Maxwell, Joshua

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

AP-74,309

JOSHUA MAXWELL, Appellant

v.

THE STATE OF TEXAS

ON DIRECT APPEAL

FROM BEXAR COUNTY

P RICE , J., delivered the opinion of the Court in which Keller, P.J. , and

Meyers, Womack, Johnson, Keasler, Holcomb, and Cochran, JJ. , joined.

Hervey, J. , did not participate.

O P I N I O N

A Bexar County jury convicted the appellant, Joshua Maxwell, of killing Rudolfo

Lopes in the course of committing a robbery or kidnapping. (1) Pursuant to the jury's

answers to the special issues set forth in Code of Criminal Procedure Article 37.071,

Sections 2(b) and 2(e), the trial court sentenced the appellant to death. (2) Direct appeal to

this Court is automatic. (3) The appellant raises eight points of error challenging his

conviction and sentence. We reject each of his contentions and affirm the trial court's

judgment.

I. FACTS

The evidence at trial showed that Rudolfo Lopes, a sergeant with the Bexar County

Sheriff's Department, was murdered in San Antonio on or about October 11, 2000. San

Antonio resident Robert Brown encountered the appellant and Tess McFarland prior to

Lopes's murder. Brown met the appellant, who went by the name "Mo," and McFarland,

who went by the name "Trina," by responding to their ad on a "dating telephone line"

advertised in a magazine. The first time the appellant and McFarland came to Brown's

apartment, they talked for about an hour and Brown gave them money to buy food.

Brown testified that they stole some rings from him at that time. Two or three days later,

the appellant and McFarland told Brown that they were in town for a friend's wedding

and needed a place to stay overnight. They spent the night at Brown's apartment and

gave him a ride to a liquor store the next day. Brown testified that they had a gray three-door vehicle with Florida license plates. He further testified that the car was dirty and

filthy-smelling, and that there was a container in the car with a chameleon lizard inside it.

Brown let them use his phone before they left that afternoon. After they left, a man called

asking for "Mo" and "Trina."

Lopes's wife testified that Lopes was scheduled to work at the Bexar County Jail

from 10:00 a.m. to 9:00 p.m. on October 11. Lopes left for work that morning in his gold

four-door Chevrolet pickup truck, but he never returned home that night. Lopes often

carried a briefcase and wore a gold chain necklace with a cross and anchor pendant.

Lopes normally carried a Glock pistol issued by the Sheriff's Department.

An investigations officer with the Security Service Federal Credit Union testified

that Lopes had a checking account, a savings account, an ATM card, and a Visa card at

the credit union. Records show that shortly after 7:00 p.m. on October 11, someone using

Lopes's ATM card at the credit union's Southwest Military Branch made two successful

withdrawals of $300 and $100. The person using the card attempted to withdraw more

money from Lopes's checking and savings accounts, but the transactions were denied. A

surveillance camera photographed a woman leaning out of the driver's side of a vehicle

using the ATM.

Charles Dudley, the owner of a martial arts school in a northeast San Antonio strip

center, testified that he left work with his family about 9:00 p.m. on October 11. They

noticed a gold Chevrolet pickup truck driving around to the back of the strip center, so

they got into Dudley's car and drove behind the strip center to see what was going on.

The truck was parked next to a hole in the privacy fence that separated the strip center

from the field behind it. Dudley observed a woman with long, bushy hair and glasses

sitting in the driver's seat and a man slumped down in the passenger seat. As Dudley

drove by, the man and the woman stared straight ahead. Dudley thought it odd and

slowly drove by them a second time and put his headlights on the truck. The man and the

woman continued sitting in the truck staring straight ahead.

Debra Guzman, who lived in a residential area behind the strip center, testified that

she and her husband were watching the Presidential Debate on the evening of October 11.

She heard one loud gunshot between 9:00 and 10:00 p.m.

Lopes's body was discovered in the field behind the strip center on October 12.

He was blindfolded and was lying face down with his arms inside his shirt and his hands

bound together. There was a white cotton cord tied around one of his wrists, and both

wrists were tightly bound together with a clear telephone cord. Police found a spent shell

casing on the ground near Lopes's body.

A security guard at the Windsor Park Mall in San Antonio first ticketed a gray

Chevrolet Corsica with Florida license plates for overnight parking at 4:15 a.m. on

October 12. The abandoned vehicle continued to receive parking tickets until it was

reported to police on October 15. Police discovered that the vehicle identification number

and the license plate did not match and that the vehicle was "flagged" from out of state in

reference to another homicide case. Inside the car were letters containing references to

the appellant and McFarland, a package of cigarettes, photographs of McFarland and the

appellant, a "Scotsman Inn" hotel receipt with the name "Trina Dorris," and a dead lizard.

At 4:40 p.m. on October 17, police officers Joseph Juarez and Jesus Pena were on

duty in downtown San Francisco, California, when they saw a gold pickup truck speed

through an intersection and almost hit a pedestrian. The officers stopped the truck, exited

their vehicle, approached the truck from the rear, and asked the male driver to turn off his

engine. The driver instead drove away and led them on a chase through downtown San

Francisco. Halfway through the chase, the driver of the truck shot at them. The bullet hit

the officers' windshield and came within inches of striking Officer Juarez. Glass from

the windshield sprayed the inside of the police car and scratched Officer Pena's eyes.

Additional police officers became involved in the chase. The driver continued shooting

at police and the police returned fire. Officer Richard Seidell testified that at one point

the driver "reached out with his left arm and hand and raised his middle finger and

flipped us off."

The chase finally ended when the truck became stuck in traffic. The truck was

identified as Lopes's vehicle. The driver and passenger of the truck were identified as the

appellant and McFarland. McFarland suffered a neck injury during the chase. The

appellant was wearing a gold-chain necklace when he was apprehended.

The police searched the truck and found Lopes's badge, Lopes's credit card from

the Security Federal Credit Union, and a State of Indiana identification card for "Trina

Dorris" with McFarland's picture. Police also found in the truck, Lopes's Glock pistol, a

Chinese 9-millimeter pistol, and a briefcase in the truck.

The medical examiner who performed Lopes's autopsy testified that his death was

caused by a single gunshot wound to the top of his head. The 9-millimeter bullet entered

the top of Lopes's head, exited his chin, re-entered his body through his chest, and lodged

between his sternum and his heart. A firearms examiner testified that the Chinese 9-millimeter pistol found in Lopes's truck was the weapon that fired the bullet that was

recovered from Lopes's chest and the shell casing that was found near his body.

