opportunity for violence
within the prison system. (RR49: 102-47).
She explained that general population inmates are classified as a “G1”
through “G5,” with G1’s and G2’s being the inmates with the least amount of
supervision. (RR49: 105, 123). There is also administrative segregation and death
row, which are much more restrictive. (RR49: 105, 123, 135). An inmate’s initial
classification is not based on the crime committed, but rather on the sentence
received, his behavior during any previous incarceration, and whether he is a
member of a documented gang. (RR49: 105, 123-24, 126-28, 140). An inmate
33
serving a sentence of 50 years or more who has served less than ten years is
automatically going to be classified as a G3. (RR49: 109, 124). That person can
move up or down within the classification system depending on their behavior.
(RR49: 110-11, 127-31, 135-36, 146-47). This means a person convicted of capital
murder and sentenced to life without parole and who is not a documented
member of a gang would be classified as a G3; the only distinction, however, is
that person would never move down below a G3 classification. (RR49: 107, 109-
10, 111-12, 125-26).
Inmates classified as G1’s, G2’s and G3’s live in dormitories or cell blocks
and can walk around unescorted throughout their prison facility. (RR49: 105-06,
107, 14-41). A capital murderer sentenced to life without parole who is classified
as a G3 can shower, work, eat, go to school, go to the library and recreate like any
other G3 in the general population. (RR49: 107, 109). In contrast, inmates on
death row are housed in single cells and confined approximately 23 hours per
day. (RR49: 114). They are allowed visitation and limited recreation, but they are
strip-searched prior to leaving their cell and are always escorted in restraints with
two correctional officers. (RR49: 114).
34
According to Warden Nelson, the Texas prison system is a well-run
organization. (RR49: 121, 143). Nonetheless, there is an opportunity for violence
throughout the prisons, regardless of classification level. (RR49: 112, 118, 131,
144). Even on death row, the most secure unit in Texas, violence occurs. (RR49:
112-13). Whether an inmate will commit acts of violence depends on the
individual inmate and his demeanor. (RR49: 133-34, 136, 142). Inmates get
creative in making weapons and use whatever they have access to, including
typewriter rods, nails, screws, rocks, and sharpened chicken or pork bones. (RR49:
115-17).
SUMMARY OF ARGUMENT
Issues 1-20: The trial court properly denied appellant’s challenges for cause
against twenty prospective jurors. All of the denials were proper, and appellant
has not shown that he was denied the use of a statutorily provided peremptory
challenge.
Issues 21-22: Appellant’s argument that he was deprived of a lawfully
constituted jury lacks merit. Appellant has failed to prove that any of the trial
court’s rulings on any of the challenges resulted in the seating of a juror who was
biased or prejudiced.
35
Issues 23-26: The trial court did not abuse its discretion by admitting
autopsy photographs of the victims. The photographs were relevant and
necessary to assist the medical examiner with her testimony and to link the
victims to this testimony, and their probative value was not outweighed by the
danger of unfair prejudice
Issues 27 and 41: The trial court properly overruled appellant’s objections
to the State’s closing argument during both the guilt-innocence and punishment
phases of trial because the complained-of arguments fell within the permissible
areas of argument. Further, given the overwhelming evidence supporting the
jury’s guilty verdict and their answers to the special issues, any error was
harmless.
Issue 28: The trial court did not abuse its discretion by admitting testimony
regarding appellant’s statements to CPS investigator Pamela Womack. Because
Womack was not an agent of law enforcement, she was not required to comply
with Miranda.
Issue 29: The trial court did not abuse its discretion by admitting State’s
Exhibit 173, certified business records pertaining to appellant’s 1997 conviction
36
for evading arrest. The totality of the evidence sufficiently linked appellant to the
conviction.
Issues 30-32: The trial court properly overruled appellant’s objections to
the testimony of police officers Chris Havens, Harold Andrews, and Brandon
Hernandez. These officers properly used police reports to refresh their memory
and then testified from their refreshed memory.
Issues 33 and 37: The trial court did not abuse its discretion by admitting
the testimony of Officer David Solomon regarding his arrest of appellant. His
testimony was relevant to link appellant to an unadjudicated burglary offense
previously presented by the State, and it did not leave a false impression that
appellant was involved in a different offense.
Issue 34: The trial court properly admitted the expert testimony of Warden
Melodye Nelson as her testimony was relevant and helpful to the jury in deciding
the first special issue. Alternatively, any error in the admission of this testimony
was harmless.
Issue 35: The trial court satisfied its duty to conduct a threshold
determination of the admissibility of extraneous offenses. Any error in the trial
court’s failure to grant appellant’s request for a separate hearing was harmless
37
because the State clearly proved each extraneous offense presented during the
punishment phase.
Issue 36: Where the trial court granted appellant’s request and instructed
the jury to disregard inadmissible testimony, it did not abuse its discretion in
denying appellant’s motion for mistrial.
Issues 38 and 39: Appellant failed to preserve his complaints regarding the
cross-examination of his experts for appellate review. In any event, the trial court
did not err by permitting the State to cross-examine Dr. Kellie Gray-Smith and Dr.
Gilbert Martinez regarding antisocial personality disorder, an issue within their
area of expertise and clearly relevant to appellant’s death-worthiness.
Issue 40: The trial court’s statement regarding sequestration was not an
improper comment on the weight of the evidence. Regardless, appellant was not
harmed by the trial court’s comment because it was not calculated to benefit the
State or prejudice appellant’s rights.
Issue 42: The evidence was legally sufficient to support the jury’s answer to
the future dangerousness special issue. Based upon the facts of the instant
offense, as well as the evidence of appellant’s past acts of crime and violence, a
38
rational jury could find that appellant would constitute a continuing threat to
society.
Issues 43-54: Appellant’s admittedly meritless federal constitutional
challenges to the Texas death penalty statute are presented only to preserve the
complaints for federal habeas review. And while appellant invites this Court to
revisit its prior holdings against his position, he provides no new authority for this
Court or the State to address.
ARGUMENT
Issues 1-20: Denial of Defense Challenges For Cause
In issues 1 through 20, appellant claims the trial court violated statutory
and constitutional law by erroneously causing him to use all fifteen of his
statutorily allotted peremptory strikes plus two additional strikes on persons who
should have been removed for cause. Moreover, he contends that the trial court
forced him to accept an objectionable juror after denying his request for
additional strikes. (Appellant’s Brief, pp. 20-87).
The trial court properly denied all of appellant’s challenges for cause. Thus,
his contentions are without merit and should be overruled.
39
Applicable Law
A veniremember may be challenged for cause if, among other reasons, he
possesses a bias or prejudice in favor of or against the defendant or he possesses
a bias against an aspect of the law upon which the State or the defendant is
entitled to rely. See Tex. Code Crim. Proc. Ann. arts. 35.16(a)(9), (b)(3), (c)(2)
(West 2006); Threadgill v. State, 146 S.W.3d 654, 667 (Tex. Crim. App. 2004). A
“bias against the law” is the refusal to consider or apply the relevant law. Sadler v.
State, 977 S.W.2d 140, 142 (Tex. Crim. App. 1998). The test is whether the bias or
prejudice would substantially impair the prospective juror’s ability to carry out his
oath and instructions in accordance with the law. Threadgill, 146 S.W.3d at 667.
Appellant has the burden of establishing that his challenge for cause is
proper. See Feldman v. State, 71 S.W.3d 738, 747 (Tex. Crim. App. 2002). Before a
prospective juror can be excused for bias, the law must be explained to him and
he must be asked whether he can follow that law regardless of his personal views.
Threadgill, 146 S.W.3d at 667. Appellant does not meet his burden of establishing
that his challenge for cause is proper until he has shown that the veniremember
understood the requirement of the law and could not overcome his prejudice well
enough to follow it. See Feldman, 71 S.W.3d at 747.
40
When reviewing a trial court’s decision to deny a challenge for cause, the
appellate court looks at the entire record to determine if there is sufficient
evidence to support the ruling. Feldman, 71 S.W.3d at 744. The appellate court
reviews a trial court’s ruling with “considerable” or “great” deference because the
trial judge is in the best position to evaluate the prospective juror’s demeanor and
was present to observe the juror and listen to his tone of voice. Saldano v. State,
232 S.W.3d 77, 91 (Tex. Crim. App. 2007); Threadgill, 146 S.W.3d at 667.
Particular deference is given when the prospective juror’s answers are vacillating,
unclear, or contradictory. Threadgill, 146 S.W.3d at 667. The appellate court
reverses a trial court’s ruling on a challenge for cause “only if a clear abuse of
discretion is evident.” Colburn v. State, 966 S.W.2d 511, 517 (Tex. Crim. App.
1998). When the venireperson is persistently uncertain about his or her ability to
follow the law, the reviewing court does not second guess the trial court. Id.
To prevail on a claim of erroneous denial of a challenge for cause, the
defendant must object to the trial court that he is compelled to try his case with
at least one individual on the jury who he would have removed with a
peremptory challenge had one been available to him. Harm from the erroneous
denial of a defense challenge for cause occurs: (1) when a defendant uses a
41
peremptory challenge to remove a veniremember whom the trial court should
have excused for cause at the defendant’s request, (2) the defendant uses all of
his statutorily allotted peremptory challenges, and (3) the defendant
unsuccessfully requests an additional peremptory challenge which he claims he
would use to remove another veniremember whom the defendant identifies as
“objectionable” and who actually sits on the jury. Saldano, 232 S.W.3d at 91.
When this occurs, the trial court’s erroneous denial of a challenge for cause
harms the defendant by wrongfully depriving him of at least one of his statutory
peremptory challenges that he could have used to remove the juror whom he has
identified as objectionable. Id.
The parties asserted their challenges for cause and peremptory challenges
at the conclusion of each prospective juror’s individual voir dire. Appellant
exhausted all fifteen of his statutory peremptory strikes and two additional strikes
granted by the court. (RR36: 176-77; RR37: 85). The court denied appellant’s
request for a third additional strike to exercise on Ernest Hand, whom appellant
identified as objectionable. (RR39: 90-91). Since appellant received two extra
peremptory challenges, appellant must show that the trial court erroneously
denied at least three of his challenges for cause to the other veniremembers
42
identified in issues one through twenty. See, e.g., Saldano, 232 S.W.3d at 93
(noting that the defendant would have to show the trial court erroneously denied
his challenges for cause to three of the complained-of venire members because
he received two extra peremptory strikes).
The Trial Court Properly Denied Appellant’s Challenges for Cause
Issue 1: Milton Powell
Appellant exercised his first peremptory strike against Milton Powell. (RR6:
161-62). At trial, appellant objected that Powell should be excused for cause
because (1) he was “death prone,” (2) he would give a police officer witness an
“elevated level of credibility,” and (3) he would find appellant guilty regardless of
the State’s failure to prove a “technicality.” (RR6: 160-61). On appeal, appellant
contends Powell also should have been excused because he would not give
meaningful consideration to appellant’s mitigation evidence. (Appellant’s Brief,
pp. 22-23).
Appellant’s complaint about Powell’s inability to consider his mitigation
evidence is not preserved for review because it was not raised at trial. See Tex. R.
App. P. 33.1(a) (providing that a timely specific trial objection is prerequisite to
43
presenting a complaint on appellate review). Nevertheless, appellant fails to
demonstrate error in the denial of his challenge on any ground argued on appeal.
“Death Prone”
Appellant claims Powell’s answers showed that, if he found appellant guilty
of capital murder, then he would automatically answer the special issues in such a
manner to return a death verdict. (Appellant’s Brief, p. 21-22). The record reflects
the contrary. During questioning by both sides, Powell described his duty to
follow the law governing the special issues as “a tremendous responsibility.” He
insisted that he would carefully consider the evidence as it related to those issues
and that he would not return a death sentence simply because he found appellant
guilty. When asked by defense counsel if his ability to follow the law would be
impaired if the offense involved the death of a child, Powell stated only that it
would influence his answers to the special issues and make his task more difficult.
(RR6: 120, 122, 124, 137, 140-41, 147-48, 155-56). The court properly concluded
that Powell was not death prone.
Police Officer Credibility
Appellant contends Powell’s answers showed he “would give any police
officer automatic credibility before hearing the witness” and that he “would judge
44
a law enforcement officer using a different criteria [sic] to determine credibility
than other witnesses.” (Appellant’s Brief, p. 22). In his questionnaire, Powell
stated that he believed police officers were more likely to tell the truth than the
average person. (RR6: 123). During questioning at trial, the prosecutor explained
to Powell that the law required him to treat all witnesses as equals at the outset,
and that he must wait until he heard their testimony before assessing their
credibility. Powell responded that he understood this law and would follow it.
(RR6: 123).
During questioning by defense counsel, Powell again admitted his tendency
to believe officers and to give them an “elevated level of credibility.” (RR6: 133).
Defense counsel did not question Powell about whether this tendency would
affect his ability to follow the law, however. Thus, this statement did not impeach
or contradict Powell’s earlier assurances during the prosecutor’s questioning on
the matter. Even if it did, the statement merely presented the trial court with a
fact question which it was free to resolve against appellant. Threadgill, 146
S.W.3d at 667 (holding particular deference is given to trial court’s ruling on a
challenge for cause when the prospective juror’s answers are vacillating, unclear,
or contradictory).
45
State’s Burden of Proof
Appellant contends Powell’s testimony showed that “he would have a hard
time finding someone not guilty if the State failed to prove all of the elements of
the indictment.” (Appellant’s Brief, p. 23). In support of this contention, appellant
cites Powell’s testimony during defense questioning that he would “probably still
convict” if the indictment alleged Dallas County but the State proved the crime
occurred in Tarrant County. (RR6: 130-31). Powell made similar statements on
two other occasions during defense questioning. (RR6: 137, 140). None of these
statements required Powell’s excusal for cause.
At trial, defense counsel challenged Powell for refusing to require the State
“to prove beyond a reasonable doubt all the allegations in the indictment . . .”
(RR6: 161). The State is not required to prove venue beyond a reasonable doubt.
Proof by a preponderance of the evidence satisfies the State’s burden. Tex. Code
Crim. Proc. Ann. art. 13.17 (West 2005). Admittedly, the State also misstated the
law governing its burden of proof on venue. (RR6: 107-08). Nevertheless, Powell
cannot be deemed biased for refusing to hold the State to a higher standard of
proof than the law requires. Tex. Code Crim. Proc. Ann. art. 35.16(c)(2).
46
Even if appellant was entitled to a juror who would require a greater
degree of proof, the court did not abuse its discretion in overruling the challenge
to Powell. When initially questioned by the prosecutor on the matter, Powell
stated that he would hold the State to its burden of proving every element,
including venue, beyond a reasonable doubt. (RR6: 107-08). Furthermore,
Powell’s statements during defense questioning that he “probably would still
convict” and that he “might overlook” or “tend to overlook that technicality”
were not emphatic refusals to hold the State to its burden. Thus, resolution of this
conflict in Powell’s testimony against appellant was reasonable and within the
court’s discretion. Threadgill, 146 S.W.3d at 667.
Mitigation Bias
Lastly, appellant contends Powell should have been excused because he
“could not give meaningful consideration to any mitigation that the defense
would rely on in punishment.” (Appellant’s Brief, p. 22). In support of this
contention, appellant refers to Powell’s questionnaire, in which he disagreed that
genetics, circumstances of birth, upbringing, and environment should be
considered when determining punishment. He also cites to Powell’s testimony
that he felt incarceration was an insufficient punishment for some crimes. Id.
47
No juror is required to consider any particular fact as mitigating. Standefer
v. State, 59 S.W.3d 177, 181 (Tex. Crim. App. 2001). Moreover, Powell made
repeated and unwavering statements about his ability to follow the law and
consider all of the evidence in answering the special issues. (RR6: 120, 122, 124).
This is all the law required of him. Thus, if the court had been presented with this
particular challenge, it would have been proper to deny it.
Powell was qualified to sit on the jury, and this Court should overrule Issue
1.
Issue 2: Georgia Nichols
Appellant exercised his second peremptory strike against venireperson
Georgia Nichols. (RR10: 121). At trial, appellant objected that Nichols should have
been excused for cause because (1) she would not hold the State to its burden of
proving guilt beyond a reasonable doubt and (2) she could not consider the
minimum punishment for the lesser-included offense of murder. (RR10: 118-19).
On appeal, appellant does not complain that Nichols should have been excused
for her position on the punishment range for murder. Thus, that ground is not
presented for review.
48
Appellant does present and argue the other ground raised at trial –
Nichols’s inability to hold the State to its burden of proof at guilt. Moreover, he
raises two new allegations: (1) that Nichols would automatically have assessed a
death sentence if she found him guilty of capital murder, and (2) that she was
“biased against any mitigation.”2 (Appellant’s Brief, p. 29-30). Because these two
new grounds were not raised at trial, they are not preserved for review on appeal.
Tex. R. App. P. 33.1(a). Nevertheless, appellant fails to demonstrate that Nichols
should have been excused for cause on any of the three grounds argued on
appeal.
State’s Burden of Proof
Appellant contends Nichols should have been excused because her prior
jury service biased her against the law that required her to acquit if the State
failed to prove guilt beyond a reasonable doubt. Appellant cites to Nichols’s
questionnaire in which she commented on the following statement: “Regardless
2
In his brief, appellant also makes passing references to Nichols’s questionnaire answers
related to police officer credibility and her opinion about the rehabilitation of capital
murderers. There is no accompanying argument nor were these answers raised at trial as a
basis for challenging Nichols. (Appellant’s Brief, p. 30; RR10: 118-19). If these references were
intended to present additional grounds for excusing Nichols, they are inadequately briefed and
will not be addressed by the State.
49
of what a judge says the law is, jurors should do what they believe is the right
thing.” Nichols agreed with the statement, saying, “I was on a criminal jury once;
everything pointed to crime, but we let the criminal go free, because of ‘evidence,
beyond a doubt’, which does not exist & is impossible if not witnessed; we let a
bad man on the loose to hurt other children – I will never let this happen again.”
(Nichols Questionnaire, p. 7).
Both sides questioned Nichols about this statement and her prior
experience as a juror. On both occasions, Nichols explained that she believed the
defendant in the prior trial was guilty and that she was the lone “hold-out” juror.
The other eleven jurors told her that she could not vote guilty unless she believed
he was guilty “beyond a shadow of a doubt” or unless she was 100% certain of his
guilt. She believed that the only way she could be that certain of guilt was if she
witnessed the crime herself. (RR10: 41-42, 98-99).
The prosecutor explained that the burden of proof was beyond a
reasonable doubt – not a shadow of a doubt – and that whatever convinced
Nichols beyond a reasonable doubt was sufficient to convict. Nichols quizzed the
prosecutor repeatedly to ensure that she understood the burden of proof if
selected for appellant’s jury. (RR10: 43-44, 73-74, 77-78). And when questioned
50
by defense counsel, she confirmed her accurate understanding of that burden.
(RR10: 98-99, 100-01, 103). Furthermore, the prosecutor explained to Nichols that
if the State failed to meet its burden on any element of the offense, she was
required to acquit. Nichols understood and agreed with this law and repeatedly
stated that she would hold the State to its burden, even if it meant an acquittal.
(RR10: 49-53).
Nichols never demonstrated an unwillingness to hold the State to proof
beyond a reasonable doubt. The statement in her questionnaire evinced only a
misunderstanding of the law, not a bias against it, and her testimony resolved
that misunderstanding. Thus, the court properly denied the challenge against her.
Death Prone
Appellant contends various answers in Nichols’s questionnaire show that
she would automatically assess a death sentence if she found someone guilty of
capital murder. While apparently acknowledging that Nichols’s testimony shows
she would follow the law governing the assessment of punishment, appellant
contends she was indoctrinated by the prosecutor and that her answers did not
reflect her true opinions. (Appellant’s Brief, pp. 29, 31). The record reflects
otherwise.
51
Although Nichols strongly favored the death penalty, she stated that she
could set aside her strong feelings and give full consideration to the evidence.
(RR10: 71). She also agreed that a sentence of life without parole was an extreme
punishment and that she could be satisfied with such a sentence. (RR10: 53, 97,
106). Furthermore, she stated on numerous occasions that she would wait and
consider the evidence at punishment when assessing the sentence, even if she
found the defendant guilty. Her answers were not merely one-word assents to
propositions by the prosecutor. By all appearances, Nichols was a thoughtful,
intelligent woman with a strong desire to follow the law. Her answers indicated
an understanding and agreement with that law. (RR10: 45, 49, 54-55, 61-63, 65,
71, 77, 77-78). Indeed, she answered the same way when posed similar questions
at length by defense counsel. (RR10: 93-94, 100, 102, 107-08, 111, 113). Not once
did Nichols waver or give a conflicting answer on the matter. If appellant had
challenged Nichols on this basis at trial, the denial of that challenge would have
been proper.
