AP-77,034
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 7/20/2015 1:52:16 PM
Accepted 7/20/2015 2:22:10 PM
July 20, 2015 ABEL ACOSTA
NO. AP-77,034 CLERK
IN THE
COURT OF CRIMINAL APPEALS
AT AUSTIN, TEXAS
BRANDON DANIEL § APPELLANT
VS. §
THE STATE OF TEXAS § APPELLEE
APPEAL FROM THE 403RD JUDICIAL DISTRICT COURT
TRAVIS COUNTY, TEXAS
CAUSE NO. D-1-DC-12-201718
STATE’S BRIEF
ROSEMARY LEHMBERG
District Attorney
Travis County, Texas
Lisa Stewart
Assistant District Attorney
State Bar No. 06022700
Lisa.Stewart@traviscountytx.gov
AppellateTCDA@traviscountytx.gov
P.O. Box 1748
Austin, Texas 78767
(512) 854-9400
Oral Argument Not Requested Fax No. 854-4810
1
TABLE OF CONTENTS
TABLE OF CONTENTS .................................................................................................. 2
INDEX OF AUTHORITIES ............................................................................................ 4
STATEMENT OF THE CASE ........................................................................................ 5
STATEMENT REGARDING ORAL ARGUMENT ..................................................... 6
STATEMENT OF FACTS FROM GUILT/INNOCENCE ........................................... 6
Facts of this Capital Murder Committed at an Austin Walmart ................................................. 6
Evidence Recovered After Appellant Taken into Custody ......................................................... 9
Forensic Evidence ..................................................................................................................... 12
Evidence from Officer Padron’s Autopsy................................................................................. 12
Officer Padron’s Personal and Professional Background ......................................................... 13
Defense Evidence at Guilt/Innocence ....................................................................................... 15
STATEMENT OF FACTS FROM PUNISHMENT PHASE ...................................... 18
The Night of this Capital Murder Offense ................................................................................ 18
Lack of Remorse and Extraneous Bad Acts in Texas ............................................................... 18
Extraneous Bad Acts Committed in Colorado .......................................................................... 22
Extraneous Bad Acts and Disciplinary Violations in Jail ......................................................... 23
Appellant’s Mail and Recorded Phone Conversations in Jail ................................................... 26
Inmate Classification System and Prison “Society” ................................................................. 28
Officer Padron’s Personal and Professional History ................................................................ 30
Defense Evidence at the Punishment Phase.............................................................................. 32
State’s Rebuttal Evidence at Punishment ................................................................................. 38
The Verdict at the Punishment Phase ....................................................................................... 40
SUMMARY OF THE ARGUMENTS ........................................................................... 41
State’s Reply to Appellant’s First Point of Error ...................................................................... 41
State’s Reply to Appellant’s Second Point of Error ................................................................. 42
State’s Reply to Appellant’s Third Point of Error .................................................................... 43
2
STATE’S REPLY TO APPELLANT’S FIRST POINT OF ERROR ........................ 44
The evidence was legally sufficient to establish that there is a probability that appellant would
commit criminal acts of violence and constitute a continuing threat to society. ...................... 44
Standard and Scope of Review ............................................................................................. 44
Application of Law to Facts .................................................................................................. 45
STATE’S REPLY TO APPELLANT’S SECOND POINT OF ERROR ................... 52
Appellant did not suffer harm as a result of the trial court’s denial of his challenge for cause to
venireperson Reading. Alternatively, the trial judge did not err in denying appellant’s
challenge for cause to venireperson Reading............................................................................ 52
Appellant Cannot Show Harm .............................................................................................. 52
Alternatively, the Trial Judge Did Not Err in Denying the Challenge for Cause ................. 53
STATE’S REPLY TO APPELLANT’S THIRD POINT OF ERROR....................... 61
Appellant failed to preserve any alleged error for review because there was no adverse ruling.
Alternatively, the trial court did not abuse its discretion in limiting the voir dire hearing to the
expert’s qualifications and the basis of her findings. ................................................................ 61
Relevant Facts ....................................................................................................................... 61
Appellant Failed to Preserve Any Alleged Error for Review ............................................... 62
The Trial Judge Afforded Appellant a Proper Rule 705(b) Hearing .................................... 63
PRAYER .......................................................................................................................... 65
CERTIFICATE OF COMPLIANCE ............................................................................ 65
CERTIFICATE OF SERVICE ...................................................................................... 66
3
INDEX OF AUTHORITIES
Cases
Alba v. State, 905 S.W.2d 581 (Tex.Crim.App. 1995), cert.denied, 516 U.S. 1077 (1996)......... 63
Barley v. State, 906 S.W.2d 27 (Tex.Crim.App. 1995) ................................................................ 47
Bell v. State, 938 S.W.2d 35 (Tex.Crim.App. 1996), cert.denied, 522 U.S. 827 (1997). ............. 45
Beltran v. State, 728 S.W.2d 382 (Tex.Crim.App. 1987) ............................................................. 50
Berry v. State, 233 S.W.3d 847 (Tex.Crim.App. 2007) ................................................................ 50
Chambers v. State, 903 S.W.2d 21 (Tex.Crim.App. 1995) .......................................................... 44
Comeaux v. State, 445 S.W.3d 745 (Tex.Crim.App. 2014) .......................................................... 53
Davis v. State, 313 S.W.3d 317 (Tex.Crim.App. 2010) ........................................................ passim
Devoe v. State, 354 S.W.3d 457, 461-62 (Tex.Crim.App. 2011) ................................................. 45
Druery v. State, 225 S.W.3d 491 (Tex.Crim.App. 2007) ............................................................. 44
Estrada v. State, 313 S.W.3d 274 (Tex.Crim.App. 2010) ............................................................ 46
Feldman v. State, 71 S.W.3d 738 (Tex.Crim.App. 2002)....................................................... 58, 61
Freeman v. State, 340 S.W.3d 717 (Tex.Crim.App. 2011) .......................................................... 44
Fuller v. State, 253 S.W.3d 220 (Tex.Crim.App. 2008), cert.denied, 555 U.S. 1105 (2009) ...... 63
Gardner v. State, 306 S.W.3d 274 (Tex.Crim.App. 2009) ........................................................... 58
Gonzales v. State, 353 S.W.3d 826 (Tex.Crim.App. 2011) .............................................. 52, 58, 61
Goss v. State, 826 S.W.2d 162 (Tex.Crim.App. 1992), cert.denied, 113 S.Ct. 3035 (1993) ....... 64
Huffman v. State, 746 S.W.2d 212 (Tex.Crim.App. 1988) ........................................................... 50
Jenkins v. State, 912 S.W.2d 793 (Tex.Crim.App. 1995) (op. on reh’g.) ..................................... 62
Soliz v. State, 432 S.W.3d 895 (Tex.Crim.App. 2014) ........................................................... 44, 45
Williams v. State, 273 S.W.3d 200 (Tex.Crim.App. 2008)..................................................... 25, 49
Statutes
Art. 35.15(a), V.A.C.C.P. ............................................................................................................. 52
Art. 35.16(b)(3), V.A.C.C.P.......................................................................................................... 58
Art. 35.16(c)(2), V.A.C.C.P. ......................................................................................................... 58
Art. 37.071(h), V.A.C.C.P. ............................................................................................................. 5
Rules
Tex.R.App.Proc. 33.1 ............................................................................................................. 59, 63
Tex.R.App.Proc. 9.4(e) ................................................................................................................. 65
Tex.R.App.Proc. 9.4(i)(2)(A) ....................................................................................................... 65
Tex.R.Evid. 705(b) ..................................................................................................... 43, 62, 63, 64
4
NO. AP-77,034
IN THE
COURT OF CRIMINAL APPEALS
AT AUSTIN, TEXAS
BRANDON DANIEL § APPELLANT
VS. §
THE STATE OF TEXAS § APPELLEE
APPEAL FROM THE 403RD JUDICIAL DISTRICT COURT
TRAVIS COUNTY, TEXAS
CAUSE NO. D-1-DC-12-201718
TO THE HONORABLE COURT OF CRIMINAL APPEALS:
Now comes the State of Texas and files its brief in response to that of the
appellant.
STATEMENT OF THE CASE
The State indicted appellant for the capital murder of Austin Police Officer
Jaime Padron. (CR 98, 100). The jury found appellant guilty of capital murder as
alleged in the indictment. (CR 184). The trial court sentenced appellant to death
based on the jury’s answers to the punishment issues. (CR 189; RR 26: 221).
Appellant timely filed a motion for new trial, which was overruled by operation of
5
law. (CR 196). Although appeal to this Court is automatic, the appellant timely
filed notice of appeal. (CR 197). Art. 37.071(h), V.A.C.C.P.
STATEMENT REGARDING ORAL ARGUMENT
The issues presented in this case are not issues of first impression but
involve the application of facts to well-settled law. Thus, the State does not
request oral argument in this case, as it would not significantly aid the Court in the
resolution of the issues presented in this appeal.
STATEMENT OF FACTS FROM GUILT/INNOCENCE
Facts
of
this
Capital
Murder
Committed
at
an
Austin
Walmart
In the early hours1 of April 6, 2012, Walmart employee Sean McCarthy
encountered appellant2 while restocking water in the store. (RR 18: 21). Appellant
asked McCarthy to hold his produce bags, and appellant left the store to obtain
something. (RR 18: 22-24). Appellant looked “like he had a rough night,” but
McCarthy did not feel threatened by him. (RR 18: 23). Walmart retail manager
Lincoln LeMere called 3113 because appellant appeared intoxicated, and LeMere
feared he would be a danger to himself and others. (RR 18: 54).
1
The time was approximately midnight to 1 a.m. (RR 18: 24).
2
McCarthy identified appellant in the courtroom. (RR 18: 32-34).
3
The call was transferred to 911. (RR 18: 54).
6
Austin Police Officer Jaime Padron responded to the call, and he and
LeMere entered the store and encountered appellant. (RR 18: 58-59, 177, 179).
Officer Padron announced that he was with the Austin Police Department and told
appellant to stop. (RR 18: 59-60, 132). Appellant lowered his shoulder, ducked
away from Officer Padron, and ran for the exit. (RR 18: 59). Officer Padron gave
chase and tackled appellant from behind. (RR 18: 60). Walmart employee Monica
Lawson saw appellant pull a gun from his waistband as Officer Padron attempted
to subdue appellant and take his gun. (RR 18: 95-96). As Officer Padron tackled
appellant, LeMere heard a gunshot, and he heard an additional gunshot when
appellant and Officer Padron fell to the ground. (RR 18: 60-61, 63). Lawson’s co-
worker, Alma Ramirez, testified that she saw appellant put the gun to Officer
Padron’s neck and shoot him. (RR 18: 119-120).
LeMere realized appellant had a gun when he saw Officer Padron “bleeding
out.” (RR 18: 61). LeMere immediately jumped on appellant who raised his arm
and fired a third shot, which just missed LeMere’s right ear and night manager
Archie Jordy’s left ear.4 (RR 18: 61, 133-134). LeMere felt that that third shot
was meant for him. (RR 18: 62).
4
Jordy had followed appellant through the store because he suspected he was going to shoplift,
but appellant did not appear armed. (RR 18: 56, 129, 153).
