Johnson, Matthew Lee

COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS

Transmitted 12/29/2014 9:08:43 PM

Accepted 1/13/2015 9:18:15 AM

January 13, 2015 ORAL ARGUMENT IS REQUESTED ABEL ACOSTA

CLERK

No. AP-77,030

IN THE

COURT OF CRIMINAL APPEALS

OF TEXAS

MATTHEW LEE JOHNSON,

APPELLANT

V.

THE STATE OF TEXAS,

APPELLEE

On appeal from the 363rd Judicial District Court of Dallas County, Texas

In Cause No. F12-23749

STATE’S BRIEF

Counsel of Record:

Craig Watkins Christine Womble

Criminal District Attorney Assistant District Attorney

Dallas County, Texas State Bar No. 24035991

Frank Crowley Courts Building

133 N. Riverfront Blvd., LB-19

Dallas, Texas 75207-4399

(214) 653-3625

(214) 653-3643 fax

CWomble@dallascounty.org

Attorneys for the State of Texas

TABLE OF CONTENTS

Index of Authorities ................................................................................................... v

Statement Regarding Oral Argument ....................................................................... 1

Statement of the Case ................................................................................................ 1

Statement of Facts ...................................................................................................... 1

Summary of the Arguments ..................................................................................... 47

Argument ................................................................................................................. 50

State’s Response to Issue Nos. 1 through 7: ............................................................ 50

THE TRIAL COURT DID NOT ERR IN DENYING APPELLANT’S BATSON

CHALLENGES.

State’s Response to Issue Nos. 8 through 19: .......................................................... 71

THE TRIAL COURT DID NOT ERR IN GRANTING THE STATE’S CHALLENGES

FOR CAUSE.

State’s Response to Issue Nos. 20 through 27: ........................................................ 86

THE TRIAL COURT DID NOT ERR IN DENYING APPELLANT’S CHALLENGES

FOR CAUSE.

State’s Response to Issue Nos. 28 through 30: ...................................................... 113

THE TRIAL COURT DID NOT ERR IN GRANTING THE STATE’S CHALLENGES

FOR CAUSE.

State’s Response to Issue Nos. 31 and 32: ............................................................ 119

APPELLANT WAS NOT DEPRIVED OF A LAWFULLY CONSTITUTED JURY.

ii

State’s Response to Issue No. 33: .......................................................................... 120

THE EVIDENCE IS LEGALLY SUFFICIENT TO SUPPORT APPELLANT’S

CONVICTION FOR CAPITAL MURDER.

State’s Response to Issue Nos. 34 and 35: ............................................................ 126

THE TRIAL COURT PROPERLY ADMITTED THE SURVEILLANCE VIDEO OF THE

INSTANT OFFENSE AS WELL AS STILL PHOTOGRAPHS FROM THAT VIDEO.

ALTERNATIVELY, ANY ERROR IS HARMLESS.

State’s Response to Issue Nos. 36 and 37: ............................................................ 137

THE TRIAL COURT PROPERLY ADMITTED THE AUTOPSY PHOTOGRAPHS AND

THE PHOTOGRAPHS OF THE COMPLAINANT IN THE HOSPITAL.

ALTERNATIVELY, ANY ERROR IS HARMLESS.

State’s Response to Issue Nos. 38 through 40: ...................................................... 143

THE TRIAL COURT PROPERLY ADMITTED EVIDENCE OF STATEMENTS MADE

BY THE COMPLAINANT PRIOR TO HER DEATH.

State’s Response to Issue No. 41: .......................................................................... 153

THE TRIAL COURT PROPERLY ADMITTED EVIDENCE OF APPELLANT’S

ACTIONS AFTER HE FLED THE WHIP-IN.

State’s Response to Issue No. 42: .......................................................................... 157

THE TRIAL COURT PROPERLY INSTRUCTED THE JURY ON VOLUNTARY

INTOXICATION.

State’s Response to Issue Nos. 43 and 44: ............................................................ 160

THE TRIAL COURT PROPERLY ADMITTED EVIDENCE DURING THE

PUNISHMENT PHASE OF APPELLANT’S EXTRANEOUS OFFENSES.

iii

State’s Response to Issue Nos. 45 through 48: ...................................................... 165

THE TRIAL COURT PROPERLY ADMITTED EVIDENCE OF APPELLANT’S

ARRESTS AND CERTAIN JUDGMENTS AND SENTENCES.

State’s Response to Issue No. 49: .......................................................................... 170

THE TRIAL COURT PROPERLY ADMITTED THE TESTIMONY OF WARDEN

MELODYE NELSON.

State’s Response to Issue No. 50: .......................................................................... 173

THE EVIDENCE IS LEGALLY SUFFICIENT TO SUPPORT THE JURY’S FINDING

THAT APPELLANT IS A FUTURE DANGER.

State’s Response to Issue Nos. 51 through 53: ...................................................... 178

THE TRIAL COURT PROPERLY DENIED APPELLANT’S REQUESTED JURY

INSTRUCTIONS AND OVERRULED HIS OBJECTIONS TO THE CHARGE.

State’s Response to Issue Nos. 54 through 65: ...................................................... 183

THE TRIAL COURT PROPERLY DENIED APPELLANT’S CHALLENGES TO THE

DEATH PENALTY STATUTE.

Prayer .....................................................................................................................187

Certificate of Compliance ......................................................................................187

Certificate of Service .............................................................................................188

iv

INDEX OF AUTHORITIES

Cases

Apolinar v. State,

106 S.W.3d 407 (Tex. App.—Houston [1st Dist.] 2003) aff’d, 155 S.W.3d 184

(Tex. Crim. App. 2005) ............................................................................. 162, 164

Apprendi v. New Jersey,

530 U.S. 466 (2000) ...........................................................................................184

Archer v. State,

607 S.W.2d 539 (Tex. Crim. App. 1980) ...........................................................155

Barnes v. State,

855 S.W.2d 173 (Tex. App.—Houston [14th Dist.] 1993, pet. ref'd) ..................55

Barfield v. State,

63 S.W.3d 446 (Tex. Crim. App. 2001) .............................................................124

Batson v. Kentucky,

476 U.S. 79 (1986) ....................................................................................... passim

Beltran v. State,

593 S.W.2d 688 (Tex. Crim. App. 1980) ...........................................................124

Blue v. State,

125 S.W.3d 491 (Tex. Crim. App. 2003) ...........................................................181

Bodde v. State,

568 S.W.2d 344 (Tex. Crim. App. 1978) ...........................................................118

Bone v. State,

77 S.W.3d 828 (Tex. Crim. App. 2002) ...............................................................63

Brooks v. State,

323 S.W.3d 893 (Tex. Crim. App. 2010) ...........................................................121

v

Camacho v. State,

864 S.W.2d 524 (Tex. Crim. App. 1993) ...........................................................155

Cantu v. State,

939 S.W.2d 627 (Tex. Crim. App. 1997) .................................................. 180, 182

Chamberlain v. State,

998 S.W.2d 230 (Tex. Crim. App. 1999) ...........................................................129

Chambers v. State,

866 S.W.2d 9 (Tex. Crim. App. 1993) .................................................................53

Colburn v. State,

966 S.W.2d 511 (Tex. Crim. App. 1998) ........................................ 78, 81, 88, 117

Coleman v. State,

881 S.W.2d 344 (Tex. Crim. App. 1994) .................................................... 98, 103

Cook v. State,

858 S.W.2d 467 (Tex. Crim. App. 1993) .............................................................56

Cooper v. State,

67 S.W.3d 221 (Tex. Crim. App. 2002) .............................................................121

Cordova v. State,

733 S.W.2d 175 (Tex. Crim. App. 1987) ...........................................................103

Davis v. State,

329 S.W.3d 798 (Tex. Crim. App. 2010) ...........................................................179

Davis v. Washington,

547 U.S. 813 (2006) ...........................................................................................150

Devoe v. State,

354 S.W.3d 457 (Tex. Crim. App. 2011) ...........................................................154

Duffy v. State,

567 S.W.2d 197 (Tex. Crim. App. 1978) .................................................. 181, 182

vi

Emery v. State,

881 S.W.2d 702 (Tex. Crim. App. 1994) ...........................................................128

Escamilla v. State,

143 S.W.3d 814 (Tex. Crim. App. 2004) ............................................ 89, 140, 186

Espada v. State,

No. AP-75,219, 2008 Tex. Crim. App. Unpub. LEXIS 806 (Tex. Crim. App.

2008) (not designated for publication) ...................................................... 181, 182

Estrada v. State,

313 S.W.3d 274 (Tex. Crim. App. 2010) .................................................. 171, 180

Feldman v. State,

71 S.W.3d 738 (Tex. Crim. App. 2002) ....................................................... passim

Flowers v. State,

220 S.W.3d 919 (Tex. Crim. App. 2007) .................................................. 168, 169

Furman v. Georgia,

408 U.S. 238 (1972) ...........................................................................................185

Gallo v. State,

239 S.W.3d 757 (Tex. Crim. App. 2007) ...........................................................171

Garcia v. State,

887 S.W.2d 862 (Tex. Crim. App. 1994) ...........................................................149

Gardner v. State,

306 S.W.3d 274 (Tex. Crim. App. 2009) ..................................................... passim

Gonzales v. State,

353 S.W.3d 826 (Tex. Crim. App. 2011) .................................................... 72, 113

Gordon v. State,

784 S.W.2d 410 (Tex. Crim. App. 1990) .................................................. 130, 131

Granados v. State,

85 S.W.3d 217 (Tex. Crim. App. 2002) .............................................. 85, 117, 119

vii

Gray v. State,

233 S.W.3d 295 (Tex. Crim. App. 2007) ...........................................................120

Green v. State,

912 S.W.2d 189 (Tex. Crim. App. 1995) ...........................................................181

Griffith v. State,

983 S.W.2d 282 (Tex. Crim. App. 1998) ...........................................................171

Hernandez v. New York,

500 U.S. 352 (1991) .............................................................................................61

Hernandez v. State,

176 S.W.3d 821 (Tex. Crim. App. 2005) ...........................................................163

Hernandez v. State,

563 S.W.2d 947 (Tex. Crim. App. 1978) .............................................................91

Hooper v. State,

214 S.W.3d 9 (Tex. Crim. App. 2007) ......................................................... 121-22

Jackson v. State,

33 S.W.3d 828 (Tex. Crim. App. 2000) .............................................................181

Jackson v. State,

992 S.W.2d 469 (Tex. Crim. App. 1999) ...........................................................181

Jackson v. Virginia,

443 U.S. 307 (1979) ...........................................................................................121

Jones v. State,

982 S.W.2d 386 (Tex. Crim. App. 1998) ..................................................... passim

Jordan v. State,

928 S.W.2d 550 (Tex. Crim. App. 1996) ...........................................................171

King v. State,

29 S.W.3d 556 (Tex. Crim. App. 2000) .......................................... 74, 78, 81, 121

viii

King v. State,

953 S.W.2d 266 (Tex. Crim. App. 1997) ...........................................................135

Ladd v. State,

3 S.W.3d 547 (Tex. Crim. App. 1999) ........................................ 98, 129, 141, 173

Lane v. State,

933 S.W.2d 504 (Tex. Crim. App. 1996) ...........................................................165

Lane v. State,

822 S.W.2d 35 (Tex. Crim. App. 1991) ................................................ 91, 93, 112

Leza v. State,

351 S.W.3d 344 (Tex. Crim. App. 2011) ...........................................................182

Long v. State,

823 S.W.2d 259 (Tex. Crim. App. 1991) ...........................................................142

Luna v. State,

301 S.W.3d 322 (Tex. App.—Waco 2009, no pet.) ...........................................162

Martinez v. State,

327 S.W.3d 727 (Tex. Crim. App. 2010) ...........................................................174

Mason v. State,

905 S.W.2d 570 (Tex. Crim. App. 1995) ...........................................................114

Matamoros v. State,

901 S.W.2d 470 (Tex. Crim. App. 1995) .................................................. 132, 134

Matchett v. State,

941 S.W.2d 922 (Tex. Crim. App. 1997) ...........................................................181

Mathis v. State,

67 S.W.3d 918 (Tex. Crim. App. 2002) ...............................................................54

Medellin v. Dretke,

378 F.3d 270 (5th Cir. 2004) ................................................................................59

ix

Middleton v. State,

187 S.W.3d 134 (Tex. App.—Texarkana 2006, no pet.) .....................................55

Miller-El v. Dretke,

545 U.S. 231 (2005) ................................................................................ 58, 63, 70

Montgomery v. State,

810 S.W.2d 372 (Tex. Crim. App. 1990) ...........................................................129

Morales v. State,

32 S.W.3d 862 (Tex. Crim. App. 2000) .............................................................135

Moses v. State,

105 S.W.3d 622 (Tex. Crim. App. 2003) ...........................................................154

Mosley v. State,

983 S.W.2d 249 (Tex. Crim. App. 1998) .................................................. 180, 183

Munoz v. State,

853 S.W.2d 558 (Tex. Crim. App. 1993) ...........................................................124

Narvaiz v. State,

840 S.W.2d 415 (Tex. Crim. App. 1992) ...........................................................181

Nieto v. State,

365 S.W.3d 673 (Tex. Crim. App. 2012) .............................................................57

Paredes v. State,

129 S.W.3d 530 (Tex. Crim. App. 2004) ...........................................................128

Patrick v. State,

906 S.W.2d 481 (Tex. Crim. App. 1995) .................................................. 124, 125

Paulson v. State,

28 S.W.3d 570 (Tex. Crim. App. 2001) .............................................................181

Pena v. State,

285 S.W.3d 459 (Tex. Crim. App. 2009) .............................................................79

x

Purkett v. Elem,

514 U.S. 765 (1995) .............................................................................................53

Raby v. State,

970 S.W.2d 1 (Tex. Crim. App. 1998) ...............................................................183

Rachal v. State,

917 S.W.2d 799 (Tex. Crim. App. 1996) .............................................................78

Reed v. Quarterman,

555 F.3d 364 (5th Cir. 2009) ......................................................................... 51, 62

Reese v. State,

33 S.W.3d 238 (Tex. Crim. App. 2000) .............................................................177

Renteria v. State,

206 S.W.3d 689 (Tex. Crim. App. 2006) ...........................................................181

Rhoades v. State,

934 S.W.2d 113 (Tex. Crim. App. 1996) ...........................................................182

Roberts v. State,

220 S.W.3d 521 (Tex. Crim. App. 2007) ...........................................................180

Robertson v. State,

871 S.W.2d 701 (Tex. Crim. App. 1993) ...........................................................182

Rocha v. State,

16 S.W.3d 1 (Tex. Crim. App. 2000) .................................................................179

Roethel v. State,

80 S.W.3d 276 (Tex. App.—Austin 2002, no pet.) ...........................................162

Rojas v. State,

986 S.W.2d 241 (Tex. Crim. App. 1998) .................................................. 140, 142

Romero v. State,

800 S.W.2d 539 (Tex. Crim. App. 1990) ...........................................................128

xi

Russeau v. State,

291 S.W.3d 426 (Tex. Crim. App. 2009) .................................................. 181, 182

Sadler v. State,

977 S.W.2d 140 (Tex. Crim. App. 1998) .............................................................72

Salazar v. State,

38 S.W.3d 141 (Tex. Crim. App. 2001) .............................................................148

Saldano v. State,

232 S.W.3d 77 (Tex. Crim. App. 2007) ....................................................... passim

Sakil v. State,

287 S.W.3d 23 (Tex. Crim. App. 2009) .................................................... 158, 159

Santellan v. State,

939 S.W.2d 155 (Tex. Crim. App. 1997) ...........................................................139

Segundo v. State,

270 S.W.3d 79 (Tex. Crim. App. 2008) ...............................................................85

Simpson v. State,

119 S.W.3d 262 (Tex. Crim. App. 2003) ...................................................... 82, 85

Soliz v. State,

432 S.W.3d 895 (Tex. Crim. App. 2014) ...........................................................182

Templin v. State,

711 S.W.2d 30 (Tex. Crim. App. 1986) .............................................................164

Thuesen v. State,

No. AP-76,375, 2014 Tex. Crim. App. Unpub. LEXIS 191 (Tex. Crim. App. Feb

26, 2014) (not designated for publication) .........................................................182

