Prevost, Jeffery Keith

AP-77,039
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
February 6, 2015 Transmitted 2/5/2015 3:02:57 PM
Accepted 2/6/2015 8:59:58 AM
ABEL ACOSTA
NO. AP-77039 CLERK

_______________________________________________

IN THE TEXAS COURT OF
CRIMINAL APPEALS
________________________________________________

JEFFREY KEITH PREVOST
VS.

THE STATE OF TEXAS
________________________________________________

Capital Murder Conviction on Appeal from the
District Court of Harris County, Texas
351st Judicial District
Cause No. 1414421
________________________________________

APPELLANT'S BRIEF
_______________________________________________

APPELLANT WAIVES DOUGLAS M. DURHAM
ORAL ARGUMENT State Bar Number:06278450
2800 Post Oak Blvd. Suite 4100
Houston, Texas 77002
(832)390-2252 Telephone
(832)390-2350 Facsimile
ATTORNEY FOR APPELLANT
JEFFREY KEITH PREVOST
 IDENTITY OF PARTIES AND COUNSEL

Pursuant to TEX.R.APP.P. 38.1(a), the following is a list of all interested parties

in this cause:

1. JEFFREY KEITH PREVOST- Defendant/Appellant

2. R. P. “Skip” Cornelius
State Bar No. 04831500
Laura Duemer Cornelius
State Bar No. 04831200
Defendant/Appellant’s Trial Counsel
2028 Buffaloe Terrace
Houston, Texas 77019

3. Allen Tanner
State Bar No. 19637100
Defendant/Appellant’s Trial Counsel
917 Franklin Street, Suite 550
Houston, Texas 77002

3. DOUGLAS M. DURHAM - Appellate Counsel for Defendant/Appellant
State Bar No. 06278450
Defendant/Appellant’s Counsel on Appeal
2800 Post Oak Blvd. Ste. 4100
Houston, Texas 77056

4. Devon Anderson- District Attorney for Harris County, Texas
1201 Franklin, Suite 600
Houston, Texas 77002

5. Anna Emmons - Assistant District Attorney for Harris County, Texas
1201 Franklin, Suite 600
Houston, Texas 77002

6. Craig Goodhart- Assistant District Attorney for Harris County, Texas
1201 Franklin, Suite 600

ii
 Houston, Texas 77002

7. Allan Curry, Chief Appellate Division
District Attorney’s Office for Harris County, Texas
1201 Franklin, Suite 600
Houston, Texas 77002

____/s/_____________________
DOUGLAS M. DURHAM
2800 Post Oak Blvd. Ste. 4100
Houston, Texas 77056

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 TABLE OF CONTENTS

Page
Identity of Parties and Counsel. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

Table of Contents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

Index of Authorities (Cases). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v

Constitutions and Statues. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vii

Preliminary Statement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Statement Regarding Oral Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Statement of Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2

Questions Presented. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46

WHETHER THE STATE’S FAILURE TO FILE WRITTEN NOTICE OF
“INTENT TO SEEK THE DEATH PENALTY” VIOLATES DUE
PROCESS UNDER THE FIFTH AND FOURTEENTH AMENDMENT?

WHETHER THE STATE’S FAILURE TO FILE WRITTEN NOTICE OF
“INTENT TO SEEK THE DEATH PENALTY VIOLATES DUE COURSE
OF LAW UNDER ARTICLE ONE, SECTION NINETEEN OF THE
TEXAS CONSTITUTION?

WHETHER THE STATE’S FAILURE TO FILE WRITTEN NOTICE OF
“INTENT TO SEEK THE DEATH PENALTY” AS REQUIRED BY LAW
WAS FUNDAMENTAL ERROR?

WHETHER THE TRIAL COURT ERRED BY FAILING TO FIND
TEXAS CODE OF CRIMINAL PROCEDURE ARTICLE 37.071
UNCONSTITUTIONAL?

WHETHER THE TRIAL COURT ERRED BY FINDING TEXAS PENAL
CODE ART. 19.02-19.03 UNCONSTITUTIONAL?

iv
 WHETHER THE EXCUSAL OF PROSPECTIVE JUROR 77 (WILLIAM
HERED) BASED ON THE STATE’S CHALLENGE FOR CAUSE (OVER
DEFENSE OBJECTION) WAS ERROR BY THE TRIAL COURT?

WHETHER THE TRIAL COURT ERRED IN DENYING APPELLANT’S
MOTION FOR A MISTRIAL AFTER THE ADMISSION OF IMPROPER
EXTRANEOUS OFFENSE EVIDENCE?

WHETHER THE TRIAL COURT ERRED IN DENYING APPELLANT’S
MOTION FOR A MISTRIAL AFTER THE ADMISSION OF VICKI
ALEXANDER’S UNRESPONSIVE AND PREJUDICIAL TESTIMONY?

WHETHER THE TRIAL COURT ERRED IN DENYING APPELLANT’S
MOTION FOR A MISTRIAL AFTER THE ADMISSION OF THOMESA
HOLLIN’S UNRESPONSIVE AND PREJUDICIAL TESTIMONY?

WHETHER THE TRIAL COURT ERRED IN DENYING APPELLANT’S
MOTION FOR A MISTRIAL AFTER THE ADMISSION OF AN
IMPROPER AND PREJUDICIAL QUESTION BY THE PROSECUTOR?

Statement of Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Point of Error One. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46

THE STATE’S FAILURE TO FILE WRITTEN NOTICE OF “INTENT TO
SEEK THE DEATH PENALTY” VIOLATES DUE PROCESS UNDER
THE FIFTH AND FOURTEENTH AMENDMENT

Argument and Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .46

Point of Error Two.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46

THE STATE’S FAILURE TO FILE WRITTEN NOTICE OF “INTENT TO
SEEK THE DEATH PENALTY VIOLATES DUE COURSE OF LAW
UNDER ARTICLE ONE, SECTION NINETEEN OF THE TEXAS
CONSTITUTION

Argument and Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .46

v
Point of Error Three.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47

THE STATE’S FAILURE TO FILE WRITTEN NOTICE OF “INTENT TO
SEEK THE DEATH PENALTY” AS REQUIRED BY LAW WAS
FUNDAMENTAL ERROR

Argument and Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .47

Point of Error Four . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .48

THE TRIAL COURT ERRED BY FAILING TO FIND TEXAS CODE OF
CRIMINAL PROCEDURE ARTICLE 37.071 UNCONSTITUTIONAL

Argument and Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .48

Point of Error Five.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49

THE TRIAL COURT ERRED BY FINDING TEXAS PENAL CODE ART.
19.02-19.03 UNCONSTITUTIONAL

Argument and Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .49

Point of Error Six. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50

THE EXCUSAL OF PROSPECTIVE JUROR 77 (WILLIAM HERED)
BASED ON THE STATE’S CHALLENGE FOR CAUSE (OVER
DEFENSE OBJECTION) WAS ERROR BY THE TRIAL COURT

Argument and Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .50

Point of Error Seven . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53

THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION
FOR A MISTRIAL AFTER THE ADMISSION OF IMPROPER
EXTRANEOUS OFFENSE EVIDENCE

Factual Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53

vi
Standard of Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54

Argument and Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .54

Point of Error Eight . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57

THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION
FOR A MISTRIAL AFTER THE ADMISSION OF VICKI ALEXANDER’S
UNRESPONSIVE AND PREJUDICIAL TESTIMONY

Factual Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57

Argument and Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .58

Point of Error Nine . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61

THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION
FOR A MISTRIAL AFTER THE ADMISSION OF THOMESA HOLLIN’S
UNRESPONSIVE AND PREJUDICIAL TESTIMONY

Factual Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61

Argument and Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .62

Point of Error Ten . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62

THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION
FOR A MISTRIAL AFTER THE ADMISSION OF AN IMPROPER AND
PREJUDICIAL QUESTION BY THE PROSECUTOR

Factual Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62

Argument and Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .63

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .64

Certificate of Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .65

vii
Certificate of Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66

viii
 INDEX OF AUTHORITY
(CASES)
Page

Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985).. . . . . . . . . . . . . .47

Apprendi v. New Jersey, 530 U.S. 466 (2000) . . . . . . . . . . . . . . . . . . . . . . . . 3, 5, 51

Brooks v. State, 847 S.W.2d 247 (Tex. Crim. App. 1993) . . . . . . . . . . . . . . . . . . . 48

Byrd v. State, 2008 Tex. App. LEXIS 6630 (Tex. App. - Forth Worth 2008). . . . .50

Clark v. State, 365 S.W.3d 333 (Tex. Crim. App. 2012) . . . . . . . . . . . . . . . . . . . . 47

Coker v. Georgia, 433 U.S. 584 (1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52

Ex parte Patterson, 740 S.W.2d 766 (Tex. Crim. App. 1993). .. . . . . . . . . . . . . . . 48

Ex parte Watkins, 489 S.W.2d 617, 618 (Tex. Crim. App. 1973) . . . . . . . . . . . . . .47

Flores v. Johnson, 201 F.3d 456 (5th Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . .4, 6

Hill v. State, 817 S.W.2d 816 (Tex. App.– Eastland 1991). . . . . . . . . . . . . . . . . . . 62

Jones v. United States, 566 U.S. 227 (1999). . . . . . . . . . . . . . . . . . . . . . . . . . 3, 5,50

Moraguez v. State, 701 S.W.2d 902 (Tex. Crim. App. 1986). . . . . . . . . . . . . . . . . . 3

Mullaney v. Wilbur, 421 U.S. 684 (1975) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 5, 52

Perry v. State, 158 S.W.3d 438 (Tex. Crim. App. 2004). . . . . . . . . . . . . . . . . . . . .51

Smith v. State, 2012 Tex. App. LEXIS 10056 (Tex. App. - Fort Worth 2012) . . . .48

State v. ex rel Lykos v. Fine, 330 S.W.3d 904 (Tex. Crim. App. 2011). . . . . . . . . 49

ix
 CONSTITUTIONS AND STATUTES Page

TEX. PENAL CODE § 19.03(a)(8).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1

TEX. CODE OF CRIM. PRO. § 1.14. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .49

TEX. CODE OF CRIM. PRO. § 37.01. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

TEX. CODE OF CRIM. PRO. § 37.071. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

U. S. CONST. AMEND. V . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v, 46

U. S. CONST. AMEND. VIII . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

U. S. CONST. AMEND. XIV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v, 46

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 NO. AP-77039
_______________________________________________

IN THE TEXAS COURT OF
CRIMINAL APPEALS
________________________________________________

JEFFREY KEITH PREVOST

VS.

THE STATE OF TEXAS
________________________________________________

Capital Murder Conviction on Appeal from the
District Court of Harris County, Texas
351st Judicial District
Cause No. 1414421
_______________________________________________

APPELLANT'S BRIEF
_______________________________________________

TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL APPEALS:

COMES NOW, JEFFREY KEITH PREVOST, Appellant in the above styled

and numbered cause and would respectfully show the Court as follows:

PRELIMINARY STATEMENT

This is an appeal from a sentence of death for the offense of Capital Murder

as proscribed by Section 19.03(a)(8) of the Texas Penal Code. A Harris County

grand jury returned a one paragraph indictment on the 15th day of February 2014.

(CR-I-002). The first paragraph [omitting the formal parts] alleged that:

1
 “JEFFREY KEITH PREVOST, hereafter styled the Defendant, on or about
May 20, 2011, did then and there unlawfully, during the same criminal
transaction, intentionally and knowingly cause the death of SHERRY
WHITE, by shooting SHERRY WHITE with a deadly weapon, to wit: a
firearm, and by stabbing SHERRY WHITE with a deadly weapon, to wit: a
knife, and intentionally and knowingly cause the death of KYLE
LAVERGE, by shooting KYLE LAVERGE with a deadly weapon, to wit: a
firearm. (CR-I; p. 12).

On March 24, 2014, a jury found defendant guilty of Capital Murder. (XIX- p.

7). On April 5, 2014, the jury unanimously found beyond a reasonable doubt that the

answer to special issue one (1) was “yes” and the answer to special issue two (2) was

“no” the Court order Appellant punishment at death. (CR-VII; p. 1502-1503 and RR-

XXX-p. 3-4). Notice of Appeal was timely filed on April 5, 2014. (CR-VII; p. 1504-

1506). The Court certified Appellant’s right to Appeal on April 5, 2014. (CR-VII; p.

1507).

STATEMENT OF FACTS

(i) PRELIMINARY MATTERS

From on or about May 11, 2011 through April 2, 2014 the Defense filed

various pre-trial motions, including but not limited to: 1) Motions for Psychiatric

Examination to determine both Competency and Sanity; [CR-I; p. 7-9]; 2) Motion

for appointment of an Investigator; [CR-I; p. 31]; 3) Motions in Limine;[CR-I; p.59];

4) Motion to Suppress evidence; [CR-I; p. 67-69]; 5) Various Motions for

Discovery; [CR-I; p. 69-77; p. 136; p. 140]; 6) Motion for Hearing on Admissibility

2
of any statement by The Defendant Whether Written Or Oral or Evidence resulting

from same; [CR-I; p. 094]; 7) Motion to Suppress Confession1; [CR-I; p. 099]; 8)

Motion to preclude the death penalty as a sentencing option and to declare Texas

Code of Criminal Procedure Article 37.071 unconstitutional citing Jones v. United

States 566 U.S. 227 (1999); Apprendi v. New Jersey, 530 U.S. 466 (2000); and Ring

v. Arizona, 536 U.S. 584 (2002). [CR-I; p.103]; 9) Motion to Declare the Texas

Penal Code Sections 19.02-19.03 Unconstitutional Under the Eighth Amendment and

citing Mullaney v. Wilbur, 421 U.S. 684 (1975). [CR-I; p. 110]; 10) Motion to

Preclude the offer of Extraneous Offenses. [CR-I; p. 117]; 11) Motion for Jury

Instructions to Inform Jurors of Result of Life Sentence if they can’t answer any

special issue. [CR-I; p. 125]; 12) Motion to List Witnesses and Request for Criminal

Histories. [CR-I; p.151]; 13) Motion to Propound specific questions to Veniremen

re: Burden of Proof on Special Issue: Mitigation. [CR-I; p.164]; 14) Motion to

Declare the Statutory Definition of Mitigating Evidence Unconstitutional. [CR-I; p.

168];15) Motion to hold Tex. Code of Criminal Procedure Art. 37.01 and Art. 37.071

1
The Motion to Suppress Confession was filed without an Order. (CR-I; p. 67-69).
There was no hearing on the Motion to Suppress. (RR-I-XXXIX). Further, the audio and video
recording of Appellant’s interrogation where he described killing the two victims (State’s Exhibit
197) was admitted into evidence with Allen Tanner stating “no objection.” (RR-XXI; p. 148).
This waives any error regarding issues of admissibility previously raised in the Motion to for
Hearing on Admissibility of any statement or in Motion to Suppress. See Moraguez v. State, 701
S.W.2d 902 (Tex. Crim. App. 1986).

