Jenkins, Willie Roy

• Court: Court of Appeals of Texas
• Decided: February 24, 2015
• Docket: AP-77,022
• Status: Published

Opinion

AP-77,022 FILED IN COURT OF CRIMINAL APPEALS COURT OF CRIM1NALAPPEALS AUSTIN, TEXAS February 24, 2015 Transmitted 2/10/2015 1:37:30 AM Accepted 2/24/2015 9:52:53 AM ABELACOSTA, CLERK ABEL ACOSTA No. AP-77,022 CLERK

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

WILLIE ROY JENKINS, Appellant

THE STATE OF TEXAS, Appellee

On direct appeal from the 274th Judicial District Court Cause No. 10-1063, Hays County, Texas Honorable Gary L. Steele

BRIEF OF APPELLEE DEATH PENALTY CASE

WESMAU KATHERINE D. HAYES Hays County District Attorney Assistant Attorney General SBOT 00784539 Lead Counsel 712 S. Stagecoach Trail, Ste. 2057 SBOT 00796729 San Marcos, TX 78666 Texas Office of the Attorney General (512)393-7600 Criminal Appeals Division (512) 393-7619 fax P.O. Box 12548 wes.mau@co.hays.tx.us Austin, TX 78711-2548 (512)936-1400 (512) 320-8132 fax katherine.hayes(g),texasattorneygeneral.gov

The States does not request oral argument. IDENTIFICATION OF PARTIES AND COUNSEL

Pursuant to Tex. R. App. P. 38.1(a), the following is a list of all parties to the

trial court's judgment and all counsel of record:

Victim: Sheryl Ann Norris

Appellant/Criminal Defendant: Willie Roy Jenkins, TDCJ #999581, Allan B. Polunsky Unit, 3872 FM 350 South, Livingston, TX 77351

Counsel for Appellant on appeal: Angela J. Moore, 310 S. St. Mary's, Ste. 1830, San Antonio, TX 78205; and Kerri Anderson Donica, 301 West 3rd Ave., Corsicana, TX 75110

Counsel for Appellant at trial: Norman Lanford, P.O. Box 1136, Cameron, TX 67520; and John R. Duer, P.O. Box 920, Georgetown, TX 78627-0920

Counsel for the State of Texas on appeal: Katherine D. Hayes, Assistant Attorney General, Lead Counsel, Texas Office of the Attorney General, Criminal Appeals Division, P.O. Box 12548, Austin, TX 78711 -2548; and Wes Mau, Hays County District Attorney, 712 S. Stagecoach Trail, Ste. 2057, San Marcos, TX 78666

Counsel for the State of Texas at trial: Lisa M. Tanner, Assistant Attorney General, Texas Office of the Attorney General, Criminal Prosecutions Division, P.O. Box 12548, Austin, TX 78711-2548; and Sherri K. Tibbe, Hays County District Attorney (now retired)

Trial Judge: Honorable GARY L. STEEL, Judge presiding

-l- TABLE OF CONTENTS

IDENTIFICATION OF PARTIES AND COUNSEL i

INDEX OF AUTHORITIES v

STATEMENT OF THE CASE 1

STATEMENT REGARDING ORAL ARGUMENT 2

ISSUES PRESENTED 2

STATEMENT OF FACTS 5

SUMMARY OF THE ARGUMENT 12

ARGUMENT ... , 16

STATE'S REPLY TO POINT OF ERROR 1 (SUFFICIENCY OF THE EVIDENCE) 16

STATE'S REPLY TO POINT OF ERROR 2 (ADMISSION OF DNA EVIDENCE) 21

STATE'S REPLY TO POINT OF ERROR 3 (ADMISSIBILITY OF EVIDENCE OF WILLINGNESS TO PLEA) 25

STATE'S REPLY TO POINT OF ERROR 4 (FAILURE TO GRANT A MISTRIAL) 27

STATE'S REPLY TO POINT OF ERROR 5 (CUMULATIVE ERROR) 30

-li- STATE'S REPLY TO POINT OF ERROR 6 ("10-12" RULE AND NO INSTRUCTION ON EFFECT OF HOLD-OUT JUROR) 31

STATE'S REPLY TO POINT OF ERROR 7 (NO INSTRUCTIONS ON VICTIM IMPACT EVIDENCE) 37

STATE'S REPLY TO POINTS OF ERROR 8-11 (NO INSTRUCTION DEFINING TERMS) 40

STATE'S REPLY TO POINT OF ERROR 12 (NO INSTRUCTION LIMITING SCOPE OF MILITATING EVIDENCE) 43

STATE'S REPLY TO POINT OF ERROR 13 (NO INSTRUCTION THAT FINDING OF GUILT DOES NOT FORECLOSE CONSIDERATION OF MITIGATING EVIDENCE) 45

STATE'S REPLY TO POINT OF ERROR 14 (NO PRESUMPTION IN FAVOR OF DEATH AND NO REQUIREMENT TO CONSIDER MITIGATION INDEPENDENTLY) 48

STATE'S REPLY TO POINT OF ERROR 15 (NO VEHICLE FOR JURY TO RETURN A VERDICT OF LIFE IMPRISONMENT) ....... 50

STATE'S REPLY TO POINT OF ERROR 16 (FAILURE TO QUASH INDICTMENT - APPRENDIv. NEWJERSEY) 53

STATE'S REPLY TO POINT OF ERROR 17 (FAILURE TO PRECLUDE THE DEATH PENALTY - BUSH v. GORE) 58

STATE'S REPLY TO POINT OF ERROR 18 (INSTRUCTIONS FAILED TO PROVIDE AN OPPORTUNITY FOR A "REASONED MORAL RESPONSE") 59

STATE'S REPLY TO POINT OF ERROR 19 (INSTRUCTIONS FAILED TO PROVIDE JURORS A "REASONED AND RATIONAL MORAL RESPONSE") 63

-in- PRAYER 64

CERTIFICATE OF SERVICE ...: 65

CERTIFICATE OF COMPLIANCE .66

-IV- INDEX OF AUTHORITIES

Cases Page

Alameda v. State, 235 S.W.3d 218 (Tex. Crim. App. 2007) :..... 57

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

Apprendi v. New Jersey, 530 U.S. 466 (2000) passim

Barrow v. State, 207 S.W.3d 377 (Tex. Crim. App. 2006) 57

Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010) 17, 20

Burley v. Cabana, 818 F.2d 414 (5th Cir. 1987) 34

Busby v. State, 253 S.W.3d 661 (Tex. Crim. App. 2008) 26, 34, 56

Bush v. Gore, 531 U.S. 98 (2000) x, 15, 58, 59

Caldwell v Mississippi, All U.S. 320 (1985) 33

Camacho v. State, 864 S.W.2d 524 (Tex. Crim. App. 1993) 42

Cannon v. State, 691 S.W.2d 664 (Tex. Crim. App. 1985) 20

-v- Cantu v. State, 842 S.W.2d 667 (Tex. Crim. App. 1992) 25, 58

Castillo v. State, 739 S.W.2d 280 (Tex. Crim. App. 1987) 54

Cathey v. State, 992 S.W.2d 460 (Tex! Crim. App. 1999) 37 Chamberlain v. State, 998 S.W.2d230 (Tex. Crim. App. 1999) 31

