Thuesen, John

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. AP-76,375

JOHN THUESEN, Appellant

v.

THE STATE OF TEXAS

ON DIRECT APPEAL FROM CAUSE NO. 09-02136-CRF-272

IN THE 272 ND DISTRICT COURT

BRAZOS COUNTY

P RICE, J., delivered the opinion of a unanimous Court.

OPINION

Appellant was convicted in May 2010 of capital murder committed in March 2009.1

Based on the jury’s answers to the special issues set forth in Texas Code of Criminal

1

TEX . PENAL CODE ANN . § 19.03(a)(7).

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Procedure Article 37.071, sections 2(b) and 2(e), the trial judge sentenced appellant to death.2

Direct appeal to this Court is automatic.3 After reviewing appellant’s forty-five points of

error, we find them to be without merit. Consequently, we affirm the trial court’s judgment

and sentence of death.

STATEMENT OF FACTS

Appellant was convicted of murdering his girlfriend, Rachel Joiner, and her brother,

Travis Joiner, during the same criminal transaction on March 6, 2009. The evidence showed

that appellant began dating Rachel, a fellow college student, in October 2008. Before they

met, appellant had been in the Marine Corps for six years, and he had served in Iraq for

several months in 2004 and 2005.

Appellant introduced evidence of his military experiences and his mental state at both

phases of the trial. He presented such evidence at the guilt phase to show that he did not

have the requisite mens rea to intentionally or knowingly kill the victims, and at the

punishment phase to rebut the State’s evidence of future dangerousness and provide

mitigating evidence.

At the guilt phase, Officer Micah Lunt, a “mental health peace officer” who had been

trained to deal with people in mental health crisis, testified that on August 29, 2008, he went

to appellant’s house in response to a call from the Veterans Administration (“VA”) Suicide

2

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

Code of Criminal Procedure.

3

Art. 37.071, § 2(h).

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Hotline. As Lunt reached appellant’s house, he maintained contact with a VA counselor who

was talking to appellant by telephone. Lunt waited behind a large tree in front of appellant’s

house while the counselor instructed appellant to walk outside unarmed, and after watching

appellant comply with these instructions, Lunt approached appellant. After talking to and

observing appellant, Lunt determined that appellant was in crisis. Appellant voluntarily

accompanied Lunt to the College Station Medical Center. Because of appellant’s depressed

state, it was hard to get him to answer questions. Appellant had a very flat, deflated affect.

Lunt helped arrange for appellant’s transport from the Medical Center to the Michael

DeBakey Hospital (the “VA hospital”) in Houston. Lunt acknowledged that appellant was

not afraid of law-enforcement officials or weapons and that he had been able to call for help

in a crisis.

Dr. Ismael Carlo, a psychiatrist working with the VA hospital, testified about his

diagnosis and treatment of appellant from appellant’s arrival on Friday evening, August 29,

2008, until his discharge the following Tuesday morning. Carlo noted post-traumatic stress

disorder (“PTSD”) symptoms and diagnosed appellant with major depressive disorder, a

chronic condition requiring lifelong treatment. Appellant was discharged from the VA

hospital with the understanding that he would take his gun to his parents’ house for

safekeeping, continue to take his prescribed anti-depressant medication, and participate in

outpatient treatment in College Station.

Teresa Cannon, appellant’s VA counselor in College Station, testified that, after

appellant began dating Rachel, he seemed less depressed, although his PTSD symptoms

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remained the same. At appellant’s request, they had reduced the frequency of their

counseling sessions, and against Cannon’s advice, appellant had stopped taking his anti-

depressant medications. When Cannon last met with appellant in March 2009, he seemed

tired and irritable. He complained about a number of stressors, including worries about his

relationship with Rachel, but Cannon was not concerned about his stability or safety. On

cross-examination, Cannon acknowledged that most veterans she treated with PTSD

exhibited hypervigilance, intrusive thoughts, anger, rage, and anxiety, but appellant was the

only one of her patients who had murdered someone.

Marine Corps Sergeant Jerry Abbot testified that appellant was a machine gunner in

his platoon in Iraq. Abbot chose appellant to ride in his vehicle when they patrolled because

he trusted appellant and appellant was very good at his job. Abbot described their duties and

activities while in Iraq and testified that they were under fire several times. On one occasion

when they were approaching a supposedly safe location, two rocket-propelled grenades

exploded about ten to fifteen feet from their vehicle. Often the people who shot at them

would hide in a crowd, so they could not respond. Sometimes they were called upon to raid

houses at night.

Marine Corps Sergeant Romero Garcia supervised appellant’s platoon in Iraq in 2004.

He testified that appellant was a machine gunner and that their platoon’s mission was to drive

through populated areas and draw fire so that they could locate and defeat armed adversaries.

They also set up vehicle checkpoints where they sometimes had to “take out” vehicles that

did not stop to be searched. Appellant was one of the people who would be ordered to take

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them out. Sometimes women and children would be in those vehicles. Garcia acknowledged

that, from their experience in Iraq, appellant had personal knowledge of what a bullet does

to a human being. Garcia, who suffered from PTSD upon returning to the United States,

believed that appellant also had PTSD. In the four months before the offense, Garcia

received two or three late-night calls from appellant in which he could tell that appellant was

“pretty drunk.” He did not know whether appellant ever sought treatment for PTSD or any

other details of how appellant coped with his problems.

David Ottmer, a friend of appellant’s family who was also a veteran, testified that,

when appellant returned from Iraq in 2005, he had a look in his eyes like he was

disconnected from reality. Ottmer recognized this look as one that he had seen in other

veterans and in himself.

Appellant’s mother, Patricia Thuesen,4 testified she did not notice any changes in

appellant when he first returned from Iraq in March 2005, but she began to notice a

difference in him about six or eight months after he got home. Sometimes when appellant

had been drinking, he would cry and tell her he “didn’t mean to do it, but . . . [he] had to save

[his] brothers.” They were not a family that talked easily about problems and feelings, and

she told appellant that he should talk to his Marine buddies. He kept his room perfectly

organized, and he noticed if anything was out of place. He startled so easily that he would

grab for her if she tapped him on the shoulder, and he would “take a swing” when she went

4

We shall refer to Patricia Thuesen by her first name to distinguish her from other

members of the Thuesen family.

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into his room to wake him up in the morning. She picked him up from the VA hospital in

September 2008, but she did not know the details of why he was there until she heard Dr.

Carlo’s testimony. Appellant seemed to improve after he left the VA hospital and was taking

the medications he had been prescribed. She did not know where appellant kept his gun, and

she had never talked with him about moving it for safekeeping.

She testified that appellant was never aggressive toward her, and as a boy he was

taught not to hit girls. She met Rachel, and she never saw them argue; they were affectionate

with each other. Appellant sounded fine when they talked by telephone in the week before

the offense. She was shocked when he called her on March 6 and told her that he shot

Rachel. When she saw him in jail on March 7, he was “drawn in” and disoriented; he did not

look like himself. Patricia testified that her son as she knew him could not have intentionally

or knowingly killed Rachel and Travis.

Patricia nevertheless acknowledged that a young woman had obtained a protective

order against appellant in 2007. A redacted version of the protective order was admitted as

State’s Exhibit 206. Patricia testified that she was not aware that the order prohibited

appellant from having a gun for two years.

An audio recording of the 9-1-1 call that appellant placed immediately after shooting

Rachel and Travis in their College Station residence was published to the jury. Appellant

was breathing hard and fast as he gave the dispatcher the address and told him that there were

two gunshot victims. When the dispatcher asked him what happened, appellant stated, “I got

mad at my girlfriend and I shot her.” He told the dispatcher that she had a “sucking chest

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wound.” She was “just breathing” and moaning, and she could not say anything. The

dispatcher placed a paramedic on the line to talk to appellant. Appellant stated that he did

not think that she was “going to make it.” Following the paramedic’s instructions, appellant

checked Rachel’s airway. He stated that Rachel was trying to say something but she could

not get it out. He could hear the air moving in and out of her chest. Appellant informed the

paramedic that her brother “surprised” him and appellant “shot him, too.” Again following

the paramedic’s instructions, he went to check on Travis. Appellant reported that he thought

Travis was dead because he was not breathing, was nonresponsive, and did not have a pulse.

The dispatcher then asked appellant to step outside, and appellant stated that he was

unloading his gun. Rachel could be heard moaning in the background. At that point, the

recording ended.

Officer Tom Jagielski arrested and Mirandized appellant after he walked out of the

victims’ garage. He waited with appellant in the victims’ front yard as emergency responders

transported the victims. Jagielski, a “mental health peace officer,” testified that appellant

was cooperative and seemed remorseful and concerned about the victims’ conditions.

Jagielski did not believe that appellant was in a mental health crisis or experiencing delusions

at that time.

In a recorded conversation between appellant and Jagielski that began while they were

waiting in the victims’ front yard, Jagielski verified that appellant had not been shot and that

appellant’s only weapon was in the garage. Although appellant initially did not want to talk

about what happened, he eventually asked if he could be the one to break the news to his own

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parents, and Jagielski responded that he would work that out. Appellant then asked if Travis

was going to make it, and Jagielski told him that Travis was still alive and there was always

a possibility. Jagielski asked appellant where he shot Travis, and appellant stated that he shot

him in the mid-section.

Jagielski introduced appellant to Detective Katy Reiter, saying that she would talk to

someone about letting appellant call his parents. Appellant told Reiter that he and Rachel

had been in bad shape for a couple of weeks because Rachel had said she needed space.

Reiter asked him if he had taken any medications or had anything to drink, and appellant

responded that he had been drinking on the previous night. He stated that he usually carried

his gun in his car and that he had been in the Marine Corps for six years. He described the

gun as a .45 caliber, 911 model. He stated that he and Rachel had been together for six

months, but the previous weekend she had wanted to “back off pretty hard.” Reiter then left

appellant and Jagielski.

Jagielski told appellant that Rachel would probably be all right. Appellant stated that

recently, Rachel had been angry with him “all the time.” Jagielski introduced appellant to

Detective Kirk Webb and told appellant that Webb wanted to talk to him at the police station.

Jagielski then transported appellant to the station. During transport, appellant asked Jagielski

how the victims were, and Jagielski said he did not know anything yet. He stated that he

thought “[Rachel] looked like she was in pretty good shape,” but appellant disagreed, noting

that she had gone pale.

The audio recording continued at the station, where Jagielski took appellant to a

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holding cell. He advised appellant that the victims would go into surgery and that he would

inform appellant as soon as he heard any news. Appellant expressed regret for what had

happened and concern about Rachel’s condition. He told Jagielski that he shot the victims

with hollow-point .45 caliber bullets, and he commented on the amount of blood at the scene.

Jagielski asked appellant whether he first shot Rachel from the back or the front, and

appellant stated that he shot her from the back. Appellant explained that Rachel’s brother

heard the first shot and went to get a gun, so appellant shot him, and then he shot Rachel

again. Jagielski thereafter introduced appellant to Detective Patrick Massey and ended his

recorded conversation with appellant.

In a videotaped interview with Detectives Massey and Webb, appellant explained that

he had served in the Marine Corps and had spent seven or eight months in Iraq. He said that

he used an M16 and a machine gun, and his platoon helped with weapons control on roads

and in cities in Iraq. Massey asked him if he saw “much action,” and appellant responded

that he saw “a little here and there.”

Appellant stated that he always wanted to attend college, but he “failed out” of high

school because of too much partying and so he could not go to college right away. After his

time in Iraq, he did well in school and was more focused. He moved to College Station to

attend college and become a mechanical engineer. He had worked for BMI Combat Systems

since August 2008.

Appellant said that he met Rachel, a fellow college student, in September 2008, and

they began dating in October. The first few months of their relationship were good. They

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argued occasionally but tried to avoid hurting each other. Appellant did not really have any

other friends in College Station; he just spent time with Rachel.

Webb asked appellant whether he had ever had thoughts of harming himself before

this incident. Appellant nodded. Massey asked him if he had ever acted on those thoughts.

Appellant answered that he “almost” harmed himself in August 2008 because he was “down

about a lot of things.” He went to the VA hospital for about four days for treatment for

alcohol abuse and depression and then to a VA outpatient clinic in College Station for

counseling. Recently, he had been seeing his VA counselor less frequently. He last saw her

on the Wednesday before the offense. They talked about appellant’s stressors, including

problems in his relationship with Rachel, balancing the responsibilities of school and work,

and needing more financial aid.

Massey asked appellant if Rachel wanted to break up with him. Appellant answered,

“I couldn’t tell.” He stated that some of his friends were telling him to give her space, while

others were telling him to move on because it was over. Rachel kept telling him she wanted

space, and she was ignoring his calls and texts “a lot.” He asked her if he could just see her

one night, but he did not see her or stay the night with her “the whole week” before the

offense. He saw her “maybe for an hour this whole week.”

Webb asked appellant what he and Rachel had argued about. Appellant stated that

the previous weekend was when Rachel said she needed space. Appellant wanted to keep

seeing her once or twice a week, but she said she could not do that because she had too much

going on. She had just started a new job. She did not want to schedule any time for him,

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saying that she did not know when she would feel like seeing him again.

In the past, when Rachel would go out with other friends, she would stay with

appellant at his house afterward. He did not understand why that had changed. Rachel said

she needed space because she was too busy and stressed, but appellant was also busy and

stressed. Appellant kept getting angrier and angrier. He did not understand why Rachel went

from seeing him every day to not even letting him stay with her one night. He just wanted

to ease the sudden separation.

Rachel “got really pissed at” him, telling him that she did not want to see him and that

he was “not respecting [her] space.” She told him that he was always bugging her. She let

him know that her ex-boyfriend was helping her with calculus and that appellant could not

help her because he tended to get too mad and frustrated with her. She told him that she felt

uncomfortable talking to him “about anything at all anymore.”

The night before the offense, appellant went to see Rachel for help with a calculus

problem, but she was out with her ex-boyfriend. Webb asked appellant if he knew in

advance that Rachel was going out that night. Appellant stated that he did not. He tried to

call her in the afternoon as he was leaving his job, but she did not answer her phone. When

he later went to her house, she was napping. Appellant suggested that he could come back

later, and she told him not to expect her to be in a good mood. Appellant then went home.

After appellant got home, he called his friend, Janet Walker, who told him that it

sounded like the relationship was over and that he needed to move on. Walker told him not

to go back to Rachel’s house or call Rachel any more. Massey asked appellant if he ever

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talked to anyone about shooting Rachel. Appellant stated that he probably said something

like that to Walker, but it was not anything he thought he would really do.

Around 9:30 p.m., appellant returned to Rachel’s house for help on a calculus

problem. She was not at home, so he called her. She told him that she was not going to wait

on him “like a slave” or go home just because he wanted her to and that she was going out

with her ex-boyfriend.

Appellant then went to the home of Johnny Matthys, who was Rachel’s ex-boyfriend.

He “hopped a fence” to talk to Rachel, who was standing on the front porch. When she saw

appellant, she told him that he needed to leave, and that he was lucky they did not call the

cops. She told him that if he crept up on her again he might find her “fucking the next guy,”

which he took to mean that if he did not stop acting that way she would break up with him.

