Freeney, Ray McArthur

• Court: Court of Criminal Appeals of Texas
• Decided: April 27, 2005
• Docket: AP-74,776
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. AP-74,776 RAY MCARTHUR FREENEY, Appellant

v.

THE STATE OF TEXAS

ON DIRECT APPEAL

FROM CAUSE NO. 909843 IN THE 337^TH DISTRICT COURT

HARRIS COUNTY

Keasler, J., delivered the opinion of the Court in which Keller, P.J., and Meyers, Price, Womack, Johnson, Hervey, and Holcomb, JJ., joined. Cochran, J., concurred in point of error three and otherwise joined the opinion.

O P I N I O N

Ray McArthur Freeney was convicted in August 2003 of capital murder. ⁽¹⁾ Pursuant to the jury's answers to the special issues set forth in Texas Code of Criminal Procedure Article 37.071, Sections 2(b) and 2(e), ⁽²⁾ the trial court sentenced Freeney to death. ⁽³⁾ Direct appeal to this Court is automatic. ⁽⁴⁾ Freeney raises sixteen points of error challenging his conviction and sentence. We reject his contentions and affirm the conviction and sentence.

STATEMENT OF FACTS

Freeney was indicted for the murders of Kirshalynne Jones and Vicky Dean during different criminal transactions but pursuant to the same scheme or course of conduct. Prior to her murder, fifteen-year-old Jones had been staying with some relatives in the Travel Lodge Motel located at the intersection of Beltway 8 and Highway 59 in Houston. Jones became friends with fellow motel guest Margaret Sims, and soon moved into the motel room that Sims shared with her boyfriend, Jason Shiner. Sims and Jones worked as prostitutes. They generally solicited customers on Bissonnet Road and brought them back to their room at the Travel Lodge.

Shiner testified that he drove Jones and Sims to Bissonnet Road at around midnight on April 18, 2002. Jones met her first customer, or "date," that evening, and brought him back to the motel room. When they were finished, Sims arrived with her "date," and Shiner drove Jones back to Bissonnet Road. Jones had already returned to the motel with another customer when Shiner came back to pick up Sims. Sims testified that she saw the man with Jones and that he was about 5'9", had dark skin, and was either bald or had very short hair. Shiner later noticed that Jones had been in the motel room an unusually long time, so he began calling the room on his cell phone. He tried to call several times, but the line was busy. He then knocked on the door of the motel room, but no one answered it. He called the motel office at about 1:30 a.m. and asked for a security guard to assist him. The security guard attempted to open the door, but it was locked from the inside with a deadbolt. The security guard went back to the office to retrieve a key. While Shiner waited for him to return, a bald man with a dark complexion came out of the room. Shiner reached for the door, but the man pulled it shut. Shiner asked, "Where's the girl?" and the man responded, "She's in the bathroom. She's okay." Shiner followed the man downstairs and wrote down his license plate number as he drove away.

Shiner and the security guard returned to the motel room. Shiner went inside and called for Jones but did not get a response. He went into the bathroom, pulled back the shower curtain, and found Jones's body in the bathtub. He dialed 911 at about 1:45 a.m.

When Officer Todd Miller arrived at the scene, he saw a blood stain and a fecal matter stain on the floor at the foot of the bed, and he discovered another large blood stain after he pulled back the bedspread. There was an empty bottle of Chloraseptic spray on the vanity near the sink. Jones's body was immersed in water in the bathtub, and there was an empty bottle of Dial body wash and a pair of underwear floating in the water as well. Joseph Burrell, the crime scene investigator, testified that he was unable to locate any usable fingerprints, and that the table in the motel room "had obviously been wiped down."

The medical examiner testified that Jones died from multiple stab wounds. She suffered three stab wounds to her chest and two stab wounds to the left side of her neck. She had a blunt trauma injury to the top of her head and a bruise behind her right ear that was consistent with a blow to the back of her head. She had abrasions on her torso, face, and neck that were consistent with a violent struggle. The petechiae present in her eyes was indicative of strangulation. She also had vaginal redness that was consistent with some sort of penetration.

Miller checked the license plate number obtained by Shiner and found that it matched a green Pontiac Sunfire that was registered to Freeney. Miller also ascertained that Freeney lived at the Ravencrest apartment complex at 10003 Forum West, which was located almost directly behind the Travel Lodge Motel. Miller put together a photo spread containing Freeney's picture. Shiner and Sims identified Freeney in the photo spread. Shiner identified Freeney at trial, but Sims was unable to do so.

