Russeau, Gregory

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

No. AP-74,466

GREGORY RUSSEAU, Appellant

v.

THE STATE OF TEXAS

ON DIRECT APPEAL

FROM SMITH COUNTY

Holcomb, J., delivered the opinion of the Court, in which Price, Womack,

Johnson, and Cochran, JJ., joined. Keasler, J., filed a dissenting opinion. Keller,

P.J., and Meyers and Hervey, JJ., dissented without written opinion.

A Smith County jury found appellant guilty of capital murder under Texas Penal Code §

19.03(a)(2). Appellant's punishment was assessed at death. We will affirm in part and reverse in

part.

The Record Evidence

The record reflects the following: On May 30, 2001, 75-year-old James Syvertson was

murdered at his Tyler auto repair garage. Syvertson's widow testified at trial that he left for work

at approximately 7:00 a.m. on the day in question and that she spoke with him on the telephone

sometime that morning. She further testified that he ate lunch at a "Luby's" cafeteria every day and

that he usually left the garage at about 10:45 a.m. in order to "beat the crowd." The manager of the

"Luby's" cafeteria testified that he saw Syvertson at approximately 11:00 a.m. on the day in

question.

Mrs. Syvertson testified that she went to Syvertson's garage sometime between 11:00 a.m.

and noon. At that time, she noticed Syvertson's gray Chevrolet Corsica parked outside. The doors

to the garage were locked. She knocked on the doors but got no answer, so she left.

Katie Jordan testified that she contacted Syvertson by telephone sometime between 11:30

and 11:45 a.m. Syvertson told her that he could do some repair work for her employee, Bob Bruner,

if he brought his car to the garage right away. When Bruner arrived at the garage between 12:20 and

12:30 p.m., the gray Corsica was parked outside, a light was on inside the garage, and a large fan was

running on the side of the garage, but the doors to the garage were locked. Bruner knocked but got

no answer. Bruner parked his car outside the garage and left. At 1:30 p.m., Bruner called Syvertson

from his cell phone but got no answer. Bruner drove by the garage at about 2:00 p.m. The gray

Corsica was still parked outside, and the light and fan were still on. Bruner returned to the garage

at about 5:30 p.m. The gray Corsica was still parked outside, the light and fan were still on, and the

garage doors were locked. Bruner knocked on the garage doors again but got no answer.

Mrs. Syvertson testified that she went back to the garage sometime in the afternoon and

found the doors still locked. She knocked but got no answer. She went to get her daughter, who had

a key to the garage. When they returned at 7:00 p.m., the gray Corsica was gone. Once inside the

garage, they found Syvertson's body lying face down in a pool of blood next to a white Chevrolet

Corsica. (Apparently, Syvertson was working on the white Corsica when he was murdered.) Rigor

mortis had set in, and it appeared that Syvertson had been hit in the head several times with a hard

object. The wallet he usually carried and the keys he usually kept clipped to his belt loop were both

missing, and one of his pants pockets had been turned inside out. Several valuable tools were also

missing from the garage. A bolt on an office door was broken and hanging by a single screw. Police

testified that the door "looked like it had been kicked in."

The medical examiner who performed the autopsy on Syvertson's body testified that the

manner of death was homicide and the cause of death was blunt force head injuries. Syvertson

suffered multiple abrasions and lacerations to the front and back of his head. Many of the abrasions

had a crescent or half-moon shape, and one had a circular outline. The blows were delivered with

a blunt object that had a round, flat surface and was either fairly heavy or used with a great deal of

force. The medical examiner estimated that the time of death was between 11:00 a.m. and 2:00 p.m.

Several witnesses testified that they saw appellant in the vicinity of the garage on the day of

the murder. Robert Menefee testified that appellant came to his house "sometime after lunch" and

inquired about buying some illicit drugs. Terry Seaton testified that appellant arrived at his house

on foot at 3:00 p.m. Appellant told Seaton that he had been getting "high" on crack cocaine and

asked Seaton whether he would sell him some crack. Seaton refused to sell drugs to appellant but

gave appellant a small amount of change and drove him to "some duplexes" nearby.

At about 7:30 p.m., appellant arrived at the home of his friend Lisa Tucker, who was about

to leave on a date with her boyfriend, Marcus Tilley. Appellant told Tucker and Tilley that his car

had broken down, and he asked for a ride to his mother's house. On the way, appellant pointed to

a gray Corsica parked behind a house and told them that it was his wife's car and that it had stalled.

