## IN THE COURT OF CRIMINA L APP EALS OF TEX AS

N O
. A P
- 7 7 , 0 2 9

J A M E S H A R R I S , J R . , A p p e l l a n t

v . T H E S T A T E O F T E X A S

O N D I R E C T A P P E A L F R O M C A U S E N O
. 6 7 0 6 3 I N T H E 1 4 9 J U D I C I A L D I S T R I C T C O U R T

T H B R A Z O R I A C O U N T Y

J O H N S O N , J . , d e l i v e r e d t h e o p i n i o n o f t h e C o u r t i n w h i c h M E Y E R S , K E A S L E R , H E R V E Y , A L C A L Á , R IC H A R D S O N , Y E A R Y , a n d N E W E L L , J J . , j o i n e d . K E L L E R , P . J . , c o n c u r r e d . O P I N I O N
I n November 2013, a jury convicted appellant of capital murder for the J anuar y 2012 stabbing death of Alton Wil cox in the course of committing or attempting to c ommit burg lary of a habitation or robbe ry
. See T E X
. P E N A L C O D E § 19.03(a) (2). Pursuant to the jury ’s answe rs to the 1

A p p e l l a n t p l e a d e d g u i l t y t o t h e i n d i c t m e n t i n f r o n t o f t h e j u r y , a n d i t r e t u r n e d a n i n s t r u c t e d v e r d i c t o f g u i l t y
. 1 S e e I n r e S t a t e e x r e l

. T

h a r p , 3 9 3 S

. W

. 3 d 7 5 1 , 7 5 7 ( T e x
. C r i m
. A p p
. 2 0 1 2 ) ( “ [ A ] p l e a o f g u i l t y t o a j u r y e l i m i n a t e s g u i l t a s a n i s s u e t o b e d e t e r m i n e d a n d m a k e s i t ‘ p r o p e r f o r t h e t r i a l j u d g e i n h i s c h a r g e t o i n s t r u c t t h e j u r y t o r e t u r n a v e r d i c t (continued...)2

specia l issues set forth in Texas Code of Criminal Procedur e Article 37.071, sections 2(b) and 2(e) , the t rial j udg e sentenced appellant t o death. T E X
. C O D E C R I M
. P R O C
. Art. 37.071, § 2 (g)

. Direc t 2

appea l to this Court is automatic. Art. 37.071 , § 2 (h ). Appellant raises ten poi nts of error. After
revie wing appellant’ s points of error, we find them to be without merit. Consequently , we affirm
the trial cour

t’s judgme nt and sentenc e of de ath.

Im proper Im peachm ent
I n point of error one, appellant alleg es t hat t he trial court abused i ts discret i o n in allowing
the State to impeach the testimony of defe nse expe rt witness Dr. Ray mond Singer , a neuropsy cholog ist and n eu ro -t o x i colog ist, with examples of case s in which other courts had excluded
S i n ger’ s testimony

. Appellant notes that, at a hear ing outside the jury ’s prese nce, the trial judge 3
found Singer to be qualified as an expert and found that his opinion test i m o n y was admissible. Appellant asserts that the t rial j udg e therefor e n ecessarily found t hat S inge r’s proposed testimony

was sufficie ntly rele vant and reliable to assi s t t h e j u ry
. Appellant arg ues that it was acc ording ly improper for the trial judge to allow the State to attack Singer ’s qualifica tions and the reliability of his opinion when it cross-examined Singe r in front of the jury

. Texas Rule of Evidence 702 g overns the a dmission of ex pert testimony

. 4
A witness who is qualified as an expert by knowledg e, skill, experience , training , or education may testify in the form of an opinion or otherwise if the expert’s scientific,
(...continued) 1

o f g u i l t y , c h a r g e t h e j u r y o n t h e l a w a s t o t h e p u n i s h m e n t i s s u e s a n d t h e n i n s t r u c t t h e m t o d e c i d e o n l y t h o s e i s s u e s
. ’ ” )

.

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

e r t o t h e C o d e o f C r i m i n a l P r o c e d u r e
. 2

I n h i s t e s t i m o n y b e f

o r e t h e j u r y , S i n g e r t e s t i f i e d a b o u t h i s p r o f

e s s i o n a l q u a l i f

i c a t i o n s a n d t h e b a s i s f o r h i s 3

o p i n i o n t h a t a p p e l l a n t h a d a m a j o r n e u r o - c o g n i t i v e d i s o r d e r d u e t o e x p o s u r e t o t o x i c s u b s t a n c e s
.
U n l e s s o t h e r w i s e s t a t e d , f u t u r e r e f e r e n c e s t o “ R u l e s ” i n t h i s o p i n i o n d e n o t e t h e T e x a s R u l e s o f E v i d e n c e
. 43

technica l, or other specia liz ed knowledg e will help the trier of fac t to understand the evidenc e or to de termine a fac t in issue.
“The party proff

ering the expert witness bear s the burden of showing that the witness is qualified on the specific matter in question.” W yatt v. State , 23 S.W .3d 18, 27 (Tex. Crim. App. 2000) (interna l quotation marks omitted). Under Rule 705, even if an expert is qualified for purposes of Rule 702,
the expert’s opinion is not admissible if the underly ing fac ts or data do not provide a sufficie nt basis
for the opinion. See Rule 705(c)

. I n a criminal case , the adver se party must be permitted to examine
the expert outside the jury ’s hear ing about the u n d erly ing fac ts or data befor e the expert states an opinion or discloses the under ly ing f acts or data. See Rule 705.
I n Kelly v. State , 824 S.W .2d 568, 572–73 (Tex. Crim. App. 1992), we adopted s ev er al
proce dural and substantive limit ations upon the admission of expert scientific testimony to e nsure
t h at unreliable expertise would be excluded from the jury ’s consideration. Coble v. State , 330
S.W .3d 253, 273 (Tex. Crim. App. 2010). I n pertinent part, upon reque st, a trial judge must conduct

a “g ateke eping ” hear ing outside the jury ’s prese nce to deter mine whether the proponent’s scientific
evidenc e is sufficie ntly

reliable and re levant to help the jury in rea ching an ac cura te re sult. Id

. The rec ord of the hear ing shows that trial counsel elicited testimony from Singer conce rning his pr ofessional qualifica tions and experience in ne uropsy cholog y and neurotoxicology , including
his experience testify ing in court as an expert witnes s i n t h o s e fi elds. Trial counsel also elicited testimony conce rning the fac ts or data on which Singer relied in forming the opinion that appellant
“suff ers from brain injury from exposure to numerous tox ic substances,

. . . resulti n g i n m aj or
cog nitive disorder.”
When the prosec utor cross-e x amined Singer , she also questioned him about his profe ssional4

qualifica tions and experi en ce , as well as the fac ts or data underly ing his opinion. When the
prosec utor inquired i n t o h i s ex perie nce as an expert witness, Singer acknow ledg ed that there had
been four occa sions on which courts had excluded his expert testimony

. Howeve r, Singer disputed
the prosec utor’s asser

tion that those courts had excluded his testimony based on a finding that it was not scientifically

reliable

. After the prosecutor’s voir dire, trial counsel arg ued that S i n ger was qualified to testify as

an expert witness in neuropsy cholog y and neurotoxicology

. Trial counsel asser t ed that Singer ’s testimony was admissible, arg uing that “[t] he fac t that his testimony has been excluded sever al times
I don’t think is a bar to him testi fy ing he re.” Trial counse l also asked that, if the trial judg e found Singer ’s t estimony to be admissi ble, t hat he prec lude the prose cutor fr om cross-e x amining Sing er about case s in which other courts had excluded his testimony

. Alterna tively , trial counsel asked for

a motion in limine requiring the parties to approa ch the bench befor e the prosec utor eng ag ed in any such questioning. I n support, trial counsel asser ted that “fr om a 403 standpoint,

. . . we would have

to approa ch and have a balanc ing test” and that cross-e x amination by t h e p ro s ec u tor on the other

c ases would be “basic ally g oing behind this Court’s ruling say ing that [S inge r’s] qualified to te s ti f y
. ”
Trial counsel elabor ated, “I f this Court say s he’s qualified in this 705 ruling , what they are doing is
g oing behind this ruling and bring ing another court to say , y eah, b u t t h i s court said something
differ ent. I t’s almost like it’s im peac hing this Court’s dec ision, and that’s improper . . . .”
The prosec utor there afte r provided the trial judge and trial couns el wi t h copies of court opinions from the case s she had ref err ed to w hen cross-e x amining Singer

