Muhammad, Naim

AP-77,021

COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS

Transmitted 1/30/2015 12:33:47 PM

Accepted 2/3/2015 9:56:16 AM

February 3, 2015 ABEL ACOSTA

Oral Argument is Requested CLERK

No. AP-77,021

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NAIM RASOOL MUHAMMAD,

Appellant

v.

THE STATE OF TEXAS,

Appellee

On appeal from the Criminal District Court No. 4 of Dallas County, Texas

In Cause No. F11-00698

STATE’S BRIEF

Counsel of Record:

Susan Hawk Jaclyn O. Lambert (SBN 24049262)

Criminal District Attorney Rebecca D. Ott (SBN 24074842)

Dallas County, Texas Lisa Smith (SBN 00787131)

Assistant District Attorneys

Frank Crowley Courts Building

133 N. Riverfront Blvd., LB-19

Dallas, Texas 75207-4399

(214) 653-3625

(214) 653-3643 Fax

joconnor@dallascounty.org

Attorneys for the State of Texas

TABLE OF CONTENTS

TABLE OF AUTHORITIES ......................................................................................... VII

STATEMENT REGARDING ORAL ARGUMENT ........................................................ XIII

STATEMENT OF THE CASE....................................................................................... 1

STATEMENT OF FACTS ............................................................................................ 1

A. EVIDENCE AT GUILT-INNOCENCE ............................................................................. 1

B. THE STATE’S PUNISHMENT EVIDENCE ..................................................................... 11

C. APPELLANT’S PUNISHMENT EVIDENCE .................................................................... 26

B. THE STATE’S REBUTTAL EVIDENCE ......................................................................... 33

SUMMARY OF ARGUMENT ................................................................................... 35

ARGUMENT.......................................................................................................... 39

ISSUES 1-20: DENIAL OF DEFENSE CHALLENGES FOR CAUSE ............................................ 39

The Trial Court Properly Denied Appellant’s Challenges for Cause ................ 43

Issue 1: Milton Powell ............................................................................... 43

Issue 1: Milton Powell ............................................................................... 43

Issue 2: Georgia S. Nichols ........................................................................ 48

Issue 3: Dee Jay Earley .............................................................................. 53

Issue 4: Timothy Tinsley ............................................................................ 57

Issue 5: Robin Linn .................................................................................... 61

Issue 6: Charles Stout ................................................................................ 63

Issue 7: Allen Harrington ........................................................................... 64

ii

Issue 8: Anthony Morrison ........................................................................ 67

Issue 9: Enriquez Martinez ........................................................................ 70

Issue 10: Paul Zugelder ............................................................................. 72

Issue 11: David Hornstein.......................................................................... 75

Issue 12: Andrea Griffith ........................................................................... 76

Issue 13: Bradford McCutheon .................................................................. 77

Issue 14: Elvira Corpus .............................................................................. 78

Issue 15: Temple Koestner ........................................................................ 81

Issue 16: Nancy Munn ............................................................................... 85

Issue 17: Ernest Hand ................................................................................ 88

Issue 18: Elizabeth McDaniel ..................................................................... 92

Issue 19: Arleen Jimenez ........................................................................... 93

Issue 20: Dan Blanks.................................................................................. 94

ISSUES 21 AND 22: CONSTITUTIONAL RIGHT TO FAIR AND IMPARTIAL JURY ........................ 96

Appellant Was Not Deprived of a Lawfully Constituted Jury ......................... 96

ISSUES 23-26: ADMISSION OF AUTOPSY PHOTOGRAPHS ................................................ 96

Applicable Law.............................................................................................. 97

The Trial Court Did Not Abuse its Discretion by Overruling Appellant’s

Objections to State’s Exhibits 4-9 and 11-23 ................................................. 98

The Trial Court Did Not Abuse its Discretion by Overruling Appellant’s

Objections to State’s Exhibits 77 and 78 ..................................................... 102

ISSUES 27 AND 41: JURY ARGUMENT....................................................................... 104

iii

Applicable Law............................................................................................ 104

The Trial Court Did Not Err By Overruling Appellant’s Objection to the

State’s Closing Argument at Guilt-Innocence .............................................. 106

The Trial Court Did Not Err by Overruling Appellant’s Objection to the

State’s Closing Argument at Punishment .................................................... 113

ISSUE 28: ADMISSION OF APPELLANT’S STATEMENTS TO CPS WORKER ........................... 119

Applicable Law............................................................................................ 120

Womack’s Testimony Was Properly Admitted ............................................ 123

Any Error Harmless ..................................................................................... 124

ISSUE 29: ADMISSION OF STATE’S EXHIBIT 173.......................................................... 124

Applicable Law............................................................................................ 126

The Trial Court Did Not Abuse its Discretion by Admitting State’s

Exhibit 173 .................................................................................................. 127

Any Error Harmless ..................................................................................... 128

ISSUES 30-32: ADMISSION OF TESTIMONY FROM REFRESHED MEMORY .......................... 129

Applicable Law............................................................................................ 129

Officer Chris Havens .................................................................................... 130

Officer Harold Andrews............................................................................... 132

Officer Brandon Hernandez ........................................................................ 134

ISSUES 33 AND 37: TESTIMONY OF OFFICER DAVID SOLOMON ...................................... 135

The Trial Court Did Not Err, and Appellant Was Not Harmed, by the

Admission of Officer Solomon’s Testimony ................................................. 135

ISSUE 34: TESTIMONY OF WARDEN MELODYE NELSON ................................................ 138

iv

The Trial Court Did Not Err, and Appellant Was Not Harmed, by the

Admission of Warden’s Nelson’s Testimony ................................................ 138

ISSUE 35: DENIAL OF HEARING ON EXTRANEOUS OFFENSES AND BAD ACTS ...................... 141

Applicable Law............................................................................................ 143

Applicability of Mitchell v. State.................................................................. 144

Appellant Has Not Shown an Abuse of Discretion or Harm ......................... 145

ISSUE 36: DENIAL OF MOTION FOR MISTRIAL ............................................................ 148

Applicable Law............................................................................................ 150

The Trial Court Did Not Abuse its Discretion by Denying Appellant’s

Motion for Mistrial ..................................................................................... 150

ISSUES 38 AND 39: CROSS-EXAMINATION OF APPELLANT’S EXPERTS ............................... 151

Applicable Law............................................................................................ 152

Dr. Kellie Gray-Smith ................................................................................... 152

Dr. Gilbert Martinez .................................................................................... 158

Error, If Any, Was Harmless ........................................................................ 161

ISSUE 40: TRIAL COURT’S STATEMENT REGARDING SEQUESTRATION ............................... 162

Applicable Law............................................................................................ 165

The Trial Court’s Statement Was Not an Improper Comment on the

Weight of the Evidence ............................................................................... 166

The Trial Court’s Comment Was Not Calculated to Benefit the State or

Prejudice Appellant ..................................................................................... 169

ISSUE 42: LEGAL SUFFICIENCY OF FUTURE DANGEROUSNESS SPECIAL ISSUE....................... 170

Applicable Law............................................................................................ 170

v

The Evidence is Legally Sufficient to Support the Jury’s Finding of Future

Dangerousness ........................................................................................... 172

ISSUES 43-54: FEDERAL CONSTITUTIONAL ISSUES ....................................................... 179

PRAYER .............................................................................................................. 183

CERTIFICATE OF COMPLIANCE............................................................................ 184

CERTIFICATE OF SERVICE .................................................................................... 184

vi

TABLE OF AUTHORITIES

Cases

Adanandus v. State,

866 S.W.2d 210 (Tex. Crim. App. 1993) .......................................................... 143

Arzaga v. State,

86 S.W.3d 767 (Tex. App.—El Paso 2002, no pet.) .......................................... 146

Becknell v. State,

720 S.W.2d 526 (Tex. Crim. App. 1986) ................................................... 166, 169

Berry v. State,

233 S.W.3d 847 (Tex. Crim. App. 2007) ................................................... 121, 123

Brown v. State,

270 S.W.3d 564 (Tex. Crim. App. 2008) ........................... 111, 112, 113, 118, 119

Broxton v. State,

909 S.W.2d 912 (Tex. Crim. App. 1995) .......................................................... 154

Campbell v. State,

610 S.W.2d 754 (Tex. Crim. App. [Panel Op.] 1980) ........................................ 105

Cantu v. State,

939 S.W.2d 627 (Tex. Crim. App. 1997) .......................................................... 152

Carroll v. State,

916 S.W.2d 494 (Tex. Crim. App. 1996) .......................................................... 152

Carter v. State,

614 S.W.2d 821 (Tex. Crim. App. [Panel Op.] 1981) ........................................ 118

Chambers v. State,

866 S.W.2d 9 (Tex. Crim. App. 1993) .............................................................. 152

Clark v. State,

878 S.W.2d 224 (Tex. App.—Dallas 1994, no pet.) ......................................... 166

vii

Coble v. State,

871 S.W.2d 192 (Tex. Crim. App. 1993) (en banc) .......................................... 105

Colburn v. State,

966 S.W.2d 511 (Tex. Crim. App. 1998) ............................................................ 41

Druery v. State,

225 S.W.3d 491 (Tex. Crim. App. 2007) .......................................................... 173

Escamilla v. State,

143 S.W.3d 814 (Tex. Crim. App. 2004) .......................................................... 182

Estrada v. State,

313 S.W.3d 274 (Tex. Crim. App. 2010) ................................................... 108, 171

Feldman v. State,

71 S.W.3d 738 (Tex. Crim. App. 2002) ......................................................... 40, 41

Flowers v. State,

220 S.W.3d 919 (Tex. Crim. App. 2007) ........................................... 126, 127, 128

Freeman v. State,

340 S.W.3d 717 (Tex. Crim. App. 2011) .......................................................... 105

Gallo v. State,

239 S.W.3d 757 (Tex. Crim. App. 2007) ............................................. 97, 101, 139

Gamboa v. State,

296 S.W.3d 574 (Tex. Crim. App. 2009) ........................................... 147, 151, 168

Gray v. State,

233 S.W.3d 295 (Tex. Crim. App. 2007) ............................................................ 96

Guidry v. State,

9 S.W.3d 133 (Tex. Crim. App. 1999) .............................................................. 165

Hawkins v. State,

135 S.W.3d 72 (Tex. Crim. App. 2004) ............................................................ 150

viii

Hoang v. State,

997 S.W.2d 678 (Tex. App.—Texarkana 1999, no pet.)............................ 166, 167

Human v. State,

749 S.W.2d 832 (Tex. Crim. App. 1988 ........................................................... 127

Jackson v. State,

992 S.W.2d 469 (Tex. Crim. App. 1999) .......................................................... 145

Keeton v. State,

724 S.W.2d 58 (Tex. Crim. App. 1987) ............................................................ 171

Kemp v. State,

846 S.W.2d 289 (Tex. Crim. App. 1992) ........................................... 143, 145, 147

Linder v. State,

828 S.W.2d 290 (Tex. App.—Houston [1st Dist.] 1992, pet. ref’d) .................. 111

Long v. State,

823 S.W.2d 259 (Tex. Crim. App. 1991) .......................................................... 101

Mann v. State,

13 S.W.3d 89, 94 (Tex. App.—Austin 2000), aff'd, 58 S.W.3d 132, (Tex. Crim.

App. 2001) ...................................................................................................... 146

McCoy v. State,

877 S.W.2d 844 (Tex. App.—Eastland 1994, no pet.) .............................. 129, 135

McFarland v. State,

845 S.W.2d 824 (Tex. Crim. App. 1992) .......................................................... 160

Miranda v. Arizona,

384 U.S. 436 (1966) ........................................................................................ 121

Mitchell v. State,

931 S.W.2d 950 (Tex. Crim. App. 1996) .......................................................... 144

Mosley v. State,

983 S.W.2d 249 (Tex. Crim. App. 1998) .......................................................... 150

ix

Narvaiz v. State,

840 S.W.2d 415 (Tex. Crim. App. 1992) .......................................................... 160

Nenno v. State,

970 S.W.2d 549 (Tex. Crim. App. 1998) .......................................................... 118

Palermo v. State,

992 S.W.2d 691 (Tex. App.—Houston [1st Dist.] 1999, no pet.) ..................... 110

Paredes v. State,

129 S.W.3d 530 (Tex. Crim. App. 2004) ............................................................ 97

Powell v. State,

898 S.W.2d 821 (Tex. Crim. App. 1994) ................................................... 143, 147

Prystash v. State,

3 S.W.3d 522 (Tex. Crim. App. 1999) .............................................................. 145

Ripkowski v. State,

61 S.W.3d 378 (Tex. Crim. App. 2001) ............................................................ 102

Sadler v. State,

977 S.W.2d 140 (Tex. Crim. App. 1998) ............................................................ 40

Saldano v. State,

232 S.W.3d 77 (Tex. Crim. App. 2007) ........................................... 41, 42, 43, 182

Simon v. State,

203 S.W.3d 581 (Tex. App.—Houston [14th Dist.] 2006, no pet.) ............ 166, 169

Solomon v. State,

49 S.W.3d 356 (Tex. Crim. App. 2001) ............................................................ 162

Spence v. State,

795 S.W.2d 743 (Tex. Crim. App. 1990) .......................................................... 143

Standefer v. State,

59 S.W.3d 177 (Tex. Crim. App. 2001) .....48, 53, 56, 58, 65, 69, 71, 75, 76, 80, 91

x

Threadgill v. State,

146 S.W.3d 654 (Tex. Crim. App. 2004) ........ 40, 41, 45, 47, 59, 67, 80, 83, 85, 87

Torres v. State,

92 S.W.3d 911 (Tex. App.—Houston *14th Dist.+ 2002, pet. ref’d) ................. 110

Turner v. State,

805 S.W.2d 423 (Tex. Crim. App. 1991) .......................................................... 154

Walters v. State,

247 S.W.3d 204 (Tex. Crim. App. 2007) .......................................................... 161

Wardrip v. State,

56 S.W.3d 588 (Tex. Crim. App. 2001) ............................................................ 171

Welch v. State,

993 S.W.2d 690 (Tex. App.—San Antonio 1999, no pet.)................................ 146

Wesbrook v. State,

29 S.W.3d 103 (Tex. Crim. App. 2000) ............................................................ 105

Wilkerson v. State,

173 S.W.3d 521 (Tex. Crim. App. 2005) ........................................... 121, 122, 123

Williams v. State,

958 S.W.2d 186 (Tex. Crim. App. 1997) ............................................... 97, 98, 137

Young v. State,

283 S.W.3d 854 (Tex. Crim. App. 2009) ........................... 104, 143, 147, 171, 172

Young v. State,

891 S.W.2d 945 (Tex. Crim. App. 1994) ................................... 130, 132, 133, 135

Statutes

Tex. Code Crim. Proc. Ann. art. 13.17 (West 2005) .............................................. 46

Tex. Code Crim. Proc. Ann. art. 35.16(a)(9) (West 2006) ................................. 40, 73

Tex. Code Crim. Proc. Ann. art. 35.16(b)(3) (West 2006) ...................................... 40

xi

Tex. Code Crim. Proc. Ann. art. 35.16(c)(2) (West 2006) ................................. 40, 46

Tex. Code Crim. Proc. Ann. art. 35.23 (West 2006) ..................................... 165, 166

Tex. Code Crim. Proc. Ann. art. 37.071, § 2(a)(1) (West Supp. 2014) ................. 143

Tex. Code Crim. Proc. Ann. art. 37.071, § 2(b)(1) (West Supp. 2014) ................. 170

Tex. Code Crim. Proc. Ann. art. 37.071, § 2(c) (West Supp. 2014) ...................... 170

Tex. Code Crim. Proc. Ann. art. 37.071, § 2(h) (West Supp. 2014) ......................... 1

Tex. Code Crim. Proc. Ann. art. 38.05 (West 1979) ............................................ 165

Rules

Tex. R. App. P. 33.1(a) .... 43, 49, 54, 65, 70, 78, 81, 89, 94, 107, 108, 131, 154, 156,

159

Tex. R. App. P. 38.1(i) ......................................................................................... 108

Tex. R. App. P. 44.2(b) ........... 111, 113, 118, 119, 124, 128, 140, 161, 162, 166, 169

Tex. R. Evid. 104 ................................................................................................. 145

Tex. R. Evid. 401 ............................................................................................ 97, 137

Tex. R. Evid. 403 ................................................................................................... 98

Tex. R. Evid. 611(b) ..................................................................................... 152, 156

Tex. R. Evid. 612 ................................................................................................. 129

Tex. R. Evid. 702 ................................................................................................. 139

Constitutional Provisions

U.S. CONST. amend. V .......................................................................................... 121

xii

STATEMENT REGARDING ORAL ARGUMENT

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

grants appellant’s request to argue.

xiii

TO THE HONORABLE COURT OF CRIMINAL APPEALS:

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

Naim Rasool Muhammad.