3
sec. 2(a)Unconstitutional Wherein Prosecutor Have Unfettered Discretion To Seek

Death Penalty. [CR-I; p. 186; p. 199; p.1413];16) Motion to Hold Art. 37.071

Unconstitutional citing Flores v. Johnson, 210 F.3d 456 (5th Cir. 2000)[CR-I; p.

186]; 17) Motion to Declare Art. 37.071 Facially Unconstitutional for Vagueness

[CR-I; p. 199]; 18) Motion Requesting Instruction to the Jury Regarding Residual

Doubt as Mitigation and Order of the Court. [CR-I; p. 244].

(ii) PRELIMINARY ORDERS BY COURT

On May 24, 2011, the Court entered orders granting the Appellant’s Motions

for Psychiatric Evaluations for both Competency and Sanity. (CR-I; p. 10 and p. 42).

On or about June 29, 2011, Appellant was interviewed by Stephen P. McCary Phd., a

clinical psychologist, who determined that Appellant was both competent to stand

trial and sane at the time of the offense. (CR-I; p. 43-47 and p. 48-52). On that same

day, Dr. McCrary diagnosed [following the DSM-IV-TR (2000)] Appellant with a

“mood disorder not otherwise specified” with “delusional and jealous type” features.

(CR-I; p. 46 and p. 51). On January 6, 2014, the Court granted Appellant’s Motion

to appoint an investigator.2 (CR-I; p. 32). On February 17, 2014, the Court denied

Appellant’s Motion to Preclude the Death Penalty as a Sentencing Option And to

2
Buddy Sledge, Private Investigator License No. A13785 was appointed and to be
compensated by the Treasurer of Harris County, Texas. (CR-I; 32).

4
Declare Tex. Code of Crim. Pro. 37.071 Unconstitutional citing Jones v. United

States 566 U.S. 227 (1999); Apprendi v. New Jersey, 530 U.S. 466 (2000) and Ring

v. Arizona, 536 U.S. 584 (2002). (CR-I; p. 109). On February 17, 2014 the Court

denied Appellant’s Motion to Declare the Texas Penal Code Sections 19.02-19.03

Unconstitutional Under the Eighth Amendment citing Mullaney v. Wilbur, 421 U.S.

684 (1975). (CR-I; p. 116). On February 17, 2014 the Court denied Appellant’s

Motion to Preclude the offer of Extraneous Offenses (CR-I; p. 124). On February 17,

2014 the Court denied Appellant’s Motion for Jury Instructions to Inform Jurors of

Result of Life Sentence if they can’t answer any special issue then the Defendant

will be given Life in Prison. (CR-I; p. 127). On March 7, 2014 the Court granted

Appellant’s Motion to List Witnesses and Request for Criminal Histories. (CR-I; p.

163). On February 17, 2014 the Court denied Appellant’s Motion to Propound

specific questions to Veniremen re: Burden of Proof on Special Issue: Mitigation.

(CR-I; p.167). On February 17, 2014 the Court denied Appellant’s Motion to

Declare the Statutory Definition of Mitigating Evidence Unconstitutional. (CR-I; p.

176). On February 17, 2014 the Court denied Appellant’s Motion to hold Tex. Code

of Criminal Procedure Art. 37.01 and Art. 37.071 sec. 2(a)Unconstitutional Wherein

Prosecutor Have Unfettered Discretion To Seek Death Penalty.(CR-I; p. 189). On

February 17, 2014 the Court denied Appellant’s Motion to Hold 37.071

5
Unconstitutional citing Flores v. Johnson, 210 F.3d 456 (5th Cir. 2000). (CR-I; p.

205). On February 17, 2014 the Court denied Appellant’s Motion to Declare Art.

37.071 Facially Unconstitutional for Vagueness. (CR-I; p. 212). On February 17,

2014 the Court denied Appellant’s Motion Requesting Instruction to the Jury

Regarding Residual Doubt as Mitigation and Order of the Court. (CR-I; p. 247).

(iii) JURY SELECTION PHASE OF TRIAL

On February 17, 2014 the jury selection phase of the trial began. (RR-III; p.

4). The first panel of one hundred and twenty (120) prospective jurors were

summoned to the 351st District Court, assigned numbers from one (1) to one hundred

and twenty (120). (RR-III; p. 1-276). One hundred and nineteen (119) jurors arrived

and were seated. (RR-III; p. 5 and p. 137). Juror number 94 failed to appear and a

capias was issued. (RR-III; p. 137). The parties excused thirty-one (31) prospective

jurors by agreement3 after review of juror questionnaires. (RR-III; p.4; p. 222 and p.

225). Thereafter, the Judge conducted his general “voir dire” of the first venire panel

wherein he explained certain principles of law.4 (RR-III; p. 4-51). During the Court’s

3
The parties excused by agreement the following prospective jurors from the panel
numbered one (1) to one hundred twenty (120) as follows: 10; 20, 25, 29, 32, 36, 38, 40, 42, 52,
57, 60, 63, 67, 68, 69, 70, 71, 72, 87, 88, 89, 90, 93, 99, 101, 108, 112, 113, 118 and 120. (RR-
III; p. 4-5 and p. 225). Juror 58, having qualified to serve, was instructed to return on February
18, 2014 due to a schedule conflict. (RR-III; p. 4-5).
4
The Court discussed the following principles of law including but not limited to:
1) the presumption of innocence; 2) that a grand jury indictment is no evidence of guilt; 3) that
the State has burden of proof and it never shifts to the Defendant; 4) the principle that the State

6
general voir dire, forty-seven (47) additional prospective jurors were excused5. (RR-

III; 222-225). Forty-two (42) jurors were instructed to return on various dates for

individual voir dire6. (RR-III; 226-229). On February 18, 2014, a second panel of

one hundred and twenty prospective jurors were summoned to the 351st District

Court. (RR-IV; p. 1-234). All one hundred and twenty (120) summoned jurors

arrived and were seated according to their assigned numbers from one hundred

twenty-one (121) to two hundred and forty (240). (RR-IV; p. 1-234). In addition,

juror number 58 also appeared as ordered by the Court on February 17, 2014. (RR-

III; 4-5 and RR-IV; p. 81).The parties excused sixty-eight (68) prospective jurors by

agreement7 after review of juror questionnaires. (RR-IV; p. 81, p. 132 and p. 187).

must prove the accused’s guilt beyond a reasonable doubt; 5) the accused has the Fifth
Amendment Right against self-incrimination and should he exercise that right, no juror may draw
an adverse inference there from; 6) explanation of grand jury process; and 7) the elements of the
indictment. (RR-III; p. 39-52).
5
The Court excused (agreed to by both parties) prospective jurors numbered 2-7; 9;
15; 17; 24; 28; 30; 31; 33; 37; 39; 41; 43; 44; 46; 47; 50; 51; 54; 59; 62; 65; 66; 74; 75; 78; 80;
84; 91; 95-97; 100; 106;107; 110;111;115; 116; 119. (RR-III; p. 222 and 225).
6
Jurors numbered 1, 8, 11, 12 and 13 were told to return for individual voir dire on
2/19/2014 at 8:30 am; Jurors 14, 16, and 18 on 2/19/2014 at 1:00 p.m.; Jurors 19, 21, 22, 23, and
26 on 2/20/2014 at 8:30 a.m.; Jurors 27, 34, 35 at 1:30 p.m. on 2/20/2014; Jurors 45, 48; 49; 53,
and 55 at 8:30 a.m. on 2/21/2014; Jurors 56 and 61 at 1:00 p.m. on 2/21/2014; Jurors 64, 73, 76,
77, and 79 at 8:30 a.m. on 2/24/2014; Jurors 81, 82 and 83 at 1:00 p.m. on 2/24/2014; Jurors 85,
86, 92, 98 and 102 at 8:30 a.m. on 2/25/2014; Jurors 103, 104, and 105 at 1:00 p.m. on
2/25/2014; Jurors 109, 114, and 117 at 8:30 a.m. on 2/26/2014. (RR-III; 226-229).
7
The parties excused by agreement the following prospective jurors from the
second panel numbered one hundred twenty-one (121) to two hundred and forty (240) as follows:
58; 122; 124; 126; 127; 132; 133; 137; 138; 140-148; 150; 152-155; 159; 162; 164; 166; 167;

7
Thereafter, the Judge conducted his general “voir dire” of the second venire panel

wherein he explained general principles of criminal law.8 (RR-IV; p. 34-201). Forty-

nine (49) prospective jurors were instructed to return on various dates for individual

voir.9 On February 19, 2014, eight prospective Jurors were questioned individually.10

171-174; 176; 177; 179; 182; 183; 186; 187; 190-193; 195; 199-201; 204; 205; 208; 209; 213;
214; 216;217; 219-224; 226; 229; 232-234;238; 239. (RR-IV; p. 81, p. 132 and p. 187).

8
The Court discussed the following principles of law including but not limited to:
1) the presumption of innocence; 2) that a grand jury indictment is no evidence of guilt; 3) that
the State has burden of proof and it never shifts to the Defendant; 4) the principle that the State
must prove the accused’s guilt beyond a reasonable doubt; 5) the accused has the Fifth
Amendment Right against self-incrimination and should he exercise that right, no juror may draw
an adverse inference there from; 6) explanation of grand jury process; and 7) the elements of the
indictment. (RR-IV; p. 34-201).
9
Jurors numbered 94 and 121 were told to return on February 26, 2014 at 8:30 a.m.
Jurors 123, 124, and 128 were told to return on February 26, 2014 at 1:00 p.m. (RR-IV; p. 202).
Jurors numbered 129, 130, 131, 134 and 135 were told to return on February 27, 2014 at 8:30
a.m. Jurors 136, 139, and 149 were told to return on February 27, 2014 at 1:00 p.m. (RR-IV; p.
202). Jurors numbered 151, 156, 157, 158, and 160 were told to return on February 28, 2014 at
8:30 a.m. Jurors 161, 163, and 165 were told to return on February 28, 2014 at 1:00 p.m. (RR-IV;
p. 203). Jurors 168, 169, 170, 175 and 178 were told to return on March 3, 2014 at 8:30 a.m.
(RR-IV; p. 203). Jurors 180, 181 and 184 were told to return on March 3, 2014 at 1:00 p.m.
Jurors 185, 188, 194, 196, and 197 were told to return on March 4, 2014 at 8:30 a.m. (RR-IV; p.
203). Jurors 198, 202, 203 were told to return on March 4, 2014 at 1:00 p.m. (RR-IV; p. 203).
Jurors 206, 207, 210, 211, and 212 were told to return on March 5, 2014 at 8:30 a.m. (RR-IV; p.
203). Jurors 225, 227, 228, 231, 236 were told to return on March 6, 2014 at 8:30 a.m. (RR-IV;
p. 203). Jurors 237 and 240 were told to return on March 6, 2014 at 1:00 p.m. (RR-IV; p. 203).
10
Prospective Jurors 1, 8, 11, 12, 13, 14, 16, and 18 were questioned individually.
(RR-V; p. 5-211). Prospective Juror 1 (Bobby Cox) having qualified to serve, was instructed to
return on March 24, 2014 at 8:30 a.m. (RR-V; p. 32). Prospective Juror 8 (Charles Kohler) was
challenged for Cause by the Defense and it was granted. (RR-V; p. 39). Prospective Juror 11
(Tameka Hornsby) was challenged for Cause by the State (denied) and having qualified to serve,
was instructed to return on March 24, 2014 at 8:30 a.m. (RR-V; p. 85). Prospective Juror 12
(Thomas Ryan) was excused by agreement. (RR-V; p. 88). Prospective Juror 13 (Angela
Thompson) was excused on challenge for Cause by the State. (RR-V; p. 123). Prospective Juror

8
(RR-V; p. 5-211). On February 20, seven prospective Jurors were questioned

individually.11 (RR-VI; p. 5-289). On February 21, 2014 seven (7) prospective

Jurors were questioned individually.12 On February 24, 2014, eight (8) prospective

Jurors were questioned individually.13 (RR-VIII; p. 3-276). On February 25, 2014,

14 (Aaron Villarreal) was excused on challenge for Cause by the State. (RR-V; 128).
Prospective Juror 16 (Angela Burroughs) having qualified to serve, was instructed to return on
March 24, 2014 at 8:30 a.m. (RR-V; p. 175). Prospective Juror 18 (Johnny Peek) was excused on
challenged for cause by the Defense. (RR-V; p. 210).
11
Prospective Jurors 19, 21, 22, 23, 27, 34 and 35 were questioned individually.
(RR-VI; p. 5-289). Prospective Juror 19 (Benjamin Rodriguez) was excused on challenged for
Cause by both sides. (RR-VI; p. 11). Prospective Juror 21 (Priscilla DeGeorge) having qualified
to serve, was instructed to return on March 24, 2014 at 8:30 a.m. (RR-VI; p. 69). Prospective
Juror 22 (Kaitlin Upchurch) was challenged for cause by the State which was granted. (RR-VI; p.
98). Prospective Juror 23 (Eric Moore) was excused on challenge for Cause by the Defense. (RR-
VI; p. 140). Prospective Juror 27 (Tara Lloyd) was instructed to return on March 24, 2014 at
8:30 a.m. (RR-VI; p. 185). Prospective Juror 34 (David Blanchard) having qualified to serve, was
instructed to return on March 24, 2014 at 8:30 a.m. (RR-VI; p. 223). Prospective Juror 35
(Abraham Hernandez) having qualified to serve, was instructed to return on March 24, 2014 at
8:30 a.m. (RR-VI; p. 259).
12
Prospective Jurors 45, 48, 49, 53, 55, 56 and 61 were questioned individually.
(RR-VII; p. 5-198). Prospective Juror 45 (Michael Aliprando) was excused on challenge for
cause by the State. (RR-VII; p. 11). Prospective Juror 48 (Christene Anderson) was excused by
agreement of both parties. (RR-VII; p. 14). Prospective Juror 49 (Susan Weckwerth) having
qualified to serve, was instructed to return on March 24, 2014 at 8:30 a.m. (RR-VII; p. 62).
Prospective Juror 53 (Julie Coe-Bohannon) having qualified to serve, was instructed to return on
March 24, 2014 at 8:30 a.m. (RR-VII; p. 106). Prospective Juror 55 (Rose Berlanga) having
qualified to serve, was instructed to return on March 24, 2014 at 8:30 a.m. (RR-VII; p. 147).
Prospective Jurors 56 (Jay Seay) and 61(Marc Soriano) were excused by agreement. (RR-VII; p.
152 and p. 178).

13
Prospective Jurors 64, 73, 76, 77, 79, 81, 82, and 83 were questioned individually.
(RR-VIII; p. 5-249). Prospective Juror 64 (Naomi Guzman) was excused by agreement. (RR-
VIII; p. 6). Prospective Juror 73 (Darlena Greggs) having qualified to serve, was instructed to
return on March 24, 2014 at 8:30 a.m. (RR-VIII; p. 44). Prospective Juror 76 (Henrietta
Cavanaugh) having qualified to serve, was instructed to return on March 24, 2014 at 8:30 a.m.

