Mays, Randall Wayne

• Court: Court of Criminal Appeals of Texas
• Decided: April 28, 2010
• Docket: AP-75,924
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. AP-75,924

RANDALL WAYNE MAYS, Appellant

v.

THE STATE OF TEXAS

ON DIRECT APPEAL FROM THE 392nd JUDICIAL DISTRICT COURT HENDERSON COUNTY

C OCHRAN, J., delivered the opinion of the unanimous Court.

OPINION

In May 2008, a jury convicted Randall Wayne Mays of capital murder for the shooting

death of Henderson County Deputy Sheriff Tony Ogburn.1 Based on the jury’s answers to

the special issues set forth in Texas Code of Criminal Procedure Article 37.071, Sections 2(b)

and 2(e), the trial judge sentenced Mays to death.2 After reviewing Mays’s twenty-one points

1 T EX . PENAL CODE § 19.03(a)(1). 2 T EX . CODE CRIM . PROC. art. 37.071 § 2(g). Mays Page 2

of error on direct appeal, we conclude that they are without merit. Accordingly, we affirm

the trial court’s judgment.

Factual and Procedural Background

Appellant was charged with the capital murder of two sheriff’s deputies and the

attempted capital murder of a third deputy, all stemming from a stand-off with police at his

rural property. This appeal is from appellant’s trial for the first deputy’s death.

The evidence showed that at about 3:00 p.m. on May 17, 2007, Fran Nicholson called

the Henderson County 911 dispatcher and said that appellant, her neighbor, was shooting a

handgun at his wife, who was close to the road. Mrs. Nicholson was worried because the

school bus was about to drop off her granddaughter near where appellant was shooting.

After the first shot, Mrs. Nicholson heard one or two more, and she saw appellant’s wife,

Candis, walking down the easement. Candis and appellant were screaming at each other.

Deputies Billy Jack Valentine, Duane Sanders, and Eric Ward responded to the

“domestic violence–gunshot” dispatch call.3 All three were in uniform, wearing badges, and

driving marked patrol cars or trucks. Appellant’s two-acre property was surrounded by pipe

fencing,4 so Deputies Valentine and Sanders hopped over the fence to talk to the couple who

3 Deputy Valentine testified that he had just returned to the sheriff’s office after attending a peace officers’ memorial service for fallen officers when he received the dispatch. 4 Appellant was a welder. His property contained a residence, several sheds, considerable welding equipment, and some farm machinery, as well as a variety of farm animals. Mays Page 3

were still standing near the road.5 Candis, who was described as being “slow,” walked “right

up directly in [Deputy Sanders’s] face.” She was angry and said he had no business being

on their property. “We’re just having a spat.” Appellant, however, was calm, polite, and

friendly. He explained that Candis had been sexually assaulted and he was mad about it.

Appellant told Deputy Valentine that he did not know who had called the police, but

he “guessed” that Candis had. Valentine assured appellant that he was just trying to do his

job and figure out what was going on, so he called dispatch to find out who had made the 911

call. When the dispatcher said that the call came from the neighbor, Fran Nicholson,

Valentine sent Deputy Sanders over to the Nicholsons’ house to find out why she had called.

Just as he was leaving, Sanders saw Deputy Tony Ogburn arrive in his patrol car. Deputy

Ogburn was wearing his police uniform and hat.

In the meantime, Valentine asked appellant if he had a gun on him and whether he had

been shooting. Appellant said that he had been “target practicing,” and that the gun was in

his house. Valentine also calmed Candis down, and appellant joked about how he “was

wanting to get some loving from her and that’s what started this.” Throughout, appellant

“was very nice, courteous”; he was “super-calm.” However, Valentine also stated that

appellant was well known to the local deputies because “[h]e shoots a lot out there.”

Sanders radioed back that the Nicholsons wanted to press charges against appellant

5 Valentine had turned on his patrol-car videotape and body microphone as he pulled up to appellant’s property. Virtually everything that was said by the officers, appellant, and Candis during the stand-off was on the audio tape, but the fixed-position video recorder did not capture much of the action. The tape is almost five hours long, although the stand-off itself lasted less than an hour. Mays Page 4

for deadly conduct, so Valentine called dispatch to see if appellant had any felony

convictions or arrests. He did; “the most recent [arrest] was a 7/1/99 assault on a public

servant.” Valentine said, “That was me, that was on me.” 6 He then approached appellant to

arrest him and said, “Before you talk to me any more, OK, listen to me. Now don’t make this

no harder than it’s gonna be, OK? You have the right to remain silent– ” At that moment,

appellant’s face changed, and he started backing up.

According to Fran Nicholson, who was watching from her front porch, appellant

“broke to run for the house.” Valentine reached out to grab the back of appellant’s T-shirt

to stop him from getting to the house where appellant had said he had weapons. Appellant’s

T-shirt ripped, and he pulled a knife and ran in the front door with Valentine close behind.

Appellant emerged a few seconds later “with the barrel of the rifle coming out.” It was a

30.06 deer rifle with a scope. Valentine was about two and a half feet away, but appellant

did not shoot; instead, he yelled, “Back off, back off!” Appellant disappeared back inside

the house as Valentine screamed, “He’s got a gun!” to warn the other officers. Valentine ran

back around the side of the house, took cover behind a truck, and kept talking to appellant

to calm him down, get him to put down the rifle, and come back outside. Valentine testified

that appellant pulled a chair up to a window, sat down, and kept talking to him. “We just

6 Later testimony showed that appellant almost drove into the back of Valentine’s pick-up truck as Valentine was backing out of his driveway one day. The deputy was off-duty, in plain clothes, and with his wife, but when he saw appellant continue to swerve down the road, he followed the car until it pulled into a driveway. When Valentine walked up to the driver’s door and asked the driver to step out, appellant got out and hit the deputy in the head with his fist. Valentine thought that appellant was intoxicated. Although appellant was arrested, the charge was later dismissed. Mays Page 5

kept going back and forth, just different things.” Even during the middle of the stand-off,

appellant “seemed to be fine mentally.”

Deputy Sanders had returned from the Nicholsons, and he took cover along with

Deputies Ward and Ogburn. More officers kept arriving and they, too, took up defensive

positions behind cars, trucks, and sheds. Appellant and Valentine intermittently yelled and

talked back and forth for more than fifteen minutes.7 Meanwhile, Candis was wandering in

the open yard between the deputies and appellant, getting in the line of possible fire, saying

that the officers were not going to shoot her husband and he wouldn’t shoot them. A deputy

finally tackled her and pulled her off behind a shed where he handcuffed her to keep her safe.

Other officers, including Deputy Ogburn, took turns talking to appellant.

After about twenty minutes, appellant climbed out of a window without his rifle and

started forward toward the officers. As one deputy talked to appellant, keeping him calm,

Valentine tried to “slowly ease” between appellant and the open window to ensure that

appellant could not run back into the house where the guns were. Appellant saw him, turned,

7 All of this conversation was captured on Valentine’s recorder. Valentine repeatedly promised not to hurt appellant, but appellant yelled that he feared they would kill him and said that “Ya’ll killed all three of my brothers.” [According to later witnesses, appellant did have three brothers who were all dead: one executed by the state; one shot to death; and one who died of a drug overdose.] Appellant yelled, “You’ve got a gun and I’ve got one.” When Valentine asked appellant to admit that Valentine had been honest with him, appellant responded, “You tried to take me to jail!” Appellant expressed confusion about why he was “the bad guy” when the officers had originally come to help his wife. He was mad that Deputy Valentine tore his T-shirt when grabbing for him. He said, “I’m sick, I’m feeling real sick, I’m about to die, anyway, I was poisoned.” Later, he said that he was “a military man.” [Later witnesses said that appellant joined the Army when he was young.] Mays Page 6

and bolted back toward the window. Valentine ran to intercept him, but he tripped over a

garden hose and fell as appellant dived head-first through the window. Valentine got up, but

he was then trapped against the side of the house as appellant could shoot through either of

two windows beside Valentine, and he was in the direct line of fire from his fellow deputies.

Three minutes later, appellant shot.8 Deputy Sanders heard the blast and saw Deputy

Ogburn’s hat fly in the air and saw part of his head explode. Appellant then yelled, “Where’s

the other one? I’ll take him out, where is he?” Inspector Paul Habelt ran toward Sanders,

waving his arms. Appellant shot Habelt in the head, killing him also. The officers then

started shooting back. Sanders saw Deputy Kevin Harris run past a nearby shed, “[a]nd as

he got to the end, I saw him jump, exchange the gunfire, and I saw his leg explode from

impact.” But appellant was also wounded during this exchange. He screamed, “I give up.

I’ve been hit. I give up. I’ve been hit.” He finally walked out of the house and surrendered.

Appellant later told news reporters that he had killed the two deputies because “I felt I was

being mistreated.”

During his case-in-chief, appellant called Ron Shields, the instructor for an

Intermediate Crisis Intervention class that Deputies Valentine, Sanders, and Ward had

attended just ten days before the stand-off. He testified that all three deputies had scored an

“excellent” after their training. Shields noted that the course had covered techniques for

dealing with mentally ill or distressed people, but he explained, “Whenever weapons [are]

8 All of the witnesses, including the Nicholsons’ daughter, testified that this was the first shot fired. Mays Page 7

involved, this training pretty well goes out the window.” He also said that, once a suspect

is separated from his weapon, “you use all means necessary to keep him separated from that

weapon” regardless of his mental instability or distress.

Defense counsel called Dr. Gilda Kessner, a psychologist who had never talked with

appellant, to testify to her opinion that appellant suffered from a “thought disorder with a

paranoid ideation.” Paranoia, she explained, is characterized by “suspiciousness, distrust,

fearfulness.” She stated that paranoia is exaggerated in a crisis and “involves a deep mistrust

and suspiciousness and expectation that individuals have a malevolent, deceitful motive

when they deal with you.” Paranoia does not prevent someone from acting intentionally or

knowingly, but such a person is “influenced by the disordered thoughts.”

Dr. Kessner agreed that appellant showed no signs of paranoia until Valentine began

to read him his Miranda rights. She did not find any indications that appellant experienced

any auditory or visual hallucinations. She said that appellant was not insane and that he

could “intentionally or knowingly do anything, shoot in this case. I mean, that’s apparent.”

