Thomas, Kenneth Dewayne

• Court: Court of Appeals of Texas
• Decided: September 27, 2016
• Docket: AP-77,047
• Status: Published

Opinion

AP-77,047 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 9/16/2016 9:28:49 AM Accepted 9/16/2016 10:28:08 AM September 16, 2016 ABEL ACOSTA ORAL ARGUMENT IS REQUESTED CLERK

No. AP-77,047

IN THE COURT OF CRIMINAL APPEALS September 27, 2016

OF TEXAS

KENNETH WAYNE THOMAS, APPELLANT V. THE STATE OF TEXAS, APPELLEE

On appeal from the 194th Judicial District Court of Dallas County, Texas In Cause No. F86-85539

STATE’S BRIEF

Counsel of Record: Susan Hawk Christine Womble Criminal District Attorney Assistant District Attorney Messina Madson State Bar No. 24035991 First Assistant Frank Crowley Courts Building Criminal District Attorney 133 N. Riverfront Blvd., LB-19 Dallas County, Texas Dallas, Texas 75207-4399 (214) 653-3625 (214) 653-3643 fax CWomble@dallascounty.org

Attorneys for the State of Texas TABLE OF CONTENTS

Index of Authorities ....................................................................... vii-xviii

Statement Regarding Oral Argument ..................................................... 1

Statement of the Case ............................................................................... 1

Statement of Facts ............................................................................... 1-44

Summary of the Argument ................................................................ 44-49

Argument................................................................................................. 49

State’s Response to Issue Nos. 1-7: ......................................................... 49

THE TRIAL COURT DID NOT ERR IN DENYING APPELLANT’S BATSON CHALLENGES.

State’s Response to Issue Nos. 9-23: ....................................................... 78

THE TRIAL COURT DID NOT ERR IN DENYING APPELLANT’S CHALLENGES FOR CAUSE.

State’s Response to Issue Nos. 24-30: ................................................... 140

THE TRIAL COURT DID NOT ERR IN GRANTING THE STATE’S CHALLENGES FOR CAUSE.

State’s Response to Issue No. 31:.......................................................... 168

THE SUPREME COURT’S DECISION IN HALL V. FLORIDA DID NOT INVALIDATE THIS COURT’S DECISION IN EX PARTE BRISENO.

ii State’s Response to Issue Nos. 32-34: ................................................... 178

THE TRIAL COURT DID NOT ERR IN OVERRULING APPELLANT’S MOTION TO QUASH, HIS MOTION TO RE-QUESTION JURORS, AND HIS MOTION TO LIMIT THE STATE’S VOIR DIRE.

State’s Response to Issue Nos. 35-36: ................................................... 187

APPELLANT WAS NOT DEPRIVED OF A LAWFULLY CONSTITUTED JURY.

State’s Response to Issue No. 37:.......................................................... 188

THE TRIAL COURT DID NOT ERR IN DENYING APPELLANT’S MOTION TO DISQUALIFY THE DISTRICT ATTORNEY’S OFFICE.

State’s Response to Issue No. 38:.......................................................... 195

THE TRIAL COURT PROPERLY OVERRULED APPELLANT’S MOTION FOR MISTRIAL DURING APPELLANT’S COMPETENCY TRIAL.

State’s Response to Issue No. 39:.......................................................... 202

APPELLANT’S CLAIM THAT THE TRIAL COURT ERRED IN OVERRULING HIS OBJECTION DURING THE COMPETENCY TRIAL IS NOT PROPERLY BEFORE THE COURT.

State’s Response to Issue Nos. 40-41: ................................................... 205

THE EVIDENCE WAS SUFFICIENT TO PROVE APPELLANT’S COMPETENCY TO STAND TRIAL.

iii State’s Response to Issue No. 42:.......................................................... 227

THE TRIAL COURT PROPERLY OVERRULED APPELLANT’S OBJECTION TO DR. PRICE’S TESTIMONY THAT APPELLANT EXHIBITS TRAITS CONSISTENT WITH ANTI-SOCIAL PERSONALITY DISORDER.

State’s Response to Issue No. 43:.......................................................... 238

DR. PRICE DID NOT TESTIFY BEFORE THE JURY REGARDING APPELLANT’S REMORSE.

State’s Response to Issue No. 44:.......................................................... 240

THE TRIAL COURT DID NOT ERR IN ADMITTING A SILHOUETTE OF A KNIFE AS A DEMONSTRATIVE AID.

State’s Response to Issue No. 45:.......................................................... 247

THE TRIAL COURT PROPERLY ADMITTED THE AUTOPSY PHOTOGRAPHS. ALTERNATIVELY, ANY ERROR IS HARMLESS.

State’s Response to Issue No. 46:.......................................................... 254

THE TRIAL COURT DID NOT ERR IN OVERRULING APPELLANT’S OBJECTION TO THE TESTIMONY OF JAMES BELT, SR.

State’s Response to Issue Nos. 47-48: ................................................... 261

APPELLANT IS NOT INTELLECTUALLY DISABLED.

iv State’s Response to Issue No. 49:.......................................................... 278

THE EVIDENCE IS LEGALLY SUFFICIENT TO SUPPORT THE JURY’S FINDING THAT APPELLANT IS A FUTURE DANGER.

State’s Response to Issue No. 50:.......................................................... 282

THE TRIAL COURT DID NOT ERR IN DENYING APPELLANT’S REQUESTED JURY INSTRUCTION.

State’s Response to Issue No. 51:.......................................................... 287

THE TRIAL COURT DID NOT ERR IN DENYING APPELLANT’S REQUEST THAT THE JURY BE ALLOWED TO ENTER A NON- UNANIMOUS VERDICT REGARDING THE INTELLECTUAL DISABILITY SPECIAL ISSUE.

State’s Response to Issue No. 52:.......................................................... 291

THE TRIAL COURT DID NOT ERR IN DENYING APPELLANT’S REQUEST FOR AN ACCOMPLICE WITNESS INSTRUCTION.

State’s Response to Issue No. 53:.......................................................... 293

THE TRIAL COURT DID NOT ERR IN DENYING APPELLANT’S REQUEST FOR AN ANTI-PARTIES INSTRUCTION IN THE CHARGE.

State’s Response to Issue No. 54:.......................................................... 295

THE TRIAL COURT DID NOT ERR IN DENYING APPELLANT’S REQUEST FOR A SECOND COMPETENCY HEARING.

State’s Response to Issue No. 55:.......................................................... 304

APPELLANT’S CLAIM THAT THE EVIDENCE IS INSUFFICIENT TO SUPPORT HIS CONVICTION FOR CAPITAL MURDER PRESENTS NOTHING FOR THIS COURT’S REVIEW.

v State’s Response to Issue Nos. 56-67: ................................................... 305

THE TRIAL COURT PROPERLY DENIED APPELLANT’S CHALLENGES TO THE DEATH PENALTY STATUTE.

Prayer .................................................................................................... 310

Certificate of Compliance ...................................................................... 311

Certificate of Service ............................................................................. 311

vi INDEX OF AUTHORITIES

Cases

Adanandus v. State, 866 S.W.2d 210 (Tex. Crim. App. 1993).......................................... 56-57

Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1985) (op. on reh’g) ...................... 286

Apprendi v. New Jersey, 530 U.S. 466 (2000) ............................................................................ 307

Atkins v. Virginia, 536 U.S. 304 (2002) ............................................................................ 170

Baker v. State, 177 S.W.3d 113 (Tex. App.—Houston [1st Dist.] 2005, no pet.) ....... 243

Barber v. State, 757 S.W.2d 359 (Tex. Crim. App. 1988)..................................... 200, 201

Barnes v. State, 876 S.W.2d 316 (Tex. Crim. App. 1994)............................................. 106

Batson v. Kentucky, 476 U.S.79 (1986) ......................................................................... passim

Belyeu v. State, 791 S.W.2d 66 (Tex. Crim. App. 1989) .............................................. 294

Bodde v. State, 568 S.W.2d 344 (Tex. Crim. App. 1978)..................................... 183, 186

Bone v. State, 77 S.W.3d 828 (Tex. Crim. App. 2002) ................................................ 66

vii Brandon v. State, 599 S.W.2d 567 (Tex. Crim. App. 1979)............................................. 199

Broadnax v. State, No. AP-76,207, 2011 Tex. Crim. App. Unpub. LEXIS 920 (Tex. Crim. App. Dec. 14, 2011) (not designated for publication) ..................... 67-68

Butcher v. State, 454 S.W.3d 13 (Tex. Crim. App. 2015) ...................................... 217, 225

Callaway v. State, 594 S.W.2d 440 (Tex. Crim. App. 1980)..................................... 199, 200

Chambers v. State, 866 S.W.2d 9 (Tex. Crim. App. 1993) .................................................. 53

Cherry v. State, 959 So. 2d 702 (Fla. 2007) (per curiam)............................................. 173

Clark v. State, 929 S.W.2d 5 (Tex. Crim. App. 1996) ................................................ 146

Coble v. State, 330 S.W.3d 253 (Tex. Crim. App. 2010)............................................. 205

Colburn v. State, 966 S.W.2d 511 (Tex. Crim. App. 1998)....................................... 80, 145

Coleman v. State, 246 S.W.3d 76 (Tex. Crim. App. 2008) .............................................. 191

Cordova v. State, 733 S.W.2d 175 (Tex. Crim. App. 1987)..................................... 122, 127

Devoe v. State, 354 S.W.3d 457 (Tex. Crim. App. 2011)..................................... 279, 281

viii Easley v. State, 424 S.W.3d 535 (Tex. Crim. App. 2014)............................................. 183

Easton v. State, 920 S.W.2d 747 (Tex. App.—Houston [1st Dist.] 1996, pet. ref’d) ..... 304

Escamilla v. State, 143 S.W.3d 814 (Tex. Crim. App. 2004)............................... 81, 249, 309

Estrada v. State, 313 S.W.3d 274 (Tex. Crim. App. 2010)............................................. 257

Ex parte Briseno, 135 S.W.3d 1 (Tex. Crim. App. 2004) .......................................... passim

Ex parte Cathey, 451 S.W.3d 1 (Tex. Crim. App. 2014) .........174, 176, 264, 272, 276, 277

Ex parte Hagans, 558 S.W.2d 457 (Tex. Crim. App. 1977)............................................. 199

Ex parte Hearn, 310 S.W.3d 424 (Tex. Crim. App. 2010)..................................... 175, 264

Ex parte Lizcano, No. WR-68,348-03, 2015 Tex. Crim. App. Unpub. LEXIS 331 (Tex. Crim. App. Apr. 15, 2015) (Alcala, J., dissenting) (not designated for publication)......................................................................................... 176

Ex parte Moore, 470 S.W.3d 481 (Tex. Crim. App. 2015), cert. granted in part, 136 S. Ct. 2407 (2016) ................................................... 174, 175, 178, 263, 264

Ex parte Sosa, 364 S.W.3d 889 (Tex. Crim. App. 2012)............................................. 178

Ex parte Tennard, 960 S.W.2d 57 (Tex. Crim. App. 1997) .............................................. 266

ix Ex parte Thomas, No. AP-76,405, 2010 Tex. Crim. App. Unpub. LEXIS 452 (Tex. Crim. App. Aug. 25, 2010) (not designated for publication) ........................ 305

Ex parte Woods, 296 S.W.3d 587 (Tex. Crim. App. 2009)............................................. 175

Feldman v. State, 71 S.W.3d 738 (Tex. Crim. App. 2002) ............................ 79, 80, 96, 137

Furman v. Georgia, 408 U.S. 238 (1972) ............................................................................ 308

Gallo v. State, 239 S.W.3d 757 (Tex. Crim. App. 2007)............................................. 290

Garcia v. State, 887 S.W.2d 862 (Tex. Crim. App. 1994) 183-84, 193, 232, 240, 292, 294

Gardner v. State, 306 S.W.3d 274 (Tex. Crim. App. 2009)................. 80, 96, 115, 136, 137

Gonzales v. State, 353 S.W.3d 826 (Tex. Crim. App. 2011)............................. 104, 139, 141

Good v. State, 723 S.W.2d 734 (Tex. Crim. App. 1986)............................................... 99

Goodman v. State, 701 S.W.2d 850 (Tex. Crim. App. 1985)...................................... 199-200

Goodwin v. State, 799 S.W.2d 719 (Tex. Crim. App. 1990)..................................... 149, 152

Granados v. State, 85 S.W.3d 217 (Tex. Crim. App. 2002) .............................. 146, 160, 165

x Gray v. State, 233 S.W.3d 295 (Tex. Crim. App. 2007)............................................. 188

Griffith v. State, 983 S.W.2d 282 (Tex. Crim. App. 1998)........................................ 235-36

Guevara v. State, 97 S.W.3d 579 (Tex. Crim. App. 2003) ...................................... 203, 245

Hall v. Florida, 134 S. Ct. 1986 (2014) .................................................................. passim

Hawkins v. State, 135 S.W.3d 72 (Tex. Crim. App. 2004) .............................................. 198

Hernandez v. New York, 500 U.S. 352 (1991) ........................................................................ 53, 64

Hernandez v. State, 757 S.W.2d 744 (Tex. Crim. App. 1988)............................................. 200

Howard v. State, 153 S.W.3d 382 (Tex. Crim. App. 2004)............................................. 239

Hunter v. State, 243 S.W.3d 664 (Tex. Crim. App. 2007)............................................. 289

In re Allen, 462 S.W.3d 47 (Tex. Crim. App. 2015) .............................................. 174

Johnson v. State, 68 S.W.3d 644 (Tex. Crim. App. 2002) ................................................ 56

Johnson v. State, 429 S.W.3d 13 (Tex. App.—Houston [1st Dist.] 2013, no pet.) .......... 302

Jones v. State, 982 S.W.2d 386 (Tex. Crim. App. 1998)....................................... passim

xi Kelly v. State, 824 S.W.2d 568 (Tex. Crim. App. 1992)............................................. 232

King v. State, 29 S.W.3d 556 (Tex. Crim. App. 2000) ................. 149, 152, 154, 156-59

King v. State, 953 S.W.2d 266 (Tex. Crim. App. 1997)............................................. 279

Ladd v. State, 3 S.W.3d 547 (Tex. Crim. App. 1999) ... 106, 139, 167-68, 198, 253, 278

Landers v. State, 256 S.W.3d 295 (Tex. Crim. App. 2008)..................................... 194, 195

Martinez v. State, 327 S.W.3d 727 (Tex. Crim. App. 2010)........................................ 278-79

Martinez v. State, 899 S.W.2d 655 (Tex. Crim. App. 1994)............................................. 294

Martinez v. State, 924 S.W.2d 693 (Tex. Crim. App. 1996)............................................. 279

Mathis v. State, 67 S.W.3d 918 (Tex. Crim. App. 2002) ................................................ 55

Matlock v. State, 392 S.W.3d 662 (Tex. Crim. App. 2013)..................................... 217, 218

Mendoza v. State, 552 S.W.2d 444 (Tex. Crim. App. 1977)..................................... 182, 185

Meraz v. State, 785 S.W.2d 146 (Tex. Crim. App. 1990)............................................. 218

Miller-El v. Dretke, 545 U.S. 231 (2005) .................................................................. 59, 65, 77

xii Montgomery v. State, 810 S.W.2d 372 (Tex. Crim. App. 1990)............................................. 231

Morris v. State, 301 S.W.3d 281 (Tex. Crim. App. 2009)............................................. 225

Mosley v. State, 983 S.W.2d 249 (Tex. Crim. App. 1998)........................................ 256-59

Murphy v. Florida, 421 U.S. 794 (1975) ............................................................................ 116

Neal v. State, 256 S.W.3d 264 (Tex. Crim. App. 2008)................................ 261-64, 277

Nenno v. State, 970 S.W.2d 549 (Tex. Crim. App. 1998)............................................. 232

Nieto v. State, 365 S.W.3d 673 (Tex. Crim. App. 2012).......................................... 57-58

Owens v. State, 473 S.W.3d 812 (Tex. Crim. App. 2015)............................................. 199

Payne v. Tennessee, 501 U.S. 808 (1991) ............................................................................ 257

Powell v. State, 898 S.W.2d 821 (Tex. Crim. App. 1994)............................................. 236

Purkett v. Elem, 514 U.S. 765 (1995) .............................................................................. 54

Rachal v. State, 917 S.W.2d 799 (Tex. Crim. App. 1996)............................................. 145

Reed v. Quarterman, 555 F.3d 364 (5th Cir. 2009) .......................................................... 50, 64

xiii Romero v. State, 800 S.W.2d 539 (Tex. Crim. App. 1990)............................................. 230

Ross v. State, 133 S.W.3d 618 (Tex. Crim. App. 2004)............................................. 300

Sadler v. State, 977 S.W.2d 140 (Tex. Crim. App. 1998)............................................. 141

Salazar v. State, 90 S.W.3d 330 (Tex. Crim. App. 2002) .............................................. 257

Saldano v. State, 232 S.W.3d 77 (Tex. Crim. App. 2007) ....... 80-81, 83, 90, 139, 305, 309

Sanders v. State, 832 S.W.2d 719 (Tex. App.—Austin 1992, no pet.) ................... 304, 305

Santellan v. State, 939 S.W.2d 155 (Tex. Crim. App. 1997)............................................. 252

Scarborough v. State, 54 S.W.3d 419 (Tex. App.—Waco 2001, pet. ref’d) ............................ 193

Shuffield v. State, 189 S.W.3d 782 (Tex. Crim. App. 2006)............................................. 231

Simmons v. State, 622 S.W.2d 111 (Tex. Crim. App. 1981)..................................... 243, 245

Solomon v. State, 49 S.W.3d 356 (Tex. Crim. App. 2001) .............................................. 237

State ex rel. Eidson v. Edwards, 793 S.W.2d 1 (Tex. Crim. App. 1990) ........................................ 191, 192

State ex. rel. Hill v. Pirtle, 887 S.W.2d 921 (Tex. Crim. App. 1994)..................................... 191, 194

xiv Tamez v. State, 27 S.W.3d 668 (Tex. App.—Waco 2000, pet. ref’d) ............................ 183

Threadgill v. State, 146 S.W.3d 654 (Tex. Crim. App. 2004)....................................... passim

Torres v. State, 116 S.W.3d 208 (Tex. App.—El Paso 2003, no pet.) .................. 243, 244

Turner v. State, 422 S.W.3d 676 (Tex. Crim. App. 2013)..................................... 199, 299

United States v. Figueroa, 618 F.2d 934 (2nd Cir. 1980) .............................................................. 231

Vollbaum v. State, 833 S.W.2d 652 (Tex.App.—Waco 1992, pet. ref'd) ........................... 243

Walder v. State, 85 S.W.3d 824 (Tex. App.—Waco 2002, no pet.)................................ 235

Waldo v. State, 746 S.W.2d 750 (Tex. Crim. App. 1988)............................................. 201

Walters v. State, 247 S.W.3d 204 (Tex. Crim. App. 2007)............................................. 237

Watkins v. State, 245 S.W.3d 444 (Tex. Crim. App. 2008)....................................... passim

Weatherred v. State, 15 S.W.3d 540 (Tex. Crim. App. 2000) .............. 185, 230, 246, 253, 286

Williams v. State, 191 S.W.3d 242 (Tex. App.—Austin 2006, no pet.) ........................... 225

Williams v. State, 270 S.W.3d 112 (Tex. Crim. App. 2008)..................................... 171, 290

xv Witherspoon v. Illinois, 391 U.S. 510 (1968) ............................................................................ 145

Wood v. State, 18 S.W.3d 642 (Tex. Crim. App. 2000) .............................................. 198

Woodward v. Epps, 580 F.3d 318 (5th Cir. 2009) ........................................................... 61-62

Young v. State, 826 S.W.2d 141 (Tex. Crim. App. 1991)............................................... 64

Zamora v. State, 411 S.W.3d 504 (Tex. Crim. App. 2013)............................................. 293

Constitutional Provisions

Tex. Const. art. I.................................................................................... 306

U.S. Const. amend. VIII ............................................................... 170, 306

U.S. Const. amend. XIV ....................................................................... 306

Statutes

Tex. Code Crim. Proc. Ann. art. 35.16(a)(9) (West 2006) ....................... 79

Tex. Code Crim. Proc. Ann. art. 35.16(b) (West 2006) .................... 140-41

Tex. Code Crim. Proc. Ann. art. 35.16(c)(2) (West 2006) ........................ 79

Tex. Code Crim. Proc. Ann. art. 36.14 (West 2007) ...................... 284, 285

Tex. Code Crim. Proc. Ann. art. 37.0711, §3(b)(2)(West Supp. 2015) ... 94, 278

xvi Tex. Code Crim. Proc. Ann. art. 37.0711, §3(c) (West Supp. 2015) ...... 278

Tex. Code Crim. Proc. Ann. art. 37.0711, §3(e) (West Supp. 2015)....... 94, 306-08

Tex. Code Crim. Proc. Ann. art. 37.0711, §3(f) (West Supp. 2015) . 306-08

Tex. Code Crim. Proc. Ann. art. 37.0711, §3(j) (West Supp. 2015) .......... 1

Tex. Code Crim. Proc. Ann. art. 38.08 (West 2005) ................................ 99

Tex. Code Crim. Proc. Ann. art. 38.14 (West 2005) .............................. 292

Tex. Code Crim. Proc. Ann. art. 46B.003(a) (West 2006) .... 204, 216, 220, 298-99, 301

Tex. Code Crim. Proc. Ann. art. 46B.003(b) (West 2006) ..... 216, 217, 298

Tex. Code Crim. Proc. Ann art. 46B.024(1) (West Supp. 2015) ........... 217

Tex. Health & Safety Code Ann. §591.003(1) (West Supp. 2015) ........ 266

Tex. Health & Safety Code Ann. §591.003(7-a) (West Supp. 2015) .... 170, 263

Tex. Health & Safety Code Ann. §591.003(20) (West Supp. 2015) ...... 264

Tex. Loc. Gov’t Code Ann. §87.013 (West 2008) ................................... 191

Tex. Loc. Gov’t Code Ann. §87.018(a) (West 2008) ............................... 191

Tex. Penal Code Ann. § 19.03(a)(2) (West Supp. 2015) .......................... 93

Rules

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

xvii Tex. R. App. P. 38.1(i)...................................................................... passim

Tex. R. App. P. 44.2(b) ........................................... 237, 238, 247, 254, 260

Tex. R. Civ. P. 292 ................................................................................. 290

Tex. R. Evid. 103 ........................................................................... 237, 260

Tex. R. Evid. 401 .................................................................................. 203

Tex. R. Evid. 403.................................................................... 231, 245, 257

Tex. R. Evid. 702 ...................................................................... 230-31, 232

Tex. R. Evid. 705(b) ............................................................................... 233

xviii TO THE HONORABLE COURT OF CRIMINAL APPEALS:

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

Appellant, Kenneth Wayne Thomas.

STATEMENT REGARDING ORAL ARGUMENT

The State requests the opportunity to present oral argument if the

Court grants Appellant’s request to argue.

STATEMENT OF THE CASE

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

Code Crim. Proc. Ann. art. 37.0711, § 3(j) (West Supp. 2015). The trial

court sentenced Appellant to death on July 23, 2014 for the capital

murder of Mildred Finch. (CR:88-89; RR70:84-85).1 Appellant filed his

brief on direct appeal on June 22, 2015. He filed an amended brief on

August 24, 2016. Appellant presents sixty-seven allegations of

reversible error.

STATEMENT OF FACTS

On or about March 16, 1986, Kenneth Wayne Thomas

(hereinafter, “Appellant”), broke into the home of Fred and Mildred

1The State will refer to the Clerk’s Record filed on December 23, 2014 as “CR,” the Clerk’s Record filed on October 27, 2015 as “CR2,” the Clerk’s Record filed on November 30, 2015 as “CR3,” the Clerk’s Record filed on March 3, 2016 as “CR4,” and the Sealed Clerk’s Record as “CR-S.” 1 Finch. Fred and Mildred were home at the time of the burglary and

Appellant stabbed and killed them both.

Fred and Mildred

At the time of their death, Fred and Mildred Finch had been

married for many years. (RR68:221). Fred and Mildred were both in

their mid-60s and they shared a small house on Rose Lane, the home

that they purchased in the 1950s. (RR60:31; RR68:223-25; SX34A).

Mildred, a smart and strong-willed woman with a master’s degree in

math and science, was a Professor of Mathematics at El Centro College.

(RR68:224; SX2). Fred, a World War II veteran and former Tuskegee

airman, was a Harvard-educated lawyer who had worked to integrate

schools and hotels in Dallas. (RR68:221-22; SX1). Fred and Mildred

had one child, a daughter named Molly. (RR68:221). Molly married

James Belt, Jr. (RR68:220-21). Molly and James gave Fred and

Mildred two grandchildren, James III and Melanie. (RR68:226).

On Sunday, March 16, 1986, the Belt family attended the 8:00

a.m. services at their church. (RR68:227). Afterward, Molly planned to

take Mildred to the mall. (RR68:227). James stayed behind at the

church to attend Sunday school. (RR68:227). He would get a ride

2 home with a friend later. (RR68:227). While James was waiting for

his ride, he was notified that he had a phone call. (RR68:227). It was

Melanie. (RR68:226, 228). Melanie said that James needed to come to

Rose Lane immediately. (RR68:228).

When James arrived, Molly, Melanie, and James III were in front

of the house. (RR68:228). A police officer was there. (RR68:228).

James went to the back door and asked whether the officer had been

inside the house. (RR68:228). The officer had not. (RR68:228).

James noticed that the back door was open and Fred’s car was in the

driveway. (RR68:228). At that point, James knew something was

wrong so he went inside the house. (RR68:228). James described the

scene:

I guess I was on my knees or crawling or something, and I crawled through the kitchen. When I got midway through the kitchen, at the end of the kitchen, I saw [Mildred]. Oh, God. She was laying on the floor, and blood was everywhere. Blood was everywhere: On the floor, on the wall, on the ceiling. It was everywhere. When I touched her, she was cold. I felt her pulse. She was dead.

I went into the bedroom. [Fred] was dead. Bed was just covered with blood. Blood was on the floor, it was on the wall, it was on the ceiling. It was everywhere.

3 ...

In the living room, there was clothes piled up everywhere. In the bedroom, the drawers had been pulled out. There were clothes and things on the floor. I could tell that the house had just been ramshacked (sic).

(RR68:228-29). Fred and Mildred appeared to have been stabbed

multiple times. (RR60:34).

Mildred’s body was found lying in the hallway, up against the

wall. (RR60:40, 65-66, 72-75; RR63:11; SX48-53). Detective Gallagher

testified:

There was blood everywhere. There was blood on the walls. There were smears on the baseboards. She was wrapped in some sheets and some blankets, and you could still see multiple stab wounds all over her. It was a mess.

(RR60:40; SX50, 51). Several feet from her body was “a bloody palm

print or fingerprint on the hallway wall.” (RR60:43).

Fred’s body was found in the bedroom, lying on the floor about five

feet from Mildred. (RR60:40-41, 76; RR63:11; SX42-47). That scene

was described as follows:

Mr. Finch suffered multiple stab wounds. He was almost in a kneeling-type position on the floor, with his head down on the floor. There were blankets and everything. Disarray. It was blood everywhere in there. He had pajamas on, but his 4 pajamas were down around his ankles or his calves. So his bare buttocks was very obvious to me, as I peered down the hallway.

(RR60:41). There was blood on the bed, the walls, and the floor.

(RR60:41; RR63:12). There was blood “up and down the hallway, from

the baseboard almost to the ceiling.” (RR60:63).

James tried to determine whether anything had been stolen from

the house. (RR68:230). He saw “a gap in the closet.” (RR68:230). A

number of Fred’s suits were gone as were his shirts, hats and caps.

(RR68:230). Fred’s gold and silver Rolex was also gone. (RR68:231-32).

Dr. Edward McDonough performed an autopsy on Mildred.

(RR61:46-47; SX71-83). Mildred “had extensive sharp-force trauma

over almost all the surfaces of her body. Particularly, above the waist.”

(RR61:54). The total number of sharp-force wounds was “probably more

than 90.” (RR61:54).

Mildred suffered multiple injuries to the head. Dr. McDonough

described the following: a stab-wound to the right side of her chin; a v-

shaped cut to her scalp; a superficial stab wound above her right

eyebrow; a three-inch cut on the back of her scalp; and, two stab wounds

to her right-back shoulder. (RR61:63-65; SX75-76, 79-80). Mildred’s

5 other wounds were grouped based on their location: the head; right-

chest; abdomen; and back. (RR61:66; SX82). There were 20 individual

stab wounds to Mildred’s abdomen. (RR61:67; SX82). Most were

superficial, however, some entered the abdominal cavity. (RR61:67).

There were 17 wounds to Mildred’s back, some of which penetrated her

right chest cavity. (RR61:68-69). There were “about 35 individual

wounds of various widths and depths” to the right side of Mildred’s

body, from her armpit down to her thigh. (RR61:69; SX70A, 83).

“There’s a lot of wounds that are even confluent, where they’re so close

together they actually blend together.” (RR61:71). There were stab

wounds to the left side of Mildred’s body. (RR61:71; SX71). There were

four or five stab wounds to the back of her left upper arm. (RR61:71;

SX81). There were wounds to her right hand. (RR61:72; SX73). There

was a “through and through stab wound of the wrist” on her left arm.

(RR61:72-74; SX74). Dr. McDonough estimated the depth of the stab

wounds as five to six inches deep. (RR61:68). She had defensive

wounds on her hands, wrists, and forearms. (RR61:66).

Many of the stab wounds affected Mildred’s organs. There was a

stab wound to her right lung; her left lung; eleven stab wounds to the

6 liver; her aorta was transected. (RR61:75). Mildred also suffered a

“fairly-significant blunt-force trauma, which consisted of a fracture of

the right humerus.” (RR61:67; SX82). Almost every one of her ribs

was fractured, some in two places. (RR61:67-68). Mildred’s cause of

death was “multiple stab wounds of the torso.” (RR61:74).

Dr. Gilliland performed an autopsy on Fred.2 (RR61:47-48, 51-52;

SX57-70, 70A). Dr. Gilliland documented 21 sharp-force injuries on

Fred. (RR61:58). Fred had a stab wound to the right side of his head

that was about an inch long. (RR61:79, 80; SX58, 65). He suffered five

stab wounds to the left side of his trunk, injuring his left upper lung,

heart, abdomen, liver, stomach and pancreas. (RR61:79-81; SX58, 62).

The approximate depth of these wounds is “up to six inches[.]”

(RR61:80). He suffered ten blunt and sharp-force wounds to his back.

(RR61:80, 82; SX67, 59). These injuries caused damage to Fred’s left

lung and spleen as well as a fracture of the 11th rib. (RR61:80; SX67).

He suffered stab wounds to his arms. (RR61:81; SX64). The medical

examiner also “noted there were several cuts between the buttocks.”

2 Dr. McDonough was present and observed Fred’s autopsy. (RR61:47-48). 7 (RR61:83; SX61). Fred’s cause of death was “multiple stab wounds.”

(RR61:83).

All of Mildred’s and Fred’s wounds are consistent with a single-

edged knife. (RR61:58, 61). All of the wounds could have been inflicted

by a single knife. (RR61:61, 88).

Physical Evidence of the Crime

The Finch home appeared to have been burglarized. (RR60:37,

43). The point-of-entry appeared to be a window. A couple of the

window sills on the front of the house appeared to have been recently

damaged and there were two open windows. (RR60:36, 55-57, 148-50;

RR63:13; SX35, 37, 107-08). The window in the front of the house was

open, but blocked on the inside by a heavy piece of furniture.

(RR60:147, 149, 188; RR63:13; SX108, 110). A bent window screen in

the yard appeared to fit this window. (RR60:36, 56, 144, 182; SX35-37).

A window on the side of the house was also open. (RR60:149, 187;

SX36-37). There was an air conditioning window unit sitting in the

grass nearby. (RR60:36, 145, 150; SX36-37). The cord for the unit

stretched from the unit though the open window to the outlet where it

was still plugged in inside. (RR60:36, 145, 148; SX36-37, 107, 109). On

8 the inside of the house, the curtains were pulled away, consistent with

someone coming through the side window from the outside to the inside.

(RR60:150-51; SX109-10).

The home appeared to have been ransacked. (RR63:12). In the

living room, a stereo, and a cardboard box were stacked up by the front

door. (RR60:39, 179). The box appeared to have been “stacked up for a

purpose.” (RR60:204). Inside the box were some suits and a raincoat.

(RR60:107, 109, 179, 204; SX111). The black raincoat appeared to have

blood on it. (RR60:180, 204).

In the kitchen, there was a bloody rag on the floor near the

refrigerator. (RR60:37; RR63:12; SX41). There was blood on the

handle of the refrigerator. (RR60:38). On the kitchen table, there was

a Saturday-edition of the Sunday March 16th newspaper.3 (RR60:37-

38, 109-10; RR61:197; SX112, 114, 116). The newspaper had blood on

it. (RR60:37-38, 109-10; SX112, 114, 116). The blood appeared to be

an outline of a knife. (RR60:110, 125; SX116). “It looks like there was

3 The Dallas Times Herald newspaper on the table was a “Sunday noon dog edition[.]” (RR61:197; SX114). This version of the Sunday paper was part of an edition that would have gone to press in the morning of Saturday, March 15, 1986. (RR61:197; SX114). It would have been available for sale at various over-the- counter locations throughout the county “around 8:30, 9:00 o’clock Saturday morning.” (RR61:197-98). 9 blood on a knife tip and it was wiped off on the newspaper.” (RR60:178,

209; SX112-16).

Police walked around the scene trying to find the murder weapon.

(RR60:118, 197). It was never recovered. (RR60:127-28).

The Investigation

On March 18th, the Crime Stoppers Unit received a tip from Kathy

Johnson. (RR60:83, 85, 122). Kathy knew about the stolen property

and the type of weapon. (RR60:85). She provided Appellant’s name.

(RR60:86). Kathy met with police later in the day and provided

Appellant’s brother’s name, Lonnie Thomas, and advised that Lonnie

knew of the stolen property as well. (RR60:87, 122).

Detectives James Gallagher and Phillip Jones went to 4323

Electra to speak with Lonnie. (RR60:87; RR63:22). Lonnie wasn’t

home, but they spoke with his mother, Shirley Baldwin, and his other

brother, Billy Thomas. (RR63:22). Shirley told Jones that Appellant

admitted to the murders. (RR63:63). Jones requested and was granted

consent to enter the house. (RR63:23). Inside, Jones found a three-piece

black suit, an umbrella, and black-and-white shoes. (RR63:23). He did

not find a bloody knife or bloody clothing. (RR63:24).

10 Later that day, Billy called Jones to let him know that Lonnie had

returned home. (RR63:26). Jones and Gallagher went back to the

house on Electra. (RR63:26). Lonnie agreed to accompany them back

to the station. (RR60:87; RR63:26). Jones testified:

What Lonnie told me, en route from 4323 Electra to the office, was that when Kenneth woke him up, he had been stacking property in the house; that he asked him to come out and help move some of the stuff. He walked outside and he said, at that point, that the property had been taken out of the back of a yellow car.

(RR63:54).

At the station, Lonnie provided a written statement implicating

Appellant.4 (RR60:88, 90, 124; RR63:30). Lonnie told police that he

saw Appellant in possession of a bloody weapon. (RR60:127).

Detectives were on their way to return Lonnie back to Electra when

they learned that Lonnie had recently disposed of some of the Finch’s

property at a “makeshift dump” on the 4000 block of Hancock Street.

(RR60:91-95; RR63:31; SX34D, 87-88, 94, 100). Lonnie had not

mentioned Hancock in his statement. (RR63:30). The detectives drove

to the dump site where they recovered several hat boxes, black trash

4Lonnie claimed to be home in bed with his girlfriend, Delores Easter. (RR60:93, 131). 11 bags containing clothing, and Fred’s brown briefcase. (RR60:95-97;

RR63:31; SX87-88, 94-99).

Lonnie was transported back to the station where he gave a

voluntary statement and was arrested. (RR60:98-99; RR63:32-33). This

time, Lonnie said that Kathy Johnson helped him dump the property.

(RR63:32). He claimed that he did not call the police because he “was

afraid that he would be charged or considered a suspect in the case.”

(RR63:49)

Late that night, Appellant was arrested at the house on Electra,

which is about four blocks from the Finch home. (RR60:49, 53, 103;

RR63:35-36; SX34B, 225). Appellant was wearing Fred’s Rolex watch.

(RR60:106; RR63:36-37; SX219-21).

The Hancock Dumpsite

At the Hancock dumpsite, police located a great deal of Fred’s

property, including suitcases, clothing, suits, men’s hats, and hat boxes.

(RR61:97-99, 104-10; SX5-14, 18-21, 23, 86-88, 94-101, 207). Hats and

hat boxes were found under a white sheet. (RR61:100, 102, 104-10;

SX87, 95). A brown hat box was found on top of a couch. (RR61:101;

SX87, 98). Two black garbage bags containing clothing were found

12 near the couch. (RR61:101-03; SX88, 95, 97). There was also a brown

satchel containing men’s dress shirts and a loaded Enfield .38-caliber

revolver in a holster. (RR61:97-98, 103-05, 123; SX84, 85, 87,5 97, 99,

207).

Among the items collected from the dumpsite were: a men’s three-

piece suit (SX23); a grey and red flannel suit (SX25); a grey plaid suit

containing the label “Fred James Finch, Jr” and dated December 10,

1982 (SX27); a grey suit containing the label “Custom Tailored for Fred

Finch” (SX26); a yellow shirt (SX8); a light colored shirt (SX7); a blue

and red plaid shirt (SX12); a blue striped shirt (SX11); a white and blue

shirt (SX9); a gray shirt (SX10); a light-colored plaid shirt (SX6); a blue

patterned shirt (SX13); a blue shirt with a white collar (SX5); a multi-

colored shirt (SX28); a silver patterned shirt (SX17); two Dobbs hats

(SX19-20); a flannel newsies hat (SX23); a brown fur hat (SX101); a blue

hat (SX21); a tweed hat (SX18); a straw hat; (SX14); a pair of brown

gloves (SX93); three pairs of black gloves (SX102-04); a blue striped

scarf (SX29); a brown suede jacket (SX16).6 (RR61:105-20).

5 The gun and holster were released following Appellant’s 1987 trial. (RR61:116; SX87). 6 The property from the Hancock dumpsite that was introduced into evidence

represents about one-third of the property collected from that site. (RR61:124). 13 Bernard Blackmon7 testified that he worked for the Leonard

Custom Tailoring Company in Cincinnati and the Ripley Shirt

Company in Dallas, selling tailored suits and tailored shirts.

(RR61:190). Blackmon sold Fred custom suits. (RR61:193). He

identified State’s Exhibit 26 as a custom-made suit that he sold Fred.

(RR61:193; SX26). He also ordered custom-tailored shirts for Fred as

well. (RR61:194-95; SX10-3, 17). The cuffs of these shirts are

monogramed with Fred’s initials, FJF. (RR61:195).

Forensic Evidence

Appellant’s fingerprints were found on the inside portion of the

window sill, on the inside of the window screen, and on the air

conditioning unit. (RR60:215-16, 252-57; SX117-24). The bloody palm

and fingerprint found near Mildred’s body also belonged to Appellant.

(RR60:111-14, 171-76, 217, 232-257; SX125-26, 202). Police had no

information suggesting that Appellant knew the Finches or had any

reason to be at their home. (RR60:113-14). Lonnie’s fingerprints did

not match those recovered from the Rose Lane address. (RR60:131).

7Bernard Blackmon was deceased at the time of the 2014 trial. The transcript of his prior testimony was read into the record. (RR61:188). 14 Appellant’s fingerprints were found on the Knox hat box recovered

from the Hancock Street dumpsite. (RR60:221, 260; SX134, 202).

In 1986, Carolyn VanWinkle performed serological testing on the

following items: the black raincoat (SX111); some pillowcases; black

and white shoes; a bedsheet and mattress pad; Mildred’s clothes; and

the sheets from around Mildred’s body. (RR61:15, 18-19, 21). The

raincoat tested positive for blood. (RR61:22; SX111). It was Fred’s and

Mildred’s blood. (RR61:22, 26; SX111). Further testing of the samples

from the raincoat did not reveal the presence of any foreign blood.

(RR61:28-29). A presumptive test performed on the black-and-white

shoes was positive for blood. (RR61:35-38; SX30). The gold bedsheet

and white mattress pad collected with Mildred’s body both “had a large

quantity of blood and blood soaked into it.” (RR61:38-39). Samples of

the blood corresponded to the Finches. (RR61:39).

A pink and green pillowcase that was received with Fred’s body by

the medical examiner was also tested. (RR61:30-31). “[T]here was

semen identified on the pillowcase.” (RR61:31). “[S]permatozoa were

identified on that stain.” (RR61:33-34). A screening test performed on

15 the anal swab collected during Fred’s autopsy was positive for the

presence of semen. (RR61:32-33, 43). The semen was Fred’s. (RR61:43).

Certain items of evidence were subjected to testing “for handler

DNA or any epithelial cells that may have come off when somebody was

carrying them or maybe wearing them.” (RR61:128, 132-33; SX208-09).

Mildred’s pajama shirt contained human blood. (RR61:137). There

were three available cuttings from the shirt, but only one sample

yielded a genetic profile. (RR61:158; SX210). A sample of blood from

Mildred’s pajama shirt yielded a partial DNA profile, which was

identified as Mildred’s own blood. (RR61:153-55). There were four

available cuttings from Mildred’s pajama pants. (RR61:159; SX210).

One sample yielded a partial profile that matched Mildred. (RR61:159;

SX210). There were six available cuttings from the bedsheet from the

Finch home. (RR61:160; SX210). One sample yielded a full genetic

profile, which was that of Mildred. (RR61:161-62; SX210). Several

partial genetic profiles from the sheet were also a match to Mildred.

(RR61:162-63; SX210). Testing of a hair curler yielded a partial profile

matched to Mildred. (RR61:163; SX210). Testing of a hair curler clip

yielded a partial profile matched to Mildred. (RR61:163; SX210).

16 Three stains from the raincoat did not yield any DNA. (RR61:164;

SX210). One stain from the raincoat, however, matched Mildred’s

DNA. (RR61:164-65; SX210). The cutting from a pillowcase matched

Fred’s DNA profile. (RR61:171-72; SX217).

Angela Fitzwater tested the anal swab from Fred’s rape kit.

(RR61:169; SX218). Both the epithelial cell fraction and the sperm cell

fraction matched Fred’s DNA profile. (RR61:170, 173-74; SX218). DNA

testing from Fred’s right-hand fingernail clippings was also a match to

Fred. (RR61:170; SX218).

The Thomas Family

In March of 1986, Appellant, his mother (Shirley Thomas), his

brother (Lonnie Thomas), his sister (Shirley), and Lonnie’s girlfriend

(Delores Easter) shared a home at 4323 Electra. (RR62:11-13, 28, 30,

73, 81, 118-19). Lonnie and Easter occupied one of the bedrooms in the

house.

On Saturday, March 15, 1986, Lonnie watched wrestling on

television, after which he and Easter went to bed. (RR62:74). Early

the following morning, Appellant woke him up, “bringing in some

clothing and bags and boxes.” (RR62:74). He had “a suitcase, with a

17 pistol in it. He had boxes with hats and clothes, and he had [sic] Rolex

watch on. (RR62:14). Appellant wanted Lonnie to help him bring

everything inside. (RR62:32, 75-76). Appellant put the property on the

living room couch, on the porch and in the back room. (RR62:31).

Included among the property were long-sleeve shirts with initials

embroidered on them. (RR62:15-17). The initials did not correspond

with Appellant’s name. (RR62:15). Appellant claimed that he got the

property as payment for helping a lady “move something out of her

garage.” (RR62:76).

