## I N T H E C O U R T O F C R I M I N A L A P P E A L S O F T E X A S

N O . A P
- 7 7 , 0 1 9

M I C A H C R O F F O R D B R O W N , 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

O N D I R E C T A P P E A L F R O M C A U S E N O . 2 7 , 7 4 2 I N T H E 3 5 4 T H D I S T R I C T C O U R T

H U N T C O U N T Y

J OH NSO N , J . , d e l i v e r e d t h e o p i n i o n f o r a u n a n i m o u s C o u r t . O P I N I O N
I n J une 2013, a jury convicted appellant of murdering Stella Ray in the course of committing

or attempting to commit obstruction, reta liation, or t er ro ri s t i c threa t. T E X
. P E N A L C O D E § 19.03(a) (2). Pursuant to the jury ’s answe rs to the specia l issues set forth in Texas Code of Criminal Procedur e Article 37.071, sections 2(b) and 2(e) , the trial judge sentenc ed appellant to death. T E X
.2

C O D E C R I M
. P R O C
. art. 37.071, § 2(g ). Direc t appea l to this Court is automatic. Art. 37.071, § 2(h). 1 Appellant raises six points of err or. After revie wing appellant’ s points of err or, we find them to be without merit and aff

irm the trial cour

t’s judgme nt and sentenc e of de ath.
STATEMENT OF FACTS
I n J uly 2011, appellant’ s ex-wife, Stella Ray , was living in her house in Gre enville with their

t wo children, two-y ear -old Wil low and three -y ear -old Colten. She also resided with W es l ey Wil liams, her fourtee n-y ear -old son fathe red by her first husband, Trac y Wil liams. Ray planned to begin new employ

ment in another town, and appellant testified that he was conce rned about his ability to se e Wil low and Colten on a re g ular ba sis when Ray moved awa

y . Howeve r, he te stified that, when Ray

found her

new job, she told appe llant that he “would be g oing w ith her.” Wesley testified that Ray and his fathe r, Wil l i am s , h ad been divorce d for many y ear s, but they rema ined friends. He also testified t hat, at s o m e point in J uly , Ray allowed W illiams to stay
at their house beca

use Wil liams “had nowher e else to g o.” Appellant testified that, when appellant

was marrie d to Ray , Wil liams cau s ed problems in appellant’ s rela tionship with Ray

. He also testified that he and Ray maintained a sexual re lationship a fter they divorce d in 2010, but tha t Ra y beca me “cold” and “distant” towards him when W il l i am s moved i n. Appellant’s mother, Br enda Croffor d, testified t hat appellant beca me “very upset” whe n Wil liams moved in. Wesley testified that about a wee k befor e the instant o ff en s e, ap p ellant started coming to Ray ’s house in the ear ly morning hours and “bang ing on windows and doors.” When appellant did this, they “[i] g nored him until he left.”
On J uly 15, appellant came to Ray ’s house to pick up Wil low and Colten. Wesley testified

U n l e s s o t h e r w i s e i n d i c a t e d , a l l f u t u r e r e f e r e n c e s t o A r t i c l e s r e f

e r t o t h e T e x a s C o d e o f C r i m i n a l P r o c e d u r e . 13

that appellant enter ed the house without knocking and arg ued with Ray

. Appellant also walked past Wil liams twice and “hit him with his shoulder rea l hard.” R ay an d Wil liams asked appellant to leave , but he ref

used. Wesley testified that Wil liams and appellant “wound up g etting into a fig ht” when appellant walked by Wil liams, stepped on his foot, and “put his shoulder in him” a third time. Appellant and Wil liams wer e “g rabbing eac h other,” and Wesley thought that Wil liams was choking appellant at one point. Appellant t es t i fi ed that Wil liams “g rabbe d [hi m] in the choke hold and choked [hi m] ou t .” Eventually , Wil liams forc ed appellant outside and locked the door. Wesley testified that appellant then “ac ted like he was about to me ss w ith [Wi lliams’] truck,” so Wil liams walked outside and tol d him to leave. Appe llant got into his car and lef t. Wi lliams there afte r l eft Ray ’s house a

nd went to stay

with his brother in L ouisiana. Appe llant testified that he went home afte r fig hting with Wil liams and called the police. Offic er Randy Gra

y of the Gre enville Police Depa rtment testified that he spoke with appellant at his home, and appellant declined to file char g es. Gra y testified that Ray had also called the police, but at her reque st no charg es we re f iled. Appellant testified that on July 16, he had a

phone conve rsation with Ray in which he told her that he was g oing to kill h i m s el f. Ray called the police, and Offic er Gra y ag ain went to appellant’ s house. Appellant testified that he knew that Ray had called the police afte r their phone

conver sation. He told Gra y he was not rea lly suicidal and he only said that to make Ray fee l g uilty

. Whil e Gra

y was at appellant’ s residenc e, he observe d a black b ag o n t h e floor which contained a loaded sawe d-off shotgun and ammunition. Gra y arr ested appellant for possession of a prohibited 2

A p p e l l a n t t e s t i f

i e d t h a t h e s a w e d o f

f h i s s h o t g u n b e c a u s e h e w a s a n g r y a t W i l l i a m s a n d h e p l a n n e d “ t o g o 2 b a c k a n d g e t h i m w i t h i t

. ”4

wea pon. I n the living room, Gra y saw g lass pipes commonly used to smoke m ethampheta mine. Appellant also had a small amount of marijuana in his pock et at t h e time of his arr est. Gra y , howeve r, did not char g e appe llant with possession of drug s or drug para pherna lia. When appellant was rele ased from jail on J uly 17, his neig hbor, L oren Homerstea d, asked him why the police had been at his house on the previous day

. Homerstea d testified that appellant told her that Ray called the police and had him arr ested becaus e s h e t h o u g ht he was suicidal.
Homerstea d testified that she tried to calm appellant and reassure him that Ray would continue to let him see his children. Appellant testified that he returne d to Ray ’s house on J uly 19 to pick up Wil low and Colten.
He admitted that he used methamphetamines the previous night, but he denied drinking alcohol that day

. Wesley , howeve r, testified that appellant was “drunk” when he came to their house. Appellant testified t hat after he put Colten in his car , he arg ued with Ray “about when [ Wil liams] was there
in the past and [R ay ] not doing any thing to

. . . stop [W illiams] from choking [appellant].” Appellant testified t hat R ay said appellant was “too m ad,” and s he removed C olt en fr o m h i s ca r. Appellant testified that while Ray was holding Colten, he “flicke d her nose” twice, and then he g ot into his car and left. Appellant denied punching Ray in the ey e, but Wesley testified that Ray and Colten “both had a bla ck ey e” a fter the incident. Ray there afte r called the police and made a repor t of family violence. Wesley testified that 3
the police came to their house that night. Appellant, howeve r, testified that he spoke to Ray later that

