*1 DAVIS, Appellant, Irving Alvin Texas.
The STATE of AP-74,393.
No. of Texas. Appeals
Court Criminal 29, 2010.
Sept. 12, 2011.
Rehearing Denied Jan. *4 Morales, Paso, Appel- El
Ruben P. lant. Paso, Stroud,
Lily Atty., Asst. Dist. El Horn, Austin, Atty., Jeffrey L. Van State’s for State.
OPINION JOHNSON, J., opinion delivered the PRICE, MEYERS, the Court which WOMACK, HERVEY, HOLCOMB, and COCHRAN, JJ., joined. 2002, appellant
In June was convicted of in the course of murdering Melissa Medina committing attempting ag- or to commit gravated sexual assault.1 Based on *5 issues set jury’s special answers to the forth in Texas of Criminal Procedure Code 2(b) 37.071, 2(e), §§ the trial Article and appellant to death. Art. judge sentenced 37.071, 2007, § we 2(g).2 In June affirmed to judgment the trial court’s as it related conviction, it appellant’s reversed as it re- punishment, to his and remanded the lated punish- case to the trial court for new hearing. ment Davis v. No. AP- 74,393, 2007 1704071 (Tex.Crim.App. WL 2007)(not 13, designated publica- June tion). trial February In court punishment hearing held a new before a At of that hear- jury. new the conclusion court, ing, acting the trial in accordance jury’s special with the the two answers to issues, again appellant’s punish- assessed Appellant ment at death. now raises nine from the appeal issues on direct second hearing. reviewing ap- After punishment error, pellant’s points of we find them to be affirm trial without merit and judgment. court’s EVIDENCE OF SATANISM one, appellant point argues error that “the trial court erred when it al- indicated, all 19.03(a)(2). 2. Unless otherwise references to § 1. Tex. Penal Code Articles refer to the Texas Code of Criminal Procedure. present any lowed the state to evidence that involve violence at all. And that’s different, just guess, im- their I appellant had become a Satanist while churches or ways practice to this satanism. And so prisoned specifically on death row.” He my to, unless can tie client complains that the trial court erred know, guess I these bad acts that 247, 248, admitting state’s Exhibits they’re going attempt produce, I testimony through permitting think any don’t there’s relevance expert Haley, of state’s witness Donald there.... requiring appellant display n believe, my I based on argument as to the tattoo of a jury pentagram on his different, guess, the various sections of chest. raises both constitution- have, you might satanism that I think claims, statutory arguing al and exactly the problem they’re going that’s trial court violated First Amendment case, to run into in they’re this not to the United States Constitution and know, going they’re going to Rules 401 and 403 of the Texas Rules to— basically try they’re going to trying be Evidence. Because bases his — say the mere fact that he’s single point of than error on more one right, satanist is a bad act its own theory, legal point his entire of error is appropriate that’s not pursuant to Daw- TexRApp. multifarious. P. We 38.1. Delaware.[3] son v. however, will, review his arguments justice. interest The prosecutor responded that the state appellant’s prison intended to introduce review We a trial court’s decision *6 records, writings, “a drawings, penta- and to admit evidence an under abuse of dis gram that body is etched into his that was cretion standard. 247 Walters that, either carved or burned” to show in 204, (Tex.Crim.App.2007). S.W.3d 2006, appellant had declared that he had only The trial court abuses its discretion prosecu- been a Satanist since 2005. The when the decision the zone of lies “outside added, tor “We have evidence that will disagreement.” reasonable Id. in through expert come our witness that trial, anticipating Prior to that the state testify he will about illegal satanists and “attempt would ex- to offer into evidence activities and violent activities that have testimony pert indicating Defendant’s reli- part been committed on the of satanists.” beliefs,” gious appellant filed a motion in prosecutor explained The that “there is no asking limine the trial court to bar testi- prove need for the State to that the Defen- mony that subject. hearing At the on in all engaged illegal dant himself of those limine, the motion in counsel ar- defense acts, only violent that the known group is gued that the state should not be allowed that, to do and that the Defendant is a get into “the issue of satanism” because of that The group.” prosecutor member relevant, it was not it would violate his in appellant’s further stated “belief rights religion to freedom of and freedom being satanism is offered as evidence of his association, of probative and its value was character, systems” to show his belief and by outweighed any prejudicial effect. De- future-dangerousness; how relate to stated, fense counsel further future danger- the issues of character and [Ijt’s my understanding type that the sentencing ousness “are at the heart of the my satanic beliefs that client does pro- phase capital in a murder case.” Follow- are, fact, ing parties’ arguments, fess in nonviolent and do not the trial court 1093, (1992). 3. 503 U.S. 112 S.Ct. 117 L.Ed.2d a naked woman who is bound ings depicts in limine “until such the motion
granted drawing expert gagged, depicts can establish and another state’s] time as [the that, Jury in In the hearing of the woman with a slashed throat. outside note, fact, organiza- appellant in this which de- propensity there is a handwritten my religion suplement appli- ... as “a [sic] this faith or this scribed tion or Satan,” appellant in engaging or an cation to Church illegal [sic] activities pledge allegiance his desire expressed violent activities.” of Satan. state also Church witness, Donald expert The state’s appellant’s grievance offered into evidence Haley, later testified on voir dire Vaughn 247) (state’s and other rec- forms Exhibit presence of the examination outside (state’s 248) from the Texas ords Exhibit violence, as jury that Satanism advocates (TDCJ). Justice Department of Criminal of human sac- by evidenced the discussion grievance by In a form received TDCJ on Bible and the “rituals rifice The Satanic 19, 2007, that he had appellant June stated of destruction” contained The Satanic a Satanist since that he was been Haley gave also several exam- Rituals. up sorcerer” who had taken also “blood ples people who committed murder and vampirism, and that he was without “in the name of Satan.” Over mutilation practice that he needed to his materials objections counsel’s on relevance defense religion. Other records showed Amendment, the trial court and the First 2006, appellant change asked his TDCJ Haley permitted ruled that would be “to travel from Buddhist religion on his card testify religion” in the area of the satanic requested to Satanist and that in 2007 he that “all of that evidence is relevant to “Vampirism/Thaumaturgy” be en- dangerousness of future and it is the issue tered in addition to Satanism. The state of the Amend- protection outside First an also demonstrated that had objec- also filed written ment.” pentagram having inverted on his chest ruling, arguing the court’s tions to appellant lift shirt stand before evidence was “irrelevant” and that its ad- *7 jury. rights mission violated Rule 403 and his of and of religion freedom of freedom associa- Dr. Haley testified before the of the tion under the First Amendment him jury, phi- the state asked about “the United States Constitution. regarding human losophy of satanists sac- Haley responded passages rifice.” with trial,
At
the state offered into evidence
from The Satanic Bible.
appellant’s
various items obtained from
(state’s
cell,
prison
including
says,
only
five books
It
“The
time a satanist would
285-289),
if
writing
perform
Exhibits
three
tablets
a human sacrifice would be
it
(state’s
290, 291,
293),
purpose;
Exhibits
and
seven
were to serve a twofold
(state’s
drawings
being
magician’s
Exhibits 294-299 and
to release the
wrath in
(state’s
301),
curse,
im-
throwing
and a handwritten note
Ex-
of a
and more
300).
totally
a
portant,
dispose
hibit
The books were entitled Nec-
to
of
obnoxious
ronomicon,
Satanist,
states,
...
deserving
Secret
a
and
individual.”
