Davis, Franklin

ap-77,031

COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS

Transmitted 7/29/2015 9:52:31 AM

August 4, 2015 Accepted 8/3/2015 3:17:52 PM

The State Requests Oral Argument if Appellant ArguesABEL ACOSTA

CLERK

No. AP-77,031

IN THE

COURT OF CRIMINAL APPEALS

OF TEXAS

FRANKLIN DAVIS,

Appellant

v.

THE STATE OF TEXAS,

Appellee

On Appeal from the Criminal District Court No. 7 of Dallas County, Texas

In Cause No. F12-12630

STATE’S BRIEF

Counsel of Record:

Susan Hawk Rebecca D. Ott

Criminal District Attorney Assistant District Attorney

Dallas County, Texas Appellate Division

133 N. Riverfront Boulevard, LB-19

Dallas, Texas 75207-4399

(214) 653-3829 (Phone)

(214) 653-3643 (Fax)

State Bar No. 24074842

rebecca.ott@dallascounty.org

Attorneys for the State of Texas

TABLE OF CONTENTS

TABLE OF AUTHORITIES .....................................................................................v

STATEMENT REGARDING ORAL ARGUMENT ......................................... xviii

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

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

SUMMARY OF ARGUMENT ...............................................................................51

ARGUMENT ...........................................................................................................54

STATE'S RESPONSE TO ISSUES 1-3: .................................................................54

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

CHALLENGES.

STATE'S RESPONSE TO ISSUE 4: .......................................................................70

THE TRIAL COURT DID NOT ERR IN DISMISSING JOHN BIGLEY FROM THE

JURY.

STATE'S RESPONSE TO ISSUE 5: .......................................................................80

THE TRIAL COURT DID NOT ERR IN DENYING THE APPELLANT'S MOTION TO

QUASH THE INDICTMENT.

STATE'S RESPONSE TO ISSUE 6: .......................................................................83

THE TRIAL COURT DID NOT ERR IN DENYING THE APPELLANT'S MOTION FOR

CONTINUANCE.

STATE'S RESPONSE TO ISSUES 7-10: ................................................................92

THE TRIAL COURT'S RULINGS ON THE APPELLANT'S FOUR MOTIONS TO

SUPPRESS WERE PROPER.

ii

STATE'S RESPONSE TO ISSUE 11: ...................................................................109

THE EVIDENCE IS LEGALLY SUFFICIENT TO SUPPORT THE APPELLANT‘S

CONVICTION FOR CAPITAL MURDER.

STATE'S RESPONSE TO ISSUE 12: ...................................................................117

THE TRIAL COURT DID NOT ERR IN OVERRULING THE APPELLANT‘S

OBJECTION TO STATE‘S EXHIBIT NUMBERS 40 AND 41.

STATE'S RESPONSE TO ISSUES 13-18: ............................................................122

THE TRIAL COURT DID NOT ERR IN SUSTAINING THE STATE‘S OBJECTIONS

TO DEFENSE EXHIBITS A, B, C, E, F AND G.

STATE'S RESPONSE TO ISSUES 19-21: ............................................................134

THE TRIAL COURT DID NOT ERR IN SUSTAINING THE STATE‘S OBJECTIONS

TO THE PROFFERED TESTIMONY OF DEFENSE WITNESSES ARTY HAYES,

ASHLYE SAMS AND LAMAR LEGGITON.

STATE'S RESPONSE TO ISSUE 22: ...................................................................143

THE TRIAL COURT PROPERLY DENIED THE APPELLANT‘S REQUEST FOR A

JURY INSTRUCTION ON ANTI-SPECULATION DURING THE GUILT-INNOCENCE

STAGE OF HIS TRIAL.

STATE'S RESPONSE TO ISSUE 23: ...................................................................148

THE TRIAL COURT DID NOT ERR IN OVERRULING APPELLANT‘S OBJECTION

TO THE PROSECUTION‘S JURY ARGUMENT DURING THE GUILT-INNOCENCE

PHASE OF TRIAL.

STATE'S RESPONSE TO ISSUE 24: ...................................................................158

THE EVIDENCE IS LEGALLY SUFFICIENT TO SUPPORT THE JURY‘S ANSWER

TO SPECIAL ISSUE 1.

iii

STATE'S RESPONSE TO ISSUES 25-35: ............................................................169

THE TRIAL COURT PROPERLY DENIED THE APPELLANT‘S REQUESTED JURY

INSTRUCTIONS AND OVERRULED HIS OBJECTIONS TO THE CHARGE.

STATE'S RESPONSE TO ISSUES 36-37: ............................................................176

THE TRIAL COURT PROPERLY DENIED THE APPELLANT‘S REQUESTED JURY

INSTRUCTION DEFINING EVIDENCE THAT REDUCES ―MORAL

BLAMEWORTHINESS.‖

STATE'S RESPONSE TO ISSUES 38-48: ............................................................177

THE TRIAL COURT PROPERLY DENIED THE APPELLANT‘S CHALLENGES TO

THE DEATH PENALTY STATUTE.

PRAYER ................................................................................................................180

CERTIFICATE OF COMPLIANCE .....................................................................181

CERTIFICATE OF SERVICE ..............................................................................181

iv

TABLE OF AUTHORITIES

Cases

Acosta v. State,

411 S.W.3d 76 (Tex. App.—Houston [1st Dist.] 2013, no pet.) ........................174

Alba v. State,

905 S.W.2d 581 (Tex. Crim. App. 1995) .............................................................88

Almanza v. State,

686 S.W.2d 157 (Tex. Crim. App. 1985) (op. on reh‘g) ........................... 161, 162

Anderson v. State,

301 S.W.3d 276 (Tex. Crim. App. 2010) .............................................................93

Banks v. State,

643 S.W.2d 129 (Tex. Crim. App. 1982) ...........................................................173

Barnes v. State,

876 S.W.2d 316 (Tex. Crim. App. 1994) .............................................................88

Batson v. Kentucky,

476 U.S. 79 (1988) ......................................................................................... 54, 55

Beathard v. State,

767 S.W.2d 423 (Tex. Crim. App. 1989) .............................................................88

Bermea v. State,

188 S.W.3d 337 (Tex. App.—Tyler 2006, no pet.) ....................................... 79, 81

Blue v. State,

125 S.W.3d 491 (Tex. Crim. App. 2003) ...........................................................195

Bonds v. State,

403 S.W.3d 867 (Tex. Crim. App. 2013) .................................................. 105, 107

Bone v. State,

77 S.W.3d 828 (Tex. Crim. App. 2002) ...............................................................70

Bosquez v. State,

446 S.W.3d 581 (Tex. App.—Fort Worth 2014, pet. ref‘d) ...................... 158, 159

v

Brooks v. State,

990 S.W.2d 278 (Tex. Crim. App. 1999) .............................................................78

Broussard v. State,

910 S.W.2d 952 (Tex. Crim. App. 1995) ................................................ 79, 80, 81

Brown v. State,

270 S.W.3d 564 (Tex. Crim. App. 2008) .......................................... 168, 175, 177

Bynum v. State,

767 S.W.2d 769 (Tex. Crim. App. 1989) .............................................................87

Campbell v. State,

610 S.W.2d 754 (Tex. Crim. App. [Panel Op.] 1980) ........................................167

Cantu v. State,

939 S.W.2d 627 (Tex. Crim. App. 1997) .................................................. 194, 197

Carrillo v. State,

597 S.W.2d 769 (Tex. Crim. App. 1980) .............................................................77

Chamberlain v. State,

998 S.W.2d 230 (Tex. Crim. App. 1999) ...........................................................132

Chambers v. State,

866 S.W.2d 9 (Tex. Crim. App. 1993) .................................................................58

Chance v. State,

563 S.W.2d 812 (Tex. Crim. App. 1978) .............................................................87

Clayton v. State,

235 S.W.3d 772 (Tex. Crim. App. 2007) ...........................................................122

Coble v. State,

330 S.W.3d 253 (Tex. Crim. App. 2010) ...........................................................199

Dancy v. State,

728 S.W.2d 772 (Tex. Crim. App. 1987) ...........................................................114

Darnes v. State,

118 S.W.3d 916 (Tex. App.—Amarillo 2003, pet. ref‘d) ..................................142

vi

Davis v. State,

202 S.W.3d 149 (Tex. Crim. App. 2006) ..........................................................106

Davis v. State,

329 S.W.3d 798 (Tex. Crim. App. 2010) ...........................................................168

Dewberry v. State,

4 S.W.3d 735 (Tex. Crim. App. 1999) .......................................................... 93, 97

Druery v. State,

225 S.W.3d 491 (Tex. Crim. App. 2007) .......................................... 161, 162, 195

Emery v. State,

881 S.W.2d 702 (Tex. Crim. App. 1994) ...........................................................131

Escamilla v. State,

143 S.W.3d 814 (Tex. Crim. App. 2004) .................................................. 195, 202

Espada v. State,

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

2008) (not designated for publication)....................................................... 195, 196