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) (West Supp. 2014). A Dallas County jury found

appellant guilty of capital murder for drowning his two sons in the same criminal

transaction. (CR1: 2; CR2: 395-400, 401, 410-13; RR44: 39). In accordance with the

jury’s answers to the special issues, the trial court sentenced him to death on May

23, 2013. (CR2: 402-07, 408-09, 410-13; RR50: 100-04). Appellant presents fifty-

four allegations of reversible error.

STATEMENT OF FACTS

A. Evidence at Guilt-Innocence

Kametra Sampson dated appellant for six years and they had three children

together: Naim Muhammad, Elijah Muhammad, and Jeremiah Muhammad.

(RR43: 76-77). Kametra ended her relationship with appellant in December of

2010. (RR43: 77).

1

In August of 2011, Kametra and her sons were living with Kametra’s

mother, Priscilla Sampson, on Terrell Street in Dallas. (RR43: 31-32, 59, 79-80).

Although Kametra and appellant were broken up, appellant showed up at

Priscilla’s annual back-to-school barbecue on August 20, 2011. (RR43: 33-37, 60,

81). Kametra arrived late to the barbecue with the boys and her boyfriend, Eric

Smith. (RR43: 34, 36-37, 87). Appellant confronted Kametra, telling her he did not

want another man raising his sons. (RR43: 38-39, 90-91). Kametra sent the boys

inside the house and her argument with appellant escalated. (RR43: 39-40, 91).

Kametra’s grandfather intervened and asked appellant to leave. (RR43: 40, 61,

91). Appellant returned later that evening with his mother to pick up the boys,

but Kametra and the boys were not home. (RR43: 41, 92).

Appellant returned to Priscilla’s house around 6:00 a.m. on the morning of

August 22, 2011. (RR43: 42, 93). It was the first day of kindergarten for the eldest

son, Naim. (RR43: 42, 62). Appellant asked to see his sons, but Priscilla would not

let him in. (RR43: 43, 93). Kametra came to the door and told appellant he was

not wanted there and needed to leave. (RR43: 22, 93-94). Priscilla’s neighbor,

Phyllis Lewis, was outside when appellant arrived and overheard them exchange

2

words at the front door. (RR43: 22). About thirty minutes later, Phyllis saw

appellant drive by the house on Terrell Street. (RR43: 15-16, 20-21).

Priscilla left the house with her youngest daughter, Jamie, to catch the bus

and Kametra walked down Terrell Street toward Frazier Elementary with Naim

and Elijah. (RR43: 44-45, 79, 95, 125). Kametra’s youngest son, Jeremiah, stayed

home with her brother, Brandon Turner. (RR43: 45, 64). As Kametra, Naim, and

Elijah reached the end of Terrell Street and crossed over Dolphin Street, appellant

swerved in front of them and jumped out of the vehicle he was driving. (RR43: 96-

97, 123-24). He demanded that they get in the car with him or he would hit

Kametra with a large rock he picked up off the ground. (RR43: 97-98, 124-25).

Kametra and the boys complied. (RR43: 98). Appellant continued driving in the

direction of the school, but when they reached the front of the school, appellant

turned the opposite direction and told them that Naim wasn’t going to school

today. (RR43: 100).

Kametra began crying and pleading with appellant to take Naim to school.

(RR43: 100-01). Appellant drove erratically and alternated between telling

Kametra they needed to get back together and yelling, hitting her, and

threatening to kill her and the boys. (RR43: 102-03, 106, 112). After driving

3

around for over an hour, they pulled up behind a constable near the intersection

of Camp Wisdom and R. L. Thornton Freeway. (RR43: 104, 126). Kametra jumped

out of the vehicle in the hopes of getting some help from the constable. (RR43:

105-08). Appellant grabbed her, but she was able to pull away and escape. (RR43:

109, 129). Kametra banged on the passenger window of the constable’s vehicle

and begged for help. (RR43: 110). As the constable directed her to the Shell gas

station at the intersection, appellant swerved around the car in front of him,

jumped the curb, and sped through the red light. (RR43: 110-11, 127).

The constable pulled into the Shell gas station and called the police for

Kametra. (RR43: 112-13). Appellant’s sisters, Aqueelah Green and Sekinah

Muhammad, were called and also came to the Shell gas station. (RR43: 114, 144,

146). Kametra went with Aqueelah to her brother’s house nearby on Songwood

Street in the hopes of finding appellant, but he was not there and Aqueelah drove

Kametra back to the Shell station. (RR43: 115, 117, 147-48).

Shortly after dropping off Kametra, Aqueelah received a phone from

appellant. (RR43: 150). When she asked where Naim and Elijah were, appellant

told her they were “gone with Abdullah.” (RR43: 150-51, 154). Abdullah was

Aqueelah’s and appellant’s eldest brother who was deceased. (RR43: 150-51, 159-

4

60). When Aqueelah asked what appellant meant by that, he said, “They gone.

They are dead.” (RR43: 151, 153). Appellant hung up, but he called Aqueelah back

a short time later. (RR43: 152). Aqueelah was driving during the second phone call

and arrived at her brother’s house on Songwood while she was still on the phone

with appellant. (RR43: 152-54). One of the police officers at the house asked her

to switch on her speakerphone and gave her specific questions to ask appellant.

(RR43: 154-55). At the officer’s direction, she asked appellant if he killed the kids

and he replied, “Yes.” (RR43: 155). When she asked how he killed his kids, he said

he drowned them. (RR43: 155). He told her he killed Naim first and then Elijah.

(RR43: 155). When she asked appellant where the kids were, he said he “didn’t

know” and that they were “in the creek somewhere.” (RR43: 155).

This information was still unknown to Kametra and her family. Priscilla

returned home around 10:00 a.m. and Kametra arrived shortly after her. (RR43:

45-46, 68, 117). Kametra had a bloody nose, blood on her clothes, red and

swollen eyes, and was very upset. (RR43: 46, 68, 117). She told Priscilla and

Brandon about what had happened with appellant on the way to school. (RR43:

46, 117). Brandon told them that appellant had tried to break into the house

shortly before they got home. (RR43: 45-46, 68, 117). Brandon explained that he

5

heard someone kick a window in the back of the house and break the glass.

(RR43: 52-56, 65). He went to investigate and saw appellant trying to enter the

house through the window. (RR43: 65). The window led into the room where

Jeremiah was sleeping. (RR43: 65). Brandon asked appellant what he was doing;

when appellant did not respond and just kept trying to come in, Brandon pushed

him back out of the window. (RR43: 65-66, 73). After appellant picked himself up

and was running away toward the back fence, he told Brandon: “Your nephews

are dead now.” (RR43: 66-67, 70-71). Brandon did not think anything of it

because he thought the boys were with Kametra on the way to school. (RR43: 67).

When Brandon relayed this information to Kametra, she became hysterical.

(RR43: 68-69, 117). They called 911 and Kametra left with the police officers who

responded to the call. (RR43: 47, 69, 117-18). Later that day, Priscilla was taken by

officers to Dallas Police headquarters. (RR43: 48). There, both she and Kametra

learned that Naim and Elijah were dead. (RR43: 48, 119).

Christal Fewell hung out with appellant at his brother’s house on Songwood

Street the night before the offense. (RR42: 143-46). Christal met appellant

through her cousin and they had been dating for two to three months. (RR42:

141-42). Appellant asked to borrow Christal’s car the next morning so he could

6

take his son to school. (RR42: 145). About an hour after appellant left, Christal got

out of bed, showered, and then began to worry about the whereabouts of

appellant and her car. (RR42: 150-51). A short time later she started receiving

phone calls from appellant’s family members asking: “Where is Rasool?” (RR42:

151-52). She also received a phone call from the Dallas Police Department and

provided them with a description of her car. (RR42: 154-55). When Christal was

leaving the house on Songwood, she saw her car drive down the street in front of

the house. (RR42: 154-55). She immediately called the Dallas Police back and

reported the sighting of her car. (RR42: 154-56). Appellant’s mother, Naimah

Muhammad, pulled up to the house at this time and was looking for appellant.

(RR42: 154-56). Shortly thereafter, several Dallas Police Officers also arrived at

the house. (RR42: 154-56). Christal received a phone call from appellant on her

cell phone; however, he would not tell her his whereabouts and only wanted to

talk to his mother. (RR42: 157-58).

The police officers eventually left the house on Songwood to search for

appellant, and Christal left with Naimah because she claimed to know the location

of Christal’s car. (RR42: 158-59; RR43: 175). They drove down the street and

appellant jumped into the backseat of Naimah’s car. (RR42: 160; RR43: 175).

7

Naimah drove a short ways further and dropped Christal off at the location where

appellant had left her car. (RR42: 161; RR43: 175-76). Naimah told Christal to hug

and kiss her child when she got home and tell him she loved him. (RR42: 161,

173). As Christal was driving home, she was pulled over by several police officers

and taken to Dallas Police Headquarters for questioning, where she learned about

the events of the morning and what appellant had done. (RR42: 161-62). A search

of Christal’s car revealed mud on the interior. (State’s Exhibits 25-36).

After Naimah dropped off Christal at her car, appellant told her where to

drive to find Naim and Elijah. (RR43: 176-77). From the service road of IH-35, they

turned on Brookside Drive and drove to a heavily wooded area at the end of the

road with a steep incline down to a shallow creek. (RR43: 176-77, 186, 191-92,

199-200). Naimah waited at the top next to a sewer manhole cover while

appellant went down to the creek and retrieved the boys one at a time. (RR43:

177-78, 194). Appellant brought Naim up from the creek first. (RR43: 178, 194).

He laid him on the ground and Naimah attempted to perform CPR. (RR43: 178-79,

194). Appellant went back down and retrieved Elijah from the creek. (RR43: 179,

194). After Naimah’s attempts at CPR were unsuccessful, appellant put both boys

in the backseat of her vehicle. (RR43: 179-80). They left the creek and drove back

8

toward the house on Songwood, but before they arrived appellant jumped out of

the vehicle. (RR43: 180-81). Naimah pulled into a parking lot on Ledbetter Road.

(RR43: 182). She saw an officer driving by, so she flagged him down and told him

that her grandbabies were in the back of her car. (RR43: 182-83). When the police

searched and photographed Naimah’s car, the backseat was muddy and wet.

(RR43: 190).

Appellant was eventually captured by police later that day. Michael Yeric, a

homicide detective with the Dallas Police Department, interviewed appellant at

the police headquarters when he was brought into custody. (RR43: 209-14;

State’s Exhibits 152-53, 167). Detective Yeric read appellant his rights, and

appellant indicated that he wanted to waive those rights and speak with the

detective. (RR43: 217, 233-34, 237-38). Appellant told Detective Yeric that he had

borrowed his friend Christal’s car that morning because he wanted to take his son

to his first day of school. (RR43: 239). He went to Priscilla’s home around 6:30

a.m., but was not allowed to see his kids. (RR43: 239). Appellant found Kametra

and the boys as they were walking to school, forced them into the car with him,

and began driving around. (RR43: 239-40). As they approached Camp Wisdom on

the service road of R. L. Thornton freeway, appellant and Kametra saw a

9

constable’s car. (RR43: 241). Appellant told Kametra, “Don’t get out of this car,”

and “if you jump out of this car, you don’t care about your kids.” (RR43: 241).

Kametra jumped out of the car and went to the passenger side of the constable’s

car, and appellant drove off. (RR43: 241). Appellant admitted to then driving to

the creek and drowning Naim and Elijah. (RR43: 220, 241).

When Detective Yeric visited the scene of the drowning, he noticed a

security camera mounted outside of Spirit Depot, a liquor store on the corner of

Brookside Drive and the service road. (RR43: 221-22, 225). Detective Yeric

obtained the video footage recorded by this camera on August 22, 2011. (RR43:

221-22; State’s Exhibits 155-68). The video footage showed that appellant first

drove down Brookside Drive in Christal’s car at 8:53 a.m. and exited a short time

later. (RR43: 222-23, 230). It then showed Naimah’s car drive down Brookside

Drive at 12:15 p.m. and exit a short time later. (RR43: 223, 230). This video

footage corroborated the information relayed to the detective by appellant,

Naimah, and other witnesses they interviewed during their investigation. (RR43:

233).

Dr. Tracy Dyer, a board-certified forensic pathologist and staff medical

examiner at the Southwestern Institute of Forensic Sciences (“SWIFS”), supervised

10

the autopsies of 3-year-old Elijah Muhammad and 5-year-old Naim Muhammad.

(RR42: 115-39). Both Elijah and Naim arrived at SWIFS in wet clothing with dirt

and debris scattered across their bodies. (RR42: 120-22, 134). Both boys had

scratches on their heads and hands; additionally, Elijah had scratches on his back,

legs, and feet. (RR42: 120-26, 136-37; State’s Exhibits 4-8, 10-21, 24). The internal

examination revealed that Elijah had bruising on his scalp, dirt and debris in his

airway, and an abundant amount of fluid in his lungs. (RR42: 126-30; State’s

Exhibits 22-24). Naim also had bruising on his scalp and fluid in his lungs. (RR42:

137-38; State’s Exhibits 9-10). Dr. Dyer determined that the cause of death for

both Elijah and Naim was drowning and that their manner of death was homicide.

(RR42: 130-31, 138-39; State’s Exhibits 10, 24).

After hearing this evidence, the jury returned a verdict of guilt in

approximately eight minutes. (RR44: 34, 41).

B. The State’s Punishment Evidence

During punishment, the State presented evidence showing that appellant’s

experience with the criminal justice system began at a young age and spanned a

period of about twenty years. This evidence was presented through business

11

records of prior criminal convictions, as well as live testimony regarding various

extraneous adjudicated and unadjudicated offenses.1

On January 30, 1993, appellant was arrested for burglary of a coin-operated

machine. (RR44: 111-12). Appellant and a cohort were removing quarters from a

vacuum cleaner at a car wash. (RR44: 112-13). When Dallas Police Officer John

James and his partner arrived at the location, appellant and his cohort fled. (RR44:

114). Appellant, who was thirteen years old at the time, was apprehended a few

blocks away and taken to the juvenile jail. (RR44: 114-15).

On February 26, 1993, Ivis Wright, a single mother of three, returned home

to find her back door had been kicked in and several items had been stolen from

her home, including a VCR, Nintendo gaming system, a cordless phone, money,

and candy. (RR44: 119-21). Five juvenile boys were apprehended fleeing Wright’s

home and placed under arrest for burglary. (RR44: 121, 124-27). Officer Chris

Havens identified Naim Rasool Muhammad as one of the perpetrators. (RR44:

127). On October 4, 1993, Dallas Police Officer David Solomon responded to a call

1

The judge gave both an oral and written instruction to the jury that they were not to consider

extraneous offenses for any purpose unless they found and believed beyond a reasonable

doubt that appellant committed the offenses, if any were committed, and even then they could

only consider them in determining their answers to the special issues. (RR45: 41-42; CR2: 406).

12

reporting an auto theft in progress. (RR45: 82-84, 126-27). Officer Solomon pulled

over a vehicle matching the description of one of the stolen vehicles and

appellant was one of the passengers. (RR45: 86, 88, 127-28). Officer Solomon

determined that the passengers were not involved in the reported auto theft;

however, Officer Solomon arrested appellant because he had outstanding

warrants for two charges of burglary of a habitation, one of which was for the

burglary Wright’s home. (RR45: 89, 97-99, 100-01, 103, 128-30).

