Miller, Demontrell

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. AP-76,270

DEMONTRELL LAMAR MILLER, Appellant

v.

THE STATE OF TEXAS

ON DIRECT APPEAL FROM CAUSE NO. 241-1251-08 IN THE 241ST DISTRICT COURT SMITH COUNTY

A LCALA, J. delivered the opinion of the Court in which M EYERS, P RICE, W OMACK, K EASLER, H ERVEY, and C OCHRAN, JJ., joined. K ELLER, P.J., joined, except for point 8, in which she concurred. J OHNSON, J., concurred in the judgment.

OPINION

This is a direct appeal filed by Demontrell Lamar Miller, appellant, who was

convicted in November 2009 of capital murder. T EX. P ENAL C ODE § 19.03(a)(8). Based on

the jury’s answers to the special issues set forth in the Texas Code of Criminal Procedure Miller - 2

Article 37.071, sections 2(b) and 2(e), the trial court sentenced appellant to death. See T EX.

C ODE C RIM. P ROC. art. 37.071, § 2(g).1 After reviewing appellant’s twenty-eight points of

error, we conclude they are without merit. Consequently, we affirm the trial court’s

judgment and sentence of death.

Factual Background

At 12:56 p.m. on Sunday, June 1, 2008, emergency responders were dispatched to an

apartment where appellant lived with his girlfriend, Ceola Pinson; their infant son, Jakayden

(“Ty”); and two-year-old Kelynn, who was Ceola’s son from a previous relationship.

Paramedics noted that Kelynn was cold, non-responsive, and had no heartbeat. His

underwear contained bloody stool. Kelynn was taken by ambulance to the hospital, where

he was pronounced dead at 1:35 p.m. The doctor who pronounced him dead noted that

Kelynn’s core body temperature was 91.1 degrees Fahrenheit and his body was in rigor

mortis. Appellant was charged with intentionally or knowingly causing the death of Kelynn

Pinson,2 an individual younger than six years of age, by striking him with his hand, foot, and

unknown hard and blunt objects, and by striking him against unknown hard and blunt objects.

1 Unless otherwise indicated, all references to Articles refer to the Texas Code of Criminal Procedure. 2 The spelling of the victim’s and several witnesses’ names vary throughout the record on appeal. We have adopted the spelling of the victim’s name that was provided in the indictment, and the spellings of witnesses’ names that were provided by the witnesses when they were sworn in at trial. Miller - 3

Kelynn’s paternal grandmother, Linda Franklin, testified that Kelynn had stayed with

her family the week before he died, and he was fine when she and Kelynn’s father, Kelvin

Arterberry, took him back to Ceola’s apartment on Friday night. Kelynn spent about half of

every month with Linda. During a previous visit a couple of weeks earlier, Linda noticed

that Kelynn was sore in the area of his rib cage under his arm when she tried to pick him up.

When she asked him what had happened, he said that appellant threw him into a wall. She

asked Kelynn where his mother was when that happened, and Kelynn said that she was on

the floor.

Ceola acknowledged in her testimony that Kelynn was sore in the area of his rib cage

under his arm when she tried to pick him up a few weeks before his death, but she denied

knowing how it had happened. Ceola also testified that she had told appellant not to spank

Kelynn any more after she discovered red welts on Kelynn’s body. On another occasion,

Kelynn’s shoulder was sore and he had trouble lifting his arm, but Ceola thought that these

symptoms were caused by his sliding down into the space between the bed and the wall while

he was sleeping.

Linda testified that Kelynn often cried when she took him home, especially if Ceola

was not there. To stop Kelynn from misbehaving at her house, Linda sometimes threatened

to take him home, and Kelynn would become fearful and say, “No.” Ceola also

acknowledged that Kelynn would become fearful if she threatened to tell appellant that he

was misbehaving. She stated that Kelynn did not “take to” appellant in the way he took to Miller - 4

others, and she acknowledged that she once asked Kelynn why he did not like appellant. In

his second statement to police, appellant denied that Kelynn was afraid of him, but he

admitted that Kelynn knew not to come into the room or interrupt when appellant was

watching TV or playing video games.

During Kelynn’s week-long stay with Linda shortly before his death, Linda bathed

him every day, and she did not notice any bruising or injuries except for some scratches on

his legs that he got from running through her neighbor’s rose bushes. Kelynn’s father,

Kelvin, also testified and confirmed that Kelynn had been fine when they dropped him off

at Ceola’s apartment on Friday night. Kelvin identified a photograph of him and Kelynn

together that he had taken with his cell phone on Friday morning. In that picture, Kelynn was

smiling and did not have any visible bruising.

Ceola also testified that Kelynn had been fine when Linda and Kelvin dropped him

off with her on Friday night. She stated that she and the children spent a quiet evening at

home. She and Kelynn sat on the couch and read books together. Appellant was not there

for most of the evening. When appellant returned from a club around 3:00 a.m., he called

Ceola to unlock the front door for him, and he went to bed. The family went out to eat after

appellant woke up between 1:00 p.m. and 2:00 p.m. on Saturday. Appellant and Ceola

decided to go to Dallas with some friends that afternoon and left the children with Ceola’s

friend, Dakeidra Choice. Dakeidra testified that she babysat Kelynn many times. On that

evening, Kelynn seemed to have a normal appetite, and she did not notice anything wrong Miller - 5

with him. Kelynn rode a “Big Wheel” around the apartment and walked to the mailboxes

with Dakeidra and her children. Two other adults who were present in Dakeidra’s apartment

that evening also testified that Kelynn seemed fine. Some time after supper, Kelynn asked

for and was given a snack, which he ate. Dakeidra did not notice any injuries or bruises

when she gave Kelynn a bath and put him to bed after 10:00 p.m. Kelynn and Ty were

sleeping when Ceola and appellant came by around 2:00 a.m. on Sunday to pick them up.

Ceola testified that on the way home, Kelynn woke up and complained that he was

thirsty, but he went back to sleep after they got home. She heard a thump while she was

taking a bath and she called out to Kelynn, who said that he was all right. Before she left for

work around 5:30 a.m. on Sunday, Ceola saw Kelynn asleep in his bed. She checked his

pull-up, which was clean, and she moved him to the couch so that when he woke up, he could

watch cartoons without disturbing appellant. Kelynn did not wake up, but he squirmed to get

comfortable on the couch. When Ceola stopped by the apartment around 9:00 a.m. to drop

off baby formula for Ty, Kelynn was still asleep on the couch, and she did not notice

anything wrong with him. She spoke with appellant for a few minutes and then went back

to work.

At 12:40 p.m., Ceola received a telephone call from appellant, telling her to come

home right away because something had happened to Kelynn. She told appellant to call

9-1-1, and she started for home. When she arrived, the front door was locked, and she yelled

for appellant to open it. After appellant opened the door, Ceola and her neighbor, Yolanda Miller - 6

Williams, entered the apartment. Kelynn was lying on the living-room floor. Ceola asked

appellant whether he had called 9-1-1, and then without waiting for an answer, she called

9-1-1 herself. Yolanda attempted to revive Kelynn by performing cardiopulmonary

resuscitation (“CPR”). At that point, Ceola observed a bruise developing around Kelynn’s

eye. Paramedics arrived about four minutes after Ceola called 9-1-1, and Yolanda carried

Kelynn outside to them. Ceola accompanied Kelynn in the ambulance, but he never regained

consciousness. A friend who met her at the hospital testified that while they were waiting,

Ceola was hysterical, and she kept asking appellant questions, but appellant hung his head

and did not say very much.

In appellant’s statements to police, he acknowledged that Kelynn seemed fine on

Saturday afternoon, and Kelynn was still fine when they picked him up from Dakeidra’s

apartment. Appellant heard Ceola leave for work around 5:30 a.m. on Sunday morning, but

he stayed in bed and went back to sleep. Around 7:00 a.m., he woke up to give Ty a bottle.

He then went back to bed. Later, when Ceola called, he told her that they were out of baby

formula. Kelynn was still asleep when Ceola dropped off the formula, and appellant went

back to bed after she left. Around 11:30 a.m., appellant got out of bed and woke Kelynn up

because he thought Kelynn might be hungry. Appellant fixed Kelynn a sandwich and some

cereal with milk, which Kelynn ate. Kelynn asked appellant to take him swimming, and

appellant told him no. However, after appellant went back into his bedroom to watch

television, he changed his mind and told Kelynn they could go swimming. Miller - 7

To get him ready to go to the pool, appellant removed Kelynn’s orange shirt and dirty

pull-up and used two “wet wipes” to clean Kelynn before dressing him in underwear and

plaid shorts. Appellant placed the used wipes, together with the dirty pull-up, inside a cereal

box in the trash. Appellant did not notice any injuries on Kelynn’s body except for one

bruise on his left shoulder. Kelynn was in a good mood and was excited about going

swimming when appellant took him and Ty to the pool.

