Matthews, Damon Roshun

• Court: Court of Criminal Appeals of Texas
• Decided: June 28, 2006
• Docket: AP-74,936
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO.74,936

DAMON ROSHUN MATTHEWS, Appellant

v.

THE STATE OF TEXAS

ON DIRECT APPEAL

FROM HARRIS COUNTY

Keller, P.J., delivered the opinion of the unanimous Court.

O P I N I O N

Appellant was convicted in April 2004 of capital murder. ⁽¹⁾ Pursuant to the jury's answers to the special issues set forth in Texas Code of Criminal Procedure Article 37.071, §§ 2(b) and 2(e), the trial judge sentenced appellant to death. ⁽²⁾ Direct appeal to this Court is automatic. ⁽³⁾ Appellant raises ten points of error. Finding no merit in appellant's claims, we shall affirm.

I. SUFFICIENCY OF THE EVIDENCEA. Background

Viewed in the light most favorable to the verdict, the evidence at trial shows the following: Appellant and the victim, Esfandiar Gonzalez, grew up together and had known each other since elementary school. Gonzalez lived with his parents, worked full-time at a Kroger grocery store, and had no criminal history. On March 6, 2003, at around 6:50 p.m., Gonzalez drove his Oldsmobile to Kroger, and picked up and cashed his paycheck for $211.61. Around 7:00 p.m., Gonzalez talked to appellant on the phone. Twenty minutes later, Gonzalez called his mother and told her that he was going with a friend to look at some speakers for his car.

Gonzalez drove to a Super 8 motel in Sharpstown at around 9 p.m. and picked up appellant, who was staying in room number 243. They drove to a parking lot at 12400 Sharpview. While they were parked, Gonzalez sat in the driver's seat of the car. Appellant got out of the car and stood outside the front passenger side door. Appellant then pointed a gun at Gonzalez through the half-opened passenger window and shot him in the head seven times, killing him.

Blood spatter evidence on Gonzalez's clothes and body indicated that Gonzalez had been sitting in an upright position when he was shot and that Gonzalez's body had been pulled out of the car and dumped at the scene. Blood stains on appellant's shorts and spatterings on the side of his tennis shoes were consistent with appellant shooting Gonzalez while he sat in the driver's seat, pulling his body out of the car, and tipping the body, causing blood to run from his head. Blood stains on the shoulder seat strap of the driver's seat of the Oldsmobile and high velocity specks on the overhead liner were consistent with someone being shot at close range while sitting in the driver's seat. The stains on the passenger's seat were consistent with the passenger's door being closed and the shooter leaning down and shooting through the passenger's window.

Around 10 p.m., appellant drove Gonzalez's car to his motel room. Weirleis Flax, who was staying in the same room, was there when appellant came inside and changed his clothes and shoes. Appellant placed his clothes and shoes in a pile and then left the motel.

Meanwhile, Kalen Hutchenson, who lived in a house at 12400 Sharpview, heard a cell phone ringing at around 9:30 p.m. and stepped outside to see where the cell phone was. He discovered Gonzalez's body in the parking lot. He took Gonzalez's cell phone and called 911, and waited for the police to arrive. Officer Andrew Taravella and Sergeant Hub Mayer arrived at the scene. They found no firearms evidence - no shell casings or bullet strikes - in the surroundings of the nearby buildings. In Gonzalez's pocket they found a piece of paper with the number 243 on it and a dollar in change. While they were investigating the scene, Gonzalez's cell phone rang; the officers answered it. It was Caesar, Gonzalez's brother. Upon talking to Caesar, the officers realized that Gonzalez's car was missing from the scene, so they dispatched a description of Gonzalez's Oldsmobile over the radio.

Around 1:00 a.m., Deputy David Mash was patrolling the area when a young male, Javier Sasedo, approached him and told him that his friend had been murdered a few hours earlier and that he had just seen someone driving his friend's car into a do-it-yourself carwash on Dashwood, about a block away. Mash notified dispatch and requested assistance from back-up units. He then drove to the carwash and saw appellant in one of the carwash stalls washing blood out of Gonzalez's car. Mash apprehended appellant and put him in the back seat of the patrol car. When back-up units arrived, the officers took photographs of Gonzalez's car and looked into the driver's side of the car. They saw that there was blood that started from the driver's side and ran to the passenger's side. The officers also recovered a gun, a Davis .380, from the floorboard of the driver's side of Gonzalez's car, and they recovered a fired .380 shell casing in the back of the car. The gun was later determined to be the murder weapon.