I n v e s t i g a t o r F e l i c i a W h i t e o f t h e G r e e n v i l l e P o l i c e D e p a r t m e n t t e s t i f i e d t h a t , a t t h e t i m e o f R a y ’ s m u r d e r o n 3 J u l y 2 0 , t h e r e w a s a p e n d i n g f a m i l y - v i o l e n c e c a s e i n t h e s y s t e m r e g a r d i n g t h e i n c i d e n t o n J u l y 1 9 , w i t h a p p e l l a n t l i s t e d a s t h e p e r p e t r a t o r . S h e t e s t i f i e d t h a t p a r t o f t h e a l l e g a t i o n s i n v o l v e d i n j u r y t o a c h i l d , C o l t e n . W h i t e a c k n o w l e d g e d t h a t s h e d i d n o t c o n t a c t a p p e l l a n t o n J u l y 2 0 a b o u t t h e f a m i l y - v i o l e n c e i n c i d e n t b e c a u s e t h e c a s e h a d n o t y e t b e e n a s s i g n e d t o h e r .5

night and she did not tell him that she had called the police. Photogra phs from Ray ’s came ra which depicted he r fa ce a fter the incident wer e introduce d into evidence at trial. 4 Appellant testified that he returne d to Ray ’s house on the morning of J uly 20, and she let him

come inside for about 20 minutes to see his children. After he left, he climbed a tree in a n isolated field, wher e he drank alcohol most of the day and tried to g et the coura g e to ha ng himself. He had been using methamphetamines and drinking alcohol and was ag itated and para noid beca use he had

not slept in three day s. He called and text ed Ray throug hout the day , but she did not respond. Ray ’s mother, Donna Ray , testified that appellant called her around 7:00 p.m. and said that he was looking for Ray and his children. Appellant testified that, when he “ra n out of alcohol,” he returne d to Ray ’s house. The door was unlocked, and no one was home. H e we nt inside and took a basket containing marijuana and Ray ’s came ra. He also took Wesley ’s shotgun from his room. He left Ray ’s house, stopped at a g as station to buy more alcohol, and returne d home around 8:00 p.m. Appellant then sawe d off Wesley ’s shotgun “so [appellant] could reach the trig g er a nd still point it at [ his own] head.” He continued

to call and text Ray , asking how their children wer e and what they wer e doing. Ray did not respond. Appellant then decide d he would return to the tree and shoot himself. He testified that he saw Ray drive past his house as he was placing the shotgun in his car . He tried to call her ag ain, but she did

n o t an s we r. He testified, “I thought she was looking for me so I jumped in [m y car ] to chase h er down, flag her dow n so I could ask he r whe re the kids [ wer e].” Appellant testified that he was flashing his lights and driving next to Ray , asking her to roll

T h e r e c o r d c o n t a i n s b l a c k

- a n d

- w h i t e p h o t o c o p i e s o f t h e s e p h o t o g r a p h s , w h i c h a r e l a b e l e d S t a t e ’ s E x h i b i t s 4 9 3 , 9 4 , 9 5 , a n d 9 6

. T h e s e e x h i b i t s a r e o f s u c h q u a l i t y t h a t w e a r e u n a b l e t o p r e c i s e l y d i s c e r n t h e e x t e n t o f R a y ’ s a l l e g e d i n j u r i e s .6

down her window and tell him wher e their children wer e. When they eventua lly stopped, appellant pulled his car next to hers and saw that she was talking on the phone. He testified that he felt “[h] urt and ang ry ” beca

use she had her phone and was not answe ring his calls. Appellant had his window down and was y elling at Ray when he saw a police car behind him with its lights on. At that point, he “stuck the shotgun out the window and pulled the trig g er,” delibera tely aiming for Ray ’s head.
He denied that he shot Ray beca use she called the police. He testified he “lost [hi s] mind” beca use he was ang ry that Ray had not responde d to his calls and text s asking about his children. He testified that he did not know that Wil l o w and Colten wer e in the back seat of Ray ’s car when he shot her beca use her car windows wer e tinted and he did not have a clea r view into the vehicle. As he drove

awa y afte r shoot ing Ray , appellant assumed that she was fata lly wo u n d ed beca use he observe d in his rea rview mirror that her car “starte d rolling forwa rd.” On cross-e x amination, appellant acknow ledg ed that he believed it wa s Ray ’s fa ult that he shot her. He explained tha t Ra y “pushed [hi m] to a limit t o wher e [he] took her life[.] ” The evidenc e showe d that Ray was making a 9-1-1 call when she was shot. Hea ther Doty ,

a dispatcher for the Gre enville Police Depa rtment, testified that she rec eived Ray ’s call around 10:20
p.m. A re co rdi ng of t he call was admitt ed int o evidenc e and play ed for the j ury . During the call, Ray repor ted that her ex-husband was following her down Say le Street, flashing his lights at her and try ing to g et her to pull over, and that she was afr aid that he was g oing to run into her car . She said that she had been “driving around

. . . looking for [her] son” when she saw appellant “in t he neig hborhood,” and he started following her. She explained that appellant had been hara ssing her 5
and t h at s h e had alre ady filed a police repor t ag ainst him when he punched her in the ey e the

W e s l e y t e s t i f

i e d t h a t o n t h e n i g h t o f t h e o f f e n s e , h e h a d l e f

t h i s h o m e t o g o b i k e r i d i n g w i t h f r i e n d s . 57

previous night. She stated, “I told him I was calling the police. So he knows I ’m talking to y a’ll.”
At one point during the call, Ray said that appellant had “cor nere d [her] in” and was y elling, “Where

are the kids.” Doty hear d children in the car , and she told Ray that a police office r was on the way . When Doty

asked Ray

if she saw

an off icer , Ray responde d, “Ye ah, ther e’s lig hts.” Offic er Greg ory Hug hes responded t o the sce ne and pulled up behind t wo vehicles parke d
para llel to eac h other in the north lane on S ay l e S t re et

. Ray ’s car was next to the curb, and appellant’ s car was on her driv er ’s side. Hug hes hear d a g unshot, then appellant drove awa y and Ray ’s car “beg an to roll.” Ray ’s car veer ed to the rig ht and ran into the curb. When Hug hes exit ed his car and approa ched Ray ’s vehicle, he “found a bullet hole throug h the driver’ s window and the driver was shot .” The doors wer e locked, and two small children wer e i n t h e b ac k seat. Another office r who arr ived at the s cene pushed t hroug h the bro ken si de window so they could unl ock the doors. Hug hes testified that Ray was unresponsive and appea red to have “a bullet wound in the head

. ” Ho wa rd Roberson, a passer by who had witnessed appellant driving awa y from the scene , obtained appellant’ s license- plate number and g ave it to Hug hes. Ray died at the scene . The medical examiner testified that Ray ’s cause of death was “a shotgun wound to the head.” The shot e ntere d her le ft che ek and e x ited “on the ba ck of the rig ht [ side of the] head.” Appellant testified that afte r he le ft the scene , he called Ray ’s mother, Donna, and said: “I just shot [R ay ] in the head, she’s dead, y ou shouldn’t have lied to me about my kids.” Appellant also

text ed Homerstea d: “I shot her in head bitch is dead TOL D her not to fuck with my kids.” He called 6
Wil liams and left him a voicemail stating “she’s dead” and, “I shot her in the hea d, which is what

