Muhammad, Naim

• Court: Court of Appeals of Texas
• Decided: February 3, 2015
• Docket: AP-77,021
• Status: Published

Opinion

AP-77,021 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 1/30/2015 12:33:47 PM Accepted 2/3/2015 9:56:16 AM February 3, 2015 ABEL ACOSTA Oral Argument is Requested CLERK

No. AP-77,021

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

NAIM RASOOL MUHAMMAD, Appellant v. THE STATE OF TEXAS, Appellee

On appeal from the Criminal District Court No. 4 of Dallas County, Texas In Cause No. F11-00698

STATE’S BRIEF

Counsel of Record: Susan Hawk Jaclyn O. Lambert (SBN 24049262) Criminal District Attorney Rebecca D. Ott (SBN 24074842) Dallas County, Texas Lisa Smith (SBN 00787131) Assistant District Attorneys Frank Crowley Courts Building 133 N. Riverfront Blvd., LB-19 Dallas, Texas 75207-4399 (214) 653-3625 (214) 653-3643 Fax joconnor@dallascounty.org

Attorneys for the State of Texas TABLE OF CONTENTS

TABLE OF AUTHORITIES ......................................................................................... VII

STATEMENT REGARDING ORAL ARGUMENT ........................................................ XIII

STATEMENT OF THE CASE....................................................................................... 1

STATEMENT OF FACTS ............................................................................................ 1

A. EVIDENCE AT GUILT-INNOCENCE ............................................................................. 1

B. THE STATE’S PUNISHMENT EVIDENCE ..................................................................... 11

C. APPELLANT’S PUNISHMENT EVIDENCE .................................................................... 26

B. THE STATE’S REBUTTAL EVIDENCE ......................................................................... 33

SUMMARY OF ARGUMENT ................................................................................... 35

ARGUMENT.......................................................................................................... 39

ISSUES 1-20: DENIAL OF DEFENSE CHALLENGES FOR CAUSE ............................................ 39

The Trial Court Properly Denied Appellant’s Challenges for Cause ................ 43

Issue 1: Milton Powell ............................................................................... 43

Issue 1: Milton Powell ............................................................................... 43

Issue 2: Georgia S. Nichols ........................................................................ 48

Issue 3: Dee Jay Earley .............................................................................. 53

Issue 4: Timothy Tinsley ............................................................................ 57

Issue 5: Robin Linn .................................................................................... 61

Issue 6: Charles Stout ................................................................................ 63

Issue 7: Allen Harrington ........................................................................... 64 ii Issue 8: Anthony Morrison ........................................................................ 67

Issue 9: Enriquez Martinez ........................................................................ 70

Issue 10: Paul Zugelder ............................................................................. 72

Issue 11: David Hornstein.......................................................................... 75

Issue 12: Andrea Griffith ........................................................................... 76

Issue 13: Bradford McCutheon .................................................................. 77

Issue 14: Elvira Corpus .............................................................................. 78

Issue 15: Temple Koestner ........................................................................ 81

Issue 16: Nancy Munn ............................................................................... 85

Issue 17: Ernest Hand ................................................................................ 88

Issue 18: Elizabeth McDaniel ..................................................................... 92

Issue 19: Arleen Jimenez ........................................................................... 93

Issue 20: Dan Blanks.................................................................................. 94

ISSUES 21 AND 22: CONSTITUTIONAL RIGHT TO FAIR AND IMPARTIAL JURY ........................ 96

Appellant Was Not Deprived of a Lawfully Constituted Jury ......................... 96

ISSUES 23-26: ADMISSION OF AUTOPSY PHOTOGRAPHS ................................................ 96

Applicable Law.............................................................................................. 97

The Trial Court Did Not Abuse its Discretion by Overruling Appellant’s Objections to State’s Exhibits 4-9 and 11-23 ................................................. 98

The Trial Court Did Not Abuse its Discretion by Overruling Appellant’s Objections to State’s Exhibits 77 and 78 ..................................................... 102

ISSUES 27 AND 41: JURY ARGUMENT....................................................................... 104

iii Applicable Law............................................................................................ 104

The Trial Court Did Not Err By Overruling Appellant’s Objection to the State’s Closing Argument at Guilt-Innocence .............................................. 106

The Trial Court Did Not Err by Overruling Appellant’s Objection to the State’s Closing Argument at Punishment .................................................... 113

ISSUE 28: ADMISSION OF APPELLANT’S STATEMENTS TO CPS WORKER ........................... 119

Applicable Law............................................................................................ 120

Womack’s Testimony Was Properly Admitted ............................................ 123

Any Error Harmless ..................................................................................... 124

ISSUE 29: ADMISSION OF STATE’S EXHIBIT 173.......................................................... 124

Applicable Law............................................................................................ 126

The Trial Court Did Not Abuse its Discretion by Admitting State’s Exhibit 173 .................................................................................................. 127

Any Error Harmless ..................................................................................... 128

ISSUES 30-32: ADMISSION OF TESTIMONY FROM REFRESHED MEMORY .......................... 129

Applicable Law............................................................................................ 129

Officer Chris Havens .................................................................................... 130

Officer Harold Andrews............................................................................... 132

Officer Brandon Hernandez ........................................................................ 134

ISSUES 33 AND 37: TESTIMONY OF OFFICER DAVID SOLOMON ...................................... 135

The Trial Court Did Not Err, and Appellant Was Not Harmed, by the Admission of Officer Solomon’s Testimony ................................................. 135

ISSUE 34: TESTIMONY OF WARDEN MELODYE NELSON ................................................ 138 iv The Trial Court Did Not Err, and Appellant Was Not Harmed, by the Admission of Warden’s Nelson’s Testimony ................................................ 138

ISSUE 35: DENIAL OF HEARING ON EXTRANEOUS OFFENSES AND BAD ACTS ...................... 141

Applicable Law............................................................................................ 143

Applicability of Mitchell v. State.................................................................. 144

Appellant Has Not Shown an Abuse of Discretion or Harm ......................... 145

ISSUE 36: DENIAL OF MOTION FOR MISTRIAL ............................................................ 148

Applicable Law............................................................................................ 150

The Trial Court Did Not Abuse its Discretion by Denying Appellant’s Motion for Mistrial ..................................................................................... 150

ISSUES 38 AND 39: CROSS-EXAMINATION OF APPELLANT’S EXPERTS ............................... 151

Applicable Law............................................................................................ 152

Dr. Kellie Gray-Smith ................................................................................... 152

Dr. Gilbert Martinez .................................................................................... 158

Error, If Any, Was Harmless ........................................................................ 161

ISSUE 40: TRIAL COURT’S STATEMENT REGARDING SEQUESTRATION ............................... 162

Applicable Law............................................................................................ 165

The Trial Court’s Statement Was Not an Improper Comment on the Weight of the Evidence ............................................................................... 166

The Trial Court’s Comment Was Not Calculated to Benefit the State or Prejudice Appellant ..................................................................................... 169

ISSUE 42: LEGAL SUFFICIENCY OF FUTURE DANGEROUSNESS SPECIAL ISSUE....................... 170

Applicable Law............................................................................................ 170 v The Evidence is Legally Sufficient to Support the Jury’s Finding of Future Dangerousness ........................................................................................... 172

ISSUES 43-54: FEDERAL CONSTITUTIONAL ISSUES ....................................................... 179

PRAYER .............................................................................................................. 183

CERTIFICATE OF COMPLIANCE............................................................................ 184

CERTIFICATE OF SERVICE .................................................................................... 184

vi TABLE OF AUTHORITIES Cases

Adanandus v. State, 866 S.W.2d 210 (Tex. Crim. App. 1993) .......................................................... 143

Arzaga v. State, 86 S.W.3d 767 (Tex. App.—El Paso 2002, no pet.) .......................................... 146

Becknell v. State, 720 S.W.2d 526 (Tex. Crim. App. 1986) ................................................... 166, 169

Berry v. State, 233 S.W.3d 847 (Tex. Crim. App. 2007) ................................................... 121, 123

Brown v. State, 270 S.W.3d 564 (Tex. Crim. App. 2008) ........................... 111, 112, 113, 118, 119

Broxton v. State, 909 S.W.2d 912 (Tex. Crim. App. 1995) .......................................................... 154

Campbell v. State, 610 S.W.2d 754 (Tex. Crim. App. [Panel Op.] 1980) ........................................ 105

Cantu v. State, 939 S.W.2d 627 (Tex. Crim. App. 1997) .......................................................... 152

Carroll v. State, 916 S.W.2d 494 (Tex. Crim. App. 1996) .......................................................... 152

Carter v. State, 614 S.W.2d 821 (Tex. Crim. App. [Panel Op.] 1981) ........................................ 118

Chambers v. State, 866 S.W.2d 9 (Tex. Crim. App. 1993) .............................................................. 152

Clark v. State, 878 S.W.2d 224 (Tex. App.—Dallas 1994, no pet.) ......................................... 166

vii Coble v. State, 871 S.W.2d 192 (Tex. Crim. App. 1993) (en banc) .......................................... 105

Colburn v. State, 966 S.W.2d 511 (Tex. Crim. App. 1998) ............................................................ 41

Druery v. State, 225 S.W.3d 491 (Tex. Crim. App. 2007) .......................................................... 173

Escamilla v. State, 143 S.W.3d 814 (Tex. Crim. App. 2004) .......................................................... 182

Estrada v. State, 313 S.W.3d 274 (Tex. Crim. App. 2010) ................................................... 108, 171

Feldman v. State, 71 S.W.3d 738 (Tex. Crim. App. 2002) ......................................................... 40, 41

Flowers v. State, 220 S.W.3d 919 (Tex. Crim. App. 2007) ........................................... 126, 127, 128

Freeman v. State, 340 S.W.3d 717 (Tex. Crim. App. 2011) .......................................................... 105

Gallo v. State, 239 S.W.3d 757 (Tex. Crim. App. 2007) ............................................. 97, 101, 139

Gamboa v. State, 296 S.W.3d 574 (Tex. Crim. App. 2009) ........................................... 147, 151, 168

Gray v. State, 233 S.W.3d 295 (Tex. Crim. App. 2007) ............................................................ 96

Guidry v. State, 9 S.W.3d 133 (Tex. Crim. App. 1999) .............................................................. 165

Hawkins v. State, 135 S.W.3d 72 (Tex. Crim. App. 2004) ............................................................ 150

viii Hoang v. State, 997 S.W.2d 678 (Tex. App.—Texarkana 1999, no pet.)............................ 166, 167

Human v. State, 749 S.W.2d 832 (Tex. Crim. App. 1988 ........................................................... 127

Jackson v. State, 992 S.W.2d 469 (Tex. Crim. App. 1999) .......................................................... 145

Keeton v. State, 724 S.W.2d 58 (Tex. Crim. App. 1987) ............................................................ 171

Kemp v. State, 846 S.W.2d 289 (Tex. Crim. App. 1992) ........................................... 143, 145, 147

Linder v. State, 828 S.W.2d 290 (Tex. App.—Houston [1st Dist.] 1992, pet. ref’d) .................. 111

Long v. State, 823 S.W.2d 259 (Tex. Crim. App. 1991) .......................................................... 101

Mann v. State, 13 S.W.3d 89, 94 (Tex. App.—Austin 2000), aff'd, 58 S.W.3d 132, (Tex. Crim. App. 2001) ...................................................................................................... 146

McCoy v. State, 877 S.W.2d 844 (Tex. App.—Eastland 1994, no pet.) .............................. 129, 135

McFarland v. State, 845 S.W.2d 824 (Tex. Crim. App. 1992) .......................................................... 160

Miranda v. Arizona, 384 U.S. 436 (1966) ........................................................................................ 121

Mitchell v. State, 931 S.W.2d 950 (Tex. Crim. App. 1996) .......................................................... 144

Mosley v. State, 983 S.W.2d 249 (Tex. Crim. App. 1998) .......................................................... 150 ix Narvaiz v. State, 840 S.W.2d 415 (Tex. Crim. App. 1992) .......................................................... 160

Nenno v. State, 970 S.W.2d 549 (Tex. Crim. App. 1998) .......................................................... 118

Palermo v. State, 992 S.W.2d 691 (Tex. App.—Houston [1st Dist.] 1999, no pet.) ..................... 110

Paredes v. State, 129 S.W.3d 530 (Tex. Crim. App. 2004) ............................................................ 97

Powell v. State, 898 S.W.2d 821 (Tex. Crim. App. 1994) ................................................... 143, 147

Prystash v. State, 3 S.W.3d 522 (Tex. Crim. App. 1999) .............................................................. 145

Ripkowski v. State, 61 S.W.3d 378 (Tex. Crim. App. 2001) ............................................................ 102

Sadler v. State, 977 S.W.2d 140 (Tex. Crim. App. 1998) ............................................................ 40

Saldano v. State, 232 S.W.3d 77 (Tex. Crim. App. 2007) ........................................... 41, 42, 43, 182

Simon v. State, 203 S.W.3d 581 (Tex. App.—Houston [14th Dist.] 2006, no pet.) ............ 166, 169

Solomon v. State, 49 S.W.3d 356 (Tex. Crim. App. 2001) ............................................................ 162

Spence v. State, 795 S.W.2d 743 (Tex. Crim. App. 1990) .......................................................... 143

Standefer v. State, 59 S.W.3d 177 (Tex. Crim. App. 2001) .....48, 53, 56, 58, 65, 69, 71, 75, 76, 80, 91

x Threadgill v. State, 146 S.W.3d 654 (Tex. Crim. App. 2004) ........ 40, 41, 45, 47, 59, 67, 80, 83, 85, 87

Torres v. State, 92 S.W.3d 911 (Tex. App.—Houston *14th Dist.+ 2002, pet. ref’d) ................. 110

Turner v. State, 805 S.W.2d 423 (Tex. Crim. App. 1991) .......................................................... 154

Walters v. State, 247 S.W.3d 204 (Tex. Crim. App. 2007) .......................................................... 161

Wardrip v. State, 56 S.W.3d 588 (Tex. Crim. App. 2001) ............................................................ 171

Welch v. State, 993 S.W.2d 690 (Tex. App.—San Antonio 1999, no pet.)................................ 146

Wesbrook v. State, 29 S.W.3d 103 (Tex. Crim. App. 2000) ............................................................ 105

Wilkerson v. State, 173 S.W.3d 521 (Tex. Crim. App. 2005) ........................................... 121, 122, 123

Williams v. State, 958 S.W.2d 186 (Tex. Crim. App. 1997) ............................................... 97, 98, 137

Young v. State, 283 S.W.3d 854 (Tex. Crim. App. 2009) ........................... 104, 143, 147, 171, 172

Young v. State, 891 S.W.2d 945 (Tex. Crim. App. 1994) ................................... 130, 132, 133, 135

Statutes

Tex. Code Crim. Proc. Ann. art. 13.17 (West 2005) .............................................. 46

Tex. Code Crim. Proc. Ann. art. 35.16(a)(9) (West 2006) ................................. 40, 73

Tex. Code Crim. Proc. Ann. art. 35.16(b)(3) (West 2006) ...................................... 40 xi Tex. Code Crim. Proc. Ann. art. 35.16(c)(2) (West 2006) ................................. 40, 46

Tex. Code Crim. Proc. Ann. art. 35.23 (West 2006) ..................................... 165, 166

Tex. Code Crim. Proc. Ann. art. 37.071, § 2(a)(1) (West Supp. 2014) ................. 143

Tex. Code Crim. Proc. Ann. art. 37.071, § 2(b)(1) (West Supp. 2014) ................. 170

Tex. Code Crim. Proc. Ann. art. 37.071, § 2(c) (West Supp. 2014) ...................... 170

Tex. Code Crim. Proc. Ann. art. 37.071, § 2(h) (West Supp. 2014) ......................... 1

Tex. Code Crim. Proc. Ann. art. 38.05 (West 1979) ............................................ 165

Rules

Tex. R. App. P. 33.1(a) .... 43, 49, 54, 65, 70, 78, 81, 89, 94, 107, 108, 131, 154, 156, 159

Tex. R. App. P. 38.1(i) ......................................................................................... 108

Tex. R. App. P. 44.2(b) ........... 111, 113, 118, 119, 124, 128, 140, 161, 162, 166, 169

Tex. R. Evid. 104 ................................................................................................. 145

Tex. R. Evid. 401 ............................................................................................ 97, 137

Tex. R. Evid. 403 ................................................................................................... 98

Tex. R. Evid. 611(b) ..................................................................................... 152, 156

Tex. R. Evid. 612 ................................................................................................. 129

Tex. R. Evid. 702 ................................................................................................. 139

Constitutional Provisions

U.S. CONST. amend. V .......................................................................................... 121

xii STATEMENT REGARDING ORAL ARGUMENT

The State requests the opportunity to present oral argument if the Court

grants appellant’s request to argue.

xiii TO THE HONORABLE COURT OF CRIMINAL APPEALS:

The State of Texas submits this brief in response to the brief of appellant,

Naim Rasool Muhammad.

STATEMENT OF THE CASE

This is an automatic appeal from a sentence of death. See Tex. Code Crim.

Proc. Ann. art. 37.071, § 2(h) (West Supp. 2014). A Dallas County jury found

appellant guilty of capital murder for drowning his two sons in the same criminal

transaction. (CR1: 2; CR2: 395-400, 401, 410-13; RR44: 39). In accordance with the

jury’s answers to the special issues, the trial court sentenced him to death on May

23, 2013. (CR2: 402-07, 408-09, 410-13; RR50: 100-04). Appellant presents fifty-

four allegations of reversible error.

STATEMENT OF FACTS

A. Evidence at Guilt-Innocence

Kametra Sampson dated appellant for six years and they had three children

together: Naim Muhammad, Elijah Muhammad, and Jeremiah Muhammad.

(RR43: 76-77). Kametra ended her relationship with appellant in December of

2010. (RR43: 77).

1 In August of 2011, Kametra and her sons were living with Kametra’s

mother, Priscilla Sampson, on Terrell Street in Dallas. (RR43: 31-32, 59, 79-80).

Although Kametra and appellant were broken up, appellant showed up at

Priscilla’s annual back-to-school barbecue on August 20, 2011. (RR43: 33-37, 60,

81). Kametra arrived late to the barbecue with the boys and her boyfriend, Eric

Smith. (RR43: 34, 36-37, 87). Appellant confronted Kametra, telling her he did not

want another man raising his sons. (RR43: 38-39, 90-91). Kametra sent the boys

inside the house and her argument with appellant escalated. (RR43: 39-40, 91).

Kametra’s grandfather intervened and asked appellant to leave. (RR43: 40, 61,

91). Appellant returned later that evening with his mother to pick up the boys,

but Kametra and the boys were not home. (RR43: 41, 92).

Appellant returned to Priscilla’s house around 6:00 a.m. on the morning of

August 22, 2011. (RR43: 42, 93). It was the first day of kindergarten for the eldest

son, Naim. (RR43: 42, 62). Appellant asked to see his sons, but Priscilla would not

let him in. (RR43: 43, 93). Kametra came to the door and told appellant he was

not wanted there and needed to leave. (RR43: 22, 93-94). Priscilla’s neighbor,

Phyllis Lewis, was outside when appellant arrived and overheard them exchange

2 words at the front door. (RR43: 22). About thirty minutes later, Phyllis saw

appellant drive by the house on Terrell Street. (RR43: 15-16, 20-21).

Priscilla left the house with her youngest daughter, Jamie, to catch the bus

and Kametra walked down Terrell Street toward Frazier Elementary with Naim

and Elijah. (RR43: 44-45, 79, 95, 125). Kametra’s youngest son, Jeremiah, stayed

home with her brother, Brandon Turner. (RR43: 45, 64). As Kametra, Naim, and

Elijah reached the end of Terrell Street and crossed over Dolphin Street, appellant

swerved in front of them and jumped out of the vehicle he was driving. (RR43: 96-

97, 123-24). He demanded that they get in the car with him or he would hit

Kametra with a large rock he picked up off the ground. (RR43: 97-98, 124-25).

Kametra and the boys complied. (RR43: 98). Appellant continued driving in the

direction of the school, but when they reached the front of the school, appellant

turned the opposite direction and told them that Naim wasn’t going to school

today. (RR43: 100).

Kametra began crying and pleading with appellant to take Naim to school.

(RR43: 100-01). Appellant drove erratically and alternated between telling

Kametra they needed to get back together and yelling, hitting her, and

threatening to kill her and the boys. (RR43: 102-03, 106, 112). After driving

3 around for over an hour, they pulled up behind a constable near the intersection

of Camp Wisdom and R. L. Thornton Freeway. (RR43: 104, 126). Kametra jumped

out of the vehicle in the hopes of getting some help from the constable. (RR43:

105-08). Appellant grabbed her, but she was able to pull away and escape. (RR43:

109, 129). Kametra banged on the passenger window of the constable’s vehicle

and begged for help. (RR43: 110). As the constable directed her to the Shell gas

station at the intersection, appellant swerved around the car in front of him,

jumped the curb, and sped through the red light. (RR43: 110-11, 127).

The constable pulled into the Shell gas station and called the police for

Kametra. (RR43: 112-13). Appellant’s sisters, Aqueelah Green and Sekinah

Muhammad, were called and also came to the Shell gas station. (RR43: 114, 144,

146). Kametra went with Aqueelah to her brother’s house nearby on Songwood

Street in the hopes of finding appellant, but he was not there and Aqueelah drove

Kametra back to the Shell station. (RR43: 115, 117, 147-48).

Shortly after dropping off Kametra, Aqueelah received a phone from

appellant. (RR43: 150). When she asked where Naim and Elijah were, appellant

told her they were “gone with Abdullah.” (RR43: 150-51, 154). Abdullah was

Aqueelah’s and appellant’s eldest brother who was deceased. (RR43: 150-51, 159-

4 60). When Aqueelah asked what appellant meant by that, he said, “They gone.

They are dead.” (RR43: 151, 153). Appellant hung up, but he called Aqueelah back

a short time later. (RR43: 152). Aqueelah was driving during the second phone call

and arrived at her brother’s house on Songwood while she was still on the phone

with appellant. (RR43: 152-54). One of the police officers at the house asked her

to switch on her speakerphone and gave her specific questions to ask appellant.

(RR43: 154-55). At the officer’s direction, she asked appellant if he killed the kids

and he replied, “Yes.” (RR43: 155). When she asked how he killed his kids, he said

he drowned them. (RR43: 155). He told her he killed Naim first and then Elijah.

(RR43: 155). When she asked appellant where the kids were, he said he “didn’t

know” and that they were “in the creek somewhere.” (RR43: 155).

This information was still unknown to Kametra and her family. Priscilla

returned home around 10:00 a.m. and Kametra arrived shortly after her. (RR43:

45-46, 68, 117). Kametra had a bloody nose, blood on her clothes, red and

swollen eyes, and was very upset. (RR43: 46, 68, 117). She told Priscilla and

Brandon about what had happened with appellant on the way to school. (RR43:

46, 117). Brandon told them that appellant had tried to break into the house

shortly before they got home. (RR43: 45-46, 68, 117). Brandon explained that he

5 heard someone kick a window in the back of the house and break the glass.

(RR43: 52-56, 65). He went to investigate and saw appellant trying to enter the

house through the window. (RR43: 65). The window led into the room where

Jeremiah was sleeping. (RR43: 65). Brandon asked appellant what he was doing;

when appellant did not respond and just kept trying to come in, Brandon pushed

him back out of the window. (RR43: 65-66, 73). After appellant picked himself up

and was running away toward the back fence, he told Brandon: “Your nephews

are dead now.” (RR43: 66-67, 70-71). Brandon did not think anything of it

because he thought the boys were with Kametra on the way to school. (RR43: 67).

When Brandon relayed this information to Kametra, she became hysterical.

(RR43: 68-69, 117). They called 911 and Kametra left with the police officers who

responded to the call. (RR43: 47, 69, 117-18). Later that day, Priscilla was taken by

officers to Dallas Police headquarters. (RR43: 48). There, both she and Kametra

learned that Naim and Elijah were dead. (RR43: 48, 119).

Christal Fewell hung out with appellant at his brother’s house on Songwood

Street the night before the offense. (RR42: 143-46). Christal met appellant

through her cousin and they had been dating for two to three months. (RR42:

141-42). Appellant asked to borrow Christal’s car the next morning so he could

6 take his son to school. (RR42: 145). About an hour after appellant left, Christal got

out of bed, showered, and then began to worry about the whereabouts of

appellant and her car. (RR42: 150-51). A short time later she started receiving

phone calls from appellant’s family members asking: “Where is Rasool?” (RR42:

151-52). She also received a phone call from the Dallas Police Department and

provided them with a description of her car. (RR42: 154-55). When Christal was

leaving the house on Songwood, she saw her car drive down the street in front of

the house. (RR42: 154-55). She immediately called the Dallas Police back and

reported the sighting of her car. (RR42: 154-56). Appellant’s mother, Naimah

Muhammad, pulled up to the house at this time and was looking for appellant.

(RR42: 154-56). Shortly thereafter, several Dallas Police Officers also arrived at

the house. (RR42: 154-56). Christal received a phone call from appellant on her

cell phone; however, he would not tell her his whereabouts and only wanted to

talk to his mother. (RR42: 157-58).

The police officers eventually left the house on Songwood to search for

appellant, and Christal left with Naimah because she claimed to know the location

of Christal’s car. (RR42: 158-59; RR43: 175). They drove down the street and

appellant jumped into the backseat of Naimah’s car. (RR42: 160; RR43: 175).

7 Naimah drove a short ways further and dropped Christal off at the location where

appellant had left her car. (RR42: 161; RR43: 175-76). Naimah told Christal to hug

and kiss her child when she got home and tell him she loved him. (RR42: 161,

173). As Christal was driving home, she was pulled over by several police officers

and taken to Dallas Police Headquarters for questioning, where she learned about

the events of the morning and what appellant had done. (RR42: 161-62). A search

of Christal’s car revealed mud on the interior. (State’s Exhibits 25-36).

After Naimah dropped off Christal at her car, appellant told her where to

drive to find Naim and Elijah. (RR43: 176-77). From the service road of IH-35, they

turned on Brookside Drive and drove to a heavily wooded area at the end of the

road with a steep incline down to a shallow creek. (RR43: 176-77, 186, 191-92,

199-200). Naimah waited at the top next to a sewer manhole cover while

appellant went down to the creek and retrieved the boys one at a time. (RR43:

177-78, 194). Appellant brought Naim up from the creek first. (RR43: 178, 194).

He laid him on the ground and Naimah attempted to perform CPR. (RR43: 178-79,

194). Appellant went back down and retrieved Elijah from the creek. (RR43: 179,

194). After Naimah’s attempts at CPR were unsuccessful, appellant put both boys

in the backseat of her vehicle. (RR43: 179-80). They left the creek and drove back

8 toward the house on Songwood, but before they arrived appellant jumped out of

the vehicle. (RR43: 180-81). Naimah pulled into a parking lot on Ledbetter Road.

(RR43: 182). She saw an officer driving by, so she flagged him down and told him

that her grandbabies were in the back of her car. (RR43: 182-83). When the police

searched and photographed Naimah’s car, the backseat was muddy and wet.

(RR43: 190).