Threadgill v. State,

146 S.W.3d 654 (Tex. Crim. App. 2004) ........................................ 72, 87, 88, 172

United States v. Figueroa,

618 F.2d 934 (2nd Cir. 1980) .............................................................................129

xii

Vinson v. State,

252 S.W.3d 336 (Tex. Crim. App. 2008) ...........................................................150

Walder v. State,

85 S.W.3d 824 (Tex. App.—Waco 2002, no pet.) .............................................155

Watkins v. State,

245 S.W.3d 444 (Tex. Crim. App. 2008) ..................................................... passim

Weatherred v. State,

15 S.W.3d 540 (Tex. Crim. App. 2000) ....................................................... passim

Wells v. State,

578 S.W.2d 118 (Tex. Crim. App. 1979) ...........................................................156

Wesbrook v. State,

29 S.W.3d 103 (Tex. Crim. App. 2000) .................................................... 155, 158

Williams v. State,

958 S.W.2d 186 (Tex. Crim. App. 1997) ...........................................................152

Witherspoon v. Illinois,

391 U.S. 510 (1968) .............................................................................................78

Wood v. State,

18 S.W.3d 642 (Tex. Crim. App. 2000) .............................................................180

Woodward v. Epps,

580 F.3d 318 (5th Cir. 2009) ................................................................................59

Young v. State,

826 S.W.2d 141 (Tex. Crim. App. 1991) .............................................................62

Zuliani v. State,

97 S.W.3d 589 (Tex. Crim. App. 2003) .................................................... 148, 151

Constitutional Provisions

Tex. Const. art. I...................................................................................... 71, 184, 186

xiii

U.S. Const. amend. VI ............................................................................................71

U.S. Const. amend. XIV .........................................................................................71

Statutes

Tex. Code Crim. Proc. Ann. art. 35.16 (West 2006) ...................................... 71, 119

Tex. Code Crim. Proc. Ann. art. 35.16 (a)(9) ................................................... 87, 91

Tex. Code Crim. Proc. Ann. art. 35.16 (c)(2) ........................................... 86, 87, 101

Tex. Code Crim. Proc. Ann. art. 35.17, § 2 ...................................................... 75, 79

Tex. Code Crim. Proc. Ann. art. 35.261(a) (West 2006). ........................................51

Tex. Code Crim. Proc. Ann. art. 37.07, § 3(g) ............................. 161, 162, 163, 164

Tex. Code Crim. Proc. Ann. art. 37.071, § 2(a)(1) ................................................161

Tex. Code Crim. Proc. Ann. art. 37.071, § 2(b)(1) ................................................173

Tex. Code Crim. Proc. Ann. art. 37.071, § 2(c)............................................ 101, 173

Tex. Code Crim. Proc. Ann. art. 37.071 § 2(d)(1) .................................................173

Tex. Code Crim. Proc. Ann. art. 37.071, § 2(e-f) ................................. 182, 184, 185

Tex. Penal Code Ann. § 8.04(a) .................................................................... 158, 159

Tex. Penal Code Ann. § 19.03 ........................................................................ 78, 121

Tex. Penal Code Ann. § 29.02(a)...........................................................................121

Tex. Penal Code Ann. § 31.03(a)...........................................................................121

xiv

Rules

Tex. R. App. P. 33.1(a) ................................................. 61, 76, 79, 94, 113, 155, 168

Tex. R. App. P. 38.1(h) ......................................................................... 149, 155, 179

Tex. R. App. P. 44.2(b) ............................................................. 82, 85, 135, 143, 172

Tex. R. Evid. 201 .....................................................................................................58

Tex. R. Evid. 403 .................................................. 128, 129, 134, 137, 138, 140, 142

Tex. R. Evid. 404(b).............................................................................. 153, 154, 161

Tex. R. Evid. 702 ...................................................................................................170

Tex. R. Evid. 801(c) ...............................................................................................147

Tex. R. Evid. 801(d)...............................................................................................147

Tex. R. Evid. 803(2).............................................................................. 147, 148, 149

Tex. R. Evid. 804(b)(2) ................................................................................. 148, 150

Tex. R. Evid. 1001(b).............................................................................................128

xv

TO THE HONORABLE COURT OF CRIMINAL APPEALS:

The State of Texas submits this brief in response to the brief of Appellant,

Matthew Lee Johnson.

STATEMENT REGARDING ORAL ARGUMENT

The State requests the opportunity to present oral argument if the Court

grants Appellant’s request to argue.

STATEMENT OF THE CASE

This is an automatic appeal from a sentence of death. See Tex. Code Crim.

Proc. Ann. art. 37.071, § 2(h). The trial court sentenced Appellant to death on

November 8, 2013 for the capital murder of Nancy Harris. Appellant filed his

brief on direct appeal on August 1, 2014. He filed an amended brief on August 21,

2014. He presents sixty-five allegations of reversible error.

STATEMENT OF FACTS

Guilt/Innocence

The Offense

On May 20, 2012, 76-year-old great-grandmother Nancy Judith Harris went

to her job as a clerk at the Fina Whip-In (hereinafter, “the Whip-In”) convenience

store. (RR44:23; RR46:10; SX#2, 25). At 7:071 a.m., Appellant entered the store

1

The surveillance video is time stamped 6:07 a.m. (RR44:49; SX#17). Anna Lunceford, the

manager of the Whip-In, testified that the time was off by one hour; at the time she had not

1

carrying a lighter and a clear plastic bottle filled with lighter fluid. (RR44:50, 230;

SX#17, 79, 83, 85). Once inside, Appellant walked straight to the sales counter,

then around and behind and into the area reserved for employees. (RR44:43;

SX#17). Nancy was standing behind the counter. (SX#17). She tried to push

Appellant back. (SX#17). Appellant poured the contents of the plastic bottle over

Nancy’s head. (SX#17).

Appellant stood behind Nancy and watched as she tried to open the cash

register. (SX#17). He took two lighters from a display to the right of the register.

(RR44:231; SX#17, 85). Then, he took two packages of cigarettes from an

overhead dispenser. (RR44:231; SX#17, 87, 88). He tried to remove Nancy’s

ring from her right finger. (RR44:231; SX#17, 89, 90). The ring did not come

off easily; Appellant licked his fingers to help slide it off. (RR44:232; SX#17, 90,

91). Nancy finally got the register open2 and Appellant took all of the cash from

the cash tray. (RR44:232; SX#17, 96, 97). Then, he removed the cash tray out of

the drawer and took some of the coins. (SX#17).

Almost immediately after Appellant took the money from the register,

flames are reflected on the screen above the cash register. (RR44:232; SX#17, 97).

realized she would have to manually change the time following the time change. (RR44:35, 49-

50; SX#17).

2

Nancy opened the register for a no sale transaction at 7:10:54 a.m. (RR44:54, 128-29; SX#19,

20).

2

Nancy, engulfed in flames from her shoulders up, ran out from behind the counter.

(RR44:233; SX#17, 98). Appellant followed close behind. (RR44:233; SX#17).

Nancy ran to a nearby sink and leaned over to put out the flames. (SX#17).

Appellant calmly walked out of the store with his bottle, stopping only to take a

few pieces of candy and stuff them in his pocket. (RR44:233-34; SX#17, 98, 99,

100).

Nancy bent over the sink, trying to put out the flames consuming the upper

portion of her body. (SX#17). She stopped to pull her shirt over her head and

dropped it on the floor. (SX#17). As Nancy leaned back over the sink, her shirt,

which was still burning on the floor, lit her left leg on fire. (SX#17). Unable to

put out all of the flames, Nancy, still on fire, walked outside and waited for help.

(SX#17).

On the morning of the offense, Garland Police Officers Billy Coffey and

Simon were dispatched to “the 3300 block of Broadway at the Soulman’s Bar-B-

Que and also at the plasma center.” (RR44:62, 64). Police had received calls

regarding an audible alarm. (RR44:62). When the officers arrived at the plasma

center, they found the area secure. (RR44:64). They got back into their squad

cars and began to proceed to Soulman’s when Simon noticed flames across the

street inside the Whip-In. (RR44:62, 65-66; SX#24). Concerned, the officers

made their way to the Whip-In. (RR44:66). At that point, they had no idea what

3

was on fire. (RR44:83). Coffey was at the red light, waiting to turn into the Whip-

In, when he saw “the flames move across the inside of the building.” (RR44:66).

Now, it was an emergency situation. (RR44:84). Coffey turned on his lights and

sirens and hurried into the parking lot. (RR44:66).

By the time the officers pulled into the parking lot, Nancy was standing

outside. (RR44:84; SX#17). She was still on fire. (RR44:68; SX#17). Coffey

retrieved a fire extinguisher from the trunk of his patrol vehicle, ran up, and

extinguished the remaining flames. (RR44:68, 84-85; SX#17). Nancy was

“screaming for help.” (RR44:69). She told the officers that a man had robbed her

and poured something on her. (RR44:69). She gave a description of the robber:

a “heavy-set black male with blue jeans . . . and a T-shirt.” (RR44:70).

Garland firefighter and paramedic William Crews was in the area on an

unrelated call when a police officer flagged him down for help. (RR44:89, 92).

Crews pulled up to the Whip-In in the ambulance and began to treat Nancy.

(RR44:93). “She was in a lot of pain. She was very worried.” (RR44:93). She

had “first, second, and third degree burns to her face, her shoulders, her abdomen,

both of her upper arms, and to her - - her legs.” (RR44:93). Crews loaded Nancy

into the ambulance and left for the hospital.3 (RR44:94). At first, Nancy was

3

Crews was familiar with Nancy. He had “made runs on her before” and was aware of her

diabetes, high blood pressure and the fact that she had a pacemaker. (RR44:94, 97, 102). He

and his fellow firefighters also patronized the Whip-In. (RR44:94, 101-02).

4

conscious and able to provide her name and history. (RR44:98). As they drove,

her airway began to close and she had a harder time communicating. (RR44:98).

At the hospital, Nancy was still conscious and able to speak. (RR45:80-81).

April Gradel, a trauma nurse clinician in the burn unit, gave police a few minutes

to speak with Nancy. (RR45:85, 172, 178; SX#143). Nancy had “at minimum

second to third-degree burns over her entire head, including her face, her neck, her

upper torso, and both of her arms.” (RR45:174). Given the location of Nancy’s

burns, Gradel knew that she was going to have to be intubated. (RR45:175).

Gradel saw a police officer in the hallway and told him that if he was going to

speak with Nancy, it had to be immediately. (RR45:175). Gradel was “quite

convinced it would be [Nancy’s last opportunity to speak].” (RR45:176). Nancy

told Officer Larry Wilson that “a man she described as a black male, heavy-set,

short dark hair, and a chubby face, came into the store and demanded money from

her. She advised he took the money and then he poured something on her. She

didn’t know what - - what it was, and then he lit her on fire.” (RR45:82).

Dr. John Hunt was also involved in Nancy’s care in the Burn Unit.

(RR46:5). Dr. Hunt testified when an individual is on fire, the mechanism of

injury is the heat. (RR46:7). “Heat destroys.” (RR46:7). Dr. Hunt described the

three types of burns:

The way I usually tell it to family is if the skin is an inch thick, a

sunburn is a first-degree burn, and let’s say hypothetically that’s 1/16th

5

of an inch. So you’ve got, you know, 15/16ths of an inch left, and

that’s not injured and it heals very quickly. A third-degree burn goes

through that entire inch of skin. Now, the skin is not an inch thick,

but just vision [sic] it as it would be. When that inch of skin is

destroyed, that is a third-degree burn. By definition, it destroys any

potential for that area that’s third-degree to heal on its own. So a

second-degree is anyplace between that sunburn which is 1/16th and

that total inch, which is third-degree, in between. So potentially

second-degree burns will heal, depends on how deep they are and how

long it takes. But the skin elements are there in a second-degree burn,

and potentially it will heal. A third-degree, it will not.

(RR46:8-9). There is also a fourth-degree burn. (RR46:17). This type of burn

does not stop at the underside of the skin; it goes all the way through the skin into

the fat. (RR46:17).

Dr. Hunt testified that Nancy had burns over 40% of her body. (RR46:10).

The burns to Nancy’s upper body and face were third and fourth-degree burns.

(RR46:18; SX#146). The burns to her left arm and hand were second and third-

degree burns. (RR46; SX#147). The burns to her right shoulder and breast were

third and fourth-degree. (RR46:19; SX#148). The lower portion of her right arm

and hand were second and third-degree burns. (RR46:19; SX#148). The burns to

the top of her head were third-degree. (RR46:19-20; SX#149).

Because Nancy’s injuries were to her face and neck, she was intubated and

placed on a ventilator. (RR46:11). Her face was swollen and her eyes were shut.

(RR46:14). She was able, however, to nod her head and gesture with her hands.

(RR46:14).

6

Nancy’s treatment team determined that Nancy was not going to survive her

injuries and that treatment would be futile. (RR44:31; RR46:23). Prior to the

instant offense, Nancy executed a DNR, a do-not-resuscitate order.4 (RR44:30-31;

SX#8). On May 25, 2012, given the severity and the extent of Nancy’s injuries

and in accordance with her DNR, the decision was made to discontinue life

support, and Nancy passed away. (RR46:23-24).

Dr. Tracy Dyer, a medical examiner with the Dallas County Medical

Examiner’s Office, performed Nancy’s autopsy. (RR46:25, 29-30; SX#9, 151-59).

During the autopsy, Dr. Dyer observed “significant serious burns that involved her

entire head, chest, portions of the upper back, and portions of, I believe, it was the

left lower extremity or left thigh and leg.” (RR46:32). Her hands and palms were

completely burned, destroying Nancy’s fingerprints. (RR46:32). On the back of

her left hand, there were “some areas of skin slippage”; the thermal injuries caused

loosening under the layers of Nancy’s skin, causing it to peel off. (RR46:36;

SX#155, 156). Nancy’s right hand was more severely affected. (RR46:37). On

that hand, “the superficial layers of the skin are gone, and what you have is that

reddened deep tissue in this case, underneath.” (RR46:37; SX#157). Dr. Dyer

observed skin slippage on Nancy’s left leg and thighs. (RR46:37; SX#158).

4

Nancy’s DNR is dated May 17, 2002. (SX#8).

7

Nancy’s injuries were consistent with flame burns. (RR46:38). Fire was a

deadly weapon in this case. (RR46:38). The cause of Nancy’s death was thermal

injury. (RR46:34, 39). The manner of her death was homicide. (RR46:39).

Appellant’s Capture

Shortly after police arrived at the Whip-In that morning, calls started coming

in about a man hiding in the alleyways and between the homes in the neighborhood

directly behind the store. (RR44:70, 86). That person matched Nancy’s

description. (RR44:70-71, 86). Officers set up a perimeter around the

neighborhood behind the Whip-In. (RR44:71). Officer Rafael Perez participated

in the search. (RR44:178). In the alley behind Mt. Vernon Street, he noticed a

“heavy-set black male, no shirt, with dark pants” matching the suspect’s

description. (RR44:181-82). Perez identified Appellant as the man he saw in the

alley. (RR44:182-83). When Appellant saw Perez, he took off running.

(RR44:182-83). Perez lost sight of him briefly, but then he saw Appellant’s leg

sticking out from under a bush. (RR44:184-85). “He was laid back, kind of

leaning against the wall with one leg out.” (RR44:185). Perez drew his weapon

and instructed Appellant to come out from the bushes and get on the ground.

(RR44:185-86). Coffey arrived and they placed Appellant in handcuffs.

(RR44:186). Appellant asked the officers, “What took you so long[?] Y’all are

getting slow.” (RR44:186). Appellant was arrested and searched before he was

8

placed in the squad car. (RR44:74). From Appellant’s pockets, Coffey collected a

used lighter, a red lighter, a purple lighter, a gold ring, a car key, coins, and cash.

(RR44:75-78; SX#6, 26, 28-30, 59, 60). Appellant did not appear intoxicated.

(RR44:187).

Coffey transported Appellant to the police station.5 (RR44:74). On the

drive to the station, Appellant tried repeatedly to engage Coffey in conversation.

(RR44:80-81; SX#31). He asked, “What am I being booked for, man?” (SX#31,

1:01). When Coffey advised Appellant was arrested for attempted capital murder,

Appellant asked, “Attempted capital murder of who?” (SX#31, 11:38-1:39).

Appellant continued to try to engage Coffey in conversation. (See SX#31). He

asked if Coffey was a family man. (SX#31, 2:55). He asked whether Coffey was

Coffey or Perez. (SX#31). Coffey did not respond to Appellant’s questions.

Appellant stated, “I can tell you everything, man. I can tell you what you want to

know.” (SX#31, 3:32-3:36). A few minutes later, Appellant told Coffey that he

had been waiting for police. (SX#31, 6:25). He said that the police came “because

I want[ed] you to.” (SX#31, 6:32). Coffey testified that during the transport,

Appellant did not appear intoxicated. (RR44:79, 87). Appellant did not slur his

speech and he did not smell of alcohol. (RR44:79, 87). Appellant appeared “[to

be] coming down from [an] adrenaline rush, maybe fatigued.” (RR44:79-80).

5

A video recording of the transport video was admitted into evidence as State’s Exhibit #31.

(RR44:80-81).

9

Detective Stacy Tooke was the lead detective on the case. (RR44:213-14).