Appellant related that after they had been at the pool for a few minutes, Ty started

crying, so appellant told Kelynn to sit in a chair by the pool while he carried Ty back to their

second-floor apartment to get a baby bottle. Appellant left Kelynn alone for only a couple

of minutes but when he looked outside, he could not see Kelynn. He stepped out onto the

breezeway and loudly called Kelynn’s name twice, but he received no response, so he left Ty

in the apartment and hurried down to the pool.

When appellant returned to the pool, he saw that Kelynn was holding onto the pool

ladder and floating with his face in the water. He thought that Kelynn was dead. However,

after appellant pulled Kelynn out of the water and delivered a single open-handed blow to

his chest, Kelynn jumped up, opened his eyes wide, and asked for something to eat.

Appellant carried him back to the apartment because Kelynn was too sluggish to walk up the

stairs by himself. Kelynn coughed up a white mucus-like substance onto appellant’s

shoulder. When they got back into the apartment, appellant wiped the substance off with a

black shirt. Appellant sat Kelynn down on the couch and gave him Sprite in a sippy cup, and Miller - 8

then went to look for some dry clothes to change him into. When appellant next looked at

Kelynn, he saw that his eyes were rolling back in his head. Kelynn’s breathing and heartbeat

were not normal, so appellant began performing CPR. He stopped to call Ceola, who told

him to call 9-1-1, but he did not call 9-1-1 because he was scared and trying to do CPR. He

was still administering CPR when he heard Ceola at the front door. Appellant got up to let

her in, and their neighbor “Yawny” accompanied Ceola into the apartment and began

performing CPR on Kelynn while Ceola called 9-1-1.

Appellant added or changed some details in his second statement to police.

Specifically, in his second statement, appellant related that, after Ceola dropped off the baby

formula for Ty, appellant went to the bedroom and watched an 80-minute movie before

Kelynn woke up. Appellant also stated that Ceola did not tell him to call 9-1-1 when he told

her that something had happened to Kelynn. Appellant further added that Kelynn coughed

something up onto the carpet while appellant was attempting to perform CPR, and appellant

turned him over to try to let the substance drain out of Kelynn’s mouth. Appellant moistened

a towel and used it to wipe the mess. He had used the same towel earlier when Kelynn

coughed up a white substance on their way back from the pool.

In both his statements to police, appellant failed to mention that he had a phone

conversation with his cousin, Antron Gardner, that day. However, Gardner testified that he

and appellant spoke on the telephone around noon, and they talked about the good-looking

girls they had seen when they were at a club together on Friday night. Gardner’s phone Miller - 9

records, which were introduced into evidence, indicated that appellant called Gardner’s

number three times around 11:58 a.m., and they spoke at 12:34 p.m. in a call that lasted 50

seconds. Gardner testified that he did not answer appellant’s initial calls because he was

sleeping, but he called appellant back when he woke up. After they talked for a few seconds,

appellant told him he needed to go because he had left Kelynn at the pool. Gardner testified

that appellant sounded calm during that conversation, but when Gardner saw him at the

hospital around 4:00 p.m., appellant cried and stated that he was “going to hell.” Ceola

testified that, after that day, she never asked appellant what had happened, and appellant

never told her, but he did tell her that Kelynn’s “blood was on [his] hands.” She

acknowledged that she later told a psychologist that Kelynn would still be alive if she had

left appellant. She testified that she did not know why she said that.

Deputy Sheriff Clifton Hunter, the apartment complex’s courtesy officer, testified that

he unlocked the gate to the pool at 12:30 p.m. on Sunday and saw no evidence that anyone

was there or had been there. He also testified that he received a call on his cell phone as he

was leaving the pool area, and he stayed outside on the breezeway in front of his second-floor

apartment for several minutes while he was talking on the phone. His cell-phone records

confirmed that he received a call at 12:31 p.m., and he testified that the call lasted for about

three minutes. He had a view of the pool from the breezeway in front of his apartment.

Appellant’s apartment also faced onto the breezeway and had a view of the pool. Deputy

Hunter testified that he would have been able to see anyone going back and forth between Miller - 10

appellant’s apartment and the pool, but he did not see anyone. In addition, he would have

been able to hear a noise at the pool if someone fell in, and he would have heard anyone who

called out from the breezeway to someone in the pool area. However, he did not see or hear

anything like that while he was outside. Officer James Holt, who secured the pool area after

he responded to the 9-1-1 call, testified that he saw no evidence that anyone had been at the

pool that day.

Casey DuPont, a forensic scientist, testified about blood tests and DNA analyses that

she had conducted on items that had been recovered from Kelynn and from the apartment

following Kelynn’s death. Kelynn’s orange tank top had multiple areas of red staining,

which tested presumptively positive for blood. DuPont conducted a deoxyribonucleic acid

(“DNA”) analysis on a stain near the neck area and obtained a DNA profile that matched

Kelynn’s. The plaid shorts and underwear that Kelynn was wearing when he was taken to

the hospital contained a large amount of fecal matter as well as a large amount of brown

staining that tested presumptively positive for blood. DuPont could not obtain a DNA profile

because DNA would be degraded by the presence of fecal matter.

A cereal box containing two “wet wipes” had been found in the trash. One wipe had

dark material that resembled the fecal matter found on Kelynn’s shorts. The other wipe had

lighter stains. Both wipes tested presumptively positive for blood. DuPont did not obtain

a DNA profile because it appeared that the majority of the dark stain was fecal matter, with

blood as a minor component. Miller - 11

A black T-shirt that purportedly belonged to appellant was tested. It had a white stain

that appeared to be of biological origin and did not test presumptively positive for blood.

However, a DNA profile obtained from the stain was consistent with Kelynn’s, indicating

that the substance was fluid from Kelynn’s body.

A section of carpet that had been cut from the living room floor had a large

reddish-brown stain that tested presumptively positive for blood, and DuPont obtained a

partial DNA profile that was consistent with Kelynn’s.

A white towel recovered from the living room floor had eighteen areas of red staining

on the towel that tested presumptively positive for blood. DuPont conducted a DNA analysis

on one area and obtained a DNA profile that was consistent with Kelynn’s.

Dr. Reade Quinton, the Dallas County Medical Examiner who performed the autopsy,

described the condition of Kelynn’s body and the numerous bruises and internal injuries that

he had sustained. Kelynn’s stomach contained only dark brown fluid, which was not

consistent with his having eaten any food on Sunday morning unless he vomited afterward.

The bruises on Kelynn’s body probably would have been visible within half an hour, and

certainly no later than a couple of hours, after the impacts that caused them. Dr. Quinton

opined that Kelynn’s internal abdominal injuries were inflicted by multiple blunt-force

impacts which most likely occurred around the same time, although the injuries could have

been inflicted over the course of several hours or even over the course of a day. Kelynn

sustained a number of tears to the mesentery that were probably inflicted within thirty hours Miller - 12

of death, including a severe tear that was probably inflicted within three hours of death. This

tear would have been immediately followed by active bleeding into the abdominal cavity,

which would have caused severe pain. Kelynn’s distress would have been readily apparent

to his caregivers and most likely would have prevented him from engaging in ordinary

activities like eating and playing. Kelynn’s injuries would have produced immediate

symptoms that would have grown continually worse until he died. Although in some cases

a child might live for several days with a torn mesentery, Dr. Quinton was unaware of any

child who had lived that long after suffering injuries as extensive as Kelynn’s.

Dr. Quinton opined that Kelynn would not have died immediately. If Kelynn was

non-responsive when emergency responders reached him at 12:56 p.m., then his abdominal

injuries were present before 11:30 a.m. “Based on the way the injuries looked,” Dr. Quinton

doubted that Kelynn would have been very communicative by 11:30 a.m., and certainly he

would not have been hungry. Dr. Quinton opined that appellant’s account of events, in

which Kelynn was alert and wanting to go swimming around 11:30 a.m., became

unconscious in the water but quickly revived, was asking for something to eat and was

drinking from a sippy cup around 12:35 p.m. or 12:40 p.m., but then suddenly went into

distress and was non-responsive by 12:56 p.m., was not medically likely.

Dr. Quinton further testified that, based on the location and severity of Kelynn’s

abdominal injuries, they were not the result of CPR or efforts to revive him. In addition, the

autopsy revealed a previously fractured rib that had begun healing but had been broken again Miller - 13

within thirty hours of Kelynn’s death. Based on the unusual posterior location of the fracture

and the fact that Kelynn incurred the same injury twice in the same unusual location, it was

very unlikely that this injury was accidental.

Dr. Stephen Pustilnik, the Chief Medical Examiner for Galveston County, testified for

the defense. He acknowledged that Kelynn’s injuries were dramatic, but he believed that

some of them were at least twenty-four hours old and that the mesenterial tearing was

inflicted a day or more before Kelynn’s death. On cross-examination, he acknowledged that

he had told Dr. Quinton that he thought the mesenterial tearing was inflicted at least eight

hours before death. He also acknowledged that bruises like those seen on Kelynn’s skin

would probably become apparent within thirty minutes of the impacts that caused them.

