Mark Fruge v. State

ACCEPTED 03-14-00724-CR 7572436 THIRD COURT OF APPEALS AUSTIN, TEXAS 10/28/2015 9:58:27 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 FILED IN 3rd COURT OF APPEALS Austin, Texas AUSTIN, TEXAS 10/28/2015 9:58:27 AM Mark Fruge, JEFFREY D. KYLE Clerk 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

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

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: 1

D-1-DC-13-200256

Count 1 Aggravated Assault— Deadly Weapon 2nd degree

D-1-DC-13-200257

Although the indictments in these cases list the counts using Roman 1

numerals, for clarity the State will refer to the counts using Arabic numerals. vi

Count 1 Attempted Capital Murder 1st degree Count 2 Aggravated Assault— Public Servant 1st degree

D-1-DC-13-200259

Count 1 Aggravated Robbery 1st 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

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 *2 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.” *3 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 *4 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. *5 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 *7 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. *8 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 *9 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

4Samaniego-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

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– *14 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 *15 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 Evidence6

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

7Given 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. *18 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 *20 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 *21 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 *22 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. *23 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 *24 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. *25 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. *26 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 *27 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 *28 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 *29 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. *30 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 *31 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 *32 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

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 28th 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

Appendix A Veniremember 12’s Responses

1 kind of tricky where people kind of may feel like -- for 2 me it feels like beyond a reasonable doubt is to be like 3 certain -- to me. And so that kind of thing is okay. 4 I'm just saying that if you were sitting 5 at the end of the day after hearing all the evidence and 6 you said, Well, there's this one little doubt over here 7 and it's not even reasonable, because it would involve 8 martians coming in a spaceship; but it's a doubt so you 9 have to find him not guilty. That's the kind of thing 10 -- that's an extreme example, but that's the sort of 11 thing that we're talking about. You-all feel, like, you 12 could hear all the evidence and if you are convinced 13 beyond a reasonable doubt that you would be able to 14 return a verdict of guilty? 15 MS. CHRISTIANSEN: That, yes. 16 MR. MORRIS: Yeah, I can find a reason. 17 MR. FOYE: What's that? 18 MR. MORRIS: Yeah, I could. 19 MR. FOYE: Good. Excellent. Okay. 20 So based on that kind of clarification, 21 Row 2, anyone who would still want me to prove it beyond 22 all possible doubt? 23 No. 12? 24 MR. SAMANIEGO-KRANT: I believe that 25 we've been talking about incarceration, taking years of

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1 someone's life that I would have to be absolutely 2 certain. The level of false convictions are incorrect, 3 and with convictions these days I would feel horrible 4 about sending someone to prison for something that was 5 doubtful. 6 MR. FOYE: Okay. Thank you. Anyone 7 else? Row 2? 8 VENIRE PANEL: (No response) 9 MR. FOYE: Row 3, anyone? 10 VENIRE PANEL: (No response) 11 MR. FOYE: Okay. Row 4 is Mr. Bidwell. 12 You feel you would want to know all about it? 13 MR. BIDWELL: (Nods head) 14 MR. FOYE: Okay. Thank you. 15 Now, Row 5, anyone? Ms. Janssen? 16 MS. JANSSEN: Same thing. 17 MR. FOYE: Same thing as 12? 18 MS. JANSSEN: Yes. 19 MR. FOYE: Okay. And Row 6, anyone back 20 there? 21 VENIRE PANEL: (No response) 22 MR. FOYE: And Row 7? 23 VENIRE PANEL: (No response) 24 MR. FOYE: Anyone on this side of the 25 room?

