Nos. 03-14-00722-CR; 03-14-00723-CR; 03-14-00724-CR

In the Court of Appeals for the Third District

Austin, Texas

Mark Fruge,

Appellant

v.

The State of Texas,

Appellee

Appeal from the 331st Judicial District Court

Travis County, Texas

Cause Numbers D-1-DC-13-200256; D-1-DC-13-200257;

D-1-DC-13-200259

Honorable Judge David Crain, Presiding

STATE’S BRIEF

Rosemary Lehmberg

District Attorney

Travis County, Texas

Matthew Foye

Assistant District Attorney

State Bar No. 24043661

P.O. Box 1748

Austin, Texas 78767

512-854-9400 (phone)

512-854-4810 (fax)

Matthew.Foye@traviscountytx.gov

AppellateTCDA@traviscountytx.gov

Oral argument is not requested

ACCEPTED

03-14-00724-CR

7572436

THIRD COURT OF APPEALS

AUSTIN, TEXAS

10/28/2015 9:58:27 AM

JEFFREY D. KYLE

CLERK

 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 10/28/2015 9:58:27 AM JEFFREY D. KYLE Clerk
ii

TABLE OF CONTENTS

INDEX OF AUTHORITIES...................................................... iv

STATEMENT REGARDING ORAL ARGUMENT...................... vi

NOTE CONCERNING ABBREVIATIONS ................................ vi

STATEMENT OF THE CASE.................................................. vi

STATEMENT OF FACTS .........................................................1

SUMMARY OF THE STATE’S ARGUMENT .............................7

STATE’S ARGUMENT.............................................................8

Reply to Point One .................................................................8

The trial court did not err in granting the State’s challenge for

cause because the veniremember said he would hold the State to

a higher burden of proof than required by law. ..........................8

Beyond a Reasonable Doubt .................................................9

Appellant’s Case Law Inapplicable....................................... 11

Any Error Was Harmless..................................................... 12

Reply to Point Two ...............................................................14

The trial court did not err in admitting evidence of a bad act by

Appellant because the bad act was same-transaction contextual

evidence. ................................................................................ 14

Admissible as Same–Transaction Contextual Evidence......... 15

Admissible as Evidence of Flight ......................................... 18

Admissible as Evidence of Intent ......................................... 20

Admissible as Evidence of Identity....................................... 22

Admissible Under Tex. R. Evid. 403 Balancing Test ............. 23

Any Error Was Harmless..................................................... 25

Appellant’s Trial Strategy Was Successful........................ 26

Little Time Spent Developing Evidence............................. 28

No Unfair Surprise or Lack of Notice................................ 29

Overwhelming Evidence of Guilt...................................... 30

No Risk of Undue Punishment ........................................ 31
iii

Conclusion ..................................................................... 32

PRAYER ...............................................................................33

CERTIFICATE OF COMPLIANCE AND SERVICE..................34

Veniremember 12’s Responses...............................Appendix A

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

INDEX OF AUTHORITIES

Cases

Alba v. State, 905 S.W.2d 581 (Tex. Crim. App. 1995)(overruled on

other grounds).................................................................... 18, 19

Brown v. State, No. 07-99-2511-CR, 2000 Tex. App. LEXIS 7700

(Tex. App. — Amarillo 2000, no pet.)(not designated for

publication) ........................................................................ 29, 32

Chambers v. State, 866 S.W.2d 9 (Tex. Crim. App. 1993, cert. den’d)

.................................................................................................9

Colburn v. State, 996 S.W.2d 511 (Tex. Crim. App. 1998) ...............9

Coleman v. State, 881 S.W.2d 344 (Tex. Crim. App. 1994)...... 10, 12

De La Paz v. State, 279 S.W.3d 336 (Tex. Crim. App. 2009) .......... 15

Devoe v. State, 354 S.W.3d 457 (Tex. Crim. App. 2014)... 14, 15, 16,

17, 18, 19

Gamboa v. State, 296 S.W.3d 574 (Tex. Crim. App. 2009) ............ 13

Geesa v. State, 820 S.W.2d 154 (Tex. Crim. App. 1991)................ 10

Jackson v. State, 822 S.W.2d 18 (Tex. Crim. App. 1990) .............. 10

Jacobs v. State, 787 S.W.2d 397 (Tex. Crim. App. 1990) ................8

Jessop v. State, 368 S.W.3d 653 Tex. App. — Austin 2012, no pet.)

............................................................................................... 15

Johnson v. State, 263 S.W.3d 405 (Tex. App. — Waco 2008, pet.

ref’d)........................................................................................ 10

Jones v. State, 982 S.W.2d 386 (Tex. Crim. App. 1998) ................ 12

King v. State, 953 S.W.2d 266 (Tex. Crim. App. 1997) ...9, 26, 28, 30

Kotteakos v. United States, 328 U.S. 750 (1946)........................... 26

McCullen v. State, 372 S.W.2d 693 (Tex. Crim. App. 1963) ........... 22

Miller v. State, 667 S.W2d 773 (Tex. Crim. App. 1984).................. 22

Moses v. State, 105 S.W.3d 622 (Tex. Crim. App. 2003) ............... 18

Murphy v. State, 112 S.W.3d 592 (Tex. Crim. App. 2003) ............. 11

Narvaiz v. State, 840 S.W.2d 415 (Tex. Crim. App. 1992) ...............8

Paulson v. State, 28 S.W.3d 570 (Tex. Crim. App. 2000)............... 10

Pondexter v. State, 942 S.W.2d 577 (Tex. Crim. App. 1996) .......... 16

Prible v. State, 175 S.W.3d 724 (Tex. Crim. App. 2005) ................ 14

Reese v. State, 33 S.W.3d 238 (Tex. Crim. App. 2000).................. 24

Rogers v. State, 853 S.W.2d 29 (Tex. Crim. App. 1993)................. 15

Wainwright v. Witt, 469 U.S. 412 (1985) ........................................9

Wyatt v. State, 23 S.W.3d 18 (Tex. Crim. App. 2000).................... 15
v

Statutes

Tex. Code Crim. Proc. Art. 35.16...................................................8

Tex. Code Crim. Proc. Art. 37.07................................................. 32

Rules

Tex. R. App. P. 44.2.............................................................. 12, 26

Tex. R. Evid. 403 ........................................................................ 23

Tex. R. Evid. 404 ........................................................................ 18
vi

STATEMENT REGARDING ORAL ARGUMENT

The State believes that oral argument is unnecessary because

the facts and legal arguments are adequately presented in the briefs

filed by the parties. Therefore, the State is not requesting oral

argument.

NOTE CONCERNING ABBREVIATIONS

In this brief, the State refers to the Clerk's Record as “CR”

followed by the last three digits of the appellate cause number and

the page number (e.g., CR(-123) 456). The State refers to the

Reporter's Record as “RR” followed by the volume number and then

the page number (e.g., RR v.4, 567). Exhibits are referred to by “St.

Ex.” or “Def. Ex.” and the exhibit number (e.g., St. Ex. 123)

STATEMENT OF THE CASE

Appellant was indicted in multiple counts and indictments for

several felony offenses, as follows: 1

D-1-DC-13-200256

Count 1 Aggravated Assault— Deadly Weapon 2nd degree

D-1-DC-13-200257

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

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

Count 1 Attempted Capital Murder 1st degree

Count 2 Aggravated Assault— Public Servant 1st degree

D-1-DC-13-200259

Count 1 Aggravated Robbery 1st degree

Appellant pleaded not guilty. A jury trial took place in all three

Cause Numbers from October 13 to 17, 2014. CR(-722) 411; CR(-

723) 415; CR(-724) 136. Appellant was convicted of Aggravated

Assault— Deadly Weapon, Aggravated Assault— Public Servant,

and Aggravated Robbery. Id. Appellant was acquitted of Attempted

Capital Murder. CR(-723) 414. On October 20, 2014, the jury

assessed Appellant’s punishment at life imprisonment in each of

the three Cause Numbers. CR(-722) 421; CR(-723) 424; CR(-724)

147. Appellant filed a timely notice of appeal in each cause on

November 3, 2014. CR(-722) 433; CR(-723) 432; CR(-724) 159. The

trial court certified Appellant’s right to appeal on November 6, 2014.

CR(-722) 435; CR(-723) 438; CR(-724) 161.
1

Nos. 03-14-00722-CR; 03-14-00723-CR; 03-14-00724-CR

In the Court of Appeals for the Third District

Austin, Texas

Mark Fruge,

Appellant

v.

The State of Texas,

Appellee

Appeal from the 331st Judicial District Court

Travis County, Texas

Cause Numbers D-1-DC-13-200256; D-1-DC-13-200257;

D-1-DC-13-200259

Honorable Judge David Crain, Presiding

STATE’S BRIEF

To the Honorable Third Court of Appeals:

Now comes the State of Texas and files this brief in response

to that of Appellant.

STATEMENT OF FACTS

Abraham Martinez was an employee of the armored car

company Guarda. RR v.6, 267. Martinez carried a firearm as part of

his duties. Id. On January 14, 2013, he was working at an area
2

known as Capital Plaza.2 RR v.6, 269. Capital Plaza is located at

5431 North I-35 Service Road. RR v.6, 248-9. One of the stores on

Martinez’s route was Fallas Discount. RR v.6, 270. Martinez entered

the Fallas Discount store and picked up the deposits. RR v.6, 271.

As he was leaving the store, he came around a pillar and there was

a person pointing a gun at him who said, “Give me your bag.” Id.

Martinez complied. The person also told Martinez to place his

weapon on the ground, which he did. Id. The man had on a dark

hoodie, dark jeans, and sunglasses. RR v.6, 271-2. The man put

Martinez’s firearm in the money deposit bag and headed toward the

exit of the Fallas Discount store. RR v.6, 272-3.

Working near the exit of the Fallas Discount store was a

cashier named Ann Marie Lozano. RR v.7, 17. Lozano was checking

out a customer when she suddenly saw a man in front of her

pointing a gun in her face. Id. The man pulled the trigger and she

ducked as the man fired two more times. Id. Lozano ducked under

her counter until she heard everyone stop screaming. RR v.7, 17-8.

This aggravated assault on Lozano was witnessed by Martinez. RR

v.6, 273-4. It was also witnessed by Theresa Shanklin, another

2 This location is misspelled in the record as “Capitol Plaza.”
3

employee of Fallas Discount store. RR v.7, 43-4. The perpetrator

then left the Fallas Discount store, and Shanklin witnessed him

running toward the back of the Capital Plaza. RR v.7, 44. The police

arrived within ten minutes. Id.

Austin Police Department (APD) Officer Roosevelt Granderson

was on patrol that day near the Embassy Suites Hotel when he

heard the call regarding a robbery in progress at Capital Plaza two

blocks away from his location. RR v.7, 79. While heading toward

Capital Plaza, Granderson was updated by radio that the

perpetrator was in a vehicle at Cameron Road and Highway (Hwy.)

290. RR v.7, 83. The perpetrator was reported to be in a silver

Mercury Grand Marquis. RR v.7, 84. APD Officer Aaron Pippin

joined the pursuit behind Granderson. RR v.7, 85. Granderson

observed the vehicle turning onto the Hwy. 183 service road from

the Hwy. 290 service road and began to pursue. Id.

After some time, the perpetrator turned onto a little road that

runs behind an H-E-B grocery store at the Springdale Shopping

Center located off of the Hwy. 183 service road. RR v.7, 88. While

driving on that road, all of a sudden the perpetrator stopped. RR

v.7, 89. When the perpetrator stopped, Granderson tried to get out
4

of his patrol car and draw his weapon. Id. As Granderson was about

to say, “Austin Police Department,” the perpetrator was already

getting out of his car. Id. The perpetrator had his gun, turned

around, and started firing. Id.

Granderson ducked behind his car door as some of the rounds

the perpetrator fired shot out his patrol car window. RR v.7, 89-90.

Granderson drew his weapon and returned fire. RR v.7, 90. At the

same time, Pippin was trying to get his car stopped and draw his

weapon. RR v.7, 155. Pippin fired three rounds before holding his

fire to make certain he did not hit Granderson. RR v.7, 156. The

perpetrator ran in front of his vehicle into a wooded area and

Granderson pursued while trying to give a description over the

radio. Id. Pippin started to follow Granderson. Id. Granderson

pursued until the perpetrator reached a tree line, at which point he

shouted, “Austin Police, stop!” Id. At that moment, the perpetrator

turned around and pointed his weapon at Granderson, who dove to

the ground. Id. The perpetrator fired a couple more shots and then

took off into the tree line. Id.

At that time Granderson began to feel a tingling in his knee.

Id. Pippin assisted Granderson in returning to their patrol cars. Id.
5

Granderson’s corporal called for EMS, who arrived at the scene and

checked Granderson. Id. It was at that time Granderson learned

that he had a gunshot wound. Id. Granderson had been shot in the

right knee. RR v.9, 33. EMS transported Granderson to

Brackenridge Hospital, where he underwent surgery for the gunshot

wound. RR v.7, 90.

Richard Harris was an Assistant Manager at a Dollar General

store located on Manor Road, just west of Hwy. 183. RR v.8, 145.

On January 14, 2013 he was getting off of work at around 3:00

p.m. Id. When he was going to his car he noticed a man coming out

from behind the Dollar General building. Id. The man came over to

Harris’s car as he was getting in. Id. The man produced a pistol and

told Harris that they were going for a ride. RR v.8, 146. The man got

into the backseat and Harris began driving according to the man’s

directions. Id. They made their way to Old Manor Road, where the

man told Harris to pull over and the man left Harris’s car. Id.

During their time in the car, the man told Harris that his name was

Mark, that “he had done something that he shouldn’t have,” and

that he needed to get out of the area. RR v.8, 146-7. The entire

incident in Harris’s car took about fifteen minutes. RR v.8, 146.
6

APD Officer John Ridenour was one of the officers engaged in

the hunt for the perpetrator following the Fallas Discount store

robbery and the shootout with Granderson and Pippin. RR v.8, 163-

4. Ridenour ran the license plate of the perpetrator’s vehicle and it

returned to an address of 9345 East Highway 290 Apt. 13104, also

known as the Rosemont Apartments. RR v.8, 164-5.3 Ridenour

heard, over the radio, that the perpetrator had forced someone at

gunpoint to drive him to Old Manor Road. RR v.8, 167. Ridenour

knew this location to be right next to the Rosemont Apartments. Id.