9
seven (7) prospective jurors were questioned individually.14 (RR-IX; p. 3-158). On

February 26, 2014, nine (9) prospective jurors were questioned individually.15 (RR-

X; p. 3-288). On February 27, 2014, nine (9) prospective jurors were questioned

individually.16 (RR-XI; p. 4-335). On February 28, 2014, eight (8) prospective jurors

(RR-VIII; p. 89). Prospective Juror 77 (William Hered) was excused over objection based on the
State’s Challenge for Cause. (RR-VIII; p. 121). Prospective Juror 79 (Kelly Kildart) was excused
for Cause on Motions of both parties. (RR-VIII; p. 165). Prospective Juror 82 (Carolyn Hale)
having qualified to serve, was instructed to return on March 24, 2014 at 8:30 a.m. (RR-VIII; p.
208). Prospective Juror 83 (Olga Vasquez) was excused for Cause on Motion of the Defense.
(RR-VIII; p. 248).
14
Prospective Jurors 85, 92, 98, 102, 103, 104 and 105. (RR-IX; p. 3-158).
Prospective Juror 85 (Lisa LeBlanc) having qualified to serve, was instructed to return on March
24, 2014 at 8:30 a.m. (RR-IX; p. 102). Prospective Juror 92 (Thomas Berwick)was excused by
agreement of both parties. (RR-IX; p. 5). Prospective Juror 98 (Linda Hendrickson) having
qualified to serve, was instructed to return on March 24, 2014 at 8:30 a.m. (RR-IX; p. 58-59).
Prospective Juror 102 (Scott Huff). (RR-IX; p. 134). Prospective Juror 103(Joan Bolingbroke)
was excused for Cause on Motion of Defense. (RR-IX; p. 157). Prospective Juror 104 (Jessica
Jackson) was excused by agreement of both parties. (RR-IX; p. 5). Prospective Juror 105 (John
Jones) was excused by agreement of both parties. (RR-IX; p. 5).
15
Prospective Jurors 94, 109, 114, 117, 121, 123, 124, 128 and 225 were questioned
individually. (RR-X; p. 3-261). Prospective Juror 94 (Kermit Stephens) was excused by the
parties by agreement. (RR-X; p. 129). Prospective Juror 109 (Juanice Colwell) having qualified
to serve, was instructed to return on March 24, 2014 at 8:30 a.m. (RR-X; p. 60). Prospective
Juror 114 (Omar Khan) was excused by agreement. (RR-X; p. 66-67). Prospective Juror 117
(Tamara Scott) having qualified to serve, was instructed to return on March 24, 2014 at 8:30 a.m.
(RR-X; p. 123). Prospective Juror 121(Lasonya Taylor) having qualified to serve, was instructed
to return on March 24, 2014 at 8:30 a.m. (RR-X; p. 170). Prospective Juror 124 (Visothik Chan)
was excused by agreement. (RR-X; p. 218). Prospective Juror 128 (Kirk Nadler) having qualified
to serve, was instructed to return on March 24, 2014 at 8:30 a.m. (RR-X; p. 259). Prospective
Juror 225 (Mechelle Maynes) having qualified to serve, was instructed to return on March 24,
2014 at 8:30 a.m. (RR-X; p. 209).

16
Prospective Jurors 129, 130, 131, 134, 135, 136, 139, 149, and 225 were
questioned individually. (RR-XI; p. 4-302). Prospective Juror 129 (Jeanee Wells) having
qualified to serve, was instructed to return on March 24, 2014 at 8:30 a.m. (RR-XI; p. 50).

10
were questioned individually.17 (RR-XII; p. 3-155). On March 3, 2014, nine (9)

prospective jurors were questioned individually.18 (RR-XIII; p. 3-273). On March 4,

Prospective Juror 130 (Frances Baldwin) was excused on Motion of the Defense for Cause. (RR-
XI; p. 86). Prospective Juror 131 (Deidre Richards) having qualified to serve, was instructed to
return on March 24, 2014 at 8:30 a.m. (RR-XI; p. 136). Prospective Juror 134 (Glenn Price)
having qualified to serve, was instructed to return on March 24, 2014 at 8:30 a.m. (RR-XI; p.
176). Prospective Juror 135 (Gaynell Watkins) having qualified to serve, was instructed to return
on March 24, 2014 at 8:30 a.m. (RR-XI; p. 225). Prospective Juror 136 (James Reed) was
excused on Motion of the Defense for Cause. (RR-XI; p. 271). Prospective Juror 139 (Roberto
Martinez) having qualified to serve, was instructed to return on March 24, 2014 at 8:30 a.m.
(RR-XI; p. 296). Prospective Juror 149 (David Bankus) was excused by agreement. (RR-XI; p.
297). Prospective Juror 225 (Shannon Thomason) was excused by agreement. (RR-XI; p. 302).
17
Prospective Jurors 151, 156, 157, 158, 160, 161, 163 and 165 were questioned
individually. (RR-XII; p. 3-155). Prospective Juror 151 (Alecia Davis) having qualified to serve,
was instructed to return on March 24, 2014 at 8:30 a.m. (RR-XII; p. 52). Prospective Juror 156
(Simone Elder) was excused on Motion of the Defense for Cause. (RR-XII; p. 55). Prospective
Juror 157 (Robert Weidenmeyer) was excused by agreement. (RR-XII; p. 58). Prospective Juror
158 (Gloria McGlothen) was excused based on an age exemption. (RR-XII; p. 62). Prospective
Juror 160 (Kimberly Hedman) was excused by agreement. (RR-XII; p. 68). Prospective Juror
161(Rashid Simmons)was excused by agreement. (RR-XII; p. 99). Prospective Juror 163
(Barbara Lowry) was excused on Motion of the Defense for Cause. (RR-XII; p. 96). Prospective
Juror 165 (Kathleen Daniel) having qualified to serve, was instructed to return on March 24,
2014 at 8:30 a.m. (RR-XII; p. 134).
18
Prospective Jurors 168, 169, 170, 175, 178, 180, 181, 184, and 228. (RR-XIII; p.
3-245). Prospective Juror 168 (James Tullos) was excused on Motion of the Defense for Cause.
(RR-XIII; p. 10). Prospective Juror 169 (Rita Townsley) was excused by agreement. (RR-XIII; p.
10). Prospective Juror 170 (Demond Stanley) having qualified to serve, was instructed to return
on March 24, 2014 at 8:30 a.m. (RR-XIII; p. 47). Prospective Juror 175 (Angela Broussard )
having qualified to serve, was instructed to return on March 24, 2014 at 8:30 a.m. (RR-XIII; p.
100). Prospective Juror 178 (Gerard Lee) having qualified to serve, was instructed to return on
March 24, 2014 at 8:30 a.m. (RR-XIII; p. 68). Prospective Juror 180 (Maru Stogner) was excused
on Motion of the State for Cause. (RR-XIII; p. 207). Prospective Juror 181 (Elizabeth Jennings)
was excused on Motion of the State for Cause. (RR-XIII; p. 208). Prospective Juror 184 (David
Murff) having qualified to serve, was instructed to return on March 24, 2014 at 8:30 a.m. (RR-
XIII; p. 245). Prospective Juror 228 (Cynthia Heldring) was excused by agreement. (RR-XIII; p.
144).

11
2014, eleven (11) prospective jurors were questioned individually.19(RR-XIV; p. 3-

397). On March 5, 2014, eight (8) prospective jurors were questioned

individually.20(RR-XV; p. 3-284). On March 6, 2014, a third panel of sixty four (64)

prospective jurors were summoned to the 351st District Court. (RR-XVI; p. 3-160).

All sixty-four (64) summoned jurors arrived and were seated according to their

19
Prospective Jurors 185, 188, 196, 197, 198, 202, 203, 215, 231, 236 and 240 were
questioned individually. (RR-XIV; p. 3-397). Prospective Juror 185 (Luann Hayes) was excused
on Motion of the Defense for Cause. (RR-XIV; p. 46). Prospective Juror 188 (Demetria
Thomas) having qualified to serve, was instructed to return on March 24, 2014 at 8:30 a.m. (RR-
XIV; p. 90). Prospective Juror 196 (Russell Rice) having qualified to serve, was instructed to
return on March 24, 2014 at 8:30 a.m. (RR-XIV; p. 141). Prospective Juror 197 (Robert Finley)
was excused on Motion of the Defense for Cause. (RR-XIV; p. 169). Prospective Juror 198
(David Grimes) having qualified to serve, was instructed to return on March 24, 2014 at 8:30
a.m. (RR-XIV; p. 222 ). Prospective Juror 202 (Michael Yolland) having qualified to serve, was
instructed to return on March 24, 2014 at 8:30 a.m. (RR-XIV; p. 311). Prospective Juror 203
(Cynthia Martinez) having qualified to serve, was instructed to return on March 24, 2014 at 8:30
a.m. (RR-XIV; p. 271). Prospective Juror 215 (Allison Hall) was excused by agreement. (RR-
XIV; p. 171). Prospective Juror 231 (Linda Carraway) having qualified to serve, was instructed
to return on March 24, 2014 at 8:30 a.m. (RR-XIV; p. 366). Prospective Juror 236 (Irasema
Torres) was excused on Motion of the State for Cause. (RR-XIV; p. 389). Prospective Juror 240
(Gary Prezbinowski) was excused by agreement. (RR-XIV; p. 396).

20
Prospective Jurors 194, 206, 207, 210, 211, 212, 218, and 227 were questioned
individually. (RR-XV; p. 3-284). Prospective Juror 194 (Jhett Nelson) was excused on Motion of
the State for Cause. (RR-XV; p. 239). Prospective Juror 206 (George Card) was excused on
Motion of the Defense for Cause. (RR-XV; p. 94). Prospective Juror 207 (Gwendolyn Deason)
having qualified to serve, was instructed to return on March 24, 2014 at 8:30 a.m. (RR-XV; p.
68). Prospective Juror 210 (Christina Dakus)having qualified to serve, was instructed to return on
March 24, 2014 at 8:30 a.m. (RR-XV; p. 148). Prospective Juror 211 (Michael Ducharme)
having qualified to serve, was instructed to return on March 24, 2014 at 8:30 a.m. (RR-XV; p.
192). Prospective Juror 212 (Douglas Davis) having qualified to serve, was instructed to return
on March 24, 2014 at 8:30 a.m. (RR-XV; p. 221). Prospective Juror 218 (David Valdez) having
qualified to serve, was instructed to return on March 24, 2014 at 8:30 a.m. (RR-XV; p. 273).
Prospective Juror 227 (Deborah Yahner) was excused by agreement. (RR-XV; p. 282).

12
assigned numbers from two hundred and forty one (241) to three hundred and three

and five (305). (RR-XVI; p. 3-160). The parties excused forty-two (42) prospective

jurors by agreement, after review of the juror questionnaires.21 (RR-XVI; p. 168).

Thereafter, the Judge conducted his general “voir dire” of the third venire panel

wherein he explained certain principles of law.22 (RR-XVI; p. 12-156). Twenty-two

(22) prospective jurors were instructed to return on various dates for individual

voir.23 (RR-XVI; p. 157). On March 7, 2014 six prospective jurors were questioned

individually.24 (RR-XVII; p. 3-145). Appellant entered a plea of guilty upon

21
Prospective Jurors numbered 189, 241, 242, 243, 244, 245, 247, 248, 249, 250,
251, 252, 254, 255, 256, 258, 259, 260, 261, 264, 266, 267, 270, 271, 272, 273, 276, 277, 278,
279, 280, 281, 282, 284, 285, 287, 288, 293, 294, 295, 301 and 303 were excused by agreement
of the parties. (RR-XVI; p. 3; p. 118 and p. 156).
22
The Court discussed the following principles of law including but not limited to:
1) the presumption of innocence; 2) that a grand jury indictment is no evidence of guilt; 3) that
the State has burden of proof and it never shifts to the Defendant; 4) the principle that the State
must prove the accused’s guilt beyond a reasonable doubt; 5) the accused has the Fifth
Amendment Right against self-incrimination and should he exercise that right, no juror may draw
an adverse inference there from; 6) explanation of grand jury process; and 7) the elements of the
indictment. (RR-XVI; p. 12-156).
23
Prospective Jurors numbered 246, 257, 262, 263, 265 and 268 were told to return
on March 7, at 8:30 a.m. (RR-XVI; p. 157). Prospective Jurors 269, 274, 275, 283, 286 and 289
were told to return on March 7, 2014 at 1:00 p.m. (RR-IV; p. 157). Prospective Jurors numbered
290, 291, 292, 297, 298 and 299 were told to return on March 10, 2014 at 8:30 a.m. (RR-XVI; p.
157). Prospective Jurors 300, 302, 304 and 305 were told to return on March 10, 2014 at 1:00
p.m. (RR-XVI; p. 157).
24
Prospective jurors 246 257, 262, 263, 265 and 268 were questioned individually.
Prospective Juror 246 (Luman Burr) having qualified to serve, was instructed to return on March
24, 2014 at 8:30 a.m. (RR-XVII; p. 32-33). Prospective Juror 257 (Henry Sustaita) having
qualified to serve, was instructed to return on March 24, 2014 at 8:30 a.m. (RR-XVII; p. 60 ).
Prospective Juror 262 (John Murphy) having qualified to serve, was instructed to return on

13
arraignment outside the presence of the jury on March 7, 2014. (RR-XVII; p. 146-

148). Thereafter, the Court having qualified fifty (50) prospective jurors, recessed

until March 24, 2014. (RR-XVII; p. 149). On March 24, 2014, the panel of

prospective jurors returned to the Court. (RR-XVIII; p. 5). The Court inquired of the

panel whether any circumstances had changed since the their last appearance in

Court, “affecting their ability to take the oath and follow the law.” 25 (RR-XVIII; p.

5). The Court prepared and presented a proposed charge for review by the parties.

(RR-XVIII; p. 4). The defense requested the “failure to testify” instruction be

removed from the proposed charge (which was granted). (RR-XVIII; p. 3-4). Both

sides exercised their peremptory challenges and a jury of twelve (and two alternates)

were sworn in and seated.26 (RR-XVIII; p. 26 and RR-XIX; p. 3).

