Judgment affirmed and Opinion filed July 14, 1994

In The 

## Qlnurt0fAppeals
For The 

### First Ststrtrt at Qtoois

NO. 01-92-00908-CR
WILLIAM KEITH SPEER, Appellant
V. THE STATE OF TEXAS, Appellee

On Appeal from the 183rd District Court Harris County, Texas Trial CourtCause No. 598,119
OPINION Appellant, ajuvenile, was certifiedto stand trial as an adult for murder and capital murder for remuneration. A jury found appellant guilty of capital murder for remuneration, and the trial court assessed punishment at life imprisonment. In 11 points of error, appellant contends that: (1) the evidence was insufficient to show that he committed the murder for remuneration or the promise ofremuneration; (2) during voir dire, the prosecutorinaccuratelyinstructed thejury on the law; (3) the trial court erred in 

### denying his motion to quash because the statutory punishment is arbitrary and capricious, in violation of the Texas and United States Constitutions; (4) the trial court never 

### obtained jurisdiction to hearthe case; (5) the trial court failed to require the State to elect

### a paragraph upon which to proceed; (6) the trial court erred by admitting into evidence certain hearsay statements; (7) the trial court erred by denying relevant portions ofhis 

### requestedjury charge numbers two and three, and all ofhis requestedjury charge four; and (8) the trial courterredby excludingcertainexperttestimony. We affirm. In the early morning ofJanuary 24, 1991, 16-year-oldappellant, carryinghis mother's gun, sneaked out of his home and rode with his friend, 19-year-old Franklin 

### Manyoma, to the home of the complainant, Jerry Collins. Appellant entered Collins' bedroom, and shot and killed him as he slept in his bed. Collins was the father ofJohn Collins, also a friend ofappellant. At the time ofthe killing, because John and his father
were not getting along, he had moved out ofhis father's house, and he and Manyoma 

### were living with Cindy Patterson, appellant's aunt, and her three daughters, 17-year-old Christy Barton, 14-year-old Candy Barton, and eight-year-old Kimi Barton. Candy was Manyoma's girlfriend. About a week before the killing, the complainant and Manyoma had a 

### dispute about a $828debt that the complainantwas attempting to collect from Manyoma. Manyoma told appellant that the complainant had given him until noon on January 24 to pay the money, or complainant would give the police a video tape showing Manyoma, John, and others selling cocaine. Several days before the murder, John, Manyoma, 

### Candy, and appellantdrove to the home oftheirfriends, 15-year-oldLee and 20-year-old Victor Garza. Lee said that while appellant was present, Manyoma asked him, Lee, and Victor to kill the complainant for $2500 and a pistol. They both refused, but each day 

### Manyoma continued to askLee to do the killing. Appellantwaspresent on some of these occasions. Manyomafinally told Lee thathewas going to get appellantto do it. 

### In his first point oferror, appellant contends the evidence was insufficient to show that he murdered the complainant for remuneration or the promise of remuneration, as charged in the indictment. In reviewing the sufficiency ofthe evidence,

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### an appellate court must view the evidence in the light most favorable to the verdict to determineif anyrationaltrier of fact could have found the essential elements ofthe crime 

### beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789 (1979). This Court may not sit as a thirteenth juror and disregard or reweigh the evidence. Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988). If there is evidence that establishes guilt beyond a reasonable doubt, and the trier offact believes that evidence, we are not in a position to reverse the judgment on sufficiency of the 

### evidence grounds. Id.; Glass v. State, 761 S.W.2d 806, 807 (Tex. App.-Houston [1st Dist.] 1988, no pet.). The jury, as trier of fact, is the sole judge of the credibility of witnesses, and may believe or disbelieve all or any part of a witness' testimony. Sharp v. State,707 S.W.2d 611, 614 (Tex. Crim. App. 1986), cert, denied,488 U.S. 872, 109 S.Ct. 190 (1988); Smith v. State, 789 S.W.2d 419, 420 (Tex. App.-Houston [1st Dist.] 1990, 