Mitigation Bias
Appellant contends Nichols was biased against any mitigation because in
her questionnaire she opined that genetics, circumstances, upbringing,
52
environment, and intoxication did not excuse criminal behavior. (Nichols
Questionnaire, pp. 6, 10). Nichols had no duty to consider any particular fact as
mitigating. Standefer, 59 S.W.3d at 181. She was only obligated to consider all the
evidence presented at trial in determining her answers to the special issues. She
unequivocally stated that she would do this, and she specifically stated that she
would consider any mitigating evidence presented. (RR10: 45, 49, 54-55, 71, 107-
08, 113). Thus, if the court had been presented with this particular challenge, it
would have been proper to deny it.
Nichols was qualified to sit on the jury, and this Court should overrule Issue
2.
Issue 3: Dee Jay Earley
Appellant exercised his third peremptory strike against Dee Jay Earley.
(RR12: 244). At trial, appellant challenged Earley for lying on his questionnaire and
refusing to consider evidence of intoxication in mitigation of punishment. (RR12:
238-43). On appeal, appellant contends the court should have granted his
challenge on both of these grounds. He also contends the court should have
excused Earley for cause because he was “death prone.” (Appellant’s Brief, pp.
32-35).
53
Because it was not raised at trial, the contention that Earley was death
prone is not preserved for appellate review. Tex. R. App. P. 33.1(a). Nevertheless,
appellant fails to demonstrate that Earley should have been excused for cause on
any of the three grounds argued on appeal.
Dishonesty in Questionnaire
Appellant contends Earley was dishonest because he did not reveal his
volunteer work as a victim’s advocate in his questionnaire. Appellant
characterizes the omission as an intentional deception. (Appellant’s Brief, pp. 34-
35). The record refutes this characterization.
Earley first mentioned his advocacy work during questioning by the
prosecutor. The information was not directly solicited. Earley volunteered it.
(RR12: 171-72). He testified that he served as a victim’s advocate during his
military service. It was not part of his regular duties; it was volunteer work that he
agreed to do at the request of his commanding officer. He volunteered for two
and a half years. He would assist victims of domestic assault, child abuse, etc. with
finding food and shelter for the night and obtaining restraining orders. The
offenses were typically minor; none involved a murder. (RR12: 171-72, 197-201).
54
Appellant claims that Earley should have provided the information in
response to Question 58 in his questionnaire. The question asked Earley to list
“any local, state or national citizens’ law enforcement group such as a crime
commission, group that supports the death penalty, group dedicated to victims’
rights, traffic commission, neighborhood crime watch, Mothers Against Drunk
Driving or police or sheriff’s auxiliary.” (Earley Questionnaire, p. 9). When the
court asked Earley why he did not list his military advocacy work in response to
this question, he explained that he did not belong to any organization. He and the
other volunteers did not meet as a group. He would simply get a phone call and
respond. Moreover, Earley explicitly denied any intent to deceive. (RR12: 239-43).
The court believed Earley and that credibility determination is entitled to
deference. (RR12: 243). It is amply supported by Earley’s explanation, by his
express denial of any intent to deceive, and by the fact it was he who first
volunteered the information. Thus, the court’s denial of this challenge was
proper.
Consideration of Intoxication Evidence
Appellant contends Earley was biased against any mitigation evidence
because he did not believe evidence of intoxication should be considered in
55
mitigation of punishment. (Appellant’s Brief, p. 34). Earley had no duty to
consider any particular evidence mitigating. Standefer, 59 S.W.3d at 181. He was
only obligated to consider all the evidence presented at trial in determining his
answers to the special issues. Although he did not regard intoxication evidence as
mitigating, he stated that he would consider it in answering the special issues.
(RR12: 157-58, 225-30). Thus, Earley evinced no bias against the law and the court
properly denied this challenge.
“Death Prone”
Appellant contends that Earley’s responses to some of the questions in his
questionnaire show that he would automatically assess a death sentence if he
found the defendant guilty of murder or crimes against the elderly or children.
(Appellant’s Brief, p. 33). Earley’s testimony dispelled any notion that he was
“death prone.”
Although Earley favored the death penalty for certain types of crimes, he
had no problem with assessing a sentence of life without parole. (RR12: 204). He
also repeatedly and unequivocally stated that he would hold the State to its
burden of proof on the first special issue, he would wait, listen to, and consider
the punishment evidence before answering the special issues, and he would not
56
automatically assess a death sentence just because he found appellant guilty.
(RR12: 151-54, 159-66, 183, 188-89, 202-06, 215, 218-19, 224). The law required
nothing more of Earley. Thus, any challenge that he was biased against the law
would have been properly denied.
Earley was qualified to sit on the jury, and this Court should overrule Issue
3.
Issue 4: Timothy Tinsley
Appellant exercised his fourth peremptory strike against Timothy Tinsley.
(RR14: 116). At trial, appellant challenged Tinsley because: (1) he was unable to
give “fair and accurate consideration to sufficient mitigating evidence”; (2) he was
unable “to start police officers on the same level of credibility as other
witnesses”; and (3) he was “death prone.” (RR 14: 110-11). On appeal, appellant
argues that the trial court abused its discretion in denying his challenge on all
three grounds. (Appellant’s Brief, p. 36-37). The record justifies the court’s ruling.
Mitigation Bias
Appellant contends Tinsley could not give full consideration to his
mitigation evidence because of the “history of alcoholism in his family with his
57
brother as well as his stepdad.” (RR14: 110, 112). Tinsley’s testimony
demonstrates otherwise.
Tinsley testified that his stepfather was an alcoholic who repeatedly went
to prison. Tinsley lived with his stepfather for a year and a half and moved out
when he turned 18. (RR14: 28-30, 78-80). Also, Tinsley acknowledged in his
questionnaire and at trial that his brother is a recovering alcoholic. (RR14: 82;
Tinsley Questionnaire, p. 10). Based on his experiences with his stepfather, as well
as the lessons of his biological father who was a drill sergeant, Tinsley believed
people should be held accountable for their actions. (RR14: 28-30). Furthermore,
he expressly stated that he would not characterize evidence of voluntary
intoxication as mitigating. (RR14: 80-81). Tinsley he had no duty to treat such
evidence as mitigating, however. Standefer, 59 S.W.3d at 181. He was only
obligated to consider any evidence of intoxication presented at trial by either side
in determining his answers to the special issues. Tinsley’s testimony reflects that
he could fulfill that duty.
Tinsley never stated that he would not consider evidence of intoxication or
drug use at punishment. He repeatedly assured both sides that he would have to
hear the evidence before making any decisions on sentencing and that he would
58
wait and listen to the evidence in determining his answers to both special issues.
(RR14: 38, 46-47, 49-50, 57, 104). He explained what types of intoxication
evidence he would regard as mitigating, e.g., involuntary intoxication evidence.
(RR14: 80-81). Then, referencing his feelings about drug and alcohol abuse,
Tinsley avowed that his personal beliefs and the law “were two different things.”
(RR14: 85-86).
If there were any doubt as to Tinsley ability to consider voluntary
intoxication evidence at punishment, it was dispelled during the court’s
questioning of Tinsley on the matter. When asked if he could keep an open mind
as to any evidence either side might present on the punishment issues, Tinsley
said, “I think I can.” But when asked for a more definitive answer from the court,
Tinsley said, “I can.” (RR14: 113-15). Any vacillation in Tinsley’s answer was for
the trial court to resolve and that determination is entitled to deference.
Threadgill, 146 S.W.3d at 667.
Police Officer Credibility
Appellant contends Tinsley could not treat police officers the same as other
witnesses, starting them out on an equal basis. Tinsley’s testimony shows the
opposite.
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Tinsley stated that he would give a police officer “a little more respect”
than the “average Joe.” ((RR14: 105). But he was referring to how he would treat
them outside of the courtroom. (RR14: 106). In court, Tinsley would treat all
witnesses the same and wait until he heard the testimony to judge it, even if,
generally, he thought police were more credible. (RR14: 55-57). In Tinsley’s
opinion, “Everybody’s human, you know, so I would just – I would listen to the
story and how it’s presented to determine, yeah.” (RR14: 105). Tinsley held no
bias against the law governing police officer testimony, and the court properly
overruled this challenge.
“Death Prone”
Appellant contends that if he found appellant guilty of capital murder,
Tinsley would automatically answer the special issues in a manner that resulted in
a death sentence. (Appellant’s Brief, p. 36). Nothing in Tinsley’s testimony
supports this contention.
Throughout his testimony, Tinsley repeatedly stated that he would not
automatically vote for death if he found appellant guilty and that he would wait
and consider the evidence presented at punishment in answering the special
issues. (RR14: 38, 46-51, 57, 75, 86, 89, 104). By all appearances, Tinsley would
60
fulfill his duty of waiting and considering all the evidence before he determined
his answers to the special issues. The court properly concluded that he was not
challengeable as “death prone.”
Tinsley was qualified to sit on the jury, and this Court should overrule Issue
4.
Issue 5: Robin Linn
Appellant exercised his fifth peremptory challenge against venireperson Robin
Linn. (RR14: 232). At trial, appellant objected that she was “death prone” and her
testimonial responses were disingenuous and motivated by a strong desire to get
on the jury. (RR14: 228-32).
Linn’s questionnaire and testimony demonstrated that she strongly favored
the death penalty and that she wanted to serve on the jury. (RR14: 127-28, 131-
32; Linn Questionnaire). Neither of these facts rendered Linn challengeable for
cause, however. And the remainder of Linn’s testimony demonstrates an
unequivocal understanding of and willingness to follow the law.
While she favored the death penalty, Linn stated that she did not believe it
was appropriate for all homicides and that such a decision would have to be
based on the particular facts and circumstances of each case. (RR14: 132-36). She
61
would not refuse to consider any punishment evidence, she would not answer the
first issue affirmatively simply because she found appellant guilty of capital
murder, and she believed that the special issues were a fair method for assessing
whether the death penalty was appropriate. (RR14: 161-63, 169-70, 174). She
could envision a scenario where a murderer might not be a future danger and
where mitigating circumstances might warrant a life sentence. (RR14: 200, 210).
And although she would like to know if a defendant were remorseful, she would
not require him to testify to such in assessing his sentence. She understood that a
defendant might feel remorseful but be unable to testify at trial for a variety of
reasons. (RR14: 183, 201-02).
Appellant argued that Linn’s demeanor during questioning told another
story. According to defense counsel, Linn was simply saying what she needed to
say to get on a death penalty jury. But Linn’s desire to serve on appellant’s jury
was not motivated by a bloodlust. It was motivated by her faith in the system and
her sense of civic duty. (RR14: 127-28). Her thoughtful explanations and
responses throughout questioning by both sides evinced an intelligent woman
who understood the gravity of serving in death penalty trial and who took the
responsibility seriously.
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Defense counsel argued that Linn’s demeanor suggested otherwise. The
prosecutor disputed that characterization. (RR14: 231). The trial court apparently
disagreed as well because it overruled the challenge. (RR14: 232). The court’s
determination is entitled to deference and is amply supported by Linn’s
testimony, as detailed above.
Linn was qualified to sit on the jury, and this Court should overrule Issue 5.
Issue 6: Charles Stout
Appellant exercised his sixth peremptory strike against venireperson
Charles Stout. (RR16: 77). At trial, appellant objected that Stout would hold the
decision not to testify against appellant, that he would put the burden of proof on
appellant, that he would not presume appellant innocent, and that he did not
understand the Texas death penalty sentencing scheme. (RR16: 74-76). On
appeal, appellant focuses on one ground – holding his failure to testify against
him. (Appellant’s Brief, pp. 44-45). The court’s rejection of this challenge was
proper.
Appellant’s contention that Stout would hold his failure to testify against
him is premised on a mischaracterization of Stout’s testimony. Although he would
testify if he were a defendant, Stout repeatedly denied that he would hold
63
another’s decision not to testify against him. Stout agreed that the defendant has
no burden of proof, and he acknowledged that there could be a variety of reasons
a defendant might not testify that had nothing to do with his guilt or innocence.
(RR16: 36-38).
Stout did not equivocate or change his opinion when questioned on the
matter again by defense counsel. He reiterated the responses he gave the
prosecutor during earlier questioning. He also more specifically testified that he
would not hold the decision not to testify against appellant in determining his
guilt or innocence or in answering either of the special issues. (RR16: 47-48, 63-
65). Stout’s clear and unwavering responses show that he held no bias against
appellant’s Fifth Amendment right not to testify and would not consider it in his
deliberations.
Stout was qualified to sit on the jury, and this Court should overrule Issue 6.
Issue 7: Allen Harrington
Appellant exercised his seventh peremptory strike against venireperson
Allen Harrington. (RR23: 82). At trial, appellant objected that Harrington could not
consider evidence of intoxication, background, social issues, and expert mental
health testimony. (RR23: 81-82). On appeal, appellant argues that the trial court
64
should have granted his challenge on that basis and on the ground that
Harrington would automatically assess a death sentence if he found appellant
guilty of capital murder. (Appellant’s Brief, pp. 47-48).
Because the second ground was not raised at trial, it is not preserved for
appellate review. Tex. R. App. P. 33.1(a). Nevertheless, appellant fails to
demonstrate that Harrington should have been excused for cause on either
ground argued on appeal.
Mitigation Bias
Appellant contends that Harrington’s questionnaire responses and his
testimony show that he would not consider evidence of genetics, background,
environment, intoxication, or expert mental health testimony in answering the
mitigation special issue. In actuality, Harrington’s testimony shows that he would
consider such evidence, but that he did not regard it as mitigating. (RR23: 46, 77-
78). Harrington he had no duty to treat such evidence as mitigating. Standefer, 59
S.W.3d at 181. He was only obligated to consider any evidence presented in
determining his answer to the mitigation special issue. Harrington’s testimony
reflects that he could fulfill that duty.
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He stated that he would listen to the evidence and decide whether it was
sufficiently mitigating. He agreed that the needed to wait and listen because “you
never know what you’ll hear.” He also stated that his opinion about intoxication
and background evidence in particular would not prevent him from given it
consideration. (RR23: 77-78). Thus, the court properly denied this challenge.
“Death Prone”
Appellant contends Harrington’s questionnaire responses reflect that he
would automatically assess a death sentence if he found appellant guilty.
Harrington’s testimony reflects otherwise.
Harrington stated that although he strongly favors the death penalty, he
would not automatically assess it if he found appellant guilty. (RR23: 27, 38-39).
He agreed to wait and consider any evidence that would be offered on the special
issues. (RR23: 38-39). He understood that the State had the burden of proof on
the first issue and that he would hold the State to that burden. (RR23: 42-44). He
acknowledged that he would set the bar very high on the mitigation issue, but he
also stated that he wanted to hear evidence on the issue and that he would wait
and consider it before assessing any sentence “because you never know.” (RR23:
46-48).
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Appellant attacks the veracity of Harrington’s testimony. He argues that
“Harrington was being more truthful when answering the questionnaire than
when being examined” and that he “obviously wished to be on the jury and had
been instructed by the State as to arrive there.” (Appellant’s Brief, p. 47). The
totality of Harrington’s testimony showed he was an intelligent man with a firm
grasp of the law and a commitment to following it. Furthermore, Harrington
explained that he was in a hurry when he filled out the questionnaire because he
had to pick someone up from the airport. (RR23: 73-75). The court could have
reasonably concluded that Harrington was rushed in his answers and took less
care than if he had not been in such a hurry. Regardless, the trial court disagreed
with appellant’s characterization of Harrington’s testimony and that
determination is entitled to deference. Threadgill, 146 S.W.3d at 667.
Harrington was qualified to sit on appellant’s jury. This Court should
overrule Issue 7.
Issue 8: Anthony Morrison
Appellant exercised his eighth peremptory strike against venireperson
Anthony Morrison. (RR24: 88). At trial, appellant objected that Morrison equated
a death sentence with a guilty verdict on capital murder or murder and would not
67
consider certain types of mitigating evidence in answering the second special
issue. (RR24: 78-79). On appeal, appellant contends the trial court abused its
discretion in denying his challenge on both of these grounds. (Appellant’s Brief, p.
49-52). The record supports the court’s ruling.
“Death Prone”
Appellant argues Morrison’s feelings about the death penalty were so
strong that he would assess it as soon as the State proved appellant guilty of
capital murder. In support, appellant cites Morrison’s questionnaire responses
and a portion of his testimony during defense counsel’s examination. (Appellant’s
Brief, p. 52).
Morrison did not dispute that he strongly favored the death penalty, but he
also stated that he was open to a sentence of life without parole. (RR24: 17-18,
29, 64-65). Then he repeatedly stated that even though he thought someone
convicted of capital murder should get the death penalty, he would not let that
feeling determine the punishment he assessed. Rather, he would apply the
evidence to the law and let it determine his answers to the special issues and,
consequently, the sentence. (RR24: 58-59, 61-62, 71, 73-74). The totality of
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Morrison’s testimony shows that he would not assess an automatic death
sentence, and the court properly overruled this challenge.
Mitigation Bias
Appellant argues that Morrison was unable to give meaningful
consideration to mitigation evidence that he intended to rely on. To the contrary,
the record reflects that Morrison would consider appellant’s evidence of
background, environment, etc. Throughout his testimony, Morrison told both
sides and the court the same thing. He felt that a person’s background and
upbringing do not excuse criminal behavior. Yet he would set aside those personal
feelings and consider such evidence in answering the second special issue. (RR24:
41-42, 73-74, 84-85). At most, Morrison’s testimony shows that he might not
regard appellant’s evidence of background, environment, etc. as mitigating. This
did not render him challengeable because Morrison had no duty to treat any
particular evidence as mitigating. Standefer, 59 S.W.3d at 181.
Morrison was qualified to sit on appellant’s jury. This Court should overrule
Issue 8.
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Issue 9: Enriquez Martinez
Appellant exercised his ninth peremptory challenge against venireperson
Enriquez Martinez. (RR25: 205). At trial, appellant objected that Martinez would
automatically assess a death sentence and that he would not give adequate and
proper consideration to appellant’s mitigation evidence. (RR25: 202). On appeal,
appellant contends the trial court abused its discretion in denying his challenge on
both these grounds and should also have excused Martinez because he would
have required appellant to testify.
Because the third ground was not raised at trial, it is not preserved for
appellate review. Tex. R. App. P. 33.1(a). Nevertheless, appellant fails to
demonstrate that Martinez should have been excused for cause on any of the
three grounds argued on appeal.
“Death Prone”
Appellant argues that Martinez’s questionnaire responses show that he
would automatically assess a death sentence if he found appellant guilty of capital
murder. Martinez’s responses showed that he strongly favored the death penalty;
they did not show that he would automatically assess it. (Martinez
Questionnaire). Moreover, as appellant pointed out in his trial objection,
70
Martinez’s testimony demonstrates that he understood and would follow the law
in determining appellant’s punishment. He repeatedly and emphatically
differentiated between his feelings and the law and insisted that his feelings
would not prevent him from following the law. He thought the special issues
“process” was fair and preferable to jurors simply voting life or death. He would
apply the evidence to the special issues and let that determine the punishment.
(RR26: 160, 169-70, 172-76, 182, 191). He was not death prone and the court
properly denied this challenge.
Mitigation Bias
Appellant argues that Martinez would not give adequate consideration to
his mitigation evidence because he did not think a defendant’s background,
intoxication, or mental health excused their crime. Martinez’s testimony shows
that he would listen to any evidence appellant presented on the second special
issue, including background, intoxication, etc., but he would not regard it as
mitigating. This did not disqualify him from service because Martinez had no duty
to treat any particular evidence as mitigating. Standefer, 59 S.W.3d at 181. The
court properly denied this challenge as well.
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Failure to Testify
Finally, appellant argues that Martinez would require appellant to testify in
violation of his Fifth Amendment right against self-incrimination. Martinez denied
this. Martinez said that he would be looking for signs of remorse or regret if a
defendant did testify, but that he understood and respected the Fifth
Amendment right and that a defendant’s decision not to testify would not affect
his verdict. (RR26: 162, 182-84). Thus, any challenge that Martinez was biased
against Fifth Amendment law would have been properly denied.
Martinez was qualified to sit on appellant’s jury. This Court should overrule
Issue 9.
Issue 10: Paul Zugelder
Appellant exercised his tenth peremptory strike against venireperson Paul
Zugelder. (RR27: 226). At trial, appellant argued that Zugelder should be excused
because the court and the prosecutor left him with the impression that defense
counsel was misstating the law. On appeal, appellant reasserts this ground and
claims the court abused its discretion in denying the challenge. (Appellant’s Brief,
p. 59). Apparently, it is appellant’s contention that the alleged misimpression
72
biased Zugelder against the defendant. See Tex. Code Crim. Proc. Ann. art. 35.16
(a)(9). The record reflects no such bias.
