Case Information
*0 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 10/28/2015 9:57:33 AM JEFFREY D. KYLE Clerk *1 ACCEPTED 03-14-00723-CR THIRD COURT OF APPEALS AUSTIN, TEXAS 10/28/2015 9:57:33 AM JEFFREY D. KYLE CLERK Nos. 03-14-00722-CR; 03-14-00723-CR; 03-14-00724-CR In the Court of Appeals for the Third District Austin, Texas
Mark Fruge,
Appellant
v.
The State of Texas,
Appellee Appeal from the 331st Judicial District Court Travis County, Texas
Cause Numbers D-1-DC-13-200256; D-1-DC-13-200257; D-1-DC-13-200259
Honorable Judge David Crain, Presiding STATE’S BRIEF
Rosemary Lehmberg District Attorney
Travis County, Texas Matthew Foye
Assistant District Attorney State Bar No. 24043661 P.O. Box 1748
Austin, Texas 78767 512-854-9400 (phone) 512-854-4810 (fax) Matthew.Foye@traviscountytx.gov AppellateTCDA@traviscountytx.gov Oral argument is not requested
TABLE OF CONTENTS
INDEX OF AUTHORITIES...................................................... iv
STATEMENT REGARDING ORAL ARGUMENT ...................... vi
NOTE CONCERNING ABBREVIATIONS ................................ vi
STATEMENT OF THE CASE .................................................. vi
STATEMENT OF FACTS ......................................................... 1
SUMMARY OF THE STATE’S ARGUMENT ............................. 7
STATE’S ARGUMENT ............................................................. 8
Reply to Point One ................................................................. 8
The trial court did not err in granting the State’s challenge for cause because the veniremember said he would hold the State to a higher burden of proof than required by law. .......................... 8 Beyond a Reasonable Doubt ................................................. 9 Appellant’s Case Law Inapplicable ....................................... 11 Any Error Was Harmless..................................................... 12 Reply to Point Two ............................................................... 14
The trial court did not err in admitting evidence of a bad act by Appellant because the bad act was same-transaction contextual evidence. ................................................................................ 14 Admissible as Same–Transaction Contextual Evidence......... 15 Admissible as Evidence of Flight ......................................... 18 Admissible as Evidence of Intent ......................................... 20 Admissible as Evidence of Identity....................................... 22 Admissible Under Tex. R. Evid. 403 Balancing Test ............. 23 Any Error Was Harmless..................................................... 25 Appellant’s Trial Strategy Was Successful........................ 26 Little Time Spent Developing Evidence............................. 28 No Unfair Surprise or Lack of Notice................................ 29 Overwhelming Evidence of Guilt ...................................... 30 No Risk of Undue Punishment ........................................ 31 ii
Conclusion ..................................................................... 32 PRAYER ............................................................................... 33
CERTIFICATE OF COMPLIANCE AND SERVICE.................. 34
Veniremember 12’s Responses ............................... Appendix A
Opinion: Devoe v. State , 354 S.W.3d 457...................... Appendix B
iii *4 INDEX OF AUTHORITIES Cases
Alba v. State , 905 S.W.2d 581 (Tex. Crim. App. 1995)( overruled on
other grounds ).................................................................... 18, 19
Brown v. State , No. 07-99-2511-CR, 2000 Tex. App. LEXIS 7700
(Tex. App. — Amarillo 2000, no pet.)( not designated for
publication ) ........................................................................ 29, 32
Chambers v. State , 866 S.W.2d 9 (Tex. Crim. App. 1993, cert. den’d)
................................................................................................. 9 Colburn v. State , 996 S.W.2d 511 (Tex. Crim. App. 1998) ............... 9
Coleman v. State , 881 S.W.2d 344 (Tex. Crim. App. 1994) ...... 10, 12
De La Paz v. State , 279 S.W.3d 336 (Tex. Crim. App. 2009) .......... 15
Devoe v. State , 354 S.W.3d 457 (Tex. Crim. App. 2014) ... 14, 15, 16,
17, 18, 19
Gamboa v. State , 296 S.W.3d 574 (Tex. Crim. App. 2009) ............ 13
Geesa v. State , 820 S.W.2d 154 (Tex. Crim. App. 1991)................ 10
Jackson v. State , 822 S.W.2d 18 (Tex. Crim. App. 1990) .............. 10
Jacobs v. State , 787 S.W.2d 397 (Tex. Crim. App. 1990) ................ 8
Jessop v. State , 368 S.W.3d 653 Tex. App. — Austin 2012, no pet.)
............................................................................................... 15 Johnson v. State , 263 S.W.3d 405 (Tex. App. — Waco 2008, pet.
ref’d)........................................................................................ 10 Jones v. State , 982 S.W.2d 386 (Tex. Crim. App. 1998) ................ 12
King v. State , 953 S.W.2d 266 (Tex. Crim. App. 1997) ...9, 26, 28, 30
Kotteakos v. United States , 328 U.S. 750 (1946)........................... 26
McCullen v. State , 372 S.W.2d 693 (Tex. Crim. App. 1963) ........... 22
Miller v. State , 667 S.W2d 773 (Tex. Crim. App. 1984).................. 22
Moses v. State , 105 S.W.3d 622 (Tex. Crim. App. 2003) ............... 18
Murphy v. State , 112 S.W.3d 592 (Tex. Crim. App. 2003) ............. 11
Narvaiz v. State , 840 S.W.2d 415 (Tex. Crim. App. 1992) ............... 8
Paulson v. State , 28 S.W.3d 570 (Tex. Crim. App. 2000) ............... 10
Pondexter v. State , 942 S.W.2d 577 (Tex. Crim. App. 1996) .......... 16
Prible v. State , 175 S.W.3d 724 (Tex. Crim. App. 2005) ................ 14
Reese v. State , 33 S.W.3d 238 (Tex. Crim. App. 2000) .................. 24
Rogers v. State , 853 S.W.2d 29 (Tex. Crim. App. 1993)................. 15
Wainwright v. Witt , 469 U.S. 412 (1985) ........................................ 9
Wyatt v. State , 23 S.W.3d 18 (Tex. Crim. App. 2000).................... 15
iv
Statutes
Tex. Code Crim. Proc. Art. 35.16 ................................................... 8
Tex. Code Crim. Proc. Art. 37.07 ................................................. 32
Rules
Tex. R. App. P. 44.2 .............................................................. 12, 26
Tex. R. Evid. 403 ........................................................................ 23
Tex. R. Evid. 404 ........................................................................ 18
v *6 STATEMENT REGARDING ORAL ARGUMENT The State believes that oral argument is unnecessary because the facts and legal arguments are adequately presented in the briefs
filed by the parties. Therefore, the State is not requesting oral
argument.
NOTE CONCERNING ABBREVIATIONS In this brief, the State refers to the Clerk's Record as “CR” followed by the last three digits of the appellate cause number and
the page number (e.g., CR(-123) 456). The State refers to the
Reporter's Record as “RR” followed by the volume number and then
the page number (e.g., RR v.4, 567). Exhibits are referred to by “St.
Ex.” or “Def. Ex.” and the exhibit number (e.g., St. Ex. 123)
STATEMENT OF THE CASE Appellant was indicted in multiple counts and indictments for several felony offenses, as follows:
D-1-DC-13-200256
Count 1 Aggravated Assault— Deadly Weapon 2 nd degree
D-1-DC-13-200257
1 Although the indictments in these cases list the counts using Roman numerals, for clarity the State will refer to the counts using Arabic numerals.
vi *7 Count 1 Attempted Capital Murder 1 st degree Count 2 Aggravated Assault— Public Servant 1 st degree
D-1-DC-13-200259
Count 1 Aggravated Robbery 1 st degree Appellant pleaded not guilty. A jury trial took place in all three Cause Numbers from October 13 to 17, 2014. CR(-722) 411; CR(-
723) 415; CR(-724) 136. Appellant was convicted of Aggravated
Assault— Deadly Weapon, Aggravated Assault— Public Servant,
and Aggravated Robbery. Id . Appellant was acquitted of Attempted
Capital Murder. CR(-723) 414. On October 20, 2014, the jury
assessed Appellant’s punishment at life imprisonment in each of
the three Cause Numbers. CR(-722) 421; CR(-723) 424; CR(-724)
147. Appellant filed a timely notice of appeal in each cause on
November 3, 2014. CR(-722) 433; CR(-723) 432; CR(-724) 159. The
trial court certified Appellant’s right to appeal on November 6, 2014.
CR(-722) 435; CR(-723) 438; CR(-724) 161.
vii *8 Nos. 03-14-00722-CR; 03-14-00723-CR; 03-14-00724-CR In the Court of Appeals for the Third District Austin, Texas
Mark Fruge,
Appellant
v.
The State of Texas,
Appellee Appeal from the 331st Judicial District Court Travis County, Texas
Cause Numbers D-1-DC-13-200256; D-1-DC-13-200257; D-1-DC-13-200259
Honorable Judge David Crain, Presiding STATE’S BRIEF
To the Honorable Third Court of Appeals:
Now comes the State of Texas and files this brief in response to that of Appellant.
STATEMENT OF FACTS Abraham Martinez was an employee of the armored car company Guarda. RR v.6, 267. Martinez carried a firearm as part of
his duties. Id . On January 14, 2013, he was working at an area
1
known as Capital Plaza. 2 RR v.6, 269. Capital Plaza is located at
5431 North I-35 Service Road. RR v.6, 248-9. One of the stores on
Martinez’s route was Fallas Discount. RR v.6, 270. Martinez entered
the Fallas Discount store and picked up the deposits. RR v.6, 271.
As he was leaving the store, he came around a pillar and there was
a person pointing a gun at him who said, “Give me your bag.” Id .
Martinez complied. The person also told Martinez to place his
weapon on the ground, which he did. Id . The man had on a dark
hoodie, dark jeans, and sunglasses. RR v.6, 271-2. The man put
Martinez’s firearm in the money deposit bag and headed toward the
exit of the Fallas Discount store. RR v.6, 272-3.
Working near the exit of the Fallas Discount store was a cashier named Ann Marie Lozano. RR v.7, 17. Lozano was checking
out a customer when she suddenly saw a man in front of her
pointing a gun in her face. Id . The man pulled the trigger and she
ducked as the man fired two more times. Id. Lozano ducked under
her counter until she heard everyone stop screaming. RR v.7, 17-8.
This aggravated assault on Lozano was witnessed by Martinez. RR
v.6, 273-4. It was also witnessed by Theresa Shanklin, another
2 This location is misspelled in the record as “Capitol Plaza.” *10 employee of Fallas Discount store. RR v.7, 43-4. The perpetrator
then left the Fallas Discount store, and Shanklin witnessed him
running toward the back of the Capital Plaza. RR v.7, 44. The police
arrived within ten minutes. Id .
Austin Police Department (APD) Officer Roosevelt Granderson was on patrol that day near the Embassy Suites Hotel when he
heard the call regarding a robbery in progress at Capital Plaza two
blocks away from his location. RR v.7, 79. While heading toward
Capital Plaza, Granderson was updated by radio that the
perpetrator was in a vehicle at Cameron Road and Highway (Hwy.)
290. RR v.7, 83. The perpetrator was reported to be in a silver
Mercury Grand Marquis. RR v.7, 84. APD Officer Aaron Pippin
joined the pursuit behind Granderson. RR v.7, 85. Granderson
observed the vehicle turning onto the Hwy. 183 service road from
the Hwy. 290 service road and began to pursue. Id .
After some time, the perpetrator turned onto a little road that runs behind an H-E-B grocery store at the Springdale Shopping
Center located off of the Hwy. 183 service road. RR v.7, 88. While
driving on that road, all of a sudden the perpetrator stopped. RR
v.7, 89. When the perpetrator stopped, Granderson tried to get out
of his patrol car and draw his weapon. Id . As Granderson was about
to say, “Austin Police Department,” the perpetrator was already
getting out of his car. Id . The perpetrator had his gun, turned
around, and started firing. Id .
Granderson ducked behind his car door as some of the rounds the perpetrator fired shot out his patrol car window. RR v.7, 89-90.
Granderson drew his weapon and returned fire. RR v.7, 90. At the
same time, Pippin was trying to get his car stopped and draw his
weapon. RR v.7, 155. Pippin fired three rounds before holding his
fire to make certain he did not hit Granderson. RR v.7, 156. The
perpetrator ran in front of his vehicle into a wooded area and
Granderson pursued while trying to give a description over the
radio. Id . Pippin started to follow Granderson. Id . Granderson
pursued until the perpetrator reached a tree line, at which point he
shouted, “Austin Police, stop!” Id . At that moment, the perpetrator
turned around and pointed his weapon at Granderson, who dove to
the ground. Id . The perpetrator fired a couple more shots and then
took off into the tree line. Id .
At that time Granderson began to feel a tingling in his knee.
Id . Pippin assisted Granderson in returning to their patrol cars. Id.
Granderson’s corporal called for EMS, who arrived at the scene and
checked Granderson. Id. It was at that time Granderson learned
that he had a gunshot wound. Id. Granderson had been shot in the
right knee. RR v.9, 33. EMS transported Granderson to
Brackenridge Hospital, where he underwent surgery for the gunshot
wound. RR v.7, 90.
Richard Harris was an Assistant Manager at a Dollar General store located on Manor Road, just west of Hwy. 183. RR v.8, 145.
On January 14, 2013 he was getting off of work at around 3:00
p.m. Id . When he was going to his car he noticed a man coming out
from behind the Dollar General building. Id . The man came over to
Harris’s car as he was getting in. Id . The man produced a pistol and
told Harris that they were going for a ride. RR v.8, 146. The man got
into the backseat and Harris began driving according to the man’s
directions. Id . They made their way to Old Manor Road, where the
man told Harris to pull over and the man left Harris’s car. Id .
During their time in the car, the man told Harris that his name was
Mark, that “he had done something that he shouldn’t have,” and
that he needed to get out of the area. RR v.8, 146-7. The entire
incident in Harris’s car took about fifteen minutes. RR v.8, 146.