At one point, Appellant went into the bathroom. (RR62:76).

When Appellant came out, Lonnie saw a shirt lying in the bathtub.

(RR62:77). The shirt was covered in blood on the right side from the

wrist to the elbow. (RR62:76-77). Lonnie also saw a bloody knife in

the bedroom. (RR62:78-79). It was a long hunting-type knife.

(RR62:78). It was about six inches long and had a “cream-colored speck

with brown” handle. (RR62:78). Appellant claimed that he had

stabbed a dog. (RR62:13-14, 78).

Appellant showed Lonnie “an old model .38 Breakdown front side”

firearm. (RR62:79). The gun was in a briefcase. (RR62:80). Appellant

18 was wearing “a gold-band watch.” (RR62:80-81; SX221). After he

showed Lonnie the property, Appellant “basically kind of just sat down

and fell asleep.” (RR62:82). When Lonnie woke up the following

morning, Appellant was gone. (RR62:83). The bloody shirt and knife

were also gone. (RR62:83).

That day, Appellant’s other brother, Billy,8 went to the house on

Electra at about noon. (RR62:143). He wanted his mother to pay him

for babysitting his nieces and nephew. (RR62:142-43). At the house,

Billy noticed some big boxes in the bedroom where Lonnie and Kenneth

slept. (RR62:144, 177, 200). He did not see how the boxes got there.

(RR62:177, 200).

On Monday, Appellant met up with his cousin Thomas Penagraph.

(RR62:42, 43). Appellant went over to Thomas’s house, then Appellant,

Thomas, and Thomas’s girlfriend Brenda Jackson all went to the house

on Electra. (RR62:43-44). There, Appellant changed into a black suit.

(RR62:45, 50; SX24). He showed Thomas “[t]he suede brown jacket. A

couple of hats . . . [and] some suits[.]” (RR62:44-45; SX16, 18-19).

Appellant was wearing a watch that was big and looked expensive.

8Billy Thomas was deceased at the time of the 2014 trial. The transcript of his prior testimony was read into the record. (RR62:140). 19 (RR62:45; SX219-21). Thomas had not seen Appellant with that watch

or that property before. (RR62:45-46, 52, 68). Appellant gave Thomas

one of the jackets and one of the hats. (RR62:46; SX16, 19).

On Tuesday, Lonnie heard on the radio that a lawyer and his wife

had been killed “in the South Dallas area, close to where I lived.”

(RR62:85). That day, Lonnie moved the property from Electra to his

cousin Bobby Roy’s house. (RR62:86, 101). Billy had told Lonnie of a

call that he had received from Kathy, “to get the stuff out of my mom’s

house because my brother had killed some people.” (RR62:87). Later,

Billy called and told Lonnie to get rid of the property because the police

were looking for him. (RR62:87). Lonnie put everything in a sheet

and trash bags and he and Kathy took the property to Hancock.

(RR62:88-89; SX87-88). Afterward, he went back to the house on

Electra. (RR62:90).

The police came and picked Lonnie up and took him to the station

where he gave a statement. (RR62:91, 132-35; SX223). In this

statement Lonnie told Detective Gallagher that he saw Appellant with

the property on Sunday morning. (RR62:92-93). He told them about

the bloody shirt. (RR62:93). He did not say anything about the knife

20 or the gun or about dumping the property on Hancock. (RR62:93, 128-

29). The police were taking Lonnie home when they learned that

someone had seen Lonnie dumping the property. (RR62:93, 122-23).

Lonnie realized that he had to be honest. (RR62:123, 125). On

Hancock, he pointed out the property that he and Kathy had dumped.

(RR62:94). Lonnie was placed under arrest for murder.9 (RR62:94, 96).

He gave a second statement. (RR62:95; SX224). In this statement, he

told police about the bloody knife, the bloody shirt, the pistol, and how

the property moved from Electra to Hancock. (RR62:95, 135; SX224).

After Lonnie’s arrest, Billy started receiving calls from Appellant.

(RR62:156-57). During one call, Appellant said he was coming to the

house to get his clothes. (RR62:158, 187). Appellant also said “[t]hat he

was going to kill us.” (RR62:159). During another call, Appellant said

“[t]hat he was going to kill us all if he didn’t get what he wanted.”

(RR62:160). He wanted “[h]is money and clothes.” (RR62:161). The

threat to kill was directed at Billy and their mother. (RR62:163). Billy

called the police. (RR62:188). He was told to call back if Appellant

went to the house. (RR62:188).

9After Lonnie testified at the trial in 1987, his case was “dismissed for insufficient evidence.” (RR62:97, 137). 21 That night, Appellant returned to the Electra house. (RR62:164-

65). Appellant and Billy discussed Lonnie and money.10 (RR62:164-65,

205, 207, 216-17). Appellant wanted Billy to give him $8,000.

(RR62:165, 193). Appellant went to the back room, came back, pointed

a gun at Billy’s head and then pulled the trigger.11 (RR62:166, 193-94,

205). He pulled the trigger six times. (RR62:166, 194). Billy told

Appellant that the police had called. (RR62:167). Appellant said that

“he didn’t know what the police were looking for him for unless they

had some money to give him.” (RR62:167). If Billy didn’t give

Appellant his money or clothes, Appellant was going to kill the family.

(RR62:167-68). Appellant was upset. (RR62:170).

Lonnie’s father, Lonnie Burrell,12 went to the house on Electra

that night. (RR62:225). When he arrived, Appellant was walking out.

(RR62:226). Appellant asked where Lonnie was. (RR62:226). Burrell

said Lonnie was probably in jail for something that Appellant did.

10 On direct examination, Billy testified that the encounter with Appellant and the gun occurred on Tuesday night. On cross-examination, he testified that the encounter occurred on Monday night. (RR62:197, 205, 207, 209-14). His memory was refreshed with his prior testimony wherein he testified that the encounter took place on Tuesday. (RR62:209-15). He eventually testified that “maybe I had the days mixed up.” (RR62:211). 11 Billy had not previously seen a gun at the house on Electra. (RR62:200-01). 12 Lonnie Burrell was deceased at the time of the 2014 trial. The transcript of his

prior testimony was read into the record. (RR62:220). 22 (RR62:226-27). Appellant told Burrell that Lonnie did not know

anything. (RR62:227). He said that Lonnie was not with him “during

the time.” (RR62:227). Later that evening, coverage of the murders

appeared on the news. (RR62:228). Appellant’s mother asked

Appellant whether he killed them and Appellant said yes. (RR62:164,

169-70, 217-18, 228). He said that “the dead can’t talk and he wasn’t

through yet.” (RR62:164). Appellant said that he was not finished

killing yet. (RR62:229).

Appellant was arrested later that night. (RR62:172, 229).

Appellant’s Criminal History

The State presented evidence of Appellant’s criminal history and

bad behavior while in prison:

On February 18, 1979, an 18-year-old Marvin Lindwood went to

his friend Vicki Calhoun’s house for drinks. (RR63:68-69, 88).

Lindwood and Vicki were sitting around having a good time when

Appellant came over. (RR63:69). Vicki invited him in. (RR63:69). For

the first couple of hours, everything went well but then Appellant tried

to attack Vicki. (RR63:70). In the kitchen “he had her in there up

against the sink. He was trying to pull her clothes off of her.”

23 (RR63:70). Lindwood told Appellant to leave Vicki alone. (RR63:70,

79). He and Appellant started fighting. (RR63:70, 79, 90). “He hit me.

I hit him.” (RR63:70). At some point, Appellant left. (RR63:71).

Lindwood stayed with Vicki to continue drinking and listening to music.

(RR63:71). Later, Lindwood heard someone calling his name outside.

(RR63:71). It was Appellant. (RR63:71).

“When [Lindwood] went to the door, [Appellant] was standing up

out there acting like he wanted to apologize and all that there.”

(RR63:71). He told Lindwood that he knew he was wrong and asked

Lindwood to apologize to Vicki for him. (RR63:71). He said he would

not return. (RR63:71). Appellant got up as if he were going to walk off.

(RR63:71, 87). Lindwood turned to go inside. (RR63:71, 87, 90). The

last thing he remembered was reaching for the screen door. (RR63:71-

73, 90). “That’s when [Appellant] stabbed [him] in the head with that

screwdriver.” (RR63:72). When Lindwood woke up, he was in the

hospital and nearly a month had passed. (RR63:74).

The screwdriver penetrated Lindwood’s brain. (RR63:75).

Lindwood suffered irreversible, permanent brain damage. (RR63:84).

The stabbing caused permanent damage to the left side of his body.

24 (RR63:74-75). Lindwood suffered a loss of mobility to his left side.

(RR63:74).

That same day, Billy, who was living with Appellant, Lonnie, their

sister, and their mother, gave Appellant money to buy beer.

(RR63:111). Appellant did not come back with any beer. (RR63:111,

116-17). Instead, Appellant returned late. (RR63:111). Then, they got

into a fight during which Appellant cut Billy.13 (RR63:112). Appellant

also cut Billy’s friend, who happened to be at the house during the fight.

(RR63:112-13). After the fight with Billy, Appellant went next-door, to

his ex-girlfriend Joyce Brown’s house. (RR63:101-02). When Brown

refused to let him inside, Appellant broke her window. (RR63:102-03).

Appellant was tried for the offense against Lindwood. He was

convicted of aggravated assault with a deadly weapon and was

sentenced to ten years’ confinement in the institutional division of the

Texas Department of Criminal Justice. (RR60:223, 264-65; SX205).

In January of 1983, Michael Ferguson was arrested and jailed

for murder. (RR63:136). He was assigned to a cell with Appellant.

(RR63:137-38). Initially, Appellant was “playing the nice-guy role.” 13 On direct examination, Billy testified that he was cut on his forehead. (RR63:112). On cross, Billy admitted that it could have been on his chest. (RR63:115). 25 (RR63:138). Appellant was religious and read scripture. (RR63:138).

Once Ferguson let his guard down, however, Appellant became

aggressive. (RR63:138-39). Appellant “started coming on to me

sexually, of course. Extortion. Wanted to know if I had money and

whatnot.” (RR63:138-39). Appellant was “[d]emanding.” (RR63:139).

He was a “predator.” (RR63:142). Ferguson was transferred out of

Appellant’s tank. (RR63:140-41).

On June 13, 1983, Steven McCarroll was in the Dallas County

Jail, incarcerated on a charge of aggravated robbery. (RR63:150).

McCarroll was assigned to Appellant’s tank. (RR63:150). That day,

McCarroll saw Appellant “raping another inmate.” (RR63:151).

McCarroll was sleeping on the bunk on one side of the cell. (RR63:152-

53). Appellant was on the bunk on the other side with “the sheet up

over the top of the bunk.” (RR63:152). The sheet fell down and

McCarroll saw Appellant on top of the other inmate. (RR63:152). The

inmate was screaming. (RR63:153).

The following day, when McCarroll got out of the shower

Appellant approached him “want[ing] me to suck his dick.” (RR63:154).

McCarroll “tried to get away from him. Ended up with a broke nose and

26 two black eyes.” (RR63:154). “So he was going to try to force me to

suck his dick.” (RR63:154).

On August 25, 1983, then-17-year-old Larry Dean Turner was

incarcerated at the Dallas County Jail on an aggravated robbery

charge. (RR63:163, 165, 173). Appellant befriended Turner. (RR63:168).

At first, Appellant “got [Turner] to wash his clothes for him.”

(RR63:167). Then, he tried to get Turner to be “[h]is kid.” (RR63:167).

“All the big peoples [sic] up there. You had younger people on the tank

with them at that time.” (RR63:168). Appellant wanted Turner to

“[r]ide with him: Be his bitch.” (RR63:168). Turner explained that

meant that Turner was supposed to be Appellant’s “woman. Kid.

Where I do sexual stuff for him, and stuff like that there.” (RR63:168).

Additionally, “If he told me to have sex with people, I have to have sex

with people.” (RR63:169).

Over the course of the four and a half years Appellant was

incarcerated at the Dallas County Jail, he was moved multiple times.

(RR63:181-82). Among the reasons for his moves were: placing in

administrative custody; assaultive towards other inmates; causing

27 trouble in tank; fighting; making sexual threats; unable to get along

with others; and to keep down trouble. (RR63:182; SX228).

Appellant was released from prison on June 1, 1984. (RR63:187;

SX226). He was required to report to his parole officer, Linda Nelson,

on a monthly basis but he failed to do so. (RR63:186, 188). Appellant

was “unstable with his residence” and he “did not maintain stable

employment.” (RR63:192-93). While on parole, Appellant tried to stab

his mother. (RR63:189). He had a parole violation hearing after which

he was ordered to go to a halfway house for six months.14 (RR63:189).

Appellant absconded from the halfway house. (RR63:190).

Records relating to Appellant’s disciplinary incidents in prison

were also admitted. (RR65:36; SX245). While in prison, Appellant

engaged in the following conduct: he created a disturbance by flooding

his cell (twice); he used indecent or vulgar language; he threw his tray

out of his cell; he threatened an officer, telling him, “If you put me on

that list again, I will do something to your ass”; Appellant refused to

obey an order (multiple times); he got into a fistfight with another

14 At the hearing, Appellant’s mother denied that Appellant had assaulted her; she testified that she wanted him arrested for a few days and she knew she would have to tell the police something serious. (RR63:196-97). The assault against Appellant’s mother was reduced to a Class C misdemeanor. (RR63:196). 28 inmate; he threw two glasses of water at an officer, striking him on the

face and chest; he was found in possession of contraband (multiple

times); and, he threatened an officer, telling him, “I’m going to burn

your ass.” (RR65:37-40; SX245).

Appellant’s Case

Appellant’s cousin, Anthony Penagraph, testified that he and

Appellant grew up “over there in Frazier Court.” (RR65:43). It was

difficult there because in that area “you go to the store, you go to school,

you had to fight. And Kenneth was not the type of person that was a

fighting person.” (RR65:44). Anthony testified that Appellant was

picked on and had to be rescued a couple of times. (RR65:47). If

Appellant had to defend himself, however, he would. (RR65:56).

Appellant’s mother worked a lot. (RR66:78). According to several

of Appellant’s cousins, Shirley treated Appellant differently than her

other children. (RR65:51; RR66:80, 129). “[W]hen it came to Kenneth .

. . she didn’t do too much for him. Just to get by.” (RR65:51).

Appellant did not have a father figure growing up. (RR66:77).

According to Anthony, Appellant “was a little slow[.]” (RR65:49).

Appellant made it through school but “they would help you get through

29 those grades.” (RR65:49). His grades were “low.” (RR65:49).

Appellant’s cousin Cynthia Penagraph Rice also believed that Appellant

was slower than others. (RR66:130). She testified that:

We always thought that. Because sometimes it will take him, like, quite a minute to kind of catch on. He would say, “What you say?” You know, he was slow.

(RR66:131).

When he was 15, Appellant received a head injury at Fair Park.

(RR65:52; RR66:19). “It was a guy jumped on him out there and hit him

in the head with some object. And he been acting different ever since.”

(RR65:52). After Appellant’s head injury, Appellant “kind of drifted

away a little bit.” (RR66:84). He was “[m]ore quiet.” (RR66:85). After

his head injury, “he seem [sic] to get a little slower.” (RR66:132).

Appellant’s cousin Bobby testified that Appellant never did any

drugs around him. (RR66:90). He had seen him drink beer, however.

(RR66:90).

Rice was surprised when she learned that Appellant was arrested

for the Finch murders. (RR66:135). She testified that Appellant is “not

that type.” (RR66:135). She did not think that Appellant could have

committed the offense by himself. (RR66:135).

30 Rodney Turner is Appellant’s half-brother.15 (RR66:96). Growing

up, Turner had only brief interaction with Appellant. (RR66:96). In

1990, however, he and Appellant reconnected by writing letters when

they were both in prison. (RR66:97). The men encouraged each other

through their letters. (RR66:97). Appellant would include in his letters

citations to scripture for Turner to look up in the Bible. (RR66:106).

When Turner was let out on parole, he visited Appellant in the Dallas

County Jail. (RR66:101-02). During their twice-weekly visits, the men

discussed religion. (RR66:102). Appellant is able to discuss the Bible,

scriptures, “you know - - just helpful things.” (RR66:102). Turner

brought Appellant’s mother to visit him a couple of times. (RR66:103).

She appeared supportive of him during the visits, but “when she got in

the car, was something totally different.” (RR66:103).

Several detention officers who have supervised Appellant in the

Dallas County Jail since he was transferred from prison in October

2010 testified that Appellant does not cause problems in the jail.

(RR67:19-21, 23-24, 41, 50; RR68:22, 25-26, 28). Van Similine testified

15 At the time of his testimony, Turner was incarcerated as the result of a parole violation on charges of aggravated sexual assault and burglary of a habitation. (RR66:97-98). Turner admitted that he has ten felony convictions and is a registered sex offender. (RR66:106). 31 that Appellant “stays to himself. Don’t [sic] cause no [sic] problems.”

(RR67:41). In his cell, Appellant is “[e]ither reading or sleeping.”

(RR67:41). Appellant reads “novels off the law library cart.” (RR67:45).

During Appellant’s recreation time, he goes to the gym and walks or

plays basketball. (RR67:42). Curfey Anderson described Appellant as

“[i]nstitutionalized.” (RR67:24).

Defense expert, James Aiken, a prison consultant, reviewed the

records detailing Appellant’s confinement history. (RR67:67, 74).

According to Aiken, since he has been incarcerated, Appellant has been

on a “predictable scale.” (RR67:83). Appellant has “gone from

disruptive behavior, down, down, down, to compliant behavior[.]”

(RR67:83). Aiken opined that Appellant “can be adequately managed

for an extended period of time, without causing unusual risk to staff,

inmates or the general public.” (RR67:97). If he is placed in general

population, “[h]is vulnerability level will be high. His adjustment level

would be excellent.” (RR67:97).

Appellant’s Psychological Experts

Dr. Jim Hom, a neuropsychologist, evaluated Appellant’ brain

functioning in 1987. (RR65:82, 91). Dr. Hom administered the

32 Halstead-Reitan Neuropsychological Test Battery. (RR65:88). On the

WAIS-II,16 a “measure of intelligence,” Dr. Hom determined that

Appellant’s reading level is at a fourth grade level,17 his spelling below a

third grade level, and math below a third grade level. (RR65:110, 115).

Appellant scored a verbal IQ of 73, a performance IQ of 85, and a full-

scale IQ of 77. (RR65:118). In his report, Dr. Hom noted that, with

regard to Appellant’s low scores, “it is likely that these performances

represent poor education experience.” (RR65:123; DX7).

Appellant performed well on the Tactual Performance Test, “a test

of psychomotor problem solving, incidental memory learning.”

(RR65:132). “This is a very challenging test.” (RR65:133). Appellant

performed well on the Trail Making Test, Part A, a “test of attention

and concentration[.]” (RR65:134). Appellant demonstrated no problems

on tests of vision, hearing, touch, and sensation. (RR65:135).

Appellant’s ability for “inscription” using his left hand was “quite

strong” despite a history of being stabbed on his left arm. (RR65:135;

DX7).

16The current version of this test is the WAIS-IV. (RR65:111). 17Given Appellant’s reading level, the results of two tests were considered invalid: the Minnesota Multiphasic Personality Inventory (MMPI) and the Cornel Health Index. (RR65:89-90). 33 Dr. Hom testified that Appellant’s “test results are consistent with

someone who has what I believe is a significant head injury of one sort

or another.” (RR65:102-03). He assessed Appellant’s intelligence in the

“low 70 range” and his academic abilities at the third and fourth grade,

level. (RR65:103). He opined that Appellant has “significant problems

in reasoning and thinking,” and difficulty in sequencing, concentrating,

language and function. (RR65:103-04). He described Appellant’s verbal

memory as “moderately to severely impaired.” (RR65:105). He also

showed “mild motor and sensory difficulties.” (RR65:107). Dr. Hom

conceded that during testing Appellant was, at times, nonchalant and

“[r]eluctant to perform.” (RR65:120, 125, 128; DX7).

Dr. Antoinette McGarrahan, a psychologist specializing in forensic

psychology and neuropsychology, performed a neuropsychological

evaluation of Appellant in 2012. (RR66:15-16). Dr. McGarrahan

administered 30 to 35 tests over the course of two days. (RR66:21). Dr.

McGarrahan measured Appellant’s full-scale IQ at 71. (RR66:23). She

placed this score in “what we used to call ‘mildly mentally retarded’

range to borderline functioning[.]” (RR66:23). She noted that the

interval of Appellant’s IQ is “essentially plus or minus five points,’ thus

34 placing his true score somewhere in the range of 66-76. (RR66:29-30).

She observed “significant deficits in [Appellant’s] academic skills” and

mild to moderate memory impairment. (RR66:23). Based on the

results of her evaluation, Dr. McGarrahan concluded that Appellant is

intellectually disabled.18 (RR66:24).

During the evaluation, Dr. McGarrahan learned that Appellant

was raised in “the projects” and that his family was poor. (RR66:18).

Dr. McGarrahan also pointed out the fact that Appellant’s mother

smoked and drank alcohol while she was pregnant with Appellant.

(RR66:26). And, Appellant was born with the umbilical cord wrapped

around his neck while his mother was in a car on the way to the

hospital. (RR66:26). He was never placed in special education but he

did not learn to drive; he had problem making change; he had difficulty

using a phone book. (RR66:18, 25). He had “very few jobs over his life.”

(RR66:18). Appellant was a loner and had difficulty getting along

with others. (RR66:25). He does not have “a psychiatric history.”

(RR66:19).

18Intellectual disability was previously referred to as mental retardation. At trial, the terms were used interchangeably. 35 Dr. McGarrahan testified that, consistent with Dr. Hom’s

findings, in both sets of testing, the primary areas in which Appellant

demonstrated impairment are reasoning, logical thinking, planning,

and problem solving. (RR66:33).

On cross-examination, Dr. McGarrahan testified that the history

Appellant gave her “wasn’t quite accurate.” (RR66:36). Appellant told

Dr. McGarrahan that “he had a wonderful childhood; that there were no

problems; that he had great relationships with his family members;

that he did okay in school.” (RR66:36). Dr. McGarrahan conceded that

Appellant is capable of lying to avoid criminal responsibility.

(RR66:53). She acknowledged that when Appellant was interviewed by

a reporter, he said that on the day of the murders he went to church

with his girlfriend in the morning and then had supper at his father’s

house. (RR66:52-53). He also told the reporter that there was no proof

that he committed the murders because the police did not have a

weapon. (RR66:52).

36 Psychiatrist Dr. Jaye Crowder became involved in Appellant’s

case in 1987.19 (RR66:140-42). Back then, Dr. Crowder performed a

mental status exam, conducted background interviews, and reviewed

Appellant’s medical records. (RR66:142). Dr. Crowder was concerned

that Appellant had suffered a traumatic brain injury so he referred him

to Dr. Hom for testing. (RR66:142). Dr. Hom’s testing confirmed the

presence of central nervous system damage. (RR66:144). According to

Dr. Crowder, Appellant saw difficulty with abstract reasoning.

(RR66:145). “So, in other words, it was more difficult for him to assess

the likely consequences of particular behavior.” (RR66:145).

Additionally, “you have typically some impulsiveness and irritability

that goes with this so that people can overreact in an aggressive way[.]”

(RR66:145).

Dr. Crowder examined Appellant on January 24, 2013 and again

on July 3, 2014. (RR66:146, 153). Appellant remembered him from

their 1987 interaction. (RR66:149-50). In the 2013 exam, Dr. Crowder

spent about an hour with Appellant and performed a basic psychiatric

19Dr. Crowder testified to his memory of his 1987 examination. (RR66:151). He no longer has his notes from that time. (RR66:151). He no longer had the notes from the interview he conducted with Appellant’s mother and uncle. (RR66:152). Other than the mother and uncle, Dr. Crowder could not recall who he interviewed. (RR66:152). 37 interview and a Montreal Cognitive Assessment. (RR66:146, 150). He

concluded that Appellant suffered from “major cognitive disorder due to

traumatic brain damage and intellectual disability.” (RR66:148).

Regarding Appellant’s adaptive functioning, Dr. Crowder opined that

Appellant has difficulty in interaction, trouble with employment, and

did not perform well academically. (RR66:157-58). In Dr. Crowder’s

opinion, the probability of Appellant being a future danger is low.

(RR66:149). He admitted, however, that an absolute prediction of

future danger cannot be made. (RR66:162). And, he conceded that he

testified at Appellant’s prior trial that Appellant “is certainly a danger

if he’s not treated and not put in a structured setting.” (RR66:164).

Dr. Crowder also conceded his prior testimony that Appellant’s alibi –

that he was with his girlfriend between midnight and six in the

morning – was easily refutable and not very believable. (RR66:169).

The State’s Case-in-Rebuttal

Melodye Nelson, a 25-year veteran of TDCJ, testified as an expert

on the prison system in Texas. (RR68:144). She is the senior warden

of two correctional facilities located in the Gatesville area. (RR68:144).

She has previously served as a major at a high-security male prison

38 facility. (RR68:146). “Our majors are what we consider our chiefs of

security. They are the highest-ranking security supervisors that we

have.” (RR68:146). Nelson testified generally about the types of

facilities, number of inmates and guards statewide, and how inmates

are classified within the system. (RR68:144-45).

Inmates in TDCJ are classified “in a custody level that is suitable

for the safety and security of the institution.” (RR68:151). Among the

factors considered are the inmate’s history of incarceration and prior

jail conduct, the length of his sentence, and the inmate’s behavior and

attitude. (RR68:152). General Population 1, or “G1,” includes those

inmates who are considered “minimum custody.” (RR68:153). A G1

may be a trustee, which allows him to live and work outside of the

facility’s perimeter fences. (RR68:153). General Population 2, or “G2,”

is the largest percentage of the general inmate population. (RR68:153).

A G2 may live and work in a dormitory. (RR68:153). A G2 is allowed to

work anywhere inside the secure perimeter. (RR68:163).

General Population 3, or “G3,” includes inmates serving 50 years

or more. (RR68:153). G3s may live in dormitories. (RR68:157). They

are allowed to work, so long as they do not “have access to multiple

39 areas of the facility.” (RR68:158). General Population 4, or “G4,”

includes those inmates who have multiple disciplinary infractions.

(RR68:153). G4s are “housed in cell blocks, two-man cells.”

(RR68:182). They have fewer work opportunities. (RR68:182). General

Population 5, or “G5,” are those inmates who are “chronic-rule

violators[.]” (RR68:153). G5s live on cell blocks and are not allowed

contact visits. (RR68:182). Their ability to purchase from the

commissary is reduced. (RR68:183). Finally, administrative segregation

is “a classification outside of general population.” (RR68:154). These

offenders are “housed singularly . . . [and they] recreate individually[.]”

(RR68:154).

An inmate coming into TDCJ with a life sentence is classified as a

G3 upon arrival. (RR68:155). A capital murderer with a life sentence

will be initially classified and housed with all other G3s. (RR68:157).

A G3 will change classification to a G2 after ten years of incarceration if

he has never taken a hostage or escaped a secure correctional facility.

(RR68:162).

Nelson testified that, on average, there are about 15,000 assaults

in prison each year. (RR68:165). This figure includes inmate-on-

40 inmate assaults as well as inmate-on-staff assaults. (RR68:165). In

prison, murders occur as well. (RR68:166). There have been murders

of inmates, guards, and civilian contractors. (RR68:166).

Dr. Richard Hughes, an educational psychologist, testified that

students in the Dallas Independent School District (DISD) are routinely

administered achievement tests and intelligence tests. (RR68:190).

Dr. Hughes reviewed records of Appellant’s scores on the California

Test of Mental Maturity and the Iowa Test of Educational

Development. (RR68:190, 192-93; SX246-247). Both tests have an

average score of 100 with a standard deviation of 15. (RR68:192).

Because these tests are group-administered, they are less reliable than

an individualized testing experience. (RR68:208).

Appellant was administered the California Test of Mental

Maturity when he was in second grade in May of 1973. (RR68:200).

The California Test of Mental Maturity is “a group-administered

measure of intelligence.” (RR68:198). Appellant scored a 78 language

IQ, a 92 non-language IQ, and an 82 total IQ. (RR68:198).

Appellant was administered the Iowa test in September of 1975.

(RR68:207). This test includes sections on reading, language arts,

41 math, social studies, science, the use of sources,20 and a composite.

(RR68:195). On the reading portion, his score of 91 falls within the

average range. (RR68:196). On the language arts section, he scored a

78, which falls within the borderline range. (RR68:196). Math was

Appellant’s highest score; he scored a 97-98, which is just below the

average score of 100. (RR68:197). On the social studies portion,

Appellant scored an 89-90, which is “one foot in the low-average range.

The other in the average range.” (RR68:197). On the science portion,

Appellant scored an 83. (RR68:197). On the use of sources portion, he

scored a 93. (RR68:197). On the composite portion, he scored at the

88-89 level. (RR68:197).

Dr. Hughes also reviewed Appellant’s grades. Dr. Hughes noted

that “[g]rades are not good reflections of intellectual capacity.”

(RR68:201). Indeed, grades measure only “a student’s ability or

20 Dr. Hughes described the Use of Sources portion as follows:

The Use of Sources is a sub-test designed to see how a student can utilize sources to pursue answers to problems.

For example, multiple-choice questions might be posed that says in order to find the capital of the state of Texas, you would look in A, a dictionary; B, an encyclopedia; C, D, and choices like that, to see if they can select the correct source to obtain information that they are pursuing.

(RR68:195). 42 willingness to comply, whether they bring their homework assignment

in on time or whether they push through an extra-credit project or

whether they complete their class work assignment.” (RR68:201).

Grades do not measure cognitive functioning. (RR68:201).

Elementary school children are evaluated using a numerical system,

giving grades of one through four. (RR68:199-200). A one is assigned

for “rapid progress,” a two for “satisfactory progress,” a three for

“acceptable progress,” and a four for “little or no progress.” (RR68:200).

In junior high and high school, students are given grades of A through

F. (RR68:199).

In his elementary years, Appellant received a number of 3s and

4s. (RR68:203). In sixth grade, Appellant received Bs, Cs, and Ds.

(RR68:204). In seventh grade he received Ds and Fs. (RR68:203). In

eighth grade he received all Fs. (RR68:203). When Appellant started

attending Metro North in tenth grade, he received Bs and Cs.

(RR68:203). Appellant was moved to Metro North after his head injury

at Fair Park. (RR68:210). Metro North is “an alternative regular-

education program that was on a special class placement for

handicapped students.” (RR68:204).

43 Appellant’s grades stand in contrast to his test scores, which

reflect an ability to do well in school. (RR68:201-02). Had Appellant

applied himself in school, his grades would have been better.

(RR68:202). There is no evidence in Appellant’s DISD records that he

was ever placed in a special education program. (RR68:207). “The

records from Dallas ISD indicate his education was all offered within

the general education program.” (RR68:207). Notably, Appellant’s

school records “are not consistent with a student that’s mentally

retarded.” (RR68:207).

Forensic psychologist and neuropsychologist, Dr. Randy Price,

testified that Appellant does not meet the definition of intellectually

disabled as that term is described in Special Issue No. One. (RR69:14).

Dr. Price became involved in Appellant’s case in 2003. (RR69:18). Dr.

Price was scheduled to interview Appellant on July 13, 2014, but he was

unable to do so as Appellant refused. (RR69:21-22).

SUMMARY OF THE ARGUMENT

Issues 1-7: The trial court did not err in denying Appellant’s

Batson challenges to the following prospective jurors: Biswas, Tilley,

Moore, Nohe, Figures, McGowan, Prieston, and Barbosa.

44 Issues 9-23: The trial court did not err in denying Appellant’s

challenges for cause to fifteen prospective jurors. He was not denied the

right to a fair and unbiased jury.

Issues 24-30: The trial court did not err in granting the State’s

challenges for cause against the following prospective jurors: Kingery,

Morris, Davila, Hawkins, Kinzie, Flores, and Hogan.

Issue 31: The decision by the United States Supreme Court in

Hall v. Florida, 134 S. Ct. 1986 (2014), did not invalidate this Court’s

decision in Ex parte Briseno.

Issue 32-34: The trial court did not err in denying Appellant’s

request to quash the panel of prospective jurors. The trial court did not

err in denying Appellant’s request to re-question the jurors following

Hall.

Issue 35-36: Appellant was not deprived of a lawfully

constituted jury.

Issue 37: The trial court properly denied Appellant’s Motion to

Disqualify the District Attorney’s Office after Appellant’s former

second-chair counsel, Russell Wilson, accepted a job at the Dallas

County District Attorney’s Office. While it is true that Wilson was

45 disqualified from assisting in the prosecution of Appellant’s case, the

elected district attorney and his other assistants were not.

Issue 38: The trial court properly overruled Appellant’s motion

for mistrial during the competency trial when the prosecutor referred to

the “murder weapon.” Alternatively, any alleged error was cured by the

trial court’s instruction to disregard.

Issue 39: Appellant’s objection to the prosecutor’s question

during the competency trial regarding the 1987 reversal of Appellant’s

punishment is not properly before this Court. Regardless, the same

information was later received elsewhere without objection.

Issue 40-41: The evidence is both legally and factually sufficient

to prove Appellant’s competency to stand trial.

Issue 42: The trial court properly overruled Appellant’s

objection to Dr. Price’s testimony that Appellant exhibits traits

consistent with anti-social personality disorder. Alternatively, any

alleged error is harmless.

Issue 43: Although Dr. Price testified regarding Appellant’s

lack of remorse during a sub rosa hearing, he did not do so before the

jury.

46 Issue 44: The trial court did not err in admitting a silhouette of

a knife as a demonstrative aid. Alternatively, any alleged error is

harmless.

Issue 45: The trial court properly admitted the photographs

from Mildred’s and Fred’s autopsies as they help to explain the nature

and extent of their injuries. Alternatively, any alleged error is

Issue 46: The trial court did not err in overruling Appellant’s

objection to the victim-impact testimony from the Finches’ son-in-law,

James Belt, Jr.

Issue 47-48: Appellant failed to prove by a preponderance of the

evidence that he was intellectually disabled. The jury’s answer to the

intellectual disability special issue was not so against the great weight

and preponderance of the evidence so as to be manifestly unjust.

Issue 49: The evidence is legally sufficient to support the jury’s

decision to find that Appellant is a future danger.

Issue 50: The trial court did not err in overruling Appellant’s

requested jury instructions regarding significantly sub-average general

47 intellectual functioning. One of the proffered instructions was

incorrect. The other was a comment on the weight of the evidence.

Issue 51: The trial court did not err in overruling Appellant’s

request that the jury not be required to be unanimous regarding the

intellectual disability special issue. Appellant presents no authority

mandating such an instruction.

Issue 52: The trial court did not err in overruling Appellant’s

request for an instruction in the punishment charge that Lonnie

Thomas was an accomplice witness. He points to no authority that this

instruction is required in a punishment charge.

Issue 53: The trial court did not err in overruling Appellant’s

request for an anti-parties charge. Contrary to the statements in his

brief, the guilt-innocence instruction did not include a parties’

instruction.

Issue 54: The trial court did not abuse its discretion in denying

Appellant’s motion, filed prior to sentencing, for an additional inquiry

into Appellant’s competency to stand trial. Appellant failed to present

evidence of a material change in circumstances suggesting that

Appellant’s mental status had deteriorated.

48 Issue 55: Appellant’s claim that the evidence is insufficient to

support his conviction for capital murder presents nothing for this

Court’s review. Appellant was retried on punishment only. His guilt

was not at issue.

Issues 56-67: The trial court properly denied Appellant’s

challenges to the death penalty. Appellant concedes that this Court has

previously overruled these issues.

ARGUMENT

STATE’S RESPONSE TO ISSUE NOS. 1-7: THE TRIAL COURT DID NOT ERR IN DENYING APPELLANT’S BATSON CHALLENGES.

In Issues 1 through 7, Appellant contends that the trial court

erred in overruling his objection based on Batson v. Kentucky, 476

U.S.79 (1986), to the State’s use of peremptory challenges on

prospective jurors Neena Biswas, Leon Tilley, Deborah Moore, Pronsak

Nohe, Cassie Figures, Mary McGowan, Artherine Prieston, and Martha

Barbosa. (Appellant’s Brief pp. 34-50). These contentions lack merit

and should be overruled.

Applicable Law

The U.S. Constitution prohibits the use of peremptory challenges

to exclude prospective jurors on the basis of race. See Batson, 476 U.S. 49 at 85; Watkins v. State, 245 S.W.3d 444, 447 (Tex. Crim. App. 2008).

Under Batson, a defendant must first make a prima facie showing that

the prosecution exercised its peremptory challenges on the basis of race.

Reed v. Quarterman, 555 F.3d 364, 368 (5th Cir. 2009). If the defendant

makes that showing, the burden shifts to the prosecutor to present race-

neutral explanations for striking the jurors in question. Id. The court

must then determine whether the defendant has carried his burden of

proving purposeful discrimination. Id.

At the second step of this process, the proponent of the strike need

only tender an explanation that is race-neutral. Watkins, 245 S.W.3d at

447. The ultimate plausibility of that race-neutral explanation is to be

considered as part of the third step of the analysis, in which the trial

court determines whether the opponent of the strike (usually the

defendant) has satisfied his burden of persuasion to establish by a

preponderance of the evidence that the strike was indeed the product of

the proponent’s racial discrimination. Id. Whether the opponent

satisfies his burden of persuasion to show that the proponent’s facially

race-neutral explanation for his strike is pre-textual, not genuine, is a

question of fact for the trial court to resolve in the first instance. Id.

50 This Court should not overturn the trial court’s resolution of the

Batson issue unless it determines that the trial court’s ruling was

clearly erroneous. See Watkins, 245 S.W.3d at 447-48. In assaying the

record for clear error, vel non, this Court should consider the entire

record of voir dire; it need not limit itself to arguments or considerations

that the parties specifically called to the trial court’s attention so long

as those arguments or considerations are manifestly grounded in the

appellate record. Id. at 448. A trial court’s conclusion that a facially

race-neutral explanation for a peremptory challenge is genuine, rather

than a pretext, should be given great deference and reversed only when

that conclusion is, in view of the record as a whole, clearly erroneous.

Id.

Analysis

Appellant failed to establish a prima facie case of discrimination but the issue is moot.

After the competency trial, but before the punishment jury was

sworn, Appellant objected to the composition of the jury under Batson.

(RR59:66). He identified eight minority veniremembers that the State

struck. (RR59:66). The Court did not immediately rule and instead

asked, “What says the State?” (RR59:67). Without requesting a ruling, 51 the State introduced a copy of and read into the record, the Dallas

County District Attorney’s Office policy regarding Batson claims.

(RR59:67-68; SX3Z). The prosecutor then provided a “breakdown [of]

the strikes” to show that the State did not use a disproportionate

number of strikes on the basis of race or gender. (RR59:68-70). At that

point, the State objected “to the Court having found a prima facie case”

and asked for a ruling. (RR59:70-71). The Court stated that it would

“withhold at this moment a ruling on whether the Defense has made a

prima facie case or not and have the State go into [an] explanation of

their strikes.” (RR59:71). The State then explained its strikes.

(RR59:71-76).

At the conclusion of the State’s explanation, the trial court found

that “the strikes made by the State were not based upon the panel

members’ race. They were neutral in that respect, and denies the

Batson.” (RR59:77). The State then requested a ruling regarding its

prior objection that Appellant failed to present a prima facie case.

(RR59:77). The trial court stated that it was “of the opinion that a

prima facie case was not presented by the Defense.” (RR59:77).

52 The issue of whether Appellant established a prima facie case that

the State exercised its peremptory strikes on the basis of race is moot.

“Once a prosecutor has offered a race-neutral explanation for the

peremptory challenges and the trial court has ruled on the ultimate

question of intentional discrimination, the preliminary issue of whether

the defendant had made a prima facie showing becomes moot.”

Hernandez v. New York, 500 U.S. 352, 359 (1991); see also Watkins, 245

S.W.3d at 447. Because the State articulated the reasons for its strikes

and the trial ruled on the ultimate question of purposeful

discrimination, the preliminary issue of whether Appellant established

a prima facie case is moot and not subject to review on appeal. See

Chambers v. State, 866 S.W.2d 9, 23 (Tex. Crim. App. 1993) (stating,

“where the State fails at trial to object to the trial court’s failure to rule

on the defendant’s prima facie case, that issue becomes moot and it

cannot be raised on appeal”). This Court must therefore assume that

Appellant satisfied his step-one obligation to make a prima facie case of

purposeful discrimination and address only the second and third steps.

See Watkins, 245 S.W.3d at 447.

53 The State’s race-neutral explanations

At the second step of the Batson process, the prosecutor need

only tender an explanation that is race-neutral on its face. Purkett v.

Elem, 514 U.S. 765, 768 (1995) (indicating the State’s burden here is to

present a facially valid explanation for its strike); Watkins, 245 S.W.3d

at 447. The State satisfied this burden.

Figures, Prieston, Barbosa, Tilley, Moore, Nohe

At the Batson hearing, the State stated that it struck Figures,

Prieston, Barbosa, Tilley, Moore, and Nohe because they ranked

themselves as either a “3” or “4.” (RR59:72-73). The State explained

that it struck all qualified veniremembers who ranked themselves as

either a “3” or a “4.” (RR59:72-73). Question No. 2 on the questionnaire

asked: “With reference to the death penalty, which of the following

statements best represents your feelings?” (Figures, Juror 755, Q. p.1).

A ranking of “3” indicated the following opinion: “Although I do not

believe that the death penalty should ever be imposed, as long as the

law provides for it, I could assess it under the proper set of

circumstances.” (Figures, Juror 755, Q. p.1). A ranking of “4” indicated

the following opinion: “I believe that the death penalty is appropriate

54 in some murder cases, but I could never return a verdict which assessed

the death penalty.” (Figures, Juror 755, Q. p.1).

The State’s reasons were grounded in these jurors’ opinions

about the death penalty and are race-neutral. Courts have found

similar grounds as facially neutral. See, e.g., Mathis v. State, 67 S.W.3d

918, 924-25 (Tex. Crim. App. 2002) (holding prosecutor’s explanations—

that he struck a juror because she was in favor of the death penalty

only in two specified circumstances and she felt the death penalty was

imposed too frequently—were facially race-neutral).

Biswas

The State explained that it struck Dr. Neena Biswas, Juror 64, an

Asian female, for a number of reasons. (RR59:73). Biswas

demonstrated concern about being a part of the trial process: she asked

the trial court whether and why it was necessary for Appellant to be

present and she stated that as a physician and healer, she was

uncomfortable dealing with the death penalty. (RR59:73). She stated

that she could not take the oath. (RR59:74). She stated that she would

not follow the law. (RR59:74). Biswas stated that she would require

the State to re-prove guilt and that she would increase the State’s

55 burden of proof. (RR59:74). She stated that she would not be able to

determine credibility but that police officers have more credibility.

(RR59:74). Biswas “had Fifth Amendment issues.” (RR59:74). Biswas

also informed the trial court that she was seeking employment, which

may affect her ability to serve. (RR59:73). These explanations were

race-neutral. See, e.g., Watkins, 245 S.W.3d at 450-51 (prosecutor’s

explanation in a burglary case that the juror would hold the State to a

higher burden than proof beyond a reasonable doubt was race-neutral).

McGowan

The State explained that it struck McGowan due to her stated

belief that “prosecutors are out to get people.” (RR59:75). This

explanation does not reflect an inherently discriminatory intent. See

Johnson v. State, 68 S.W.3d 644, 649-50 (Tex. Crim. App. 2002) (finding

prosecutor’s explanation that a juror was resentful toward law

enforcement was race-neutral).

Additionally, McGowan believed that (1) a difficult childhood

may lead someone to make bad choices to get attention and (2) if

someone commits an offense while on drugs, he should be sent to rehab.

(RR59:75). These explanations are also race-neutral. See Adanandus v.