Initially, defense counsel did make a misstatement of law. The
misstatement arose during defense counsel’s discussion of the concept of
“mercy” and its relevance to mitigation special issue. When he first explained the
law to Zugelder, defense counsel stated, “*T+he law specifically tells us, that a
juror’s concept of mercy, a juror’s concept of mercy alone based on anything they
have heard in the case is sufficient, if they believe it’s sufficient.” (RR27: 196-97).
The prosecutor objected to this misstatement. Mercy could not be based on
anything heard during trial; it had to be based on evidence. Defense counsel
agreed and clarified his prior statement, and then the court sustained the
objection. (RR27: 197).
When defense counsel continued his explanation, the prosecutor objected
again to him omitting the phrase “based on the evidence.” Defense counsel
correctly noted that he had not omitted that phrase and then finished his
explanation of the law. The prosecutor disagreed with defense counsel, but the
court remained silent. (RR27: 198-99).
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At this point, Zugelder interrupted and informed the court that he was
confused about whether the law permitted him to disregard the mitigation
special issue and assess life out of mercy. (RR27: 199). Thus, although defense
counsel had not misstated the law, he had left a false impression with the juror.
The court dispelled Zulgelder’s confusion, explaining that he could answer the
mitigation issue affirmatively based on mercy if that decision was based on some
evidence at trial. (RR27: 199-01). Defense counsel and Zugelder continued to
discuss the issue and, eventually, defense counsel acknowledged, “Maybe I didn’t
explain that too well to you the first time . . .” (RR27: 202-04).
In short, defense counsel did misstate the law initially and he did leave a
false impression with Zugelder. Thus, if Zugelder had reacted negatively to
defense counsel’s miscommunications, that would have been counsel’s fault.
Zugelder did not react negatively, however. He remained communicative and
engaged throughout the entirety of defense counsel’s questioning. He remarked
on counsel’s candor and, in return, was himself candid. He did not express anger
or even frustration. By all appearances, he was emotionally unaffected by the
exchange and was concerned only with understanding the law and answering
74
questions honestly. (RR27: 196-207). The trial court reasonably concluded the
same and properly denied this challenge.
Zugelder was qualified to sit on appellant’s jury, and this Court should
overrule Issue 10.
Issue 11: David Hornstein
Appellant exercised his eleventh peremptory challenge against
venireperson David Hornstein. (RR28: 116). At trial, appellant objected that
Hornstein would not give consideration to appellant’s mitigation evidence at
punishment. Specifically, he would not consider appellant’s character and
background, mental health, or voluntary intoxication. (RR28: 114-15). On appeal,
appellant claims the trial court abused its discretion in denying his challenge on
this ground. (Appellant’s Brief, p. 60-61).
Hornstein’s testimony shows that he would listen to any evidence appellant
presented on the second special issue, including background, intoxication, and
mental health evidence, but that he might not regard it as mitigating. (RR28: 53-
54, 61-63, 67, 95-112). This did not disqualify him from service because Hornstein
had no duty to treat any particular evidence as mitigating. Standefer, 59 S.W.3d at
181. The court properly denied this challenge.
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Hornstein was qualified to serve on appellant’s jury, and this Court should
overrule Issue 11.
Issue 12: Andrea Griffith
Appellant exercised his twelfth peremptory challenge against venireperson
Andrea Griffith. (RR30: 84). At trial, appellant objected that Griffith would not
consider his mitigation evidence at punishment. Specifically, she would not
consider genetics, background, upbringing, environment, or voluntary
intoxication. (RR30: 82-83). On appeal, appellant claims the trial court abused its
discretion in denying his challenge on this ground. (Appellant’s Brief, p. 60-61).
Griffith’s testimony shows that she would listen to any evidence appellant
presented on the second special issue, but that she might not regard it as
mitigating. (RR30: 58-59, 65, 70-76). This did not disqualify her from service
because she had no duty to treat any particular evidence as mitigating. Standefer,
59 S.W.3d at 181. The court properly denied this challenge.
Griffith was qualified to serve on appellant’s jury, and this Court should
overrule Issue 12.
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Issue 13: Bradford McCutheon
Appellant exercised his thirteenth peremptory strike against venireperson
Bradford McCutheon. (RR31: 112). At trial, appellant objected that McCutheon
would not be able to give fair and accurate consideration to the special issues.
(RR31: 111). On appeal, appellant contends the trial court abused its discretion in
denying this challenge. (Appellant’s Brief, pp. 64-65). The record supports the
court’s ruling.
Appellant argues that McCutheon’s questionnaire and testimony show that
he would automatically assess a death sentence if he found appellant guilty of
capital murder. (Appellant’s Brief, p. 65). Although McCutheon’s responses
showed that he strongly favored the death penalty, they also showed that he
would not automatically assess it. Throughout his testimony, McCutheon
repeatedly and expressly stated that he would not automatically answer the
special issues “yes” and “no” just because he found someone guilty of capital
murder. He also denied that he would let his feelings rather than the law control
his answers to the issues. He stated that he would follow the law, keep an open
mind to any evidence presented, and let the evidence determine his answers.
(RR31: 35, 46-48, 51, 53, 57, 59-60, 82-84,87-89, 102-03). He thought that the
77
process of answering the special issues made sense and was better than jurors
simply voting for a life or death sentence. (RR31: 61, 75-76). He was not death
prone and the court properly denied this challenge.
McCutheon was qualified to serve on appellant’s jury, and this Court should
overrule Issue 13.
Issue 14: Elvira Corpus
Appellant exercised his fourteenth peremptory against venireperson Elvira
Corpus. (RR3: 70). At trial, appellant objected that Corpus would automatically
assess a death sentence if she found him guilty of capital murder and that she
would not consider his mitigating evidence. (RR33: 68-69). On appeal, appellant
argues that the trial court abused its discretion in denying his challenge on both
these grounds. He also argues that the court should have excused Corpus because
she would not fairly assess the credibility of police officers. (Appellant’s Brief, pp.
66-68).
Because the third ground was not raised at trial, it is not preserved for
appellate review. Tex. R. App. P. 33.1(a). Nevertheless, appellant fails to
demonstrate that Corpus should have been excused for cause on any of the three
grounds argued on appeal.
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“Death Prone”
Appellant argues that Corpus’s questionnaire responses and testimony
both show that she would automatically assess a death sentence if she found
appellant guilty of capital murder. In particular, he cites responses in her
questionnaire that show she strongly supports the death penalty. He also cites
two excerpts from her testimony in which she appears to be saying that she
would automatically answer the mitigation issue “no.” (Corpus Questionnaire, pp.
2, 5-6; RR33: 55-56).
Corpus’s questionnaire showed that she strongly favored the death
penalty, but it also showed that she did not think it was appropriate in every case.
(Corpus Questionnaire, p. 1). Nowhere in her questionnaire did she state that she
thought a death sentence should be automatically assessed. (Corpus
Questionnaire).
The two testimonial excerpts appellant cites show only that Corpus was
confused by and misunderstood defense counsel’s questions at one point. The
prosecutor objected to the nature of defense counsel’s questions several times
during these excerpts, and Corpus expressed her confusion. (RR33: 58-59). Both
before and after those two exchanges, Corpus consistently maintained that she
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would not automatically answer either issue, that she would wait and listen to the
evidence, and that she would keep an open mind. (RR33: 22, 25, 27-30, 34-35, 40-
41, 49-50, 60-66). To the extent Corpus made any statements that reflected
otherwise, the conflict was the court’s to resolve, and it resolved it against
appellant. That determination was proper and is entitled to deference. Threadgill,
146 S.W.3d at 667.
Mitigation Bias
Appellant argues that Corpus would not give adequate consideration to his
mitigation evidence because she did not think evidence of background,
intoxication, or mental health excused crime. Corpus’s testimony shows that she
would listen to any evidence appellant presented on the second special issue, but
she might not regard it as mitigating. (RR33: 63-66). This did not disqualify her
from jury service because Corpus had no duty to treat any particular evidence as
mitigating. Standefer, 59 S.W.3d at 181. The court properly denied this challenge
as well.
Police Officer Credibility
Appellant contends Corpus was biased because she thought “police officers
were more likely to tell the truth.” (Appellant’s Brief, p. 67). Corpus did make that
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statement in her questionnaire. (Corpus Questionnaire, p. 5). But at trial, Corpus
agreed that all witnesses start out on equal footing and that she would wait and
listen to an officer’s testimony before determining his credibility. (RR33: 38-39).
Thus, Corpus held no bias against the law governing police officer testimony, and
the court properly overruled this challenge.
Corpus was qualified to serve on appellant’s jury, and this Court should
overrule Issue 14.
Issue 15: Temple Koestner
Appellant exercised his fifteenth peremptory strike against venireperson
Temple Koestner. (RR33: 157). At trial, appellant objected that Koestner would
automatically equate a guilty verdict with a death sentence and that she would
not consider his mitigation evidence. (RR33: 154-55). On appeal, appellant argues
that the trial court abused its discretion in denying his challenge on both these
grounds. He also argues that the court should have excused Koestner because she
would not fairly assess the credibility of police officers and because she would
disregard the court’s instructions. (Appellant’s Brief, pp. 66-68).
Because these two additional grounds were not raised at trial, they are not
preserved for appellate review. Tex. R. App. P. 33.1(a). Nevertheless, appellant
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fails to demonstrate that Koestner should have been excused for cause on any of
the four grounds argued on appeal.
“Death Prone”
Appellant contends Koestner’s questionnaire responses show that she was
prone to vote for death if she found him guilty of capital murder. (Appellant’s
Brief, pp. 70-71). In actuality, her questionnaire shows only that she strongly
favored the death penalty and that she thought it was an appropriate punishment
in some murder cases, not all. She considered the death penalty and life without
parole equally severe sentences. (Koestner Questionnaire, pp. 1, 3).
Koestner’s testimony also shows that she was not predisposed to assess a
death sentence. She confirmed her opinion that a life sentence was as severe as
the death penalty. She repeatedly stated that she would not automatically assess
a death sentence if she found him guilty. She said her feelings favoring the death
penalty would not prevent her from following the law. She would keep an open
mind to the evidence presented, and she would wait and apply the evidence to
the special issues. (RR33: 87, 92, 99, 108, 116-17, 132-37, 148-49). At one point
during questioning by defense counsel, Koestner became confused about
whether counsel was asking her about her feelings or her ability to follow the law
82
in assessing punishment. (RR33: 142-46). To the extent Koestner’s answers during
that exchange created any conflict in her testimony, that conflict was the court’s
to resolve and it resolved it against appellant. Threadgill, 146 S.W.3d at 667.
Given the totality of Koestner’s testimony, that decision was reasonable and
proper.
Mitigation Bias
Appellant argues that Koestner would not give adequate consideration to
his mitigation evidence because on her questionnaire, she stated that she did not
think evidence of genetics, environment, upbringing, and background should be
considered when determining punishment. (Koestner Questionnaire, p. 6). At
trial, however, Koestner testified that she would set aside those feelings and
consider the evidence in determining her answers to the special issues. (RR33:
149-52). At most, her testimony and questionnaire showed that she might not
regard such evidence as mitigating. This did not disqualify her from jury service
because Koestner had no duty to treat any particular evidence as mitigating.
Standefer, 59 S.W.3d at 181. The court properly denied this challenge as well.
83
Police Officer Credibility
Appellant contends Koestner was biased because in her questionnaire she
agreed that “police officers were more likely to tell the truth.” (Appellant’s Brief,
p. 71). In addition to that statement, Koestner added, “With cameras in the cars
now the officers have to tell the truth. The cameras don’t lie.” (Koestner
Questionnaire, p. 5). But at trial, Koestner agreed that all witnesses start out on
equal footing and that she would wait and listen to each witness’s testimony
before determining his credibility. (RR33: 118-19). Thus, Koestner held no bias
against the law governing police officer testimony, and the court properly
overruled this challenge.
Following Court’s Instructions
Appellant contends Koestner’s response to question 41 in her
questionnaire shows that she would not follow the court’s instructions on the
law. In question 41, Koestner agreed with the statement, “Regardless of what a
judge says the law is, jurors should do what they believe is the right thing.” She
also added, “The jury must do as instructed, but can give the judge what they
believe is right.” (Koestner Questionnaire, p. 7).
84
No one questioned Koestner about this statement during her testimony or
explained the law to her. Without first explaining to her that the law required
jurors to follow the court’s instructions, Koestner could not be deemed biased
against the law. Threadgill, 146 S.W.3d at 667. Moreover, the totality of
Koestner’s testimony shows that she understood and considered herself duty
bound to follow the law if selected for the jury. Thus, if appellant had challenged
Koestner on this basis at trial, denial of that challenge would have been proper.
Koestner was qualified to serve on appellant’s jury, and the Court should
overruled Issue 15.
Issue 16: Nancy Munn
Appellant exercised his sixteenth peremptory strike against venireperson
Nancy Munn. (RR36: 176-77). At trial, appellant objected that Munn was “death
prone,” would not hold the State to its burden of proof regarding a “technicality,”
and would presume police officers were more credible. (RR36: 170-74). On
appeal, appellant contends the trial court abused its discretion in denying the
foregoing challenges. (Appellant’s Brief, pp. 75-78). The record reflects otherwise.
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“Death Prone”
Appellant contends Munn so strongly favored the death penalty that she
would automatically answer the future dangerousness special issue affirmatively
if she found him guilty of capital murder. He claims she would also automatically
answer the second special issue “no” if she found him to be a future danger.
(Appellant’s Brief, pp. 74-78).
Although Munn’s questionnaire and testimony both show her strong
support for the death penalty, her testimony shows that her feelings would not
affect her ability to follow the law and assess a sentence based on the law and the
evidence. Munn stated that she believed there could be some cases where life
without parole would be an appropriate sentence. (RR36: 112). She also stated
that she believed some people could be rehabilitated. (RR36: 113). During
questioning by both sides, she repeatedly stated that she would not automatically
answer either special issue, that she thought the special issues were fair, and that
she would consider any evidence offered in determining her answers to the
issues. She also stated that she believed there could be evidence that would
convince her appellant deserved a life sentence. (RR36: 117, 129-30, 134-35, 143-
44, 150-62).
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Appellant argues that some of Munn’s answers were equivocal,
demonstrating an uncertainty about her ability to follow the law. Any
equivocation in Munn’s answers was for the trial court to resolve, and it was
resolved against appellant. That determination is entitled to deference and is
supported by the totality of Munn’s testimony. Threadgill, 146 S.W.3d at 667.
State’s Burden of Proof
Appellant argues that Munn could not hold the State to its burden of proof
on the issue of guilt because she would have difficulty acquitting someone based
on the State’s failure to prove a “technicality,” such as venue in Dallas County.
(Appellant’s Brief, p. 77). Munn’s testimony reflects, however, that she
understood the State’s burden and her duty if the State failed to meet it. (RR36: ).
When presented with the scenario of the State failing to prove venue, Munn
stated, “It would have to be that he was innocent because it had to be in Dallas
County.” (RR36: 124). During defense questioning, Munn expressed some distress
at being put in the position of acquitting in that scenario. Still, she stated that she
believed she could follow the law and acquit. (RR36: 145-47). The court properly
found no bias on this basis.
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Police Officer Credibility
Appellant argues that Munn would give police officers more credibility than
other witnesses. (Appellant’s Brief, p. 76). The record reflects the opposite. In her
questionnaire, Munn stated that she believed police officers are more likely to tell
the truth than the average person. But she also wrote, “I think they are people so
they make mistakes, however & also I think that suit gives some people a
perceived power.” (Munn Questionnaire, p. 5). Furthermore, during her
testimony, Munn stated that she would treat all witnesses the same, that she did
not believe everyone tells the truth all of the time, and that police officers are
human. She also stated that she would not automatically find an officer credible,
but would wait and listen to their testimony to judge their credibility. (RR36: 162-
63). The court properly concluded that Munn held no bias in favor of a police
officer’s testimony.
Munn was qualified to serve on appellant’s jury, and this Court should
overrule Issue 16.
Issue 17: Ernest Hand
Appellant requested additional strike to eliminate venireperson Ernest
Hand. The trial court denied the request, having already given appellant two
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additional strikes.3 (RR39: 90-91). At trial, appellant objected that Hand was
“death prone.” (RR39: 89-90). On appeal, appellant contends the trial court
abused its discretion in denying this challenge. He also argues that the court
should have excused Hand because he would not fairly assess the credibility of
police officers and would not consider appellant’s mitigation evidence.
(Appellant’s Brief, pp. 80-81). Because the two additional grounds were not raised
at trial, they are not preserved for appellate review. Tex. R. App. P. 33.1(a).
Nevertheless, appellant fails to demonstrate that Hand should have been excused
for cause on any of the three grounds argued on appeal.
“Death Prone”
Appellant argues that Hand was “death prone” because he strongly favored
the death penalty. In support of this contention, appellant cites Hand’s
questionnaire in which he stated that he thought the death penalty was used to
seldom and that it took too long to administer. Also, he stated that he thought
the justice system was too lenient, slow, and inconsistent. (Appellant’s Brief, p.
80).
3
Appellant exercised his second extra strike (strike 17) against venireperson Robin Schwartz
(RR37: 85). He challenged Schwartz for cause at trial, but does not complain about the denial of
that challenge on appeal. (RR37: 81-83).
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Although Hand did strongly support the death penalty, his questionnaire
reflects that he did not think it should be applied in all murder cases.
Furthermore, during his testimony, Hand stated that he believed some murderers
deserve a life sentence. He also testified that he would not automatically assess a
death sentence. He would wait and listen to the evidence and apply it to the
special issues. (RR39: 27, 32, 37, 43-46, 64-65, 75-78, 83). The trial court properly
denied this challenge.
Police Officer Credibility
Appellant argues that Hand was biased toward police officers. (Appellant’s
Brief, p. 80). In support of this argument, appellant cites Hand’s questionnaire in
which he stated that he agreed police officers were more likely to tell the truth
than the average person. According to Hand, “They are more accountable.” (Hand
Questionnaire, p. 5).
On their own, Hand’s statements in his questionnaire do not evince a bias
in favor of officers. His statements reflect only that he expects officers to be
truthful, not that he will automatically find them more credible. Furthermore,
Hand testified that he understood he must treat all witnesses, including officers,
alike, and wait until they testified to assess their credibility. (RR39: 44-46). Thus, if
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appellant had challenged Hand on this basis at trial, denial of that challenge
would have been proper.
Mitigation Bias
Appellant argues that Hand would not give adequate consideration to his
mitigation evidence because on her questionnaire, he stated that he did not think
evidence of genetics, environment, upbringing, and background should be
considered when determining punishment. In addition, he wrote that “there is no
circumstance that gives a person the right to murder except in personal danger.”
(Hand Questionnaire, p. 6).
At trial, Hand testified that he would listen to any evidence presented on
the special issues. (RR39: 43, 64-65, 75). At most, Hand’s questionnaire showed
that he might not regard evidence of background, environment, etc. as mitigating.
This did not disqualify him from jury service. Hand had no duty to treat any
particular evidence as mitigating. Standefer, 59 S.W.3d at 181. Thus, if appellant
had challenged Hand on this basis at trial, denial of that challenge would have
been proper as well.
Hand was qualified to serve on appellant’s jury, and this Court should
overrule Issue 17.
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Issue 18: Elizabeth McDaniel
Appellant challenged McDaniel on the basis that she was death prone and
would automatically assess a death sentence if she found the appellant guilty of
capital murder. Appellant argued that he did not believe she would give adequate
consideration to special issue number one. He also argued that, with regard to
special issue number two, she would require him to testify and show remorse in
violation of his Fifth Amendment rights. (Appellant’s Brief, pp. 81-83).
Nothing in McDaniel’s questionnaire or testimony supports appellant’s
contentions. McDaniel’s questionnaire showed that she strongly favored the
death penalty, but it also showed that she did not think it was appropriate in
every case. (McDaniel Questionnaire, p. 1). Nowhere in her questionnaire did she
state that she thought a death sentence should be automatically assessed.
(McDaniel Questionnaire). Throughout her testimony, McDaniel repeatedly
affirmed that she would not automatically vote for death if she found appellant
guilty and that she would wait and consider the evidence presented at
punishment in answering the special issues. (RR39: 134, 142-43, 156-58, 163,
165). She affirmed her understanding of special issue number one and that the
jury could not answer that issue “yes” unless the State met its burden of proof.