Estrada v. State,

313 S.W.3d 274 (Tex. Crim. App. 2010), cert. denied, 131 S. Ct. 905 (2011) 109,

179, 192

Ford v. State,

179 S.W.3d 203 (Tex. App.—Houston [14th Dist.] 2005, pet. ref‘d) ................107

Franks v. Delaware,

438 U.S. 154 (1978) ............................................................................................114

Freeman v. State,

340 S.W.3d 717 (Tex. Crim. App. 2011) ...........................................................167

Freeman v. State,

838 S.W.2d 772 (Tex. App.—Corpus Christi 1992, pet. ref‘d) .................... 78, 83

Gallo v. State,

239 S.W.3d 757 (Tex. Crim. App. 2007) .............................................. 93, 94, 131

Garcia v. State,

126 S.W.3d 921 (Tex. Crim. App. 2004) .................................................. 167, 173

vii

Garcia v. State,

201 S.W.3d 695 (Tex. Crim. App. 2006) .................................................. 144, 145

Garcia v. State,

981 S.W.2d 683 (Tex. Crim. App. 1998) .............................................................87

Gardner v. State,

306 S.W.3d 274 (Tex. Crim. App. 2009) ...........................................................192

Garza v. State,

126 S.W.3d 79 (Tex. Crim. App. 2004) .............................................................109

Glover v. State,

102 S.W.3d 754 (Tex. App.—Texarkana 2002, no pet.)....................................146

Gonzales v. State,

304 S.W.3d 838 (Tex. Crim. App. 2010) ...................................................... 94, 95

Guzman v. State,

955 S.W.2d 85 (Tex. Crim. App. 1997) .................................................... 107, 143

Hammett v. State,

578 S.W.2d 699 (Tex. Crim. App. 1979) .............................................................88

Hammons v. State,

239 S.W.3d 798 (Tex. Crim. App. 2007) .................................. 151, 152, 157, 158

Haughton v. State,

805 S.W.2d 405 (Tex. Crim. App. 1990) .................................................. 151, 152

Hernandez v. New York,

500 U.S. 352 (1991) ..............................................................................................67

Hicks v. Wainwright,

633 F.2d 1146 (5th Cir. 1981) ....................................................................... 96, 99

Hinojosa v. State,

433 S.W.3d 742 (Tex. App.—San Antonio 2014, pet. ref‘d).............................174

Hogue v. State,

711 S.W.2d 9 (Tex. Crim. App. 1986) .................................................................88

viii

Hooper v. State,

214 S.W.3d 9 (Tex. Crim. App. 2007) ...................................................... 122, 165

Idaho v. Wright,

497 U.S. 805 (1990) ............................................................................................144

Illinois v. Gates,

462 U.S. 213 (1983) ........................................................................... 106, 108, 115

Jackson v. State,

33 S.W.3d 828 (Tex. Crim. App. 2000) .............................................................195

Jackson v. Virginia,

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

Janecka v. State,

937 S.W.2d 456 (Tex. Crim. App. 1996) ...................................................... 94, 98

Johnson v. State,

208 S.W.3d 478 (Tex. App.—Austin 2006, pet. ref‘d) ............................. 152, 159

Jones v. State,

833 S.W.2d 118 (Tex. Crim. App. 1992) ...........................................................110

Jones v. State,

982 S.W.2d 386 (Tex. Crim. App. 1998) .............................................................83

Keeton v. State,

724 S.W.2d 58 (Tex. Crim. App. 1987) .............................................................179

Kelly v. State,

413 S.W.3d 164 (Tex. App.—Beaumont 2012, no pet.) ....................................114

King v. State,

29 S.W.3d 556 (Tex. Crim. App. 2000) .............................................................121

Kirsch v. State,

357 S.W.3d 645 (Tex. Crim. App. 2012) ...........................................................161

Ladd v. State,

3 S.W.3d 547 (Tex. Crim. App. 1999) .............................................. 131, 135, 195

ix

Lancon v. State,

253 S.W.3d 699 (Tex. Crim. App. 2008) ...........................................................128

Landrum v. State,

788 S.W.2d 577 (Tex. Crim. App. 1990) .............................................................77

Lane v. State,

971 S.W.2d 748 (Tex. App.—Dallas 1998, pet. ref‘d).......................................108

Laster v. State,

275 S.W.3d 512 (Tex. Crim. App. 2009) ...........................................................121

Lawrence v. State,

240 S.W.3d 912 (Tex. Crim. App. 2007) .............................................................86

Linney v. State,

401 S.W.3d 764 (Tex. App.—Houston [14th Dist.] 2013, pet. ref‘d) ................158

Long v. State,

823 S.W.2d 259 (Tex. Crim. App. 1991) ...........................................................135

Luna v. State,

268 S.W.3d 594 (Tex. Crim. App. 2008) ...........................................................192

Marquez v. State,

921 S.W.2d 217 (Tex. Crim. App. 1996) ...........................................................143

Martinez v. Quarterman,

481 F.3d 249 (5th Cir. 2007) ..............................................................................100

Martinez v. State,

327 S.W.3d 727 (Tex. Crim. App. 2010) ...........................................................142

Martinez v. State,

91 S.W.3d 331 (Tex. Crim. App. 2002) .............................................................141

Martinez v. State,

924 S.W.2d 693 (Tex. Crim. App. 1996) ...........................................................192

Mathis v. State,

67 S.W.3d 918 (Tex. Crim. App. 2002) ...............................................................59

x

Mays v. State,

318 S.W.3d 368 (Tex. Crim. App. 2010) .......................................... 192, 194, 199

Miller-El v. Dretke,

545 U.S. 231 (2005) ................................................................................. 63, 69, 72

Moffett v. State,

949 S.W.2d 778 (Tex. App.—Beaumont 1997, pet. ref‘d) ..................................77

Montgomery v. State,

810 S.W.2d 372 (Tex. Crim. App. 1990) .................................................... 79, 132

Moraguez v. State,

701 S.W.2d 902 (Tex. Crim. App. 1986) .................................................. 109, 110

Moreno v. State,

415 S.W.3d 284 (Tex. Crim. App. 2013) ...........................................................106

Morrow v. State,

862 S.W.2d 612 (Tex. Crim. App. 1993) ...........................................................123

Mosley v. State,

983 S.W.2d 249 (Tex. Crim. App. 1998) ...........................................................196

Nieto v. State,

365 S.W.3d 673 (Tex. Crim. App. 2012) .............................................................62

Nwosoucha v. State,

325 S.W.3d 816 (Tex. App.—Houston [14th Dist.] 2010, pet. ref‘d) ..... 95, 96, 99

Ortiz v. State,

93 S.W.3d 79 (Tex. Crim. App. 2002) ...............................................................123

Owens v. State,

202 S.W.3d 276 (Tex. App.—Amarillo 2006, pet. ref‘d) ....................................77

Paredes v. State,

129 S.W.3d 530 (Tex. Crim. App. 2004) ...........................................................130

Pena v. State,

285 S.W.3d 459 (Tex. Crim. App. 2009) ...........................................................141

xi

Ponce v. State,

68 S.W.3d 718 (Tex. App.—Houston [14th Dist.] 2001, no pet.) ................ 83, 84

Purkett v. Elem,

514 U.S. 765 (1995) ..............................................................................................58

Raby v. State,

970 S.W.2d 1 (Tex. Crim. App. 1998) ...............................................................196

Ramos v. State,

934 S.W.2d 358 (Tex. Crim. App. 1996) .............................................................77

Reed v. Quarterman,

555 F.3d 364 (5th Cir. 2009) ......................................................................... 55, 68

Renteria v. State,

206 S.W.3d 689 (Tex. Crim. App. 2006) .................................................... 95, 197

Reyes v. State,

30 S.W.3d 409 (Tex. Crim. App. 2000) ........................................................ 76, 83

Reyna v. State,

168 S.W.3d 173 (Tex. Crim. App. 2005) .......................................... 139, 140, 141

Ripkowski v. State,

61 S.W.3d 378 (Tex. Crim. App. 2001) .............................................................134

Roberts v. State,

220 S.W.3d 521 (Tex. Crim. App. 2007) ...........................................................199

Rodriguez v. State,

232 S.W.3d 55 (Tex. Crim. App. 2007) ............................................................105

Rodriguez v. State,

232 S.W.3d 55 (Tex. Crim. App. 2007) .............................................................114

Rodriguez v. State,

No. AP-75,901, 2011 Tex. Crim. App. Unpub. LEXIS 320 (Tex. Crim. App.