Appellant was eventually captured by police later that day. Michael Yeric, a

homicide detective with the Dallas Police Department, interviewed appellant at

the police headquarters when he was brought into custody. (RR43: 209-14;

State’s Exhibits 152-53, 167). Detective Yeric read appellant his rights, and

appellant indicated that he wanted to waive those rights and speak with the

detective. (RR43: 217, 233-34, 237-38). Appellant told Detective Yeric that he had

borrowed his friend Christal’s car that morning because he wanted to take his son

to his first day of school. (RR43: 239). He went to Priscilla’s home around 6:30

a.m., but was not allowed to see his kids. (RR43: 239). Appellant found Kametra

and the boys as they were walking to school, forced them into the car with him,

and began driving around. (RR43: 239-40). As they approached Camp Wisdom on

the service road of R. L. Thornton freeway, appellant and Kametra saw a

9 constable’s car. (RR43: 241). Appellant told Kametra, “Don’t get out of this car,”

and “if you jump out of this car, you don’t care about your kids.” (RR43: 241).

Kametra jumped out of the car and went to the passenger side of the constable’s

car, and appellant drove off. (RR43: 241). Appellant admitted to then driving to

the creek and drowning Naim and Elijah. (RR43: 220, 241).

When Detective Yeric visited the scene of the drowning, he noticed a

security camera mounted outside of Spirit Depot, a liquor store on the corner of

Brookside Drive and the service road. (RR43: 221-22, 225). Detective Yeric

obtained the video footage recorded by this camera on August 22, 2011. (RR43:

221-22; State’s Exhibits 155-68). The video footage showed that appellant first

drove down Brookside Drive in Christal’s car at 8:53 a.m. and exited a short time

later. (RR43: 222-23, 230). It then showed Naimah’s car drive down Brookside

Drive at 12:15 p.m. and exit a short time later. (RR43: 223, 230). This video

footage corroborated the information relayed to the detective by appellant,

Naimah, and other witnesses they interviewed during their investigation. (RR43:

233).

Dr. Tracy Dyer, a board-certified forensic pathologist and staff medical

examiner at the Southwestern Institute of Forensic Sciences (“SWIFS”), supervised

10 the autopsies of 3-year-old Elijah Muhammad and 5-year-old Naim Muhammad.

(RR42: 115-39). Both Elijah and Naim arrived at SWIFS in wet clothing with dirt

and debris scattered across their bodies. (RR42: 120-22, 134). Both boys had

scratches on their heads and hands; additionally, Elijah had scratches on his back,

legs, and feet. (RR42: 120-26, 136-37; State’s Exhibits 4-8, 10-21, 24). The internal

examination revealed that Elijah had bruising on his scalp, dirt and debris in his

airway, and an abundant amount of fluid in his lungs. (RR42: 126-30; State’s

Exhibits 22-24). Naim also had bruising on his scalp and fluid in his lungs. (RR42:

137-38; State’s Exhibits 9-10). Dr. Dyer determined that the cause of death for

both Elijah and Naim was drowning and that their manner of death was homicide.

(RR42: 130-31, 138-39; State’s Exhibits 10, 24).

After hearing this evidence, the jury returned a verdict of guilt in

approximately eight minutes. (RR44: 34, 41).

B. The State’s Punishment Evidence

During punishment, the State presented evidence showing that appellant’s

experience with the criminal justice system began at a young age and spanned a

period of about twenty years. This evidence was presented through business

11 records of prior criminal convictions, as well as live testimony regarding various

extraneous adjudicated and unadjudicated offenses.1

On January 30, 1993, appellant was arrested for burglary of a coin-operated

machine. (RR44: 111-12). Appellant and a cohort were removing quarters from a

vacuum cleaner at a car wash. (RR44: 112-13). When Dallas Police Officer John

James and his partner arrived at the location, appellant and his cohort fled. (RR44:

114). Appellant, who was thirteen years old at the time, was apprehended a few

blocks away and taken to the juvenile jail. (RR44: 114-15).

On February 26, 1993, Ivis Wright, a single mother of three, returned home

to find her back door had been kicked in and several items had been stolen from

her home, including a VCR, Nintendo gaming system, a cordless phone, money,

and candy. (RR44: 119-21). Five juvenile boys were apprehended fleeing Wright’s

home and placed under arrest for burglary. (RR44: 121, 124-27). Officer Chris

Havens identified Naim Rasool Muhammad as one of the perpetrators. (RR44:

127). On October 4, 1993, Dallas Police Officer David Solomon responded to a call

1 The judge gave both an oral and written instruction to the jury that they were not to consider extraneous offenses for any purpose unless they found and believed beyond a reasonable doubt that appellant committed the offenses, if any were committed, and even then they could only consider them in determining their answers to the special issues. (RR45: 41-42; CR2: 406).

12 reporting an auto theft in progress. (RR45: 82-84, 126-27). Officer Solomon pulled

over a vehicle matching the description of one of the stolen vehicles and

appellant was one of the passengers. (RR45: 86, 88, 127-28). Officer Solomon

determined that the passengers were not involved in the reported auto theft;

however, Officer Solomon arrested appellant because he had outstanding

warrants for two charges of burglary of a habitation, one of which was for the

burglary Wright’s home. (RR45: 89, 97-99, 100-01, 103, 128-30).

On June 16, 1993, appellant was arrested for possession of a stolen vehicle.

(RR45: 48-49, 51). Former Dallas Police Officer Sekethia Tejada pulled up behind a

Cadillac, ran the plates, and realized it was a stolen vehicle. (RR45: 48-49). When

she pulled the vehicle over, there were two young men inside; appellant, who

was fourteen years old at the time, was the passenger. (RR45: 50-51). The

steering column was broken and they had managed to start the engine without a

key. (RR45: 51).

On April 5, 1994, appellant committed burglary of a habitation. (RR44: 109;

State’s Exhibit 170). On May 25, 1994, a juvenile Order of Adjudication and

Judgment of Disposition with No Placement was entered and appellant was

sentenced to 12 months’ probation. (RR44: 109; State’s Exhibit 170).

13 On July 27, 1994, Dallas Police received a call reporting a burglary of a

vehicle that was in progress. (RR44: 140-41). Lieutenant Harold Andrews was

driving around the area where the burglary occurred and spotted appellant, who

matched the description of one of the suspects. (RR44: 142). Lt. Andrews

detained appellant and brought him back to the scene of the burglary, where he

was identified by the complainant as one of the perpetrators. (RR44: 142-43).

On August 18, 1994, appellant committed unauthorized use of a motor

vehicle and evading arrest. (RR44: 108-09; State’s Exhibit 171). A juvenile Order of

Adjudication and Judgment of Disposition with Placement was entered on

September 9, 1994, sentencing appellant to 12 months’ probation to be served in

the custody of Daytop Village. (RR44: 108-09; State’s Exhibit 171).

Daytop Village provides a 9-month program for 13 to 18 year olds and is

designed to rehabilitate juveniles so that they do not end up in “the system.”

(RR46: 9-11, 13). If a juvenile completes the program at Daytop, they are returned

to their family; if not, they are sent to the Texas Youth Commission (“TYC”), a

correctional facility for youth offenders. (RR46: 11, 13, 38). Youths attending

Daytop are given multiple opportunities to succeed in the program. (RR46: 12-13,

34). Daytop operates using the merit system and infractions are judged by peers,

14 not adults. (RR46: 10-11, 13). Daytop residents attend school, enjoy recreation

time, participate in group meetings, and also receive one-on-one counseling.

(RR46: 17-18). During his stay at Daytop, appellant had many difficulties and was

placed on a behavior contract in an effort to change his aggressive behavior

toward other residents. (RR46: 16; State’s Exhibit 177). Despite this contract, on

July 1, 1995, appellant physically assaulted another resident on two separate

occasions. (RR46: 16-17, 26; State’s Exhibit 177). Due to the two new assaults, as

well as the prior infractions resulting in the behavior contract, the leaders of the

program voted to discharge applicant from Daytop and send him to TYC. (RR46:

16-19, 32-33; State’s Exhibit 177).

While in TYC, appellant committed multiple infractions. On September 16,

1995, appellant was written up for disruptive behavior and threatening staff.

(RR46: 83). After being repeatedly instructed to be quiet, appellant stated that he

would like to “beat somebody down.” (RR46: 83). He then looked at former TYC

correctional officer Linda Parker and said “especially females.” (RR46: 81-83). On

December 12, 1995, appellant was written up for disruption of the program and

possession of razor blades and crushed aspirin. (RR46: 56, 59; State’s Exhibit 178).

According to former TYC correctional officer Michael Jaco, the inmates snorted

15 crushed aspirin to get high and often used razor blades to create weapons. (RR46:

52-53, 56-57). Appellant was trading the contraband for snacks. (RR46: 56, 63;

State’s Exhibit 178). On January 11, 1996, appellant was written up multiple times

for aggressive behavior toward other inmates, disruptive behavior in the

classroom, disobeying staff, and calling a pregnant female correctional officer a

“fat mother-fucker.” (RR46: 70-72). On August 17, 1996, appellant was written up

for a disruption on the volleyball court. (RR46: 77). When he was asked to leave,

appellant became explosive and cursed at staff members. (RR46: 77). He called

former TYC correctional officer Kenneth Allen a “fat mother-fucker” and told him

“fuck your mother.” (RR46: 74-75, 77-78). On August 27, 1996, appellant was

written up for rubbing his erect penis against the leg of his teacher, Nina Adams.

(RR47: 18-24). On September 15, 1996, appellant was written up for fighting.

(RR46: 40-42). He and his cohort assaulted another inmate while he was being

held down on a toilet. (RR46: 40-42). On September 20, 1996, he was written up

for being disruptive in the dining hall. (RR46: 78-79).

According to former correctional officer Gail Hamilton, appellant was not a

law abiding person while at TYC. (RR46: 36-37, 46). Many of the correctional

16 officers at TYC tried to talk to appellant and encourage him to stop the

progression of his criminal behavior to no avail. (RR46: 44-45, 54-55).

Appellant was released from TYC in December of 1996 and resumed his

criminal activity shortly thereafter. On July 30, 1997, appellant committed

burglary of a vehicle and evading arrest. (RR44: 109; State’s Exhibits 172, 173). On

September 19, 1997, he pleaded guilty to each offense and was sentenced to 12

months’ probation in each case, but he was subsequently revoked for failing to

comply with the conditions of his probation. (State’s Exhibit 172, 173).

On December 4, 1997, appellant committed theft at a Lowe’s store in Collin

County. (RR44: 108; State’s Exhibit 174). On September 28, 1998, he pleaded

guilty to the charge and was sentenced to probation for one year, but he was

subsequently revoked and sentenced to 180 days’ confinement. (State’s Exhibit

174).

On January 27, 1998, appellant committed burglary of a vehicle. (RR44:

109-10; State’s Exhibit 175). On February 11, 1998, he pleaded guilty to the

charge and was sentenced to 180 days’ confinement. (RR44: 109-10; State’s

Exhibit 175).

17 On July 4, 1999, Garland Police Officer Brandon Hernandez and several

other officers responded to a burglary alarm at a car lot off Forest Lane in Dallas.

(RR45: 60-63). Officer Hernandez and his partner spotted appellant walking away

from the business toward a suspicious vehicle that was running but did not have

its lights on. (RR45: 63-64). When another officer approached the vehicle on foot,

the vehicle sped away. (RR45: 64-65). Officer Hernandez and his partner chased

the vehicle and made a felony traffic stop. (RR45: 65). Appellant and two other

passengers were removed from the vehicle and the officers found a loaded

shotgun inside. (RR45: 65-66). They also found a bag of marijuana and a

screwdriver, a common burglary tool, just outside the vehicle that appeared to

have been thrown out by the passengers. (RR45: 66-67). When the officers

checked appellant’s name and date of birth in their system, they discovered he

had outstanding felony and probation warrants. (RR45: 69, 70-71). All three

passengers of the vehicle were arrested. (RR45: 70-71).

On April 7, 2001, Jeanette Harris, appellant’s next door neighbor at the

time, caught appellant peeping at her through the bathroom window when she

was in the shower. (RR45: 43-45). When Harris confronted appellant about the

18 incident, he threatened to “whip *her+ ass.” (RR45: 45-46). Harris called the police

and appellant fled. (RR46: 45).

On April 20, 2009, Dallas Police Officer Ryan Foster and his partner

responded to a disturbance call in South Dallas. (RR45: 132-33, 140). Sekinah

Muhammad, appellant’s sister, was upset and was bleeding from the back of her

head. (RR45: 133-35). Appellant and Sekinah had gotten into an argument. (RR47:

28-29). When appellant refused to leave, Sekinah came toward appellant with a

hammer. (RR47: 28-29, 32-33). Appellant took the hammer from her and hit her

in the head with it two times. (RR45: 138-39; RR47: 28-29, 32-35). Appellant was

apprehended a few blocks away from the offense and arrested for assault. (RR45:

138-40).

Appellant pleaded guilty to the aggravated assault of his sister and was

placed on probation on September 15, 2009. (RR46: 141-43, 147; RR47: 37; RR49:

99-100; State’s Exhibit 185). Appellant violated the conditions of his probation on

many occasions. He was ordered to wear an electronic monitoring device on

September 25, 2009, but was arrested four days later for failing to comply with

the electronic monitoring requirements. (RR46: 143-44). Over the next nine

months, appellant failed to comply with several other conditions of his probation

19 by testing positive during multiple urinalysis tests, failing to regularly report to his

probation officer, failing to complete any community service hours, failing to

complete anger management, failing to attend Narcotics Anonymous meetings,

and failing to pay the required fees and court costs. (RR46: 144, 148-49, 150-51).

Despite these numerous violations, in June of 2010, appellant was continued on

probation and sent to an intermediate sanctions facility (“ISF”) to complete a

cognitive track program. (RR46: 152, 163). Appellant completed the program and

was released in January of 2011; however, one month later he was arrested for a

family violence assault against Kametra and absconded from probation for the

next five months. (RR46: 152-53). He had a warrant out for his arrest for violating

his probation at the time he was arrested the instant offense on August 22, 2011.

(RR46: 154).

Appellant did not voluntarily turn himself in after drowning his two sons.

He evaded police for most of the day, but was eventually captured. After the

boys’ bodies were found in the back of Naimah’s car, several police officers set up

a perimeter of the area and continued to search for appellant with the assistance

of the helicopter unit. (RR46: 104, 107-11). Eventually appellant was spotted on

foot, and five to six officers pursued him in a foot-chase. (RR46: 111-12). They

20 finally captured him in the bottom of an empty creek bed and appellant resisted

arrest by fighting, pushing and kicking the officers. (RR46: 112-13). The officers

had to use a Taser at least three times in order to gain control and place him in

handcuffs. (RR46: 113-14).

While confined in Dallas County Jail and awaiting trial for capital murder,

appellant had several disciplinary violations. On October 25, 2011, when appellant

was instructed that he would be changing cells, he refused and had to be forcibly

moved to another cell by two guards. (RR47: 101-03). Appellant was given five

days of restrictions as a result, which meant that he was moved into a single cell

and not allowed to go to the commissary, have visitation, or make personal phone

calls other than to his attorney for five days. (RR47: 105). On April 25, 2012,

appellant was unhappy about the tray of food he was served and refused to

return the plastic tray until the guard served him another tray. (RR47: 104). When

the guards went into appellant’s cell to cease the food tray, appellant swung at

one of them and the guards had to use force to detain him. (RR47: 104-05). As a

result of this infraction, appellant was given twenty-five days of restrictions.

(RR47: 105). On March 26, 2013, appellant was written up for fighting another

inmate and received fifteen days of restrictions. (RR47: 111-12). On November 24,

21 2012, in a jail phone call to his brother Jamal, appellant told his brother that the

only reason he had not “fired off on some of these fools” was because he wanted

to keep up with his sports and visits. (RR47: 136–38; State’s Exhibit 184).

In addition to appellant’s lengthy history of criminal behavior and

disrespect toward any person of authority, the State also presented evidence of

appellant’s violence toward Kametra throughout their relationship. Kametra met

appellant in the summer of 2005 when she was fifteen years old and they began

dating. (RR46: 169-70). They had been dating for two to three weeks when

appellant became violent with her. (RR46: 176). The first incident of violence

happened in the backyard of appellant’s house following a verbal argument.

(RR46: 177). Kametra told appellant she was leaving and he grabbed her, threw

her in the back seat of his car, hit her with his fists multiple times, and told her

she was not leaving. (RR46: 177-78).

Appellant’s violence toward Kametra occurred once or twice a week in the

beginning of their relationship, but escalated over the last few years they were

together. (RR46: 179-80, 202). If Kametra burnt the rice, stayed outside too long

with her sister, spoke disrespectfully to appellant, or questioned appellant about

the way he was spending her money, appellant responded with physical abuse.

22 (RR46: 202-03, 210-13). When Kametra found out she was pregnant with their

first child, Naim, appellant became upset and asked her to have an abortion.

(RR46: 186-87, 188-89). He also encouraged her to drink bleach or attempt to

abort the baby using a wire hanger. (RR46: 188). When Kametra refused to abort

the baby, he punched and kicked her in the stomach in an effort to make her have

a miscarriage. (RR46: 187-88, 191). Appellant repeated this abusive behavior

when Kametra became pregnant with Elijah. (RR46: 195-96). Kametra’s sister,

Gabrielle Armstead (“Gabby”), witnessed the abuse and repeatedly encouraged

Kametra to leave appellant. (RR46: 210-13).

In December of 2010, Kametra had grown tired of appellant being in and

out of jail, failing to work, and being physically abusive towards her, so she

decided to leave him. (RR46: 218-20). She and the boys left with her sister Gabby

and stayed in a motel. (RR46: 221-22). For the next few months, they bounced

around between the motel, shelters, and Priscilla’s house. (RR46: 221-23, 225).

Kametra resorted to prostitution in order to make money for food, diapers, the

motel, and her newly developed drug addiction. (RR46: 222, 224). After a few

months, Kametra checked into Nexus, a drug abuse treatment facility, and

received the help she needed. (RR46: 222, 224-25, 249-51). Despite the hard

23 times she encountered over the months after leaving appellant, she knew that

leaving him was the right decision and never got back together with him. (RR46:

222).

After the breakup, appellant continued to use violence to make Kametra

comply with his demands. In February of 2011, when Kametra and the boys were

were staying with her mother, appellant came over and wanted to take Naim and

Elijah with him. (RR46: 228-30). When Kametra told him no, appellant punched

Kametra in the face, grabbed Naim from inside the house, and kicked in the side

door of the house to escape. (RR46: 230-35). Kametra called the police, who

located appellant a short time later and brought Naim home. (RR46: 233-36).

In March of 2011, Kametra borrowed Gabby’s car to pick up the boys from

appellant’s house. (RR46: 236-37). Appellant insisted that Kametra take him to

the store and got in the car with them. (RR46: 239). When Kametra refused,

appellant choked her until she passed out. (RR46: 240). She awoke inside

appellant’s house and when she attempted to leave, appellant hit her in the head

with a heavy object. (RR46: 241). Kametra finally convinced appellant to let her

return Gabby’s car. (RR46: 242-43). When they exited the car, Gabby saw that

Kametra was bleeding and called the police. (RR46: 243). Appellant was carrying

24 Elijah and threatened to kill him if Kametra did not go with him. (RR46: 245-46).

The police were driving around searching for appellant and when they spotted

him, appellant took off running. (RR46: 247). Initially he was still holding Elijah,

but he threw him down and kept running. (RR46: 247-48). Following this incident,

CPS instructed Kametra that appellant was not allowed to have unsupervised

visitation with the boys. (RR46: 250).

In light of this history, Kametra was afraid of appellant and believed his

threats to kill her, Naim, and Elijah on the day of the offense. (RR46: 252).

Kametra believed that if she had done anything differently that day, the outcome

would be worse and they would all be dead right now. (RR46: 252). She also

believes that Jeremiah would be dead if Brandon had not been at her mother’s

house that morning. (RR46: 252).

Since the day of the offense, appellant has continued to blame others for

his actions. At the end of his police interview, appellant asked Detective Yeric to

tell Kametra that she was the reason he did it. (RR47: 118). While in jail, appellant

wrote a letter to Kametra’s mother stating, “I wished that I could have just talked

to [Kametra] about this, but she should have never jumped out of the car and did

what she did...this may sound crazy, but tell her I love her still and wish she would

25 have just listened to me that day because I didn’t want this to happen.” (RR46:

256; State’s Exhibit 42).

C. Appellant’s Punishment Evidence

At punishment, appellant presented evidence of the neglect, violence, and

sexual abuse he suffered during his childhood. Appellant had five siblings:

Abdullah, Jamal, Aqueelah, Sekinah, and Rashad. (RR47: 140, 169-70, 183-84).

Their mother, Naimah, was married to Roger Mopping when the children were

young, until about the time that Jamal was in fifth grade. (RR47: 141, 170-71).

Roger was the biological father of Jamal and Aqueelah. (RR47: 141, 183, 233,

248). Abdullah and appellant were told that their biological father was a man

named Lynn, but no one knew for sure. (RR47: 149-50, 154, 183-84, 233, 248-49).

None of them knew who the biological father of Sekinah or Rashad was. (RR47:

149, 162-63, 184, 248-49). Naimah was a drug-addicted prostitute who was rarely

home. (RR47: 148, 150, 184-86, 231, 235-36; RR48: 31, 38-39, 47). Roger also

became addicted to drugs. (RR47: 149-50, 186, 234-35, 238). Roger loved Naimah

but eventually left her because she kept getting pregnant by other men. (RR47:

249).

26 After Roger left, Naimah and the children moved in with Naimah’s mother

Dorothy May Butler (“Madea”), who was confined to a wheelchair. (RR47: 152-53,

187-88). Even though Madea was crippled and regularly needed assistance from

the children, this was the only stable portion of their childhood that they could

recall. (RR47: 152-53, 187-88). After Madea passed away, Naimah was married to

Joe Johnson for a short time. (RR47: 142, 159). While Joe did work and put a roof

over their head, he was an alcoholic and appeared to care more about his hogs

than the children. (RR47: 159-61, 198-99, 245; RR48: 47). When Joe left Naimah,

the children lived with a variety of different people. (RR47: 161, 164, 193, 206-08;

RR48: 29, 45). The girls were taken in by family members and somewhat

protected; however, the boys, who were all already involved in the juvenile

system, were forced to fend for themselves. (RR47: 164, 177, 207; RR48: 29-30,

45-46, 52, 55). According to Jamal, they ate out of dumpsters and resorted to

crime to make money. (RR47: 164-65).

Throughout their childhood, appellant and his siblings were regularly

exposed to drugs and violence in their home. Naimah, her brothers, and her

sister, Tina, drank alcohol and smoked cracked cocaine together at the house and

these binges frequently ended with violent fights. (RR47: 167, 194-95; RR48: 39,

27 42-43). Naimah and Tina fought the most, and Tina was sent to prison for twenty

years for stabbing Naimah in the face during one of their arguments. (RR47: 156-

57, 195-97; RR48: 42). Naimah was also violent toward the children when she

believed they were taking her drugs away. (RR47: 166, 189-92).

The children were also victims of sexual abuse. Abdullah, the eldest

brother, sexually assaulted Aqueelah, Sekinah and appellant. (RR47: 202-03;

RR48: 40-41). Aqueelah and Sekinah recalled that he would frequently come into

their room at night and rub his penis on them, fondle them, and ejaculate on

them. (RR47: 202-03; RR48: 40-41). According to appellant, Abdullah played with

his penis and made appellant play with his. (Defendant’s Exhibit 11). Appellant

also reported that he was sexually abused around age four or five by an older

woman who asked him to have sex with her. (Defendant’s Exhibit 11).

Both Aqueelah and Sekinah graduated from high school due to the

guidance they received from the friends and relatives who helped take care of

them in Naimah’s absence. (RR48: 31-32, 37). However, no one encouraged the

boys to attend school or stay out of trouble. (RR47: 204; RR48: 31-32, 46). To the

contrary, the eldest brother, Abdullah, taught Jamal to steal and commit crimes,

and that way of life was then passed on to appellant and Rashad. (RR47: 153-55,

28 205; RR48: 32). Like appellant, Abdullah, Jamal and Rashad were involved in a

number of juvenile and adult crimes and spent time in prison. (RR47: 157-58, 163,

205-06; RR48: 29). Abdullah was shot in the chest when he was eighteen years old

and survived; however, he died from complications related to that gunshot

wound in January of 2011. (RR47: 158).

With regard to appellant’s medical history, the defense presented evidence

that appellant was struck by an automobile around age three and had to go to the

hospital. (RR48: 177-78; Defendant’s Exhibit 11). In 2009, appellant started having

brain seizures and has been receiving treatment for epilepsy since that time.

(RR48: 178-79; Defendant’s Exhibit 11).

Dr. Gilbert Martinez, a clinical neuropsychologist, was hired by the defense

to test appellant’s cognitive and intellectual functioning. (RR48: 100-02). In order

to form the opinions offered by his testimony, Dr. Martinez examined appellant’s

medical records and a previous psychological evaluation conducted in 1994 when

appellant was in the juvenile system. He also conducted a clinical interview of

appellant and administered a battery of psychological tests on appellant. (RR48:

102-04, 106-07, 111-12, 141; Defendant’s Exhibit 11). With regard to his

intellectual functioning, appellant received a full-scale IQ score of 76. (RR48: 114-

29 16, 124-25; Defendant’s Exhibit 11). According to Dr. Martinez, appellant is not

mentally retarded, but his IQ score falls in the borderline range of intellectual

functioning. (RR48: 114-16, 124-25, 133; Defendant’s Exhibit 11).

With regard to appellant’s cognitive functioning, Dr. Martinez diagnosed

appellant with mild neurocognitive disorder. (RR48: 122-24; Defendant’s Exhibit

11). Appellant does not have severe cognitive or memory deficits, but he does

have deficits in executive functioning. (RR48: 118-19, 122-24, 133). Dr. Martinez

explained that a person with deficits in executive functioning has poor judgment

and reasoning and may have difficulty making decisions, controlling their thinking

and behavior, and learning from their mistakes. (RR48: 111, 123-24, 126-27, 134-

35, 164-65). Dr. Martinez believes that appellant’s deficits in executive

functioning may be due to the combined effect of his epilepsy, the head injury he

sustained as a child, and the lack of emotional support he received as a child.

(RR48: 127-29, 133; Defendant’s Exhibit 11). Appellant’s chronic drug use could be

a contributor to his deficits in executive functioning, or appellant’s choice to use

drugs could be the result of those deficits and his poor judgment. (RR48: 131,

133).

30 Dr. Kellie Gray-Smith testified as an expert on special education and the

multicultural aspects of psychology. (RR49: 11-14). Dr. Gray-Smith, a licensed

psychologist and licensed specialist in school psychology, is currently employed as

the special education coordinator for Plano Independent School District. (RR49:

11-12). In her field of study, it is well-documented that different cultures treat the

intervention and treatment of medical, mental health, and educational needs

differently. (RR49: 15, 59). With regards to special education, there has

historically been distrust within the African-American community of special

education services and a negative stigma attached to a child who accepts those

services. (RR49: 15-16, 59). These beliefs are often perpetuated by black leaders,

especially in the church. (RR49: 16).

