Williams, Andre v. State

• Court: Court of Appeals of Texas
• Decided: May 11, 2006
• Docket: 14-04-00371-CR
• Status: Published

Opinion

Affirmed and Memorandum Opinion filed May 11, 2006

Affirmed and Memorandum Opinion filed May 11, 2006.

In The

Fourteenth Court of Appeals

_______________

NO. 14-04-00371-CR

ANDRE WILLIAMS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 248th District Court

Harris County, Texas

Trial Court Cause No. 959,049

M E M O R A N D U M   O P I N I O N

A jury found appellant, Andre Williams, guilty of murder and assessed a life sentence and a $10,000 fine.  In his first eleven issues, appellant contends the trial court erred by interfering with his cross-examination of a witness, admitting certain evidence, failing to give proper notice of pretrial hearings, denying funds to hire experts, allowing allegedly improper jury argument, denying access to evidence including allegedly exculpatory evidence, improperly responding to a jury note, and showing bias towards him.  In his twelfth and final issue, appellant challenges the factual sufficiency of the evidence supporting the jury=s verdict.^[1]  Appellant has also filed a motion to abate which we ordered taken with the case.  We deny the motion to abate and affirm the conviction.

I.  Background

On Sunday, August 17, 2003, appellant had been living with his mother, Betty Baird (ABetty@), and his stepfather, Bill Baird (ABill@), in their Harris County home for about a year and a half because he was unemployed and recently divorced.  Betty testified that on Sunday evening, while the family sat in the living room, Bill expressed disapproval that appellant had not found a job and his own place.  Appellant replied AI=m sorry you feel that way@ and left the room.  Bill had difficulty walking due to recent surgery.  While Betty helped him walk to the kitchen, he said, ASo, now you=re going to kill me?@  As Betty turned to see whom Bill was addressing, she heard a Apopping@ noise, saw a Ared flash@ in Bill=s neck/collarbone area, and saw him fall to the floor.  Betty noticed appellant was back in the living room and was very agitated and yelling and jumping up and down.  Appellant then ran down the hall but quickly returned holding a gun.  As Betty lay on Bill attempting to shield him, appellant shot Bill in the head.  Betty ordered appellant to leave the home, so she could call 911 because Bill was still alive.  Appellant shot Bill again and said Ahe=s not alive now.@  Betty heard a total of five shots.

According to Betty, appellant then prevented her from calling 911 or leaving the home.  She asked if he planned to kill her.  Appellant replied, AI=m not going to kill you, but I=m very highly agitated so don=t do anything to upset me.@  Appellant forced Betty into her bedroom, cut the bedroom telephone cord, insisted she remain quiet, and gave her some medication which caused her to sleep until the next morning.  On Monday morning, appellant took Betty to the kitchen where he had Bill=s wallet and checkbook laying out and made her write a check for $600.  Otherwise, Betty remained confined to her bedroom until Wednesday afternoon.  At some point, she heard a Agrinding@ noise and noticed the air conditioner was turned extremely low.  Appellant told her he would be running the machine for awhile and he had to keep the house cold.  Betty also smelled bleach and baby powder.  Appellant told her he was cleaning the house and she might smell strong chemicals.  On Wednesday afternoon, Betty signaled through a window for a neighbor to call the police.

The Harris County deputies who initially responded testified that Betty met them at the front door, and she was frightened and distraught and begged for help.  She said that she was being held hostage and that appellant killed her husband and Agrinded him up.@  Appellant was not in the home when the officers arrived.  He was arrested in Harrison County, Texas about a week after the murder when officers found him asleep in the truck he had been driving.

The Harris County deputies who investigated the Bairds= home found most of Bill=s dismembered body parts, iced down and placed in trash bags and Rubbermaid-type containers in various locations in the home.  They also determined some parts of the home had been thoroughly cleaned.  They found a hand-held power saw identified as a ASawzall,@ the Sawzall blades, two hacksaws, bleach, baby powder, cleaning wipes, and rubber gloves.  The State presented evidence that on the Monday and Tuesday after the murder, appellant went to Home Depot and a grocery store and purchased a Sawzall, Sawzall blades, cleaning and odor control supplies, large containers, trash bags, a shovel, and ten bags of ice.  Additionally, in appellant=s bedroom, deputies found three handguns, what appeared to be a homemade silencer, and hand-written notes entitled APlausible Deniability@ which appear to outline a schedule for obtaining supplies, dismembering the body, and cleaning the scene.

The medical examiners who performed Bill=s autopsy testified that he sustained at least two fatal gunshot wounds: one bullet traveled through the breastbone, aorta, and lung, and another bullet entered the back of his head and traveled through the brain.  A deputy firearms examiner testified that one bullet was fired from one gun found in appellant=s bedroom.  He testified that the other bullet could have been fired from another gun found in appellant=s bedroom, but the bullet was too deformed to make a definite conclusion.

Several other witnesses testified regarding incriminating statements and behavior by appellant during the week between Bill=s murder and appellant=s arrest.  One of the Bairds= neighbors testified that when she saw appellant on Tuesday, he had changed his appearance by shaving his mustache, lightening his hair color, and cutting his hair.  Appellant=s friend, Sharon McDonald, testified that on Wednesday or Thursday, he left her a message, stating he was suicidal.  Later, when she spoke with him personally, he said he had Adone something bad.@  He also said that he had been burying body parts, and when he returned to the home, police had arrived, so he kept driving.  Appellant=s ex-wife, Deborah Jacobs, testified that appellant called her on Wednesday and said something had happened to Bill.  On Thursday, when she met appellant in the Dallas area to get their dogs, he said he wanted to kill himself.  Deborah called authorities and gave them the license number for the truck appellant was driving.

II.  Cross-Examination of Betty Baird

In his first issue, appellant contends the trial court violated the confrontation clauses of the United States and Texas constitutions by improperly interfering with his cross-examination of Betty.  The confrontation clauses guarantee a defendant the right to cross‑examine witnesses.  See U.S. Const. Amend. VI; Tex. Const. Art. I, ' 10.  However, the trial court has the discretion to limit the scope of cross‑examination to avoid harassment, prejudice, confusion of the issues, endangering the witness, and the injection of cumulative or collateral evidence.  Ho v. State, 171 S.W.3d 295, 304 (Tex. App.CHouston [14th Dist.] 2005, pet. ref=d) (citing Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986)).  We review a trial court=s decision to limit cross‑examination under an abuse of discretion standard.  Id. (citing Love v. State, 861 S.W.2d 899, 903 (Tex. Crim. App. 1993)).