56 State, 866 S.W.2d 210, 224-25 (Tex. Crim. App. 1993) (finding a

veniremember’s views regarding the role of rehabilitation in

punishment to be a race-neutral explanation for the use of a peremptory

challenge).

Conclusion

The record supports all of the State’s proffered race-neutral

explanations for exercising peremptory strikes against the eight

prospective minority jurors. Therefore, the trial court did not clearly

err in finding that the State satisfied its step-two burden of production

to tender facially race-neutral explanations for its peremptory strikes.

See Watkins, 245 S.W.3d at 451.

Appellant failed to establish by a preponderance of the evidence that the strikes were the product of purposeful discrimination

Appellant failed to demonstrate purposeful discrimination by the

State. Here, the defendant has the burden to persuade the trial court

that the prosecutor’s explanations for the State’s strikes were incredible

or disingenuous. Watkins, 245 S.W.3d at 457. The focus of the Batson

inquiry in this stage is on the genuineness, not reasonableness, of the

asserted non-racial motive. Nieto v. State, 365 S.W.3d 673, 676 (Tex.

57 Crim. App. 2012). The question of pretext is a question of fact for the

trial court to resolve, subject to reversal on appeal only for clear error.

Watkins, 245 S.W.3d at 457.

Appellant primarily contends that the State’s strikes must have

been racially motivated because these jurors were qualified jurors and

some had characteristics potentially favorable to the State’s position on

the death penalty. (Appellant’s Brief pp.35-41). The jurors’

qualifications for jury service are irrelevant to the analysis, however.

Factors relevant to determining whether purposeful discrimination has

been proven include the following:

1. whether the State utilized its option to shuffle the jury panels in a manner that supported an inference of race discrimination;

2. whether the prosecutor’s office trying the case followed a formal policy to exclude minority venire members from jury service which was known to at least one of the prosecutors at trial;

3. whether the State exercised its peremptory challenges to eliminate a far greater proportion of minority venire members than non-minority venire members;

4. whether the reasons the State asserted for eliminating the minority venire members in question appeared to apply equally well to many

58 non-minority venire members whom the State did not challenge; and

5. whether the State directed questions expressly designed to elicit grounds for peremptory challenges disproportionately, in a manner that suggested an intent to single out minority venire members for elimination.

Watkins, 245 S.W.3d at 448-49 (relying on Miller-El v. Dretke, 545 U.S.

231, 240-64, 266 (2005)). This Court looks to the collective and

cumulative impact of these non–exclusive factors in determining

whether an inference of racial discrimination is so powerful that it

overcomes the deference given to trial courts. See id. at 449.

An analysis of these factors demonstrates that Appellant’s claim

of purposeful discrimination lacks merit.

1. Jury Shuffle

The jury pool was not shuffled in this case. The parties selected

the group of qualified jurors from a February 21, 2014 special venire.

(RR9). Appellant does not assert or demonstrate that the venire was

shuffled or otherwise arranged in a manner to decrease the possibility

of a minority member.

2. Formal Policy Prohibits Discrimination

The Dallas County District Attorney’s office’s notorious formal 59 policy of excluding minorities is a relic of a bygone era. It is common

knowledge that the office policy of the last several years not only forbids

such discrimination, it requires an investigation into sustained Batson

challenges and authorizes discipline ranging from reprimand to

termination. At the Batson hearing, the trial court admitted a written

copy of the District Attorney’s Batson policy into evidence for record

purposes and the prosecutor read it into the record. (RR59:67-68;

SX3Z).

3. Proportionality of Strikes

Appellant argues that even one racially motivated peremptory

strike violates Batson yet he fails to demonstrate a pattern of

discriminatory strikes. Appellant does not identify the size or racial

makeup of the pool of qualified venire members. He does not analyze

the number of strikes used by either side or how they were used.

Instead, he relies on the jurors’ questionnaires, arguing that certain

State-struck jurors gave answers similar to those who were not struck

by the State. Appellant then argues that the State used 8 of its 14

peremptory strikes to eliminate 57% of the minorities on the qualified

60 prospective jury panel, a statistic with which the State disagrees.

(Appellant’s Brief p. 49).

The data evinces no discriminatory intent by the State. The panel

of qualified venire members consisted of 45 people. Of these, 16 (36%)

were African-American, 23 (51%) were Caucasian, 3 (7%) were

Hispanic, and 3 (7%) were Asian. The State exercised 14 peremptory

strikes. Of those 14 strikes, 5 (36%) were used on African-Americans, 6

(43%) were used on Caucasians, 1 (7%) was used on a Hispanic juror,

and 2 (14%) were used on Asians. Appellant exercised 17 peremptory

strikes. Of his 17 strikes, 6 (35%) were used on African-American

jurors, 9 (53%) were used on Caucasian jurors, and 2 (12%) were used

on Hispanic jurors. The result was a 12-member jury consisting of 3

African-American jurors, 8 Caucasian jurors, and 1 Asian juror, with 2

African-American alternate jurors.

By striking 8 of the 22 possible minority veniremembers, the State

eliminated only 36% of the minorities on the panel, not 57% as

Appellant alleges. Nevertheless, the number of minorities struck by the

State is, by itself, an irrelevant statistic. It gains relevance only by

establishing its correlation to the entire panel. See Woodward v. Epps,

61 580 F.3d 318, 339 (5th Cir. 2009) (holding that the State’s striking 100

percent of the black jurors alone does not support a finding of

discrimination and does not show any disparity in relation to the non-

minority jurors). In Appellant’s case, the correlation shows no

discriminatory intent.

Of the 45 venire members who could conceivably be chosen for the

jury, 22 (49%), were members of a minority. A random selection would

yield either 6 or 7 minority jurors in the 14 jurors selected (12 plus 2

alternates) (or 49% of fourteen, equaling 6.86 jurors). See Watkins, 245

S.W.3d at 451-52 (holding a random selection from a 22% African-

American venire would yield 2 or 3 black jurors because 22% of 12

jurors, plus 1 alternate, was 2.86). This jury panel had 4 minority

jurors and 2 minority alternate jurors. Thus, 49% of the qualified

jurors were minorities and 43% of the 14-person jury were minorities.

This jury had only slightly less than the expected amount of minority

members as would be expected from a random selection of the 45

qualified jurors. Statistical analysis simply fails to show any racial

discrimination.

62 4. Comparative Analysis

Appellant contends on appeal that the prosecutor’s stated reasons

are a pretext for racial discrimination because the minority State-struck

jurors gave responses to certain questions on their questionnaire that

are similar to jurors not struck by the State. (Appellant’s Brief p.42).

Importantly, however, at the Batson hearing, defense counsel failed to

provide any comparative analysis regarding the jurors. (RR59:66, 71,

76). And, counsel asked only one question of the prosecutor: whether

the jurors who ranked themselves as “3s,” “4s,” or “5s” on their

questionnaire were going to be struck without regard to the jurors’

qualifications. (RR59:76). The prosecutor was not questioned any

further regarding his reasons for not striking any similarly-situated

venire members. (RR59:76). As such, the prosecutor had no opportunity

to respond to counsel’s allegations. Appellant should not be permitted

to raise claims of disparate treatment for the first time on appeal. By

failing to properly present this claim at trial, he denied the prosecutor

the opportunity to create a record on the prosecutor’s strategy, and he

denied the trial court an opportunity to rule on the claim. Whether a

prosecutor intended to discriminate on the basis of race is a question of

63 historical fact properly decided in the trial courts. See Hernandez, 500

U.S. at 367-69. State procedural rules demand that allegations of

disparate treatment by the prosecutor be raised in the trial court, so

that they can be properly answered by the State and decided by that

court. See Tex. R. App. P. 33.1(a); Watkins, 245 S.W.3d at 457-58

(Keller, P.J., concurring); Young v. State, 826 S.W.2d 141, 147-49 (Tex.

Crim. App. 1991) (Campbell, J., dissenting).

The State acknowledges this Court’s majority opinion in Young,

that a non-capital defendant is not required to raise a comparative

analysis in the trial court to have evidence of such considered on appeal.

Young, 826 S.W.2d at 145-46. The Fifth Circuit has applied Young to a

capital case and criticized this Court’s inconsistency in its application of

the contemporaneous objection rule to Batson claims in capital cases.

Reed, 555 F.3d at 370.

This Court should explicitly overrule Young. See generally

Watkins, 245 S.W.3d at 457-58 (Keller, P.J., concurring). Its majority—

and the courts that rely on it—view the comparative analysis as merely

an appellate argument that can be fairly addressed for the first time on

appeal. Young, 826 S.W.2d at 146. In truth, it is a factual allegation of

64 unfair treatment between jurors. If properly raised in the trial court,

the prosecution’s response may provide additional facts for the

appellate court to consider when reviewing the Batson ruling. If raised

at trial successfully, the trial court can cure the error before trial even

begins.

If not raised at trial, the prosecutor’s mental process and the trial

judge’s credibility decision concerning the non-strikes are simply

omitted from the record. Jurors are not products of a set of cookie

cutters, and the unexplained decision not to strike a non-minority juror

who shares one trait in common with a minority juror is held against

the State on appellate review. See, e.g., Miller-El, 545 U.S. at 244

(stating, “If, indeed, Fields’s thoughts on rehabilitation did make the

prosecutor uneasy, he should have worried about a number of white

panel members he accepted with no evident reservations.”) (emphasis

added). The prosecutor’s explanation of his voir dire strategy and the

trial court’s ruling on the strategy is critical to a fair appellate review.

At the very least, a prosecutor should enjoy favor on appeal when

the matter is not raised at trial, much like the presumption against a

finding of ineffective assistance of defense counsel. In claims regarding

65 violations of a client’s constitutional right to counsel, this Court has

stated that “counsel should ordinarily be accorded an opportunity to

explain her actions before being condemned as unprofessional and

incompetent.” Bone v. State, 77 S.W.3d 828, 836 (Tex. Crim. App.

2002). A prosecutor’s credibility is the heart of Batson review, and he

should be accorded no less of an opportunity to explain his actions.

This Court should conclude that the comparative analysis is not

preserved for review or, alternatively, presume that the comparative

analysis favors the prosecutor absent affirmative evidence on the

record.

In any event, Appellant has wholly failed to establish that the

potential jurors who are the focus of his Batson challenge were similarly

situated to non-minority potential jurors who were not struck.

The record supports the State’s assertion that it struck each and

every qualified prospective juror regardless of race who ranked

him/herself as a “3” or a “4,” on Question 2 of their questionnaire.

(RR59:72-73). This includes the following prospective jurors: Cassie

Figures (Juror 755, an African-American female); Artherine Prieston

66 (Juror 1055, an African-American female); Martha Barbosa (Juror 1095,

a Hispanic female); Jeffrey Nicholson (Juror 281, a Caucasian male);

Kelsey Hooten (Juror 445, a Caucasian female); and, Christen Morris

(Juror 1097, a Caucasian female). (RR59:72; Figures, Juror 755, Q. p.1;

Prieston, Juror 1055, Q. p.1; Barbosa, Juror 1095, Q. p.1; Nicholson,

Juror 281, Q. p.1; Hooten, Juror 445, Q. p.1; Morris Juror 1097, Q. p.1).

The State also struck every person on the qualified-juror panel

that selected number “4.” (RR59:72-73). This includes the following

prospective jurors: Leon Tilley (Juror 126, an African-American male);

Deborah Moore (Juror 225, an African American female); Pornsak Nohe

(Juror 497, an Asian male); Macy Haag (Juror 408, a Caucasian

female); and, Suzanne Morrison (Juror 920, a Caucasian female).

(RR59:73; Tilley, Juror 126, Q. p.1; Moore, Juror 225, Q. p.1; Nohe,

Juror 497, Q. p.1; Haag, Juror 408, Q. p.1; Morrison, Juror 920, Q. p.1).

Appellant points to no evidence to the contrary. He cannot show

disparate treatment of Figures, Prieston, Barbosa, Tilley, Moore, and

Nohe compared to accepted non-minority veniremembers. As such,

Appellant has failed to show that the prosecutor’s explanation was a

pretext for discrimination. See Broadnax v. State, No. AP-76,207, 2011

67 Tex. Crim. App. Unpub. LEXIS 920, at *7-8 (Tex. Crim. App. Dec. 14,

2011) (not designated for publication) (holding no pretext where

prosecutor struck all jurors who believed death penalty should never be

invoked).

Neena Biswas

The State explained that it struck Biswas because she was not a

qualified juror. (RR59:73-74). First, Biswas voiced concerns about

determining punishment without having participated in the

determination regarding Appellant’s guilt or innocence. According to

Biswas, the guilt/innocence portion of trial is the most important part of

the process, not the determination of punishment. Her concerns were so

great that it would affect her ability to take the oath as a juror to follow

the law. The following exchange took place:

[Prosecutor]: Okay. So what I’m hearing from you is that the Judge may give you a jury instruction and charge that you are not allowed to consider the Defendant’s guilt or innocence, because he’s already been found guilty.

[Biswas]: Correct.

[Prosecutor]: What I’m hearing from you is that you could not follow that law.

68 [Biswas]: Absolutely. I will not actually follow it, without the evidence, without the data. I wouldn’t do a good job. I mean, I would need a lot of details. And that is what I do in my work.

[Prosecutor]: And so in your mind, do you feel, based on your concern about hearing the facts and circumstances of the case and not being a part of part of [sic] that guilt-or- innocence decision, do you feel like you would make the State prove to you beyond a reasonable doubt again that the Defendant is guilty of capital murder?

[Biswas]: No, I would not. I will not make a decision. Because I was not involved in the actual thing, if he was guilty or not. And I think that is the actual thing. Because, what comes after the fact is just, oh, how are we going to deal with the problem? Problem’s already been figured out. I was not part of that, so I would not be able to decide.

[Prosecutor]: We have to use legal terms here. You said you could not be able to decide. Does that mean - - the law says each juror would have to take an oath that they will a true verdict render, based on the law and the evidence.

Are you saying that you could not take that oath?

[Biswas]: I will not take that oath. Because I was not part of the actual decision. I could take the oath. But, like I said, I would prefer not to give a decision “yes” or “no.”

[Prosecutor]: Okay. So you told me both things. So we have to have affirm [sic] “yes” or “no” that you will not take that oath or could not take that oath.

69 [Biswas]: I could not take that oath.

(RR14:50-51) (emphasis added). Shortly after the above-mentioned

exchange, Biswas stated that she could take the oath, but the issue of

guilt would remain in the back of her mind. (RR14:54). She stated that

she would have difficulty in following an instruction not to consider

Appellant’s guilt or innocence in answering the special issues.

(RR14:73, 74). The issue of Biswas’ lack of participation in the

guilt/innocence portion of trial was a recurring theme in her responses.

The following exchange took place:

[Prosecutor]: Dr. Biswas, we already talked about, in Special Issue Number One, that you may hear evidence and testimony that includes the facts and circumstances of the offense for which the Defendant was found guilty.

So you already understand that, correct?

[Prosecutor]: But you still say that you would still - - it would still be stuck in your mind, and it would color your answers to these questions: Is this person guilty or not guilty of this offense?

70 (RR14:75-76).

Second, Biswas expressed concern about her ability to answer the

deliberateness special issue because “we don’t know what was going on

in that person’s mind at that time. We don’t know why he took that

action . . . I don’t know why the guilty verdict was achieved.”

(RR14:67). She testified that she would not be able to make credibility

determinations “again, because I was not involved in the guilty or not

guilty verdict, which I think is the main crux of any case.” (RR14:70).

Third, when asked whether she would require the State to prove

Appellant’s guilt beyond a reasonable doubt before she would consider

the special issues Biswas said “Yes.” (RR14:52). But then a short time

later, she said, “I’m not saying you have to prove it again, because it

cost [sic] a lot of money.” (RR14:53). With regard to the future danger

special issue, however, Biswas agreed that she would hold the State to a

higher burden of proof because “[she] was not part of the guilty/not

guilty trial.” (RR14:83).

Fourth, Biswas testified that she did not agree with a criminal

defendant’s Fifth Amendment right not to incriminate himself.

(RR14:86). Initially, she said that if instructed not to consider the fact

71 that Appellant did not testify that she could not follow that instruction.

(RR14:86). Then she stated that she could follow the law, but she did

not agree with it and it would weigh on her mind as she deliberated the

special issues. (RR14:86-87).

Finally, Biswas testified that she would place police officers’

credibility above that of other witnesses. (RR14:88-89). She testified

that she “would give them the benefit of the doubt.” (RR14:89). During

her questioning by the defense, Biswas agreed to follow the law and not

start a police officer at a higher level of certainty. (RR14:108).

On appeal, in support of his argument that the prosecutor’s

explanations are a pretext, Appellant points out that Biswas – like 17

other jurors that the State accepted – ranked herself as a “2” on

Question 2, indicating a belief that “the death penalty is appropriate in

some murder cases, and I could return a verdict in a proper case which

assessed the death penalty.” (Biswas, Juror 64, Q p.2). In truth,

because the State struck all 3s and 4s, the only jurors left for the State

to accept were 2s. Therefore, this argument does nothing to further

Appellant’s claim.

72 The State does not dispute that Biswas’s responses to certain

questions in the questionnaire are the same as those of other accepted

venire members. The questionnaire should not be considered in a

vacuum, however. This is especially true as it pertains to Biswas

because, while she may appear to be a qualified juror on paper, during

testimony, Biswas vacillated on her ability to perform the most basic

duty required of a juror: taking the oath and following the law. As

such, the State had legitimate reason to be concerned about Biswas

sitting as a juror in a capital murder case. Since the trial court denied

the State’s challenge for cause, the State exercised a peremptory

challenge. Notably, the State struck all 9 jurors that it had

unsuccessfully challenged for cause: Biswas (Juror 64, an Asian

female), Leon Tilley (Juror 126, an African-American male), Deborah

Moore (Juror 225, an African-American female), Macy Haag (Juror 408,

a Caucasian female), Pornsak Nohe (Juror 497, an Asian male), Cassie

Figures (Juror 755, an African-American female), Suzanne Morrison

(Juror 920, a Caucasian female), Mary McGowan (Juror 955, an

African-American female), and Artherine Prieston (Juror 1055, an

African-American female).

73 The record supports the genuineness of the State’s explanations

for striking Biswas. Appellant has failed to show that the prosecutor’s

explanation was a pretext for discrimination.

Mary McGowan

The State explained that it struck McGowan because of her bias

against the State and because of her belief in rehabilitation rather than

incarceration, even in cases involving capital murder. During voir dire,

after the prosecutor explained the special issues, he asked McGowan to

elaborate on her response to Question 32, which asks the prospective

juror to write the word that first comes to mind when they think of

certain professions. (McGowan, Juror 955, Q p.6). Regarding

prosecutors, McGowan wrote “they are always out to get a person.”

(McGowan, Juror 955, Q p.6). She affirmed this statement when she

testified that “I feel like - - well, in Texas here, I feel like - - it depends

on the prosecutors. The majority of them - - . . . - - I just feel like they

are out to get that person.” (RR42:25). She continued:

So the prosecutor - - I can understand they have to do their job, too. Because they’re a prosecutors [sic], that’s their job to do that. But I think sometimes it’s unfair, and I think that the prosecutor is actually out to get that person really. Just my opinion.

74 (RR42:25). Later in the questionnaire, on Question 36F, McGowan

wrote that she “Strongly Agree[d]” with the statement, “The Criminal

Justice System in Dallas County is untrustworthy.” (McGowan, Juror

955, Q p.7).

McGowan also demonstrated a preference for rehabilitation

rather than punishment. On Question 42 of her questionnaire, she

ranked rehabilitation as the most important objective of punishment.

(McGowan, Juror 955, Q p.8). She testified that rehabilitation should

always be the first option in sentencing. (RR42:28). “Then, if they fail

rehab, if they go back again continuously, then make another decision.”

(RR42:28). She continued, “But I just feel like, in some cases, where

somebody do [sic] something bad, commit murder or whatever, I feel

like rehab should be the first thing that should happen.” (RR42:28).

According to McGowan, rehabilitation should be an option even in cases

involving the death penalty. (RR42:29).

On appeal, Appellant argues that the State’s explanations are a

pretext because McGowan’s responses to certain questions on her

questionnaire matched those of other veniremembers who were

accepted by the State. As previously argued, the questionnaire cannot

75 be considered in a vacuum. McGowan (like Biswas and like the 17

jurors the State accepted) ranked herself as a “2” on her questionnaire.

(McGowan, Juror 955, Q p.2). As stated above, this similarity is

insignificant in light of the fact that the only jurors that the State

accepted were 2s. Moreover, the State notes that despite having

ranked herself as a “2,” on Question 36C, McGowan wrote that she

agreed that the death penalty should be abolished. (McGowan, Juror

955, Q p. 7).

The State acknowledges that McGowan answered other questions

similar to jurors that the State accepted: (1) she had no moral,

religious, or personal beliefs that would prevent her from sitting in

judgment of another human being; (2) she had no moral, religious, or

personal beliefs that would prevent her from returning a verdict that

would result in the execution of another human being; (3) she agreed

that life imprisonment or the death penalty are appropriate for someone

guilty of intentional murder committed during the course of a burglary;

(4) she agreed that some crimes call for the death penalty solely because

of their facts and circumstances; (5) she ranked the strength of her

belief in using the death penalty as a “7”; (6) she believed that

76 testimony from a police officer was the same as any other witness; and,

(7) she believed in the principle of “an eye for an eye.” (McGowan, Juror

955, Q p.8). Nevertheless, like Biswas, the fact that McGowan

answered certain questions the same as some accepted jurors does not

change the testimony she gave during voir dire. It was McGowan’s

testimony that set her apart from other jurors and it was that

testimony that caused the State to exercise a strike against her.

(RR59:75-76). The record supports the genuineness of the State’s

explanations for striking McGowan. Appellant has failed to show that

the prosecutor’s explanation was a pretext for discrimination.

Appellant has wholly failed to show that Jurors Figures, Prieston,

Barbosa, Tilley, Moore, Nohe, Biswas, or McGowan were similarly-

situated to non-minority jurors that were not struck by the State.

5. Disparate Questioning

Appellant points to no instances of disparate questioning by the

State. Cf. Miller-El, 545 U.S. at 256-57 (prosecutors used a graphic

script when describing the death penalty to African-American jurors

who were ambivalent to the death penalty more often than with white

77 jurors who also were ambivalent). Nor is any disparate questioning

apparent in the record.

Appellant has not established by a preponderance of the evidence

that the State’s exercise of its peremptory challenges against 8 minority

veniremembers was the product of racial discrimination. Appellant has

not shown that the State’s explanations apply equally to non-minority

venire members that the State did not challenge, that the State directed

questions expressly designed to elicit grounds for peremptory challenges

disproportionately, or that a formal policy excludes minorities from jury

service. The record before this Court supports the trial court’s

resolution of the fact question of pretext. Consequently, the trial court

did not err in denying Appellant’s Batson challenges. See Watkins, 245

S.W.3d at 456-57.

This Court should overrule Appellant’s first eight issues.

STATE’S RESPONSE TO ISSUE NOS. 9-23: THE TRIAL COURT DID NOT ERR IN DENYING APPELLANT’S CHALLENGES FOR CAUSE.

In Issues 9 through 23, Appellant contends that the trial court

erred in denying his challenges to 15 prospective jurors. In so doing,

Appellant argues, the trial court violated his right to a fair and 78 unbiased jury under the United States Constitution and article

35.16(c)(2) of the Texas Code of Criminal Procedure.

A prospective juror 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 defendant is entitled to rely. See Tex. Code Crim. Proc. Ann.

arts. 35.16(a)(9), (c)(2) (West 2006); Threadgill v. State, 146 S.W.3d 654,

667 (Tex. Crim. App. 2004).

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 venire member 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 prospective

juror 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.

79 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. Threadgill, 146

S.W.3d at 667; Saldano v. State, 232 S.W.3d 77, 91 (Tex. Crim. App.

2007). Particular deference is given when the venire member’s answers

are vacillating, unclear, or contradictory. Threadgill, 146 S.W.3d at

667. When the venire member is persistently uncertain about having

the ability to follow the law, the reviewing court defers to the trial court

decision. See Gardner v. State, 306 S.W.3d 274, 295-96 (Tex. Crim. App.

2009). 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).

Harm from the erroneous denial of a defense challenge for cause

occurs under the following circumstances: (1) a defendant exercises a

peremptory challenge on a prospective juror whom the trial court

80 erroneously failed to excuse for cause at the defendant’s request, (2) the

defendant uses all of his statutorily-allotted peremptory challenges, and

(3) the trial court denies the defendant’s request for an additional

peremptory challenge to use on another prospective juror whom the

defendant identifies as “objectionable” and who actually sits on the jury.

Saldano, 232 S.W.3d at 91. When all of these conditions are met, the

defendant has been wrongfully deprived of one of his statutory

peremptory challenges in that he was forced to use a peremptory

challenge to remove a prospective juror who should have been removed

for cause. See id. If the defendant received additional peremptory

challenges beyond the fifteen allotted by statute, he must show harm by

proving that the trial court erroneously denied a number of defense

challenges for cause equal to at least one more than the number of

additional peremptory challenges granted. Escamilla v. State, 143

S.W.3d 814, 821 (Tex. Crim. App. 2004).

The parties asserted their challenges for cause and peremptory

challenges at the conclusion of each prospective juror’s individual voir

dire. With the exception of Jennifer Wilder, following the trial court’s

81 denial of their challenges for cause, the defense exercised a peremptory

strike against each complained-of veniremember. Appellant exhausted

all fifteen of his statutory peremptory strikes on the following jurors:

Annie Fenster (Juror 36); Rebecca Sands (Juror 46); Dorce Jackson

(Juror 138); David Darden (Juror 186); Delores Sawyer (Juror 270);

Jonathan Henderson (Juror 288); Patricia Withers (Juror 323); Larry

Middleton (Juror 427); Isaac Tschewik (Juror 440); Michael Dawson

(Juror 469); Angela Thorpe-Harris (Juror 495); Christopher Weinzapfel

(Juror 612); Phillip Rapp (Juror 968); Nancy Ramos (Juror 1025); and

Jay Kirby (Juror 1052). (RR13:205-06; RR15:114; RR16:76; RR19:225;

RR20:226; RR22:86; RR26:152, 341; RR27:153; RR28:133; RR32:90:

RR42:71; RR44:20; RR45:68).

Appellant was granted two additional strikes, which he used to

remove Nathan Sosa (Juror 1070) and James Martin (Juror 1190).

(RR46:34; RR50:47). Appellant later asked for, and was denied,

another additional strike to exercise on Jennifer Wilder, whom

Appellant identified as objectionable. (RR52:87). Since Appellant

received two extra peremptory challenges in addition to the fifteen

allotted by statute, he must show that the trial court erroneously denied

82 at least three of his challenges for cause to the other veniremembers

identified in Issues 9 through 23. See, e.g., Saldano, 232 S.W.3d at 93

(noting that Saldano would have to show 3 erroneous denials because

he received two extra peremptory strikes).

Issue 9: Rebecca Sands

Appellant challenged Rebecca Sands for cause because she

believed that “if a person committed something intentionally, that was

a greater state of mind than deliberately[.]” (RR13:133). Appellant

argued that Sands’s definition of intentional and deliberate would then

cause her to automatically answer the deliberateness special issue21

affirmatively. (RR13:133).

Deliberate/Intentional

During the State’s voir dire, the prosecutor explained the

deliberateness special issue. (RR13:90-91). He explained that

“[d]eliberate falls more than intentional, but short of premeditation.”

(RR13:91). Sands stated that she could “see the difference” between

the terms. (RR13:91).

21 For ease of the reader, the State will refer to the special issues as follows: “the intellectual disability special issue” (Special Issue No. One); “the deliberateness special issue” (Special Issue No. Two); “the future danger special issue” (Special Issue No. Three); and, “the mitigation special issue” (Special Issue No. Four). 83 Upon questioning by the defense, Sands tried to articulate what

she, in her mind, understood the difference to be between intentional

and deliberate conduct. (RR13:117-18). She stated, “I guess deliberate,

to me, is more short-term than intentional. It’s like, a knee-jerk

reaction, but you knew what was going to happen.” (RR13:118). The

following exchange then took place:

[Defense Counsel]: Okay. So, in your mind, intentional is a higher process of thought and deliberate is a little bit more reactionary?

[Sands]: Yes. I think you can say that.

[Defense Counsel]: I think what you’re saying is, if it has already been determined that this was done intentionally, then it certainly was done deliberately.

[Sands]: Yes.

[Defense Counsel]: So if you were instructed that the person had already been convicted of doing this intentionally, your answer to Special Issue Number Two would, per your definition, be automatically “yes” because of the instructions of the Court?

[Defense Counsel]: Okay. That’s what I want to know. A lot of people feel that way. And there’s nothing wrong with it.

84 Isn’t this cruel, we don’t define these things and then we ask you to define them?

But if that’s how you feel, that’s - - you’re fine, if that’s your definition of deliberate, is something less than intentional. So question number two would be answered “yes” for you, because the Court’s instructed you that it was already determined that it was an intentional act?

[Sands]: I would like to see more of the details.

[Defense Counsel]: I understand that. We’re just asking you about your definitions.

[Sands]: Okay. That’s my definition.

(RR13:118-19). The above-mentioned exchange continued on for several

pages, with defense counsel repeatedly confirming Sands’ view that

“intentional” is a higher state of mind than “deliberate” while

simultaneously reassuring Sands that she was entitled to her opinion.

(RR13:119-24). Even when Sands appeared confused and stated, “I

don’t know where I’m at now[,]” defense counsel did not alleviate her

confusion, but merely stated:

I don’t want to confuse you. It’s just that, that is a strange, archaic, dinosaur question from back in the day. A lot of people have that issue. That’s why I’m asking you.

85 If the answer to Special Issue Number Two is “yes” for you, if it’s an intentional act already, that’s fine. We just need to know that.

And that’s your answer?

(RR13:120). Sands testified that she would “have to see more evidence”

but defense counsel cut her off, instructing that she was not asking how

Sands would vote, but rather was simply concerned with Sands’

definition of the terms. (RR13:122).

Importantly, at no point during the above-described exchange, did

defense counsel actually instruct Sands regarding the law or do

anything to correct her misunderstanding of the distinction between the

terms. As such, Sands was not subject to a challenge for cause based

on this exchange. See generally Threadgill, 146 S.W.3d at 667

(explaining that, 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).

A review of the entirety of Sands’ voir dire shows that she

understood that there is, in fact, a distinction between the terms

intentional and deliberate. (RR13:89-93, 117-18, 120). Although she

may have confused legal terms when she was questioned by the defense,

86 the record reflects that she would not automatically answer the

deliberateness special issue in the affirmative.

Questionnaire

On appeal, Appellant points to Question 9 on Sands’

questionnaire, which asks, “For what crimes do you think a sentence of

life imprisonment is the proper punishment?” (Sands, Juror 46, Q p.3).

Sands wrote, “NA.” Appellant fails to state why Sands’ response makes

her challengeable. Regardless, Appellant did not challenge Sands based

on this answer at trial; therefore, this complaint is not preserved for

review. See Tex. R. App. P. 33.1(a) (providing that a timely specific trial

objection is prerequisite to presenting a complaint on appellate review).

Regardless, during voir dire, when asked to explain this answer, Sands

testified that “that’s hard to elaborate on, because I don’t know the

crime.” (RR13:112). She then agreed that life imprisonment may be

proper punishment on a murder case. (RR13:112).

Appellant has failed to show that the trial court abused its

discretion in denying his challenge for cause against Sands. Issue 9

should be overruled.

87 Issue 10: Dorce Jackson

Appellant challenged Jackson for cause for the following reasons:

(1) in her questionnaire, she wrote that a life sentence would be

appropriate in cases of self-defense or mental illness; (2) she would

place a burden on the defense to provide evidence in connection with the

mitigation special issue; and, (3) she would increase the burden of proof

on the intellectual disability special issue. (RR15:111-12).

After questioning concluded, Appellant challenged Jackson for

cause because “in her questionnaire, she indicated that a life sentence

would only be appropriate where a person did not intend to do it or it

was self-defense or had some kind of mental illness.” (RR15:111). This

is a misstatement of Jackson’s answers in her questionnaire. On

Question 9, in response to a question asking “[f]or what crimes do you

think a sentence of life imprisonment is the proper punishment[,]?”

Jackson wrote, “maybe a crime of passion or when murder wasn’t

intended.” (Jackson, Juror 138, Q p.3). Jackson never mentioned self-

defense and she never mentioned mental illness. And, her response did

not indicate that murders involving crimes of passion and lack of intent

88 were the sole offenses that should be eligible for life imprisonment.22

Moreover, during questioning, Jackson testified that she “would agree”

with the statement that “the death penalty may not be appropriate in

some cases[.]” (RR15:40). She testified that she is “open to anything . .

. It just all depends.” (RR15:86).

Burden of Proof – Mitigation

Appellant challenged Jackson for cause on the basis of her

testimony that she would require the defense to present evidence or

convince her that Appellant should receive a life sentence. (RR15:111).

During the State’s voir dire, the mitigation special issue and the fact

that there was no burden of proof on this issue was explained to

Jackson. (RR15:70-76). Jackson indicated that she understood the

issue and responded in the affirmative when asked whether she could

consider mitigating evidence “whether it exists or not[.]” (RR15:81-82).

When she was questioned by the defense, the following exchange took

place:

[Defense Counsel]: Again, my question was: Would you require the Defense - - this table over here, the Defense - - to

22Defense counsel referenced this question during voir dire, but, because it was in the middle of a series of questions, Jackson never specifically answered him. (RR15:86). 89 provide you or convince you that the person should receive a life sentence instead of a death sentence?

[Jackson]: Would I want you to provide evidence to have a life sentence instead of death?

[Defense Counsel]: Correct.

[Jackson]: But that’s where I’m confused. Because, based on all of this - - going through the steps, wouldn’t I basically be taking that into consideration the whole time?

You’re going to provide evidence and they are, too, right?

[Defense Counsel]: Well, what I’m saying, on that issue, nobody has a burden. What I’m asking you is: Would you need - - in order for you to answer that question, would you require the Defense to provide you with mitigation evidence before you could answer Special Issue Number Four?

[Jackson]: Yes.

(RR15:109-10). The defense immediately concluded its questioning.

(RR15:110).

Jackson was not challengeable for cause on the basis of the above-

mentioned exchange. A veniremember is not challengeable for cause

simply because she will place the burden of proof on mitigation on the

defense. Saldano, 232 S.W.3d at 92.

90 Burden of Proof – Intellectual Disability Special Issue

During questioning, defense counsel reminded Jackson that the

defense bears the burden on the intellectual disability special issue.

(RR15:92). He asked Jackson what she thought about the fact that the

burden – preponderance of the evidence – was “a lower burden” than

beyond a reasonable doubt. (RR15:93). Jackson answered, “There

should be a preponderance of the evidence. I should be able to say I’m

clear on that.” (RR15:93). Defense counsel attempted to clarify

Jackson’s definition. The following exchange took place:

[Defense Counsel]: How clear would you want to be?

[Jackson]: Clear enough to say I feel good about it.

[Defense Counsel]: And if it’s more likely than not, is that enough for you?

Or would you want “I want to be really sure. I want to be sure beyond a reasonable doubt”?

[Jackson]: I want to be sure.

[Defense Counsel]: And sure, in your mind, does that also fit into your definition of beyond a reasonable doubt? However you view it. We can’t define it for you.

91 [Jackson]: Maybe, beyond a reasonable doubt is preponderance or different. But the same kind of - -

[Defense Counsel]: I’m sorry?

[Jackson]: I said, they’re kind of the same. I want to be clear either way.

(RR15:93-94). Defense counsel tried to understand whether Jackson’s

need to be “clear” was equivalent to a preponderance of the evidence or

beyond a reasonable doubt. (RR15:93-98). Jackson would not be pinned

down except to say that she would “want to be sure.” (RR15:95). There

is no evidence to suggest that Jackson would increase the burden on the

defense on this issue. Indeed, she testified that she “would want to

understand and be sure, based on whatever the criteria is.” (RR15:97)

(emphasis added).

discretion in denying his challenge for cause against Jackson. Issue 10

Issue 11: David Darden

Appellant challenged Darden for the following reasons: (1) the

responses in his questionnaire show that Darden had already formed

the opinion that the appropriate punishment in this type of case was

92 the death penalty; and, (2) he believed that if a person was guilty of

capital murder, that person will always be a future danger. (RR16:72-

73).

After questioning, the defense challenged Darden for cause based

on his responses to two questions on his questionnaire: Question 8 and

Question 11. (Darden, Juror 186, Q.p.3). Question 8 asks jurors “For

what crimes do you think the death penalty is the proper

punishment?” (Darden, Juror 186, Q p.3) (emphasis in original).

Darden wrote, “murder in the commission of crimes.” (Darden, Juror

186, Q p.3). Darden’s response does not reflect a bias against the law

or Appellant. To the contrary, Darden’s response was consistent with

the law. The law provides that the death penalty is available for

intentional murder committed in the course of committing or

attempting to commit certain specified offenses. See Tex. Penal Code

Ann. § 19.03(a)(2) (West Supp. 2015) (capital murder includes

intentional murder “in the course of committing or attempting to

commit kidnapping, burglary, robbery, aggravated sexual assault,

arson, obstruction or retaliation, or terroristic threat”).

93 Question 11 asks jurors whether they agree with the statement

that “‘The death penalty is reserved for those defendants that are such

a threat to society that even incarceration does not remove the

possibility of future violent acts.’” (Darden, Juror 186, Q p.3). Darden

wrote that he agreed with the statement and that “if his/her crimes are

that bad, death is appropriate in my mind.” (Darden, Juror 186, Q p.3).

As above, this response does not reflect a bias against the law or

Appellant and, in fact, was consistent with the law. In a death penalty

case, if the defendant is found guilty, jurors are asked to decide

“whether there is a probability that the defendant would commit

criminal acts of violence that would constitute a continuing threat to

society[.]” Tex. Code Crim. Proc. Ann. art. 37.0711, §3(b)(2) (West

Supp. 2015). Although the wording is slightly different, the statement

in Question 11 is essentially asking jurors whether they agree with the

law. Darden’s response indicated an agreement with – not bias against

– the law.

Future Dangerousness

Appellant also challenged Darden for cause because when he was

asked for “his personal views” regarding the future danger special issue,

94 Darden “indicated . . . once he’s been convinced that the person is guilty

of capital murder . . . and he was convinced that the person would be a

future danger, that he could never answer Special Issue Number Three

in a way that would result in a life sentence.” (RR16:73). This basis

for challenge is not completely clear. If a juror were to find, as counsel’s

challenge suggests, that a person is a “future danger,” then, following

his oath, the juror would answer the future danger special issue in the

affirmative. See Tex. Code Crim. Proc. Ann. art 37.0711(e) (West Supp.

2015). If a juror were to find that a person is a “future danger,” then,

following his oath, the juror would not answer the future danger special

issue in the negative, which would then result in a life sentence.

During the Defense’s voir dire, counsel asked multiple questions

about Darden’s feelings about voting for a convicted capital murderer to

receive a life sentence. (RR16:63-67). At no point, however, did he

explain the law and then ask whether Darden could set aside his

feelings and follow the law. See generally Threadgill, 146 S.W.3d at 667

(explaining that, before a prospective juror can be excused for bias, the

law must be explained to him and he must be asked whether he can

95 To the extent that any of Darden’s responses during the defense

voir dire may be interpreted as contradicting his responses during the

State’s voir dire, this Court should defer to the trial court’s resolution of

his responses. See Feldman, 71 S.W.3d at 744. The reviewing court

must give great deference to the trial court’s decision on a challenge for

cause based on the trial judge’s opportunity to observe the venire

member during voir dire. Id. When the record reflects that a prospective

juror vacillated or equivocated on his ability to follow the law, the

reviewing court must defer to the trial judge. Gardner, 306 S.W.3d at

295.

discretion in denying his challenge for cause against Darden. Issue 11

Issue 12: Delores Sawyer

Appellant challenged Sawyer for cause because, on two occasions,

she testified that in deciding the mitigation special issue, she would

take Appellant’s facial expressions into account. (RR19:224-25).

During the State’s voir dire, in response to a line of questioning

96 regarding her ability to find that a person would not be a future danger,

[Sawyer]: Because, once again, I haven’t heard all the facts. I believe, if a person shows remorse or some sign of rehabilitation, there’s a possibility that that may not occur in future situations.

[Prosecutor]: Okay. Tell me what you mean by “remorse”. [sic]

[Sawyer]: What I do, I pay a lot [of] attention to their demeanor, the body language, if they appear to be somewhat hostile or somewhat combative. You don’t have to be verbal, as far as being combative or hostile. You can look at a person’s body language, his or her eye contact. I’m very good be [sic] reading someone.

I guess, it comes from my law enforcement training in the past. Because, a lot of times in-law enforcement, you cannot survive if you are not aware of a potential act or an attack within the law enforcement environment. Not only do you have to work in a law enforcement environment, it can happen on your job. We see this everyday.

What just recently happened in Fort Hood. No one came to work that day and think [sic] that they’re going to have an adverse situation to deal with. So it just depends on a lot of variables and factors. But the individual - - I don’t know the history. It just kind of depends on what I find out about that person. It doesn’t have to be verbal. Body language, like I said. Showing some sign of remorse.

97 (RR19:179-80). During the defense’s voir dire, counsel questioned

Sawyer as follows:

[Defense Counsel]: Let me just ask you this: Do you feel like that you would need to hear from the Defendant, to find out if he had remorse for something, in a hypothetical case?

Would you need to hear how that person felt about it, before you could consider a life sentence?

[Sawyer]: No. Like I said, the facts would have already been presented. Like I said earlier, I would watch the Defendant’s body language. He doesn’t have to say anything. You can tell a lot about a person, whether or not he is feeling remorse, by his body language. If you’re in a court of law and the Defendant (demonstrating). [sic] If you’re in a court of law and the Defendant is, like, just so distraught by what has occurred - -

[Defense Counsel]: Okay. All right. So you can read ‘em, kind of.

[Sawyer]: Yes.

[Defense Counsel]: Have you been able to read the Defendant in this courtroom today?

[Sawyer]: Well, when I came in here, I was focusing over here. I saw him. Now, I’m looking at him now. He seems calm and - - I don’t want to use - - well, tranquil means the same as calm. But he seems just calm. Not agitated, not - - he doesn’t appear hostile to me.

98 [Defense Counsel]: Okay. So have you formed any opinions about his character, in just observing him in court?

[Sawyer]: No, I have not. Once I hear the facts, I may. But, at this point, no.

[Defense Counsel]: Okay. And how he reacts to whatever he hears in court.

(RR19:218-20). The prosecutor objected that the defense was “inviting

the juror to consider any facts and circumstances that would be outside

of the record.” (RR19:220). The objection was sustained. (RR19:220).

A defendant’s non-testimonial demeanor is not evidence subject to

reference by the State or the defense. See Good v. State, 723 S.W.2d

734, 736 (Tex. Crim. App. 1986)(discussing comment on defendant’s

demeanor by the State). It follows that jurors should not consider the

defendant’s non-testimonial demeanor. See Tex. Code Crim. Proc. Ann.

art. 38.08 (West 2005) (prohibiting any comment on the right of an

accused to remain silent or his failure to testify).

In this case, defense counsel never explained to Sawyer that if she

were selected as a juror, she would not be allowed to consider

Appellant’s non-testimonial demeanor. She never asked whether

99 Sawyer could set aside her desire to consider Appellant’s demeanor and

consider only the evidence properly presented. See Threadgill, 146

S.W.3d at 667.