Upon learning this information, Ridenour headed to Old Manor

Road and then the Rosemont Apartments. RR v.8, 169. Upon

arriving at the Rosemont Apartments, Ridenour spotted someone

matching the description of the perpetrator about one hundred

yards away from him. RR v.8, 170. Ridenour yelled at the

perpetrator to get his attention and the perpetrator ran back toward

one of the buildings in the complex. RR v.8, 173. Ridenour got the

attention of two nearby officers and then followed the perpetrator.

RR v.8, 174. As Ridenour turned to face the building and readied

3 Although Ridenour testified that he was “not sure if it was 9435 or 9345,”

State’s Ex. 46 shows the address to be 9345 E. Hwy. 290.
7

his rifle, the perpetrator popped up in the breezeway of the building.

Id. Ridenour gave the perpetrator instructions to put his hands up,

which he did. Id. The perpetrator dropped a sweatshirt he had been

holding. Id. The perpetrator complied with orders to get down on his

hands and knees, and other officers were able to handcuff him. Id.

Ridenour checked the sweatshirt and found a gun and U.S.

currency wrapped in plastic inside. RR v.8, 175.

SUMMARY OF THE STATE’S ARGUMENT

Point One: Appellant argues that the trial court erred in granting a

State’s challenge for cause to a veniremember. Appellant argues

that granting the State’s challenge denied him a fair and impartial

jury.

Reply: The trial court did not err in granting the State’s

challenge for cause because the veniremember said he would hold

the State to a higher burden of proof than required by law. If this

Court finds that the trial court did err, the error did not deprive

Appellant of a lawfully constituted jury.
8

Point Two: Appellant argues that the trial court erred in allowing

the State to impeach a witness with Appellant’s prior bad act.

Reply: The trial court did not err in admitting evidence of a

bad act by Appellant because the bad act was same-transaction

contextual evidence. If this Court finds the bad act was extraneous,

it was properly admitted for purposes other than to show propensity

or conformity. If this Court finds that the trial court did err, the

error did not affect Appellant’s substantial rights.

STATE’S ARGUMENT

REPLY TO POINT ONE

The trial court did not err in granting the State’s challenge for

cause because the veniremember said he would hold the State

to a higher burden of proof than required by law.

The State may challenge a veniremember for cause who has a

bias or prejudice against any phase of the law upon which the State

is entitled to rely. Tex. Code Crim. Proc. Art. 35.16(b)(3). A

veniremember who would hold the State to a burden of proof higher

than beyond a reasonable doubt is challengeable for cause. Narvaiz

v. State, 840 S.W.2d 415, 427 (Tex. Crim. App. 1992); Jacobs v.

State, 787 S.W.2d 397, 404 (Tex. Crim. App. 1990). In reviewing the
9

trial court’s decision to dismiss a veniremember upon a sustained

challenge for cause, considerable deference is given to the trial

court because it is in the best position to evaluate the

veniremember’s demeanor and responses. Wainwright v. Witt, 469

U.S. 412, 429 (1985); Chambers v. State, 866 S.W.2d 9, 22 (Tex.

Crim. App. 1993, cert. den’d). When a veniremember’s answers are

vacillating, unclear, or contradictory, particular deference is

accorded to the trial court’s decision. King v. State, 29 S.W.3d 556,

568 (Tex. Crim. App. 2000); Colburn v. State, 996 S.W.2d 511, 517

(Tex. Crim. App. 1998).

In this case, the trial court excused Veniremember No. 12,

Jason Samaniego–Krant, for cause on the grounds that he would

hold the State to a burden of proof higher than beyond a reasonable

doubt.4

Beyond a Reasonable Doubt

In Paulson v. State, the Court of Criminal Appeals dispensed

with the requirement that a jury charge give a definition of

4 Samaniego-Krant’s complete responses in the record are appended as

Appendix A.
10

reasonable doubt. 28 S.W.3d 570, 573 (Tex. Crim. App.

2000)(overruling Geesa v. State, 820 S.W.2d 154 (Tex. Crim. App.

1991)). However, it remains clear that reasonable doubt is not

“beyond all doubt,” “100 percent certain,” nor “absolute certainty.”

See Coleman v. State, 881 S.W.2d 344, 359-60 (Tex. Crim. App.

1994); Jackson v. State, 822 S.W.2d 18, 28 (Tex. Crim. App. 1990);

Johnson v. State, 263 S.W.3d 405, 417-8 (Tex. App. — Waco 2008,

pet. ref’d).

Veniremember Samaniego–Krant stated, in his own words,

that he “would have to be absolutely certain.” RR v.6, 88-9. Further,

when asked if he would require 100 percent certainty he responded,

“Yeah.” RR v.6, 192. The trial prosecutor then explained the law

regarding the State’s burden of proof to which Samaniego–Krant

replied that he would need to be “pretty darn certain.” Id. At this

point, the trial court asked, “And when you say that, would you

need to be 100 percent certain?” Id. Samaniego–Krant

unequivocally answered, “Yes.” Id. He also said that he would not

hold the State to a higher burden of proof. RR v.6, 194. And, he also

answered a question from trial counsel about the State’s burden of

proof by referring to the presumption of innocence. RR v.6, 193.
11

Samaniego-Krant repeatedly gave answers indicating he would

hold the State to a burden of proof of 100 percent certainty.

Although some of his answers were also vacillating and

contradictory, the trial court was in the best position to evaluate his

demeanor and responses. The trial court determined that he could

not follow the law, and deference should be given to the trial court’s

determination.

Appellant’s Case Law Inapplicable

Appellant argues that “prospective jurors may form their own

definitions of proof beyond a reasonable doubt” and cites Murphy v.

State, 112 S.W.3d 592 (Tex. Crim. App. 2003) and Garrett v. State,

851 S.W.2d 853 (Tex. Crim. App. 1993). However, both of those

cases dealt with a jury’s consideration of future dangerousness

(special issue number two) in a death penalty case.

The Court of Criminal Appeals distinguished consideration of

future dangerousness from the definition of beyond a reasonable

doubt at guilt-innocence:

“In Garrett, this Court held a veniremember is not

subject to challenge for cause simply because the
12

veniremember would set his reasonable doubt threshold

higher than the legal minimum in order to affirmatively

answer special issue two. Garrett is clearly

distinguishable because the trial court was entitled to

find [the veniremember] would not find appellant guilty

even if the State proved its case beyond a reasonable

doubt.”

Coleman v. State, 881 S.W.2d 344, 360 (Tex. Crim. App. 1994).

Therefore, this is not just a matter of “higher threshold”, as

Appellant claims. Rather, Appellant’s position would allow any

veniremember to hold the State to a higher burden by simply

making his or her personal definition of “beyond a reasonable

doubt” be “100 percent certainty” or “beyond all doubt.”

Any Error Was Harmless

The issue in this case is an application of Article 35.16(b)(3),

so it is not of constitutional dimension and any error must be

disregarded unless it affected substantial rights. Tex. R. App. P.

44.2(b); Jones v. State, 982 S.W.2d 386, 391-92 (Tex. Crim. App.

1998). In the context of erroneous exclusions of veniremembers,

this means that the record must show that “the error deprived the

defendant of a lawfully constituted jury.” Jones, 982 S.W.2d at 394.
13

Appellant asks this Court to find that any error in excluding

Veniremember Samaniego–Krant is not subject to a harmless error

review. However, Appellant relies upon authority that is specific to

excluding veniremembers based upon their views on the death

penalty in death penalty cases. Moreover, Appellant’s claim has

already been expressly rejected by the Court of Criminal Appeals:

“Appellant relies on Gray v. Mississippi to support

his position. But the Supreme Court has explained that

the broad language in Gray was too sweeping to be

applied literally and should not be extended beyond the

context of the “‘erroneous Witherspoon exclusion’ of a

qualified juror in a capital case.” This Court has also held

that, when Witherspoon error is not at issue, the

erroneous excusal of a veniremember will call for reversal

“only if the record shows that the error deprived the

defendant of a lawfully constituted jury.” Under Jones,

the question is whether or not the jurors who actually sat

were impartial.”

Gamboa v. State, 296 S.W.3d 574, 590 (Tex. Crim. App. 2009)

(internal footnotes omitted).

Appellant points to no evidence in the record, and has made

no showing of any kind, that the exclusion of Samaniego–Krant

deprived him of a lawfully constituted jury or that the jurors who

actually sat were not impartial. Therefore, even if the trial court

erred in granting the State’s challenge for cause on Samaniego–
14

Krant, Appellant’s substantial rights were not affected, and the

judgment should be affirmed.

REPLY TO POINT TWO

The trial court did not err in admitting evidence of a bad act by

Appellant because the bad act was same-transaction contextual

evidence.

Appellant argues that the trial court erred in admitting

evidence of the aggravated kidnapping of Richard Harris.5

A trial court’s ruling on the admissibility of evidence is

reviewed under an abuse-of-discretion standard. Devoe v. State,

354 S.W.3d 457, 469 (Tex. Crim. App. 2014); Prible v. State, 175

S.W.3d 724, 731 (Tex. Crim. App. 2005). As long as the trial court's

ruling is within the "zone of reasonable disagreement," there is no

abuse of discretion, and the trial court’s ruling will be upheld.

Devoe, 354 S.W.3d at 469; Prible, 175 S.W.3d at 731. Moreover, if a

trial court’s evidentiary ruling is correct on any applicable theory of

law, it will not be disturbed, even if the trial judge gave the wrong

5 Discussed in detail in the Statement of Facts on page 5.
15

reason for his correct ruling. Devoe, 354 S.W.3d at 469; Jessop v.

State, 368 S.W.3d 653, 686 (Tex. App. — Austin 2012, no pet.).

Admissible as Same–Transaction Contextual Evidence6

Evidence of another crime, wrong, or act is admissible as

same–transaction contextual evidence where “several crimes are

intermixed, or blended with one another, or connected so that they

form an indivisible criminal transaction, and full proof by

testimony... of any one of them cannot be given without showing

the others.” Devoe, 354 S.W.3d at 469; Wyatt v. State, 23 S.W.3d

18, 25 (Tex. Crim. App. 2000)(quoting Rogers v. State, 853 S.W.2d

29, 33 (Tex. Crim. App. 1993)). The jury is entitled to know all

relevant surrounding facts and circumstances of the charged

offense. Devoe, 354 S.W.3d at 469. Under Rule 404(b), same–

transaction contextual evidence is admissible when the offense

would make little or no sense without also bringing in that

evidence. Devoe, 354 S.W.3d at 469; Wyatt, 23 S.W.3d at 25

6 Appellant asserts that he was never charged with this crime. Appellant’s

Brief, 12. However, the record indicates that Appellant was in fact charged with

this offense in Cause No. D-1-DC-15-200255. RR v.3, 4. For consistency, the

State will refer to the incident involving Mr. Harris as “the aggravated

kidnapping.”
16

(quoting Pondexter v. State, 942 S.W.2d 577, 584 (Tex. Crim. App.

1996)).

The facts of this case are very similar to those in Devoe.

7 In

Devoe, the Court of Criminal Appeals found that a theft of a gun, an

aggravated assault, and a theft of a truck in Llano, Texas; a murder

and attempted murder in a bar in Marble Falls, Texas; four

murders in a residence in Jonestown, Texas; and a theft of a car at

another residence in Greencastle, Pennsylvania, all constituted one

extended criminal episode. Devoe, 354 S.W.3d at 462-65. These

offenses covered a period of two days, from August 24th through

August 26th. Id. Devoe was tried for two of the murders in

Jonestown, but the Court of Criminal Appeals found that the entire

chain of events was admissible same–transaction contextual

evidence because the evidence was intermingled between all of the

events and Devoe did not rest between incidents. Id. at 470.

That is the situation in the cases before this Court. Appellant

committed one offense after another, in a continuous episode, and

without rest in between incidents. The weapons and stolen property

7 Given the lengthy exposition of facts in the Devoe opinion, it has been

appended as Appendix B.
17

from each incident were used or linked with each subsequent

incident. Evidence of the aggravated kidnapping of Harris was

necessary for the jury to understand the prolonged criminal episode

and to explain the timeline from the aggravated robbery at the

Fallas Discount store to when Appellant fled back to the Rosemont

Apartments where he was ultimately captured by police. The

aggravated kidnapping explains how Appellant got to his

apartment, and excluding it would have put a damaging hole in the

State’s case.

Appellant also contends that “evidence of the charged offense

was presented in its entirety prior to the extraneous offense.”

Appellant’s Brief, 15. However, this does not preclude the

admissibility of same–transaction contextual evidence. In Devoe, the

murders for which the defendant was tried occurred days before the

other offenses were committed, but the Court of Criminal Appeals

still found those subsequent offenses to be admissible as same–

transaction contextual evidence. 354 S.W.3d at 462-5.
18

Admissible as Evidence of Flight

Evidence of extraneous offenses is not admissible at the guilt

phase of a trial to prove that a defendant committed the charged

offense in conformity with a bad character. Tex. R. Evid. 404(b);

Devoe, 354 S.W.3d at 469. However, extraneous offense evidence

may be admissible when it has relevance apart from character

conformity. Devoe, 354 S.W.3d at 469; Moses v. State, 105 S.W.3d

622, 626 (Tex. Crim. App. 2003). For example, it may be admissible

to show proof of motive, opportunity, intent, preparation, plan,

knowledge, identity, or absence of mistake or accident. Id.

Even if this Court finds that the aggravated kidnapping was

not same–transaction contextual evidence, the aggravated

kidnapping was admissible as evidence of Appellant’s flight. It is

axiomatic that flight is admissible as a circumstance from which an

inference of guilt may be drawn. Devoe, 354 S.W.3d at 470; Alba v.

State, 905 S.W.2d 581, 586 (Tex. Crim. App. 1995)(overruled on

other grounds). If the extraneous offense is shown to be a

necessarily related circumstance of the defendant's flight, it may be

admitted to the jury. Id.
19

The cases before this Court again mirror the situation in

Devoe. In Devoe, the theft of the vehicle from Betty DeHart in

Greencastle, Pennsylvania was some two days after the murders for

which Devoe was tried. Devoe, 354 S.W.3d at 463-5. Devoe was

apprehended, after his flight with DeHart’s vehicle, with evidence

from his other crimes. Id. at 470. As in Devoe, Appellant was

apprehended after the aggravated kidnapping with evidence from

the other offenses he had committed that day.