APD Officer John Ridenour was one of the officers engaged in the hunt for the perpetrator following the Fallas Discount store
robbery and the shootout with Granderson and Pippin. RR v.8, 163-
4. Ridenour ran the license plate of the perpetrator’s vehicle and it
returned to an address of 9345 East Highway 290 Apt. 13104, also
known as the Rosemont Apartments. RR v.8, 164-5. 3 Ridenour
heard, over the radio, that the perpetrator had forced someone at
gunpoint to drive him to Old Manor Road. RR v.8, 167. Ridenour
knew this location to be right next to the Rosemont Apartments. Id .
Upon learning this information, Ridenour headed to Old Manor
Road and then the Rosemont Apartments. RR v.8, 169. Upon
arriving at the Rosemont Apartments, Ridenour spotted someone
matching the description of the perpetrator about one hundred
yards away from him. RR v.8, 170. Ridenour yelled at the
perpetrator to get his attention and the perpetrator ran back toward
one of the buildings in the complex. RR v.8, 173. Ridenour got the
attention of two nearby officers and then followed the perpetrator.
RR v.8, 174. As Ridenour turned to face the building and readied
3 Although Ridenour testified that he was “not sure if it was 9435 or 9345,” State’s Ex. 46 shows the address to be 9345 E. Hwy. 290.
his rifle, the perpetrator popped up in the breezeway of the building.
Id . Ridenour gave the perpetrator instructions to put his hands up,
which he did. Id . The perpetrator dropped a sweatshirt he had been
holding. Id . The perpetrator complied with orders to get down on his
hands and knees, and other officers were able to handcuff him. Id .
Ridenour checked the sweatshirt and found a gun and U.S.
currency wrapped in plastic inside. RR v.8, 175.
SUMMARY OF THE STATE’S ARGUMENT Point One: Appellant argues that the trial court erred in granting a
State’s challenge for cause to a veniremember. Appellant argues
that granting the State’s challenge denied him a fair and impartial
jury.
Reply: The trial court did not err in granting the State’s challenge for cause because the veniremember said he would hold
the State to a higher burden of proof than required by law. If this
Court finds that the trial court did err, the error did not deprive
Appellant of a lawfully constituted jury.
Point Two: Appellant argues that the trial court erred in allowing
the State to impeach a witness with Appellant’s prior bad act.
Reply: The trial court did not err in admitting evidence of a bad act by Appellant because the bad act was same-transaction
contextual evidence. If this Court finds the bad act was extraneous,
it was properly admitted for purposes other than to show propensity
or conformity. If this Court finds that the trial court did err, the
error did not affect Appellant’s substantial rights.
STATE’S ARGUMENT
REPLY TO POINT ONE
The trial court did not err in granting the State’s challenge for
cause because the veniremember said he would hold the State
to a higher burden of proof than required by law.
The State may challenge a veniremember for cause who has a bias or prejudice against any phase of the law upon which the State
is entitled to rely. Tex. Code Crim. Proc. Art. 35.16(b)(3). A
veniremember who would hold the State to a burden of proof higher
than beyond a reasonable doubt is challengeable for cause. Narvaiz
v. State , 840 S.W.2d 415, 427 (Tex. Crim. App. 1992); Jacobs v.
State , 787 S.W.2d 397, 404 (Tex. Crim. App. 1990). In reviewing the
trial court’s decision to dismiss a veniremember upon a sustained
challenge for cause, considerable deference is given to the trial
court because it is in the best position to evaluate the
veniremember’s demeanor and responses. Wainwright v. Witt , 469
U.S. 412, 429 (1985); Chambers v. State , 866 S.W.2d 9, 22 (Tex.
Crim. App. 1993, cert. den’d). When a veniremember’s answers are
vacillating, unclear, or contradictory, particular deference is
accorded to the trial court’s decision. King v. State , 29 S.W.3d 556,
568 (Tex. Crim. App. 2000); Colburn v. State , 996 S.W.2d 511, 517
(Tex. Crim. App. 1998).
In this case, the trial court excused Veniremember No. 12, Jason Samaniego–Krant, for cause on the grounds that he would
hold the State to a burden of proof higher than beyond a reasonable
doubt. 4
Beyond a Reasonable Doubt
In Paulson v. State , the Court of Criminal Appeals dispensed
with the requirement that a jury charge give a definition of
4 Samaniego-Krant’s complete responses in the record are appended as Appendix A.
reasonable doubt. 28 S.W.3d 570, 573 (Tex. Crim. App.
2000)( overruling Geesa v. State , 820 S.W.2d 154 (Tex. Crim. App.
1991)). However, it remains clear that reasonable doubt is not
“beyond all doubt,” “100 percent certain,” nor “absolute certainty.”
See Coleman v. State , 881 S.W.2d 344, 359-60 (Tex. Crim. App.
1994); Jackson v. State , 822 S.W.2d 18, 28 (Tex. Crim. App. 1990);
Johnson v. State , 263 S.W.3d 405, 417-8 (Tex. App. — Waco 2008,
pet. ref’d).
Veniremember Samaniego–Krant stated, in his own words, that he “would have to be absolutely certain.” RR v.6, 88-9. Further,
when asked if he would require 100 percent certainty he responded,
“Yeah.” RR v.6, 192. The trial prosecutor then explained the law
regarding the State’s burden of proof to which Samaniego–Krant
replied that he would need to be “pretty darn certain.” Id . At this
point, the trial court asked, “And when you say that, would you
need to be 100 percent certain?” Id . Samaniego–Krant
unequivocally answered, “Yes.” Id . He also said that he would not
hold the State to a higher burden of proof. RR v.6, 194. And, he also
answered a question from trial counsel about the State’s burden of
proof by referring to the presumption of innocence. RR v.6, 193.
Samaniego-Krant repeatedly gave answers indicating he would hold the State to a burden of proof of 100 percent certainty.
Although some of his answers were also vacillating and
contradictory, the trial court was in the best position to evaluate his
demeanor and responses. The trial court determined that he could
not follow the law, and deference should be given to the trial court’s
determination.
Appellant’s Case Law Inapplicable
Appellant argues that “prospective jurors may form their own definitions of proof beyond a reasonable doubt” and cites Murphy v.
State , 112 S.W.3d 592 (Tex. Crim. App. 2003) and Garrett v. State ,
851 S.W.2d 853 (Tex. Crim. App. 1993). However, both of those
cases dealt with a jury’s consideration of future dangerousness
(special issue number two) in a death penalty case.
The Court of Criminal Appeals distinguished consideration of future dangerousness from the definition of beyond a reasonable
doubt at guilt-innocence:
“In Garrett , this Court held a veniremember is not subject to challenge for cause simply because the *19 veniremember would set his reasonable doubt threshold higher than the legal minimum in order to affirmatively answer special issue two. Garrett is clearly distinguishable because the trial court was entitled to find [the veniremember] would not find appellant guilty even if the State proved its case beyond a reasonable doubt.”
Coleman v. State , 881 S.W.2d 344, 360 (Tex. Crim. App. 1994).
Therefore, this is not just a matter of “higher threshold”, as Appellant claims. Rather, Appellant’s position would allow any
veniremember to hold the State to a higher burden by simply
making his or her personal definition of “beyond a reasonable
doubt” be “100 percent certainty” or “beyond all doubt.”
Any Error Was Harmless
The issue in this case is an application of Article 35.16(b)(3), so it is not of constitutional dimension and any error must be
disregarded unless it affected substantial rights. Tex. R. App. P.
44.2(b); Jones v. State , 982 S.W.2d 386, 391-92 (Tex. Crim. App.
1998). In the context of erroneous exclusions of veniremembers,
this means that the record must show that “the error deprived the
defendant of a lawfully constituted jury.” Jones , 982 S.W.2d at 394.
Appellant asks this Court to find that any error in excluding Veniremember Samaniego–Krant is not subject to a harmless error
review. However, Appellant relies upon authority that is specific to
excluding veniremembers based upon their views on the death
penalty in death penalty cases. Moreover, Appellant’s claim has
already been expressly rejected by the Court of Criminal Appeals:
“Appellant relies on Gray v. Mississippi to support his position. But the Supreme Court has explained that the broad language in Gray was too sweeping to be applied literally and should not be extended beyond the context of the “‘erroneous Witherspoon exclusion’ of a qualified juror in a capital case.” This Court has also held that, when Witherspoon error is not at issue, the erroneous excusal of a veniremember will call for reversal “only if the record shows that the error deprived the defendant of a lawfully constituted jury.” Under Jones , the question is whether or not the jurors who actually sat were impartial.”
Gamboa v. State , 296 S.W.3d 574, 590 (Tex. Crim. App. 2009)
(internal footnotes omitted).
Appellant points to no evidence in the record, and has made no showing of any kind, that the exclusion of Samaniego–Krant
deprived him of a lawfully constituted jury or that the jurors who
actually sat were not impartial. Therefore, even if the trial court
erred in granting the State’s challenge for cause on Samaniego–
Krant, Appellant’s substantial rights were not affected, and the
judgment should be affirmed.
REPLY TO POINT TWO
The trial court did not err in admitting evidence of a bad act by
Appellant because the bad act was same-transaction contextual
evidence.
Appellant argues that the trial court erred in admitting evidence of the aggravated kidnapping of Richard Harris. 5
A trial court’s ruling on the admissibility of evidence is
reviewed under an abuse-of-discretion standard. Devoe v. State ,
354 S.W.3d 457, 469 (Tex. Crim. App. 2014); Prible v. State , 175
S.W.3d 724, 731 (Tex. Crim. App. 2005). As long as the trial court's
ruling is within the "zone of reasonable disagreement," there is no
abuse of discretion, and the trial court’s ruling will be upheld.
Devoe , 354 S.W.3d at 469; Prible , 175 S.W.3d at 731. Moreover, if a
trial court’s evidentiary ruling is correct on any applicable theory of
law, it will not be disturbed, even if the trial judge gave the wrong
5 Discussed in detail in the Statement of Facts on page 5.
reason for his correct ruling. Devoe , 354 S.W.3d at 469; Jessop v.
State , 368 S.W.3d 653, 686 (Tex. App. — Austin 2012, no pet.).
Admissible as Same–Transaction Contextual Evidence 6
Evidence of another crime, wrong, or act is admissible as same–transaction contextual evidence where “several crimes are
intermixed, or blended with one another, or connected so that they
form an indivisible criminal transaction, and full proof by
testimony… of any one of them cannot be given without showing
the others.” Devoe , 354 S.W.3d at 469; Wyatt v. State , 23 S.W.3d
18, 25 (Tex. Crim. App. 2000)(quoting Rogers v. State , 853 S.W.2d
29, 33 (Tex. Crim. App. 1993)). The jury is entitled to know all
relevant surrounding facts and circumstances of the charged
offense. Devoe , 354 S.W.3d at 469. Under Rule 404(b), same–
transaction contextual evidence is admissible when the offense
would make little or no sense without also bringing in that
evidence. Devoe , 354 S.W.3d at 469; Wyatt , 23 S.W.3d at 25
6 Appellant asserts that he was never charged with this crime. Appellant’s Brief, 12. However, the record indicates that Appellant was in fact charged with
this offense in Cause No. D-1-DC-15-200255. RR v.3, 4. For consistency, the
State will refer to the incident involving Mr. Harris as “the aggravated
kidnapping.”
(quoting Pondexter v. State , 942 S.W.2d 577, 584 (Tex. Crim. App.
1996)).
The facts of this case are very similar to those in Devoe . 7 In
Devoe , the Court of Criminal Appeals found that a theft of a gun, an
aggravated assault, and a theft of a truck in Llano, Texas; a murder
and attempted murder in a bar in Marble Falls, Texas; four
murders in a residence in Jonestown, Texas; and a theft of a car at
another residence in Greencastle, Pennsylvania, all constituted one
extended criminal episode. Devoe , 354 S.W.3d at 462-65. These
offenses covered a period of two days, from August 24th through
August 26th. Id . Devoe was tried for two of the murders in
Jonestown, but the Court of Criminal Appeals found that the entire
chain of events was admissible same–transaction contextual
evidence because the evidence was intermingled between all of the
events and Devoe did not rest between incidents. Id . at 470.
That is the situation in the cases before this Court. Appellant committed one offense after another, in a continuous episode, and
without rest in between incidents. The weapons and stolen property
7 Given the lengthy exposition of facts in the Devoe opinion, it has been appended as Appendix B.
from each incident were used or linked with each subsequent
incident. Evidence of the aggravated kidnapping of Harris was
necessary for the jury to understand the prolonged criminal episode
and to explain the timeline from the aggravated robbery at the
Fallas Discount store to when Appellant fled back to the Rosemont
Apartments where he was ultimately captured by police. The
aggravated kidnapping explains how Appellant got to his
apartment, and excluding it would have put a damaging hole in the
State’s case.
Appellant also contends that “evidence of the charged offense was presented in its entirety prior to the extraneous offense.”
Appellant’s Brief, 15. However, this does not preclude the
admissibility of same–transaction contextual evidence. In Devoe , the
murders for which the defendant was tried occurred days before the
other offenses were committed, but the Court of Criminal Appeals
still found those subsequent offenses to be admissible as same–
transaction contextual evidence. 354 S.W.3d at 462-5.
Admissible as Evidence of Flight
Evidence of extraneous offenses is not admissible at the guilt phase of a trial to prove that a defendant committed the charged
offense in conformity with a bad character. Tex. R. Evid. 404(b);
Devoe , 354 S.W.3d at 469. However, extraneous offense evidence
may be admissible when it has relevance apart from character
conformity. Devoe , 354 S.W.3d at 469; Moses v. State , 105 S.W.3d
622, 626 (Tex. Crim. App. 2003). For example, it may be admissible
to show proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident. Id.
Even if this Court finds that the aggravated kidnapping was not same–transaction contextual evidence, the aggravated
kidnapping was admissible as evidence of Appellant’s flight. It is
axiomatic that flight is admissible as a circumstance from which an
inference of guilt may be drawn. Devoe , 354 S.W.3d at 470; Alba v.