On appeal, Appellant also challenges Sawyer because, in her

questionnaire, she indicated support for the death penalty; she thought

the death penalty was seldom used; and she agreed with a statement

that jurors should do what they believe is right, even if it is contrary to

the law. (Appellant’s Br. p.59). These complaints are not preserved for

review because they were not raised at trial. See Tex. R. App. P. 33.1(a)

(providing that a timely specific trial objection is prerequisite to

presenting a complaint on appellate review).

discretion in denying his challenge for cause against Sawyer. Issue 12

Issue 13: Jonathan Henderson

Appellant challenged Henderson for cause because: (1) once he

found a person to be a future danger, the mitigation issue “would really

not be much to him”; and (2) he was evasive. (RR20:201-02).

100 Future Dangerousness/Mitigation

Appellant challenged Henderson on the basis that he would

automatically assess the death penalty if he found that the murder was

committed deliberately and if the defendant was not intellectually

disabled and was a future danger. During the State’s voir dire, however,

Henderson testified that he was “[a]bsolutely” open to hearing evidence

in mitigation. (RR20:157). He affirmed that he would keep an open

mind and consider all evidence when deciding the mitigation special

issue. (RR20:163-64). He confirmed his understanding that there are

no “automatic answers.” (RR20:164).

During the defense’s voir dire, the following exchange took place:

[Defense Counsel]: Right. In a hypothetical situation, what are your feelings about the person not receiving the death penalty but receive [sic] a life sentence instead?

Do you have any feelings, either way?

[Henderson]: Yes, I do.

[Defense Counsel]: Tell me. What are they?

[Henderson]: With the hypothetical situation of a man or woman or a person, I should say, committing that type of a crime, it’s almost like an eye for an eye. If they can do it, then they ought to be able to receive it.

101 ...

[Defense Counsel]: “You take a life, we take your life.”

What do you think about that?

[Henderson]: That’s when I say the facts have to be in line. Because taking a life for a life, and all the facts are the same, leading to that point, then it should be.

[Defense Counsel]: Then this should be the death penalty instead of life?

Is that what you’re saying?

[Henderson]: Yes.

(RR20:174-76). Henderson did not testify that he would not consider

evidence in mitigation or that he would automatically answer the

special issues in a way that the death penalty would result. He

testified that “the facts have to be in line.” (RR20:175).

Defense counsel later returned to the subject and asked for

Henderson’s thoughts about a life sentence if the capital murder was

committed deliberately by a defendant who is not intellectually disabled

and is a future danger. (RR20:191). Henderson said that “[his] answer

right now would be no life sentence.” (RR20:191). At this point in

102 questioning, however, counsel did not remind Henderson that he would

still have to consider the mitigation special issue; he asked only for his

feelings up to the future danger special issue. See Threadgill, 146

S.W.3d at 667. In any event, when counsel suggested that Henderson

would not “need to go on anymore[,]” Henderson’s answer changed.

(RR20:193). Henderson testified that “that’s where that two-fold

question comes in again.” (RR20:193). He testified that “[w]ith [his]

open mind, [he] would still want to go on.” (RR20:193). He later

testified that “of course [he] would” be open to answering the mitigation

special issue in a way that a life sentence would result. (RR20:195-96).

Evasive

Appellant also challenged Henderson on the basis that he was

evasive during the defense voir dire. A thorough review of the

transcript shows that Henderson was not evasive. Rather, he was

simply finding it difficult to answer some of counsel’s questions with

just a yes or no answer. The following exchange took place:

[Defense Counsel]: No, I know. Because I’m asking you about your feelings.

[Henderson]: And I’m telling you. And I want you to understand that my feelings still ride with, I want to go

103 through the process before I make a decision. But you’re wanting to know, if I had all of these things and all of that came about, then would I say “yes” or “no” to this. That’s an answer. And I don’t want to answer. But I’ve got to give you something. And that answer is what you want to hear right now, is an answer. So I’m giving you an answer, but I’m not answering you, according to how I feel. If that makes any sense.

(RR20:193-94). A reviewing court should give particular deference

when the veniremember’s answers unclear or contradictory. See

Gonzales v. State, 353 S.W.3d 826, 831 (Tex. Crim. App. 2011).

discretion in denying his challenge for cause against Henderson. Issue

13 should be overruled.

Issue 14: Isaac Tschewik

Appellant challenged Tschewik for cause on the basis that he

would place a burden on the defense in connection with the mitigation

special issue. (RR26:340). The following exchange took place during

the defense voir dire:

[Defense Counsel]: . . . “For me to be able to say that person should receive a life sentence instead of a death sentence, you’re going to have to prove to me mitigation. I’m going to place that burden on you to show me that I should not give him the death penalty.”

104 What do you think?

[Tschewik]: I think that’s exactly where I am.

[Defense Counsel]: Okay. . . . The law says you can’t place a burden on us.

Are you telling me that you would place the burden on the Defense to convince you that he shouldn’t receive the death penalty, after you’ve been convinced that he’s a future danger?

[Tschewik]: Well, I haven’t thought of it that way. I don’t know that I’m placing a burden on the Defense. I’m just trying to keep an open mind. I’m just saying that, you know, it would be difficult to find something in my own mind that will mitigate the circumstances.

If I heard it and I believed it then, yes, I could do that. I could certainly accept life punishment.

[Defense Counsel]: Okay. You say you may not place a burden. But would you want us - - would you require the Defense to provide you that evidence?

[Tschewik]: Well, I don’t know where else it’s going to come from.

(RR26:335-36). Tschewik was not challengeable for cause on the basis

of this exchange. Because there is no law which places the burden of

proof on the State regarding the mitigation issue, a veniremember is 105 not challengeable for cause simply because he would place the burden of

proof on this issue on the defense. Ladd v. State, 3 S.W.3d 547, 559

(Tex. Crim. App. 1999) (citing Barnes v. State, 876 S.W.2d 316, 329-330

(Tex. Crim. App. 1994).

discretion in denying his challenge for cause against Tschewik. Issue 14

Issue 15: Michael Dawson

Appellant challenged Dawson for cause on the basis that (1) he

believes in the principle of an eye for an eye; (2) he believes intentional

murder deserves the death penalty; and, (3) he has reservations about

an individual with intellectual disability receiving a life sentence

because that person knows the difference between right and wrong.

Eye for an Eye

Appellant challenged Dawson for cause “based on his

questionnaire which, over and over again, he would tell us under oath

that he believed in the principle of an eye for an eye[.]” (RR27:153).

On Question #1, which asked whether he was in favor of the death

penalty, Dawson wrote that he “believe[s] in the principle of an eye for

106 an eye.” (Dawson, Juror 469, Q p.1). On Question #18, he agreed that

he believes in the principle of an eye for an eye and referenced his

answer to Question #1. (Dawson, Juror 469, Q p.8). Dawson’s

answers to these questions do not demonstrate a clear bias against the

law. The State notes that in response to Question #5, Dawson agreed

that a life sentence would be appropriate in the proper circumstances.

(Dawson, Juror 469, Q p.3). During questioning, he agreed on multiple

occasions that a life sentence may be the appropriate punishment in the

proper case. (RR27:110, 114, 131, 144-45). And, on multiple occasions

he agreed that he could listen to the evidence and follow the law.

(RR27: 96, 101-02, 105, 119-21). He testified that “If I’m chosen as a

juror, I have to abide by the law.” (RR27:137).

Intentional Murder

Next, Appellant challenged Dawson based on his belief that “once

you committed a murder that’s intentional, the death penalty is really

the only option.” (RR27:153). Appellant cited four responses on

Dawson’s questionnaire wherein he indicated that intentional murder

warrants the death penalty. (RR27:153; Dawson, Juror 469, Q pp.2, 3,

4). During questioning, Dawson acknowledged that in response to

107 Question 2 on his questionnaire he wrote that the death penalty is

appropriate in all murder cases. He also testified, however, that this

was just “an answer to a question. But there’s definitely circumstances,

that all of those things should be weighed.” (RR27:127-28). He

testified that he did not “have an issue” with a life sentence for an

intentional murder. (RR27:131). He agreed that a life sentence could

be the proper punishment for intentional murder. (RR27:131).

Right from Wrong

Appellant challenged Dawson because he expressed reservation

about an individual with intellectual disability not being eligible for the

death penalty if the individual knows right from wrong. (RR27:153).

During questioning, Dawson initially testified that he understood that

an individual with intellectual disability is not eligible to receive the

death penalty. (RR27:132). He stated, “You don’t want to pass

judgment on someone who committed a crime that was not in their full

capacity, making judgments.” (RR27:132-33). When asked for his

thoughts about an individual with intellectual disability not being

eligible for the death penalty even though that person knows right from

wrong, Dawson testified:

108 It’s definitely an interesting dilemma, in that you’re saying someone does meet that criteria and knows right from wrong. I would say that’s more rare than not. But I guess, in that circumstance, you know, it’s kind of - - I don’t know. Almost a gray area. You have to weigh what you’re given and make a decision, I guess.

(RR27:134). Dawson agreed with defense counsel’s proposition that

his “belief system” tells him that even if a person is intellectually

disabled, that person should face the death penalty if that person knows

right from wrong. (RR27:136). Nevertheless, he testified that if he was

chosen as a juror, he would abide by the law. (RR27:137).

Additionally, later in voir dire, Dawson disagreed that he would

increase the burden on intellectual disability special issue in an effort to

ensure the death penalty. (RR27:141-42). The following exchange took

[Defense Counsel]: Some people will say, “Do you know what? Because of the way I value life, I’m not going to let this person avoid the death penalty unless I’m positive that they’re mentally I [sic] retarded.

“They killed somebody. They knew right from wrong, and they did it intentionally.”

109 [Dawson]: I think that’s a little too harsh. This questionnaire is very direct and black and white. You know, what you’re proposing, there’s things to be considered. There are gray areas. There are definitely circumstances. That’s why we do this process. I’m definitely open-minded, and I can hear that and decide.

[Defense Counsel]: I have no doubt that you will keep an open mind and listen to the evidence. But what I’m asking you is this: There’s some people that say, “Do you know what? For me to say this person is mentally retarded and just let them avoid the death penalty when I know they committed an intentional murder of another human being while committing a felony, I’m going to have to be really convinced that they’re mentally retarded.

“If not, I may be letting some guy off from getting the death penalty, who I believe deserves it.”

[Dawson]: It’s about what the law requires. That’s what I have to follow. That’s what I have to base my opinion on. It’s not whether or not I think he’s really mentally retarded or not. It’s based on what the law says.

(RR27:141-42).

A review of Dawson’s voir dire shows no bias as a matter of law.

Indeed, as previously stated, Dawson agreed on multiple occasions that

he could listen to the evidence and follow the law. (RR27:96, 101-02,

105, 119-21).

110 Questionnaire

On appeal, Appellant lists a number of other responses Dawson

wrote in his questionnaire that he claims made Dawson challengeable

for cause. (Appellant’s Brief p.64). These arguments were not

presented to the trial court and therefore are not preserved. See Tex. R.

App. P. 33.1(a).

discretion in denying his challenge for cause against Dawson. Issue 15

Issue 16: Angela Thorpe-Harris

Appellant challenged Thorpe-Harris for cause on the basis of her

testimony that she would place a burden on the defense in connection

with the deliberateness special issue. (RR28:129).

Burden of Proof

During the voir dire, defense counsel asked Thorpe-Harris for her

thoughts about a life sentence for an individual who committed the

offense deliberately and was not intellectually disabled. (RR28:120).

[Thorpe-Harris]: If they did it deliberately?

111 [Defense Counsel]: Uh-huh.

[Thorpe-Harris]: I could consider it. But I know personally it would take a little bit of proving.

[Defense Counsel]: Who would have to prove what, for a life sentence?

[Thorpe-Harris]: You (indicating). Your side. You have to convince me.

...

[Defense Counsel]: Okay. The law says, you can’t place that burden on me. But, honestly, you’d do that, correct?

[Thorpe-Harris]: Right.

[Defense Counsel]: And there’s nothing wrong with saying that. Like I said, that’s why we ask these questions. I’m sure you didn’t get up today saying to yourself “I know everything about capital murder law and I know exactly how I would act.” But you know yourself.

[Thorpe-Harris]: I know the burden is supposed to be on the State’s side for that question. But I’m also going to be keying in on what you’re saying, too.

[Defense Counsel]: You would still place a burden on us to show you that it wasn’t deliberate. Because it’s kind of an important decision that you have to make, right?

[Thorpe-Harris]: Yes.

112 [Defense Counsel]: That’s really how you feel?

[Defense Counsel]: So if the Judge were to ask you, “Hey, Ms. Thorpe-Harris, you understand that you can’t place a burden on the Defense,” you would, correct?

[Thorpe-Harris]: Yeah. I’m going to listen to you. Yeah.

(RR28:120-22).

After the defense asserted its challenge against Thorpe-Harris,

she was returned to the courtroom for the judge to clarify her

testimony. (RR28:130). The judge confirmed Thorpe-Harris’

understanding that the State – and not the Defense – has the burden of

proof on the deliberateness special issue. (RR28:130-31). The following

exchange then took place:

[Trial Court]: Okay. Would you require that the Defense prove to you that the act was not deliberately?

Or would you follow the law and just - - if the State proved to you beyond a reasonable doubt that it was deliberate, could you make your decision based on that?

Or if the State failed to prove to you that it was deliberate, then could you make your decision based on that?

113 [Thorpe-Harris]: Yeah, I could. I could do it, based on whatever the State decides.

[Defense Counsel]: Your Honor, I think she also told us that she would place a burden on us to prove - - somewhat of a burden on us to prove that it wasn’t deliberate. I would ask you to inquire - - first of all ask, if she did say that to us on the record.

[Trial Court]: Do you recall saying that?

[Thorpe-Harris]: Yeah. Because I’m just sort of assuming that the Defense is going to be speaking to it - - I assume - - during the phase. So I’m going to be listening to what they say, too. But I know the burden of proof, from what they’ve told me, is on the State.

[Trial Court]: You understand that the burden of proof is solely upon the State?

(RR28:32).

The totality of Thorpe-Harris’s testimony shows that she would

not place a burden on the defense in connection with the deliberateness

special issue. Rather, she “just sort of assum[ed] that the Defense is

going to be speaking to” that issue and she would listen to their

evidence. (RR28:132). To the extent that Thorpe-Harris was

114 equivocating on her ability to follow the law, the reviewing court must

defer to the trial judge. Gardner, 306 S.W.3d at 295.

Claims on Appeal

On appeal, Appellant challenges Thorpe-Harris because she would

require severe intellectual disability to assess a life sentence and

because she did not trust expert testimony. He also cites a number of

the responses she gave on her questionnaire. (Appellant’s Brief p. 66-

67). These complaints are not preserved for review because they were

not raised at trial. See Tex. R. App. P. 33.1(a) (providing that a timely

specific trial objection is prerequisite to presenting a complaint on

appellate review).

discretion in denying his challenge for cause against Thorpe-Harris.

Issue 16 should be overruled.

Issue 17: Christopher Weinzapfel

Appellant challenged Weinzapfel for cause because: (1) he was

familiar with the case; (2) he was evasive in answering questions; and

(3) he invoked the Fifth Amendment. (RR32:89).

115 Familiarity with Case

Weinzapfel was in high school when the instant offense occurred.

(RR32:14-15). He did not recall all of the details of the case, but he did

remember that it “was the headlined story” and “that there was mental

health that was in question and whether or not they were going to seek

the death penalty[.]” (RR32:50, 51). At the time, in school, the issue

“from a generic standpoint” was used as a source of discussion and

debate. (RR32:51). “We argued both sides of that [issue].” (RR32:51).

Although he knew the details of this case when he was in school, he

could not presently recall them “off the top of [his] head.” (RR32:87).

Weinzapfel was not challengeable for cause simply because he had

some knowledge of the facts of the case. Qualified jurors need not be

totally ignorant of the facts and issues involved in the case. See

Murphy v. Florida, 421 U.S. 794, 799-800 (1975). Even if this Court

assumes that Weinzapfel had some limited knowledge of the case, he

nevertheless denied having a pre-formed opinion regarding the case.

(RR32:51-52). Indeed, he stated, “I have to be honest with you, I don’t

remember which side it went. I’ve had too much other stuff on my plate

116 to think too much about it.” (RR32:52). There is nothing in the record

to show that Weinzapfel was biased against Appellant.

Appellant challenged Weinzapfel on the basis of his being

“evasive” during questioning. At one point during questioning, defense

counsel began a series of questions asking Weinzapfel for his thoughts

about a life sentence if the offense was determined to be deliberate, and

then if the person is found to be a future danger. (RR32:79-81).

Weinzapfel testified that he was “stuck in the thought process.”

(RR32:81). He was having difficulty answering counsel’s questions

without having the evidence. (RR32:81). Counsel took the questioning a

step further and asked whether the circumstances of the defendant’s

childhood or disabilities would be relevant. (RR32:82). Weinzapfel

responded:

Again, that’s why I’m hoping that it’s not a matter of what I think but it’s a matter of what I see and what evidence is presented. And then - - I’m not trying to evade that answer. I don’t know. It’s a pretty serious answer, to just be halfhearted about.

117 (RR32:82). A review of the record shows that Weinzapfel was not trying

to be evasive; he was simply finding it difficult to thoughtfully answer

counsel’s questions without knowing the evidence. (RR32:82).

Fifth Amendment

Appellant also challenged Weinzapfel because he invoked the

Fifth Amendment. (RR32:62, 64). A review of the record shows that

Weinzapfel asked to “take the Fifth” on two occasions, but he did so, not

in the traditional sense. (RR32:62, 64). The first time Weinzapfel

asked to take the Fifth, he and defense counsel were discussing

Weinzapfel’s ability to concentrate on the evidence given the fact that

he is the sole provider in his family and would be missing two weeks of

work if he were seated as a juror. (RR32:60-62). The following

exchange took place:

[Defense Counsel]: So, tell me: Would it be such a concern that it would be hard for to [sic] you concentrate on the evidence?

[Weinzapfel]: Can I take the Fifth? I have to be honest with you, I work in a profession where I go to work everyday. I deal with life and death. The things that are happening, I can’t take with me. So I wouldn’t be very honest with you, if I said it would sway me. I have to make those decisions, regardless. It is a financial burden. It’s

118 going to cost my family - - cost me the ability. But, hey, like I said before, that’s part of it.

(RR32:62).

The second time Weinzapfel asked to take the Fifth he and

defense counsel were discussing Weinzapfel’s connection with the Darlie

Routier capital murder case. (RR32:64). Weinzapfel is a firefighter

and paramedic. (RR32:17). His colleagues, including his best friend,

were “the primary medics on the case.” (RR32:64). His testimony is

not completely clear, but it appears that Weinzapfel helped “prep” his

colleagues for trial. (RR32:64). Defense counsel asked what

Weinzapfel thought “about all that?” (RR32:64). Weinzapfel testified:

Again, I take the Fifth on that. I’d rather not give an opinion. It’s one of those things to sit back and watch the drama unfold. Knowing what was known and the fact [sic] as they were, with all the details and everything else, it’s a little different than watching it on the news.

(RR32:64).

The fact that Weinzapfel continued to respond to questioning

despite his requests to “take the Fifth,” proves that he was not truly

attempting to invoke the Fifth Amendment. Indeed, he continued to

respond to questioning for an additional 24 pages. (RR32:64-88). This

119 refutes trial counsel’s claim that Weinzapfel “would just not answer the

question purported [sic] to him.” (RR32:89). It appears that Weinzapfel

used his request to “take the Fifth” in an effort to try to bring

questioning on a particular topic to a close.

Darlie Routier

On appeal, Appellant also challenges Weinzapfel on the basis of

his involvement in the Routier case. He fails to state, however, how

this renders him challengeable. Regardless, this complaint was not

preserved for review because it was not raised at trial. See Tex. R. App.

P. 33.1(a). In any event, Weinzapfel testified that he was not involved

in investigating the Routier case. (RR32:63-64). As stated above,

Weinzapfel was apparently involved in helping his colleagues prepare to

testify for trial. (RR32:64). He testified that his “directions were very

specific . . . to make sure those guys were articulate and comfortable

and knew exactly what they were needing to know, as far as from the

medical side of it.” (RR32:64).

discretion in denying his challenge for cause against Weinzapfel. Issue

17 should be overruled.

120 Issue 18: Phillip Rapp

Appellant challenged Rapp for cause for the following reasons: (1)

in his questionnaire he indicated strong feelings in favor of the death

penalty; and (2) he did not understand the questions asked during voir

dire.

Death-Prone

Appellant challenged Rapp because he “indicated in his

questionnaire he has strong feelings for the death penalty,” which

Appellant contended demonstrated a bias against a life sentence.

(RR42:70). Counsel’s challenge is overly general and fails to

specifically describe why he believes Rapp is biased.23 Regardless, the

record reflects that Rapp would have to hear “[e]verything in the facts”

before he could make a decision regarding punishment. (RR42:42-43).

He denied that he was the type of person that would automatically vote

to assess the death penalty. (RR42:65). During questioning by the

defense, Rapp testified that he “would be open to what is presented.

But, [he] still feel[s] more strongly to the death penalty as oppose [sic]

23 On appeal, Appellant cites a number of responses in Rapp’s questionnaire which he contends demonstrate Rapp’s bias. (Appellant’s Brief pp.69-70). When trial counsel made his challenge in the trial court, he did not specify the responses that formed the basis for his challenge. As such, it is the State’s position that he has failed to properly preserve this claim for appellate review. 121 to a life sentence.” (RR42:67-68). A juror may express strong feelings

for imposing a death sentence, but “if he also unequivocally states that

he could set aside those feelings and follow the trial court’s instructions

on the law and would base his verdict or his answers to the special

issues on the evidence adduced,” he is not disqualified as a matter of

law. See Cordova v. State, 733 S.W.2d 175, 184 (Tex. Crim. App. 1987).

Thus, the trial court properly denied Appellant’s challenge on this basis.

Confusion

Appellant also challenged Rapp because “he might not understand

exactly the questions that were proposed to him and may have a

misunderstanding as to how the scheme works.” (RR42:70). During

the State’s voir dire, Rapp affirmed that he understood the process.

(RR42:45, 49, 50, 54, 57). During questioning by the defense, however,

Rapp got confused by counsel’s questions. Defense counsel asked

whether Rapp could answer the intellectual disability special issue in

the affirmative, if proven by the evidence. (RR42:65-66). Initially,

Rapp said no. (RR42:66). When counsel rephrased his question to be

sure that Rapp understood his question, Rapp apologized and testified

that his answer was yes, he could answer the intellectual disability

122 issue in the affirmative. (RR42:67). Later in the exchange, counsel

asked whether Rapp could “answer it ‘no[.]’” (RR42:68). Rapp

answered that he could not. (RR42:68). Counsel again attempted to

clarify his question. (RR42:68). Rapp asked whether counsel was

asking if he could answer the intellectual disability question no.

(RR42:68). He then testified that he could answer the intellectual

disability special issue in the negative. (RR42:68).

Appellant complains that Rapp was confused, yet the questions

Rapp was being asked were, in fact, confusing. At times, it was unclear

what special issue counsel was asking Rapp to respond to. Once the

questions were clarified, Rapp was able to respond appropriately.

There is nothing in the record to show that Rapp misunderstood the

process to be followed in this case.

discretion in denying his challenge for cause against Rapp. Issue 18

Issue 19: Nancy Ramos

Appellant challenged Ramos for cause because she ranked herself

as a “1” on Question 2 of her questionnaire, indicating a belief that “the

123 death penalty is appropriate in all murder cases.” (Ramos, Juror 1025,

Q p.2). Other responses on her questionnaire, however, demonstrate

that Ramos’ beliefs regarding the death penalty are not quite as rigid as

her self-ranking would make it seem.

For example, even though Ramos ranked herself as a 1, she

answered “yes” to Question 5, which asked whether she agreed “that a

life sentence, rather than the death penalty, would be appropriate

under the proper circumstances[.]” (Ramos, Juror 1025, Q p.2). In

response to Question 15, she ranked herself a 5 out of 10 on a scale of

how strongly she holds her belief in the use of the death penalty.

(Ramos, Juror 1025, Q p.3). In response to Question 36C, she indicated

that she was “uncertain” about whether the death penalty should be

abolished. (Ramos, Juror 1025, Q p.7). In response to Question 41,

Ramos ranked herself a 2 out of 10 on a scale of her attitude toward

punishment in the criminal justice system. (Ramos, Juror 1025, Q p.8).

During voir dire, Ramos affirmed that if selected as a juror, she could

listen and answer the special issues based on the evidence presented.

(RR44:10, 12, 14, 16, 17, 18).

124 Claims on Appeal

On appeal, in addition to Ramos’ self-ranking, Appellant cites a

number of other responses Ramos gave in her questionnaire.

(Appellant’s Brief p.71). He contends that these responses show Ramos’

bias. During voir dire, however, Appellant did not question Ramos

about these responses and he did not mention them during his

challenge for cause. As such, these complaints are not preserved for

review. See Tex. R. App. P. 33.1(a).

discretion in denying his challenge for cause against Ramos. Issue 19

Issue 20: Jay Kirby

Appellant challenged Kirby for cause because (1) he indicated in

his questionnaire that the death penalty is appropriate in all murder

cases; and, (2) he declined to name his friend who is a police officer.

Appellant challenged Kirby “based on his answers on the

questionnaire; that he believes the death penalty is appropriate in all

murder cases.” (RR45:68). Kirby ranked himself as a “1” on Question 2

125 of his questionnaire, indicating a belief that “the death penalty is

appropriate in all murder cases.” (Kirby, Juror 1052, Q p.1). On

Question 5, he answered “no” to a question asking if he agreed that a

life sentence may be appropriate under the proper circumstances.

(Kirby, Juror 1052, Q p.2). He wrote that “[i]f found guilty of murder

with intent the death penalty should be used.” Id. On Question 9,

Kirby wrote that he did not think that “life should be considered in a

murder case.” (Kirby, Juror 1052, Q p.2).

While many of Kirby’s responses demonstrate that he is strongly

in favor of the death penalty, they also demonstrate a willingness to

follow the law. For example, on Question 47, in response to a question

asking whether he agreed or disagreed with the following statement,

“Regardless of what the Judge says the law is, Jurors should do what

they believe is the right thing to do, even if it goes against the law[,]”

Kirby wrote, “Disagree. If the Judge asked me to disregard I will.”

(Kirby, Juror 1052, Q p.9). When questioned by the State about his

ability to “keep an open mind to this process and base [his] answers on

the evidence,” Kirby testified that he “[could] keep an open mind.”

(RR45:56). He agreed that he could keep an open mind to the process

126 involved in this case. (RR45:56-57). He testified that although he did

not agree that a defendant does not have to testify, he would follow the

law. (RR45:59). During questioning by the defense, the following

[Defense Counsel]: Some jurors come in and tell us, “You know what? I thought we would just hear evidence and we just check a box, life or death.”

But now that you understand how this works, are you telling us that you could answer each special issue “yes” or “no” just depending on what you’re convinced of from the evidence?

[Kirby]: Yes, I can.

[Defense Counsel]: Even if that leads to a life sentence, you can do that?

[Kirby]: I believe I can.

[Defense Counsel]: Because you can see how we would be a little concerned, based on your questionnaire. But now you’re telling us here in court, under oath, that you can do that?

[Kirby]: Yeah, I believe I can.

(RR45:66-67). Based on the foregoing, it is clear that Kirby was not

disqualified as a matter of law. See Cordova, 733 S.W.2d at 184.

127 Police Officer Friend

Appellant also challenged Kirby for cause because Kirby declined

to provide the name of his friend who is a Dallas police officer.

(RR45:68). During questioning by the defense, counsel inquired about

the fact that, in his questionnaire, Kirby wrote that he has friends who

are police officers. (RR45:65). Kirby testified that has “a friend” who

works out of the Northwest Police Department. (RR45:65). When

asked for his name, Kirby responded that he “would prefer not to, if

that’s okay.” (RR45:65). Defense counsel did not press Kirby to provide

the friend’s name, but asked whether he knew if the friend was involved

in the investigation of Appellant’s case. (RR45:65). Kirby testified that

he knows the friend “socially” and that he did not know whether he was

involved. (RR45:65). Without more information, Appellant’s challenge

fails as there is no evidence that Kirby’s friendship with a police officer

makes him disqualified as a matter of law. In any event, when asked

whether he could set aside his relationship with that friend and listen

to the evidence and make a decision based on what he hears in court,

Kirby testified, “Sure, I could. Yeah.” (RR45:66).

128 Appellant has failed to show that the trial court abused its

discretion in denying his challenge for cause against Kirby. Issue 20

Issue 21: Nathan Sosa

Appellant challenged Sosa for cause because (1) his responses on

his questionnaire; and, (2) he would only consider a life sentence in

limited circumstances. (RR46:32).

Appellant challenged Sosa for cause “based on his answers in the

questionnaire.” (RR46:32). Appellant did not identify the responses in

the 22-page questionnaire that he contends render him challengeable

for cause. As such, this complaint is not preserved for review. See Tex.

R. App. P. 33.1(a).

Closure

Appellant also challenged Sosa for cause because “he’s limited

himself - - as to when he can consider a life sentence.” (RR46:32). On

Question 9 of his questionnaire, in response to the question, “For what

crimes do you think a sentence of life imprisonment is the proper

punishment[,]” Sosa wrote, “Someone who gives information so as to

129 give closure to love [sic] ones.” (Sosa, Juror 1070, Q p.3). During

questioning, defense counsel inquired regarding this response.

(RR46:27-28). Sosa explained that his answer simply represented an

example of a case in which he would agree that a life sentence was

proper: if someone committed murder and hid the victims’ bodies, he

should get a life sentence if he discloses the location of the bodies so

that the family has “closure.” (RR46:28). Importantly, Sosa did not

testify that his example represented the only situation in which a life

sentence would be appropriate. Quite to the contrary, he testified that

he could keep an open mind. The following exchange took place:

[Defense Counsel]: But now that you have heard the way it works here, can you see there might be other circumstances --

[Sosa]: Oh, yeah.

[Defense Counsel]: - - that might lead someone to vote for a life sentence?

Is that what you’re telling us here today; that you can keep an open mind to that?

[Sosa]: Like I say, you don’t know what people been through. You can’t just judge one action by being simple about it. You know, everything comes to a climax. Like I said, I’m always open-minded. I don’t judge people. I don’t 130 have no preconceptions of people. I try not to let that get in my way, because I don’t want to have any preconceived notions about myself. So I try to be fair to everybody, of all walks of life, throughout my life.

As far as, you know, you show me the evidence, I’ll use my own free mind, my own free will, and I’ll make my own decision.

(RR46:29). The foregoing proves that Sosa was not limited in his

ability to consider a life sentence.

discretion in denying his challenge for cause against Sosa. Issue 21

Issue 22: James Martin

Appellant challenged Martin for cause because (1) his responses

on his questionnaire; and, (2) he is biased as a result of the fact that his

grandson was killed.

Appellant challenged Martin “just based on his questionnaire.”

(RR50:45). Appellant did not identify the responses in the 22-page

questionnaire that he contends render him challengeable for cause. As

131 such, this complaint is not preserved for review. See Tex. R. App. P.

33.1(a).

Martin’s Grandson

Appellant also challenged Martin “based on the fact that his

grandson was killed.” (RR50:45). Appellant asserted that Martin’s

grandson’s death would affect his ability to be a fair juror in Appellant’s

case. (RR50:45).

On Question 67 of his questionnaire, in response to a question

asking whether he knew anyone who was killed accidentally or

otherwise, Martin wrote that “[his] grandson was shot a [sic] killed by a

stray bullit [sic].” (Martin, Juror 1190, Q p.11). Martin testified that

his grandson’s case occurred in 2005.24 (RR50:43). His grandson’s case

was prosecuted by the Dallas County District Attorney’s Office, but it

would not cause him to be unfair in Appellant’s case. (RR50:38).

Indeed, Martin denied that there was anything about his grandson’s

case that would keep him from being able to listen in Appellant’s case.

(RR50:37-38). During the defense voir dire, Martin promised that his

It is not clear whether the offense against Martin’s grandson occurred in 2005 or 24

whether the perpetrator’s trial occurred in 2005. (RR50:43). 132 grandson’s case would not affect his ability to be a fair juror in

Appellant’s case. (RR50:43).

The record supports the trial court’s ruling. Martin’s voir dire

does not show a bias against Appellant or the law. The record shows

that he is in favor of the death penalty, but he testified that he would be

comfortable with assessing a life sentence in the proper circumstances.

(RR50:39, 41).

On appeal, Appellant cites a number of other responses Martin

gave in his questionnaire, which he contends show his bias.

(Appellant’s Brief p.76). Appellant did not cite these responses during

his challenge for cause. As such, these complaints are not preserved for

discretion in denying his challenge for cause against Martin. Issue 22

Issue 23: Jennifer Wilder

Appellant challenged Wilder for cause because (1) she would

increase the burden on the defense regarding the intellectual disability

133 special issue; (2) she would lower the burden on the State regarding the

future danger special issue; and, (3) she would impose a burden on the

defense regarding the mitigation special issue.

Intellectual Disability

Appellant challenged Wilder for cause because she would hold the

defense “to a burden of beyond a reasonable doubt on Special Issue

Number One.” (RR52:85-86). During the State’s voir dire, the

prosecutor explained that with regard to the intellectual disability

special issue, the burden of proof is on the defense to prove it by a

preponderance of the evidence. (RR52:26-33). Wilder affirmed that she

could abide by the law with regard to this special issue. (RR52:29). She

denied that she would automatically answer the intellectual disability

special issue in the negative simply because the offense at issue is

capital murder. (RR52:33).

When questioned by the defense, Wilder gave a response that

suggested that she would increase the burden of proof:

[Defense Counsel]: You know, sometimes people have told us also . . . I want to be really sure they’re mentally retarded. I don’t want to be sure, just more likely than not. I want to be the most sure I can be, under the law.

134 “I want to be sure beyond a reasonable doubt. I don’t want to have any doubt, for me to just say this person shouldn’t receive the death penalty because they’re mentally retarded. I want to be convinced more than just a preponderance. I have to be convinced beyond a reasonable doubt.

“We’re holding the State to beyond-a-reasonable-doubt standard. I want to hold the Defense to that burden also.”

What do you think?

[Wilder]: Yes. You’ve got to be fair. I notice you have mentally retarded first, instead of last. It seems like everybody do [sic] a crime, and then they want to say that they are mentally retarded. You can even fool a doctor that you’re mentally retarded. You just got to prove it beyond, as you say, a reasonable doubt. And then you can see some features in a mentally-challenged person also.

(RR52:64-65). It appears from this exchange that Wilder may have

been confused and thought that beyond a reasonable doubt was the

appropriate burden on this special issue. Later in the exchange,

defense counsel returned to the subject and explained that the burden

on the defense is a preponderance of the evidence. (RR52:66-67).

Wilder affirmed that she would be okay with the defense proving the

intellectual disability special issue by a preponderance of the evidence.

(RR52:68).

135 To the extent that Wilder provided contradictory responses, the

appellate court should defer to the trial judge. When the record reflects

that a venire member vacillated or equivocated on her ability to follow

the law, the reviewing court must defer to the trial judge. Gardner, 306

S.W.3d at 295.

Future Danger

Appellant challenged Wilder because she would only require the

State to prove “just a mere chance or a possibility” that Appellant would

be a future danger. (RR52:86). During voir dire, the prosecutor

explained that the burden on the future danger special issue is on the

State. (RR52:40-41). The State must prove that there is a probability –

more than a possibility, but less than a certainty – that Appellant

would be a future danger. (RR52:44-46). Wilder agreed that she would

be open to either possible answer and testified that “[a]nybody can be

rehabilitated.” (RR52:46).

When questioned by the defense, Wilder again agreed that the

State would have to prove a probability. (RR52:74). Then, however, as

the exchange continued, she gave a response that was equivocal. The

following exchange took place:

136 [Defense Counsel]: So if the law says that you have to hold the State to prove more than a mere chance and they have to prove to you a probability, which is more, would you agree?

[Wilder]: Yes.

[Defense Counsel]: Could you follow that?

Or would a mere chance be enough for you?

Because, if that’s the way you feel, you can tell us. You can say, “I can follow the law and say a probability is what I would hold them to.” You tell me.

What would make you more comfortable?

[Wilder]: A mere chance. I think both sides would be a chance. Proving it beyond a reasonable doubt and thinking that this person is going to rehabilitate, even if they ever get out of prison. I could go either way. You’ve got to prove it. But then, nothing is 100 percent proven.

(RR52:74).

To the extent that any of Wilder’s responses may be interpreted as

contradictory, this Court should defer to the trial court’s resolution of

her responses. See Feldman, 71 S.W.3d at 744. The reviewing court

must give great deference to the trial court’s decision on a challenge for

cause based on the trial judge’s opportunity to observe the venire

137 member during voir dire. Id. When the record reflects that a prospective

juror vacillated or equivocated on her ability to follow the law, the

reviewing court must defer to the trial judge. Gardner, 306 S.W.3d at

Mitigation

Appellant challenged Wilder because she would place a burden on

the defense regarding the mitigation special issue. (RR52:86). At no

point, however, did Wilder ever say that she would place a burden on

the defense on this issue. Importantly, neither side instructed Wilder

that there is no burden as it relates to this issue. See generally

Threadgill, 146 S.W.3d at 667.

Defense counsel asked Wilder about the fact that some people

would only answer the mitigation special issue in the affirmative if “the

Defense proves it to [them].” (RR52:75). Wilder responded as follows:

You got the Defense over here, then you have the person that’s defending the Defendant. You would want your government to really bring everything that they would have in order to prove the Defendant - - if they should receive life or death. It’s just looking at the evidence.

(RR52:76). Wilder’s response suggests that she would consider the

evidence presented, not that she would impose the burden of proof on

138 the defense. (RR52:76). Even if her response can be interpreted as

imposing a burden on the defense, which the State does not concede,

this Court has stated that a veniremember is not challengeable for

cause simply because he would place the burden of proof on the defense

regarding mitigation. Saldano, 232 S.W.3d at 92 (citing Ladd, 3

S.W.3d at 559).

On appeal, Appellant cites a number of other responses Wilder

gave in her questionnaire, which he contends show her bias.

(Appellant’s Brief p.78). Appellant did not mention these responses

during his challenge for cause. As such, these complaints are not

preserved for review. See Tex. R. App. P. 33.1(a).

discretion in denying his challenge for cause against Wilder. Issue 23

Appellant has not shown even one erroneous ruling on his

challenges for cause, much less three erroneous rulings. See Gonzales,

353 S.W.3d at 837. Therefore, he has not shown this Court that he was

139 denied the use of a statutorily provided peremptory strike. Issues 9

through 23 should be overruled.

STATE’S RESPONSE TO ISSUE NOS. 24-30: THE TRIAL COURT DID NOT ERR IN GRANTING THE STATE’S CHALLENGES FOR CAUSE.

In Issues 24 through 30, Appellant contends that the trial court

erred in granting the State’s challenges for cause against

veniremembers Sheryly Kingery, Kimberly Morris, Consuelo Davila,

Gloria Hawkins, Jenna Kinzie, Raul Flores, and Kellye Hogan. He

contends the exclusion of these jurors violated article 35.16 of the Texas

Code of Criminal Procedure. Appellant’s contentions lack merit and

Article 35.16(b) of the Texas Code of Criminal Procedure provides

as follows:

A challenge for cause may be made by the State for any of the following reasons:

1. That the juror has conscientious scruples in regard to the infliction of the punishment of death for crime, in a capital case, where the State is seeking the death penalty.

2. That he is related within the third degree of consanguinity or affinity as determined under

140 Chapter 573, Government Code, to the defendant; and

3. That he has a bias or prejudice against any phase of the law upon which the State is entitled to rely for conviction or punishment.

Tex. Code Crim. Proc. Ann. art. 35.16(b) (West 2006). 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.

On appeal, a reviewing court will overturn the trial court's ruling

on a challenge for cause only if it clearly abused its discretion. Gonzales,

353 S.W.3d at 831. The reviewing court gives great deference to the

trial court’s decision on a challenge for cause because the trial judge

was in the best position to observe the venire member during voir dire.

Id. When the record reflects that a venire member vacillated or

equivocated on her ability to follow the law, the reviewing court must

defer to the trial judge. Id.

Issue 24: Sheryl Kingery

On her questionnaire, in response to Question 2, Kingery ranked 141 herself a “5,” indicating a belief that she “could never, under any

circumstances, return a verdict which assessed the death penalty.”

(RR13:22; Kingery, Juror 32, Q p.1). Kingery wrote that she could not

be a part of taking someone’s life. (Kingery, Juror 32, Q p.1). She

made statements in multiple other places, which made her beliefs

regarding the death penalty clear: she has moral, religious, or personal

beliefs that would prevent her from returning a verdict which would

result in the execution of another human being (Kingery, Juror 32, p.3);

“(death sentence) provides no purpose” (Kingery, Juror 32, p.3); “I do

not believe in the death penalty” (Kingery, Juror 32, p.4); “I simply do

not believe in the death penalty” (Kingery, Juror 32, p.4); “[the death

penalty] just never made any sense to me. It seems contradictory.

Murder is a crime but putting someone to death is not” (Kingery, Juror

32, p.5); “I want to be sure to make it clear my stance against the death

penalty and it would be an influence on my thoughts” (Kingery, Juror

32, p.20).

During voir dire by the State, when asked if she was saying, “I

can’t be part of [this process], because of my beliefs[,]” Kingery testified

that the prosecutor was correct. (RR13:23). Kingery testified that if

142 she were a juror, she “would have to answer [the special issues]

truthfully[,]” but later, she conceded the possibility that she would be

looking for a way to answer the questions in such a way that the death

penalty would not result. (RR13:25). Serving as a juror in this case

would do harm to her conscience. (RR13:25-26). Kingery repeatedly

affirmed that she does not believe in the death penalty and believes

that it should be abolished. (RR13:28-29).

When questioned by the defense, Kingery testified that if she were

selected as a juror, she would show up. (RR13:44). She intimated,

however, that her participation would be less than honest. The

[Defense Counsel]: If you’re selected as a juror, would you just refuse to participate at all in the process?

[Kingery]: No, I would not refuse to participate. But I know how I would participate.

[Defense Counsel]: Okay. That’s what we’re going to talk about.

Would you do it honestly?

I mean, you’ve indicated, when they were asking you questions, that you would participate honestly in the process.

143 [Kingery]: As honestly as I can. I know I have this strong belief.

(RR13:44). Later, counsel asked Kingery whether she could honestly

answer “no” to the mitigation special issue if she did not find any

mitigating evidence. (RR13:55). Kingery testified that “it would kill

[her].” (RR13:55). As the exchange continued, however, she gave

answers that suggested that her participation would be less than

completely honest:

[Defense Counsel]: But would you be honest and do it?

[Kingery]: I would have to. Because, one way or the other, my conscience is going to - -

[Defense Counsel]: So you would have to answer it honestly.

[Kingery]: Yes.

[Defense Counsel]: Even if your answer’s “no” you would be honest and answer “no” that there’s no mitigation, right?

Even if it would be hard - - extremely hard - - for you, you could do it?

[Kingery]: Put in that situation, can I absolutely, honestly answer that today?

144 [Defense Counsel]: No. We don’t know what you’re going to hear.

[Kingery]: I would hope I would do it. But I still can’t say, when it came down to that wire. I can only hope that I will do it.

(RR13:55-56). Kingery then contradicted herself and testified that she

“[could] answer the questions honestly.” (RR13:57).

A veniremember may not be excused for her general opposition to

the death penalty. Witherspoon v. Illinois, 391 U.S. 510, 522-23 (1968);

Rachal v. State, 917 S.W.2d 799, 810 (Tex. Crim. App. 1996). A

veniremember is challengeable for cause, however, if his beliefs

against capital punishment would prevent or substantially impair the

performance of his duties as a juror in accordance with the court's

instructions and the juror's oath. See Colburn, 966 S.W.2d at 517. A

juror must be able to set aside her personal preferences and biases to

consider as death eligible all those defined as death eligible by section

19.03 of the penal code and article 37.071 of the criminal procedure

code. Rachal, 917 S.W.2d at 812.