The defense also offered the written transcript of testimony by Dr. Theresa Vail that

had been taken outside the presence of the jury. Dr. Vail was appellant’s treating psychiatrist

in jail. But because she had never discussed the crime with appellant, she had formed no

conclusions about whether he might have been experiencing delusions at the time of the

murders. She said that appellant was capable of forming the intent to commit his actions and

able to understand their consequences. Dr. Vail also noted that, while appellant’s belief that Mays Page 8

he was being poisoned 9 was false, the stomach-aches that he described as being the basis for

this belief are common in anxious people such as appellant.

After deliberating for one hour, the jury found appellant guilty of capital murder.

During the punishment phase, the jury heard brief victim-impact testimony from

Deputy Ogburn’s widow 10 and son. Deputy Harris testified that his injured leg continued to

affect him and that Deputy Ogburn’s wisdom had helped him during his own father’s

terminal illness. Deputy Valentine testified that Deputy Ogburn had been a mentor to him

during his law-enforcement career and that the events during the stand-off had adversely

affected him.

During the defense case-in-chief at punishment, Dr. Vail testified in person. She

diagnosed appellant with depression and “a psychotic disorder not otherwise specified,” a

condition that would make a person more dangerous.11 She did not know if appellant was

mentally ill on the day of the stand-off, and she did not have any indication that he had

previously been treated for a mental illness. Dr. Vail did not begin treating him until four

months after the stand-off, and she never asked him anything about that day.

9 See supra note 7. 10 Mrs. Ogburn, who testified from her wheelchair, said that she suffered a stroke in 1996, and ever since then her husband had taken care of all of her needs. After his death, she had to move and now lives with her sister in The Colony, TX. 11 She stated that a person with the type of psychosis that appellant had might suddenly “go off” when he felt threatened. Dr. Vail said that appellant had already had problems with a fellow inmate, and he thought that the jailers were poisoning his food. Mays Page 9

Several family members testified that appellant was good with children and took care

of his family.12 Appellant’s sister, Sherry Ross, testified that appellant’s older brother had

been executed for murder sometime around 1999. Appellant saw a second brother shot and

killed in 1977. A third brother died of a drug overdose. Ms. Ross testified that appellant had

been committed twice for drug use, but that he had stopped using drugs around 1991 when

he bought his rural property. Another sister, Linda Ross, testified that appellant sometimes

had mental “spells” when his eyes would get wide and he would act suspicious and

distrustful of her. Appellant’s mother also testified that, a couple of times, she had seen

appellant get a “weird look” in his eyes, but he was “a good man . . . a loving father. He

loved children. He always played with the nieces and nephews. He’d give anybody the shirt

off his back, if somebody walked up to him and asked him.” Various friends testified that

appellant was gentle, honest, even-tempered, and never out of control.

Dr. David Self, a psychiatrist, testified that he had reviewed various records, but,

because he had never examined appellant, he could not make a formal diagnosis.

Nonetheless, he opined that appellant had a “chronic and severe psychiatric illness” that was

“centrally involved in the causality of this offense.” 13 He thought that the evidence of the

12 Candis’s daughter, Christina White, testified that she was relieved when appellant married her mother, who was mentally unable to take care of herself. Ms. White noticed that a couple of times appellant suddenly changed moods without any warning. 13 Based on listening to the tape recording of the stand-off, Dr. Self opined that appellant’s statements and actions throughout were consistent with someone who was coming in and out of a delusional state. Mays Page 10

crime showed that appellant was experiencing delusional thinking. Nonetheless, appellant

understood that his actions during the stand-off were wrong and illegal. Dr. Self also thought

that appellant’s heavy methamphetamine use fifteen years earlier might have contributed to

his psychosis because this drug destroys brain nerves and tissue.

After deliberating less than three hours, the jury answered “yes” to the future

dangerousness issue and “no” to the mitigation question. The trial judge then sentenced

appellant to death.

Interviewing Jurors About Pretrial Publicity

In his first point of error, appellant asserts that the trial judge denied him a fair trial

when he refused to poll the jury, immediately before the start of trial, on whether they had

been exposed to or affected by media coverage of the case. Appellant argues that the public

feeling against appellant “saturated” the local population, thus the decision to proceed with

the trial without polling the jurors about this issue was an abuse of discretion and offended

the Eighth and Fourteenth Amendments.

Right before trial, appellant asked the judge to poll the empaneled jurors to determine

whether any of them had read an editorial that had appeared in the Athens Daily Review the

day before.14 Counsel stated that the editorial suggested that law enforcement was watching

14 In his Brief, appellant cites to some fourteen articles, a couple of electronic signs, and an obituary as examples of the “saturating” media coverage. The State asserts that these items are not proper for consideration because they were never presented to the trial court and because of a lack of “citations, or even dates of supposed publication.” We have no doubt that the pretrial media coverage was substantial, but the only question before the trial judge was whether it should poll the jury on its exposure to the single editorial that appellant presented to the judge. Mays Page 11

what happened in this trial.15 The trial court responded,

the Court is not aware, or it’s not been brought to the Court’s attention any evidence that the jury has violated its instructions. And the Court gave its instructions and will continue to emphasize those instructions throughout the trial. And without any evidence brought to the Court, the Court will deny the motion to voir dire the jury of its–regarding any publicity.

Appellant now argues that the failure to let him make an offer of proof on whether the jury

was affected by the media was a constitutional violation.16 This point of error is controlled

by Powell v. State,17 a case in which we rejected a nearly identical claim.

In Powell, the defendant argued that the trial court erred in refusing to poll the

jurors–prior to trial but after they had been empaneled and sworn–about a newspaper article

covering a hearing on the admissibility of DNA evidence.18 Although the trial court refused

to poll the jury about the article, it admonished the jury numerous times not to read any

15 At trial, appellant argued that the editorial appeared “to communicate to the jurors that the law enforcement and policemen of Henderson County are watching this jury to see what the outcome is. And the implication being that–the implication could be drawn that since they’re all residents of Henderson County that they will be–that they may be required in the future to seek protection and service from law enforcement.” The State disagreed with this characterization of the editorial, saying, “I think it just indicates there were two individuals that were known to the editor.” 16 Cf. Henley v. State, 576 S.W.2d 66, 73 (Tex. Crim. App. 1978) (“[T]he trial court’s refusal to grant appellant a pretrial hearing to introduce evidence in support of his motion for change of venue precluded a determination, as contemplated by our law, of the community attitude toward appellant and constituted a deprivation of due process.”). 17 898 S.W.2d 821 (Tex. Crim. App. 1994). 18 Id. at 828. Mays Page 12

newspaper articles concerning the case.19 In that case, we noted that the trial judge could

either deny the defendant’s request for a jury poll concerning the article, or he could poll the

jury and risk exposing them to the existence and contents of the article for the first time. By

refusing to poll the jury about the article and reiterating its admonishments, the trial judge

did his best to preserve the integrity of the jury panel.20

The same is true in this case. The trial court repeatedly instructed the jury panel, the

individual jurors selected, and the empaneled jury not to read, watch, or listen to any media

19 Id. 20 Id. See W.R. Frothingham, Interrogation or Poll of Jurors, During Criminal Trial, as to Whether They Have Read Newspaper Articles Pertaining to Alleged Crime or the Trial, 15 A.L.R.2d 1152, *1 (“The few cases that involve this specific point all uphold the trial court where it refuses to interrogate, or refuses to let a party interrogate, the jurors as to the reading of newspaper articles relating to the trial or the crime. The decisions generally turn on the fact that the trial court had instructed the jury not to read the articles or that there had been no showing by the moving party that the jurors had in fact read them.”); United States v. Jackson, 649 F.2d 967, 976 (3rd Cir. 1981) (“To require the trial court to conduct an individual voir dire of all of the jurors, who have been repeatedly and properly instructed regarding news media reports, whenever there are prejudicial news media reports, rather than to limit the voir dire to jurors, if any, who have seen or heard such reports, is not consistent with the ‘large discretion’ needed by the court to move the trial along both expeditiously and fairly.”); Young v. State, 623 S.E.2d 491, 495-96 (Ga. 2005); Weaver v. State, 763 So. 2d 972, 977 (Ala. Crim. App. 1998), overruled on other grounds by Ex parte Rice, 766 So. 2d 143 (Ala. 1999) (“‘In the absence of any allegation that any juror actually read [newspaper articles about the case], we find no error in the judge’s failure to poll the jury to determine whether or not any juror may have read [newspaper articles.]’”); Carlyle v. State, 428 N.E.2d 10, 13-14 (Ind. 1981) (same); State v. Marshall, 353 A.2d 756, 759 (Conn. 1974) (same). But see State v. Bey, 548 A.2d 846, 870 (N.J. 1988) (holding “that where a timely, properly supported midtrial motion to poll the jury concerning prejudicial publicity is refused, and there is a realistic possibility that information with the capacity to prejudice the defendant may have reached one or more members of the jury, the defendant must be given a new trial.”). In Bey, the problem was that the jury may have read about an extraneous murder that the defendant had committed. The court stated, “the midtrial publicity . . . disclosed that defendant was going to be tried for a second murder after the completion of the first trial. Jurors exposed to this publicity could have discovered that the second murder was committed close in time and in a similar manner to the Alston murder. It is hard to imagine publicity with a greater capacity to prejudice a defendant’s case.” Id. at 869-70. Mays Page 13

stories about the case.

* Once the venire panel was qualified, the judge gave three separate instructions not to read any newspaper articles, watch any television reports, or listen to any radio reports concerning the case. He excused for cause every panel member who was identified as not being able to set aside an opinion formed about the case from media reports.

* During the individual voir dire, the judge asked each juror if he could comply with written instructions not to read any newspaper articles, watch any television reports, or listen to any radio reports concerning the case. Each juror said that he could.

* At the beginning of trial, the judge instructed the jury not to read any newspaper articles, watch any television reports, or listen to any radio reports about the case.

* At the end of each day of trial, before releasing the jury, the trial judge instructed the jury not to read any newspaper articles, watch any television reports, or listen to any radio reports concerning the case. The jury received this instruction on May 5, May 6, May 7, May 8, May 9, May 10, and May 12.

Following Powell, we hold that the trial judge did not abuse his discretion by

declining to poll the jury rather than risk exposing the jury to the existence of the Athens

Daily Review editorial for the first time. In following the guiding rules and principles of

Powell, the trial court preserved the integrity of the jury. Point of error one is overruled.

Issues Related to Mental Health

Appellant raises a number of issues related to his mental health on the day of the

murders.