In Alba, in which the court ruled that an extraneous offense

was admissible as evidence of flight, the appellant forced two men

to give him a ride in a car by showing a gun to one of them. Alba,

905 S.W.2d at 586. This incident occurred within an hour after

Alba had committed murder, deceived a police officer when he left

the crime scene, and abandoned his own car. Id.

The situation in the cases before this Court is even more

tightly intertwined than the offenses in Alba. The aggravated

kidnapping occurred immediately after Appellant abandoned his

own car while engaging in a shootout with Officers Granderson and

Pippin. The timeline in this case is even more compressed than

those in Devoe and Alba, making the evidence of Appellant’s flight
20

by the aggravated kidnapping of Mr. Harris even more relevant and

probative.

Admissible as Evidence of Intent

The aggravated kidnapping was also admissible as evidence of

Appellant’s intent. The key issue at trial was whether or not

Appellant had the specific intent to commit capital murder. Trial

counsel laid the ground work for this strategy during jury selection.

RR v.6, 145-150. Trial counsel specifically explored the situation of

someone shooting towards others while running from them. Id. Trial

counsel asked the venire panel, in that situation, “[i]s his intent to

slow them down or to hit them?” RR v.6, 146. Later, trial counsel

posed a rhetorical question to the venire panel, asking “Is his intent

to get away or is his intent to shoot somebody?” RR v.6, 147. Trial

counsel then asked “[i]f it’s not his intent, is it knowingly when he’s

doing that?” RR v.6, 148.

Trial counsel raised this theory during the State’s case-in-chief

on cross-examination of the State’s witnesses. Trial counsel asked

Officer Granderson questions about whether firing a weapon while
21

moving decreases one’s chances of hitting the target. RRv.7, 115,

117. Trial counsel asked similar question on cross-examination of

APD Detective Carlos Vallejo. RR v.7, 135-36.

During his testimony, Appellant admitted committing all of the

offenses for which he was on trial, except Attempted Capital

Murder. RR v.9, 55-66. When asked if it was his intent to shoot the

officers, he answered “[n]o, sir. I wasn’t trying to hurt anyone.” RR

v.9, 65. Appellant claimed that he was not trying to shoot the

officer, but that he “fired some shells over the car to get them to

shoot at me.” RR v.9, 59.

Furthermore, on cross-examination Appellant specifically

admitted to committing the offenses of aggravated robbery, and

aggravated assault with a deadly weapon. RR v.9, 73-4. Appellant

then answered questions that confirmed each element of the offense

of aggravated assault against a public servant. RR v.9, 77-82.

However, he continued to maintain his innocence with regard to the

Attempted Capital Murder Charge, stating, “[m]y intention was not

to hurt anyone.” RR v.9, 79.

Appellant claimed he only set out that day to get police officers

to kill him. RR v. 9, 55. He claimed throughout his testimony that
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his conduct that day was intended not to hurt anyone, but to bring

the police to his location. RR v. 9, 55, 57-59. However, when the

aggravated kidnapping occurred, Appellant had already

encountered and eluded the police. RR v.9, 60. Therefore, the

aggravated kidnapping evidence was highly probative to prove that

Appellant’s intent was not to draw the police to him, since he had

already done so, but rather to get away from the police.

Given that Appellant’s strategy put his lack of intent to commit

capital murder at the center of the trial, evidence of the aggravated

kidnapping was admissible to prove his intent.

Admissible as Evidence of Identity

The aggravated kidnapping was also admissible as evidence of

Appellant’s identity. Identity is an element of an offense that the

State must prove beyond a reasonable doubt. See Miller v. State,

667 S.W2d 773, 775 (Tex. Crim. App. 1984); McCullen v. State, 372

S.W.2d 693, 695 (Tex. Crim. App. 1963).

There was specific evidence related to proving the element of

identity that occurred during the aggravated kidnapping offense.
23

While in the car and forcing Harris to drive at Appellant’s direction,

Appellant told Harris that “his name was Mark and he had done

something that he shouldn’t have, but he needed to get out of the

area.” RR v.8, 147. This admission was highly probative evidence

that Appellant, who was not apprehended until the Rosemont

Apartments, was the person who had committed the initial

aggravated robbery at the Fallas Discount Store. As Appellant

successfully escaped from the scene of every offense he committed

until he was apprehended at the Rosemont Apartments, it was

important for the State to account for every possible moment

between Appellant’s arrival at the Fallas Discount store and his

apprehension.

Admissible Under Tex. R. Evid. 403 Balancing Test

The probative value of the aggravated kidnapping evidence was

not substantially outweighed by the danger of unfair prejudice. Tex.

R. Evid. 403. In conducting a Rule 403 analysis, courts should

consider: (1) how probative is the evidence; (2) the potential of the

evidence to impress the jury in some irrational, but nevertheless
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indelible way; (3) the time the proponent needs to develop the

evidence; and (4) the proponent's need for the evidence. Reese v.

State, 33 S.W.3d 238, 240-41 (Tex. Crim. App. 2000).

In the case before the Court, the aggravated kidnapping

evidence was highly probative of Appellant’s identity and intent. The

aggravated kidnapping evidence’s probative nature as to identity

and intent are discussed in the immediately preceding sections.8

The potential for the aggravated kidnapping evidence to

impress the jury in an irrational but indelible manner is very low.

The aggravated kidnapping evidence was a small part of Appellant’s

conduct that day. Further, it was far less egregious than the other

evidence the jury had already heard concerning the events in the

Fallas Discount store and at the H-E-B. In both of those instances,

Appellant actually discharged his firearm and even shot one victim,

Granderson. By contrast, Harris was unharmed and Appellant did

not fire his weapon during the aggravated kidnapping.

Very little time was devoted to introducing the evidence of the

aggravated kidnapping. The aggravated kidnapping evidence was

introduced through a single witness, Harris, while there were

8 Discussed on page 20-23.
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seventeen total witnesses in the State’s case–in–chief.9 It also

involved the use of four exhibits out of some three hundred twentysix exhibits introduced by the State in the guilt-innocence phase.10

The State had great need for the evidence. It was the only

evidence that permitted the State to account for the time gap

between the end of the shootout with Granderson and Pippin at the

H-E-B and Appellant’s capture at the Rosemont Apartments. It was

also the only evidence of continued violent conduct after escaping

the police, which made it unique in proving Appellant’s intent.

Upon consideration of the Rule 403 balancing test factors, the

probative value of the aggravated kidnapping evidence was not

substantially outweighed by the danger of unfair prejudice.

Any Error Was Harmless

If this Court finds that the trial court did abuse its discretion

and that admission of the aggravated kidnapping evidence was

error, this Court should not reverse unless it finds that the error

9 One other witness, Susan O’Dell Gibson, testified to processing Harris’s

car for evidence but gave no testimony as to the facts of the aggravated

kidnapping. RR v.7, 69-70.

10 Three exhibits, State’s Ex. 218-220, were introduced through Harris. One

exhibit, State’s Ex. 132, was shown to Harris but had already been introduced.
26

affected Appellant’s substantial rights. Tex. R. App. P. 44.2(b). A

substantial right is affected when the error had a substantial and

injurious effect or influence in determining the jury’s verdict. King v.

State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997)(citing Kotteakos

v. United States, 328 U.S. 750, 776 (1946)). In these cases, the

Court should find that Appellant’s substantial rights were not

affected.11

Appellant’s Trial Strategy Was Successful

Appellant’s trial strategy was to admit that he was guilty of

Aggravated Robbery, Aggravated Assault, and Aggravated Assault

Against a Public Servant, but deny that he had the requisite specific

intent to commit the offense of Attempted Capital Murder.12 RR v.9,

55-66, 74-75, 79. Appellant was acquitted by the jury of the

11 Appellant asserts that the State “introduced photos early in the guilt

innocence phase of trial labeled ‘car jacking.’” Appellant’s Brief, 12. This is an

erroneous assertion. After searching the record, the State found no exhibits

labeled “car-jacking.” Nor were there any exhibits marked with “aggravated

kidnapping.”

12 Appellant makes no claim that the admission of the aggravated

kidnapping evidence in any way influenced his decision to testify. Indeed,

Appellant’s direct testimony covers some fourteen pages of the record, of which

only three and one-fifth pages relate to the aggravated kidnapping. Appellant’s

cross-examination testimony covers nine and two-fifths pages of the record, of

which one question mentions the aggravated kidnapping.
27

Attempted Capital Murder count. CR(-257) 413-14. Therefore, if it

was error to admit the aggravated robbery evidence, there was no

harm to Appellant because his trial strategy still succeeded.

In fact, his testimony about the aggravated kidnapping helped

his trial strategy. In an effort to support his strategy, he testified

numerous times about how he did not harm, or intend to harm,

other victims and witnesses that day. RR v.9, 57, 62-64.

Appellant also specifically testified that he “didn’t threaten”

Harris. RR v.9, 60. He added that he told Harris his first name

because he “was trying to make him feel at ease” and “just trying to

make him feel” that Appellant “wasn’t going to hurt him...” RR v.9,

61. Appellant also testified that he did not point his gun at Harris,

but just showed it to him and then put it in his pocket. RR v.9, 66.

Additionally, trial counsel advanced this strategy during

closing argument. Trial counsel devoted some five pages, out of

twelve in the record, to arguing that the State had failed to prove

the element of specific intent on the Attempted Capital Murder

charge. RR v.9, 115-120. Trial counsel later returned to that issue

once more. RR v.9, 124. Finally, trial counsel told the jury that,

unlike Attempted Capital Murder, Appellant was guilty of the
28

Aggravated Assault of a Public Servant count because “that’s the

proper charge.” RR v.9, 120.

Therefore, if it was error to admit the aggravated kidnapping

evidence, there was no harm to Appellant because he was acquitted

of the one count on which he maintained his innocence throughout

the trial.

Little Time Spent Developing Evidence

It took very little time to introduce evidence of the aggravated

kidnapping. Harris’s testimony and the exhibits are previously

mentioned.13 The State mentioned the aggravated kidnapping

evidence once during cross-examination of the Appellant. RR v.9,

75. The evidence of the aggravated kidnapping was mentioned only

once by the State in closing argument. RR v.9, 128. The aggravated

kidnapping evidence was never mentioned as character or

propensity evidence. See King, 953 S.W.3d at 273 (“that the State

did not emphasize the reports minimizes the deleterious effect, if

any, the documents had on the jury’s decision.”); Rodriguez, 974

13 Discussed on page 24-25.
29

S.W.2d at 370 (“Furthermore, no one mentioned the inadmissible

evidence again during the guilt/innocence phase of the trial. So, the

extent to which the jury may have recalled and assigned it weight is

questionable.”).

No Unfair Surprise or Lack of Notice

Nor was Appellant unfairly surprised by the State’s offering of

the aggravated kidnapping evidence at trial. See Brown v. State, No.

07-99-2511-CR, 2000 Tex. App. LEXIS 7700, at *12 (Tex. App. —

Amarillo 2000, no pet.)(not designated for publication)(“Moreover,

the admission of the extraneous evidence was not unannounced or

surprising. Quite the contrary, the State received permission from

the court to present it before doing so. Thus, reversal is not needed

as punishment to assure the State's compliance with the rules of

evidence.”) Appellant makes no claim of being surprised by the

evidence of the aggravated kidnapping. Rather, the record reflects

that Appellant was specifically advised of the State’s intent to try to

introduce the aggravated kidnapping evidence at trial. RR v.8, 141.
30

Appellant had more than five months’ advance notice that this

evidence might be introduced at trial. CR(–256) 144-46.

Overwhelming Evidence of Guilt

Further, there was overwhelming evidence of Appellant’s guilt.

See King, 953 S.W.2d at 273 (“While the case summaries and

disciplinary reports did contain some potentially harmful evidence,

that evidence was rendered insignificant by properly admitted

evidence of future dangerousness.”); Rodriguez, 974 S.W.2d at 370

(“Finally, though it was not free of conflict, ample evidence was

properly admitted which depicted appellant's guilt.”) As mentioned

above, sixteen witnesses and some three hundred twenty-two

exhibits were introduced in the State’s case-in-chief, separate from

any aggravated kidnapping evidence. Additionally, Appellant took

the stand and admitted committing the Aggravated Robbery, the

Aggravated Assault with Deadly Weapon, and the Aggravated

Assault Against a Public Servant. RR v.8, 56-59, 63-65, 73, 78-81.

Numerous witnesses identified Appellant as the perpetrator of

each offense. From the Fallas Discount store scene, Lozano and
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Shanklin identified Appellant as the person who robbed Martinez

and shot at Lozano and her register. RR v.7, 21, 45. From the crime

scene at the H-E-B, Pippin identified Appellant as the person who

engaged in a shootout with himself and Granderson. RR v.7, 158-

59. From the Rosemont Apartments scene, Ridenour identified

Appellant as the person he chased and took into custody. RR v.8,

175-76. The stolen bag holding the money and Martinez’s gun were

found in Appellant’s vehicle. RR v.7, 123-24. There was also an item

found in Appellant’s vehicle that had his name and the Rosemont

Apartment address on it. RR v.7, 124. Appellant’s vehicle was

linked to him through testimony and registration records. RR v.8,

108-110, 165, 186-88; St. Ex. 46. The money stolen from Martinez

and Appellant’s own gun, which matched the type of magazine

found in his vehicle, were found on Appellant. RR v.8, 181-85.

Therefore, the evidence of Appellant’s guilt was overwhelming.

No Risk of Undue Punishment

Evidence of the aggravated kidnapping was admissible during

the punishment phase of trial, and was so in the form that it came
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into evidence during guilt-innocence (i.e., the testimony of Harris

and exhibits). Tex. Code Crim. Proc. Art. 37.07; Brown, 2000 Tex.

App. LEXIS 7700 at 12. Therefore, it cannot be said that the

aggravated kidnapping evidence somehow induced the jury to

assess undue punishment. Brown, 2000 Tex. App. LEXIS 7700 at

12.