The totality of Kingery’s voir dire testimony shows that her beliefs

about capital punishment would prevent or substantially impair the

145 performance of her duties as a juror as required by law. She had a bias

against the law governing a defendant’s eligibility for the death penalty.

As a result of her bias, Kingery could not ensure the parties that she

would follow the law and answer the special issues honestly. See Clark

v. State, 929 S.W.2d 5, 8-9 (Tex. Crim. App. 1996) (a prospective juror

who maintains she will consciously distort her answers must be excused

on challenge for cause). At a minimum, Kingery vacillated. Where the

venire member either vacillates or equivocates on her ability to follow

the law, the Court should defer to the trial court’s judgment on the

challenge for cause. Granados v. State, 85 S.W.3d 217, 231 (Tex. Crim.

App. 2002).

The record supports the trial court’s decision to grant the State’s

challenge. To conclude otherwise would controvert this Court’s policy of

encouraging trial court’s to liberally grant challenges for cause rather

than err by denying a challenge on a close question. Jones v. State, 982

S.W.2d 386, 394 (Tex. Crim. App. 1998).

Issue 24 should be overruled.

Issue 25: Kimberly Morris

At the beginning of the State’s voir dire, Morris testified that

146 although she believes in the death penalty, she was concerned about

being the person “to say that that should happen to someone[.]”

(RR13:213). Indeed, she testified that she could not take the oath

because of her beliefs about the death penalty. (RR13:218-19). The

[Prosecutor]: Your moral beliefs, they’re yours . . . What I’m hearing you say, when you tell me it might be hard to return a verdict that would result in the execution of somebody else, tells me that you might have some moral dilemma with actually being on a jury that actually imposed a verdict that resulted in the execution of somebody else.

[Morris]: Yes.

[Prosecutor]: Is that how you feel?

[Morris]: That’s how I feel.

[Prosecutor]: Okay. What I’m saying is that you would have to take an oath to follow the law, even if the law conflicted with your own moral standard.

Some jurors have told me, “I can’t take that oath, because I don’t want to be in a position of making a determination that, while in line with the law, is not in line with my own morals.”

Does that make sense?

147 [Morris]: Yes.

[Prosecutor]: Some people have a moral opposition to imposing the death penalty, by their verdict. Okay? And what I’m hearing you tell me is that you could not take that oath.

Is that right?

[Morris]: Correct.

[Prosecutor]: You couldn’t assure me that you would take the oath and follow it all the way through because of your moral dilemmas with the death penalty, correct?

(RR13:217-19). Later, the prosecutor returned to the subject and

Morris maintained her position, stating, “No. I couldn’t assure you that

[she would take the oath to follow the law].” (RR13:239).

During voir dire by the defense, however, Morris contradicted

herself. She testified that she would answer all of the special issues

honestly. (RR13:249-50, 254-55, 259). She testified that she would take

the oath if she had to. (RR13:260). In an effort to clarify Morris’

position, the trial judge inquired of her as follows:

[Trial Court]: . . . Now, one side, you’re saying, no, you can’t. The other side, you’re saying, yes, you can.

148 I need to know “yes” or “no” can you take the oath?

[Morris]: No.

(RR13:264).

Given Morris’ repeated statements that she could not take the

oath, the trial court properly granted the State’s challenge for cause. A

veniremember is challengeable for cause if she states that her

convictions are so strong that she cannot take an oath, knowing that a

death sentence is a possible result at trial. See Goodwin v. State, 799

S.W.2d 719, 731-32 (Tex. Crim. App. 1990). The record supports the

trial court’s decision to grant the State’s challenge. See King v. State,

29 S.W.3d 556, 568 (Tex. Crim. App. 2000). To conclude otherwise

would controvert this Court’s policy as stated earlier. Jones, 982

S.W.2d at 394.

Issue 25 should be overruled.

Issue 26: Consuelo Davila

On Question 2 of her questionnaire, Davila ranked herself a “5,”

indicating a belief that she “could never, under any circumstances,

return a verdict which assessed the death penalty.” (Davila, Juror 103,

149 Q p.1). She wrote in 3 places that she did not think that she could “send

someone to [the] death penalty.” (Davila, Juror 103, Q pp.3, 4, 20).

She also answered “yes” to Questions 3 and 4, which ask whether

the juror has any moral, religious or personal beliefs that would prevent

them from sitting in judgment of another human being or would

prevent them from returning a verdict that would result in the

execution of another human being. (Davila, Juror 103, Q p.3).

During questioning by the State, Davila affirmed the answers on

her questionnaire. (RR14:133-36). She agreed that her beliefs

regarding the death penalty would affect her ability to answer the

special issues. (RR14:154). The following exchange took place:

[Prosecutor]: Okay. So your views then on the death penalty will impact how you consider whether somebody is mentally retarded or not; is that right?

[Davila]: Yes.

[Prosecutor]: Okay. In other words, you would change or consider Special Issue Number One really not in the context of whether the person suffers from mental retardation, but whether you want him to get the death penalty or not; is that right?

150 (RR14:154). The prosecutor asked Davila whether her feelings would

affect her answer to the deliberateness special issue, “knowing that if

you answer it ‘yes’ you’re moving closer toward that verdict of death?”

(RR14:159). Davila responded, “I think it would. But I still can’t send

no one to death penalty.” (RR14:159). Her views would affect her

answers to the future danger and the mitigation special issues as well.

(RR14:159-60, 167). Because of her moral beliefs, she is unable to be a

part of the process involved in this case. (RR14:169). When Davila was

questioned by the defense, she appeared to contradict herself because

she agreed that she could answer the special issues. (RR14:178-87). At

the end of questioning, however, she testified that she could not take

the oath to serve as a juror. (RR14:187-88). The following exchange

took place:

[Defense Counsel]: . . . So now that you know how it works, do you think you could take the oath to serve as a juror and be part of the process, as long as all you’re asked to do is answer the questions honestly and base your answers on the evidence?

Do you think you could do that?

[Davila]: Honestly, no.

(RR14:187-88). 151 Given Davila’s testimony that her beliefs would affect her answers

to the special issues and that she could not take the oath, the trial court

properly granted the State’s challenge for cause. See Goodwin, 799

S.W.2d at 731-32. The record supports the trial court’s decision to grant

the State’s challenge. See King, 29 S.W.3d at 568. To conclude

otherwise would controvert this Court’s policy as stated earlier. Jones,

982 S.W.2d at 394.

Issue 26 should be overruled.

Issue 27: Gloria Hawkins

In response to Question 1 on her questionnaire, Hawkins wrote

that she is not in favor of the death penalty. (Hawkins, Juror 176, Q

p.1). During questioning by the State, Hawkins affirmed the statements

in her questionnaire that she does not believe in the death penalty.

(RR15:216). She testified, “No, I wouldn’t be part of a process where

someone is executed. I will not be.” (RR15:215). Importantly, Hawkins

refused to provide any assurance that if she were selected as a juror

that she would take the oath and follow the law. (RR15:219-21). The

following exchange occurred:

[Hawkins]: I said, I’m against the death penalty. Yes, that’s what I wrote. That’s what I mean.

152 [Prosecutor]: Can you take the oath to follow the law and render a true verdict?

[Hawkins]: What do you think?

[Prosecutor]: I think you can. What do you think?

[Hawkins]: I’m not gone [sic] give the death penalty.

[Prosecutor]: Because of how you feel, you’re not going to give the death penalty?

[Hawkins]: And may not even want to give a life penalty. But go ahead.

[Prosecutor]: And even if you [heard the evidence], you couldn’t impose the death penalty in any case.

Is that what you’re telling me?

[Hawkins]: If I heard witnesses. No, I will not impose the death penalty. That is too final. And people change.

[Prosecutor]: Are you able to give me your assurance right now that you can take the oath to follow the law and render a true verdict, based on the law and the evidence?

[Hawkins]: That I could follow the law?

153 [Prosecutor]: And render - -

[Hawkins]: I’m not a part of that. I don’t have to follow that. No, I don’t have to follow that. I’m not a part of your law.

(RR15:219-21). In contrast, when she was questioned by the defense,

Hawkins testified that she could answer the special issues honestly.

(RR15:227-28). She testified that she could follow the law. (RR15:230-

31, 234-35, 239).

The totality of Hawkins’ voir dire testimony shows that her beliefs

about capital punishment would prevent or substantially impair the

performance of her duties as a juror as required by law. To the extent,

if any, that some of her other remarks could be interpreted as

contradictory, the trial court was the fact finder during voir dire and,

thus, free to resolve her conflicting answers in the State’s favor. See

King, 29 S.W.3d at 568 (particular deference is given to the trial court’s

conclusion that venire member cannot follow law when venire member’s

answers are vacillating, unclear, or contradictory). To conclude

otherwise would controvert this Court’s policy as stated earlier. Jones,

154 Judgment

On Question 4 of her questionnaire, Hawkins answered “yes” to a

question asking whether she has “any moral, religious or personal

beliefs that would prevent [her] from returning a verdict which would

result in the execution of another human being.” (Hawkins, Juror 176,

Q p.2). During voir dire, she testified, “I don’t believe I have a right to,

you know, judge anybody, to say that they should die for what they did.”

(RR15:184). The totality of Hawkins’ voir dire shows she could not sit

in judgment of another individual and her statements support the trial

court’s decision.

Guilt

When Hawkins was told that the Judge would instruct her that

Appellant has already been found guilty, Hawkins testified, “Well, I

didn’t see the trial. It’s hearsay to me.” (RR15:190). The prosecutor

explained that another jury already found Appellant guilty.

(RR15:190). Hawkins testified that she would “have to see it for

[her]self[.]” (RR15:190). As above, Hawkins’ testimony shows that she

was unable (or unwilling) to follow the law. The record supports the

trial court’s decision.

155 Fifth Amendment

On Question 36A of her questionnaire, Hawkins wrote that she

agreed with the statement, “Even though the law says a Defendant has

the right to remain silent, a person accused of capital murder should

testify.” (Hawkins, Juror 176, Q p.7). During voir dire, the prosecutor

explained that jurors are not allowed to consider the fact that a

defendant does or does not testify in his own defense as evidence of

guilt. (RR15:195). Hawkins testified that she “[doesn’t] follow that

law.” (RR15:195). In contrast, she later contradicted herself when she

testified that she would follow an instruction not to consider whether

the defendant elects to testify as evidence of guilt. (RR15:196). To the

extent that Hawkins was a vacillating juror, the record supports the

trial court’s decision. See King, 29 S.W.3d at 568.

Hawkins testified that she could not find a person to be a future

danger unless she talks to that person or if that person testifies and she

hears what that person has to say. (RR15:209). She could not answer

the future danger special issue unless the defendant testifies.

(RR15:210). Even so, “[y]ou can’t tell a person’s heart. You don’t know

156 what he’s going to do or what he’s not going to do in the future. You

can’t do it. You can only predict.” (RR15:211). As a result, she could

never answer the future danger special issue. (RR15:211, 212). She

I can’t do that. Because I can’t look at a person’s heart and tell what they’re going to do. I can’t do that. And you can’t either.

(RR15:211-12). In contrast, she later contradicted herself when she

testified that she could answer the the future danger special issue “yes.”

(RR15:235-36). To the extent that Hawkins was a vacillating juror, the

record supports the trial court’s decision. See King, 29 S.W.3d at 568.

The record supports the trial court’s decision to grant the State’s

challenge. To conclude otherwise would controvert this Court’s policy

as stated earlier. Jones, 982 S.W.2d at 394.

Issue 27 should be overruled.

Issue 28: Jenna Kinzie

On Question 1 of her questionnaire, Kinzie wrote that she is “not

sure what [she] think[s] about the death penalty but [she does] not

think it should be [her] decision whether someone lives or dies.”

(Kinzie, Juror 243, Q p.2). She ranked herself a “3” on Question 2,

157 indicating a belief that, “Although I do not believe that the death

penalty should ever be imposed, as long as the law provides for it, I

could assess it under the proper set of circumstances.” (Kinzie, Juror

243, Q p.2). During the State’s voir dire, she described herself as

“teeter-tottery” about the subject. (RR17:114). When the prosecutor

asked if taking the oath would violate her conscience, Kinzie said it

would. (RR17:125). Kinzie testified that she thought that she could

take the oath; however, her views on the death penalty would affect her

answers to the special issues. (RR17:128-29). During questioning by

the defense, however, Kinzie agreed that she could take the oath and

render a verdict based on the law and evidence. (RR17:139, 142, 158).

After she was questioned by both sides, the trial court brought

Kinzie back into the courtroom and asked whether she could “take the

oath or not[.]” Kinzie testified that she could not. (RR17:170-71). To

the extent that Kinzie was a vacillating juror, the record supports the

On Question 36A of her questionnaire, Kinzie wrote that she

agreed with the statement, “Even though the law says a Defendant has

158 the right to remain silent, a person accused of capital murder should

testify.” (Kinzie, Juror 243, Q p.7). During the State’s voir dire, she

testified that she would prefer that a capital murder defendant testify.

(RR17:133). She was unsure whether she would require the defendant’s

testimony. (RR17:133). She would consider it, however, in deciding

the special issues. (RR17:135). When questioned by the defense,

Kinzie agreed that she would not consider the defendant’s failure to

testify. (RR17:157). To the extent that Kinzie was a vacillating juror,

the record supports the trial court’s decision. See King, 29 S.W.3d at

568.

Police Officers

One of Kinzie’s brothers is a police officer. (RR17:129, 154). As a

result, even though the law says that police officers are to be judged as

any other witness, Kinzie would find them to be more credible.

(RR17:130-31). She later contradicted herself and agreed that she

would wait and listen to their testimony before judging their credibility.

(RR17:155-56).

The totality of Kinzie’s voir dire testimony clearly shows her

beliefs about capital punishment and sitting in judgment of another

159 person would prevent or substantially impair her ability to carry out

her obligations as a juror. And, she vacillated on multiple issues.

Indeed, Kinzie was the classic vacillating juror; she gave different

answers depending on who was questioning her. Where the venire

member either vacillates or equivocates on his ability to follow the law,

the Court should defer to the trial court’s judgment on the challenge for

cause. Granados, 85 S.W.3d at 231. The record supports the trial

court’s decision to grant the State’s challenge. To conclude otherwise

would controvert this Court’s policy as stated earlier. Jones, 982

Issue 28 should be overruled.

Issue 29: Raul Flores

On his questionnaire, Flores wrote that he is not in favor of the

death penalty and described it as “barbaric.” (Flores, Juror 244, Q p.2,

p.5). On Question 4, he answered “yes” to a question asking whether

he has “any moral, religious or personal beliefs that would prevent

[him] from returning a verdict which would result in the execution of

another human being.” (Flores, Juror 244, Q p.3). He wrote that he

was “very unsure that [he] could send a person to their death.” (Flores,

160 Juror 244, Q p.3). On Question 19, Flores answered “no,” that the

death penalty is not applied fairly in Texas. (Flores, Juror 244, Q p.4).

On Question 22, Flores wrote that the death penalty is used too often

and that “it’s used as a political tool to gain votes from people thirsty for

punishment, rather than what benefits society.” (Flores, Juror 244, Q

p.4). He answered “agree” to Question 36C, which asked whether the

death penalty should be abolished. (Flores, Juror 244, Q p.7).

During questioning by the State, Flores’ testimony revealed

considerable distrust in the prosecution. The following exchange took

[Flores]: Everybody has their agenda. Everybody wants something. It just seems that with the prosecutor, lately, I’ve been hearing about wins and losses. And that’s all that matters. This morning, I heard about a receipt was [sic] withheld, evidence was withheld, and the guy went to prison for 25 years.

[Prosecutor]: Yep.

[Flores]: That happened, because a prosecutor wanted to win. I’m suppose to believe what you tell me - -

[Prosecutor]: Actually, you don’t have to.

[Flores]: Well, I’m not too succinct [sic] right now.

161 ...

[Flores]: So you just told me that, okay, we’re here because this happened and this happened and this happened. And I’m supposed to believe you?

[Prosecutor]: In one sense, yes. In another sense, you don’t have to necessarily agree with it.

Does that make sense to you?

[Flores]: You’re telling me these things, and we’re going to proceed onward, as if I believe you. And that’s - -

[Prosecutor]: That’s a problem for you?

[Flores]: (Venireperson nods.)

[Prosecutor]: That’s all right. I can tell.

(RR18:21-23). The prosecutor asked Flores whether his personal

experiences and “things that [he has] read about” meant that the State

was “already behind in this case.” (RR18:39). Flores responded that

“That’s accurate.” (RR18:39).

Flores openly admitted that he is biased. He testified, “I’m very

biased.” (RR18:33). He testified that his “biases will factor into how

[he] act[s].” (RR18:34). At one point, Flores testified that he thought

that he could look at evidence objectively. (RR18:40). But then he

162 returned to his initial stance. The following exchange took place:

[Prosecutor]: . . . In other words, you could not be a part of this process that would result in the execution because of how you feel; is that right? “Yes” or “no”?

[Flores]: No, I couldn’t.

[Prosecutor]: Okay. All right.

[Flores]: I’d be fine disregarding the instructions, you know.

[Prosecutor]: You would be fine disregarding the instructions?

[Flores]: If the alternative is sending someone to die.

(RR18:40-41).

Later, when he was questioned by the defense, Flores equivocated

regarding his ability to serve as a juror and answer the special issues

based on the law and evidence. (RR18:66-67). Counsel tried to pin

Flores down, but Flores testified that the best answer he was able to

give was “I don’t know.”

The totality of Flores’ voir dire testimony clearly shows that his

beliefs about capital punishment and his clear bias against the State

would prevent or substantially impair his ability to carry out his oath

and follow instructions in accordance with the law. Threadgill, 146 163 S.W.3d at 667. Flores was equivocal about his ability to take the oath.

Even if he did take the oath, however, by his testimony, he would “be

fine disregarding [the court’s] instructions[.]” (RR18:41). The record

supports the trial court’s decision.

Issue 29 should be overruled.

Issue 30: Kellye Hogan

In her questionnaire, Hogan wrote that she is in favor of the death

penalty in the appropriate case, but she is “hesitant to make a decision

for someone else’s fate.” (Hogan, Juror 1110, Q p.2, 20). During voir

dire, after hearing the prosecutor summarize the process involved,

Hogan testified that she did not feel like she could be a part of the

process. (RR47:69). She testified, “I don’t feel like I can handle making

that type of decision, based on an individual.” (RR47:69). Hogan

acknowledged that her testimony differed from the answers in her

questionnaire; she said that she has “had time to think about it[.]”

(RR47:70). Initially, Hogan agreed that the death penalty “would be

playing on [her] mind” as she answered the special issues. (RR47:74).

But then she testified that if she were a juror that she “would obviously

tell the truth” and that her views on the death penalty would not affect

164 her answers to the special issues. (RR47:75-76). Where the venire

member either vacillates or equivocates on her ability to follow the law,

the Court should defer to the trial court’s judgment on the challenge for

cause. Granados, 85 S.W.3d at 231. The record supports the trial

court’s decision to grant the State’s challenge. To conclude otherwise

would controvert this Court’s policy as stated earlier. Jones, 982

Hogan also testified that she would hold the State to a higher

burden of proof than beyond a reasonable doubt. (RR47:99). The

prosecutor explained that although the beyond-a-reasonable-doubt

standard is the highest burden in the criminal justice system, it “does

not mean with 100 percent certainty or beyond all possible doubt.”

(RR47:99). When asked if she would hold the State to its burden of

beyond a reasonable doubt or whether she would hold it to a higher

burden, Hogan testified that “it would have to be a higher burden than

reasonable doubt - - beyond a reasonable doubt.” (RR47:99). The

prosecutor explained that the law only requires the State to prove

something beyond a reasonable doubt but Hogan maintained that she

165 would hold the State to a higher burden. (RR47:100-01). The following

[Prosecutor]: The law is, you would be instructed that I’m only suppose to prove it beyond a reasonable doubt, if I can prove it at all. Even if you were convinced beyond a reasonable doubt about something, about Special Issue Number Two, Special Issue Number Three, you would still hold me to that higher burden, because of your thoughts on capital murder; is that correct?

[Hogan]: That’s correct.

[Prosecutor]: You would hold me to beyond all possible doubt?

[Hogan]: Yes.

(RR47:101). When she was questioned by the defense, Hogan appeared

to change her answer. (RR47:112-14). She agreed that she would not

hold the State to an impossible burden, but would hold the State to its

burden of beyond a reasonable doubt. (RR47:114). In an attempt to

clear up the confusion, the trial court inquired of Hogan regarding the

burden of proof:

[Trial Court]: . . . All right. I’m confused now, Ms. Hogan. And I want you to tell me. Because, when Mr. Birmingham was talking to you . . . you told him that you would hold him to a higher burden of proof. Mr. Sanchez has been over this

166 with you.

You understand, the law is beyond a reasonable doubt? That’s the burden of proof that the State has to prove. Beyond a reasonable doubt can mean anything to you. We don’t have a legal definition of it. It means whatever it means to you, each juror. But that is the burden of proof. It’s not beyond all doubt. It’s not beyond a shadow of a doubt. It’s not beyond - - it’s not 100 percent. It’s not to a certainty. It’s beyond a reasonable doubt.

Now, would you hold the State to that burden?

Or would you hold them to a higher burden?

Just be real truthful and honest with us.

[Hogan]: Okay. Well, that’s what I thought I answered, was it would be a higher - - it would be a higher burden.

[Trial Court]: A higher burden than beyond a reasonable doubt?

(RR47:115). A review of Hogan’s testimony shows that she has a bias

against the law regarding the State’s burden of proof. Her bias would

prevent or substantially impair her ability to carry out her oath and

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

At a minimum, Hogan was a vacillating juror. See generally Ladd, 3

167 S.W.3d at 559. The record supports the trial court’s decision.

Issue 30 should be overruled.

The trial court did not abuse its discretion in granting the State’s

challenges for cause regarding Kingery, Morris, Davila, Hawkins,

Kinzie, Flores, and Hogan. Even assuming their excusal was erroneous,

it was harmless. The erroneous excusal of a venireperson warrants

reversal only if the record shows that the error deprived the defendant

of a lawfully constituted jury. Jones, 982 S.W.2d at 394. Appellant

makes no such showing. Moreover, no evidence indicates that the

jurors who served on Appellant’s jury were in any way biased,

interested, or otherwise disqualified from serving. As a result, reversal

is unwarranted.

Issues 24 through 30 should be overruled.

STATE’S RESPONSE TO ISSUE 31: THE SUPREME COURT’S DECISION IN HALL V. FLORIDA DID NOT INVALIDATE THIS COURT’S DECISION IN EX PARTE BRISENO.

Appellant contends that the recent Supreme Court decision in

Hall v. Florida, 134 S. Ct. 1986 (2014) invalidates and renders

unconstitutional this Court’s decision in Ex parte Briseno, 135 S.W.3d 1

168 (Tex. Crim. App. 2004). Appellant’s contention lack merit.

Pertinent Facts

On June 3, 2014, Appellant filed a motion to quash the jury panel

based on the United States Supreme Court opinion in Hall. (CR:23-24).

Defense counsel argued that under Hall, it is unconstitutional to

instruct the potential jurors that an IQ of “70 or below” as “it’s actually

a moving scale now, depending on the evidence from an expert.”

(RR47:7). Counsel argued that “by application and by statutory

statement through the Brisenio [sic] case, we feel that there’s an

unconstitutionality there.” (RR47:7). The trial court overruled

Appellant’s objection to the State being permitted to instruct the

potential jurors that the first prong of the test for intellectual disability

requires an IQ of 70 or below. (RR47:11-12).

On June 13, 2014, the trial court conducted a second hearing on

Appellant’s motion. At that time, Appellant argued that “Briseno no

longer applies” after Hall. (RR53:15). The defense maintained its June

3rd argument that the jury had been improperly questioned on the

matter during voir dire. (RR53:16-17). The trial court denied

Appellant’s motion to quash the panel. (RR56:4).

169 Applicable Law

Atkins

In Atkins v. Virginia, 536 U.S. 304, 321 (2002), the United States

Supreme Court held that the execution of intellectually disabled

defendants violates the Eighth Amendment. A fundamental premise of

Atkins is that the clinical definition of intellectual disability takes into

account “that IQ scores represent a range, not a fixed number[.]” Hall,

134 S. Ct. at 1999. “And those clinical definitions have long included

the [standard error or measurement “SEM”.]” Id.

Briseno

For the purposes of an Atkins claim, this Court has defined

intellectual disability in accordance with the criteria adopted by the

American Association on Mental Retardation (AAMR) and the Texas

Health and Safety Code as (1) significant sub-average general

intellectual functioning, usually evidenced by an intelligence quotient

(IQ) score below 70, that is accompanied by, (2) related limitations in

adaptive functioning, (3) the onset of which occurs prior to the age of 18.

See Briseno, 135 S.W.3d at 7-8; see also Tex. Health & Safety Code Ann.

§ 591.003(7-a) (West Supp. 2015). The Briseno Court defined

170 significantly subaverage intellectual functioning as an IQ of about 70 or

below (approximately two standard deviations below the mean). Id. at 7

n.24; see also Williams v. State, 270 S.W.3d 112, 113-14 (Tex. Crim.

App. 2008) (noting this Court’s adoption of the AAMR definition of

intellectual disability, which is defined, in part, as “an IQ ‘of about 70’

or below”)) (citing Briseno, 135 S.W.3d at 7 n.24). Regarding adaptive

functioning, this Court recognized that the determination may be

difficult as the criteria “are exceedingly subjective” and articulated

seven factors that a fact-finder may consider when resolving that prong:

 Did those who knew the person best during the developmental stage – his family, friends, teachers, employers, authorities – think he was mentally retarded at that time, and, if so, act in accordance with that determination?

 Has the person formulated plans and carried them through or is his conduct impulsive?

 Does his conduct show leadership or does it show that he is led around by others?

 Is his conduct in response to external stimuli rational and appropriate, regardless of whether it is socially unacceptable?

 Does he respond coherently, rationally, and on point to oral or written questions or do his responses wander from subject to subject?

171  Can the person hide facts or lie effectively in his own or others’ interests?

 Putting aside any heinousness or gruesomeness surrounding the capital offense, did the commission of that offense require forethought, planning, and complex execution of purpose?

Id. at 8-9.

Hall v. Florida

In Hall, the United States Supreme Court held that Florida’s

interpretation of its intellectual disability statute was unconstitutional.

134 S. Ct. at 2000. Freddie Hall filed a motion claiming that he was

intellectually disabled and could not be executed. Id. at 1991-92. He

presented in IQ score of 71.25 Id. at 1992. Florida argued that Hall was

not allowed to present any additional evidence of his intellectual

disability because he had failed as a threshold matter to present

evidence of an IQ score of 70 or below. Id. The Florida court’s

interpretation of the strict 70 cutoff did not permit consideration of the

SEM. Because Hall failed to meet the strict cutoff, he was not allowed

to present evidence of adaptive deficits. See id.

25Hall presented multiple IQ scores, but some were excluded, leaving only scores between 71 and 80. Id. 172 The United States Supreme Court noted that, on its face, there

was nothing in the Florida statute to preclude consideration of the

standard error of measurement. Hall, 134 S.Ct. at 1994. The problem

was that the Florida Supreme Court had interpreted the provisions of

the intellectual disability statute too narrowly:

It has held that a person whose test score is above 70, including a score within the margin for measurement error, does not have an intellectual disability and is barred from presenting other evidence that would show his faculties are limited.

Id. at 1994 (citing Cherry v. State, 959 So. 2d 702, 712-13 (Fla. 2007)

(per curiam)). This interpretation contradicts established medical

practice because it uses an IQ score as “final and conclusive evidence of

a defendant’s intellectual capacity” even though an IQ score is “on its

own terms, imprecise” and because experts in the field would still

consider other evidence. Id. at 1995. Hall holds that individual states

may not bar a defendant from litigating an intellectual disability claim

by implementing a mandatory and rigid IQ test-score cutoff, without

considering the IQ test’s SEM. Id. at 2001.

Texas post-Hall

Nearly six months after Hall, in Ex parte Cathey, this Court

173 reaffirmed Texas’ use of the definition of intellectual disability adopted

in Briseno. Ex parte Cathey, 451 S.W.3d 1, 9 fn.15 (Tex. Crim. App.

2014). Briseno was affirmed again in Ex parte Moore, 470 S.W.3d 481

(Tex. Crim. App. 2015), cert. granted in part, 136 S. Ct. 2407 (2016). In

Moore, this Court reiterated that, in the absence of action by the

Legislature, Texas would “continue to follow the AAMR’s 1992

definition of intellectual disability . . . adopted in Briseno for Atkins

claims presented in Texas death-penalty claims.” Id. at 486 (citing In

re Allen, 462 S.W.3d 47, 52 (Tex. Crim. App. 2015)). Citing Hall, this

Court stated that “the legal test we established in Briseno remains

adequately ‘informed by the medical community’s diagnostic

framework.’” Id. at 487 (citing Hall, 134 S.Ct. at 2000).

Appellant’s contention that Briseno was rendered

unconstitutional after Hall lacks merit. Hall stands for the proposition

that states cannot implement bright line IQ cutoff scores when

considering a capital defendant’s claim of intellectual disability. 134

S. Ct. at 2001. Briseno does not call for the use of a bright-line IQ

cutoff score. Appellant cites no Texas cases implementing a bright-

174 line IQ cutoff score. Indeed, in Moore, this Court stated:

Regarding Briseno’s first prong, general intellectual functioning is defined by the IQ and obtained by assessment with a standardized, individually administered intelligence test. There is a measurement error of approximately five points in assessing IQ, which may vary from instrument to instrument. Therefore, when determining whether an applicant has met Briseno’s first prong, we consider the fact that any IQ score could actually represent a score that is five points higher or five points lower than the score than he actually obtained.

Moore, 470 S.W. 3d at 487 (internal quotations and citations omitted);

see also Ex parte Hearn, 310 S.W.3d 424, 428 (Tex. Crim. App. 2010)

(noting that there is a measurement error of approximately 5 points in

assessing IQ, which varies from instrument to instrument; thus,

depending on the IQ test used, a score could actually represent a score

that is five points higher or five points lower than the actual test

result); Ex parte Woods, 296 S.W.3d 587, 608 n.35 (Tex. Crim. App.

2009) (taking into account a potential five-point deviation up or down

in an IQ score). Notably, the Hall Court did not identify Texas as a

state that, like Florida, employs a bright-line IQ cutoff score. Because

the definition of intellectual disability announced in Briseno does not

preclude consideration of the SEM, it is not unconstitutional under

175 Hall.

In his brief, Appellant invites this Court to reconsider Briseno in

light of Hall. He cites Judge Price’s concurring opinion in Cathey and

Judge Alcala’s dissent26 in Ex parte Lizcano, in support of his

contention that Briseno is un-scientific and unconstitutional. See

Cathey, 451 S.W.3d at 28 (Price, J., concurring); Ex parte Lizcano, No.

WR-68,348-03, 2015 Tex. Crim. App. Unpub. LEXIS 331, at *2 (Tex.

Crim. App. Apr. 15, 2015) (Alcala, J., dissenting) (not designated for

publication). Neither opinion advances Appellant’s argument. In his

brief opinion in Cathey, Judge Price criticized Briseno, however, his

disagreement was “with the Court’s decidedly non-diagnostic approach

to evaluating the adaptive deficits prong[,]” not the subaverage-IQ

prong. Cathey, 451 S.W.3d at 28. In Lizcano, Judge Alcala criticized

Briseno, but, like Judge Price, her criticism concerned the factors used

to determine the adaptive functioning prong, not the subaverage-IQ

prong. Lizcano, 2015 Tex. Crim. App. Unpub. LEXIS at *5-6. As

argued above, Hall concerns the subaverage-IQ prong, not the adaptive

functioning prong. 26 In fact, Appellant refers to “Judge Newell’s dissenting opinion” in Lizcano. Although Judge Newell did dissent, it was Judge Alcala who filed the dissenting opinion. 176 On appeal, Appellant also complains that Briseno requires a

defendant to prove that his deficits in adaptive functioning are the

result of an intellectual disability and not a personality disorder.

(Appellant’s Brief pp.90-98). This argument is procedurally barred as

Appellant failed to raise it in the trial court. See Tex. R. App. P.

Regardless, Appellant’s complaint lacks merit. Briseno does not

require a defendant to prove that his adaptive deficits are not the

result of a personality disorder. The complained-of language from

Briseno provides as follows:

The adaptive behavior criteria are exceedingly subjective, and undoubtedly experts will be found to offer opinions on both sides of the issue in most cases. There are, however, some other evidentiary factors which factfinders in the criminal trial context might also focus upon in weighing evidence as indicative of mental retardation or of a personality disorder.

Briseno, 135 S.W.3d at 8 (emphasis added). The above-quoted

language does not impose an additional evidentiary requirement upon

the defense. This language simply explains that the proposed

“evidentiary factors” may help to distinguish between adaptive deficits

related to intellectual disability and adaptive deficits related to

177 something other than intellectual disability. See Moore, 470 S.W.3d at

488 (stating that “An applicant must . . . demonstrate by a

preponderance of the evidence that his adaptive behavior deficits are

related to significantly sub-average general intellectual functioning

rather than some other cause.”).

In any event, use of the Briseno evidentiary factors - - which

would then be used to weigh evidence “as indicative of mental

retardation or of a personality disorder” - - is not mandatory. Id. at 8.

This Court stated that the factfinders “might . . . focus” on the listed

evidentiary factors. Id. (emphasis added); Ex parte Sosa, 364 S.W.3d

889, 892 (Tex. Crim. App. 2012) (stating that “we did not make

consideration of any or all of [the Briseno] factors mandatory”).

Issue 31 should be overruled.

STATE’S RESPONSE TO ISSUE NOS. 32-34: THE TRIAL COURT DID NOT ERR IN OVERRULING APPELLANT’S MOTION TO QUASH, HIS MOTION TO RE- QUESTION JURORS, AND HIS MOTION TO LIMIT THE STATE’S VOIR DIRE.27

In Issue 32, Appellant contends that the trial court erred in

overruling his motion to quash the jury after the Supreme Court

decision in Hall. In Issue 33, Appellant contends that the trial court

27 Because Appellant presents Issues 32-34 together, the State will do so as well. 178 erred in overruling his request to re-question the qualified jurors in

light of Hall. In Issue 34, Appellant contends that the trial court erred

in overruling his objection that the State not be allowed to voir dire the

jury under Briseno. Appellant’s contentions lack merit.

Individual voir dire began on March 31, 2014. (RR12). On May

27, 2014, while jury selection was still underway in this case, the

Supreme Court decided Hall. See Hall, 134 S.Ct. 1986. At the time

Hall was decided, ten jurors had been seated on Appellant’s jury.28

On June 3, 2014, Appellant filed a Motion to Quash the Jury

Panel based on Hall. (CR:23-24). The visiting judge conducted a

hearing on Appellant’s motion but deferred a ruling until the motion

was presented to the trial court. (RR47:5-12). Appellant also

“object[ed] to the State . . . telling jurors that the burden on the Defense

is to prove an IQ of 70 or below, or below 70.” (RR47:5). Appellant

argued that “may be unconstitutional or is unconstitutional” under

Hall. (RR47:5-6). This objection was overruled. (RR47:11-12).

On June 13, 2014, the trial court conducted a second hearing on 28 Dunn-Jelen (#208); Daquiera (#256); Blomberg (#259); Kvalheim (#316); Clark (#353); Davenport (#504); Agnes (#588); Kiefer (#685); Wells (#802); and, McElyea (#857). 179 Appellant’s motion. At that time, Appellant argued that “Briseno no

longer applies” after Hall. (RR53:15). The defense maintained its June

3rd argument that the jury had been improperly questioned about the

Briseno factors during voir dire. (RR53:16-17). Seven days later, the

trial court convened a third hearing, during which it denied Appellant’s

motion and stated:

The Court is denying that motion. And offering the Defense the opportunity as well as the State to bring the panel in either collectively or one at a time to revisit the issue of 70 benchmark for mental retardation. The State - - made reference by the State. Bearing in mind that the Court will note for the record that in its questioning, the State did include other factors that the jury may take into consideration when making a determination of mental retardation. However, since the majority of the questions asked to the majority of the jurors indicated 70, I think it is appropriate to revisit with the jurors. The Defense will have the option of whether it wishes to proceed in that manner. Or the Court is also of the opinion should the issue surface during the trial, that the matter could be cured by a jury instruction.

(RR56:4-5).

After the competency trial, but before the beginning of the

punishment trial, the trial court conducted a fourth hearing in

connection with Appellant’s motion to quash. (RR59:9). The trial court

180 stated that, in light of Hall, it was going to individually question each of

the jurors on the panel. (RR59:9). The judge described the procedure to

be followed:

Defendant having been found competent to stand trial, there’s several issues we need to address, one being reviewing the . . . mental retardation issue with the panel. The Court is proposing to do that individually, by calling in the jurors in the order they were selected.

In the event any indicate they are not able to follow the law, then we do have alternate jurors that we can question. The Court is proposing to do that questioning and, in the event that the jurors raise issues or questions, then I’ll allow the attorneys to address or answer those questions or question jurors as they may be needed.

In that absence, however, if the jurors indicate they are able to follow the law, then that will conclude the Court’s questioning, with respect to each and every juror, and that will be the only issue that the Court will go into.

(RR59:9-10). Appellant objected to the proposed procedure. (RR59:13-

18).

Each juror was then brought into the courtroom individually,

informed that during jury selection the United States Supreme Court

issued an opinion regarding intellectual disability and now, the trial

court was meeting with each of the jurors to clarify the definition of

181 intellectual disability. The judge reminded each juror of the three-

prong definition of intellectual disability and then advised that with

regard to IQ scores, the score is not fixed, but represents a range or

approximation of the IQ. (RR59:21-61). Each juror was asked whether

he or she could follow the law and whether he or she had any questions.

Each of the jurors testified that they could follow the law. None had

any questions. (RR59:22, 25, 30-33, 35-36, 38-45, 47, 49-50, 52, 55-56,

58, 60-61).

After the trial court concluded its questioning of the jurors,

Appellant made a bill of exception at which time he recited a list of

questions that he proposed to ask the prospective jurors following Hall.

(RR59:61-65).

Standard of Review

Motion to Quash

An appellate court reviews a trial court’s denial of a motion to

quash a jury panel under an abuse of discretion standard. See Mendoza

v. State, 552 S.W.2d 444, 447 (Tex. Crim. App. 1977).

Limitation on Questioning

An appellate court reviews a trial court’s limitation on questioning

182 prospective jurors for an abuse of discretion. See Tamez v. State, 27

S.W.3d 668, 672 (Tex. App.—Waco 2000, pet. ref’d).

Preventing defense counsel from asking proper questions of the

venire is not an error of constitutional dimension per se. See Easley v.

State, 424 S.W.3d 535, 536 (Tex. Crim. App. 2014). The trial court

retains the authority to impose reasonable restrictions “for various

reasons, among them to curb the prolixity of what can become the

lengthiest part of a criminal proceeding.” Bodde v. State, 568 S.W.2d

344, 350 (Tex. Crim. App. 1978).

Appellant’s issues are insufficiently briefed and therefore nothing

is presented for this Court’s review. See Tex. R. App. P. 38.1(i). After

describing the facts underlying his claims, Appellant devotes a single

paragraph to argue three issues. He fails to recite the standard of

review and he fails to offer any specific argument or discussion of the

authority in support of his contentions regarding any of the three

complained-of issues. This Court is not required to make Appellant’s

case for him. Garcia v. State, 887 S.W.2d 862, 882 (Tex. Crim. App.

183 1994) (stating that a reviewing court “will not brief appellant’s case for

him”).

Issue 32: Motion to Quash

The trial court did not abuse its discretion in overruling

Appellant’s motion to quash the jury panel after the Supreme Court’s

decision in Hall. As argued above, Hall stands for the proposition that

states may not prevent a defendant from litigating an intellectual

disability claim by implementing a mandatory and rigid IQ test score

cutoff, without considering the IQ test’s SEM. Hall, 134 S.Ct. at 2001.

Unlike Florida, Texas does not utilize a cut-off IQ score as a threshold

for litigating an intellectual disability claim. Because Texas has no

applicable statute, intellectual disability claims in death penalty cases

are governed by Briseno. Briseno allows for consideration of the SEM in

connection with an IQ test. Briseno, 135 S.W.3d at 7 n.24. As a result,

even after Hall, Briseno remains valid law. The jurors in this case were

questioned in accordance with Briseno. Appellant points to no place in

the transcript where any juror was questioned improperly.29

29 During the second hearing on Appellant’s motion to quash, defense counsel argued that the jurors were instructed “that the IQ was 70 or below, and sometimes they were told below 70[.]” (RR53:5). Counsel did not identify the jurors she claims were improperly questioned. 184 Before the jury was sworn, the trial court conducted a brief

hearing with each individual juror. Each juror was informed of the

Supreme Court’s recent decision in Hall, reminded of the three-prong

test for intellectual disability, and informed that the significantly-

subaverage-IQ score of 70 is not a fixed number, but represents a range.

Each juror was asked whether he or she could follow the law. The

jurors were asked if they had any questions. Although none had

questions, if a juror had asked one, the trial court planned to “allow the

attorneys to address or answer those questions or question jurors as

they may be needed.” (RR59:9-10).

From the beginning, the jurors were questioned in accordance

with valid law. Nevertheless, the trial court took the added precaution

of informing each juror individually that an IQ score is not a fixed score.

Each of the jurors said that they could follow the law. Accordingly the

trial court did not abuse its discretion in overruling Appellant’s motion

to quash. See Mendoza, 552 S.W.2d at 447. At a minimum, the decision

falls within the zone of reasonable disagreement. Weatherred v. State,

15 S.W.3d 540, 542 (Tex. Crim. App. 2000).

Issue 32 should be overruled.

185 Issue 33: Re-question Jurors

The trial court did not err in denying Appellant’s motion to re-

question the jurors following Hall. Again, Hall did not change the law

in Texas. Like the State, during individual voir dire, Appellant had

forty-five minutes to question each prospective juror and at that time he

could have asked them about the SEM. Notably, Appellant offers no

explanation as to why he was unable to ask the questions he proposed

during his bill of exception during his regular voir dire.

It was well within the trial court’s discretion to deny Appellant’s

motion to re-question the jurors. See Bodde, 568 S.W.2d at 350 (stating

that a trial court may impose reasonable restrictions on voir dire).

Appellant’s proposed questions – all of which he could have asked

during his portion of voir dire – would have simply and unnecessarily

prolonged voir dire. In any event, any alleged harm was cured when

the trial court conducted its own questioning, informed each juror that

an IQ score is not a fixed number, and ensured that each juror could

follow the law.

Issue 33 should be overruled.

186 Issue 34: Objection to State’s Voir Dire

The trial court did not err in denying Appellant’s objection to the

State being allowed to say “70 or below” in explaining the definition of

intellectual disability. The only basis for Appellant’s objection to the

State’s voir dire is his claim that it is not allowed under Hall. As

argued above, Hall did not change the law in Texas. Hall rejects bright-

line 70 IQ cutoff scores, which Texas does not apply. Appellant points

to no evidence that the State informed any juror during voir dire that

an IQ score is fixed or that the SEM is not to be considered.

Issues 34 should be overruled.

STATE’S RESPONSE TO ISSUE NOS. 35-36: APPELLANT WAS NOT DEPRIVED OF A LAWFULLY CONSTITUTED JURY.

In Issues 35 and 36, Appellant contends that the trial court’s

rulings “in reference to each juror complained about previously”

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. 105-

07).

187 Appellant’s contentions lack merit as he has failed to show that he

was deprived of a lawfully constituted jury. 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).