On June 16, 1993, appellant was arrested for possession of a stolen vehicle.

(RR45: 48-49, 51). Former Dallas Police Officer Sekethia Tejada pulled up behind a

Cadillac, ran the plates, and realized it was a stolen vehicle. (RR45: 48-49). When

she pulled the vehicle over, there were two young men inside; appellant, who

was fourteen years old at the time, was the passenger. (RR45: 50-51). The

steering column was broken and they had managed to start the engine without a

key. (RR45: 51).

On April 5, 1994, appellant committed burglary of a habitation. (RR44: 109;

State’s Exhibit 170). On May 25, 1994, a juvenile Order of Adjudication and

Judgment of Disposition with No Placement was entered and appellant was

sentenced to 12 months’ probation. (RR44: 109; State’s Exhibit 170).

13

On July 27, 1994, Dallas Police received a call reporting a burglary of a

vehicle that was in progress. (RR44: 140-41). Lieutenant Harold Andrews was

driving around the area where the burglary occurred and spotted appellant, who

matched the description of one of the suspects. (RR44: 142). Lt. Andrews

detained appellant and brought him back to the scene of the burglary, where he

was identified by the complainant as one of the perpetrators. (RR44: 142-43).

On August 18, 1994, appellant committed unauthorized use of a motor

vehicle and evading arrest. (RR44: 108-09; State’s Exhibit 171). A juvenile Order of

Adjudication and Judgment of Disposition with Placement was entered on

September 9, 1994, sentencing appellant to 12 months’ probation to be served in

the custody of Daytop Village. (RR44: 108-09; State’s Exhibit 171).

Daytop Village provides a 9-month program for 13 to 18 year olds and is

designed to rehabilitate juveniles so that they do not end up in “the system.”

(RR46: 9-11, 13). If a juvenile completes the program at Daytop, they are returned

to their family; if not, they are sent to the Texas Youth Commission (“TYC”), a

correctional facility for youth offenders. (RR46: 11, 13, 38). Youths attending

Daytop are given multiple opportunities to succeed in the program. (RR46: 12-13,

34). Daytop operates using the merit system and infractions are judged by peers,

14

not adults. (RR46: 10-11, 13). Daytop residents attend school, enjoy recreation

time, participate in group meetings, and also receive one-on-one counseling.

(RR46: 17-18). During his stay at Daytop, appellant had many difficulties and was

placed on a behavior contract in an effort to change his aggressive behavior

toward other residents. (RR46: 16; State’s Exhibit 177). Despite this contract, on

July 1, 1995, appellant physically assaulted another resident on two separate

occasions. (RR46: 16-17, 26; State’s Exhibit 177). Due to the two new assaults, as

well as the prior infractions resulting in the behavior contract, the leaders of the

program voted to discharge applicant from Daytop and send him to TYC. (RR46:

16-19, 32-33; State’s Exhibit 177).

While in TYC, appellant committed multiple infractions. On September 16,

1995, appellant was written up for disruptive behavior and threatening staff.

(RR46: 83). After being repeatedly instructed to be quiet, appellant stated that he

would like to “beat somebody down.” (RR46: 83). He then looked at former TYC

correctional officer Linda Parker and said “especially females.” (RR46: 81-83). On

December 12, 1995, appellant was written up for disruption of the program and

possession of razor blades and crushed aspirin. (RR46: 56, 59; State’s Exhibit 178).

According to former TYC correctional officer Michael Jaco, the inmates snorted

15

crushed aspirin to get high and often used razor blades to create weapons. (RR46:

52-53, 56-57). Appellant was trading the contraband for snacks. (RR46: 56, 63;

State’s Exhibit 178). On January 11, 1996, appellant was written up multiple times

for aggressive behavior toward other inmates, disruptive behavior in the

classroom, disobeying staff, and calling a pregnant female correctional officer a

“fat mother-fucker.” (RR46: 70-72). On August 17, 1996, appellant was written up

for a disruption on the volleyball court. (RR46: 77). When he was asked to leave,

appellant became explosive and cursed at staff members. (RR46: 77). He called

former TYC correctional officer Kenneth Allen a “fat mother-fucker” and told him

“fuck your mother.” (RR46: 74-75, 77-78). On August 27, 1996, appellant was

written up for rubbing his erect penis against the leg of his teacher, Nina Adams.

(RR47: 18-24). On September 15, 1996, appellant was written up for fighting.

(RR46: 40-42). He and his cohort assaulted another inmate while he was being

held down on a toilet. (RR46: 40-42). On September 20, 1996, he was written up

for being disruptive in the dining hall. (RR46: 78-79).

According to former correctional officer Gail Hamilton, appellant was not a

law abiding person while at TYC. (RR46: 36-37, 46). Many of the correctional

16

officers at TYC tried to talk to appellant and encourage him to stop the

progression of his criminal behavior to no avail. (RR46: 44-45, 54-55).

Appellant was released from TYC in December of 1996 and resumed his

criminal activity shortly thereafter. On July 30, 1997, appellant committed

burglary of a vehicle and evading arrest. (RR44: 109; State’s Exhibits 172, 173). On

September 19, 1997, he pleaded guilty to each offense and was sentenced to 12

months’ probation in each case, but he was subsequently revoked for failing to

comply with the conditions of his probation. (State’s Exhibit 172, 173).

On December 4, 1997, appellant committed theft at a Lowe’s store in Collin

County. (RR44: 108; State’s Exhibit 174). On September 28, 1998, he pleaded

guilty to the charge and was sentenced to probation for one year, but he was

subsequently revoked and sentenced to 180 days’ confinement. (State’s Exhibit

174).

On January 27, 1998, appellant committed burglary of a vehicle. (RR44:

109-10; State’s Exhibit 175). On February 11, 1998, he pleaded guilty to the

charge and was sentenced to 180 days’ confinement. (RR44: 109-10; State’s

Exhibit 175).

17

On July 4, 1999, Garland Police Officer Brandon Hernandez and several

other officers responded to a burglary alarm at a car lot off Forest Lane in Dallas.

(RR45: 60-63). Officer Hernandez and his partner spotted appellant walking away

from the business toward a suspicious vehicle that was running but did not have

its lights on. (RR45: 63-64). When another officer approached the vehicle on foot,

the vehicle sped away. (RR45: 64-65). Officer Hernandez and his partner chased

the vehicle and made a felony traffic stop. (RR45: 65). Appellant and two other

passengers were removed from the vehicle and the officers found a loaded

shotgun inside. (RR45: 65-66). They also found a bag of marijuana and a

screwdriver, a common burglary tool, just outside the vehicle that appeared to

have been thrown out by the passengers. (RR45: 66-67). When the officers

checked appellant’s name and date of birth in their system, they discovered he

had outstanding felony and probation warrants. (RR45: 69, 70-71). All three

passengers of the vehicle were arrested. (RR45: 70-71).

On April 7, 2001, Jeanette Harris, appellant’s next door neighbor at the

time, caught appellant peeping at her through the bathroom window when she

was in the shower. (RR45: 43-45). When Harris confronted appellant about the

18

incident, he threatened to “whip *her+ ass.” (RR45: 45-46). Harris called the police

and appellant fled. (RR46: 45).

On April 20, 2009, Dallas Police Officer Ryan Foster and his partner

responded to a disturbance call in South Dallas. (RR45: 132-33, 140). Sekinah

Muhammad, appellant’s sister, was upset and was bleeding from the back of her

head. (RR45: 133-35). Appellant and Sekinah had gotten into an argument. (RR47:

28-29). When appellant refused to leave, Sekinah came toward appellant with a

hammer. (RR47: 28-29, 32-33). Appellant took the hammer from her and hit her

in the head with it two times. (RR45: 138-39; RR47: 28-29, 32-35). Appellant was

apprehended a few blocks away from the offense and arrested for assault. (RR45:

138-40).

Appellant pleaded guilty to the aggravated assault of his sister and was

placed on probation on September 15, 2009. (RR46: 141-43, 147; RR47: 37; RR49:

99-100; State’s Exhibit 185). Appellant violated the conditions of his probation on

many occasions. He was ordered to wear an electronic monitoring device on

September 25, 2009, but was arrested four days later for failing to comply with

the electronic monitoring requirements. (RR46: 143-44). Over the next nine

months, appellant failed to comply with several other conditions of his probation

19

by testing positive during multiple urinalysis tests, failing to regularly report to his

probation officer, failing to complete any community service hours, failing to

complete anger management, failing to attend Narcotics Anonymous meetings,

and failing to pay the required fees and court costs. (RR46: 144, 148-49, 150-51).

Despite these numerous violations, in June of 2010, appellant was continued on

probation and sent to an intermediate sanctions facility (“ISF”) to complete a

cognitive track program. (RR46: 152, 163). Appellant completed the program and

was released in January of 2011; however, one month later he was arrested for a

family violence assault against Kametra and absconded from probation for the

next five months. (RR46: 152-53). He had a warrant out for his arrest for violating

his probation at the time he was arrested the instant offense on August 22, 2011.

(RR46: 154).

Appellant did not voluntarily turn himself in after drowning his two sons.

He evaded police for most of the day, but was eventually captured. After the

boys’ bodies were found in the back of Naimah’s car, several police officers set up

a perimeter of the area and continued to search for appellant with the assistance

of the helicopter unit. (RR46: 104, 107-11). Eventually appellant was spotted on

foot, and five to six officers pursued him in a foot-chase. (RR46: 111-12). They

20

finally captured him in the bottom of an empty creek bed and appellant resisted

arrest by fighting, pushing and kicking the officers. (RR46: 112-13). The officers

had to use a Taser at least three times in order to gain control and place him in

handcuffs. (RR46: 113-14).

While confined in Dallas County Jail and awaiting trial for capital murder,

appellant had several disciplinary violations. On October 25, 2011, when appellant

was instructed that he would be changing cells, he refused and had to be forcibly

moved to another cell by two guards. (RR47: 101-03). Appellant was given five

days of restrictions as a result, which meant that he was moved into a single cell

and not allowed to go to the commissary, have visitation, or make personal phone

calls other than to his attorney for five days. (RR47: 105). On April 25, 2012,

appellant was unhappy about the tray of food he was served and refused to

return the plastic tray until the guard served him another tray. (RR47: 104). When

the guards went into appellant’s cell to cease the food tray, appellant swung at

one of them and the guards had to use force to detain him. (RR47: 104-05). As a

result of this infraction, appellant was given twenty-five days of restrictions.

(RR47: 105). On March 26, 2013, appellant was written up for fighting another

inmate and received fifteen days of restrictions. (RR47: 111-12). On November 24,

21

2012, in a jail phone call to his brother Jamal, appellant told his brother that the

only reason he had not “fired off on some of these fools” was because he wanted

to keep up with his sports and visits. (RR47: 136–38; State’s Exhibit 184).

In addition to appellant’s lengthy history of criminal behavior and

disrespect toward any person of authority, the State also presented evidence of

appellant’s violence toward Kametra throughout their relationship. Kametra met

appellant in the summer of 2005 when she was fifteen years old and they began

dating. (RR46: 169-70). They had been dating for two to three weeks when

appellant became violent with her. (RR46: 176). The first incident of violence

happened in the backyard of appellant’s house following a verbal argument.

(RR46: 177). Kametra told appellant she was leaving and he grabbed her, threw

her in the back seat of his car, hit her with his fists multiple times, and told her

she was not leaving. (RR46: 177-78).

Appellant’s violence toward Kametra occurred once or twice a week in the

beginning of their relationship, but escalated over the last few years they were

together. (RR46: 179-80, 202). If Kametra burnt the rice, stayed outside too long

with her sister, spoke disrespectfully to appellant, or questioned appellant about

the way he was spending her money, appellant responded with physical abuse.

22

(RR46: 202-03, 210-13). When Kametra found out she was pregnant with their

first child, Naim, appellant became upset and asked her to have an abortion.

(RR46: 186-87, 188-89). He also encouraged her to drink bleach or attempt to

abort the baby using a wire hanger. (RR46: 188). When Kametra refused to abort

the baby, he punched and kicked her in the stomach in an effort to make her have

a miscarriage. (RR46: 187-88, 191). Appellant repeated this abusive behavior

when Kametra became pregnant with Elijah. (RR46: 195-96). Kametra’s sister,

Gabrielle Armstead (“Gabby”), witnessed the abuse and repeatedly encouraged

Kametra to leave appellant. (RR46: 210-13).

In December of 2010, Kametra had grown tired of appellant being in and

out of jail, failing to work, and being physically abusive towards her, so she

decided to leave him. (RR46: 218-20). She and the boys left with her sister Gabby

and stayed in a motel. (RR46: 221-22). For the next few months, they bounced

around between the motel, shelters, and Priscilla’s house. (RR46: 221-23, 225).

Kametra resorted to prostitution in order to make money for food, diapers, the

motel, and her newly developed drug addiction. (RR46: 222, 224). After a few

months, Kametra checked into Nexus, a drug abuse treatment facility, and

received the help she needed. (RR46: 222, 224-25, 249-51). Despite the hard

23

times she encountered over the months after leaving appellant, she knew that

leaving him was the right decision and never got back together with him. (RR46:

222).

After the breakup, appellant continued to use violence to make Kametra

comply with his demands. In February of 2011, when Kametra and the boys were

were staying with her mother, appellant came over and wanted to take Naim and

Elijah with him. (RR46: 228-30). When Kametra told him no, appellant punched

Kametra in the face, grabbed Naim from inside the house, and kicked in the side

door of the house to escape. (RR46: 230-35). Kametra called the police, who

located appellant a short time later and brought Naim home. (RR46: 233-36).

In March of 2011, Kametra borrowed Gabby’s car to pick up the boys from

appellant’s house. (RR46: 236-37). Appellant insisted that Kametra take him to

the store and got in the car with them. (RR46: 239). When Kametra refused,

appellant choked her until she passed out. (RR46: 240). She awoke inside

appellant’s house and when she attempted to leave, appellant hit her in the head

with a heavy object. (RR46: 241). Kametra finally convinced appellant to let her

return Gabby’s car. (RR46: 242-43). When they exited the car, Gabby saw that

Kametra was bleeding and called the police. (RR46: 243). Appellant was carrying

24

Elijah and threatened to kill him if Kametra did not go with him. (RR46: 245-46).

The police were driving around searching for appellant and when they spotted

him, appellant took off running. (RR46: 247). Initially he was still holding Elijah,

but he threw him down and kept running. (RR46: 247-48). Following this incident,

CPS instructed Kametra that appellant was not allowed to have unsupervised

visitation with the boys. (RR46: 250).

In light of this history, Kametra was afraid of appellant and believed his

threats to kill her, Naim, and Elijah on the day of the offense. (RR46: 252).

Kametra believed that if she had done anything differently that day, the outcome

would be worse and they would all be dead right now. (RR46: 252). She also

believes that Jeremiah would be dead if Brandon had not been at her mother’s

house that morning. (RR46: 252).

Since the day of the offense, appellant has continued to blame others for

his actions. At the end of his police interview, appellant asked Detective Yeric to

tell Kametra that she was the reason he did it. (RR47: 118). While in jail, appellant

wrote a letter to Kametra’s mother stating, “I wished that I could have just talked

to [Kametra] about this, but she should have never jumped out of the car and did

what she did...this may sound crazy, but tell her I love her still and wish she would

25

have just listened to me that day because I didn’t want this to happen.” (RR46:

256; State’s Exhibit 42).

C. Appellant’s Punishment Evidence

At punishment, appellant presented evidence of the neglect, violence, and

sexual abuse he suffered during his childhood. Appellant had five siblings:

Abdullah, Jamal, Aqueelah, Sekinah, and Rashad. (RR47: 140, 169-70, 183-84).

Their mother, Naimah, was married to Roger Mopping when the children were

young, until about the time that Jamal was in fifth grade. (RR47: 141, 170-71).

Roger was the biological father of Jamal and Aqueelah. (RR47: 141, 183, 233,

248). Abdullah and appellant were told that their biological father was a man

named Lynn, but no one knew for sure. (RR47: 149-50, 154, 183-84, 233, 248-49).