A. The Constitutionality of Executing the Severely Mentally Ill

In his third point of error, appellant asserts that the execution of a severely mentally

ill person offends the Eighth Amendment ban on cruel and unusual punishment and violates

the Equal Protection Clause of the Fourteenth Amendment. Appellant asserts that the Mays Page 14

testimony of his mental-health experts was uncontroverted and that they established that

appellant is severely mentally ill and his illness “adversely affected” his behavior on the day

of the murders. He argues that the rules announced by the Supreme Court in Atkins v.

Virginia,21 banning the execution of the mentally retarded, and in Roper v. Simmons,22

banning the execution of juvenile offenders, should be extended to the mentally ill. He relies

upon various pronouncements in the international community, and he cites law-review

articles that argue that there is no rational basis for distinguishing the severely mentally ill

from the mentally retarded.

However, appellant does not cite any case from any American jurisdiction that has

held that the Atkins rule or rationale applies to the mentally ill.23 We have previously held,

albeit in unpublished opinions, that “there is no authority from the Supreme Court or this

Court suggesting that mental illness that is a ‘contributing factor’ in the defendant’s actions

21 536 U.S. 304 (2002). 22 543 U.S. 551 (2005). 23 Several state courts have expressly declined to extend the Atkins ruling to the mentally ill in published opinions. See, e.g., Johnston v. State, 27 So.3d 11, 26-27 (Fla. 2010); State v. Ketterer, 855 N.E.2d 48 (Ohio 2006); Matheney v. State, 833 N.E.2d 454 (Ind. 2005); Hall v. Brannan, 670 S.E.2d 87 (Ga. 2008). Others have done so in unpublished opinions. Coleman v. State, No. W2007- 02767-CCA-R3-PD, 2010 WL 118696 (Tenn. Crim. App. Jan. 13, 2010) (not designated for publication); Johnson v. Comm., No. 2006-SC-000548-MR, 2008 WL 4270731 (Ky. Sept. 18, 2008) (not designated for publication). Federal courts have also rejected appellant’s argument for various reasons. See, e.g., ShisInday v. Quarterman, 511 F.3d 514 (5th Cir. 2007) (claim procedurally barred “for failure to present the issue to the state court. In addition, this circuit’s precedent precludes that argument, unless the petitioner contends he is insane and therefore incompetent to be executed.”); In re Neville, 440 F.3d 220, 221 (5th Cir. 2006) (citing In re Woods, 155 Fed. Appx. 132, 136 (5th Cir. 2005) and stating that applicant’s claim of mental illness as a bar to execution did not rely upon a new rule of constitutional law made retroactive by the Supreme Court ). Mays Page 15

or that caused some impairment or some diminished capacity, is enough to render one exempt

from execution under the Eighth Amendment.” 24 Furthermore, appellant has not

demonstrated that there is a trend among state legislatures to categorically prohibit the

imposition of capital punishment against mentally ill offenders.25 Finally, appellant has

failed to show that, if he did suffer from some mental impairment at the time of these

murders, that impairment was so severe that he is necessarily and categorically less morally

culpable than those who are not mentally ill. We, therefore, overrule point of error number

three.

B. “Diminished Capacity” Instruction

In his fifth point of error, appellant asserts that the trial judge violated his statutory26

and constitutional due-process rights by giving the jury the following instruction:

You are further instructed that you may consider any mental condition, if any,

24 Tabler v. State, No. AP-75,677, 2009 WL 4931882, *1 -2 (Tex. Crim. App. Dec. 16, 2009) (not designated for publication); see also Sprouse v. State, No. AP-74,933, 2007 WL 283152, *8 (Tex. Crim. App. Jan. 31, 2007) (not designated for publication); Battaglia v. State, No. AP-74,348, 2005 WL 1208949 at *10 & n. 39 (Tex. Crim. App. May 18, 2005) (not designated for publication) (citing Colburn v. State, 966 S.W.2d 511 (Tex. Crim. App. 1998)). 25 See Atkins, 536 U.S. at 312 (“the ‘clearest and most reliable objective evidence of contemporary values is the legislation enacted by the country’s legislatures.’”) (quoting Penry v. Lynaugh, 492 U.S. 302, 331 (1989)); see also Tabler, 2009 WL 4931882, *2 (noting, in rejecting claim that mentally ill offenders should be exempt from execution, that defendant “does not demonstrate that there is a trend among state legislatures to categorically prohibit the imposition of capital punishment against mentally ill offenders.”). 26 Appellant relies on article 36.14 of the Texas Code of Criminal Procedure, which requires the trial court to distinctly set forth the law applicable to the case, and article 38.36(a), which permits the admission of evidence to show the accused’s state of mind at the time of the offense as the legal basis for his complaint. Mays Page 16

of the defendant, that he did or did not act intentionally or knowingly in committing the alleged offense, but you cannot consider any mental condition, if any, that the defendant lacked the capacity to act intentionally or knowingly.

At trial, appellant filed a written objection to the court’s charge for failing to instruct

the jury that evidence of mental illness may be considered in determining whether or not he

acted intentionally or knowingly. Appellant did not suggest specific language, so presumably

the trial judge drafted the above instruction in response to appellant’s written request.27

Appellant argues on appeal that his “defense was that his active, serious mental illness

prevented him from knowingly or intentionally killing at the moment he pulled the trigger.” 28

But that was not his defense at trial. No witness testified that appellant–with or without a

mental illness–did not knowingly or intentionally shoot Deputy Ogburn with a single shot

right between the eyes. Indeed, the evidence showed that immediately after he shot his first

victim, appellant shouted, “I got one. Where’s the other one?” before he shot another deputy

in the head. None of appellant’s experts testified that he did not intend these actions. Indeed,

appellant’s trial counsel forthrightly admitted during his closing argument at the guilt stage

that, “yes, a person can have a paranoid delusion, suffer from paranoia and intentionally and

knowingly do what they want to do, in this case, shoot two police officers.” At trial, defense

27 At the end of his nine-page list of written objections to the jury charge, appellant, in his objection number 25, set out eleven reasons why he opposed any limitation upon “the inference the jury may draw from the evidence of mental disease or defect.” Thus, although appellant requested a jury instruction on how mental illness may be considered in determining whether he acted intentionally or knowingly, and the trial judge gave such an instruction, appellant then complained about the wording of the actual instruction given. 28 Appellant’s Brief at 49. Mays Page 17

counsel stated that he offered the mental-illness testimony as “just an explanation about what

went on out there.” Appellant’s mental-illness evidence explained his actions and

demonstrated his motive for killing the deputies–paranoia, suspicion, and distrust of the

officers. It did not rebut the culpable mental state of “intentional or knowing” conduct or

raise any legal justification or exoneration for the murders.

Although appellant acknowledges that there is no “diminished capacity” defense in

Texas,29 he nonetheless argues that the trial judge erred by instructing the jury that it was not

permitted to consider mental-illness evidence that appellant “lacked the capacity to act

intentionally or knowingly.”

Appellant cites to this Court’s decision in Ruffin, but that case is not analogous. In

Ruffin, the defendant (and others) testified that he suffered from both auditory and visual

delusions. He testified that when he shot at the police officers, he thought he was shooting

at “Muslims.” 30 He literally saw and heard Muslims. Under those circumstances, this Court

held that he might be entitled to offer expert psychiatric testimony that some people who

suffer from serious mental diseases and delusions really can and do “see” and “hear”

Muslims (or other figments of their imagination) even though they do not exist. This

evidence was relevant to rebut the element that Ruffin intended to shoot police officers and

would, if believed, lessen the crime from a first-degree aggravated assault of a police officer

29 See Ruffin v. State, 270 S.W.3d 586, 593, 596 (Tex. Crim. App. 2008); Jackson v. State, 160 S.W.3d 568, 573 (Tex. Crim. App. 2005). 30 Ruffin, 270 S.W.3d at 594. Mays Page 18

to a second-degree aggravated assault (an intentional shooting at “Muslims”).31

In the present case, appellant offered no evidence to suggest that he intended to shoot

anything or anyone other than the police officers that he killed.32 Appellant offered no

evidence to suggest that he did not intend to shoot a person. 33 All of his mental-illness

evidence showed why he intentionally and knowingly killed the deputies: He was paranoid

and thought they had “mistreated” him. But motive is not an element of murder or capital

murder. Such mental-illness testimony may be relevant for mitigation purposes during the

punishment phase, but expert testimony that does not directly rebut the culpable mental state

usually may be excluded at the guilt stage.34

31 Id. at 596-97. 32 Such evidence, if it had been proffered and admitted, would directly rebut the element that elevated murder under TEX . PENAL CODE § 19.02 to the capital murder of a police officer under TEX . PENAL CODE § 19.03(a)(1). 33 Such evidence, if it had been proffered and admitted, would directly rebut the culpable mental element of either capital murder or murder. Id. 34 See Ruffin, 270 S.W.3d at 595-96 (expert testimony concerning a defendant’s mental illness “may, in a particular case, be excluded under other evidentiary rules, such as Rules 403 or 703-705, if the probative value of the proffered evidence is substantially outweighed by the danger of unfair prejudice, if the expert is insufficiently qualified, or the testimony is insufficiently relevant or reliable under our state’s guidelines for expert testimony. Such evidence may also be excluded if it does not truly negate the required mens rea.”); Jackson, 160 S.W.3d at 574; cf., Ward v. State, No. AP-75,750, 2010 WL 454980 at *2 (Tex. Crim. App. Feb. 10, 2010) (not designated for publication) (trial court did not err in excluding expert’s testimony that capital-murder defendant was psychotic and had paranoid delusions which led him to believe that there was a conspiracy by city officials to harm him and caused him to murder city employee); see also United States v. Cameron, 907 F.2d 1051, 1067-68 (11th Cir. 1990) (“Evidence offered as ‘psychiatric evidence to negate specific intent’ is admissible . . . when such evidence focuses on the defendant’s specific state of mind at the time of the charged offense,” but holding that defendant failed to demonstrate how her expert’s generalized psychiatric testimony would negate intent in drug-trafficking prosecution). Mays Page 19

In sum, the trial judge was not required to admit any expert testimony concerning

appellant’s mental illness during the guilt stage because it did not directly rebut his culpable

mens rea.35 Thus, appellant was not entitled to any jury instruction concerning that evidence.

But having requested such an instruction, appellant has not shown that he suffered any harm

when the trial judge gave the jury a legally correct, if unnecessary, instruction concerning the

use of that evidence. Appellant’s fifth point of error is overruled.