Charles v. State, 146 S.W.3d 204 (Tex. Crim. App. 2004) 28

Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996) 19, 20

Coble v. State, 330 S.W.3d 253 (Tex. Crim. App. 2010) 42

Colburn v. State, 966 S.W. 2d 511 (Tex Crim. App. 1998) .47

Crutsinger v. State, 206 S.W.3d 607 (Tex. Crim. App. 2006) 59

Davis v. State, 782 S.W.2d 211 (Tex. Crim. App. 1989) 33

Draughon v. State, 831 S.W.2d 331 (Tex. Crim. App. 1992) 35

Druery v. State, 225 S.W.3d491 (Tex. Crim. App. 2007) 36

-VI- Escamilla v. State, 143 S.W.3d 814 (Tex. Crim. App. 2004) 35, 47

Estrada v. State, 313 S.W.3d274 (Tex. Crim. App. 2010) 35

Feldman v. State, 71 S.W.3d 738 (Tex. Crim. App. 2002) 42

Gamboa v. State, 296 S.W.3d 574 (Tex. Crim. App. 2009) ...... 31, 49

Gardner v. State, 306 S.W.3d 274 (Tex. Crim. App. 2009) 42, 44

Gonzales v. State, 353 S.W. 3d 826 (Tex. Crim. App. 2011) 36

Granviel v. State, 552 S.W.2d 107 (Tex. Crim. App. 1976) 20

Gregg v. Georgia, 428 U.S. 153 (1976) 58

Guevara v. State, 152 S.W.3d 45 (Tex. Crim. App. 2004) 17

Hankins v. State, 132 S.W.3d 387 (Tex. Crim. App. 2004) 59

Hathorn v. State, 848 S.W.2d 101 (Tex. Crim. App. 1992) 35

Havard v. State, 800 S.W.2d 195 (Tex. Crim. App. 1989) 20

-vn- Hayes v. State, 982 S.W.2d 419 (Tex. Crim. App. 1990) 22, 24

Hooper v. State, 214 S.W.3d 9 (Tex. Crim. App. 2007) 17

Hughes v. State, 24 S.W.3d 883 (Tex. Crim. App. 2000) 27

Hutch v. State, 922 S.W.2d 166 (Tex. Crim. App. 1996) 15, 62

Jackson v. Virginia, 443 U.S. 307 (1979) 17, 19

Jenkins v. United States, 380 U.S. 445 (1965) 35

Johnson v. Texas, 509 U.S. 350 (1993) 52

Jurekv. Texas, 428 U.S. 262 (1976) 58

Kelly v. State, 824 S.W.2d 568 (Tex. Crim. App. 1992) 22

Laddv. State, 3 S.W.3d 547 (Tex. Crim. App. 1999) 42

Lagrone v. State, 942 S.W.2d 602 (Tex. Crim. App. 1997) 33

Lawton v. State, 913 S.W.2d 542 (Tex. Crim. App. 1995) 33, 34

-vni- Leza v. State, 351 S.W.3d 344 (Tex. Crim. Ap. 2011) 39, 42, 56

Lockhart v. McCree, 476 U.S. 162 (1986) 34

Luna v. State, 268 S.W.3d 594 (Tex. Crim. App. 2008) 44

Martinez v. State, 924 S.W.2d 693 (Tex. Crim. App. 1996) 50

Martinez v. State, 327 S.W.3d 727 (Tex. Crim. App. 2010) 20

Mays v. State, 318 S.W.3d 368 (Tex. Crim. App. 2010) 39, 52, 56

McCarthy v. State, 65 S.W.3d 47 (Tex. Crim. App. 2001) 26

McFarland v. State, 928 S.W.2d 482 (Tex. Crim. App. 1996) 47

Mills v. Maryland, 486 U.S. 367 (1988) 33, 34

Montgomery v. State, 810 S.W.2d 372 (Tex. Crim. App. 1991) 22, 25

Neal v. State, 256 S.W.3d 264 (Tex. Crim. App. 2008) 59

Ocon v. State, 284 S.W.3d 880 (Tex. Crim. App. 2009) 28, 30

-IX- Perry v. State, 158 S.W.3d 438 (Tex. Crim. App. 2004) 37, 56

Prystash v. State, 3 S.W.3d 522 (Tex. Crim. App. 1999) 33, 34, 35

Rayford v. State, 125 S.W.3d 521 (Tex. Crim. App. 2003) 54, 59

Richardson v. State, 879 S.W.2d 874 (Tex. Crim. App. 1993) 15, 62

Roberts v. State, 220 S.W.3d 521 (Tex. Crim. App. 2007) 56, 59

Russeau v. State, 171 S.W.3d 871 (Tex. Crim. App. 2005) 34, 54

Russeau v. State, 291 S.W.3d 426 (Tex. Crim. App. 2009) passim

Saldano v. State, iyi S.W.3d 77 (Tex. Crim. App. 2007) 39, 49, 52

Scheanette v. State, 144 S.W.3d 503 (Tex. Crim. App. 2004) 45

Sharp v. State, 101 S.W.2d 611 (Tex. Crim. App. 1986) 55

Simmons v. South Carolina, 512 U.S. 154 (1994) 36

Smith v. Texas, 543 U.S. 37 (2004) 52

-x- Threadgill v. State, 146 S.W.3d 654 (Tex. Crim. App. 2004) 34, 35, 58, 59

Wardrip v. State, 56 S.W.3d 588 (Tex. Crim. App. 2001) 19, 20

Weadv. State, 129 S.W.3d 126 (Tex. Crim. App. 2004) 28

Webb v. State, 232 S.W.3d 109 (Tex. Crim. App. 2007) 27

Whitaker v. State, 286 S.W.3d 355 (Tex. Crim. App. 2009) 56

Williams v. State, 937 S.W.2d 479 (Tex. Crim. App. 1996) 47

Williams v. State, 301 S.W.3d 675 (Tex. Crim. App. 2009) 34, 36

Woods v. State, 152 S.W.3d 105 (Tex. Crim. App. 2004) 54

Wooten v. State, 400 S.W.3d 601 (Tex. Crim. App. 2013) 38

Constitutions. Statutes, and Rules

Tex. Const, art. I, § 3 55

Tex. Const, art. I, § 10 55

Tex. Const, art. I, § 19 55

Tex. Code Crim. Proc. art. 36.22 27, 29

-xi- Tex. Code Crim. Proc. art. 37.071, § 2(d)(1) 49

Tex. Code Crim, Proc. art. 37.0711, § 2(b)(1) 43

Tex. Code Crim, Proc. art. 37.0711 § 2(b)(2) .43

Tex. Code Crim. Proc. art. 37.0711 § 3(b)(1) ..r 2,19

Tex. Code Crim. Proc. art. 37.0711 § 3(b)(2) 2

Tex. Code Crim. Proc. art. 37.0711 § 3(d)(1) 32

Tex. Code Crim. Proc. art. 37.0711 § 3(d)(2) 32

Tex. Code Crim. Proc. art. 37.0711 §3(e) 2,46,49

Tex. Code Crim. Proc. art. 37.0711 § 3(f)(1) 32

Tex. Code Crim. Proc. art. 37.0711 § 3(f)(2) 32

Tex. Code Crim. Proc. art. 37.0711 §3(i) 33

Tex. Code Crim. Proc. art. 37.0711, § 3(j) 2

Tex. Code Crim. Proc. art. 44.2511(b) 16

Tex. Penal Code § 12.31(a) 53

Tex. Penal Code § 19.02(b)(1) 17

Tex. Penal Code § 19.02(b)(2) 17

Tex. Penal Code § 19.03(a) 17

Tex. Penal Code § 19.03(b) 17, 53

Tex. R. App. P. 9.4(e) 66

-xn- Tex. R. App. P. 9.4(i)(l) 66

Tex. R. App. P. 9.4(i)(2)(A) 66

Tex. R. App. P. 33.1(a) 54

Tex. R. App. P. 33.1(a)(1)(A) 50

Tex. R. App. P. 38.1(a) i

Tex. R. App. P. 38.1(e) 26

Tex. R. App. P. 38.1(f) 26

Tex. R. App. P. 38.1(h) 26

Tex. R. App. P. 38.1(i) 19, 60

Tex. R. Evid. 702 22

-xm- FILED IN COURT OF CRIMINAL APPEALS

March 3, 2015 No. AP-77,022 ABELACOSTA, CLERK

Corrected page 1 IN THE COURT OF CRIMINAL APPEALS OF TEXAS

v.

On direct appeal from the 274th Judicial District Court Cause No. 10-1063, Hays County, Texas Honorable Gary L. Steele

To the Honorable Justices of the Court of Criminal Appeals:

STATEMENT OF THE CASE

On May 31, 2013, a Hays County jury convicted Appellant of the capital

offense of murdering Sheryl AnnNorris. (2 CR 327; 40 RR 46).'The indictment

1 "CR" is the Clerk's Record; "RR" is the Reporter's Record of transcribed testimony and exhibits. Citations are preceded by volume number and followed by page or exhibit number (with "SX" or "DX" for the State's, or Defendant's, exhibits).

-1- alleged that on or about November 24,1975, Appellant intentionally caused Norris's

death by strangling her (paragraph 1) or drowning her (paragraph 2) during the course

of his committing or attempting to commit the offense of aggravated rape. (1 CR 4).

A separate sentencing hearing was conducted pursuant to Tex. Code Crim. Proc. art.

31.0711, §§ 3(b)(l)-(2) and 3(e). The jury answered "yes" to the special issues on

deliberateness and future dangerousness, and answered "no" to the special issue on

mitigation. (2 CR 336-39; 48 RR 110-11). On June 13, 2013, Appellant was

sentenced to death by lethal injection. (2 CR 342-45). Appellant filed a motion for

new trial which was overruled by operation of law. (2 CR 347-48). Direct appeal to

this Court is automatic. Tex. Code Crim. Proc. art. 37.011, § 3(j).

STATEMENT REGARDING ORAL ARGUMENT

The State does not believe the decisional process would be significantly aided

by oral argument. The dispositive issues have been authoritatively decided, and the

facts and legal arguments are adequately presented in the briefs and record.

Appellanthas waived oral argument (Appellant's Brief["Br."] at cover), and the State

will do the same.

ISSUES PRESENTED

POINT OF ERROR 1: The death sentence must be reformed to life imprisonment because the evidence is legally insufficient to establish that Appellant deliberately caused the death of Sheryl Ann Norris.

-2- POINT OF ERROR 2: The trial court erred in failing to suppress any and all DNA evidence and testimony due to the failure of the testing to meet quality assurance standards.

POINT OF ERROR 3: The trial court erred in not allowing evidence of Appellant's willingness to enter a plea to aggravated sexual assault because this was evidence relevant to the mitigation evidence, special issue [number three].

POINT OF ERROR 4: The trial court erred in failing to grant a mistrial after jury misconduct was brought to the trial court's attention.

POINT OF ERROR 5: The cumulative impact ofthe above errors was so great that reversal is required.

POINT OF ERROR 6: The trial court violated the Sixth, Eighth, and Fourteenth Amendments of the United States Constitution by failing to instruct the jury that a vote by one of them would result in a life sentence despite the statutory requirement of ten votes for a "No" answer to the question of future dangerousness, or for a "Yes" vote for finding a mitigating circumstance.

POINT OF ERROR 7: The trial court violated the Eighth and Fourteenth Amendments of the United States Constitution by failing to instruct the jury (a) that its consideration of victim impact evidence should not be conducted in connection with the future-dangerousness special issue; (b) that its consideration ofvictim impact evidence did not relieve the State of its burden to prove the "future dangerousness" issue beyond a reasonable doubt; (c) to disregard victim impact evidence that was not shown to be within the knowledge or reasonable expectation of the defendant; and (d) to not make a comparative worth analysis of the value ofthe victims to their families and the community compared to the defendant or other members of society.

POINT OF ERROR 8: The trial court violated the Eighth and Fourteenth Amendments when it failed to define the word "probability" for the jury during the sentencing phase.

-3- POINT OF ERROR 9: The trial court violated the Eighth and Fourteenth Amendments when it failed to define the phrase "criminal acts of violence" for the jury during the sentencing phase.

POINT OF ERROR 10: The trial court violated the First, Eighth, and Fourteenth Amendments of the United States Constitution by failing to define the word "militates" so as to preclude consideration of the defendant's age, race, sex, national origin, religion, political views or sexual orientation as a factor supporting a death sentence.

POINT OF ERROR 11: The trial court violated the Eighth and Fourteenth Amendments when it failed to define the phrase "continuing threat to society" for the jury during the sentencing phase.

POINT OF ERROR 12: The trial court violated the Eighth and Fourteenth Amendments of the United States Constitution by failing to instruct the jury so as to limit the scope of militating evidence to that which a juror might regard as increasing the defendant's moral blameworthiness.

POINT OF ERROR 13: The trial court violated the Eighth and Fourteenth Amendments of the United States Constitution by failing to instruct the jury that their finding of guilt in the first phase of the trial did not foreclose consideration of evidence which they believed tended to reduce the moral blameworthiness of the defendant.

POINT OF ERROR 14: The trial court violated the Eighth Amendment by failing to instruct the jury that there is no presumption in favor of death even if they found [Appellant] to be a "future danger" in answer to special issue number two, and that special issue number three, regarding mitigating circumstances, is to be taken up and considered independently without regard to the jury's finding on number two.

POINT OF ERROR 15: The trial court violated the Eighth Amendment when it failed to instruct the jury so as to provide a vehicle for a juror to return a life verdict where the juror concludes that the aggravating

-4- factors, although established by the evidence, still are not so severe as to call for death as a punishment.

POINT OF ERROR 16: The trial court erred when it refused to quash the indictment because a grand jury had not considered and alleged in an indictment the facts legally essential to [Appellant's] conviction and death sentence.

POINT OF ERROR 17: The trial court erred in denying a defense motion to preclude the death penalty as a sentencing option due to Equal Protection violations.

POINT OF ERROR 18: The trial court violated [Appellant's] rights under the Eighth Amendment of the United States Constitution in that the sentencing phase instructions failed to provide the jury the opportunity to have its decision reflect a "reasoned moral response" to the offender and his offense.

POINT OF ERROR 19: The trial court violated the Eighth and Fourteenth Amendments when it failed to instruct the jury so as to provide a reasoned and rational moral process for the consideration and implementation of mitigating circumstances.

(Appellant's Br. 47-124).

STATEMENT OF FACTS2

In August of 1975, Wayne Andrus moved from Florida to San Marcos, Texas,

to attend school at Southwest Texas University. (37 RR 133). Wayne rented unit #602

at the Ye Olde Colony Apartments at the corner ofAquarena Springs and Interstate-

2 This Statement of Facts focuses on the evidence at trial. Appellant does not challenge the sufficiency ofthe evidence supporting the future dangerousness or mitigation special issues.

-5- 35. (37 RR 112, 119-20, 139). Wayne's girlfriend, 20-year-old Sheryl Ann Norris,

stayed behind in Florida. (37 RR 134-35). In September of 1975, Sheryl joined

Wayne in San Marcos, moving into apartment #602 with him. (37 RR 133-35). Sheryl

soon got a job working as a secretary at the Crime Prevention Institute of Texas

located just a few blocks from the apartment complex. (37 RR 104, 112-14, 138).

Although she felt homesick occasionally, she was excited about the opportunity to

begin a new life in Texas. (37 RR 91).

On November 24,1975, Sheryl went to work at 8:00 a.m. and stayed there until

about noon, when she went back to her apartment for lunch. (37 RR 110). She was

particularly excited because, the following day, she was going to meet her older sister

to see a concert in Alabama before heading to visit her family in Florida for the

Thanksgiving holidays. (37 RR 92, 110). When she did not return to the office after

lunch, her boss was not concerned because Sheryl had mentioned earlier in the day

that she wanted to get off early from work to go home, and pack for the trip. (37 RR

114-15).

Sheryl's boyfriend, Wayne, called the apartment several times over the lunch

hour knowing Sheryl would be there, but got no answer and left messages. (37 RR

137-38). After finishing his exam on campus that afternoon, Wayne picked up his car

around 5:00 p.m. at the mechanics and then headed for home. (37 RR 138-39).

-6- As Wayne walked up the stairs towards their apartment, he immediately

noticed that their front door was ajar, which worried him because the couple always

locked the door. (37 RR 37 RR 140). Entering the apartment, Wayne found the stereo

blaring, which was unusual because they never played their music loudly. (37 RR

141-42). Wayne also noticed that the rug was "all crumpled up," which was out ofthe

ordinary because their apartment customarily was tidy. (37 RR 142, 148). Wayne

called out to Sheryl but got no answer, so he walked towards the bedroom and then

the across the corridor to their bathroom looking for her. (37 RR 142-43).

When he entered the bathroom, Wayne saw Sheryl laying face up, bent

backwards over the bathtub with her head, lower arms, and shoulders submerged in

the tub which was almost full with water. (37 RR 144, 214, 263). She had on the

white blouse and pair of boots that she had worn to work that morning, but that was

all. (37 RR 144, 214, 258). Sheryl's pants and panties were off and were bunched

around the lower part of one of her boots, which she was still wearing. (37 RR 214).

In panic, Wayne reached down to help Sheryl and immediately felt she was stiff. (37

RR 144). Fearing the assailant might still be present, Wayne ran to a neighbor's home

and called the police. (37 RR 145).

Evidence at the crime scene indicated that Sheryl struggled with her attacker

and had been sexually assaulted before her murder. (38 RR 85). Investigating officers

-7- found a dollar bill and coins scattered on the floor which was out of the ordinary for

the otherwise tidy apartment. (37 RR 181, 184, 253). There was also a hole in the

sheetrock ofthe wall near a light switch in the living room. (37 RR 225-26). A white

powdery substance that matched the sheetrock was recovered from the toe ofSheryl's

right boot, the upper area ofher left boot, and inside her pants. (37 RR 226-27). Feces

were discovered in the middle of the bed, the edge of a sheet, the floor of the

bathroom by Sheryl's foot, and underneath her body. (37 RR 258, 260). Blood and

feces were also found on Sheryl's buttocks and genital area. (37 RR 218, 265). Two

scarves were knotted tightly around her neck like a ligature. (37 RR 214,220-21). A

wristwatch that Sheryl was wearing at the time of her murder was submerged under

water with the clock stopped at 12:31 p.m., which would have been just 15 to 20

minutes after she returned home from work. (37 RR 263). Investigators believed that

given the short time frame of events, the perpetrator of the rape was also the

murderer.

It was subsequently determined that Sheryl's death was a homicide caused by

strangulation or drowning. (38 RR 99). During the autopsy, Dr. Charles Bell collected

evidence and specimens that were submitted to the Texas Department of Public

Safety (DPS) Crime Laboratory in Austin for scientific analysis. A vaginal swab

revealed the presence of semen, but no suspect was generated. (37 RR 222-23, 224-

-8- 25, 227-30). At the time, forensic testing was fairly limited to presumptive tests for

the presence of blood, sperm searches, and RFLP or blood group comparisons. (37

RR 206, 227-30).