First, appellant complains that the trial court continually sustained the State=s objections, and thus, engaged in a Atag team@ effort with the State to disrupt his cross-examination of Betty.  Appellant lists numerous record references where the trial court allegedly Awrongfully@ sustained the State=s objections, but he does not explain why the objections were improperly sustained.  Without a showing that the trial court improperly sustained the objections, we cannot conclude that the trial court improperly limited cross-examination simply because it continually sustained objections.

Next, appellant complains that the trial court discontinued his initial cross-examination of Betty and resumed it later, and, therefore, broke the continuity while he was Achipping away@ at Betty=s credibility.  However, Texas Rule of Evidence 611 provides, in pertinent part, that a trial court Ashall exercise reasonable control@ over the order of interrogating witnesses to Amake the interrogation and presentation effective for the ascertainment of the truth@ and Aprotect witnesses from harassment . . . .@  Tex. R. Evid. 611(a).  The record reflects that the trial court discontinued appellant=s initial cross-examination of Betty because after at least four hours in one day, the seventy-three-year-old witness was Aawfully tired,@ shaky, and not feeling well.  The trial court allowed appellant to resume the cross-examination when Betty returned five days later.  Considering Betty=s age and condition, the trial court did not abuse its discretion by discontinuing the cross-examination and resuming it later.

Finally, appellant contends the trial court improperly questioned Betty, effectively serving as prosecutor and undermining appellant=s ability to defend himself.  However, in the instances cited, the trial court actually assisted appellant by suggesting how to properly frame his questions to avoid an objection or obtain a responsive answer.^[2]  Therefore, these Aquestions@ did not undermine appellant=s ability to defend himself.  See Ross v. State, 800 S.W.2d 262, 265 (Tex. App.CHouston [14th Dist.] 1990, pet. ref=d) (finding no error in trial court=s asking witness a question during defendant=s cross-examination to clarify defendant=s questions because trial court did not act as litigant or convey its opinion of the case).  Appellant=s first issue is overruled.

III.  Admission of Evidence

In his second, fifth, and tenth issues, appellant argues the trial court erred by admitting  certain evidence.^[3]  We review the trial court=s admission of evidence under an abuse of discretion standard.  Torres v. State, 71 S.W.3d 758, 760 (Tex. Crim. App. 2002).  Unless the trial court=s ruling falls outside the zone of reasonable disagreement, we will not disturb it.  Id.

A.        Dismemberment Evidence in General

Appellant contends the trial court erred by generally admitting evidence that he dismembered Bill=s body because it was irrelevant and alternatively, any relevance was substantially outweighed by the danger of unfair prejudice.^[4]  See Tex. R. Evid. 403.

1.         Relevancy

Appellant essentially contends that the dismemberment evidence was irrelevant because it concerns an extraneous offenseCabuse of corpse.  Although evidence of other crimes, wrongs, or acts is not admissible to prove a person=s character to show he acted in conformity therewith, the evidence may be admissible if relevant for another purpose, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.  Tex. R. Evid. 404(b).^[5]  This list of exceptions is not exclusive.  Prible v. State, 175 S.W.3d 724, 731 (Tex. Crim. App. 2005).  One recognized exception is evidence of an extraneous offense tending to show Aconsciousness of guilt.@  See Ransom v. State, 920 S.W.2d 288, 299 (Tex. Crim. App. 1996) (op. on rehearing); Torres v. State, 794 S.W.2d 596, 598B99 (Tex. App.C Austin 1990, no pet.).  Criminal acts designed to reduce the likelihood of prosecution, conviction, or incarceration for the charged offense are admissible under Rule 404(b) to show Aconsciousness of guilt.@  Ransom, 920 S.W.2d at 299. Specifically, attempts by the defendant to suppress evidence are admissible to prove the defendant committed the charged offense.  See Rodriguez v. State, 577 S.W.2d 491, 492B93 (Tex. Crim. App. 1979); Torres, 794 S.W.2d at 598B99.

Here, appellant=s dismemberment of Bill=s body shows an attempt to conceal evidence of the murder and avoid detection.  ADismemberment of a person=s body after killing him is hardly the action of an innocent accused, and evidence of such is probative of guilt.@  See Schexnider v. State, 943 S.W.2d 194, 202 (Tex. App.CBeaumont 1997, no pet.).  Thus, the dismemberment evidence was relevant to prove appellant=s Aconsciousness of guilt@ with respect to Bill=s murder.  See id. (holding evidence that defendant dismembered victim=s corpse after murder was admissible to show Aconsciousness of guilt@ and defendant=s attempt  to conceal his crime).  Accordingly, the trial court did not abuse its discretion by finding the dismemberment evidence was relevant and admissible under Rule 404(b).

2.         Rule 403

Appellant also contends the dismemberment evidence was inadmissable under Texas Rule of Evidence 403 because it was unfairly prejudicial.  Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice.  Tex. R. Evid. 403.  A trial court should consider the following factors when conducting a Rule 403 Abalancing test@: (1) the probative value of the evidence; (2) the potential to impress the jury in some irrational, yet indelible, way; (3) the time needed to develop the evidence; and (4) the proponent=s need for the evidence.  Erazo v. State, 144 S.W.3d 487, 489 (Tex. Crim. App. 2004); Mozon v. State, 991 S.W.2d 841, 847 (Tex. Crim. App. 1999).

Here, the first, third, and fourth factors of the Rule 403 Abalancing test@ weigh in favor of admissibility.  With respect to the first factor, as we have discussed, the dismemberment evidence had probative value because it demonstrated appellant=s attempts to conceal evidence of the crime.  With respect to the third factor, the State spent considerable time presenting evidence that appellant dismembered the body.  However, much of the evidence was circumstantial, such as appellant=s purchase of supplies and the deputies= finding the supplies and body parts in the home; thus, the State needed significant evidence to prove appellant dismembered the body.  Further, the large volume of evidence was necessary to show the lengths to which appellant went to dismember the body, such as keeping his mother captive, purchasing supplies, hiding various body parts in the home, and burying other body parts.