Dr. Harry Wilson, a pediatric pathologist, testified for the State. He had reviewed the

autopsy results and observed that Kelynn’s brain was swollen, which indicated that Kelynn

did not die immediately after he was injured and that he had probably gone into shock. Dr.

Wilson also opined that, based on the coloring of some of Kelynn’s abdominal tissues, he had

suffered a previous internal abdominal injury that was roughly a week old. The new

mesenterial tears were probably inflicted between one and four hours before his death. Dr.

Wilson opined that Kelynn would have been in obvious pain and distress because of the

blood pooling in his abdomen, and he would have lost consciousness as a result of his brain

swelling. Kelynn’s distress from these injuries would have been apparent to his caregivers.

Dr. Wilson also testified that if Kelynn’s caregivers on the Friday and Saturday before his Miller - 14

death observed that he seemed normal and that he did not have any noticeable bruising, then

Kelynn did not have these injuries when he was with them. Dr. Wilson opined that

appellant’s account of events leading up to Kelynn’s death had to be false.

Sufficiency of the Evidence at Guilt Phase

In point of error one, appellant alleges that the evidence is insufficient to support his

conviction for capital murder. Specifically, he complains that many adults had access to

Kelynn during the time period when the fatal injuries could have been inflicted. Appellant

argues that evidence that he was the most likely perpetrator is insufficient to sustain the

verdict.

In determining whether the evidence is sufficient to support a conviction, a reviewing

court must consider all of the evidence in the light most favorable to the verdict and

determine whether, based on that evidence and reasonable inferences therefrom, a rational

fact finder could have found the essential elements of the crime beyond a reasonable doubt.

Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Hooper v. State, 214 S.W.3d 9, 13 (Tex.

Crim. App. 2007). This standard gives full play to the responsibility of the trier of fact fairly

to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable

inferences from basic facts to ultimate facts. Lucio v. State, 351 S.W.3d 878, 894 (Tex. Crim.

App. 2011). Each fact need not point directly and independently to the guilt of the appellant,

so long as the cumulative force of all the incriminating circumstances is sufficient to support

the conviction. Hooper, 214 S.W.3d at 13. Miller - 15

The evidence in this case shows that appellant was Kelynn’s sole caregiver when the

fatal injuries were inflicted. Although expert medical testimony acknowledged that a child

could survive injuries like those inflicted on Kelynn for several days, expert testimony

established that it was highly unlikely that a child with injuries as severe as Kelynn’s would

survive for more than a few hours. The expert testimony explained that a child who had

suffered injuries like those inflicted on Kelynn would immediately experience symptoms that

would grow continually worse and that his distress would be apparent to his caregivers.

Kelynn’s blood was found in stains on his own clothes and on various items in the apartment

that appellant had identified while telling police his versions of events leading up to Kelynn’s

death. In addition, it was undisputed that the visible multiple bruises on Kelynn’s body

would have appeared within a couple of hours of the impacts that caused them, and no adult

saw those bruises until after Kelynn had been in appellant’s sole care for several hours.

Ceola and appellant, as well as other adults who took care of Kelynn on Friday and

Saturday, stated that Kelynn seemed fine through the time when Ceola and appellant picked

up the children from Dakeidra’s apartment at 2:00 a.m. on Sunday. Ceola stated that she

checked on Kelynn before she left for work around 5:30 a.m. and that he squirmed after she

moved him to the couch. Ceola and appellant both stated that appellant was alone with the

children after Ceola left for work, and that Kelynn was still asleep when Ceola stopped by

mid-morning to drop off baby formula for Ty. Kelynn seemed fine during this period.

Appellant’s versions of events from the time that Ceola left him alone with Kelynn Miller - 16

and Ty until the time that Ceola returned to the apartment and called 9-1-1 were not

consistent with testimony that no one had been to the pool, evidence of Kelynn’s blood on

Kelynn’s clothes and inside the apartment, and autopsy results reflecting that Kelynn had

been beaten to death. The State’s medical experts testified that appellant’s account of

Kelynn’s condition and behavior that day was not medically likely and had to be false.

The State also presented evidence that appellant had abused Kelynn in the past,

including breaking his rib by throwing him into a wall and spanking him so hard that red

welts appeared on his skin. Appellant told Gardner at the hospital that he was “going to

hell,” and he later told Ceola that Kelynn’s “blood was on [his] hands.” A jury could

reasonably infer from this evidence that appellant caused Kelynn’s fatal injuries. See Lucio,

351 S.W.3d at 895. The cumulative force of all the incriminating circumstances is sufficient

to support the conviction. See Hooper, 214 S.W.3d at 13. Point of error one is overruled.

Summaries of Testimony

Appellant presents three points of error challenging the admission of summaries of

the testimony of Dr. Quinton, Detective David Matthews, and Ceola Pinson. In point of error

two, appellant complains that the trial court erred by admitting the prosecutor’s summary of

Dr. Quinton’s testimony because the summary is inadmissible hearsay and does not fall

within the ambit of Rules 107 or 1006 of the Texas Rules of Evidence.3 See T EX. R. E VID.

107, 1006. He argues that the harm analysis should be conducted under Texas Rule of

3 Unless otherwise indicated, all references to Rules refer to the Texas Rules of Evidence. Miller - 17

Appellate Procedure 44.2(a) because the error violated the Confrontation Clause. See T EX.

R. A PP. P. 44.2(a). Appellant cites to two opinions that address the admissibility of

summaries under Rule 1006. See T EX. R. E VID. 1006; Wheatfall v. State, 882 S.W.2d 829

(Tex. Crim. App. 1994); Callahan v. State, 937 S.W.2d 553 (Tex. App.—Texarkana 1996,

no pet.). In support of his allegation of harm, appellant argues that submitting the opinion

of one expert in note form as evidence, when other experts with different opinions also

testified about the matter but none of their testimony was submitted in note form, had the

effect of accentuating Dr. Quinton’s opinion over other expert witnesses’ opinions.

When the prosecutor offered the notes into evidence at trial, appellant objected that

the admission of the summary violated the rules of procedure, “particularly . . . procedural

due process with respect to my client’s constitutional rights under the Fourteenth Amendment

and denies him a fair trial.” He complained that the jury should not be able to take

“summarized conclusions of the prosecutors” into the jury room and that allowing this was

fundamentally unfair and denied appellant equal protection. The prosecutor responded that

the summary was Dr. Quinton’s conclusions that had already been presented to the jury and

that it was admissible as a witness statement.

Appellant’s point of error on appeal, challenging the notes under the rules of evidence,

does not comport with his trial objections on the grounds of rules of procedure, due process,

equal protection, and “fairness.” See T EX. R. A PP. P. 33.1(a). Furthermore, his claims are

inadequately briefed because appellant provides no legal argument for his complaints that Miller - 18

the summary is inadmissible hearsay and that its admission violated the Confrontation

Clause. See id. Rule 38.1(h); see also Lucio, 351 S.W.3d at 896. Therefore, we decline to

address this claim. Point of error two is overruled.

In point of error three, appellant complains that the trial court erred by admitting the

prosecutor’s summary of Detective Dennis Matthews’s testimony because the summary is

inadmissible hearsay and does not fall within the ambit of Rule 107. See T EX. R. E VID. 107.

He argues that the harm analysis should be conducted under Texas Rule of Appellate

Procedure 44.2(a) because the error violated the Confrontation Clause. See T EX. R. A PP. P.

44.2(a). Appellant describes the summary as “conclusions of the prosecutor from the

statements and conclusions from the [sic] Detective Matthews with respect to the evidence

that’s been presented.” In support of his complaint, appellant states, “Pursuant to the

argument contained Issue No. 9. [sic] Appellant incorporates said arguments by reference

and argues that the admission of State’s Exhibit 175 was error.” We infer from this language

that appellant means to incorporate his argument from point of error two into point of error

three. He asserts that the error was harmful because “it unnecessarily drew the attention of

the jury to a particular piece of evidence.”

At trial, appellant objected to the admission of this summary on grounds that it was

“not evidence” and that it contained conclusions of the prosecutor with respect to the

evidence that had been presented. He argued that the “best evidence” of appellant’s

statements to police was the audiovisual recordings of those statements and that the jury Miller - 19

should be able to review those recordings “without the benefit of the aid and assistance of

the prosecutor’s and witness’ [sic] conclusions with respect to” the contents of the

recordings. He further objected that admitting the summary would violate his constitutional

rights to procedural due process and equal protection and would deny him a fair trial.

Appellant’s point of error on appeal does not comport with his trial objections. See

T EX. R. A PP. P. 33.1(a). Furthermore, his claims are inadequately briefed because he provides

no legal argument for his complaints that the summary is inadmissible hearsay and contains

inadmissible conclusions and that its admission violated the Confrontation Clause. See T EX.

R. A PP. P. 38.1(h). Therefore, we decline to address this claim. Point of error three is

overruled.

In point of error four, appellant complains that the trial court erred by admitting the

prosecutor’s summary of Ceola Pinson’s testimony because the summary is inadmissible

hearsay and does not fall within the ambit of Rule 107. See T EX. R. E VID. 107. In support of

his complaint, appellant “incorporates by reference the arguments made in Issue No. 9 [sic].”