He told her he was sorry and left. Later, Rachel texted him and said that he was “lucky [he]

didn’t get [his] ass shot.” Appellant texted back and said again that he was sorry and that he

would not do it again.

After that, appellant went home. He drank beer and called another friend, Gunnery

Sergeant Brian Keith, around 10:30 or 11:00 p.m. Keith told him to give Rachel the space

she wanted. Appellant, however, went to Rachel’s house at 2:00 a.m. “because that’s usually

when the clubs close.” He parked down the street and waited in his car for a short time. He

had a loaded 911 semiautomatic that he had purchased from Carter’s Country in Houston in

May 2006 or 2007. He knew the garage-door code and used it to enter Rachel’s house. He

admitted that he once entered her house without her knowledge on a previous occasion and

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found Matthys there.

Massey asked appellant if he had scenarios in mind before Rachel arrived home.

Appellant responded that he did not know what he wanted to do. Massey suggested that one

scenario was turning the gun on himself, another scenario was talking to Rachel, and a third

scenario was what actually happened. Appellant acknowledged these suggestions with a nod.

However, he later stated that he did not know why he was there or how it would go. He said,

“It just got out of hand.”

Upon further discussion, appellant said he thought he might catch Rachel and Matthys

together and “beat him up or scare the shit out of him.” While he was waiting at Rachel’s

house, they exchanged texts, and he falsely informed her that he had gone out with his

friends. He asked her if she would call him later, and she said that she would not. He said,

“I was confused. I didn’t want to hurt her. I didn’t want to do it, but I did.”

Appellant stated that his gun was on the carpet next to him while he was lying in

Rachel’s bed and waiting for her to come home. He drank a beer around 4:00 a.m. Travis

got home around 4:00 a.m, and from the upstairs window appellant saw him walking from

his car to the front door. It sounded like Travis went straight to bed.

Rachel did not get home until the afternoon around 12:45 or 12:50 p.m. Just before

Rachel walked into her bedroom, appellant heard her coming upstairs and moved into

another room so that she would not see him. As she entered her room, he walked in behind

her with his gun at his side. He lifted it up and told her it was loaded. Rachel said, “Really?

A fucking loaded handgun? You’re pointing a loaded gun at me? Why do you have a loaded

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gun at my house?” She wanted to go get her brother, but appellant stopped her and pushed

her down onto her couch. She wrestled with him, but he told her, “You need to answer me

some questions,” and “We need to talk.” Appellant held her down because she wanted to run

and he wanted to talk. Rachel tried to call Matthys, but appellant grabbed her cell phone and

hung it up. Appellant texted Matthys, “Don’t worry about it.” Matthys texted back: “About

what?” Appellant texted him, “NM,” a shorthand notation that Rachel sometimes used for

“never mind.”

Rachel told appellant that he was crazy, saying, “I didn’t think much about your ex-

girlfriend before . . . . I don’t think she’s crazy, I think you’re crazy.” He was getting angry

and kept asking her why it had “to be this way.” They argued for about ten minutes. At one

point, Rachel told him that all she wanted was space, she was not cheating on him, she did

not want to break up with him, and she had stayed at her ex-boyfriend’s house because she

did not want to drive home drunk.

Rachel told appellant that if he would leave, she would not call the police. Instead of

leaving, however, appellant turned his gun on himself. He told Rachel that he could not be

with her any more and there was probably no going back after what had happened. Massey

asked appellant why he turned the gun on himself. Appellant stated, “I just wanted to end

it because I was hurting and I didn’t want to hurt her.” Rachel asked appellant for the gun,

so he uncocked it and handed it to her. She told him that he needed to leave and that she

would give him the gun once he was outside. She walked appellant down the stairs, saying

that Matthys was probably waiting for her outside. Appellant stopped Rachel by the front

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door and grabbed for his gun, but she resisted. Appellant explained that he had been about

to leave before he grabbed the gun, but then he changed his mind, telling himself, “I can’t

leave right now, we just need to clear it up right now. Let’s clear this up and talk about it.”

They struggled over the gun until appellant got it from her. Rachel then tried to leave

through the front door, but appellant would not let her. He told her that he just wanted to be

with her, and he did not “want it to come to that,” but she pushed him and kneed him in the

crotch and ran through the house toward the garage, still trying to go outside.

The garage door had been closed, but Rachel ran to the interior doorway and pushed

the garage door button to open it. She was headed toward the opening garage door when

appellant reached the interior doorway and pushed the button to make the door to go back

down. Appellant stated that he closed the garage door “to try and stop her,” but Rachel did

not stop. She was facing away from appellant, trying to crawl under the closing garage door,

but then she stood up and he “popped her.” Appellant stated that he wanted to keep her from

leaving and he “didn’t want her to make a spectacle.”

After the first shot, Rachel was “really hurting,” and there was blood spatter

everywhere inside. She turned to go back inside and ran toward the kitchen. Appellant

followed her inside, and “that’s when her brother surprised [him].” Appellant feared that

Travis had a gun because Rachel had told appellant that her brother had a gun while she was

telling him to leave. Appellant said, “Everything just happened so fast and I just reacted.”

Travis ran out from his bedroom and met Rachel in the kitchen area. He was standing on the

other side of a separator between the kitchen and the hall. He looked at appellant, and

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appellant fired over the separator. Appellant shot Travis in his “center mass,” and when

Travis turned and moved toward the stairs, appellant shot him in the lower right hip. Massey

asked appellant if Travis had a gun, and appellant responded that he did not see a gun.

Appellant could not see Travis’s hands; he only saw his face.

Rachel ran past appellant while he was shooting Travis. After the second shot to

Travis, appellant immediately turned back to Rachel. He shot Rachel a second time, and

when she turned to go back into the garage, appellant shot her a third time. Rachel turned

around, looked at him, “went blank,” and fell over. “She couldn’t say anything for the

longest while it seemed,” and then she just started moaning.

Appellant explained that he sat on the garage floor and propped Rachel up between

his legs while he held her and tried to close the front chest wound and a wound on her back.

He felt a bullet in her sternum and heard a gurgling sound like a “sucking chest wound.” He

applied pressure to her chest using plastic, as he had been instructed in the military, and he

checked her airway as instructed by the 9-1-1 dispatcher. Travis was not moving when

appellant ran inside to check on him.

When Massey asked appellant what he was thinking after the first shot, he answered

that he thought somebody was going to bring out a gun and shoot him. He felt jealousy and

anger and “was mad . . . about things.” He felt like Rachel was going to leave him anyway.

Webb asked appellant whether he felt better after the first shot. Appellant responded, “Not

at all. I didn’t feel good, I didn’t want to do it . . . I don’t know why. I guess all those

feelings together made me want to do it.”

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When asked why he continued after the first shot, appellant could not answer or

explain. “I felt like I was in like a mode . . . like training or a game or something. Felt the

need to be quick . . . .” Massey observed that it seemed like appellant wanted containment,

to keep the situation from getting outside. Appellant agreed, but added, “After I had come

to, like, out of whatever it was, like, all that – stuff, uh, I’d seen what I’d done, when I looked

at her and she fell, uh, I felt horrible and I just, ah, wish I’d never done it.” Appellant stated

that he still felt horrible and that if he had just gone to talk to Rachel without the pistol,

maybe this would not have happened. He never intended to hurt her, and he did not know

why he did it. Massey asked if one reason was jealousy. Appellant responded, “Probably.”

When asked how he felt about Travis, appellant stated that he wished he had never

harmed him because Travis never did anything to him. “I just thought he was going to . . .

hurt me, too, and it was just a fast reaction . . . just got out of hand.” Appellant later stated

that he thought that he shot Travis because he was surprised and felt threatened that Travis

would call the police or bring a gun or stop him from talking to Rachel. Appellant stated that

he did not want Travis to get his gun, so he shot him low just to try to stop him. Massey

pointed out that by the time appellant shot him in the hip, Travis was moving toward the front

door, trying to leave. His room was behind him, so he was not going to get a gun. Appellant

responded, “I guess you’re right.”

When asked whether he knew what he did was wrong, appellant stated, “Yeah, it came

to me after,” while he was helping Rachel. He wished he could have taken it back.

Appellant stated that he regretted every bit of it and that he did not want Rachel to die.

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Massey asked appellant if he had a girlfriend before Rachel, and appellant stated that

his last “real” girlfriend, Leah Mathis,5 was “the one I got in trouble with before.” Appellant

explained that he went out with Leah for almost three years. When their relationship ended

around July or August 2007, Leah accused him of stalking because he went to her house one

night when he had too much to drink and started knocking on her window to ask her to

reconsider whether they could still have a relationship. He also accessed Leah’s MySpace

account and discovered that she had been going out with other people. Additionally, he kept

trying to call her and ask her why she would not talk to him, and he would go to places she

frequented to try to talk to her. Appellant explained that after he showed up at her house, he

was first given warnings for trespass and public intoxication, but the police left his car

parked outside Leah’s house when they arrested him. After they released him, he went back

to get his car. While he was there, he knocked on the door of the house to talk to Leah’s

father. Based on that incident, as well as appellant’s other activities, “they decided to

proceed with a protective order.”

Appellant acknowledged buying his gun around the same time that he and Leah broke

up. However, he explained that he and his brother bought their guns together to practice

shooting at their family farm. Appellant explained that he bought the gun before he and Leah

broke up, and he never took his gun to her house. When asked if he ever had any thoughts

that were similar to what he was thinking during this incident, appellant responded, “Yeah,

5

Because of the similarity between Johnny Matthys’s and Leah Mathis’s names, we will

refer to Leah Mathis as “Leah.”

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that I was tired of being walked on or lied to or something, or, you know. . . .” He further

stated, “I didn’t want the bullshit and I just couldn’t understand . . . why you can’t see me if

you don’t want to break up with me . . . . [B]ut you want to be with me, how come you can’t

see me but you go to see someone else.”

Massey testified at trial that he did not see signs of mental illness while talking to

appellant. Appellant was upset at the beginning of the interview, but he did not seem

generally depressed or nervous, and he displayed no signs of intoxication. Massey had no

concerns about appellant’s mental health and whether appellant understood what he had

done.

The police officer who secured and searched appellant’s residence after the offense

testified that he observed a collage on the wall of appellant’s living room that featured

photographs of appellant and Rachel together. There were also photographs of Rachel on

appellant’s night stand and computer desk. A desk calendar included a notation of “Rachel’s

birthday” on March 30, as well as other appointments. The residence appeared clean and

organized. The officer also recovered a box of .45 caliber bullets, an empty gun case, and

a sharpshooter badge. Entries from appellant’s journal reflected that as of January 13,

appellant idolized Rachel and was imagining their future together, but by March 4, his

relationship with Rachel was deteriorating, and he was hurt and confused.

A Mental Health Mental Retardation (“MHMR”) counselor testified that she met

appellant in the mental health cell at the jail on a Monday after receiving a report of suicide

concerns that had been made after hours on the preceding Friday. When the counselor saw

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appellant, he had symptoms consistent with depression, but he “no longer appeared to be in

imminent risk of harm to himself or others. . . . [H]e no longer appeared to be in a mental

health crisis.” He became tearful and made statements consistent with remorse. Because he

met the criteria for referral to an MHMR diagnostician, the counselor offered to have a

diagnostician come in, but appellant asked to speak to his lawyer first. He appeared rational.

The counselor acknowledged that a person can be mentally ill although not in a “mental

health crisis,” and mental illness can impair a person’s ability to intentionally and knowingly

cause a result.

A jailer testified that when appellant first arrived in jail, he was placed on suicide

watch in a “mental health cell,” and he was prescribed medications that he continued to take

at the time of trial.

The defense mental health expert, Dr. Roger Saunders, testified that he assessed

appellant’s mental status a few days after his arrest to address concerns that appellant was

a danger to himself. At that time, appellant was suffering from severe depression, but he had

begun taking medications and seemed stable. Appellant stated that he would not act out and

would work with his attorneys. Saunders met with appellant two more times to assess his

competency and sanity. He found that appellant was competent to stand trial and that he was

sane, but mentally ill.

Saunders met with appellant a fourth time to determine whether appellant intentionally

or knowingly caused the deaths of Rachel and Travis. Saunders administered personality and

depression inventories and reviewed numerous records concerning appellant’s background

THUESEN - 21

and the offense. He concluded that appellant intentionally and knowingly shot the victims

but did not intentionally or knowingly cause their deaths. Saunders testified that, before

appellant joined the military, he was sensitive and had some dependency and drinking issues.

His experience in military service changed him, as evidenced by his more pronounced

dependency issues and excessive drinking, the suicidal episode in August 2008, and his

anxiety disorder and PTSD. These problems led to appellant’s very poor functioning in

relationships.

Saunders opined that, at the time of the offense, appellant’s anxiety and intense

emotion prevented him from understanding that his conduct could cause death. Appellant’s

goals were to prevent Rachel from leaving without talking to him and to prevent Travis from

helping her leave. Saunders testified that it is well documented that PTSD, combined with

depression, increases the risk that a person will act out violently against a partner. Soldiers

and peace officers have a higher incidence of partner abuse than the general population

because their jobs generate high levels of stress and anger. Because they cannot act out in

the situations that actually cause the stress and anger, they are more likely to display

“displaced aggression” and act out in other situations. Appellant had some features of

dependency and depression before he joined the military, and these features were more

pronounced afterward. Appellant’s family members did not know how to talk about negative

feelings. Several close family members had mental illnesses, including depression and

alcoholism, making it more likely that appellant would also have problems with mood and

mental illness.

THUESEN - 22

Saunders testified that when appellant committed the offense, he was acting to save

his relationship with Rachel. Appellant understood what was happening when he pointed his

gun at Rachel and told her it was loaded. He was not psychotic, delusional, or having a

flashback, but his judgment and rational thinking were grossly impaired. Even though

appellant’s acts during the offense were intentional, the result was not what he wanted, and

he did not intend to kill Rachel or Travis. At the time of the offense, appellant was in a

“mental health crisis” and did not know what he was thinking, but when questioned after the

crisis had passed, he tried to cooperate with detectives and come up with an explanation for

what he had done. When appellant gave his statement to police, he was trying to make sense

of what had happened and why. Saunders, however, acknowledged that appellant’s conduct

during the offense was consistent with his conduct in his prior relationship with Leah, in

which he displayed a similar lack of boundaries and over-involvement.

Several witnesses testified for the State at punishment. Amanda Ward, appellant’s ex-

girlfriend from high school, testified that in 2001, appellant became jealous and angry when

she talked to another boy at a party. His behavior on that occasion frightened her, and as a

result, she told him that she did not want a boyfriend. However, he did not want to break up,

and he kept trying to contact her.

James Pawlowski testified that he knew appellant and Leah from the time they were

in high school. He testified that, in July 2007, appellant attempted to take Leah from

Pawlowski by force when she was sitting in his truck one evening. In a later incident,

appellant retaliated against Pawlowski and threatened to kill him.