It
The
Life of
‘Who,
Rituals,
arises,
then, would
Speaks!,
question
Satan
The Satanic
and
“The
Appellant’s writing
proper
Bible.
be
a fit and
human
The Satanic
considered
sacrifice,
drawings
qualified
contained Satanic im-
and how is one
to
tablets and
references,
person?’
agery
including
pass judgment
and
lists of
on such
statements,”
rules,”
Anyone
brutally simple.
is
who
“Satanic
“Satanic
and
answer
has
unjustly wronged you
“Satanic
One
draw-
has
or who
appellant’s
sins.”
805
way
gone
right
join groups
out of his
to hurt
al’s
and to associate
—to
deliberately
hardship
cause trouble and
with others holding similar beliefs. Ma
son,
...
you.”
or those dear
for
905
at
(citing
S.W.2d
Dawson v.
Delaware,
person, by
reprehensible
159, 161,
“When a
503 U.S.
112 S.Ct.
behavior, practically
(1992)).4
cries out to be de- 1093,
However,
zone of that the evidence of of of the offered evidence and its prejudice trial court to decide to the issue of fu- probative applicable. was relevant value that Rule 403 is Satanism pro- Williams, dangerousness ture and outside at 958 S.W.2d 196.
tection of the First Amendment. would probability appellant The commit criminal acts of violence would turn to statuto appellant’s
We next continuing society a threat constitute Relevant evidence is that which ry claims. punish- a “fact of in this consequence” any tendency to make the existence of has 2(b)(1). 37.071, § Art. In the ment trial. prob more or any consequence fact of less case, appellant brutally raped, instant than it would be without the evidence. able beat, strangled fifteen-year-old girl and tat Appellant’s Tex.R. Evid. 401. Satanic fingertips then cut off her to remove too, books, writings, drawings are in potential pre- DNA evidence. state character, we have held dicative of his past, appellant sented evidence in the to the ques that such evidence is relevant behavior, displayed aggressive had had dangerousness punish tion of future at school, been trouble at and had been State, 192, ment. v. 67 S.W.3d 201 Conner placed probation on for a theft offense State, (Tex.Crim.App.2001); v. 870 Corwin argued, North Defense counsel Carolina. 23, (Tex.Crim.App.1993); S.W.2d 25 see “Maybe good person he wasn’t a back State, AP-74,726, also Robles v. No. then, now,” a good person point- but he’s 26, (Tex.Crim.App. April WL 1096971 2006)(not ing trying out that “he’s been to do the designated publication). right things” since he was incarcerated Rule 403 allows for the exclusion of oth and that he had no documented incidents when proba erwise relevant evidence its in prison. of violence The evidence that substantially tive value outweighed appellant pris- became a Satanist while in the danger prejudice. of unfair Tex.R. helped argument. to rebut that defense Rule 403. 403 favors admission Evid. prosecutor closing argu- As stated pre of relevant evidence and carries a ment, appellant’s evidence of affiliation sumption that relevant evidence will be piece with Satanism of the was “another probative prejudicial. more than Williams (Tex.Crim. State, puzzle” jury for the to consider when an- v. 958 S.W.2d swering special issues. This evidence App.1997). ‘probative “The term value’ was one of the factors that affected the probative refers to the inherent force of an probability would be dan- is, strongly item of evidence—that how it future, ger just in the like the facts of the probable serves to make more or less prior that he committed and his offense consequence existence of a fact of history and violent artwork. It was not so litigation coupled proponent’s with the — prejudicial disparity that there was a clear Casey need for that item of evidence.” degree prejudice between the and its (Tex.Crim.App. 215 S.W.3d “ Thus, 2007). the trial court probative value. did prejudice’ refers to a ten ‘Unfair *9 admitting not abuse its discretion this dency to on an suggest improper decision basis, evidence. Point of error one is overruled. commonly, though necessarily, not an Id. All emotional one.” at 880. testi CHALLENGES FOR CAUSE
mony physical likely and evidence are be two, prejudicial appellant alleges party point to one or other. error (Tex. State, 642, Jones trial improperly v. 944 S.W.2d 653 that the court denied his only challenges against It when there for cause venire mem- Crim.App.1996). is
807
Neumann,
cause,
Alejandro
may be
for
bers Sharon Ann
members
excused
Melero,
them,
Appellant alleges
explained
and Luis Romo.
law must be
they
and
challenge-
they
that these venire members were
whether
must be asked
can follow
law,
able for cause under Article 35.16 because
regardless
of their personal
against appellant
were biased either
proponent
Id. The
a challenge
views.
which
against
part
upon
or
some
of the law
establishing
for cause has the burden of
35.16(a)(9)
rely.
he was entitled to
Art.
challenge
proper.
Id. The pro-
(c)(2).
does not meet this burden until he
ponent
has shown that the venire member under-
preserve
To
error for a trial court’s
requirements
of the
stood
law and
cause,
a
for
challenge
erroneous denial of
could not overcome his or her prejudice
(1)
appellant must show that:
he asserted
enough
well
to follow law. Id.
(2)
cause;
challenge
a clear
for
specific
peremptory challenge
he used a
on the
We review a trial
ruling
court’s
(3)
member;
complained-of
per
venire
his
a
for
challenge
on
cause with considerable
(4)
exhausted;
emptory challenges were
deference because the trial
is in the
judge
request
for additional strikes was de
position
best
to evaluate a venire mem
(5)
nied;
objectionable juror
an
sat
ber’s
responses.
demeanor and
Id. at 295-
State,
92,
jury.
Green
934 S.W.2d
State,
511,
(citing
96
Colburn v.
966 S.W.2d
(Tex.Crim.App.1996). Appellant
105
has 517
A
(Tex.Crim.App.1998)).
trial judge’s
with
properly preserved
respect
error
to ruling
challenge
may
on a
for cause
be
each of the
venire
challenged
members.
only
reversed
for a clear abuse of discre
tion. Id. at 296. When a venire member’s
If
judge
a trial
errs in overrul
unclear,
vacillating,
answers are
or contra
a
ing
challenge
against
for cause
a venire
dictory,
particular
we accord
deference to
member,
a
then
defendant is harmed if he
the trial court’s decision. Id.
peremptory
uses a
strike to remove the
venire member and thereafter
suffers a
Sharon Ann Neumann
detriment
from the
of the strike.
loss
Appellant claims that Neumann
State,
(Tex.
738,
Feldman v.
