# IN THE COURT O F CRIMINA L A PPEA LS OF TEXA S
N O . A P - 7 6 , 7 3 7

K W A M E A . R O C K W E L L , A p p e l l a n t

v . T H E S T A T E O F T E X A S , A p p e l l e e
O N D I R E C T A P P E A L F R O M T H E C R I M I N A L D I S T R I C T C O U R T N U M B E R F O U R ,

T A R R A N T C O U N T Y

W O M A C K 

## , J., delivere d the opinion of the unanimous Court

. I n J anuar y 2012, a jury

convicted the appellant of the murder

of Da niel Rojas in the
course of committing robbe ry , a ca pital offense
. Pursuant to the jury ’s answe rs to the spec ial

1 

## issues, the trial cour

t sentence d the appe llant to death. Direc t appea l to this Court is automatic. 2 3 

## The a ppellant ra ises twenty -one points of e rror . Finding no reve rsible er ror, we aff

irm.

T E X . P E N A L C O D E § 1 9
. 0 3 ( a ) ( 2 )
. 1 T E X . C O D E C R IM . P R O C . a r t
. 3 7
. 0 7 1 , § 2 ( g )
. 2 I d

. , § 2 ( h )
. 3

## --2 I. Su ff iciency of the Evid ence I n his first point of error , the appe llant arg ues that the e vidence was insuffic ient to support his conviction at the g uilt phase of the tria l. Specifica lly , the appe llant arg ues that the State failed to prove that he, as oppose d to a co- conspirator , was the pe rson who shot and killed Rojas, or that he wa s g uilty as a pa rty . There was suff

icient evidenc e to support a r ational juror’ s finding that the appe llant was at lea st a party to the offe nse, if not the princ ipal actor
. A. Standard of

Review When assessing whether

evidenc e is leg ally

sufficie nt to support a conviction, “the rele vant question is whether , afte r viewing the evidenc e in the lig ht most favorable to the prosec ution, any rational trier of fa ct could have found the e ssential elements of the crime be y ond
a re asonable doubt.” This standard a ccounts for the fa ctfinder ’s duty

“to re solve conflicts in the 4 

## testimony , to weig h the evidenc e, and to dr aw r easona ble infer ence s from basic f acts to ultimate fac ts.” There fore , in analy zing leg al suffic iency , we “ deter mine whether

the nec essar

y infere nces 5


## are rea sonable ba sed upon the c ombined and cumulative f orce of all the e vidence when view ed in the light most favor able to the ve rdict.” 6 

## Our re view of “ all of the e vidence ” includes e vidence that was prope rly and improper ly admitted. When the rec ord supports conf licting infe renc es, we presume tha t the fac tfinder 7

J a c k s o n v . V i r g i n i a , 4 4 3 U
. S
. 3 0 7 , 3 1 9 , 9 9 S
. C t
. 2 7 8 1 , 6 1 L
. E d
. 2 d 5 6 0 ( 1 9 7 9 ) ( e m p h a s i s i n o r i g i n a l )
. 4 I b i d
. 5 H o o p e r v . S t a t e , 2 1 4 S
. W
. 3 d 9 , 1 6

- 1 7 ( T e x . C r . A p p . 2 0 0 7 )
. 6 C o n n e r v . S t a t e , 6 7 S
. W
. 3 d 1 9 2 , 1 9 7 ( T e x . C r . A p p . 2 0 0 1 )
. 7

## --3

resolved the conflicts in fa vor of the pr osecution and de fer to that determination. Direc t and 8 

## circ umstantial evidence are trea ted equa lly : “Circumstantial evidenc e is as proba tive as direc t evidenc e in establishing the g uilt of an ac tor, and c ircumstantial evidenc e alone can be sufficie nt to establish guilt.” 9 

## When the trial court’ s char g e author izes the jury to convict on more tha

n one theor

y , we shall uphold the verdict of g uilty if the evide nce is suff

icient on any

one of those the ories. 1 0 

## B. App licable Law A per son commits murder if he intentionally or knowing ly

cause s the dea th of an individual. A per son commits capital murder if he intentionally

commits murder in the cour se 1 1 

## of committing or a

ttempting to commit any

of seve ral off

enses, including robber

y . 1 2 

## A per son is criminally

responsible a s a par

ty to an offe nse if the of

fense is committ ed by his own conduct, by

the conduc t of another

for whic h he is criminally responsible, or by

both. A

1 3 

## person is cr iminally

responsible for

an off ense c ommitt ed by

the conduc t of another

if ac ting with intent to promote or assist the commission of the offense , he solicits, encour ag es, direc ts, aids, or attempts to aid the other person to commit the offe nse. I f, in the attempt to ca rry out a 1 4 

## conspirac y

to commit one felony , another felony is committ ed by

one of the conspirator s, all

J a c k s o n , 4 4 3 U
. S
. , a t 3 2 6
. 8 H o o p e r , 2 1 4 S
. W
. 3 d , a t 1 3
. 9 G u e v a r a v . S t a t e , 1 5 2 S
. W
. 3 d 4 5 , 4 9 ( T e x . C r . A p p . 2 0 0 4 )
. 10 T E X . P E N A L C O D E § 1 9
. 0 2 ( b ) ( 1 )
. 11 I d

. , § 1 9
. 0 3 ( a ) ( 2 )
. 12 I d

. , § 7
. 0 1 ( a )
. 13 I d

. , § 7
. 0 2 ( a ) ( 2 )
. 14

## --4

conspirator s are g uilty

of the fe lony

actua lly committed, though having no intent to commit it, if the offe nse wa s committed in furthera nce of the unlawf

ul purpose and w as one tha t should have been a nticipated as a

result of the c arr

y ing out of

the conspira cy . 1 5 

## A re viewing court may

look to “events be fore , during , and af ter the c ommissi on of the offe nse” to de termine whe ther a n individual is a party

to an offe nse, and it may rely on circ umstantial evidence to prove pa rty status. Although e ach f act “ need not point direc tly and 1 6 

## independe ntly

to the g uilt of the appellant,” the cumulative e ffe ct of the inc riminating f acts must be suff icient to support the conviction. 1 7 

## C. Rele vant F acts and Analysi s The a ppellant was the co-ow ner of a used c ar business located next to a Valero g as station and conve nience store in For t Worth. The car

business was strug g ling a nd in dang er of

losing the lease on the prope rty , but the appellant a nd sever al other e mploy ees notice d the Vale ro next door
was a lway s busy

and did a big chec k-ca shing business. The men dec ided to commit robbery at the conve nience store bec ause the y thought a larg e amount of c ash wa s stored there
. Appellant’s c o-conspira tor, Chance Smit h, testified that the appe llant set up a mee ting with Smi th and told him to bring anothe r man be cause the appe llant wanted them to help him commit the robbery . The a ppellant told the participa nts who would be involved and w hat their roles would be. H e broug ht walkie-ta lkies to the car lot before the offe nse and sa id they wer e to be used dur ing the robber y . The a ppellant and his co- conspirator s eng ag ed in seve ral botche d

T E X . P E N A L C O D E § 7
. 0 2 ( b )
. 15 G r o s s v . S t a t e , 3 8 0 S
. W
. 3 d 1 8 1 , 1 8 6 ( T e x . C r . A p p . 2 0 1 2 ) ( c i t i n g W y g a l v . S t a t e , 5 5 5 S
. W
. 2 d 4 6 5 , 4 6 8

- 6 9 16 ( T e x . C r . A p p . 1 9 7 7 ) )
.