March 24, 2014 at 8:30 a.m. (RR-XVII; p. 92). Prospective Juror 263 (Judith Zalewski) was
excused by agreement of the parties. (RR-XVII; p. 93). Prospective Juror 265 (Kevin Kinlaw)
having qualified to serve, was instructed to return on March 24, 2014 at 8:30 a.m. (RR-XVII; p.
115). Prospective Juror 268 (Erika Attleson) having qualified to serve, was instructed to return
on March 24, 2014 at 8:30 a.m. (RR-XVII; p. 143).
25
The Court re-questioned panel members (re-numbered from 1-50) 2, 14, 24 and
43. (RR-XVIII; p. 7-14). It was determined that prospective juror number 2 (Tameka Hornsby-
previously numbered prospective juror 11)who was awaiting cancer tests (tumor benign)
remained qualified. (RR-XVIII; p. 7). Prospective juror 14 (Lisa LeBlanc-previously numbered
prospective juror 85) who’s mother was being treated for cancer was excused by the Court. (RR-
XVIII; p. 12); prospective juror 24 (Gaynelle Watkins-previously numbered prospective juror
135)who was on medication for gout was excused by agreement of the parties. (RR-XVIII; p.
14); prospective juror (David Valdez-previously numbered prospective juror 218) who had
accepted a new job in Washington D.C., remained qualified. (RR-XVIII; p. 15).
26
Prospective Jurors: 7 (Abraham Hernandez -previously prospective juror
numbered 35); 9 (Julie Bohannon- previously prospective juror numbered 53); 11 (Darlene

14
 (iv) GUILT/ INNOCENCE PHASE OF TRIAL

Appellant was arraigned in the presence of the jury and entered a plea of

guilty. ( RR-XIX; p. 3-4). The Court read the jury charge to the jury, wherein the

only verdict option was to find Appellant guilty of Capital Murder. (RR-XIX; p. 5).

After deliberations, the jury returned a verdict finding Appellant guilty of Capital

Murder. (RR-XIX; p. 7).

(v) PUNISHMENT PHASE OF TRIAL

On March 24, 2014 before hearing evidence, both sides presented opening

statement regarding the punishment phase of the trial. (RR-XX; p. 3-22). From

March 24, 2014 to March 31, 2014 the State called thirty-two (32) witnesses on

punishment. (RR-XX-XV).

Linda Holly, was a friend of Sherry White’s who worked with her bar at the

Sweetwater Country Club in the snack bar. (RR-XX; p. 25-26). On Friday May 20,

2011, they were both scheduled to work: Linda the morning shift (from 8:00 a.m. to

Greggs previously prospective juror numbered 73); 12 (Henrietta Cavanaugh- previously
prospective juror numbered 76); 16 (Scott Huff- previously prospective juror numbered 102); 18
(Tamara Scott- previously prospective juror numbered 117); 23 (Glenn Price- previously
prospective juror numbered 134); 25 (Roberto Martinez- previously prospective juror numbered
139); 26 (Alecia Davis- previously prospective juror numbered- 151); 32 (David Murff
previously prospective juror numbered 184); 35 (Russell Rice- previously prospective juror
numbered 196); and 38 (Cynthia Martinez- previously prospective juror numbered 203) were
seated as jurors. (RR-XVIII; p. 26). Prospective Jurors 39 (Gwendolyn Deason- previously
prospective juror numbered 207) and 40 (Christina Dakus- previously prospective juror
numbered 210) were seated as alternates. (RR-XVIII; p. 26).

15
3:00 p.m.) and Sherry White the evening shift (from 3:00 p.m. to 8:00 p.m.). (RR-

XX; p. 27-28). Sherry White, who was normally prompt and reliable, failed to

appear for work at 3:00 p.m. to relieve Linda Holly. (RR-XX; p. 27-28). Linda

called Sherry White several times on her cell phone and left messages on voice mail,

but received no return call. (RR-XX; p. 27-28). Consequently, she had to work a

double shift. (RR-XX; p. 27-28). The next day, she spoke to Patricia Robinson

(Sherry’s cousin) and learned that Sherry White had been found murdered in her

home. (RR-XX; p. 32-35).

A cousin John Elder (along with police officer Traci Seals) found the bodies

of Sherry White and her son, Kyle Laverge (also murdered) inside their home at

8914 Ferdinand St., Houston, Texas. (RR-XX; p. 41). The bodies were found around

noon, on Saturday, May 21, 2011 at around noon. (RR-XX; p. 41 and p. 64). During

the scene investigation, Appellant (who appeared outside at the house was identified

as Sherry’s boy friend). (RR-XX; p. 89). Appellant was transported by Officer Jose

Garcia to the homicide division for questioning. (RR-XX; p. 89).

Officer Sheridan Langford, (HPD Crime Scene Unit officer) described the

evidence gathering process at the crime scene. (RR-XX; p. 91-95). Officer Langford

prepared a scene diagram, took photographs and a video (State’s Exhibit 168) of the

scene at 8914 Ferdinand. (RR-XX; p. 97). State’s Exhibits 26-144 (photographs)

16
were admitted into evidence over defense objection.27 (RR-XX; p. 107). Officer

Langford recorded the serial number (State’s State’s Exhibit 109) corresponding to a

missing camera. (RR-XX; p. 135). Lastly, she gave “opinions” regarding forensic

aspects of the evidence at the crime scene such as blood spatter, absence of shell

casings, recovery of spent projectile (bullet-State’s Exhibit 89) and bullet strike

inside a pillow (State’s Exhibit 88); possible finger prints; blood and possible DNA

samples and the physical location of the bodies and wound locations28. (RR-XX; p.

106-107; p. 118; p. 121; p. 139 and p. 159).

Homicide Detective Mathew Brady conducted a search of an apartment

located at 9898 United Drive (Apartment Number 906) with the consent of the

owner, Vicky Alexander.29 (RR-XXI; p. 15). Photographs of the scene (State’s

Exhibits 169-178) and items recovered were admitted without objection. (RR-XXI;

p. 16). A camera (depicted in State’s Exhibit 179) was recovered from a bag in the

bedroom occupied by Appellant. (RR-XXI; p. 19). Also, a receipt (depicted in

State’s Exhibit 180) for the camera in the name of Sherry White was also found in

27
The defense objected on grounds of relevance. (RR-XX; p. 107).

28
Kyle Laverge’s body was found just inside the front door of the house in the living
room. (RR-XX-; p. 118). Sherry White’s body was found inside the bathroom. (RR-XX; p. 139).
29
Detective Brady had received information that Appellant had been staying in a
room within Apartment 906. Appellant’s sister, Vicky Alexander rented Apartment 906 and
lived their with her daughter Ashley Barbideaux and Jasmine Norton. (RR-XXI; p. 80).

17
the same bag. (RR-XXI; p. 19). State’s Exhibits 179 (photo of camera) and 180

(photo of receipt) were admitted into evidence without objection. (RR-XXI; p. 25).

Lastly, two suitcases believed to belong to Appellant were seized. (RR-XXI; p. 20).

Appellant gave his consent to search the bags. (RR-XXI; p. 22-23). The bags

contained clothing, toiletries and a cell phone. (RR-XXI; p. 23). Houston Police

Officer Justin Galindo conducted a forensic analysis of the seized camera (State’s

Exhibit 179). (RR-XXI; p. 32-34). He downloaded 431 digital images from the

camera. (RR-XXI; p. 32-34). Ten (10) of those images (identified as State’s Exhibits

183-192) enlarged for later identification were admitted into evidence without

objection. (RR-XXI; p. 34).

Houston police officer J. T. Smith conducted a forensic analysis of a Cricket

cell phone owned and consented to by Vicki Alexander. (RR-XXI; p. 42-43). State’s

Exhibits 193-196 (written consent form; photo of cricket phone and photo of

revolver from phone) were admitted without objection. (RR-XXI; p. 40).

Ashley Barbideaux, Appellant’s niece was close to Sherry White and Kyle

Laverge. (RR-XXI; p. 44). Around March 2011, Appellant was released from prison

and there was a party on his behalf attended to by his family and Sherry White. (RR-

XXI; p. 44-46). Ms. Barbideaux observed Sherry White and Appellant interacting

during the party. (RR-XXI; p. 44-46). Shortly afterwards they began dating. (RR-

18
XXI; p. 45). Around the middle of April 2011, Ashley Barbideaux found a kitchen

knife with a brown handle under the driver’s seat of her Mom’s car. (RR-XXI; p.

49). On Friday May 20, 2011, Appellant drove Ashley’s mother to work in her car.

(RR-XXI; p. 55). Around 10:00 a.m., Appellant returned with her Mom’s car. (RR-

XXI; p. 55). Ashley recalled Appellant, that morning tried to sell her the camera

(depicted in State’s Exhibit 179)for $30.00. (RR-XXI; p. 64).

Jasmine Norton knew Appellant had been over at Sherry White’s house in

Vicky’s car earlier in the morning of May 20, 2011. (RR-XXI; p. 81-82). Appellant

had some “crown royal” with him. (RR-XXI. p. 82). Jasmine and Ashley agreed to

get “fucked-up” with Appellant. (RR-XXI. p. 82). Jasmine drove with him to

Snappy’s grocery store for some “ice.” (RR-XXI; p. 82). During the ride Appellant

asked Jasmine if she knew anybody that wanted to buy a gun. (RR-XXI; p. 84).

Christopher Sturdivant, a homicide investigator interviewed Appellant at the

police station after he was detained at the scene on May 21, 2011. (RR-XXI; p. 138-

142). The interview was recorded by a digital video device, identified as State’s

Exhibit 197, admitted into evidence without objection and published to the jury.

(RR-XXI; p. 143 & p. 151). The interrogation of Appellant began at 9:42 p.m and

ended at 1:48 a.m. (RR-XXI; p. 145 and State’s Exhibit 197). Eventually, Appellant

admitted to Officer Sturdivant that he had killed both Sherry White and Kyle

19
Laverge. (State’s Exhibit 197). Officer Sturdivant believed that their were sufficient

corroborating details in Appellant’s confession to render it credible. (RR-XXII; p.

9-10). First, Appellant told Officer Sturdivant that the first shot fired at Kyle

Laverge was in the bedroom. (State’s Exhibit 197). This fact was corroborated by

the fired projectile (recovered from inside a pillow) found in the bedroom. (RR-

XXII; p. 11). Second, Appellant mentioned a glass of water left on the night stand.

(RR-XXII; p. 9-10). This fact was corroborated by observing a glass of water at the

scene on a night stand in Sherry White’s bedroom. (RR-XXII; p. 9-10). Third,

Appellant admitted leaving his watch in the bathroom where Sherry White was

found. (Exhibit 197). This fact was corroborated by the recovery of a man’s watch

of same make and description as described by Appellant. (RR-XXII; p. 13). Fourth,

Appellant claimed to have called Sherry White around 6:00 a.m. the morning of May

20, 2011. (State’s Exhibit 197). This fact was corroborated by her answering

machine recording a telephone call from a number associated with Appellant (Vickie

Alexander’s apartment) at 6:02 a.m. on May 20, 2011. (RR-XXII; p. 11).

Jason Oliphant, a CSU with the Houston Police Department, collected and

photographed both Appellant and his shoes30. (RR-XXII; p. 49-50 and State’s

30
The shoes (Size eleven Nike tennis shoes) were admitted into evidence without
objection. (RR-XXII; p. 57 and State’s Exhibit 205).

20
Exhibits 198-203). He also removed (using a cotton swab and distilled water)

perceived blood transfer found on the shoes. (RR-XXII; p. 57).

Christy Smejkal, a DNA Analyst with the Harris County Institute of Forensic

Sciences, removed biological material and foreign debris from both body’s of Sherry

White and Kyle Laverge and submitted it to the HPD Crime lab. (RR-XXII; p. 75-

79).

Jennifer Clay, a DNA Analyst with the Houston Crime Lab, created a DNA

profiles (from their known biological material) on both victims Sherry White and

Kyle Laverge, John Elder and Appellant. (RR-XXII; p. 92-93). Appellant was not

excluded as a contributor to DNA found under the right finger nail of Sherry White,

on a cell phone charger location at Sherry White’s house, (RR-XXII; p. 100; p. 102).

Dr. Louisa Flores, was the Harris County Deputy Medical Examiner who

performed both autopsies on the victims. (RR-XXII; p. 134). She testified that the

cause of death of Kyle Laverge was “multiple gun shot wounds.” (RR-XXII; p. 171

and State’s Exhibit 206). She testified that the cause of death of Sherry White was

“multiple gun shot wounds and multiple sharp force injuries.”(RR-XXIII; p. 81 and

State’s Exhibit 237).

Tammy Reed, a firearms examiner with the Harris County Forensic Examiner’s

office, identified five (5) projectiles (bullets-State’s Exhibits 90, 221, 236, 304 and

21
312) as capable of being fired from eleven different types of hand guns all of the .38

caliber class of firearms. (RR-XXIII; p. 118). She also testified that she had no

suspect firearm submitted to her on which to perform a “test fire.” (RR-XXIII; p.

117). Lastly, the crime scene had no shell casing recovered. (RR-XXIII; p. 119).

Robert Ali, Kyle Laverge’s great uncle, testified to fact that Kyle was

attending “aviation maintenance” school. (RR-XXIII; p. 133). The school records

were admitted into evidence over objection.31 (RR-XXIII; p. 133 and State’s Exhibit

324). Patricia Robinson, cousin to Sherry White, identified photographs of Sherry

White and Kyle Laverge (State’s Exhibits 325-327) admitted into evidence without

objection. (RR-XXIII; p. 145). Over objection, she testified that both victims were

good people and how difficult it has been dealing with their deaths. (RR-XXIII;

p.148).

Vicky Alexander, Sherry White’s best friend (Appellant’s half-sister32)

described Appellant coming to live with her in March of 2011, upon his release from

prison. (RR-XXIII; p. 147-148). Appellant met Sherry White at Vicky Alexander’s

apartment during a party arranged by his daughter. (RR-XXIII; p. 150). Vicky

31
Trial counsel’s objections was “to relevancy, hearsay and improper victim
information.” (RR-XXIII; p. 133).
32
Appellant and Vicky Alexander had the same father but different mothers.(RR-
XXIII; p. 192).

22
purportedly warned Sherry that Appellant had a “problem” with women. (RR-XXIII;

p. 152). In April 2011, Appellant told Vicky that he loved Sherry and he “wished he

could marry her.” (RR-XXIII; p. 155). Vicky described Appellant as very

“controlling, protective, possessive and jealous over Sherry.” (RR-XXIII; p. 155-

156). Approximately two weeks before the murder, Vicky believed Sherry was

ending her relationship with Appellant. (RR-XXXIII; p. 157). The week of May 8,

2011, Appellant went to Port Arthur and stayed with his daughter, Lorraine. (RR-

XXIII; p. 159-160). On Sunday May 15, 2011, Sherry White picked Appellant up at

the bus station upon his return from Port Arthur. (RR-XXIII; p. 161). He stayed with

Sherry at her house until Thursday May 19, 2014.(RR-XXIII; p. 162). On Friday,

May 20, 2011, Appellant drove Vicky to work. (RR-XXIII; p. 162). Sherry told

Vicky she had made secret plans to go “gambling” out of town that evening. (RR-

XXIII; p. 163). When Vicky got off work she could not reach Sherry by telephone.

(RR-XXXIII; p. 169). That evening she and Appellant went to a game room. (RR-

XXIII; p. 176). On Saturday May 21, 2011, Vicky drove (with Appellant) over to

Sherry White’s house and learned she and Kyle had been murdered. (RR-XXXIII; p.

181).