We infer from this language that appellant means to incorporate his argument from point of

error two into this point of error.

At trial, appellant objected to the admission of this summary on grounds that its

admission violated procedural due process and equal protection and deprived appellant of his

right to a fair trial. Counsel also objected that admitting the summary, which was the

prosecutor’s notes, undermined the rationale behind the rule that the jurors themselves were Miller - 20

not allowed to take notes, and that the exhibit contained the prosecutor’s conclusions.

Appellant’s point of error on appeal does not comport with his trial objections. See

T EX. R. A PP. P. 33.1(a). Furthermore, his claims are inadequately briefed because appellant

provides no legal argument for his complaints that the summary is inadmissible hearsay and

that its admission violated the Confrontation Clause. See id. Rule 38.1(h). Therefore, we

decline to address this claim. Point of error four is overruled.

Autopsy Photograph

In his fifth point of error, appellant asserts that the trial court erred by applying the

Rule 403 balancing test to State’s Exhibit 103 because the prejudicial effect of this autopsy

photograph outweighed any probative value. See T EX R. E VID. 403. Appellant acknowledges

that the photograph is relevant but argues that the prosecutor’s need for it was minimal, the

photograph was gruesome, and the degree of mutilation from the autopsy played on jurors’

emotions and pushed them toward an irrational verdict.

State’s Exhibit 103 is an approximately life-sized autopsy photograph of Kelynn’s

body viewed from behind, with the skin of his arms, legs, neck, and back reflected. The

photograph measures approximately 30 inches by 23 inches. Kelynn’s feet and the top of his

head are not visible because they extend past the edge of the photograph, but all of the rest

of his body is visible. The photograph is in color.

The trial court held a hearing outside the presence of the jury to determine the

admissibility of this and other autopsy photographs. Dr. Quinton testified at the hearing that Miller - 21

the photo showed one of the procedures that medical examiners follow in a case where there

are multiple injuries. He explained that the skin of the entire back and extremities was

reflected so that the examiner could look for any additional bruising that might not be

apparent externally. The photo showed two small bruises on the midline of Kelynn’s back

and additional bruises on the right side of the back. Dr. Quinton confirmed that the

photograph was a visual depiction of the injuries that he planned to describe to the jury. It

showed the location of bruising on Kelynn’s back and the fact that there were multiple

impacts to his back area. Dr. Quinton acknowledged that the photograph was gruesome.

On cross-examination, defense counsel described this photograph as representing “a

human fillet of the body of that child.” Dr. Quinton again explained that the photo depicted

part of the procedure that the medical examiner followed in evaluating the body for injury.

He explained that Kelynn’s dark pigmentation made it difficult to see external bruising and

that this procedure enabled the examiner to see bruising that was deeper than the surface of

the skin. Although the bruises on the right side of Kelynn’s back were visible externally, the

two midline bruises were not visible externally or in the other photographs that would be

presented to the jury.

Dr. Quinton acknowledged that these injuries could be shown in a diagram or in

another photograph that was a close-up of the midline bruises that did not show “the entire

thing.” He also acknowledged that he could simply describe the injuries verbally. Dr.

Quinton, however, opined that the photo would be better than a diagram for demonstrating Miller - 22

the location, extent, and coloring of the injuries.

Defense counsel objected at the pretrial hearing and at trial on grounds that the

photograph was so prejudicial that it would deprive appellant of procedural due process,

equal protection, and a fair and impartial trial. She argued that a diagram or another

photograph could be used to assist Dr. Quinton in explaining those injuries. She

acknowledged that the photo was relevant but asserted that its prejudicial effect would

completely outweigh its probative value.

The trial court found that the photo was admissible and made detailed findings on the

record to explain its reasoning. The court cited Gallo v. State, 239 S.W.3d 757, 762 (Tex.

Crim. App. 2007), for the general principle that a photograph is admissible if verbal

testimony concerning the matter depicted in the photograph is also admissible. The court

noted that, as this Court stated in Gallo, Rule 403 favors the admission of relevant evidence

and carries a presumption that relevant evidence will be more probative than prejudicial. Id.

(citing T EX. R. E VID. 403). The court pointed out that in Gallo, the appellant complained of

the admission of “numerous, repetitious, [and] gruesome” autopsy photographs of the

three-year-old victim, but in the instant case, only one autopsy photograph was at issue. Id.

As in Gallo, the challenged photograph depicted injuries that were not visible externally and

that were inflicted shortly before death. Although the photograph was gruesome, there was

no danger that the jury would attribute the mutilation caused by the autopsy procedure to the

defendant. Miller - 23

The trial court also referred to Rojas v. State, 986 S.W.2d 241, 250 (Tex. Crim. App.

1998), which held that autopsy photos showing injuries to the victim’s pelvic area, although

those injuries were not the cause of death, were probative of the appellant’s mental state at

the time of the murder. They were evidence of the specific circumstances of the murder and

of the fact that the appellant had omitted information from his statement to police. Id. at 249-

50. The trial court also discussed Avila v. State, No. AP-74,142, 2003 Tex. Crim. App.

LEXIS 142, *18-19 (Tex. Crim. App. July 2, 2003) (not designated for publication), which

held that photographs depicting mutilation by the medical examiner were admissible when

they showed bruising or other damage that was attributable to the defendant but not visible

externally and, therefore, were highly relevant to the manner of death.

The trial court considered whether, as in Avila, the ultimate issue was seriously

contested and whether the State had other convincing evidence to establish the ultimate issue.

The State had the burden to prove that appellant intentionally or knowingly caused the death

of the victim. Thus, the State had to prove, not only that appellant inflicted the injuries that

led to the victim’s death, but also that the injuries were intentionally inflicted with the intent

to cause death.

Finally, the trial court cited Martin v. State, 475 S.W.2d 265, 267 (Tex. Crim. App.

1972), overruled on other grounds by Jackson v. State, 548 S.W.2d 685, 690 (Tex. Crim.

App. 1977), for the holding that if a photograph is competent, material, and relevant to the

issue on trial, it is not rendered inadmissible merely because it is gruesome or might tend to Miller - 24

arouse the passions of the jury. The trial court found that, in considering the testimony in this

case and the elements in the indictment, the probative value of the photo was not

substantially outweighed by the danger of unfair prejudice.

The admissibility of photographs over an objection is within the sound discretion of

the trial court. Sonnier v. State, 913 S.W.2d 511, 518 (Tex. Crim. App. 1995). In this case,

State’s Exhibit 103 was the only photograph offered to show the midline bruises on Kelynn’s

back that were not visible externally. It showed the location of multiple bruises on Kelynn’s

back and multiple impacts. Dr. Quinton testified that this photograph demonstrated the

location, extent, and coloring of the injuries more effectively than a diagram. Under the

circumstances of this case, we cannot say that the trial court abused its discretion in ruling

that the probative value of Exhibit 103 was not substantially outweighed by the danger of

unfair prejudice. See Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010). Point

of error five is overruled.

Lesser-Included-Offense Instructions

In point of error six, appellant asserts that the trial court erred by denying his

requested jury instruction on the lesser-included offense of felony murder, in violation of

Article 36.19. See T EX. C ODE C RIM. P ROC. art. 36.19. He contends “from reading the record

as a whole that a rational juror could have found that the [a]ppellant may have intended to

commit the felony . . . injury to a child, but did not intend to cause the victim[’]s death.”

A charge on a lesser-included offense should be given when (1) the lesser-included Miller - 25

offense is included within the proof necessary to establish the offense charged; and (2) there

is some evidence that would permit a rational jury to find that the defendant is guilty of the

lesser offense but not guilty of the greater. See Rousseau v. State, 855 S.W.2d 666, 672-73

(Tex. Crim. App. 1993). Felony murder is a lesser-included offense of capital murder.

Salinas v. State, 163 S.W.3d 734, 741 (Tex. Crim. App. 2005). Thus, the first criterion is

satisfied.

With regard to the second criterion, however, appellant fails to identify any evidence

in the trial record that affirmatively shows that he did not intentionally or knowingly cause

Kelynn’s death but instead only intentionally, knowingly, recklessly, or with criminal

negligence caused the injuries that led to Kelynn’s death. See Schweinle v. State, 915 S.W.2d

17, 19 (Tex. Crim. App. 1996); see also T EX. P ENAL C ODE §§ 22.04(a), 22.04(c)(1). Nor does

he identify any evidence that is subject to two different interpretations, one of which would

negate an element of the offense of capital murder and establish felony murder as a valid,

rational alternative. See Schmidt v. State, 278 S.W.3d 353, 362 & n.19 (Tex. Crim. App.

2009). Thus, appellant has failed to show that there is some evidence that would permit a

rational jury to find that he is guilty of the lesser offense but not guilty of the greater.

Appellant’s sixth point of error is overruled.