State , 905 S.W.2d 581, 586 (Tex. Crim. App. 1995)( overruled on
other grounds ). If the extraneous offense is shown to be a
necessarily related circumstance of the defendant's flight, it may be
admitted to the jury. Id .
The cases before this Court again mirror the situation in Devoe . In Devoe , the theft of the vehicle from Betty DeHart in
Greencastle, Pennsylvania was some two days after the murders for
which Devoe was tried. Devoe , 354 S.W.3d at 463-5. Devoe was
apprehended, after his flight with DeHart’s vehicle, with evidence
from his other crimes. Id. at 470. As in Devoe , Appellant was
apprehended after the aggravated kidnapping with evidence from
the other offenses he had committed that day.
In Alba , in which the court ruled that an extraneous offense was admissible as evidence of flight, the appellant forced two men
to give him a ride in a car by showing a gun to one of them. Alba ,
905 S.W.2d at 586. This incident occurred within an hour after
Alba had committed murder, deceived a police officer when he left
the crime scene, and abandoned his own car. Id .
The situation in the cases before this Court is even more tightly intertwined than the offenses in Alba . The aggravated
kidnapping occurred immediately after Appellant abandoned his
own car while engaging in a shootout with Officers Granderson and
Pippin. The timeline in this case is even more compressed than
those in Devoe and Alba , making the evidence of Appellant’s flight
by the aggravated kidnapping of Mr. Harris even more relevant and
probative.
Admissible as Evidence of Intent
The aggravated kidnapping was also admissible as evidence of Appellant’s intent. The key issue at trial was whether or not
Appellant had the specific intent to commit capital murder. Trial
counsel laid the ground work for this strategy during jury selection.
RR v.6, 145-150. Trial counsel specifically explored the situation of
someone shooting towards others while running from them. Id. Trial
counsel asked the venire panel, in that situation, “[i]s his intent to
slow them down or to hit them?” RR v.6, 146. Later, trial counsel
posed a rhetorical question to the venire panel, asking “Is his intent
to get away or is his intent to shoot somebody?” RR v.6, 147. Trial
counsel then asked “[i]f it’s not his intent, is it knowingly when he’s
doing that?” RR v.6, 148.
Trial counsel raised this theory during the State’s case-in-chief on cross-examination of the State’s witnesses. Trial counsel asked
Officer Granderson questions about whether firing a weapon while
moving decreases one’s chances of hitting the target. RRv.7, 115,
117. Trial counsel asked similar question on cross-examination of
APD Detective Carlos Vallejo. RR v.7, 135-36.
During his testimony, Appellant admitted committing all of the offenses for which he was on trial, except Attempted Capital
Murder. RR v.9, 55-66. When asked if it was his intent to shoot the
officers, he answered “[n]o, sir. I wasn’t trying to hurt anyone.” RR
v.9, 65. Appellant claimed that he was not trying to shoot the
officer, but that he “fired some shells over the car to get them to
shoot at me.” RR v.9, 59.
Furthermore, on cross-examination Appellant specifically admitted to committing the offenses of aggravated robbery, and
aggravated assault with a deadly weapon. RR v.9, 73-4. Appellant
then answered questions that confirmed each element of the offense
of aggravated assault against a public servant. RR v.9, 77-82.
However, he continued to maintain his innocence with regard to the
Attempted Capital Murder Charge, stating, “[m]y intention was not
to hurt anyone.” RR v.9, 79.
Appellant claimed he only set out that day to get police officers to kill him. RR v. 9, 55. He claimed throughout his testimony that
his conduct that day was intended not to hurt anyone, but to bring
the police to his location. RR v. 9, 55, 57-59. However, when the
aggravated kidnapping occurred, Appellant had already
encountered and eluded the police. RR v.9, 60. Therefore, the
aggravated kidnapping evidence was highly probative to prove that
Appellant’s intent was not to draw the police to him, since he had
already done so, but rather to get away from the police.
Given that Appellant’s strategy put his lack of intent to commit capital murder at the center of the trial, evidence of the aggravated
kidnapping was admissible to prove his intent.
Admissible as Evidence of Identity
The aggravated kidnapping was also admissible as evidence of Appellant’s identity. Identity is an element of an offense that the
State must prove beyond a reasonable doubt. See Miller v. State ,
667 S.W2d 773, 775 (Tex. Crim. App. 1984); McCullen v. State , 372
S.W.2d 693, 695 (Tex. Crim. App. 1963).
There was specific evidence related to proving the element of identity that occurred during the aggravated kidnapping offense.
While in the car and forcing Harris to drive at Appellant’s direction,
Appellant told Harris that “his name was Mark and he had done
something that he shouldn’t have, but he needed to get out of the
area.” RR v.8, 147. This admission was highly probative evidence
that Appellant, who was not apprehended until the Rosemont
Apartments, was the person who had committed the initial
aggravated robbery at the Fallas Discount Store. As Appellant
successfully escaped from the scene of every offense he committed
until he was apprehended at the Rosemont Apartments, it was
important for the State to account for every possible moment
between Appellant’s arrival at the Fallas Discount store and his
apprehension.
Admissible Under Tex. R. Evid. 403 Balancing Test
The probative value of the aggravated kidnapping evidence was not substantially outweighed by the danger of unfair prejudice. Tex.
R. Evid. 403. In conducting a Rule 403 analysis, courts should
consider: (1) how probative is the evidence; (2) the potential of the
evidence to impress the jury in some irrational, but nevertheless
indelible way; (3) the time the proponent needs to develop the
evidence; and (4) the proponent's need for the evidence. Reese v.
State , 33 S.W.3d 238, 240-41 (Tex. Crim. App. 2000).
In the case before the Court, the aggravated kidnapping evidence was highly probative of Appellant’s identity and intent. The
aggravated kidnapping evidence’s probative nature as to identity
and intent are discussed in the immediately preceding sections. 8
The potential for the aggravated kidnapping evidence to impress the jury in an irrational but indelible manner is very low.
The aggravated kidnapping evidence was a small part of Appellant’s
conduct that day. Further, it was far less egregious than the other
evidence the jury had already heard concerning the events in the
Fallas Discount store and at the H-E-B. In both of those instances,
Appellant actually discharged his firearm and even shot one victim,
Granderson. By contrast, Harris was unharmed and Appellant did
not fire his weapon during the aggravated kidnapping.
Very little time was devoted to introducing the evidence of the aggravated kidnapping. The aggravated kidnapping evidence was
introduced through a single witness, Harris, while there were
8 Discussed on page 20-23.
seventeen total witnesses in the State’s case–in–chief. 9 It also
involved the use of four exhibits out of some three hundred twenty-
six exhibits introduced by the State in the guilt-innocence phase. 10
The State had great need for the evidence. It was the only evidence that permitted the State to account for the time gap
between the end of the shootout with Granderson and Pippin at the
H-E-B and Appellant’s capture at the Rosemont Apartments. It was
also the only evidence of continued violent conduct after escaping
the police, which made it unique in proving Appellant’s intent.
Upon consideration of the Rule 403 balancing test factors, the probative value of the aggravated kidnapping evidence was not
substantially outweighed by the danger of unfair prejudice.
Any Error Was Harmless
If this Court finds that the trial court did abuse its discretion and that admission of the aggravated kidnapping evidence was
error, this Court should not reverse unless it finds that the error
9 One other witness, Susan O’Dell Gibson, testified to processing Harris’s car for evidence but gave no testimony as to the facts of the aggravated
kidnapping. RR v.7, 69-70.
10 Three exhibits, State’s Ex. 218-220, were introduced through Harris. One exhibit, State’s Ex. 132, was shown to Harris but had already been introduced.
affected Appellant’s substantial rights. Tex. R. App. P. 44.2(b). A
substantial right is affected when the error had a substantial and
injurious effect or influence in determining the jury’s verdict. King v.
State , 953 S.W.2d 266, 271 (Tex. Crim. App. 1997)(citing Kotteakos
v. United States , 328 U.S. 750, 776 (1946)). In these cases, the
Court should find that Appellant’s substantial rights were not
affected. 11
Appellant’s Trial Strategy Was Successful
Appellant’s trial strategy was to admit that he was guilty of Aggravated Robbery, Aggravated Assault, and Aggravated Assault
Against a Public Servant, but deny that he had the requisite specific
intent to commit the offense of Attempted Capital Murder. 12 RR v.9,
55-66, 74-75, 79. Appellant was acquitted by the jury of the
11 Appellant asserts that the State “introduced photos early in the guilt innocence phase of trial labeled ‘car jacking.’” Appellant’s Brief, 12. This is an
erroneous assertion. After searching the record, the State found no exhibits
labeled “car-jacking.” Nor were there any exhibits marked with “aggravated
kidnapping.”
12 Appellant makes no claim that the admission of the aggravated kidnapping evidence in any way influenced his decision to testify. Indeed,
Appellant’s direct testimony covers some fourteen pages of the record, of which
only three and one-fifth pages relate to the aggravated kidnapping. Appellant’s
cross-examination testimony covers nine and two-fifths pages of the record, of
which one question mentions the aggravated kidnapping.
Attempted Capital Murder count. CR(-257) 413-14. Therefore, if it
was error to admit the aggravated robbery evidence, there was no
harm to Appellant because his trial strategy still succeeded.
In fact, his testimony about the aggravated kidnapping helped his trial strategy. In an effort to support his strategy, he testified
numerous times about how he did not harm, or intend to harm,
other victims and witnesses that day. RR v.9, 57, 62-64.
Appellant also specifically testified that he “didn’t threaten” Harris. RR v.9, 60. He added that he told Harris his first name
because he “was trying to make him feel at ease” and “just trying to
make him feel” that Appellant “wasn’t going to hurt him...” RR v.9,
61. Appellant also testified that he did not point his gun at Harris,
but just showed it to him and then put it in his pocket. RR v.9, 66.
Additionally, trial counsel advanced this strategy during closing argument. Trial counsel devoted some five pages, out of
twelve in the record, to arguing that the State had failed to prove
the element of specific intent on the Attempted Capital Murder
charge. RR v.9, 115-120. Trial counsel later returned to that issue
once more. RR v.9, 124. Finally, trial counsel told the jury that,
unlike Attempted Capital Murder, Appellant was guilty of the
Aggravated Assault of a Public Servant count because “that’s the
proper charge.” RR v.9, 120.
Therefore, if it was error to admit the aggravated kidnapping evidence, there was no harm to Appellant because he was acquitted
of the one count on which he maintained his innocence throughout
the trial.
Little Time Spent Developing Evidence
It took very little time to introduce evidence of the aggravated
kidnapping. Harris’s testimony and the exhibits are previously
mentioned. 13 The State mentioned the aggravated kidnapping
evidence once during cross-examination of the Appellant. RR v.9,
75. The evidence of the aggravated kidnapping was mentioned only
once by the State in closing argument. RR v.9, 128. The aggravated
kidnapping evidence was never mentioned as character or
propensity evidence. See King , 953 S.W.3d at 273 (“that the State
did not emphasize the reports minimizes the deleterious effect, if
any, the documents had on the jury’s decision.”); Rodriguez , 974
13 Discussed on page 24-25.
S.W.2d at 370 (“Furthermore, no one mentioned the inadmissible
evidence again during the guilt/innocence phase of the trial. So, the
extent to which the jury may have recalled and assigned it weight is
questionable.”).
No Unfair Surprise or Lack of Notice
Nor was Appellant unfairly surprised by the State’s offering of
the aggravated kidnapping evidence at trial. See Brown v. State , No.
07-99-2511-CR, 2000 Tex. App. LEXIS 7700, at *12 (Tex. App. —
Amarillo 2000, no pet.)(not designated for publication)(“Moreover,
the admission of the extraneous evidence was not unannounced or
surprising. Quite the contrary, the State received permission from
the court to present it before doing so. Thus, reversal is not needed
as punishment to assure the State's compliance with the rules of
evidence.”) Appellant makes no claim of being surprised by the
evidence of the aggravated kidnapping. Rather, the record reflects
that Appellant was specifically advised of the State’s intent to try to
introduce the aggravated kidnapping evidence at trial. RR v.8, 141.
Appellant had more than five months’ advance notice that this
evidence might be introduced at trial. CR(–256) 144-46.
Overwhelming Evidence of Guilt
Further, there was overwhelming evidence of Appellant’s guilt.
See King , 953 S.W.2d at 273 (“While the case summaries and
disciplinary reports did contain some potentially harmful evidence,
that evidence was rendered insignificant by properly admitted
evidence of future dangerousness.”); Rodriguez , 974 S.W.2d at 370
(“Finally, though it was not free of conflict, ample evidence was
properly admitted which depicted appellant's guilt.”) As mentioned
above, sixteen witnesses and some three hundred twenty-two
exhibits were introduced in the State’s case-in-chief, separate from
any aggravated kidnapping evidence. Additionally, Appellant took
the stand and admitted committing the Aggravated Robbery, the
Aggravated Assault with Deadly Weapon, and the Aggravated
Assault Against a Public Servant. RR v.8, 56-59, 63-65, 73, 78-81.
Numerous witnesses identified Appellant as the perpetrator of each offense. From the Fallas Discount store scene, Lozano and
Shanklin identified Appellant as the person who robbed Martinez
and shot at Lozano and her register. RR v.7, 21, 45. From the crime
scene at the H-E-B, Pippin identified Appellant as the person who
engaged in a shootout with himself and Granderson. RR v.7, 158-
59. From the Rosemont Apartments scene, Ridenour identified
Appellant as the person he chased and took into custody. RR v.8,
175-76. The stolen bag holding the money and Martinez’s gun were
found in Appellant’s vehicle. RR v.7, 123-24. There was also an item
found in Appellant’s vehicle that had his name and the Rosemont
Apartment address on it. RR v.7, 124. Appellant’s vehicle was
linked to him through testimony and registration records. RR v.8,
108-110, 165, 186-88; St. Ex. 46. The money stolen from Martinez
and Appellant’s own gun, which matched the type of magazine
found in his vehicle, were found on Appellant. RR v.8, 181-85.
Therefore, the evidence of Appellant’s guilt was overwhelming.