When addressing the fourth factor, we should answer three sub-questions:  (1) does the proponent have other available evidence to establish the fact of consequence that the evidence is admissible to show?; (2) if so, how strong is that other evidence?; (3) and is the fact of consequence related to an issue in dispute?  Erazo, 144 S.W.3d at 495B96.  The State had other strong evidence to prove appellant murdered Bill including Betty=s testimony.  However, appellant suggested at trial that Betty murdered Bill.  Appellant and Betty were the only persons present when Bill was murdered.  Therefore, the State needed evidence that appellant dismembered the body to prove appellant, not Betty, murdered Bill.

Only the second factor weighs somewhat in favor of exclusion.  However, although the facts of dismemberment are generally gruesome and would tend to leave an emotional impression on the jury, this factor is not compelling enough to outweigh the other factors.  Accordingly, the trial court did not abuse its discretion by concluding that the probative value of the dismemberment evidence was not substantially outweighed by the danger of unfair prejudice.  See Schexnider, 943 S.W.2d at 202 (holding trial court did not abuse its discretion by overruling defendant=s Rule 403 objection to evidence that he dismembered murder victim=s corpse; although the general public tends to have Arepulsion and horror@ toward such an offense, the evidence refuted defendant=s claim that he acted in self-defense); see also Santellan v. State, 939 S.W.2d 155, 169B70 (Tex. Crim. App. 1997) (holding trial court did not abuse its discretion by overruling defendant=s Rule 403 objection to evidence that he had sex with murder victim=s corpse; although the evidence would potentially affect jury in an emotional way and State spent significant time on the subject, the State had a vital need for the evidence to prove defendant=s intent to kidnap victim).

B.        Particular Dismemberment Evidence

Appellant also challenges admission of the following items of dismemberment evidence:

1.         APlausible Deniability@ Notes

Although appellant contends the APlausible Deniability@ notes were irrelevant, he offers no reason other than arguing they concern dismemberment in general.^[6]  Regardless, the APlausible Deniability@ notes were particularly compelling.  The title alone is significant.  Moreover, the notes appear to outline a schedule for obtaining supplies, dismembering the body, and cleaning the scene.^[7]  Therefore, the notes demonstrate appellant was so zealous to conceal evidence of the crime that he made a schedule for doing so.  Accordingly, the trial court did not abuse its discretion by finding the notes were relevant.

2.         The Sawzall

Appellant further contends the trial court improperly admitted the Sawzall found in the Bairds= home because it was irrelevant; however, he again offers no reason it was irrelevant other than arguing it concerned dismemberment in general.  Nonetheless, the Sawzall is clearly relevant considering the State asserted that it was used to dismember the body.  In addition, appellant complains that the State presented a live demonstration of a Sawzall while questioning a deputy.   This Sawzall used for demonstrative purposes was not the one found in the Bairds= home and was not admitted into evidence.  Although appellant objected to admission of dismemberment evidence, he did not object to the live demonstration of this Sawzall.  Therefore, he did not preserve error on this complaint.  See Tex. R. App. P. 33.1(a).

3.         Photograph of Severed Head

Appellant suggests the trial court should have excluded an autopsy photograph of Bill=s severed head pursuant to Rule 403.  When determining whether the relevance of photographs is substantially outweighed by the danger of unfair prejudice, we consider additional factors including the number of photographs, their size, their detail, whether they are in color or are black and white, whether they are gruesome, whether any bodies are clothed or naked, and whether the body has been altered by autopsy.  Erazo, 144 S.W.3d at 489; Hayes v. State, 85 S.W.3d 809, 815 (Tex. Crim. App. 2002).  In addition, autopsy photographs are generally admissible unless they depict mutilation of the victim caused by the autopsy itself.  Hayes, 85 S.W.3d at 816.

Here, these additional factors weigh in favor of the trial court=s decision to admit the photograph.  The copy of the photograph in the appellate record is smallCthree by five inchesCand is black and white.^[8]  Bill=s severed head is lying face-up on a table, and there are cuts around the mouth area.  However, the photograph shows no alterations made by the autopsy because the head was already severed and the mouth area was already cut when the body was brought in for autopsy.  The photograph is gruesome, but no more gruesome than the facts of the dismemberment itself.  See Sonnier v. State, 913 S.W.2d 511, 519 (Tex. Crim. App. 1995) (recognizing trial court does not err merely by admitting gruesome photograph when the gruesomeness Aemanates from nothing more than what the defendant has himself done.@).  Further, the trial court noted that although the autopsy photographs showing Bill=s body parts were extreme, the State limited the number of photographs it offered.

Moreover, with respect to the Rule 403 balancing test in general, the trial court recognized that appellant had insinuated that Betty murdered Bill and dismembered the body.  The trial court stated that the autopsy photographs, including the photograph of Bill=s severed head, showed that someone of Betty=s size and physical condition was not capable of operating the Sawzall in a manner that would make the clean cuts depicted in the photographs.  Accordingly, although the photograph of the head is gruesome, the trial court did not abuse its discretion by finding that its probative value was not outweighed by the danger of unfair prejudice.

C.        Testimony Regarding a Silencer

Appellant also contends the trial court improperly admitted evidence of a Asilencer.@ At trial, Deputy James Lovett, who investigated the offense, was asked about a photograph depicting an object recovered from appellant=s bedroom.  The State asked Deputy Lovett, AWhat did it appear to be?@  He responded, AAppeared to be a homemade silencer.@  Appellant made a Aspeculation@ objection to this question, which the trial court overruled.^[9]  The trial court did not abuse its discretion by finding the question did not call for Aspeculation@ considering Officer Lovett was asked what the item Aappeared@ to beCnot what the item was.

D.        Confession/Suicide Note

Appellant contends the trial court improperly admitted a confession/suicide note  found in his truck after his arrest.^[10]   The note was admitted during the punishment phase of the trialCnot during the guilt/innocence phase.  The only objection at trial that possibly comports with a complaint on appeal is a Arelevancy@ objection.^[11]  However, on appeal, appellant challenges only the guilty verdictCnot his punishment.  Thus, he offers no argument as to how the note was irrelevant to the punishment determination or how he was harmed by admission of the note.  Consequently, he has waived appellate review regarding admission of the note.  See Tex. R. App. P. 38.1(h) (requiring that brief contain argument with appropriate citations to authorities and the record ); Cardenas v. State, 30 S.W.3d 384, 393 (Tex. Crim. App. 2000) (finding appellant waived appellate review of issue by failing to include argument and authorities).