G u e v a r a , 1 5 2 S
. W
. 3 d , a t 4 9
. 17

## --5

attempts at the robbe ry

in the day s leading up to the offe nse. The a ppellant told Smi th that he (the appellant) would car

ry a g un so he could shoot any one who r ecog nized them, and another man would car ry a g as ca n to burn the store, e liminating any evidenc e. The re w as testimony that the appellant wa s known to car ry a g un fre quently
. On Marc h 23, 2010, Valer o employ ee D aniel Rojas ar rived a t the convenie nce store ear ly in the morning to open for the day and let a Mr s. Ba ird’s deliver y driver, Jerry

Bur nett, into the store to re stock the shelves. Surve illance video show ed that ar ound 6:20 a.m., three men wea ring dark c lothing and bla ck ski masks enter ed the store . The fir st man car ried a g un, the sec ond man
car ried a bag , and the third man c arr ied a r ed g as ca n and stay ed nea

r the fr ont door. The fir st man shot Burne tt in the head whe re he stood in an aisle of the store , and then the first and sec ond men forc ed Rojas to open the c ash re g ister and g ive them a lar g e bundle of cash that was in a f

ree zer in the store’s of

fice are a. The first man then shot and killed Rojas in the office are a. A c ustomer pulled up outside, and the thre e maske d men quickly left. As they

ran out, the first man pointed his g un at the customer outside but did not shoot
. The man w ith the gun a

nd the man with the bag wer e about the sa me heig ht, but the man with the g un had dar

k skin and the sec ond man had lig ht skin. The shooter used his lef t hand to shoot both Burne tt and Rojas. The appe llant was a le ft-hande d, dark- skinned Afr ican Ame rica n; Randy Seibel was a

rig ht-hande d, light-skinned Ca ucasia n; and Ty rone Thoma s was a r ighthanded A frica

n Americ an who wa s noticeably shorter tha

n the other two me n. When police ar

rived, B urnett wa s still alive. He was take n to the hospital, where he died ten day s later. Three car s belong ing to the a ppellant, Smith, and Tim Thomas (another a ccomplice ) we re

## --6

seen on sur

veillance video ar

riving at Smith’s apartment betwe en 7:05 a.m. and 7:50 a .m. on the morning of the off

ense. The appellant did not re turn to work at the c ar lot af ter the of fense
. Four day s later, the a

ppellant was a

pproac hed by

uniformed of

fice rs in San Antonio while he wa s sitti ng in his truck. He jumped out of the vehicle a nd ran a way . He ba

rrica ded himself in a convenie nce store restroom, y elling tha t he would kill hims elf. When police br oke the door open, the appe llant was holding a piec e of br oken g lass to his throat. As they handcuf fed him, the appellant told police, “ J ust f---

--- kill me, man. I ’m g oing to die in ther e any way .” The e vidence at trial showed tha t the day befor e the of

fense , the appe llant, who owed his ex-wife a la

rg e amount of mone y , told her that he w ould pay her some of

it the next day
. Someone from the c ar lot also ar rang ed to have the ca

r Smith said was used in the offe nse towed from whe re it wa s parke d at the appe llant’s cousin’s vac ant house late r on the da y of the off ense. Smit h testified that the appe llant met him after the of fense and g ave him money to paythe towtruck drive r. I n the river

behind the appe llant’s apar tment complex was found a blac k, hooded
swea tshirt, sim ilar to those see n on the surveillanc e video f rom the conve nience store. On it was a par tial DNA prof

ile from which the appellant c ould not be excluded. The a ppellant admits that “the juror s could rea sonably conclude [t he appe llant] was prese nt at the sce ne of the offe nse,” but he ar g ues that, other tha n the ac complice testimony , 1 8 

## there was no “ direc t evidence ” that he br andished the w eapon use d to kill R ojas. Howeve r, the 1 9 

## jury char g e provide d three theories that a llowed for c onviction, only one of w hich re quired the

A p p e l l a n t ’ s B r i e f a t 1 1
. 18 I b i d

. 19

## --7

appellant to be the actua l shooter. The State wa s not require d to prove the a ppellant was the 2 0 

## shooter, bec ause he could be f ound g uilty

as a pa rty to the offe nse. There was e vidence that the appe llant solicited, directed, a nd aided in the c ommissi on of this offense by

holding planning meeting s, assig ning r oles, providing materia ls used in the offe nse, and by

being prese nt at the sce ne of the offe nse (whic h the appe llant admits was a
rea sonable c onclusion). I n acc ordanc e with Guev ara , we will uphold a ver dict of g uilty if the evide nce is sufficie nt for any

one of the theories on whic h the jury was a uthorized to convict. A rational trie r of fa ct could have found the e ssential elements of the crime be y ond a re asonable doubt. We
overr ule the appe llant’s first point of err or.

II. Su ff iciency of the Evid ence - F uture Danger ousn ess The a ppellant’s ninetee nth point of error is that the evidenc e wa s leg ally insufficient to support the jury ’s finding of a pr obability that he would commit future c riminal acts of violenc e that would constitute a continuing threa t to society
. Finding ample evide nce to support the 2 1 

## jury ’s ver dict, we ove rrule this point of er ror.

T h e j u r y c h a r g e i n c l u d e d t h e i n s t r u c t i o n t h a t t h e j u r y s h o u l d f i n d t h e a p p e l l a n t g u i l t y i f i t f o u n d b e y o n d a 20 r e a s o n a b l e d o u b t t h a t :

( 1 ) t h e a p p e l l a n t , e i t h e r a c t i n g a l o n e o r a s a p a r t y , i n t e n t i o n a l l y c a u s e d t h e d e a t h o f D a n i e l R o j a s b y s h o o t i n g h i m w i t h a d e a d l y w e a p o n i n t h e c o u r s e o f c o m m i t t i n g o r a t t e m p t i n g t o c o m m i t r o b b e r y o f D a n i e l R o j a s ;

( 2 ) t h e a p p e l l a n t , a c t i n g w i t h i n t e n t t o p r o m o t e o r a s s i s t t h e c o m m i s s i o n o f t h e o f f e n s e , s o l i c i t e d , e n c o u r a g e d , d i r e c t e d , a i d e d , o r a t t e m p t e d t o a i d R a n d y S e i b e l o r C h a n c e S m i t h o r T i m T h o m a s o r T y r o n e T h o m a s t o i n t e n t i o n a l l y c a u s e t h e d e a t h o f D a n i e l R o j a s b y s h o o t i n g h i m w i t h a d e a d l y w e a p o n a n d t h e s a i d R a n d y S e i b e l o r C h a n c e S m i t h o r T i m T h o m a s o r T y r o n e T h o m a s w a s i n t h e c o u r s e o f c o m m i t t i n g o r a t t e m p t i n g t o c o m m i t r o b b e r y o f D a n i e l R o j a s ; o r ( 3 ) t h e a p p e l l a n t e n t e r e d i n t o a c o n s p i r a c y w i t h R a n d y S e i b e l o r C h a n c e S m i t h o r T i m T h o m a s o r T y r o n e T h o m a s t o c o m m i t t h e o f f e n s e o f r o b b e r y a n d t h a t i n t h e a t t e m p t t o c a r r y o u t t h i s a g r e e m e n t , o n e o f t h e c o - c o n s p i r a t o r s d i d t h e n a n d t h e r e i n t e n t i o n a l l y c a u s e t h e d e a t h o f D a n i e l R o j a s b y s h o o t i n g h i m w i t h a d e a d l y w e a p o n , a n d s u c h o f f e n s e w a s c o m m i t t e d i n f

u r t h e r a n c e o f t h e r o b b e r y , a n d w a s a n o f f e n s e t h e a p p e l l a n t s h o u l d h a v e a n t i c i p a t e d a s t h e r e s u l t o f c a r r y i n g o u t t h e a g r e e m e n t
.