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1 officer comes in and says, no, this is what happened. 2 And you just go with the officer because they're on the 3 side of truth and the other person has to be lying, it's 4 just not always like that. It's not black and white 5 like that, but I think that's what we expect things to 6 be. 7 Yes, sir, Mr. -- 27? 8 MR. COLE: 27, Cole. You know, since 9 we're talking about that case right there, I feel like 10 the prosecutor did provide the evidence because of a 11 sworn police officer who is also sworn in court and he 12 had the instrument to speak of. 13 Also, to me, reasonable doubt, nobody is 14 just -- I feel I've had those kind of tickets, too, but 15 it's very easy to accidentally rest your foot on the 16 accelerator and perhaps increase the speed of your car 17 that is under cruise control. So there's reasonable 18 doubt right there that they may have been going 93 and 19 just didn't realize it. 20 MR. HILDRETH: Okay. Well, see, 21 here's -- you're going the opposite way. The Defense 22 doesn't have to establish reasonable doubt about the 23 State's case. We just have to attack it. 24 What the law requires is the State prove 25 their burden beyond a reasonable doubt. And what I mean

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1 is there can be no other reasonable explanation. So now 2 the definition of what is reasonable? I mean -- yes, 3 sir, No. 12? 4 MR. SAMANIEGO-KRANT: It just kind of 5 sounds to me like in talking about reasonable doubt, it 6 almost sounds to me like you're trying to prove 7 innocence instead of proving guilty. It just sounds 8 backwards to me like you're trying to prove innocence 9 -- you're guilty until proven innocent. It just sounds 10 like that to me. 11 MR. HILDRETH: Okay. Let me ask you 12 this. When you all walked in, who looked at the tables 13 and tried to figure out who the defendant was? 14 VENIRE PANEL: (Indicating) 15 MR. HILDRETH: I know that's normal human 16 behavior, sure. 17 Okay, Mr. Custer, did you determine who 18 the defendant was? 19 MR. CUSTER: Yes, sir. 20 MR. HILDRETH: Okay. And did you wonder 21 what he did? 22 MR. CUSTER: Yes, sir. 23 MR. HILDRETH: Who else wondered what he 24 did? Raise your hands high. 25 VENIRE PANEL: (Indicating)

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1 not -- 2 THE COURT: Did he come up here to talk 3 to about something? 4 MR. LEVINGSTON: He was in hospice care 5 for his dog. 6 THE COURT: The first time he said it, I 7 thought it was his -- 8 MS. CHEN-KERCHER: A person. 9 THE COURT: -- 16-year-old, I figured 10 must have been a brother or sister. 11 MR. HILDRETH: Yeah. I think that's what 12 he wanted when he -- 13 MR. FOYE: He did. He said a close 14 family member. A 16-year-old -- 15 THE COURT: It's his dog. 16 MR. FOYE: I mean, it's impressive the 17 dog is 16 years old, but I didn't -- 18 (Discussion off record) 19 THE COURT: Okay. Mr. Samaniego-Krant, 20 can you come up to the bench close enough for us to talk 21 to you? Can you -- can one of you-all illuminate the 22 area you want to talk about? 23 (Venire Member No. 12, Mr. 24 Samaniego-Krant, approached bench) 25 MR. LEVINGSTON: Yeah, Judge, if I may?

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1 Mr. Samaniego, I know when Mr. Foye was 2 questioning you about the burden of proof and reasonable 3 doubt and beyond a reasonable doubt, you had made the 4 comment that you would need to be 100 percent certain. 5 MR. SAMANIEGO-KRANT: Yeah. 6 MR. LEVINGSTON: And you understand that 7 the law is beyond a reasonable doubt. There is actually 8 -- while there is no definition for beyond a reasonable 9 doubt, there is case law that says it's not 100 percent 10 certainty. Would you be able to follow the law and 11 listen to a case and determine guilt or innocence based 12 on beyond a reasonable doubt, or would you need 100 13 percent certainty? 14 MR. SAMANIEGO-KRANT: In my personal 15 beliefs, spirituality and opinion I just feel that I'm 16 taking into consideration someone else's livelihood, I 17 would need to be pretty darn certain. 18 THE COURT: Okay. And when you say that, 19 would you need to be 100 percent certain? 20 MR. SAMANIEGO-KRANT: Yes. 21 MR. LEVINGSTON: Okay. No questions, 22 Judge. 23 THE COURT: Did you have any backup 24 questions? 25 MR. HILDRETH: When you say "100 percent