C. “Mistake of Fact” Instruction

In his seventh point of error, appellant asserts that the trial judge erred by refusing to

submit a jury instruction concerning mistake of fact based on appellant’s “paranoid ideations

and psychotic delusions.” He argues that this evidence entitled him to an instruction on the

statutory mistake-of-fact defense 36 because he may have believed that the deputies he killed

were not acting in the discharge of their official duties. He posits that the record suggests

that appellant “mistakenly but honestly believed that the officers were rogue cops, out to

harm or lynch him and his wife, and perhaps take his property.”

First, appellant does not cite to any portion of the record that would support such a

belief.37 Nor did he cite the trial judge to any such evidence in the record.38 His assertion

35 See Ruffin, Jackson, and Ward, supra. 36 T EX . PENAL CODE § 8.02(a) (“It is a defense to prosecution that the actor through mistake formed a reasonable belief about a matter of fact if his mistaken belief negated the kind of culpability required for commission of the offense.”). 37 He states that “a reasonable juror might conclude that Mays actually believed that a vast and brutal conspiracy of armed men, abusing their status [as] peace officers had killed his three Mays Page 20

is based entirely upon speculation about what appellant might have been thinking or could

have thought, but there is no evidence that supports a conclusion that appellant did believe

the officers were “rogue cops” who were not acting in lawful discharge of an official duty.

The only evidence that directly supports appellant’s paranoid state of mind at the time of the

murder was his statement to reporters that he felt “mistreated.” But that evidence does not

raise any “mistake” of a specific historical fact that, if true, would negate his intent to kill

Deputy Ogburn. The issue in Posey v. State,39 as in the present case, was whether the

defendant was entitled to an jury instruction on the defensive issue of “mistake of fact” when

he did not “properly preserve” that issue by making a timely and adequate request or

objection in the trial court.40 The purpose of the Posey rule is to prevent a party from

“sandbagging” the trial judge by failing to apprise him, and the opposing party, of what

brothers. There was a religious fervor in Mays’ words and actions. Some of Mays’ words [during the stand-off] did not seem to fit into the context in which they were uttered. The mental health experts thought Mays had a thought disorder.” Appellant’s Brief at 59. 38 The entirety of appellant’s written objection at trial was as follows: “The Defendant objects to the Court’s failure to instruct the jury on the law of mistake of fact.” This objection is not sufficient to direct the trial judge’s attention to the evidence upon which appellant would rely for entitlement of such an instruction. See Goodrich v. State, 156 S.W.3d 141, 147-48 (Tex. App.—Dallas 2005, pet. ref’d) (“When requesting an instruction on the defense of mistake of fact, the party must specify the fact alleged to have been mistaken.”); Williams v. State, 930 S.W.2d 898, 903 (Tex. App.—Houston [1st Dist.] 1996, pet. ref’d). Absent a proper request, the trial judge does not err by failing to instruct the jury on the defense of mistake of fact. Posey v. State, 966 S.W.2d 57, 62 (Tex. Crim. App. 1998). 39 966 S.W.2d 57 (Tex. Crim. App. 1998). 40 Id. at 62. Mays Page 21

defensive jury instructions the party wants and why he is entitled to them.41 Because

appellant failed to tell the trial judge what specific fact he was mistaken about, he was not

entitled to an instruction on this defensive issue.42

Second, even if appellant had thought that the officers were out to harm or lynch him

and his wife (rather than arrest him), that belief was not a reasonable one. The statutory

mistake-of-fact defense explicitly requires that the defendant’s mistaken belief about the

existence of a fact is a “reasonable” one “that would be held by an ordinary and prudent man

in the same circumstances as the actor.” 43 Although the “reasonableness” of a mistaken

belief is generally a question for the jury,44 appellant cannot rely upon evidence of his

paranoia and psychotic thinking to raise a “reasonable” mistaken belief concerning the

officers’ intentions.45 The law examines “reasonableness” from the perspective of an

41 Id. at 63; see also Tolbert v. State, ___ S.W.3d __, ___, No. PD-0265-09, 2010 WL 935377, * 2 n.6 (Tex. Crim. App. March 17, 2010) (“Our decision in Posey was intended “to discourage parties from sandbagging or lying behind the log” and to discourage a defendant from retrying the case on appeal under a new defensive theory, effectively giving the defendant “two bites at the apple.”). 42 See Goodrich, 156 S.W.3d at 147-48. 43 T EX . PENAL CODE § 1.07(42); see Winkley v. State, 123 S.W.3d 707, 712 (Tex. App.—Austin 2003, no pet.) (citing Bang v. State, 815 S.W.2d 838, 841 (Tex. App.—Corpus Christi 1991, no pet.)). 44 See Granger v. State, 3 S.W.3d 36, 38 (Tex. Crim. App. 1999) (“Whether appellant’s mistaken belief was ‘reasonable,’ so as to comport with the requirements of § 8.02, should have been left for the jury to decide as trier of fact.”). 45 See, e.g., King v. State, 919 S.W.2d 819, 821-22 (Tex. App.—El Paso 1996, no pet.) (defendant not entitled to instruction on mistake of fact when he testified that he thought his wife was dead at the time he choked her with an electrical cord because any such belief was manifestly Mays Page 22

ordinary and prudent person, not from that of a paranoid psychotic who is, by psychiatric

definition, “unreasonable” in his imagined suspicions, delusions, and fears. Mental disease

is not an attribute of the reasonable, ordinary and prudent person. Thus, although the general

rule is that the jury must determine the relative credibility of the evidence raising a

“reasonable belief” about a fact, reliance upon paranoid beliefs and delusions negates the

type of reasonableness that an ordinary and prudent person would have under the

circumstances.46

Third, any mistake of fact that appellant might have made about the officers’

intentions or their right to arrest him did not negate the kind of culpability required for the

commission of capital murder. The culpable mental state in section 19.03(a)(1) applies to

the intentional or knowing murder of a peace officer whom the actor knows is a peace

officer.47 To prove either capital murder or aggravated assault of a peace officer, the State

must show that the peace officer is “acting in the lawful discharge of an official duty,” but

unreasonable, as an ordinary and prudent person could and would have easily verified that fact first); See People v. Mejia-Lenares, 135 Cal. App. 4th 1437, 1454, 38 Cal. Rptr. 3d 404, 415 (Cal. Ct. App. 2006) (stating that a mistake-of-fact defense “cannot be predicated upon delusions which are the product of mental illness.”). 46 Id. 47 T EX . PENAL CODE § 19.03(a)(1) (murder of a peace officer requires proof that the defendant committed murder as defined in section 19.02(b)(1) and “the person murders a peace officer or fireman who is acting in the lawful discharge of an official duty and who the person knows is a peace officer or fireman”). Mays Page 23

the defendant need not know that specific fact.48 Thus, any mistake that appellant might have

made about what the officers’ intentions were, or whether they were acting in the lawful

discharge of their official duty in arresting him, would not negate the required culpability for

capital murder.49

For all of these reasons, we overrule appellant’s seventh point of error.

D. Justification Instructions

In appellant’s eighth point of error, he claims that the trial judge erred in refusing to

instruct the jury on a variety of justification defenses, including necessity, “defense of home

and property,” and defense of another. As with point of error seven, appellant has forfeited

any error on appeal because he failed to specify what facts or legal theory would support

submission of any of these defenses.50 Merely submitting a multi-page list of bare-bones

48 See Salazar v. State, 643 S.W.2d 953, 956 (Tex. Crim. App. 1983) (“[A] conviction [for aggravated assault on a peace officer] does not depend on whether the arrest was legal, or the defendant’s belief about its legality. . . . [W]hile the State must still prove the defendant knew or had been informed that he was assaulting a peace officer, proof that he also knew the officer was ‘lawfully discharging an official duty’ is unnecessary”); see also Montoya v. State, 744 S.W.2d 15, 30 (Tex. Crim. App. 1987), overruled on other grounds, Cockrell v. State, 933 S.W.2d 73 (Tex. Crim. App. 1996) (evidence in a capital-murder trial that the police officer was making an unauthorized warrantless arrest did not disprove that the officer was in the lawful discharge of an official duty). 49 See id. 50 See Lankston v. State, 827 S.W.2d 907, 909 (Tex. Crim. App. 1992) (“As regards specificity [of an objection], all a party has to do to avoid the forfeiture of a complaint on appeal is to let the trial judge know what he wants, why he thinks himself entitled to it, and to do so clearly enough for the judge to understand him at a time when the trial court is in a proper position to do something about it.” ); Starks v. State, 127 S.W.3d 127, 133 (Tex. App.—Houston [1st Dist.] 2003, pet. dism’d) (to preserve a complaint about the trial court’s failure to instruct on self-defense, a defendant must make a timely objection that specifically states the legal basis for the objection); Mays Page 24

objections to the failure to include various statutory defenses and affirmative defenses does

not sufficiently direct the trial judge’s attention to the specific facts or theory supporting

submission of such a charge.51 As this Court noted almost one-hundred years ago, a

defendant who files a laundry-list of written objections to the charge must also specify the

legal or factual reasons why he believes himself entitled to such special instructions.52

Unexplained lists of objections and requests for instructions risk being considered

“sandbagging” objections that fail to preserve any issue for review.53

Second, this point of error is multifarious because it raises more than one specific

Williams v. State, 930 S.W.2d 898, 903 (Tex. App.—Houston [1st Dist.] 1996, no pet.) (defendant’s bare request for an instruction on mistake of fact was too general to preserve error because he failed to comply with art. 36.14 and “distinctly specify” what fact he was purportedly mistaken about). Appellant’s objections were as follows: The Defendant objects to the Court’s failure to instruct the jury on the law of defense of another. The Defendant objects to the failure to instruct the jury on the law of defense of home and property. The Defendant objects to the Court’s failure to instruct the jury on the law of necessity. 51 Appellant filed an eight-page laundry list of bare-bones objections to the jury charge. 52 Wilson v. State, 189 S.W. 1071, 1072 (Tex. Crim. App. 1916) (“Appellant filed with the judge several grounds of objections to his charge. He also requested some 11 special charges, all of which were refused, except the one to disregard the second and third counts above mentioned, which was given. In neither requested charge, nor in any way connected therewith, did he give any reason or statement why it should be given. This is essential in even a felony case.”). 53 See TEX . CODE CRIM . PROC. art. 36.14 (stating that, before the court’s charge is given to the jury, “the defendant or his counsel shall have a reasonable time to examine the same and he shall present his objections thereto in writing, distinctly specifying each ground of objection. Said objections may embody errors claimed to have been committed in the charge, as well as errors claimed to have been committed by omissions therefrom or in failing to charge upon issues arising from the facts.”). This article requires the defendant to “distinctly specify” the ground–or basis–of his objection to the charge and the ground–or basis–for any requested instructions that arise from the facts in evidence. See Williams, 930 S.W.2d at 903. Mays Page 25

complaint and risks rejection on that basis alone.54 In this single point, appellant has raised

a potpourri of complaints concerning the failure to give instructions on (1) necessity, (2)

defense of another, (3) defense of “home and property.”