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(RR39: 134-38, 160-62). She affirmed that if she heard sufficiently mitigating
evidence she could assess a life sentence. (RR39: 141). She stated her
understanding that a defendant does not have testify and confirmed that she
would follow the court’s instruction not to consider a defendant’s failure to testify
for any purpose during her deliberation. (RR39: 144, 166).
McDaniel was qualified to sit on the jury, and this Court should overrule
Issue 18.
Issue 19: Arleen Jimenez
Appellant challenged Jimenez on the basis that she would automatically
assess the death penalty if she found the defendant guilty of capital murder. He
also challenged her on the basis that she viewed the death penalty as a deterrent
and was not used enough. (Appellant’s Brief, pp. 83-85).
Jimenez’s questionnaire shows only that she strongly favored the death
penalty and that she thought it was an appropriate punishment in some murder
cases, not all. She considered the death penalty and life without parole equally
severe sentences. (Jimenez Questionnaire, pp. 1-2). Further, Jimenez’s testimony
shows that she was not predisposed to assess a death sentence. Jimenez stated
that she could follow the law and not automatically give someone a death
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sentence just because they have been found guilty. (RR40: 39-40, 48, 56, 60). She
affirmed that she would keep an open mind and wait to hear all the evidence
before she answered special issues. (RR40: 42, 48, 57-60, 62, 71-72). Appellant
fails to demonstrate that Jimenez had a bias against him or the law in any way.
Jimenez was qualified to sit on the jury, and this Court should overrule
Issue 19.
Issue 20: Dan Blanks
In his final issue, appellant complains that the trial court improperly denied
his challenge for cause against Dan Blanks. However, Mr. Blanks was the alternate
and did not participate in jury deliberations. As such, appellant cannot show he
was harmed by the trial court’s ruling on his challenge for cause against Blanks.
In any event, appellant’s claims are without merit. Appellant challenged
Blanks on the basis that he equated the death penalty with a guilty verdict. On
appeal, appellant also argues that Blanks thought police officers were more likely
to tell the truth that the average person. (Appellant’s Brief, pp. 84-85). Because
this additional ground was not raised at trial, it is not preserved for appellate
review. Tex. R. App. P. 33.1.
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Blanks’ questionnaire showed that he strongly favored the death penalty,
but it also showed that he did not think it was appropriate in every case. (Blanks
Questionnaire, p. 1). Nowhere in his questionnaire did he state that he thought a
death sentence should be automatically assessed. (Blanks Questionnaire). During
his testimony, Blanks affirmed that he would not automatically vote for death if
he found appellant guilty and that he would wait and consider all the evidence
before making any decision on how to answer the special issues. (RR41: 36-37, 48-
49, 53, 59-60, 64). He also affirmed that he would judge the credibility of the
witness based on their testimony, not before he or she testifies. (RR41: 38-39). As
such, Blanks was qualified to sit on the jury, and this Court should overrule Issue
20.
Conclusion
Appellant has not shown even one erroneous ruling on his challenges for
cause, much less three erroneous rulings. Therefore, he has not shown this Court
that he was denied the use of a statutorily provided peremptory strike. Issues 1
through 20 should be denied.
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Issues 21 and 22: Constitutional Right To Fair And Impartial Jury
In Issues 21 and 22, appellant contends the trial court’s denial of his
challenges for cause deprived him of a lawfully constituted jury resulting in
violations of his rights under the state and federal constitutions and under article
35.16 of the Texas Code of Criminal Procedure. (Appellant’s Brief, pp. 88-89).
Appellant’s contentions are meritless. He has failed to show the trial court’s
rulings on any of the challenges resulted in the seating of a juror who was biased
or prejudiced. If an appellant does not present record evidence demonstrating
that the trial court’s error deprived him of a jury comprised of legally qualified
jurors, he has suffered no harm and the reviewing court should presume the
jurors are qualified. See Gray v. State, 233 S.W.3d 295, 301 (Tex. Crim. App. 2007).
Therefore, this Court should overrule Issues 21 and 22.
Issues 23-26: Admission Of Autopsy Photographs
In Issues 23 through 26, appellant contends that the trial court erred in
overruling his Rule 403 objections to State’s Exhibits 4-9, 11-23 and 77-78,
autopsy photographs of the victims. (Appellant’s Brief, pp. 90-97). He does not
address the photographs individually, but generally contends they were excessive.
He also complains they were unfairly prejudicial because there were no
96
controverted issues as to cause of death. His contentions are without merit and
should be overruled.
Applicable Law
The admissibility of a photograph is within the sound discretion of the trial
judge. Paredes v. State, 129 S.W.3d 530, 539 (Tex. Crim. App. 2004); Williams v.
State, 958 S.W.2d 186, 195 (Tex. Crim. App. 1997). Generally, a photograph is
admissible if verbal testimony about the subject of the photographs is also
admissible. Id.; Gallo v. State, 239 S.W.3d 757, 762 (Tex. Crim. App. 2007) (holding
that, if verbal testimony is relevant, photographs of the same are also relevant).
More specifically, a visual image of the injuries appellant inflicted on the victim is
evidence that is relevant to the jury’s determination and is admissible. Gallo, 239
S.W.3d at 762; Tex. R. Evid. 401. The fact that the jury also heard testimony
regarding the injuries depicted does not reduce the relevance of the visual
depiction. Id.
Rule 403, on the other hand, allows for the exclusion of otherwise relevant
evidence when its probative value is substantially outweighed by the danger of
unfair prejudice, confusion of the issues, or misleading the jury, or by
considerations of undue delay, or needless presentation of cumulative evidence.
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See Tex. R. Evid. 403. Rule 403 favors the admission of relevant evidence and
presumes that relevant evidence will be more probative than prejudicial.
Williams, 958 S.W.2d at 196. A court may consider several factors in determining
whether the probative value of photographs is substantially outweighed by the
danger of unfair prejudice, including but not limited to: the number of exhibits
offered, their gruesomeness, their detail, their size, whether they are black and
white or color, whether they are close-up, and whether the body depicted is
naked or clothed. Id. A reviewing court must also consider the availability of other
means of proof and the circumstances unique to each individual case. Id.
Issues 23 and 24: The Trial Court Did Not Abuse its Discretion by
Overruling Appellant’s Objections to State’s Exhibits 4-9 and 11-23
In a pretrial hearing held outside the presence of the jury, appellant
requested that the trial court make a threshold determination of the admissibility
of autopsy photographs of the victims. (RR42: 28-30). He argued that because the
defense was conceding guilt and there was no issue with regard to the cause of
death of the victims, no autopsy photographs should be admitted because they
have no probative value and are only being offered to inflame the jury. (RR42: 28-
34). The State notified the trial court that it was in possession of over 170
photographs, some of them quite graphic, but that they had met with the medical
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examiner and selected only the ones necessary to aid her in explaining the injuries
sustained by the children. (RR42: 30, 34, 39). The trial court examined the thirteen
photographs of Elijah Muhammad and six photographs of Naim Muhammad that
the State planned to offer. (RR42: 34-38; State’s Exhibits 4-9, 11-23). The trial
court found the probative value the photographs outweighed the prejudicial
effect and overruled appellant’s objections. (RR42: 36-38).
All of the photographs admitted were in color and were 8 ½ by 11 inches.
State’s Exhibits 11-23 are autopsy photographs of Elijah. Exhibits 11 and 12 depict
how Elijah appeared when he arrived at the medical examiner’s office and the
clothes he was wearing. Additionally, Dr. Dyer used exhibit 11 to explain the
process of postmortem purging, and exhibit 12 to explain their standard practice
for collecting fingernail clippings. (RR42: 122-23; State’s Exhibits 11-12). She
explained that after the “as-is” photographs are taken of the victim, the body is
cleaned up for the autopsy and re-photographed, which is what is depicted in
exhibit 13. (RR42: 124; State’s Exhibit 13).
Dr. Dyer used exhibits 14-21 to describe the various injuries she observed
during the external examination of Elijah. Although Elijah is not clothed, all of the
photographs are close-ups of specific parts of his body. The photographs are not
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repetitious and each depicts a different area of injury. Specifically, exhibits 14 and
15 depict the facial injuries he sustained; exhibit 16 depicts a linear abrasion on
his back; exhibit 17 depicts abrasions on the outside of the leg; exhibit 18 depicts
abrasions and a blister on the sole of his left foot; exhibit 19 depicts abrasions on
the top of the right foot; exhibit 20 depicts abrasions on the back side of his right
leg; and exhibit 21 depicts an abrasion on his wrist. (RR42: 124-26; State’s Exhibits
14-21). Dr. Dyer used exhibits 22 and 23 to describe the injuries she observed
during the internal examination of Elijah. Exhibit 22 depicts the bruising on the
inside of his scalp and exhibit 23 depicts the dirt and debris that were found in his
airway. (RR42: 126-28; State’s Exhibits 22-23).
State’s Exhibits 4-9, autopsy photographs of Naim, were used in the same
manner as the photographs of Elijah contained in State’s Exhibits 11-23. State’s
Exhibit 4 is the “as-is” photograph of Naim – it depicts the clothes he was wearing
and how he presented when he arrived at the medical examiner’s office. (RR42:
135; State’s Exhibit 4). It also depicts white foam coming from his nose, the result
of postmortem purging. (RR42: 134-36; State’s Exhibit 4). Exhibit 5 shows how
Naim appeared after the debris was removed and he was cleaned by the medical
examiner. (RR42: 136; State’s Exhibit 5). Exhibits 6-8 are close-ups of specific parts
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of Naim’s body, each depicting a different area of injury observed during the
external examination. Specifically, exhibits 6 and 7 depict abrasions on the side of
the face and forehead, and exhibit 8 depicts abrasions on the back of hand.
(RR42: 136-37; State’s Exhibits 6-8). Exhibit 9, taken during the internal
examination, depicts the bruising he sustained on the inside of his scalp. (RR42:
137-38; State’s Exhibit 9).
The medical examiner was entitled to testify to the manner of death, the
cause of death, and the number and types of injuries sustained by each victim,
issues to which these photographs were relevant. The fact that appellant did not
contest the manner of death does not render the photos irrelevant. See Long v.
State, 823 S.W.2d 259, 274, 275 (Tex. Crim. App. 1991) (holding that testimony
and photographs as to manner, cause, and time of death are relevant to capital
murder prosecution even though defendant pled guilty).
Mindful of the potential for unfair prejudice, the State took great care to
reduce the number of autopsy photographs and utilized only the ones necessary
for Dr. Dyer’s testimony. Furthermore, in the realm of capital murder victim
photos, the pictures are nothing close to gruesome. See, e.g., Gallo, 239 S.W.3d at
763-64 (upholding admission of twenty-three photographs of 3 year-old victim
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including photographs of vaginal injuries, internal injuries including close-ups of
cracked ribs, a picture in which the rib had been removed from the body, various
views of the underside of the victim’s scalp and the victim’s skull, and one picture
of the victim’s brain). Sixteen of the nineteen photos admitted in this case are
pre-autopsy and show only external abrasions inflicted during the offense. And
while exhibits 9, 22 and 23 are slightly more graphic, the photographs show
bruising or other damage that is attributable to appellant’s actions but is not
visible externally, thereby making the photographs highly relevant to the manner
of death. See Ripkowski v. State, 61 S.W.3d 378, 392-93 (Tex. Crim. App. 2001).
The trial court did not abuse its discretion in determining that the probative
value of these photographs was not substantially outweighed by unfair prejudice.
Accordingly, Issues 23 and 24 are without merit and should be overruled.
Issues 25 and 26: The Trial Court Did Not Abuse its Discretion by
Overruling Appellant’s Objections to State’s Exhibits 77 and 78
At a hearing outside the presence of the jury, appellant made a Rule 403
objection to State’s Exhibits 77 and 78, autopsy identification photographs of the
children. (RR43: 133). Appellant argued that, in light of their concession of guilt,
there was no probative value in admitting the photographs and they were only
being offered to provoke a visceral response from the mother on the witness
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stand. (RR43: 133-35). The State argued that, despite any conciliatory statements
made by appellant during voir dire and the guilt phase, he did not plead guilty and
they are still required to prove the identity of the decedents beyond a reasonable
doubt. (RR43: 135). The trial court examined the two photographs and overruled
appellant’s objection. (RR43: 136-41).
State’s Exhibit 77 is an autopsy identification photo of Elijah. He is shown
unclothed from the chest up, lying on a table. The medical examiner’s placard
showing autopsy identification number IFS-11-12022 is placed across his chest.
(State’s Exhibit 77). State’s Exhibit 78 is an autopsy identification photo of Naim.
He is also shown unclothed from the chest up, lying on a table, and a placard with
autopsy identification number IFS-11-12023 is across his chest. (State’s Exhibit
78). At the conclusion of the direct examination of Kametra, the State showed her
exhibits 77 and 78. (RR43: 141). Kametra identified the individual in exhibit 77 as
Elijah and the individual in exhibit 78 as Naim. (RR43: 141). There was no outburst
or visceral response by Kametra when she viewed the photographs. (RR43: 141).
Kametra’s identification of the individuals in State’s Exhibits 77 and 78
linked Dr. Dyer’s autopsy reports to the named victims. (RR43: 141-42; State’s
Exhibits 10, 24, 77-78). As such, they were highly relevant. These exhibits are not
103
particularly gruesome or detailed, are not enhanced in any way, and portray no
more than the condition of the victims due to the injuries inflicted by appellant.
As such, the trial court did not abuse its discretion in holding that the probative
value of the photographs outweighed the danger of unfair prejudice. See, e.g.,
Young v. State, 283 S.W.3d 854, 875 (Tex. Crim. App. 2009) (trial court did not
abuse its discretion in determining that an autopsy identification photograph
used to tie the victim to his assigned case number was relevant and that its
probative value outweighed the danger of unfair prejudice).
Issues 25 and 26 are without merit and should be overruled.
Issues 27 and 41: Jury Argument
In Issues 27 and 41, appellant contends that the trial court erred in denying
his objections to the State’s closing argument during both the guilt-innocence and
punishment phases of trial. (Appellant’s Brief, pp. 97-99, 124-25). His contentions
are without merit and should be overruled.
Applicable Law
The purpose of closing argument is to facilitate the jury’s proper analysis of
the evidence presented at trial so that it may arrive at a just and reasonable
conclusion based on the evidence alone and not on any fact not admitted into
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evidence. Campbell v. State, 610 S.W.2d 754, 756 (Tex. Crim. App. [Panel Op.]
1980). Proper jury argument generally falls within one of four areas: (1)
summation of the evidence, (2) reasonable deduction from the evidence, (3)
answer to an argument of opposing counsel, and (4) plea for law enforcement.
Freeman v. State, 340 S.W.3d 717, 727 (Tex. Crim. App. 2011). Counsel is
generally afforded wide latitude in drawing inferences from the record, as long as
the inferences are reasonable and offered in good faith. Coble v. State, 871
S.W.2d 192, 205 (Tex. Crim. App. 1993) (en banc).
Even when an argument exceeds the permissible bounds of these approved
areas, such will not constitute reversible error unless, in light of the record as a
whole, the argument is extreme or manifestly improper, violative of a mandatory
statute, or injects new facts harmful to the accused into the trial proceeding.
Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000). The remarks must
have been a willful and calculated effort on the part of the State to deprive
appellant of a fair and impartial trial. Id. An instruction to disregard, which the
jury is presumed to follow, will generally cure the improper argument. Id.
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Closing Argument at Guilt-Innocence
In Issue 27, appellant contends that the trial court erred in overruling his
objection to the State arguing outside the scope of the guilt-innocence stage of
trial. The complained-of argument went as follows:
MS. SWEET: He told you what he did. He took those two little boys
down to the nasty, smelly overgrown creek, and he carried one
down, and the other one he was holding a hand. The little boy was
reaching out and grabbing Daddy’s shirt. Did they know what Daddy
was going to do? They did because they were crying, Daddy, Daddy,
we love you. We love you, Daddy. They knew they were going to die.
He had already told them. What did he tell them? Your mama don't
want us anymore. Your mama doesn’t want us. That’s what he told
them. What better way to get back at her than to kill those two kids?
That’s why he did it. He did it to get back at her. He did it to make
sure that no other man would ever show them any real love, so no
other man would be a real father like he never was.
MR. JOHNSON: Excuse me, Judge. I’m going on object to this
argument, the entirety of this argument. It is outside the scope of the
guilt/innocence issue before this jury, and I would ask the Court to
instruct the prosecutor to limit her remarks to the evidence that goes
to the proof or denial of whether or not the Defendant committed
the offense.
THE COURT: Ms. Sweet, just argue the evidence and the law. Thank
you.
MR. JOHNSON: And, Judge, I’m going to ask that the instruction be
limited further to argue the evidence and the law as it applies to
whether or not the Defendant committed the offense.
THE COURT: I have already instructed the prosecutor. Argue the
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evidence and the law. Proceed, Ms. Sweet.
MS. SWEET: Y’all can remember the evidence that you heard
yesterday, Monday. He took those kids down there and he knew
what he was going do, and he told them to sit down. What did he tell
them? Put your head down in the water and act like you are
swimming. And that’s when he took his hands and he put them on
each kid and he held their head under the water. Can you imagine
what that must have felt like? What were those kids thinking?
MR. JOHNSON: Judge, again, I'm going to object again. This entire
argument is now outside the scope of guilt/innocence and we're
going to object to it at this phase of the trial.
THE COURT: I will overrule the objection.
MS. SWEET: That's how he killed them, in a dirty, nasty creek. That's
where their life ended. It's the first day of school for Naim, but it was
the last day of his life. So these two little precious boys, two little
precious innocent babies, they were crying for their mother. That
was in evidence. They were crying for mom. They are crying for mom
to help them. And this is how they end up. This is his handiwork right
here. That is how they ended up. That's what he did to them. That's
how much they meant to him and then he left them there like
garbage.
(RR44: 25-28).
Appellant’s complaint was not preserved and is not properly briefed
To preserve a complaint regarding improper jury argument for appellate
review, a party must make a timely request, objection, or motion with sufficient
specificity to apprise the trial court of the complaint. See Tex. R. App. P. 33.1(a);
107
Estrada v. State, 313 S.W.3d 274, 303 (Tex. Crim. App. 2010). Trial counsel failed
to explain how the argument fell outside the scope of the guilt-innocence portion
of the trial, nor is it apparent from the face of the argument. Consequently, trial
counsel’s objection lacked sufficient specificity to make the trial court aware of
the exact nature of his complaint, and therefore, has failed to preserve this issue
for review. See Tex. R. App. P. 33.1(a) .
Additionally, appellant has failed to adequately brief this issue on appeal.
Appellant claims that the prosecutor’s remarks concerning what the victims felt
when their heads were held under water was improper because it was outside of
the scope of guilt-innocence because it injected facts not in the record, was
“maudlin” and “in poor taste,” and its only purpose was to begin to create
prejudice toward appellant. (Appellant’s Brief, pp. 98-99). However, appellant
fails to cite any case law that supports his assertion that the prosecutor’s
argument was improper. Rule 38.1 of the Texas Rules of Appellate Procedure
requires that a brief contain a clear and concise argument for the contentions
made with appropriate citations to authorities and to the record. See Tex. R. App.
P. 38.1(i). Because appellant has wholly failed to make a clear argument and cite
108
appropriate authorities, his argument is inadequately briefed and should be
summarily denied.
The trial court did not err by overruling appellant’s objection
Should this Court consider this issue, despite counsel’s failure to properly
preserve and brief the issue, the record reflects that the trial court properly
overruled appellant’s objection. The complained-of argument fell within the
permissible areas of argument because the remarks were a proper summation
and called for reasonable deductions from the evidence presented at trial.
The evidence presented at trial indicated that appellant abducted Kametra,
Naim, and Elijah as the three of them walked to Naim’s school. As appellant then
drove them through the neighborhood, he threatened Kametra and the boys.
When appellant stopped at a red light, Kametra saw a constable parked nearby
and jumped out of the car, to get the constable’s help. Appellant, who had
warned Kametra not to jump out of the car, sped off with Naim and Elijah. Elijah,
who was in the backseat of the car with Naim, began to cry and ask for his
mother. Appellant told both boys that she did not love them. Appellant then
drove to a secluded creek. Because Elijah did not have shoes on, he carried Elijah
down to the creek bed, while Naim walked beside them, holding on to appellant’s
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shirt. Next, appellant forced them to sit down in the water with their backs to
him. Both boys were crying; Elijah asking for his mother and Naim telling
appellant that he loved him. Appellant then forced both boys to place their heads
under the water, telling them to pretend like they were swimming, and held their
heads under the water until both boys stopped moving.
