ORAL ARGUMENT IS REQUESTED 

No. AP-77,030 

IN THE

COURT OF CRIMINAL APPEALS 

OF TEXAS 

 

MATTHEW LEE JOHNSON, 

 APPELLANT 

V. 

THE STATE OF TEXAS, 

 APPELLEE 

 

On appeal from the 363rd Judicial District Court of Dallas County, Texas 

In Cause No. F12-23749 

 

STATE’S BRIEF 

 

 Counsel of Record:

Craig Watkins Christine Womble 

Criminal District Attorney Assistant District Attorney

Dallas County, Texas State Bar No. 24035991 

 Frank Crowley Courts Building 

 133 N. Riverfront Blvd., LB-19 

 Dallas, Texas 75207-4399 

 (214) 653-3625 

 (214) 653-3643 fax 

 CWomble@dallascounty.org 

Attorneys for the State of Texas

COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS

Transmitted 12/29/2014 9:08:43 PM

Accepted 1/13/2015 9:18:15 AM

ABEL ACOSTA

CLERK
ii

TABLE OF CONTENTS

Index of Authorities ................................................................................................... v 

Statement Regarding Oral Argument ....................................................................... 1 

Statement of the Case ................................................................................................ 1 

Statement of Facts ...................................................................................................... 1 

Summary of the Arguments ..................................................................................... 47 

Argument ................................................................................................................. 50 

State’s Response to Issue Nos. 1 through 7: ............................................................ 50 

THE TRIAL COURT DID NOT ERR IN DENYING APPELLANT’S BATSON 

CHALLENGES. 

State’s Response to Issue Nos. 8 through 19: .......................................................... 71 

THE TRIAL COURT DID NOT ERR IN GRANTING THE STATE’S CHALLENGES 

FOR CAUSE. 

State’s Response to Issue Nos. 20 through 27: ........................................................ 86 

THE TRIAL COURT DID NOT ERR IN DENYING APPELLANT’S CHALLENGES 

FOR CAUSE. 

State’s Response to Issue Nos. 28 through 30: ...................................................... 113 

THE TRIAL COURT DID NOT ERR IN GRANTING THE STATE’S CHALLENGES 

FOR CAUSE. 

State’s Response to Issue Nos. 31 and 32: ............................................................ 119 

APPELLANT WAS NOT DEPRIVED OF A LAWFULLY CONSTITUTED JURY. 
iii

State’s Response to Issue No. 33: .......................................................................... 120 

THE EVIDENCE IS LEGALLY SUFFICIENT TO SUPPORT APPELLANT’S 

CONVICTION FOR CAPITAL MURDER. 

State’s Response to Issue Nos. 34 and 35: ............................................................ 126 

THE TRIAL COURT PROPERLY ADMITTED THE SURVEILLANCE VIDEO OF THE 

INSTANT OFFENSE AS WELL AS STILL PHOTOGRAPHS FROM THAT VIDEO.

ALTERNATIVELY, ANY ERROR IS HARMLESS. 

State’s Response to Issue Nos. 36 and 37: ............................................................ 137 

THE TRIAL COURT PROPERLY ADMITTED THE AUTOPSY PHOTOGRAPHS AND 

THE PHOTOGRAPHS OF THE COMPLAINANT IN THE HOSPITAL.

ALTERNATIVELY, ANY ERROR IS HARMLESS. 

State’s Response to Issue Nos. 38 through 40: ...................................................... 143 

THE TRIAL COURT PROPERLY ADMITTED EVIDENCE OF STATEMENTS MADE 

BY THE COMPLAINANT PRIOR TO HER DEATH. 

State’s Response to Issue No. 41: .......................................................................... 153 

THE TRIAL COURT PROPERLY ADMITTED EVIDENCE OF APPELLANT’S 

ACTIONS AFTER HE FLED THE WHIP-IN. 

State’s Response to Issue No. 42: .......................................................................... 157 

THE TRIAL COURT PROPERLY INSTRUCTED THE JURY ON VOLUNTARY 

INTOXICATION. 

State’s Response to Issue Nos. 43 and 44: ............................................................ 160 

THE TRIAL COURT PROPERLY ADMITTED EVIDENCE DURING THE 

PUNISHMENT PHASE OF APPELLANT’S EXTRANEOUS OFFENSES. 
iv

State’s Response to Issue Nos. 45 through 48: ...................................................... 165 

THE TRIAL COURT PROPERLY ADMITTED EVIDENCE OF APPELLANT’S 

ARRESTS AND CERTAIN JUDGMENTS AND SENTENCES. 

State’s Response to Issue No. 49: .......................................................................... 170 

THE TRIAL COURT PROPERLY ADMITTED THE TESTIMONY OF WARDEN 

MELODYE NELSON. 

State’s Response to Issue No. 50: .......................................................................... 173 

THE EVIDENCE IS LEGALLY SUFFICIENT TO SUPPORT THE JURY’S FINDING 

THAT APPELLANT IS A FUTURE DANGER. 

State’s Response to Issue Nos. 51 through 53: ...................................................... 178 

THE TRIAL COURT PROPERLY DENIED APPELLANT’S REQUESTED JURY 

INSTRUCTIONS AND OVERRULED HIS OBJECTIONS TO THE CHARGE. 

State’s Response to Issue Nos. 54 through 65: ...................................................... 183 

THE TRIAL COURT PROPERLY DENIED APPELLANT’S CHALLENGES TO THE 

DEATH PENALTY STATUTE. 

Prayer .....................................................................................................................187

Certificate of Compliance ......................................................................................187 

Certificate of Service .............................................................................................188 
v

INDEX OF AUTHORITIES

Cases 

Apolinar v. State, 

 106 S.W.3d 407 (Tex. App.—Houston [1st Dist.] 2003) aff’d, 155 S.W.3d 184 

(Tex. Crim. App. 2005) ............................................................................. 162, 164 

Apprendi v. New Jersey, 

 530 U.S. 466 (2000) ...........................................................................................184 

Archer v. State, 

 607 S.W.2d 539 (Tex. Crim. App. 1980) ...........................................................155 

Barnes v. State, 

 855 S.W.2d 173 (Tex. App.—Houston [14th Dist.] 1993, pet. ref'd) .................. 55 

Barfield v. State, 

 63 S.W.3d 446 (Tex. Crim. App. 2001) .............................................................124 

Batson v. Kentucky, 

 476 U.S. 79 (1986) ....................................................................................... passim 

Beltran v. State, 

 593 S.W.2d 688 (Tex. Crim. App. 1980) ...........................................................124 

Blue v. State, 

 125 S.W.3d 491 (Tex. Crim. App. 2003) ...........................................................181 

Bodde v. State, 

568 S.W.2d 344 (Tex. Crim. App. 1978) ...........................................................118 

Bone v. State, 

 77 S.W.3d 828 (Tex. Crim. App. 2002) ............................................................... 63 

Brooks v. State, 

 323 S.W.3d 893 (Tex. Crim. App. 2010) ...........................................................121 
vi

Camacho v. State, 

 864 S.W.2d 524 (Tex. Crim. App. 1993) ...........................................................155 

Cantu v. State, 

 939 S.W.2d 627 (Tex. Crim. App. 1997) .................................................. 180, 182 

Chamberlain v. State, 

 998 S.W.2d 230 (Tex. Crim. App. 1999) ...........................................................129 

Chambers v. State, 

 866 S.W.2d 9 (Tex. Crim. App. 1993) ................................................................. 53 

Colburn v. State, 

 966 S.W.2d 511 (Tex. Crim. App. 1998) ........................................ 78, 81, 88, 117 

Coleman v. State, 

 881 S.W.2d 344 (Tex. Crim. App. 1994) .................................................... 98, 103 

Cook v. State, 

 858 S.W.2d 467 (Tex. Crim. App. 1993) ............................................................. 56 

Cooper v. State, 

 67 S.W.3d 221 (Tex. Crim. App. 2002) .............................................................121 

Cordova v. State, 

 733 S.W.2d 175 (Tex. Crim. App. 1987) ...........................................................103 

Davis v. State, 

 329 S.W.3d 798 (Tex. Crim. App. 2010) ...........................................................179 

Davis v. Washington, 

 547 U.S. 813 (2006) ...........................................................................................150 

Devoe v. State, 

 354 S.W.3d 457 (Tex. Crim. App. 2011) ...........................................................154 

Duffy v. State, 

 567 S.W.2d 197 (Tex. Crim. App. 1978) .................................................. 181, 182 
vii

Emery v. State, 

 881 S.W.2d 702 (Tex. Crim. App. 1994) ...........................................................128 

Escamilla v. State, 

 143 S.W.3d 814 (Tex. Crim. App. 2004) ............................................ 89, 140, 186 

Espada v. State, 

 No. AP-75,219, 2008 Tex. Crim. App. Unpub. LEXIS 806 (Tex. Crim. App. 

2008) (not designated for publication) ...................................................... 181, 182 

Estrada v. State, 

 313 S.W.3d 274 (Tex. Crim. App. 2010) .................................................. 171, 180 

Feldman v. State, 

 71 S.W.3d 738 (Tex. Crim. App. 2002) ....................................................... passim 

Flowers v. State, 

 220 S.W.3d 919 (Tex. Crim. App. 2007) .................................................. 168, 169 

Furman v. Georgia, 

 408 U.S. 238 (1972) ...........................................................................................185 

Gallo v. State, 

 239 S.W.3d 757 (Tex. Crim. App. 2007) ...........................................................171 

Garcia v. State, 

 887 S.W.2d 862 (Tex. Crim. App. 1994) ...........................................................149 

Gardner v. State, 

 306 S.W.3d 274 (Tex. Crim. App. 2009) ..................................................... passim 

Gonzales v. State, 

 353 S.W.3d 826 (Tex. Crim. App. 2011) .................................................... 72, 113 

Gordon v. State, 

 784 S.W.2d 410 (Tex. Crim. App. 1990) .................................................. 130, 131 

Granados v. State, 

 85 S.W.3d 217 (Tex. Crim. App. 2002) .............................................. 85, 117, 119 
viii

Gray v. State, 

 233 S.W.3d 295 (Tex. Crim. App. 2007) ...........................................................120 

Green v. State, 

 912 S.W.2d 189 (Tex. Crim. App. 1995) ...........................................................181 

Griffith v. State, 

 983 S.W.2d 282 (Tex. Crim. App. 1998) ...........................................................171 

Hernandez v. New York, 

 500 U.S. 352 (1991) ............................................................................................. 61 

Hernandez v. State, 

 176 S.W.3d 821 (Tex. Crim. App. 2005) ...........................................................163 

Hernandez v. State, 

 563 S.W.2d 947 (Tex. Crim. App. 1978) ............................................................. 91 

Hooper v. State, 

 214 S.W.3d 9 (Tex. Crim. App. 2007) ......................................................... 121-22 

Jackson v. State, 

 33 S.W.3d 828 (Tex. Crim. App. 2000) .............................................................181 

Jackson v. State, 

 992 S.W.2d 469 (Tex. Crim. App. 1999) ...........................................................181 

Jackson v. Virginia, 

 443 U.S. 307 (1979) ...........................................................................................121 

Jones v. State, 

 982 S.W.2d 386 (Tex. Crim. App. 1998) ..................................................... passim 

Jordan v. State, 

 928 S.W.2d 550 (Tex. Crim. App. 1996) ...........................................................171 

King v. State, 

 29 S.W.3d 556 (Tex. Crim. App. 2000) .......................................... 74, 78, 81, 121 
ix

King v. State, 

 953 S.W.2d 266 (Tex. Crim. App. 1997) ...........................................................135 

Ladd v. State, 

 3 S.W.3d 547 (Tex. Crim. App. 1999) ........................................ 98, 129, 141, 173 

Lane v. State, 

 933 S.W.2d 504 (Tex. Crim. App. 1996) ...........................................................165 

Lane v. State, 

 822 S.W.2d 35 (Tex. Crim. App. 1991) ................................................ 91, 93, 112 

Leza v. State, 

 351 S.W.3d 344 (Tex. Crim. App. 2011) ...........................................................182 

Long v. State, 

 823 S.W.2d 259 (Tex. Crim. App. 1991) ...........................................................142 

Luna v. State, 

 301 S.W.3d 322 (Tex. App.—Waco 2009, no pet.) ...........................................162 

Martinez v. State, 

 327 S.W.3d 727 (Tex. Crim. App. 2010) ...........................................................174 

Mason v. State, 

 905 S.W.2d 570 (Tex. Crim. App. 1995) ...........................................................114 

Matamoros v. State, 

 901 S.W.2d 470 (Tex. Crim. App. 1995) .................................................. 132, 134 

Matchett v. State, 

 941 S.W.2d 922 (Tex. Crim. App. 1997) ...........................................................181 

Mathis v. State, 

 67 S.W.3d 918 (Tex. Crim. App. 2002) ............................................................... 54 

Medellin v. Dretke, 

 378 F.3d 270 (5th Cir. 2004) ................................................................................ 59 
x

Middleton v. State, 

 187 S.W.3d 134 (Tex. App.—Texarkana 2006, no pet.) ..................................... 55 

Miller-El v. Dretke, 

 545 U.S. 231 (2005) ................................................................................ 58, 63, 70 

Montgomery v. State, 

 810 S.W.2d 372 (Tex. Crim. App. 1990) ...........................................................129 

Morales v. State, 

 32 S.W.3d 862 (Tex. Crim. App. 2000) .............................................................135 

Moses v. State, 

 105 S.W.3d 622 (Tex. Crim. App. 2003) ...........................................................154 

Mosley v. State, 

 983 S.W.2d 249 (Tex. Crim. App. 1998) .................................................. 180, 183 

Munoz v. State, 

 853 S.W.2d 558 (Tex. Crim. App. 1993) ...........................................................124 

Narvaiz v. State, 

 840 S.W.2d 415 (Tex. Crim. App. 1992) ...........................................................181 

Nieto v. State, 

 365 S.W.3d 673 (Tex. Crim. App. 2012) ............................................................. 57 

Paredes v. State, 

 129 S.W.3d 530 (Tex. Crim. App. 2004) ...........................................................128 

Patrick v. State, 

906 S.W.2d 481 (Tex. Crim. App. 1995) .................................................. 124, 125 

Paulson v. State, 

 28 S.W.3d 570 (Tex. Crim. App. 2001) .............................................................181 

Pena v. State, 

 285 S.W.3d 459 (Tex. Crim. App. 2009) ............................................................. 79 
xi

Purkett v. Elem, 

 514 U.S. 765 (1995) ............................................................................................. 53 

Raby v. State, 

 970 S.W.2d 1 (Tex. Crim. App. 1998) ...............................................................183 

Rachal v. State, 

 917 S.W.2d 799 (Tex. Crim. App. 1996) ............................................................. 78 

Reed v. Quarterman, 

 555 F.3d 364 (5th Cir. 2009) ......................................................................... 51, 62 

Reese v. State, 

 33 S.W.3d 238 (Tex. Crim. App. 2000) .............................................................177 

Renteria v. State, 

 206 S.W.3d 689 (Tex. Crim. App. 2006) ...........................................................181 

Rhoades v. State, 

 934 S.W.2d 113 (Tex. Crim. App. 1996) ...........................................................182 

Roberts v. State, 

 220 S.W.3d 521 (Tex. Crim. App. 2007) ...........................................................180 

Robertson v. State, 

 871 S.W.2d 701 (Tex. Crim. App. 1993) ...........................................................182 

Rocha v. State, 

 16 S.W.3d 1 (Tex. Crim. App. 2000) .................................................................179 

Roethel v. State, 

 80 S.W.3d 276 (Tex. App.—Austin 2002, no pet.) ...........................................162 

Rojas v. State, 

 986 S.W.2d 241 (Tex. Crim. App. 1998) .................................................. 140, 142 

Romero v. State, 

 800 S.W.2d 539 (Tex. Crim. App. 1990) ...........................................................128 
xii

Russeau v. State, 

 291 S.W.3d 426 (Tex. Crim. App. 2009) .................................................. 181, 182 

Sadler v. State, 

 977 S.W.2d 140 (Tex. Crim. App. 1998) ............................................................. 72 

Salazar v. State, 

 38 S.W.3d 141 (Tex. Crim. App. 2001) .............................................................148 

Saldano v. State, 

 232 S.W.3d 77 (Tex. Crim. App. 2007) ....................................................... passim 

Sakil v. State, 

 287 S.W.3d 23 (Tex. Crim. App. 2009) .................................................... 158, 159 

Santellan v. State, 

 939 S.W.2d 155 (Tex. Crim. App. 1997) ...........................................................139 

Segundo v. State, 

 270 S.W.3d 79 (Tex. Crim. App. 2008) ............................................................... 85 

Simpson v. State, 

 119 S.W.3d 262 (Tex. Crim. App. 2003) ...................................................... 82, 85 

Soliz v. State, 

 432 S.W.3d 895 (Tex. Crim. App. 2014) ...........................................................182 

Templin v. State, 

 711 S.W.2d 30 (Tex. Crim. App. 1986) .............................................................164 

Thuesen v. State, 

 No. AP-76,375, 2014 Tex. Crim. App. Unpub. LEXIS 191 (Tex. Crim. App. Feb 

26, 2014) (not designated for publication) .........................................................182 

Threadgill v. State, 

 146 S.W.3d 654 (Tex. Crim. App. 2004) ........................................ 72, 87, 88, 172 

United States v. Figueroa, 

 618 F.2d 934 (2ndCir. 1980) .............................................................................129 
xiii

Vinson v. State, 

 252 S.W.3d 336 (Tex. Crim. App. 2008) ...........................................................150 

Walder v. State, 

 85 S.W.3d 824 (Tex. App.—Waco 2002, no pet.) .............................................155 

Watkins v. State, 

 245 S.W.3d 444 (Tex. Crim. App. 2008) ..................................................... passim 

Weatherred v. State, 

 15 S.W.3d 540 (Tex. Crim. App. 2000) ....................................................... passim 

Wells v. State, 

 578 S.W.2d 118 (Tex. Crim. App. 1979) ...........................................................156 

Wesbrook v. State, 

 29 S.W.3d 103 (Tex. Crim. App. 2000) .................................................... 155, 158 

Williams v. State, 

 958 S.W.2d 186 (Tex. Crim. App. 1997) ...........................................................152 

Witherspoon v. Illinois, 

 391 U.S. 510 (1968) ............................................................................................. 78 

Wood v. State, 

 18 S.W.3d 642 (Tex. Crim. App. 2000) .............................................................180 

Woodward v. Epps, 

 580 F.3d 318 (5th Cir. 2009) ................................................................................ 59 

Young v. State, 

 826 S.W.2d 141 (Tex. Crim. App. 1991) ............................................................. 62 

Zuliani v. State, 

 97 S.W.3d 589 (Tex. Crim. App. 2003) .................................................... 148, 151 

Constitutional Provisions 

Tex. Const. art. I ...................................................................................... 71, 184, 186 
xiv

U.S. Const. amend. VI ............................................................................................ 71 

U.S. Const. amend. XIV ......................................................................................... 71 

Statutes 

Tex. Code Crim. Proc. Ann. art. 35.16 (West 2006) ...................................... 71, 119 

Tex. Code Crim. Proc. Ann. art. 35.16 (a)(9) ................................................... 87, 91 

Tex. Code Crim. Proc. Ann. art. 35.16 (c)(2) ........................................... 86, 87, 101 

Tex. Code Crim. Proc. Ann. art. 35.17, § 2 ...................................................... 75, 79 

Tex. Code Crim. Proc. Ann. art. 35.261(a) (West 2006). ........................................ 51 

Tex. Code Crim. Proc. Ann. art. 37.07, § 3(g) ............................. 161, 162, 163, 164 

Tex. Code Crim. Proc. Ann. art. 37.071, § 2(a)(1) ................................................161 

Tex. Code Crim. Proc. Ann. art. 37.071, § 2(b)(1) ................................................173 

Tex. Code Crim. Proc. Ann. art. 37.071, § 2(c) ............................................ 101, 173 

Tex. Code Crim. Proc. Ann. art. 37.071 § 2(d)(1) .................................................173 

Tex. Code Crim. Proc. Ann. art. 37.071, § 2(e-f) ................................. 182, 184, 185 

Tex. Penal Code Ann. § 8.04(a) .................................................................... 158, 159 

Tex. Penal Code Ann. § 19.03 ........................................................................ 78, 121 

Tex. Penal Code Ann. § 29.02(a) ...........................................................................121 

Tex. Penal Code Ann. § 31.03(a) ...........................................................................121 
xv

Rules 

Tex. R. App. P. 33.1(a) ................................................. 61, 76, 79, 94, 113, 155, 168 

Tex. R. App. P. 38.1(h) ......................................................................... 149, 155, 179 

Tex. R. App. P. 44.2(b) ............................................................. 82, 85, 135, 143, 172 

Tex. R. Evid. 201 ..................................................................................................... 58 

Tex. R. Evid. 403 .................................................. 128, 129, 134, 137, 138, 140, 142 

Tex. R. Evid. 404(b) .............................................................................. 153, 154, 161 

Tex. R. Evid. 702 ...................................................................................................170 

Tex. R. Evid. 801(c) ...............................................................................................147 

Tex. R. Evid. 801(d) ...............................................................................................147 

Tex. R. Evid. 803(2).............................................................................. 147, 148, 149 

Tex. R. Evid. 804(b)(2) ................................................................................. 148, 150 

Tex. R. Evid. 1001(b).............................................................................................128 
1

TO THE HONORABLE COURT OF CRIMINAL APPEALS: 

 The State of Texas submits this brief in response to the brief of Appellant, 

Matthew Lee Johnson. 

STATEMENT REGARDING ORAL ARGUMENT 

 The State requests the opportunity to present oral argument if the Court 

grants Appellant’s request to argue. 

STATEMENT OF THE CASE 

 This is an automatic appeal from a sentence of death. See Tex. Code Crim. 

Proc. Ann. art. 37.071, § 2(h). The trial court sentenced Appellant to death on 

November 8, 2013 for the capital murder of Nancy Harris. Appellant filed his 

brief on direct appeal on August 1, 2014. He filed an amended brief on August 21, 

2014. He presents sixty-five allegations of reversible error. 

STATEMENT OF FACTS 

Guilt/Innocence 

The Offense 

On May 20, 2012, 76-year-old great-grandmother Nancy Judith Harris went 

to her job as a clerk at the Fina Whip-In (hereinafter, “the Whip-In”) convenience 

store. (RR44:23; RR46:10; SX#2, 25). At 7:071

 a.m., Appellant entered the store 

                                                            

1

 The surveillance video is time stamped 6:07 a.m. (RR44:49; SX#17). Anna Lunceford, the 

manager of the Whip-In, testified that the time was off by one hour; at the time she had not 
2

carrying a lighter and a clear plastic bottle filled with lighter fluid. (RR44:50, 230; 

SX#17, 79, 83, 85). Once inside, Appellant walked straight to the sales counter, 

then around and behind and into the area reserved for employees. (RR44:43; 

SX#17). Nancy was standing behind the counter. (SX#17). She tried to push 

Appellant back. (SX#17). Appellant poured the contents of the plastic bottle over 

Nancy’s head. (SX#17). 

 Appellant stood behind Nancy and watched as she tried to open the cash 

register. (SX#17). He took two lighters from a display to the right of the register. 

(RR44:231; SX#17, 85). Then, he took two packages of cigarettes from an 

overhead dispenser. (RR44:231; SX#17, 87, 88). He tried to remove Nancy’s 

ring from her right finger. (RR44:231; SX#17, 89, 90). The ring did not come 

off easily; Appellant licked his fingers to help slide it off. (RR44:232; SX#17, 90, 

91). Nancy finally got the register open2

 and Appellant took all of the cash from 

the cash tray. (RR44:232; SX#17, 96, 97). Then, he removed the cash tray out of 

the drawer and took some of the coins. (SX#17). 

 Almost immediately after Appellant took the money from the register, 

flames are reflected on the screen above the cash register. (RR44:232; SX#17, 97). 

                                                                                                                                                                                               

realized she would have to manually change the time following the time change. (RR44:35, 49-

50; SX#17). 

2

 Nancy opened the register for a no sale transaction at 7:10:54 a.m. (RR44:54, 128-29; SX#19, 

20).
3

Nancy, engulfed in flames from her shoulders up, ran out from behind the counter. 

(RR44:233; SX#17, 98). Appellant followed close behind. (RR44:233; SX#17). 

Nancy ran to a nearby sink and leaned over to put out the flames. (SX#17). 

Appellant calmly walked out of the store with his bottle, stopping only to take a 

few pieces of candy and stuff them in his pocket. (RR44:233-34; SX#17, 98, 99, 

100). 

 Nancy bent over the sink, trying to put out the flames consuming the upper 

portion of her body. (SX#17). She stopped to pull her shirt over her head and 

dropped it on the floor. (SX#17). As Nancy leaned back over the sink, her shirt, 

which was still burning on the floor, lit her left leg on fire. (SX#17). Unable to 

put out all of the flames, Nancy, still on fire, walked outside and waited for help. 

(SX#17). 

On the morning of the offense, Garland Police Officers Billy Coffey and 

Simon were dispatched to “the 3300 block of Broadway at the Soulman’s Bar-BQue and also at the plasma center.” (RR44:62, 64). Police had received calls 

regarding an audible alarm. (RR44:62). When the officers arrived at the plasma 

center, they found the area secure. (RR44:64). They got back into their squad 

cars and began to proceed to Soulman’s when Simon noticed flames across the 

street inside the Whip-In. (RR44:62, 65-66; SX#24). Concerned, the officers 

made their way to the Whip-In. (RR44:66). At that point, they had no idea what 
4

was on fire. (RR44:83). Coffey was at the red light, waiting to turn into the WhipIn, when he saw “the flames move across the inside of the building.” (RR44:66). 

Now, it was an emergency situation. (RR44:84). Coffey turned on his lights and 

sirens and hurried into the parking lot. (RR44:66). 

By the time the officers pulled into the parking lot, Nancy was standing 

outside. (RR44:84; SX#17). She was still on fire. (RR44:68; SX#17). Coffey 

retrieved a fire extinguisher from the trunk of his patrol vehicle, ran up, and 

extinguished the remaining flames. (RR44:68, 84-85; SX#17). Nancy was 

“screaming for help.” (RR44:69). She told the officers that a man had robbed her 

and poured something on her. (RR44:69). She gave a description of the robber: 

a “heavy-set black male with blue jeans . . . and a T-shirt.” (RR44:70). 

Garland firefighter and paramedic William Crews was in the area on an 

unrelated call when a police officer flagged him down for help. (RR44:89, 92). 

Crews pulled up to the Whip-In in the ambulance and began to treat Nancy. 

(RR44:93). “She was in a lot of pain. She was very worried.” (RR44:93). She 

had “first, second, and third degree burns to her face, her shoulders, her abdomen, 

both of her upper arms, and to her - - her legs.” (RR44:93). Crews loaded Nancy 

into the ambulance and left for the hospital.3

 (RR44:94). At first, Nancy was 

                                                            

3

 Crews was familiar with Nancy. He had “made runs on her before” and was aware of her 

diabetes, high blood pressure and the fact that she had a pacemaker. (RR44:94, 97, 102). He 

and his fellow firefighters also patronized the Whip-In. (RR44:94, 101-02). 
5

conscious and able to provide her name and history. (RR44:98). As they drove, 

her airway began to close and she had a harder time communicating. (RR44:98). 

At the hospital, Nancy was still conscious and able to speak. (RR45:80-81). 

April Gradel, a trauma nurse clinician in the burn unit, gave police a few minutes 

to speak with Nancy. (RR45:85, 172, 178; SX#143). Nancy had “at minimum 

second to third-degree burns over her entire head, including her face, her neck, her 

upper torso, and both of her arms.” (RR45:174). Given the location of Nancy’s 

burns, Gradel knew that she was going to have to be intubated. (RR45:175). 

Gradel saw a police officer in the hallway and told him that if he was going to 

speak with Nancy, it had to be immediately. (RR45:175). Gradel was “quite 

convinced it would be [Nancy’s last opportunity to speak].” (RR45:176). Nancy 

told Officer Larry Wilson that “a man she described as a black male, heavy-set, 

short dark hair, and a chubby face, came into the store and demanded money from 

her. She advised he took the money and then he poured something on her. She 

didn’t know what - - what it was, and then he lit her on fire.” (RR45:82). 

Dr. John Hunt was also involved in Nancy’s care in the Burn Unit. 

(RR46:5). Dr. Hunt testified when an individual is on fire, the mechanism of 

injury is the heat. (RR46:7). “Heat destroys.” (RR46:7). Dr. Hunt described the 

three types of burns: 

The way I usually tell it to family is if the skin is an inch thick, a 

sunburn is a first-degree burn, and let’s say hypothetically that’s 1/16th
6

of an inch. So you’ve got, you know, 15/16ths of an inch left, and 

that’s not injured and it heals very quickly. A third-degree burn goes 

through that entire inch of skin. Now, the skin is not an inch thick, 

but just vision [sic] it as it would be. When that inch of skin is 

destroyed, that is a third-degree burn. By definition, it destroys any 

potential for that area that’s third-degree to heal on its own. So a 

second-degree is anyplace between that sunburn which is 1/16th and 

that total inch, which is third-degree, in between. So potentially 

second-degree burns will heal, depends on how deep they are and how 

long it takes. But the skin elements are there in a second-degree burn, 

and potentially it will heal. A third-degree, it will not. 

(RR46:8-9). There is also a fourth-degree burn. (RR46:17). This type of burn 

does not stop at the underside of the skin; it goes all the way through the skin into 

the fat. (RR46:17). 

Dr. Hunt testified that Nancy had burns over 40% of her body. (RR46:10). 

The burns to Nancy’s upper body and face were third and fourth-degree burns. 

(RR46:18; SX#146). The burns to her left arm and hand were second and thirddegree burns. (RR46; SX#147). The burns to her right shoulder and breast were 

third and fourth-degree. (RR46:19; SX#148). The lower portion of her right arm 

and hand were second and third-degree burns. (RR46:19; SX#148). The burns to 

the top of her head were third-degree. (RR46:19-20; SX#149). 

Because Nancy’s injuries were to her face and neck, she was intubated and 

placed on a ventilator. (RR46:11). Her face was swollen and her eyes were shut. 

(RR46:14). She was able, however, to nod her head and gesture with her hands. 

(RR46:14). 
7

Nancy’s treatment team determined that Nancy was not going to survive her 

injuries and that treatment would be futile. (RR44:31; RR46:23). Prior to the 

instant offense, Nancy executed a DNR, a do-not-resuscitate order.4

 (RR44:30-31; 

SX#8). On May 25, 2012, given the severity and the extent of Nancy’s injuries 

and in accordance with her DNR, the decision was made to discontinue life 

support, and Nancy passed away. (RR46:23-24). 

Dr. Tracy Dyer, a medical examiner with the Dallas County Medical 

Examiner’s Office, performed Nancy’s autopsy. (RR46:25, 29-30; SX#9, 151-59). 

During the autopsy, Dr. Dyer observed “significant serious burns that involved her 

entire head, chest, portions of the upper back, and portions of, I believe, it was the 

left lower extremity or left thigh and leg.” (RR46:32). Her hands and palms were 

completely burned, destroying Nancy’s fingerprints. (RR46:32). On the back of 

her left hand, there were “some areas of skin slippage”; the thermal injuries caused 

loosening under the layers of Nancy’s skin, causing it to peel off. (RR46:36; 

SX#155, 156). Nancy’s right hand was more severely affected. (RR46:37). On 

that hand, “the superficial layers of the skin are gone, and what you have is that 

reddened deep tissue in this case, underneath.” (RR46:37; SX#157). Dr. Dyer 

observed skin slippage on Nancy’s left leg and thighs. (RR46:37; SX#158). 

                                                            

4

 Nancy’s DNR is dated May 17, 2002. (SX#8). 
8

Nancy’s injuries were consistent with flame burns. (RR46:38). Fire was a 

deadly weapon in this case. (RR46:38). The cause of Nancy’s death was thermal 

injury. (RR46:34, 39). The manner of her death was homicide. (RR46:39). 

Appellant’s Capture 

Shortly after police arrived at the Whip-In that morning, calls started coming 

in about a man hiding in the alleyways and between the homes in the neighborhood 

directly behind the store. (RR44:70, 86). That person matched Nancy’s 

description. (RR44:70-71, 86). Officers set up a perimeter around the 

neighborhood behind the Whip-In. (RR44:71). Officer Rafael Perez participated 

in the search. (RR44:178). In the alley behind Mt. Vernon Street, he noticed a 

“heavy-set black male, no shirt, with dark pants” matching the suspect’s 

description. (RR44:181-82). Perez identified Appellant as the man he saw in the 

alley. (RR44:182-83). When Appellant saw Perez, he took off running. 

(RR44:182-83). Perez lost sight of him briefly, but then he saw Appellant’s leg 

sticking out from under a bush. (RR44:184-85). “He was laid back, kind of 

leaning against the wall with one leg out.” (RR44:185). Perez drew his weapon 

and instructed Appellant to come out from the bushes and get on the ground. 

(RR44:185-86). Coffey arrived and they placed Appellant in handcuffs. 

(RR44:186). Appellant asked the officers, “What took you so long[?] Y’all are 

getting slow.” (RR44:186). Appellant was arrested and searched before he was 
9

placed in the squad car. (RR44:74). From Appellant’s pockets, Coffey collected a 

used lighter, a red lighter, a purple lighter, a gold ring, a car key, coins, and cash. 

(RR44:75-78; SX#6, 26, 28-30, 59, 60). Appellant did not appear intoxicated. 

(RR44:187). 

Coffey transported Appellant to the police station.5

 (RR44:74). On the 

drive to the station, Appellant tried repeatedly to engage Coffey in conversation. 

(RR44:80-81; SX#31). He asked, “What am I being booked for, man?” (SX#31, 

1:01). When Coffey advised Appellant was arrested for attempted capital murder, 

Appellant asked, “Attempted capital murder of who?” (SX#31, 11:38-1:39). 

Appellant continued to try to engage Coffey in conversation. (See SX#31). He 

asked if Coffey was a family man. (SX#31, 2:55). He asked whether Coffey was 

Coffey or Perez. (SX#31). Coffey did not respond to Appellant’s questions. 

Appellant stated, “I can tell you everything, man. I can tell you what you want to 

know.” (SX#31, 3:32-3:36). A few minutes later, Appellant told Coffey that he 

had been waiting for police. (SX#31, 6:25). He said that the police came “because 

I want[ed] you to.” (SX#31, 6:32). Coffey testified that during the transport, 

Appellant did not appear intoxicated. (RR44:79, 87). Appellant did not slur his 

speech and he did not smell of alcohol. (RR44:79, 87). Appellant appeared “[to 

be] coming down from [an] adrenaline rush, maybe fatigued.” (RR44:79-80). 

                                                            

5

 A video recording of the transport video was admitted into evidence as State’s Exhibit #31. 

(RR44:80-81). 
10

Detective Stacy Tooke was the lead detective on the case. (RR44:213-14). 