### pet. refd). A jury may believe a witness even though his testimony is contradicted. Sharp,707 S.W.2d at 614. 

### To support his argument, appellant submits affidavits from six jurors (admitted at the hearing on the motionfor new trial) relatingthejurors' understanding of the evidence at trial to support a "promise ofremuneration." The affidavits contain the following statements:In my service as ajurorin this case, the crucial decision that had to be made was whether or not WILLIAM KEITH 

### SPEER was guilty of Capital Murder or only of the lesser included offense ofMurder. There was no doubt in my mind that WILLIAM KEITH SPEER was guiltyofMurder, butto find him guilty of Capital Murder it was necessary for me to find he acted 

### because of "remuneration or the promise of remuneration, namely money".
There was no evidence that WILLIAM KEITH SPEER 

### had received any money prior to hiskilling JERRY COLLINS so my focus was on the "promise ofremuneration" portion.

•3-There was also no evidence that FRANKLIN MANYOMA 

### ever promised WILLIAM KEITH SPEER any money to kill JERRY COLLINS and my verdict of Capital Murder was 

### based on myunderstanding that WILLIAM KEITHSPEER'S beliefthat FRANKLIN MANYOMA might give him money 

### becausehe did the killing was sufficient to satisfy the "promise ofremuneration" requirement. 

### Specifically, I do not believe the evidence showed FRANKLIN MANYOMA ever paid WILLIAM KEITH SPEER to kill JERRY COLLINS nor did FRANKLIN 

### MANYOMA ever promise WILLIAM KEITH SPEER he would pay him if he would killJERRYCOLLINS. We may not consider these affidavits. Rule 606(b) of the Texas Rules of 

### Criminal Evidence provides that ajuror is not competent to testify (or to give affidavit testimony) about "any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon his or any otherjuror's mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his mental processes in connection therewith, except that ajurormay testify as to any matter 

### relevant to the validity of the verdict or indictment." SeeMclntire v. State, 698 S.W.2d 652, 658 (Tex. Crim. App. 1985) (motion for new trial alleging jury misconduct on matter outside the record must be supported by the affidavit ofjuror in a position to know the 

### facts). Appellant complains about the sufficiency of the evidence as it relates to the indictment andjuryinstructions. This is a mattershown bythe record; we do not consider what thejurors recall about the evidence. The record reflects that the jury was given the following definition of
remuneration: Remuneration means a pecuniary reward given or received because of some act. The act must be done for the 

### purpose of receiving some benefit. The focus is on the defendant's state of mind and the State is obligated to offer evidence which establishes beyond a reasonable doubt the defendant's intent or state of mind as related to an 

### expectation ofremuneration.

-4-The record further reflects that the indictment limited remuneration to "money." Therefore, the State had the burden to offer evidence establishing beyond a reasonable 

### doubt appellant's intent as related to an expectation of money. When considering evidence of remuneration, the Court ofCriminal Appeals has consistently held that the "focus is on the actor's state ofmind." Ricev. State, 805 S.W.2d432, 434-35 (Tex. Crim. 

### App. 1991); Beets v. State, 767 S.W.2d 711, 735 (Tex. Crim. App. 1987); Duff-Smith v. State, 685 S.W.2d 26 (Tex. Crim. App. 1985); McManus v. State, 591 S.W.2d 505, 513 (Tex. Crim. App. 1979). Appellant argues that the evidence proved that he killed the complainantto pleaseManyoma, not to receive money. The most compelling evidence relating to appellant's motive is included in 

### his confession, where he states, "I finally told [Manyoma] that I would do it. I wanted to 

### help out myfriend, I did not want him to go to jail, and I knew he wouldgivememoney." He also stated at trial and in his confession that after the murder, "[w]hile we were riding 

### back to my house, Franklin told me that he would pay seven or eight thousand dollars. He claimed that he had the money in a bank account but could not get it." Moreover, reasonable inferences could be drawn from the following circumstantial evidence of 

### appellant's state of mind: (1) appellant was present when the job was first offered to Lee and Victor Garza in exchange for money and a pistol; (2) Manyoma told Lee Garza that 