THUESEN - 23

Sergeant Noel Shelton testified that on July 30, 2007, he responded to a call around

4:00 a.m. regarding someone trying to break into a house. When Shelton arrived, he walked

around the house carefully because he had been advised that the suspect was a former

Marine. He saw appellant lying under some bushes and ordered him to show his hands.

Appellant complied. When Shelton handcuffed appellant, he smelled a strong odor of

alcohol and observed that appellant was so intoxicated that he was unsteady on his feet.

Shelton arrested appellant for public intoxication, told him that he was prohibited from going

onto that property, and explained that he could be arrested if he set foot there again.

Appellant seemed to understand. He was visibly upset, began to cry, and signed the trespass

warning. However, appellant returned to the house the next day. These events led to the

issuance of stalking and trespass warrants against appellant.

Leah and her mother, Joanne Mathis, testified that appellant physically and verbally

abused Leah and would not leave her alone when Leah tried to end their relationship. Leah

and her family did not pursue criminal charges against appellant because they believed that

he needed mental health treatment.

Appellant’s case at the punishment phase included the testimony of many teachers,

friends, supervisors, family members, and coworkers, as well as jail staff and two pastors

who had ministered to appellant in jail. They testified about appellant’s family background,

childhood, admirable qualities, good works, and ability to function well in a highly structured

setting. Several Marines who served with appellant testified about their and appellant’s

horrible experiences in Iraq and the lasting negative effects of those experiences. Other

THUESEN - 24

witnesses testified about the changes they observed in appellant after he returned from Iraq,

including being extremely needy and depressed and exhibiting PTSD symptoms such as a

startle response, hypervigilance and paranoia in crowds, and nightmares.

SUFFICIENCY OF THE EVIDENCE

In point of error one, appellant asserts that the evidence is insufficient to support an

affirmative finding to the future dangerousness special issue.6 He asserts that there was no

evidence that he would pose any danger to society if he received a sentence of life in prison

without parole. He argues that the evidence showed that he did not have problems

interacting with women with whom he was not romantically involved, and he behaved well

in structured environments like school, work, the military, and jail.

When reviewing the future dangerousness special issue, we view the evidence in the

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

found beyond a reasonable doubt that there is a probability that appellant would commit

criminal acts of violence constituting a continuing threat to society.7 “Society” in this context

includes both the free world and prison society.8 The facts of the offense alone may be

sufficient to sustain the jury’s finding of future dangerousness.9

Viewed in the light most favorable to the verdict, the evidence in this case shows that

6

Appellant does not challenge the sufficiency of the evidence of his guilt.

7

Martinez v. State, 327 S.W.3d 727, 730 (Tex. Crim. App. 2010).

8

See, e.g., Druery v. State, 225 S.W.3d 491, 507 (Tex. Crim. App. 2007).

9

Martinez, 327 S.W.3d at 730.

THUESEN - 25

appellant shot Rachel because he was angry and jealous and believed that he had nothing to

lose because Rachel was going to leave him anyway. He shot Travis because he did not want

Travis to stop him from getting to Rachel. Carrying a pistol loaded with seven .45-caliber

hollow-point bullets and an extra magazine of bullets, he used the garage entry code to enter

the victims’ home at night while they were away.10 Appellant hid in Rachel’s room for hours

so that he could surprise her as she entered her own bedroom. When Travis came home,

appellant did not make Travis aware of his presence. Appellant texted Rachel, falsely stating

that he was staying at a friend’s house so that she would not suspect that he was lying in wait

for her.11 Appellant shot both Rachel and Travis with multiple fatal shots, and he fired some

of those shots while Rachel was facing away from him and after Travis had begun to turn

away from him.12 Appellant was working entirely alone, against the advice of numerous

friends and mentors who had encouraged him to give Rachel the space she wanted and to

find activities he could pursue with his other friends.

Appellant’s ex-girlfriend, Leah, and her mother testified that he was physically and

verbally abusive of Leah and that he would not leave her alone when she tried to end their

10

See, e.g., Broussard v. State, 910 S.W.2d 952, 956 (Tex. Crim. App. 1995)

(defendant’s conduct of secreting his wife’s key and entering her home at night was evidence of

his calculation and forethought in murdering her).

11

See, e.g., Dinkins v. State, 894 S.W.2d 330, 360-61 (Tex. Crim. App. 1995) (finding

evidence of pre-planning when appellant arranged meeting with victim using false name and hid

pistols in a sling he wore for his injured shoulder).

12

See id. at 359-60 (finding it significant that appellant fired additional fatal shot to

victim’s head after she had fallen from the first fatal shot to her abdomen; infliction of multiple

wounds at close range indicated a wanton and callous disregard for human life).

THUESEN - 26

relationship.13 Leah testified that appellant would choke her, beat her, and hurt her in other

ways; afterward, he would tell her that she was weak for crying about it. He sometimes

threatened men who talked to her. On at least two occasions, he tried to drag her away from

the company of other people. Appellant’s physically abusive conduct usually occurred while

he was under the influence of alcohol, but one of the worst episodes of abuse occurred when

he was sober and they were not dating.

When Leah finally tried to end all contact and told appellant that she wanted him to

stay away from her, appellant refused to leave her alone. One night, he sneaked into her

house to wait for her after her parents had gone to bed. He left when her mother discovered

him in the hallway and told him to go home. Another night, after Leah did not return his

repeated telephone calls, appellant appeared outside her house, tapping on her bedroom

window and telling her to let him in because they needed to talk. She was too frightened to

move, so appellant began tapping on her brother’s bedroom window and asking to be let in.

Her brother informed their parents, who called the police. The police discovered appellant

hiding in the bushes near her brother’s window. Appellant was arrested for public

intoxication and given a criminal-trespass warning, and after he showed up again the next

day, he was charged with criminal trespass. Leah obtained a protective order, but she

decided not to pursue any criminal charges against appellant because she and her family

13

See, e.g., Broussard, 910 S.W.2d at 956 (appellant’s prior assault conviction for hitting

murder victim in the face with his fist, and her mother’s testimony that she was divorcing him

because he beat her, were evidence supporting affirmative future dangerousness determination).

THUESEN - 27

believed that he needed mental health treatment.

James Pawlowski, who knew appellant and Leah from high school, testified that he

and Leah were visiting some friends one evening in late July 2007. He and Leah were

talking while sitting in his truck in front of their friends’ house. They saw appellant drive

up and look into Leah’s vehicle. When appellant saw that it was empty, he approached the

house. After learning that Leah was not inside, he walked to Pawlowski’s truck and tried to

open the door. Pawlowski called some friends to help him. Appellant then opened the

passenger-side door and grabbed Leah by the arm. Appellant tried to pull her out, but she

did not want to go. Pawlowski held Leah in the truck from the driver’s side and told

appellant that she did not want to go with him. Appellant finally released Leah after

Pawlowski’s friends arrived, and Pawlowski started to drive away. Appellant held on to his

truck for a short distance before jumping off.

A few months later, while Pawlowski was at a party, appellant grabbed his collar from

behind and threw him down onto his back, telling him that he was not supposed to be there.

Appellant told him that if he and Leah went anywhere near him, he would kill them or at

least kill Pawlowski.

An ex-girlfriend from high school, Amanda Ward, testified that in 2001, she and

appellant dated for about a month. After she talked to another boy at a party, appellant

became jealous and angry and confronted the other boy. Appellant then told Ward that they

were leaving, and she and her best friend got into appellant’s truck. It was raining hard on

the drive home, and appellant drove erratically and too fast. When they reached her friend’s

THUESEN - 28

house, appellant got out of the truck and started telling Ward that he “just wanted to talk.”

She told him that she did not want a boyfriend, but he kept trying to talk her into staying in

the relationship, saying that he loved her. He had never said anything like that before.

Ward’s friend was afraid of appellant and urged Ward to stay at her house and not go home

with him. Appellant finally left after the girls went inside the house. Once appellant was

gone, Ward stayed at her friend’s house for about ten minutes, and then she went home.

Later, while Ward was watching TV and talking on the telephone in her bedroom, she heard

tapping noises and a voice at her bedroom window. When she moved closer to her window,

she could hear appellant telling her that he wanted to talk to her. When she opened her

blinds, she saw him peering into her window. She cracked her window and told him that he

needed to leave. He tried to put something under the window to keep it open, but she pushed

the window closed. Eventually Ward heard appellant leave. It sounded to Ward as if

appellant’s truck was already down the road when he started the motor. His truck was “loud”

and she would have expected to hear it when he arrived if he had parked in front of her

house.

Appellant returned later, and this time she heard him pull up in front of her house.

She called a male friend to come over to help her. That friend confronted appellant outside,

and the two boys argued. Appellant told Ward’s friend that he just wanted to talk to her, and

her friend punched him. Appellant got back into his truck. Ward’s parents woke up and told

both boys to leave before they called the police. Appellant “peeled out” as he drove away.

After that, he left numerous messages on Ward’s phone, saying that he “just want[ed] to talk

THUESEN - 29

to” her and that he was sorry. She never called him back, and she avoided going places

where she thought he might be. Given this evidence, a rational juror could believe that

appellant’s conduct in his romantic relationships had grown progressively more violent and

dangerous over time, with appellant becoming increasingly aggressive in his efforts to

control, isolate, and harm his girlfriends when they made him unhappy.

The psychological evidence presented at the guilt phase indicated that, before the

offense, appellant suffered from depression, abused alcohol, had dependent personality traits,

and exhibited PTSD symptoms. At the time of the offense, he was not taking his prescribed

anti-depressant medications, and he was tapering off his counseling sessions because he did

not believe that he needed them. In his last session with Cannon on the Wednesday before

the offense, appellant seemed irritable and tired, and he complained of having problems in

his relationship with Rachel. When he discussed his relationship problems with his friends,

he indicated that he knew he needed to leave Rachel alone, but he did not do so. Instead, he

became more demanding, aggressive, and intrusive.

Appellant attempts to bring his case within the ambit of our holding in Berry v. State.14

But appellant’s attempt to analogize the evidence of his future dangerousness to the future-

dangerousness evidence presented in Berry fails. In Berry, we found the evidence

insufficient to establish future dangerousness and reformed Berry’s death sentence to life

14

233 S.W.3d 847 (Tex. Crim. App. 2007).

THUESEN - 30

imprisonment.15 Given the extremely circumscribed nature of Berry’s victim pool (a subset

of her own children), and the substantial affirmative evidence that she had never been violent

in response to any other stimulus in any other context, we held that the State did not meet its

burden of proving beyond a reasonable doubt that there was a probability that Berry, if

allowed to live, would commit criminal acts of violence in the future so as to constitute a

continuing threat, whether in or out of prison.16

By contrast, appellant does not assert, and our independent review of the record does

not reflect, that his victim pool would necessarily be as circumscribed as Berry’s.17 The State

presented evidence that appellant had been communicating with an old girlfriend while in

jail awaiting trial. The jail nurse who treated appellant acknowledged that inappropriate

relationships between inmates and jail staff occurred, although they were rare and would be

stopped upon discovery. In short, the evidence suggests that appellant’s potential victim pool

is not so limited as in Berry.

Moreover, in addition to appellant’s history of aggression and intrusiveness toward

the women who were the objects of his romantic attention, the evidence showed that

appellant had a history of acting aggressively and violently toward anyone he believed was

15

See id. at 862-64.

16

Id. at 863-64.

17

See, e.g., Estrada v. State, 313 S.W.3d 274, 282-283 (Tex. Crim. App. 2010) (in

determining future dangerousness, jury is asked to decide whether a defendant would be

dangerous whether in or out of prison, without regard length of time the defendant would

actually spend in prison if sentenced to life).

THUESEN - 31

interfering with his access to those women. He confronted a boy who talked to Ward at a

party in 2001; he threatened and attacked Leah’s friend in 2007; and finally, he shot Travis

three times when Travis stepped out of his bedroom. This evidence of appellant’s

willingness to attack anyone who stood in his way signifies a general disregard for human

life. As in Lucio v. State, and unlike in Berry, “the evidence in this case suggests a finding

that appellant is dangerous to a broader range of potential victims both inside and outside of

prison.” 18

Viewing the evidence in the light most favorable to the verdict, we conclude that a

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

that appellant would commit criminal acts of violence constituting a continuing threat to

society. Point of error one is overruled.

In point of error seven, appellant asserts that the evidence does not support a negative

answer to the mitigation special issue. He urges this Court to review all the evidence and

find that the jury’s negative answer to the mitigation special issue in this case offends

constitutional prohibitions against cruel and unusual punishment and that the death penalty

should not be imposed.

Appellant acknowledges that we have consistently held that we will not conduct a

sufficiency of the evidence analysis for mitigation, reasoning that no evidence is per se

18

351 S.W.3d 878, 903 (Tex. Crim. App. 2011).

THUESEN - 32

mitigating.19 Appellant argues, however, that the United States Supreme Court has

recognized that some evidence is, in effect, mitigating per se, such that the death penalty may

not be imposed regardless of the facts of the crime and any evidence that militates in favor

of the death penalty. In support, he points to Roper’s categorical bar against executing

juveniles and Atkins’ categorical bar against executing the mentally retarded.20 He urges that

these cases effectively extended the courts’ prior recognition of youth and low intelligence

as mitigating evidence, such that “if the mitigating evidence is substantial enough, it should

bar the imposition of the death penalty as a matter of law.” Appellant reasons that this

recognition that some evidence is mitigating per se is the “functional equivalent of a

sufficiency analysis,” and therefore this Court should evaluate the sufficiency of the

mitigating evidence. Appellant argues that the mitigating evidence in this case, particularly

evidence of his mental illness and military service, is substantial enough to be mitigating per

se.21

19

See, e.g., Escamilla v. State, 143 S.W.3d 814, 828-29 (Tex. Crim. App. 2004).

20

See Roper v. Simmons, 543 U.S. 551, 564-68 (2005); Atkins v. Virginia, 536 U.S. 304,

312-16 (2002).

21

Appellant relies on Bigby and Porter to support his argument that evidence of a

defendant’s military service and mental illness is mitigating per se. See Bigby v. Dretke, 402

F.3d 551, 565-67 (5th Cir. 2005); see also Porter v. McCollum, 558 U.S. 30 (2009). Appellant

reads these cases too broadly. Bigby stated only that the defendant’s evidence—that he could not

conform his conduct to the law as a result of his chronic and uncontrollable mental illness—had a

“double-edged sword” quality, such that a nullification instruction did not allow the jury to give

effect to the mitigating value of this evidence. 402 F.3d at 571-72. In addition, Porter concerned

the Sixth Amendment right to the effective assistance of counsel to investigate and present

potentially mitigating evidence of the defendant’s troubled history, character, and background;

(continued...)