Tooke contacted Appellant at the jail after his arrest. (RR44:219). He requested 

and was granted consent to take a sample of Appellant’s DNA. (RR44:219-21; 

SX#103). A forensic investigator collected Appellant’s DNA and took 

photographs of Appellant’s person. (RR44:221). Tooke interviewed Appellant at 

the jail. (RR44:237). 

The jury heard testimony from three of the residents from the neighborhood 

behind the Whip-In, where Appellant hid after the instant offense. Jim Medley 

lives across the alley, behind the Whip-In. (RR44:142-43). On the morning of the 

offense, he was at home alone. (RR44:143-44). He heard his dog barking in the 

backyard, so he went outside to investigate. (RR44:144). The gate to his rearentry driveway was open. (RR44:144). On his way back inside the house, 

Medley saw a “black man without a shirt, pushing a bicycle. That was about, oh, 

two houses away.” (RR44:148). At the time, it “seemed like a lot of commotion 

in the neighborhood.” (RR44:145). Medley saw police cars and could hear 

sirens. (RR44:145). He noticed his garbage container had been moved and a pack 

of cigarettes in his driveway. (RR44:146; SX#48, 78). Medley is not a smoker. 

(RR44:146). He picked them up and put them in the garbage. (RR44:146, 151-

53; SX#50). Inside the garbage can, he found a t-shirt. (RR44:147; SX#77). 
11

Ken Marecle was at home with his daughter on the morning of the offense. 

(RR44:155-56). At one point, Marecle’s daughter said a man was on their back 

porch and was heading for their front door. (RR44:156). Marecle cracked open 

the front door. (RR44:157). Appellant was standing on the front porch. 

(RR44:159, 166-67; SX#55). Appellant’s “eyes were really wide and big.” 

(RR44:169). He did not smell of alcohol. (RR44:168-69). He was wearing pants 

and “military style black rim glasses” but he did not have a shirt on. (RR44:162). 

Appellant told Marecle he needed help. (RR44:157, 159). Then, he tried to force 

his way into Marecle’s home. (RR44:159-60). Marecle used his shoulder to push 

Appellant outside into the courtyard. (RR44:160, 169). Appellant started fighting 

and flailing his arms. (RR44:161, 169). He pushed Marecle backwards. 

(RR44:162). Marecle fell and skinned his arms and knee. (RR44:162, 165; 

SX#56). When he stood up, Appellant took the glasses off of Marecle’s face and 

fled.6

 (RR44:162-63, 170). Marecle and his daughter were later shown a lineup 

but neither was able to identify the man they saw that morning. (RR44:210-11). 

Lawrence Denson lives on Colonial, near the Whip-In. (RR45:7-8; SX#65). 

On the morning of the offense, Denson was in his kitchen when he noticed 

“[Appellant], looked like he was trying to get inside my gate on the side of my 

house.” (RR45:9). Denson went outside to confront him. (RR45:9, 11). 

                                                            

6

 The glasses were found several weeks later in the hedges by a neighbor. (RR44:165-66). 
12

Appellant approached Denson “with his arms out, and said, man, I’m in a bad 

way.” (RR45:9, 11-12; SX#51-53). Denson told him that “he needed to get his 

bad way out of my yard.” (RR45:12). A family friend staying at Denson’s home 

came outside. (RR45:12-13). Appellant turned around and ran toward an alley. 

(RR45:13-15). Appellant did not appear to be intoxicated. (RR45:16). Denson 

picked Appellant out of a lineup. (RR44:210; RR45:18-19; SX#62-63). 

The Investigation 

On the morning of the offense, Anna Lunceford, Nancy’s manager and 

friend, was notified that the panic button had been activated at the Whip-In. 

(RR44:35, 38, 44; SX#25). When she arrived at the store, Nancy was not there. 

(RR44:44). The police asked Lunceford to retrieve the footage from the 

surveillance cameras.7

 (RR44:46). Lunceford rewound the DVR and played the 

surveillance video for the police. (RR44:45-46; SX#15, 16, 17). 

After she reviewed the surveillance video, Arson Investigator Nancy 

Carpenter instructed firefighters to look around for the bottle that Appellant was 

carrying in the video. (RR44:110-11; RR45:48-49). Firefighter Gary Church went 

outside and walked toward the back of the building. (RR44:111, 113-14). He 

found a drinking bottle on the ground in the grass. (RR44:111-12; SX#35, 36). 

                                                            

7

 Lunceford testified that the Whip-In is equipped with three surveillance cameras. (RR44:39-

40; SX#10-12). The images from the cameras are recorded on a digital video recorder. 

(RR44:45). 
13

Inside the bottle was a paper towel, “down inside the bottle, kind of in the neck[.]” 

(RR45:49; SX#36). The bottle smelled of a petroleum-type product. (RR45:49). 

Carpenter collected the plastic bottle. (RR45:50-51; SX#36, 114, 115). 

Inside the store, Carpenter pulled back the mat on the floor behind the sales 

counter. (RR45:60). Carpenter discovered a liquid pooled beneath and collected 

a sample. (RR45:60-62; SX#117, 118, 129). Carpenter transported all of the 

evidence she collected to the Armstrong Laboratory, a lab capable of testing 

evidence involved in an arson investigation. (RR45:69). 

Dr. Kelly Wouters is a chemist with Armstrong Lab. (RR45:106-07; 

SX#136). He testified to the results of the chemical testing. (RR45:110, 112, 113; 

SX#137, 138). Analysis of the contents of the plastic drinking bottle and Nancy’s 

clothing showed “a medium petroleum distillate of the primary recovery, and . . . a 

lower level of isopropyl alcohol.” (RR45:113-14; SX#137). A medium 

petroleum distillate is “the type of ignitable liquid that we encounter as charcoal 

starter fluid or paint thinners - - we call it mineral spirits sometimes[.]” 

(RR45:114). Isopropyl alcohol is rubbing alcohol. (RR45:115). Medium 

petroleum distillates and isopropyl alcohol are “immiscible”; they do not mix. 

(RR45:115). The pooled liquid collected from under the mat behind the sales 

counter contained medium petroleum distillate. (RR45:116). Appellant’s t-shirt, 

pants, belt, left shoe and sock, and his right shoe also contained medium petroleum 
14

distillate. (RR45:116-17; SX#138). Neither the pooled liquid nor Appellant’s 

clothes and shoes contained isopropyl alcohol. (RR45:116-17). No ignitable 

liquids were detected on the swabs of Appellant’s hands. (RR45:116). 

Dr. Wouters testified that the liquid contained in SX#60, the cigarette 

lighter, was “probably butane[,]” which is not a medium petroleum distillate. 

(RR45:118). The same is true for the liquid contained in SX#59, the other 

cigarette lighter. (RR45:119). 

The plastic drinking bottle was swabbed for a DNA sample. (RR45:128-

30; SX#160-164). Appellant’s DNA was found on the swab of the exterior of the 

plastic bottle. (RR45:154; SX#142). He was also included as a possible 

contributor of a DNA profile from the interior and exterior opening of the bottle. 

(RR45:155; SX#142). Appellant was included as a possible contributor of a low 

level sample of DNA from the cash drawer. (RR45:156; SX#142). The swab 

from the cash drawer was not a very strong match to Appellant. (RR45:160). A 

partial DNA profile from the cigarette package matched Appellant. (RR45:156; 

SX#142). No DNA profile was obtained from one of the swabs of the T-shirt, one 

of the stains from the counter, or the door handle. (RR45:150, 152; SX#142). 

Another stain from the T-shirt was a match to Appellant. (RR45:150; SX#142). 

There was also a profile of an unknown male and an unknown female obtained 

from that stain. (RR45:150; SX#142). Nancy Harris was excluded as a possible 
15

contributor to the unknown female profile. (RR45:153). A sample from a cutting 

of the t-shirt was also a match to Appellant. (RR45:153; SX#142). This sample 

contained a profile of an unknown female and an unknown female as well. 

(RRR45:153-54). 

Punishment 

The State’s Case-in-Chief 

At punishment, the State presented evidence of Appellant’s criminal history 

and bad behavior while in prison: 

In 1993, Appellant lived with Amy Armstrong Franks and three of her 

children. (RR47:35-37). At the time, Appellant was Franks’ boyfriend. 

(RR47:36). He was 17 and she was 23. (RR47:38). Appellant was good to 

Franks’ children, but over time, he and Franks started fighting. (RR47:37, 39). 

Appellant “put his hands on [Franks]” and would grab her and hit her. (RR47:40). 

Franks fought back. (RR47:40, 68). 

 On one occasion, after a fight, Franks left the apartment and went to a 

friend’s apartment upstairs. (RR47:41). She left her two-year-old daughter 

downstairs. (RR47:41). While Franks was gone, Appellant took Franks’ twoyear-old and left. (RR47:41). He eventually returned, and he and Franks 

reconciled. (RR47:42). 
16

 The last straw for Franks was when, during yet another fight, Appellant hit 

Franks while she was holding her daughter. (RR47:42). Her daughter “caught the 

back part of his hand.” (RR47:42). When Appellant left, Franks locked him out 

and refused to let him back in her apartment. (RR47:42). She called the police 

and told them what had happened. (RR47:44). Appellant returned after the police 

left but Franks refused to let him in. (RR47:45). She told him that their 

relationship was over. (RR47:46). Appellant banged on the door and threatened 

to kick it in. (RR47:46). He threatened to beat her behind. (RR47:70, 75). 

Franks barricaded the door and blocked the windows with mattresses and a bunk 

bed. (RR47:46, 51). She turned off the lights and waited in the hallway with a 

gun – Appellant’s gun. (RR47:47, 70). “And then [Appellant] went around and 

set my patio on fire.” (RR47:46). Appellant threw something onto the patio, 

setting a rug on fire. (RR47:49). Franks saw the flames and went outside. 

(RR47:50). She shot at Appellant as he ran away. (RR47:50-51, 73). Then she 

put out the fire. (RR47:50-51). 

On September 8, 1993, Dallas Police Officer Eric Hagen was dispatched to 

Franks’ apartment. (RR47:21). When he arrived, Franks was “extremely agitated 

and upset” but would not let Hagen inside. (RR47:22). Hagen walked around to 

the back porch of the ground-floor apartment. (RR47:23, 26). He looked over the 
17

fence and saw “a burned piece of wood and burned patio carpet.” (RR47:24). It 

appeared someone had tried to set the carpet on fire. (RR47:26). 

On November 9, 1993, Garland Police Investigator Berry Oliver was on 

routine patrol when he saw Appellant walking down the street smoking a joint. 

(RR47:101, 104–107). When Appellant saw Oliver, he attempted to conceal the 

joint by “stick[ing] it down the back of his neck and then [he] immediately starts 

trying to get into the trunk of the car[.]” (RR47:104-05). Oliver stopped Appellant 

and patted him down. (RR47:105). He found the joint “between [the] coat and 

[the] shirt [Appellant was wearing]” and he found a bag of marijuana inside a 

towel that Appellant was carrying. (RR47:105, 107). Oliver arrested Appellant for 

possession of marijuana and an outstanding warrant. (RR47:105, 108). Appellant 

pleaded guilty and received six months’ probation. (RR47:109-110; SX#167). His 

probation was subsequently revoked and he was sentenced to 30 days in jail. 

(RR47:110; SX#167). 

On July 23, 1994, while on patrol Garland Police Officer Blaine Ralston ran 

a routine check of a license plate on a black four-door Cadillac to check for 

outstanding warrants. (RR47:116-17). There was an outstanding warrant on the 

vehicle, so Ralston attempted to initiate a traffic stop. (RR47:117-18). He 

activated his red and blue lights, but the vehicle did not stop; it “just continue[d] to 

roll down the road.” (RR47:118). Ralston could see there were two people in the 
18

vehicle. (RR47:118). The female driver made eye contact via the rear view 

mirror. (RR47:118, 120). Ralston activated his siren but the vehicle still did not 

stop. (RR47:119). The vehicle ran a stop sign. (RR47:119). Ralston could see 

the male passenger motioning for the driver to ignore Ralston. (RR47:12021). 

The vehicle “started to slow roll” at which point Appellant jumped out and ran 

toward a house, ignoring commands to stop. (RR47:122–23). Appellant tried but 

was unable to open the front door of the house. (RR47:123). Ralston and his 

partner apprehended him. (RR47:123–24). He told the officers “he had told [the 

driver, his wife Daphne Johnson] to continue to go and not stop because he had 

warrants for his arrest.” (RR47:125). Appellant was later convicted of evading 

arrest and given one year of probation. (RR47:127-28; SX#168). His probation 

was subsequently revoked and he was sentenced to 180 days in jail. (RR47:128; 

SX#168). 

On August 7, 1995, Garland Neighborhood Police Officer M.G. Clark was 

dispatched to locate Appellant, who was wanted on an ongoing aggravated assault 

with a deadly weapon call. (RR47:132-33). Throughout the night, Appellant had 

been making threatening phone calls and police had received a tip he was at a 

particular location. (RR47:133-34). Clark located Appellant and arrested him for 

outstanding warrants and the aggravated assault case. (RR47:134-37). At the jail, 

Appellant threatened Clark so Clark filed a retaliation case against Appellant, 
19

primarily for record purposes. (RR47:138-40). Appellant was later convicted of 

the aggravated assault and sentenced to ten years in prison, probated for five years. 

(RR47:140–41, 143; SX #169). The complainant on the aggravated assault case 

was Courtney Johnson. (RR47:143; SX#169). The retaliation charge was nobilled. (RR47:144). 

On October 9, 2002, Garland Police Officers Clay Lacey and Gary 

Steadman responded to a hit-and-run call. (RR47:147, 155). The person who 

called police was following the vehicle that was involved in the hit-and-run. 

(RR47:148, 155). By the time Lacy arrived at the scene, “the person in the car 

was getting out.” (RR47:148-49). Lacy and Steadman searched the area and 

eventually found and apprehended Appellant. (RR47: 150–151, 155–57). 

Appellant repeatedly ignored Steadman’s commands to stop running and to get on 

the ground. (RR47:157-58). Steadman eventually tackled Appellant and arrested 

him for evading arrest. (RR47:158-60). Appellant was later convicted of the 

offense and sentenced to 75 days in jail. (RR47:160-61; SX#170). 

On June 14, 2004, Digna Salmeron was in her truck preparing to leave for 

work when she heard a knock on the window. (RR47:182, 191). The man stated 

he was sick and needed to use a phone to call an ambulance. (RR47:183). Scared, 

Salmeron told the man she did not have a phone. (RR47:183-84). The man “just 

went at [her].” (RR47:184). He tried to force his way into the truck. (RR47:184–
20

85, 191). The man eventually wrested the keys away from Salmeron and threw her 

into the yard. (RR47:186). He then started the truck and left. (RR47:186). He later 

wrecked Salmeron’s truck, rendering it inoperable. (RR47:188, 197). Salmeron 

could not fully identify the person who did this to her, except that he was a big and 

strong Black man. (RR47:189, 192-93). 

Garland Police Officer Matthew St. Clair was dispatched as backup on the 

call regarding the carjacking of Salmeron’s truck. (RR47:165, 167). When St. 

Clair arrived in the area, Officer McClendon had already located the stolen vehicle 

and “was in the midst of a . . . high speed vehicle pursuit through some 

neighborhoods.” (RR47:166-67). The driver – Appellant – “lost control and 

wrecked out and struck a wall, some parked cars in a driveway, and the corner of a 

house.” (RR47:168, 170). At that point, Appellant got out and attempted to flee 

on foot. (RR47:170). He was eventually taken into custody. (RR47:171-72). 

Appellant was subsequently convicted of robbery and sentenced to five years in 

prison and assessed a $1,500 fine. (RR47:175-76; SX#171). He was also 

convicted of evading arrest, sentenced to a year in state jail, and assessed a $1,500 

fine. (RR47:175-76; SX#171). 

On September 13, 2004, Garland Police Lieutenant John Spera responded to 

“a family disturbance” call. (RR47:78-79). “[T]here was a suspect there 

attempting to kick the door in and that there was also a protective order on him.” 
21

(RR47:79-80). The complainant was Daphne Johnson. (RR47:80). Daphne told 

police that Appellant “had told her he was coming over to get some money and that 

he would kick in the door if he had to.” (RR47:84). Footprints were visible on 

the door. (RR47:85). There were two children in the apartment at the time. 

(RR47:87). Appellant was subsequently convicted for violation of a protective 

order and sentenced to 330 days in jail. (RR47:97; SX#166). 

The State also presented evidence of a theft committed by Appellant against 

his former employer. David Contente owns Kwik Kar Oil and Wash in Mesquite. 

(RR48:157). Appellant worked for him in December 2010, performing State 

inspections and helping out in the shop. (RR48:158-61). He later became a 

cashier. (RR48:161, 183). Appellant worked ten hours a day, five days a week. 

(RR48:180). He was reliable and was given a set of keys to the business. 

(RR48:162, 164). Appellant did not handle conflict well, however. (RR48:163). 

“He was too rigid, in our rules, you know.” (RR48:163). 

On November 14, 2011, Appellant called Contente at 5:00 in the morning. 

(RR48:163-64). Appellant “said I needed to come down to the store so he could 

talk to me and that he had done a bad thing.” (RR48:164). Contente went to his 

computer and tried to access the surveillance cameras at the store, but the camera 

was blacked out. (RR48:165, 166; SX#175-178). Contente “went to the police 

department and asked a policeman to go down there with me.” (RR48:170). He 
22

“thought the worst.” (RR48:171). The police accompanied him to the store. 

(RR48:171). There, Contente discovered that three state inspection booklets, $325 

in cash, and a monitor were missing. (RR48:172-73). The inspection booklets and 

the cash were taken from the safe. (RR48:172-73). The booklets are valued at 

$2100. (RR48:172). Footage from surveillance camera showed Appellant in the 

store earlier that morning and that Saturday night. (RR48:174; SX#173, 174). 

Appellant was arrested. (RR48:178). The monitor was returned but the inspection 

booklets and the cash were not. (RR48:175, 178; SX#174). 

On April 15, 2012, at 5:30 in the morning, Appellant was brought into the 

emergency room by Dallas police and paramedics. (RR48:190-91; SX#188). He 

was handcuffed, “highly agitated” and “somewhat combative.” (RR48:194). He 

was in a substance-induced psychosis. (RR48:202-03). It took eight or nine 

people to hold Appellant on the bed. (RR48:194). He had to be placed in a body 

net, a four-point restraint that lays over the patient and attaches to the bed. 

(RR48:194-95). The more the staff tried to hold Appellant down, the more 

agitated it made him. (RR48:195). Appellant made several statements: “I hope 

they’re getting this on TV, God is watching all of this, XLT and divorce is a bad 

thing, and I’m going to grab your gun.” (RR48:197). Once Appellant was 

medicated he calmed down. (RR48:198). He reported that he had being smoking 
23

crack cocaine, ice, and marijuana laced with PCP. (RR48:198). He did not report 

any mental health concerns. (RR48:199-200, 208). 

Parker was not involved in his discharge, but per hospital protocol, 

Appellant would have been offered information and resources regarding drug 

treatment. (RR48:200-01, 205, 208-09). 

On the morning of April 26, 2012, Carina Pinzon was working as a 

housekeeper at the Express Inn in Garland. (RR48:101). She was cleaning one of 

the rooms and left the door propped open with her cart. (RR48:102). When she 

was cleaning the bathroom, a man moved her cart and entered the room. 

(RR48:102-03). Pinzon turned around when the man touched her shoulder. 

(RR48:103-04). He said something to her in English, but she did not understand 

him. (RR48:103). She asked if he needed something. (RR48:103). At that point, 

she noticed that the zipper on his pants was down. (RR48:104, 108). “[H]e had 

his penis outside and that’s when I got scared.” (RR48:104). His penis was erect. 

(RR48:108). He tried to grab her hand. (RR48:105). Pinzon threw a bucket of 

water at him, pushed him and ran away. (RR48:105). She ran to the office and 

her manager called the police. (RR48:105-06). 

 Garland Police Officer Mark Mendoza was dispatched to the Express Inn. 

(RR48:117-18). There, he spoke with Pinzon and got a description of the suspect. 

(RR48:119). He then consulted with the manager to determine whether the suspect 
24

was a guest at the motel. (RR48:119). The manager gave him some names and 

Mendoza went to those rooms. (RR48:120). Appellant was one of the possible 

suspects. (RR48:120). Mendoza recognized Appellant from a prior arrest. 

(RR48:120). Appellant allowed Mendoza into his motel room, which smelled of 

marijuana. (RR48:121, 129). Mendoza noticed that Appellant’s clothes were wet. 

(RR48:121, 123). Appellant told Mendoza that he had been smoking crack all 

night, but he did not appear intoxicated. (RR48:121, 123, 130). Mendoza asked if 

Appellant had anything illegal in his room. (RR48:122). Appellant advised that he 

“probably had a crack pipe or something somewhere in the room.” (RR48:122). 

Mendoza asked Appellant about the incident with Pinzon. (RR48:122). Appellant 

told him that “he was just trying to drop off some towels to the room.” 

(RR48:122). Pinzon confirmed Appellant was the man who had exposed himself to 

her. (RR48:124). Appellant was not arrested, but he was issued a criminal 

trespass warning and was ordered to leave the motel. (RR48:124-25). 

Mendoza had previously arrested Appellant on May 31, 1994. Mendoza and 

his partner, Officer Ehrman, were dispatched to the scene of a man and woman 

fighting on the side of the road. (RR48:111-12). Upon arrival, the officers 

separated Appellant and the woman and ran a check for outstanding warrants. 

(RR48:112). They seated Appellant in the patrol car. (RR48:113). When Officer 

Mendoza opened the door to notify Appellant that he would be arrested on a 
25

warrant, Appellant “came charging out of the back [of the] squad car, like trying to 

get away, and we began wrestling with him.” (RR48:113). Appellant put up “a 

pretty good struggle.” (RR48:114). He bit Mendoza on the arm. (RR48:114). 

He bit Ehrman. (RR48:114). He bit Ehrman so hard that he bit through the 

officer’s watch. (RR48:114). Appellant later pleaded guilty to resisting arrest and 

was sentenced to twelve months’ probation. (RR48:115-16; SX#189). His 

probation was revoked and he was sentenced to 365 days in jail. (RR48:116; 

SX#189). 

Carlton Jenkins was incarcerated with Appellant at the Rudd Unit for two 

months in 2005. (RR47:201, 203, 238). They were bunkmates. (RR47:202). At 

first, Appellant and Jenkins had “a decent relationship.” (RR47:205). Jenkins 

testified that Appellant “stopped going to work . . . [and] was confined to the 

housing unit then.” (RR47:207). Several times, Appellant was not able to buy 

groceries at the commissary. (RR47:210). Jenkins shared some of his food with 

him. (RR47:211). The bunkmates’ relationship began to change. (RR47:214). 

Jenkins saw Appellant sitting on the head of his bed, which is a sign of disrespect. 

(RR47:214). Appellant’s “demeanor went south.” (RR47:215). Appellant “quit 

school, too.” (RR47:216). He “was on confined housing.” (RR47:216). Jenkins 

tried to talk to Appellant but “It went bad.” (RR47:219). 
26

July 25, 2005 “was GI day.” (RR47:220). “[E]verybody cleans the dorm.” 

(RR47:220). Afterwards, Appellant “was sitting on [Jenkins’] bunk.” 

(RR47:222). Jenkins told Appellant that they needed to talk because he wanted 

Appellant to stop disrespecting him. (RR47:223, 247). The men went to the back 

of the dorm. (RR47:223, 248). There, “[Appellant] assaulted [Jenkins]. He 

swung at [him].” (RR47:223). He hit Jenkins in the head. (RR47:224). The men 

“sort of grabbed each other[.]” (RR47:224). They separated when they thought a 

guard was approaching. (RR47:225). Then, they “went back and then [they] 

fought some more.” (RR47:225). Appellant grabbed Jenkins below his knees and 

flipped him, causing Jenkins’ head to his the concrete floor. (RR47:226, 233). 

Jenkins “split [his] head open.” (RR47:227). He was bleeding; “[t]here was 

blood everywhere.” (RR47:227-28). Jenkins was transferred to another unit to 

receive medical treatment. (RR47:230). The injury to his head required nine 

staples. (RR47:230–231; SX #172). Jenkins also suffered bruising from blows to 

his face and head. (RR47:232). Appellant was sent to solitary confinement. 

(RR47:230). 

Ashley Villegas worked for a year as a correctional officer with the Texas 

Department of Criminal Justice (“TDCJ”) at the Price Daniel Unit in Snyder, 

Texas. (RR47:256-57). Villegas worked the overnight shift, from 9:00 p.m. to 

5:00 a.m., which required that every two hours she walk the unit and count the 
27

inmates. (RR47:260, 262). On February 14, 2006, when she arrived at 

Appellant’s cell during her 1:00 a.m. count, she “noticed the offender having one 

arm up on his door and the other arm on his penis masturbating and looking at me 

and smiling like with a grin, I guess as if he thought it was funny.” (RR47:263-

64). Appellant’s pants were down and his penis was visible. (RR47:264). 

Villegas testified that Appellant was “known as . . . a high profile inmate so that 

means that all the officers knew who he was, but not in a good way, because they 

had also written disciplinary reports on him, too.” (RR47:271). 

Jennifer Pyburn is a detention officer at the Lew Sterrett Jail. (RR48:134). 

At one time, Appellant was under her supervision. (RR48:137). One time when 

Pyburn was escorting Appellant to a visit, he turned around “and he was like, I 

ought to just pull you in here, which is like the visitation door.” (RR48:145). 

Appellant “didn’t say it in a mean - - mean way[.]” (RR48:145). He was smiling. 

(RR48:145). Appellant later apologized. (RR48:155). 

On another occasion, Pyburn observed an interaction between Appellant and 

another detention officer when Appellant was disrespectful. (RR48:147-48). The 

officer told Appellant the shower he was supposed to be cleaning was not clean 

enough. (RR48:147). Appellant told her that was the way he cleaned it. 

(RR48:147-48). When Pyburn instructed Appellant how to clean the shower, he 

told her that “we do not pay him enough to clean the shower.” (RR48:149). 
28

Pyburn testified that although it is against the rules, inmates tattoo 

themselves while in jail. (RR48:140-41). The tattooing device is usually 

fashioned using staples or parts from a dismantled intercom and the ink is created 

using colorful candy. (RR48:140-41). 

Melodye Nelson, a 25-year veteran of TDCJ, testified as an expert on the 

prison system in Texas. (RR48:18). She is the senior warden of the female death 

row located at the Mountain View Unit in Gatesville, Texas. (RR48:19). She 

previously served as a major at the male death row located at the Polunsky Unit in 

Livingston, Texas for over three years. (RR48:18-19). Nelson testified generally 

about the types of facilities, number of inmates and guards statewide, and how 

inmates are classified within the system. 

 When an inmate arrives at TDCJ, he is sent to intake in order to determine 

his custody level. (RR48:32). Among the factors considered are the inmate’s 

history of incarceration and prior jail conduct, as well as the nature of his current 

offense and the length of his sentence. (RR48:31-32). General Population 1, or 

“G1,” are those offenders who are the lowest risk. (RR48:32, 34). A G1 may be a 

trustee, which allows him or her to live and work outside of the facility’s perimeter 

fences. (RR48:34). General Population 2, or “G2,” is the largest percentage of 

the general inmate population. A G2 may live in a dormitory and work in 

maintenance, food service or laundry. (RR48:41). General Population 3, or “G3,” 
29

includes inmates serving 50 years or more. (RR48:32). A G3 is not allowed into 

public unrestrained and without armed supervision. (RR48:35). A G3 “cannot be 

assigned anywhere on a facility that they would have access to multiple areas, such 

as maintenance crews.” (RR48:41). G3s are permitted contact visits with their 

immediate family. (RR48:58). General Population 4, or “G4,” are those inmates 

who are disciplinary problems. (RR48:32). A G4’s movement and job assignment 

are very restricted. (RR48:42). General Population 5, or “G5,” are those inmates 

who are disciplinary problems and exhibit assaultive behaviors. (RR48:32-33). 

Finally, administrative segregation is reserved for inmates with multiple 

disciplinary incidents or gang affiliation or inmates who “have posed a threat - - a 

continuing threat to the safety and security of our institutions.” (RR48:44). The 

inmate’s initial classification is then referred to a State Classification Committee. 

(RR48:33). Based on that classification, the inmate will be assigned to a facility 

within TDCJ. (RR48:33). Once in that facility the Unit Classification Committee 

will monitor and adjust the inmate’s custody level. (RR48:33). 

An inmate convicted of capital murder and sentenced to life without parole 

is classified as a G3 upon arrival at TDCJ. (RR48:48). A capital murderer 

sentenced to life without parole will never receive a classification better than G3, 

although they may be classified as a G4 or G5 or placed in administrative 

segregation. (RR48:48). 
30

 With regard to death row inmates, there are three custody levels: 1, 2, and 3. 

(RR48:46). Nelson described them as follows: 

Death Row 1 meaning no disciplinaries, not a behavior problem; 2 

would be the same thing, had a major disciplinary case; and a Death 

Row 3 would be assaultive death row, or assaultive disciplinary case. 

And we keep them as a D3 30 days. We review them. If they haven’t 

had another assaultive case, we move them up to a D2. A Death Row 

2, Level 2 stays there 90 days. At the 90-day mark, we review them, 

and if they haven’t had some continued disciplinary problems, we - - 

we bump them back up to a Death Row Level 1, a D1. 

(RR48:46). All death row inmates are housed in one-man cells and most are 

allowed up to two hours of recreation per day. (RR48: 46, 77). They are allowed 

two hours of visitation once a week as well as a visit from a spiritual advisor. 

(RR48:77). 

 TDCJ maintains some records of inmates’ disciplinary infractions. 

(RR48:36). Records of minor infractions are not maintained; they are shredded. 

(RR48:36). Minor infractions include: being out-of-place; giving things to 

another inmate; failing to obey a direct order; not going to school, etc. (RR48:38). 

Often, verbal confrontations between the inmate and a guard do not result in a 

disciplinary case. (RR48:38). Nelson testified death row inmates have been 

involved in assaults on other inmates, assaults on staff, sexual misconduct, 

possession of contraband, possession of weapons, possession of drugs, and 

possession of cell phones. (RR48:47). For demonstrative purposes, Nelson 
31

brought some weapons she has confiscated from inmates over the years made from 

materials like cardboard, parts of a typewriter, screws, and pencils. (RR48:59-62). 

Appellant’s Case 

 

Appellant testified regarding his upbringing, drug use and the instant 

offense. He testified he has been using crack cocaine for “about 14 years[]” and 

has experimented with alcohol and PCP. (RR49:8). He testified he began 

smoking marijuana at seven years of age. (RR49:9). He bought it with his 

allowance money. (RR49:9). 

 Appellant testified he was released from prison in July 2009 and relapsed in 

October of 2011. (RR49:11). He started smoking crack and “ice.” (RR49:11). 

At first, it was only on weekends. (RR49:12). He was still paying his bills. 

(RR49:12). His relapse was “devastating.” (RR49:16). It made him lazy and he 

fell into a deep depression. (RR49:16). “I stayed home in the dark, you know, just 

was embarrassed, ashamed.” (RR49:16). 

 On the night before the offense, Appellant went by himself to his brother 

Anthony’s wedding reception. (RR49:19). He stayed for about an hour. 

(RR49:24). Everybody was happy and having a good time, but Appellant felt like 

he was in his own personal hell. (RR49:19-20). Because he had missed so much 

work due to his drug use, Appellant had lost his job. (RR49:20). He also felt 

ashamed of his clothes and hair. (RR49:22). 
32

 Appellant went home, ate dinner, then walked back to the party. (RR49:25-

26). He told his cousin that he messed up his car when he put gas mixed with 

water in the tank. (RR49:26-28). The cousin gave him $30 and suggested how to 

fix it. (RR49:27-28). Appellant was drunk, so he used the money “to get high.” 

(RR49:28). For the next several hours, Appellant “[c]ontinued to smoke, sell a 

little bit, smoke, sell a little bit, smoke.” (RR49:28). He also had some Xanax to 

use when it was time to return home to babysit his daughter. (RR49:29). 

 At about 6 o’clock in the morning, Appellant walked back to his brother’s 

house. (RR49:30). He found a bottle of wine on the patio and drank the whole 

thing. (RR49:30). He “wanted money. I wanted to get high on crack.” 

(RR49:30). He saw a plastic water bottle. (RR49:30). He put lighter fluid in it. 

(RR49:30). He was “[j]ust going to take it and scare the person.” (RR49:30). He 

planned to “[p]our it on her.” (RR49:30). It was going to be a “scare tactic.” 

(RR49:31). Although he did not remember having a lighter, he acknowledged he 

would have had to have one to smoke crack. (RR49:32). 

Appellant walked across the street to the Whip-In. (RR49:31). He wanted 

to get the money and leave. (RR49:32). He did not intend to set Nancy on fire. 

(RR49:31). Appellant walked inside and “saw a lady.” (RR49:33). She was 

getting the mop bucket ready. (RR49:33). Appellant walked behind the counter. 

(RR49:33). Nancy followed him and told him he was not supposed to be behind 
33

the counter. (RR49:33). When she got close to him “I just poured the fluid over 

her head. At that time I remember she was - - started trembling.” (RR49:33). 

Appellant told Nancy to open the cash register because he wanted the 

money. (RR49:33). While she was opening the register, he took a lighter and 

some cigarettes. (RR49:33). He did not remember taking Nancy’s ring. 

(RR49:33-34). Nancy opened the register and moved away. (RR49:34). 

Appellant took the money. (RR49:34). He warned Nancy to stand back because 

he had a lighter. (RR49:34). She moved toward him and he “flipped [the lighter] 

once to try to scare her but that didn’t stop her.” (RR49:34). Nancy reached 

across him again. (RR49:34). It “spooked” Appellant so he flicked the lighter 

“again, twice, hoping that she would move back.” (RR49:34). That’s when 

Nancy’s clothes ignited. (RR49:35). Appellant was not thinking. (RR49:35-36). 

He was intoxicated; he had smoked nearly $100 worth of crack, consumed alcohol, 

and had taken a Xanax. (RR49:36). He did not think to help Nancy once she was 

on fire. (RR49:36). 

 Appellant “knew [he] had [done] a bad thing, so [he] just - - [he] just ran.” 

(RR49:41). He ran and hid in some bushes and smoked a cigarette. (RR49:41). 

He “got tired of laying in those bushes, so when [he] came out, that’s when [he] 

saw the police car parked at the end of the street.” (RR49:40-41). Appellant 
34

started running. (RR49:41). When he tired of running, he sat on a porch and 

waited for the police. (RR49:41). 

 Appellant remembered “tussling” with Marecle but did not remember his 

encounter with Denson. (RR49:41). He remembered stealing a bicycle. 

(RR49:41-42). He testified he thought the ride to the police station was “very 

short. It was like I just closed my eyes and opened my eyes and I was there.” 

(RR49:42). When he was in the patrol car, he did not understand what he had 

done. (RR49:43). 

