1

NO. AP-77,034

IN THE

COURT OF CRIMINAL APPEALS

AT AUSTIN, TEXAS

BRANDON DANIEL § APPELLANT

VS. §

THE STATE OF TEXAS § APPELLEE

APPEAL FROM THE 403RD JUDICIAL DISTRICT COURT

TRAVIS COUNTY, TEXAS

CAUSE NO. D-1-DC-12-201718

STATE’S BRIEF

ROSEMARY LEHMBERG

District Attorney

Travis County, Texas

Lisa Stewart

Assistant District Attorney

State Bar No. 06022700

Lisa.Stewart@traviscountytx.gov

AppellateTCDA@traviscountytx.gov

P.O. Box 1748

Austin, Texas 78767

(512) 854-9400

Oral Argument Not Requested Fax No. 854-4810

AP-77,034

COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS

Transmitted 7/20/2015 1:52:16 PM

Accepted 7/20/2015 2:22:10 PM

ABEL ACOSTA

CLERK
2

TABLE OF CONTENTS

TABLE OF CONTENTS..................................................................................................2

INDEX OF AUTHORITIES ............................................................................................4

STATEMENT OF THE CASE ........................................................................................5

STATEMENT REGARDING ORAL ARGUMENT.....................................................6

STATEMENT OF FACTS FROM GUILT/INNOCENCE...........................................6

Facts of this Capital Murder Committed at an Austin Walmart ................................................. 6

Evidence Recovered After Appellant Taken into Custody......................................................... 9

Forensic Evidence..................................................................................................................... 12

Evidence from Officer Padron’s Autopsy................................................................................. 12

Officer Padron’s Personal and Professional Background......................................................... 13

Defense Evidence at Guilt/Innocence....................................................................................... 15

STATEMENT OF FACTS FROM PUNISHMENT PHASE......................................18

The Night of this Capital Murder Offense................................................................................ 18

Lack of Remorse and Extraneous Bad Acts in Texas............................................................... 18

Extraneous Bad Acts Committed in Colorado.......................................................................... 22

Extraneous Bad Acts and Disciplinary Violations in Jail......................................................... 23

Appellant’s Mail and Recorded Phone Conversations in Jail................................................... 26

Inmate Classification System and Prison “Society” ................................................................. 28

Officer Padron’s Personal and Professional History ................................................................ 30

Defense Evidence at the Punishment Phase.............................................................................. 32

State’s Rebuttal Evidence at Punishment ................................................................................. 38

The Verdict at the Punishment Phase ....................................................................................... 40

SUMMARY OF THE ARGUMENTS...........................................................................41

State’s Reply to Appellant’s First Point of Error...................................................................... 41

State’s Reply to Appellant’s Second Point of Error ................................................................. 42

State’s Reply to Appellant’s Third Point of Error .................................................................... 43
3

STATE’S REPLY TO APPELLANT’S FIRST POINT OF ERROR........................44

The evidence was legally sufficient to establish that there is a probability that appellant would 

commit criminal acts of violence and constitute a continuing threat to society. ...................... 44

Standard and Scope of Review ............................................................................................. 44

Application of Law to Facts.................................................................................................. 45

STATE’S REPLY TO APPELLANT’S SECOND POINT OF ERROR...................52

Appellant did not suffer harm as a result of the trial court’s denial of his challenge for cause to 

venireperson Reading. Alternatively, the trial judge did not err in denying appellant’s 

challenge for cause to venireperson Reading............................................................................ 52

Appellant Cannot Show Harm.............................................................................................. 52

Alternatively, the Trial Judge Did Not Err in Denying the Challenge for Cause................. 53

STATE’S REPLY TO APPELLANT’S THIRD POINT OF ERROR.......................61

Appellant failed to preserve any alleged error for review because there was no adverse ruling. 

Alternatively, the trial court did not abuse its discretion in limiting the voir dire hearing to the 

expert’s qualifications and the basis of her findings................................................................. 61

Relevant Facts....................................................................................................................... 61

Appellant Failed to Preserve Any Alleged Error for Review............................................... 62

The Trial Judge Afforded Appellant a Proper Rule 705(b) Hearing .................................... 63

PRAYER ..........................................................................................................................65

CERTIFICATE OF COMPLIANCE............................................................................65

CERTIFICATE OF SERVICE......................................................................................66
4

INDEX OF AUTHORITIES

Cases

Alba v. State, 905 S.W.2d 581 (Tex.Crim.App. 1995), cert.denied, 516 U.S. 1077 (1996)......... 63

Barley v. State, 906 S.W.2d 27 (Tex.Crim.App. 1995)................................................................ 47

Bell v. State, 938 S.W.2d 35 (Tex.Crim.App. 1996), cert.denied, 522 U.S. 827 (1997).............. 45

Beltran v. State, 728 S.W.2d 382 (Tex.Crim.App. 1987)............................................................. 50

Berry v. State, 233 S.W.3d 847 (Tex.Crim.App. 2007)................................................................ 50

Chambers v. State, 903 S.W.2d 21 (Tex.Crim.App. 1995) .......................................................... 44

Comeaux v. State, 445 S.W.3d 745 (Tex.Crim.App. 2014).......................................................... 53

Davis v. State, 313 S.W.3d 317 (Tex.Crim.App. 2010) ........................................................ passim

Devoe v. State, 354 S.W.3d 457, 461-62 (Tex.Crim.App. 2011) ................................................. 45

Druery v. State, 225 S.W.3d 491 (Tex.Crim.App. 2007) ............................................................. 44

Estrada v. State, 313 S.W.3d 274 (Tex.Crim.App. 2010)............................................................ 46

Feldman v. State, 71 S.W.3d 738 (Tex.Crim.App. 2002)....................................................... 58, 61

Freeman v. State, 340 S.W.3d 717 (Tex.Crim.App. 2011) .......................................................... 44

Fuller v. State, 253 S.W.3d 220 (Tex.Crim.App. 2008), cert.denied, 555 U.S. 1105 (2009)...... 63

Gardner v. State, 306 S.W.3d 274 (Tex.Crim.App. 2009)........................................................... 58

Gonzales v. State, 353 S.W.3d 826 (Tex.Crim.App. 2011).............................................. 52, 58, 61

Goss v. State, 826 S.W.2d 162 (Tex.Crim.App. 1992), cert.denied, 113 S.Ct. 3035 (1993) ....... 64

Huffman v. State, 746 S.W.2d 212 (Tex.Crim.App. 1988)........................................................... 50

Jenkins v. State, 912 S.W.2d 793 (Tex.Crim.App. 1995) (op. on reh’g.)..................................... 62

Soliz v. State, 432 S.W.3d 895 (Tex.Crim.App. 2014)........................................................... 44, 45

Williams v. State, 273 S.W.3d 200 (Tex.Crim.App. 2008)..................................................... 25, 49

Statutes

Art. 35.15(a), V.A.C.C.P. ............................................................................................................. 52

Art. 35.16(b)(3), V.A.C.C.P.......................................................................................................... 58

Art. 35.16(c)(2), V.A.C.C.P.......................................................................................................... 58

Art. 37.071(h), V.A.C.C.P. ............................................................................................................. 5

Rules

Tex.R.App.Proc. 33.1 ............................................................................................................. 59, 63

Tex.R.App.Proc. 9.4(e)................................................................................................................. 65

Tex.R.App.Proc. 9.4(i)(2)(A) ....................................................................................................... 65

Tex.R.Evid. 705(b) ..................................................................................................... 43, 62, 63, 64
5

NO. AP-77,034

IN THE

COURT OF CRIMINAL APPEALS

AT AUSTIN, TEXAS

BRANDON DANIEL § APPELLANT

VS. §

THE STATE OF TEXAS § APPELLEE

APPEAL FROM THE 403RD JUDICIAL DISTRICT COURT

TRAVIS COUNTY, TEXAS

CAUSE NO. D-1-DC-12-201718

TO THE HONORABLE COURT OF CRIMINAL APPEALS:

Now comes the State of Texas and files its brief in response to that of the 

appellant. 

STATEMENT OF THE CASE

The State indicted appellant for the capital murder of Austin Police Officer 

Jaime Padron. (CR 98, 100). The jury found appellant guilty of capital murder as 

alleged in the indictment. (CR 184). The trial court sentenced appellant to death 

based on the jury’s answers to the punishment issues. (CR 189; RR 26: 221). 

Appellant timely filed a motion for new trial, which was overruled by operation of 
6

law. (CR 196). Although appeal to this Court is automatic, the appellant timely 

filed notice of appeal. (CR 197). Art. 37.071(h), V.A.C.C.P. 

STATEMENT REGARDING ORAL ARGUMENT

The issues presented in this case are not issues of first impression but 

involve the application of facts to well-settled law. Thus, the State does not 

request oral argument in this case, as it would not significantly aid the Court in the 

resolution of the issues presented in this appeal.

STATEMENT OF FACTS FROM GUILT/INNOCENCE

Facts	of	this	Capital	Murder	Committed	at	an	Austin	Walmart

In the early hours1 of April 6, 2012, Walmart employee Sean McCarthy 

encountered appellant2 while restocking water in the store. (RR 18: 21). Appellant 

asked McCarthy to hold his produce bags, and appellant left the store to obtain 

something. (RR 18: 22-24). Appellant looked “like he had a rough night,” but 

McCarthy did not feel threatened by him. (RR 18: 23). Walmart retail manager 

Lincoln LeMere called 3113 because appellant appeared intoxicated, and LeMere 

feared he would be a danger to himself and others. (RR 18: 54). 

 1 The time was approximately midnight to 1 a.m. (RR 18: 24).

2 McCarthy identified appellant in the courtroom. (RR 18: 32-34).

3 The call was transferred to 911. (RR 18: 54).
7

Austin Police Officer Jaime Padron responded to the call, and he and 

LeMere entered the store and encountered appellant. (RR 18: 58-59, 177, 179). 

Officer Padron announced that he was with the Austin Police Department and told 

appellant to stop. (RR 18: 59-60, 132). Appellant lowered his shoulder, ducked 

away from Officer Padron, and ran for the exit. (RR 18: 59). Officer Padron gave 

chase and tackled appellant from behind. (RR 18: 60). Walmart employee Monica 

Lawson saw appellant pull a gun from his waistband as Officer Padron attempted 

to subdue appellant and take his gun. (RR 18: 95-96). As Officer Padron tackled 

appellant, LeMere heard a gunshot, and he heard an additional gunshot when 

appellant and Officer Padron fell to the ground. (RR 18: 60-61, 63). Lawson’s coworker, Alma Ramirez, testified that she saw appellant put the gun to Officer 

Padron’s neck and shoot him. (RR 18: 119-120). 

LeMere realized appellant had a gun when he saw Officer Padron “bleeding 

out.” (RR 18: 61). LeMere immediately jumped on appellant who raised his arm 

and fired a third shot, which just missed LeMere’s right ear and night manager 

Archie Jordy’s left ear.4 (RR 18: 61, 133-134). LeMere felt that that third shot 

was meant for him. (RR 18: 62).

 4 Jordy had followed appellant through the store because he suspected he was going to shoplift, 

but appellant did not appear armed. (RR 18: 56, 129, 153).
8

LeMere pushed appellant’s arm to the ground, and McCarthy and Jordy 

stomped on appellant’s arm, making him release the gun, and kicked the gun aside. 

(RR 18: 62). Appellant raised his head from the floor, looked at Officer Padron, 

“kind of laughed, chuckled and said, I killed a cop.” (RR 18: 64, 151). Officer 

Padron never pulled a weapon of any kind when chasing appellant. (RR 18: 98).