7
LeMere pushed appellant’s arm to the ground, and McCarthy and Jordy
stomped on appellant’s arm, making him release the gun, and kicked the gun aside.
(RR 18: 62). Appellant raised his head from the floor, looked at Officer Padron,
“kind of laughed, chuckled and said, I killed a cop.” (RR 18: 64, 151). Officer
Padron never pulled a weapon of any kind when chasing appellant. (RR 18: 98).
It was obvious to the various Walmart employees5 that Padron was a police
officer because of his uniform, “all the gadgets,” and his apparent fitness. (RR 18:
38). Officer Padron was wearing a full Austin Police Department uniform. (RR
18: 38, 56). Officer Padron had not removed his gun from his gun belt. (RR 18:
64). The security hood on Officer Padron’s holster was still in the locked position
with his gun inside the holster. (RR 18: 204-205).
Walmart employees tried to keep Officer Padron alive while police arrived
at the scene and handcuffed appellant. (RR 18: 35). Will Garlow removed his
shirt and applied pressure to Officer Padron’s neck until the squirting blood
stopped. (RR 18: 166-167). Garlow talked to Officer Padron and attempted to
keep him awake. But, Officer Padron never responded verbally, and he barely
focused his eyes. (RR 18: 166, 167-168). Garlow and Austin police officer Chris
Kroger attempted to clear Officer Padron’s airway, but it was too late, as Officer
5
Walmart employees Monica Lawson, Alma Ramirez, and William Garlow all immediately
recognized that Officer Padron was a police officer because of his uniform and badge. (RR 18:
94, 118-119, 162). Austin police officer Steve Martinez was in full uniform during trial and
displayed it for the jury since Officer Padron had worn the same type uniform. (RR 18: 217).
8
Padron had bled out. (RR 18: 167, 181). EMS pronounced Officer Padron dead at
the scene. (RR 18: 205).
Evidence
Recovered
After
Appellant
Taken
into
Custody
Austin police officers removed appellant from the Walmart and searched
him for additional weapons. (RR 18: 235). Police found a magazine with six .380
hollow point bullets6 in appellant’s pocket. (RR 19: 34). Homicide Detective
Brett Bailey collected the appellant’s firearm at the scene.7 (RR 19: 64). The
firearm, a Jimenez Arms .380, still contained the magazine in the grip of the
weapon. (RR 19: 65; SX49). The firearm had one live .380 cartridge in the
chamber and one in the magazine. (RR 19: 65-66; SX27). Thus, when Detective
Bailey found the firearm, it was capable of firing two more rounds. (RR 19: 66).
Firearms examination determined that the three casings found at the scene had all
been fired from appellant’s gun. (RR 20: 145-146).
Police also searched the backpack appellant had with him and found Reese’s
Peanut Butter ice cream bars, Little Debbie Oatmeal Crème Pies, three bags of
peanuts, filet mignon steaks, beef jerky, Hostess CupCakes, and two bottles of
6
Detective Bailey testified that hollow point bullets typically cause more damage upon impact
than lead ball ammunition. (RR 19: 62).
7
State’s exhibit 62 reflected appellant purchased this weapon on February 23, 2009, in Fort
Collins, Colorado. (RR 20: 60-61). State’s exhibit 62 was admitted into evidence without
objection. (RR 20: 60).
9
Korbel Champagne. (RR 18: 235; RR 22: 57). Appellant had killed Officer
Padron over $56.90 worth of shoplifted items. (RR 22: 62; SX78).8
Upon being taken into custody, appellant asked Austin police officer Albert
Arevalo9 questions regarding the county of the offense, the relative leniency of
Travis County versus Williamson County, and if he would get life or death for
what he had done. (RR 18: 245). Appellant winked and smiled at Officer Arevalo
as he put him in a patrol car. (RR 18: 243). Officer Arevalo noticed that appellant
had red, watery eyes and slurred speech and seemed sleepy. (RR 18: 248). Yet,
appellant was alert and oriented according to EMS protocol and politely answered
questions. (RR 18: 222). Appellant confirmed that he had no injuries or medical
problems, although he did have “blow back” blood on his face from Officer
Padron’s fatal injury. (RR 18: 222; RR 19: 37-38; SX7). Appellant also told EMS
technicians that he had not consumed any alcohol or drugs. (RR 18: 222).
Appellant asked EMS technician Christopher Lester if he was going to get life in
prison for “this.” (RR 18: 223). Appellant showed no emotion; he was “very
blank, very cold.” (RR 18: 224).
8
The evidence of the specific food items and the total coast thereof was admitted at the
punishment phase. (RR 22: 57, 62).
9
Officer Arevalo spelled his name for the court reporter as “Arevalo,” but it is recorded in the
record as “Arevelo.” (RR 18: 238). The State uses the spelling of the name as dictated into the
record by the officer.
10
During transport to police headquarters, appellant talked to himself and
made a comment about “blasting” one of the officers in the car. (RR 19: 39, 45;
SX15). At headquarters, appellant saw an old police department motorcycle that
he thought was cool, and he spontaneously admitted “I killed a cop.” (RR 18: 248-
249; RR 19: 113). Appellant spoke matter of factly, without emotion. (RR 19:
114). Later, when a nurse drew appellant’s blood pursuant to a warrant at the
Travis County Jail, appellant chuckled, looked at his hands, and said “I guess I got
that cop’s blood on my hands.” (RR 19: 98-99). Appellant, indeed, had blood on
his hands. (RR 19: 98).
Appellant waived his Miranda rights and spoke with police. (RR 19: 117-
118). The State played appellant’s recorded interrogation for the jury. (RR 19:
142; SX59). Appellant appeared cognizant of his actions, used appropriate
terminology, and did not present any indication of mental illness or lack of mental
fitness. (RR 19: 119). Appellant admitted to have recently taken Xanax, but he did
not seem intoxicated. (RR 19: 120). Appellant knew every single detail involving
his murder of Officer Padron, including that he held his gun against Officer
Padron’s skin. (RR 19: 131; RR 20: 57). He knew that he shot an Austin Police
Officer, and he admitted numerous times that he was the one who shot Officer
Padron. (RR 20: 57).
11
Forensic
Evidence
DNA testing confirmed the presence of Officer Padron’s DNA profile on
appellant’s right hand. (RR 20: 84). Forensic testing of appellant’s blood showed
no alcohol in his blood but revealed a high level of alprazolam (aka Xanax) and
marijuana. (RR 20: 89, 93-94, 100). Text messages recovered from appellant’s
cell phone revealed that on April 4, 2012, appellant arranged for the purchase of
eight bars of Xanax and that, the next day, he increased that purchase request to ten
bars. (RR 20: 24). Police executed a search warrant on appellant’s apartment and
discovered sticky notes reading “stop fucking yourself up” and “when I rise to
power, you will be sterilized.” (RR 20: 29-30, 32).
Evidence
from
Officer
Padron’s
Autopsy
Officer Padron suffered a gunshot wound to his neck, with the entrance
wound under the left side of his neck (SX65) and the exit wound in the back right
of his neck (SX66). (RR 20: 111). This gunshot travelled through Officer
Padron’s voice box, fractured his fifth cervical vertebra (neck bone), and damaged
two arteries that carried blood to his brain. (RR 20: 113). This gunshot created a
large tear in the right common carotid artery and tore apart the vertebral artery.
12
(RR 20: 113-114). The gunshot injuries to these arteries caused rapid
hemorrhaging and were fatal.10 (RR 20: 116-118).
Black gunpowder soot encircled the entrance wound on Officer Padron’s
neck, confirming appellant placed the gun against his skin when he fired. (RR 20:
122). The muzzle of the gun actually made contact with Officer Padron’s skin,
leaving a muzzle imprint. (RR 20: 123). The medical examiner had no doubt that
appellant pressed the gun barrel up against Officer Padron’s neck when he shot
him. (RR 20: 124). The overall path of the bullet was front to back and to the
right. (RR 20: 114).
Appellant had also shot Officer Padron in the chest through the right breast
pocket of his uniform. (RR 20: 112). But, Officer Padron had been wearing an
armored vest so he did not suffer any damage to his body from this gunshot. (RR
20: 112). Firearms examination revealed that the distance of the gun’s muzzle to
Officer Padron’s uniform was less than 14 inches. (RR 20: 149).
Officer
Padron’s
Personal
and
Professional
Background
Officer Padron grew up near San Angelo, Texas. (RR 20: 170). After
graduating high school in 1989, he joined the Marines and did a tour in Desert
Storm, the first Gulf War. (RR 20: 170-171). He received many commendations
10
The medical examiner confirmed that hollow point bullets cause more damage to a person’s
body than lead filled bullets. (RR 20: 116).
13
while in the Marines and an honorable discharge. (RR 20: 171). After serving
four years in the Marines, Officer Padron became a corrections officer and then a
police officer, fulfilling a life-long dream. (RR 20: 172).
Officer Padron was a servant in his church, in his community, and for his
country. (RR 20: 172). Officer Padron served 14 years with the City of San
Angelo Police Department and became a detective. (RR 20: 173). He also worked
with middle school students in San Angelo and had a positive impact on their lives,
leading students to become Marines or police officers. (RR 20: 173-174).
Supporting his wife’s career choice, Officer Padron moved to Austin with
his family. (RR 20: 175). He became a patrol officer with the Austin Police
Department, and he was very happy. (RR 20: 175). Officer Padron’s brother had
offered him a more lucrative job in San Angelo, but Officer Padron declined it
because he loved being a police officer and being in Austin with his two young
daughters. (RR 20: 176).
At the time of his murder, Officer Padron was planning his life with a new
girlfriend. (RR 20: 178). He and his girlfriend were looking for a home with
property for horses, which he loved. (RR 20: 178). But, the “world turned to a
very ugly place” for the Padron family the day their son and brother was killed.
(RR 20: 181). After a funeral in Austin, the family took Officer Padron back home
14
to San Angelo. (RR 20: 181). The City of San Angelo dedicated a park in Officer
Padron’s honor. (RR 20: 181-182).
Defense
Evidence
at
Guilt/Innocence
Jenna Feland dated appellant from July of 2008, till December of 2011,
when he ended the relationship. (RR 20: 185). Appellant used drugs while the
couple lived in Colorado, mostly using marijuana, but he also did mushrooms,
acid, and Ecstasy. (RR 20: 189-190). In fact, appellant took Ecstasy daily. (RR
20: 190).
Feland claimed that appellant did not do well after their break up, and
appellant told Feland he was really sad and “in a downward spiral.” (RR 20: 12).
Appellant started drinking and taking Xanax. (RR 20: 193). Despite the alleged
downward spiral, appellant had a new girlfriend, Nikki Nance, that same
December, and he and Feland barely had contact prior to this offense. (RR 20:
206, 231-232).
Feland confirmed that appellant did not have a mental illness. (RR 20: 207).
By impeaching Feland with her grand jury testimony, the State established that
appellant was not generally a depressed person and that Feland was not aware of
appellant having mental problems. (RR 20: 228, 234). Feland described appellant
as a quiet and reserved person who got depressed when he got in trouble. (RR 20:
234-235).
15
On cross-examination, the State also established that Feland and appellant
discussed him selling his story for $100,000, although she denied it at trial. (RR
20: 200). State’s exhibit 71, a videotaped recording of Feland visiting appellant in
jail on April 24, 2012, showed appellant had the idea to sell his story of this capital
murder, and Feland laughed throughout the video. (RR 20: 214; RR 23: 76).