A Harris County deputy constable discovered Freeney's abandoned car in the parking lot of the Tinseltown Movie Theatre on Beltway 8 on April 19. Miller testified that he observed a stain around the gear shift lever that looked like blood. DNA was extracted from a swabbing of the gear shift. Forensic DNA analyst Jennifer McCue testified that the sample contained a mixture of DNA from more than two individuals, and Freeney and Jones could not be excluded from the mixture.

On April 22, Officer Guy Majors was dispatched to the Ravencrest apartment complex at about 1:30 a.m. When he arrived, he saw a naked woman covered in blood lying in the grass next to the building. The woman told Majors that her name was Vicky Dean. She said she had been attacked, but was unable to give Majors any information about her attacker. Majors observed that the window of a nearby apartment was open about five inches, and that there was blood on the window and windowsill. When Majors pulled back the curtain and looked inside, he saw blood all over the room.

Majors and some other officers knocked on the door to the apartment. Lou Jackson, Freeney's elderly aunt with whom he shared the apartment, answered the door. She gave the officers permission to come inside and look through the apartment. She appeared very frail and said that she had been undergoing treatment for cancer. She also gave Majors the phone number of Freeney's girlfriend.

Officer Glen Riddle testified that there was blood in the entryway and living room. A knife blade on the living room floor had bloodstains and two small strands of hair on it. There was a trail of blood leading to the bedroom and blood on the outside of the bedroom door. Inside the bedroom, there was blood on the bed, walls, ceiling, and floor. The bedroom was in disarray and the sheets and mattress cover had been pulled off the bed. A black purse containing Dean's driver's license was lying on the bed. There were various items scattered on the floor at the foot of the bed, including two women's sandals, a black bra, a black dress, a box of condoms, a set of keys, and a small cosmetic bag. A black knife handle without a blade was also lying on the floor near the bed.

Carol Dempsey, Dean's sister, testified at trial that Dean had been living with her in her condominium, which was located next door to the Ravencrest apartment complex. On the evening of April 21, Dean was getting ready to go out for the evening and told Dempsey that she had a date. Dempsey testified that Dean left at 10:05 p.m. and was wearing a dress and sandals.

Dean was transported to the hospital and died several days later. The medical examiner testified that Dean had twenty "sharp force injuries" to her arms, hands, torso, neck, and face. The fatal wound was the stab wound to her left eyebrow which entered her eye socket, perforated the roof of her skull, and entered the left side of her brain. As a result, a blood clot formed in her left internal carotid artery.

Miller met with Freeney's girlfriend, Quentessa Synegal, who gave him information as to the possible whereabouts of Freeney. Shortly before midnight on April 25, Miller and Synegal drove to Bissonnet, where she identified Freeney sitting with a woman on a bus stop bench in front of a Burger King. A team of police officers then arrested Freeney. The woman he was sitting with identified herself as Shaekia Calhoun. Calhoun told Detective John Swaim that she was a prostitute and that she and Freeney were discussing a price to go to a nearby hotel room.

Miller observed cuts and scratches on Freeney's hands and forearms when he interviewed him at the police station. Freeney gave three audiotaped statements in which he confessed to the murders of Jones and Dean. With regard to the Jones murder, Freeney said that he picked up Jones on Bissonnet and they went to her room on the third floor at the Travel Lodge. Freeney did not have any money and never intended to pay Jones for sex. Jones asked him for the money upfront when they went inside the motel room, and Freeney "jumped on her." During the struggle, Jones reached for the phone and knocked it off the hook. Freeney placed her in a "choke hold," and she passed out for about fifteen minutes, during which time he attempted to have vaginal intercourse with her but could not ejaculate. When she "came to," he stabbed her in the side, chest, and neck with his pocketknife. Jones then began performing oral sex on him, but again he did not ejaculate. As she was performing oral sex on him, she had a "bleak look in her eyes," and slowly passed out and died at the foot of the bed closest to the door. Afterwards, he used water to clean up the areas that he touched. He picked up Jones's body and placed it in the bathtub; then he ran some water in the tub and shut the shower curtain and the bathroom door. A man had been knocking on the door for five to ten minutes while Freeney was cleaning up the room. When Freeney opened the door and exited the room, the man asked if the girl was okay, and Freeney said yes, and that she was in the bathroom. The man followed Freeney downstairs, and Freeney got into his car and left. Freeney drove home, took a shower, and went to bed. The next day he left his car in the Tinseltown parking lot after he hit a median while driving on Beltway 8.