E.        Testimony Regarding the Confession/Suicide Note

Appellant later seems to acknowledge that the confession/suicide note was not admitted during the guilt/innocence phase, but instead contends the trial court erred by admitting hearsay testimony regarding the note during the guilt/innocence phase.  Deborah Jacobs testified that when she met appellant in Dallas a few days after the offense, he asked her for some paper and a pen to write a suicide note.  However, at trial, appellant did not object to this testimony, and, thus, has waived his complaint that this testimony was hearsay.  See Tex. R. App. P. 33.1(a).^[12]  We overrule appellant=s second, fifth, and tenth issues.

IV.  Notice of Pretrial Hearings and Funds To Hire Experts

Although appellant=s third issue is couched in terms of Ajudicial bias@ and Apattern of prejudice,@ he repeats many of his other complaints but also asserts the trial court did not give him adequate notice of pretrial hearings and denied him funds to hire experts.

A.        Notice of Pretrial Hearings

Appellant asserts the trial court did not give him ten-days notice of the hearings on his pretrial motions, including his motions to suppress, as required by article 28.01 of the Texas Code of Criminal Procedure.  However, he misreads article 28.01.  Article 28.01 provides that a trial court may set a pre‑trial hearing to consider certain motions, including a motion to suppress.  Tex. Code Crim. Proc. Ann. art. 28.01, ' 1 (Vernon 1989).  Whether to hold a hearing on a pretrial motion to suppress rests within the trial court=s discretion; it can instead elect to address the admissibility of the evidence at issue during the trial after a proper objection is lodged.  See Calloway v. State, 743 S.W.2d 645, 649 (Tex. Crim. App. 1988).  However, when the trial court does set a pretrial hearing, Aany such preliminary matters not raised or filed seven days before the hearing will not thereafter be allowed to be raised or filed, except by permission of the court for good cause shown;  provided that the defendant shall have sufficient notice of such hearing to allow him not less than 10 days in which to raise or file such preliminary matters.@  Tex. Code Crim. Proc. Ann. art. 28.01, ' 2 (Vernon 1989).  Article 28.01, section 2 does not require the trial court to give ten days notice of every pretrial hearing.   See id.; Postell v. State, 693 S.W.2d 462, 465 (Tex. Crim. App. 1985); see also Sells v. State, 121 S.W.3d 748, 763 (Tex. Crim. App. 2003).  Rather, article 28.01, section 2 provides that a defendant will not be bound to the seven-day limitation for raising or filing motions unless he has been accorded sufficient notice of the hearing to allow him at least ten days in which to raise or file such motions.  See Tex. Code Crim. Proc. Ann. art. 28.01, ' 2; Postell, 693 S.W.2d at 465; see also Sells, 121 S.W.3d at 763.

Here, appellant filed numerous pretrial motionsC sixty-eight, according to appellant.  Just before trial started, the trial court held two hearings and considered appellant=s motions in limine and several motions to suppress.  There is no indication the trial court refused to consider any other motions because they were filed within seven days of the hearings; appellant filed most of his motions more than seven days before the hearings.  Rather, the record indicates the trial court simply exercised its discretion to decline to hear most of appellant=s motions at that time and instructed appellant that he needed to object as the evidence was offered during trial.  Therefore, appellant has not demonstrated that the trial court violated article 28.01.

B.        Funds to Hire Experts

Appellant asserts the trial court denied him funds as an indigent to hire experts, particularly a private detective to locate witnesses.  However, the record refutes this assertion.  In response to appellant=s motion, the trial court allowed funds for an investigator and ordered that appellant be allowed to meet with the investigator while in custody.  In response to another motion, the trial court allowed funds for a psychiatric expert.  Accordingly, we overrule appellant=s third issue.

V.  Jury Argument

In his fourth issue, appellant contends that the State made improper jury argument in three instances: (1) an argument that the jury should not be Aduped@ by appellant; (2) an argument that Amaybe he=d take care of his mother later@; and (3) operation of a Sawzall during argument.^[13]  However, appellant did not preserve error as to these complaints.  To preserve error regarding improper jury argument, a party must timely object and pursue his objection to an adverse ruling.  Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996).  With respect to the arguments that the jury should not be Aduped@ and Amaybe he=d take care of his mother later,@ appellant did not object at all.  With respect to the Sawzall demonstration, appellant stated AI object@ but provided no grounds and obtained no ruling.  Consequently, we overrule his fourth issue.

VI.  Access To Evidence and Withholding of Evidence

Appellant=s sixth issue appears to be two-part: the trial court denied him access to the evidence that was introduced at trial, and the State withheld other allegedly exculpatory evidence.

A.        Access to Evidence

Although it is not clear what appellant means by Aaccess,@ he suggests he was not allowed to inspect the evidence.  Article 39.14(a) addresses discovery in a criminal case.  The former version of article 39.14(a) applicable to this case provided in pertinent part that A[u]pon motion of the defendant showing good cause . . . the [trial court] may order the State before or during trial . . . to produce and permit the inspection@ of non-privileged evidence.  Act of May 21, 1999, 76^th Leg., R.S., ch. 578, 1999 Tex. Gen Laws 3118 (amended 1995) current version at Tex. Code Crim. Proc. Ann. art. 39.14(a) (Vernon Supp. 2005)) (emphasis added).  Under former article 39.14(a), a defendant did not have a general right to discovery of evidence in the State=s possession.  See Quinones v. State, 592 S.W.2d 933, 940 (Tex. Crim. App. 1980); Saldivar v. State, 980 S.W.2d 475, 496 (Tex. App.CHouston [14th Dist.] 1998, pet. ref=d).  Rather, former article 39.14(a) provided limited discovery, independent of the constitutional right of access to exculpatory evidence.  Saldivar, 980 S.W.2d at 496.  The decision on what was discoverable was committed to the discretion of the trial court.  See Quinones, 592 S.W.2d at 940.^[14]  A trial court abused its discretion only if it failed to permit discovery of evidence that was material to the accused=s defense.  See id. at 940B41.