Gloria Freeman, Appellant’s first wife, began dating him when she was

fifteen (15) and he was seventeen (17). (RR-XXIV; p. 35). Ms. Freeman knew that

23
Appellant’s sister (Starklyn) had previously died. (RR-XXIV; p. 38). Appellant and

Ms. Freeman named their first born daughter Starklyn, after his deceased sister. (RR-

XXIV; p. 38-39). After High School, Appellant joined the marines and they moved

to Camp Lejuene, North Carolina. (RR-XXIV; p. 40-41). While living at Camp

Lejuene, Appellant began physically abusing Ms. Freeman. (RR-XXIV; p. 41). Their

second child, La Donna born pre-maturely, died when she was eighteen months old.

(RR-XXIV; p. 44). Shortly before her death, Ms. Freeman separated from Appellant

and moved back to live with her mother in Port Arthur, Texas. (RR-XXIV; p. 44-45

and p. 48).

Mark McElvany, a Deputy Sheriff with Harris County, identified finger prints

of Appellant linking him to judgment and sentences in his name (State’s Exhibit’s

329, 330, 333, 334, 335, 336, 337, 339, 340, 341, 342-admitted without

Objection.33). (RR-XXIV; p. 68). The judgment and sentences were published to the

jury as follows:

Style of Case & Exhibit Offense & Date Sentence & Date

33
State’s Exhibits 331, 331A, 332 were admitted over objection, citing Samudio v.
State, 648 S.W.2d 312 (Tex. Crim. App. 1983).(RR-XXIV; p. 11 and p. 69). The Court
reviewed the Harris County District Clerk’s Record in Cause Number 351037, specifically an
agreement to stipulate and judicial confession and found that Appellant did in fact affirmatively
waive his right to a jury trial. (RR-XXVI; p. 128 and Court Exhibit 2).

24
State’s Exhibit 329-Cause Larceny and Possession 60 days Jail in Jail-
Number 80-CRS-18012; of Stolen Property- 11/03/1930
Superior Court; County of 08/31/1980
Onslow; State of North
Carolina v. Jeffrey Keith
Prevost
State’s Exhibit 331- In Burglary of a Building- 120 days in Jail-
the 263 District Court of reduced to Criminal 03/01/1982
Harris County, Texas; Trespass- 02/26/1982
Cause 351037; State of
Texas v. Jeffrey Keith
Prevost;
State’s Exhibit 333-In the Unlawfully Carrying a 8 days in Jail-
County Court of Jefferson Weapon - 03/12/1984; 05/07/1984
County; Cause Number
111831; State of Texas v.
Jeffery Keith Prevost;
State’s Exhibit 334-In the Assault-01/16/1985 30 days in Jail-
County Court of Jefferson 04/06/1987
County; Cause Number
118016; State of Texas v.
Jeffery Keith Prevost;

State’s Exhibit 335- TDC Theft -08/30/1986; 3 years TDC-09/08/1987
Pen Packet containing;
Judgment Adjudication
Guilt; Cause 44703;
District Court of Jefferson
County; State of Texas v.
Jeffery Keith Prevost

25
State’s Exhibit 336- TDC Burglary of a Building- 5 years TDC-08/29/1988
Pen Packet containing; 06/28/1988;
Judgment; Cause Number
50694; District Court of
Jefferson County; State of
Texas v. Jeffery Keith
Prevost
State’s Exhibit 337- Criminal Trespass- 15 days in jail-
Criminal Information; 08/15/1989; 08/31/1989
charging in the County
Court of Jefferson
County; Cause Number
144035; State of Texas v.
Jeffery Keith Prevost;
State’s Exhibit 339- TDC Aggravated Assault; 20 years TDC-
Pen Packet containing; 09/01/1989 04/09/1990
Judgment; Cause Number
53301; District Court of
Jefferson County; State of
Texas v. Jeffery Keith
Prevost;
State’s Exhibit 340- Assault Family Violence- 30 days in Jail-
Criminal Information; 06/27/2005 07/25/2005
charging in the County
Court of Jefferson
County; Cause Number
144035; State of Texas v.
Jeffery Keith Prevost;
State’s Exhibit 341- Interference with an 30 days in Jail-
Criminal Information; Emergency Telephone 07/25/2005
charging in the County Call-06/27/2005
Court of Jefferson
County; Cause Number
251853; State of Texas v.
Jeffery Keith Prevost;

26
 State Exhibit 342- Numerous Parole Release Numerous Violations
Jefferson County Objections by Law while in TDC;
Sheriff’s Office Arrest Enforcement;
Records; State Exhibit
343; TDC Disciplinary
Records;
(RR-XXIV; p. 70-74).

John Shannon Davis; a prosecutor with the Harris County District Attorney’s

Office and former JAG major in the Military, interpreted Appellant’s Military

Records (State’s Exhibit 346-admitted without Objection). (RR-XXIV; p. 81).

State’s Exhibit 346, includes Appellant’s enlistment papers, medical records,

disciplinary records and discharge records. (RR-XXIV; p. 83). The military records

indicated Appellant served in the military from 1977 to 1986, reduced by nine

hundred (900) days due to AWOL convictions. (RR-XXIV; p. 84-85). Appellant’s

military records include evidence that he was charged twice with “Desertion,” which

was reduced to “Absent without official leave” resulting in two “AWOL”

convictions. (RR-XXIV; p. 86). Appellant was also found guilty in a special court

martial of “Attempted Forgery; Disrespecting an Officer; and Disobeying an non-

commissioned officer. (RR-XXIV; p. 91). The punishment imposed was in one

hundred and eighty (180) days [reduced to one hundred and twenty-six days (126) in

jail] after appeal. (RR-XXIV; p. 91). Appellant was given “a bad conduct discharge”

from the military. (RR-XXIV; p. 91-93).

27
 Sjolanda Brown, was Appellant’s parole officer from June of 2005 until

September of 2005. (RR-XXIV; p. 97). Ms. Brown interpreted Appellant’s parole

records, admitted without objection and published before the jury. (RR-XXIV; p. 98-

106 and State’s Exhibit 348). Ms. Brown testified Appellant had been paroled and

his parole revoked numerous times from 1989 to 2005.34 (RR-XXIV; p. 112-114).

Appellant’s last parole was revocation was based on “two misdemeanor convictions”

for “Assault Family violence and Interfering with an Emergency Telephone call.”

(RR-XXIV; p. 110-114). Appellant was sent back to prison (09/01/05) to serve the

remainder of a twenty (20) year sentence for “Aggravated Assault.” (RR-XXIV; p.

114). On July 12, 2011, Appellant was released on parole again to a half-way house.

(RR-XXIV; p. 118). Finally, on March 2, 2011, Appellant discharges his sentence.

(RR-XXIV; p. 121). During cross-examination, Ms. Brown stated she did not recall

whether Appellant’s parole records indicated that during his incarceration (after

2005 and before his parole in 2011) he was treated for “Major Depression” while at

the Sky view Unit. (RR-XXIV; p. 120-121).

Melissa Jackson, was a parole officer and case manager at the Beaumont

House, a half-way house for parolees. (RR-XXIV; 129). Ms. Jackson met Appellant

34
Appellant’s parole was revoked on October 28, 1989; January 1, 2003, and June
27, 2005. (RR-XXIV; p. 136).

28
in December of 2010, when he was paroled to the Beaumont House from TDC. (RR-

XXIV; p. 129). She identified State’s Exhibit 349 (parole records of Appellant

regarding stay at Beaumont House) which were admitted without objection. (RR-

XXIV; p. 130). Appellant was assigned to the “clean up” crew at the Beaumont

House. (RR-XXIV; p. 133). Appellant’s medical history indicated that he was

diagnosed with “Major Depression” and treated with “Sinequan” while at the

Skyview Unit of TDC from 1991-1993. (RR-XXIV; p. 134 and p. 141). Appellant

was referred to “Spindletop” (a mental health facility) for further evaluation and

treatment on January 5, 2011. (RR-XXIV; p. 135). During Appellant’s residency at

the Beaumont House, he violated facility rules by failing to engage in a job search.35

(RR-XXIV; p. 139).

Theressal Lorraine Prevost, Appellant’s daughter, was born and grew up in

Port Arthur, Texas. (RR-XXIV; p. 153). She was raised by her mother who passed

away January 14, 2010. (RR-XXIV; p. 153). During her childhood she had limited

contact with her father due to his incarceration. (RR-XXIV; p. 155). Theressal

Prevost has two step sisters (Starklyn and Zenobia). (RR-XXIV; p. 157). Appellant

35
Ms. Jackson testified that Appellant was given at least 5 prospective job
opportunities per week during his stay at the Beaumont House. (RR-XXIV; p. 139-140).
Appellant refused to make any effort to interview for any of the job opportunities.(RR-XXIV; p.
139-140). Appellant purportedly told Ms. Jackson that he did not want a job. (RR-XXIV; p. 139-
140). Appellant purportedly stated: “I’m just going to sit here until I’m done and then I’m going
to walk out of here.” (RR-XXIV; p. 140).

29
is their biological father, but they do not share the same biological mothers. (RR-

XXIV; p. 157). Appellant contacted Theressal, upon his release from the Beaumont

House in March of 2011. (RR-XXIV; p. 157-158). She gave Appellant a ride from

the Beaumont House to her step-sister’s (Starklyn and Zenobia’s) apartment. (RR-

XXIV; p. 157-158). Appellant lived with them upon his first release from the

Beaumont House. (RR-XXIV; p. 159-160). Theressal was close with her Aunt, Vicki

Alexander and had met Sherry White and Kyle Laverge. (RR-XXIV; 159-160). At

some point, upon learning that Sherry White and Appellant were dating, Theressal

Prevost told Sherry that her father had a history of drug abuse. 36 (RR-XXIV; p. 165).

In May of 2011, she warned Sherry that he may have relapsed. (RR-XXIV; p. 165).

Appellant told Theressal that he loved Sherry White. (RR-XXIV; p. 183). She

believe that the death of Appellant’s mother, wife and brother, all within the last

year (during his incarceration) was a factor in causing his major depression. (RR-

XXIV; p. 184). After his arrest for Sherry and Kyle’s murder, she would visit him in

jail. (RR-XXIV; p. 185-188). He was very sad and would cry a lot. (RR-XXIV; p.

188).

Jacquelin Eaglin, testified she was assaulted by Appellant on January 16,

36
Theressal Prevost testified that her mother moved her and her step sister’s to a
shelter when they were growing up due to her father’s drug addiction. (RR-XXIV; p. 168-169).
She also witnessed her father assault her mother in 2005. (RR-XXIV; p. 170).

30
1985. (RR-XXV; p. 6). Ms. Eaglin (formerly Jacquelin Buchanan) lived in the same

apartment complex across the hall from Dawn Stephenson. (RR-XXV; p. 6-8). Ms.

Eaglin observed Appellant trying to force his way into Ms. Stephenson’s apartment.

(RR-XXV; p. 6-8). She told Appellant Ms. Stephenson was not home and Appellant

“exploded” on her. (RR-XXV; p. 6-8). He knocked her to the ground, began choking

her and had to be forcibly removed. (RR-XXV; p. 8). Ms. Eaglin thought Appellant

was going to kill her. (RR-XXV; p. 8). She sustained injuries that required treatment

at the hospital. (RR-XXV; p. 9).

Vicki Lewis, and her two daughters were living with Vicki Alexander in her

apartment during the spring of 2011. (RR-XXV; p. 13). She first met Appellant

during a party hosted at Vicki’s Alexander’s apartment on his behalf. (RR-XXV; p.

13). Ms. Lewis described an incident around April of 2011, whereby she was

physically assaulted by Appellant. (RR-XXV; p. 17). Ms. Lewis did not call the

police because she was afraid of Appellant. (RR-XXV; p. 21).

Ramona Collins, Appellant’s niece was at the apartment in April of 2011 and

witnessed Appellant assault Vicki Lewis, by choking her. (RR-XXV; p. 27-28).

Laura Lee Simmons, described owning a Blue 1977 Mustang on August 31,

1980. (RR-XXV; p. 34-35). She recalled driving the Mustang to a club that evening

called the “500 Club” in Jacksonville, North Carolina. (RR-XXV; p. 35). Ms.

31
Simmons met Appellant at the club that evening. (RR-XXV; p. 35). Around closing

time, Ms. Simmons agreed to give Appellant a ride home in her car. (RR-XXV; p.

35-40). After she drives Appellant to his residence, he purportedly gets sexually

aggressive with her and is not deterred by her resistance. (RR-XXV; 35-40). Ms.

Simmons escapes from her car, flees to a nearby convenience store and calls the

police. (RR-XXV; p. 40-41). Thereafter, Appellant without her consent drove off in

her car. (RR-XXV; p. 41-42).

Michael Magby, was working for Park Inn Hotel near Port Arthur, Texas in

July of 1987. (RR-XXV; p. 48-49). He hired Appellant as a general maintenance

man for the Park Inn Motel. (RR-XXV; p. 50). On July 3, 1987, Mr. Magby’s 1986

Isuzu pick up was stolen. (RR-XXV; p. 51). He also had a gold ring stolen. (RR-

XXV; 60-63). Mr. Magby reported to police that another employee had observed

Appellant take the truck. (RR-XXV; p. 51). Later, the truck was found parked in a

Safeway parking lot with the radio missing. (RR-XXV; p. 53-54). Mr. Magby’s gold

ring was found in a pawn shop. (RR-XXV; p. 50-54). Appellant did not ever report

back to work. (RR-XXV; p. 54).

Dawn Windon, grew up in Port Arthur, Texas. (RR-XXV; p. 56). Appellant

32
and her (known as Dawn Stephenson37) dated in the early 80's. (RR-XXV; p. 57).

Ms. Windon described being assaulted on at least two occasions by Appellant, first

while on a date with him and later after she stopped seeing Appellant. (RR-XXV; p.

66-67 and p. 71-73). Years later, Ms. Windon, was the night audit clerk at the Park

Inn Hotel during the time that Appellant was hired as the maintenance man. (RR-

XXV; p. 60-63). Ms. Windon was the employee who saw Appellant driving Mr.

Magby’s stolen truck. (RR-XXV; p. 60-63). She also observed Mr. Magby’s gold

ring in Appellant’s possession. (RR-XXV; p. 60-63).

Muriel Charles Bell, went to same High School as Appellant, but met him

later. (RR-XXV; p. 93-95). Muriel Bell worked with Dawn Stephenson (now Dawn

Windon) at a Popeye’s in Port Arthur. (RR-XXV; p. 95). On September 1, 1989,

Ms. Bell described being assaulted by Appellant (choked her with a belt to a point of

passing out). (RR-XXV; p. 104-105). As a result of this incident, Appellant was

convicted of Aggravated Assault and sentenced to twenty (20) years in prison. (RR-

XXV; p. 112-113). Thereafter, the State rested. (RR-XXV; p. 114).

From April 1, 2014 to April 3, 2014, the Defense called seventeen (17)

witnesses regarding the punishment phase of the trial. (RR-XXVI-XXVIII).

37
Ms. Windon was living across the hall in the same apartment complex from
Jacquelin Eaglin. (RR-XXV; p 6-8). Appellant was trying to break into Ms. Windon’s apartment
when Ms. Eaglin confronted Appellant, leading to Appellant’s assault of her. (RR-XXV; p. 6-8).

