Rachal v. State

917 S.W.2d 799, 1996 Tex. Crim. App. LEXIS 7, 1996 WL 15472

• Court: Court of Criminal Appeals of Texas
• Decided: January 17, 1996
• Docket: 71569
• Status: Published

Opinions

OPINION

WHITE, Judge.

In October 1992, appellant was tried and convicted of capital murder under Texas Penal Code § 19.03. The offense, a double robbery-murder, was committed in October 1990. The jury affirmatively answered the two special issues submitted under Article 37.071(b).¹ Appellant was sentenced to death as mandated by Article 37.071(e). Article 37.071(h) provides direct appeal to this Court. Appellant raises fifteen points of error. We affirm.

In point of error fourteen appellant challenges the sufficiency of the evidence to establish that appellant “would commit criminal acts of violence in the future which would constitute a continuing threat to society.” Art. 37.071(b)(2). In answering issues raised under Article 37.071(b), the jury may consider evidence admitted at both the guilt-innocence and punishment stages of trial. Keeton v. State, 724 S.W.2d 58, 61 (Tex.Crim.App.1987). The jury is the sole judge of the weight of the evidence and may choose to believe all, some, or none of it. Chambers v. State, 805 S.W.2d 459, 461 (Tex.Crim.App.1991). Reconciliation of conflicts in the evidence is within the exclusive province of the jury. Losada v. State, 721 S.W.2d 305, 309 (Tex.Crim.App.1986). Thus, sufficiency reviews on appeal require that while examining the evidence in the light most favorable to the verdict, we ask whether any rational trier of fact could have found the elements in question beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Burns v. State, 761 S.W.2d 353, 356-357.² Reviewing the record before us under the Jackson standard, we must uphold the jury’s verdict.

The record reveals, largely from appellant’s own confession, the following facts supporting the verdict: On the evening of October 25, 1990, appellant visited his friend, Michelle Dupree and her roommate, Gwendolyn Frank. Three others were present: Tommy German, Howard Gibson, and Felicia Duplachane. The group was smoking marihuana and taking Valium (diazepam). Appellant and German talked about committing a robbery. When all but Frank had agreed to participate in the aggravated robbery, firm plans were laid. The women, dressed seductively, would lure male victims to a location where the male conspirators would ambush and rob the victims at gun point. While Duplachane and Dupree changed into “whoring” clothes, the men got their guns.

The group, joined by a driver identified only as Ant, went to an apartment complex selected for its high pedestrian traffic. Spotting three men ambling about the complex, Duplachane and Dupree walked toward them so as to catch their attention. The three male victims, C. Washington, A Robinson and T. Davis, beguiled by Duplachane and Dupree, followed the women, uttering lewd exclamations. As they passed by appellant, the women signaled that these men were the targets. Appellant approached the victims, exposed his .357 caliber handgun and ordered them to lie down. As appellant began searching the three men, his accomplices, German and Gibson, joined him. Two male bystanders became aware of the robbery and fled. Appellant yelled for his accomplices to stop them. Two shots were fired at the fleeing men. Without provocation, German then shot one of the prostrate victims, Davis, in the back. Appellant, also without provocation, shot the other two victims, Washington and Robinson, in the head. Washington and Davis were fatally wounded. Robinson survived.

Meanwhile the fourth victim, T. Fonteno, was on the grounds of the apartment complex. He heard gun shots and froze upon seeing appellant turn a corner with gun in hand. Appellant approached Fonteno demanding dope and money. Fonteno replied that he had neither and surrendered his wallet to appellant. Appellant ordered Fonteno on his knees, but fearing execution, Fonteno refused, pleading with appellant that there was no need to shoot him. German joined appellant and raised his shotgun to strike Fonteno with it. As Fonteno raised his arms to protect himself from the blow, appellant shot him in the lower chest and abdomen.

This record reveals a planned ambush, the cold and senseless murder of two men, and the near-fatal shooting of two other men wholly without provocation. Appellant personally shot three of the four victims. The victim killed by appellant was shot in the head at close range as he lay helplessly prostrate on the ground. Appellant also shot one of the surviving victims at close range in the head. Appellant commanded his cohorts to shoot at the two bystanders who fled and he also personally shot Fonteno, leaving him for dead. And, these shootings occurred, as planned, within the precincts of an apartment complex, accentuating appellant’s gross disregard for human life.

Nor was this appellant’s first offense. During his sentencing trial, appellant’s criminal record was introduced, establishing that appellant had previously been convicted of evading arrest, misdemeanor assault, criminal mischief, and unlawful possession of a weapon. Appellant’s lengthy juvenile record included theft and burglary for which he had been placed under the supervision of the Harris County Juvenile Probation Department; this probation was ultimately adjudicated because of various violations. An officer from Juvenile Probation testified that she “knew he was headed for violence.” Three witnesses also testified that appellant had a bad reputation for violence and law-breaking, and two other witnesses testified from personal knowledge that appellant was violent and aggressive while incarcerated and awaiting trial. Evidence was introduced that only months before the tried offense, appellant had shot and killed a man known as Charles Wilson.³

Evidence indicated that appellant was without regret or remorse for any of the killings. Indeed, such was appellant’s lack of reflection and remorse on the taking of Charles Wilson’s life, that soon thereafter he actively sought to place himself in the position to take more lives and did so. E.g., Williams v. State, 668 S.W.2d 692 (Tex.Crim.App.1983); See also Wilkerson v. State, 881 S.W.2d 321, 343 (Tex.Crim.App.), cert. denied;—U.S.-, 115 S.Ct. 671, 130 L.Ed.2d 604 (1994) (Judge Baird dissenting) (explaining importance of lack of remorse as evidence of future dangerousness). And, no sooner had appellant literally turned the corner from having fatally injured two of his victims, than he again attempted robbery and murder of another. Wilkerson, 881 S.W.2d at 325-326. And, again we note that his shooting spree occurred in a heavily trafficked residential area where every bullet fired showed callousness and disrespect for human life.

The evidence introduced at trial established appellant’s propensity for casual shooting and killing. This utter disregard for human life supports the jury’s finding that appellant indeed poses a continuing threat to society as contemplated in Article 37.071(b)(2). Appellant’s fourteenth point of error is overruled.