Around 2:00 a.m. at the scene, Mayer interviewed appellant and taped the interview. ⁽⁴⁾ In his oral statement, appellant denied any involvement in Gonzalez's murder. He said that a short Hispanic male, with a bald head and gold in his mouth, named "Creeper," ⁽⁵⁾ came over to the motel in Gonzalez's car and asked him if he wanted to "pimp the car for a little bit." At first, appellant claimed that he did not know that the car belonged to Gonzalez. He said that he drove the car for a few minutes, before he noticed the blood on his hands and on the car. He then took the car to the carwash to wash out the blood. When the police arrived, he denied any knowledge of the gun on the floorboard. He stated that he never fired a weapon that night. When asked about the identity of "Grumpy," a nickname of Gonzalez, appellant said he did not know who Grumpy was. He later admitted that Grumpy had called him earlier that day and that he had known Grumpy since they were in school together.

After the interview, Mayer went to the motel room at the Super 8. Flax opened the door and consented to the entry and search of the room. Flax indicated that appellant had come over, changed his clothes and shoes, and left again. Appellant's clothes and shoes were recovered from the room. Testing revealed that the clothes and shoes recovered from the motel room and the clothes appellant wore at the time of his arrest had Gonzalez's DNA on them.

Around 5:00 a.m., Police Officer Norman Ruland interviewed appellant on video. ⁽⁶⁾ In his videotaped statement, appellant changed his story multiple times. At first, appellant told Ruland that, around 7:00 p.m., Grumpy picked up appellant and asked him where to get cocaine. ⁽⁷⁾ Appellant then took Gonzalez to see Creeper and a guy named "T-Man." Appellant stayed in the car while Gonzalez talked to Creeper and T-Man. According to appellant, before Gonzalez returned to Creeper, he took appellant to the motel room that appellant shared with Flax. Creeper then drove to the motel in Gonzalez's car and asked appellant if he wanted a ride. Appellant took the car for a ride. When he noticed the blood on his hands and clothing, he took the car to the carwash.

After further questioning, appellant claimed that he heard gunfire when Gonzalez, Creeper and T-Man were talking and he was sitting in the car. According to appellant, Creeper shot at Gonzalez, and Gonzalez shot at Creeper, and then Gonzalez went to the car, shouted to appellant that he had set him up, and shot two or three times at appellant. Everyone was outside the car at this time, and appellant shot his gun, "a little .25," once in self-defense, before he threw down his gun and ran back to the motel. He claimed that he did not know that Gonzalez was dead or who shot Gonzalez. He also claimed that he did not know that the car was full of blood or who owned the gun on the floorboard, although he speculated that the gun belonged to Creeper. Appellant later said that Gonzalez and Creeper were members of the La Primera gang ⁽⁸⁾ and therefore friends. He admitted that it did not make sense that Creeper would kill Gonzalez and take his car to appellant, a non-member of the gang. He then recalled that it was an unknown black man, not Creeper, who brought Gonzalez's car, full of blood, to him and asked him if he wanted a ride. He then drove Gonzalez's car to the carwash.

Dr. Ana Lopez, assistant medical examiner at the Harris County Medical Examiner's Office, performed an autopsy of Gonzalez's body on March 7, 2003, and determined that he had six gunshot wounds on the right side of his head, another gunshot wound on the top of his head, a contusion on his shoulder and some abrasions on his back. She concluded that two of the gunshot wounds were surrounded by multiple stippling marks and no soot, indicating a proximity of the gun to Gonzalez of approximately one to three feet. Five of the bullets were recovered from the neck, suggesting that the bullets traveled from the right side of his face to the left and downward, consistent with an individual standing and shooting downward to someone who is sitting. Six of the seven gunshot wounds were characterized as fatal.