In October 1997, the case was re-submitted to the DPS Crime Lab for new

analysis and evaluation for the recovery ofany evidence. (37RR237; 38RR140-41).

DNA testing using PCR analysis was attempted, but yielded no results or no

interpretable results. An extract obtained from the vaginal smear slide in 1997. (39

RR 71-73, 81). The same extract was again tested for DNA in 1999 by the DPS Crime

Lab, but this time using STR analysis. (39 RR 151-52). One partial DNA profile from

an unknown contributor was identified; however, the profile contained an insufficient

number of loci to allow DPS to run it through CODIS. (39 RR 170).

With the advent of MiniFiler, a more advanced type of PCR testing, San

Marcos Police Detective Penny Dunn requested the DPS Crime Lab analyze a vaginal

smear slide. (38 RR 149). On July 6, 2010, DPS Forensic Scientist Negin Kuhlmann

reported that she obtained a sufficient DNA profile by using MiniFiler, which

amplifies DNA profiles contained in degraded samples. (38 RR 150; 39 RR 60-63,

222). The newly-obtained DNA profile was entered into CODIS. (39 RR 228). On

August 5, 2010, the DPS Crime Lab advised that there was a "hit" in the CODIS

database, which means a match with an offender in the CODIS system. (38 RR 151;

-9- 39 RR 160). On August 9,2010, the offender was verified by CODIS as being "Willie

Roy Jenkins (B/M, DOB: 07/30/1953)." (38 RR 152).

At the time the suspect profile was identified, Appellant was being held at the

Coalinga State Hospital in Fresno County, California, under a civil commitment.3

San Marcos Police Officer Penny Dunn and Corporal Scott Johnson traveled to

California to obtain a specimen for direct comparison to the evidentiary DNA. (38 RR

157). After securing a search warrant, the officers obtained a buccal swab (saliva)

specimen from Appellant. (38 RR 158). The officers interviewed Appellant about the

capital crime, but he denied ever knowing the victim and stated that he did not know

what the officers were talking about. (38 RR 159).

Appellant's saliva sample was secured until September 2,2010, when Corporal

Johnson delivered it to the DPS Crime Lab for analysis and direct comparison to the

evidentiary DNA. (39 RR 236-37). On September 15, 2010, DPS Forensic Scientist

Kuhlmann advised that Appellant could not be excluded as a contributor to the DNA

profile obtained from the vaginal smear slide 14-B. (39 RR 237-38). The probability

of seeing someone else with the same DNA profile as Appellant was 1 in 365.6

quadrillion Caucasians, 1 in 5.705 quadrillion blacks, and 1 in 20.37 quintillion

3 The trial court granted the defense's motion in limine which prevented the State from informing the jury during the guilt/innocence phase that Appellant had been designated a "sexually violent offender" by the State of California. (2 CR 231 -33, 236).

-10- Hispanics. (39 RR 245). Appellant's DNA profile was additionally identified in a

handprint on the shoulder of the white blouse that Sheryl Ann Norris had been

wearing at the time of her death. (38 RR 162-65; 39 RR 248-50, 255-58). The

probability of another black individual having the same DNA profile as Appellant's

was reported to be 1 in 44.68 trillion blacks. (39 RR 259).

Records obtained from the military established that in 1975, Appellant was

enlisted in the United States Marine Corps and stationed at the base in Twentynine

Palms, California. (38 RR 187; 49 RR at SX-66). However, Appellant was granted

emergency leave from the base for a period ofthirteen days that began on November

22,1975, just two days before the capital murder. (38 RR 192-93). During that time,

Appellant traveled to Texas to visit his wife who was then hospitalized in San

Antonio. (29 RR 30-32). He also stayed at the home of his wife's father in Marion,

Texas, which is located about 30 miles from San Marcos where the murder occurred.

(29 RR 38). Appellant was no stranger to the area: he grew up in Marion and attended

one semester at Southwest Texas State University on a football scholarship before

quitting to join the Marines. (38 RR 153; 39 RR 24-25).

The defense moved for an instructed verdict, alleging that the State failed to

establish that Appellant was guilty ofmurder and that DNA evidence only connected

Appellant to a sexual assault, and the trial court denied the motion. (39 RR 282). The

-11- defense presented no witnesses at the guilt-innocence stage. During closing argument,

defense counsel presented the following defensive theories: that DNA evidence

proves Appellant committed a sex act, possibly forcibly, but not a murder (40 RR 24-

25,28); that Sheryl's boyfriend Wayne was a "dope dealer" who might have exposed

her to individuals who caused her death (40 RR 27-28); that the State never checked

Wayne's alibi (40 RR 25); and that the State failed to meet its burden of establishing

Appellant's guilt beyond a reasonable doubt because the ligatures tied around

Sheryl's neck were lost and had never tested for DNA (id. at 26-27).

SUMMARY OF THE ARGUMENT

State's Reply to Point of Error 1: Appellant fails to briefhis stated claim that

evidence is insufficient to show that he deliberately killed Sheryl AnnNorris. Instead,

he asserts that there is no evidence linking him to the killing, which is a challenge to

the sufficiency of the evidence at trial. By failing to brief the initial issue, Appellant

has waived it on appeal. Regardless, the evidence is legally sufficient to support

Appellant's capital murder conviction and the jury's affirmative answer to the

deliberateness special issue. The evidence at trial established a well-confined timeline

of events proving that Appellant's commission of aggravated rape was attendant to

Sheryl's death, both circumstantially and forensically. Appellant's DNA profile was

identified in semen located inside the victim and on her clothing. The medical

-12- examiner's testimony and evidence regarding the positioning of Sheryl's body was

consistent with someone being deliberately strangled and drowned. The Court should

therefore overrule Appellant's first point of error.

State's Reply to Point of Error 2: The trial court properly admitted DNA

evidence which conclusively linked Appellant's DNA profile to semen recovered

from inside and on the victim. Following a hearing, the trial court denied Appellant's

motion to suppress all DNA results as fruit of the poisonous tree. Appellant

complained that the DPS Crime Lab failed to use a reagent blank and thus never

should have submitted any DNA profile into CODIS. The FBI standards that

Appellant relied upon did not apply to extracts obtained in 1997. Regardless, the DPS

Crime Lab did use a reagent blank in 1997, and subsequent testing in 1999 and 2010

using the same extraction did not need a new reagent. Because the trial court did not

abuse its discretion in denying Appellant's motion, the Court should reject

Appellant's claim.

State's Reply to Point of Error 3: The trial court did not prevent Appellant

from presenting mitigating evidence at punishment. Prior to trial, Appellant filed an

"Offer to Enter Plea of Guilty." He cites noting in the record to prove that he ever

tried to introduce this "evidence" at punishment and was denied by the trial court. The

Court should reject the claim as inadequately briefed and waived on appeal.

-13- State's Reply to Point of Error 4: Although juror misconduct did occur when

one juror sent text messages to a childhood friend, the trial court took appropriate

remedial actions that preserved the integrity of the punishment phase proceedings.

Because Appellant failed to show harm, the trial court did not abuse its discretion in

denying a new trial.

State's Reply to Point of Error 5: Appellant fails to show error in the four

preceding claims, so the Court should reject his claim of cumulative error because

non-error cannot be aggregated.

State's Reply to Points of Error 6 to 19: In fourteen points of error,

Appellant rehashes arguments that have been rejected by this Court on multiple

occasions over many years—the "10-12" Rule and no instruction on the effect of a

hold-out juror (Issue 6); no instructions on victim impact evidence (Issue 7); no

instructions defining "probability," "criminal acts of violence," "militates," and

"continuing thereat to society" (Issues 8,9,10,11); no instruction limiting militating

evidence to that which might reduce moral blameworthiness (Issue 12); no instruction

requiring consideration ofmitigating evidence (Issue 13); no instruction that there is

no presumption in favor ofdeath or requirement to consider mitigating circumstances

independently (Issue 14); no instruction providing a vehicle for jurors to return a

verdict for life imprisonment (Issue 15); failure to quash the indictment because the

-14- special issues were not pled as required under Apprendi v. New Jersey, 530 U.S. 466

(2000) (Issue 16); failing to preclude the death penalty as a sentencing option based

on Bush v. Gore, 531 U.S. 98 (2000) (Issue 17); no vehicle for jurors to express a

"reasoned moral response" to the evidence (Issue 18); and no satisfactory process for

jurors to consider and give effect to mitigating circumstances (Issue 19).

Appellant failed to present several claims to the trial court (Issues 7,10,12,14,

15, 16(b)-(e), 18 and 19), and must show fundamental error and egregious harm on

appeal. Regardless, he cannot show that any claim has merit. Appellant cannot

overcome the presumption that jurors understood the instructions in their intended

meaning, followed the instructions given, and acted rationally in discharging their

duties. See, e.g., Hutch v. State, 922 S.W.2d 166, 172 (Tex. Crim. App. 1996);

Richardson v. State, 879 S.W.2d 874, 882 (Tex. Crim. App. 1993). The special

punishment issues and instructions submitted to the jury have consistently been found

to be constitutional, and Appellant suggests nothing new for this Court to hold

otherwise. Because the issues have been thoroughly litigated, examined, explained,

and rejected ad infinitum, the Court should overrule Appellant's sixth to nineteenth

points of error.

-15- ARGUMENT

STATE'S REPLY TO POINT OF ERROR 1 (SUFFICIENCY OF THE EVIDENCE)

In his first point of error, Appellant contends that his death sentence must be

reformed to life imprisonment because the evidence is legally insufficient to establish

that he deliberately caused the death of Sheryl Ann Norris. (Appellant's Br. 47-49)

The first special issue at punishment concerned whether Appellant caused Norris's

death deliberately. (2 CR 336). However, Appellant also contends that he is entitled

to an acquittal because the State failed to prove the underlying offense of murder.

(Appellant's Br. 49).4 Regardless, the evidence is legally sufficient to support the

jury's verdict at trial and its affirmative answer to the deliberateness issue so the

Court should overrule Appellant's first point of error.

The evidence is legally sufficient to support Appellant's capital murder conviction.

The indictment in this case alleged that Appellant intentionally caused the

death of Sheryl Ann Norris by strangling her (paragraph One) or drowning her

(paragraph Two) in the course ofhis committing or attempting to commit aggravated

4 Appellant states thathissentence should bereformed to a lifesentence andthat he is entitled to an acquittal. (Appellant's Br. 47,49). Acquittal is not an option if the Court finds that evidence is legally insufficient to support an affirmative answer to a special issue. Instead, Article 44.2511(b) ofthe Texas Code ofCriminal Procedure requires that a sentence of death be reformed to a sentence of confinement for life.

-16- rape. (1 CR 4). At the close of evidence, the jury convicted Appellant of capital

murder as charged in the indictment. (2 CR 327).

In reviewing the sufficiency ofthe evidence, an appellate court must determine

whether, considering all the evidence in the light most favorable to the verdict, the

jury was rationally justified in finding guilt beyond a reasonable doubt. Jackson v.

Virginia, 443 U.S. 307,319 (1979); Brooks v. State, 323 S.W.3d 893,899 (Tex. Crim.

App. 2010). "Circumstantial evidence is as probative as direct evidence in

establishing the guilt of an actor, and [can alone] be sufficient to establish guilt."

Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Guevara v. State,

152 S.W.3d 45, 49 (Tex. Crim. App. 2004)).

A person commits murder if he "intentionally or knowingly causes the death

of an individual." Tex. Penal Code § 19.02(b)(1). A person commits capital murder

if he "commits murder as defined under Section 19.02(b)(1), and:... (2) the person

intentionally commits the murder in the course ofcommitting or attempting to commit

... aggravated sexual assault[.]" Id., § 19.03(a). Appellant concedes in his brief that

evidence "may support a rational jury's finding of aggravated sexual assault," but

argues there is "no evidence" to support a finding of murder and that the scarves

recovered from around the victim's neck were lost. (Appellant's Br. 49).

•17- The evidence at trial established a well-confined timeline ofevents proving that

Appellant committed the aggravated rape of Sheryl Ann Norris and that the rape was

attendant to her death, both circumstantially and forensically. Sheryl's former

supervisor testified that on November 24, 1975, Sheryl left the office at 12:05 p.m.

(37 RR 110). A map of the area showed that Sheryl's apartment was located only a

short distance from work, which made it a 5 or 10 minute trip for her to return home.

(37 RR 112-14,138; 49 RR at SX-15). Sheryl's body was found partly submerged in

water in the bathtub, with her neck tightly tied with ligatures. (37 RR 177, 186, 212,

220; 38 RR 102,108; 49 RR at SX-40 to SX-42, SX-49). Her watch, also submerged

in water, had stopped at 12:31 p.m., just 15 to 20 minutes after she would have

returned home. (37 RR 263; 38 RR 110; 49 RR at SX-51). Forensic testing identified

Appellant's DNA profile in semen recovered inside Sheryl's body and in the

handprint found on her white shirt. (37 RR 222-23; 39 RR 255-56,237-38). Because

the evidence only supports a theory that Appellant was continually involved the crime

from beginning to end, the evidence is legally sufficient to support the jury's verdict

that Appellant was guilty of capital murder beyond a reasonable doubt.

The evidence is legally sufficient to support the jury's affirmative answer to the deliberateness special issue.