Tooke contacted Appellant at the jail after his arrest. (RR44:219). He requested

and was granted consent to take a sample of Appellant’s DNA. (RR44:219-21;

SX#103). A forensic investigator collected Appellant’s DNA and took

photographs of Appellant’s person. (RR44:221). Tooke interviewed Appellant at

the jail. (RR44:237).

The jury heard testimony from three of the residents from the neighborhood

behind the Whip-In, where Appellant hid after the instant offense. Jim Medley

lives across the alley, behind the Whip-In. (RR44:142-43). On the morning of the

offense, he was at home alone. (RR44:143-44). He heard his dog barking in the

backyard, so he went outside to investigate. (RR44:144). The gate to his rear-

entry driveway was open. (RR44:144). On his way back inside the house,

Medley saw a “black man without a shirt, pushing a bicycle. That was about, oh,

two houses away.” (RR44:148). At the time, it “seemed like a lot of commotion

in the neighborhood.” (RR44:145). Medley saw police cars and could hear

sirens. (RR44:145). He noticed his garbage container had been moved and a pack

of cigarettes in his driveway. (RR44:146; SX#48, 78). Medley is not a smoker.

(RR44:146). He picked them up and put them in the garbage. (RR44:146, 151-

53; SX#50). Inside the garbage can, he found a t-shirt. (RR44:147; SX#77).

10

Ken Marecle was at home with his daughter on the morning of the offense.

(RR44:155-56). At one point, Marecle’s daughter said a man was on their back

porch and was heading for their front door. (RR44:156). Marecle cracked open

the front door. (RR44:157). Appellant was standing on the front porch.

(RR44:159, 166-67; SX#55). Appellant’s “eyes were really wide and big.”

(RR44:169). He did not smell of alcohol. (RR44:168-69). He was wearing pants

and “military style black rim glasses” but he did not have a shirt on. (RR44:162).

Appellant told Marecle he needed help. (RR44:157, 159). Then, he tried to force

his way into Marecle’s home. (RR44:159-60). Marecle used his shoulder to push

Appellant outside into the courtyard. (RR44:160, 169). Appellant started fighting

and flailing his arms. (RR44:161, 169). He pushed Marecle backwards.

(RR44:162). Marecle fell and skinned his arms and knee. (RR44:162, 165;

SX#56). When he stood up, Appellant took the glasses off of Marecle’s face and

fled.6 (RR44:162-63, 170). Marecle and his daughter were later shown a lineup

but neither was able to identify the man they saw that morning. (RR44:210-11).

Lawrence Denson lives on Colonial, near the Whip-In. (RR45:7-8; SX#65).

On the morning of the offense, Denson was in his kitchen when he noticed

“[Appellant], looked like he was trying to get inside my gate on the side of my

house.” (RR45:9). Denson went outside to confront him. (RR45:9, 11).

6

The glasses were found several weeks later in the hedges by a neighbor. (RR44:165-66).

11

Appellant approached Denson “with his arms out, and said, man, I’m in a bad

way.” (RR45:9, 11-12; SX#51-53). Denson told him that “he needed to get his

bad way out of my yard.” (RR45:12). A family friend staying at Denson’s home

came outside. (RR45:12-13). Appellant turned around and ran toward an alley.

(RR45:13-15). Appellant did not appear to be intoxicated. (RR45:16). Denson

picked Appellant out of a lineup. (RR44:210; RR45:18-19; SX#62-63).

The Investigation

On the morning of the offense, Anna Lunceford, Nancy’s manager and

friend, was notified that the panic button had been activated at the Whip-In.

(RR44:35, 38, 44; SX#25). When she arrived at the store, Nancy was not there.

(RR44:44). The police asked Lunceford to retrieve the footage from the

surveillance cameras.7 (RR44:46). Lunceford rewound the DVR and played the

surveillance video for the police. (RR44:45-46; SX#15, 16, 17).

After she reviewed the surveillance video, Arson Investigator Nancy

Carpenter instructed firefighters to look around for the bottle that Appellant was

carrying in the video. (RR44:110-11; RR45:48-49). Firefighter Gary Church went

outside and walked toward the back of the building. (RR44:111, 113-14). He

found a drinking bottle on the ground in the grass. (RR44:111-12; SX#35, 36).

7

Lunceford testified that the Whip-In is equipped with three surveillance cameras. (RR44:39-

40; SX#10-12). The images from the cameras are recorded on a digital video recorder.

(RR44:45).

12

Inside the bottle was a paper towel, “down inside the bottle, kind of in the neck[.]”

(RR45:49; SX#36). The bottle smelled of a petroleum-type product. (RR45:49).

Carpenter collected the plastic bottle. (RR45:50-51; SX#36, 114, 115).

Inside the store, Carpenter pulled back the mat on the floor behind the sales

counter. (RR45:60). Carpenter discovered a liquid pooled beneath and collected

a sample. (RR45:60-62; SX#117, 118, 129). Carpenter transported all of the

evidence she collected to the Armstrong Laboratory, a lab capable of testing

evidence involved in an arson investigation. (RR45:69).

Dr. Kelly Wouters is a chemist with Armstrong Lab. (RR45:106-07;

SX#136). He testified to the results of the chemical testing. (RR45:110, 112, 113;

SX#137, 138). Analysis of the contents of the plastic drinking bottle and Nancy’s

clothing showed “a medium petroleum distillate of the primary recovery, and . . . a

lower level of isopropyl alcohol.” (RR45:113-14; SX#137). A medium

petroleum distillate is “the type of ignitable liquid that we encounter as charcoal

starter fluid or paint thinners - - we call it mineral spirits sometimes[.]”

(RR45:114). Isopropyl alcohol is rubbing alcohol. (RR45:115). Medium

petroleum distillates and isopropyl alcohol are “immiscible”; they do not mix.

(RR45:115). The pooled liquid collected from under the mat behind the sales

counter contained medium petroleum distillate. (RR45:116). Appellant’s t-shirt,

pants, belt, left shoe and sock, and his right shoe also contained medium petroleum

13

distillate. (RR45:116-17; SX#138). Neither the pooled liquid nor Appellant’s

clothes and shoes contained isopropyl alcohol. (RR45:116-17). No ignitable

liquids were detected on the swabs of Appellant’s hands. (RR45:116).

Dr. Wouters testified that the liquid contained in SX#60, the cigarette

lighter, was “probably butane[,]” which is not a medium petroleum distillate.

(RR45:118). The same is true for the liquid contained in SX#59, the other

cigarette lighter. (RR45:119).

The plastic drinking bottle was swabbed for a DNA sample. (RR45:128-

30; SX#160-164). Appellant’s DNA was found on the swab of the exterior of the

plastic bottle. (RR45:154; SX#142). He was also included as a possible

contributor of a DNA profile from the interior and exterior opening of the bottle.

(RR45:155; SX#142). Appellant was included as a possible contributor of a low

level sample of DNA from the cash drawer. (RR45:156; SX#142). The swab

from the cash drawer was not a very strong match to Appellant. (RR45:160). A

partial DNA profile from the cigarette package matched Appellant. (RR45:156;

SX#142). No DNA profile was obtained from one of the swabs of the T-shirt, one

of the stains from the counter, or the door handle. (RR45:150, 152; SX#142).

Another stain from the T-shirt was a match to Appellant. (RR45:150; SX#142).

There was also a profile of an unknown male and an unknown female obtained

from that stain. (RR45:150; SX#142). Nancy Harris was excluded as a possible

14

contributor to the unknown female profile. (RR45:153). A sample from a cutting

of the t-shirt was also a match to Appellant. (RR45:153; SX#142). This sample

contained a profile of an unknown female and an unknown female as well.

(RRR45:153-54).

Punishment

The State’s Case-in-Chief

At punishment, the State presented evidence of Appellant’s criminal history

and bad behavior while in prison:

In 1993, Appellant lived with Amy Armstrong Franks and three of her

children. (RR47:35-37). At the time, Appellant was Franks’ boyfriend.

(RR47:36). He was 17 and she was 23. (RR47:38). Appellant was good to

Franks’ children, but over time, he and Franks started fighting. (RR47:37, 39).

Appellant “put his hands on [Franks]” and would grab her and hit her. (RR47:40).

Franks fought back. (RR47:40, 68).

On one occasion, after a fight, Franks left the apartment and went to a

friend’s apartment upstairs. (RR47:41). She left her two-year-old daughter

downstairs. (RR47:41). While Franks was gone, Appellant took Franks’ two-

year-old and left. (RR47:41). He eventually returned, and he and Franks

reconciled. (RR47:42).

15

The last straw for Franks was when, during yet another fight, Appellant hit

Franks while she was holding her daughter. (RR47:42). Her daughter “caught the

back part of his hand.” (RR47:42). When Appellant left, Franks locked him out

and refused to let him back in her apartment. (RR47:42). She called the police

and told them what had happened. (RR47:44). Appellant returned after the police

left but Franks refused to let him in. (RR47:45). She told him that their

relationship was over. (RR47:46). Appellant banged on the door and threatened

to kick it in. (RR47:46). He threatened to beat her behind. (RR47:70, 75).

Franks barricaded the door and blocked the windows with mattresses and a bunk

bed. (RR47:46, 51). She turned off the lights and waited in the hallway with a

gun – Appellant’s gun. (RR47:47, 70). “And then [Appellant] went around and

set my patio on fire.” (RR47:46). Appellant threw something onto the patio,

setting a rug on fire. (RR47:49). Franks saw the flames and went outside.

(RR47:50). She shot at Appellant as he ran away. (RR47:50-51, 73). Then she

put out the fire. (RR47:50-51).

On September 8, 1993, Dallas Police Officer Eric Hagen was dispatched to

Franks’ apartment. (RR47:21). When he arrived, Franks was “extremely agitated

and upset” but would not let Hagen inside. (RR47:22). Hagen walked around to

the back porch of the ground-floor apartment. (RR47:23, 26). He looked over the

16

fence and saw “a burned piece of wood and burned patio carpet.” (RR47:24). It

appeared someone had tried to set the carpet on fire. (RR47:26).

On November 9, 1993, Garland Police Investigator Berry Oliver was on

routine patrol when he saw Appellant walking down the street smoking a joint.

(RR47:101, 104–107). When Appellant saw Oliver, he attempted to conceal the

joint by “stick[ing] it down the back of his neck and then [he] immediately starts

trying to get into the trunk of the car[.]” (RR47:104-05). Oliver stopped Appellant

and patted him down. (RR47:105). He found the joint “between [the] coat and

[the] shirt [Appellant was wearing]” and he found a bag of marijuana inside a

towel that Appellant was carrying. (RR47:105, 107). Oliver arrested Appellant for

possession of marijuana and an outstanding warrant. (RR47:105, 108). Appellant

pleaded guilty and received six months’ probation. (RR47:109-110; SX#167). His

probation was subsequently revoked and he was sentenced to 30 days in jail.

(RR47:110; SX#167).

On July 23, 1994, while on patrol Garland Police Officer Blaine Ralston ran

a routine check of a license plate on a black four-door Cadillac to check for

outstanding warrants. (RR47:116-17). There was an outstanding warrant on the

vehicle, so Ralston attempted to initiate a traffic stop. (RR47:117-18). He

activated his red and blue lights, but the vehicle did not stop; it “just continue[d] to

roll down the road.” (RR47:118). Ralston could see there were two people in the

17

vehicle. (RR47:118). The female driver made eye contact via the rear view

mirror. (RR47:118, 120). Ralston activated his siren but the vehicle still did not

stop. (RR47:119). The vehicle ran a stop sign. (RR47:119). Ralston could see

the male passenger motioning for the driver to ignore Ralston. (RR47:12021).

The vehicle “started to slow roll” at which point Appellant jumped out and ran

toward a house, ignoring commands to stop. (RR47:122–23). Appellant tried but

was unable to open the front door of the house. (RR47:123). Ralston and his

partner apprehended him. (RR47:123–24). He told the officers “he had told [the

driver, his wife Daphne Johnson] to continue to go and not stop because he had

warrants for his arrest.” (RR47:125). Appellant was later convicted of evading

arrest and given one year of probation. (RR47:127-28; SX#168). His probation

was subsequently revoked and he was sentenced to 180 days in jail. (RR47:128;

SX#168).

On August 7, 1995, Garland Neighborhood Police Officer M.G. Clark was

dispatched to locate Appellant, who was wanted on an ongoing aggravated assault

with a deadly weapon call. (RR47:132-33). Throughout the night, Appellant had

been making threatening phone calls and police had received a tip he was at a

particular location. (RR47:133-34). Clark located Appellant and arrested him for

outstanding warrants and the aggravated assault case. (RR47:134-37). At the jail,

Appellant threatened Clark so Clark filed a retaliation case against Appellant,

18

primarily for record purposes. (RR47:138-40). Appellant was later convicted of

the aggravated assault and sentenced to ten years in prison, probated for five years.

(RR47:140–41, 143; SX #169). The complainant on the aggravated assault case

was Courtney Johnson. (RR47:143; SX#169). The retaliation charge was no-

billed. (RR47:144).

On October 9, 2002, Garland Police Officers Clay Lacey and Gary

Steadman responded to a hit-and-run call. (RR47:147, 155). The person who

called police was following the vehicle that was involved in the hit-and-run.

(RR47:148, 155). By the time Lacy arrived at the scene, “the person in the car

was getting out.” (RR47:148-49). Lacy and Steadman searched the area and

eventually found and apprehended Appellant. (RR47: 150–151, 155–57).

Appellant repeatedly ignored Steadman’s commands to stop running and to get on

the ground. (RR47:157-58). Steadman eventually tackled Appellant and arrested

him for evading arrest. (RR47:158-60). Appellant was later convicted of the

offense and sentenced to 75 days in jail. (RR47:160-61; SX#170).

On June 14, 2004, Digna Salmeron was in her truck preparing to leave for

work when she heard a knock on the window. (RR47:182, 191). The man stated

he was sick and needed to use a phone to call an ambulance. (RR47:183). Scared,

Salmeron told the man she did not have a phone. (RR47:183-84). The man “just

went at [her].” (RR47:184). He tried to force his way into the truck. (RR47:184–

19

85, 191). The man eventually wrested the keys away from Salmeron and threw her

into the yard. (RR47:186). He then started the truck and left. (RR47:186). He later

wrecked Salmeron’s truck, rendering it inoperable. (RR47:188, 197). Salmeron

could not fully identify the person who did this to her, except that he was a big and

strong Black man. (RR47:189, 192-93).

Garland Police Officer Matthew St. Clair was dispatched as backup on the

call regarding the carjacking of Salmeron’s truck. (RR47:165, 167). When St.

Clair arrived in the area, Officer McClendon had already located the stolen vehicle

and “was in the midst of a . . . high speed vehicle pursuit through some

neighborhoods.” (RR47:166-67). The driver – Appellant – “lost control and

wrecked out and struck a wall, some parked cars in a driveway, and the corner of a

house.” (RR47:168, 170). At that point, Appellant got out and attempted to flee

on foot. (RR47:170). He was eventually taken into custody. (RR47:171-72).

Appellant was subsequently convicted of robbery and sentenced to five years in

prison and assessed a $1,500 fine. (RR47:175-76; SX#171). He was also

convicted of evading arrest, sentenced to a year in state jail, and assessed a $1,500

fine. (RR47:175-76; SX#171).

On September 13, 2004, Garland Police Lieutenant John Spera responded to

“a family disturbance” call. (RR47:78-79). “[T]here was a suspect there

attempting to kick the door in and that there was also a protective order on him.”

20

(RR47:79-80). The complainant was Daphne Johnson. (RR47:80). Daphne told

police that Appellant “had told her he was coming over to get some money and that

he would kick in the door if he had to.” (RR47:84). Footprints were visible on

the door. (RR47:85). There were two children in the apartment at the time.

(RR47:87). Appellant was subsequently convicted for violation of a protective

order and sentenced to 330 days in jail. (RR47:97; SX#166).

The State also presented evidence of a theft committed by Appellant against

his former employer. David Contente owns Kwik Kar Oil and Wash in Mesquite.

(RR48:157). Appellant worked for him in December 2010, performing State

inspections and helping out in the shop. (RR48:158-61). He later became a

cashier. (RR48:161, 183). Appellant worked ten hours a day, five days a week.

(RR48:180). He was reliable and was given a set of keys to the business.

(RR48:162, 164). Appellant did not handle conflict well, however. (RR48:163).

“He was too rigid, in our rules, you know.” (RR48:163).

On November 14, 2011, Appellant called Contente at 5:00 in the morning.

(RR48:163-64). Appellant “said I needed to come down to the store so he could

talk to me and that he had done a bad thing.” (RR48:164). Contente went to his

computer and tried to access the surveillance cameras at the store, but the camera

was blacked out. (RR48:165, 166; SX#175-178). Contente “went to the police

department and asked a policeman to go down there with me.” (RR48:170). He

21

“thought the worst.” (RR48:171). The police accompanied him to the store.