It was obvious to the various Walmart employees5 that Padron was a police 

officer because of his uniform, “all the gadgets,” and his apparent fitness. (RR 18: 

38). Officer Padron was wearing a full Austin Police Department uniform. (RR 

18: 38, 56). Officer Padron had not removed his gun from his gun belt. (RR 18: 

64). The security hood on Officer Padron’s holster was still in the locked position 

with his gun inside the holster. (RR 18: 204-205). 

Walmart employees tried to keep Officer Padron alive while police arrived 

at the scene and handcuffed appellant. (RR 18: 35). Will Garlow removed his 

shirt and applied pressure to Officer Padron’s neck until the squirting blood 

stopped. (RR 18: 166-167). Garlow talked to Officer Padron and attempted to 

keep him awake. But, Officer Padron never responded verbally, and he barely 

focused his eyes. (RR 18: 166, 167-168). Garlow and Austin police officer Chris 

Kroger attempted to clear Officer Padron’s airway, but it was too late, as Officer 

 5 Walmart employees Monica Lawson, Alma Ramirez, and William Garlow all immediately 

recognized that Officer Padron was a police officer because of his uniform and badge. (RR 18: 

94, 118-119, 162). Austin police officer Steve Martinez was in full uniform during trial and 

displayed it for the jury since Officer Padron had worn the same type uniform. (RR 18: 217).
9

Padron had bled out. (RR 18: 167, 181). EMS pronounced Officer Padron dead at 

the scene. (RR 18: 205).

Evidence	Recovered	After	Appellant	Taken	into	Custody

Austin police officers removed appellant from the Walmart and searched 

him for additional weapons. (RR 18: 235). Police found a magazine with six .380 

hollow point bullets6 in appellant’s pocket. (RR 19: 34). Homicide Detective

Brett Bailey collected the appellant’s firearm at the scene.7 (RR 19: 64). The 

firearm, a Jimenez Arms .380, still contained the magazine in the grip of the 

weapon. (RR 19: 65; SX49). The firearm had one live .380 cartridge in the 

chamber and one in the magazine. (RR 19: 65-66; SX27). Thus, when Detective 

Bailey found the firearm, it was capable of firing two more rounds. (RR 19: 66). 

Firearms examination determined that the three casings found at the scene had all 

been fired from appellant’s gun. (RR 20: 145-146). 

Police also searched the backpack appellant had with him and found Reese’s 

Peanut Butter ice cream bars, Little Debbie Oatmeal Crème Pies, three bags of 

peanuts, filet mignon steaks, beef jerky, Hostess CupCakes, and two bottles of 

 6 Detective Bailey testified that hollow point bullets typically cause more damage upon impact 

than lead ball ammunition. (RR 19: 62).

7 State’s exhibit 62 reflected appellant purchased this weapon on February 23, 2009, in Fort 

Collins, Colorado. (RR 20: 60-61). State’s exhibit 62 was admitted into evidence without 

objection. (RR 20: 60).
10

Korbel Champagne. (RR 18: 235; RR 22: 57). Appellant had killed Officer 

Padron over $56.90 worth of shoplifted items. (RR 22: 62; SX78).8

Upon being taken into custody, appellant asked Austin police officer Albert

Arevalo9 questions regarding the county of the offense, the relative leniency of 

Travis County versus Williamson County, and if he would get life or death for 

what he had done. (RR 18: 245). Appellant winked and smiled at Officer Arevalo 

as he put him in a patrol car. (RR 18: 243). Officer Arevalo noticed that appellant 

had red, watery eyes and slurred speech and seemed sleepy. (RR 18: 248). Yet, 

appellant was alert and oriented according to EMS protocol and politely answered 

questions. (RR 18: 222). Appellant confirmed that he had no injuries or medical 

problems, although he did have “blow back” blood on his face from Officer 

Padron’s fatal injury. (RR 18: 222; RR 19: 37-38; SX7). Appellant also told EMS 

technicians that he had not consumed any alcohol or drugs. (RR 18: 222). 

Appellant asked EMS technician Christopher Lester if he was going to get life in 

prison for “this.” (RR 18: 223). Appellant showed no emotion; he was “very 

blank, very cold.” (RR 18: 224). 

 8 The evidence of the specific food items and the total coast thereof was admitted at the 

punishment phase. (RR 22: 57, 62).

9 Officer Arevalo spelled his name for the court reporter as “Arevalo,” but it is recorded in the 

record as “Arevelo.” (RR 18: 238). The State uses the spelling of the name as dictated into the 

record by the officer. 
11

During transport to police headquarters, appellant talked to himself and 

made a comment about “blasting” one of the officers in the car. (RR 19: 39, 45; 

SX15). At headquarters, appellant saw an old police department motorcycle that 

he thought was cool, and he spontaneously admitted “I killed a cop.” (RR 18: 248-

249; RR 19: 113). Appellant spoke matter of factly, without emotion. (RR 19: 

114). Later, when a nurse drew appellant’s blood pursuant to a warrant at the 

Travis County Jail, appellant chuckled, looked at his hands, and said “I guess I got 

that cop’s blood on my hands.” (RR 19: 98-99). Appellant, indeed, had blood on 

his hands. (RR 19: 98).

Appellant waived his Miranda rights and spoke with police. (RR 19: 117-

118). The State played appellant’s recorded interrogation for the jury. (RR 19: 

142; SX59). Appellant appeared cognizant of his actions, used appropriate 

terminology, and did not present any indication of mental illness or lack of mental 

fitness. (RR 19: 119). Appellant admitted to have recently taken Xanax, but he did 

not seem intoxicated. (RR 19: 120). Appellant knew every single detail involving 

his murder of Officer Padron, including that he held his gun against Officer 

Padron’s skin. (RR 19: 131; RR 20: 57). He knew that he shot an Austin Police 

Officer, and he admitted numerous times that he was the one who shot Officer 

Padron. (RR 20: 57). 
12

Forensic	Evidence

DNA testing confirmed the presence of Officer Padron’s DNA profile on 

appellant’s right hand. (RR 20: 84). Forensic testing of appellant’s blood showed 

no alcohol in his blood but revealed a high level of alprazolam (aka Xanax) and 

marijuana. (RR 20: 89, 93-94, 100). Text messages recovered from appellant’s 

cell phone revealed that on April 4, 2012, appellant arranged for the purchase of 

eight bars of Xanax and that, the next day, he increased that purchase request to ten 

bars. (RR 20: 24). Police executed a search warrant on appellant’s apartment and 

discovered sticky notes reading “stop fucking yourself up” and “when I rise to 

power, you will be sterilized.” (RR 20: 29-30, 32). 

Evidence	from	Officer	Padron’s	Autopsy

Officer Padron suffered a gunshot wound to his neck, with the entrance 

wound under the left side of his neck (SX65) and the exit wound in the back right 

of his neck (SX66). (RR 20: 111). This gunshot travelled through Officer 

Padron’s voice box, fractured his fifth cervical vertebra (neck bone), and damaged 

two arteries that carried blood to his brain. (RR 20: 113). This gunshot created a 

large tear in the right common carotid artery and tore apart the vertebral artery. 
13

(RR 20: 113-114). The gunshot injuries to these arteries caused rapid 

hemorrhaging and were fatal.10 (RR 20: 116-118). 

Black gunpowder soot encircled the entrance wound on Officer Padron’s 

neck, confirming appellant placed the gun against his skin when he fired. (RR 20: 

122). The muzzle of the gun actually made contact with Officer Padron’s skin, 

leaving a muzzle imprint. (RR 20: 123). The medical examiner had no doubt that 

appellant pressed the gun barrel up against Officer Padron’s neck when he shot 

him. (RR 20: 124). The overall path of the bullet was front to back and to the 

right. (RR 20: 114). 

Appellant had also shot Officer Padron in the chest through the right breast 

pocket of his uniform. (RR 20: 112). But, Officer Padron had been wearing an 

armored vest so he did not suffer any damage to his body from this gunshot. (RR 

20: 112). Firearms examination revealed that the distance of the gun’s muzzle to 

Officer Padron’s uniform was less than 14 inches. (RR 20: 149). 

Officer	Padron’s	Personal	and	Professional	Background

Officer Padron grew up near San Angelo, Texas. (RR 20: 170). After 

graduating high school in 1989, he joined the Marines and did a tour in Desert 

Storm, the first Gulf War. (RR 20: 170-171). He received many commendations 

 10 The medical examiner confirmed that hollow point bullets cause more damage to a person’s 

body than lead filled bullets. (RR 20: 116). 
14

while in the Marines and an honorable discharge. (RR 20: 171). After serving 

four years in the Marines, Officer Padron became a corrections officer and then a 

police officer, fulfilling a life-long dream. (RR 20: 172). 

Officer Padron was a servant in his church, in his community, and for his 

country. (RR 20: 172). Officer Padron served 14 years with the City of San 

Angelo Police Department and became a detective. (RR 20: 173). He also worked 

with middle school students in San Angelo and had a positive impact on their lives, 

leading students to become Marines or police officers. (RR 20: 173-174). 

Supporting his wife’s career choice, Officer Padron moved to Austin with 

his family. (RR 20: 175). He became a patrol officer with the Austin Police 

Department, and he was very happy. (RR 20: 175). Officer Padron’s brother had

offered him a more lucrative job in San Angelo, but Officer Padron declined it 

because he loved being a police officer and being in Austin with his two young 

daughters. (RR 20: 176). 

At the time of his murder, Officer Padron was planning his life with a new 

girlfriend. (RR 20: 178). He and his girlfriend were looking for a home with 

property for horses, which he loved. (RR 20: 178). But, the “world turned to a 

very ugly place” for the Padron family the day their son and brother was killed. 

(RR 20: 181). After a funeral in Austin, the family took Officer Padron back home 
15

to San Angelo. (RR 20: 181). The City of San Angelo dedicated a park in Officer 

Padron’s honor. (RR 20: 181-182). 

Defense	Evidence	at	Guilt/Innocence

Jenna Feland dated appellant from July of 2008, till December of 2011, 

when he ended the relationship. (RR 20: 185). Appellant used drugs while the 

couple lived in Colorado, mostly using marijuana, but he also did mushrooms, 

acid, and Ecstasy. (RR 20: 189-190). In fact, appellant took Ecstasy daily. (RR 

20: 190). 

Feland claimed that appellant did not do well after their break up, and 

appellant told Feland he was really sad and “in a downward spiral.” (RR 20: 12). 

Appellant started drinking and taking Xanax. (RR 20: 193). Despite the alleged 

downward spiral, appellant had a new girlfriend, Nikki Nance, that same 

December, and he and Feland barely had contact prior to this offense. (RR 20: 

206, 231-232). 

Feland confirmed that appellant did not have a mental illness. (RR 20: 207). 

By impeaching Feland with her grand jury testimony, the State established that 

appellant was not generally a depressed person and that Feland was not aware of 

appellant having mental problems. (RR 20: 228, 234). Feland described appellant 

as a quiet and reserved person who got depressed when he got in trouble. (RR 20: 

234-235).
16

On cross-examination, the State also established that Feland and appellant 

discussed him selling his story for $100,000, although she denied it at trial. (RR 

20: 200). State’s exhibit 71, a videotaped recording of Feland visiting appellant in 

jail on April 24, 2012, showed appellant had the idea to sell his story of this capital 

murder, and Feland laughed throughout the video. (RR 20: 214; RR 23: 76). 