H o m e r s t e a d t e s t i f

i e d t h a t s h e c a l l e d t h e p o l i c e a f t e r r e c e i v i n g a p p e l l a n t ’ s t e x t m e s s a g e . W h e n q u e s t i o n e d 6 b y t h e p r o s e c u t o r , s h e a c k n o w l e d g e d t h a t s h e a l s o t o l d p o l i c e t h a t a p p e l l a n t s a i d , “ I t ’ s t r u e I d i d i t , I ’ m n o t d e a d y e t , g o i n g t o g o , D P S a r e a l l o v e r m e . ”8

I had int ended for y ou.” He added, “I ’ll probably be dead soon. Otherw ise, y ou’re a dead m an.”
He also left Wil liams a second voicemail in which he threa tened Wil liams and his brothers. Donna testified that appe llant called he r ag ain later that night a

nd said, “See , I

told y ou.” Appellant testified that he also called his mother, Croffor d, and told her that he had shot Ray

. I n an interview with I n vestig ator Fe licia Whit e of the Gre enville Police Depa rtment, Croffor d

rec ount ed what appellant told her about what had happene d befor e the shooting. Acc ording to Croffor d, appellant said that Ray told him, “Mica h, I ’m calling the police.” Appellant said that he told Ray , “I

know y ou are ,” and “ I see the police.” Appellant testified that he backe d his car into a g rove of tree s, wher e he hid for a few hours.
He then knocked out his headlig hts and drove on Hig hway 69 until he ran out of g asoline. He went
to a house and asked for g asoline, then he “took off on foot” when that proved unsucce ssful. He put

on a vest and broug ht his flashlig ht, shotgun, ammunition, and pocket knives, which wer e items he thought he neede d to “survive in the wilderne ss.” Offic er Perry Sandl i n t es t i fi ed that appellant’ s abandone d car was located on County Road 1033 at 3:30 o r 4 : 00 a.m. on J uly 21, with an empty shotgu n -s h el l box on the g round near by

. I nvestig ator Whit e testified that Ray ’s came ra, which contained the photogr aphs that Ray took on J uly 19, was rec overe d from the back seat of appellant’ s

car . 7 Appellant testified that he walked along some railroa d trac ks, wher e he lost his cell phone. When he heard helicopters, he g ot into a pond to avoid “being located by the i n fr ar ed

. ” He came
upon a vaca

nt house and hid in it for a while. Eventually , he went “next door” to Cactus Saddlery ,

I n h e r i n t e r v i e w w i t h W h i t e , C r o f f o r d s a i d t h a t a p p e l l a n t t o l d h e r t h a t “ h e h a d [ R a y ’ s ] c a m e r a ” i n h i s v e h i c l e 7

a n d “ w a s l o o k i n g a t t h e p i c t u r e s . ”9

a business loca ted about five to six miles north of Gre enville on Hig hway 69.
Cactus Saddlery employ ee Efra in Girar dot testified that he encounte red appellant outside the building at around 6:00 a.m. on J uly 21. Appellant walked towards Girar dot car ry ing a shotgun and

a knife, and he asked him for water and to use the phone. Girar dot told appellant to put his wea pons down, and appellant laid them on the g round in the parking lot. When they went inside the building, Girar dot offe red appellant wat er an d l et h i m use the phone in his office

. Girar dot testified that appellant called his mother and told her that he was tired and he wanted her to pick him up. Another employ ee, G a

r y M a g e n nis, called the police when Girar dot made him awa re that appellant had a g un. Girar dot went outside with appellant and sat with him wh i l e appellant smoked a cig are tte.
Meanw hile, M age n n i s picked up appellant’ s wea pons and ran towards the SW AT team that had

ar ri v ed at t h e front g ate. Appellant then walked towards the SW AT team with his hands up. He complied when he was told to g et on the g round, and he was ha ndcuff ed and ta ken into custody

. I nvestig ators W hite and J amie Fuller conducted a videot aped interview of appellant at the
Gre enville Police Depa

rtment on J uly 21. Appellant told them that, befor e the offe nse, he had

unsucce ssfully called Ray to ask about his children. He saw Ray drive by his house, so he “jumped
in [hi s] truck and tried to stop her and chase her down,” but “she wouldn’t stop.” He stated, “And, obviously , I could tell she called–w as up with the police on the phone.” When he “fina lly g ot [R ay ]

to pull over,” he asked her to roll down her window and tell him wher e the children wer e. He stated, “[S] he didn’t do it. And I saw the police lights pulling up behind me, so I just–I shot her.” Appellant said that he was ang ry at Ray beca use she planned to m o v e aw ay with the children, allowed Wil liams to stay at her house, and failed to stop Wil liams from fig ht i n g wi t h him and choking him. He ex plained, “There ’s a number of things li ke that that added up,” and “I lost it.”10

Whil e questioning appellant about his actions afte r the shooting, Whit e asked, “Was there any point
in time wher e y ou planned on killing y o u rs el f o r having the cops shoot y ou or shoot at them? ” Appellant answe red that he “wa s g oing to fire, like, a war ning shot just to, I g uess, [commi t] suicide by cop.” Whil e in jail on J uly 22, appellant ag ree d to be interviewe d by a repor ter from a news station
in the Dallas/F ort Worth are a. During the televised interview, appellant admitted that he murdere d Ray beca use he “wa

nted her dead.” He stated that when he was following Ray and try ing to g et her to stop, “she was on the phone” a nd he “f igur ed it was with the police .” He added:
I finally g ot her to pull over, just try ing to convince her, just tell me wher e are my kids, and she never would say . I saw the police and then the lights in my rea rview mirror, so I just pulled the g un -- g un out and shot her

. . . I t was kinda -- it was just spur of the m oment. I alway s told her, y ou know, i f any body ever tries t o come betwee n me and m y k i d s , t h at I would kill someone over that. I didn’t do any thing to deser

ve her not to tell me wher e they are or any thing, and I meant it when I said it. I just got so mad that I did it. When th e re p o rt er as k ed appellant if he knew his children wer e in the back seat, he said that he looked but did not see them. He said, “I would have never done that in front of them.” The repor ter asked, “So y ou reg ret that y ou killed her in front o f y o ur ki ds, but y ou don’t reg ret that y ou killed her[? ]” Appellant answe red, “ No.” Appellant told the repor

ter that “a lot of things built up inside of [hi m] ,” like the fac t that Ray let Wil liams stay with her, she did nothing to stop Wil liams from choking appellant, and she planned

to move awa

y with their children on “Aug ust 1st.” He stated, “ I t just drove me cr azy , I g uess, not being able to see my kids.” When appellant acknowledg ed that he had been suicidal, the reporter asked him why

he fe lt that way . Appellant answ ere d:
I ’ve been suicidal in the past. And t he only two things that, y ou know, I ’m still here is my

kids and they ’re about to be take n awa y from me.11 The other -- the other problem, I want to say was I wanted to g o hunting and she ca lled the police on me sa y ing I was suicidal. And t hey came in the hous e and they found a sawe d off shotgun. So that’s a felony