Detention officers Calvin Robinson and Wendell Busby testified about an incident

involving the appellant while he was in the Bexar County Jail awaiting trial. Robinson

testified that the appellant was banging on his cell door at about 6:10 p.m. on September

1, 2001. The appellant told Robinson he was upset about not receiving his account

balance earlier that day. When Robinson told the appellant he would get his account

balance for him later, the appellant became more upset and began banging on the door

even harder. The appellant called Robinson a "black, mother-fucking nigger" and said

that he would "bust [Robinson's] face if he could get out of his cell." He also said "if he

could get out of that cell, he'd kill [Robinson], just like he had killed [his] home boy,

Lopes." Robinson told the appellant to calm down and went back into the office where

Busby was located. The appellant, using a "pleading-type of voice," then mimicked how

Lopes had begged for his life, stating repeatedly, "Please don't kill me." The appellant

used a stronger, higher, and more authoritarian voice when he described his response:

"Shut up, bitch . . . I'm going to kill you anyway."

Busby's testimony confirmed Robinson's version of events. Busby added that

another inmate yelled something at the appellant after the appellant mimicked Lopes, and

the appellant replied, "I don't care what I said." Both Robinson and Busby denied doing

anything to provoke the appellant.

Defense witness Sergeant David Ryker testified that he investigated the incident at

the Bexar County Jail on September 1. The appellant made no mention of Lopes and told

Ryker that Robinson was harassing him. Defense counsel also called an evidence

technician with the San Antonio Police Department who testified that there was never a

comparison made on a plaster shoe cast of a footprint taken at the crime scene on October

12, 2000. Finally, Bexar County Deputy Sheriff Daniel Grasser testified that he could not

locate the shoes that the appellant was wearing when he was arrested in San Francisco.

II. SUFFICIENCY OF THE EVIDENCE

A. Legal Sufficiency

In his seventh point of error, the appellant challenges the legal sufficiency of the

evidence during the guilt phase of the trial. In order to convict the appellant of capital

murder, the charge required the jury to find beyond a reasonable doubt that the appellant

intentionally committed murder in the course of committing or attempting to commit

kidnapping or robbery.

In evaluating the legal sufficiency of the evidence, we view the evidence in the

light most favorable to the verdict and determine whether any rational trier of fact could

have found the essential elements of the offense beyond a reasonable doubt. (4) When the

trial court's charge authorized the jury to convict on alternative theories, as it did in this

case, the verdict of guilt will be upheld if the evidence was sufficient on any one of the

theories. (5)

The appellant argues that "the evidence was legally insufficient to prove that he

had anything to do with the actual death of [Lopes]." He attempts to shift the blame to

McFarland, arguing that she was the only person shown on the credit-union surveillance

tape shortly after 7:00 p.m. on October 11. However, the State presented evidence that

McFarland was not acting alone two hours later. Dudley testified that he saw a woman

and a man sitting in the gold Chevy pickup truck behind the strip center about 9:00 p.m.,

and Guzman testified that she heard a single gunshot sometime between 9:00 and 10:00

p.m.

The appellant's statement to Officers Robinson and Busby in the Bexar County

Jail is also highly probative of his guilt. He acknowledges that he "made a statement at

the Bexar County Jail describing how [Lopes] had died," but argues that "it could easily

have been [McFarland] that described this to [him]." The appellant's statement was not a

mere description of the circumstances of Lopes's death, it was an admission of his direct

involvement in the murder. The appellant told Robinson that he would kill him "just like

he had killed [his] home boy, Lopes."

The appellant also complains that the State "relied heavily" on his flight to avoid

arrest in San Francisco as evidence of his guilt. Although the appellant's flight was

indicative of guilt, it was certainly not the only evidence against him. The evidence at

trial showed that Lopes was bound and was taken to the field behind the strip center

where he was shot and killed. The appellant admitted to detention officers that he killed

Lopes and imitated the way he threatened Lopes when he begged for his life. When the

appellant was apprehended in San Francisco, he was in possession of not only Lopes's

vehicle and personal belongings, but also the gun that was used to kill him. Based on the

evidence at trial, a rational jury could have concluded beyond a reasonable doubt that the

appellant committed murder in the course of kidnapping or robbery. (6) Point of error seven

is overruled.

B. Factual Sufficiency

The appellant challenges the factual sufficiency of the evidence in his eighth point

of error. In a factual sufficiency review, we view all the evidence in a neutral light and

set aside the verdict only if (1) the evidence was too weak to support a finding of guilt

beyond a reasonable doubt or (2) if the contrary evidence was so strong that the evidence

in favor of the verdict could not have established guilt beyond a reasonable doubt. (7) The

appellant challenges the factual suffiiency of the evidence under the first prong only.

The appellant points the finger at McFarland and argues that the State failed to

prove that he was the one who actually killed Lopes. The appellant's statement to

Robinson and Busby in the Bexar County Jail, however, was a significant piece of

evidence showing that he did in fact kill Lopes. The appellant complains about the

"circumstantial nature" of this case. The value of circumstantial evidence is often equal

to, or even greater than, that of direct evidence. (8) Evidence that the appellant possessed

Lopes's property and the murder weapon and fled from police to avoid arrest was also

highly probative of his guilt.

We cannot say that the evidence was so weak that the jury could not have found

guilt beyond a reasonable doubt. Point of error eight is overruled.

III. VOIR DIRE

In his first point of error, the appellant contends the trial court erroneously granted

the State's challenges for cause to six venire members: Ofelia Hernandez, Amy Martinez

Whitehead, Sylvia Holguin, Mary Jane Gignac, Judith Gee, and Charlie McNeil. The

appellant asserts that this violated his rights under the Fifth and Fourteenth Amendments

to the United States Constitution and Witherspoon . (9)

Venire members who can set aside their beliefs against capital punishment and

honestly answer the special issues are not challengeable for cause. (10) Venire members are

challengeable for cause if their views regarding the death penalty would prevent or

substantially impair the performance of their duties in accordance with their instructions

and oath. (11)

We review a trial court's ruling on a challenge for cause with considerable

deference because the trial court is in the best position to evaluate a venire member's

demeanor and responses. (12) We will reverse a trial court's ruling on a challenge for cause

only if a clear abuse of discretion is evident. (13) When a venire member's answers are

vacillating, unclear, or contradictory, we accord particular deference to the trial court's

decision. (14) We will not second guess the trial court when the venire members are

persistently uncertain about their ability to follow the law. (15)

A. Hernandez

Hernandez initially testified during voir dire that she was "not one to agree with

the death penalty" and that she could not, under any circumstances, vote in such a way

that someone could be put to death. She also expressed concern about her ability to serve

as a juror due to her feelings about the unsolved, recent murder of a close friend. (16) Upon

further questioning by the prosecutor, she again said that she did not think she could

impose the death penalty:

A. I would not consider it. Me.

Q. You, yourself, could not?

A. No.

Q. Are those based upon your religious views, personal views, just the way

you feel?