With regard to the Dean murder, Freeney stated that he met Dean on Forum West street and that she willingly walked with him to his apartment. They entered the apartment through his bedroom window. She told him she wanted the money right away, but Freeney knew that he did not have any money. She asked him for something to drink, so he gave her juice with a "sleeping aid" in it. Freeney also got a sharp knife with a black handle and a "flimsy blade" from the kitchen and returned to the bedroom. Dean drank the juice, smoked cigarettes, and talked to Freeney. He then told her to lie on the bed so he could give her a massage. When she did so, he stabbed her in the neck. They wrestled, and he continued to stab her and told her "she was stupid for being a prostitute." ⁽⁵⁾ After "the first few stabs," she took her clothes off, and they attempted to have vaginal intercourse. She then performed oral sex on Freeney, and he ejaculated. They fought again, and the knife broke at some point. Freeney swung the knife one last time and stabbed her in the left eye, and she told him, "Pull this knife out of me so I can die." He threw the bedcovers over her and exited through the window.

DNA evidence also linked Freeney to the murders of Jones and Dean. Officer Riddle testified that he recovered a pocketknife from "another location in Southwest Houston." ⁽⁶⁾ Riddle obtained swabs from the knife, which appeared to have bloodstains on it. McCue testified that Jones's DNA profile matched the profile on the swabs. McCue also performed DNA analysis on the two hairs found on the knife that was recovered from Freeney's apartment. The DNA profile of the hair root matched Dean's DNA profile. In addition, McCue detected Dean's DNA on some of Freeney's clothing.

SUFFICIENCY OF THE EVIDENCE

In his first point of error, Freeney argues that the evidence is legally insufficient to support his conviction for capital murder. In evaluating the legal sufficiency of the evidence, we must view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. ⁽⁷⁾ Those who commit murders pursuant to the same scheme or course of conduct have an "over-arching objective or motive" or engage in "a regular mode or pattern of . . . behavior." ⁽⁸⁾

Freeney contends that the evidence is insufficient to show that the murders occurred during the same scheme or course of conduct. Freeney supports this argument by highlighting some differences in the circumstances surrounding each murder. He asserts that "[t]he State committed itself to a theory that the 'common scheme or course of conduct' was the systematic murder of prostitutes . . . [y]et, the evidence failed to prove that Vicki Dean was a prostitute." He points out that he attempted to conceal his identity after he murdered Jones, but he did not do so with regard to Dean. Finally, he alleges that he used drugs to sedate Dean but not Jones.

Despite Freeney's argument, there were enough similarities in Freeney's motive or pattern of behavior that a rational juror could have found that the murders occurred during the same scheme or course of conduct. Freeney picked up Jones, who was working as a prostitute on Bissonnet, and went to her motel room intending to have sex with her without paying her any money. He subdued her and caused her to lose consciousness by placing her in a "choke hold," attempted to have vaginal intercourse with her, stabbed her in the chest and neck when she regained consciousness, and then forced her to perform oral sex on him. Four days later, he picked up Dean on Forum West, which was located almost directly behind the motel where he killed Jones. He brought Dean back to his apartment, believing that she was a prostitute and intending to have sex with her without paying her any money. He attempted to subdue Dean by giving her a "sleeping aid," stabbed her in the neck, torso, face, and upper extremities, attempted to have vaginal intercourse with her, and had her perform oral sex on him. Freeney was arrested three days later on Bissonnet, the same street where he had picked up Jones. At the time of his arrest, he was sitting on a bench with a woman who said she was a prostitute and they were discussing a price to go to a nearby motel room.

Based on the evidence at trial, a rational jury could have concluded beyond a reasonable doubt that Freeney committed the murders of Jones and Dean during different criminal transactions but pursuant to the same scheme or course of conduct. ⁽⁹⁾ Point of error one is overruled.

In his second point of error, Freeney contends that the evidence is factually insufficient for the same reasons expressed in his first point of error. In a factual sufficiency review, we view all of the evidence in a neutral light, and we will set the verdict aside only if the evidence is so weak that the verdict is clearly wrong and manifestly unjust, or the contrary evidence is so strong that the standard of proof beyond a reasonable doubt could not have been met. ⁽¹⁰⁾ A clearly wrong and unjust verdict occurs where the jury's finding is "manifestly unjust," "shocks the conscience," or "clearly demonstrates bias." ⁽¹¹⁾

In the instant case, the same facts that make the evidence legally sufficient also make it factually sufficient. The evidence supporting the verdict was not so weak as to be clearly wrong and manifestly unjust, nor was the contrary evidence so strong that the standard of proof beyond a reasonable doubt could not have been met. ⁽¹²⁾ Point of error two is overruled.