Mar. 16, 2011) (not designated for publication) .................................................193

Romero v. State,

800 S.W.2d 539 (Tex. Crim. App. 1990) ...........................................................130

xii

Rosales v. State,

841 S.W.2d 368 (Tex. Crim. App. 1992) .............................................................95

Routier v. State,

112 S.W.3d 554 (Tex. Crim. App. 2003) ................................................ 76, 78, 83

Russeau v. State,

171 S.W.3d 871 (Tex. Crim. App. 2005) .................................................. 195, 197

Russeau v. State,

291 S.W.3d 426 (Tex. Crim. App. 2009) ..................................................... passim

Saldano v. State,

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

Santellan v. State,

939 S.W.2d 155 (Tex. Crim. App. 1997) .............................................................79

Satterwhite v. State,

858 S.W.2d 412 (Tex. Crim. App. 1993) ...........................................................167

Shuffield v. State,

189 S.W.3d 782 (Tex. Crim. App. 2006) .................................................. 134, 135

Smith v. State,

297 S.W.3d 260 (Tex. Crim. App. 2009) ...........................................................197

Smith v. State,

5 S.W.3d 673 (Tex. Crim. App. 1999) ...................................................... 144, 145

Sneed v. State,

209 S.W.3d 782 (Tex. App.—Texarkana 2006, pet. ref‘d) ..................................84

State v. Duarte,

389 S.W.3d 349 (Tex. Crim. App. 2012) .................................................. 112, 114

State v. McClain,

337 S.W.3d 268 (Tex. Crim. App. 2011) ...........................................................106

State v. Moff,

154 S.W.3d 599 (Tex. Crim. App. 2004) .............................................................86

xiii

Strickland v. Washington,

466 U.S. 668 (1984) ..................................................................................... 99, 100

Swain v. State,

181 S.W.3d 359 (Tex. Crim. App. 2005) ...........................................................110

Swearingen v. State,

143 S.W.3d 808 (Tex. Crim. App. 2004) .................................................. 106, 108

Thomas v. State,

408 S.W.3d 877 (Tex. Crim. App. 2013) .................................................. 110, 111

Thomas v. State,

No. 05-05-01379-CR, 2006 WL 2022404, 2006 Tex. App. LEXIS 6303 (Tex.

App.—Dallas July 20, 2006, no pet.) (not designated for publication)..... 164, 165

Thompson v. State,

9 S.W.3d 808 (Tex. Crim. App. 1999) .................................................................99

Threadgill v. State,

146 S.W.3d 654 (Tex. Crim. App. 2009) ...........................................................197

Thuesen v. State,

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

26, 2014) (not designated for publication) .........................................................197

Tome v. United States,

513 U.S. 150 (1995) ............................................................................................151

Ungar v. Sarafite,

376 U.S. 575 (1964) ....................................................................................... 95, 96

United States v. Figueroa,

618 F.2d 934 (2nd Cir. 1980) ..............................................................................132

Valdez v. State,

952 S.W.2d 622 (Tex. App.—Houston [14th Dist.] 1997, pet. ref‘d) ..................78

Villarreal v. State,

453 S.W.3d 429 (Tex. Crim. App. 2015) ...........................................................162

Vinson v. State,

252 S.W.3d 336 (Tex. Crim. App. 2008) ...........................................................143

xiv

Wardrip v. State,

56 S.W.3d 588 (Tex. Crim. App. 2001) .............................................................179

Watkins v. State,

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

Weatherred v. State,

15 S.W.3d 540 (Tex. Crim. App. 2000) .................................................... 130, 142

Wesbrook v. State,

29 S.W.3d 103 (Tex. Crim. App. 2000) .................................................... 168, 169

Whitehead v. State,

437 S.W.3d 547 (Tex. App.—Texarkana 2014, pet. ref‘d) ........................... 83, 84

Williams v. State,

631 S.W.2d 955 (Tex. App.—Austin 1982, no pet.) ............................................79

Williams v. State,

937 S.W.2d 479 (Tex. Crim. App. 1996) ...........................................................140

Williams v. State,

958 S.W.2d 186 (Tex. Crim. App. 1997) ...........................................................130

Wilson v. State,

7 S.W.3d 136 (Tex. Crim. App. 1999) ...............................................................168

Woodward v. Epps,

580 F.3d 318 (5th Cir. 2009) ................................................................................65

Young v. State,

283 S.W.3d 854 (Tex. Crim. App. 2009) .............................................................56

Young v. State,

826 S.W.2d 141 (Tex. Crim. App. 1991) ...................................................... 68, 69

Constitutional Provisions

Tex. Const. art. I, § 10..............................................................................................81

U.S. CONST. amend. IV ............................................................................................97

U.S. CONST. amend. VI ............................................................................................81

xv

Statutes

Tex. Code Crim. Proc. Ann. art. 18.01(b) (West 2015) ..........................................97

Tex. Code Crim. Proc. Ann. art. 29.03 (West 2006) ...............................................87

Tex. Code Crim. Proc. Ann. art. 29.08 (West 2006) ........................................ 87, 89

Tex. Code Crim. Proc. Ann. art. 35.261(a) (West 2006) .........................................55

Tex. Code Crim. Proc. Ann. art. 36.14 (West 2007) .............................................145

Tex. Code Crim. Proc. Ann. art. 36.15 (West 2007) .............................................145

Tex. Code Crim. Proc. Ann. art. 36.29 (b) (West 2006) .........................................74

Tex. Code Crim. Proc. Ann. art. 37.071, § 2(a) (West Supp. 2014) .....................175

Tex. Code Crim. Proc. Ann. art. 37.071, § 2(b)(1) (West Supp. 2014) ................158

Tex. Code Crim. Proc. Ann. art. 37.071, § 2(c) (West Supp. 2014) .....................158

Tex. Code Crim. Proc. Ann. art. 37.071, § 2(e)(1) (West Supp. 2014) .................176

Tex. Code Crim. Proc. Ann. art. 37.071, § 2(f)(4) (West Supp. 2014) .................176

Tex. Code Crim. Proc. Ann. art. 38.36(a) (West 2005) .........................................129

Tex. Penal Code Ann. § 1.07(a)(22) (West Supp. 2014) .........................................82

Tex. Penal Code Ann. § 19.03 (a)(2) (West Supp. 2014) ......................................111

Tex. Penal Code Ann. § 36.06(a) (West 2015) ......................................................111

Rules

Tex. R. App. P. 33.1...................................................................................... 126, 127

Tex. R. App. P. 33.1(a) ............................................................................................66

Tex. R. App. P. 33.1(a)(1) .....................................................................................127

Tex. R. App. P. 44.2(b) ................................................................... 79, 131, 155, 157

Tex. R. Evid. 103(a)(2) ..........................................................................................126

xvi

Tex. R. Evid. 201 .....................................................................................................62

Tex. R. Evid. 403 .......................................................................................... 118, 119

Tex. R. Evid. 611(b)...............................................................................................141

Tex. R. Evid. 613(c) ...............................................................................................134

Tex. R. Evid. 801(c) ...............................................................................................130

Tex. R. Evid. 801(d)...................................................................................... 129, 134

Tex. R. Evid. 801(e)(1)(B) .....................................................................................135

Tex. R. Evid. 802 .......................................................................................... 130, 134

Tex. R. Evid. 803 ...................................................................................................130

Tex. R. Evid. 803(3)...................................................................................... 130, 131

Other Authorities

2 Wayne R. Lafave, Search and Seizure: A Treatise on the Fourth Amendment §

3.3 at 98 (4th ed. 2004) .......................................................................................102

xvii

STATEMENT REGARDING ORAL ARGUMENT

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

grants the Appellant‘s request to argue.

xviii

TO THE HONORABLE COURT OF CRIMINAL APPEALS:

The State of Texas submits this brief in response to the brief filed by the

Appellant, Franklin Davis.

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). The trial court sentenced the

Appellant to death on November 16, 2013 for the capital murder of Shania Gray.

The Appellant filed his brief on February 27, 2015. He presents forty-eight

allegations of reversible error.

STATEMENT OF FACTS

Guilt/Innocence

State’s Case-in-Chief

In September 2010, fourteen year-old Shania Gray was a freshman in high

school and had just started her first job babysitting Jennifer Dibrell‘s three young

children. (RR60: 75–77). The Appellant was the father of Jennifer‘s youngest

child, Dezire. (RR60: 75–77, 79). After several months of babysitting, the

Appellant suggested they give Shania a Blackberry cell phone as payment. (RR60:

80; SX: 235).

One night in early April 2011, Shania‘s mother Sherry noticed a text

message on Shania‘s phone from ―Wish.‖ (RR60: 81). Sherry, who had met the

1

Appellant once on Christmas, knew that he went by that nickname. (RR60: 75, 78–

79, 81). Sherry took the phone and saw a message asking Shania why she was no

longer coming over to babysit. (RR60: 81, 87). The next message Sherry saw said:

―I want you. I just can‘t have you right now.‖ (RR60: 87). When Sherry asked

Shania about the messages, she became visibly upset and began to cry. (RR60: 88).

Sherry took Shania to Jennifer‘s house to discuss the messages, but Jennifer

did not seem surprised by the messages; in fact, she was nonchalant about the

entire situation. (RR60: 88–89). Sherry asked Jennifer to call the Appellant on the

phone. (RR60: 89). The Appellant would not speak with Sherry, but told Jennifer

to have her call him the following day after work. (RR60: 89).

Shania was still upset and crying on the drive home. (RR60: 91). Sherry

decided to take Shania to her grandmother‘s house, two blocks away, to spend the

night. (RR60: 91). Sherry wanted an opportunity to talk to her husband Marvin

about what course of action they should take. (RR60: 91–92).

The following morning, Sherry sent the Appellant a text message informing

him that they were going to call the police regarding the inappropriate text

messages between him and Shania. (RR60: 92). The Appellant responded and

claimed Shania was lying. (RR60: 92). Later that day, Shirley Brown, the mother

of one of Shania‘s friends, brought Shania home and asked to talk to Sherry.