A. Its not the way I feel, its just that I would not - - I don't - - I can't - - it is

very hard to decide if it is a yes or a no. Yes, I want the death penalty, the

capital for what they did.

But then, I, in my heart I feel that - -

Q. That you yourself could never vote to impose the death penalty?

A. I would feel, in me - - yes. Of course, God is there for all of us. Let

God be the judge of that.

Q. Rather than you?

A. I don't think that I would be able to decide that.

Defense counsel then questioned Hernandez on the issue:

Q. My question is, although you have strong feelings about the death

penalty, can you still follow the court's instructions and listen to the

evidence and make a decision based upon what you hear from the witness

stand?

A. Yes. If I am to serve and I am there, of course I will listen - -

Q. Okay.

A. - - to the trial. I am not - - what I am trying to say is, I will not - - I

don't think I would be the right person - -

Q. Okay.

A. - - to send somebody to the death penalty.

Q. Well - -

A. Presuming they were sent. There has to be a trial in order for - - you

cannot decide that, Okay, he is innocent; no, he is guilty.

Q. Uh-huh.

A. You can't just answer those questions right there and then, like you are

telling me now. Because I haven't heard the trial. I don't know what

happened.

Q. I understand. That is why we have trials. Like you say, we have to have

trials. We can't just say somebody is guilty or not guilty. People have to

make a decision based upon the evidence, what the witnesses say and stuff,

okay? As a juror that is what you would have to do. Can you do that?

A. I don't think so. I don't think that I would be. It is not because of what

happened to my friend . . . .

In granting the prosecutor's challenge for cause, the trial court stated that it did not

think that Hernandez could set aside her beliefs against capital punishment and honestly

answer the special issues . The trial court's decision is supported by the record. The trial

court did not clearly abuse its discretion in granting the prosecutor's challenge for cause

to Hernandez. (17)

B. Whitehead

When the prosecutor first asked Whitehead to explain her feelings about the death

penalty, she stated, "I don't believe in it under any circumstances." She also stated that

she was not familiar with the process for imposing the death penalty in a capital murder

trial. She again stated that she could not impose the death penalty after the prosecutor

explained the process to her.

Whitehead answered differently after defense counsel further explained the

process for imposing the death penalty. Defense counsel asked, "Do you think you could

follow the court's instructions, the charge that would be given to you, and the law, and

temporarily set your opinions about the death penalty aside and answer those questions?"

Whitehead responded, "Yes. I probably could."

Whitehead again changed her answers after the prosecutor explained that by

answering the special issues she was essentially deciding whether or not a defendant

would get the death penalty:

Q. Now, having said that, can you truthfully set your opinions aside about

the death penalty? That is, you are opposed to the death penalty. Can you

set those feelings aside and answer these questions based upon the evidence

or are your feelings such that would prevent you from doing that?

A. I would not. It would prevent me from doing that, if I knew.

* * *

Q. Could you ever answer those questions yes, yes and no, knowing that,

by those answers, the death penalty is imposed?

A. No, I could not. I couldn't.

Q. And is that because of your feelings about the death penalty?

A. Yes.

Upon further questioning by defense counsel, Whitehead again stated that she

could not answer the special issues in such a way as to impose the death penalty. The

trial court asked her if she would ignore the evidence and always answer the special

issues so that the death penalty would not be imposed. Whitehead replied, "Probably, if it

- - yes. I mean, I just have really strong beliefs about something like that and I don't

know if I could live with myself." Defense counsel asked her one final time, "Regardless

of what the evidence is, you would always answer in such a way where the death penalty

would not be imposed; is that what you are saying?" Whitehead replied, "Yes."

Although Whitehead vacillated as to whether she could set aside her beliefs

regarding capital punishment and honestly answer the special issues, she ultimately

testified that she could not do so; thus, we defer to the trial court's discretion. (18)

C. Holguin

We next turn to Holguin. The prosecutor explained the different types of

underlying offenses that would elevate a murder to capital murder, and asked Holguin if

they were the types of offenses for which the death penalty might be appropriate.

Holguin replied, "Yes. But, you know, that's a very broad question. It just depends on

the circumstances. I don't look at things an eye for an eye, tooth for a tooth; it just

depends on what is presented." The prosecutor explained that the case at hand involved

murder in the course of robbery, and Holguin stated that she did not think that murder in

the course of robbery would warrant the death penalty. Holguin, however, later stated:

"If all the facts were there and the evidence proves that it was intentional, and that he did

really intend to kill him, along with robbing him or whatever, kidnapping, then I may

consider that, I may consider that, it just depends on what is presented. Because, I give

everyone the benefit of the doubt."

When the prosecutor explained the process for imposing the death penalty in a

capital murder trial, Holguin stated that she could fairly and honestly answer the special

issues based on the evidence. She expressed her belief that if a defendant is sentenced to

life in prison, he should not be eligible for parole, but stated that this belief would not

influence her in answering the special issues.

Holguin reiterated to defense counsel that her thoughts on parole eligibility for

life-sentenced defendants would not affect her answers to the special issues. Defense

counsel then asked her about her previous statement that murder in the course of robbery

would not warrant the death penalty:

Q. Okay. Now, I know you were talking about your feelings about the

death penalty. At first, you didn't think if a person committed murder in the

course of a robbery, you didn't think that warranted the death penalty.

Okay?

A. Right.

Q. How do you feel about that after we have had the discussion so far?

A. The same.

Q. Okay. Do you feel like if the Court gave you the instructions that you

have to base your decision solely on what you have heard from the witness

stand, what evidence has been presented, do you feel like you could do that?

A. Yes.

The prosecutor then questioned Holguin again and the following exchange

occurred:

Q. Capital murder in the course of robbery, capital murder in the course of

kidnapping, it is an intentional killing in the course of robbery or an

intentional killing in the course of kidnapping. All I am asking is what your

personal feelings are. Should the death penalty ever been imposed in one of

those cases?

A. I don't think so.

Q. If the state proves capital murder in the course of a robbery or capital

murder in the course of a kidnapping, beyond a reasonable doubt, and that is

what it is, and you get to the punishment phase, would you always vote so

that the death penalty - - would you always answer these questions so that

the death penalty would not be imposed?

A. So, that it wouldn't be imposed?

Q. Would not be?

A. Yes. I would answer yes to that.

Q. Because, in your mind, it shouldn't be imposed for capital murder in the

course of robbery or kidnapping?

A. Correct. Well, it just depends on the evidence.

Holguin again expressed some confusion on the subject, and the trial court

continued to questioned her :

THE COURT: Here is the question: The State of Texas has provided that

capital murder involves certain types of crimes. Direct capital murder

would be, for example, murder of a child, intentionally, under the age of

six. Murder of a police officer or peace officer in the performance of their

duties, would also be capital murder.

