Jones, Quintin Phillippe AKA Jones, Quinton

Death Opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. 74,060

QUINTIN PHILLIPPE JONES, Appellant

v.

THE STATE OF TEXAS

ON DIRECT APPEAL

FROM TARRANT COUNTY

Cochran, J., delivered the opinion of the Court, joined by Meyers, Price,

Hervey and Holcomb, JJ. Keller, P.J., joined by Keasler, J., filed a concurring

opinion . Womack, J., joined by Johnson, J., filed a dissenting opinion .

O P I N I O N

Appellant was convicted in February 2001 of capital murder. Tex. Penal Code

Ann. §19.03 (a). Pursuant to the jury's answers to the special issues set forth in Texas

Code of Criminal Procedure Article 37.071, §§ 2(b) and 2(e), the trial judge sentenced

appellant to death. Art. 37.071 §2(g). (1) Direct appeal to this Court is automatic. Art.

37.071 § 2(h). Appellant raises sixteen points of error. We affirm.

I. Miranda violation claim.

In his first point of error, appellant claims the trial court erred by admitting into

evidence at punishment a written confession taken in connection with an extraneous

offense. A ppellant claims that the statement was taken in violation of Miranda v. Arizona (2)

because he was not informed of his rights until the written statement was prepared pursuant

to appellant's oral statements and appellant was about to sign it. We agree.

A . The evidence at the guilt-innocence stage.

We begin with a summary of the evidence. The victim was appellant's eighty-three-year-old great-aunt, Berthena Bryant. Despite her income of less than $500.00 a month,

Bryant occasionally made small loans to various people, including appellant, and she kept a

ledger recording the loans and their repayments. On September 10, 1999, Bryant told her

sister, Mattie Long, that she had refused appellant's request for a loan earlier in the day.

Long testified that Bryant seemed uneasy about her conversation with appellant. The next

morning, Bryant's body was discovered in her home by neighbors. A bloody, broken

baseball bat was recovered at the scene. Bryant's car was located a half mile from her

house and her purse and wallet were found in the car. The medical examiner, Dan

Konzelman, testified to the existence of defensive bruising on Bryant's wrists and arms.

Konzelman also described Bryant's various abrasions, bruises, and fractures, which

included a broken collarbone and shoulder blade, two fractured ribs, and a fracture at the

base of the skull.

Appellant was arrested for outstanding traffic warrants and for possession of a

controlled substance on the same day that Bryant's body was discovered. While in custody,

appellant was questioned twice about Bryant's murder by Detective Ann Gates. The first

interview took place on the day he was arrested. Gates read appellant his Miranda warnings

when she noticed that appellant had no reaction to the news of Bryant's death. Appellant

gave a statement denying any involvement in Bryant's murder and claiming an alibi. The

next day, after being informed of his rights again, appellant accompanied Gates to various

locations in an effort to corroborate his alibi. That same day he took a polygraph

examination.

When appellant's alibi information did not check out and the polygraph indicated

deception, Gates interviewed appellant a second time. Gates again read appellant his

Miranda rights, appellant agreed to waive them, and appellant gave a second written

statement (the "Gates statement"). In the Gates statement appellant stated that he had

"another personality" named James who lived in his head. He stated that James had started

living in his head since age ten or eleven when he was molested by his brother and cousin.

Appellant stated that James went to Bryant's house to steal some money. After Bryant let

him in and James could not find her purse, appellant stated that James lost his temper and

started hitting Bryant with a bat she kept by the door. After that, James found Bryant's

purse and left in Bryant's car. Appellant stated there was $30.00 in Bryant's purse.

Appellant then went to a friend's house and bought drugs with the money. He later left

Bryant's car in a parking lot. Appellant does not object to the admission of the Gates

statement.

B. The written statement concerning extraneous murders admitted at the

punishment stage.

Appellant's complaint is directed at the admission of statements he made to Texas

Ranger Lane Akin nine or ten days later in which he implicated himself in two extraneous

murders that were introduced at the punishment phase of his trial. Texas Ranger Richard

Johnson testified at the suppression hearing that he investigated the homicides of Marc

Sanders and Clark Peoples. Sanders' and Peoples' bodies were both found in the Trinity

River in Wise County in the first week of June, 1999. Based on a lead from appellant's

sister Keisha Jones, Johnson and Akin obtained a search warrant for appellant's residence,

which was executed in the early morning hours of September 22, 1999.

Akin left during that search to meet with appellant at the Tarrant County Jail,

together with a Tarrant County Sheriff's deputy, in the early hours of the morning. Akin

informed appellant that he was investigating the murders of Sanders and Peoples. Appellant

admitted having known the victims, but denied any involvement in their murders. Akin then

asked appellant what he would say if "they" (meaning Akin and his fellow investigators) told

him that they had already talked to appellant's good friend, Ricky "Red" Roosa, and that Red

had told them that appellant was the "bad guy," primarily responsible for the murders. At

that point, appellant orally admitted his involvement in the two murders. As appellant

confessed and described details of the offense, Akin wrote down "verbatim" what appellant

said on a statement form, asking questions and transcribing the answers as they went along.

The entire interview lasted about an hour-and-a-half. When appellant finished his story,

Akin got up, sat down next to appellant, and went over the legal rights that appeared at the

top of the written form. Then Akin and appellant read the statement together and appellant

corrected mistakes, initialed revisions, and signed the statement at the bottom. Appellant's

written statement (the "Akin statement") appears in the Appendix to this opinion.

C. The failure to Mirandize appellant before interrogating him led to constitutional

error in the admission of his written statement at trial.

Appellant argues that Akin's failure to inform him of his rights at the outset of the

interrogation violated his Fifth Amendment rights as protected by Miranda and that this

violation was not harmless. The State argues that, even though appellant was not warned

until after he made his oral statement, under Oregon v. Elstad , (3) appellant's receipt of the

required warnings before signing the Akin statement rendered it voluntary and admissible.

In Miranda , the United States Supreme Court was unequivocal in holding that an

accused, held in custody, must be given the required warnings "prior to questioning." (4) A

failure to do so results in forfeiture of the use of any statement obtained during that

interrogation by the prosecution during its case-in-chief. (5)

As the State points out, the failure to comply with Miranda during a custodial

interrogation does not necessarily taint all subsequent confessions. In Elstad , the 18-year-old defendant was implicated in the burglary of a friend's family home in which $150,000

worth of art and furnishings were taken. (6) Two local officers were dispatched to the

defendant's home with an arrest warrant. They found the defendant partially dressed in his

room. They asked him to dress and accompany them to the living room. One of the

officers asked the defendant's mother to step into the kitchen where he informed her that

they had a warrant for her son's arrest for the burglary of a neighbor's home. The other

officer waited with the defendant in the living room. The officer who remained with the

defendant in the living room later testified:

I sat down with Mr. Elstad and I asked him if he was aware of why Detective

McAllister and myself were there to talk with him. He stated no, he had no

idea why we were there. I then asked him if he knew a person by the name of

Gross, and he said yes, he did, and also added that he heard that there was a

robbery at the Gross house. And at that point I told Mr. Elstad that I felt he

was involved in that, and he looked at me and stated, 'Yes, I was there.' (7)

After Elstad was taken to the police station and advised of his Miranda rights, he indicated

he wanted to visit with the officers. He then gave a full statement describing his

involvement in the burglary. (8) At trial, Elstad moved to suppress the oral statement ("I was

there") and the written statement, claiming the oral statement made in response to

questioning at his house "let the cat out of the bag" and tainted the later written confession

as "fruit of the poisonous tree." (9)

The Supreme Court held that while Elstad's unwarned statement made at his home

must be suppressed, the alleged "fruit" of a noncoercive violation might not be suppressed

if it was given voluntarily. (10) A failure to give Miranda warnings where there has not been

any actual coercion or circumstances calculated to undermine the suspect's ability to

exercise his free will does not so taint the process that a later voluntary and informed

waiver will not be effective. (11) The relevant inquiry is whether the later, properly warned

statement was voluntarily made. "As in any such inquiry, the finder of fact must examine

the surrounding circumstances and the entire course of police conduct with respect to the

suspect in evaluating the voluntariness of" a subsequent warned statement. (12)

Examining "the surrounding circumstances and the entire course of police conduct

with respect to [appellant] in evaluating the voluntariness" of appellant's written statement,

we cannot place the Akin statement in the same category as the written statement at issue in