Accordingly, the prosecutor’s remarks merely asked the jury to use their
experience and knowledge to deduce from the evidence the level of confusion
and fear the boys felt as a result of the appellant’s actions. Such argument was
permissible and appropriate. See Palermo v. State, 992 S.W.2d 691, 696 (Tex.
App.—Houston [1st Dist.] 1999, no pet.) (stating prosecutor may ask jurors to
imagine what a victim experienced during a crime as long as the argument is
based on the evidence and reasonable deductions from the evidence, rather than
sheer conjecture); see also, e.g., Torres v. State, 92 S.W.3d 911, 920-22 (Tex.
App.—Houston *14th Dist.+ 2002, pet. ref’d) (finding prosecutor’s argument
stating “I want you to close your eyes and think of how that young man felt”
asked the jury to make reasonable deductions from the evidence regarding the
degree of terror and pain experienced by the complainant shortly before his
death and was permissible); Linder v. State, 828 S.W.2d 290, 303 (Tex. App.—
110
Houston [1st Dist.] 1992, pet. ref’d) (determining prosecutor’s argument asking
“Can you imagine what it was like to be that woman?” asking jurors to imagine
what a victim of a burglary and attempted sexual assault to imagine what it was
like to be the victim was a legitimate appeal to the jury to apply their general
knowledge and experience to the evidence presented at trial). Consequently, the
trial court did not err in overruling appellant’s objection to this argument.
Error, if any, was harmless
Nevertheless, even if this Court were to find that the State’s argument was
improper, any error was harmless.
Improper argument is non-constitutional error, and non-constitutional
error that does not affect a defendant’s substantial rights must be disregarded.
Brown v. State, 270 S.W.3d 564, 572 (Tex. Crim. App. 2008); Tex. R. App. P.
44.2(b). To determine whether an appellant’s substantial rights were affected, an
appellate court balances three factors: (1) the severity of the misconduct (i.e., the
prejudicial effect), (2) any curative measures, and (3) the certainty of conviction
absent the misconduct. See Brown, 270 S.W.3d at 572-73. In evaluating the
severity of the misconduct, the reviewing court must assess whether the
argument injected new and harmful facts or was, in light of the entire argument,
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extreme or manifestly unjust and willfully calculated to deprive appellant of a fair
and impartial trial. Id. at 573.
Viewing the State’s closing argument as a whole, the record does not
demonstrate that there was a willful, calculated effort to deprive the appellant of
a fair and impartial trial. The argument made no reference to the punishment
phase or special issues and did not inject new facts into the record. The
prosecutor was simply asking the jury to apply their general knowledge and
experience to the evidence that was properly before them and imagine what was
going through the minds of the victims during the murders. The details in the
argument were summations and reasonable deductions from the evidence, most
of which came from appellant’s statement to the police. While the trial court did
not take any curative measures, this was because the judge overruled the
appellant’s objection. Finally, the evidence of appellant’s guilt was overwhelming.
Appellant gave a voluntary statement to the police in which he confessed to the
murders. Appellant did not present any evidence during the guilt-innocence
phase of the trial and, in fact, conceded guilt during his closing argument.
Furthermore, witness testimony corroborated appellant’s confession, as did the
forensic evidence establishing the cause of death of both victims. Based on the
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evidence presented, the jury most certainly would have convicted appellant
regardless of the prosecutor’s statements. Thus, any error in the prosecutor’s
argument did not affect appellant’s substantial rights. See Brown, 270 S.W.3d at
572; Tex. R. App. P. 44.2(b).
Based on the foregoing, Issue 27 is without merit and should be overruled.
Closing Argument at Punishment
In Issue 41, appellant contends that the trial court erred in overruling his
objection to the State’s closing argument during the punishment phase of trial.
During closing argument at the punishment phase, defense counsel made
the following argument:
MR. JOHSNON: The evidence in this case from Kametra, this history
of domestic violence, folks, all I can tell you is that, by all accounts,
we’ve got a situation where now Kametra comes in and I agree with
what was said earlier, she hates the Defendant for what he did, and
reasonably so. And unlike what she told us when I met with her and
my consultants, now the violence has escalated, it is more of it.
You know, that’s what happens in courtrooms, folks. What we really
know is that about the time when Rasool is locked up for that
incident with his sister, we know that she is running around on him,
and she is writing him letters, and then we know that then while he is
still incarcerated, she gets caught for leaving her kids locked up in a
car outside while she is off galavanting, and we know now that she
ran off and she is now this sophisticated prostitute. And think about
this, folks. And like I said, Kametra is not on trial. But they are
wanting you to think that she is only this victim because it fits well
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into their theory, but she has told you, folks, that she is out there and
she is running around with a guy twice her age. She has got the
wherewithal to start running the internet prostitution scheme. She
said it is her idea. She has got a $3,000 a month drug habit. $3,000 a
month. And she tells you she had no way to get away from the
Defendant.
(RR50: 72-73). In rebuttal, the State made the following complained-of argument:
MS. KEMP: Now, I asked Kametra. Do you know who Maya Angelou
is? You all know who she is, Poet Laureate. You know Maya Angelou
was raped when she was --
MR. JOHNSON: Judge, I'm going to object. We're outside the record.
MS. KEMP: This is argument.
MR. JOHNSON: I know. We're still arguing the record.
MS. KEMP: Maya Angelou was raped when she was 8 years old.
MR. JOHNSON: Judge, I'm going to ask for a ruling on my objection.
THE COURT: I didn't hear an objection. Sorry.
MR. JOHNSON: I objected. I said, we’re outside of the record.
THE COURT: Okay. I will overrule the objection.
MS. KEMP: Maya Angelou had a child when she was 17 years old.
Maya Angelou was a full-grown madam, running a brothel.
MR. JOHNSON: Judge, I'm going to ask for an opportunity to reopen
my argument and start talking about things than there is no evidence
also, if we're going to allow this.
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THE COURT: All right.
MS. KEMP: Kametra --
THE COURT: That’s denied. Go ahead.
MS. KEMP: Kametra --
MR. JOHNSON: I'm going to object to the argument that’s continued
to admission of evidence not before this jury.
THE COURT: This is argument.
MS. KEMP: This is argument, sir.
MR. JOHNSON: I understand, Judge. She can’t argue the life history of
people.
THE COURT: Argue the evidence and the law.
MS. KEMP: This is evidence. You have a young lady who was raped
when she was 8. She had a child when she was 17. She decided to be
a prostitute rather than be with Mr. Muhammad, to provide for her
kids. One way or another, he is no longer in her life, and like Maya
Angelo, she can go on and be anything she wants to, if she decides.
(RR50: 84-86).
On appeal, appellant argues that the remarks about Maya Angelou’s life
history were outside of the record and therefore, impermissible. Appellant
contends that the statements were calculated to inflame the minds of the jury
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and prejudice the appellant such that the jury would be certain to return a verdict
of death.
The trial court did not err by overruling appellant’s objection
The record reflects that the trial court properly overruled appellant’s
objection because the argument was made in response to the argument of
defense counsel and also constituted a summation and reasonable deduction
from the evidence.
During his closing argument, defense counsel attacked the credibility and
character of State’s witness Kametra Sampson, stating that the instances of
domestic violence she testified to had “escalated” from those that she had
described to defense counsel in a previous meeting. Counsel described Kametra
as a “sophisticated prostitute” running an “internet prostitution scheme” with a
$3,000 a month drug habit, and that she was only being presented as a victim
because it fit the State’s theory. (RR50: 72-73). The State’s argument challenged
this characterization of Kametra by comparing her to another reputable and well-
known woman with a similar background. The State’s comparison was based on
Kametra’s testimony and reasonable deductions from that testimony.
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The testimony presented at trial revealed that Kametra was raped by her
mother’s boyfriend when she was eight years old. She began a sexual relationship
with the appellant when she was just fifteen and appellant was twenty-five.
Kametra had her first child when she was seventeen and had two more children in
the next few years. Kametra testified that she endured violent beatings at the
hands of the appellant throughout their relationship, and eventually resorted to
prostitution in order to provide for herself and her children so that she did not
have to remain in an abusive relationship with the appellant. Kametra also
admitted to an expensive drug habit. However, she also testified that she was no
longer a prostitute and had sought treatment for her drug addiction in order to
improve her life.
Accordingly, the prosecutor appropriately analogized Kametra’s life to
Maya Angelou. It was a reasonable deduction from the evidence that Kametra,
like Angelou, could change her life. While appellant is correct that there was no
evidence before the jury specifically concerning Maya Angelou’s life, Angelou is a
public figure whose life history is common knowledge. Arguing facts that
are common knowledge is an exception to the prohibition against arguing facts
outside the record. See Nenno v. State, 970 S.W.2d 549, 559 (Tex. Crim. App.
117
1998), overruled on other grounds by State v. Terrazas, 4 S.W.3d 720 (Tex. Crim.
App. 1999); Carter v. State, 614 S.W.2d 821, 823 (Tex. Crim. App. [Panel Op.]
1981). Therefore, the trial court did not err in overruling appellant’s objection.
Error, if any, was harmless
Even if this Court were to find that the State’s argument was improper, any
error was harmless. As previously noted, improper jury argument is non-
constitutional error that must be disregarded unless it affects the defendant’s
substantial rights. Brown, 270 S.W.3d at 572; Tex. R. App. P. 44.2(b).
Viewing the State's closing argument as a whole, it cannot be concluded
that there was a willful and calculated effort to deprive appellant of a fair and
impartial trial. The prosecutor’s remarks were made in response to defense
counsel’s argument and were summations and reasonable deductions from the
evidence. It is clear that the prosecutor did not have an improper motive. While
the trial court did not take any curative measures, the prosecutor’s reference to
Angelou was brief and only a small portion of the entire argument.
Furthermore, the evidence supporting the jury’s answer to the special
issues was overwhelming. In addition to the evidence showing the calculated and
deliberate nature of the heinous double-murder for which the jury had just found
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appellant guilty, the State also presented considerable evidence during the
punishment phase showing appellant’s extensive juvenile record, his inability to
follow instructions or rules while confined as a juvenile or while awaiting trial for
capital murder, and his acts of violence against women. Accordingly, this Court
can be assured that the jury would have returned the same answer to the special
issues absent the prosecutor’s comment. Thus, any error in the prosecutor’s
argument did not affect appellant’s substantial rights. See Brown, 270 S.W.3d at
572; Tex. R. App. P. 44.2(b).
Based on the foregoing, Issue 41 is without merit and should be overruled.
Issue 28: Admission of Appellant’s Statements to CPS Worker
In Issue 28, appellant contends that the trial court erred in overruling his
objection to the testimony of CPS worker Pamela Womack. According to
appellant, it was improper for Womack to testify regarding statements made to
her by appellant while he was in custody where the State failed to show that he
was given the proper Miranda warnings. (Appellant’s Brief, 99-102).
Pertinent Facts
Womack serves as a Special Investigator for CPS, where she assists primary
case workers with their interviews and investigations. (RR46: 118-19). Womack
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interviewed appellant and assisted in interviews with other members of
appellant’s family. (RR46: 119-20). Womack explained that she does these
interviews as part of the development of a social history for the primary case
worker’s file. (RR46: 120-21). CPS was conducting an investigation in this instance
because they were trying to determine the placement of appellant’s and
Kametra’s remaining child, Jeremiah. (RR46: 121).
Appellant objected to Womack testifying to any statements made by
appellant during the interview unless the State could establish he was given
Miranda warnings. (RR46: 122, 124-25). When taken on voir dire by defense
counsel, Womack made it clear that she did not speak with anyone in law
enforcement prior to her interview of appellant and that her interview was
conducted for CPS, not law enforcement. (RR46: 122-24). In response to
appellant’s objection and argument, the State reiterated that the purpose of the
CPS investigation in this case was to determine what to do with Jeremiah. (RR46:
125). The trial court overruled appellant’s objection. (RR46: 125).
Applicable Law
A trial court’s decision to admit testimony of a CPS worker is reviewed for
an abuse of discretion and must be affirmed so long as the decision is within the
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zone of reasonable disagreement. See Berry v. State, 233 S.W.3d 847, 856 (Tex.
Crim. App. 2007); Wilkerson v. State, 173 S.W.3d 521, 524 (Tex. Crim. App. 2005).
The Fifth Amendment provides that no person “shall be compelled in any
criminal case to be a witness against himself . . .” U.S. CONST. amend. V. As a
corollary to that provision, in Miranda v. Arizona, 384 U.S. 436 (1966), the United
States Supreme Court held that the State 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.
Id. at 444.
The procedural safeguards of Miranda, however, do not apply to all
custodial questioning. They generally apply only to custodial interrogation by law
enforcement officers or their agents. Wilkerson, 173 S.W.3d at 527. Although a
CPS worker is an employee of the state, state employment does not, by itself,
make a person a state agent for purposes of defining custodial interrogation. Id.
at 528. As the Wilkerson court explained:
Although state employment clearly makes a person an “agent of the
State,” that label does not, by itself, make the person an “agent of
the State” for the purpose of defining “custodial interrogation.” Not
all government workers must be familiar with and ready to
administer Miranda warnings . . . . *W+hen “the official has not been
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given police powers, Miranda has been held inapplicable to
questioning by *state officials+.”
Id. at 528. The court further observed that different types of state employees
serve different roles. Id. CPS workers are charged with protecting the welfare and
safety of children in the community while the police are responsible for
investigating crime. See id. Therefore, police officers and CPS workers generally
run on separate, yet parallel paths. Id. at 529. CPS’s role may be converted if its
parallel path converges with police, and the organizations are investigating a
criminal offense in tandem. Id.
To determine whether the two paths have converged, courts must examine
the entire record. Id. at 530. The thrust of the inquiry is whether the custodial
interview was conducted explicitly or implicitly on behalf of the police for the
purpose of gathering evidence or statements to be used in a later criminal
proceeding against the interviewee. Id. at 531. The defendant bears the burden of
proving that a particular person is working in tandem with police in a joint
investigation, primarily because the law does not presume such a relationship. Id.
at 529-30, 32.
122
Womack’s Testimony Was Properly Admitted
Appellant has failed to meet that burden in this case. Womack’s testimony
unequivocally showed that she did not interview appellant at the behest of law
enforcement. She was not gathering information to be used in a later criminal
proceeding. Rather, her primary purpose in interviewing appellant was to
determine the future care of the surviving child. (RR46: 120-21, 125, 130-31).
Regardless of the outcome of appellant’s criminal case, it is not surprising that
that CPS would need to collect data to determine the best interests of the child
following the tragedy. See Wilkerson, 173 S.W.3d at 530. Having that limited
purpose does not somehow magically connect Womack with the police
investigation of appellant’s case.
Womack was not an agent of law enforcement who was required to comply
with Miranda. Therefore, the trial court did not abuse its discretion in overruling
appellant’s objection to Womack’s testimony. See, e.g, Berry, 233 S.W.3d at 856
(trial court did not abuse its discretion in admitting testimony of CPS worker;
because the CPS worker’s purpose in interviewing Berry was to find placement for
Berry’s children, she was not an agent of the law enforcement who was required
to comply with Miranda).
123
Any Error Harmless
Even if the court should have excluded Womack’s testimony, the admission
of this evidence did not violate appellant’s substantial rights. See Tex. R. App. P.
44.2(b). The statements made by appellant to Womack did not shed new light on
the offense or appellant’s feelings about his childhood or his relationship with
Kametra. Appellant generally denied having a bad childhood or any mental health
issues; and while he disclosed Kametra’s previous drug-usage and prostitution, he
did not claim she was an unfit mother or otherwise speak badly about her. Same
or similar testimony regarding appellant’s perception of his childhood, mental
health, and feelings toward Kametra was admitted without objection through
other witnesses. Moreover, counsel used cross-examination of Womack to show
that appellant became quite emotional on multiple occasions during the interview
when describing what had happened with the kids and the things that had gone
on in his life. Thus, any error in the admission of this testimony was harmless.
Issue 28 is without merit and should be overruled.
Issue 29: Admission of State’s Exhibit 173
In Issue 29, appellant contends that the trial court erred in overruling his
objection to State’s Exhibit 173, certified business records pertaining to
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appellant’s prior conviction for evading arrest in cause number MB97-57574-K.
Appellant contends that because the judgment did not contain an identifying
fingerprint, the conviction was not properly tied to appellant and should not have
been admitted. (Appellant’s Brief, pp. 102-04).
Pertinent Facts
On July 30, 1997, appellant committed two offenses as part of a continuous
criminal episode: burglary of a motor vehicle and evading arrest. He was charged
with these offenses in cause numbers MA97-57573-K and MB97-57574-K. On
September 19, 1997, appellant pleaded guilty to both offenses and was sentenced
to 120 days confinement, probated for twelve months in each case. (State’s
Exhibits 172-73). Subsequently, his community supervision was revoked and he
was sentenced to 120 days’ confinement in each case.4 (State’s Exhibit 173).
During the punishment phase of trial, the State offered exhibits 172 and
173, certified copies of the judgments and other business records pertaining to
4
The State’s electronic records reflect that appellant’s community supervision was revoked in
both cases on March 31, 1998. The State received a certified copy of the Judgment Revoking
Community Supervision from the county clerk in the burglary case (State’s Exhibit 172);
however, the State did not receive a certified copy of the Judgment Revoking Community
Supervision from the county clerk in the evading arrest case for an unknown reason. (State’s
Exhibits 173).
125
these convictions. (RR44: 106-07, 109; State’s Exhibits 172-73). Exhibit 172
contained a fingerprint which was matched to the fingerprint of appellant taken
that day. (RR44: 100-01, 103-04; State’s Exhibits 169, 172). Exhibit 173 contained
no fingerprint for comparison. (RR44: 100-01, 103, 106). The State presented
testimony that exhibits 172 and 173 pertained to offenses with consecutive cause
numbers, contained matching identifying information of appellant, and reflected
that appellant pleaded guilty and was adjudicated guilty of these offenses on the
same day. (RR44: 106). Appellant did not object to exhibit 172. (RR44: 106). He
objected to exhibit 173 on the basis that there was lack of a predicate and failure
to establish correlation between the exhibit and the appellant. (RR44: 106).
Appellant’s objection was overruled. (RR44:106).
Applicable Law
To establish a defendant’s prior criminal conviction, the State must prove
beyond a reasonable doubt the following: (1) that a prior conviction exists, and (2)
that the defendant is linked to that conviction. See Flowers v. State, 220 S.W.3d
919, 921 (Tex. Crim. App. 2007). Texas law does not require that the prior
conviction be proven in any specific manner. Id. at 922. Any type of evidence,
documentary or testimonial, might suffice. Id.
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Often the proof that is adduced to show the defendant on trial is one and
the same person that is named in the prior criminal conviction “closely resembles
a jigsaw puzzle” where the pieces standing alone usually have little meaning but,
when fitted together, form the picture of the person who committed the prior
conviction. Id. at 923 (citing Human v. State, 749 S.W.2d 832, 835-36 (Tex. Crim.
App. 1988). The trier of fact fits the pieces together and weighs the credibility of
each piece. Id. It looks at the totality of the evidence admitted to determine if
there was a prior conviction and if the defendant was the person convicted. Id.
The Trial Court Did Not Abuse its Discretion by Admitting State’s
Exhibit 173
State’s Exhibit 173, when considered in conjunction with State’s Exhibit
172, was sufficient to prove appellant’s 1997 conviction for evading arrest.
Exhibits 172 and 173 show that the offenses of burglary of a vehicle and
evading arrest were committed on the same date, July 30, 1997. They were filed
under the same service number, 640854F, and same arrest number, 052103. They
contain the same identifying information for appellant, including his full name as
Naim Muhammad; physical description of “BM;” birthdate of 05-03-79; address of
3326 Kyser, Dallas, Texas 75216; and phone number of 214-374-0141. The
signature of “Naim Muhammad” contained on the court’s admonishments and
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order appointing counsel in each case is the same. Finally, the “Judgment on
Negotiated Plea of Guilty or Nolo Contendere Before Judge Community
Supervision Granted” in each case reflects that appellant pleaded guilty and was
adjudicated of both offenses on the same date, September 19, 1997. (State’s
Exhibits 172-73). Viewing the totality of the evidence, the trier of fact could have
reasonably determined that there was a prior conviction for evading arrest and
that appellant was the person convicted. See Flowers, 220 S.W.3d at 923.
Accordingly, the trial court did not abuse its discretion by overruling appellant’s
objection to State’s Exhibit 173.
Any Error Harmless
Even if this Court were to find error in the trial court’s ruling, the admission
of this evidence did not violate appellant’s substantial rights. See Tex. R. App. P.