In point of error seven, appellant asserts that the trial court erred in denying his

requested jury instruction on the lesser-included offense of criminally negligent homicide,

in violation of Article 36.19. His entire argument in support of this point is that he Miller - 26

“incorporates by reference the argument contained in Issue No. 14 [sic].” We infer from this

language that appellant means to incorporate his argument from point of error six into this

point of error. Thus, this point of error is inadequately briefed. See T EX. R. A PP. P. 38.1(i);

see also Lucio, 351 S.W.3d at 896-97. Appellant’s seventh point of error is overruled.

Cross-Examination of Punishment Character Witnesses

In points of error eight through eleven, appellant asserts that the trial court erred by

overruling his objections to the improper examination by the prosecutor, of his character

witnesses in the punishment phase of trial. He argues in his eighth point of error that the

prosecutor’s examination of Joshua Smith injected race into the trial, which was not relevant

to any matter concerning appellant’s character, and that the prosecutor’s question was

manifestly improper and constituted prosecutorial misconduct. Appellant also argues that,

even if the evidence had some relevance under Rule 401, any probative value was

outweighed by its extremely prejudicial effect under Rule 403. See T EX. R. E VID. 401, 403.

In support of finding harm, appellant argues that the prosecutor’s improper questioning

violated due process and amounted to structural error requiring an automatic reversal on

punishment.

On direct examination, Joshua testified that he met appellant when they were

sophomores in high school. He testified that they were very close friends and they played

a variety of sports together. They were both members of the high-school football team.

Joshua described appellant as a leader on the team and a hard worker who was voted most Miller - 27

likely to succeed. They also played pool and video games together, and they spoke daily by

phone. They took a trip to Dallas together the day before Kelynn was killed. Joshua testified

that he visited appellant at appellant’s mother’s house on many occasions and observed

appellant interacting with his siblings. Appellant’s family was very close, and his siblings

looked up to him as a “father figure.” Appellant’s mentally challenged brother, Dexter,

looked up to appellant, wanted to be like him, and was happy to be around him. Appellant

was also very close to his mother, and when he was away from home, he would call her and

check up on the family.

Joshua further testified that he and appellant went to clubs together a couple of times

each month and to gambling boats in Shreveport three or four times each month. Joshua

thought that Ceola was jealous of the time that he and appellant spent together. He was

shocked to learn that appellant had been charged with capital murder because that was

uncharacteristic of appellant. He testified that he and appellant were a lot alike and that

appellant was a great friend.

On cross-examination, the prosecutor asked Joshua, “You remember talking on the

phone to [the] defendant and making some statements about the white folks in the court

room? I can refresh your memory with the tape. You remember that?” Defense counsel

asked to approach the bench. At the bench conference, defense counsel objected to the

prosecutor’s line of questioning on grounds that it was not relevant and was “quite

prejudicial,” arguing that it made no difference to the trial how Joshua felt about white Miller - 28

people. The prosecutor responded that Joshua’s statement to the defendant, made during a

telephone conversation on the previous evening after the trial adjourned for the day, was,

“You’re looking sharp today. White folks don’t like it, all our folks being in there,” and then

the defendant answered, “Today went all right.”

Defense counsel again asserted that the prosecutor should not interject race into the

trial and that this line of questioning was not relevant to any issue. The prosecutor responded

that it was relevant because

what [Joshua is] talking about is that they’ve been loading this courtroom up, and by his own statement it’s an effort to make us uncomfortable. And I think it goes directly to his bias to testify and his motive to testify. He’s talking about the white folks don’t like us being down there, I want to know what he’s talking about.

Defense counsel argued again that Joshua’s comment was not relevant, adding, “The bias

would go toward his friendship with the defendant, not toward the racial remarks that he may

have made during the course of the conversation.”

The trial court overruled the objection, finding that this questioning was relevant to

show Joshua’s motive and bias in testifying. Defense counsel then inquired whether the

court would give a limiting instruction on that basis, and the court stated there was nothing

on which to instruct. The trial court stated, “If he’s on the phone with the defendant making

those type statements, it’s something that the jury can consider in weighing his testimony, the

credibility of his testimony, motive or bias of his testimony. That’s the ruling.”

The prosecutor then asked Joshua a compound question: “[I]sn’t it true when talking Miller - 29

to the defendant, you said, ‘You’re looking sharp today. White folks don’t like it, all our

folks being down there,’ what did you mean?” Joshua asked him to repeat the question. The

prosecutor responded, “Sure. You told the defendant, four minutes and 25 seconds into your

phone call, you said, ‘You’re looking sharp today. White folks don’t like it, all our folks

being in there.’ What are you talking about? Because I can play it for you to refresh your

memory.” Joshua stated that he did not remember. The prosecutor then asked, “Are you

saying you didn’t say it?” Joshua responded, “I’m not saying I didn’t say it, I just don’t recall

saying that.”

Defense counsel again asked to approach the bench. She objected to the introduction

of the recording, arguing that because the witness did not deny making the statement, there

was no point in playing the recording. The prosecutor asserted that he could play the

recording unless the witness “unequivocally admits to making the statement.” The court

overruled the objection.

Defense counsel also objected on the ground that a proper predicate had not been laid

for the introduction of the recording. The prosecutor responded that he was not even “using”

or “introducing” the recording, he was just impeaching the witness with it, which was “totally

different.” The court overruled the objection, and the prosecutor played the recording to the

jury. The prosecutor then asked Joshua if that was his voice, and Joshua responded that he

could not say whether it was his voice. The prosecutor played the recording a second time

and again asked Joshua if that was his voice. Joshua then admitted that it was his voice. Miller - 30

The prosecutor then asked, “So what is it when you say that white folks don’t like it?

Who are you talking about?” Joshua responded, “Just people in general.” The prosecutor

persisted, “Well, no, you said that the white folks didn’t like it. Didn’t like what?” Joshua

answered, “I mean, I don’t know . . . I was meaning us being outside in the hallway.” The

prosecutor again asked, “What white folks don’t like it? I mean, you made the statement?”

Joshua responded again, “I mean, people don’t like us being out in the hallway.” The

prosecutor kept on: “Who don’t?” Joshua responded again, “Just people in general.”

A party may cross-examine a witness to expose his bias or interest in testifying. T EX.

R. E VID. 613(b). The trial court has discretion as to the extent of cross-examination of a

witness for the showing of bias or as to credibility, and its decision is not subject to reversal

on appeal absent a clear abuse of discretion. Cantu v. State, 939 S.W.2d 627, 635 (Tex. Crim.

App. 1997). However, a party is not entitled to impeach a witness on a collateral matter.

Ramirez v. State, 802 S.W.2d 674, 675 (Tex. Crim. App. 1990).

Joshua’s detailed description of his close friendship with appellant provided ample

evidence of his bias and motivation in testifying. The prosecutor’s questions concerning

Joshua’s arguably racist comment about the “white folks” were not relevant to his credibility

and were, at best, cumulative of already-introduced evidence of Joshua’s bias in testifying

as a character witness for appellant. These questions arguably created a risk of unfair

prejudice by placing Joshua’s own character in issue and portraying him as a racist who

envisioned the trial as a conflict between the “white folks” and “our folks.” Miller - 31

By asking Joshua if he made the “white folks” comment, the prosecutor elicited a

response from a character witness for the sole purpose of introducing extraneous evidence

to contradict the witness’s response and place the witness’s own character into issue. Such

questioning was improper. See TXI Transp. Co. v. Hughes, 306 S.W.3d 230, 242 (Tex. 2010)

(citing Ramirez, 802 S.W.2d at 675 (parties may not impeach on collateral or immaterial

matters), and Delamora v. State, 128 S.W.3d 344, 363 (Tex. App.—Austin 2004, pet. ref’d)

(“[a] party may not cross-examine a witness on a collateral matter, then contradict the

witness’s answer”)); but see Cantu, 939 S.W.2d at 635 (asking character witness if she

thought offense was funny and then introducing letter she had written which contradicted her

denial was not improper impeachment on collateral matter). Thus, any marginal relevance

of this line of questioning was substantially outweighed by the potential for unfair prejudice.

For non-constitutional error, as here, the improper admission of evidence is harmless

when it does not affect the substantial rights to a fair sentencing trial. See Coble v. State, 330

S.W.3d 253, 280 (Tex. Crim. App. 2010). In making a harm analysis, we examine the entire

trial record and calculate, as much as possible, the probable impact of the error upon the rest

of the evidence. Id. The error is harmless if it did not influence the jury or had only a slight

effect. Id.

In this case, Joshua was only one of several character witnesses who testified on

appellant’s behalf, and only his testimony was affected. In addition, Joshua’s bias and

character were challenged without objection in other ways. For example, the prosecutor Miller - 32

questioned Joshua about the fact that he and appellant’s other friends and family members

were wearing purple at the courthouse. Joshua testified, without objection, that appellant’s

mother had told them to wear purple in support of appellant and the family because it was

the color of royalty. The prosecutor also questioned Joshua about an incident in which he

received stolen shoes while appellant waited for him in the car, and another incident in which

Joshua was present while appellant and appellant’s sister confronted and beat up a woman

who was dating appellant’s sister’s boyfriend. In light of this unobjected-to questioning

about Joshua’s bias and character, any error in admitting the “white folks” line of questioning

was harmless in its impact on the jury’s determination of Joshua’s credibility. Furthermore,

nothing in the prosecutor’s questioning suggested that the improper racial comment was

made by appellant or with his assent, and, therefore, no statement was attributable to him.