No Risk of Undue Punishment
Evidence of the aggravated kidnapping was admissible during the punishment phase of trial, and was so in the form that it came
into evidence during guilt-innocence (i.e., the testimony of Harris
and exhibits). Tex. Code Crim. Proc. Art. 37.07; Brown , 2000 Tex.
App. LEXIS 7700 at 12. Therefore, it cannot be said that the
aggravated kidnapping evidence somehow induced the jury to
assess undue punishment. Brown , 2000 Tex. App. LEXIS 7700 at
12.
Conclusion
These combined factors show that, even if admission of the aggravated kidnapping evidence was error, Appellant’s substantial
rights were not affected and the judgment should be affirmed.
PRAYER The State requests that this Court overrule Appellant’s points of error and affirm the trial court’s judgment.
Respectfully submitted, Rosemary Lehmberg District Attorney Travis County
/s/ Matthew Foye Matthew Foye Assistant District Attorney State Bar No. 24043661 P.O. Box 1748
Austin, Texas 78767 512-854-9400 (phone) 512-854-4810 (fax) Matthew.Foye@traviscountytx.gov AppellateTCDA@traviscountytx.gov *41 CERTIFICATE OF COMPLIANCE AND SERVICE I certify that this brief contains 5,957 words, based upon the computer program used to generate this brief and excluding words
contained in those parts of the brief that Texas Rule of Appellate
Procedure 9.4(i) exempts from inclusion in the word count, and that
this brief is printed in a conventional, 14-point typeface.
I further certify that, on the 28 th day of October, 2015, a true and correct copy of this brief was served, by U.S. mail, electronic mail,
telephonic document transmission, or electronically through the
electronic filing manager, to Appellant’s attorney, Ariel Payan, 1012
Rio Grande Street, Austin, Texas 78701.
/s/ Matthew Foye
Matthew Foye
Assistant District Attorney *42 Appendix A
Veniremember 12’s Responses kind of tricky where people kind of may feel like -- for me it feels like beyond a reasonable doubt is to be like certain -- to me. And so that kind of thing is okay. I'm just saying that if you were sitting at the end of the day after hearing all the evidence and you said, Well, there's this one little doubt over here and it's not even reasonable, because it would involve martians coming in a spaceship; but it's a doubt so you have to find him not guilty. That's the kind of thing -- that's an extreme example, but that's the sort of thing that we're talking about. You-all feel, like, you could hear all the evidence and if you are convinced beyond a reasonable doubt that you would be able to return a verdict of guilty?
MS. CHRISTIANSEN: That, yes.
MR. MORRIS: Yeah, I can find a reason. MR. FOYE: What's that?
MR. MORRIS: Yeah, I could.
MR. FOYE: Good. Excellent. Okay. So based on that kind of clarification, Row 2, anyone who would still want me to prove it beyond all possible doubt?
No. 12?
MR. SAMANIEGO-KRANT: I believe that we've been talking about incarceration, taking years of RAQUEL KOCHER, CSR 331ST J UDI CI AL DI STRI CT COURT someone's life that I would have to be absolutely certain. The level of false convictions are incorrect, and with convictions these days I would feel horrible about sending someone to prison for something that was doubtful.
MR. FOYE: Okay. Thank you. Anyone else? Row 2?
VENIRE PANEL: (No response) MR. FOYE: Row 3, anyone?
VENIRE PANEL: (No response) MR. FOYE: Okay. Row 4 is Mr. Bidwell.
You feel you would want to know all about it?
MR. BIDWELL: (Nods head) MR. FOYE: Okay. Thank you.
Now, Row 5, anyone? Ms. Janssen? MS. JANSSEN: Same thing.
MR. FOYE: Same thing as 12?
MS. JANSSEN: Yes.
MR. FOYE: Okay. And Row 6, anyone back there?
VENIRE PANEL: (No response) MR. FOYE: And Row 7?
VENIRE PANEL: (No response) MR. FOYE: Anyone on this side of the room?
RAQUEL KOCHER, CSR 331ST J UDI CI AL DI STRI CT COURT officer comes in and says, no, this is what happened. And you just go with the officer because they're on the side of truth and the other person has to be lying, it's just not always like that. It's not black and white like that, but I think that's what we expect things to be.
Yes, sir, Mr. -- 27?
MR. COLE: 27, Cole. You know, since we're talking about that case right there, I feel like the prosecutor did provide the evidence because of a sworn police officer who is also sworn in court and he had the instrument to speak of.
Also, to me, reasonable doubt, nobody is just -- I feel I've had those kind of tickets, too, but it's very easy to accidentally rest your foot on the accelerator and perhaps increase the speed of your car that is under cruise control. So there's reasonable doubt right there that they may have been going 93 and just didn't realize it.
MR. HILDRETH: Okay. Well, see, here's -- you're going the opposite way. The Defense doesn't have to establish reasonable doubt about the State's case. We just have to attack it.
What the law requires is the State prove their burden beyond a reasonable doubt. And what I mean RAQUEL KOCHER, CSR 331ST J UDI CI AL DI STRI CT COURT is there can be no other reasonable explanation. So now the definition of what is reasonable? I mean -- yes, sir, No. 12?
MR. SAMANIEGO-KRANT: It just kind of sounds to me like in talking about reasonable doubt, it almost sounds to me like you're trying to prove innocence instead of proving guilty. It just sounds backwards to me like you're trying to prove innocence -- you're guilty until proven innocent. It just sounds like that to me.
MR. HILDRETH: Okay. Let me ask you this. When you all walked in, who looked at the tables and tried to figure out who the defendant was? VENIRE PANEL: (Indicating) MR. HILDRETH: I know that's normal human behavior, sure.
Okay, Mr. Custer, did you determine who the defendant was?
MR. CUSTER: Yes, sir.
MR. HILDRETH: Okay. And did you wonder what he did?
MR. CUSTER: Yes, sir.
MR. HILDRETH: Who else wondered what he did? Raise your hands high.
VENIRE PANEL: (Indicating) RAQUEL KOCHER, CSR 331ST J UDI CI AL DI STRI CT COURT not --
THE COURT: Did he come up here to talk to about something?
MR. LEVINGSTON: He was in hospice care for his dog.
THE COURT: The first time he said it, I thought it was his --
MS. CHEN-KERCHER: A person.
THE COURT: -- 16-year-old, I figured must have been a brother or sister.
MR. HILDRETH: Yeah. I think that's what he wanted when he --
MR. FOYE: He did. He said a close family member. A 16-year-old --
THE COURT: It's his dog.
MR. FOYE: I mean, it's impressive the dog is 16 years old, but I didn't -- (Discussion off record) THE COURT: Okay. Mr. Samaniego-Krant, can you come up to the bench close enough for us to talk to you? Can you -- can one of you-all illuminate the area you want to talk about?
(Venire Member No. 12, Mr.
Samaniego-Krant, approached bench)
MR. LEVINGSTON: Yeah, Judge, if I may? RAQUEL KOCHER, CSR 331ST J UDI CI AL DI STRI CT COURT Mr. Samaniego, I know when Mr. Foye was questioning you about the burden of proof and reasonable doubt and beyond a reasonable doubt, you had made the comment that you would need to be 100 percent certain. MR. SAMANIEGO-KRANT: Yeah.
MR. LEVINGSTON: And you understand that the law is beyond a reasonable doubt. There is actually -- while there is no definition for beyond a reasonable doubt, there is case law that says it's not 100 percent certainty. Would you be able to follow the law and listen to a case and determine guilt or innocence based on beyond a reasonable doubt, or would you need 100 percent certainty?
MR. SAMANIEGO-KRANT: In my personal beliefs, spirituality and opinion I just feel that I'm taking into consideration someone else's livelihood, I would need to be pretty darn certain.
THE COURT: Okay. And when you say that, would you need to be 100 percent certain?
MR. SAMANIEGO-KRANT: Yes.
MR. LEVINGSTON: Okay. No questions, Judge.
THE COURT: Did you have any backup questions?
MR. HILDRETH: When you say "100 percent RAQUEL KOCHER, CSR 331ST J UDI CI AL DI STRI CT COURT certain," are you attributing that to beyond a reasonable doubt level or -- I'm not sure what -- because you say you have to be pretty confident. MR. SAMANIEGO-KRANT: If I'm going to commit (sic) somebody to a crime, then I would want to be 100 percent certain that that crime was committed beyond a reasonable doubt.
MR. HILDRETH: Okay. And is that what you require -- are you -- there is not percentage to beyond a reasonable doubt. Now, for some people it might be 100 percent.
MR. SAMANIEGO-KRANT: Right.
MR. HILDRETH: The point is, are you going to hold the State to its burden, or are you going to require the State to a higher burden than what they're required?
MR. SAMANIEGO-KRANT: I would hold someone innocent until proven guilty, not the other way around, which to me is how it sounds with our discussion. It sounds like people are trying to prove innocence instead of guilt.
MR. HILDRETH: Okay.
MR. SAMANIEGO-KRANT: So I'm -- yes. I mean --
MR. HILDRETH: Are you going to require RAQUEL KOCHER, CSR 331ST J UDI CI AL DI STRI CT COURT the State -- to hold the State to a higher burden of proof than beyond a reasonable doubt?
MR. SAMANIEGO-KRANT: No.
MR. HILDRETH: Okay. I have no further questions.
THE COURT: All right. You can step back outside. Thanks.
(Venire Member No. 12, Mr. Samaniego-Krant, approached bench) exited courtroom) THE COURT: Okay. Now, what about Custer, No. 13? We're going to get back to him. No motions on Custer?
MR. HILDRETH: Nothing on 13. THE COURT: Edwards?
MR. HILDRETH: No, sir.
THE COURT: Okay. Did you-all want to talk -- does the State still have a motion to strike? MR. LEVINGSTON: I do, Judge.
THE COURT: What does was the Defense say on Samaniego?
MR. HILDRETH: We're going to object to that. He said he would would hold the State to its burden and not more.
THE COURT: Okay. But he said 100 percent three times, so I'll grant the State's motion to RAQUEL KOCHER, CSR 331ST J UDI CI AL DI STRI CT COURT strike for cause. I think he won't follow the law that they're entitled to follow.
(Venire Member No. 12, Mr.
Samaniego-Krant, struck for cause)
THE COURT: So 13 and 14 are good. Kelly Hayden, any motions?
(No response)
THE COURT: Scott Broaddus, any motions? MR. HILDRETH: Yes, Your Honor. He said he would have a bias against the State -- I mean, excuse me against the defendant and has a bias for law enforcement.
MR. LEVINGSTON: I agree, Judge. THE COURT: You agree to strike him for cause?
MR. LEVINGSTON: I do.
THE COURT: Swan, No. 17? 18, Flores? 19, Buckner? 20 is excused. JoAnn Parks, 21? Darin Upchurch, 22? Patricia Rowell, 23? Betty Dickson, 24 (sic)?
MR. FOYE: We had talked to 24. She was excused. I believe Betty Dickson -- THE COURT: Yeah. I meant 25, Betty Dickson.
MR. HILDRETH: No, sir. Nothing from the RAQUEL KOCHER, CSR 331ST J UDI CI AL DI STRI CT COURT *52 Appendix B
Opinion:
Devoe v. State , 354 S.W.3d 457 *53 Positive Last updated October 01, 2015 04:42:24 pm GMT
Positive When saved to folder October 01, 2015 04:42:24 pm GMT
Devoe v. State
Court of Criminal Appeals of Texas
December 14, 2011, Delivered
NO. AP-76,289
Reporter
354 S.W.3d 457; 2011 Tex. Crim. App. LEXIS 1669
PAUL DEVOE, Appellant v. THE STATE OF TEXAS defendant’s theft of his friend’s gun, the aggravated assault
of one victim, the killing of the victim from whom he stole the vehicle, and the robbery of yet another victim, because Notice: PUBLISH
the State needed the evidence to give context to defendant’s crime spree. Defendant did not rest between incidents and Subsequent History: Writ of habeas corpus denied Ex he stole the gun to go after women and to then effectuate his parte Devoe, 2014 Tex. Crim. App. Unpub. LEXIS 38 (Tex. flight. Crim. App., Jan. 15, 2014) Outcome
Prior History: [**1] ON DIRECT APPEAL FROM CAUSE
NO. 07-302093 IN THE 403RD DISTRICT COURT, Defendant’s conviction and sentence were affirmed. TRAVIS COUNTY. TRIAL COURT JUDGE: BRENDA P.
KENNEDY. LexisNexis® Headnotes
Case Summary Criminal Law & Procedure > ... > Appeals > Standards of Review > General Overview
Procedural Posture Criminal Law & Procedure > ... > Standards of Review > Substantial Evidence > Sufficiency of Evidence
Defendant appealed a judgment of the 403rd District Court, HN1 In reviewing the sufficiency of the evidence at the
Travis County (Texas), convicting him of capital murder,
specifically the intentional murder of two individuals during punishment phase, an appellate court views the evidence in the light most favorable to the verdict and determine
the same criminal transaction under Tex. Penal Code § whether any rational trier of fact could make the finding 19.03(a)(7)(A) , and sentencing him to death under Tex. beyond a reasonable doubt. Code Crim. Proc. Ann. art. 37.071, § 2(g) . Criminal Law & Procedure > Sentencing > Capital
Overview Punishment > Aggravating Circumstances
On appeal, the court held that the evidence was sufficient to HN2 Some factors a jury may consider when determining show that there was a probability that defendant would whether a defendant will pose a continuing threat to society criminal acts of violence that would constitute a continuing include the following: (1) the circumstances of the capital threat to society under Tex. Code Crim. Proc. Ann. art. offense, including the defendant’s state of mind and whether 37.071, § 2(b)(1) because it showed that: (1) during his he or she was working alone or with other parties; (2) the crime spree, defendant attempted to kill one victim, and did calculated nature of the defendant’s acts; (3) the forethought kill three others; (2) he had a lengthy criminal history; (3) he and deliberateness exhibited by the crime’s execution; (4) had a lengthy history of abusing women; (4) he once the existence of a prior criminal record, and the severity of attempted to strangle his mother; (5) he abused alcohol and the prior crimes; (5) the defendant’s age and personal
drugs and tended to become more violent when he did so; circumstances at the time of the commission of the offense;
and (6) inmates in Texas had access to drugs, alcohol, and (6) whether the defendant was acting under duress or the
weapons, and many violent crimes occurred inside Texas domination of another at the time of the commission of the
prisons. The trial court did not abuse its discretion by offense; (7) psychiatric evidence; and (8) character evidence.
admitting extraneous evidence under Tex. R. Evid. 404(b) of This list is not exclusive.