THUESEN - 33

We disagree with appellant’s interpretation of Roper and Atkins. In both of these

cases, the United States Supreme Court surveyed trends in state legislative enactments and

practices that reflected a national consensus in favor of barring the execution of juveniles

under eighteen years of age and the mentally retarded.22 Contrary to appellant’s assertions,

these decisions did not merely extend prior mitigation jurisprudence to find that evidence is

mitigating per se if it is “substantial enough”; rather, they determined that juvenile and

mentally retarded defendants are categorically ineligible for the death penalty under the

Eighth Amendment. The Supreme Court left to the individual states the task of developing

appropriate ways to enforce the constitutional restriction on the execution of sentences.23

In contrast to Roper and Atkins, we discern no emerging national consensus in favor

of barring the execution of defendants convicted of capital murder who have served in the

military, or who have been diagnosed with mental illness, or both.24 At the punishment phase

of a death-penalty case, evidence of a defendant’s military service and mental illness is

relevant evidence that should be considered by the jury along with other relevant punishment-

phase evidence. The weighing of this type of evidence is a subjective determination

21

(...continued)

Porter did not identify any evidence as mitigating per se. 558 U.S. at 40-41.

22

See Roper, 543 U.S. at 564-68; Atkins, 536 U.S. at 312-16.

23

See Atkins, 536 U.S. at 317.

24

See, e.g., Mays v. State, 318 S.W.3d 368, 379-80 (Tex. Crim. App. 2010).

THUESEN - 34

undertaken by each individual juror, and this Court will not review it for sufficiency.25

Here, the jury was presented with evidence of appellant’s admirable performance

during his military service, his fellow soldiers’ and superior officers’ high regard for him, the

awards and promotions he received, his harrowing experiences during his service, the ways

in which these experiences affected him, and the problems he had in adjusting to civilian life

after he returned from Iraq. The jurors weighed this evidence along with other relevant

evidence and made a normative judgment about appellant’s moral blameworthiness. This

Court will not second-guess the jury’s determination. Point of error seven is overruled.

GUILT PHASE

In point of error two, appellant asserts that the trial court erred by allowing the State

to introduce, at the guilt phase, prejudicial background, victim-character, and victim-impact

evidence over appellant’s Texas Rule of Evidence 403 objection.26 Appellant complains of

twenty-seven items of information that came in as background evidence during the testimony

of Wayne Joiner,27 the victims’ father; Douglas Perry, Travis’s college friend; and Johnny

Matthys, Rachel’s ex-boyfriend.28

25

Broussard, 910 S.W.2d at 956.

26

Unless otherwise indicated all references to Rules refer to the Texas Rules of

Evidence.

27

Because the record includes several members of the Joiner family, we will refer to

members of the Joiner family by their first names.

28

Appellant describes those items of information as:

(1) The victims were siblings and they had one brother, Evan.

(continued...)

THUESEN - 35

Before Wayne testified as the State’s first witness, the parties and the court conferred

outside the jury’s presence about the admissibility of victim-background evidence. Defense

28

(...continued)

(2) Travis would have been twenty-five on May 21.

(3) Rachel would have been twenty-three.

(4) Evan is sixteen.

(5) The siblings were photographed together on Travis’s senior ring day.

(6) The victims lived in a house owned by their parents, which was bought for

the victims to use while attending school.

(7) Both victims had vehicles while in school.

(8) Travis lived in the house first with three other boys. Each had his own

room.

(9) Travis always wanted to work in the aerospace industry. He chose to

attend Texas A&M over MIT.

(10) Rachel initially attended TCU. She had a partial track scholarship to

attend TCU. She loved track.

(11) The “track thing” did not work out, so Rachel transferred to Texas A&M.

(12) After moving to College Station, Rachel lived in an apartment, but after

Travis’s housemates graduated, she moved in with her brother.

(13) Rachel’s parents were comforted that she was living with her brother.

(14) Travis wanted to be an aerospace engineer.

(15) Rachel was not sure what she wanted to do with her life.

(16) Rachel and Travis’s parents lived in Eldorado, Texas.

(17) Sometimes Rachel would bring a boyfriend to her parents’ home. She

brought appellant to their home on one occasion, and he spent a few days

there.

(18) The family and appellant did some target practice together.

(19) Rachel was a tidy person, but Travis was not.

(20) Travis had a friend named Douglas Perry. They met as residents of the

freshman honor dormitory.

(21) As sophomores, Travis and Perry became roommates.

(22) After Travis moved into the house, Perry would often visit to watch

television and play video games with Travis.

(23) Travis was to graduate in December 2009.

(24) Travis was a comic book fan.

(25) Travis had a telescope and had always had one while Perry knew him.

(26) Travis liked LEGO and liked to build things with them.

(27) Rachel met her ex-boyfriend, Matthys, at Hurricane Harry’s. Matthys saw

her sitting alone. He approached and spoke with her, and then they danced

the two-step.

THUESEN - 36

counsel objected that victim-background information was not relevant at that point in the

proceedings, and that if the court found it to be relevant, then it was more prejudicial than

probative under Rule 403. The prosecutor asserted that he intended to call the victims’ father

to provide background evidence, “just to give a face to the victim[s].” The judge ruled that

he would allow this evidence, but he admonished the prosecutor to “keep it to a minimum.”

The judge then granted appellant’s running objection to this evidence.

Wayne then testified. He described his occupation and family life, stating that he had

been married for thirty-three years and had three children, the youngest of whom was sixteen.

He lived with his family in Eldorado, Texas. A photograph of Wayne with the victims was

offered and admitted as State’s Exhibit 1, with defense counsel expressly stating “no

objection.” Wayne explained that the photograph was taken the day that Travis got his high

school senior ring. He then explained that he and his wife bought a house for Travis in April

2007 so that Travis would have a place to live while he finished college, and so Rachel

would also have a place to stay if she decided to go to school in College Station.

Photographs of the house and the victims’ vehicles were then offered and admitted as State’s

Exhibits 2 through 4, with defense counsel expressly stating “no objection.” Wayne

described the vehicles as the cars that he and his wife had given to the victims when they

were seniors in high school. Diagrams of the house floor plans were offered and admitted

as State’s Exhibits 5 and 6, with defense counsel expressly stating “no objection.” Wayne

explained that Rachel lived upstairs, Travis lived downstairs, and the two shared the kitchen.

Wayne also testified that Travis had always wanted to study aerospace engineering,

THUESEN - 37

and he considered attending MIT before deciding that he wanted to stay in Texas. He related

that Rachel started college at TCU on a track scholarship, but track “didn’t work out for her,”

so she moved to College Station. Rachel initially had her own apartment, but she moved into

the house after Travis’s roommates graduated. Wayne testified that he and his wife were

glad that Rachel and Travis were in the same house. They did not know what Rachel’s major

would be, although she “had a lot of ideas of what she wanted to do.”

Wayne described how he met appellant. He explained that Rachel and appellant were

dating but not engaged, and appellant came to visit them between Christmas of 2008 and

New Year’s Day of 2009. Appellant stayed two nights in Travis’s boyhood bedroom.

Photographs of the family home in Eldorado were offered and admitted as State’s Exhibits

8 and 9, with defense counsel expressly stating “no objection.” State’s Exhibit 7, a

photograph of appellant’s car at the family home, was also admitted with “no objection.” It

was not unusual for Rachel to bring boys home from college, and nothing stood out about

appellant’s visit. While appellant was there, he participated with the family in day-to-day

activities such as eating dinner, watching movies, and going to church. In addition, appellant

and the family practiced target shooting together at a rock quarry on the property.

Photographs of the rock quarry were offered and admitted as State’s Exhibits 10 and 11, with

“no objection.” Wayne observed that appellant appeared to be comfortable with firearms.

He was a good shot, and he helped Rachel with her shooting. Appellant did not seem

nervous or bothered by the noise. Wayne did not know much about appellant except that he

was a former Marine. Appellant’s visit ended before the victims returned to College Station.

THUESEN - 38

Rachel returned to College Station a couple of days before Travis so that she could

clean and decorate the house before classes started. She was a tidy person, while Travis was

not. Wayne last heard from Travis a week before the offense. He last heard from Rachel a

couple of days before the offense. After the sheriff’s office personnel in Eldorado contacted

him by telephone, he went to the station, where they told him that the victims had been shot

and killed.

After Wayne testified, two of the victims’ neighbors testified about their observations

on the day of the offense. Appellant’s friend Brian Keith testified about his telephone

conversation with appellant on the night before the offense, and then Perry testified. The

defense did not object in advance to Perry’s testimony. Perry testified that he first met Travis

in August 2004, when they were in the freshman honors dormitory. He explained that he was

majoring in computer science and that Travis was majoring in aerospace engineering. The

prosecutor asked him how long it took them to become friends. Defense counsel objected

under “Rule 403, relevancy, [and] Rule 404.” The prosecutor responded that this information

was not prejudicial and that it explained why Travis and Perry were out together on the night

before the offense. The court overruled the objection.

Perry then testified that he and Travis got to know each other when they were

sophomores. He described the victims’ family as consisting of Wayne, Shirley, Travis,

Rachel, and a younger brother, Evan. Perry and Travis shared an apartment in the summer

of 2007. After Travis moved into the house, Perry visited him there quite often. He also saw

Rachel there, and he met appellant. Appellant was frequently there at the same time as Perry.

THUESEN - 39

Perry described appellant’s car, and he explained how the victims and their friends, including

appellant, would usually park their cars in the driveway and in front of the house.

Perry testified that, on the night before the offense, Travis drove Perry and another

friend to Tomball to see a midnight showing of a movie, The Watchmen, on an IMAX screen.

They were fans of the graphic novel on which the movie was based. They arrived in Tomball

early to pick up their tickets, and then they ate supper at a Subway restaurant. They waited

around in a Walmart, looking at toys and playing Guitar Hero, until it was time for the movie.

Travis was a big fan of LEGO and liked to build things; he looked at LEGO sets in Walmart

to see what new products were available. After the movie, they returned to College Station.

Travis dropped his friends off at their houses on his way home.

Photographs of Travis’s bedroom were offered and admitted as State’s Exhibits 18

through 20, and photographs of Travis and Rachel were offered and admitted as State’s

Exhibits 43-A and 57, with “no objection.” One photograph of Travis’s bedroom depicted

a guitar-shaped bottle that Perry thought “used to contain an alcoholic beverage,” and another

depicted a telescope. The prosecutor asked Perry if Travis had a telescope for as long as

Perry knew him. Perry answered affirmatively. Defense counsel then objected “to relevance,

403 and 404.” The prosecutor responded that he was “just showing the part of the house

where the shooting happened . . . and showing where Travis’s room was and Rachel’s room

as well.” The judge stated, “All right,” and then the defense requested a running objection

“pertaining to all questions of character and victim-impact . . . under Rule 403.” The court

denied the request for a running objection, stating, “No. I think we’ll just take them up one

THUESEN - 40

by one.” Perry identified State’s Exhibit 19 as a photograph that included Travis’s telescope

and State’s Exhibit 20 as a photograph of Travis’s room that depicted its typically messy

condition, his computer, and a copy of the graphic novel, The Watchmen. The prosecutor

then passed the witness for cross-examination.

After Perry’s testimony, Matthys testified. He stated that he met Rachel in August

2007 at a dance hall in College Station. He saw her sitting alone and introduced himself, and

then they talked and danced. They went to her place and watched movies for the rest of the

night. He felt instantly attracted to her. She had attended TCU for a couple of years before

moving to College Station.

At that point, defense counsel requested and received a hearing outside the presence

of the jury. Counsel objected under Rules 401, 402, 403, and 404 to the “State’s continual

admission of evidence of the character and personality and qualities of the victim.” The

prosecutor responded that this type of evidence was found to be admissible in Renteria v.

State.29 The prosecutor stated that in Renteria, the victim’s mother’s testimony about where

the victim attended school, what type of student she was, and what she liked to do, was not

improper victim-impact evidence. The prosecutor stated that he was just “giving background

about the two human beings. . . . Everything we’re saying is setting up the situation that

brought us here today.”

Defense counsel responded that the prosecutor was introducing victim-impact and

29

206 S.W.3d 689 (Tex. Crim. App. 2006).

THUESEN - 41

victim-character evidence under the guise of background evidence to show the jury that the

lifeworthiness and value of the victims was greater than the lifeworthiness and value of

appellant. Counsel further argued that the prejudicial nature of this evidence outweighed its

relevance. The trial court then stated, “I am going to allow you to put a face on the victims,

but it does seem to me that maybe you-all have gone a little too far on that. I am going to

overrule the objection at this time.” The court continued, “I will give a running objection to

you on that from here on . . . with this witness. But I may be quick to sustain objections in

the future if we get too much.”

Defense counsel’s initial running objection to victim-background information on the

grounds of relevance and unfair prejudice was sufficient as a general matter to preserve error

with respect to most of Wayne’s testimony.30 However, during Wayne’s testimony, defense

counsel expressly stated “no objection” as photographs of the victims, their family, and the

family home were offered into evidence while Wayne described the content of the

photographs and when and where they were taken. Therefore, error was not preserved as to

the photographs and Wayne’s descriptions of them.31

30

See, e.g., Ford v. State, 919 S.W.2d 107, 113-14 (Tex. Crim. App. 1996) (when record

reflected that appellant clearly objected “to any and all impact evidence” as to “all witnesses,”

and the trial court clearly understood the complaint and overruled it, running objection was

sufficient to preserve claim for appellate review).

31

See, e.g., Estrada v. State, 313 S.W.3d 274, 301-02 (Tex. Crim. App. 2010) (appellant

failed to preserve any error in the admission of State’s exhibits when defense counsel stated “no

objection” to their admission); see also Thomas v. State, 408 S.W.3d 877, 884-85 (Tex. Crim.

App. 2013) (rejecting mechanical application of rules of error preservation and waiver; a

statement of “no objection” should not be viewed in isolation but should be considered in the

(continued...)

THUESEN - 42

Although we conclude that defense counsel’s initial running objection preserved error

regarding most of Wayne’s testimony, we doubt that the objection was sufficient to preserve

error regarding Perry’s testimony. Appellant made his running objection before Wayne

testified. After Wayne testified, several witnesses testified about matters unrelated to the

victims’ backgrounds before Perry was called to testify.32 Defense counsel did not object

when Perry testified that he met Travis in the freshman honors dorm. Rather, counsel first

objected when the prosecutor asked Perry how long it took him to become friends with

Travis. When the court overruled that objection, Perry answered the question. This

objection, and the trial court’s overruling of it, are some indication that appellant and the trial

court recognized that the prior running objection to victim-background and -character

evidence did not extend to this witness. Defense counsel next objected after an exchange in

which Perry viewed a photograph of Travis’s room that included his telescope and responded

affirmatively to the prosecutor’s question of whether Travis always had a telescope. This

31

(...continued)

context of the entirety of the record as it reflects the parties’ and court’s understanding).

32

See, e.g., Sattiewhite v. State, 786 S.W.2d 271, 283 n.4 (Tex. Crim. App. 1989) (citing

Goodman v. State, 701 S.W.2d 850, 863 (Tex. Crim. App. 1985), which held that a defendant’s

“running objection to all questions concerning the offense, the nature of the offense, and

everything related to the offense,” made during the State’s cross-examination of one witness, was

not sufficient to preserve error with respect to a different witness who testified after the

intervening testimony of six other witnesses); cf. Ford, 919 S.W.2d at 112-14 (a running

objection based upon relevance and Rule 403 “as to any and all impact evidence” was sufficient

to preserve error as to several witnesses who were called consecutively to testify about impact of

offense and victim’s death).