We conclude the error was harmless because it did not affect appellant’s substantial rights.

Point of error eight is overruled.

In his ninth point of error, appellant complains that the trial court erred in overruling

his objection to the State’s improper cross-examination of his sister, Chineyere Jordan. He

complains that the prosecutor’s questioning of Chineyere about her mother’s criminal history

was outside the bounds of proper cross-examination. He incorporates by reference his

argument from point of error eight, and states that there is nothing in the rules of evidence

or case law that would render this testimony admissible. He asserts that the criminal record

of a third party is irrelevant and prejudicial. He contends that harm has been established Miller - 33

because, in closing argument, the prosecutor described appellant’s character witnesses as “a

parade of thugs.”

After defense counsel questioned Chineyere, the prosecutor approached the bench and

stated that, on cross-examination, he intended to question Chineyere about her mother’s

criminal history. He stated that this line of questioning was admissible to correct a false

impression left by her testimony during direct examination. Specifically, Chineyere had

testified on direct examination that appellant became his siblings’ primary caregiver when

he was still in middle school. She explained that their mother was not at home to take care

of them because she was always at work. In fact, however, their mother was often not at

home because she was in jail. Defense counsel objected to the prosecutor’s proposed line of

questioning, arguing that the defense had not left a false impression simply by questioning

Chineyere about the long hours that her mother worked. The trial court overruled the

objection, explaining that the impression had been left with the jury that their mother’s

absence from the home was the result of her working two jobs, and the State could offer

evidence to correct this impression.

The prosecutor then questioned Chineyere: “In fact, your mother, Julia Jordan, was

out of the house because – why don’t you tell me how many times she’s been arrested since

you and Demontrell lived in the house with her?” Chineyere responded, “How would I know

that?” The prosecutor then began questioning Chineyere about specific arrests: “Well,

because isn’t it true that in 1994 – how old would you have been then?” Chineyere answered Miller - 34

that she would have been four years old. The prosecutor then asked, “[Your mother] was

arrested for possession of a controlled substance, was she not?” Chineyere responded that

she did not know and that she did not ask. The prosecutor then asked about another arrest:

“Okay, January 17th of 1996 she was arrested on two cases of theft, was she not?”

Chineyere responded that she did not know, and she would have been six years old at that

time. The prosecutor then asked Chineyere what her mother had been arrested for in 2001,

and Chineyere again responded that she did not know.

After similar questions and answers about numerous additional arrest dates, Chineyere

stated that she did not know about her mother’s arrests and that she did not care to know such

things about her mother. The prosecutor continued, “So how many times has she been in jail

when you were growing up?” Chineyere again stated that she did not know, and she added

that she did not remember her mother being in jail. She explained, “[I]f my mom was

arrested, they not going to tell us, they probably tell us something else. So I don’t remember

my mom being arrested.”

An appellate court will not disturb a trial court’s evidentiary ruling absent an abuse

of discretion. Winegarner v. State, 235 S.W.3d 787, 790 (Tex. Crim. App. 2007). The general

rule is that a party is not entitled to impeach a witness on a collateral matter. Ramirez, 802

S.W.2d at 675. However, when a witness leaves a false impression concerning a matter

relating to his or her credibility, the opposing party is allowed to correct that false

impression. Id. at 676. Similarly, a party may open the door to otherwise inadmissible Miller - 35

evidence to rebut or correct a false impression for which he was responsible. Whitaker v.

State, 286 S.W.3d 355, 364 n.8 (Tex. Crim. App. 2009) (citing Renteria v. State, 206 S.W.3d

689, 697 (Tex. Crim. App. 2006)).

Chineyere testified that, from the time appellant was in middle school, he was his

siblings’ primary caregiver because their mother was never at home because she was always

at work. The trial court did not abuse its discretion by determining that this testimony left a

false impression concerning a matter relating to Chineyere’s credibility as a character

witness. This testimony was relevant to Chineyere’s credibility in at least two ways. First,

if Chineyere did not know or remember that their mother was often in jail when they were

growing up, then this fact was relevant to the jury’s assessment of Chineyere’s ability to

accurately observe and recall details about her home life and her immediate family members,

including appellant. Second, if Chineyere knew that their mother was often in jail when they

were growing up, but she chose to omit this information from her explanation of why their

mother was never home, then this fact was relevant to the jury’s assessment of her candor.

In addition, the trial court did not abuse its discretion by determining under Rule 403

that the probative value of questioning Chineyere concerning her mother’s criminal history

was not substantially outweighed by the danger of unfair prejudice. See T EX. R. E VID. 403.

As mentioned above, this questioning arguably corrected a false impression and had some

limited probative value concerning Chineyere’s reliability and credibility as a character

witness. The probative value of the substantive information concerning their mother’s arrest Miller - 36

record was minimal, but the risk of unfair prejudice to appellant was also minimal because

the arrests were not appellant’s, and although they were numerous, they were for non-violent

offenses. Furthermore, the jury became aware of the mother’s criminal history through

unobjected-to testimony by another witness, and, therefore, the prejudicial effect of the

evidence from Chineyere’s testimony was mitigated. We conclude the trial court did not

abuse its discretion by overruling the appellant’s objection that the testimony was overly

prejudicial. Point of error nine is overruled.

In point of error ten, appellant asserts that the trial court erred in overruling his

objection to the prosecutor’s improper cross-examination of Reverend Allen Dotson

concerning his knowledge of appellant’s mother’s criminal history. Appellant asserts that

questioning a character witness about the criminal record of a third party is “totally irrelevant

and prejudicial to the [a]ppellant.” It appears from appellant’s argument that he also means

to complain about the fact that, during this examination, the prosecutor misrepresented

appellant’s mother’s criminal record by describing her as a convicted felon. Appellant

incorporates by reference his argument from point of error eight, adding that there is nothing

in the rules of evidence or case law that would render this testimony admissible. He asserts

that he was harmed because the prosecutor emphasized this sort of improper testimony when,

in closing argument, she described appellant’s character witnesses as “a parade of thugs.”

The record reflects that the prosecutor asked Dotson, “[Appellant’s mother] is a

convicted felon, is she not?” He responded that she was. Defense counsel then asked to Miller - 37

approach the bench and objected that this questioning constituted collateral impeachment of

a witness who was not on the stand, and that appellant’s mother had no final felony

convictions that were available for impeachment. In response, the prosecutor asserted that

he was not impeaching appellant’s mother but rather was testing Dotson’s knowledge of

appellant’s family. The prosecutor reviewed his records and acknowledged that appellant’s

mother did not have a final felony conviction but instead had received deferred-adjudication

probation for a felony offense. He stated that he would correct this information. After the

bench conference, the prosecutor asked Dotson whether appellant’s mother “was actually on

a third degree felony deferred adjudication probation” for a term of ten years. Dotson

acknowledged that she was.

Appellant’s complaints on appeal do not comport with his objections at trial. See T EX.

R. A PP. P. 33.1(a). Moreover, any error in this line of questioning was cured when similar

information was elicited without objection during the examination of other witnesses. See

Coble, 330 S.W.3d at 282 & n.82. Defense counsel did not object when the prosecutor asked

Ceola during the guilt phase, “Do you know that Julia Jordan is – has a felony conviction for

drugs?” Ceola responded, “I don’t know the whole story, but . . . when they were doing the

whole thing at the hospital about the custody thing, [] they had mentioned it.” Also, as

previously discussed in point of error nine, during the punishment phase, the prosecutor

questioned appellant’s sister, Chineyere, about their mother’s arrests. Although defense

counsel objected generally to this line of questioning, the objection was properly overruled. Miller - 38

Counsel did not lodge a separate objection when the prosecutor asked Chineyere, “When did

[your mother] go on the ten years deferred adjudication probation for a felony?” Thus, the

same information about appellant’s mother was elicited without objection during the

examination of other witnesses. Point of error ten is overruled.

In point of error eleven, appellant complains that the trial court erroneously overruled

his objections to the prosecutor’s improper cross-examination of Terrance Green.

Specifically, the trial court allowed the prosecutor to question Terrance about a fight that he

had been in, when this fight did not result in a conviction and appellant was not part of it.

Appellant contends that this extraneous bad act had nothing to do with appellant’s character,

and its probative value was substantially outweighed by its prejudicial effect under Rule 403.

See T EX. R. E VID. 403. He incorporates his arguments from points of error seven, eight, and

nine, and urges that the “net effect of this improper cross examination of [a]ppellant’s

character witnesses [was] in effect [to] demonize them and [undermine] their credibility to

such an extent that harm has been shown.”