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1 certain," are you attributing that to beyond a 2 reasonable doubt level or -- I'm not sure what -- 3 because you say you have to be pretty confident. 4 MR. SAMANIEGO-KRANT: If I'm going to 5 commit (sic) somebody to a crime, then I would want to 6 be 100 percent certain that that crime was committed 7 beyond a reasonable doubt. 8 MR. HILDRETH: Okay. And is that what 9 you require -- are you -- there is not percentage to 10 beyond a reasonable doubt. Now, for some people it 11 might be 100 percent. 12 MR. SAMANIEGO-KRANT: Right. 13 MR. HILDRETH: The point is, are you 14 going to hold the State to its burden, or are you going 15 to require the State to a higher burden than what 16 they're required? 17 MR. SAMANIEGO-KRANT: I would hold 18 someone innocent until proven guilty, not the other way 19 around, which to me is how it sounds with our 20 discussion. It sounds like people are trying to prove 21 innocence instead of guilt. 22 MR. HILDRETH: Okay. 23 MR. SAMANIEGO-KRANT: So I'm -- yes. I 24 mean -- 25 MR. HILDRETH: Are you going to require

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1 the State -- to hold the State to a higher burden of 2 proof than beyond a reasonable doubt? 3 MR. SAMANIEGO-KRANT: No. 4 MR. HILDRETH: Okay. I have no further 5 questions. 6 THE COURT: All right. You can step back 7 outside. Thanks. 8 (Venire Member No. 12, Mr. 9 Samaniego-Krant, approached bench) exited courtroom) 10 THE COURT: Okay. Now, what about 11 Custer, No. 13? We're going to get back to him. No 12 motions on Custer? 13 MR. HILDRETH: Nothing on 13. 14 THE COURT: Edwards? 15 MR. HILDRETH: No, sir. 16 THE COURT: Okay. Did you-all want to 17 talk -- does the State still have a motion to strike? 18 MR. LEVINGSTON: I do, Judge. 19 THE COURT: What does was the Defense say 20 on Samaniego? 21 MR. HILDRETH: We're going to object to 22 that. He said he would would hold the State to its 23 burden and not more. 24 THE COURT: Okay. But he said 100 25 percent three times, so I'll grant the State's motion to

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1 strike for cause. I think he won't follow the law that 2 they're entitled to follow. 3 (Venire Member No. 12, Mr. 4 Samaniego-Krant, struck for cause) 5 THE COURT: So 13 and 14 are good. Kelly 6 Hayden, any motions? 7 (No response) 8 THE COURT: Scott Broaddus, any motions? 9 MR. HILDRETH: Yes, Your Honor. He said 10 he would have a bias against the State -- I mean, excuse 11 me against the defendant and has a bias for law 12 enforcement. 13 MR. LEVINGSTON: I agree, Judge. 14 THE COURT: You agree to strike him for 15 cause? 16 MR. LEVINGSTON: I do. 17 THE COURT: Swan, No. 17? 18, Flores? 18 19, Buckner? 20 is excused. JoAnn Parks, 21? Darin 19 Upchurch, 22? Patricia Rowell, 23? Betty Dickson, 24 20 (sic)? 21 MR. FOYE: We had talked to 24. She 22 was excused. I believe Betty Dickson -- 23 THE COURT: Yeah. I meant 25, Betty 24 Dickson. 25 MR. HILDRETH: No, sir. Nothing from the

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Appendix B Opinion: Devoe v. State, 354 S.W.3d 457

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 Notice: PUBLISH the vehicle, and the robbery of yet another victim, because the State needed the evidence to give context to defendant’s Subsequent History: Writ of habeas corpus denied Ex crime spree. Defendant did not rest between incidents and parte Devoe, 2014 Tex. Crim. App. Unpub. LEXIS 38 (Tex. he stole the gun to go after women and to then effectuate his Crim. App., Jan. 15, 2014) flight.

Prior History: [**1] ON DIRECT APPEAL FROM CAUSE Outcome 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, Travis County (Texas), convicting him of capital murder, HN1 In reviewing the sufficiency of the evidence at the specifically the intentional murder of two individuals during punishment phase, an appellate court views the evidence in the same criminal transaction under Tex. Penal Code § the light most favorable to the verdict and determine 19.03(a)(7)(A), and sentencing him to death under Tex. whether any rational trier of fact could make the finding Code Crim. Proc. Ann. art. 37.071, § 2(g). beyond a reasonable doubt.