In his first point of error, appellant argues that the trial court erred in admitting evidence during his punishment trial that he had a few months previous to the tried offense been investigated, arrested, and ultimately no-billed in the fatal shooting of a man known as Charles Wilson. During his sentencing trial, it was introduced, over appellant’s objection, that in May 1990, he was arrested and charged in the murder of Charles Wilson. It was also introduced that the charges were ultimately dismissed when no-billed by a Grand Jury, and the State’s attorney testified that he had investigated the homicide and personally believed that “the evidence was such that a fair jury would probably have concluded that it was self-defense.” Appellant argues that since the extraneous homicide was found to be “justifiable and lawful” and committed in “self-defense,” it should not have been admitted against him. Appellant does not dispute that he committed the homicide, but challenges the relevance of such evidence and alternatively argues that it is substantially more prejudicial than probative. Evid.R. 402 and 403. Tex.R.Crim.

Appellant overstates the meaning of a no-bill. The Grand Jury’s no-bill of the Wilson homicide does not mean it was justified, lawful, or in self-defense. The Grand Jury is without authority to make such findings; its authority and duty is limited to inquiring into criminal accusations and determining whether evidence exists to formally charge a person with an offense. Arts. 20.09, 20.19; and Art. 21.01 (defining indictment). A Grand Jury’s no-bill is merely a finding that the specific evidence brought before the particular Grand Jury did not convince them to formally charge the accused with the offense alleged. Thus, the issue here is whether evidence of an extraneous homicide, upon which a Grand Jury no-billed the appellant, is admissible against him in the sentencing phase of a capital murder trial.

We recently addressed and answered an indistinguishable question in Burks v. State, 876 S.W.2d 877, 908 (Tex.Crim.App.1994), cert. denied,—U.S.-, 115 S.Ct. 909, 130 L.Ed.2d 791 (1995). Burks asserted that the trial court erred during his sentencing trial by admitting evidence, including photographs, of an unindict-ed murder in which he had been charged and arrested. Id. The district attorney testified that he had dropped the murder charges against Burks because he believed the evidence insufficient to convict Burks. Id. at 909. In Burks, we ultimately held that the trial court had not erred. Id. We treated the homicide evidence in Burks as we would any other evidence of unadjudicated extraneous misconduct, thereby implicitly rejecting any categorical exclusion of extraneous misconduct left unindicted. Id. Today we expressly hold that misconduct left unadjudi-cated because the evidence may possibly be insufficient to formally indict is like any extraneous offense evidence introduced during the sentencing stage of a capital murder trial; if it is clearly proven, relevant, and more probative than prejudicial, it is admissible.⁴ Burks, 876 S.W.2d at 908-910.

Since appellant does not dispute his commission of the extraneous homicide, we move directly to review its relevance. In reviewing relevance, we examine every case on its own facts to determine whether the extraneous transaction is relevant. Id. at 908. As long as the trial court’s ruling was within the zone of reasonable disagreement, the trial court did not abuse its discretion and its ruling will be upheld. Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Ciim.App. 1990). But, if it cannot be concluded from common reasonable experience that the evidence has a tendency to make the existence of a fact of consequence more or less probable then the trial court’s decision was not within the zone of reasonable disagreement and it abused its discretion. Id. Moreover, when it is clear that what was perceived by the trial court as common experience is really no more than the operation of a common prejudice not borne out in reason, the trial court has abused its discretion. Id.

Citing Burks and using as a model the definition of relevant evidence provided in Rule 401 of the Texas Rules of Criminal Evidence, we hold that the trial court could reasonably find the fact that appellant had killed Charles Wilson was probative of at least his dangerousness to society, and thus relevant to that issue.⁵ That appellant knowingly and willingly placed himself in, and sought after, circumstances facilitating homicide soon after Wilson’s killing, demonstrates a callousness and lack of reflection about taking human life which tends to increase the probability that appellant is a future danger.⁶ See point of error fourteen, supra.

In reviewing the trial court’s determination of the probative and prejudicial value of evidence under Rule 403, we do not make a de novo determination, but reverse only upon a clear abuse of discretion. Montgomery, 810 S.W.2d at 392. But, reviewing for abuse of discretion in this context requires more than deciding that the trial judge did in fact conduct the required balancing between probative and prejudicial values; the trial court’s determination must be reasonable in view of all relevant facts. Id. at 392. Accordingly, if the record reveals criteria reasonably conducing to a risk that the probative value of the tendered evidence is substantially outweighed by unfair prejudice, then the trial court acted irrationally in admitting it and abused its discretion. Id.

Reviewing the record, we cannot hold the that trial court abused its discretion. We have already discussed the strong probative value of the Wilson homicide regarding appellant’s future dangerousness. And, while evidence of an extraneous murder is always potentially prejudicial, three factors palliate the prejudicial effect of the extraneous homicide in this case. First, when the evidence was introduced, appellant had already been found guilty of capital murder, and the jury knew that he had shot, with the intent to kill, two other men besides the victim and Wilson. Secondly, appellant did not deny that he killed Charles Wilson. Thirdly, the jury was presented with the entire truth about the Wilson homicide. The State’s attorney testified that the Grand Jury had not indicted appellant, and that he agreed with the conclusion that the Wilson homicide was probably committed in self-defense. Under these circumstances it was not irrational to conclude that the probative value of the evidence outweighed its prejudicial effect. The trial court was within its discretion in admitting the evidence that appellant shot and killed Charles Wilson. Appellant’s first point of error is overruled.

Appellant avers in his second point of error that the trial court erred in failing to suppress his written confession. He argues that his confession should have been suppressed as a matter of law because his allegations that his confession was coerced, involuntary, and the product of an unlawful inducement, were uncontroverted at the pretrial suppression hearing. Appellant’s argument is based on the Fifth Amendment of the United States Constitution, Article I, sections 10 and 19 of the Texas Constitution and Articles 38.22 and 38.23.⁷

At the pretrial suppression hearing, appellant testified that Detective Brown of the Houston Police Department had asked the only other police officer present, Detective Phillips, for a few minutes alone with appellant. Appellant alleged that during their brief time alone, Brown threatened him with the death penalty and promised that if he gave a confession, appellant would not receive capital punishment. Appellant also testified that the officers had not warned him of his rights and that he had not read the statement when he signed it.