The record reflects that the same questions and answers had already come in without

objection before the complained-of examination, and so any error in overruling appellant’s

objection was cured. See Coble, 330 S.W.3d at 282 & n.82. Terrance had already

acknowledged that he had gotten into a fight at the State Fair that resulted in his removal

from the grounds by the time defense counsel objected to the prosecutor’s continued

questioning about this matter. Because the same testimony had already come in, the Miller - 39

admission of this testimony will not result in reversal. Point of error eleven is overruled.

Future Dangerousness

In point of error twelve, appellant contends that the evidence is insufficient to support

the jury’s affirmative answer to the future-dangerousness special issue. He asserts that the

evidence adduced at trial indicated that he was twenty years old and the product of a good

upbringing. He played football and received a football scholarship to Arkansas Tech, where

he attended college for a little over a year before he moved back to Tyler. His character

witnesses all described him as a gentle, loving, and dedicated family member. Appellant’s

future-dangerousness expert testified that, of the factors that could increase an offender’s risk

for future violence, youth was appellant’s only risk factor. Therefore, argues appellant, “[t]he

evidence taken as a whole is legally insufficient for a rational jury to make the determination

that the appellant would be a future danger beyond a reasonable doubt.”

When reviewing the sufficiency of the evidence supporting the jury’s future-

dangerousness determination, we view the evidence in the light most favorable to the verdict

and determine whether, based on that evidence and reasonable inferences therefrom, any

rational trier of fact could have found beyond a reasonable doubt that there is a probability

that appellant would commit criminal acts of violence constituting a continuing threat to

society. See Martinez v. State, 327 S.W.3d 727, 730 (Tex. Crim. App. 2010); see also

Wardrip v. State, 56 S.W.3d 588, 593 (Tex. Crim. App. 2001). We do not weigh the evidence

of future dangerousness against countervailing evidence. See Brooks v. State, 323 S.W.3d Miller - 40

893, 894 (Tex. Crim. App. 2010) (“a reviewing court is required to defer to a jury’s

credibility and weight determinations”); see also McGinn v. State, 961 S.W.2d 161, 168-69

(Tex. Crim. App. 1998) (once the rationality of the future-dangerousness prediction is

established, it is impossible to determine whether the prediction is nevertheless wrong or

unjust because of countervailing evidence).

In determining the special issues, the jury is entitled to consider all of the evidence

presented at both the guilt and punishment stages of trial. Art. 37.071, § 2(d)(1); see also

Young v. State, 283 S.W.3d 854, 863 (Tex. Crim. App. 2009). The jury may consider a

variety of factors when determining whether a defendant will pose a continuing threat to

society. Wardrip, 56 S.W.3d at 594 & n.7. The circumstances of an offense, if “severe

enough,” may alone sustain an affirmative finding as to a defendant’s future dangerousness.

Rosales v. State, 841 S.W.2d 368, 381 (Tex. Crim. App. 1992).

In this case, the circumstances of the offense were severe. The jury had before it the

medical evidence of Kelynn’s numerous and extensive injuries. There was expert testimony

that, after two-year-old Kelynn was fatally injured, he would not have died immediately, and

his distress would have been obvious to his caregivers. Yet appellant failed to seek help for

Kelynn. Instead, he spoke with his cousin, Gardner, on the phone and told him that he had

left Kelynn alone at the pool. The evidence recovered from the apartment included Kelynn’s

blood-stained shirt, “wet wipes” stained with blood and fecal matter, a section of the living-

room carpet stained with Kelynn’s blood, and a towel with multiple blood stains. Kelynn’s Miller - 41

underwear and shorts contained blood and fecal matter. The jury could reasonably infer from

this evidence that, after appellant fatally injured Kelynn, he attempted to set the stage for the

story he had concocted. Appellant called Ceola and told her to come home, but did not call

9-1-1. Additionally, appellant gave two separate false statements to the police about the

circumstances in which Kelynn was fatally injured.

Further, the jury had before it evidence of appellant’s prior violent conduct. There

was evidence that appellant had physically injured Kelynn on previous occasions, including

breaking his rib by throwing him into a wall and spanking him so hard that red welts rose on

his skin, and that Kelynn was afraid of appellant. Although Ceola denied that appellant had

physically abused her, her downstairs neighbors testified that they heard loud noises that

sounded like domestic disturbances coming from her apartment several nights a week. The

noises included banging, crashing, children crying, and the sound of someone being hit and

thrown around while a woman screamed and yelled for it to stop. On one occasion, they

called 9-1-1 and reported hearing an adult man, an adult woman, and children yelling and

crying. They reported that they heard sounds of things slamming and banging and a woman

screaming, “You’ve broken my ear drum, it’s bleeding.” The neighbors called the police that

night because the sounds were so bad that they were afraid that the man was going to kill the

woman. When the police arrived, appellant was uncooperative and refused to identify

himself. Ceola recalled that episode when she testified. She denied that appellant had

physically assaulted her, but acknowledged that appellant had locked her out of their Miller - 42

bedroom, keeping their infant, Ty, in the room with him because he was angry that Kelynn

wanted to stay at the apartment with her instead of going to the store with appellant. She

admitted that he had been throwing things around and slamming doors and that she had asked

appellant’s mother to come to their apartment to help her.

In addition to evidence of appellant’s prior violent conduct toward Kelynn and Ceola,

the jury had before it evidence that appellant had committed violent assaults against others

with little or no provocation. In high school, appellant once confronted and fought with

another student after his cousin told him that the student had said something rude to her.

Appellant, who was 6’4” and 240 pounds, would also join in with others to attack a single,

smaller victim. For example, the year after he graduated from high school, appellant,

Gardner, Terrance, and another friend assaulted a seventeen-year-old student at a local high-

school dance. The victim, Deandre Oliver, testified that he and Terrance had been

“dance-battling” when Terrance pushed him. Appellant then punched him in the face,

causing him to fall down. Then, Gardner hit him with a chair. Deandre testified that he was

kicked several times as he lay on the ground. He did not know why appellant punched him

because the two of them had never had a problem.

In another incident that occurred about two months before the present offense,

appellant and Joshua accompanied appellant’s sister, Chineyere, to an apartment complex

where Dramon Green, the father of her child, lived. Appellant drove them there in his

mother’s van at 2:30 a.m., ostensibly to pick up some clothes and toys for Chineyere’s baby. Miller - 43

When they arrived at the apartment complex, however, they saw that Dramon and his other

girlfriend, Chelsea Chimney, were sitting in Chelsea’s parked car with the windows rolled

down. Appellant parked his van directly behind Chelsea’s car so that it was blocked in.

Chineyere then walked over to the car, opened the passenger door, and told Dramon to get

out. He started to get out, and Chineyere appeared to be walking back to the van, but then

Chelsea heard appellant say, “Go get that bitch.” Chineyere then turned around and

approached the driver’s side door of Chelsea’s car, yelling at Chelsea to get out. As she

continued yelling, Chineyere reached in through the open window and poked Chelsea on the

head. Chelsea told Chineyere that she was not going to fight her and asked her to get away

from the car and move the van so she could leave, but Chineyere continued yelling and

poking at her. Chelsea put her car into reverse, but Chineyere would not get away from her

and appellant would not move the van.

Eventually, Chelsea put her car back into park and got out to fight with Chineyere.

After a couple of minutes of fighting, Chelsea knocked Chineyere down, got on top of her,

and started hitting her. Appellant then jumped in and punched Chelsea in the face, causing

her to fall down. Appellant repeatedly kicked and kneed Chelsea as she lay on the concrete.

She managed to get away from him and ran to the sidewalk where there were onlookers, but

no one came forward to help her. Chineyere followed Chelsea and continued fighting with

her until the police arrived. The responding officer who spoke with appellant after the fight

testified that appellant explained that he had punched and kicked Chelsea because he “wasn’t Miller - 44

going to let his sister get whooped.”

Finally, there was evidence that appellant had disciplinary problems in jail following

his arrest, including an incident in which he repeatedly disobeyed a guard and then grabbed

for his hand, so that another guard had to intervene to resolve the situation. In view of this

evidence, we conclude that a rational trier of fact could have found beyond a reasonable

doubt that there is a probability that appellant would commit criminal acts of violence

constituting a continuing threat to society. See Lucio v. State, 351 S.W.3d 878, 885-86 (Tex.

Crim. App. 2011). Point of error twelve is overruled.

Challenges to Death-Penalty Scheme

Appellant’s points of error thirteen through twenty-eight challenge the death-penalty

scheme in Texas. In points of error thirteen and fourteen, appellant asserts that Article 37.071

violates the Eighth Amendment because it allows the jury too much discretion in determining

who should live and who should die and lacks minimal standards and guidance for avoiding

the arbitrary and capricious imposition of the death penalty. In addition, the mitigation

special issue sends mixed signals to the jury, such that any verdict with respect to mitigation

is intolerable and unreliable. We have rejected similar arguments before, and appellant has

not persuaded us to revisit them here. See Coble, 330 S.W.3d at 297; Feldman v. State, 71

S.W.3d 738, 757 (Tex. Crim. App. 2002); Ladd v. State, 3 S.W.3d 547, 573 (Tex. Crim. App.