The record, viewed in a neutral light, reveals the following evidence favorable to appellant. In both statements to the police, appellant repeatedly denied killing Gonzalez. A fingerprint lifted on the outside of the driver's door and submitted for latent examination had insufficient characteristics to be identifiable. No fingerprints were lifted from the .380 or the bullets. Dr. Eric Sappenfield, a trace section supervisor for the Harris County Medical Examiner's Office, analyzed samples submitted from appellant's hands on March 6, 2003, for gunpowder residue under a scanning electron microscope. The results were "inconclusive," meaning gunpowder residue was either not present or it could not be determined whether it was present. ⁽⁹⁾ Finally, Lawrence Renner, a blood stain expert, determined that the blood stain on appellant's sweatshirt was a transfer pattern stain, caused by something with blood on it touching the surface of the sweatshirt. There was no blood spatter on the sweatshirt, though there should have been if appellant was wearing the sweatshirt while shooting Gonzalez from one to three feet away. ⁽¹⁰⁾

B. Analysis

In points of error one and two, appellant contends that the evidence is legally and factually insufficient to sustain his conviction for capital murder. Evidence is legally insufficient if, viewed in the light most favorable to the prosecution, no rational jury could find the defendant guilty beyond a reasonable doubt. ⁽¹¹⁾ Under a factual sufficiency review, we consider all of the evidence in a neutral light and ask whether the jury was rationally justified in finding guilt beyond a reasonable doubt. There are two ways in which the evidence may be factually insufficient. ⁽¹²⁾ First, when considered by itself, evidence supporting the verdict may be too weak to support the finding of guilt beyond a reasonable doubt. ⁽¹³⁾ Second, there may be both evidence supporting the verdict and evidence contrary to the verdict. ⁽¹⁴⁾ If, in weighing all the evidence under this balancing scale, the contrary evidence is strong enough that the beyond-a-reasonable-doubt standard could not have been met, the guilty verdict should not stand. ⁽¹⁵⁾ We find appellant's claims of legal insufficiency and factual insufficiency to be without merit.

Appellant argues that the evidence is legally insufficient because: (1) there was no direct evidence that appellant personally shot Gonzalez; (2) appellant denied killing Gonzalez in his statements to the police; and (3) the evidence supports the defense theory that appellant merely moved Gonzalez's car or body, and such evidence might implicate appellant as a party or would have supported a conviction for theft or unauthorized use of a motor vehicle.

In reviewing the legal sufficiency of the evidence, we look at the events occurring before, during, and after the commission of the offense. ⁽¹⁶⁾ Circumstantial evidence alone can be sufficient to establish guilt. ⁽¹⁷⁾ Each fact does not need to point directly and independently to the guilt of the appellant as long as the cumulative effect of all the incriminating facts are sufficient to support the conviction. ⁽¹⁸⁾

Viewing the evidence in the light most favorable to the verdict, we find that the evidence is legally sufficient to sustain the conviction of capital murder. There was evidence that appellant and Gonzalez talked on the phone. Gonzalez called his mother to tell her that he was going with a friend to look for speakers for his car. Appellant confessed that Gonzalez picked appellant up from a Super 8 motel in Sharpstown. Gonzalez later was found dead at a parking lot on Sharpview; he had the number 243 on a piece of paper in his pocket - the room number in which appellant was staying. Appellant confessed that he drove Gonzalez's car to the motel room to change out of his bloody clothes and shoes; DNA testing revealed that these items had Gonzalez's DNA on them. Appellant then drove Gonzalez's car to a car wash and attempted to wash all of the blood out of the car, at which time he was apprehended by the police. The murder weapon was recovered on the floorboard of Gonzalez's car.

Appellant gave the police two statements, in which he changed his story multiple times. He ultimately stated that he was present at the scene of the shooting and that he fired a shot and left the scene in Gonzalez's car. The cumulative effect of all of these incriminating facts are sufficient to support appellant's conviction. Point of error one is overruled.

Appellant argues that the evidence is factually insufficient because: (1) appellant denied killing Gonzalez in his statements; (2) the defense offered an alternative theory that Gonzalez was involved in drugs and the La Primera gang and was killed by someone named "Creeper" or some other unknown gang member; and (3) the defense presented testimony by defense expert, Larry Renner, that contradicted the State's blood-spatter expert testimony.