. Following a rec ess, the
trial judge hear d additional arg ument from the parties on the admissibili ty of Singer ’s testimony and
the proper scope of the prosec utor’s cross-e x amination if Singer testified befor e the jury

. The trial5

judge ruled on both issues.
THE COURT: I ’m g oing to go a head a nd allow him to testify

to the limit ed basis 5 that he’s said he’s qualified to attest to and to the things that he testified to during this 705 examination. I think the mag nitude of the case would require me to allow that to be broug ht in. But the defe nse [si c] is entitle d to test his qualifica tions with reg ard–I ’m sorry . I am looking at y ou. [P rosec utor]: W e’r e to the point wher e we could swap.
THE COURT: You can g o into prior case s wher e he has been found t o be not qualified. Be cause some of this lang uag e in these case s is pretty pointed as to g oing to his qualifications to give tox icolog y -ty pe opinions.
But I will allow him to testify , but I will al l o w t he State to g o in on crossexamination to t hose other issues. [Trial counsel]: Yes, J udg e. And f or the re cord, w e would objec t.
THE COURT: Iunderstand, a nd y our objec tion is overruled.
* * * [Trial counsel]: J udg e, for the rec ord, not to arg ue with y our ruling in any way
. I ’d just li ke to fe dera liz e my

objection. THE COURT: You may

do that, and then I ’ll rule on it. [Trial counsel]: Thank y ou, J udg e. The 4th, 5th, 14th Amendments of the United States Constit ution; Article 1, Sections 3, 10, 13, 15 and 19 of the Texas Constit ution. And we would rene w our objection based on those. THE COURT: All rig ht. And those objections will be over ruled.
The trial court’s implicit deter mination, that Singer ’s testimony was sufficie ntly reliable and
rele vant to be admissible, did not prec lude the State from challeng ing Singer ’s cre dibilit y when he

T h e p u n c t u a t i o n t h a t i s u s e d a f t e r t h e i d e n t i t y o f

t h e s p e a k e r i s c o n s i s t e n t w i t h t h e r e c o r d

. W h e n t h e p a r t i e s 5

a n d t h e t r i a l j u d g e w e r e t a l k i n g a m o n g t h e m s e l v e s , t h e c o u r t r e p o r t e r u s e d a c o l o n
. W h e n t h e o n e o f t h e p a r t i e s w a s q u e s t i o n i n g a w i t n e s s , t h e c o u r t r e p o r t e r u s e d a p e r i o d

.6

later testified in front of the jury

. At the g ateke eping hear ing, the focus of the “re liability ” analy sis 6
“is to deter

mine wheth er t he evidenc e has its basis in sound scientific methodology [,] such that testimony about ‘junk scienc e’ is wee ded out.” Till man v. State , 354 S.W .3d 425, 435 (Tex. Crim. App. 2011); s ee V

el a v. State , 209 S.W .3d 128, 135–36 (Tex. Crim. App. 2006) (“[R] eliability
focuse s on th e subject matter of the [ex pert] witness’s testimony .”). “This demands a cer tain
technica l showing .” Vela , 209 S.W .3d at 133. “Releva nce” for purposes of the g ateke eping hear ing
“re fer s to the ‘fit’ of the scientific principles to the evidenc e at hand.” Eve ritt v. State , 407 S.W .3d 259, 263 (Tex. Crim. App. 2013). An expert witnes s ’s cr edibi lity is a distinct issue and
deter mination belong ing to the j ury
. See Art. 38.04 (stating that t he jury is the ex clusive j udg e of
the fac ts proved and of the weig ht to be g iven to t h e testimony ); Vela , 209 S.W .3d at 135–36 (“[C] redibility and reliability are not the same. A jury should evalua te cre dibilit y [.] ”). Point of err or one is overr

uled. Jury Charge Err or
I n point of err or two, appellant alleg es that the trial court err ed by including lang uag e in the jury char g e stating that it had found him competent a nd sane.
To this char g e [of capital murder] the defe ndant has pleade d “GUI L TY” and he has persisted in enter ing such plea notwithstanding the Court, as require d by law, had admonished him of the conseque nces of the same; and it plainly appea ring to the Court that the defe ndant is competent and sane and that he is not influence d to make this plea by any consideration of fea r, nor by a persua sive or delusive hope of pardon prompting him to confe ss his guilt, said plea is by the Court rec eived.

A l t h o u g h t h e r e c o r d s h o w s t h a t t h e t r i a l j u d g e r e f e r r e d t o S i n g e r ’ s t e s t i m o n y a t t h e h e a r i n g a s a “ 7 0 5 6

e x a m i n a t i o n , ” a n d t h a t t r i a l c o u n s e l r e f e r r e d t o t h e j u d g e ’ s r u l i n g a s a “ 7 0 5 r u l i n g , ” i t a p p e a r s t h a t t h i s t e r m i n o l o g y w a s m e r e l y a c o n v e n i e n t s h o r t h a n d

. O u r r e v i e w s h o w s t h a t t h e h e a r i n g a l s o a d d r e s s e d r e l e v a n t i s s u e s u n d e r R u l e 7 0 2 a n d K e l l y , i n c l u d i n g w h e t h e r S i n g e r w a s q u a l i f i e d t o t e s t i f

y a s a n e x p e r t a n d w h e t h e r h i s t e s t i m o n y w a s s u f f i c i e n t l y r e l i a b l e a n d r e l e v a n t t o m e e t K e l l y ’ s m i n i m u m t h r e s h o l d f o r a d m i s s i b i l i t y
. S e e C o b l e , 3 3 0 S

. W

. 3 d a t 2 7 3

.7

Appellant contends that the lang uag e “the defe ndant is competent and sane” was a comment on the weig ht of the evidence re gar d ing his mental condition and there fore err or under Article 36.14. 7 Appellant asser

ts that the err or harme d him beca use his punishment theory was that the environment
in which he g rew up and worke d, plus his habitual drug use, aff ecte d his mental capa city to such an extent that it mitigated a g ainst the impositi on of the de ath pena lty

. Our opinion in Morin v. State, 682 S.W .2d 265 (Tex. C ri m
. App. 1983), undermines appellant’ s arg ument. I n Morin , the defendant pl ea d ed g uilty to an indi ctment charg ing him with capital murder. 682 S.W.2d at 266. The trial proc eede d in a bifurcated manner. See id. ; see also
Holland v. State , 761 S.W .2d 307, 313 (Tex. Crim. App. 1988) (whe n a defe ndant in a capital case pleads g uilty , the proce eding that ensues may be either “bifurc ated” or “unitary ”). That is, the trial

court first g ave the jury a char g e that instructed it to return a g uilty verdic t. See Morin , 682 S.W .2d

at 267. After the jury complied with the trial court’s instruction to return a g uilty verdic t, evidenc e

wa s h ear d at the punishment phase of trial. See id

. Pursuant to the jury ’s answe rs to t h e s p ec i al issues, the trial cour

t sentence d the def

endant to death. Id

. The char g e g iven at the g uilt phase of Morin was simil ar to the one g iven in appellant’ s case
. I n addition to instructing the jury to return a g uilty verdic t, the char g e stated that: the defe ndant had pleade d g uilty to the ind ictment; the defe ndant was mentally competent; the plea had been made
fre ely and voluntarily ; and the trial court had rec eived the plea. Id

. at 268. We stated that the g uiltphase char g e in that case “show[ed] compliance with Art. 36.14 in that the jury was g iven instruction

on the law, applicable to the case , without comment on the weig ht of the evidenc e.” Id

. at 268–69.