Page 2 of 14 354 S.W.3d 457, *457; 2011 Tex. Crim. App. LEXIS 1669, **1 HN6 Whether extraneous offense evidence has relevance Criminal Law & Procedure > Sentencing > Capital Punishment > Aggravating Circumstances apart from character conformity, as required by Tex. R. Evid. 404(b) , is a question for the trial court. Thus, a trial court’s
HN3 In determining the special issues, the jury is entitled to ruling on the admissibility of extraneous offenses is reviewed consider all of the evidence at both the guilt and punishment under an abuse-of-discretion standard. As long as the trial stages of trial. Tex. Code Crim. Proc. art. 37.071, § 2(d)(1) . court’s ruling is within the ″ zone of reasonable The circumstances of the offense and the events surrounding disagreement, ″ there is no abuse of discretion, and the trial it may be sufficient in some instances to sustain a ″ yes ″ court’s ruling will be upheld. A trial court’s Rule 404(b) answer to the future dangerousness special issue. ruling admitting evidence is generally within this zone if there is evidence supporting that an extraneous transaction
Criminal Law & Procedure > ... > Appeals > Standards of is relevant to a material, non-propensity issue. If the trial Review > General Overview court’s evidentiary ruling is correct on any theory of law
Criminal Law & Procedure > Sentencing > Capital applicable to that ruling, it will not be disturbed, even if the
Punishment > Aggravating Circumstances trial judge gave the wrong reason for his correct ruling.
Criminal Law & Procedure > Sentencing > Capital Criminal Law & Procedure > ... > Resisting Arrest > Fleeing & Punishment > Mitigating Circumstances Eluding > Consciousness of Guilt
HN4 While good behavior in prison is a factor to consider, Evidence > Admissibility > Conduct Evidence > Prior Acts, it does not preclude a finding of future dangerousness. The Crimes & Wrongs
Court of Criminal Appeals of Texas can review the objective HN7 Flight is admissible as a circumstance from which an evidence of future dangerousness, but it does not engage in inference of guilt may be drawn. And if the extraneous
reviewing the jury’s normative decision on mitigation.
offense is shown to be a necessarily related circumstance of the defendant’s flight, it may be admitted to the jury. Evidence > Admissibility > Conduct Evidence > Prior Acts,
Crimes & Wrongs Criminal Law & Procedure > Trials > General Overview
HN5 Evidence of extraneous offenses is not admissible at Evidence > Types of Evidence > Circumstantial Evidence
the guilt phase of a trial to prove that a defendant committed
the charged offense in conformity with a bad character. Tex. HN8 When the identity of the perpetrator can be established R. Evid. 404(b) . However, extraneous offense evidence may by circumstantial evidence only, identity is a contested issue be admissible when it has relevance apart from character even if the defense rests with the State, puts on no evidence, conformity. For example, it may be admissible to show and raises no defensive theories. proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident. Criminal Law & Procedure > Trials > Jury Instructions > Evidence of another crime, wrong, or act also may be Limiting Instructions admissible as same-transaction contextual evidence where Evidence > Admissibility > Conduct Evidence > Prior Acts, ″ several crimes are intermixed, or blended with one another, Crimes & Wrongs or connected so that they form an indivisible criminal
transaction, and full proof by testimony, of any one of them HN9 A limiting instruction is not required when evidence is
cannot be given without showing the others. The jury is admitted as same-transaction contextual evidence. entitled to know all relevant surrounding facts and
circumstances of the charged offense. But, under Rule Criminal Law & Procedure > ... > Challenges for Cause > Bias 404(b) , same-transaction contextual evidence is admissible & Impartiality > General Overview only when the offense would make little or no sense without Criminal Law & Procedure > Juries & Jurors > Peremptory also bringing in that evidence, and it is admissible only to Challenges > Proving Discriminatory Use the extent that it is necessary to the jury’s understanding of
the offense. HN10 In holding that Batson challenges do not apply to
peremptory strikes based upon religion, the Court of Criminal Criminal Law & Procedure > ... > Standards of Review > Abuse Appeals of Texas stated that, by definition, a religious belief of Discretion > Evidence (unlike race or gender) is a subscription to a set of beliefs and convictions. Strikes based on personal belief have long
Evidence > Admissibility > Conduct Evidence > Prior Acts, been recognized as appropriate and are, in fact, the
Crimes & Wrongs
Page 3 of 14 354 S.W.3d 457, *457; 2011 Tex. Crim. App. LEXIS 1669, **1 foundation of the entire voir dire process. In discussing the difference between striking jurors on the basis of race or gender versus religion, the court stated that attributing to women or African Americans as a group any specific moral, political, or social belief is overly broad because membership in the group does not depend upon subscription to the belief. . P ENAL ODE C 19.03(a)(7)(A) § . Based upon the jury’s answers to the special See T during the same criminal transaction. ODE issues set forth in 37.071, Sections 2(b) Texas Code of Criminal Procedure Article , the trial judge sentenced 2(e) and C Appellant to death. T EX . C ROC RIM EX Art. 37.071, Direct appeal to this Court is automatic. . . P . art. 37.071, § 2(g) [1]
It is invidious because individual members who do not share § 2(h) . Appellant raises nine points of error. After reviewing the belief are made to suffer the attribution anyway. But in Appellant’s points of error, we find them to be without the case of religion, the attribution is not overly broad, and merit. Consequently, we affirm the trial court’s judgment therefore not invidious, when the belief is an article of faith. and sentence of death. Because all members of the group share the same faith by
definition, it is not unjust to attribute beliefs characteristic of Appellant challenges the sufficiency of the evidence at the
the faith to all of them. punishment phase of trial. We shall address this issue first.
The remaining points of error will be addressed in the order Criminal Law & Procedure > Sentencing > Capital presented in the briefs.
Punishment > Mental Retardation In point of error eight, Appellant contends that the evidence Criminal Law & Procedure > Sentencing > Cruel & Unusual is insufficient to prove beyond a reasonable doubt that there Punishment is a probability that he will commit criminal acts of violence
HN11 There is no authority from the United States Supreme that would constitute a continuing threat to society. See art. 37.071, § 2(b)(1) . Specifically, he argues that his behavioral Court or the Court of Criminal Appeals of Texas suggesting record in prison is ″ almost pristine, ″ and therefore, the that mental illness that is a ″ contributing factor ″ in the State’s evidence of problems within the Texas Department
defendant’s actions or that caused some impairment or some of Criminal Justice (TDCJ) should not be weighed against
diminished capacity, is enough to render one exempt from him.
execution under the Eighth Amendment. HN1 In reviewing the sufficiency of the evidence at the
Criminal Law & Procedure > ... > Challenges for Cause > Bias punishment phase, we view the evidence in the light most & Impartiality > Actual & Implied Bias favorable to the verdict and determine whether any rational
HN12 See Tex. Code Crim. Proc. Ann. art. 35.16(a)(10) . trier of fact could make the finding beyond a reasonable doubt. Banda v. State, 890 S.W.2d 42, 50 (Tex. Crim. App. Counsel: For APPELLANT: KARYL ANDERSON KRUG, 1994) ; see also Young v. State, 283 S.W.3d 854, 863 (Tex. Crim. App. 2009) . HN2 Some factors a jury may consider AUSTIN. when determining whether a defendant will [**3] pose a
For STATE: MICHAEL SCOTT TALIAFERRO, ASST. continuing threat to society include the following:
D.A., AUSTIN; LISA C. MCMINN, STATE’S ATTORNEY, 1. the circumstances of the capital offense, including AUSTIN. the defendant’s state of mind and whether he or she was working alone or with other parties;
Judges: HERVEY, J., delivered the opinion of the Court in
which KELLER, P.J., and MEYERS, JOHNSON, 2. the calculated nature of the defendant’s acts;
KEASLER, COCHRAN and ALCALA, JJ., joined. PRICE 3. the forethought and deliberateness exhibited by the and WOMACK, JJ., concurred. crime’s execution; [*462] 4. the existence of a prior criminal record, and
Opinion by: HERVEY the severity of the prior crimes;
Opinion 5. the defendant’s age and personal circumstances at the time of the commission of the offense;
[*461] Appellant, Paul Devoe, was convicted in October 6. whether the defendant was acting under duress or the
2009 of capital murder, specifically the intentional murder domination of another at the time of the commission of
of two individuals (Haylie Faulkner and Danielle Hensley) the offense;
[1] Unless otherwise indicated, all future [**2] references to Articles refer to the Texas Code of Criminal Procedure.
Page 4 of 14 354 S.W.3d 457, *462; 2011 Tex. Crim. App. LEXIS 1669, **3 7. psychiatric evidence; and her. Appellant then fired the gun multiple times into the couch and walls. Appellant spoke of killing himself. He told
8. character evidence. Wilson that he had only two bullets left and that he was going to his trailer, which was parked nearby, to get more.
Keeton v. State , 724 S.W.2d 58, 61 (Tex. Crim. App. 1987); Appellant advised Wilson not to go near her pickup truck, see also Coble v. State, 330 S.W.3d 253, 287-89 (Tex. Crim. but he told her she could go outside to smoke a cigarette. App. 2010) . This list is not exclusive. When Appellant walked out the door, Wilson grabbed her
HN3 In determining the special issues, the jury is entitled to dog and ran from her home. She hid in heavy vegetation and cactus in the adjoining field. She heard Appellant start
consider all of the evidence at both the guilt and punishment [**6] a truck, and he drove it towards Wilson. He stopped
stages of trial. Art. 37.071, § 2(d)(1) ; see also Young, 283 and revved the engine several times before backing up. S.W.3d at 863 . The circumstances of the offense and the Wilson saw Appellant drive away in her blue Dodge Dakota events surrounding it may be sufficient in some instances to
sustain a ″ yes ″ answer to the future dangerousness special pickup truck. The license plate number was 21X-ZJ5. Wilson [*463] later found that her money and credit cards
issue. Banda, 890 S.W.2d at 51 ; [**4] see also Hayes v. were missing from her purse. Investigators recovered State, 85 S.W.3d 809, 814 (Tex. Crim. App. 2002) . .380-caliber bullets and shell casings from her home, and
The evidence presented at guilt revealed that, in late August Wilson turned over Appellant’s day planner, which contained
2007, Appellant stole a silver Jennings .380-caliber handgun a photocopy of Paula Griffith’s driver’s license. ( ″ the gun ″ ), two ammunition magazines, and fifteen Later that evening, Glenda Purcell was at her usual hangout,
Winchester bullets from his friend, Bill Brinlee. Brinlee considered Appellant to be ″ family, ″ as Appellant had O’Neill’s Sports Tavern in Marble Falls. Purcell had recently broken up with Appellant after a tumultuous six-month
previously lived with the Brinlees. Appellant had access to romantic relationship that ended when she asked him to
the house, knew that the Brinlees would be out of town for move out of her home. Following the break-up, Purcell a wedding during the weekend of August 24, and was aware obtained a protective order against Appellant, of which
that the gun was kept in the master bedroom.
Appellant had notice. Michael Allred was on duty as a On August 24, 2007, Appellant was residing at the Llano bartender that night.
home of Sharon Wilson in exchange for work he had agreed At approximately 8:30 p.m., Appellant entered O’Neill’s
to do around her home. At about 3:00 p.m., Wilson came Sports Tavern. He was dressed in what Purcell described as
home to find Appellant outside with the gun. Wilson had his ″ motorcycle attire ″ : a black leather vest, chaps, a cap, previously informed Appellant that she did not allow and a jacket. Purcell immediately called out for someone to
firearms in her home, and she asked that he not bring it in call the police because she had a protective order against
the house. She assumed that Appellant complied with her Appellant. [**7] Appellant then walked over to Purcell, put
request.
his hand over her eyes, and held the gun to her head. He A short while later, Wilson found Appellant looking in her pulled the trigger several times, but the gun jammed. Purcell
purse. He claimed to be looking for a cigarette. Appellant then ran back towards the men’s room where Allred was repairing something. She yelled, ″ Mike, Mike, [Appellant’s]
then went to take a nap. At this point, Wilson decided that here, he’s got a gun. ″ Allred stepped between Purcell and
it was time to ask Appellant to vacate her home. [**5] She
called some friends to be with her when she told him Appellant. Allred tried to persuade Appellant to calm down
because she was afraid of how Appellant might react to the and to give him the gun, but Appellant then shot Allred in
request. While waiting for her friends, she discovered that the chest with a .380-caliber bullet, severing his aorta and
Appellant had emptied the gas can that she had filled for her killing him. Purcell ran out of the back door to the police
lawn mower. Angered, Wilson felt she could wait no longer, station next door. Witnesses saw Appellant flee the bar in a
so she went to confront Appellant. blue Dodge Dakota pickup truck with the license plate 21X-ZJ5. Appellant was headed in the direction of
Upon finding Appellant asleep in her bedroom, Wilson Jonestown. woke him and told him that he needed to leave. Appellant
got up and went directly to the living room couch where he Paula Griffith lived in a house in Jonestown with her
retrieved the gun from a hiding place behind the cushions, fifteen-year-old daughter, Haylie Faulkner. Griffith
and he pointed it at Wilson’s head and mid-section. Wilson previously dated Appellant, but they had not had a romantic
knocked Appellant’s arm so that the gun pointed away from relationship in some time. By all accounts, the break-up
Page 5 of 14 354 S.W.3d 457, *463; 2011 Tex. Crim. App. LEXIS 1669, **7 seemed amicable, and Appellant kept in touch with Faulkner, cigarette butt was found on the floor. No identifiable
even paying her entry fee into some beauty pageants. fingerprints were found at the scene.