Also, while in jail, appellant created a secret code so that he and Feland could 

communicate without law enforcement understanding what they had written. (RR 

20: 215). 

Dr. Matthew Masters, an addiction medicine practitioner, reviewed multiple 

evidentiary items from the defense in preparation for his trial testimony. (RR 21: 

18). Dr. Masters testified that Xanax was a highly addictive drug and the number 

one benzodiazepine on the street because it was fast-acting. (RR 21: 5, 11-12). Dr. 

Masters observed appellant on the crime scene video at Walmart, and the manner 

in which appellant exited his motorcycle was consistent with a person intoxicated 

by a benzodiazepine. (RR 21: 19). The SWIFS lab report showed appellant had 

toxic levels of alprazolam in his system seven hours after his arrest, and his 

toxicity level was consistent with having taken 8 to 10 Xanax pills. (RR 21: 20-

21). Thus, Dr. Masters opined that appellant’s statement to police the night of the 

offense was totally unreliable due to confabulation. (RR 21: 23-24). Dr. Masters 
17

described appellant as an addict based on his history, his behavior, and his lab 

reports. (RR 21: 27). 

On cross-examination, Dr. Masters confirmed that prior to April 2012 he had 

not treated appellant or seen him in a professional manner. (RR 21: 33). Dr. 

Masters conducted only a diagnostic evaluation based on what appellant told him, 

what the defense provided him, and the grand jury testimony of appellant’s new 

girlfriend. (RR 21: 33). Dr. Masters did not consult any members of appellant’s 

family or a psychiatrist appellant had previously seen11, and Dr. Masters was not a 

psychiatrist. (RR 21: 34). Dr. Masters had not seen the crime scene videotape to 

know that appellant’s statement to police was consistent with that tape, thus 

undermining his opinion that appellant’s statement was due to confabulation. (RR 

21: 38). Appellant’s statement in the police car that he killed a police officer also 

rebutted Dr. Masters’ assessment of confabulation. (RR 21: 38-39).

After approximately one hour of deliberations, the jury found appellant 

guilty of capital murder as alleged in the indictment. (RR 21: 99, 101).

 11 At punishment it was revealed that appellant self-reported that he had seen a psychiatrist in 

sixth grade, but there was no evidence of the alleged doctor’s name or a diagnosis. (RR 24: 155-

156).
18

STATEMENT OF FACTS FROM PUNISHMENT PHASE

The	Night	of	this	Capital	Murder	Offense

Appellant and his roommate Kelvin Davis12 drank and smoked marijuana 

the night leading to the murder of Officer Padron. (RR 22: 123). Appellant drank 

tequila, at least a half a liter of it, and Davis drank rum. (RR 22: 124, 145-146). 

Appellant also took Xanax; in fact, he took approximately six pills, more than 

Davis thought appellant could handle. (RR 22: 125). That evening, Davis and 

appellant walked to a nearby convenience store, and appellant talked about robbing 

the store. (RR 22: 127-128). Davis tried to downplay appellant’s idea to rob the 

store because appellant didn’t need any further legal troubles. (RR 22: 128). 

Appellant responded that he had gotten “away with worse shit.” (RR 22: 128-129). 

Lack	of	Remorse	and	Extraneous	Bad	Acts	in	Texas

Officer Cory Knop transported appellant from the Walmart to the Austin 

Police Department that fateful day. (RR 22: 18). Appellant nonchalantly admitted 

that he killed a cop. (RR 22: 19). Appellant also asked Officer Knop if he 

remembered him, which Officer Knop did. Officer Knop met appellant February 

2, 2012, when he arrested him for driving while intoxicated. (RR 22: 19-20). 

Officer Knop conducted field sobriety tests on appellant and transported him to 

 12 In January of 2012, Davis searched for a roommate in Austin on Craigslist and found 

appellant. (RR 22: 116).
19

jail, all of which was videotaped. (RR 22: 21; SX72). During the DWI encounter, 

appellant volunteered that he had worked multiple times as an informant for the 

police in Colorado. (RR 22: 27). Appellant asked Officer Knop not to impound 

his vehicle and if there were anything he could do to help appellant with the 

charges. (RR 22: 28). Appellant pleaded that he was a productive member of 

society and not a bad guy. (RR 22: 28-29). Appellant asked Officer Knop if he 

thought the arrest was right and if he ever felt bad or if he had done the wrong 

thing. (RR 22: 29-30). Appellant was polite and did not seem threatening to 

Officer Knop. (RR 22: 22-23). But, appellant was also polite the night he 

murdered Officer Padron. (RR 22: 23). 

About five weeks earlier, on December 27, 2011, DPS Trooper Charles 

Hoover stopped appellant for speeding on a highway between Amarillo and 

Lubbock. (RR 22: 167-168). The odor of marijuana from appellant’s vehicle was 

quite strong, and Trooper Hoover found marijuana in appellant’s vehicle and 

arrested him. (RR 22: 169, 171). Trooper Hoover seized from appellant’s vehicle 

a grinder, marijuana pipe, and three pill bottles for prescription marijuana from 

Colorado that were not in appellant’s name. (RR 22: 174-175; SX81, 82). 

Videotaped evidence from this arrest showed appellant was very compliant with 

the officer and stated that he wanted to be a productive member of society. (RR 

22: 168-169, 173; SX80).
20

Austin Police Detective Roy Rector was a certified forensics examiner, and

he analyzed evidence from two computers seized after appellant’s arrest for 

murdering Officer Padron. (RR 22: 44). Rector retrieved four photographs 

(SX73-76) from the logical path Users\danielbra\documents\MY 

BACKUP\JENNA BACKUP\Pictures. (RR 22: 45-48). The file was created May, 

26, 2011, but the pictures were taken in March and May of 2009, all by the same 

camera. (RR 22: 46-47). The pictures (SX 73-76) were of appellant’s tattooed 

arm holding a gun and of a bullet hole in a wall. (RR 22: 45, 47; RR 23: 72; 

SX83). Nikki Nance had seen appellant’s gun approximately ten times; appellant 

thought having a gun looked “cool.” (RR 22: 95-96). Appellant also bragged to 

Nance that he would drive really fast on his motorcycle and that he had outrun the 

police in Colorado. (RR 22: 97). 

Kristina “Nikki” Nance testified for the State with a testimonial immunity 

agreement. (RR 22: 87). In late 2011 or early 2012, appellant met Nance through 

a posting on Craigslist. (RR 22: 89). They used lots of drugs, to-wit: Xanax, 

cocaine, acid, mushrooms, and Ecstasy, most of which appellant purchased for 

them. (RR 22: 90-91). As Nance’s and appellant’s relationship continued, their 

drug usage increased. (RR 22: 101-102). Appellant began using heavier drugs and 

mixing them. (RR 22: 102). Nance recalled a time when appellant wanted to find 
21

an “eight ball” of cocaine. (RR 22: 92). Appellant tried to get his roommate Davis

to do cocaine, but he refused. (RR 22: 119-120). 

Nance’s and appellant’s friendship ended when she fronted him $600 to 

purchase drugs, and he never paid her back even though he made a lot more money 

than Nance did and made her late on her rent. (RR 22: 93-94, 95). Appellant once 

told Davis that he would kill Nikki Nance if she damaged his car. (RR 22: 132). 

Yet, appellant did not seem psychotic or violent to Davis, even when appellant 

used drugs. (RR 22: 132-133). 

Appellant seemed intelligent to Davis. (RR 22: 132). Appellant never 

discussed any family issues with his mother or father and never lamented a bad 

childhood. (RR 22: 133). Appellant told Davis about outrunning the police on his 

motorcycle. (RR 22: 129). 

While in the Del Valle jail after his arrest for this capital murder, appellant 

met inmate Luis Escalante because Escalante was curious about the jail uniform13

appellant was wearing. (RR 23: 33). Appellant asked Escalante if he had seen the 

person on the news who had killed the cop at Walmart. (RR 23: 34). Appellant 

showed Escalante a picture of himself from the newspaper, and appellant smirked 

and chuckled about the killing. (RR 23: 35). Escalante asked appellant if he had 

 13 Escalante explained that persons wearing the orange and white stripes are “high felons,” 

persons who committed aggravated crimes or murders. (RR 23: 33).
22

any remorse for the killing or sympathy for his victim, and appellant shook his 

head “no.” (RR 23: 36). 

Appellant admitted to Escalante that he grabbed Officer Padron by the neck 

and shot him and that he fired several times. (RR 23: 52-53). Appellant claimed 

he went to Walmart to get pills “to get his mind right.” (RR 23: 53). He had 

planned to rob the Walmart pharmacy but not harm the police officer. (RR 23: 54). 

Appellant also told Escalante that Officer Padron told him he was taking him in 

because he was intoxicated. (RR 23: 54-55). 

Extraneous	Bad	Acts	Committed	in	Colorado

On January 25, 2007, Shawn Wycoff of the Colorado State Patrol clocked 

appellant going 80 m.p.h. in a 55 m.p.h. speed zone on his “highlighter green” 

motorcycle. (RR 23: 8-9. 11). Wycoff attempted to pull over appellant for 

speeding, but appellant accelerated and fled, making numerous lane changes and 

reaching speeds of 90-95 m.p.h. (RR 23: 9, 14). Wycoff radioed another trooper 

for assistance who was able to stop appellant. (RR 23: 10-11). Appellant 

presented his driver’s license for identification, but he did not have an endorsement 

allowing him to drive a motorcycle. (RR 23: 11). The trooper arrested appellant 

for improper endorsement on his license, eluding a police officer, and possession 

of marijuana, which the trooper found in appellant’s pants pocket. (RR 23: 12-13). 

Appellant admitted that he was out joyriding, racing a friend on the interstate, and 
23

he fled from police because he didn’t want to get caught, lose his license, or lose 

his motorcycle, which was without plates. (RR 23: 12). 

In April of 2012, Caresa Marino, a patrol officer in Cheyenne, Wyoming, 

saw a news report about appellant killing Officer Padron. (RR 23: 19-20). 

Marino’s immediate reaction was “wow, I know that kid. He threatened me in the 

sixth grade.” (RR 23: 20). Marino was not surprised to see appellant on the news. 

(RR 23: 20).

Marino and appellant attended school together in Parker, Colorado. (RR 23: 

21). In November of 1999, appellant threatened Marino when she was playing 

soccer with her friends at recess. (RR 23: 22, 24). Totally unprovoked, appellant 

ran up to Marino, told her to lock her doors and windows because he was going to 

go to her house and rape her. (RR 23: 22). Appellant also called Marino a “bitch” 

and a “fucker.” (RR 23: 22). Appellant and his friends claimed he was just joking, 

but Marino did not find it funny. (RR 23: 27, 28). 

Extraneous	Bad	Acts	and	Disciplinary	Violations	in	Jail

On May 20, 2012, appellant reported to corrections officer Farial Garrie in 

the maximum security section of the Del Valle jail that he had found a bunch of 

green and orange pills in the jail dayroom and that he had taken them in a suicide 

attempt. (RR 22: 149-151). Appellant was transported to Brackenridge Hospital 

for the apparent suicide attempt. (RR 23: 74). The physician’s summary reflected 
24

that appellant claimed to have taken a bag of pills he found taped under a chair. 

(RR 23: 74; SX84). The records further reflected that appellant decompensated in 

the emergency room and required intubation and mechanical ventilation. (RR 23: 

75). But, appellant’s urine and serum drug screens were negative. (RR 23: 75).14 

Furthermore, corrections officers had searched the dayroom before allowing 

inmates into it, and they had not found any pills. (RR 22: 152-153). 