In reviewing the evidence for factual sufficiency, we do not "find" facts or substitute our judgment for that of the fact finder. ⁽¹⁹⁾ The jury is the sole judge of the weight and credibility to be given to a witness's testimony. ⁽²⁰⁾

The jury could accept or reject any or all of the statements that the appellant made in his tape-recorded and videotaped statements. ⁽²¹⁾ Looking at the evidence in a neutral light, we conclude that the jury was rationally justified in finding guilt beyond a reasonable doubt, and thus the evidence is factually sufficient to sustain the conviction for capital murder. Point of error two is overruled.

II. LESSER-INCLUDED OFFENSES In points of error three through five, appellant contends that the trial court erred in refusing to submit his requested instruction regarding the lesser-included offenses of theft and unauthorized use of a vehicle. Point three raises a state-law claim while points four and five allege violations of the Federal Constitution, specifically the due process clause of the Fourteenth Amendment and the Eighth Amendment prohibition against cruel and unusual punishment.

At the conclusion of the evidence, appellant requested that the trial court include instructions in the jury charge on murder, theft, and unauthorized use of a motor vehicle. The trial court granted defense counsel's request for a charge on murder but denied appellant's request for charges on theft and unauthorized use of a motor vehicle.

Under state law, a lesser-included offense must be included in the jury charge if: (1) the requested charge is for a lesser-included offense of the charged offense; and (2) there is some evidence that, if the defendant is guilty, he is guilty only of the lesser offense. ⁽²²⁾ In other words, there must be some evidence from which a jury could rationally acquit the defendant of the greater offense while convicting him of the lesser-included offense. ⁽²³⁾

To convict appellant of capital murder, the jury was required to find beyond a reasonable doubt that appellant intentionally caused the death of Esfandiar Gonzalez while in the course of committing or attempting to commit robbery. Robbery is a lesser-included offense of murder in the course of robbery. Theft is a lesser-included offense of robbery. ⁽²⁴⁾ But unauthorized use a motor vehicle is not a lesser-included offense of the capital murder charged in this case, since it is not included in the proof necessary to establish that the defendant intentionally committed murder in the course of committing or attempting to commit robbery. ⁽²⁵⁾ The trial court therefore did not violate state law in denying appellant's request for an instruction on unauthorized use of a motor vehicle.

Although theft is a lesser-included offense of robbery, there is no evidence here that appellant is guilty only of the lesser-included offense of theft. To be entitled to a jury instruction on the lesser-included offense of theft, the record must contain evidence that appellant committed a theft of the victim's property but did not injure or threaten him and did not make him fearful of imminent physical injury. ⁽²⁶⁾

The evidence shows that appellant admitted in his statements that he shot at Gonzalez and took Gonzalez's car. There was no evidence from which a jury could rationally acquit appellant of murder in the course of robbery while convicting him of theft. Thus, the trial court did not violate state law in refusing appellant's request that the jury be instructed on the lesser-included offense of theft. Point of error three is overruled.

With regard to the alleged violations of the Federal Constitution, appellant has not shown that the trial court's action in refusing appellant's requested instructions denied appellant his due process rights or violated the prohibition against cruel and unusual punishment. ⁽²⁷⁾

Points of error four and five are overruled.

III. PUNISHMENT In point of error six, appellant contends that the assessment of the death penalty violated the Eighth Amendment because of appellant's youth and because the jury's answers to the special issues may have been based on conduct of appellant occurring when he was seventeen years old or younger.

Appellant filed a pretrial motion to quash the indictment and preclude the death penalty as a sentencing option on the ground that § 8.07(c) ⁽²⁸⁾ of the Texas Penal Code violated the Eighth and Fourteenth Amendments of the United States Constitution. After the State rested in the guilt phase of trial, appellant argued the motion and specifically argued that Roper v. Simmons ⁽²⁹⁾ was before the United States Supreme Court and that the Court would be deciding whether to uphold the imposition of the death penalty on persons seventeen years old or under. As appellant was eighteen years old at the time of the offense, the trial court denied the motion.

The United States Supreme Court held in Simmons that the Eighth and Fourteenth Amendments to the United States Constitution "forbid imposition of the death penalty on offenders who were under the age of 18 when their crimes were committed." ⁽³⁰⁾ Because appellant was eighteen years old when he committed the offense of capital murder, the holding in Simmons does not apply, and, therefore, the assessment of the death penalty in this case did not violate the Eighth Amendment of the United States Constitution.