To the extent Appellant challenges the sufficiency ofthe evidence showing the

•18- he deliberately caused Sheryl Ann Norris's death, the claim should be rejected.

Appellant provides no explanation for why he believes the evidence is insufficient

apart from the caption of his claim. (Appellant's Br. 47-49). His contention that the

State failed to prove he committed murder and that scarves were lost are, at best,

challenges to the sufficiency ofthe evidence at trial. (Appellant's Br. 49). Appellant's

claim is inadequately briefed and the issue is therefore waived on appeal. See Tex. R.

App. P. 38.1(i) (requiring a brief to contain a clear and concise argument for the

contentions made, with appropriate citations to authorities). Even if the claim is

preserved, the evidence is legally sufficient to show that Appellant acted

"deliberately" within the meaning of Tex. Code Crim. Proc. art. 37.0711, § 3(b)(1).

At the punishment phase, the jury answered affirmatively the first special issue

which asked "Do you find from the evidence beyond a reasonable doubt that the

conduct of the Defendant, Willie Roy Jenkins, that caused the death of the deceased

was committed deliberately and with the reasonable expectation that the death ofthe

decedent, Sheryl Ann Norris, would result?" (2 CR 336). This Court reviews the

sufficiency of the evidence supporting the jury's affirmative finding using the

Jackson v. Virginia legal-sufficiency standard.5 Before answering "yes" to the

5 Challenges to the sufficiency of the jury's affirmative answer to the deliberateness special issue were previously reviewed for factual sufficiency. Wardrip v. State, 56 S.W.3d 588, 591 (Tex. Crim. App. 2001) (citing Clewis v. State, 922 S.W.2d 126,

-19- deliberateness special issue, the jury needed to find "a moment ofdeliberation and the

determination on the part ofthe actor to kill[.]" Cannon v. State, 691 S.W.2d 664,667

(Tex. Crim. App. 1985). "An act need not be premeditated to be deliberate, however,

and the killing may occur during a 'frenzy.'" Wardrip v. State, 56 S.W.3d at 592

(citingHavardv. State, 800 S.W.2d 195, 212 (Tex. Crim. App. 1989), and Granviel

v. State, 552 S.W.2d 107, 122-23 (Tex. Crim. App. 1976)).

In this case, the evidence ofthe circumstances ofthe capital crime is sufficient

to support the jury's determination that Appellant acted deliberately in causing the

death of Sheryl Ann Norris. A rational trier of fact would have found the above-

described timeline of events to be compelling evidence of Appellant's deliberate

conduct. Additionally, the medical examiner testified that death by drowning or

strangulation is not a quick death (38 RR 114-15); that it is typical a victim would

struggle with the assailant (id. at 116); that even if the victim temporarily loses

consciousness after having blood flow cut off, the assailant must continue to exert

sufficient force for several minutes in order to kill the victim (id. at 116-17); and that

death by strangulation at the hands of another is not something that occurs

unintentionally (id. at 117). The deliberateness ofAppellant's actions are also shown

129 (Tex. Crim. App. 1996)). The Court subsequently "overruled Clewis and, in effect, overruled the Wardrip factual-sufficiency holding as well." Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010) (citing Brooks v. State, 323 S.W.3d at 895).

-20- by the tightly knotted ligature around Sheryl's neck and the fact that she was bent

over backwards in the bathtub submerged in water. (3 7 RR 177,186,212; 38 RR 102,

108; 49 RR at SX-40 to SX-42, SX-49). Jurors were also faced with evidence of the

frenzied nature ofAppellant's attack including money scattered on the floor; the hole

in the sheetrock wall and white powdery substance on Sheryl's boot and clothing; a

trial of feces leading from the center of the bed, to the sheet, to the bathroom floor,

and underneath Sheryl's body; and the presence of blood mixed with feces around

Sheryl's buttocks and genital area. (37 R R 218, 258, 260). The jury had sufficient

evidence to find beyond a reasonable doubt that when Appellant left Sheryl bent over

backwards in a tub full ofwater with her head submerged and a scarftightly knotted

around her neck, that it would be reasonable to believe her death would result. The

Court should therefore overrule Appellant's first point of error.

STATE'S REPLY TO POINT OF ERROR 2 (FAILURE TO SUPPRESS DNA EVIDENCE)

Appellant contends that the trial court erred in failing to suppress any and all

DNA evidence and testimony due to the failure of the testing to meet quality

assurance standards. (Appellant's Br. 49-55). On the record in this case, the trial court

properly admitted reliable scientific DNA evidence which conclusively linked

Appellant's DNA profile to semen recovered from inside and on the victim.

-21- Determination ofthe admissibility ofevidence rests within the sound discretion

of the trial court. The trial court's admission of evidence will not be disturbed absent

a clear abuse of discretion. To show a clear abuse of discretion requires more than a

showing that this Court disagrees with the trial court's determination of the issue.

Rather, a clear abuse ofdiscretion is shown only when the trial court's determination

falls outside "the zone of reasonable disagreement." Montgomery v. State, 810

S.W.2d 372, 386, 391 (Tex. Crim. App. 1991). An appellate court's review in

conducted in light ofthe evidence before the trial court at the time the disputed ruling

was made. Hayes v. State, 982 S.W.2d 419, 422 (Tex. Crim. App. 1990).

This Court applies a three-part reliability test to determine the admissibility of

scientific testimony under Tex. R. Evid. 702: (1) the scientific theory must be valid;

(2) the technique applying the theory must be valid; and (3) the technique in question

must have been properly applied on the occasion in question. Kelly v. State, 824

S.W.2d 568, 573 (Tex. Crim. App. 1992).

Appellant filed a motion to suppress "any and all DNA evidence and testimony

which the State intends to offer" contending that the results were unconstitutionally

obtained as fruit of the poisonous tree. (2 CR 317-18). More specifically, Appellant

claimed that all DNA samples uploaded into CODIS must satisfy the FBI's quality

assurance standards which include using a reagent blank control. (2 CR 317).

-22- Appellant's motion stated that no reagent blank control was used by the DPS Crime

Lab in 1997 when it extracted the original DNA sample from the vaginal smear (item

14-B) and continuing through the final DNA testing in 2010 which generated the

"hit" in the CODIS database. He argued that the DNA results should never have been

loaded into CODIS because they lacked the quality required by FBI standards, Texas

law, and DPS protocol. Appellant supported his motion with a "Deviation Report"

issued by the DPS Crime Lab in June of 2010. (51 RR at DX-MS-1).

The trial court conducted a hearing on Appellant's motion during which it

heard argument from the parties (39 RR 141-46), and the State presented three

exhibits in rebuttal. (49 RR at SX-MS-1, -2, -3). At the conclusion ofthe hearing, the

trial court denied Appellant's motion. (39 RR 146). The ruling was no abuse of the

court's discretion.

The FBI standards that Appellant relied upon only apply to samples that are

extracted "on or after July 1, 2009." (51 RR at DX-MS-1). Those standards did not

apply to the extracts obtained by the DPS Crime in 1997. (39 RR 54,57). Regardless,

the DPS Crime Lab did use a reagent blank control when it obtained the original

extractions in 1997, as evidenced by the Reagent Blank Extraction Log. (49 RR at

SX-79A). The Standard Operating procedure followed by the DPS Crime Lab in 1997

went above and beyond the standards required by the FBI at the time the extract was

-23- obtained. (See 49 RR at SX-MS-2). Additionally, before the hearing, Javier Flores,

the former DPS forensic examiner who obtained the original extraction from the

vaginal smear slide in 1997, testified before the jury regarding the "checks and

balances throughout the screening, extraction, amplification, and interpretation

processes," the use of proficiency testing and certification, and the fact that the DPS

Crime Lab is nationally accredited. (E.g., 39 RR 53-56).

Appellant argues that the State failed to meet its burden because "the State's

very own witnesses explained they did not perform the reagent blanks on the old

extractions made by Javier Flores." (Appellant's Br. 55). There was testimony

following the hearing from DPS forensic examiners Cassie Carradine and Negin

Kuhlmann in which both witnesses explained that no reagent was used for additional

testing conducted on the existing extract. (E.g., 39 RR 193, 204, 227). That testing

did not violate the FBI standards relied on at the hearing. Reagent blanks were used

for any new samples that were obtained as well as when a sample ofthe "old" extract

was amplified. (39 RR 193, 209-10, 227; 49 RR at SX-79B). While this testimony

strengthens the State's argument, it is not relevant to this Court review because it was

not part of the record at the time the trial court denied Appellant's motion. Hayes v.

State, 982 S.W.2d at 482.

-24- Considered together, Appellant failed to show that the DNA results were

scientifically unreliable and warranted suppression. Because the trial court did not

abuse its discretion in denying Appellant's motion, the Court should affirm the ruling

and overrule Appellant's point of error.

STATE'S REPLY TO POINT OF ERROR 3 (ADMISSIBILITY OF EVIDENCE OF WILLINGNESS TO PLEA)

In his third point of error, Appellant argues that the trial court erred in not

allowing evidence of his willingness to enter a plea to aggravated sexual assault

because the evidence was relevant to the jury's deliberation ofthe mitigation special

issue. (Appellant's Br. 55-56). Appellant fails to adequately brief the issue and

waives it on appeal. In any event, the trial court did not prevent Appellant from

presenting mitigating evidence.

An appellate court reviews a trial court's exclusion of evidence for an abuse

of discretion. Montgomery v. State, 810 S.W.2d at 391. An abuse of discretion of

established "only when the trial judge's decision was so clearly wrong as to lie

outside that zone within which reasonable persons might disagree." Cantu v. State,

842 S.W.2d 667, 682 (Tex. Crim. App. 1992).

Prior to trial, Appellant filed an "Offer to Enter Plea of Guilty" stating that he

"hereby offers to enter a plea of 'Guilty' to the offense ofCapital Murder in exchange

-25- for a sentence of life imprisonment." (2 CR 264). The "Offer" also stated that

Appellant was willing to plead guilty to burglary ofa habitation with intent to commit

sexual assault, but wanted to enter the two pleas on separate dates so that TDCJ might

not consider them a single plea making the sentences stacked. (Id.).

Although Appellant asserts that his offer "was denied," he does not indicate by

whom or what authority. (Appellant's Br. 55). Even more importantly, Appellant cites

noting in the record establishing that he ever tried to introduce this so-called

"evidence" at punishment and was denied by the trial court. Rule 38.1 (h) ofthe Texas

Rule of Appellate Procedure requires that a brief contain "a clear and concise

argument for the contentions made, with appropriate citations to authorities and to the

record." Tex. R. App. P. 38.1 (h). Inadequately briefed issues like Appellant's may be

waived on appeal. McCarthy v. State, 65 S.W.3d 47,49 n.2 (Tex. Crim. App. 2001);

see Busby v. State, 253 S.W.3d 661,673 (Tex. Crim. App. 2008) (affirming that court

has no obligation "to construct and compose" a party's "issues, facts, and arguments

'with appropriate citations to authorities and to the record'") (citing Tex. R. App. P.

38.1(e),(f),(h)).

Yet even if Appellant could prove the trial court denied his request to present

the instant offer to plea as mitigating evidence at punishment, a defendant does not

automatically have a right to introduce self-serving documentary evidence simply

-26- because he claims it has mitigating value. If Appellant was actually remorseful for

his crimes, he could have taken the stand and testified to that fact at punishment.

Because Appellant's claim does not show error on any part by the trial court, the

Court should not hesitate to overrule this point of ercor.

STATE'S REPLY TO POINT OF ERROR 4 (FAILURE TO GRANT A MISTRIAL)

Appellant contends that the trial court erred in denying his motion for mistrial

after it was brought to the trial court's attention that a juror had sent text messages

during trial. (Appellant's Br. 56-60). Article 36.22 of the Texas Code of Criminal

Procedure provides that "No person shall be permitted to converse with a juror about

the case on trial except in the presence and by the permission ofthe court." Tex. Code

Crim. Proc. art. 36.22. "When a juror converses with an unauthorized person about

the case, injury is presumed, and a new trial may be warranted." Hughes v. State, 24

S.W.3d 883, 842 (Tex. Crim. App. 2000). No new trial was warranted here because

the trial court's actions remedied the situation and preserved the integrity of the

punishment phase proceedings. The Court should affirm the trial court's ruling as no

abuse of discretion and reject Appellant's point of error.

A trial court's denial of a mistrial is reviewed for an abuse of discretion. Webb

v. State, 232 S.W.3d 109,112 (Tex. Crim. App. 2007)."An appellate court views the

-27- evidence in the light most favorable to the trial court's ruling, considering only those

arguments before the court at the time ofthe ruling." Ocon v. State, 284 S.W.3d 880,

884 (Tex. Crim. App. 2009). The trial court's ruling must be uphold if it was within

the "zone of reasonable disagreement." Id. (citing Weadv. State, 129 S.W.3d 126,

129 (Tex. Crim. App. 2004)). An abuse ofdiscretion exists "when no reasonable view

ofthe record could support the trial court's ruling." Charles v. State, 146 S.W.3d 204,

208 (Tex. Crim. App. 2004).