Conclusion

These combined factors show that, even if admission of the

aggravated kidnapping evidence was error, Appellant’s substantial

rights were not affected and the judgment should be affirmed.
33

PRAYER

The State requests that this Court overrule Appellant’s points of

error and affirm the trial court’s judgment.

Respectfully submitted,

Rosemary Lehmberg

District Attorney

Travis County

/s/ Matthew Foye

Matthew Foye

Assistant District Attorney

State Bar No. 24043661

P.O. Box 1748

Austin, Texas 78767

512-854-9400 (phone)

512-854-4810 (fax)

Matthew.Foye@traviscountytx.gov

AppellateTCDA@traviscountytx.gov
34

CERTIFICATE OF COMPLIANCE AND SERVICE

I certify that this brief contains 5,957 words, based upon the

computer program used to generate this brief and excluding words

contained in those parts of the brief that Texas Rule of Appellate

Procedure 9.4(i) exempts from inclusion in the word count, and that

this brief is printed in a conventional, 14-point typeface.

I further certify that, on the 28th day of October, 2015, a true and

correct copy of this brief was served, by U.S. mail, electronic mail,

telephonic document transmission, or electronically through the

electronic filing manager, to Appellant’s attorney, Ariel Payan, 1012

Rio Grande Street, Austin, Texas 78701.

/s/ Matthew Foye

Matthew Foye

Assistant District Attorney
Appendix A

Veniremember 12’s Responses
kind of tricky where people kind of may feel like -- for 

me it feels like beyond a reasonable doubt is to be like 

certain -- to me. And so that kind of thing is okay. 

I'm just saying that if you were sitting 

at the end of the day after hearing all the evidence and 

you said, Well, there's this one little doubt over here 

and it's not even reasonable, because it would involve 

martians coming in a spaceship; but it's a doubt so you 

have to find him not guilty. That's the kind of thing 

-- that's an extreme example, but that's the sort of 

thing that we're talking about. You-all feel, like, you 

could hear all the evidence and if you are convinced 

beyond a reasonable doubt that you would be able to

return a verdict of guilty? 

MS. CHRISTIANSEN: That, yes. 

MR. MORRIS: Yeah, I can find a reason.

MR. FOYE: What's that?

MR. MORRIS: Yeah, I could. 

MR. FOYE: Good. Excellent. Okay. 

So based on that kind of clarification, 

Row 2, anyone who would still want me to prove it beyond 

all possible doubt? 

No. 12? 

MR. SAMANIEGO-KRANT: I believe that 

we've been talking about incarceration, taking years of 

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someone's life that I would have to be absolutely 

certain. The level of false convictions are incorrect, 

and with convictions these days I would feel horrible 

about sending someone to prison for something that was 

doubtful. 

MR. FOYE: Okay. Thank you. Anyone 

else? Row 2?

VENIRE PANEL: (No response)

MR. FOYE: Row 3, anyone? 

VENIRE PANEL: (No response)

MR. FOYE: Okay. Row 4 is Mr. Bidwell. 

You feel you would want to know all about it?

MR. BIDWELL: (Nods head)

MR. FOYE: Okay. Thank you.

Now, Row 5, anyone? Ms. Janssen?

MS. JANSSEN: Same thing.

MR. FOYE: Same thing as 12?

MS. JANSSEN: Yes. 

MR. FOYE: Okay. And Row 6, anyone back 

there?

VENIRE PANEL: (No response)

MR. FOYE: And Row 7? 

VENIRE PANEL: (No response)

MR. FOYE: Anyone on this side of the 

room? 

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officer comes in and says, no, this is what happened. 

And you just go with the officer because they're on the 

side of truth and the other person has to be lying, it's 

just not always like that. It's not black and white 

like that, but I think that's what we expect things to 

be. 

Yes, sir, Mr. -- 27? 

MR. COLE: 27, Cole. You know, since 

we're talking about that case right there, I feel like 

the prosecutor did provide the evidence because of a 

sworn police officer who is also sworn in court and he 

had the instrument to speak of. 

Also, to me, reasonable doubt, nobody is 

just -- I feel I've had those kind of tickets, too, but 

it's very easy to accidentally rest your foot on the 

accelerator and perhaps increase the speed of your car 

that is under cruise control. So there's reasonable 

doubt right there that they may have been going 93 and 

just didn't realize it. 

MR. HILDRETH: Okay. Well, see, 

here's -- you're going the opposite way. The Defense 

doesn't have to establish reasonable doubt about the 

State's case. We just have to attack it. 

What the law requires is the State prove 

their burden beyond a reasonable doubt. And what I mean 

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is there can be no other reasonable explanation. So now 

the definition of what is reasonable? I mean -- yes, 

sir, No. 12?

MR. SAMANIEGO-KRANT: It just kind of 

sounds to me like in talking about reasonable doubt, it 

almost sounds to me like you're trying to prove 

innocence instead of proving guilty. It just sounds 

backwards to me like you're trying to prove innocence 

-- you're guilty until proven innocent. It just sounds 

like that to me. 

MR. HILDRETH: Okay. Let me ask you 

this. When you all walked in, who looked at the tables 

and tried to figure out who the defendant was? 

VENIRE PANEL: (Indicating)

MR. HILDRETH: I know that's normal human 

behavior, sure. 

Okay, Mr. Custer, did you determine who 

the defendant was? 

MR. CUSTER: Yes, sir.

MR. HILDRETH: Okay. And did you wonder 

what he did?

MR. CUSTER: Yes, sir.

MR. HILDRETH: Who else wondered what he 

did? Raise your hands high. 

VENIRE PANEL: (Indicating)

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not --

THE COURT: Did he come up here to talk 

to about something? 

MR. LEVINGSTON: He was in hospice care 

for his dog.

THE COURT: The first time he said it, I 

thought it was his -- 

MS. CHEN-KERCHER: A person.

THE COURT: -- 16-year-old, I figured 

must have been a brother or sister.

MR. HILDRETH: Yeah. I think that's what 

he wanted when he --

MR. FOYE: He did. He said a close 

family member. A 16-year-old -- 

THE COURT: It's his dog. 

MR. FOYE: I mean, it's impressive the 

dog is 16 years old, but I didn't --

(Discussion off record)

THE COURT: Okay. Mr. Samaniego-Krant, 

can you come up to the bench close enough for us to talk 

to you? Can you -- can one of you-all illuminate the 

area you want to talk about?

(Venire Member No. 12, Mr. 

Samaniego-Krant, approached bench)

MR. LEVINGSTON: Yeah, Judge, if I may?

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Mr. Samaniego, I know when Mr. Foye was 

questioning you about the burden of proof and reasonable 

doubt and beyond a reasonable doubt, you had made the 

comment that you would need to be 100 percent certain.

MR. SAMANIEGO-KRANT: Yeah.

MR. LEVINGSTON: And you understand that 

the law is beyond a reasonable doubt. There is actually 

-- while there is no definition for beyond a reasonable 

doubt, there is case law that says it's not 100 percent 

certainty. Would you be able to follow the law and

listen to a case and determine guilt or innocence based 

on beyond a reasonable doubt, or would you need 100

percent certainty? 

MR. SAMANIEGO-KRANT: In my personal 

beliefs, spirituality and opinion I just feel that I'm 

taking into consideration someone else's livelihood, I 

would need to be pretty darn certain.

THE COURT: Okay. And when you say that, 

would you need to be 100 percent certain?

MR. SAMANIEGO-KRANT: Yes.

MR. LEVINGSTON: Okay. No questions, 

Judge. 

THE COURT: Did you have any backup 

questions?

MR. HILDRETH: When you say "100 percent 

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certain," are you attributing that to beyond a 

reasonable doubt level or -- I'm not sure what -- 

because you say you have to be pretty confident. 

MR. SAMANIEGO-KRANT: If I'm going to 

commit (sic) somebody to a crime, then I would want to 

be 100 percent certain that that crime was committed 

beyond a reasonable doubt. 

MR. HILDRETH: Okay. And is that what 

you require -- are you -- there is not percentage to 

beyond a reasonable doubt. Now, for some people it

might be 100 percent. 

MR. SAMANIEGO-KRANT: Right. 

MR. HILDRETH: The point is, are you 

going to hold the State to its burden, or are you going 

to require the State to a higher burden than what 

they're required?

MR. SAMANIEGO-KRANT: I would hold 

someone innocent until proven guilty, not the other way 

around, which to me is how it sounds with our 

discussion. It sounds like people are trying to prove 

innocence instead of guilt. 

MR. HILDRETH: Okay. 

MR. SAMANIEGO-KRANT: So I'm -- yes. I 

mean --

MR. HILDRETH: Are you going to require 

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the State -- to hold the State to a higher burden of 

proof than beyond a reasonable doubt?

MR. SAMANIEGO-KRANT: No.

MR. HILDRETH: Okay. I have no further 

questions. 

THE COURT: All right. You can step back 

outside. Thanks. 

(Venire Member No. 12, Mr. 

Samaniego-Krant, approached bench) exited courtroom)

THE COURT: Okay. Now, what about 

Custer, No. 13? We're going to get back to him. No 

motions on Custer? 

MR. HILDRETH: Nothing on 13. 

THE COURT: Edwards? 

MR. HILDRETH: No, sir. 

THE COURT: Okay. Did you-all want to 

talk -- does the State still have a motion to strike?

MR. LEVINGSTON: I do, Judge. 

THE COURT: What does was the Defense say 

on Samaniego?

MR. HILDRETH: We're going to object to 

that. He said he would would hold the State to its

burden and not more. 

THE COURT: Okay. But he said 100 

percent three times, so I'll grant the State's motion to 

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strike for cause. I think he won't follow the law that 

they're entitled to follow. 

(Venire Member No. 12, Mr. 

Samaniego-Krant, struck for cause) 

THE COURT: So 13 and 14 are good. Kelly 

Hayden, any motions? 

(No response)

THE COURT: Scott Broaddus, any motions? 

MR. HILDRETH: Yes, Your Honor. He said 

he would have a bias against the State -- I mean, excuse 

me against the defendant and has a bias for law 

enforcement. 

MR. LEVINGSTON: I agree, Judge. 

THE COURT: You agree to strike him for 

cause?

MR. LEVINGSTON: I do. 

THE COURT: Swan, No. 17? 18, Flores? 

19, Buckner? 20 is excused. JoAnn Parks, 21? Darin 

Upchurch, 22? Patricia Rowell, 23? Betty Dickson, 24 

(sic)?

MR. FOYE: We had talked to 24. She 

was excused. I believe Betty Dickson --

THE COURT: Yeah. I meant 25, Betty 

Dickson. 

MR. HILDRETH: No, sir. Nothing from the 

R A Q U E L K O C H E R , C S R

3 3 1 S T J U D I C I A L D I S T R I C T C O U R T

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Appendix B

Opinion: Devoe v. State, 354 S.W.3d 457
Positive Last updated October 01, 2015 04:42:24 pm GMT

Positive When saved to folder October 01, 2015 04:42:24 pm GMT

Devoe v. State

Court of Criminal Appeals of Texas

December 14, 2011, Delivered

NO. AP-76,289

Reporter

354 S.W.3d 457; 2011 Tex. Crim. App. LEXIS 1669

PAUL DEVOE, Appellant v. THE STATE OF TEXAS

Notice: PUBLISH

Subsequent History: Writ of habeas corpus denied Ex

parte Devoe, 2014 Tex. Crim. App. Unpub. LEXIS 38 (Tex.

Crim. App., Jan. 15, 2014)

Prior History: [**1] ON DIRECT APPEAL FROM CAUSE

NO. 07-302093 IN THE 403RD DISTRICT COURT,

TRAVIS COUNTY. TRIAL COURT JUDGE: BRENDA P.

KENNEDY.

Case Summary

Procedural Posture

Defendant appealed a judgment of the 403rd District Court,

Travis County (Texas), convicting him of capital murder,

specifically the intentional murder of two individuals during

the same criminal transaction under Tex. Penal Code §

19.03(a)(7)(A), and sentencing him to death under Tex.

Code Crim. Proc. Ann. art. 37.071, § 2(g).

Overview

On appeal, the court held that the evidence was sufficient to

show that there was a probability that defendant would

criminal acts of violence that would constitute a continuing

threat to society under Tex. Code Crim. Proc. Ann. art.

37.071, § 2(b)(1) because it showed that: (1) during his

crime spree, defendant attempted to kill one victim, and did

kill three others; (2) he had a lengthy criminal history; (3) he

had a lengthy history of abusing women; (4) he once

attempted to strangle his mother; (5) he abused alcohol and

drugs and tended to become more violent when he did so;

and (6) inmates in Texas had access to drugs, alcohol, and

weapons, and many violent crimes occurred inside Texas

prisons. The trial court did not abuse its discretion by

admitting extraneous evidence under Tex. R. Evid. 404(b) of

defendant’s theft of his friend’s gun, the aggravated assault

of one victim, the killing of the victim from whom he stole

the vehicle, and the robbery of yet another victim, because

the State needed the evidence to give context to defendant’s

crime spree. Defendant did not rest between incidents and

he stole the gun to go after women and to then effectuate his

flight.

Outcome

Defendant’s conviction and sentence were affirmed.

LexisNexis® Headnotes

Criminal Law & Procedure > ... > Appeals > Standards of

Review > General Overview

Criminal Law & Procedure > ... > Standards of Review >

Substantial Evidence > Sufficiency of Evidence

HN1 In reviewing the sufficiency of the evidence at the

punishment phase, an appellate court views the evidence in

the light most favorable to the verdict and determine

whether any rational trier of fact could make the finding

beyond a reasonable doubt.

Criminal Law & Procedure > Sentencing > Capital

Punishment > Aggravating Circumstances

HN2 Some factors a jury may consider when determining

whether a defendant will pose a continuing threat to society

include the following: (1) the circumstances of the capital

offense, including the defendant’s state of mind and whether

he or she was working alone or with other parties; (2) the

calculated nature of the defendant’s acts; (3) the forethought

and deliberateness exhibited by the crime’s execution; (4)

the existence of a prior criminal record, and the severity of

the prior crimes; (5) the defendant’s age and personal

circumstances at the time of the commission of the offense;

(6) whether the defendant was acting under duress or the

domination of another at the time of the commission of the

offense; (7) psychiatric evidence; and (8) character evidence.