(RR60: 98–101). Shania had told Shirley that the Appellant had sexually assaulted

2

her. (RR60: 98–99, 101). That evening, Sherry‘s husband called the Appellant.

(RR60: 93). The Appellant claimed that he did not know the text messages were

from Shania and had responded to them as a joke. (RR60: 93–94).

At that point, Sherry contacted Officer Johnny Ivy, the Student Resource

Officer (―SRO‖), at Shania‘s high school. (RR60: 95). Sherry told Officer Ivy that

the father of the children that Shania had been babysitting was sending her

inappropriate text messages. (RR60: 96). Officer Ivy contacted the Mesquite

Police Department on Sherry‘s behalf, and an officer arrived at their home a few

hours later. (RR60: 97). The officer spoke to Shania and took a general statement.

(RR60: 105–06). Shania then met with Detective Snyder at the Mesquite Police

Department. (RR60: 105–07). Snyder scheduled an appointment for Shania at the

Dallas Children‘s Advocacy Center (―DCAC‖). (RR60: 105–07). Sherry took

Shania for a forensic interview and then to Children‘s Medical Center for a

REACH examination. (RR60: 107; SX: 239). Sherry was later contacted by

Detective Snyder and informed that the Appellant had been indicted on four counts

of sexual assault of a child. (RR60: 108; SX: 9, 10, 11, 12).

In September 2012, Shania transferred to Hebron High School in Carrollton.

(RR60: 112–13). Shania did not have a driver‘s license, so Sherry drove her to and

from school because they were still living in Mesquite. (RR60: 113–14). Sherry

and Shania would communicate by text message during the day. (RR60: 114–15).

3

On her second day of school, September 6, 2012, Shania sent Sherry a text

message telling her that she was going to stay after school for physics tutoring.

(RR60: 116–17, 121).

Sherry arrived to pick Shania up at approximately 4:05pm. (RR60: 116,

121). When Sherry called Shania to let her know she was at the school, Shania

told her that the tutoring session was wrapping up and she would be out in a few

minutes. (RR60: 117). Sherry reminded Shania that they had choir practice that

evening. (RR60: 117). By 4:20pm, Sherry began to text Shania, but received no

response. (RR60: 118). After thirty minutes passed, Sherry barraged Shania with

calls, but her phone went straight to voice mail. (RR60: 118–19).

Sherry decided to go inside the school to look for Shania, but the door to the

physics classroom was locked and the lights were off. (RR60: 121). Sherry then

checked the gymnasium and spoke with a coach who was able to contact Shania‘s

physics teacher, Christine Cone. (RR60: 122, 150–53). Cone confirmed that Shania

came to her class for tutoring that afternoon, but left at approximately 4:00pm after

she received a phone call from her Sherry. (RR60: 150–54). Shania told Cone that

she ―had to hurry and go; my mom‘s waiting on me.‖ (RR60: 155). This was the

last time Shania was seen alive. (RR61: 228). The search for Shania continued

until nearly midnight to no avail. (RR60: 123–30).

4

The next morning, September 7, 2012, Sherry went back to the school and

spoke with SRO Forest Langston. (RR60: 131, 172–75). Langston contacted

Mesquite Horn High School, Shania‘s previous school, and learned that Shania

was the named victim in four sexual assault cases currently pending against the

Appellant. (RR60: 131, 136–37, 179–81). Langston pulled the phone records for

Shania‘s phone and discovered that she had been in contact with someone with a

903-603-8786 number around the time she disappeared. (RR60: 175–76).

Langston called the number; however, no one answered and the voice mail was not

set up. (RR60: 176). Langston learned that the phone was a prepaid phone

purchased at Walmart and had no subscriber information. (RR60: 177).

Langston also checked the school‘s surveillance video and found footage of

Shania exiting the south side of the building. (RR60: 185–89; SX: 16). She

appeared to have a cell phone in her hand. (RR60: 189; SX: 16). The video also

showed a gray Dodge Stratus parked on the south side of the building. (RR60:

186–89; SX: 16).

At this point, Detective Dena Williams with the Carrollton Police

Department became involved in the case. (RR60: 132–33). Williams obtained the

call records for the 903-603-8786 number based on exigent circumstances. (RR61:

58). The 903 number had only been in contact with four other numbers, so

Williams called each of the numbers and left a message. (RR61: 220–21).

5

Shakeema Morsley returned the detective‘s call and informed her that she believed

that the Appellant was the person contacting her from the 903 number. (RR61:

222). Morsley did not have the Appellant‘s phone number, but she did have a

number for his wife, Jawanna Arrington. (RR61: 223).

Williams called Jawanna and was able to speak to with her and the

Appellant. (RR61: 223). Williams told them that she was investigating a missing

child case and asked them about the 903 number. (RR61: 224). Both denied

knowing anything about the 903 number. (RR61: 224–25). Jawanna owned a 2005

gray Dodge Stratus that was registered to an address in Irving. (RR60: 218–20).

Carrollton Police Detectives Perritt and Cook drove to the address that

Jawanna‘s 2005 gray Dodge Stratus was registered to in Irving while Williams was

on the phone with the Appellant. (RR61: 218–21, 225–26). The detectives made

contact with the Appellant when he stepped outside of his apartment to take out

some trash. (RR61: 218–21, 225–26). The detectives were able to confirm that

neither Shania nor any evidence of a crime scene were present at the Appellant‘s

apartment. (RR61: 226). The Appellant agreed to come to the police department to

talk to Detective Williams. (RR61: 224, 226–27). The Appellant drove himself

and his wife in their own vehicle. (RR61: 224, 226–27).

By the time the Appellant arrived at the Carrollton Police Department it was

1:48am on Saturday September 8, 2012. (RR61: 227). In the first of four

6

interviews with the police, the Appellant denied any involvement in Shania‘s

disappearance. (RR63: 25–26; SX: 57, 57C). The Appellant insisted that he was

innocent of the sexual assault charges and told Williams that Shania had sent him

some text messages admitting that she lied about the assaults because her mother

made her. (SX: 57, 57C). The Appellant offered to show Williams the text

messages on his T-Mobile smart phone1. (RR62: 26–27). At the time of this

interview, Detective Williams did not have any data from the cell phone towers

and did not know that the text messages that the Appellant wanted to show her

were fake. (RR62: 25–26, 30–32). At the conclusion of the interview, the

Appellant was placed under arrest for outstanding traffic warrants from Balch

Springs and was also placed on a forty-eight hour investigative hold. (RR62: 39–

41; SX: 57, 57C).

Detective Jeremy Chevallier conducted the second interview with the

Appellant, which the Appellant initiated. (RR62: 39–41, 51; SX: 57, 57B). He told

Chevallier he wanted to talk to him because he forgot to tell Detective Williams

that he had recorded conversations between himself and Shania. (SX: 57, 57B).

The Appellant claimed that he recorded the conversations because he felt like his

court-appointed attorney was not going to do a good job. (SX: 57, 57B). The

Appellant told Chevallier that the recordings contained statements from Shania that

1

The record reflects the number for the Appellant‘s T-Mobile phone is 972-302-1976. (SX: 50,

51, 52).

7

contradicted what she told the police. (SX: 57, 57B). The Appellant continued to

deny any involvement in Shania‘s disappearance. (SX: 57, 57B).

Approximately an hour and a half after his second interview, Chevallier was

notified that the Appellant wanted to speak with him again. (RR62: 71). During

this third interview, the Appellant admitted that the phone with the 903 number

was his and he admitted to killing Shania. (SX: 57, 19A). The Appellant confessed

to taking Shania to a park off of Interstate 635, shooting her twice, and then putting

his foot on her neck until she stopped breathing. (SX: 57, 19A). He then rolled her

body into the Trinity River and left the park. (SX: 57; 19A). During the interview,

Shania‘s body was found floating face-down in the Trinity River in a secluded

section of Sam Houston Trail Park near the intersection of Interstate 635 and the

George Bush Tollway. (RR61: 108–17; RR62: 73; SX: 57, 19A). At the end of the

interview, the Appellant agreed to take Chevallier to the crime scene. (RR62: 75,

79).

Shania‘s body was in the process of being recovered when they arrived.

(RR62: 78). Crime scene investigators found a backpack containing Shania‘s

identification card and other papers identifying her near her body. (RR63: 130; SX:

113, 114, 115). The Appellant took police to two ponds where he had disposed of

evidence. From these ponds, police recovered a Diamondback .380 handgun,

which the Appellant identified as the gun he used to shoot Shania, Shania‘s iPhone,

8

and the Appellant‘s muddy shoes. (RR62: 79, 90–92; RR63: 131, 133, 180–81;

SX: 58, 221).

On September 9, 2012, Detective Williams and Detective Grigg were

notified that the Appellant wanted to talk to them again. (RR62: 117). They went

to the jail and met with him for his fourth interview. (RR62: 117–18; RR63: 20;

SX: 72, 72A). During the interview, the Appellant talked about the sexual assault

charges and again told Williams about the text messages Shania sent him. (RR63:

26). The Appellant claimed that when Shania got in the car just prior to her

murder, she told him: ―I‘m going to tell the truth. You‘re right, this never

happened. It was my mama that made me do it.‖ (RR63: 26).