S e e T E X . C O D E C R IM . P R O C . a r t
. 3 7
. 0 7 1 , § 2 ( b ) ( 1 )
. 21

## --8

We assess the suff

iciency of future -dang erousne ss evidence in the light most favor able to the jury ’s finding s. We must determine whethe r any rational trier

of fa ct could have found a 2 2 

## probability

that the def

endant would c ommit future criminal ac ts of violence tha t would constitute a continuing threa t to society , and we shall reve rse only if a ra tional jury

would
nece ssarily

have ha d a re asonable doubt about this probability
. 2 3 

## The spec ial issue asks if a de fenda nt would constitute a continuing threa t whether in or out of prison without reg ard to how long the def endant would a ctually

spend in prison if sentenc ed to life. I n other wor ds, the issue conc entra tes on “the c hara cter for violenc e of the 2 4 

## particula r individual, not merely

the quantity

or quality

of the institutional restraints put on that person.” Some fac tors a jury may consider in de termining future da ng erousne ss include: 2 5 

## 1. the circumstances of the capital offe nse, i ncluding th e defenda nt’s state of mind and whether he or she was working alone or with oth er p ar t i es ; 2. the calc ulated nature of the defe ndant’s acts; 3. the fore thought and delibera teness exhibi ted by the crime’ s execution; 4. the exis tence of a prior criminal rec ord, and the sever ity of the prior crimes; 5. the defe ndant’s ag e and persona l circ u m s t an ce s at the time of the offe nse; 6. whether the defe ndant was acting under duress or the domination of another at the time of the commission of the offe nse; 7. psy chiatric evidenc e; and 8. char acte r evide nce. 2 6 

## This list is not ex haustive. The jur y is entitled to consider all the e vidence at both the g uilt and

C o b l e v . S t a t e , 3 3 0 S
. W
. 3 d 2 5 3 , 2 6 5 ( T e x . C r . A p p . 2 0 1 0 ) ( c i t i n g B e r r y v . S t a t e , 2 3 3 S
. W
. 3 d 8 4 7 , 8 6 0 ( T e x . 22 C r . A p p . 2 0 0 7 ) )
.

I b i d

. 23 E s t r a d a v . S t a t e , 3 1 3 S
. W
. 3 d 2 7 4 , 2 8 1 ( T e x . C r . A p p . 2 0 1 0 )
. 24 C o b l e , 3 3 0 S
. W
. 3 d a t 2 6 8
. 25 K e e t o n v . S t a t e , 7 2 4 S
. W
. 2 d 5 8 , 6 1 ( T e x . C r . A p p . 1 9 8 7 )
. A c c o r d , C o b l e , 3 3 0 S
. W
. 3 d a t 2 6 9 , n . 2 4
. ( T h i s l i s t 26 d o e s n o t i n c l u d e c h a r a c t e r i s t i c s o f t h e p r i s o n s y s t e m . )
.

## --9

punishment stage s of trial. 2 7 

## The jury hear d evidenc e about the pla nning a nd fore thought that we nt into thi s offe nse. The a ppellant met with his acc omplices to plan their ac tions, made previous a ttempts to rob the
owner s of the same store, and e ven tested a substance de signe d to act like napa lm before he attempted to burn down the house of the c onvenienc e store ow ners to for ce the m to move the money . He se t fire to their house while they wer e home. The re w as evide nce the appellant wa s the leade r in this offense , and he dir ecte d the other me n as to their role s and how e very one should proce ed. There was e vidence the appe llant had threa tened his ex-wife w ith a g un in their home afte r she f ound out he was c heating on her. O n a sepa

rate occa sion, he waited f or his ex-wife at their daug hter’s sc hool and, when she arr ived, he pulled his daug hter out of the c ar a nd threw DVD c ases a t his ex -wife , cutting he r fa ce. Additionally , the jury

hear d evidenc e sug g esting the appe llant fake d a suicide a ttempt in order to attempt an esc ape f

rom the hospital, and jail offic ers f ound a “sha

nk” under the appellant’ s bed in his jail cell. There was e vidence of the fir st four fa ctors fr om Keeton , as we ll as an abse nce of evidenc e that he w as ac ting unde r dure ss or domination at the time of the off ense. When considere d with evidence from the g uilt phase about the c allous nature of this murder, a r ational juror could have found a

probability

that the appe llant would commit future cr iminal acts of violence tha t would constitute a continuing threa t to society . We overrule the appe llant’s nineteenth point of e rror .

T E X . C O D E C R IM . P R O C . a r t
. 3 7
. 0 7 1 , § 2 ( d ) ( 1 )
. 27

## --10 III. Jury Selection After examining venire members ove r seve n wee ks, the trial cour t qualified 48 fr om whom to select a

jury . The a

ppellant used his 15 statutorily allotted pere mptory

strikes and wa s g rante d two additional strikes by the cour t. I n three points of error , he now a rg ues that three of the venire members he struck should have been e x cused f or ca use. A. Standard of

Review A venire member ma

y be cha lleng ed for

cause for ha ving a

bias for or

ag ainst the defe ndant, or a g ainst the law. The trial c ourt should gr ant a c halleng e for cause if these biase s 2 8 

## would be so strong as to substantially impair the pane list’s abilit y to car ry out his oath and follow the cour t’s leg al instructions. The propone nt of a strike doe s not meet his burden “ until he has 2 9 

## shown that the venire man under stood the require ment of the law and could not over come his prejudice well enoug h to follow it.” 3 0 

## When review ing the g rant or de nial of a c halleng e for cause , we e x amine the r ecor d of the voir dire to determine if the re is suff icient evidenc e to support the trial c ourt’s ruling
. Be cause 3 1 

## the trial judg e is prese nt to observe the ve nire membe r’s tone a nd demea nor, we g ive g rea t defe renc e to dec isions made reg arding venire members whose answe rs ar e vac illating, uncle ar, or contra dictory
. 3 2

T E X . C O D E C R IM P R O C . a r t 3 5
. 1 6 ; s e e a l s o S a d l e r v . S t a t e , 9 7 7 S
. W
. 2 d 1 4 0 , 1 4 2 ( T e x . C r . A p p . 1 9 9 8 ) 28 ( i n t e r p r e t i n g “ b i a s a g a i n s t t h e l a w ” t o m e a n “ r e f u s a l t o c o n s i d e r o r a p p l y t h e r e l e v a n t l a w ” )
. T h r e a d g i l l v . S t a t e , 1 4 6 S
. W
. 3 d 6 5 4 , 6 6 7 ( T e x . C r . A p p . 2 0 0 4 )
. 29 F e l d m a n v . S t a t e , 7 1 S
. W
. 3 d 7 3 8 , 7 4 7 ( T e x . C r . A p p . 2 0 0 2 )
. 30 I b i d
. , a t 7 4 4
. 31 I b i d
. 32

## --11

To show har

m from the er

roneous de nial of a c halleng e for cause , the appe llant must show that the trial cour

t’s failure to strike a cha lleng eable juror for ced him to use a statutorily allotted pere mptory

strike on the cha lleng eable juror, which le ft him unable to strike an objectionable jur or who then sa t on the jury
. Be cause the trial cour t in this case g rante d the 3 3 