S.W.3d
him
against
was biased
because she “was
Crim.App.2002). Appellant was denied
uncomfortable with Satanism” and she
any
peremptory
additional
strikes. To
religion
contrary
“described the
as evil and
harm,
demonstrate
appellant must show
everything
When de
[she] believe[d].”
erroneously
that the trial court
one
denied
questioned
fense counsel
Neumann about
State,
challenge for cause. Chambers v.
affiliations,
religious
her
she stated that
9,
(Tex.Crim.App.1993).
or murder, capital pay mits should token, Q. Okay. And same life,” right? with own initial, know, your you this case A. Yes. your say inclination is to that death that, Q. put you agree that with You appropriate is unless the Defense right? otherwise, prove can right? A. Yes. Yes, A. sir. that, Q. pretty strongly You feel about Q. you’re going put So to the burden right? on us to to prove you he should Yes,
A. sir. live, right? Yes,
A. sir. Now, asked, well, Q. Okay. you were Q. you pretty And feel strongly about you wait hear can to all the evi- that, right? dence, okay? Yes, A. sir. A. Yes. explained Defense counsel then to Mele- Q. You were asked that statement ear- question ro that first the State has “[t]he you’re open possi- lier. And prove you beyond to to all reasonable bility might pro- that we be able to ... probability doubt that there is a [is] give vide some reason to not that the Defendant would commit criminal penalty, right? death acts of violence that would constitute Yes, A. sir. continuing society.” threat to Defense Q. Okay. reality, you’re going But in explained they counsel don’t “[i]f expect prove you to us to to you prove regardless that to of what we penalty appropriate not the death is do, all, present they we no evidence at if way go, right? to it, prove then to be don’t the answer has A. Yes. questioned no.” Defense further Melero. Q. prove you If we can’t Q. asking you your I’m opinion. about penalty death not appropriate, is you opinion already Do have an as your opinion then in it should be the question to what the answer to 1 is? penalty, death right? I I what say A. No. have to listen to A. Yes. it to presented evidence is Q. And understand that that’s they see if it was reasonable or if way little bit than the different [the] it, prove could that that was—that works, law right? he would show a threat to that. I’m A. In what aspect? open you’re going to the fact that if Well, Q. aspect present in the have to the evidence to otherwise, that’s, me then
prove
penalty
that the death
show
think,
thing
a fair
to do.
appropriate.
*12
that,
open
I’m
to be
to
ing
willing
proof
the
of
and follow
see
burden
at, right?
I
where we’re
Q. You see
what it
you
the law like
said to see
mean,
telling me that on
you’re
shows.
expect us to convince
you
hand
one
something. On the other
you
ques-
defense counsel further
I would wait to
you’re saying
hand
exchange,
Melero after this
Melero
tioned
the evidence and then
to
listen
he
acknowledge
to
that
would
continued
you
a—do
see the
make —there’s
to
follow the law and hold the state
its
there?
conflict
proof
future-dangerous-
burden of
on the
Defense counsel then
special
ness
issue.
Yes,
A.
sir.
cause, arguing
for
that
challenged Melero
just
I’ll
my question,
ask
Q.
guess
So I
state, that he
in favor of the
was biased
you
way is it? Do
you. Which
“unprove
the defense to
expect
would
you
unconvince
or....
us to
expect
subject
be
to the death
[appellant] should
hearing
I’m
from
A.
on what
Based
very
were
penalty,”
opinions
and that “his
them,
them
expect
I would
to show
The
strong
penalty.”
in favor of the death
me,
know,
me the burden
you
giving
challenge
trial
for cause.
court denied
that.
have
proof
trial court did not abuse its discre-
to show me on
They’re supposed
by denying appellant’s challenge
tion
that.
defense counsel
cause to Melero. When
law, okay?
Q. That’s the
him,
explained
agreed
the law to
Melero
A. Yes.
personal opin-
that he could set aside his
eventually,
the law and
Q. And that’s
requiring
follow the law
the state
ions and
mean,
you
question,
I’ll ask
prove
future-dangerousness special
to
okay?
beyond
Appel-
a reasonable doubt.
issue
Okay.
A.
lant has not shown that Melero had bias
you’re
Q.
required
the law that
That’s
substantially impaired
that would have
is,
My question
you
to follow.
ability
carry
to
out his oath and instruc-
know,
way you want
based on the
with the law. See
tions
accordance
mind,
your
okay,
or
happen
see it
Feldman,
got present got upon whatever he’s based the evidence that comes present. judged by you You’re in in what this case. And can do they present. that? Yes, my really uncle into stuff like
A. sir. his, know, you doing guess into ultimately, question becomes Q. So it you what call satanism or whatever is. your Are able to set aside this. language he went into some sort of And prejudices biases or or whatever when he walked spoke. that he And knowledge you have feelings or out, him of the when we threw out about satanism? Wait to learn house, left, maybe he left. And when he do, case, about it from this if later, he two seconds returned and he’s apply and then it in that case. Can *14 back, like three got a mark on his little you do that? drawings. Yes, Yes, sir. sir. A.
Q. say you So let’s were to hear about and, mean, in I just And he came it’s the
satanism a case. This is before us, way approached you he came in and you’ve any evidence. Are heard devil, he he know. He said was you weigh able to all of the evidence even, and, know, you going get and your in a to whatever case to come ways doing things. there’s standard question conclusions are to number mean, face, just I a view of And 2, regardless? really, expected wasn’t what we him to Yes, A. sir. I think I could. be, you know. And it’s well recorded in Well, my I head what he looked like and what Q. need a little more sure than
think, did, mean, you you always if can. he know. I I’ve really I want really held that don’t Yes, mean, I can. A. sir. I big discuss in real details on what—I asked what Defense counsel then Romo mean, maybe this was back about —I experiences he had with Satanism. Romo 15, you’re talking was about so about “just experience that he had a bad stated years ago, maybe a little more. And occasion,” one and he refused to dis- [on] just very for me it’s uncomfortable agreed cuss it. He that Satanism was evil mean, discuss this because I backtracks practiced and that it not be in the should me, know, you just very and it’s bother- States. defense counsel United and, mean, some for me I this is some- juror, asked if this would affect him as a mean, know, thing just I don’t it —I mean, Romo stated: “I I can hear the case very, very makes me uncomfortable. case, if I it’s it’s a case. And I feel they prove can wait till all the evi- [sic] When defense counsel continued to do, guess, dence and I can decide what to I question point, Romo after this Romo in that occasion.” agreed against that his bias Satanism challenged Defense counsel then Romo would affect how viewed the evidence. against for cause due to his bias Satanism. state, Upon questioning by further challenge, trial court denied the but however, that he agreed Romo would lis- granted request later counsel’s defense ten to evidence and base his decision bring questioning Romo for further back point- on that alone. then Defense counsel regarding experience” his “bad with Satan- out, say you, “You it affect ed won’t but ism. you you.” affect said it would Romo re-
Well, mean,
plied that he would listen to the evidence
just
my
I
atwas
house
—I
over,
and that he would not make decisions
and we had
and one
visitors]
to him. Fi-
my
happened
based on what had
got
my
uncles
into it with
father.
just
family
nally,
questioned
And we
a little
the trial court
Romo.
dispute
had
skill,
juror
pert by knowledge,
the law the
experience,
THE COURT: Under
train
ing, or
solely
may testify
to render a verdict
education
required
thereto
of an
they
they
opinion
hear. And
form
or otherwise.”
evidence
Before
admitting expert
specifically
testimony
will be
instructed
can-
under Rule
702, the trial court must be satisfied that
any personal experiences,
not refer to
(1)
have,
three conditions are met:
the witness
any expertise
they might
words,
qualifies
expert by
as an
reason of his
things of that nature.