While the record in this case evidences juror misconduct, it does not support

that Appellant suffered any injury as a result. During the punishment phase

proceedings, the trial court was contacted by Judith Davis, a local attorney, who had

information that juror Tim Altenhoff had communicated with a friend about the

capital case. (45 RR 6). Ms. Davis attested that Mr. Altenhoff recently sent several

text messages to Jan Ellis, a mutual friend who lived in New York City, asking Ms.

Ellis to call him so that he could tell her about the murder trial. (45 RR 6, 8). The trial

court conducted a hearing on juror misconduct during which Ms. Davis testified that

Jan Ellis contacted her about having received text messages from Mr. Altenhoff. (45 r

RR 8-9). Ms. Ellis forwarded the text messages to Ms. Davis, and they were read into

the record along with the text messages exchanged between Davis and Ellis. (45 RR

11-15). In the first message to Ms. Ellis, Mr. Altenhoff texted: "What's up? If you

-28- have a few minutes, give me a call at home and I'll tell you what I can about the

murder trial I'm on." (45 RR 12). In a second message, Mr. Altenhoff sent his phone

number. (45 RR 12-13). Ms. Ellis asked the name of the case and Mr. Altenhoff

replied: "State versus Willie Jenkins." (45 RR 13, 14). When Ms. Ellis texted "That

can't be the one from when we were in high school?," Mr. Altenhoff replied "Yep."

(45 RR 15). Ms. Ellis additionally sent a message to Davis saying that she did not

remember any discussions about the case in 1975, but "[w]e were in high school and

everybody knew about it." (45 RR 14).

Appellant moved for a mistrial based on juror Altenhoff s prohibited

communication with Jan Ellis. (45 RR 24). The State did not dispute that misconduct

occurred under Article 36.22. In order to determine whether Appellant suffered

injury, all twelve jurors were questioned about whether Mr. Altenhoff had discussed

information outside the record that concerned the case and whether any juror had any

knowledge ofhis violating any other instructions from the court. Each juror answered

the questions negatively. (45 RR 35-36, 37-39, 40-41, 41-43, 44-45, 46-48, 48-49,

50-51, 52-53, 53-54, 55-56, 56-57). Finally, Mr. Altenhoff testified that he did not

remember anything about the capital murder until he was called for jury duty and did

not recall this case being the murder that occurred while he was in high school until

Jan Ellis mentioned it in the text message. (45 RR 70-71).

-29- The trial court found that Mr. Altenhoff violated the court's instructions by

texting someone (45 RR 74); there has been no sharing of any information by Mr.

Altenhoff with the jurors (45 RR 58); that the misconduct was "not as big and major

an issue" after talking to all twelve jurors (45 RR 74); that the person who actually

remembered about the murder being from around the time of high school was Jan

Ellis, not Altenhoff (45 RR 74, 76); and that Mr. Altenhoff s testimony was credible

in responding that he did not remember the murder (45 RR 76). The court therefore

overruled Appellant's motion for mistrial. (45 RR 76).

This Court has cautioned that a mistrial is an extreme remedy that should be

granted "only when residual prejudice remains" and after less dramatic alternatives

are explored. Ocon v. State, 284 S.W.3d at 884-85. Consistent with that holding, the

trial court remedied the juror misconduct by striking Mr. Altenhoff, replacing him

with the alternate juror, questioning all the jurors about potential harm, and

instructing the jury to refrain from any communications and to follow to follow the

rules imposed on them. Because Appellant cannot show that the denial of a mistrial

was an abuse of discretion, the Court should overrule this point of error.

STATE'S REPLY TO POINT OF ERROR 5 (CUMULATIVE ERROR)

Appellant asserts that when his four preceding claims of insufficiency of the

-30- evidence and trial-court error are viewed together, the combined effect deprived him

of a fundamentally fair trial. (Appellant's Br. 61-62). Appellant cannot avail himself

of the cumulative error doctrine.

This Court has recognized that the cumulative effect of several errors can, in

the aggregate, constitute reversible enor even though no single instance of enor

would suffice. Chamberlain v. State, 998 S.W.2d 230, 238 (Tex. Crim. App. 1999).

For the doctrine to apply, the alleged enors must actually constitute enor. Gamboa

v. State, 296 S.W.3d 574, 585 (Tex. Crim. App. 2009). Non-enors cannot become

enor cumulatively. See id.

Appellant's first four points of enor are all without merit, as set forth in the

State's reply to each claim above. Because there is no individual enor, there is

nothing that could interact to have a cumulative effect. The Court should hold that

this claim is meritless and overrule Appellant's fifth point of enor.

STATE'S REPLY TO POINT OF ERROR 6 ("10-12" RULE AND NO INSTRUCTION ON EFFECT OF HOLD-OUT JUROR)

Appellant raises seven claims challenging the constitutionality of the trial

court's jury instructions on the "10-12" Rule and the prohibition against informing

-31- thejury ofthe effect ofa single hold-outjuror. (Appellant's Br. 62-72)..6 He maintains

that the trial court's instructions, or lack thereof in the case of the hold-out juror,

violated his Sixth, Eighth, and Fourteenth Amendment rights. To the contrary, the

trial court did not en because this Court has previously rejected the claims cunently

advanced by Appellant.

The trial court properly instructed the jury, in accordance with Tex. Code Crim.

Proc. art. 37.0711, § 3(d)(l)-(2), that in deciding whether Appellant deliberately

caused the death of Sheryl Ann Nonis, "You may not answer Special Issue Number

One 'Yes' unless you agree unanimously" and "You may not answer [the issue] 'No'

unless ten (10) or more jurors agree." (2 CR 331). The jury received a similar

instruction regarding its deliberation of the second special issue on future

dangerousness. (2 CR 331-32). The jury was further instructed, pursuant to article

37.0711, § 3(f)(l)-(2), that if it reached the final special issue on mitigation, "You

may not answer Special Issue Number Three 'No' unless you agree unanimously" and

"You may not answer [the issue] 'Yes' unless ten (10) or more jurors agree." (2 CR

332). The trial court did not inform the jury of the effect of a failure of the jury to

6 Appellant presented his arguments in a "Motion to Declare the ' 10-12 Rule' Unconstitutional," which was denied. (1 CR 32-56; 2 CR 261). He also filed a "Motion for Jury Instruction" on the failure ofjurors to agree on answers to the special issues. (1 CR 135- 38). The request was presumably denied since no instruction was provided.

-32- agree on a special issue. Tex. Code Crim. Proc. art. 37.0711, § 3(i).

Appellant asserts that the trial court's instructions were unconstitutional,

although he acknowledges his claims have been rejected. (Appellant's Br. 63 & n. 5)

(citing Lawton v. State, 913 S.W.2d 542, 558 (Tex. Crim. App. 1995); Lagrone v.

State, 942 S.W.2d 602, 620 (Tex. Crim. App. 1997)). Appellant offers no reason for

the Court should reconsider its prior decisions. Nor should the Court do so.

In Point ofEnor 6(a), Appellant asserts that the 10-12 Rule violates the Eighth

Amendment's need for heightened reliability. (Appellant's Br. 64-65) (citing

Caldwell v Mississippi, All U.S. 320, 323 (1985)). This Court has already decided

the issue adversely to Appellant. Prystash v. State, 3 S.W.3d 522,536-37 (Tex. Crim.

App. 1999) (explaining that one ofthe underlying values ofthe Caldwell decision "is

to ensure the proper level ofjuror deliberation," and that the 10-12 Rule "serves this

value by not giving the jury the consequences ofa nonverdict, while at the same time

it ensures that the death penalty will not be imposed without the unanimous consent

ofthe jury"); accord Davis v. State, 782 S.W.2d 211,221 -22 (Tex. Crim. App. 1989)

(rejecting Due Process claim based on failure to inform the jury about the effect of

a failure to agree on a special issue).

In Point of Enor 6(b), Appellant alleges that the trial court's jury instructions

violate the constitutional principles in set forth in Mills v. Maryland, 486 U.S. 367

-33- (1988). (Appellant's Br. 65-66). This Court has distinguished Mills and decided the

issue adversely to Appellant. E.g., Williams v. State, 301 S.W.3d 675, 694 (Tex.

Crim. App. 2009); Busby v. State, 253 S.W.3d at 667; Russeau v. State, 171 S.W.3d

871, 886 (Tex. Crim. App. 2005); Lawton v. State, 913 S.W.2d at 558-59.

In Point of Enor 6(c), Apellant argues that the 10-12 Rule denies the right to

a fair and impartial trial because jurors might have misconceptions about the law and

are forced to guess about the effect of a deadlock. (Appellant's Br. 66-68) (citing

Lockhart v. McCree, 476 U.S. 162 (1986)). Appellant's speculation is no ground for

enor. This Court has "consistently held that '[t]here is no constitutional prohibition

to concealing from the jurors the consequences oftheir deliberations, so long as they

are not misled into believing that ultimate responsibility for the verdict rests

elsewhere.'" Threadgill v. State, 146 S.W.3d 654, 673 (Tex. Crim. App. 2004)

(quoting Prystash v. State, 3 S.W.3d at 532).

In Point of Enor 6(d), Appellant contends that the 10-12 Rule prevents a

defendant from receiving effective assistance of counsel because it disallows

"informing the jury of the true state of the law." (Appellant's Br. 68) (citing Burley

v. Cabana, 818 F.2d 414, 418 (5th Cir. 1987)). In Burley, the Fifth Circuit Court of

Appeals held that trial counsel was ineffective under Strickland because counsel

failed to conect the trial court's enoneous statement that it believed a life sentence

-34- was mandatory. 818 F.2d at 417-18. That situation did not occur here. Appellant does

not identify any inconect or enoneous statement in the jury charge for which counsel

was constitutionally ineffective in failing to call to the trial court's attention. If

Appellant maintains that the "true state of the law" means informing the jury about

the consequence of the jury's potential inability to answer a special issue, his

argument fails. The Court has rejected the claim that the 10-12 Rule affirmatively

disallows the trial court or its officers from curing any "misleading effect" and held

that jurors are not misled by the instructions. Hathorn v. State, 848 S.W.2d 101,124-

25 (Tex. Crim. App. 1992)(citing Draughon v. State, 831 S.W.2d 331, 337 (Tex.

Crim. App. 1992)). Again, there is '"no constitutional prohibition to concealing from

the jurors the consequences oftheir deliberations[.]'" Threadgillv. State, 146 S.W.3d

at 673 (quoting Prystash v. State, 3 S.W.3d at 532).

In Point of Enor 6(e), Appellant contends that the 10-12 Rule has a coercive

effect on the jury, thus rendering the trial court's instructions unconstitutional.

(Appellant's Br. 69) (citing Jenkins v. United States, 380 U.S. 445,446 (1965)). This

Court has previously decided the issue adversely to Appellant. Estrada v. State, 313

S.W.3d274,306 (Tex. Crim. App. 2010) (citingEscamillav. State, 143 S.W.3d 814,

828 (Tex. Crim. App. 2004)).

-35- In Point of Enor 6(f), Appellant argues that the 10-12 Rule violates his right

to Equal Protection because it "leaves jurors in the dark" about the fact that their

failure to unanimously agree on an answer to the special issues results in a life

sentence. (Appellant's Br. 70). The Court has rejected Fourteenth Amendment claims

in this very context. Gonzales v. State, 353 S.W. 3d 826, 837 (Tex. Crim. App. 2011);

Williams v. State, 301 S.W.3d at 694; Druery v. State, 225 S.W. 3d 491, 509 (Tex.

Crim. App. 2007).

Finally, in Point ofEnor 6(g), Appellant contends the 10-12 Rule deprived the

jury of "an effective vehicle for expressing its reasoned moral response to the

evidence it heard." (Appellant's Br. 71) (internal quotations omitted). However,

Appellant does not identify any evidence that was beyond the scope of the three

statutorily-mandated special issues. Appellant also contends that the State obtained

a death sentence "while concealing a mechanism which might have resulted in a

sentence of life[.]" (Appellant's Br. 71-72) (citing Simmons v. South Carolina, 512

U.S. 154, 169 (1994)). Simmons held that in a capital case "where the defendant's

future dangerousness is at issue, and state law prohibits the defendant's release on

parole, due process requires that the sentencing jury be informed that the defendant

is parole ineligible." 512 U.S. at 156. Unlike Simmons, there was no information

relevant to sentencing that was concealed from Appellant's jury. Appellant appears

-36- to be contending that the trial court ened by not instructing the jury that each juror

had the power to prevent assessment of the death penalty by blocking a unanimous

verdict for the State. However, he has no constitutional or statutory right to such an

instruction and the Court has rejected the claim. Perry v. State, 158 S.W.3d 438,449

(Tex. Crim. App. 2004) (citing Cathey v. State, 992 S.W.2d 460, 466 (Tex. Crim.

App. 1999)). Considered together, Appellant's arguments offer no basis for the Court

to consider revisiting its well established precedent. The Court should overrule

Appellant's sixth point of enor.