On the evening of August 24, Griffith, Faulkner, Faulkner’s Police confirmed that the blue Dodge Dakota pickup truck
friend (Danielle Hensley), and Griffith’s boyfriend (Jay parked at Griffith’s home was the same one that had been
[**8] Feltner) were at Griffith’s home preparing for a trip to used to flee the murder in Marble Falls. Investigators
Fiesta Texas, an amusement park in San Antonio. Griffith collected three Natural Light beer cans, one empty Sport
had obtained tickets to celebrate the last weekend before the cigarette package, cigarette butts from the ashtray, and a set
start of school. The group planned to travel to San Antonio of General Motor keys from the pickup. They also discovered
on Friday night, spend the day at Fiesta Texas on Saturday, that Griffith’s white 2001 Saturn station wagon was missing.
and return to Jonestown late Saturday night. Hensley was to Meanwhile, beginning Friday night, August 24, Appellant
return to her family’s home in Leander on Sunday.
began calling his friend, Brinlee. During his first phone call, Appellant told Brinlee that he had ″ shot at ″ six people and On that Friday evening, August 24, Hensley’s mother and ″ maybe killed two ″ people. He stated that he ″ was on the
step-father began to worry when they did not receive a run. ″ During the second call, Brinlee noticed that Appellant
phone call from her because Hensley normally called to say
good night. On Saturday, her parents were still unable to was not calling from his cell phone; he was now calling
reach Hensley, Griffith, or Faulkner. They called the from a new number. It was later determined that Appellant
Jonestown police, but the police were unable to assist was using Feltner’s cell phone. This second call was placed
because the parents did not know the physical address of at 11:44 p.m. in the vicinity of a cell tower in Belton, Texas.
Griffith’s house. When searching the internet for news of During his second or third phone call to Brinlee, Appellant
any auto accidents or other events that might explain said that ″ he was going after [Purcell] and her father and Hensley’s failure to make contact, Hensley’s step-father mother. ″ He told Brinlee that he had gone to [**11] the bar learned about the murder in Marble Falls and that the police to kill Purcell, but the bartender got in the way. Appellant
were looking for a blue Dodge Dakota pickup truck with the said that he took a couple of shots at Purcell, but the gun
license plate number 21X-ZJ5.
jammed and that was why Purcell was not dead.
On Sunday morning, August 26, Hensley’s parents drove to Records for Wilson’s credit card showed that someone
Griffith’s home in Jonestown. [**9] As they approached the attempted to use it at a Round Rock gas station on August
driveway, Hensley’s step-father saw a blue Dodge Dakota 24. Call records for Feltner’s phone showed points along the
pickup truck parked near the house. He recognized the route that Appellant took as he fled Texas. In addition to the
license plate number from his internet search the day before, call from the Belton area, Appellant used the phone while he
and he knew that something was [*464] wrong. He parked was near the following locations: Mount Sylvan, Texas
a block away and called the police.
(Saturday, August 25 at 3:17 a.m.); Okalona, Arkansas After securing the area, the police entered Griffith’s home to (Saturday, August 25 at 9:12 a.m.); Bakerville, Tennessee
check on the welfare of the people possibly inside and (Saturday, August 25 at 3:30 p.m.); Shippensburg,
discovered the four bodies. Feltner had been shot in the head Pennsylvania (Sunday, August 26 at 2:40 p.m.); and
from close range while sitting at the kitchen table. Griffith Siperstein Plaza, New Jersey (Sunday, August 26 at 6:46
had been shot in the back of her head, apparently while she p.m.). Appellant was traveling to his mother’s home in
was running from the living room. Faulkner had fallen to the Shirley, New York.
living room floor with a gunshot wound to the head. On Sunday, August 26, while Appellant was driving through
Hensley, who was lying on the living room couch, had four Pennsylvania, Griffith’s Saturn station wagon began stalling
gunshot wounds including a fatal wound to the head. The and ″ riding rough. ″ Appellant decided that he needed a group had apparently been preparing dinner as raw meat sat different car, so he left Interstate 81 in the town of
out on the counter and the barbecue grill outside was open. Greencastle. Appellant spotted a ″ nice car ″ in a driveway.
It appeared to the investigators that each of the females’ Armed with the gun, he entered the home of Betty
purses had been searched and the contents dumped onto a [**12] DeHart and found the keys to her blue 2006 Hyundai
couch. Feltner’s duffle bag had also been searched, and his Elantra. He [*465] transferred his items from Griffith’s car
cell phone was discovered to be missing. A carton of into the Hyundai, including a Walmart bag containing
Skydancer cigarettes was on the same couch, and [**10] a ammunition, Skydancer cigarettes, sunglasses, and a road
Page 6 of 14 354 S.W.3d 457, *465; 2011 Tex. Crim. App. LEXIS 1669, **12 map. Appellant then continued driving to New York. An After his return to Texas, Appellant told a cellmate in the Travis County Jail, ″ I’ll be here for a long time . . . I killed
expended .380-caliber bullet and shell casing were recovered six people. ″ Also while in jail, during a recorded conversation
from DeHart’s home. In Griffith’s Saturn station wagon,
investigators found an identification badge for Griffith, a with an acquaintance, Tiffany Waldrop, Appellant told Waldrop that he thought that he would be in jail for ″ [l]ife.
certificate of Faulkner’s participation in a beauty pageant, a I’m getting the death penalty. ″ When Waldrop asked
paper towel holder, a peanut can, and Powerade, Dr. Pepper,
and Coca-Cola bottles. Appellant if he had spoken with Brinlee, Appellant
responded, ″ I’ve talked to [Brinlee], oh, they don’t want Around noon on Monday, August 27, Appellant was located him basically him [sic] talking to me right now . . . . at the home of his friend and former employer, Gerald Because it was [Brinlee]’s gun that I used. ″ Appellant also
Baldoni, in the Long Island town of Shirley, New York. told Waldrop, ″ I just wish I had never had that gun. ″
Baldoni invited the initial officer into his home and told him
that Paul was there. The officer called for back-up, and DNA analysis identified Feltner’s and Allred’s [**15] blood
when the officers subsequently entered the home, Appellant on Appellant’s boots. Appellant’s DNA was on a cigarette
came out into the hallway from a bedroom with the gun butt [*466] found at the Jonestown crime scene and on Dr.
pointed to his head. Appellant asked the officers to call his Pepper and Coca-Cola bottles left in Griffith’s Saturn
mother. He also stated that he did not want to go to jail for station wagon. A DNA profile consistent with a mixture of
what he did because he knew that he was going to spend a Appellant’s and Faulkner’s DNA was found on a Gatorade
long time there. After a short [**13] stand-off, Appellant bottle also left in the station wagon. Ballistics analysis
threw down his weapon and surrendered. determined that the bullets recovered from the Llano, Marble Falls, Jonestown, and Pennsylvania crime scenes
Investigators recovered the gun, which had a bullet in the were all fired from Brinlee’s .380-caliber pistol. chamber and a loaded magazine. They also recovered
Appellant’s black cowboy boots, leather vest, cap, and other The evidence presented at punishment revealed that
clothing, and inside the vest’s pocket, they discovered Appellant shot and killed 81-year-old Betty DeHart when he
Wilson’s credit card, a loaded magazine, loose shells, a Bic stole her blue Hyundai in Greencastle, Pennsylvania. DeHart
lighter, a pocket knife, a business card, and a piece of paper was found lying on her bed with a close-range gunshot
with a cell phone number written on it. DeHart’s Hyundai wound to the head. Appellant claimed to have chased her into her home and that he shot her because ″ she wouldn’t
was found parked at Baldoni’s home; the keys were found stop screaming. ″
in the house. Inside the Hyundai, they recovered Feltner’s
cell phone and the Walmart bag, which contained a box of Appellant possessed a lengthy criminal history. He was
100 Winchester .380-caliber bullets, an open carton of incarcerated in Burnet County, Texas, for various
Skydancer cigarettes, a pair of sunglasses, a road atlas with misdemeanors. Before that, he was jailed in Suffolk County,
the area around DeHart’s home circled in ink.
New York, over twenty times between 1980 and 2004, Pending his extradition to Texas, Appellant was held in including an incarceration in the Gowanda state prison from
custody by the Suffolk County, New York Police Department. 1997 to 2002. Appellant’s convictions in Suffolk County,
Appellant made the following unsolicited statements in the New York, included [**16] aggravated unlicensed operation presence of an officer: ″ They’re going to extradite me back of a motor vehicle, aggravated harassment, criminal trespass,
to Texas, then probably Tennessee, West Virginia, disorderly conduct, endangering the welfare of a child, two
Pennsylvania, then probably back here. I bet they found me convictions for harassment, three for assault, and four for
when I turned my damn cell phone on. I had that bitch felony driving while intoxicated. Appellant’s 1989 assault
turned [**14] off the whole time and they didn’t have a clue conviction was for shooting another young man with a where I was ″ ; ″ I had a good fucking thing going on in 12-gauge shotgun following an altercation that Appellant
Texas, too. Business, house, vehicles. If it wasn’t for my incited; that man testified about that incident and his
stupid fucking girlfriend. One mistake ruined my whole resulting wounds. fucking life ″ ; ″ Do you know how many bodies they found?
Five, six in Texas. Maybe 12 bodies. ″ Appellant also spoke Appellant also had a lengthy history of abusing women. Appellant told a former neighbor that he ″ liked to slap the
with a detective of the Suffolk County Police Department. girls around. ″ Purcell, the woman Appellant attempted to
He described many of the events surrounding the instant
offenses, but he did not speak specifically about the acts of kill in Marble Falls, testified about earlier abuse by
shooting or killing. Appellant. On one occasion, he punched her in the face and
Page 7 of 14 354 S.W.3d 457, *466; 2011 Tex. Crim. App. LEXIS 1669, **16 broke her nose. On another occasion occurring June 15, held a hunting knife to her throat. She managed to fight
2007, while driving, she and Appellant were run off the Appellant off and call 9-1-1. Charges were filed against
road. Appellant chased down the offending truck, forced it Appellant, [**19] and the case was pending at the time of
to stop, and pulled the driver—a young woman—out of the the capital murders.
truck. He threatened to beat up the young woman, but Appellant’s family confirmed that, when Appellant was in
Purcell persuaded him not to do so. Later that same night, his twenties, he once attempted to strangle his mother with
Purcell complained that Appellant had been living in her a telephone cord. Following that incident, Appellant’s
home for four months without paying any bills or helping mother obtained a protective order against him.
out. Appellant [**17] became angry, and he cut Purcell’s
clothes off with a knife, punched her several times, and held The jury also received ample evidence from numerous a knife to her throat. He also hit Purcell with the finial from witnesses that Appellant abused alcohol and drugs and that a bed post, breaking two of her ribs, and he threatened to he tended to become more violent when he did so. shoot her. Purcell subsequently kicked Appellant out of her Appellant’s mother testified, via deposition, that Appellant home and obtained a protective order. became ″ very violent ″ when he was drinking—he ″ would take things apart, tear up the house, and break down doors.
Jody Pagel, a woman whom Appellant had dated in the early He would act like that no matter whose house he was at. ″ 1980s while living in New York, testified regarding three
incidents involving Appellant. During the first incident, Appellant’s substance abuse was also the subject of expert Appellant drank too much and attempted to choke her to testimony. Defense psychiatrist Dr. Robert Cantu interviewed death. Pagel testified that the second incident occurred in Appellant. His understanding from Appellant was that the house, but she could not recall the facts clearly. During Appellant had smoked a half to one ounce of the third incident, they were at a bar when Appellant choked methamphetamine in the 12 hours preceding the instant Pagel so hard that he lifted her up off the floor; he then offense, in addition to drinking what Appellant reported as threw her to the ground. Following the assault, Appellant sat a liter of rum that day. Cantu testified that Appellant would at the bar with another woman as if nothing had happened. be a danger to others in prison if he had access to large After Pagel broke up with Appellant, Appellant made quantities of drugs or alcohol, if he had the opportunity to harassing phone calls in which he threatened to kill Pagel harm weaker people [**20] there, and if he were in an and her new boyfriend. Pagel reported the calls, and she unstructured environment that allowed him to go places obtained a protective order. without direct supervision. Cantu stated, ″ I think if those
On December 20, 2006, Appellant went to the emergency three things . . . were present, that he would be a future danger, yes, sir. ″ Cantu also believed that Appellant did
room at South Austin Medical Center. When [**18] a ″ know what he was doing ″ during the time of the instant
female physician told him that it would not be a good idea
for him to leave the hospital, Appellant spoke offense. [*467]
aggressively and abusively to someone on the phone and A.P. Merillat, a senior criminal investigator for the Texas
then threatened to physically harm the female doctor.
Special Prosecution Unit, testified that inmates in Texas Mary McNellage testified that Appellant lived in her prisons have access to drugs, alcohol, and weapons. He
Spicewood, Texas, home for 89 days. She wanted him to further testified that many violent crimes occur inside Texas
leave due to his lies, drinking, and uncontrolled behavior. prisons.
McNellage did not want to ask Appellant directly to leave
because Appellant had previously physically threatened her. Dr. Richard Coons, a psychiatrist, testified for the State
Consequently, she left him a car and a suitcase along with a without objection. After interviewing Appellant and
note that asked him to leave her things alone and ″ just go. ″ reviewing his records, Coons agreed with Cantu’s assessment
She had also washed and folded his clothes and had packed that Appellant would be a continuing threat to society. In Coons’s opinion, Appellant was ″ drug dependent and . . . I
them and his other belongings in the suitcase and car.
McNellage then stayed at a friend’s house for 13 days think if he were given the opportunity, [Appellant] would certainly try to get them, try to use them ″ in prison. During
because she was afraid of Appellant’s reaction to the note.