This list is not exclusive.
Criminal Law & Procedure > Sentencing > Capital

Punishment > Aggravating Circumstances

HN3 In determining the special issues, the jury is entitled to

consider all of the evidence at both the guilt and punishment

stages of trial. Tex. Code Crim. Proc. art. 37.071, § 2(d)(1).

The circumstances of the offense and the events surrounding

it may be sufficient in some instances to sustain a ′′yes′′

answer to the future dangerousness special issue.

Criminal Law & Procedure > ... > Appeals > Standards of

Review > General Overview

Criminal Law & Procedure > Sentencing > Capital

Punishment > Aggravating Circumstances

Criminal Law & Procedure > Sentencing > Capital

Punishment > Mitigating Circumstances

HN4 While good behavior in prison is a factor to consider,

it does not preclude a finding of future dangerousness. The

Court of Criminal Appeals of Texas can review the objective

evidence of future dangerousness, but it does not engage in

reviewing the jury’s normative decision on mitigation.

Evidence > Admissibility > Conduct Evidence > Prior Acts,

Crimes & Wrongs

HN5 Evidence of extraneous offenses is not admissible at

the guilt phase of a trial to prove that a defendant committed

the charged offense in conformity with a bad character. Tex.

R. Evid. 404(b). However, extraneous offense evidence may

be admissible when it has relevance apart from character

conformity. For example, it may be admissible to show

proof of motive, opportunity, intent, preparation, plan,

knowledge, identity, or absence of mistake or accident.

Evidence of another crime, wrong, or act also may be

admissible as same-transaction contextual evidence where

′′several crimes are intermixed, or blended with one another,

or connected so that they form an indivisible criminal

transaction, and full proof by testimony, of any one of them

cannot be given without showing the others. The jury is

entitled to know all relevant surrounding facts and

circumstances of the charged offense. But, under Rule

404(b), same-transaction contextual evidence is admissible

only when the offense would make little or no sense without

also bringing in that evidence, and it is admissible only to

the extent that it is necessary to the jury’s understanding of

the offense.

Criminal Law & Procedure > ... > Standards of Review > Abuse

of Discretion > Evidence

Evidence > Admissibility > Conduct Evidence > Prior Acts,

Crimes & Wrongs

HN6 Whether extraneous offense evidence has relevance

apart from character conformity, as required by Tex. R. Evid.

404(b), is a question for the trial court. Thus, a trial court’s

ruling on the admissibility of extraneous offenses is reviewed

under an abuse-of-discretion standard. As long as the trial

court’s ruling is within the ′′zone of reasonable

disagreement,′′ there is no abuse of discretion, and the trial

court’s ruling will be upheld. A trial court’s Rule 404(b)

ruling admitting evidence is generally within this zone if

there is evidence supporting that an extraneous transaction

is relevant to a material, non-propensity issue. If the trial

court’s evidentiary ruling is correct on any theory of law

applicable to that ruling, it will not be disturbed, even if the

trial judge gave the wrong reason for his correct ruling.

Criminal Law & Procedure > ... > Resisting Arrest > Fleeing &

Eluding > Consciousness of Guilt

Evidence > Admissibility > Conduct Evidence > Prior Acts,

Crimes & Wrongs

HN7 Flight is admissible as a circumstance from which an

inference of guilt may be drawn. And if the extraneous

offense is shown to be a necessarily related circumstance of

the defendant’s flight, it may be admitted to the jury.

Criminal Law & Procedure > Trials > General Overview

Evidence > Types of Evidence > Circumstantial Evidence

HN8 When the identity of the perpetrator can be established

by circumstantial evidence only, identity is a contested issue

even if the defense rests with the State, puts on no evidence,

and raises no defensive theories.

Criminal Law & Procedure > Trials > Jury Instructions >

Limiting Instructions

Evidence > Admissibility > Conduct Evidence > Prior Acts,

Crimes & Wrongs

HN9 A limiting instruction is not required when evidence is

admitted as same-transaction contextual evidence.

Criminal Law & Procedure > ... > Challenges for Cause > Bias

& Impartiality > General Overview

Criminal Law & Procedure > Juries & Jurors > Peremptory

Challenges > Proving Discriminatory Use

HN10 In holding that Batson challenges do not apply to

peremptory strikes based upon religion, the Court of Criminal

Appeals of Texas stated that, by definition, a religious belief

(unlike race or gender) is a subscription to a set of beliefs

and convictions. Strikes based on personal belief have long

been recognized as appropriate and are, in fact, the

Page 2 of 14

354 S.W.3d 457, *457; 2011 Tex. Crim. App. LEXIS 1669, **1
foundation of the entire voir dire process. In discussing the

difference between striking jurors on the basis of race or

gender versus religion, the court stated that attributing to

women or African Americans as a group any specific moral,

political, or social belief is overly broad because membership

in the group does not depend upon subscription to the belief.

It is invidious because individual members who do not share

the belief are made to suffer the attribution anyway. But in

the case of religion, the attribution is not overly broad, and

therefore not invidious, when the belief is an article of faith.

Because all members of the group share the same faith by

definition, it is not unjust to attribute beliefs characteristic of

the faith to all of them.

Criminal Law & Procedure > Sentencing > Capital

Punishment > Mental Retardation

Criminal Law & Procedure > Sentencing > Cruel & Unusual

Punishment

HN11 There is no authority from the United States Supreme

Court or the Court of Criminal Appeals of Texas suggesting

that mental illness that is a ′′contributing factor′′ in the

defendant’s actions or that caused some impairment or some

diminished capacity, is enough to render one exempt from

execution under the Eighth Amendment.

Criminal Law & Procedure > ... > Challenges for Cause > Bias

& Impartiality > Actual & Implied Bias

HN12 See Tex. Code Crim. Proc. Ann. art. 35.16(a)(10).

Counsel: For APPELLANT: KARYL ANDERSON KRUG,

AUSTIN.

For STATE: MICHAEL SCOTT TALIAFERRO, ASST.

D.A., AUSTIN; LISA C. MCMINN, STATE’S ATTORNEY,

AUSTIN.

Judges: HERVEY, J., delivered the opinion of the Court in

which KELLER, P.J., and MEYERS, JOHNSON,

KEASLER, COCHRAN and ALCALA, JJ., joined. PRICE

and WOMACK, JJ., concurred.

Opinion by: HERVEY

Opinion

[*461] Appellant, Paul Devoe, was convicted in October

2009 of capital murder, specifically the intentional murder

of two individuals (Haylie Faulkner and Danielle Hensley)

during the same criminal transaction. See TEX. PENAL CODE §

19.03(a)(7)(A). Based upon the jury’s answers to the special

issues set forth in Texas Code of Criminal Procedure Article

37.071, Sections 2(b) and 2(e), the trial judge sentenced

Appellant to death. TEX. CODE CRIM. PROC. art. 37.071, §

2(g).

1 Direct appeal to this Court is automatic. Art. 37.071,

§ 2(h). Appellant raises nine points of error. After reviewing

Appellant’s points of error, we find them to be without

merit. Consequently, we affirm the trial court’s judgment

and sentence of death.

Appellant challenges the sufficiency of the evidence at the

punishment phase of trial. We shall address this issue first.

The remaining points of error will be addressed in the order

presented in the briefs.

In point of error eight, Appellant contends that the evidence

is insufficient to prove beyond a reasonable doubt that there

is a probability that he will commit criminal acts of violence

that would constitute a continuing threat to society. See art.

37.071, § 2(b)(1). Specifically, he argues that his behavioral

record in prison is ′′almost pristine,′′ and therefore, the

State’s evidence of problems within the Texas Department

of Criminal Justice (TDCJ) should not be weighed against

him.

HN1 In reviewing the sufficiency of the evidence at the

punishment phase, we view the evidence in the light most

favorable to the verdict and determine whether any rational

trier of fact could make the finding beyond a reasonable

doubt. Banda v. State, 890 S.W.2d 42, 50 (Tex. Crim. App.

1994); see also Young v. State, 283 S.W.3d 854, 863 (Tex.

Crim. App. 2009). HN2 Some factors a jury may consider

when determining whether a defendant will [**3] pose a

continuing threat to society include the following:

1. the circumstances of the capital offense, including

the defendant’s state of mind and whether he or she was

working alone or with other parties;

2. the calculated nature of the defendant’s acts;

3. the forethought and deliberateness exhibited by the

crime’s execution;

[*462] 4. the existence of a prior criminal record, and

the severity of the prior crimes;

5. the defendant’s age and personal circumstances at

the time of the commission of the offense;

6. whether the defendant was acting under duress or the

domination of another at the time of the commission of

the offense;

1 Unless otherwise indicated, all future [**2] references to Articles refer to the Texas Code of Criminal Procedure.

Page 3 of 14

354 S.W.3d 457, *457; 2011 Tex. Crim. App. LEXIS 1669, **1
7. psychiatric evidence; and

8. character evidence.

Keeton v. State, 724 S.W.2d 58, 61 (Tex. Crim. App. 1987);

see also Coble v. State, 330 S.W.3d 253, 287-89 (Tex. Crim.

App. 2010). This list is not exclusive.

HN3 In determining the special issues, the jury is entitled to

consider all of the evidence at both the guilt and punishment

stages of trial. Art. 37.071, § 2(d)(1); see also Young, 283

S.W.3d at 863. The circumstances of the offense and the

events surrounding it may be sufficient in some instances to

sustain a ′′yes′′ answer to the future dangerousness special

issue. Banda, 890 S.W.2d at 51; [**4] see also Hayes v.

State, 85 S.W.3d 809, 814 (Tex. Crim. App. 2002).

The evidence presented at guilt revealed that, in late August

2007, Appellant stole a silver Jennings .380-caliber handgun

(′′the gun′′), two ammunition magazines, and fifteen

Winchester bullets from his friend, Bill Brinlee. Brinlee

considered Appellant to be ′′family,′′ as Appellant had

previously lived with the Brinlees. Appellant had access to

the house, knew that the Brinlees would be out of town for

a wedding during the weekend of August 24, and was aware

that the gun was kept in the master bedroom.

On August 24, 2007, Appellant was residing at the Llano

home of Sharon Wilson in exchange for work he had agreed

to do around her home. At about 3:00 p.m., Wilson came

home to find Appellant outside with the gun. Wilson had

previously informed Appellant that she did not allow

firearms in her home, and she asked that he not bring it in

the house. She assumed that Appellant complied with her

request.

A short while later, Wilson found Appellant looking in her

purse. He claimed to be looking for a cigarette. Appellant

then went to take a nap. At this point, Wilson decided that

it was time to ask Appellant to vacate her home. [**5] She

called some friends to be with her when she told him

because she was afraid of how Appellant might react to the

request. While waiting for her friends, she discovered that

Appellant had emptied the gas can that she had filled for her

lawn mower. Angered, Wilson felt she could wait no longer,

so she went to confront Appellant.

Upon finding Appellant asleep in her bedroom, Wilson

woke him and told him that he needed to leave. Appellant

got up and went directly to the living room couch where he

retrieved the gun from a hiding place behind the cushions,

and he pointed it at Wilson’s head and mid-section. Wilson

knocked Appellant’s arm so that the gun pointed away from

her. Appellant then fired the gun multiple times into the

couch and walls. Appellant spoke of killing himself. He told

Wilson that he had only two bullets left and that he was

going to his trailer, which was parked nearby, to get more.

Appellant advised Wilson not to go near her pickup truck,

but he told her she could go outside to smoke a cigarette.

When Appellant walked out the door, Wilson grabbed her

dog and ran from her home. She hid in heavy vegetation and

cactus in the adjoining field. She heard Appellant start

[**6] a truck, and he drove it towards Wilson. He stopped

and revved the engine several times before backing up.

Wilson saw Appellant drive away in her blue Dodge Dakota

pickup truck. The license plate number was 21X-ZJ5.

Wilson [*463] later found that her money and credit cards

were missing from her purse. Investigators recovered

.380-caliber bullets and shell casings from her home, and

Wilson turned over Appellant’s day planner, which contained

a photocopy of Paula Griffith’s driver’s license.

Later that evening, Glenda Purcell was at her usual hangout,

O’Neill’s Sports Tavern in Marble Falls. Purcell had recently

broken up with Appellant after a tumultuous six-month

romantic relationship that ended when she asked him to

move out of her home. Following the break-up, Purcell

obtained a protective order against Appellant, of which

Appellant had notice. Michael Allred was on duty as a

bartender that night.

At approximately 8:30 p.m., Appellant entered O’Neill’s

Sports Tavern. He was dressed in what Purcell described as

his ′′motorcycle attire′′: a black leather vest, chaps, a cap,

and a jacket. Purcell immediately called out for someone to

call the police because she had a protective order against

Appellant. [**7] Appellant then walked over to Purcell, put

his hand over her eyes, and held the gun to her head. He

pulled the trigger several times, but the gun jammed. Purcell

then ran back towards the men’s room where Allred was

repairing something. She yelled, ′′Mike, Mike, [Appellant’s]

here, he’s got a gun.′′ Allred stepped between Purcell and

Appellant. Allred tried to persuade Appellant to calm down

and to give him the gun, but Appellant then shot Allred in

the chest with a .380-caliber bullet, severing his aorta and

killing him. Purcell ran out of the back door to the police

station next door. Witnesses saw Appellant flee the bar in a

blue Dodge Dakota pickup truck with the license plate

21X-ZJ5. Appellant was headed in the direction of

Jonestown.

Paula Griffith lived in a house in Jonestown with her

fifteen-year-old daughter, Haylie Faulkner. Griffith

previously dated Appellant, but they had not had a romantic

relationship in some time. By all accounts, the break-up

Page 4 of 14

354 S.W.3d 457, *462; 2011 Tex. Crim. App. LEXIS 1669, **3
seemed amicable, and Appellant kept in touch with Faulkner,

even paying her entry fee into some beauty pageants.

On the evening of August 24, Griffith, Faulkner, Faulkner’s

friend (Danielle Hensley), and Griffith’s boyfriend (Jay

[**8] Feltner) were at Griffith’s home preparing for a trip to

Fiesta Texas, an amusement park in San Antonio. Griffith

had obtained tickets to celebrate the last weekend before the

start of school. The group planned to travel to San Antonio

on Friday night, spend the day at Fiesta Texas on Saturday,

and return to Jonestown late Saturday night. Hensley was to

return to her family’s home in Leander on Sunday.