I n p e r t i n e n t p a r t , A r t i c l e 3 6

. 1 4 r e q u i r e s t h e t r i a l c o u r t t o d e l i v e r a w r i t t e n c h a r g e t o t h e j u r y t h a t “ d i s t i n c t l y 7

s e t [ s ] f o r t h t h e l a w a p p l i c a b l e t o t h e c a s e ” w i t h o u t “ e x p r e s s i n g a n y o p i n i o n a s t o t h e w e i g h t o f t h e e v i d e n c e
. . . . ”8

Ap p ellant’s case differ s from Morin in that appellant’ s trial was a unitary proce eding in
which the jury rec eived “a combination instructed verdic t and char g e on punishment.” See Holland , 761 S.W .2d at 313. Howeve r, in Holland , we reje cted the contention that a combination instructed
verdic t on g uilt and char g e on punishment is inhe rently err oneous beca use it somehow encour ag es jurors to return the death penalt y
. S ee i d

. at 313–14 (re

jecting the arg ument that a combination
instructed verdic t on g uilt and char g e on punishment “plac es the question of absolute g uilt more in
the minds of the jury as they delibera te since they have been or dere d in the same document to f ind [t he defe ndant] g uilty ”) (interna l quotation marks omitted). Wit hout more, the fac t that the lang uag e of which appellant complains appe are d in a combination instructed ve rdict on g uilt and char g e on punishment does not persua de us that we should rea ch a differ ent conclusion than we rea ched in
Morin . Point of error two is ove rruled. Challenges f

or Cause
I n points of err or three throug h six , appellant alleg es that the trial court err oneously denied
his challeng es for cause to potential jurors Br enda Woods, Stephanie Coop er , Br en d a L ee, and
Donna Vansc oy
. He contends that these prospec tive jurors possessed a b i as aga inst the law that
would substantially impair their ability to assess punishment in acc ordanc e with the l aw and
evidenc e.
I n Comeaux v. State , 445 S.W .3d 745, 749–50 (Tex. Crim. App. 2014 ), we d i scussed the
prer equisites to obtaining relief on a claim that the trial co u rt erroneously denied the appellant’ s challeng e for cause
. See also Johnson v. State , 43 S.W .3d 1, 6 (Tex. Crim. App. 2001). I n addition

to demonstrating err or by the trial court, the appellant must show on the rec ord that (1) he asser ted
a cle ar a nd specific challeng e for cause ; (2) he used a pere mptory challeng e on the c omplained-of9

venire member; (3) his pere mptory challeng es wer e exhausted; (4) his reque st for additional strikes
was de nied; and (5) an objec tionable juror sa t on the jury

. Comeaux , 445 S.W .3d at 750.
H e r e , th e r e c o r d shows that appellant exhausted his fiftee n statutory pere mptory strik e s , u s in g his fifth, six th, seventh, and eig hth pere mptory strikes to remove Woods, Cooper, L ee, and Vansc oy afte r the trial court denied his cause -base d challeng es to them. When appellant used his fiftee nth and last statutory

pere mptory

strike to remove J uror Numbe r 172, ele ven jurors ha d been se ated. Appellant unsucce ssfully challeng ed the next p r o s p e c ti v e ju r o r , M ic h a e l Martinez, for cause
. I mmediately afte r the trial court denied appellant’ s challeng e for cause to Martinez, trial counsel
filed a w ritten motion in which he reque sted twelve a dditional peremptory strikes. 8
I n the arg ument on the motion that followed, trial counsel stated that he would use one of the
additional pere mptory strikes ag ainst Martinez, whom he identified as an objectionable juror. The
trial court denied appellant’ s reque st for additional pere mptory strikes, and it seate d Martinez as the twelfth juror.
A defe ndant may challeng e a venire member for cause when he or she is alleg ed to be biased

or prejudice d ag ainst the defe ndant or the law on which the State or defe ndant is entitled to rely

. Gardner v. State , 306 S.W .3d 274, 295 (Tex. Crim. App. 2009); see Art. 35.16(a) (9), (c) (2). A trial

court must excuse the veni re m em b er if such a bias or prejudice would substantially impair the juror’s ability to car

ry out his oath and instructions in acc ordanc e with the law. Feldman v

. State , 71 S.W .3d 738, 744 (Tex. Cr i m
. Ap p
. 2002). But befor e the judge excuses a potential juror for

cause , the law must be explained to the juror. Gardner , 306 S.W .3d at 295. The proponent of the

D u r i n g t h e a r g u m e n t o n t h e m o t i o n t h a t i m m e d i a t e l y f o l l o w e d , t r i a l c o u n s e l o r a l l y a m e n d e d t h e m o t i o n t o 8

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

.10

challeng e for cause bear s the burden of establishing that the challeng e is proper
. Id. The proponent does not meet this burden until he has shown that the venire member understood t h e l aw ’s require ments and could not over come his or he r pre judice we ll enoug h to follow the law. Id.
When revie wing a trial court’s decision to deny a challeng e for cause , we look to the entire

rec ord to deter

mine whether sufficie nt evidenc e exis ts to support the court’s ruling

. Davis v. State , 329 S.W .3d 798, 807 (Tex. Crim. App. 2010). We reve rse only for a clea r abuse of discretion. Id.
Be cause the trial judge is in the best position to evalua te a potential juror’s demea nor and response s,

we revie w a trial court’s ruling on a challeng e for cause with considera ble defe renc e. Gardner , 306
S.W .3d at 295; see Burks v. State , 876 S.W .2d 877, 893 (Tex. Crim. 1994) (trial judge is in the best position to deter

mine whether a venire member will set aside his views and honestly and truthfully
follow the juror’s oath). When a prospec tive juror’s answe rs conce rning his ability to follow the law

are vacillating , equivoca ting, ambig uous, unclea r, or contra dictory , we acc ord particula r defe renc e
to the trial court’s decision. Gardner , 306 S.W .3d at 295; Moore v. State , 999 S.W .2d 385, 400, 407 (Tex. Crim. App. 1999).
W oods
I n point of err or three , appellant contends that Woods was challeng eable for cause beca use, if she found a defe ndant g uilty of capital murder bey ond a rea sonable doubt, her strong belief in the
death penalty would dictate her answe rs to the specia l issues, rathe r than the law and evidenc e. More specific ally , appellant alleg es that Woods would answe r “y es” to the future- dang erousne ss spe cial
issue based on her persona l be liefs about capital- murder defe ndants in g ener al, rathe r than the law
and evidenc e in this case
. He further asser ts that “she was a disabled juror in reg ards to her persona l
beliefs whe n it came to answ ering the mitigation spec ial issue.”11

During questioning by the prosec ut o r, W o ods expressed the belief that death could be an
appropr iate penalty for capital murder. Howeve r, Woods denied that she would automatically
conclude that death was the appropr iate sentenc e just beca use the jury had found a defe ndant g uilty
of capital murder. Woods indicated that she understood the future- dang erousne ss specia l issue and
the State’s burde n of proof and that she would hold the State to its burden. She fur ther stated tha t she could continue to “kee p an open mind” conce rning the appropr iate punishment if the jury found
the defe ndant to be a future dang er. Woods indic at ed t h at s h e understood the mitigation specia l issue, could consider the differ ent ty pes of evidenc e that might be prese nted in mitigation of
p u nishment, and could answe r “y es” to the mitigation specia l issue if she found the eviden ce sufficie ntly

mitigating to warr ant a se ntence of life without par ole.
When trial counsel questioned Woods, he asked her to descr ibe her “fe eling s” or “opinion”
about the statement that “any one convicted of Capital Murder should g et the death penalty .” Woods

answe red that she “would have to hear all the fac ts of the case ” and that she could ag ree or disag ree with the statement “depe nding on the fac ts.” Trial counsel then asked W o o d s wh at her fee lings
would be if there wer e no leg al justifications or excuses for the capital murde r. Woods responded
that she thought t h e s t at em en t “would be [an] acc urate ” descr iption of her fee lings under those
circ umstances. But Woods later clar ified that she did “not nece ssarily ” think the death penalty was the appropr iate punishment for ever y capital murder “[b] eca

use there could be

. . . another whole side [besides leg al def

enses] to why

that crime w as committed. You know? ” When trial counsel subseque ntly questioned Woods about her a bility to answe r t he futuredang erousne ss specia l issue acc ording to the law and evidenc e, Woods initially stated that she could keep a n open mind. I n response to follow-up questioning , Woods appeare d to gr ow conf used and12

asked trial counsel for “a better example

. ” Qu est ioning continued, leading to the following exchang e. [Trial counsel]:

. . . Can y ou envision y ourself,

. . . knowing that somebody has c o mm it te d Ca p it a l M u r d e r , c a n y o u a n s w e r [t h e future- dang erousne ss] Special I ssu e ? Can y ou envision y ourself be ing a ble to answe r that Specia l I ssue no? [W oods]. I would have to a nswer y es. [Trial counsel]. Okay . And that’s base d on y our belief sy stem? [W oods]. Yes. * * * [Trial co u n s el ]