33
 Trisha Rubero, worked at Spindletop (a mental health facility for the

uninsured) on December 28, 2010. (RR-XXVI; p. 8). Ms. Rubero met Appellant at

the facility on that day and reviewed his initial paper work. (RR-XXVI; p. 10). She

noted that Appellant had a previous diagnosis of Major Depression and had recently

lost his wife and mother. (RR-XXVI; p. 10). Appellant returned on January 5, 2011

for an initial intake appointment. (RR-XXVI; p. 10-11). Appellant returned on

January 12, 2011 for a follow-up treatment session. (RR-XVI; p. 12).

Jeffrey Demuth, worked at Spindletop as a intake counselor and met Appellant

on January 12, 2011. (RR-XXVI; p. 18). Mr. Demuth testified that his intake

comment regarding Appellant reflected the following: Appellant was 51 at the time

of intake interview. (RR-XXVI; p. 19). Appellant reported he had been hospitalized

at Skyview in 1993. (RR-XXVI; p. 19). Appellant was diagnosed with “Major

Depression and treated with Doxepin.” (RR-XXVI; p. 19). Appellant last received

medicine in 1995. (RR-XXVI; p. 19). Appellant reported a suicide attempt in the

early 1980's. (RR-XXVI; p. 19). Appellant reported that he had recently been

paroled from prison and was scheduled to be discharged from the Beaumont Center

in 49 days. (RR-XXVI; p. 19). Appellant reported that his wife and mother had

recently passed away. (RR-XXVI; p. 19-20). Appellant reported he was having

difficulty coping. (RR-XXVI; p. 20). Mr. Demuth entered a diagnosis that Appellant

34
was experiencing an “adjustment disorder” and “bereavement.” (RR-XXVI; p. 20-

21). However, Mr. Demuth did not believe Appellant’s condition met the criteria for

referral to a psychiatrist, so he did not do so. (RR-XXVI; p. 21-22).

Alesia Bean, met Appellant in 1982 when she was seventeen (17). (RR-XXVI;

p. 32). She and Appellant had a daughter that they named Zenobia. (RR-XXVI; p.

31). The relationship lasted about a year and a half, but they have remained in

contact and she still loves Appellant. (RR-XXVI; p. 31-33 and p. 43). Ms. Bean

described Appellant as a good father who loved Zenobia very much. (RR-XXVI; p.

36). On cross-examination, Ms. Bean admitted that their relationship included

physical abuse at times by both parties. (RR-XXVI; p. 41-43).

Thomesa Lewis Hollins, is Appellant’s half-sister. (RR-XXVI; p. 44).

Appellant was thirteen (13) when she was born. (RR-XXVI; p. 44). Appellant and

Ms. Hollins have the same biological mother, Betty Prevost Jones. (RR-XXVI; p.

45). Appellant and her were raised by their maternal grand parents. (RR-XXVI; p.

46). During her childhood, Ms. Hollins had chronic asthma and lung failure that

required her to be home schooled. (RR-XXVI; p. 46-47). She had to be in an

oxygen tent both day and night. (RR-XXVI; p. 47). Appellant acted as her home

teacher and would spend time in the oxygen tent with her. (RR-XXVI; p. 48). She

35
recalls Appellant played football38 in High School and was very popular. (RR-XXVI;

p. 49). Ms. Hall stated that the family has a history of mental health issues, both she

and her mother were hospitalized for depression. (RR-XXVI; p. 50). After Appellant

lost his daughter, La Donna he wasn’t the same. (RR-XXVI; p. 51). Appellant was a

loving and nurturing father. (RR-XXVI; p. 51-52). Upon Appellant’s latest parole

release , they would attend church together. (RR-XXVI; p. 53). Appellant’s father,

Richard Senegal went to prison “several times.” (RR-XXVI; p. 54). Ms. Hollins met

Sherry White and believed she was “very sweet.” (RR-XXVI; p. 55). She observed

them together and believed Appellant “loved her.” (RR-XXVI; p. 55). Ms. Hollins

knew Appellant had a history of drug and alcohol abuse. (RR-XXVI; p. 56).

Appellant regretted that he was unable to attend his wife (Theressal -Lorraine’s

mother), his brother and Betty Jones’ funerals due to his incarceration. (RR-XXVI;

p.62 and p. 71). She also believed he had difficulty adjusting to society upon his

discharge from parole. (RR-XXVI; p. 56). After the murders, Appellant cried a lot

and was remorseful. (RR-XXVI; p. 60).

Clarence Callahan, is a minister at the “Zion Temple Church of God and

Christ” located at 822 East Twelfth Street in Port Arthur, Texas. (RR-XXVI; p. 95).

38
Appellant’s athletic career in High School was described by Ms. Hall as follows:
“He was really good at football. So he made the little circle a lot. It was a big thing.” (RR-XXVI;
p. 49.

36
He met Appellant as a member of his congregation about fifteen years ago. (RR-

XXVI; p. 96). He would have dinner at Appellant and Theressal’s house on

occasion. (RR-XXVI; p. 96-97). Appellant and Sherry White attended his church on

at least one occasion. (RR-XXVI; p. 98-99). Reverend Callahan observed during the

service on that occasion, Appellant was deeply weeping. (RR-XXVI; p. 98-99). On

cross-examination, Reverend Callahan admitted that on August 11, 1999, he wrote a

letter to the parole board on Appellant’s behalf. (RR-XXVI; p. 100 and State’s

Exhibit 361).

Hershelle Prevost, is Appellant’s first cousin and twelve (12) years his junior.

(RR-XXVI; p. 101-107). He observed Appellant interact with his children in 2011

and believed he was an attentive father. (RR-XXVI; p. 109).

Starklyn Logan, is Appellant’s daughter from his relationship with Gloria Ann

Freeman. (RR-XXVI; p. 110-111). Appellant helped out with her children and

treated them well. (RR-XXVI; p. 116). After the murders she visited Appellant in jail

and he cried and was sad. (RR-XXVI; p. 116-117). Ms. Logan stated she loves her

father. (RR-XXVI; p. 117).

Dinisha Joseph, is Appellant’s sister and twelve years his junior. (RR-XXVI;

p. 121). She was raised by her mother and grand mother Ora Sandies. (RR-XXVI; p.

122). Appellant was her hero growing up and acted like a father figure to her. (RR-

37
XXVI; p. 123-124). Shortly before the murder of Sherry White, Ms. Joseph over

heard a telephone conversation Appellant had with Sherry White. (RR-XXVI; p.

131-132). Afterwards, Appellant returned to Houston and looked sad and rejected.

(RR-XXVI; p. 133).

Rynisha Jones, is Appellant’s niece (daughter of Dinisha Joseph). (RR-XXVI;

p. 147). She described her uncle as “loving and caring.” (RR-XXVI; p. 148).

Kevin Jones, is Appellant’s younger step brother by eight (8) years. (RR-

XXVI; p. 156). They have the same mother (Betty Jones) but different fathers. (RR-

XXVI; p. 157). Neither Appellant or Mr. Jones knew or saw much of their biological

fathers growing up. (RR-XXVI; p. 158-159). Appellant was a father figure to Mr.

Jones. (RR-XXVI; p. 159). After the death of Starkyln, their mother (Betty Jones)

had a mental break down and spent time in a State Mental Hospital. (RR-XXVI; p.

161). Betty Jones would bring men home with her that she met in clubs. (RR-XXVI;

p. 163). Often the men would get in physical fights with Appellant. (RR-XXVI; p.

164). Mr. Jones recalled one occasion where his mother got angry and fired a pistol

in Jeffrey’s direction in order to break up a fight between Appellant and her man

friend of the moment. (RR-XXVI; p. 165). Mr. Jones recalled Appellant changed

after his daughter (LaDonna) died. (RR-XXVI; p. 166-172). Appellant had anger

issues after her death and his time in the military. (RR-XXVI; p. 173).

38
 Lane Herkoltz, a former employee of the Texas prison system, described the

security and classification system applicable to offender’s convicted of Capital

Murder. (RR-XXVII; p. 13-36). Mr. Herkoltz reviewed Appellant’s previous prison

records from his three previous prison terms, including his disciplinary records. (RR-

XXVII; p. 35-36 and State’s Exhibit 339). Mr. Herkoltz described the Texas prison

system as a zero tolerance institution. (RRXXVII; p. 35-36). A prison inmate has no

right to refuse a lawful direct order from a prison correctional officer. (RRXXVII; p.

36). A disciplinary violation will become a permanent part of the inmate’s prison

records. (RRXXVII; p. 36-37). During Appellant’s first and second prison terms he

had no disciplinary reports or problems. (RRXXVII; p. 36-38). During Appellant’s

third trip, he had some disciplinary problems. (RR-XXVII; p. 38). Specifically, on

January 18, 1995 he failed to obey and order to be quiet in the main hallway. (RR-

XXVII; p. 39). On May 31, 1995 he pled guilty to “possession of contraband,

namely tobacco” and was restricted to his cell for thirty (30) days. (RR-XXVII; p.

39). On April 30, 1995 he was disciplined for using profanity and sentence to thirty

day commissary restriction. (RR-XXVII; p. 40). On August 31, 1991 he was

reprimanded (no punishment) for being in someone else’s cell. (RR-XXVII; p. 43).

On May 21, 1991 he was given a fifteen (15) day commissary restriction for

possession of contraband (six pieces of colored construction paper). (RR-XXVII; p.

39
43). On May 11, 1991 he was given a thirty (30) day commissary restriction for

possession of contraband (radio without proper paper work). (RR-XXVII; p. 45). On

April 6, 1991 he admitted to a rule violation and was punished by fifteen day (15)

commissary restriction and four extra duty hours. (RR-XXVII; p. 45). On January

22, 1991 he was given a thirty (30) day commissary restriction for being in the

wrong cell. (RR-XXVII; p. 45). On August 13, 1990 he was punished by a fifteen

day cell restriction for refusing an two orders to return to his cell. (RR-XXVII; p.

47). On July 3, 1990 he violated a posted rule by “failing to return a shorts and

socks” and was given a commissary restriction. (RR-XXVII; p. 49). On August 16,

1990 he was disciplined for lying to a correctional officer and received a ten day

commissary restriction. (RR-XXVII; p. 49-50). On January 3, 1996 he possessed

contraband and was given a thirty day commissary restriction. (RR-XXVII; p. 50).

On May 13, 1995, he exposed his penis to a correctional officer and was given a

forty-five day commissary restriction. (RR-XXVII; p. 51).

Gilbert Vilano, is a prison guard at the Jester Unit of the Texas Prison System.

(RR-XXVII; p. 108). He worked at the maximum security McConnell Unit for two

years. (RR-XXVII; p. 108). At the McConnell Unit, many inmates are serving Life

sentences without parole. (RR-XXVII; p. 108). The maximum security units have

cameras everywhere, monitoring activity 24/7 in the cells blocks, hallways,

40
enclosed areas where the officer’s operate the doors, the rec yards and in the day

room. (RR-XXVII; p. 108). Officer Vilano met Appellant as an inmate around 2008.

(RR-XXVII; p. 114). Appellant worked for Officer Vilano in the kennel’s where the

dogs (bloodhounds) are cared for. (RR-XXVII; p. 115). Officer Vilano recalled only

one instance39 where he had any disciplinary problems with Appellant during the

period that Appellant was under his supervision. (RR-XXVII; p. 118).

Luis Lopez, is a prison guard at the Lopez Unit of the Texas Prison System.

(RR-XXVII; p. 138). Officer Lopez met Appellant when they were both at the

Segovia Unit. (RR-XXVII; p. 139). Appellant worked for Officer Lopez for about

one year, during that time he had no disciplinary problems with Appellant. (RR-

XXVII; p. 139-140).

Eric Trevino, worked at the Lopez and Segovia Units of the Texas prison

system as a psychotherapist. (RR-XXVII; p. 146-147). He met Appellant in

February of 2010 for grief counseling relative to his depression. (RR-XXVII; p. 149-

150). Appellant had lost three family members in a three (3) week time span. (RR-

XXVII; p. 150-151). Appellant was polite, courteous and respectful toward Mr.

Trevino. (RR-XXVII; p. 151). At no time did Mr. Trevino feel threatened by

39
Appellant and another inmate who also worked in the kennels got into a verbal
altercation about a work issue.

41
Appellant. (RR-XXVII; p. 151-152).

Daniel Prevost, Appellant’s first cousin, was close with Appellant growing up.

(RR-XXVIII; p. 8). Daniel Prevost, believed that Appellant was changed by the

trauma associated with the deaths of his step-sister Starklyn and his daughter

LaDonna, both of whom he was very close with. (RR-XXVIII; p. 14).

Xenobia Green, is Appellant’s daughter. (RR-XXVIII; p. 25). She described

Appellant’s sadness that she witnessed upon visiting him in the Harris County, Jail.

(RR-XXVIII; p. 32).

Gilda Kessner, Phd., is a clinical psychologist. (RR-XXVIII; p. 38). Dr.

Kessner spoke with Appellant for many hours, spoke with family members, reviewed

his medical, school, military and prison records in order to complete a psychological

profile of Appellant. (RR-XXVIII; p. 40-43). Appellant was the first child born to a

teenage mother, out of wedlock to Richard Senegal (an absent older father) who had

a criminal convictions for possession of heroine and homicide. (RR-XXVIII; p. 43-

44). Appellant was raised by his (step-father- Pete Jones’ parents) and in an

environment that was not supportive. (RR-XXVIII; p. 44). His mother, when around

would dress him up in girls clothes when he would show emotion, boys don’t cry.

(RR-XXVIII; p. 45-46). Appellant’s siblings were fathered by different men,

making discipline confusing and inconsistent. (RR-XXVIII; p. 46). The grandmother

42
ran a club called the “Ship Channel.” (RR-XXVIII; p. 46). This exposed Appellant to

a lot of Adult Entertainment. (RR-XXVIII; p. 46-47). Appellant was thirteen (13)

years old when Starklyn died. (RR-XXVIII; p. 47). This had a huge impact on

Appellant and he was ill equipped psychologically to deal with this loss. (RR-

XXVIII; p. 52). Appellant’s mother was treated at Rusk State Hospital as an in-

patient in 1973 and 1976 for mental illness. (RR-XXVIII; p. 53). Appellant joined

the Marines when he graduated from High School. (RR-XXVIII; p. 58). He did he

basic training in San Diego, California and his advanced training in North Carolina.

(RR-XXVIII; p. 58-59). Appellant Gloria Freeman in High School, she got pregnant

and moved out to North Carolina. (RR-XXVIII; p. 60). Starklyn was born in June of

1978, about one month after they were married. (RR-XXVIII; p. 60). The drinking

age in North Carolina was eighteen, Appellant is single when he first arrives and is

partying a lot. (RR-XXVIII; p. 60-61). When Starklyn arrives, they move to the

married quarters on base. (RR-XXVIII; p. 60-61). Gloria doesn’t know anyone and

it is difficult for her. (RR-XXVIII; p. 60-61). She gets in a car accident that damages

her pelvis and moves back to Texas . (RR-XXVIII; p. 62). Appellant leaves to check

on Gloria in the hospital in Texas without his Commander’s permission and is

charged with being AWOL. (RR-XXVIII; p. 62). LaDonna is born in June of 1979,

with severe birth defects and died eighteen months later. (RR-XXVIII; p. 62-65).