In other
skill,
knowledge,
experience,
oh,
training, or
go
jury
say,
can’t
this
(2)
education;
subject
matter of the
happened to me.
can’t do that.
You
testimony
appropriate
is an
one
expert
That’s not
the evidence
this case.
(3)
testimony;
admitting
expert
Yes, sir.
[ROMO]:
testimony
actually
will
assist the factfinder
THE COURT: Could
follow that
in deciding the case. Alvarado v.
instruction?
912 S.W.2d
215-16 (Tex.Crim.App.
Yes, sir.
[ROMO]:
1995).
*15
commonly
These conditions are
re
you
THE COURT: Could
set aside that
(1)
(2)
ferred to
qualification,
reliability,
as
prior
experience that
had when
(3)
and
relevance. Vela v.
evidence,
you’re analyzing the
whatever
128, 131
S.W.3d
(Tex.Crim.App.2006). Ap
it is?
pellant argues that the state failed to dem
Yes, sir.
[ROMO]:
Haley
qualified
onstrate that
was
or that
expert testimony
his
was reliable.
Following
exchange,
this
defense counsel
again challenged Romo for
due to
cause
Qualification
two-step
a
in
against
his bias
The trial court
Satanism.
quiry.
Id. A witness
have a
must first
again
the challenge.
denied
field,
background
sufficient
in particular
the trial court’s
supports
record
and a
judge
trial
must
then determine
ruling.
particular
We accord
deference to
background
whether that
to the mat
goes
ruling
the trial court’s
when a venire mem-
give
ter on which the witness is to
an
ber
in
vacillates
his or her answers. Gard-
opinion.
proponent
Id. The
must estab
ner,
Although
skill,
The focus is on the fit between the familiarity matter at expert’s issue and the EXPERT TESTIMONY with it. Id. at spectrum 133. Because the three, point appel In of error education, skill, wide, training of and is so lant contends that the trial court erred in a trial in great court has discretion deter allowing Haley, expert Donald the state’s mining appro whether a possesses witness Satanism, testify about the Satanic priate qualifications expert spe as an on a religion practices and the beliefs and of its cific in a topic particular case. Id. at 136. practitioners. Rule 702 of the Texas Rules scientific, provides Haley of Evidence testified on voir dire examination “[i]f technical, specialized knowledge or other that he had in criminol- degrees associate’s ogy justice, will assist the trier of fact to understand of and administration bache- degree criminology, the evidence or to determine a fact in lor’s in and a master’s issue, qualified degree a witness as an ex in with a con- public [then] administration He the rituals of destruction The Satanic administration. justice
centration Adminis- the Director of asked if he had researched employed as Rituals. When Community at Tidewater of any illegal tration Justice that have committed “satanists Beach, where Virginia Virginia, College acts,” examples gave or violent he courses that includ- taught multiple he had Richard Ramirez California serial-killer subject pre- of Satanism.5 He had ed the teenage of a that was girl and the murder Virginia prison, state viously worked at a written about in the book entitled Office, the Beach Sheriffs Virginia if he knew Name Satan. When asked and Department, Police Chesapeake “of either death or mutilation cases He Department. Beach Police Virginia satanists,” repeated examples these two Satanism since had studied and researched the conclu- and added several more. At ex- taught provided he had and and examination, the trial sion of voir dire subject this to police consultation on pert in the Haley “testify court ruled that could taught agents. and FBI He had officers religion and to its reli- area of the satanic agencies in a two- people various from and to whatever it is gious philosophies occult, “satanism, the day course on or recom- permits Bible [Satanic] ' academy in El regional the black arts” at things mends or all of those County, had written a manual Paso talked about.” teaching classes on that he used when Haley was not Appellant contends Satanism to law-enforcement officers qualified testify expert as an because he He never before testified personnel. had *16 any “had never taken classes on Satan- expert, as a but he was consid- Satanism ism,” absolutely theological he no “had subject by Virgi- the the expert ered an on any he never written training,” and “had college the Gang nia Association and subject.” Haley articles on the acknowl- where he worked. When asked if there any formal “any publications edged were on satanism that he had not taken studies,” part obtaining have been of he named in Satanism while [his] courses books, including numerous articles and degrees, spent but he testified that he had Bible, Satan, The Satanic In the Name years studying that sub- approximately 19 of Thelema, Satan The Book The Speaks!, ject. Although Haley confirmed of Dictionary, Dictionai~y Devil’s and the any formally published had not written of Satanism, expressed familiarity and he Satanism, about he testified that articles with “Nine and the the Satanic Sins” 50-page he had authored a manual that he “Eleven Satanic Rules of the Earth.” He topic. teaching used when classes on gave in which he had advised specific cases years study- Haley’s researching, Given of subject personnel law-enforcement on the ing, teaching, advising about the sub- Satanism, experts and he named other Satanism, that the trial ject of we conclude with whom he had conferred about cases per- court did not abuse its discretion if he involving Satanism. asked had testify mitting Haley appellant’s over found documentation and evidence “that objections. qualification religion members of the satanic have a appellant’s We next turn to philosophy system advocating or belief vio- lence,” Haley’s testimony claim that “could not be he testified about discussion of reliability human reliable.” The sacrifice The Satanic Bible and shown be Haley explained jus- justice program.” 5. that "administration of synonymous tice ... term with a criminal is
815 State, may App.2002); evidence be “soft” science established see also Mathis v. 67 (1) 918, S.W.3d 924 by showing expertise (Tex.Crim.App.2002). that: the field of (2) one; The burden then legitimate is a the sub shifts the state to involved articulate testimony explanations race-neutral for its ject expert’s matter of the (3) field; strikes. Id. Once the prosecutor has artic scope within the of that explanations, ulated race-neutral the bur testimony upon or expert’s properly relies den shifts back to the defendant to show in that field. principles utilizes involved explanations are a (Tex. pretext State, 549, v. Nenno 970 S.W.2d 561 overruled, discrimination. Id. The trial court must other Crim.App.1998), on then determine whether the defendant has Terrazas, grounds by State v. 4 S.W.3d proving carried his burden of discrimina 720, 727 The evi (Tex.Crim.App.1999). tion. Id. The trial court’s determination Haley’s expert testimony dence shows that great is accorded deference and will not be Haley was reliable under Nenno. appeal clearly overturned on unless it is subject considered an on the expert erroneous. Id. Community Satanism Tidewater Col Association, and the lege Virginia Gang case, In the instant we need not address with experts had conferred other on the whether the a prima established cases, subject spent various had Where, case, case. as in this facie years teaching subject to college stu prosecutor has articulated his reasons for dents and law-enforcement He personnel. the challenged peremptory strike and the had read numerous articles and books on trial court ques has ruled the ultimate subject, testimony regarding and his discrimination, tion of intentional that is philosophy directly upon Satanic relied Young becomes moot. sue 283 these sources. trial court did not (Tex.Crim.App,), S.W.3d cert. de admitting Haley’s abuse its discretion in —nied, -, U.S. S.Ct. expert testimony over appellant’s reliabili (2009). L.Ed.2d 622 We review the record *17 ty objections. Point of error three is over hearing of a Batson and the voir dire ruled. in light examination the most favorable to ruling. the trial court’s Id. BATSON CHALLENGE appellant objected When to the state’s four, In point appellant of error peremptory against strike under Cofield argues that the trial court erred in over Batson,. prosecutor the the articulated ruling his objection Batson to the State’s reasons for the strike. state’s peremptory against prospective ju strike Cofield, my *18 from the state in order for her to affirma- initially death penalty.” prosecutor tively future-dangerousness answer pointed during voir dire that Neumann out issue, replied, special she “How much? in her that she jury questionnaire stated really to convince me.” Defense Needs penalty believed in the death for an “[i]n- counsel then reiterated that the standard if killing person tentional of an innocent proof “beyond was a reasonable doubt.” there is irrefutable evidence such as [a] Neumann, Like Medina stated that she DNA prosecutor expressed match.” The proof understood the standard of and that concern use the term that Neumann’s she would hold the state to that standard require “irrefutable” meant she would answering future-dangerousness when prove “beyond state to its case all doubt” special issue. “beyond instead doubt.” reasonable replied, Neumann Cofield, however, testified that he would affirmative- guess something require proof for me it take more order to would ly future-dangerousness special something such as a DNA test with like answer prosecutor questioned issue. The Cofield everything you before make a deci- ability sion, about his special to answer the is- okay?