Appellant also asserts that the admission of evidence in the punishment phase of prior bad acts and prior offenses he committed while he was under the age of eighteen was unconstitutional. However, appellant did not object to the admission of the evidence ⁽³¹⁾ at trial on this basis.

To preserve error for appellate review, the complaining party must make a timely, specific objection and obtain a ruling on the objection. ⁽³²⁾ The failure to make an objection at trial on the grounds complained of on appeal forfeits many claims, including an Eighth Amendment claim of cruel and unusual punishment. ⁽³³⁾ Appellant forfeited his complaint that admission of evidence of prior bad acts and prior offenses committed as a juvenile violated the Eighth Amendment prohibition against cruel and unusual punishment.

Moreover, appellant's complaint is without merit. Article 37.071 permits the admission of evidence at the punishment phase of capital cases regarding "any matter that the court deems relevant to sentence, including evidence of the defendant's background or character. . . ." ⁽³⁴⁾ Youth is neither a mitigating ⁽³⁵⁾ nor an aggravating factor as a matter of law; rather, the jurors interpret the facts and determine if youth is a mitigating or aggravating factor, or neither. ⁽³⁶⁾

In the punishment phase of a capital murder trial, the admission of prior offenses committed when the defendant was a juvenile does not violate the Eighth Amendment if he was assessed the death penalty for a charged offense that occurred when he was at least eighteen years old. ⁽³⁷⁾ Appellant was assessed the death penalty for the charged offense of capital murder, which he committed when he was eighteen years old. Point of error six is overruled.

In points of error seven and eight, appellant contends that the trial court erred in failing to instruct the jury that the State has the burden of proof beyond a reasonable doubt on the mitigation issue. He argues that the Texas statute ⁽³⁸⁾ is inconsistent with Apprendi v. New Jersey ⁽³⁹⁾ and its progeny and with the Texas constitutional guarantee of due course of law. Appellant filed a proposed jury charge ⁽⁴⁰⁾ regarding the mitigation issue, and the trial court denied the request. The Apprendi and Blakely claims have been raised and rejected. ⁽⁴¹⁾

Appellant also relies on United States v. Booker. ⁽⁴²⁾ He claims that Article 37.071 is a guidelines-type statute that differs from the Federal Sentencing Guidelines in degree rather than in kind.

In Booker, the Court held that the Sixth Amendment requirement that any fact, other than a prior conviction, which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt was incompatible with the Federal Sentencing Act, which called for promulgation of mandatory federal sentencing guidelines; thus, provisions of the Act that made guidelines mandatory and set forth the standard of review on appeal would be severed and excised. ⁽⁴³⁾ The Supreme Court also reaffirmed its holding in Apprendi that any fact, other than a prior conviction, which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict, must be admitted by the defendant or proved to a jury beyond a reasonable doubt. ⁽⁴⁴⁾ We have held that Article 37.071 satisfies these requirements. ⁽⁴⁵⁾ Points of error seven and eight are overruled.

In point of error nine, appellant contends that the trial court erred in failing to instruct the jury that the State has the burden of proof beyond a reasonable doubt on the mitigation issue because the Texas statute gives the jury "mixed signals" as to how the mitigation issue is to be applied.

At trial, appellant requested an instruction on the State's burden of proof on the mitigation issue, based on Penry v. Johnson, ⁽⁴⁶⁾ because without this instruction, the mitigation issue gives the jury, at best, mixed signals as to how the jury is to go about answering the issue. The trial court denied the request. Appellant claims that the Texas death penalty statute violates the Eighth Amendment, as interpreted in Penry II, because, in that it is unclear as to the burden of proof, the mitigation instruction suffers from the same constitutional flaw of sending "mixed signals" to the jury. We have rejected the argument that the mitigation issue sends "mixed signals" to the jury, and we have rejected the argument that the failure to assign a burden of proof violates the Eighth Amendment. ⁽⁴⁷⁾ Point of error nine is overruled.

In point of error ten, appellant contends that the punishment charge misinformed the jury by failing to disclose that each juror could prevent a death sentence by disagreeing with the other jurors, in violation of the heightened reliability requirement of the Eighth Amendment of the United States Constitution and the Due Process Clause of the Fourteenth Amendment. We have decided these claims adversely to this position. ⁽⁴⁸⁾ Point of error ten is overruled.

The judgment of the trial court is affirmed.