## appellant two pe remptory strikes in addition to his s tatutory allotment of 15, the appe llant must show that the trial cour

t improperly

denied a t least three challeng es for cause in order to show harm. 3 4 

## B. Anti-P artie s Sp ecial Issue I n points of error

three , four, a

nd five, the a

ppellant ar g ues that the trial c ourt err ed in deny ing his c halleng es for cause to three ve nire membe rs on the g rounds that they could not
answe r “no” to the anti-par ties special issue a t punishment after r eturning a g uilty verdic t. The anti-par ties special issue is re quired to be submitted to the jury at the punishment phase in c ases in which the jury

was g iven a pa

rties instruction at the g uilt phase of the tria l. I t asks whether the defe ndant ac tually

cause d the dea th of the dec ease d or did not actua lly cause the dea th of the dece ased but intende d to kill t he dec ease d or anothe r or a nticipated that a huma

n life would be taken. We shall analy

ze the appellant’ s claim with respe ct to eac h of the thre e venir e member s 3 5 

## below. C. Specifi c Challenges 1. Knox. I n his third point of error, the appellant a rg ues that Ve nire Membe r Knox

S a l d a n o v . S t a t e , 2 3 2 S
. W
. 3 d 7 7 , 9 1 ( T e x . C r . A p p . 2 0 0 7 )
. 33 I b i d
. 34 S e e T E X . C O D E C R IM . P R O C . a r t
. 3 7
. 0 7 1 , § 2 ( b ) ( 2 )
. 35

## --12

should have be en struck f or ca use bec ause he was una

ble to follow the law w ith respec t to the anti-par ties special issue. Knox first stated that he unde rstood the anti-pa rties spec ial issue and would answe r depe nding on w hether the State prove d it bey ond a re asonable doubt or not. During questioning by

the appe llant, Knox said he c ould not imagine c ircumstance s in which he would answe r the que stion “no.” This led to an e x tensive deba te betwe en the a ttorney s reg arding the law of parties a nd the anti-pa

rties spec ial issue. Some of this was held in Knox’s presenc e and some a fter he was e x cused f rom the cour

troom. When he retur

ned and w as questioned a g ain, he re iterate d that it made sense to a nswer the question “y es” a fter ha ving c onvicted a de fenda

nt at the g uilt st ag e. When the appellant c halleng ed Knox for ca use base d on an inability

to follow the law with respec t to the anti-parties spe cial issue, the judg e said she thoug ht Knox was c onfused a nd he had a nswere d both way s, so Knox returne d for a dditional questioning. Knox was provided with another e x planation of the r eleva nt law, and, in re sponse to this final line of questioning, stated he c ould see c ircumstance s where the answe r would be “ no.” Knox also said he would not automatically

answe r “y es” to the a

nti-parties spec ial issue, but would list en to the fa cts and evidenc e to g uide him. The judg e then de nied the cha lleng e for cause . We affor d g rea t defe renc e to the trial c ourt in determining whether vacillating venire members a

re f it to serve as juror s. We overrule the appe llant’s third point of error
. 3 6 

## 2. Ranney I n his fourth point of err or, the a ppellant ar g ues that Ve nire Membe r Ranney should have be en struck f or ca use bec ause she would alway s answer “y es” to the a

ntiparties spe cial issue. Dur ing Ra nney ’s voir dire examination, she first said she would be a ble to

F e l d m a n , 7 1 S
. W
. 3 d , a t 7 4 4
. 36

## --13

answe r the que stion “no” if ther e wa s not evidence the def endant ha d anticipated a

killing. Then, in response to a

ppellant’s questioning , she said she w ould alway s answer “y es.” When the appellant c halleng ed Ranne y for c ause, the court off

ere d an opportunity

to bring her ba ck to the cour troom for a dditional questioning bec ause she answe red the question two differ ent way s. Both sides dec lined to question her fur ther. The judge denied the c halleng e for c ause. We find that Ranne y ’s potential pre judices we re not so cle ar a s to make the trial court’s de cision an abuse of discre tion. W e over rule the a ppellant’s four

th point of error
. 3. Castleber ry I n his fifth point of error , the appe llant arg ues that Ve nire Membe r Castleberr

y should have be en struck f or ca use bec ause she was una

ble to follow the law w ith respe ct to the anti-pa

rties spec ial issue. Castleberr y first indicated she could do a f resh a naly sis for the a nti-parties spec ial issue based on the evidenc e, and she would not answer it automatically

based on the result at the g uilt phase of the tria l. Upon further questioning by

the appellant a

bout whether

the answe r would automatica lly be “y es,” Castlebe rry

qualified he r response by

say ing, “ I f he took a

g un to the crime, a

loaded g un, that’s a possibility , y es.” She
never made a n unqualified stateme nt that she would alwa y s answer this special issue “y es.” 3 7 

## At the conc lusion of Castleberry ’s examination, the judge denied the a ppellant’s challeng e for

cause . We find that Castleberr y ’s potential pre

judices, if any , wer e not so clea r as to make the tr ial court’s de cision an abuse of discre tion. W e over rule the a ppellant’s fifth point of
err or. The a

ppellant has not shown that the tria l court improper ly denied a t least three

N e i t h e r t h e S t a t e n o r t h i s C o u r t h a v e b e e n a b l e t o l o c a t e t h e s t a t e m e n t t h e a p p e l l a n t i n c l u d e d i n h i s b r i e f i n 37 w h i c h V e n i r e M e m b e r C a s t l e b e r r y a p p e a r s t o s a y s h e w o u l d a l w a y s a n s w e r y e s t o t h i s s p e c i a l i s s u e i f s h e h a d a l r e a d y c o n v i c t e d t h e a p p e l l a n t
.

## --14

challeng es for

cause . There fore there was no ha rm. IV. Evidence The a ppellant ra ises sever al points of err or re g arding evidenc e admitted at tria l.

A. Standard of

Review A trial cour

t’s ruling on the admissibilit y of evide nce is re viewed unde r an a buse of discretion standa

rd. I f the ruling is within t he zone of re asonable disag ree ment, an appe llate 3 8 

## court will not disturb it. When a trial cour t decides not to exclude the e vidence , finding that the 3 9 

## probative va lue of the e vidence is not subst antially outweig hed by

the dang er of

unfair pr ejudice, this decision will also be g iven def ere nce. 4 0 

## B. App licable Law Only rele vant evidenc e is admissible. Relevant e vidence is “evidenc e having any 4 1 

## tendenc y to make the e x istence of

any fac t that is of conseque nce to the de termination of the action more probable or less proba ble than it would be without the evidenc e.” There fore , to be 4 2 

## rele vant, evidenc e must be mater ial and proba tive. Evidence is material if it is “shown to be 4 3 

## addre ssed to the proof of

a mater ial proposition, i.e., any fac t that is of conseque nce to the

M o s e s v . S t a t e , 1 0 5 S
. W
. 3 d 6 2 2 , 6 2 7 ( T e x . C r . A p p . 2 0 0 3 )
. 38 I b i d
. 39 I b i d
. 40 T E X . R
. E V ID . 4 0 2
. 41 T E X . R
. E V ID . 4 0 1
. 42 M i l l e r v . S t a t e , 3 6 S
. W
. 3 d 5 0 3 , 5 0 7 ( T e x . C r . A p p . 2 0 0 1 )
. 43

