# Johnson, Matthew Lee > Texas Supreme Court · January 13, 2015 URL: https://www.frixlaw.com/law-library/cases/4038196 ## Case - **Court:** Texas Supreme Court - **Decided:** January 13, 2015 - **Precedential status:** Published - **Opinion:** Opinion - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4038196 ## How later opinions describe it (automated extraction) - holding that the trial court did not abuse its discretion in denying a challenge for cause where, venire member said she would “evaluate a police officer[’s credibility] as she would any other [witness]” - finding evidence of kidnapping and murder of complainant’s wife and son admissible as same transaction contextual evidence as it was necessary to understand the charged offense - holding any error in excusing venireperson was harmless absent any showing that she was excused based on general opposition to death penalty or that any juror was unfit for jury duty - stating that a reviewing court “will not brief appellant’s case for him” - holding that expert witness “fit” his expert knowledge with the particular facts of the case in his evaluation of appellant’s future dangerousness ## Opinion text 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 futu [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4038196. Public record. Not legal advice.