Special education was developed and designed to address students’

academic, emotional-behavioral, and social needs. (RR49: 17). She explained that

academic failure can develop for a number a reasons and it is not uncommon for

an emotional disturbance to cause academic failure or vice versa. (RR49: 18-19,

59-60). Many behaviors – such as fighting, profanity, disrespect, and non-

compliance – are perceived to be choice-based behaviors when sometimes they

are actually caused by an underlying emotional, behavioral, or academic

31 disability. (RR49: 19-20). Literature shows that students whose needs are not

recognized and addressed by an early age are at risk for chronic school failure,

removal from school, school dropout, unemployment, substance abuse, criminal

activity, and confinement in the penitentiary. (RR49: 21-24). If there is no

intervention or treatment, the student can develop oppositional defiant disorder,

conduct disorder and, eventually, anti-social personality disorder. (RR49: 42-43,

45). According to Dr. Gray-Smith, it is common for people with this behavior

pattern to end up in jail. (RR49: 43-44, 73). This is what is known within the

psychological community as the “school-to-prison pipeline,” and it is most

prevalent with African-American males. (RR49: 44).

Dr. Gray-Smith reviewed appellant’s school records, the psychological

evaluation done in 1994 when appellant was a juvenile, and the report of Dr.

Gilbert Martinez. (RR49: 26-27, 41). Dr. Gray-Smith testified that appellant’s

school records demonstrate that appellant experienced chronic school failure

starting in elementary school that went unaddressed. (RR49: 29-30, 33). In her

opinion, this pattern of school failure was consistent with oppositional defiant

disorder. (RR49: 56-57). She believed appellant’s behavioral problems continued

and escalated due to the school district’s failure to provide effective intervention

32 and assistance to appellant. (RR49: 30-31, 33, 35, 61). In her opinion, appellant’s

school and psychological records suggest that he has anti-social personality

disorder. (RR49: 58, 66-67, 72).

D. The State’s Rebuttal Evidence

Melodye Nelson, a 24-year veteran of the Texas Department of Criminal

Justice-Institutional Division (“TDCJ”), testified as an expert on the prison system

in Texas. (RR49: 101-47). Warden Nelson previously worked as a correctional

officer on death row and is now the senior warden over the Mountain View and

Hilltop female prison facilities. (RR49: 101-02). Warden Nelson testified generally

about how inmates are classified and housed and the opportunity for violence

within the prison system. (RR49: 102-47).

She explained that general population inmates are classified as a “G1”

through “G5,” with G1’s and G2’s being the inmates with the least amount of

supervision. (RR49: 105, 123). There is also administrative segregation and death

row, which are much more restrictive. (RR49: 105, 123, 135). An inmate’s initial

classification is not based on the crime committed, but rather on the sentence

received, his behavior during any previous incarceration, and whether he is a

member of a documented gang. (RR49: 105, 123-24, 126-28, 140). An inmate

33 serving a sentence of 50 years or more who has served less than ten years is

automatically going to be classified as a G3. (RR49: 109, 124). That person can

move up or down within the classification system depending on their behavior.

(RR49: 110-11, 127-31, 135-36, 146-47). This means a person convicted of capital

murder and sentenced to life without parole and who is not a documented

member of a gang would be classified as a G3; the only distinction, however, is

that person would never move down below a G3 classification. (RR49: 107, 109-

10, 111-12, 125-26).

Inmates classified as G1’s, G2’s and G3’s live in dormitories or cell blocks

and can walk around unescorted throughout their prison facility. (RR49: 105-06,

107, 14-41). A capital murderer sentenced to life without parole who is classified

as a G3 can shower, work, eat, go to school, go to the library and recreate like any

other G3 in the general population. (RR49: 107, 109). In contrast, inmates on

death row are housed in single cells and confined approximately 23 hours per

day. (RR49: 114). They are allowed visitation and limited recreation, but they are

strip-searched prior to leaving their cell and are always escorted in restraints with

two correctional officers. (RR49: 114).

34 According to Warden Nelson, the Texas prison system is a well-run

organization. (RR49: 121, 143). Nonetheless, there is an opportunity for violence

throughout the prisons, regardless of classification level. (RR49: 112, 118, 131,

144). Even on death row, the most secure unit in Texas, violence occurs. (RR49:

112-13). Whether an inmate will commit acts of violence depends on the

individual inmate and his demeanor. (RR49: 133-34, 136, 142). Inmates get

creative in making weapons and use whatever they have access to, including

typewriter rods, nails, screws, rocks, and sharpened chicken or pork bones. (RR49:

115-17).

SUMMARY OF ARGUMENT

Issues 1-20: The trial court properly denied appellant’s challenges for cause

against twenty prospective jurors. All of the denials were proper, and appellant

has not shown that he was denied the use of a statutorily provided peremptory

challenge.

Issues 21-22: Appellant’s argument that he was deprived of a lawfully

constituted jury lacks merit. Appellant has failed to prove that any of the trial

court’s rulings on any of the challenges resulted in the seating of a juror who was

biased or prejudiced.

35 Issues 23-26: The trial court did not abuse its discretion by admitting

autopsy photographs of the victims. The photographs were relevant and

necessary to assist the medical examiner with her testimony and to link the

victims to this testimony, and their probative value was not outweighed by the

danger of unfair prejudice

Issues 27 and 41: The trial court properly overruled appellant’s objections

to the State’s closing argument during both the guilt-innocence and punishment

phases of trial because the complained-of arguments fell within the permissible

areas of argument. Further, given the overwhelming evidence supporting the

jury’s guilty verdict and their answers to the special issues, any error was

harmless.

Issue 28: The trial court did not abuse its discretion by admitting testimony

regarding appellant’s statements to CPS investigator Pamela Womack. Because

Womack was not an agent of law enforcement, she was not required to comply

with Miranda.

Issue 29: The trial court did not abuse its discretion by admitting State’s

Exhibit 173, certified business records pertaining to appellant’s 1997 conviction

36 for evading arrest. The totality of the evidence sufficiently linked appellant to the

conviction.

Issues 30-32: The trial court properly overruled appellant’s objections to

the testimony of police officers Chris Havens, Harold Andrews, and Brandon

Hernandez. These officers properly used police reports to refresh their memory

and then testified from their refreshed memory.

Issues 33 and 37: The trial court did not abuse its discretion by admitting

the testimony of Officer David Solomon regarding his arrest of appellant. His

testimony was relevant to link appellant to an unadjudicated burglary offense

previously presented by the State, and it did not leave a false impression that

appellant was involved in a different offense.

Issue 34: The trial court properly admitted the expert testimony of Warden

Melodye Nelson as her testimony was relevant and helpful to the jury in deciding

the first special issue. Alternatively, any error in the admission of this testimony

was harmless.

Issue 35: The trial court satisfied its duty to conduct a threshold

determination of the admissibility of extraneous offenses. Any error in the trial

court’s failure to grant appellant’s request for a separate hearing was harmless

37 because the State clearly proved each extraneous offense presented during the

punishment phase.

Issue 36: Where the trial court granted appellant’s request and instructed

the jury to disregard inadmissible testimony, it did not abuse its discretion in

denying appellant’s motion for mistrial.

Issues 38 and 39: Appellant failed to preserve his complaints regarding the

cross-examination of his experts for appellate review. In any event, the trial court

did not err by permitting the State to cross-examine Dr. Kellie Gray-Smith and Dr.

Gilbert Martinez regarding antisocial personality disorder, an issue within their

area of expertise and clearly relevant to appellant’s death-worthiness.

Issue 40: The trial court’s statement regarding sequestration was not an

improper comment on the weight of the evidence. Regardless, appellant was not

harmed by the trial court’s comment because it was not calculated to benefit the

State or prejudice appellant’s rights.

Issue 42: The evidence was legally sufficient to support the jury’s answer to

the future dangerousness special issue. Based upon the facts of the instant

offense, as well as the evidence of appellant’s past acts of crime and violence, a

38 rational jury could find that appellant would constitute a continuing threat to

society.

Issues 43-54: Appellant’s admittedly meritless federal constitutional

challenges to the Texas death penalty statute are presented only to preserve the

complaints for federal habeas review. And while appellant invites this Court to

revisit its prior holdings against his position, he provides no new authority for this

Court or the State to address.

ARGUMENT

Issues 1-20: Denial of Defense Challenges For Cause

In issues 1 through 20, appellant claims the trial court violated statutory

and constitutional law by erroneously causing him to use all fifteen of his

statutorily allotted peremptory strikes plus two additional strikes on persons who

should have been removed for cause. Moreover, he contends that the trial court

forced him to accept an objectionable juror after denying his request for

additional strikes. (Appellant’s Brief, pp. 20-87).

The trial court properly denied all of appellant’s challenges for cause. Thus,

his contentions are without merit and should be overruled.

39 Applicable Law

A veniremember may be challenged for cause if, among other reasons, he

possesses a bias or prejudice in favor of or against the defendant or he possesses

a bias against an aspect of the law upon which the State or the defendant is

entitled to rely. See Tex. Code Crim. Proc. Ann. arts. 35.16(a)(9), (b)(3), (c)(2)

(West 2006); Threadgill v. State, 146 S.W.3d 654, 667 (Tex. Crim. App. 2004). A

“bias against the law” is the refusal to consider or apply the relevant law. Sadler v.

State, 977 S.W.2d 140, 142 (Tex. Crim. App. 1998). The test is whether the bias or

prejudice would substantially impair the prospective juror’s ability to carry out his

oath and instructions in accordance with the law. Threadgill, 146 S.W.3d at 667.

Appellant has the burden of establishing that his challenge for cause is

proper. See Feldman v. State, 71 S.W.3d 738, 747 (Tex. Crim. App. 2002). Before a

prospective juror can be excused for bias, the law must be explained to him and

he must be asked whether he can follow that law regardless of his personal views.

Threadgill, 146 S.W.3d at 667. Appellant does not meet his burden of establishing

that his challenge for cause is proper until he has shown that the veniremember

understood the requirement of the law and could not overcome his prejudice well

enough to follow it. See Feldman, 71 S.W.3d at 747.

40 When reviewing a trial court’s decision to deny a challenge for cause, the

appellate court looks at the entire record to determine if there is sufficient

evidence to support the ruling. Feldman, 71 S.W.3d at 744. The appellate court

reviews a trial court’s ruling with “considerable” or “great” deference because the

trial judge is in the best position to evaluate the prospective juror’s demeanor and

was present to observe the juror and listen to his tone of voice. Saldano v. State,

232 S.W.3d 77, 91 (Tex. Crim. App. 2007); Threadgill, 146 S.W.3d at 667.

Particular deference is given when the prospective juror’s answers are vacillating,

unclear, or contradictory. Threadgill, 146 S.W.3d at 667. The appellate court

reverses a trial court’s ruling on a challenge for cause “only if a clear abuse of

discretion is evident.” Colburn v. State, 966 S.W.2d 511, 517 (Tex. Crim. App.

1998). When the venireperson is persistently uncertain about his or her ability to

follow the law, the reviewing court does not second guess the trial court. Id.

To prevail on a claim of erroneous denial of a challenge for cause, the

defendant must object to the trial court that he is compelled to try his case with

at least one individual on the jury who he would have removed with a

peremptory challenge had one been available to him. Harm from the erroneous

denial of a defense challenge for cause occurs: (1) when a defendant uses a

41 peremptory challenge to remove a veniremember whom the trial court should

have excused for cause at the defendant’s request, (2) the defendant uses all of

his statutorily allotted peremptory challenges, and (3) the defendant

unsuccessfully requests an additional peremptory challenge which he claims he

would use to remove another veniremember whom the defendant identifies as

“objectionable” and who actually sits on the jury. Saldano, 232 S.W.3d at 91.

When this occurs, the trial court’s erroneous denial of a challenge for cause

harms the defendant by wrongfully depriving him of at least one of his statutory

peremptory challenges that he could have used to remove the juror whom he has

identified as objectionable. Id.

The parties asserted their challenges for cause and peremptory challenges

at the conclusion of each prospective juror’s individual voir dire. Appellant

exhausted all fifteen of his statutory peremptory strikes and two additional strikes

granted by the court. (RR36: 176-77; RR37: 85). The court denied appellant’s

request for a third additional strike to exercise on Ernest Hand, whom appellant

identified as objectionable. (RR39: 90-91). Since appellant received two extra

peremptory challenges, appellant must show that the trial court erroneously

denied at least three of his challenges for cause to the other veniremembers

42 identified in issues one through twenty. See, e.g., Saldano, 232 S.W.3d at 93

(noting that the defendant would have to show the trial court erroneously denied

his challenges for cause to three of the complained-of venire members because

he received two extra peremptory strikes).

The Trial Court Properly Denied Appellant’s Challenges for Cause

Issue 1: Milton Powell

Appellant exercised his first peremptory strike against Milton Powell. (RR6:

161-62). At trial, appellant objected that Powell should be excused for cause

because (1) he was “death prone,” (2) he would give a police officer witness an

“elevated level of credibility,” and (3) he would find appellant guilty regardless of

the State’s failure to prove a “technicality.” (RR6: 160-61). On appeal, appellant

contends Powell also should have been excused because he would not give

meaningful consideration to appellant’s mitigation evidence. (Appellant’s Brief,

pp. 22-23).

Appellant’s complaint about Powell’s inability to consider his mitigation

evidence is not preserved for review because it was not raised at trial. See Tex. R.

App. P. 33.1(a) (providing that a timely specific trial objection is prerequisite to

43 presenting a complaint on appellate review). Nevertheless, appellant fails to

demonstrate error in the denial of his challenge on any ground argued on appeal.

“Death Prone”

Appellant claims Powell’s answers showed that, if he found appellant guilty

of capital murder, then he would automatically answer the special issues in such a

manner to return a death verdict. (Appellant’s Brief, p. 21-22). The record reflects

the contrary. During questioning by both sides, Powell described his duty to

follow the law governing the special issues as “a tremendous responsibility.” He

insisted that he would carefully consider the evidence as it related to those issues

and that he would not return a death sentence simply because he found appellant

guilty. When asked by defense counsel if his ability to follow the law would be

impaired if the offense involved the death of a child, Powell stated only that it

would influence his answers to the special issues and make his task more difficult.

(RR6: 120, 122, 124, 137, 140-41, 147-48, 155-56). The court properly concluded

that Powell was not death prone.

Police Officer Credibility

Appellant contends Powell’s answers showed he “would give any police

officer automatic credibility before hearing the witness” and that he “would judge

44 a law enforcement officer using a different criteria [sic] to determine credibility

than other witnesses.” (Appellant’s Brief, p. 22). In his questionnaire, Powell

stated that he believed police officers were more likely to tell the truth than the

average person. (RR6: 123). During questioning at trial, the prosecutor explained

to Powell that the law required him to treat all witnesses as equals at the outset,

and that he must wait until he heard their testimony before assessing their

credibility. Powell responded that he understood this law and would follow it.

(RR6: 123).

During questioning by defense counsel, Powell again admitted his tendency

to believe officers and to give them an “elevated level of credibility.” (RR6: 133).

Defense counsel did not question Powell about whether this tendency would

affect his ability to follow the law, however. Thus, this statement did not impeach

or contradict Powell’s earlier assurances during the prosecutor’s questioning on

the matter. Even if it did, the statement merely presented the trial court with a

fact question which it was free to resolve against appellant. Threadgill, 146

S.W.3d at 667 (holding particular deference is given to trial court’s ruling on a

challenge for cause when the prospective juror’s answers are vacillating, unclear,

or contradictory).

45 State’s Burden of Proof

Appellant contends Powell’s testimony showed that “he would have a hard

time finding someone not guilty if the State failed to prove all of the elements of

the indictment.” (Appellant’s Brief, p. 23). In support of this contention, appellant

cites Powell’s testimony during defense questioning that he would “probably still

convict” if the indictment alleged Dallas County but the State proved the crime

occurred in Tarrant County. (RR6: 130-31). Powell made similar statements on

two other occasions during defense questioning. (RR6: 137, 140). None of these

statements required Powell’s excusal for cause.

At trial, defense counsel challenged Powell for refusing to require the State

“to prove beyond a reasonable doubt all the allegations in the indictment . . .”

(RR6: 161). The State is not required to prove venue beyond a reasonable doubt.

Proof by a preponderance of the evidence satisfies the State’s burden. Tex. Code

Crim. Proc. Ann. art. 13.17 (West 2005). Admittedly, the State also misstated the

law governing its burden of proof on venue. (RR6: 107-08). Nevertheless, Powell

cannot be deemed biased for refusing to hold the State to a higher standard of

proof than the law requires. Tex. Code Crim. Proc. Ann. art. 35.16(c)(2).

46 Even if appellant was entitled to a juror who would require a greater

degree of proof, the court did not abuse its discretion in overruling the challenge

to Powell. When initially questioned by the prosecutor on the matter, Powell

stated that he would hold the State to its burden of proving every element,

including venue, beyond a reasonable doubt. (RR6: 107-08). Furthermore,

Powell’s statements during defense questioning that he “probably would still

convict” and that he “might overlook” or “tend to overlook that technicality”

were not emphatic refusals to hold the State to its burden. Thus, resolution of this

conflict in Powell’s testimony against appellant was reasonable and within the

court’s discretion. Threadgill, 146 S.W.3d at 667.

Mitigation Bias

Lastly, appellant contends Powell should have been excused because he

“could not give meaningful consideration to any mitigation that the defense

would rely on in punishment.” (Appellant’s Brief, p. 22). In support of this

contention, appellant refers to Powell’s questionnaire, in which he disagreed that

genetics, circumstances of birth, upbringing, and environment should be

considered when determining punishment. He also cites to Powell’s testimony

that he felt incarceration was an insufficient punishment for some crimes. Id.

47 No juror is required to consider any particular fact as mitigating. Standefer

v. State, 59 S.W.3d 177, 181 (Tex. Crim. App. 2001). Moreover, Powell made

repeated and unwavering statements about his ability to follow the law and

consider all of the evidence in answering the special issues. (RR6: 120, 122, 124).

This is all the law required of him. Thus, if the court had been presented with this

particular challenge, it would have been proper to deny it.

Powell was qualified to sit on the jury, and this Court should overrule Issue

1.

Issue 2: Georgia Nichols

Appellant exercised his second peremptory strike against venireperson

Georgia Nichols. (RR10: 121). At trial, appellant objected that Nichols should have

been excused for cause because (1) she would not hold the State to its burden of

proving guilt beyond a reasonable doubt and (2) she could not consider the

minimum punishment for the lesser-included offense of murder. (RR10: 118-19).

On appeal, appellant does not complain that Nichols should have been excused

for her position on the punishment range for murder. Thus, that ground is not

presented for review.

48 Appellant does present and argue the other ground raised at trial –

Nichols’s inability to hold the State to its burden of proof at guilt. Moreover, he

raises two new allegations: (1) that Nichols would automatically have assessed a

death sentence if she found him guilty of capital murder, and (2) that she was

“biased against any mitigation.”2 (Appellant’s Brief, p. 29-30). Because these two

new grounds were not raised at trial, they are not preserved for review on appeal.

Tex. R. App. P. 33.1(a). Nevertheless, appellant fails to demonstrate that Nichols

should have been excused for cause on any of the three grounds argued on

appeal.

State’s Burden of Proof

Appellant contends Nichols should have been excused because her prior

jury service biased her against the law that required her to acquit if the State

failed to prove guilt beyond a reasonable doubt. Appellant cites to Nichols’s

questionnaire in which she commented on the following statement: “Regardless

2 In his brief, appellant also makes passing references to Nichols’s questionnaire answers related to police officer credibility and her opinion about the rehabilitation of capital murderers. There is no accompanying argument nor were these answers raised at trial as a basis for challenging Nichols. (Appellant’s Brief, p. 30; RR10: 118-19). If these references were intended to present additional grounds for excusing Nichols, they are inadequately briefed and will not be addressed by the State. 49 of what a judge says the law is, jurors should do what they believe is the right

thing.” Nichols agreed with the statement, saying, “I was on a criminal jury once;

everything pointed to crime, but we let the criminal go free, because of ‘evidence,

beyond a doubt’, which does not exist & is impossible if not witnessed; we let a

bad man on the loose to hurt other children – I will never let this happen again.”

(Nichols Questionnaire, p. 7).

Both sides questioned Nichols about this statement and her prior

experience as a juror. On both occasions, Nichols explained that she believed the

defendant in the prior trial was guilty and that she was the lone “hold-out” juror.

The other eleven jurors told her that she could not vote guilty unless she believed

he was guilty “beyond a shadow of a doubt” or unless she was 100% certain of his

guilt. She believed that the only way she could be that certain of guilt was if she

witnessed the crime herself. (RR10: 41-42, 98-99).

The prosecutor explained that the burden of proof was beyond a

reasonable doubt – not a shadow of a doubt – and that whatever convinced

Nichols beyond a reasonable doubt was sufficient to convict. Nichols quizzed the

prosecutor repeatedly to ensure that she understood the burden of proof if

selected for appellant’s jury. (RR10: 43-44, 73-74, 77-78). And when questioned

50 by defense counsel, she confirmed her accurate understanding of that burden.

(RR10: 98-99, 100-01, 103). Furthermore, the prosecutor explained to Nichols that

if the State failed to meet its burden on any element of the offense, she was

required to acquit. Nichols understood and agreed with this law and repeatedly

stated that she would hold the State to its burden, even if it meant an acquittal.

(RR10: 49-53).

Nichols never demonstrated an unwillingness to hold the State to proof

beyond a reasonable doubt. The statement in her questionnaire evinced only a

misunderstanding of the law, not a bias against it, and her testimony resolved

that misunderstanding. Thus, the court properly denied the challenge against her.

Death Prone

Appellant contends various answers in Nichols’s questionnaire show that

she would automatically assess a death sentence if she found someone guilty of

capital murder. While apparently acknowledging that Nichols’s testimony shows

she would follow the law governing the assessment of punishment, appellant

contends she was indoctrinated by the prosecutor and that her answers did not

reflect her true opinions. (Appellant’s Brief, pp. 29, 31). The record reflects

otherwise.

51 Although Nichols strongly favored the death penalty, she stated that she

could set aside her strong feelings and give full consideration to the evidence.

(RR10: 71). She also agreed that a sentence of life without parole was an extreme

punishment and that she could be satisfied with such a sentence. (RR10: 53, 97,

106). Furthermore, she stated on numerous occasions that she would wait and

consider the evidence at punishment when assessing the sentence, even if she

found the defendant guilty. Her answers were not merely one-word assents to

propositions by the prosecutor. By all appearances, Nichols was a thoughtful,

intelligent woman with a strong desire to follow the law. Her answers indicated

an understanding and agreement with that law. (RR10: 45, 49, 54-55, 61-63, 65,

71, 77, 77-78). Indeed, she answered the same way when posed similar questions

at length by defense counsel. (RR10: 93-94, 100, 102, 107-08, 111, 113). Not once

did Nichols waver or give a conflicting answer on the matter. If appellant had

challenged Nichols on this basis at trial, the denial of that challenge would have

been proper.

Appellant contends Nichols was biased against any mitigation because in

her questionnaire she opined that genetics, circumstances, upbringing,

52 environment, and intoxication did not excuse criminal behavior. (Nichols

Questionnaire, pp. 6, 10). Nichols had no duty to consider any particular fact as

mitigating. Standefer, 59 S.W.3d at 181. She was only obligated to consider all the

evidence presented at trial in determining her answers to the special issues. She

unequivocally stated that she would do this, and she specifically stated that she

would consider any mitigating evidence presented. (RR10: 45, 49, 54-55, 71, 107-

08, 113). Thus, if the court had been presented with this particular challenge, it

would have been proper to deny it.

Nichols was qualified to sit on the jury, and this Court should overrule Issue

2.

Issue 3: Dee Jay Earley

Appellant exercised his third peremptory strike against Dee Jay Earley.

(RR12: 244). At trial, appellant challenged Earley for lying on his questionnaire and

refusing to consider evidence of intoxication in mitigation of punishment. (RR12:

238-43). On appeal, appellant contends the court should have granted his

challenge on both of these grounds. He also contends the court should have

excused Earley for cause because he was “death prone.” (Appellant’s Brief, pp.

32-35).

53 Because it was not raised at trial, the contention that Earley was death

prone is not preserved for appellate review. Tex. R. App. P. 33.1(a). Nevertheless,

appellant fails to demonstrate that Earley should have been excused for cause on

any of the three grounds argued on appeal.

Dishonesty in Questionnaire

Appellant contends Earley was dishonest because he did not reveal his

volunteer work as a victim’s advocate in his questionnaire. Appellant

characterizes the omission as an intentional deception. (Appellant’s Brief, pp. 34-

35). The record refutes this characterization.

Earley first mentioned his advocacy work during questioning by the

prosecutor. The information was not directly solicited. Earley volunteered it.

(RR12: 171-72). He testified that he served as a victim’s advocate during his

military service. It was not part of his regular duties; it was volunteer work that he

agreed to do at the request of his commanding officer. He volunteered for two

and a half years. He would assist victims of domestic assault, child abuse, etc. with

finding food and shelter for the night and obtaining restraining orders. The

offenses were typically minor; none involved a murder. (RR12: 171-72, 197-201).

54 Appellant claims that Earley should have provided the information in

response to Question 58 in his questionnaire. The question asked Earley to list

“any local, state or national citizens’ law enforcement group such as a crime

commission, group that supports the death penalty, group dedicated to victims’

rights, traffic commission, neighborhood crime watch, Mothers Against Drunk

Driving or police or sheriff’s auxiliary.” (Earley Questionnaire, p. 9). When the

court asked Earley why he did not list his military advocacy work in response to

this question, he explained that he did not belong to any organization. He and the

other volunteers did not meet as a group. He would simply get a phone call and

respond. Moreover, Earley explicitly denied any intent to deceive. (RR12: 239-43).

The court believed Earley and that credibility determination is entitled to

deference. (RR12: 243). It is amply supported by Earley’s explanation, by his

express denial of any intent to deceive, and by the fact it was he who first

volunteered the information. Thus, the court’s denial of this challenge was

proper.

Consideration of Intoxication Evidence

Appellant contends Earley was biased against any mitigation evidence

because he did not believe evidence of intoxication should be considered in

55 mitigation of punishment. (Appellant’s Brief, p. 34). Earley had no duty to

consider any particular evidence mitigating. Standefer, 59 S.W.3d at 181. He was

only obligated to consider all the evidence presented at trial in determining his

answers to the special issues. Although he did not regard intoxication evidence as

mitigating, he stated that he would consider it in answering the special issues.

(RR12: 157-58, 225-30). Thus, Earley evinced no bias against the law and the court

properly denied this challenge.

Appellant contends that Earley’s responses to some of the questions in his

questionnaire show that he would automatically assess a death sentence if he

found the defendant guilty of murder or crimes against the elderly or children.

(Appellant’s Brief, p. 33). Earley’s testimony dispelled any notion that he was

“death prone.”

Although Earley favored the death penalty for certain types of crimes, he

had no problem with assessing a sentence of life without parole. (RR12: 204). He

also repeatedly and unequivocally stated that he would hold the State to its

burden of proof on the first special issue, he would wait, listen to, and consider

the punishment evidence before answering the special issues, and he would not

56 automatically assess a death sentence just because he found appellant guilty.

(RR12: 151-54, 159-66, 183, 188-89, 202-06, 215, 218-19, 224). The law required

nothing more of Earley. Thus, any challenge that he was biased against the law

would have been properly denied.

Earley was qualified to sit on the jury, and this Court should overrule Issue

3.

Issue 4: Timothy Tinsley

Appellant exercised his fourth peremptory strike against Timothy Tinsley.

(RR14: 116). At trial, appellant challenged Tinsley because: (1) he was unable to

give “fair and accurate consideration to sufficient mitigating evidence”; (2) he was

unable “to start police officers on the same level of credibility as other

witnesses”; and (3) he was “death prone.” (RR 14: 110-11). On appeal, appellant

argues that the trial court abused its discretion in denying his challenge on all

three grounds. (Appellant’s Brief, p. 36-37). The record justifies the court’s ruling.