## --15

deter mination of the ac tion.” 4 4 

## Relevant e vidence “may

be excluded if its probative va lue is substantially outweig hed by the dang er of

unfair pr ejudice, c onfusion of the issues, or misleading the jury , or by considerations of undue delay , or nee dless prese ntation of cumulative e vidence .” 4 5 

## 1. Surveillan ce V ideo I n the appe llant’s thirteenth point of er ror, he arg ues the trial court e rre d in admitting a c ompilation of image s, compiled from sec urity came ras inside the store during the time of the off ense, be cause a prope r pre dicate ha d not been laid. Another c ompilation of image s from the same video ca mera s, showing the same time period during the offe nse, wa s admitted into evidence throug h a diffe rent witness a s State’s Ex hibit 101 without objection from the a ppellant. I n these c ircumstance s, no reve rsible er ror is prese nted. “An e rror

[i f any ] i n the admission of evidenc e is cure d wher e the sa me evidenc e comes in elsew here without objection.” Appellant’s thirtee nth point of error is overrule d. 4 6 

## 2. “P ract ice Runs” I n the appe llant’s fourtee nth point of error , he ar g ues the trial c ourt
err ed in admitting e vidence of “e x trane ous bad ac ts the State attributed to appellant that involved so called ‘ prac tice runs’ for the c harg ed off ense.” As noted in the State’s brie f, the a ppellant does not specifica lly

identify the extraneous bad a cts he is complaining about bey ond ref err ing to them as “so c alled pra ctice r

uns.” The Court will assume, as did the State, that this ref ers to the 4 7 

## planning and attempted e x ecution of thre e sepa rate attempts to rob the conve nience store cle rk in

I b i d
. 44 T E X . R
. E V ID . 4 0 3
. 45 L a n e v . S t a t e , 1 5 1 S
. W
. 3 d 1 8 8 , 1 9 3 ( T e x . C r . A p p . 2 0 0 4 ) ( c i t i n g V a l l e v . S t a t e , 1 0 9 S
. W
. 3 d 5 0 0 , 5 0 9 ( T e x . 46 C r . A p p . 2 0 0 3 ) )
.

S t a t e ’ s B r i e f a t 9 7
. 47

## --16

the wee k befor e the a ctual off ense w as committed. Acc omplice-witness Smith testified about sever al attempts to rob the store c lerk, none of which we re c ompleted until the morning of Tuesday , Marc h 23, when this offe nse wa s committed. A wee k befor e the murde rs, the appe llant met Smi th and Tim Thomas at a H ooters to plan the robbe ry

for the ne x t morning. Thoma s backe d out later that nig ht, so the next day , a Wednesday , the appe llant and Smith went on a “scouting run” instea d. Two day s later, on F riday , the appe llant broug ht walkie-ta lkies to work and a nnounced tha t the robber

y would be committed the following morning , and they would use the wa lkie-talkies to communicate . But whe n they
arr ived Saturday

morning , they

abandone d their plan be cause there was a n extra employ ee at the store. The appellant a

nd sever al ac complices re turned Sunday morning and sat outside the convenie nce store for a

bout two hours befor e dec iding it was too risky to attempt the robber

y that day . The robbe ry

and murde rs ultimately

took place on T uesday , two day s later. This court has he ld that “evidenc e of the context of an offe nse ‘is alwa y s admissible [because] eve nts do not occur in a va cuum and the jur y has a r ight to have the offe nse plac ed in its proper setting so that all the evidenc e may be re alistically

evalua ted.’” The jury

here was 4 8 

## authorized to find the appe llant guilty as a pa rty under Sec tion 7.02(b)’s conspira cy theory of party liability
. Evidence of the planning meeting , “scouting run,” a nd previous attempts wa s 4 9 

## rele vant to the jury ’s deter mination of whether

or not the appe llant eng ag ed in a c onspiracy with his acc omplices and wa s thus admissibl e.

B u r k s v . S t a t e , 8 7 6 S
. W
. 2 d 8 7 7 , 9 0 0 ( T e x . C r . A p p . 1 9 9 4 ) ( c i t i n g M a n n v . S t a t e , 7 1 8 S
. W
. 2 d 7 4 1 ( T e x . C r . 48 A p p . 1 9 8 7 ) ) ( h o l d i n g t h a t t e s t i m o n y t h a t t h e a p p e l l a n t s o l i c i t e d h e l p i n a r o b b e r y a m o n t h p r i o r t o t h e c h a r g e d o f f e n s e o f m u r d e r i n t h e c o u r s e o f r o b b e r y w a s a d m i s s i b l e a s p r o o f o f t h e a p p e l l a n t ’ s p l a n s a n d p r e p a r a t i o n s , a s w e l l a s p r o o f o f a c t i o n s w i t h i n t h e s a m e t r a n s a c t i o n a s t h e c h a r g e d o f f e n s e )
. T E X . P E N A L C O D E § 7
. 0 2 ( b )
. 49

## --17

Appellant’s f

ourtee nth point of error

is overrule d. 3. P ossession of

a F irear m The a

ppellant’s point of er

ror f ifteen- A is that the trial

5 0 

## court e rre d in admitting evidenc e that he w as in possession of a f irea rm when he was a

rre sted. A 9mm pist ol was found in the a ppellant’s truc k afte r he w as ar rested in San Antonio, and ba llist ics testing showe d it was not the fire arm used in the of fense . The a

ppellant ar g ues any

probative value of this evidence was outwe ighe d by its potential for prejudice
. “Rule 403 fa

vors the admission of re levant evide nce a nd car ries a pr esumption that rele vant evidenc e will be more probative tha n prejudicia l.” This court will not rever se a

5 1 

## conviction for the err oneous admission of evidenc e “if the appe llate cour

t, after examining the
rec ord as a

whole, has f

air a ssuranc e that the a dmission of thi s evidenc e did not influence the jury , or had but a

slight ef fec t.” I n weig hing the probative va lue of off ere d evidenc e under

Rule 5 2 

## 403, we use the non-e x clusive four -fa ctor a pproac h orig inally

set forth by

this Court i n Montgomery

v. State : 5 3 

## (1) how pr obative the e vidence is; (2) the pote ntial of the evide nce to impre ss the jury in some irrational, but never theless indelible way ; (3) the time the pr oponent nee ds to develop the e vidence ; and (4) the pr oponent’s nee d for the e vidence
. 5 4 

## Evidence of the g

un was pre sented throug h a San Antonio police of fice r who found the

A p p e l l a n t ’ s b r i e f c o n t a i n s t w o s e p a r a t e p o i n t s o f e r r o r l a b e l e d P o i n t F i f t e e n . A s n o t e d i n S t a t e ’ s B r i e f , a t 1 0 4 50 n . 9 , t h e a p p e l l a n t a n d t h e S t a t e a g r e e d t o r e f e r t o t h e s e p o i n t s a s 1 5 a a n d 1 5 b , a n d w e s h a l l d o l i k e w i s e . S h u f f i e l d v . S t a t e , 1 8 9 S
. W
. 3 d 7 8 2 , 7 8 7 ( T e x . C r . A p p . 2 0 0 6 )
. 51 C o b b v . S t a t e , 8 5 S
. W
. 3 d 2 5 8 , 2 7 2 ( T e x . C r . A p p . 2 0 0 2 )
. 52 8 1 0 S
. W
. 2 d 3 7 2 , 3 8 9

- 9 0 ( T e x . C r . A p p . 1 9 9 1 )
. 53 S h u f f i e l d , 1 8 9 S
. W
. 3 d , a t 7 8 7
. 54