. Now y ou understand that the law would require y ou to be able to answe r that either

way , y es or no, to be a

qualified juror

for a Capital Murder . Are y ou telling me tha t y ou will have to answe r y es? [W oods]. I wasn’t r eally

clea r. B eca use that’s why

I asked y ou for the e x ample.
Trial coun s el ex p l ai n ed that he could not tell her the circ umstances of the instant capitalmurder case , and that he was try ing to make the po i nt that it would not be fair to appellant if she could only

answe r the futur e-da

ng erousne ss special issue “ one wa y .”
He then expressed his understanding that, when Woods had stated, “I would have to answe r
y es,” she had meant that she would alway s answe r “y es” to the future- dang erousne ss specia l issue.
The p r o secutor objected that trial counsel had mis-char acte rized the question that had led to Woods’s

answe r. The trial judge stated that he thought Woods had convey ed “some confusion in her answe r” and sug g ested that trial c ounsel ask the que stion ag ain. [Trial counsel]. Okay

. Now if y ou have found a defe ndant g uilty of Capital Murder , which as we know i s t h e death of another person by violence, if y ou found that defe ndant g uilty of Capital Murder , can y ou envision y ourself answe ring Special I ssue No. 1 no?
* * *13

[W oods]. I would have to say that from the evidenc e, an d wi t h out hear ing the evidenc e, that I

would have to be open until I hear all the evidenc e. [Trial counsel]. Okay

. And based–ba sed on that, are y ou say ing to me that y ou can envision y ourself a

nswering that question no? [W oods]. I can a

nswer yes or no. When trial counsel questioned Woods about the mitigation specia l issue, she stated that she
could consider and give effe ct t o various kinds of m itigating evidenc e, in cl u d i n g evidence of low
intellectual functioning , drug addiction, and b ra i n d am age. Woods stated that “[i] t could be
either/or” as far as whether such evidenc e could lead her to find that there was a sufficie nt mitigating
circ umstance, suc h that the answe r to the mitiga tion special issue should be “y es.”
At the end of Woods’s voir dire, trial counsel challeng ed her for cause
. Trial counsel arg ued
that Woods had ag ree d that the only appropr iate punishment for capital murder was death, which
showed that she lacke d an open mind. Although trial counsel acknow ledg ed that Woods had been
confuse d when he questioned her about her ability to answe r to the fut u re- dang erousne ss specia l issue, he asse rted that she ha d “see med to say definitively , at least at one point” that her answe r to the future- dang erousne ss specia l issue would alway s be “y es.” Trial counsel arg ued that, althoug h
Woods h a d la

te r “ c o n f o r med herse lf,” her ear lier answe r had ref lected her true fee lings on the matter. The trial c ourt denied the challeng e base d on the totality of Woods’s voir dire.
Woods’s entire voir dire contains sufficie nt evidenc e to support t h e t ri al court’s ruling

. Davis , 329 S.W .3d at 807. To the extent Woods so m eti mes g ave ambig uous, unclea r, or
contra dictory answe rs conce rning her ability to follow the law, we acc ord particula r defe renc e to the
trial court’s decision. Gardner , 306 S.W .3d at 295; Moore v. State , 999 S.W .2d 385, 400, 407 (Tex. Crim. App. 1999). Fur

ther, the trial judge was in the best position to evaluate Woods’s demea nor14

and re sponses. See D avis , 329 S.W .3d at 807. Point of error three is overrule d. Cooper Appellant alleg es in point o f err or four that Cooper was challeng eable for cause beca use, during her individual voir dire, she “demonstra ted a deep relig ious belief which would preve nt her
from proper ly considering mitigation in the punishment pha se of the trial.” He acknow ledg es that Coope r “s t ated sever al times that she could be fair and could consider the alterna tives,” but he
contends that it was “not

. . . logic al to believe that sh e woul d be able to set [her relig ious and
persona l views] aside[.] ” During her voir dire by the prosec ution, Cooper unequivoca lly stated that she understood the
law reg arding the specia l issues, and that she could set aside her persona l be liefs and answe r those
issues acc ording to the l aw and evidenc e. Under questioning by trial counsel, Cooper ag reed that
she had stated on her juror questionnaire that “[i] f there is de finite proof the Def endant took a life,
then he or she should pay

with his or her life.” [Trial counsel]. And my understanding of that is that based on y our bel i ef s ab out God and I ’m assuming the B ible– [C ooper]. Right. [Trial counsel]. –that part of that is–belief i s b as ed o n the law, this biblical law that–y ou know, an e y e for an ey e? [C ooper]. Right. [Trial counsel]. I f y ou kill som ebody , then y ou pay with y our own life? [C ooper]. Right. [Trial counsel]. And that would be the normal sort of punishment–or the normal sort of a f irst response in y our belief sy stem?15

[C ooper]. I t would be my first response , but I ’m not an attorney and not completely skilled in the nuance s of the law. So I mean, I fee l like I could, y ou know, when the law is prese nted to me and if I wer e aske d to consider options, I could follow it. [Trial c ounsel]. Okay

. I f somebody asked y ou to violate y our own conscie nce and to do something that’s oppose d to what y ou truly believe, how

can y ou do that? [C ooper]. When I was answering that questi o n , re ally the ki nd of t hings that wer e running throug h my mind [were], y ou know, if someone that I loved was k i l l ed or someone that I knew was killed; and that alway s i s much more persona l th an–unfor

tunately , it’s more persona l than, y ou know, just another in d iv id u a l in y o u r hometown or wha tever

. The Bible say s an ey e fo r an ey e, but it also–y ou know, J esus also said if someone strikes y ou once, then turn the other chee k, too. So I think I could consider all the options in front of me and rea lly weig h the information befor e making a judgme nt on someone else’ s punishment. [Trial counsel]. S o y ou think y ou can do tha t? [C ooper]. Yes.
After further questioning, trial counsel returne d to the eff ect of Cooper’s persona l beliefs on her a bility to answer

the spec ial issues acc ording to the law and e vidence

. [ T ri al counsel].

. . . [A] re y ou telling me that y ou’ve had lifelong beliefs t h at ar e probably ref lected in y our questionnaire and y ou’re able to just set all that aside? [C ooper]. Yea

h. I would think that in the questionnaire lots of questions wer e asked, even about the ty

pes of tele vision progr ams and thing s like that. And I am a fan of crime drama and I do watch the news, but I also think that people who play the role of m u rd er er in a crime drama or people who are portray ed in the media or in a murder trial are also portray ed in a cer tain way with a cer

tain slant. And one of the things that g ave me pause in this–because , ag ain, I ’ve never sat on a criminal jury befor e–wa s actua lly having Mr. Har ris in the courtroom. You know, y ou can’ t just walk down the s t re et an d k now i f som eone has committed a crime or not ; and y ou can’ t judge a book by its cover
. So it couldn’t be fair to make judgme nt on him until I ’ve he ard e very

thing in the c ase a

nd then follow the law

as it has bee n prese nted. [Trial counsel]. And it’s really important to be fair ? [C ooper]. Yes.16

At the conclusion of Cooper’s individual voir dire, trial counsel challeng ed her for cause on

sever al bases. I n rele vant part , trial counsel arg ued that Cooper “strongly believe[d] in an ey e for

an ey e. She did consider herse lf to be a relig ious person. She does have a basis in her persona l and relig ious beliefs for the death penalty .” The trial judge denied the challeng e, stating that “throug hout
her questioning I think [C ooper] made it very clea r that she could consider ever y thing” and that “g iven the totality of the answe rs ” an d by “the way she dealt with the questionnaire, the Court
believes tha t she could be f air.”
The trial court did not abuse its discretion by overr uling appellant’s challeng e for cause to Cooper. The totality of her voir dire shows that Cooper repe atedly stated that she could set aside her
persona l beliefs and answe r the specia l issues acc ording to the law and evidenc e. The trial judge was entitled to believe her, and we defe r to that belief. See Gardner , 306 S.W .3d at 295; Burks , 876
S.W .2d at 893. Point of error four is over

ruled.
Lee
I n point of err or five, appellant alleg es that L ee was challeng eable for cause bec au s e s h e would not disreg ard an illega lly obtained confession; she had a strong persona l belief “ i[ n] giving

a death penalty as punishment for a capital murder offe nse”; and she “wa s an i m p aired juror in
reg ards to finding and considering mitigating evidenc e which was prese nted at trial.” He contends
that the trial cour

t theref ore a bused its discretion in deny ing the challeng e. After the prosec utor explained the law g overning confe ssions to L ee, she indicated that she
understood the proce dural safe g uards that the law provided reg arding confe ssions and expressed her
belief that such safe g uards wer e important. T h e prosec utor there afte r g ave L ee a series of hy potheticals probing her ability to comply with a trial court’s instruction to disreg ard a confe ssion17

if she found that it was involuntary or that the police had disreg arde d a proce dural safe g uard in obtaining it. I n response , L ee ag ree d that “the en d [ d i d n o t ] j ustify the means” and that the State “[d] efinitely ” should not be permitted to do something illega l, espec ially when lives wer e at stake. The prose cutor then g ave L ee two f inal hy potheticals re g arding confe ssions. [P rosec utor].