None of them knew who the biological father of Sekinah or Rashad was. (RR47:

149, 162-63, 184, 248-49). Naimah was a drug-addicted prostitute who was rarely

home. (RR47: 148, 150, 184-86, 231, 235-36; RR48: 31, 38-39, 47). Roger also

became addicted to drugs. (RR47: 149-50, 186, 234-35, 238). Roger loved Naimah

but eventually left her because she kept getting pregnant by other men. (RR47:

249).

26

After Roger left, Naimah and the children moved in with Naimah’s mother

Dorothy May Butler (“Madea”), who was confined to a wheelchair. (RR47: 152-53,

187-88). Even though Madea was crippled and regularly needed assistance from

the children, this was the only stable portion of their childhood that they could

recall. (RR47: 152-53, 187-88). After Madea passed away, Naimah was married to

Joe Johnson for a short time. (RR47: 142, 159). While Joe did work and put a roof

over their head, he was an alcoholic and appeared to care more about his hogs

than the children. (RR47: 159-61, 198-99, 245; RR48: 47). When Joe left Naimah,

the children lived with a variety of different people. (RR47: 161, 164, 193, 206-08;

RR48: 29, 45). The girls were taken in by family members and somewhat

protected; however, the boys, who were all already involved in the juvenile

system, were forced to fend for themselves. (RR47: 164, 177, 207; RR48: 29-30,

45-46, 52, 55). According to Jamal, they ate out of dumpsters and resorted to

crime to make money. (RR47: 164-65).

Throughout their childhood, appellant and his siblings were regularly

exposed to drugs and violence in their home. Naimah, her brothers, and her

sister, Tina, drank alcohol and smoked cracked cocaine together at the house and

these binges frequently ended with violent fights. (RR47: 167, 194-95; RR48: 39,

27

42-43). Naimah and Tina fought the most, and Tina was sent to prison for twenty

years for stabbing Naimah in the face during one of their arguments. (RR47: 156-

57, 195-97; RR48: 42). Naimah was also violent toward the children when she

believed they were taking her drugs away. (RR47: 166, 189-92).

The children were also victims of sexual abuse. Abdullah, the eldest

brother, sexually assaulted Aqueelah, Sekinah and appellant. (RR47: 202-03;

RR48: 40-41). Aqueelah and Sekinah recalled that he would frequently come into

their room at night and rub his penis on them, fondle them, and ejaculate on

them. (RR47: 202-03; RR48: 40-41). According to appellant, Abdullah played with

his penis and made appellant play with his. (Defendant’s Exhibit 11). Appellant

also reported that he was sexually abused around age four or five by an older

woman who asked him to have sex with her. (Defendant’s Exhibit 11).

Both Aqueelah and Sekinah graduated from high school due to the

guidance they received from the friends and relatives who helped take care of

them in Naimah’s absence. (RR48: 31-32, 37). However, no one encouraged the

boys to attend school or stay out of trouble. (RR47: 204; RR48: 31-32, 46). To the

contrary, the eldest brother, Abdullah, taught Jamal to steal and commit crimes,

and that way of life was then passed on to appellant and Rashad. (RR47: 153-55,

28

205; RR48: 32). Like appellant, Abdullah, Jamal and Rashad were involved in a

number of juvenile and adult crimes and spent time in prison. (RR47: 157-58, 163,

205-06; RR48: 29). Abdullah was shot in the chest when he was eighteen years old

and survived; however, he died from complications related to that gunshot

wound in January of 2011. (RR47: 158).

With regard to appellant’s medical history, the defense presented evidence

that appellant was struck by an automobile around age three and had to go to the

hospital. (RR48: 177-78; Defendant’s Exhibit 11). In 2009, appellant started having

brain seizures and has been receiving treatment for epilepsy since that time.

(RR48: 178-79; Defendant’s Exhibit 11).

Dr. Gilbert Martinez, a clinical neuropsychologist, was hired by the defense

to test appellant’s cognitive and intellectual functioning. (RR48: 100-02). In order

to form the opinions offered by his testimony, Dr. Martinez examined appellant’s

medical records and a previous psychological evaluation conducted in 1994 when

appellant was in the juvenile system. He also conducted a clinical interview of

appellant and administered a battery of psychological tests on appellant. (RR48:

102-04, 106-07, 111-12, 141; Defendant’s Exhibit 11). With regard to his

intellectual functioning, appellant received a full-scale IQ score of 76. (RR48: 114-

29

16, 124-25; Defendant’s Exhibit 11). According to Dr. Martinez, appellant is not

mentally retarded, but his IQ score falls in the borderline range of intellectual

functioning. (RR48: 114-16, 124-25, 133; Defendant’s Exhibit 11).

With regard to appellant’s cognitive functioning, Dr. Martinez diagnosed

appellant with mild neurocognitive disorder. (RR48: 122-24; Defendant’s Exhibit

11). Appellant does not have severe cognitive or memory deficits, but he does

have deficits in executive functioning. (RR48: 118-19, 122-24, 133). Dr. Martinez

explained that a person with deficits in executive functioning has poor judgment

and reasoning and may have difficulty making decisions, controlling their thinking

and behavior, and learning from their mistakes. (RR48: 111, 123-24, 126-27, 134-

35, 164-65). Dr. Martinez believes that appellant’s deficits in executive

functioning may be due to the combined effect of his epilepsy, the head injury he

sustained as a child, and the lack of emotional support he received as a child.

(RR48: 127-29, 133; Defendant’s Exhibit 11). Appellant’s chronic drug use could be

a contributor to his deficits in executive functioning, or appellant’s choice to use

drugs could be the result of those deficits and his poor judgment. (RR48: 131,

133).

30

Dr. Kellie Gray-Smith testified as an expert on special education and the

multicultural aspects of psychology. (RR49: 11-14). Dr. Gray-Smith, a licensed

psychologist and licensed specialist in school psychology, is currently employed as

the special education coordinator for Plano Independent School District. (RR49:

11-12). In her field of study, it is well-documented that different cultures treat the

intervention and treatment of medical, mental health, and educational needs

differently. (RR49: 15, 59). With regards to special education, there has

historically been distrust within the African-American community of special

education services and a negative stigma attached to a child who accepts those

services. (RR49: 15-16, 59). These beliefs are often perpetuated by black leaders,

especially in the church. (RR49: 16).

Special education was developed and designed to address students’

academic, emotional-behavioral, and social needs. (RR49: 17). She explained that

academic failure can develop for a number a reasons and it is not uncommon for

an emotional disturbance to cause academic failure or vice versa. (RR49: 18-19,

59-60). Many behaviors – such as fighting, profanity, disrespect, and non-

compliance – are perceived to be choice-based behaviors when sometimes they

are actually caused by an underlying emotional, behavioral, or academic

31

disability. (RR49: 19-20). Literature shows that students whose needs are not

recognized and addressed by an early age are at risk for chronic school failure,

removal from school, school dropout, unemployment, substance abuse, criminal

activity, and confinement in the penitentiary. (RR49: 21-24). If there is no

intervention or treatment, the student can develop oppositional defiant disorder,

conduct disorder and, eventually, anti-social personality disorder. (RR49: 42-43,

45). According to Dr. Gray-Smith, it is common for people with this behavior

pattern to end up in jail. (RR49: 43-44, 73). This is what is known within the

psychological community as the “school-to-prison pipeline,” and it is most

prevalent with African-American males. (RR49: 44).

Dr. Gray-Smith reviewed appellant’s school records, the psychological

evaluation done in 1994 when appellant was a juvenile, and the report of Dr.

Gilbert Martinez. (RR49: 26-27, 41). Dr. Gray-Smith testified that appellant’s

school records demonstrate that appellant experienced chronic school failure

starting in elementary school that went unaddressed. (RR49: 29-30, 33). In her

opinion, this pattern of school failure was consistent with oppositional defiant

disorder. (RR49: 56-57). She believed appellant’s behavioral problems continued

and escalated due to the school district’s failure to provide effective intervention

32

and assistance to appellant. (RR49: 30-31, 33, 35, 61). In her opinion, appellant’s

school and psychological records suggest that he has anti-social personality

disorder. (RR49: 58, 66-67, 72).

D. The State’s Rebuttal Evidence

Melodye Nelson, a 24-year veteran of the Texas Department of Criminal

Justice-Institutional Division (“TDCJ”), testified as an expert on the prison system

in Texas. (RR49: 101-47). Warden Nelson previously worked as a correctional

officer on death row and is now the senior warden over the Mountain View and

Hilltop female prison facilities. (RR49: 101-02). Warden Nelson testified generally

about how inmates are classified and housed and the opportunity for violence

within the prison system. (RR49: 102-47).

She explained that general population inmates are classified as a “G1”

through “G5,” with G1’s and G2’s being the inmates with the least amount of

supervision. (RR49: 105, 123). There is also administrative segregation and death

row, which are much more restrictive. (RR49: 105, 123, 135). An inmate’s initial

classification is not based on the crime committed, but rather on the sentence

received, his behavior during any previous incarceration, and whether he is a

member of a documented gang. (RR49: 105, 123-24, 126-28, 140). An inmate

33

serving a sentence of 50 years or more who has served less than ten years is

automatically going to be classified as a G3. (RR49: 109, 124). That person can

move up or down within the classification system depending on their behavior.

(RR49: 110-11, 127-31, 135-36, 146-47). This means a person convicted of capital

murder and sentenced to life without parole and who is not a documented

member of a gang would be classified as a G3; the only distinction, however, is

that person would never move down below a G3 classification. (RR49: 107, 109-

10, 111-12, 125-26).

Inmates classified as G1’s, G2’s and G3’s live in dormitories or cell blocks

and can walk around unescorted throughout their prison facility. (RR49: 105-06,

107, 14-41). A capital murderer sentenced to life without parole who is classified

as a G3 can shower, work, eat, go to school, go to the library and recreate like any

other G3 in the general population. (RR49: 107, 109). In contrast, inmates on

death row are housed in single cells and confined approximately 23 hours per

day. (RR49: 114). They are allowed visitation and limited recreation, but they are

strip-searched prior to leaving their cell and are always escorted in restraints with

two correctional officers. (RR49: 114).

34

According to Warden Nelson, the Texas prison system is a well-run

organization. (RR49: 121, 143). Nonetheless, there is an opportunity for violence

throughout the prisons, regardless of classification level. (RR49: 112, 118, 131,

144). Even on death row, the most secure unit in Texas, violence occurs. (RR49:

112-13). Whether an inmate will commit acts of violence depends on the

individual inmate and his demeanor. (RR49: 133-34, 136, 142). Inmates get

creative in making weapons and use whatever they have access to, including

typewriter rods, nails, screws, rocks, and sharpened chicken or pork bones. (RR49:

115-17).

SUMMARY OF ARGUMENT

Issues 1-20: The trial court properly denied appellant’s challenges for cause

against twenty prospective jurors. All of the denials were proper, and appellant

has not shown that he was denied the use of a statutorily provided peremptory

challenge.

Issues 21-22: 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.

35

Issues 23-26: The trial court did not abuse its discretion by admitting

autopsy photographs of the victims. The photographs were relevant and

necessary to assist the medical examiner with her testimony and to link the

victims to this testimony, and their probative value was not outweighed by the

danger of unfair prejudice

Issues 27 and 41: The trial court properly overruled appellant’s objections

to the State’s closing argument during both the guilt-innocence and punishment

phases of trial because the complained-of arguments fell within the permissible

areas of argument. Further, given the overwhelming evidence supporting the

jury’s guilty verdict and their answers to the special issues, any error was

harmless.

Issue 28: The trial court did not abuse its discretion by admitting testimony

regarding appellant’s statements to CPS investigator Pamela Womack. Because

Womack was not an agent of law enforcement, she was not required to comply

with Miranda.

Issue 29: The trial court did not abuse its discretion by admitting State’s

Exhibit 173, certified business records pertaining to appellant’s 1997 conviction

36

for evading arrest. The totality of the evidence sufficiently linked appellant to the

conviction.

Issues 30-32: The trial court properly overruled appellant’s objections to

the testimony of police officers Chris Havens, Harold Andrews, and Brandon

Hernandez. These officers properly used police reports to refresh their memory

and then testified from their refreshed memory.

Issues 33 and 37: The trial court did not abuse its discretion by admitting

the testimony of Officer David Solomon regarding his arrest of appellant. His

testimony was relevant to link appellant to an unadjudicated burglary offense

previously presented by the State, and it did not leave a false impression that

appellant was involved in a different offense.

Issue 34: 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 in the admission of this testimony

was harmless.

Issue 35: The trial court satisfied its duty to conduct a threshold

determination of the admissibility of extraneous offenses. Any error in the trial

court’s failure to grant appellant’s request for a separate hearing was harmless

37

because the State clearly proved each extraneous offense presented during the

punishment phase.

Issue 36: Where the trial court granted appellant’s request and instructed

the jury to disregard inadmissible testimony, it did not abuse its discretion in

denying appellant’s motion for mistrial.

Issues 38 and 39: Appellant failed to preserve his complaints regarding the

cross-examination of his experts for appellate review. In any event, the trial court

did not err by permitting the State to cross-examine Dr. Kellie Gray-Smith and Dr.

Gilbert Martinez regarding antisocial personality disorder, an issue within their

area of expertise and clearly relevant to appellant’s death-worthiness.

Issue 40: The trial court’s statement regarding sequestration was not an

improper comment on the weight of the evidence. Regardless, appellant was not

harmed by the trial court’s comment because it was not calculated to benefit the

State or prejudice appellant’s rights.

Issue 42: 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 violence, a

38

rational jury could find that appellant would constitute a continuing threat to

society.

Issues 43-54: 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

Issues 1-20: Denial of Defense Challenges For Cause

In issues 1 through 20, appellant claims the trial court violated statutory

and constitutional law by erroneously causing him to use all fifteen of his

statutorily allotted peremptory strikes plus two additional strikes on persons who

should have been removed for cause. Moreover, he contends that the trial court

forced him to accept an objectionable juror after denying his request for

additional strikes. (Appellant’s Brief, pp. 20-87).

The trial court properly denied all of appellant’s challenges for cause. Thus,

his contentions are without merit and should be overruled.

39

Applicable Law

A veniremember may be challenged for cause if, among other reasons, he

possesses a bias or prejudice in favor of or against the defendant or he possesses

a bias against an aspect of the law upon which the State or the defendant is

entitled to rely. See Tex. Code Crim. Proc. Ann. arts. 35.16(a)(9), (b)(3), (c)(2)

(West 2006); Threadgill v. State, 146 S.W.3d 654, 667 (Tex. Crim. App. 2004). A

“bias against the law” is the refusal to consider or apply the relevant law. Sadler v.

State, 977 S.W.2d 140, 142 (Tex. Crim. App. 1998). The test is whether the bias or

prejudice would substantially impair the prospective juror’s ability to carry out his

oath and instructions in accordance with the law. Threadgill, 146 S.W.3d at 667.

Appellant has the burden of establishing that his challenge for cause is

proper. See Feldman v. State, 71 S.W.3d 738, 747 (Tex. Crim. App. 2002). Before a

prospective juror can be excused for bias, the law must be explained to him and

he must be asked whether he can follow that law regardless of his personal views.

Threadgill, 146 S.W.3d at 667. Appellant does not meet his burden of establishing

that his challenge for cause is proper until he has shown that the veniremember

understood the requirement of the law and could not overcome his prejudice well

enough to follow it. See Feldman, 71 S.W.3d at 747.

40

When reviewing a trial court’s decision to deny a challenge for cause, the

appellate court looks at the entire record to determine if there is sufficient

evidence to support the ruling. Feldman, 71 S.W.3d at 744. The appellate court

reviews a trial court’s ruling with “considerable” or “great” deference because the

trial judge is in the best position to evaluate the prospective juror’s demeanor and

was present to observe the juror and listen to his tone of voice. Saldano v. State,

232 S.W.3d 77, 91 (Tex. Crim. App. 2007); Threadgill, 146 S.W.3d at 667.

Particular deference is given when the prospective juror’s answers are vacillating,

unclear, or contradictory. Threadgill, 146 S.W.3d at 667. The appellate court

reverses a trial court’s ruling on a challenge for cause “only if a clear abuse of

discretion is evident.” Colburn v. State, 966 S.W.2d 511, 517 (Tex. Crim. App.