(RR48:171). There, Contente discovered that three state inspection booklets, $325

in cash, and a monitor were missing. (RR48:172-73). The inspection booklets and

the cash were taken from the safe. (RR48:172-73). The booklets are valued at

$2100. (RR48:172). Footage from surveillance camera showed Appellant in the

store earlier that morning and that Saturday night. (RR48:174; SX#173, 174).

Appellant was arrested. (RR48:178). The monitor was returned but the inspection

booklets and the cash were not. (RR48:175, 178; SX#174).

On April 15, 2012, at 5:30 in the morning, Appellant was brought into the

emergency room by Dallas police and paramedics. (RR48:190-91; SX#188). He

was handcuffed, “highly agitated” and “somewhat combative.” (RR48:194). He

was in a substance-induced psychosis. (RR48:202-03). It took eight or nine

people to hold Appellant on the bed. (RR48:194). He had to be placed in a body

net, a four-point restraint that lays over the patient and attaches to the bed.

(RR48:194-95). The more the staff tried to hold Appellant down, the more

agitated it made him. (RR48:195). Appellant made several statements: “I hope

they’re getting this on TV, God is watching all of this, XLT and divorce is a bad

thing, and I’m going to grab your gun.” (RR48:197). Once Appellant was

medicated he calmed down. (RR48:198). He reported that he had being smoking

22

crack cocaine, ice, and marijuana laced with PCP. (RR48:198). He did not report

any mental health concerns. (RR48:199-200, 208).

Parker was not involved in his discharge, but per hospital protocol,

Appellant would have been offered information and resources regarding drug

treatment. (RR48:200-01, 205, 208-09).

On the morning of April 26, 2012, Carina Pinzon was working as a

housekeeper at the Express Inn in Garland. (RR48:101). She was cleaning one of

the rooms and left the door propped open with her cart. (RR48:102). When she

was cleaning the bathroom, a man moved her cart and entered the room.

(RR48:102-03). Pinzon turned around when the man touched her shoulder.

(RR48:103-04). He said something to her in English, but she did not understand

him. (RR48:103). She asked if he needed something. (RR48:103). At that point,

she noticed that the zipper on his pants was down. (RR48:104, 108). “[H]e had

his penis outside and that’s when I got scared.” (RR48:104). His penis was erect.

(RR48:108). He tried to grab her hand. (RR48:105). Pinzon threw a bucket of

water at him, pushed him and ran away. (RR48:105). She ran to the office and

her manager called the police. (RR48:105-06).

Garland Police Officer Mark Mendoza was dispatched to the Express Inn.

(RR48:117-18). There, he spoke with Pinzon and got a description of the suspect.

(RR48:119). He then consulted with the manager to determine whether the suspect

23

was a guest at the motel. (RR48:119). The manager gave him some names and

Mendoza went to those rooms. (RR48:120). Appellant was one of the possible

suspects. (RR48:120). Mendoza recognized Appellant from a prior arrest.

(RR48:120). Appellant allowed Mendoza into his motel room, which smelled of

marijuana. (RR48:121, 129). Mendoza noticed that Appellant’s clothes were wet.

(RR48:121, 123). Appellant told Mendoza that he had been smoking crack all

night, but he did not appear intoxicated. (RR48:121, 123, 130). Mendoza asked if

Appellant had anything illegal in his room. (RR48:122). Appellant advised that he

“probably had a crack pipe or something somewhere in the room.” (RR48:122).

Mendoza asked Appellant about the incident with Pinzon. (RR48:122). Appellant

told him that “he was just trying to drop off some towels to the room.”

(RR48:122). Pinzon confirmed Appellant was the man who had exposed himself to

her. (RR48:124). Appellant was not arrested, but he was issued a criminal

trespass warning and was ordered to leave the motel. (RR48:124-25).

Mendoza had previously arrested Appellant on May 31, 1994. Mendoza and

his partner, Officer Ehrman, were dispatched to the scene of a man and woman

fighting on the side of the road. (RR48:111-12). Upon arrival, the officers

separated Appellant and the woman and ran a check for outstanding warrants.

(RR48:112). They seated Appellant in the patrol car. (RR48:113). When Officer

Mendoza opened the door to notify Appellant that he would be arrested on a

24

warrant, Appellant “came charging out of the back [of the] squad car, like trying to

get away, and we began wrestling with him.” (RR48:113). Appellant put up “a

pretty good struggle.” (RR48:114). He bit Mendoza on the arm. (RR48:114).

He bit Ehrman. (RR48:114). He bit Ehrman so hard that he bit through the

officer’s watch. (RR48:114). Appellant later pleaded guilty to resisting arrest and

was sentenced to twelve months’ probation. (RR48:115-16; SX#189). His

probation was revoked and he was sentenced to 365 days in jail. (RR48:116;

SX#189).

Carlton Jenkins was incarcerated with Appellant at the Rudd Unit for two

months in 2005. (RR47:201, 203, 238). They were bunkmates. (RR47:202). At

first, Appellant and Jenkins had “a decent relationship.” (RR47:205). Jenkins

testified that Appellant “stopped going to work . . . [and] was confined to the

housing unit then.” (RR47:207). Several times, Appellant was not able to buy

groceries at the commissary. (RR47:210). Jenkins shared some of his food with

him. (RR47:211). The bunkmates’ relationship began to change. (RR47:214).

Jenkins saw Appellant sitting on the head of his bed, which is a sign of disrespect.

(RR47:214). Appellant’s “demeanor went south.” (RR47:215). Appellant “quit

school, too.” (RR47:216). He “was on confined housing.” (RR47:216). Jenkins

tried to talk to Appellant but “It went bad.” (RR47:219).

25

July 25, 2005 “was GI day.” (RR47:220). “[E]verybody cleans the dorm.”

(RR47:220). Afterwards, Appellant “was sitting on [Jenkins’] bunk.”

(RR47:222). Jenkins told Appellant that they needed to talk because he wanted

Appellant to stop disrespecting him. (RR47:223, 247). The men went to the back

of the dorm. (RR47:223, 248). There, “[Appellant] assaulted [Jenkins]. He

swung at [him].” (RR47:223). He hit Jenkins in the head. (RR47:224). The men

“sort of grabbed each other[.]” (RR47:224). They separated when they thought a

guard was approaching. (RR47:225). Then, they “went back and then [they]

fought some more.” (RR47:225). Appellant grabbed Jenkins below his knees and

flipped him, causing Jenkins’ head to his the concrete floor. (RR47:226, 233).

Jenkins “split [his] head open.” (RR47:227). He was bleeding; “[t]here was

blood everywhere.” (RR47:227-28). Jenkins was transferred to another unit to

receive medical treatment. (RR47:230). The injury to his head required nine

staples. (RR47:230–231; SX #172). Jenkins also suffered bruising from blows to

his face and head. (RR47:232). Appellant was sent to solitary confinement.

(RR47:230).

Ashley Villegas worked for a year as a correctional officer with the Texas

Department of Criminal Justice (“TDCJ”) at the Price Daniel Unit in Snyder,

Texas. (RR47:256-57). Villegas worked the overnight shift, from 9:00 p.m. to

5:00 a.m., which required that every two hours she walk the unit and count the

26

inmates. (RR47:260, 262). On February 14, 2006, when she arrived at

Appellant’s cell during her 1:00 a.m. count, she “noticed the offender having one

arm up on his door and the other arm on his penis masturbating and looking at me

and smiling like with a grin, I guess as if he thought it was funny.” (RR47:263-

64). Appellant’s pants were down and his penis was visible. (RR47:264).

Villegas testified that Appellant was “known as . . . a high profile inmate so that

means that all the officers knew who he was, but not in a good way, because they

had also written disciplinary reports on him, too.” (RR47:271).

Jennifer Pyburn is a detention officer at the Lew Sterrett Jail. (RR48:134).

At one time, Appellant was under her supervision. (RR48:137). One time when

Pyburn was escorting Appellant to a visit, he turned around “and he was like, I

ought to just pull you in here, which is like the visitation door.” (RR48:145).

Appellant “didn’t say it in a mean - - mean way[.]” (RR48:145). He was smiling.

(RR48:145). Appellant later apologized. (RR48:155).

On another occasion, Pyburn observed an interaction between Appellant and

another detention officer when Appellant was disrespectful. (RR48:147-48). The

officer told Appellant the shower he was supposed to be cleaning was not clean

enough. (RR48:147). Appellant told her that was the way he cleaned it.

(RR48:147-48). When Pyburn instructed Appellant how to clean the shower, he

told her that “we do not pay him enough to clean the shower.” (RR48:149).

27

Pyburn testified that although it is against the rules, inmates tattoo

themselves while in jail. (RR48:140-41). The tattooing device is usually

fashioned using staples or parts from a dismantled intercom and the ink is created

using colorful candy. (RR48:140-41).

Melodye Nelson, a 25-year veteran of TDCJ, testified as an expert on the

prison system in Texas. (RR48:18). She is the senior warden of the female death

row located at the Mountain View Unit in Gatesville, Texas. (RR48:19). She

previously served as a major at the male death row located at the Polunsky Unit in

Livingston, Texas for over three years. (RR48:18-19). Nelson testified generally

about the types of facilities, number of inmates and guards statewide, and how

inmates are classified within the system.

When an inmate arrives at TDCJ, he is sent to intake in order to determine

his custody level. (RR48:32). Among the factors considered are the inmate’s

history of incarceration and prior jail conduct, as well as the nature of his current

offense and the length of his sentence. (RR48:31-32). General Population 1, or

“G1,” are those offenders who are the lowest risk. (RR48:32, 34). A G1 may be a

trustee, which allows him or her to live and work outside of the facility’s perimeter

fences. (RR48:34). General Population 2, or “G2,” is the largest percentage of

the general inmate population. A G2 may live in a dormitory and work in

maintenance, food service or laundry. (RR48:41). General Population 3, or “G3,”

28

includes inmates serving 50 years or more. (RR48:32). A G3 is not allowed into

public unrestrained and without armed supervision. (RR48:35). A G3 “cannot be

assigned anywhere on a facility that they would have access to multiple areas, such

as maintenance crews.” (RR48:41). G3s are permitted contact visits with their

immediate family. (RR48:58). General Population 4, or “G4,” are those inmates

who are disciplinary problems. (RR48:32). A G4’s movement and job assignment

are very restricted. (RR48:42). General Population 5, or “G5,” are those inmates

who are disciplinary problems and exhibit assaultive behaviors. (RR48:32-33).

Finally, administrative segregation is reserved for inmates with multiple

disciplinary incidents or gang affiliation or inmates who “have posed a threat - - a

continuing threat to the safety and security of our institutions.” (RR48:44). The

inmate’s initial classification is then referred to a State Classification Committee.

(RR48:33). Based on that classification, the inmate will be assigned to a facility

within TDCJ. (RR48:33). Once in that facility the Unit Classification Committee

will monitor and adjust the inmate’s custody level. (RR48:33).

An inmate convicted of capital murder and sentenced to life without parole

is classified as a G3 upon arrival at TDCJ. (RR48:48). A capital murderer

sentenced to life without parole will never receive a classification better than G3,

although they may be classified as a G4 or G5 or placed in administrative

segregation. (RR48:48).

29

With regard to death row inmates, there are three custody levels: 1, 2, and 3.

(RR48:46). Nelson described them as follows:

Death Row 1 meaning no disciplinaries, not a behavior problem; 2

would be the same thing, had a major disciplinary case; and a Death

Row 3 would be assaultive death row, or assaultive disciplinary case.

And we keep them as a D3 30 days. We review them. If they haven’t

had another assaultive case, we move them up to a D2. A Death Row

2, Level 2 stays there 90 days. At the 90-day mark, we review them,

and if they haven’t had some continued disciplinary problems, we - -

we bump them back up to a Death Row Level 1, a D1.

(RR48:46). All death row inmates are housed in one-man cells and most are

allowed up to two hours of recreation per day. (RR48: 46, 77). They are allowed

two hours of visitation once a week as well as a visit from a spiritual advisor.

(RR48:77).

TDCJ maintains some records of inmates’ disciplinary infractions.

(RR48:36). Records of minor infractions are not maintained; they are shredded.

(RR48:36). Minor infractions include: being out-of-place; giving things to

another inmate; failing to obey a direct order; not going to school, etc. (RR48:38).

Often, verbal confrontations between the inmate and a guard do not result in a

disciplinary case. (RR48:38). Nelson testified death row inmates have been

involved in assaults on other inmates, assaults on staff, sexual misconduct,

possession of contraband, possession of weapons, possession of drugs, and

possession of cell phones. (RR48:47). For demonstrative purposes, Nelson

30

brought some weapons she has confiscated from inmates over the years made from

materials like cardboard, parts of a typewriter, screws, and pencils. (RR48:59-62).

Appellant’s Case

Appellant testified regarding his upbringing, drug use and the instant

offense. He testified he has been using crack cocaine for “about 14 years[]” and

has experimented with alcohol and PCP. (RR49:8). He testified he began

smoking marijuana at seven years of age. (RR49:9). He bought it with his

allowance money. (RR49:9).

Appellant testified he was released from prison in July 2009 and relapsed in

October of 2011. (RR49:11). He started smoking crack and “ice.” (RR49:11).

At first, it was only on weekends. (RR49:12). He was still paying his bills.

(RR49:12). His relapse was “devastating.” (RR49:16). It made him lazy and he

fell into a deep depression. (RR49:16). “I stayed home in the dark, you know, just

was embarrassed, ashamed.” (RR49:16).

On the night before the offense, Appellant went by himself to his brother

Anthony’s wedding reception. (RR49:19). He stayed for about an hour.

(RR49:24). Everybody was happy and having a good time, but Appellant felt like

he was in his own personal hell. (RR49:19-20). Because he had missed so much

work due to his drug use, Appellant had lost his job. (RR49:20). He also felt

ashamed of his clothes and hair. (RR49:22).

31

Appellant went home, ate dinner, then walked back to the party. (RR49:25-

26). He told his cousin that he messed up his car when he put gas mixed with

water in the tank. (RR49:26-28). The cousin gave him $30 and suggested how to

fix it. (RR49:27-28). Appellant was drunk, so he used the money “to get high.”

(RR49:28). For the next several hours, Appellant “[c]ontinued to smoke, sell a

little bit, smoke, sell a little bit, smoke.” (RR49:28). He also had some Xanax to

use when it was time to return home to babysit his daughter. (RR49:29).

At about 6 o’clock in the morning, Appellant walked back to his brother’s

house. (RR49:30). He found a bottle of wine on the patio and drank the whole

thing. (RR49:30). He “wanted money. I wanted to get high on crack.”

(RR49:30). He saw a plastic water bottle. (RR49:30). He put lighter fluid in it.

(RR49:30). He was “[j]ust going to take it and scare the person.” (RR49:30). He

planned to “[p]our it on her.” (RR49:30). It was going to be a “scare tactic.”

(RR49:31). Although he did not remember having a lighter, he acknowledged he

would have had to have one to smoke crack. (RR49:32).

Appellant walked across the street to the Whip-In. (RR49:31). He wanted

to get the money and leave. (RR49:32). He did not intend to set Nancy on fire.

(RR49:31). Appellant walked inside and “saw a lady.” (RR49:33). She was

getting the mop bucket ready. (RR49:33). Appellant walked behind the counter.

(RR49:33). Nancy followed him and told him he was not supposed to be behind

32

the counter. (RR49:33). When she got close to him “I just poured the fluid over

her head. At that time I remember she was - - started trembling.” (RR49:33).

Appellant told Nancy to open the cash register because he wanted the

money. (RR49:33). While she was opening the register, he took a lighter and

some cigarettes. (RR49:33). He did not remember taking Nancy’s ring.

(RR49:33-34). Nancy opened the register and moved away. (RR49:34).

Appellant took the money. (RR49:34). He warned Nancy to stand back because

he had a lighter. (RR49:34). She moved toward him and he “flipped [the lighter]

once to try to scare her but that didn’t stop her.” (RR49:34). Nancy reached

across him again. (RR49:34). It “spooked” Appellant so he flicked the lighter

“again, twice, hoping that she would move back.” (RR49:34). That’s when

Nancy’s clothes ignited. (RR49:35). Appellant was not thinking. (RR49:35-36).

He was intoxicated; he had smoked nearly $100 worth of crack, consumed alcohol,

and had taken a Xanax. (RR49:36). He did not think to help Nancy once she was

on fire. (RR49:36).

Appellant “knew [he] had [done] a bad thing, so [he] just - - [he] just ran.”

(RR49:41). He ran and hid in some bushes and smoked a cigarette. (RR49:41).

He “got tired of laying in those bushes, so when [he] came out, that’s when [he]

saw the police car parked at the end of the street.” (RR49:40-41). Appellant

33

started running. (RR49:41). When he tired of running, he sat on a porch and

waited for the police. (RR49:41).