Appellant refused to leave, but eventually he was forced to Coons’s interview with him, Appellant described the instant
go. After McNellage finally returned home, Appellant offenses in detail. Appellant told him that he was angry
showed up around 3:00 a.m. saying that he wanted to have when he shot the gun in Wilson’s home, but he said that the shooting of Allred ″ was an accidental shooting. ″ [**21] He
sex with her. When she rebuffed his advances, Appellant
Page 8 of 14 354 S.W.3d 457, *467; 2011 Tex. Crim. App. LEXIS 1669, **21 violence. Appellant called Petrie while he was ″ on the run ″ claimed that he went to Griffith’s home to get money and
that he shot Feltner because Feltner came at him (despite the in the instant offense, and he told her that he had shot people
physical evidence that [*468] Feltner was seated at the and did not know if they were alive or dead. Petrie told
kitchen table). He shot Griffith and the kids because they Appellant to turn himself in and not to hurt anyone else; he responded, ″ I gotta do what I gotta do. ″ Appellant also
were screaming. He also stated that he shot DeHart because
she was screaming. presented evidence that he did not have a record of
disciplinary problems during his many incarcerations.
Coons concluded that Appellant was not operating under On appeal, Appellant’s argument centers on the weight that
any type of psychosis during the instant offense. He found should be given to his ″ pristine ″ behavioral record while that Appellant planned his behavior and was ″ actively incarcerated. However, HN4 while good behavior in prison
responsive to what he [felt] he need[ed] to do. ″ Coons is a factor to consider, it does not preclude a finding of
agreed with Appellant’s previous diagnoses of psychotic future dangerousness. See Emery v. State, 881 S.W.2d 702,
disorder not-otherwise-specified, antisocial behavior, and 707 (Tex. Crim. App. 1994) . We have held that this Court personality problems, and that Appellant is polysubstance can review the objective evidence of future dangerousness, dependent.
but we do not engage in reviewing the jury’s normative In reaching a determination that Appellant would be a future decision on mitigation. Young, 283 S.W.3d at 865 ; Colella v. danger, Coons evaluated the following factors: (1) State, 915 S.W.2d 834, 845 (Tex. Crim. App. 1995) . Appellant’s long history of violence; (2) the awful set of Therefore, we conclude that there was sufficient evidence to
facts related to the instant offense; (3) Appellant’s attitude support the jury’s affirmative finding on the future
toward violence, which is impulsive with a lack of empathy; dangerousness issue, and we defer to the jury’s conclusion
(4) Appellant’s antisocial personality behaviors; (5) that the mitigating evidence [**24] was not sufficient to
Appellant’s lack of any remorse; and (6) the prison society warrant a sentence of life imprisonment. Point of error eight
that Appellant would be in. is overruled.
The defense’s expert, psychologist Dr. Ollie Seay, evaluated In point of error one, Appellant claims that the trial court erred in allowing [*469] him ″ to be tried on copious
[**22] Appellant for mental retardation and concluded that amounts of extraneous offense evidence ″ at guilt in violation
Appellant did not fit the criteria for that diagnosis. Seay did
testify, however, that he believed that Appellant may have of Texas Rule of Evidence 404(b) , thereby denying him a ″ possible mental limitations. ″ Neuropsychologist Dr. Leslie fair trial. Specifically, he complains that the trial court
Rosenstein surmised that Appellant has deficits and improperly permitted the State to present extraneous offense
weaknesses in his neurocognitive functioning, but she evidence pertaining to the theft of Brinlee’s gun, the
agreed that Appellant was not legally mentally retarded. aggravated assault of Wilson in Llano, the killing of Allred
in Marble Falls, and the robbery of DeHart in Pennsylvania.
Appellant’s aunt, Laura Nelson, and sister, Elizabeth Petrie, Appellant concedes that the murders of Griffith and Feltner
testified on his behalf. Nelson stated that she did not think constitute same-transaction contextual evidence.
Appellant was treated well by his step-father and that he HN5 Evidence of extraneous offenses is not admissible at seemed to be punished a lot. Her memories of Appellant are the guilt phase of a trial to prove that a defendant committed
of a caring, loving, and sharing person. However, Nelson the charged offense in conformity with a bad character. Tex.
admitted that she had not seen Appellant in several years. R. Evid. 404(b) ; see Nobles v. State, 843 S.W.2d 503, 514 She knew that he had relationships with numerous women, (Tex. Crim. App. 1992) . However, extraneous offense that he would live off of them, and that the relationships evidence may be admissible when it has relevance apart ended because of fighting. from character conformity. Moses v. State, 105 S.W.3d 622,
Petrie testified that Appellant was a typical brother, but he 626 (Tex. Crim. App. 2003) . [**25] For example, it may be did ″ smack ″ her and physically push her while they were admissible to show proof of motive, opportunity, intent,
growing up. She noted that Appellant did not do well in preparation, plan, knowledge, identity, or absence of mistake
school and that he started drinking when he was fifteen. She or accident. Id . Evidence of another crime, wrong, or act
was aware that her brother could be ″ very violent ″ and that also may be admissible as same-transaction contextual evidence where ″ several crimes are intermixed, or blended
his relationships [**23] with women frequently involved
[2] As noted previously, evidence of DeHart’s murder was not presented during the guilt phase of trial.
Page 9 of 14 354 S.W.3d 457, *469; 2011 Tex. Crim. App. LEXIS 1669, **25 that ″ [t]he evidence is so intermingled between all of the with one another, or connected so that they form an
indivisible criminal transaction, and full proof by testimony, events that occurred it would just -- it would be impossible
. . ., of any one of them cannot be given without showing the to do so without leaving a hole, leaving a gaping hole in the
others. ″ Wyatt v. State, 23 S.W.3d 18, 25 (Tex. Crim. App. State’s case. So the Court does find that this is one continuing course of conduct[.] ″ In a subsequent pre-trial 2000) (quoting Rogers v. State, 853 S.W.2d 29, 33 (Tex. Crim. App. 1993)) . The jury is entitled to know all relevant hearing, the trial court reaffirmed its ruling. surrounding facts and circumstances of the charged offense. We conclude that the trial court did not err. [**28] It was Id . But, under Rule 404(b) , same-transaction contextual within the zone of reasonable disagreement to find the evidence is admissible only when the offense would make various offenses to be contextual evidence. Appellant did little or no sense without also bringing in that evidence, and not rest between incidents, and the charged offense would it is admissible ″ only to the extent that it is necessary to the make little sense without the extraneous offenses. The
jury’s understanding of the offense. ″ Id . (quoting Pondexter extraneous offense evidence presented showed that Appellant
v. State, 942 S.W.2d 577, 584 (Tex. Crim. App. 1996)) . went to homes and establishments where he knew certain
HN6 ″ Whether extraneous offense evidence has relevance women would be found (with the exception of DeHart),
apart from character conformity, as required by Rule 404(b) , specifically women with whom he had a personal is a question [**26] for the trial court. ″ Moses, 105 S.W.3d relationship. Appellant deliberately stole a gun from the at 627 . Thus, a trial court’s ruling on the admissibility of home of his friend Brinlee. After threatening Wilson with extraneous offenses is reviewed under an abuse-of-discretion the gun and shooting it inside her home, Appellant stole
standard. Prible v. State, 175 S.W.3d 724, 731 (Tex. Crim. Wilson’s truck and one of her credit cards. He then drove App. 2005) ; see Santellan v. State, 939 S.W.2d 155, 169 Wilson’s truck to O’Neill’s in Marble Falls. There, all of the (Tex. Crim. App. 1997) . As long as the trial court’s ruling is witnesses saw Appellant with the gun when he used it in an within the ″ zone of reasonable disagreement, ″ there is no attempt to kill Purcell and in the murder of bartender Allred.
abuse of discretion, and the trial court’s ruling will be All witnesses testified that no one else ever fired or
upheld. Prible, 175 S.W.3d at 731 ; Santellan, 939 S.W.2d at possessed the gun. Appellant was seen fleeing Marble Falls 169 . A trial court’s 404(b) ruling admitting evidence is alone in Wilson’s stolen blue truck, and that very truck was generally within this zone if there is evidence supporting present at the Jonestown crime scene. This, along with
that an extraneous transaction is relevant to a material, ballistics evidence and DNA evidence, created more
non-propensity issue. Powell v. State, 63 S.W.3d 435, 438 circumstantial evidence to establish the identity of Appellant (Tex. Crim. App. 2001) ; see Santellan, 939 S.W.2d at 169 . If [**29] as Faulkner’s and Hensley’s killer. The abandonment the trial court’s evidentiary ruling is correct on any theory of of Wilson’s blue truck and the theft of Griffith’s white
law applicable to that ruling, it will not be disturbed, even if Saturn were also part of this continuing episode.
the trial judge gave the wrong reason for his correct ruling. Further, the theft of DeHart’s blue Hyundai occurred during Sewell v. State, 629 S.W.2d 42, 45 (Tex. Crim. App. 1982) . Appellant’s flight from the instant offense as he attempted At a pre-trial hearing, the State presented evidence that the to travel to his mother’s home in Shirley, New York. HN7
charged offense and the extraneous offenses at issue were ″ [F]light is admissible as a circumstance from which an all part of a single ″ crime [**27] spree. ″ The State argued inference of guilt may be drawn. ″ Alba v. State, 905 S.W.2d
that each of the episodes in the [*470] instant case, 581, 586 (Tex. Crim. App. 1995) . And if ″ the extraneous
beginning with the burglary of a habitation and the theft of offense is shown to be a necessarily related circumstance of Brinlee’s gun and ending with the robbery of DeHart, the defendant’s flight, it may be admitted to the jury. ″ Id.;
constituted one continuous episode because these extraneous see also Foster v. State, 779 S.W.2d 845, 859 (Tex. Crim. offenses were necessary to properly explain what happened App. 1989) . Appellant was apprehended in Suffolk County, in Jonestown and to clarify the nature of the crime alleged. New York with DeHart’s vehicle, the gun, Feltner’s cell Although the State argued that it had no direct evidence that phone, and Wilson’s credit card. The trial court did not err Appellant committed the Jonestown murders, they presented in holding that the instant offense was not fully the evidence of each extraneous offense to prove the understandable without the contextual evidence of the charged crime and to illustrate the ″ crime spree ″ extraneous offenses. characterization of Appellant’s acts. Further, omitting the We note that Appellant contends that, because ″ no one was
extraneous offenses would make little or no sense and challenging the State’s version of events, ″ the introduction
would be impractical because they are needed to tie
Appellant to the crime. The trial court agreed, concluding of the extraneous crimes was unnecessary to prove identity
Page 10 of 14 354 S.W.3d 457, *470; 2011 Tex. Crim. App. LEXIS 1669, **29 or any of the other Rule 404(b) exceptions. [**30] This And how many are in the jury box right now? argument is without merit. Appellant did not plead guilty, MR. ERICKSON: About 12. and he argued at closing against a finding of guilt. HN8
When the identity of the perpetrator can be established by MR. WEBER: There’s 12 rounds that actually went
circumstantial [*471] evidence only, identity is a contested into the jury box, live rounds.
issue even if the defense rests with the State, puts on no How many are on the bench in front of them? evidence, and raises no defensive theories. See Jones v. State, 568 S.W.2d 847, 858-60 (Tex. Crim. App. 1978) . We MR. ERICKSON: 15. also note that this argument is without merit because, aside MR. WEBER: There’s 15 on the bench in front of from the identity issue, the State needed all of this evidence them. to give context to Appellant’s ″ crime spree ″ as he stole the
gun to go after women with whom he had had personal He poured live rounds in front of the jury. He then
relationships and to then effectuate his flight to his mother’s walked over and held the gun out to [Appellant] and
home. Point of error one is overruled. offered the gun to [Appellant]. He then brought records that I introduced that were in the record and slammed
In point of error two, Appellant argues that the trial court them down on the table directly in front of me. erred in ″ failing to give an individual limiting instruction as All of these actions violated the specific rules the judge
to each piece of extraneous offense evidence at the time it told us and proper conduct. [The judge] gave us the was admitted, denying him a fair trial. ″ The record shows rules. We all acknowledged we heard it. Absolutely
that the trial court denied Appellant’s numerous requests for improper. Absolutely outrageous conduct. Absolutely individual Rule 404(b) limiting instructions. However, at the uncalled for. end of trial, the trial court agreed to include a limiting
instruction in the court’s charge [**31] regarding the We have no problem with anything that was said extraneous offenses that were admitted. against us, but this conduct was just completely outside the bounds of what is permitted in the law.
This Court has held that HN9 a limiting instruction is not [*472] We ask, one, that Mr. Cobb be held in contempt
required when evidence is admitted as same-transaction of court; and we ask, two, for a mistrial.
contextual evidence. Castaldo v. State, 78 S.W.3d 345, 352 (Tex. Crim. App. 2002) ; Wesbrook v. State, 29 S.W.3d 103, THE COURT: Counsel has requested that that be 114-15 (Tex. Crim. App. 2000) . Because we hold that the placed [**33] on the record. And, State, if you wish to trial court did not err in admitting the extraneous offense reply as well on the record, you may do so. evidence as same-transaction contextual evidence, no
instructions were required. Moreover, even though not MR. COBB: Only to dispute Mr. Weber’s accusation
required, the trial court included in the jury charge a limiting that I offered the gun to [Appellant]. I did not offer the
instruction on extraneous-offense evidence. Appellant’s gun to [Appellant]. I walked toward counsel[’s] table
second point of error is overruled. with the gun. And I don’t believe that I slammed the records down. I did put them on counsel[’s] table.