Also, while in jail, appellant created a secret code so that he and Feland could
communicate without law enforcement understanding what they had written. (RR
20: 215).
Dr. Matthew Masters, an addiction medicine practitioner, reviewed multiple
evidentiary items from the defense in preparation for his trial testimony. (RR 21:
18). Dr. Masters testified that Xanax was a highly addictive drug and the number
one benzodiazepine on the street because it was fast-acting. (RR 21: 5, 11-12). Dr.
Masters observed appellant on the crime scene video at Walmart, and the manner
in which appellant exited his motorcycle was consistent with a person intoxicated
by a benzodiazepine. (RR 21: 19). The SWIFS lab report showed appellant had
toxic levels of alprazolam in his system seven hours after his arrest, and his
toxicity level was consistent with having taken 8 to 10 Xanax pills. (RR 21: 20-
21). Thus, Dr. Masters opined that appellant’s statement to police the night of the
offense was totally unreliable due to confabulation. (RR 21: 23-24). Dr. Masters
16
described appellant as an addict based on his history, his behavior, and his lab
reports. (RR 21: 27).
On cross-examination, Dr. Masters confirmed that prior to April 2012 he had
not treated appellant or seen him in a professional manner. (RR 21: 33). Dr.
Masters conducted only a diagnostic evaluation based on what appellant told him,
what the defense provided him, and the grand jury testimony of appellant’s new
girlfriend. (RR 21: 33). Dr. Masters did not consult any members of appellant’s
family or a psychiatrist appellant had previously seen11, and Dr. Masters was not a
psychiatrist. (RR 21: 34). Dr. Masters had not seen the crime scene videotape to
know that appellant’s statement to police was consistent with that tape, thus
undermining his opinion that appellant’s statement was due to confabulation. (RR
21: 38). Appellant’s statement in the police car that he killed a police officer also
rebutted Dr. Masters’ assessment of confabulation. (RR 21: 38-39).
After approximately one hour of deliberations, the jury found appellant
guilty of capital murder as alleged in the indictment. (RR 21: 99, 101).
11
At punishment it was revealed that appellant self-reported that he had seen a psychiatrist in
sixth grade, but there was no evidence of the alleged doctor’s name or a diagnosis. (RR 24: 155-
156).
17
STATEMENT OF FACTS FROM PUNISHMENT PHASE
The
Night
of
this
Capital
Murder
Offense
Appellant and his roommate Kelvin Davis12 drank and smoked marijuana
the night leading to the murder of Officer Padron. (RR 22: 123). Appellant drank
tequila, at least a half a liter of it, and Davis drank rum. (RR 22: 124, 145-146).
Appellant also took Xanax; in fact, he took approximately six pills, more than
Davis thought appellant could handle. (RR 22: 125). That evening, Davis and
appellant walked to a nearby convenience store, and appellant talked about robbing
the store. (RR 22: 127-128). Davis tried to downplay appellant’s idea to rob the
store because appellant didn’t need any further legal troubles. (RR 22: 128).
Appellant responded that he had gotten “away with worse shit.” (RR 22: 128-129).
Lack
of
Remorse
and
Extraneous
Bad
Acts
in
Texas
Officer Cory Knop transported appellant from the Walmart to the Austin
Police Department that fateful day. (RR 22: 18). Appellant nonchalantly admitted
that he killed a cop. (RR 22: 19). Appellant also asked Officer Knop if he
remembered him, which Officer Knop did. Officer Knop met appellant February
2, 2012, when he arrested him for driving while intoxicated. (RR 22: 19-20).
Officer Knop conducted field sobriety tests on appellant and transported him to
12
In January of 2012, Davis searched for a roommate in Austin on Craigslist and found
appellant. (RR 22: 116).
18
jail, all of which was videotaped. (RR 22: 21; SX72). During the DWI encounter,
appellant volunteered that he had worked multiple times as an informant for the
police in Colorado. (RR 22: 27). Appellant asked Officer Knop not to impound
his vehicle and if there were anything he could do to help appellant with the
charges. (RR 22: 28). Appellant pleaded that he was a productive member of
society and not a bad guy. (RR 22: 28-29). Appellant asked Officer Knop if he
thought the arrest was right and if he ever felt bad or if he had done the wrong
thing. (RR 22: 29-30). Appellant was polite and did not seem threatening to
Officer Knop. (RR 22: 22-23). But, appellant was also polite the night he
murdered Officer Padron. (RR 22: 23).
About five weeks earlier, on December 27, 2011, DPS Trooper Charles
Hoover stopped appellant for speeding on a highway between Amarillo and
Lubbock. (RR 22: 167-168). The odor of marijuana from appellant’s vehicle was
quite strong, and Trooper Hoover found marijuana in appellant’s vehicle and
arrested him. (RR 22: 169, 171). Trooper Hoover seized from appellant’s vehicle
a grinder, marijuana pipe, and three pill bottles for prescription marijuana from
Colorado that were not in appellant’s name. (RR 22: 174-175; SX81, 82).
Videotaped evidence from this arrest showed appellant was very compliant with
the officer and stated that he wanted to be a productive member of society. (RR
22: 168-169, 173; SX80).
19
Austin Police Detective Roy Rector was a certified forensics examiner, and
he analyzed evidence from two computers seized after appellant’s arrest for
murdering Officer Padron. (RR 22: 44). Rector retrieved four photographs
(SX73-76) from the logical path Users\danielbra\documents\MY
BACKUP\JENNA BACKUP\Pictures. (RR 22: 45-48). The file was created May,
26, 2011, but the pictures were taken in March and May of 2009, all by the same
camera. (RR 22: 46-47). The pictures (SX 73-76) were of appellant’s tattooed
arm holding a gun and of a bullet hole in a wall. (RR 22: 45, 47; RR 23: 72;
SX83). Nikki Nance had seen appellant’s gun approximately ten times; appellant
thought having a gun looked “cool.” (RR 22: 95-96). Appellant also bragged to
Nance that he would drive really fast on his motorcycle and that he had outrun the
police in Colorado. (RR 22: 97).
Kristina “Nikki” Nance testified for the State with a testimonial immunity
agreement. (RR 22: 87). In late 2011 or early 2012, appellant met Nance through
a posting on Craigslist. (RR 22: 89). They used lots of drugs, to-wit: Xanax,
cocaine, acid, mushrooms, and Ecstasy, most of which appellant purchased for
them. (RR 22: 90-91). As Nance’s and appellant’s relationship continued, their
drug usage increased. (RR 22: 101-102). Appellant began using heavier drugs and
mixing them. (RR 22: 102). Nance recalled a time when appellant wanted to find
20
an “eight ball” of cocaine. (RR 22: 92). Appellant tried to get his roommate Davis
to do cocaine, but he refused. (RR 22: 119-120).
Nance’s and appellant’s friendship ended when she fronted him $600 to
purchase drugs, and he never paid her back even though he made a lot more money
than Nance did and made her late on her rent. (RR 22: 93-94, 95). Appellant once
told Davis that he would kill Nikki Nance if she damaged his car. (RR 22: 132).
Yet, appellant did not seem psychotic or violent to Davis, even when appellant
used drugs. (RR 22: 132-133).
Appellant seemed intelligent to Davis. (RR 22: 132). Appellant never
discussed any family issues with his mother or father and never lamented a bad
childhood. (RR 22: 133). Appellant told Davis about outrunning the police on his
motorcycle. (RR 22: 129).
While in the Del Valle jail after his arrest for this capital murder, appellant
met inmate Luis Escalante because Escalante was curious about the jail uniform13
appellant was wearing. (RR 23: 33). Appellant asked Escalante if he had seen the
person on the news who had killed the cop at Walmart. (RR 23: 34). Appellant
showed Escalante a picture of himself from the newspaper, and appellant smirked
and chuckled about the killing. (RR 23: 35). Escalante asked appellant if he had
13
Escalante explained that persons wearing the orange and white stripes are “high felons,”
persons who committed aggravated crimes or murders. (RR 23: 33).
21
any remorse for the killing or sympathy for his victim, and appellant shook his
head “no.” (RR 23: 36).
Appellant admitted to Escalante that he grabbed Officer Padron by the neck
and shot him and that he fired several times. (RR 23: 52-53). Appellant claimed
he went to Walmart to get pills “to get his mind right.” (RR 23: 53). He had
planned to rob the Walmart pharmacy but not harm the police officer. (RR 23: 54).
Appellant also told Escalante that Officer Padron told him he was taking him in
because he was intoxicated. (RR 23: 54-55).
Extraneous
Bad
Acts
Committed
in
Colorado
On January 25, 2007, Shawn Wycoff of the Colorado State Patrol clocked
appellant going 80 m.p.h. in a 55 m.p.h. speed zone on his “highlighter green”
motorcycle. (RR 23: 8-9. 11). Wycoff attempted to pull over appellant for
speeding, but appellant accelerated and fled, making numerous lane changes and
reaching speeds of 90-95 m.p.h. (RR 23: 9, 14). Wycoff radioed another trooper
for assistance who was able to stop appellant. (RR 23: 10-11). Appellant
presented his driver’s license for identification, but he did not have an endorsement
allowing him to drive a motorcycle. (RR 23: 11). The trooper arrested appellant
for improper endorsement on his license, eluding a police officer, and possession
of marijuana, which the trooper found in appellant’s pants pocket. (RR 23: 12-13).
Appellant admitted that he was out joyriding, racing a friend on the interstate, and
22
he fled from police because he didn’t want to get caught, lose his license, or lose
his motorcycle, which was without plates. (RR 23: 12).
In April of 2012, Caresa Marino, a patrol officer in Cheyenne, Wyoming,
saw a news report about appellant killing Officer Padron. (RR 23: 19-20).
Marino’s immediate reaction was “wow, I know that kid. He threatened me in the
sixth grade.” (RR 23: 20). Marino was not surprised to see appellant on the news.
(RR 23: 20).
Marino and appellant attended school together in Parker, Colorado. (RR 23:
21). In November of 1999, appellant threatened Marino when she was playing
soccer with her friends at recess. (RR 23: 22, 24). Totally unprovoked, appellant
ran up to Marino, told her to lock her doors and windows because he was going to
go to her house and rape her. (RR 23: 22). Appellant also called Marino a “bitch”
and a “fucker.” (RR 23: 22). Appellant and his friends claimed he was just joking,
but Marino did not find it funny. (RR 23: 27, 28).
Extraneous
Bad
Acts
and
Disciplinary
Violations
in
Jail
On May 20, 2012, appellant reported to corrections officer Farial Garrie in
the maximum security section of the Del Valle jail that he had found a bunch of
green and orange pills in the jail dayroom and that he had taken them in a suicide
attempt. (RR 22: 149-151). Appellant was transported to Brackenridge Hospital
for the apparent suicide attempt. (RR 23: 74). The physician’s summary reflected
23
that appellant claimed to have taken a bag of pills he found taped under a chair.
(RR 23: 74; SX84). The records further reflected that appellant decompensated in
the emergency room and required intubation and mechanical ventilation. (RR 23:
75). But, appellant’s urine and serum drug screens were negative. (RR 23: 75).14
Furthermore, corrections officers had searched the dayroom before allowing
inmates into it, and they had not found any pills. (RR 22: 152-153).