Corrections officers searched appellant’s cell thereafter and found a strip of 

paper with a key to decipher coded messages from appellant. (RR 22: 162-163). 

Corrections officers found further evidence that appellant intended to bypass jail 

security by sending the coded paper to his mother through correspondence to his 

attorney. (RR 22: 163). 

In June of 2012, appellant was housed in a psychiatric observation cell in the 

Del Valle jail. (RR 22: 64). On June 3, 2012, corrections officer Dustin Rade 

searched appellant’s cell for contraband and found hooch, ingredients for an 

intoxicating beverage, hidden behind the toilet. (RR 22: 65-66). Appellant 

violated jail rules by possessing the hooch. (RR 22: 67). Officer Rade again found 

contraband items in appellant’s cell on August 17, 2012. (RR 22: 68). Officer 

Rade found six pills hidden in the window ledge. (RR 22: 68-69). Appellant 

 14 During the defense presentation of evidence at the punishment phase, Dr. Harold Scott 

testified that, from his review of appellant’s medical records, he believed appellant took an 

overdose of Haloperidol, an antipsychotic drug. (RR 25: 168, 173). Haloperidol was the generic 

version of Haldol, the most common psychological drug in an institutional setting. (RR 25: 168, 

173). Dr. Scott testified that the hospital did not screen for Haldol. (RR 25: 172). 
25

violated jail rules by possessing the pills, which could only be prescribed by 

medical staff. (RR 22: 70). Appellant also kept in his cell a list with the jailers’ 

names and their routines and activities. The list of names contained various 

descriptions of the officers, e.g., appellant said Officer Rade “equals the devil.” 

(RR 22: 81-82). 

In October of 2012, Escalante encountered appellant having a secret talk 

with another inmate, Troy Williams, who was housed across from appellant. (RR 

23: 36-37, 67). Appellant and Williams admitted to Escalante that they were 

planning an escape when appellant was transported for his court hearing in January 

of 2013. (RR 23: 36-37, 67). Escalante actually overheard them discussing escape 

plans on two different occasions. (RR 23: 38). Williams explained to Escalante 

that appellant planned for someone to come to the jail with a gun and start shooting 

corrections officers. (RR 23: 37, 38). The day before Escalante testified in this 

trial, he overheard appellant telling another inmate that Escalante was not 

trustworthy and was a “snitch.” (RR 23: 39).

On August 6, 2013, Travis County Sheriff’s Deputy Donald MacIntyre 

heard a commotion and applause coming from the dayroom. (RR 23: 196). He 

looked into the dayroom and saw appellant taking a bow among the inmates. (RR 

23: 196). The inmates had just watched a news story on the television regarding 

appellant and a court hearing in this capital murder. (RR 23: 196-197). After 
26

appellant took his bow, an inmate yelled “fuck the police,” and appellant 

acknowledged that inmate by raising his fist in the air. (RR 23: 202). A camera in 

the jail captured this event, and the video of it (SX97) was played for the jury. (RR 

23: 204). 

Appellant’s	Mail	and	Recorded	Phone	Conversations in	Jail

Due to the report that appellant planned to overtake a corrections officer to 

escape, Austin Police Detective David Fugitt realized that he needed to check 

appellant’s phone calls daily for the officers’ safety. (RR 23: 83-84). Detective 

Fugitt listened to approximately 16 hours of appellant’s recorded phone 

conversations. (RR 23: 84). Fugitt also read appellant’s mail and emails and 

watched video of his visitations. (RR 23: 84). Appellant never expressed remorse 

for killing Officer Padron in any of those communications. (RR 23: 84). His only 

expression of remorse came during his interrogation, and it was initially in regard 

to himself. (RR 23: 84). 

The State played SX85, a phone conversation between appellant and his 

mother recorded on April 25, 2012, while appellant was in jail. (RR 23: 76-77). 

Appellant told his mother that he had been sent to the health services building in 

the jail for being depressed. (RR 23: 77). But, he disagreed with the depression 

diagnosis because he was joking about being depressed or committing suicide. 

(RR 23: 77). Appellant also wrote his sister after a hospital visit. (RR 23: 114; 
27

SX91). Appellant wrote that he was put in the hospital after he joked about no 

sharp objects and called jail officials “stupid.” (RR 23: 114). 

On March 10, 2013, appellant had another recorded phone conversation with 

his mother. (RR 23: 79; SX86). In that conversation, appellant gave his mother a 

code for a secret alphabet so they could bypass security at the jail in regard to their 

mail. (RR 23: 79). Appellant had drawn an image of an alien utilizing a shading 

technique where the letters of the alphabet were written inside the image. (RR 23: 

79-80). Appellant called his mother again on March 31, 2013, and discussed 

murderabilia. (RR 23: 81). In another phone conversation with his mother, 

appellant said an inmate offered him $30 for his artwork, the most money he knew 

of being offered for artwork. (RR 23: 101). So, appellant made a copy of the 

artwork to sell “just for the bragging rights.” (RR 23: 101-102).

 Anthony Angel, with the Travis County Sheriff’s Office security threat unit, 

copied appellant’s mail at the request of Detective Fugitt. (RR 23: 106). 

Appellant primarily wrote letters to his mother, sister, and Feland. (RR 23: 110). 

His mother set up a pen pal account for him on meet-an-inmate.com, and he asked 

her to make his profile sound “more bad” because people might be looking for 

someone “more criminal-ish.” (RR 23: 112). Appellant wrote his mother that he 

was at the top of the prison pecking order in relation to crimes committed. (RR 23: 

113; SX90). In letters to Feland, appellant said he did not like being in the general 
28

prison population because he didn’t particularly get along with inmates or cops 

because they were “not [his] type of people.” (RR 23: 115). Appellant reminded 

Feland to allow him to run the defense and to not talk to anyone on his legal team 

because “they [were] only out for themselves.” (RR 23: 116; SX93). In another 

letter, appellant told Feland “not much else going on. Just living the dream. I’m 

retired at 25.” (RR 23: 118; SX95). He added a smiley face. (RR 23: 118).

According to Deputy Angel, coded mail presented security concerns 

regarding escape plans or attacks on officers or other inmates. (RR 23: 107). 

Inmates who kept notes on the movements of guards in the jail also presented 

security concerns regarding escape attempts or assaults on staff. (RR 23: 107).

Inmate	Classification	System	and	Prison	“Society”

Stephen Rogers, a retired warden and corrections officer, testified regarding 

the prison classification system for inmates. A person sentenced to life without 

parole was classified as a G3 and was in the general population. (RR 23: 134). A 

G3 classified inmate had all the privileges15 of a minimum security G2 inmate 

except that he could not be housed in a dormitory outside the prison but within the 

outer fence. (RR 23: 135). The G3 inmate had the same contact with prison staff 

and volunteers as a G2 and went to chow and walked the hallways without 

handcuffs. (RR 23: 136). The prison provided food, beds, and television to the 

 15 These privileges included contact visits and commissary eligibility. (RR 23: 135).
29

prisoner; radios were available for purchase in the commissary. (RR 23: 190). 

Prisoners in the general population were allowed to make phone calls, receive 

emails, and have contact with family members. (RR 23: 160, 191). Yet, prisoners 

in the general population sometimes attacked, caused serious bodily injury, and/or 

killed prison guards. (RR 23: 191). On the other hand, a prisoner under a death 

sentence was classified like an administrative segregation prisoner, i.e., he was 

confined to his cell 23 hours a day and allowed one hour for recreation. (RR 23: 

138). 

Rogers discussed the problem with inmates making weapons in prison with 

some prisoners smart enough to make weapons out of “just about anything[.]” (RR 

23: 148-154). And, if a prisoner couldn’t make a weapon, he had the opportunity 

to obtain one from another inmate. (RR 23: 154). And, prisoners had access to 

dangerous items through prison industry. (RR 23: 155).

Prisoners also found ways to access contraband, with cell phones being the 

foremost problem.16 (RR 23: 157). Prisoners often used cell phones to contact 

their victims or persons who testified against them. (RR 23: 157). Drugs were 

likewise a problem in the prison system and easier to smuggle than cell phones. 

 16 One prisoner even managed to access Rogers’ Facebook account even though he was in 

permanent lockup. (RR 23: 157).
30

(RR 23: 158). Many prisoners were adept at making alcoholic beverages, called 

hooch or chalk. (RR 23: 158-159). 

As a warden, Rogers would have concerns with an inmate who attempted to 

communicate with people outside of prison through coded mail. (RR 23: 159). 

Such a prisoner presented a threat to correctional officers, other inmates, and even 

the public. (RR 23: 160-161). Rogers would also have security concerns about a 

prisoner who tracked the activities of correctional officers. (RR 23: 161). 

Prisoners inclined to commit acts of violence would have opportunities to commit 

acts of violence or kill while in prison. (RR 23: 164). And, prisoners who had 

animus toward police officers would have opportunities in prison to hurt them. 

(RR 23: 164). 

Officer	Padron’s	Personal	and	Professional	History

Officer Padron’s older sister, Linda Diaz, testified that Officer Padron 

enlisted in the Marine Corps when he was just 17 years old and still in high school. 

(RR 23: 210). After service with the Marines, Officer Padron worked as a 

corrections officer, first for the Eden Detention Center and then the San Angelo 

Police Department. (RR 23: 210). Officer Padron moved to Austin and became 

employed with the airport police and then transferred to the Austin Police 

Department. (RR 23: 210-211). Killed at age 40, Officer Padron had given more 
31

than half his life serving his country and his community and protecting the public. 

(RR 23: 211).

Diaz described her brother as a very honorable man of integrity and 

commitment. (RR 23: 211). She described Officer Padron’s first act of bravery as 

a rookie police officer when he twice ran into a burning building to save victims. 

First, he attempted to save two children, and then he ran back into the house to 

save a fellow officer who had not emerged from the burning home. (RR 23: 212). 

Although divorced, Officer Padron was a dedicated father to his two young 

daughters, aged 6 and 10 at the time of his death. (RR 23: 212). He was even 

involved in their school because he loved being around children. (RR 23: 213).

While working full-time for the San Angelo Police Department, Officer 

Padron continued his education, earning degrees in psychology and criminal 

justice. (RR 23: 213). He graduated with honors. (RR 23: 213). And, Officer 

Padron had a positive impact on his nieces and nephews. (RR 23: 213). One 

nephew was following in his footsteps and had enlisted in the Marines. (RR 23: 

213).

Officer Padron was “very caring” and “very loving.” (RR 23: 214). His 

daughters missed their “tremendous daddy” time. (RR 23: 214). Officer Padron 

was also very close to his parents, especially his father who was not in very good 

health. (RR 23: 214). Officer Padron’s parents and siblings attended the trial, and 
32

having to hear the testimony was “horrifying” and “almost unbearable.” (RR 23: 

214). Diaz could see her parents’ pain every day and testified that “no parent 

should have to go through this” and “[h]is little girls shouldn’t have to go through 

their life without their father.” (RR 23: 214). 

Defense	Evidence	at	the	Punishment	Phase

Travis County corrections officer Richard Low had contact with appellant 

during his two-year time in the health services building. (RR 24: 10). Deputy Low 

described appellant as compliant and respectful to him. (RR 24: 11). But, on 

cross-examination, Deputy Low testified that an inmate was not compliant if he 

made hooch, hoarded prescription pills, or tracked the movements and activities of 

corrections officers. (RR 24: 14-15). All those activities were violations of jail 

regulations, as was sending coded messages to civilian persons through legal mail 

in the jail. (RR 24: 15). Appellant further violated jail regulations by giving 

himself a homemade tattoo. (RR 24: 39). Psychological evidence showed 

appellant was capable of following rules if he so chose, but he did not like to be 

controlled by other people. (RR 24: 127, 151).