Nonetheless, approximately two months before trial, the trial court entered a ADiscovery Order@ allowing appellant discovery of virtually all the State=s evidence.  The trial court required the State to furnish some evidence to appellant, allow inspection of some evidence before trial, and allow inspection of other evidence at the time of trial.  Further, this discovery order was entered on the same day that the trial court allowed appellant to proceed pro se.  The court noted on the discovery order that the State=s file had been open to appellant=s previous attorney through that day.  Therefore, the trial court allowed appellant more discovery than required at that time.

At another point, appellant suggests he was denied Aaccess@ to the evidence because he was not allowed physical possession to obtain an Aindependent analysis.@  However, former and current article 39.14(a) provide[d] that A[n]othing in this Act shall authorize the removal of such evidence from the possession of the State, and any inspection shall be in the presence of a representative of the State.@  Act of May 21, 1999, 76^th Leg., R.S., ch. 578, 1999 Tex. Gen Laws 3118 (amended 1995);  Tex. Code Crim. Proc. Ann. art. 39.14(a).  Accordingly, appellant was not entitled to physical possession of the evidence.

B.        Alleged Withholding of Exculpatory Evidence

Appellant also asserts that the State withheld the following exculpatory evidence:  comparison of unidentified fingerprints found at the scene with Bill=s and Betty=s fingerprints and a national fingerprint database; analysis of Betty=s bloody clothing and shoes; documents relating to appellant=s previous legal name change; proof of ownership for the murder weapons; the investigating deputies= notes; the alleged silencer and any analysis; and ballistics analysis concerning a Asecond gun.@

Appellant is apparently asserting a Brady violation.  When the State withholds evidence favorable to the defendant, due process is violated if the evidence is material to either guilt or punishment, irrespective of the good faith or bad faith of the prosecution. Brady v. Maryland, 373 U.S. 83, 87 (1963); Wyatt v. State, 23 S.W.3d 18, 27 (Tex. Crim. App. 2000).  To invoke Brady, the accused must show that (1) the State failed to disclose evidence, regardless of the prosecution=s good or bad faith, (2) the withheld evidence is favorable to the accused, and (3) the evidence is material; that is, there is a reasonable probability that had the evidence been disclosed, the outcome of the trial would have been different.  Hampton v. State, 86 S.W.3d 603, 612 (Tex. Crim. App. 2002); Wyatt, 23 S.W.3d at 27.

Appellant cites various testimony that purportedly demonstrates the listed items existed, but the State failed to disclose them.  However, the record reflects that at least some of these items did not even exist.^[15]  With respect to the other items, appellant has not shown that the State failed to disclose them.  As we have discussed, the trial court allowed appellant liberal discovery of the State=s file.  In fact, contrary to appellant=s assertion, the record affirmatively reflects that the State provided appellant a copy of the ballistics report on the guns.^[16]

Finally, to the extent the State did not disclose any of the remaining items, appellant has not shown they were favorable to him and material as required to invoke Brady.  Except for the silencer, appellant offers no explanation whatsoever as to why the items were favorable and material, and it is not readily apparent that any of the items were favorable and material.  Appellant argues that if he had been given access to the alleged silencer, he could have shown it was merely a water filter.  However, when Deputy Lovett reviewed a photograph of this object at trial, he agreed it was a filter but indicated the filter was converted to a homemade silencer.^[17]  Because Deputy Lovett agreed the object was a filter, any examination by appellant would not have negated that it was also used as a silencer.  Therefore, appellant has not shown that examination of the silencer would have been exculpatory.  We overrule his sixth issue.

VII.  Jury Note

In his seventh issue, appellant asserts the trial court failed to comply with article 36.27 of the Texas Code of Criminal Procedure when it responded to a jury note.^[18]  Article 36.27 which governs jury communications with the trial court provides in pertinent part:

The court shall answer any such communication in writing, and before giving such answer to the jury shall use reasonable diligence to secure the presence of the defendant and his counsel, and shall first submit the question and also submit his answer to the same to the defendant or his counsel or objections and exceptions, in the same manner as any other written instructions are submitted to such counsel, before the court gives such answer to the jury, but if he is unable to secure the presence of the defendant and his counsel, then he shall proceed to answer the same as he deems proper.  The written instruction or answer to the communication shall be read in open court unless expressly waived by the defendant. 

Tex. Code Crim. Proc. Ann. art. 36.27 (Vernon 1981).  Article 36.27 further provides that AAll such proceedings in felony cases shall be a part of the record and recorded by the court reporter.@  Id.

During deliberations, the jury sent a note requesting three items of evidence including the Asuicide note.@  With respect to the Asuicide note,@ the trial court wrote Anot in evidence@ on the jury=s request.  According to appellant, the trial court did not read this response to the jury=s note in open court and in appellant=s presence as required by article 36.27.  The appellate record contains no record of a proceeding under article 36.27.  However, even if the trial court did not comply with article 36.27, any error was harmless.  When a trial court=s communication with the jury does not amount to additional instructions, failure to comply with article 36.27 is not reversible error.  McFarland v. State, 928 S.W.2d 482, 517B18 (Tex. Crim. App. 1996), overruled on other grounds by Mosley v. State, 983 S.W.2d 249, 263 (Tex. Crim. App. 1998).  Here, the trial court=s response that a requested item was Anot in evidence@ does not amount to additional instructions; thus, any failure to comply with article 36.27 was not reversible error.  See Rodriguez v. State, 625 S.W.2d 101, 102B03 (Tex. App.CSan Antonio 1981, pet. ref=d) (finding trial court=s non-compliance with article 36.27 when refusing jury=s request for exhibits that were not admitted was not reversible error).  Appellant=s seventh issue is overruled.

VIII.  Alleged AJudicial Bias@

In his multifarious eighth, ninth, and eleventh issues, appellant argues that the trial court demonstrated Ajudicial bias@ by controlling the courtroom in a manner that destroyed his presumption of innocence and treating him with prejudice.  Appellant lists numerous actions by the trial court to support these contentions.  Again, he primarily repeats his other complaints, but we discern the following additional complaints:

A.        Courtroom Seating

According to appellant, he was ordered to sit in a particular chair in direct view of all the jurors instead of in a chair with a less direct view.  However, he does not cite any record references showing the trial court required him to sit in a particular chair, much less show how his sitting in a particular chair destroyed his presumption of innocence.  Consequently, he has waived appellate review of this complaint.  See Tex. R. App. P. 38.1(h); Alvarado v. State, 912 S.W.2d 199, 210 (Tex. Crim. App. 1995) (finding appellant waived appellate review of issue by failing to cite pages in the record where alleged errors were shown).