1998). When the venireperson is persistently uncertain about his or her ability to

follow the law, the reviewing court does not second guess the trial court. Id.

To prevail on a claim of erroneous denial of a challenge for cause, the

defendant must object to the trial court that he is compelled to try his case with

at least one individual on the jury who he would have removed with a

peremptory challenge had one been available to him. Harm from the erroneous

denial of a defense challenge for cause occurs: (1) when a defendant uses a

41

peremptory challenge to remove a veniremember whom the trial court should

have excused for cause at the defendant’s request, (2) the defendant uses all of

his statutorily allotted peremptory challenges, and (3) the defendant

unsuccessfully requests an additional peremptory challenge which he claims he

would use to remove another veniremember whom the defendant identifies as

“objectionable” and who actually sits on the jury. Saldano, 232 S.W.3d at 91.

When this occurs, the trial court’s erroneous denial of a challenge for cause

harms the defendant by wrongfully depriving him of at least one of his statutory

peremptory challenges that he could have used to remove the juror whom he has

identified as objectionable. Id.

The parties asserted their challenges for cause and peremptory challenges

at the conclusion of each prospective juror’s individual voir dire. Appellant

exhausted all fifteen of his statutory peremptory strikes and two additional strikes

granted by the court. (RR36: 176-77; RR37: 85). The court denied appellant’s

request for a third additional strike to exercise on Ernest Hand, whom appellant

identified as objectionable. (RR39: 90-91). Since appellant received two extra

peremptory challenges, appellant must show that the trial court erroneously

denied at least three of his challenges for cause to the other veniremembers

42

identified in issues one through twenty. See, e.g., Saldano, 232 S.W.3d at 93

(noting that the defendant would have to show the trial court erroneously denied

his challenges for cause to three of the complained-of venire members because

he received two extra peremptory strikes).

The Trial Court Properly Denied Appellant’s Challenges for Cause

Issue 1: Milton Powell

Appellant exercised his first peremptory strike against Milton Powell. (RR6:

161-62). At trial, appellant objected that Powell should be excused for cause

because (1) he was “death prone,” (2) he would give a police officer witness an

“elevated level of credibility,” and (3) he would find appellant guilty regardless of

the State’s failure to prove a “technicality.” (RR6: 160-61). On appeal, appellant

contends Powell also should have been excused because he would not give

meaningful consideration to appellant’s mitigation evidence. (Appellant’s Brief,

pp. 22-23).

Appellant’s complaint about Powell’s inability to consider his mitigation

evidence is not preserved for review because it was not raised at trial. See Tex. R.

App. P. 33.1(a) (providing that a timely specific trial objection is prerequisite to

43

presenting a complaint on appellate review). Nevertheless, appellant fails to

demonstrate error in the denial of his challenge on any ground argued on appeal.

“Death Prone”

Appellant claims Powell’s answers showed that, if he found appellant guilty

of capital murder, then he would automatically answer the special issues in such a

manner to return a death verdict. (Appellant’s Brief, p. 21-22). The record reflects

the contrary. During questioning by both sides, Powell described his duty to

follow the law governing the special issues as “a tremendous responsibility.” He

insisted that he would carefully consider the evidence as it related to those issues

and that he would not return a death sentence simply because he found appellant

guilty. When asked by defense counsel if his ability to follow the law would be

impaired if the offense involved the death of a child, Powell stated only that it

would influence his answers to the special issues and make his task more difficult.

(RR6: 120, 122, 124, 137, 140-41, 147-48, 155-56). The court properly concluded

that Powell was not death prone.

Police Officer Credibility

Appellant contends Powell’s answers showed he “would give any police

officer automatic credibility before hearing the witness” and that he “would judge

44

a law enforcement officer using a different criteria [sic] to determine credibility

than other witnesses.” (Appellant’s Brief, p. 22). In his questionnaire, Powell

stated that he believed police officers were more likely to tell the truth than the

average person. (RR6: 123). During questioning at trial, the prosecutor explained

to Powell that the law required him to treat all witnesses as equals at the outset,

and that he must wait until he heard their testimony before assessing their

credibility. Powell responded that he understood this law and would follow it.

(RR6: 123).

During questioning by defense counsel, Powell again admitted his tendency

to believe officers and to give them an “elevated level of credibility.” (RR6: 133).

Defense counsel did not question Powell about whether this tendency would

affect his ability to follow the law, however. Thus, this statement did not impeach

or contradict Powell’s earlier assurances during the prosecutor’s questioning on

the matter. Even if it did, the statement merely presented the trial court with a

fact question which it was free to resolve against appellant. Threadgill, 146

S.W.3d at 667 (holding particular deference is given to trial court’s ruling on a

challenge for cause when the prospective juror’s answers are vacillating, unclear,

or contradictory).

45

State’s Burden of Proof

Appellant contends Powell’s testimony showed that “he would have a hard

time finding someone not guilty if the State failed to prove all of the elements of

the indictment.” (Appellant’s Brief, p. 23). In support of this contention, appellant

cites Powell’s testimony during defense questioning that he would “probably still

convict” if the indictment alleged Dallas County but the State proved the crime

occurred in Tarrant County. (RR6: 130-31). Powell made similar statements on

two other occasions during defense questioning. (RR6: 137, 140). None of these

statements required Powell’s excusal for cause.

At trial, defense counsel challenged Powell for refusing to require the State

“to prove beyond a reasonable doubt all the allegations in the indictment . . .”

(RR6: 161). The State is not required to prove venue beyond a reasonable doubt.

Proof by a preponderance of the evidence satisfies the State’s burden. Tex. Code

Crim. Proc. Ann. art. 13.17 (West 2005). Admittedly, the State also misstated the

law governing its burden of proof on venue. (RR6: 107-08). Nevertheless, Powell

cannot be deemed biased for refusing to hold the State to a higher standard of

proof than the law requires. Tex. Code Crim. Proc. Ann. art. 35.16(c)(2).

46

Even if appellant was entitled to a juror who would require a greater

degree of proof, the court did not abuse its discretion in overruling the challenge

to Powell. When initially questioned by the prosecutor on the matter, Powell

stated that he would hold the State to its burden of proving every element,

including venue, beyond a reasonable doubt. (RR6: 107-08). Furthermore,

Powell’s statements during defense questioning that he “probably would still

convict” and that he “might overlook” or “tend to overlook that technicality”

were not emphatic refusals to hold the State to its burden. Thus, resolution of this

conflict in Powell’s testimony against appellant was reasonable and within the

court’s discretion. Threadgill, 146 S.W.3d at 667.

Mitigation Bias

Lastly, appellant contends Powell should have been excused because he

“could not give meaningful consideration to any mitigation that the defense

would rely on in punishment.” (Appellant’s Brief, p. 22). In support of this

contention, appellant refers to Powell’s questionnaire, in which he disagreed that

genetics, circumstances of birth, upbringing, and environment should be

considered when determining punishment. He also cites to Powell’s testimony

that he felt incarceration was an insufficient punishment for some crimes. Id.

47

No juror is required to consider any particular fact as mitigating. Standefer

v. State, 59 S.W.3d 177, 181 (Tex. Crim. App. 2001). Moreover, Powell made

repeated and unwavering statements about his ability to follow the law and

consider all of the evidence in answering the special issues. (RR6: 120, 122, 124).

This is all the law required of him. Thus, if the court had been presented with this

particular challenge, it would have been proper to deny it.

Powell was qualified to sit on the jury, and this Court should overrule Issue

1.

Issue 2: Georgia Nichols

Appellant exercised his second peremptory strike against venireperson

Georgia Nichols. (RR10: 121). At trial, appellant objected that Nichols should have

been excused for cause because (1) she would not hold the State to its burden of

proving guilt beyond a reasonable doubt and (2) she could not consider the

minimum punishment for the lesser-included offense of murder. (RR10: 118-19).

On appeal, appellant does not complain that Nichols should have been excused

for her position on the punishment range for murder. Thus, that ground is not

presented for review.

48

Appellant does present and argue the other ground raised at trial –

Nichols’s inability to hold the State to its burden of proof at guilt. Moreover, he

raises two new allegations: (1) that Nichols would automatically have assessed a

death sentence if she found him guilty of capital murder, and (2) that she was

“biased against any mitigation.”2 (Appellant’s Brief, p. 29-30). Because these two

new grounds were not raised at trial, they are not preserved for review on appeal.

Tex. R. App. P. 33.1(a). Nevertheless, appellant fails to demonstrate that Nichols

should have been excused for cause on any of the three grounds argued on

appeal.

State’s Burden of Proof

Appellant contends Nichols should have been excused because her prior

jury service biased her against the law that required her to acquit if the State

failed to prove guilt beyond a reasonable doubt. Appellant cites to Nichols’s

questionnaire in which she commented on the following statement: “Regardless

2

In his brief, appellant also makes passing references to Nichols’s questionnaire answers

related to police officer credibility and her opinion about the rehabilitation of capital

murderers. There is no accompanying argument nor were these answers raised at trial as a

basis for challenging Nichols. (Appellant’s Brief, p. 30; RR10: 118-19). If these references were

intended to present additional grounds for excusing Nichols, they are inadequately briefed and

will not be addressed by the State.

49

of what a judge says the law is, jurors should do what they believe is the right

thing.” Nichols agreed with the statement, saying, “I was on a criminal jury once;

everything pointed to crime, but we let the criminal go free, because of ‘evidence,

beyond a doubt’, which does not exist & is impossible if not witnessed; we let a

bad man on the loose to hurt other children – I will never let this happen again.”

(Nichols Questionnaire, p. 7).

Both sides questioned Nichols about this statement and her prior

experience as a juror. On both occasions, Nichols explained that she believed the

defendant in the prior trial was guilty and that she was the lone “hold-out” juror.

The other eleven jurors told her that she could not vote guilty unless she believed

he was guilty “beyond a shadow of a doubt” or unless she was 100% certain of his

guilt. She believed that the only way she could be that certain of guilt was if she

witnessed the crime herself. (RR10: 41-42, 98-99).

The prosecutor explained that the burden of proof was beyond a

reasonable doubt – not a shadow of a doubt – and that whatever convinced

Nichols beyond a reasonable doubt was sufficient to convict. Nichols quizzed the

prosecutor repeatedly to ensure that she understood the burden of proof if

selected for appellant’s jury. (RR10: 43-44, 73-74, 77-78). And when questioned

50

by defense counsel, she confirmed her accurate understanding of that burden.

(RR10: 98-99, 100-01, 103). Furthermore, the prosecutor explained to Nichols that

if the State failed to meet its burden on any element of the offense, she was

required to acquit. Nichols understood and agreed with this law and repeatedly

stated that she would hold the State to its burden, even if it meant an acquittal.

(RR10: 49-53).

Nichols never demonstrated an unwillingness to hold the State to proof

beyond a reasonable doubt. The statement in her questionnaire evinced only a

misunderstanding of the law, not a bias against it, and her testimony resolved

that misunderstanding. Thus, the court properly denied the challenge against her.

Death Prone

Appellant contends various answers in Nichols’s questionnaire show that

she would automatically assess a death sentence if she found someone guilty of

capital murder. While apparently acknowledging that Nichols’s testimony shows

she would follow the law governing the assessment of punishment, appellant

contends she was indoctrinated by the prosecutor and that her answers did not

reflect her true opinions. (Appellant’s Brief, pp. 29, 31). The record reflects

otherwise.

51

Although Nichols strongly favored the death penalty, she stated that she

could set aside her strong feelings and give full consideration to the evidence.

(RR10: 71). She also agreed that a sentence of life without parole was an extreme

punishment and that she could be satisfied with such a sentence. (RR10: 53, 97,

106). Furthermore, she stated on numerous occasions that she would wait and

consider the evidence at punishment when assessing the sentence, even if she

found the defendant guilty. Her answers were not merely one-word assents to

propositions by the prosecutor. By all appearances, Nichols was a thoughtful,

intelligent woman with a strong desire to follow the law. Her answers indicated

an understanding and agreement with that law. (RR10: 45, 49, 54-55, 61-63, 65,

71, 77, 77-78). Indeed, she answered the same way when posed similar questions

at length by defense counsel. (RR10: 93-94, 100, 102, 107-08, 111, 113). Not once

did Nichols waver or give a conflicting answer on the matter. If appellant had

challenged Nichols on this basis at trial, the denial of that challenge would have

been proper.

Mitigation Bias

Appellant contends Nichols was biased against any mitigation because in

her questionnaire she opined that genetics, circumstances, upbringing,

52

environment, and intoxication did not excuse criminal behavior. (Nichols

Questionnaire, pp. 6, 10). Nichols had no duty to consider any particular fact as

mitigating. Standefer, 59 S.W.3d at 181. She was only obligated to consider all the

evidence presented at trial in determining her answers to the special issues. She

unequivocally stated that she would do this, and she specifically stated that she

would consider any mitigating evidence presented. (RR10: 45, 49, 54-55, 71, 107-

08, 113). Thus, if the court had been presented with this particular challenge, it

would have been proper to deny it.

Nichols was qualified to sit on the jury, and this Court should overrule Issue

2.

Issue 3: Dee Jay Earley

Appellant exercised his third peremptory strike against Dee Jay Earley.

(RR12: 244). At trial, appellant challenged Earley for lying on his questionnaire and

refusing to consider evidence of intoxication in mitigation of punishment. (RR12:

238-43). On appeal, appellant contends the court should have granted his

challenge on both of these grounds. He also contends the court should have

excused Earley for cause because he was “death prone.” (Appellant’s Brief, pp.

32-35).

53

Because it was not raised at trial, the contention that Earley was death

prone is not preserved for appellate review. Tex. R. App. P. 33.1(a). Nevertheless,

appellant fails to demonstrate that Earley should have been excused for cause on

any of the three grounds argued on appeal.

Dishonesty in Questionnaire

Appellant contends Earley was dishonest because he did not reveal his

volunteer work as a victim’s advocate in his questionnaire. Appellant

characterizes the omission as an intentional deception. (Appellant’s Brief, pp. 34-

35). The record refutes this characterization.

Earley first mentioned his advocacy work during questioning by the

prosecutor. The information was not directly solicited. Earley volunteered it.

(RR12: 171-72). He testified that he served as a victim’s advocate during his

military service. It was not part of his regular duties; it was volunteer work that he

agreed to do at the request of his commanding officer. He volunteered for two

and a half years. He would assist victims of domestic assault, child abuse, etc. with

finding food and shelter for the night and obtaining restraining orders. The

offenses were typically minor; none involved a murder. (RR12: 171-72, 197-201).

54

Appellant claims that Earley should have provided the information in

response to Question 58 in his questionnaire. The question asked Earley to list

“any local, state or national citizens’ law enforcement group such as a crime

commission, group that supports the death penalty, group dedicated to victims’

rights, traffic commission, neighborhood crime watch, Mothers Against Drunk

Driving or police or sheriff’s auxiliary.” (Earley Questionnaire, p. 9). When the

court asked Earley why he did not list his military advocacy work in response to

this question, he explained that he did not belong to any organization. He and the

other volunteers did not meet as a group. He would simply get a phone call and

respond. Moreover, Earley explicitly denied any intent to deceive. (RR12: 239-43).

The court believed Earley and that credibility determination is entitled to

deference. (RR12: 243). It is amply supported by Earley’s explanation, by his

express denial of any intent to deceive, and by the fact it was he who first

volunteered the information. Thus, the court’s denial of this challenge was

proper.

Consideration of Intoxication Evidence

Appellant contends Earley was biased against any mitigation evidence

because he did not believe evidence of intoxication should be considered in

55

mitigation of punishment. (Appellant’s Brief, p. 34). Earley had no duty to

consider any particular evidence mitigating. Standefer, 59 S.W.3d at 181. He was

only obligated to consider all the evidence presented at trial in determining his

answers to the special issues. Although he did not regard intoxication evidence as

mitigating, he stated that he would consider it in answering the special issues.