Overview Criminal Law & Procedure > Sentencing > Capital 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

Criminal Law & Procedure > Sentencing > Capital HN6 Whether extraneous offense evidence has relevance 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 Punishment > Mitigating Circumstances Criminal Law & Procedure > ... > Resisting Arrest > Fleeing & 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 evidence of future dangerousness, but it does not engage in HN7 Flight is admissible as a circumstance from which an reviewing the jury’s normative decision on mitigation. inference of guilt may be drawn. And if the extraneous offense is shown to be a necessarily related circumstance of Evidence > Admissibility > Conduct Evidence > Prior Acts, the defendant’s flight, it may be admitted to the jury. 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 Evidence > Admissibility > Conduct Evidence > Prior Acts, and convictions. Strikes based on personal belief have long Crimes & Wrongs been recognized as appropriate and are, in fact, the

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foundation of the entire voir dire process. In discussing the during the same criminal transaction. See TEX. PENAL CODE § difference between striking jurors on the basis of race or 19.03(a)(7)(A). Based upon the jury’s answers to the special gender versus religion, the court stated that attributing to issues set forth in Texas Code of Criminal Procedure Article women or African Americans as a group any specific moral, 37.071, Sections 2(b) and 2(e), the trial judge sentenced political, or social belief is overly broad because membership Appellant to death. TEX. CODE CRIM. PROC. art. 37.071, § in the group does not depend upon subscription to the belief. 2(g).1 Direct appeal to this Court is automatic. Art. 37.071, 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. Court or the Court of Criminal Appeals of Texas suggesting 37.071, § 2(b)(1). Specifically, he argues that his behavioral that mental illness that is a ″contributing factor″ in the record in prison is ″almost pristine,″ and therefore, the defendant’s actions or that caused some impairment or some State’s evidence of problems within the Texas Department diminished capacity, is enough to render one exempt from of Criminal Justice (TDCJ) should not be weighed against execution under the Eighth Amendment. him.

Criminal Law & Procedure > ... > Challenges for Cause > Bias HN1 In reviewing the sufficiency of the evidence at the & Impartiality > Actual & Implied Bias punishment phase, we view the evidence in the light most 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. AUSTIN. Crim. App. 2009). HN2 Some factors a jury may consider 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, AUSTIN. 1. the circumstances of the capital offense, including the defendant’s state of mind and whether he or she was Judges: HERVEY, J., delivered the opinion of the Court in working alone or with other parties; 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;

Opinion by: HERVEY [*462] 4. the existence of a prior criminal record, and 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.

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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 Keeton v. State, 724 S.W.2d 58, 61 (Tex. Crim. App. 1987); going to his trailer, which was parked nearby, to get more. see also Coble v. State, 330 S.W.3d 253, 287-89 (Tex. Crim. Appellant advised Wilson not to go near her pickup truck, App. 2010). This list is not exclusive. but he told her she could go outside to smoke a cigarette. 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 consider all of the evidence at both the guilt and punishment cactus in the adjoining field. She heard Appellant start stages of trial. Art. 37.071, § 2(d)(1); see also Young, 283 [**6] a truck, and he drove it towards Wilson. He stopped S.W.3d at 863. The circumstances of the offense and the and revved the engine several times before backing up. events surrounding it may be sufficient in some instances to Wilson saw Appellant drive away in her blue Dodge Dakota sustain a ″yes″ answer to the future dangerousness special pickup truck. The license plate number was 21X-ZJ5. issue. Banda, 890 S.W.2d at 51; [**4] see also Hayes v. Wilson [*463] later found that her money and credit cards State, 85 S.W.3d 809, 814 (Tex. Crim. App. 2002). were missing from her purse. Investigators recovered .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 Winchester bullets from his friend, Bill Brinlee. Brinlee Later that evening, Glenda Purcell was at her usual hangout, considered Appellant to be ″family,″ as Appellant had O’Neill’s Sports Tavern in Marble Falls. Purcell had recently previously lived with the Brinlees. Appellant had access to broken up with Appellant after a tumultuous six-month the house, knew that the Brinlees would be out of town for romantic relationship that ended when she asked him to a wedding during the weekend of August 24, and was aware move out of her home. Following the break-up, Purcell that the gun was kept in the master bedroom. obtained a protective order against Appellant, of which 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 to do around her home. At about 3:00 p.m., Wilson came At approximately 8:30 p.m., Appellant entered O’Neill’s home to find Appellant outside with the gun. Wilson had Sports Tavern. He was dressed in what Purcell described as previously informed Appellant that she did not allow his ″motorcycle attire″: a black leather vest, chaps, a cap, firearms in her home, and she asked that he not bring it in and a jacket. Purcell immediately called out for someone to the house. She assumed that Appellant complied with her call the police because she had a protective order against request. Appellant. [**7] Appellant then walked over to Purcell, put 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 then went to take a nap. At this point, Wilson decided that repairing something. She yelled, ″Mike, Mike, [Appellant’s] it was time to ask Appellant to vacate her home. [**5] She here, he’s got a gun.″ Allred stepped between Purcell and 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