 Appellant’s testified that his parents were married. (RR49:46, 90). His 

mother worked during the day and his father worked at night. (RR49:46). They 

took him to church and taught him right from wrong. (RR49:90). Appellant has 

two brothers, Anthony and Timothy. (RR49:47). Anthony went into the military. 

(RR49:47). Timothy “has been in prison half his life.” (RR49:47). 

 When Appellant was five years old, a cousin “put his penis in my mouth, 

[and] peed in my mouth.”8

 (RR49:50). Appellant’s cousins and uncle laughed at 

him. (RR49:50). When he was eight, the family friend he bought drugs from, 

fondled him. (RR49:48). “He pulled my penis out and wanted to suck it.” 

(RR49:48). Appellant “let him do it for a little while, but then [he] knew that 

                                                            

8

 Appellant testified he never said anything about childhood sexual abuse prior to counsel on the 

instant offense. (RR49:91). He never mentioned it during previous incarcerations or when he 

was hospitalized because he thought it “was irrelevant at the time.” (RR49:91). 
35

wasn’t right.” (RR49:48). He told him to stop. (RR49:48). Appellant still bought 

drugs from him. (RR49:48-49). Appellant used the fondling incident “to hold 

over [the friend’s] head.” (RR49:49). Appellant threatened to tell about the abuse 

and the man “gave [him] what [he] wanted.” (RR49:49). 

Appellant testified that when he dated Amy Armstrong they fought and 

argued. (RR49:53-54). He admitted that he hit Armstrong, but “I didn’t just hit 

her enough just to really hurt her, but just enough to make her stop hitting me[.]” 

(RR49:53). He testified he threw the burning log on her patio “to get her to come 

outside, get her to let me in. I had nowhere to go.” (RR49:54). 

 Appellant is married to Daphne Johnson. They have three daughters. 

Appellant and Daphne started dating when he was fifteen years old and married 

when they were eighteen. (RR49:52, 55). Appellant admitted that he used to hit 

Daphne. (RR49:55). He never hit her “enough to just hurt her, just enough to back 

her off.” (RR49:57). 

 Appellant dropped out of school when he was in eleventh grade. (RR49:46). 

He was never placed in special education classes, but he was in “basic classes.” 

(RR49:91). He took courses in auto body technology at Richland College. 

(RR49:91). Appellant testified he “learn[s] at a slow pace[,]” but he does not have 

a learning disability. (RR49:92). 
36

Appellant worked at a company called Sanden for about five years, from 

1997 until 2002. (RR49:58). He started on the assembly line, but was promoted 

four times, all the way to repairman. (RR49:59). He was eventually fired because 

he missed too many days of work. (RR49:58-59). At the time, he was using 

drugs on the weekends and “it carried on until the Mondays and Tuesdays[.]” 

(RR49:59). After he was fired, Appellant checked himself into Green Oaks 

Hospital to be treated for drug abuse. (RR49:59). He was there for a week and 

was diagnosed with depression. (RR49:60). After Green Oaks, he was sent to 

Summer Sky in Stephenville for further inpatient treatment. (RR49:60). 

Appellant spent 35 days at Summer Sky. (RR49:60). He “wasn’t ready [to leave], 

but [his] insurance ran out.” (RR49:61). He spent a week in a halfway house, then 

returned home to his wife. (RR49:61). Upon his return home, he stayed sober for 

a few weeks, then went back to using crack and marijuana and drinking alcohol. 

(RR49:61-62). 

Appellant testified he was “under the influence[]” when he stole Salmeron’s 

truck and “coming down off of [drugs]” during the theft of the Kwik Kar’s money 

and inspection books. (RR49:62, 75). Appellant testified he did not remember the 

incident with Pinzon. (RR49:118). Every time he has been in trouble, it was 

because of the drugs and depression. (RR49:99-100). He was depressed “because 

I couldn’t do more for my family and myself.” (RR49:99). He testified the first 
37

time he spoke with Daphne after the instant offense, he “couldn’t remember what 

[he] had done.” (RR49:80). Appellant confirmed his criminal history: 

 September 15, 1991: At 15, Appellant was arrested driving a stolen car. 

(RR49:100). 

 February 4, 1992: He was arrested for pushing a police officer. 

(RR49:100). 

 December 9, 1992: He was arrested for theft. (RR49:100). 

 August 13, 1993: He was arrested for assaulting Armstrong. 

(RR49:100-01). 

 September 8, 1993: He was arrested after he threw the burning object 

onto Armstrong’s patio. (RR49:101). 

 September 9, 1993: He was arrested for possession of marijuana. 

(RR49:102). This is the only drug charge Appellant has ever had. 

(RR49:102). 

 February 8, 1994: Appellant was arrested for outstanding warrants. 

(RR49:102). 

 April 16, 1994: He was arrested for an outstanding warrant on the 

marijuana charge. (RR49:102). 

 May 31, 1994: He was arrested for assault warrants. (RR49:103). This 

is when he bit Officers Mendoza and Ehrman. (RR49:103). 

 July 23, 1994: Appellant directed Daphne not to stop the car when the 

police were trying to pull her over. (RR49:103). 

 August 7, 1995: He was arrested for aggravated assault against Daphne’s 

sister, Courtney Johnson. (RR49:104). 

 June 9, 2002: He was issued a Class C assault citation for hitting 

Daphne. (RR49:105). 
38

 October 9, 2002: He was arrested for evading arrest. (RR49:105). 

 November 15, 2002: He was arrested for assaulting Daphne. 

(RR49:105). 

 July 3, 2003: Appellant did not remember walking up and hitting Daphne 

as she sat in the drive though at Braum’s. (RR49:106). But, he did not 

deny that the incident happened. (RR49:47). 

 September 7, 2003: He was arrested for assaulting Daphne. (RR49:107). 

 January 5, 2004: He was arrested for theft. (RR49:107) 

 June 19, 2004: He was arrested for robbing Salmeron. (RR49:107). 

 September 13, 2004: He violated Daphne’s protective order. 

(RR49:108). 

 

Appellant testified the reason he set Nancy on fire was because she was 

coming at him. (RR49:120). Appellant acknowledged that when he was arrested, 

he only told police that he had consumed cocaine and two beers prior to the 

offense. (RR49:120). He did not mention the bottle of wine or the Xanax. 

(RR49:120). “It was irrelevant. I was intoxicated.” (RR49:120). 

Photographs of Appellant’s tattoos were admitted into evidence. 

(RR49:130-33; SX#179-186). Appellant testified he got several of them while he 

was in prison. He acknowledged that he was never caught for those rule 

violations. (RR49:132). Recently, while incarcerated for the instant offense, 
39

Appellant had “Gift from God” tattooed around his collarbone. (RR49:132, 133). 

He did not get caught for this rule violation. (RR49:132). 

Appellant’s supervisor from Sanden testified that Appellant was a good 

worker. (RR49:137-38, 141). His only problem was his attendance. (RR49:142). 

Several co-workers testified Appellant was polite and friendly. (RR49:149-50, 

157, 162). They testified this offense was out-of-character. (RR49:153, 158-59, 

166). 

Daphne Johnson testified she is Appellant’s wife. (RR49:184). She testified 

when they married, they were immature. (RR49:186). They struggled financially, 

they did not communicate well, and their arguments got physical. (RR49:186). 

They hit each other. (RR49:217). Daphne did not remember reporting to police 

that Appellant had made threatening phone calls. (RR49:219). She did not 

remember her sister filing an aggravated assault charge against Appellant. 

(RR49:220). 

In an application for protective order, Daphne alleged that on December 9, 

2003, Appellant “became angry and punched [her] in the face.” (RR49:223; 

SX#193). She also wrote that Appellant “very frequently” did the following: 

called her names and criticized her; tried to keep her from doing something; going 

out with friends; gave her angry looks or stares; prevented her from having money 

for her own use; threatened to hit or throw something at her; pushed, grabbed, or 
40

shoved her; put down her family or friends; and, slapped, hit or punched her. 

(RR49:222; SX#193). In the affidavit, Daphne also detailed Appellant’s prior 

assaults. (RR49:223-24; SX#193). In November of 2003, Daphne locked 

Appellant out when he came home very late. (RR49:224). He beat and banged on 

the door. (RR49:224). When Daphne finally let him in, he pushed her. 

(RR49:224). In October of 2003, Daphne again locked the door when Appellant 

went out. (RR49:224). Appellant kicked in the door and punched her in the face 

and chest. (RR49:224). She suffered a black eye, scratches on her face and neck, 

and soreness and pain. (RR49:224). She was unable to work for two weeks. 

(RR49:224). Daphne wrote: 

Over the last nine years, Matthew has been physically violent and 

abusive to me. He has hit me, punched me, slapped me, kicked me 

once, strangled me, pushed and shoved me, and thrown me around. 

I’ve had bruises, black eyes, a bloody nose, a busted lip, scratches; 

soreness, swelling and pain. 

(SX#193). 

Daphne first became aware of Appellant’s drug use after his grandmother 

died. (RR49:187). He “would go off on binges” and disappear for a day or two. 

(RR49:188). Appellant would get physical with Daphne when he was high. 

(RR49:198). Daphne kicked him out of the house four to six times. (RR49:190). 

She tried to talk to him about his drug use. (RR49:195). He tried to stop using on 

his own. (RR49:195). Appellant also suffers from depression. (RR49:209). The 
41

depression became more frequent after the Kwik Kar incident. (RR49:210). In 

Daphne’s opinion, Appellant was high at the time of the offense. (RR49:243). She 

testified that Appellant “was an awesome father” to their three daughters. 

(RR49:192). 

Pharmacologist Dr. John Roache testified as an expert regarding illegal 

drugs and addiction. (RR50:27). Roache testified addiction is “a learning process 

that happens with repeated use of drugs of abuse.” (RR50:30-31). 

Cocaine is a stimulant. (RR50:33). It increases wakefulness and vigilance 

and produces feelings of intense euphoria and motivation. (RR50:34). Marijuana 

is a plant and a mild hallucinogen. (RR50:34). Phencyclidine or, PCP, is a 

hallucinogen. (RR50:35). A user feels “superhuman empowered.” (RR50:35). It 

can also produce “psychotic like effects, where you can have hallucinations, 

paranoia, and extreme agitation.” (RR50:35). Methamphetamine or “ice,” is a 

stimulant, which produces effects similar to cocaine. (RR50:35). Xanax is a 

benzodiazepine. (RR50:36). It is a sedative and used to treat anxiety. (RR50:36). 

Commonly, an addict will use multiple chemical substances. (RR50:37). 

This is referred to as poly-substance dependence or poly-substance abuse. 

(RR50:37). When an individual is under the influence, he may be more impulsive. 

(RR50:37). “[T]he addict becomes more driven for the immediate consequences 

of the drug experience and less thoughtful or conscientious or cognitively decisive 
42

about longer term consequences.” (RR50:37-38). Often, addicts have relapses 

after periods of sobriety. (RR50:43). 

Roache conceded that when Appellant checked himself into the hospital in 

2002, he was depressed because he was unable to quit using drugs. (RR50:44). 

Indeed, the discharge instructions indicate “The patient was profoundly depressed 

because of his inability to stop doing drugs, and having observed his many losses, 

including job, family, financial, and clearly self esteem.” (RR50:53; DX#22). 

Roache conceded that while incarcerated prior to trial, Appellant was not 

diagnosed with depression, but with poly-substance abuse and substance-induced 

mood disorder. (RR50:45). 

Although Roache did not review the surveillance video of this offense, he 

opined Appellant was intoxicated at the time he committed the offense. 

(RR50:45). Roache did not think it was “necessary[]” to review the surveillance 

video. (RR50:45-46). 

Frank AuBuchon testified as an expert on the Texas prison system. He 

described the various classification levels and the types of housing available. 

(RR50:146-47, 151, 158, 160-61). AuBuchon reviewed Appellant’s entire 

classification file, records of Appellant’s incarceration at the Dallas County Jail, a 

summary of Appellant’s extraneous offenses, and a summary of the instant offense. 
43

(RR50:145-46). AuBuchon testified Appellant will go into TDCJ as a G3 and will 

be placed in a high security unit. (RR50:157). 

 Dr. Jonathan Sorensen testified that he conducted an actuarial analysis to 

determine the probability that Appellant will be violent in prison. (RR51:22, 27; 

DX#25). Sorensen opined that Appellant “will fare better than the average 

incoming capital offender.” (RR51:30; DX#26). The factors that decreased 

Appellant’s risk of violence include: his age; his educational level; a lack of a 

disruptive group or gang affiliation; his prior prison behavior and classification 

level; and, the fact that he would be serving life without the possibility of parole. 

(RR51:30-31, 38, 42, 44). The factors that increased Appellant’s level of risk 

include: his prior incarceration; his prior assaults while incarcerated; and, the fact 

that his capital murder involved a contemporaneous robbery. (RR51:45-46, 20-

51). 

James Aiken, a prison consultant who has never worked in a Texas prison, 

testified that Appellant “fares low on the factors of providing unusual risk to staff, 

inmates, or the general public.” (RR51:58, 60, 61; DX#27). 

 Appellant’s older brother Timothy9

 testified about their family and their 

history of drug use. All three brothers used drugs. (RR50:74). Timothy was 

aware that Appellant used drugs at a young age. (RR50:73). Twice, he took away 

                                                            

9

 At the time of trial, Timothy was serving a 40-year sentence for a 2004 conviction for theft of a 

person and assault on a public servant. (RR50:67). 
44

Appellant’s marijuana. (RR50:75). Then, Timothy went to prison when Appellant 

was 15 years old and was gone for eleven years. (RR50:85). Timothy returned 

home for a couple of years, then went back to prison on two 40-year sentences. 

(RR50:85). 

 Timothy was present during one fight between Appellant and Daphne. 

(RR50: 80-81). Appellant tried to slap Daphne. (RR50:81). Timothy intervened 

and he and Appellant “had a fight - - a tussle.” (RR50:81). In Timothy’s opinion, 

Appellant was intoxicated at the time because “he was big and I’m smaller and I 

handled him - - I mean, real easy.” (RR50:82). 

 Appellant’s mother-in-law, Hazel Johnson, testified that Appellant is a good 

person and a good father. (RR50:88, 90, 92). In the month before the offense, 

Appellant was stressed and depressed. (RR50:93-94). Daphne’s aunt, Frances 

Wilson, testified she learned that Appellant had a drug problem about five years 

after he and Daphne were married. (RR50:100). She started talking to him about 

it in 2011. (RR50:101-02). Appellant was depressed and Wilson worried that he 

would harm himself. (RR50:103). Wilson was not aware of any physical abuse 

between Appellant and Daphne. (RR50:100). Daphne’s sister Courtney Johnson 

testified Appellant and Daphne’s relationship was “a normal relationship, just like 

any other married couple would have.” (RR50:111-12). She never saw Appellant 

physically abuse Daphne, but she would “hear stuff from [her] sister.” 
45

(RR50:112). Courtney was aware of Appellant’s drug problem and has seen him 

under the influence. (RR50:113). She did not recall the incident on August 7, 

1995 when Garland police were called to her apartment. (RR50:126-27). She did 

not recall telling police that Appellant pointed a gun at her. (RR50:128). She did 

not recall trying to drop charges with the district attorney’s office. (RR50:128). 

She has no recollection of the fact that Appellant pleaded guilty to that offense and 

served out a probation. (RR50:126-27). 

 A week before this instant offense, Courtney went with Appellant to the 

Garland Police Station when he asked them to “lock him up” because he was on 

drugs and wanted to avoid getting into trouble. (RR50:123). Without any active 

warrants, the police did not arrest him. (RR50:124). 

 Valerie Braziel is Appellant’s daughter Matduxx’s godmother. (RR50:166, 

169). They met in 2009 after Appellant’s release from prison. (RR50:169-70). 

Since that time, they have become friends. (RR50:170). In the time leading up to 

this offense, Appellant was withdrawn and Braziel felt as though he was depressed. 

(RR50:174). Braziel had no idea that he was a drug addict. (RR50:174). She was 

not aware of any domestic violence between Appellant and Daphne. (RR50:173). 

The State’s Case-in-Rebuttal 

 Nurse Kelly Nelson treated Nancy in the Burn Intensive Care Unit at 

Parkland Hospital. (RR51:71-73). Nancy was in pain. (RR51:74). She was 
46

unable to speak because she had a breathing tube. (RR51:74). Nelson 

communicated with Nancy using non-verbal pain scales “based on how the patient 

is acting or like body language, emotion.” (RR51:74). Nelson was able to ask 

Nancy “yes” or “no” questions and Nancy responded using hand signals and nods. 

(RR51:74-75). On May 23, Nancy was “in critical condition.” (RR51:75). 

Nancy was concerned about her prognosis. (RR51:75). “She attempted to 

communicate to me by using her finger and writing in the air, and she spelled out 

the word die, d-i-e. I clarified that that’s what she had spelled out to me, and she 

nodded, yes. . . . She nodded yes to the question, are you wondering if you are 

going to die.” (RR51:75). When Nelson explained all of the “interventions” that 

the medical team was performing, Nancy “was shaking her head no.” (RR51:76). 

Nancy “didn’t want all the interventions that we were providing for her.” 

(RR51:76). 

 The State published the recording from Officer Coffey’s dashboard camera. 

(RR51:81; SX#187). On the video, when the officers pull up to the Whip-In, 

Nancy is standing outside. (SX#187). She is still on fire. (SX#187). She can be 

heard screaming and pleading for help. (SX#187). 

 Nancy’s daughter-in-law, Elizabeth Harris, testified briefly regarding the 

effect of Nancy’s death on the family. (RR51:82). Elizabeth is married to Chris 

Harris, Nancy’s youngest son. (RR51:82). She was very close to Nancy. (RR51: 
47

84). Elizabeth and Chris have three daughters, Lorelei, Hanna, and Olivia. 

(RR51:84). Every Friday Nancy would pick up the girls from school and have a 

“Mimi day[.]” (RR51:84). Nancy was an “amazing” grandmother. (RR51:85). 

SUMMARY OF THE ARGUMENT 

Issue Nos. 1-7: The trial court properly denied Appellant’s Batson

challenges to the State’s exercise of peremptory challenges against seven minority 

veniremembers. Appellant has not met his burden to show that the State’s strikes 

were the product of racial discrimination. 

Issue Nos. 8-19: The trial court properly granted the State’s challenges for 

cause against 4 prospective jurors. These jurors possessed biases against the law 

the State was entitled to rely upon. Appellant has failed to show that he was 

deprived of his right to a fair and impartial jury. 

Issue Nos. 20-27: The trial court properly denied Appellant’s challenges for 

cause against 8 prospective jurors. All of the denials were proper and Appellant 

has failed to show that he was denied the use of a statutorily provided peremptory 

challenge. 

Issue Nos. 28-30: The trial court properly granted the State’s challenges for 

cause against 3 prospective jurors. These jurors possessed biases against the law 

the State was entitled to rely upon. Appellant has failed to show that he was 

deprived of his right to a fair and impartial jury. 
48

Issue Nos. 31-32: Appellant’s argument that he was deprived of a lawfully 

constituted jury lacks merit. Appellant has failed to prove that any of the trial 

court’s rulings on any of the challenges resulted in the seating of a juror who was 

biased or prejudiced. 

Issue No. 33: The evidence is sufficient to support Appellant’s conviction 

for capital murder. Contrary to the assertions in his brief, the record is replete with 

evidence showing his specific intent to kill Nancy Harris. Further, the evidence 

also shows that the murder took place during the course of committing or 

attempting to commit robbery. 

Issue No. 34-35: The trial court properly admitted the surveillance video of 

the instant offense as well as the still photographs from that video. While the 

video is graphic, it simply depicts the reality of Appellant’s crime. The probative 

value of this evidence was not substantially outweighed by its prejudicial effect. 

Issue Nos. 36-37: The trial court properly admitted the photographs of 

Nancy at autopsy and at the hospital prior to her death. The photographs helped 

the medical examiner and her physician in their testimonies, and they depict 

nothing more than the reality of Appellant’s brutal crime. 

Issue Nos. 38-40: The trial court properly admitted evidence of statements 

Nancy made prior to her death. These statements were admissible as excited 

utterances and/or dying declarations. Alternatively, any error is harmless. 
49

Issue No. 41: The trial court properly admitted evidence of Appellant’s 

actions after he fled the Whip-In. This evidence was admissible as sametransaction contextual evidence. Alternatively, any error is harmless. 

Issue No. 42: The trial court properly instructed the jury regarding voluntary 

intoxication. Appellant’s cross-examination may have led the jury to believe his 

actions were excused by his intoxication. 

Issue Nos. 43-44: The trial court properly admitted during the punishment 

phase, evidence of Appellant’s extraneous conduct with former girlfriend, Amy 

Franks. There is no evidence that the State acted in bad faith and Appellant has 

failed to show that he was surprised or that his defensive strategy would have 

changed in any way. 

Issue Nos. 45-48: The trial court properly admitted during the punishment 

phase, evidence of Appellant’s prior convictions. The State presented evidence 

tying Appellant to each of the complained-of exhibits. 

Issue No. 49: The trial court properly admitted the expert testimony of 

Warden Melodye Nelson as her testimony was relevant and helpful to the jury in 

deciding the first special issue. Alternatively, any error is harmless. 

Issue No. 50: The evidence was legally sufficient to support the jury’s 

answer to the future dangerousness special issue. Based upon the facts of the 

instant offense, as well as the evidence of Appellant’s past acts of crime and 
50

violence, a rational jury could find that Appellant would constitute a continuing 

threat to society. 

Issue Nos. 51-53: Appellant’s arguments regarding the punishment charge 

are inadequately briefed and multifarious. Regardless, the trial court properly 

denied his requested instructions and properly overruled his objections to the 

charge. 

Issue Nos. 54-65: Appellant’s admittedly meritless federal constitutional 

challenges to the Texas death penalty statute are presented only to preserve the 

complaints for federal habeas review. And while Appellant invites this Court to 

revisit its prior holdings against his position, he provides no new authority for this 

Court or the State to address. 

ARGUMENT 

STATE’S RESPONSE TO ISSUE NOS. 1 THROUGH 7: THE TRIAL COURT DID NOT ERR IN 

DENYING APPELLANT’S BATSON CHALLENGES.

 

In Issues 1 through 7, Appellant contends that the trial court erred in 

overruling his objection based on Batson v. Kentucky, 476 U.S. 79 (1986) to the 

State’s use of peremptory challenges on veniremembers Sheppard Brown, 

Kimberly Houston, Percy Phillips, Shirley Wilson, Telli White, Dionne Hashaway, 

and Christylynn Kyles. (Appellant’s Br. at 35-51). These contentions lack merit 

and should be overruled. 
51

Applicable Law 

The Texas Code of Criminal Procedure and the U.S. Constitution prohibit 

the use of peremptory challenges to exclude prospective jurors on the basis of race. 

Tex. Code Crim. Proc. Ann. art. 35.261(a) (West 2006); Batson, 476 U.S. at 85; 

Watkins v. State, 245 S.W.3d 444, 447 (Tex. Crim. App. 2008). Under Batson, a 

defendant must first make a prima facie showing that the prosecution exercised its 

peremptory challenges on the basis of race. Reed v. Quarterman, 555 F.3d 364, 

368 (5th Cir. 2009). If the defendant makes that showing, the burden shifts to the 

prosecutor to present race-neutral explanations for striking the jurors in question. 

Id. The court must then determine whether the defendant has carried his burden of 

proving purposeful discrimination. Id. 

At the second step of this process, the proponent of the strike need only 

tender an explanation that is race-neutral. Watkins, 245 S.W.3d at 447. The 

ultimate plausibility of that race-neutral explanation is to be considered as part of 

the third step of the analysis, in which the trial court determines whether the 

opponent of the strike (usually the defendant) has satisfied his burden of 

persuasion to establish by a preponderance of the evidence that the strike was 

indeed the product of the proponent’s racial discrimination. Id. Whether the 

opponent satisfies his burden of persuasion to show that the proponent’s facially 
52

race-neutral explanation for his strike is pre-textual, not genuine, is a question of 

fact for the trial court to resolve in the first instance. Id.

 This Court should not overturn the trial court’s resolution of the Batson issue 

unless it determines that the trial court’s ruling was clearly erroneous. See 

Watkins, 245 S.W.3d at 447-48. In assaying the record for clear error, vel non, this 

Court should consider the entire record of voir dire; it need not limit itself to 

arguments or considerations that the parties specifically called to the trial court’s 

attention so long as those arguments or considerations are manifestly grounded in 

the appellate record. Id. at 448. But this Court should examine a trial court’s 

conclusion that a facially race-neutral explanation for a peremptory challenge is 

genuine, rather than a pretext, with great deference, reversing only when that 

conclusion is, in view of the record as a whole, erroneous. Id. 

Analysis 

I. Appellant failed to establish a prima facie case of discrimination, but 

the issue is moot. 

 After the parties exercised their peremptory strikes, Appellant asserted that 

he “would have Batson objections to some of the State’s strikes.” (RR43:19). 

Appellant identified seven African-Americans veniremembers that the State struck. 

(RR43:19-20). The State argued that Appellant failed to establish a prima facie 

case. (RR43:20). Without ruling on the State’s objection, the trial court stated 

that it “would prefer that the State explain their strikes.” (RR43:20). The State did 
53

not object to the trial court’s failure to rule. Consequently, this Court must assume 

that Appellant satisfied his step-one obligation to make a prima facie case of 

purposeful discrimination and address only the second and third steps. See 

Watkins, 245 S.W.3d at 448; see also Chambers v. State, 866 S.W.2d 9, 23 (Tex. 

Crim. App. 1993) (where the State fails at trial to object to the trial court’s failure 

to rule on the defendant’s prima facie case, that issue becomes moot and it cannot 

be raised on appeal). 

II. The State’s race-neutral explanations 

 At the second step of the Batson process, the prosecutor need only tender an 

explanation that is race-neutral on its face. Purkett v. Elem, 514 U.S. 765, 768 

(1995) (indicating the State has a burden of production in the second step merely to 

present a facially valid explanation for its strike); Watkins, 245 S.W.3d at 447. 

Brown, Phillips, White, Hashaway, and Kyles 

 At the Batson hearing, the State explained that it stuck all qualified 

prospective jurors who ranked themselves as a “3” on their questionnaire. 

(RR43:20-21). Question No. 2 on the questionnaire asked: “With reference to the 

death penalty, which of the following statements best represents your feelings?” 

(RR4-RR34; RR36-RR42; Q. p. 1). A ranking of “3” indicates the following 

opinion: “Although I do not believe that the death penalty should ever be imposed, 

as long as the law provides for it, I could assess it under the proper set of 
54

circumstances.” (RR4-RR34; RR36-RR42; Q. p. 1). The State explained that it 

struck every person on the qualified-juror panel that selected number “3,” 

including Sheppard Brown (Juror 2A, an African-American male), Percy Phillips10

(Juror 60A, an African-American male), Telli White (Juror 329A, an AfricanAmerican female), Dionne Hashaway (Juror 911A, an African-American female), 

and Christylynn Kyles (Juror 1133A, an African-American female), Christina 

Moore (Juror 271A, a Caucasian female), Laura Luna (Juror 340A, a Caucasian 

female), Ronald Drake (Juror 759A, a Caucasian male), and Scot McComas (Juror 

1331A, a Caucasian male). (RR43:20-21; Brown, Juror 2A, Q. p.1; Phillips, Juror 

60A, Q. p.1; White, Juror 329A, Q. p.1; Hashaway, Juror 911A, Q. p.1; Kyles, 

Juror 1133A, Q. p.1; Moore, Juror 271A, Q. p.1; Luna, Juror 340A, Q. p.1; Drake, 

Juror 759A, Q. p.1; McComas, Juror 1331A, Q. p.1). The State also intended to 

strike Jerry Matlock, (Juror 1500A, a Caucasian male), the last juror in the 

alternate pool, on the same grounds. (RR43:21; Matlock, Juror 1500A, Q. p.1). 

The State’s reason was grounded in these jurors’ opinion about the death 

penalty and is race-neutral. Courts have found similar grounds as facially neutral. 

See, e.g., Mathis v. State, 67 S.W.3d 918, 924-25 (Tex. Crim. App. 2002) (holding 

prosecutor’s explanations—that he struck a juror because she was in favor of the 

                                                            

10 Percy Phillips ranked himself as a three and a five on this question. (RR43:20-21; Phillips, 

Juror 60A, Q. p.1). 
55

death penalty only in two specified circumstances and she felt the death penalty 

was imposed too frequently—were facially race-neutral). 

Kimberly Houston 

 At the Batson hearing, the State explained that it exercised a peremptory 

challenge against Houston because “she’s an attorney and we don’t think that 

attorneys are generally good on jury panels.” (RR43:21). When the State indicates 

that it challenged a prospective juror based on that person's type of employment 

and that the State has had poor success with that type of worker, the reason is a 

race-neutral explanation for exercising the peremptory strike. Middleton v. State,

187 S.W.3d 134, 142 (Tex. App.—Texarkana 2006, no pet.) (citing Barnes v. 

State, 855 S.W.2d 173, 174 (Tex. App.—Houston [14th Dist.] 1993, pet. ref'd)). 

Shirley Wilson 

 At the Batson hearing, the State explained that it exercised a peremptory 

challenge against Wilson because the State did not believe that Wilson was 

qualified. (RR43:20). Indeed, during individual voir dire, the State challenged 

Wilson for cause because Wilson vacillated on Special Issue No. One. (RR8:225-

26). The State questioned Wilson at length on this issue. (RR8:205-09). She 

testified that she could never answer Special Issue No. 1 “yes” because she 

believes there is no way to predict an individual’s future actions. (RR8:205-09). 

When questioned by the defense, Wilson initially repeated her earlier position, 
56

stating “I can’t see what you can really show to me [to prove] what the future is 

going to hold. I’m not for sure if I could answer that yes[.]” (RR8:220). Then, in 

contradiction, she said she could answer the first special issue in the affirmative. 

(RR8:221). The State’s challenge for cause was denied. (RR8:227). Given 

Wilson’s vacillation regarding Special Issue No. One, the State chose to 

peremptorily strike Wilson. Vacillating is a race-neutral reason for exercising a 

peremptory strike. See Cook v. State, 858 S.W.2d 467, 472 (Tex. Crim. App. 

1993) (finding no clear error in trial judge’s conclusion that the State’s peremptory 

strike of a vacillating juror was a satisfactory race-neutral reason). 

Conclusion

 The record supports all of the State’s proffered race-neutral explanations for 

exercising peremptory strikes against the seven prospective minority jurors. 

Therefore, the trial court did not clearly err in finding that the State satisfied its 

step-two burden of production to tender facially race-neutral explanations for its 

peremptory strikes. See Watkins, 245 S.W.3d at 451. 

III. Appellant has not established by a preponderance of the evidence 

that the strikes were the product of racial discrimination 

 Appellant has not shown purposeful discrimination by the State. Here, the 

defendant has the burden to persuade the trial court that the prosecutor’s 

explanations for the State’s strikes were incredible or disingenuous. Watkins, 245 

S.W.3d at 457. The focus of the Batson inquiry in this stage is on the genuineness, 
57

not reasonableness, of the asserted non-racial motive. Nieto v. State, 365 S.W.3d 

673, 676 (Tex. Crim. App. 2012). The question of pretext is a question of fact for 

the trial court to resolve, subject to reversal on appeal only for clear error. 

Watkins, 245 S.W.3d at 457. 

Appellant primarily contends that the State’s strikes must have been racially 

motivated because these jurors were qualified jurors and had some characteristics 

potentially favorable to the State’s position on the death penalty. (Appellant’s Br. 

at 36, 38, 39, 41, 42, 43, 45, 47). The jurors’ qualifications for jury service are 

irrelevant to the analysis, however. Factors relevant to determining whether 

purposeful discrimination has been proven include the following: 

1. whether the State utilized its option to shuffle the jury panels 

in a manner that supported an inference of race 

discrimination; 

2. whether the prosecutor’s office trying the case followed a 

formal policy to exclude minority venire members from jury 

service which was known to at least one of the prosecutors 

at trial; 

3. whether the State exercised its peremptory challenges to 

eliminate a far greater proportion of minority venire 

members than non-minority venire members; 

4. whether the reasons the State asserted for eliminating the 

minority venire members in question appeared to apply 

equally well to many non-minority venire members whom 

the State did not challenge; and 

5. whether the State directed questions expressly designed to 

elicit grounds for peremptory challenges disproportionately, 

in a manner that suggested an intent to single out minority 

venire members for elimination. 
58

Watkins, 245 S.W.3d at 448-49 (relying on Miller-El v. Dretke, 545 U.S. 231, 240-

64, 266 (2005)). This Court looks to the collective and cumulative impact of these 

non–exclusive factors in determining whether an inference of racial discrimination 

is so powerful that it overcomes the deference given to trial courts. See id. at 449, 

457. 

 An analysis of these factors demonstrates that Appellant’s claim of 

purposeful discrimination lacks merit. 

1. Jury Shuffle 

There is no evidence of jury shuffling in this case. The parties selected the 

group of qualified jurors from a June 21, 2013 special venire. (RR4). Appellant 

does not assert or demonstrate that the venire was shuffled or otherwise arranged in 

a manner to decrease the possibility of a minority member. 

2. Formal Policy Prohibits Discrimination 

 The Dallas County District Attorney’s office’s notorious formal policy of 

excluding minorities is a relic of a bygone era. It is common knowledge that the 

office policy of the last several years not only forbids such discrimination, it 

requires an investigation into sustained Batson challenges and authorizes discipline 

ranging from reprimand to termination. The State asks this Court to take judicial 

notice of this well-known fact. Tex. R. Evid. 201. 
59

3. Proportionality of Strikes 

Appellant argues that even one racially motivated peremptory strike violates 

Batson and he makes no effort to demonstrate a pattern of discriminatory strikes. 

He does not identify the size or racial makeup of the pool of qualified venire 

members. Nor does he analyze the number of strikes used by either side or how 

they were used. He merely argues that the State used 7 of its 12 peremptory strikes 

to eliminate 60% of the African-Americans on the qualified prospective jury panel, 

a statistic with which the State disagrees. 11 (Appellant’s Br. at 50). 

For statistical evidence to be relevant, data concerning the entire pool is 

necessary. See Medellin v. Dretke, 378 F.3d 270, 278 (5th Cir. 2004). By itself, 

the number of African Americans struck is an irrelevant statistic. Woodward v. 

Epps, 580 F.3d 318, 339 (5th Cir. 2009) (holding that the State’s striking 100% of 

the black jurors alone does not support a finding of discrimination and does not 

show any disparity in relation to the non-minority jurors). 

The data evinces no discriminatory intent by the State. The panel of 

qualified venire members consisted of 44 people. Of these, 12 (27%) were 

African-American, 27 (61%) were Caucasian, 4 (9%) were Hispanic, and 1 (2%) 

declined to indicate his race. The State exercised 15 peremptory strikes. 