44.2(b). Exhibit 173 was one of seven prior convictions, the rest of which were
unquestionably proven by documentary and testimonial evidence. The State
proved that appellant committed numerous extraneous unadjudicated offenses
during his twenty-year history of criminal activity. The State presented evidence
of appellant’s repeated infractions while in Daytop, TYC and Dallas County Jail,
and his violence toward women. The jury also had before it the heinous facts of
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the capital murder. In viewing the entire record as a whole, it is highly unlikely
that the inclusion of exhibit 173 influenced the outcome of the trial. Accordingly,
any error in the admission of this exhibit was harmless.
Issue 29 is without merit and should be overruled.
Issues 30-32: Admission of Testimony from Refreshed Memory
In Issues 30-32, appellant contends that the trial court erred in overruling
his objections to the testimony of police officers who used police reports to
refresh their memory. He contends that State allowed its witnesses to testify from
documents not in evidence under the guise of refreshing their recollection in
order to get in evidence that was otherwise not admissible. (See App. BR. at 105-
07). His contentions are wholly without merit.
Applicable Law
Texas evidentiary rules allow a witness in a criminal case to refresh his or
her memory either while testifying or before testifying. Tex. R. Evid. 612. A police
officer may review written reports to refresh his or her memory, then testify from
a “refreshed memory.” McCoy v. State, 877 S.W.2d 844, 845 (Tex. App.—Eastland
1994, no pet.). As long as the witness had personal knowledge at some time in the
past and that memory has been refreshed by review of the writing, the testimony
129
itself is received as substantive evidence. See Young v. State, 891 S.W.2d 945, 951
(Tex. Crim. App. 1994). Further, a writing need not be prepared by the person
who is having their memory refreshed, but rather, the focus should be that the
person testifying has their own personal recollection refreshed. See id.
Officer Chris Havens
According to appellant’s brief, the complaints raised in issues 30 and 31
pertain to the testimony of Officer Chris Havens. (See App. Br. at 105). However,
the portions of the record he cites pertain to the testimony of Officer Harold
Andrews. To the extent that his record citation is a typographical error and his
claims do relate to the testimony of Chris Havens, the record shows they are
wholly without merit.
Former Dallas Police Officer Chris Havens was the officer who arrested
appellant following his burglary of the habitation of Ivis Wright. Wright sold candy
to kids in her neighborhood. (RR44: 131). Prior to testifying, Officer Havens
reviewed the police report and recalled the incident because of the candy that
was stolen during the burglary. (RR44: 125, 131). Officer Havens testified that he
responded to a call reporting a burglary on February 26, 1993. (RR44: 124-25).
After a witness at the scene identified a group of juveniles nearby as the
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perpetrators of the burglary, Officer Havens and other officers pursued them in a
foot chase, eventually catching them and taking them into custody. (RR44: 125-
26). When Officer Havens was asked whether he could identify the individual that
he arrested and booked-in on that date, he responded, “According to the arrest
report, yes, ma’am.” (RR44: 126). Appellant objected to Officer Havens testifying
to details he did not have personal knowledge of. (RR44: 126-27). His objection
was overruled. (RR44: 126). The State rephrased its question and Officer Havens
testified that, based on his refreshed recollection from the police report, Naim
Rasool Muhammad was the individual he arrested and booked-in on that date.
(RR44: 127).
Appellant did not object at trial on the basis that Officer Havens was
testifying from a record not in evidence and offering personal information after
using a document he did not prepare to refresh his memory. As such, his
complaints have not been preserved for review. See Tex. R. App. P. 33.1(a).
In any event, the record shows that Officer Havens did not testify from a
document. Rather, he properly refreshed his memory using his report. Based on
this refreshed memory, he was able to recall that Naim Rasool Muhammad was
the individual he arrested and booked-in for burglary on the date in question. The
131
trial court did not err in allowing Officer Havens to testify from his refreshed
memory. See Young, 891 S.W.2d at 951.
Officer Harold Andrews
To the extent that appellant’s record citations are correct and the
complaints raised in issues 30 and 31 pertain to the cited testimony of Officer
Harold Andrews, these contentions are also without merit.
Dallas Police Lieutenant Harold Andrews was the officer who detained
appellant for burglary of a vehicle on July 27, 1994. (RR44: 140-41). Lt. Andrews
was driving around the area where the burglary occurred and spotted appellant,
who matched the description of one of the suspects. (RR44: 142). Lt. Andrews
detained appellant and brought him back to the scene of the burglary, where he
was identified by the complainant as one of the perpetrators. (RR44: 142-43). Lt.
Andrews testified that it was standard procedure for him to gather personal
information from appellant at the time he detained him. (RR44: 146, 148-49, 150-
51). He relayed that information to another officer at the scene, who compiled
the information from all the officers involved and made a single report of the
incident. (RR44: 142-43, 154).
132
Lt. Andrews reviewed this report prior to testifying to refresh his memory
of the incident. (RR44: 141, 145). He was also asked to review this report during
his testimony to refresh his recollection of appellant’s full name and date of birth.
(RR44: 144). Appellant objected to Lt. Andrews testifying from a report not in
evidence and to him refreshing his memory from a document he did not prepare.
(RR44: 144, 148-49, 151-52). The trial court overruled his objections and allowed
Lt. Andrews to refresh his memory. (RR44: 144-45). After refreshing his memory,
Lt. Andrews testified that the person he detained that day was named Naim
Muhammad with a birthdate of May 3, 1979. (RR44: 152-53).
The record demonstrates that Lt. Andrews did not read from a document
not in evidence, as appellant claims. Rather, he properly used the police report to
refresh his memory of the incident. After refreshing his memory, Lt. Andrews
stated appellant’s name and date of birth from memory. Lt. Andrews established
how he would have had personal knowledge of appellant’s identity by referencing
to the standard procedures that he habitually follows. (RR44: 146, 148, 150). The
fact that Lt. Andrews did not prepare the report in its entirety is irrelevant; what
matters is that his memory was, in fact, refreshed. See Young, 891 S.W.2d at 951.
133
The trial court properly overruled appellant’s objections and allowed Lt. Andrews
to testify from his refreshed memory.
Based on the foregoing, Issues 30 and 31 are without merit and should be
overruled.
Officer Brandon Hernandez
In Issue 32, appellant complains about the testimony of Garland Police
Officer Brandon Hernandez. Officer Hernandez arrested appellant on July 4, 1999.
Officer Hernandez reviewed his report and refreshed his memory of the incident
prior to testifying. (RR45: 61, 71). Officer Hernandez testified that he and his
partner performed a felony stop of a vehicle that fled the scene of a burglary.
(RR45: 60-65). There were three passengers in the vehicle, one of whom was
appellant. (RR45: 67). The officers obtained the passengers’ identifying
information and entered that information into the police computer to check for
outstanding warrants. (RR45: 67). Although Officer Hernandez could not recall
offhand whose information he obtained or which officer ran the information
through the police system, he testified that they were able to confirm appellant’s
identity in their system and confirm that he had outstanding warrants. (RR45: 67-
69). Appellant objected to this testimony on the basis that Officer Hernandez did
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not have personal knowledge of the facts he was testifying to. (RR45: 69). The
objection was overruled. (RR45: 69).
The record reflects that Officer Hernandez was the author of the report and
collected the information found in the report documenting appellant’s arrest on
July 4, 1999. He was there for the duration of the detention and arrest and
compiled information regarding all three suspects. The personal knowledge
Hernandez gained during the investigation was incorporated into his report,
which Hernandez used to refresh his memory for testimony. See, e.g., McCoy, 877
S.W.2d at 844. Officer Hernandez did not read from the report, but simply used
the report to refresh his memory of the incident. The trial court did not err in
allowing him to testify from his refreshed memory. See Young, 891 S.W.2d at 951.
Issue 32 is without merit and should be overruled.
Issues 33 and 37: Testimony of Officer David Solomon
In Issues 33 and 37, appellant contends that the trial court erred in
overruling his objection to the testimony of Officer David Solomon regarding an
arrest of appellant. He argues that allowing the officer to testify that appellant
was pulled over for suspicion of being involved in an attempted auto theft, when
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he was later cleared of any involvement, was not relevant and highly prejudicial.
(Appellant’s Brief, pp. 108-10, 116-18).
Dallas Police Officer David Solomon arrested appellant on October 4, 1993.
(RR45: 83, 87). Early that morning, the police pulled over a vehicle matching the
description of a vehicle involved in an attempted auto theft. (RR45: 84-86, 126-
27). There were multiple passengers in the vehicle, including appellant; the
officers obtained personal information from all the passengers. (RR45: 88, 127-
28). The officers determined that appellant and the other passengers were not
involved in the attempted auto theft. (RR45: 99, 103, 129-30). Appellant,
however, was arrested for two outstanding warrants for burglary of a habitation.
(RR45: 88-89, 128-30). One of those warrants was for the burglary of Ivis Wright,
the woman who sold candy in the neighborhood. (RR45: 97-98, 100).
Appellant objected to Officer Solomon being allowed to testify that
appellant was pulled over because the vehicle was suspected of being involved in
an attempted auto theft when the passengers were later cleared of any
involvement in that offense. Appellant argued that the reason for the stop was
irrelevant and prejudicial. (RR45: 100, 104-05, 124). The trial court ruled that
Officer Solomon could testify about how appellant came to be pulled over by
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police, so long as the State made clear that he was cleared of any involvement in
the attempted auto theft. (RR45: 100-01). The State complied with the Court’s
ruling. (RR45: 129). Counsel also elicited this information on cross-examination.
(RR45: 130).
Relevant evidence means evidence having any tendency to make the
existence of any fact that is of consequence to the determination of the action
more probable or less probable than it would be without the evidence. Tex. R.
Evid. 401. Rule 403 favors the admission of relevant evidence and carries a
presumption that relevant evidence will be more probative than prejudicial.
Williams, 958 S.W.2d at 196.
Officer Solomon’s testimony was not introduced for the purpose of proving
any crime related to the attempted auto theft, but rather to show appellant’s
arrest for the burglary of Ms. Wright’s home. Although Ms. Wright had previously
testified about the circumstances of the burglary, she testified that she did not
know who had committed the offense. (RR44: 119-27). And while appellant was
identified as one of the suspected perpetrators by Officer Havens, there was no
further evidence before the jury regarding any further disposition of the case.
Officer Solomon’s testimony demonstrated that appellant was charged and
137
arrested for that offense. Officer Solomon’s explanation for the stop was relevant
to show how and why he came into contact with appellant on October 4, 1993,
since he had no involvement in the investigation of the burglary offense. Without
this explanation, his testimony regarding appellant’s arrest would be incomplete
and confusing.
Furthermore, appellant cannot show harm. Officer Solomon made clear
during his testimony before the jury that appellant was cleared of any
involvement in the attempted auto theft. (RR45: 129, 130).
Based on the foregoing, the trial court did not abuse its discretion in
overruling appellant’s objection to the testimony of Officer Solomon. Issue 33 is
without merit and should be overruled.
Issue 34: Testimony of Warden Melodye Nelson
In Issue 34, appellant contends that the trial court erred in overruling his
objection to Warden Nelson’s anecdotal testimony about weapons produced in
prison by other inmates. He claims that this evidence was not relevant and was
prejudicial to him because he had no connection to the weapons presented.
(Appellant’s Brief, pp. 110-11).
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Rule 702 of the Texas Rules of Evidence provides:
If scientific, technical, or other specialized knowledge will assist the
trier of fact to understand the evidence or to determine a fact in
issue, a witness qualified as an expert by knowledge, skill,
experience, training, or education may testify thereto in the form of
an opinion or otherwise.
Tex. R. Evid. 702. The proponent of evidence under Rule 702 must show, by clear
and convincing proof, that the evidence is sufficiently relevant and reliable to
assist the jury in accurately understanding other evidence or in determining a fact
in issue. See Gallo, 239 S.W.3d at 765. A trial court’s decision to admit or exclude
expert testimony is reviewed under an abuse of discretion standard. Id.
Warden Nelson was qualified as an expert by virtue of her knowledge and
experience in the Texas prison system. Her testimony was relevant to helping the
jury determine Special Issue No. 1, whether appellant would commit criminal acts
of violence that would constitute a continuing threat to society. It is well settled
that “society” includes the prison population. See Estrada v. State, 313 S.W.3d
274, 281 (Tex. Crim. App. 2010). Warden Nelson’s testimony described for the
jury what appellant’s life would be like if he were sentenced to life in prison and
his society became prison society. Prison society is not something within a juror’s
common knowledge. Warden Nelson testified regarding staffing, classification,
139
housing, daily routine, discipline and the potential for violence within Texas
prisons. She did not specifically testify that appellant would be more or less likely
to commit violent acts in prison, only that there is a potential for violence in all
classification levels of the prison system. Warden Nelson showed weapons that
were found and confiscated in prison over the years in an effort to illustrate her
testimony for the jury. The trial court did not abuse its discretion in admitting this
evidence. See Threadgill v. State, 146 S.W.3d 654, 670-671 (Tex. Crim. App. 2004)
(finding no abuse of discretion in trial court’s admission of photographs of
weapons made in prison which were used by a prison expert to illustrate his
testimony regarding inmate violence within various classifications of prison
society).
Even if the trial court erred in admitting Nelson’s testimony, any alleged
error was harmless. See Tex. R. App. P. 44.2(b). Warden Nelson’s testimony was
offered by the State in rebuttal during the punishment phase. The jury had
already seen and heard evidence regarding the instant capital murder. The jury
had already heard about appellant’s lengthy history of criminal activity, his
numerous violations while on probation, his failure to obey orders while
incarcerated, his anger issues, and his violence toward women, including his own
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sister. Furthermore, the prejudicial effect of Warden Nelson’s testimony was
minimized by its general nature. It was neither graphic nor disturbing in content.
That fact, in conjunction with the admission of other more compelling
punishment evidence by the State, rendered harmless any error in the admission
of Warden Nelson’s testimony. Issue 34 is without merit and should be overruled.
Issue 35: Denial of Hearing on Extraneous Offenses and Bad Acts
In Issue 35, appellant contends that the trial court erred in denying his
request to hold a hearing outside the presence of the jury on the admissibility of
any extraneous offense evidence the State planned to offer during the
punishment phase of trial. (Appellant’s Brief, pp. 112-14).
Pertinent Facts
Appellant filed a pretrial motion requesting that the trial court hold a
hearing and make a threshold determination as to the admissibility of every
extraneous offense or bad act the State planned to present during the
punishment phase. (CR2: 273-78). Appellant’s motion also requested that (1) the
trial court give an oral instruction at the conclusion of the admission of each
extraneous offense that it is not be considered unless proven beyond a
reasonable doubt, and (2) a reasonable doubt instruction with respect to all
141
extraneous offenses admitted at punishment be included in the jury charge at
punishment. (CR2: 273-78).
These motions were discussed at a pretrial hearing, but no ruling was
made. Defense counsel argued that the “heart” of his motion was a concern that
the State would attempt to prove extraneous offenses through the use of
business records. (RR42: 46-48). The State responded that it intended to present
all extraneous offense evidence through live witnesses who could testify about
what happened and that it was appellant who did it. (RR42: 46-47, 50).
Appellant re-urged this motion during the punishment phase. (RR44: 42-53,
133-39). The State responded that it had turned over an exhaustive 404(b) notice
to appellant and that it would only be presenting extraneous offenses that it had
a good faith belief could be proven in accordance with the law. (RR44: 42-43).
Appellant’s requests for a hearing on each extraneous offense and an oral
instruction following the admission of each extraneous offense were denied, but
his request for a written instruction in the jury charge was granted. (RR44: 48-55).
The trial court later granted appellant’s request for an oral instruction, which was
given to the jury during the presentation of the State’s extraneous offense
evidence. (RR45: 41-42).
142
Applicable Law
Pursuant to Article 37.071 of the Code of Criminal Procedure, a trial court
has wide discretion in admitting evidence, including extraneous offenses, relevant
to the jury’s determination of a capital murder defendant’s death-worthiness. See
Tex. Code Crim. Proc. Ann. art. 37.071, § 2(a)(1) (West Supp. 2014); Powell v.
State, 898 S.W.2d 821, 830 (Tex. Crim. App. 1994). Extraneous offenses are
admissible whether adjudicated or unadjudicated, violent or nonviolent. Kemp v.
State, 846 S.W.2d 289, 307 (Tex. Crim. App. 1992).
When offering an extraneous offense at the punishment phase of a capital
trial, the State neither has to prove all of the elements of the extraneous offense,
nor prove beyond a reasonable doubt that the defendant committed the
extraneous offense. See Adanandus v. State, 866 S.W.2d 210, 234 (Tex. Crim. App.
1993); Spence v. State, 795 S.W.2d 743, 759 (Tex. Crim. App. 1990). Rather, the
State must “clearly prove” that an offense was committed and that the accused
was the perpetrator. Young, 283 S.W.3d at 876.
143
Applicability of Mitchell v. State
In his brief, appellant cites Mitchell v. State, 931 S.W.2d 950 (Tex. Crim.
App. 1996), in support of his argument that he was entitled to a hearing to
determine the admissibility of extraneous offense evidence. In Mitchell, this Court
held that the trial court has the responsibility of determining the threshold
admissibility of extraneous offense evidence at the punishment phase of a non-
capital trial; that is, the court must make an initial determination at the proffer of
the evidence that the evidence is relevant and that a jury could reasonably find
beyond a reasonable doubt that the defendant committed the extraneous
offense. See Mitchell, 931 S.W.2d at 954. The Court also held that, if requested,
the defendant is entitled to a limiting instruction that informs the jury that
extraneous offenses offered during the punishment phase must not be
considered unless they are proven beyond a reasonable doubt. Id. at 954.
Mitchell was a non-capital case and was based on the language in Article
37.07. Capital cases, however, are governed by Article 37.071. This article clearly
imbues the trial judge with wide discretion to admit any evidence relevant to the
jury’s determination of a capital defendant’s deathworthiness, including evidence
of adjudicated and unadjudicated extraneous offenses, so long as the State can
144
sufficiently connect the appellant to the alleged extraneous offense. See Kemp,
846 S.W.2d at 307. There is no requirement that they be proven beyond a
reasonable doubt or that the trial court give any additional instructions on the
burden of proof beyond what is already included in the instructions on the special
issues. See Jackson v. State, 992 S.W.2d 469, 477 (Tex. Crim. App. 1999). As such,
Mitchell is inapplicable. See id.; see also Prystash v. State, 3 S.W.3d 522, 533 (Tex.
Crim. App. 1999) (finding Mitchell “inapplicable to the capital sentencing
structure” in addressing appellant’s complaint regarding the trial court’s refusal to
give separate jury instruction on burden of proof of extraneous offenses).
Appellant Has Not Shown an Abuse of Discretion or Harm
In any event, the trial court did not abuse its discretion in denying
appellant’s request. Even if appellant was entitled to a threshold determination of
admissibility under the rules of evidence, he was not necessarily entitled to
hearing on each separate extraneous offense. See Tex. R. Evid. 104. There is no
set method the court must use to make this threshold determination; it could
base the decision on an assessment of testimony and argument made at a hearing
outside the presence of the jury, an evaluation of a written proffer by the State,
or some other method. See Arzaga v. State, 86 S.W.3d 767, 781 (Tex. App.—El
145
Paso 2002, no pet.); Mann v. State, 13 S.W.3d 89, 94 (Tex. App.—Austin 2000),
aff'd, 58 S.W.3d 132, (Tex. Crim. App. 2001); Welch v. State, 993 S.W.2d 690 (Tex.
App.—San Antonio 1999, no pet.).
Here, the State filed a detailed, chronological 404(b) notice outlining the
various extraneous offenses committed by appellant. Outside the presence of the
jury, the State made an oral proffer to the trial court that it planned to prove
extraneous offenses through live witnesses who could testify about what
happened and show that appellant was the perpetrator. (RR42: 46, 50; RR44: 44).
The State also assured the trial court that it had no intention of offering evidence
of an extraneous offense that it did not have a good faith belief it could prove in
accordance with the law. (RR44: 42). While the trial court made no express ruling
on the admissibility of the extraneous offenses prior to trial, its denial of
appellant’s request for a hearing following the State’s proffer constitutes an
implied ruling of admissibility. See Mann, 13 S.W.3d at 94.
Further, any error in the trial court’s failure to hold a hearing was harmless.
With regard to each extraneous offense presented at punishment, which are
outlined in detail in the State’s Summary of Facts (Infra pp. 11-26), the State
146
provided clear proof that an offense occurred and that appellant was the
perpetrator. See Young, 283 S.W.3d at 876.
In addition, the trial court gave both an oral and written instruction to the
jury that they were not to consider extraneous offenses for any purpose unless
they found and believed beyond a reasonable doubt that appellant committed
the offenses, if any were committed, and even then they could only consider
them in determining their answers to the special issues. (RR45: 41-42; CR2: 406).