(RR12: 157-58, 225-30). Thus, Earley evinced no bias against the law and the court

properly denied this challenge.

“Death Prone”

Appellant contends that Earley’s responses to some of the questions in his

questionnaire show that he would automatically assess a death sentence if he

found the defendant guilty of murder or crimes against the elderly or children.

(Appellant’s Brief, p. 33). Earley’s testimony dispelled any notion that he was

“death prone.”

Although Earley favored the death penalty for certain types of crimes, he

had no problem with assessing a sentence of life without parole. (RR12: 204). He

also repeatedly and unequivocally stated that he would hold the State to its

burden of proof on the first special issue, he would wait, listen to, and consider

the punishment evidence before answering the special issues, and he would not

56

automatically assess a death sentence just because he found appellant guilty.

(RR12: 151-54, 159-66, 183, 188-89, 202-06, 215, 218-19, 224). The law required

nothing more of Earley. Thus, any challenge that he was biased against the law

would have been properly denied.

Earley was qualified to sit on the jury, and this Court should overrule Issue

3.

Issue 4: Timothy Tinsley

Appellant exercised his fourth peremptory strike against Timothy Tinsley.

(RR14: 116). At trial, appellant challenged Tinsley because: (1) he was unable to

give “fair and accurate consideration to sufficient mitigating evidence”; (2) he was

unable “to start police officers on the same level of credibility as other

witnesses”; and (3) he was “death prone.” (RR 14: 110-11). On appeal, appellant

argues that the trial court abused its discretion in denying his challenge on all

three grounds. (Appellant’s Brief, p. 36-37). The record justifies the court’s ruling.

Mitigation Bias

Appellant contends Tinsley could not give full consideration to his

mitigation evidence because of the “history of alcoholism in his family with his

57

brother as well as his stepdad.” (RR14: 110, 112). Tinsley’s testimony

demonstrates otherwise.

Tinsley testified that his stepfather was an alcoholic who repeatedly went

to prison. Tinsley lived with his stepfather for a year and a half and moved out

when he turned 18. (RR14: 28-30, 78-80). Also, Tinsley acknowledged in his

questionnaire and at trial that his brother is a recovering alcoholic. (RR14: 82;

Tinsley Questionnaire, p. 10). Based on his experiences with his stepfather, as well

as the lessons of his biological father who was a drill sergeant, Tinsley believed

people should be held accountable for their actions. (RR14: 28-30). Furthermore,

he expressly stated that he would not characterize evidence of voluntary

intoxication as mitigating. (RR14: 80-81). Tinsley he had no duty to treat such

evidence as mitigating, however. Standefer, 59 S.W.3d at 181. He was only

obligated to consider any evidence of intoxication presented at trial by either side

in determining his answers to the special issues. Tinsley’s testimony reflects that

he could fulfill that duty.

Tinsley never stated that he would not consider evidence of intoxication or

drug use at punishment. He repeatedly assured both sides that he would have to

hear the evidence before making any decisions on sentencing and that he would

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wait and listen to the evidence in determining his answers to both special issues.

(RR14: 38, 46-47, 49-50, 57, 104). He explained what types of intoxication

evidence he would regard as mitigating, e.g., involuntary intoxication evidence.

(RR14: 80-81). Then, referencing his feelings about drug and alcohol abuse,

Tinsley avowed that his personal beliefs and the law “were two different things.”

(RR14: 85-86).

If there were any doubt as to Tinsley ability to consider voluntary

intoxication evidence at punishment, it was dispelled during the court’s

questioning of Tinsley on the matter. When asked if he could keep an open mind

as to any evidence either side might present on the punishment issues, Tinsley

said, “I think I can.” But when asked for a more definitive answer from the court,

Tinsley said, “I can.” (RR14: 113-15). Any vacillation in Tinsley’s answer was for

the trial court to resolve and that determination is entitled to deference.

Threadgill, 146 S.W.3d at 667.

Police Officer Credibility

Appellant contends Tinsley could not treat police officers the same as other

witnesses, starting them out on an equal basis. Tinsley’s testimony shows the

opposite.

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Tinsley stated that he would give a police officer “a little more respect”

than the “average Joe.” ((RR14: 105). But he was referring to how he would treat

them outside of the courtroom. (RR14: 106). In court, Tinsley would treat all

witnesses the same and wait until he heard the testimony to judge it, even if,

generally, he thought police were more credible. (RR14: 55-57). In Tinsley’s

opinion, “Everybody’s human, you know, so I would just – I would listen to the

story and how it’s presented to determine, yeah.” (RR14: 105). Tinsley held no

bias against the law governing police officer testimony, and the court properly

overruled this challenge.

“Death Prone”

Appellant contends that if he found appellant guilty of capital murder,

Tinsley would automatically answer the special issues in a manner that resulted in

a death sentence. (Appellant’s Brief, p. 36). Nothing in Tinsley’s testimony

supports this contention.

Throughout his testimony, Tinsley repeatedly stated that he would not

automatically vote for death if he found appellant guilty and that he would wait

and consider the evidence presented at punishment in answering the special

issues. (RR14: 38, 46-51, 57, 75, 86, 89, 104). By all appearances, Tinsley would

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fulfill his duty of waiting and considering all the evidence before he determined

his answers to the special issues. The court properly concluded that he was not

challengeable as “death prone.”

Tinsley was qualified to sit on the jury, and this Court should overrule Issue

4.

Issue 5: Robin Linn

Appellant exercised his fifth peremptory challenge against venireperson Robin

Linn. (RR14: 232). At trial, appellant objected that she was “death prone” and her

testimonial responses were disingenuous and motivated by a strong desire to get

on the jury. (RR14: 228-32).

Linn’s questionnaire and testimony demonstrated that she strongly favored

the death penalty and that she wanted to serve on the jury. (RR14: 127-28, 131-

32; Linn Questionnaire). Neither of these facts rendered Linn challengeable for

cause, however. And the remainder of Linn’s testimony demonstrates an

unequivocal understanding of and willingness to follow the law.

While she favored the death penalty, Linn stated that she did not believe it

was appropriate for all homicides and that such a decision would have to be

based on the particular facts and circumstances of each case. (RR14: 132-36). She

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would not refuse to consider any punishment evidence, she would not answer the

first issue affirmatively simply because she found appellant guilty of capital

murder, and she believed that the special issues were a fair method for assessing

whether the death penalty was appropriate. (RR14: 161-63, 169-70, 174). She

could envision a scenario where a murderer might not be a future danger and

where mitigating circumstances might warrant a life sentence. (RR14: 200, 210).

And although she would like to know if a defendant were remorseful, she would

not require him to testify to such in assessing his sentence. She understood that a

defendant might feel remorseful but be unable to testify at trial for a variety of

reasons. (RR14: 183, 201-02).

Appellant argued that Linn’s demeanor during questioning told another

story. According to defense counsel, Linn was simply saying what she needed to

say to get on a death penalty jury. But Linn’s desire to serve on appellant’s jury

was not motivated by a bloodlust. It was motivated by her faith in the system and

her sense of civic duty. (RR14: 127-28). Her thoughtful explanations and

responses throughout questioning by both sides evinced an intelligent woman

who understood the gravity of serving in death penalty trial and who took the

responsibility seriously.

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Defense counsel argued that Linn’s demeanor suggested otherwise. The

prosecutor disputed that characterization. (RR14: 231). The trial court apparently

disagreed as well because it overruled the challenge. (RR14: 232). The court’s

determination is entitled to deference and is amply supported by Linn’s

testimony, as detailed above.

Linn was qualified to sit on the jury, and this Court should overrule Issue 5.

Issue 6: Charles Stout

Appellant exercised his sixth peremptory strike against venireperson

Charles Stout. (RR16: 77). At trial, appellant objected that Stout would hold the

decision not to testify against appellant, that he would put the burden of proof on

appellant, that he would not presume appellant innocent, and that he did not

understand the Texas death penalty sentencing scheme. (RR16: 74-76). On

appeal, appellant focuses on one ground – holding his failure to testify against

him. (Appellant’s Brief, pp. 44-45). The court’s rejection of this challenge was

proper.

Appellant’s contention that Stout would hold his failure to testify against

him is premised on a mischaracterization of Stout’s testimony. Although he would

testify if he were a defendant, Stout repeatedly denied that he would hold

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another’s decision not to testify against him. Stout agreed that the defendant has

no burden of proof, and he acknowledged that there could be a variety of reasons

a defendant might not testify that had nothing to do with his guilt or innocence.

(RR16: 36-38).

Stout did not equivocate or change his opinion when questioned on the

matter again by defense counsel. He reiterated the responses he gave the

prosecutor during earlier questioning. He also more specifically testified that he

would not hold the decision not to testify against appellant in determining his

guilt or innocence or in answering either of the special issues. (RR16: 47-48, 63-

65). Stout’s clear and unwavering responses show that he held no bias against

appellant’s Fifth Amendment right not to testify and would not consider it in his

deliberations.

Stout was qualified to sit on the jury, and this Court should overrule Issue 6.

Issue 7: Allen Harrington

Appellant exercised his seventh peremptory strike against venireperson

Allen Harrington. (RR23: 82). At trial, appellant objected that Harrington could not

consider evidence of intoxication, background, social issues, and expert mental

health testimony. (RR23: 81-82). On appeal, appellant argues that the trial court

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should have granted his challenge on that basis and on the ground that

Harrington would automatically assess a death sentence if he found appellant

guilty of capital murder. (Appellant’s Brief, pp. 47-48).

Because the second ground was not raised at trial, it is not preserved for

appellate review. Tex. R. App. P. 33.1(a). Nevertheless, appellant fails to

demonstrate that Harrington should have been excused for cause on either

ground argued on appeal.

Mitigation Bias

Appellant contends that Harrington’s questionnaire responses and his

testimony show that he would not consider evidence of genetics, background,

environment, intoxication, or expert mental health testimony in answering the

mitigation special issue. In actuality, Harrington’s testimony shows that he would

consider such evidence, but that he did not regard it as mitigating. (RR23: 46, 77-

78). Harrington he had no duty to treat such evidence as mitigating. Standefer, 59

S.W.3d at 181. He was only obligated to consider any evidence presented in

determining his answer to the mitigation special issue. Harrington’s testimony

reflects that he could fulfill that duty.

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He stated that he would listen to the evidence and decide whether it was

sufficiently mitigating. He agreed that the needed to wait and listen because “you

never know what you’ll hear.” He also stated that his opinion about intoxication

and background evidence in particular would not prevent him from given it

consideration. (RR23: 77-78). Thus, the court properly denied this challenge.

“Death Prone”

Appellant contends Harrington’s questionnaire responses reflect that he

would automatically assess a death sentence if he found appellant guilty.

Harrington’s testimony reflects otherwise.

Harrington stated that although he strongly favors the death penalty, he

would not automatically assess it if he found appellant guilty. (RR23: 27, 38-39).

He agreed to wait and consider any evidence that would be offered on the special

issues. (RR23: 38-39). He understood that the State had the burden of proof on

the first issue and that he would hold the State to that burden. (RR23: 42-44). He

acknowledged that he would set the bar very high on the mitigation issue, but he

also stated that he wanted to hear evidence on the issue and that he would wait

and consider it before assessing any sentence “because you never know.” (RR23:

46-48).

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Appellant attacks the veracity of Harrington’s testimony. He argues that

“Harrington was being more truthful when answering the questionnaire than

when being examined” and that he “obviously wished to be on the jury and had

been instructed by the State as to arrive there.” (Appellant’s Brief, p. 47). The

totality of Harrington’s testimony showed he was an intelligent man with a firm

grasp of the law and a commitment to following it. Furthermore, Harrington

explained that he was in a hurry when he filled out the questionnaire because he

had to pick someone up from the airport. (RR23: 73-75). The court could have

reasonably concluded that Harrington was rushed in his answers and took less

care than if he had not been in such a hurry. Regardless, the trial court disagreed

with appellant’s characterization of Harrington’s testimony and that

determination is entitled to deference. Threadgill, 146 S.W.3d at 667.

Harrington was qualified to sit on appellant’s jury. This Court should

overrule Issue 7.

Issue 8: Anthony Morrison

Appellant exercised his eighth peremptory strike against venireperson

Anthony Morrison. (RR24: 88). At trial, appellant objected that Morrison equated

a death sentence with a guilty verdict on capital murder or murder and would not

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consider certain types of mitigating evidence in answering the second special

issue. (RR24: 78-79). On appeal, appellant contends the trial court abused its

discretion in denying his challenge on both of these grounds. (Appellant’s Brief, p.

49-52). The record supports the court’s ruling.

“Death Prone”

Appellant argues Morrison’s feelings about the death penalty were so

strong that he would assess it as soon as the State proved appellant guilty of

capital murder. In support, appellant cites Morrison’s questionnaire responses

and a portion of his testimony during defense counsel’s examination. (Appellant’s

Brief, p. 52).

Morrison did not dispute that he strongly favored the death penalty, but he

also stated that he was open to a sentence of life without parole. (RR24: 17-18,

29, 64-65). Then he repeatedly stated that even though he thought someone

convicted of capital murder should get the death penalty, he would not let that

feeling determine the punishment he assessed. Rather, he would apply the

evidence to the law and let it determine his answers to the special issues and,

consequently, the sentence. (RR24: 58-59, 61-62, 71, 73-74). The totality of

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Morrison’s testimony shows that he would not assess an automatic death

sentence, and the court properly overruled this challenge.

Mitigation Bias

Appellant argues that Morrison was unable to give meaningful

consideration to mitigation evidence that he intended to rely on. To the contrary,

the record reflects that Morrison would consider appellant’s evidence of

background, environment, etc. Throughout his testimony, Morrison told both

sides and the court the same thing. He felt that a person’s background and

upbringing do not excuse criminal behavior. Yet he would set aside those personal

feelings and consider such evidence in answering the second special issue. (RR24:

41-42, 73-74, 84-85). At most, Morrison’s testimony shows that he might not

regard appellant’s evidence of background, environment, etc. as mitigating. This

did not render him challengeable because Morrison had no duty to treat any

particular evidence as mitigating. Standefer, 59 S.W.3d at 181.

Morrison was qualified to sit on appellant’s jury. This Court should overrule

Issue 8.

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Issue 9: Enriquez Martinez

Appellant exercised his ninth peremptory challenge against venireperson

Enriquez Martinez. (RR25: 205). At trial, appellant objected that Martinez would

automatically assess a death sentence and that he would not give adequate and

proper consideration to appellant’s mitigation evidence. (RR25: 202). On appeal,

appellant contends the trial court abused its discretion in denying his challenge on

both these grounds and should also have excused Martinez because he would

have required appellant to testify.

Because the third ground was not raised at trial, it is not preserved for

appellate review. Tex. R. App. P. 33.1(a). Nevertheless, appellant fails to

demonstrate that Martinez should have been excused for cause on any of the

three grounds argued on appeal.

“Death Prone”

Appellant argues that Martinez’s questionnaire responses show that he

would automatically assess a death sentence if he found appellant guilty of capital

murder. Martinez’s responses showed that he strongly favored the death penalty;

they did not show that he would automatically assess it. (Martinez

Questionnaire). Moreover, as appellant pointed out in his trial objection,

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Martinez’s testimony demonstrates that he understood and would follow the law

in determining appellant’s punishment. He repeatedly and emphatically

differentiated between his feelings and the law and insisted that his feelings

would not prevent him from following the law. He thought the special issues

“process” was fair and preferable to jurors simply voting life or death. He would

apply the evidence to the special issues and let that determine the punishment.

(RR26: 160, 169-70, 172-76, 182, 191). He was not death prone and the court

properly denied this challenge.

Mitigation Bias

Appellant argues that Martinez would not give adequate consideration to

his mitigation evidence because he did not think a defendant’s background,

intoxication, or mental health excused their crime. Martinez’s testimony shows

that he would listen to any evidence appellant presented on the second special

issue, including background, intoxication, etc., but he would not regard it as

mitigating. This did not disqualify him from service because Martinez had no duty

to treat any particular evidence as mitigating. Standefer, 59 S.W.3d at 181. The

court properly denied this challenge as well.