BATSON ERROR

In points of error five, six, and seven, Freeney contends that the trial court erred in overruling his Batson ⁽¹³⁾ objections to the State's peremptory challenges of prospective jurors Doris Anderson, Borita Williams, and Annita Waller. A defendant objecting under Batson must make a prima facie showing of racial discrimination in the State's exercise of its strikes. ⁽¹⁴⁾ The burden then shifts to the State to articulate race-neutral explanations for its strikes. ⁽¹⁵⁾ Once the prosecutor has articulated race-neutral explanations, the burden shifts back to the defendant to show that the explanations are really a pretext for discrimination. ⁽¹⁶⁾ The trial court must then determine whether the defendant has carried his burden of proving discrimination. ⁽¹⁷⁾ The trial court's determination is accorded great deference and will not be overturned on appeal unless it is clearly erroneous. ⁽¹⁸⁾

Freeney objected to the State's peremptory challenge against Anderson as follows:

[DEFENSE COUNSEL]: The discussion we just finished with Juror 61, Doris Anderson, we would like to make an objection under Batson, Article 35.261 of the Texas Code of Criminal Procedure, in that we will again state for the record that our client is a member of the minority race, African-American, and Ms. Anderson was as well.

We also feel like she clearly stated on the record that although she had reservations about some of the areas of law that were inquired upon, she did state firmly and clearly on the record that she could follow the law, and we think the State improperly used a peremptory on her, in that we have other potential jurors who are Caucasian who have also stated they could follow the law and those other white jurors the State did not chose [sic] to use a peremptory, and we think we have made a prima facie case and we would ask the Court to inquire of the State to state on the record what race neutral reasons, if any, they may have for having struck Mrs. Anderson.

[THE COURT]: That will be denied. I heard the testimony.

Although the trial court did not expressly rule on Freeney's prima facie case, Freeney neither objected on this basis at trial nor complains about the absence of a ruling on appeal. ⁽¹⁹⁾ He instead complains that "the trial court erred by rejecting [his] Batson challenges." In the context of a Batson claim, the defendant has the ultimate burden to demonstrate purposeful discrimination by a preponderance of the evidence. ⁽²⁰⁾ Freeney failed to meet this burden. He generally alleged disparate treatment of black and white veniremembers, asserting that the State failed to exercise peremptory challenges against "other potential jurors who are Caucasian who have also stated they could follow the law." However, he failed to identify these other jurors or point out the similarities between their testimony and Anderson's testimony. And after reviewing the voir dire examination of Anderson in the light most favorable to the trial court's ruling, we cannot conclude that the trial court's denial of the Batson challenge was clearly erroneous. Point of error five is overruled.

Freeney objected to the State's peremptory challenge against Williams under Batson, arguing that the State "used a peremptory challenge for a juror who was otherwise qualified under the law, stating clearly on the record she could follow the law and could return the death penalty if it was based upon facts," and that there were "other similar Anglo potential jurors who have equally qualified who they have not challenged peremptorily." The State responded as follows:

[PROSECUTOR]: Judge, I don't think they have made a prima facie showing of any racial reasons. I will point out that we did select a young African-American female just the other day, and in this case the questioning was quite thorough as to her epiphany and change of opinion here. I think it was quite obvious that she's a very, very weak juror and that she will have some severe problems assessing a death penalty in any case no matter what her statements to you are.

So for that, plus she had some additional statements in here, which in her questionnaire which are not favorable to the State. One of the people that she admires is a strong anti-death penalty opponent. She also - - well, I will just leave it at that. There are several answers in here which were not favorable to this case. So I think the record is very clear that she would not have been a favorable juror. There are other reasons why we made our strike, so I don't believe they have made a prima facie showing.

THE COURT: Well, go ahead and put your reasons for your strike on the record, please.

[PROSECUTOR]: Okay. I will just refer to what I just said, plus her questioning was quite obvious. I don't think she was being truthful with us when she said she could do it based on her questions and answers.