The jury is presumed to have followed this instruction and disregarded any
offenses they did not believe were proven beyond a reasonable doubt. See
Gamboa v. State, 296 S.W.3d 574, 580 (Tex. Crim. App. 2009) (noting jury
presumed to follow the judge’s instructions). This extra safeguard, which was not
required but operated to appellant’s benefit, rendered any error in the trial
court’s failure to hold a hearing harmless.
Appellant wholly fails to show how he was harmed by the trial court’s
ruling. All of the extraneous offenses presented were relevant to the jury’s
determination of appellant’s deathworthiness. See Powell, 898 S.W.2d at 830;
Kemp, 846 S.W.2d at 307. Appellant does not argue that he did not commit the
extraneous offenses presented. He also makes no attempt to explain for the Court
147
which, if any, extraneous offenses would have been excluded by the court if the
requested hearing had been held. Appellant argues that if the trial court had
acknowledged his request for a threshold hearing, Issues 42, 43 and 44 raised in
his brief would have been prevented. (Appellant’s Brief, p. 113). However, these
issues do not pertain to the admission of extraneous offense evidence. In Issue
42, appellant challenges the sufficiency of the evidence supporting the jury’s
answer to the future-dangerousness special issue; and Issues 43 and 44 are
constitutional challenges to Texas’ death penalty statute. Based on the foregoing,
Issue 35 is without merit and should be overruled.
Issue 36: Denial of Motion for Mistrial
In Issue 36, appellant contends that the trial court erred in overruling his
motion for a mistrial. (Appellant’s Brief, pp. 114-16).
Pertinent Facts
Dallas Police Officer Ryan Swain testified that he responded to a suspicious
person call on July 18, 2010. (RR45: 73-74). Before he could elaborate further,
appellant requested a bench conference, where he notified the State and the trial
court that he did not have notice of the incident Officer Swain was about to offer
testimony on. (RR45: 75). The trial court removed the jury and appellant objected
148
to Officer Swain’s testimony on the basis that he was not provided notice by the
State. (RR45: 75-76). The prosecutors, realizing that the offense had been
mistakenly omitted from the State’s Notice of Extraneous Offenses, notified the
Court that it would not present any further testimony from Officer Swain. (RR45:
76).
Counsel stated that the absence of any further testimony would invite the
jury to speculate and he requested that an instruction to disregard the testimony
be given. (RR45: 78). The trial court granted appellant’s request. (RR45: 78-79).
Appellant expressed his concerns that a curative instruction was inadequate and
also moved for a mistrial. (RR45: 79). That request was denied. (RR45: 79-80).
When the jury was returned to the courtroom, the trial court orally instructed
them to “disregard any testimony that was offered by Officer Swain, the last
witness that the State presented to you.” (RR45: 81). Appellant moved for a
mistrial in the presence of the jury and his request was denied. (RR45: 81). In the
punishment charge, the jurors were further instructed: “During your deliberations
upon the special issues, you must not consider, discuss, nor relate any matters
not in evidence before you.” (CR2: 405).
149
Applicable Law
A mistrial is the trial court’s remedy for improper conduct that is so
prejudicial that expenditure of further time and expense would be wasteful and
futile. Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004). Only in extreme
circumstances, where the prejudice is incurable, will a mistrial be required. Id.
When the trial court sustains an objection and grants an instruction to disregard,
but denies a motion for mistrial, the proper issue is whether the trial court abused
its discretion by denying the motion for mistrial. Id.
In determining whether the trial court abused its discretion in denying the
mistrial, an appellate court considers the following factors: (1) severity of the
misconduct (the magnitude of the prejudicial effect); (2) measures adopted to
cure the misconduct (the efficacy of any cautionary instruction by the judge); and
(3) the certainty of conviction absent the misconduct (the strength of the
evidence supporting the conviction). Mosley v. State, 983 S.W.2d 249, 259 (Tex.
Crim. App. 1998).
The Trial Court Did Not Abuse Its Discretion by Denying Appellant’s
Motion for Mistrial
Here, Officer Swain’s testimony is two pages from one volume of a 52-
volume record. He was cut off before he could offer any substantive, much less
150
prejudicial, testimony about his encounter with appellant. The State did not
present any further testimony from him after realizing the error in their notice.
Clearly, his testimony was not offered to inflame the jurors, nor was it of such a
character as to suggest the impossibility of withdrawing the impression left on the
jury. The trial court’s prompt instruction to disregard was sufficient to cure any
harm resulting from the impression left on the jury. This Court presumes the jury
followed the trial court’s instruction. See Gamboa, 296 S.W.3d at 580 (noting that
a reviewing court generally considers instructions given to the jury sufficient to
remedy most improprieties that occur during trial and presumes the jury will
follow the trial court’s instructions).
Given the strength of the evidence supporting the jury’s answers to the
special issues, the trial court’s prompt instruction to disregard, and the
inconsequential nature of the complained-of testimony, the trial court did not
abuse its discretion in denying appellant’s motion for mistrial. As such, Issue 36 is
without merit and should be overruled.
Issues 38 and 39: Cross-Examination of Appellant’s Experts
In Issues 38 and 39, appellant contends that the trial court erred by
overruling his objections and permitting the State to cross-examine his experts,
151
Dr. Kellie Gray-Smith and Dr. Gilbert Martinez, on antisocial personality disorder.
He claims that the State’s cross-examination was an attempt to convert his
experts into State’s witnesses and elicit opinions on matters that were outside
their field of expertise. (Appellant’s Brief, pp. 118-21). Appellant’s contentions are
without merit and should be overruled.
Applicable Law
Texas Rule of Evidence 611(b) provides “a witness may be cross-examined
on any matter relevant to any issue in the case, including credibility.” Tex. R. Evid.
611(b). The scope of appropriate cross-examination is necessarily broad. Carroll v.
State, 916 S.W.2d 494, 497 (Tex. Crim. App. 1996). The parameters of cross-
examination are within the trial court’s discretion, and its decision is not subject
to reversal on appeal absent a clear abuse of discretion. Cantu v. State, 939
S.W.2d 627, 635 (Tex. Crim. App. 1997); Chambers v. State, 866 S.W.2d 9, 27 (Tex.
Crim. App. 1993).
Issue 38: Dr. Kellie Gray-Smith
In Issue 38, appellant contends that the trial court erred in overruling his
objection to the State’s cross-examination of Dr. Kellie Gray-Smith, a psychologist
retained by the defense to provide expert testimony on special education and the
152
multi-cultural aspects of psychology. The cross-examination of which appellant
complains went as follows:
Q (MS. KEMP): And you are familiar with the criteria for antisocial
personality disorder; is that correct?
A (DR. GRAY-SMITH): Yes.
Q: All right.
A: Yes, that’s correct. Yeah.
Q: So you know that they, typically, have a reckless disregard for the
safety of others?
A: Yes. That can be part of the profile.
Q: And that they fail to conform to the norms?
MR. JOHNSON: Excuse me, Judge. I’m going to object. This is outside
of the area that we brought in any testimony in regards -- and she is
talking about -- if she is talking symptomology of ASPD, in general,
that’s one thing, but now she is going to try to associate these
symptom-ologies to a particular individual who this witness has not
interviewed or examined, so I'm going to object to her stating a litany
of the ASPD criteria and stating that they are all attributed to a
particular person when she has not examined the person. You cannot
attribute it to that person.
MR. HEALY: Judge, she has not examined the person, but she gave
the opinion that he has antisocial personality disorder.
MR. JOHNSON: She has not given a diagnosis of that, Judge. There's a
big difference. She is not allowed to sit there and say to somebody
that she --
153
THE COURT: I understand and I heard her testimony. I will overrule
the objection. Go ahead.
(RR49: 76-77).
Appellant Failed to Preserve His Complaint for Review
To preserve a complaint for appellate review, a party must have presented
a specific and timely request, motion, or objection to the trial court and, further,
must have obtained a ruling. See Tex. R. App. P. 33.1(a); Broxton v. State, 909
S.W.2d 912, 918 (Tex. Crim. App. 1995); Burks v. State, 876 S.W.2d 877, 899 (Tex.
Crim. App. 1994); Turner v. State, 805 S.W.2d 423, 431 (Tex. Crim. App. 1991).
Because appellant failed to object to the prosecutor’s preceding question, which
asked Dr. Gray-Smith about one of the criteria or symptoms present in someone
with antisocial personality disorder, appellant’s objection was untimely and failed
to preserve the issue for review. Additionally, Dr. Gray-Smith had already
testified, without objection, that she was of the opinion that appellant had
antisocial personality disorder:
Q (MS. KEMP): And so as you conclude throughout your report here
that Mr. Muhammad has antisocial personality disorder, you
connected those dots on your own; is that correct?
A (DR. GRAY-SMITH): Yes.
154
Q: You are a licensed psychologist; is that correct?
A: Yes.
Q: And you are familiar with all behavioral disorders; is that correct?
A: That’s correct.
Q: So given a limited amount of information, you can make a
diagnosis of antisocial personality disorder, could you not?
A: I would form an opinion. I don’t know if I would say it is a
diagnosis, but I would form an opinion.
Q: Yeah, I think that’s more accurate. So any licensed psychologist
with the appropriate training and behavioral and studies, which all
licensed psychologists have, could form an opinion, even with the
limited amount of records that you have; is that correct?
A: It’s possible.
(RR49: 58-59). Appellant also failed to object to the following exchange:
Q (MS. KEMP): You have an opinion that Mr. Muhammad is a
sociopath, don't you?
A (DR. GRAY-SMITH): I have an opinion that his pattern of academic
records and psychological records suggest that he has an antisocial
personality disorder.
Q: Same as a sociopath?
A: Yes, in a generic sense.
Q: Okay. Thank you.
155
(RR49: 72). Accordingly, appellant has failed to preserve his complaint for review.
See Tex. R. App. P. 33.1(a).
The Trial Court Did Not Abuse Its Discretion by Permitting the
State’s Cross-Examination of Dr. Gray-Smith
Nevertheless, should this Court consider this issue, the record reflects that
the trial court properly overruled appellant’s objection. A witness may be cross-
examined on any issue relevant to the case. Tex. R. Evid. 611(b). Clearly, whether
appellant possesses the diagnostic criteria for antisocial personality disorder is
relevant to future danger and admissible in a capital murder trial. See Powell, 898
S.W.2d at 830 (trial court has wide discretion in admitting evidence any evidence
relevant to the jury’s determination of a capital murder defendant’s death-
worthiness). Additionally, here, this was certainly a relevant area of cross-
examination since it was raised by Dr. Gray-Smith’s testimony on direct
examination.
On direct examination, Dr. Gray-Smith testified that she had reviewed a
1994 psychological evaluation of the appellant, in which appellant was diagnosed
with conduct disorder. (RR49: 41, 55-57). Defense counsel then elicited the
following testimony:
156
Q (MR. JOHNSON): Doctor, do you -- when you have an individual
that goes forward from the Oppositional Defiant Disorder and into
the Conduct Disorder, if the behaviors never, actually, got ahold of or
actually intervened and treated, is there a predictability as to where
that person is going to end up?
A (DR. GRAY-SMITH): Yes. They usually end up being diagnosed with
antisocial personality disorder, which is the adult form of conduct
disorder.
....
Q: And as an expert here testifying today, would it surprise you, not
that there has been a finding of this, but would it surprise you that
the person whose records that you examined there would have gone
from the point of ODD to conduct disorder to the symptom-ologies
of antisocial personality behavior disorder?
A: Not at all. It would have been predictable.
(RR49: 43, 45-46). Because the issue of antisocial personality disorder was
relevant and was raised on direct examination by appellant, the State was
permitted to cross-examine Dr. Gray-Smith concerning her knowledge about the
disorder and whether she believed that the appellant exhibited the criteria
necessary for such a diagnosis. Accordingly, the trial court properly overruled
appellant’s objection.
157
Issue 39: Dr. Gilbert Martinez
In Issue 39, appellant contends that the trial court erred in overruling his
objection to the State’s cross-examination of Dr. Gilbert Martinez, a clinical
neuropsychologist retained by the defense to provide expert testimony on
appellant’s cognitive and intellectual functioning. The cross-examination of which
appellant complains went as follows:
Q (MS. KEMP): So, doctor, would someone with antisocial personality
disorder have an impulsiveness problem?
A (DR. MARTINEZ): Impulsivity is one of the diagnostic criteria for
antisocial personality disorder, yes.
Q: Would someone with antisocial personality disorder have a failure
to conform to society’s norms and general rules and regulations of
society?
A: That’s another one of the diagnostic criteria for antisocial
personality disorder.
Q: Would they have a history of lying, or conning other people for
their own personal gain or pleasure?
A: That’s another one of the descriptors for antisocial personality
disorder. That’s correct.
Q: Would they have difficulty in planning ahead?
A: Yes. That can be one of the symptoms, one of the features of
antisocial personality disorder.
158
Q: Would they be seen as irritable and aggressive by having repeated
fights in school?
MR. JOHNSON: Excuse me, Judge. All of these questions here are
clearly outside of the referral question. He has testified in regards to
what he was asked to do by me in regards to this case. He has not
been asked to do any kind of psychological assessment in regards to
any ASPD factors. She is, basically, just running down the DSM 4 and
asking if these are the criteria for antisocial personality disorder. He
was not asked, in any way, to do any type of evaluation in this case in
those regards. He is testifying only towards his cognitive deficits, and
that’s all that he is on for. We’ve got other individuals to speak to
those matters where that would be relevant, but not this doctor.
MR. HEALY: Judge, he made an Axis II diagnosis and that included
antisocial personality disorder.
THE COURT: Overruled. Please proceed.
MS. KEMP: Thank you. That person will show a reckless disregard for
the safety of others, wouldn't he?
DR. MARTINEZ: That’s another feature of the antisocial personality
disorder, yes.
(RR48: 153-54).
Appellant Failed to Preserve His Complaint for Review
To the extent that appellant is complaining about the line of questioning
concerning the symptoms or diagnostic criteria associated with antisocial
personality disorder, appellant failed to raise a timely objection. See Tex. R. App.
P. 33.1(a). The prosecutor had already posed several questions regarding this
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subject prior to appellant’s objection. Error is defaulted when the same evidence
is presented elsewhere without objection. McFarland v. State, 845 S.W.2d 824,
840 (Tex. Crim. App. 1992); Narvaiz v. State, 840 S.W.2d 415, 430 (Tex. Crim. App.
1992). Appellant also failed to object to additional questions concerning the same
subject matter. (RR48: 155-56). Accordingly, appellant has failed to preserve this
complaint for review.
To the extent that trial counsel was objecting to the prosecutor’s questions
concerning whether Dr. Martinez was of the opinion that appellant had antisocial
personality disorder, his objection was premature because the prosecutor had not
elicited such testimony. Furthermore, when the State did pose such questions to
Dr. Martinez, appellant failed to object. (RR48: 157-60). Consequently, this
complaint has also not been preserved for review.
The Trial Court Did Not Abuse its Discretion by Permitting the
State’s Cross-Examination of Dr. Martinez
Alternatively, appellant’s claim fails on the merits. Dr. Martinez, a licensed
neuropsychologist, testified that he was familiar with the diagnostic criteria for
antisocial personality disorder. (RR48: 156). That diagnostic criteria is found in the
Diagnostic and Statistical Manual for Mental Disorders (“DSM”), which Dr.
Martinez testified is used by most clinicians and was, in fact, used by Dr. Martinez
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in his evaluation of the appellant. (RR48: 155-56; Defendant’s Exhibit 11).
Therefore, questions concerning the criteria or symptoms exhibited by someone
with antisocial personality disorder were not outside his area of expertise.
Additionally, because Dr. Martinez had reviewed appellant’s medical records and
a 1994 psychological evaluation, conducted a face-to-face interview with
appellant, and administered a battery of neuropsychological tests to the
appellant, it was reasonable to question him concerning whether he had an
opinion as to whether appellant met the criteria for a diagnosis of antisocial
personality disorder. (RR48: 102-07, 111-12). Accordingly, the State’s cross-
examination of Dr. Martinez was appropriate, and the trial court properly
overruled appellant’s objection.
Error, If Any, Was Harmless
Finally, even if the trial court erred in overruling the appellant’s objections,
the error was harmless. Error in the admission of evidence is non-constitutional
error and must be disregarded unless the error affects a defendant’s substantial
rights. See Tex. R. Evid. 103; Tex. R. App. P. 44.2(b); Walters v. State, 247 S.W.3d
204, 218-19 (Tex. Crim. App. 2007). “[S]ubstantial rights are not affected by the
erroneous admission of evidence if the appellate court, after examining the
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record as a whole, has fair assurance that the error did not influence the jury, or
had but a slight effect.” Solomon v. State, 49 S.W.3d 356, 365 (Tex. Crim. App.
2001) (internal quotation marks omitted).
Examining the record as a whole, it is clear that any error in the trial court’s
rulings did not have a substantial and injurious effect or influence on the jury.
First, Dr. Gray-Smith had already testified, without objection, that appellant’s
academic and psychological records suggested that he had antisocial personality
disorder. Additionally, while Dr. Martinez was questioned by the prosecutor
concerning whether appellant met the criteria for antisocial personality disorder,
Dr. Martinez testified that he had not been asked to evaluate the appellant for
antisocial personality disorder and had not performed the necessary assessments
to make that determination. Accordingly, his testimony had no negative impact
on the appellant. Therefore, any error in the trial court’s rulings did not affect
appellant’s substantial rights. See Tex. R. App. P. 44.2(b).
Based on the foregoing, Issues 38 and 39 should be overruled.
Issue 40: Trial Court’s Statement Regarding Sequestration
In Issue 40, appellant contends that the trial court improperly commented
on the weight of the evidence in his statement to the jury concerning being
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sequestered after they had begun deliberating. (Appellant’s Brief, pp. 121-24).
The record reflects that the trial court’s statement was not an improper comment
on the evidence, nor did it prejudice the rights of appellant.
Pertinent Facts
After both sides rested and closed at punishment, the trial court gave the
following instructions to the jury:
THE COURT: All right. Ladies and gentlemen of the jury, that closes
the evidence in the case. Now, it is almost 3:00, so what I'm going to
do, it is too late to start your deliberations because once I charge
you, we have closing arguments, then I can't let you separate, so
what I'm going to do this evening is send you-all home and bring you
back at 9:00 o'clock in the morning, at which time I will read the
charge to you. We will have closing arguments of counsel, and then I
will send you out to deliberate punishment. All right. So remember
the instructions that I have given you earlier, not to discuss any of
the evidence in this case with anyone, not even among yourselves.
Do not watch any of the TV or read the newspaper accounts or any of
those things. Have a good evening, and we will see you back here at
9:00 o'clock tomorrow morning.
MR. JOHNSON: Judge, they're going to need --the future instructions.
THE COURT: Okay. I was going to tell you about bringing –
THE BAILIFF: I will tell them back here.
THE COURT: Mike has some instructions. I've asked Mike to have you,
in the morning, bring with you a change of clothes just in case. I don't
think you are going to need it, but just in case you do not finish your
deliberations tomorrow, then I will have to sequester you as long as
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you are in deliberations, or before you return to court with a verdict
on punishment, then I will have to keep y'all together. And so -- just
bring a change of clothes with you. Anything else, Mike, that I need
to tell them about?
THE BAILIFF: No.
THE COURT: You think that covers it?
THE BAILIFF: Yes, sir.
THE COURT: All right. Very good. Thank y'all. We will see you
tomorrow morning at 9:00 o'clock tomorrow morning.
(RR49: 151-53). After the jury was removed, appellant moved for a mistrial.
(RR49: 157). He argued that the trial court’s statement “I don’t think you are
going to need it” in regards to the change of clothes he instructed them to bring
was an improper comment on the weight of the evidence and an indication from
the bench that the court is of the opinion there is nothing in the case worthy of
deliberation. (RR49: 157-58). When asked to explain what he meant by the
comment, the trial judge stated: “I was only explaining to them why I’m going to
start them in the morning and give them all day long, but if they don’t reach a
verdict, then they need to be prepared to - … - so I could sequester them. And if I
didn’t think that that was necessary, I wouldn’t have told them to bring any
clothes.” (RR49: 158-59).
164
The following morning, the jury heard the argument of counsel and was
given instructions for their deliberation of the special issues. (CR2: 402-07). They
were instructed that it would not be proper for them to arrive at their answers to
the special issues by any other method other than by a full, fair, and free
exchange of the opinion of each individual juror. (CR2: 405). They were further
instructed that they may, and should, deliberate for as long as they felt was
necessary to arrive at their answers to the special issues. (CR2: 405).
Applicable Law
There are no set time limits on jury deliberations, and the length of time
the jury may be held to deliberate is left to the sound discretion of the trial court.