Corrections officers searched appellant’s cell thereafter and found a strip of
paper with a key to decipher coded messages from appellant. (RR 22: 162-163).
Corrections officers found further evidence that appellant intended to bypass jail
security by sending the coded paper to his mother through correspondence to his
attorney. (RR 22: 163).
In June of 2012, appellant was housed in a psychiatric observation cell in the
Del Valle jail. (RR 22: 64). On June 3, 2012, corrections officer Dustin Rade
searched appellant’s cell for contraband and found hooch, ingredients for an
intoxicating beverage, hidden behind the toilet. (RR 22: 65-66). Appellant
violated jail rules by possessing the hooch. (RR 22: 67). Officer Rade again found
contraband items in appellant’s cell on August 17, 2012. (RR 22: 68). Officer
Rade found six pills hidden in the window ledge. (RR 22: 68-69). Appellant
14
During the defense presentation of evidence at the punishment phase, Dr. Harold Scott
testified that, from his review of appellant’s medical records, he believed appellant took an
overdose of Haloperidol, an antipsychotic drug. (RR 25: 168, 173). Haloperidol was the generic
version of Haldol, the most common psychological drug in an institutional setting. (RR 25: 168,
173). Dr. Scott testified that the hospital did not screen for Haldol. (RR 25: 172).
24
violated jail rules by possessing the pills, which could only be prescribed by
medical staff. (RR 22: 70). Appellant also kept in his cell a list with the jailers’
names and their routines and activities. The list of names contained various
descriptions of the officers, e.g., appellant said Officer Rade “equals the devil.”
(RR 22: 81-82).
In October of 2012, Escalante encountered appellant having a secret talk
with another inmate, Troy Williams, who was housed across from appellant. (RR
23: 36-37, 67). Appellant and Williams admitted to Escalante that they were
planning an escape when appellant was transported for his court hearing in January
of 2013. (RR 23: 36-37, 67). Escalante actually overheard them discussing escape
plans on two different occasions. (RR 23: 38). Williams explained to Escalante
that appellant planned for someone to come to the jail with a gun and start shooting
corrections officers. (RR 23: 37, 38). The day before Escalante testified in this
trial, he overheard appellant telling another inmate that Escalante was not
trustworthy and was a “snitch.” (RR 23: 39).
On August 6, 2013, Travis County Sheriff’s Deputy Donald MacIntyre
heard a commotion and applause coming from the dayroom. (RR 23: 196). He
looked into the dayroom and saw appellant taking a bow among the inmates. (RR
23: 196). The inmates had just watched a news story on the television regarding
appellant and a court hearing in this capital murder. (RR 23: 196-197). After
25
appellant took his bow, an inmate yelled “fuck the police,” and appellant
acknowledged that inmate by raising his fist in the air. (RR 23: 202). A camera in
the jail captured this event, and the video of it (SX97) was played for the jury. (RR
23: 204).
Appellant’s
Mail
and
Recorded
Phone
Conversations
in
Jail
Due to the report that appellant planned to overtake a corrections officer to
escape, Austin Police Detective David Fugitt realized that he needed to check
appellant’s phone calls daily for the officers’ safety. (RR 23: 83-84). Detective
Fugitt listened to approximately 16 hours of appellant’s recorded phone
conversations. (RR 23: 84). Fugitt also read appellant’s mail and emails and
watched video of his visitations. (RR 23: 84). Appellant never expressed remorse
for killing Officer Padron in any of those communications. (RR 23: 84). His only
expression of remorse came during his interrogation, and it was initially in regard
to himself. (RR 23: 84).
The State played SX85, a phone conversation between appellant and his
mother recorded on April 25, 2012, while appellant was in jail. (RR 23: 76-77).
Appellant told his mother that he had been sent to the health services building in
the jail for being depressed. (RR 23: 77). But, he disagreed with the depression
diagnosis because he was joking about being depressed or committing suicide.
(RR 23: 77). Appellant also wrote his sister after a hospital visit. (RR 23: 114;
26
SX91). Appellant wrote that he was put in the hospital after he joked about no
sharp objects and called jail officials “stupid.” (RR 23: 114).
On March 10, 2013, appellant had another recorded phone conversation with
his mother. (RR 23: 79; SX86). In that conversation, appellant gave his mother a
code for a secret alphabet so they could bypass security at the jail in regard to their
mail. (RR 23: 79). Appellant had drawn an image of an alien utilizing a shading
technique where the letters of the alphabet were written inside the image. (RR 23:
79-80). Appellant called his mother again on March 31, 2013, and discussed
murderabilia. (RR 23: 81). In another phone conversation with his mother,
appellant said an inmate offered him $30 for his artwork, the most money he knew
of being offered for artwork. (RR 23: 101). So, appellant made a copy of the
artwork to sell “just for the bragging rights.” (RR 23: 101-102).
Anthony Angel, with the Travis County Sheriff’s Office security threat unit,
copied appellant’s mail at the request of Detective Fugitt. (RR 23: 106).
Appellant primarily wrote letters to his mother, sister, and Feland. (RR 23: 110).
His mother set up a pen pal account for him on meet-an-inmate.com, and he asked
her to make his profile sound “more bad” because people might be looking for
someone “more criminal-ish.” (RR 23: 112). Appellant wrote his mother that he
was at the top of the prison pecking order in relation to crimes committed. (RR 23:
113; SX90). In letters to Feland, appellant said he did not like being in the general
27
prison population because he didn’t particularly get along with inmates or cops
because they were “not [his] type of people.” (RR 23: 115). Appellant reminded
Feland to allow him to run the defense and to not talk to anyone on his legal team
because “they [were] only out for themselves.” (RR 23: 116; SX93). In another
letter, appellant told Feland “not much else going on. Just living the dream. I’m
retired at 25.” (RR 23: 118; SX95). He added a smiley face. (RR 23: 118).
According to Deputy Angel, coded mail presented security concerns
regarding escape plans or attacks on officers or other inmates. (RR 23: 107).
Inmates who kept notes on the movements of guards in the jail also presented
security concerns regarding escape attempts or assaults on staff. (RR 23: 107).
Inmate
Classification
System
and
Prison
“Society”
Stephen Rogers, a retired warden and corrections officer, testified regarding
the prison classification system for inmates. A person sentenced to life without
parole was classified as a G3 and was in the general population. (RR 23: 134). A
G3 classified inmate had all the privileges15 of a minimum security G2 inmate
except that he could not be housed in a dormitory outside the prison but within the
outer fence. (RR 23: 135). The G3 inmate had the same contact with prison staff
and volunteers as a G2 and went to chow and walked the hallways without
handcuffs. (RR 23: 136). The prison provided food, beds, and television to the
15
These privileges included contact visits and commissary eligibility. (RR 23: 135).
28
prisoner; radios were available for purchase in the commissary. (RR 23: 190).
Prisoners in the general population were allowed to make phone calls, receive
emails, and have contact with family members. (RR 23: 160, 191). Yet, prisoners
in the general population sometimes attacked, caused serious bodily injury, and/or
killed prison guards. (RR 23: 191). On the other hand, a prisoner under a death
sentence was classified like an administrative segregation prisoner, i.e., he was
confined to his cell 23 hours a day and allowed one hour for recreation. (RR 23:
138).
Rogers discussed the problem with inmates making weapons in prison with
some prisoners smart enough to make weapons out of “just about anything[.]” (RR
23: 148-154). And, if a prisoner couldn’t make a weapon, he had the opportunity
to obtain one from another inmate. (RR 23: 154). And, prisoners had access to
dangerous items through prison industry. (RR 23: 155).
Prisoners also found ways to access contraband, with cell phones being the
foremost problem.16 (RR 23: 157). Prisoners often used cell phones to contact
their victims or persons who testified against them. (RR 23: 157). Drugs were
likewise a problem in the prison system and easier to smuggle than cell phones.
16
One prisoner even managed to access Rogers’ Facebook account even though he was in
permanent lockup. (RR 23: 157).
29
(RR 23: 158). Many prisoners were adept at making alcoholic beverages, called
hooch or chalk. (RR 23: 158-159).
As a warden, Rogers would have concerns with an inmate who attempted to
communicate with people outside of prison through coded mail. (RR 23: 159).
Such a prisoner presented a threat to correctional officers, other inmates, and even
the public. (RR 23: 160-161). Rogers would also have security concerns about a
prisoner who tracked the activities of correctional officers. (RR 23: 161).
Prisoners inclined to commit acts of violence would have opportunities to commit
acts of violence or kill while in prison. (RR 23: 164). And, prisoners who had
animus toward police officers would have opportunities in prison to hurt them.
(RR 23: 164).
Officer
Padron’s
Personal
and
Professional
History
Officer Padron’s older sister, Linda Diaz, testified that Officer Padron
enlisted in the Marine Corps when he was just 17 years old and still in high school.
(RR 23: 210). After service with the Marines, Officer Padron worked as a
corrections officer, first for the Eden Detention Center and then the San Angelo
Police Department. (RR 23: 210). Officer Padron moved to Austin and became
employed with the airport police and then transferred to the Austin Police
Department. (RR 23: 210-211). Killed at age 40, Officer Padron had given more
30
than half his life serving his country and his community and protecting the public.
(RR 23: 211).
Diaz described her brother as a very honorable man of integrity and
commitment. (RR 23: 211). She described Officer Padron’s first act of bravery as
a rookie police officer when he twice ran into a burning building to save victims.
First, he attempted to save two children, and then he ran back into the house to
save a fellow officer who had not emerged from the burning home. (RR 23: 212).
Although divorced, Officer Padron was a dedicated father to his two young
daughters, aged 6 and 10 at the time of his death. (RR 23: 212). He was even
involved in their school because he loved being around children. (RR 23: 213).
While working full-time for the San Angelo Police Department, Officer
Padron continued his education, earning degrees in psychology and criminal
justice. (RR 23: 213). He graduated with honors. (RR 23: 213). And, Officer
Padron had a positive impact on his nieces and nephews. (RR 23: 213). One
nephew was following in his footsteps and had enlisted in the Marines. (RR 23:
213).
Officer Padron was “very caring” and “very loving.” (RR 23: 214). His
daughters missed their “tremendous daddy” time. (RR 23: 214). Officer Padron
was also very close to his parents, especially his father who was not in very good
health. (RR 23: 214). Officer Padron’s parents and siblings attended the trial, and
31
having to hear the testimony was “horrifying” and “almost unbearable.” (RR 23:
214). Diaz could see her parents’ pain every day and testified that “no parent
should have to go through this” and “[h]is little girls shouldn’t have to go through
their life without their father.” (RR 23: 214).
Defense
Evidence
at
the
Punishment
Phase
Travis County corrections officer Richard Low had contact with appellant
during his two-year time in the health services building. (RR 24: 10). Deputy Low
described appellant as compliant and respectful to him. (RR 24: 11). But, on
cross-examination, Deputy Low testified that an inmate was not compliant if he
made hooch, hoarded prescription pills, or tracked the movements and activities of
corrections officers. (RR 24: 14-15). All those activities were violations of jail
regulations, as was sending coded messages to civilian persons through legal mail
in the jail. (RR 24: 15). Appellant further violated jail regulations by giving
himself a homemade tattoo. (RR 24: 39). Psychological evidence showed
appellant was capable of following rules if he so chose, but he did not like to be
controlled by other people. (RR 24: 127, 151).