The autopsy revealed that Shania had been shot twice. (RR63: 261–63).

One of the gunshot wounds entered the back of her right shoulder, traveled through

the muscles of her shoulder and neck, and exited through the right side of her neck.

(RR63: 264). The second gunshot wound entered the lower left side of Shania‘s

back and ended up in the iliopsoas muscle of her right hip. (RR63: 264). The

bullet was recovered from her body. (RR63: 264). Neither bullet struck any major

blood vessels or organs. (RR63: 264). Shania had another injury, to her throat, that

was consistent with asphyxia. (RR63: 265). Though decomposition made it

difficult to see the injury to Shania‘s neck, it was clear that the thyroid cartilage

that makes up the voice box was fractured, an injury consistent with pressure from

9

a foot or knee being applied to the area. (RR63: 265–66). The medical examiner

testified that the cause of death was homicidal violence including gunshot wound

and asphyxia, with the asphyxia including both the neck compressions and possible

drowning. (RR63: 278–79).

The Diamondback .380 handgun, two cartridge cases, and two bullets were

sent to the Tarrant County Medical Examiner‘s Crime Lab for examination.

(RR62: 95–96). The two cartridge cases and one of the bullets were recovered

from the crime scene, and the second bullet was recovered during Shania‘s

autopsy. The crime lab determined that the cartridges and the bullets were fired by

the handgun recovered from the pond. (RR62: 104)

Data from T-Mobile and AT&T was also used to track the movement of the

Appellant and Shania during her disappearance. The data showed that on the

evening of September 5, 2012, at approximately 10:11pm, the Appellant‘s phone2

hit off of a cell tower near Shania‘s house. (RR61: 197–98; SX: 56). At that time,

Shania‘s phone was not hitting off of the tower near her home, indicating that she

was not there. (RR61: 195–96). Over the next several hours, multiple text

messages and calls were exchanged between the numbers. (RR61: 195–99; SX:

56). By the end of the conversations, at approximately midnight, the Appellant‘s

2

This examination used the 903-603-8786 throwaway phone. (RR61: 188–91).

10

cell phone was hitting off of a tower near his apartment, and Shania‘s cell phone

was hitting off of a cell phone tower near her home. (RR61: 197–98; SX: 56).

At approximately 12:36pm on September 6, 2012, the Appellant‘s cell

phone hit off of a cell tower near Shakeema Morsley‘s apartment. (RR61: 201).

From 3:30pm until approximately 4:30pm, the Appellant and Shania‘s cell phones

were both hitting off of a cell tower near Hebron High School. (RR61: 201–04).

At approximately 5:15pm, Shania‘s phone hit off of a cell tower near the

Appellant‘s apartment, and shortly thereafter, was no longer in contact with the

network. (RR61: 204–05). Additionally, cell phone records showed that the

Appellant received two calls to his 972-302-1976 smart phone at approximately

4:01pm on September 6, 2012. (RR61: 178; SX: 50, 51, 52). The calls hit off of a

cell tower located near Hebron High School. (RR61: 178–79; SX: 50, 51, 52).

Considerable evidence was also recovered from the Appellant‘s T-Mobile

smart phone (972-302-1976). Jeff Shaffer, a Special Agent with the Dallas Field

Office of the Secret Service, conducted a forensic examination of the phone.

(RR60: 229, 231; SX: 18). Shaffer‘s forensic examination revealed:

 A deleted contact named ―throwaway‖ with a cell phone number 903-603-

8786. (RR60: 247–48; SX: 20).

 A picture of Shania downloaded onto the phone on July 13, 2012. (RR60:

249–50; SX: 20).

11

 Multiple Google searches:

o On August 28, 2012 at 5:26pm, the Appellant searched for gun shows

in Dallas. (RR60: 252–53; SX: 20).

o On August 29, 2012, the Appellant conducted searches for a

Diamondback .380 handgun and its price. (RR60: 254–55; SX: 20).

o On September 6, 2012 at 1:53pm, the Appellant searched for Hebron

High School. (RR60: 257; SX: 20).

 On August 30, 2012, the Appellant placed multiple calls to a person named

Chris.3 (RR60: 254).

 A map search for the intersection of I-635 and Highway 161, the location of

Sam Houston Trail Park, where Shania‘s body was found. (RR60: 264; SX:

21).

 Six text messages were also recovered from the Appellant‘s phone. (RR60:

266). The messages all appeared to be from the number 214-709-6861,

Shania‘s cell phone number. (RR60: 266; SX: 20).

o The first message, sent on August 27, 2012 at 8:25pm4, stated: ―Ar3 u

still mad @ m3?‖ (RR60: 266–68; SX: 20).

o The second message, sent at 8:35pm, stated: ―Sorry I li3d on u but my

momma mad3 m3 do it. If we go to court ima t3ll th3m u never

touched me. My my momma go b3 mad @ m3 but fuck that bitch I

can‘t stand her no ways. Please 4give me.‖ (RR60: 267–68; SX: 20).

o The third message, sent at 9:40pm, said: ―Is this mr. Wish#.‖ (RR60:

267–68; SX: 20).

o The fourth message, sent on August 28, 2012 at 7:50pm, said only:

―Mr. Wish?‖ (RR60: 267–68; SX: 20).

3

The trial testimony showed that the Appellant bought a gun from a man named Christopher

Allen on August 30, 2012. (RR63: 131).

4

All times were in Coordinated Universal Time, or ―UTC‖. (RR60: 267–68; SX: 20).

12

o The fifth message, sent at 7:53pm, said: ―I beli3v3 if I t3ll the truth

sh3 will punish m3 for a long tim3 and I want b3 able to play

basketball.‖ (RR60: 267–68; SX: 20).

o The final message, sent at 8:04pm, said: ―Pl3as3 r3spond back if this

is still your numb3r.‖ (RR60: 267–68; SX: 20).

The timeline recovered from the phone showed that on August 27, 2012 at

7:55pm UTC, an application called ―Fake Call & SMS & Call Log‖ was installed

on the phone. (RR60: 268; SX: 42, 43). All of the messages and calls from number

214-709-6861 came after the installation of the fake SMS and call log application.

(RR60: 270–71). The cell phone records for the two numbers did not show any

calls or text messages that corresponded with those occurring after the installation

of the fake SMS and call log application. (RR60: 277–78).

Because the six text messages appearing to come from Shania were

suspicious, additional forensic examination was conducted on the Appellant‘s

phone by Andrew Hoog, an expert in smart phone data recovery. (RR61: 130–32).

Hoog was able to determine that the six text messages that appeared to be sent

from Shania‘s cell phone were fake and had been created by the fake SMS and call

log application. (RR61: 150). Hoog‘s examination of the Appellant‘s phone also

revealed:

 A calendar entry for a July 24, 2012 court date. (RR61: 151).

13

 Google searches for:

o ―Can you record a person without them knowing in Texas?‖ and ―Can

you record a person by phone without them knowing in Texas?‖ on

July 18, 2012. (RR61: 152–53).

o ―Best way to get off of a sexual assault charge.‖ and ―With no proof

that you did the murder, can you still be held in jail?‖ at 12:55pm the

same day. (RR61: 154).

o ―Can you voice-record a minor over the phone in Texas?‖ and ―Can

tape-record conversation with a person story changing and get you off

a charge?‖ on July 19, 2012. (RR61: 154–55).

o ―Can tape-recorded conversation be used in court?‖ and ―Can tape-

recorded conversation against a minor?‖ on July 23, 2012. (RR61:

155).

 Logins to Facebook accounts for Jazmine Brown and Domee Elkins Brown.

(RR61: 157–61). While logged in as Jazmine, the Appellant sent a friend

request to Shania. (RR61: 160–61; SX: 48).

 An Intellius search for Shania Gray in Texas. (RR61: 162).

An hour-long recorded conversation was also recovered from the phone.

(RR60: 236). In the recording, the Appellant, using the false identity ―D,‖

questioned Shania at length about the sexual assaults. (RR61: 92; SX: 19, 19B).

He also told Shania to tell the prosecutors that she lied about the sexual assault

charges and that she would not get in trouble because she was a minor. (SX; 19,

19B). The Appellant also told her: ―[I]f he turn around and go to the pen and get

out, he might have a grudge towards you, and you know, say, come after you . . .

when he get out of jail.‖ (SX: 19, 19B).

14

Defense Case-in-Chief

Detective Brandon Snyder, with the Mesquite Police Department, was the

lead detective investigating the sexual assault charges against the Appellant.

(RR64: 27–28). Snyder testified that Shania‘s mother discovered the text

messages between the Appellant and Shania on April 7, 2011. (RR64: 31). The

family did not contact the police department and make a report until April 14,

2011. (RR64: 31). Snyder was assigned to the case on April 15, 2011. (RR64: 29).

Snyder was informed that the Appellant had contacted the police department on

April 11, 2015, in order to determine if a report had been made about him. (RR64:

30).

Once Snyder was assigned to the case, he scheduled a forensic interview for

Shania at the DCAC on April 21, 2011. (RR64: 31–32). Snyder was present when

Caitlin Clevenger conducted the interview. (RR64: 88). In the interview, when

Clevenger asked Shania if ―anything like this had ever happened before,‖ Shania

told Clevenger ―no.‖ (RR64: 107–08; SX: 239). After the forensic interview,

Snyder interviewed Sherry, who gave him consent to process Shania‘s cell phone

so that he could access the text messages. (RR64: 32).

