# Muhammad, Naim > Court of Appeals of Texas · February 3, 2015 URL: https://www.frixlaw.com/law-library/cases/4039986 ## Case - **Court:** Court of Appeals of Texas - **Decided:** February 3, 2015 - **Precedential status:** Published - **Opinion:** Opinion - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4039986 ## How later opinions describe it (automated extraction) - noting that a reviewing court generally considers instructions given to the jury sufficient to remedy most improprieties that occur during trial and presumes the jury will follow the trial court’s instructions - noting jury presumed to follow the judge’s instructions ## Opinion text 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 58 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. 59 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 60 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 61 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. 62 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 63 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 64 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. 65 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). 66 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 67 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 68 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. 69 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, 70 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. 71 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 72 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). 73 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 74 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. 75 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. 76 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 77 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. [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4039986. Public record. Not legal advice.