B.        Presence of Deputies

Appellant complains that the trial court had armed deputies stand behind him while he was seated.  Further, appellant complains that a deputy would Aescort@ him when he moved around the courtroom, thus destroying his presumption of innocence.  To the contrary, in response to appellant=s objection, the trial court remarked that the deputies did not stand behind appellant, but were present in the courtroom as is customary.  Nonetheless, the trial court did remark that it needed the deputies to be aware of appellant=s movements because he was representing himself and had full access to the courtroom.  A trial court generally has broad power to control its proceedings.  Tex. Gov=t Code Ann. ' 21.001(b) (Vernon 2004); State v. Poe, 98 S.W.3d 194, 199 (Tex. Crim. App. 2003).  Appellant has not shown that the trial court abused this power.

C.        Trial Court=s Admonishments

Appellant contends the trial court admonished him in front of the jury to stand when addressing the court and ask permission to move around the courtroom. Although the trial court has inherent power to control its proceedings, if it is necessary for the trial court to reprimand counsel, it is preferable to do so outside the jury=s presence and hearing.  See Gonzales v. State, 2 S.W.3d 600, 607 (Tex. App.CTexarkana 1999, pet. ref=d).  However, to constitute reversible error, a trial court=s comment must be calculated to injure the rights of the accused, or it must appear from the record that the accused has not had a fair and impartial trial.  Id.  Here, the trial court=s admonishments in front of the jury that appellant observe generally-recognized courtroom decorum were not calculated to injury appellant=s rights and did not deprive him of a fair and impartial trial.

D.        Trial Judge=s Tone of Voice, Demeanor, and Gestures

Appellant asserts that the trial court=s tone of voice and demeanor were more deferential towards the State than appellant, and the trial court nodded her head Ayes@ during the State=s closing argument.  However, complaints regarding the trial court=s tone of voice, demeanor, and physical gestures are not determinable from the record, and, thus, appellant has presented nothing for our review.  See Green v. State, 912 S.W.2d 189, 192 (Tex. Crim. App. 1995) (recognizing appellate court will not decide case based on speculation about matters not shown in the record).  Similarly, appellant asserts that the trial court was curt, rude, and demeaning to him in front of the jury.  However, he cites no specific instances in which he was treated in this manner, but rather cites the entire record of the pre-trial hearings and his entire cross-examination of witnesses during trial.  We have no duty to pore through the two volumes of record from the pre-trial hearings and the seven volumes of record from the trial to identify the instances complained of.  See Alvarado, 912 S.W.2d at 210.  Without specific record references, this complaint is inadequately briefed and is waived.  See Tex. R. App. P. 38.1(h); Alvarado, 912 S.W.2d at 210.

E.        Denial of Motion for Substitute Court-Appointed Attorney

Appellant complains that the trial court forced him to represent himself by denying his motion for a substitute court-appointed attorney.  However, appellant does not explain why any denial was improper and does not cite any legal authority.  Therefore, this complaint is inadequately briefed and is waived.  Tex. R. App. P. 38.1(h); Cardenas, 30 S.W.3d at 393.  F.           Evidentiary Rulings

Appellant contends the trial court Aallowed evidence from illegal seizure without specific mention in the warrant.@  Appellant devotes one sentence to this complaint; he  cites no record references to show what seizure or evidence he challenges and cites no legal authority.  Accordingly, this complaint is inadequately briefed and is waived.  See Tex. R. App. P. 38.1(h); Cardenas, 30 S.W.3d at 393; Alvarado, 912 S.W.2d at 210.

Finally, appellant asserts the trial court showed bias for the State during appellant=s cross-examination of witnesses because it Asustained objections@ even when no objection was made by the State and coached the State on how to object.  He cites two instances in which the trial court apparently anticipated the State=s Ahearsay@ objection and stated Asustained@ before the State made the objection.  He also cites one instance when the trial court overruled the State=s objection, but noted appellant=s question had been asked and answered and so disallowed the question on that ground. However, these instances do not show bias considering the trial court also suggested several times how appellant should frame questions to avoid objections.  We overrule appellant=s eighth, ninth, and eleventh issues.

IX.  Factual Sufficiency

In his twelfth issue, appellant contends the evidence is factually insufficient to support the jury=s verdict.  In reviewing the factual sufficiency of the evidence, we consider all of the evidence in a neutral light and will set aside the verdict only if (1) the evidence supporting the verdict, if taken alone, is too weak to sustain the finding of guilt beyond a reasonable doubt, or (2) the contrary evidence is so strong that the State could not have met its burden of proof beyond a reasonable doubt.  Zuniga v. State, 144 S.W.3d 477, 484B85 (Tex. Crim. App. 2004).

A person commits murder if he intentionally or knowingly causes the death of an individual; or intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual.  Tex. Pen. Code Ann. ' 19.02(b)(1), (2) (Vernon 2003).  Here, the State presented significant evidence that appellant murdered Bill including Betty=s testimony that appellant shot Bill, the evidence that appellant dismembered Bill=s body, the evidence that at least one of Bill=s wounds was inflicted by a gun found in appellant=s bedroom, the APlausible Deniability@ notes, the neighbor=s testimony that appellant had changed his appearance two days after the murder, appellant=s statement to his friend that he had Adone something bad@ and had buried body parts, and his statement to his ex-wife that something had happened to Bill.