### he was going to pay appellant to kill the complainant; and (3) after the killing, appellant walked up to a group of people, including Manyoma and Lee Garza, patted Manyoma on the back and said, "So when are you going to pay me?" We find this evidence sufficient for a rational trier of fact to have found that appellant killed the complainant for the 

### promise ofremuneration, namely money. We overrule point oferrorone. In point oferrortwo, appellant asserts the trial court erred by overruling his 

### objection to a particular statement made by the prosecutor during voir dire. Appellant contends the prosecutor misstated the law when she told the venire members that "you

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### can find someone guilty of capital murder even if you don't have someone expressly 

### promising to our killer they're going to get any money." The prosecutor's entire

statement was: You must lookto the state ofmind ofthe person charged with 

### capital murder and if the reason that they committed an intentional killing was because they expected some sort of financial benefit or gain—andin this particularcase we have to 

### show that the expected financial gain was money—then you can find someone guilty of capital murder even if you don't 

### have someone expressly promising to our killer they're going to get any money. The State does not dispute that there was no evidence that appellant 

### received remuneration for killingcomplainant. Therefore, as in this case, when proofof murder for thepromise ofremuneration is required, "the focus is on the actor's intent or state of mind: Did the actor kill in the expectation of receiving some benefit or 

### compensation. . .?" Beets,767 S.W.2d at 735. "The existence of a 'culpable promisor' is not required." Id. 

### In McManus, the Court of Criminal Appeals affirmed a conviction where the defendant murdered the parents ofhis girlfriend, Paula, based on the defendant's 

### expectation ofreceiving one-third ofPaula's inheritance. 591 S.W.2d at 513. There was no evidence that Paula agreed to pay the defendant. Id. The court stated that "the record clearly reflects that appellant expected to share in the proceeds from the estate of the victims and that he acted out of an expectation that he would receive such
remuneration." Id. The court further stated that: 

### appellant could have inferred from Paula's conduct that she agreed to and acquiesced in his request for one-third of the proceeds of the estate. Paula knewthat appellant was serious about having her parents murdered, and, according to her own testimony, she listened to appellant discuss these plans 

### frequently. . . . The record is clear that appellant perceived 

### Paula's conduct as animplicitpromise of a benefit and that he acted upon thatbasis.

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### Id. We find no error in the prosecutor's statement that "you can find someone guilty of 

### capital murder even if you don't have someone expressly promising to our killerthey're going to get any money." The prosecutor correctlystated the law. We overrule point of

error two. 

### In points oferrorthree and four, appellant contends the trial court erredby overruling his motion to quash because the statutory punishment is arbitrary and 

### capricious, in violation of the Texas and United States Constitutions. Appellant contends that because the statutory punishment, when committed by a juvenile, is limited to life imprisonment, it unconstitutionally limits the sentencer's consideration of any relevant circumstances that could cause it to decline to impose the life punishment. When reviewing the constitutionality of a sentencing statute, we consider: 

### (1) the gravity of the offense relative to the harshness of the penalty; (2) the sentence compared to that received by others in the same jurisdiction; and (3) the sentence compared to similar sentences in otherjurisdictions. Solem v. Helm, 463 U.S. 277, 290, 103 S.Ct. 3001, 3010 (1983). The offense is one for which Texas law provides the death penalty for adult offenders without violation of the state or federal constitutional provisions against cruel 

### and unusual punishment. Smith v. State, 683 S.W.2d 393, 409 (Tex. Crim. App. 1984). Oklahoma allows the death penalty as punishmentfor a similar offense committed by one 

### as young as 16. Eddings v. Oklahoma, 455 U.S. 104, 105, 102 S.Ct. 869, 871 (1982). If appellant had been eight months older, he couldhave been assessed the death penalty. In addition, the mandatory life sentence does not make appellant ineligible for parole under
Texas law. 

### Moreover, the jury heard testimony that appellantwas abusedby his father, and that he had low self-esteem, allowing others to make important decisions for him. 