See Guidry v. State, 9 S.W.3d 133, 155 (Tex. Crim. App. 1999). “The court on its
own motion may and on the motion of either party shall, after having given its
charge to the jury, order that the jury not be allowed to separate . . . ." Tex. Code
Crim. Proc. Ann. art. 35.23 (West 2006).
Article 38.05 of the Texas Code of Criminal Procedure provides, in part, that
a judge may not at any stage of the proceeding previous to the return of the
verdict, make any remark calculated to convey to the jury his opinion of the case.
Tex. Code Crim. Proc. Ann. art. 38.05 (West 1979). A trial court improperly
165
comments on the weight of the evidence if it makes a statement that implies
approval of the State’s argument, indicates any disbelief in the defense’s position,
or diminishes the credibility of the defense’s approach to its case. Hoang v. State,
997 S.W.2d 678, 681 (Tex. App.—Texarkana 1999, no pet.); Clark v. State, 878
S.W.2d 224, 226 (Tex. App.—Dallas 1994, no pet.).
To be reversible, a violation of Article 38.05 must be reasonably calculated
to benefit the State or prejudice the rights of the defendant. Becknell v. State, 720
S.W.2d 526, 531 (Tex. Crim. App. 1986); Simon v. State, 203 S.W.3d 581, 592 (Tex.
App.—Houston [14th Dist.] 2006, no pet.). In evaluating whether the court's
comment on the evidence was reasonably calculated to benefit the State or
prejudice the defendant, the reviewing court first examines whether the
comment was material, i.e., if the jury was considering the same issue. Clark, 878
S.W.2d at 226. The reviewing court must then consider the consequences that
probably resulted from the trial court’s comment to determine whether the
comment prejudiced appellant’s rights. Id.; Tex. R. App. P. 44.2(b).
The Trial Court’s Statement Was Not an Improper Comment on the
Weight of the Evidence
During the complained-of statement, the trial court admonished the jury
that they could be sequestered. See Tex. Code Crim. Proc. Ann. art. 35.23. The
166
court instructed them to bring a change of clothes in the event that they were not
finished deliberating at the end of the day. As reflected by the trial court’s
explanation following the removal of the jury, the intent of the statement was
simply to inform the jurors of the possibility of sequestration. The court further
explained that if it did not believe the jury had anything worthy of deliberation he
would not have instructed them to bring a change of clothes.
The record reflects that the trial court’s statement “I don’t think you will
need them” with regard to the extra clothes was an offhand comment with no
calculated intent. It is possible the trial court was trying to put the jurors at ease
about the potential sequestration. It is also possible that the trial court reasonably
believed that the jury would reach a verdict after a full day of deliberation based
on his experience as a judge who has presided over multiple capital murder cases.
Regardless, the trial court’s comment did not imply approval of the State’s
position or indicate any disbelief in the appellant’s position. As such, this
statement was not an improper comment on the weight of the evidence. See
Hoang, 997 S.W.2d at 682.
Even if this comment could be construed, as appellant claims, to convey the
trial court’s perception of the state of the evidence and belief that the jury would
167
not need to give much time in deliberation of the special issues, this comment did
not necessarily benefit the State. The comment contains no expression of the trial
court’s view of how the jury should resolve the special issues. There was
compelling punishment evidence presented by both sides during appellant’s trial.
The trial court’s comment could have just as easily been perceived to mean that
the court did not think it would not take the jurors longer than a day to resolve
the special issues in such a way that resulted in a life sentence for appellant.
To the extent that the trial court’s comment could be perceived as rushing
the jurors in their deliberation with a threat of sequestration, this claim is equally
without merit. The jurors were sent home for the evening following the trial
court’s statement. The following morning, they were given detailed instructions
regarding their deliberation of the special issues. The jurors were instructed that
they may, and should, deliberate for as long as necessary to arrive at their
answers to the special issues. (CR2: 405). Judicial instructions to the jury are
presumed to be effective unless evidence shows the jury did not follow the
directive. See Gamboa, 296 S.W.3d at 580 (a jury is presumed to follow the trial
court’s instructions). There is no indication in the record that the jurors were not
allowed to deliberate as long as they felt was necessary.
168
The Trial Court’s Comment Was Not Calculated to Benefit the State
or Prejudice Appellant
Even if this Court were to find that this was an improper comment on the
weight of the evidence, it does not constitute reversible error. There is simply no
indication that the comment was reasonably calculated to benefit the State or
prejudice the rights of the defendant. See Becknell, 720 S.W.2d at 531; Simon, 203
S.W.3d at 592. First, it was not material. The issue before the jury was resolution
of the special issues, the outcome of which would determine whether appellant
was going to receive a sentence of life or death. The trial court’s comment, which
referred to its belief on the time deliberations might take and whether the jury
would be sequestered, pertained more to the logistics of deliberations and was
immaterial to their resolution of the special issues.
Moreover, a review of the record indicates that the comment did not affect
appellant’s substantial rights. See Tex. R. App. P. 44.2(b). The trial court’s
comment did not inject harmful new facts and was not calculated to deprive
appellant of a fair and impartial trial. The jury instructions included in the
punishment charge – instructing the jurors to deliberate for as long as necessary
and to arrive at their answers to special issues only after a full, fair, and free
exchange of the opinion of each juror – helped to cure any error. Further, in light
169
of the heinousness of appellant’s offense of drowning his two young sons and the
voluminous and compelling punishment evidence presented by the State, it is
unlikely that the trial court’s offhanded comment had any influence on the jury’s
verdict. Issue 40 is without merit and should be overruled.
Issue 42: Legal Sufficiency of Future Dangerousness Special Issue
In Issue 42, appellant contends that there was insufficient evidence to
support the jury’s answer to Special Issue No. 1, the future dangerousness special
issue. Specifically, he contends that he had no prior violent offense convictions
that sent him to the penitentiary. He also contends that the offense was the
result of family conflict about his children that would not exist in prison, thereby
removing the probability that he would constitute a future danger. (Appellant’s
Brief, pp. 126-27). Appellant’s contentions are without merit and should be
overruled.
Applicable Law
The State has the burden of proving the punishment issue of future
dangerousness beyond a reasonable doubt. Tex. Code Crim. Proc. Ann. art.
37.071, §§ 2(b)(1), 2(c). In assessing the legal sufficiency of the evidence of future
dangerousness, this Court views the evidence in the light most favorable to the
170
verdict to determine whether a rational trier of fact could have found beyond a
reasonable doubt that there is a probability that appellant would commit criminal
acts of violence that would constitute a continuing threat to society. See Estrada,
313 S.W.3d at 284.
In its determination of the special issues, the jury is entitled to consider all
the evidence presented at the guilt phase of the trial, in addition to the evidence
presented at the punishment phase. Young, 283 S.W.3d at 863. Some factors the
jury may consider when determining whether appellant will pose a continuing
threat to society include: (1) the circumstances of the offense, including the
defendant’s state of mind and whether he was working alone or with other
parties; (2) the calculated nature of his acts; (3) the forethought and
deliberateness exhibited by the crime’s execution; (4) the existence of a prior
criminal record and the severity of the prior crimes; (5) the defendant’s age and
personal circumstances at the time of the offense; (6) whether the defendant was
acting under duress or the domination of another at the time of the offense; (7)
psychiatric evidence; and (8) character evidence. See Wardrip v. State, 56 S.W.3d
588, 594 (Tex. Crim. App. 2001); Keeton v. State, 724 S.W.2d 58, 61 (Tex. Crim.
App. 1987). The circumstances of the offense and the events surrounding it may
171
be sufficient in some instances to sustain a “yes” answer to the future-
dangerousness special issue. Young, 283 S.W.3d at 863.
The Evidence is Legally Sufficient to Support the Jury’s Finding of
Future Dangerousness
The State presented sufficient evidence to support the jury’s finding of
future dangerousness. First, the gruesome facts of the offense alone were
sufficient to support a finding of future dangerousness. The evidence presented at
trial showed that appellant murdered his two young sons because he was angry
with their mother Kametra. On the Saturday prior to the offense, appellant saw
Kametra with another man at a back-to-school barbeque and became angry that
she was seeing another man and that the man was in his sons’ lives. The evidence
reflects that appellant asked to borrow his friend Christal’s car so that he could
drive Naim to school on his first day, despite not having obtained permission to
take him. On the day of the offense, after being told he could not drive Naim to
school, appellant saw Kametra, Naim and Elijah walking toward Naim’s school.
Appellant stopped the car and forced Kametra and the boys to get into the car.
Appellant then drove them aimlessly around the neighborhood, all the while
threatening to harm Kametra. When appellant stopped the car for a red light,
Kametra saw a constable one lane over. Despite appellant’s warnings not to get
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out of the car, Kametra jumped out of the car and flagged down the constable.
Angry that Kametra disobeyed him, appellant sped off with the boys. He then
took them to a creek, told them to sit in the water, place their heads under the
water, and pretend like they were swimming. Appellant then held their heads
under the water until they drowned. Afterward, appellant attempted to break
into the house where his youngest son Jeremiah was sleeping, but was forced out
of the house by Kametra’s brother.
The calculated and deliberate nature of appellant’s actions in committing
this violent and heinous double-murder was sufficient to support the jury’s
finding of future dangerousness. See Druery v. State, 225 S.W.3d 491, 507 (Tex.
Crim. App. 2007) (the circumstances of an offense can be some of the most
revealing evidence of future dangerousness and may be sufficient to
independently support an affirmative answer to the future dangerousness issue).
The State, however, did not rely solely on the facts of the offense to prove
appellant’s future dangerousness.
The State also presented evidence of appellant’s extensive criminal history,
spanning nearly twenty years, back to when appellant was thirteen-year-old
juvenile. Between January 1993 and August 1994, appellant was arrested seven
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times. Appellant’s offenses included: two burglaries of a habitation, possession of
a stolen vehicle, burglary of a coin operated machine, burglary of a motor vehicle,
unauthorized use of a motor vehicle, and evading arrest. After numerous
attempts to place appellant on probation and home supervision, appellant was
confined to Daytop Village, where appellant received individual and group
counseling. However, appellant was unable to follow the rules, and after
numerous infractions, concluding with his assaulting the same juvenile twice in
one day, appellant was discharged from the facility on July 1, 1995.
Following his discharge from Daytop Village, appellant was sent to TYC,
where his violent behavior and inability to follow the rules continued. In general,
appellant was explosive and disrespectful to the TYC staff. This was particularly
evident in his treatment of female staff. On one occasion appellant approached
female staff member Nina Adams as she was teaching class, and began bumping
his erect penis against her leg. On several other occasions, appellant called female
staff bitches, fat mother fuckers, and “ho’s.” Appellant’s infractions, however,
were not restricted to the TYC staff. Appellant was involved in a three-on-one
fight in the dormitory restroom in which he punched a juvenile that was being
held down on a toilet. Appellant was also caught with razor blades and crushed
174
aspirin. Appellant admitted that he had stolen the razor blades and was trading
the aspirin for snacks.
After he was released from TYC, appellant continued to have trouble with
the law. Appellant picked up three new offenses in 1997: burglary of a vehicle,
evading arrest, and theft of check. The following year, appellant was arrested for
burglary of a vehicle. Appellant’s encounters with the law continued in 1999,
when appellant was arrested on a warrant when he was stopped, along with two
other men, during an investigation into a burglary. While the officers determined
that the appellant and other men were not involved in the burglary, a loaded
shotgun was found inside the vehicle and a bag of marijuana and screwdriver
were found tossed just outside of the vehicle.
Additionally, the State presented substantial evidence of appellant’s
violence against women. In 2001, appellant was caught peering in the window of
a female neighbor. When the neighbor confronted appellant, he denied looking in
the window and threatened to beat her if she continued to say that he had.
Appellant also exhibited physical violence toward his sister Sekinah. In 2009,
appellant took a hammer and hit her twice in the back of the head. Appellant was
sentenced to five years’ deferred adjudication for the charge of aggravated
175
assault with a deadly weapon. Appellant received probation at the request of his
sister, who wanted him to be able to provide for his children. Appellant was on
probation for this offense when he committed the instant capital murder.
The State also presented considerable evidence concerning appellant’s
violent relationship with Kametra. Appellant began a sexual relationship with
Kametra when he was twenty-five and she was fifteen. Appellant began hitting
her only a few short weeks into their relationship. The jury heard how appellant
repeatedly physically abused Kametra, even when she was pregnant with his
three children. After learning that she was pregnant with their first child,
Appellant kicked her in the stomach in an attempt to cause a miscarriage. When
that failed, appellant suggested that she drink bleach or use a wire hanger.
The jury also heard about two particularly violent encounters Kametra had
with the appellant in the months preceding the capital murder. In February 2011,
appellant punched Kametra in the face, forced his way into her mother’s house,
and grabbed Naim. Appellant then kicked down a door in order to flee the house.
Approximately one month later, appellant forced his way into the car Kametra
was driving when she came to pick the boys up from a visit with him. Appellant
demanded that she take him to the store, and when she refused to take him,
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Appellant choked her until she was unconscious. When she woke up, she was
inside the house where appellant was living with his brother, but had no
recollection of how she got there. Appellant, who was still angry that she had
refused his earlier demand, hit Kametra in the head with a heavy object she
believed was a gun, when she said she needed to leave. Later, when she
convinced appellant that she needed to return her sister’s car, appellant insisted
on going with her. When Kametra’s sister saw the bruised and bloody condition
she was in, she called the police. Appellant then grabbed Elijah and told Kametra
she and Jeremiah had to come with him or he would kill Elijah. When appellant
saw the police coming, he threw Elijah to the ground and took off running.
The jury also heard testimony concerning appellant’s actions during his
arrest for the instant offense. Appellant resisted when officers tried to handcuff
him, and it ultimately took four officers to restrain him. Appellant was tased three
times before the officers were finally able to place him in handcuffs.
Moreover, while in jail awaiting his trial for capital murder, appellant
continued to have disciplinary infractions and violent outbursts. On October 25,
2011, appellant refused to comply with instructions from an officer when he was
told he was going to be moved to a different cell. Appellant refused to move and
177
told the officer that he would have to physically be picked up and moved to the
other cell. Ultimately, appellant was picked up and moved by two officers.
On April 25, 2012, appellant refused to return a breakfast tray after
receiving a different breakfast from the one he ordinarily received. Appellant
swung at Officer Thomas when the officer went into appellant’s cell to retrieve
the tray. It took approximately three to four officers to restrain the appellant.
On November 24, 2012, in a jail phone call to his brother Jamal, appellant
told his brother that the only reason he had not “fired off on some of these fools”
was because he wanted to keep up with his sports and visits.
Finally, on March 26, 2013, appellant fought with another inmate over the
television. Officer Moreno observed appellant and another inmate in a fighting
stance. The other inmate received scratches to his chest and appellant was given
fifteen days’ full restrictions following the fight.
It is clear that the State presented sufficient evidence of appellant’s future
dangerousness. Appellant’s argument that he lacked any prior violent convictions
which sent him to the penitentiary ignores the evidence presented by the State
that appellant had committed numerous unadjudicated violent assaults, including
the assaults against Kametra that occurred in the months preceding the instant
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offense. It also ignores the fact that he was on probation for aggravated assault
with a deadly weapon at the time he committed capital murder. Viewed in the
light most favorable to the verdict, appellant’s criminal history – whether or not it
involved trips to prison – evidence a violent, unrepentant man.
The state presented sufficient evidence from which the jury could find
beyond a reasonable doubt that there is a probability that appellant would
commit criminal acts of violence that would constitute a continuing threat to
society. Thus, the evidence was legally sufficient to support the jury’s answer to
the future dangerousness special issue, and Issue 42 should be overruled.
Issues 43-54: Federal Constitutional Issues
In Issues 43 through 54, appellant challenges the constitutionality of the
Texas death penalty statute. He acknowledges that these issues have been
previously overruled and are asserted mainly to preserve each issue for further
review in the federal courts. (Appellant’s Brief, pp. 128-36).
In Issue 43, appellant contends that the statute under which he was
sentenced to death is unconstitutional in violation of the cruel and unusual
punishment prohibition of the Eighth Amendment because it allows the jury too
much discretion to determine who should live and who should die and because it
179
lacks the minimal standards and guidance necessary for the jury to avoid the
arbitrary and capricious imposition of the death penalty.
In Issue 44, appellant contends that the statute under which he was
sentenced to death violates the due process requirements of the Fourteenth
Amendment because it implicitly puts the burden of proving the mitigation
special issue on appellant rather than requiring a jury finding against appellant on
that issue under the beyond a reasonable doubt standard.
In Issue 45, appellant contends that the trial court erred in denying his
motion to hold Article 37.071, § 2(e) and (f) concerning the burden of proof
unconstitutional as a violation of Article I, §§ 10 and 13 of the Texas Constitution.
In Issue 46, appellant contends that the Texas death penalty scheme
violates due process protections of the United States Constitution because the
punishment special issue related to mitigation fails to require the State to prove
the absence of sufficient mitigating circumstances beyond a reasonable doubt,
contrary to Apprendi v. New Jersey, 530 U.S. 466 (2000), and its progeny.
In Issue 47, appellant contends that the Texas death penalty scheme
violated his rights against cruel and unusual punishment and to due process of
law under the Eighth and Fourteenth Amendments to the United States
180
Constitution by requiring at least ten “no” votes for the jury to return a negative
answer to the punishment special issues.
In Issue 48, appellant contends that the Texas death penalty scheme
violated his rights against cruel and unusual punishment, to an impartial jury and
to due process of law under the Sixth, Eighth, and Fourteenth Amendments of the
United States Constitution because of vague, undefined terms in the jury
instructions at the punishment phase of the trial that effectively determine the
difference between a life sentence and the imposition of the death penalty.
In Issue 49, appellant contends that the trial court erred in overruling his
motion to hold Art. 37.071, § 2(e) and (f) unconstitutional because said statute
fails to require the issue of mitigation be considered by the jury.
In Issue 50, appellant contends that the mitigation special issue is
unconstitutional because it fails to place the burden of proof on the State
regarding aggravating evidence.
In Issue 51, he claims that the mitigation special issue is unconstitutional
under the Eighth and Fourteenth Amendments to the United States Constitution
because it permits the very type of open-ended discretion condemned by the
United States Supreme Court in Furman v. Georgia, 408 U.S. 238 (1972).
181
In Issue 52, appellant contends that Texas’ statutory capital sentencing
scheme is unconstitutional under the Eighth and Fourteenth Amendments
because it does not permit meaningful appellate review.
In Issue 53, appellant contends that the trial court erred in overruling his
motion to quash the indictment as being unconstitutional based on the
enumerated constitutional defects of Texas capital-murder death-penalty law.
In Issue 54, he contends that the cumulative effect of the above-
enumerated constitutional violations denied him due process of law in violation
of the Fifth and Fourteenth Amendments of the United States Constitution.
Appellant invites the Court to revisit its stand on these issues, which he
concedes have all been previously overruled. See App. Brief, p. 128; Saldano, 232
S.W.3d at 107-09 (overruling multiple challenges to death penalty statute);
Escamilla v. State, 143 S.W.3d 814, 838-829 (Tex. Crim. App. 2004) (same).
Appellant presents no new arguments for the State to address. This Court should
decline appellant’s invitation to revisit these legal claims and overrule Issues 43
through 54.
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PRAYER
The State prays that this Honorable Court will overrule appellant’s issues on
appeal and affirm the trial court’s judgment.
Respectfully submitted,
/s/ Jaclyn O’Connor Lambert
__________________
Susan Hawk Jaclyn O’Connor Lambert
Criminal District Attorney Assistant District Attorney
Dallas County, Texas State Bar No. 24049262
Frank Crowley Courts Building
133 N. Riverfront Blvd., LB-19
Dallas, Texas 75207-4399
(214) 653-3625
(214) 653-3643 fax
183
CERTIFICATE OF COMPLIANCE
I hereby certify that there are 37,663 words in this document excluding the
statement regarding oral argument, table of contents, index of authorities,
statement of the case, signature, certificate of service, and certificate of
compliance. This number exceeds the maximum allowable number of words
provided in the Texas Rules of Appellate Procedure. See Tex. R. App. P.
9.4(i)(2)(A). The State is filing a Motion to Exceed the Word Count
contemporaneously with this brief.
/s/ Jaclyn O’Connor Lambert
__________________
Jaclyn O’Connor Lambert
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing brief was served on appellant’s
attorney, John Tatum, 990 S. Sherman Street, Richardson, Texas 75081,
jtatumlaw@gmail.com, via email and U.S. mail on January 30, 2015.
/s/ Jaclyn O’Connor Lambert
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Jaclyn O’Connor Lambert
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