Dr. James Ascough, employed with the USDA, testified via Skype for the 

defense. (RR 24: 43). He met the appellant through a work-study program when 

appellant was a student at Colorado State University. (RR 24: 45). Dr. Ascough 

described appellant as a very good programmer. (RR 24:49). Appellant had Dr. 
33

Ascough had co-authored a chapter in a book entitled Advances in Nitrogen 

Management for Water Quality. (RR 24: 53-54). Appellant worked with Dr. 

Ascough at the USDA for approximately 18 months, from 2009 to Christmas 2010. 

(RR 24: 56). Dr. Ascough encouraged appellant to continue working with him and 

to attend graduate school, but appellant wanted to begin working and earn money. 

(RR 24: 57-58). Appellant took the job with Hewlett-Packard in Austin, and the 

two ceased contact in early to mid 2011. (RR 24: 57-58). Dr. Ascough thought 

appellant was a quiet, hardworking, and respectful “kid,” and he was “stunned” 

when he heard about appellant killing Officer Padron. (RR 24: 59).

Cross-examination revealed that Dr. Ascough actually knew very little about 

appellant. (RR 24: 66). He did not know that appellant used marijuana and 

alcohol daily and that he regularly used cocaine, mushrooms, ecstasy, and acid 

during his college career. (RR 24: 65-66). Dr. Ascough was aware that appellant 

had a girlfriend, but he didn’t know her name. (RR 24: 65). Appellant told Dr. 

Ascough about his motorcycle, that he liked to go fast, and that he eluded police on 

it. (RR 24: 67). Appellant was not embarrassed about that. (RR 24: 67).

Dr. William Carter prepared a psychological study on appellant for the 

defense. (RR 24: 78). Dr. Carter twice interviewed appellant in 2014. (RR 24: 

83). In early adolescence, appellant began to emotionally withdraw and about age 
34

12 he fell into depression. (RR 24: 88, 91-92). Appellant began to experiment 

with drugs in middle school to escape his depression. (RR 24: 95-96). 

Appellant avoided social contact, and Dr. Carter described him as 

humorless. (RR 24: 96). As a teenager, appellant felt lonely and isolated.17 (RR 

24: 101). Dr. Carter thought appellant’s depression probably worsened into his 

teenage years, and he felt helpless and suicidal and hated his life. (RR 24: 106). 

Yet, appellant was not depressed to the point of psychosis. (RR 24: 118). A 

common theme in appellant’s life was his overstatement of his importance by 

bragging, pushing limits, or letting others know how smart he was. (RR 24: 102). 

On cross-examination, Dr. Carter confirmed that the people he interviews 

have a personal bias to present themselves in a manner in accord with their 

perceived best interest. (RR 24: 154). Dr. Carter conceded that it was possible 

appellant claimed he was depressed only after meeting with Dr. Carter and 

deciding it was to his benefit to be depressed. (RR 24: 162). But, regardless of 

one’s depression level, Dr. Carter confirmed that a person would know not to kill a 

police officer. (RR 24: 167).

Appellant’s report to Dr. Carter of his lack of friends was disputed by his 

disciplinary records from high school and college. (RR 24: 157-158). The 

 17 Cross-examination revealed that appellant had had friends with whom he played guitar and 

rode motorcycles. (RR 24: 157). These friends were apparently so well known that appellant 

told his mother in letters to use the names of these friends as clues she could insert into his codes. 

(RR 24: 157).
35

disciplinary records indicated appellant acted in concert with others in sneaking 

around the halls or out of classes, of using drugs behind Hobby Lobby with his 

motorcycle-riding friends, and for showing affection on campus to a girl. (RR 24: 

157-158). Appellant’s disciplinary records also reflected assaultive conduct by 

him. (RR 24: 159). In one incident, appellant “sucker punched” another boy in the 

locker room. (RR 24: 159). The person writing the report was concerned because 

appellant showed no remorse for the assault. (RR 24: 159). 

Dr. Carter admitted in cross-examination that appellant displayed 

manipulative and controlling behaviors before and after this capital offense. (RR 

24: 162-163). Appellant used Nikki Nance to get drugs, and he told Jenna Feland 

to not talk to anyone about him, including his lawyers, mitigator, private eye, etc. 

until he told her to. (RR 24: 162-164; SX93). 

Appellant told Dr. Carter that he went to the Walmart to steal18 and he took 

his gun with him “just in case.” (RR 24: 167). Appellant knew he shot a police 

officer, and, by the extent of the injury, he knew the officer was dead. (RR 24: 

169). Dr. Carter admitted that appellant lacked empathy. (RR 24: 164). The fact 

that appellant planned to profit from this capital murder was disturbing to one of 

his psychologists. (RR 25: 132). 

 18 Evidence showed appellant had recently received a promotion at work and earned 

approximately $65,000 to $70,000 at his job. (RR 24: 180).
36

The defense also presented Dr. Walter Harrell, a psychologist specializing in 

neuropsychology and rehabilitation psychology. (RR 24: 222). Based on 

appellant’s self-reported frontal lobe injuries,19 Dr. Harrell thought appellant had 

been struggling with depression and sadness his whole life. (RR 24: 249, 254). 

Dr. Harrell opined that appellant’s multiple concussive events20 predisposed him to 

have struggles with depression, suicidal idealization, and substance abuse. (RR 

25:98). Dr. Harrell claimed appellant had a substance abuse disorder that had 

been evident since third grade. (RR 24: 255). This testimony, however, was also 

based on appellant’s self-report that he began drinking alcohol and smoking 

marijuana in third grade; appellant also claimed he did cocaine with his father. 

(RR 24: 256). 

Even Dr. Harrell reported that appellant showed a complete lack of remorse 

for killing Officer Padron.21 (RR 25: 131-132). Appellant told Dr. Harrell that he 

went to Walmart to steal groceries, that he carried a gun, was pursued by an 

 19 One such injury resulted from a skateboarding accident when appellant was 14 years old, but 

appellant’s brain scan following this accident was normal. (RR 25: 79). 

20 On cross-examination, Dr. Harrell acknowledged that appellant was very intelligent, and he 

had no difficutly communicating with him. (RR 25:82-83). He also had to acknowledge that his 

assessment of appellant’s frontal lobe injuries was merely an inference based on unsubstantiated 

reports of head injuries from appellant. (RR 25: 85-87). In one such report, appellant told Dr. 

Harrell of a head injury he sustained when he was 18 months old. Dr. Harrell admitted that at 

such a young age, appellant would not have an independent recollection of that event. (RR 25: 

85-87).

21 Appellant’s aunt, who was the County Attorney for Pottawatomie County, Kansas, testified 

that appellant had never expressed remorse for killing Officer Padron. (RR 25: 22, 60).
37

officer, and shot him. (RR 25: 102). Dr. Harrell testified that appellant struggled 

with impulse control all of his life. (RR 25: 104). But, he thought appellant’s 

killing of Officer Padron was a drug-related problem. (RR 25: 105). Appellant 

could become dangerous and commit acts of violence in prison if he was under the 

influence of alcohol or drugs. (RR 25: 111). 

Dr. Harrell further confirmed on cross-examination that no mitigating 

factors of sexual abuse, physical abuse, mental retardation, homelessness, or lack 

of food were present in this case. (RR 25: 128-129). Even though appellant 

committed various offenses as a juvenile, he never did time in the juvenile system. 

(RR 25: 130). Appellant was highly intelligent, had excelled in school, and had 

even graduated Colorado State University with honors in a highly technical field. 

(RR 25: 129). At the time of this offense, appellant had a good job with a national 

company and had no work-related issues. (RR 25: 129-130). 

Psychiatrist Dr. Harold Scott diagnosed appellant with depressive and 

addictive problems. (RR 25: 180). Dr. Scott testified appellant was highly 

addictive, having used substances since age nine to “obliterate reality” and selfmedicate for his depression. (RR 25: 208-209). Appellant used alcohol, cough 

syrup, marijuana, and computer duster (an inhalant) by age thirteen. (RR 25: 208-

209).
38

On August 26, 2012, corrections officer Stephen Crim found appellant on 

top of his bunk with his hands in the air vent. (RR 24: 199-200). Crim searched 

appellant’s cell and found torn bedsheets fastened into a noose and a three-foot 

long rope. (RR 24: 201). The noose was in the air vent. (RR 24: 201). Just 

expressing suicidal feelings would get an inmate transferred to the health services 

building in jail. (RR 24: 40). On another occasion, an inmate reported to Crim 

that he overheard appellant and another inmate discussing escape plans because 

they were tired of being in jail and wanted out. (RR 24: 203). The fellow inmate 

planned to overtake a guard, get his keys, and let appellant out of his cell. (RR 24: 

203).

State’s	Rebuttal	Evidence	at	Punishment

In appellant’s phone calls, letters, and visitation, he showed a fascination 

with major criminal events that had occurred since this capital murder. (RR 25: 

248). He often spoke of the Aurora, Colorado, movie theater shooting, the Sandy 

Hook Elementary School shooting, the Boston Marathon bombing, and the DC 

capital police shooting. (RR 25: 248-249). Appellant was intrigued with the 

number of casualties and the type of weapons used. (RR 25: 249). His mother 

once commented that she felt sorry for the shooter in the movie theater massacre in 

Colorado. (RR 25: 249). 
39

Dr. Marisa Mauro, a licensed psychologist, interviewed appellant on 

February 17, 2014, regarding his depression, family, substance abuse before, 

during, and after this offense, prognosis for recovery from depression and 

substance abuse, and his adjustment to incarceration. (RR 26: 13-15). Appellant 

provided Dr. Mauro with little information and was very emotionless. (RR 26: 

16). Dr. Mauro found no evidence of psychoses, and she disagreed with the 

diagnosis of major depression, severe and recurrent. (RR 26: 17). Dr. Mauro 

opined that appellant’s alleged suicide attempt (the taking of the pills while in jail) 

was more of a gesture, and the circumstances of that event raised questions for her 

regarding appellant’s intent of taking the pills. (RR 26: 20). After his break up 

with Feland, appellant threatened to kill himself with his gun but that was only a 

ruse to get her back. (RR 26: 24-25). 

Dr. Mauro did not believe that depression impacted appellant before, during 

or after this capital offense. (RR 26: 31). Records also indicated that appellant 

said he made the nooses to “mess with” the jail psychiatrist and to get a cell change 

to a cell with a window where he could get radio reception. (RR 26: 69). 

Appellant displayed shockingly little difficulty adjusting to jail. (RR 26: 19). He 

socialized with other inmates, engaged in daily activities with them, and even 

called them “friends.” (RR 26: 25-26, 36). 
40

Appellant told Dr. Mauro that he had a “pretty normal” childhood with 

difficult issues being his parents’ divorce, few friends, and a sometimes 

emotionally abusive mother. (RR 26:22-23). He reported to Dr. Mauro substantial 

more drug use than documented in his records. (RR 26: 28). Appellant reported 

abusing substances daily and using every classification of drug, from prescription 

pills to opium, methadone, street drugs, Ecstasy, Xanax and alcohol. (RR 26: 28). 

Despite appellant’s dependency on drugs and alcohol, he did not experience 

withdrawal symptoms while in jail. (RR 26: 29). Dr. Mauro knew from her work 

in prison systems that inmates had access to narcotics “pretty much all the time” 

and alcohol. (RR 26: 70). Dr. Mauro testified that psychiatric medications were 

valuable in prison and used for favors. (RR 26: 70).