### This evidence was mitigating in nature, and the jury was able to consider its effect in

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### determining whether appellant committed capital murder or murder, in that the evidence
tended to show that his motive was not for remuneration but for other reasons. We further note that the recidivist statute that formerly required the 

### imposition of a life sentence was repeatedly upheld. SeeBrooks v.State, 642 S.W.2d 791 (Tex. Crim. App. 1982); Wilson v. State, 633 S.W.2d 952, 959 (Tex. Crim. App. 1982); Williams v. State, 605 S.W.2d 596, 600 (Tex. Crim. App. 1980). We overrule points of

error three and four. In point of error five, appellant contends the trial court never obtained 

### jurisdiction to handle the case pursuant to Tex. Fam. Code Ann. § 54.02 (Vernon 1986) because the trial court never assumed jurisdiction. The day after appellant's May 14, 1991, certification hearing, the Honorable Robert B. Baum, judge ofthe 314th District Court, a juvenile court, signed a certification order that waived jurisdiction, and transferred appellant to the criminal district court. On the same day, the Honorable Jim 

### Barr, judge of the 183rd District Court, signed an order assuming jurisdiction over appellant, directed that the criminal cause be filed and docketed, and ordered the sheriff to take appellant into custody. At the top ofJudge Barr's order are the words, "IN THE 183RD DISTRICT COURT OF HARRIS COUNTY, TEXAS." However, beneath his signature below, Judge Barr is identified as "JUDGE, 314TH DISTRICT COURT HARRIS COUNTY, TEXAS." This discrepancy is the basis ofappellant's claim that the 

### 183rd District Courtnever obtainedjurisdiction over the cause. Appellant claims thatEx parte LeBlanc, 577 S.W.2d 731 (Tex. Crim. App. 1979), is analogous to the case before us. In LeBlanc, the court held that criminal proceedings against the appellant were terminated upon his discharge after an examining trial, where it was determined there was no probable cause that he had committed the 

### alleged offenses. LeBlancis distinguishable from the case before us. LeBlancdealt with the valuable right ofan examining trial, i.e., an event that "furnishes another opportunity

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### to have the criminal proceedings against the juvenile terminatedand the jurisdictionofthe 

### juvenile court resumed." Id. at 733. In contrast, in the case before us, the order assumingjurisdiction over the cause contained a discrepancy that appears to be no more 

### than a typographical error or editing oversight. The caption of the order identifies the
courtas the 183rdDistrictCourt. We find that the 183rdDistrictCourtproperlyassumed 

### jurisdiction over the cause. We overrule point oferror five. In point oferror six, appellant contends the trial court erred in failing to require the State to elect the paragraph upon which it would proceed. Before evidence


### was presented, the trial court overruled defense counsel's request that the State be required to make an election. Appellantnever reurged his motion after the State rested. The indictment reads, in pertinent part, that appellant did: 

### intentionally and knowingly cause the death of JERRY COLLINS, hereinafter styled the Complainant, by shooting 

### the Complainantwith a deadlyweapon, namely, a firearm. It isfurther presented that

... the Defendant

... did then and there unlawfully intendto cause serious bodily injury to . .



### . the Complainant, and did cause the death of the Complainantby intentionally andknowingly committing an act clearly dangerous to human life, namely, by shooting the Complainantwith a deadly weapon, namely, a firearm. It is further presented that

... the Defendant

... did then and there unlawfully, intentionally and knowingly cause the 

### death of. . . the Complainant, by shooting the Complainant with a deadly weapon, namely, a firearm, and the Defendant committed the murder for remuneration and the promise of remuneration, namely, money. 

### The first two paragraphs allege alternative theories of committing the offense of murder, not two separate offenses. Where there is sufficient evidence to 

### support the submission of two theories of committing a single offense, the State is not 

### required to elect only one theory for submission. Vasquez v. State, 665 S.W.2d 484, 486-

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### 87 (Tex. Crim. App. 1984),; Richardson v. State, 766 S.W.2d 538, 541 (Tex. App.- Houston [14th Dist.] 1989,pet. refd). 

### The third paragraph alleges the offense of capital murder. Because the State in the first two paragraphs alleged murder, a lesser included offense of capital murder as alleged in the third paragraph, the State was not required to make an election. Washington v.State, 111 S.W.2d 537,546-47 (Tex. Crim. App. 1989). We overrule point
oferror six. 