## --18

firea rm in the appe llant’s truck whe n it was sear ched a fter his a rre st. Appellant’s possession of the g un was re levant to the State’s theor y that the appe llant disposed of his gun a long w ith his clothes af ter the murde rs and then pur chase d a new g un to replac e the we apon used in the offe nse. The jur

y hear d testimony

that the appe llant often had a 9mm gun with him, and the da y afte r the murde rs he a sked a c o-worke r if he kne w any one who wa s selling a g un. The c o-worke r direc ted the appe llant to his father. Possession of the fire arm wa s also rele vant to show the appellant’ s consciousness of g uilt, in t hat he a rmed himself a s he fled f

rom For t Worth. The photog raphs of

the g un wer e in no way

g ruesome, a

nd the jury

was a war e the appellant ha d possessed g uns in the past. There was no da ng er of impressing the jury

in some irrational wa

y . Fur thermore , the evidenc e took ver y littl e time to introduce throug h the San Antonio police offic er, w ho was a lrea dy on the stand to testify

about the sea

rch of the appe llant’s truck a nd other items found during that sear ch. The trial c ourt did not abuse its discretion in admitting e vidence reg arding the appe llant’s possession of a fir ear

m when he w as ar

rested, a s the dang er of

unfair pr ejudice did not substantially

outweig h the proba tive value of the evidenc e. Point of err or fifte en-A is overrule d. 4. Text Me ssages The a ppellant’s six teenth point of er ror is that the trial c ourt err ed in admitting text m essag es sent fr om the appellant to co- acc omplice Chance Smit h. He a rg ues that the proba

bility of conf usion on a critica l issue in the case outweig hed any probative va lue the messag es may

have ha d. This does not comport with the objection made at trial. “In order for a n issue to be prese rved on a

ppeal, ther e must be a timely objection which spe cifica lly states the leg al basis for

## --19

the objection.” “An objec tion stating one le g al basis may not be used to support a diff ere nt leg al 5 5 

## theory on appea l.” 5 6 

## At trial, the text m essag es we re a dmitted at the g uilt phase throug h the For t Worth detec tive who extracted the m from Smith’s cell phone. During a hea ring outside the jury ’s prese nce, the following objections wer e made : [DEFENSE COUNSEL ]: Well, what we would objec t to, J udg e, is the ver y first set on Pag e [sic] 3-6, the 1135 throug h 1139. And we w ould object to these, number one , beca

use they ’re on Marc h the 5th, actua lly in rea l time, which is outside of the time that we’ re r estricting here in our motion in l imine and motions about extraneous off

enses. Number two, the se – we don’t rea lly know what they ’re even ta lking a bout in here from the c ontext of this ...

... We don’t have a

ny idea what they ’re talking a bout. And they

could be talking a bout something c ompletely differ ent, espe cially

since it was Ma

rch 6th [si c] and outside the time period of a ny kind of planning that we’ ve bee n able to g o into. And, quite fra

nkly , J udg e, we are a little bit – a whole lot of surprised by this because we we re a ctually told that they

wer en’t g oing to introduc e any of these text messag es. And while w e have skimmed through the m, we have n’t g one throug h them in in-depth [si c] to see if there might be some optional completeness involved. But rig ht now we would objec t to the Page 86 for the r easons that I ’ve just stated. After further discussion about what co- acc omplice Smith t estified to re g arding the planning time line and these spe cific te x t messag es, the following exchang e occ urre d: THE COURT: Okay . So I g uess – they ’re entitled to go into these . I f y our objection is to showing the date, then I would think the remedy

for that is to not show the date . But I ’m not sure that that’s a ccur ate e ither, so – [DEFENSE COUNSEL ]: Well, now, I think that’s even more confusion of the

R e z a c v . S t a t e , 7 8 2 S
. W
. 2 d 8 6 9 , 8 7 0 ( T e x . C r . A p p . 1 9 9 0 ) ; s e e T E X . R
. A P P . P R O C . a r t
. 3 3
. 1
. 55 R e z a c , 7 8 2 S
. W
. 2 d a t 8 7 0 ( h o l d i n g a n o b j e c t i o n b a s e d o n l a c k o f p r o b a b l e c a u s e d o e s n o t p r e s e r v e a n 56 a r g u m e n t t h a t t h e j u r y m a y n o t b e a b l e t o h e a r t h e d e f e n d a n t i n v o k e h i s r i g h t t o c o u n s e l )
.

## --20

issues for the jury , J udg e. THE COURT: Okay
. [DEFENSE COUNSEL ]: Be cause they ’re not – they potentially

could be sitting there g oing, w ell, when wa s this done, what was this re fer ring to? That’s why

we wer e say ing tha t – THE COURT: Right. His testimony is that it was refe rring to the robber y at the Valer o. [DEFENSE COUNSEL ]: Well, but, aga in, from the conte x t of Pag e 86, y ou don’t know what he ’s re fer

ring to. THE COURT: Well, his t estimony was that he was re fer

ring to the robber

y at the Valer o. Okay
. ... [I nstructions to the State on how to prepa re the actua l copy

of the messag es that would be pr esente d to the jury ] Okay . So let me put this on the re cord. I ’m g oing to ove rrule de fenda nt’s objections to these thre e sec tions of tex t messag es. Howe ver, if y ou want to delay y our cr oss-examination of this wit ness base d upon y our surprise that they wer e offe ring this, we ca

n do that. The trial judg e appe ars to have understood and r uled on the appe llant’s objection to the dates of the text messag es. The c opy of the text messag es that wa s admitted into evidence and shown to the jury

had the da tes remove d on eac h messag e. On appe al, the appe llant now arg ues that the messa g es had the potential to confuse the jury beca use “the messag es appe are d to relate to bad ac ts bearing only slight proba tive value, but
wer e subjec t to inherently unfair inter

preta tion.” This arg ument does not comport with the objection that was ma de at tria l. The six teenth point of er ror is over

ruled. V. Confrontation Clau se The a ppellant’s point of er

ror f ifteen- B c omplains of the trial cour t’s overr uling of his objection, base d on the Confrontation Clause, to testimony about out-of- court stateme nts made to

## --21

Chance Smit h by

an ac complice. The statements conc erne d inculpatory items that were said to have be en thrown into the rive r by the appe llant. The Six th Amendment to the United States Constitut ion protects an a ccuse d’s rig ht to be confr onted with the witnesses a g ainst him in a criminal prosec ution. The admission at trial of a testimonial, out-of-cour

t statement is barre d by

the Confrontation Clause of the Six th Amendment unless two “de mands” of the Clause ar e met: “una vailability [of the witness] and a prior opportunity

for c ross-examination.” The Six th Amendment does not bar the admission of 5 7 

## non-testimonial hear say . 5 8 

## Whil e the e x act c ontours of wha t is testim onial are still being define d by the cour ts, it has been he ld that such statements ar e for mal and similar to trial testimony : in other words, those “that we re ma de under

circ umstances whic h would lead a n objective witness r easona bly to believe tha t the statement would be a vailable f or use a t a later

trial.” “The primary

focus in 5 9 

## deter mining whe ther a

n out-of-c ourt statement is ‘testimonial’ is on the objective pur pose of the interview or

interrog ation, not on the decla rant’s e x pecta tions.” Gene rally , statements made by 6 0



## a co- conspirator

in further ance of the c onspiracy are nontestimonial. Although w e def er to the 6 1 