Issues 35 and 36 should be overruled.

STATE’S RESPONSE TO ISSUE 37: THE TRIAL COURT DID NOT ERR IN DENYING APPELLANT’S MOTION TO DISQUALIFY THE DISTRICT ATTORNEY’S OFFICE.

Appellant contends that the trial court erred in denying his pre-

trial motion to disqualify the Dallas County District Attorney’s Office

from prosecuting the instant case. He contends that he was denied due

process as the result of a conflict of interest that arose when his former

second-chair counsel was hired as an Assistant District Attorney while

the case was in the pretrial stages. Appellant’s contentions lack merit.

Appellant was originally tried in September 1987. (CR:208). At

188 the time, he was represented by Wayne Huff and Doug Parks.

(CR:208). When his case was remanded for a new trial on punishment,

the trial court appointed new counsel. In January 2011, Russell Wilson

was appointed second-chair trial counsel. (CR:196; RR3:6, 14). On

October 6, 2011, Wilson filed a motion to withdraw from Appellant’s

case. (CR:196). In his motion, Wilson wrote that “[i]n June of 2011 [he]

accepted employment with the Dallas County District Attorney’s

Office.” (CR:196). “After accepting employment, [Wilson] no longer

performed work on Mr. Thomas’s behalf.” (CR:196). The trial court

granted Wilson’s motion to withdraw. (CR:197).

On September 7, 2011, Appellant filed a motion to disqualify the

Dallas County District Attorney’s Office. (CR4:9-12). The basis for

Appellant’s motion was that Wilson, one of the attorneys who

represented him prior to trial, was now employed by the office

responsible for his prosecution.30 (CR4:9-12). The trial court conducted

a hearing on Appellant’s motion. At the hearing, Wilson testified that

he was appointed to Appellant’s case as “the second chair.” (RR3:6).

Regarding his work on the case, Wilson testified that he had at least

30Wilson could not the recall specific date he began at the District Attorney’s Office, but he believed it was either July 1, 2011 or July 5, 2011. 189 one conversation with Appellant, some conversations with lead defense

counsel, and he had received a packet of discovery from the State.

(RR3:8-10). According to Wilson, he had “not functioned as

[Appellant’s] attorney . . . since [he] knew that [he] was going to be

taking a position at the district attorney’s office.” (RR3:7). He did not

believe that he had any information about the case or witnesses that

lead counsel did not also have. (RR3:17-18).

Wilson testified that prior to accepting employment at the District

Attorney’s Office, he discussed with then-elected District Attorney

Craig Watkins “certain understandings regarding the law and the

discretion of the district attorney has [sic] as it relates to whether or not

to seek a recusal. (RR3:21-22). Wilson and Watkins later had another

conversation during which Wilson was instructed that he was not

allowed to discuss Appellant’s case with “anybody.” (RR3:20). The lead

prosecutor, Brandon Birmingham, was not allowed to discuss

Appellant’s case with Wilson either. (RR3:20).

Wilson testified that he does not supervise Birmingham or anyone

else in the felony trial bureau division. (RR3:22). He agreed, however,

that if Appellant were sentenced to death, lawyers in one of the

190 divisions that he does supervise would be responsible for reviewing

Appellant’s case. (RR3:12-13).

Appellant’s motion was denied. (RR4:4).

It is well-settled law that a district attorney’s office, not a trial

court, determines at its discretion when a conflict of interest exists that

requires recusal. See Coleman v. State, 246 S.W.3d 76, 81 (Tex. Crim.

App. 2008); State ex. rel. Hill v. Pirtle, 887 S.W.2d 921, 939 (Tex. Crim.

App. 1994) (indicating the district attorney must initiate his own

recusal). The offices of the district attorneys in Texas are

constitutionally created and constitutionally protected. State ex rel.

Eidson v. Edwards, 793 S.W.2d 1, 4 (Tex. Crim. App. 1990). The

authority of a district attorney cannot be abridged or taken away, and a

court may not remove a district attorney from an individual case absent

one of three statutorily defined circumstances: (1) incompetency, (2)

official misconduct, or (3) intoxication. Id. at 4-5; Tex. Loc. Gov’t Code

Ann. §§ 87.013, 87.018(a) (West 2008). Moreover, a trial by jury must

be held before removal. Eidson, 793 S.W.2d at 5. If a trial court

removes a district attorney and his office from a case by court order, it

191 does so “without authority or jurisdiction.” See id. at 5 (concluding

error occurred where the trial judge’s order disqualified the district

attorney because prior defense counsel became an assistant prosecutor

and the trial court sought to avoid the appearance of impropriety).

In Eidson, defense counsel Ross Adair represented the defendant

during the investigation stage of a case and at an examining trial.

Eidson, 793 S.W.2d at 3. Adair later joined the district attorney’s office

and conducted research for the State’s response to the motion to recuse

the district attorney in his former client’s case. Id. When the elected

district attorney realized Adair had previously represented the

defendant, the district attorney gave him instructions not to discuss the

case with anyone in the District Attorney’s office nor allow anyone to

discuss it in his presence. Id. The trial judge granted the defense’s

motion to recuse the district attorney’s office based on an appearance of

impropriety. Id. Because no statutory factor for removal was met, this

Court held the trial judge entered the order without authority or

jurisdiction, stating that if a conflict of interest exists, responsibility for

recusal lies with the district attorney’s office, not the trial court. Id. at

6.

192 Analysis

As a threshold matter, it is the State’s position that Appellant

failed to properly brief this issue. See Tex. R. App. P. 38.1(i). Appellant

asserts that the trial court erred and provides a few facts in connection

with his complaint, but other than the citation to Eidson, he fails to

offer any specific argument or discussion of the authority in support of

his contention. This Court is not required to make Appellant’s case for

him. Garcia, 887 S.W.2d at 882.

In any event, Appellant’s argument fails. Current Texas law

provides that if an assistant district attorney has previously

represented a defendant in a particular proceeding, then that particular

attorney is disqualified from assisting in the prosecution of the case, but

the elected prosecutor and his other assistants are not. Scarborough v.

State, 54 S.W.3d 419, 424 (Tex. App.—Waco 2001, pet. ref’d). Therefore,

although Wilson could not participate in the instant prosecution,

nothing prevented the district attorney or any of his assistants from

prosecuting Appellant.

The State notes that in his motion and at the hearing, Appellant

did not raise any statutory grounds for District Attorney Craig Watkins’

193 disqualification, and no statutory grounds existed. Appellant argued at

trial and contends on appeal that a trial court may disqualify a district

attorney where a conflict of interest rises to the level of a due process

violation, but he failed to assert or show how the alleged conflict

violated due process. He now asks this Court to conclude that this case

constitutes an exception to Eidson and current Texas law because (1) it

is a death case, (2) former counsel worked on the case, (3) appellate

attorneys in the District Attorney’s office involved in prosecuting the

case fall under Wilson’s supervision, (4) the district attorney

determined to seek death before hiring Wilson, and (5) “the appearance

of impropriety in the due process of the case.” (Appellant’s Brief p. 108).

In State ex rel. Hill v. Pirtle, this Court held that “[a] trial court

may not disqualify a district attorney or his staff on the basis of a

conflict of interest that does not rise to the level of a due-process

violation.” Landers v. State, 256 S.W.3d 295, 304 (Tex. Crim. App.

2008) (citing State ex rel. Hill v. Pirtle, 887 S.W.2d 921, 927 (Tex. Crim.

App. 1994)). At trial, as on appeal, Appellant argues generally that his

due process rights were violated based on an alleged conflict of interest,

but he does not point to any evidence of it in the record. Appellant does

194 not allege his former counsel conveyed information to the prosecution

and he does not allege wrongdoing by anyone involved. There is no

evidence or even suggestion of any impropriety in the record. See

Landers, 256 S.W.3d at 297-98 (holding no due process violation in

prosecution for intoxication manslaughter where elected district

attorney previously represented defendant in DWI prosecution because

there was no evidence the State used any confidential information).

Appellant’s assertion the State violated his due process rights—

based on an “appearance of impropriety,” that this is a death penalty

case, that his former counsel worked extensively on the case, that

Wilson supervised the appellate division, or that the District Attorney

made the decision to seek a death sentence prior to hiring Wilson—

carries no weight because no actual due process violation occurred.

The trial court properly denied Appellant’s motion to disqualify

the District Attorney. Issue 37 should be overruled.

STATE’S RESPONSE TO ISSUE 38: THE TRIAL COURT PROPERLY OVERRULED APPELLANT’S MOTION FOR MISTRIAL DURING APPELLANT’S COMPETENCY TRIAL.

Appellant contends that the trial court erred in overruling the

motion for mistrial that he made during his competency trial. He

195 contends that the prosecutor’s remark regarding the “murder weapon”

violated his right to due process and due course of law and prejudiced

the jury impaneled to determine his competency. Appellant’s

contentions lack merit.

Prior to voir dire in connection with Appellant’s competency trial,

the defense filed a motion in limine “with respect to informing the jury

in any manner the offense for which the Defendant is accused[.]”

(CR:68). The trial court granted Appellant’s motion and stated:

. . . I did grant the Motion in Limine filed by Defense. Both sides instruct their witnesses not to go into the offense.

(CR:70; RR57:8).

During the competency trial, while cross-examining Appellant’s

expert, the prosecutor referred to the lack of a “murder weapon.”

(RR58:29). The following exchange took place:

[Prosecutor]: He has enough understanding of these proceedings to tell you that he was framed, right?

[McGarrahan]: I’m not sure I understand the question.

[Prosecutor]: You mentioned that he told you that the jury in this trial that was upcoming wasn’t fixing to see nothing. And he used the words because he was “convicted without a 196 weapon.” That was something that was important to him.

He kept coming back to the fact there was no weapon; is that right?

[McGarrahan]: The fact that there was no weapon; and there must be, by law, a weapon. Yes.

[Prosecutor]: All right. Now, it is a fact - - it is not fiction, but it is a fact that there was no murder weapon - - I’m sorry.

(RR58:29). At that point, defense counsel objected and asked for the

jury to disregard the prosecutor’s last statement. (RR58:30). Outside

the presence of the jury, the defense requested a mistrial and argued

that an instruction to disregard would not “remove this harm from this

jury’s mind[.]” (RR58:31-33). The prosecutor stated that his use of the

word “murder” was unintentional. (RR58:34). He pointed out that in

the testimony prior to that time, the jury had already heard several

terms tending to indicate a serious underlying felony: “weapon,”

“exoneree,” and “Conviction Integrity Unit.” (RR58:34). The State

argued that an instruction to disregard would cure any alleged error.

(RR58:34).

The trial court denied Appellant’s motion for mistrial and gave the

197 jury the following instruction:

. . . Ladies and Gentlemen, during the prosecutor’s questioning of the witness, reference was made to the underlying offense alleged against the Defendant. You are hereby instructed to disregard any reference to that offense and not consider it for any purpose, whatsoever.

(RR58:36-37, 40).

Mistrial

An appellate court reviews the trial court’s denial of a motion for

mistrial under an abuse-of-discretion standard. Hawkins v. State, 135

S.W.3d 72, 77 (Tex. Crim. App. 2004). A mistrial is an appropriate

remedy in extreme circumstances for a narrow class of highly

prejudicial and incurable errors. Hawkins, 135 S.W.3d at 77; Wood v.

State, 18 S.W.3d 642, 648 (Tex. Crim. App. 2000). A mistrial should

only halt trial proceedings when an error is so prejudicial that

continuing the trial would be wasteful and futile because an impartial

verdict cannot be reached or a conviction would have to be reversed on

appeal due to obvious error. Ladd, 3 S.W.3d at 567.

Competency Trial

Because a defendant’s guilt or innocence is not at issue during a

198 hearing on his competency to stand trial, it is improper to introduce

evidence of the offense during that hearing. See Callaway v. State, 594

S.W.2d 440, 443 (Tex. Crim. App. 1980) (citing Ex parte Hagans, 558

S.W.2d 457 (Tex. Crim. App. 1977)). However, not every mention of the

crime itself is prejudicial; to be prejudicial, "[t]he evidence of the offense

presented to the competency jury must be of such a nature as to deny

the accused a fair and impartial determination of his competency."

Brandon v. State, 599 S.W.2d 567, 580 (Tex. Crim. App. 1979), vacated

on other grounds, 453 U.S. 902, 101 S. Ct. 3134, 69 L. Ed. 2d 988 (1981).

In the event of an error during the competency proceedings, the

appropriate remedy is to abate the appeal and remand the cause to the

trial court to determine the feasibility of a retrospective competency

proceeding. See Owens v. State, 473 S.W.3d 812, 816 (Tex. Crim. App.

2015) (citing Turner v. State, 422 S.W.3d 676, 696-97 (Tex. Crim. App.

2013)).

Appellant was not denied a fair determination of his competency

because the prosecutor referred to the “murder weapon” during cross-

examination. See Goodman v. State, 701 S.W.2d 850, 863 (Tex. Crim.

199 App. 1985) overruled on other grounds by Hernandez v. State, 757

S.W.2d 744, 752 (Tex. Crim. App. 1988) (finding no reversible error

where the single reference to “the term ‘capital murder’ did not so

confuse or prejudice the jury against [Goodman] that he was deprived of

a fair determination on the matter of his competency to stand trial.”).

That the prosecutor made a single, passing reference to a “murder

weapon” implied only the nature of the offense. Importantly, the

prosecutor did not refer to the facts of the offense: Appellant broke into

the Finch home, stabbed Fred and Mildred to death, and then stole a

significant portion of Fred’s wardrobe and a number of his other

personal belongings. Compare Barber v. State, 757 S.W.2d 359, 362

(Tex. Crim. App. 1988) (finding no reversible error because the use of

the term “capital murder” during Barber’s competency trial referred

only to the nature of the offense, but not to the facts of the case) with

Callaway, 594 S.W.2d at 441-42 (finding deprivation of a fair

determination of competency where prosecutor argued that Callaway

would be “back on the streets” and witnesses referred to Callaway’s

prior offenses and that he wanted to be placed in a psychiatric facility

because it would be easy to escape). The jury heard general testimony

200 about the existence of fingerprints and DNA, but they did not learn

specific details or any of the other evidence against Appellant. Notably,

the jury did not learn the true nature of the charged offense: capital

murder.

In any event, any alleged error was cured when the trial court

sustained Appellant’s objection and instructed the jury to disregard the

prosecutor’s statement. Our system presumes that judicial

admonishments to the jury are efficacious. Waldo v. State, 746 S.W.2d

750, 754 (Tex. Crim. App. 1988). There is no evidence that shows the

jury disregarded the trial court’s instruction, and the remark was not so

prejudicial that they could not ignore it. As such, the trial court acted

within its discretion in denying the motion for mistrial and there was

no harm. See Barber, 757 S.W.2d at 362 (finding any error caused by

witness’s reference to underlying “capital murder” during Barber’s

competency trial cured when trial court sustained the objection and

instructed the jury to disregard).

Issue 38 should be overruled.

201 STATE’S RESPONSE TO ISSUE NO. 39: APPELLANT’S CLAIM THAT THE TRIAL COURT ERRED IN OVERRULING HIS OBJECTION DURING THE COMPETENCY TRIAL IS NOT PROPERLY BEFORE THE COURT.

Appellant contends that the trial court erred in overruling his

objection during the competency trial. He complains that the

prosecutor’s question regarding the reversal of Appellant’s 1987 trial

was inadmissible under Rule 403. Appellant’s contention is not

properly before the Court.

During the competency trial, the prosecutor questioned

Appellant’s expert about the fact that Appellant was hoping to get a

“harsher sentence” so that he would have “more appeals.” (RR58:23).

The following exchange occurred:

[State]: So he has more appeals. It is true that Kenneth Thomas - - appeals have been very fruitful for Kenneth Thomas, haven’t they?

[McGarrahan]: They have.

[State]: Okay. That first trial that happened in ’87 in February, that case was reversed on appeal, correct?

(RR58:23-24). Defense counsel objected “to relevancy.” (RR58:24). The

objection was overruled. (RR58:24). The prosecutor asked his question

202 again, after which Appellant objected again “to relevancy.” (RR58:24).

The objection was again overruled. (RR58:24).

Grounds of error urged on appeal must comport with the

objections made at trial or error is not preserved. Guevara v. State, 97

S.W.3d 579, 583 (Tex. Crim. App. 2003).

Appellant’s objection on appeal does not comport with the

objection he made at trial. At trial, Appellant objected to the

prosecutor’s question on the basis of relevancy. (RR58:24). On appeal,

Appellant argues that he is entitled to a reversal on the basis of a

violation of Rule 403. (Appellant’s Brief pp. 113-14). Thus, Appellant

failed to preserve error regarding the complained-of question. See

Guevara, 97 S.W.3d at 583.

The fact that Appellant’s first trial was reversed on appeal was

highly relevant. See Tex. R. Evid. 401. Indeed, as the prosecutor’s

subsequent questioning showed, Appellant articulated to Dr.

McGarrahan that his prior sentence was “vacated” and his case

“remanded.” (RR58:24-25). That Appellant’s prior sentence was

203 vacated and that he was capable of articulating this information was

probative of his knowledge and understanding of the legal process. This

evidence was relevant to the competency determination: whether

Appellant had a “rational as well as factual understanding of the

proceedings against [him].” Tex. Code Crim. Proc. Ann. art. 46B.003(a)

(West 2006).

On appeal, Appellant contends that the complained-of evidence

“allowed the jury to confuse the issue of competency with the

underlying offense of murder.” (Appellant’s Brief p.114). He fails,

however, to explain this confusion and he fails to specify how he was

prejudiced. As such, this argument is insufficiently briefed and nothing

is presented for this Court’s review. See Tex. R. App. P. 38.1(i).

Regardless, the same information came in elsewhere without

objection. (RR58:61). The complained-of question occurred during the

State’s cross-examination of Dr. McGarrahan. (RR58:24). Later,

during the direct examination of defense witness Cynthia Short,

defense counsel asked a question to which Short responded, “Kenneth

had a belief that Judge White, in particular, had played a specific role

in getting the case reversed.” (RR58:61). Defense counsel did not object

204 to this statement. (RR58:61). This Court has held that the erroneous

admission of evidence will not result in reversal when the same

evidence was received elsewhere without objection. See Coble v. State,

330 S.W.3d 253, 282 (Tex. Crim. App. 2010).

Issue 39 should be overruled.

STATE’S RESPONSE TO ISSUE NOS. 40-41: THE EVIDENCE WAS SUFFICIENT TO PROVE APPELLANT’S COMPETENCY TO STAND TRIAL.

In two issues, Appellant contends that the evidence is legally and

factually insufficient to support the jury’s verdict that he was competent

to stand trial for capital murder. Appellant’s contentions lack merit

Dr. Antoinette McGarrahan, a forensic and neuropsychologist,

was contacted by the defense in 2012 to conduct a neuropsychological

evaluation as well as a competency-to-stand-trial evaluation of

Appellant. (RR57:163-64, 167). Since then, she has spent “a little over

twelve hours” evaluating Appellant. (RR57:167). In connection with

Appellant’s recent competency evaluation, Dr. McGarrahan reviewed:

Appellant’s prior mental health evaluations; transcripts of prior 205 proceedings; affidavits from Appellant’s family; medical records; and,

school records. (RR57:170).

According to Dr. McGarrahan, the results of her

neuropsychological evaluation “are almost identical to the results [of his

neuropsychological evaluation conducted] about 28 years ago.”

(RR57:173). She testified that it would be difficult “to be able to fake

from one period to 28 years later on the same tests[.]” (RR57:173). She

also administered tests to determine whether Appellant was

malingering and found that “he was putting forth good effort[.]”

(RR57:173). Indeed, Appellant tried to present himself in a positive

light, without intellectual disability, “because he believes that that

belittles him and removes some of his credibility[.]” (RR57:174).

Dr. McGarrahan testified that Appellant was “not presently

competent to stand trial.” (RR57:171-72). Her opinion was based on:

neuropsychological testing, which showed that Appellant has a full

scale IQ of 71. (RR57:172). Additionally, “he has significant

impairment in his ability to problem solve, plan, organize, [and] think

rationally.” (RR57:172). Appellant perseverates; he “has difficulty

getting past certain beliefs that he has, that are not based in reality[.]”

206 (RR57:172). Appellant is “not able to rationally assist his attorneys, as

he proceeds to trial.” (RR57:172).

For twenty-eight years, Appellant has maintained the belief,

despite being informed to the contrary, that the he cannot be convicted

“if the State does not have a weapon.” (RR57:175). He has been told by

counsel and others that the weapon is not necessary for conviction, but

his belief remains strong. (RR57:175). Dr. McGarrahan testified that

the reason Appellant maintains his belief is rooted in his mental illness.

(RR57:175). His belief is more than just a simple misunderstanding of

the legal system. (RR57:175-76).

Another belief that Appellant has maintained over the years is

that a State’s witness has been involved in “pulling the strings to make

sure that he gets the worst situation possible.” (RR57:177). “He

believes that this individual dressed in a jail uniform and escorted him

over to court, on one occasion.” (RR57:177). Appellant also believes

that it would be to his benefit to “get the worst punishment possible.”

(RR57:179). Given Appellant’s irrational beliefs, he is unable to

rationally consult with his attorneys regarding a strategy for his

defense. (RR57:179).

207 Dr. McGarrahan testified that Appellant has a factual, but not

rational understanding of the proceedings against him. (RR57:181).

And, distortions in his memory and false beliefs affect his ability to

disclose information to counsel. (RR57:182). He does, however, have a

good understanding of the adversarial nature of the proceedings and

can exhibit appropriate courtroom behavior. (RR57:184). If he were to

testify, he could respond to questions and verbalize his responses, but

“he would have significant difficulty testifying in a rational, logical

manner.” (RR57:184). Appellant could be helped with medication and

competency restoration training. (RR57:186).

According to Dr. McGarrahan, Appellant has a delusional disorder

but conceded that he is not schizophrenic and is not responding to

outside voices or voices in his head. (RR57:185; RR58:6). Appellant is

intellectually disabled, evidenced by his low IQ and deficits in his

adaptive behavior, many of which began prior to the age of 18.

(RR57:185).

Dr. McGarrahan conceded that in 1979, Appellant was involved

in a trial and testified in his own defense. (RR58:11). At that time, he

responded to questions on direct and cross-examination in front of a

208 jury. (RR58:11). To Dr. McGarrahan’s knowledge, no competency

issues were raised at the time of that trial. (RR58:13). The first time

competency was raised was in October of 1986, during jury selection.

(RR58:13). At that time, Drs. Crowder, Koons, Lovett, and Nottingham

testified or wrote a report. (RR58:13). Drs. Koons and Nottingham

found Appellant to be competent. (RR58:15). Drs. Crowder and Lovett

found him to be incompetent. (RR58:46). In 1996, in connection with

another proceeding, Appellant was evaluated by Drs. Pittman and

Rogers. (RR58:15-16). Dr. Pittman found him to be competent.

(RR58:16). Dr. McGarrahan testified that Dr. Rogers’ opinion “wasn’t

very clear.” (RR58:16). In 2006, there was a hearing regarding

Appellant’s case and no issues of competency were raised at that time.

(RR58:16-17).

Regarding the evidence against him in this case, Appellant told

Dr. McGarrahan that he “was fucked over 27 years ago, because they

only have he said/she said.” (RR58:18). He said it was “hearsay.”

(RR58:19). Appellant told Dr. McGarrahan that the fingerprints found

at the scene were being reviewed by the Innocence Project. (RR58:20-

21). He told her that when the fingerprints are reviewed, they will not

209 match him. (RR58:21). This “will stop everything and the Judge will

set him free immediately.” (RR58:27). He identified the then-elected

District Attorney, Craig Watkins, and said that Watkins would be

forced to drop the charges. (RR58:27). Appellant also told Dr.

McGarrahan that DNA testing “rendered him innocent.” (RR58:22).

Appellant wants a “harsher sentence” so that he will have “more

appeals.” (RR58:23). He told her that his prior sentence was “vacated”

and his case “remanded.” (RR58:24-25). He pointed out to her two

cases from the Supreme Court relevant to his case and was “somewhat”

able to describe the difference between them. (RR58:25-26).

Dr. McGarrahan testified that Appellant is not on any

psychoactive medications. (RR58:41).

Cynthia Short, an attorney who performs client advocacy, was

appointed by the trial court in 2011 to assist in Appellant’s case.

(RR58:54). Since then, she has spent sixty hours interviewing

Appellant. (RR58:55). Appellant resembles prior clients who were

found incompetent. (RR58:58). He maintains a “fixed-false belief”

about his case and that belief informs his decisions. (RR58:59). He also

did not understand that the trial judge did not have a role in the

210 reversal of his case. (RR58:61).

Short did not believe that Appellant could make rational choices

regarding his legal strategies. (RR58:63). For example, he did not want

to be examined by the State’s expert despite being told that failure to do

so would affect his lawyers’ ability to present evidence gathered on his

behalf. (RR58:63-65).

Short described Appellant as follows:

In many ways, Kenneth is very engaging. He can be very animated. He is able to engage in a conversation. He’s very, very spiritual. He’s very faithful. And we have had many long, animated, good conversations about faith.

But when we switch to talk about things that are related to the legal process, to criminal justice, then there is a different way in which he understands or attends. He becomes more rigid and flexible [sic], in terms of his understanding of the system and how to make decisions.

(RR58:65-66). She believes that Appellant would not be able to testify

in his own defense. (RR58:68). She testified that Appellant has “poor

auditory memory” and poor reasoning skills. (RR58:70).

Short testified that Appellant sustained a brain injury in 1976.

(RR58:71).

On cross-examination, Short conceded that Appellant testified in

211 his own defense after the Linwood incident in 1979, years after his

brain injury. (RR58:71-72). After his arrest for the instant offense,

Appellant spoke with a detective and gave an alibi.31 (RR58:74-75). He

also gave a TV reporter his alibi. (RR58:76). Short conceded that

Appellant, if he testified in this case, could tell the jury his version of

the evidence (that he was not present at the scene of the crime, that the

DNA exonerates him, and that there is no murder weapon). (RR58:86-

88).

The State’s Case

Dr. Kristi Compton, a clinical and forensic psychologist, was

appointed by the trial court to evaluate Appellant’s competency to stand

trial. (RR58:92-93). Dr. Compton evaluated Appellant on July 3, 2014

at the Dallas County Jail. (RR58:94-95). Over the course of three

hours, she interviewed and tested Appellant. (RR58:94; SX1-2). She

administered the Test of Memory Malingering (“TOMM”), an effort test.

(RR58:99). Appellant was required to look at a series of 50 pictures,

then identify what he saw. (RR58:99-100). A person with normal

intellect would correctly identify 45 of the 50 pictures. (RR58:99-100).

31According to Short, Appellant maintains that he did not meet with detectives. (RR58:73-76), 212 An individual with intellectual disability will generally identify 30

correctly. (RR58:101). A score of 25 or below is indicative of overt

malingering. (RR58:101). Appellant was administered two trials; he

correctly identified 24 out of 50 on the first and 26 out of 50 on the

second. (RR58:102). His scores reflected that “he was not putting forth

the full effort during the evaluation[.]” (RR58:102).

Dr. Compton also administered the Kaufman Brief Intelligence

Test. (RR58:97, 103). Appellant obtained a full-scale IQ of 40.

(RR58:104). A person taking this test gets 40 points just for showing

up. (RR58:104). Someone with a 40 IQ “would not be able to

communicate.” (RR58:105). “[I]t’s very, very unlikely [a person with a

40 IQ] would be able to communicate in full sentences or understand

much beyond that of a three- to four-year-old child.” (RR58:105).

Appellant’s score was inconsistent with his previous scores, which

“indicate a range between high 60s to low 70s.” (RR58:105).

Dr. Compton administered the CAST-MR, a test to evaluate

competency-related abilities in an individual with low intellect.

(RR58:109). In the Basic Legal Concepts section of this test, the mean

number of correct responses for individuals who are incompetent is 13.

213 (RR58:110). Appellant answered no questions correctly. (RR58:110).

On the Skills to Assist Defense Section, the mean number of correct

responses for individuals with intellectual disability is 8, with an SEM

of 3. (RR58:111). Appellant scored a 5, which is “somewhere within the

range” of those with intellectual disability. (RR58:111). When asked

for spontaneous recall of the roles of the parties (unlike the structured

question-and-answer), Appellant answered all of the questions

sufficiently. (RR58:111).

Appellant correctly described the roles of the parties: the defense

attorneys; prosecutor; and, judge.32 (RR58:106). He understands that

he has been convicted, that the upcoming trial concerns punishment,

and that there are two possible sentences. (RR58:107-08). Appellant’s

responses were inconsistent with a 40-point IQ. (RR58:107). According

to Dr. Compton, Appellant “responded to [her] rationally and logically

and processed what [she] was asking, and responded accordingly.”

(RR58:107). And, “there’s no identifiable nexus between mental illness

and [Appellant’s] ability to consistently engage with counsel.”

(RR58:109). Dr. Compton ranked Appellant’s abilities as follows: 32 Appellant indicated that he knew a judge is supposed to ensure a fair trial, but told Dr. Compton that they do not. (RR58:106). There was no evidence of a nexus between this belief and Appellant’s mental state. (RR58:107). 214 ability to disclose facts and events to counsel-below average; ability to

engage in a reasoned choice of legal strategies-below average; ability to

testify and cross-examine witnesses-below average; ability to assist

counsel with a defense-below average. (RR58:128-29).

Throughout the evaluation, Appellant was cooperative with Dr.

Compton. (RR58:113). He “related spontaneously” and made eye

contact. His hygiene was good. (RR58:113).

Dr. Compton testified that Appellant “functions in the borderline

to mental/mild mental retardation.” (RR58:114). She did not know

where in the range “because [she did] not do adaptive deficits.”

(RR58:114). She did not identify a clinical disorder such as depression,

mania, bipolar disorder, or intense anxiety. (RR58:114). She did not

observe that he was overtly psychotic or responding to hallucinations.

(RR58:114). He does, however, have subclinical paranoid delusions

about being framed and about the lack of a weapon. (RR58:115).

Someone with a clinical delusion cannot remove himself from his

delusion. (RR58:126). Someone with a subclinical delusion is capable of

recognizing other possibilities. (RR58:126). Appellant’s subclinical

delusions are not sufficient to impair his competency status.

215 (RR58:116).

In Dr. Compton’s opinion, Appellant was competent to stand trial.

(RR58:98). He has sufficient present ability to consult with his lawyers

with a reasonable degree of rational understanding and has a rational,

as well as factual understanding of the proceedings against him.

(RR58:98).

Competency

“A defendant is presumed competent to stand trial and shall be

found competent to stand trial unless proved incompetent[.]” Tex. Code

Crim. Proc. Ann. art. 46B.003(b) (West 2006). A defendant is not

competent to stand trial if he lacks:

(1) Sufficient present ability to consult with the person’s lawyer with a reasonable degree of rational understanding; or

(2) A rational as well as factual understanding of the proceedings against the person.

Id. art. 46B.003(a). Evidence relevant to the competency determination

includes whether the defendant can: (1) understand the charges against

him and the potential consequences of the pending criminal

proceedings; (2) disclose to counsel pertinent facts, events, and states of

216 mind; (3) engage in a reasoned choice of legal strategies and options; (4)

understand the adversarial nature of criminal proceedings; (5) exhibit

appropriate courtroom behavior; and, (6) testify. See Tex. Code Crim.

Proc. Ann art. 46B.024(1) (West Supp. 2015).

The burden is on the defendant to prove incompetency by a

preponderance of the evidence. Id. art. 46B.003(b).

Legal Sufficiency

A claim regarding a jury’s refusal to find a defendant incompetent

to stand trial – a determination which he has the burden to prove – is

similar to an affirmative defense. See Matlock v. State, 392 S.W.3d 662,

671 (Tex. Crim. App. 2013). An appellate court reviewing the legal

sufficiency of an affirmative defense should assay the record for a

scintilla of evidence favorable to the factfinder’s finding and disregard

all evidence to the contrary unless a reasonable factfinder could not.

Butcher v. State, 454 S.W.3d 13, 20 (Tex. Crim. App. 2015) (citing

Matlock, 392 S.W.3d at 669-70).

Factual Sufficiency

The appellate standard of review for factual sufficiency regarding

a jury’s adverse finding on competency is whether the jury’s finding of

217 competency is so against the great weight and preponderance of the

evidence so as to be manifestly unjust. Meraz v. State, 785 S.W.2d 146,

154-55 (Tex. Crim. App. 1990). The appellate court must consider all of

the relevant evidence and may not usurp the function of the jury by

substituting its judgment in place of the jury's assessment of the weight

and credibility of the witnesses’ testimony. Matlock, 392 S.W.3d at 671.

The defendant’s claim is sustained only if, after setting out the relevant

evidence and explaining precisely how the contrary evidence greatly

outweighs the evidence supporting the verdict, the court clearly states

why the verdict is so much against the great weight of the evidence as

to be manifestly unjust, conscience-shocking, or clearly biased. Id.

Appellant has failed to properly brief the issues. He recites the

evidence and the standard of review, however, he fails to offer any

argument or authority in support of his claims. See Tex. R. App. P.

38.1(i).

Regardless, the evidence is both legally and factually sufficient to

support the jury’s determination that Appellant was competent to stand

trial.

218 Issue 40: Legal Sufficiency

A review of the record reveals more than a scintilla of evidence to

support the jury’s finding. The following evidence supports the jury’s

finding of competency:

 Appellant can be engaging and animated and can participate in long conversations about faith. (RR58:65- 66).

 He understands that he has been convicted, that the upcoming trial concerns punishment, and that there are two possible sentences. (RR57:181; RR58:107-08).

 Appellant can articulate that his prior sentence was “vacated” and his case “remanded” and can cite relevant Supreme Court cases and “somewhat” describe the difference between them. (RR58:25-26).

 Appellant can relate his mental state, alleged offense, and events related to this stage of his case. (RR58:125).

 Appellant can correctly describe the roles of the parties: the defense attorneys; prosecutor; and, judge. (RR57:187; RR58:106).

 Appellant can exhibit appropriate courtroom behavior. (RR57:184).

 If called to testify, Appellant could respond verbally to questioning. (RR57:184). He could tell the jury his version of the evidence, including his claim that he was not present at the scene of the crime, that there is no murder weapon, and that the DNA shows he is innocent. (RR58:86-88).

219  According to Dr. Compton, “there’s no identifiable nexus between mental illness and [Appellant’s] ability to consistently engage with counsel.” (RR58:109).

 Dr. Compton testified that Appellant “functions in the borderline to mental/mild mental retardation.” (RR58:114). She did not know where in the range, “because [she did] not do adaptive deficits.” (RR58:114).

 Dr. Compton identified no clinical disorder such as depression, mania, bipolar disorder, or intense anxiety. (RR58:114). She did not observe that he was overtly psychotic or responding to hallucinations. (RR58:114).

 Appellant is not schizophrenic and does not respond to outside voices or voices in his head. (RR58:6).

 Appellant is not on any psychoactive medications. (RR58:41).

In short, the jury had substantial evidence from which it could

have concluded that Appellant had sufficient present ability to consult

with his lawyers with a reasonable degree of rational understanding

and that he had a rational as well as factual understanding of the

proceedings against him. See Tex. Code Crim. Proc. Ann. art.

46B.003(a). Appellant did not conclusively prove that he was

incompetent. The jury was entitled to believe Dr. Compton’s testimony

that Appellant was competent to stand trial. (RR58:98).

220 Issue 40 should be overruled.

Issue 41: Factual Sufficiency

The evidence is factually sufficient to support the jury’s

determination that Appellant was competent to stand trial. The

following evidence, when considered in a neutral light, proves that the

jury’s finding that Appellant was competent to stand trial was not

against the great weight and preponderance of the evidence:

 Dr. McGarrahan testified that Appellant was not competent to stand trial. (RR57:171-72).

 Dr. Compton testified that Appellant was competent to stand trial. (RR58:98). He had sufficient present ability to consult with his lawyers with a reasonable degree of rational understanding and had a rational, as well as factual understanding of the proceedings against him. (RR58:98).

 Dr. McGarrahan testified that Appellant had a factual (but not rational) understanding of the proceedings against him. (RR57:181). He understood that his prior sentence was “vacated” and his case “remanded.” (RR58:24-25). In the upcoming trial, he wants a “harsher sentence” so that he will have “more appeals.” (RR58:23).

 Dr. Compton testified that Appellant understands that he has been convicted, that the upcoming trial concerns punishment, and that there are two possible sentences. (RR58:107-08).

 Appellant understands the adversarial nature of the

221 proceedings. (RR57:184). He understands the roles of the parties: the defense attorneys; prosecutor; and, judge. (RR58:106).

 Regarding the evidence against him, Appellant told Dr. McGarrahan that the State “only [has] he said/she said.” (RR58:18). He told her that the fingerprints at the scene will not match him and the DNA testing “render[s] him innocent.” (RR58:20-22).

 Dr. McGarrahan testified that Appellant is not able to rationally assist his attorneys. (RR57:172). He persists in his belief he cannot be convicted if the State does not have the murder weapon. (RR57:172, 175).

 Short testified that that Appellant’s “fixed-false belief” informs his decisions regarding the case. (RR58:59).

 Short did not believe that Appellant could make rational choices regarding his legal strategies. (RR58:63). For example, he did not want to be examined by the State’s expert even though it would affect his lawyers’ ability to present evidence gathered on his behalf. (RR58:63-65).).

 Dr. McGarrahan testified that if Appellant were to testify, he could respond to questions and verbalize his responses, but would have difficulty doing so in a rational, logical manner. (RR57:184).

 Short testified that Appellant would not be able to testify in his own defense but later conceded that if he did, he could tell the jury his version of the evidence (that he was not present at the scene of the crime, that the DNA exonerates him, and that there is no murder weapon). (RR58:68, 86-88).

 Dr. Compton testified that Appellant “responded to [her]

222 rationally and logically and processed what [she] was asking, and responded accordingly.” (RR58:107).

 According to Dr. Compton, there is “there’s no identifiable nexus between mental illness and [Appellant’s] ability to consistently engage with counsel.” (RR58:109). “[E]ven a mentally ill defendant who resists cooperating with his counsel may nevertheless be found competent if the manifestations of his particular mental illness are not shown to be the engine of his obstinacy.” Turner v. State, 422 S.W.3d 676, 691 (Tex. Crim. App. 2013).

 Appellant can exhibit appropriate courtroom behavior. (RR57:184).

 When tested by Dr. McGarrahan, Appellant put forth good effort and tried to present himself in a positive light. (RR57:174). Dr. McGarrahan’s testing showed a full scale IQ of 71. (RR57:172).

 When tested by Dr. Compton, Appellant did not put forth good effort. (RR58:102). Her IQ testing showed a full scale IQ of 40, which is inconsistent with his prior scores. Additionally, given the fact that someone with a 40-point IQ would not be able to communicate, Appellant’s 40- point IQ score was inconsistent with the fact that he was able to communicate with her. (RR58:104-05). On the CAST-MR, Appellant answered no questions correctly in the Basic Legal Concepts section. (RR58:110). On the Skills to Assist Defense Section, he scored within the range of those with intellectual disability. (RR58:111).

 Dr. McGarrahan testified that Appellant is intellectually disabled. (RR57:185).

 Dr. Compton testified that Appellant “functions in the

223 borderline to mental/mild mental retardation.” (RR58:114). She did not know where in the range, “because [she did] not do adaptive deficits.” (RR58:114).

 Dr. McGarrahan testified that Appellant suffers from a delusional disorder, but is not schizophrenic and does not respond to outside voices or voices in his head. (RR57:185; RR58:6).

 Dr. Compton did not identify a clinical disorder such as depression, mania, bipolar disorder, or intense anxiety. (RR58:114). She did not observe that he was overtly psychotic or responding to hallucinations. (RR58:114). He has subclinical paranoid delusions but they are not sufficient to impair his competency status. (RR58:116).

 Appellant is not on any psychoactive medications. (RR58:41).

The jury was faced with conflicting opinions from two

psychologists. On the one hand was Dr. McGarrahan, the defense

expert involved in the case for at least two years, who testified to her

opinion that Appellant was incompetent. (RR57:166-67, 171-72). On

the other hand was Dr. Compton, the trial court’s neutral expert

appointed only days before the competency trial, who testified to her

opinion that Appellant was competent. (RR58:93-95, 98).

The jury was entitled to credit Dr. Compton’s testimony that

Appellant was competent to stand trial. Dr. Compton was a neutral

224 witness who offered specific testimony regarding her testing and

evaluation of Appellant and her opinion regarding his competency. Dr.

Compton testified that Appellant’s belief in his innocence was “not

sufficient to impair rational communication” with counsel. (RR58:108-

09). She testified that Appellant understood the charges against him;

that he was already convicted; that the upcoming trial concerned

punishment only; and the potential punishments. (RR58:107-08, 136).

See Morris v. State, 301 S.W.3d 281, 291 (Tex. Crim. App. 2009)

(agreeing with lower court holding that Morris’ jury “was entitled to

credit the opinion testimony of the State’s experts that appellant was

competent under art. 46B.003(a).”); see also Williams v. State, 191

S.W.3d 242, 248 (Tex. App.—Austin 2006, no pet.) (stating that “[t]he

jury is the judge of the credibility of the witnesses at the competency

hearing and the weight to give to the testimony.”). The fact that some

evidence was presented that could support a finding of incompetency

does not render the evidence insufficient. See Butcher, 454 S.W.3d at

20.

On appeal, Appellant suggests that the reason he performed

poorly on Dr. Compton’s tests was because he did not want to be found

225 disabled and because he thought the evaluation was meant to belittle

and shame him. (Appellant’s Brief p. 118). Appellant’s argument lacks

merit. If, as Appellant suggests, he did not want to be found

intellectually disabled, it would stand to reason that his scores would be

higher, reflecting increased effort. Instead, on Dr. Compton’s IQ test,

Appellant’s score was so low that it was not only inconsistent with his

prior IQ testing, but also inconsistent with the level that he was able to

communicate with Dr. Compton. (RR58:104-05). On one trial of Dr.

Compton’s malingering test, Appellant’s score was so low that it was

indicative of overt malingering. (RR58:101-02). In any event, Appellant

fails to explain how his lack of participation proves that he was

incompetent to stand trial.

Appellant suggests that Dr. Compton’s opinion was not reliable

because her appointment and evaluation took place only days before

trial; therefore, she “did not have the time to fully research [Appellant’s]

childhood, his brain injury, or his prison history.” (Appellant’s Brief

p.119). Appellant does not specify, however, how further research into

the identified areas would have shed light on his competency to stand

226 Given all of the testimony and evidence presented, the jury could

have weighed the conflicting evidence and reasonably found that

Appellant was sufficiently capable of consulting with his attorneys and

with a reasonable degree of rational understanding and that he had a

rational as well as factual understanding of the proceedings against

him. The jury's determination that Appellant was competent to stand

trial was not so against the great weight and preponderance of the

evidence as to be manifestly unjust.

Issues 40 and 41 should be overruled.

STATE’S RESPONSE TO ISSUE NO. 42: THE TRIAL COURT PROPERLY OVERRULED APPELLANT’S OBJECTION TO DR. PRICE’S TESTIMONY THAT APPELLANT EXHIBITS TRAITS CONSISTENT WITH ANTI-SOCIAL PERSONALITY DISORDER.

Appellant contends that, during the punishment phase of trial,

the trial court erred in overruling his objection to Dr. Price’s proffered

testimony that Appellant exhibits traits consistent with anti-social

personality disorder. In support of his contention, Appellant points to

the fact that Dr. Price did not diagnose Appellant with this disorder.

Appellant’s contentions lack merit and should be overruled.