                                                            

11 Appellant states in his brief that the State “used 7 of its 12 peremptory strikes to eliminate 60% 

of the African-Americans on the qualified prospective jury panel.” (Appellant’s Br. p. 50). In 

fact, the State exercised all 15 of its statutorily authorized peremptory strikes. The State 

presumes that Appellant’s reference to the State’s use of 12 strikes is a clerical error. 
60

(RR43:8-19). Seven of those 15 strikes (47%) were used on African-Americans, 7 

(47%) were used on Caucasians, and 1 (6%) was used on a Hispanic juror. 

(RR43:8-19). Appellant exercised 17 peremptory strikes. (RR43:8-19). Of his 17 

strikes, 2 were used on African-American jurors, 11 were used on Caucasian 

jurors, and 3 were used on Hispanic jurors. (RR43:8-19). The result was a 12-

member jury consisting of 3 African-American jurors and 9 Caucasian jurors, with 

2 Caucasian alternate jurors. 

The State’s use of 7 strikes on African-American venire members is not 

definitive of the inquiry in Batson’s third step; instead, a reviewing court must look 

at all relevant factors. See Watkins, 245 S.W.3d at 452 (upholding the trial court, 

despite the State’s disproportionate use of 6 of its 11 peremptory challenges 

against a racial group making up only 22% of the venire). Of the 44 venire 

members who could conceivably be chosen for the jury, 12 (27%), were AfricanAmerican. A random selection would yield either 3 or 4 African-American jurors 

in the 14 jurors selected (12 plus 2 alternates) (or 27% of fourteen, equaling 3.78 

jurors). See Watkins, 245 S.W.3d at 451-52 (holding a random selection from a 

22% African-American venire would yield 2 or 3 black jurors because 22% of 12 

jurors, plus 1 alternate, was 2.86). This jury panel had 3 African-American jurors. 

Thus, 27% of the qualified jurors were African-American and 25% of the 12-

person jury was African-American. This jury had the expected amount of African-
61

American members as would be expected from a random selection of the 44 

qualified jurors. Statistical analysis simply fails to show any racial discrimination. 

4. Comparative Analysis 

 Appellant contends on appeal that the prosecutor’s stated reasons are a 

pretext for racial discrimination because non-minority jurors with similar responses 

or characteristics were not struck by the State. (Appellant’s Br. at 50). At the 

Batson hearing, however, defense counsel failed to provide a comparative analysis 

on the jurors. (RR43:21-22). Counsel did not cross-examine the prosecutor about 

her reasons for not striking any similarly situated venire members. (RR43:20-23). 

As such, the prosecutor had no opportunity to respond to counsel’s allegations. 

Appellant should not be permitted to raise claims of disparate treatment for the first 

time on appeal. By failing to properly present this claim at trial, he denied the 

prosecutor the opportunity to create a record on the prosecutor’s strategy, and he 

denied the trial court an opportunity to rule on the claim. 

 Whether a prosecutor intended to discriminate on the basis of race is a 

question of historical fact properly decided in the trial courts. See Hernandez v. 

New York, 500 U.S. 352, 367-69 (1991). State procedural rules demand that 

allegations of disparate treatment by the prosecutor be raised in the trial court, so 

that they can be properly answered by the State and decided by that court. See 

Tex. R. App. P. 33.1(a); Watkins, 245 S.W.3d at 457-58 (Keller, P.J., concurring); 
62

Young v. State, 826 S.W.2d 141, 147-49 (Tex. Crim. App. 1991) (Campbell, J., 

dissenting). 

 The State acknowledges this Court’s majority opinion in Young that a noncapital defendant is not required to raise a comparative analysis in the trial court to 

have evidence of such considered on appeal. Young, 826 S.W.2d at 145-46. The 

Fifth Circuit has applied Young to a capital case and criticized this Court’s 

inconsistency in its application of the contemporaneous objection rule to Batson

claims in capital cases. Reed, 555 F.3d at 370. 

This Court should explicitly overrule Young. See generally Watkins, 245 

S.W.3d at 457-58 (Keller, P.J., concurring); Young, 826 S.W.2d at 147-49 

(Campbell, J., dissenting). Its majority—and the courts that rely on it—view the 

comparative analysis as merely an appellate argument that can be fairly addressed 

for the first time on appeal. Young, 826 S.W.2d at 146. In truth, it is a factual 

allegation of unfair treatment between jurors. If properly raised in the trial court, 

the prosecution’s response may provide additional facts for the appellate court to 

consider when reviewing the Batson ruling. If raised at trial successfully, the trial 

court can cure the error before trial even begins. If not raised at trial, the 

prosecutor’s mental process and the trial judge’s credibility decision concerning 

the non-strikes are simply omitted from the record. Jurors are not products of a set 

of cookie cutters, and the unexplained decision not to strike a non-minority juror 
63

who shares one trait in common with a minority juror is held against the State on 

appellate review. See, e.g., Miller-El, 545 U.S. at 244 (stating, “If, indeed, Fields’s 

thoughts on rehabilitation did make the prosecutor uneasy, he should have worried 

about a number of white panel members he accepted with no evident

reservations.”) (emphasis added). The prosecutor’s explanation of her voir dire 

strategy and the trial court’s ruling on the strategy is critical to a fair appellate 

review. 

 At the very least, a prosecutor should enjoy favor on appeal when the matter 

is not raised at trial, much like the presumption against a finding of ineffective 

assistance of defense counsel. In claims regarding violations of a client’s 

constitutional right to counsel, this Court has stated that “counsel should ordinarily 

be accorded an opportunity to explain her actions before being condemned as 

unprofessional and incompetent.” Bone v. State, 77 S.W.3d 828, 836 (Tex. Crim. 

App. 2002). A prosecutor’s credibility is the heart of Batson review, and she 

should be accorded no less of an opportunity to explain her actions. 

 This Court should conclude that the comparative analysis is not preserved 

for review or, alternatively, presume that the comparative analysis favors the 

prosecutor absent affirmative evidence on the record. 

 In any event, Appellant has wholly failed to establish that the potential jurors 

who are the focus of his Batson challenge were similarly situated to non-minority 
64

potential jurors who were not struck. 

Brown, Phillips, White, Hashaway, and Kyles

As argued above, the State struck each and every qualified prospective juror 

regardless of race who ranked him/herself as a “3,” indicating a belief that, 

“Although I do not believe that the death penalty should ever be imposed, as long 

as the law provides for it, I could assess it under the proper set of circumstances.” 

(RRR43:20-21). The State struck all 9 “3s” on the qualified prospective juror 

panel. (RR43:20-21). Appellant points to no evidence to the contrary. He 

cannot show disparate treatment of Brown, Phillips, White, Hashaway, and Kyles 

compared to accepted non-minority veniremembers. As such, Appellant has failed 

to show that the prosecutor’s explanation was a pretext for discrimination. 

Kimberly Houston 

The State explained that it struck Houston because she is an attorney12 and 

because “we don’t think that attorneys are generally good on jury panels.” 

(RR43:21; Houston, Juror 27A, Q. p.1). Houston was the only attorney on the 

qualified-juror panel. (RR43:21). As such, this rationale was a unique explanation 

for the strike, which applied to no other prospective juror. Importantly, during 

                                                            

12 The State expressed this same opinion during the voir dire of another juror, Sheppard Brown. 

In explaining the terms used in the special issues, the prosecutor commented that “That’s a whole 

lot of legal words. I’m going to try to talk to you about it in terms that - - that anybody would 

get, because we’re - - we’re not putting lawyers on this jury.” (RR5:30). She also stated that, 

“We’re going to put air conditioning techs and people who don’t know the law [on the jury]. 

And there’s a good reason for that, by the way. Lawyers are not always the smartest people in 

town.” (RR5:30). 
65

the Batson hearing, defense counsel did not challenge the prosecutor’s stated 

reason. Whether Appellant’s counsel personally felt such information should be 

the basis for a strike, is irrelevant; nothing indicates this was a pretext for 

discrimination. He cannot show that Houston was treated differently from nonminority venire members who the State accepted.

Shirley Wilson 

 The State struck Wilson because it did not believe that she was a qualified 

juror. During the State’s questioning, Wilson stated repeatedly that she did not 

believe that the State could ever present proof beyond a reasonable doubt that a 

defendant would be a future danger. The following exchange took place: 

[Prosecutor]: Now we’re talking about punishment, and that Special 

Issue Number 1, about what he’s going to do in the future, because 

you can see how that’s asking the jury to decide if this person is going 

to continue to constitute a continuing threat, if he’s going to continue 

to commit criminal acts of violence. Do you see that? 

[Wilson]: Yes, I see it. 

[Prosecutor]: I mean, basically we’re asking you to look into the 

future and decide whether it’s more likely than not he’s going to be a 

continuing threat to society. How are you going to decide that? 

[Wilson]: I can’t decide that. 

[Prosecutor]: You can’t decide that? 

[Wilson]: Huh-uh. 

[Prosecutor]: Is there anything that I could do to prove to you beyond 

a reasonable doubt - - 
66

[Wilson]: No. 

[Prosecutor]: - - that a person is going to do something in the future? 

[Wilson]: No. 

[Prosecutor]: Or is more likely than not going to do something in the 

future? 

[Wilson]: You can’t. 

[Prosecutor]: And why is that? 

[Wilson]: Because we just can’t determine what the future going [sic] 

to be and what that person is going to do. 

[Prosecutor]: Okay. So there’s - - there’s nothing that I could do, no 

evidence I could bring to you - - 

[Wilson]: No. 

[Prosecutor]: - - that would get you to answer Special Issue Number 1 

yes? 

[Wilson]: No. I don’t think there’s any - - you know, we just don’t 

know. We don’t know what a person would do, whether it’s good or 

bad in the future. 

[Prosecutor]: Sure. I mean, people can change? 

[Wilson]: Yes, they can. 

[Prosecutor]: But you don’t know 100 percent, but you’re telling me 

you - - there’s no way I’m going to be able to tell you - - or bring to 

you proof to convince you that it’s more likely than not that a person 

is going to do something in the future? 

[Wilson]: I just don’t - - no, I don’t think there’s any evidence just - - 

you can bring and just - - to tell me what the future hold for that 
67

person, if that person going to be able to do it or not, no. 

[Prosecutor]: Okay. And you understand that - - that the law would - 

- well, let me rephrase that. I guess - - I mean, I totally see where 

you’re coming from. We don’t have a crystal ball. 

[Wilson]: Huh-uh. 

[Prosecutor]: But in a trial situation there’s not - - no evidence, 

there’s nothing I could present to you to convince you of what the 

future is going to hold for somebody? 

[Wilson]: No. 

[Prosecutor]: So you’re automatically going to answer that Special 

Issue Number 1 no because there’s nothing I can do. You’re always 

going to say no to Special Issue Number 1? Do you see what that 

question is asking? 

[Wilson]: Let me just read it again. Maybe I’m - - I mean, maybe 

I’m - - I’m just saying I just don’t see how you can - - how - - I’m not 

saying you, but who can present what a person is going to do in the 

future when it come [sic] down to criminal acts. 

[Prosecutor]: Sure. And I’m not arguing with you. Please don’t - - 

please don’t think that. 

[Wilson]: So I guess I have to answer no. 

[. . . ] 

[Prosecutor]: Okay. And there’s nothing I assume that I could say to 

change your mind about that? 

[Wilson]: Probably not. 

(RR8:205-08). The prosecutor questioned Wilson at length on this issue and 

Wilson maintained her stance. (RR8:205-08). 
68

During questioning by the defense, counsel asked Wilson whether she could 

“keep an open mind to Special Issue Number 1 and wait until you hear all the 

evidence before you decide what the appropriate answer is[.]” (RR8:219). Wilson 

responded that, now that she understood that special issue, she would “have to just 

wait before I could just say this person is no good to nothing, anymore, period, 

there’s no chance.” (RR8:219). But that line of questioning did not ask whether 

she could ever find a defendant to be a future danger. This question simply asked 

whether she could keep an “open mind.” When defense counsel specifically asked 

whether she could answer Special Issue No. 1 “yes,” Wilson maintained, as she did 

under questioning by the State, that she could not say that she would do so. 

(RR8:220). She stated that “I can’t see what you can really show to me what the 

future is going to hold. I’m not for sure if I could answer that yes[.]” (RR8:220). 

Very shortly thereafter, however, she gave a response that seemed to indicate that 

she changed her mind and could answer Special Issue No. 1 in the affirmative: 

“Yes, I guess, if I’m presented with the evidence and here it is [. . .] then I would 

have to say yes, now that I understand the question better.” (RR8:221). 

Importantly, a review of Wilson’s testimony under questioning by the 

defense indicates that Wilson may have been confused about the fact that in order 

for the death penalty to be assessed, she would have to answer the first special 

issue “yes.” And, that in order to answer special issue No. 1 “yes,” she would 
69

have to find a defendant to be a future danger. Defense counsel asked Wilson 

whether she understood that life without the possibility of parole and death are the 

only two possible punishments. (RR8:215). She did. (RR8:215). Then, he asked 

whether she understood that “in order for someone to receive the death sentence, 

you would have to answer Special Issue Number 1 yes?” (RR8;216-17). Wilson 

said, “No. I read that over and over, but I didn’t know I needed to answer yes in 

order for a person to receive the death penalty[.]” (RR8:217). They discuss the 

terms “probability” and “criminal acts of violence.” (RR8:217-20). Then, she 

reiterates the position she took when under questioning by the State, “I can’t see 

what you can really show to me [to prove] what the future is going to hold.” 

(RR8:220). 

Wilson’s responses indicate that she was either unwilling or unable to 

answer Special Issue No. 1 in the affirmative or that she was a vacillating juror. 

Since the trial court denied the State’s challenge, the State exercised a peremptory 

challenge. Indeed, the State struck all jurors that it had unsuccessfully challenged 

for cause. Of the 44 qualified jurors, the State unsuccessfully challenged for cause 

4 potential jurors: Wilson (Juror 196A, an African-American female), Chad Davis 

(Juror 265A, a Caucasian male), Ronald Drake (Juror 759A, a Caucasian male), 

and Wanda Benjamin (Juror 1369A, an African-American female). Davis was 

later excused (RR31:5) as was Benjamin (RR41:28). The State struck Drake. 
70

(RR43:12). Appellant has failed to show Wilson was treated differently from 

accepted non-minority venire members. 

Conclusion

 Appellant has wholly failed to show that Jurors Brown, Phillips, White, 

Hashaway, Kyles, Houston, or Wilson were similarly-situated to non-minority 

jurors that were not struck by the State. 

5. Disparate Questioning 

 Appellant points to no instances of disparate questioning by the State. Cf. 

Miller-El, 545 U.S. at 256-57 (prosecutors used a graphic script when describing 

the death penalty to African-American jurors who were ambivalent to the death 

penalty more often than with white jurors who also were ambivalent). Nor is any 

disparate questioning apparent in the record. 

Conclusion 

 Appellant has not established by a preponderance of the evidence that the 

State’s exercise of its peremptory challenges against 7 African-Americans was the 

product of racial discrimination. Appellant has not shown that the State’s 

explanations did not apply equally to non-minority venire members that the State 

did not challenge, that the State directed questions expressly designed to elicit 

grounds for peremptory challenges disproportionately, or that a formal policy 

excludes minorities from jury service. The record before this Court supports the 
71

trial court’s resolution of the fact question of pretext. Consequently, the trial court 

did not err in denying Appellant’s Batson challenges. See Watkins, 245 S.W.3d at 

456-57. 

Issues 1 through 7 should be overruled. 

STATE’S RESPONSE TO ISSUE NOS. 8 THROUGH 19: THE TRIAL COURT DID NOT ERR IN 

GRANTING THE STATE’S CHALLENGES FOR CAUSE. 

 In Issues 8 through 19, Appellant contends that the trial court erred in 

granting the State’s challenges for cause against potential jurors Mary Boulos, 

Judith McDaniel, Terry Plank, and Floyd Stanmore. (Appellant’s Br. pp.51-64). 

He contends the exclusion of these jurors and the failure of the trial court to allow 

him to voir dire these jurors violated article 35.16 of the Code of Criminal 

Procedure as well as his right to counsel under the federal and state constitutions. 

See U.S. CONST. amends VI & XIV; Tex. Const. art. I, § 10; Tex. Code Crim. 

Proc. Ann. art. 35.16 (West 2006). Appellant’s contentions lack merit and should 

be overruled. 

Applicable Law 

 Article 35.16(b) of the Texas Code of Criminal Procedure provides as 

follows: 

A challenge for cause may be made by the State for any of the following 

reasons: 

1. That the juror has conscientious scruples in regard to the infliction 

of the punishment of death for crime, in a capital case, where the 
72

State is seeking the death penalty. 

2. That he is related within the third degree of consanguinity or 

affinity as determined under Chapter 573, Government Code, to 

the defendant; and 

3. That he has a bias or prejudice against any phase of the law upon 

which the State is entitled to rely for conviction or punishment. 

 

Tex. Code Crim. Proc. Ann. art. 35.16(b). A “bias against the law” is the refusal to 

consider or apply the relevant law. Sadler v. State, 977 S.W.2d 140, 142 (Tex. 

Crim. App. 1998). The test is whether the bias or prejudice would substantially 

impair the prospective juror’s ability to carry out his oath and instructions in 

accordance with the law. Threadgill v. State, 146 S.W.3d 654, 667 (Tex. Crim. 

App. 2004). 

On appeal, a reviewing court will overturn the trial court's ruling on a 

challenge for cause only if it clearly abused its discretion. Gonzales v. State, 353 

S.W.3d 826, 831 (Tex. Crim. App. 2011). The reviewing court gives great 

deference to the trial court’s decision on a challenge for cause because the trial 

judge was in the best position to observe the venire member during voir dire. Id. 

When the record reflects that a venire member vacillated or equivocated on her 

ability to follow the law, the reviewing court must defer to the trial judge. Id; 

Gardner v. State, 306 S.W.3d 274, 295 (Tex. Crim. App. 2009). 
73

Analysis 

 The trial court did not err in granting the State’s challenges for cause against 

prospective jurors Mary Boulos, Judith McDaniel, Terry Plank, and Floyd 

Stanmore. 

Mary Boulos 

 On her questionnaire, Mary Boulos wrote that she is in favor of the death 

penalty but that she does have “moral, religious, or personal beliefs that would 

prevent [her] from sitting in judgment of another human being[.]” (Boulos, Juror 

285A, Q. p. 1). In fact, on that questionnaire, Boulos made statements in four 

places in which she indicated that she does not believe she has the right to judge 

another human being: “I don’t feel that I have the right to judge someone’s future” 

(RR11:18; Boulos, Juror 285A, Q. p.2); the best argument against the death 

penalty is “judging whether a person has the right to live or not” (Boulos, Juror 

285A, Q. p. 2); “still don’t have the right to judge whether someone lives or dies” 

(Boulos, Juror 285A, Q. p.2); and “I do not feel that I have the right to judge 

whether or not someone is given the death penalty or life.” (Boulos, Juror 285A, 

Q. p.18). 

During voir dire, the prosecutor probed Boulos as to how she felt about 

sitting in judgment and answering questions in such a way that a death sentence 

would be imposed. (RR11:17-18). Boulos responded she was not comfortable 
74

because “[she’s] not somebody to sit there and judge somebody else[.]” 

(RR11:18). The prosecutor tried to get a definitive answer regarding Boulos’ 

ability to sit in judgment. The following exchange took place: 

[Prosecutor]: Okay. And like I told you in the beginning, the law is 

not going to require - - we’re not going to require that you sit in 

judgment of an individual in this situation - - 

[Boulos]: Yeah. 

[Prosecutor]: - - if it’s going to do violence to your conscience. 

[Boulos]: Yeah. 

[Prosecutor]: If it is something you cannot do because of personal, 

moral, or religious reasons; is that where you stand? 

[Boulos]: Yes. 

(RR11:18). The State challenged Boulos for cause. (RR11:19). Appellant 

objected and stated that Boulos had not said “that her feelings would impair her 

ability to answer the questions and follow the law.” (RR11:19-20). The trial 

court granted the State’s challenge. (RR11:20). The totality of Boulos’ voir dire 

shows Boulos could not sit in judgment of another individual and her statements 

support the trial court’s decision. To the extent, if any, that some of Boulos’ other 

remarks could be interpreted as contradictory, the trial court was the fact finder 

during voir dire and, thus, free to resolve her conflicting answers in the State’s 

favor. See King v. State, 29 S.W.3d 556, 568 (Tex. Crim. App. 2000) (particular 

deference is given to the trial court’s conclusion that venire member cannot follow 
75

law when venire member’s answers are vacillating, unclear, or contradictory). To 

conclude otherwise would controvert this Court’s policy of encouraging trial 

court’s to liberally grant challenges for cause rather than err by denying a 

challenge on a close question. Jones v. State, 982 S.W.2d 386, 394 (Tex. Crim. 

App. 1998). 

The record reflects that the State challenged Boulos for cause and that the 

trial court granted the State’s challenge. (RR11:19-20). Contrary to the statements 

in Appellant’s brief, there is no evidence that the trial court excused Boulos sua 

sponte. 

 Finally, on appeal, Appellant contends that he was denied the opportunity to 

question Boulos. (Appellant’s Br. p. 57). During voir dire when the State 

challenged this juror, however, Appellant did not request an opportunity to 

question Boulos. (RR11:20). See Tex. Code Crim. Proc. Ann. art. 35.17, § 2 

(stating that “In a capital felony case . . . on demand of the State or defendant, 

either is entitled to examine each juror on voir dire individually and apart from the 

entire panel, and may further question the juror on the principles propounded by 

the court.”). As a prerequisite to presenting a complaint for appellate review, 

however, the record must show that the complaint was made to the trial court by a 

timely request, objection, or motion and that the trial court either (1) ruled on the 

request, objection, or motion; or (2) refused to rule on the request, objection, or 
76

motion, and the complaining party objected to the refusal. Tex. R. App. P. 33.1 

(a). Given Appellant’s failure to request the opportunity to question Boulos, he 

failed to preserve any issue for this Court’s review. 

Judith McDaniel 

 On her questionnaire, Judith McDaniel wrote that she is not in favor of the 

death penalty. (McDaniel, Juror 317A, Q. p.1). Among other reasons, she 

believes in “the possibility of redemption” and in light of “Craig Watson’s [sic] 

push to find those wrongfully convicted,” McDaniel wrote she is against the death 

penalty. (McDaniel, Juror 317A, Q. p.1). McDaniel ranked herself as a “3,” 

indicating, “Although I do not believe that the death penalty should ever be 

imposed, as long as the law provides for it, I could assess it under the proper set of 

circumstances.” (McDaniel, Juror 317A, Q. p.1). She noted, however, “Maybe I 

should circle #5[,]” which provides that “I could never, under any circumstances, 

return a verdict which assessed the death penalty.” 

 Additionally, McDaniel wrote that although it is improving, she does not 

believe that the death penalty is applied fairly in Dallas County. (McDaniel, Juror 

317A, Q. p.4). She wrote that the death penalty is used too often in Texas. 

(McDaniel, Juror 317A, Q. p.4). 

 During voir dire, McDaniel reiterated her general opposition to the death 

penalty and gave answers suggesting considerable discomfort in participating in a 
77

process where an individual may be sentenced to death. McDaniel testified that 

even though her opinion about the death penalty has wavered over the years, “I 

really doubt that I - - I could be in favor of the death penalty.” (RR11:101). 

When asked whether she could participate in death penalty decision, she stated, “I 

don’t want to. I don’t - - I don’t think I can.” (RR11:104). The prosecutor 

explained the death penalty is not automatic. (RR11:105). The prosecutor 

explained the special issues and asked McDaniel if she could answer them in such 

a way that would result in a death sentence. (RR11:105-07). McDaniel testified 

that she “can’t honestly say, but I am pretty sure I would not go for the death 

penalty.” (RR11:107). When finally pinned down, McDaniel testified she could 

not guarantee the ability to set aside her personal feelings. (RR11:121). The 

following exchange took place: 

[Prosecutor]: I’m going to - - I - - “I don’t think” and “maybe” and 

“probably” are not - - are not words that lawyers are very good at 

accepting, and I apologize, but the record has to be very clear, so I’m 

going to ask it a different way. You don’t think you could. I’m going 

to turn that around and ask you, can you guarantee both sides of this, 

the State and the Defense, that you could set aside your personal 

feelings and be a juror in this case, even if it resulted in the death 

sentence? 

[McDaniel]: No, I can’t guarantee it. 

[Prosecutor]: Thank you. 

(RR11:121). The State challenged McDaniel for cause, which was granted over 

Appellant’s objection, based on the fact that “she would not be able to make that 
78

decision or at minimum could not guarantee us that she could set aside her 

personal feeling and assess a sentence that may result in execution.” (RR11:122). 

A venireperson may not be excused for her general opposition to the death 

penalty. Witherspoon v. Illinois, 391 U.S. 510, 522-23 (1968); Rachal v. State, 917 

S.W.2d 799, 810 (Tex. Crim. App. 1996). A veniremember is challengeable for 

cause, however, if his beliefs against capital punishment would prevent or 

substantially impair the performance of his duties as a juror in accordance with the 

court's instructions and the juror's oath. See Colburn v. State, 966 S.W.2d 511, 517 

(Tex. Crim. App. 1998). A juror must be able to set aside her personal 

preferences and biases to consider as death eligible all those defined as death 

eligible by section 19.03 of the penal code and article 37.071 of the criminal 

procedure code. Rachal, 917 S.W.2d at 812. 

Clearly, the totality of McDaniel’s voir dire testimony demonstrates that her 

beliefs about capital punishment would prevent or substantially impair the 

performance of her duties as a juror as required by law. She had a bias against the 

law governing a defendant’s eligibility for the death penalty. The record supports 

the trial court’s decision to grant the State’s challenge. See King, 29 S.W.3d at 

568. To conclude otherwise would controvert this Court’s policy as stated earlier. 

Jones, 982 S.W.2d at 394. 
79

Appellant’s contention that he was denied the opportunity to question 

McDaniel lacks merit. (Appellant’s Br. p. 59). During voir dire, when the State 

challenged this juror, Appellant did not request an opportunity to question her. 

(RR11:122). See Tex. Code Crim. Proc. Ann. art. 35.17, § 2. As such, any claim 

of that nature is not preserved for this Court’s review. Tex. R. App. P. 33.1 (a); 

Pena v. State, 285 S.W.3d 459, 463 (Tex. Crim. App. 2009). 

Terry Plank 

 In his questionnaire, Terry Plank wrote he is not in favor of the death 

penalty. (Plank, Juror 320A, Q. p.1). He wrote, “I feel no one has the right to 

take the life of another, including the State.” (Plank, Juror 320A, Q. p.1). In six 

separate places, Plank wrote that he does not believe in the death penalty. (Plank, 

Juror 320A, Q. p.1, 2, 3). In one instance, he described the death penalty as “state 

sanctioned murder.” (Plank, Juror 320A, Q. p.2). In contradiction, Plank ranked 

himself as a “3,” indicating that “Although I do not believe that the death penalty 

should ever be imposed, as long as the law provides for it, I could assess it under 

the proper set of circumstances.” (Plank, Juror 320A, Q. p. 1). 

 During voir dire, Plank testified he was “ambivalent” about the death 

penalty. (RR12:24). Ultimately, he conceded that he could not guarantee that he 

could set aside his personal feelings about the death penalty and follow the law. 

(RR12:29). The following exchange took place: 
80

[Prosecutor]: We’ve got to have people whose feelings are the death 

penalty is appropriate in some cases, based on the evidence. And 

yours is never. 

[Plank]: Right. 

[Prosecutor]: And so I would - - I would tell you that you’d be a great 

juror on a case where the punishment range was 5 to 99 or life or even 

on a capital murder case where we weren’t seeking the death penalty. 

Sounds to me like you could give the State a fair trial in the first part 

of the case on guilt/innocence, no issues there, but it’s the penalty 

phase that causes you some concerns because of your personal 

beliefs? 

[Plank]: Absolutely. 

[Prosecutor]: And if I had to ask you for today for a guarantee those 

[beliefs] wouldn’t interfere, you couldn’t guarantee me that? 

[Plank]: I don’t - - I know I disagree, so it’s hard to - - it’s hard to say 

that I would just all of a sudden agree. 

[Prosecutor]: Right. And - - and you don’t have to - - I’m not trying 

to change your opinion about the death penalty. 

[Plank]: Right. 

[Prosecutor]: Just because you don’t agree with it, doesn’t necessarily 

disqualify you from the jury pool. But you’ve got to be able to 

promise me today and guarantee me today that your feelings against 

the death penalty would not interfere with your ability to follow the 

law, listen to the evidence, and base your verdict only on the 

evidence, even if that meant that the death penalty was imposed. And 

you’ve kind of already told me that this isn’t - - this isn’t really for 

you, the death penalty; is that right? 

[Plank]: I believe so. 

[Prosecutor]: This won’t be the last jury summons you get, I promise. 

And hopefully the next one wouldn’t be on a case where the death 
81

penalty was at issue. And I know it’s hard to say what you could or 

couldn’t do in the future because you’ve never been put in those 

shoes, but I’m telling you, you don’t have to be put in that position, if 

you can’t guarantee me you could - - you could do it. 

[Plank]: Right. I don’t think I can guarantee anything, not - - not 

knowing, you know - - not ever having been in that position before. 

(RR12:27-29). The State challenged Plank for cause because “he cannot guarantee 

the State that he would be able to follow the law and base his verdict on the 

evidence because of his strong opposition to the death penalty.” (RR12:29). The 

totality of Plank’s voir dire testimony clearly demonstrates his beliefs about capital 

punishment would prevent or substantially impair his ability to follow the law. 

See Colburn, 966 S.W.2d at 517. The record supports the trial court’s decision to 

grant the State’s challenge. See King, 29 S.W.3d at 568. To conclude otherwise 

would controvert this Court’s policy as stated earlier. Jones, 982 S.W.2d at 394. 

Appellant argues that he was denied the opportunity to question Plank. 

(Appellant’s Br. p. 61-62). After the State challenged Plank for cause, Appellant 

requested the opportunity to question him. (RR12:30). The judge said that he 

would “give [the defense] a chance,” but that the court “[didn’t] think he’s 

qualified.” (RR12:30). Then he granted the State’s challenge. (RR12:30). 

Appellant objected. (RR12:30). He did not, however, renew his request to 

question Plank as the court had previously said it would allow. (RR12:30). 

Instead, he “object[ed] to not being able to rehabilitate him.” (RR12:30). 
82

Any error in denying Appellant’s request to question Plank is harmless. See

Tex. R. App. P. 44.2(b); Jones v. State, 982 S.W.2d 386, 391-92 (Tex. Crim. App. 

1998). With regard to the erroneous excusal of a venire member, reversal is 

required if the defendant was deprived of a lawfully constituted jury. See id. at 

394. As argued in detail above, the totality of Plank’s voir dire testimony clearly 

demonstrates his beliefs about capital punishment would prevent or substantially 

impair his ability to follow the law. See Simpson v. State, 119 S.W.3d 262, 266-67 

(Tex. Crim. App. 2003) (finding error harmless where “Given the venire member’s 

testimony, it is highly unlikely that the appellant would have been able to convince 

the juror to say otherwise or that the trial court would have abused its discretion in 

dismissing her for cause.”). Moreover, Appellant did not make a proffer of the 

questions that he would have asked Plank had he been given the opportunity. 

(RR12:29-30). As such, it cannot be determined whether he was denied the 

opportunity to properly question Plank. Appellant has failed to show that he was 

deprived of a lawfully constituted jury. 

Floyd Stanmore 

 In his questionnaire, Floyd Stanmore ranked himself as a “2,” which 

indicates that he believes the death penalty is appropriate in some murder cases and 

that he could return a verdict in a proper case which assessed the death penalty. 

(Stanmore, Juror 1118A, Q. p.1). Stanmore later contradicted this statement, 
83

however, when asked whether there was any reason why he would not want to 

serve as a juror in this case. He wrote, “I am not sure that I could vote for the 

death [penalty] [sic].” (Stanmore, Juror 1118A, Q. p18). In his questionnaire, 

Stanmore stated his concern that the death penalty is applied unfairly to minorities 

in Texas, including Dallas County. (Stanmore, Juror 1118A, Q. pp.2-3). Beyond 

the death penalty, Stanmore wrote that the biggest problem in our criminal justice 

system is that “I do not think that minorities are treated fairly always.” (Stanmore, 

Juror 1118A, Q. p.4). 

 During voir dire, Stanmore reiterated his concern about whether all 

defendants receive a fair trial. (RR32:70). He wondered “how many defendants 

or convicted individuals have actually been executed who were actually innocent.” 

(RR32:70). Stanmore testified as follows: 

I can’t [100%] [sic] say that I would be able to sit through the process, 

look at all the evidence, and listen to the evidence and still be able to 

come to a conclusion that the death penalty is warranted in this case. 

(RR32:72). The following exchange took place: 

[Prosecutor]: So just from what you’re telling me, it kind of sounds 

like, Mr. Stanmore, that you kind of did come in, you know, not 

knowing - - most people, when we say the word you come in with a 

bias or already come in with a preconceived notion, people think of 

that negatively. I’m not saying it in a negative way. But I’m saying it 

in such a way that as you sit here right now, you already kind of 

know, based on your reservation, how you’d feel or how you would 

lean toward, you know, a certain outcome of the trial. Like I said, 

maybe this particular case isn’t the one for you. You know, maybe 

another type of case that you don’t know as much information about 
84

or another type of case that the death penalty is nowhere near it. 

Would you say that’s a true statement? 

[Stanmore]: That’s pretty close to the truth, yes. I would say, yes. 

[Prosecutor]: And that as you sit here right now, and you said you 

can’t guarantee, let’s say the State, [100%] that you could base all of 

you[r] information on the facts and evidence that come in this case, 

that you’re still going to bring with you some of these reservations 

because you didn’t leave those at the door, did you? 

[Stanmore]: Not at all. 

[Prosecutor]: All right. 

[Stanmore]: That reservation is about the death penalty itself, not 

about conviction. 

(RR32:73-74). The prosecutor explained the procedure involved in a capital case 

and that the State believed that it had the type, quality, and quantity of evidence 

that would require the jury to answer the first special issue in the affirmative and 

the second special issue in the negative. (RR32:76-77). Stanmore stated that “it 

would bother [him] as an individual” to participate in the process. (RR32:78). At 

that point, the State successfully challenged Stanmore for cause. (RR32:78). 

Appellant argued that Stanmore’s “reservations” and his reluctance to participate 

were insufficient to sustain the State’s challenge. (RR32:79). 

The totality of Stanmore’s voir dire testimony clearly shows his beliefs 

about the criminal justice system and capital punishment would prevent or 

substantially impair his ability to carry out his obligations as a juror. At a 
85

minimum, Stanmore vacillated. Where the venire member either vacillates or 

equivocates on his ability to follow the law, the Court should defer to the trial 

court’s judgment on the challenge for cause. Granados v. State, 85 S.W.3d 217, 

231 (Tex. Crim. App. 2002). The record supports the trial court’s decision to grant 

the State’s challenge. See Segundo v. State, 270 S.W.3d 79, 94 (Tex. Crim. App. 

2008) (“We therefore defer to the trial judge, who can best determine, based upon 

the [venire member’s] tone and tenor, whether that person could follow the 

applicable law despite his views about the death penalty.”). To conclude otherwise 

would controvert this Court’s policy as stated earlier. Jones, 982 S.W.2d at 394. 