Third, appellant fails to acknowledge that each of these justification defenses requires

that the defendant reasonably believe that his conduct is immediately necessary to avoid a

greater harm. As with the statutory mistake-of-fact defense, a “reasonable belief” is one that

would be held by an ordinary and prudent person, not by a paranoid psychotic.55 Appellant’s

repeated claim that “his paranoid ideations and active psychosis” raise a “reasonable belief”

that his actions were justified is supported neither by law nor common sense.

Texas law does not recognize the “ordinary and prudent” paranoid psychotic for

purposes of Penal Code justification defenses. The only affirmative defense available under

Texas law for those who commit crimes while suffering from an abnormal mental disease

54 See, e.g., Wood v. State, 18 S.W.3d 642, 649 n.6 (Tex. Crim. App. 2000). 55 See TEX . PENAL CODE § 9.22 (Necessity) (“Conduct is justified if the actor reasonably believes the conduct is immediately necessary to avoid imminent harm . . . .”); id. § 9.31 (Self- Defense) (“a person is justified in using force against another when and to the degree the actor reasonably believes the force is immediately necessary . . . .”); id. § 9.32 (Deadly force in defense of a person) (“A person is justified in using deadly force against another . . . when and to the degree the actor reasonably believes the deadly force is immediately necessary . . . .”); id. § 9.33 (Defense of third person) (“A person is justified in using force or deadly force against another to protect a third person if, under the circumstances as the actor reasonably believes them to be . . . .”); id. § 9.41 (Protection of one’s own property) (“A person in lawful possession of land or tangible, movable property is justified in using force against another when and to the degree the actor reasonably believes the force is immediately necessary . . . .”). Mays Page 26

or defect is insanity under Section 8.01.56 Appellant did not assert an insanity defense at trial,

and he cannot now claim entitlement to some other statutory defense based upon his mental

disease or defect.57 Appellant argues that, even though the Penal Code “does not explicitly

contain and carry forward all of the traditional common law doctrines regarding

justification,” 58 we should expand upon the Penal Code to embody a free-standing “castle

doctrine” that would permit property owners to kill police officers who come on their

56 T EX . PENAL CODE § 8.01 (“It is an affirmative defense to prosecution that, at the time of the conduct charged, the actor, as a result of severe mental disease or defect, did not know that his conduct was wrong.”). 57 See Jackson v. State, 160 S.W.3d 568, 572 (Tex. Crim. App. 2005) (“Texas law does not recognize a lesser form of the insanity affirmative defense.”). Appellant attempts to analogize his case to Darty v. State, 994 S.W.2d 215 (Tex. App.—San Antonio 1999, no pet.). In that case, the defendant testified that, during a traffic stop, the policeman threw him on his neighbor’s car, beat him with his flashlight, and placed him in a choke hold. Id. at 218. The defendant denied kicking the officer, but admitted that he used some force to escape the chokehold because he could not breathe. Id. An ordinary and prudent person in the same situation might have thought this use of force was reasonable. But there was no evidence in Darty that the defendant was psychotic or paranoid or otherwise acting under unreasonable delusions of persecution. The present case is analogous to the situation in Zwack v. State, 757 S.W.2d 66 (Tex. App.—Houston [14th Dist.] 1988, pet. ref’d), in which the court of appeals held that the defendant–who claimed that he had paranoia and delusions of persecution–was not entitled to an instruction on self-defense. In Zwack, the defendant was charged with attempted capital murder of a police officer for shooting the officer who had pulled his truck over. Zwack entered a plea of insanity but also requested a jury charge on “self defense based on an insane delusion.” The court of appeals noted, “There was strong evidence that Appellant was suffering under a paranoid delusion that he was being ‘ambushed’ by police officers who intended to kill him,” rather than simply arrest him. Id. at 70. But, as the court noted, even if the circumstances as perceived by the defendant were true, he would not be entitled to a self-defense instruction because he had failed to offer any evidence that his use of force was justified, a “reasonable person” would not have retreated, and the deadly force was immediately necessary to protect the defendant from the other’s use of unlawful deadly force. Id. The same is true here: appellant’s use of force was not justified; a “reasonable person” would have retreated (or surrendered); and the officers did not initially use unlawful deadly force against him. See TEX . PENAL CODE § 9.31. 58 Appellant’s Brief at 64-68. Mays Page 27

property in response to a 911 “domestic violence-gunshots” call. This we would decline to

do even if we had the authority to create a nonstatutory justification defense.59

For all of the above reasons, we overrule appellant’s eighth point of error.

E. Lesser-Included Offenses Raised by Mental-Health Evidence

In his tenth point of error, appellant contends that the trial court erred by refusing to

submit charges on manslaughter and criminally negligent homicide because a reasonable

juror might draw various inferences that could support the notion that Appellant acted

recklessly or negligently, rather than intentionally or knowingly. Appellant notes that if any

evidence, regardless of its strength or credibility, raises the issue that the defendant was

guilty only of the lesser offense, then the charge must be given.60 He posits that a reasonable

juror “might deem Appellant’s act of shooting Officer Ogburn a reckless one, rather than the

result of a conscious decision to commit an unlawful killing” because of appellant’s

psychotic paranoia.61 Alternatively, he argues that “the testimony of Dr. Vail, who diagnosed

an active psychosis, Dr. Kessner, who found paranoid ideations and a thought disorder,

combined with Officer Valentine’s testimony describing how a strange look suddenly came

59 See Giesberg v. State, 984 S.W.2d 245, 250 (Tex. Crim. App. 1998) (“[B]ecause the authority to establish what constitutes a defense rests solely with the Legislature, this Court concludes a defense which is not recognized by the Legislature as either a defense or as an affirmative defense does not warrant a separate instruction.”); Willis v. State, 790 S.W.2d 307, 314 (Tex. Crim. App. 1990). 60 See Saunders v. State, 840 S.W.2d 390, 391 (Tex. Crim. App. 1992). 61 Appellant’s Brief at 80. Mays Page 28

over Mr. Mays’ face combine to raise the issue of a failure to perceive risk.” 62

The culpable mental state for capital murder, however, refers to the result of the

conduct–a person’s death–not to the nature of that conduct.63 That is, there must be some

affirmative evidence,64 from some source, that at the moment appellant shot Deputy Ogburn

in the head with his deer rifle, he did not intend his death or know that it was reasonably

certain to occur.65 Appellant fails to point to any evidence in the trial record that

affirmatively shows that he was either reckless or negligent about the likelihood that a death

would occur at the moment he shot Deputy Ogburn. Indeed, appellant’s very first words

immediately after shooting the deputy were: “Where’s the other one? I’ll take him out,

where is he?” At most, appellant’s evidence of a mental illness or impairment might

demonstrate some confusion about the circumstances surrounding his over-all conduct during

the stand-off, but none of that evidence affirmatively shows that appellant did not intend to

62 Id. at 82. 63 See Cook v. State, 884 S.W.2d 485, 490 (Tex. Crim. App. 1994). 64 See Hampton v. State, 109 S.W.3d 437, 441 (Tex. Crim. App. 2003) (before one is entitled to an instruction on a lesser-included offense, there must be “affirmative” evidence “directly germane” to the existence of the lesser-included offense). 65 See Burnett v. State, 865 S.W.2d 223, 229 (Tex. App.—San Antonio 1993, pet. ref’d). In Burnett, the court of appeals explained, for a defendant to be entitled to a jury charge on involuntary manslaughter or criminally negligent homicide, the record must contain “some” evidence that the defendant did not intend the resulting death or know that it was reasonably certain to occur. If such evidence is present, the record must then be examined to see if it indicates whether the defendant was aware or unaware of the risk that his conduct could result in the unintentional killing of the deceased. Id. Mays Page 29

kill when he shot Deputy Ogburn. Appellant’s tenth point of error is overruled.

Other Guilt-Stage Jury-Instruction Claims

A. Sudden Passion and Provocation Instruction

In his ninth point of error, appellant contends that the trial judge erred in failing to

instruct the jury on the “traditional” defenses of sudden passion and provocation. He asserts

that “[s]udden passion and provocation have always reduced the degree of criminal

culpability in Texas.” 66 Thus, the Legislature did not have the authority to eliminate the

issues of “sudden passion” and “provocation” during the guilt phase of a capital-murder

trial.67 He relies upon an 1895 case, Larson v. State,68 and a 1903 case, Vann v. State,69 for

the proposition that those cases placed “little, if any, reliance on any statutory or

constitutional provision” in stating that the defendants were entitled to jury instructions on

manslaughter.70 In both of those cases, however, this Court did rely upon extant statutory

66 Appellant’s Brief at 75. 67 In the 1994 Penal Code revisions, the Texas Legislature repealed the former voluntary manslaughter statute and made sudden passion an issue to be considered at the punishment stage of a murder trial. See Moore v. State, 969 S.W.2d 4, 8 (Tex. Crim. App. 1998). But evidence of “sudden passion” or provocation is admissible and relevant to the mitigation issue. See Wesbrook v. State, 29 S.W.3d 103, 113 (Tex. Crim. App. 2000) (“The Legislature, through its broad power to classify crimes and those who stand accused of crimes, chose not to permit the defense of “sudden passion” in the context of capital murder”; stating that “the issue of ‘sudden passion’ could be considered only as a mitigating circumstance for the jury when deciding the second punishment issue.”). 68 29 S.W. 782 (Tex. Crim. App. 1895). 69 77 S.W. 813 (Tex. Crim. App. 1903). 70 Appellant’s Brief at 75. Mays Page 30

law, explicitly in Larson and implicitly in Vann.71

There is no free-floating, non-statutory, common-law right to an instruction on sudden

passion and provocation in a capital-murder trial. We have previously rejected appellant’s

contention,72 and his present arguments fail to persuade us that the Texas Legislature did not

have authority to eliminate the former statutory offense of “sudden passion” manslaughter

from consideration in the capital-murder context. We overrule point of error nine.