As they approached the intersection near Syvertson's garage, they saw police, an ambulance, and

crime scene tape. Tucker and Tilley wanted to drive by the garage to see what was going on, but

appellant asked that they continue driving. Tilley decided to turn and drive by the garage. Before

they reached appellant's mother's house, appellant had Tilley drop him off "at a house on Gaston

Street." Menefee's residence was on Gaston Street.

Appellant visited Menefee's residence again that evening. They talked briefly, and appellant

left on foot. Between 9:00 and 10:00 p.m., appellant returned to Seaton's house and spoke to him

for a few minutes, then continued down the alley on foot.

Lashundra Hall testified that she saw appellant smoking crack cocaine in Longview sometime

in the afternoon or evening. She saw him again at about 3:20 a.m. the next morning, and appellant

was driving a gray Corsica. He asked her where he could "get more crack and rent the car out for

crack." She got into the car, but they were stopped by Longview police about ten minutes later.

Police discovered title and registration documents to the gray Corsica in appellant's pocket.

Syvertson's keys were in the ignition.

Fingerprint and DNA evidence recovered from the garage connected appellant to the crime.

Appellant's fingerprints and a palm print were found on the white Corsica next to Syvertson's body.

Syvertson's son testified that a hammer leaning against a plastic bottle on a shelf near the body was

out of place. Hairs found on the bottle were consistent with appellant's DNA.

Witnesses testified that a man named Ray Charles Berry was in the vicinity of Syvertson's

garage at 1:30 p.m. on the day of the murder. Berry, who lived in the neighborhood, was seen

standing near Syvertson's garage at 1:30 p.m. eating lunch out of a brown paper sack. No evidence

linked Berry to the crime; Berry's fingerprints did not match any of those found on the white

Corsica. In a hearing outside the presence of the jury, Berry invoked his Fifth Amendment right

against self-incrimination.

The Sufficiency of the Evidence

In his first point of error, appellant argues that the record evidence is legally insufficient to

support his conviction for capital murder. 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. See

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

To convict appellant of capital murder, the jury was required to find beyond a reasonable

doubt that appellant intentionally committed murder in the course of committing or attempting to

commit robbery or burglary. Appellant argues that the evidence is legally insufficient to show

murder in the course of robbery because the State failed to prove intent to rob Syvertson during or

prior to his murder. However, the evidence in a capital murder prosecution need be sufficient to

establish only one of the underlying felonies alleged in the indictment. Ladd v. State, 3 S.W.3d 547,

557 (Tex. Crim. App. 1999); Matamoros v. State, 901 S.W.2d 470, 474 (Tex. Crim. App. 1995).

Thus, if the evidence in this case established burglary, we need not examine whether there was

sufficient evidence to show robbery.

A person commits a burglary if, without the effective consent of the owner, he enters a

habitation, or a building (or any portion of a building) not then open to the public, with intent to

commit a felony, theft, or an assault. See Tex. Pen. Code § 30.02. In a prosecution for capital

murder, the requirement that a felony be committed is satisfied by the murder of the victim.

Matamoros, 901 S.W.2d at 474 . The evidence also showed a lack of consent to enter the garage.

Specifically, police officers testified that the door to the office in the garage was damaged and looked

as if it had been "kicked in." Based on the evidence at trial, a rational jury could have concluded

beyond a reasonable doubt that appellant committed murder in the course of burglary. Point of error

one is overruled.

In his second point of error, appellant contends that the evidence of intent to commit robbery

or burglary was factually insufficient to support the jury's verdict. In a factual sufficiency review,

we view all of the evidence in a neutral light and we will set the verdict aside only if the evidence

is so weak that the verdict is clearly wrong and unjust, or the contrary evidence is so strong that the

"beyond a reasonable doubt" standard of proof could not have been met. Zuniga v. State, 144

S.W.3d 477, 484-85 (Tex. Crim. App. 2004). A clearly wrong and unjust verdict occurs when the

jury's finding "shocks the conscience" or "clearly demonstrates bias." Santellan v. State , 939

S.W.2d 155, 164 (Tex. Crim. App. 1997).

Appellant offered evidence that Berry may have committed the crime, that no one saw

appellant in or near the garage, and that no one proved appellant stole the gray Corsica. Viewing all

the evidence in a neutral light, we conclude that the evidence supporting the verdict was not so weak

as to be clearly wrong and unjust. There was ample evidence showing that appellant was in the

midst of a drug binge on the day of the murder, that he was in search of crack cocaine, and that he

was willing to rent out Syvertson's gray Corsica in order to get more drugs. Appellant's fingerprints,

a palm print, and some of his hair were found next to Syvertson's body. Appellant was found

driving Syvertson's gray Corsica and the title documents were found in appellant's pocket. The keys

to the gray Corsica, which Syvertson usually wore on his belt, were found in the ignition of the car

when appellant was stopped by police. In light of the overwhelmingly inculpatory evidence, the

contrary evidence is not so strong that the standard of proof could not have been met. Point of error

two is overruled.