Appellant also contends that he was denied the opportunity to question 

Stanmore. (Appellant’s Br. p. 63-64). After the State challenged Stanmore for 

cause, Appellant objected to Stanmore being excused without the opportunity to 

question him. (RR32:79). Any error in denying Appellant’s request is harmless. 

See Tex. R. App. P. 44.2(b); Jones, 982 S.W.2d at 391-92. As argued in detail 

above, the totality of Stanmore’s voir dire testimony clearly shows his beliefs 

about the criminal justice system and capital punishment would prevent or 

substantially impair his ability to carry out his obligations as a juror. He was also a 

vacillating juror. See Simpson, 119 S.W.3d at 266-67. As above, Appellant did 

not make a proffer of the questions that he would have asked Stanmore had he 

been given the opportunity. (RR32:78-79). As such, it cannot be determined 
86

whether he was denied the opportunity to properly question Stanmore. Appellant 

has failed to show that he was deprived of a lawfully constituted jury. 

Conclusion

 The trial court did not abuse its discretion in granting the State’s challenges 

for cause regarding Boulos, McDaniel, Plank, and Stanmore. Even assuming their 

excusal was erroneous, it was harmless. The erroneous excusal of a venireperson 

warrants reversal only if the record shows that the error deprived the defendant of a 

lawfully constituted jury. Jones, 982 S.W.2d at 393. Appellant makes no such 

showing. Moreover, no evidence indicates that the jurors who served on 

Appellant’s jury were in any way biased, interested, or otherwise disqualified from 

serving. As a result, reversal is unwarranted. See Feldman v. State, 71 S.W.3d 

738, 749 (Tex. Crim. App. 2002) (holding any error in excusing venireperson was 

harmless absent any showing that she was excused based on general opposition to 

death penalty or that any juror was unfit for jury duty). 

 Issues 8 through 19 should be overruled. 

STATE’S RESPONSE TO ISSUE NOS. 20 TO 27: THE TRIAL COURT DID NOT ERR IN 

DENYING APPELLANT’S CHALLENGES FOR CAUSE. 

 In Issues 20 through 27, Appellant contends that the trial court erred in 

denying his challenges to 8 prospective jurors. In so doing, Appellant argues, the 

trial court violated his right to a fair and unbiased jury under the United States 

Constitution and article 35.16(c)(2) of the Texas Code of Criminal Procedure. 
87

Applicable Law 

A prospective juror may be challenged for cause if, among other reasons, he 

possesses a bias or prejudice in favor of or against the defendant or he possesses a 

bias against an aspect of the law upon which the State or the defendant is entitled 

to rely. See Tex. Code Crim. Proc. Ann. arts. 35.16(a)(9), (c)(2); Threadgill, 146 

S.W.3d at 667. 

Appellant has the burden of establishing that his challenge for cause is 

proper. See Feldman, 71 S.W.3d at 747. Before a venire member can be excused 

for bias, the law must be explained to him and he must be asked whether he can 

follow that law regardless of his personal views. Threadgill, 146 S.W.3d at 667. 

Appellant does not meet his burden of establishing that his challenge for cause is 

proper until he has shown that the prospective juror understood the requirement of 

the law and could not overcome his prejudice well enough to follow it. See 

Feldman, 71 S.W.3d at 747. 

When reviewing a trial court’s decision to deny a challenge for cause, the 

appellate court looks at the entire record to determine if there is sufficient evidence 

to support the ruling. Feldman, 71 S.W.3d at 744. The appellate court reviews a 

trial court’s ruling with “considerable” or “great” deference because the trial judge 

is in the best position to evaluate the prospective juror’s demeanor and was present 

to observe the juror and listen to his tone of voice. Threadgill, 146 S.W.3d at 667; 
88

Saldano v. State, 232 S.W.3d 77, 91 (Tex. Crim. App. 2007). Particular deference 

is given when the venire member’s answers are vacillating, unclear, or 

contradictory. Threadgill, 146 S.W.3d at 667. When the venire member is 

persistently uncertain about having the ability to follow the law, the reviewing 

court does not second guess the trial court and must defer to its decision. Gardner, 

306 S.W.3d at 295-96; Colburn, 966 S.W.2d at 517. The appellate court reverses a 

trial court’s ruling on a challenge for cause “only if a clear abuse of discretion is 

evident.” Colburn, 966 S.W.2d at 517. 

Harm from the erroneous denial of a defense challenge for cause occurs 

under the following circumstances: (1) a defendant exercises a peremptory 

challenge on a prospective juror whom the trial court erroneously failed to excuse 

for cause at the defendant’s request, (2) the defendant uses all of his statutorilyallotted peremptory challenges, and (3) the trial court denies the defendant’s 

request for an additional peremptory challenge to use on another prospective juror 

whom the defendant identifies as “objectionable” and who actually sits on the jury. 

Saldano, 232 S.W.3d at 91. When all of these conditions are met, the defendant 

has been wrongfully deprived of one of his statutory peremptory challenges in that 

he was forced to use a peremptory challenge to remove a prospective juror who 

should have been removed for cause. See id. If the defendant received additional 

peremptory challenges beyond the fifteen allotted by statute, he must show harm 
89

by proving that the trial court erroneously denied a number of defense challenges 

for cause equal to at least one more than the number of additional peremptory 

challenges granted. Escamilla v. State, 143 S.W.3d 814, 821 (Tex. Crim. App. 

2004). 

Analysis 

After the trial court qualified a panel of 44 prospective jurors, the parties 

asserted their peremptory challenges at a hearing, which was conducted on October 

15, 2013. (RR43). During this hearing, Appellant exhausted all 15 of his statutory 

peremptory strikes as well as 2 additional strikes granted by the court. (RR43:9-

18). He struck James Couch (Juror 80A), Craig Matthews (Juror 154A), Kevin 

Powell (Juror 179A), Kimberly Turvan (Juror 295A), Laura Carroll (Juror 433A), 

Molli Elliston (Juror 532A), Jerry Mace (Juror 615A), Rudy Ochoa (Juror 617A), 

Holly Sanders (Juror 636A), Debra Filler (Juror 701A), Sandra Gromacki (Juror 

756A), Sabastian Coleman (Juror 1023A), Jessica Magee (Juror 1149A), Sarah 

Wagler (Juror 1168A), Deemie Naugle (Juror 1196A), Raul Ibarra-Avila (Juror 

1351A), and Christina Salazar (Juror 1365A). (RR43:8-17). Appellant requested 

a third additional strike. (RR43:17). That request was denied and the next 

qualified prospective juror, Shonquidria Jenkins (Juror 1368A), was seated on the 

jury. (RR43:17-18). Appellant identified Jenkins as an “objectionable juror” and 
90

again requested an additional strike.13 (RR43:17-18). That request was denied. 

(RR43:18). After Jenkins, the next qualified prospective juror, Jerri Adams (Juror 

1393A), was seated on the jury. (RR43:18). Appellant did not identify Adams as 

an “objectionable juror.” (RR43:18). 

At trial, Appellant did not identify Powell, Matthews, Carroll, Elliston, 

Mace, Gromacki, Wagler, or Adams as “objectionable jurors.” (RR43:9, 10, 11, 

12, 15-16). The only juror he identified as objectionable was Jenkins. (RR43:17-

18, 23). And, of the pool of jurors identified in Issues 20 through 27, the only 

juror Appellant was forced to accept who actually sat on the jury and deliberated 

was Jerri Adams. 

Since Appellant received 2 extra peremptory challenges in addition to the 15 

allotted by statute for use on the pool in selecting 12 jurors, he must show that the 

trial court erroneously denied at least three of his challenges for cause. See, e.g., 

Saldano, 232 S.W.3d at 93 (noting that Saldano would have to show 3 erroneous 

denials because he received two extra peremptory strikes). Appellant has not met 

his burden. 

Issue #20: Kevin Powell 

 During voir dire, Appellant challenged Kevin Powell for cause because 

Powell answered in his questionnaire that he would give more credibility to police 

                                                            

13 Later in the hearing, Appellant explained that Jenkins was objectionable “primarily because 

she had indicated that she was a victim of family violence or domestic violence[.]” (RR43:23). 
91

officers. (RR8:56). Powell also answered “yes” to a question asking whether he 

believed that police officers are more likely to tell the truth than the average 

person. (Powell, Juror 179A, Q. p. 5). Appellant’s challenge was denied. 

(RR8:60). 

 A defendant may insist on jurors who will impartially judge the credibility 

of witnesses. Hernandez v. State, 563 S.W.2d 947, 950 (Tex. Crim. App. 1978). 

A venire member who believes a police officer would never lie under oath has an 

impermissible bias against the defendant under article 35.16(a)(9) of the Code of 

Criminal Procedure. Tex. Code Crim. Proc. Ann. art. 35.16(a)(9); Lane v. State, 

822 S.W.2d 35, 42 (Tex. Crim. App. 1991). 

During voir dire, the prosecutor questioned Powell regarding his view of 

police officer credibility. (RR8:15-16). Powell affirmed he could wait until a 

witness testifies before he judges their credibility. (RR8:15-16). Under 

questioning by defense counsel, Powell affirmed his belief that police officers are 

more likely to tell the truth than the average person. (RR8:41-42). Defense 

counsel explained the law required that “you have to start all witnesses off the 

same, that just because of a person’s occupation, they are not deemed more 

credible than anyone else.” (RR8:42). Powell affirmed he understood the law. 

(RR8:42). Counsel asked whether Powell would agree that the opinion expressed 

in his questionnaire is different than his testimony in court. (RR8:42). Powell 
92

responded, “Well, you asked me about my feelings, and that’s what I responded 

to.” (RR8:42). Apparently, Powell was attempting to distinguish that the opinions 

expressed in his questionnaire were his “feelings” as opposed to the law. The 

following exchange took place: 

[Defense Counsel]: Okay. And are your feelings that even knowing 

what the law says, that you give police officers more credibility than 

you do the average citizen? And as I said, there’s no such thing as a 

right answer or wrong answer. I just want to know how you feel. 

[Powell]: Right. Again, I understand, you know, what you’re saying 

to me, and - - and I base this on, you know, my feelings, but I can be, 

you know, fair with every witness that - - if I heard that testimony. 

(RR8:42-43). Later, defense counsel returned to the subject and asked whether, if 

he served on the jury and understood the law, Powell would give police officers 

more credibility. (RR8:44). Powell testified he “would look at everything that has 

been given and all the testimony that, you know, I hear and I believe I can give a 

good and fair response to it.” (RR8:44). 

The totality of Powell’s testimony indicates he would wait to hear a 

witness’s testimony before judging that witness’s credibility. To the extent that 

any of his responses may be interpreted as contradictory, this Court should defer to 

the trial court’s resolution of his responses. See Feldman, 71 S.W.3d at 744. The 

reviewing court must give great deference to the trial court’s decision on a 

challenge for cause based on the trial judge’s opportunity to observe the venire 

member during voir dire. Id. When the record reflects that a prospective juror 
93

vacillated or equivocated on her ability to follow the law, the reviewing court must 

defer to the trial judge. Gardner, 306 S.W.3d at 295. Given Powell’s assurances 

that he could follow the law, the trial court could have reasonably concluded that 

Powell was not biased against Appellant. See Lane, 822 S.W.2d at 45 (holding 

that the trial court did not abuse its discretion in denying a challenge for cause 

where, venire member said she would “evaluate a police officer[’s credibility] as 

she would any other [witness]”). 

Appellant also challenged Powell on the basis that he would automatically 

assess the death penalty after finding a guilty verdict on capital murder. In his 

questionnaire, Powell wrote he is in favor of the death penalty and “If a person is 

proven guilty of taking someones [sic] life in commission of a crime their life 

should be taken.” (Powell, Juror 179A, Q. p.2.). On its face, Powell’s response 

suggests he believed that all murders warrant a death sentence. The remainder of 

Powell’s questionnaire and voir dire indicates otherwise, however. 

During voir dire, the prosecutor explained that a verdict of guilty as to 

capital murder does not automatically lead to the death penalty. (RR8:25, 29, 34-

35). The jurors would then have to consider the special issues. (RR8:25-26, 29-

35). Powell affirmed that he understood. (RR8:25-26, 29-353). He affirmed that 

he would hold the State to its burden of proof on the first special issue. (RR8:37-

38). Importantly, Powell wrote in his questionnaire and affirmed during voir dire 
94

that in some circumstances, a life sentence is appropriate. (RR8:17; Powell, Juror 

179A, Q. p.2). Thus, although Powell believed that the death penalty was an 

appropriate punishment for murder he did not believe the death penalty should be 

automatic for every murder. His answer to the first special issue would be 

determined by an examination of all the evidence, rather than solely the guilty 

verdict. 

Lastly, Appellant contends that Powell should have been excused based on 

his belief that the death penalty is appropriate in circumstances involving robbery, 

sexual assault, torture, or abuse of children and the elderly. (Appellant’s Br. at 65). 

This complaint was not asserted at trial and is not properly preserved for this 

Court’s review. See Tex. R. App. P. 33.1(a). Regardless, Appellant’s contention 

lacks merit. During voir dire, Appellant briefly questioned Powell about his belief 

that other offenses should be eligible for the death penalty. (RR8:48-49). Powell 

affirmed his belief that the death penalty should be available for sexual assault, 

torture, or abuse of children or the elderly. (RR8:49). Defense counsel did not 

ask Powell whether this belief would interfere with his ability to follow the law in 

this case. (RR8:48-49). Indeed, counsel simply moved on to a different line of 

questioning. (RR8:49). As such, he failed to show that Powell was challengeable 

for cause on this basis. 
95

Based on the totality of the voir dire testimony, sufficient evidence supports 

the trial court’s ruling, and the court did not abuse its discretion in denying 

Appellant’s challenge for cause against Powell. No evidence sustains that Powell 

was biased in any way against Appellant or the law. During voir dire, Powell 

affirmed he would afford Appellant the presumption of innocence; he would hold 

the State to its burden of proof; he would not require the defense to present any 

evidence; he would not consider Appellant’s silence as evidence; he would wait to 

hear a witness’s testimony before determining credibility; and, he understood that 

the death penalty is not automatic for capital murder. (RR8:12-18, 25-26, 29, 34, 

37-38). Accordingly, Issue 20 should be overrruled. 

Issue #21: Craig Matthews 

Appellant challenged Craig Matthews for cause on the basis that he would 

be “predisposed or leaning toward answering Special Issue Number 1 yes” if he 

found Appellant guilty of capital murder. (RR9:111). The trial court stated: 

I don’t think a disqualifying question was asked him on that matter. 

And I think after hearing all of his testimony, I think he can follow the 

law and be a fair juror, so I’m going to deny your challenge. 

(RR9:111). The record supports the trial court’s determination. 

During voir dire, the prosecutor explained, “There are no automatics in this 

process.” (RR9:54). She further explained that after a verdict of guilt, jurors do 

not vote whether the defendant should receive a life or death sentence; the jurors 
96

would have to answer the special issues. (RR9:55). Matthews affirmed his 

understanding. (RR9:55-56). The following exchange took place: 

[Prosecutor]: Absolutely. And, you know, we ask you all these 

things before the law has been explained to you, and that’s why I just 

want to make sure that even though this is your personal belief that 

you are completely entitled to at all times, that you would then be able 

to - - and you’re not going to have to memorize this. You’ll see it 

again in the jury’s charge, the special issues. I just want to make sure 

that if the law is given to you by the Court, you would then be able to 

render your verdict based on the law and the evidence and not have 

any automatics. No automatic response because somebody is found 

guilty of the offense of capital murder and no matter how cold, 

horrible, and heinous, that you will be able to deliberate with regards 

to Special Issue Number 1 and make the State prove that to you 

beyond a reasonable doubt before answering it yes. 

 

[Matthews]: Yeah. 

(RR9:71). Matthews repeatedly affirmed his understanding that the verdict must 

be based on the law and the evidence and with no automatic answers. (RR9:56, 

58, 59, 60, 67, 68, 74, 81). When defense counsel asked Matthews what his 

“feelings on the death penalty” would be after he (on a hypothetical jury) found a 

defendant guilty of capital murder, Matthews responded: 

I don’t know. My understanding of the law as it’s been presented to 

me is that - - if those causes and consequences are proven, then - - 

then it’s an option relative to the two special issues. 

(RR9:85). Matthews accepted that the appropriate punishment for someone 

found guilty of capital murder could be life without parole. (RR9:85). The record 

reflects that Matthews’ examination of the law and evidence as related to the two 
97

special issues would control his answers rather than the verdict. As such, the trial 

court did not abuse its discretion by denying Appellant’s challenge for cause 

against Matthews. 

Issue 21 should be overruled. 

Issue #22: Laura Carroll 

 At trial, Appellant challenged Laura Carroll for cause because she was 

“mitigation impaired” and because “someone would have to convince her that life 

was the more appropriate verdict.” (RR15:74). The trial court denied this 

challenge. (RR15:74). The record reflects no bias against the law governing the 

mitigation special issue and, thus, supports the trial court’s ruling. 

 During voir dire, Carroll affirmed that if she were to find someone guilty of 

capital murder, she would not “be leaning toward the death penalty[.]” (RR15:49). 

She testified, “No. It would depend on the circumstances throughout the entire 

trial. I can’t make a presumption like that without having any kind of evidence to 

say that, yes, I would go either way.” (RR15:49). Carroll testified that Special 

Issue No. 2 “always matters.” (RR15:57). “There could be” evidence that would 

convince her that life is the appropriate punishment. (RR15:57). She testified she 

would “lean more closely toward the death penalty” (after having found someone 

guilty of capital murder and found him a future danger), “but [she] would have no 

problem listening to others and discussing why we should go with a life sentence 
98

instead.” (RR15:57-58). See Coleman v. State, 881 S.W.2d 344, 352 (Tex. Crim. 

App. 1994) (holding that the trial court did not err in denying a challenge for cause 

for an inability to consider mitigating evidence where the record showed that the 

prospective juror could listen to the evidence with an open mind). 

In Saldano, this Court stated that a veniremember is not challengeable for 

cause simply because he would place the burden of proof on the defense regarding 

mitigation. Saldano, 232 S.W.3d at 92 (citing Ladd v. State, 3 S.W.3d 547, 559 

(Tex. Crim. App. 1999)). Nevertheless, Carroll testified she would not require the 

defense to present such evidence. (RR15:58). The following exchange took 

place: 

[Defense counsel]: If you - - if - - on your hypothetical jury, you 

found somebody guilty of capital murder, you found beyond a 

reasonable doubt that they are going to be a threat in the future, is the 

Defense going to have to bring you some kind of evidence to convince 

you that life is appropriate at that point? 

[Carroll]: You would think that they would. I would think that they 

would. 

[Defense Counsel]: Would you require that? 

[Carroll]: No. 

(RR15:58). Defense counsel later returned to the topic and asked whether Carroll’s 

personal feeling, after having found someone a future danger, would be that the 

death penalty is appropriate. (RR15:71). Carroll testified, “It would be, yes.” 

(RR15:71). Counsel asked whether her feeling would remain unless “somebody 
99

can convince you otherwise[.]” (RR15:71). Carroll testified, “I would be, yes.” 

(RR15:71). Carroll never testified the defense must bring any evidence to 

convince her that life was the appropriate sentence. (RR15:71). The totality of 

Carroll’s testimony indicates she would be fair and impartial and would listen to all 

evidence in order to answer the two special issues. This Court should defer to the 

trial court’s resolution of any of her possible conflicting responses. See Feldman, 

71 S.W.3d at 744. 

 Issue 22 should be overrruled. 

Issue #23: Molli Elliston 

 At trial, Appellant challenged Molli Elliston for cause because, as to Special 

Issue No. 1, Elliston would only require one criminal act of violence. (RR16:56). 

The trial court denied Appellant’s challenge for cause. (RR16:56). 

 During voir dire, defense counsel questioned Elliston regarding Special 

Issue No. 1. When discussed “criminal acts of violence,” he asked Elliston 

whether she would require a single act of violence or multiple and instructed her 

that the term had no definition. (RR16:44). Elliston testified she would “have to 

think about that, if that truly means acts plural and not a singular act.” (RR16:44). 

She testified that it “seems a little bit like splitting hairs to whether it would be just 

one or multiple.” (RR16:45). The following exchange took place: 

[Defense counsel]: But that seems to be a hair that the legislature has 

split. 
100

[Elliston]: Okay. Well, I’d have to think about that. 

[. . .] 

[Defense counsel]: Well, do you want me to - - to - - to come back to 

it? Do you - - or - - because it’s - - it’s an important question, and it’s 

- - it’s what the legislature requires, that you would have to believe 

that the Defendant would commit criminal acts, plural, of violence. 

 

[Elliston]: I’m thinking. Criminal acts of violence - - If - - I - - if you 

think a person is - - is likely to commit another act of violence which 

would constitute a threat to society, then I’m having trouble 

distinguishing it it’s - - if you have - - if anybody can be so specific as 

saying, one - - they can do one future act of violence but not five. I 

don’t know how - - I don’t know how you ever - - I’m not sure they 

did intend that. I think it’s maybe - - I don’t know. I don’t know. If I 

- - if I thought - - if that act of violence is to kill somebody else, that’s 

a continuing threat to society. One person being killed is a threat, 

whether it’s a prison - - 

[. . .] 

[Defense Counsel]: And hopefully we can - - we can figure this out. 

Are you saying that if you thought there’s a probability that the 

Defendant would commit a criminal act, singular, that would be 

sufficient for you to answer Special Issue Number 1 yes, as opposed 

to criminal acts, plural? 

[Elliston]: Yeah, I think so. I think when you’ve already got a strike 

against you and if you - - if some - - I just don’t - - you’re - - you’re - 

- you’re speculating anyway at best whether or not they will commit 

future acts. It’s - - no one really knows that. So I do not see how you 

can break it down and say I think they’ll possibly commit one other 

act, but that would certainly be their limit. I just don’t think you can 

do that. If that’s what the legislature intended, I’m a believer in 

following the law, regardless of my beliefs, but I just got to - - I don’t 

- - I’d love to - - 
101

(RR16:46-47). Importantly, Elliston testified that she would have to “think about 

that.” (RR16:45). Elliston vacillated on this issue. (RR16:45-47). When the 

record reflects that a prospective juror vacillated or equivocated on her ability to 

follow the law, the reviewing court must defer to the trial judge. Gardner, 306 

S.W.3d at 295. 

 Issue 23 should be overruled. 

Issue #24: Jerry Mace 

 At trial, Appellant challenged Jerry Mace for cause for the following 

reasons: (1) he would presume future danger if the individual is guilty of capital 

murder; and (2) he is “mitigation impaired.” (RR18:68). Appellant’s challenge 

was denied. (RR18:68). The record supports the trial court’s ruling. 

The State must prove the future dangerousness special issue beyond a 

reasonable doubt. Tex. Code Crim. Proc. Ann. art. 37.071, § 2(c). Any venire 

member who would automatically answer the future dangerousness special issue in 

the affirmative or who would place the burden of proof on the defense is 

challengeable for cause under article 35.16(c)(2) for having a bias or prejudice 

against a law applicable to the case upon which the defense is entitled to rely. 

Feldman, 71 S.W.3d at 745. 

 Mace’s voir dire testimony shows he held no bias against the law governing 

the first special issue. During voir dire, the prosecutor explained the various 
102

aspects of the first special issue, particularly that the State must prove that the 

answer to that question is “yes.” (RR18:26-31, 30). She explained that while the 

jury could consider the facts of the case in answering the question, “it’s not an 

automatic answer. In other words, just because you’re convicted of capital murder 

doesn’t always mean that Special Issue Number 1 is yes.” (RR18:30). Mace 

indicated he understood. (RR18:31). He testified, “Well, you have to be 

concerned about [the facts of the offense], but you’ve got to listen to everything 

that went down and just determine then was it - - or is he going to do it again or 

more than likely will he do it again[.]” (RR18:31). Moreover, when he was 

questioned by the defense, Mace denied that a robbery indicates a person is a 

continuing threat to society. (RR18:57). Clearly, Mace understood the State had 

to prove future danger and he would hold the State to its burden. 

Appellant’s complaint that Mace is “mitigation impaired” is also refuted by 

the record. On his questionnaire, Mace was asked what he thought about the fact 

that “[s]ome people feel genetics, circumstances of birth, upbringing and 

environment should be considered when determining the proper punishment of 

someone convicted of a crime.” Mace wrote, “B.S.! I’m not concerned about 

how they were raised. Only that a horrific crime was committed.” (Mace, Juror 

615A, Q. p.6). Notably, this answer was given before Mace was instructed on the 
103

applicable law. During voir dire, defense counsel questioned Mace about his 

answer. The following exchange took place: 

[Defense Counsel]: You don’t have to use the - - use the word, but 

does the B.S. represent the way you feel? 

[Mace]: To bring it in as - - yes, in a sense. The - - the act itself was 

the individual’s - - at that moment, what transpired growing up and - - 

and such, probably got him to that point or got her to that point or 

helped to get to that point, but that didn’t - - that doesn’t come into 

play when it’s the act itself. 

[Defense Counsel]: Okay. And does it come into play when you’re 

considering punishment? 

[Mace]: It may, depending on Special Issue Number 2 and the 

mitigation circumstances. I don’t know. You know, if certain 

circumstances say that - - I’d have to - - I’d have to hear it. I don’t 

know. You know, I mean, I would be open to listening to it, and I 

definitely wouldn’t be qualified to say that, well, background and 

generics [sic] - - genetics have a lot of pull on this. I wouldn’t know 

that. I would expect you all to tell me what is going on here.” 

(RR18: 58-59). Mace testified he could consider mitigating circumstances, which 

could warrant a life sentence. (RR18:60). His testimony shows that he would 

consider the evidence but that he might not regard it as mitigating. His testimony 

does not show that he would not consider the evidence at all. That Mace could 

consider mitigating evidence is all that is constitutionally required. See Cordova v. 

State, 733 S.W.2d 175, 189 (Tex. Crim. App. 1987); see also Coleman, 881 

S.W.2d at 352 (holding that the trial court did not err in denying a challenge for 
104

cause for an inability to consider mitigating evidence where the record showed that 

the venire member could “listen with an open mind”). 

 Issue 24 should be overruled. 

Issue #25: Sandra Gromacki 

 At trial, Appellant challenged Sandra Gromacki for cause because Gromacki 

could not presume a life sentence is the proper punishment and “she leaned toward 

the death penalty.” (RR20:103-04). He also complained that “she would consider 

it if the Defendant failed to testify during the penalty phase in consideration of 

Special Issue Number 2.” (RR20:104). Appellant’s challenge was denied. 

(RR20:104). The record supports the trial court’s ruling. 

 The law does not require that a juror presume a life sentence is the proper 

punishment. See Gardner, 306 S.W.3d at 303. Nevertheless, the record shows 

Gromacki would apply such a presumption. During voir dire, defense counsel 

asked whether, if Gromacki found someone guilty of capital murder, she would 

“lean heavily toward the death penalty?” (RR20:81). Gromacki admitted that she 

would but testified that “[her] answer for that, though, would not be like 

[100%][.]” (RR20:81). Defense counsel later returned to this subject and 

Gromacki affirmed her previous stance. (RR20:94). Defense counsel asked 

whether Gromacki was “telling us that you could not follow the presumption that 

life without parole would be the appropriate punishment[.]” (RR20:95). Gromacki 
105

responded, “No[,]” that while she might lean toward the death penalty, she would 

still follow the presumption regarding life without parole. (RR20:95). 

 Next, Gromacki was asked whether she agreed that she would have to hear 

from Appellant in order to answer Special Issue No. 2 “yes.” (RR20:88). 

Gromacki testified, “Not - - not necessarily, no.” (RR20:88). Then, the following 

exchange took place: 

[Defense Counsel]: Well, there are people that come in and say, you 

know what, I could never find something sufficiently mitigating 

unless - - without hearing from him, without hearing if he was sorry or 

how he felt about it. Do you know what I mean? 

[Gromacki]: Uh-huh, yes. 

[Defense Counsel]: How do you feel about that? 

[Gromacki]: I could see that playing a part in the mitigating 

circumstances. 

[Defense Counsel]: So it is something that you would consider? 

[Gromacki]: Yes. 

[Defense Counsel]: If the Defendant didn’t testify in the penalty 

phase with regard to Special Issue Number 2, that is something you 

would take into consideration? 

[Gromacki]: Yes. 

[Defense Counsel]: Despite the fact that the law says he doesn’t have 

to testify? 

[Gromacki]: Yes. 
106

(RR20:89). The trial court later rehabilitated Gromacki. The judge explained the 

law and asked whether Gromacki could follow the law. (RR20:103). Gromacki 

said she could. (RR20:103). The judge then asked whether Gromacki, knowing 

the law, would require Appellant to testify as to Special Issue No. 2. (RR20:103). 

Gromacki said “no.” (RR20:103). 

 The totality of Gromacki’s testimony indicates that she would be fair and 

impartial and would listen to all evidence to answer the two special issues. This 

Court should defer to the trial court’s resolution of any possible contradictory 

responses. See Feldman, 71 S.W.3d at 744. 

 Issue 25 should be overruled. 

Issue #26: Sarah Wagler 

 At trial, Appellant challenged Sarah Wagler for cause on the basis that she 

could not fairly apply the presumption of innocence and that she “would require 

the Defense to do something.” (RR34:83). Appellant’s challenge was denied. 

(RR34:83). The record reflects that Wagler had no bias against the presumption of 

innocence. Although she would expect Appellant to present evidence in his 

defense, she would not require him to. 

 During voir dire, the prosecutor asked Wagler whether she was familiar with 

the Fifth Amendment. (RR34:17). Wagler responded, “That’s not to incriminate 

yourself, correct?” (RR34:17). The prosecutor explained a defendant cannot be 
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compelled to testify. (RR34:17). Wagler affirmed she understood. (RR34:17). 

The prosecutor asked what Wagler’s verdict would be if the State failed to prove 

its case and Wagler responded she “would have to acquit.” (RR34:17). The 

record is clear that Wagler could fairly apply the presumption of innocence. 

Then, defense counsel questioned Wagler regarding the fact that the defense 

has no burden of proof: 

[Defense counsel]: You understand that this table has absolutely no 

burden to present any evidence to the jury at all. 

[Wagler]: Right. 

[Defense counsel]: And you can’t require that. 

[Wagler]: Right. 

[. . .] 

[Defense Counsel]: But under the law, we don’t have to prove a thing 

to you. 

[Wagler]: Right. 

[Defense Counsel]: We don’t have to prove that Matthew Johnson is 

not guilty. We don’t have to prove that Matthew Johnson would not 

be a continuing threat to society. 

[Wagler]: Uh-huh. 

[Defense Counsel]: And we don’t have to prove any kind of 

mitigation to you. 

[Wagler]: Right. My reasonable expectation would be that if the 

State presented X, Y, and Z, that the Defense would come back and 

counter why X, Y, and Z did not exist or what made changes to X, Y, 
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and Z, not just sit there and let them make a statement and not say 

anything back. That’s what I meant by both good and bad - - 

[Defense Counsel]: Okay. 

[Wagler]: - - in play. 

[Defense Counsel]: But you understand the State has got the burden 

of proving it. We don’t have - - we don’t have to prove why the 

State’s wrong or that the State’s wrong or - - or anything like that. 

[Wagler]: Right. 

(RR34:60-61). Later, however, when defense counsel asked whether she would 

require the defense to “counter” the State’s evidence, Wagler testified, “[I]f there’s 

no counter, then to me, you’re accepting what’s being said.” (RR34:62). 

Essentially, Wagler would require the defense to “counter what is being said or 

what is being presented[.]” (RR34:62-63). Defense counsel explained the law did 

not place any burden on the defense. (RR34:64). Wagler testified she “would 

have an expectation that [the defense] would want to counter something that was 

negative.” (RR34:64). Without that “counter,” Wagler testified that “then it’s just 

my personal belief as to whether or not I happen to feel whichever person is 

speaking for the State is saying the truth or not the truth.” (RR34:65). Wagler 

testified she would require the defense to counter the State’s evidence or “assume 

the responsibility that I’m going to make a personal judgment on my own as to 

whether or not I believe what the State is presenting or not presenting.” 

(RR34:65). 
109

 The trial court interjected and instructed Wagler regarding the presumption 

of innocence and the fact that a defendant has no burden of proof. (RR34:66). 

Wagler affirmed she understood. (RR34:66). Wagler testified she could presume 

innocence and return a verdict of not guilty even if the defense did not present any 

evidence. (RR34:67). She also testified she could answer Special Issue No. 1 “no” 

without hearing anything from the defense. (RR34:72). 

 The totality of Wagler’s testimony shows that she could apply the 

presumption of innocence and that she would not require the defense to present any 

evidence. This Court should defer to the trial court’s resolution of any possible 

contradictory responses. See Feldman, 71 S.W.3d at 744. 

 Issue 26 should be overruled. 

Issue #27: Jerri Adams 

 At trial, Appellant challenged Jerri Adams for cause for the following 

reasons: (1) she would disregard trial court instructions that conflicted with 

Scripture; (2) she would extend more credibility to police officers; and, (3) she is 

“mitigation challenged based on her answers in her questionnaire and her answers 

to the Court.” (RR39:99). The trial court denied Appellant’s challenge, and with 

good cause. (RR39:99). 

 Adams testified that she attends church regularly and that her faith is very 

important to her. (RR39:61-62). She testified her religious beliefs do not conflict 
110

with the death penalty. (RR39:16). On her questionnaire, in response to a question 

asking if the death penalty should be available for murder in the course of robbery, 

Adams wrote that she agreed and that the “laws of the land should be followed as 

long as there is no contradiction with Scripture – the Bible gives several 

reasons/examples in both the old and new testaments where death was the 

punishment.” (Adams, Juror 1393A, Q. p.2). Defense counsel questioned Adams 

at length about this subject. (RR39:61-68). Adams clarified when she wrote the 

aforementioned statement in her questionnaire, she “meant in the bigger picture[.]” 

(RR39:62). She testified, “If the law says you can do it, I still don’t think you can 

do it, because I believe it is against [S]cripture.” (RR39:62). She mentioned 

abortion as an example. (RR39:62, 64). Adams “didn’t mean that [she was] not 

going to obey whatever the law is in the court for determining [a legal outcome].” 

(RR39:62). 

 Defense counsel again pursued the subject and at one point, Adams 

conceded if the instructed law conflicted with Scripture, Adams would follow 

Scripture. (RR39:64-65). Adams noted, however, she had never encountered 

such a situation and she could not imagine one. (RR39:65, 67). She testified, 

“There’s not any - - there’s not a law that I - - that I know of that’s going to not 

allow me to follow.” (RR39:66). Ultimately, Adams testified that she would 

follow the law applicable in a death penalty case. (RR39:68). 
111

In Gardner, a prospective juror testified, like Adams, that if the law violated 

Scripture, he would follow Scripture. Gardner, 306 S.W.3d at 298. Also like 

Adams, the juror testified he had never encountered such a situation. Id. This 

Court held the trial judge did not abuse its discretion in denying Gardner’s 

challenge for cause because the existence of “some unknown, hypothetical 

situation in which man’s law was in conflict with [the juror’s] understanding of 

Scripture does not mean that he was unable or unwilling to follow the law in a 

death-penalty case.” Id. at 299. The same logic applies here. Adams testified 

some unknown situation may cause the law to conflict with Scripture. (RR39:65-

66). Even so, she testified she would follow the law in a death penalty case. 