Dr. James Ascough, employed with the USDA, testified via Skype for the
defense. (RR 24: 43). He met the appellant through a work-study program when
appellant was a student at Colorado State University. (RR 24: 45). Dr. Ascough
described appellant as a very good programmer. (RR 24:49). Appellant had Dr.
32
Ascough had co-authored a chapter in a book entitled Advances in Nitrogen
Management for Water Quality. (RR 24: 53-54). Appellant worked with Dr.
Ascough at the USDA for approximately 18 months, from 2009 to Christmas 2010.
(RR 24: 56). Dr. Ascough encouraged appellant to continue working with him and
to attend graduate school, but appellant wanted to begin working and earn money.
(RR 24: 57-58). Appellant took the job with Hewlett-Packard in Austin, and the
two ceased contact in early to mid 2011. (RR 24: 57-58). Dr. Ascough thought
appellant was a quiet, hardworking, and respectful “kid,” and he was “stunned”
when he heard about appellant killing Officer Padron. (RR 24: 59).
Cross-examination revealed that Dr. Ascough actually knew very little about
appellant. (RR 24: 66). He did not know that appellant used marijuana and
alcohol daily and that he regularly used cocaine, mushrooms, ecstasy, and acid
during his college career. (RR 24: 65-66). Dr. Ascough was aware that appellant
had a girlfriend, but he didn’t know her name. (RR 24: 65). Appellant told Dr.
Ascough about his motorcycle, that he liked to go fast, and that he eluded police on
it. (RR 24: 67). Appellant was not embarrassed about that. (RR 24: 67).
Dr. William Carter prepared a psychological study on appellant for the
defense. (RR 24: 78). Dr. Carter twice interviewed appellant in 2014. (RR 24:
83). In early adolescence, appellant began to emotionally withdraw and about age
33
12 he fell into depression. (RR 24: 88, 91-92). Appellant began to experiment
with drugs in middle school to escape his depression. (RR 24: 95-96).
Appellant avoided social contact, and Dr. Carter described him as
humorless. (RR 24: 96). As a teenager, appellant felt lonely and isolated.17 (RR
24: 101). Dr. Carter thought appellant’s depression probably worsened into his
teenage years, and he felt helpless and suicidal and hated his life. (RR 24: 106).
Yet, appellant was not depressed to the point of psychosis. (RR 24: 118). A
common theme in appellant’s life was his overstatement of his importance by
bragging, pushing limits, or letting others know how smart he was. (RR 24: 102).
On cross-examination, Dr. Carter confirmed that the people he interviews
have a personal bias to present themselves in a manner in accord with their
perceived best interest. (RR 24: 154). Dr. Carter conceded that it was possible
appellant claimed he was depressed only after meeting with Dr. Carter and
deciding it was to his benefit to be depressed. (RR 24: 162). But, regardless of
one’s depression level, Dr. Carter confirmed that a person would know not to kill a
police officer. (RR 24: 167).
Appellant’s report to Dr. Carter of his lack of friends was disputed by his
disciplinary records from high school and college. (RR 24: 157-158). The
17
Cross-examination revealed that appellant had had friends with whom he played guitar and
rode motorcycles. (RR 24: 157). These friends were apparently so well known that appellant
told his mother in letters to use the names of these friends as clues she could insert into his codes.
(RR 24: 157).
34
disciplinary records indicated appellant acted in concert with others in sneaking
around the halls or out of classes, of using drugs behind Hobby Lobby with his
motorcycle-riding friends, and for showing affection on campus to a girl. (RR 24:
157-158). Appellant’s disciplinary records also reflected assaultive conduct by
him. (RR 24: 159). In one incident, appellant “sucker punched” another boy in the
locker room. (RR 24: 159). The person writing the report was concerned because
appellant showed no remorse for the assault. (RR 24: 159).
Dr. Carter admitted in cross-examination that appellant displayed
manipulative and controlling behaviors before and after this capital offense. (RR
24: 162-163). Appellant used Nikki Nance to get drugs, and he told Jenna Feland
to not talk to anyone about him, including his lawyers, mitigator, private eye, etc.
until he told her to. (RR 24: 162-164; SX93).
Appellant told Dr. Carter that he went to the Walmart to steal18 and he took
his gun with him “just in case.” (RR 24: 167). Appellant knew he shot a police
officer, and, by the extent of the injury, he knew the officer was dead. (RR 24:
169). Dr. Carter admitted that appellant lacked empathy. (RR 24: 164). The fact
that appellant planned to profit from this capital murder was disturbing to one of
his psychologists. (RR 25: 132).
18
Evidence showed appellant had recently received a promotion at work and earned
approximately $65,000 to $70,000 at his job. (RR 24: 180).
35
The defense also presented Dr. Walter Harrell, a psychologist specializing in
neuropsychology and rehabilitation psychology. (RR 24: 222). Based on
appellant’s self-reported frontal lobe injuries,19 Dr. Harrell thought appellant had
been struggling with depression and sadness his whole life. (RR 24: 249, 254).
Dr. Harrell opined that appellant’s multiple concussive events20 predisposed him to
have struggles with depression, suicidal idealization, and substance abuse. (RR
25:98). Dr. Harrell claimed appellant had a substance abuse disorder that had
been evident since third grade. (RR 24: 255). This testimony, however, was also
based on appellant’s self-report that he began drinking alcohol and smoking
marijuana in third grade; appellant also claimed he did cocaine with his father.
(RR 24: 256).
Even Dr. Harrell reported that appellant showed a complete lack of remorse
for killing Officer Padron.21 (RR 25: 131-132). Appellant told Dr. Harrell that he
went to Walmart to steal groceries, that he carried a gun, was pursued by an
19
One such injury resulted from a skateboarding accident when appellant was 14 years old, but
appellant’s brain scan following this accident was normal. (RR 25: 79).
20
On cross-examination, Dr. Harrell acknowledged that appellant was very intelligent, and he
had no difficutly communicating with him. (RR 25:82-83). He also had to acknowledge that his
assessment of appellant’s frontal lobe injuries was merely an inference based on unsubstantiated
reports of head injuries from appellant. (RR 25: 85-87). In one such report, appellant told Dr.
Harrell of a head injury he sustained when he was 18 months old. Dr. Harrell admitted that at
such a young age, appellant would not have an independent recollection of that event. (RR 25:
85-87).
21
Appellant’s aunt, who was the County Attorney for Pottawatomie County, Kansas, testified
that appellant had never expressed remorse for killing Officer Padron. (RR 25: 22, 60).
36
officer, and shot him. (RR 25: 102). Dr. Harrell testified that appellant struggled
with impulse control all of his life. (RR 25: 104). But, he thought appellant’s
killing of Officer Padron was a drug-related problem. (RR 25: 105). Appellant
could become dangerous and commit acts of violence in prison if he was under the
influence of alcohol or drugs. (RR 25: 111).
Dr. Harrell further confirmed on cross-examination that no mitigating
factors of sexual abuse, physical abuse, mental retardation, homelessness, or lack
of food were present in this case. (RR 25: 128-129). Even though appellant
committed various offenses as a juvenile, he never did time in the juvenile system.
(RR 25: 130). Appellant was highly intelligent, had excelled in school, and had
even graduated Colorado State University with honors in a highly technical field.
(RR 25: 129). At the time of this offense, appellant had a good job with a national
company and had no work-related issues. (RR 25: 129-130).
Psychiatrist Dr. Harold Scott diagnosed appellant with depressive and
addictive problems. (RR 25: 180). Dr. Scott testified appellant was highly
addictive, having used substances since age nine to “obliterate reality” and self-
medicate for his depression. (RR 25: 208-209). Appellant used alcohol, cough
syrup, marijuana, and computer duster (an inhalant) by age thirteen. (RR 25: 208-
209).
37
On August 26, 2012, corrections officer Stephen Crim found appellant on
top of his bunk with his hands in the air vent. (RR 24: 199-200). Crim searched
appellant’s cell and found torn bedsheets fastened into a noose and a three-foot
long rope. (RR 24: 201). The noose was in the air vent. (RR 24: 201). Just
expressing suicidal feelings would get an inmate transferred to the health services
building in jail. (RR 24: 40). On another occasion, an inmate reported to Crim
that he overheard appellant and another inmate discussing escape plans because
they were tired of being in jail and wanted out. (RR 24: 203). The fellow inmate
planned to overtake a guard, get his keys, and let appellant out of his cell. (RR 24:
203).
State’s
Rebuttal
Evidence
at
Punishment
In appellant’s phone calls, letters, and visitation, he showed a fascination
with major criminal events that had occurred since this capital murder. (RR 25:
248). He often spoke of the Aurora, Colorado, movie theater shooting, the Sandy
Hook Elementary School shooting, the Boston Marathon bombing, and the DC
capital police shooting. (RR 25: 248-249). Appellant was intrigued with the
number of casualties and the type of weapons used. (RR 25: 249). His mother
once commented that she felt sorry for the shooter in the movie theater massacre in
Colorado. (RR 25: 249).
38
Dr. Marisa Mauro, a licensed psychologist, interviewed appellant on
February 17, 2014, regarding his depression, family, substance abuse before,
during, and after this offense, prognosis for recovery from depression and
substance abuse, and his adjustment to incarceration. (RR 26: 13-15). Appellant
provided Dr. Mauro with little information and was very emotionless. (RR 26:
16). Dr. Mauro found no evidence of psychoses, and she disagreed with the
diagnosis of major depression, severe and recurrent. (RR 26: 17). Dr. Mauro
opined that appellant’s alleged suicide attempt (the taking of the pills while in jail)
was more of a gesture, and the circumstances of that event raised questions for her
regarding appellant’s intent of taking the pills. (RR 26: 20). After his break up
with Feland, appellant threatened to kill himself with his gun but that was only a
ruse to get her back. (RR 26: 24-25).
Dr. Mauro did not believe that depression impacted appellant before, during
or after this capital offense. (RR 26: 31). Records also indicated that appellant
said he made the nooses to “mess with” the jail psychiatrist and to get a cell change
to a cell with a window where he could get radio reception. (RR 26: 69).
Appellant displayed shockingly little difficulty adjusting to jail. (RR 26: 19). He
socialized with other inmates, engaged in daily activities with them, and even
called them “friends.” (RR 26: 25-26, 36).
39
Appellant told Dr. Mauro that he had a “pretty normal” childhood with
difficult issues being his parents’ divorce, few friends, and a sometimes
emotionally abusive mother. (RR 26:22-23). He reported to Dr. Mauro substantial
more drug use than documented in his records. (RR 26: 28). Appellant reported
abusing substances daily and using every classification of drug, from prescription
pills to opium, methadone, street drugs, Ecstasy, Xanax and alcohol. (RR 26: 28).
Despite appellant’s dependency on drugs and alcohol, he did not experience
withdrawal symptoms while in jail. (RR 26: 29). Dr. Mauro knew from her work
in prison systems that inmates had access to narcotics “pretty much all the time”
and alcohol. (RR 26: 70). Dr. Mauro testified that psychiatric medications were
valuable in prison and used for favors. (RR 26: 70).