### In point of error seven, appellant complains about the trial court allowing Lee Garza to testifyaboutManyoma soliciting him and hisbrotherto killthe complainant. 

### Appellant contends the testimony wasinadmissible hearsay; the State contends that the testimony is not hearsay under Tex. R. Crim. Evid. 801(e)(2)(E). Rule 801(e)(2)(E) provides that "a statement is not hearsay if the statement is offered against a party and is
a statement by a co-conspirator of a party during the course and in furtherance of the conspiracy." The complained-oftestimonybetween Garza andthe prosecutorfollows: 

### Q: Prior to Mr. Collins being killed, did Franklin Manyoma 

### ever indicate to you whether or not Keith Speerwas going to assist in killing Mr. Collins? A: Yes, ma'am. 

### Q: WhatdidFranklinManyoma sayaboutKeith Speer? A: Well, he told me around, I would say, around three days before

— 

### Defense Counsel: Judge, I object to this not having anything to do with the furtherance or in the course ofand object to it as hearsay. 

### (UNRECORDED BENCHCONFERENCE)
Court: That will be overruled. 

### Q: What did Franklin Manyomatell you about Keith Speer?

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### A: What do you mean? What did he tell me about Keith Speer? 

### Q: The question I asked you right before we approached the bench, I believe I asked you whether or not Franklin Manyoma had ever indicated to you whether or not Keith 

### Speer was going to do anything in reference to killing Mr. Collins; do you remember that?
A: Yes, ma'am. Q: What was your response? A: He had told me like three days before the murder that Keithwas going to do it. Q: Did he tell you how much he was going to do it for and why he was going to do it? 

### Defense Counsel: Object to this also, Judge. Court: Overruled. Same objection lodged. 

### Defense Counsel: Yes, yourHonor. Court: Same ruling. A: He didn'tsay exactly. He said he was going to pay Keith a few hundred dollars. Exactly I don't know what to tell you. Hejusttold me a few hundred dollars. Q: Thatwas before Mr. Collins was killed? A: Yes, ma'am. 

### Appellant concedes the statements were made during the course of the conspiracy, but contends they were not made in thefurtherance of the conspiracy because they neither required nor suggested any action on the part of either party or any other person, nor did they provide information to Lee that was necessary for him to act in any way in furtherance ofthe conspiracy. 

### The "in furtherance" of the conspiracy requirement is a separate 

### requirement that must be met in addition to the requirement that the statement be made "during the conspiracy." Meador v. State, 812 S.W.2d 330, 333 (Tex. Crim. App. 1991).

-11-"Some substance mustbe given to the rule's requirement, not only that the statementwas 

### made 'in the course' of the conspiracy, butalso thatit was made 'in furtherance' thereof." Williamsv.State,790 S.W.2d 643, 645 (Tex. Crim. App. 1990). In Deeb v. State, 815 S.W.2d 692, 697 (Tex. Crim. App. 1991), the court reviewed some ofits decisions on whether certain statements met the "in furtherance" of 

### the conspiracyrequirement. In Helms v. State, 493 S.W.2d 227, 230 (Tex. Crim. App. 1973), the co-conspirator's statement was made to facilitate the disposal ofthe murderweapon. In Rodriguez v. State, 552 

### S.W.2d 451, 454, the co-conspirator's statements were made to further the negotiations for the purchase of the illegal drugs. In Denney v. State, 558 S.W.2d 467, 469, the co 

### conspirator's statements were made for the purpose of disposing of the fruits of the crime and evidence that the crime had been committed. In contrast to these examples, in Ward v. State, 657 S.W.2d 133, 136-137, the co-conspirator's statements were made in response to questioning after the murder had been completed and the defendant was in custody. Manyoma's statements, although made before the murder, were not made in furtherance 

### of the conspiracy. We find nothing inManyoma's statements to Lee Garza that advanced the cause ofthe conspiracynor served in any way to facilitate the conspiracy. See Meador, 812 S.W.2d at 334. Moreover, Manyoma's statements to Lee Garza did not "serve to further the conspiracy to murder complainant for remuneration." See Deeb, 815 S.W.2d at 698. The statements appear to be more in the nature of admissions or declarations made during a mere conversationbetween conspirators, and theiradmissionwas error. Accordingly, thejudgment must be reversed unless we determine beyond a reasonable doubt that the error made no contribution to the conviction. Tex. R. App. P. 