1999); Raby v. State, 970 S.W.2d 1, 9 (Tex. Crim. App. 1998). Points of error thirteen and

fourteen are overruled. Miller - 45

In point of error fifteen, appellant asserts that Article 37.071 violates due process by

implicitly placing the burden of proving mitigation onto appellant rather than requiring the

jury to find the mitigation issue against appellant under the “beyond a reasonable doubt”

standard. We have rejected similar arguments before. See Blue v. State, 125 S.W.3d 491, 501

(Tex. Crim. App. 2003); Raby, 970 S.W.2d at 9. Point of error fifteen is overruled.

In point of error sixteen, appellant asserts that the trial court erred by overruling his

motion to hold Article 37.071, sections 2(e) and 2(f), unconstitutional under the Texas

Constitution’s due-course-of-law provision because the statute shifts the burden of proof to

appellant. Appellant is obligated to point out to this Court where in the record he preserved

error. See T EX. R. A PP. P. 33.1(a), 38.1(h); see also Davis v. State, 313 S.W.3d 317, 352-53

(Tex. Crim. App. 2010). However, appellant does not indicate where in the record he filed

such a motion and obtained a ruling on it. Therefore, he has failed to demonstrate that he

preserved error. Point of error sixteen is overruled.

In point of error seventeen, appellant asserts that the death-penalty scheme violates

due process by failing to place the burden on the State to prove the absence of sufficient

mitigating circumstances beyond a reasonable doubt in violation of Apprendi v. New Jersey,

530 U.S. 466 (2000), and its progeny. We have repeatedly rejected similar arguments. See

Coble, 330 S.W.3d at 296; Blue, 125 S.W.3d at 501; Raby, 970 S.W.2d at 9. Point of error

seventeen is overruled.

In point of error eighteen, appellant asserts that the death-penalty scheme violates due Miller - 46

process of law and his right to be free from cruel and unusual punishment by requiring at

least ten “no” votes for the jury to return a negative answer to the future-dangerousness

special issue or a positive answer to the mitigation special issue. He argues that this

requirement constitutes an impermissible built-in dynamite charge, injects arbitrariness into

sentencing, and violates Mills v. Maryland, 486 U.S. 367 (1988), because of the risk that

jurors will believe that they have to find sufficient mitigating factors unanimously before

they can answer the mitigation special issue affirmatively. We have rejected these arguments

in previous cases. See Williams v. State, 301 S.W.3d 675, 694 (Tex. Crim. App. 2009);

Druery v. State, 225 S.W.3d 491, 509 (Tex. Crim. App. 2007); Prystash v. State, 3 S.W.3d

522, 536 (Tex. Crim. App. 1999). Point of error eighteen is overruled.

In point of error nineteen, appellant asserts that the death-penalty scheme violates his

rights to be free from cruel and unusual punishment, to an impartial jury, and to due process

of law because of vague, undefined terms in the punishment-phase jury instructions.

Specifically, appellant complains that the trial court did not define “probability,” “continuing

threat to society,” and “criminal acts of violence,” which are terms that are so vague and

indefinite that their inclusion violated his fundamental rights, such that there is no rational

process for imposing the death penalty and no rational review on appeal. We have repeatedly

rejected these claims. See Coble, 330 S.W.3d at 297. Point of error nineteen is overruled.

In points of error twenty and twenty-one, appellant asserts that the death-penalty

scheme violates his right to be free from cruel and unusual punishment, due process of law, Miller - 47

and the Texas Constitution’s due course of law provision because it is impossible to

simultaneously restrict the jury’s discretion to impose the death penalty while also allowing

the jury unlimited discretion to consider all evidence militating against imposition of the

death penalty.4 He relies primarily on Justice Blackmun’s dissenting opinion in Callins v.

Collins, 510 U.S. 1141 (1994). This Court and the United States Supreme Court have

rejected this claim. See Turner v. State, 87 S.W.3d 111, 118 (Tex. Crim. App. 2002) (citing

Callins, 510 U.S. at 1141-42 (Scalia, J., concurring)). The death-penalty scheme narrows the

class of death-eligible defendants and provides the jury with a vehicle to fully consider

mitigating evidence. See Saldano v. State, 232 S.W.3d 77, 107 (Tex. Crim. App. 2007); see

also McFarland v. State, 928 S.W.2d 482, 520 (Tex. Crim. App. 1996) (rejecting argument

that death-penalty scheme is per se unconstitutional because the requirement that the jury

consider mitigating evidence contradicts the requirement of “structured discretion”). Points

of error twenty and twenty-one are overruled.

In point of error twenty-two, appellant asserts that the trial court erred in overruling

his motion to hold Article 37.071, sections 2(c) and 2(f), unconstitutional for failing to

require the jury to consider the issue of mitigation in violation of the Eighth Amendment.

He argues that capital-murder statutes that have been held constitutional all require that the

jury be instructed that it must consider all mitigating evidence. Appellant does not indicate

4 Appellant makes no distinction between his rights under the federal and Texas constitutions. Therefore, we will treat them as being the same in this context. See Luquis v. State, 72 S.W.3d 355, 364 (Tex. Crim. App. 2002). Miller - 48

where in the record he filed and obtained a ruling on such a motion. See T EX. R. A PP. P.

33.1(a) & 38.1(h); see also Davis, 313 S.W.3d at 352-53. Therefore, appellant has failed to

demonstrate that he preserved error. Moreover, the record shows that the jury in this case

was instructed to fully consider and give effect to all evidence, including mitigating evidence.

See Heiselbetz v. State, 906 S.W.2d 500, 508 (Tex. Crim. App. 1995) (citing Penry v.

Lynaugh, 492 U.S. 302, 323 (1989)); see also Johnson v. Texas, 509 U.S. 350, 367 (1993)

(appellate courts evaluate jury instructions with a commonsense understanding in the light

of all that has taken place at the trial). Point of error twenty-two is overruled.

In point of error twenty-three, appellant asserts that the “Penry issue”5 in Article

37.071 is unconstitutional because it fails to place the burden of proof on the State with

respect to aggravating evidence. He argues that the mitigation special issue is a conduit for

aggravating as well as mitigating factors, and that the mitigation issue invites jurors to weigh

aggravating against mitigating factors. He claims that the jury instruction is silent regarding

the burden of proof as to aggravating factors, which implies that the defense has the burden

to disprove aggravating factors and to prove mitigating factors, rendering the instruction

unconstitutional under the Eighth and Fourteenth Amendments. Appellant adds, in point of

error twenty-four, that the “Penry issue” permits the type of open-ended discretion that was

condemned in Furman v. Georgia. 408 U.S. 238 (1972). We have rejected these claims. See

Coble, 330 S.W.3d at 297; Ladd, 3 S.W.3d at 573; Raby, 970 S.W.2d at 9; see also Williams,

5 We infer that appellant uses the term “Penry issue” to refer to the mitigation instructions set forth in Article 37.071, sections 2(e) and 2(f). Miller - 49

301 S.W.3d at 694. Points of error twenty-three and twenty-four are overruled.

In point of error twenty-five, appellant asserts that the capital-sentencing scheme is

unconstitutional under the Eighth and Fourteenth Amendments because it does not permit

meaningful appellate review. He argues that the Court is required by Article 44.251 and the

Constitution to review on appeal the sufficiency of the evidence supporting a negative

answer to the mitigation issue. We have rejected similar claims, and appellant has not

persuaded us to revisit them. See Blue, 125 S.W.3d at 504; Cockrell v. State, 933 S.W.2d 73,

92 (Tex. Crim. App. 1996). Point of error twenty-five is overruled.

In point of error twenty-six, appellant asserts that the trial court erred in overruling

his second motion to set aside the indictment based on constitutional defects of the death-

penalty scheme. He does not indicate where in the record he filed and obtained a ruling on

such a motion. See T EX. R. A PP. P. 33.1(a), 38.1(h); see also Davis, 313 S.W.3d at 352-53.

Point of error twenty-six is overruled.

In points of error twenty-seven and twenty-eight, appellant asserts that the cumulative

effect of the constitutional violations committed during his trial proceedings denied him due

process under the United States Constitution and due course of law under the Texas

Constitution. Because we have rejected appellant’s individually asserted constitutional

violations, there is no error to cumulate. See Chamberlain v. State, 998 S.W.2d 230, 238 Miller - 50

(Tex. Crim. App. 1999); see also Wyatt v. State, 23 S.W.3d 18, 30 (Tex. Crim. App. 2000).6

Points of error twenty-seven and twenty-eight are overruled.

We affirm the judgment of the trial court.

Delivered: May 23, 2012

Do Not Publish

6 As discussed in point of error eight, above, any error with regard to the cross- examination of appellant’s character witnesses was non-constitutional error that did not affect his substantial rights to a fair sentencing trial.