THUESEN - 43

objection came too late to preserve error concerning that exchange.33 The other complained-

of items of information in Perry’s testimony came in without a timely objection, and so

appellant also failed to preserve error regarding those parts of Perry’s testimony.

Toward the end of Perry’s testimony on direct examination, the trial court expressly

refused to grant appellant a running objection under Rule 403. Therefore, no running

objection applied when Matthys testified. Further, appellant did not timely object to the

complained-of information that was presented through Matthys’s testimony. Thus, appellant

failed to preserve error regarding Matthys’s complained-of testimony. Accordingly, we will

not address the merits of this part of appellant’s point of error two.

However, because appellant’s running objection to relevance and undue prejudice

preserved error concerning most of Wayne’s testimony and, arguably, the first part of Perry’s

testimony, we will address that part of appellant’s point of error two on the merits.

Background evidence is, generally speaking, relevant because it is “evidence having any

tendency to make the existence of any fact that is of consequence to the determination of the

action more probable or less probable than it would be without the evidence.” 34 Appellant

acknowledges that “some background evidence is permissible to help the jury understand the

events surrounding the alleged offense.”35 All relevant evidence is admissible, except as

33

See Luna v. State, 268 S.W.3d 594, 604 (Tex. Crim. App. 2008).

34

Rule 401.

35

See Article 38.36 (in all prosecutions for murder, either party shall be permitted to

offer testimony as to all relevant facts and circumstances surrounding the killing and the previous

(continued...)

THUESEN - 44

otherwise provided by law.36

Rule 403 allows for the exclusion of otherwise relevant evidence when its probative

value is substantially outweighed by the danger of unfair prejudice.37 This rule favors the

admission of relevant evidence and carries a presumption that relevant evidence will be more

probative than prejudicial.38 The term “probative value” refers to the inherent probative force

of an item of evidence—that is, how strongly it serves to make more or less probable the

existence of a fact of consequence to the litigation—coupled with the proponent’s need for

it.39 “Unfair prejudice” refers to an undue tendency to suggest decision on an improper basis,

commonly, though not necessarily, an emotional one.40 Rule 403 bars the admission of the

offered evidence only when there exists a clear disparity between its degree of prejudice and

its probative value.41

Some victim-background evidence is admissible to establish the framework and

35

(...continued)

relationship existing between the accused and the deceased, together with all relevant facts and

circumstances going to show the accused’s condition of mind at the time of the offense).

36

Rule 402.

37

Rule 403; Davis v. State, 329 S.W.3d 798, 806 (Tex. Crim. App. 2010).

38

Williams v. State, 958 S.W.2d 186, 196 (Tex. Crim. App. 1997).

39

Casey v. State, 215 S.W.3d 870, 879 (Tex. Crim. App. 2007).

40

Montgomery v. State, 810 S.W.2d 372, 378 (Tex. Crim. App. 1990) (citing Advisory

Committee’s notes to Federal Rule of Evidence 403).

41

Davis, 329 S.W.3d at 806.

THUESEN - 45

context of the offense.42 However, typical “victim-impact” evidence—evidence concerning

the physical, psychological or economic effect of the crime on the victim’s family43 —

generally lacks “any tendency to make more or less probable the existence of any fact of

consequence at the guilt stage of trial.”44 In addition, evidence of a victim’s good or

peaceable character is generally not admissible at the guilt phase because it is irrelevant or

unfairly prejudicial.45

Questions of admissibility of evidence in general are subject to an abuse of discretion

42

Compare Matchett v. State, 941 S.W.2d 922, 931 (Tex. Crim. App. 1996) (finding no

error in trial court’s overruling objection to admission of victim’s widow’s testimony that she

had been married to the victim for twenty-five years, they had five children, and the victim was

home alone on the night of his murder, and also identifying her husband in a photograph of him

with friends), with Renteria, 206 S.W.3d at 705-06 (victim’s mother’s testimony about where the

victim went to school, what type of student she was, and what she liked to do, was not victim-

impact testimony because it did not concern how the murder affected the mother or her family’s

life, and so trial court properly overruled objection that her testimony constituted victim-impact

evidence – although the record showed that she cried during her testimony); see also DeLarue v.

State, 102 S.W.3d 388, 403-04 (Tex. App.—Houston [14th Dist.] 2003, pet. ref’d) (victim’s

mother’s testimony reciting basic facts surrounding how she learned of her daughter’s death,

including that she learned of it just before victim’s child’s birthday, and identifying photographs

of the victim that predated the offense, was not “victim-impact” evidence because this evidence

did not concern the physical, psychological or economic effect of the crime on the victim or her

family; rather, it showed the witness properly fixed the date of the event in her mind and

provided victim-background information).

43

See Matchett, 941 S.W.2d at 931.

44

See Miller-El v. State, 782 S.W.2d 892, 895 (Tex. Crim. App. 1990) (holding that

evidence of future hardship for attempted murder victim himself on account of his paralysis

caused by the assault was not admissible at the guilt stage of trial, citing TEX . R. CR. EVID . 401,

now TEX . R. EVID .401). If evidence of the impact upon the victim himself is typically irrelevant

at the guilt phase of trial, evidence of the impact upon others is even less likely to be relevant at

that phase.

45

TEX . R. EVID . 404(a). See, e.g., Fuentes v. State, 991 S.W.2d 267, 280 n.6 (Tex. Crim.

App. 1999) (“It is never competent for the State to prove the victim’s good or peaceable

character in the first instance.”).

THUESEN - 46

standard on direct appeal,46 and a trial court is charged with exercising its discretion to

distinguish admissible “victim-background” evidence, ostensibly offered as an aid to

understanding the context and framework of the offense, from inadmissible “victim-impact”

and “victim-character” evidence. The trial court abuses its discretion only when its decision

to admit evidence lies “outside the zone of reasonable disagreement.” 47

In this case, most of Wayne’s testimony provided general background information

about the victims, including their ages and family history, how they came to be living in the

house in College Station where they were killed, and Wayne’s observations of appellant and

Rachel’s interactions with him. Such testimony served the proper purpose of aiding the jury

in understanding the framework or context of the offense. However, it is arguable that

Wayne’s testimony about the victims’ talents, character traits, and plans for the future

exceeded that purpose. Similarly, much of Perry’s testimony served the proper purpose of

providing a framework or context for the offense, but arguably his testimony about the

development of his friendship with Travis, their interests and shared activities, and Travis’s

status as an honor student exceeded that purpose.

To the extent that this testimony did not aid the jury in understanding the framework

or context of the offense, it was not particularly probative of any fact of consequence to the

litigation, and the State’s need for it was slight. However, the degree of prejudice was also

46

Walters v. State, 247 S.W.3d 204, 217 (Tex. Crim. App. 2007).

47

Davis, 329 S.W.3d at 803.

THUESEN - 47

slight. The trial court had discretion to find that this testimony did not have an undue

tendency to suggest a decision on an improper emotional basis, such that the jurors would

convict appellant of capital murder even if they had a reasonable doubt concerning his guilt.

We conclude that the trial court did not abuse its discretion by determining that no clear

disparity existed between the testimony’s degree of prejudice and its probative value. Point

of error two is overruled.

In point of error three, appellant asserts that the trial court improperly allowed the

victims’ neighbor, Tabitha Foreman, to “testify about the emotional state of [appellant]”

immediately following the offense. He argues that Foreman’s testimony was harmful

because it undermined his defensive theory that although he shot the victims, he did not

intend to cause their deaths or know that their deaths would result.

Foreman testified about her observations as she was backing her car out of her

driveway shortly after the offense, while police and appellant were still at the crime scene.

She testified that she saw appellant sitting outside the house in handcuffs. The prosecutor

asked her, “Did he – at that point when you saw him, did he seem angry or mad?” Defense

counsel objected that the question was speculative. The prosecutor responded that the

question was not speculative because Foreman saw appellant and could say whether he was

angry from the look on his face. Counsel then asked Foreman on voir dire what she saw.

She stated that the defendant had a “straight face,” and she could see him very clearly.

Defense counsel again objected that Foreman’s testimony was speculative.

In a hearing outside the presence of the jury, the prosecutor responded that Foreman

THUESEN - 48

could make observations about appellant based on the look on his face, which would be a

barometer of his emotional state. Defense counsel continued to object that such an opinion

from Foreman would be speculative. The trial court stated, “I think it goes to the weight.

I am going to allow him to go into it. However, develop the facial expression before you get

to the punch line.” In the presence of the jury, the prosecutor again asked Foreman, “From

his facial expressions, did he seem to be mad?” Defense counsel objected “under Rules 401

and 403 as speculative.” This objection was overruled. Foreman responded that the

defendant did not seem to be mad or angry. The State then asked her if appellant had been

talking to himself, and she responded that he had not.

On cross-examination, defense counsel asked Foreman, “Did [appellant] have a dazed

look on his face?” Foreman responded, “Dazed? I wouldn’t call it dazed; no, sir.” Then,

on redirect, the prosecutor posed the following question: “[Counsel] just asked you if it was

a ‘dazed look’ in the defendant’s eye. You said no, you wouldn’t call it a dazed look. What

would you call it?” Foreman answered, “It was a look of no remorse.” Defense counsel did

not object to that exchange. On recross, defense counsel asked Foreman whether the

defendant was crying when she saw him. She responded, “I didn’t see a teardrop.” She

testified that she got a look at defendant for about seven seconds and made eye contact,

which was “why I remember the distinct look that I got.”

Rule 701 permits a lay witness to offer opinion testimony if the opinion is (a)

rationally based on the perception of the witness and (b) helpful to a clear understanding of

THUESEN - 49

the witness’s testimony or the determination of a fact in issue.48 The witness must establish

personal knowledge of the events from which her opinion is drawn, and her opinion must be

rationally based on that knowledge.49 An opinion that is an interpretation of the witness’s

objective perception of events (for example, something the witness saw) will satisfy the

personal knowledge requirement.50

Although it is impossible for a witness to possess personal knowledge of what

someone else is thinking, a witness may possess personal knowledge of facts from which an

opinion regarding someone else’s mental state may be drawn.51 An opinion is rationally

based on perception if it is an opinion that a reasonable person could draw under the

circumstances.52

The witness’s opinion must also be helpful to the trier of fact to either understand the

witness’s testimony or determine a fact in issue.53 “Whether an opinion meets the

fundamental requirements of Rule 701 is within the sound discretion of the trial court and

its decision regarding admissibility should be overturned only if it abuses its discretion.” 54

48

See Rule 701; Ex parte Nailor, 149 S.W.3d 125, 134 (Tex. Crim. App. 2004).

49

Fairow v. State, 943 S.W.2d 895, 898 (Tex. Crim. App. 1997).

50

Id. at 899; see also Osbourn v. State, 92 S.W.3d 531, 535 (Tex. Crim. App. 2002).

51

Fairow, 943 S.W.2d at 899.

52

Id. at 900.

53

Solomon v. State, 49 S.W.3d 356, 364 (Tex. Crim. App. 2001).

54

Fairow, 943 S.W.2d at 901.

THUESEN - 50

In this case, once the State established that Foreman’s opinion was based on her

perception of appellant’s facial expression, the trial court did not abuse its discretion by

overruling appellant’s objection to “speculation.”55 Point of error three is overruled.

In point of error four, appellant asserts that the trial court improperly admitted State’s

Exhibit 201, his cellular telephone records documenting calls and text messages in the hours

preceding the offense, in violation of his Texas constitutional right to privacy.56 He argues

that obtaining this evidence without a search warrant, court order, or consent violated his

right to privacy under Article I, Section 9, of the Texas Constitution, and so the evidence

should have been excluded under Article 38.23. Appellant complains that the State made no

attempt to show how the documents were obtained. He argues that he was harmed by the

admission of the telephone records because they corroborated witnesses’ testimony about

how, when, and with whom appellant communicated in the hours preceding the offense.

State’s Exhibit 201 consists of voluminous business records from appellant’s cellular-

telephone service provider. The records do not identify the account holders associated with

the telephone numbers that connected with appellant’s cellular telephone, and so they are not

informative in the absence of testimony identifying the account holders and describing the

55

See Fairow, 943 S.W.2d at 899 (jury is free to give as much or as little weight to the

opinion as it sees fit).

56

Appellant relies upon Richardson v. State, 865 S.W.2d 944, 948, 953-54 (Tex. Crim.

App. 1993). In Richardson, we concluded that the use of a pen register to track outgoing calls

made from a land line “may well constitute a ‘search’ under Article I, § 9 of the Texas

Constitution” and remanded the case to the intermediate court of appeals for a determination of

whether such a “search” would be reasonable in the absence of probable cause. See id.

THUESEN - 51

content of specific calls and text messages. The State referred to and used these records

several times during the trial, without objection, both before and after they were admitted

into evidence as State’s Exhibit 201. The prosecutor first showed one page of them to

appellant’s friend, Brian Keith, to confirm the length of time that he talked with appellant by

telephone on the night of March 5 when appellant called him for advice about his

relationship with Rachel. Although defense counsel initially objected that the entire packet

of telephone records was irrelevant, counsel then expressly stated that he had no objection

to the State’s showing one page to Keith. The State used the records again by showing pages

to Perry after Perry testified that he did not recall that appellant had called Travis on the night

before the offense. Upon viewing the pertinent telephone record, Perry confirmed that

appellant had called Travis one time that night. Defense counsel did not object to this use

of the records or to Perry’s testimony about the telephone call.

The State used the records in a similar manner when Matthys testified. The State

showed Matthys a portion of the records, and he testified that they reflected that appellant

called Rachel six times on the morning of March 6. Defense counsel did not object. The

State then offered the packet of records “for all purposes” as State’s Exhibit 201. Citing

Richardson,57 defense counsel objected to their admission, asserting that the telephone

records violated the Fourth Amendment of the United States Constitution and appellant’s

right to privacy under Article I, Section 9, of the Texas Constitution. Defense counsel added

57

865 S.W.2d 944.

THUESEN - 52

that, if the trial court admitted the records, counsel requested an opportunity to review and

object to records of specific telephone calls that might be inadmissible under Rule 403. The

court overruled the objection and admitted the records as State’s Exhibit 201, with the

understanding that defense counsel could review the records and object to records of specific

telephone calls under Rule 403.

The records were next used during the testimony of crime-scene investigator Detective

Liza Phillips, who viewed them and confirmed appellant’s call to Keith on the night of

March 5, as well as six calls and thirteen texts from appellant’s cellular telephone to Rachel’s

telephone on the morning of March 6, for a total of nineteen attempts to contact Rachel.

Defense counsel did not object to this use of the records or to any of the testimony

concerning appellant’s telephone communications.