Appellant remembered “tussling” with Marecle but did not remember his

encounter with Denson. (RR49:41). He remembered stealing a bicycle.

(RR49:41-42). He testified he thought the ride to the police station was “very

short. It was like I just closed my eyes and opened my eyes and I was there.”

(RR49:42). When he was in the patrol car, he did not understand what he had

done. (RR49:43).

Appellant’s testified that his parents were married. (RR49:46, 90). His

mother worked during the day and his father worked at night. (RR49:46). They

took him to church and taught him right from wrong. (RR49:90). Appellant has

two brothers, Anthony and Timothy. (RR49:47). Anthony went into the military.

(RR49:47). Timothy “has been in prison half his life.” (RR49:47).

When Appellant was five years old, a cousin “put his penis in my mouth,

[and] peed in my mouth.”8 (RR49:50). Appellant’s cousins and uncle laughed at

him. (RR49:50). When he was eight, the family friend he bought drugs from,

fondled him. (RR49:48). “He pulled my penis out and wanted to suck it.”

(RR49:48). Appellant “let him do it for a little while, but then [he] knew that

8

Appellant testified he never said anything about childhood sexual abuse prior to counsel on the

instant offense. (RR49:91). He never mentioned it during previous incarcerations or when he

was hospitalized because he thought it “was irrelevant at the time.” (RR49:91).

34

wasn’t right.” (RR49:48). He told him to stop. (RR49:48). Appellant still bought

drugs from him. (RR49:48-49). Appellant used the fondling incident “to hold

over [the friend’s] head.” (RR49:49). Appellant threatened to tell about the abuse

and the man “gave [him] what [he] wanted.” (RR49:49).

Appellant testified that when he dated Amy Armstrong they fought and

argued. (RR49:53-54). He admitted that he hit Armstrong, but “I didn’t just hit

her enough just to really hurt her, but just enough to make her stop hitting me[.]”

(RR49:53). He testified he threw the burning log on her patio “to get her to come

outside, get her to let me in. I had nowhere to go.” (RR49:54).

Appellant is married to Daphne Johnson. They have three daughters.

Appellant and Daphne started dating when he was fifteen years old and married

when they were eighteen. (RR49:52, 55). Appellant admitted that he used to hit

Daphne. (RR49:55). He never hit her “enough to just hurt her, just enough to back

her off.” (RR49:57).

Appellant dropped out of school when he was in eleventh grade. (RR49:46).

He was never placed in special education classes, but he was in “basic classes.”

(RR49:91). He took courses in auto body technology at Richland College.

(RR49:91). Appellant testified he “learn[s] at a slow pace[,]” but he does not have

a learning disability. (RR49:92).

35

Appellant worked at a company called Sanden for about five years, from

1997 until 2002. (RR49:58). He started on the assembly line, but was promoted

four times, all the way to repairman. (RR49:59). He was eventually fired because

he missed too many days of work. (RR49:58-59). At the time, he was using

drugs on the weekends and “it carried on until the Mondays and Tuesdays[.]”

(RR49:59). After he was fired, Appellant checked himself into Green Oaks

Hospital to be treated for drug abuse. (RR49:59). He was there for a week and

was diagnosed with depression. (RR49:60). After Green Oaks, he was sent to

Summer Sky in Stephenville for further inpatient treatment. (RR49:60).

Appellant spent 35 days at Summer Sky. (RR49:60). He “wasn’t ready [to leave],

but [his] insurance ran out.” (RR49:61). He spent a week in a halfway house, then

returned home to his wife. (RR49:61). Upon his return home, he stayed sober for

a few weeks, then went back to using crack and marijuana and drinking alcohol.

(RR49:61-62).

Appellant testified he was “under the influence[]” when he stole Salmeron’s

truck and “coming down off of [drugs]” during the theft of the Kwik Kar’s money

and inspection books. (RR49:62, 75). Appellant testified he did not remember the

incident with Pinzon. (RR49:118). Every time he has been in trouble, it was

because of the drugs and depression. (RR49:99-100). He was depressed “because

I couldn’t do more for my family and myself.” (RR49:99). He testified the first

36

time he spoke with Daphne after the instant offense, he “couldn’t remember what

[he] had done.” (RR49:80). Appellant confirmed his criminal history:

 September 15, 1991: At 15, Appellant was arrested driving a stolen car.

(RR49:100).

 February 4, 1992: He was arrested for pushing a police officer.

(RR49:100).

 December 9, 1992: He was arrested for theft. (RR49:100).

 August 13, 1993: He was arrested for assaulting Armstrong.

(RR49:100-01).

 September 8, 1993: He was arrested after he threw the burning object

onto Armstrong’s patio. (RR49:101).

 September 9, 1993: He was arrested for possession of marijuana.

(RR49:102). This is the only drug charge Appellant has ever had.

(RR49:102).

 February 8, 1994: Appellant was arrested for outstanding warrants.

(RR49:102).

 April 16, 1994: He was arrested for an outstanding warrant on the

marijuana charge. (RR49:102).

 May 31, 1994: He was arrested for assault warrants. (RR49:103). This

is when he bit Officers Mendoza and Ehrman. (RR49:103).

 July 23, 1994: Appellant directed Daphne not to stop the car when the

police were trying to pull her over. (RR49:103).

 August 7, 1995: He was arrested for aggravated assault against Daphne’s

sister, Courtney Johnson. (RR49:104).

 June 9, 2002: He was issued a Class C assault citation for hitting

Daphne. (RR49:105).

37

 October 9, 2002: He was arrested for evading arrest. (RR49:105).

 November 15, 2002: He was arrested for assaulting Daphne.

(RR49:105).

 July 3, 2003: Appellant did not remember walking up and hitting Daphne

as she sat in the drive though at Braum’s. (RR49:106). But, he did not

deny that the incident happened. (RR49:47).

 September 7, 2003: He was arrested for assaulting Daphne. (RR49:107).

 January 5, 2004: He was arrested for theft. (RR49:107)

 June 19, 2004: He was arrested for robbing Salmeron. (RR49:107).

 September 13, 2004: He violated Daphne’s protective order.

(RR49:108).

Appellant testified the reason he set Nancy on fire was because she was

coming at him. (RR49:120). Appellant acknowledged that when he was arrested,

he only told police that he had consumed cocaine and two beers prior to the

offense. (RR49:120). He did not mention the bottle of wine or the Xanax.

(RR49:120). “It was irrelevant. I was intoxicated.” (RR49:120).

Photographs of Appellant’s tattoos were admitted into evidence.

(RR49:130-33; SX#179-186). Appellant testified he got several of them while he

was in prison. He acknowledged that he was never caught for those rule

violations. (RR49:132). Recently, while incarcerated for the instant offense,

38

Appellant had “Gift from God” tattooed around his collarbone. (RR49:132, 133).

He did not get caught for this rule violation. (RR49:132).

Appellant’s supervisor from Sanden testified that Appellant was a good

worker. (RR49:137-38, 141). His only problem was his attendance. (RR49:142).

Several co-workers testified Appellant was polite and friendly. (RR49:149-50,

157, 162). They testified this offense was out-of-character. (RR49:153, 158-59,

166).

Daphne Johnson testified she is Appellant’s wife. (RR49:184). She testified

when they married, they were immature. (RR49:186). They struggled financially,

they did not communicate well, and their arguments got physical. (RR49:186).

They hit each other. (RR49:217). Daphne did not remember reporting to police

that Appellant had made threatening phone calls. (RR49:219). She did not

remember her sister filing an aggravated assault charge against Appellant.

(RR49:220).

In an application for protective order, Daphne alleged that on December 9,

2003, Appellant “became angry and punched [her] in the face.” (RR49:223;

SX#193). She also wrote that Appellant “very frequently” did the following:

called her names and criticized her; tried to keep her from doing something; going

out with friends; gave her angry looks or stares; prevented her from having money

for her own use; threatened to hit or throw something at her; pushed, grabbed, or

39

shoved her; put down her family or friends; and, slapped, hit or punched her.

(RR49:222; SX#193). In the affidavit, Daphne also detailed Appellant’s prior

assaults. (RR49:223-24; SX#193). In November of 2003, Daphne locked

Appellant out when he came home very late. (RR49:224). He beat and banged on

the door. (RR49:224). When Daphne finally let him in, he pushed her.

(RR49:224). In October of 2003, Daphne again locked the door when Appellant

went out. (RR49:224). Appellant kicked in the door and punched her in the face

and chest. (RR49:224). She suffered a black eye, scratches on her face and neck,

and soreness and pain. (RR49:224). She was unable to work for two weeks.

(RR49:224). Daphne wrote:

Over the last nine years, Matthew has been physically violent and

abusive to me. He has hit me, punched me, slapped me, kicked me

once, strangled me, pushed and shoved me, and thrown me around.

I’ve had bruises, black eyes, a bloody nose, a busted lip, scratches;

soreness, swelling and pain.

(SX#193).

Daphne first became aware of Appellant’s drug use after his grandmother

died. (RR49:187). He “would go off on binges” and disappear for a day or two.

(RR49:188). Appellant would get physical with Daphne when he was high.

(RR49:198). Daphne kicked him out of the house four to six times. (RR49:190).

She tried to talk to him about his drug use. (RR49:195). He tried to stop using on

his own. (RR49:195). Appellant also suffers from depression. (RR49:209). The

40

depression became more frequent after the Kwik Kar incident. (RR49:210). In

Daphne’s opinion, Appellant was high at the time of the offense. (RR49:243). She

testified that Appellant “was an awesome father” to their three daughters.

(RR49:192).

Pharmacologist Dr. John Roache testified as an expert regarding illegal

drugs and addiction. (RR50:27). Roache testified addiction is “a learning process

that happens with repeated use of drugs of abuse.” (RR50:30-31).

Cocaine is a stimulant. (RR50:33). It increases wakefulness and vigilance

and produces feelings of intense euphoria and motivation. (RR50:34). Marijuana

is a plant and a mild hallucinogen. (RR50:34). Phencyclidine or, PCP, is a

hallucinogen. (RR50:35). A user feels “superhuman empowered.” (RR50:35). It

can also produce “psychotic like effects, where you can have hallucinations,

paranoia, and extreme agitation.” (RR50:35). Methamphetamine or “ice,” is a

stimulant, which produces effects similar to cocaine. (RR50:35). Xanax is a

benzodiazepine. (RR50:36). It is a sedative and used to treat anxiety. (RR50:36).

Commonly, an addict will use multiple chemical substances. (RR50:37).

This is referred to as poly-substance dependence or poly-substance abuse.

(RR50:37). When an individual is under the influence, he may be more impulsive.

(RR50:37). “[T]he addict becomes more driven for the immediate consequences

of the drug experience and less thoughtful or conscientious or cognitively decisive

41

about longer term consequences.” (RR50:37-38). Often, addicts have relapses

after periods of sobriety. (RR50:43).

Roache conceded that when Appellant checked himself into the hospital in

2002, he was depressed because he was unable to quit using drugs. (RR50:44).

Indeed, the discharge instructions indicate “The patient was profoundly depressed

because of his inability to stop doing drugs, and having observed his many losses,

including job, family, financial, and clearly self esteem.” (RR50:53; DX#22).

Roache conceded that while incarcerated prior to trial, Appellant was not

diagnosed with depression, but with poly-substance abuse and substance-induced

mood disorder. (RR50:45).

Although Roache did not review the surveillance video of this offense, he

opined Appellant was intoxicated at the time he committed the offense.

(RR50:45). Roache did not think it was “necessary[]” to review the surveillance

video. (RR50:45-46).

Frank AuBuchon testified as an expert on the Texas prison system. He

described the various classification levels and the types of housing available.

(RR50:146-47, 151, 158, 160-61). AuBuchon reviewed Appellant’s entire

classification file, records of Appellant’s incarceration at the Dallas County Jail, a

summary of Appellant’s extraneous offenses, and a summary of the instant offense.

42

(RR50:145-46). AuBuchon testified Appellant will go into TDCJ as a G3 and will

be placed in a high security unit. (RR50:157).

Dr. Jonathan Sorensen testified that he conducted an actuarial analysis to

determine the probability that Appellant will be violent in prison. (RR51:22, 27;

DX#25). Sorensen opined that Appellant “will fare better than the average

incoming capital offender.” (RR51:30; DX#26). The factors that decreased

Appellant’s risk of violence include: his age; his educational level; a lack of a

disruptive group or gang affiliation; his prior prison behavior and classification

level; and, the fact that he would be serving life without the possibility of parole.

(RR51:30-31, 38, 42, 44). The factors that increased Appellant’s level of risk

include: his prior incarceration; his prior assaults while incarcerated; and, the fact

that his capital murder involved a contemporaneous robbery. (RR51:45-46, 20-

51).

James Aiken, a prison consultant who has never worked in a Texas prison,

testified that Appellant “fares low on the factors of providing unusual risk to staff,

inmates, or the general public.” (RR51:58, 60, 61; DX#27).

Appellant’s older brother Timothy9 testified about their family and their

history of drug use. All three brothers used drugs. (RR50:74). Timothy was

aware that Appellant used drugs at a young age. (RR50:73). Twice, he took away

9

At the time of trial, Timothy was serving a 40-year sentence for a 2004 conviction for theft of a

person and assault on a public servant. (RR50:67).

43

Appellant’s marijuana. (RR50:75). Then, Timothy went to prison when Appellant

was 15 years old and was gone for eleven years. (RR50:85). Timothy returned

home for a couple of years, then went back to prison on two 40-year sentences.

(RR50:85).

Timothy was present during one fight between Appellant and Daphne.

(RR50: 80-81). Appellant tried to slap Daphne. (RR50:81). Timothy intervened

and he and Appellant “had a fight - - a tussle.” (RR50:81). In Timothy’s opinion,

Appellant was intoxicated at the time because “he was big and I’m smaller and I

handled him - - I mean, real easy.” (RR50:82).

Appellant’s mother-in-law, Hazel Johnson, testified that Appellant is a good

person and a good father. (RR50:88, 90, 92). In the month before the offense,

Appellant was stressed and depressed. (RR50:93-94). Daphne’s aunt, Frances

Wilson, testified she learned that Appellant had a drug problem about five years

after he and Daphne were married. (RR50:100). She started talking to him about

it in 2011. (RR50:101-02). Appellant was depressed and Wilson worried that he

would harm himself. (RR50:103). Wilson was not aware of any physical abuse

between Appellant and Daphne. (RR50:100). Daphne’s sister Courtney Johnson

testified Appellant and Daphne’s relationship was “a normal relationship, just like

any other married couple would have.” (RR50:111-12). She never saw Appellant

physically abuse Daphne, but she would “hear stuff from [her] sister.”

44

(RR50:112). Courtney was aware of Appellant’s drug problem and has seen him

under the influence. (RR50:113). She did not recall the incident on August 7,

1995 when Garland police were called to her apartment. (RR50:126-27). She did

not recall telling police that Appellant pointed a gun at her. (RR50:128). She did

not recall trying to drop charges with the district attorney’s office. (RR50:128).

She has no recollection of the fact that Appellant pleaded guilty to that offense and

served out a probation. (RR50:126-27).

A week before this instant offense, Courtney went with Appellant to the

Garland Police Station when he asked them to “lock him up” because he was on

drugs and wanted to avoid getting into trouble. (RR50:123). Without any active

warrants, the police did not arrest him. (RR50:124).

Valerie Braziel is Appellant’s daughter Matduxx’s godmother. (RR50:166,

169). They met in 2009 after Appellant’s release from prison. (RR50:169-70).

Since that time, they have become friends. (RR50:170). In the time leading up to

this offense, Appellant was withdrawn and Braziel felt as though he was depressed.

(RR50:174). Braziel had no idea that he was a drug addict. (RR50:174). She was

not aware of any domestic violence between Appellant and Daphne. (RR50:173).

The State’s Case-in-Rebuttal

Nurse Kelly Nelson treated Nancy in the Burn Intensive Care Unit at

Parkland Hospital. (RR51:71-73). Nancy was in pain. (RR51:74). She was

45

unable to speak because she had a breathing tube. (RR51:74). Nelson

communicated with Nancy using non-verbal pain scales “based on how the patient

is acting or like body language, emotion.” (RR51:74). Nelson was able to ask

Nancy “yes” or “no” questions and Nancy responded using hand signals and nods.

(RR51:74-75). On May 23, Nancy was “in critical condition.” (RR51:75).

Nancy was concerned about her prognosis. (RR51:75). “She attempted to

communicate to me by using her finger and writing in the air, and she spelled out

the word die, d-i-e. I clarified that that’s what she had spelled out to me, and she

nodded, yes. . . . She nodded yes to the question, are you wondering if you are

going to die.” (RR51:75). When Nelson explained all of the “interventions” that

the medical team was performing, Nancy “was shaking her head no.” (RR51:76).