. So I can’ t -- I wasn’t able to g o hunting a ny more. Any way s, I can’ t be ar ound my kids. I can’ t do -- I mean, the two things -- the re ason I

was stripped a

way from me a

nd -- The re porter la

ter a sked appe llant, “I s there a ny thing e lse y ou want to say ? ” Appe llant added: And then, like I

said, I g uess I just -- I went crazy

. I couldn’t stand the f act of, y ou know, only being able to see my kids four day s a month. And [I ] just don’ t know how it went from calling the cops on me and this and that from she was g oing to take me with her

if she found - - whe n she found a job and moved off

. Appellant also descr ibed his involvement in the offe nse and demonstrated a lack of remorse in a letter he wrote to a fellow jai l i n m ate. Appellant testified that “Casper ” was an inmate in a neig hboring cell who asked him what happene d. I n the letter, appellant rec ited in part that Ray was moving awa

y , that she let Wil liams move in, that he and Wil liams foug ht, that he felt suicidal, and that Ray stopped answe ring his calls. Wit h reg ard to the instant off ense, he explained:
I chase d her down and made her pull over. She wouldn’t look at me and she was on the phone. I knew it was the cops and for some rea son when I saw the red and blues behind me I put the shot g un [si c] out the window and blew her head off. Clean off.
He stated in the letter, “I still don’t reg ret it one bit.” He added, “To be honest, I would do the same
to [W illiams] if I had the chanc e.” Appellant also instructed Casper to “flush” the letter afte r rea ding it.
At the punishment phase of his trial, appellant prese nted evidenc e that he had a history of using alcohol and drug s, includin g marijuana , coca ine, methamphetamines, and “pain pills.” He

once lost a job d u e t o a failed drug test, and he continued to use drug s afte r participa ting in reha bilitation prog rams. His pare nts divorce d when he was y oung , and his mother later marrie d an emotionally abu s i v e man who sexually abused appellant’ s sister. Appellant repor ted that he was12

sexually molested by his stepbrother at ag e 12. He had been suicidal at times, and he repor ted a family history of substance abuse, de pression, and a nx iety

. Def ense expert Dr. Paula L undberg -L ove testified that sleep depriva tion and drug use could lead a person to act impulsi vely without thinking of the conseque nces of his actions. She opined that “the duration of [appellant’s] drug -taking co m promised the ability of his brain to work in a functional manner .” She noted that appellant “did not commit violent behavior befor e he was taking

m et h am p h etamine and coca ine,” and there was a lower probability that he would be violent i f h e

wer e no long er ta king those drug s. Def ense expert Dr. Mark Cunningha m also testified that appellant had a history of drug use and impulsi ve behavior

. As a child, appellant was socially immature and had a n inability

to f ocus in the classroom. Cunningha m testified that these behavior s wer e “consistent with attention defic it hy pera ctivity disorder of

the non-hy

pera ctive ty

pe.” Cunning ham opined that “the re is a ve ry low likelihood that [appellant] would exhibit serious violence [i f] confined for life in the Texas pr ison
sy stem.” Appellant also prese nted the testimony of Morris Be ene and J ason Hammock, two minist ers who had been visiti ng him in jail. They both te stified that they believed a

ppellant fe lt remorse for killing Ray

. Howeve r, on cross-e x amination, they wer e both surprised to hear from the prosec utor that appellant testified he believed it was Ray ’s fault that he killed her. Hunt County Sheriff Randy Meeks and other sheriff

’s depar tment employ ees testified that appellant behave d well in jail and was a model inmate. Me eks ac knowledg ed that appe llant had an incentive to beha ve, wa s housed in a single cell by himself most of the tim e, and had extra secur ity measure s to ensure his safe ty

. On rebuttal, the State play ed a clip from a rec orded phone conver sation while appellant was in jail. I n13

the clip, appellant said jail was like “Starbuc ks” beca use y ou could “drink coff ee and rea d all day .”
SUFF I CI ENCY OF THE EVI DENCE
I n point of err or six , appellant claims that the evidenc e is le g ally insufficient to support his conviction. When revie wing the sufficie ncy of the evidenc e, we consider all of the evidenc e in the light most favor able to the verdic t to deter mine whether , based on that evidenc e and the rea sonable infere nces there from, a ju ry wa s ra t ionally justified in finding g uilt bey ond a rea sonable doubt. Jack son v. Virginia , 443 U.S. 307, 318-19 (1979); Brooks v. State , 323 S.W .3d 893, 899 (Tex. Crim. App. 2010). This standar d “g ives full play to the responsibility

of the trier of fac t f

airly to r esolve conflicts in the testimony , to weig h the evidenc e, and to draw rea sonable infere nces from basic fac ts to ultim ate f

acts.” Jack

son , 443 U.S. at 319. The char g e authorized the jury to convict appellant of capital murder if it found that he
i n t en t ionally murdere d Ray in the course of committing or attempting to commit obstructio n o r
reta liation, or terror istic threa t. See T E X
. P E N A L C O D E § 19.03(a) (2). Wit h reg ard to the offe nse of obstruction or re taliation, Section 36.06 of the Texas Penal Code provide s: (a) A person commits an offe nse if he intentionally or knowing ly harms or threa tens to harm anothe r by

an unlawf

ul act: (1) in re taliation for or on a ccount of the servic e or status of a

nother a s a: (A) public se rvant, witness, prospe ctive witness, or infor mant; or (B ) person who has repor

ted or who the actor knows intends to repor t the occ urre nce of

a cr ime; or (2) to pre vent or de lay

the servic e of a

nother a s a: (A) public se rvant, witness, prospe ctive witness, or infor mant; or (B ) person who has repor

ted or who the actor knows intends to repor t the occ urre nce of

a cr ime.14

T E X
. P E N A L C O D E § 36.06 (a)

. Appellant claims that the evidenc e was i n s u ff i ci ent to prove the underly ing offe nse of obstruction or reta liation. Appellant admits that he intentionally shot and killed Ray , but he disputes the rea son why he did it. He contends that “ther e are other possible and more probable rea sons why [he] killed his ex-wife.” For example, he was upset and ang ry that she: was moving awa y with his children; let Wil liams move in with her; did not intervene when Wil liams “choke [d] him out in front of his kids”; “re cently ref used to let him see his kids”; and ref used to let him k n o w wher e his children wer e on the day that he shot her. He contends that due to a “combination of these fac tors,” he “just lost it” and made a “spur of the moment” dec ision to shoot Ray

. Appellant was awa

re that Ray called t h e p o l ice on J uly 16 when he threa tened to commit suicide, which led to his arr est for possession of a prohibited wea pon. He told Homerstea d that Ray had him arr ested beca

use she thought he was suicidal. Appellant co n t en d s t hat “the evidenc e demonstrated that he harbor ed no animus ag ainst [R ay ] for her role in his arr est for possession of a prohibited wea

pon.” Howeve r, he complained to the reporter in the televised news inter view that he “wa sn’t able to g o hunting any more” beca

use the police came to his house in r esponse to Ra y ’s call and “ found a sa

wed of f shotg un.” Appellant claims that he did not know Ray calle d t h e police to repor t the family violence incident that occur

red on J uly 19. Howeve r, he acknow ledg ed that he to ok her came ra, which contained photogr aphs of her fac e following that incident. And appellant admittedly knew that Ray

was calling the police when he was chasing her in his car on J uly 20. Ray repor ted to the dispatcher that appellant was following her and hara ssing her, that she was afr aid he was g oing to run into her

car , and that at one point he “cornere d [her] in.” Ray also informed the dispatcher that appellant15

knew she was calling the police. I n his phone conver sation with Croffor d, his interview with Whit e

an d Fu l l er , his interview with a television news repor ter, and his letter to “Casper ,” appellant confirme d that he knew Ray called the police. He also admitted that he saw a police office r pulling
up behind him befor e he shot Ray