Detective Phillips testified at the pretrial hearing that appellant had been given the requisite warnings, had voluntarily and knowingly given a statement, had read the warnings accompanying the written statement, had initialed each to indicate his waiver, and that appellant had read his statement, initialed the corrections to it and then signed it. Phillips also testified that appellant had initially denied any knowledge of the offense, but that at Brown’s request he had stepped out of the office for about ten minutes and that when he returned, appellant was willing to provide a statement.

On cross-examination at the pretrial hearing, appellant did not deny that he had initialed each of the rights enumerated at the beginning of his written confession. He agreed that he had read the warnings, understood them, and initialed each to indicate his waiver of the right described therein. He continued to deny having read the statement before signing it and having initialed the corrections made to it.

The state did not call Detective Brown to the stand during the pretrial hearing. Instead, the State relied on Detective Phillips’ testimony, appellant’s cross-examination, and its own argument that appellant was simply not credible. The trial court denied appellant’s motion to suppress but failed to enter findings of fact or conclusions of law until the appeal of this case.⁸ In her findings the trial judge states:

The defendant’s allegations of intimidation and threats by Detective Brown were not credible, and the court is convinced beyond a reasonable doubt that defendant’s testimony in this regard is not worthy of belief. In fact, the court specifically finds that no threats, promises or other inducements were made by police to obtain the defendant’s confession.

During the trial on the merits, Detective Brown was called by the State and testified, without objection from appellant, that appellant had offered his confession without duress, coercion, threat, or unlawful inducement. Defense counsel examined Detective Brown regarding appellant’s specific allegations and Brown specifically denied them.

Appellant argues that we must in our review of the record ignore the testimony of Detective Brown because it was not introduced until the trial on the merits after the trial court’s ruling was made. Albeit, in a sense logical — in that the trial court’s decision was based only on the evidence introduced during the suppression hearing — we must under the facts of this case reject appellant’s argument.

In reviewing the suppression determination, we are deferential to the trial court and will reverse only if it abused its discretion, i.e., if the decision is unsupported by the record. Upton v. State, 853 S.W.2d 548, 552 (Tex.Crim.App.1998). And, in determining whether a trial court’s decision is supported by the record, we generally consider only evidence adduced at the suppression hearing because the ruling was based on it rather than evidence introduced later. See, e.g., Hardesty v. State, 667 S.W.2d 130, 135 n. 6 (Tex.Crim.App.1984). However, this general rule is inapplicable where, as in this case, the suppression issue has been consensually re-litigated by the parties dining trial on the merits. Id. Where the State raises the issue at trial either without objection or with subsequent participation in the inquiry by the defense, the defendant has made an election to re-open the evidence, and consideration of the relevant trial testimony is appropriate in our review. Id. at 135; See also Webb v. State, 760 S.W.2d 263, 272 n. 13 (Tex.Crim.App.1988), cert. denied, 491 U.S. 910, 109 S.Ct. 3202, 105 L.Ed.2d 709 (1989). Moreover, it would be unreasonable to ignore trial evidence in our review of the court’s suppression decision only to be confronted by the evidence in our consideration of whether the error was harmless. Tex.RApp.P. 81(b)(2). Thus, in the case at bar, since appellant did not object when the State reintroduced the suppression issues and, indeed, fully participated in the relitigation of the issue in its cross-examination of Detective Brown, we may properly consider Detective Brown’s trial testimony in our review of the trial court’s suppression determination.

At trial Detective Brown specifically denied appellant’s allegations of duress, threats, or improper inducement in persuading appellant to offer a statement. Thus, the record does show that the State did dispute appellant’s allegations, and it supports the trial court’s finding that appellant’s confession was admissible. The trial court did not abuse its discretion; appellant’s second point of error is overruled.

In points of error four and five, appellant argues that the trial court erred in dismissing veniremembers H. Kaupp and D. Siefke, respectively, upon the State’s challenges for cause. The State challenged Kaupp and Siefke on grounds that they were unable to follow the law and fulfill their duty as jurors because of their views on the death penalty. Witherspoon v. Illinois, 391 U.S. 510, 522, 88 S.Ct. 1770, 1777, 20 L.Ed.2d 776 (1968); Nelson v. State, 848 S.W.2d 126, 133 (Tex.Crim.App.1992), cert. denied,—U.S.-, 114 S.Ct. 100, 126 L.Ed.2d 66 (1993). Appellant argues that the record does not support the trial court’s decision.

A veniremember may not be struck for cause merely because he or she is opposed to the death penalty. Witherspoon, 391 U.S. at 522, 88 S.Ct. at 1777 (1968). A veniremember may be struck, however, if her views prevent or substantially impair the performance of her duties as a juror in accordance with the instructions given and the oaths taken. Adams v. Texas, 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980). For example, a veniremember may be properly struck for cause if his views of the death penalty would place a burden of proof greater than “beyond a reasonable doubt” on the State. Chambers v. State, 866 S.W.2d 9, 21 (Tex.Crim.App.1993), cert. denied,—U.S.-, 114 S.Ct. 1871, 128 L.Ed.2d 491 (1994). Our review of decisions to grant or deny challenges for cause is deferential to the trial court because of its superior position in evaluating the venirepersons’s demeanor and responses, and the context and tone in which questions are asked and answered during voir dire. Cantu v. State, 842 S.W.2d 667, 681 (Tex.Crim.App.1992), cert. denied,—U.S.-, 113 S.Ct. 3046, 125 L.Ed.2d 731 (1993), [citing, Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985)]. When the potential juror’s answers are vacillating, unclear, or even contradictory, the trial judge’s superior point of view is particularly important and deserving of our deference. Cantu, 842 S.W.2d at 682. Thus, we review the totality of the voir dire testimony and hold that the trial court abused its discretion only if the record does not support its decision. Id.