Nancy “didn’t want all the interventions that we were providing for her.”

(RR51:76).

The State published the recording from Officer Coffey’s dashboard camera.

(RR51:81; SX#187). On the video, when the officers pull up to the Whip-In,

Nancy is standing outside. (SX#187). She is still on fire. (SX#187). She can be

heard screaming and pleading for help. (SX#187).

Nancy’s daughter-in-law, Elizabeth Harris, testified briefly regarding the

effect of Nancy’s death on the family. (RR51:82). Elizabeth is married to Chris

Harris, Nancy’s youngest son. (RR51:82). She was very close to Nancy. (RR51:

46

84). Elizabeth and Chris have three daughters, Lorelei, Hanna, and Olivia.

(RR51:84). Every Friday Nancy would pick up the girls from school and have a

“Mimi day[.]” (RR51:84). Nancy was an “amazing” grandmother. (RR51:85).

SUMMARY OF THE ARGUMENT

Issue Nos. 1-7: The trial court properly denied Appellant’s Batson

challenges to the State’s exercise of peremptory challenges against seven minority

veniremembers. Appellant has not met his burden to show that the State’s strikes

were the product of racial discrimination.

Issue Nos. 8-19: The trial court properly granted the State’s challenges for

cause against 4 prospective jurors. These jurors possessed biases against the law

the State was entitled to rely upon. Appellant has failed to show that he was

deprived of his right to a fair and impartial jury.

Issue Nos. 20-27: The trial court properly denied Appellant’s challenges for

cause against 8 prospective jurors. All of the denials were proper and Appellant

has failed to show that he was denied the use of a statutorily provided peremptory

challenge.

Issue Nos. 28-30: The trial court properly granted the State’s challenges for

cause against 3 prospective jurors. These jurors possessed biases against the law

the State was entitled to rely upon. Appellant has failed to show that he was

deprived of his right to a fair and impartial jury.

47

Issue Nos. 31-32: Appellant’s argument that he was deprived of a lawfully

constituted jury lacks merit. Appellant has failed to prove that any of the trial

court’s rulings on any of the challenges resulted in the seating of a juror who was

biased or prejudiced.

Issue No. 33: The evidence is sufficient to support Appellant’s conviction

for capital murder. Contrary to the assertions in his brief, the record is replete with

evidence showing his specific intent to kill Nancy Harris. Further, the evidence

also shows that the murder took place during the course of committing or

attempting to commit robbery.

Issue No. 34-35: The trial court properly admitted the surveillance video of

the instant offense as well as the still photographs from that video. While the

video is graphic, it simply depicts the reality of Appellant’s crime. The probative

value of this evidence was not substantially outweighed by its prejudicial effect.

Issue Nos. 36-37: The trial court properly admitted the photographs of

Nancy at autopsy and at the hospital prior to her death. The photographs helped

the medical examiner and her physician in their testimonies, and they depict

nothing more than the reality of Appellant’s brutal crime.

Issue Nos. 38-40: The trial court properly admitted evidence of statements

Nancy made prior to her death. These statements were admissible as excited

utterances and/or dying declarations. Alternatively, any error is harmless.

48

Issue No. 41: The trial court properly admitted evidence of Appellant’s

actions after he fled the Whip-In. This evidence was admissible as same-

transaction contextual evidence. Alternatively, any error is harmless.

Issue No. 42: The trial court properly instructed the jury regarding voluntary

intoxication. Appellant’s cross-examination may have led the jury to believe his

actions were excused by his intoxication.

Issue Nos. 43-44: The trial court properly admitted during the punishment

phase, evidence of Appellant’s extraneous conduct with former girlfriend, Amy

Franks. There is no evidence that the State acted in bad faith and Appellant has

failed to show that he was surprised or that his defensive strategy would have

changed in any way.

Issue Nos. 45-48: The trial court properly admitted during the punishment

phase, evidence of Appellant’s prior convictions. The State presented evidence

tying Appellant to each of the complained-of exhibits.

Issue No. 49: The trial court properly admitted the expert testimony of

Warden Melodye Nelson as her testimony was relevant and helpful to the jury in

deciding the first special issue. Alternatively, any error is harmless.

Issue No. 50: The evidence was legally sufficient to support the jury’s

answer to the future dangerousness special issue. Based upon the facts of the

instant offense, as well as the evidence of Appellant’s past acts of crime and

49

violence, a rational jury could find that Appellant would constitute a continuing

threat to society.

Issue Nos. 51-53: Appellant’s arguments regarding the punishment charge

are inadequately briefed and multifarious. Regardless, the trial court properly

denied his requested instructions and properly overruled his objections to the

charge.

Issue Nos. 54-65: Appellant’s admittedly meritless federal constitutional

challenges to the Texas death penalty statute are presented only to preserve the

complaints for federal habeas review. And while Appellant invites this Court to

revisit its prior holdings against his position, he provides no new authority for this

Court or the State to address.

ARGUMENT

STATE’S RESPONSE TO ISSUE NOS. 1 THROUGH 7: THE TRIAL COURT DID NOT ERR IN

DENYING APPELLANT’S BATSON CHALLENGES.

In Issues 1 through 7, Appellant contends that the trial court erred in

overruling his objection based on Batson v. Kentucky, 476 U.S. 79 (1986) to the

State’s use of peremptory challenges on veniremembers Sheppard Brown,

Kimberly Houston, Percy Phillips, Shirley Wilson, Telli White, Dionne Hashaway,

and Christylynn Kyles. (Appellant’s Br. at 35-51). These contentions lack merit

and should be overruled.

50

Applicable Law

The Texas Code of Criminal Procedure and the U.S. Constitution prohibit

the use of peremptory challenges to exclude prospective jurors on the basis of race.

Tex. Code Crim. Proc. Ann. art. 35.261(a) (West 2006); Batson, 476 U.S. at 85;

Watkins v. State, 245 S.W.3d 444, 447 (Tex. Crim. App. 2008). Under Batson, a

defendant must first make a prima facie showing that the prosecution exercised its

peremptory challenges on the basis of race. Reed v. Quarterman, 555 F.3d 364,

368 (5th Cir. 2009). If the defendant makes that showing, the burden shifts to the

prosecutor to present race-neutral explanations for striking the jurors in question.

Id. The court must then determine whether the defendant has carried his burden of

proving purposeful discrimination. Id.

At the second step of this process, the proponent of the strike need only

tender an explanation that is race-neutral. Watkins, 245 S.W.3d at 447. The

ultimate plausibility of that race-neutral explanation is to be considered as part of

the third step of the analysis, in which the trial court determines whether the

opponent of the strike (usually the defendant) has satisfied his burden of

persuasion to establish by a preponderance of the evidence that the strike was

indeed the product of the proponent’s racial discrimination. Id. Whether the

opponent satisfies his burden of persuasion to show that the proponent’s facially

51

race-neutral explanation for his strike is pre-textual, not genuine, is a question of

fact for the trial court to resolve in the first instance. Id.

This Court should not overturn the trial court’s resolution of the Batson issue

unless it determines that the trial court’s ruling was clearly erroneous. See

Watkins, 245 S.W.3d at 447-48. In assaying the record for clear error, vel non, this

Court should consider the entire record of voir dire; it need not limit itself to

arguments or considerations that the parties specifically called to the trial court’s

attention so long as those arguments or considerations are manifestly grounded in

the appellate record. Id. at 448. But this Court should examine a trial court’s

conclusion that a facially race-neutral explanation for a peremptory challenge is

genuine, rather than a pretext, with great deference, reversing only when that

conclusion is, in view of the record as a whole, erroneous. Id.

Analysis

I. Appellant failed to establish a prima facie case of discrimination, but

the issue is moot.

After the parties exercised their peremptory strikes, Appellant asserted that

he “would have Batson objections to some of the State’s strikes.” (RR43:19).

Appellant identified seven African-Americans veniremembers that the State struck.

(RR43:19-20). The State argued that Appellant failed to establish a prima facie

case. (RR43:20). Without ruling on the State’s objection, the trial court stated

that it “would prefer that the State explain their strikes.” (RR43:20). The State did

52

not object to the trial court’s failure to rule. Consequently, this Court must assume

that Appellant satisfied his step-one obligation to make a prima facie case of

purposeful discrimination and address only the second and third steps. See

Watkins, 245 S.W.3d at 448; see also Chambers v. State, 866 S.W.2d 9, 23 (Tex.

Crim. App. 1993) (where the State fails at trial to object to the trial court’s failure

to rule on the defendant’s prima facie case, that issue becomes moot and it cannot

be raised on appeal).

II. The State’s race-neutral explanations

At the second step of the Batson process, the prosecutor need only tender an

explanation that is race-neutral on its face. Purkett v. Elem, 514 U.S. 765, 768

(1995) (indicating the State has a burden of production in the second step merely to

present a facially valid explanation for its strike); Watkins, 245 S.W.3d at 447.

Brown, Phillips, White, Hashaway, and Kyles

At the Batson hearing, the State explained that it stuck all qualified

prospective jurors who ranked themselves as a “3” on their questionnaire.

(RR43:20-21). Question No. 2 on the questionnaire asked: “With reference to the

death penalty, which of the following statements best represents your feelings?”

(RR4-RR34; RR36-RR42; Q. p. 1). A ranking of “3” indicates the following

opinion: “Although I do not believe that the death penalty should ever be imposed,

as long as the law provides for it, I could assess it under the proper set of

53

circumstances.” (RR4-RR34; RR36-RR42; Q. p. 1). The State explained that it

struck every person on the qualified-juror panel that selected number “3,”

including Sheppard Brown (Juror 2A, an African-American male), Percy Phillips10

(Juror 60A, an African-American male), Telli White (Juror 329A, an African-

American female), Dionne Hashaway (Juror 911A, an African-American female),

and Christylynn Kyles (Juror 1133A, an African-American female), Christina

Moore (Juror 271A, a Caucasian female), Laura Luna (Juror 340A, a Caucasian

female), Ronald Drake (Juror 759A, a Caucasian male), and Scot McComas (Juror

1331A, a Caucasian male). (RR43:20-21; Brown, Juror 2A, Q. p.1; Phillips, Juror

60A, Q. p.1; White, Juror 329A, Q. p.1; Hashaway, Juror 911A, Q. p.1; Kyles,

Juror 1133A, Q. p.1; Moore, Juror 271A, Q. p.1; Luna, Juror 340A, Q. p.1; Drake,

Juror 759A, Q. p.1; McComas, Juror 1331A, Q. p.1). The State also intended to

strike Jerry Matlock, (Juror 1500A, a Caucasian male), the last juror in the

alternate pool, on the same grounds. (RR43:21; Matlock, Juror 1500A, Q. p.1).

The State’s reason was grounded in these jurors’ opinion about the death

penalty and is race-neutral. Courts have found similar grounds as facially neutral.

See, e.g., Mathis v. State, 67 S.W.3d 918, 924-25 (Tex. Crim. App. 2002) (holding

prosecutor’s explanations—that he struck a juror because she was in favor of the

10

Percy Phillips ranked himself as a three and a five on this question. (RR43:20-21; Phillips,

Juror 60A, Q. p.1).

54

death penalty only in two specified circumstances and she felt the death penalty

was imposed too frequently—were facially race-neutral).

Kimberly Houston

At the Batson hearing, the State explained that it exercised a peremptory

challenge against Houston because “she’s an attorney and we don’t think that

attorneys are generally good on jury panels.” (RR43:21). When the State indicates

that it challenged a prospective juror based on that person's type of employment

and that the State has had poor success with that type of worker, the reason is a

race-neutral explanation for exercising the peremptory strike. Middleton v. State,

187 S.W.3d 134, 142 (Tex. App.—Texarkana 2006, no pet.) (citing Barnes v.

State, 855 S.W.2d 173, 174 (Tex. App.—Houston [14th Dist.] 1993, pet. ref'd)).

Shirley Wilson

At the Batson hearing, the State explained that it exercised a peremptory

challenge against Wilson because the State did not believe that Wilson was

qualified. (RR43:20). Indeed, during individual voir dire, the State challenged

Wilson for cause because Wilson vacillated on Special Issue No. One. (RR8:225-

26). The State questioned Wilson at length on this issue. (RR8:205-09). She

testified that she could never answer Special Issue No. 1 “yes” because she

believes there is no way to predict an individual’s future actions. (RR8:205-09).

When questioned by the defense, Wilson initially repeated her earlier position,

55

stating “I can’t see what you can really show to me [to prove] what the future is

going to hold. I’m not for sure if I could answer that yes[.]” (RR8:220). Then, in

contradiction, she said she could answer the first special issue in the affirmative.

(RR8:221). The State’s challenge for cause was denied. (RR8:227). Given

Wilson’s vacillation regarding Special Issue No. One, the State chose to

peremptorily strike Wilson. Vacillating is a race-neutral reason for exercising a

peremptory strike. See Cook v. State, 858 S.W.2d 467, 472 (Tex. Crim. App.

1993) (finding no clear error in trial judge’s conclusion that the State’s peremptory

strike of a vacillating juror was a satisfactory race-neutral reason).

Conclusion

The record supports all of the State’s proffered race-neutral explanations for

exercising peremptory strikes against the seven prospective minority jurors.

Therefore, the trial court did not clearly err in finding that the State satisfied its

step-two burden of production to tender facially race-neutral explanations for its

peremptory strikes. See Watkins, 245 S.W.3d at 451.

III. Appellant has not established by a preponderance of the evidence

that the strikes were the product of racial discrimination

Appellant has not shown purposeful discrimination by the State. Here, the

defendant has the burden to persuade the trial court that the prosecutor’s

explanations for the State’s strikes were incredible or disingenuous. Watkins, 245

S.W.3d at 457. The focus of the Batson inquiry in this stage is on the genuineness,

56

not reasonableness, of the asserted non-racial motive. Nieto v. State, 365 S.W.3d

673, 676 (Tex. Crim. App. 2012). The question of pretext is a question of fact for

the trial court to resolve, subject to reversal on appeal only for clear error.

Watkins, 245 S.W.3d at 457.

Appellant primarily contends that the State’s strikes must have been racially

motivated because these jurors were qualified jurors and had some characteristics

potentially favorable to the State’s position on the death penalty. (Appellant’s Br.

at 36, 38, 39, 41, 42, 43, 45, 47). The jurors’ qualifications for jury service are

irrelevant to the analysis, however. Factors relevant to determining whether

purposeful discrimination has been proven include the following:

1. whether the State utilized its option to shuffle the jury panels

in a manner that supported an inference of race

discrimination;

2. whether the prosecutor’s office trying the case followed a

formal policy to exclude minority venire members from jury

service which was known to at least one of the prosecutors

at trial;

3. whether the State exercised its peremptory challenges to

eliminate a far greater proportion of minority venire

members than non-minority venire members;

4. whether the reasons the State asserted for eliminating the

minority venire members in question appeared to apply

equally well to many non-minority venire members whom

the State did not challenge; and

5. whether the State directed questions expressly designed to

elicit grounds for peremptory challenges disproportionately,

in a manner that suggested an intent to single out minority

venire members for elimination.

57

Watkins, 245 S.W.3d at 448-49 (relying on Miller-El v. Dretke, 545 U.S. 231, 240-

64, 266 (2005)). This Court looks to the collective and cumulative impact of these

non–exclusive factors in determining whether an inference of racial discrimination

is so powerful that it overcomes the deference given to trial courts. See id. at 449,

457.

An analysis of these factors demonstrates that Appellant’s claim of

purposeful discrimination lacks merit.

1. Jury Shuffle

There is no evidence of jury shuffling in this case. The parties selected the

group of qualified jurors from a June 21, 2013 special venire. (RR4). Appellant

does not assert or demonstrate that the venire was shuffled or otherwise arranged in

a manner to decrease the possibility of a minority member.

2. Formal Policy Prohibits Discrimination

The Dallas County District Attorney’s office’s notorious formal policy of

excluding minorities is a relic of a bygone era. It is common knowledge that the

office policy of the last several years not only forbids such discrimination, it

requires an investigation into sustained Batson challenges and authorizes discipline

ranging from reprimand to termination. The State asks this Court to take judicial

notice of this well-known fact. Tex. R. Evid. 201.

58

3. Proportionality of Strikes

Appellant argues that even one racially motivated peremptory strike violates

Batson and he makes no effort to demonstrate a pattern of discriminatory strikes.

He does not identify the size or racial makeup of the pool of qualified venire

members. Nor does he analyze the number of strikes used by either side or how

they were used. He merely argues that the State used 7 of its 12 peremptory strikes

to eliminate 60% of the African-Americans on the qualified prospective jury panel,

a statistic with which the State disagrees. 11 (Appellant’s Br. at 50).

For statistical evidence to be relevant, data concerning the entire pool is

necessary. See Medellin v. Dretke, 378 F.3d 270, 278 (5th Cir. 2004). By itself,

the number of African Americans struck is an irrelevant statistic. Woodward v.