The cell phone was processed on April 25, 2011. (RR64: 33). One of the

contacts in Shania‘s Blackberry was for ―Wish,‖ with the number 972-302-1976.

(RR64: 74–75). Shania also had his birthday listed on her calendar. (RR64: 75).

15

The April 7, 2011 string of text messages between the Appellant and Shania

was recovered. (RR64: 76; SX: 235). The first message from the Appellant said:

―Wow ok then goodbye,‖ and was sent at 21:50:30. (RR64: 76; SX; 235). Shania

responded: ―Imm not saynn goodbye just yet…‖ at 21:50:56. (RR64: 76; SX: 235).

The Appellant responded: ―Thats foul so im pose to sit around an wait! Man

whateva,‖ at 21:51:47. (RR64: 76; SX: 235). Shania replied: ―Nope now yhu gettn

mad for wahh!!!!!! Yhu got 2 for the price if one wahh yhu complainin

for…….tryna have yhur cake nd eat it too,‖ at 21:53:19. (RR64: 76; SX: 235). The

Appellant responded: ―Just want u but cant fully have u yet,‖ at 21:54:17. (RR64:

77; SX: 235). Snyder testified that the text exchange between Shania and the

Appellant looked like a conversation between individuals in an intimate

relationship with one another. (RR64: 113–14).

The Appellant denied the allegations when Snyder interviewed him. (RR64:

44; DX: 2). He told Snyder that he thought Shania had a crush on him. (RR64: 50;

DX: 2). The Appellant also said that Shania would invite boys over while she was

babysitting. (RR64: 51; DX: 2). The Appellant told Snyder that he deleted the text

messages. (RR64: 63; DX: 2). He told Snyder that he was ―just playing around,‖

and was just explaining to Shania that she was too young and he could not see her.

(RR64: 77; DX: 2). Snyder did not take the Appellant‘s phone. (RR64: 63; DX:

2).

16

Following his interview with the Appellant, Snyder interviewed the outcry

witnesses. (RR64: 53). Snyder testified that one of the outcry witnesses told him

that Shania had changed her story. (RR64: 40). He did not interview the children

that Shania was babysitting. (RR64: 53). Snyder testified that Shania told him the

children were sent to clean their room or were outside when he assaulted her.

(RR64: 54). Snyder did not interview Jennifer, the children‘s mother, because she

was not present when the assaults occurred. (RR64: 55). Snyder did not visit the

location of the assaults. (RR64: 57).

The Appellant testified that he killed Shania because she ruined his life.

(RR64: 136). According to the Appellant, he lost everything because she lied

about the sexual assaults. (RR64: 136). The Appellant characterized the time prior

to the allegations as ―happy,‖ but claimed that ―Shania‘s lies‖ changed everything.

(RR64: 145). The Appellant had just married Jawanna and he had just been

promoted at Dr. Pepper, despite having only been there for three or four months.

(RR64: 142–44).

The Appellant was unable to return to Dr. Pepper after his arrest for the

sexual assault charges because he could no longer pass a background check and he

was forced to file for unemployment. (RR64: 145–49). The Appellant testified that

his wife looked at him differently because he was unable to provide for his family;

they were no longer able to go to the movies, go out to eat or go shopping. (RR64:

17

148, 151). When they argued, Jawanna would tell the Appellant that everything

was on her shoulders because she was the sole provider. (RR64: 152).

The Appellant testified that he met Shania for the first time on Christmas

2010. (RR64: 174–75). He would see her when he went to visit Jennifer‘s kids,

which was usually about four times a week. (RR64: 187). The Appellant testified

that Shania had a nice personality and made him laugh. (RR64: 182–83). The two

formed a bond and he started to care for her like a sister. (RR64: 183). In fact,

Shania would confide in him. (RR64: 190). The Appellant estimated that he spent

six or seven hours a week with her. (RR64: 190–91). However, he denied ever

being alone with her. (RR64: 193). The Appellant denied having sex or any sexual

contact with her and also denied swatting or grabbing her butt. (RR64: 183).

The Appellant testified that when he first received text messages from

Shania, he did not know that they were from her. (RR64: 207). He claimed that

Shania asked him whether or not he loved Jawanna, and he told her that he did,

which was why he was going to marry her. (RR64: 209–10). The Appellant

claimed that Shania then told him that she wished she had not gotten her feelings

involved because she wanted him. (RR64: 210). It was then that he sent her the

text messages telling her he could not have her ―like that‖ because she was too

young. (RR64: 212). The Appellant claimed that the text message he sent her

stating: ―Wow ok then gudbye,‖ and ―That‘s foul so im pose to sit around an wait!

18

Man whateva‖ were referring to how long it was taking Shania to respond to his

previous message5. (RR64: 213; SX: 235).

The Appellant testified that he knew Shania had a crush on him because she

had flirted with him on previous occasions. (RR64: 212). He denied flirting with

her but characterized himself as a ―charmer.‖ (RR64: 213). The Appellant did not

want to hurt her feelings so he was trying to ―let her down easily.‖ (RR64: 214).

Appellant explained that the text: ―Nope now yhu gettn mad for wahh!!!!!! Yhu

got 2 for the price if one wahh yhu complainin for…….tryna have yhur cake nd eat

it too,‖ was referring to him having sex with Jennifer after he was engaged to

Jawanna. (RR64: 215–16; SX: 235). The Appellant claimed that Jennifer told

Shania about the encounter. (RR64: 217).

The Appellant hired Tom Cox to represent him on the sexual assault charges

and agreed to pay him $15,000, $6,000 coming from the Appellant‘s car, which he

signed over to Cox. (RR64: 158–59). The Appellant agreed to a payment plan to

pay the remaining $9,000. (RR64: 158–59). He tried to pay the remainder of the

fee using his unemployment benefits, but he only received $275 to $300 every two

weeks. (RR64: 158–59). In the end, he was only able to pay Cox $4,600 in cash

because his unemployment benefits ran out. (RR64: 161–62). According to the

Appellant, Cox never hired an investigator to look into the charges and never set

5

Cell phone records show that less than one minute passed between the texts. (SX: 235).

19

his cases for trial. (RR64: 162, 165). However, Cox did tell him that Shania had

trichomoniasis, a sexually transmitted disease. (RR64: 166).

When the Appellant told Cox he could no longer pay him, Cox asked the

court to withdraw from the case. (RR64: 163–64). The court granted the

withdrawal and appointed Hugo Aguilar to represent him in August 2012. (RR64:

171). The Appellant testified that he never met with Aguilar aside from when he

was first appointed and Aguilar never returned his phone calls. (RR64: 172). The

Appellant became concerned that Aguilar was not going to help him, so he began

his own investigation. (RR65: 21).

First, he began to look for anything online that could be used to attack

Shania‘s character. (RR65: 22). The Appellant went to Shania‘s Facebook page,

but it was private. (RR65: 22). The Appellant created a fake Facebook profile

under the name Jazmine Brown and tried to communicate with Shania. (RR65: 23).

Shania, however, did not accept his friend request. (RR65: 24).

Next, the Appellant contacted his nephew Domee Elkins for access to his

Facebook page. (RR65: 24). The Appellant chose Elkins because he was young

and handsome. (RR65: 24). The Appellant sent Shania a friend request under

Elkins‘ profile and she accepted. (RR65: 24). He was then able to access her

profile and found her phone number. (RR65: 25). He decided to contact her by

20

text message. (RR65: 25). The Appellant bought a ―throwaway‖ phone from

Walmart to contact Shania. (RR65: 26).

That night, the Appellant contacted Shania claiming to be ―D,‖ a relative of

Elkins. (RR65: 27, 34). The Appellant had looked on Facebook for a profile he

could claim was ―D‘s‖ and decided to use Artis Powell‘s. (RR65: 27, 35). The

Appellant told Shania his middle name was Dwayne, so he went by ―D.‖ (RR65:

34). He told Shania if she wanted to see what he looked like, she should visit

Powell‘s Facebook page. (RR65: 27). The Appellant had already sent Powell a

message from the Jazmine Brown Facebook page warning Powell not to respond to

any messages from Shania because she was underage. (RR65: 26–27).

Two or three days after the Appellant first sent Shania a text message, she

called him. (RR65: 30). At first, the Appellant thought Shania had figured out

what was going on, but then she sent him a text message telling him she wanted to

talk. (RR65: 30). The Appellant went down to his car and called her back on the

throwaway phone. (RR65: 30). He placed the call on speakerphone and recorded it

using his smart phone. (RR65: 30). The Appellant testified that he recorded seven

of their conversations. (RR65: 30). The Appellant admitted that there was not

much on two or three of the recordings. (RR65: 30–31).

The Appellant felt good about his investigation because in one of the

recordings, Shania said there were only three sexual assaults instead of four, and

21

she also stated that one of the assaults occurred in the bedroom of his apartment.