The record reveals that Kaupp vacillated. He indicated some reservations about the death penalty because of its irrevocable finality, but insisted that his reservations would not bias his deliberations, though he would be inclined toward life imprisonment over the death sentence if given a choice. When asked specifically about the special issues under Article 37.071, Kaupp wavered admitting that his views “could be a problem.” But, then the State explained that it was only required to prove that the answers to the special issues should be affirmative and that it was not required to justify the sentence of death beyond that. The State then asked appellant if his views would impair his ability to answer the special issue honestly under these circumstances, and Kaupp answered “Yes.” Id. Attempting to rehabilitate Kaupp, appellant asked, rather ambiguously, whether Kaupp could be fair to the State regarding the special issues, and Kaupp answered that he “could try.” The voir dire of Kaupp presents the circumstances under which we owe deference to the trial court. The record establishes that at best Kaupp would try to be impartial and follow the law, but he was uncertain about his ability to do so. When the venireman is persistently uncertain about his ability to follow the law, we will not second guess the trial court from a cold record. The record of Kaupp’s voir dire supports the trial court’s decision to dismiss him on the State’s challenge.

Similarly, venirewoman Siefke stated unequivocally that her religious views brought her in conflict with her duty as a juror. She told the trial court that her views would probably influence her analysis so as to avoid the death penalty. When asked specifically whether she could follow the law as instructed she vacillated several times, stating that she probably could but concluded that she did not know if she could. Siefke’s voir dire presents another juror who vacillated on her ability to follow the law, and establishes with certainty only that she did not know whether she could follow the law.

Appellant cites to our recent holding in Riley v. State, 889 S.W.2d 290 (Tex.Crim.App.1993). We refer appellant to our clarifying “Opinion on State’s Motion for Rehearing.” Riley v. State, supra. On rehearing we explained that the venirewoman in Riley was improperly dismissed because after being informed of the statutory scheme requiring jurors to simply answer the special issues affirmatively or negatively, the venirewoman stated that regardless of her own views, she would have to follow her oath and answer the special issue honestly; she was unequivocal about her ability, indeed, her duty to follow the law “never waver[ing] in her assurance that she could nonetheless give affirmative answers to the special issues if the evidence convinced her beyond a reasonable doubt that it should be so answered.” Id. at 298. This was not the case with either Kaupp or Siefke. We cannot under these facts of this case hold that the trial court abused its discretion. Since the record supports the trial court’s decision, appellant’s fourth and fifth points of error are overruled.

In his sixth and seventh points of error, appellant alleges the trial court committed Garrett error in sustaining the State’s challenge for cause to two veniremembers. Garrett v. State, 851 S.W.2d 853, 860 (Tex.Crim.App.1993). In point of error six, appellant complains about the dismissal of venire-woman B. Terrell. Terrell testified that even if she thought beyond a reasonable doubt that the State had proved that a capital murder defendant would probably commit criminal acts of violence constituting a threat to society, Article 37.071(b)(2), she would nevertheless vote negatively on that special issue unless the State also presented evidence that the defendant had a prior felony conviction. In point seven, appellant complains of the dismissal of venireman R. Adams. Adams repeatedly and unequivocally stated that even if convinced beyond a reasonable doubt that a defendant would commit criminal acts of violence constituting a threat to society, he would, nevertheless, require evidence that a defendant would kill another human being before he affirmatively answered the second special issue. Art. 37.071(b)(2). Both veniremembers were dismissed on the State’s challenge that they were biased against the law upon which it was entitled to rely. Fuller v. State, 829 S.W.2d 191, 200 (Tex.Crim.App.1992), cert, denied, 508 U.S. 941, 113 S.Ct. 2418, 124 L.Ed.2d 640 (1993); Art. 35.16(b). Appellant concedes that under Fuller the two challenged veniremembers were properly dismissed because they would require something other than what the law requires to find a defendant deathworthy. But, appellant argues that Fuller was reversed sub silentio by Garrett and its progeny.⁹

For the reasons explained below, we disagree with appellant and hold that Fuller and Garrett are distinguishable and that Fuller is controlling.

Fuller alleged that a venirewoman had been erroneously dismissed because of her views regarding the death penalty. Fuller v. State, 829 S.W.2d at 199. The venirewoman had stated that she would only affirmatively answer the special issues if the State proved that a defendant was a serial killer. Id. She was dismissed on the State’s challenge that she was prejudiced against the law upon which it was entitled to rely. Id. We held that the trial court had not erred because the venirewoman was prejudiced against the law. We noted that the basis of our holding was “not that prospective jurors may be challenged for cause whenever they have strong personal feelings about the criteria to be used in assessing punishment[, b]ut that personal standards may not be allowed to supplant statutory punishment classifications.” Id. at 200 [citing Landry v. State, 706 S.W.2d 105, 108 (Tex.Crim.App.1985) ]. We further explained that “any prospective juror unable to consider the maximum penalty allowed by law for all legally death eligible candidates is biased against the law and, therefore, subject to challenge for cause.” Id. This holding rests on the basic principle of law that jurors must be willing to set aside their personal prejudices and preferences regarding the death penalty to the extent that their views conflict with the law and interfere with their duties as jurors. Id. Garrett does not factually or legally present the same situation.

The venireman in Garrett did not require proof of any particular aggravating factor to find a defendant death eligible but merely stated that he could not on the facts of the offense alone find beyond a reasonable doubt that the defendant was a future danger. 851 S.W.2d at 857-859. We noted that though the law permits jurors to answer the special issues based solely on the facts of the offense being tried, there is no legal requirement that any juror ever do so, or even consider doing so. Id. at 859. We held that a juror’s individual understanding of proof beyond a reasonable doubt may legitimately lead him or her to require more than the minimum used in an appellate sufficiency of the evidence review. Id. at 860.

Appellant argues under Garrett that a veniremember is not excludable merely because the “quantum of evidence” which she would require to impose the death sentence includes proof of some specific characteristic, e.g., that the defendant is a serial killer or has killed before. But, focusing on Garrett, appellant neglects the question of Fuller, that is, whether the potential juror’s views of the death penalty conflict with the law and her duties as a juror. Since the venireman’s views in Garrett were not in conflict with any law, we did not need to reach this question in Garrett. But, anticipating Garrett, we emphasized in Fuller that the venirewoman was disqualified not because she resisted imposition of severe sanctions, but because in her view “factors other than those prescribed by law” were “absolute prerequisites ” for imposition of the death penalty. 829 S.W.2d at 200. We explained that these views biased the venirewoman against the law “[bjecause our law does not categorically reserve capital punishment only for those who have murdered before, [and] neither may individual jurors.” Id. And, we reiterated,

[jurors] may, of course, hold that the absence of prior criminal history militates strongly against the death penalty. They may even find it difficult to imagine answering the second punishment issue affirmatively without convincing proof of past violence, regardless of other circumstances in the case. But they may not wholly refuse, before hearing any evidence whatsoever, to consider an accused for the death penalty unless he has been convicted of murder before.