In his third point of error, Appellant contends that the trial
court ″ erred in failing to grant [him] a new trial, where The trial court declined to hold the prosecutor in contempt
prosecutor Gary Cobb threw one or more boxes of live and denied Appellant’s motion for mistrial.
rounds of ammunition into the jury box prior to the jury
retiring to consider punishment. ″ The record shows that Appellant did not object to the prosecutor’s conduct or
after the jury retired to begin its deliberations, the following request an instruction to disregard when the conduct
occurred: occurred, but instead moved for a mistrial after the jury had
already retired to begin its deliberations. In so doing, MR. WEBER [Defense Counsel]: All right. We’re Appellant failed to object at the earliest opportunity, and
going to object to Mr. Cobb’s conduct during early in thus, he has preserved nothing for our review. Tex. R. App. the presentation -- early in the closing. He picked up 33.1(a) . Point of error three is overruled. live rounds, not shells, [**32] and poured -- from about
a foot high poured -- where is [Mr. Erickson, defense In point of error four, Appellant contends that the trial court
counsel] -- I would say 50 rounds of ammunition on the erred in failing to grant him a new trial where the State
bench directly in front of the jurors. singled out Catholics for exclusion from the jury panel in
Page 11 of 14 354 S.W.3d 457, *472; 2011 Tex. Crim. App. LEXIS 1669, **33 violation of Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. Appellant asserts that the testimony of his [**36]
Page 12 of 14 354 S.W.3d 457, *473; 2011 Tex. Crim. App. LEXIS 1669, **37 vote for a life sentence [**38] no matter how horrible the Frankly, I think the law says that once she answers the
crime, Lambert responded as follows: pretrial publicity question, which I have an obligation,
the Court can on its own motion ask that question once A. Yes, I know. I know because I know -- I know it’s a there are facts that indicate that the juror may have a bias or prejudice, which I think the State was attempting
horrible crime and I know. And I don’t mean to -- I to do. But [**40] if it was not asked in the right form
mean, like the judge said, this is the time that I can for the record, I think the Court has an obligation to do
speak. We didn’t get down to the next section [of the so.
questionnaire], which I think has a lot of bearing on my
case, on my feelings being here also, is that I live out on And I think the law says, since you-all are so familiar
the North Shore. I know what a horrible thing this was with [ article] 35.16 and of the sections [sic], that once because it was in the papers, and I know -- and at the she answers that question in such a way that it indicates
time I read everything. We had just moved there. It was that her verdict would be affected, that we can question
just horrible. her no more.
And when I -- when the judge asked when I was here In response to Appellant’s objection, the State moved before, I thought I could really be objective in this case, Lambert be struck for cause. The trial court granted the but I drove home that day and I went through Jonestown, State’s challenge for cause, noting, ″ I’m doing what [ ar- which I do every [*474] day, in and out, and I thought ticle] 35.16 mandates that has to be done once her answer is I just don’t know that I could be as objective as I clear. ″ thought I could. And I feel really bad about this. Article 35.16(a)(10) states, in pertinent part, that a juror may
So, it’s not just my indecision -- not indecision, but my be struck for cause for the following reason: feeling on the death penalty. My other thing is that I
live in that area where there are a lot of other people HN12 That from hearsay, or otherwise, there is that were impacted by this. established in the mind of the juror such a conclusion as to the guilt or innocence of the defendant as would
Lambert went on to note that at the time of the murders, she influence the juror in finding a verdict. To ascertain
discussed the case with other people in the area and whether this cause of challenge exists, the juror shall
[**39] read extensively about the case. She stated that all of first be asked whether, in the juror’s opinion, the
the information that she had received had caused her to form conclusion so established will influence the juror’s
an opinion regarding Appellant’s guilt and that it would verdict. If the juror answers in the affirmative, the juror
interfere with her ability to sit on the jury.
shall be discharged without further interrogation by After the State passed the prospective juror, the trial court either party or the court .
questioned Lambert:
(Emphasis [**41] added). Following the State’s questioning Q. [THE COURT]: Let me ask the question in the way of Lambert, the trial court had the discretion to clarify
we need to have it asked. Based on the information that Lambert’s position by asking further questions. See Heisel- you have heard in the media or read in the media, have betz v. State, 906 S.W.2d 500, 510 & n.13 (Tex. Crim. App. you formed an opinion as to the guilt or the innocence 1995) . Once clarified, however, any further questioning was of the defendant in this case? proscribed by statute. Id. at n.13 . Accordingly, the trial court did not abuse its discretion in dismissing Lambert. A. Yes.
Q. Would that opinion that you have formed as to his We also note that Appellant’s reliance on Witherspoon and
guilt or innocence affect your verdict? Witt is misplaced. As [*475] summarized by Appellant, Witherspoon and Witt stand for the proposition that a
A. Yes. defendant has the ″ right to an impartial jury drawn from a venire that has not been tilted in favor of capital punishment
The trial court excused the juror. by selective prosecutorial challenges for cause. ″ See With-
Appellant objected to Lambert’s excusal, arguing that the erspoon, 391 U.S. at 521-23 ; Witt, 469 U.S. at 418-21 . Here, State did not properly prove the reason for her excusal under Lambert was not discharged because of her opposition to
Article 35.16 and that the defense had no opportunity to the death penalty, but rather because she clearly indicated rehabilitate her. The trial court explained, that her conclusion as to Appellant’s guilt or innocence
Page 13 of 14 354 S.W.3d 457, *475; 2011 Tex. Crim. App. LEXIS 1669, **41 that ″ Coons is not competent to testify as an expert witness would influence her verdict. The trial court did not err in
excusing Lambert without additional questioning. Point of on future dangerousness, [**44] which his own profession
error seven is overruled. does not recognize, in a capital murder case at punishment because his testimony is unreliable under the Eighth
In point of error nine, Appellant complains that ″ a large Amendment . ″ See Coble, 330 S.W.3d at 270-79 .
portion of the State’s case at punishment [**42] was unfair
because it concerned factors outside of Appellant’s control Citing ″ or unrelated to Appellant’s personality. Lockett v. The record shows that Appellant filed a pre-trial motion for a Daubert However, no hearing was held. [*476] hearing. [4] The motion did not specify any expert to which it was
Ohio, 438 U.S. 586, 604-05, 98 S. Ct. 2954, 57 L. Ed. 2d directed. Appellant also made no objections at trial to 973 (1978) , Appellant complains that testimony concerning the ″ incompetency ″ of TDCJ ( i.e ., TDCJ’s failure to protect Coons’s qualifications or competency as an expert; nor did he make any constitutional challenges regarding the
its inmates from drugs, alcohol, and violence) violated his admission of Coons’s testimony. Appellant does not present
right to individualized sentencing under the Sixth , Eighth , any argument on appeal as to why Coons was not competent and Fourteenth Amendments . to testify in this case. Therefore, Appellant has preserved
Appellant argues, in both his brief and his reply brief, that nothing for this Court to review. Tex. R. App. 33.1(a) . We he was denied individualized sentencing ″ mostly due to the also note that Appellant misquotes our opinion in Coble . We
testimony of A.P. Merillat, which holds [Appellant] did not hold that Coons’s testimony in Coble violated the
responsible for TDCJ’s total incompetence in keeping Eighth Amendent; rather, although Coons’s testimony was anybody who enters its doors safe. ″ Evidence at both the not sufficiently reliable under Texas Rule of Evidence 702 , guilt and punishment phases showed that Appellant used we held that its admission was not harmful as it did not
drugs and alcohol and that he was more violent when he did affect the appellant’s substantial rights to a fair sentencing
so. At punishment, Merillat, a senior criminal investigator trial. Coble, 330 S.W.3d at 287 . We further noted that the for the Texas Special Prosecution Unit, testified that inmates Supreme Court has held that future dangerousness
in Texas prisons have access to drugs, alcohol, and weapons. [**45] expert testimony such as that provided by Coons meets the ″ heightened reliability requirement of the Eighth
He further testified that many violent crimes occur inside Amendment . ″ Id. at 270 (citing Barefoot v. Estelle, 463 U.S. Texas prisons both in the general population and on death row. Merillat noted that he knew nothing about Appellant or 880, 103 S. Ct. 3383, 77 L. Ed. 2d 1090 (1983)) . his case, and that he was [**43] not opining as to whether We further note that, even if the trial court had erred in Appellant would be a future danger. admitting Coons’s testimony, Appellant’s substantial rights to a fair sentencing trial were not violated. Unlike in Coble
Appellant did not object at trial to the admission of the where Coons had lost his notes documenting his interview
complained-of evidence on constitutional or other grounds. with the defendant and had no independent memory of that
Therefore, he presents nothing for our review. Tex. R. App. interview, here Coons interviewed Appellant and based his 33.1(a) . Further, even if Appellant preserved error, we have opinion regarding future dangerousness upon that interview previously rejected similar arguments. See Jenkins v. State , in addition to pertinent records regarding Appellant and this 912 S.W.2d 793, 818 (Tex. Crim. App. 1995) (on motion for reh’g) (determining that ″ evidence about the availability of case. See Coble, 330 S.W.3d at 278-79 . Moreover, Coons’s future dangerousness opinion was similar to the opinion of drugs in prison was relevant to show appellant could be just Appellant’s own expert, psychiatrist Dr. Robert Cantu.
as dangerous in prison society as he is in nonprison society
where drugs are freely available ″ ); see also Coble, 330 Cantu testified that if Appellant (1) had access to large amounts of drugs or alcohol, (2) had the opportunity to harm S.W.3d at 287-89 (rejecting the appellant’s claim that the someone weaker than himself, and (3) was in a relatively trial court erred by admitting Merillat’s testimony about the unstructured environment, then Appellant would be a future
Texas prison-classification system and violence in prison).
danger in prison. Further, both experts agreed with the diagnosis that Appellant [**46] has ″ intermittent explosive Appellant also complains that Dr. Richard Coons testified, disorder. ″ As set forth in point of error eight, above, even
based upon a two-hour interview with Appellant, that
Appellant blamed ″ the gun ″ for the crime, and that there is without Coons’s testimony, there was ample evidence that
a ″ ready availability of weaker victims ″ in the prison there was a probability that Appellant would commit future
system. Citing Coble , he argues that this Court has found acts of violence. Finally, the State mentioned, but did not
[4] Daubert v. Merrell Dow Pharmaceuticals , 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993).
Page 14 of 14 354 S.W.3d 457, *476; 2011 Tex. Crim. App. LEXIS 1669, **46 emphasize, Coons’s complained-of testimony during closing Delivered: December 14, 2011
arguments. Point of error nine is overruled.
We affirm the trial court’s judgment. Publish
Hervey, J. 1712, 90 L. Ed. 2d 69 (1986) .
[3] He avers that this is a case mental-health experts shows that he has borderline of first impression and asks this Court to reverse and intellectual functioning; he also notes that he was held to be remand his case for a new trial. Appellant [**34] is incompetent to stand trial prior to the restoration of his incorrect. competence and subsequent trial. Citing Atkins v. Virginia, 536 U.S. 304, 122 S. Ct. 2242, 153 L. Ed. 2d 335 (2002) We addressed this same issue in Casarez v. State , 913 (banning the execution of mentally-retarded offenders), and S.W.2d 468, 495 (Tex. Crim. App. 1994) (op. on reh’g). Roper v. Simmons, 543 U.S. 551, 125 S. Ct. 1183, 161 L. Ed. HN10 In holding that Batson challenges do not apply to 2d 1 (2005) (banning the execution of juvenile offenders), peremptory strikes based upon religion, we stated that, by he argues that these decisions should be extended to protect definition, a religious belief (unlike race or gender) is a the mentally ill from execution. Appellant concedes that he subscription to a set of beliefs and convictions. Id . Strikes is not mentally retarded or a juvenile. based on personal belief have long been recognized as appropriate and are, in fact, the foundation of the entire voir We recently addressed this issue in Mays v. State, 318 dire process. Id . In discussing the difference between S.W.3d 368, 379-80 (Tex. Crim. App. 2010) . Quoting our previous caselaw, we stated that HN11 ″ there is no authority striking jurors on the basis of race or gender versus religion, we stated, from the Supreme Court or this Court suggesting that mental illness that is a ’contributing factor’ in the defendant’s Attributing to women or African Americans as a group actions or that caused some impairment or some diminished any specific moral, political, or social belief is overly capacity, is enough to render one exempt from execution broad because membership in the group does not under the Eighth Amendment . ″ Id. at 379 . As in Mays , depend upon subscription to the belief. It is invidious Appellant cites no cases from any American jurisdiction that because individual members who do not share the hold that the Atkins rule or rationale applies to the mentally belief are made to suffer the attribution anyway. ill. See id . Nor has he demonstrated that there [**37] is a [**35] But in the case of religion, the attribution is not trend among state legislatures to categorically prohibit the overly broad, and therefore not invidious, when the imposition of capital punishment against mentally ill belief is an article of faith. Because all members of the offenders. See id . Finally, Appellant fails to show that, if he group share the same faith by definition, it is not unjust did suffer from some mental impairment at the time of these to attribute beliefs characteristic of the faith to all of murders, his impairment was so severe that he is necessarily them. and categorically less morally culpable than those who are not mentally ill. See id. at 379-80 . As Appellant has raised Id . at 496. Appellant raises nothing to persuade us to revisit nothing new to persuade us to revisit our previous decision, our holding in Casarez . Point of error four is overruled. we overrule point of error number six. In Appellant’s fifth point of error, he claims that the In point of error seven, Appellant avers that the trial court evidence is insufficient to demonstrate that he would be a erred in not allowing the defense to question venire person future danger in prison and that the testimony concerning Jacqueline Lambert prior to her being struck for cause. the ″ incompetency ″ of TDCJ ( i.e ., TDCJ’s failure to protect Appellant argues that it was unconstitutional under Wither- its inmates from drugs, alcohol, and violence) violated his spoon v. Illinois, 391 U.S. 510, 88 S. Ct. 1770, 20 L. Ed. 2d right to individualized sentencing. Appellant concedes in his 776 (1968) , and Wainwright v. Witt, 469 U.S. 412, 105 S. Ct. reply brief that this fifth point of error is redundant of points 844, 83 L. Ed. 2d 841 (1985) , to prevent him from of error eight and nine. He asks that the argument and attempting to rehabilitate a potential juror who had qualms authority contained in point [*473] five be incorporated against the death penalty. into point of error nine and that point of error five no longer exist as a separate point of error. We will grant Appellant’s During voir dire questioning by the State, Lambert stated request. that she was opposed to the death penalty under any In point of error six, Appellant claims that it is circumstances and that she could not set aside her principles unconstitutional to sentence a mentally ill person to death. and follow the law. When the State asked if she would still
[3] During voir dire, Appellant challenged the prospective jurors’ exclusion under Batson based upon the jurors’ religion. While Appellant notes that each of the five prospective jurors was a minority, he did not assert at trial, or on appeal, that the State excluded these jurors because of race.