43
This is another tragic event in Appellant’s life which leads to his mood disorder of

depression. (RR-XXVIII; p. 66). Appellant did not receive proper medical treatment

for his depression so he self-medicates with alcohol and drugs. (RR-XXVIII; p. 66-

68). During the early 80's Appellant experiences the loss of his second child, is

abusing drugs and alcohol to treat his depression, is working sporadically, which

leads to a series of misdemeanor convictions, the auto theft and then Aggravated

Assault case leading to his twenty year prison sentence. (RR-XXVIII; p. 75). Dr.

Kessner opined that Appellant developed an abnormal neediness and dependency

for a secure relationship40, that lead him to fall in love with Sherry White. (RR-

XXVIII; p. 78). When this abnormal “neediness and dependency” is perceived by

Ms. White, she pulled back. (RR-XXVIII; p. 77-78). Appellant, who was not being

treated for his mood disorder, had “low energy, low motivation, and a fatalistic

attitude about his future” reacted to her withdrawal with extreme violence. (RR-

XXVIII; p. 85-86). It was Dr. Kessner’s opinion that the events that happened in

Appellant’s life acted as a trigger for the “rage and violence” causing this offense are

unlikely to be re-created in a prison environment. (RR-XXVIII; p. 94-95).

Thereafter, the Defense rested. (RR-XXVIII; p. 174). The State rested and closed.

40
Appellant’s early childhood shaming, no secure attachment to either parent,
exposure to domestic violence, leading to the a feeling of no safety or security.

44
(RR-XXVIII; p. 174).

STATEMENT REGARDING ORAL ARGUMENT

APPELLANT WAIVES ORAL ARGUMENT

QUESTIONS PRESENTED

WHETHER THE STATE’S FAILURE TO FILE WRITTEN NOTICE OF
“INTENT TO SEEK THE DEATH PENALTY” VIOLATES DUE PROCESS
UNDER FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED
STATES CONSTITUTION?

WHETHER THE STATE’S FAILURE TO FILE WRITTEN NOTICE OF
“INTENT TO SEEK THE DEATH PENALTY VIOLATES DUE COURSE
OF LAW UNDER ARTICLE ONE, SECTION NINETEEN OF THE TEXAS
CONSTITUTION?

WHETHER THE STATE’S FAILURE TO FILE WRITTEN NOTICE OF
“INTENT TO SEEK THE DEATH PENALTY” AS REQUIRED BY LAW
WAS FUNDAMENTAL ERROR?

WHETHER THE TRIAL COURT ERRED BY FAILING TO FIND TEXAS
CODE OF CRIMINAL PROCEDURE ARTICLE 37.071
UNCONSTITUTIONAL?

WHETHER THE TRIAL COURT ERRED BY FAILING TO FIND TEXAS
PENAL CODE ART. 19.02-19.03 UNCONSTITUTIONAL?

WHETHER THE EXCUSAL OF PROSPECTIVE JUROR 77 (WILLIAM
HERED) BASED ON THE STATE’S CHALLENGE FOR CAUSE (OVER
DEFENSE OBJECTION) WAS ERROR BY THE TRIAL COURT?

WHETHER THE TRIAL COURT ERRED IN DENYING APPELLANT’S
MOTION FOR A MISTRIAL AFTER THE ADMISSION OF IMPROPER
AND PREJUDICIAL EXTRANEOUS OFFENSE EVIDENCE?

WHETHER THE TRIAL COURT ERRED IN DENYING APPELLANT’S
45
 MOTION FOR A MISTRIAL AFTER THE ADMISSION OF VICKI
ALEXANDER’S UNRESPONSIVE AND PREJUDICIAL TESTIMONY?

WHETHER THE TRIAL COURT ERRED IN DENYING APPELLANT’S
MOTION FOR A MISTRIAL AFTER THE ADMISSION OF THOMESA
HOLLIN’S UNRESPONSIVE AND PREJUDICIAL TESTIMONY?

WHETHER THE TRIAL COURT ERRED IN DENYING APPELLANT’S
MOTION FOR A MISTRIAL AFTER THE ADMISSION OF AN
IMPROPER AND PREJUDICIAL QUESTION BY THE PROSECUTOR?

POINT OF ERROR ONE

THE STATE’S FAILURE TO FILE WRITTEN NOTICE OF “INTENT TO
SEEK THE DEATH PENALTY VIOLATES DUE PROCESS UNDER THE
FIFTH AND FOURTEENTH AMENDMENT OF THE UNITED STATES
CONSTITUTION

POINT OF ERROR TWO

THE STATE’S FAILURE TO FILE WRITTEN NOTICE OF “INTENT TO
SEEK THE DEATH PENALTY VIOLATES DUE COURSE OF LAW
UNDER ARTICLE ONE, SECTION NINETEEN OF THE TEXAS
CONSTITUTION

FACTUAL SUMMARY

The index of in Volume One (I) of the Clerk’s Record in this cause does not

list by caption heading any entry entitled “State’s Notice of Intent to Seek the Death

Penalty” nor the page number of such a document on a certain page within the Seven

Volumes of Clerk’s documents (comprising of over fifteen hundred pages). (CR-I; p.

1-9). Further, a computer search (in PDF format) using the search terms “State’s

Notice of Intent to Seek the Death Penalty” results in “no document found.” (CR-I-
46
VII). A careful review of all Seven (7) volumes of the clerk’s record has revealed no

such document exists under this cause (per Appellant counsel’s diligent search of the

record in this cause) as required by Articles 34.04; 35.15; 35.16 and 37.071 of the

Texas Code of Criminal Procedure.41 [CR-I-VII; p. 1-1529].

ARGUMENT AND AUTHORITIES

Historically, the Texas Code of Criminal Procedure § 1.14 (1973) provided:
"... No case in which the State seeks the death penalty shall be tried until 15
days after such notice is given..." Ex parte Watkins, 489 S.W.2d 617, 618
(Tex. Crim. App. 1973).

Currently, Texas Code of Criminal Procedure § 37.071 section 2) (a) (1)

provides “...in which the State seeks the death penalty...” and 37.0711 section

3(a)(1) provides “...If a defendant is tried for a capital murder in which the

state seeks the death penalty...” Further, Texas Code of Criminal Procedure §

35.25 (2012) provides...in capital cases in which the state's attorney has

announced that he will not...seek the death penalty.... See Sorola v. State, 769

S.W.2d 920, 922 (Tex. Crim. App. 1989). Last, “due process” and “due

course of law” consideration require that a defendant be given written notice

41
Further, the record does not reflect that the Defense entered any “objection” to the
failure of the State to file a written notice of “Intent to seek the death penalty” so any error (other
than fundamental error) has not been preserved for review. Clark v. State, 365 S.W.3d 333 (Tex.
Crim. App. 2012).

47
 of any punishment enhancements. For example, when the State will seek an

affirmative finding that a deadly weapon was used or exhibited during the

commission of the charged offense. Smith v. State, 2012 Tex. App. LEXIS

10056 (Tex. App. Fort Worth Dec. 6, 2012) citing Brooks v. State, 847

S.W.2d 247, (Tex. Crim. App. 1993). The notice requirement is firmly rooted

in fundamental precepts of due process and due course of law. See Ex parte

Patterson, 740 S.W.2d 766 (Tex. Crim. App. 1987). This Court noted42 in

State ex rel. Lykos v. Fine, 330 S.W.3d 904 at page 906 (Tex. Crim. App.

2011) “Mr. Green has been charged with the capital murder of Tina Vo, and

the State has given notice of its intent to seek the death penalty.” This Court

has also noted that “...a capital murder indictment reads when the State seeks

the death penalty reads exactly the same as when the State does not seek the

42
Although it appears to be the practice in Harris County to do so, this Court did not
cited any controlling statute or authority requiring the State to file written notice of Intent to Seek
the Death Penalty in State ex rel. Lykos v. Fine, 330 S.W.3d 904 at page 906 (Tex. Crim. App.
2011) or in Smith v. State, 297 S.W.3d 260 at page 266 (Tex. Crim. App. 2009) wherein the
Court noted that “on August 16, 2005, the State served its "Notice of Intent to Seek the Death
Penalty.” Other counties (Collin County) in Texas follow the practice to file written notice of
Intent to Seek the Death Penalty. See Bell v. State, 2012 Tex. App. LEXIS 8995 (Tex. App.
Eastland Oct. 31, 2012). In Federal Court, the United States Code § 3593 (a) requires the
government to file written notice of Intent to Seek the Death Penalty. See United States v.
Webster, 162 F.3d 308 (5th Cir. 1998).

48
 death penalty.” State ex rel. Lykos v. Fine supra. Here, the failure of the State

to file written notice of the Intent to Seek the death penalty violated

Appellant’s right to due process under the federal constitution and his right to

due course of law under the Texas Constitution.

POINT OF ERROR THREE

THE STATE’S FAILURE TO FILE WRITTEN NOTICE OF
“INTENT TO SEEK THE DEATH PENALTY” AS REQUIRED BY
LAW WAS FUNDAMENTAL ERROR

ARGUMENT AND AUTHORITIES

It is common practice for the State to file written notice of its intent to seek

the Death Penalty at some point before trial and independent of the indictment.

State v. ex rel Lykos v. Fine, 330 S.W.3d 904 (Tex. Crim. App. 2011).

Fundamental error43 is error so egregious and created such harm that the

accused is deprived of a fair and impartial trial. Almanza v. State, 686 S.W.2d

157, 171 (Tex. Crim. App. 1985). Here, the indictment in this case in Cause

1414421, was returned on January 15, 2014, per the Harris County District

Clerk’s file stamp and signature of the foreman of the grand jury of the 351st

43
Trial counsel filed no written objection nor does an oral objection appears in the
record. (CR-I-IV and RR-I-XXXIX).

49
 District Court, Rhonda Lowe44. (CR-I; p. 12). The return of the indictment

was thirty-three (33) days before the beginning of the Jury selection phase of

trial on February 17, 2014. (RR-III; p. 3-4). At least one lower Court has

found written notice of other penalty enhancements to be “firmly rooted in

fundamental precepts of due process and due course of law.” Byrd v. State,

2008 Tex. App. LEXIS 6630, 2008 WL 4053000 (Tex. App. Fort Worth Aug.

29, 2008). Arguably, the State’s failure to provide written notice of the Intent

to Seek the Death Penalty failure is so egregious and created such harm that

Appellant was deprived of a fair and impartial trial.

POINT OF ERROR FOUR

THE TRIAL COURT ERRED BY FAILING TO PRECLUDE THE
DEATH PENALTY AS A SENTENCING OPTION AND FAILING
TO FIND TEXAS CODE OF CRIMINAL PROCEDURE ARTICLE
37.071 UNCONSTITUTIONAL UNDER AUTHORITY OF JONES
V. UNITED STATES ET. AL.

ARGUMENT AND AUTHORITIES

It is unconstitutional for a legislature to remove from the jury the

assessment of facts that increase the prescribed range of penalties to which a

44
At least one earlier indictment had been filed (per notation on current indictment
indicated “Re-Indict of 1309319.”). (CR-I; p. 12).

50
criminal defendant is exposed and those facts must be established by proof

beyond a reasonable doubt. Jones v. United States, 526 U.S. 227 (1999). In

Ring v. Arizona , 536 U.S. 584 (2002), the Supreme Court held that the rule

of Apprendi v. New Jersey, applies to capital cases, “Where a sentence of

death is authorized only upon the finding of certain facts, those facts

operate as the functional equivalent of an element of a greater offense.” The

Sixth Amendment's jury trial guarantee thus required that the Arizona death

penalty statute's aggravating factors be treated as elements, “Because

Arizona 's enumerated aggravating factors operate as the functional

equivalent of an element of a greater offense, the Sixth Amendment

requires they be found by a jury beyond a reasonable doubt.” Ring v.

Arizona, 536 U.S. 584 (2002). Here, under the Texas scheme as provided by

Article 37.071, the jury should be instructed that they must find beyond a

reasonable doubt the “absence of any mitigating facts.” This court has

previously rejected this argument distinguishing facts in aggravation of

punishment from facts in mitigation of punishment. Perry v. State, 158 S.W.3d

438 (Tex. Crim. App. 2004). To the extent that Perry v. State, 158 S.W.3d

438 (Tex. Crim. App. 2004) and other cases are authority against this

argument, Appellant requests this Court reconsider this issue.

51
 POINT OF ERROR FIVE

THE TRIAL COURT ERRED BY FAILING TO FIND TEXAS
PENAL CODE ART. 19.02-19.03 UNCONSTITUTIONAL

ARGUMENT AND AUTHORITIES

In Mullaney v. Wilbur, 421 U.S. 684 (1975), the United States

Supreme Court held the Due Process clause requires the prosecution to prove

beyond a reasonable doubt the absence of the heat of passion on sudden

provocation when the issue is properly presented in a homicide case. Further,

in Coker v. Georgia, 433 U.S. 584 (1977) held the death penalty constitutes

cruel and unusual punishment under the Eight Amendment where there is no

proportionality between the crime and the punishment. Here, trial counsel

Motion attacked the Constitutionality of the Texas Capital Punishment

scheme, arguing that under the statutory definition of murder [where Texas

law makes voluntary manslaughter a mitigating fact at punishment instead of

an element of a lesser included offense of voluntary manslaughter] and

therefore under Apprendi v. New Jersey, 530 U.S. 466 (2000) and under a

proportionality review the intentional killing of two individuals in the same

transaction, but under circumstances of sudden passion based on adequate

52
cause redefines the elements of the offense of murder by characterizing the

element as a factor that only bears on punishment mitigation. To the extent

that Perry v. State, 158 S.W.3d 438 (Tex. Crim. App. 2004) and other cases

are authority against this argument, Appellant requests this Court reconsider

this issue.

POINT OF ERROR SIX

EXCUSING PROSPECTIVE JUROR 77 (WILLIAM HERED) BASED
ON THE STATE’S CHALLENGE FOR CAUSE (OVER DEFENSE
OBJECTION) WAS ERROR BY THE COURT

ARGUMENT AND AUTHORITIES

A venire member is challengeable for cause if he has a bias or prejudice

against the defendant or against the law upon which either the State or the

defense is entitled to rely. TEX. CODE CRIM. PROC. art. 35.16(a)(9). The

proponent does not meet this burden until he has shown that the venire

member understood the requirements of the law and could not overcome his

prejudice well enough to follow the law. Feldman v. State, 71 S.W.3d 738

(Tex. Crim. App. 2002). When a venire member’s answers are ambiguous,

vacillating, unclear, or contradictory, a reviewing Court will give particular

deference to the trial court’s decision, however reversal is warranted for clear

abuse of discretion. Colburn v. State, 966 S.W.2d 511, 517 (Tex. Crim. App.