Id.

Today we unambiguously reaffirm our holding that potential jurors must be able to set aside their personal preferences and biases to consider as death eligible all those defined as death eligible by Section 19.03 of the Texas Penal Code and Article 37.071 of the Texas Code of Criminal Procedure.¹⁰ Potential jurors may believe what they want regarding the death penalty, including the quantum of evidence they will require to impose a death sentence.¹¹ See Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). But, jurors may not substitute the legal categories of death eligibility with their personal preferences and biases and thereby place themselves above the law. If even complete opposition to the death penalty must bend to the law, so must the remainder of the Pandora’s box of views held by potential jurors regarding the death penalty. Adams v. Texas, 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980); Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985); Morgan v. Illinois, 504 U.S. 719, 112 S.Ct. 2222, 119 L.Ed.2d 492 (1992). To require anything less would give to juries an untrammeled discretion to gut our statutory definitions of death eligibility and thereby raise the specter of Branch v. Texas, decided with Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). See also Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976).

Since veniremembers Terrell and Adams unequivocally stated an unwillingness to set aside views regarding death eligibility which conflict with the statutory definitions of those eligible for the sentence of death, they were biased against the law. The trial court did not abuse its discretion in dismissing them for cause. Appellant’s sixth and seventh points of error are overruled.

Appellant’s eighth point avers that the trial court erred in denying his challenge for cause to venireman S. Ambrosia. Appellant challenged Ambrosia on grounds that he was unable “to give weight to mitigating circumstances.”¹² Appellant objected at trial that because Ambrosia “strongly believes that a person is accountable for their own actions; notwithstanding, their background,” he would not give any “weight” to mitigating circumstances and was, thus, biased against the law. Besides being inadequately briefed,¹³ appellant’s argument is directly contrary to strong precedent holding that potential jurors are not challengeable for cause merely because they refuse to give weight to particular “mitigating” evidence. See, e.g., Coleman v. State, 881 S.W.2d 344 (Tex.Crim.App.1994); Allridge v. State, 850 S.W.2d 471, 481-82 (Tex.Crim.App.1991), cert. denied,—U.S.-, 114 S.Ct. 101, 126 L.Ed.2d 68 (1993). Moreover, though reluctant to give mitigating weight to background evidence, Ambrosia stated that he could consider certain, unspecified, facts to be mitigating and even conceded that background evidence would be helpful in determining whether the defendant was a future danger.¹⁴ The record supports the trial court’s decision. Appellant’s eighth point of error is overruled.

Appellant alleges in his ninth point that the trial court erred in denying his challenge for cause to venireman L. Ponzica. Appellant challenged Ponzica on grounds that he would be unable to disregard an unlawfully obtained confession, and was thus prejudiced against the law. Art. 35.16(c)(2); See McCoy v. State, 713 S.W.2d 940, 944 (Tex.Crim.App.1986), cert. denied, 480 U.S. 940, 107 S.Ct. 1590, 94 L.Ed.2d 779 (1987). The State responds that the record does not support appellant’s allegations; we agree. The record of Ponzica’s voir dire examination by appellant is confused and confusing. Pon-zica was never directly asked and never clearly stated that he could not set aside an illicit confession if instructed to do.¹⁵ When the record is confused, and without a clearly objectionable declaration by the venireman, we cannot second guess the trial court, and we must defer to the trial court’s understanding of what actually occurred. See Cantu v. State, 842 S.W.2d 667, 681-682 (Tex.Crim.App.1992), cert. denied,—U.S.-, 113 S.Ct. 3046, 125 L.Ed.2d 731 (1993), (citing, Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985). See also Trevino v. State, 815 S.W.2d 592, 614 (Tex.Crim.App.1991) (Unless the venireman was clearly instructed on what the law requires, it cannot be said that he could not follow the law). Rev’d on other grounds, 503 U.S. 562, 112 S.Ct. 1547, 118 L.Ed.2d 193 (1992). Since the record does not show a clear abuse of a trial court’s discretion, we will must affirm its decision. Appellant’s ninth point of error is overruled.

In his tenth point of error, appellant alleges that the trial court erred in denying his challenge for cause to venirewoman G. Vaughn. Appellant challenged Vaughn on grounds that she was prejudiced against the law upon which the State was entitled to rely because she had stated that to assess the death penalty she would require evidence “beyond all doubt” instead of evidence “beyond a reasonable doubt.”¹⁶ The State counters that appellant’s allegations are factually unfounded. We must agree that appellant’s factual assertions are not supported by the record. Vaughn never stated that she would require evidence beyond all doubt. She did maintain that to vote for the death penalty, she “would not want any doubt,” explaining that, “If the case had been proven beyond a reasonable doubt, then I should not have any type of sneaky suspicion that this isn’t right and something else is missing.” Vaughn’s requirement that proof beyond a reasonable doubt not leave her with any “sneaky suspicion that something is not right” is congruent with our definition of beyond a reasonable doubt. See Geesa v. State, 820 S.W.2d 154, 162 (Tex.Crim.App.1991) (Proof beyond a reasonable doubt is of such a convincing character that one would act upon it without hesitation in the most important of one’s affairs). Since the trial court’s denial of appellant’s challenge is supported by the record, we cannot hold that the trial court abused its discretion. Appellant’s tenth point of error is overruled.

In point eleven appellant avers the trial court erred in denying his challenge for cause to veniremember E. Quintanilla. Appellant challenged Quintanilla because of “his failure to note the distinction between intentional and deliberate.” See Satterwhite v. State, 858 S.W.2d 412, 417 (Tex.Crim.App.), cert. denied,—U.S.-, 114 S.Ct. 455, 126 (1993). The State again responds that appellant’s factual allegations are unsupported by the record. We agree with the State.