Appellant contends Tinsley could not give full consideration to his

mitigation evidence because of the “history of alcoholism in his family with his

57 brother as well as his stepdad.” (RR14: 110, 112). Tinsley’s testimony

demonstrates otherwise.

Tinsley testified that his stepfather was an alcoholic who repeatedly went

to prison. Tinsley lived with his stepfather for a year and a half and moved out

when he turned 18. (RR14: 28-30, 78-80). Also, Tinsley acknowledged in his

questionnaire and at trial that his brother is a recovering alcoholic. (RR14: 82;

Tinsley Questionnaire, p. 10). Based on his experiences with his stepfather, as well

as the lessons of his biological father who was a drill sergeant, Tinsley believed

people should be held accountable for their actions. (RR14: 28-30). Furthermore,

he expressly stated that he would not characterize evidence of voluntary

intoxication as mitigating. (RR14: 80-81). Tinsley he had no duty to treat such

evidence as mitigating, however. Standefer, 59 S.W.3d at 181. He was only

obligated to consider any evidence of intoxication presented at trial by either side

in determining his answers to the special issues. Tinsley’s testimony reflects that

he could fulfill that duty.

Tinsley never stated that he would not consider evidence of intoxication or

drug use at punishment. He repeatedly assured both sides that he would have to

hear the evidence before making any decisions on sentencing and that he would

58 wait and listen to the evidence in determining his answers to both special issues.

(RR14: 38, 46-47, 49-50, 57, 104). He explained what types of intoxication

evidence he would regard as mitigating, e.g., involuntary intoxication evidence.

(RR14: 80-81). Then, referencing his feelings about drug and alcohol abuse,

Tinsley avowed that his personal beliefs and the law “were two different things.”

(RR14: 85-86).

If there were any doubt as to Tinsley ability to consider voluntary

intoxication evidence at punishment, it was dispelled during the court’s

questioning of Tinsley on the matter. When asked if he could keep an open mind

as to any evidence either side might present on the punishment issues, Tinsley

said, “I think I can.” But when asked for a more definitive answer from the court,

Tinsley said, “I can.” (RR14: 113-15). Any vacillation in Tinsley’s answer was for

the trial court to resolve and that determination is entitled to deference.

Threadgill, 146 S.W.3d at 667.

Appellant contends Tinsley could not treat police officers the same as other

witnesses, starting them out on an equal basis. Tinsley’s testimony shows the

opposite.

59 Tinsley stated that he would give a police officer “a little more respect”

than the “average Joe.” ((RR14: 105). But he was referring to how he would treat

them outside of the courtroom. (RR14: 106). In court, Tinsley would treat all

witnesses the same and wait until he heard the testimony to judge it, even if,

generally, he thought police were more credible. (RR14: 55-57). In Tinsley’s

opinion, “Everybody’s human, you know, so I would just – I would listen to the

story and how it’s presented to determine, yeah.” (RR14: 105). Tinsley held no

bias against the law governing police officer testimony, and the court properly

overruled this challenge.

Appellant contends that if he found appellant guilty of capital murder,

Tinsley would automatically answer the special issues in a manner that resulted in

a death sentence. (Appellant’s Brief, p. 36). Nothing in Tinsley’s testimony

supports this contention.

Throughout his testimony, Tinsley repeatedly stated that he would not

automatically vote for death if he found appellant guilty and that he would wait

and consider the evidence presented at punishment in answering the special

issues. (RR14: 38, 46-51, 57, 75, 86, 89, 104). By all appearances, Tinsley would

60 fulfill his duty of waiting and considering all the evidence before he determined

his answers to the special issues. The court properly concluded that he was not

challengeable as “death prone.”

Tinsley was qualified to sit on the jury, and this Court should overrule Issue

4.

Issue 5: Robin Linn

Appellant exercised his fifth peremptory challenge against venireperson Robin

Linn. (RR14: 232). At trial, appellant objected that she was “death prone” and her

testimonial responses were disingenuous and motivated by a strong desire to get

on the jury. (RR14: 228-32).

Linn’s questionnaire and testimony demonstrated that she strongly favored

the death penalty and that she wanted to serve on the jury. (RR14: 127-28, 131-

32; Linn Questionnaire). Neither of these facts rendered Linn challengeable for

cause, however. And the remainder of Linn’s testimony demonstrates an

unequivocal understanding of and willingness to follow the law.

While she favored the death penalty, Linn stated that she did not believe it

was appropriate for all homicides and that such a decision would have to be

based on the particular facts and circumstances of each case. (RR14: 132-36). She

61 would not refuse to consider any punishment evidence, she would not answer the

first issue affirmatively simply because she found appellant guilty of capital

murder, and she believed that the special issues were a fair method for assessing

whether the death penalty was appropriate. (RR14: 161-63, 169-70, 174). She

could envision a scenario where a murderer might not be a future danger and

where mitigating circumstances might warrant a life sentence. (RR14: 200, 210).

And although she would like to know if a defendant were remorseful, she would

not require him to testify to such in assessing his sentence. She understood that a

defendant might feel remorseful but be unable to testify at trial for a variety of

reasons. (RR14: 183, 201-02).

Appellant argued that Linn’s demeanor during questioning told another

story. According to defense counsel, Linn was simply saying what she needed to

say to get on a death penalty jury. But Linn’s desire to serve on appellant’s jury

was not motivated by a bloodlust. It was motivated by her faith in the system and

her sense of civic duty. (RR14: 127-28). Her thoughtful explanations and

responses throughout questioning by both sides evinced an intelligent woman

who understood the gravity of serving in death penalty trial and who took the

responsibility seriously.

62 Defense counsel argued that Linn’s demeanor suggested otherwise. The

prosecutor disputed that characterization. (RR14: 231). The trial court apparently

disagreed as well because it overruled the challenge. (RR14: 232). The court’s

determination is entitled to deference and is amply supported by Linn’s

testimony, as detailed above.

Linn was qualified to sit on the jury, and this Court should overrule Issue 5.

Issue 6: Charles Stout

Appellant exercised his sixth peremptory strike against venireperson

Charles Stout. (RR16: 77). At trial, appellant objected that Stout would hold the

decision not to testify against appellant, that he would put the burden of proof on

appellant, that he would not presume appellant innocent, and that he did not

understand the Texas death penalty sentencing scheme. (RR16: 74-76). On

appeal, appellant focuses on one ground – holding his failure to testify against

him. (Appellant’s Brief, pp. 44-45). The court’s rejection of this challenge was

Appellant’s contention that Stout would hold his failure to testify against

him is premised on a mischaracterization of Stout’s testimony. Although he would

testify if he were a defendant, Stout repeatedly denied that he would hold

63 another’s decision not to testify against him. Stout agreed that the defendant has

no burden of proof, and he acknowledged that there could be a variety of reasons

a defendant might not testify that had nothing to do with his guilt or innocence.

(RR16: 36-38).

Stout did not equivocate or change his opinion when questioned on the

matter again by defense counsel. He reiterated the responses he gave the

prosecutor during earlier questioning. He also more specifically testified that he

would not hold the decision not to testify against appellant in determining his

guilt or innocence or in answering either of the special issues. (RR16: 47-48, 63-

65). Stout’s clear and unwavering responses show that he held no bias against

appellant’s Fifth Amendment right not to testify and would not consider it in his

deliberations.

Stout was qualified to sit on the jury, and this Court should overrule Issue 6.

Issue 7: Allen Harrington

Appellant exercised his seventh peremptory strike against venireperson

Allen Harrington. (RR23: 82). At trial, appellant objected that Harrington could not

consider evidence of intoxication, background, social issues, and expert mental

health testimony. (RR23: 81-82). On appeal, appellant argues that the trial court

64 should have granted his challenge on that basis and on the ground that

Harrington would automatically assess a death sentence if he found appellant

guilty of capital murder. (Appellant’s Brief, pp. 47-48).

Because the second ground was not raised at trial, it is not preserved for

appellate review. Tex. R. App. P. 33.1(a). Nevertheless, appellant fails to

demonstrate that Harrington should have been excused for cause on either

ground argued on appeal.

Appellant contends that Harrington’s questionnaire responses and his

testimony show that he would not consider evidence of genetics, background,

environment, intoxication, or expert mental health testimony in answering the

mitigation special issue. In actuality, Harrington’s testimony shows that he would

consider such evidence, but that he did not regard it as mitigating. (RR23: 46, 77-

78). Harrington he had no duty to treat such evidence as mitigating. Standefer, 59

S.W.3d at 181. He was only obligated to consider any evidence presented in

determining his answer to the mitigation special issue. Harrington’s testimony

reflects that he could fulfill that duty.

65 He stated that he would listen to the evidence and decide whether it was

sufficiently mitigating. He agreed that the needed to wait and listen because “you

never know what you’ll hear.” He also stated that his opinion about intoxication

and background evidence in particular would not prevent him from given it

consideration. (RR23: 77-78). Thus, the court properly denied this challenge.

Appellant contends Harrington’s questionnaire responses reflect that he

would automatically assess a death sentence if he found appellant guilty.

Harrington’s testimony reflects otherwise.

Harrington stated that although he strongly favors the death penalty, he

would not automatically assess it if he found appellant guilty. (RR23: 27, 38-39).

He agreed to wait and consider any evidence that would be offered on the special

issues. (RR23: 38-39). He understood that the State had the burden of proof on

the first issue and that he would hold the State to that burden. (RR23: 42-44). He

acknowledged that he would set the bar very high on the mitigation issue, but he

also stated that he wanted to hear evidence on the issue and that he would wait

and consider it before assessing any sentence “because you never know.” (RR23:

46-48).

66 Appellant attacks the veracity of Harrington’s testimony. He argues that

“Harrington was being more truthful when answering the questionnaire than

when being examined” and that he “obviously wished to be on the jury and had

been instructed by the State as to arrive there.” (Appellant’s Brief, p. 47). The

totality of Harrington’s testimony showed he was an intelligent man with a firm

grasp of the law and a commitment to following it. Furthermore, Harrington

explained that he was in a hurry when he filled out the questionnaire because he

had to pick someone up from the airport. (RR23: 73-75). The court could have

reasonably concluded that Harrington was rushed in his answers and took less

care than if he had not been in such a hurry. Regardless, the trial court disagreed

with appellant’s characterization of Harrington’s testimony and that

determination is entitled to deference. Threadgill, 146 S.W.3d at 667.

Harrington was qualified to sit on appellant’s jury. This Court should

overrule Issue 7.

Issue 8: Anthony Morrison

Appellant exercised his eighth peremptory strike against venireperson

Anthony Morrison. (RR24: 88). At trial, appellant objected that Morrison equated

a death sentence with a guilty verdict on capital murder or murder and would not

67 consider certain types of mitigating evidence in answering the second special

issue. (RR24: 78-79). On appeal, appellant contends the trial court abused its

discretion in denying his challenge on both of these grounds. (Appellant’s Brief, p.

49-52). The record supports the court’s ruling.

Appellant argues Morrison’s feelings about the death penalty were so

strong that he would assess it as soon as the State proved appellant guilty of

capital murder. In support, appellant cites Morrison’s questionnaire responses

and a portion of his testimony during defense counsel’s examination. (Appellant’s

Brief, p. 52).

Morrison did not dispute that he strongly favored the death penalty, but he

also stated that he was open to a sentence of life without parole. (RR24: 17-18,

29, 64-65). Then he repeatedly stated that even though he thought someone

convicted of capital murder should get the death penalty, he would not let that

feeling determine the punishment he assessed. Rather, he would apply the

evidence to the law and let it determine his answers to the special issues and,

consequently, the sentence. (RR24: 58-59, 61-62, 71, 73-74). The totality of

68 Morrison’s testimony shows that he would not assess an automatic death

sentence, and the court properly overruled this challenge.

Appellant argues that Morrison was unable to give meaningful

consideration to mitigation evidence that he intended to rely on. To the contrary,

the record reflects that Morrison would consider appellant’s evidence of

background, environment, etc. Throughout his testimony, Morrison told both

sides and the court the same thing. He felt that a person’s background and

upbringing do not excuse criminal behavior. Yet he would set aside those personal

feelings and consider such evidence in answering the second special issue. (RR24:

41-42, 73-74, 84-85). At most, Morrison’s testimony shows that he might not

regard appellant’s evidence of background, environment, etc. as mitigating. This

did not render him challengeable because Morrison had no duty to treat any

particular evidence as mitigating. Standefer, 59 S.W.3d at 181.

Morrison was qualified to sit on appellant’s jury. This Court should overrule

Issue 8.

69 Issue 9: Enriquez Martinez

Appellant exercised his ninth peremptory challenge against venireperson

Enriquez Martinez. (RR25: 205). At trial, appellant objected that Martinez would

automatically assess a death sentence and that he would not give adequate and

proper consideration to appellant’s mitigation evidence. (RR25: 202). On appeal,

appellant contends the trial court abused its discretion in denying his challenge on

both these grounds and should also have excused Martinez because he would

have required appellant to testify.

Because the third ground was not raised at trial, it is not preserved for

appellate review. Tex. R. App. P. 33.1(a). Nevertheless, appellant fails to

demonstrate that Martinez should have been excused for cause on any of the

three grounds argued on appeal.

Appellant argues that Martinez’s questionnaire responses show that he

would automatically assess a death sentence if he found appellant guilty of capital

murder. Martinez’s responses showed that he strongly favored the death penalty;

they did not show that he would automatically assess it. (Martinez

Questionnaire). Moreover, as appellant pointed out in his trial objection,

70 Martinez’s testimony demonstrates that he understood and would follow the law

in determining appellant’s punishment. He repeatedly and emphatically

differentiated between his feelings and the law and insisted that his feelings

would not prevent him from following the law. He thought the special issues

“process” was fair and preferable to jurors simply voting life or death. He would

apply the evidence to the special issues and let that determine the punishment.

(RR26: 160, 169-70, 172-76, 182, 191). He was not death prone and the court

Appellant argues that Martinez would not give adequate consideration to

his mitigation evidence because he did not think a defendant’s background,

intoxication, or mental health excused their crime. Martinez’s testimony shows

that he would listen to any evidence appellant presented on the second special

issue, including background, intoxication, etc., but he would not regard it as

mitigating. This did not disqualify him from service because Martinez had no duty

to treat any particular evidence as mitigating. Standefer, 59 S.W.3d at 181. The

court properly denied this challenge as well.

71 Failure to Testify

Finally, appellant argues that Martinez would require appellant to testify in

violation of his Fifth Amendment right against self-incrimination. Martinez denied

this. Martinez said that he would be looking for signs of remorse or regret if a

defendant did testify, but that he understood and respected the Fifth

Amendment right and that a defendant’s decision not to testify would not affect

his verdict. (RR26: 162, 182-84). Thus, any challenge that Martinez was biased

against Fifth Amendment law would have been properly denied.

Martinez was qualified to sit on appellant’s jury. This Court should overrule

Issue 9.

Issue 10: Paul Zugelder

Appellant exercised his tenth peremptory strike against venireperson Paul

Zugelder. (RR27: 226). At trial, appellant argued that Zugelder should be excused

because the court and the prosecutor left him with the impression that defense

counsel was misstating the law. On appeal, appellant reasserts this ground and

claims the court abused its discretion in denying the challenge. (Appellant’s Brief,

p. 59). Apparently, it is appellant’s contention that the alleged misimpression

72 biased Zugelder against the defendant. See Tex. Code Crim. Proc. Ann. art. 35.16

(a)(9). The record reflects no such bias.

Initially, defense counsel did make a misstatement of law. The

misstatement arose during defense counsel’s discussion of the concept of

“mercy” and its relevance to mitigation special issue. When he first explained the

law to Zugelder, defense counsel stated, “*T+he law specifically tells us, that a

juror’s concept of mercy, a juror’s concept of mercy alone based on anything they

have heard in the case is sufficient, if they believe it’s sufficient.” (RR27: 196-97).

The prosecutor objected to this misstatement. Mercy could not be based on

anything heard during trial; it had to be based on evidence. Defense counsel

agreed and clarified his prior statement, and then the court sustained the

objection. (RR27: 197).

When defense counsel continued his explanation, the prosecutor objected

again to him omitting the phrase “based on the evidence.” Defense counsel

correctly noted that he had not omitted that phrase and then finished his

explanation of the law. The prosecutor disagreed with defense counsel, but the

court remained silent. (RR27: 198-99).

73 At this point, Zugelder interrupted and informed the court that he was

confused about whether the law permitted him to disregard the mitigation

special issue and assess life out of mercy. (RR27: 199). Thus, although defense

counsel had not misstated the law, he had left a false impression with the juror.

The court dispelled Zulgelder’s confusion, explaining that he could answer the

mitigation issue affirmatively based on mercy if that decision was based on some

evidence at trial. (RR27: 199-01). Defense counsel and Zugelder continued to

discuss the issue and, eventually, defense counsel acknowledged, “Maybe I didn’t

explain that too well to you the first time . . .” (RR27: 202-04).

In short, defense counsel did misstate the law initially and he did leave a

false impression with Zugelder. Thus, if Zugelder had reacted negatively to

defense counsel’s miscommunications, that would have been counsel’s fault.

Zugelder did not react negatively, however. He remained communicative and

engaged throughout the entirety of defense counsel’s questioning. He remarked

on counsel’s candor and, in return, was himself candid. He did not express anger

or even frustration. By all appearances, he was emotionally unaffected by the

exchange and was concerned only with understanding the law and answering

74 questions honestly. (RR27: 196-207). The trial court reasonably concluded the

same and properly denied this challenge.

Zugelder was qualified to sit on appellant’s jury, and this Court should

overrule Issue 10.

Issue 11: David Hornstein

Appellant exercised his eleventh peremptory challenge against

venireperson David Hornstein. (RR28: 116). At trial, appellant objected that

Hornstein would not give consideration to appellant’s mitigation evidence at

punishment. Specifically, he would not consider appellant’s character and

background, mental health, or voluntary intoxication. (RR28: 114-15). On appeal,

appellant claims the trial court abused its discretion in denying his challenge on

this ground. (Appellant’s Brief, p. 60-61).

Hornstein’s testimony shows that he would listen to any evidence appellant

presented on the second special issue, including background, intoxication, and

mental health evidence, but that he might not regard it as mitigating. (RR28: 53-

54, 61-63, 67, 95-112). This did not disqualify him from service because Hornstein

had no duty to treat any particular evidence as mitigating. Standefer, 59 S.W.3d at

181. The court properly denied this challenge.

75 Hornstein was qualified to serve on appellant’s jury, and this Court should

overrule Issue 11.

Issue 12: Andrea Griffith

Appellant exercised his twelfth peremptory challenge against venireperson

Andrea Griffith. (RR30: 84). At trial, appellant objected that Griffith would not

consider his mitigation evidence at punishment. Specifically, she would not

consider genetics, background, upbringing, environment, or voluntary

intoxication. (RR30: 82-83). On appeal, appellant claims the trial court abused its

discretion in denying his challenge on this ground. (Appellant’s Brief, p. 60-61).

Griffith’s testimony shows that she would listen to any evidence appellant

presented on the second special issue, but that she might not regard it as

mitigating. (RR30: 58-59, 65, 70-76). This did not disqualify her from service

because she had no duty to treat any particular evidence as mitigating. Standefer,

59 S.W.3d at 181. The court properly denied this challenge.

Griffith was qualified to serve on appellant’s jury, and this Court should

overrule Issue 12.

76 Issue 13: Bradford McCutheon

Appellant exercised his thirteenth peremptory strike against venireperson

Bradford McCutheon. (RR31: 112). At trial, appellant objected that McCutheon

would not be able to give fair and accurate consideration to the special issues.

(RR31: 111). On appeal, appellant contends the trial court abused its discretion in

denying this challenge. (Appellant’s Brief, pp. 64-65). The record supports the

court’s ruling.

Appellant argues that McCutheon’s questionnaire and testimony show that

he would automatically assess a death sentence if he found appellant guilty of

capital murder. (Appellant’s Brief, p. 65). Although McCutheon’s responses

showed that he strongly favored the death penalty, they also showed that he

would not automatically assess it. Throughout his testimony, McCutheon

repeatedly and expressly stated that he would not automatically answer the

special issues “yes” and “no” just because he found someone guilty of capital

murder. He also denied that he would let his feelings rather than the law control

his answers to the issues. He stated that he would follow the law, keep an open

mind to any evidence presented, and let the evidence determine his answers.

(RR31: 35, 46-48, 51, 53, 57, 59-60, 82-84,87-89, 102-03). He thought that the

77 process of answering the special issues made sense and was better than jurors

simply voting for a life or death sentence. (RR31: 61, 75-76). He was not death

prone and the court properly denied this challenge.

McCutheon was qualified to serve on appellant’s jury, and this Court should

overrule Issue 13.

Issue 14: Elvira Corpus

Appellant exercised his fourteenth peremptory against venireperson Elvira

Corpus. (RR3: 70). At trial, appellant objected that Corpus would automatically

assess a death sentence if she found him guilty of capital murder and that she

would not consider his mitigating evidence. (RR33: 68-69). On appeal, appellant

argues that the trial court abused its discretion in denying his challenge on both

these grounds. He also argues that the court should have excused Corpus because

she would not fairly assess the credibility of police officers. (Appellant’s Brief, pp.

66-68).

Because the third ground was not raised at trial, it is not preserved for

appellate review. Tex. R. App. P. 33.1(a). Nevertheless, appellant fails to

demonstrate that Corpus should have been excused for cause on any of the three

grounds argued on appeal.

78 “Death Prone”

Appellant argues that Corpus’s questionnaire responses and testimony

both show that she would automatically assess a death sentence if she found

appellant guilty of capital murder. In particular, he cites responses in her

questionnaire that show she strongly supports the death penalty. He also cites

two excerpts from her testimony in which she appears to be saying that she

would automatically answer the mitigation issue “no.” (Corpus Questionnaire, pp.

2, 5-6; RR33: 55-56).

Corpus’s questionnaire showed that she strongly favored the death

penalty, but it also showed that she did not think it was appropriate in every case.

(Corpus Questionnaire, p. 1). Nowhere in her questionnaire did she state that she

thought a death sentence should be automatically assessed. (Corpus

Questionnaire).

The two testimonial excerpts appellant cites show only that Corpus was

confused by and misunderstood defense counsel’s questions at one point. The

prosecutor objected to the nature of defense counsel’s questions several times

during these excerpts, and Corpus expressed her confusion. (RR33: 58-59). Both

before and after those two exchanges, Corpus consistently maintained that she

79 would not automatically answer either issue, that she would wait and listen to the

evidence, and that she would keep an open mind. (RR33: 22, 25, 27-30, 34-35, 40-

41, 49-50, 60-66). To the extent Corpus made any statements that reflected

otherwise, the conflict was the court’s to resolve, and it resolved it against

appellant. That determination was proper and is entitled to deference. Threadgill,

146 S.W.3d at 667.

Appellant argues that Corpus would not give adequate consideration to his

mitigation evidence because she did not think evidence of background,

intoxication, or mental health excused crime. Corpus’s testimony shows that she

would listen to any evidence appellant presented on the second special issue, but

she might not regard it as mitigating. (RR33: 63-66). This did not disqualify her

from jury service because Corpus had no duty to treat any particular evidence as

mitigating. Standefer, 59 S.W.3d at 181. The court properly denied this challenge

as well.

Appellant contends Corpus was biased because she thought “police officers

were more likely to tell the truth.” (Appellant’s Brief, p. 67). Corpus did make that

80 statement in her questionnaire. (Corpus Questionnaire, p. 5). But at trial, Corpus

agreed that all witnesses start out on equal footing and that she would wait and

listen to an officer’s testimony before determining his credibility. (RR33: 38-39).

Thus, Corpus held no bias against the law governing police officer testimony, and

the court properly overruled this challenge.

Corpus was qualified to serve on appellant’s jury, and this Court should

overrule Issue 14.

Issue 15: Temple Koestner

Appellant exercised his fifteenth peremptory strike against venireperson

Temple Koestner. (RR33: 157). At trial, appellant objected that Koestner would

automatically equate a guilty verdict with a death sentence and that she would

not consider his mitigation evidence. (RR33: 154-55). On appeal, appellant argues

that the trial court abused its discretion in denying his challenge on both these

grounds. He also argues that the court should have excused Koestner because she

would not fairly assess the credibility of police officers and because she would

disregard the court’s instructions. (Appellant’s Brief, pp. 66-68).

Because these two additional grounds were not raised at trial, they are not

preserved for appellate review. Tex. R. App. P. 33.1(a). Nevertheless, appellant

81 fails to demonstrate that Koestner should have been excused for cause on any of

the four grounds argued on appeal.

Appellant contends Koestner’s questionnaire responses show that she was

prone to vote for death if she found him guilty of capital murder. (Appellant’s

Brief, pp. 70-71). In actuality, her questionnaire shows only that she strongly

favored the death penalty and that she thought it was an appropriate punishment

in some murder cases, not all. She considered the death penalty and life without

parole equally severe sentences. (Koestner Questionnaire, pp. 1, 3).

Koestner’s testimony also shows that she was not predisposed to assess a

death sentence. She confirmed her opinion that a life sentence was as severe as

the death penalty. She repeatedly stated that she would not automatically assess

a death sentence if she found him guilty. She said her feelings favoring the death

penalty would not prevent her from following the law. She would keep an open

mind to the evidence presented, and she would wait and apply the evidence to

the special issues. (RR33: 87, 92, 99, 108, 116-17, 132-37, 148-49). At one point

during questioning by defense counsel, Koestner became confused about

whether counsel was asking her about her feelings or her ability to follow the law

82 in assessing punishment. (RR33: 142-46). To the extent Koestner’s answers during

that exchange created any conflict in her testimony, that conflict was the court’s

to resolve and it resolved it against appellant. Threadgill, 146 S.W.3d at 667.

Given the totality of Koestner’s testimony, that decision was reasonable and

Appellant argues that Koestner would not give adequate consideration to

his mitigation evidence because on her questionnaire, she stated that she did not

think evidence of genetics, environment, upbringing, and background should be

considered when determining punishment. (Koestner Questionnaire, p. 6). At

trial, however, Koestner testified that she would set aside those feelings and

consider the evidence in determining her answers to the special issues. (RR33:

149-52). At most, her testimony and questionnaire showed that she might not

regard such evidence as mitigating. This did not disqualify her from jury service

because Koestner had no duty to treat any particular evidence as mitigating.

Standefer, 59 S.W.3d at 181. The court properly denied this challenge as well.

83 Police Officer Credibility

Appellant contends Koestner was biased because in her questionnaire she

agreed that “police officers were more likely to tell the truth.” (Appellant’s Brief,

p. 71). In addition to that statement, Koestner added, “With cameras in the cars

now the officers have to tell the truth. The cameras don’t lie.” (Koestner

Questionnaire, p. 5). But at trial, Koestner agreed that all witnesses start out on

equal footing and that she would wait and listen to each witness’s testimony

before determining his credibility. (RR33: 118-19). Thus, Koestner held no bias

against the law governing police officer testimony, and the court properly

Following Court’s Instructions

Appellant contends Koestner’s response to question 41 in her

questionnaire shows that she would not follow the court’s instructions on the

law. In question 41, Koestner agreed with the statement, “Regardless of what a

judge says the law is, jurors should do what they believe is the right thing.” She

also added, “The jury must do as instructed, but can give the judge what they

believe is right.” (Koestner Questionnaire, p. 7).