Epps, 580 F.3d 318, 339 (5th Cir. 2009) (holding that the State’s striking 100% of

the black jurors alone does not support a finding of discrimination and does not

show any disparity in relation to the non-minority jurors).

The data evinces no discriminatory intent by the State. The panel of

qualified venire members consisted of 44 people. Of these, 12 (27%) were

African-American, 27 (61%) were Caucasian, 4 (9%) were Hispanic, and 1 (2%)

declined to indicate his race. The State exercised 15 peremptory strikes.

11

Appellant states in his brief that the State “used 7 of its 12 peremptory strikes to eliminate 60%

of the African-Americans on the qualified prospective jury panel.” (Appellant’s Br. p. 50). In

fact, the State exercised all 15 of its statutorily authorized peremptory strikes. The State

presumes that Appellant’s reference to the State’s use of 12 strikes is a clerical error.

59

(RR43:8-19). Seven of those 15 strikes (47%) were used on African-Americans, 7

(47%) were used on Caucasians, and 1 (6%) was used on a Hispanic juror.

(RR43:8-19). Appellant exercised 17 peremptory strikes. (RR43:8-19). Of his 17

strikes, 2 were used on African-American jurors, 11 were used on Caucasian

jurors, and 3 were used on Hispanic jurors. (RR43:8-19). The result was a 12-

member jury consisting of 3 African-American jurors and 9 Caucasian jurors, with

2 Caucasian alternate jurors.

The State’s use of 7 strikes on African-American venire members is not

definitive of the inquiry in Batson’s third step; instead, a reviewing court must look

at all relevant factors. See Watkins, 245 S.W.3d at 452 (upholding the trial court,

despite the State’s disproportionate use of 6 of its 11 peremptory challenges

against a racial group making up only 22% of the venire). Of the 44 venire

members who could conceivably be chosen for the jury, 12 (27%), were African-

American. A random selection would yield either 3 or 4 African-American jurors

in the 14 jurors selected (12 plus 2 alternates) (or 27% of fourteen, equaling 3.78

jurors). See Watkins, 245 S.W.3d at 451-52 (holding a random selection from a

22% African-American venire would yield 2 or 3 black jurors because 22% of 12

jurors, plus 1 alternate, was 2.86). This jury panel had 3 African-American jurors.

Thus, 27% of the qualified jurors were African-American and 25% of the 12-

person jury was African-American. This jury had the expected amount of African-

60

American members as would be expected from a random selection of the 44

qualified jurors. Statistical analysis simply fails to show any racial discrimination.

4. Comparative Analysis

Appellant contends on appeal that the prosecutor’s stated reasons are a

pretext for racial discrimination because non-minority jurors with similar responses

or characteristics were not struck by the State. (Appellant’s Br. at 50). At the

Batson hearing, however, defense counsel failed to provide a comparative analysis

on the jurors. (RR43:21-22). Counsel did not cross-examine the prosecutor about

her reasons for not striking any similarly situated venire members. (RR43:20-23).

As such, the prosecutor had no opportunity to respond to counsel’s allegations.

Appellant should not be permitted to raise claims of disparate treatment for the first

time on appeal. By failing to properly present this claim at trial, he denied the

prosecutor the opportunity to create a record on the prosecutor’s strategy, and he

denied the trial court an opportunity to rule on the claim.

Whether a prosecutor intended to discriminate on the basis of race is a

question of historical fact properly decided in the trial courts. See Hernandez v.

New York, 500 U.S. 352, 367-69 (1991). State procedural rules demand that

allegations of disparate treatment by the prosecutor be raised in the trial court, so

that they can be properly answered by the State and decided by that court. See

Tex. R. App. P. 33.1(a); Watkins, 245 S.W.3d at 457-58 (Keller, P.J., concurring);

61

Young v. State, 826 S.W.2d 141, 147-49 (Tex. Crim. App. 1991) (Campbell, J.,

dissenting).

The State acknowledges this Court’s majority opinion in Young that a non-

capital defendant is not required to raise a comparative analysis in the trial court to

have evidence of such considered on appeal. Young, 826 S.W.2d at 145-46. The

Fifth Circuit has applied Young to a capital case and criticized this Court’s

inconsistency in its application of the contemporaneous objection rule to Batson

claims in capital cases. Reed, 555 F.3d at 370.

This Court should explicitly overrule Young. See generally Watkins, 245

S.W.3d at 457-58 (Keller, P.J., concurring); Young, 826 S.W.2d at 147-49

(Campbell, J., dissenting). Its majority—and the courts that rely on it—view the

comparative analysis as merely an appellate argument that can be fairly addressed

for the first time on appeal. Young, 826 S.W.2d at 146. In truth, it is a factual

allegation of unfair treatment between jurors. If properly raised in the trial court,

the prosecution’s response may provide additional facts for the appellate court to

consider when reviewing the Batson ruling. If raised at trial successfully, the trial

court can cure the error before trial even begins. If not raised at trial, the

prosecutor’s mental process and the trial judge’s credibility decision concerning

the non-strikes are simply omitted from the record. Jurors are not products of a set

of cookie cutters, and the unexplained decision not to strike a non-minority juror

62

who shares one trait in common with a minority juror is held against the State on

appellate review. See, e.g., Miller-El, 545 U.S. at 244 (stating, “If, indeed, Fields’s

thoughts on rehabilitation did make the prosecutor uneasy, he should have worried

about a number of white panel members he accepted with no evident

reservations.”) (emphasis added). The prosecutor’s explanation of her voir dire

strategy and the trial court’s ruling on the strategy is critical to a fair appellate

review.

At the very least, a prosecutor should enjoy favor on appeal when the matter

is not raised at trial, much like the presumption against a finding of ineffective

assistance of defense counsel. In claims regarding violations of a client’s

constitutional right to counsel, this Court has stated that “counsel should ordinarily

be accorded an opportunity to explain her actions before being condemned as

unprofessional and incompetent.” Bone v. State, 77 S.W.3d 828, 836 (Tex. Crim.

App. 2002). A prosecutor’s credibility is the heart of Batson review, and she

should be accorded no less of an opportunity to explain her actions.

This Court should conclude that the comparative analysis is not preserved

for review or, alternatively, presume that the comparative analysis favors the

prosecutor absent affirmative evidence on the record.

In any event, Appellant has wholly failed to establish that the potential jurors

who are the focus of his Batson challenge were similarly situated to non-minority

63

potential jurors who were not struck.

Brown, Phillips, White, Hashaway, and Kyles

As argued above, the State struck each and every qualified prospective juror

regardless of race who ranked him/herself as a “3,” indicating a belief that,

“Although I do not believe that the death penalty should ever be imposed, as long

as the law provides for it, I could assess it under the proper set of circumstances.”

(RRR43:20-21). The State struck all 9 “3s” on the qualified prospective juror

panel. (RR43:20-21). Appellant points to no evidence to the contrary. He

cannot show disparate treatment of Brown, Phillips, White, Hashaway, and Kyles

compared to accepted non-minority veniremembers. As such, Appellant has failed

to show that the prosecutor’s explanation was a pretext for discrimination.

Kimberly Houston

The State explained that it struck Houston because she is an attorney12 and

because “we don’t think that attorneys are generally good on jury panels.”

(RR43:21; Houston, Juror 27A, Q. p.1). Houston was the only attorney on the

qualified-juror panel. (RR43:21). As such, this rationale was a unique explanation

for the strike, which applied to no other prospective juror. Importantly, during

12

The State expressed this same opinion during the voir dire of another juror, Sheppard Brown.

In explaining the terms used in the special issues, the prosecutor commented that “That’s a whole

lot of legal words. I’m going to try to talk to you about it in terms that - - that anybody would

get, because we’re - - we’re not putting lawyers on this jury.” (RR5:30). She also stated that,

“We’re going to put air conditioning techs and people who don’t know the law [on the jury].

And there’s a good reason for that, by the way. Lawyers are not always the smartest people in

town.” (RR5:30).

64

the Batson hearing, defense counsel did not challenge the prosecutor’s stated

reason. Whether Appellant’s counsel personally felt such information should be

the basis for a strike, is irrelevant; nothing indicates this was a pretext for

discrimination. He cannot show that Houston was treated differently from non-

minority venire members who the State accepted.

Shirley Wilson

The State struck Wilson because it did not believe that she was a qualified

juror. During the State’s questioning, Wilson stated repeatedly that she did not

believe that the State could ever present proof beyond a reasonable doubt that a

defendant would be a future danger. The following exchange took place:

[Prosecutor]: Now we’re talking about punishment, and that Special

Issue Number 1, about what he’s going to do in the future, because

you can see how that’s asking the jury to decide if this person is going

to continue to constitute a continuing threat, if he’s going to continue

to commit criminal acts of violence. Do you see that?

[Wilson]: Yes, I see it.

[Prosecutor]: I mean, basically we’re asking you to look into the

future and decide whether it’s more likely than not he’s going to be a

continuing threat to society. How are you going to decide that?

[Wilson]: I can’t decide that.

[Prosecutor]: You can’t decide that?

[Wilson]: Huh-uh.

[Prosecutor]: Is there anything that I could do to prove to you beyond

a reasonable doubt - -

65

[Wilson]: No.

[Prosecutor]: - - that a person is going to do something in the future?

[Wilson]: No.

[Prosecutor]: Or is more likely than not going to do something in the

future?

[Wilson]: You can’t.

[Prosecutor]: And why is that?

[Wilson]: Because we just can’t determine what the future going [sic]

to be and what that person is going to do.

[Prosecutor]: Okay. So there’s - - there’s nothing that I could do, no

evidence I could bring to you - -

[Wilson]: No.

[Prosecutor]: - - that would get you to answer Special Issue Number 1

yes?

[Wilson]: No. I don’t think there’s any - - you know, we just don’t

know. We don’t know what a person would do, whether it’s good or

bad in the future.

[Prosecutor]: Sure. I mean, people can change?

[Wilson]: Yes, they can.

[Prosecutor]: But you don’t know 100 percent, but you’re telling me

you - - there’s no way I’m going to be able to tell you - - or bring to

you proof to convince you that it’s more likely than not that a person

is going to do something in the future?

[Wilson]: I just don’t - - no, I don’t think there’s any evidence just - -

you can bring and just - - to tell me what the future hold for that

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person, if that person going to be able to do it or not, no.

[Prosecutor]: Okay. And you understand that - - that the law would -

- well, let me rephrase that. I guess - - I mean, I totally see where

you’re coming from. We don’t have a crystal ball.

[Wilson]: Huh-uh.

[Prosecutor]: But in a trial situation there’s not - - no evidence,

there’s nothing I could present to you to convince you of what the

future is going to hold for somebody?

[Wilson]: No.

[Prosecutor]: So you’re automatically going to answer that Special

Issue Number 1 no because there’s nothing I can do. You’re always

going to say no to Special Issue Number 1? Do you see what that

question is asking?

[Wilson]: Let me just read it again. Maybe I’m - - I mean, maybe

I’m - - I’m just saying I just don’t see how you can - - how - - I’m not

saying you, but who can present what a person is going to do in the

future when it come [sic] down to criminal acts.

[Prosecutor]: Sure. And I’m not arguing with you. Please don’t - -

please don’t think that.

[Wilson]: So I guess I have to answer no.

[. . . ]

[Prosecutor]: Okay. And there’s nothing I assume that I could say to

change your mind about that?

[Wilson]: Probably not.

(RR8:205-08). The prosecutor questioned Wilson at length on this issue and

Wilson maintained her stance. (RR8:205-08).

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During questioning by the defense, counsel asked Wilson whether she could

“keep an open mind to Special Issue Number 1 and wait until you hear all the

evidence before you decide what the appropriate answer is[.]” (RR8:219). Wilson

responded that, now that she understood that special issue, she would “have to just

wait before I could just say this person is no good to nothing, anymore, period,

there’s no chance.” (RR8:219). But that line of questioning did not ask whether

she could ever find a defendant to be a future danger. This question simply asked

whether she could keep an “open mind.” When defense counsel specifically asked

whether she could answer Special Issue No. 1 “yes,” Wilson maintained, as she did

under questioning by the State, that she could not say that she would do so.

(RR8:220). She stated that “I can’t see what you can really show to me what the

future is going to hold. I’m not for sure if I could answer that yes[.]” (RR8:220).

Very shortly thereafter, however, she gave a response that seemed to indicate that

she changed her mind and could answer Special Issue No. 1 in the affirmative:

“Yes, I guess, if I’m presented with the evidence and here it is [. . .] then I would

have to say yes, now that I understand the question better.” (RR8:221).

Importantly, a review of Wilson’s testimony under questioning by the

defense indicates that Wilson may have been confused about the fact that in order

for the death penalty to be assessed, she would have to answer the first special

issue “yes.” And, that in order to answer special issue No. 1 “yes,” she would

68

have to find a defendant to be a future danger. Defense counsel asked Wilson

whether she understood that life without the possibility of parole and death are the

only two possible punishments. (RR8:215). She did. (RR8:215). Then, he asked

whether she understood that “in order for someone to receive the death sentence,

you would have to answer Special Issue Number 1 yes?” (RR8;216-17). Wilson

said, “No. I read that over and over, but I didn’t know I needed to answer yes in

order for a person to receive the death penalty[.]” (RR8:217). They discuss the

terms “probability” and “criminal acts of violence.” (RR8:217-20). Then, she

reiterates the position she took when under questioning by the State, “I can’t see

what you can really show to me [to prove] what the future is going to hold.”

(RR8:220).

Wilson’s responses indicate that she was either unwilling or unable to

answer Special Issue No. 1 in the affirmative or that she was a vacillating juror.

Since the trial court denied the State’s challenge, the State exercised a peremptory

challenge. Indeed, the State struck all jurors that it had unsuccessfully challenged

for cause. Of the 44 qualified jurors, the State unsuccessfully challenged for cause

4 potential jurors: Wilson (Juror 196A, an African-American female), Chad Davis

(Juror 265A, a Caucasian male), Ronald Drake (Juror 759A, a Caucasian male),

and Wanda Benjamin (Juror 1369A, an African-American female). Davis was

later excused (RR31:5) as was Benjamin (RR41:28). The State struck Drake.

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(RR43:12). Appellant has failed to show Wilson was treated differently from

accepted non-minority venire members.

Conclusion

Appellant has wholly failed to show that Jurors Brown, Phillips, White,

Hashaway, Kyles, Houston, or Wilson were similarly-situated to non-minority

jurors that were not struck by the State.

5. Disparate Questioning

Appellant points to no instances of disparate questioning by the State. Cf.

Miller-El, 545 U.S. at 256-57 (prosecutors used a graphic script when describing

the death penalty to African-American jurors who were ambivalent to the death

penalty more often than with white jurors who also were ambivalent). Nor is any

disparate questioning apparent in the record.

Conclusion

Appellant has not established by a preponderance of the evidence that the

State’s exercise of its peremptory challenges against 7 African-Americans was the

product of racial discrimination. Appellant has not shown that the State’s

explanations did not apply equally to non-minority venire members that the State

did not challenge, that the State directed questions expressly designed to elicit

grounds for peremptory challenges disproportionately, or that a formal policy

excludes minorities from jury service. The record before this Court supports the

70

trial court’s resolution of the fact question of pretext. Consequently, the trial court

did not err in denying Appellant’s Batson challenges. See Watkins, 245 S.W.3d at

456-57.

Issues 1 through 7 should be overruled.

STATE’S RESPONSE TO ISSUE NOS. 8 THROUGH 19: THE TRIAL COURT DID NOT ERR IN

GRANTING THE STATE’S CHALLENGES FOR CAUSE.

In Issues 8 through 19, Appellant contends that the trial court erred in

granting the State’s challenges for cause against potential jurors Mary Boulos,

Judith McDaniel, Terry Plank, and Floyd Stanmore. (Appellant’s Br. pp.51-64).

He contends the exclusion of these jurors and the failure of the trial court to allow

him to voir dire these jurors violated article 35.16 of the Code of Criminal

Procedure as well as his right to counsel under the federal and state constitutions.

See U.S. CONST. amends VI & XIV; Tex. Const. art. I, § 10; Tex. Code Crim.

Proc. Ann. art. 35.16 (West 2006). Appellant’s contentions lack merit and should

be overruled.

Applicable Law

Article 35.16(b) of the Texas Code of Criminal Procedure provides as

follows:

A challenge for cause may be made by the State for any of the following

reasons:

1. That the juror has conscientious scruples in regard to the infliction

of the punishment of death for crime, in a capital case, where the

71

State is seeking the death penalty.

2. That he is related within the third degree of consanguinity or

affinity as determined under Chapter 573, Government Code, to

the defendant; and

3. That he has a bias or prejudice against any phase of the law upon

which the State is entitled to rely for conviction or punishment.