Keller, Presiding Judge

Date delivered: June 28, 2006

Do Not Publish

1. Tex. Penal Code Ann. §19.03(a).

2.

Article 37.071, § 2(g). Unless otherwise indicated all future references to Articles refer to Code of Criminal Procedure.

3.

Article 37.071, § 2(h).

4.

Before appellant gave his tape-recorded oral statement, Mayer read appellant his statutory rights, and appellant stated that he understood them and that he knowingly and voluntarily waived them. A redacted recording was admitted at trial without objection.

5. Appellant used the names "Creeper" and "Creepy" interchangeably in his statements.

Subsequent to appellant's statement, Mayer interviewed "Creeper," named Froylan Bettencourt, a tall Hispanic male without gold in his mouth. Bettencourt stated that he was not present on the night of March 6, 2003, and he was not the shooter. He was eliminated by Mayer as a suspect.

6.

Ruland read appellant his statutory rights, and appellant voluntarily waived those rights and gave a videotaped statement. The tape was admitted at trial.

7.

A postmortem toxicology examination revealed that there was no cocaine or any other type of drug or alcohol in Gonzalez's blood.

8. At trial, the defense suggested that Gonzalez's death was tied to his membership in the La Primera gang.

The defense presented testimony by Dwight Stewart, a training specialist for the Texas School Safety Center and instructor of gang awareness, that Gonzalez had tattoos on his body signifying that he was a member of La Primera. However, Officer Ruland, who had worked in the divisional gang unit of the Houston Police Department, testified for the State that none of the tattoos found on Gonzalez's body signified that he was a member of the La Primera gang. Caesar Gonzalez also testified that his brother was not in a gang. And Kim Whitehead, assistant principal and gang education awareness representative at Gonzalez's school, testified that, after counseling Gonzalez, she determined that, because he wore white and had friends in the gang, Gonzalez at a prior time may have been associated with the La Primera gang, but his tattoos did not indicate that he was in a gang.

9.

Dr. Sappenfield stated on cross-examination that he would not expect to find gunshot residue on the hands of a person who used a power sprayer to spray out a car at a carwash because the person's hands would get wet and wash the particles away from the hands.

10.

Renner admitted on cross-examination that the variables of wind, air-conditioning, and the smaller caliber of a gun affect whether blood spatter will reach the clothing of a shooter standing one to three feet away from the victim.

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

12. Zuniga v. State, 144 S.W.3d 477, 484 (Tex. Crim. App. 2004).

13. Id.

14. Id.

15. See id. at 485.

16. See Guevara v. State, 152 S.W.3d 45, 49 (Tex. Crim. App. 1999).

17. See id.

18. See id.

19. See Zuniga, 144 S.W.3d at 482.

20. See Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997).

21. See id.

22. See Hayward v. State, 158 S.W.3d 476, 478 (Tex. Crim. App. 2005); Rousseau v. State, 855 S.W.2d 666, 672 (Tex. Crim. App. 1993).

23. Moore v. State, 969 S.W.2d 4, 8 (Tex. Crim. App. 1998).

24. Tex. Penal Code Ann. § 29.02.

25.

Tex. Penal Code Ann. § 31.07; see also Rousseau, 855 S.W.2d at 673.

26.

Tex. Penal Code Ann. § 31.03(a).

27. See Wesbrook v. State, 29 S.W.3d 103, 112-13 (Tex. Crim. App. 2000). In Wesbrook, this Court rejected appellant's argument that the t

rial court erred in failing to declare the Texas death penalty statute unconstitutional on the grounds that it violated the Eighth and Fourteenth Amendments to the United States Constitution. Appellant claimed that he was denied due process and equal protection and was subjected to cruel and unusual punishment because, at both the guilt and punishment phases, he was prevented from submitting special instructions to the jury on the issue of sudden passion arising out of adequate cause. This Court rejected his claim because, inter alia, he failed to explain how he was denied due process or subjected to cruel and unusual punishment, and the Court could discern no indications that the refusal to instruct the jury on sudden passion constituted cruel and unusual punishment.

28. Section 8.07(c), at the time of the offense, provided that, "No person may, in any case, be punished by death for an offense committed while he was younger than 17 years." Texas Penal Code § 8.07(c) (Vernon 2003). The amendment to § 8.07(c), made in response to Simmons, applies to offenses occurring on or after September 1, 2005; it provides that, "No person may, in any case, be punished by death for an offense committed while he was younger than 18 years."