STATE'S REPLY TO POINT OF ERROR 7 (NO INSTRUCTIONS ON VICTIM IMPACT EVIDENCE)

Appellant contends that the trial court's failure to instruct the jury regarding

victim impact evidence violated his Eighth and Fourteenth Amendments ofthe United

States Constitution. (Appellant's Br. 73-79). The complained-of, omitted instructions

are (1) that the jury should have been instructed that its consideration of victim

impact evidence should not be conducted in connection with the future-

dangerousness special issue, (2) that the jury's consideration of victim impact

evidence does not relieve the State of its burden to prove the "future dangerousness"

issue beyond a reasonable doubt; (3) that the jury must disregard victim impact

evidence that was not shown to be within the knowledge or reasonable expectation

-37- of the defendant; and (4) that jurors may not make a comparative worth analysis of

the value of the victims to their families and the community compared to the

defendant or other members of society. (Id.).

In reviewing a claim of jury-charge enor, an appellate court first determines

whether enor occuned. See Wooten v. State, 400 S.W.3d 601, 606 (Tex. Crim. App.

2013). Ifthe defendant did object at trial, then he will obtain reliefifthe record shows

that he suffered "some harm." Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim.

App. 1985). Ifhe did not object, then he must show that the enor was "fundamental"

and that he suffered "egregious harm." Id.

Assuming for the sake of argument that Appellant was entitled to the above

instructions, he never requested them from the trial court. He also has failed to

identify any statutory provision requiring that the above-listed instructions be

provided. Without the request for an instruction, Appellant would be entitled to relief

only if the record showed that he suffered egregious harm. Almanza v. State, 686

S.W.2d at 171. He cannot make that showing.

As an initial matter, Appellant points to no specific testimony that is victim

impact evidence. He states, at best, that "[considerable victim character and victim

impactevidencewas introducedat [his] trial,mostnotablyfromthe deceased's sisters

and also that her parents were now deceased, and died not knowing who killed their

-38- daughter." (Appellant's Br. 74) (citing 37 RR 84; 38 RR 132 et seq.). The first cite

is to a page of testimony from Sheryl's older sister (37 RR 84), while the second cite

is to the entirety of testimony from Corporal Dunn (38 RR 132 et seq.). Without

more, the Court has no reason to find that there is any victim impact testimony on

which the trial court might have offered an instruction.

The Court also has no reason to find that jurors were urged to make any kind

ofcomparative worth analysis. Appellant acknowledges in his briefthat the State "did

not explicitly" argue for such a comparison. (Appellant's Br. 78-79). In such instance,

there would be no need for the trial court to offer any instruction to jurors against

making a comparison.

In any event, the Court has held on more than one occasion that the trial court

does not en in failing to submit the very instructions that Appellant now contends

should have been submitted on appeal. Leza v. State, 351 S.W.3d 344, 361 & n. 71

(Tex. Crim. App. 2011) (citing Mays v. State, 318 S.W.3d 368, 391 & n. 85 (Tex.

Crim. App. 2010); Saldano v. State,131S.W.3d at 105-07). Because Appellant offers

no reason to reconsider established precedent, the Court should overrule his seventh

point of enor.

-39- STATE'S REPLY TO POINTS OF ERROR 8-11 (NO INSTRUCTION DEFINING TERMS)

In his eighth, ninth, and eleventh points ofenor, Appellant complains that the

trial court failed to define terms "probability," "criminal acts of violence," and

"continuing threat to society," as used in the special issue on future dangerousness.

(Appellant's Br. 79-85, 89-91). He asserts that because the terms were not defined,

the special issue was "vague and overbroad," possibly resulting in the arbitrary and

capricious imposition of a death sentence in violation of the Eighth and Fourteenth

Amendments. In his tenth point ofenor, Appellant argues that the trial court's failure

to define the term "militates" violated his First, Eighth, and Fourteenth Amendment

rights by allowing the jury to consider "constitutionally protected personal

characteristics" such as age, race, sex, national origin, religion, political views or

sexual orientation as factors supporting a death sentence. (Appellant's Br. 85-89).

Appellant filed a "Motion to Quash Indictment" which alleged that the Texas

capital sentencing statute is "vague and overbroad" for failing to define

"probability," "criminal acts of violence," and "continuing threat to society." (1 CR

26-27). The trial court denied the motion. (2 CR 260). Appellant did not request that

the term "militates" be defined. Nor did he object to the punishment charge on any

basis. (47 RR 130-131). As a result, Appellant must show that the trial court's

-40- instructions were enoneous and that he suffered some harm for his first three claims.

Almanza v. State, 686 S.W.2d at 171. For his tenth point of enor regarding

"militates," he must show fundamental enor and egregious harm. Id. He cannot make

either showing.

The trial court properly instructed the jury that in deliberating the special

issues, "You must consider all the evidence of the guilt or innocence stage and the

punishment stage, including but not limited to evidence of the Defendant's

background and character or circumstance of the offense that militates for or

mitigatesagainst the imposition ofthe death penalty." (2 CR 330-31,331) (emphasis

added). The jury returned an affirmative answer to Special Issue Number Two which

asked "Do you find from the evidence beyond a reasonable doubt that there is a

probability that the Defendant, Willie Roy Jenkins, would commit criminal acts of

violencethat would constitute a continuing threat tosociety!" (2 CR 337) (emphasis

added). The terms "probability," "criminal acts of violence," "militates," and

"continuing threat to society" are not statutorily defined, and no definition was

provided by the trial court. (2 CR 330-35).

There is no enor in the trial court's refusing to define any term identified by

Appellant. The Court has rejected claims of constitutional enor, explaining that the

terms need no definition because jurors are presumed to understand their commonly

-41- accepted meanings. See, e.g., Leza v. State, 351 S.W.3d at 362 (rejecting claim of

constitutional enor in failing to define the terms "militates," "criminal acts of

violence," and "probability"); Coble v. State, 330 S.W.3d 253,297 (Tex. Crim. App.

2010) (future dangerousness special issue is not unconstitutional because the terms

"probability," "criminal acts ofviolence," and "society" are not defined); Gardnerv.

State, 306 S.W.3d 274, 302-03 (Tex. Crim. App. 2009) (no enor in trial court's

refusing to define the terms "probability," "criminal acts ofviolence," "militates," and

"continuing threat to society" because "jury should give them their commonly

accepted meanings"); Feldman v. State, 71 S.W.3d 738, 757 (Tex. Crim. App. 2002)

(no definition needed for "probability," "criminal acts ofviolence," and "continuing

threat to society"); Laddv. State, 3 S.W.3d 547, 572-73 (Tex. Crim. App. 1999) (no

definition needed for "criminal acts of violence," "probability," "continuing threat"

and "society"); Camacho v. State, 864 S.W.2d 524, 536 (Tex. Crim. App. 1993) (no

definition needed for "criminal acts of violence," "probability," and "society").

Appellant acknowledges that the Court has previously resolved each of his

claim adversely to his position. (Appellant's Br. 80, 83, 90). Because Appellant

provides no reason for the Court to consider reexamining its prior holdings, the Court

should overrule Appellant's eighth, ninth, tenth, and eleventh points of enor.

-42- STATE'S REPLY TO POINT OF ERROR 12 (NO INSTRUCTION LIMITING SCOPE OF MILITATING EVIDENCE)

Appellant maintains that the trial court violated the Eighth and Fourteenth

Amendments of the United States Constitution by failing to instruct the jury so as to

limit the scope of militating evidence to that which might increase a defendant's

moral blameworthiness. (Appellant's Br. 92-94). He contends that unless the scope

ofmilitating evidence is limited in this manner, jurors might give weight to vague and

overbroad factors beyond a defendant's control. Because Appellant failed to seek an

instruction from the trial court and does not argue that he has suffered egregious harm

as required under Almanza, 686 S.W.2d at 171, the Court should reject the claim.

The trial court conectly instructed the jury, in accordance with Tex. Code

Crim. Proc. art. 37.0711, § 2(b)(l)-(2), that in deliberating the first two special issues,

jurors "shall consider all the evidence of the guilt or innocence stage and the

punishment stage, including but not limited to evidence of the Defendant's

background and character or circumstance of the offense that militates for or

mitigates against the imposition of the death penalty." (2 CR 330-331).

Appellant contends that an instruction limiting the scope ofmilitating evidence

was constitutionally required, but Appellant never requested such an instruction in

-43- the trial court.7 Nor did he object to the punishment charge before it was submitted

to the jury. (47 RR 130-31). To preserve an issue for appeal, a party must make a

timely, specific objection or motion in the trial court that states the grounds for the

desired ruling with sufficient specificity to make the trial court aware of the

complaint. Tex. R. App. P. 33.1(a)(1)(A). Appellant failed to preserve enor in this

instance and, on appeal, must demonstrate fundamental enor and egregious harm.

Almanza v. State, 686 S.W.2d at 171. He cannot make either showing.

There is no constitutional or legislative requirement for an instruction that

limits the scope of militating evidence to that which a jury might consider as

increasing a defendant's moral culpability. This Court has rejected arguments like

Appellant's, explaining that the "statutorily mandated language requires the jury to

look at all the evidence and not just evidence that a juror might find mitigating."

Gardner v. State, 306 S.W.3d at 303 & n.92 (citing Luna v. State, 268 S.W.3d 594,

7 Appellant states that he "raised various objections" to the definition of mitigating evidence as being that which might reduce a defendant's moral blameworthiness. (Appellant's Br. 94) (citing 2 CR 130). Page 130 of the Clerk's Record is contained in Volume 1. The cited page has nothing to do with Appellant's objections, but rather is a "Defendant's Motion for Discovery ofExperts." (1 CR 130). Appellant did, however, object to the definition of mitigating evidence in his "Motion Requesting the Court to Find Tex. Code Crim. Proc. Art. 37.0711, Section 3(F)(4) to be Unconstitutional." (1 CR 57-61). There, he claimed the definition "unconstitutionally narrows the jury's discretion in sentencing to factors that concern only moral blameworthiness." (1 CR 58). Yet that contention is the opposite of Appellant's current argument—that the jury's deliberations of the first two special issues should be limited to considering evidence of moral blameworthiness.

-44- 610 (Tex. Crim. App. 2008); Scheanette v, State, 144 S.W.3d 503,507-08 (Tex. Crim.

App. 2004)). And in Russeau v. State, 291 S.W.3d 426 (Tex. Crim. App. 2009), the

Court held:

Appellant's argument has no merit. First, the jury, in its deliberations on the first two special issues, was not limited to evidence 'which a juror might regard as increasing [the] defendant's moral blameworthiness.' The jury could properly consider any of the evidence submitted at trial that was relevant to the two special issues. Second, appellant did not ask the trial court for the instruction that he now claims is constitutionally required, and nothing in the record suggests that he suffered any harm, let alone egregious harm, from the lack of such an instruction.

Id. at 435-36 (citing Almanza, 686 S.W.2d at 171). Appellant does not acknowledge

the Court's controlling precedent, nor attempt to distinguish it from the facts in this

case. The Court should therefore overrule Appellant's twelfth point of enor.

STATE'S REPLY TO POINT OF ERROR 13 (NO INSTRUCTION THAT FINDING OF GUILT DOES NOT FORECLOSE CONSIDERATION OF MITIGATING EVIDENCE)

Appellant alleges that the trial court violated the Eighth and Fourteenth

Amendments ofthe United States Constitution by failing to instruct the jury that their

finding of guilt in the first phase of the trial did not foreclose consideration of

evidence, which they believed tended to reduce the moral blameworthiness of the

defendant. (Appellant's Br. 94-96). This Court has previously decided the issue

adversely to Appellant. E.g., Russeau v. State, 291 S.W.3d at 436.

-45- For purposes of deliberating the special issues on deliberateness and future

dangerousness, the trial court's instructions were sufficient to convey to the jury that

a finding of guilt in the first phase of the trial did not foreclose consideration of

evidence which tended to reduce the moral blameworthiness of Appellant. The jury

was instructed that in deliberating the special issues, "You must consider all the

evidence of the guilt or innocence stage and the punishment stage, including but not

limited to evidence of the Defendant's background and character or circumstance of

the offense that militates for or mitigates against the imposition ofthe death penalty."

(2 CR 330-31,331). In addition, the jury was instructed, "In answering Special Issue

Number Three you shall consider mitigating evidence to be evidence that a juror

might regard as reducing the defendant's moral blameworthiness." (2 CR 332).

Prior to trial, Appellant filed a "Motion to Hold Unconstitutional Tex. Code

Crim. Proc. Art. 37.0711, Sec. 3(E) And (F) - Failure to Require Mitigation Be

Considered," which was denied. (1 CR 14-16; 2 CR 256). The motion appears to

include the arguments cunently made by Appellant.8 Because Appellant raised the

claim below, he must now show enor and "some harm." Almanza v. State, 686

8 Appellant incorrectly states thatthis issue was preserved inhis"written motion to declare article 37.0711 (3)(f)(4) unconstitutional pretrial (2 CR 21)." (Appellant's Br. 95 n.12). Page 21 is located in Volume 1 of the Clerk's Record. Neither the motion at page 21 nor the actual motion regarding article 37.0711, § 3(f)(4), raise the claim currently made by Appellant. (Compare Appellant's Br. 96-98 with 1 CR 21-23, 57-62).

-46- S.W.2datl71.