B. Constitutionality of “Lawful Discharge of an Official Duty”

In his eleventh point of error, appellant claims that the aggravating element of capital

murder–the intentional killing of a peace officer “who is acting in the lawful discharge of an

official duty”–is unconstitutionally vague. At trial, appellant moved for a directed verdict

claiming that the evidence was insufficient to prove that the officers were discharging an

official duty, and he objected to the trial court’s failure to define the phrase “acting in the

lawful discharge of an official duty.” He does not cite to any portion of the trial record where

he asserted that the phrase was “unconstitutionally vague.” Appellant did not make this

71 See Larson, 29 S.W. at 783 (holding that “it has been held by this court that the adequate causes laid down in the statutes to create such passion . . .”) (emphasis added); Vann, 77 S.W. at 816 (“Appellant contends, and we think correctly, that he had the right to have a charge on manslaughter, unfettered by a charge on provocation with the apparent intention to kill; and also that, under the law and the facts, he was entitled to a clear and unequivocal charge on self-defense, unlimited by the law in regard to provoking a difficulty.”) (emphasis added). 72 See Wesbrook, 29 S.W.3d at 112-13 (“The Legislature is vested with the lawmaking power of the people in that it alone ‘may define crimes and prescribe penalties.’ . . . The Legislature, through its broad power to classify crimes and those who stand accused of crimes, chose not to permit the defense of “sudden passion” in the context of capital murder.”). Mays Page 31

constitutional vagueness argument in the trial court; therefore, his complaint is not preserved

for review.73

At any rate, the term is not unconstitutionally vague. As we have previously stated

in Montoya v. State,74 another capital-murder case,

Whether [the deceased police officer] was making a lawful arrest is not relevant to determining if [he] was acting in the lawful discharge of his official duties. A police officer is still acting within the lawful discharge of his official duties when he makes an unlawful arrest, so long as he is acting within his capacity as a peace officer.75

More recently, we have repeated that “as long as the officer was acting within his capacity

as a peace officer, he was acting within the lawful discharge of his official duties.” 76 It is

undisputed in this case that all of the officers involved, beginning with Deputies Valentine,

Sanders, Ward, Ogburn, and Habelt, were acting in the lawful discharge of their duties as

police officers. Appellant may have felt that the officers shouldn’t have responded to the 911

call or shouldn’t have tried to arrest him, but he never suggested that these men were not

police officers or that they were not acting within their capacity as police officers during the

stand-off.

73 See TEX . R. APP. P. 33.1(a)(1); see also Curry v. State, 910 S.W.2d 490, 496 (Tex. Crim. App. 1995) (appellant waived his challenge to statute as vague as applied because he did not specifically object at trial). 74 744 S.W.2d 15 (Tex. Crim. App. 1987), overruled on other grounds, Cockrell v. State, 933 S.W.2d 73 (Tex. Crim. App. 1996). 75 Id. at 29; see also Hughes v. State, 897 S.W.2d 285, 297-98 (Tex. Crim. App. 1994); Guerra v. State, 771 S.W.2d 453, 460-61 (Tex. Crim. App. 1988). 76 Hall v. State, 158 S.W.3d 470, 474 (Tex. Crim. App. 2005). Mays Page 32

Furthermore, the phrase “lawful discharge of an official duty” is not statutorily

defined, but it does have an ordinary meaning that jurors can apply using their own common

sense:77 The person killed was a police officer who was, at the time of his death, lawfully

acting as a police officer. We overrule appellant’s eleventh point of error.

C. The Trial Court’s Instruction on Reasonable Doubt

In his sixth point of error, appellant complains that the trial judge “diluted” the

reasonable-doubt standard in his instructions to the jury. At trial, he objected that the trial

court failed to explain to the jurors that the reasonable-doubt standard is a “high burden of

proof that may be set by each individual juror at any degree of certainty less than absolute

certainty.” He also objected that the jury instructions failed to instruct the jury on

“preponderance of the evidence” and “clear and convincing evidence” and explain how those

standards differ from proof beyond a reasonable doubt.

The trial judge instructed the jury as follows:

It is not required that the prosecution prove guilt beyond all possible doubt. It is required that the prosecution’s proof excludes all “reasonable doubt” concerning the defendant’s guilt.

In Woods v. State,78 we held that giving this same instruction to the jury in a capital-

77 See Daniels v. State, 754 S.W.2d 214, 219 (Tex. Crim. App. 1988) (noting that, when words are not defined, they are ordinarily given their plain meaning unless the statute clearly shows that they were used in some other sense); Ely v. State, 582 S.W.2d 416, 419 (Tex. Crim. App. 1979) (stating that, in the absence of special definitions, statutory language under attack as vague can be measured by common understanding and practices or construed in the sense generally understood). 78 152 S.W.3d 105, 115 (Tex. Crim. App. 2004); see also Ochoa v. State, 119 S.W.3d 825, 828-29 (Tex. App.—San Antonio 2003, no pet.) (collecting Texas cases holding that giving an Mays Page 33

murder trial was not an abuse of discretion. Appellant cites Woods, but argues that we failed

to include any discussion of Victor v. Nebraska in that case.79 In Victor, the Supreme Court

held that the standard of “beyond a reasonable doubt” is a due-process requirement in a

criminal case, but that the Constitution neither prohibits trial judges from defining reasonable

doubt nor requires them to do so.80 Appellant fails to explain how Victor affects our

reasoning in Woods. Both cases state that courts may or may not define the term “reasonable

doubt.” In Texas, we have said that it is “the better practice” not to define that term, and

Victor does not suggest otherwise.81 We overrule appellant’s sixth point of error.

Issues Relating to the Punishment Stage

A. Sufficiency of the Evidence to Support the Finding of Future Dangerousness

In his fourteenth point of error, appellant contends that the evidence is insufficient to

support the jury’s finding on the future-dangerousness issue.82 Appellant states that “[t]he

crime facts in this case are not enough to sweep away the good in Mays’[s] life history” and

instruction regarding “all possible doubt” is not error). 79 511 U.S. 1 (1994). 80 Id. at 5. 81 See Paulson v. State, 28 S.W.3d 570, 573 (Tex. Crim. App. 2000) (citing Victor and noting that “the better practice is to give no definition of reasonable doubt at all to the jury”). 82 In this point of error, appellant devotes much of his discussion to purported constitutional deficiencies in the future-dangerousness special issue. To the extent that appellant raises matters other than the legal sufficiency of the evidence to support the first special issue, we find this point of error multifarious and decline to address those matters. See Wood v. State, 18 S.W.3d 642, 649 n.6 (Tex. Crim. App. 2000). Further, arguments similar to those made by appellant were recently rejected in Russeau v. State, 291 S.W.3d 426, 433-34 (Tex. Crim. App. 2009). Mays Page 34

that “[w]ith the tools and facilities at the disposal of Texas correctional personnel, it would

be a rare prisoner indeed who could present much of a threat that would ‘continue’ over

time.” These arguments were presented to, but rejected by, the jury at the punishment stage.

The evidence at trial showed that appellant, without warning, suddenly turned from

a calm, cool, and polite gentleman discussing matters with an inquiring deputy into a violent

sharpshooter who intentionally killed two police officers and seriously wounded a third

during an hour-long stand-off involving more than a dozen officers. The violence began

when Deputy Valentine told appellant that he was under arrest; appellant refused to obey,

listen to, or reason with an authority figure. His reaction to the exercise of authority by a law

enforcement officer was violent. Appellant justified his murderous conduct by stating that

he had been “mistreated” by the officers. The jury convicted appellant of capital murder, and

its only two punishment choices were prison or death. Prison is a part of “society,”and the

future-dangerousness issue includes consideration of appellant’s likely future behavior while

in prison for life. The prison system is run by law enforcement and correctional officials, and

any person sentenced to prison must obey those authority figures, regardless of whether they

feel they are being “mistreated.”

A jury is permitted to consider a variety of factors when determining whether a

defendant will pose a continuing threat to society.83 Viewed in the light most favorable to

83 See Keeton v. State, 724 S.W.2d 58, 61 (Tex. Crim. App. 1987). Among those factors are: (1) the circumstances of the capital offense, including the defendant’s state of mind and whether he was working alone or with other parties; (2) the calculated nature of the defendant’s acts; (3) the forethought and deliberateness exhibited by the crime’s execution; (4) the existence of a prior Mays Page 35

the jury’s verdict, the circumstances of this offense, including the evidence that he

deliberately killed two police officers, as well as the evidence of appellant’s prior

confrontations with authority figures, support a finding that there is a probability that

appellant would commit future acts of violence (quite possibly against authority figures) in

prison.84 We overrule appellant’s fourteenth point of error.

B. Victim-Impact Evidence.

In his twelfth point of error, appellant raises six sub-issues: four relate to the trial

judge’s refusal to give requested victim-impact instructions and two relate to the trial judge’s

admission of victim-impact and victim-character evidence.

Regarding his instruction-based complaints, appellant argues that the trial judge

violated the Eighth and Fourteenth Amendments in refusing to explicitly limit the jury’s

consideration of victim-impact evidence.85 Appellant claims entitlement to these instructions

criminal record, and the severity of the prior crimes; (5) the defendant’s age and personal circumstances at the time of the offense; (6) whether the defendant was acting under duress or the domination of another at the time of the offense; (7) psychiatric evidence; and (8) character evidence. Id. It is frequently said that “the circumstances of the offense itself ‘can be among the most revealing evidence of future dangerousness and alone may be sufficient to support an affirmative answer to that special issue.’” Druery v. State, 225 S.W.3d 491, 507 (Tex. Crim. App. 2007). 84 See, e.g., Williams v. State, 270 S.W.3d 112, 138 (Tex. Crim. App. 2008) (a jury could reasonably reject the defendant’s claim that the commission of capital offense was merely a temporary departure from his usual “benign” crimes and find that he was incorrigible). 85 Appellant’s requested instructions were as follows: (1) “That its consideration of victim impact evidence should not be conducted in connection with the future dangerousness issue”; (2) “That its consideration of victim impact evidence did not relieve the state of its burden to prove the ‘future dangerousness’ special issue beyond a reasonable doubt”; (3) “To disregard victim impact evidence that was not shown to be within the knowledge or Mays Page 36

based on Mosley v. State,86 a case in which we urged trial courts “to place appropriate limits

upon the amount, kind, and source of victim impact and character evidence.” 87 The trial

judge did not err in refusing the requested instructions.