Elstad . (13) In Elstad , the unwarned oral statement was elicited almost inadvertently. The Supreme Court noted that the brief stop in the living room was not for

the purpose of interrogating the suspect, but was to notify the suspect's mother of the

reason for the arrest. (14) The Court also suggested that the failure to give the Miranda

warnings may have been either the result of confusion about whether the suspect was yet in

custody or a desire to avoid what would appear to be an alarming police procedure before

the officers had informed the suspect's mother about his arrest. (15)

By contrast, the circumstances in the instant case reflect, at the very least, a serious

misunderstanding by law enforcement, not about whether appellant was in custody, but of

the dictates of Miranda. (16)

Further, in contrast to Elstad where the initial unwarned

statement took place at the defendant's home and the warned statement was given after

transporting the defendant to the police station, the unwarned and warned statements in this

case were given during a nearly undifferentiated single event, taking place in the same room

as an uninterrupted and continuous process. The written Akin statement was literally a

transcription of appellant's unwarned oral statements. Appellant did not make a second

statement after he finally received his Miranda warnings; he simply signed the written

statement that he had dictated to Akin before he was warned. To apply Elstad here and

declare the Akin statement admissible by virtue of the late admonishment of the required

warnings would undermine the spirit and intent of Miranda . (17) The waiver of rights given in

connection with the Akin statement was not constitutionally valid in light of the

circumstances and entire course of police conduct.

The State argues that giving appellant his Miranda warnings after he had verbally

confessed but immediately before signing the written statement was constitutionally

adequate under this Court's opinions in Dowthitt v. State (18) and Allridge v. State . (19) In

Dowthitt , as here, the defendant objected to the admission of a statement he made in which

the required warnings were not given before the interrogation but were given before the

defendant signed the written statement. (20) We rejected the defendant's claim, stating that

"[b]ecause a written statement is not 'obtained' (because it is not admissible) until it is

signed, giving the required warnings before the accused signs the statement meets the

statutory requirements ." (21) Dowthitt was based on Article 38.22 alone; this Court's

discussion centered solely on the defendant's interpretation of the statute and explicitly

"assum[ed] the federal constitutional requirements in Miranda were met." (22) Allridge ,

relied upon by the Court in Dowthitt , was also based solely on Article 38.22. (23) The

discussion of Article 38.22 in those cases does not apply to a claim that a defendant's

federal constitutional Miranda rights have been violated.

The State also argues that a defendant is not necessarily "in custody" solely because

he is questioned while incarcerated. The State cites cases from several jurisdictions which

have held that there must be a change in the inmate's surroundings or an added imposition

on his freedom of movement before he is "in custody" for Miranda purposes. (24) Appellant

was incarcerated in the Tarrant County Jail under suspicion for capital murder when he was

transported to another part of the jail in the early hours of the morning to meet Ranger Akin

and another officer. He was taken to a small (approximately 8' x 12') interview room to

meet with two officers who informed him that they were investigating the Sanders and

Peoples murders. After five or ten minutes, Akin asked appellant what he would think if

"they" had been told by appellant's good friend "Red" that appellant had the "primary

responsibility" and was the "bad guy" in the two murders. This was a classic police

"interrogation" environment. Under these circumstances, appellant was clearly in custody

for purposes of Miranda when he gave the Akin statement. (25) Thus, the Akin statement,

taken in violation of the Fifth Amendment, should not have been admitted at the punishment

phase of appellant's trial. (26)

D. This constitutional error was harmless beyond a reasonable doubt.

The final question is whether appellant was harmed by the constitutional violation. (27)

Reversal is required unless we can determine, beyond a reasonable doubt, that the failure to

suppress the Akin statement did not contribute to the jury's verdict at the sentencing

phase. (28) If there is a reasonable likelihood that the error materially affected the jury's

deliberations, the error was not harmless. (29) The reviewing court should "calculate, as nearly

as possible, the probable impact of the error on the jury in light of the other evidence." (30)

We focus upon the probable impact that admission of this statement had upon the

punishment phase. Had the Akin statement concerned the capital murder offense for which

appellant was charged or had it been admitted during the guilt-innocence stage, this Court

would be hard-pressed indeed to find it harmless error. However, the fact that the

statement was offered only during the punishment stage does affect our analysis because, at

the punishment stage of a capital murder trial, the issue is not whether appellant did or did

not commit the Sanders and Peoples murders. Instead, the special issues are predictive and

normative: 1) would appellant probably commit future criminal acts of violence that would

constitute a continuing threat to society; and 2) whether, taking into consideration all of the

evidence, there are sufficient mitigating circumstances to warrant a life sentence rather

than a death sentence. (31) The harmless error rule "'promotes public respect for the criminal

process by focusing on the underlying fairness of the trial rather than on the virtually

inevitable presence of immaterial error.'" (32) Thus, we focus upon the impact that this error

might have had upon the jurors' consideration of those special issues.

In conducting this analysis in the context of a Miranda error, we must "judge the

magnitude of the error in light of the evidence as a whole to determine the degree of

prejudice to the defendant resulting from that error." (33)

Therefore, we must assess the probable weight a juror would place upon the

improperly admitted statement. To do this, we assess the independent proof of appellant's

participation in the extraneous murders. (34) The State established appellant's involvement in

the Sanders and Peoples murders by several sources independent of the Akin statement,

including the testimony of John Williams, Keisha Jones, the defense expert Dr. Finn, and

the State's expert, Dr. Price.

John Williams testified that appellant had dated Williams' mother, Paula Freeman,

since Williams was nine years old and that appellant had lived with them for several years.

Williams testified that one day, while his mother was at work, appellant told him to go to a

friend's house because appellant might "do something bad that he would have to go to jail

for." Williams and his little brother went to a neighbor's house a block away. When

Williams returned to his house, appellant and Ricky "Red" Roosa (who had been with

appellant before Williams left) were gone but there were dark brownish spots on the

carpets and walls that appeared to be blood. A criminologist for the DPS Crime Lab

testified that tests confirmed the existence of human blood on the walls, carpet, and on and

under the cushions in the couch at appellant's residence.

David Walker with the Wise County Sheriff's Department testified that they had few

leads after several months of investigating the Peoples and Sanders murders. The first lead

came when Keisha Jones, appellant's sister, told her own probation officer, after her

brother's arrest, that appellant "knew something" about the murder of Peoples and Sanders.

After speaking with Keisha, Walker began preparing an arrest warrant for Ricky "Red"

Roosa, and Rangers Akin and Johnson obtained a search warrant for appellant's residence.

Paula Freeman testified for the defense. She stated that she and appellant had lived

together for about three or four years. She testified that all of appellant's wrong-doing was

Red's fault and that appellant was heavily influenced by Red. (35) She stated that appellant was

trying to stay away from the gang and out of trouble, and that he would not have done

anything if not for Red's influence. She testified that appellant was affectionate with her

children, was "a really good person [who] [j]ust went the wrong way," and she asked the jury

to spare his life. On cross-examination, Freeman testified that she found blood stains on

the walls and the carpet of her house. She stated that when she came home and saw the

stains, she called appellant who told her he had been in a fight with his friend. The next

time she saw appellant, he wanted money to leave town.

Appellant's sister, Keisha Jones, was also called by the defense. On cross-examination, Keisha stated that appellant had talked to her "somewhat" about the Sanders

and Peoples murders, and that she, in turn, had talked to her probation officer and Rangers

Akin and Johnson about what he had said. Keisha testified that appellant told her that he was

talking to Peoples in the living room when Red came from behind and hit Peoples with a

barbell. Red then threatened appellant that if he did not help "finish what he started," he

would hurt Freeman and her son. Keisha admitted that she had not mentioned Red's threat

when she gave her statement to the police but did when she testified before the grand jury.

Keisha testified that although she originally told the rangers that Sanders was forced to sit

on the couch and watch while they killed Peoples, she later learned from Freeman that

Sanders had remained in the car and appellant went out and got him after Peoples was killed.