### 81(b)(2). To make this determination, we examine the other evidence showing that a conspiracy existed for appellant to kill complainant for remuneration. Lee and Victor 

### Garza testified thatwhen Manyoma asked them to do the killing for money and a pistol,

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### appellant was present. Appellant, both in his confession and at trial, admitted to being present. Moreover, in his confessionappellant stated, "I knew he would give me money." He further stated that after the murder, "[w]hile we were riding back to my house, 

### Franklin told me that he would pay seven or eight thousand dollars. He claimed that he had the money in abankaccount but could not get it." Afterthe killing, appellantwalked up to a group ofpeople, including Manyoma and Lee Garza, patted Manyoma on the back and said, "So when are you going to pay me?" Based on this evidence, we find beyond a reasonable doubt that the error made no contribution to the conviction. We 

### overrulepointoferrorseven. In points oferroreight and nine, appellant contends the trial court erred in 

### denying relevant portions of his requested jury charges two and three, relating to Manyoma's statements made outside the presence of appellant. The trial court refused the italicizedportions ofthe followingjuryinstructions: 

### In order for you to take into consideration such statements, if any, as any evidence against the defendant, you must believe from all the evidence beyond a reasonable doubt 

### that the defendant, William Keith Speer, had agreed with Franklin Manyoma to commit the offense alleged in the indictment and that they were acting together in the commission of such offense. Further, the statements made must have been made infurtherance oftheconspiracy or in the 

### courseofcompletingtheconspiracy.

Unless you do believe beyond a reasonable doubt that there was such agreement and that the defendant was a party thereto, or if you have a reasonable doubt thereof, you will disregard such statements, if any, ofFranklin Manyoma as any evidence against the defendant. Additionally, should you find 

### thatthere was such agreement and that the defendant was a party thereto, in your consideration ofthe statements you are instructed they were not offered for the truth of the matter assertedbutmerelyto show theexistence ofa conspiracy.

-13-There is no error in excluding the requested instruction if "defendant's own acts and declarations sufficiently connected him with the offense to authorize a jury to convict him, and because no declarations or acts of his co-principals connected him." 

### Lewis v. State, 237 S.W.2d 293, 301 (Tex. Crim. App. 1951). In Casillas v. State, 733 S.W.2d 158 (Tex. Crim. App. 1986), the court followed its reasoning in Lewis. Although the second part of the Lewis holding (that no declarations or acts of his co-principals connected defendant) is not valid in the case before us, in Casillas, the court emphasized 

### and relied upon the first part of its holding in Lewis, defendant's acts and declarations, and not on the second part, the co-conspirators' acts and declarations connecting defendant. The Casillas court emphasized that the appellants' own acts and declarations 

### showed that they were sufficiently connected with the commission of the felony to authorize a jury to convict him. Id. at 167. The court also noted that holding that there
was no error in thejury instructions comported with the principle that, where evidence which otherwise would be inadmissible, is proven by some other testimony, no reversible

error is shown. Id. 

### Appellant confessed to the murder of the complainant. He also confessed that one of the reasons he killed the complainant wasbecause "I knew [Manyoma] would give me money." Appellant's own acts and declarations showed that he was sufficiently connected with the commission ofthe felony to authorize ajury to convict him; therefore, 

### there was no error in refusing the requested instructions. We overrule points of error eight and nine. In point of error 10, appellant contends that the trial court refused to 

### permit Dr. Quijano's testimony, offered pursuant to Tex. R. Crim. Evid. 702. Rule 702 provides that "[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an

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### expert byknowledge, skill, experience, training, or education, maytestify thereto in the form of an opinion or otherwise." 