Dr. Mauro used a psychopathy checklist to measure future dangerousness,
but she did not use that tool in this case. (RR 26: 37). The psychopathy checklist
defined asocial behaviors or not conforming to laws, violating the rights of others,
having restricted or shallow ranged of affect and a lack of empathy, and being
conning and manipulative. (RR 26: 37).
The
Verdict
at
the
Punishment
Phase
The jury found beyond a reasonable doubt that there was a probability that
appellant would commit criminal acts of violence and constitute a continuing threat
to society. (RR 26: 216). The jury also found that there were not sufficient
40
mitigating circumstances to warrant a sentence of life imprisonment rather than a
death sentence. (RR 26: 216). Appellant requested a jury poll, which revealed the
jury’s answers to the punishment verdict were unanimous. (RR 26: 217-218). In
accordance with the jury’s verdict, the trial judge sentenced appellant to death by
lethal injection. (RR 26: 221).
SUMMARY OF THE ARGUMENTS
State’s
Reply
to
Appellant’s
First
Point
of
Error: Any rational jury could
have found beyond a reasonable doubt that there was a probability that the
appellant would commit criminal acts of violence constituting a continuing threat
to society. The direct evidence of this capital murder and the circumstances
surrounding it were highly probative of appellant’s propensity for future
dangerousness. He entered the Walmart armed with a loaded firearm and
magazine, clearly intending violence. When appellant’s first shot at Officer
Padron did not injure him, appellant placed the muzzle of the gun against Officer
Padron’s neck, fired, and killed him. Appellant also fired at the heads of Walmart
employees who detained him.
Furthermore, appellant never showed remorse for committing this capital
murder. Instead, he was boastful and cavalier. Appellant gained self-worth from
committing this offense and other criminal acts. He showed a life-long disrespect
for law enforcement and others. He continually committed violations while in jail
41
and planned a violent escape. Appellant’s escalating drug use and abuse was
considered a factor in his commission of this capital murder, and appellant’s drug
use, which made him dangerous, continued while he was incarcerated.
The evidence in this case showed that prior to and after committing the
capital murder of Officer Padron appellant engaged in conduct that constituted a
threat to society. The evidence was therefore legally sufficient to sustain the jury’s
verdict at punishment.
State’s
Reply
to
Appellant’s
Second
Point
of
Error: Appellant’s second point
of error should be overruled because appellant did not suffer any harm from the
trial court’s denial of his challenge for cause to venireperson Reading. The record
reflects that appellant utilized only 14 peremptory challenges in selecting the 12
members of the jury. Appellant utilized his fifteenth peremptory challenge to
strike a venireperson in the pool of alternates. Appellant did not request an
additional peremptory strike because he did not need one. He also did not identify
an objectionable juror who sat on his jury. Under these circumstances, appellant
failed to show he suffered any harm.
Alternatively, the trial judge did not err in denying appellant’s challenge for
cause to venireperson Reading. The entirety of Reading’s voir dire revealed that
he could follow the law, hold the State to its burden of proof at both phases of trial,
and consider mitigating evidence. Although Reading viewed the death penalty as
42
an appropriate punishment for certain murders, his voir dire reflects that he would
not automatically assess it. The record is sufficient to sustain the trial judge’s
ruling on appellant’s challenge for cause to Reading. Appellant’s second point of
error should be overruled on the merits as well.
State’s
Reply
to
Appellant’s
Third
Point
of
Error: Appellant failed to
preserve any alleged error for review. Appellant requested a hearing on Dr.
Mauro’s qualifications, and the trial judge granted that request. Appellant
requested to explore the basis of Dr. Mauro’s findings, and the trial judge allowed
that inquiry. There being no adverse rulings, appellant failed to preserve any
alleged error for review. Moreover, appellant had no objection to Dr. Mauro’s
testimony at trial.
Additionally, the trial judge afforded appellant a proper hearing under Rule
705(b). By its express terms, Rule 705(b) does not authorize inquiry into the
expert’s specific findings. It allows inquiry into the underlying basis of the
expert’s opinion, which the trial judge allowed in this case. The record reflects
that the trial judge complied with the requisites of Rule 705(b), and appellant fails
to show any alleged error.
Appellant’s third point of error is wholly without merit and should be
overruled.
43
STATE’S REPLY TO APPELLANT’S FIRST POINT OF ERROR
The
evidence
was
legally
sufficient
to
establish
that
there
is
a
probability
that
appellant
would
commit
criminal
acts
of
violence
and
constitute
a
continuing
threat
to
society.
Standard and Scope of Review
When reviewing the future-dangerousness special issue, the appellate court
views the evidence in the light most favorable to the jury’s finding and determines
whether a rational jury could have found beyond a reasonable doubt that there is a
probability that the appellant would commit criminal acts of violence constituting a
continuing threat to society. Soliz v. State, 432 S.W.3d 895, 901 (Tex.Crim.App.
2014). In this context, “society” includes both the free world and prison society.
Id., citing Druery v. State, 225 S.W.3d 491, 507 (Tex.Crim.App. 2007). The
Court's review is a very limited one. Chambers v. State, 903 S.W.2d 21, 25
(Tex.Crim.App. 1995). The Court's task is to consider all of the record evidence
and reasonable inferences therefrom in the light most favorable to the jury's verdict
and to determine whether, based on that evidence and those inferences, a rational
jury could have found beyond a reasonable doubt the elements of the special issue.
Id.
The circumstances surrounding the offense, if severe enough, may alone be
sufficient to support an affirmative answer to the future dangerousness special
issue. Freeman v. State, 340 S.W.3d 717, 725 (Tex.Crim.App. 2011). Prior
44
unadjudicated acts of violence against people and property, prior adjudicated
criminal acts, and habitual drug abuse all constitute evidence of future
dangerousness. Soliz, 432 S.W.3d at 901, citing Wilkerson v. State, 881 S.W.2d
321, 326 (Tex.Crim.App.), cert.denied, 513 U.S. 1060 (1994). Some factors a jury
may consider when determining whether a defendant will pose a continuing threat
to society include the following:
1. the circumstances of the capital offense, including the defendant’s state of
mind and whether he was working alone or with other parties;
2. the calculated nature of the defendant’s acts;
3. the forethought and deliberateness exhibited by the crime’s execution;
4. the severity of the prior criminal acts committed by the defendant;
5. the defendant’s age and personal circumstances at the time of the
commission of the offense;
6. whether the defendant was acting under duress or the domination of another
at the time of the commission of the offense;
7. psychiatric evidence; and
8. character evidence.
Devoe v. State, 354 S.W.3d 457, 461-62 (Tex.Crim.App. 2011). This list is not
exclusive. Id. at 462. Further, the circumstances of the offense and the events
surrounding it can be among the most revealing evidence of future dangerousness.
Bell v. State, 938 S.W.2d 35, 41 (Tex.Crim.App. 1996), cert.denied, 522 U.S. 827
(1997).
Application of Law to Facts
The direct evidence of this capital offense and the circumstances
surrounding it were highly probative evidence of appellant’s future dangerousness.
45
Appellant’s actions exhibited foresight and planning. Appellant entered the
Walmart armed with a loaded weapon and with the intent to shoplift. He took the
loaded weapon “just in case,” clearly anticipating using violence against anyone
who interfered with his criminal endeavor. Appellant loaded the firearm with
hollow point bullets to cause maximum damage to his victim(s). Along with the
loaded firearm, appellant carried a magazine loaded with additional hollow point
bullets, indicating his willingness to shoot and possibly kill multiple victims.
Appellant, in fact, fired his weapon multiple times. His first shot hit Officer
Padron in his uniform pocket but did not injure Officer Padron because of his
protective vest. Appellant then knowingly placed the gun against Officer Padron’s
neck and fired again, killing him. As Walmart employees tried to subdue
appellant, he fired again, almost shooting both LeMere and Jordy in their heads.
Appellant killed Officer Padron and attempted to kill Walmart employees over a
mere $56.90 of shoplifted groceries. (SX78).
The jury could further infer appellant’s propensity for future dangerousness
from evidence showing a lack of remorse. Estrada v. State, 313 S.W.3d 274, 285
(Tex.Crim.App. 2010). Appellant never expressed or showed remorse for
committing this capital murder, and he had no sympathy for his victim. Rather, he
was repeatedly cavalier and boastful. Appellant laughed after killing Officer
Padron and smiled and winked at arresting officers. In jail, appellant enjoyed
46
sharing news stories about his capital murder with fellow inmates, took a bow in
response to their applause, and pumped his fist in response to a disparaging remark
regarding the police. Even appellant’s own witnesses22 testified he never
expressed remorse for this capital murder.
Appellant’s propensity for future dangerousness was supported by evidence
of his long-term disrespect for law enforcement. While in jail, appellant tracked
the activities and movements of corrections officers in preparation for a violent
escape from jail, which involved shooting law enforcement officers. He
committed repeated violations of jail regulations and created a code to bypass jail
security with his mail. Evidence established that inmates who communicated via
coded mail presented a security threat to corrections officers, other inmates, and
even the public. In just the four months preceding this capital murder, appellant
continually committed criminal offenses, including traffic violations, possession of
marijuana and other controlled substances, possession of drug paraphernalia, DWI,
and excessive drug usage. Barley v. State, 906 S.W.2d 27, 30-31 (Tex.Crim.App.
1995) (explaining that even a criminal history comprised offenses that are not
overtly violent can lead a reasonable juror to find a probability of future
dangerousness when the offenses show an escalating and ongoing pattern of
disrespect and continued violations of law).
22
His aunt and hired psychologist Dr. Harrell.
47
Some of the most disturbing evidence of appellant’s future dangerousness
was that he gained his self-worth from his criminal activity, in spite of being highly
intelligent and having had a well-paying job. Appellant told his mother that he was
at the top of the prison pecking order. The night of this capital murder, appellant
wanted to commit a robbery, telling his roommate that he had gotten away with
“worse shit.” Appellant saw this capital murder as an opportunity for financial
gain by selling his story, which even his defense expert found disturbing. He
asked his mother about murderabilia and to post him on meet-an-inmate.com,
describing him as “bad” as possible. Appellant thought he was “cool” for owning
a firearm, and he bragged about eluding police on his motorcycle. And, appellant
exhibited a character for violence. He was obsessed with mass murder and other
violent tragedies such as the movie theater massacre in Colorado, the Sandy Hook
Elementary murders, and the Boston Marathon bombing.
Appellant further displayed a lack of respect for others, even his friends. He
was manipulative, using Nikki Nance for drugs and money, despite his high-paying
job. Appellant threatened to commit suicide with his firearm as a ruse to get
Feland back as his girlfriend. He was polite with police officers and pleaded that
he wanted to be a “productive member of society” to get out of tickets or arrests.
He feigned suicide attempts while incarcerated to get better housing.
48
The substantial psychiatric evidence in this case supported the jury’s
determination that appellant constituted a continuing threat to society. Appellant
did not like to be controlled by others and lacked empathy. He had the capacity to
change, but chose not to. Appellant’s mental health experts diagnosed appellant
with major depression, but also considered his depression a factor in his
commission of crime. The jury could infer from the evidence regarding his
personality that his character traits were consistent with the factors on the
psychopathy checklist for future dangerousness.