Keisha also testified that she was mistaken when she told the rangers that appellant told her

that he and Red had committed the murders for money, jewelry, and crack. She explained

that appellant and Red took these things after the murders, but that was not appellant's

original intent. Finally, the State established through Keisha's cross-examination that

appellant had told her that Sanders and Peoples arrived at appellant's house in a car, and that

appellant and Red placed Sanders' and Peoples' bodies in a car after they were murdered. (36)

Keisha Jones' testimony of what appellant had told her about the double murder was

fully admissible and mirrored, to a large extent, appellant's written statement to Akin. In

both, appellant admitted his participation in the murders, yet minimized his own role. In

both, appellant said Red was the main actor and the actual killer of Peoples and Sanders. In

both, appellant stated that Red hit Peoples in the head with a barbell. In both, appellant

stated that the victims arrived in a car which was used to transport the bodies away from

appellant's residence after the murders. Keisha's testimony added: 1) that Red made an

explicit threat against appellant; 2) that she initially told police that Sanders was forced to

sit on the couch and watch Peoples' murder; and 3) that she initially told police that

appellant's and Red's motive for the murders was robbery. Although appellant's statement

to Akin added more detail to the events surrounding the double murder, appellant's

voluntary, noncustodial statements to his sister constitute an unequivocal admission of his

participation in Peoples' and Sanders' deaths.

The defense also called psychologist Dr. Raymond Finn who had interviewed and

evaluated appellant. Finn acknowledged appellant's participation in Sanders and Peoples

murders and agreed that appellant's behavior in those murders was manipulative "to some

extent."

The State called several witnesses in rebuttal, including Dr. Randall Price, a clinical

and forensic psychologist, who had interviewed and evaluated appellant. Price testified

about a psychopath's view of right and wrong and discussed appellant's failure to accept

responsibility for his actions as one of the stronger traits of a psychopath. He pointed to

appellant's blaming of his alter ego, James, for Bryant's death and his blaming of Red for

Sanders' and Peoples' deaths. Price also testified that appellant did a "double denial of

responsibility" when he told Price that "James wouldn't have killed his aunt if Red hadn't

made him help kill Sanders and Peoples." Appellant told Price that he chose to go along

with Red because of his desire to get drugs, but that it was Red's idea to kill Sanders and

Peoples. Appellant admitted to Price that he felt worse about killing Sanders because he

and appellant were childhood friends.

In summary, the jury knew of appellant's involvement in the murders through

multiple sources unrelated to the Akin statement. (37) Although the Akin statement fills in

some details not included in the other evidence, appellant's participation in the murders is

well established through other witnesses and evidence. Despite the fact that the statement

contained some prejudicial evidence not reported by other sources, (38) the statement did not

carry the weight a confession might normally bear in light of the volume and weight of the

other evidence against appellant on the future dangerousness issue. Indeed, it was

established at the guilt stage that appellant brutally killed his elderly aunt by beating her

with a baseball bat. Evidence showed that appellant regarded Ms. Bryant as his favorite

aunt and that she had treated him kindly over the years. Nonetheless, he killed her so he

could steal whatever money she had in her purse to purchase drugs. In addition to the

evidence introduced at the guilt or innocence phase of the trial, the State offered

considerable evidence at the punishment stage. Appellant was convicted of several

offenses as a juvenile, including an assault of two teachers, possession of a handgun, and an

assault on another student by setting fire to her hair . One of the teachers assaulted by

appellant, Mark Turner, described appellant's resistance to the teachers' efforts to restrain

him: "[appellant was] just going crazy, just punching and biting and snarling . . . like the

Tasmanian Devil." It took five male teachers and a police officer to restrain and handcuff

appellant. Appellant was not allowed to return to the school.

Substantial evidence was introduced of appellant's membership in the Hoova Crips

gang. Photographs of appellant's many gang-related tattoos were admitted into evidence. A

Fort Worth police officer with experience in the police department's gang unit testified at

length about the gang significance of appellant's tattoos. He described nearly all of the

tattoos as referring to the Five Deuces Crips gang or the Hoova Crips gang. Thus, even

without the two extraneous murders, the evidence of a brutal murder, of multiple assaults,

and of gang membership supports the jury's conclusion that appellant was a future danger

and that mitigating circumstances did not warrant a life sentence.

We look also to the content of the erroneously admitted statement. Although

appellant admitted his participation in the two extraneous murders in the Akin Statement,

that statement was replete with self-serving assertions of how Ricky "Red" Roosa was the

primary actor and appellant simply did what Red told him to do. When discussing the

actual murders, appellant stated:

When little Boo [Clark Peoples] walked in, Red, Ricky, hit him, little Boo,

with a barbell. He hit him more than three times. Little Boo was hollering.

He fell to the floor. Red told me grab him and hold him. I held little Boo

down while Red choked him with his hands. Red started hitting little Boo

harder and harder. Red was hyped from this shit. Red told me to bring a belt

to tie little Boo. I took a braided leather belt out of my pants. Red tied little

Boo with the belt. Red told me to help move little Boo out of sight. We

moved little Boo into the back room. ... Marc [Sanders] came in the house

and Red hit him in the head with the barbell. Red was mad because it took

Marc a long time to give up. Red kept on hitting Marc until he fell. Red took

the barbell a[nd] pushed it down against Marc's neck. He told me to bring

something to tie Marc up with. I brought him a white extension chord [sic].

We tied him up.

Appellant stated that after both men were dead, he helped Red put their bodies into Peoples'

car and Red told appellant where to drive the car to dispose of the bodies in a river. While

this statement contains some details that were not otherwise testified to by other witnesses

as set out below, it contains a wealth of mitigating facts about appellant's role in the double

murders. If believed, it diminishes and limits other evidence of appellant's participation in

the extraneous murders. It also supports the basic defensive theory at the punishment stage

that it was Red's bad influence that set appellant down the path toward his alter ego's

murder of his aunt.

Under a Chapman analysis, we may also consider the extent to which the error was

emphasized by the State. (39) In closing arguments, the State referred to the Akin statement

twice. The first prosecutor addressed the voluntariness of the statement and pointed to

other sources of evidence supplying the same information as that contained in the

statement:

The issue of voluntariness is before you again. The issue of

voluntariness of the defendant's statement, and I want to address that head-on

with you.... I put together here every piece of evidence that will show you

how many times the defendant was specifically given Miranda warnings....

And no fewer than one, two, three, four, five, six, seven times from

September 11 to September 21 st did the defendant have someone go over his

adult warnings with him. I imagine he was qualified, at that point, to give

them to somebody else. I would imagine he knew them by heart by then.

But let's say one or two or three of you decide that you don't like the

way Ranger Akin took the statement. For those of you who decide that, you

know that [appellant] admitted everything to Keisha. And you have her

testimony on that issue, too. So that one shouldn't hang you up at all.

Whether you come down on the side that, yes, it was a knowing waiver, he had

six, seven opportunities to hear those before he talked to the Ranger; or, no,

it wasn't voluntary, and you want to go off on what Keisha had to say.

The second prosecutor pointed to the Akin statement as evidence refuting the notion that

appellant was surprised when Red killed Peoples:

And counsel for the defense says, well, it was a surprise to this

defendant that Red or Ricky Roosa, was going to kill Clark Peoples. Well,

you know in his statement, and I ask you to look at his statement, because

what he says is Ricky Roosa asked me, do you know anyone with money. And

that's where it begins.

Although we find this reference to the erroneously-admitted statement somewhat troubling,

it was a response to the defense closing argument concerning appellant's minor role in the

double murder and more of a rhetorical flourish ("And that's where it begins") than any

disparagement of the defensive theory.

Further, the Akin statement by no means belittled appellant's overall mitigation

case-which rested on the proposition that appellant suffered from a dissociative mental

disorder manifested in a second personality called "James." Defense witnesses Keisha

Jones, Paula Freeman, and Dr. Finn each testified about the presence of appellant's alter

ego, James. James was made to kill appellant's aunt, but only because Red had appellant

help kill Sanders and Peoples. Neither at trial nor on appeal does appellant argue that there

was any dispute that he had, in fact, participated in the murder of Sanders and Peoples. We

find that there were no collateral implications, detrimental to appellant's defense, that

stemmed from the taking or admission of the Akin statement itself. (40)

Thus, we cannot conclude that the jury would have placed any particular weight upon

the Akin statement when deliberating on the special punishment issues, given the quantity

and quality of the other admissible evidence which supports their findings. (41)

We are confident, beyond a reasonable doubt, that the erroneous admission of the

Akin statement did not materially contribute to the jury's finding that there is a probability

that appellant would commit criminal acts of violence that would constitute a continuing

threat to society. (42) We are also confident that, had the Akin statement not been erroneously

admitted into evidence, there is no reasonable likelihood that the jury might have returned

an affirmative answer to the mitigation special issue.