84 No one questioned Koestner about this statement during her testimony or

explained the law to her. Without first explaining to her that the law required

jurors to follow the court’s instructions, Koestner could not be deemed biased

against the law. Threadgill, 146 S.W.3d at 667. Moreover, the totality of

Koestner’s testimony shows that she understood and considered herself duty

bound to follow the law if selected for the jury. Thus, if appellant had challenged

Koestner on this basis at trial, denial of that challenge would have been proper.

Koestner was qualified to serve on appellant’s jury, and the Court should

overruled Issue 15.

Issue 16: Nancy Munn

Appellant exercised his sixteenth peremptory strike against venireperson

Nancy Munn. (RR36: 176-77). At trial, appellant objected that Munn was “death

prone,” would not hold the State to its burden of proof regarding a “technicality,”

and would presume police officers were more credible. (RR36: 170-74). On

appeal, appellant contends the trial court abused its discretion in denying the

foregoing challenges. (Appellant’s Brief, pp. 75-78). The record reflects otherwise.

85 “Death Prone”

Appellant contends Munn so strongly favored the death penalty that she

would automatically answer the future dangerousness special issue affirmatively

if she found him guilty of capital murder. He claims she would also automatically

answer the second special issue “no” if she found him to be a future danger.

(Appellant’s Brief, pp. 74-78).

Although Munn’s questionnaire and testimony both show her strong

support for the death penalty, her testimony shows that her feelings would not

affect her ability to follow the law and assess a sentence based on the law and the

evidence. Munn stated that she believed there could be some cases where life

without parole would be an appropriate sentence. (RR36: 112). She also stated

that she believed some people could be rehabilitated. (RR36: 113). During

questioning by both sides, she repeatedly stated that she would not automatically

answer either special issue, that she thought the special issues were fair, and that

she would consider any evidence offered in determining her answers to the

issues. She also stated that she believed there could be evidence that would

convince her appellant deserved a life sentence. (RR36: 117, 129-30, 134-35, 143-

44, 150-62).

86 Appellant argues that some of Munn’s answers were equivocal,

demonstrating an uncertainty about her ability to follow the law. Any

equivocation in Munn’s answers was for the trial court to resolve, and it was

resolved against appellant. That determination is entitled to deference and is

supported by the totality of Munn’s testimony. Threadgill, 146 S.W.3d at 667.

Appellant argues that Munn could not hold the State to its burden of proof

on the issue of guilt because she would have difficulty acquitting someone based

on the State’s failure to prove a “technicality,” such as venue in Dallas County.

(Appellant’s Brief, p. 77). Munn’s testimony reflects, however, that she

understood the State’s burden and her duty if the State failed to meet it. (RR36: ).

When presented with the scenario of the State failing to prove venue, Munn

stated, “It would have to be that he was innocent because it had to be in Dallas

County.” (RR36: 124). During defense questioning, Munn expressed some distress

at being put in the position of acquitting in that scenario. Still, she stated that she

believed she could follow the law and acquit. (RR36: 145-47). The court properly

found no bias on this basis.

87 Police Officer Credibility

Appellant argues that Munn would give police officers more credibility than

other witnesses. (Appellant’s Brief, p. 76). The record reflects the opposite. In her

questionnaire, Munn stated that she believed police officers are more likely to tell

the truth than the average person. But she also wrote, “I think they are people so

they make mistakes, however & also I think that suit gives some people a

perceived power.” (Munn Questionnaire, p. 5). Furthermore, during her

testimony, Munn stated that she would treat all witnesses the same, that she did

not believe everyone tells the truth all of the time, and that police officers are

human. She also stated that she would not automatically find an officer credible,

but would wait and listen to their testimony to judge their credibility. (RR36: 162-

63). The court properly concluded that Munn held no bias in favor of a police

officer’s testimony.

Munn was qualified to serve on appellant’s jury, and this Court should

overrule Issue 16.

Issue 17: Ernest Hand

Appellant requested additional strike to eliminate venireperson Ernest

Hand. The trial court denied the request, having already given appellant two

88 additional strikes.3 (RR39: 90-91). At trial, appellant objected that Hand was

“death prone.” (RR39: 89-90). On appeal, appellant contends the trial court

abused its discretion in denying this challenge. He also argues that the court

should have excused Hand because he would not fairly assess the credibility of

police officers and would not consider appellant’s mitigation evidence.

(Appellant’s Brief, pp. 80-81). Because the two additional grounds were not raised

at trial, they are not preserved for appellate review. Tex. R. App. P. 33.1(a).

Nevertheless, appellant fails to demonstrate that Hand should have been excused

for cause on any of the three grounds argued on appeal.

Appellant argues that Hand was “death prone” because he strongly favored

the death penalty. In support of this contention, appellant cites Hand’s

questionnaire in which he stated that he thought the death penalty was used to

seldom and that it took too long to administer. Also, he stated that he thought

the justice system was too lenient, slow, and inconsistent. (Appellant’s Brief, p.

80).

3 Appellant exercised his second extra strike (strike 17) against venireperson Robin Schwartz (RR37: 85). He challenged Schwartz for cause at trial, but does not complain about the denial of that challenge on appeal. (RR37: 81-83). 89 Although Hand did strongly support the death penalty, his questionnaire

reflects that he did not think it should be applied in all murder cases.

Furthermore, during his testimony, Hand stated that he believed some murderers

deserve a life sentence. He also testified that he would not automatically assess a

death sentence. He would wait and listen to the evidence and apply it to the

special issues. (RR39: 27, 32, 37, 43-46, 64-65, 75-78, 83). The trial court properly

denied this challenge.

Appellant argues that Hand was biased toward police officers. (Appellant’s

Brief, p. 80). In support of this argument, appellant cites Hand’s questionnaire in

which he stated that he agreed police officers were more likely to tell the truth

than the average person. According to Hand, “They are more accountable.” (Hand

Questionnaire, p. 5).

On their own, Hand’s statements in his questionnaire do not evince a bias

in favor of officers. His statements reflect only that he expects officers to be

truthful, not that he will automatically find them more credible. Furthermore,

Hand testified that he understood he must treat all witnesses, including officers,

alike, and wait until they testified to assess their credibility. (RR39: 44-46). Thus, if

90 appellant had challenged Hand on this basis at trial, denial of that challenge

would have been proper.

Appellant argues that Hand would not give adequate consideration to his

mitigation evidence because on her questionnaire, he stated that he did not think

evidence of genetics, environment, upbringing, and background should be

considered when determining punishment. In addition, he wrote that “there is no

circumstance that gives a person the right to murder except in personal danger.”

(Hand Questionnaire, p. 6).

At trial, Hand testified that he would listen to any evidence presented on

the special issues. (RR39: 43, 64-65, 75). At most, Hand’s questionnaire showed

that he might not regard evidence of background, environment, etc. as mitigating.

This did not disqualify him from jury service. Hand had no duty to treat any

particular evidence as mitigating. Standefer, 59 S.W.3d at 181. Thus, if appellant

had challenged Hand on this basis at trial, denial of that challenge would have

been proper as well.

Hand was qualified to serve on appellant’s jury, and this Court should

overrule Issue 17.

91 Issue 18: Elizabeth McDaniel

Appellant challenged McDaniel on the basis that she was death prone and

would automatically assess a death sentence if she found the appellant guilty of

capital murder. Appellant argued that he did not believe she would give adequate

consideration to special issue number one. He also argued that, with regard to

special issue number two, she would require him to testify and show remorse in

violation of his Fifth Amendment rights. (Appellant’s Brief, pp. 81-83).

Nothing in McDaniel’s questionnaire or testimony supports appellant’s

contentions. McDaniel’s questionnaire showed that she strongly favored the

death penalty, but it also showed that she did not think it was appropriate in

every case. (McDaniel Questionnaire, p. 1). Nowhere in her questionnaire did she

state that she thought a death sentence should be automatically assessed.

(McDaniel Questionnaire). Throughout her testimony, McDaniel repeatedly

affirmed that she would not automatically vote for death if she found appellant

guilty and that she would wait and consider the evidence presented at

punishment in answering the special issues. (RR39: 134, 142-43, 156-58, 163,

165). She affirmed her understanding of special issue number one and that the

jury could not answer that issue “yes” unless the State met its burden of proof.

92 (RR39: 134-38, 160-62). She affirmed that if she heard sufficiently mitigating

evidence she could assess a life sentence. (RR39: 141). She stated her

understanding that a defendant does not have testify and confirmed that she

would follow the court’s instruction not to consider a defendant’s failure to testify

for any purpose during her deliberation. (RR39: 144, 166).

McDaniel was qualified to sit on the jury, and this Court should overrule

Issue 18.

Issue 19: Arleen Jimenez

Appellant challenged Jimenez on the basis that she would automatically

assess the death penalty if she found the defendant guilty of capital murder. He

also challenged her on the basis that she viewed the death penalty as a deterrent

and was not used enough. (Appellant’s Brief, pp. 83-85).

Jimenez’s questionnaire shows only that she strongly favored the death

penalty and that she thought it was an appropriate punishment in some murder

cases, not all. She considered the death penalty and life without parole equally

severe sentences. (Jimenez Questionnaire, pp. 1-2). Further, Jimenez’s testimony

shows that she was not predisposed to assess a death sentence. Jimenez stated

that she could follow the law and not automatically give someone a death

93 sentence just because they have been found guilty. (RR40: 39-40, 48, 56, 60). She

affirmed that she would keep an open mind and wait to hear all the evidence

before she answered special issues. (RR40: 42, 48, 57-60, 62, 71-72). Appellant

fails to demonstrate that Jimenez had a bias against him or the law in any way.

Jimenez was qualified to sit on the jury, and this Court should overrule

Issue 19.

Issue 20: Dan Blanks

In his final issue, appellant complains that the trial court improperly denied

his challenge for cause against Dan Blanks. However, Mr. Blanks was the alternate

and did not participate in jury deliberations. As such, appellant cannot show he

was harmed by the trial court’s ruling on his challenge for cause against Blanks.

In any event, appellant’s claims are without merit. Appellant challenged

Blanks on the basis that he equated the death penalty with a guilty verdict. On

appeal, appellant also argues that Blanks thought police officers were more likely

to tell the truth that the average person. (Appellant’s Brief, pp. 84-85). Because

this additional ground was not raised at trial, it is not preserved for appellate

review. Tex. R. App. P. 33.1.

94 Blanks’ questionnaire showed that he strongly favored the death penalty,

but it also showed that he did not think it was appropriate in every case. (Blanks

Questionnaire, p. 1). Nowhere in his questionnaire did he state that he thought a

death sentence should be automatically assessed. (Blanks Questionnaire). During

his testimony, Blanks affirmed that he would not automatically vote for death if

he found appellant guilty and that he would wait and consider all the evidence

before making any decision on how to answer the special issues. (RR41: 36-37, 48-

49, 53, 59-60, 64). He also affirmed that he would judge the credibility of the

witness based on their testimony, not before he or she testifies. (RR41: 38-39). As

such, Blanks was qualified to sit on the jury, and this Court should overrule Issue

20.

Conclusion

Appellant has not shown even one erroneous ruling on his challenges for

cause, much less three erroneous rulings. Therefore, he has not shown this Court

that he was denied the use of a statutorily provided peremptory strike. Issues 1

through 20 should be denied.

95 Issues 21 and 22: Constitutional Right To Fair And Impartial Jury

In Issues 21 and 22, appellant contends the trial court’s denial of his

challenges for cause deprived him of a lawfully constituted jury resulting in

violations of his rights under the state and federal constitutions and under article

35.16 of the Texas Code of Criminal Procedure. (Appellant’s Brief, pp. 88-89).

Appellant’s contentions are meritless. He has failed to show the trial court’s

rulings on any of the challenges resulted in the seating of a juror who was biased

or prejudiced. If an appellant does not present record evidence demonstrating

that the trial court’s error deprived him of a jury comprised of legally qualified

jurors, he has suffered no harm and the reviewing court should presume the

jurors are qualified. See Gray v. State, 233 S.W.3d 295, 301 (Tex. Crim. App. 2007).

Therefore, this Court should overrule Issues 21 and 22.

Issues 23-26: Admission Of Autopsy Photographs

In Issues 23 through 26, appellant contends that the trial court erred in

overruling his Rule 403 objections to State’s Exhibits 4-9, 11-23 and 77-78,

autopsy photographs of the victims. (Appellant’s Brief, pp. 90-97). He does not

address the photographs individually, but generally contends they were excessive.

He also complains they were unfairly prejudicial because there were no

96 controverted issues as to cause of death. His contentions are without merit and

should be overruled.

Applicable Law

The admissibility of a photograph is within the sound discretion of the trial

judge. Paredes v. State, 129 S.W.3d 530, 539 (Tex. Crim. App. 2004); Williams v.

State, 958 S.W.2d 186, 195 (Tex. Crim. App. 1997). Generally, a photograph is

admissible if verbal testimony about the subject of the photographs is also

admissible. Id.; Gallo v. State, 239 S.W.3d 757, 762 (Tex. Crim. App. 2007) (holding

that, if verbal testimony is relevant, photographs of the same are also relevant).

More specifically, a visual image of the injuries appellant inflicted on the victim is

evidence that is relevant to the jury’s determination and is admissible. Gallo, 239

S.W.3d at 762; Tex. R. Evid. 401. The fact that the jury also heard testimony

regarding the injuries depicted does not reduce the relevance of the visual

depiction. Id.

Rule 403, on the other hand, allows for the exclusion of otherwise relevant

evidence when its probative value is substantially outweighed by the danger of

unfair prejudice, confusion of the issues, or misleading the jury, or by

considerations of undue delay, or needless presentation of cumulative evidence.

97 See Tex. R. Evid. 403. Rule 403 favors the admission of relevant evidence and

presumes that relevant evidence will be more probative than prejudicial.

Williams, 958 S.W.2d at 196. A court may consider several factors in determining

whether the probative value of photographs is substantially outweighed by the

danger of unfair prejudice, including but not limited to: the number of exhibits

offered, their gruesomeness, their detail, their size, whether they are black and

white or color, whether they are close-up, and whether the body depicted is

naked or clothed. Id. A reviewing court must also consider the availability of other

means of proof and the circumstances unique to each individual case. Id.

Issues 23 and 24: The Trial Court Did Not Abuse its Discretion by Overruling Appellant’s Objections to State’s Exhibits 4-9 and 11-23

In a pretrial hearing held outside the presence of the jury, appellant

requested that the trial court make a threshold determination of the admissibility

of autopsy photographs of the victims. (RR42: 28-30). He argued that because the

defense was conceding guilt and there was no issue with regard to the cause of

death of the victims, no autopsy photographs should be admitted because they

have no probative value and are only being offered to inflame the jury. (RR42: 28-

34). The State notified the trial court that it was in possession of over 170

photographs, some of them quite graphic, but that they had met with the medical 98 examiner and selected only the ones necessary to aid her in explaining the injuries

sustained by the children. (RR42: 30, 34, 39). The trial court examined the thirteen

photographs of Elijah Muhammad and six photographs of Naim Muhammad that

the State planned to offer. (RR42: 34-38; State’s Exhibits 4-9, 11-23). The trial

court found the probative value the photographs outweighed the prejudicial

effect and overruled appellant’s objections. (RR42: 36-38).

All of the photographs admitted were in color and were 8 ½ by 11 inches.

State’s Exhibits 11-23 are autopsy photographs of Elijah. Exhibits 11 and 12 depict

how Elijah appeared when he arrived at the medical examiner’s office and the

clothes he was wearing. Additionally, Dr. Dyer used exhibit 11 to explain the

process of postmortem purging, and exhibit 12 to explain their standard practice

for collecting fingernail clippings. (RR42: 122-23; State’s Exhibits 11-12). She

explained that after the “as-is” photographs are taken of the victim, the body is

cleaned up for the autopsy and re-photographed, which is what is depicted in

exhibit 13. (RR42: 124; State’s Exhibit 13).

Dr. Dyer used exhibits 14-21 to describe the various injuries she observed

during the external examination of Elijah. Although Elijah is not clothed, all of the

photographs are close-ups of specific parts of his body. The photographs are not

99 repetitious and each depicts a different area of injury. Specifically, exhibits 14 and

15 depict the facial injuries he sustained; exhibit 16 depicts a linear abrasion on

his back; exhibit 17 depicts abrasions on the outside of the leg; exhibit 18 depicts

abrasions and a blister on the sole of his left foot; exhibit 19 depicts abrasions on

the top of the right foot; exhibit 20 depicts abrasions on the back side of his right

leg; and exhibit 21 depicts an abrasion on his wrist. (RR42: 124-26; State’s Exhibits

14-21). Dr. Dyer used exhibits 22 and 23 to describe the injuries she observed

during the internal examination of Elijah. Exhibit 22 depicts the bruising on the

inside of his scalp and exhibit 23 depicts the dirt and debris that were found in his

airway. (RR42: 126-28; State’s Exhibits 22-23).

State’s Exhibits 4-9, autopsy photographs of Naim, were used in the same

manner as the photographs of Elijah contained in State’s Exhibits 11-23. State’s

Exhibit 4 is the “as-is” photograph of Naim – it depicts the clothes he was wearing

and how he presented when he arrived at the medical examiner’s office. (RR42:

135; State’s Exhibit 4). It also depicts white foam coming from his nose, the result

of postmortem purging. (RR42: 134-36; State’s Exhibit 4). Exhibit 5 shows how

Naim appeared after the debris was removed and he was cleaned by the medical

examiner. (RR42: 136; State’s Exhibit 5). Exhibits 6-8 are close-ups of specific parts

100 of Naim’s body, each depicting a different area of injury observed during the

external examination. Specifically, exhibits 6 and 7 depict abrasions on the side of

the face and forehead, and exhibit 8 depicts abrasions on the back of hand.

(RR42: 136-37; State’s Exhibits 6-8). Exhibit 9, taken during the internal

examination, depicts the bruising he sustained on the inside of his scalp. (RR42:

137-38; State’s Exhibit 9).

The medical examiner was entitled to testify to the manner of death, the

cause of death, and the number and types of injuries sustained by each victim,

issues to which these photographs were relevant. The fact that appellant did not

contest the manner of death does not render the photos irrelevant. See Long v.

State, 823 S.W.2d 259, 274, 275 (Tex. Crim. App. 1991) (holding that testimony

and photographs as to manner, cause, and time of death are relevant to capital

murder prosecution even though defendant pled guilty).

Mindful of the potential for unfair prejudice, the State took great care to

reduce the number of autopsy photographs and utilized only the ones necessary

for Dr. Dyer’s testimony. Furthermore, in the realm of capital murder victim

photos, the pictures are nothing close to gruesome. See, e.g., Gallo, 239 S.W.3d at

763-64 (upholding admission of twenty-three photographs of 3 year-old victim

101 including photographs of vaginal injuries, internal injuries including close-ups of

cracked ribs, a picture in which the rib had been removed from the body, various

views of the underside of the victim’s scalp and the victim’s skull, and one picture

of the victim’s brain). Sixteen of the nineteen photos admitted in this case are

pre-autopsy and show only external abrasions inflicted during the offense. And

while exhibits 9, 22 and 23 are slightly more graphic, the photographs show

bruising or other damage that is attributable to appellant’s actions but is not

visible externally, thereby making the photographs highly relevant to the manner

of death. See Ripkowski v. State, 61 S.W.3d 378, 392-93 (Tex. Crim. App. 2001).

The trial court did not abuse its discretion in determining that the probative

value of these photographs was not substantially outweighed by unfair prejudice.

Accordingly, Issues 23 and 24 are without merit and should be overruled.

Issues 25 and 26: The Trial Court Did Not Abuse its Discretion by Overruling Appellant’s Objections to State’s Exhibits 77 and 78

At a hearing outside the presence of the jury, appellant made a Rule 403

objection to State’s Exhibits 77 and 78, autopsy identification photographs of the

children. (RR43: 133). Appellant argued that, in light of their concession of guilt,

there was no probative value in admitting the photographs and they were only

being offered to provoke a visceral response from the mother on the witness 102 stand. (RR43: 133-35). The State argued that, despite any conciliatory statements

made by appellant during voir dire and the guilt phase, he did not plead guilty and

they are still required to prove the identity of the decedents beyond a reasonable

doubt. (RR43: 135). The trial court examined the two photographs and overruled

appellant’s objection. (RR43: 136-41).

State’s Exhibit 77 is an autopsy identification photo of Elijah. He is shown

unclothed from the chest up, lying on a table. The medical examiner’s placard

showing autopsy identification number IFS-11-12022 is placed across his chest.

(State’s Exhibit 77). State’s Exhibit 78 is an autopsy identification photo of Naim.

He is also shown unclothed from the chest up, lying on a table, and a placard with

autopsy identification number IFS-11-12023 is across his chest. (State’s Exhibit

78). At the conclusion of the direct examination of Kametra, the State showed her

exhibits 77 and 78. (RR43: 141). Kametra identified the individual in exhibit 77 as

Elijah and the individual in exhibit 78 as Naim. (RR43: 141). There was no outburst

or visceral response by Kametra when she viewed the photographs. (RR43: 141).

Kametra’s identification of the individuals in State’s Exhibits 77 and 78

linked Dr. Dyer’s autopsy reports to the named victims. (RR43: 141-42; State’s

Exhibits 10, 24, 77-78). As such, they were highly relevant. These exhibits are not

103 particularly gruesome or detailed, are not enhanced in any way, and portray no

more than the condition of the victims due to the injuries inflicted by appellant.

As such, the trial court did not abuse its discretion in holding that the probative

value of the photographs outweighed the danger of unfair prejudice. See, e.g.,

Young v. State, 283 S.W.3d 854, 875 (Tex. Crim. App. 2009) (trial court did not

abuse its discretion in determining that an autopsy identification photograph

used to tie the victim to his assigned case number was relevant and that its

probative value outweighed the danger of unfair prejudice).

Issues 25 and 26 are without merit and should be overruled.

Issues 27 and 41: Jury Argument

In Issues 27 and 41, appellant contends that the trial court erred in denying

his objections to the State’s closing argument during both the guilt-innocence and

punishment phases of trial. (Appellant’s Brief, pp. 97-99, 124-25). His contentions

are without merit and should be overruled.

The purpose of closing argument is to facilitate the jury’s proper analysis of

the evidence presented at trial so that it may arrive at a just and reasonable

conclusion based on the evidence alone and not on any fact not admitted into

104 evidence. Campbell v. State, 610 S.W.2d 754, 756 (Tex. Crim. App. [Panel Op.]

1980). Proper jury argument generally falls within one of four areas: (1)

summation of the evidence, (2) reasonable deduction from the evidence, (3)

answer to an argument of opposing counsel, and (4) plea for law enforcement.

Freeman v. State, 340 S.W.3d 717, 727 (Tex. Crim. App. 2011). Counsel is

generally afforded wide latitude in drawing inferences from the record, as long as

the inferences are reasonable and offered in good faith. Coble v. State, 871

S.W.2d 192, 205 (Tex. Crim. App. 1993) (en banc).

Even when an argument exceeds the permissible bounds of these approved

areas, such will not constitute reversible error unless, in light of the record as a

whole, the argument is extreme or manifestly improper, violative of a mandatory

statute, or injects new facts harmful to the accused into the trial proceeding.

Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000). The remarks must

have been a willful and calculated effort on the part of the State to deprive

appellant of a fair and impartial trial. Id. An instruction to disregard, which the

jury is presumed to follow, will generally cure the improper argument. Id.

105 Closing Argument at Guilt-Innocence

In Issue 27, appellant contends that the trial court erred in overruling his

objection to the State arguing outside the scope of the guilt-innocence stage of

trial. The complained-of argument went as follows:

MS. SWEET: He told you what he did. He took those two little boys down to the nasty, smelly overgrown creek, and he carried one down, and the other one he was holding a hand. The little boy was reaching out and grabbing Daddy’s shirt. Did they know what Daddy was going to do? They did because they were crying, Daddy, Daddy, we love you. We love you, Daddy. They knew they were going to die. He had already told them. What did he tell them? Your mama don't want us anymore. Your mama doesn’t want us. That’s what he told them. What better way to get back at her than to kill those two kids? That’s why he did it. He did it to get back at her. He did it to make sure that no other man would ever show them any real love, so no other man would be a real father like he never was.

MR. JOHNSON: Excuse me, Judge. I’m going on object to this argument, the entirety of this argument. It is outside the scope of the guilt/innocence issue before this jury, and I would ask the Court to instruct the prosecutor to limit her remarks to the evidence that goes to the proof or denial of whether or not the Defendant committed the offense.

THE COURT: Ms. Sweet, just argue the evidence and the law. Thank you.

MR. JOHNSON: And, Judge, I’m going to ask that the instruction be limited further to argue the evidence and the law as it applies to whether or not the Defendant committed the offense.

THE COURT: I have already instructed the prosecutor. Argue the 106 evidence and the law. Proceed, Ms. Sweet.

MS. SWEET: Y’all can remember the evidence that you heard yesterday, Monday. He took those kids down there and he knew what he was going do, and he told them to sit down. What did he tell them? Put your head down in the water and act like you are swimming. And that’s when he took his hands and he put them on each kid and he held their head under the water. Can you imagine what that must have felt like? What were those kids thinking?

MR. JOHNSON: Judge, again, I'm going to object again. This entire argument is now outside the scope of guilt/innocence and we're going to object to it at this phase of the trial.

THE COURT: I will overrule the objection.

MS. SWEET: That's how he killed them, in a dirty, nasty creek. That's where their life ended. It's the first day of school for Naim, but it was the last day of his life. So these two little precious boys, two little precious innocent babies, they were crying for their mother. That was in evidence. They were crying for mom. They are crying for mom to help them. And this is how they end up. This is his handiwork right here. That is how they ended up. That's what he did to them. That's how much they meant to him and then he left them there like garbage.

(RR44: 25-28).

Appellant’s complaint was not preserved and is not properly briefed

To preserve a complaint regarding improper jury argument for appellate

review, a party must make a timely request, objection, or motion with sufficient

specificity to apprise the trial court of the complaint. See Tex. R. App. P. 33.1(a);

107 Estrada v. State, 313 S.W.3d 274, 303 (Tex. Crim. App. 2010). Trial counsel failed

to explain how the argument fell outside the scope of the guilt-innocence portion

of the trial, nor is it apparent from the face of the argument. Consequently, trial

counsel’s objection lacked sufficient specificity to make the trial court aware of

the exact nature of his complaint, and therefore, has failed to preserve this issue

for review. See Tex. R. App. P. 33.1(a) .

Additionally, appellant has failed to adequately brief this issue on appeal.

Appellant claims that the prosecutor’s remarks concerning what the victims felt

when their heads were held under water was improper because it was outside of

the scope of guilt-innocence because it injected facts not in the record, was

“maudlin” and “in poor taste,” and its only purpose was to begin to create

prejudice toward appellant. (Appellant’s Brief, pp. 98-99). However, appellant

fails to cite any case law that supports his assertion that the prosecutor’s

argument was improper. Rule 38.1 of the Texas Rules of Appellate Procedure

requires that a brief contain a clear and concise argument for the contentions

made with appropriate citations to authorities and to the record. See Tex. R. App.

P. 38.1(i). Because appellant has wholly failed to make a clear argument and cite

108 appropriate authorities, his argument is inadequately briefed and should be

summarily denied.