In his tenth point of error, appellant challenges the legal sufficiency of the evidence at the

punishment phase of the trial. Appellant claims the evidence was legally insufficient to support the

jury's affirmative answer to the special issue concerning his future dangerousness. (1) We review the

evidence in the light most favorable to the jury's verdict to determine whether any rational trier of

fact could have concluded beyond a reasonable doubt that "there is a probability that the defendant

would commit criminal acts of violence that would constitute a continuing threat to society." Tex.

Code Crim. Proc. art. 37.071 § 2(b)(1).

At the punishment phase, the State introduced evidence that appellant had several prior

felony and misdemeanor convictions for, among other things, engaging in organized criminal

activity, burglary of a habitation, theft, burglary of a building, attempted burglary of a building,

burglary of a vehicle, and possession of a controlled substance; that he committed numerous

disciplinary infractions while incarcerated in the Smith County Jail and in the Texas Department of

Criminal Justice, Institutional Division (TDCJ); (2) and that he had multiple probation and parole

violations. In addition, a psychologist and two psychiatrists testified that appellant exhibited

characteristics of anti-social personality disorder and that he would likely commit criminal acts of

violence in the future. One of the psychiatrists also testified, without objection, about appellant's

numerous disciplinary offenses while incarcerated in the Smith County Jail and in the Texas

Department of Criminal Justice. All of this evidence, when combined with the evidence of the

horrific offense of which appellant was convicted in this case, was clearly sufficient to support the

jury's affirmative answer to the future dangerousness special issue. Point of error ten is overruled.

Jury Selection

In points of error fifteen and fifteen-A, appellant contends that the trial court erroneously

granted the State's challenge of prospective juror Tiscareno for cause, in violation of the Fifth, Sixth,

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

Constitution. We disagree.

Prospective jurors who can set aside their beliefs against capital punishment and honestly

answer the special issues are not properly challengeable for cause. Witherspoon v. Illinois, 391 U.S.

510, 522 (1968). Prospective jurors are challengeable for cause if their views about the death penalty

would prevent or substantially impair the performance of their duties in accordance with their

instructions and oath. Wainwright v. Witt, 469 U.S. 412, 424 (1985).

We afford the trial court considerable deference, because it is in the best position to evaluate

a prospective juror's demeanor and responses. Colburn v. State, 966 S.W.2d 511, 517 (Tex. Crim.

App. 1998). We will reverse a trial court's ruling on a challenge for cause only if a clear abuse of

discretion is evident. Ibid . When a prospective juror's answers are vacillating, unclear, or

contradictory, we accord deference to the trial court's decision. We will not second-guess the trial

court when the prospective jurors are persistently uncertain about their ability to follow the law.

In her jury questionnaire, Tiscareno stated that she was generally opposed to the death

penalty, that she could not return a verdict which resulted in the death penalty under any

circumstances, and that her opposition to the death penalty would interfere with her ability to serve

as a juror. But when the trial court questioned Tiscareno, she stated that she could follow the law

and answer the special issues based on the evidence even if it would result in the death penalty.

When questioned by the State, Tiscareno again said that she could answer the special issues based

on the evidence, despite her personal beliefs about the death penalty, but that she would hold the

State to a higher burden of proof than beyond a reasonable doubt because it was a capital case. Upon

questioning by defense counsel, Tiscareno stated she could follow the law regarding the burden of

proof. The trial court then explained the burden of proof and questioned Tiscareno again. After

expressing doubts, Tiscareno finally stated that she could hold the State to its proper burden.

Tiscareno was challenged for cause. Upon granting the challenge, the trial court concluded

that Tiscareno had "a bias or prejudice as to the law upon which the State and the defense are entitled

to rely." The trial court further stated: "She is vacillating with respect to her ability, and even when

I questioned her at the very end to try to clarify it, she still vacillated in her . . . answers to the Court."