Dr. Mauro used a psychopathy checklist to measure future dangerousness, 

but she did not use that tool in this case. (RR 26: 37). The psychopathy checklist 

defined asocial behaviors or not conforming to laws, violating the rights of others, 

having restricted or shallow ranged of affect and a lack of empathy, and being 

conning and manipulative. (RR 26: 37). 

The	Verdict	at	the	Punishment	Phase

The jury found beyond a reasonable doubt that there was a probability that 

appellant would commit criminal acts of violence and constitute a continuing threat 

to society. (RR 26: 216). The jury also found that there were not sufficient 
41

mitigating circumstances to warrant a sentence of life imprisonment rather than a 

death sentence. (RR 26: 216). Appellant requested a jury poll, which revealed the 

jury’s answers to the punishment verdict were unanimous. (RR 26: 217-218). In 

accordance with the jury’s verdict, the trial judge sentenced appellant to death by 

lethal injection. (RR 26: 221). 

SUMMARY OF THE ARGUMENTS

State’s	Reply	to	Appellant’s	First	Point	of	Error: Any rational jury could 

have found beyond a reasonable doubt that there was a probability that the 

appellant would commit criminal acts of violence constituting a continuing threat 

to society. The direct evidence of this capital murder and the circumstances 

surrounding it were highly probative of appellant’s propensity for future 

dangerousness. He entered the Walmart armed with a loaded firearm and 

magazine, clearly intending violence. When appellant’s first shot at Officer 

Padron did not injure him, appellant placed the muzzle of the gun against Officer 

Padron’s neck, fired, and killed him. Appellant also fired at the heads of Walmart 

employees who detained him. 

Furthermore, appellant never showed remorse for committing this capital 

murder. Instead, he was boastful and cavalier. Appellant gained self-worth from 

committing this offense and other criminal acts. He showed a life-long disrespect 

for law enforcement and others. He continually committed violations while in jail 
42

and planned a violent escape. Appellant’s escalating drug use and abuse was 

considered a factor in his commission of this capital murder, and appellant’s drug 

use, which made him dangerous, continued while he was incarcerated. 

The evidence in this case showed that prior to and after committing the 

capital murder of Officer Padron appellant engaged in conduct that constituted a 

threat to society. The evidence was therefore legally sufficient to sustain the jury’s 

verdict at punishment.

State’s	Reply	to	Appellant’s	Second	Point	of	Error: Appellant’s second point 

of error should be overruled because appellant did not suffer any harm from the 

trial court’s denial of his challenge for cause to venireperson Reading. The record 

reflects that appellant utilized only 14 peremptory challenges in selecting the 12 

members of the jury. Appellant utilized his fifteenth peremptory challenge to 

strike a venireperson in the pool of alternates. Appellant did not request an 

additional peremptory strike because he did not need one. He also did not identify 

an objectionable juror who sat on his jury. Under these circumstances, appellant 

failed to show he suffered any harm.

Alternatively, the trial judge did not err in denying appellant’s challenge for 

cause to venireperson Reading. The entirety of Reading’s voir dire revealed that 

he could follow the law, hold the State to its burden of proof at both phases of trial, 

and consider mitigating evidence. Although Reading viewed the death penalty as 
43

an appropriate punishment for certain murders, his voir dire reflects that he would 

not automatically assess it. The record is sufficient to sustain the trial judge’s 

ruling on appellant’s challenge for cause to Reading. Appellant’s second point of 

error should be overruled on the merits as well.

State’s	Reply	to	Appellant’s	Third	Point	of	Error: Appellant failed to 

preserve any alleged error for review. Appellant requested a hearing on Dr. 

Mauro’s qualifications, and the trial judge granted that request. Appellant 

requested to explore the basis of Dr. Mauro’s findings, and the trial judge allowed 

that inquiry. There being no adverse rulings, appellant failed to preserve any 

alleged error for review. Moreover, appellant had no objection to Dr. Mauro’s 

testimony at trial.

Additionally, the trial judge afforded appellant a proper hearing under Rule 

705(b). By its express terms, Rule 705(b) does not authorize inquiry into the 

expert’s specific findings. It allows inquiry into the underlying basis of the 

expert’s opinion, which the trial judge allowed in this case. The record reflects 

that the trial judge complied with the requisites of Rule 705(b), and appellant fails 

to show any alleged error. 

Appellant’s third point of error is wholly without merit and should be 

overruled.
44

 STATE’S REPLY TO APPELLANT’S FIRST POINT OF ERROR

The evidence	was	legally	sufficient	to	establish	that	there	is	a	

probability	that	appellant	would	commit	criminal	acts	of	violence	

and	constitute	a	continuing	threat	to	society.		

Standard and Scope of Review

When reviewing the future-dangerousness special issue, the appellate court 

views the evidence in the light most favorable to the jury’s finding and determines 

whether a rational jury could have found beyond a reasonable doubt that there is a 

probability that the appellant would commit criminal acts of violence constituting a 

continuing threat to society. Soliz v. State, 432 S.W.3d 895, 901 (Tex.Crim.App. 

2014). In this context, “society” includes both the free world and prison society. 

Id., citing Druery v. State, 225 S.W.3d 491, 507 (Tex.Crim.App. 2007). The 

Court's review is a very limited one. Chambers v. State, 903 S.W.2d 21, 25 

(Tex.Crim.App. 1995). The Court's task is to consider all of the record evidence 

and reasonable inferences therefrom in the light most favorable to the jury's verdict 

and to determine whether, based on that evidence and those inferences, a rational 

jury could have found beyond a reasonable doubt the elements of the special issue. 

Id. 

The circumstances surrounding the offense, if severe enough, may alone be 

sufficient to support an affirmative answer to the future dangerousness special 

issue. Freeman v. State, 340 S.W.3d 717, 725 (Tex.Crim.App. 2011). Prior 
45

unadjudicated acts of violence against people and property, prior adjudicated 

criminal acts, and habitual drug abuse all constitute evidence of future 

dangerousness. Soliz, 432 S.W.3d at 901, citing Wilkerson v. State, 881 S.W.2d 

321, 326 (Tex.Crim.App.), cert.denied, 513 U.S. 1060 (1994). 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 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 severity of the prior criminal acts committed by the defendant;

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.

Devoe v. State, 354 S.W.3d 457, 461-62 (Tex.Crim.App. 2011). This list is not 

exclusive. Id. at 462. Further, the circumstances of the offense and the events 

surrounding it can be among the most revealing evidence of future dangerousness. 

Bell v. State, 938 S.W.2d 35, 41 (Tex.Crim.App. 1996), cert.denied, 522 U.S. 827 

(1997). 

Application of Law to Facts

The direct evidence of this capital offense and the circumstances

surrounding it were highly probative evidence of appellant’s future dangerousness. 
46

Appellant’s actions exhibited foresight and planning. Appellant entered the 

Walmart armed with a loaded weapon and with the intent to shoplift. He took the 

loaded weapon “just in case,” clearly anticipating using violence against anyone 

who interfered with his criminal endeavor. Appellant loaded the firearm with 

hollow point bullets to cause maximum damage to his victim(s). Along with the 

loaded firearm, appellant carried a magazine loaded with additional hollow point 

bullets, indicating his willingness to shoot and possibly kill multiple victims. 

Appellant, in fact, fired his weapon multiple times. His first shot hit Officer 

Padron in his uniform pocket but did not injure Officer Padron because of his 

protective vest. Appellant then knowingly placed the gun against Officer Padron’s 

neck and fired again, killing him. As Walmart employees tried to subdue 

appellant, he fired again, almost shooting both LeMere and Jordy in their heads. 

Appellant killed Officer Padron and attempted to kill Walmart employees over a 

mere $56.90 of shoplifted groceries. (SX78).

The jury could further infer appellant’s propensity for future dangerousness 

from evidence showing a lack of remorse. Estrada v. State, 313 S.W.3d 274, 285 

(Tex.Crim.App. 2010). Appellant never expressed or showed remorse for 

committing this capital murder, and he had no sympathy for his victim. Rather, he 

was repeatedly cavalier and boastful. Appellant laughed after killing Officer 

Padron and smiled and winked at arresting officers. In jail, appellant enjoyed 
47

sharing news stories about his capital murder with fellow inmates, took a bow in 

response to their applause, and pumped his fist in response to a disparaging remark 

regarding the police. Even appellant’s own witnesses22 testified he never 

expressed remorse for this capital murder. 

Appellant’s propensity for future dangerousness was supported by evidence 

of his long-term disrespect for law enforcement. While in jail, appellant tracked 

the activities and movements of corrections officers in preparation for a violent 

escape from jail, which involved shooting law enforcement officers. He 

committed repeated violations of jail regulations and created a code to bypass jail 

security with his mail. Evidence established that inmates who communicated via 

coded mail presented a security threat to corrections officers, other inmates, and 

even the public. In just the four months preceding this capital murder, appellant

continually committed criminal offenses, including traffic violations, possession of 

marijuana and other controlled substances, possession of drug paraphernalia, DWI, 

and excessive drug usage. Barley v. State, 906 S.W.2d 27, 30-31 (Tex.Crim.App. 

1995) (explaining that even a criminal history comprised offenses that are not 

overtly violent can lead a reasonable juror to find a probability of future 

dangerousness when the offenses show an escalating and ongoing pattern of 

disrespect and continued violations of law). 

 22 His aunt and hired psychologist Dr. Harrell.
48

Some of the most disturbing evidence of appellant’s future dangerousness 

was that he gained his self-worth from his criminal activity, in spite of being highly 

intelligent and having had a well-paying job. Appellant told his mother that he was 

at the top of the prison pecking order. The night of this capital murder, appellant 

wanted to commit a robbery, telling his roommate that he had gotten away with 

“worse shit.” Appellant saw this capital murder as an opportunity for financial 

gain by selling his story, which even his defense expert found disturbing. He 

asked his mother about murderabilia and to post him on meet-an-inmate.com, 

describing him as “bad” as possible. Appellant thought he was “cool” for owning 

a firearm, and he bragged about eluding police on his motorcycle. And, appellant 

exhibited a character for violence. He was obsessed with mass murder and other 

violent tragedies such as the movie theater massacre in Colorado, the Sandy Hook 

Elementary murders, and the Boston Marathon bombing. 

Appellant further displayed a lack of respect for others, even his friends. He 

was manipulative, using Nikki Nance for drugs and money, despite his high-paying 

job. Appellant threatened to commit suicide with his firearm as a ruse to get 

Feland back as his girlfriend. He was polite with police officers and pleaded that 

he wanted to be a “productive member of society” to get out of tickets or arrests. 

He feigned suicide attempts while incarcerated to get better housing. 
49

The substantial psychiatric evidence in this case supported the jury’s 

determination that appellant constituted a continuing threat to society. Appellant

did not like to be controlled by others and lacked empathy. He had the capacity to 

change, but chose not to. Appellant’s mental health experts diagnosed appellant 

with major depression, but also considered his depression a factor in his 

commission of crime. The jury could infer from the evidence regarding his 

personality that his character traits were consistent with the factors on the 

psychopathy checklist for future dangerousness. 