## trial court’ s determinations of historica l fac ts and cre dibilit y , we r eview de novo the ruling on the

C r a w f o r d v . W a s h i n g t o n , 5 4 1 U
. S
. 3 6 , 6 8 , 1 2 4 S
. C t
. 1 3 5 4 , 1 3 7 4 , 1 5 8 L
. E d
. 2 d 1 7 7 ( 2 0 0 4 )
. 57 S a n c h e z v . S t a t e , 3 5 4 S
. W
. 3 d 4 7 6 , 4 8 5 ( T e x . C r . A p p . 2 0 1 1 )
. 58 C r a w f o r d , 5 4 1 U
. S
. , a t 5 2
. S e e a l s o D e L a P a z v . S t a t e , 2 7 3 S
. W
. 3 d 6 7 1 , 6 8 0 ( T e x . C r . A p p . 2 0 0 8 ) 59 ( “ G e n e r a l l y s p e a k i n g , a h e a r s a y s t a t e m e n t i s ‘ t e s t i m o n i a l ’ w h e n t h e s u r r o u n d i n g c i r c u m s t a n c e s o b j e c t i v e l y i n d i c a t e t h a t t h e p r i m a r y p u r p o s e o f t h e i n t e r v i e w o r i n t e r r o g a t i o n i s t o e s t a b l i s h o r p r o v e p a s t e v e n t s p o t e n t i a l l y r e l e v a n t t o l a t e r c r i m i n a l p r o s e c u t i o n . ” )
.

C o r o n a d o v . S t a t e , 3 5 1 S
. W
. 3 d 3 1 5 , 3 2 4 ( T e x . C r . A p p . 2 0 1 1 )
. 60 S e e C r a w

f o r d , 5 4 1 U
. S , a t 5 6 ( “ M o s t o f t h e h e a r s a y e x c e p t i o n s c o v e r e d s t a t e m e n t s t h a t b y t h e i r n a t u r e w e r e 61 n o t t e s t i m o n i a l

– f

o r e x a m p l e , b u s i n e s s r e c o r d s o r s t a t e m e n t s i n f u r t h e r a n c e o

f a c o n s p i r a c y . ” ) ( e m p h a s i s a d d e d )
.

## --22

constitutional question of whether a statement is testimonial or non-testimonial. 6 2 

## Acc omplice Chance Smit h testified about his conve rsation with another acc omplice, Randy Seibel, at the ca

r lot five or six hours after the murders: Q. [by State]: Did y ou have a

ny conver sation with him about the items that y ou wer e supposed to have g otten rid of, the stuff that it was y our job to dispose of? Did y ou ask him about that stuff? A. Yes. I asked him wha

t they had did [sic] with ever

y thing. And he responde d that he — or tha t they

had all thrown it aw ay

into the river be hind [ the appellant’ s] apartment. Q. When y ou — what does “ ever y thing” mean? A. Ever y thing would be like the g as ca n, the clothes they

wer e we aring , the g uns involved. Smit h had testified e arlier that the appe llant said to meet him at an I HOP to ge t rid of the items that were used in the off ense. Smith asked Seibel wha t happene d to the wea pon, the clothing, a

nd the g as ca

n in order to de termine whe ther he neede d to ge t those items and dispose of them. That wa s not an interrog ation or interview , and law e nforc ement wa s not involved. These sta tements wer e not testimonial, and the Confrontation Clause did not make the testimony inadmissible. The appe llant’s point of err or fifte en-B is overrule d. VI. P rosec utor’s Closing Argum ents The a ppellant bring s sever al points of err or about the State’ s jury arg uments at the g uilt and punishment stag es. A. Standard of Review Gene rally , jury

arg ument must be (1) summation of the e vidence , (2) r easona ble

W a l l v . S t a t e , 1 8 4 S
. W
. 3 d 7 3 0 , 7 4 2 & n . 4 4 ( T e x . C r . A p p . 2 0 0 6 )
. 62

## --23

deduction fr om the evidenc e, (3) answe r to arg ument of opposing counsel, or ( 4) a ple a for law enfor ceme nt. 6 3 

## A trial cour

t’s ruling on a motion for mistrial is reviewe d for a n abuse of

discretion. An

6 4 

## appellate court will view the e vidence in the light most favor able to the tria l court’s ruling , and the ruling will be upheld if it was within the zone of re asonable disag ree ment. 6 5 

## To eva luate whe ther the tria l court abuse d its discretion in deny ing a mistrial for improper jury arg ument, we c onsider the se verity of the misconduct ( i.e. , the pre judicial eff

ect) , the
measure s adopted to cur e the misconduc t, and the ce rtainty of the same verdic t’s being returne d if there had not bee n such misconduct. “Only in ext reme circ umstances, whe re the prejudice is 6 6 

## incura ble, will a mistrial be re quired.” 6 7



## B. Jury Argum ent at G uilt Phase The a ppellant’s sec ond point of err or complains of the denial of the motion for mistrial he made a fter his objec tion was sustained during jury arg ument at the g uilt phase. Refe rring to the
acc omplice witness Chance Smit h, the prosec utor arg ued: Now, let’s talk a

bout Chance. A nd they ’ve trie d ever y way they can to de moniz e Chance . And I ’ll tell y ou what, y ou know what, I probably wouldn’t buy

a ca r from Chanc e either . But I ’ve ha d the bene fit to, number one, sit down over time and listen to what Chance has to say and eva luate wha t Chance ha s to say
.

B r o w n v . S t a t e , 2 7 0 S
. W
. 3 d 5 6 4 , 5 7 0 ( T e x . C r . A p p . 2 0 0 8 )
. 63 O c o n v . S t a t e , 2 8 4 S
. W
. 3 d 8 8 0 , 8 8 4 ( T e x . C r . A p p . 2 0 0 9 )
. 64 I b i d

. 65 H a w k i n s v . S t a t e , 1 3 5 S
. W
. 3 d 7 2 , 7 6

- 7 7 ( T e x . C r . A p p . 2 0 0 4 ) ; M o s l e y v . S t a t e , 9 8 3 S
. W
. 2 d 2 4 9 , 2 5 9 ( T e x . 66 C r . A p p . 1 9 9 8 )
.

H a w k i n s , 1 3 5 S
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. 3 d , a t 7 7
. 67

## --24

The a ppellant objecte d that this was outside the rec ord and “ interjec ted evidenc e.” T he cour t sustained the objec tion, inst ructe d the jury to disreg ard the arg ument, and denie d a mistrial. The prose cutor c ontinued by essentially

repe ating the ar g ument, say ing: Well, ladies and g entlemen, they sug g ested that, oh, we just take Chance – we just take Chanc e at his word a nd we r un with it. W hy

would the State make a

deal with Chance? Well, we sat down and w e talked to him, y ou can se e, for a number of hours on many

differ ent day s. The a ppellant did not object. The a ppellant also had not objec ted to the prosec utor’s ea rlier a rg ument that afte r mee ting with the witness for “ day s, not hours,” the State “ called him as a witness beca

use he pr oved to us that he’s telling the truth.” “[W ]i th two exceptions, the law in Texas require s a par ty to continue to object ea ch time inadmissible evidence is offer ed. The two exceptions require counsel to either (1) obtain a running objection, or (2) reque st a hea ring outside the prese nce of the jury .” The same

6 8 

## require ment applies to jury arg uments. I n this inst ance , beca use the a ppellant did not continue to object, did not obtain a running objection, and did not re quest a he aring outside the prese nce of the jury , the issue was not pre serve d for our revie w. C. Jury Argum ent at P uni shme nt P hase Points of er

ror e leven a

nd twelve c omplain of the denia l of the appe llant’s motions for mistrial that were made dur ing a rg ument to the jury

in the punishment stage
. 1. Jail Report . Severa l jail officer s testified about a r azor being found in the appe llant’s cell. One office r, name d Hollie, testified that he ha d written in a re port that he ha d seen othe r