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Failure to Testify

Finally, appellant argues that Martinez would require appellant to testify in

violation of his Fifth Amendment right against self-incrimination. Martinez denied

this. Martinez said that he would be looking for signs of remorse or regret if a

defendant did testify, but that he understood and respected the Fifth

Amendment right and that a defendant’s decision not to testify would not affect

his verdict. (RR26: 162, 182-84). Thus, any challenge that Martinez was biased

against Fifth Amendment law would have been properly denied.

Martinez was qualified to sit on appellant’s jury. This Court should overrule

Issue 9.

Issue 10: Paul Zugelder

Appellant exercised his tenth peremptory strike against venireperson Paul

Zugelder. (RR27: 226). At trial, appellant argued that Zugelder should be excused

because the court and the prosecutor left him with the impression that defense

counsel was misstating the law. On appeal, appellant reasserts this ground and

claims the court abused its discretion in denying the challenge. (Appellant’s Brief,

p. 59). Apparently, it is appellant’s contention that the alleged misimpression

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biased Zugelder against the defendant. See Tex. Code Crim. Proc. Ann. art. 35.16

(a)(9). The record reflects no such bias.

Initially, defense counsel did make a misstatement of law. The

misstatement arose during defense counsel’s discussion of the concept of

“mercy” and its relevance to mitigation special issue. When he first explained the

law to Zugelder, defense counsel stated, “*T+he law specifically tells us, that a

juror’s concept of mercy, a juror’s concept of mercy alone based on anything they

have heard in the case is sufficient, if they believe it’s sufficient.” (RR27: 196-97).

The prosecutor objected to this misstatement. Mercy could not be based on

anything heard during trial; it had to be based on evidence. Defense counsel

agreed and clarified his prior statement, and then the court sustained the

objection. (RR27: 197).

When defense counsel continued his explanation, the prosecutor objected

again to him omitting the phrase “based on the evidence.” Defense counsel

correctly noted that he had not omitted that phrase and then finished his

explanation of the law. The prosecutor disagreed with defense counsel, but the

court remained silent. (RR27: 198-99).

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At this point, Zugelder interrupted and informed the court that he was

confused about whether the law permitted him to disregard the mitigation

special issue and assess life out of mercy. (RR27: 199). Thus, although defense

counsel had not misstated the law, he had left a false impression with the juror.

The court dispelled Zulgelder’s confusion, explaining that he could answer the

mitigation issue affirmatively based on mercy if that decision was based on some

evidence at trial. (RR27: 199-01). Defense counsel and Zugelder continued to

discuss the issue and, eventually, defense counsel acknowledged, “Maybe I didn’t

explain that too well to you the first time . . .” (RR27: 202-04).

In short, defense counsel did misstate the law initially and he did leave a

false impression with Zugelder. Thus, if Zugelder had reacted negatively to

defense counsel’s miscommunications, that would have been counsel’s fault.

Zugelder did not react negatively, however. He remained communicative and

engaged throughout the entirety of defense counsel’s questioning. He remarked

on counsel’s candor and, in return, was himself candid. He did not express anger

or even frustration. By all appearances, he was emotionally unaffected by the

exchange and was concerned only with understanding the law and answering

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questions honestly. (RR27: 196-207). The trial court reasonably concluded the

same and properly denied this challenge.

Zugelder was qualified to sit on appellant’s jury, and this Court should

overrule Issue 10.

Issue 11: David Hornstein

Appellant exercised his eleventh peremptory challenge against

venireperson David Hornstein. (RR28: 116). At trial, appellant objected that

Hornstein would not give consideration to appellant’s mitigation evidence at

punishment. Specifically, he would not consider appellant’s character and

background, mental health, or voluntary intoxication. (RR28: 114-15). On appeal,

appellant claims the trial court abused its discretion in denying his challenge on

this ground. (Appellant’s Brief, p. 60-61).

Hornstein’s testimony shows that he would listen to any evidence appellant

presented on the second special issue, including background, intoxication, and

mental health evidence, but that he might not regard it as mitigating. (RR28: 53-

54, 61-63, 67, 95-112). This did not disqualify him from service because Hornstein

had no duty to treat any particular evidence as mitigating. Standefer, 59 S.W.3d at

181. The court properly denied this challenge.

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Hornstein was qualified to serve on appellant’s jury, and this Court should

overrule Issue 11.

Issue 12: Andrea Griffith

Appellant exercised his twelfth peremptory challenge against venireperson

Andrea Griffith. (RR30: 84). At trial, appellant objected that Griffith would not

consider his mitigation evidence at punishment. Specifically, she would not

consider genetics, background, upbringing, environment, or voluntary

intoxication. (RR30: 82-83). On appeal, appellant claims the trial court abused its

discretion in denying his challenge on this ground. (Appellant’s Brief, p. 60-61).

Griffith’s testimony shows that she would listen to any evidence appellant

presented on the second special issue, but that she might not regard it as

mitigating. (RR30: 58-59, 65, 70-76). This did not disqualify her from service

because she had no duty to treat any particular evidence as mitigating. Standefer,

59 S.W.3d at 181. The court properly denied this challenge.

Griffith was qualified to serve on appellant’s jury, and this Court should

overrule Issue 12.

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Issue 13: Bradford McCutheon

Appellant exercised his thirteenth peremptory strike against venireperson

Bradford McCutheon. (RR31: 112). At trial, appellant objected that McCutheon

would not be able to give fair and accurate consideration to the special issues.

(RR31: 111). On appeal, appellant contends the trial court abused its discretion in

denying this challenge. (Appellant’s Brief, pp. 64-65). The record supports the

court’s ruling.

Appellant argues that McCutheon’s questionnaire and testimony show that

he would automatically assess a death sentence if he found appellant guilty of

capital murder. (Appellant’s Brief, p. 65). Although McCutheon’s responses

showed that he strongly favored the death penalty, they also showed that he

would not automatically assess it. Throughout his testimony, McCutheon

repeatedly and expressly stated that he would not automatically answer the

special issues “yes” and “no” just because he found someone guilty of capital

murder. He also denied that he would let his feelings rather than the law control

his answers to the issues. He stated that he would follow the law, keep an open

mind to any evidence presented, and let the evidence determine his answers.

(RR31: 35, 46-48, 51, 53, 57, 59-60, 82-84,87-89, 102-03). He thought that the

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process of answering the special issues made sense and was better than jurors

simply voting for a life or death sentence. (RR31: 61, 75-76). He was not death

prone and the court properly denied this challenge.

McCutheon was qualified to serve on appellant’s jury, and this Court should

overrule Issue 13.

Issue 14: Elvira Corpus

Appellant exercised his fourteenth peremptory against venireperson Elvira

Corpus. (RR3: 70). At trial, appellant objected that Corpus would automatically

assess a death sentence if she found him guilty of capital murder and that she

would not consider his mitigating evidence. (RR33: 68-69). On appeal, appellant

argues that the trial court abused its discretion in denying his challenge on both

these grounds. He also argues that the court should have excused Corpus because

she would not fairly assess the credibility of police officers. (Appellant’s Brief, pp.

66-68).

Because the third ground was not raised at trial, it is not preserved for

appellate review. Tex. R. App. P. 33.1(a). Nevertheless, appellant fails to

demonstrate that Corpus should have been excused for cause on any of the three

grounds argued on appeal.

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“Death Prone”

Appellant argues that Corpus’s questionnaire responses and testimony

both show that she would automatically assess a death sentence if she found

appellant guilty of capital murder. In particular, he cites responses in her

questionnaire that show she strongly supports the death penalty. He also cites

two excerpts from her testimony in which she appears to be saying that she

would automatically answer the mitigation issue “no.” (Corpus Questionnaire, pp.

2, 5-6; RR33: 55-56).

Corpus’s questionnaire showed that she strongly favored the death

penalty, but it also showed that she did not think it was appropriate in every case.

(Corpus Questionnaire, p. 1). Nowhere in her questionnaire did she state that she

thought a death sentence should be automatically assessed. (Corpus

Questionnaire).

The two testimonial excerpts appellant cites show only that Corpus was

confused by and misunderstood defense counsel’s questions at one point. The

prosecutor objected to the nature of defense counsel’s questions several times

during these excerpts, and Corpus expressed her confusion. (RR33: 58-59). Both

before and after those two exchanges, Corpus consistently maintained that she

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would not automatically answer either issue, that she would wait and listen to the

evidence, and that she would keep an open mind. (RR33: 22, 25, 27-30, 34-35, 40-

41, 49-50, 60-66). To the extent Corpus made any statements that reflected

otherwise, the conflict was the court’s to resolve, and it resolved it against

appellant. That determination was proper and is entitled to deference. Threadgill,

146 S.W.3d at 667.

Mitigation Bias

Appellant argues that Corpus would not give adequate consideration to his

mitigation evidence because she did not think evidence of background,

intoxication, or mental health excused crime. Corpus’s testimony shows that she

would listen to any evidence appellant presented on the second special issue, but

she might not regard it as mitigating. (RR33: 63-66). This did not disqualify her

from jury service because Corpus had no duty to treat any particular evidence as

mitigating. Standefer, 59 S.W.3d at 181. The court properly denied this challenge

as well.

Police Officer Credibility

Appellant contends Corpus was biased because she thought “police officers

were more likely to tell the truth.” (Appellant’s Brief, p. 67). Corpus did make that

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statement in her questionnaire. (Corpus Questionnaire, p. 5). But at trial, Corpus

agreed that all witnesses start out on equal footing and that she would wait and

listen to an officer’s testimony before determining his credibility. (RR33: 38-39).

Thus, Corpus held no bias against the law governing police officer testimony, and

the court properly overruled this challenge.

Corpus was qualified to serve on appellant’s jury, and this Court should

overrule Issue 14.

Issue 15: Temple Koestner

Appellant exercised his fifteenth peremptory strike against venireperson

Temple Koestner. (RR33: 157). At trial, appellant objected that Koestner would

automatically equate a guilty verdict with a death sentence and that she would

not consider his mitigation evidence. (RR33: 154-55). On appeal, appellant argues

that the trial court abused its discretion in denying his challenge on both these

grounds. He also argues that the court should have excused Koestner because she

would not fairly assess the credibility of police officers and because she would

disregard the court’s instructions. (Appellant’s Brief, pp. 66-68).

Because these two additional grounds were not raised at trial, they are not

preserved for appellate review. Tex. R. App. P. 33.1(a). Nevertheless, appellant

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fails to demonstrate that Koestner should have been excused for cause on any of

the four grounds argued on appeal.

“Death Prone”

Appellant contends Koestner’s questionnaire responses show that she was

prone to vote for death if she found him guilty of capital murder. (Appellant’s

Brief, pp. 70-71). In actuality, her questionnaire shows only that she strongly

favored the death penalty and that she thought it was an appropriate punishment

in some murder cases, not all. She considered the death penalty and life without

parole equally severe sentences. (Koestner Questionnaire, pp. 1, 3).

Koestner’s testimony also shows that she was not predisposed to assess a

death sentence. She confirmed her opinion that a life sentence was as severe as

the death penalty. She repeatedly stated that she would not automatically assess

a death sentence if she found him guilty. She said her feelings favoring the death

penalty would not prevent her from following the law. She would keep an open

mind to the evidence presented, and she would wait and apply the evidence to

the special issues. (RR33: 87, 92, 99, 108, 116-17, 132-37, 148-49). At one point

during questioning by defense counsel, Koestner became confused about

whether counsel was asking her about her feelings or her ability to follow the law

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in assessing punishment. (RR33: 142-46). To the extent Koestner’s answers during

that exchange created any conflict in her testimony, that conflict was the court’s

to resolve and it resolved it against appellant. Threadgill, 146 S.W.3d at 667.

Given the totality of Koestner’s testimony, that decision was reasonable and

proper.

Mitigation Bias

Appellant argues that Koestner would not give adequate consideration to

his mitigation evidence because on her questionnaire, she stated that she did not

think evidence of genetics, environment, upbringing, and background should be

considered when determining punishment. (Koestner Questionnaire, p. 6). At

trial, however, Koestner testified that she would set aside those feelings and

consider the evidence in determining her answers to the special issues. (RR33:

149-52). At most, her testimony and questionnaire showed that she might not

regard such evidence as mitigating. This did not disqualify her from jury service

because Koestner had no duty to treat any particular evidence as mitigating.

Standefer, 59 S.W.3d at 181. The court properly denied this challenge as well.

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Police Officer Credibility

Appellant contends Koestner was biased because in her questionnaire she

agreed that “police officers were more likely to tell the truth.” (Appellant’s Brief,

p. 71). In addition to that statement, Koestner added, “With cameras in the cars

now the officers have to tell the truth. The cameras don’t lie.” (Koestner

Questionnaire, p. 5). But at trial, Koestner agreed that all witnesses start out on

equal footing and that she would wait and listen to each witness’s testimony

before determining his credibility. (RR33: 118-19). Thus, Koestner held no bias

against the law governing police officer testimony, and the court properly

overruled this challenge.

Following Court’s Instructions

Appellant contends Koestner’s response to question 41 in her

questionnaire shows that she would not follow the court’s instructions on the

law. In question 41, Koestner agreed with the statement, “Regardless of what a

judge says the law is, jurors should do what they believe is the right thing.” She

also added, “The jury must do as instructed, but can give the judge what they

believe is right.” (Koestner Questionnaire, p. 7).

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No one questioned Koestner about this statement during her testimony or

explained the law to her. Without first explaining to her that the law required

jurors to follow the court’s instructions, Koestner could not be deemed biased

against the law. Threadgill, 146 S.W.3d at 667. Moreover, the totality of

Koestner’s testimony shows that she understood and considered herself duty

bound to follow the law if selected for the jury. Thus, if appellant had challenged

Koestner on this basis at trial, denial of that challenge would have been proper.

Koestner was qualified to serve on appellant’s jury, and the Court should

overruled Issue 15.

Issue 16: Nancy Munn

Appellant exercised his sixteenth peremptory strike against venireperson

Nancy Munn. (RR36: 176-77). At trial, appellant objected that Munn was “death

prone,” would not hold the State to its burden of proof regarding a “technicality,”

and would presume police officers were more credible. (RR36: 170-74). On

appeal, appellant contends the trial court abused its discretion in denying the

foregoing challenges. (Appellant’s Brief, pp. 75-78). The record reflects otherwise.

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“Death Prone”

Appellant contends Munn so strongly favored the death penalty that she

would automatically answer the future dangerousness special issue affirmatively

if she found him guilty of capital murder. He claims she would also automatically

answer the second special issue “no” if she found him to be a future danger.

(Appellant’s Brief, pp. 74-78).

Although Munn’s questionnaire and testimony both show her strong

support for the death penalty, her testimony shows that her feelings would not

affect her ability to follow the law and assess a sentence based on the law and the

evidence. Munn stated that she believed there could be some cases where life

without parole would be an appropriate sentence. (RR36: 112). She also stated

that she believed some people could be rehabilitated. (RR36: 113). During

questioning by both sides, she repeatedly stated that she would not automatically

answer either special issue, that she thought the special issues were fair, and that

she would consider any evidence offered in determining her answers to the

issues. She also stated that she believed there could be evidence that would

convince her appellant deserved a life sentence. (RR36: 117, 129-30, 134-35, 143-

44, 150-62).

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Appellant argues that some of Munn’s answers were equivocal,

demonstrating an uncertainty about her ability to follow the law. Any

equivocation in Munn’s answers was for the trial court to resolve, and it was

resolved against appellant. That determination is entitled to deference and is

supported by the totality of Munn’s testimony. Threadgill, 146 S.W.3d at 667.

State’s Burden of Proof

Appellant argues that Munn could not hold the State to its burden of proof

on the issue of guilt because she would have difficulty acquitting someone based

on the State’s failure to prove a “technicality,” such as venue in Dallas County.

(Appellant’s Brief, p. 77). Munn’s testimony reflects, however, that she

understood the State’s burden and her duty if the State failed to meet it. (RR36: ).