. The jury could have rationally conclude d based on this evidenc e that appellant murde red Ray in reta liation for calling the police on J uly 20, or t o preve nt her f rom
say ing a ny thing f urther to police about the eve nts that transpired on or befor e Jul y

20.
A lthoug h there may have been sever al rea sons why appellant wanted to kill Ray , the evid e n c e viewed in the light most favor able to the verdic t was sufficie nt for the jury to rationally conclude that appellant intentionally murdere d Ray i n the course of committing or attempting to commit obstruction or re taliation. Point of error six is overruled. 8
I n point of err or three , appellant asser ts that the evidenc e is leg ally insufficient to support the jury ’s aff irmative answe r to the future- dang erousne ss specia l issue. Appellant arg ues that he does not pose a futur e dang er to soc iety beca use there is “ no evidenc e that [he] prepla nned the murde r”

an d h e “o n l y s h o t his g un [at the victim] once.” He contends that he has no prior convictions or history of violence and that he “has repe atedly ex presse d sincere remorse ” for his actions. He emphasizes Cunningha m’s testimony that there is a very low likelihood that he will commit serious violence if he is confine d in prison for life. He a lso adds t hat charac ter witnesses testified t hat he

was a g ood fathe r and that he counsele d others while in prison and develope d a “since re rela tionship with the L ord.”

A p p e l l a n t a l s o c l a i m s t h a t t h e e v i d e n c e w a s i n s u f f i c i e n t t o p r o v e t e r r o r i s t i c t h r e a t , b u t w e n e e d n o t a d d r e s s 8 t h a t i s s u e s i n c e w e h o l d t h a t t h e e v i d e n c e w a s s u f f i c i e n t t o p r o v e t h e u n d e r l y i n g o f f e n s e o f o b s t r u c t i o n o r r e t a l i a t i o n . S e e C a r d e n a s v
. S t a t e , 3 0 S

. W

. 3 d 3 8 4 , 3 9 1 ( T e x . C r i m . A p p . 2 0 0 0 ) ( p r o o f o f o n l y o n e o f t h e u n d e r l y i n g f e l o n i e s i s r e q u i r e d t o s u p p o r t a d e f e n d a n t ’ s c o n v i c t i o n )

.16

When revie wing the leg al sufficie ncy of the evidenc e to support the jury ’s answe r to t he future- dang erousne ss spe cial issue, we view the evidenc e in the light most favor able to the verdic t and deter mine whether any rational trier of fac t could have believed bey ond a rea sonable doubt there is a probability that the defendant would commit criminal acts of vi olence that would constitute a continuing threa t t o s o ci et y . W illiams v. State , 273 S.W .3d 200, 213 (Tex. Crim. App. 2008); Jack son , 443 U.S. at 319. I n its deter mination of t his specia l issue, the jury is entitled to consider all of the evidenc e admitted at both t h e g uilt and punishment phases of trial. Y oung v. State , 283
S.W .3d 854, 863 (Tex. Crim. App. 2009). The jury may consider a v ar i et y of fac tors when deter mining whether a defe ndant will pose a continuing t h rea t to society

. Keeton v. State , 724
S.W .2d 58, 61 (Tex. Crim. App. 1987). The circ umstances of the offe nse and the events surrounding it may be sufficie nt to sustain an aff irmative answe r to this specia l issue. Dev oe v. State , 354 S.W .3d 457, 462 (Tex. Crim. App. 2011); King v. State , 953 S.W .2d 266, 272 (Tex. Crim. App. 1997). The evidence shows that appellant ha d an esc alating pattern of violence and di srespe ct for the law prior to killing Ray

. See Jack son v. St a t e , 33 S.W .3d 828, 838 (Tex. Crim. App. 2000) (J o h n s o n , J

. , concur

ring , citing King v. State , 953 S.W .2d 266, 271) (an esca lating pattern of disrespec t for the law supports a fi nding of future dang erousne ss). I n the day s leading up to the murder, a ppellant g ot into phy sical altercations wit h both Wil liams and R ay . He admitted that he

sawe d off his shotgun beca use he planned “to g o back an d g et [W illiams] with it.” When police confiscated that g un, appellant stole Wesley ’s shotgun and sawe d it off. He also stole Ray ’s came ra, which contained photogr aphic evidenc e of their phy sical alterc ation on J uly 19. He chase d Ray in his car , forc ed her to pull over, and “blew her head off” with Wesley ’s shotgun while their two small children wer e in the back seat of Ray ’s car . He intentionally killed Ray despite knowing that she had17

called the police and seeing a police car behind him. After committing this crime, hefle d the scene and attempted to evade captur e by the police

. See Smith v. State , 74 S.W .3d 868, 872 (Tex. Crim. App. 2002) (suc h actions re flec t a disreg ard f or the lives of pur suers a

nd innocent by standers)

. Appellant also demonstrated a lack of remorse for murdering Ray

. See Rachal v. State , 917
S.W .2d 799, 806 (Tex. Crim. App. 1 9 9 6 ) (l ack of remorse as a fac tor in deter mining future dang erousne ss); Trevino v. State , 991 S.W .2d 849, 854 (Tex. Crim. App

. 1 9 9 9 ) (future dang erousne ss can be inferr ed from evidenc e showing a lack of remorse ). Shortly afte r committing the offe nse, appellant called Wil liams and Donna to brag and taunt them about killing Ray

. He left Wil liams voicemails threa tening to kill him and his brothers. He also sent Homerstea d a text brag g ing that he “shot [R ay ] i n [ t he] head” and the “bitch is dead.” He later aff irmed to both a television news repor

ter and fellow inmate Casper that he did not reg ret killing Ray

. He expressed a continued de sire to kill Wil liams in his letter to Casper. H e also c ontinued to blame Ray for he r own dea th when he te stified at trial. Appellant points out that he has display ed g ood behavior while incar cer ated. Whil e g ood behavior in prison is a fac tor to consider, i t d o es not prec lude a finding of future dang erousne ss. De vo e, 3 5 4 S.W .3d at 468. The evidenc e, viewed in the light most favor able to the verdic t, wa s sufficie nt to support the jury ’s aff irmative answe r to the future dang erousne ss spe cial issue. Point of er ror thre e is overr

uled.
ADMI SSI ON OF L ETTER
I n point of err or four, appellant contends that the trial court abused its discretion in admitting into evidenc e State’s Ex hibit 86, the letter that appellant wrote to fellow inmate Casper. Appellant
arg ues that t he letter was not properly authentica ted—and ther efor e wa s inadmissibl e—bec ause it18