The trial court's denial of Freeney's Batson challenge is supported by the record and is not clearly erroneous. Williams indicated in her questionnaire that she did not believe in the death penalty and that she thought it was unfairly assessed in many cases. She also testified during voir dire that she believed that the prison system should be geared more towards rehabilitation than punishment and that the death penalty was "[n]ot too much" of a deterrent to other people. The trial court did not abuse its discretion in concluding that these were race-neutral reasons for the strike. Point of error six is overruled.

We next turn to Freeney's Batson challenge to the State's strike against Waller, who stated during voir dire examination that she had once been shot in a dance club and that the shooter had never been caught. Freeney objected to the State's peremptory challenge against Waller under Batson, arguing that Waller was "clearly qualified under the law," and that the State did not exercise strikes against "similar prospective jurors" who answered questions in a "similar fashion." The prosecutor responded that Freeney had not demonstrated a prima facie case, and the trial court asked the prosecutor to recite the reasons for the strike for purposes of the record.

The prosecutor explained that Waller was struck because she expressed that rehabilitation was more important than punishment for the person who had shot her, she believed that a friend of hers had been rehabilitated after twenty-five years in prison, she stated that she and her parents had been employed at agencies that provided rehabilitation services, she thought life in prison was a stiffer punishment than the death penalty, she felt like the death penalty was "the easy way out," she believed the death penalty was used too often, and she reacted favorably to the possibility of probation in a murder case. The prosecutor was also concerned that Waller had indicated on her jury questionnaire that she would be a leader in "all situations." The prosecutor stated, "We want to make sure everybody has got equal input, because it should be a decision by 12 individual people and I don't think it would be appropriate for one person to be taking command and making all of the decisions." The trial court found that the prosecutor's explanations were race-neutral and overruled Freeney's objection.

The prosecutor gave numerous reasons for striking Waller, none of which reflected an inherently discriminatory intent. ⁽²¹⁾ The trial court's finding that the State's explanations were race-neutral is supported by the record and is not clearly erroneous. Point of error seven is overruled.

HEARSAY EVIDENCE

In his third point of error, Freeney alleges that the trial court erroneously permitted Detective John Swaim to testify that Shaekia Calhoun told him at the time of Freeney's arrest "[t]hat she was a prostitute and that [she] and Freeney were talking about a price to go to a motel room nearby." Freeney objected to Swaim's testimony on hearsay grounds. The State argued that the testimony was admissible under the present sense impression and statement against interest exceptions to the hearsay rule. ⁽²²⁾ The trial court overruled Freeney's objection and admitted the testimony. Although it did not specify the exception under which the testimony was admitted, the trial court's decision will be sustained if it is correct on any theory of law applicable to the case. ⁽²³⁾

A determination regarding the admissibility of a statement against interest in accordance with Rule 803(24) requires a two-step inquiry. ⁽²⁴⁾ The trial court must first determine whether the statement in question tends to expose the declarant to criminal liability. ⁽²⁵⁾ The trial court then determines whether there are corroborating circumstances that clearly indicate the trustworthiness of the statement. ⁽²⁶⁾ Any number of factors may be considered in the inquiry, including: whether the guilt of the declarant is inconsistent with the guilt of the accused; whether the declarant was so situated that he might have committed the crime; the timing of the declaration and its spontaneity; the relationship between the declarant and the party to whom the declaration was made; and the existence of independent, corroborative facts. ⁽²⁷⁾ Evidence undermining the reliability of the statement as well as evidence corroborating its trustworthiness may be considered. ⁽²⁸⁾ The standard for review of a trial court's decision to admit or exclude a hearsay statement under Rule 803(24) is whether the trial court abused its discretion. ⁽²⁹⁾

Calhoun's statements that she was a prostitute and that she was making arrangements to commit an act of prostitution were sufficiently self-inculpatory because they exposed her to criminal liability. There were also corroborating circumstances that clearly indicated the trustworthiness of her statements. Officer Todd Miller testified that he learned about Calhoun's "profession" by "checking her criminal history." Officer Guy Majors testified that he saw Calhoun the night before Freeney's arrest and told her "[t]o get off the corner." Evidence that Freeney had recently solicited another prostitute in the same area also corroborated Calhoun's statements. The trial court did not abuse its discretion in admitting Swaim's testimony regarding Calhoun's statements. Point of error three is overruled.