The trial court did not err by overruling appellant’s objection

Should this Court consider this issue, despite counsel’s failure to properly

preserve and brief the issue, the record reflects that the trial court properly

overruled appellant’s objection. The complained-of argument fell within the

permissible areas of argument because the remarks were a proper summation

and called for reasonable deductions from the evidence presented at trial.

The evidence presented at trial indicated that appellant abducted Kametra,

Naim, and Elijah as the three of them walked to Naim’s school. As appellant then

drove them through the neighborhood, he threatened Kametra and the boys.

When appellant stopped at a red light, Kametra saw a constable parked nearby

and jumped out of the car, to get the constable’s help. Appellant, who had

warned Kametra not to jump out of the car, sped off with Naim and Elijah. Elijah,

who was in the backseat of the car with Naim, began to cry and ask for his

mother. Appellant told both boys that she did not love them. Appellant then

drove to a secluded creek. Because Elijah did not have shoes on, he carried Elijah

down to the creek bed, while Naim walked beside them, holding on to appellant’s

109 shirt. Next, appellant forced them to sit down in the water with their backs to

him. Both boys were crying; Elijah asking for his mother and Naim telling

appellant that he loved him. Appellant then forced both boys to place their heads

under the water, telling them to pretend like they were swimming, and held their

heads under the water until both boys stopped moving.

Accordingly, the prosecutor’s remarks merely asked the jury to use their

experience and knowledge to deduce from the evidence the level of confusion

and fear the boys felt as a result of the appellant’s actions. Such argument was

permissible and appropriate. See Palermo v. State, 992 S.W.2d 691, 696 (Tex.

App.—Houston [1st Dist.] 1999, no pet.) (stating prosecutor may ask jurors to

imagine what a victim experienced during a crime as long as the argument is

based on the evidence and reasonable deductions from the evidence, rather than

sheer conjecture); see also, e.g., Torres v. State, 92 S.W.3d 911, 920-22 (Tex.

App.—Houston *14th Dist.+ 2002, pet. ref’d) (finding prosecutor’s argument

stating “I want you to close your eyes and think of how that young man felt”

asked the jury to make reasonable deductions from the evidence regarding the

degree of terror and pain experienced by the complainant shortly before his

death and was permissible); Linder v. State, 828 S.W.2d 290, 303 (Tex. App.—

110 Houston [1st Dist.] 1992, pet. ref’d) (determining prosecutor’s argument asking

“Can you imagine what it was like to be that woman?” asking jurors to imagine

what a victim of a burglary and attempted sexual assault to imagine what it was

like to be the victim was a legitimate appeal to the jury to apply their general

knowledge and experience to the evidence presented at trial). Consequently, the

trial court did not err in overruling appellant’s objection to this argument.

Error, if any, was harmless

Nevertheless, even if this Court were to find that the State’s argument was

improper, any error was harmless.

Improper argument is non-constitutional error, and non-constitutional

error that does not affect a defendant’s substantial rights must be disregarded.

Brown v. State, 270 S.W.3d 564, 572 (Tex. Crim. App. 2008); Tex. R. App. P.

44.2(b). To determine whether an appellant’s substantial rights were affected, an

appellate court balances three factors: (1) the severity of the misconduct (i.e., the

prejudicial effect), (2) any curative measures, and (3) the certainty of conviction

absent the misconduct. See Brown, 270 S.W.3d at 572-73. In evaluating the

severity of the misconduct, the reviewing court must assess whether the

argument injected new and harmful facts or was, in light of the entire argument,

111 extreme or manifestly unjust and willfully calculated to deprive appellant of a fair

and impartial trial. Id. at 573.

Viewing the State’s closing argument as a whole, the record does not

demonstrate that there was a willful, calculated effort to deprive the appellant of

a fair and impartial trial. The argument made no reference to the punishment

phase or special issues and did not inject new facts into the record. The

prosecutor was simply asking the jury to apply their general knowledge and

experience to the evidence that was properly before them and imagine what was

going through the minds of the victims during the murders. The details in the

argument were summations and reasonable deductions from the evidence, most

of which came from appellant’s statement to the police. While the trial court did

not take any curative measures, this was because the judge overruled the

appellant’s objection. Finally, the evidence of appellant’s guilt was overwhelming.

Appellant gave a voluntary statement to the police in which he confessed to the

murders. Appellant did not present any evidence during the guilt-innocence

phase of the trial and, in fact, conceded guilt during his closing argument.

Furthermore, witness testimony corroborated appellant’s confession, as did the

forensic evidence establishing the cause of death of both victims. Based on the

112 evidence presented, the jury most certainly would have convicted appellant

regardless of the prosecutor’s statements. Thus, any error in the prosecutor’s

argument did not affect appellant’s substantial rights. See Brown, 270 S.W.3d at

572; Tex. R. App. P. 44.2(b).

Based on the foregoing, Issue 27 is without merit and should be overruled.

Closing Argument at Punishment

In Issue 41, appellant contends that the trial court erred in overruling his

objection to the State’s closing argument during the punishment phase of trial.

During closing argument at the punishment phase, defense counsel made

the following argument:

MR. JOHSNON: The evidence in this case from Kametra, this history of domestic violence, folks, all I can tell you is that, by all accounts, we’ve got a situation where now Kametra comes in and I agree with what was said earlier, she hates the Defendant for what he did, and reasonably so. And unlike what she told us when I met with her and my consultants, now the violence has escalated, it is more of it.

You know, that’s what happens in courtrooms, folks. What we really know is that about the time when Rasool is locked up for that incident with his sister, we know that she is running around on him, and she is writing him letters, and then we know that then while he is still incarcerated, she gets caught for leaving her kids locked up in a car outside while she is off galavanting, and we know now that she ran off and she is now this sophisticated prostitute. And think about this, folks. And like I said, Kametra is not on trial. But they are wanting you to think that she is only this victim because it fits well 113 into their theory, but she has told you, folks, that she is out there and she is running around with a guy twice her age. She has got the wherewithal to start running the internet prostitution scheme. She said it is her idea. She has got a $3,000 a month drug habit. $3,000 a month. And she tells you she had no way to get away from the Defendant.

(RR50: 72-73). In rebuttal, the State made the following complained-of argument:

MS. KEMP: Now, I asked Kametra. Do you know who Maya Angelou is? You all know who she is, Poet Laureate. You know Maya Angelou was raped when she was --

MR. JOHNSON: Judge, I'm going to object. We're outside the record.

MS. KEMP: This is argument.

MR. JOHNSON: I know. We're still arguing the record.

MS. KEMP: Maya Angelou was raped when she was 8 years old.

MR. JOHNSON: Judge, I'm going to ask for a ruling on my objection.

THE COURT: I didn't hear an objection. Sorry.

MR. JOHNSON: I objected. I said, we’re outside of the record.

THE COURT: Okay. I will overrule the objection.

MS. KEMP: Maya Angelou had a child when she was 17 years old. Maya Angelou was a full-grown madam, running a brothel.

MR. JOHNSON: Judge, I'm going to ask for an opportunity to reopen my argument and start talking about things than there is no evidence also, if we're going to allow this.

114 THE COURT: All right.

MS. KEMP: Kametra --

THE COURT: That’s denied. Go ahead.

MR. JOHNSON: I'm going to object to the argument that’s continued to admission of evidence not before this jury.

THE COURT: This is argument.

MS. KEMP: This is argument, sir.

MR. JOHNSON: I understand, Judge. She can’t argue the life history of people.

THE COURT: Argue the evidence and the law.

MS. KEMP: This is evidence. You have a young lady who was raped when she was 8. She had a child when she was 17. She decided to be a prostitute rather than be with Mr. Muhammad, to provide for her kids. One way or another, he is no longer in her life, and like Maya Angelo, she can go on and be anything she wants to, if she decides.

(RR50: 84-86).

On appeal, appellant argues that the remarks about Maya Angelou’s life

history were outside of the record and therefore, impermissible. Appellant

contends that the statements were calculated to inflame the minds of the jury

115 and prejudice the appellant such that the jury would be certain to return a verdict

of death.

The trial court did not err by overruling appellant’s objection

The record reflects that the trial court properly overruled appellant’s

objection because the argument was made in response to the argument of

defense counsel and also constituted a summation and reasonable deduction

from the evidence.

During his closing argument, defense counsel attacked the credibility and

character of State’s witness Kametra Sampson, stating that the instances of

domestic violence she testified to had “escalated” from those that she had

described to defense counsel in a previous meeting. Counsel described Kametra

as a “sophisticated prostitute” running an “internet prostitution scheme” with a

$3,000 a month drug habit, and that she was only being presented as a victim

because it fit the State’s theory. (RR50: 72-73). The State’s argument challenged

this characterization of Kametra by comparing her to another reputable and well-

known woman with a similar background. The State’s comparison was based on

Kametra’s testimony and reasonable deductions from that testimony.

116 The testimony presented at trial revealed that Kametra was raped by her

mother’s boyfriend when she was eight years old. She began a sexual relationship

with the appellant when she was just fifteen and appellant was twenty-five.

Kametra had her first child when she was seventeen and had two more children in

the next few years. Kametra testified that she endured violent beatings at the

hands of the appellant throughout their relationship, and eventually resorted to

prostitution in order to provide for herself and her children so that she did not

have to remain in an abusive relationship with the appellant. Kametra also

admitted to an expensive drug habit. However, she also testified that she was no

longer a prostitute and had sought treatment for her drug addiction in order to

improve her life.

Accordingly, the prosecutor appropriately analogized Kametra’s life to

Maya Angelou. It was a reasonable deduction from the evidence that Kametra,

like Angelou, could change her life. While appellant is correct that there was no

evidence before the jury specifically concerning Maya Angelou’s life, Angelou is a

public figure whose life history is common knowledge. Arguing facts that

are common knowledge is an exception to the prohibition against arguing facts

outside the record. See Nenno v. State, 970 S.W.2d 549, 559 (Tex. Crim. App.

117 1998), overruled on other grounds by State v. Terrazas, 4 S.W.3d 720 (Tex. Crim.

App. 1999); Carter v. State, 614 S.W.2d 821, 823 (Tex. Crim. App. [Panel Op.]

1981). Therefore, the trial court did not err in overruling appellant’s objection.

Even if this Court were to find that the State’s argument was improper, any

error was harmless. As previously noted, improper jury argument is non-

constitutional error that must be disregarded unless it affects the defendant’s

substantial rights. Brown, 270 S.W.3d at 572; Tex. R. App. P. 44.2(b).

Viewing the State's closing argument as a whole, it cannot be concluded

that there was a willful and calculated effort to deprive appellant of a fair and

impartial trial. The prosecutor’s remarks were made in response to defense

counsel’s argument and were summations and reasonable deductions from the

evidence. It is clear that the prosecutor did not have an improper motive. While

the trial court did not take any curative measures, the prosecutor’s reference to

Angelou was brief and only a small portion of the entire argument.

Furthermore, the evidence supporting the jury’s answer to the special

issues was overwhelming. In addition to the evidence showing the calculated and

deliberate nature of the heinous double-murder for which the jury had just found

118 appellant guilty, the State also presented considerable evidence during the

punishment phase showing appellant’s extensive juvenile record, his inability to

follow instructions or rules while confined as a juvenile or while awaiting trial for

capital murder, and his acts of violence against women. Accordingly, this Court

can be assured that the jury would have returned the same answer to the special

issues absent the prosecutor’s comment. Thus, any error in the prosecutor’s

argument did not affect appellant’s substantial rights. See Brown, 270 S.W.3d at

Based on the foregoing, Issue 41 is without merit and should be overruled.

Issue 28: Admission of Appellant’s Statements to CPS Worker

In Issue 28, appellant contends that the trial court erred in overruling his

objection to the testimony of CPS worker Pamela Womack. According to

appellant, it was improper for Womack to testify regarding statements made to

her by appellant while he was in custody where the State failed to show that he

was given the proper Miranda warnings. (Appellant’s Brief, 99-102).

Pertinent Facts

Womack serves as a Special Investigator for CPS, where she assists primary

case workers with their interviews and investigations. (RR46: 118-19). Womack

119 interviewed appellant and assisted in interviews with other members of

appellant’s family. (RR46: 119-20). Womack explained that she does these

interviews as part of the development of a social history for the primary case

worker’s file. (RR46: 120-21). CPS was conducting an investigation in this instance

because they were trying to determine the placement of appellant’s and

Kametra’s remaining child, Jeremiah. (RR46: 121).

Appellant objected to Womack testifying to any statements made by

appellant during the interview unless the State could establish he was given

Miranda warnings. (RR46: 122, 124-25). When taken on voir dire by defense

counsel, Womack made it clear that she did not speak with anyone in law

enforcement prior to her interview of appellant and that her interview was

conducted for CPS, not law enforcement. (RR46: 122-24). In response to

appellant’s objection and argument, the State reiterated that the purpose of the

CPS investigation in this case was to determine what to do with Jeremiah. (RR46:

125). The trial court overruled appellant’s objection. (RR46: 125).

A trial court’s decision to admit testimony of a CPS worker is reviewed for

an abuse of discretion and must be affirmed so long as the decision is within the

120 zone of reasonable disagreement. See Berry v. State, 233 S.W.3d 847, 856 (Tex.

Crim. App. 2007); Wilkerson v. State, 173 S.W.3d 521, 524 (Tex. Crim. App. 2005).

The Fifth Amendment provides that no person “shall be compelled in any

criminal case to be a witness against himself . . .” U.S. CONST. amend. V. As a

corollary to that provision, in Miranda v. Arizona, 384 U.S. 436 (1966), the United

States Supreme Court held that the State may not use any statements stemming

from custodial interrogation of the defendant unless it demonstrates the use of

procedural safeguards effective to secure the privilege against self-incrimination.

Id. at 444.

The procedural safeguards of Miranda, however, do not apply to all

custodial questioning. They generally apply only to custodial interrogation by law

enforcement officers or their agents. Wilkerson, 173 S.W.3d at 527. Although a

CPS worker is an employee of the state, state employment does not, by itself,

make a person a state agent for purposes of defining custodial interrogation. Id.

at 528. As the Wilkerson court explained:

Although state employment clearly makes a person an “agent of the State,” that label does not, by itself, make the person an “agent of the State” for the purpose of defining “custodial interrogation.” Not all government workers must be familiar with and ready to administer Miranda warnings . . . . *W+hen “the official has not been

121 given police powers, Miranda has been held inapplicable to questioning by *state officials+.”

Id. at 528. The court further observed that different types of state employees

serve different roles. Id. CPS workers are charged with protecting the welfare and

safety of children in the community while the police are responsible for

investigating crime. See id. Therefore, police officers and CPS workers generally

run on separate, yet parallel paths. Id. at 529. CPS’s role may be converted if its

parallel path converges with police, and the organizations are investigating a

criminal offense in tandem. Id.

To determine whether the two paths have converged, courts must examine

the entire record. Id. at 530. The thrust of the inquiry is whether the custodial

interview was conducted explicitly or implicitly on behalf of the police for the

purpose of gathering evidence or statements to be used in a later criminal

proceeding against the interviewee. Id. at 531. The defendant bears the burden of

proving that a particular person is working in tandem with police in a joint

investigation, primarily because the law does not presume such a relationship. Id.

at 529-30, 32.

122 Womack’s Testimony Was Properly Admitted

Appellant has failed to meet that burden in this case. Womack’s testimony

unequivocally showed that she did not interview appellant at the behest of law

enforcement. She was not gathering information to be used in a later criminal

proceeding. Rather, her primary purpose in interviewing appellant was to

determine the future care of the surviving child. (RR46: 120-21, 125, 130-31).

Regardless of the outcome of appellant’s criminal case, it is not surprising that

that CPS would need to collect data to determine the best interests of the child

following the tragedy. See Wilkerson, 173 S.W.3d at 530. Having that limited

purpose does not somehow magically connect Womack with the police

investigation of appellant’s case.

Womack was not an agent of law enforcement who was required to comply

with Miranda. Therefore, the trial court did not abuse its discretion in overruling

appellant’s objection to Womack’s testimony. See, e.g, Berry, 233 S.W.3d at 856

(trial court did not abuse its discretion in admitting testimony of CPS worker;

because the CPS worker’s purpose in interviewing Berry was to find placement for

Berry’s children, she was not an agent of the law enforcement who was required

to comply with Miranda).

123 Any Error Harmless

Even if the court should have excluded Womack’s testimony, the admission

of this evidence did not violate appellant’s substantial rights. See Tex. R. App. P.

44.2(b). The statements made by appellant to Womack did not shed new light on

the offense or appellant’s feelings about his childhood or his relationship with

Kametra. Appellant generally denied having a bad childhood or any mental health

issues; and while he disclosed Kametra’s previous drug-usage and prostitution, he

did not claim she was an unfit mother or otherwise speak badly about her. Same

or similar testimony regarding appellant’s perception of his childhood, mental

health, and feelings toward Kametra was admitted without objection through

other witnesses. Moreover, counsel used cross-examination of Womack to show

that appellant became quite emotional on multiple occasions during the interview

when describing what had happened with the kids and the things that had gone

on in his life. Thus, any error in the admission of this testimony was harmless.

Issue 28 is without merit and should be overruled.

Issue 29: Admission of State’s Exhibit 173

In Issue 29, appellant contends that the trial court erred in overruling his

objection to State’s Exhibit 173, certified business records pertaining to

124 appellant’s prior conviction for evading arrest in cause number MB97-57574-K.

Appellant contends that because the judgment did not contain an identifying

fingerprint, the conviction was not properly tied to appellant and should not have

been admitted. (Appellant’s Brief, pp. 102-04).

On July 30, 1997, appellant committed two offenses as part of a continuous

criminal episode: burglary of a motor vehicle and evading arrest. He was charged

with these offenses in cause numbers MA97-57573-K and MB97-57574-K. On

September 19, 1997, appellant pleaded guilty to both offenses and was sentenced

to 120 days confinement, probated for twelve months in each case. (State’s

Exhibits 172-73). Subsequently, his community supervision was revoked and he

was sentenced to 120 days’ confinement in each case.4 (State’s Exhibit 173).

During the punishment phase of trial, the State offered exhibits 172 and

173, certified copies of the judgments and other business records pertaining to

4 The State’s electronic records reflect that appellant’s community supervision was revoked in both cases on March 31, 1998. The State received a certified copy of the Judgment Revoking Community Supervision from the county clerk in the burglary case (State’s Exhibit 172); however, the State did not receive a certified copy of the Judgment Revoking Community Supervision from the county clerk in the evading arrest case for an unknown reason. (State’s Exhibits 173). 125 these convictions. (RR44: 106-07, 109; State’s Exhibits 172-73). Exhibit 172

contained a fingerprint which was matched to the fingerprint of appellant taken

that day. (RR44: 100-01, 103-04; State’s Exhibits 169, 172). Exhibit 173 contained

no fingerprint for comparison. (RR44: 100-01, 103, 106). The State presented

testimony that exhibits 172 and 173 pertained to offenses with consecutive cause

numbers, contained matching identifying information of appellant, and reflected

that appellant pleaded guilty and was adjudicated guilty of these offenses on the

same day. (RR44: 106). Appellant did not object to exhibit 172. (RR44: 106). He

objected to exhibit 173 on the basis that there was lack of a predicate and failure

to establish correlation between the exhibit and the appellant. (RR44: 106).

Appellant’s objection was overruled. (RR44:106).

To establish a defendant’s prior criminal conviction, the State must prove

beyond a reasonable doubt the following: (1) that a prior conviction exists, and (2)

that the defendant is linked to that conviction. See Flowers v. State, 220 S.W.3d

919, 921 (Tex. Crim. App. 2007). Texas law does not require that the prior

conviction be proven in any specific manner. Id. at 922. Any type of evidence,

documentary or testimonial, might suffice. Id.

126 Often the proof that is adduced to show the defendant on trial is one and

the same person that is named in the prior criminal conviction “closely resembles

a jigsaw puzzle” where the pieces standing alone usually have little meaning but,

when fitted together, form the picture of the person who committed the prior

conviction. Id. at 923 (citing Human v. State, 749 S.W.2d 832, 835-36 (Tex. Crim.

App. 1988). The trier of fact fits the pieces together and weighs the credibility of

each piece. Id. It looks at the totality of the evidence admitted to determine if

there was a prior conviction and if the defendant was the person convicted. Id.

The Trial Court Did Not Abuse its Discretion by Admitting State’s Exhibit 173

State’s Exhibit 173, when considered in conjunction with State’s Exhibit

172, was sufficient to prove appellant’s 1997 conviction for evading arrest.

Exhibits 172 and 173 show that the offenses of burglary of a vehicle and

evading arrest were committed on the same date, July 30, 1997. They were filed

under the same service number, 640854F, and same arrest number, 052103. They

contain the same identifying information for appellant, including his full name as

Naim Muhammad; physical description of “BM;” birthdate of 05-03-79; address of

3326 Kyser, Dallas, Texas 75216; and phone number of 214-374-0141. The

signature of “Naim Muhammad” contained on the court’s admonishments and 127 order appointing counsel in each case is the same. Finally, the “Judgment on

Negotiated Plea of Guilty or Nolo Contendere Before Judge Community

Supervision Granted” in each case reflects that appellant pleaded guilty and was

adjudicated of both offenses on the same date, September 19, 1997. (State’s

Exhibits 172-73). Viewing the totality of the evidence, the trier of fact could have

reasonably determined that there was a prior conviction for evading arrest and

that appellant was the person convicted. See Flowers, 220 S.W.3d at 923.

Accordingly, the trial court did not abuse its discretion by overruling appellant’s

objection to State’s Exhibit 173.

Any Error Harmless

Even if this Court were to find error in the trial court’s ruling, the admission

of this evidence did not violate appellant’s substantial rights. See Tex. R. App. P.

44.2(b). Exhibit 173 was one of seven prior convictions, the rest of which were

unquestionably proven by documentary and testimonial evidence. The State

proved that appellant committed numerous extraneous unadjudicated offenses

during his twenty-year history of criminal activity. The State presented evidence

of appellant’s repeated infractions while in Daytop, TYC and Dallas County Jail,

and his violence toward women. The jury also had before it the heinous facts of

128 the capital murder. In viewing the entire record as a whole, it is highly unlikely

that the inclusion of exhibit 173 influenced the outcome of the trial. Accordingly,

any error in the admission of this exhibit was harmless.

Issue 29 is without merit and should be overruled.

Issues 30-32: Admission of Testimony from Refreshed Memory

In Issues 30-32, appellant contends that the trial court erred in overruling

his objections to the testimony of police officers who used police reports to

refresh their memory. He contends that State allowed its witnesses to testify from

documents not in evidence under the guise of refreshing their recollection in

order to get in evidence that was otherwise not admissible. (See App. BR. at 105-

07). His contentions are wholly without merit.

Texas evidentiary rules allow a witness in a criminal case to refresh his or

her memory either while testifying or before testifying. Tex. R. Evid. 612. A police

officer may review written reports to refresh his or her memory, then testify from

a “refreshed memory.” McCoy v. State, 877 S.W.2d 844, 845 (Tex. App.—Eastland

1994, no pet.). As long as the witness had personal knowledge at some time in the

past and that memory has been refreshed by review of the writing, the testimony

129 itself is received as substantive evidence. See Young v. State, 891 S.W.2d 945, 951

(Tex. Crim. App. 1994). Further, a writing need not be prepared by the person

who is having their memory refreshed, but rather, the focus should be that the

person testifying has their own personal recollection refreshed. See id.

Officer Chris Havens

According to appellant’s brief, the complaints raised in issues 30 and 31

pertain to the testimony of Officer Chris Havens. (See App. Br. at 105). However,

the portions of the record he cites pertain to the testimony of Officer Harold

Andrews. To the extent that his record citation is a typographical error and his

claims do relate to the testimony of Chris Havens, the record shows they are

wholly without merit.

Former Dallas Police Officer Chris Havens was the officer who arrested

appellant following his burglary of the habitation of Ivis Wright. Wright sold candy

to kids in her neighborhood. (RR44: 131). Prior to testifying, Officer Havens

reviewed the police report and recalled the incident because of the candy that

was stolen during the burglary. (RR44: 125, 131). Officer Havens testified that he

responded to a call reporting a burglary on February 26, 1993. (RR44: 124-25).

After a witness at the scene identified a group of juveniles nearby as the

130 perpetrators of the burglary, Officer Havens and other officers pursued them in a

foot chase, eventually catching them and taking them into custody. (RR44: 125-

26). When Officer Havens was asked whether he could identify the individual that

he arrested and booked-in on that date, he responded, “According to the arrest

report, yes, ma’am.” (RR44: 126). Appellant objected to Officer Havens testifying

to details he did not have personal knowledge of. (RR44: 126-27). His objection

was overruled. (RR44: 126). The State rephrased its question and Officer Havens

testified that, based on his refreshed recollection from the police report, Naim

Rasool Muhammad was the individual he arrested and booked-in on that date.

(RR44: 127).

Appellant did not object at trial on the basis that Officer Havens was

testifying from a record not in evidence and offering personal information after

using a document he did not prepare to refresh his memory. As such, his

complaints have not been preserved for review. See Tex. R. App. P. 33.1(a).

In any event, the record shows that Officer Havens did not testify from a

document. Rather, he properly refreshed his memory using his report. Based on

this refreshed memory, he was able to recall that Naim Rasool Muhammad was

the individual he arrested and booked-in for burglary on the date in question. The

131 trial court did not err in allowing Officer Havens to testify from his refreshed

memory. See Young, 891 S.W.2d at 951.

Officer Harold Andrews

To the extent that appellant’s record citations are correct and the

complaints raised in issues 30 and 31 pertain to the cited testimony of Officer

Harold Andrews, these contentions are also without merit.

Dallas Police Lieutenant Harold Andrews was the officer who detained

appellant for burglary of a vehicle on July 27, 1994. (RR44: 140-41). Lt. Andrews

was driving around the area where the burglary occurred and spotted appellant,

who matched the description of one of the suspects. (RR44: 142). Lt. Andrews

detained appellant and brought him back to the scene of the burglary, where he

was identified by the complainant as one of the perpetrators. (RR44: 142-43). Lt.

Andrews testified that it was standard procedure for him to gather personal

information from appellant at the time he detained him. (RR44: 146, 148-49, 150-

51). He relayed that information to another officer at the scene, who compiled

the information from all the officers involved and made a single report of the

incident. (RR44: 142-43, 154).

132 Lt. Andrews reviewed this report prior to testifying to refresh his memory

of the incident. (RR44: 141, 145). He was also asked to review this report during

his testimony to refresh his recollection of appellant’s full name and date of birth.

(RR44: 144). Appellant objected to Lt. Andrews testifying from a report not in

evidence and to him refreshing his memory from a document he did not prepare.

(RR44: 144, 148-49, 151-52). The trial court overruled his objections and allowed

Lt. Andrews to refresh his memory. (RR44: 144-45). After refreshing his memory,

Lt. Andrews testified that the person he detained that day was named Naim

Muhammad with a birthdate of May 3, 1979. (RR44: 152-53).

The record demonstrates that Lt. Andrews did not read from a document

not in evidence, as appellant claims. Rather, he properly used the police report to

refresh his memory of the incident. After refreshing his memory, Lt. Andrews

stated appellant’s name and date of birth from memory. Lt. Andrews established

how he would have had personal knowledge of appellant’s identity by referencing

to the standard procedures that he habitually follows. (RR44: 146, 148, 150). The

fact that Lt. Andrews did not prepare the report in its entirety is irrelevant; what

matters is that his memory was, in fact, refreshed. See Young, 891 S.W.2d at 951.