sues. Okay. A. Q. you And I think it ques- told in the Q. The reason I ask is because some that, know, you tionnaire he was know, people, you hear, well, will guilty found of murdering someone that, committed that. If he did while in the course of committing or then that’s it. mind, It’s over in my attempting to aggravated commit okay. sexual assault. A. Okay.
A. All right. Q. That’s enough for me say, you Q. So already that’s a done deal. know, that is the appropriate pun- A. Correct. ishment. You’re saying you’re not Q. That’s not something you’re going there, right. to decide. No, A. I’m not even close there. A. Right. Q. You’re not there a long shot? Q. know, you And I’m not saying Yeah, A. I’m not even there. well, my is, question you that — In response to continued questioning by alone, based on that already is that prosecutor, Cofield reiterated that he know,
enough, you based on needed to hear “a lot of evidence” or an you have already up your made “enormous” amount of evidence in order to way mind one or the other? answer the future-dangerousness question No, A. because I still don’t know—I affirmative, in the notwithstanding the fact of, know guilty what he’s been but I that appellant had already been found still don’t enough have evidence to guilty of murder in the course of commit- sit here and make a decision as— ting or attempting to commit sexual as- type of decision are guys sault. At the conclusion of his voir dire us, asking or asking possi- me as a questioning, agreed Cofield that he could juror ble got to make. It’s to be a not affirmatively answer the future-dan- enormous, lot. got It’s to be enor- gerousness question based on the facts of enough evidence to here sit mous— the case alone. type and make that of decision. I’m going say not going happen it’s Cofield also stated on voir dire that he overnight. a tough It’s decision. worked as a detention officer for the Juve-
nile Probation Department and that he greatly enjoyed inspiring juvenile offend- IQ. was saying, but need more to change ers their lives for the better. than a simple fact that the crime He further stated that never “[fit’s too committed, right? late” “[ajnybody and that can make a *19 A. Correct. change.” Q. basically You’re going to look at all
the evidence presented that’s to When the trial appellant’s court denied you. you’re willing And to do stated, challenge, Batson defense counsel right? Again, I believe some of jurors —and A. Correct. point I can’t exactly right to them now— Q. you That’s what we want to do. We but I think jurors other also indicated you
want know, sit and wait hear thing, you and the same people do bench, ty of the exhibit at the defense get do rehabilitated. change, people objected. counsel questionnaires at their I by looking Just jurors that are sit- there’s other my believe need to direct THE COURT: You n that, you that panel believe ting you’re object- on this attention to the areas that know, changing and is objec- rehabilitation ing to. You can’t make a blanket be done. So that’s something that can tion. why that’s I don’t
my response and sufficient, are Your think those reasons Yes, Your COUNSEL]: [DEFENSE Honor. Actually, reference Honor. There’s to— apologize. I It’s the it’s the next one. appeal that argues now Appellant about threat- next one after that. Talks indicated the same juror “several sheets pushed, got ened a and then he student of rehabilita- regarding the issue beliefs” out, argue I would suspension. a school tion; however, jury questionnaires person to the that “that threat- Court the record on part were made a of not pushed” is based on ened a student and brief, specifi- he appeal. appellate In his hearsay person from another and it’s not jurors Victor cally prospective mentions know, something that that Salcido, Collier, was— Reveles, Veronica Richard ex- qualifies under the business records Almanzar, Jessica Portillo. Our John and ception. testimony dire does review their voir of portion The relevant [PROSECUTOR]: finding pretext. of support not this, Honor, Your is that Defen- striking Co- explanations The state’s was, suspended. dant this case indeed neutral, facially appel- race and field were The the school and the rele- action of pre- lant not demonstrated evidence has vance of this document are to show his Thus, trial court did not abuse text. background. character and his When he denying appellant’s Batson its discretion in he was attending suspended school Point of error four is challenge to Cofield. several times for different reasons and overruled. why the documents in that’s we offered The result what place. the first is CLAUSE CONFRONTATION significant part. five, appellant error point argu- I’m not [DEFENSE COUNSEL]: erroneously the trial court asserts that relevance, arguing hearsay I’m with- ing records, labeled high-school admitted his know, hearsay. You understand state’s Exhibit 237. claims that come in the— business records under exhibit, entry an this which contained stat know, they filed their affidavit and ing pushed another threatened everything filed them at the student, was admitted violation of his arguing specific court. I’m Sixth right Amendment confront hearsay within portion references hear- However, against him. there is witnesses say that is not admissible under the no indication in the record that exhibit this Hearsay exception. business record jury. was ever submitted to the portion particular confrontation to that says a student and “threatened the exhibit prior state offered pushed.” testimony Negron of Nelson and Clifton McQueen, Gordon offi- two school-resource *20 going
cers who THE I’m to overrule appellant’s high worked at school. COURT: objection. the parties the discussed the admissibili-
819 McQueen 71, Negron tographs then testified state’s labeled Exhibits 106 with appellant about their encounters at through and 256 through 262. He high school. State’s Exhibit 237 was photographs contends that these were not testimony. their during not mentioned relevant or necessary because he pre- “had Negron testify regarding par- did not the viously been guilty charged found as in the McQueen ticular incident at issue. testi- ... indictment [that] listed all the differ- present fied that he in when an was 1999 ent manners of causing [the] decedent’s principal going suspend “assistant was He also contends that any pro- death[.]” assault,” for an [appellant] provided but he bative value of the photographs was sub- regarding no further details that incident. stantially outweighed by prejudicial their Later, closed, after parties both sides the effect. regarding had a discussion the removal of During the testimony of Dr. Corinne exhibits that had not been identified or Stern, Elizabeth the medical examiner who specifically jury. discussed before the The performed autopsy, Medina’s appellant complied trial court with the state’s re- made objections relevance and Rule 403 quest to remove Exhibit until it could autopsy the photographs that had been verify whether or it had been dis- not previously guilt admitted at