We emphasize that a defendant's confession is generally likely to have a profound

impact on a jury, especially at the guilt stage of a trial. (43) Nonetheless, given the evidence

and circumstances in this particular case, the admission of the Akin statement during the

punishment stage was harmless beyond a reasonable doubt. Point of error one is overruled.

II. Claims concerning jurors.

A. Claim concerning the discharge of a juror.

In his second point of error, appellant claims the trial court erred by refusing to

grant appellant's motion for mistrial upon learning that a juror knew, and would be affected

by knowing, the father of the victim of an extraneous murder presented at punishment.

During the guilt or innocence phase of trial, juror David Guminski reported that he

recognized Ed Sanders, who was present in the courtroom, as a former coworker. Sanders

was the father of Mark Sanders, but Guminski was not aware of Sanders' connection to the

case. Addressing the court in chambers, Guminski stated that he had not formed any

opinions about Sanders as an audience member or a witness and did not believe he would be

biased one way or the other. On the basis of this information, appellant asked the court to

discharge Guminski or, alternatively, to grant a mistrial. The court asked the parties to

brief the options over the weekend. Upon reconvening, appellant proposed that no evidence

be offered about Sanders' son. Appellant also asked that he be allowed to question

Guminski to determine possible bias. Appellant concluded by asserting that the only real

remedy was a mistrial. The court denied his motion for a mistrial, but granted his request

to call Guminski for additional questioning.

Guminski testified that Sanders had been his supervisor at the Colonial Country

Club. He stated that they were on friendly terms at work, but did not have a social

relationship, and that he had not had any contact with Sanders in the past year-and-a-half.

Guminski testified that he had "a little bit of uneasiness" about knowing a potential witness

and further stated that if he were to learn that Sanders had suffered some type of loss, he

would probably have more empathy toward him than he would toward a stranger. Appellant

renewed his motion for mistrial and, in the alternative, asserted that Guminski was

"impaired." The court denied his requests, and Guminski was questioned further. Guminski

explained his uneasiness as the result of worrying that he had overlooked Sanders' name on

the witness list. He also testified that although he believed he could be impartial, he could

not help "but think a little bit of empathy is going to leak out in [Sanders'] favor." Appellant

re-urged his motion for mistrial as the only appropriate remedy. As an alternative,

however, appellant requested that Guminski be excused. The court granted appellant's

alternative request and excused Guminski. Appellant now claims on appeal that the remedy

of discharge was inappropriate because bias is not a disability under Article 36.29(b).

Appellant's point of error complains of the trial court's failure to grant his motion

for mistrial. Appellant does not, however, present any argument or authority in support of

his claim that the mistrial should have been granted. Appellant has therefore failed to

adequately brief this mistrial issue. Tex. R. App. P. 38.1(h).

Appellant's argument and authorities are all directed toward his contention that the

trial court's discharge of Guminski was inappropriate under Article 36.29. Although

appellant argued at times before the trial court that discharge under Article 36.29 would be

inappropriate, he nonetheless proposed discharge as an alternative to mistrial at least three

times. Because appellant requested the discharge as an alternative to mistrial, he is now

estopped from complaining about it. (44) Appellant had the option of contending at trial that

mistrial was the sole legal and appropriate remedy, and he could have declined to suggest or

support any alternatives. By proposing alternatives he is estopped from complaining on

appeal about the judge having accepted one of them. (45) Parties are often faced with difficult

choices, but facing a tough dilemma does not create a claim or excuse a party for the option

chosen. (46) Point of error two is overruled.

B. Claim concerning the definition of "criminal acts of violence."

In his third point of error, appellant claims the trial court erred by instructing a

prospective juror that the definition of "criminal acts of violence" includes a threat of

violence. During appellant's voir dire of a prospective juror, the following exchange

occurred:

[Defense counsel]. I want to point out one other thing. We are not talking

about - it says the probability is, would he commit criminal acts of violence.

It does not say, with threats of violence. It doesn't say, would get in fights. It

said, would commit criminal acts of violence. That means a criminal act

involves violence. Common words are your use and understanding. You

understand it does not say a threat of violence or was there misconduct. It

has to be a criminal act of violence.

[Prosecutor]. Judge, I am going to object. I think I am going to object

because I think act does include speech, and certainly a threat of violence

may be a criminal act under the law.

The trial court sustained the State's objection, and upon a motion by the State to instruct the

juror to disregard, the court instructed the juror:

The jury will be looking at acts of violence and inasmuch as a threat involves

conduct, it could be an act of violence depending on what the jury decides.

Appellant objected to the court's instruction, arguing that a threat was not a criminal act of

violence. The court overruled appellant's objection.

After properly reminding the venireperson that the jury would be "looking at acts of

violence," the remainder of the instruction clarified that it would be in the discretion of the

jury to decide whether a threat involves conduct and, if so, whether it would then constitute

an act of violence. This instruction is consistent with the language of the issue. The trial

court did not err in giving the instruction. Point of error three is overruled.

C. Claims concerning denial of writs of attachment for prospective jurors, a

continuance, or a motion to quash panel.

In his fourth point of error, appellant claims the trial court erred in denying his

application for writs of attachment requiring the appearance of prospective jurors who

submitted purported disqualifications on unsworn juror cards, contrary to jury selection

procedures. In point of error five, appellant claims the trial court erred in denying his

motion for continuance to provide time for the process of service for the sought-for writs

of attachment. In point of error six, appellant claims the trial court erred in denying his

motion to quash the jury panel due to the alleged noncompliance with jury selection

procedures. Appellant briefs these points together.

Several members of the venire mailed in juror cards claiming disqualifications.

Appellant complained about allowing mail-in exemptions and disqualifications, pointing out

that some of the mail-in prospective jurors had simply marked the disqualification they

claimed on the front of the juror cards without signing the affirmation swearing to the

veracity of the claimed disqualification. Appellant claimed this procedure violated

statutory provisions, and he sought a writ of attachment, a continuance to allow time to

summon the absent prospective jurors, and a quashing of the affected panel.

Article 35.01 provides a method for writ of attachment for absent jurors. It is

"directory, not mandatory, and in the absence of governmental misconduct in summoning

the venire, the failure to grant attachments is not reversible error unless appellant shows

injury." (47) To make a showing of injury, appellant must demonstrate that he was forced to

take an "objectionable juror":

An objectionable juror, in the sense in which the term is used in this

connection, means "one against whom such cause for challenge exists as

would likely affect his competency or his impartiality in the trial." (48)

Appellant points to the place in the record where he identified two jurors who were

seated but who were allegedly "objectionable." However, because appellant did not then or

now point to any evidence in support of his allegation that these jurors were challengeable

for cause, he has failed to meet his burden of showing he was forced to accept two

challengeable jurors. (49) Points of error four, five, and six are overruled.

III. Arrest and search issues.

In his seventh point of error, appellant claims the trial court erred by admitting

evidence seized during his arrest pursuant to an allegedly illegal arrest warrant. Appellant

argues that Judge Larry Reed, who issued the capias pro fine traffic warrants upon which

appellant's arrest was based, did not have probable cause because he lacked personal

knowledge that the fines were not paid.