. . . You’re sitti ng in that jury ro o m an d y o u ’ve

. . . listened to the confe s s i o n
. Ug ly , g ory details. Killing the victim, enjoy ing it, no justification, no excuse, no self-de fense

. Cold-blooded killing. You’ve hear d it. The cat’ s out of the bag

. All rig ht? But y ou believe the police did not comply

. An essential war ning was clea rly left off, or it was involunta ry
. Can y ou wholly disreg ard the statement and confe ssion and not consider it for a ny purpose? [L ee]. Yes, ma’ am. [P rosec utor]. Okay

. . . . L et’s say that confe ssion was the piece of evidenc e that g ot me bey ond a rea sonable doubt. I t’s serious beca use wholly disreg arding it, if I don’t meet my burden of

proof–be cause y ou have hone stly had to wholly

disreg ard it– [L ee]. Yes, ma’ am. [P rosec utor]. –can y ou find someone not g uilty ? [L ee]. Yes, ma’ am. [P rosec utor]. Okay . I ’m not say ing it’s plea sant. But c an y ou do that? [L ee]. Ican. When the prosec utor e xp la in e d the specia l issues, L ee indicated that she understood how they
opera ted and that, if she found a defe ndant g uilty of capital murder, sh e wo u l d n ot automatically
deter mine that death was the appropr iate sentenc e. L ee, who stated that she took the prospec t of jury
service “ver

y seriously ,” asser

ted that she would b egi n the punishment phase with an open mind
reg arding the answer to the future-dang erousne ss specia l issue. L ee also rep ea t ed l y asser ted t hat,
even if she answe red the future- dang erousne ss issue “y es,” she would maintain an open mind and18

honestly consider a ll the evidence in answer ing the mitigation spec ial issue.
When questioned by trial counsel, L ee confirme d that she had twice befor e serve d on a jury

. L ee d es cr i b ed her prior jury service as a positive experience , explaining that “the people I serve d
with did try to take in eff

ect only the fac ts that wer e prese nted in the courtroom itself and they also
tried to be ve ry

fair a nd tried to examine it from both sides.”
I n response to questions con ce rn i ng her persona l beliefs about capital punishment, L ee expressed nuance d views. L ee repe atedly asser ted that, althoug h she believed t h e d ea t h penalty
should be available as a potential punishment for capital murder, she did not nece ssarily believe that
a death sentence was the a ppropriate punishment in every such case
. For example, L ee stated that
she did not think the death penalty would be appropr iate when “ther e wer e circ umstances that could
lessen the sever ity of the crime.” L ee also stated that she would not do aw ay wi t h the futuredang erousne ss specia l issue if she had the opportunity to chang e the law. She explained, “I t makes
y ou ask that one more question. I t makes y ou g o that one more step, ” which she thought was important beca

use “nothing should be ever taken lightly or without looking at issues when y ou g et to this point. I mean, y ou hold things in y our–the balanc e in y our hand, and y ou have to be able to consider a ll the issues.”
When trial counsel presse d her on whether she could ever honestly answe r “no” to the futuredang erousne ss specia l issue, L ee responde d, “I think I could, y ou know, depending upon what is put
out there

. I try to make all decisions based on what is out there

. I don’t try to–I come at it with no
prec onceive d ideas.” L ee continued, “I mean, I haven’ t been in that position. I t’s hard for me to take [si c] and specula te at this time; but I will try my best to do that, y es.” Trial counsel commented that
L ee had “some hesitation.” L ee answere d , “W el l , I think any time y ou g et to this point that y ou19

would have s o m e h es i t ati on if y ou are a thinking individual.” Trial counsel then asked L ee to explain why

she had sa id that she would “try ” instead of answe ring with a def

inite “y es” or

“no.” [L ee]. I g uess beca

use I am an intelligen t h u m an being –or I like to think that I am–and I know that I probably have something in my head that wouldn’t be allowable or whateve r. I don’t know about what it would be beca use I haven’ t been put in that position. I haven’ t had that question asked. So, y ou know, I ’m try ing my best to think of differ ent things that might make me lean one to the other. I can’ t come up with one, but that doe sn’t mean it’s not there

. [Trial counsel]. Okay . L et me g ive y ou a little more conte x t, okay ? [L ee]. Okay

. [Trial counsel]. Ag ain, a g uilty capital murde rer . Okay ? And I want to put y ou in that chair

. During the course of a Capital Murder trial y ou would see and hear rea lly g ruesome de tails. [L ee]. Yes, ma’ am. [Trial counsel]. You would see autopsy photos, c rime scene photos, he ar the scene descr ibed in detail, rig ht? [L ee]. Right. [Trial counsel]. That’s hard to he ar. [L ee]. Yes, ma’ am. [Trial counsel]. And, y ou know, . . . someone’ s loved one is g one, rig ht? [L ee]. Right. [Trial counsel]. S o y ou’re probably g oing to he ar how

that impacted them a s well. [L ee]. Right. [Trial counsel]. And so y ou’ve hear d all that and y ou’ve seen all that when y ou g et to this first Special I ssue. So they are a guilty capital murdere r. You’ve seen the horrible things that happene d. You’ve seen, y ou know, t h e fa m i ly is very upset. Knowing all t h at , seeing all that, y ou and 11 others deter mined that this person is g uilty of Capital Murder , can y ou ever answe r that question no?20

[L ee]. Icould. [Trial counsel]. Okay

. [L ee]. Icould.
Trial counsel later extended the hy pothetical, asking L ee to ima gi n e that the jury had also
found t he defenda

nt to be a f

uture da ng er. Trial counsel then asked L ee whether she would “eve r consider a

ny thing that would lesse n the blame of that person.” [L ee]. I think I could. You know, ag ain, not being in the position, try ing to fore cast my self ther e, I

would hope that I

could still–and I think I could still–consider other circ umstances, mitigating thing s that happen. [Trial counsel]. Do y ou have doubts? [L ee]. Yes, I

do. [Trial counsel]. Tell me about that. [L ee]. I just–it ’s hard for me to picture once coming to thos e two things that there is something out there . Howeve r, y ou know, it is a possibil ity that it’s out there. [Trial counsel]. Okay . You said it’s hard f or y ou to consider that? [L ee]. I t’s just ha

rd to think of it. Not consider. I mean, that’s probably the wrong word. B ut it’s hard to come up w ith it i n my head r ight now. I

can’ t imagine it. [Trial counsel]. Okay

. [L ee]. But that doe sn’t mean it’s not there

. [Trial counsel]. Sure. But I need to know whether or not y ou can do that. I t’s a g uilty capital murdere r. You have deter mined bey ond a re asonable doubt that they are g oing to be a future dang er. Can y ou ever consider any thing that will lessen the blame of tha t guilty

murdere r? [L ee]. I could consider it if I can see it

. I mean, I d o n ’t k n o w wh at it would be. I don’t what that mitiga tion could be. I don’t know wha t it would be. I just don’t.21