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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 return to her family’s home in Leander on Sunday. Meanwhile, beginning Friday night, August 24, Appellant began calling his friend, Brinlee. During his first phone call, On that Friday evening, August 24, Hensley’s mother and Appellant told Brinlee that he had ″shot at″ six people and step-father began to worry when they did not receive a ″maybe killed two″ people. He stated that he ″was on the phone call from her because Hensley normally called to say run.″ During the second call, Brinlee noticed that Appellant 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 any auto accidents or other events that might explain During his second or third phone call to Brinlee, Appellant Hensley’s failure to make contact, Hensley’s step-father said that ″he was going after [Purcell] and her father and learned about the murder in Marble Falls and that the police mother.″ He told Brinlee that he had gone to [**11] the bar were looking for a blue Dodge Dakota pickup truck with the to kill Purcell, but the bartender got in the way. Appellant license plate number 21X-ZJ5. said that he took a couple of shots at Purcell, but the gun jammed and that was why Purcell was not dead. On Sunday morning, August 26, Hensley’s parents drove to Griffith’s home in Jonestown. [**9] As they approached the Records for Wilson’s credit card showed that someone driveway, Hensley’s step-father saw a blue Dodge Dakota attempted to use it at a Round Rock gas station on August pickup truck parked near the house. He recognized the 24. Call records for Feltner’s phone showed points along the license plate number from his internet search the day before, route that Appellant took as he fled Texas. In addition to the and he knew that something was [*464] wrong. He parked call from the Belton area, Appellant used the phone while he a block away and called the police. was near the following locations: Mount Sylvan, Texas (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. Hensley, who was lying on the living room couch, had four On Sunday, August 26, while Appellant was driving through gunshot wounds including a fatal wound to the head. The Pennsylvania, Griffith’s Saturn station wagon began stalling group had apparently been preparing dinner as raw meat sat and ″riding rough.″ Appellant decided that he needed a out on the counter and the barbecue grill outside was open. different car, so he left Interstate 81 in the town of 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

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map. Appellant then continued driving to New York. An After his return to Texas, Appellant told a cellmate in the expended .380-caliber bullet and shell casing were recovered Travis County Jail, ″I’ll be here for a long time . . . I killed from DeHart’s home. In Griffith’s Saturn station wagon, six people.″ Also while in jail, during a recorded conversation investigators found an identification badge for Griffith, a with an acquaintance, Tiffany Waldrop, Appellant told certificate of Faulkner’s participation in a beauty pageant, a Waldrop that he thought that he would be in jail for ″[l]ife. paper towel holder, a peanut can, and Powerade, Dr. Pepper, I’m getting the death penalty.″ When Waldrop asked 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 was found parked at Baldoni’s home; the keys were found into her home and that he shot her because ″she wouldn’t in the house. Inside the Hyundai, they recovered Feltner’s stop screaming.″ cell phone and the Walmart bag, which contained a box of 100 Winchester .380-caliber bullets, an open carton of Appellant possessed a lengthy criminal history. He was Skydancer cigarettes, a pair of sunglasses, a road atlas with incarcerated in Burnet County, Texas, for various the area around DeHart’s home circled in ink. misdemeanors. Before that, he was jailed in Suffolk County, 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. with a detective of the Suffolk County Police Department. Appellant told a former neighbor that he ″liked to slap the He described many of the events surrounding the instant girls around.″ Purcell, the woman Appellant attempted to 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