If someone commits, intentionally commits a murder during the

course of a robbery, with a weapon - - say armed robbery. The state also

says that if a person intentionally does the killing during the robbery, then

that person is eligible to be charged with capital murder and the state can

seek the death penalty.

Are you automatically going to say that that sort of a person should

not receive the death penalty?

[DEFENSE COUNSEL]: Judge, she is entitled to say that because, under

the third question, which is the Penry nullification, a particular type of

capital murder, it may be that, given the circumstances of the offense, which

she is entitled to take into account - -

THE COURT: Well, I am asking if she can consider it. Are you saying that

you could not consider the death penalty for someone accused of that kind

of a case, if it is proven to you beyond a reasonable doubt that it was an

intentional killing?

[HOLGUIN]: Yes.

THE COURT: You could not?

[HOLGUIN]: I could not. You are saying that I could not - -

THE COURT: I am asking you. Are you saying that you are not able to

ever assess a death penalty for an intentional killing during the commission

of a robbery, or during the commission of a kidnapping?

[HOLGUIN]: That I could not - -

THE COURT: Consider it.

[HOLGUIN]: No, no.

THE COURT: Okay. You are saying you would never be able to consider

that?

[HOLGUIN]: Right.

The prosecutor challenged Holguin for cause "based upon her inability to follow

the law." Over defense counsel's objections, the trial court granted the prosecutor's

challenge for cause. One of the theories alleged in the indictment was murder in the

course of robbery. Because Holguin vacillated, then expressed her inability to consider

the death penalty under that particular circumstance, we will defer to the trial court's

discretion. (19)

D. Gignac

Gignac stated in her jury questionnaire that she was opposed to capital punishment

under any circumstances due to her religious beliefs. When the prosecutor asked Gignac

to express her thoughts about the death penalty during voir dire, she stated: "My belief is,

I don't feel I could judge. I am not God and I cannot say whether a person should live or

die. I wouldn't go out an[d] hurt somebody and I don't - - I couldn't do that to the worst

people in the world, even if that person murdered somebody personal to me, to my

family." Gignac further testified that she was "born to a Catholic family" and was taught

that "if somebody slaps your face you turn your cheek and have them slap the other side."

She stated that she could not set aside her beliefs about the death penalty and that she

could never answer the special issues in such a way as to impose the death penalty.

When questioned by defense counsel, Gignac again stated that she did not believe

in the death penalty. She acknowledged that it caused her stress to even discuss the issue.

The trial court finally asked, "Your religious beliefs would preclude you, in any

circumstance, any circumstance that would be conceivable to you, to ever even consider a

death penalty; is that what you're saying?" Gignac responded, "Yes, sir."

Gignac clearly expressed that she could not set aside her beliefs against capital

punishment and honestly answer the special issues. The trial court properly granted the

State's challenge for cause to Gignac. (20)

E. Gee

When the trial court questioned Gee regarding her feelings about the death penalty,

she stated, "I do have strong feelings on capital punishment. And, bottom line, I do not

feel I could, in all good faith on my part - - I cannot assign death to anybody." Gee stated

that she could decide guilt or innocence based on the evidence, but that she could not

follow the law and consider the evidence if doing so would result in the imposition of the

death sentence. She reiterated upon questioning by the prosecutor that she was not in

favor of the death penalty. She acknowledged that she could not vote for the death

penalty regardless of the facts and circumstances of the case. Defense counsel declined to

question Gee, but objected to the prosecutor's challenge for cause. On this record, we

cannot conclude that the trial court clearly abused its discretion to grant the prosecutor's

challenge for cause to Gee. (21)

F. McNeil

McNeil first testified that he was concerned with his ability to "render a fair

judgment" due to his personal feelings about the death penalty. He stated in response to

questioning by the prosecutor that he did not believe that he had the right to take someone

else's life and that he did not want that on his conscience. The prosecutor discussed the

different ways to commit capital murder and asked McNeil if he could have an "open

mind" about the death penalty being appropriate in those types of cases. McNeil

responded, "I would have to say no." The prosecutor then explained the process for

imposing the death penalty and asked McNeil if he could honestly answer the special

issues in such a way as to impose the death penalty:

A. Okay. I guess - - well, based upon what, you know, you presented to

me, explained to me, I feel that I would be able to present it fair, without

being biased. So - - I didn't really understand the actual process.

Q. Uh-huh.

A. I would say yes.

Q. Okay. You are willing to take each question and, knowing that if you

answer it in that way, like I said, the judge is bound by what you say and he

has to impose the death penalty. If you answer it in the way that I said.

A. Yes.

Upon further questioning by the prosecutor, McNeil acknowledged that he stated

in his jury questionnaire that he did not believe in capital punishment under any

circumstances. The prosecutor asked him if he could put aside his beliefs in order to

fairly evaluate the evidence and consider the death penalty. McNeil asked the prosecutor

to explain the process for imposing the death penalty again. After the prosecutor

explained the process, the following exchange occurred:

Q. So, I guess, what we really need to know is, are you truthfully going to

be able to set aside the opinion that you have about the death penalty in

order to listen to the evidence with an open mind and truly consider the

option of the death penalty?

A. Yeah. But, I would like to correct myself. The way you explained

them, broken them down to me, and knowing my honest beliefs on this, I

am going to have to say no, I guess. Because if - - me, personally, if I took

the chance and, if selected, knowing these things, and it came out to be the

death penalty, you know, that is almost putting yourself in a situation. So, I

would have to say no, no.

Q. Then you are telling us that you cannot honestly participate in a process

where the answers to those questions as yes, yes and no, if you, and

knowing that now, you cannot participate, honestly, in that process that

might impose the death penalty?

A. Right. Yes. That is correct.

McNeil continued to express reservations about his ability to serve as a juror in the

instant case when questioned by defense counsel:

Q. Let me say, it is going to be hard for anybody to sit on this jury because

- - I mean, we are - - this is reality right here. The state wants to execute

this man right here. It is going to be hard for any juror, then, on this case.

Okay?

But, like I said, he is entitled to have somebody that is opposed to the

death penalty sit on the jury, just like the state is entitled to have somebody

that favors the death penalty, if they can set aside [their] personal feelings

and make a decision based upon the evidence. That is the bottom line. Can

you do that?

A. I would have to say no, knowing what may be the outcome. Because

there is always the possibility it could go either way. I guess that is my true

feelings. I could go and listen to the evidence with the other jurors, and go

by this list, but - - I mean, ultimately, based upon how this is answered, this

person's life is - - if it came to death penalty I would feel that I contributed

to that.

Granted, if this person, if he is found guilty, I don't know, I feel that,

I guess, with the death penalty, I feel that it is an easy way out. If you take

somebody's life, I think that you - - he should be allowed to live and deal

with it. But, based upon what we are talking about here, it would be hard.