On that Friday evening, August 24, Hensley’s mother and

step-father began to worry when they did not receive a

phone call from her because Hensley normally called to say

good night. On Saturday, her parents were still unable to

reach Hensley, Griffith, or Faulkner. They called the

Jonestown police, but the police were unable to assist

because the parents did not know the physical address of

Griffith’s house. When searching the internet for news of

any auto accidents or other events that might explain

Hensley’s failure to make contact, Hensley’s step-father

learned about the murder in Marble Falls and that the police

were looking for a blue Dodge Dakota pickup truck with the

license plate number 21X-ZJ5.

On Sunday morning, August 26, Hensley’s parents drove to

Griffith’s home in Jonestown. [**9] As they approached the

driveway, Hensley’s step-father saw a blue Dodge Dakota

pickup truck parked near the house. He recognized the

license plate number from his internet search the day before,

and he knew that something was [*464] wrong. He parked

a block away and called the police.

After securing the area, the police entered Griffith’s home to

check on the welfare of the people possibly inside and

discovered the four bodies. Feltner had been shot in the head

from close range while sitting at the kitchen table. Griffith

had been shot in the back of her head, apparently while she

was running from the living room. Faulkner had fallen to the

living room floor with a gunshot wound to the head.

Hensley, who was lying on the living room couch, had four

gunshot wounds including a fatal wound to the head. The

group had apparently been preparing dinner as raw meat sat

out on the counter and the barbecue grill outside was open.

It appeared to the investigators that each of the females’

purses had been searched and the contents dumped onto a

couch. Feltner’s duffle bag had also been searched, and his

cell phone was discovered to be missing. A carton of

Skydancer cigarettes was on the same couch, and [**10] a

cigarette butt was found on the floor. No identifiable

fingerprints were found at the scene.

Police confirmed that the blue Dodge Dakota pickup truck

parked at Griffith’s home was the same one that had been

used to flee the murder in Marble Falls. Investigators

collected three Natural Light beer cans, one empty Sport

cigarette package, cigarette butts from the ashtray, and a set

of General Motor keys from the pickup. They also discovered

that Griffith’s white 2001 Saturn station wagon was missing.

Meanwhile, beginning Friday night, August 24, Appellant

began calling his friend, Brinlee. During his first phone call,

Appellant told Brinlee that he had ′′shot at′′ six people and

′′maybe killed two′′ people. He stated that he ′′was on the

run.′′ During the second call, Brinlee noticed that Appellant

was not calling from his cell phone; he was now calling

from a new number. It was later determined that Appellant

was using Feltner’s cell phone. This second call was placed

at 11:44 p.m. in the vicinity of a cell tower in Belton, Texas.

During his second or third phone call to Brinlee, Appellant

said that ′′he was going after [Purcell] and her father and

mother.′′ He told Brinlee that he had gone to [**11] the bar

to kill Purcell, but the bartender got in the way. Appellant

said that he took a couple of shots at Purcell, but the gun

jammed and that was why Purcell was not dead.

Records for Wilson’s credit card showed that someone

attempted to use it at a Round Rock gas station on August

24. Call records for Feltner’s phone showed points along the

route that Appellant took as he fled Texas. In addition to the

call from the Belton area, Appellant used the phone while he

was near the following locations: Mount Sylvan, Texas

(Saturday, August 25 at 3:17 a.m.); Okalona, Arkansas

(Saturday, August 25 at 9:12 a.m.); Bakerville, Tennessee

(Saturday, August 25 at 3:30 p.m.); Shippensburg,

Pennsylvania (Sunday, August 26 at 2:40 p.m.); and

Siperstein Plaza, New Jersey (Sunday, August 26 at 6:46

p.m.). Appellant was traveling to his mother’s home in

Shirley, New York.

On Sunday, August 26, while Appellant was driving through

Pennsylvania, Griffith’s Saturn station wagon began stalling

and ′′riding rough.′′ Appellant decided that he needed a

different car, so he left Interstate 81 in the town of

Greencastle. Appellant spotted a ′′nice car′′ in a driveway.

Armed with the gun, he entered the home of Betty

[**12] DeHart and found the keys to her blue 2006 Hyundai

Elantra. He [*465] transferred his items from Griffith’s car

into the Hyundai, including a Walmart bag containing

ammunition, Skydancer cigarettes, sunglasses, and a road

Page 5 of 14

354 S.W.3d 457, *463; 2011 Tex. Crim. App. LEXIS 1669, **7
map. Appellant then continued driving to New York. An

expended .380-caliber bullet and shell casing were recovered

from DeHart’s home. In Griffith’s Saturn station wagon,

investigators found an identification badge for Griffith, a

certificate of Faulkner’s participation in a beauty pageant, a

paper towel holder, a peanut can, and Powerade, Dr. Pepper,

and Coca-Cola bottles.

Around noon on Monday, August 27, Appellant was located

at the home of his friend and former employer, Gerald

Baldoni, in the Long Island town of Shirley, New York.

Baldoni invited the initial officer into his home and told him

that Paul was there. The officer called for back-up, and

when the officers subsequently entered the home, Appellant

came out into the hallway from a bedroom with the gun

pointed to his head. Appellant asked the officers to call his

mother. He also stated that he did not want to go to jail for

what he did because he knew that he was going to spend a

long time there. After a short [**13] stand-off, Appellant

threw down his weapon and surrendered.

Investigators recovered the gun, which had a bullet in the

chamber and a loaded magazine. They also recovered

Appellant’s black cowboy boots, leather vest, cap, and other

clothing, and inside the vest’s pocket, they discovered

Wilson’s credit card, a loaded magazine, loose shells, a Bic

lighter, a pocket knife, a business card, and a piece of paper

with a cell phone number written on it. DeHart’s Hyundai

was found parked at Baldoni’s home; the keys were found

in the house. Inside the Hyundai, they recovered Feltner’s

cell phone and the Walmart bag, which contained a box of

100 Winchester .380-caliber bullets, an open carton of

Skydancer cigarettes, a pair of sunglasses, a road atlas with

the area around DeHart’s home circled in ink.

Pending his extradition to Texas, Appellant was held in

custody by the Suffolk County, New York Police Department.

Appellant made the following unsolicited statements in the

presence of an officer: ′′They’re going to extradite me back

to Texas, then probably Tennessee, West Virginia,

Pennsylvania, then probably back here. I bet they found me

when I turned my damn cell phone on. I had that bitch

turned [**14] off the whole time and they didn’t have a clue

where I was′′; ′′I had a good fucking thing going on in

Texas, too. Business, house, vehicles. If it wasn’t for my

stupid fucking girlfriend. One mistake ruined my whole

fucking life′′; ′′Do you know how many bodies they found?

Five, six in Texas. Maybe 12 bodies.′′ Appellant also spoke

with a detective of the Suffolk County Police Department.

He described many of the events surrounding the instant

offenses, but he did not speak specifically about the acts of

shooting or killing.

After his return to Texas, Appellant told a cellmate in the

Travis County Jail, ′′I’ll be here for a long time . . . I killed

six people.′′ Also while in jail, during a recorded conversation

with an acquaintance, Tiffany Waldrop, Appellant told

Waldrop that he thought that he would be in jail for ′′[l]ife.

I’m getting the death penalty.′′ When Waldrop asked

Appellant if he had spoken with Brinlee, Appellant

responded, ′′I’ve talked to [Brinlee], oh, they don’t want

him basically him [sic] talking to me right now . . . .

Because it was [Brinlee]’s gun that I used.′′ Appellant also

told Waldrop, ′′I just wish I had never had that gun.′′

DNA analysis identified Feltner’s and Allred’s [**15] blood

on Appellant’s boots. Appellant’s DNA was on a cigarette

butt [*466] found at the Jonestown crime scene and on Dr.

Pepper and Coca-Cola bottles left in Griffith’s Saturn

station wagon. A DNA profile consistent with a mixture of

Appellant’s and Faulkner’s DNA was found on a Gatorade

bottle also left in the station wagon. Ballistics analysis

determined that the bullets recovered from the Llano,

Marble Falls, Jonestown, and Pennsylvania crime scenes

were all fired from Brinlee’s .380-caliber pistol.

The evidence presented at punishment revealed that

Appellant shot and killed 81-year-old Betty DeHart when he

stole her blue Hyundai in Greencastle, Pennsylvania. DeHart

was found lying on her bed with a close-range gunshot

wound to the head. Appellant claimed to have chased her

into her home and that he shot her because ′′she wouldn’t

stop screaming.′′

Appellant possessed a lengthy criminal history. He was

incarcerated in Burnet County, Texas, for various

misdemeanors. Before that, he was jailed in Suffolk County,

New York, over twenty times between 1980 and 2004,

including an incarceration in the Gowanda state prison from

1997 to 2002. Appellant’s convictions in Suffolk County,

New York, included [**16] aggravated unlicensed operation

of a motor vehicle, aggravated harassment, criminal trespass,

disorderly conduct, endangering the welfare of a child, two

convictions for harassment, three for assault, and four for

felony driving while intoxicated. Appellant’s 1989 assault

conviction was for shooting another young man with a

12-gauge shotgun following an altercation that Appellant

incited; that man testified about that incident and his

resulting wounds.

Appellant also had a lengthy history of abusing women.

Appellant told a former neighbor that he ′′liked to slap the

girls around.′′ Purcell, the woman Appellant attempted to

kill in Marble Falls, testified about earlier abuse by

Appellant. On one occasion, he punched her in the face and

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broke her nose. On another occasion occurring June 15,

2007, while driving, she and Appellant were run off the

road. Appellant chased down the offending truck, forced it

to stop, and pulled the driver—a young woman—out of the

truck. He threatened to beat up the young woman, but

Purcell persuaded him not to do so. Later that same night,

Purcell complained that Appellant had been living in her

home for four months without paying any bills or helping

out. Appellant [**17] became angry, and he cut Purcell’s

clothes off with a knife, punched her several times, and held

a knife to her throat. He also hit Purcell with the finial from

a bed post, breaking two of her ribs, and he threatened to

shoot her. Purcell subsequently kicked Appellant out of her

home and obtained a protective order.

Jody Pagel, a woman whom Appellant had dated in the early

1980s while living in New York, testified regarding three

incidents involving Appellant. During the first incident,

Appellant drank too much and attempted to choke her to

death. Pagel testified that the second incident occurred in

the house, but she could not recall the facts clearly. During

the third incident, they were at a bar when Appellant choked

Pagel so hard that he lifted her up off the floor; he then

threw her to the ground. Following the assault, Appellant sat

at the bar with another woman as if nothing had happened.

After Pagel broke up with Appellant, Appellant made

harassing phone calls in which he threatened to kill Pagel

and her new boyfriend. Pagel reported the calls, and she

obtained a protective order.

On December 20, 2006, Appellant went to the emergency

room at South Austin Medical Center. When [**18] a

female physician told him that it would not be a good idea

for him to leave the hospital, Appellant [*467] spoke

aggressively and abusively to someone on the phone and

then threatened to physically harm the female doctor.

Mary McNellage testified that Appellant lived in her

Spicewood, Texas, home for 89 days. She wanted him to

leave due to his lies, drinking, and uncontrolled behavior.

McNellage did not want to ask Appellant directly to leave

because Appellant had previously physically threatened her.

Consequently, she left him a car and a suitcase along with a

note that asked him to leave her things alone and ′′just go.′′

She had also washed and folded his clothes and had packed

them and his other belongings in the suitcase and car.

McNellage then stayed at a friend’s house for 13 days

because she was afraid of Appellant’s reaction to the note.

Appellant refused to leave, but eventually he was forced to

go. After McNellage finally returned home, Appellant

showed up around 3:00 a.m. saying that he wanted to have

sex with her. When she rebuffed his advances, Appellant

held a hunting knife to her throat. She managed to fight

Appellant off and call 9-1-1. Charges were filed against

Appellant, [**19] and the case was pending at the time of

the capital murders.

Appellant’s family confirmed that, when Appellant was in

his twenties, he once attempted to strangle his mother with

a telephone cord. Following that incident, Appellant’s

mother obtained a protective order against him.

The jury also received ample evidence from numerous

witnesses that Appellant abused alcohol and drugs and that

he tended to become more violent when he did so.

Appellant’s mother testified, via deposition, that Appellant

became ′′very violent′′ when he was drinking—he ′′would

take things apart, tear up the house, and break down doors.

He would act like that no matter whose house he was at.′′

Appellant’s substance abuse was also the subject of expert

testimony. Defense psychiatrist Dr. Robert Cantu interviewed

Appellant. His understanding from Appellant was that

Appellant had smoked a half to one ounce of

methamphetamine in the 12 hours preceding the instant

offense, in addition to drinking what Appellant reported as

a liter of rum that day. Cantu testified that Appellant would

be a danger to others in prison if he had access to large

quantities of drugs or alcohol, if he had the opportunity to

harm weaker people [**20] there, and if he were in an

unstructured environment that allowed him to go places

without direct supervision. Cantu stated, ′′I think if those

three things . . . were present, that he would be a future

danger, yes, sir.′′ Cantu also believed that Appellant did

′′know what he was doing′′ during the time of the instant

offense.

A.P. Merillat, a senior criminal investigator for the Texas

Special Prosecution Unit, testified that inmates in Texas

prisons have access to drugs, alcohol, and weapons. He

further testified that many violent crimes occur inside Texas

prisons.

Dr. Richard Coons, a psychiatrist, testified for the State

without objection. After interviewing Appellant and

reviewing his records, Coons agreed with Cantu’s assessment

that Appellant would be a continuing threat to society. In

Coons’s opinion, Appellant was ′′drug dependent and . . . I

think if he were given the opportunity, [Appellant] would

certainly try to get them, try to use them′′ in prison. During

Coons’s interview with him, Appellant described the instant

offenses in detail. Appellant told him that he was angry

when he shot the gun in Wilson’s home, but he said that the

shooting of Allred ′′was an accidental shooting.′′ [**21] He

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claimed that he went to Griffith’s home to get money and

that he shot Feltner because Feltner came at him (despite the

physical evidence that [*468] Feltner was seated at the

kitchen table). He shot Griffith and the kids because they

were screaming. He also stated that he shot DeHart because

she was screaming.