### Appellant again relies on sixjuror affidavits, each of which state that hearing testimony about Dr. Quijano's diagnosis of appellant's "dependent personality disorder" would have assisted them in determining whether appellant killed the 

### complainant for the promise of remuneration or out of a desire to pleaseManyoma. The decision whether to allow a witness to testify as an expert is committed to the sound 

### discretion of the trial court. Duckett v. State, 797 S.W.2d 906, 910 (Tex. Crim. App. 1990). In reviewing the trial court's decision to exclude the testimony, the jurors' assessment ofthe importance ofDr. Quijano's testimonyis irrelevant. Appellant argues that the trial court abused its discretion because Dr. 

### Quijano had evidence to which layjurorswould not routinely be privy. In support of his argument, he cites Duckett,where the defendantwas convicted ofindecency with a child. 797 S.W.2d at 920. In Duckett, the court held that the trial court did not abuse its discretion by allowingexpert testimonythatprovided thejurywith information concerning child sexual abuse syndrome. Id. In its analysis, the courtstated: The test is not whether opinion testimony embraces an 

### ultimate fact in the case, for that is the expected or desired result of specialized testimony. The test, restated, is whether the expert's testimony, if believed, will assist the untrained layman trier offact to understand the evidence ordetermine a fact in issue

. . . and whether it is otherwise admissible under general rules ofrelevantadmissibility.

Where specialized knowledge will assist thejury to understand the evidence orwill assistthem to determine a fact in issue, an 

### expert may be allowed to provide the jury with the benefit of that knowledge. Two themes are prevalent within the language of the rule. First, the jury must not be qualified to intelligently and to the best possible degree determine the particular issue without benefit of the expert witness' specialized knowledge. Second, the clear meaning ofthe rule

-15-must be observed.

. . . The use of expert testimony must be limited to situations in which the expert's knowledge and experience on a relevant issue are beyond that ofan average juror. Id. (citations omitted). 

### A review ofDr. Quijano'stestimony reveals thateven thoughhis insight into appellant's dependent personality might have been of some benefit to the jury, the trial court could have properly concluded that it was not the type oftestimony found outside 

### the range of a layperson's knowledge. See Pierce v. State, 111 S.W.2d 399, 414 (Tex. Crim. App. 1989) (expert testimony not allowed to assist jury on suggestiveness of a 

### lineup). Dr. Quijano would have testified that: (1) appellanthad a dependentpersonality 

### disorder; (2) the disorder was characterized by a very dependent life style; (3) persons with this disorderrely on the support and approval of others, such that they allow others to make important decisions for them, and engage in menial and demeaning tasks to maintain relationships with them; (4) appellant's willingness to do things for others was a result of an inner need to please; and (5) appellant's dependent personality disorder could have been a contributingfactorto appellant's decision to killcomplainant.
We find that the trial court did not abuse its discretion when it concluded 

### that Dr. Quijano's testimony was not the type of testimony found outside the range of a layperson's knowledge. It is not uncommon for teenagers to be insecure, easily influenced by others, and to act against their better judgment by following those doing the influencing. In addition, the fact that appellant was strongly influenced by Manyoma and 

### others was established at trial. The trial court allowed two nonexpert witnesses to testify about their perceptions ofappellant's lack ofself-esteem, his need for others' approval, 

### and his engaging in menial tasks to please others. Moreover, Dr. Quijano's testimony that appellantcould have been motivatedby a dependence on Manyoma would notnecessarily 

### exclude the possibility that he could have also been motivated by money. Appellant's

-16-confession reveals three motives: first, to help out Manyoma; second, to prevent Manyomafrom going to jail; andthird, to receive money. We overrule point oferror 10. 