Q. So, regardless of what the state proved, regardless of what they put on,

you would always answer these questions in such a way where a life

sentence would be imposed instead of [the] death penalty?

A. Yes.

The prosecutor challenged McNeil for cause and defense counsel objected, arguing

that "at one point" McNeil said he could set aside his beliefs and honestly answer the

special issues. Although McNeil vacillated at one point, he ultimately testified that he

could not set aside his beliefs and answer the special issues in such a way as to impose the

death penalty; thus, we defer to the trial court's discretion. (22) Point of error one is

overruled.

IV. JURY OATH

In his fifth point of error, the appellant argues that "[t]he trial court abused its

discretion when it failed to administer the required oath to the jury pursuant to [A]rticle

35.22 of the Texas Code of Criminal Procedure, in violation of the Sixth and Fourteenth

Amendments to the United States Constitution and Article 1, Section 10 of the Texas

Constitution." Article 35.22 provides as follows:

When the jury has been selected, the following oath shall be administered

them by the court or under its direction: "You and each of you do solemnly

swear that in the case of the State of Texas against the defendant, you will a

true verdict render according to the law and the evidence, so help you God."

After jury selection, the trial court administered the oath to the jury using the following

language: "Do you and each one of you solemnly swear or affirm that you will a true

sentence return, based on the evidence and the facts in this case, so help you God?" The

appellant complains that the oath was not in compliance with Article 35.22 because the

trial court used the word "sentence" in place of the word "verdict."

Defense counsel failed to object on this basis when the trial court administered the

oath at the beginning of the trial. After closing arguments during the guilt phase of the

trial, defense counsel made the following request: "Your Honor, before the case is

submitted to the jury, we would ask that the jury be sworn, as required by 35.22, of the

Code of Criminal Procedure." Defense counsel stated that this was not done at the

beginning of the trial. The trial court replied, "I believe you're wrong, but I will go ahead

and redo that, if you would like." The prosecutor countered, "It's unnecessary, judge.

You have already sworn in this jury. They don't need to hear it twice. It's been done. If

you want to, it's fine." The trial court then overruled defense counsel's request and sent

the jury to the jury room. Shortly thereafter, the trial court reconsidered its ruling and

proceeded to the door of the jury room to administer the oath. The trial court stated,

"Now, this time, out of an abundance of caution, even though I believe the record will

reflect this jury was duly sworn, I am going to give the oath under 35.22, as requested by

the defense." Defense counsel objected that the oath was untimely, and the trial court

overruled the objection and administered the oath as follows:

THE COURT: All right. Would all of you please stand and raise your right

hand?

Do you and each of you solemnly swear that in the case of the State

of Texas against the defendant, Joshua Maxwell, you will a true verdict

render, according to the law and the evidence, so help you God?

JURORS: I do.

The appellant asserts that the jury was unsworn because the oath that the trial court

administered to it at the beginning of the trial was not in the form prescribed by Article

35.22. He argues that it is mandatory for the jury to be given the oath in the form

prescribed by Article 35.22, citing Howard, Crisp, and Leer v. State (23) in support of his

claim. In Howard, the judgment of conviction was reversed because the jury was not

sworn, as provided by the statute , when impaneled to try the particular case at hand. (24) In

Crisp, the judgment of conviction was reversed because the trial court omitted "so help

you God" when administering the oath. (25) In Leer , the judgment of conviction was

reversed because "another and different oath was administered to the jury than the one

prescribed by law." (26) These cases can all be distinguished from the case at hand because

here the proper and correct jury oath was read to the jury before jury deliberation.

We have held that the complete failure to administer the proper jury oath is a

reversible error that may be raised for the first time on appeal. (27) However, in this case,

there was not a complete failure in the administration of the jury oath. The trial court

administered the jury oath at the beginning of trial with a slight variance. Defense

counsel failed to object at that time. Instead, defense counsel waited until after closing

arguments and at the time immediately before the jury was to begin deliberations to raise

this issue. The current rules of procedural default require a defendant to object "at a time

when the trial court is in a proper position to do something about it." (28) The proper time in

this case to raise an objection was at the beginning of trial, and the trial court did do

something about the variance; when the issue was raised, the trial court promptly gave the

oath.

Furthermore, the appellant never objected at trial on the basis of the Sixth and

Fourteenth Amendments to the United States Constitution and Article 1, Section 10 of the

Texas Constitution. As a result these claims were not preserved for review. Point of

error five is overruled.

V. EVIDENCE OF FLIGHT

In his second point of error, the appellant asserts that the trial court erroneously

admitted uncharged-misconduct evidence during the guilt phase of the trial. He

complains specifically about the evidence of the high-speed chase and the shoot-out with

police that occurred during his flight from police officers in San Francisco. He argues

that this evidence was inadmissible because it was irrelevant, cumulative, and more

prejudicial than probative. (29) He also contends that the admission of this evidence violated

his pretrial motion in limine.

Evidence that a defendant fled is admissible as a circumstance from which an

inference of guilt may be drawn. (30) Before evidence that the defendant fled may be

admitted, however, it must appear that it has some relevance to the charged offense. (31)

Once this relevance requirement is met, this evidence is admissible unless the defendant

shows that the flight was due to circumstances unrelated to the charged offense. (32) A lapse

of time between commission of the offense and the defendant's flight does not always

adversely affect admissibility of evidence. (33) The fact that uncharged misconduct is

committed while the defendant is fleeing does not render the evidence inadmissible. (34) So

long as the uncharged misconduct is shown to be a relevant circumstance of the

defendant's flight, it may be admitted before the jury. (35)

The trial court granted the appellant's pretrial motion in limine requesting that the

State not be permitted to present evidence of uncharged misconduct without first having a

hearing outside the presence of the jury to determine its admissibility. Prior to the State's

presentation of the evidence of the appellant's flight, and outside the jury's presence,

defense counsel lodged his objections to the evidence. The trial court overruled defense

counsel's objections and stated:

. . . The circumstances, which occurred, [are] more probative in value than

prejudicial, in my mind. Particularly, in light of the fact that at the time that

the chase initially occurred, the only offense to which the police reasonably

believed there was involved with the driver of that vehicle, Mr. Maxwell,

was that he had run a red light.

Certainly, the facts that occurred afterwards leaves an inference of

guilt, as is stated in the case laws [sic] and is admissible for those reasons.

Flight is an indication of guilt, as you know.

The State then called six witnesses to testify about the appellant's flight and

subsequent arrest in San Francisco. Officers Juarez and Pena testified that the appellant

sped through an intersection in a gold pickup truck, drove away when they attempted to

stop him for the traffic offense, led them on a chase through the downtown area in rush

hour traffic, and fired at them during the chase. They further testified that the bullet fired

by the appellant penetrated their windshield, came within inches of hitting Juarez, and

sprayed their car with tiny glass fragments, which scratched Pena's eyes. Kerry

Dalrymple of the San Francisco Emergency Communications Department testified

regarding the police radio transmissions that were recorded during the chase. Officer

Seidell testified that he became involved in the chase after it was already underway.