(RR65: 32; SX: 19, 19B). The Appellant testified that this contradicted what she

said in the DCAC video because she said it happened in the bathroom at his

apartment. (RR65: 31–32; SX: 19, 19B, 239). The Appellant said that the other

recording also proved her bad character because she talked about having sex.

(RR65: 32). The Appellant made all of the recordings within a week of having

first contacted her. (RR65: 33).

The Appellant testified that he took the recordings to his attorney, who was

―kind of iffy‖ about them. (RR65: 35). He then drove to Mesquite and was going

to play the recordings for Sherry and Marvin, but began to worry that they would

claim he forced his way into their house. (RR65: 35–37). The Appellant was on

the phone with his son Trey‘s mother Linda at the time, and she told him about an

application that could be downloaded and used to make fake text messages. (RR65:

37). The Appellant decided that the fake text messages would give him the ―extra

push‖ to prove his point and get the prosecutor to dismiss the case. (RR65: 39).

The Appellant admitted that he created the fake text messages. (RR65: 40–41). He

also admitted that he bought a gun from Linda‘s brother, Christopher Allen.

(RR65: 43).

The Appellant testified he went to the James‘ house on September 5, 2012,

with the gun. (RR65: 38, 48). He contemplated killing the entire family, but when

22

he thought about Shania‘s younger brother, who was completely innocent, he got

back in his car and left. (RR65: 38, 48). The Appellant admitted to sitting in his

car outside of their house for thirty to forty-five minutes, just thinking. (RR65: 49).

On September 6, 2012, ―D‖ received a text message from Shania wanting to

meet. (RR65: 54). Shania told him that she was at Hebron High School. (RR65:

54). The Appellant testified that he wanted to meet with Shania to ―tell her how

she ruined my life. How . . . the small lie she told took everything from me.‖

(RR65: 55).

The Appellant testified that he was going to meet Shania when she was

supposed to be in tutoring. (RR65: 57). Shania told him to park by the tennis

court. (RR65: 57). The Appellant denied having the gun with him while he was

standing outside waiting for her; instead, he claimed he left it in his car. (RR65:

59–60). When Shania came out of the door, she called his cell phone and asked if

that was him with the hat on his head. (RR65: 58–59). The Appellant answered

affirmatively and turned toward her. (RR65: 59). Shania froze when she saw him

and said: ―Oh, shit.‖ (RR65: 59).

The Appellant testified that he told Shania he was not going to hurt her and

just wanted to talk to her. (RR65: 59). He claimed that Shania relaxed and walked

with him to the car. (RR65: 60–61). The Appellant opened the passenger door for

her and she got in. (RR65: 61). He denied forcing her to get in the car or using the

23

gun. (RR65: 62). However, the Appellant admitted that Shania saw the gun.

(RR65: 67). He testified that he had placed the gun in the door handle, but when

he began to drive, it would slide around, so he placed the gun in his lap between

his legs. (RR65: 67).

The Appellant drove to Sam Houston Trail Park, where he and his wife had

walked the Campion Trail two or three months earlier. (RR65: 67–69). During the

drive he thought about his childhood and how his grandfather and mentally

retarded brother had raped him. (RR65: 72). He also thought about his daughter

and the holes in her shoes. (RR65: 72). He told Shania that he had been on her

Facebook page and saw pictures of her enjoying herself while her lies had ruined

his life. (RR65: 71). He told her he had to give his Ford Mustang to a lawyer and

he could not provide for his kids. (RR65: 66). He also told her that he had been

outside of her house the night before and was going to kill everyone inside. (RR65:

66). The Appellant testified that he started to cry, and Shania reached up and

placed her hand on his and told him she was sorry. (RR65: 66–67).

When they arrived at the park, they sat in silence for a few minutes. (RR65:

70–71). The Appellant told her that he was in pain and she should be in pain too.

(RR65: 71). Shania told him that her life had not been happy. (RR65: 73). She

told him she had an abortion. (RR65: 73). The Appellant testified that, as soon as

24

she said that, he told her to get out of the car and leave her cell phone on the

dashboard. (RR65: 73).

They walked to the sidewalk and down a slope towards the Trinity River.

(RR65: 73–74). The Appellant testified that he told Shania to go down the slope

and wait approximately ten minutes, and then she could come back up and go call

her mother. (RR65: 74). The Appellant told her that he did not care what she told

her mother, but she could not tell her that he had kidnapped her because she got in

the car willingly. (RR65: 74).

When Shania was about halfway down the slope, he turned and started to

walk away, but stopped, pulled the gun out of his pocket, turned around, and shot

Shania in the back. (RR65: 75). Shania lost her balance and fell into the water.

(RR65: 76). The Appellant shot her again. (RR65: 76). He testified that he was

not sure where he shot her, but he had been trying to shoot her in the head with the

first shot. (RR65: 76).

According to the Appellant, Shania tried to swim out of the water toward the

embankment. (RR65: 76). The Appellant went down the embankment ―to finish

what I was doing.‖ (RR65: 77). He told Shania he was not going to shoot her

again, and helped pull her out of the water. (RR65: 77–78).

The Appellant testified that Shania said: ―Why, Wish?‖ (RR65: 79). She

told him that the right side of her body was going numb. (RR65: 79). Once she

25

was out of the water, the Appellant told her to lie down. (RR65: 79–80). Shania

was not showing any emotion and complied with his instructions. (RR65: 80).

While she was lying there, looking up at him, he put his foot on her neck. (RR65:

80). The Appellant was not sure how long he stood there with his foot on her neck.

(RR65: 81). When he finally removed his foot, he told her he was sorry and rolled

her into the river. (RR65: 82).

The Appellant went back to his car, sat for a few minutes, and then left the

park to dispose of the items he had used. (RR65: 84). First, the Appellant broke

the throwaway phone and threw it out of the window near the crime scene. (RR65:

85). He then threw Shania‘s iPhone in a pond near his gym. (RR65: 85). He put

his muddy sneakers in the storm drain next to the pond. (RR65: 86). Next, he

threw the clip from the gun out of the window while he was driving on Interstate

635. (RR65: 86). He threw the gun into a pond on the way to pick his wife up

from work. (RR65: 86). The Appellant testified that Jawanna did not get off of

work until 9:00pm, but he arrived at 8:00pm, and sat in the car and cried. (RR65:

87). The Appellant testified that he could not sleep that night. (RR65: 88). The

police came to his apartment the following day and he went with them to the

Carrollton Police Department, voluntarily. (RR65: 90).

The Appellant admitted that the four video-taped interviews with the police

were full of lies, but claimed that he was telling the truth about being innocent of

26

the sexual assaults. (RR65: 91–100). The Appellant testified that he lied because

he was trying to cover up what he had done. (RR65: 91). The Appellant denied

any involvement in the crime in the first two interviews, but finally confessed

because his mother would have wanted him to. (RR65: 91–97). The Appellant

admitted that he did not tell the detectives everything, including the fact that the

text messages were fake. (RR65: 97).

The Appellant agreed to the fourth interview with the detectives because he

wanted closure and wanted to confess everything. (RR65: 100). The Appellant

testified that he agreed to interviews with Channel 4 and Channel 8 because he

wanted to get everything off of his chest, and he wanted everyone to know that he

did not have sex with Shania. (RR65: 101). The Appellant testified that he knew

he was going to win if he went to trial on the sexual assault charges because he had

the recordings of Shania. (RR65: 106). The Appellant testified that the recordings

showed that her story changed multiple times. (RR65: 106).

On cross-examination, the Appellant admitted that he began to plan to kill

Shania in July 2012. (RR65: 108). The Appellant admitted that every time he

contacted Shania he was pretending to be ―D.‖ (RR65: 109). The Appellant agreed

that Shania had a crush on ―D.‖ (RR65: 109). The Appellant admitted that he told

the police he did not have a 903 number, he did not contact Shakeema Morsley, he

did not go to Carrollton or Mesquite, and he was not at Hebron High School.

27

(RR65: 115). The Appellant admitted that he had lied to the detectives because he

thought he could get away with Shania‘s murder. (RR65: 115, 119). The

Appellant admitted that he never told anyone that the text messages were fake.

(RR65: 112). In fact, during his interview with David Schechter from Channel 8,

he said that he had text messages that proved that Shania lied. (RR65: 122–23).

The Appellant testified that he was confident he would win at trial because of the

recordings, not because of the text messages; however, he called his attorney

immediately after he made the text messages. (RR65: 138). He admitted that he

would have used the text messages at the trial even though they were fake. (RR65:

139).

The Appellant admitted that he told the detective with the Carrollton Police

Department and David Schechter with Channel 8 that Shania had made up the

sexual assault allegations because her mother made her. (RR65: 127). However,

during the conversations Shania had with ―D,‖ she never said that she lied about

the sexual assaults and never told him that her mother made her lie. (RR65: 130).

Lynne Corsi, an attorney and licensed social worker, testified as an expert in

child sexual assault cases. (RR65: 193–96). Corsi did not review any of the

materials related to this capital murder, but she did review the files, police reports

and interviews related to the sexual assault allegations. (RR65: 196). Corsi

reviewed Tom Cox‘s file and testified there was nothing substantive in the file

28

relating to any potential defense, despite the fact that Cox had spent a year on the

case. (RR65: 204). Cox did not file any motions in the Appellant‘s case. (RR65:

204). Corsi also reviewed Hugo Aguilar‘s file, and while there were notes in the

file, there were no discovery motions, interview notes, or any indication that

Aguilar had met with the Appellant. (RR65: 205–06). There was no indication that

either Cox or Aguilar ever requested or employed an investigator to work on the

case. (RR65: 206–07).