133 The trial court properly overruled appellant’s objections and allowed Lt. Andrews

to testify from his refreshed memory.

Based on the foregoing, Issues 30 and 31 are without merit and should be

overruled.

Officer Brandon Hernandez

In Issue 32, appellant complains about the testimony of Garland Police

Officer Brandon Hernandez. Officer Hernandez arrested appellant on July 4, 1999.

Officer Hernandez reviewed his report and refreshed his memory of the incident

prior to testifying. (RR45: 61, 71). Officer Hernandez testified that he and his

partner performed a felony stop of a vehicle that fled the scene of a burglary.

(RR45: 60-65). There were three passengers in the vehicle, one of whom was

appellant. (RR45: 67). The officers obtained the passengers’ identifying

information and entered that information into the police computer to check for

outstanding warrants. (RR45: 67). Although Officer Hernandez could not recall

offhand whose information he obtained or which officer ran the information

through the police system, he testified that they were able to confirm appellant’s

identity in their system and confirm that he had outstanding warrants. (RR45: 67-

69). Appellant objected to this testimony on the basis that Officer Hernandez did

134 not have personal knowledge of the facts he was testifying to. (RR45: 69). The

objection was overruled. (RR45: 69).

The record reflects that Officer Hernandez was the author of the report and

collected the information found in the report documenting appellant’s arrest on

July 4, 1999. He was there for the duration of the detention and arrest and

compiled information regarding all three suspects. The personal knowledge

Hernandez gained during the investigation was incorporated into his report,

which Hernandez used to refresh his memory for testimony. See, e.g., McCoy, 877

S.W.2d at 844. Officer Hernandez did not read from the report, but simply used

the report to refresh his memory of the incident. The trial court did not err in

allowing him to testify from his refreshed memory. See Young, 891 S.W.2d at 951.

Issue 32 is without merit and should be overruled.

Issues 33 and 37: Testimony of Officer David Solomon

In Issues 33 and 37, appellant contends that the trial court erred in

overruling his objection to the testimony of Officer David Solomon regarding an

arrest of appellant. He argues that allowing the officer to testify that appellant

was pulled over for suspicion of being involved in an attempted auto theft, when

135 he was later cleared of any involvement, was not relevant and highly prejudicial.

(Appellant’s Brief, pp. 108-10, 116-18).

Dallas Police Officer David Solomon arrested appellant on October 4, 1993.

(RR45: 83, 87). Early that morning, the police pulled over a vehicle matching the

description of a vehicle involved in an attempted auto theft. (RR45: 84-86, 126-

27). There were multiple passengers in the vehicle, including appellant; the

officers obtained personal information from all the passengers. (RR45: 88, 127-

28). The officers determined that appellant and the other passengers were not

involved in the attempted auto theft. (RR45: 99, 103, 129-30). Appellant,

however, was arrested for two outstanding warrants for burglary of a habitation.

(RR45: 88-89, 128-30). One of those warrants was for the burglary of Ivis Wright,

the woman who sold candy in the neighborhood. (RR45: 97-98, 100).

Appellant objected to Officer Solomon being allowed to testify that

appellant was pulled over because the vehicle was suspected of being involved in

an attempted auto theft when the passengers were later cleared of any

involvement in that offense. Appellant argued that the reason for the stop was

irrelevant and prejudicial. (RR45: 100, 104-05, 124). The trial court ruled that

Officer Solomon could testify about how appellant came to be pulled over by

136 police, so long as the State made clear that he was cleared of any involvement in

the attempted auto theft. (RR45: 100-01). The State complied with the Court’s

ruling. (RR45: 129). Counsel also elicited this information on cross-examination.

(RR45: 130).

Relevant evidence means evidence having any tendency to make the

existence of any fact that is of consequence to the determination of the action

more probable or less probable than it would be without the evidence. Tex. R.

Evid. 401. Rule 403 favors the admission of relevant evidence and carries a

presumption that relevant evidence will be more probative than prejudicial.

Williams, 958 S.W.2d at 196.

Officer Solomon’s testimony was not introduced for the purpose of proving

any crime related to the attempted auto theft, but rather to show appellant’s

arrest for the burglary of Ms. Wright’s home. Although Ms. Wright had previously

testified about the circumstances of the burglary, she testified that she did not

know who had committed the offense. (RR44: 119-27). And while appellant was

identified as one of the suspected perpetrators by Officer Havens, there was no

further evidence before the jury regarding any further disposition of the case.

Officer Solomon’s testimony demonstrated that appellant was charged and

137 arrested for that offense. Officer Solomon’s explanation for the stop was relevant

to show how and why he came into contact with appellant on October 4, 1993,

since he had no involvement in the investigation of the burglary offense. Without

this explanation, his testimony regarding appellant’s arrest would be incomplete

and confusing.

Furthermore, appellant cannot show harm. Officer Solomon made clear

during his testimony before the jury that appellant was cleared of any

involvement in the attempted auto theft. (RR45: 129, 130).

Based on the foregoing, the trial court did not abuse its discretion in

overruling appellant’s objection to the testimony of Officer Solomon. Issue 33 is

without merit and should be overruled.

Issue 34: Testimony of Warden Melodye Nelson

In Issue 34, appellant contends that the trial court erred in overruling his

objection to Warden Nelson’s anecdotal testimony about weapons produced in

prison by other inmates. He claims that this evidence was not relevant and was

prejudicial to him because he had no connection to the weapons presented.

(Appellant’s Brief, pp. 110-11).

138 Rule 702 of the Texas Rules of Evidence provides:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.

Tex. R. Evid. 702. The proponent of evidence under Rule 702 must show, by clear

and convincing proof, that the evidence is sufficiently relevant and reliable to

assist the jury in accurately understanding other evidence or in determining a fact

in issue. See Gallo, 239 S.W.3d at 765. A trial court’s decision to admit or exclude

expert testimony is reviewed under an abuse of discretion standard. Id.

Warden Nelson was qualified as an expert by virtue of her knowledge and

experience in the Texas prison system. Her testimony was relevant to helping the

jury determine Special Issue No. 1, whether appellant would commit criminal acts

of violence that would constitute a continuing threat to society. It is well settled

that “society” includes the prison population. See Estrada v. State, 313 S.W.3d

274, 281 (Tex. Crim. App. 2010). Warden Nelson’s testimony described for the

jury what appellant’s life would be like if he were sentenced to life in prison and

his society became prison society. Prison society is not something within a juror’s

common knowledge. Warden Nelson testified regarding staffing, classification,

139 housing, daily routine, discipline and the potential for violence within Texas

prisons. She did not specifically testify that appellant would be more or less likely

to commit violent acts in prison, only that there is a potential for violence in all

classification levels of the prison system. Warden Nelson showed weapons that

were found and confiscated in prison over the years in an effort to illustrate her

testimony for the jury. The trial court did not abuse its discretion in admitting this

evidence. See Threadgill v. State, 146 S.W.3d 654, 670-671 (Tex. Crim. App. 2004)

(finding no abuse of discretion in trial court’s admission of photographs of

weapons made in prison which were used by a prison expert to illustrate his

testimony regarding inmate violence within various classifications of prison

society).

Even if the trial court erred in admitting Nelson’s testimony, any alleged

error was harmless. See Tex. R. App. P. 44.2(b). Warden Nelson’s testimony was

offered by the State in rebuttal during the punishment phase. The jury had

already seen and heard evidence regarding the instant capital murder. The jury

had already heard about appellant’s lengthy history of criminal activity, his

numerous violations while on probation, his failure to obey orders while

incarcerated, his anger issues, and his violence toward women, including his own

140 sister. Furthermore, the prejudicial effect of Warden Nelson’s testimony was

minimized by its general nature. It was neither graphic nor disturbing in content.

That fact, in conjunction with the admission of other more compelling

punishment evidence by the State, rendered harmless any error in the admission

of Warden Nelson’s testimony. Issue 34 is without merit and should be overruled.

Issue 35: Denial of Hearing on Extraneous Offenses and Bad Acts

In Issue 35, appellant contends that the trial court erred in denying his

request to hold a hearing outside the presence of the jury on the admissibility of

any extraneous offense evidence the State planned to offer during the

punishment phase of trial. (Appellant’s Brief, pp. 112-14).

Appellant filed a pretrial motion requesting that the trial court hold a

hearing and make a threshold determination as to the admissibility of every

extraneous offense or bad act the State planned to present during the

punishment phase. (CR2: 273-78). Appellant’s motion also requested that (1) the

trial court give an oral instruction at the conclusion of the admission of each

extraneous offense that it is not be considered unless proven beyond a

reasonable doubt, and (2) a reasonable doubt instruction with respect to all

141 extraneous offenses admitted at punishment be included in the jury charge at

punishment. (CR2: 273-78).

These motions were discussed at a pretrial hearing, but no ruling was

made. Defense counsel argued that the “heart” of his motion was a concern that

the State would attempt to prove extraneous offenses through the use of

business records. (RR42: 46-48). The State responded that it intended to present

all extraneous offense evidence through live witnesses who could testify about

what happened and that it was appellant who did it. (RR42: 46-47, 50).

Appellant re-urged this motion during the punishment phase. (RR44: 42-53,

133-39). The State responded that it had turned over an exhaustive 404(b) notice

to appellant and that it would only be presenting extraneous offenses that it had

a good faith belief could be proven in accordance with the law. (RR44: 42-43).

Appellant’s requests for a hearing on each extraneous offense and an oral

instruction following the admission of each extraneous offense were denied, but

his request for a written instruction in the jury charge was granted. (RR44: 48-55).

The trial court later granted appellant’s request for an oral instruction, which was

given to the jury during the presentation of the State’s extraneous offense

evidence. (RR45: 41-42).

142 Applicable Law

Pursuant to Article 37.071 of the Code of Criminal Procedure, a trial court

has wide discretion in admitting evidence, including extraneous offenses, relevant

to the jury’s determination of a capital murder defendant’s death-worthiness. See

Tex. Code Crim. Proc. Ann. art. 37.071, § 2(a)(1) (West Supp. 2014); Powell v.

State, 898 S.W.2d 821, 830 (Tex. Crim. App. 1994). Extraneous offenses are

admissible whether adjudicated or unadjudicated, violent or nonviolent. Kemp v.

State, 846 S.W.2d 289, 307 (Tex. Crim. App. 1992).

When offering an extraneous offense at the punishment phase of a capital

trial, the State neither has to prove all of the elements of the extraneous offense,

nor prove beyond a reasonable doubt that the defendant committed the

extraneous offense. See Adanandus v. State, 866 S.W.2d 210, 234 (Tex. Crim. App.

1993); Spence v. State, 795 S.W.2d 743, 759 (Tex. Crim. App. 1990). Rather, the

State must “clearly prove” that an offense was committed and that the accused

was the perpetrator. Young, 283 S.W.3d at 876.

143 Applicability of Mitchell v. State

In his brief, appellant cites Mitchell v. State, 931 S.W.2d 950 (Tex. Crim.

App. 1996), in support of his argument that he was entitled to a hearing to

determine the admissibility of extraneous offense evidence. In Mitchell, this Court

held that the trial court has the responsibility of determining the threshold

admissibility of extraneous offense evidence at the punishment phase of a non-

capital trial; that is, the court must make an initial determination at the proffer of

the evidence that the evidence is relevant and that a jury could reasonably find

beyond a reasonable doubt that the defendant committed the extraneous

offense. See Mitchell, 931 S.W.2d at 954. The Court also held that, if requested,

the defendant is entitled to a limiting instruction that informs the jury that

extraneous offenses offered during the punishment phase must not be

considered unless they are proven beyond a reasonable doubt. Id. at 954.

Mitchell was a non-capital case and was based on the language in Article

37.07. Capital cases, however, are governed by Article 37.071. This article clearly

imbues the trial judge with wide discretion to admit any evidence relevant to the

jury’s determination of a capital defendant’s deathworthiness, including evidence

of adjudicated and unadjudicated extraneous offenses, so long as the State can

144 sufficiently connect the appellant to the alleged extraneous offense. See Kemp,

846 S.W.2d at 307. There is no requirement that they be proven beyond a

reasonable doubt or that the trial court give any additional instructions on the

burden of proof beyond what is already included in the instructions on the special

issues. See Jackson v. State, 992 S.W.2d 469, 477 (Tex. Crim. App. 1999). As such,

Mitchell is inapplicable. See id.; see also Prystash v. State, 3 S.W.3d 522, 533 (Tex.

Crim. App. 1999) (finding Mitchell “inapplicable to the capital sentencing

structure” in addressing appellant’s complaint regarding the trial court’s refusal to

give separate jury instruction on burden of proof of extraneous offenses).

Appellant Has Not Shown an Abuse of Discretion or Harm

In any event, the trial court did not abuse its discretion in denying

appellant’s request. Even if appellant was entitled to a threshold determination of

admissibility under the rules of evidence, he was not necessarily entitled to

hearing on each separate extraneous offense. See Tex. R. Evid. 104. There is no

set method the court must use to make this threshold determination; it could

base the decision on an assessment of testimony and argument made at a hearing

outside the presence of the jury, an evaluation of a written proffer by the State,

or some other method. See Arzaga v. State, 86 S.W.3d 767, 781 (Tex. App.—El

145 Paso 2002, no pet.); Mann v. State, 13 S.W.3d 89, 94 (Tex. App.—Austin 2000),

aff'd, 58 S.W.3d 132, (Tex. Crim. App. 2001); Welch v. State, 993 S.W.2d 690 (Tex.

App.—San Antonio 1999, no pet.).

Here, the State filed a detailed, chronological 404(b) notice outlining the

various extraneous offenses committed by appellant. Outside the presence of the

jury, the State made an oral proffer to the trial court that it planned to prove

extraneous offenses through live witnesses who could testify about what

happened and show that appellant was the perpetrator. (RR42: 46, 50; RR44: 44).

The State also assured the trial court that it had no intention of offering evidence

of an extraneous offense that it did not have a good faith belief it could prove in

accordance with the law. (RR44: 42). While the trial court made no express ruling

on the admissibility of the extraneous offenses prior to trial, its denial of

appellant’s request for a hearing following the State’s proffer constitutes an

implied ruling of admissibility. See Mann, 13 S.W.3d at 94.

Further, any error in the trial court’s failure to hold a hearing was harmless.

With regard to each extraneous offense presented at punishment, which are

outlined in detail in the State’s Summary of Facts (Infra pp. 11-26), the State

146 provided clear proof that an offense occurred and that appellant was the

perpetrator. See Young, 283 S.W.3d at 876.

In addition, the trial court gave both an oral and written instruction to the

jury that they were not to consider extraneous offenses for any purpose unless

they found and believed beyond a reasonable doubt that appellant committed

the offenses, if any were committed, and even then they could only consider

them in determining their answers to the special issues. (RR45: 41-42; CR2: 406).

The jury is presumed to have followed this instruction and disregarded any

offenses they did not believe were proven beyond a reasonable doubt. See

Gamboa v. State, 296 S.W.3d 574, 580 (Tex. Crim. App. 2009) (noting jury

presumed to follow the judge’s instructions). This extra safeguard, which was not

required but operated to appellant’s benefit, rendered any error in the trial

court’s failure to hold a hearing harmless.

Appellant wholly fails to show how he was harmed by the trial court’s

ruling. All of the extraneous offenses presented were relevant to the jury’s

determination of appellant’s deathworthiness. See Powell, 898 S.W.2d at 830;

Kemp, 846 S.W.2d at 307. Appellant does not argue that he did not commit the

extraneous offenses presented. He also makes no attempt to explain for the Court

147 which, if any, extraneous offenses would have been excluded by the court if the

requested hearing had been held. Appellant argues that if the trial court had

acknowledged his request for a threshold hearing, Issues 42, 43 and 44 raised in

his brief would have been prevented. (Appellant’s Brief, p. 113). However, these

issues do not pertain to the admission of extraneous offense evidence. In Issue

42, appellant challenges the sufficiency of the evidence supporting the jury’s

answer to the future-dangerousness special issue; and Issues 43 and 44 are

constitutional challenges to Texas’ death penalty statute. Based on the foregoing,

Issue 35 is without merit and should be overruled.

Issue 36: Denial of Motion for Mistrial

In Issue 36, appellant contends that the trial court erred in overruling his

motion for a mistrial. (Appellant’s Brief, pp. 114-16).

Dallas Police Officer Ryan Swain testified that he responded to a suspicious

person call on July 18, 2010. (RR45: 73-74). Before he could elaborate further,

appellant requested a bench conference, where he notified the State and the trial

court that he did not have notice of the incident Officer Swain was about to offer

testimony on. (RR45: 75). The trial court removed the jury and appellant objected

148 to Officer Swain’s testimony on the basis that he was not provided notice by the

State. (RR45: 75-76). The prosecutors, realizing that the offense had been

mistakenly omitted from the State’s Notice of Extraneous Offenses, notified the

Court that it would not present any further testimony from Officer Swain. (RR45:

76).

Counsel stated that the absence of any further testimony would invite the

jury to speculate and he requested that an instruction to disregard the testimony

be given. (RR45: 78). The trial court granted appellant’s request. (RR45: 78-79).

Appellant expressed his concerns that a curative instruction was inadequate and

also moved for a mistrial. (RR45: 79). That request was denied. (RR45: 79-80).

When the jury was returned to the courtroom, the trial court orally instructed

them to “disregard any testimony that was offered by Officer Swain, the last

witness that the State presented to you.” (RR45: 81). Appellant moved for a

mistrial in the presence of the jury and his request was denied. (RR45: 81). In the

punishment charge, the jurors were further instructed: “During your deliberations

upon the special issues, you must not consider, discuss, nor relate any matters

not in evidence before you.” (CR2: 405).

149 Applicable Law

A mistrial is the trial court’s remedy for improper conduct that is so

prejudicial that expenditure of further time and expense would be wasteful and

futile. Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004). Only in extreme

circumstances, where the prejudice is incurable, will a mistrial be required. Id.

When the trial court sustains an objection and grants an instruction to disregard,

but denies a motion for mistrial, the proper issue is whether the trial court abused

its discretion by denying the motion for mistrial. Id.

In determining whether the trial court abused its discretion in denying the

mistrial, an appellate court considers the following factors: (1) severity of the

misconduct (the magnitude of the prejudicial effect); (2) measures adopted to

cure the misconduct (the efficacy of any cautionary instruction by the judge); and

(3) the certainty of conviction absent the misconduct (the strength of the

evidence supporting the conviction). Mosley v. State, 983 S.W.2d 249, 259 (Tex.

Crim. App. 1998).

The Trial Court Did Not Abuse Its Discretion by Denying Appellant’s Motion for Mistrial

Here, Officer Swain’s testimony is two pages from one volume of a 52-

volume record. He was cut off before he could offer any substantive, much less 150 prejudicial, testimony about his encounter with appellant. The State did not

present any further testimony from him after realizing the error in their notice.

Clearly, his testimony was not offered to inflame the jurors, nor was it of such a

character as to suggest the impossibility of withdrawing the impression left on the

jury. The trial court’s prompt instruction to disregard was sufficient to cure any

harm resulting from the impression left on the jury. This Court presumes the jury

followed the trial court’s instruction. See Gamboa, 296 S.W.3d at 580 (noting that

a reviewing court generally considers instructions given to the jury sufficient to

remedy most improprieties that occur during trial and presumes the jury will

follow the trial court’s instructions).

Given the strength of the evidence supporting the jury’s answers to the

special issues, the trial court’s prompt instruction to disregard, and the

inconsequential nature of the complained-of testimony, the trial court did not

abuse its discretion in denying appellant’s motion for mistrial. As such, Issue 36 is

Issues 38 and 39: Cross-Examination of Appellant’s Experts

In Issues 38 and 39, appellant contends that the trial court erred by

overruling his objections and permitting the State to cross-examine his experts,

151 Dr. Kellie Gray-Smith and Dr. Gilbert Martinez, on antisocial personality disorder.

He claims that the State’s cross-examination was an attempt to convert his

experts into State’s witnesses and elicit opinions on matters that were outside

their field of expertise. (Appellant’s Brief, pp. 118-21). Appellant’s contentions are

Texas Rule of Evidence 611(b) provides “a witness may be cross-examined

on any matter relevant to any issue in the case, including credibility.” Tex. R. Evid.

611(b). The scope of appropriate cross-examination is necessarily broad. Carroll v.

State, 916 S.W.2d 494, 497 (Tex. Crim. App. 1996). The parameters of cross-

examination are within the trial court’s discretion, 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); Chambers v. State, 866 S.W.2d 9, 27 (Tex.

Crim. App. 1993).

Issue 38: Dr. Kellie Gray-Smith

In Issue 38, appellant contends that the trial court erred in overruling his

objection to the State’s cross-examination of Dr. Kellie Gray-Smith, a psychologist

retained by the defense to provide expert testimony on special education and the

152 multi-cultural aspects of psychology. The cross-examination of which appellant

complains went as follows:

Q (MS. KEMP): And you are familiar with the criteria for antisocial personality disorder; is that correct?

A (DR. GRAY-SMITH): Yes.

Q: All right.

A: Yes, that’s correct. Yeah.

Q: So you know that they, typically, have a reckless disregard for the safety of others?

A: Yes. That can be part of the profile.

Q: And that they fail to conform to the norms?

MR. JOHNSON: Excuse me, Judge. I’m going to object. This is outside of the area that we brought in any testimony in regards -- and she is talking about -- if she is talking symptomology of ASPD, in general, that’s one thing, but now she is going to try to associate these symptom-ologies to a particular individual who this witness has not interviewed or examined, so I'm going to object to her stating a litany of the ASPD criteria and stating that they are all attributed to a particular person when she has not examined the person. You cannot attribute it to that person.

MR. HEALY: Judge, she has not examined the person, but she gave the opinion that he has antisocial personality disorder.

MR. JOHNSON: She has not given a diagnosis of that, Judge. There's a big difference. She is not allowed to sit there and say to somebody that she -- 153 THE COURT: I understand and I heard her testimony. I will overrule the objection. Go ahead.

(RR49: 76-77).

Appellant Failed to Preserve His Complaint for Review

To preserve a complaint for appellate review, a party must have presented

a specific and timely request, motion, or objection to the trial court and, further,

must have obtained a ruling. See Tex. R. App. P. 33.1(a); Broxton v. State, 909

S.W.2d 912, 918 (Tex. Crim. App. 1995); Burks v. State, 876 S.W.2d 877, 899 (Tex.

Crim. App. 1994); Turner v. State, 805 S.W.2d 423, 431 (Tex. Crim. App. 1991).

Because appellant failed to object to the prosecutor’s preceding question, which

asked Dr. Gray-Smith about one of the criteria or symptoms present in someone

with antisocial personality disorder, appellant’s objection was untimely and failed

to preserve the issue for review. Additionally, Dr. Gray-Smith had already

testified, without objection, that she was of the opinion that appellant had

antisocial personality disorder:

Q (MS. KEMP): And so as you conclude throughout your report here that Mr. Muhammad has antisocial personality disorder, you connected those dots on your own; is that correct?

154 Q: You are a licensed psychologist; is that correct?

A: Yes.

Q: And you are familiar with all behavioral disorders; is that correct?

A: That’s correct.

Q: So given a limited amount of information, you can make a diagnosis of antisocial personality disorder, could you not?

A: I would form an opinion. I don’t know if I would say it is a diagnosis, but I would form an opinion.

Q: Yeah, I think that’s more accurate. So any licensed psychologist with the appropriate training and behavioral and studies, which all licensed psychologists have, could form an opinion, even with the limited amount of records that you have; is that correct?

A: It’s possible.

(RR49: 58-59). Appellant also failed to object to the following exchange:

Q (MS. KEMP): You have an opinion that Mr. Muhammad is a sociopath, don't you?

A (DR. GRAY-SMITH): I have an opinion that his pattern of academic records and psychological records suggest that he has an antisocial personality disorder.

Q: Same as a sociopath?

A: Yes, in a generic sense.

Q: Okay. Thank you.

155 (RR49: 72). Accordingly, appellant has failed to preserve his complaint for review.

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

The Trial Court Did Not Abuse Its Discretion by Permitting the State’s Cross-Examination of Dr. Gray-Smith

Nevertheless, should this Court consider this issue, the record reflects that

the trial court properly overruled appellant’s objection. A witness may be cross-

examined on any issue relevant to the case. Tex. R. Evid. 611(b). Clearly, whether

appellant possesses the diagnostic criteria for antisocial personality disorder is

relevant to future danger and admissible in a capital murder trial. See Powell, 898

S.W.2d at 830 (trial court has wide discretion in admitting evidence any evidence

relevant to the jury’s determination of a capital murder defendant’s death-

worthiness). Additionally, here, this was certainly a relevant area of cross-

examination since it was raised by Dr. Gray-Smith’s testimony on direct

examination.

On direct examination, Dr. Gray-Smith testified that she had reviewed a

1994 psychological evaluation of the appellant, in which appellant was diagnosed

with conduct disorder. (RR49: 41, 55-57). Defense counsel then elicited the

following testimony:

156 Q (MR. JOHNSON): Doctor, do you -- when you have an individual that goes forward from the Oppositional Defiant Disorder and into the Conduct Disorder, if the behaviors never, actually, got ahold of or actually intervened and treated, is there a predictability as to where that person is going to end up?

A (DR. GRAY-SMITH): Yes. They usually end up being diagnosed with antisocial personality disorder, which is the adult form of conduct disorder.

....

Q: And as an expert here testifying today, would it surprise you, not that there has been a finding of this, but would it surprise you that the person whose records that you examined there would have gone from the point of ODD to conduct disorder to the symptom-ologies of antisocial personality behavior disorder?

A: Not at all. It would have been predictable.

(RR49: 43, 45-46). Because the issue of antisocial personality disorder was

relevant and was raised on direct examination by appellant, the State was

permitted to cross-examine Dr. Gray-Smith concerning her knowledge about the

disorder and whether she believed that the appellant exhibited the criteria

necessary for such a diagnosis. Accordingly, the trial court properly overruled

appellant’s objection.

157 Issue 39: Dr. Gilbert Martinez

In Issue 39, appellant contends that the trial court erred in overruling his

objection to the State’s cross-examination of Dr. Gilbert Martinez, a clinical

neuropsychologist retained by the defense to provide expert testimony on

appellant’s cognitive and intellectual functioning. The cross-examination of which

appellant complains went as follows:

Q (MS. KEMP): So, doctor, would someone with antisocial personality disorder have an impulsiveness problem?

A (DR. MARTINEZ): Impulsivity is one of the diagnostic criteria for antisocial personality disorder, yes.

Q: Would someone with antisocial personality disorder have a failure to conform to society’s norms and general rules and regulations of society?

A: That’s another one of the diagnostic criteria for antisocial personality disorder.

Q: Would they have a history of lying, or conning other people for their own personal gain or pleasure?

A: That’s another one of the descriptors for antisocial personality disorder. That’s correct.

Q: Would they have difficulty in planning ahead?

A: Yes. That can be one of the symptoms, one of the features of antisocial personality disorder.

158 Q: Would they be seen as irritable and aggressive by having repeated fights in school?

MR. JOHNSON: Excuse me, Judge. All of these questions here are clearly outside of the referral question. He has testified in regards to what he was asked to do by me in regards to this case. He has not been asked to do any kind of psychological assessment in regards to any ASPD factors. She is, basically, just running down the DSM 4 and asking if these are the criteria for antisocial personality disorder. He was not asked, in any way, to do any type of evaluation in this case in those regards. He is testifying only towards his cognitive deficits, and that’s all that he is on for. We’ve got other individuals to speak to those matters where that would be relevant, but not this doctor.