53
1998). Here, arguably the trial court abused it’s discretion in granting the

State’s challenge for cause. Although prospective juror William Hered at times

gave unclear answers, he stated unequivocally on more than one occasion that

he understood the requirements of the law and would follow it. The following

examples demonstrate this:

Q: By Mr. Goodhart- Can you participate in such a way where you
would have to vote according to the evidence and a person might die, or
are you telling us that you cannot do that?

A: By Mr. Hered- It would be really hard, but I think if I was fully
convinced during the trial, that I could vote in either way as long as I
believed it. (RR-VIII; p. 101.)

Q: By Mr. Goodhart-.As I told you earlier, some people just tell us:
Look, I just found this person guilty of capital murder, I'm always going
to find the person a future danger just because of the facts of the case.
Would you do that?

A: By Mr. Hered- It would depend on the case for me. Depending -- you
mentioned there's a whole bunch of different capital murder cases. And
I think depending on which kind of case that was, my answer would
change. (RR-VIII; p. 106).

Q: By Mr. Tanner- Now, would you be able to follow your oath and
give a correct answer as to Special Issue No. 1 based on the evidence?

A: By Mr. Hered-That evidence thing, again, those extreme cases you
mentioned, I think it would be pretty easy. (RR-VIII; p. 114).

Q: By Mr. Tanner- If the State proved that to you, those two things
should be answered "yes" and "no," knowing that it would lead to the
death penalty, would you answer those "yes, no" knowing that, or would
you violate your oath and change one of the answers to assure that the

54
 person gets life in prison?

A: By Mr. Hered- If I was convinced on either one of those, like I said
in one of those extreme cases, then I would answer those questions
truthfully regardless of the final outcome. (RR-VIII; p. 117).

Q: THE COURT- So, in that circumstance, if you have found that he is
a future danger, then the question is: Is there mitigation sufficient to
change from death to life. Would you answer that question truthfully
based on the evidence presented to you?

A: By Mr. Hered- Yes. (RR-VIII; p. 118).

Viewing these responses it is arguable that he would follow the law

over his preferences in favor of life without parole. Accordingly, the Court

abused it’s discretion in granting the State’s challenge for cause.

POINT OF ERROR SEVEN

THE TRIAL COURT ERRED IN DENYING APPELLANT’S
MOTION FOR A MISTRIAL AFTER THE ADMISSION OF
IMPROPER AND PREJUDICIAL EXTRANEOUS OFFENSE
EVIDENCE

FACTUAL SUMMARY

During the testimony of Vicky Alexander the following exchange took
place:

Q: Do you have personal knowledge of an incident where everything
was removed from Theressal’s house?

A: Yes.

Q: Explain that. What did you see?

55
A: Jeffrey removed everything from her house.

Q: And when we say...

MR. TANNER: For the record may we take this witness on voir dire?

THE COURT: Okay.

MR. TANNER: Thank you.

BY MR. TANNER: You’re saying that Jeffrey removed everything
from the house? Did you see that with your
own eyes?

A: Sir?

Q: I’m sorry?

A: What did you say?

Q: Did you see that with your own eyes, him remove everything
from the house?

A: No.

MR. TANNER: Judge, we’re going to ask that be stricken from the
record and the jury be asked to disregard that
comment.

THE COURT: Sustain the objection. Instruct the jury to disregard
the last statement by the witness.

MR. TANNER: For the record, we move for a mistrial.

THE COURT: That will be denied. (RR-XXIII; p. 202-203).

STANDARD OF REVIEW

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 This Court reviews a trial court's denial of a motion for mistrial for an

abuse of discretion. Archie v. State, 340 S.W.3d 734, 738-39 (Tex. Crim. App.

2011). Thus, this Court must uphold the trial court's ruling if it is within the

zone of reasonable disagreement. Marchbanks v. State, 341 S.W.3d 559, 561

(Tex. App.—Fort Worth 2011, no pet.). A mistrial is necessary in extreme

circumstances when the prejudice caused by an improper question and answer

is incurable. Whitney v. State, 396 S.W.3d 696(Tex. App.—Fort Worth 2013,

pet. ref'd) holding that a mistrial is appropriate when an error is so prejudicial

that expenditure of further time would be futile.

ARGUMENT AND AUTHORITIES

The Texas Rules of Evidence provide the basic framework for analysis

regarding whether an extraneous offense is admissible. Evidence is ²relevant²

that has ²any 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.² TEX. R. EVID. 401. ²All relevant evidence is

admissible, except as otherwise provided by . . . these rules . . . . [E]vidence

which is not relevant is inadmissible.² TEX. R. EVID. 402. Rule 404 provides:

²evidence of other crimes, wrongs or acts is not admissible to prove the

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character of a person in order to show that he acted in conformity therewith.²

TEX. R. EVID. 404(b). Evidence of ²other crimes, wrongs or acts² may be

admissible if it has relevance apart from its tendency ²to prove the character of

a person in order to show action in conformity therewith.² TEX. R. EVID.

404(b). Jackson v. State, 320 S.W.3d 873 (Tex. App.—Texarkana 2010, pet.

ref’d). Evidence of extraneous offenses also may be admitted during the

punishment phase if the trial court deems the evidence relevant to sentencing.

See Tex. Crim. Proc. Code Ann. art. 37.07 § 3(a)(1) (Vernon 2005). When

evidence of an extraneous offense is used in the punishment phase of trial for

the limited purpose of assessing punishment, the evidence must prove beyond

a reasonable doubt that the defendant committed the act alleged. Id. If such

evidence is introduced, the trial court must give the jury an instruction

regarding the reasonable doubt standard of proof. Id. § 3(b); Huizar v. State,

12 S.W.3d 479, 484 (Tex. Crim. App. 2000). In general an instruction to

disregard usually cures prejudice from improper reference to extraneous

offense. Ovalle v. State, 13 S.W.3d 774 (Tex. Crim. App. 2000). Testimony

referring to extraneous offenses can be rendered harmless by an instruction to

disregard, unless it is so clearly calculated to inflame the minds of the jury

and is of such a nature as to suggest the impossibility of withdrawing the

58
impression produced. Kemp v. State, 846 S.W.2d 289, 308 (Tex. Crim. App.

1992); Huffman v. State, 746 S.W.2d 212, 218 (Tex. Crim. App. 1988). Here,

although the Court gave the jury “an instruction to disregard” Vicki

Alexander, testimony regarding Appellant’s extraneous offense evidence was

arguably, “clearly calculated to inflame the minds of the jury” and was

intended to so prejudice the jury that it was impossible to withdraw the

impression produced- that Appellant has a history of preying on women. The

Court should have granted a mistrial.

POINT OF ERROR EIGHT

THE TRIAL COURT ERRED IN DENYING APPELLANT’S
MOTION FOR A MISTRIAL AFTER THE ADMISSION OF
VICKI ALEXANDER’S UNRESPONSIVE AND
PREJUDICIAL TESTIMONY

FACTUAL SUMMARY

During the testimony of Vicky Alexander the following exchange took

place:

BY MS. EMMONS: Let me show you what has been marked
for identification purposes as State’s
Exhibit 328. Without saying what it is
do you recognize this?

A: Yes, I do.

Q: And how do you recognize it?

59
A: It’s Jeffrey’s letter he wrote to me.

Q: Do you recognize his handwriting?

A: Yes.

Q: And you recognize that to be Jeffrey Prevost’s
handwriting?

A: Yes.

Q: And is that the original letter?

A: Yes, it is.

BY MS. EMMONS: Your Honor, at this time I would
offer State’s Exhibit 328, tender it
to Defense Counsel any
Objections.

MR. TANNER: No objections.

THE COURT: State’s Exhibit 328 is admitted.

MS. EMMONS: Permission to publish?

THE COURT: Alright. (RR-XXIII; p. 207-209).

Q: ....So you received this letter, what did you think?

A: You want me to tell you what I honestly think

Q: Yes, ma’am.

MR. TANNER: Excuse me. I’m going to object, as relevancy
Judge.

THE COURT: Over-ruled. You may answer the question.

60
 A: When I received the letter, I was very, very, angry. And
when he put in the letter he knew he was going to get the
death penalty, and I said: I want you to get it too.

MR. TANNER: I’m going to object that...that’s non-
responsive.

THE COURT: Sustained.

MR. TANNER: ...And we would ask the Court to now instruct
the jury to disregard her comment about what
she wants to happen to the Defendant.

THE COURT: The jury will disregard the last statement by
the witness.

MR. TANNER: ...We move for a mistrial.

THE COURT: That will be denied. (RR-XXIII; p. 208-209).

ARGUMENT AND AUTHORITIES

When it is apparent that an objectionable event at trial is so emotionally

inflammatory that curative instructions are not likely to prevent the jury being

unfairly prejudiced against the defendant, a motion for mistrial should be

granted. Kemp v. State, 846 S.W.2d 289, 308 (Tex. Crim. App.1992). In

determining whether an exception exists to the general rule that an instruction

renders the error harmless, this Court must look at the particular facts of each

case. Williams v. State, 643 S.W.2d 136 (Tex. Crim. App. 1982). For

example, in Robinette v. State, 816 S.W.2d 817 (Tex. App.--Eastland 1991, no

61
 pet.), the elicited testimony that the accused had bragged about killing a police

officer, was so inflammatory that a jury instruction to disregard did not cure

the error. The court remanded to the trial court for a new trial. In Hill v. State,

817 S.W.2d 816 (Tex. App.– Eastland 1991, pet. ref'd) the State's witness

testimony (that informant was dealing heroin) was so inflammatory as to be

uncorrectable by a judge's order to the jury to disregard the statement. The

cause was remanded for a new trial. Here, Vicky Alexander’s testimony

(interpreting Appellant’s Letter- State’s Exhibit 328) and describing it’s

content,45 was equally uncorrectable by a judge’s order to the jury to disregard

her statement. This evidence (suggesting Appellant knows he will get the

death penalty and his own sister wants him to get it as well) is so emotionally

inflammatory that curative instructions are not likely to prevent the jury from

being unfairly prejudiced against the defendant. The trial court should have

granted a mistrial.

POINT OF ERROR NINE

THE TRIAL COURT ERRED IN DENYING
APPELLANT’S MOTION FOR A MISTRIAL AFTER

45
Ms. Alexander testified: “When I received the letter, I was very, very, angry, and
when he put in the letter he knew he was going to get the death penalty...I want you to get it
too.”(RR-XXIII; p. 208-209). Appellant’s letter actually stated: “...I’m sure they will seek the
death penalty...It is only a matter on time before they execute me or send me to a mental
hospital.” (State’s Exhibit 328; RR-XXXII; p. 94).

62
 THE ADMISSION OF THOMESA HOLLINS
UNRESPONSIVE AND PREJUDICIAL TESTIMONY

FACTUAL SUMMARY

During the testimony of Thomesa Hollins the following exchange

occurred:

MS. EMMONS: ...And what did she do to try to protect herself, to
show that she wasn’t scared of him?

A: She shot at him.

Q: Because she felt she had to protect herself, right?

A: It all depends on the situation.

MR. TANNER: I’m going to object the prosecutor stating the
reasoning on why she thinks the Defendant’s mother
shot a gun at him.

THE COURT: Sustained.

MR. TANNER: And ask that the jurors be instructed to disregard the
last statement.

THE COURT: The jury will disregard the last statement by the
prosecutor.

MR. TANNER: Thank you. And we move for a mistrial.

THE COURT: That’s denied. (RR-XXVI; p. 79).

ARGUMENT AND AUTHORITIES

Appellant cites the same authority as previously listed under Point of
63
Error Eight. Here, the prejudicial and improper question by the prosecutor,

implying that Appellant’s mother was in fear of Appellant and therefore shot

at him with a gun, is arguably so inflammatory as to be uncorrectable by a

judge's order to the jury to disregard the statement. It is equally possible

Appellant’s mother had anger management and impulse issues leading her to

fire a gun at her son. The Court should have granted a mistrial.

POINT OF ERROR TEN

THE TRIAL COURT ERRED IN DENYING APPELLANT’S
MOTION FOR A MISTRIAL AFTER THE ADMISSION OF A
PREJUDICIAL QUESTION BY THE PROSECUTOR

FACTUAL SUMMARY

During the testimony of Lane Herkoltz the following exchange
occurred:

BY MR. GOODHART: Q: “....I think they teach ethics now.

BY MR. HERKOLTZ: A: They do.

BY MR. GOODHART: Q: They reason for that is because of
bribery.

BY MR. HERKOLTZ: A: Correct.

BY MR. GOODHART: Q: There’s a high incidence of bribery of
prison guards, correctional officers, inside
TDC because you’re 47th out of 50 States...”

BY MR. CORNELIUS: I’m going to object to this as not being
relevant to the issue in the case, your Honor.

64
 THE COURT: Sustained.

BY MR. CORNELIUS: And ask the jury be instructed to disregard it.

BY MR. GOODHART: Judge, it goes to the credibility of this witness
as to his underlying thought process as to how
he just classified this man, I mean, if he
doesn’t understand what is going on in the
prison system, how can he tell us, this jury
what the classification system is.

THE COURT: I sustained the objection. Ask another
question.

BY MR. CORNELIUS: And ask the jury be instructed to disregard it.

THE COURT; The jury will disregard the last statement by
the prosecutor.

BY MR. CORNELIUS: Move for a mistrial.

THE COURT; Denied. (RR-XXVII; p. 64-65).

THE COURT: The jury will disregard the last statement by
the prosecutor.

ARGUMENT AND AUTHORITIES

Appellant cites the same authority as previously listed under Point of

Error Eight. Here, the prejudicial and improper question by the prosecutor,

implying that the Texas Prison System is so corrupt due to bribery, that

Appellant’s is a greater danger to prison guards because the system of

classifying inmates is not reliable, is arguably so inflammatory as to be

65
uncorrectable by a judge's order to the jury to disregard the statement. The

Court should have granted a mistrial.

CONCLUSION

Appellant’s case should be reversed and remanded for a new trial.

Respectfully submitted.

__/s/____________________
DOUGLAS M. DURHAM
State Bar No: 06278450
2800 Post Oak Blvd. Ste. 4100
Houston, Texas 77056
(832) 390-2252 Telephone
(832) 390-2350 Fax
APPELLANT’S COUNSEL
JEFFREY KEITH PREVOST

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 CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the above and foregoing

Appellant's Brief was served on Assistant Criminal District Attorney by hand

delivery at the Court of Appeals mailbox for the Harris County District

Attorney on this 5th day of February 2015.

_/S/__________________
DOUGLAS M. DURHAM

67
 CERTIFICATE OF COMPLIANCE

I hereby certify that pursuant to Tex. R. Of App. Procedure 9.4(1)(3),

that the number of words in this Brief is less than 37,500 words to wit: 16,959

words, in compliance with Tex. R. Of App. Procedure, 9(i)(2)(B) on this the

5th day of February 2015.

____/S/__________________
DOUGLAS M. DURHAM

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