First, appellant overstates the holding in Mosley. What was encouraged in Mosley was

the use of Texas Rule of Evidence 403 to limit the introduction of victim-impact and

character evidence in the first place, rather than the use of instructions to limit consideration

of evidence that had already been admitted.88

Second, nearly identical claims were rejected in Saldano v. State.89 There, the

defendant had requested some twenty-five non-statutory punishment charges, including

versions of the four instructions requested in this case, none of which were given by the trial

court.90 We stated,

We believe it sufficient to dispose of these points by recognizing that the trial court submitted a charge consistent with applicable state statutes, which have withstood numerous constitutional challenges. These state statutory provisions meet federal constitutional requirements by narrowing the class of ‘‘death-eligible defendants’’ and they arguably provide more than required by

reasonable expectation of the defendant”; (4) “Not to make a comparative worth analysis of the value of the victims to their families and community compared to the defendant or other members of society.” 86 983 S.W.2d 249 (Tex. Crim. App. 1998). 87 Id. at 263. 88 Id. at 262. 89 232 S.W.3d 77, 106 (Tex. Crim. App. 2007). 90 Id. Mays Page 37

the federal constitution by providing a jury a vehicle to ‘‘fully’’ consider mitigating evidence “in every conceivable manner in which the evidence might be relevant.” 91

The same is true in this case: The trial judge submitted a charge consistent with

applicable state statutes.

We now turn to appellant’s admission-based complaints. Appellant failed to preserve

this issue for review because he did not object to the admission of the victim-impact or

character evidence at trial.92 Nevertheless, his claim is without merit. First, appellant asserts

that the trial court let in far too much victim-impact evidence, exceeding the “quick glimpse”

permitted by the Eighth Amendment. We review a trial court’s admission of victim-impact

and character evidence for an abuse of discretion.93 The State called four witnesses to give

victim-impact and character testimony: Deputy Ogburn’s wife of thirty-six years, Pat

Ogburn; his son, Tony Ogburn Jr.; Deputy Harris; and Deputy Valentine.

Mrs. Ogburn testified that her husband’s death was “devastating.” She explained that

she has had medical issues since having a stroke in 1996, and her husband was her “sole

91 Id. at 107 (citing Cockrell v. State, 933 S.W.2d 73, 92-93 (Tex. Crim. App. 1996) (footnote omitted)). 92 See TEX . R. EVID . 105; see Guevara v. State, 97 S.W.3d 579, 583 (Tex. Crim. App. 2003) (defendant failed to preserve any error regarding admission of victim-impact evidence because his objection at trial did not comport with complaint raised on appeal); James v. State, 772 S.W.2d 84, 101 (Tex. Crim. App. 1989), vacated on other grounds, 493 U.S. 885 (1989) (failure to object to victim-impact evidence waived review on appeal); Barletta v. State, 994 S.W.2d 708, 715 (Tex. App.—Texarkana 1999, pet. ref’d) (defendant’s claim of erroneous admission of victim-impact testimony was not preserved for appellate review). 93 Mosley, 983 S.W.2d at 262. Mays Page 38

source . . . of everything.” Because of his death, she had to move closer to her siblings so

that they could take care of her. She said her husband was a man of faith who wanted

nothing more than to “help the public.” He “truly believed in being a police officer. That

was his life.” Mrs. Ogburn’s testimony took up slightly more than four pages of the record.

The next witness was Ogburn’s son, Tony Jr. He testified that he was very close to

his dad, that they would talk every day, and that now he does not know who he “can call to

talk to.” Tony Jr.’s main concern was that his dad was no longer there for his mom. He also

expressed sorrow that his seven children lost their grandfather. Tony Jr. testified that his dad

“liked talking to young people about the rights and wrongs of life, and just to try to help, you

know, the younger generation.” His testimony took up three pages of the record.

Deputy Harris then testified. He also described Deputy Ogburn’s death as

“devastating.” The deceased was his “go-to-guy” when his father had a terminal illness. He

said the two of them would talk every morning–a part of his day he knew he could enjoy.

He described Deputy Ogburn as wise and willing to share that wisdom. Deputy Harris’s

testimony took up slightly more than six pages of the record, but more than half of that

concerned the impact of the injury he himself sustained when appellant shot him.

Similarly, Deputy Valentine described Deputy Ogburn as a confidant and role model.

Since his death, “There’s times I don’t want to even come to work anymore.” Deputy

Valentine described Deputy Ogburn as supportive, friendly, calming, and dedicated to his

wife. Deputy Valentine’s testimony took up six pages of the reporter’s record–some of Mays Page 39

which concerned the impact of appellant’s conduct of threatening him with a deer rifle.

Appellant notes that he did not know the Ogburn family or that Deputies Harris and

Valentine were good friends of Deputy Ogburn’s. Regardless, all of this testimony was

admissible: This was evidence concerning the impact of the death of the victim named in the

indictment (Tony Ogburn) on others, i.e., Ogburn’s close family and friends.94 It was

admissible to rebut appellant’s mitigation case, regardless of whether “the defendant was

ignorant of the specific facts regarding the victim’s character or relationships.” 95

The victim-related evidence took up only a brief portion of the roughly 320-page

punishment record. “Sheer volume” was not a factor in this case.96 The four witnesses

testified succinctly and without objection. The trial judge acted within his discretion in

admitting these short bits of victim-impact and victim-character testimony.

Finally, appellant argues that the trial judge violated his constitutional and statutory

rights by admitting “victim impact” evidence relating to those not named in the indictment,

specifically Deputy Harris and Deputy Valentine. Appellant notes that Deputies “Harris and

Valentine each testified in great details about their injuries, their losses, the changes in their

lives, the changes in their family’s lives as a result of this shooting incident.” Appellant relies

94 Haley v. State, 173 S.W.3d 510, 517 (Tex. Crim. App. 2005). 95 Williams, 273 S.W.3d at 220. 96 Salazar v. State, 90 S.W.3d 330, 336 (Tex. Crim. App. 2002). Mays Page 40

on Cantu v. State,97 in which we held that admission of victim-impact and character evidence

is proper only as to the “victim” for whose death the defendant is being tried, not a second

victim killed in the same transaction.98

Deputies Harris and Valentine did provide classic victim-impact testimony (relating

to the impact Ogburn’s death had on them), but the testimony about their own injuries and

losses was admissible as same-transaction testimony.99 None of that testimony falls into a

class of evidence this court has traditionally disfavored: third-party testimony about the

impact of an extraneous offense (even one occurring during the same transaction) involving

a victim not named in the indictment.100 No third person testified about the impact of Deputy

Harris’s or Deputy Valentine’s injuries upon that third person. Because the trial judge acted

well within his discretion regarding the admission of victim-impact and character evidence

and did not err in refusing the requested charges, we overrule point of error twelve.

C. Jury Argument

97 939 S.W.2d 627, 637 (Tex. Crim. App. 1997). 98 Id. 99 Ford v. State, 919 S.W.2d 107, 116 (Tex. Crim. App. 1996); Garcia v. State, 126 S.W.3d 921, 929 (Tex. Crim. App. 2004) (medical records of injured bystander admissible over ‘victim impact’ objection; “While the records might have been irrelevant or inadmissible for other reasons, they were not irrelevant or inadmissible because they were victim impact evidence, as appellant claims”). 100 See Roberts v. State, 220 S.W.3d 521, 531 (Tex. Crim. App. 2007) (“‘Victim impact’ evidence is evidence of the effect of an offense on people other than the victim”; stating that “evidence of the effect of a different offense on the victim” is admissible); compare Haley, 173 S.W.3d at 518 (trial court erred in admitting victim-impact evidence relating to the extraneous offense of murder in the punishment phase of cocaine possession trial.). Mays Page 41

In his second point of error, appellant complains that the prosecutors made “a series

of egregiously improper remarks” during the closing arguments at the punishment stage. He

asserts that the prosecutors “pitched a death sentence” based on appellant’s mental illness,

thus using it as a “two-edged sword” of aggravation instead of mitigation.101 Appellant

argues that mental illness and its effects upon one’s conduct are, as a matter of law,

mitigating and can never be considered as rendering a person more likely to commit acts of

violence. That is not the law. Mental illness, like childhood abuse, is not mandatorily

mitigating, although it is evidence that the jury must be able to consider and give effect to

as it deems appropriate.102 However, we will not review the propriety of the prosecutor’s

arguments, as appellant failed to object to those arguments at trial. He has failed to preserve

any issue for appeal.103 We overrule point of error two.

101 The prosecutor argued, inter alia, And this defendant, we know, gets violent under these circumstances. The Defense’s own experts told you that they had concerns about this defendant because of the conditions they believe he’s suffering from. If you believe he’s paranoid and he believes that the guards are out to get him or the police officers are out to get him or just that people are out to get him, then, clearly, there’s a risk of violence. There’s a risk that he is going to act on those impulses. . . . 102 See Clark v. State, 881 S.W.2d 682, 699 (Tex. Crim. App. 1994) (rejecting defendant’s claim that evidence of childhood abuse was “‘mandatorily mitigating.’ Rather than mandating that certain evidence be considered mitigating, the sentencer must simply be allowed to fully consider and give effect to the evidence.”). 103 Tex. R. App. P. 33.1; see Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996) (“a defendant’s failure to object to a jury argument or a defendant’s failure to pursue to an adverse ruling his objection to a jury argument forfeits his right to complain about the argument on appeal. Any prior cases to the contrary such as Montoya and Romo are expressly overruled.”); see also Threadgill v. State, 146 S.W.3d 654, 670 (Tex. Crim. App. 2004) (reaffirming the Cockrell rule). Mays Page 42

D. Punishment-Phase Instructions to the Jury

1. Failure to include the statutory non-unanimity instruction

In his fourth point of error, appellant complains that the trial court omitted statutorily

required language from the mitigation-issue instructions. He is correct. The trial judge erred

by failing to instruct the jurors that they need not agree on what particular evidence supports

a finding on the mitigation special issue. However, appellant failed to notice or object to this

omission, and thus he may obtain a reversal of his sentence only if he shows that this error

caused “egregious harm” with respect to sentencing, that is, that the defendant was deprived

of a fair sentencing trial.104

We have recently found that the omission of the statutory non-unanimity instruction

was harmless error under Almanza’s 105 “egregious harm” standard. In Young v. State,106 we

stated that this instruction is not constitutionally required for purposes of the Texas special