227 Pertinent Facts

During a hearing outside the presence of the jury in the

punishment phase of trial, Dr. Price testified that he planned to testify

before the jury that Appellant exhibits traits consistent with anti-social

personality disorder. (RR69:8). Dr. Price testified, however, that he

would not diagnose Appellant with anti-social personality disorder

because he is not aware of any evidence of a conduct disorder prior to

the age of 15. (RR69:8). At the conclusion of the hearing, Appellant

objected that Dr. Price’s testimony would be inadmissible under Rule

403. (RR69:11). Defense counsel objected as follows:

Your Honor, I do have - - I will object to him testifying in front of the jury about him having the traits of someone with anti-social personality disorder, since he can’t make that diagnosis. I think, because he’s an expert, he gives that inference to the jury. I think it’s dangerous testimony put in front of them, when he can’t even make the diagnosis himself.

So I would object to him testifying that he has those traits, without being able to make the diagnosis. Even if the Court thinks it’s relevant somehow, I just think that the prejudicial effect outweighs the probative value, in the way he’s going to present it.

228 (RR69:11). The trial court overruled Appellant’s objection. (RR69:12-

13).

Before the jury, Dr. Price testified that anti-social personality

disorder is not a mental disorder, but a long-term personality disorder.

(RR69:66-67). An individual with this disorder is “kind of against

society. It’s an individual who breaks the rules, breaks the law, [and]

doesn’t accept responsibility for it.” (RR69:67). One requirement for a

diagnosis of anti-social personality disorder is evidence of a conduct

disorder prior to the age of 15. (RR69:67-68). A child with a conduct

disorder “gets in trouble all the time, skips school, gets in trouble with

the law, sets fires, is aggressive towards others, et cetera.” (RR69:68).

Based on his review of the case and his interaction with Appellant, Dr.

Price testified that Appellant “does have traits and features consistent

with this anti-social personality.” (RR69:68). Appellant renewed his

prior objection and it was overruled. (RR69:68). Dr. Price then briefly

explained the basis for his opinion. (RR69:69-72). Importantly, Dr.

Price testified that he lacked evidence regarding one of the traits

necessary for a diagnosis of anti-social personality disorder. (RR69:71).

229 Dr. Price lacked evidence that the traits began prior to 15 years of age.

(RR69:71-72).

During cross-examination, defense counsel asked Dr. Price about

his opinion that Appellant exhibits traits consistent with anti-social

personality disorder. (RR69:87, 90). He pointed out on at least two

separate occasions that Dr. Price could not diagnose Appellant with the

disorder. (RR69:87, 90).

An appellate court reviews a trial court’s ruling on the

admissibility of evidence under an abuse of discretion standard of

review. See Weatherred, 15 S.W.3d at 542. The trial court’s ruling

should be upheld if it is within the zone of reasonable disagreement. Id.

And, it will be upheld if it is correct on any theory of law applicable to

the case. Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990).

Expert testimony

Rule 702 authorizes the admission of testimony from a witness

possessing scientific, technical, or other specialized knowledge if the

witness is qualified as an expert by knowledge, skill, experience,

230 training, or education and his testimony will assist the fact finder to

understand the evidence or to determine a fact in issue. Tex. R. Evid.

702.

Rule 403

Under Rule 403, all relevant evidence is admissible unless “its

probative value is substantially outweighed by a danger of one or more

of the following: unfair prejudice, confusing the issues, misleading the

jury, undue delay, or needlessly presenting cumulative evidence.” Tex.

R. Evid. 403. All probative evidence proffered by an adverse party will

be prejudicial, but only unfair prejudice warrants exclusion of the

evidence. See Montgomery v. State, 810 S.W.2d 372, 378 (Tex. Crim.

App. 1990) (citing United States v. Figueroa, 618 F.2d 934, 943 (2nd Cir.

1980). A reviewing court’s consideration of this issue includes, but is

not limited to: (1) how probative the evidence is; (2) the potential of the

evidence to impress the jury in some irrational, but nevertheless

indelible way; (3) the time needed to develop the evidence; and (4) the

proponent’s need for the evidence. Shuffield v. State, 189 S.W.3d 782,

787 (Tex. Crim. App. 2006).

231 Analysis

Rule 702

As a threshold matter, it is unclear whether, at trial, Appellant

intended to object to Dr. Price’s testimony under Rule 702. Defense

counsel’s statement that “I would object to him testifying that he has

those traits, without being able to make the diagnosis” is insufficient to

alert the trial court that Dr. Price was unqualified or that his opinion

was in some way irrelevant or unreliable. As a result, he has not

preserved this argument for review. See Tex. R. App. P. 33.1(a).

On appeal, Appellant states that “the testimony was beyond the

expert’s discipline to opine on the subject[.]” (Appellant’s Brief p.121).

He cites Kelly v. State, 824 S.W.2d 568 (Tex. Crim. App. 1992), Nenno v.

State, 970 S.W.2d 549 (Tex. Crim. App. 1998), and Texas Rule of

Evidence 702, but offers no further argument or analysis. This Court is

not required to make Appellant’s case for him. Garcia, 887 S.W.2d at

882 (stating that a reviewing court “will not brief appellant’s case for

him”). To the extent Appellant is suggesting that a psychologist is

unable to testify that, based on his review of documents, an individual

is symptomatic of a specific condition, he points to no authority in

232 support of his claims. He points to no authority suggesting that such

testimony is prohibited in that profession.

In any event, any complaint Appellant had regarding Dr. Price’s

qualifications was waived at the time of trial. During the sub rosa

hearing prior to Dr. Price’s testimony before the jury, the following

exchange occurred:

[State]: Judge, I believe, as we have done with Dr. McGarrahan, I believe Dr. Hom and Dr. Crowder, I don’t anticipate objections from Defense that Dr. Price is an expert who is qualified to give certain opinions. I believe that’s the agreement that we have from Mr. Sanchez.

[Sanchez]: That’s correct, Your Honor.

[Trial Court]: Very well.

[State]: So this will be just me - - I will tender him as an expert at this point.

[State]: And then we’ll ask what his opinions are, and we’ll go from there.

(RR68:241-42). The parties agreed that Dr. Price was, in fact, an expert

and the only issue to be addressed was the basis for his opinions. See

Tex. R. Evid. 705(b) (stating that an adverse party is entitled to

233 question an expert outside the presence of the jury regarding the facts

or data underlying the expert’s opinion). Appellant did not challenge

Dr. Price’s qualifications at the time of trial and he cannot do so for the

first time on appeal. Tex. R. App. P. 33.1(a).

Appellant argues that Dr. Price’s testimony was “misleading and

designed to give the jury the impression that Appellant had a diagnosed

anti-social personality disorder[.]” (Appellant’s Brief pp.120-21). This

is incorrect. In fact, Dr. Price was upfront about the limitations of his

testimony. He testified that Appellant “does have traits and features

consistent with” anti-social personality disorder, but he lacked evidence

of one of the features required to render a diagnosis: evidence that the

symptoms began before 15 years of age. (RR69:68, 71-72). On cross-

examination, he agreed with defense counsel on two separate occasions

that he could not diagnose Appellant with anti-social personality

disorder. (RR69:87, 90). The jury was not misled in any way.

At trial, Appellant objected to Dr. Price’s testimony under Rule

403. Defense counsel stated “that the prejudicial effect outweighs the

probative value, in the way he’s going to present it.” (RR69:11). In his

234 brief on appeal, Appellant states that “any probative value was

outweighed by the prejudicial effect.” (Appellant’s Brief p.121). As

above, he offers no argument or analysis on this issue; therefore,

nothing is presented for this Court’s review. See Tex. R. App. P. 38.1(i)

(requiring that a brief contain a clear and concise argument for the

contentions made, with appropriate citations to authorities and to the

record); see, e.g., Walder v. State, 85 S.W.3d 824, 827 (Tex. App.—Waco

2002, no pet.) (setting forth the elements necessary to satisfy the

mandatory requirement of a “clear and concise argument” pursuant to

Rule 38.1).

Regardless, the probative value of Dr. Price’s testimony was not

substantially outweighed by the danger of unfair prejudice. First, Dr.

Price’s testimony was relevant to rebut Appellant’s claim that he is

intellectually disabled. His testimony was presented during the State’s

case-in-rebuttal to offer an alternate explanation for Dr. McGarrahan’s

testimony regarding Appellant’s symptoms. As such, his testimony was

highly probative to rebut the evidence that the defense presented.

Dr. Price’s testimony was also relevant to the jury’s

determination of Appellant’s future dangerousness. See Griffith v.

235 State, 983 S.W.2d 282, 288 (Tex. Crim. App. 1998) (potential of future

dangerousness is a question of fact which the jury must answer and

testimony from mental health experts is relevant to future

dangerousness special issue); see Powell v. State, 898 S.W.2d 821, 830

(Tex. Crim. App. 1994) (trial court has wide discretion in admitting

evidence relevant to the jury’s determination of a capital murder

defendant’s death-worthiness).

Second, there was no chance that the evidence would impress

the jury in some irrational and indelible way. While Dr. Price testified

that Appellant exhibits traits consistent with antisocial personality

disorder, he was clear that he could not diagnose Appellant with the

disorder. (RR69: 68, 71-72, 90).

Third, Dr. Price’s testimony regarding antisocial personality

disorder, which was presented during the State’s case-in-rebuttal, was

extremely brief. The State’s questioning on this subject consumed less

than seven pages of transcript. (RR69:16, 66-72).

Finally, the State needed Dr. Price’s testimony to rebut Dr.

McGarrahan’s testimony regarding Appellant’s alleged adaptive

236 deficits. Dr. Price’s testimony offered an alternate explanation for

what Dr. McGarrahan testified were Appellant’s adaptive deficits.

Even if the trial court erred in overruling Appellant’s objections

(which the State does not concede), any alleged error is 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 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 ruling did not have a substantial and injurious effect or

influence on the jury. Dr. Price testified that someone with antisocial

personality disorder “breaks the rules, breaks the law, doesn’t accept

responsibility for it.” (RR69:67). That Appellant was one who breaks

rules and laws was already well known to the jury. By the time Dr.

237 Price testified, the jury already knew that Appellant broke into the

Finch home, stabbed Mildred and Fred to death, and then stole

numerous items from Fred’s wardrobe. The jury already knew that

Appellant had stabbed Linwood in the head with a screwdriver. The

jury already knew about Appellant’s misconduct in prison. Dr. Price’s

testimony had no negative impact on Appellant. Any alleged error did

not affect Appellant’s substantial rights. See Tex. R. App. P. 44.2(b).

Issues 42 should be overruled.

STATE’S RESPONSE TO ISSUE 43: DR. PRICE DID NOT TESTIFY BEFORE THE JURY REGARDING APPELLANT’S REMORSE.

Appellant contends that the trial court erred in allowing Dr.

Price to testify regarding his lack of remorse. Appellant’s contentions

lack merit.

During a sub rosa hearing, Dr. Price was asked for the basis of

his opinion that Appellant exhibits traits of anti-social personality

disorder. (RR69:7). He responded as follows:

Criminal history, his history; especially, prior to 2010, and as far back as 1979, which indicates a repeated pattern of violation of the law; a lack of remorse for those incidents; deceitfulness by repeated lying through the record, both in

238 response to the offenses and in talking to individuals in prison and others that have evaluated him; at least, a history or irritability and aggressiveness.

(RR69:8). At the conclusion of the hearing, Appellant objected to this

testimony and complained that it would “violate the Defendant’s Fifth

Amendment right[.]” (RR69:13). The objection was overruled.

(RR69:13).

A reference to a defendant’s lack of remorse is tantamount to a

comment on his failure to testify. Howard v. State, 153 S.W.3d 382, 385

(Tex. Crim. App. 2004). The law does not prohibit such a reference

where it is supported by record evidence. Id. Consequently, the State is

not barred from presenting evidence that the accused has demonstrated

by his words or actions a lack of remorse. See, e.g., id. (prosecutor’s

comment on lack of remorse supported by accused’s statement to officer

that he had no remorse for crime).

Appellant has failed to properly brief this issue. See Tex. R. App.

P. 38.1(i). Importantly, Appellant does not specify where in Dr. Price’s

testimony before the jury that he refers to Appellant’s lack of remorse.

239 The State is unable to locate any exchange before the jury wherein Dr.

Price refers to Appellant’s remorse. Additionally, beyond the statement

that the unspecified error “violated Appellant’s right to remain silent

and is of constitutional error dimension [and] denied Appellant a fair

punishment hearing,” Appellant offers no argument or analysis. He

does not explain how Dr. Price’s testimony violated his right to remain

silent. This Court is not required to make Appellant’s case for him.

Garcia, 887 S.W.2d at 882.

Issue 43 should be overruled.

STATE’S RESPONSE TO ISSUE 44: THE TRIAL COURT DID NOT ERR IN ADMITTING A SILHOUETTE OF A KNIFE AS A DEMONSTRATIVE AID.

Appellant contends that the trial court erred in overruling his

objection to State’s Exhibit #206, a PowerPoint presentation, which

depicts silhouettes of a single edged blade, because it was speculative.

Appellant points to the fact that the purported murder weapon was

never introduced into evidence. Appellant’s contentions lack merit.

State’s Exhibit #206 is a PowerPoint presentation that the State

and the medical examiner, Dr. Edward McDonough, compiled to assist

240 the doctor in his testimony regarding the autopsy on Mildred. It was

admitted over Appellant’s objection for record purposes only. (RR61:49).

Appellant’s objection related to two slides of the exhibit, slides 2 and 5.

Slide 2, entitled, “Stab Wound – Single Edge Blade Characteristics,”

contains a computer generated image of a single edged knife next to

State’s Exhibit #63, a photograph of one of Mildred’s stab wounds.

(SX206). Slide 5, entitled, “Stab Wound Depth Analysis,” depicts three

silhouettes that correspond to wounds of various depths. (SX206).

In a hearing outside the presence of the jury, Appellant objected

to State’s Exhibit #206.33 (RR69:11). He stated the following:

One thing further, Your Honor. I think the State, as part of their presentation with the medical examiner, will have a PowerPoint which shows a silhouette of a knife next to the pictures. I would object to that as speculative. Especially since there is no knife that’s ever been introduced into evidence.

For example, this (indicating). I think it would be misleading to the jury that that’s the way the knife looked, when there’s no evidence in any way that there’s - - a knife like that was ever used.

33On appeal, Appellant refers to State’s Exhibit #205. This exhibit is a penitentiary pack. (SX205). The State believes Appellant is actually referring to State’s Exhibit #206, which includes photographs from Mildred’s autopsy along with a silhouette of a single edge blade. (SX206). 241 (RR61:11). The State responded that it was offering the exhibit purely

as a demonstrative aid. (RR61:11). “The purpose of this picture is to

show there’s a sharp edge and dull edge and how a knife like that might

be - - is consistent with causing a wound like we see in State’s Exhibit

Number 63[.]” (RR61:11). The photograph will “show the jury why it is

that this medical examiner will give the opinion that this is consistent

with a single-edge knife.” (RR61:12). The trial court overruled

Appellant’s objection. (RR61:12). The exhibit was subsequently

admitted and utilized by him to explain his autopsy findings.

In particular, Dr. McDonough testified that Mildred “had

extensive sharp-force trauma over almost all the surfaces of her body.”

(RR61:54). He explained that as part of an autopsy, the medical

examiner examines sharp-force wounds in an effort to determine “what

the weapon might be, possibly the length of the weapon, the width of

the blade[.]” (RR61:56-57). The examiner looks at the features of the

wound, including the edges, where “[t]here might be a sharp edge and

blunt edge.” (RR61:56). The features of the wound may suggest the

type of knife used. (RR61:56, 60-61). In the instant case, he opined

that Mildred’s and Fred’s wounds were consistent with a single edged

242 blade. (RR61:58). Dr. McDonough acknowledged, however, that he

was never presented with a knife to examine or compare to Mildred’s

wounds. (RR61:57).

An appellate court reviews a trial court’s admission of

demonstrative evidence for an abuse of discretion. See Simmons v.

State, 622 S.W.2d 111, 113 (Tex. Crim. App. 1981).

Demonstrative evidence is evidence admitted to serve as a visual

aid or illustration of a witness’ testimony. Baker v. State, 177 S.W.3d

113, 123 (Tex. App.—Houston [1st Dist.] 2005, no pet.). It is admissible

if it tends to solve some issue in the case and is relevant to the cause.

See Simmons, 622 S.W.2d at 113. An item of demonstrative evidence

must be properly identified by showing that the item in question is

what its proponent claims as opposed to any idea of speculation,

conjecture, or presumption of what the exhibit represents. Torres v.

State, 116 S.W.3d 208, 213 (Tex. App.—El Paso 2003, no pet.) (citing

Vollbaum v. State, 833 S.W.2d 652, 657 (Tex. App.—Waco 1992, pet.

ref'd)).

243 Analysis

The trial court did not err is overruling Appellant’s objection to

the State’s use of a computer-generated silhouette of a generic single

edged knife as a demonstrative aid during the medical examiner’s

testimony. As an initial matter, the silhouette of the knife was properly

identified. Torres, 116 S.W.3d at 213. Dr. McDonough agreed that the

slide entitled “Stab Wound – Single Edge Blade Characteristics”

contained a diagram of a knife. (RR61:57). As to the slide entitled

“Stab Wound Depth Analysis,” he agreed that it explained “different

depths wounds [sic]” that a single knife may create. (RR61:60).

The silhouette of the knife was relevant as it helped the medical

examiner to explain the nature and cause of the injuries that resulted

in Mildred’s death. The silhouette assisted the jury in understanding

Dr. McDonough’s testimony regarding Mildred’s wounds. Contrary to

the statements in Appellant’s brief, the silhouette was not speculative.

The silhouette on Slide 2 depicted a single-edged knife, the same type of

knife that Dr. McDonough believed caused Mildred’s wounds.

(RR61:57-58). The silhouette on Slide 5 showed that a single knife may

cause wounds of different depths. (RR61:60).

244 Importantly, the State did not present the silhouette of the knife

as an image of the weapon that was actually used in the instant offense.

Indeed, the State clarified with Dr. McDonough the fact that he had

never “seen a knife [and had] never been presented a knife to examine”

in connection with Mildred’s autopsy. (RR61:57). On cross-examination,

Dr. McDonough agreed that although he had testified to what the knife

may look like, he could not testify to a scientific certainty what the knife

looked like or how long it was. (RR61:90-91). See Simmons, 622 S.W.2d

at 113-14 (finding no abuse of discretion in overruling Simmons’

objection to the State’s display to the jury of a “similar-type [of] knife”

as that used during the commission of the offense).

On appeal, Appellant argues that the silhouette of the knife was

also inadmissible under Rule 403. (Appellant’s Brief pp.122-23). He did

not object on this basis at trial; he only objected on the basis of

speculation. (RR61:11). As such, Appellant failed to preserve his Rule

403 objection for this Court’s review. See Guevara, 97 S.W.3d at 583.

Regardless, the probative value of the silhouette was not

substantially outweighed by the danger of unfair prejudice. See Tex. R.

Evid. 403. As stated, the silhouette was probative of the nature of the

245 weapon used to inflict Mildred’s fatal injuries. The silhouette was used

to demonstrate the type of blade that may have inflicted Mildred’s

wounds and to demonstrate how a single blade could create different

wounds of varying depth. The potential for the silhouette to impress

the jury in an irrational way was low given Dr. McDonough’s

acknowledgement that he was never presented with a particular knife

to examine or compare with Mildred’s wounds and that he could not

testify to a scientific certainty what the murder weapon actually looked

like. At a minimum, the trial court’s decision falls within the zone of

reasonable disagreement. See Weatherred, 15 S.W.3d at 542.

Even if this Court finds that the trial court erred in allowing the

State to use the silhouette as a demonstrative aid, any alleged error is

harmless as it did not have a substantial and injurious effect or

influence on the jury. The complained-of exhibit was offered during

testimony by the medical examiner during the punishment phase of

trial. The fact that Appellant stabbed Mildred to death was previously

determined by another jury. Dr. McDonough simply described for the

new jury Mildred’s cause of death and the nature and extent of her

injuries. The complained-of silhouette was used during his testimony

246 simply to help the jury understand the type of weapon that caused her

wounds. There was no attempt to mislead the jury to believe that the

silhouette was an exact replica of the actual murder weapon. And there

was no dispute that a sharp, blade-like object was used or the lethal

nature of the wounds it inflicted. Accordingly, the silhouette of the

knife did not affect Appellant’s substantial rights. See Tex. R. App. P.

44.2(b).

Issue 44 should be overruled.

STATE’S RESPONSE TO ISSUE 45: THE TRIAL COURT PROPERLY ADMITTED THE AUTOPSY PHOTOGRAPHS. ALTERNATIVELY, ANY ERROR IS HARMLESS.

Appellant contends that the trial court should have excluded all

of the autopsy photographs offered by the State under evidence rule

403. Appellant’s contention appears to be that the probative value of

the photographs was outweighed by the danger of unfair prejudice.

Appellant’s contentions lack merit.

In a sub rosa hearing, Appellant objected under Rule 403 to

autopsy photographs of Mildred and Fred “being shown to the jury.”

(RR61:8-9). The color photographs were the exact photographs

admitted in the guilt phase of Appellant’s prior 1986 trial. The trial 247 court had rejected a rule 403 objection to their admission back then,

finding that the probative value was not outweighed by the danger of

any unfair prejudice. (RR61:9). The State re-offered all twenty-four

previously admitted autopsy photographs - - fourteen from Mildred’s

autopsy and ten from Fred’s autopsy. (RR61:9-10). The prosecutor

stated:

They are grouped in a manner that is consistent with their grouping of the injuries that show the injuries, the knife wounds, the point of entry, why those points of entry can be seen as being consistent with a single-edge knife. [The medical examiner] will talk about the location of those injuries and how - - especially with Mildred - - those might relate to the fractured ribs that she sustained.

There’s probably, I think, 25 [sic] pictures. But that’s because there were a lot of stab wounds that were inflicted upon these two folks.

(RR61:10). Importantly, the 24 photographs offered were only “a small

- - a portion of the total pictures that were taken.” (RR61:11).

Appellant’s objection was overruled. (RR61:11). The

photographs were admitted during Dr. McDonough’s testimony.

(RR61:48-49).

248 Analysis

The trial court did not err in admitting the 24 autopsy

photographs over Appellant’s 403 objection. All 24 photographs were

highly probative of Mildred and Fred’s injuries; they show the external

injuries - - stab wounds, cuts, contusions - - that Mildred and Fred

suffered as a result of the instant offense. The photographs were used

by Dr. McDonough to explain those injuries. (RR61:57, 61-65, 67-74,

78-83). This Court has held that a trial court does not abuse its

discretion in admitting autopsy photographs over a Rule 403 objection

where they help to explain the medical examiner’s testimony describing

the victim’s various wounds for which appellant is responsible. See

Escamilla, 143 S.W.3d at 826. Given the nature and extent of Mildred

and Fred’s injuries – the sheer volume of stab wounds – the

photographs were especially important to help the jury understand the

brutal nature of the offense.

Furthermore, the 24 complained-of photographs are not unfairly

prejudicial under Rule 403. The photographs are not repetitious; each

depicts a different area of injury:

249  State’s Exhibit #76, the autopsy identification photograph, is a close up of Mildred’s face. (RR61:63-64; SX76).

 State’s Exhibit #79 is a close-up of a large cut to Mildred’s scalp. (RR61:64-65; SX79).

 State’s Exhibit #80 is a close-up of a three-inch cut on the back of Mildred’s head. (RR61:65; SX80).

 State’s Exhibit #73 is a close up of defensive wounds on Mildred’s left hand. (RR61:72; SX73).

 State’s Exhibit #74 is a close-up of a large stab wound to Mildred’s lower right arm. (RR61:72-74; SX74).

 State’s Exhibit #81 is a close-up of several stab wounds to Mildred’s left arm. (RR61:71-72; SX81).

 State’s Exhibit #75 shows a large stab wound to Mildred’s face and shows multiple defects to her shirt. (RR61:62-63; SX75).

 State’s Exhibit #78 is an overhead view of Mildred’s upper body and shows the curlers in her hair, her Rolex watch, and the defects to her shirt. (RR61:61- 62; SX78).

 State’s Exhibit #77 is an overhead view of Mildred’s lower body and shows two stab wounds to her belly. (RR61:62; SX77).

 State’s Exhibit #63 is a close-up of a stab to Mildred’s body. (RR61:57-58; SX63).

250  State’s Exhibit #65 is a close-up of the right side of Fred’s face and shows a large stab wound to the temple area. (RR61:81-81; SX65).

 State’s Exhibit #58 is an overhead view of the upper portion of Fred’s body from his head to his knees. (RR61:78; SX58). He is wearing a shirt, but nothing below his waist. His genital area is covered by a black box.

 State’s Exhibit #64 is a close-up of Fred’s left shoulder area and shows multiple stab wounds to his chest, shoulder and arm. (RR61:81-82; SX64).

 State’s Exhibit #60 is a close-up of blood droplets on the back of Fred’s left upper leg. (RR61:82; SX60).

 State’s Exhibit #61 is a close-up of cuts to Fred’s buttocks. (RR61:83; SX61).

 State’s Exhibit #68 is a close-up of a fracture or tear of a fingernail on Fred’s right hand. (RR61:83; SX68).

In some of the photographs, Mildred and Fred are unclothed:

 State’s Exhibit #71 shows Mildred’s unclothed body from her breasts to her abdomen and shows a series of stab wounds to Mildred’s abdomen and her left side. (RR61:71; SX71).

 State’s Exhibit #82 is an overhead view of the front of Mildred’s unclothed body, from her head to just above her knees and shows multiple stab wounds all over her body. (RR61:67-68; SX82).

251  State’s Exhibit #83 is a closer-in view of the right upper side of Mildred’s body and shows groups of stab wounds to her right arm and right side. (RR61:69-71; SX83).

 State’s Exhibit #72 is an overhead view of the back of Mildred’s body and shows multiple stab wounds to her shoulder, arm, and hip area. (RR61:68-69; SX72).

 State’s Exhibit #62 is a closer-in view of Fred’s chest and shows multiple stab wounds to that area. (RR61:81; SX62).

 State’s Exhibit #59 is a closer-in view of the left side of Fred’s body and shows a group of cuts to that area. (RR61:82; SX59).

 State’s Exhibit #66 is an overhead view of the upper portion of the front of Fred’s body, from his head to his knees and shows seven stab wounds. (RR61:79- 80; SX66).

 State’s Exhibit #67 is an overhead view of the back of Fred’s upper body and shows eleven stab wounds. (RR61:80; SX67).

A photograph, which is used to describe the complainant’s injuries, is

not inadmissible simply because it depicts an unclothed body. See

Santellan v. State, 939 S.W.2d 155, 172-73 (Tex. Crim. App. 1997)

(finding no error in admitting photographs of victim’s naked body

during autopsy where the photographs show damage done to victim’s

252 body by Santellan and no damage attributable to the autopsy is

apparent).

Appellant complains that the prosecutor and Dr. McDonough

commented that the photographs were “gruesome.” (RR61:61). The

photographs are gruesome, but they depict nothing more than the

injuries that Appellant inflicted on Mildred and Fred. See Ladd, 3

S.W.3d at 568 (holding that the trial court did not abuse its discretion

in admitting photographs of the victim’s body, including autopsy photos,

because the photographs depicted the manner of death and were no

more gruesome than the crime). Notably, Dr. McDonough’s testimony

regarding the photographs consisted of only twenty pages in an

otherwise extremely lengthy record. (RR61:57, 61-65, 67-74, 78-83).

The trial court did not abuse its discretion when it admitted the

24 autopsy photographs. At a minimum, its decision falls within the

zone of reasonable disagreement. See Weatherred, 15 S.W.3d at 542.

Any Alleged Error is Harmless

Even if the trial court erred in admitting the 24 complained-of

photographs, Appellant was not harmed. As previously argued, there

was overwhelming evidence supporting the jury’s verdict on

253 punishment regardless of the photographs of Mildred and Fred. Even

without the photographs, the jury heard evidence that Mildred was

stabbed 90 times. The jury heard evidence of Appellant’s history of

violence both in and out of prison. Accordingly, taking the entire record

into consideration, it is clear that any alleged error in admitting the

complained-of photographs clearly did not affect Appellant’s substantial

rights and should be disregarded. See Tex. R. App. P. 44.2(b).

Issues 45 should be overruled.

STATE’S RESPONSE TO ISSUE 46: THE TRIAL COURT DID NOT ERR IN OVERRULING APPELLANT’S OBJECTION TO THE TESTIMONY OF JAMES BELT, SR.

Appellant contends that the trial court should have excluded the

testimony of Mildred and Fred’s son-in-law, James Belt. He claims

Belt’s testimony was not admissible as victim impact testimony.

Furthermore, he claims under Rule 403 that any probative value it had

was outweighed by the danger of unfair prejudice. Appellant preserved

his complaints at trial, but the court acted within its discretion in

overruling them.

254 Pertinent Facts

During it’s case-in-rebuttal, the State called Mildred and Fred’s

son-in-law, James Belt, to testify. (RR68:212). Appellant objected that

Belt was not Mildred and Fred’s child. (RR68:218). He objected to the

fact that Belt would testify as to the effect of the offense on his wife,

Mildred and Fred’s daughter, Molly, as well as Mildred and Fred’s

grandchildren, Melanie and James III. (RR68:212-13, 216). He

objected that the defense would not be able to cross-examine Molly.

(RR68:212-13, 216). Appellant also objected to the testimony under

Rule 403. (RR68:214).

Before the jury, Belt testified that he is married to Mildred and

Fred’s only child, Molly. (RR68:220-21). Belt and Molly have two

children, Melanie and James III. (RR68:226). Fred and Belt, both

lawyers, shared an office close to Rose Lane. (RR68:229). Belt testified

that Fred was more than just a father-in-law; “he was everything to

[Belt].” (RR68:235). Belt had a great deal of respect and admiration for

Mildred. (RR68:235).

Belt testified that even though decades have passed since the

offense, “It comes back. [He] can’t shake it . . . It’s got [him] messed

255 up.” (RR68:236). After the offense, Molly had to take a leave of

absence from work for a year. (RR68:237). “Initially, she had anxiety

attacks. She couldn’t really do anything. But, as time passes, she’s

gotten a lot better . . . But she’s not whole.” (RR68:237). The offense

affected Melanie as well. Melanie “has never been able to stay in a

house by herself.” (RR68:237). Melanie could not be left alone when

she was a child or after she left home to go off to college. (RR68:237).

Victim-impact evidence is “evidence concerning the effect the

victim’s death will have on others, particularly the victim’s family

members.” Mosley v. State, 983 S.W.2d 249, 261 (Tex. Crim. App. 1998).

Victim-character evidence is “evidence concerning good qualities

possessed by the victim.” Id. Both types of evidence are admissible “in

the context of the mitigation special issue, to show the uniqueness of

the victim, the harm caused by the defendant, and as rebuttal to the

defendant’s mitigating evidence.” Id. at 262.

Victim-impact evidence “remind[s] the jury that murder has

foreseeable consequences to the community and the victim’s survivors -

- family members and friends who also suffer harm from murderous

256 conduct.” Estrada v. State, 313 S.W.3d 274, 316 (Tex. Crim. App. 2010)

(quoting Salazar v. State, 90 S.W.3d 330, 335 (Tex. Crim. App. 2002)).

Evidence about the victim can be an important humanizing factor,

making the victim more than just a faceless stranger before the jury,

and is essential for just decision making in the penalty phase of a

death-penalty trial. See Mosley, 983 S.W.2d at 261 (discussing Payne v.

Tennessee, 501 U.S. 808, 825 (1991)).

However, victim-impact evidence is subject to limitations. Victim-

impact evidence should be excluded under rule 403 if it predominantly

encourages comparisons between the worthiness of the victim and the

worthiness of the defendant. See Mosley, 983 S.W.3d at 262; Tex. R.

Evid. 403. “When the focus of the evidence shifts from humanizing the

victim . . . to measuring the worth of the victim compared to other

members of society[,] then the State exceeds the bounds of permissible

testimony.” Mosley, 983 S.W.3d at 262.

Trial courts should exercise sound discretion in permitting some

victim impact evidence while limiting the amount and scope of such

testimony. See Estrada, 313 S.W.3d 315-16 (quoting Salazar, 90

S.W.3d at 336). Considerations in determining whether testimony

257 should be excluded under rule 403 include the nature of the testimony,

the relationship between the witness and the victim, the amount of

testimony to be introduced, and the availability of other testimony

relating to victim impact and character. See Mosley, 983 S.W.2d at 262.

It is the State’s position that Appellant has failed to properly

brief his complaint regarding the testimony of James Belt. Importantly,

he does not provide citations to the portion(s) of the record of Belt’s

testimony that he claims is inadmissible. See Tex. R. App. P. 38.1(i).

The State notes that Belt offered more than simply victim-impact

testimony. Belt was also a fact witness; he was the person who found

Mildred’s and Fred’s dead bodies. (RR68:228-29).

In any event, the trial court did not err in allowing Belt to

provide victim-impact testimony. Belt’s testimony was relevant and

probative evidence that humanized Mildred and Fred. Mosley, 983

S.W.2d at 262. Belt provided a brief description for the jury of who this

married couple was and the impact of the murders on their family.

There was nothing in Belt’s testimony that encouraged a comparison

between Mildred and Fred and Appellant. As such, the trial court acted

258 within its discretion in allowing Belt’s testimony during the State’s

case-in-rebuttal.

That Belt was Mildred and Fred’s son-in-law did not render

Belt’s testimony inadmissible. See Mosley, 983 S.W.2d at 262 (stating,

“[W]e do not believe that an absolute rule limiting testimony to family

members within a certain degree of relationship is viable.”). Although

Belt was not Mildred and Fred’s son by birth, he was their son-in-law

and the father of their grandchildren. It is clear from Belt’s testimony

that he enjoyed an extremely close relationship with Mildred and Fred,

both personally and (as to Fred) professionally.

In his brief, Appellant argues that Belt’s testimony was

improper, extraneous victim testimony because it pertained to a victim

not named in the indictment. (Appellant’s Brief pp.127-28). Mildred is

the only complainant listed in the instant indictment, not Fred.

(CR:206). Appellant did not object on this basis at trial, therefore this

claim is not preserved for review. See Tex. R. App. P. 33.1. Regardless,

Appellant is incorrect. Belt’s testimony regarding the impact of the

offense, that he “can’t shake it” and that it “[had him] messed up”

pertains to Mildred’s murder. Mildred and Fred were killed during the

259 same transaction. Because his testimony pertains to the victim named

in the indictment, it was not improper.

Appellant complained at trial and in his brief on appeal that

because Belt was allowed to testify as to the effect of the offense on

Molly, he was denied the right to cross-examine her. At trial, the State

asked only two questions of Belt regarding the effect of the offense on

Molly. (RR68:236-37). And, Appellant made no attempt to cross-

examine him. (RR68:239).

Even if this Court finds that the trial court erred in admitting

Belt’s victim-impact testimony (which the State does not concede), any

alleged error is harmless. See Tex. R. Evid. 103; Tex. R. App. P. 44.2(b).

Belt’s testimony about the impact of the offense on him and his family

was brief. And, he was the only witness to give this type of testimony.

Indeed, the State was judicious and presented only one witness – Belt –

to testify regarding the impact of the brutal murder of a highly

respected couple in the Dallas community. Belt’s testimony did not

affect Appellant’s substantial rights. See Tex. R. App. P. 44.2(b).

Issue 46 should be overruled.

260 STATE’S RESPONSE TO ISSUE NOS. 47-48: APPELLANT IS NOT INTELLECTUALLY DISABLED.

In Issue 47, Appellant contends that the jury’s response to the

intellectual disability special issue is against the great weight and

preponderance of the evidence. In Issue 48, Appellant contends that the

evidence was sufficient to show that Appellant is intellectually disabled.

This Court has characterized the issue of intellectual disability

as an affirmative defense. Neal v. State, 256 S.W.3d 264, 273 (Tex.

Crim. App. 2008). When a defendant asserts this affirmative defense at

trial, he bears the burden to prove by a preponderance of the evidence

that he is intellectually disabled. Id. In reviewing the sufficiency of the

evidence to support the jury’s finding that Appellant was not

intellectually disabled, the appellate court considers whether the

finding is so against the great weight and preponderance of the

evidence as to be manifestly unjust. Id. The jury’s decision is entitled

to great deference as it is in the best position to assess the witnesses’

credibility and resolve any conflicts in the evidence. Id.

261 Alternate Standard of Review

In two issues, Appellant contends that the evidence presented at

trial established that he was intellectually disabled. The State

understands Issue 47 to be that the jury’s response to the intellectual

disability special issue is against the great weight and preponderance of

the evidence and Issue 48 to be that the evidence was sufficient to show

that Appellant is intellectually disabled. It is unclear whether

Appellant is suggesting that there are two standards of review in

connection with the jury’s response to the intellectual disability issue.

As stated above, the standard of review in connection with the jury’s

finding on the intellectual disability special issue is whether the finding

is so against the great weight and preponderance of the evidence as to

be manifestly unjust. Neal, 256 S.W.3d at 273. Appellant cites no

authority to the contrary.

A defendant is intellectually disabled and, thus, exempt from the

death penalty if he has (1) significant sub-average general intellectual

functioning, usually evidenced by an intelligence quotient (IQ) score

below 70, that is accompanied by, (2) related limitations in adaptive

262 functioning, (3) before the age of 18. Neal, 256 S.W.3d at 272-73;

Briseno, 135 S.W.3d at 7-8; see also Tex. Health & Safety Code Ann.

§591.003(7-a). These criteria are “adequately ‘informed by the medical

community’s diagnostic framework.’” Moore, 470 S.W.3d at 487 (citing

Hall, 134 S. Ct. at 2000).

Factors relevant to evaluating the three prongs include:

 Did those who knew the person best during the developmental stage--his family, friends, teachers, employers, and authorities--think he was mentally retarded at that time, and, if so, act in accordance with that determination?

 Has the person formulated plans and carried them through or is his conduct impulsive?

 Does his conduct show leadership or does it show that he is led around by others?

 Is his conduct in response to external stimuli rational and appropriate, regardless of whether it is socially acceptable?

 Does he respond coherently, rationally, and on point to oral or written questions or do his responses wander from subject to subject?

 Can the person hide facts or lie effectively in his own or others’ interests?

 Putting aside any heinousness or gruesomeness surrounding the capital offense, did the commission of

263 that offense require forethought, planning, and complex execution of purpose?

Neal, 256 S.W.3d at 273.

Appellant failed to meet his burden of proving that he is

intellectually disabled. The record supports the jury’s decision to

answer the first special issue “no.”

Appellant’s IQ

General intellectual functioning refers to an IQ which is obtained

by assessment with a standardized, individually administered

intelligence test. See Moore, 470 S.W.3d at 487 (citing Hearn, 310

S.W.3d at 428 n.7). Sub-average general intellectual functioning refers

to an individual’s “measured intelligence on standardized psychometric

instruments of two or more standard deviations below the age-group

mean for the tests used.” Tex. Health & Safety Code Ann. §591.003(20)

(West Supp. 2015). “[T]he MR or Intellectual Disability category is

approximately two standard deviations below the average, about an IQ

score of 70.” Cathey, 451 S.W.3d at 14.

264 Appellant presented evidence of two IQ scores: 77 and 71.

(RR65:118; RR66:23). Dr. Hom administered the Wechsler Adult

Intelligence Test (WAIS-II) in 1987. (RR65:110, 115). On this test,

Appellant’s full-scale IQ was 77. (RR65:118).

In 2012, Dr. McGarrahan administered the WAIS-IV and

Appellant scored a 71.34 (RR66:16, 23, 29; SX248). Appellant’s “full-

scale IQ was 71, which is in the - - what we used to call ‘mildly mentally

retarded’ range to borderline functioning[.]” (RR66:23). Given that the

standard error of measurement is “essentially plus or minus five

points,” Appellant’s score falls in the range of 66-76. (RR66:29-30). Dr.

McGarrahan testified that Appellant’s IQ score was two standard

deviations below the norm. (RR66:9-10).

The State’s expert, Dr. Price, testified that Appellant’s 71 IQ score

places him in “the borderline” range of mildly intellectually disabled.

(RR69:78). He testified, “you take into consideration the confidence

interval of the IQ score obtained and it includes, in this case, a score

that should be considered significantly sub-average.” (RR69:79). Dr.

34 At the time of trial, the WAIS-IV was the current edition of this test. (RR69:24). 265 Price testified that Appellant meets the first prong of the intellectual

disability analysis. (RR69:79).

Taking into consideration the SEM associated with Appellant’s

2012 71-IQ-score, the State agrees with Appellant that the evidence

substantiates a finding that he meets the first prong of the intellectual

disability analysis.

Adaptive Behavior

Even though Appellant’s 2012 IQ score meets the first prong of

the AAMR definition for intellectual disability, his IQ score alone does

not justify his classification as intellectually disabled. See Ex parte

Tennard, 960 S.W.2d 57, 60-61 (Tex. Crim. App. 1997) (IQ scores should

not be used as a “unitary measure of mental retardation”). The score

must be accompanied by deficits in adaptive behavior. Briseno, 135

S.W.3d at 7. Adaptive behavior is defined as “the effectiveness with or

degree to which a person meets the standards of personal independence

and social responsibility expected of the person’s age and cultural

group.” Tex. Health & Safety Code Ann. § 591.003(1) (West Supp. 2015).

“Impairments in adaptive behavior are defined as significant

limitations in an individual's effectiveness in meeting the standards of

266 maturation, learning, personal independence, and/or social

responsibility that are expected for his or her age level and cultural

group, as determined by clinical assessment and, usually, standardized

scales.” Briseno, 135 S.W.3d at 7 n.25.

Expert Opinion

Dr. McGarrahan testified that Appellant’s adaptive deficits

“include his academic functioning, his ability to socialize and be in the

community and live independently and take care of himself.”

(RR66:24). According to Dr. McGarrahan, Appellant could not make

change; had problems in school; did not learn how to drive; had

difficulty using a telephone and a telephone book; was a loner; had no

friends; had trouble getting along with people; and, experienced a head

injury at the age of 15. (RR66:25-26).

Dr. Price testified that he did not see significant limitations in

Appellant’s adaptive behaviors. (RR69:38). According to Dr. Price,

there was evidence that Appellant “had many different jobs in the time

after he was 17, in the free world.” (RR69:39). In addition, Appellant

was not incapable of graduating from high school. (RR69:39). Indeed,

Dr. Price did not believe that Appellant’s poor performance in school

267 was related to his intellectual functioning. (RR69:40). That Appellant

was picked on as a child and was a loner was not evidence of significant

limitations in adaptive behavior. (RR69:41). Some of the evidence

showed that he would not stand up for himself but other evidence

showed that he would. (RR69:41-42). Furthermore, Appellant was not

a complete loner; he had girlfriends and was close to some family

members. (RR69:42). Importantly, when Appellant was younger, he

was not treated by everyone as if he was intellectually disabled.

(RR69:44).

Dr. Price testified that Appellant has the ability to “formulate a

plan to behave in a certain way, to get the effect or to achieve the

consequence that he was after.” (RR69:44-45). He also has the ability

to lie in order to avoid criminal responsibility. (RR69:46). Dr. Price

testified that it appeared that the lying started with the Linwood

incident. (RR69:46). Appellant “comes up with excuses, self-defense

argument, denies that he committed this offense in the way in which

the evidence was presented to the jury, telling the investigator one

thing and also telling her at the same time to not put that in the

record.” (RR69:46). Appellant’s testimony in connection with the

268 Linwood offense was significant to Dr. Price and “was very inconsistent

with a person with mental retardation[.]” (RR69:58). Dr. Price

Well, it speaks to the area of communication as adaptive behavior, as well as the social problem-solving area. He testified. He was cross examined. He responded to the questions in a responsive fashion, on point. He understood the questions. He had an answer that was in his own self- interest, whether or not it was accurate or not.