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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 Purcell persuaded him not to do so. Later that same night, Appellant’s family confirmed that, when Appellant was in Purcell complained that Appellant had been living in her his twenties, he once attempted to strangle his mother with home for four months without paying any bills or helping a telephone cord. Following that incident, Appellant’s out. Appellant [**17] became angry, and he cut Purcell’s mother obtained a protective order against him. clothes off with a knife, punched her several times, and held a knife to her throat. He also hit Purcell with the finial from The jury also received ample evidence from numerous a bed post, breaking two of her ribs, and he threatened to witnesses that Appellant abused alcohol and drugs and that shoot her. Purcell subsequently kicked Appellant out of her he tended to become more violent when he did so. home and obtained a protective order. Appellant’s mother testified, via deposition, that Appellant became ″very violent″ when he was drinking—he ″would Jody Pagel, a woman whom Appellant had dated in the early take things apart, tear up the house, and break down doors. 1980s while living in New York, testified regarding three He would act like that no matter whose house he was at.″ incidents involving Appellant. During the first incident, Appellant drank too much and attempted to choke her to Appellant’s substance abuse was also the subject of expert death. Pagel testified that the second incident occurred in testimony. Defense psychiatrist Dr. Robert Cantu interviewed the house, but she could not recall the facts clearly. During Appellant. His understanding from Appellant was that the third incident, they were at a bar when Appellant choked Appellant had smoked a half to one ounce of Pagel so hard that he lifted her up off the floor; he then methamphetamine in the 12 hours preceding the instant threw her to the ground. Following the assault, Appellant sat offense, in addition to drinking what Appellant reported as at the bar with another woman as if nothing had happened. a liter of rum that day. Cantu testified that Appellant would After Pagel broke up with Appellant, Appellant made be a danger to others in prison if he had access to large harassing phone calls in which he threatened to kill Pagel quantities of drugs or alcohol, if he had the opportunity to and her new boyfriend. Pagel reported the calls, and she harm weaker people [**20] there, and if he were in an obtained a protective order. unstructured environment that allowed him to go places 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 room at South Austin Medical Center. When [**18] a danger, yes, sir.″ Cantu also believed that Appellant did female physician told him that it would not be a good idea ″know what he was doing″ during the time of the instant for him to leave the hospital, Appellant [*467] spoke offense. aggressively and abusively to someone on the phone and then threatened to physically harm the female doctor. A.P. Merillat, a senior criminal investigator for the Texas 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 them and his other belongings in the suitcase and car. Coons’s opinion, Appellant was ″drug dependent and . . . I McNellage then stayed at a friend’s house for 13 days think if he were given the opportunity, [Appellant] would because she was afraid of Appellant’s reaction to the note. certainly try to get them, try to use them″ in prison. During 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 sex with her. When she rebuffed his advances, Appellant shooting of Allred ″was an accidental shooting.″ [**21] He

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claimed that he went to Griffith’s home to get money and violence. Appellant called Petrie while he was ″on the run″ 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 were screaming. He also stated that he shot DeHart because responded, ″I gotta do what I gotta do.″ Appellant also 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 any type of psychosis during the instant offense. He found On appeal, Appellant’s argument centers on the weight that that Appellant planned his behavior and was ″actively should be given to his ″pristine″ behavioral record while responsive to what he [felt] he need[ed] to do.″ Coons incarcerated. However,HN4 while good behavior in prison agreed with Appellant’s previous diagnoses of psychotic is a factor to consider, it does not preclude a finding of disorder not-otherwise-specified, antisocial behavior, and future dangerousness. See Emery v. State, 881 S.W.2d 702, personality problems, and that Appellant is polysubstance 707 (Tex. Crim. App. 1994). We have held that this Court dependent. can review the objective evidence of future dangerousness, 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 [**22] Appellant for mental retardation and concluded that erred in allowing [*469] him ″to be tried on copious Appellant did not fit the criteria for that diagnosis. Seay did amounts of extraneous offense evidence″ at guilt in violation 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.2 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 seemed to be punished a lot. Her memories of Appellant are HN5 Evidence of extraneous offenses is not admissible at of a caring, loving, and sharing person. However, Nelson the guilt phase of a trial to prove that a defendant committed admitted that she had not seen Appellant in several years. the charged offense in conformity with a bad character. Tex. She knew that he had relationships with numerous women, R. Evid. 404(b); see Nobles v. State, 843 S.W.2d 503, 514 that he would live off of them, and that the relationships (Tex. Crim. App. 1992). However, extraneous offense ended because of fighting. evidence may be admissible when it has relevance apart 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 his relationships [**23] with women frequently involved evidence where ″several crimes are intermixed, or blended