(RR39:68). The trial judge was in the best position to evaluate Adams’ responses 

regarding her ability to follow the law, and he found them credible. 

 On her questionnaire, Adams wrote police officers are more likely to tell the 

truth “because they are a group that has been culled from all that apply & they 

likely better understand the repurcussions [sic] of not telling the truth.” (Adams, 

Juror 1393A, Q. p. 5). During voir dire, she affirmed she would wait to hear what 

a witness had to say and would not automatically assume credibility based on one’s 

position as a police officer. (RR39:29-30). Defense counsel posed the question to 

Adams again later. (RR39:95). Adams reiterated that she would not give the 

officer more credibility. (RR39:95). She “would expect them to be telling the 
112

truth on things, but [. . .] I don’t think anybody else stepping up here would be any 

less credible than the officer just because he had a uniform.” (RR39:95-96). The 

totality of Adams’ testimony indicates she would wait to hear a witness’s 

testimony before passing judgment on credibility. Given her assurances to follow 

the law, the trial court reasonably concluded that Adams held no bias. See Lane, 

822 S.W.2d at 45. 

Finally, Appellant’s complaint that Adams was “mitigation challenged” 

lacks merit. Adams affirmed that if she heard evidence that was sufficiently 

mitigating, she would answer “yes” to Special Issue No. 2. (RR39:44, 46-47). She 

could not envision a situation in which she would answer that issue “yes,” but she 

could imagine the possibility. (RR39:46-47). She affirmed she would keep an 

open mind as to Special Issue No. 2. (RR39:53). In short, the record reflects no 

bias against Appellant on the mitigation issue, and Appellant fails to articulate one. 

At trial, Appellant did not specify how Adams was “mitigation challenged” 

except by “her answers in her questionnaire.” (RR39:99). Appellant failed to 

identify, however, which answers on Adams’ 19-page questionnaire indicated a 

bias. 

In his brief, Appellant argues Adams’ emotional state during voir dire shows 

a lack of objectivity to consider some of the evidence presented at trial. This 
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complaint was not asserted at trial and was not properly preserved. See Tex. R. 

App. P. 33.1(a). 

Issue 27 should be overruled. 

Conclusion

Appellant has not shown even one erroneous ruling on his challenges for 

cause, much less three erroneous rulings. See Gonzales, 353 S.W.3d at 837. 

Therefore, he has not shown this Court that he was denied the use of a statutorily 

provided peremptory strike. Issues 20 through 27 should be overruled. 

STATE’S RESPONSE TO ISSUE NOS. 28 THROUGH 30: THE TRIAL COURT DID NOT ERR 

IN GRANTING THE STATE’S CHALLENGES FOR CAUSE. 

 In Issues 28, 29, and 30, Appellant contends the trial court erred in granting 

three of the State’s challenges for cause over his objection against venire members 

Alan Avidon, John Cavner, and Douglas Green. (Appellant’s Br. pp.87-91). He 

contends the trial court abused its discretion in excusing these jurors. Appellant’s 

contentions lack merit and should be overruled. 

Issue #28: Alan Avidon 

 Prior to voir dire, the State notified the trial court that Avidon had not 

answered a question on his questionnaire truthfully. (RR13:4). Avidon checked 

“no” in response to a question asking “Have you . . . ever been accused, arrested or 

convicted (including probation, deferred adjudication, conditional discharge, fine, 

etc.) of a crime above the level of a traffic ticket.” (Avidon, Juror 247A, Q. p. 8) 
114

(emphasis in original). The State ran Avidon’s criminal history and discovered 

Avidon had “received deferred [adjudication] in Dallas County for a DWI back in 

1980, as well as an arrest in New York for possession of a dangerous drug.” 

(RR13:4-5). Given Avidon’s lack of candor, the State challenged Avidon for 

cause. (RR13:5). Appellant objected. (RR13:5). The trial court brought Avidon 

into the courtroom to inquire about his criminal history. (RR13:7). Avidon 

admitted to the two arrests. (RR13:9). He testified he “didn’t indicate it on the 

questionnaire thinking that it was, you know, so long that the statute of limitation 

passed.” (RR13:9). The court excused the juror and granted the State’s challenge. 

(RR13:10). 

 A challenge for cause may properly be asserted on grounds not specifically 

enumerated in article 35.16 if the challenge is based on facts that show the 

prospective juror would be “incapable or unfit to serve on the jury.” See Mason v. 

State, 905 S.W.2d 570, 577 (Tex. Crim. App. 1995). These challenges are 

addressed to the trial court’s discretion. See id. Avidon withheld critical 

information when he failed to truthfully answer the question regarding his criminal 

history. Importantly, Avidon did not simply forget the arrests. (RR13:9). Instead, 

he claimed he thought the statute of limitations had passed. (RR13:9). Avidon 

placed his veracity – and, therefore, his fitness to serve – in question. The trial 

court did not abuse its discretion by granting the State’s challenge for cause against 
115

Avidon. To conclude otherwise would controvert this Court’s policy as stated in 

connection with the State’s response to Issues 8-19. Jones, 982 S.W.2d at 394. 

 Regardless, even if this Court finds that the trial court erred in granting the 

State’s challenge for cause against Avidon (which the State does not concede), any 

alleged error is harmless. The erroneous excusing of a venire member will call 

for a reversal only if the record shows that the error deprived the defendant of a 

lawfully constituted jury. Jones, 982 S.W.2d at 394. Appellant has made no such 

showing. 

 Issue 28 should be overruled. 

Issue #29: John Cavner 

 During voir dire, the prosecutor explained the phases of a death penalty trial 

and asked Cavner whether he would be more inclined to answer the special issues 

in such a way that a life sentence would result. (RR17:122). Cavner responded, “I 

think there is - - that I would be constantly trying to prove to myself that is not the 

right answer. In other words, that would be my - - my - - my leaning, my bias 

probably.” (RR17:122). When asked whether he could guarantee he would set 

aside his personal feelings and beliefs and decide the case based on the facts and 

evidence, Cavner testified that he could not make that guarantee. (RR17:124-25). 

On the other hand, when questioned by the defense, Cavner testified he “can 

keep an open mind.” (RR17:127). He testified he could listen to the evidence but 
116

“I - - as I’ve said before, I know I’m going to have a, going in, bias[.]” 

(RR17:130). At one point, he finally said that if he “could find nothing mitigating, 

then [he could assess the death sentence].” (RR17:130). Apparently recognizing 

Cavner’s inconsistent answers, the trial court attempted to clarify Cavner’s 

responses. The following exchange took place: 

[Trial Court]: All I want you to do is tell me, and I know you will, 

how - - exactly how you feel and believe. Would - - will you always 

find mitigating evidence regardless of the evidence? 

[Cavner]: Well, I answered his question the way I did because I think 

it will be very difficult for there not to be mitigating evidence. 

[Trial Court]: Well, that’s all right, too. Can there ever be - - with 

your opinion about the death penalty and your opposition to it, again, 

if you want to look at Special Issue Number 2, can you - - will you 

ever be - - regardless of the evidence, will you ever be able to answer 

that issue yes, knowing death - - I’m sorry, no, knowing that the death 

penalty will result? Whatever you say that’s it. 

[Cavner]: I don’t believe I could do it. 

[Trial Court]: Well - - 

[Cavner]: I can’t do it. 

[Trial Court]: Any doubt in your mind? 

[Cavner]: No doubt. 

(RR17:132-33). The State challenged Cavner for cause because “he would never 

ever be able to answer Special Issue Number 2 in such a way that would result in 
117

the death sentence.” (RR17:134). The trial court granted the State’s challenge 

over Appellant’s claim that Cavner was qualified. (RR17:134). 

The totality of Cavner’s voir dire testimony clearly shows his beliefs about 

capital punishment would prevent or substantially impair the performance of his 

duties as a juror in accordance with the court’s instructions and his oath. 

See Colburn, 966 S.W.2d at 517. At a minimum, he was a vacillating juror and 

the Court should defer to the trial court’s judgment on the challenge for cause. 

Granados, 85 S.W.3d at 231. To conclude otherwise would controvert this 

Court’s policy as stated earlier. Jones, 982 S.W.2d at 394. 

 Issue 29 should be overruled. 

Issue #30: Douglas Green 

 Douglas Green gave multiple contradictory answers during voir dire. The 

State challenged him for cause and that challenge was granted. (RR21:122-23). 

In his questionnaire, in response to convictions based on circumstantial 

evidence, Green wrote that he agreed, “If DNA or forensic evidence to 100% 

conclusion.” (Green, Juror 597A, Q. p.3). When questioned by the prosecutor, 

Green affirmed that “[u]nder the circumstances with a death penalty, yes[,]” he 

would require the State to prove its case beyond all doubt. (RR21:98). He 

understood that this would be holding the State to a higher burden of proof than 

required. (RR21:97-98). When questioned by the defense, Green testified he 
118

would “follow the law” and affirmed he would not hold the State to a higher 

burden of proof. (RR21:115). Jurors may be challenged and removed for bias 

against the law, which includes the burden of proof. See Bodde v. State, 568 

S.W.2d 344, 349 (Tex. Crim. App. 1978) (finding juror properly excluded where 

juror insisted she would hold the state to a more stringent standard of proof than 

"beyond a reasonable doubt"). 

Next, the prosecutor explained that at trial, the State is required to prove 

certain elements for a conviction of capital murder. (RR21:75-77). She gave a 

hypothetical in which the State alleged a murder committed during the course of a 

sexual assault. (RR21:75, 77). In the hypothetical, the State proved the murder, 

but instead of sexual assault, proved a robbery. (RR21:74-76). Green testified that 

he “might” still convict of capital murder even though the State did not prove the 

offense as alleged. (RR21:78). The defense attempted to rehabilitate Green on this 

issue, but Green testified that “if [he] knew someone had committed murder, [he] 

would have a hard time[.]” (RR21:107-08). Then, he testified he would follow the 

law. (RR21:108). 

Finally, in his questionnaire, in response to a question asking what would be 

important to him in deciding whether a person should receive a life or death 

sentence, Green wrote, “Does the person have an evil heart.” (Green, Juror 597A, 

Q. p.3). When questioned by the prosecutor, he testified he would “rather hear the 
119

person tell me why than someone else speak for them.” (RR21:95). He testified, 

“I can’t imagine if I was in that - - in the other position that I wouldn’t want to tell 

my story.” (RR21:95). When defense counsel asked whether Green could follow 

an instruction on the Fifth Amendment right to silence, Green testified, “I could. I 

would feel it’s strange, but I - - I could.” (RR21:119). 

Green gave contradictory answers regarding several critical issues: (1) his 

ability to apply the proper standard of proof; (2) his ability to require that the State 

prove each and every element; and, (3) a defendant’s right to remain silent. The 

State challenged him on all three of these bases, and the trial court acted well 

within its discretion in granting the challenge. (RR21:122-23). Green was a 

classic vacillating juror. The Court should defer to the trial court’s judgment on 

the challenge for cause. Granados v. State, 85 S.W.3d 217, 231 (Tex. Crim. App. 

2002). 

Issue 30 should be overruled. 

STATE’S RESPONSE TO ISSUE NOS. 31 AND 32: APPELLANT WAS NOT DEPRIVED OF A 

LAWFULLY CONSTITUTED JURY. 

In Issues 31 and 32, Appellant contends the trial court’s rulings “in relation 

to overruling Appellant’s objections to the trial court’s actions in reference to each 

juror complained about previously” deprived him of a lawfully constituted jury 

resulting in violations of his rights under the state and federal constitutions, and 

under article 35.16 of the Code of Criminal Procedure. (See Appellant’s Br. pp. 
120

92-93). He fails to specify, however, whether he is referring to the trial court’s 

denial of his challenges for cause or the granting of the State’s challenges for 

cause. 

In any event, Appellant has failed to show he was deprived of a lawfully 

constituted jury. He has failed to show the trial court’s rulings on any of the 

challenges resulted in the seating of a juror who was biased or prejudiced. If an 

appellant does not present record evidence demonstrating that the trial court’s error 

deprived him of a jury comprised of legally qualified jurors, he has suffered no 

harm and the reviewing court should presume the jurors are qualified. See Gray v. 

State, 233 S.W.3d 295, 301 (Tex. Crim. App. 2007). 

Issues 31 and 32 should be overruled. 

STATE’S RESPONSE TO ISSUE NO. 33: THE EVIDENCE IS LEGALLY SUFFICIENT TO 

SUPPORT APPELLANT’S CONVICTION FOR CAPITAL MURDER. 

 In Issue 33, Appellant contends that the evidence is insufficient to support 

his conviction for capital murder. Specifically, Appellant contends that he lacked 

the specific intent to kill Nancy and that the State failed to show a nexus between 

the murder and the theft. (Appellant’s Br. p. 94). Appellant’s contentions lack 

merit and should be overruled. 

Standard of Review

When reviewing a challenge to the sufficiency of the evidence, an appellate 

court considers all the evidence in the light most favorable to the verdict to 
121

determine whether any rational trier of fact could have found the essential elements 

of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 

(1979); Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010). This 

standard gives full play to the responsibility of the trier of fact to resolve conflicts 

in the testimony, to weigh the evidence, and to draw reasonable inferences from 

basic facts to ultimate facts. Jackson, 443 U.S. at 319. The appellate court does 

not reweigh the evidence or substitute its judgment for that of the factfinder. King, 

29 S.W.3d at 562. 

Applicable Law 

A person commits the offense of capital murder if he intentionally commits 

murder in the course of committing or attempting to commit robbery. Tex. Penal 

Code Ann. § 19.03 (a)(2). A person commits robbery if, in the course of 

committing theft, he intentionally, knowingly, or recklessly causes bodily injury to 

another, or intentionally or knowingly threatens or places another in fear of 

imminent bodily injury or death. Id. § 29.02(a). A person commits theft if he 

unlawfully appropriates property with intent to deprive the owner of the property. 

Id. § 31.03(a). 

The State must prove a nexus between the murder and the theft, i.e., that the 

murder was committed in order to facilitate the taking of the property. See Cooper 

v. State, 67 S.W.3d 221, 222-23 (Tex. Crim. App. 2002); Hooper v. State, 214 
122

S.W.3d 9, 13 (Tex. Crim. App. 2007) (in reviewing the sufficiency of the evidence, 

the appellate court should look at events occurring before, during and after the 

commission of the offense and may rely on actions of the defendant which show an 

understanding and common design to do the prohibited act).

Analysis 

The following evidence proves that Appellant intended to kill Nancy Harris 

and that the murder occurred to facilitate the taking of property: 

 Appellant walked into the Whip-In carrying a lighter and a plastic bottle 

filled with a flammable liquid. 

 He walked straight to the sales counter, then around and behind into the area 

reserved for employees. 

 When Nancy attempted to push him back, Appellant poured the contents of 

the plastic bottle, the flammable liquid, over Nancy’s upper body. 

 Appellant stood directly behind Nancy as she tried to open the register. He 

took two lighters from a display to the right of the register. He took two 

packages of cigarettes from an overhead dispenser. He took the ring Nancy 

was wearing on her right hand. When Nancy opened the register, Appellant 

took all of the cash and some of the coins. 

 After Appellant took the money from the register he flicked his lighter and 

the flame ignited the liquid on Nancy. 

 

 While Nancy, engulfed in flames from her shoulders up, ran out from behind 

the counter, Appellant calmly walked out of the store with his plastic bottle 

and the stolen property. On his way out, he stopped to take some candy and 

stuff it in his pocket. 

 Appellant made no effort to help Nancy extinguish the flames. 

 
123

 Appellant fled the store and hid from police in the neighborhood behind the 

Whip In. 

 Nancy told police that “a black male, heavy-set, short dark hair, and a 

chubby face, came into the store and demanded money from her. She 

advised he took the money and then he poured something on her. She didn’t 

know what - - what it was, and then he lit her on fire.” (RR45:82). 

 Nancy was rushed to the hospital. She suffered second-, third-, and fourthdegree burns over forty percent of her body. 

 Five days after Appellant set her on fire, life support was discontinued. 

Nancy died as a result of her burns. 

 Appellant was arrested shortly after the offense in the neighborhood behind 

the Whip-In. When he was handcuffed, he asked the officers what had taken 

them so long. He commented that they were “getting slow.” (RR44:186). 

 Three lighters, Nancy’s ring, coins, and cash were recovered from 

Appellant’s pocket after his arrest. 

 A plastic bottle was found in the grass behind the Whip-In. DNA on the 

plastic water bottle was identified as Appellant’s. 

 Testing of the contents of the plastic water bottle and Nancy’s clothing 

showed a medium petroleum distillate of the primary recovery and a lower 

level of isopropyl alcohol. A medium petroleum distillate is an ignitable 

fluid, which is found in charcoal starter fluid, paint thinner, and mineral 

spirits. 

Despite the aforementioned evidence, Appellant nevertheless contends that 

no evidence proves he went to the Whip-In “to murder the Complainant in order to 

rob her[,]” and that, as such, no evidence shows his specific intent to kill. In 

support of his contention, he cites his own testimony from the punishment phase 

that he had no intent to murder Nancy. (Appellant’s Br. p. 96). In a bifurcated 
124

trial before a jury on a plea of not guilty, however, “consideration of the evidence 

is necessarily limited to the evidence before the jury at the time it rendered its 

verdict of guilt.” Barfield v. State, 63 S.W.3d 446, 450 (Tex. Crim. App. 2001). 

Absent a judicial confession, evidence from the punishment phase of a trial will 

not be considered in determining the sufficiency of the evidence to support a 

conviction. Munoz v. State, 853 S.W.2d 558, 560 n.3 (Tex. Crim. App. 1993). 

Accordingly, because Appellant’s punishment-phase testimony was not before the 

jury when it found Appellant guilty of capital murder, it should not be considered 

in determining the sufficiency of the evidence to support his conviction. 

Regardless, the evidence overwhelmingly contradicts Appellant’s 

punishment testimony and argument that he lacked the specific intent to kill. 

“Intent can be inferred from the acts, words, and conduct of the accused.” Patrick 

v. State, 906 S.W.2d 481, 487 (Tex. Crim. App. 1995) (citing Beltran v. State, 593 

S.W.2d 688, 689 (Tex. Crim. App. 1980)). Appellant walked in to the Whip-In 

armed with his plastic bottle of flammable liquid and his lighter. The first thing 

that he did when he walked behind the counter was pour that liquid over Nancy’s 

upper body. Immediately after he robbed her, he flicked his lighter and ignited the 

fluid on her body. That Appellant actually poured the lighter fluid over Nancy and 

later ignited it supports a conclusion of specific intent. Notably, he made no effort 

to call an ambulance or extinguish the flames. He simply left by walking casually 
125

out of the store as his elderly victim was left to contend with the flames now 

engulfing her entire upper body. Based on this evidence, a rational jury could have 

found Appellant intended to kill Nancy. See Patrick, 906 S.W.2d at 487 (finding 

evidence legally sufficient to prove intent to kill in light of the extent of the 

complainant’s injuries, how the injuries were inflicted, and the relative size and 

strength of the parties). 

Moreover, the evidence was sufficient to prove the murder took place during 

the course of committing or attempting to commit robbery. Appellant argues the 

theft was unrelated to the murder and was an afterthought, and thus is insufficient 

to prove capital murder. (Appellant’s Br. at 97). Appellant’s argument is once 

again contradicted by the surveillance video. The video shows that Appellant went 

into the Whip-In that morning with his plastic bottle of flammable liquid and his 

lighter. He was fully prepared to commit robbery. Once inside the store, he 

poured the fluid over Nancy. Then he took the lighters, the cigarettes, Nancy’s 

ring, and the money. After he had what he wanted and had no further need for 

Nancy, he flicked his lighter and the flame ignited the fluid on her body. This 

gave him the opportunity to flee the scene. In short, the murder and the robbery 

are closely intertwined. Appellant poured the lighter fluid over Nancy so that she 

would cooperate and open the register. He waited to set her on fire until after she 

opened the register and he had a chance to take all that he wanted. Once he had 
126

what he wanted, he set Nancy on fire and left. The robbery was anything but an 

afterthought. 

Considering all the evidence in the light most favorable to the jury’s verdict, 

a rational trier of fact could have found the essential elements of capital murder 

beyond a reasonable doubt. As such, the evidence is legally sufficient to support 

the conviction. 

Issue 33 should be overruled. 

STATE’S RESPONSE TO ISSUE NOS. 34 AND 35: THE TRIAL COURT PROPERLY 

ADMITTED THE SURVEILLANCE VIDEO OF THE INSTANT OFFENSE AS WELL AS STILL 

PHOTOGRAPHS FROM THAT VIDEO. ALTERNATIVELY, ANY ERROR IS HARMLESS.

 In his Issue 34, Appellant contends that the trial court erred in overruling his 

objection to 24 still photographs from the surveillance video of the instant offense. 

In Issue 35, Appellant contends that the trial court erred in admitting the 

surveillance video over his Rule 403 objection. Appellant’s contentions lack merit 

and should be overruled. 

Pertinent Facts 

 During a hearing outside the presence of the jury, Appellant objected that the 

surveillance video of the instant offense was unfairly prejudicial and asked the trial 

court to conduct “a 403 balancing test.” (RR44:33). The trial court overruled 

Appellant’s objection and stated that “the evidence about to be presented by the 
127

State is more probative than prejudicial.” (RR44:33). The surveillance video was 

offered and admitted and published to the jury.14 (RR44:48-49; SX#16-17). 

Later, the State moved to admit State’s Exhibits 79-102, which are still 

photographs taken from the surveillance video. (RR44:229). The following 

exchange took place: 

[Prosecutor]: I’m going to show you State’s Exhibits 79 through 102, 

and ask you if those are screen shots or still shots from this 

surveillance video that showed some of the significant things that 

occurred in the video? 

[Detective Tooke]: Yes, they are. 

. . . 

[Prosecutor]: I would offer State’s Exhibit 79 through 102. 

(State’s Exhibits 79 through 102 offered.) 

[Defense Counsel]: Your Honor, we’re going to object to 79 through 

102 due to their cumulative nature and also the previous objections 

that were set out in Pretrial Motion Number 57. 

[Trial Court]: Any response? 

[Prosecutor]: Judge, I can show the video multiple times and stop and 

freeze this, but I believe that this is more expedient. The fact is that 

the content contained in these photographs is already in evidence 

through the video, and this just allows the State to show this and point 

out the - - the specific - - the specific aspects of the video without 

playing it again. 

                                                            

14 Two copies of the surveillance video were admitted. (RR44:49; SX#16, 17). State’s Exhibit 

#16 is the unedited version, which contains footage from all three surveillance cameras. 

(RR44:47; SX#16). State’s Exhibit #17 is the compilation version, which combines the footage 

from the cameras for ease of the viewer. (RR44:47-49; SX#17). State’s Exhibit #17 is the 

version that was shown to the jury. (RR44:49; SX#17). 
128

[Trial Court]: All right. Defense’s objection is overruled. 

(RR44:229). The photographs were published to the jury. (RR44:229-234). 

Applicable Law 

Standard of Review 

 A trial court’s ruling on the admissibility of evidence is reviewed under an 

abuse of discretion standard. See Weatherred v. State, 15 S.W.3d 540, 542 (Tex. 

Crim. App. 2000). The trial court’s ruling should be upheld if it is within the zone 

of reasonable disagreement. Id. And, it will be upheld if it is correct on any theory 

of law applicable to the case. Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. 

App. 1990). 

Photograph and Videotape Evidence 

The admissibility of a photograph falls within the sound discretion of the 

trial judge. Paredes v. State, 129 S.W.3d 530, 539 (Tex. Crim. App. 2004). 

Generally, if testimony about the matters that are depicted in the photograph is 

admissible, then the photograph will also be admissible. Id. at 539. Videotapes 

are considered in the same manner. See Tex. R. Evid. 1001(b). 

Rule 403 

The admissibility of photographic evidence alleged to be unduly prejudicial 

is governed by Texas Rule of Evidence 403. Tex. R. Evid. 403; Emery v. State, 

881 S.W.2d 702, 710 (Tex. Crim. App. 1994). Under Rule 403, all relevant 
129

evidence is admissible unless “its probative value is substantially outweighed by 

the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by 

considerations of undue delay, or needless presentation of cumulative evidence.” 

Tex. R. Evid. 403. In performing a Rule 403 analysis, “the trial court must 

consider the host of factors affecting probativeness . . . and balance those factors 

against the tendency, if any, that the photographs have to encourage resolution of 

material issues on an inappropriate emotional basis.” Ladd v. State, 3 S.W.3d 547, 

568 (Tex. Crim. App. 1999). Relevant factors a court may consider in making this 

determination include the number of exhibits offered, their gruesomeness, their 

detail, their size, whether they are black-and-white or color, whether they are 

close-up, whether the body is naked or clothed, the availability of other means of 

proof, and other circumstances unique to the individual case. Chamberlain v. 

State, 998 S.W.2d 230, 237 (Tex. Crim. App. 1999). 

All probative evidence proffered by an adverse party will be prejudicial, but 

only unfair prejudice warrants exclusion of the evidence. See Montgomery v. 

State, 810 S.W.2d 372, 378 (Tex. Crim. App. 1990) (citing United States v. 

Figueroa, 618 F.2d 934, 943 (2ndCir. 1980). 
130

Analysis 

Issue #35: The Surveillance Video 

The trial court did not err in admitting the surveillance video depicting the 

instant offense. The footage from the surveillance video is in black-and-white and 

is 4 minutes and 44 seconds long. (SX#17). Given the relative positions of the 

cameras, at times, some angles offer a closer view of Nancy and Appellant behind 

the sales counter as she opens the register and as he takes lighters, cigarettes, 

money, and her ring. (SX#17). The later portion of the video is graphic as it 

shows an elderly woman on fire and the removal of her shirt in an attempt to put 

out the flames engulfing her upper body. (SX#17). The video is without a doubt, 

both graphic and disturbing. Yet, the video simply shows the offense as it 

occurred. It depicts nothing more than the reality of the brutal crime that 

Appellant committed. 

Furthermore, the video aided the jury in understanding how the crime 

occurred. In Gordon v. State, this Court described the utility of video recordings 

as follows: 

Video recordings in general may be more helpful to a jury than still 

photographs. While still photographs offer to the jury an isolated and 

fixed content, a video recording allows a more panoramic 

representation of the physical and forensic evidence. 

Gordon v. State, 784 S.W.2d 410, 412 (Tex. Crim. App. 1990). Beyond the 

depiction of the offense itself, the video helped the jury understand the testimony 
131

regarding the crime scene, including the layout of the sales counter at the Whip-In 

and Appellant and Nancy’s position during the offense. 

Appellant correctly states “There was no question for the jury as to how the 

victim died.” (Appellant’s Br. p. 104). It was undisputed that Nancy died as a 

result of thermal injuries. What was disputed, however, was Appellant’s intent. 

At no time did Appellant concede his guilt for the offense of capital murder. 

Indeed, during voir dire, defense counsel told many of the potential jurors that in 

counsel’s opinion, the jury would never reach the punishment phase because they 

would not find Appellant guilty. (RR5-RR42). The State was obligated to prove 

each and every element of the offense, including Nancy’s identity and all of the 

circumstances surrounding her robbery and murder. The video of the offense is 

relevant because it shows the offense as it happened. It establishes not only that 

Appellant committed the instant offense, but also the way in which he committed 

it. And, the way in which Appellant committed the offense – walked into the 

Whip-In with a flammable liquid, went straight to the sales counter, poured the 

liquid over the elderly female clerk’s head and upper body, robbed her, set her on 

fire, then walked casually out of the store leaving his victim engulfed in flames – is 

highly probative of his intent. In sum, the video of the offense is highly probative 

of Appellant’s specific intent to kill Nancy Harris, and is in no way unfairly 
132

prejudicial to Appellant. Therefore, the trial court did not abuse its discretion in 

admitting it. 

Issue #34: Still Photographs 

 The trial court did not err in admitting the still photographs as they are not 

cumulative of the video. This Court has held that “a still photograph is not 

cumulative of a videotape.” Matamoros v. State, 901 S.W.2d 470, 476 (Tex. Crim. 

App. 1995). A still photograph allows the jury to examine the scene in detail. 

Id. Like the video, the twenty-four still photographs are in black-and-white. 

(SX#79-102). These photographs were used by Detective Tooke as he described 

the details of the offense. (RR44:229-34). While it is true that the jury had 

already seen the surveillance video, a single viewing of a 5 minute video is hardly 

sufficient time for the jury to take in all of the details. Rather than play the video 

multiple times during Detective Tooke’s testimony, the prosecutor used the 

photographs to describe the critical details from the offense. 

For example, State’s Exhibits #79-82 shows Appellant as he enters the 

Whip-In. (SX#79-82). State’s Exhibit #83 shows Appellant carrying the plastic 

bottle in his right hand. (SX#83). State’s Exhibit #84 shows Appellant as he 

starts to walk behind the sales counter. (SX#84). State’s Exhibit #85 shows 

Appellant behind the sales counter with Nancy. (SX#85). He has a lighter in his 

hand and is taking lighters from a display. (RR44:230; SX#85). State’s Exhibit 
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#86 is another view of Appellant and Nancy behind the counter. (SX#86). State’s 

Exhibits #87 and 88 show Appellant taking cigarettes. (RR44:231; SX#87, 88). 

State’s Exhibit #89 shows Appellant’s hand on Nancy’s hand. (RR44:231; 

SX#89). State’s Exhibits #90 and 91 show Appellant licking his fingers. 

(RR44:232; SX#90, 91). State’s Exhibits #92 again shows Appellant’s hand on 

Nancy’s hand. (RR44:232; SX#92). State’s Exhibit #93 shows Appellant’s hand 

on the counter. (RR44:232; SX#93). State’s Exhibits #94 and 95 show the register 

drawer open. (RR44:232; SX#94, 95). State’s Exhibit #96 shows Appellant’s 

hand going from the register drawer. (RR44:232-33; SX#96). State’s Exhibit #97 

shows the fire as it is reflected on the register monitor. (SX#97). State’s Exhibits 

#98-102 show Nancy on fire and Appellant as he walks out of the store. (SX#98-

102). 

Each photograph provided an additional detail critical to the jury’s 

understanding of the offense and the crime scene. Notably, the prosecutor’s 

questioning of Detective Tooke regarding the photographs was very brief, 

comprising only six pages of an otherwise lengthy record. (RR44:229-34). 

Appellant argues that State’s Exhibits #98, 99, and 100 “are exceptionally 

prejudicial in that they depict Ms. Harris on fire. . . . The jury did not need to see 

still photographs of a burning woman to discern what had taken place.” 

(Appellant’s Br. p. 99). The State acknowledges that State’s Exhibits #98, 99, and 
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100 are graphic in that these photographs show Nancy on fire. (SX#98, 99, 100). 

Nevertheless, these photographs are not overly gruesome, and they provided the 

jury with the means to focus on some highly relevant details of the offense. 

State’s Exhibit #98 shows Nancy from the chest down, as she runs out from 

behind the counter and Appellant walks out behind her. (SX#98). State’s Exhibit 

#99 shows Nancy on fire, and provides another view of Appellant casually leaving 

the store. (SX#99). State’s Exhibit #100 shows Nancy on fire as she walks toward 

the sink. (SX#100). Importantly, the left side of the photograph shows Appellant 

walking out of the store carrying the plastic bottle. (SX#100). The complained-of 

exhibits helped the jury to understand not only what Appellant did to Nancy but 

also how, afterward, he fled the scene, taking his bottle of flammable liquid with 

him. 

The probative value of all 24 photographs was not substantially outweighed 

by their prejudicial effect. See Tex. R. Evid. 403. The trial court did not abuse its 

discretion in admitting them. See Matamoros, 901 S.W.2d at 476 (finding no 

abuse of discretion in admitting crime scene photographs over Matamoros’ 

objection that they were cumulative of a crime scene video previously admitted as 

the photographs provided different vantage points, which might enhance the jury’s 

understanding of the crime scene and they permitted the jurors to examine the 
135

scene in detail). At a minimum, its decision falls within the zone of reasonable 

disagreement. See Weatherred, 15 S.W.3d at 542. 

Any Alleged Error is Harmless 

Even if the trial court erred in admitting the video and the still photographs, 

Appellant was not harmed. The erroneous admission of photographs is nonconstitutional error governed by Rule of Appellate Procedure 44.2(b). See Tex. R. 

App. P. 44.2(b). Nonconstitutional error that does not affect the substantial rights 

of the defendant is disregarded by the appellate court. See Tex. R. App. P. 44.2(b). 

A substantial right is affected when the error has a “substantial and injurious effect 

or influence in determining the jury’s verdict.” See King v. State, 953 S.W.2d 266, 

271 (Tex. Crim. App. 1997). In making this determination, this Court may consider 

the entire record, including the nature of the evidence supporting the verdict, and 

the character of the error and its relationship to other evidence. See Morales v. 

State, 32 S.W.3d 862, 867 (Tex. Crim. App. 2000). 

Here, overwhelming evidence supported the jury’s verdict. When officers 

arrived at the Whip-In, Nancy told them that a man had robbed her and poured 

something on her. (RR44:69). She described her attacker as a “heavy-set black 

male with blue jeans . . . and a T-shirt.” (RR44:70). At the hospital, she told 

Wilson that “a black male, heavy-set, short dark hair, and a chubby face, came into 

the store and demanded money from her. She advised he took the money and then 
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he poured something on her. She didn’t know what - - what it was, and then he lit 

her on fire.” (RR45:82). 

When Perez searched the neighborhood behind the Whip-In, he saw a man 

matching Nancy’s description. (RR44:178, 181-82). After a foot chase, Perez 

arrested the man, Appellant. (RR44:181-86). Appellant asked police, “What took 

you so long[?] Y’all are getting slow.” (RR44:186). From Appellant’s pockets, 

police collected a used lighter, a red lighter, a purple lighter, a gold ring, a car key, 

coins, and cash. (RR44:75-78; SX#6, 26, 28-30, 59, 60). 

Investigators collected pooled liquid underneath the floor mat behind the 

sales counter as well as a plastic drinking bottle found in the grass behind the store. 

(RR44:111-12; RR45:50-51, 60-62; SX#35, 36, 114, 115, 117, 118, 129). Testing 

of contents of the plastic bottle and Nancy’s clothing showed “a medium 

petroleum distillate of the primary recovery, and . . . a lower level of isopropyl 

alcohol.” (RR45:113-14; SX#137). The pooled liquid from under the floor mat 

also contained medium petroleum distillate as did Appellant’s t-shirt, pants, belt, 

left shoe and sock, and his right shoe. (RR45:116-17; SX#138). A medium 

petroleum distillate is an ignitable liquid often encountered as charcoal starter 

fluid, paint thinner or mineral spirits. (RR45:114). 