The jury could reasonably believe that appellant’s drug use made him 

dangerous. Williams v. State, 273 S.W.3d 200, 214 (Tex.Crim.App. 2008);

Wilkerson, 881 S.W.2d at 326, (habitual drug use constitutes evidence of future 

dangerousness). Although intoxicated on Xanax the night he committed capital 

murder, appellant planned his criminal activities at Walmart, went to the store 

intending to steal from the pharmacy, armed himself with a loaded firearm and 

magazine, and was fully aware that he had murdered a police officer. Defense 

witness Dr. Harrell thought appellant’s killing of Officer Padron was a drug-related 

problem, and he testified that appellant could become dangerous and commit acts 

of violence in prison if he were under the influence of drugs or alcohol. The State 

presented evidence that prison inmates had regular access to drugs and alcohol. 

And, there was evidence that psychiatric medications were valuable in prison and 
50

could be used for favors. Despite appellant’s escalating drug use prior to this 

capital murder, he did not experience withdrawal symptoms in jail, suggesting he 

continued to abuse substances. Indeed, appellant made “hooch” while incarcerated 

and hoarded pills in his cell. 

Appellant contends the evidence in this case is insufficient like the evidence 

in Berry, Beltran, and Huffman.

23 Appellant’s brief at p. 17. But, these cases are 

easily distinguishable on their facts. In Berry, the evidence showed the defendant 

was dangerous “only to those of her own children” and there was a very low 

probability that she would have any more children if sentenced to life in prison. 

233 S.W.3d at 864. Additionally, the State in that case invited the jury to utilize an 

improper standard in its consideration of future dangerousness by asking the jury 

to assume that the defendant would be living in the free world. Id. at 863.24 In 

Beltran, the Court determined the facts of that robbery-murder alone were 

insufficient to sustain the future dangerousness issue, and Beltran’s prior criminal 

history reflected mostly alcohol-related offenses. 728 S.W.2d 389-90. Unlike 

appellant’s case, no psychiatric evidence was introduced in Beltran. 728 S.W.2d at 

390. In Huffman, there was no evidence that the defendant originally intended 

 23 Berry v. State, 233 S.W.3d 847 (Tex.Crim.App. 2007), Beltran v. State, 728 S.W.2d 382 

(Tex.Crim.App. 1987), and Huffman v. State, 746 S.W.2d 212 (Tex.Crim.App. 1988).

24 Also, it is notable that Berry was a 5-4 decision with the dissent arguing that the majority 

utilized an improper standard of review on the future dangerousness sufficiency question. 233 

S.W.3d at 865.
51

murder or violence in committing the robbery-murder. 746 S.W.2d at 225. 

Huffman committed the offense while highly intoxicated and had no memory of it. 

He had only one disciplinary violation while incarcerated and that was shortly after 

his arrest because he did not know where he was or why he was there. Id. at 224. 

And, the State presented no psychiatric evidence at punishment. Id. at 225.

The evidence in this case showed that prior to committing this capital 

murder appellant continually engaged in conduct that constituted a threat to 

society. The killing of Officer Padron was the culmination of a life-long escalating 

pattern of violations of the law, disrespect for law enforcement officers and other 

citizens, including friends, escalating drug use and abuse, threatened violence, and 

depression. The evidence at trial showed appellant continued to engage in such 

behaviors even after being incarcerated for this capital murder. Based on all the 

evidence, the jury’s finding that there was a probability that appellant would 

commit criminal acts of violence and constitute a continuing threat to society was 

rational. The evidence was therefore legally sufficient to sustain the jury’s answer 

on the punishment issue. Appellant’s first point of error should be overruled.
52

STATE’S REPLY TO APPELLANT’S SECOND POINT OF ERROR

Appellant	did	not	suffer	harm	as	a	result	of	the	trial	court’s	denial	

of	his	challenge	for	cause	to	venireperson	Reading.		Alternatively,	

the	trial	judge	did	not	err	in	denying	appellant’s	challenge	for	

cause	to	venireperson	Reading.

The issue is whether the trial court’s ruling on appellant’s challenge for 

cause to Reading effectively deprived appellant of one of his statutorily-given 

peremptory challenges. Gonzales v. State, 353 S.W.3d 826, 831 (Tex.Crim.App. 

2011). Before harm can be shown on the record with respect to a trial court’s 

denial of a defense challenge for cause, a defendant must (1) use a peremptory 

strike on the challenged prospective juror; (2) exhaust his peremptory challenges; 

and (3) request an additional peremptory strike to use upon a specifically identified 

objectionable venire member who, because the extra strike was denied, actually sat 

on the jury. Davis v. State, 313 S.W.3d 317, 343 (Tex.Crim.App. 2010). In a 

death penalty case with only one defendant, that defendant is entitled to fifteen 

peremptory challenges. Art. 35.15(a), V.A.C.C.P.

Appellant Cannot Show Harm

The State had no objections to Reading as a juror. (RR 11: 205). Appellant 

objected to Reading on the basis that he had a bias toward the death penalty and 

that he would require the defense to present mitigating evidence. (RR 11: 205). 

The trial judge denied appellant’s challenge to Reading, and appellant exercised a 

peremptory challenge against Reading. (RR 11: 205; RR 16: 123-124). The 
53

defense utilized only 14 peremptory challenges in selecting the 12 members of the 

jury. (RR 16: 132). The defense used its fifteenth peremptory challenge to strike a 

venireperson from the pool of alternate jurors. (RR 11: 134). Cf. Comeaux v. 

State, 445 S.W.3d 745, 751 (Tex.Crim.App. 2014) (defendant who chooses to use 

peremptory strike outside strike zone may not complain about harm concerning 

juror within strike zone who could have been removed instead). 

Appellant did not request an additional peremptory strike because it was not 

needed. (RR 11: 133-134). Consequently, appellant did not identify an 

objectionable juror on his jury because none sat on his jury. And, appellant did not 

claim that he would have struck an alleged objectionable juror if he had had an 

additional peremptory strike to use. Under these circumstances, appellant fails to 

show he suffered any harm from the trial court’s denial of his challenge for cause. 

Comeaux, 445 S.W.3d at 750. Appellant’s second point of error should be 

overruled on this basis.

Alternatively, the Trial Judge Did Not Err in Denying the Challenge for 

Cause

Although recognizing that he cannot show harm because he did not use all of 

his peremptory challenges, appellant’s brief at pp. 18-19, appellant nevertheless 

contends that the trial judge erred in denying his challenge for cause to 

venireperson Reading. Appellant contends Reading was challengeable for cause 
54

for his bias in favor of the death penalty and for his need for the defense to present 

mitigating evidence. 

Facts Relevant to the Challenge for Cause

During the State’s voir dire examination, Reading indicated that his views 

regarding the death penalty would not affect his ability to listen to the evidence and 

the law in this case as given by the trial judge and to decide the punishment issues. 

(RR 11: 166). As for murder, Reading affirmatively noted that he could consider 

the entire range of punishment, and he, in fact, could envision situations where the 

minimum and maximum punishments would be appropriate. (RR 11: 168). 

Reading agreed with the prosecution that murder by itself was never sufficient for 

the death penalty. (RR 11: 170). Reading believed capital punishment was 

appropriate for the capital murder of a police officer. (RR 11: 171).

Reading further understood that there were only two punishment options in a 

capital murder case, and he was okay with that. (RR 11: 171-172). Reading could 

“absolutely” hold the State to its burden of proof of beyond a reasonable doubt and 

not put any burden on the defense. (RR 11: 172). Reading understood, and 

agreed, that he should find the defendant “not guilty” if the State failed in its 

burden of proof and even if the defendant presented no evidence. (RR 11: 173). 

Reading had a basic understanding of the punishment phase process in a 

capital murder case regarding the special issues. (RR 11: 173-174). The 
55

prosecutor discussed the factors in the first punishment issue, viz: probability, 

criminal acts of violence, and society. (RR 11: 175-179). The record reflects 

Reading understood the issues related to those factors, the State’s continued burden 

of proof on those issues, and that the defendant did not have to do anything. (RR 

11: 175-176). 

As for the mitigation issue, Reading indicated he was open to considering 

that there could be mitigating evidence sufficient to choose life without parole as 

an appropriate punishment. (RR 11: 181). On the second punishment issue, 

Reading could consider any mitigating evidence presented, the circumstances of 

the offense, the defendant’s character and background, and the defendant’s moral 

culpability. (RR 11: 183-186). The prosecutor also discussed other potential 

mitigating factors with Reading. (RR 11: 186-188). Reading was willing to wait 

and hear all the evidence before making any decision about the punishment issues. 

(RR 11: 188).

The defense then questioned Reading. In response to a hypothetical 

regarding a capital murder of a police officer, Reading stated he would lean toward 

the death penalty as an appropriate punishment where there were no defensive 

issues at guilt/innocence and where the jury has already determined the future 

dangerousness issue against the defendant. (RR 11: 190). Yet, Reading confirmed 

that he could consider mitigating evidence. (RR 11: 191). When asked by defense 
56

counsel if he would want the defense to bring evidence to convince him that death 

was not the appropriate punishment, Reading answered affirmatively. (RR 11: 

191).

Further, regarding mental illness as mitigating evidence, Reading indicated 

that killing a police officer was a serious offense and that it would be difficult to

not vote for the death penalty where such a murder was knowingly committed. 

(RR 11: 193). When asked by defense counsel to place himself on a spectrum of 

the death penalty being reserved for the “worst of the worst” to being appropriate 

for any murder, Reading tended to fall more toward believing the death penalty 

was appropriate for any knowing and intentional murder. (RR 11: 196-197). 

Reading confirmed that he could “absolutely” fairly and impartially consider 

all the evidence in this case, even in the punishment phase. (RR 11: 197). Reading 

clarified that he would not automatically lean toward the death penalty after 

finding a person guilty of the capital murder of a police officer, as suggested by 

defense counsel’s hypothetical, which had confused Reading. (RR 11: 197-198). 

After again discussing the defense hypothetical, Reading confirmed that he would 

lean toward the death penalty as the appropriate punishment where several factors 

were present, to-wit: the defendant intentionally killed a police officer in the line 

of duty, there were no defensive issues and no mental illness issues, and the jury 
57

had already found that the defendant would constitute a continuing threat to 

society. (RR 11: 199). 

Finally, as to the Fifth Amendment right not to testify, Reading indicated 

that he would not hold it against the defendant if he did not testify, but it would be 

a question in his mind; i.e., why not testify and defend yourself if you are 

innocent.

25 (RR 11: 200). But, Reading indicated that he would do his best to put 

that out of his mind if instructed by the trial judge to not consider it during 

deliberations. (RR 11: 200-201). Reading confirmed for the trial judge, after 

having the instruction read to him, that he could follow the court’s instruction. 

(RR 11: 201-202).

The trial judge then questioned Reading. The judge determined that 

Reading could “absolutely” consider the mitigation issue after finding that the 

defendant would be a continuing threat to society. (RR 11: 202-203). The judge in 

fact noted that the jury only considered the second punishment issue if it had found 

the first punishment in the affirmative, i.e. that the defendant would be a 

continuing threat to society. (RR 11: 202). Reading confirmed that he could 

consider mitigating evidence and vote for a sentence less than death if warranted 

by the mitigating circumstances. (RR 11: 203). 

 25 Appellant does not contend on appeal that Reading was challengeable for cause on this basis. 

And, indeed he was not, given that he confirmed he could follow the law. (RR 11: 201-202). 
58

The State had no objections to Reading as a juror. (RR 11: 205). Appellant 

objected to Reading on the basis that he had a bias toward the death penalty and 

that he would require the defense to present mitigating evidence. (RR 11: 205). 

The trial judge denied appellant’s challenge to Reading, and appellant exercised a 

peremptory challenge against Reading. (RR 11: 205; RR 16: 123-124). 