MR. HEALY: Judge, he made an Axis II diagnosis and that included antisocial personality disorder.

THE COURT: Overruled. Please proceed.

MS. KEMP: Thank you. That person will show a reckless disregard for the safety of others, wouldn't he?

DR. MARTINEZ: That’s another feature of the antisocial personality disorder, yes.

(RR48: 153-54).

To the extent that appellant is complaining about the line of questioning

concerning the symptoms or diagnostic criteria associated with antisocial

personality disorder, appellant failed to raise a timely objection. See Tex. R. App.

P. 33.1(a). The prosecutor had already posed several questions regarding this 159 subject prior to appellant’s objection. Error is defaulted when the same evidence

is presented elsewhere without objection. McFarland v. State, 845 S.W.2d 824,

840 (Tex. Crim. App. 1992); Narvaiz v. State, 840 S.W.2d 415, 430 (Tex. Crim. App.

1992). Appellant also failed to object to additional questions concerning the same

subject matter. (RR48: 155-56). Accordingly, appellant has failed to preserve this

complaint for review.

To the extent that trial counsel was objecting to the prosecutor’s questions

concerning whether Dr. Martinez was of the opinion that appellant had antisocial

personality disorder, his objection was premature because the prosecutor had not

elicited such testimony. Furthermore, when the State did pose such questions to

Dr. Martinez, appellant failed to object. (RR48: 157-60). Consequently, this

complaint has also not been preserved for review.

The Trial Court Did Not Abuse its Discretion by Permitting the State’s Cross-Examination of Dr. Martinez

Alternatively, appellant’s claim fails on the merits. Dr. Martinez, a licensed

neuropsychologist, testified that he was familiar with the diagnostic criteria for

antisocial personality disorder. (RR48: 156). That diagnostic criteria is found in the

Diagnostic and Statistical Manual for Mental Disorders (“DSM”), which Dr.

Martinez testified is used by most clinicians and was, in fact, used by Dr. Martinez 160 in his evaluation of the appellant. (RR48: 155-56; Defendant’s Exhibit 11).

Therefore, questions concerning the criteria or symptoms exhibited by someone

with antisocial personality disorder were not outside his area of expertise.

Additionally, because Dr. Martinez had reviewed appellant’s medical records and

a 1994 psychological evaluation, conducted a face-to-face interview with

appellant, and administered a battery of neuropsychological tests to the

appellant, it was reasonable to question him concerning whether he had an

opinion as to whether appellant met the criteria for a diagnosis of antisocial

personality disorder. (RR48: 102-07, 111-12). Accordingly, the State’s cross-

examination of Dr. Martinez was appropriate, and the trial court properly

overruled appellant’s objection.

Finally, even if the trial court erred in overruling the appellant’s objections,

the error was harmless. Error in the admission of evidence is non-constitutional

error and must be disregarded unless the error affects a defendant’s substantial

rights. See Tex. R. Evid. 103; Tex. R. App. P. 44.2(b); Walters v. State, 247 S.W.3d

204, 218-19 (Tex. Crim. App. 2007). “[S]ubstantial rights are not affected by the

erroneous admission of evidence if the appellate court, after examining the

161 record as a whole, has fair assurance that the error did not influence the jury, or

had but a slight effect.” Solomon v. State, 49 S.W.3d 356, 365 (Tex. Crim. App.

2001) (internal quotation marks omitted).

Examining the record as a whole, it is clear that any error in the trial court’s

rulings did not have a substantial and injurious effect or influence on the jury.

First, Dr. Gray-Smith had already testified, without objection, that appellant’s

academic and psychological records suggested that he had antisocial personality

disorder. Additionally, while Dr. Martinez was questioned by the prosecutor

concerning whether appellant met the criteria for antisocial personality disorder,

Dr. Martinez testified that he had not been asked to evaluate the appellant for

antisocial personality disorder and had not performed the necessary assessments

to make that determination. Accordingly, his testimony had no negative impact

on the appellant. Therefore, any error in the trial court’s rulings did not affect

appellant’s substantial rights. See Tex. R. App. P. 44.2(b).

Based on the foregoing, Issues 38 and 39 should be overruled.

Issue 40: Trial Court’s Statement Regarding Sequestration

In Issue 40, appellant contends that the trial court improperly commented

on the weight of the evidence in his statement to the jury concerning being

162 sequestered after they had begun deliberating. (Appellant’s Brief, pp. 121-24).

The record reflects that the trial court’s statement was not an improper comment

on the evidence, nor did it prejudice the rights of appellant.

After both sides rested and closed at punishment, the trial court gave the

following instructions to the jury:

THE COURT: All right. Ladies and gentlemen of the jury, that closes the evidence in the case. Now, it is almost 3:00, so what I'm going to do, it is too late to start your deliberations because once I charge you, we have closing arguments, then I can't let you separate, so what I'm going to do this evening is send you-all home and bring you back at 9:00 o'clock in the morning, at which time I will read the charge to you. We will have closing arguments of counsel, and then I will send you out to deliberate punishment. All right. So remember the instructions that I have given you earlier, not to discuss any of the evidence in this case with anyone, not even among yourselves. Do not watch any of the TV or read the newspaper accounts or any of those things. Have a good evening, and we will see you back here at 9:00 o'clock tomorrow morning.

MR. JOHNSON: Judge, they're going to need --the future instructions.

THE COURT: Okay. I was going to tell you about bringing –

THE BAILIFF: I will tell them back here.

THE COURT: Mike has some instructions. I've asked Mike to have you, in the morning, bring with you a change of clothes just in case. I don't think you are going to need it, but just in case you do not finish your deliberations tomorrow, then I will have to sequester you as long as 163 you are in deliberations, or before you return to court with a verdict on punishment, then I will have to keep y'all together. And so -- just bring a change of clothes with you. Anything else, Mike, that I need to tell them about?

THE BAILIFF: No.

THE COURT: You think that covers it?

THE BAILIFF: Yes, sir.

THE COURT: All right. Very good. Thank y'all. We will see you tomorrow morning at 9:00 o'clock tomorrow morning.

(RR49: 151-53). After the jury was removed, appellant moved for a mistrial.

(RR49: 157). He argued that the trial court’s statement “I don’t think you are

going to need it” in regards to the change of clothes he instructed them to bring

was an improper comment on the weight of the evidence and an indication from

the bench that the court is of the opinion there is nothing in the case worthy of

deliberation. (RR49: 157-58). When asked to explain what he meant by the

comment, the trial judge stated: “I was only explaining to them why I’m going to

start them in the morning and give them all day long, but if they don’t reach a

verdict, then they need to be prepared to - … - so I could sequester them. And if I

didn’t think that that was necessary, I wouldn’t have told them to bring any

clothes.” (RR49: 158-59).

164 The following morning, the jury heard the argument of counsel and was

given instructions for their deliberation of the special issues. (CR2: 402-07). They

were instructed that it would not be proper for them to arrive at their answers to

the special issues by any other method other than by a full, fair, and free

exchange of the opinion of each individual juror. (CR2: 405). They were further

instructed that they may, and should, deliberate for as long as they felt was

necessary to arrive at their answers to the special issues. (CR2: 405).

There are no set time limits on jury deliberations, and the length of time

the jury may be held to deliberate is left to the sound discretion of the trial court.

See Guidry v. State, 9 S.W.3d 133, 155 (Tex. Crim. App. 1999). “The court on its

own motion may and on the motion of either party shall, after having given its

charge to the jury, order that the jury not be allowed to separate . . . ." Tex. Code

Crim. Proc. Ann. art. 35.23 (West 2006).

Article 38.05 of the Texas Code of Criminal Procedure provides, in part, that

a judge may not at any stage of the proceeding previous to the return of the

verdict, make any remark calculated to convey to the jury his opinion of the case.

Tex. Code Crim. Proc. Ann. art. 38.05 (West 1979). A trial court improperly

165 comments on the weight of the evidence if it makes a statement that implies

approval of the State’s argument, indicates any disbelief in the defense’s position,

or diminishes the credibility of the defense’s approach to its case. Hoang v. State,

997 S.W.2d 678, 681 (Tex. App.—Texarkana 1999, no pet.); Clark v. State, 878

S.W.2d 224, 226 (Tex. App.—Dallas 1994, no pet.).

To be reversible, a violation of Article 38.05 must be reasonably calculated

to benefit the State or prejudice the rights of the defendant. Becknell v. State, 720

S.W.2d 526, 531 (Tex. Crim. App. 1986); Simon v. State, 203 S.W.3d 581, 592 (Tex.

App.—Houston [14th Dist.] 2006, no pet.). In evaluating whether the court's

comment on the evidence was reasonably calculated to benefit the State or

prejudice the defendant, the reviewing court first examines whether the

comment was material, i.e., if the jury was considering the same issue. Clark, 878

S.W.2d at 226. The reviewing court must then consider the consequences that

probably resulted from the trial court’s comment to determine whether the

comment prejudiced appellant’s rights. Id.; Tex. R. App. P. 44.2(b).

The Trial Court’s Statement Was Not an Improper Comment on the Weight of the Evidence

During the complained-of statement, the trial court admonished the jury

that they could be sequestered. See Tex. Code Crim. Proc. Ann. art. 35.23. The 166 court instructed them to bring a change of clothes in the event that they were not

finished deliberating at the end of the day. As reflected by the trial court’s

explanation following the removal of the jury, the intent of the statement was

simply to inform the jurors of the possibility of sequestration. The court further

explained that if it did not believe the jury had anything worthy of deliberation he

would not have instructed them to bring a change of clothes.

The record reflects that the trial court’s statement “I don’t think you will

need them” with regard to the extra clothes was an offhand comment with no

calculated intent. It is possible the trial court was trying to put the jurors at ease

about the potential sequestration. It is also possible that the trial court reasonably

believed that the jury would reach a verdict after a full day of deliberation based

on his experience as a judge who has presided over multiple capital murder cases.

Regardless, the trial court’s comment did not imply approval of the State’s

position or indicate any disbelief in the appellant’s position. As such, this

statement was not an improper comment on the weight of the evidence. See

Hoang, 997 S.W.2d at 682.

Even if this comment could be construed, as appellant claims, to convey the

trial court’s perception of the state of the evidence and belief that the jury would

167 not need to give much time in deliberation of the special issues, this comment did

not necessarily benefit the State. The comment contains no expression of the trial

court’s view of how the jury should resolve the special issues. There was

compelling punishment evidence presented by both sides during appellant’s trial.

The trial court’s comment could have just as easily been perceived to mean that

the court did not think it would not take the jurors longer than a day to resolve

the special issues in such a way that resulted in a life sentence for appellant.

To the extent that the trial court’s comment could be perceived as rushing

the jurors in their deliberation with a threat of sequestration, this claim is equally

without merit. The jurors were sent home for the evening following the trial

court’s statement. The following morning, they were given detailed instructions

regarding their deliberation of the special issues. The jurors were instructed that

they may, and should, deliberate for as long as necessary to arrive at their

answers to the special issues. (CR2: 405). Judicial instructions to the jury are

presumed to be effective unless evidence shows the jury did not follow the

directive. See Gamboa, 296 S.W.3d at 580 (a jury is presumed to follow the trial

court’s instructions). There is no indication in the record that the jurors were not

allowed to deliberate as long as they felt was necessary.

168 The Trial Court’s Comment Was Not Calculated to Benefit the State or Prejudice Appellant

Even if this Court were to find that this was an improper comment on the

weight of the evidence, it does not constitute reversible error. There is simply no

indication that the comment was reasonably calculated to benefit the State or

prejudice the rights of the defendant. See Becknell, 720 S.W.2d at 531; Simon, 203

S.W.3d at 592. First, it was not material. The issue before the jury was resolution

of the special issues, the outcome of which would determine whether appellant

was going to receive a sentence of life or death. The trial court’s comment, which

referred to its belief on the time deliberations might take and whether the jury

would be sequestered, pertained more to the logistics of deliberations and was

immaterial to their resolution of the special issues.

Moreover, a review of the record indicates that the comment did not affect

appellant’s substantial rights. See Tex. R. App. P. 44.2(b). The trial court’s

comment did not inject harmful new facts and was not calculated to deprive

appellant of a fair and impartial trial. The jury instructions included in the

punishment charge – instructing the jurors to deliberate for as long as necessary

and to arrive at their answers to special issues only after a full, fair, and free

exchange of the opinion of each juror – helped to cure any error. Further, in light 169 of the heinousness of appellant’s offense of drowning his two young sons and the

voluminous and compelling punishment evidence presented by the State, it is

unlikely that the trial court’s offhanded comment had any influence on the jury’s

verdict. Issue 40 is without merit and should be overruled.

Issue 42: Legal Sufficiency of Future Dangerousness Special Issue

In Issue 42, appellant contends that there was insufficient evidence to

support the jury’s answer to Special Issue No. 1, the future dangerousness special

issue. Specifically, he contends that he had no prior violent offense convictions

that sent him to the penitentiary. He also contends that the offense was the

result of family conflict about his children that would not exist in prison, thereby

removing the probability that he would constitute a future danger. (Appellant’s

Brief, pp. 126-27). Appellant’s contentions are without merit and should be

The State has the burden of proving the punishment issue of future

dangerousness beyond a reasonable doubt. Tex. Code Crim. Proc. Ann. art.

37.071, §§ 2(b)(1), 2(c). In assessing the legal sufficiency of the evidence of future

dangerousness, this Court views the evidence in the light most favorable to the

170 verdict to determine whether 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 that would constitute a continuing threat to society. See Estrada,

313 S.W.3d at 284.

In its determination of the special issues, the jury is entitled to consider all

the evidence presented at the guilt phase of the trial, in addition to the evidence

presented at the punishment phase. Young, 283 S.W.3d at 863. Some factors the

jury may consider when determining whether appellant will pose a continuing

threat to society include: (1) the circumstances of the offense, including the

defendant’s state of mind and whether he was working alone or with other

parties; (2) the calculated nature of his acts; (3) the forethought and

deliberateness exhibited by the crime’s execution; (4) the existence of a prior

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. See Wardrip v. State, 56 S.W.3d

588, 594 (Tex. Crim. App. 2001); Keeton v. State, 724 S.W.2d 58, 61 (Tex. Crim.

App. 1987). The circumstances of the offense and the events surrounding it may

171 be sufficient in some instances to sustain a “yes” answer to the future-

dangerousness special issue. Young, 283 S.W.3d at 863.

The Evidence is Legally Sufficient to Support the Jury’s Finding of Future Dangerousness

The State presented sufficient evidence to support the jury’s finding of

future dangerousness. First, the gruesome facts of the offense alone were

sufficient to support a finding of future dangerousness. The evidence presented at

trial showed that appellant murdered his two young sons because he was angry

with their mother Kametra. On the Saturday prior to the offense, appellant saw

Kametra with another man at a back-to-school barbeque and became angry that

she was seeing another man and that the man was in his sons’ lives. The evidence

reflects that appellant asked to borrow his friend Christal’s car so that he could

drive Naim to school on his first day, despite not having obtained permission to

take him. On the day of the offense, after being told he could not drive Naim to

school, appellant saw Kametra, Naim and Elijah walking toward Naim’s school.

Appellant stopped the car and forced Kametra and the boys to get into the car.

Appellant then drove them aimlessly around the neighborhood, all the while

threatening to harm Kametra. When appellant stopped the car for a red light,

Kametra saw a constable one lane over. Despite appellant’s warnings not to get 172 out of the car, Kametra jumped out of the car and flagged down the constable.

Angry that Kametra disobeyed him, appellant sped off with the boys. He then

took them to a creek, told them to sit in the water, place their heads under the

water, and pretend like they were swimming. Appellant then held their heads

under the water until they drowned. Afterward, appellant attempted to break

into the house where his youngest son Jeremiah was sleeping, but was forced out

of the house by Kametra’s brother.

The calculated and deliberate nature of appellant’s actions in committing

this violent and heinous double-murder was sufficient to support the jury’s

finding of future dangerousness. See Druery v. State, 225 S.W.3d 491, 507 (Tex.

Crim. App. 2007) (the circumstances of an offense can be some of the most

revealing evidence of future dangerousness and may be sufficient to

independently support an affirmative answer to the future dangerousness issue).

The State, however, did not rely solely on the facts of the offense to prove

appellant’s future dangerousness.

The State also presented evidence of appellant’s extensive criminal history,

spanning nearly twenty years, back to when appellant was thirteen-year-old

juvenile. Between January 1993 and August 1994, appellant was arrested seven

173 times. Appellant’s offenses included: two burglaries of a habitation, possession of

a stolen vehicle, burglary of a coin operated machine, burglary of a motor vehicle,

unauthorized use of a motor vehicle, and evading arrest. After numerous

attempts to place appellant on probation and home supervision, appellant was

confined to Daytop Village, where appellant received individual and group

counseling. However, appellant was unable to follow the rules, and after

numerous infractions, concluding with his assaulting the same juvenile twice in

one day, appellant was discharged from the facility on July 1, 1995.

Following his discharge from Daytop Village, appellant was sent to TYC,

where his violent behavior and inability to follow the rules continued. In general,

appellant was explosive and disrespectful to the TYC staff. This was particularly

evident in his treatment of female staff. On one occasion appellant approached

female staff member Nina Adams as she was teaching class, and began bumping

his erect penis against her leg. On several other occasions, appellant called female

staff bitches, fat mother fuckers, and “ho’s.” Appellant’s infractions, however,

were not restricted to the TYC staff. Appellant was involved in a three-on-one

fight in the dormitory restroom in which he punched a juvenile that was being

held down on a toilet. Appellant was also caught with razor blades and crushed

174 aspirin. Appellant admitted that he had stolen the razor blades and was trading

the aspirin for snacks.

After he was released from TYC, appellant continued to have trouble with

the law. Appellant picked up three new offenses in 1997: burglary of a vehicle,

evading arrest, and theft of check. The following year, appellant was arrested for

burglary of a vehicle. Appellant’s encounters with the law continued in 1999,

when appellant was arrested on a warrant when he was stopped, along with two

other men, during an investigation into a burglary. While the officers determined

that the appellant and other men were not involved in the burglary, a loaded

shotgun was found inside the vehicle and a bag of marijuana and screwdriver

were found tossed just outside of the vehicle.

Additionally, the State presented substantial evidence of appellant’s

violence against women. In 2001, appellant was caught peering in the window of

a female neighbor. When the neighbor confronted appellant, he denied looking in

the window and threatened to beat her if she continued to say that he had.

Appellant also exhibited physical violence toward his sister Sekinah. In 2009,

appellant took a hammer and hit her twice in the back of the head. Appellant was

sentenced to five years’ deferred adjudication for the charge of aggravated

175 assault with a deadly weapon. Appellant received probation at the request of his

sister, who wanted him to be able to provide for his children. Appellant was on

probation for this offense when he committed the instant capital murder.

The State also presented considerable evidence concerning appellant’s

violent relationship with Kametra. Appellant began a sexual relationship with

Kametra when he was twenty-five and she was fifteen. Appellant began hitting

her only a few short weeks into their relationship. The jury heard how appellant

repeatedly physically abused Kametra, even when she was pregnant with his

three children. After learning that she was pregnant with their first child,

Appellant kicked her in the stomach in an attempt to cause a miscarriage. When

that failed, appellant suggested that she drink bleach or use a wire hanger.

The jury also heard about two particularly violent encounters Kametra had

with the appellant in the months preceding the capital murder. In February 2011,

appellant punched Kametra in the face, forced his way into her mother’s house,

and grabbed Naim. Appellant then kicked down a door in order to flee the house.

Approximately one month later, appellant forced his way into the car Kametra

was driving when she came to pick the boys up from a visit with him. Appellant

demanded that she take him to the store, and when she refused to take him,

176 Appellant choked her until she was unconscious. When she woke up, she was

inside the house where appellant was living with his brother, but had no

recollection of how she got there. Appellant, who was still angry that she had

refused his earlier demand, hit Kametra in the head with a heavy object she

believed was a gun, when she said she needed to leave. Later, when she

convinced appellant that she needed to return her sister’s car, appellant insisted

on going with her. When Kametra’s sister saw the bruised and bloody condition

she was in, she called the police. Appellant then grabbed Elijah and told Kametra

she and Jeremiah had to come with him or he would kill Elijah. When appellant

saw the police coming, he threw Elijah to the ground and took off running.

The jury also heard testimony concerning appellant’s actions during his

arrest for the instant offense. Appellant resisted when officers tried to handcuff

him, and it ultimately took four officers to restrain him. Appellant was tased three

times before the officers were finally able to place him in handcuffs.

Moreover, while in jail awaiting his trial for capital murder, appellant

continued to have disciplinary infractions and violent outbursts. On October 25,

2011, appellant refused to comply with instructions from an officer when he was

told he was going to be moved to a different cell. Appellant refused to move and

177 told the officer that he would have to physically be picked up and moved to the

other cell. Ultimately, appellant was picked up and moved by two officers.

On April 25, 2012, appellant refused to return a breakfast tray after

receiving a different breakfast from the one he ordinarily received. Appellant

swung at Officer Thomas when the officer went into appellant’s cell to retrieve

the tray. It took approximately three to four officers to restrain the appellant.

On November 24, 2012, in a jail phone call to his brother Jamal, appellant

told his brother that the only reason he had not “fired off on some of these fools”

was because he wanted to keep up with his sports and visits.

Finally, on March 26, 2013, appellant fought with another inmate over the

television. Officer Moreno observed appellant and another inmate in a fighting

stance. The other inmate received scratches to his chest and appellant was given

fifteen days’ full restrictions following the fight.

It is clear that the State presented sufficient evidence of appellant’s future

dangerousness. Appellant’s argument that he lacked any prior violent convictions

which sent him to the penitentiary ignores the evidence presented by the State

that appellant had committed numerous unadjudicated violent assaults, including

the assaults against Kametra that occurred in the months preceding the instant

178 offense. It also ignores the fact that he was on probation for aggravated assault

with a deadly weapon at the time he committed capital murder. Viewed in the

light most favorable to the verdict, appellant’s criminal history – whether or not it

involved trips to prison – evidence a violent, unrepentant man.

The state presented sufficient evidence from which the jury could find

beyond a reasonable doubt that there is a probability that appellant would

commit criminal acts of violence that would constitute a continuing threat to

society. Thus, the evidence was legally sufficient to support the jury’s answer to

the future dangerousness special issue, and Issue 42 should be overruled.

Issues 43-54: Federal Constitutional Issues

In Issues 43 through 54, appellant challenges the constitutionality of the

Texas death penalty statute. He acknowledges that these issues have been

previously overruled and are asserted mainly to preserve each issue for further

review in the federal courts. (Appellant’s Brief, pp. 128-36).

In Issue 43, appellant contends that the statute under which he was

sentenced to death is unconstitutional in violation of the cruel and unusual

punishment prohibition of the Eighth Amendment because it allows the jury too

much discretion to determine who should live and who should die and because it

179 lacks the minimal standards and guidance necessary for the jury to avoid the

arbitrary and capricious imposition of the death penalty.

In Issue 44, appellant contends that the statute under which he was

sentenced to death violates the due process requirements of the Fourteenth

Amendment because it implicitly puts the burden of proving the mitigation

special issue on appellant rather than requiring a jury finding against appellant on

that issue under the beyond a reasonable doubt standard.

In Issue 45, appellant contends that the trial court erred in denying his

motion to hold Article 37.071, § 2(e) and (f) concerning the burden of proof

unconstitutional as a violation of Article I, §§ 10 and 13 of the Texas Constitution.

In Issue 46, appellant contends that the Texas death penalty scheme

violates due process protections of the United States Constitution because the

punishment special issue related to mitigation fails to require the State to prove

the absence of sufficient mitigating circumstances beyond a reasonable doubt,

contrary to Apprendi v. New Jersey, 530 U.S. 466 (2000), and its progeny.

In Issue 47, appellant contends that the Texas death penalty scheme

violated his rights against cruel and unusual punishment and to due process of

law under the Eighth and Fourteenth Amendments to the United States

180 Constitution by requiring at least ten “no” votes for the jury to return a negative

answer to the punishment special issues.

In Issue 48, appellant contends that the Texas death penalty scheme

violated his rights against cruel and unusual punishment, to an impartial jury and

to due process of law under the Sixth, Eighth, and Fourteenth Amendments of the

United States Constitution because of vague, undefined terms in the jury

instructions at the punishment phase of the trial that effectively determine the

difference between a life sentence and the imposition of the death penalty.

In Issue 49, appellant contends that the trial court erred in overruling his

motion to hold Art. 37.071, § 2(e) and (f) unconstitutional because said statute

fails to require the issue of mitigation be considered by the jury.

In Issue 50, appellant contends that the mitigation special issue is

unconstitutional because it fails to place the burden of proof on the State

regarding aggravating evidence.

In Issue 51, he claims that the mitigation special issue is unconstitutional

under the Eighth and Fourteenth Amendments to the United States Constitution

because it permits the very type of open-ended discretion condemned by the

United States Supreme Court in Furman v. Georgia, 408 U.S. 238 (1972).

181 In Issue 52, appellant contends that Texas’ statutory capital sentencing

scheme is unconstitutional under the Eighth and Fourteenth Amendments

because it does not permit meaningful appellate review.

In Issue 53, appellant contends that the trial court erred in overruling his

motion to quash the indictment as being unconstitutional based on the

enumerated constitutional defects of Texas capital-murder death-penalty law.

In Issue 54, he contends that the cumulative effect of the above-

enumerated constitutional violations denied him due process of law in violation

of the Fifth and Fourteenth Amendments of the United States Constitution.

Appellant invites the Court to revisit its stand on these issues, which he

concedes have all been previously overruled. See App. Brief, p. 128; Saldano, 232

S.W.3d at 107-09 (overruling multiple challenges to death penalty statute);

Escamilla v. State, 143 S.W.3d 814, 838-829 (Tex. Crim. App. 2004) (same).

Appellant presents no new arguments for the State to address. This Court should

decline appellant’s invitation to revisit these legal claims and overrule Issues 43

through 54.

182 PRAYER

The State prays that this Honorable Court will overrule appellant’s issues on

appeal and affirm the trial court’s judgment.

Respectfully submitted,

/s/ Jaclyn O’Connor Lambert __________________

Susan Hawk Jaclyn O’Connor Lambert Criminal District Attorney Assistant District Attorney Dallas County, Texas State Bar No. 24049262 Frank Crowley Courts Building 133 N. Riverfront Blvd., LB-19 Dallas, Texas 75207-4399 (214) 653-3625 (214) 653-3643 fax

183 CERTIFICATE OF COMPLIANCE

I hereby certify that there are 37,663 words in this document excluding the statement regarding oral argument, table of contents, index of authorities, statement of the case, signature, certificate of service, and certificate of compliance. This number exceeds the maximum allowable number of words provided in the Texas Rules of Appellate Procedure. See Tex. R. App. P. 9.4(i)(2)(A). The State is filing a Motion to Exceed the Word Count contemporaneously with this brief.

Jaclyn O’Connor Lambert

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing brief was served on appellant’s attorney, John Tatum, 990 S. Sherman Street, Richardson, Texas 75081, jtatumlaw@gmail.com, via email and U.S. mail on January 30, 2015.