2 As noted previously, evidence of DeHart’s murder was not presented during the guilt phase of trial.

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with one another, or connected so that they form an that ″[t]he evidence is so intermingled between all of the 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 2000) (quoting Rogers v. State, 853 S.W.2d 29, 33 (Tex. continuing course of conduct[.]″ In a subsequent pre-trial 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. Id. But, under Rule 404(b), same-transaction contextual We conclude that the trial court did not err. [**28] It was evidence is admissible only when the offense would make within the zone of reasonable disagreement to find the little or no sense without also bringing in that evidence, and various offenses to be contextual evidence. Appellant did it is admissible ″only to the extent that it is necessary to the not rest between incidents, and the charged offense would jury’s understanding of the offense.″ Id. (quoting Pondexter make little sense without the extraneous offenses. The v. State, 942 S.W.2d 577, 584 (Tex. Crim. App. 1996)). extraneous offense evidence presented showed that Appellant 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. Sewell v. State, 629 S.W.2d 42, 45 (Tex. Crim. App. 1982). Further, the theft of DeHart’s blue Hyundai occurred during 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 extraneous offenses would make little or no sense and We note that Appellant contends that, because ″no one was would be impractical because they are needed to tie challenging the State’s version of events,″ the introduction Appellant to the crime. The trial court agreed, concluding of the extraneous crimes was unnecessary to prove identity

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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 to each piece of extraneous offense evidence at the time it All of these actions violated the specific rules the judge was admitted, denying him a fair trial.″ The record shows told us and proper conduct. [The judge] gave us the that the trial court denied Appellant’s numerous requests for rules. We all acknowledged we heard it. Absolutely individual Rule 404(b) limiting instructions. However, at the improper. Absolutely outrageous conduct. Absolutely end of trial, the trial court agreed to include a limiting uncalled for. 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 required when evidence is admitted as same-transaction [*472] We ask, one, that Mr. Cobb be held in contempt contextual evidence. Castaldo v. State, 78 S.W.3d 345, 352 of court; and we ask, two, for a mistrial. (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

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violation of Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. Appellant asserts that [**36] the testimony of his 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 striking jurors on the basis of race or gender versus religion, previous caselaw, we stated that HN11 ″there is no authority 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 evidence is insufficient to demonstrate that he would be a In point of error seven, Appellant avers that the trial court future danger in prison and that the testimony concerning erred in not allowing the defense to question venire person the ″incompetency″ of TDCJ (i.e., TDCJ’s failure to protect Jacqueline Lambert prior to her being struck for cause. its inmates from drugs, alcohol, and violence) violated his Appellant argues that it was unconstitutional under Wither- right to individualized sentencing. Appellant concedes in his spoon v. Illinois, 391 U.S. 510, 88 S. Ct. 1770, 20 L. Ed. 2d reply brief that this fifth point of error is redundant of points 776 (1968), and Wainwright v. Witt, 469 U.S. 412, 105 S. Ct. of error eight and nine. He asks that the argument and 844, 83 L. Ed. 2d 841 (1985), to prevent him from authority contained in point [*473] five be incorporated attempting to rehabilitate a potential juror who had qualms into point of error nine and that point of error five no longer against the death penalty. 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.