We defer to the trial court's ruling on a challenge for cause, because the trial judge was

present to observe the demeanor of the prospective juror and to listen to her tone of voice. Feldman

v. State , 71 S.W.3d 738, 744 (Tex. Crim. App. 2002). And, we give particular deference to the trial

court when the potential juror's answers are vacillating, unclear or contradictory. Ibid . The record

reflects that Tiscareno vacillated about her position on the death penalty and gave conflicting

answers about her ability to follow the law; thus we defer to the trial court, as it was in a better

position to evaluate her ability to serve on the jury. Points of error fifteen and fifteen-A are

overruled.

The Confrontation Clause Guarantee

In points of error sixteen and sixteen-A, appellant argues that the trial court violated his Sixth

Amendment right to confront the witnesses against him when the court admitted in evidence, at the

punishment phase, State's Exhibits numbers 242-254, which were Smith County Jail "incident

reports," and State's Exhibits numbers 255-260, which were TDCJ "disciplinary reports." The trial

court admitted these reports under the business records exception to the hearsay rule. See Tex. R.

Evid. 803(6). The reports contained statements which appeared to have been written by corrections

officers and which purported to document, in the most detailed and graphic of terms, numerous and

repeated disciplinary offenses on the part of appellant while he was incarcerated. It further appeared

that, in writing the statements, the corrections officers relied upon their own observations or, in

several instances, the observations of others. None of the individuals who supposedly observed

appellant's disciplinary offenses testified at his trial. Appellant's alleged disciplinary offenses

included threatening physical harm and even death to others, refusing to work or cooperate, breaking

out of his cell at night, exposing himself and masturbating in front of jailers and other inmates,

verbally abusing jailers and other inmates, fighting with other inmates, and possessing contraband,

including improvised weapons. The record also reflects that most of the written reports detailing

appellant's alleged disciplinary offenses were read aloud to the jury at the punishment phase and that

the prosecutor referred to the reports numerous times during his closing argument at that phase.

The Sixth Amendment's Confrontation Clause provides that, "[i]n all criminal prosecutions,

the accused shall enjoy the right . . . to be confronted with the witnesses against him." This

procedural guarantee is applicable in both federal and state prosecutions, Pointer v. Texas , 380 U.S.

400, 406 (1965), and bars the admission of testimonial statements of a witness who does not appear

at trial unless he is unavailable to testify and the defendant had a prior opportunity to cross-examine

him, Crawford v. Washington , 541 U.S. 36, 59 (2004). Generally speaking, a statement is

"testimonial" if it is a solemn declaration made for the purpose of establishing some fact. Id . at 51.

The reports in question contained testimonial statements which were inadmissible under the

Confrontation Clause, because the State did not show that the declarants were unavailable to testify

and appellant never had an opportunity to cross-examine any of them. Indeed, the statements in the

reports amounted to unsworn, ex parte affidavits of government employees and were the very type

of evidence the Clause was intended to prohibit. Id . at 50. The trial court erred in admitting those

portions of the reports that contained the testimonial statements.

Having found constitutional error, we need not reverse the trial court's judgment if we

conclude beyond a reasonable doubt that the error did not contribute to appellant's punishment.

Chapman v. California , 386 U.S. 18, 24 (1967). See generally W. LaFave, et al. , Criminal

Procedure § 27.6(e) (2d ed. 1999). We cannot so conclude, however. Given the highly damaging

nature of the reports and the fact that the prosecutor repeatedly emphasized them during his closing

argument, we find it impossible to say beyond a reasonable doubt that the reports did not influence

the jury in its assessment of appellant's future dangerousness. We sustain points of error sixteen and

sixteen-A.

In points of error seventeen and seventeen-A, appellant argues that the trial court violated his

right to confrontation under Texas Constitution article I, § 10, when the court admitted in evidence

State's Exhibits numbers 242-260. However, because appellant provides no argument or authority

with respect to the protection provided by the Texas Constitution, we overrule these points of error

as inadequately briefed. See Tex. R. App. Proc. 38.1(h).

Scientific Evidence

In points of error eight and nine, appellant challenges the trial court's admission of certain

scientific evidence at both the guilt and punishment phases of the trial. He argues that the evidence

failed to meet the admissibility requirements of Kelly v. State, 824 S.W.2d 568 (Tex.Crim.App.

1992).

Texas Rule of Evidence 702 provides: "If scientific, technical, or other specialized

knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a

witness qualified as an expert by knowledge, skill, experience, training, or education may testify

thereto in the form of an opinion or otherwise." Under Rule 702, it is the trial court's responsibility

to determine whether proffered scientific evidence is sufficiently reliable and relevant to assist the

jury. Jackson v. State, 17 S.W.3d 664, 670 (Tex. Crim. App. 2000). A trial court's ruling on the

admissibility of scientific expert testimony is reviewed under an abuse of discretion standard.

Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000).

The proponent of scientific evidence must demonstrate to the trial court, by clear and

convincing evidence, that the scientific evidence is reliable. Id . The proponent of "hard" scientific

evidence (3) must satisfy three criteria to demonstrate reliability: (1) the underlying scientific theory

is valid; (2) the technique applying the theory is valid; and, (3) the technique was properly applied

on the occasion in question. Kelly, 824 S.W.2d at 573 . Other non-exclusive factors that could affect

a trial court's determination of reliability include: (1) the extent to which the underlying scientific

theory and technique are accepted as valid by the relevant scientific community, if such a community

can be ascertained; (2) the qualifications of the expert testifying; (3) the existence of literature

supporting or rejecting the underlying scientific theory and technique; (4) the potential rate of error

of the technique; (5) the availability of other experts to test and evaluate the technique; (6) the clarity

with which the underlying scientific theory and technique can be explained to the court; and (7) the

experience and skill of the person who applied the technique on the occasion in question. Ibid.

In point of error eight, appellant asserts the trial court erred in admitting fingerprint-

comparison evidence. Connie Castle, a crime-scene investigator with the Tyler Police Department,

testified that she compared the fingerprints recovered from the crime scene to the fingerprints

obtained from appellant and determined he was the person who left the fingerprints on the white

Corsica. Defense counsel objected, and the trial court held a hearing to determine the reliability of

the evidence. Castle testified that fingerprint comparison was a legitimate field of expertise, that the

method she followed here was the accepted method within the field of expertise, and that the same

method was used by the Federal Bureau of Investigation (FBI), the Department of Public Safety

(DPS), and other law enforcement agencies. Castle also testified that she had sixteen years of

experience in fingerprint comparison, that she had received training on the subject at numerous

schools, and that she had routinely kept up with new techniques and developments within the field.

She further testified that she had given expert testimony on fingerprint comparison numerous times

in both state and federal court and that her findings in this case were reviewed and confirmed by at

least three other people trained in the field, including a Tyler Police Department investigator and an

FBI agent.

Walter Henson, a sixteen-year veteran of the DPS crime laboratory and a latent-fingerprint

examiner, testified about the general reliability of fingerprint-comparison evidence. Henson testified

that he is an instructor in fingerprint comparison, that he has compared hundreds of thousands of

fingerprints in his career, that he has given expert testimony on fingerprint comparison in both state

and federal courts, that he has received specialized training in fingerprint comparison from the FBI

and the DPS, and that he had kept abreast of new technologies within the field. He testified further

that peer review was a critical part of fingerprint comparison, and that there was "no known error

rate attached to the comparison of latent prints." He further testified that courts have relied on

fingerprint evidence for over one hundred years and that it is generally accepted in the scientific

community that no two people have the same fingerprints.

Based on Castle's and Henson's testimony, the trial court found that the fingerprint evidence

was relevant and reliable, that Castle was qualified to testify as an expert, that the underlying

scientific theory and techniques were valid and were properly applied, that there was no rate of error,

that the underlying scientific theory and technique were accepted as valid by the relevant scientific

community, that other experts were available to test and evaluate the technique, and that the

underlying scientific theory and techniques were explained with sufficient clarity. (4) The trial court

acknowledged the existence of articles calling for further testing of the theory and technique, but

stated that "there's nothing that says this is not valid."

Despite its long history of general acceptance and admissibility in our trial courts, some

tribunals have addressed concerns about, and challenges to, expert fingerprint comparison testimony.

See U.S. v. Mitchell , 365 F.3d 215, 250-51 (3rd Cir. 2004); U.S. v. Crisp , 324 F.3d 261, 266-68 (4th

Cir. 2003) ; U.S. v. Llera Plaza , 188 F. Supp.2d 549 (E.D. Pa. 2002) (op. on reh'g) (exhaustive

account of fingerprint use as crime-detection technique, its origins and developmental history, and

the present-day training and testing of forensic experts). In Llera Plaza , on rehearing, the district

court reversed its own decision excluding expert testimony that a latent fingerprint was that of a

particular person. Based on our review of the record and our own well-established history, we

conclude that fingerprint-comparison testimony is admissible under Texas Rule of Evidence 702

because it is reliable and it assists the trier of fact in its task of determining whether a latent

fingerprint is that of a particular person. Were we to be persuaded by the initial concerns of Judge

Pollack in Ilera Plaza , it would not affect our analysis, because the testimony in this case satisfied

the factors set forth in Kelly . Therefore, the trial court did not abuse its discretion in admitting the

fingerprint-comparison evidence. Point of error eight is overruled.