It also showed a denial of responsibility for the act and a memorization of the conduct. But he was able to, if you will, hold his own on the witness stand under cross examination. Something that can be difficult to do.

(RR69:48).

Dr. Price also reviewed 24 of Appellant’s 90-day mental status

examinations from 2002 to 2010. (RR69:51). “[W]ith very, very few

exceptions, his mental status examines [sic] for those eight years . . .

were entirely normal.” (RR69:52). There was no evidence of psychosis,

hearing voices, bipolar disorder, or schizophrenia. (RR69:52). No

mental health medications were administered. (RR69:52). There were

no complaints of unusual behaviors. (RR69:53).

269 Other Evidence

The record reflects that, from a young age, Appellant was an

individual fully capable of caring for himself and carrying out everyday

activities whether at home, on the streets, or while incarcerated.

Appellant, also known by his nickname, “Clean,” liked clothes and liked

to dress well. (RR62:19-20, 46, 54, 100, 111; RR66:79). Although he did

not have a driver’s license, he got around by driving Lonnie’s car,

walking, or having friends pick him up. (RR62:62-63, 117, 131).

Contrary to Dr. McGarrahan’s testimony that Appellant was a

loner, didn’t have any friends, and did not know how to get along with

others, multiple witnesses testified that Appellant had relationships

with family, friends, and even had a girlfriend. (RR62:65, 131; RR66:25,

131, 71, 96-97). Indeed, from a young age, Appellant maintained close

relationships with multiple family members, including his brother

Lonnie and sister Shirley as well as his cousins Bobby Charles and

Thomas, Anthony, and Cynthia Penagraph. (RR62:53, 100; RR65:49-

50, 61; RR66:71). Thomas testified that he and Appellant were “just

like two peas in a pot (sic).” (RR62:65). They were “[r]eally close.”

(RR62:65). Anthony testified that he and Appellant went everywhere

270 together. (RR65:51). More recently, Appellant reconnected with his

half-brother Rodney Turner. (RR66:96). The men became pen pals,

encouraging each other through their letters. (RR66:97). Appellant’s

letters included citations to Scripture. (RR66:106).

Growing up, Appellant’s cousins Anthony and Cynthia believed

that Appellant was slow but Lonnie, Thomas, and Delores Easter did

not. (RR62:26, 53, 100; RR65:49; RR66:130). Indeed, Lonnie thought

Appellant was intelligent; Appellant could read and hold a conversation

with him and even helped him with his homework. (RR62:100-01, 118).

Easter described Appellant as “very bright.” (RR62:26).

There is no evidence that Appellant was ever placed in special

education classes through DISD. (RR68:207). Appellant’s school

records reflect that although he performed poorly in middle school, he

improved by his sophomore year of high school when he started

attending Metro North. (RR68:203-04). Notably, Appellant’s move to

Metro North did not occur until after his head injury at Fair Park.

(RR68:210). Dr. Price testified that based on the records, Appellant’s

scores on the Iowa and California tests, and his performance at Metro

North, Appellant was “not incapable” of graduating. (RR69:40). See

271 Cathey, 451 S.W.3d at 64 (noting that “[t]he best source of retrospective

information concerning adaptive behavior during the developmental

period is usually school records.”).

Appellant presented evidence of the head injury at Fair Park.35

The evidence reflects, however, that he testified at the trial in

connection with the Linwood offense three years after the injury.

(RR69:48). Dr. Price testified that Appellant’s testimony at that trial

was “very inconsistent with a person with mental retardation[.]”

(RR69:48). Similarly, when he was interviewed by Cindy Kuykendall

after the instant offense, Appellant responded to questions, answered

questions in his own interest, and “provided alibis, excuses,

rationalizations, [and] denials.” (RR69:49).

Appellant grew up in an area where fighting was common.

(RR62:55-56, 110). While it is true that Appellant would get picked on,

two of his cousins testified that if Appellant had to defend himself, he

would. (RR62:55, 107; RR65:47-48, 56; RR66:84). He even defended

Lonnie on more than one occasion. (RR62:108). Dr. Price testified that

whether one is picked on is not, by itself, evidence of intellectual

35The State introduced a copy of Appellant’s medical records from Parkland Hospital. The records contain no mention of the head injury. (RR69:57; SX249). 272 disability. (RR69:41). Instead, it is the response to being picked on

that should be considered. (RR69:41).

Although Appellant had “very few jobs over his life[,]” there was

evidence of some work experience. (RR66:18). Appellant worked as a

janitor with his mother at Fair Park. (RR62:114). He worked on trucks

with Rice’s brother, Anthony. (RR66:126, 136). He worked at the Adel

Hunt Furniture Company. (RR66:56). In 1984, however, while he was

out of prison on parole, he did not maintain stable employment.

(RR63:192-93).

Appellant has a history of lying and manipulative behavior.

When interviewed by police in connection with the Linwood incident, he

told the detective that he intended to kill Linwood when he stabbed

him, but then he told her not to include that detail in the report.

(RR66:46-48). When he testified at trial, he claimed that he did not

intend to kill Linwood; he just wanted to “scratch” Linwood to get him

to leave him alone. (RR66:46-47).

In 1983, while in prison, Appellant was aggressive and tried to

extort his then-cellmate Ferguson. (RR63:137-39). He manipulated

another inmate, Turner, into doing his laundry and doing “sexual stuff

273 for him[.]” (RR63:167-68). A 2010 inventory of Appellant’s cell turned

up two razor blades secreted in a book. (RR65:21-22; SX230). He also

had a diagram showing how to alter a radio to create a communication

device. (RR65:17; SX232).

In prison, Appellant manages his time and health. He spends

his time reading. One detention officer testified that Appellant is

always reading or sleeping. (RR67:41). He reads “novels off the law

library cart.” (RR67:45). An inventory of his cell revealed eight books,

a dictionary, and a Bible. (RR65:12, 13, 14, 28-29; SX231, 236-42). He

also had a capital defense periodical that contained markings on

passages concerning confidentiality and strategy. (RR65:24-28; SX233).

When he has recreation time at the gym, Appellant walks or plays

basketball. (RR67:42). In the event that Appellant needs to see a

doctor, he is able to take the steps necessary to do so. (RR69:45).

In 2006, Appellant took an “Adaptive Behavior Screening Test.”

(RR71:1212-13; SX251). He reported the following: prior to his arrest,

he lived with his family (common law wife); he supported himself with a

job; he had bills and he paid them; he got to where he needed to go by

driving himself; he cooked what he ate; when he needed to go to the

274 doctor, his family made an appointment; he looked at an analog clock

and correctly stated the time within 5 minutes; he washed his clothes

himself; and he reported that, to bake cornbread or a cake or biscuits,

the oven should be set to 300°-400°. (RR71:1212-13; SX251). He

answered one question incorrectly: “If cigarettes cost $4.35 and you

gave the clerk a $5.00 bill, how much change should you get back?”

(RR71:1213; SX251). Appellant answered “Any other [number]” instead

of “$0.65.” (RR71:1213; SX251).

The commission of the instant offense demonstrates considerable

forethought and planning. Through trial-and-error, Appellant figured

out how to get inside the Finch home. Once inside, he overpowered not

just one person, but two. After he brutally stabbed and killed Mildred

and Fred, he selected and organized the property that he wanted to

take and then figured out how to transport it from the Finch home to

his own. Once at home, he concocted a story to explain the blood on his

clothing and the source of all of the bags and boxes of clothing and

assorted property. Later, he disposed of his bloody clothes and the knife

he used to kill Mildred and Fred. During an interview with the media

after the offense, Appellant told a reporter that he got the blood on his

275 shoes from a dog that he had hit with a stick. (RR66:50). And, he gave

an alibi for the day after the murders. (RR66:52-53).

A significant impairment in adaptive behavior may be thought of

as the extent to which an individual requires assistance to carry

out age-appropriate activities. See Cathey, 451 S.W.3d at 23. Given all

of the foregoing, it is clear that before and after he turned 18, Appellant

was fully capable of carrying out age-appropriate activities. The jury

could have reasonably determined that any deficits Appellant had in

adaptive behavior were not within the range of intellectual disability.

Onset before 18

Appellant failed to prove an IQ below 70 and deficiencies in

adaptive behavior prior to the age of 18. First of all, both of Appellant’s

IQ tests were taken after his 18th birthday. When Appellant was tested

by Dr. Hom in 1987, he was 26. (DX7). When he was tested by Dr.

McGarrahan in 2012, he was 51. (SX248). The only evidence of an IQ

test taken during the developmental period was the California Test of

Mental Maturity taken when Appellant was in second grade.

(RR68:200). On this test, Appellant scored an 82 total IQ. (RR68:198).

276 Next, the evidence of adaptive deficits was conflicting. Some

family members thought Appellant was slow, but others thought he

functioned well and was bright. Although Appellant performed poorly

during some school years, his performance was better in others. There

was evidence that he worked with his mother. There was evidence that

he was bullied in the neighborhood, but there was also evidence that he

stood up for himself. Appellant failed to prove that he is intellectually

disabled, much less that the onset occurred during the developmental

period. See Cathey, 451 S.W.3d at 28 (stating that “If applicant has

failed to prove that he is intellectually disabled, he clearly did not prove

that he was intellectually disabled before the age of approximately

eighteen.”).

Given the foregoing, it is clear that the jury’s answer to the

intellectual disability special issue was not so against the great weight

and preponderance of the evidence so as to be manifestly unjust. Neal,

256 S.W.3d at 273.

Issues 47 and 48 should be overruled.

277 STATE’S RESPONSE TO ISSUE NO. 49: THE EVIDENCE IS LEGALLY SUFFICIENT TO SUPPORT THE JURY’S FINDING THAT APPELLANT IS A FUTURE DANGER.

In Issue 49, Appellant contends that the evidence is legally

insufficient to support the jury’s finding that there is a probability that

he will commit criminal acts of violence in the future. Appellant’s

contention lacks merit.

The State has the burden of proving the future dangerousness

issue beyond a reasonable doubt. Tex. Code Crim. Proc. Ann. art.

37.0711, §§ 3(b)(2), 3(c) (West 2006); Ladd, 3 S.W.3d at 557. A jury may

consider a variety of factors when determining whether a defendant will

pose a continuing threat to society: the circumstances of the offense,

the defendant’s state of mind, whether he was working alone or with

other parties, the calculated nature of his acts, the forethought and

deliberation exhibited by the crime’s execution, the existence of a prior

criminal record, the defendant’s age and personal circumstances at the

time of the offense, whether the defendant was acting under duress or

the domination of another at the time of the offense, psychiatric

evidence, and character evidence. See Martinez v. State, 327 S.W.3d

278 727, 730 n.4 (Tex. Crim. App. 2010). In reviewing the sufficiency of the

evidence, the appellate court views all of the evidence in the light most

favorable to the jury’s finding and determines whether, based on that

evidence and reasonable inferences therefrom, a rational jury could

have found beyond a reasonable doubt that the answer to the future-

dangerousness issue was “yes.” Id. at 730.

The State’s evidence unquestionably demonstrates Appellant’s

propensity for violence. Indeed, the facts of the offense, standing alone,

are sufficient to support a finding of future dangerousness. Appellant

broke into a home and brutally stabbed two people to death. “[A]

stabbing death is particularly brutal.” King v. State, 953 S.W.2d 266,

272 (Tex. Crim. App. 1997). Appellant stabbed Mildred 90 times. And,

Mildred was not his only victim. He also stabbed Fred to death. This

Court has stated that the circumstances of the offense may be sufficient

in some cases to support an affirmative finding on the future danger

issue. Devoe v. State, 354 S.W.3d 457, 462 (Tex. Crim. App. 2011); see

also Martinez v. State, 924 S.W.2d 693, 696 (Tex. Crim. App. 1996)

(commenting on the distinction between murders committed with a gun,

279 “which can potentially be used from across a room . . . and which often

results in death resulting from a single shot” and with a knife “a

weapon which, by virtue of its very nature, forces the user to be in such

close proximity to his victim that he is often touching him or comes into

contact with him on each blow [and] several thrusts are often utilized in

order to ensure death”).

Regardless, the State did not rely on the facts of the offense

alone. The State presented the following additional evidence of

Appellant’s history of violence which proves that he is a future danger:

 In 1979, Appellant stabbed Linwood in the head with a screwdriver causing permanent brain damage. (RR63:72, 84). Appellant told the detective that he was trying to kill Linwood.

 On the same day as the Linwood incident, Appellant got into a fight with his brother Billy, during which he cut Billy and Billy’s friend. (RR63:111-12).

 Later that night, upset when an ex-girlfriend would not let him inside her house, Appellant broke her window. (RR63:102-03).

 In January 1983, Appellant “started coming on” to his cellmate, Ferguson. (RR63:136, 138-39).

 In June 1983, Appellant was seen “raping another inmate.” (RR63:151).

280  On the day after the rape, Appellant tried to force another inmate, McCarroll, to “suck his dick.” (RR63:154). When the inmate refused, Appellant broke the inmate’s nose and gave him two black eyes. (RR63:154).

 In August 1983, Appellant manipulated another inmate, Turner, into washing his clothes and “do[ing] sexual stuff for him[.]” (RR63:168). Appellant also made Turner have sex with other inmates. (RR63:169).

 While in jail, Appellant was moved multiple times for a variety of reasons. He had to be placed in administrative custody; he assaulted other inmates; he caused trouble in the tank; he fought; he made sexual threats; and he could not get along with others. (RR63:182; SX228).

 While in prison, Appellant flooded his cell twice; used indecent or vulgar language; threw his tray out of his cell; threatened an officer twice; refused to obey an order multiple times; got into a fistfight with another inmate; threw two glasses of water at an officer, striking him on the face and chest; and was found in possession of contraband multiple times. (RR65:37-40; SX245).

 In 1984, while on parole, Appellant failed to report and even tried to stab his mother. (RR63:188-89).

Appellant argues that his good behavior while incarcerated on

death row proves that he is not a future danger. While good behavior

in prison is a factor to consider, it does not preclude a finding of future

dangerousness. Devoe, 354 S.W.3d at 468 (finding evidence sufficient to

281 support jury’s finding of future dangerousness despite Devoe’s “pristine”

behavioral record while incarcerated).

Viewed in the light most favorable to the verdict, the evidence is

more than sufficient to support the jury’s finding beyond a reasonable

doubt that Appellant would constitute a continuing threat to society.

The evidence is sufficient to support the jury’s answer to the future

dangerousness special issue.

Issue 49 should be overruled.

STATE’S RESPONSE TO ISSUE 50: THE TRIAL COURT DID NOT ERR IN DENYING APPELLANT’S REQUESTED JURY INSTRUCTION.

Appellant contends that the trial court erred in denying his

request to amend the jury instruction defining “significantly sub-

average general intellectual functioning.” Appellant’s contention lacks

merit.

The trial court’s charge to the jury defines “significantly sub-

average general intellectual functioning” as follows:

. . . refers to measured intelligence on standardized psychometric instruments of approximately two or more standard deviations below the group mean for the tests used. Significantly subaverage intellectual functioning is

282 evidenced by an IQ score of approximately 70 or below. An IQ score is not considered to be a fixed number. Instead a score represents a range or an approximation of a person’s IQ.

(CR3:17). Appellant requested that the following two sentences be

added to that definition:

 IQ tests has [sic] a standard error of measurement which is a reflection of the inherent imprecision of the test itself.  An IQ score of 70 is considered to represent a band or zone of a score of 65 to 75.

(RR69:120). He argued that his additions would “fully develop and give

an accurate definition of [the] terminology[.]” (RR69:120). In support

of his argument, Appellant called Dr. McGarrahan who testified that

the proposed instruction was important as it informs the jury that there

is inherent error in the tests and that the “IQ itself is not a hard and

fast number.” (RR69:122). The State then questioned Dr. McGarrahan

[State]: . . . Dr. McGarrahan, is the standard error of measurement five points, plus or minus, for every IQ test?

[Dr. McGarrahan]: It is not. And that might not be exactly accurate. The last part, to say a band zone or a score 65 to 75, it’s really not. It’s statistically based on each IQ score

283 and each IQ test. So we say approximately, plus or minus, five points. But it’s not exact.

[State]: So some tests may have a standard error of measurement of two-point something or three-point something. It depends on the test that’s given, correct?

[Dr. McGarrahan]: It does. And it depends on - - like, we have our verbal IQ or verbal comprehension versus our performance reasoning, and those are different. Their standard errors of measurement are different for each of those.

(RR69:123). The State opposed Appellant’s proffered additions as they

would constitute a comment on the weight of the evidence. (RR69:125).

The trial court denied Appellant’s request. (RR69:125).

The trial court has a duty to provide the jury with a written

charge, distinctly setting forth the law applicable to the case without

expressing any opinion as to the weight of the evidence, summing up

the testimony, discussing the facts, or using any argument that is

calculated to arouse the sympathy or excite the passions of the jury.

See Tex. Code Crim. Proc. Ann. art. 36.14 (West 2006).

284 Analysis

The trial court did not err in refusing Appellant’s request to

include his two proffered sentences in the punishment charge.

Contrary to the statements in Appellant’s brief, the first sentence,

which references the “standard error of measurement which is a

reflection of the inherent imprecision of the test itself[,]” does not define

sub-average general intellectual functioning. Instead, it is a comment

on the weight of the evidence; it recites that IQ tests are inherently

imprecise. See Tex. Code Crim. Proc. Ann. art. 36.14 (stating that the

court’s charge shall not express any opinion as to the weight of the

evidence). The trial court did not err in denying Appellant’s request to

include this sentence in the charge.

The second sentence, which references the “band or zone of a

score of 65 to 75” is inaccurate. Dr. McGarrahan testified that that

sentence “might not be exactly accurate.” (RR69:123). She stated, “to

say a band zone or a score 65 to 75, it’s really not. It’s statistically

based on each IQ score and each IQ test. So we say approximately, plus

or minus, five points. But it’s not exact.” (RR69:123). Given Dr.

285 McGarrahan’s testimony, the trial did not err in denying Appellant’s

request to include this sentence in the charge.

The trial court did not abuse its discretion in denying

Appellant’s requested instructions. At a minimum, the ruling falls

within the zone of reasonable disagreement. See Weatherred, 15 S.W.3d

at 542.

Even if this Court finds that the trial court erred in denying

Appellant’s requested instructions, which the State does not concede,

Appellant has failed to show some harm. If there is error in the court’s

charge and that error was the subject of a timely objection in the trial

court, reversal is required if the error is calculated to injure the rights

of the defendant, which means only that there must be some harm as a

result of the error. See Almanza v. State, 686 S.W.2d 157, 171 (Tex.

Crim. App. 1985) (op. on reh’g). Whether the defendant suffered actual

harm is evaluated in light of the entire jury charge, the state of the

evidence, counsel’s arguments, and any other relevant information in

the record. See id.

With regard to the first sentence, as previously argued, it was a

comment on weight of the evidence. Regardless, that IQ scores are not

286 fixed numbers was already before the jury. Dr. McGarrahan testified

regarding the standard error of measurement, as did Dr. Price.

(RR66:29-30; RR69:33-34). Indeed, the fact that IQ scores do not

represent fixed numbers was undisputed. As to the second sentence,

Appellant cannot show harm since Dr. McGarrahan herself testified

that it may not be an accurate statement. (RR69:123).

Issue 50 should be overruled.

STATE’S RESPONSE TO ISSUE 51: THE TRIAL COURT DID NOT ERR IN DENYING APPELLANT’S REQUEST THAT THE JURY BE ALLOWED TO ENTER A NON-UNANIMOUS VERDICT REGARDING THE INTELLECTUAL DISABILITY SPECIAL ISSUE.

request that the jury not be required to unanimously find the

intellectual disability special issue in his favor. Appellant’s contention

lacks merit.

During the charge conference, Appellant requested the

following:

. . . where the Court is submitting and that the jury, to find mental retardation, must agree unanimously, we are requesting a civil burden be placed here. In the state of

287 Texas, a civil burden is a jury verdict of ten members of the jury, as opposed to the twelve.

In other words, none is not unanimously to be found, and we would ask that the Court adopt or adapt one of the - - like, on page three, where it says in the middle of the page “you may not answer either issue” we would request “. . . this Special Issue yes, unless ten or more Members of the Jury agree”. That that be applied, instead of a unanimously [sic] burden.

(RR69:125-26). Appellant’s request was denied. (RR69:126).

The jury was instructed regarding the intellectual disability

special issue as follows:

You may not answer Special Issue No. 1 “yes” or “no” unless the jury agrees unanimously. Members of the jury need not agree on what particular evidence supports a “yes” answer to Special Issue No. 1.

(CR3:19).

On appeal, Appellant has failed to properly brief this issue. He

lists three cases and a statute, but he includes no argument showing

that he was entitled to the complained-of instruction. Tex. R. App. P.

288 Regardless, Appellant’s argument lacks merit. Unlike the future

danger and mitigation special issues, the Texas Legislature has not

established a statutory scheme for the presentation and determination

of an issue of intellectual disability in a capital murder trial. See

Hunter v. State, 243 S.W.3d 664, 672 (Tex. Crim. App. 2007). In

Hunter, this Court overruled Hunter’s complaint that he was entitled to

a pre-trial determination of intellectual disability. Id. This Court

stated that, “In the absence of legislation or a constitutional

requirement directing when the determination of mental retardation is

to be made or by whom, the trial court committed no error in denying

[Hunter] a pretrial determination of mental retardation by a judge or

jury separate from that determining guilt.” Id. The same logic applies

here. Since there is no statutory scheme dictating the jury verdict

regarding intellectual disability, the trial court committed no error in

requiring that it be unanimous.

In his brief, Appellant cites three cases and a civil rule;

however, none provide authority in support of his argument that the

jury should have been allowed to answer the intellectual disability

special issue “yes” if only ten of the twelve jurors agreed. (Appellant’s

289 Brief p.144). Neither Briseno nor Gallo mandate Appellant’s proposed

instruction. Briseno, 135 S.W.3d 1; Gallo v. State, 239 S.W.3d 757 (Tex.

Crim. App. 2007). The opinion in Williams v. State contains a footnote,

which recites that jurors were instructed to answer the intellectual

disability special issue “yes” if at least ten jurors found that he proved

by a preponderance of the evidence that he was intellectually disabled.

270 S.W.3d 112, 134 fn.30 (Tex. Crim. App. 2008). The opinion does not

address whether that instruction was required or whether it was even

proper. Id. Rule 292 of the Texas Rules of Civil Procedure provides

that a jury may render a verdict “by the concurrence . . . of the same ten

or more members of an original jury of twelve[.]” Tex. R. Civ. Proc.

Ann. 292. Appellant points to no authority showing that Rule 292

applies to a jury determination of intellectual disability in a capital

murder case.

In any event, even if this Court concludes that the trial court

erred in denying Appellant’s proposed instruction, which the State does

not concede, any alleged error was harmless. In this case, the jury was

unanimous; the jury unanimously found that Appellant failed to prove

by a preponderance of the evidence that he was intellectually disabled.

290 Issue 51 should be overruled.

STATE’S RESPONSE TO ISSUE 52: THE TRIAL COURT DID NOT ERR IN DENYING APPELLANT’S REQUEST FOR AN ACCOMPLICE WITNESS INSTRUCTION.

Appellant contends that the trial court erred in failing to include

an accomplice witness instruction in the instant punishment charge.

Appellant’s contention lacks merit.

During the charge conference, Appellant requested “that the jury

be instructed that Lonnie Thomas was an accomplice witness[.]”

(RR69:126-27; DX25). Appellant offered the following instruction:

You are instructed that Lonnie Thomas was an accomplice and you cannot consider his testimony unless you first believe that his testimony is true and shows the guilt of the defendant as charged by the indictment, and then you cannot consider his testimony unless the accomplice witness’ testimony is corroborated by other evidence tending to connect the defendant with the offense charged, and the corroboration is not sufficient if it merely shows the commission of the offense, but it must tend to connect the defendant with its commission.

(DX25). In response, the State argued that an accomplice instruction

would be appropriate for a guilt-or-innocence charge, but not a

punishment charge. (RR69:127). The State pointed out that the 291 existing charge already instructed the jury to determine the credibility

of each witness, which would necessarily include Lonnie. (RR69:127).

Anything further would be a comment on the weight of the evidence.

(RR69:127). Appellant’s request for an instruction was denied.

(RR69:127).

Article 38.14 of the Texas Code of Criminal Procedure provides

A conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed; and the corroboration is not sufficient if it merely shows the commission of the offense.

Tex. Code Crim. Proc. Ann. art. 38.14 (West 2005).

Appellant has failed to properly brief this issue. Indeed, his

briefing regarding this issue consists of only two sentences.

(Appellant’s Brief pp.144-45). This Court is not required to make

Appellant’s case for him. Garcia, 887 S.W.2d at 882.

Moreover, Appellant points to no authority in support of his

contention that he was entitled to an accomplice-witness-instruction 292 during the punishment phase of trial. Appellant cites one case, Zamora

v. State, 411 S.W.3d 504 (Tex. Crim. App. 2013).36 This case concerns

the use of an accomplice-witness-instruction during the guilt/innocence

phase of trial. Id. at 507-08. Appellant does not cite – and the State

cannot locate – any authority requiring such an instruction in the

punishment charge.

Issue 52 should be overruled.

STATE’S RESPONSE TO ISSUE 53: THE TRIAL COURT DID NOT ERR IN DENYING APPELLANT’S REQUEST FOR AN ANTI-PARTIES INSTRUCTION IN THE CHARGE.

request for an anti-parties instruction in the jury charge. Appellant’s

Appellant requested that the trial court include the following

instruction in the charge:

You are further instructed that at this phase of the trial only the conduct of the Defendant can be considered in determining the answers to the special issues submitted to you.

36In fact, Applicant cites to Zamosa v. State, 41 S.W.3d 504 (Tex. Crim. App. 2013). There is no case by that name at that cite. The State believes this is a clerical error. 293 (RR69:128).

Where a law of parties charge is given during the

guilt/innocence phase of a capital case, a prophylactic instruction should

be given, if requested, which would instruct the jury to limit its

consideration of punishment evidence to conduct shown to have been

committed by the defendant. Belyeu v. State, 791 S.W.2d 66, 72-73

(Tex. Crim. App. 1989). This is referred to as an “anti-parties” charge.

See Martinez v. State, 899 S.W.2d 655, 657 (Tex. Crim. App. 1994).

However, a blanket rule that each time a charge on the law of parties is

given at the guilt/innocence stage of a capital murder case an “anti-

parties” charge must be given on request at the punishment stage (or

charge error results) is inappropriate. See id. at 73.

Appellant has failed to properly brief this issue. Although he

cites three cases, he fails to set forth any specific argument or

discussion of the authority in support of his contention. (Appellant’s

Brief p.144). This Court is not required to make Appellant’s case for

294 Regardless, Appellant’s argument fails. The trial court did not

err in denying Appellant’s request for an anti-parties charge. Contrary

to the statements in Appellant’s brief, a parties instruction was not

included in the original guilt/innocence charge. The jury was instructed

that Lonnie Thomas was an accomplice, however, there was no

instruction regarding Appellant’s criminal responsibility as a party.

Because there was no parties instruction in the guilt/innocence charge,

Appellant was not entitled to one in the instant punishment charge.

Issue 53 should be overruled.

STATE’S RESPONSE TO ISSUE 54: THE TRIAL COURT DID NOT ERR IN DENYING APPELLANT’S REQUEST FOR A SECOND COMPETENCY HEARING.

request for a second competency hearing. Appellant’s contention lacks

On July 9, 2014, the jury found Appellant competent to stand

trial. (RR59:7).

Trial on the merits began on July 10, 2014. (RR60). At the

conclusion of testimony on July 15, defense counsel requested the

opportunity for he and Appellant to put some things on the record, ex 295 parte. (RR63:204-05). During that ex parte hearing, Appellant

appeared to offer to “accept signing any document, endorsing any

paperwork needed,” so that he could go home, having already served 27

years for this offense. (RR63:209-10). The trial court informed

Appellant that even if counsel filed a Motion for Time Served, he “would

have to deny it. Because the State has the . . . right to make the

election how they wish to proceed in this type of case. And if they wish

to proceed and pursue the death penalty, then the Court cannot, on its

own, prevent them from doing so.” (RR63:211).

The following morning, before Appellant was brought into the

courtroom, he completely undressed himself then smeared feces on his

face and upper chest. (RR64:4; DX4-5). In a hearing in chambers,

defense counsel stated:

. . . We were in court getting ready to proceed in trial when the bailiffs alerted us that Mr. Thomas was back in his cell and undressed and covered in feces.

They allowed me to go back to the holding cell to speak to him. I asked him if he would get dressed and clean himself up, and he said he was fine the way he was. I asked him was he refusing to come into court, and he said, no; that he was ready to come into the courtroom, but that’s the way he was going to enter.

296 (RR64:3). Counsel took photographs of Appellant with his phone and

showed them to the trial court “to support our position again that there

has been a material change in his competency, and we would ask the

Court to consider that at this time when deciding whether to make an

inquiry.” (RR64:5-6; DX4-5). Counsel advised of her intent to file an

Amended Motion for Competency Evaluation and Hearing. (RR64:5).

The trial court stated that the defense could file their motion and he

would take it under advisement. (RR64:6). The judge stated, however,

that he believed that Appellant was “just playing games and trying to

delay this proceeding.” (RR64:6).

Appellant agreed to take a shower and clean himself and then

return to court. (RR64:10-11). He requested to see his “psych doctor at

the jail.” (RR64:11). Testimony resumed that afternoon. (RR65:8).

Appellant elected to remain in the holdover during testimony.

(RR65:8).

On July 23, 2014, defense counsel filed “Under Seal Defendant’s

Second Notice of Incompetence to Stand Trial.” (CR-S:24). In the

motion, counsel alleged that “[s]ubsequent to the jury determination on

July 9, 2014 that the Defendant was competent to stand trial there has

297 been a marked and material decline in the Defendant’s competency[.]”

(CR-S:24). Counsel requested that the trial court again inquire into

Appellant’s competency to stand trial. In support of the motion,

counsel attached an affidavit wherein she averred that Appellant’s

condition had worsened; he has persistent delusions; he did not

understand that his innocence is not at issue in the trial proceedings; on

July 16, 2014, Appellant “had a breakdown, removing all his clothes in

the holdover and smearing excrement on his face and chest.” (CR-S:24).

After closing arguments but before the verdict, defense counsel

“ask[ed] the court consider our Motion and make its ruling.” (RR70:81).

The motion was denied. (RR70:81). Counsel re-urged the motion after

the verdict, but prior to sentencing. (RR70:84). The motion was denied.

(RR70:84).

A defendant is presumed competent to stand trial. Tex. Code

Crim. Proc. Ann. art. 46B.003(b). A defendant is incompetent to stand

trial if he lacks: (1) sufficient present ability to consult with his lawyer

with a reasonable degree of rational understanding; or (2) a rational as

well as factual understanding of the proceedings against him. See Tex.

298 Code Crim. Proc. Ann. art. 46B.003(a). Should a formal competency

trial result in a finding of competency, the trial court is not obliged to

revisit the issue later absent a material change of circumstances

suggesting that the defendant's mental status has deteriorated. Turner

v. State, 422 S.W.3d 676, 693 (Tex. Crim. App. 2013).

The trial court did not err in denying Appellant’s request for a

second competency determination because Appellant failed to prove a

material change of circumstances since the previous determination of

competency. Appellant’s competence was determined by a jury on July

9th. A week later, on July 16th, when trial on the merits was well

underway, Appellant undressed and smeared feces on his face and

chest. In a hearing in chambers, the judge stated:

For the record, the Court engaged in a conversation with the Defendant after the end of testimony yesterday and, based on that conversation, the Court is going to proceed with the trial.

The Court is of the opinion that the Defendant is just playing games and trying to delay this proceeding.

(RR64:6). This exchange was the informal inquiry into Appellant’s

competency. It is clear from the judge’s comment, however, that he did

299 not believe that evidence existed to support a finding of incompetency.

A trial court's first-hand factual assessment of a defendant's

competency is entitled to great deference on appeal. Ross v. State, 133

S.W.3d 618, 627 (Tex. Crim. App. 2004).

In any event, the trial court invited the defense to file a motion,

which the judge would take under advisement. (RR64:4). Defense

counsel did not file the instant motion until seven days later, on July

23rd, when the parties delivered their closing arguments. (CR-S:24).

Although the motion alleges that Appellant has suffered “a marked and

material decline in Defendant’s competency[,]” no evidence was

presented to prove that there had been a material change in

circumstances in connection with Appellant’s mental status. In the

affidavit attached to the motion, counsel described that Appellant

suffers from delusions. But, this evidence was presented and rejected

at the July 7th competency trial. (RR57:177-80, 182, 185). Counsel also

alleged that Appellant “persists in demanding that we put on a defense

to his guilt.” (CR-S:24). Evidence on this subject was also presented at

the competency trial. Dr. McGarrahan testified at length regarding

Appellant’s belief that he cannot be convicted if the State fails to

300 introduce the murder weapon. (RR57:175-77). She testified that

Appellant believes that State’s witnesses are working behind the scenes

to ensure his conviction. (RR57:177). She testified that Appellant’s

“perceptions and his beliefs are not based in reality.” (RR57:179). “He

believes that if only his attorneys . . . could file the right motion, he

could walk out the door.” (RR57:181). The competency jury heard this

information and rejected it. (RR59:7).

The affidavit also described the July 16th feces incident.

However, beyond the mere fact of the incident itself, no evidence was

presented to suggest that in the days between the jury’s determination

of competency, the feces incident and informal inquiry, and the filing of

the motion, that Appellant had suffered a material change of

circumstances suggesting that his mental status has deteriorated.

Beyond the mere fact of the incident itself, no evidence was presented to

suggest that Appellant lacked sufficient present ability to consult with

his lawyers with a reasonable degree of rational understanding or that

he lacked a rational as well as a factual understanding of the

proceedings. See Tex. Code Crim. Proc. Ann. art. 46B.003(a). Indeed,

the affidavit merely recites that after the incident, Appellant “seemed

301 dazed [and] largely non-responsive to [counsel’s] questions and

explanations.” (CR-S:24). The next day, Appellant “was cheerful and

had returned to his delusive state.” (CR-S:24). There is no mention of

any additional information suggesting a deterioration in Appellant’s

mental status.

While it is true that Appellant’s decision to smear feces on his

face and upper chest was shocking and repellant, it was not necessarily

an act demonstrating incompetency. Johnson v. State, 429 S.W.3d 13,

18 (Tex. App.—Houston [1st Dist.] 2013, no pet.) (stating that “[b]izarre,

obscene, or disruptive comments by a defendant during court

proceedings do not necessarily constitute evidence supporting a finding

of incompetency”). Instead, it was an act intended to cause disruption.

From the very beginning of the trial proceedings, Appellant engaged in

behavior calculated to disrupt those proceedings. At the beginning of

voir dire, Appellant sought to voluntarily absent himself. (RR12:10-11).

He told counsel that if he was brought into the courtroom that he would

fight the guards. (RR11:6). On July 12th, Appellant told one of his

lawyers that “The three of us need to work together to stop the trial[.]”

(CR-S:24). Three days later (the day before the feces incident), during

302 testimony by State’s witness Turner, Appellant stood up and tried to

walk out of the courtroom into the holdover. (RR63:163). At the end of

that day, during the ex parte hearing described above, Appellant told

the judge that he had “asked Mr. Carlos [sic] to stop the jury several

times.” (RR63:210). The following morning, Appellant smeared feces

on himself.

The feces incident was not the act of a man suffering a material

deterioration in his mental status; it was the well-devised strategy of a

man trying to derail his capital murder trial. It is worth noting the

bailiff’s description of the incident:

When we did roll call, [Appellant] was in his cell and he was dressed out at that time. When we had went to get him for court, he was totally nude and he had feces wiped across his entire face and also his chest. His clothes were folded up and put to the side. There was no feces on the walls or floor or anywhere inside the cell. It was just on hisself [sic].

(RR64:9). Indeed, the photographs reflect that Appellant smeared the

feces on his face very carefully, deliberately avoiding his eyes, nose, and

mouth. (RR72:15, 17; DX4-5). Afterward, he took the time to wash his

hands as there appears to be no feces on his hands. (RR72:15, 17; DX4-

5). That Appellant was able to talk to his attorney and agree to clean

303 himself and return to court shows that he was able to communicate

with counsel. Given the foregoing, it is clear that the trial court did not

abuse its discretion in denying Appellant’s motion for a third inquiry

into his competency. At a minimum, it falls within the zone of

reasonable disagreement.

Issue 54 should be overruled.

STATE’S RESPONSE TO ISSUE NO. 55: APPELLANT’S CLAIM THAT THE EVIDENCE IS INSUFFICIENT TO SUPPORT HIS CONVICTION FOR CAPITAL MURDER PRESENTS NOTHING FOR THIS COURT’S REVIEW.

Appellant contends that the evidence is insufficient to support his

conviction for capital murder. In particular, he points to the fact that

the murder weapon was never found and entered into evidence.

On an appeal of a retrial on punishment only, an appellant may

not allege any error that transpired during the guilt-innocence phase of

trial. See Easton v. State, 920 S.W.2d 747, 749 (Tex. App.—Houston

[1st Dist.] 1996, pet. ref’d). The appeal is entirely limited to issues

pertaining to the retrial on punishment. See Sanders v. State, 832

S.W.2d 719, 723-24 (Tex. App.—Austin 1992, no pet.).

304 Analysis

On August 25, 2010, this Court vacated Appellant’s sentence and

remanded the case to the trial court for a new punishment hearing. See

Ex parte Thomas, No. AP-76,405, 2010 Tex. Crim. App. Unpub. LEXIS

452, at *6 (Tex. Crim. App. Aug. 25, 2010) (not designated for

publication). Because he was retried as to punishment only, Appellant’s

appeal is limited to issues pertaining to that punishment retrial. See

Sanders, 832 S.W.2d at 723-24. Appellant’s current complaint

regarding the sufficiency of the evidence to support his conviction for

capital murder, however, relates to the guilt/innocence phase of trial.

Appellant has failed to present an issue appropriate for this Court’s

review.

Issue 55 should be overruled.

STATE’S RESPONSE TO ISSUE NOS. 56-67: THE TRIAL COURT PROPERLY DENIED APPELLANT’S CHALLENGES TO THE DEATH PENALTY STATUTE.

In Issues 56 through 67, Appellant challenges the

constitutionality of the Texas death penalty statute. He acknowledges

that these issues have been previously submitted to this Court and

overruled, citing Saldano, 232 S.W.3d 77, but invites the Court to

review its prior stance on these issues. He claims that he asserts these 305 issues not to cause unnecessary litigation but to preserve the issues for

federal court review. (Appellant’s Brief p.151).

In Issue 56, Appellant contends the statute under which he was

sentenced to death violates the Eighth Amendment by allowing the jury

too much discretion in determining who should live and who should die

and results in the arbitrary and capricious imposition of the death

penalty. (Appellant’s Brief p.152).

In Issue 57, Appellant contends that the Texas death penalty

statute violates the due process mandates of the Fourteenth

Amendment because it implicitly puts the burden of proving the

mitigation special issue on him rather than placing the burden on the

State to prove beyond a reasonable doubt that no circumstances

warrant a life sentence rather than a death sentence. (Appellant’s Brief

p.152).

In Issue 58, Appellant contends the trial court erred in denying

his motion to hold that Article 37.0711, §§ 2(e) and (f) violates Article I,

§§ 10 and 13 of the Texas Constitution.37 (Appellant’s Brief p.153).

37 The State presumes that Appellant’s citation to Tex. Code Crim. Proc. Ann. art. 37.071 is actually a citation to Tex. Code Crim. Proc. Ann. art. 37.0711, §§ 3(e) and (f) (West Supp. 2015). 306 In Issue 59, Appellant contends that the Texas death penalty

scheme violates the due process protections of the U.S. Constitution

because it does not 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.

(Appellant’s Brief p.154).

In Issue 60, Appellant contends that the Texas death penalty

scheme violates his rights against cruel and unusual punishment and to

due process of law under the Eighth and Fourteenth Amendments by

requiring at least ten “no” votes for the jury to return a negative answer

to a punishment special issue. (Appellant’s Brief p.154).

In Issue 61, Appellant contends that the Texas death penalty

scheme violates his rights against cruel and unusual punishment, to an

impartial jury, and to due process of law under the Sixth, Eighth, and

Fourteenth Amendments because vague, undefined terms in the

punishment jury instructions effectively determine the difference

between a life or death sentence. (Appellant’s Brief p.155).

In Issue 62, Appellant contends that the trial court erred in

overruling his motion to hold Art. 37.071, §§ 2(e) and (f)

307 unconstitutional because it fails to require the jury to give meaningful

consideration to mitigating evidence. 38 (Appellant’s Brief p.156).

In Issue 63, Appellant contends that the mitigation special issue is

unconstitutional because it fails to place the burden of proof on the

State to prove that aggravating evidence exists. (Appellant’s Brief

p.156).

In Issue 64, Appellant claims that the mitigation special issue is

unconstitutional under the Eighth and Fourteenth Amendments to the

U.S. Constitution because it permits an open-ended discretion which

was condemned by Furman v. Georgia, 408 U.S. 238 (1972).

(Appellant’s Brief p.157).

In Issue 65, Appellant contends that Texas’ statutory capital

sentencing scheme is unconstitutional under the Eighth and Fourteenth

Amendments because it lacks meaningful appellate review.

(Appellant’s Brief pp.157-58).

In Issue 66, Appellant contends that the trial court erred in

overruling his pre-trial motions which raised various constitutional

38 The State presumes that Appellant’s citation to Tex. Code Crim. Proc. Ann. art. 37.071 is actually a citation to Tex. Code Crim. Proc. Ann. art. 37.0711, §§ 3(e) and (f). 308 challenges to the Texas capital murder punishment scheme.

(Appellant’s Brief pp.158-59).

In Issue 67, Appellant contends that the cumulative effect of these

alleged constitutional violations denied him due process of law in

violation of the Fifth and Fourteenth Amendments of the U.S.

Constitution. (Appellant’s Brief pp.159-60).

Appellant invites the Court to revisit its prior decisions on these

issues, which he agrees have all been previously overruled. See

Appellant’s Brief at 151, 158; Saldano, 232 S.W.3d at 107-09

(overruling multiple challenges to death penalty statute); Escamilla,

143 S.W.3d at 828-829 (overruling similar challenges). Appellant

presents no new arguments for the State to address. Accordingly, the

State asks this Court to decline his invitation to revisit these legal

claims and to overrule issues 56 through 67.

309 PRAYER

The State prays that this Honorable Court will affirm the

judgment of the trial court.

Respectfully submitted,

Susan Hawk Christine Womble Criminal District Attorney Assistant District Attorney Messina Madson State Bar No. 24035991 First Assistant Frank Crowley Courts Bldg Criminal District Attorney 133 N. Riverfront Blvd., LB-19 Dallas County, Texas Dallas, Texas 75207-4399 (214) 653-3625 (214) 653-3643 fax CWomble@dallascounty.org

310 CERTIFICATE OF COMPLIANCE

I hereby certify that there are 57,838 words in this document,

excluding the caption, statement regarding oral argument, table of

contents, index of authorities, statement of the case, statement of

issues presented, signature, certificate of service, and certificate of

compliance. This number exceeds the maximum allowable number of

words provided in Tex. R. App. P. 9.4(i)(2)(A). The State is filing a

Motion to Exceed the Word Count contemporaneously with this brief.

_____________________ Christine Womble

CERTIFICATE OF SERVICE

I hereby certify that a true copy of the foregoing brief was served

on John Tatum, attorney for Appellant, 990 South Sherman Street,

Richardson, Texas, 75081, by email and by United States mail, on

September 16, 2016.

Christine Womble