Trial counsel also revisi te d L e e ’ s e xc hang e with the prosec utor about confe ssions, then asked
L ee to imag ine that: she was a juror in a capital- murder ca s e; t h e offe nse was “horr ific”; the
defe ndant had g iven the police a detailed, videotaped confe ssion in w hich he told how and why he
committed the offense, and showed no remorse ; and L ee believ ed t h e co n fe ssion, but she and the
other jurors found that the police had omitted a war ning when they “Mirandized” the defe ndant. L ee
ag ree d with trial counsel that, by omitti ng a re quired wa

rning , the police ha d violated the law. [Trial c ounsel]. So then y ou would be g iven an instruction f rom the Court tha t y ou could not c onsider–y ou have to w holly disreg ard that confe ssion a nd y ou could not consider it for

any purpose. [L ee]. Yes, ma’ am. [Trial counsel]. You said y ou could do that? [L ee]. I t would not be easy

. [Trial counsel]. Of course not. [L ee]. I t would have to be a conscious decision to se t it aside. I think that I can do that. Sitt ing on one of the prior juries we had something simil ar. And to be honest, it came up in delibera

tions but we told them it had to be set aside and it could not be considere d as part of it. I cannot answe r for any body else on the jury

. I can say [t hat it] was not used in my

decision. Oka

y ? I t was not nea

rly to the extent as this one

. Okay ? [Trial counsel]. Okay . And that’s kind of my point. W hat kind of ca se wa s that? [L ee]. I t was on the DU I

. [Trial counsel]. Okay . And now we ’re talking a bout a murder

. [L ee]. Right. I t’s very difficult to unse e, unhear

. So it does have to be a conscious decision to set it aside. I t is hard to do, and I ’m not sure that any body can answe r 100 perc ent that they

do it. I rea lly

can’ t tell y ou that. [Trial counsel]. S o y ou can’ t answer 100 perc ent?22

[L ee]. No. I can s ay t hat it would be something that I would try to do and that I would be consc ious of it, but I cannot sa y that it would not be in there. [Trial counsel]. Okay

. So are y ou telling me y ou would–y ou can’ t say y ou wouldn’t consider it? [L ee]. No, I

can’ t say that I cannot. At this point , the prosec utor objecte d to the form of trial counsel’s question. At the bench
confe renc e that followed, the prosec utor arg ued that t rial counsel had asked an improper
commitment question. The prosec utor further arg ued that, to the extent trial counsel was asking the question as a prelude to a cha l l eng e for cause , trial counsel had not explained the law to L ee and
asked w hether

she could follow it. The tria l court sustained the obje ction.
When questioning resumed, trial counsel reminded L ee that they had been discussing “this
confe ssion” and that trial c ounsel nee ded “to know w here [L ee w as] on that.” [L ee]. Ag ain, as I said, it’s very hard to unhear or unsee; an d i t’s a conscious decision to not take that into consideration. And, y ou know, y ou try to set it aside as best y ou can. I ’m g oing to say that I would probably –ag ain, not being in the situation, it’s hard for me to say definitely that I would be able to set it aside totally

. I would try my best to do so. And that’s about the best answe r I can g ive y ou on it. [Tr i al co u n s el]. Okay

. L et me take it one step further

. Okay ? The confe ssion is what, for y ou, proved the case bey ond a re asonable doubt. [L ee]. Then I would have to say that I would take that into consideration and say that it would be not–I would have t o fi nd either the not g uilty or the not step [si c] or whateve r. Be cause if that’s what tipped the balanc e and it was something that I could s ay that otherwise the case was not proven, then I would have to say that I wo u l d have to g o on the other side. I would say that it was not g uilty , not death p en alty , whateve r, if that wa s the scale

. [Trial c ounsel]. Okay

. So let me just make sure I understand y ou. You’ve hear d a confe ssion. You believe it a hundr ed per cent. [L ee]. Right.23

[Trial counsel]. But y ou also believe that the police missed a w arning

. [L ee]. Right. [Trial counsel]. And this confe ssion is what, for y ou, would prove their case bey ond a re asonable doubt. [L ee]. Right. I f there was not a supporti ng documentation, whateve r, behind that that woul d have cause d me to be on the g uilty [si c], then I would have to say not g uilty beca use it is the deciding fac tor for me

. [Trial counsel]. Well, y ou don’t have–le t’s say y ou don’t have any other supporting documentation? [L ee]. Then I would have to say that there was nothing–the case had not been made.
At the conclusion of L ee’ s voir di re , t ri al counsel challeng ed her for cause on the grounds
that she was “an automatic death penalty juror” who “would not consider future dang er, an d

. . . would not consider miti g ation” and beca use L ee could not “say it’s a hundred perc ent for her that
she could disreg ard the confe ssion.” The trial court denied the challeng e, stating, “B ased on her
demea nor and the thoughtfu l way that she answe red the questions, I think the hesitation that was ref err ed to is an indicatio n , t o m e at l ea st, of an honest ref lection that a person g ives that will seriously consider a ll of the options and take this very seriously .”
The trial court did not abuse its discretion by deny ing appellant’ s challeng e for cause to L ee,
as t he tot ality of her voir dire ex amination contains sufficient evidenc e to support th e trial court’s ruling

. Davis , 329 S.W .3d at 807. To t h e extent L ee vacillated or g ave ambig uous or unclea r

answe rs conce rning her ability to follow the law, we acc ord particula r defe renc e to the trial court’s
decision. Gardner , 306 S.W .3d at 295; Moore , 999 S.W .2d at 400, 407. Fur ther, the trial judge was in the best position to evalua te L ee’ s demea nor and response s. See Davis , 329 S.W .3d at 807. Point
of er ror f ive is overr

uled.24 Vanscoy
I n point of err or six , appellant alleg es that Vansc oy was challeng eable for cause beca use she
indicated that she would be “automatic death” if she had to decide p u n i s h m en t in a case in which
there was “no rea son for a murder or two people wer e murdere d.” He also asser ts that Vansc oy “wa s a disabled juror

in reg ards to her

persona l beliefs when it came to answe ring the m itigation special
issue.”
When she questioned Vanscoy , the prosecutor covered the conce pt of concurre nt causa tion
and its eff ect on a defe ndant’s criminal responsibility , which Vansc oy indicated that she understood. 9
The prosec utor also discussed the punishment-phase sp ec ial issues. Vansc oy indicated that she
understood those specia l is sues and would answe r them acc ording to the law and evidenc e. After discussing the mitigation specia l issue and what kind of evidenc e might be considere d mitigating , the
prosec utor g ave Vansc oy the following hy pothetical: “You and 11 other jurors have just found

someone g uilty of Capital Murder

. I t was a horrible, brutal Capital Murder

. No self-de fense , no
provoca tion from the v ictim, innocent victim, no insanity , no excuse; and y ou found him g uilty of Capital Murder .” Vansc oy ag ree d that: life without parole and death wer e the two available penalties;
her “true fee lings” wer e that she would consider both alterna tives; she would keep an open mind; and
she would not have her mi n d made up one way or another afte r finding someone g uilty of capital
murder.

T h e c o n c e p t w a s r e l e v a n t i n t h i s c a s e b e c a u s e o f e v i d e n c e t h a t v i c t i m A l t o n W i l c o x ’ s m e d i c a l c o n d i t i o n a n d

9 t r e a t m e n t m i g h t h a v e a f f e c t e d h i s c h a n c e s f

o r s u r v i v a l

. S p e c i f

i c a l l y , a t t h e p u n i s h m e n t p h a s e , t h e S t a t e p r e s e n t e d
e v i d e n c e t h a t W i l c o x s u f f e r e d m u l t i p l e s t a b w o u n d s , i n c l u d i n g o n e t h a t p e r f o r a t e d h i s h e a r t ’ s l e f

t v e n t r i c l e
. T h e e m e r g e n c y r o o m s u r g e o n w h o t r e a t e d W i l c o x t e s t i f i e d t h a t t h e h o l e i n t h e l e f t v e n t r i c l e w a s l e t h a l w i t h o u t s u r g i c a l i n t e r v e n t i o n
. H e e x p l a i n e d t h a t W i l c o x ’ s o n l y c h a n c e a t s u r v i v a l h a d b e e n a v e r y r i s k y s u r g i c a l p r o c e d u r e , w h i c h w a s c o m p l i c a t e d b y s c a r t i s s u e o n t h e h e a r t f r o m a n e a r l i e r o p e n h e a r t s u r g e r y
. T h e s u r g e o n s t a t e d t h a t t h e e f f o r t t o s a v e W i l c o x ’ s l i f

e w a s u n s u c c e s s f

u l b e c a u s e t h e r i g h t v e n t r i c l e t o r e o p e n d u r i n g t h e p r o c e d u r e , b u t h e t e s t i f i e d t h a t W i l c o x w o u l d a l s o h a v e d i e d i f h e h a d d o n e n o t h i n g
.25