During the chase, Seidell observed that the appellant "reached out with his left arm and

hand and raised his middle finger and flipped us off." Officer McDonagh testified that he

set up a roadblock with his vehicle, which stopped traffic and ultimately ended the chase.

Officer Haskell testified that he transported the appellant to the police station after the

chase ended, that he searched the appellant when they arrived at the police station, and

that the appellant was wearing a gold-chain necklace at that time.

The appellant was driving Lopes's truck when the San Francisco police attempted

to stop him for a traffic violation on October 17, five days after Lopes's body was found

and his truck was reported missing. The appellant was in possession of Lopes's personal

belongings, including his handgun, which the appellant used to fire at police during the

chase. The fact that the appellant went to such great lengths to elude capture after being

stopped for a minor traffic violation was relevant to, and indicative of, his guilt with

regard to Lopes's murder.

The trial court took measures to prevent the flight evidence from being cumulative.

It refused to admit the audio recording of the police radio transmissions, instead admitting

only a redacted, printed version. It allowed Seidell to testify about the appellant's hand

gesture, but refused to allow him to testify about the facial and verbal expressions that

accompanied it. It permitted McDonagh to testify "as to the very limited portion and

scope of . . . the extraordinary measures that were taken by the defendant and what had to

be done to stop the chase." Finally, it limited Haskell's testimony to the events that

transpired after the chase ended.

The trial court did not abuse its discretion in admitting the evidence of the

appellant's flight and the uncharged misconduct that he committed in the course of his

flight. Point of error two is overruled.

VI. LESSER-INCLUDED OFFENSES

The appellant asserts in his third point of error that the trial court erroneously

refused to instruct the jury on the lesser-included offenses of robbery, theft, unauthorized

use of a motor vehicle, and unlawfully carrying a weapon. He argues that the trial court's

refusal to instruct the jury on these lesser-included offenses violated his rights under the

Sixth and Fourteenth Amendments to the United States Constitution and Article I, § 10 of

the Texas Constitution.

We use a two-prong test to determine whether a defendant is entitled to an

instruction on a lesser-included offense. (36) The first step in our analysis is to determine if

the lesser offense is included within the proof necessary to establish the offense

charged. (37) The second step requires an evaluation of the evidence to determine whether

there is some evidence that would permit a jury to rationally find that the defendant is

guilty only of the lesser offense. (38) In other words, there must be some evidence from

which a jury could rationally acquit the defendant of the greater offense while convicting

him of the lesser-included offense. (39) The evidence must establish the lesser-included

offense as a valid rational alternative to the charged offense. (40)

In order to convict the appellant of capital murder, the charge required the jury to

find beyond a reasonable doubt that the appellant intentionally committed murder in the

course of committing or attempting to commit robbery or kidnapping. Robbery is

contained within the proof necessary for murder in the course of robbery. Theft is

included within the proof necessary to establish robbery. However, unauthorized use of a

motor vehicle and unlawfully carrying a weapon are not included within the proof

necessary to establish the offense charged under the circumstances in the instant case. (41)

Therefore, unauthorized use of a motor vehicle and unlawfully carrying a weapon are not

lesser-included offenses of the capital murder charged in this case.

The appellant argues that the jury could have believed that McFarland was

responsible for the robbery, kidnapping, and murder, and that the appellant "came into the

situation" at a time when he would be guilty only of unauthorized use of a motor vehicle

and theft. He also argues that the jury could have believed that McFarland was the one

who committed the murder and all of the underlying crimes and that the only thing that

the appellant was guilty of was being with her. The evidence shows otherwise. A

witness testified that he saw a man and a woman in Lopes's truck parked near the spot

where Lopes's body was later found. Another witness testified that she heard a gunshot

shortly thereafter. The appellant and McFarland were apprehended six days later, after

leading officers on a chase through downtown San Francisco. The appellant was driving

Lopes's truck, which contained Lopes's gun and personal belongings and the gun that

killed Lopes. Finally, while in the county jail awaiting trial, the appellant admitted his

direct involvement in Lopes's murder and described the circumstances of Lopes's death.

The jury could not have rationally acquitted the appellant of capital murder while

convicting him of any of the lesser-included offenses. (42) The appellant has failed to satisfy

the second prong of the test; thus, the trial court did not err in refusing his request that the

jury be instructed on the lesser-included offenses of robbery and theft. Point of error

three is overruled.

VII. JURY MISCONDUCT

In his fourth point of error, the appellant contends that the trial court erred in

denying his motion for a mistrial "based upon juror misconduct in receiving outside

influences." (43) He also argues that he was denied the right to full inquiry because the trial

court refused to let him question all of the jurors about outside influences. (44)

The record reflects that during the punishment phase Juror Morgan Miles called

her brother, Robert Lee, an attorney in Dallas, to ask him "what a 403 was." Miles

testified that Lee was appalled that she would ask him such a question and informed her

that if she had any questions she should present them in writing to the judge. They did

not discuss the facts of the case, and their conversation lasted less than a minute. Lee

called back "like five seconds later" and told Miles that she should not have called him

and that she could have caused a mistrial. Miles testified that Tom Cox, the jury foreman,

was present in the jury room when she called Lee. Juror Geoffrey Maitland came into the

jury room later, but Miles did not think he was present when she was talking to Lee.

Cox testified that Miles first called her brother and left a message on his answering

machine asking him what 403 meant. Miles also asked Cox what 403 meant, and he

stated "that's where they talk about probative value." Cox asked Miles what kind of law

her brother practiced, and she said that he was a corporate attorney. Miles made a second

phone call and spoke to her brother. She told him that she was serving on a jury and

asked him what 403 meant. The phone call was brief and Miles seemed surprised by her

brother's reaction. When Miles got off the phone, she told Cox that her brother said that

if she had questions, she should to address them in writing to the trial judge. Cox testified

that no other jurors were present when Miles was talking to her brother.

Maitland testified that when he entered the jury room Miles and Cox were present

and Miles was not on the phone. Someone called Miles on her cell phone a few minutes

later and Maitland heard Miles say, "Okay, I won't call you again." After Miles got off

the phone, she mentioned that she called her brother to ask what 403 meant, and that he

became irate and told her that she should address the judge if she had any questions.

Maitland testified that a few other jurors may have been present later when Miles

repeated "that she had called her brother and he got really irate with her." Maitland

stated, "I recall that there may have been, you know, two or three additional jurors.

Specifically, who they were, I do not know."