According to the record, Quintanilla stated that he did recognize a subtle legal distinction between the terms intentional and deliberate once it had been explained to him. Appellant then asked a number of confusing questions with the result that we cannot discern what Quintanilla ultimately answered.¹⁷ —On redirect examination by the State, Quintanilla was informed that what he had said could be understood to mean that once having found a defendant guilty of capital murder, he would automatically vote affirmatively on the special issues. Quintanilla balked at this interpretation, stating, “I don’t know if that’s what I said but that’s not what I meant.” The State explained the law to the venireman, and he emphatically stated that he could and would follow the law, holding the State to its burden of proof on each of the special issues.

The totality of Quintanilla’s voir dire suggests that he intended to follow the instructions of the court at each stage of the proceedings, and that he understood there to be a legal distinction between intentional and deliberate. If the voir dire is confused and the veniremember not clearly challengeable, and the veniremember states that he will meticulously follow the law after it is explained to him, the trial court has not abused its discretion. See Satterwhite, 858 S.W.2d at 417. Appellant’s eleventh point of error is overruled.

In point of error twelve appellant alleges that the trial court erred by not allowing him to ask a proper question during his voir dire examination of venireman J. Edwards. Appellant complains that he was not allowed to ask Edwards what he understood “life imprisonment” to mean. The State argues that error, if any was harmless, because appellant received an answer from the venireman without objection or interruption from the State immediately following his question.

Where a trial court does not permit a capital defendant to ask a venireman a proper question the court has erred because it has denied him the opportunity to intelligently exercise his peremptory strikes. Teague v. State, 864 S.W.2d 505, 511 (Tex.Crim.App.1993). However, such error is in a capital case subject to a harmless error analysis. Id. at 512; Gardner v. State, 730 S.W.2d 675 at 690 n. 9 (Tex.Crim.App.), cert. denied, 484 U.S. 905, 108 S.Ct. 248, 98 L.Ed.2d 206 (1987). Tex.R.App.P. 81(b)(2). Without addressing the propriety of appellant’s question, we hold that the court’s prohibition was harmless beyond a reasonable doubt. According to the record, without objection from the State, the venireman answered appellant’s question about what he understood the meaning of a life sentence to be as part of appellant’s next question. In his next question, appellant asked Edwards to explain his views on the effectiveness of life imprisonment as a deterrent in comparison to capital punishment. Edwards answered in part, “I think it’s universally known that [a] life sentence that doesn’t mean that a person goes to prison and remains there until the [sic] die a natural death.” Appellant’s twelfth point of error is overruled.

In his thirteenth point of error, appellant avers that the trial court erred in sustaining the State’s objection to the testimony of Dr. James W. Marquart and in excluding Marquart’s testimony. The State counters that Marquart’s intended testimony would not have assisted the jury in its deliberations and was properly excluded as irrelevant and confusing. Tex.R.Crim.Evid. 401 and 40B.

During the punishment phase of trial, appellant called Dr. Marquart, an associate professor of criminal justice at Sam Houston University. The State examined Marquart outside the presence of the jury, and established that Marquart did not intend to rebut any evidence, that he had not examined appellant or any material regarding appellant, and that he did not intend to testify specifically, through hypothetical or otherwise, about appellant or his personal situation. Marquart explained that he intended to testify that predictions about the future dangerousness of capital murder defendants, including predictions made by juries in answering the special issues under Article 37.071, had proven to be generally inaccurate. In essence, Marquart intended to testify that juries cannot accurately predict a criminal defendant’s future conduct. The State objected to this testimony on grounds that since Marquart had nothing to offer regarding whether appellant himself posed a continuing danger to society, his testimony would not assist the jury in its deliberations. The State argued that Marquart’s testimony was irrelevant and confusing. The trial court sustained the State’s objections and excluded Marquart’s testimony. On appellate review the trial court’s rulings admitting or excluding evidence are subject to an abuse of discretion standard. Matson v. State, 819 S.W.2d 839, 850 (Tex.Crim.App.1991). If the trial court’s decision was within the bounds of reasonable disagreement we will not disturb its ruling. Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App.1990).

Rule 401 of the Texas Rules of Criminal Evidence, defines relevant evidence as “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.” (emphasis added). To be relevant, evidence must be both probar-tive and material. See Goode et al. 1 Texas Rules of Civil and Criminal Evidence; Texas Practice §§ 401.1 & 401.2 (1993). If proffered evidence is not of consequence to a question at issue, it is immaterial, and thereby irrelevant. Id. See also McCormick, Evidence § 185 (4th ed. 1992). Marquart testified that he did not intend to address any characteristic or circumstance peculiar to appellant but to attack the validity of Article 37.071(b)(2) as a trustworthy indicator of deathworthiness. But, the validity of the special issue was not a question properly before the jury; as factfinder, the jury’s task was to determine whether appellant “would commit criminal acts of violence in the future which would constitute a continuing threat to society.” Art. 37.071(b)(2). That other juries have accurately or inaccurately predicted the danger posed by other defendants without an explanation specifically connecting the inaccurate predictions to appellant, was evidence of no consequence to the jury’s factual determination. Telling the jury that other juries have inaccurately predicted the threat posed by other defendants, is like telling it that juries have wrongly convicted innocent people; even if true, it is, nevertheless, of no consequence in determining whether the particular defendant being tried is guilty, or, by analogy, whether the defendant is a continuing danger. Because it did not address appellant’s individual propensity or lack of it for committing future acts of violence, such information simply is not of assistance in the factual determination before the jury. That is, Marquart’s testimony did not help prove or disprove that appellant posed a continuing danger to society.¹⁸ Thus, Marquart’s intended testimony also lacked probative value. If Marquart’s intended testimony had been particularized to illustrate that someone like appellant would not pose a continuing danger to society, then his testimony would have been applicable to an issue before the jury and have thereby been material and probative. Cf. Matson, 819 S.W.2d at 849 (hypothetical describing Matson). However, under Marquart’s own description of his testimony, a trial court could reasonably conclude that his intended testimony was neither material nor probative of the issue for which it was offered, or any other issue before the jury, and it, therefore, cannot be said that the trial court abused its discretion in excluding the testimony as irrelevant. Tex.R.Crim.Evid. 401.