Article 45.045 provides for the issuance of a capias pro fine for a defendant's

arrest "if the defendant is not in custody when the judgment is rendered or if the defendant

fails to satisfy the judgment according to its terms." While a capias is issued after a

judgment has been rendered against the defendant, it must still be supported by probable

cause. (50) But because a judgment against a defendant signifies a finding beyond a reasonable

doubt that he has committed the charged offense, we have held in the context of a parole

violation that a judgment coupled with a finding by the court that there is a "reason to

believe" that the defendant has violated the conditions of his parole will constitute

sufficient probable cause to support the issuance of a parole violation warrant. (51) While a

traffic violator, unlike a parolee, is not subject to a judgment imposing a term of

imprisonment, the judgment establishing the traffic violation nonetheless carries

considerable weight and validity because it is based upon a finding beyond a reasonable

doubt. Thus, a judgment for a traffic violation, together with a finding by the court that the

defendant has failed to satisfy its terms, will comprise sufficient probable cause to support

issuance of the capias pro fine . (52)

Municipal Court Judge Larry Reed testified that he signed the capias pro fine

warrants calling for appellant's arrest due to his failure to pay the fines imposed for various

traffic offenses. He explained that he reviewed the file in each case. Each file contained a

complaint and judgment. Each judgment stated that appellant was found guilty of the

offense, set forth the amount of the fine assessed, and provided the due date. Judge Reed

testified that after reviewing each judgment to verify dates and numbers, if the file

contained no notation, receipt, or documentation from the clerk stating that the fine

assessed had been paid, he would then determine the amount of the increased fine and issue

the capias pro fine . Judge Reed further testified that he had been a municipal judge for

over four years and had worked as a city attorney for fourteen years prior to that. Judge

Reed testified that he reviews approximately 600 to 800 files a week for failure to appear

or failure to satisfy the judgment in traffic offense cases and that this was the standard

procedure in all such cases.

Given his years of experience in the procedures of the municipal court and his

knowledge as to the reliability of the system and the operation of the clerk's office, Judge

Reed made an adequate determination that there was a reason to believe the judgments had

not been satisfied in appellant's cases. The trial court did not abuse its discretion in

concluding that probable cause existed to issue the arrest warrant. Point of error seven is

overruled.

In his eighth point of error, appellant claims the trial court erred in admitting the

evidence obtained as a result of the allegedly illegal search of the Hyundai in which he was

a passenger immediately before his arrest. Appellant argues that the search of the Hyundai

was not made pursuant to a lawful arrest or a valid need for officer safety.

We established in the previous point of error that appellant's arrest, under warrant,

was legal. And regardless of whether the search was justified by a need for officer safety,

appellant has failed to establish that he had a legitimate, reasonable expectation of privacy

in the car. (53) Paula Freeman was driving the Hyundai, and appellant was hiding on the

floorboard in the backseat when Officer Serra approached the car at a gas station. Appellant

suggests he has standing to contest the search based on the fact that he had previously

received traffic tickets while driving the Hyundai. But appellant offered no evidence that he

had permission to drive the car in those instances, that he had any continued permission to

drive the car, or that he had any possessory interest in it. The fact that appellant had driven

the car on previous occasions does not establish that he had any continued permission to do

so, had an ownership or a possessory interest in the car, or otherwise had a reasonable

expectation of privacy in it. (54) Point of error eight is overruled.

In his ninth point of error, appellant claims the trial court erred in admitting

evidence seized from his residence. Appellant argues that the search was illegal because it

was conducted pursuant to consent from a third-party who appellant claims lacked authority

to allow a search of appellant's personal effects.

Paula Freeman owned the house searched. Freeman testified at the suppression

hearing that appellant was her boyfriend and that he had lived with her off-and-on for a

couple of years. Freeman testified that, on the day after Ms. Bryant's murder, she agreed to

let the officers search the house, and she knew that they were searching for appellant's

clothes and shoes. Specifically, she testified that the officers were looking for clothes

matching a description she herself had given them of the clothes appellant wore on the

night of Ms. Bryant's murder. Freeman stated that she understood that the items would be

seized if found. Freeman testified that she did appellant's laundry at her house and that she

sometimes wore appellant's clothes. The officers seized some of appellant's clothing and a

photograph of appellant and Red Roosa.

A third person may validly consent to a search when he has "equal control and equal

use of the property searched." (55) Further, "common authority derives from the mutual use

of the property, not the ownership or lack thereof." (56)

Freeman shared mutual use of her house with appellant such that she had authority to

grant consent to a search of the entire house. Appellant does not dispute Freeman's

authority to consent to the search of her house; instead, he claims she had no authority to

consent to the seizure of his personal effects found there. But the officers did not need

Freeman's consent to seize evidence of a crime found within the scope of a lawful search. (57)

The trial court did not err in admitting the evidence . Point of error nine is overruled.

IV. Challenges for cause and excusal of venirepersons.

In point of error ten, appellant claims the trial court erred by overruling a challenge

for cause against a venireperson who viewed a mere threat of violence to be a criminal act

of violence. In point of error twelve, appellant claims the trial court erred in denying

appellant's challenge for cause against a prospective juror on the ground that the juror

would define "criminal act of violence" as including a property crime with no attendant

violence.

The phrase "criminal act of violence" has not been defined by the legislature.

Therefore, jurors are presumed to attach a common meaning or understanding to the

terms. (58)

Veniremember Ginny Smith testified that a criminal act of violence meant "murder

or . . . a violent crime [such as] rape and stabbing." When asked by defense counsel whether

a threat to kill someone would be enough or whether a "mere threat" would be sufficient to

constitute a threat to society, Smith stated that it would. Appellant moved to challenge

Smith on the ground that a threat did not amount to an act of violence, and that such a

definition decreased the State's burden of proof. The trial court denied the challenge.

A threat might reasonably be viewed as something that could be accomplished by

acts or words. For instance, a threat of violence can be made by brandishing or displaying a

weapon. (59) Threats can be coercive and have a profound impact on the person to whom they

are directed. (60) Thus, Smith was permitted to attach a reasonable, commonly accepted

meaning to the term "criminal act of violence" and the trial court acted within its discretion

in denying appellant's challenge against her.

Venireperson William Perkey testified during voir dire by defense counsel that, in

his view, a property crime like theft is a criminal act of violence. Appellant seems to

suggest that this Court should establish a bright-line rule that property offenses are not

criminal acts of violence. Because the law does not define "criminal acts of violence,"

Perkey is presumed to understand the term and attach to it a common meaning. (61) Thus, the

trial court did not abuse its discretion in denying appellant's challenge for cause against

Perkey. Points of error ten and twelve are overruled.

In appellant's eleventh point of error he contends that the trial court erred in denying

his challenge for cause against a venireperson who appellant claims would automatically

answer the first special issue in the affirmative unless the defendant was physically

incapacitated. Venireperson Hollis Woolsey initially testified during voir dire by defense

counsel that once the defendant was found guilty of capital murder, he would consider that

person to be a continuing threat. Woolsey testified that he would answer the issue in the

negative if the defendant was physically incapacitated in some way such as being in a

wheelchair or being "60 years old and diabetic." When asked by defense counsel whether

the defendant would have to be physically incapacitated, Woolsey responded "probably."

However, when the State explained that he could not automatically answer that issue in the

affirmative based only on a finding of guilt, but would have to consider all of the evidence,

Woolsey agreed that he would do so.

Given Woolsey's agreement to listen to all the evidence before answering the

special issue, the trial court did not abuse its discretion in denying appellant's challenge for

cause. (62) Point of error eleven is overruled.

In his thirteenth point of error, appellant claims the trial court erred by granting a

venireperson's excuse from service for an economic reason, outside the presence of

appellant and his counsel. Summoned venireperson Sean Cerone submitted a letter to the

court asking that he be excused from jury duty on January 11, 2001, and suggesting other

dates that he could serve:

This letter is in response to a juror summons I received on December 21 to

serve as a juror Thursday January 11, 2001. I am requesting to be excused

for that date due to the fact that I am a dentist in a private practice setting and

have no one available to cover my patient appointments. With that relatively

short notice, I already have a full day of patients scheduled that day and

cannot reschedule them without extreme difficulty and hardship to both them

and myself. I would be very willing to commit to a jury summons in the near

future when I can better arrange my patient scheduling responsibilities and

care for my patients while I would be out.

My office generally schedules approximately 8 weeks out, so may I suggest

March 30, 2001, or April 6, 2001, as dates when I can properly arrange my

office schedule to allow for adequate care of my patients. I appreciate your

understanding in his matter. Please reply.

Article 35.03 provides that the trial court "shall then hear and determine excuses

offered for not serving as a juror, and if the court deems the excuse sufficient, the court

shall discharge the juror or postpone the juror's service to a date specified by the court."

The statutory restriction on which appellant relies provides that a prospective juror may not

be excused for "an economic reason" without the presence and approval of both parties. (63)

Cerone did not ask to be excused because he needed the income from his patients on

those days; rather his letter describes a scheduling problem due to the short notice. This is

apparent from his suggestion of other dates on which he would be willing to serve that

would allow him enough time to arrange his schedule. The postponement of jury service

because of pre-existing scheduling conflicts is not the same as a person's claim that he

cannot serve as a juror because he would lose income as a result of that service. (64) The trial

court did not abuse its discretion in concluding that Cerone's letter was not asking to be

excused for an "economic reason." (65) Point of error thirteen is overruled.