The jury could reasonably believe that appellant’s drug use made him
dangerous. Williams v. State, 273 S.W.3d 200, 214 (Tex.Crim.App. 2008);
Wilkerson, 881 S.W.2d at 326, (habitual drug use constitutes evidence of future
dangerousness). Although intoxicated on Xanax the night he committed capital
murder, appellant planned his criminal activities at Walmart, went to the store
intending to steal from the pharmacy, armed himself with a loaded firearm and
magazine, and was fully aware that he had murdered a police officer. Defense
witness Dr. Harrell thought appellant’s killing of Officer Padron was a drug-related
problem, and he testified that appellant could become dangerous and commit acts
of violence in prison if he were under the influence of drugs or alcohol. The State
presented evidence that prison inmates had regular access to drugs and alcohol.
And, there was evidence that psychiatric medications were valuable in prison and
49
could be used for favors. Despite appellant’s escalating drug use prior to this
capital murder, he did not experience withdrawal symptoms in jail, suggesting he
continued to abuse substances. Indeed, appellant made “hooch” while incarcerated
and hoarded pills in his cell.
Appellant contends the evidence in this case is insufficient like the evidence
in Berry, Beltran, and Huffman.23 Appellant’s brief at p. 17. But, these cases are
easily distinguishable on their facts. In Berry, the evidence showed the defendant
was dangerous “only to those of her own children” and there was a very low
probability that she would have any more children if sentenced to life in prison.
233 S.W.3d at 864. Additionally, the State in that case invited the jury to utilize an
improper standard in its consideration of future dangerousness by asking the jury
to assume that the defendant would be living in the free world. Id. at 863.24 In
Beltran, the Court determined the facts of that robbery-murder alone were
insufficient to sustain the future dangerousness issue, and Beltran’s prior criminal
history reflected mostly alcohol-related offenses. 728 S.W.2d 389-90. Unlike
appellant’s case, no psychiatric evidence was introduced in Beltran. 728 S.W.2d at
390. In Huffman, there was no evidence that the defendant originally intended
23
Berry v. State, 233 S.W.3d 847 (Tex.Crim.App. 2007), Beltran v. State, 728 S.W.2d 382
(Tex.Crim.App. 1987), and Huffman v. State, 746 S.W.2d 212 (Tex.Crim.App. 1988).
24
Also, it is notable that Berry was a 5-4 decision with the dissent arguing that the majority
utilized an improper standard of review on the future dangerousness sufficiency question. 233
S.W.3d at 865.
50
murder or violence in committing the robbery-murder. 746 S.W.2d at 225.
Huffman committed the offense while highly intoxicated and had no memory of it.
He had only one disciplinary violation while incarcerated and that was shortly after
his arrest because he did not know where he was or why he was there. Id. at 224.
And, the State presented no psychiatric evidence at punishment. Id. at 225.
The evidence in this case showed that prior to committing this capital
murder appellant continually engaged in conduct that constituted a threat to
society. The killing of Officer Padron was the culmination of a life-long escalating
pattern of violations of the law, disrespect for law enforcement officers and other
citizens, including friends, escalating drug use and abuse, threatened violence, and
depression. The evidence at trial showed appellant continued to engage in such
behaviors even after being incarcerated for this capital murder. Based on all the
evidence, the jury’s finding that there was a probability that appellant would
commit criminal acts of violence and constitute a continuing threat to society was
rational. The evidence was therefore legally sufficient to sustain the jury’s answer
on the punishment issue. Appellant’s first point of error should be overruled.
51
STATE’S REPLY TO APPELLANT’S SECOND POINT OF ERROR
Appellant
did
not
suffer
harm
as
a
result
of
the
trial
court’s
denial
of
his
challenge
for
cause
to
venireperson
Reading.
Alternatively,
the
trial
judge
did
not
err
in
denying
appellant’s
challenge
for
cause
to
venireperson
Reading.
The issue is whether the trial court’s ruling on appellant’s challenge for
cause to Reading effectively deprived appellant of one of his statutorily-given
peremptory challenges. Gonzales v. State, 353 S.W.3d 826, 831 (Tex.Crim.App.
2011). Before harm can be shown on the record with respect to a trial court’s
denial of a defense challenge for cause, a defendant must (1) use a peremptory
strike on the challenged prospective juror; (2) exhaust his peremptory challenges;
and (3) request an additional peremptory strike to use upon a specifically identified
objectionable venire member who, because the extra strike was denied, actually sat
on the jury. Davis v. State, 313 S.W.3d 317, 343 (Tex.Crim.App. 2010). In a
death penalty case with only one defendant, that defendant is entitled to fifteen
peremptory challenges. Art. 35.15(a), V.A.C.C.P.
Appellant Cannot Show Harm
The State had no objections to Reading as a juror. (RR 11: 205). Appellant
objected to Reading on the basis that he had a bias toward the death penalty and
that he would require the defense to present mitigating evidence. (RR 11: 205).
The trial judge denied appellant’s challenge to Reading, and appellant exercised a
peremptory challenge against Reading. (RR 11: 205; RR 16: 123-124). The
52
defense utilized only 14 peremptory challenges in selecting the 12 members of the
jury. (RR 16: 132). The defense used its fifteenth peremptory challenge to strike a
venireperson from the pool of alternate jurors. (RR 11: 134). Cf. Comeaux v.
State, 445 S.W.3d 745, 751 (Tex.Crim.App. 2014) (defendant who chooses to use
peremptory strike outside strike zone may not complain about harm concerning
juror within strike zone who could have been removed instead).
Appellant did not request an additional peremptory strike because it was not
needed. (RR 11: 133-134). Consequently, appellant did not identify an
objectionable juror on his jury because none sat on his jury. And, appellant did not
claim that he would have struck an alleged objectionable juror if he had had an
additional peremptory strike to use. Under these circumstances, appellant fails to
show he suffered any harm from the trial court’s denial of his challenge for cause.
Comeaux, 445 S.W.3d at 750. Appellant’s second point of error should be
overruled on this basis.
Alternatively, the Trial Judge Did Not Err in Denying the Challenge for
Cause
Although recognizing that he cannot show harm because he did not use all of
his peremptory challenges, appellant’s brief at pp. 18-19, appellant nevertheless
contends that the trial judge erred in denying his challenge for cause to
venireperson Reading. Appellant contends Reading was challengeable for cause
53
for his bias in favor of the death penalty and for his need for the defense to present
mitigating evidence.
Facts Relevant to the Challenge for Cause
During the State’s voir dire examination, Reading indicated that his views
regarding the death penalty would not affect his ability to listen to the evidence and
the law in this case as given by the trial judge and to decide the punishment issues.
(RR 11: 166). As for murder, Reading affirmatively noted that he could consider
the entire range of punishment, and he, in fact, could envision situations where the
minimum and maximum punishments would be appropriate. (RR 11: 168).
Reading agreed with the prosecution that murder by itself was never sufficient for
the death penalty. (RR 11: 170). Reading believed capital punishment was
appropriate for the capital murder of a police officer. (RR 11: 171).
Reading further understood that there were only two punishment options in a
capital murder case, and he was okay with that. (RR 11: 171-172). Reading could
“absolutely” hold the State to its burden of proof of beyond a reasonable doubt and
not put any burden on the defense. (RR 11: 172). Reading understood, and
agreed, that he should find the defendant “not guilty” if the State failed in its
burden of proof and even if the defendant presented no evidence. (RR 11: 173).
Reading had a basic understanding of the punishment phase process in a
capital murder case regarding the special issues. (RR 11: 173-174). The
54
prosecutor discussed the factors in the first punishment issue, viz: probability,
criminal acts of violence, and society. (RR 11: 175-179). The record reflects
Reading understood the issues related to those factors, the State’s continued burden
of proof on those issues, and that the defendant did not have to do anything. (RR
11: 175-176).
As for the mitigation issue, Reading indicated he was open to considering
that there could be mitigating evidence sufficient to choose life without parole as
an appropriate punishment. (RR 11: 181). On the second punishment issue,
Reading could consider any mitigating evidence presented, the circumstances of
the offense, the defendant’s character and background, and the defendant’s moral
culpability. (RR 11: 183-186). The prosecutor also discussed other potential
mitigating factors with Reading. (RR 11: 186-188). Reading was willing to wait
and hear all the evidence before making any decision about the punishment issues.
(RR 11: 188).
The defense then questioned Reading. In response to a hypothetical
regarding a capital murder of a police officer, Reading stated he would lean toward
the death penalty as an appropriate punishment where there were no defensive
issues at guilt/innocence and where the jury has already determined the future
dangerousness issue against the defendant. (RR 11: 190). Yet, Reading confirmed
that he could consider mitigating evidence. (RR 11: 191). When asked by defense
55
counsel if he would want the defense to bring evidence to convince him that death
was not the appropriate punishment, Reading answered affirmatively. (RR 11:
191).
Further, regarding mental illness as mitigating evidence, Reading indicated
that killing a police officer was a serious offense and that it would be difficult to
not vote for the death penalty where such a murder was knowingly committed.
(RR 11: 193). When asked by defense counsel to place himself on a spectrum of
the death penalty being reserved for the “worst of the worst” to being appropriate
for any murder, Reading tended to fall more toward believing the death penalty
was appropriate for any knowing and intentional murder. (RR 11: 196-197).
Reading confirmed that he could “absolutely” fairly and impartially consider
all the evidence in this case, even in the punishment phase. (RR 11: 197). Reading
clarified that he would not automatically lean toward the death penalty after
finding a person guilty of the capital murder of a police officer, as suggested by
defense counsel’s hypothetical, which had confused Reading. (RR 11: 197-198).
After again discussing the defense hypothetical, Reading confirmed that he would
lean toward the death penalty as the appropriate punishment where several factors
were present, to-wit: the defendant intentionally killed a police officer in the line
of duty, there were no defensive issues and no mental illness issues, and the jury
56
had already found that the defendant would constitute a continuing threat to
society. (RR 11: 199).
Finally, as to the Fifth Amendment right not to testify, Reading indicated
that he would not hold it against the defendant if he did not testify, but it would be
a question in his mind; i.e., why not testify and defend yourself if you are
innocent.25 (RR 11: 200). But, Reading indicated that he would do his best to put
that out of his mind if instructed by the trial judge to not consider it during
deliberations. (RR 11: 200-201). Reading confirmed for the trial judge, after
having the instruction read to him, that he could follow the court’s instruction.
(RR 11: 201-202).
The trial judge then questioned Reading. The judge determined that
Reading could “absolutely” consider the mitigation issue after finding that the
defendant would be a continuing threat to society. (RR 11: 202-203). The judge in
fact noted that the jury only considered the second punishment issue if it had found
the first punishment in the affirmative, i.e. that the defendant would be a
continuing threat to society. (RR 11: 202). Reading confirmed that he could
consider mitigating evidence and vote for a sentence less than death if warranted
by the mitigating circumstances. (RR 11: 203).
25
Appellant does not contend on appeal that Reading was challengeable for cause on this basis.
And, indeed he was not, given that he confirmed he could follow the law. (RR 11: 201-202).
57
The State had no objections to Reading as a juror. (RR 11: 205). Appellant
objected to Reading on the basis that he had a bias toward the death penalty and
that he would require the defense to present mitigating evidence. (RR 11: 205).
The trial judge denied appellant’s challenge to Reading, and appellant exercised a
peremptory challenge against Reading. (RR 11: 205; RR 16: 123-124).