In his recorded statement to police, which was admitted and published to the jury,

appellant described his calls to Walker, Keith, and Rachel, and his texts to Rachel before the

offense. Only appellant’s call to Travis and Phillips’s count of the number of calls and texts

that appellant sent to Rachel before the offense did not come in through appellant’s own

statement.58 Further, appellant does not argue that the State’s use of the telephone records

depended upon their formal admission as State’s Exhibit 201. Moreover, the record does not

reflect that their admission as an exhibit had the potential to influence the jury’s decision in

any way. Thus, even assuming error, it is hard to imagine how admission of State’s Exhibit

58

See Coble v. State, 330 S.W.3d 253, 282 (Tex. Crim. App. 2010) (erroneous admission

of evidence will not result in reversal when other such evidence was received without objection).

THUESEN - 53

201 contributed, even incrementally, to appellant’s conviction beyond the use to which the

State was allowed to put it sans objection.59 Point of error four is overruled.

In point of error five, appellant asserts that the trial court erred in admitting into

evidence over appellant’s objections the inflammatory and highly prejudicial photographs

of the victims’ bodies. Appellant describes State’s Exhibits 35 through 39, and 43 through

47, 51, 52, 57, and 58, as “numerous graphic photos depicting the horrific injuries suffered

by Travis and Rachel Joiner that led to their deaths.” Appellant argues that the photographs

were not probative of any issue at trial because he conceded that he shot and killed the

victims, and his sole defensive theory concerned his state of mind at the time of the shooting.

Instead, they created an extreme risk of unfair prejudice, such that the jurors would not be

able to dispassionately weigh the testimony of appellant’s mental health expert and consider

appellant’s theory that he did not knowingly and intentionally cause the victims’ deaths.

The admission of photographs over an objection is within the sound discretion of the

trial court.60 Generally, a photograph is relevant if verbal testimony concerning the matter

depicted in the photograph is also relevant.61 Rule 403 favors the admission of relevant

evidence and carries a presumption that relevant evidence will be more probative than

59

See TEX . R. APP. P. 44.2(a) (appellate courts must reverse upon finding constitutional

error unless it finds beyond a reasonable doubt that the error did not contribute to the conviction).

60

Sonnier v. State, 913 S.W.2d 511, 518 Tex. Crim. App. 1995).

61

Gallo v. State, 239 S.W.3d 757, 762 (Tex. Crim. App. 2007).

THUESEN - 54

prejudicial.62 However, otherwise relevant evidence may be excluded if its probative value

is substantially outweighed by the danger of unfair prejudice.63 A court may consider several

factors in determining whether the probative value of photographs is substantially

outweighed by the danger of unfair prejudice, including, but not limited to: the number of

exhibits offered, their gruesomeness, their detail, their size, whether they are black and white

or color, whether they are close-up, and whether the body depicted is naked or clothed.64 The

availability of other means of proof and the circumstances unique to each individual case

must also be considered.65

The State had the burden to prove every element of the offense of intentionally or

knowingly causing the deaths of two people during the same criminal transaction.66 Thus,

the State had to prove not only that the defendant inflicted the injuries that led to the victims’

deaths, but also that he acted with the conscious objective or desire to cause death or with

awareness that his conduct was reasonably certain to cause death.67 The number and location

of wounds inflicted are probative of a defendant’s intent to kill and his mental state at the

62

Id.

63

Id.

64

Id.

65

Id.

66

See TEX . PENAL CODE ANN . § 19.03(a)(7).

67

See, e.g., Landrian v. State, 268 S.W.3d 532, 537 n.27 (Tex. Crim. App. 2008); see

also Medina v. State, 7 S.W.3d 633, 636 (Tex. Crim. App. 1999).

THUESEN - 55

time of the offense.68 Additionally, evidence of injury may be probative of the specific

circumstances of the murder and the veracity of a defendant’s statement to police.69 Finally,

the State was entitled to present to the jury a picture of the events relied upon.70

State’s Exhibits 35 through 39 are photographs taken at the crime scene. Appellant

objected to these exhibits during a hearing conducted outside the jury’s presence in advance

of the State’s calling Matthew Byrnson, an emergency responder from the fire department,

to testify. Appellant objected to Exhibits 35 through 37 under Rules 401 and 402 as

irrelevant and duplicative because “there ha[d] already been a photograph shown of the

condition of Rachel Joiner in State’s Exhibit Number 28.”71 He also objected that State’s

Exhibits 38 and 39 were duplicative because they were similar to a photo of Travis that was

already in evidence as State’s Exhibit 32.72 Defense counsel further objected that these

68

See Motilla v. State, 78 S.W.3d 352, 359 (Tex. Crim. App. 2002); Rojas v. State, 986

S.W.2d 241, 250 (Tex. Crim. App. 1998).

69

See, e.g., Rojas, 986 S.W.2d at 250.

70

See United States v. Fields, 483 F.3d 313, 354-56 (5th Cir. 2007) (fact to which

evidence is directed need not be in dispute); see also United States v. Cisneros, 203 F.3d 333,

348 (5th Cir. 2000) (defendant’s offer to stipulate to murder victim’s shooting did not reduce the

probative value of evidence of how victim’s parents found their son, pathologist’s testimony

about victim’s autopsy, or photographs of victim’s corpse).

71

State’s Exhibit 28 is a photograph of Rachel lying on the floor of the garage,

previously introduced during an emergency responder’s testimony about how he found her when

he responded to the 9-1-1 call. This photograph shows the position of the gun in relation to

Rachel. Only her head and shoulder are visible; the rest of her body is obscured by other items in

the garage.

72

State’s Exhibit 32 is a photograph of Travis’s body lying face down at scene,

previously introduced during an emergency responder’s testimony about how he found Travis

(continued...)

THUESEN - 56

exhibits were more prejudicial than probative under Rule 403 because they were

inflammatory and cumulative. He argued that the photographs were inadmissible because

there was no challenge in this case to whether appellant shot the victims; the only question

was appellant’s mental state, and the photographs were not informative of that. The trial

court overruled these objections and granted a running objection so that counsel would not

have to repeat his objections when the photographs were offered before the jury.

These photographs were first offered during Byrnson’s testimony about his

observations and activities at the scene, including his team’s efforts to assist the victims. He

testified that State’s Exhibits 35 through 37 showed Rachel as he saw her lying on the floor

of the garage, other than the fact that he and his team put her on the backboard depicted in

Exhibit 35. He testified that State’s Exhibit 35, a photo depicting Rachel from the hips to the

top of her head after emergency responders had placed her on a backboard, showed evidence

of a gunshot wound to her chest. Exhibit 36 was a photo of Rachel’s bare feet with blood

on them. The amount of blood that was visible concerned Byrnson because he did not know

what additional internal bleeding there might be. State’s Exhibit 37, a photo of Rachel’s face

with an oxygen mask that emergency responders had placed over her nose and mouth,

showed that she was having difficulty breathing. Byrnson explained that Rachel was trying

to sit up and was telling him that she could not breathe. She also told him to go get her

72

(...continued)

when he responded to the 9-1-1 call. This photograph was taken by someone standing by

Travis’s feet and shows his position in relation to the staircase.

THUESEN - 57

brother inside the house. Her skin was very pale, indicative of inadequate perfusion, which

was a sign of blood loss, shock, difficulty breathing, and not getting enough oxygen to the

blood. She had a gunshot wound on the thumb of her right hand. Based on Byrnson’s

assessment of the situation, it was evident that Rachel needed to be in an operating room, so

they transported her to the hospital. She appeared to be struggling and in pain. After they

loaded her onto the stretcher, Byrnson asked her who shot her, and she said, “John did . . .

. My boyfriend.” At that time she had the same look on her face that was depicted in State’s

Exhibit 37.

Byrnson testified that after Rachel was loaded into the ambulance, he and his

lieutenant immediately went into the house to assist her brother. They entered through the

door between the garage and the interior of the house. They observed a lot of blood in the

house, and as they turned a corner they saw Travis lying on the floor. Byrnson testified that

State’s Exhibit 38, a photograph of Travis’s head and upper body as he lay face down,

accurately depicted Travis as Byrnson first found him. Upon seeing Travis’s condition,

Byrnson went back to the fire truck to unload a heart monitor, but before he could unload it,

a second ambulance pulled up. The responders who arrived in the ambulance carried a heart

monitor with them, so Byrnson returned to the house to assist them. Exhibit 39 accurately

depicted Travis as he appeared after emergency responders had rolled him onto his back in

order to move him to a backboard and load him into the ambulance. Travis had only

“pulseless electrical activity” in his heart, meaning that his heart had some activity but was

not physically beating and moving fluid. Byrnson did not believe that Travis “had a chance,”

THUESEN - 58

but he performed chest compressions on Travis all the way to the emergency room. Blood

came out of an open chest wound during the compressions.

The State used Exhibits 35 and 37 again during the testimony of emergency-responder

Michael Butschek. Butschek identified a gunshot wound below the hem of Rachel’s shirt

in Exhibit 35 and stated that Exhibit 37 accurately reflected the distress that she was in when

he found her. He described the lifesaving measures that were taken in the ambulance. He

stated that Rachel was suffering and in shock, and she continued having difficulty breathing

on the way to the hospital. He confirmed that her injuries were in the center of her body

where her vital organs were located.

The other photographs at issue are autopsy photographs. Appellant objected to State’s

Exhibits 43 through 47, 51, 52, 57, and 58 during a hearing conducted outside the presence

of the jury before they were offered during the testimony of Dr. David Dolinak, the medical

examiner who autopsied the victims on March 7, 2009. Appellant objected that all of these

exhibits were cumulative. He made no other objections with respect to State’s Exhibits 43

and 44, which were photographs of Travis’s body at the medical examiner’s office.

Additionally, appellant objected to State’s Exhibits 45 through 47 as duplicative because they

depicted wounds that were already depicted in Exhibits 43 and 44.

Defense counsel objected to State’s Exhibits 51 and 52 as inflammatory because they

showed a surgical incision on Rachel’s body that was not from the offense itself. He asserted

that State’s Exhibit 57, depicting entrance wounds on Rachel’s back and buttock, and State’s

Exhibit 58, a close-up view of the wound on her back, were cumulative of State’s Exhibits

THUESEN - 59

53 and 54.73 The court overruled the objection and granted a running objection. The

prosecutor made a record that the State had selected seven photographs of Travis and eight

or nine of Rachel from out of sixty available autopsy photographs, which were separate and

apart from the sixty-six available photographs of the victims at the scene and in the hospital.

Before the exhibits were offered, Dolinak testified before the jury that Travis had one

gunshot wound about halfway down his back which cut his spinal cord in half. Another shot

entered above his right buttock area and went through his pelvic bone and intestines before

lodging in his liver. From the front, Travis had a wound to the upper left side of his chest,

near his armpit, as if he were shot from the side. The bullet went across his chest from left

to right, angling downward, and lodged in his lower back. It passed through both of his

lungs, his heart, and his esophagus. State’s Exhibit 43 was then admitted to show the

location of the entrance wound in Travis’s left upper chest, just above his armpit, and State’s

Exhibit 44 was admitted to show the location of the two entrance wounds in Travis’s back

and buttock. One of the shots into Travis’s back went into his spinal cord, while the one in

his buttock angled up and went into his liver. State’s Exhibit 45 was a close-up of the wound

to Travis’s back, with a ruler next to it to show size, while State’s Exhibit 46 was a close-up

of the wound to his buttock, with a ruler next to it. State’s Exhibit 47 was a close-up of the

wound to Travis’s chest, with a ruler next to it.

73

State’s Exhibits 53 and 54 are close-up photographs of an entry wound and exit wound

on the front of Rachel’s torso. Exhibit 53 depicts an entrance wound, with a ruler next to it to

show size, and Exhibit 54 depicts an exit wound, with a ruler next to it. Appellant did not

challenge the admissibility of these exhibits.

THUESEN - 60

Dolinak also testified about Rachel’s injuries. One shot was to her middle-lower

chest, and it entered one or two inches from her heart, lungs, and liver. It was close to the

spine region. This shot fractured her lower breastbone, then angled right and downward

through her diaphragm and liver before it lodged in the right side of her back. Another shot

was to Rachel’s left upper back. It fractured a rib, passed through her left lung, and then

broke another rib before passing out through her upper chest. The third shot entered in the

upper part of her left buttock, fractured her pelvic bone, and exited in front, just above her

genital area. A fourth wound was to Rachel’s right hand. It went into the area between her

thumb and index finger and hit the bone at the base of her thumb.

Dolinak used State’s Exhibit 51 to locate the entrance and exit wounds on Rachel’s

chest. He testified that the entrance wound was just above the surgical incision and that the

bullet passed through her liver. He identified State’s Exhibit 52 as a close-up view of the

entrance and exit wounds on Rachel’s chest. He identified little red markings around the

entrance wound and the somewhat irregular wound shape, which indicated that the bullet that

made the wound went through something else before it entered Rachel’s chest. Dolinak

inferred that this wound was made by the bullet that passed through Rachel’s hand before it

reached her body. State’s Exhibit 53 is another close-up view of that entrance wound, with

a ruler next to it to show size. State’s Exhibit 54 is a close-up view of the exit wound on her

chest, with a ruler next to it. State’s Exhibit 56 shows the bullet wound on Rachel’s hand.

State’s Exhibit 57 shows two red circles—entrance wounds—on her back and buttock. The

upper wound was caused by the bullet that went through her left lung, and the lower wound

THUESEN - 61

was caused by the bullet that fractured her pelvic bone. Dolinak used State’s Exhibit 58, a

close-up view of the entrance wound to Rachel’s back, to show that her heart and lungs were

in the area of that gunshot wound. Any one of Travis’s three injuries would have been fatal,

and two of the three bullets that hit Rachel caused fatal injuries.

Concerning the autopsy photographs, we note that appellant objected to State’s

Exhibits 51 and 52 as inflammatory, but he objected to the remaining photographs only on

grounds of being duplicative or cumulative. Accordingly, only his trial objections to State’s

Exhibits 51 and 52 comport with his complaint on appeal that the autopsy photographs

should have been excluded because they were inflammatory and highly prejudicial.

However, even assuming arguendo that appellant’s objections at trial were adequate to

preserve his current complaint, this point of error is without merit.

In this case, the color photographs taken at the scene showed the victims as they

appeared to first responders shortly after appellant shot them, and the autopsy photographs

showed the locations and characteristics of their wounds. This evidence provided a picture

of the events the State relied upon to show how the victims died and the severity of their

injuries.74

Appellant’s defense was that he lacked the requisite mens rea for capital murder, and

he presented evidence of his mental illness in support of his defense. He also argued that,

74

See Sonnier, 913 S.W.2d at 519 (“[W]hen the power of the visible evidence emanates

from nothing more than what the defendant has himself done we cannot hold that the trial court

has abused its discretion merely because it admitted the evidence.”).

THUESEN - 62

due to his PTSD and Rachel’s statements that her brother had a gun, he felt threatened by

Travis. Additionally, he argued that the fact that he used only six of his first magazine of

seven bullets and did not use the second magazine that he had brought with him was

evidence that he did not intend to kill the victims.