29.

543 U.S. 551 (2005).

30. Id. at 578.

31.

The State offered and the trial court admitted: appellant's school records, reflecting numerous school violations and suspensions; judgments in which courts found appellant engaged in delinquent conduct for possession of marijuana and carrying a handgun; appellant's juvenile probation records, revealing numerous probation violations; an order certifying appellant as an adult for prosecution of two aggravated robberies; testimony by the two victims of the aggravated robberies; and, testimony by officers regarding appellant's arrest in the aggravated robberies.

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

33. Curry v. State, 910 S.W.2d 490, 497 (Tex. Crim. App. 1995).

34. Article 37.071

§ 2(a)(1).

35. Under Article 37.071,

§ 2(f)(4), mitigating evidence is "evidence that a juror might regard as reducing the defendant's moral blameworthiness."

36. See Moore v. State, 999 S.W.2d 385, 406 (Tex. Crim. App. 1999).

37. See Corwin v. State, 870 S.W.2d 23 (Tex. Crim. App. 1993).

38. Article 37.071,

§ 2(e)(1), requiring the mitigation special issue to be submitted to the jury, asks: "Whether, taking into consideration all of the evidence, including the circumstances of the offense, the defendant's character and background, and the personal moral culpability of the defendant, there is a sufficient mitigating circumstance or circumstances to warrant that a sentence of life imprisonment without parole rather than a death sentence be imposed."

39. 530 U.S. 466 (2000).

40. Appellant's proposed jury charge provided:

Regarding the comparison of mitigating evidence and aggravating evidence, the State has the ultimate burden of proof to convince you, beyond a reasonable doubt, that any mitigating considerations are not sufficient to justify a sentence of life imprisonment rather than the death penalty. This does not mean that the State must negate any possible mitigating consideration, whether or not it is raised by evidence. Rather, the special issue asks you to make a comparative judgment between factors on either side of the question which actually have been raised by some evidence. If, after a thorough review of the evidence on both sides of the question, you believe that there are sufficient mitigating considerations, or you have a reasonable doubt as to how to resolve the comparison which you must make under the special issue, then you should answer this special issue affirmatively.

41. See Woods v. State, 152 S.W.3d 105, 120 (Tex. Crim. App. 2004); Hankins v. State, 132 S.W.3d 380 (Tex. Crim. App. 2004); Rayford v. State, 125 S.W.3d 521, 533-34 (Tex. Crim. App. 2003); Resendiz v. State, 112 S.W.3d 541, 549-50 (Tex. Crim. App. 2003), cert. denied, 541 U.S. 1032 (2004).

42. 543 U.S. 220 (2005).

43. Id. at 245.

44. See id. at 244-45.

45. See Woods, 152 S.W.3d at 120.

46. ("Penry II"), 532 U.S. 782 (2001) (holding that a court-made "nullification instruction"-a jury instruction to nullify what would otherwise be a factually correct determination that a defendant would probably be dangerous in the future-was unconstitutional in that it sent "mixed signals" to the jury).

47. See Perry v. State, 158 S.W.3d 438, 449 (Tex. Crim. App. 2004) (holding "[t]he mitigation special issue does not send 'mixed signals' because it permits a capital sentencing jury to give effect to mitigating evidence in every conceivable manner in which the evidence might be relevant"); see also Woods, 152 S.W.3d at 121-22; Scheanette v. State, 144 S.W.3d 503, 506 (Tex. Crim. App. 2004); Escamilla v. State, 143 S.W.3d 814, 828 (Tex. Crim. App. 2004) (the mitigation issue is constitutional despite its failure to assign a burden of proof); Jones v. State, 119 S.W.3d 766, 790 (Tex. Crim. App. 2003), cert. denied, 542 U.S. 905 (2004).

48. See Busby v. State, 990 S.W.2d 263, 272 (Tex. Crim. App. 1999) (Eighth Amendment); Moore v. State, 935 S.W.2d 124, 128-29 (Tex. Crim. App. 1996)(due process); see also Patrick v. State, 906 S.W.2d 481, 494 (Tex. Crim. App. 1995) (same).