T ri al co u n s el beg an the voir dire examination of Vansc oy by ref err ing to the State’s hy pothetical and aski n g what her “fe eling s about the death penalty as an appropr iate punishment”

wer e under that scena

rio. Vansc oy responde d, “I think the death penalty should be war rante d unless
there [are] o t h er circ umstances, y ou know, the upbring ing of the person like we had talked about

ear lier. ” W h en trial counsel asked her to elabor ate, Vansc oy stated, “Well, I g uess if, y ou know, they –like we talke d about, that they hadn’t been raised c orre ctly , they hadn’t be en taug ht morals. I think that needs to be, y ou know, a f actor in the decision.”
Trial counsel then emphasized that he was try ing to asce rtain what Vansc oy “would be fee ling rig ht a fter when [she] found this pe rson g uilty ,” and he reminded her that the hy pothetical assumed
espec ially heinous fac ts. Vansc oy answe red, “I think they should g et the death penalty ” beca use “we
don’t have a right” to take another li fe. Howeve r, Vansc oy denied that she would assess the death penalty in ever

y case of capital murder. She explained that she “wo u l d n eed to hear about the
situation. You know, the case itself and exactly what happene d.” Vansc oy continued, “I know that,
y ou know, if they are found g uilty , I would have the death penalty

. I would be thinking about that.
But I would defi n itely want to have hear d, which I would have, all the evidence from both sides.”
Trial counse l continued to question Vanscoy

. [ T ri al co unsel]. Okay

. So when ear lier when [si c] y ou said that y ou felt the dea t h penalty would be wa

rra nted if a life was take n, can y ou tell me more a

bout that? [Vanscoy ]. Well, if a life is ta ken and, y ou know, the evidenc e shows that he or she had re ally done that, I

would definitely

–I could g ive the death penalty

. [Trial counsel]. Okay

. An d I understand. And of course , y ou’d have to be able to consider the full penalty

rang e to be a

death qua lified juror. [Vanscoy ]. That’s rig ht.26

[Trial counsel]. W hat I ’m try ing to f igur e out is would y ou automatically –or would y ou think that only

the dea th penalty would be wa

rra nted if a life was take n? [Vanscoy ]. No.
When tr ial counsel asked her to explain her answe r, Vansc oy stated, “I just think there [are] just circ umstances about the situation that cause d–y ou know, cause d the death, what was g oing on. An d t h en I would either think it was death penalty or life in prison.” Trial counsel resumed questioning V anscoy
. [Trial counsel]

. Okay

. Can y ou tell me what would be important to y ou when y ou said y ou’d have to know what had been g oing on? What’s in y our mind when y ou say that? [Vanscoy ]. Well, I g uess if somebody came in and, y ou know, killed two people just beca use, y ou know, they didn’t like them or something, to me the death penalty would be that bec ause the y

are taking a life w ithout reason. [Trial counsel]. Okay

. So if y o u we re in a situation wher e someone had been–c ommitt ed–and y ou understand that one of the way s to commit Capital Murder is by killing m ore than one person. So if y o u we re s ea t ed on a C apital M urder jury and it was shown that two people had been killed, woul d that mean that for y ou the penalty for that c rime would be only death? [Vanscoy ]. Yes. [Trial counsel]. Okay

. Can y ou think of any other sit uations wher e y ou would fee l that way ? [Vanscoy ]. Not t hat I

can think of. [Trial counsel]. Well, let’s g o–let me g o back to what y ou wer e talking about befor e. You said for n o re as o n
. An d when y ou say somebody had killed somebody for no rea son, what we re y ou thinking about whe n y ou said that? [Vanscoy ]. Okay

. For no rea son is if somebody came in a nd had a g un and came in and saw two people standing there and then decide d to kill them and then decide d afte r that may

be they wanted to rob them afte r–or whateve r, y ou know. Get them out of the wa y , and then c ommit t his unlawful ac t.27

[Trial counsel]. Okay

. And under those circ umstances that y ou just said, would that be an a utomatic death pe nalty

punishment for y ou? [Vanscoy ]. To me it would.
Trial counse l then asked w hether Vansc oy had held he r “de ath pena lty views” he r entire life. [Vanscoy ]. No, not m y

whole life. N o. Probably the last 20 y ear s may

be. [Trial counsel]. All right. And ar e these fee lings that y ou fee l strongly about? [Vanscoy ]. Yes.
After discussing other t o p i cs wi th Vansc oy , trial counsel focuse d on the specia l issues.
Vansc oy stated t hat s he could envision herse lf answe ring “no” to the future-dang ero u s n ess s pecia l issue, and “y es” to the mitigation specia l issue. Vansc oy also stated that she might answe r the mitigation specia l issue “y es” based on merc y alone

. Vansc oy answe red “y es” when trial counsel
asked whether she “[c]ould consider and g ive eff ect to” evidenc e of low intellectual functioning and drug addiction as mitigation. Vansc oy answe red “no” when trial counsel asked whether she “could
consider and g ive eff

ect to” evidenc e of “despera t i o n
. ” Trial counsel then alluded to the “fire example” that the prose cutor ha d used to illustrate the conc ept of c oncurr ent ca usation. [Tria l counsel].

. . .Would y ou consider a causa tion situation like that? Could y ou consider a

nd g ive ef

fec t to that as miti g ation? [Vanscoy ]. No.
At the conclusion of Vansc oy ’s voir dire, trial counsel challeng ed her for cause , arg uing that
her response s to the hy

pothetical he g ave her showed that she was “an automatic death penalty juror.”
Trial counsel further arg

ued that Vansc oy was “mitiga tion impaired” beca use she had answe red “no”
when he had asked whether she could consider an d gi v e ef fec t to evidenc e of desper ation and

causa tion. After hear ing the parties’ arg uments, the trial court stated that it had observe d Vansc oy ’s28

demea nor and r esponses to all the que stions and would deny the cha lleng e for

cause
. The trial court did not abuse its discre t i o n by deny ing appellant’ s challeng e for cause to
Vansc oy , as the totality of her voir dire examination contains sufficie nt evidenc e to support the trial
court’s ruling

. Davis , 329 S.W .3d at 807. The law does no t re q u i re t h at a juror consider any particula r piece of evidenc e to be mitigating

. Hernande z v. State , 390 S.W .3d 310, 315 (Tex. Crim. App. 2012). To the extent Vansc oy vacillated or g ave ambig uous or unclea r answe rs conce rning her ability to f

ollow the law, we acc ord particula r defe renc e to the trial court’ s decision. Gardner , 306
S.W .3d at 295; Moore , 999 S.W .2d at 400, 407. Fur ther, the trial judge was in the best position t o evalua te Vansc oy ’s demea nor and response s
. S

ee Da vis , 329 S.W .3d at 807. Point of err or six is

overr uled.
I n point of err or seven, appellant arg ues that the trial court “er red in failing to allow [hi m]
additional pere mptory challeng es upon his reque st befor e the 12 juror was seate d” beca use the trial t h

court err oneously ref

used to strike Woods, Cooper, L ee, and Vansc oy “and there by forc ed [appellant]

to use one or mor e of his per emptory strikes beca use of the err or.” Appellant’s c laim fails beca use he has not shown that the trial court abused its discretion in deny ing his challeng es for cause to these four juror s. Point of er

ror se ven is overr

uled.
Limit ation on Voir Dire
I n points of err or eig ht throug h ten, appellant complains of the trial court’s ruling s when the
State objected to cer

tain questions that trial counsel attempt ed t o as k of venire members Donna
Vansc oy , Stephanie Cooper, and Audre y Holt du ri ng their individual voir dires. Specifica lly , appellant alleg es that “the trial court err ed in preve nting the defe ndant from acquir ing from [Vanscoy , Cooper, and Holt] information with whi ch t o i ntellige ntly exercise his pere mptory challeng es and29

challeng es for

cause during jury

selec tion.” Concerning Vansc oy , the portion of the rec ord to which appellant direc ts us shows that trial

co unsel did not object on this basis or otherwise make this arg ument to the trial cour t wh en i t disallowed the question at issue. Acc ording ly , he has not prese rved his complaint for our revie w. 1 0
See T E X
. R. A P P
. P. 33.1; Bek endam , 441 S.W .3d at 299–300. Point of error eig ht is overruled. We now turn to points of error nine and ten, concer ning ve nire membe rs Cooper a nd Holt.
We revie w a trial court’s ruling that limit s voir dire questioning for an abuse of discretion, focusing

on whether the appellant proff ere d a proper question reg arding a proper are a of inquiry