the phase of cussed. The record does not reflect that trial.6 his 2002 Before appellant made Exhibit 237 was it again mentioned or that objections, parties these the had discussed was ever to the jury submitted for consid- evidence, previously the admitted and the eration. trial court had that “any determined evi- objected Defense only counsel previously dence received and considered specific notation in the school records that by jury returning guilty the verdict appellant “threatened a student is now received evidence.” pushed.” McQueen testify did not to that complained state had “not laid a effect. Since it appears that the exhibit proper foundation” for the introduction of jury, was never submitted to the and since evidence, responded. such state McQueen only, that he pres- testified was trial can take a long This time for issues principal going ent when assistant already that have been decided. The assault, suspend appellant for an appellant case law is clear. The Court—this has failed to demonstrate a Confrontation Court, Honor, respect, with all due Your Hinojosa violation. See Clause any jurisdiction any- doesn’t have (find- (Tex.Crim.App.1999) 5.W.3d thing punishment phase but the at this ing no error when evidence at issue was point. already Those issues have been presented never to the jury). Point of decided and Defense counsel knows this. error five is overruled. through
We’ve been this. -have don’t ADMISSION OF PHOTOGRAPHS lay predicate. Everything that was six, point guilt portion
In of error admitted is admitted appellant argues question. They’re that the trial court Rules now. There’s no ba- violated autopsy 401 and 403 law. admitting pho- sic tenets of closed, 6. We note that after both not reflect that an exhibit labeled sides does state's parties regarding had a discussion remov- 261 was offered or admitted at trial. Exhibit al of exhibits that not been identified had or specifi- We further note that did not specifically jury. discussed before the cally object to state's Exhibit 71 until after Dr. agreed state to remove Exhibit 258 from the it. Stern testified about See P. 33.1. Tex.R.App. addition, jury's consideration. record *21 820 stated, you already told her my Nothing, because “That’s then trial court argued that twice.” further Appellant
ruling.” “totally situation” different this was a right.” “All TWO: VOICE NUMBER trial in front a “brand-new” this was (Laughter.) trial court re- jury. The aof different ONE: ‘You hear VOICE NUMBER on the rec- arguments are “Your sponded, lottery?” that man who won the about ruling.” already my made I’ve ord. TWO: “No.” NUMBER VOICE special of the is In its determination “Okay. He ONE: VOICE NUMBER sues, to consider all of jury is entitled lottery, right. And he comes won the guilt at both the presented the evidence wife, your ‘Pack home and he tells his trial. Art. stages of punishment lottery.’ won the just stuff. 37.071, 2(d)(1); Young, 283 § see also like, do I need to “And she’s ‘What Appellant acknowledged at 863. S.W.3d pack trip for the ski pack? Do I need to previously been ad evidence had (unintelli- pack or do I need to the”— his first trial. guilt phase of mitted at gible.) However, the state argued had your get the hell out pack “Just shit ” punish because the re-offer the evidence of here.’ being held before a dif hearing ment (Laughter.) previous than the one that had jury ferent of challenges the admission Appellant requirement him. There is no ly convicted both constitutional and this evidence on guilt phase at must admitted that evidence the trial statutory grounds, arguing it can be considered at before be re-offered right violated his First Amendment court State, v. 100 S.W.3d Trevino punishment. speech and Rules 401 and to freedom (Tex.Crim.App.2003). The trial 238 Rules of Evidence. This 403 of Texas not abuse its discretion admit court did it is point of error is multifarious because previ that had been ting photographs legal theory; based on more than one we at the 2002 trial. See Rus ously admitted appellant’s arguments will review in the (Tex. 291 S.W.3d seau Tex.R.App. justice. See P. 38.1. interest of (when a case is on remand Crim.App.2009) new punishment trial court for a to the alleges that the ad jurisdiction is hearing, the trial court’s of this evidence allowed the state mission issues). punishment statutorily limited thoughts,” to “criminalize violation [his] six is overruled. Point of error Although the First Amendment. the state from prevents
First Amendment of defendant’s abstract employing evidence JOKES ADMISSION OF when those beliefs sentencing beliefs at seven, appellant of error point tried, bearing being have on the issues no the trial court erred in ad contends that if may evidence be admissible it is such recording following an audio mitting to be relevant to issues involved shown his brother on the jokes told Dawson, 163-168, at in the case. U.S. while incarcerated. telephone dangerousness 1093. Future S.Ct. “Hey, you ONE: VOICE NUMBER sentencing an issue that is relevant joke?” want to hear a Mason, of a trial. stage capital-murder TWO: ‘Yeah.” VOICE NUMBER of a defen at 577. Evidence 905 S.W.2d jury factor that a character is one ONE: “What do dant’s VOICE NUMBER the future- eyes? may deciding consider when with two black tell a woman
821 44.2(b). special issue. Keeton v. P. The state dangerousness heavily rely did not State, 58, (Tex.Crim.App. 724 S.W.2d 61 on appellant’s jokes, presented and it oth- 1987). er, compelling appellant’s evidence of fu- dangerousness, ture including the brutal appellant
When made a freedom-of- appellant’s facts of the offense and prior to the of this speech objection admission artwork, history, violent and conversion to evidence, responded the state that it was Satanism while incarcerated. Point of er- character, appellant’s evidence of and the ror seven is overruled. objection. trial court overruled the It is within the zone of disagree- reasonable ment that this evidence was indicative of JURY ARGUMENTS appellant’s character and thus relevant to point In of eight, appel error dangerousness. the issue of future De- lant asserts that the trial court erred when argues appellant counsel had fense it allowed the state to argue jury “trying right things” been to do the since because, that appellant was a con man incarcerated, sorry he was that he was for die, though even he claimed to want to did, responsibility
what he
that he took
spent
testifying
four hours
before the jury.
actions,
own
that he understood
his
jury argument
Permissible
generally falls
jokes
what he
at
wrong.
did was
(1)
into one of four areas:
summation of
issue,
appellant
which
told while incarcer-
(2)
evidence;
reasonable deduction
raping, beating,
murdering
ated after
evidence; (3)
from the
an answer to the
female,
15-year-old
a
demonstrated
counsel;
(4)
argument
opposing
or
a
opposite.
ap-
This evidence showed that
plea for law enforcement. Cannady v.
pellant
topics
found the
of violence and
State,
205,
11 S.W.3d
213 (Tex.Crim.App.
disrespect towards women to be humorous.