V. Claims concerning the constitutionality of the Texas death penalty statute.

In his fourteenth point of error, appellant claims the Texas death penalty statute

violates the Eighth Amendment because it allows the jury too much discretion and lacks the

minimal standards and guidelines necessary to avoid an arbitrary and capricious imposition

of the death penalty. Identical complaints have been addressed and rejected by this Court. (66)

Appellant makes no new arguments concerning this claim. Point of error fourteen is

overruled.

In his fifteenth point of error, appellant claims the Texas death penalty statute

violates the Eighth Amendment as interpreted in Penry v. Johnson (Penry II), (67) because the

mitigation instruction sends "mixed signals" to jurors. Appellant argues that the statutory

mitigation instruction given in his case suffers from the same constitutional flaw of

sending "mixed signals" as the court-made nullification instruction submitted in Penry II

because the statutory mitigation issue is unclear as to the burden of proof. Except for flatly

asserting that the mitigation issue sends "mixed signals" because it is "unclear as to the

burden of proof," appellant does not explain in what way this apparent lack of clarity

constitutes a "mixed signal" like that at issue in Penry II . In light of our previous holdings

that the mitigation issue is not unconstitutional for its failure to assign a burden of proof,

appellant has not convinced us of any constitutional flaw. Point of error fifteen is

overruled.

In his sixteenth point of error, appellant claims the Texas death penalty statute

violates the due process requirements of the Fourteenth Amendment by implicitly placing

the burden of proof on appellant rather than requiring that a jury make a finding against

appellant on that issue beyond a reasonable doubt. Appellant argues that, under Apprendi v.

New Jersey , (68) the Texas scheme is unconstitutional for failing to require a jury finding

beyond a reasonable doubt that there are no mitigation circumstances that would warrant a

life sentence. Thus, appellant claims, the burden of proof would be on the State to prove

beyond a reasonable doubt that the mitigating circumstances do not warrant a life sentence.

Apprendi is inapplicable to Article 37.071. Apprendi applies to fact findings that

increase the penalty beyond the "prescribed statutory maximum." Under Article 37.071,

the "prescribed statutory maximum" is fixed at death. There are no statutory enhancements.

A jury finding on the mitigation issue does not have the potential of increasing the penalty

beyond the prescribed statutory maximum, rather it has the potential for reducing the

prescribed statutory maximum to a sentence of life imprisonment. Point of error sixteen is

overruled.

The judgment of the trial court is affirmed.

Cochran, J.

Delivered: November 5, 2003

Publish

APPENDIX

1.

Unless otherwise indicated, this and all future references to Articles refer to the Texas Code of

Criminal Procedure.

2.

384 U.S. 436 (1966).

3.

470 U.S. 298 (1985).

4.

Throughout its opinion the Miranda Court emphasized the importance of giving the required

warnings "at the outset" of, or "prior to," any interrogation to ensure that subsequent statements would be

voluntary. Miranda, 384 U.S. at 445, 457, 465, 468, 474, 478 .

5.

Id. at 444 . Although Miranda itself spoke of a broad prohibition against the government's use

of an unwarned statement, the Supreme Court later held that a non- Mirandized , but otherwise voluntary

statement could be used to impeach a testifying defendant's credibility. Harris v. New York , 401 U.S.

222, 225-26 (1971).

6.

470 U.S. at 300 .

7.

Id. at 301 .

8.

Id. at 301-302 .

9.

Id. at 302 .

10.

Id. at 308 .

11.

Id. at 309 .

12.

Id.

13. Both the State and the concurrence stress the number of times appellant had been warned by

Officer Gates and a neutral magistrate concerning his

Miranda rights in relation to the murder of Ms. Bryant

to show that he did not need to be warned again by Ranger Akin concerning his rights in relation to the

murder of Sanders and Peeples. It is true that "the mere passage of time" does not, by itself, automatically

obviate prior Miranda warnings.

The cases cited by the concurrence are very appropriate to, and might well be dispositive of, this

issue had the interrogation been by Officer Gates about Ms. Bryant's murder. See Ex parte Bagley , 509

S.W.2d 332, 335 (Tex. Crim. App. 1974) (same A.D.A. gave multiple warnings; all questioning concerned

one offense); Gorman v. United States , 380 F.2d 158, 164 (1 st Cir. 1967) (repetition of Miranda

warnings before requesting consent to search unnecessary because we "see no reason in policy or

precedent automatically to borrow a procedure adapted to one set of constitutional rights at one stage of

a criminal proceeding and apply it to a quite different right, serving quite different purposes, at another

stage); People v. Hill , 233 N.E.2d 367, 369 (Ill. 1968) (same officer, same offense; defendant made a

"delayed" response to officer's initial question); Maguire v. United States , 396 F..2d 327, 330 (9th Cir.

1968) (three days; same offense, different officer); United States v. Springer , 460 F. 2d 1344, 1352 , (7 th

Cir. 1972) (same offense; same FBI agent; same warnings, but 1 st were oral and 2 nd written); Biddy v.

Diamond , 516 F.2d 118, 122 (5 th Cir. 1975) (12 day lapse of time did not destroy effectiveness of original

Miranda warnings when defendant was warned by same officers earlier, released, officers had multiple

contacts with defendant at her home, and she later made a statement to her husband in front of officers at

station after they reminded her of their earlier warnings); Johnson v. State , 324 So.2d 298, 302 (Ala.

Crim. App.), cert. denied , 324 So.2d 305 (Ala. 1975) (same officer, same offense, reminder about

warnings given three days earlier); State v. Gilbreath , 487 P.2d 385, 386 (Ariz. 1971) (same offense,

apparently same officers, no need to repeat warnings given 12 to 36 hours earlier because no

"circumstances which might alert the officers that an accused may not be fully aware of his rights"); Jackson

v. State , 375 N.E.2d 223, 225 (Ind. 1978) (stating that defendant's statement was not the result of

interrogation, but "[e]ven if warnings were required, the earlier warnings were sufficient in light of the

defendant's clear recognition of his right to remain silent. He conditioned his statement upon the presence

of the prosecutor, showing he knew of his right to remain silent, and was waiving that right"); State v.

Russell, 261 N.W.2d 490, 492-93 (Iowa 1978) (statements made in ambulance and three days later in

hospital admissible after deputy had Mirandized defendant twice at arrest scene, and different officer

reminded defendant of those earlier warnings and defendant stated he remembered and wished to waive

them); State v. Brown , 601 S.W.2d 311, 314 (Mo. App. 1980) (same officers, same offense, after

reminder of rights given three days earlier, defendant waived rights and gave statement); State v. Blanchey ,

454 P.2d 841, 845 (Wash., Dept. 2 1969) (same offense, prior warnings by Canadian officials, fresh

warnings by state detectives, but woven into conversation, defendant told detectives that he understood

his rights and gave statement); Kroger v. State , 17 P.3d. 428, 431-33 (Nev. 2001) (same offense, second

officer knew defendant had already been warned and defendant told officer she had been warned before);

Mitchell v. State , 982 P.2d 717, 722 (Wyo. 1999) (same offense, officer reminded hospitalized defendant

of warnings given by another officer several hours earlier and began to summarize them when defendant

said he remembered and was willing to talk); DeJesus v. State , 655 A.2d 1180, 1195-96 (Del. 1995)

(same officers, same offense, six-minute break in interview).

As the Fifth Circuit phrased the issue in Biddy v. Diamond :

The critical legal question is whether the overall activity of the police sufficiently comports

with the requirements concerning the Miranda warnings to insulate the conduct and

admissions against suppression.

516 F.2d at 122 . Here, Ranger Akin was not the same officer who had originally, or at any later time,

given appellant Miranda warnings before questioning him. Ranger Akin was questioning appellant about

an entirely different offense, not the offense for which appellant had been Mirandized . There is no evidence

that Ranger Akin ever asked appellant or anyone else if appellant had been warned by other officers,

whether he remembered those warnings, and wished to waive or invoke them. Ranger Akin testified that,

in his mind, a custodial "discussion interview" in not a custodial interrogation which requires Miranda

warnings. While the mere passage of time would not necessarily dissipate the effectiveness of Miranda

warnings, there is no factual similarity between this case and those which have held that, under the totality

of the circumstances, the police conduct in question complied with the basic tenets of Miranda.