IDENTIFICATION PROCEDURE

In point of error four, Freeney argues that the trial court should have suppressed Jason Shiner's in-court identification of Freeney because it was tainted by a suggestive out-of-court identification procedure. Shiner twice identified Freeney prior to trial. First, he identified Freeney in a photospread the morning after Jones's murder. Second, he identified Freeney in a live line-up approximately two weeks later. Freeney specifically complains that the line-up was impermissibly suggestive.

A pre-trial identification procedure may be so suggestive and conducive to mistaken identification that subsequent use of that identification at trial would deny the accused due process of law. ⁽³⁰⁾ A two-step analysis is used to determine the admissibility of an in-court identification: (1) whether the out-of-court identification procedure was impermissibly suggestive; and, (2) whether that suggestive procedure gave rise to a very substantial likelihood of irreparable misidentification. ⁽³¹⁾ The analysis requires an examination of the totality of the circumstances surrounding the particular case and a determination of the reliability of the identification. ⁽³²⁾

Shiner and Miller each testified regarding this issue outside the presence of the jury. Shiner was in jail on a probation revocation at the time of the line-up on May 1, 2002. He testified that, before he viewed the line-up, other inmates at the jail told him that the suspect "had some scratches on his wrists." He did not tell police that he had heard this information prior to the line-up. He testified that he was able to identify Freeney based on his facial features and upper body. He testified that he was able to identify Freeney on that basis as soon as he entered the room, before he even saw the scratches. Miller testified that Shiner identified Freeney as he entered the room. Miller believed that Shiner identified Freeney based on his facial features. He did not think that Shiner would have been able to clearly see the scratches "in the few seconds that the defendant was visible before Jason made the identification."

The trial court overruled Freeney's objection to Shiner's in-court identification of Freeney. The trial court, however, excluded any evidence about Shiner's out-of-court identification of Freeney in the line-up, because the State acknowledged that the line-up was "potentially tainted," and the judge concluded that "everybody has agreed [it] is tainted." Assuming the line-up procedure was impermissibly suggestive based on these facts, we must next determine whether the procedure gave rise to a very substantial likelihood of irreparable misidentification.

We consider several non-exclusive factors when determining whether there was a very substantial likelihood of irreparable misidentification. ⁽³³⁾ These factors are: (1) the witness's opportunity to view the criminal act; (2) the witness's degree of attention; (3) the accuracy of the suspect's description; (4) the level of certainty at the time of confrontation; and, (5) the time between the crime and confrontation. ⁽³⁴⁾ These factors are weighed against the corrupting effect of any suggestive identification procedures. ⁽³⁵⁾

Shiner testified that when he saw Freeney exit the motel room, he "had a glance at the person, but it was probably the best glance that [he] ever took." He testified that the area was lighted, that he and Freeney were less than two feet apart when he saw his face, and that he had additional time to view Freeney's physique when he followed him down the stairs. He testified that the man he saw was bald-headed, 5'11" in height, had a dark complexion, and was wearing a blue T-shirt and sweating. Shiner testified that he not only viewed Freeney when he exited the motel room, but also had a short verbal exchange with him and wrote down his license plate number as he drove away.

Shiner identified Freeney in a photospread shortly after Jones's murder. Miller testified that Shiner made a "tentative identification" of Freeney in the photospread, meaning that he was "fairly sure" but "not positive." Shiner testified that he was "certain" Freeney was the man he saw exiting the motel room when he viewed him in the line-up about two weeks later, and that he was able to identify him before he saw the scratches on his wrists. Finally, Shiner testified that he was able to identify Freeney at trial based on his view of Freeney when he exited the motel room, and not because he remembered him from the line-up.

Given this evidence, we conclude that the line-up procedure was not so suggestive as to present a very substantial likelihood of irreparable misidentification. Shiner viewed Freeney in a lighted area from a few feet away, paid a good amount of attention during his interaction with Freeney, was "fairly certain" when he identified Freeney in the photospread shortly thereafter, and was even more certain when he identified Freeney in the line-up about two weeks later. Shiner testified that he identified Freeney in the line-up before seeing the scratches, and that his in-court identification of Freeney was based on seeing him at the time of the offense. The trial court did not abuse its discretion in permitting the in-court identification. Point of error four is overruled.

ADMISSION OF PHOTOGRAPHS

In point of error eight, Freeney argues that the trial court violated Rule 403 when it admitted gruesome photographs at the guilt or innocence phase of the trial. ⁽³⁶⁾ He specifically complains about State's Exhibits 43, 44, and 45, three photographs of Jones's body as it was found in the motel bathroom.