Coons concluded that Appellant was not operating under

any type of psychosis during the instant offense. He found

that Appellant planned his behavior and was ′′actively

responsive to what he [felt] he need[ed] to do.′′ Coons

agreed with Appellant’s previous diagnoses of psychotic

disorder not-otherwise-specified, antisocial behavior, and

personality problems, and that Appellant is polysubstance

dependent.

In reaching a determination that Appellant would be a future

danger, Coons evaluated the following factors: (1)

Appellant’s long history of violence; (2) the awful set of

facts related to the instant offense; (3) Appellant’s attitude

toward violence, which is impulsive with a lack of empathy;

(4) Appellant’s antisocial personality behaviors; (5)

Appellant’s lack of any remorse; and (6) the prison society

that Appellant would be in.

The defense’s expert, psychologist Dr. Ollie Seay, evaluated

[**22] Appellant for mental retardation and concluded that

Appellant did not fit the criteria for that diagnosis. Seay did

testify, however, that he believed that Appellant may have

′′possible mental limitations.′′ Neuropsychologist Dr. Leslie

Rosenstein surmised that Appellant has deficits and

weaknesses in his neurocognitive functioning, but she

agreed that Appellant was not legally mentally retarded.

Appellant’s aunt, Laura Nelson, and sister, Elizabeth Petrie,

testified on his behalf. Nelson stated that she did not think

Appellant was treated well by his step-father and that he

seemed to be punished a lot. Her memories of Appellant are

of a caring, loving, and sharing person. However, Nelson

admitted that she had not seen Appellant in several years.

She knew that he had relationships with numerous women,

that he would live off of them, and that the relationships

ended because of fighting.

Petrie testified that Appellant was a typical brother, but he

did ′′smack′′ her and physically push her while they were

growing up. She noted that Appellant did not do well in

school and that he started drinking when he was fifteen. She

was aware that her brother could be ′′very violent′′ and that

his relationships [**23] with women frequently involved

violence. Appellant called Petrie while he was ′′on the run′′

in the instant offense, and he told her that he had shot people

and did not know if they were alive or dead. Petrie told

Appellant to turn himself in and not to hurt anyone else; he

responded, ′′I gotta do what I gotta do.′′ Appellant also

presented evidence that he did not have a record of

disciplinary problems during his many incarcerations.

On appeal, Appellant’s argument centers on the weight that

should be given to his ′′pristine′′ behavioral record while

incarcerated. However,HN4 while good behavior in prison

is a factor to consider, it does not preclude a finding of

future dangerousness. See Emery v. State, 881 S.W.2d 702,

707 (Tex. Crim. App. 1994). We have held that this Court

can review the objective evidence of future dangerousness,

but we do not engage in reviewing the jury’s normative

decision on mitigation. Young, 283 S.W.3d at 865; Colella v.

State, 915 S.W.2d 834, 845 (Tex. Crim. App. 1995).

Therefore, we conclude that there was sufficient evidence to

support the jury’s affirmative finding on the future

dangerousness issue, and we defer to the jury’s conclusion

that the mitigating evidence [**24] was not sufficient to

warrant a sentence of life imprisonment. Point of error eight

is overruled.

In point of error one, Appellant claims that the trial court

erred in allowing [*469] him ′′to be tried on copious

amounts of extraneous offense evidence′′ at guilt in violation

of Texas Rule of Evidence 404(b), thereby denying him a

fair trial. Specifically, he complains that the trial court

improperly permitted the State to present extraneous offense

evidence pertaining to the theft of Brinlee’s gun, the

aggravated assault of Wilson in Llano, the killing of Allred

in Marble Falls, and the robbery of DeHart in Pennsylvania.2

Appellant concedes that the murders of Griffith and Feltner

constitute same-transaction contextual evidence.

HN5 Evidence of extraneous offenses is not admissible at

the guilt phase of a trial to prove that a defendant committed

the charged offense in conformity with a bad character. Tex.

R. Evid. 404(b); see Nobles v. State, 843 S.W.2d 503, 514

(Tex. Crim. App. 1992). However, extraneous offense

evidence may be admissible when it has relevance apart

from character conformity. Moses v. State, 105 S.W.3d 622,

626 (Tex. Crim. App. 2003). [**25] For example, it may be

admissible to show proof of motive, opportunity, intent,

preparation, plan, knowledge, identity, or absence of mistake

or accident. Id. Evidence of another crime, wrong, or act

also may be admissible as same-transaction contextual

evidence where ′′several crimes are intermixed, or blended

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

Page 8 of 14

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with one another, or connected so that they form an

indivisible criminal transaction, and full proof by testimony,

. . ., of any one of them cannot be given without showing the

others.′′ Wyatt v. State, 23 S.W.3d 18, 25 (Tex. Crim. App.

2000) (quoting Rogers v. State, 853 S.W.2d 29, 33 (Tex.

Crim. App. 1993)). The jury is entitled to know all relevant

surrounding facts and circumstances of the charged offense.

Id. But, under Rule 404(b), same-transaction contextual

evidence is admissible only when the offense would make

little or no sense without also bringing in that evidence, and

it is admissible ′′only to the extent that it is necessary to the

jury’s understanding of the offense.′′ Id. (quoting Pondexter

v. State, 942 S.W.2d 577, 584 (Tex. Crim. App. 1996)).

HN6 ′′Whether extraneous offense evidence has relevance

apart from character conformity, as required by Rule 404(b),

is a question [**26] for the trial court.′′ Moses, 105 S.W.3d

at 627. Thus, a trial court’s ruling on the admissibility of

extraneous offenses is reviewed under an abuse-of-discretion

standard. Prible v. State, 175 S.W.3d 724, 731 (Tex. Crim.

App. 2005); see Santellan v. State, 939 S.W.2d 155, 169

(Tex. Crim. App. 1997). As long as the trial court’s ruling is

within the ′′zone of reasonable disagreement,′′ there is no

abuse of discretion, and the trial court’s ruling will be

upheld. Prible, 175 S.W.3d at 731; Santellan, 939 S.W.2d at

169. A trial court’s 404(b) ruling admitting evidence is

generally within this zone if there is evidence supporting

that an extraneous transaction is relevant to a material,

non-propensity issue. Powell v. State, 63 S.W.3d 435, 438

(Tex. Crim. App. 2001); see Santellan, 939 S.W.2d at 169. If

the trial court’s evidentiary ruling is correct on any theory of

law applicable to that ruling, it will not be disturbed, even if

the trial judge gave the wrong reason for his correct ruling.

Sewell v. State, 629 S.W.2d 42, 45 (Tex. Crim. App. 1982).

At a pre-trial hearing, the State presented evidence that the

charged offense and the extraneous offenses at issue were

all part of a single ′′crime [**27] spree.′′ The State argued

that each of the episodes in the [*470] instant case,

beginning with the burglary of a habitation and the theft of

Brinlee’s gun and ending with the robbery of DeHart,

constituted one continuous episode because these extraneous

offenses were necessary to properly explain what happened

in Jonestown and to clarify the nature of the crime alleged.

Although the State argued that it had no direct evidence that

Appellant committed the Jonestown murders, they presented

the evidence of each extraneous offense to prove the

charged crime and to illustrate the ′′crime spree′′

characterization of Appellant’s acts. Further, omitting the

extraneous offenses would make little or no sense and

would be impractical because they are needed to tie

Appellant to the crime. The trial court agreed, concluding

that ′′[t]he evidence is so intermingled between all of the

events that occurred it would just -- it would be impossible

to do so without leaving a hole, leaving a gaping hole in the

State’s case. So the Court does find that this is one

continuing course of conduct[.]′′ In a subsequent pre-trial

hearing, the trial court reaffirmed its ruling.

We conclude that the trial court did not err. [**28] It was

within the zone of reasonable disagreement to find the

various offenses to be contextual evidence. Appellant did

not rest between incidents, and the charged offense would

make little sense without the extraneous offenses. The

extraneous offense evidence presented showed that Appellant

went to homes and establishments where he knew certain

women would be found (with the exception of DeHart),

specifically women with whom he had a personal

relationship. Appellant deliberately stole a gun from the

home of his friend Brinlee. After threatening Wilson with

the gun and shooting it inside her home, Appellant stole

Wilson’s truck and one of her credit cards. He then drove

Wilson’s truck to O’Neill’s in Marble Falls. There, all of the

witnesses saw Appellant with the gun when he used it in an

attempt to kill Purcell and in the murder of bartender Allred.

All witnesses testified that no one else ever fired or

possessed the gun. Appellant was seen fleeing Marble Falls

alone in Wilson’s stolen blue truck, and that very truck was

present at the Jonestown crime scene. This, along with

ballistics evidence and DNA evidence, created more

circumstantial evidence to establish the identity of Appellant

[**29] as Faulkner’s and Hensley’s killer. The abandonment

of Wilson’s blue truck and the theft of Griffith’s white

Saturn were also part of this continuing episode.

Further, the theft of DeHart’s blue Hyundai occurred during

Appellant’s flight from the instant offense as he attempted

to travel to his mother’s home in Shirley, New York. HN7

′′[F]light is admissible as a circumstance from which an

inference of guilt may be drawn.′′ Alba v. State, 905 S.W.2d

581, 586 (Tex. Crim. App. 1995). And if ′′the extraneous

offense is shown to be a necessarily related circumstance of

the defendant’s flight, it may be admitted to the jury.′′ Id.;

see also Foster v. State, 779 S.W.2d 845, 859 (Tex. Crim.

App. 1989). Appellant was apprehended in Suffolk County,

New York with DeHart’s vehicle, the gun, Feltner’s cell

phone, and Wilson’s credit card. The trial court did not err

in holding that the instant offense was not fully

understandable without the contextual evidence of the

extraneous offenses.

We note that Appellant contends that, because ′′no one was

challenging the State’s version of events,′′ the introduction

of the extraneous crimes was unnecessary to prove identity

Page 9 of 14

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or any of the other Rule 404(b) exceptions. [**30] This

argument is without merit. Appellant did not plead guilty,

and he argued at closing against a finding of guilt. HN8

When the identity of the perpetrator can be established by

circumstantial [*471] evidence only, identity is a contested

issue even if the defense rests with the State, puts on no

evidence, and raises no defensive theories. See Jones v.

State, 568 S.W.2d 847, 858-60 (Tex. Crim. App. 1978). We

also note that this argument is without merit because, aside

from the identity issue, the State needed all of this evidence

to give context to Appellant’s ′′crime spree′′ as he stole the

gun to go after women with whom he had had personal

relationships and to then effectuate his flight to his mother’s

home. Point of error one is overruled.

In point of error two, Appellant argues that the trial court

erred in ′′failing to give an individual limiting instruction as

to each piece of extraneous offense evidence at the time it

was admitted, denying him a fair trial.′′ The record shows

that the trial court denied Appellant’s numerous requests for

individual Rule 404(b) limiting instructions. However, at the

end of trial, the trial court agreed to include a limiting

instruction in the court’s charge [**31] regarding the

extraneous offenses that were admitted.

This Court has held that HN9 a limiting instruction is not

required when evidence is admitted as same-transaction

contextual evidence. Castaldo v. State, 78 S.W.3d 345, 352

(Tex. Crim. App. 2002); Wesbrook v. State, 29 S.W.3d 103,

114-15 (Tex. Crim. App. 2000). Because we hold that the

trial court did not err in admitting the extraneous offense

evidence as same-transaction contextual evidence, no

instructions were required. Moreover, even though not

required, the trial court included in the jury charge a limiting

instruction on extraneous-offense evidence. Appellant’s

second point of error is overruled.

In his third point of error, Appellant contends that the trial

court ′′erred in failing to grant [him] a new trial, where

prosecutor Gary Cobb threw one or more boxes of live

rounds of ammunition into the jury box prior to the jury

retiring to consider punishment.′′ The record shows that

after the jury retired to begin its deliberations, the following

occurred:

MR. WEBER [Defense Counsel]: All right. We’re

going to object to Mr. Cobb’s conduct during early in

the presentation -- early in the closing. He picked up

live rounds, not shells, [**32] and poured -- from about

a foot high poured -- where is [Mr. Erickson, defense

counsel] -- I would say 50 rounds of ammunition on the

bench directly in front of the jurors.

And how many are in the jury box right now?

MR. ERICKSON: About 12.

MR. WEBER: There’s 12 rounds that actually went

into the jury box, live rounds.

How many are on the bench in front of them?

MR. ERICKSON: 15.

MR. WEBER: There’s 15 on the bench in front of

them.

He poured live rounds in front of the jury. He then

walked over and held the gun out to [Appellant] and

offered the gun to [Appellant]. He then brought records

that I introduced that were in the record and slammed

them down on the table directly in front of me.

All of these actions violated the specific rules the judge

told us and proper conduct. [The judge] gave us the

rules. We all acknowledged we heard it. Absolutely

improper. Absolutely outrageous conduct. Absolutely

uncalled for.

We have no problem with anything that was said

against us, but this conduct was just completely outside

the bounds of what is permitted in the law.

[*472] We ask, one, that Mr. Cobb be held in contempt

of court; and we ask, two, for a mistrial.

THE COURT: Counsel has requested that that be

placed [**33] on the record. And, State, if you wish to

reply as well on the record, you may do so.

MR. COBB: Only to dispute Mr. Weber’s accusation

that I offered the gun to [Appellant]. I did not offer the

gun to [Appellant]. I walked toward counsel[’s] table

with the gun. And I don’t believe that I slammed the

records down. I did put them on counsel[’s] table.

The trial court declined to hold the prosecutor in contempt

and denied Appellant’s motion for mistrial.

Appellant did not object to the prosecutor’s conduct or

request an instruction to disregard when the conduct

occurred, but instead moved for a mistrial after the jury had

already retired to begin its deliberations. In so doing,

Appellant failed to object at the earliest opportunity, and

thus, he has preserved nothing for our review. Tex. R. App.

33.1(a). Point of error three is overruled.