In point of error nine, appellant complains that the trial court erred in admitting the expert

testimony of Dr. Sue Stone and Dr. Tynus McNeel that appellant posed a risk of future

dangerousness because the State did not lay a proper foundation, as required by Kelly v. State and

Nenno v. State . (5)

"When addressing fields of study aside from the hard sciences, such as the social sciences

or fields that are based primarily upon experience and training as opposed to the scientific method,

Kelly's requirement of reliability applies but with less rigor than to the hard sciences." Nenno v.

State, 970 S.W.2d 549, 561 (Tex. Crim. App. 1998). When "soft" sciences are at issue, the trial

court should inquire: (1) whether the field of expertise is a legitimate one, (2) whether the subject

matter of the expert's testimony is within the scope of that field, and (3) whether the expert's

testimony properly relies on or utilizes the principles involved in the field. Ibid .

Dr. Stone, a psychologist with the Texas Department of Criminal Justice (TDCJ), and Dr.

McNeel, a privately employed psychiatrist, testified there was a probability appellant would commit

criminal acts of violence in the future that would constitute a continuing threat to society. Prior to

their testimony, the trial court held a hearing to determine the reliability of their testimony. Stone

testified that she was a licensed psychologist with a doctorate in clinical psychology, that she had

received post-doctorate specialized training in violence risk assessment, and that she gained

experience in risk assessment while completing her post-doctoral training with TDCJ and while

working for the Texas Youth Commission. Stone had given presentations on violence risk

assessment to other mental-health professionals and had previously testified as an expert witness in

a capital murder case.

Stone's opinion of appellant's future dangerousness was based on the offense reports, the

autopsy report, crime-scene photographs, a videotape and transcript of appellant's interview with

investigators, witness statements, transcripts of witness interviews, arrest records and prior-offense

records, TDCJ institutional and parole records, Smith County jail and probation records, and news

footage of the offense, crime scene, and bond hearing. When reviewing the material and making her

assessment, she used a combination of theory and technique that had been subjected to peer review

and publication and was generally accepted within the scientific community. She drew upon her

training, education, and experience in clinical and forensic psychology, and thoroughly reviewed

literature on violence risk assessment and psychopathy. She also used the "guideline of the DSM4,"

which is published by the American Psychiatric Association and widely used as a standard in the

field.

McNeel testified that he was board-certified in general psychiatry, forensic psychiatry, and

addiction psychiatry, and that he had testified on future dangerousness in a number of other cases.

He testified that risk assessment of future dangerousness is a legitimate field of expertise. McNeel

reviewed reports, pictures, jail records, prison records, parole records, and other discovery items in

support of his testimony on future dangerousness, and he relied upon his specialized knowledge and

his review of current scientific literature in the field. He testified that the theory and technique he

used were derived from published research studies that had been subjected to peer review and are

generally accepted within the relevant scientific community.

The trial court found that the State met its burden of demonstrating the reliability of the

opinion testimony and admitted the evidence in question. Based on the record before us, we

conclude that the State met the requirements of Kelly and Nenno . Thus, the trial court did not abuse

its discretion in admitting the expert testimony on future dangerousness. See Griffith v. State , 983

S.W.2d 282, 288 (Tex. Crim. App. 1998) (potential of future dangerousness is a question of fact

which the jury must answer and testimony from mental health experts is relevant to future

dangerousness special issue). Point of error nine is overruled.

Improper Question

In point of error eighteen, appellant argues that the State improperly questioned Dr. Sue

Stone about the specifics of another capital case in which she had testified about future

dangerousness. As noted, Stone concluded that there was a probability that appellant would commit

criminal acts of violence that would constitute a continuing threat to society. On cross-examination,

defense counsel asked Stone whether she had previously testified about future dangerousness in a

capital case. In response, she said she had testified as a witness for the State, that she had concluded

there was a probability that the defendant in that case would be a continuing threat to society, and

that she had never testified for the defense in a capital case.

On re-direct examination, the prosecutor asked Stone the name of the capital case in which

she had previously testified for the State. Stone replied, "The Newton Anderson case." The

prosecutor then asked Stone to tell the jury a little bit about the facts of that case. Appellant

immediately objected under Texas Rule of Evidence 403, complaining that to compare one capital

murder case with another is highly prejudicial. The prosecutor responded that he was not attempting

to compare the cases, but rather he wanted to show that Stone was "not just a rubber stamp for the

State." The trial court sustained the objection, stating that the prosecutor could re-phrase the

question in such as way as to not go into the details of the other case.