“wa s not found near [hi m] or in his possession,” it “did not contain any signa ture or other ref ere nce to its author,” and ther e wa s no evidenc e that his fing erpr ints were f ound on it. The admissibili ty of evidenc e is a preliminary question to be decide d by the trial court. Tex. R. Evid. 104(a). Rele vant evidenc e is g ener ally admissible at trial. Tex. R. Evid. 402. However , evidenc e has no rele vance if it is not authentica lly what its proponent claims it to be. Tienda v. State , 358 S.W .3d 633, 638 (Tex. Crim. App. 2012). At the time of the offe nse, Texas Rule of Evidence 901(a) stated that “authe ntication

. . . as a condition prec edent to admissibili ty of evidenc e that require s the proponent to make a threshold showing that is satisfied by evidenc e sufficie nt to support

a finding that the matter in question is what its proponent claims.” Id ; Tex. R. Evid. 901(a) (1998). Whether the proponent has crosse d this threshold as require d by Rule 901 is one of the preliminary questions of admissibili ty contemplated by Rule 104(a)

. Tienda , 358 S.W .3d at 638, citing Druery v. State , 225 S.W .3d 491, 502 (Tex. Crim. App. 2007). The trial cou rt s h o u l d admit proff ere d evidenc e “upon, or subject to the introduction of evidenc e sufficie nt to support a finding of” authenticity

. Id. The trial court need not be persua ded that the proffere d evidenc e is authentic. Id. The preliminary question for the trial court to dec ide is simply whether the proponent of t he evidence has supplied fac ts that are suffici en t t o s upport a deter mination by a reasonable jury that the proffere d evidenc e is authentic

. Id

. Evidence may be authentica ted in a n u m b er of way s, including by direc t testimony from a witness with persona l knowledg e, by

compar ison with other authentica ted evidenc e, or by

circ umstantial evidence

. Id.
A t rial court’s ruling o n t h e p reliminary question of admiss ibilit y is subject t o an abuse of discretion standa

rd of r eview. Id. We will affirm the trial c ourt’s dec ision as long a s the ruling is within the zone of rea sonable disag ree ment. Druery , 225 S.W .3d at 502.19

The State introduced the letter during the testimony of I nvestig ator Fe licia Whit e. On direc t examination by

the prosec utor, Whit e testified: Q. Did y ou also rec eive a copy of a le tter fr om the jail relate d to the Def endant?
A. I did. Q. How did y ou rec eive this copy ?
A. I believe I

g ot it from Tommy

Gra ndfield, and I

-- they had g ot it from an inmate or something

. [9 ] Q. I s it routine for the she riff’ s depar tment to bring y ou copies of thing s that they find over in someone ’s ce ll if they think they ’re rela ted to y our ca se?
A. Correc t.

* * * Q. Did y ou revie w the docume nt to see if it contained f acts or de tails about this case tha t y ou -- that would have bee n known to the Def endant?
A. Yes. Q. And did y ou find some?
A. I did. Def ense c ounsel then objec ted that there was not “ a proper predic ate” for the admission of the letter. The prosec utor asked Whit e if the letter contained specific details which led her to believe that appellant wa s t h e au t h or, and Whit e replied that it did. Whit e acknow ledg ed that the letter ref err ed to Trac y Wil liams and included spe cific de tails about the crime a nd esca pe. On voi r di re examination by defe nse counsel, Whit e ag ree d that she did not have persona l knowledg e of who

T h e p r o s e c u t o r d i d n o t a s k , n o r d i d W h i t e e x p l a i n , w h o T o m m y G r a n d f i e l d w a s . H o w e v e r , o n v o i r d i r e 9

e x a m i n a t i o n b y d e f

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

f ’ s o f f i c e . ”20

wrote the letter, but she a dded, “I think Iknow who.”
On d i re ct examination by the prosecutor, W hite listed the s pecif ic details contained in th e letter that would ha ve bee n known to appellant: Q. Contained within this document, did y ou find specif ic re fer ence s to Trac y Wil liams?
A. Yes. Q. Did y ou also find spec ific re fer ence s to Trac y Wil liams moving to Shrevepor

t?
A. Yes.

* * * Q. And in the letter y ou found a r efe renc e to a 3- y ear -old son?
A. Correc t. Q. Did y ou also find [a] refer ence to the ex-wife moving to Kilgor e?
A. Yes. Q. Did y ou also find [a] ref ere nce or statements in here believing [si c] tha t not only was the ex-wife moving to Kilgor e but that she was looking for a job for Trac y in Kilgor e?
A. Correc t. Q. Did y ou find a -- ref ere nces to whe ther or not the individual who wrote this had slept for

sever al day s?
A. Yea

h. Q. Did the individual who wrote this also say that he had be en choke d out by Trac y ?
A. Uh-huh. Tha t’s corr ect. Rig ht here (indicating ), and he was whipped in front of

his kids. Q. Did the individual who wrote this spec ifically addre ss taking a21

shotgun, c hasing Stella, and blowing her he ad off ?
A. Yes. Following Whit e’s testimony , the trial court admitted the letter into evidenc e. When appellant later testified at trial, he admitted that he wr ote the letter

. The trial court did not abuse its discretion in admitting the letter. Whit e supplied fac ts tha t

wer e sufficient to support a determination by a reasonable jury that appe l l an t wrote the letter. As the State points out in its brief, the letter contain ed d et ai ls that appellant did not disclose in his televised news interview. For example, appellant mentioned Ray ’s ex-husband in the interview, but
h e d i d n o t i dentify him by name. And appellant mentioned in the interview that Ray planned t o move, but he did not state t hat she planne d to move to Kilgor e with Will iams. I n light of White’s testimony , the trial court’s admission of the letter was within the zone of rea sonable disag ree ment. See D ruery , 225 S.W .3d at 502. Point of error four is over

ruled.
ADMI SSI ON OF PHOTOGRAPHS
I n point of err or five, appellant complains that the trial court err ed in admitting into evidenc e three autopsy photogr aphs labeled State’s Ex hibits 263, 268, and 269. Appellant arg ues that these photogr aphs we re inadmissible beca use their prejudicia l nature substantially outweig hed their probative va lue. T E X
. R. E V I D
. 403. The a dmissibi lity

of a photog raph is within the sound discre tion of the trial judg e. Y oung, 283 S.W .3d at 875. The trial court’s decision may be disturbed on appea l only when it falls outside the zone of rea sonable disag ree ment. Id. at 874. When deter mining whether the trial court err ed in admittin g rele vant photogr aphs into evidenc e, our revie w is limit ed to deter mining whether the probative value of the photogr aphs is substant i al ly outweig hed by the dang er of unfair prejudice ,22

confusion of the issues, or misleading the jury , or b y co n s i d er ati ons of undue delay or needle ss
p rese ntation of cumulative evidenc e. Id.; T E X
. R. E V I D
. 403. A court may consider many fac tors in deter mining whether the probative value of photogr aphs is substantially outweig hed by the dang er of unfair prejudice