Standard of Review and Applicable Law
The appellate court looks at the entire record of voir dire to determine if the
evidence is sufficient to support the court’s ruling on a challenge for cause.
Gonzales, 353 S.W.3d at 831. The appellate court affords great deference to the
trial court’s ruling because the trial judge is present to observe the demeanor of the
venireperson and to listen to his tone of voice. Id., citing Feldman v. State, 71
S.W.3d 738, 744 (Tex.Crim.App. 2002). Particular deference is afforded when the
venireperson’s answers are vacillating, unclear, or contradictory. Davis, 313
S.W.3d at 344. The appellate court will reverse a trial court’s ruling on a challenge
for cause only if a clear abuse of discretion is evident. Gonzales, 353 S.W.3d at
831, citing Davis, 313 S.W.3d at 344.
A venireperson is subject to a challenge 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. Art. 35.16(b)(3), (c)(2), V.A.C.C.P.; Gardner v.
State, 306 S.W.3d 274, 295 (Tex.Crim.App. 2009). The test is whether a
58
venireperson’s bias or prejudice would substantially impair his “ability to carry out
his oath and instructions in accordance with the law.” Gonzales, 353 S.W.3d at
831-32, quoting Feldman, 71 S.W.3d at 744. The proponent of the challenge for
cause must establish that the challenge was proper by showing that the
venireperson understood the requirements of the law and could not sufficiently
overcome his prejudice to follow the law. Gonzales, 353 S.W.3d at 832. Before a
venireperson may be excused for cause on that basis, the law must be explained to
him, and he must be asked whether he can follow that law, regardless of his
personal views. Feldman, 71 S.W.3d at 744.
Application of Law to Facts
Viewing the entirety of Reading’s voir dire examination, it is clear that the
trial court did not abuse its discretion in denying appellant’s challenge for cause to
Reading. Reading did not display a determination to automatically vote for the
death penalty, as appellant contends.26 Appellant errs in relying on only a portion
of Reading’s voir dire to support his argument.
Reading agreed that capital punishment was an appropriate punishment for
the intentional murder of a police officer, but he repeatedly confirmed that he
26
Appellant also argues in his brief that because Reading had a bias toward the death penalty, he
lowered the State’s burden of proof. Appellant’s brief at p. 21. Appellant did not make this
argument regarding the burden of proof in the trial court, so that argument is not preserved for
appellate review. Tex.R.App.Proc. 33.1. Moreover, Reading steadfastly maintained that he
would hold the State to its burden of proof. See (RR 11: 172-173, 175-176).
59
could hold the State to its burden of proof on the punishment issues, consider any
mitigating evidence, and follow the court’s instructions. While, in one point of his
voir dire, Reading stated that he would vote for the death penalty for the knowing
murder of a police officer, that answer was in response to a hypothetical that
confused Reading. See (RR 11: 197-198). After again discussing the defense
hypothetical, Reading confirmed that he would lean toward the death penalty as the
appropriate punishment where several factors were present, viz: the defendant
intentionally killed a police officer in the line of duty, there were no defensive
issues and no mental illness issues, and the jury had already found that the
defendant would constitute a continuing threat to society. (RR 11: 199). But, as
his voir dire indicates, he would only “lean” toward the death penalty; it was not an
“automatic” assessment of death. Reading’s voir dire reflected that he deemed
capital murder an “appropriate” punishment, not an “automatic” punishment.
Furthermore, Reading’s voir dire reflects that he understood and fully
accepted the State’s burden of proof at guilt/innocence and on the punishment
issues. Reading confirmed he could “absolutely” hold the State to its burden of
proof of beyond a reasonable doubt and not put any burden on the defense. (RR
11: 172). Reading understood, and agreed, that he should find the defendant “not
guilty” if the State failed in its burden of proof, even if the defendant presented no
evidence. (RR 11: 172-173). As for the factors relevant to the first punishment
60
issue, Reading understood the State’s continued burden of proof on those issues
and that the defendant had no burden with regard to that issue. (RR 11: 175-176).
The State acknowledges that Reading answered affirmatively in response to
defense counsel’s question “you would want the Defense to bring you -- bring you
some evidence to convince you that death is not the appropriate sentence, correct?”
(RR 11: 191). Yet, this was an isolated portion of Reading’s voir dire, and defense
counsel had not explained the burden of proof to Reading prior to this question;
nor had the defense asked Reading whether he could follow the law once properly
explained to him. Gonzales, 353 S.W.3d at 832; Feldman, 71 S.W.3d at 744.
Thus, Reading was not challengeable for cause based on that single response.
Appellant’s second point of error is without merit and should be overruled.
STATE’S REPLY TO APPELLANT’S THIRD POINT OF ERROR
Appellant
failed
to
preserve
any
alleged
error
for
review
because
there
was
no
adverse
ruling.
Alternatively,
the
trial
court
did
not
abuse
its
discretion
in
limiting
the
voir
dire
hearing
to
the
expert’s
qualifications
and
the
basis
of
her
findings.
Relevant Facts
Prior to Dr. Mauro testifying for the State in rebuttal at the punishment
phase, appellant requested and was granted a hearing on her qualifications. (RR
26: 6). The State questioned Dr. Mauro about her educational and professional
background. (RR 26: 6-8). Then, on his voir dire examination, appellant asked Dr.
61
Mauro to summarize her findings regarding him. (RR 26: 8). The trial judge
interjected that the voir dire was to be on Dr. Mauro’s qualifications, and appellant
agreed. (RR 26: 8-9). Appellant stated that he might want to suppress some of Dr.
Mauro’s findings, and he contended he had a right to question the scientific basis
for her findings. (RR 26: 9). The trial judge confirmed that appellant had the right
to question Dr. Mauro about the basis of her findings and her expertise, but he did
not have the right to a hearing as to her specific findings. (RR 26: 9). Appellant
requested the opportunity to check the rule regarding his right, which the trial
judge allowed. (RR 26: 9). The record reflects defense counsel conferred,
proffered no further argument or objection, and then proceeded to question Dr.
Mauro about the basis for her findings. (RR 26: 10). After briefly questioning Dr.
Mauro, appellant stated he had no objection to her testimony. (RR 26: 11).
Appellant Failed to Preserve Any Alleged Error for Review
Appellant initially requested a hearing outside the jury’s presence on Dr.
Mauro’s qualifications, and the trial judge granted him that hearing. (RR 26: 6).
When appellant asked Dr. Mauro about her specific findings, the trial judge
interjected that the purpose of the hearing was to examine Dr. Mauro’s
qualifications. (RR 26: 8). Appellant agreed. (RR 26: 9). But, appellant
contended he had “the right to question whether there is a scientific basis to her
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findings prior to her testifying about those findings.” 27 (RR 26: 9). The trial judge
agreed that appellant could ask Dr. Mauro about the basis of her findings but
without going into her specific findings. (RR 26: 9). Appellant requested to check
the rule, which the trial judge allowed. (RR 26: 9). Appellant proceeded with the
hearing without any further objection or request to query Dr. Mauro on her specific
findings. There being no adverse rulings, appellant failed to present any alleged
error for review. Tex.R.App.Proc. 33.1(a); Fuller v. State, 253 S.W.3d 220, 232
(Tex.Crim.App. 2008), cert.denied, 555 U.S. 1105 (2009). Moreover, appellant
had no objection to Dr. Mauro’s testimony at trial. Therefore, no alleged error is
preserved for review. Tex.R.App.Proc. 33.1. Appellant’s third point of error
should be overruled on procedural default grounds.
The Trial Judge Afforded Appellant a Proper Rule 705(b) Hearing
Texas Rule of Evidence 705(b) provides:
Voir Dire. Prior to the expert giving the expert’s opinion or disclosing the
underlying facts or data, a party against whom the opinion is offered upon
request in a criminal case shall, or in a civil case may, be permitted to
conduct a voir dire examination directed to the underlying facts or data upon
which the opinion is based. This examination shall be conducted out of the
hearing of the jury.
Under this rule, a defendant is entitled upon a timely request to conduct a voir dire
examination directed to the underlying facts or data upon which the opinion of an
27
A request to take a witness on voir dire to prove up her expert qualifications does not
constitute a request for a Rule 705(b) hearing to inquire into the “underlying facts or data” of the
expert’s opinion. Jenkins v. State, 912 S.W.2d 793, 814 (Tex.Crim.App. 1995) (op. on reh’g.).
63
expert witness is based. Alba v. State, 905 S.W.2d 581, 587 (Tex.Crim.App.
1995), cert.denied, 516 U.S. 1077 (1996). The trial court must allow this
examination to be conducted outside the hearing of the jury and prior to the expert
testifying to her opinion before the jury. Id. at 587-88. The purpose of Rule
705(b) is to give defense counsel the “opportunity to determine the foundation of
the expert’s opinion without fear of eliciting damaging hearsay or other
inadmissible evidence in the jury’s presence.” Id. at 588, citing Goss v. State, 826
S.W.2d 162, 168 (Tex.Crim.App. 1992), cert.denied, 113 S.Ct. 3035 (1993).
Appellant contends the trial court erred in not allowing him to question Dr.
Mauro about her specific findings in the voir dire hearing on her qualifications. By
its express terms, Rule 705(b) does not authorize inquiry into the expert’s specific
findings. It allows inquiry into the underlying basis of the expert’s opinion, which
the trial judge allowed in this case. The record reflects that the trial judge
complied with the requisites of Rule 705(b), and appellant fails to show any
alleged error.
Appellant’s third point of error is wholly without merit and should be
overruled.
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PRAYER
WHEREFORE, PREMISES CONSIDERED, the State prays this Court to
overrule the appellant’s points of error and to affirm the trial court’s judgment.
Respectfully submitted,
ROSEMARY LEHMBERG
District Attorney
Travis County, Texas
/s/ Lisa Stewart
Lisa Stewart
Assistant District Attorney
State Bar No. 06022700
P.O. Box 1748
Austin, Texas 78767
Lisa.Stewart@traviscountytx.gov
AppellateTCDA@traviscountytx.gov
(512) 854-9400
Fax No. 854-4810
CERTIFICATE OF COMPLIANCE
Pursuant to Texas Rule of Appellate Procedure 9.4(i)(2)(A), the State
certifies that the length of this brief is 14,078 words. The State also certifies,
pursuant to Texas Rule of Appellate Procedure 9.4(e), a conventional typeface 14-
point was used to generate this brief.
/s/ Lisa Stewart
Lisa Stewart
Assistant District Attorney
65
CERTIFICATE OF SERVICE
This is to certify that the above State's brief was sent, via U.S. mail, email,
facsimile, or electronically through the electronic filing manager, to the appellant’s
attorney on appeal, Ariel Payan, Attorney at Law, 1012 Rio Grande, Austin, Texas
78701; Honorable Lisa C. McMinn, State Prosecuting Attorney, P.O. Box 13046,
Austin, Texas 78711; and appellant’s writ of habeas corpus attorney, Brad
Levenson, Office of Capital Writs, 1033 La Posada Drive, Suite 374, Austin, Texas
78752-3824, on this 20th day of July, 2015.
/s/ Lisa Stewart
Lisa Stewart
Assistant District Attorney
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Daniel, Brandon
Combined Opinion