As previously stated, the number and location of the wounds inflicted are probative

of a defendant’s intent.75 The State presented a moderate number of photographs to

demonstrate the effects of six gunshots on two victims.76 The photographs of the victims at

the scene were presented through the testimony of first responders, who verified that they

accurately depicted the victims as they were found at the scene and as emergency responders

began lifesaving efforts. The autopsy photographs were first presented through the testimony

of the medical examiner, who used them to describe the locations and characteristics of the

bullet wounds and the damage that each bullet had caused. These photographs were highly

probative to show the full extent of the injuries appellant inflicted on the victims.77 The fact

that the autopsy photographs showed portions of the victims’ naked bodies was incidental

to providing a clear and accurate view of the gunshot wounds.78

State’s Exhibits 51 and 52, autopsy photographs of the gunshot wounds to Rachel’s

75

See Motilla, 78 S.W.3d at 359; Rojas, 986 S.W.2d at 250.

76

See Gallo, 239 S.W.3d at 762 (number of exhibits offered is a factor a court may

consider in determining whether probative value of photographs is substantially outweighed by

danger of unfair prejudice).

77

See id. at 763.

78

See Williams v. State, 301 S.W.3d 675, 693 (Tex. Crim. App. 2009).

THUESEN - 63

chest, also depicted a midline incision that began below her breasts and continued lengthwise

to her pelvic region. This incision was stitched closed. The medical examiner identified this

incision as a “surgical incision,” and an emergency room doctor and a surgeon testified about

incisions they made, including this one, during their efforts to save Rachel’s life. There was

no danger that the jury would attribute this incision to appellant’s conduct.79

Considering the testimony in this case and the elements that the State had to prove to

the jury beyond a reasonable doubt, the trial court did not abuse its discretion in finding that

these photographs were relevant and that their probative value was not substantially

outweighed by the danger of unfair prejudice. Point of error five is overruled.

In point of error six, appellant asserts that the trial court erred in admitting evidence

at the guilt phase that Leah’s protective order against appellant was in place at the time of

the offense. Although appellant frames this point of error in terms of evidence of the

protective order, his argument primarily concerns the admissibility of evidence of his

previous conduct toward Leah that precipitated the protective order and whether this

evidence was inherently prejudicial. He asserts that the redacted protective order that was

admitted into evidence, and references to the protective order that he made in his statement

to police, constituted extraneous offense evidence. Appellant contends that this evidence did

not show his relationship to the victims of the instant offense and did not show that he had

79

See, e.g., Rayford v. State, 125 S.W.3d 521, 531 (Tex. Crim. App. 2003) (no abuse of

discretion in admitting photos that were not more gruesome than the crime, and effects of

emergency-room intervention could be explained).

THUESEN - 64

previously acted with intent to kill or with knowledge that his conduct would result in death.

Thus, appellant argues, evidence of the protective order was not probative of his state of

mind because he never argued that he lacked intent to cause harm when he shot the victims,

only that he lacked intent to cause, or awareness that his conduct would result in, death.

The parties and court conferred outside the jury’s presence about anticipated evidence

regarding the protective order. The State asserted that this evidence was relevant under Rule

404(b) to show appellant’s intent and motive. The State further asserted that the fact that

appellant was banned by the protective order from carrying a gun precluded any self-defense

claim or other excuse for appellant’s having the weapon with him when he confronted

Rachel. The State noted that appellant’s conduct toward Leah and Rachel was similar:

repeated calling and texting, finding them when they were away from home, and sneaking

into their homes to wait for them. This prior bad-act evidence also rebutted the defense’s

theory that, as a result of appellant’s mental illness, he lacked the requisite mens rea to

commit capital murder. The trial court ruled that the State could introduce the extraneous

bad acts and the protective order because appellant’s intent and remorse were at issue. The

judge reasoned that “[t]he stalking scenario [in that case was] basically the same scenario

here,” except that appellant “took it to a higher level” in this case.

Appellant objected to this evidence under Rules 404(b) and 403, arguing that the State

needed to specify the non-character-conformity exception that applied to it, and that its

probative value was outweighed by its inflammatory and prejudicial nature. Appellant also

objected that, although some features of the prior scenario were similar, the issue in this case

THUESEN - 65

was whether he intended to commit a capital murder, not whether he intended a criminal

trespass or an assault. Appellant argued that the prior bad acts involving Leah had only

prejudicial effect, no probative value; they showed that appellant was a bad character, but

they did not go to his state of mind when he pulled the trigger in this case. The trial judge

overruled appellant’s objections and stated that he would give limiting instructions on the

extraneous-offense evidence. The court also redacted much of the protective order before

admitting it as State’s Exhibit 206.

Before the jury, appellant objected when the State asked his mother, Patricia, whether

she knew that a young lady had obtained a protective order against appellant in 2007.

Appellant referred to his prior objections to State’s Exhibit 206 and obtained a running

objection. The court gave a limiting instruction, and Patricia affirmed that she was aware of

the protective order.80 On redirect, Patricia stated that she did not know whether appellant

80

State’s Exhibit 206, the redacted protective order admitted during Patricia’s testimony,

indicated in relevant part that Leah had applied for a protective order and that the order provided:

The Court finds that the parties have agreed in writing to the terms under section

85.021 of the Texas Family Code set out below, and the Court approves that

agreement. The Court further finds that the parties have been informed that the

agreed order is enforceable civilly or criminally.

***

The Court finds that the following protective orders are for the safety and welfare

and in the best interest of Applicant and other members of the household and are

necessary for the prevention of family violence.

Orders

IT IS ORDERED that Respondent, John Darrell Thuesen, is:

(continued...)

THUESEN - 66

had a gun in his house. She further related that she did not know that he was barred by the

protective order from having a gun for two years. She stated that appellant as she knew him

could not have intentionally or knowingly killed the victims.

The parties and court had a conference outside the presence of the jury before

appellant’s statement to police was published through the testimony of Detective Massey.

Appellant wanted to redact part of his statement, including a reference to the previous

stalking. The trial court ruled that the State could introduce that part without redaction.

In his statement to police, appellant first mentioned Leah when Massey asked him

whether he had a girlfriend before Rachel. Appellant stated that his last “real girlfriend” was

“the one [he] got in trouble with before” after he kept trying to call her and ask her why she

would not talk to him. He acknowledged that he would not leave her alone when she told

him to go away. He related that he repeatedly called her and showed up at her house and that

he would find her when she was out with friends. He stated that “they” tried to file stalking

charges. These events happened around July or August of 2007. Detective Webb asked

80

(...continued)

Prohibited from possessing a firearm or ammunition, unless Respondent is a

peace officer, as defined by section 1.07 of the Texas Penal Code, actively

engaged in employment as a sworn, full-time paid employee of a state agency or

political subdivision.

Effective Period

This order shall continue in full force and effect until September 4, 2009.

Finally, the “Warnings” section of the order reiterated the ban against possessing a firearm and

set forth the range of penalties for violating the order, including a warning that possessing a

firearm while the protective order was in effect could result in federal criminal penalties.

THUESEN - 67

appellant about the timing of his gun purchase in May 2007 and whether that purchase was

connected to his problems with Leah. Appellant stated that it was not, but he acknowledged

that, when that relationship was ending, he had thoughts that were similar to what he was

thinking during this incident. Specifically, he stated, “I was tired of being walked on or lied

to or something . . . . I didn’t want the bullshit.”

As a result of his conduct toward Leah, appellant was arrested twice. The first time,

he received a criminal-trespass warning for sneaking up to her house and knocking on her

window. The second time, he was arrested because he showed up at her house the day after

he received the warning. Appellant stated that he was charged with trespassing and public

intoxication and that “they” filed a protective order. By then, he had discovered information

on Leah’s MySpace account about her going out with someone else, so he agreed to leave

her alone.

In considering a trial court’s ruling on the admissibility of evidence, we must

determine whether the trial court abused its discretion.81 In other words, we must uphold the

trial court’s ruling if it is reasonably supported by the record and is correct under any theory

of law applicable to the case.82 Finally, we must review the trial court’s ruling in light of

what was before the trial court at the time the ruling was made.83

Evidence of a person’s other bad acts is not admissible to prove the character of a

81

Carrasco v. State, 154 S.W.3d 127, 129 (Tex. Crim. App. 2005).

82

Willover v. State, 70 S.W.3d 841, 845 (Tex. Crim. App. 2002).

83

Id.

THUESEN - 68

person to show action in conformity therewith, but it may be admissible to establish intent

or rebut a defensive theory.84 If relevant to a non-character-conformity issue, the evidence

is still properly excluded under Rule 403 when its probative value is substantially outweighed

by the danger of unfair prejudice.85 The purpose of excluding such evidence is to prevent a

jury that has a reasonable doubt of the defendant’s guilt in the charged offense from

convicting him anyway based solely on his criminal character or because he is generally a

bad person.86

Appellant now asserts that he never argued at trial that he lacked intent to harm the

victims, but the record does not support his assertion. The question of whether appellant

intended to harm the victims was raised by the defense’s evidence and arguments. In his

statement to police, appellant said that he did not intend to hurt the victims. In addition,

some of Dr. Saunders’s testimony arguably negated appellant’s intent with respect to harming

the victims. The defense’s arguments also focused on appellant’s mentally impaired and

irrational state. Finally, appellant requested and received jury instructions concerning the

lesser-included offenses of murder and manslaughter. A jury could have convicted appellant

of murder by finding that he intended to cause serious bodily injury, but a jury could have

convicted him of manslaughter only if it found that he lacked the mens rea to commit murder

84

Rule 404(b); Montgomery, 810 S.W.2d at 387-88; see also Robbins v. State, 88

S.W.3d 256, 259 (Tex. Crim. App. 2002).

85

See Casey, 215 S.W.3d at 879-80.

86

Garcia v. State, 201 S.W.3d 695, 703-05 (Tex. Crim. App. 2006).

THUESEN - 69

and that he recklessly caused the victims’ death. On the facts of this case, the jury could have

found appellant not guilty of any of these offenses only if it found that the State had not

proven beyond a reasonable doubt that appellant intentionally or knowingly killed the

victims, intentionally harmed the victims, or consciously disregarded a substantial and

unjustifiable risk that the victims’ deaths would occur.

Appellant’s sole defensive theory was that he lacked intent or knowledge with respect

to the result of his conduct when he shot the victims. In support of this theory, he offered

evidence that he was mentally ill, and that he shot Rachel to keep her from leaving without

talking to him, and he shot Travis to stop him from helping Rachel leave. His position was

that, due to his mental illness, he was so overwhelmed by the stress of being rejected by his

girlfriend that he was unable to appreciate that his conduct of shooting the victims would kill

them, not simply stop them.

By placing his intent into issue, appellant opened the door to evidence of other bad

acts that established his intent and rebutted his defensive theory. His prior conduct toward

Leah when she tried to end their relationship was demanding and intrusive in a manner

similar to his conduct toward Rachel after she told him that she needed space. It is at least

subject to reasonable disagreement whether the evidence of appellant’s conduct toward Leah

made his defensive theory less probable.87 The trial court, therefore, did not abuse its

discretion in admitting this evidence. Point of error six is overruled.

87

See Bass v. State, 270 S.W.3d 557, 563 (Tex. Crim. App. 2008).

THUESEN - 70

In point of error eight, appellant asserts that the trial court erred in allowing the State

to elicit testimony during its cross-examination of Dr. Saunders that appellant had stalked and

choked Leah. On appeal, appellant “incorporates by reference the arguments and authorities

for Point of Error Number 6.” He asserts that evidence that he acted violently toward a

previous girlfriend was not probative of his intent to kill, was not part of any plan or

preparation related to the killings, and was not evidence of a motive to cause the victims’

deaths. He contends that this evidence “merely tended to show that Appellant was generally

violent and would harmfully distract from the issue of his actual mental state.”

During its cross-examination of Saunders, the State asked him if he had considered

appellant’s relationship with Leah, and Saunders acknowledged that he had. Saunders noted

that, in the instant offense, appellant was acting consistently with his prior behavior toward

Leah. Specifically, appellant pursued Leah, even after she told him not to, in an effort to

save the relationship, and he demonstrated a similar level of over-involvement and lack of

boundaries. The trial court then gave the jury an extraneous bad-act instruction. The defense

objected, under Rule 705(d), that the State was eliciting underlying facts or data that were

inadmissible into evidence, but the trial court ruled that the facts were admissible in evidence

and that the State could explore the matter. The State pointed to the part of appellant’s

statement to police in which he acknowledged that he called Leah continuously and that his

conduct had been consistent with the charges.

The State also asked Saunders if he was aware that appellant had choked Leah on a

prior occasion, and Saunders answered affirmatively. Saunders testified that appellant

THUESEN - 71

blamed this conduct on a startle response. The prosecutor asked Saunders whether the police

report regarding the incident with Leah noted that appellant’s behavior was “consistent with

a deranged person” and that appellant had “propensities for one that could harm another.”

Saunders acknowledged that he had read such information in the report.

At that point, defense counsel approached the bench and complained that the State had

exceeded the scope of cross-examination under Rule 705(d) and was reading from the police

report. He argued that the State was offering evidence of future dangerousness, which

related to the punishment phase. He also objected that the statements from the police report

were offered solely as character evidence, in violation of Rule 404(b), and that the error

could not be cured by an instruction to disregard. The judge sustained defense counsel’s

objection and stated that he would provide an instruction to disregard the last statement of

the prosecutor, but he denied counsel’s request for a mistrial. Defense counsel then

requested a running objection to “everything about Leah Mathis,” and the court granted it

with respect to the rest of Saunders’s testimony.

For the reasons discussed in point of error six, above, appellant’s complaint with

respect to the stalking and trespassing evidence presented during Saunders’s testimony lacks

merit. To the extent that appellant complains of the reference to choking Leah, it does not

appear from the record that he objected to this particular testimony. Therefore, he failed to

preserve error.88 Point of error eight is overruled.

88

TEX . R. APP . P. 33.1.

THUESEN - 72

In point of error nine, appellant asserts that the trial court erred in denying his motion

for mistrial after the State elicited improper character evidence during Saunders’s testimony,

specifically the notation in a police report that appellant had a propensity to harm others. He

also contends that the trial court’s instruction to disregard was not sufficient to cure the error.

He appears to argue that the harm resulting from the “amount of evidence concerning

Appellant’s violent character” made it “unlikely that a jury could follow the trial court’s

instruction to disregard or to consider [the evidence] for only a limited purpose.”

As described in point of error eight, above, the question was asked and answered

before appellant objected. Therefore, he did not preserve error.89 Even so, the trial court

sustained the objection and gave the jury an instruction to disregard. Instructions to the jury

are generally considered sufficient to cure improprieties that occur during trial.90 The

instruction in this case was sufficient to cure any error.

With respect to appellant’s complaint that the “amount of evidence” of his “violent

character” made it unlikely that the jury could follow the trial court’s instructions, we

observe that very little evidence of appellant’s violent conduct toward Leah was presented

at the guilt phase. Moreover, appellant does not direct us to any authority for his position

that the “amount of evidence” could have had an adverse effect on the jury’s ability to follow

89

See Luna, 268 S.W.3d at 604 (if defendant fails to object until after an objectionable

question has been asked and answered, and he can show no legitimate reason for the delay, his

objection is untimely and any claim of error is forfeited).