Tex. Code Crim. Proc. Ann. art. 35.16(b). A “bias against the law” is the refusal to

consider or apply the relevant law. Sadler v. State, 977 S.W.2d 140, 142 (Tex.

Crim. App. 1998). The test is whether the bias or prejudice would substantially

impair the prospective juror’s ability to carry out his oath and instructions in

accordance with the law. Threadgill v. State, 146 S.W.3d 654, 667 (Tex. Crim.

App. 2004).

On appeal, a reviewing court will overturn the trial court's ruling on a

challenge for cause only if it clearly abused its discretion. Gonzales v. State, 353

S.W.3d 826, 831 (Tex. Crim. App. 2011). The reviewing court gives great

deference to the trial court’s decision on a challenge for cause because the trial

judge was in the best position to observe the venire member during voir dire. Id.

When the record reflects that a venire member vacillated or equivocated on her

ability to follow the law, the reviewing court must defer to the trial judge. Id;

Gardner v. State, 306 S.W.3d 274, 295 (Tex. Crim. App. 2009).

72

Analysis

The trial court did not err in granting the State’s challenges for cause against

prospective jurors Mary Boulos, Judith McDaniel, Terry Plank, and Floyd

Stanmore.

Mary Boulos

On her questionnaire, Mary Boulos wrote that she is in favor of the death

penalty but that she does have “moral, religious, or personal beliefs that would

prevent [her] from sitting in judgment of another human being[.]” (Boulos, Juror

285A, Q. p. 1). In fact, on that questionnaire, Boulos made statements in four

places in which she indicated that she does not believe she has the right to judge

another human being: “I don’t feel that I have the right to judge someone’s future”

(RR11:18; Boulos, Juror 285A, Q. p.2); the best argument against the death

penalty is “judging whether a person has the right to live or not” (Boulos, Juror

285A, Q. p. 2); “still don’t have the right to judge whether someone lives or dies”

(Boulos, Juror 285A, Q. p.2); and “I do not feel that I have the right to judge

whether or not someone is given the death penalty or life.” (Boulos, Juror 285A,

Q. p.18).

During voir dire, the prosecutor probed Boulos as to how she felt about

sitting in judgment and answering questions in such a way that a death sentence

would be imposed. (RR11:17-18). Boulos responded she was not comfortable

73

because “[she’s] not somebody to sit there and judge somebody else[.]”

(RR11:18). The prosecutor tried to get a definitive answer regarding Boulos’

ability to sit in judgment. The following exchange took place:

[Prosecutor]: Okay. And like I told you in the beginning, the law is

not going to require - - we’re not going to require that you sit in

judgment of an individual in this situation - -

[Boulos]: Yeah.

[Prosecutor]: - - if it’s going to do violence to your conscience.

[Boulos]: Yeah.

[Prosecutor]: If it is something you cannot do because of personal,

moral, or religious reasons; is that where you stand?

[Boulos]: Yes.

(RR11:18). The State challenged Boulos for cause. (RR11:19). Appellant

objected and stated that Boulos had not said “that her feelings would impair her

ability to answer the questions and follow the law.” (RR11:19-20). The trial

court granted the State’s challenge. (RR11:20). The totality of Boulos’ voir dire

shows Boulos could not sit in judgment of another individual and her statements

support the trial court’s decision. To the extent, if any, that some of Boulos’ other

remarks could be interpreted as contradictory, the trial court was the fact finder

during voir dire and, thus, free to resolve her conflicting answers in the State’s

favor. See King v. State, 29 S.W.3d 556, 568 (Tex. Crim. App. 2000) (particular

deference is given to the trial court’s conclusion that venire member cannot follow

74

law when venire member’s answers are vacillating, unclear, or contradictory). To

conclude otherwise would controvert this Court’s policy of encouraging trial

court’s to liberally grant challenges for cause rather than err by denying a

challenge on a close question. Jones v. State, 982 S.W.2d 386, 394 (Tex. Crim.

App. 1998).

The record reflects that the State challenged Boulos for cause and that the

trial court granted the State’s challenge. (RR11:19-20). Contrary to the statements

in Appellant’s brief, there is no evidence that the trial court excused Boulos sua

sponte.

Finally, on appeal, Appellant contends that he was denied the opportunity to

question Boulos. (Appellant’s Br. p. 57). During voir dire when the State

challenged this juror, however, Appellant did not request an opportunity to

question Boulos. (RR11:20). See Tex. Code Crim. Proc. Ann. art. 35.17, § 2

(stating that “In a capital felony case . . . on demand of the State or defendant,

either is entitled to examine each juror on voir dire individually and apart from the

entire panel, and may further question the juror on the principles propounded by

the court.”). As a prerequisite to presenting a complaint for appellate review,

however, the record must show that the complaint was made to the trial court by a

timely request, objection, or motion and that the trial court either (1) ruled on the

request, objection, or motion; or (2) refused to rule on the request, objection, or

75

motion, and the complaining party objected to the refusal. Tex. R. App. P. 33.1

(a). Given Appellant’s failure to request the opportunity to question Boulos, he

failed to preserve any issue for this Court’s review.

Judith McDaniel

On her questionnaire, Judith McDaniel wrote that she is not in favor of the

death penalty. (McDaniel, Juror 317A, Q. p.1). Among other reasons, she

believes in “the possibility of redemption” and in light of “Craig Watson’s [sic]

push to find those wrongfully convicted,” McDaniel wrote she is against the death

penalty. (McDaniel, Juror 317A, Q. p.1). McDaniel ranked herself as a “3,”

indicating, “Although I do not believe that the death penalty should ever be

imposed, as long as the law provides for it, I could assess it under the proper set of

circumstances.” (McDaniel, Juror 317A, Q. p.1). She noted, however, “Maybe I

should circle #5[,]” which provides that “I could never, under any circumstances,

return a verdict which assessed the death penalty.”

Additionally, McDaniel wrote that although it is improving, she does not

believe that the death penalty is applied fairly in Dallas County. (McDaniel, Juror

317A, Q. p.4). She wrote that the death penalty is used too often in Texas.

(McDaniel, Juror 317A, Q. p.4).

During voir dire, McDaniel reiterated her general opposition to the death

penalty and gave answers suggesting considerable discomfort in participating in a

76

process where an individual may be sentenced to death. McDaniel testified that

even though her opinion about the death penalty has wavered over the years, “I

really doubt that I - - I could be in favor of the death penalty.” (RR11:101).

When asked whether she could participate in death penalty decision, she stated, “I

don’t want to. I don’t - - I don’t think I can.” (RR11:104). The prosecutor

explained the death penalty is not automatic. (RR11:105). The prosecutor

explained the special issues and asked McDaniel if she could answer them in such

a way that would result in a death sentence. (RR11:105-07). McDaniel testified

that she “can’t honestly say, but I am pretty sure I would not go for the death

penalty.” (RR11:107). When finally pinned down, McDaniel testified she could

not guarantee the ability to set aside her personal feelings. (RR11:121). The

following exchange took place:

[Prosecutor]: I’m going to - - I - - “I don’t think” and “maybe” and

“probably” are not - - are not words that lawyers are very good at

accepting, and I apologize, but the record has to be very clear, so I’m

going to ask it a different way. You don’t think you could. I’m going

to turn that around and ask you, can you guarantee both sides of this,

the State and the Defense, that you could set aside your personal

feelings and be a juror in this case, even if it resulted in the death

sentence?

[McDaniel]: No, I can’t guarantee it.

[Prosecutor]: Thank you.

(RR11:121). The State challenged McDaniel for cause, which was granted over

Appellant’s objection, based on the fact that “she would not be able to make that

77

decision or at minimum could not guarantee us that she could set aside her

personal feeling and assess a sentence that may result in execution.” (RR11:122).

A venireperson may not be excused for her general opposition to the death

penalty. Witherspoon v. Illinois, 391 U.S. 510, 522-23 (1968); Rachal v. State, 917

S.W.2d 799, 810 (Tex. Crim. App. 1996). A veniremember is challengeable for

cause, however, if his beliefs against capital punishment would prevent or

substantially impair the performance of his duties as a juror in accordance with the

court's instructions and the juror's oath. See Colburn v. State, 966 S.W.2d 511, 517

(Tex. Crim. App. 1998). A juror must be able to set aside her personal

preferences and biases to consider as death eligible all those defined as death

eligible by section 19.03 of the penal code and article 37.071 of the criminal

procedure code. Rachal, 917 S.W.2d at 812.

Clearly, the totality of McDaniel’s voir dire testimony demonstrates that her

beliefs about capital punishment would prevent or substantially impair the

performance of her duties as a juror as required by law. She had a bias against the

law governing a defendant’s eligibility for the death penalty. The record supports

the trial court’s decision to grant the State’s challenge. See King, 29 S.W.3d at

568. To conclude otherwise would controvert this Court’s policy as stated earlier.

Jones, 982 S.W.2d at 394.

78

Appellant’s contention that he was denied the opportunity to question

McDaniel lacks merit. (Appellant’s Br. p. 59). During voir dire, when the State

challenged this juror, Appellant did not request an opportunity to question her.

(RR11:122). See Tex. Code Crim. Proc. Ann. art. 35.17, § 2. As such, any claim

of that nature is not preserved for this Court’s review. Tex. R. App. P. 33.1 (a);

Pena v. State, 285 S.W.3d 459, 463 (Tex. Crim. App. 2009).

Terry Plank

In his questionnaire, Terry Plank wrote he is not in favor of the death

penalty. (Plank, Juror 320A, Q. p.1). He wrote, “I feel no one has the right to

take the life of another, including the State.” (Plank, Juror 320A, Q. p.1). In six

separate places, Plank wrote that he does not believe in the death penalty. (Plank,

Juror 320A, Q. p.1, 2, 3). In one instance, he described the death penalty as “state

sanctioned murder.” (Plank, Juror 320A, Q. p.2). In contradiction, Plank ranked

himself as a “3,” indicating that “Although I do not believe that the death penalty

should ever be imposed, as long as the law provides for it, I could assess it under

the proper set of circumstances.” (Plank, Juror 320A, Q. p. 1).

During voir dire, Plank testified he was “ambivalent” about the death

penalty. (RR12:24). Ultimately, he conceded that he could not guarantee that he

could set aside his personal feelings about the death penalty and follow the law.

(RR12:29). The following exchange took place:

79

[Prosecutor]: We’ve got to have people whose feelings are the death

penalty is appropriate in some cases, based on the evidence. And

yours is never.

[Plank]: Right.

[Prosecutor]: And so I would - - I would tell you that you’d be a great

juror on a case where the punishment range was 5 to 99 or life or even

on a capital murder case where we weren’t seeking the death penalty.

Sounds to me like you could give the State a fair trial in the first part

of the case on guilt/innocence, no issues there, but it’s the penalty

phase that causes you some concerns because of your personal

beliefs?

[Plank]: Absolutely.

[Prosecutor]: And if I had to ask you for today for a guarantee those

[beliefs] wouldn’t interfere, you couldn’t guarantee me that?

[Plank]: I don’t - - I know I disagree, so it’s hard to - - it’s hard to say

that I would just all of a sudden agree.

[Prosecutor]: Right. And - - and you don’t have to - - I’m not trying

to change your opinion about the death penalty.

[Plank]: Right.

[Prosecutor]: Just because you don’t agree with it, doesn’t necessarily

disqualify you from the jury pool. But you’ve got to be able to

promise me today and guarantee me today that your feelings against

the death penalty would not interfere with your ability to follow the

law, listen to the evidence, and base your verdict only on the

evidence, even if that meant that the death penalty was imposed. And

you’ve kind of already told me that this isn’t - - this isn’t really for

you, the death penalty; is that right?

[Plank]: I believe so.

[Prosecutor]: This won’t be the last jury summons you get, I promise.

And hopefully the next one wouldn’t be on a case where the death

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penalty was at issue. And I know it’s hard to say what you could or

couldn’t do in the future because you’ve never been put in those

shoes, but I’m telling you, you don’t have to be put in that position, if

you can’t guarantee me you could - - you could do it.

[Plank]: Right. I don’t think I can guarantee anything, not - - not

knowing, you know - - not ever having been in that position before.

(RR12:27-29). The State challenged Plank for cause because “he cannot guarantee

the State that he would be able to follow the law and base his verdict on the

evidence because of his strong opposition to the death penalty.” (RR12:29). The

totality of Plank’s voir dire testimony clearly demonstrates his beliefs about capital

punishment would prevent or substantially impair his ability to follow the law.

See Colburn, 966 S.W.2d at 517. The record supports the trial court’s decision to

grant the State’s challenge. See King, 29 S.W.3d at 568. To conclude otherwise

would controvert this Court’s policy as stated earlier. Jones, 982 S.W.2d at 394.

Appellant argues that he was denied the opportunity to question Plank.

(Appellant’s Br. p. 61-62). After the State challenged Plank for cause, Appellant

requested the opportunity to question him. (RR12:30). The judge said that he

would “give [the defense] a chance,” but that the court “[didn’t] think he’s

qualified.” (RR12:30). Then he granted the State’s challenge. (RR12:30).

Appellant objected. (RR12:30). He did not, however, renew his request to

question Plank as the court had previously said it would allow. (RR12:30).

Instead, he “object[ed] to not being able to rehabilitate him.” (RR12:30).

81

Any error in denying Appellant’s request to question Plank is harmless. See

Tex. R. App. P. 44.2(b); Jones v. State, 982 S.W.2d 386, 391-92 (Tex. Crim. App.

1998). With regard to the erroneous excusal of a venire member, reversal is

required if the defendant was deprived of a lawfully constituted jury. See id. at

394. As argued in detail above, the totality of Plank’s voir dire testimony clearly

demonstrates his beliefs about capital punishment would prevent or substantially

impair his ability to follow the law. See Simpson v. State, 119 S.W.3d 262, 266-67

(Tex. Crim. App. 2003) (finding error harmless where “Given the venire member’s

testimony, it is highly unlikely that the appellant would have been able to convince

the juror to say otherwise or that the trial court would have abused its discretion in

dismissing her for cause.”). Moreover, Appellant did not make a proffer of the

questions that he would have asked Plank had he been given the opportunity.

(RR12:29-30). As such, it cannot be determined whether he was denied the

opportunity to properly question Plank. Appellant has failed to show that he was

deprived of a lawfully constituted jury.

Floyd Stanmore

In his questionnaire, Floyd Stanmore ranked himself as a “2,” which

indicates that he believes the death penalty is appropriate in some murder cases and

that he could return a verdict in a proper case which assessed the death penalty.

(Stanmore, Juror 1118A, Q. p.1). Stanmore later contradicted this statement,

82

however, when asked whether there was any reason why he would not want to

serve as a juror in this case. He wrote, “I am not sure that I could vote for the

death [penalty] [sic].” (Stanmore, Juror 1118A, Q. p18). In his questionnaire,

Stanmore stated his concern that the death penalty is applied unfairly to minorities

in Texas, including Dallas County. (Stanmore, Juror 1118A, Q. pp.2-3). Beyond

the death penalty, Stanmore wrote that the biggest problem in our criminal justice

system is that “I do not think that minorities are treated fairly always.” (Stanmore,

Juror 1118A, Q. p.4).

During voir dire, Stanmore reiterated his concern about whether all

defendants receive a fair trial. (RR32:70). He wondered “how many defendants

or convicted individuals have actually been executed who were actually innocent.”

(RR32:70). Stanmore testified as follows:

I can’t [100%] [sic] say that I would be able to sit through the process,

look at all the evidence, and listen to the evidence and still be able to

come to a conclusion that the death penalty is warranted in this case.

(RR32:72). The following exchange took place:

[Prosecutor]: So just from what you’re telling me, it kind of sounds

like, Mr. Stanmore, that you kind of did come in, you know, not

knowing - - most people, when we say the word you come in with a

bias or already come in with a preconceived notion, people think of

that negatively. I’m not saying it in a negative way. But I’m saying it

in such a way that as you sit here right now, you already kind of

know, based on your reservation, how you’d feel or how you would

lean toward, you know, a certain outcome of the trial. Like I said,

maybe this particular case isn’t the one for you. You know, maybe

another type of case that you don’t know as much information about

83

or another type of case that the death penalty is nowhere near it.

Would you say that’s a true statement?

[Stanmore]: That’s pretty close to the truth, yes. I would say, yes.

[Prosecutor]: And that as you sit here right now, and you said you

can’t guarantee, let’s say the State, [100%] that you could base all of

you[r] information on the facts and evidence that come in this case,

that you’re still going to bring with you some of these reservations

because you didn’t leave those at the door, did you?

[Stanmore]: Not at all.

[Prosecutor]: All right.

[Stanmore]: That reservation is about the death penalty itself, not

about conviction.

(RR32:73-74). The prosecutor explained the procedure involved in a cap

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