When presented with the scenario of the State failing to prove venue, Munn

stated, “It would have to be that he was innocent because it had to be in Dallas

County.” (RR36: 124). During defense questioning, Munn expressed some distress

at being put in the position of acquitting in that scenario. Still, she stated that she

believed she could follow the law and acquit. (RR36: 145-47). The court properly

found no bias on this basis.

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Police Officer Credibility

Appellant argues that Munn would give police officers more credibility than

other witnesses. (Appellant’s Brief, p. 76). The record reflects the opposite. In her

questionnaire, Munn stated that she believed police officers are more likely to tell

the truth than the average person. But she also wrote, “I think they are people so

they make mistakes, however & also I think that suit gives some people a

perceived power.” (Munn Questionnaire, p. 5). Furthermore, during her

testimony, Munn stated that she would treat all witnesses the same, that she did

not believe everyone tells the truth all of the time, and that police officers are

human. She also stated that she would not automatically find an officer credible,

but would wait and listen to their testimony to judge their credibility. (RR36: 162-

63). The court properly concluded that Munn held no bias in favor of a police

officer’s testimony.

Munn was qualified to serve on appellant’s jury, and this Court should

overrule Issue 16.

Issue 17: Ernest Hand

Appellant requested additional strike to eliminate venireperson Ernest

Hand. The trial court denied the request, having already given appellant two

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additional strikes.3 (RR39: 90-91). At trial, appellant objected that Hand was

“death prone.” (RR39: 89-90). On appeal, appellant contends the trial court

abused its discretion in denying this challenge. He also argues that the court

should have excused Hand because he would not fairly assess the credibility of

police officers and would not consider appellant’s mitigation evidence.

(Appellant’s Brief, pp. 80-81). Because the two additional grounds were not raised

at trial, they are not preserved for appellate review. Tex. R. App. P. 33.1(a).

Nevertheless, appellant fails to demonstrate that Hand should have been excused

for cause on any of the three grounds argued on appeal.

“Death Prone”

Appellant argues that Hand was “death prone” because he strongly favored

the death penalty. In support of this contention, appellant cites Hand’s

questionnaire in which he stated that he thought the death penalty was used to

seldom and that it took too long to administer. Also, he stated that he thought

the justice system was too lenient, slow, and inconsistent. (Appellant’s Brief, p.

80).

3

Appellant exercised his second extra strike (strike 17) against venireperson Robin Schwartz

(RR37: 85). He challenged Schwartz for cause at trial, but does not complain about the denial of

that challenge on appeal. (RR37: 81-83).

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Although Hand did strongly support the death penalty, his questionnaire

reflects that he did not think it should be applied in all murder cases.

Furthermore, during his testimony, Hand stated that he believed some murderers

deserve a life sentence. He also testified that he would not automatically assess a

death sentence. He would wait and listen to the evidence and apply it to the

special issues. (RR39: 27, 32, 37, 43-46, 64-65, 75-78, 83). The trial court properly

denied this challenge.

Police Officer Credibility

Appellant argues that Hand was biased toward police officers. (Appellant’s

Brief, p. 80). In support of this argument, appellant cites Hand’s questionnaire in

which he stated that he agreed police officers were more likely to tell the truth

than the average person. According to Hand, “They are more accountable.” (Hand

Questionnaire, p. 5).

On their own, Hand’s statements in his questionnaire do not evince a bias

in favor of officers. His statements reflect only that he expects officers to be

truthful, not that he will automatically find them more credible. Furthermore,

Hand testified that he understood he must treat all witnesses, including officers,

alike, and wait until they testified to assess their credibility. (RR39: 44-46). Thus, if

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appellant had challenged Hand on this basis at trial, denial of that challenge

would have been proper.

Mitigation Bias

Appellant argues that Hand would not give adequate consideration to his

mitigation evidence because on her questionnaire, he stated that he did not think

evidence of genetics, environment, upbringing, and background should be

considered when determining punishment. In addition, he wrote that “there is no

circumstance that gives a person the right to murder except in personal danger.”

(Hand Questionnaire, p. 6).

At trial, Hand testified that he would listen to any evidence presented on

the special issues. (RR39: 43, 64-65, 75). At most, Hand’s questionnaire showed

that he might not regard evidence of background, environment, etc. as mitigating.

This did not disqualify him from jury service. Hand had no duty to treat any

particular evidence as mitigating. Standefer, 59 S.W.3d at 181. Thus, if appellant

had challenged Hand on this basis at trial, denial of that challenge would have

been proper as well.

Hand was qualified to serve on appellant’s jury, and this Court should

overrule Issue 17.

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Issue 18: Elizabeth McDaniel

Appellant challenged McDaniel on the basis that she was death prone and

would automatically assess a death sentence if she found the appellant guilty of

capital murder. Appellant argued that he did not believe she would give adequate

consideration to special issue number one. He also argued that, with regard to

special issue number two, she would require him to testify and show remorse in

violation of his Fifth Amendment rights. (Appellant’s Brief, pp. 81-83).

Nothing in McDaniel’s questionnaire or testimony supports appellant’s

contentions. McDaniel’s questionnaire showed that she strongly favored the

death penalty, but it also showed that she did not think it was appropriate in

every case. (McDaniel Questionnaire, p. 1). Nowhere in her questionnaire did she

state that she thought a death sentence should be automatically assessed.

(McDaniel Questionnaire). Throughout her testimony, McDaniel repeatedly

affirmed that she would not automatically vote for death if she found appellant

guilty and that she would wait and consider the evidence presented at

punishment in answering the special issues. (RR39: 134, 142-43, 156-58, 163,

165). She affirmed her understanding of special issue number one and that the

jury could not answer that issue “yes” unless the State met its burden of proof.

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(RR39: 134-38, 160-62). She affirmed that if she heard sufficiently mitigating

evidence she could assess a life sentence. (RR39: 141). She stated her

understanding that a defendant does not have testify and confirmed that she

would follow the court’s instruction not to consider a defendant’s failure to testify

for any purpose during her deliberation. (RR39: 144, 166).

McDaniel was qualified to sit on the jury, and this Court should overrule

Issue 18.

Issue 19: Arleen Jimenez

Appellant challenged Jimenez on the basis that she would automatically

assess the death penalty if she found the defendant guilty of capital murder. He

also challenged her on the basis that she viewed the death penalty as a deterrent

and was not used enough. (Appellant’s Brief, pp. 83-85).

Jimenez’s questionnaire shows only that she strongly favored the death

penalty and that she thought it was an appropriate punishment in some murder

cases, not all. She considered the death penalty and life without parole equally

severe sentences. (Jimenez Questionnaire, pp. 1-2). Further, Jimenez’s testimony

shows that she was not predisposed to assess a death sentence. Jimenez stated

that she could follow the law and not automatically give someone a death

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sentence just because they have been found guilty. (RR40: 39-40, 48, 56, 60). She

affirmed that she would keep an open mind and wait to hear all the evidence

before she answered special issues. (RR40: 42, 48, 57-60, 62, 71-72). Appellant

fails to demonstrate that Jimenez had a bias against him or the law in any way.

Jimenez was qualified to sit on the jury, and this Court should overrule

Issue 19.

Issue 20: Dan Blanks

In his final issue, appellant complains that the trial court improperly denied

his challenge for cause against Dan Blanks. However, Mr. Blanks was the alternate

and did not participate in jury deliberations. As such, appellant cannot show he

was harmed by the trial court’s ruling on his challenge for cause against Blanks.

In any event, appellant’s claims are without merit. Appellant challenged

Blanks on the basis that he equated the death penalty with a guilty verdict. On

appeal, appellant also argues that Blanks thought police officers were more likely

to tell the truth that the average person. (Appellant’s Brief, pp. 84-85). Because

this additional ground was not raised at trial, it is not preserved for appellate

review. Tex. R. App. P. 33.1.

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Blanks’ questionnaire showed that he strongly favored the death penalty,

but it also showed that he did not think it was appropriate in every case. (Blanks

Questionnaire, p. 1). Nowhere in his questionnaire did he state that he thought a

death sentence should be automatically assessed. (Blanks Questionnaire). During

his testimony, Blanks affirmed that he would not automatically vote for death if

he found appellant guilty and that he would wait and consider all the evidence

before making any decision on how to answer the special issues. (RR41: 36-37, 48-

49, 53, 59-60, 64). He also affirmed that he would judge the credibility of the

witness based on their testimony, not before he or she testifies. (RR41: 38-39). As

such, Blanks was qualified to sit on the jury, and this Court should overrule Issue

20.

Conclusion

Appellant has not shown even one erroneous ruling on his challenges for

cause, much less three erroneous rulings. Therefore, he has not shown this Court

that he was denied the use of a statutorily provided peremptory strike. Issues 1

through 20 should be denied.

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Issues 21 and 22: Constitutional Right To Fair And Impartial Jury

In Issues 21 and 22, appellant contends the trial court’s denial of his

challenges for cause deprived him of a lawfully constituted jury resulting in

violations of his rights under the state and federal constitutions and under article

35.16 of the Texas Code of Criminal Procedure. (Appellant’s Brief, pp. 88-89).

Appellant’s contentions are meritless. He has failed to show the trial court’s

rulings on any of the challenges resulted in the seating of a juror who was biased

or prejudiced. If an appellant does not present record evidence demonstrating

that the trial court’s error deprived him of a jury comprised of legally qualified

jurors, he has suffered no harm and the reviewing court should presume the

jurors are qualified. See Gray v. State, 233 S.W.3d 295, 301 (Tex. Crim. App. 2007).

Therefore, this Court should overrule Issues 21 and 22.

Issues 23-26: Admission Of Autopsy Photographs

In Issues 23 through 26, appellant contends that the trial court erred in

overruling his Rule 403 objections to State’s Exhibits 4-9, 11-23 and 77-78,

autopsy photographs of the victims. (Appellant’s Brief, pp. 90-97). He does not

address the photographs individually, but generally contends they were excessive.

He also complains they were unfairly prejudicial because there were no

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controverted issues as to cause of death. His contentions are without merit and

should be overruled.

Applicable Law

The admissibility of a photograph is within the sound discretion of the trial

judge. Paredes v. State, 129 S.W.3d 530, 539 (Tex. Crim. App. 2004); Williams v.

State, 958 S.W.2d 186, 195 (Tex. Crim. App. 1997). Generally, a photograph is

admissible if verbal testimony about the subject of the photographs is also

admissible. Id.; Gallo v. State, 239 S.W.3d 757, 762 (Tex. Crim. App. 2007) (holding

that, if verbal testimony is relevant, photographs of the same are also relevant).

More specifically, a visual image of the injuries appellant inflicted on the victim is

evidence that is relevant to the jury’s determination and is admissible. Gallo, 239

S.W.3d at 762; Tex. R. Evid. 401. The fact that the jury also heard testimony

regarding the injuries depicted does not reduce the relevance of the visual

depiction. Id.

Rule 403, on the other hand, allows for the exclusion of otherwise relevant

evidence when its probative value is substantially outweighed by the danger of

unfair prejudice, confusion of the issues, or misleading the jury, or by

considerations of undue delay, or needless presentation of cumulative evidence.

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See Tex. R. Evid. 403. Rule 403 favors the admission of relevant evidence and

presumes that relevant evidence will be more probative than prejudicial.

Williams, 958 S.W.2d at 196. A court may consider several factors in determining

whether the probative value of photographs is substantially outweighed by the

danger of unfair prejudice, including but not limited to: the number of exhibits

offered, their gruesomeness, their detail, their size, whether they are black and

white or color, whether they are close-up, and whether the body depicted is

naked or clothed. Id. A reviewing court must also consider the availability of other

means of proof and the circumstances unique to each individual case. Id.

Issues 23 and 24: The Trial Court Did Not Abuse its Discretion by

Overruling Appellant’s Objections to State’s Exhibits 4-9 and 11-23

In a pretrial hearing held outside the presence of the jury, appellant

requested that the trial court make a threshold determination of the admissibility

of autopsy photographs of the victims. (RR42: 28-30). He argued that because the

defense was conceding guilt and there was no issue with regard to the cause of

death of the victims, no autopsy photographs should be admitted because they

have no probative value and are only being offered to inflame the jury. (RR42: 28-

34). The State notified the trial court that it was in possession of over 170

photographs, some of them quite graphic, but that they had met with the medical

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examiner and selected only the ones necessary to aid her in explaining the injuries

sustained by the children. (RR42: 30, 34, 39). The trial court examined the thirteen

photographs of Elijah Muhammad and six photographs of Naim Muhammad that

the State planned to offer. (RR42: 34-38; State’s Exhibits 4-9, 11-23). The trial

court found the probative value the photographs outweighed the prejudicial

effect and overruled appellant’s objections. (RR42: 36-38).

All of the photographs admitted were in color and were 8 ½ by 11 inches.

State’s Exhibits 11-23 are autopsy photographs of Elijah. Exhibits 11 and 12 depict

how Elijah appeared when he arrived at the medical examiner’s office and the

clothes he was wearing. Additionally, Dr. Dyer used exhibit 11 to explain the

process of postmortem purging, and exhibit 12 to explain their standard practice

for collecting fingernail clippings. (RR42: 122-23; State’s Exhibits 11-12). She

explained that after the “as-is” photographs are taken of the victim, the body is

cleaned up for the autopsy and re-photographed, which is what is depicted in

exhibit 13. (RR42: 124; State’s Exhibit 13).

Dr. Dyer used exhibits 14-21 to describe the various injuries she observed

during the external examination of Elijah. Although Elijah is not clothed, all of the

photographs are close-ups of specific parts of his body. The photographs are not

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repetitious and each depicts a different area of injury. Specifically, exhibits 14 and

15 depict the facial injuries he sustained; exhibit 16 depicts a linear abrasion on

his back; exhibit 17 depicts abrasions on the outside of the leg; exhibit 18 depicts

abrasions and a blister on the sole of his left foot; exhibit 19 depicts abrasions on

the top of the right foot; exhibit 20 depicts abrasions on the back side of his right

leg; and exhibit 21 depicts an abrasion on his wrist. (RR42: 124-26; State’s Exhibits

14-21). Dr. Dyer used exhibits 22 and 23 to describe the injuries she observed

during the internal examination of Elijah. Exhibit 22 depicts the bruising on the

inside of his scalp and exhibit 23 depicts the dirt and debris that were found in his

airway. (RR42: 126-28; State’s Exhibits 22-23).

State’s Exhibits 4-9, autopsy photographs of Naim, were used in the same

manner as the photographs of Elijah contained in State’s Exhibits 11-23. State’s

Exhibit 4 is the “as-is” photograph of Naim – it depicts the clothes he was wearing

and how he presented when he arrived at the medical examiner’s office. (RR42:

135; State’s Exhibit 4). It also depicts white foam coming from his nose, the result

of postmortem purging. (RR42: 134-36; State’s Exhibit 4). Exhibit 5 shows how

Naim appeared after the debris was removed and he was cleaned by the medical

examiner. (RR42: 136; State’s Exhibit 5). Exhibits 6-8 are close-ups of specific parts

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of Naim’s body, each depicting a different area of injury observed during the

external examination. Specifically, exhibits 6 and 7 depict abrasions on the side of

the face and forehead, and exhibit 8 depicts abrasions on the back of hand.

(RR42: 136-37; State’s Exhibits 6-8). Exhibit 9, taken during the internal

examination, depicts the bruising he sustained on the inside of his scalp. (RR42:

137-38; State’s Exhibit 9).

The medical examiner was entitled to testify to the manner of death, the

cause of death, and the number and types of injuries sustained by each victim,

issues to which these photographs were relevant. The fact that appellant did not

contest the manner of death does not render the photos irrelevant. See Long v.

State, 823 S.W.2d 259, 274, 275 (Tex. Crim. App. 1991) (holding that testimony

and photographs as to manner, cause, and time of death are relevant to capital

murder prosecution even though defendant pled guilty).

Mindful of the potential for unfair prejudice, the State took great care to

reduce the number of autopsy photographs and utilized only the ones necessary

for Dr. Dyer’s testimony. Furthermore, in the realm of capital murder victim

photos, the pictures are nothing close to gruesome. See, e.g., Gallo, 239 S.W.3d at

763-64 (upholding admission of twenty-three photograph

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