Robert Lee, Miles's brother, testified via telephonic conference call regarding the

details of his conversation with Miles:

This morning - - approximately, 8:30 this morning - - I received a phone

call from my sister, Morgan Miles. In that phone call, she informed me, for

the first time, that she was on a capital murder case, and she said that they

were in the punishment phase. I just kind of said, "Wow, that's amazing."

And she said, "Well, I just - - we had a question about one of the

rules or one of the issues," and I don't remember exactly, but it was along

of lines of she had a question concerning how something was to be

interpreted. And as soon as she started to ask, I immediately said, "Hold

on. Hold on. Hold on." I said, "Did anyone instruct you that you're not

suppose[d] to be getting any information outside the courtroom?" And she

goes, "Well, no, I don't remember that."

I said, "Well, if I were to provide you any information or you were to

get any information and impart that to your fellow jurors, you would have a

nullification of the trial and it would be like a mistrial. And it would be

completely improper for me to say anything." And she said, "Well, I just

wanted to know." I said, "I don't care. I cannot say anything, whatsoever."

At that point, she said, "Okay," and we hung up.

I immediately, maybe two minutes later, called back, onto her cell

phone, and told her, "You need to bring whatever issues you have to the

judge's attention." And she said, "Okay. I won't call you again," and then

hung up. That was pretty much the extent of that conversation.

* * *

Well, when I got back into the office - - when I got to the office, I

was - - like I said, I was in my parking garage practically - - I had a message

on my recorder and it obviously had been made before the phone call I

received. And on that message was, "We - - I just wanted to know," I don't

remember "we" or "I," but "just wanted to know whether, you know, what

is meant by," I think she said, "Rule 403." And she was saying something

about the difference between prejudicial evidence versus nonprejudicial.

And I heard, in the background, someone prompting her on the rule

number. It sounded like a male voice of some kind, prompting her. Which,

initially, led me to believe that, possibly, they could be in the jury

deliberation room of some kind, and that she was - - and that maybe the

original phone call and that phone call were made on her cell phone in some

type of jury deliberation room of some kind.

* * *

And I never called back after that point. That's when I discussed it

with a couple other attorneys here and then called the court.

After hearing the testimony of Miles, Cox, Maitland, and Lee, the trial court

denied the appellant's motion for a mistrial. The trial court also refused to allow defense

counsel to question the remaining jurors. The trial court did, however, comply with

defense counsel's request to admonish the jurors again not to discuss the case with other

people and not to watch or read any media reports about the case.

Article 36.22 provides, "No person shall be permitted to be with a jury while it is

deliberating. No person shall be permitted to converse with a juror about the case on trial

except in the presence and by the permission of the trial court." The appellant has the

burden of proving an allegation of juror misconduct. (45) When a juror converses with an

unauthorized person about the case, injury is presumed. (46) However, the State may rebut

this presumption of harm by showing that the case was not discussed or that nothing

prejudicial to the accused was said. (47) We defer to the trial court's resolution of historical

facts and its determinations concerning credibility and demeanor, and we view the

evidence in the light most favorable to the trial court's ruling. (48) Where there is

conflicting evidence there is no abuse of discretion if the motion is overruled. (49)

Miles admitted that she conversed with Lee during the punishment phase of the

trial. Miles briefly asked Lee what "403" meant, and they did not discuss the facts of the

case. Lee refused to answer Miles's question, reprimanded her for calling him, and told

her to direct her questions in writing to the judge. He quickly terminated the conversation

and informed the trial court of the situation. Cox and Maitland were aware that Miles

conversed with Lee. Miles, however, only related to them that Lee became angry, refused

to answer her question, and told her to address her question to the judge. Miles, Cox, and

Maitland all testified that they would follow the instruction to base their decision solely

on the evidence presented in the courtroom and to follow the law given to them by the

trial court. At the close of the hearing, the trial court stated that the communication

between Miles and Lee was improper, but concluded that there was no harm because

there was no indication that the jury was tainted by the improper communication. The

evidence, viewed in the light most favorable to the trial court's ruling, supports the trial

court's decision to deny the appellant's motion for a mistrial.

There was conflicting evidence as to whether any other jurors were aware of

Miles's conversation with Lee. Miles testified that Cox was present during the entire

conversation and that Maitland entered the jury room later. Cox testified that he was the

only person present when Miles was talking to Lee. Maitland testified that a few other

jurors might have heard Miles say that she had called her brother and he became angry

with her. We defer to the trial court and discern no abuse of discretion in the trial court's

decision not to allow the appellant to question the rest of the jury on this issue. (50) Point of

error four is overruled.

VII. UNCHARGED MISCONDUCT

In his sixth point of error, the appellant challenges the admission of evidence that

he and McFarland robbed and murdered a man named Robert Bott in Indiana about a

month prior to the instant offense. He argues that the trial court abused its discretion by

admitting evidence of this uncharged misconduct during the punishment phase of his trial.

Article 37.071, Section 2(a) gives the trial court wide latitude in admitting or

excluding evidence of extraneous offenses at the punishment stage of a capital trial. (51)

The trial court has the discretion to admit any evidence relevant to the jury's

determination of a capital defendant's deathworthiness. (52) The trial court's ruling will be

upheld as long as it was within the zone of reasonable disagreement. (53)

When offering uncharged misconduct during the punishment phase of a capital

trial, the State need not prove all of the elements of an uncharged offense. (54) However, the

State must clearly prove that the uncharged offense was committed and that the defendant

was the perpetrator of the offense. (55)

The State introduced evidence that Bott's body was found in Marion County,

Indiana, on September 12, 2000. His badly charred body was inside the trunk of his

Mercury Cougar automobile, which had been set on fire. He had suffered a fatal gunshot

wound to his chest, and his hands and feet had been bound together behind his back. The

medical examiner did not recover a bullet from Bott's body during the autopsy.

When police arrived at Bott's residence in Mooresville, Indiana, they discovered

that the back door was open and the house was in disarray. The appellant's fingerprints

matched the fingerprints on a vodka bottle and a wine bottle in the kitchen. McFarland's

fingerprints matched the fingerprints on the refrigerator door, a videotape, and a pizza

box. A pizza delivery slip found in Bott's bedroom contained the appellant's name and

the address of a house in nearby Indianapolis where the appellant had been staying with

McFarland.

Police searched the house in Indianapolis and found several items belonging to

Bott, including his wallet, various forms of identification, credit cards, and bank

statements. The appellant's fingerprints matched the fingerprints on a sales receipt in

Bott's wallet. Substances that appeared to be blood and vomit trailed from the basement

to the outside of the Indianapolis residence. The basement smelled strongly of chemicals

and contained some empty gallon jugs of muriatic acid. A spent cartridge casing was

recovered from an overturned wooden wardrobe cabinet in the basement. A spent bullet

was recovered from a sweater inside the wardrobe cabinet. A firearms examiner testified

that the gun that fired the spent bullet and spent cartridge casing was the same gun that

was used to kill Lopes in this case.