Despite these revelations, appellant argues the evidence is factually insufficient to prove he murdered Bill.  He asserts that only Bill=s first gunshot wound was fatal, but Betty did not see appellant fire the first shot; therefore, there is insufficient evidence that he inflicted the fatal wound.  We disagree.  Based on the condition of Bill=s body, the medical examiners were able to detect only two gunshots wounds: the shot through the breastbone, aorta and lung; and the shot through the back of the head.  However, they testified that both wounds were fatal, and Bill was alive when he received both wounds.  Betty did see appellant inflict at least one of these wounds because she saw appellant shoot Bill in the back of the head.  Moreover, although Betty did not see appellant fire the first shot, the jury could have rationally inferred he fired the first shot.  Betty testified that immediately before the first shot, Bill stated ASo now you are going to kill me?@  Betty turned around and saw appellant.  Only Bill, Betty, and appellant were in the home at that time.  Further, Betty saw appellant leave the room, immediately return, and shoot Bill.  Accordingly, the evidence is factually sufficient to support the verdict.  We overrule appellant=s twelfth issue.

X.  Motion to Abate

On December 14, 2005, appellant filed a motion to abate this appeal which we ordered to be submitted with the case.  Essentially, appellant requests that we abate because the trial court did not hold a Jackson v. Denno hearing to determine the voluntariness of the confession/suicide note found in appellant=s truck and did not make findings of fact and conclusions of law to support a determination that the confession/suicide note was voluntary.

When a defendant challenges admission of his statement on the ground that it was involuntary, the trial court must hold a hearing outside the presence of the jury concerning the admissibility of the statement.  Jackson v. Denno, 378 U.S. 368, 380 (1964); Alvarado, 912 S.W.2d at 211; Tex. Code Crim. Proc. Ann. art. 38.22, '6 (Vernon 2005); see Tex. R. Evid. 104(c).  At the hearing, the State bears the burden to prove by a preponderance of the evidence that the statement was freely and voluntarily made. Alvarado, 912 S.W.2d at 211.  Here, appellant filed motions to suppress the confession/suicide note on several grounds including voluntariness.  The trial court held a pre-trial hearing to consider admission of the note and ruled that it was admissible.  Although the trial court did not specifically state that the hearing was a Jackson v. Denno hearing, the hearing encompassed the voluntariness of the confession.  At the beginning, the trial court acknowledged that there were Aa couple of issues@ concerning the note, and the State presented evidence that it was voluntary.^[19]

Nonetheless, appellant contends in his motion to abate that the hearing was not a Jackson v. Denno hearing because the trial court addressed the legality of the search in which the note was found, but not the voluntariness of the note.  The trial court did rule at the end of the hearing that the note was admissible because the search and seizure were proper and did not explicitly state that the note was voluntary.  However, it was appellant who shifted the focus of the hearing to the legality of the search and seizure.  Appellant offered no evidence that the note was involuntary to rebut the State=s evidence.  To the contrary, his own testimony at the hearing demonstrated that the note was voluntary and instead focused on whether the search of the truck was legal.^[20]  Further, in his closing statement at the hearing, appellant objected to admission of the note on the ground that it was obtained through an illegal search and seizure and did not argue that the note was involuntary.  Consequently, the trial court complied with Jackson v. Denno and article 38.22 by affording appellant a hearing at which the State presented evidence that the note was voluntary.  The trial court did not violate Jackson v. Denno and article 38.22 by ultimately directing its comments to the legality of the search and seizure considering that at the hearing, appellant effectively abandoned his initial claim that the note was involuntary.^[21]

Appellant also requests abatement because the trial court did not make findings of fact and conclusions of law to support a determination that the note was voluntary.  When a defendant challenges the voluntariness of a statement, article 38.22 requires the trial court to make written findings of fact and conclusion of law as to whether the challenged statement was voluntary.  Tex. Code Crim. Proc. Ann. art. 38.22, '6; Urias v. State, 155 S.W.3d 141, 142 (Tex. Crim. App. 2004).  When the trial court has not made such findings and conclusions, the appellate court must abate the appeal and instruct the trial court to make the required findings and conclusions.  Urias, 155 S.W.3d at 142; Wicker v. State, 740 S.W.2d 779, 784 (Tex. Crim. App. 1987).  However, we conclude abatement is not required here.

First, as we have discussed, appellant effectively abandoned his initial challenge to the voluntariness of the note once the trial court afforded him a hearing.  Moreover, the purpose of requiring the trial court to file findings and conclusions is to provide the appellate court with a basis upon which to review the trial court=s ruling that a statement was voluntary.  See Wicker, 740 S.W.2d at 783 (Tex. Crim. App. 1987); Zervos v. State, 15 S.W.3d 146, 154 (Tex. App.CTexarkana 2000, pet. ref=d); Nichols v. State, 810 S.W.2d 829, 831 (Tex. App.CDallas 1991, pet. ref=d); see also Urias, 155 S.W.3d at 142 (recognizing when requiring abatement that the court of appeals made its decision concerning voluntariness of defendant=s confession without the benefit of the requisite findings and conclusions).  Here, appellant has not presented any issue in his appellate brief challenging the voluntariness of the note.  In fact, the note was admitted only during the punishment phase, and appellant does not challenge the punishment determination. Rather, appellant merely filed a motion to abate after his brief was filed and this case was submitted.  Therefore, abatement for the trial court to file findings and conclusions would serve no purpose other than delaying resolution of this appeal.  Accordingly, we deny appellant=s motion to abate.

The judgment of the trial court is affirmed.

/s/        Charles W. Seymore

Justice

Judgment rendered and Memorandum Opinion filed May 11, 2006.

Panel consists of Justices Hudson, Frost, and Seymore.

Do Not Publish C Tex. R. App. P. 47.2(b).

---

^[1]  Initially, we note that appellant, who has appeared pro se during the guilt/innocence phase of his trial and on appeal, presents many issues that are confusing, multifarious, and overlapping, but we have tried to discern all his complaints.  However, as we will discuss, some issues are inadequately briefed to the extent that he has waived appellate review. See Kindley v. State, 879 S.W.2d 261, 264 (Tex. App.CHouston [14th Dist.] 1994, no pet.) (stating pro se litigant is held to same standards as attorney and must comply with briefing rules).

^[2]  Appellant cites the following instances: (1) Appellant asked Betty, ADid I immediately come and take advantage of your invitation [to live with the Bairds] or did I hesitate?@  After the State made a hearsay objection, the trial court stated to Betty, AWhen did he come to live with you?  You may answer that question.@;  (2) The State objected to appellant=s question about the floor plan of the home as Aleading.@  The trial court responded, ACross-examination can be leading.  You can ask the leading questions, counsel.  Is this wall four feet long or seven.  And the witness can say yes or no.@; and (3) Betty gave a non-responsive answer when appellant asked about a chair.  The trial court instructed Betty: AIf you=ll just answer his questions.  Was the chair there that night?  Do you know?  It=s okay if you don=t know.@

^[3]  Although appellant contends in these issues that the trial court violated his Aconstitutional rights@ and allowed Aa tainted jury, jury irrationality and a wrongful conviction,@ he actually challenges the admission of evidence.