Indeed, rather than assist in the jury’s factual determination of the danger posed to society by appellant, Marquart’s testimony would have confused and distracted the jury from its factfinding task. As Marquart himself described it, his intended testimony was in essence, if not form, an attack on the a constitutionality of Article 37.071. Marquart’s testimony raised policy and legal arguments against the validity of Article 37.071(b)(2) as an accurate determinant of death eligibility. Legal and policy questions are inappropriate before the fact-finder.¹⁹ Thus, it was reasonable for the trial court to conclude that the risks of confusing the jury about legal and factual issues and distracting it from its factfinding task substantially outweighed the probative value of Marquart’s testimony. Under these circumstances, the trial court did not abuse its discretion in excluding it. Tex.R.Crim.Evid. 403.

Appellant argues on appeal that his case is indistinguishable from Matson v. State, 819 S.W.2d 839 (Tex.Crim.App.1991). In Matson we reversed a capital murder conviction on grounds that the trial court had erred in excluding the testimony of a defense expert witness. But, appellant’s reliance on Matson is misplaced; his case is both factually and legally distinguishable. The distinction rests in the nature of Marquart’s testimony. Mat-son’s expert, Harlin, was an expert on rehabilitation. Harlin intended to testify that the rate of recidivism for youthful offenders is inversely proportional to the length of incarceration; he was prepared to testify through hypothetical facts that a defendant of Mat-son’s youth and with his record was a good candidate for rehabilitation through long incarceration and that statistically speaking, someone like Matson would probably not commit criminal acts of violence that would constitute a continuing threat to society. Id. at 848-849. On review the State argued that Harlin’s excluded testimony was “general” and not “particularized” to Matson; we rejected this argument as factually incorrect, pointing to Harlin’s testimony based on hypotheticals. Id. at 852-853. Unlike Har-lin, Marquart did not intend to testify about appellant’s individual profile within the context of his studies and research. As Marq-uart described it, he intended to testify about the general inability of juries to accurately predict future behavior and through this testimony to attack the “root core” of Article 37.071(b)(2). He did not intend to testify about appellant specifically. Thus, Marq-uart’s testimony was in fact general and not particularized and is factually distinguishable from Matson. This factual distinction underlies the legal distinction between the two cases.

The rationale for our holding in Matson was clear; Harlin’s testimony should not have been excluded because a jury must have before it “ ‘all possible relevant information’ about the individual defendant whose fate it must determine.” Id. at 850 quoting Jurek v. Texas, 428 U.S. 262, 271, 96 S.Ct. 2950, 2956, 49 L.Ed.2d 929 (1976) (emphasis added). We explained, that the jury could “not be precluded from considering, as a mitigating factor, aspects of a defendant’s character or record and any of the circumstances of the offense ” proffered as a basis for a sentence less than death. Id. quoting Lockett v. Ohio, 438 U.S. 586, 605, 98 S.Ct. 2954, 2965, 57 L.Ed.2d 973 (1978) (emphasis added). And, we concluded: “Lockett thus underscored Jurek’s recognition that the constitutionality of the Texas scheme ‘turns on whether the enumerated questions allow consideration of particularized mitigating factors.’ ” Id. quoting Jurek, 428 U.S. at 272, 96 S.Ct. at 2956 (emphasis added). That juries cannot accurately predict future dangerousness of other defendants is not a mitigating factor peculiar to appellant or his case. Thus, the legal concern of Matson, that a defendant not be precluded from presenting evidence of some mitigating aspect of his character or record, is not applicable in appellant’s case.

In conclusion, we hold that the trial court reasonably concluded that Marquart’s testimony was not of “consequence to the determination” of an issue in this case and did not abuse its discretion in excluding it as irrelevant. Tex.R.Crim.Evid. 401. Furthermore, the record also supports the trial court’s decision to exclude Marquart’s testimony because its probative value was substantially outweighed by the danger of confusion of the issues. Tex.R.Crim.Evid. 403. Appellant’s thirteenth point of error is overruled.

In his fifteenth point of error appellant argues that the trial court erred in refusing to define the term deliberately in its jury instructions at the punishment phase of his trial. Since we have repeatedly and at length addressed this issue, deciding it against appellant, and since appellant presents no novel argument, we refer him to our precedent. See, e.g., Chambers, 866 S.W.2d at 27. Holding that the trial court did not err in failing to define deliberate, we overrule appellant’s fifteenth point of error.

The judgment of the trial court is affirmed.

OVERSTREET, J., dissents.

1 . All article references are to the Texas Code of Criminal Procedure unless otherwise indicated.

2 . Appellant’s argument invites us to reweigh the mitigating evidence against the aggravating evidence. We have long rejected such arguments as inappropriate, explaining that if the jury’s verdict is to be respected, it must be upheld if supported by the evidence even if with "some trepidation." Burns v. State, 761 S.W.2d 353, 356-357 (Tex.Crim.App.1988).

3 . The evidence suggests that both the present murders and the murder of Wilson occurred in some relationship to drug dealings.

4 . The admissibility of extraneous offense evidence offered at punishment in capital murder cases is governed by Article 37.071(a) of the Texas Code of Criminal Procedure. Kemp v. State, 846 S.W.2d 289, 307 (Tex.Crim.App.1992). The trial judge has wide latitude in admitting or excluding such evidence, whether it is adjudicated or unadjudicated. Id. But, the State must still "clearly prove” that an offense was committed and that the accused was its perpetrator. Id. Cf. Harrell v. State, 884 S.W.2d 154, 158-159 (Tex.Crim.App.1994) (clearly means beyond a reasonable doubt). And, Article 37.071(a) does not negate the requirements that the evidence be relevant to the jury’s determination of a capital defendant's deathworthiness and that its probative value is substantially outweighed by its inflammatory or prejudicial potential. Id. See also Tex.R.Crim.Evid. 401, 402, and 403; See also S. Goode, et al., 1 Texas Rules of Civil and Criminal Evidence; Texas Practice Sec. 404.7 (1993).

5 . Rule 401 provides:

"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.

6 . Indeed the evidence suggests that the murder of Wilson occurred in the course of an illegal drug transaction; likewise the evidence suggests that illegal drugs also had a part in the murders for which appellant is being tried.

7 . Appellant does not raise specific arguments under the Texas Constitution or the Texas Code of Criminal Procedure. Having raised no distinct State arguments, we will not address this point on these grounds. Johnson v. State, 853 S.W.2d 527, 533 (Tex.Crim.App.1992); Tex.R.App.P. 74 and 210.