The appellant, Bott, and a female were seen shopping at two retail stores in the

Indianapolis area at 11:30 p.m. on September 10 and at 5:00 a.m. on September 11. Bott

used his credit card to purchase approximately $2500 of merchandise at the first store.

When the night manager commented that they were buying an unusually large amount of

merchandise at that time of night, the appellant explained that he and the female were

getting married and that Bott was his uncle and was buying them the merchandise as a

wedding gift. Bott made a credit card purchase of approximately $1100 at the second

store, where the threesome were recorded on the store's security surveillance camera. At

approximately 6:00 a.m. on September 11, a man was recorded on videotape making

withdrawals with Bott's ATM card at a nearby Bank One ATM terminal. He made two

withdrawals, and his attempt to withdraw more money was declined because it exceeded

the daily limit.

When police searched Lopes's truck after the appellant and McFarland were

captured in California, they found a map with a route drawn from Indiana to Florida to

Texas to California. Police also found a videotape that depicted the appellant admitting

his involvement in a murder. The appellant explained on the videotape that he forced a

man to take him on a shopping spree, stole items from his house, killed him, put him in

his car, and burned him.

The evidence that the appellant killed Bott was relevant to, and probative of, the

issue of future dangerousness. The State provided clear proof that an offense was

committed and that the appellant was the perpetrator. The trial court's decision to admit

this evidence was within the zone of reasonable disagreement.

The appellant also alleges in his sixth point of error that the evidence is

insufficient to support the jury's affirmative answer to the future dangerousness special

issue. In addition to the evidence that the appellant robbed and murdered Bott, the State

presented, during the punishment phase, evidence that the appellant had a lengthy

criminal history, including numerous adjudications and convictions both as a juvenile and

as an adult. The State also presented evidence that the appellant wrote graffiti in his cell,

verbally threatened guards, and physically assaulted a deputy while he was incarcerated in

the county jail awaiting trial for this offense. The facts of this case and the circumstances

of the appellant's flight also support the jury's answer to the future dangerousness

question. (56) The evidence, viewed in the light most favorable to the verdict, is sufficient to

support the jury's affirmative answer to the future dangerousness special issue. (57) Any

rational trier of fact could have found beyond a reasonable doubt that there is a

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

continuing threat to society. (58) Point of error six is overruled.

We affirm the judgment of the trial court.

Delivered: November 17, 2004

Do Not Publish

1. Tex. Pen. Code § 19.03(a).

2. Art. 37.071, § 2(g). Unless otherwise indicated, all references to Articles refer to the

Texas Code of Criminal Procedure.

3. Art. 37.071, § 2(h).

4.

See Jackson v. Virginia, 443 U.S. 307, 319 (1979).

5.

Ladd v. State, 3 S.W.3d 547, 557 (Tex. Crim. App. 1999).

6.

Jackson, 443 U.S. at 319 .

7.

Zuniga v. State , No. 539-02, slip op. at 14, 2004 Tex. Crim. App. LEXIS 668 (Tex.

Crim. App., delivered April 21, 2004).

8.

Goodman, 66 S.W.3d at 296 .

9.

Witherspoon v. Illinois, 391 U.S. 510 (1968).

10. Id., at 522 .

11. Wainwright v. Witt, 469 U.S. 412, 424 (1985).

12. Colburn v. State, 966 S.W.2d 511, 517 (Tex. Crim. App. 1998).

13. Ibid.

14. Ibid.

15. Ibid.

16. Neither the prosecutor nor defense counsel challenged Hernandez on this basis.

17.

Colburn , 966 S.W.2d at 517 .

18.

Ibid.

19.

Ibid.

20.

Ibid.

21.

Ibid.

22.

Ibid.

23.

Leer v. State , 2 Tex. Ct. App. 495 (1877) .

24.

Howard v. State , 192 S.W. 770, 773 (1917).

25.

Crisp v. State , 220 S.W. 1104, 1106 (1920). The holding that the oath must include

"so help you God" was overruled in Craig v. State, 480 S.W.2d 680, 684 (Tex. Crim. App.

1972).

26.

Leer , 2 Tex. Ct. App. at 496 .

27.

White v. State, 629 S.W.2d 701, 704 (Tex. Crim. App. 1981) (citing Howard v. State,

80 Tex. Crim. 588 , 192 S.W. 770 (1917)) .

28.

See Posey v. State, 966 S.W.2d 57, 62 (Tex. Crim. App. 1998) (citing Lankston v.

State, 827 S.W.2d 907, 909 (Tex. Crim. App. 1992)).

29. Tex. R. Evid. 401, 402, 403.

30.

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

31.

Burks v. State, 876 S.W.2d 877, 903 (Tex. Crim. App. 1994) .

32.

Ibid.

33.

Ibid.

34.

Foster v. State, 779 S.W.2d 845, 859 (Tex. Crim. App. 1989) .

35.

See ibid.; Alba, 905 S.W.2d at 586 .

36.

Rousseau v. State, 855 S.W.2d 666, 673 (Tex. Crim. App. 1993) .

37.

Ibid.

38.

Moore v. State, 969 S.W.2d 4, 8 (Tex. Crim. App. 1998); Rousseau, 855 S.W.2d at

672 .

39.

Moore, 969 S.W.2d at 8 .

40.

Wesbrook v. State, 29 S.W.3d 103, 113-14 (Tex. Crim. App. 2000) .

41. Art. 37.09;

Jacob v. State, 892 S.W.2d 905, 906 (Tex. Crim. App. 1995) (stating that

the determination of whether an offense is a lesser-included offense must be done on a

case-by-case basis).

42.

Moore, 969 S.W.2d at 8 .

43.

See Art. 36.22.

44.

See Tex. R. Evid. 606(b).

45.

Hughes v. State, 24 S.W.3d 833, 842 (Tex. Crim. App. 2000) .

46.

Alba, 905 S.W.2d at 587 .

47. Ibid.

48. Quinn v. State, 958 S.W.2d 395 , 401- 402 (Tex. Crim. App. 1997).

49. Hughes, 24 S.W.3d at 842 .

50.

Ibid.

51.

Id., at 843.

52.

Ibid.

53.

Ibid.

54.

Powell v. State, 898 S.W.2d 821, 830 (Tex. Crim. App. 1994) .

55.

Chamberlain v. State, 998 S.W.2d 230, 235 (Tex. Crim. App. 1999) .

56.

See Sonnier v. State, 913 S.W.2d 511 , 516 -17 (Tex. Crim. App. 1995) (holding that

the facts of the offense alone may be sufficient to support an affirmative answer to the future

dangerousness question).

57.

Jackson, 443 U.S. at 319 (1979).

58.

Ibid.