### In his final point of error, appellant contends the trial court erred by 

### admitting into evidence a tape and transcript of a conversation between appellant and Manyoma without a limitingjury instruction. Manyoma was the initial suspect in the murder ofthe complainant. At the 

### request ofpolice officers investigating the murder, appellantvoluntarily agreed to wear a "wire" to tape a conversation with Manyoma. At trial, the State offered into evidence a tape and a transcript of the covertly recorded conversation between appellant and Manyoma. Appellant objected to the evidence as hearsay; the State responded that the evidence was being offered not for its truth, but simply to show that the conversation 

### occurred. The court allowed the tape and transcript into evidence. Appellant requested the following limitinginstruction, which was refused: There has been admitted in evidence testimony relating to certain taped conversations between the Defendant and Franklin Manyoma. This evidence was not admitted for the purpose of establishing the truth of the matter contained in said conversations but to assist you, if it does, in determining [to be filled in because counsel did not know the reason for 

### admitting the tape]. The recorded conversation shows appellant in the position of trying to elicit incriminating statements from Manyoma without alerting police to appellant's own role in the murder. Therefore, much of the conversation is nonsensical. Initially, during the conversation, Manyomais obviously confused about appellant's persistence in questioning him about the details of the murder that appellant had committed. Finally, however, 

### Manyoma appears to suspect that appellant is attempting to set him up as the trigger man. Manyoma then begins questioning appellant about appellant's own role in the murder, which appellant denies. Although both appellant and Manyoma denied any participation in the murder during the conversation, the context indicates that they both

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### knew details ofthe murderthat they attempted to blame eitheron each other oron third parties. Texas Rule ofCriminal Evidence 105(a) states: When evidence which is admissible

... for one purpose but not admissible

... for anotherpurpose is admitted, the court, upon request, shall restrict the evidence to its proper scope 

### and instruct the jury accordingly; but, in the absence ofsuch request the court's action in admitting such evidence without limitation shall notbe a groundfor complainton appeal. 

### See Mcintoshv.State,855 S.W.2d 753, 768 (Tex. App.-Dallas 1993,pet. refd). The party opposing the admission of the evidence has the burden of 

### requestingthe correctlimiting instruction at the trial. Plante v. State,692 S.W.2d 487, 493 

### (Tex. Crim. App. 1985). Appellant preserved error for appeal by objecting to the admission of the tape and transcriptandbyrequestingthe limiting instruction. 

### Where evidence is offered for a specific purpose, the party opposing its admission is entitled to a limiting instruction informing the jury of the limited purpose of the evidence. Porter v. State, 709 S.W.2d 213, 215 (Tex. Crim. App. 1986). Here, the 

### evidence was offered not for itstruth, but for the purpose of provingthatthe conversation between appellant and Manyoma actually occurred. Because ofthe limited use of the evidence, appellant was entitled to a limiting instruction that he requested and the trial court refused. See Tex. R. Crim. Evid. 105(a). The trial court erred when it did not 

### instruct the jury on the limited purpose for which the evidence was admitted. SeePorter
709 S.W.2d at 216. Even though the trial court erred in denying appellant's requested jury instruction, thejudgmentwillnotbe reversed if we determine beyond a reasonable doubt 

### that the error made no contribution to the conviction. Tex. R. App. P. 81(b)(2). To make this determination, we examine the record for other evidence showing that a conspiracy existed for appellantto kill the complainantfor remuneration.

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### The record shows that Lee and Victor Garza testified that when Manyoma asked them to do the killing for money and a pistol, appellant was present. Appellant, 

### bothin his confession and at trial, admitted to beingpresent. Moreover, in his confession appellant stated, "Iknew he would give me money." Hefurther stated in his confession that after the killing, "[w]hile we were riding back to my house, Franklin told me that he 

### would pay sevenor eight thousanddollars. He claimed that he had the money in a bank 

### account but could not get it." Afterthe killing, appellantwalked up to a groupofpeople, including Manyoma andLee Garza, patted Manyoma on the back and said, "So when are 

### you going to pay me?" Based on this evidence, we find beyond a reasonable doubt that the error made no contribution to the conviction. We overrulepointoferror11. We affirm the trialcourt's judgment.

I si Lee Duggan. Jr. Lee Duggan, Jr. Justice 

### Justices Mirabal and Wilson alsositting.
Publish. Tex. R. App. P. 90. 

### Judgment rendered and opinion delivered July 14, 1994. True Copy Attest: 

### y

# r-2 Margie Thompson Clerk ofCourt

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