^[4]Appellant=s contention regarding dismemberment evidence is difficult to address.  He intermingles a complaint that all dismemberment evidence in general, such as Adismemberment photos and discussion,@ was inadmissible with a complaint that particular items of evidence were inadmissible.  Appellant filed a motion to suppress all dismemberment evidence as irrelevant and unfairly prejudicial.  At a pre-trial hearing, the trial court apparently addressed this motion to suppress while also addressing appellant=s motion in limine.  The trial court overruled the Arelevancy@ objection, but appellant did not argue, or obtain a ruling on, his Rule 403 objection.  Thus, appellant did not preserve error on Rule 403 grounds as to all dismemberment evidence.  See Tex. R. App. P. 33.1(a).  However, during trial, he objected to some dismemberment evidence on Rule 403 grounds.   Nonetheless, for conciseness, we will address his contention that all dismemberment evidence was irrelevant and inadmissible under Rule 403, and then address his challenge to specific evidence.  On appeal, appellant also suggests the dismemberment evidence in general was hearsay, speculation, and conjecture.  However, appellant did not object and obtain a ruling on these grounds with respect to the dismemberment evidence in general; thus, he did not preserve error on these complaints.  See Tex. R. App. P. 33.1(a); Guevara v. State, 97 S.W.3d 579, 583 (Tex. Crim. App. 2003) (recognizing that objection at trial must comport with complaint on appeal to preserve error).

^[5]  Appellant repeatedly cites Rule 401 which merely defines ARelevant Evidence.@  Tex. R. Evid. 401.  We read his complaint as invoking Rule 404(b) because he contends the evidence concerns an extraneous offense.

^[6]  Appellant also contends the notes were hearsay.  However, he did not object and obtain a ruling on this ground; thus he did not preserve error on this complaint.  See Tex. R. App. P. 33.1(a);  Guevara, 97 S.W.3d at 583.

^[7]  Although the notes are hard to read, they include entries such as Aget ice,@ ALv. to get more tools@ including containers, Acutter,@ blades, odor control supplies, and disinfectant, and ABegin . . . dice process.@

^[8]  If appellant believed the colors in the actual photograph would affect our assessment of prejudice, he should have ensured the original photograph or a color photocopy was included in the record.  See Williams v. State, 958 S.W.2d 186, 196 n.10 (Tex. Crim. App. 1997).

^[9]  On appeal, appellant also suggests the testimony was irrelevant, unfairly prejudicial, and hearsay, but he objected, and thus preserved error, only on his Aspeculation@ complaint.   See Tex. R. App. P. 33.1(a);  Guevara, 97 S.W.3d at 583.

^[10]  In this note, appellant confessed that he killed Bill and dismembered his body and planned to commit suicide.  However, appellant claimed that Bill first pointed a gun at him, and he wrestled the gun from Bill and shot him several times.  Appellant also blamed his state of mind at the time of the shooting on Bill=s allegedly abusive treatment of Betty and appellant.

^[11]  On appeal, appellant asserts the note was hearsay, self-incrimination, and irrelevant.  During a pre-trial hearing on his motion to suppress the note, he objected that it was obtained through an illegal search and/or seizure.  When the note was offered during the guilt/innocence phase, he objected that the note was seized during an illegal search and Anot relevant under 403 of the Rules of Evidence.@

^[12]  Appellant asserts that he requested, and the trial court allowed, a running objection on all evidence seized from his truck.  However, any such objection would concern only the note, not Deborah Jacob=s testimony that appellant asked her for pen and paper to write a note.

^[13]  Appellant complains of the operation of the Sawzall during closing argument in some of his other issues, but we will include this complaint in his fourth issue because it concerns jury argument.

^[14]  Article 39.14 was amended in 2005 to eliminate much of the trial court=s discretion by replacing Amay order@ with Ashall order,@ but the amendment is not applicable to this case.  See Tex. Code Crim. Proc. Ann. art. 39.14(a).

^[15]  An investigating deputy testified that he did not compare unidentified fingerprints with Bill=s and Betty=s fingerprints because Bill=s and Betty=s fingerprints were not on file.  Further, he testified that he searched some of the unidentified fingerprints in the fingerprint system for Harris County, but this system is not a national database.

^[16]  At a hearing just before trial, the trial court inquired whether appellant had a copy of the ballistics report.  The State responded that it had shown the report to appellant=s previous attorney, but the trial court ordered the State to provide another copy to appellant.

^[17]  Apparently, only the photograph, and not the actual object, was admitted into evidence.

^[18]  Appellant complains about the trial court=s response to the jury note again in his tenth issue while also challenging admission of evidence.  We will address his complaint regarding the jury note as his seventh issue.

^[19]  A Harris County deputy testified that Harrison County officers arrested appellant after they found him in his truck.  The Harris County deputy met with appellant shortly after his arrest.  Appellant asked if the officers found the note he left in the truck and said that the note Aexplains everything.@  Subsequently, the officers obtained a search warrant for the truck and found the note during their search.  Therefore, the State presented evidence that appellant=s confession/suicide note could not have resulted from any Aofficial, coercive conduct@ because it was written before the officers even encountered appellant. See Alvarado, 912 S.W.2d at 211 (holding that a statement is involuntary Aonly if there was official, coercive conduct of such a nature that any statement obtained thereby is unlikely to have been the product of an essentially free and unconstrained choice by its maker.@).

^[20]  Appellant testified that immediately after he stepped out of his truck, the officers found the note and asked him what it was.  Therefore, even appellant=s version is evidence that the confession was not the result of any Aofficial, coercive conduct@ because it was written before officers encountered him.

^[21]  When the note was actually admitted during the punishment phase of the trial, appellant reurged  his Aobjections . . . made earlier,@ specifically Aillegal search@ and Anot relevant under 403,@ and again did not argue that the note was involuntary.