90

See Gamboa v. State, 296 S.W.3d 574, 580 (Tex. Crim. App. 2009).

THUESEN - 73

the trial court’s instructions. Therefore, this complaint is inadequately briefed and presents

nothing for review.91 Point of error nine is overruled.

In point of error ten, appellant asserts that the trial court erred when it excluded

Defendant’s Exhibit 15 (the “Lagrone order”)92 from evidence at the guilt phase.93 Appellant

complains that the exclusion of the court’s pre-trial Lagrone order, which provided that the

State could conduct its own mental evaluation of appellant, denied him the opportunity to

present probative evidence and violated his rights to due process guaranteed by the Fifth and

Fourteenth Amendments to the United States Constitution. During cross-examination, the

prosecutor elicited testimony that Saunders failed to ask appellant during his evaluation what

appellant was thinking at the time of the offense, and the prosecutor mentioned this omission

again in closing argument. Appellant claims that this left a false impression with the jury that

the State did not have an opportunity to conduct its own mental health examination of

91

TEX . R. APP . P. 38.1; Lucio v. State, 351 S.W.3d 878, 896 (Tex. Crim. App. 2011). In

any event, even if we were to reach it, we would reject appellant’s argument on the merits. The

“amount of evidence concerning [a]ppellant’s violent character” that was admitted at the guilt

phase of trial, beyond the reference to his “propensities” in the police report, was not such as to

render the trial court’s instruction to the jury to disregard that reference inefficacious.

92

See Lagrone v. State, 942 S.W.2d 602, 610 (Tex. Crim. App. 1997) (citing Soria v.

State, 933 S.W.2d 46, 57-59 (Tex. Crim. App. 1996)) (when the defense plans to introduce

testimony based on a psychiatric examination of defendant, the trial court may compel a

psychiatric examination by a State’s expert, and if the defense introduces expert testimony based

on the defense expert’s examination, the State may present expert rebuttal testimony).

93

The record reflects that, after the State rested its case in rebuttal at the guilt phase,

appellant requested at the bench that the trial court admit the Lagrone order into evidence. The

trial court held that this order was inadmissible. Appellant stated that he wanted to make a

proffer outside the presence of the jury, but otherwise, the defense rested. Appellant made a bill

of exception and re-offered the Lagrone order. The trial court again excluded the Lagrone order

from evidence but included a copy in the record for purposes of appeal.

THUESEN - 74

appellant and present evidence unfavorable to appellant because only the defense expert

could evaluate him. Appellant asserts that if the Lagrone order had been admitted, he could

have argued that the State had an opportunity to have its own expert evaluate appellant, and

the fact that the State chose not to examine appellant suggested an inference that such an

evaluation would have resulted in evidence favorable to appellant.

In the instant case, the trial judge acted within his discretion by preventing appellant

from presenting the Lagrone order as evidence that the State had an opportunity to obtain its

own expert to conduct a mental evaluation. We fail to comprehend how the prosecutor’s

question whether Saunders asked appellant what he was thinking at the time of the offense

during his examination of appellant could have left the false impression that the State was

given no opportunity to conduct its own mental health evaluation of appellant.94 Nor do we

perceive (and appellant does not explain) how the fact that the State could have evaluated

appellant pursuant to the Lagrone order serves to rehabilitate whatever adverse inference the

jury might have drawn from the fact that Saunders failed to ask appellant about his state of

94

That the State in fact produced no expert witness of its own at trial to testify about

appellant’s state of mind during the offense may have left the jury with the impression that the

State: 1) had no opportunity to evaluate appellant; 2) had the opportunity to evaluate appellant,

but chose not to; 3) had the opportunity to evaluate appellant and did so, but failed to call its

expert to testify about that evaluation because it led to evidence favorable to appellant; or 4) had

the opportunity to evaluate appellant and did so, obtained an evaluation favorable to the State,

but was unable or unwilling to call its expert to the witness stand for reasons that are unknown

but in any event unrelated to the results of the evaluation. The jury would not have had any

particular basis, however, to prefer one of these theories over the others. While it is certainly true

that the prosecutor established that Saunders failed to ask appellant about his state of mind

during the offense, adding that circumstance to the mix would not logically cause the jury to

prefer one of these theories to the others.

THUESEN - 75

mind. It was well within the trial court’s discretion, therefore, to conclude that the Lagrone

order bore no relation to any fact—either an elemental fact or an evidentiary fact (such as the

credibility or reliability of a witness’s opinion with respect to an elemental fact)—that is of

consequence in the case.95 The trial court acted well within its discretion to exclude the

Lagrone order from evidence. Point of error ten is overruled.

In point of error eleven, appellant asserts that the trial court erred when it overruled

appellant’s objection to the jury charge at the guilt phase for failing to instruct the jury that

the State had a right to conduct its own mental health examination of appellant.96 He

complains that the jury charge misleadingly implied that the State could not have conducted

its own mental evaluation of appellant by instructing the jury: 1) that the law does not require

a defendant to produce evidence; and 2) that the jury may not draw any adverse inference

from a defendant’s failure to testify. Appellant does not elaborate on how these instructions

operated to create the mistaken impression that the State was prevented from conducting its

own expert evaluation of appellant’s mental health.

The trial court must give the jury a written charge “setting forth the law applicable to

the case; not expressing any opinion as to the weight of the evidence, not summing up the

95

TEX . R. EVID . 401.

96

At the guilt-phase charge conference, the trial court denied appellant’s proffered

“Lagrone instruction,” but stated that the prosecutor would open the door to such an instruction

if he argued in closing that Saunders never asked appellant what he was thinking because he

knew that the answer would not be favorable to the defense. Appellant argued that the State had

already opened the door by questioning Saunders about his failure to ask appellant what he was

thinking at the time of the offense. Appellant offered his proposed instruction, and the trial court

declined to give it.

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testimony, discussing the facts or using any argument in his charge calculated to arouse the

sympathy or excite the passions of the jury.”97 As with any criminal defendant, appellant had

a Fifth Amendment privilege not to testify against himself,98 and appellant’s jury was

instructed accordingly. This Fifth Amendment privilege against self-incrimination extends

beyond the courtroom itself to cover pre-trial expert evaluations as well.99 A defendant’s

Fifth Amendment privilege not to submit to evaluation by a State’s expert, we have held, is

subject to waiver: A defendant who submits to evaluation by his own expert waives his Fifth

Amendment privilege with respect to the subject matter of that evaluation if his own expert

later testifies.100 Admissibility of testimony from the defendant’s expert may be made

contingent on the defendant’s first having submitted to an evaluation by a State’s expert, who

may testify at trial about whatever subject matter the defendant’s own expert witness first

testifies to.101 Appellant’s argument seems to be that the trial court’s instruction with respect

to burden of proof and the privilege against self-incrimination would have informed the jury

of the privilege he had not to submit to an evaluation by a State’s expert, but not about the

possibility that (as in this case) he might have effectively waived that privilege. Appellant

seems to assert that, because here he did waive the privilege, the law providing for waiver

97

Celis v. State, 416 S.W.3d 419, 433 (Tex. Crim. App. 2013) (quoting Article 36.14).

98

U. S. CONST . amend. V.

99

Estelle v. Smith, 451 U.S. 359, 466-68 (1981).

100

Lagrone, 942 S.W.2d at 610-11.

101

Id. at 611-12.

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of the privilege became “law of the case” that must be submitted to the jury under Article

36.14.

But appellant’s jury was never explicitly told that the Fifth Amendment privilege

extends to pretrial expert evaluations. Appellant’s argument takes for granted that his jury

was aware of the full scope of the privilege and therefore needed to be made aware that the

privilege could be, and in fact was, waived in this case when Saunders testified. But if we

are to indulge appellant’s presumption that appellant’s jury knew, without having to be told,

that the appellant’s privilege against self-incrimination would extend to a pretrial State’s

evaluation, why would we not likewise indulge the presumption that the jury also knew,

without having to be told, that the privilege could be waived if appellant first submitted to

an evaluation by his own expert? Rather than entertain either of these dubious presumptions,

we conclude that the trial court’s instructions with respect to burden of proof and the

privilege against self-incrimination simply did not create a mistaken impression that the State

was not given the opportunity to evaluate appellant.

An instruction in the jury charge to the effect that the State had a right to conduct its

own mental health evaluation of appellant would have focused the jury’s attention improperly

on a collateral issue and invited the jury to speculate about evidence that was not before it.102

The trial court did not err in refusing to give such an instruction. Point of error eleven is

102

See Estrada, 313 S.W.3d at 312 (trial court did not err by refusing to instruct jury that

the mere fact that appellant had committed a capital offense was insufficient in itself to warrant a

finding of future dangerousness).

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overruled.

In point of error fourteen, appellant asserts that the trial court erred when it granted

the State’s motion in limine that prevented defense counsel from arguing that the State had

a right to have its own mental health examination of appellant. He complains that he should

have been allowed to argue to the jury that the State could have had its own expert examine

appellant in order to dispel the suggestion by the State that appellant’s mental health evidence

was somehow withheld or manipulated.

During the charge conference, the State moved in limine to prevent defense counsel

from arguing to the jury that the State could have retained a psychologist to “speak with”

appellant but failed to do that. The State clarified that it was not challenging whether the

defense could argue that the State did not present its own expert, but that it did not believe

that the defense could argue specifically that the State had access to appellant but failed to

obtain its own expert evaluation or testing. The State argued that its access to appellant

under the pretrial Lagrone order was a peripheral issue. The State asserted that, even with

the proposed limitation, the defense could still argue that the State never called an expert to

rebut the defense expert.

Defense counsel countered that the State would be able to create a false impression

that the defense could not correct, because the prosecutor planned to persuade the jury that

the defense was hiding something by arguing that the defense expert failed to ask appellant

certain questions, when in fact the State could have hired its own expert to ask those

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questions.103 Defense counsel objected that the limitation would violate appellant’s rights

to due process and effective assistance of counsel under the Fifth, Sixth, and Fourteenth

Amendments and his right to be free from cruel and unusual punishment under the Eighth

Amendment.

The trial judge observed that it was generally permissible to draw an inference from

a witness’s absence when that witness would normally be expected to testify, and he deferred

ruling on the State’s motion in limine until the next day. The following morning, he

continued:

The law and argument is that if a witness is not called that is identified with

either side, the other side can comment on the failure to call that witness. . . .

For instance, if there were a witness identified with a victim that saw some of

this happen at the residence and the State didn’t call that witness, that would

be fair game.

However, in this case we’re talking about an expert that was never hired, is not

identified, and did not do anything, does not exist, which I believe would be

outside the record of this case. Therefore, I am going to require the attorneys

to stick to what is in the evidence for their final argument and the reasonable

deductions therefrom, and I am going to bar any comment on the State’s

failure to hire and call an expert witness and ask questions through that witness

of the defendant.104

I believe that would be a perilous door to open because a comment by the

Defense in argument would invite a reply from the State.

103

But see note 94, ante.

104

The State notes in its brief that a trial judge’s grant or denial of a motion in limine

normally preserves nothing for appellate review. See Geuder v. State, 115 S.W.3d 11, 14-15

(Tex. Crim. App. 2003). In this case however, the trial judge made a specific adverse ruling that

the defense was barred from commenting on the State’s failure to hire an expert to evaluate

appellant. See id. at 14.

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Then you get into the danger of whether that reply oversteps the bounds, and

I can see this thing spiraling out of control and comments on the Fifth

Amendment right to remain silent being made or invited, neither of which

would be good.

So I am going to require that the attorneys stick within the record and the

reasonable deductions therefrom.

That is my ruling on the limine by the State that was brought to us last night.

The trial court added that the defense could still argue that the State never called any expert

to testify about appellant’s mental condition.

A party is generally allowed to comment on an opposing party’s failure to call a

witness who would be expected to testify.105 “A party may always comment on the fact that

the opponent failed to call an available witness and then argue ‘Don’t you know, if Mr. X had

anything favorable to say, my opponent would have called him.’”106 On the other hand, a

party is generally prevented from creating a witness and speculating about what he would

say.107

105

See, e.g., Mosley v. State, 686 S.W.2d 180, 182-84 (Tex. Crim. App. 1985)

(prosecutor may comment on defendant’s failure to call any witnesses at all or some particular

known witness who is competent to give material testimony on the matter of defendant’s

reputation); Lyles v. State, 582 S.W.2d 138, 143 (Tex. Crim. App. 1979) (permissible to

comment that defendant did not call a known, available witness who was present when defendant

was arrested).

106

Pope v. State, 207 S.W.3d 352, 365 (Tex. Crim. App. 2006); see also Fisher v. State,

511 S.W.2d 506, 507-08 (Tex. Crim. App. 1974) (prosecutor may not relate his version of the

missing witness’s testimony, but his argument may include an inference that the testimony would

have been material and damaging).

107

See McKenzie v. State, 617 S.W.2d 211, 220-21 (Tex. Crim. App. 1981) (without

evidence that defendant had gone to college or attended a local church, prosecutor should not

(continued...)

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We reject appellant’s position that the State’s cross-examination of Saunders left the

impression that appellant’s mental health evidence was somehow withheld or manipulated.

Further, appellant was allowed to argue that the State would have called an expert to testify

about appellant’s mental condition if the State had seriously disputed Saunders’s opinion.

This permitted jury argument was very similar to the argument that appellant was prevented

from making. We decline to find reversible error when a trial court sustains an objection to

defendant’s jury argument but later allows a similar argument.108 Point of error fourteen is

overruled.

In point of error twelve, appellant asserts that the trial court erred when it refused to

include a written instruction in the guilt-phase jury charge regarding Dr. Carlo, the

psychiatrist who treated appellant at the VA hospital over Labor Day weekend of 2007.

Appellant wanted the jury instructed that he could not ask Carlo certain questions because

federal regulations prevented him from testifying about any matter for which he did not treat

appellant. Although the trial court orally explained this to the jury during Carlo’s testimony,

it declined to give a written instruction to this effect. Appellant complains that the oral

instruction was insufficient and that it did not explain that the federal government, rather than

the trial court, placed the limitation on Carlo’s testimony. Appellant claims that the jury

107

(...continued)

have speculated about defendant’s failure to call an old college classmate or a minister from

church, and the things that such witnesses should be expected to say, as if they actually existed).

108

See, e.g., Davis, 329 S.W.3d at 825.

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could have mistakenly concluded that appellant did not ask Carlo whether, in his opinion,

appellant suffered from PTSD because he feared the answer would be harmful to the defense,

or that Carlo was not competent to testify about the matter. Thus, appellant contends, he was

deprived of due process of law as guaranteed by the Fifth and Fourteenth Amendments to the

United States Constitution.

The court and parties discussed the limitations on Carlo’s testimony and how to

address them on several occasions throughout the trial. Initially, during a conference outside

the jury’s presence, defense counsel stated that a federal regulation prevented a federal

employee from being subpoenaed as an expert witness in a matter not involving the United

States as a party. However, defense coun

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