Appellant’s DNA was found on the exterior of the plastic bottle and he was 

included as a possible contributor of a DNA profile from the interior and exterior 
137

opening of the bottle. (RR45:154-55; SX#142). Appellant was included as a 

possible contributor of a low level sample of DNA from the cash drawer. 

(RR45:156; SX#142). And, a partial DNA profile from the cigarette package 

matched Appellant. (RR45:156; SX#142). Finally, the jury heard medical 

testimony regarding the severity and extent of Nancy’s injuries. 

Accordingly, taking the entire record into consideration, Appellant was not 

harmed by the admission of the surveillance video or the still photographs taken 

from the video. Issues 34 and 35 should be overruled. 

STATE’S RESPONSE TO ISSUE NOS. 36 AND 37: THE TRIAL COURT PROPERLY 

ADMITTED THE AUTOPSY PHOTOGRAPHS AND THE PHOTOGRAPHS OF THE VICTIM IN 

THE HOSPITAL. ALTERNATIVELY, ANY ERROR IS HARMLESS. 

 

In Issue 36, Appellant contends the trial court erred in admitting, over his 

Rule 403 objection, nine photographs taken during Nancy’s autopsy. In Issue 37, 

Appellant contends the trial court erred in admitting, over his Rule 403 objection, 

seven photographs of Nancy taken at the hospital prior to her death. Appellant’s 

contentions lack merit and should be overruled. 

Pertinent Facts 

During trial, in a hearing outside the presence of the jury, the State offered 

into evidence nine autopsy photographs: State’s Exhibit Nos. 9, 151, 152, 153, 
138

154, 155, 156, 157, and 158.15 (RR45:182). An additional 34 photographs taken 

during the autopsy were not offered. (RR45:183). The State also offered seven 

photographs taken of Nancy at the hospital prior to her death: State’s Exhibit Nos. 

144, 145, 146, 147, 148, 149, 150. (RR45:182). An additional 22 photographs 

taken at the hospital were not offered. (RR45:183-84). 

Appellant objected to all sixteen photographs on the basis of his previously 

filed Pretrial Motion #57 as well as Rule 403. (RR45:183). The trial court 

affirmed it had reviewed all of the photographs, including those not offered into 

evidence, and overruled Appellant’s objection. (RR45:184-85). The nine 

autopsy photographs were admitted through Dr. Dyer, the medical examiner. 

(RR46:30). The seven hospital photographs were admitted through Dr. Hunt, the 

physician who treated Nancy at the Burn Unit at Parkland Hospital. (RR46:16). 

Analysis 

Issue #36: Autopsy Photographs 

The trial court did not err in admitting nine photographs taken during 

Nancy’s autopsy. All 9 photographs of Nancy’s deceased body were displayed to 

the jury in color. (RR45:182; SX#9, 151-58). Although Nancy is not clothed, 

most of the photographs are close-ups of specific parts of her body. And, the 

                                                            

15 Prior to trial, the State offered into evidence State’s Pretrial Exhibit #2, which contains copies 

of all photographs taken during Nancy’s autopsy and all photographs taken of Nancy at the 

hospital prior to her death. (RR41:25; State’s Pretrial Exhibit #2). 
139

photographs are not repetitious; each depicts a different area of injury. For 

example, State’s Exhibit #9, the autopsy identification photograph, is a close up of 

Nancy’s face. (RR46:37; SX#9). State’s Exhibit #152 shows the back of Nancy’s 

head and top of her shoulders. (RR46:35; SX#152). State’s Exhibit #153 shows 

Nancy’s back. (RR46:36; SX#153). State’s Exhibit #154 shows the back of 

Nancy’s left leg. (RR46:36; SX#154). State’s Exhibit #155 shows the top of 

Nancy’s left hand. (RR46:36; SX#155). State’s Exhibit #156 shows the underside 

of Nancy’s left hand. (RR46:36-37; SX#156). State’s Exhibit #157 shows the top 

of Nancy’s right hand. (RR46:37; SX#157). State’s Exhibit #158 shows Nancy’s 

left foot. (RR46:37; SX#158). 

State’s Exhibit #151 is not a close-up photograph. It shows Nancy’s 

unclothed body from the waist down. (RR46:33; SX#151). Her private area is 

covered on the photograph by what appears to be a white box. (RR46:33; 

SX#151). A photograph, which is used to describe the complainant’s injuries, is 

not inadmissible simply because it depicts an unclothed body. See Santellan v. 

State, 939 S.W.2d 155, 172-73 (Tex. Crim. App. 1997) (finding no error in 

admitting photographs of victim’s naked body during autopsy where the 

photographs show damage done to victim’s body by Sanetellan and no damage 

attributable to the autopsy is apparent). 
140

The 9 complained-of photographs are not unfairly prejudicial under Rule 

403. All 9 autopsy photographs were probative of Nancy’s injuries; they show the 

external injuries – burns, swelling, skin slippage and necrosis – that Nancy 

suffered as a result of the instant offense. (RR46:33-38; SX#9, 151-158). The 

photographs were used by the medical examiner, Dr. Dyer, to explain those 

injuries. (RR46:33-38). This Court has held that a trial court does not abuse its 

discretion in admitting autopsy photographs over a Rule 403 objection where they 

help to explain the medical examiner’s testimony describing the victim’s various 

wounds for which appellant is responsible. See Escamilla, 143 S.W.3d at 826. 

Given the nature of Nancy’s injuries – thermal injury – the photographs were 

especially important to help the jury understand how and why she died. The 

photographs are also probative of Appellant’s intent. The location and severity of 

Nancy’s injuries show Appellant intended to kill her. See Rojas v. State, 986 

S.W.2d 241, 249-50 (Tex. Crim. App. 1998) (finding no abuse of discretion in 

admitting autopsy photo because, among other reasons, it was probative of Rojas 

mental state at the time of the murder). Notably, Dr. Dyer’s testimony regarding 

the photographs consisted of only five pages in an otherwise lengthy record. 

(RR46:33-38). 

Appellant argues that the photographs are “extremely gruesome[.]” 

(Appellant’s Br. p.107). The photographs are gruesome, but they depict nothing 
141

more than the injuries that Appellant inflicted on Nancy. See Ladd, 3 S.W.3d at 

568 (holding that the trial court did not abuse its discretion in admitting 10 

photographs of the victim’s body, including autopsy photos, because the 

photographs depicted the manner of death and were no more gruesome than the 

crime). 

The trial court did not abuse its discretion when it admitted the nine autopsy 

photographs. At a minimum, its decision falls within the zone of reasonable 

disagreement. See Weatherred, 15 S.W.3d at 542. 

Issue #37: Hospital Photographs 

The trial court did not err in admitting 7 photographs of Nancy taken in the 

hospital prior to her death. Like the autopsy photographs, Nancy is not clothed but 

most of the photographs are close-ups of specific body parts. The photographs are 

not repetitious; each depicts a different area of injury. State’s Exhibit #144 shows 

Nancy’s badly burned left leg next to her unburned right leg. (RR46:16-17; 

SX#144). Her private area is covered by a towel. (SX#144). State’s Exhibit #145 

is a close-up of Nancy’s left leg. (SX#145). State’s Exhibit #146 shows Nancy’s 

severely burned upper body. (SX#146). She is attached to a ventilator. (RR46:18; 

SX#146). She is unclothed, but because she is so severely burned, her breasts are 

not easily discerned. (SX#146). State’s Exhibit #147 shows the underside of 

Nancy’s left arm. (RR46:18-19; SX#147). State’s Exhibit #148 shows the top of 
142

Nancy’s right arm and a small part of her unclothed right side. (RR46:19; 

SX#148). State’s Exhibit #149 is a close-up of the top of Nancy’s severely burned 

head and face. (RR46:19-20; SX#149). State’s Exhibit #150 shows Nancy’s 

unclothed lower back. (RR46:20; SX#150). 

The seven complained-of photographs are not unfairly prejudicial under 

Rule 403. These photographs, like the autopsy photographs, were probative of the 

injuries Nancy suffered as a result of the instant offense. (RR46:16-20; SX#144-

150). They were used by Dr. Hunt to explain those injuries. (RR46:16-20). Dr. 

Hunt testified Nancy was burned over 40% of her body. (RR46:10). He used the 

photographs to identify Nancy’s second-, third-, and fourth-degree burns. 

(RR46:16-20; SX#144-150). It would have been impossible for the jury to 

understand the nature and extent of her injuries without seeing photographs of 

them. 

Moreover, the photographs are probative of Appellant’s intent. Appellant 

poured a flammable liquid over the upper body of an elderly woman and lit her on 

fire. The location and severity of Nancy’s injuries show Appellant intended to kill 

her. See Rojas, 986 S.W.2d at 249-50. At a minimum, the trial court’s decision 

to admit the photographs falls within the zone of reasonable disagreement. See 

Weatherred, 15 S.W.3d at 542; see also Long v. State, 823 S.W.2d 259, 273 (Tex. 

Crim. App. 1991) (holding that the trial court did not abuse its discretion in 
143

admitting thirteen photographs of the victims’ bodies at the crime scene because 

the photographs were limited in number, reflected the manner of death, and had to 

be viewed together to get an accurate assessment of the injuries sustained by the 

victims). 

Any Alleged Error is Harmless 

 Even if the trial court erred in admitting the 16 complained-of photographs, 

Appellant was not harmed. As previously argued, there was overwhelming 

evidence supported the jury’s verdict regardless of the photographs of Nancy. 

Accordingly, taking the entire record into consideration, it is clear that any alleged 

error in admitting the complained-of photographs clearly did not affect Appellant’s 

substantial rights and should be disregarded. See Tex. R. App. P. 44.2(b). 

Issues 36 and 37 should be overruled. 

STATE’S RESPONSE TO ISSUE NOS. 38, 39, AND 40: THE TRIAL COURT PROPERLY 

ADMITTED EVIDENCE OF STATEMENTS MADE BY THE COMPLAINANT PRIOR TO HER 

DEATH. 

 In Issue 38, Appellant contends the trial court erred in admitting during the 

guilt/innocence phase of trial, evidence of statements Nancy made to police at the 

Whip-In. In Issue 39, Appellant contends that the trial court erred in admitting 

evidence of statements Nancy made to police when she was at the hospital. In 

Issue 40, Appellant contends the trial court erred in admitting during the 
144

punishment phase, evidence of statements Nancy made to police at the Whip In. 

Appellant’s contentions lack merit and should be overruled. 

Pertinent Facts 

Issue #38: Nancy’s Statements at the Whip-In (Guilt/Innocence Phase) 

During the guilt/innocence phase of trial, Officer Coffey testified that when 

he drove into the parking lot of the Whip-In, Nancy was stepping out the front 

door, “still on fire.” (RR44: 67-68). Officer Coffey grabbed his fire extinguisher 

and put out the flames. (RR44:68). Nancy was “screaming for help.” (RR44:69). 

The following exchange then took place: 

[Prosecutor]: Was she able to give Officer Simon a description of the 

person that had done this to her? 

[Coffey]: Yes. She said a black male came into the store - - 

[Defense Counsel]: Your Honor, I’m going to object to hearsay and 

confrontation. 

(RR44:69). The prosecutor noted that the statement was an excited utterance and 

that it was nontestimonial. (RR44:69). Appellant’s objection was overruled. 

(RR44:69). Officer Coffey testified Nancy “told officer Simon and then he 

repeated it to me, that - - she said there was a black male that came into the store 

and he robbed her and poured something on her.” (RR44:69). 
145

Issue #39: Nancy’s Statements at the Hospital 

Later, Officer Wilson testified about the conversation he had with Nancy at 

the hospital while she was still conscious and able to speak. (RR45:81). She was 

about to be intubated and placed on a ventilator. (RR45:81). Appellant objected 

when the prosecutor asked what Nancy told him. (RR45:81). The following 

exchange took place: 

[Prosecutor]: Was she able to describe to you what happened to her? 

[Wilson]: Yes, she was. 

[Prosecutor]: What did she tell you? 

[Defense Counsel]: Your Honor, I’m going to object to hearsay. 

[Prosecutor]: It’s an exception, dying declaration. 

(RR45:81). Appellant objected “under the confrontation clause.” (RR45:82). 

That objection was overruled. (RR45:82). Wilson testified Nancy told him that “a 

black male, heavy-set, short dark hair, and a chubby face, came into the store and 

demanded money from her. She advised he took the money and then he poured 

something on her. She didn’t know what - - what it was, and then he lit her on 

fire.” (RR45:82). 

Issue #40: Nancy’s Statements at the Whip-In (Punishment Phase) 

 After the defense rested and before the State’s case-in-rebuttal during the 

punishment phase of trial, the trial court conducted a hearing on the admissibility 
146

of the in-car video of one of the patrol officers who drove up to the Whip-In on the 

morning of the offense. Appellant objected as follows: 

[Defense Counsel]: Your Honor, we would object to that as - - first 

off, it’s not in rebuttal to anything that we have presented in our casein-chief, so we would argue it’s improper rebuttal. 

 We would further argue that her statements are hearsay and 

violate the right to confrontation. We would object to the relevance of 

it at this point. And furthermore, under Rule 403, we would object. 

[Trial Court]: Ms. Moseley. 

[Prosecutor]: Your Honor, this is proper rebuttal. There has been at 

least a day and a half of testimony from the Defendant and his family 

about the impact this crime and the potential sentence will have on 

him and his family. And I believe under the law, we’re entitled to 

present victim impact testimony so that the jury has something to 

weigh as it relates to Special Issue 2 and the mitigation. The question 

is, is it sufficiently mitigating, and the impact on the victim is 

certainly relevant to that. 

 I would also argue as to the hearsay objection that it is a dying 

declaration, and that by the Defendant setting her on fire and causing 

her death, he’s waived a confrontation argument. 

 And, as to 403, I think the Court should watch the video, but it 

would be - - certainly before making the ruling, we would ask the 

Judge to watch the video to make that determination, but there’s 

nothing more probative as to the impact of this crime on the victim 

than the jury being able to see it themselves. 

(RR51:69). The trial court watched the video and overruled Appellant’s 

objection. (RR51:70; SX#187). 

 State’s Exhibit #187 was offered and admitted over Appellant’s objection 

through the testimony of Officer Simon. (RR51:81; SX#187). On the video, 
147

Nancy can be heard shouting repeatedly, “Help me,” “Oh God, help me,” “Help 

me, please.” (SX#187). Nancy provides her name, date of birth, address, and 

telephone number. (SX#187). She says that she is “going to faint.” (SX#187). 

She says, “guy tried to rob me.” (SX#187). When she is asked whether the man 

threw something on her, she says that the man threw Chlorox and fire. (SX#187). 

Nancy described the man as a young Black male, short and heavy set with a round 

face. (SX#187). 

Applicable Law 

Hearsay 

 Hearsay is defined as “a statement, other than one made by the declarant 

while testifying at the trial or hearing, offered in evidence to prove the truth of the 

matter asserted.” Tex. R. Evid. 801(d). The matter asserted is defined as “any 

matter explicitly asserted, and any matter implied by a statement, if the probative 

value of the statement as offered flows from declarant’s belief as to the matter.” 

Tex. R. Evid. 801(c). 

Excited Utterance 

 An excited utterance is defined as “[a] statement relating to a startling event 

or condition made while the declarant was under the stress of excitement caused by 

the event or condition.” Tex. R. Evid. 803(2). Excited utterances are not 
148

excluded by the hearsay rule. Id. In Zuliani v. State, this court described the 

basis for this exception as follows: 

[It is] a psychological one, namely, the fact that when a man is in the 

instant grip of violent emotion, excitement or pain, he ordinarily loses 

the capacity for reflection necessary to the fabrication of a falsehood 

and the truth will come out. In other words, the statement is 

trustworthy because it represents an event speaking through the 

person rather than the person speaking about the event. 

Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim. App. 2003) (internal quotations 

omitted). “The critical determination is whether the declarant was still dominated 

by the emotions, excitement, fear or pain of the event or condition at the time of 

the statement.” Salazar v. State, 38 S.W.3d 141, 154 (Tex. Crim. App. 2001) 

(internal quotations omitted). 

Dying Declaration 

 A dying declaration is a “statement made by a declarant while believing that 

the declarant’s death was imminent, concerning the cause or circumstances of what 

the declarant believed to be impending death.” Tex. R. Evid. 804(b)(2). 

“All that the rule requires is sufficient evidence, direct or circumstantial, that 

demonstrates that the declarant must have realized that he was at death’s door at 

the time that he spoke.” Gardner, 306 S.W.3d at 288 n.20. 

 It is well settled that the dying declaration exception to the hearsay rule does 

not violate a defendant’s right of confrontation under the federal or Texas 

Constitution. See id. at 288 n.20. 
149

Analysis 

 As a threshold matter, it is the State’s position that Appellant failed to 

properly brief Issues 38, 39, and 40. See Tex. R. App. P. 38.1(h). Appellant cites 

the complained-of testimony and generally asserts that it is hearsay, but he fails to 

offer any specific argument or authority in support of his contentions. This Court 

is not required to make Appellant’s case for him. Garcia v. State, 887 S.W.2d 862, 

882 (Tex. Crim. App. 1994) (stating that a reviewing court “will not brief 

appellant’s case for him”). Appellant’s thirty-eighth, thirty-ninth, and fortieth 

issues should be overrruled on this basis. 

 Should this Court nevertheless find that Appellant has properly briefed these 

issues, the State offers the following response: 

Issue #38: Nancy’s Statements at the Whip-In (Guilt/Innocence Phase) 

 The trial court did not err in admitting Officer Coffey’s testimony regarding 

Nancy’s description of her attacker. Nancy’s statements were admissible as an 

excited utterance. See Tex. R. Evid. 803(2). When Nancy made the complained-of 

statements, she had just experienced a startling event: she was robbed and set on 

fire. Indeed, the flames on her body were extinguished only seconds before she 

made the complained-of statements. She was screaming for help. She was 

clearly still under the stress or excitement caused by the offense and her statements 

concerned the startling event. See Tex. R. Evid. 803(2). 
150

 Furthermore, the statements’ admission had no impact on Appellant’s 

confrontation rights because they were non-testimonial in nature. Statements are 

non-testimonial when made in the course of police interrogation under 

circumstances objectively indicating that the primary purpose of the interrogation 

is to enable police assistance to meet an ongoing emergency. Davis v. Washington, 

547 U.S. 813, 822 (2006); see Vinson v. State, 252 S.W.3d 336, 339-40 (Tex. 

Crim. App. 2008). When the police arrived at the Whip-In, Nancy was still on fire. 

She made the complained-of statements shortly after the flames were extinguished. 

At the time, police were trying to help Nancy and determine what had happened; 

they had not yet received notification regarding the store’s panic alarm. (RR44:68-

69). It was clearly an ongoing emergency situation. 

 The trial court did not abuse its discretion in admitting the complained-of 

statements. At a minimum, the decision falls within the zone of reasonable 

disagreement. See Weatherred, 15 S.W.3d at 542. 

Issue #39: Nancy’s Statements at the Hospital 

 The trial court did not err in admitting Officer Wilson’s testimony regarding 

Nancy’s statements to him at the hospital. Nancy’s statements were admissible as 

a dying declaration. See Tex. R. Evid. 804(b)(2). Nancy made the complained-of 

statements to Officer Wilson minutes after she arrived in the hospital emergency 

room to be treated for severe burns. (RR45:80). Shortly before she arrived at the 
151

hospital, Nancy, a 76-year-old woman with a pacemaker and diabetes, had been 

doused with a flammable liquid and set on fire. She was about to be intubated. 

Given the fact that she was in the emergency room and considering the nature and 

extent of her injuries as well as her own medical history, the trial court could have 

reasonably concluded that Nancy believed she was dying when she made the 

statements regarding the cause or circumstances of her impending death. See 

Gardner, 306 S.W.3d at 291-92 (finding no abuse of discretion in admitting 

complainant’s statements to 911 operator that her husband shot her even though 

complainant did not expressly state that she was dying and no one explicitly told 

her that she was dying). Because the complained-of statements were admissible 

as a dying declaration, Appellant’s confrontation right was not violated. See 

Gardner, 306 S.W.3d at 288 n.20. 

 The complained-of statements were also admissible as an excited utterance. 

Zuliani, 97 S.W.3d at 595. Nancy was still under the stress of the startling event 

described above. The fact that some time had passed between the event and her 

statements is merely a factor to be considered in the analysis. Id. at 596 (noting 

that whether time has elapsed since the startling event is only one factor to be 

considered in determining whether a statement is an excited utterance). As stated, 

Nancy made the statements shortly after she arrived in the emergency room and 
152

while she was being treated for her burns. She was still under the pain and stress 

of the startling event and her statements concerned that startling event. 

 The trial court did not abuse its discretion in admitting the complained-of 

statements. At a minimum, the decision falls within the zone of reasonable 

disagreement. See Weatherred, 15 S.W.3d at 542. 

Issue #40: Nancy’s Statements at the Whip-In (Punishment Phase) 

 The trial court did not err in admitting during the punishment phase of trial, 

the in-car police video containing Nancy’s statements to police regarding the 

instant offense. As previously argued in response to Issue 38, Nancy’s statements 

to police when they arrived at the Whip-In were admissible as excited utterances 

and because they were non-testimonial in nature. Since the testimony of the two 

officers was admissible, the video is therefore admissible. See Williams v. State, 

958 S.W.2d 186, 195 (Tex. Crim. App. 1997) (stating that “a photograph is 

admissible if verbal testimony as to matters depicted in the photographs is also 

admissible.”). State’s Exhibit #187, the in-car video, simply allows the jury to 

hear the statements from Nancy in her own voice. 

The trial court did not abuse its discretion in admitting the complained-of 

statements. At a minimum, the decision falls within the zone of reasonable 

disagreement. See Weatherred, 15 S.W.3d at 542. 
153

Any Error is Harmless 

Even if this Court finds that the trial court erred, any alleged error is 

harmless. Nancy’s descriptions of the man who attacked her did not have a 

substantial and injurious effect or influence in determining the jury’s verdicts. 

Before any of the officers testified about Nancy’s statements to them, the jury saw 

the surveillance video. (RR44:49; SX#17). The jury saw with their own eyes, 

how on May 20, 2012, Appellant walked in to the Whip-In, robbed Nancy, and set 

her on fire. (SX#17). Nancy’s descriptions to police regarding the person who 

robbed her and set her on fire only confirmed what the jury had already seen. 

 Issues 38, 39, and 40 should be overruled. 

STATE’S RESPONSE TO ISSUE NO. 41: THE TRIAL COURT PROPERLY ADMITTED 

EVIDENCE OF APPELLANT’S ACTIONS AFTER HE FLED THE WHIP-IN.

 In Issue 41, Appellant contends that, during the guilt phase, the trial court 

erred under Rule 404(b) in admitting evidence of the bad acts and offenses he 

committed after he fled the Whip-In. Appellant’s contentions lack merit and 

should be overruled. 

Pertinent Facts 

During the guilt/innocence phase, Appellant objected to testimony from 

three of the residents from the neighborhood behind the Whip-In, where Appellant 

hid after the instant offense: Jim Medley, Ken Marecle, and Lawrence Denson. 

Prior to their testimony, Appellant objected, arguing that their testimony involved 
154

extraneous offenses which were “not necessary to the jury’s understanding[.]” 

(RR44:140). Appellant’s objection was overruled. (RR44:141). 

Standard of Review 

 A ruling on the admissibility of extraneous offenses is reviewed for abuse of 

discretion. See Devoe v. State, 354 S.W.3d 457, 469 (Tex. Crim. App. 2011). 

Applicable Law 

 Rule 404(b) provides, in pertinent part, as follows: 

Evidence of other crimes, wrongs or acts is not admissible to prove 

the character of a person in order to show action in conformity 

therewith. It may however be admissible for other purposes, such as 

proof of motive, opportunity, intent, preparation, plan, knowledge, 

identity, or absence of mistake or accident. 

Tex. R. Evid. 404(b). Evidence of extraneous offenses may be admissible, 

however, if it has relevance apart from character conformity. See Moses v. State, 

105 S.W.3d 622, 626 (Tex. Crim. App. 2003). 

Analysis 

 Appellant has failed to properly brief this issue. He recites trial counsel’s 

objection and the law, but does not actually identify whose testimony he contends 

was improperly admitted. Importantly, in the cited exchange, wherein trial 

counsel lodged her objection, only two of the three neighborhood residents are 

identified by name, Medley and Marecle. (Appellant’s Br. p. 113). As such, any 

alleged error as to the third neighborhood resident, Lawrence Denson, was not 
155

preserved. See Tex. R. App. P. 33.1(a). As to Medley and Marecle, the issue is 

inadequately briefed. Rule 38.1(h) of the Texas Rules of Appellate Procedure 

requires that a brief contain a clear and concise argument for the contentions made, 

with appropriate citations to authorities and to the record. Tex. R. App. P. 38.1(h); 

see, e.g., Walder v. State, 85 S.W.3d 824, 827 (Tex. App.—Waco 2002, no pet.) 

(setting forth the elements necessary to satisfy the mandatory requirement of a 

“clear and concise argument” pursuant to Rule 38.1). 

 Nevertheless, testimony from all three of the neighborhood residents – 

Medley, Marecle, and Denson – was admissible as same transaction contextual 

evidence. Same transaction contextual evidence is admissible to impart 

information to the jury that is essential to understanding the context and 

circumstances of events which, although legally separate offenses, are blended or 

interwoven. See Camacho v. State, 864 S.W.2d 524, 532 (Tex. Crim. App. 1993) 

(finding evidence of kidnapping and murder of complainant’s wife and son 

admissible as same transaction contextual evidence as it was necessary to 

understand the charged offense). “[E]vents do not occur in a vacuum, and the jury 

has a right to hear what occurred immediately prior to and subsequent to the 

commission of the act so that it may realistically evaluate the evidence.” 

Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000) (citing Archer v. 

State, 607 S.W.2d 539, 542 (Tex. Crim. App. 1980)). 
156

The three neighborhood residents’ testimony provide context to the offense 

and show Appellant’s consciousness of guilt. Medley’s testimony helped the jury 

to understand where Appellant went when he fled the Whip-In and how he tried to 

get rid of the t-shirt he wore while he committed the offense. Evidence of flight 

and attempts to conceal incriminating evidence are admissible as circumstances 

showing consciousness of guilt. See Wells v. State, 578 S.W.2d 118, 119 (Tex. 

Crim. App. 1979). Medley testified that on the morning of the offense, he found a 

pack of cigarettes in his driveway. (RR44:146; SX#48, 78). Inside the garbage 

can, he found a t-shirt. (RR44:147; SX#77). DNA on the t-shirt matched 

Appellant. (RR44:206-07; RR45:134; SX#77, 135, 141, 142). A medium 

petroleum distillate was also detected on the t-shirt. (RR44:206-07; RR45:117; 

SX#77, 135, 138). 

Marecle and Denson’s testimony informed the jury of Appellant’s attempts 

to try to avoid detection and apprehension. Marecle testified that Appellant 

appeared on his porch, asking for help. (RR44:157, 159, 166-67; SX#55). His 

“eyes were really wide and big.” (RR44:169). He was wearing pants and blackrim glasses, but no shirt. (RR44:162). He tried to push his way into Marecle’s 

home. (RR44:159-60). Marecle pushed Appellant outside. (RR44:160, 169). 

There, Appellant pushed Marecle to the ground. (RR44:161, 169). When Marecle 

stood up, Appellant took the glasses off of Marecle’s face and fled. (RR44:162-63, 
157

170). At Denson’s house, Appellant tried to get inside the gate. (RR45:9). When 

Denson confronted him, Appellant approached him saying “man, I’m in a bad 

way.” (RR45:9, 11-12; SX#51-53). 

The trial court did not abuse it’s discretion in admitting the testimony of the 

three neighborhood residents. At a minimum, the decision falls within the zone of 

reasonable disagreement. See Weatherred, 15 S.W.3d at 542. Even if this Court 

finds that the trial court erred, however, any alleged error is harmless. As argued in 

detail above, the State presented overwhelming evidence of Appellant’s guilt. 

 Issue 41 should be overruled. 

STATE’S RESPONSE TO ISSUE NO. 42: THE TRIAL COURT PROPERLY INSTRUCTED THE 

JURY ON VOLUNTARY INTOXICATION. 

 In Issue 42, Appellant contends that the trial court erred in overruling his 

objection to the jury instruction regarding voluntary intoxication. Appellant’s 

contentions lack merit and should be overruled. 

Pertinent Facts 

 The court’s charge during the guilt/innocence phase of trial included the 

following instruction: 

Voluntary intoxication does not constitute a defense to the 

commission of a crime. “Intoxication” means the disturbance of 

mental or physical capacity resulting from the introduction of any 

substance into the body. 
158

(CR14:4508). Appellant objected to this instruction. (RR45:187-88). His 

objection was overruled. (RR45:188). 

Standard of Review 

A reviewing court examines the trial court’s submission of jury instructions 

under an abuse of discretion standard. Wesbrook, 29 S.W.3d at 122. 

Applicable Law 

Texas Penal Code § 8.04(a) provides that voluntary intoxication does not 

constitute a defense to the commission of a crime. Tex. Penal Code Ann. § 

8.04(a). It is appropriate to include an § 8.04(a) instruction in the guilt/innocence 

charge if there is evidence from any source that might lead a jury to conclude that 

the defendant’s intoxication somehow excused his actions. Sakil v. State, 287 

S.W.3d 23, 26 (Tex. Crim. App. 2009). It is not necessary that the defendant 

assert intoxication as a defense for the § 8.04(a) instruction to be included in the 

charge. Id. at 26 fn. 8. It is not necessary that the evidence conclusively establish 

the defendant’s intoxication for the instruction to be included in the charge. See id. 

at 27-28. 

Analysis 

 The trial court did not err when it included the complained-of instruction 

during guilt/innocence as there was evidence that might have led the jury to believe 

that Appellant was intoxicated and that his intoxication excused his actions. 
159

Appellant cross-examined Officer Coffey regarding his opinion of whether 

Appellant was intoxicated after he was arrested and was being transported to jail. 

(RR44:87). Coffey testified he did not “smell anything on [Appellant.]” 

(RR44:87). Appellant asked whether someone can be intoxicated “from a 

substance that didn’t have a smell[.]” (RR44:87). Coffey conceded that 

possibility. (RR44:87). He also conceded that Appellant appeared “erratic” on 

the transport video. (RR44:87). Appellant also cross-examined Marecle about 

whether Appellant appeared intoxicated at the time of their encounter. (RR44:168-

69). Indeed, Marecle testified “It had to be something because he didn’t look - - 

his eyes were really wide and big.” (RR44:169). Finally, the State notes that 

during closing argument, defense counsel argued that “any person with common 

sense can tell [Appellant] is under the influence” when he is in the patrol car. 

(RR46:54-55). 

 Because there was some evidence that Appellant may have been intoxicated, 

the trial court did not abuse its discretion when it included a § 8.04 instruction in 

the charge during guilt/innocence. See Sakil, 287 S.W.3d at 24, 27-28 (finding no 

error in including § 8.04(a) instruction where evidence of Sakil’s intoxication was 

equivocal: the complainant told the 911 operator that Sakil was not intoxicated, but 

that he was behaving “oddly” during their fight; psychiatrist testified to Sakil’s 

history of poly-substance abuse). 
160

 Issue 42 should be overruled. 

STATE’S RESPONSE TO ISSUE NOS. 43 AND 44: THE TRIAL COURT PROPERLY 

ADMITTED EVIDENCE DURING THE PUNISHMENT PHASE OF APPELLANT’S 

EXTRANEOUS OFFENSES. 

 In Issues 43 and 44, Appellant contends that, during punishment, the trial 

court erred in admitting over his objection, evidence of his extraneous bad acts. 

He contends that the State’s notice of its intent to present the evidence was 

inadequate under article 37.07 of the Texas Code of Criminal Procedure in that it 

failed to include the date of the acts and county in which they occurred. 

Appellant’s contentions lack merit and should be overruled. 

Pertinent Facts 

 On September 27, 2013, thirty days prior to trial, the State filed and served 

Appellant with its notice of extraneous offenses. (CR14:4461-69). Included in 

that notice were four specific assaults Appellant committed against his former 

girlfriend Amy Armstrong Franks.16 (CR14:4461-62). Also included was the 

following: 

 During the defendant’s relationship with Amy Armstrong, in or about 

the year 1993, the defendant was physically abusive. The defendant 

was jealous and would get violent if he thought she was with 

someone else. She said he punched her, pushed her, and choked her. 

He drank alcohol a lot and smoked marijuana. He threatened Ms. 

Armstrong, saying, “Nobody’s gonna have you if I can’t have you.” 

These incidents all occurred in Dallas County, Texas. 

                                                            

16 At the time of trial, Amy Armstrong had married and gave her name as Amy Franks. 

(RR47:29-30). 
161

(CR14:4468). During the punishment phase of trial, Appellant objected to the 

State presenting evidence of ongoing abuse between Appellant and Amy 

Armstrong. (RR47:9). Appellant argued that the State’s notice “lacks detail with 

regard to specific dates.” (RR47:10). He objected that there was no date or time 

associated with the claim regarding Appellant’s threat, “Nobody’s gonna have you 

if I can’t have you.” (RR47:10). He objected that the claims regarding drugs and 

alcohol were “very general and vague.” (RR47:10). Finally, he objected that the 

“offenses or transactions” were not relevant to Appellant’s death worthiness 

because they occurred 20 years ago and are “highly prejudicial.” (RR47:12). 

Appellant’s objection was overruled. (RR47:12). 

Applicable Law 

The introduction of extraneous conduct evidence in the punishment phase of 

a capital murder trial is governed by the notice requirements of Article 37.07, § 

3(g) of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 

37.071, § 2(a)(1). Article 37.07, § 3(g) requires the State, on timely request, to 

give the defendant reasonable notice of extraneous crimes or bad acts that the State 

intends to use at trial. See Tex. Code Crim. Proc. Ann. art. 37.07, § 3(g) 

(incorporating Texas Rule of Evidence 404(b)’s reasonable notice requirement). 

This statute also requires the State to give additional notice if it intends to use an 

extraneous offense that has not resulted in a final conviction. To be reasonable, the 
162

notice must include the date on which the offense occurred, the county where it 

occurred, and the name of the alleged victim. Id. 

The purpose of article 37.07, § 3(g) is to avoid unfair surprise and to enable 

the defendant to prepare to answer the extraneous-offense evidence. See Luna v. 

State, 301 S.W.3d 322, 326 (Tex. App.—Waco 2009, no pet.); Apolinar v. State, 

106 S.W.3d 407, 414-15 (Tex. App.—Houston [1st Dist.] 2003) aff’d, 155 S.W.3d 

184 (Tex. Crim. App. 2005); Roethel v. State, 80 S.W.3d 276, 282 (Tex. App.—

Austin 2002, no pet.). To determine harm in light of that purpose, an appellate 

court should examine the record to determine whether the deficient notice resulted 

from prosecutorial bad faith or prevented the defendant from preparing for trial. 