14. Elstad, 470 U.S. at 315 .

15. Id. at 315-16 ; see also id . at 309 (expressing concern for errors made by law enforcement in

judging whether suspect is in custody or in administering proper Miranda warnings).

16. Ranger Akin testified that he did not think that he was "interrogating" appellant for purposes of

Miranda warnings until he was ready to ask appellant to sign the written statement that appellant had orally

made and which Ranger Akin had already transcribed "verbatim." Specifically, Ranger Akin testified that

appellant "was Mirandized prior to the statements, him signing, before initials, reading as he is given those

words, that is exactly right.... The document was not finished-wasn't finished until he initialed and signed

it, yes sir. At that point, he was advised of his rights." When appellant's attorney asked if that was how

he normally interrogates a suspect, Ranger Akin replied, "I don't think that what you are talking about is

an interrogation. That's a matter of taking a statement, not an interrogation." The colloquy continued:

Q: When you sat down and started talking to [appellant], did you read his Miranda rights to him at

that point?

A: Not at that point, no sir.

Q: Why didn't you do that at that point?

A: We just went into conversation, and then went into discussion interview about the murder, and then

at the point prior to finishing this statement, he was advised of his rights from this form.

Q: I understand. Why didn't you do it prior to the time you started questioning?

A: I really didn't see the need to since we did it right here prior to completing this statement.

Miranda , however, indisputably requires a law enforcement agent to give the appropriate legal warnings

before any questioning or "discussion interview," not merely prior to signing a written statement after all the

custodial interrogation is complete. 384 U.S. at 445, 457, 465, 468, 474, 478 .

17. See United States v. Carter , 884 F.2d 368, 373 (8 th Cir. 1989) (stating that Elstad was

inapplicable to post- Miranda written confession in part because "second confession came almost on the

heels of the first" and custodial nature of interrogation was clear to officers); United States v. Gonzalez-DeLeon , 32 F. Supp. 2d 925, 928-29 (W.D. Tex. 1998) (holding Elstad inapplicable to suspect's post- Miranda statements where authorities interrogated suspect over an hour and elicited incriminating

statements before advising suspect of rights); State v. Seibert , 93 S.W.3d 700, 705-707 (Mo. 2002)

(holding Elstad inapplicable where officers intentionally refrained from giving Miranda warnings until

admission obtained and unwarned and warned portions of interview were part of one continuous process),

cert. granted , 123 S.Ct. 2091 (2003); Ramirez v. State , 739 So.2d 568, 575-78 (Fla. 1999) (holding

Elstad not applicable in part because juvenile suspect questioned at police station and gave incriminating

statements before receiving warnings and when suspect finally warned, officers attempted to minimize and

downplay significance of rights and used suspect's previous statements as leverage to compel him to waive

rights).

18. 931 S.W.2d 244 (Tex. Crim. App. 1996) .

19. 762 S.W.2d 146 (Tex. Crim. App. 1988) .

20. Dowthitt, 931 S.W.2d at 258 .

21. Id. (emphasis added).

22. Id. at 259 . In concluding that "[t]he warnings given in the present case were both constitutionally

and statutorily adequate," the Dowthitt Court's reference to the constitutional adequacy of the warnings

pertained to the defendant's claim that the person conducting the interrogation must be the same person

who gives the Miranda warnings. Id. at 258 .

23. Allridge , 762 S.W.2d at 157 .

24. See United States v. Cooper , 800 F.2d 412, 414 (4 th Cir. 1986); Cervantes v. Walker , 589

F.2d 424, 426-27 (9 th Cir. 1978).

25. See Cooks v. State , 844 S.W.2d 697, 734 (Tex. Crim. App. 1992) (stating "[c]learly, while

incarcerated in the Dallas County Jail, appellant was 'in custody'" for Miranda purposes).

26. See United States v. Tejada , 956 F.2d 1256, 1260 (2 nd Cir. 1992) (noting that "physical

evidence seized in violation of the Fourth Amendment - unlike an involuntary confession taken in violation

of the Fifth Amendment - is inherently reliable"); United States v. Schipani ,

315 F. Supp. 253, 257-58

(E.D.N.Y. 1970) ( discussing distinctions between Fourth and Fifth Amendments and concluding

"[d]ecisions excluding the use at sentencing of confessions obtained in violation of the Fifth Amendment are

not persuasive Fourth Amendment precedents") , aff'd , 435 F.2d 26 (2d Cir. 1970); see also Estelle v.

Smith , 451 U.S. 454, 469 (1981) (holding testimony by court-ordered psychiatrist about unwarned

statements made to him by defendant violated Fifth Amendment and were inadmissible at sentencing on

issue of future dangerousness); Pens v. Bail , 902 F.2d 1464, 1466 (9 th Cir. 1990) (holding unwarned

confessions to extraneous crimes violated Fifth Amendment and were inadmissible at sentencing phase to

enhance sentence where elicited during court-ordered psychiatric treatment while incarcerated); but see

Del Vecchio v. Illinois Dept of Corrections , 31 F.3d 1363 (7 th Cir. 1994) (stating exclusionary rule

would not apply at sentencing hearing, even assuming confession taken in violation of Miranda , because

no deterrent purpose served where confession taken fourteen years before introduced).

27. Tex. R. App. P. 44.2(a); see Cain v. State , 947 S.W.2d 262, 264 (Tex. Crim. App. 1997).

28. See Chapman v. California , 386 U.S. 18, 24 (1967) (under constitutional error analysis,

reviewing court must reverse unless it is "able to declare a belief that [the error] was harmless beyond a

reasonable doubt"); Satterwhite v. Texas , 486 U.S. 249, 258 (1988) (applying Chapman harmless error

standard to admission of unwarned statement to psychiatrist at punishment stage of defendant's capital

murder trial).

29. McCarthy v. State , 65 S.W.3d 47, 55 (Tex. Crim. App. 2001), cert. denied , 536 U.S. 972

(2002).

30. Id .

31. Tex. Code Crim. Proc. art. 37.071, §§ 2(b)(1) & 2(e)(1).

32.

Satterwhite , 486 U.S. at 256 (quoting Delaware v. Van Arsdall , 475 U.S. 673, 681 (1986)).

In Satterwhite , the Supreme Court noted that "the evaluation of the consequences of an error in the

sentencing phase of a capital case may be more difficult because of the discretion that is given to the

sentencer." Id. at 258 . Nonetheless, we, like the Supreme Court, believe that reviewing courts "can make

an intelligent judgment" about whether the erroneous admission of a statement taken in violation of Miranda

might have affected a capital sentencing stage. See id.

33.

United States v. Polanco , 93 F.3d 555, 562-63 (9 th Cir. 1996) (analyzing Miranda-Elstad

error and finding it harmless because of "substantial other evidence" to prove the same fact as that

contained within the defendant's improperly admitted statement). See Milton v. Wainwright , 407 U.S.

371, 372-73 (1972) (admission of pre- Mirandized statement was harmless error beyond a reasonable

doubt because of the overwhelming evidence of the defendant's guilt); United States ex rel. Savory v.

Lane , 832 F.2d 1011, 1019-20 (7 th Cir. 1987) (concluding that admission of testimony barred by Fifth

Amendment was harmless "[i]n light of the state's otherwise strong case, the relatively limited use of tainted

evidence, and the lack of probative value the tainted evidence had"); Gorham v. Franzen , 760 F.2d 786,

796 (7 th Cir. 1985) ( stating that "[w]here a confession, otherwise voluntary, is inadmissible for failure to

comply with the strict procedural requirements of Miranda , reversal is not required if, on the facts in the

record, the court can find beyond a reasonable doubt that its use at trial was harmless"; finding error

harmless because there was other "extensive physical and testimonial evidence implicating" defendant in

murder); Harryman v. Estelle, 616 F.2d 870 , 876 (5 th Cir 1980) (when determining whether admission

of non- Mirandized statements is harmless, reviewing court must decide whether, absent that statement, the

evidence remains not only sufficient to support the verdict but so overwhelming as to establish the guilt of

the accused beyond a reasonable doubt; error harmless because other physical evidence was

overwhelming); Boyd v. Hawk, 965 F. Supp. 443, 448 (S.D.N.Y. 1997) (stating that "[a] constitutional

error arising from use of evidence is harmless if a jury would have reached the same guilty verdict without

hearing the additional, unconstitutionally obtained evidence").