8 . Appellant complained in point three that the trial court had not entered its “Findings of Fact and Conclusions of Law” regarding its denial of his Motion to Suppress his written confession as required by Article 38.22 § 6. This point is moot; the trial court entered its "Findings of Fact and Conclusions of Law” on October 7, 1994. Appellant's third point of error is overruled.

9 . Wilson v. State, 863 S.W.2d 59 (Tex.Crim.App.1993); Sigler v. State, 865 S.W.2d 957 (Tex.Crim.App.1993); Ransom v. State, No. 71,633, 1994 WL 259057 (Tex.Crim.App. June 15, 1994) mot. reh’g granted on other grounds.

10 . In so far as the resolution of the challenge to veniremember Smith in Sigler, 865 S.W.2d at 961, conflicts with our holding today, it is overruled. This does not affect the result of Sigler, however, since the dismissal of venireman Johnson was clearly in violation of Garrett. Sigler, 865 S.W.2d at 960-961.

11 . Appellant seems to argue in part that Garrett overrules Fuller in so far as Garrett stands for the principle that jurors are free to determine the quantum of evidence required to convince them beyond a reasonable doubt that a defendant is a future danger. But, framing the argument in terms of the quantum of evidence required to prove future dangerousness beyond a reasonable doubt is not dispositive. The question remains whether the venireman’s views conflict with the law. Even a juror’s views on the quantum of evidence required to convince him beyond a reasonable doubt do not allow him to displace the law and create his own categories of death eligibility. Defining the offense of capital murder punishable by death remains the duty of the legislature. Where the personal beliefs of a potential juror conflict with the law, rendering him unable to perform his duties under the law, the law prevails.

And, though a juror may choose to give whatever weight he wishes to particular evidence, he may not foreclose completely, through some personal bias, consideration of any evidence introduced at trial. If a potential juror states that he can never affirmatively answer an issue unless specific evidence which he requires is introduced, (e.g., that the defendant is a serial killer), he has foreclosed consideration of other evidence of future dangerousness. And thus, again, his views conflict with the law.

12 .In points of error eight through twelve appellant alleges in various grounds that the trial court reversibly erred in denying his challenges for cause to various veniremembers. We note that appellant's assertion of what is required to preserve error under these circumstances is incorrect. Appellant failed to note that he had to request additional peremptories after exhausting those given him by the trial court. See, e.g., Chambers v. State, 866 S.W.2d 9, 20 (Tex.Crim.App.1993). However, our review of the record does establish that appellant properly preserved error on these points.

13 . Appellant only cites Skipper v. South Carolina, 476 U.S. 1, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986) in support of his argument, but it was decided on grounds that the trial court denied the admission of mitigating evidence not that a venireman could not consider specific mitigating evidence. 476 U.S. at 4, 106 S.Ct. at 1670-1671.

14 . Appellant’s voir dire examination as to whether Ambrosia could consider mitigating evidence was exclusively phrased in terms of the weight he would give appellant’s "background.” Background is not synonymous with mitigating evidence, and how much weight a venireman might give particular evidence is not asking whether he will consider mitigating evidence.

15 . Appellant's counsel asked whether Ponzica could follow the court’s instruction if the only evidence of guilt was an illegal confession and the court instructed the jury to disregard that confession and enter a not guilty verdict. Ponzi-ca answered, "I guess it's a loop hole. It's there for you to use and it happens.” Counsel replied, “Yeah.” Id. Ponzica then stated, "I guess you'd have to in that situation." Id. Whether he meant that the defense would have to avail themselves of the legal technicality or that a juror would have to follow the court's instruct is unclear. Appellant’s counsel, apparently also confused by the answer, attempted to clarify Ponzi-ca’s meaning. He asked, "What I’m attempting to do at this time, sir, is to see what you’d do. How you’d feel about it. Do you agree with that?” Naturally the venireman answered this multifarious question with an ambiguous response, stating that he would "not like it.” Id. When Ponzica stated that he was confused about what the law required him to do, appellant’s counsel attempted to inform him, stating, "Nobody is going to grab your hand and put it down there.... You would be instructed to and you either follow instructions or you wouldn't.” This explanation only confused the venireman further, with the result that Ponzica never clearly stated that he could not follow instructions to disregard an illegal confession. He did state that regardless of the instruction, he would still like to find the defendant guilty of murder since the evidence proved beyond a reasonable doubt that he was guilty. What the venireman would like to do is irrelevant. Whether he can follow the law as instructed is the question, and it was not answered. See Riley v. State, 889 S.W.2d 290 (Tex.Crim.App.1993).

16 . Because of the resolution of this point, it was unnecessary for us to reach the question of whether the defense may challenge a venire-member on grounds that they are prejudiced against the law upon which the State is entitled to rely.

17 . At the Defense’s prompting, Quintanilla attempted to articulate a distinction based on his understanding that deliberate means that "he meant to do it ... He didn't aim to hit him in the ankle, he meant to put him out.” Defense counsel then confused the venireman, telling him that his example of deliberate also meant intentional. We here note our own confusion; since all definitions of "deliberate” necessarily include the lesser mens rea of intentional, counsel's remark to the venireman was meaningless, and served only to confuse the venireman. The venireman then stated that he did not know what the difference was. Appellant then asked Quintanilla some very confused questions, the various interpretations of which we will not attempt to untangle.

18 . Similarly, Dr. Marquart’s testimony was not proper expert testimony as it is described in Rule 702. Tex.R.Crim.Evid.

If scientific, technical, or other specialized knowledge will assist the trier of fact to under-

stand the evidence or to determine a fact in issue, a witness ... may testify.

Dr. Marquart's testimony was not intended to assist the jury to understand evidence or to determine a fact in issue.

19 . The policy issue is within the providence of the legislature and executive; the statute and its recent amendments indicates their policy determinations. See now 37.071 § 2(b)(1). The legal questions are, of course, within the providence of the courts; we agree with the United States Supreme Court’s view that the future dangerousness question is appropriate. Jurek v. Texas, 428 U.S. 262 at 276-277, 96 S.Ct. 2950 at 2958-2959, 49 L.Ed.2d 929 (1976).