The prosecutor then asked whether Dr. Stone's evaluation of appellant's case was related in

any way to her evaluation in the Newton Anderson case. Stone replied that it did not and confirmed

that her opinion in appellant's case was based only upon the information of his case. When the

prosecutor asked whether the jury assessed the death penalty in the Newton Anderson case, defense

counsel immediately objected and requested an instruction to disregard. The trial court sustained

the objection, sent the jury out of the courtroom, and denied defense counsel's motion for a mistrial.

When the jury returned, the trial court explained that the State's question was "completely irrelevant

and improper and impermissible." The trial court instructed the jury in pertinent part as follows:

So I'm instructing you to completely disregard the last question asked by

State's counsel. If that question in any way invited you to make a decision on an

improper basis, I'm telling you, don't do it. I'm telling you that you are to make your

decisions in this case based upon the evidence that's properly before you in the case.

You are to disregard that question. You're not to consider it for any purpose

whatsoever. You're to make your decisions on the evidence that's properly before

you in this case, individualized decision-making based upon proper evidence in this

cause.

That's what you've taken an oath to do, and with confidence that you're going

to do that, the Court denies the motion for a mistrial made by the Defense.

The asking of an improper question will seldom call for a mistrial, because, in most cases,

any harm can be cured by an instruction to disregard. Ladd, 3 S.W.3d at 567 . A mistrial is required

only when the improper question is clearly prejudicial to the defendant and is of such character as

to suggest the impossibility of withdrawing the impression produced on the minds of the jurors.

Ibid . We review the trial court's denial of a mistrial under an abuse of discretion standard.

The trial court did not abuse its discretion in denying appellant's motion for a mistrial,

because the question at issue went unanswered and the trial court explained that the question was

improper and that it should be disregarded. Moreover, the question was not of such character as to

suggest the impossibility of withdrawing the impression produced on the jurors' minds. Point of

error eighteen is overruled.

Punishment Claims

In points of error three, four, and five, appellant argues that the Texas death penalty statute

is unconstitutional because Apprendi v. New Jersey, 530 U.S. 466 (2000), and Ring v. Arizona, 536

U.S. 584 (2002), require that the special issues be alleged in the indictment. He further asserts that

the indictment was fundamentally defective and the trial court erred in failing to quash it.

In Rayford v. State, 125 S.W.3d 521, 533 (Tex. Crim. App. 2003), we held that Apprendi

does not require the State to allege the special issues in the indictment. Nor can we find such a

requirement in Ring . Thus, we hold that Apprendi and Ring have no applicability to Article 37.071

in its current form. See Rayford, 125 S.W.3d at 534 . Points of error three, four, and five are

overruled.

In point of error six, appellant again cites Apprendi and Ring and argues that the Texas

capital-sentencing scheme is unconstitutional because it fails to assign a burden of proof on the

mitigation special issue. We have previously rejected this argument. Rayford, 125 S.W.3d at 533-34 ; Resendiz v. State, 112 S.W.3d 541, 549-50 (Tex. Crim. App. 2003), cert. denied, 124 S. Ct. 2098

(2004). Point of error six is overruled.

In point of error seven, appellant urges this Court to conduct a sufficiency review of the

mitigation special issue and asserts that "the failure to do so violates [his] constitutional and statutory

rights and renders the statute unconstitutional." Again, we do not review the sufficiency of the

evidence to support a jury's negative answer to the mitigation special issue. McGinn, 961 S.W.2d

at 166. We have rejected the claim that this deprives a defendant of "meaningful appellate review."

Green v. State, 934 S.W.2d 92, 106-07 (Tex. Crim. App. 1996); McFarland v. State, 928 S.W.2d

482, 498-99 (Tex. Crim. App. 1996). We have also rejected the claim that the mitigation special

issue violates the Eighth Amendment on the ground that meaningful appellate review of the jury's

determination is impossible. Prystash v. State , 3 S.W.3d 522, 535-36 (Tex. Crim. App. 1999). Point

of error seven is overruled.

In point of error eleven, appellant contends that the "10-12 rule" violates the Eighth

Amendment principles discussed in Mills v. Maryland, 486 U.S. 367 (1988), and McKoy v. North

Carolina , 494 U.S. 433 (1990). He further argues that the trial court violated his constitutional rights

by instructing the jury in this manner. We have previously decided this issue adversely to appellant.