In point of error four, Appellant contends that the trial court

erred in failing to grant him a new trial where the State

singled out Catholics for exclusion from the jury panel in

Page 10 of 14

354 S.W.3d 457, *470; 2011 Tex. Crim. App. LEXIS 1669, **29
violation of Batson v. Kentucky, 476 U.S. 79, 106 S. Ct.

1712, 90 L. Ed. 2d 69 (1986).

3 He avers that this is a case

of first impression and asks this Court to reverse and

remand his case for a new trial. Appellant [**34] is

incorrect.

We addressed this same issue in Casarez v. State, 913

S.W.2d 468, 495 (Tex. Crim. App. 1994) (op. on reh’g).

HN10 In holding that Batson challenges do not apply to

peremptory strikes based upon religion, we stated that, by

definition, a religious belief (unlike race or gender) is a

subscription to a set of beliefs and convictions. Id. Strikes

based on personal belief have long been recognized as

appropriate and are, in fact, the foundation of the entire voir

dire process. Id. In discussing the difference between

striking jurors on the basis of race or gender versus religion,

we stated,

Attributing to women or African Americans as a group

any specific moral, political, or social belief is overly

broad because membership in the group does not

depend upon subscription to the belief. It is invidious

because individual members who do not share the

belief are made to suffer the attribution anyway.

[**35] But in the case of religion, the attribution is not

overly broad, and therefore not invidious, when the

belief is an article of faith. Because all members of the

group share the same faith by definition, it is not unjust

to attribute beliefs characteristic of the faith to all of

them.

Id. at 496. Appellant raises nothing to persuade us to revisit

our holding in Casarez. Point of error four is overruled.

In Appellant’s fifth point of error, he claims that the

evidence is insufficient to demonstrate that he would be a

future danger in prison and that the testimony concerning

the ′′incompetency′′ of TDCJ (i.e., TDCJ’s failure to protect

its inmates from drugs, alcohol, and violence) violated his

right to individualized sentencing. Appellant concedes in his

reply brief that this fifth point of error is redundant of points

of error eight and nine. He asks that the argument and

authority contained in point [*473] five be incorporated

into point of error nine and that point of error five no longer

exist as a separate point of error. We will grant Appellant’s

request.

In point of error six, Appellant claims that it is

unconstitutional to sentence a mentally ill person to death.

Appellant asserts that [**36] the testimony of his

mental-health experts shows that he has borderline

intellectual functioning; he also notes that he was held to be

incompetent to stand trial prior to the restoration of his

competence and subsequent trial. Citing Atkins v. Virginia,

536 U.S. 304, 122 S. Ct. 2242, 153 L. Ed. 2d 335 (2002)

(banning the execution of mentally-retarded offenders), and

Roper v. Simmons, 543 U.S. 551, 125 S. Ct. 1183, 161 L. Ed.

2d 1 (2005) (banning the execution of juvenile offenders),

he argues that these decisions should be extended to protect

the mentally ill from execution. Appellant concedes that he

is not mentally retarded or a juvenile.

We recently addressed this issue in Mays v. State, 318

S.W.3d 368, 379-80 (Tex. Crim. App. 2010). Quoting our

previous caselaw, we stated that HN11 ′′there is no authority

from the Supreme Court or this Court suggesting that

mental illness that is a ’contributing factor’ in the defendant’s

actions or that caused some impairment or some diminished

capacity, is enough to render one exempt from execution

under the Eighth Amendment.′′ Id. at 379. As in Mays,

Appellant cites no cases from any American jurisdiction that

hold that the Atkins rule or rationale applies to the mentally

ill. See id. Nor has he demonstrated that there [**37] is a

trend among state legislatures to categorically prohibit the

imposition of capital punishment against mentally ill

offenders. See id. Finally, Appellant fails to show that, if he

did suffer from some mental impairment at the time of these

murders, his impairment was so severe that he is necessarily

and categorically less morally culpable than those who are

not mentally ill. See id. at 379-80. As Appellant has raised

nothing new to persuade us to revisit our previous decision,

we overrule point of error number six.

In point of error seven, Appellant avers that the trial court

erred in not allowing the defense to question venire person

Jacqueline Lambert prior to her being struck for cause.

Appellant argues that it was unconstitutional under Witherspoon v. Illinois, 391 U.S. 510, 88 S. Ct. 1770, 20 L. Ed. 2d

776 (1968), and Wainwright v. Witt, 469 U.S. 412, 105 S. Ct.

844, 83 L. Ed. 2d 841 (1985), to prevent him from

attempting to rehabilitate a potential juror who had qualms

against the death penalty.

During voir dire questioning by the State, Lambert stated

that she was opposed to the death penalty under any

circumstances and that she could not set aside her principles

and follow the law. When the State asked if she would still

3 During voir dire, Appellant challenged the prospective jurors’ exclusion under Batson based upon the jurors’ religion. While

Appellant notes that each of the five prospective jurors was a minority, he did not assert at trial, or on appeal, that the State excluded

these jurors because of race.

Page 11 of 14

354 S.W.3d 457, *472; 2011 Tex. Crim. App. LEXIS 1669, **33
vote for a life sentence [**38] no matter how horrible the

crime, Lambert responded as follows:

A. Yes, I know. I know because I know -- I know it’s a

horrible crime and I know. And I don’t mean to -- I

mean, like the judge said, this is the time that I can

speak. We didn’t get down to the next section [of the

questionnaire], which I think has a lot of bearing on my

case, on my feelings being here also, is that I live out on

the North Shore. I know what a horrible thing this was

because it was in the papers, and I know -- and at the

time I read everything. We had just moved there. It was

just horrible.

And when I -- when the judge asked when I was here

before, I thought I could really be objective in this case,

but I drove home that day and I went through Jonestown,

which I do every [*474] day, in and out, and I thought

I just don’t know that I could be as objective as I

thought I could. And I feel really bad about this.

So, it’s not just my indecision -- not indecision, but my

feeling on the death penalty. My other thing is that I

live in that area where there are a lot of other people

that were impacted by this.

Lambert went on to note that at the time of the murders, she

discussed the case with other people in the area and

[**39] read extensively about the case. She stated that all of

the information that she had received had caused her to form

an opinion regarding Appellant’s guilt and that it would

interfere with her ability to sit on the jury.

After the State passed the prospective juror, the trial court

questioned Lambert:

Q. [THE COURT]: Let me ask the question in the way

we need to have it asked. Based on the information that

you have heard in the media or read in the media, have

you formed an opinion as to the guilt or the innocence

of the defendant in this case?

A. Yes.

Q. Would that opinion that you have formed as to his

guilt or innocence affect your verdict?

A. Yes.

The trial court excused the juror.

Appellant objected to Lambert’s excusal, arguing that the

State did not properly prove the reason for her excusal under

Article 35.16 and that the defense had no opportunity to

rehabilitate her. The trial court explained,

Frankly, I think the law says that once she answers the

pretrial publicity question, which I have an obligation,

the Court can on its own motion ask that question once

there are facts that indicate that the juror may have a

bias or prejudice, which I think the State was attempting

to do. But [**40] if it was not asked in the right form

for the record, I think the Court has an obligation to do

so.

And I think the law says, since you-all are so familiar

with [article] 35.16 and of the sections [sic], that once

she answers that question in such a way that it indicates

that her verdict would be affected, that we can question

her no more.

In response to Appellant’s objection, the State moved

Lambert be struck for cause. The trial court granted the

State’s challenge for cause, noting, ′′I’m doing what [article] 35.16 mandates that has to be done once her answer is

clear.′′

Article 35.16(a)(10) states, in pertinent part, that a juror may

be struck for cause for the following reason:

HN12 That from hearsay, or otherwise, there is

established in the mind of the juror such a conclusion as

to the guilt or innocence of the defendant as would

influence the juror in finding a verdict. To ascertain

whether this cause of challenge exists, the juror shall

first be asked whether, in the juror’s opinion, the

conclusion so established will influence the juror’s

verdict. If the juror answers in the affirmative, the juror

shall be discharged without further interrogation by

either party or the court.

(Emphasis [**41] added). Following the State’s questioning

of Lambert, the trial court had the discretion to clarify

Lambert’s position by asking further questions. See Heiselbetz v. State, 906 S.W.2d 500, 510 & n.13 (Tex. Crim. App.

1995). Once clarified, however, any further questioning was

proscribed by statute. Id. at n.13. Accordingly, the trial court

did not abuse its discretion in dismissing Lambert.

We also note that Appellant’s reliance on Witherspoon and

Witt is misplaced. As [*475] summarized by Appellant,

Witherspoon and Witt stand for the proposition that a

defendant has the ′′right to an impartial jury drawn from a

venire that has not been tilted in favor of capital punishment

by selective prosecutorial challenges for cause.′′ See Witherspoon, 391 U.S. at 521-23; Witt, 469 U.S. at 418-21. Here,

Lambert was not discharged because of her opposition to

the death penalty, but rather because she clearly indicated

that her conclusion as to Appellant’s guilt or innocence

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354 S.W.3d 457, *473; 2011 Tex. Crim. App. LEXIS 1669, **37
would influence her verdict. The trial court did not err in

excusing Lambert without additional questioning. Point of

error seven is overruled.

In point of error nine, Appellant complains that ′′a large

portion of the State’s case at punishment [**42] was unfair

because it concerned factors outside of Appellant’s control

or unrelated to Appellant’s personality.′′ Citing Lockett v.

Ohio, 438 U.S. 586, 604-05, 98 S. Ct. 2954, 57 L. Ed. 2d

973 (1978), Appellant complains that testimony concerning

the ′′incompetency′′ of TDCJ (i.e., TDCJ’s failure to protect

its inmates from drugs, alcohol, and violence) violated his

right to individualized sentencing under the Sixth, Eighth,

and Fourteenth Amendments.

Appellant argues, in both his brief and his reply brief, that

he was denied individualized sentencing ′′mostly due to the

testimony of A.P. Merillat, which holds [Appellant]

responsible for TDCJ’s total incompetence in keeping

anybody who enters its doors safe.′′ Evidence at both the

guilt and punishment phases showed that Appellant used

drugs and alcohol and that he was more violent when he did

so. At punishment, Merillat, a senior criminal investigator

for the Texas Special Prosecution Unit, testified that inmates

in Texas prisons have access to drugs, alcohol, and weapons.

He further testified that many violent crimes occur inside

Texas prisons both in the general population and on death

row. Merillat noted that he knew nothing about Appellant or

his case, and that he was [**43] not opining as to whether

Appellant would be a future danger.

Appellant did not object at trial to the admission of the

complained-of evidence on constitutional or other grounds.

Therefore, he presents nothing for our review. Tex. R. App.

33.1(a). Further, even if Appellant preserved error, we have

previously rejected similar arguments. See Jenkins v. State,

912 S.W.2d 793, 818 (Tex. Crim. App. 1995) (on motion for

reh’g) (determining that ′′evidence about the availability of

drugs in prison was relevant to show appellant could be just

as dangerous in prison society as he is in nonprison society

where drugs are freely available′′); see also Coble, 330

S.W.3d at 287-89 (rejecting the appellant’s claim that the

trial court erred by admitting Merillat’s testimony about the

Texas prison-classification system and violence in prison).

Appellant also complains that Dr. Richard Coons testified,

based upon a two-hour interview with Appellant, that

Appellant blamed ′′the gun′′ for the crime, and that there is

a ′′ready availability of weaker victims′′ in the prison

system. Citing Coble, he argues that this Court has found

that ′′Coons is not competent to testify as an expert witness

on future dangerousness, [**44] which his own profession

does not recognize, in a capital murder case at punishment

because his testimony is unreliable under the Eighth

Amendment.′′ See Coble, 330 S.W.3d at 270-79.

The record shows that Appellant filed a pre-trial motion for

a Daubert4

hearing. [*476] However, no hearing was held.

The motion did not specify any expert to which it was

directed. Appellant also made no objections at trial to

Coons’s qualifications or competency as an expert; nor did

he make any constitutional challenges regarding the

admission of Coons’s testimony. Appellant does not present

any argument on appeal as to why Coons was not competent

to testify in this case. Therefore, Appellant has preserved

nothing for this Court to review. Tex. R. App. 33.1(a). We

also note that Appellant misquotes our opinion in Coble. We

did not hold that Coons’s testimony in Coble violated the

Eighth Amendent; rather, although Coons’s testimony was

not sufficiently reliable under Texas Rule of Evidence 702,

we held that its admission was not harmful as it did not

affect the appellant’s substantial rights to a fair sentencing

trial. Coble, 330 S.W.3d at 287. We further noted that the

Supreme Court has held that future dangerousness

[**45] expert testimony such as that provided by Coons

meets the ′′heightened reliability requirement of the Eighth

Amendment.′′ Id. at 270 (citing Barefoot v. Estelle, 463 U.S.

880, 103 S. Ct. 3383, 77 L. Ed. 2d 1090 (1983)).

We further note that, even if the trial court had erred in

admitting Coons’s testimony, Appellant’s substantial rights

to a fair sentencing trial were not violated. Unlike in Coble

where Coons had lost his notes documenting his interview

with the defendant and had no independent memory of that

interview, here Coons interviewed Appellant and based his

opinion regarding future dangerousness upon that interview

in addition to pertinent records regarding Appellant and this

case. See Coble, 330 S.W.3d at 278-79. Moreover, Coons’s

future dangerousness opinion was similar to the opinion of

Appellant’s own expert, psychiatrist Dr. Robert Cantu.

Cantu testified that if Appellant (1) had access to large

amounts of drugs or alcohol, (2) had the opportunity to harm

someone weaker than himself, and (3) was in a relatively

unstructured environment, then Appellant would be a future

danger in prison. Further, both experts agreed with the

diagnosis that Appellant [**46] has ′′intermittent explosive

disorder.′′ As set forth in point of error eight, above, even

without Coons’s testimony, there was ample evidence that

there was a probability that Appellant would commit future

acts of violence. Finally, the State mentioned, but did not

4 Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993).

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354 S.W.3d 457, *475; 2011 Tex. Crim. App. LEXIS 1669, **41
emphasize, Coons’s complained-of testimony during closing

arguments. Point of error nine is overruled.

We affirm the trial court’s judgment.

Hervey, J.

Delivered: December 14, 2011

Publish

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354 S.W.3d 457, *476; 2011 Tex. Crim. App. LEXIS 1669, **46