34.

See, e.g., Harrison v. Owen , 682 F.2d 138, 141 (7 th Cir. 1982) (citing Milton and Schneble

and stating that defendant's improperly admitted statements were harmless when other, admissible

evidence, whose truth was unchallenged, proved the same facts and was "entirely consistent" with the

defendant's statements); Germany v. Estelle , 639 F.2d 1301, 1303 (5 th Cir. 1981) (admission of

statement obtained in violation of Miranda harmless error in light or other admissible evidence and fact that

statement did not contradict either of defendant's defenses).

35. This is precisely the tenor of appellant's statement to Ranger Akin.

36.

Captain David Walker with the Tarrant County Sheriff's Department testified that they located

a gray Altima belonging to Peoples' girlfriend. A search of the Altima revealed the presence of human

blood stains on the backseat.

Photographs of Sanders' and Peoples' remains-when their bodies were discovered at the Trinity

River-were admitted into evidence. Both victims had ligatures around their necks and one also had a head

wound.

Dr. Sheila Spotswood testified that she conducted Peoples' autopsy. She described Peoples'

injuries in detail and stated that cause of death was homicidal violence. Peoples' autopsy photographs were

admitted. Spotswood also testified about Sanders' injuries and his autopsy photos were admitted.

Sanders' cause of death was also homicidal violence.

37.

See Milton v. Wainwright, Polanco , Savory v. Lane, Gorham v. Franzen, Harryman,

Harrison v. Owen, Germany , all supra, note 33.

38.

The primary difference between Keisha's testimony and the Akin statement was Keisha's

insistence that appellant went along with the murders because Red threatened to hurt Paula Freeman and

her son. Keisha's version also suggests that appellant did not plan the murders with Red beforehand but

went along with Red once Red had killed Peoples.

39.

See Chapman , 386 U.S. at 25 (stating comment on defendant's failure to testify could not be

deemed harmless when "prosecutor's argument and the trial judge's instruction to the jury continuously and

repeatedly impressed the jury that [the jury could draw inferences of guilt] from the failure of petitioners

to testify"); United States ex rel. Savory v. Lane , 832 F.2d at 1020 (holding Miranda error harmless

because of state's otherwise strong case, as well as the state's relatively limited use of the tainted evidence).

40.

See Germany , 639 F.2d at 1303 (concluding that erroneously admitted statement by defendant

did not "contradict either of petitioner's defenses, thus, "when faced with the overwhelming untainted

evidence ... and the peripheral impact of the incriminating statement on the strength of petitioner's asserted

defenses," error harmless); Harryman , 616 F.2d at 877 n.15 (noting that erroneous admission of

defendant's statement "had no effect, much less an adverse effect, on the conduct of [defendant's]

defense"; admission of non-Mirandized statement did not affect theory of defense).

41.

See Harrington v. California , 395 U.S. 250, 254 (1969) (any judgment as to the harmfulness

of constitutional error must be based on the reviewing court's "own reading of the record and on what seem

to have been the probable impact of the [inadmissible evidence] on the minds of an average jury").

42.

See Milton v. Wainwright , 407 U.S. at 372-73 ; Schneble v. Florida , 405 U.S. at 429-32.

43.

McCarthy , 65 S.W.3d at 56 .

44.

Cf. Prystash v. State , 3 S.W.3d 522, 531 (Tex. Crim. App. 1999) (holding that because

defendant requested deletion of issue from jury charge, he was estopped from complaining about its

absence on appeal).

45.

See Benson v. State, 496 S.W.2d 68, 70 (Tex. Crim. App. 1973) (stating that "[a]ppellant

cannot now be heard to complain because the court granted him what he asked for").

46.

See Ripkowski v. State , 61 S.W.3d 378, 389 (Tex. Crim. App. 2001).

47.

Dowthitt , 931 S.W.2d at 251 .

48.

Stephensen v. State , 494 S.W.2d 900, 904 (Tex. Crim. App. 1973).

49.

Id. ; see also Cooks v. State , 844 S.W.2d 697, 726 (Tex. Crim. App. 1992) (applying

Stephenson test for "objectionable juror" to alleged error in jury selection procedures).

50.

See Sharp v. State , 677 S.W.2d 513, 517 (Tex. Crim. App. 1984) .

51.

Garrett v. State , 791 S.W.2d 137, 140 (Tex. Crim. App. 1990) (holding that because parolees

are not afforded the same rights as persons merely suspected of committing crime, arrest is valid pursuant

to parole violation warrant where issued based on "reason to believe" defendant had violated conditions

of parole rather than probable cause).

52.

Cf. id.

53.

Flores v. State , 871 S.W.2d 714, 719 (Tex. Crim. App. 1993) (stating when legality of search

is in issue, defendant bears burden of proving that his own privacy rights were violated).

54.

See Hughes v. State , 24 S.W.3d 833, 838 (Tex. Crim. App.) (holding that defendant as

passenger in car did not have standing to complain of search in absence of evidence showing possessory

interest or reasonable expectation of privacy); Flores , 871 S.W.2d at 719-20 (holding that defendant failed

to establish standing in vehicle registered to his mother where there was no evidence defendant had interest

in or right to use car).

55.

Welch v. State , 93 S.W.3d 50, 52 (Tex. Crim. App. 2002).

56.

Id.

57.

See Frazier v. Cupp , 394 U.S. 731, 740 (1969) (holding officers could seize personal effects

of defendant which were found in a duffle bag defendant shared with third person and which were evidence

of a crime when third person gave valid consent to search bag).

58.

Ladd v. State , 3 S.W.3d 547, 572-73 (Tex. Crim. App. 1999); Garcia v. State , 887 S.W.2d

846, 859 (Tex. Crim. App. 1994).

59.

Huddleston v. State , 661 S.W.2d 111 (Tex. Crim. App. 1983) (concluding that carrying knife

with 3-inch blade was sufficient to show threat of deadly force under kidnaping provision); Michael v.

State , 834 S.W.2d 64, 67-68 (Tex. App.-Dallas 1992) (holding threat with shotgun rendered defendant

criminally responsible as party for aggravated robbery).

60.

See Tex. Pen. Code § 1.07(a)(9) ("coercion" defined in Penal Code as "threat, however

communicated"); see also Whiteside v. State , 29 S.W.2d 399, 401-403 (Tex. Crim. App. 1930) (op.

on reh'g) (recognizing homicide may be committed pursuant to threats and intimidation and gestures where

they cause victim to be so terrorized that she leapt from window).

61.

Venirepersons may decide for themselves what evidence would amount to a finding beyond a

reasonable doubt of future dangerousness . See Garrett v. State , 851 S.W.2d 853, 859 (Tex. Crim.

App. 1993).

62.

Garrett , 851 S.W.2d at 859 .

63.

Tex. Gov't Code § 62.110(c).

64.

See, e.g., Ott v. State , 627 S.W.2d 218, 225-28 (Tex. App. - 1981, pet. ref'd) (trial judge

had discretion to excuse fourteen prospective jurors because of business scheduling conflicts; noting that

"[w]hile jury service is vital and essential, .. some people called for jury service on relatively short notice,

simply have insurmountable problems in serving in a particular week that must be recognized by the trial

judge").

65.

See White v. State , 591 S.W.2d 851, 857 (Tex. Crim. App. 1979) (concluding that job-related

excuses offered by five prospective jurors were not for "economic reasons" in absence of showing that jury

service for these individuals would have resulted in loss of job, loss of compensation, salaries, wages,

suffering of financial burden, or other economic consequences), overruled on other grounds , Bigby v.

State , 892 S.W.2d 864 (Tex. Crim. App. 1994).

66.

Moore v. State , 999 S.W.2d 385, 408 (Tex. Crim. App. 1999); Pondexter v. State , 942

S.W.2d 577, 587 (Tex. Crim. App. 1996).

67.

532 U.S. 782 (2001). We refer to the Court's opinion as " Penry II " to avoid confusing it with

the Court's earlier opinion in Penry v. Lynaugh , 492 U.S. 302 (1989).

68. 530 U.S. 466 (2000).