. Id. These fac tors include: the number of exhibi ts offe red, their g ruesomene ss, their detail, their siz e, whether they are in color or black and white, whether they are close-up, and whether the body depicted is c lothed or naked. Id. Autopsy photogr aphs are g ener ally admissible

u n l es s t h ey d epict mutilation of the victim cause d by the autopsy itself. W illiams v. State , 3 0 1
S.W .3d 675, 690 (Tex. Crim. App. 2009). Medica l examiner Chester Gwin testified that multipl e photogr aphs wer e taken during Ray ’s autopsy

. Gwin chose five of twenty photogr ap h s t h at h e b elieved wer e nece ssary to explain the injuries descr ibed in his autopsy finding s. When the State offe red these photogr aphs into evidenc e, 1 0
defe nse counsel objected that State’s Ex h i b i t s 2 6 3, 268, and 269 wer e “inflammatory ” and
“unne ce s s ar y t o deter

mine whether or not this lady is dead.” The trial court admitted the photogr aphs over

defe nse counse l’s objection. The exhibi ts at issue are display ed in the appellate rec ord as 8 x 10 inches and black- and-w hite. State’s Ex hibit 263 is a close-up photogr aph which depicts the shotgun entra nce wound on Ray ’s left chee k. As Gwin testified, it shows “some radia ting lace rations that come out from that wound,” an d s everal “red punctate abrasions,” or “pseudo- stippli ng ,” on the l eft side of Ray ’s fac e. Gwin testified that this photogr aph was “consistent with the story ” that the shot trave led throug h the driver’ s side window, shattere d the g lass, and cau s ed gl as s fra g ments to become

S t a t e ’ s E x h i b i t s 2 6 3 , 2 6 8 , 2 6 9 , 2 7 8 , a n d 2 8 0 w e r e a d m i t t e d i n t o e v i d e n c e b e f o r e t h e j u r y . T h e r e m a i n i n g 1 0

a u t o p s y p h o t o g r a p h s w e r e a d m i t t e d f o r a p p e l l a t e p u r p o s e s o n l y , w i t h o u t o b j e c t i o n . A p p e l l a n t d o e s n o t c o m p l a i n a b o u t t h e a d m i s s i o n o f S t a t e ’ s E x h i b i t s 2 7 8 a n d 2 8 0 o n d i r e c t a p p e a l

.23

“sec ondary

projec tiles” which c aused “ punctate a brasions on the skin.”
State’s Ex hibit 268 is a close-up photogr aph which depict s t h e ex it wound on the back of Ray ’s head. State’s Ex hibit 269 is a close-up photogr aph which, as Gwin testified, depicts a “broa d

are a of pse udo-stippling” on Ra y ’s upper left ar m and shoulder. The exhibi ts at issue portray no more than the g ruesomene ss of the injuries inflicted by appellant. S

ee Narvaiz v. Stat e , 840 S.W .2d 415, 429-30 (Tex

. Crim. App. 1992). The probative value of this evidenc e is not substantially outweig hed by the dang er of unfair prejudice

. See id. The trial court’s decision to admit this evidenc e was within the zone of rea sonable disag ree ment and was not an abuse of discre tion. Poi nt of err or five is ove rruled.
MI TI GATI

NG EVI DENCE
I n point of err or one, appellant asser ts that the State’s closing argu m en t at punishment “depr ived appellant of a vehicle to permit the jury to g ive a rea soned moral response to appellant’ s mitigation evidenc e.” I

n point of err or two, appellant arg ues that “the trial court’ s char g e couple d with the prosec ution’s punishment phase jury arg uments impro p er l y require d a nexus betwee n appellant’ s miti g ating evidenc e and the criminal ac t for which he was c onvicted.” Reg arding the punishment char g e, appellant specific ally complains about the following jury instruction: “I n delibera ting on Special I ssue Number 2 y ou shall consider mitig ating evidenc e to be evidenc e th at a j u ror might reg ard as reduc ing the defe ndant’s moral blamewor thiness.” Appellant contends that this statutory definition of mitigating evidenc e improperly require s a nexus betwee n the crime and the mitigating evidenc e. We have p re v i ously held that we do not see any “nexus” require ment in the statutory definition of mitigating evidenc e. Coble v. State , 330 S.W .3d 253, 296 (Tex. Crim. App. 2010). Fur ther, we have he ld that it is not rea sonably likely that a jury24

would infer a

nexus requirement fr om the statutory lang uag e. Id.
I n o rd er t o assess the death penalty , the jury must be provided a vehicle by which to full y consider and g ive eff

ect to mitigating evidenc e. Ex parte Smith , 309 S.W .3d 53 55 (Tex. Crim. App. 2010). Appellant asser

ts that a jury may be improperly prec luded from g iving full consideration and eff ect to a d ef

endant’ s mitigating evidenc e “not only as a result of the i nstructions g iven, but also

as a result of prosec utori al ar gu m en t dictating that such consideration is forbidden.” See AbdulKabir v. Quarterman , 550 U.S. 233, 25 9 n .21 (2007). Her e, appellant contends that “the
prosec utor’s cont i n u o u s and impermissible rema rks ere cted a barr ier to full consideration of mitigating proof a

bout [ a]ppellant’s bac kg round.” Permissible jury arg ument g ener ally falls into one of fou r are as: (1) a summation of the evidenc e; (2) a rea sonable deduction from the evidenc e; (3) an answe r to the arg ument of opposing counsel; or (4) a plea for law enfor ceme nt. Brown v. State , 270 S.W .3d 564, 570 (Tex. Crim. App. 2008). I mproper jur

y arg ument will not constit ute re versible e rror unless, in light of the r ecor d as

a whole, the arg ument is extreme or manifestly improper, violates a mandatory statute, or injects into the trial proce eding new fac ts harmful to the acc used. W esbrook v. State , 29 S.W .3d 103, 115 (Tex. Crim. App. 2000). The rema rks must have been a willful and calc ulated eff ort on the part of the
State to deprive appellant of a fair and impartial trial. Id. I n m o s t i n s t an ce s , an instruction to disreg ard the rema

rks will cure the er

ror. Id. During his closing arg ument, the prosec utor explained to the jury that “Specia l I ssue No. 2” asks “whether taking into considera tion all of t he evidence .

. . including the circumstances of the offe nse, the Def

endant’ s char acte r and backg round and the persona l moral culpability of the Def endant, there is a sufficie nt mitigating circ umstance or circ umstances to war rant that a sentenc e25

of life imprisonment rathe r than a death sentenc e be imposed.” Appellant first cha l l eng es the following portion o f t h e prosec utor’s arg ument, in which he discussed appellant’ s char acte r and backg round: The business about the fam i l y tree , I ’m sorry , y ou decide this but y ou take t h at family tree and y ou just take a dry era ser and y ou era se ever y name from t h at family tree and then plug in whoeve r y ou want. Plug in any body ’s family

. You plug in y our own family perha

ps. There is not one among us who within our family don’t have the alcoholics, don’t have the individuals who have bad marria g es, possibly have been married severa l times, possibly abuse within t he fa mily , possibly sexual abuse within the family

. There is nothing -- it’s sad, don’t g et me wrong , it is a sad aff air that occur s to any family

. But there’s nothing specia l about i t insofar as that it was sufficie nt to cause the Def endant to commit this offe nse. I t’s not sufficie nt to prove that he’s not a future dang er and it’s not sufficie nt as a mitigating circ umstance to justi fy life without parole. I t’s just not.