Standard of Review and Applicable Law

The appellate court looks at the entire record of voir dire to determine if the 

evidence is sufficient to support the court’s ruling on a challenge for cause. 

Gonzales, 353 S.W.3d at 831. The appellate court affords great deference to the 

trial court’s ruling because the trial judge is present to observe the demeanor of the 

venireperson and to listen to his tone of voice. Id., citing Feldman v. State, 71 

S.W.3d 738, 744 (Tex.Crim.App. 2002). Particular deference is afforded when the 

venireperson’s answers are vacillating, unclear, or contradictory. Davis, 313 

S.W.3d at 344. The appellate court will reverse a trial court’s ruling on a challenge 

for cause only if a clear abuse of discretion is evident. Gonzales, 353 S.W.3d at 

831, citing Davis, 313 S.W.3d at 344.

A venireperson is subject to a challenge for cause if he has a bias or 

prejudice against the defendant or against the law upon which either the State or 

the defense is entitled to rely. Art. 35.16(b)(3), (c)(2), V.A.C.C.P.; Gardner v. 

State, 306 S.W.3d 274, 295 (Tex.Crim.App. 2009). The test is whether a 
59

venireperson’s bias or prejudice would substantially impair his “ability to carry out 

his oath and instructions in accordance with the law.” Gonzales, 353 S.W.3d at 

831-32, quoting Feldman, 71 S.W.3d at 744. The proponent of the challenge for 

cause must establish that the challenge was proper by showing that the 

venireperson understood the requirements of the law and could not sufficiently 

overcome his prejudice to follow the law. Gonzales, 353 S.W.3d at 832. Before a 

venireperson may be excused for cause on that basis, the law must be explained to 

him, and he must be asked whether he can follow that law, regardless of his 

personal views. Feldman, 71 S.W.3d at 744.

Application of Law to Facts

Viewing the entirety of Reading’s voir dire examination, it is clear that the 

trial court did not abuse its discretion in denying appellant’s challenge for cause to 

Reading. Reading did not display a determination to automatically vote for the 

death penalty, as appellant contends.26 Appellant errs in relying on only a portion 

of Reading’s voir dire to support his argument. 

Reading agreed that capital punishment was an appropriate punishment for 

the intentional murder of a police officer, but he repeatedly confirmed that he 

 26 Appellant also argues in his brief that because Reading had a bias toward the death penalty, he 

lowered the State’s burden of proof. Appellant’s brief at p. 21. Appellant did not make this 

argument regarding the burden of proof in the trial court, so that argument is not preserved for 

appellate review. Tex.R.App.Proc. 33.1. Moreover, Reading steadfastly maintained that he 

would hold the State to its burden of proof. See (RR 11: 172-173, 175-176).
60

could hold the State to its burden of proof on the punishment issues, consider any 

mitigating evidence, and follow the court’s instructions. While, in one point of his 

voir dire, Reading stated that he would vote for the death penalty for the knowing 

murder of a police officer, that answer was in response to a hypothetical that 

confused Reading. See (RR 11: 197-198). After again discussing the defense 

hypothetical, Reading confirmed that he would lean toward the death penalty as the 

appropriate punishment where several factors were present, viz: the defendant 

intentionally killed a police officer in the line of duty, there were no defensive 

issues and no mental illness issues, and the jury had already found that the 

defendant would constitute a continuing threat to society. (RR 11: 199). But, as 

his voir dire indicates, he would only “lean” toward the death penalty; it was not an 

“automatic” assessment of death. Reading’s voir dire reflected that he deemed 

capital murder an “appropriate” punishment, not an “automatic” punishment. 

Furthermore, Reading’s voir dire reflects that he understood and fully 

accepted the State’s burden of proof at guilt/innocence and on the punishment 

issues. Reading confirmed he could “absolutely” hold the State to its burden of 

proof of beyond a reasonable doubt and not put any burden on the defense. (RR 

11: 172). Reading understood, and agreed, that he should find the defendant “not 

guilty” if the State failed in its burden of proof, even if the defendant presented no 

evidence. (RR 11: 172-173). As for the factors relevant to the first punishment 
61

issue, Reading understood the State’s continued burden of proof on those issues 

and that the defendant had no burden with regard to that issue. (RR 11: 175-176). 

The State acknowledges that Reading answered affirmatively in response to 

defense counsel’s question “you would want the Defense to bring you -- bring you 

some evidence to convince you that death is not the appropriate sentence, correct?” 

(RR 11: 191). Yet, this was an isolated portion of Reading’s voir dire, and defense 

counsel had not explained the burden of proof to Reading prior to this question;

nor had the defense asked Reading whether he could follow the law once properly 

explained to him. Gonzales, 353 S.W.3d at 832; Feldman, 71 S.W.3d at 744. 

Thus, Reading was not challengeable for cause based on that single response. 

Appellant’s second point of error is without merit and should be overruled.

STATE’S REPLY TO APPELLANT’S THIRD POINT OF ERROR

Appellant	failed	to	preserve	any	alleged	error	for	review	because	

there	was	no	adverse	ruling.		Alternatively,	the	trial	court	did	not	

abuse	its	discretion	in	limiting	the	voir	dire	hearing	to	the	expert’s	

qualifications and	the	basis	of	her	findings.

Relevant Facts

Prior to Dr. Mauro testifying for the State in rebuttal at the punishment 

phase, appellant requested and was granted a hearing on her qualifications. (RR 

26: 6). The State questioned Dr. Mauro about her educational and professional 

background. (RR 26: 6-8). Then, on his voir dire examination, appellant asked Dr. 
62

Mauro to summarize her findings regarding him. (RR 26: 8). The trial judge 

interjected that the voir dire was to be on Dr. Mauro’s qualifications, and appellant 

agreed. (RR 26: 8-9). Appellant stated that he might want to suppress some of Dr. 

Mauro’s findings, and he contended he had a right to question the scientific basis 

for her findings. (RR 26: 9). The trial judge confirmed that appellant had the right 

to question Dr. Mauro about the basis of her findings and her expertise, but he did 

not have the right to a hearing as to her specific findings. (RR 26: 9). Appellant 

requested the opportunity to check the rule regarding his right, which the trial 

judge allowed. (RR 26: 9). The record reflects defense counsel conferred, 

proffered no further argument or objection, and then proceeded to question Dr. 

Mauro about the basis for her findings. (RR 26: 10). After briefly questioning Dr. 

Mauro, appellant stated he had no objection to her testimony. (RR 26: 11).

Appellant Failed to Preserve Any Alleged Error for Review

Appellant initially requested a hearing outside the jury’s presence on Dr. 

Mauro’s qualifications, and the trial judge granted him that hearing. (RR 26: 6). 

When appellant asked Dr. Mauro about her specific findings, the trial judge 

interjected that the purpose of the hearing was to examine Dr. Mauro’s 

qualifications. (RR 26: 8). Appellant agreed. (RR 26: 9). But, appellant 

contended he had “the right to question whether there is a scientific basis to her 
63

findings prior to her testifying about those findings.” 27 (RR 26: 9). The trial judge 

agreed that appellant could ask Dr. Mauro about the basis of her findings but 

without going into her specific findings. (RR 26: 9). Appellant requested to check 

the rule, which the trial judge allowed. (RR 26: 9). Appellant proceeded with the 

hearing without any further objection or request to query Dr. Mauro on her specific 

findings. There being no adverse rulings, appellant failed to present any alleged 

error for review. Tex.R.App.Proc. 33.1(a); Fuller v. State, 253 S.W.3d 220, 232 

(Tex.Crim.App. 2008), cert.denied, 555 U.S. 1105 (2009). Moreover, appellant 

had no objection to Dr. Mauro’s testimony at trial. Therefore, no alleged error is 

preserved for review. Tex.R.App.Proc. 33.1. Appellant’s third point of error 

should be overruled on procedural default grounds.

The Trial Judge Afforded Appellant a Proper Rule 705(b) Hearing

Texas Rule of Evidence 705(b) provides:

Voir Dire. Prior to the expert giving the expert’s opinion or disclosing the 

underlying facts or data, a party against whom the opinion is offered upon 

request in a criminal case shall, or in a civil case may, be permitted to 

conduct a voir dire examination directed to the underlying facts or data upon 

which the opinion is based. This examination shall be conducted out of the 

hearing of the jury.

Under this rule, a defendant is entitled upon a timely request to conduct a voir dire 

examination directed to the underlying facts or data upon which the opinion of an 

 27 A request to take a witness on voir dire to prove up her expert qualifications does not 

constitute a request for a Rule 705(b) hearing to inquire into the “underlying facts or data” of the 

expert’s opinion. Jenkins v. State, 912 S.W.2d 793, 814 (Tex.Crim.App. 1995) (op. on reh’g.). 
64

expert witness is based. Alba v. State, 905 S.W.2d 581, 587 (Tex.Crim.App. 

1995), cert.denied, 516 U.S. 1077 (1996). The trial court must allow this 

examination to be conducted outside the hearing of the jury and prior to the expert 

testifying to her opinion before the jury. Id. at 587-88. The purpose of Rule 

705(b) is to give defense counsel the “opportunity to determine the foundation of 

the expert’s opinion without fear of eliciting damaging hearsay or other 

inadmissible evidence in the jury’s presence.” Id. at 588, citing Goss v. State, 826 

S.W.2d 162, 168 (Tex.Crim.App. 1992), cert.denied, 113 S.Ct. 3035 (1993).

Appellant contends the trial court erred in not allowing him to question Dr. 

Mauro about her specific findings in the voir dire hearing on her qualifications. By 

its express terms, Rule 705(b) does not authorize inquiry into the expert’s specific 

findings. It allows inquiry into the underlying basis of the expert’s opinion, which 

the trial judge allowed in this case. The record reflects that the trial judge 

complied with the requisites of Rule 705(b), and appellant fails to show any 

alleged error. 

Appellant’s third point of error is wholly without merit and should be 

overruled.
65

PRAYER

WHEREFORE, PREMISES CONSIDERED, the State prays this Court to 

overrule the appellant’s points of error and to affirm the trial court’s judgment. 

Respectfully submitted,

ROSEMARY LEHMBERG

District Attorney

Travis County, Texas

/s/ Lisa Stewart

Lisa Stewart

Assistant District Attorney

State Bar No. 06022700

P.O. Box 1748

Austin, Texas 78767

Lisa.Stewart@traviscountytx.gov

AppellateTCDA@traviscountytx.gov

(512) 854-9400

 Fax No. 854-4810

CERTIFICATE OF COMPLIANCE

Pursuant to Texas Rule of Appellate Procedure 9.4(i)(2)(A), the State 

certifies that the length of this brief is 14,078 words. The State also certifies, 

pursuant to Texas Rule of Appellate Procedure 9.4(e), a conventional typeface 14-

point was used to generate this brief.

/s/ Lisa Stewart

Lisa Stewart

Assistant District Attorney
66

CERTIFICATE OF SERVICE

This is to certify that the above State's brief was sent, via U.S. mail, email, 

facsimile, or electronically through the electronic filing manager, to the appellant’s 

attorney on appeal, Ariel Payan, Attorney at Law, 1012 Rio Grande, Austin, Texas 

78701; Honorable Lisa C. McMinn, State Prosecuting Attorney, P.O. Box 13046, 

Austin, Texas 78711; and appellant’s writ of habeas corpus attorney, Brad 

Levenson, Office of Capital Writs, 1033 La Posada Drive, Suite 374, Austin, Texas 

78752-3824, on this 20th day of July, 2015.

/s/ Lisa Stewart

Lisa Stewart

Assistant District Attorney