Rule 403 requires that a photograph have some probative value and that its probative value not be substantially outweighed by its inflammatory nature. ⁽³⁷⁾ A court may consider many factors in determining whether the probative value of photographs is substantially outweighed by the danger of unfair prejudice. These factors include: the number of exhibits offered, their gruesomeness, their detail, their size, whether they are in color or black-and-white, whether they are close-up, whether the body depicted is clothed or naked, the availability of other means of proof, and other circumstances unique to the individual case. ⁽³⁸⁾ The admissibility of photographs over an objection is within the sound discretion of the trial judge. ⁽³⁹⁾

The photographs were admitted during the testimony of Officer Christopher Phillips, who observed Jones's body lying in the bathtub when he arrived at the crime scene. Phillips testified that the photographs were representative of her body as he found it. The 8" x 10" color photographs depict Jones's partially clothed body lying face-up in the bathtub. State's Exhibit 43 shows Jones's body from the neck down. It is neither close-up nor detailed. State's Exhibit 44 offers a closer view of Jones's entire body. State's Exhibit 45 depicts Jones's head, shoulders, and upper chest, and also shows a pair of underwear and an empty bottle of Dial soap floating in the water. Some blood is visible in the photographs, but none of the photographs offer detailed views of Jones's injuries. The photographs depict no more than the gruesomeness of the crime scene as found by the police. ⁽⁴⁰⁾

Freeney also argues that the photographs were "duplicative" of State's Exhibit 46, the scene videotape. A videotape, however, offers a panoramic view of the scene that still photographs often do not offer. ⁽⁴¹⁾ The videotape aided the jury's understanding of the entire crime scene, while the photographs focused on the location and condition of Jones's body as it was found by police. ⁽⁴²⁾

The danger of unfair prejudice did not substantially outweigh the probative value of the photographs. The trial court did not abuse its discretion in admitting State's Exhibits 43, 44, and 45. Point of error eight is overruled.

EXECUTION OF THE MENTALLY ILL

In point of error nine, Freeney argues that "[t]he application of the death penalty to Freeney was unconstitutional under Atkins v. Virginia because he is mentally ill." The Supreme Court in Atkins held that it is unconstitutional to execute the mentally retarded. ⁽⁴³⁾ Freeney urges us to extend this holding to the mentally ill, but cites no authority and presents no argument persuading us to do so. ⁽⁴⁴⁾ Point of error nine is overruled.

TEXAS DEATH PENALTY SCHEME

Freeney's remaining points of error are multiple challenges to the Texas death-penalty scheme. In point of error ten, he alleges that the statutory Penry ⁽⁴⁵⁾ special issue is unconstitutional because it fails to place the burden of proof on the State regarding aggravating evidence. In point of error eleven, he asserts that the statutory Penry special issue is unconstitutional because it permits the very type of open-ended discretion condemned by the United States Supreme Court in Furman v. Georgia, 408 U.S. 238 (1972). In point of error twelve, he contends that the Texas death-penalty scheme is unconstitutional because it does not permit meaningful appellate review of the sufficiency of the evidence supporting the Penry special issue. In point of error thirteen, he claims that the Texas capital sentencing statute's definition of "mitigating evidence" is unconstitutional because it limits the Eighth Amendment concept of "mitigation" to factors that render a capital defendant less morally "blameworthy" for the commission of the capital murder. In point of error fourteen, he argues that the death penalty as presently administered in Texas is cruel and unusual punishment in violation of the United States and Texas Constitutions. In point of error fifteen, he alleges that the "10-12" rule violates the Eighth Amendment. In point of error sixteen, he asserts that the Texas death-penalty statute is unconstitutional because it fails to inform the jury that a single holdout juror on any special issue would result in an automatic life sentence. We have previously rejected all of these arguments, and we decline to reconsider our existing precedents in the instant case. ⁽⁴⁶⁾ Points of error ten through sixteen are overruled.

We affirm the judgment of the trial court.

DATE DELIVERED: April 27, 2005

DO NOT PUBLISH

1. Tex. Penal Code § 19.03(a).

2. Unless otherwise indicated, all references to Articles refer to the Texas Code of Criminal Procedure.

3. Article 37.071, § 2(g).

4. Article 37.071, § 2(h).

5. Miller testified that Dean had no criminal history of being a prostitute.

6. The location was revealed at the punishment phase to be the apartment of Kimberly Bolden. The State introduced evidence at the punishment phase that Freeney stabbed and attempted to rape Bolden in her apartment on April 21, 2002.