* * *
I want y o u to think about that car efully

. Sufficient is a key word and the rea son it’s key is beca

use it has to be sufficie nt. I t can’ t just be mitigating

. I t has to be suff icient mitigating evidenc e. There ’s -- if y ou g o throug h the last one on Special I ssue No. 2, the persona l, moral culpability of the Def endant. And that is hug e . . . The persona l

. . . not all the family tree , not ever

y thing else, the personal moral culpabilit y or bl amewor

thiness of t he Defenda

nt. And can y ou think of any offe nse that is any more blameworthy on this Def

en d an t t h an this offe nse[? ] He intended to kill Stella. He wanted her dead. Appellant, howeve r, failed to prese rve err or with reg ard to this portion of the prosec utor’s arg ument beca use he f ailed to object to it. T E X
. R. A P P
. P. 33.1. The prosec utor later stated that there was “a laundry list” of fac tors that wer e ag g rava ting as opposed to mitigating , including a ppellant’s letter

to Casper, the f

act that he had “e x tra a mmo . . . when he was running from the police,” his plan to commit “suicide by cop,” and the fac t that he used Wesley ’s g un to kill R ay . The prose cutor then f ocused on a

ppellant’s drug use: T h e d rug use -- and I want to mention the drug use. Drug use is n o t26

mitigating

. You hear d a ton of ev i d en ce ab o ut testimony that it was tied into a mitigating fac tor -- [DEFENSE COUNSEL ]: Your Honor, I ’m go i n g to object. He is say ing drug use is not mitigation. He cannot tell this jury what is or is not mitigation. That is an err or. I t is for the jury to decide in their

mind what is or is not mi tiga tion and he ca nnot tell them what it is. THE COURT: Sustained. [DEFENSE COUNSEL ]: I ’d ask for an instruction to the jury , Your Honor.
THE COURT: All rig ht. The jury will be instructed that y ou and y ou alone decide what is mitigating or ag g rava ting in this case

. Def ense c ounsel also moved for a mistrial, which the tria l court denie d. Appellant prese nted evidenc e of his drug use as a mitigating fac tor throug h the testimony of defe n s e ex p ert witnesses L undberg -L ove and Cunningha m. The prosec utor arg ued that the jury should instead view appe llant’s drug use as a n ag g rava ting f

actor

. “[N]either the state nor f eder al constitution require s that cer tain evidenc e be labeled as mitigating , nor does it require what weig ht,
if any , should be g iven to evidenc e that is found to be mitigating .” Cantu v. State , 939 S.W .2d 627,
640 (Tex. Crim. App. 1997). Her e, the trial court sustained appellant’ s objection and reminded the jury that it alone would decide whether the evidenc e was or was n o t aggr av at i ng or mitigating

. 1 1
Howeve r, even if we as s u me err or, the trial court’s instruction was sufficie nt to cure it. See
W esbrook , 29 S.W .3d at 115. Appellant next complains about the rebuttal portion of the prosec utor’s closing arg ument, which occur

red afte r defe nse counsel asked the jury to “re nder the deeds of merc y ” to appellant when

N o t a b l y , t h e p r o s e c u t o r s a i d i n h e r o p e n i n g s t a t e m e n t a t p u n i s h m e n t : “ W e c a n ’ t t e l l y o u w h a t ’ s m i t i g a t i n g 1 1

a n d a g g r a v a t i n g , r i g h t ? Y o u g u y s a r e g o i n g t o d e c i d e t h a t f o r y o u r s e l v e s . I e x p e c t y o u ’ r e g o i n g t o h e a r a l o t o f t e s t i m o n y a b o u t d r u g s d u r i n g t h i s t r i a l

. ”27

deciding the specia l issues. The prosec utor responde d that “mer cy i s g iven by God to those who show true repentanc e,” and t hat appellant had not done so. Th e p ro s ecutor stated t hat appellant’s murder of Ray was “ a true ref

lection of lac k of merc y ,” and the n continued: [P ROSECUTOR] : Who do we g ive life without parole to in a capital murder case ? A def

endant who thr ows himself at the mer cy of the jury

. [DEFENSE COUNS E L ]: O b je c tion, Your Honor, that is not the standard and she is misstating the law. [P ROSECUTOR] : Your Honor, she ar g ued who should a nd should not g et it [ and] I think I should be able to a rg ue ag ainst it.
THE COURT: Over

ruled. [P ROSECUTOR] : A defe ndant throws himself on his fac e in front of the jury and said I did it all, forg ive me. I t’s my fault. [DEFENSE COUNSEL ]: Objection, Your Honor, that is not the standard. The standa

rd is the two spec ial issues. That is how y ou decide

. THE COURT: L adies and g entlemen of the jury , y ou are the ones that decide the issues. And ag ain, whate ver the attorney s say is not evidence . I t’s arg ument. The prosec utor’s arg

ument about merc y was a permissible answe r to the arg ument of opposing coun s el

. De fe nse counsel pleade d for the jury ’s merc y in closing arg ument, and the
prosec utor proper ly

arg ued ag ainst it. Finally , appellant complains about the following statements made by the prosec utor toward the end of closing arg ument: So as y o u go back in the jury room and y ou delibera te, ask y ourselves a couple of questions. One of them, any wher e in this jury char g e does it say do I fee l sorry for the Def

endant[? ] I s that one of the questions we’ re asking y ou? Does it say any wh er e i n t here that sy

mpathy for the Def

endant is part of y our deliberations? I mean, I ’m asking y ou. I t doesn’t say t hat in the char g e. I t say s holding him responsible or it sa

y s considering his actions is important, considering what he did, considering the circ umstances of the offe nse, considering the eff ects of what he’s done, those a

re a ll in that charg e. And that’ s what we ’re asking y ou to do.28 I f y ou g uy s follow the law, this answe r will n ot be easy beca use it’s not an easy question. I t will not be easy

. Be cause appellant failed to object to this portion of the prosec utor’s arg ument, he has forf

eited his rig ht to complain about it on appea l. T E X
. R

. A P P
. P

. 3 3

. 1

. Howeve r, we note that evidenc e that depends on mere sy

mpathy or an em o t i o n al response should not be considere d in the jury ’s deter mination of the defe ndant’s deathwor thiness. Hernande

z v. State , 390 S.W .3d 310, 324 (Tex. Crim. App. 2012), cert. de nied , 134 S. Ct . 823 (2013). When mitigating evidenc e is prese nted, all that is constitutionally require d is a v eh i cl e by wh i ch the jury can consider and g ive eff ect to the mitigating evidenc e rele vant to a defe ndant’ s backg round, cha

rac ter, or the circ umstances of the cr ime. Cantu , 939 S.W .2d at 641. Neither the trial court’s instructions nor the prosec utor’s ar g uments deprived the jury of a ve hicle by which to consider and g ive eff

ect to the mitigating evidenc e, nor did they require a nexus betwee n the crime and the mitiga

ting e vidence . Points of er ror one and two ar e over

ruled. We affir m the judgme nt of the trial cour t.

Deliver ed: September

16, 2015 Do not publish