Williams v. State, 937 S.W.2d 479, 490 (Tex. Crim. App. 1996); Lawton v. State, 913 S.W.2d 542,

558-59 (Tex. Crim. App. 1995). Point of error eleven is overruled.

In point of error twelve, appellant contends that Article 37.071 violates the Eighth and

Fourteenth Amendments because it fails to require that jurors be informed that a single holdout juror

on any special issue would result in an automatic life sentence. We have previously decided this

issue adversely to appellant. Shannon v. State, 942 S.W.2d 591, 600-01 (Tex. Crim. App. 1996);

Lawton, 913 S.W.2d at 559 . Point of error twelve is overruled.

In points of error thirteen and fourteen, appellant challenges the trial court's rulings on his

"Motion to Preclude the Death Penalty as a Sentencing Option." Appellant alleges that the trial court

erred "in quashing [his] subpoenas relating to [his] motion" and "refusing to allow [him] to make

an offer of proof by question and answer when the trial court quashed his subpoenas." Appellant

further requests an abatement of the appeal to permit counsel to develop the appellate record. See

Spence v. State, 758 S.W.2d 597, 599-600 (Tex. Crim. App. 1988).

Appellant alleged in his pretrial motion that the Texas death penalty statute was

unconstitutional because it failed to provide a consistent statewide method for determining in which

cases the death penalty would be sought. Appellant subpoenaed district attorneys and county judges

from several different counties to testify in connection with the motion. The trial court granted the

State's motion to quash the subpoenas. Seven of the subpoenaed witnesses appeared at the hearing

on appellant's motion, and appellant requested to set out their testimony in a bill of exception. The

trial court refused to allow the testimony for the purposes of a bill of exception, because the

witnesses had no personal knowledge about appellant's case. However, the trial court offered

appellant additional time to propound "depositions on written questions" to persons in Smith County

with relevant information as to whether appellant was "improperly pursued" in the instant case.

The trial court did not err in quashing the subpoenas. The State has discretion to seek the

death penalty, and this discretion is not unconstitutional. Hankins v. State, 132 S.W.3d 380, 387

(Tex. Crim. App. 2004); Ladd, 3 S.W.3d at 574 . Appellant was not entitled to subpoena district

attorneys and county judges and question them regarding the exercise of prosecutorial discretion

which we have held to be constitutional. See Hankins, 132 S.W.3d at 388 . Thus, an abatement

would serve no purpose in the instant case. Points of error thirteen and fourteen are overruled.

We affirm the judgment of the trial court as it relates to appellant's conviction, we reverse

the judgment of the trial court as it relates to appellant's punishment, and we remand the case to the

trial court for a new punishment hearing under Texas Code of Criminal Procedure article 44.29(c).

DELIVERED JUNE 29, 2005

PUBLISH

1. Appellant also argues that the evidence of future dangerousness is factually insufficient.

However, we do not conduct factual sufficiency reviews of the future dangerousness special

issue. McGinn v. State , 961 S.W.2d 161, 169 (Tex. Crim. App. 1998).

2. When conducting a legal sufficiency review, we consider all the record evidence,

including evidence that was inadmissible. Dewberry v. State , 4 S.W.3d 735, 740 (Tex. Crim.

App. 1999).

3. In Weatherred v. State , 15 S.W.3d 540 , 542 fn. 5 (Tex.Crim.App. 2000), we discussed

the difference between the "hard" sciences and the "soft" sciences.

4. Once a scientific principle is generally accepted in the pertinent professional

community and has been accepted in a sufficient number of trial courts through adversarial Kelly

hearings, subsequent courts may take judicial notice of the scientific validity (or invalidity) of

that scientific theory based upon the process, materials, and evidence produced in those prior

hearings. Hernandez v. State, 116 S.W.3d 26, 29 (Tex. Crim. App. 2003); Weatherred , 15

S.W.3d at 542 n.4. The trial court here took judicial notice "of the opinions of the Texas Court

of Criminal Appeals and the Twelfth Court of Appeals relative to the admissibility of fingerprint

evidence," citing Moore v. State , 109 S.W.3d 537 (Tex. App.-Tyler 2001, pet. ref'd), and

Emerson v. State, 880 S.W.2d 759 (Tex. Crim. App. 1994).

5. State's witness Dr. Edward Brown Gripon also testified regarding appellant's risk of

future dangerousness, but appellant does not challenge the admission of Gripon's testimony.