That showing is not met where, as here, the trial court properly instructedjurors

to consider all ofthe evidence from both stages oftrial in determining the answers to

the special issues at punishment. (2 CR 330-31,331). Jurors are presumed to follow

the trial court's instructions in the manner presented. Colburn v. State, 966 S.W. 2d

511,520 (Tex Crim. App. 1998) (citing Williams v. State, 937 S.W.2d479,490 (Tex.

Crim. App. 1996)). The presumption is rebuttable, but Appellant has pointed to no

evidence in rebuttal. Thus, while the trial court did not provide the type ofinstruction

urged by Appellant, he cannot show he was harmed by the omission.

Additionally, no constitutional enor is shown where the legal claim has already

been decided adversely to Appellant. Russeau v. State, 291 S.W.3d at 436; see

Escamilla v. State, 143 S.W.3d at 828-29 (rejecting claim that Texas death-penalty

law is unconstitutional because it does not "mandate consideration of mitigating

evidence") (citing McFarland v. State, 928 S.W.2d 482, 497-98 (Tex. Crim. App.

1996) ("There is no per se evidence that a juror must view as having definitive

mitigating effect.")). The Court should overrule this point of enor.

-47- STATE'S REPLY TO POINT OF ERROR 14 (NO PRESUMPTION IN FAVOR OF DEATH AND NO REQUIREMENT TO CONSIDER MITIGATION INDEPENDENTLY)

Appellant contends the trial court violated the Eighth Amendment by failing

to instruct the jury that there is no presumption in favor of death, even if they found

him to be a "future danger" in answer to Special Issue Number Two, and that Special

Issue Number Three, regarding mitigating circumstances, is to be taken up and

considered independently, without regard to the jury's finding on the future

dangerousness issue. (Appellant's Br. 92-98). Appellant did not request that the trial

court instruct the jury in the manner urged on appeal. Even ifAppellant had made the

request, it would have been to no avail. This Court has rejected claims identical to

Appellant's and, therefore, should overrule Appellant's fourteenth point of enor.

The trial court was not required, for purposes of the Eighth Amendment

prohibition of cruel and unusual punishment, to instruct the jury in the manner now

urged by Appellant. The jury was instead properly instructed that in deliberating the

special issues, "You must consider all the evidence ofthe guilt or innocence stage and

the punishment stage, including but not limited to evidence of the Defendant's

background and character or circumstance of the offense that militates for or

mitigates against the imposition ofthe death penalty." (2 CR 330-331,331). The jury

was additionally instructed, in accordance with Tex. Code Crim. Proc. art. 37.0711,

-48- § 3(e), that if it answered the special sentencing issues on deliberateness and future

dangerousness in the affirmative, "then and only then" would the jury answer Special

Issue Number Three on mitigation. (2 CR 332).

There was no request by Appellant for the trial court to instruct the jury in the

manner now urged on appeal.9 Nor did Appellant object to the punishment charge.

(47 RR 130-31). Because the jury-charge claim was not raised at trial, Appellant's

sentence may only be reversed if he establishes fundamental enor and egregious

harm. Almanza v. State, 686 S.W.2d at 171. He cannot make this showing.

This Court has held that "[n]othing in our law required the trial court to further

instruct the jury that there was 'no presumption in favor of death.' Russeau v. State,

291 S.W.3d at 436 (rejecting claim based on instructions given under Tex. Code

Crim. Proc. art. 37.071, § 2(d)(1)); Gamboa v. State, 296 S.W.3d at 585-86 & n.36

(no enor in failing to instruct jury there is no presumption in favor of death) (citing

Saldano v. State, 131 S.W.3d 77, 105 (Tex. Crim. App. 2007)).

9 Appellant states that this issue was raised "by written objection to the statute, to declare it unconstitutional due to the lack ofthis charge, which was filed before trial (2 CR 14) and denied by the court (14 RR 72-73)." (Appellant's Br. 97 n.13). Page 14 is located in Volume 1 of the Clerk's Record and is a motion regarding the "Failure to Require Mitigation be Considered." (1 CR 14). The motion does not include the requested jury instructions made the basis of Appellant's claim on appeal. (Compare id. with Appellant's Br. 96-98).

-49- The Court has additionally rejected the claim that a jury should be instructed

to consider the mitigation issue independently and without regard to the future

dangerousness issue. Russeau v. State, 291 S.W.3d at 436; see Martinez v. State, 924

S.W.2d 693, 698 (Tex. Crim. App. 1996) (rejecting claim that trial court violated the

Due Process Clause by refusing to grant request to submit the mitigation special issue

to the jury only in the event the jury answered the special issue on future

dangerousness in the affirmative). Appellant provides no reason for the Court to

reconsider its prior precedent. The Court should therefore deny Appellant's claims

and overrule his fourteenth point of enor.

STATE'S REPLY TO POINT OF ERROR 15 (NO VEHICLE FOR JURY TO RETURN A VERDICT OF LIFE IMPRISONMENT)

In his fifteenth point of enor, Appellant complains that the trial court failed to

instruct the jury that it could return a verdict of life imprisonment even if the jurors

conclude that their honest answers to the special issues would require the trial judge

to sentence Appellant to death. (Appellant's Br. 98-100). Appellant failed to raise this

specific claim to the trial court and did not object to the punishment charge. (47 RR

130-131).10 Because enor was not preserved, Tex. R. App. P. 33.1(a)(1)(A),

10 Appellant states thatthis issue "wasraised bya written objection to the statute due to the court's charge in this regard, which was filed before trial (2 CR 129) and denied by the court (14 RR 71-72)." (Appellant's Br. 98 n. 14). Page 129 of the Clerk's Record is

-50- Appellant must show fundamental enor and egregious harm. Almanza v. State, 686

S.W.2d at 171. On the record in this case, that showing cannot be met.

The trial court properly instructed the jury that it was required to answer the

special sentencing issues based on an honest evaluation of the mitigating and

aggravating nature ofthe evidence rather than on public sentiment, public feeling, or

on a discretionary act ofmercy. Specifically, the jury was instructed that in answering

the special sentencing issues, it was "not to be swayed by mere sentiment, conjecture,

passion, sympathy, prejudice, public opinion, or public feeling in considering all of

the evidence[.]" (2 CR 331, 332). The jury was provided a vehicle—the mitigation

special issue—by which an affirmative answer would result in a life sentence being

imposed rather than a death sentence. (2 CR 338).

Appellant contends that jurors should have unfettered sentencing discretion to

impose a life sentence even though the law and the facts, as viewed by each and every

juror, would require a sentence of death. He argues that the Eighth Amendment

requires the trial court to empower the jury with a vehicle "capable of giving effect

located in Volume 1 and is the signature page of the defense's "Motion for Production of Impeachment Evidence." (1 CR 126-129). Neither motion that was denied by the trial court during the pre-trial hearing concerns Appellant's instant claim. (14 RR 71-72). While Appellant did file various motions challenging the constitutionality of Texas's capital sentencing statute, no motion appears to include the claim currently raised by Appellant regarding the jury's entitlement to a vehicle by which to return a life verdict. (See 1 CR 14- 16, 17-23, 21-23, 26-31, 32-56, 57-62, 63-86, 135-138, 139-146).

-51- to the evidence." (Appellant's Br. 100) (citing Smith v. Texas, 543 U.S. 37, 45

(2004)).n However, he cites no precedent for his proposition. In rejecting an Eighth

Amendment claim identical to Appellant's, the Court noted that the Supreme Court

"has held that such unbridled discretion is not required by the constitution." Mays v.

State, 318 S.W.3d 368, 397 & n.120 (Tex. Crim. App. 2010) (citing Johnson v.

Texas, 509 U.S. 350,362-63 (1993)). Appellant also fails to show harm because, just

like Mays, he never demonstrates that any theory of obtaining a life sentence falls

outside the scope of the statutorily-mandated special issues. Id.

The Court has repeatedly rejected Eighth Amendment claims like Appellant's,

and there is no reason for the Court to reconsider its established precedent. Mays v

State, 318 S.W.3d at 397; Russeau v. State, 291 S.W.3d at 436 ("The trial court's

instructions meet the requirements of Article 37.071, which, in turn, met the

requirements of the Eighth Amendment."); see Saldano v. State, 232 S.W.3d at 107-

08 (rejecting claim that punishment charge "fails to provide a rational process to

permit a discretionary grant ofmercy based on mitigating circumstances"). The Court

should therefore overrule Appellant's fifteenth point of enor.

11 The Supreme Court's decision in Smith addressed the constitutionality of a non-statutory, "nullification" special issue that effectively instructed the jury to change one of its "yes" answers to one ofthe statutory special issues to a "no" answer if the jury believed that mitigating circumstances existed warranting a sentence less than death. See Smith, 543 U.S. at 38-39, 45-49. No such instruction was provided in Appellant's case.

-52- STATE'S REPLY TO POINT OF ERROR 16 (FAILURE TO QUASH INDICTMENT - APPRENDI v. NEW JERSEY)

A Hays County grand jury indicted Appellant for capital murder, a capital

felony for which the punishment is either death or imprisonment for life. Tex. Penal

Code § 12.31(a); id., § 19.03(a), (b). The fact that the State was intending to seek the

death penalty was not alleged in the indictment, but the State did file a "State's Notice

ofIntent to Seek the Death Penalty" on March 25,2011. (1 CR 4,12). The statutorily-

mandated special sentencing issues on deliberateness, future dangerousness, and

mitigation were also not alleged in the indictment. Appellant moved to quash the

indictment, alleging that it was unconstitutional under Apprendi v. New Jersey, 530

U.S. 466 (2000), for failing to allege statutory facts required to impose a death

sentence. (1 CR 26-30). The trial court denied the motion. (2 CR 260).

Appellant now raises five claims based on Apprendi and its progeny.

(Appellant's Br. 100-10). The majority of Appellant's complaints were never

presented to the trial court, including his claim based on Texas Constitutional law,

his claim challenging the lack of grand jury involvement in the State's decision to

seek the death penalty, and his claim that the State has the burden of proving a

negative answerto the mitigation issue. (Appellant's Br. 103-09).nFor those claims,

12 Appellant filed a "Motion to Quash Indictment On Grounds That Tex. Code Crim. Proc. Art. 31.0711(3) Is Unconstitutional." (1 CR26-30). Paragraph 16 alleged: "The

-53- Appellant has waived any purported enor. See Tex. R. App. P. 33.1(a). Yet even if

the claims had been preserved for appellate review, Appellant acknowledges there is

"adverse authority from this Court" rejecting his arguments. (Appellant's Br. 110)

(citing, e.g., Woods v. State, 152 S.W.3d 105, 121 (Tex. Crim. App. 2004); Rayford

v. State, 125 S.W.3d 521, 533 (Tex. Crim. App. 2003)). The Court should therefore

overrule Appellant's sixteenth point of enor.

Appellant cannot show that the trial court ened in its ruling because this Court

has repeatedly rejected claims of constitutional enor arising under Apprendi. For

example, in Point of Enor 16(a), Appellant alleges that the indictment was

fundamentally defective because it did not contain a grand jury charge on the

sentencing phase special issues. (Appellant's Br. 101-03). Although everything

necessary to be proven in the guilt-innocence phase of trial must be alleged in the

indictment, the same requirement does not apply to the special sentencing issues. This

Court has held on numerous occasions that Apprendi does not require the State to

allege the special issues in the indictment. Russeau v. State, 111 S.W. 3d at 885-86;

Rayford v. State, 125 S.W.3d at 533; Castillo v. State, 739 S.W.2d 280, 299 (Tex.

statute does not require the indictment to allege the special issues, i.e., the 'facts' relied upon to enhance the capital sentence from life to death, contrary to the U. S. Supreme Court's holding inApprendi[.]"(1 CR 30). He also referenced Apprendiin a "Motion to Preclude the Death Penalty as a Sentencing Option," which was denied. (1 CR 144-45; 2 CR 263). These appear to be the only arguments made by Appellant regarding Apprendi.

-54- Crim. App. 1987); Sharp v. State, 707 S.W.2d 611, 624-25 (Tex. Crim. App. 1986).

In Point of Enor 16(b), Appellant argues that his rights under the Texas

Constitution were violated because he was denied due course of law and the

consequent notice and opportunity to prepare as a result ofthe State's failure to plead

the special issues and supporting facts in the indictment. (Appellant's Br. 103) (citing

Tex. Const, art. I, §§ 3,10 & 19). The Texas constitutional provisions cited concern

a citizen's right to notice of charges against him and that a person shall not be held

to answer for a criminal offense unless indicted by a grand jury. Those provisions do

not govern Appellant's specific claim. Appellant cites no constitutional or statutory

provision requiring that the punishment-phase special issues be pled in the indictment

or that the State must include all the facts supporting its decision seeking the death

penalty.13 While Appellant maintains that he had no notice, the special issues are

statutorily-mandated. Appellant was given sufficient notice of their potential

applicability when he was charged with capital murder in the indictment. (1 CR 4).

Appellant was also given specific notice outside the indictment through a filed

13 Appellant's assertion that all facts supporting the decision seeking the death penalty must necessarily be included in the indictment is both factually and legally to no avail. When the State indicts a defendant for capital murder, that does not automatically mean that a death sentence will be sought. And there is certainly no requirement for the State to concurrently file notice of its intent to seek the death penalty at the same time a defendant is indicted. Indeed, as in this case, Appellant was indicted on November 19, 2010, and the State filed notice of its intent on March 25, 2011. (1 CR 4, 12).