2000).
consistently
haveWe
held that ar
The trial court did not abuse its discretion
gument that strikes at a defendant over
admitting
appellant’s
this evidence over
the shoulders of defense
improp
counsel is
objection.
First Amendment
State,
136,
er. Wilson v.
7 S.W.3d
This evidence was also relevant
(Tex.Crim.App.1999); Dinkins v.
tendency
under Rule 401 because it had a
(Tex.Crim.App.1995).
894 S.W.2d
any
to make the existence of
fact of conse
(ie.,
trial,
quence
appellant’s
appellant
future
testified at
defense
dangerous
ness)
probable
questioned
jour-
more
than it
counsel
him regarding
would be
without the evidence. Tex.R. Evid. 401. nal that had been admitted into evidence
Appellant claims that the evidence should and labeled State’s Exhibit 291.
In this
journal,
nevertheless have been
appellant
excluded under
wrote:
Am I: A
“What
man,
coward,
Rule
probative
403 because its
value was
confidence
thespian.
a.
substantially outweighed by
danger
my
essentially
of The virtue of
tribe is
deceit.
short,
prejudice.
unfair
Al
In
403.
I am the consummate villian [sic]
Tex.R. Evid.
though the evidence
in a
arguably prejudi
was
world without heroes.”
de-
cial, it
prejudicial
was not so
there
scribed this
simply
“concept
exhibit as
disparity
was a clear
degree
journal” containing
“myth.”
between the
a fictitious
prejudice
probative
response
questioning by
and its
value.
to further
defense
Williams,
counsel, appellant
stand that. deceit. —I I came looking for salvation. come here villain in a world without heroes.” I’m not looking for an execution. here prosecutor continued to -refer my I’m spare all to life. asking you man,” a “con defense coun- appellant to as my give up to allow me to asking you all objected. sel hers, based on the laws spite life in And Ladies and Gen- [PROSECUTOR]: I took a by. live It’s life for life. that I Jury, a con man. tlemen of the he’s life, in return.... mine be taken should con, you buy bet. If his And here’s his family] victim’s that I would tell [the testimony, if very at the end of all his to and it sorry begin explain doesn’t buy says that con when he execute you Nothing begin justify.... doesn’t me, you’re going that to feel his bet is justify will ever the life that I can do you’re going give sorry for him and it will right that I took. It’s not put him life. it all in because he He’s right. nothing There’s that never be anything have to lose. doesn’t else Only say right. thing can make it I can true, story them to allow me to If that were if his that he asking is that I’m true, Again, you sorry, I I give up my didn’t told was I’m didn’t life.... it, looking come here for salvation. give penalty, mean to do me the death my here to look to extend didn’t come why did he take almost four hours to an looking life. I came here for execu- explain justify every single thing he tioner. writings, journal, did? All his mak- ing up stories that this is about some closing at argued Defense counsel later fictional character— “deserves to live because he appellant ie., it,” gets he understood what he did I’m going [DEFENSE COUNSEL]: responsibility for wrong was and he took at object. striking That’s the Defendant making for his own actions without excuses I’m over the shoulders of Counsel. also argued himself. Defense counsel to do that direct examina- one chose appellant “the ultimate remorse” showed They’re attacking my tion. client for him to jury put “to death asking that. prosecutor what he did.” The because of explanations His [PROSECUTOR]: responded objection appel- without from pictures, all of commissioned art these lant. and all that. He’s a con man. And he’s get any- what? He doesn’t You know telling you Why spend all this. did he at all. I’ll get He doesn’t it And thing. doing sorry— four that? I’m hours why in this evidence. There’s you show going I’m [DEFENSE COUNSEL]: it, all, at proof get that he doesn’t not objection. I’m the make same one [appel- the bottom line is that because They’re attacking who chose to do that. is a con man. One of the best— lant] him over what I did. yesterday, saw it almost four THE COURT: Overruled. hours, and we’ll talk about that. And talking I’m about ev- [PROSECUTOR]: what, Gentlemen, you know Ladies and stand, guy said on the erything this my don’t even have to take word for just have it in a right? Could he said it. in his right There’s evidence there Sorry. give of minutes? Please couple own that he’s a con man.... words The end. But penalty. me the death writing says, his own he “What am I? A man, coward, he almost four hours— thespian. spends confidence instead the with the victim was In point Renew consensual.” [DEFENSE COUNSEL]: 9B, objection, Your Honor. same of error he claims that he should have argue jury been able to re- THE COURT: Overruled. quired beyond redemp- to find that was Appellant prose contends that when the tion before it could answer the mitigation being cutor accused a con special issue in the negative. man he was length because of time stand, striking on the she was at following At issue is the exchange dur- *24 over the shoulders of defense counsel be ing closing argument. really the attack was a criticism of cause you [DEFENSE COUNSEL]: testify have Appellant counsel’s decision to question, have to answer the other time. an inaccu length This is question, you second what does it ask rate characterization of the prosecutor’s you do? It asks to take all the evidence argument, which was directed not at de consideration, character, into his his counsel, fense but at himself. background, his moral culpability. (Tex. State, Mosley v. 983 S.W.2d to, WTiat that boil down does Ladies and that “a Crim.App.1998) (holding prosecutor Gentlemen? You have to decide that a at improperly striking runs risk of a person is so far beyond redemption this defendant over the of counsel shoulder that there nois reason— in argument when the is made terms of Objection, Your Hon- [PROSECUTOR]: personally defense counsel and when or. That an improper is statement of argument explicitly impugns defense coun the law. character”). sel’s Defense counsel failed not, It [DEFENSE is COUNSEL]: object time the ar prosecutor first Your Honor. That is they what have to a gued appellant was con man who do, opinion decide of the De- spent four on the hours stand. See Tex. fense. R.App. (requiring timely objection P. 33.1 a THE The question they COURT: error); preserve in order to also Lane see address, issue, need to is in the (Tex.Crim. 151 S.W.3d charge, and that’s what will Court’s App.2004) (stating that error in the admis addressing, be not other one. this So sion of is where the evidence cured same you objection, I’ll sustain the ask evidence ob comes elsewhere without move on.
jection). Even if we reach the merits allegation, appellant’s this claim fails be
cause the
prosecutor’s argument was
All right.