. Hernande z , 390 S.W .3d at 315; see Barajas v. Stat e , 93 S.W .3d 36, 38 (Tex. Crim. App. 2002) (trial court has
broad discretion over the proce ss of selec ting a jury and in de termining the propriety of a particula r question). “A trial court reta ins discretion to restric t voir dire questions that are conf using, misleading , vag ue and broad, or are improper commitm ent questions.” Hernande z , 390 S.W .3d at
315. When the trial court “ does not place an absolute limit ation on the substance of an a ppellant’s
voir dire question, but mere ly limit s a question due to its form, the appellant must attempt to rephr ase the question or risk wa iver of the alleg ed voir dire restric tion.” Id

. I n point of err or nine, appellant direc ts us to an exchang e in the rec ord, in which trial counsel

T h e r e c o r d s h o w s t h a t t r i a l c o u n s e l a s k e d t h e f o l l o w i n g q u e s t i o n o f V a n s c o y
. 1 0

N o w , w h e n w e t a l k a b o u t t h i s m i t i g a t i o n , w h e r e w o u l d y o u

– a s f a r a s t h e w a y t h i s g o e s , w h e r e w o u l d y o u

– I k n o w i t s a y s t a k i n g i n t o c o n s i d e r a t i o n a l l t h e e v i d e n c e , i n c l u d i n g t h e c i r c u m s t a n c e s o f t h e o f f e n s e , D e f

e n d a n t ’ s c h a r a c t e r a n d b a c k g r o u n d , p e r s o n a l m o r a l c u l p a b i l i t y o f t h e D e f e n d a n t , w h e r e w o u l d y o u e x p e c t t h e m i t i g a t i o n t o c o m e f r o m ?
T h e p r o s e c u t o r o b j e c t e d

. A t t h e b e n c h c o n f e r e n c e t h a t f

o l l o w e d , t h e p r o s e c u t o r a r g u e d t h a t t r i a l c o u n s e l ’ s q u e s t i o n w a s r e p e t i t i o u s , c o n f

u s i n g , a n d m i s l e a d i n g , n o t i n g t h a t “ t h e r e m a y o r m a y n o t b e m i t i g a t i o n i n a c a s e d e p e n d i n g o n t h e e v i d e n c e
. ” T r i a l c o u n s e l r e s p o n d e d , “ I ’ m a s k i n g h e r i f s h e a s s u m e s t h a t w e ’ r e g o i n g t o b r i n g i t ” b e c a u s e “ t h e n t h a t w o u l d b e p u t t i n g t h e b u r d e n o n u s , ” a n d t h a t “ [ t ] h e r e i s n o a s k e d a n d a n s w e r e d i n v o i r d i r e
. ” T h e t r i a l c o u r t s u s t a i n e d t h e o b j e c t i o n , a n d t h e b e n c h c o n f e r e n c e e n d e d w i t h n o a d d i t i o n a l a r g u m e n t f r o m t r i a l c o u n s e l

.30

g ave Coope r the following hy pothetical. [Trial counsel].

. . . I ’d like y ou to consider that y ou sat as a juror on a differ ent Capital Murder case and y ou know that–and the J udg e instructs y o u t h at Capital Murder is an intentional murder wher e it was the Def endant’ s conscie nce [si c] desire to kill and the Def

endant acc omplished that desire along with some other serious crime. L ike, for example, one of the things [t he prosec utor] mentioned was killing a police off icer . You know that could be Capital Murder. [C ooper]. Right. [Trial counsel]. So y ou and the 11 other jurors hear d all the evidenc e and decide d bey ond a rea sonable doubt that the Def endant in that case intentionally or knowing ly killed – [P rosec utor]. Objection. Not knowingly

. [Trial counsel]. I ntentionally killed an innocent victim who di d not deser ve to die. Are y ou with me? [C ooper]. Yes.
Trial counsel then listed a litany of possible leg al defe nses or justifications to criminal liability
for the offe nse and e mphasized that the jury had not f ound any to e x ist. Reiterating that there wer e “[n] o defe nses” and stating that there wer e no “other circ umstances,” t ri al counsel additionally emphasized that the murder was “[j] ust a senseless, cold-blooded killing.” Trial counsel continued, asking the question that is the subject of point of e rror nine.
Assume that y ou and the 11 other jurors all ag ree d bey ond a rea sonable doubt that all that’s true. I ’m g oing to a sk y ou about y our fee lings. What are y our fee lings in tha t hy pothetical about the death penalty being the only appropr iate reme dy for that g uilty murdere r?
The prosec utor objected to th e form of the question. At the ensuing bench confe renc e, the
prosec u t o r argue d inter alia that it was an improper commitment question and it was misleading
beca use it sug g ested that there was only one appropr iate pena lty for c apital murder . The trial court31

“sustain[ed] t he objec tion to the way the question was a sked.” [Trial counsel]: Does the Court h ave a rec ommendation as to how I can ask the question that would be non-objec tionable?
The Court: I can’ t. I can’ t give y ou sug g estions on how to ask them. [Trial counsel]: I ’d like to make a bill. The Court: Okay

. Trial counsel resumed her voir dire of Cooper without attempting to re p h ra se t he question. At the conclusion of Cooper’s voi r di re, trial counsel made a bil l of exception, then cha lleng ed the ve nire
member for cause
. After the trial court denied t h e challeng e for cause , trial counsel exercised a
pere mptory

strike to remove Cooper fr om jury service

. T he trial court did not place an absolute limit on the substance of trial counsel’s quest i o n
. Rather, the trial court mere ly limit ed the question due to its form, and trial counsel did not there afte r attempt to rephr ase the question. Acc ordi ng ly , appellant waived any complaint conce rning the alleg ed voir dire restric tion. See H ernandez , 390 S.W .3d at 315. Point of error nine is overr

uled.
The rec ord of venire member Holt’s individual voir dire shows that, afte r inquiring into Holt’s
“fe eling s on the dea

th penalty ,” trial c ounsel then pursue d a diffe rent line of que stioning. [Trial counsel]. Okay . You said y ou live here in Ang leton. I s that rig ht? [Holt ]. Yes. [Trial c ounsel]. Okay

. Do y ou have a fee l f or what the community thinks a bout the death pe nalty ? Do y ou think most of the c ommunity is in favor of it? The prosecutor objected to “re levanc y and im proper form of the questi on by venire [ s i c] about the Ang leton community .” A be nch conf ere nce f ollowed. [Trial counsel]: Your Honor, this is not a witness in a case . I t’s a juror in a Capital32

Murder case
. There is no rele vancy objection to deter mining a juror’s fee lings on all the issues at stake in this ca se. Voir dire is intended to be ver y broad.
The Court: I ag ree . But to elicit fa cts. [P rosec utor]: I t’s her fee lings, not a community ’s fee lings, on their perspe ctive in an eff ort to put pressure on the venire man [sic]

. The Court: I ’m g oing to sustain the objec tion as to the community ’s fe eling s. Holt’s voir dire examination resumed. At its conclusion, trial counsel challeng ed h er for

cause
. After the trial court denied the challeng e, trial counsel exercised a pere mptory strike to remove Holt from jury

service

. Assuming that appellant prese rved the alleg ed voir dire err or for appellate revie w, we find no abuse of the “broa d discretion” that a trial court has over the proce ss of selec ting a jury

. See Barajas , 93 S.W .3d 36, 38–39 (“The main rea son for [t he trial court’s broad discretion] is that voir dire could
g o on fore ver without rea sonable li mits.”). Appellant has not shown that Holt’s pe rce ptions of t he community ’s views about the death penalty was “an issue applicable to the case ” or that his question

was rea sonably desig ned to uncover g rounds for a challeng e for cause
. See i d

. at 38–39. Point of

err or ten is over

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

Deliver ed: Marc h 9, 2016 Do Not Publish