104 Appellant argues that one or more of his written objections to the charge should have alerted the trial judge to this omission, but nowhere in his laundry list of objections did appellant object to the omission of the language mandated by Tex. Code Crim. Proc. art. 37.071, §2(f)(3) (the trial judge shall instruct the jurors that, in answering the mitigation question, they “need not agree on what particular evidence supports an affirmative finding on that issue”). And none of his objections were likely to put the trial court on notice of his actual complaint. His objections included: “The Defendant objects to the punishment charge as a whole because it fails to provide a vehicle for full and fair consideration of mitigating circumstances, rather than just some consideration,” as well as general objections to the constitutionality of article 37.071 and the failure to instruct the jury that a single “holdout” juror could ensure a life sentence. 105 Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1985). 106 283 S.W.3d 854 (Tex. Crim. App. 2009). Mays Page 43 issues.107 In addressing the issue of harm, the Court explained that every single juror had to

agree that there were no mitigating facts or circumstances that called for a life sentence rather

than a death sentence. 108 Thus, if even one juror believed that there was some mitigating

fact–any mitigating fact–that called for a life sentence, that juror could not join in a verdict

in which the jury unanimously found that there was no mitigating circumstance.109

Appellant attempts to distinguish Young from the present case by contending that the

prosecutor in this case “repeatedly suggested that the defense was required to submit a single

mitigation theory.” 110 In the record excerpts that appellant cites, the prosecutor simply

107 Id. at 879. 108 Id. at 879. 109 See id. at 882 (Cochran, J., concurring) (“[I]t would be illogical to speculate that perhaps one or more of those jurors did find a mitigating circumstance but was so confused about the unanimity requirement that he thought that unless every juror agreed upon the same mitigating fact, his vote did not count. So he changed his vote. Such reasoning assumes that jurors would violate their oaths. We must, however, ‘presume[ ] that jurors, conscious of the gravity of their tasks, attend closely the particular language of the trial court’s instructions in criminal cases and strive to understand, make sense of, and follow the instructions given them.’”) (footnote omitted). 110 Appellant’s Brief at 47. Appellant set out the prosecutor’s offending argument as follows: Remember the testimony of [four of appellant’s character witnesses]? That he’s a nice guy. He’s good with kids. He’s good with animals. He’s apparently the friendliest, most trusting guy they’ve ever met. And yet on the other hand, the Defense wants you to believe that he’s some sort of paranoid psychotic. They can’t have it both ways. You can’t just throw all the defenses against the wall and see what sticks. There has to be–there has to be a theory here. If you’re going to find that there’s a mitigating circumstance to justify that the defendant doesn’t receive the just punishment that he deserves, then, surely, the evidence should all show you that. You consider all the evidence. You don’t just pick out the half of the evidence that you want. Appellant points to other portions of the closing argument in which the prosecutor listed different Mays Page 44 pointed out the inconsistencies in the evidence presented by the defense: appellant was a

calm, friendly, likeable neighbor versus he was a paranoid psychotic. But the prosecutor

never suggested or implied that the jury had to unanimously decide which defensive theory,

if either, it chose to believe. Any individual juror could believe or disbelieve either theory;

the prosecutor’s thrust was that a juror could not simultaneously believe both because they

were inconsistent.111 In this case, as in Young,112 the appellant has failed to show that he

suffered “egregious harm” from the omission of the statutory non-unanimity instruction. We

overrule his fourth point of error.

2. Other punishment-stage jury-instruction claims

In points of error fifteen through twenty-one, appellant raises various other claims

concerning the punishment-phase jury instructions.

In point of error fifteen, he claims that the trial judge erred in failing to submit issues

on deliberation and provocation as those special issues previously existed in Texas statutes.

In 1991, when the Legislature added the mitigation special issue, it deleted those dealing with

deliberation and provocation because those matters were subsumed by the mitigation issue.113

mitigation theories that the defense had presented and stated, “All of those things are issues that he’s just throwing up there, hoping that one of those, you’re going to grasp a hold of and determine that’s some sort of mitigating evidence.” 111 Of course, as the defense implied, they are not necessarily inconsistent. Witness Dr. Jekyll and Mr. Hyde. 112 Young, 283 S.W.3d at 878-79. 113 See generally Powell v. State, 897 S.W.2d 307, 314 (Tex. Crim. App. 1994) (discussing 1991 legislative changes to art. 37.071). Mays Page 45 Any evidence that might show a lack of deliberateness on the part of the defendant or

provocation by the murder victim can be fully considered as a mitigating circumstance under

the current second special issue.114 And if the evidence does show careful deliberation or the

lack of provocation, that evidence may be considered under the future-dangerousness

issue.115

In point of error sixteen, appellant argues that the trial judge erred by instructing the

jury, as required by statute, that the definition of “mitigating evidence” limits the concept of

mitigation to “evidence that a juror might regard as reducing the defendant’s moral

blameworthiness.” 116 We have repeatedly rejected appellant’s argument, and he fails to

persuade us that these prior decisions were incorrect.117

In his seventeenth point of error, appellant contends that the trial judge erred in failing

114 T EX . CODE CRIM . PROC. art. 37.071, § 2(e)(1). 115 T EX . CODE CRIM . PROC. art. 37.071, § 2(b)(1); see Sonnier v. Quarterman, 476 F.3d 349, 367 (5th Cir. 2007) (“Though the ‘deliberateness’ special issue has been removed, the imposition of the death penalty under the amended article is not arbitrary, erratic, wanton, or freakish.”); Joiner v. State, 825 S.W.2d 701, 704 (Tex. Crim. App. 1992) (in answering the “future dangerousness” special issue, the jury may consider, inter alia, “the calculated nature of the defendant’s acts,” “the forethought and deliberateness exhibited by the crime’s execution,” and “whether the defendant was acting under duress or the domination of another at the time of the offense”). 116 T EX . CODE CRIM . PROC. art. 37.071, §2(f)(4). 117 See Cantu v. State, 939 S.W.2d 627, 649 (Tex. Crim. App. 1997) (“Because the consideration and weighing of mitigating evidence is an open-ended, subjective determination engaged in by each individual juror, we conclude that Article 37.071 §2(f)(4) does not unconstitutionally narrow the jury’s discretion to factors concerning only moral blameworthiness”); see also Prystash v. State, 3 S.W.3d 522, 534 (Tex. Crim. App. 1999); Jackson v. State, 992 S.W.2d 469, 481 (Tex. Crim. App. 1999). Mays Page 46 to define various terms and phrases–including “probability” and “continuing threat to

society”– in the first special issue. Appellant acknowledges that we have repeatedly rejected

this contention in prior cases,118 and we are not persuaded by his arguments that those cases

were incorrectly decided.

In his eighteenth point of error, appellant complains that the trial judge failed to

instruct the jurors that they could return a life sentence even if they concluded that their

honest answers to the two special issues would require the trial judge to sentence the

defendant to death. He argues that the Eighth Amendment “require[s] the trial court to

empower the jury with a vehicle capable of giving effect” to the evidence.119 Appellant cites

no precedent for his proposition that the jury must 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. The Supreme Court has held that such unbridled

discretion is not required by the constitution.120 Furthermore, appellant has not shown any

theory for obtaining a life sentence that is outside the scope of the special issues. And he

failed to raise this specific claim in the trial court,121 thus his sentence could be reversed only

118 See, e.g., Ladd v. State, 3 S.W.3d 547, 572-73 (Tex. Crim. App. 1999) (trial court need not further define the terms in the “future dangerousness” issue because the jury is presumed to understand them); see also Russeau v. State, 291 S.W.3d 426, 434 (Tex. Crim. App. 2009); Renteria v. State, 206 S.W.3d 689, 706 (Tex. Crim. App. 2006). 119 Smith v. Texas, 543 U.S. 37, 45 (2004). 120 Johnson v. Texas, 509 U.S. 350, 362-63 (1993). 121 On appeal, he points to his charge objections 16 and 17, which deal with the trial court’s failure to define certain terms; they do not deal with the specific issue that he presents on appeal. Mays Page 47 if he established error and that error caused egregious harm.122 He has failed to show either

error or egregious harm.

In his nineteenth point of error, appellant claims that the “10-12 Rule” violates the

rights of “lone, minority, and dissenting jurors” who would effectively lose their voting

rights. He argues that jurors must be told of their right to “veto death” by refusing to return

any verdict during the sentencing stage. We have previously held that the “10-12 Rule” is

constitutional and that no Supreme Court precedent requires the trial judge to inform the

jurors of the effect of a “holdout” juror.123 On appeal, appellant couches his complaint in

terms of the constitutional right of jurors, rather than the rights of the defendant. He never

brought that argument to the trial judge’s attention; thus, we decline to address that aspect

of his claim.

In his twentieth point of error, appellant claims that the trial judge’s instruction that

the jurors shall “consider all evidence . . . that militates for or mitigates against the imposition

of the death penalty” unconstitutionally permits “vague and overbroad aggravators and other

irrational procedures to impose capital punishment.” 124 We have previously rejected these

arguments, and appellant fails to persuade us that we were incorrect in doing so.125

122 Almanza, 686 S.W.2d at 171. 123 See, e.g., Russeau v. State, 171 S.W.3d 871, 886 (Tex. Crim. App. 2005); Shannon v. State, 942 S.W.2d 591, 600-01 (Tex. Crim. App. 1996). 124 Appellant’s Brief at 128. 125 See Luna v. State, 268 S.W.3d 594, 609-10 (Tex. Crim. App. 2008), cert. denied, 130 S.Ct. 72 (2009); Scheanette v. State, 144 S.W.3d 503, 507-08 (Tex. Crim. App. 2004). Mays Page 48 In his twenty-first and final point of error, appellant claims that the trial court erred

in refusing to assign a burden of proof to the State in the mitigation-issue instructions. This

Court has consistently held that, under Texas statute, the State does not bear any burden of

proof in the mitigation issue and that the statute setting out that issue and instructions is

constitutional.126 We decline appellant’s invitation to overrule established law.

We overrule points of error fifteen through twenty-one.

Having reviewed all of appellant’s claims, we find that none of them require reversal

of the jury’s verdict, and we therefore affirm the trial court’s judgment and sentence.

Delivered: April 28, 2010

Publish

126 Whitaker v. State, 286 S.W.3d 355, 370 (Tex. Crim. App. 2009); Busby v. State, 253 S.W.3d 661, 667 (Tex. Crim. App. 2008).