Roethel, 80 S.W.3d at 282. In determining whether the defendant was prevented 

from preparing for trial, appellate courts look at whether the defendant was 

surprised by the substance of the testimony and whether that affected his ability to 

prepare cross-examination or mitigating evidence. Id. 

Analysis 

 Of the five offenses or acts committed against Amy Franks listed in the 

State’s Notice of Extraneous Offenses, only one does not identify the specific date 

on which the offense was committed: the one describing Appellant’s abusive 

behavior and his drug and alcohol use. (CR14:4468). Although the notice does 

not provide the month and day, it does identify the year that the offenses were 
163

committed, 1993, and it states that the offenses were committed in Dallas County, 

Texas. (CR14:4468). 

The record contains no indication that the State acted in bad faith when it 

failed to comply with article 37.07, § 3(g). To the contrary, the record 

demonstrates that the State provided Appellant notice of the extraneous conduct to 

the best of its ability and that the only reason the notice did not identify the date 

more specifically was because more specific information was not known to the 

State. There is no indication from the record that the omission was intended to 

mislead Appellant or prevent him from preparing a defense. 

Notably, Appellant does not argue that he was surprised by the substance of 

Franks’ testimony. He does not point to anything in the record that would support 

the notion that his ability to mount an adequate defense was hindered by the lack of 

notice; nor does he argue on appeal that his ability to prepare cross-examination or 

mitigating evidence was affected by the lack of adequate notice. Appellant has 

failed to make any showing of how his defense strategy might have been different 

had the State identified the exact days and months when the abuse and substance 

abuse occurred. See, e.g., Hernandez v. State, 176 S.W.3d 821, 825-26 (Tex. 

Crim. App. 2005) (finding any error in admitting evidence of extraneous offense 

during punishment phase despite failure to provide notice was harmless because 

Hernandez did not contend that witness’s testimony caused him surprise, that 
164

omission from notice prevented him from preparing a defense, or that had he 

known, his defense strategy would have been different). As such, any error by the 

trial court in admitting evidence of this offense was harmless. 

Appellant also contends that the offenses associated with Franks were too 

remote to be relevant on the issue of mitigation. However, this Court has 

specifically declined to fashion a “per se” rule that an extraneous transaction is too 

remote in time to be introduced into evidence at trial. See Templin v. State, 711 

S.W.2d 30, 34 (Tex. Crim. App. 1986). Indeed, the fact that Appellant abused 

Franks and drugs and alcohol in 1993 shows his penchant for violence and 

addiction to mind-altering substances is long lived, which is most definitely 

relevant to both future danger and mitigation. 

Based on the foregoing, the trial court could have reasonably concluded that 

the complained-of evidence was relevant and admissible. This decision was not 

outside of the zone of reasonable disagreement. The trial court did not abuse its 

discretion in admitting the evidence. 

Even if the trial court erred, any alleged error is harmless. Error in admitting 

evidence with insufficient notice under article 37.07, § 3(g) is non-constitutional 

error. See Apolinar, 106 S.W.3d at 414. The evidence at issue was no more 

serious and potentially inflammatory than the facts of the offense and the other 

punishment evidence admitted without objection. There is nothing in the record to 
165

indicate that the jury was not equipped to evaluate the probative force of the 

evidence. Moreover, the trial court instructed the jury that any testimony regarding 

extraneous offenses committed by appellant could be considered only if they 

believed appellant committed the offenses beyond a reasonable doubt and even 

then only in determining their answers to the special issues.17 (CR14:4517). This 

minimized any potential for improper influence on the jury. See, e.g., Lane v. State, 

933 S.W.2d 504, 520 (Tex. Crim. App. 1996). 

Issues 43 and 44 should be overruled. 

STATE’S RESPONSE TO ISSUE NOS. 45 THROUGH 48: THE TRIAL COURT PROPERLY 

ADMITTED EVIDENCE OF APPELLANT’S ARRESTS AND CERTAIN JUDGMENTS AND 

SENTENCES. 

 In Issues 45, 46, 47, and 48, Appellant contends that the trial court erred in 

admitting, over his objection, evidence of certain prior arrests and convictions. He 

contends that the evidence was not sufficiently tied to him. Appellant’s 

contentions lack merit and should be overruled. 

                                                            

17 Specifically, the instruction stated: “You are instructed that if there is any evidence before you 

in this case regarding the defendant having committed an offense or offenses other than the 

offense alleged against him in the indictment, you cannot consider this evidence for any purpose 

unless you find and believe beyond a reasonable doubt that the defendant committed such other 

offenses, if any were committed, and even then you may only consider the same in determining 

the answers to the special issues.” (CR14:4517). 
166

Pertinent Facts 

Issue No. 45: State’s Exhibit #166 

Lieutenant John Spera testified he responded to “a family disturbance” call 

at 4263 Rose Hill Road on September 13, 2004. (RR47:78-79). The complainant 

was Daphne Johnson. (RR47:80). “[T]here was a suspect there attempting to kick 

the door in and that there was also a protective order on him.” (RR47:79). Spera 

found Appellant and arrested him for the offense of violation of a protective order. 

(RR47:86-89, 92). The State offered State’s Exhibit #166, Appellant’s judgment 

and sentence in Cause No. MA04-28690, convicting him of the offense of 

violation of a protective order. (RR47:97; SX#166). The judgment recites that 

the offense was committed on September 13, 2004. (SX#166). 

 Appellant objected that the information contained in State’s Exhibit #166 

was not “sufficiently tied to” him. (RR47:93). Appellant’s objection was 

overruled. (RR47:94). 

Issue No. 46: State’s Exhibit #169 

 Officer M.G. Clark testified that on August 7, 1995 was dispatched to locate 

a suspect involved in an earlier aggravated assault, deadly weapon. (RR47:132-

33). Appellant was the suspect. (RR47:134-36). Clark located Appellant, 

arrested him, and booked him for, among other offenses, aggravated assault, 

deadly weapon. (RR47:136). The State offered State’s Exhibit #169, a certified 
167

copy of Appellant’s prior conviction for aggravated assault, deadly weapon in 

Cause No. F95-25906. (RR47:141; SX#169). Appellant objected to this exhibit, 

arguing that it was not “sufficiently tied to [Appellant].” (RR47:142). His 

objection was overruled. (RR47:142, 143). 

Issue No. 47: State’s Exhibit #171 

 Officer St. Clair testified about the events leading to Appellant’s arrest for 

robbery and evading arrest on June 19, 2004. (RR47:165-174). St. Clair 

recognized Appellant from the car chase and arrest. (RR47:170). During St. 

Clair’s testimony, the State offered State’s Exhibit #171, which is a pen packet 

containing a judgment and sentence for robbery in Cause No. F04-26727. 

(RR47:175; SX#171). It also contains a judgment and sentence for evading arrest 

or detention in Cause No. F04-26728. (RR47:175; SX#171). The date of offense 

on both cases is June 19, 2004. (RR47:175; SX#171). Appellant objected to this 

exhibit, arguing that there was a lack of sufficient identifying information. 

(RR47:175). His objection was overruled. (RR47:175). 

Issue No. 48: State’s Exhibit #170 

 Officer Steadman testified that on October 9, 2002 at about 1:50 a.m., he 

was dispatched as back up on a hit-and-run call. (RR47:154-55). Steadman 

located the suspect – Appellant – and, after a foot chase, captured and arrested him 

for evading arrest. (RR47:155-59). The State offered State’s Exhibit #170, a 
168

certified copy of Appellant’s judgment and sentence for the offense of evading 

arrest in Cause No. M02-27021. (RR47:160). Appellant objected, arguing that 

there was not sufficient identifying information to tie the documents to Appellant. 

(RR47:160-61). Appellant’s objection was overruled. (RR47:161). 

Applicable Law 

 To establish a defendant’s prior criminal conviction, the State must prove 

beyond a reasonable doubt the following: (1) that a prior conviction exists, and (2) 

that the defendant is linked to that conviction. See Flowers v. State, 220 S.W.3d 

919, 921 (Tex. Crim. App. 2007). Texas law does not require that the prior 

conviction be proven in any specific manner. Id. at 922. “Any type of evidence, 

documentary or testimonial, might suffice.” Id. 

Analysis 

Appellant has failed to properly brief these issues. He recites trial counsel’s 

objections and the law, but he does not provide any specific argument as to why 

the exhibits are inadmissible. See Tex. R. App. P. 33.1(a). 

Regardless, all four exhibits were properly admitted as the testimony linked 

the convictions to Appellant. Spera testified that he arrested Appellant on 

September 13, 2004 for the offense of violation of a protective order. (RR47:78-

79, 86-89, 92). State’s Exhibit #166 is a certified copy of a judgment regarding 

Appellant’s prior conviction for violation of a protective order, alleged to have 
169

been committed on September 13, 2004. (RR47:97; SX#166). Clark testified that 

he arrested Appellant on August 7, 1995 for aggravated assault, deadly weapon. 

(RR47:136). State’s Exhibit #169 is a certified copy of a judgment regarding 

Appellant’s prior conviction for aggravated assault, deadly weapon alleged to have 

been committed on August 7, 1995. (RR47:141; SX#169). St. Clair testified that 

he participated in Appellant’s arrest for robbery and evading arrest on June 19, 

2004. (RR47:165-174). State’s Exhibit #171 is a penitentiary packet containing a 

copy of a judgment regarding Appellant’s conviction for robbery alleged to have 

been committed on June 19, 2004. (RR47:175; SX#171). Steadman testified that 

he arrested Appellant on October 9, 2002 for evading arrest. (RR47:154-59). 

State’s Exhibit #170 is a certified copy of a judgment regarding Appellant’s prior 

conviction for evading arrest alleged to have been committed on October 9, 2002. 

(SX#170). 

Based on the foregoing, there was sufficient evidence for the jury to find 

beyond a reasonable doubt that Appellant was the individual who committed the 

aforementioned extraneous offenses. As such, the trial court did not abuse its 

discretion in admitting them. See Flowers, 220 S.W.3d at 922 (noting that there 

are many ways to prove a prior conviction; “Just as there is more than one way to 

skin a cat, there is more than one way to prove a prior conviction.”). 

Issues 45, 46, 47, and 48 should be overruled. 
170

STATE’S RESPONSE TO ISSUE NO. 49: THE TRIAL COURT PROPERLY ADMITTED THE 

TESTIMONY OF WARDEN MELODYE NELSON. 

 In Issue 49, Appellant contends that the trial court erred in allowing 

testimony from Warden Melodye Nelson regarding prison violence and the nature 

of weapons found in prison. (Appellant’s Br. pp. 122-1240. Appellant contends 

that Nelson’s testimony violated his right to individualized sentencing as her 

testimony concerned the conduct of individuals other than Appellant. Appellant’s 

contentions lack merit and should be overruled. 

Pertinent Facts 

 In a hearing outside the presence of the jury, Appellant objected to the 

testimony of Warden Melodye Nelson. (RR48:16-17). Specifically, he objected to 

“testimony by Warden Nelson, concerning violence and weapons and - - and things 

done by other inmates.” (RR48:16). Appellant’s objection was overruled. 

(RR48:17). 

Applicable Law 

 Rule 702 of the Texas Rules of Evidence provides as follows: 

If scientific, technical, or other specialized knowledge will assist the 

trier of fact to understand the evidence or to determine a fact in issue, 

a witness qualified as an expert by knowledge, skill, experience, 

training, or education may testify thereto in the form of an opinion or 

otherwise. 

Tex. R. Evid. 702. “The proponent of scientific evidence must show, by clear and 

convincing proof, that the evidence is sufficiently relevant and reliable to assist the 
171

jury in accurately understanding other evidence or in determining a fact in issue.” 

Gallo v. State, 239 S.W.3d 757, 765 (Tex. Crim. App. 2007). 

 Additionally, the trial court must determine whether the expert “make[s] an 

effort to tie pertinent facts of the case to the scientific principles which are the 

subject of his testimony.” Jordan v. State, 928 S.W.2d 550, 555 (Tex. Crim. App. 

1996). The testimony must be “sufficiently tied to the facts” to be helpful to the 

jury. Id.; see Griffith v. State, 983 S.W.2d 282, 288 (Tex. Crim. App. 1998) 

(holding that expert witness “fit” his expert knowledge with the particular facts of 

the case in his evaluation of appellant’s future dangerousness). 

Analysis 

 The trial court did not err in admitting Warden Nelson’s testimony because 

it was relevant to helping the jury determine Special Issue No. 1, whether 

Appellant would commit criminal acts of violence that would constitute a 

continuing threat to society. It is well settled that “society” includes the prison 

population. See Estrada v. State, 313 S.W.3d 274, 281 (Tex. Crim. App. 2010). 

Nelson’s testimony described for the jury what Appellant’s life would be like if 

Appellant were sentenced to life in prison and his “society” became prison society. 

See Jordan, 928 S.W.2d at 555-56. Prison society is not something within a 

juror’s common knowledge. Nelson testified regarding staffing, classification, 

housing, daily routine, discipline and the potential for violence. She did not 
172

specifically testify that Appellant would be more or less likely to commit violent 

acts in prison, only that there is a potential for drugs and violence, even in prison. 

Nelson showed weapons that were found and confiscated in prison over the years 

in an effort to illustrate her testimony for the jury. Indeed, Nelson testified, “for 

someone who hasn’t worked inside of one of our prisons, [the inmates are] very 

creative in how they can construct a weapon. I will tell you there’s - - we still find 

weapons and things of that nature that it shocks me.” (RR48:59). See Threadgill, 

146 S.W.3d at 670-671 (finding no abuse of discretion in admitting criminal 

investigator’s testimony regarding the prevalence of violence in prison as well as 

photographs of weapons made by inmates in prison). 

 Even if the trial court erred in admitting Nelson’s testimony, any alleged 

error was harmless. See Tex. R. App. P. 44.2(b). The jury had already seen and 

heard evidence regarding the instant capital murder. The jury had already heard 

about Appellant’s violent and threatening behavior with his wife, sister-in-law and 

ex-girlfriend, his oppositional behavior with police, his prior violent criminal 

offenses and the assault he committed against Jenkins while he was in prison. The 

jury would later hear about his failure to obey orders while incarcerated, even 

while awaiting trial on the instant charges. Furthermore, the prejudicial effect of 

Nelson’s testimony was minimized by its general nature. It was neither graphic 

nor disturbing in content. That fact, in conjunction with the admission of other 
173

more compelling punishment evidence by the State, rendered harmless any error in 

the admission of Warden Nelson’s testimony. 

 Issue 49 should be overruled. 

STATE’S RESPONSE TO ISSUE NO. 50: THE EVIDENCE IS LEGALLY SUFFICIENT TO 

SUPPORT THE JURY’S FINDING THAT APPELLANT IS A FUTURE DANGER. 

 In Issue 50, Appellant contends that the evidence is legally insufficient to 

support the jury’s finding that there is a probability that he will commit criminal 

acts of violence in the future. Appellant contends that he has no prior violent 

offense convictions and several of his witnesses testified that he was a low risk for 

future dangerousness. 

Applicable Law 

The State has the burden of proving the future dangerousness punishment 

issue beyond a reasonable doubt. Tex. Code Crim. Proc. Ann. art. 37.071, §§ 

2(b)(1), 2(c); Ladd, 3 S.W.3d at 557. In its determination of the issue, the jury is 

entitled to consider all of the evidence presented at both the guilt and punishment 

stages of trial. See Tex. Code Crim. Proc. Ann. art. 37.071 § 2(d)(1). 

A jury may consider a variety of factors when determining whether a 

defendant will pose a continuing threat to society: the circumstances of the 

offense, the defendant’s state of mind, whether he was working alone or with other 

parties, the calculated nature of his acts, the forethought and deliberation exhibited 

by the crime’s execution, the existence of a prior criminal record, the defendant’s 
174

age and personal circumstances at the time of the offense, whether the defendant 

was acting under duress or the domination of another at the time of the offense, 

psychiatric evidence, and character evidence. See Martinez v. State, 327 S.W.3d 

727, 730 n.4 (Tex. Crim. App. 2010). In reviewing the sufficiency of the evidence, 

this Court views all of the evidence in the light most favorable to the jury’s finding 

and determines whether, based on that evidence and reasonable inferences 

therefrom, a rational jury could have found beyond a reasonable doubt that the 

answer to the future-dangerousness issue was “yes.” Id. at 730. 

Analysis 

The evidence from both phases of trial unquestionably demonstrates 

Appellant’s propensity for violence. Indeed, the facts of the offense, standing 

alone, are sufficient to support a finding of future dangerousness. Appellant 

poured lighter fluid over the upper body of an elderly woman, robbed her, lit her 

on fire, and then casually walked away as she tried in vain to extinguish the flames 

ravaging her upper body. 

The State did not rely on the facts of the offense alone, however. The State 

presented the following additional evidence showing Appellant’s future 

dangerousness: 

 In 1993, at the age of 17, Appellant was physically violent with his thengirlfriend, Franks. (RR47:38-40). Over the course of their short relationship, 

he hit her, grabbed her, and threatened her. (RR47:38-40). One time, he 
175

threw a burning piece of wood onto her patio, setting a rug on fire. 

(RR47:49). 

 Also in 1993, Appellant was arrested when an officer saw him walking 

down the street with a joint. (RR47:101, 104–107). In addition to the 

joint, Appellant had a bag of marijuana on his person. (RR47:105, 107). 

He was arrested for the marijuana and an outstanding warrant. (RR47:105, 

108). 

 The following year, in 1994, Appellant was arrested when officers 

responding to a call of a man and woman fighting on the side of the road 

determined that he had outstanding warrants. (RR48:111-12). Appellant 

struggled with police when he was informed that he would be arrested. 

(RR48:114). He bit both officers’ arms. (RR48:114). He bit one of the 

officers so hard that he bit through the officer’s watch. (RR48:114). 

 

 Also in 1994, Appellant instructed Daphne not to stop when an officer tried 

to pull them over. (RR47:125). After a slow-speed chase, Appellant jumped 

out of the vehicle and tried to flee. (RR47:118–23). 

 In 1995, Appellant was arrested for aggravated assault with a deadly 

weapon. (RR47:134-37). He had been making threatening phone calls for 

hours. (RR47:133-34). When he was booked in, he threatened the arresting 

officer. (RR47:138-40). 

 In 2002, Appellant evaded arrest. (RR47: 150–151, 155–58). 

 In 2003, Daphne filed an application for a protective order. (SX#193). In 

her application, she detailed assaults he committed on her in October, 

November and December of 2003. She wrote that Appellant punched her, 

pushed her, and kicked in their door. (SX#193). Daphne wrote, “Over the 

last nine years [Appellant] . . . hit me, punched me, slapped me, kicked me 

once, strangled me, pushed and shoved me, and thrown me around. I’ve had 

bruises, black eyes, a bloody nose, a busted lip, scratches[,] soreness, 

swelling, and pain.” (SX#193). 

 In 2004, Appellant attacked Salmeron in her driveway, threw her out of her 

truck, and stole it. (RR47:183-86, 191). After a high-speed chase, he 
176

wrecked Salmeron’s truck, rendering it inoperable. (RR47:166-68, 170, 

188, 197). 

 Also in 2004, while Daphne’s protective order was still in effect, Appellant 

went to Daphne’s apartment and attempted to kick down her door. 

(RR47:78-80, 84). 

 While in prison in 2005, Appellant refused to attend school or go to work. 

He fought with his bunkmate, Jenkins. (RR47:223). He grabbed Jenkins 

below his knees and flipped him, causing Jenkins’ head to strike the concrete 

floor and “split [his] head open.” (RR47:226-27, 233). Jenkins’ injuries 

required nine staples. (RR47:230–231; SX#172). 

 In 2006, while still in prison, Appellant masturbated at the door of his cell in 

front of a female guard while leering at her. (RR47:263-64). 

 In 2011, Appellant broke into his employer’s safe and stole $325 in cash and 

three state inspection books valued at $2,100. (RR48:158, 172-73). He also 

stole a computer monitor. (RR48:172-73). He returned the monitor but not 

the inspection booklets or cash. (RR48:175, 178; SX#174). 

 In 2012, Appellant was brought into the emergency room by Dallas police 

and paramedics. (RR48:190-91; SX#188). He was handcuffed, “highly 

agitated” and “somewhat combative.” (RR48:194). He was in a substanceinduced psychosis. (RR48:202-03). It took eight or nine people to hold him 

to the bed. (RR48:194). A body net bound him to the bed. (RR48:194-95). 

 Later in 2012, Appellant approached Pinzon as she cleaned a bathroom at 

the Express Inn and exposed his erect penis to her. (RR48:101-04, 108). 

 

 While in jail awaiting trial on the instant offense, Appellant violated the 

rules by disobeying staff orders and tattooing himself. (RR48:147-49; 

RR49:132-33). 

Appellant argues that he has no prior convictions for violent offenses. 

(Appellant’s Br. at 124). Appellant is incorrect. In 1994, he was convicted of 

resisting arrest after he resisted arrest and bit two police officers. (RR48:114-16; 
177

SX#189). In 1995, Appellant was convicted of aggravated assault, deadly weapon 

after he made repeated threatening phone calls to his sister-in-law Courtney 

Johnson. (RR47:132-34, 140-41, 143; SX#169). In 2004, Appellant was 

convicted of robbery and evading arrest after he robbed Salmeron of her truck in 

her driveway. (RR47:175-76; SX#171). In 2004, Appellant was also convicted of 

the offense of violation of a protective order when he tried to kick Daphne’s door 

in. (RR47:79-80, 97; SX#166). 

Additionally, the State presented substantial evidence of unadjudicated 

offenses, many of which involved violence: the domestic violence between 

Appellant and Franks, including when he threw a burning piece of wood onto her 

patio; the domestic violence between Appellant and Daphne; the assault on Jenkins 

while in prison; and, the time he exposed himself to Pinzon. 

The State notes that many of Appellant’s most violent offenses, both 

adjudicated and unadjudicated, involve violence against women: Franks, Daphne, 

Salmeron, Pinzon, and Nancy. Appellant apparently has no trouble threatening, 

hitting, punching, kicking, strangling or robbing a woman. He has no problem 

setting a woman on fire. His history also demonstrates an inability to follow the 

rules, whether he is in the free world, whether he is in prison, or whether he is in 

jail awaiting trial on a charge of capital murder. Cf. Reese v. State, 33 S.W.3d 

238, 247 (Tex. Crim. App. 2000) (noting that it was in capital “[defendant’s] best 
178

interest to behave well while in jail awaiting trial”). Appellant blames all of his 

offenses on his drug use and depression. (RR49:99-100). Importantly, multiple 

witnesses – including Appellant’s own experts – testified that drugs are available 

in prison. (RR47:253, 272; RR48:47, 69, 72; RR50:85-86; RR51:37, 52, 63). 

Viewed in the light most favorable to the verdict, the evidence here is more 

than sufficient to support the jury’s finding beyond a reasonable doubt that 

Appellant would constitute a continuing threat to society. The evidence is 

sufficient to support the jury’s answer to the future dangerousness special issue. 

Issue 50 should be overruled. 

STATE’S RESPONSE TO ISSUE NOS. 51 THROUGH 53: THE TRIAL COURT PROPERLY 

DENIED APPELLANT’S REQUESTED JURY INSTRUCTIONS AND OVERRULED HIS 

OBJECTIONS TO THE CHARGE.

 In Issues 51, 52, and 53, Appellant contends that the trial court erred in 

denying his requested instructions and overruling his objections to the court’s 

punishment charge. (Appellant’s Br. 129-38). Appellant’s contentions lack merit 

and should be overruled. 

Pertinent Facts 

 Prior to trial, Appellant filed Pre-Trial Motion No. 63, “Defendant’s 

Requested Instructions for Punishment Charge.” (CR3:660-73). In that motion, 

Appellant requested 13 instructions to be included in the court’s punishment 

charge. He also requested 2 additional special verdict forms. (CR3:660-73). 
179

Appellant also filed Pre-Trial Motion No. 64, “Defendant’s Objections to the 

Charge at Punishment.” (CR3:641-58). In this motion, Appellant raised 61 

objections to the trial court’s punishment charge. (CR3:641-58). 

 Both of Appellant’s motions were presented during a hearing outside the 

presence of the jury. (RR51:92-106). Both of Appellant’s motions were denied. 

(RR51:92-106). 

Analysis 

Issues 51, 52, and 53 are inadequately briefed. Tex. R. App. P. 38.1(h). In 

three issues, Appellant asserts 76 challenges to the court’s punishment charge. 

The bulk of his briefing on these issues, however, consists of simply a shorthand 

recitation of the challenges raised in Pre-Trial Motion Nos. 63 and 64. Only 15 of 

the 76 challenges contain citations to authority. Appellant neither challenges the 

reasoning of the existing case law nor asserts any novel legal arguments to support 

his claims. Conclusory assertions of error, unsupported by substantive legal 

analysis, present nothing for review. See Rocha v. State, 16 S.W.3d 1, 20 (Tex. 

Crim. App. 2000). Moreover, this Court has held that an issue that embraces more 

than one legal theory is multifarious and risks rejects on that basis alone. See 

Davis v. State, 329 S.W.3d 798, 803 (Tex. Crim. App. 2010). Without adequate 

briefing, the State cannot respond to Appellant’s complaints. Issues 51, 52, and 
180

53 should be overruled as multifarious and inadequately briefed. See Wood v. 

State, 18 S.W.3d 642, 649 n.6 (Tex. Crim. App. 2000). 

To the extent that the State is able to discern Appellant’s objections or 

requested instruction, the State agrees that with Appellant his claims are foreclosed 

by well-settled law. (See Appellant’s Br. p. 129). Where possible, the State has 

attempted to provide the Court with a citation to the applicable statute or to 

authority wherein the same or similar issue, instruction, or objection has been 

addressed and rejected. 

Issue #51: General Punishment Instructions by Defense 

 51.1: Roberts v. State, 220 S.W.3d 521, 531 (Tex. Crim. App. 2007). 

 51.2: An instruction regarding the burden of proof as to extraneous 

offenses was included in the charge. (CR14:4517). 

 51.3: Saldano, 232 S.W.3d at 105-07. 

 51.4: Mosley v. State, 983 S.W.2d 249, 261 n.16 (Tex. Crim. App. 

1998). 

 51.5: Saldano, 232 S.W.3d at 105-07. 

 51.6: Estrada v. State, 313 S.W.3d 274, 306-07 (Tex. Crim. App. 

2010). 

 51.7-51.9: Saldano, 232 S.W.3d at 105-07. 

 51.10-51.11: Tex. Code Crim. Proc. Ann. art. 37.071, § 2(a); Cantu v. 

State, 939 S.W.2d 627, 644 (Tex. Crim App. 1997). 
181

 51.12: Renteria v. State, 206 S.W.3d 689, 709 (Tex. Crim. App. 

2006). 

 51.13: Duffy v. State, 567 S.W.2d 197, 208 (Tex. Crim. App. 1978). 

 51.14-51.15: Green v. State, 912 S.W.2d 189, 195 (Tex. Crim. App. 

1995). 

 51.16: Narvaiz v. State, 840 S.W.2d 415, 427 (Tex. Crim. App. 

1992). 

 51.17: Paulson v. State, 28 S.W.3d 570, 582 (Tex. Crim. App. 2001). 

Issue #52: Instructions Regarding Future Dangerousness 

 52.1: Jackson v. State, 992 S.W.2d 469, 477-79 (Tex. Crim. App. 

1999). 

 52.2: Jackson, 992 S.W.2d at 479 (citing Matchett v. State, 941 

S.W.2d 922, 937 (Tex. Crim. App. 1997)). 

 52.3: Jackson v. State, 33 S.W.3d 828, 833-34 (Tex. Crim. App. 

2000). 

 52.4: Russeau v. State, 291 S.W.3d 426, 434 (Tex. Crim. App. 2009). 

 

 52.5-52.15: Blue v. State, 125 S.W.3d 491, 504-05 (Tex. Crim. App. 

2003). 

 52.16: Russeau, 291 S.W.3d at 436. 

 52.17: Russeau, 291 S.W.3d at 436. 

 52.18-52.20: Saldano, 232 S.W.3d at 106-07. 

 52.21: Espada v. State, No. AP-75,219, 2008 Tex. Crim. App. 

Unpub. LEXIS 806, at *39-40 (Tex. Crim. App. 2008) (not designated 

for publication). 
182

 52.24-52.25: Saldano, 232 S.W.3d at 105-07. 

 52.26: Leza v. State, 351 S.W.3d 344, 362 (Tex. Crim. App. 2011). 

 52.27: Espada, 2008 Tex. Crim. App. Unpub. LEXIS at *50-51. 

Issue #53: Instructions Regarding Mitigation 

 53.1: Rhoades v. State, 934 S.W.2d 113, 128-29 (Tex. Crim. App. 

1996). 

 53.2-53.3: Espada, 2008 Tex. Crim. App. Unpub. LEXIS at *46-47. 

 53.4-53.5: Tex. Code Crim. Proc. Ann. art. 37.071. 

 53.6: Soliz v. State, 432 S.W.3d 895, 904 (Tex. Crim. App. 2014). 

 53.7: Cantu, 939 S.W.2d at 627 (citing Robertson v. State, 871 

S.W.2d 701, 711-12 (Tex. Crim. App. 1993)). 

 53.8-53.9: Tex. Code Crim. Proc. Ann. art. 37.071, § 2(e-f). 

 53.10: Thuesen v. State, No. AP-76,375, 2014 Tex. Crim. App. 

Unpub. LEXIS 191, at *159-60 (Tex. Crim. App. Feb 26, 2014) (not 

designated for publication). 

 53.11-53.12: Soliz, 432 S.W.3d at 904-05. 

 

 53.13: Cantu, 939 S.W.2d at 648-49. 

 53.14-53.16: Russeau, 291 S.W.3d 434-36. 

 53.17: Duffy, 567 S.W.2d at 204. 

 53.18: Cantu, 939 S.W.2d at 648-49. 

 53.19-53.22: Tex. Code Crim. Proc. Ann. art. 37.071, § 2(e-f). 

 53.23: Russeau, 291 S.W.3d at 436. 
183

 53.24-25: Raby v. State, 970 S.W.2d 1, 9 (Tex. Crim. App. 1998). 

 53.26: Mosley, 983 S.W.2d at 261 n.16. 

 53.27: Raby, 970 S.W.2d at 9. 

 53.29: Saldano, 232 S.W.3d at 105-07. 

 53.31-53.32: Saldano, 232 S.W.3d at 105-07. 

 The trial court did not abuse its discretion in denying Appellant’s requested 

instructions. The trial court did not abuse its discretion in overruling Appellant’s 

objections to the charge. At a minimum, the rulings fall within the zone of 

reasonable disagreement. See Weatherred, 15 S.W.3d at 542. 

Issues 51, 52, and 53 should be overruled. 

STATE’S RESPONSE TO ISSUE NOS. 54 THROUGH 65: THE TRIAL COURT PROPERLY 

DENIED APPELLANT’S CHALLENGES TO THE DEATH PENALTY STATUTE. 

In Issues 54 through 65, Appellant challenges the constitutionality of the 

Texas death penalty statute. He acknowledges that these issues have been 

previously submitted to this Court and overruled, citing Saldano, 232 S.W.3d 77, 

but invites the Court to review its prior stance on these issues. He claims that he 

asserts these issues not to cause unnecessary litigation but to preserve the issues for 

federal court review. (Appellant’s Br. at 138). 

In Issue 54, Appellant contends the statute under which he was sentenced to 

death violates the Eighth Amendment by allowing the jury too much discretion in 
184

determining who should live and who should die and results in the arbitrary and 

capricious imposition of the death penalty. (Appellant’s Br. at 138). 

In Issue 55, Appellant contends that the Texas death penalty statute violates 

the due process mandates of the Fourteenth Amendment because it implicitly puts 

the burden of proving the mitigation special issue on him rather than placing the 

burden on the State to prove beyond a reasonable doubt that no circumstances 

warrant a life sentence rather than a death sentence. (Appellant’s Br. at 139). 

In Issue 56, Appellant contends the trial court erred in denying his motion to 

hold that Article 37.071, § 2(e) and (f) violates Article I, §§ 10 and 13 of the Texas 

Constitution. (Appellant’s Br. at 140). 

In Issue 57, Appellant contends that the Texas death penalty scheme violates 

the due process protections of the U.S. Constitution because it does not require the 

State to prove the absence of sufficient mitigating circumstances beyond a 

reasonable doubt, contrary to Apprendi v. New Jersey, 530 U.S. 466 (2000), and its 

progeny. (Appellant’s Br. at 140). 

In Issue 58, Appellant contends that the Texas death penalty scheme violates 

his rights against cruel and unusual punishment and to due process of law under 

the Eighth and Fourteenth Amendments by requiring at least ten “no” votes for the 

jury to return a negative answer to a punishment special issue. (Appellant’s Br. at 

141). 
185

In Issue 59, Appellant contends that the Texas death penalty scheme violates 

his rights against cruel and unusual punishment, to an impartial jury, and to due 

process of law under the Sixth, Eighth, and Fourteenth Amendments because 

vague, undefined terms in the punishment jury instructions effectively determine 

the difference between a life or death sentence. (Appellant’s Br. at 142). 

In Issue 60, Appellant contends that the trial court erred in overruling his 

motion to hold Art. 37.071, § 2(e) and (f) unconstitutional because it fails to 

require the jury to consider all mitigating evidence. (Appellant’s Br. at 143). 

In Issue 61, Appellant contends that the mitigation special issue is 

unconstitutional because it fails to place the burden of proof on the State to prove 

that aggravating evidence exists beyond a reasonable doubt. (Appellant’s Br. at 

141). 

In Issue 62, Appellant claims that the mitigation special issue is 

unconstitutional under the Eighth and Fourteenth Amendments to the U.S. 

Constitution because it permits an open-ended discretion which was condemned by 

Furman v. Georgia, 408 U.S. 238 (1972). (Appellant’s Br. at 144). 

In Issue 63, Appellant contends that Texas’ statutory capital sentencing 

scheme is unconstitutional under the Eighth and Fourteenth Amendments because 

it lacks meaningful appellate review. (Appellant’s Br. at 144). 
186

In Issue 64, Appellant contends that the trial court erred in overruling his 

motion to quash the indictment as being unconstitutional based on the numerous 

constitutional defects of the Texas death penalty scheme. (Appellant’s Br. at 145). 

In Issue 65, Appellant contends that the cumulative effect of these alleged 

constitutional violations denied him due process of law in violation of the Fifth and 

Fourteenth Amendments of the U.S. Constitution and due course of law under 

Article I, § 19 of the Texas Constitution. (Appellant’s Br. at 147). 

Appellant invites the Court to revisit its prior decisions on these issues, 

which he agrees have all been previously overruled. See Appellant’s Brief at 138; 

Saldano, 232 S.W.3d at 107-09 (overruling multiple challenges to death penalty 

statute); Escamilla, 143 S.W.3d at 828-829 (overruling similar challenges). 

Appellant presents no new arguments for the State to address. Accordingly, the 

State asks this Court to decline his invitation to revisit these legal claims and to 

overrule issues 54 through 65. 
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