M a r t i n e z v . S t a t e , 9 8 S
. W
. 3 d 1 8 9 , 1 9 3 ( T e x . C r . A p p . 2 0 0 3 )
. 68

## --25

inmates throw something into the appellant’s c ell befor e the r azor was f ound. The re port was not produce d in court. Def ense c ounsel arg ued that the State’ s investiga tors had tried a nd failed to find suc h a repor t and that they

wer e unable to find it because the eve nt had occ urre d on a diffe rent da y . The prose cutor a

rg ued that “if

[Holl ie] saw any

thing a t all, he neve r, eve r wrote a re port about it.” The c ourt sustained the a

ppellant’s objec tion to the arg ument and instructed the jury to disreg ard, but de nied a motion for mistrial. The a ppellant’s ele venth point of err or complains of that denial. The prose cutor then sa id that defe nse counse l’s arg ument was c orre ct, that the State had been “ chec king” for suc h a re port, and “ no such re port had be en made .” The court sustained the appellant’ s objection, instructed the jury to disreg ard the arg ument, and denie d a motion for mistrial. Neither denial of a

mistrial was a re versible e rror . The que stion about the repor t was tang ential to the issue of a razor being found in the appe llant’s cell. F ive other w itnesses testified about the finding of such a razor. And the c ourt instructed the jury to disreg ard the prosec utor’s arg ument about the existence of the repor t. Such instructions ge nera lly cure err ors. 6 9 

## The issue for

the jury at that stag e of the trial was the likelihood that the de fenda nt would continue to commit criminal ac ts of violence if he we re not put to dea th. I n addition to evidence about the appe llant’s other c riminal behavior ( setting on f ire the house of the owne rs of the

S e e M a r t i n e z v . S t a t e , 1 7 S
. W
. 3 d 6 7 7 , 6 9 1 ( T e x . C r . A p p . 2 0 0 0 ) ; G u i d r y v . S t a t e , 9 S
. W
. 3 d 1 3 3 , 1 5 4 ( T e x . 69 C r . A p p . 1 9 9 9 )
.

## --26

convenie nce store wher e he c ommitt ed the r obbery , at a time whe n they wer e at home; threa tening his wife with a g un and assa ulting her by throwing things a t her; fa king a suicide attempt in an ef

fort to g et into a hospital from which he could esc ape) , they had the e vidence of the ca pital murder of

which they

had just found him guilty . The jury was likely

to return the sa

me
answe r to the spec ial issue without the prosecutor ’s comments. We hold that the denials of a mistrial were not reve rsible er ror. 2. Mention of Victim s’ F am ilies . Points of er ror 17 a nd 18 have to do with jury arg ument at the punishment phase. T he State aske d for a nswers to the punishment issues that would lead to a se ntence of dea th beca use they wer e “w hat the law de mands. That’s wha t justi ce demands. Tha t’s what these families demand. A nd, ladies and g entlemen, we have br oug ht y ou the evidenc e, and now

its ti me to answe r these spe cial issues.” There was no objec tion. The point was not prese rved f or re view. The a ppellant complains of the r efe renc e to the fa milies’ demand, but his brief doe s not prese nt a leg al ar g ument or cite a uthority . The point is not adequate ly briefe d. The a ppellant complains that his counsel’s f ailure to objec t was ineff

ective a ssistance. As is almost alway s the ca se, the a ppellate r ecor d is inadequate to support such a c omplaint in a case in which there was no motion for ne w trial on such a g round. 7 0 

## VII. Ind ictm ent I n point of err or nine, the a ppellant complains that the trial c ourt err ed in over ruling his motion to preclude the imposition of the dea th penalty beca use the indictment had no a lleg ations

S e e , e . g . , R y l a n d e r v . S t a t e , 1 0 1 S
. W
. 3 d 1 0 7 , 1 1 0 ( T e x . C r . A p p . 2 0 0 3 )
. 70

## --27

about the punishment issues. He a cknowledg es that this court has r ejec ted this arg ument. We 7 1 

## decline his invitation to reexamine our de cisions. VIII. Charge on “Society” I n point of err or twenty , the appe llant complains of the cha rg e at the punishment stag e not instructing the jury

that the term “ society ” in the first spec ial issue ref ers only to prison society
. We have r epea

tedly held that such ter

ms do not require de finitions. 7 2 

## Fur thermore , the appe llant’s proposed instruction wa s incorre ct. “This Court’s ca se law has construe d the future -dang erousne ss special issue to ask whe ther a defe ndant would constitute a continuing threa

t ‘whethe r in or out of prison’ w ithout reg ard to how long the def endant would actua lly spend in prison if sentenc ed to life.” 7 3 

## IX. Indi ctm ent I n points of error

six , seven, e ight, a

nd ten, the appe llant bring s constitutional challeng es to Texas’ death-pe nalty

statutes. Point s ix arg ues that the jury should have be en instructed to weig ht ag g rava ting c ircumstance s ag ainst miti g ating ones. Point seven is that the applica tion of the dea th-pena lty

statutes has bee n arbitra

ry . Point eight is that Article 37.0711 unc onstitut ionally fails to place the burde n of proof on the State. Point ten is t hat the jury should have be en cha

rg ed that a hung jury

would result in a sente nce of life imprisonment. This court has re jected a ll these

S e e F r e e m a n , 3 4 0 S
. W
. 3 d , a t 7 3 1 ; R o b e r t s v . S t a t e , 2 2 0 S
. W
. 3 d 5 2 1 , 5 3 5 ( T e x . C r . A p p . 2 0 0 7 )
. 71 S e e , e . g . , H u n t e r v . S t a t e , 2 4 3 S
. W
. 3 d 6 6 4 , 6 7 2 ( T e x . C r . A p p . 2 0 0 7 )
. 72 E s t r a d a v . S t a t e , 3 1 3 S
. W
. 3 d 2 7 4 , 2 8 1 ( T e x . C r . A p p . 2 0 1 0 ) ; s e e a l s o D r u e r y v . S t a t e , 2 2 5 S
. W
. 3 d 4 9 1 , 5 0 6

- 73 5 0 7 ( T e x . C r . A p p . 2 0 0 7 ) ( “ S t a t e h a s t h e b u r d e n o f p r o v i n g b e y o n d a r e a s o n a b l e d o u b t t h a t t h e r e i s a p r o b a b i l i t y t h a t [ t h e d e f e n d a n t ] w o u l d c o m m i t c r i m i n a l a c t s o f v i o l e n c e i n t h e f

u t u r e , s o a s t o c o n s t i t u t e a c o n t i n u i n g t h r e a t , w h e t h e r i n o r o u t o f p r i s o n . ” )
.

## --28

arg uments. 7 4 

## The judg ment of the c riminal district court is aff irmed.

Deliver ed De cembe r 11, 2013. Do not publish

S e e S a l d a n o v . S t a t e , 2 3 2 S
. W
. 3 d 7 7 , 1 0 7
- 0 9 ( T e x . C r . A p p . 2 0 0 7 ) ; T h r e a d g i l l v . S t a t e , 1 4 6 S
. W
. 3 d 6 5 4 , 6 7 1

- 74 7 3 ( T e x . C r . A p p . 2 0 0 4 )
.