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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 horrible crime and I know. And I don’t mean to -- I bias or prejudice, which I think the State was attempting mean, like the judge said, this is the time that I can to do. But [**40] if it was not asked in the right form speak. We didn’t get down to the next section [of the for the record, I think the Court has an obligation to do questionnaire], which I think has a lot of bearing on my so. 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. So, it’s not just my indecision -- not indecision, but my Article 35.16(a)(10) states, in pertinent part, that a juror may feeling on the death penalty. My other thing is that I be struck for cause for the following reason: live in that area where there are a lot of other people that were impacted by this. HN12 That from hearsay, or otherwise, there is established in the mind of the juror such a conclusion as Lambert went on to note that at the time of the murders, she to the guilt or innocence of the defendant as would discussed the case with other people in the area and influence the juror in finding a verdict. To ascertain [**39] read extensively about the case. She stated that all of whether this cause of challenge exists, the juror shall the information that she had received had caused her to form first be asked whether, in the juror’s opinion, the an opinion regarding Appellant’s guilt and that it would conclusion so established will influence the juror’s interfere with her ability to sit on the jury. verdict. If the juror answers in the affirmative, the juror 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 A. Yes. did not abuse its discretion in dismissing Lambert.

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 The trial court excused the juror. venire that has not been tilted in favor of capital punishment 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

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would influence her verdict. The trial court did not err in that ″Coons is not competent to testify as an expert witness 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 The record shows that Appellant filed a pre-trial motion for or unrelated to Appellant’s personality.″ Citing Lockett v. a Daubert4 hearing. [*476] However, no hearing was held. Ohio, 438 U.S. 586, 604-05, 98 S. Ct. 2954, 57 L. Ed. 2d The motion did not specify any expert to which it was 973 (1978), Appellant complains that testimony concerning directed. Appellant also made no objections at trial to the ″incompetency″ of TDCJ (i.e., TDCJ’s failure to protect Coons’s qualifications or competency as an expert; nor did its inmates from drugs, alcohol, and violence) violated his he make any constitutional challenges regarding the right to individualized sentencing under the Sixth, Eighth, admission of Coons’s testimony. Appellant does not present and Fourteenth Amendments. any argument on appeal as to why Coons was not competent 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 He further testified that many violent crimes occur inside meets the ″heightened reliability requirement of the Eighth Texas prisons both in the general population and on death Amendment.″ Id. at 270 (citing Barefoot v. Estelle, 463 U.S. 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 Appellant would be a future danger. We further note that, even if the trial court had erred in admitting Coons’s testimony, Appellant’s substantial rights Appellant did not object at trial to the admission of the to a fair sentencing trial were not violated. Unlike in Coble complained-of evidence on constitutional or other grounds. where Coons had lost his notes documenting his interview Therefore, he presents nothing for our review. Tex. R. App. with the defendant and had no independent memory of that 33.1(a). Further, even if Appellant preserved error, we have interview, here Coons interviewed Appellant and based his previously rejected similar arguments. See Jenkins v. State, opinion regarding future dangerousness upon that interview 912 S.W.2d 793, 818 (Tex. Crim. App. 1995) (on motion for in addition to pertinent records regarding Appellant and this reh’g) (determining that ″evidence about the availability of case. See Coble, 330 S.W.3d at 278-79. Moreover, Coons’s drugs in prison was relevant to show appellant could be just future dangerousness opinion was similar to the opinion of as dangerous in prison society as he is in nonprison society Appellant’s own expert, psychiatrist Dr. Robert Cantu. where drugs are freely available″); see also Coble, 330 Cantu testified that if Appellant (1) had access to large S.W.3d at 287-89 (rejecting the appellant’s claim that the amounts of drugs or alcohol, (2) had the opportunity to harm trial court erred by admitting Merillat’s testimony about the someone weaker than himself, and (3) was in a relatively Texas prison-classification system and violence in prison). unstructured environment, then Appellant would be a future danger in prison. Further, both experts agreed with the Appellant also complains that Dr. Richard Coons testified, diagnosis that Appellant [**46] has ″intermittent explosive based upon a two-hour interview with Appellant, that disorder.″ As set forth in point of error eight, above, even 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).

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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.

Footnotes

[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.

[5] Discussed in detail in the Statement of Facts on page 5.

[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.

[13] Discussed on page 24-25.