-55- pleading served on him that established the State intended to seek a death sentence.

(1 CR 12). Because the indictment does not violate any Texas Constitutional

safeguard, the Court should deny Appellant's claim.

In Point of Enor 16(c), Appellant cites Apprendi for his proposition that the

Texas capital sentencing scheme is unconstitutional by failing to assign a burden of

proof to the State to disprove mitigating evidence. (Appellant's Br. 104-07). "This

Court has consistently held that, under Texas statute, the State does not bear the

burden of proof on the mitigation special issue and that the statute setting out the

issue and the instructions is constitutional." Mays v. State, 318 S.W.3d 368,397 (Tex.

Crim. App. 2010) (citing Whitaker v. State, 286 S.W.3d 355, 370 (Tex. Crim. App.

2009); Busby v. State, 253 S.W.3d at 667); Roberts v. State, 110 S.W.3d 521, 534-35

(Tex. Crim. App. 2007) (rejecting claim that the Apprendi line of cases requires a

burden of proof with the mitigation-special issue) (citing Perry v. State, 158 S.W.3d

at 446-48).

In Point of Enor 16(d), Appellant argues that the trial court should have

quashed the indictment on the ground that there was no grand jury involvement in the

decision to pursue the death penalty against him. (Appellant's Br. 107-09). Again,

this Court has rejected the identical argument. Leza v. State, 351 S.W.3d at 354

(citing Roberts v. State, 220 S.W.3d at 535 & n. 1).

-56- Finally, in Point of Enor 6(e), Appellant argues that he was denied his Sixth

Amendment right to trial by jury because the indictment did not allege the special

issues and the supporting facts necessary to impose a death sentence. (Appellant's Br.

109). It is unclear how Appellant believes he was denied a right to trial by jury. In

Apprendi, the Supreme Court held that "[t]he Fourteenth Amendment right to due

process and the Sixth Amendment right to trial by jury, taken together, entitle a

criminal defendant to a jury determination that he is guilty of every element of the

crime with which he is charged, beyond a reasonable doubt." 530 U.S. at 467.

Appellant does not contend that the State failed to allege every element ofthe capital

offense. Nor does he contend that a special issue was not submitted to the jury or was

not answered by the jury at punishment. While the Court has addressed Sixth

Amendment claims under Apprendi, they have generally involved whether a trial

court's decisionto cumulate sentences violatedApprendi,14 andthat situationdoes not

exist here. Appellant's allegations presents no viable Sixth Amendment claim.

Considered together, Appellant's arguments fail to show that the trial court

ened in denying his motion to quash the indictment. The Court should affirm the trial

court's ruling and reject Appellant's sixteenth point of enor in its entirety.

14 Alameda v. State, 235 S.W.3d 218, 223-24 (Tex. Crim. App. 2007) (citing Barrow v. State, 207 S.W.3d 377, 379-80 (Tex. Crim. App. 2006)).

-57- STATE'S REPLY TO POINT OF ERROR 17 (FAILURE TO PRECLUDE THE DEATH PENALTY - BUSH v. GORE)

As his seventeenth point of enor, Appellant contends the trial court ened in

denying his motion to preclude the death penalty as a sentencing option due to Equal

Protection violations. (Appellant's Br. 111-120).15 Citing the Supreme Court's

decision in Bush v. Gore, 531 U.S. 98, 102 (2000), he argues that Texas's death

penalty system is unconstitutional because there are "no uniform, statewide

standards" to guide Texas prosecutors in deciding when they should seek the death

penalty. (Appellant's Br. 111). The trial court did not en in denying Appellant's

motion because this Court has repeatedly rejected Appellant's very claim. See, e.g.,

Threadgill v. State, 146 S.W.3d at 672.

"It is well-settled that the discretion afforded the State to seek the death penalty

is not unconstitutional." Cantu v. State, 842 S.W.2d at 692 (citing Gregg v. Georgia,

428 U.S. 153, 199 (1976) (holding that prosecutorial discretion was not

unconstitutional); see also Jurekv. Texas, 428 U.S. 262, 274 (1976) (holding that

prosecutorial discretion was not unconstitutional). This Court has "previously

rejected the notion that there should be 'a statewide policy or standard for

determining in which cases the State will seek the death penalty as opposed to leaving

15 Prior to trial, Appellant filed a "Motion to Preclude the Death Penalty as a Sentencing Option," which was denied. (1 CR 63-86, 139-46; 2 CR 263).

-58- the decision in the hands of individual district attorneys.'" Roberts v. State, 220

S.W.3d at 535 (citing Crutsinger v. State, 206 S.W.3d 607, 611-13 (Tex. Crim. App.

2006); Hankins v. State, 132 S.W.3d 380, 387 (Tex. Crim. App. 2004)).

The Court has also specifically rejected claims, like Appellant's, that a

disparity in death-penalty decision-making from county to county violates the

principles articulated by the Supreme Court in its Bush v. Gore decision. E.g., Neal

v. State, 256 S.W.3d 264, 272 (Tex. Crim. App. 2008); Roberts, 220 S.W.3d at 535;

Threadgill, 146 S.W.3d at 672; Rayford v. State, 125 S.W.3d at 534. Appellant offers

no basis for this Court to revisit the issue. Accordingly, the Court should affirm the

trial court's ruling and overrule Appellant's seventeenth point of enor.

STATE'S REPLY TO POINT OF ERROR 18 (INSTRUCTIONS FAILED TO PROVIDE AN OPPORTUNITY FOR A "REASONED MORAL RESPONSE")

Appellant maintains that the trial court's instructions at punishment violated

his Eighth Amendment rights by "fail[ing] to provide the jury the opportunity to have

its decision reflect a 'reasoned moral response' to the offender and his offense."

(Appellant's Br. 120). In Point of Enor 18(a), he contends that the trial court's

instructions "conveyed the false impression that mitigation is necessarily tied into the

finding on future dangerousness" and thatjurors might believe that because the future

dangerousness issue must be proven beyond a reasonable doubt, then they might

-59- enoneously believe that evidence in mitigation must somehow outweigh that finding.

(Appellant'sBr. 121).16 In Pointof Enor 18(b), Appellant argues that the trial court's

instructions for the jury to consider all evidence that militates for or against the death

penalty directed jurors away from a '"reasoned moral response' to the offender and

his offense" and allowed improper consideration of evidence that militated in favor

of death. (Appellant's Br. 122).

Neither issue appears to have been raised to the trial court. While Appellant

states that he raised these issues "in a written motion pretrial" that was denied by the

trial court (Appellant's Br. 120 n. 19) (citing 2 CR 57; 14 RR 57), there is no

reference to Appellant's cunent arguments in the pages cited. The Court should reject

Appellant's claims at the outset for his failing to provide appropriate citations to the

record. See Trap. R. App. P. 38.1(i).

If the Court does reach the issues, it should deny relief. Because Appellant's

arguments do not appear to have been made to the trial court, he must show

fundamental enor and egregious harm. Almanza v. State, 686 S.W.2d at 171. He

cannot make that showing,

16 Appellant also asserts thattheinstructions "didnotallow thejuryto give effect to the mitigation evidence presented." (Appellant's Br. 121). However, he fails to identify any mitigating evidence that purportedly falls outside the scope ofthe existing special issues, so the Court should reject the claim.

-60- The trial court's instructions do not reveal enor, statutorily or otherwise. The

jury was properly instructed that in deliberating the special issues, jurors "must

consider all the evidence of the guilt or innocence stage and the punishment stage,

including but not limited to evidence of the Defendant's background and character

or circumstances of the offense that militates for or mitigates against the imposition

ofthe death penalty." (2 CR 330-31,331). The jury was also instructed that the State

has the burden ofproving beyond a reasonable doubt that the answer should be "Yes"

to the deliberateness and future dangerousness special issues. (2 CR 330, 331). In

turn, the jury's answers to the first two special issues stated, "We, the jury,

unanimously find and determine beyond a reasonable doubt" that the answer to each

issue is "Yes." (2 CR 336, 337). No "beyond a reasonable doubt" language is

included in the trial court's instructions regarding the mitigation special issue or in

the actual special issue itself. (2 CR 331-32, 338).

Appellant's supposition that jurors might have held an enoneous belief

regarding a standard of proof on the mitigation special issue is no basis for a claim

of constitutional enor. (Appellant's Br. 121). He starts with the faulty presumption

thatjurors misread, misconstrued, and misinterpreted the trial court's instructions. He

does so despite the clarity ofthe instructions set forth above and the voir dire of each

juror about the special issues. Appellant's conjecture does not rebut the principle that

-61- jurors are presumed—in the absence of any contrary evidence—to have understood

the instructions in their intended meaning, to have followed the instructions given,

and to have acted rationally in discharging their duties. Hutch v. State, 922 S.W.2d

at 172; Richardson v. State, 879 S.W.2d at 882.

Appellant's Point of Enor 18(b) fairs no better. (Appellant's Br. 122-23). The

crux of the claim is that the trial court enoneously instructed the jury to consider all

the evidence during its punishment-phase deliberations which, in turn, paved the way

for "improper consideration of other evidence that militated in favor of death."

(Appellant's Br. 122). Apellant contends that the improper evidence in his case is

"graphic accounts by other inmates of offenses committed by others," whatever that

might be. (Id.). This generalized description with no citation to the record makes it

impossible to verify Appellant's claim. In any event, Appellant's arguments are

largely a repeat of his Point of Enor 12 regarding the trial court's failure to limit the

scope of militating evidence to that which might be viewed as reducing moral

blameworthiness. (Compare id. at 92-94). As argued in the State's Reply to Point of

Enor 12 and incorporated herein, the trial court did not err in providing the

challenged instruction because jurors are statutorily required to consider all the

evidence during deliberations. The Court should overrule Appellant's eighteenth

point of enor in its entirety.

-62- STATE'S REPLY TO POINT OF ERROR 19 (INSTRUCTIONS FAILED TO PROVIDE JURORS A "REASONED AND RATIONAL MORAL PROCESS")

As his final point of enor, Appellant asserts that the trial court violated his

Eighth and Fourteenth Amendment rights when it failed to instruct the jury so as to

provide "a reasoned and rational moral process for the consideration and

implementation of mitigating circumstances." (Appellant's Br. 123). He argues that

the jury instructions failed to provide a constitutionally satisfactory process for

considering and giving effect to mitigating evidence. Although he contends the

instructions have a "lack ofdefinition" and "structure," and are "vague and inherently

flawed," his briefing fails to provide any specific reason or facts in support, nor does

it identify any mitigating evidence that jurors were not able to consider in this case.

(See Appellant's Br. 123-24). Because Appellant does not appear to identify any new

complaint that has not already been raised and addressed by the State in its reply to

Appellant's Points of Enor 6 to 18, the Court should reject his claim and overrule

this final of enor.

-63- PRAYER

The State respectfully requests that this Honorable Court overrule Appellant's

points of enor and affirm his conviction and sentence of death.

Respectfully submitted,

WES MAU Hays County District Attorney SBOT 00784539 712 S. Stagecoach Trail, Ste. 2057 San Marcos, Texas 78666 (512)393-7600 (512) 393-7619 fax wes.mau(g),hays.co.tx.us

/s/ Katherine D. Hayes KATHERINE D. HAYES Assistant Attorney General Lead Counsel SBOT 00796729 Texas Office of the Attorney General Criminal Appeals Division P.O. Box 12548 Austin, TX 78711-2548 (512)936-1400 (512) 320-8132 fax katherine.hayes@texasattorneygeneral.gov

-64- CERTIFICATE OF SERVICE

I certify that on February 9, 2015, a copy of the foregoing Brief of Appellee

was filed electronically with the Court through the eFileTexas.gov electronic filing

system. Electronic service was complete on that same date on transmission of the

document to the serving party's electronic filing service provider, and notice offiling

was automatically generated and served on the following counsel for Appellant:

Angela J. Moore 310 S. St. Mary's, Ste. 1830 San Antonio, TX 78205 amoorelaw@aol.com

Kerri Anderson Donica 301 West 3rd Ave. Corsicana,TX 75110-4665 keni(S>kenidonicalaw.com

I further certify that on the same date, a copy of this Brief of Appellee was

served on the following counsel for the State by email and by U.S.P.S. delivery:

Wes Mau Hays County District Attorney 712 S. Stagecoach Trail, Ste. 2057 San Marcos, TX 78666 wes.mau(g),co.hays.tx.us

/s/ Katherine D. Hayes KATHERINE D. HAYES Assistant Attorney General

-65- CERTIFICATE OF COMPLIANCE

I certify that the foregoing Brief of Appellee complies with the typeface

requirements of Tex. R. App. P. 9.4(e) because it has been prepared using Corel

WordPerfect Office 12, Times New Roman font with 14-point for text and 12-point

for footnotes. This document also complies with the word-count limitations of Tex.

R. App. P. 9.4(i)(2)(A) because it contains 15,589 words, excluding any parts

exempted by Tex. R. App. P. 9.4(i)(l).

/s/ Katherine D. Hayes {CATHERINE D. HAYES Assistant Attorney General

-66-