7. Jackson v. Virginia, 443 U.S. 307, 319 (1979).

8.

Corwin v. State, 870 S.W.2d 23, 28-29 (Tex. Crim. App. 1993), cert. denied, 513 U.S. 826 (1994).

9.

See Feldman v. State, 71 S.W.3d 738, 753 (Tex. Crim. App. 2002) (holding that a rational jury could conclude that the murders occurred pursuant to the same scheme or course of conduct when defendant killed two truck drivers and later attacked a third person whom he thought was a truck driver).

10.

Zuniga v. State, 144 S.W.3d 477, 486 (Tex. Crim. App. 2004).

11.

Santellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1997).

12.

Zuniga, 144 S.W.3d at 486.

13.

Batson v. Kentucky, 476 U.S. 79 (1986).

14.

Herron v. State, 86 S.W.3d 621, 630 (Tex. Crim. App. 2002); Mathis v. State, 67 S.W.3d 918, 924 (Tex. Crim. App. 2002).

15.

Id.

16.

Id.

17.

Id.

18.

Id.

19. Tex. R. App. P. 33.1.

20.

Purkett v. Elem, 514 U.S. 765, 767-68 (1995).

21.

See Purkett, 514 U.S. at 768 (holding that "[u]nless a discriminatory intent is inherent in the prosecutor's explanation, the reason offered will be deemed race neutral.").

22. Tex. R. Evid. 803(1), 803(24).

23.

Jones v. State, 982 S.W.2d 386, 389 (Tex. Crim. App. 1998), cert. denied, 528 U.S. 985 (1999); State v. Ross, 32 S.W.3d 853, 855-56 (Tex. Crim. App. 2000).

24.

Bingham v. State, 987 S.W.2d 54, 57 (Tex. Crim. App. 1999).

25.

Id.

26.

Id.

27.

Id. at 58; Cofield v. State, 891 S.W.2d 952, 955 (Tex. Crim. App. 1994).

28.

Id.

29.

Bingham, 987 S.W.2d at 57.

30.

Stovall v. Denno, 388 U.S. 293, 301-02 (1967).

31.

Simmons v. United States, 390 U.S. 377, 384 (1968); Barley v. State, 906 S.W.2d 27, 33 (Tex. Crim. App. 1995), cert. denied, 516 U.S. 1176 (1996).

32.

Id.

33.

Neil v. Biggers, 409 U.S. 188, 199-200 (1972); Barley, 906 S.W.2d at 34-35.

34.

Manson v. Brathwaite, 432 U.S. 98, 116 (1977).

35.

Id.

36. Tex. R. Evid. 403.

37.

Id.; Long v. State, 823 S.W.2d 259, 272 (Tex. Crim. App. 1991), cert. denied, 505 U.S. 1224 (1992).

38.

Long, 823 S.W.2d at 272; Santellan, 939 S.W.2d at 172.

39.

Sonnier v. State, 913 S.W.2d 511, 518 (Tex. Crim. App. 1995).

40.

Narvaiz v. State, 840 S.W.2d 415, 430 (Tex. Crim. App. 1992), cert. denied, 507 U.S. 975 (1993).

41.

Ripkowski v. State, 61 S.W.3d 378, 392 (Tex. Crim. App. 2001), cert. denied, 539 U.S. 916 (2003).

42.

Matamoros v. State, 901 S.W.2d 470, 476 (Tex. Crim. App. 1995).

43.

Atkins v. Virginia, 536 U.S. 304, 321 (2002).

44. Tex. R. App. P. 38.1.

45. Article 37.071, § 2(e).

46.

Williams v. State, 937 S.W.2d 479, 491 (Tex. Crim. App. 1996); Pondexter v. State, 942 S.W.2d 577, 586-87 (Tex. Crim. App. 1996), cert. denied, 522 U.S. 825 (1997); Green v. State, 934 S.W.2d 92, 107 (Tex. Crim. App. 1996), cert. denied, 520 U.S. 1200 (1997); Cantu v. State, 939 S.W.2d 627, 648-649 (Tex. Crim. App. 1996), cert. denied, 522 U.S. 994 (1997); Ladd v. State, 3 S.W.3d 547, 575 (Tex. Crim. App. 1999), cert. denied, 529 U.S. 1070 (2000); Prystash v. State, 3 S.W.3d 522, 536-37 (Tex. Crim. App. 1999), cert. denied, 529 U.S. 1102 (2000).