Is
[DEFENSE COUNSEL]:
reasonable deduction from the evidence
mitigating
there
circumstance
this
argument
and an answer to the
of oppos
case,
I’m going
Ladies
Gentlemen?
ing
Cannady,
counsel.
claim that initial encounter this— [sexual] [DEFENSE COUNSEL]: then something mitigating, or not going I’m to sustain
THE COURT: they have to balance it. The Defendant has been objection. guilty.
found aAs Defense COUNSEL]: [DEFENSE attorney say as far as the De- I can’t Your Hon- COUNSEL]: [DEFENSE mitigating fense is concerned this is or— you should take it into consideration? Jury This will not revisit THE COURT: may argue the evi- THE COURT: You you’re as ask- it was consensual whether dence. been convicted. them to. He has ing Okay. I’m COUNSEL]: [DEFENSE No, I— COUNSEL]: [DEFENSE evidence, Your Honor. arguing counsel], I will THE [Defense COURT: improper de- argue not to with the Court. asserts ask jury arguments nial of his amounted to a Honor, Your COUNSEL]: [DEFENSE right prevent- denial of his to counsel and arguing I am not respect, with all due *25 presenting him from a defense. When ed they didn’t find him that this was—that jury, he ex- appellant testified before the if saying of it. I’m that this start- guilty began having plained that he and Medina relationship, as a consensual ed out sex, “snapped” consensual but he when she prove evidence to that there’s a lot of changed her threatened to ac- mind and that it saying I’m not and show anyone him rape cuse if he told about way. saying began— I’m it ended that their sexual encounter. Detective Albert way, I think a began if it that that’s Licon had told confirmed they circumstance can take mitigating story questioned by the when the same you argue I ask to let me into effect. police. testimony Defense counsel elicited that. Dr. from Stern on cross-examination Honor, this Your [PROSECUTOR]: percent could she with a hundred “[n]ot Jury— certainty” determine whether or not the THE The Defendant has been COURT: although was consensual. And sex counsel], guilty, found [defense initially trial court sustained the state’s argu- I’m not COUNSEL]: [DEFENSE objections to consensual sex as appellant’s a ing doing very— that. I’m mitigating argument, circumstance They can look at all of THE COURT: trial court later record reflects that the inci- surrounding the circumstances objection overruled the state’s to a similar or not deciding dent in whether there’s argument. mitigation. Go ahead. sufficient Detective Li- [DEFENSE COUNSEL]: you. Thank COUNSEL]: [DEFENSE you? say con. What did This is Gentlemen, there is a lot of Ladies and suddenly something not we made you there to show that this evidence out up you. you to tell He told that before relationship. started out as a consensual confession, Irving’s Irving he took Your Objection, Hon- [PROSECUTOR]: told this started out as a consensual or. relationship. This confession came into It didn’t [DEFENSE COUNSEL]: evidence and it was uncontroverted. end— prosecution opportunity had Honor, go- I’m when he was on the stand to confront Your [PROSECUTOR]: Jury him the truthfulness of this con- ing object. He cannot tell this about didn’t, Only Jury can fession and Ladies and Gen- mitigation what is. evidence, decide, It came in uncontroverted and based on the whether tlemen. KEASLER, J., you not there is no reason for to believe concurred the result portable point it. “We were near the build- of of error three and otherwise joined began opinion it dark. have of the ings and was We Court. willing participant.” sex. She was a If KELLER, P.J., concurred in the result.
you think that this out started as relationship consensual because of the you,
evidence that presented was then mitigating could use that as a factor. Objection, Your Hon-
[PROSECUTOR]:
or.
THE COURT: Overruled. Delgado SAUCEDO, Appellant, Jesus Thus, appellant ultimately was allowed to argument jury. make his desired
Point of error 9A is overruled. Alejandro HORNER, Acosta Ale a/k/a jandro Acosta, Acosta, Carolyn Laura We further hold that the trial court did Rabe, Individually and as the Admin sustaining not abuse its discretion in Carlyle istratrix of the Estate of J. objection argument state’s to appellant’s Rabe, Jr., Appellees. jury required to find that he *26 beyond redemption before it could No. 08-08-00340-CV. the mitigation special answer issue in the Texas, of Appeals Court negative. This is not what Article 37.071 El Paso. requires. requires The statute instead jury a specific question. answer Aug. 2010. Whether, taking into consideration all of evidence, including the circum- offense,
stances of the the defendant’s
character background, per- and the defendant, culpability
sonal moral of the
there is a mitigating circum- sufficient
stance or circumstances to warrant that imprisonment sentence of life without
parole rather a death be than sentence
imposed. 2(e)(1). 37.071, §
Art. we have Although improper
held that of a jury argu- denial may
ment right constitute denial of the counsel, holding this assumes that the
jury argument is one the defendant is enti-
tled to make. McGee S.W.2d (Tex.Crim.App.1989). argue contrary
was not entitled to to Arti-
cle 37.071. Point of error 9B is overruled. affirm judgment
We of the trial
court. Mr. notes said indicate^] ror Kentucky, Jason Cofield. Batson v. One, this to us. it’s never too late for 1712, 476 U.S. 90 S.Ct. L.Ed.2d 69 change. Anyone change. to can people (1986). Appellant asserts that “the State’s thing That the first was said. professed striking juror reasons for Co- then when he spoken And was to about field were contrived in order to conceal proof, the burden of he said these racially discriminatory intent” and that the He an things. said he needed enormous trial ruling clearly court’s was erroneous. evidence, amount of that —he was asked objects A defendant who if the under Counsel for Defense the fact of prima Batson must make a showing weighed murder itself with him and he facie said, close, of racial in stating discrimination the state’s exer I’m not even based on crime, cise of peremptory its strikes. See Herron of the that I need an enormous (Tex.Crim. 86 S.W.3d And for all those amount evidence. chance, him, everything percent because it looked a 99.999 we struck reasons one, of, what I’m pointing kind to it. You know putting was some else like he evidence, mind, in saying? nothing and he With in addi- number on weight tion, something testing. There guess, us to do I requiring was that we my opinion, my at least don’t mind nothing would have to be do, think, no, it, through- as I’ve maintained have that makes me he didn’t do or, no, trial. way. out the entire it wasn’t that wishes, can, person if he find a juror A then reminded Neumann prosecutor upon 1 and 2 guilty and answer based jury already that another had determined of the crime alone. the evidence murder, guilty capital that support I had case law to that thought that she “not be able to dis- would disagree with that so I disagrees and he agree with whether or not he committed with him. because be in- capital [she would] murder Following prosecutor’s explanation, the fact of the mat- structed that that is chal- appellant’s expressed trial court denied Batson Neumann her under- ter.” lenge regard with concept. Cofield. of this When later standing counsel, by defense she ac- questioned Appellant engages comparative a knowledged that she understood the term analysis appeal to show that the State’s “beyond reasonable doubt” and she striking actually reasons for were Cofield to that would hold the state burden when argues He pretext for discrimination. deciding appellant’s the issue of future Ann prospective jurors Sharon Neumann dangerousness. in a and Irma Medina answered similar fashion amount of regarding proof Appellant contends that Medina “made a future- affirmatively needed to answer the really that she needed to be statement However, dangerousness special issue. before in favor of convinced she could find voir dire record demonstrates prosecutor initially the State.” The ex- prospective jurors ultimately these two the state had to plained Medina agreed require prove the state to future prove future-dangerousness special is- dangerousness beyond a doubt. reasonable doubt, beyond sue a reasonable and Medi- understanding na indicated her of this con- that Neumann “indi- Appellant contends counsel later asked cept. defense cated that she would have to be ‘99.999’ proof require Medina how much she would [percent] impose sure before she could