Corsi testified that if she had represented the Appellant on the sexual assault

charges she would have immediately filed a motion for an investigator. (RR65:

208). She would have met with the Appellant on numerous occasions and asked

him to bring collateral witnesses, whom she would have interviewed separately.

(RR65: 208). She would have requested discovery from the State, and would have

specifically requested Shania‘s forensic interview. (RR65: 208–09). She would

have also listened to the recordings that the Appellant made. (RR65: 210).

Arty Hayes, the Appellant‘s brother-in-law and his pastor, provided

counseling to the Appellant concerning the sexual assault allegations. (RR65: 263–

67). Hayes testified that the Appellant and Jawanna drove from Dallas to

Texarkana to meet with him. (RR65: 268). Hayes and his co-pastor, William

Cooper, met with the Appellant alone first. (RR65: 267). The Appellant wanted

them to know that he was innocent and was very disturbed about the situation.

29

(RR65: 267). According to Hayes, the Appellant seemed very concerned and

depressed. (RR65: 268).

State’s Rebuttal

Shirley Brown, and her two daughters Julia and Jazmine, testified that

Shania told them about the sexual assaults. Shirley testified that Shania came to

her house crying in the spring of 2011. (RR65: 290). Shania told Shirley that she

had something she wanted to tell her but was scared because if she told anyone,

―someone would come up hurt.‖ (RR65: 291). Ultimately, Shania told Shirley that

a man had been raping her when she was babysitting. (RR65: 292). He would hold

a sword to her neck and force himself on her. (RR65: 292).

Julia Adams also testified that Shania told her that a man was raping her

when she was babysitting. (RR65: 304–06). Shania told her that he would put

swords in her face and threatened that if she told anyone about what was going on

he would hurt her and her family. (RR65: 305–06).

Shania told Julia that the sexual intercourse was a ―habit‖ at first. (RR65:

308–09). Julia clarified that this meant that the Appellant had already threatened

her, ―so she tried to look over it, tried to cope with it,‖ but then he became rough

with her. (RR65: 309). Shania became afraid because he told her: ―I‘m going to

kill your family if you tell. Remember if you tell, I‘m going to kill you and your

30

family.‖ (RR65: 309). Julia testified that Shania did not want to have sex with the

Appellant. (RR65: 309).

Jazmine Adams testified that there was a day in April 2011 when Shania

came to school dressed in sweats instead of her school uniform. (RR65: 318–19).

Shania told Jazmine that her mother had caught her texting a twenty year-old man

and put her out of the house. (RR65: 319). Jazmine found out that the Appellant

had sexually assaulted Shania. (RR65: 320).

Jennifer Dibrell testified that she retrieved the Appellant‘s property from the

Mesquite Police Department following his arrest for the sexual assault charges.

(RR65: 334–35). The Appellant told her not to give Jawanna his cell phone.

(RR65: 335). Jennifer testified that she and the Appellant argued about him being

there when Shania was babysitting because there was no reason to have a

babysitter if the Appellant was going to be at the apartment with the kids. (RR65:

337). Jennifer also testified that when the sexual assault allegations came up, the

Appellant asked her to write a statement for him stating that her children said he

was never alone with Shania, but she refused. (RR65: 337–38).

Jawanna Arrington testified that the Appellant picked her up from work on

September 6, 2012. (RR65: 351). Jawanna noticed that the Appellant had sprayed

a lot of cologne in the car, and she thought there had been another woman in the

car. (RR65: 352). Jawanna testified that the Appellant was more affectionate than

31

usual that night. (RR65: 353). They took a bubble bath, cooked dinner, and were

intimate. (RR65: 353).

Jawanna testified that the Appellant never showed her the text messages that

led to the sexual assault charges. (RR65: 353–54). He only told her ―his version of

what they said.‖ (RR65: 354). He told Jawanna that Shania had sent him a text

message asking him if he loved Jawanna. (RR65: 354). The Appellant told

Jawanna that he said yes, and Shania responded: ―I wish I didn‘t have these

feelings.‖ (RR65: 34). The Appellant told Jawanna he replied: ―I can‘t have you in

that way.‖ (RR65: 355). The Appellant told her he did not want to hurt Shania‘s

feelings. (RR65: 355). They did not discuss the messages any further. (RR65:

355). After the Appellant was arrested for capital murder, Jawanna moved his

belongings, including some swords, out of her apartment and gave them to his

sister. (RR65: 356).

Punishment Phase

State’s Case-in-Chief

During the punishment phase of the Appellant‘s trial, the State presented

evidence of the Appellant‘s escape from Parkland Hospital while in the custody of

the Dallas County Sheriff‘s Department awaiting trial for capital murder. Dallas

County Sheriff‘s Deputy Steven Underwood testified that he was assigned to guard

the Appellant on the evening of December 4, 2012. (RR66: 143–84). The

32

Appellant was admitted to Parkland on December 1st after complaining that he

was dizzy, and was due to be discharged that evening at 9:30pm. (RR66: 147;

RR68: 68; SX: 240). This was the Appellant‘s sixth visit to Parkland since his

arrest for capital murder in September. (RR68: 67–68; SX: 240). Shortly after

8:00pm, the Appellant asked Underwood if he could take a shower before he was

taken back to jail. (RR65: 147). Underwood agreed. (RR66: 148).

The Appellant was restrained with leg restraints and handcuffs, and

Underwood decided to remove them so the Appellant could shower. (RR66: 148).

Once Underwood removed the Appellant‘s leg restraints, he sat up on the side of

the bed and turned to face Underwood. (RR66: 148). When the handcuffs were

also removed, the Appellant told Underwood: ―I‘m sorry, man,‖ and grabbed

Underwood by his gun holster and vest and backed him into the wall. (RR66: 148–

50). The Appellant had some type of sharp object in his left hand and told

Underwood he would cut him if he moved. (RR66: 150–51). Underwood grabbed

the Appellant and backed him into the left corner of the room. (RR66: 151). The

two wrestled around and the Appellant reached for Underwood‘s gun. (RR66:

151).

Underwood tried to knock the Appellant to the ground but was unable to.

(RR66: 151–52). The two continued to wrestle, and then Underwood heard a

―pop.‖ (RR66: 152). Underwood‘s holster had broken and the Appellant had his

33

gun. (RR66: 152). The gun was a fully loaded Glock 22, 40-caliber. (RR66: 167,

170). Underwood put his hands in the air and complied with the Appellant‘s

commands to get on the ground. (RR66: 155–56). The Appellant then fled the

room. (RR66: 157). Underwood called his supervisor and chased after the

Appellant, but was unable to apprehend him. (RR66: 179).

After his escape, the Appellant fled the hospital to a residential

neighborhood a few blocks from the hospital. (RR66: 187–88). At approximately

8:30pm, the Appellant knocked on Mary Cassio‘s door and asked for help. (RR66:

184–85). The Appellant claimed that someone was shooting at him and stole his

car. (RR66: 185). He did not have a shirt or shoes and was wearing hospital pants

and hospital bracelets. (RR66: 186). Cassio, whose three teenage children and

daughter-in-law were also in the home, did not let him in. (RR66: 184–86).

Instead, she told the Appellant she was going to call 911. (RR66: 186). The

Appellant told her not to call the police because he had warrants, and took off

running down the street. (RR66: 187). When Cassio went outside, she found a

yellow hospital sock on the ground which appeared to contain a gun. (RR66: 189).

Cassio testified that while the Appellant did not show any aggression toward her,

she also testified that there were multiple people in the home, which the Appellant

was able to see. (RR66: 196–98).

34

Senior Corporal Christian Dalesandro, a sniper and negotiator with the

Dallas SWAT team, testified generally about the duties of the Dallas Police

Department SWAT team, and specifically about his involvement in the Appellant‘s

capture following his escape from Parkland Hospital. (RR67: 49–71). Dalesandro

responded to a location off of Harry Hines Boulevard on December 4, 2012.

(RR67: 49–50, 52). Approximately twenty-two to twenty-five Dallas SWAT

officers were at the location. (RR67: 55). The Appellant had been located in a red

Austin‘s Barbeque van parked between two buildings. (RR67: 54; SX: 292, 293,

294, 295). A patrol sergeant was speaking with the Appellant, but Dalesandro

eventually took over the communications. (RR67: 56). Dalesandro and the SWAT

snipers were unable to see the Appellant‘s left hand and were concerned he had a

weapon. (RR67: 60–61).

Dalesandro noted that there were no negotiations with the Appellant because

there were no hostages and there was nothing he wanted from the Appellant.

(RR67: 57). Instead, Dalesandro informed the Appellant that he was surrounded

by Dallas SWAT and was no longer dealing with the Parkland Police or with the

Dallas Police Department. (RR67: 59). Dalesandro informed the Appellant that he

could place his hands out of the vehicle, surrender, and be taken back into custody

without further event. (RR67: 59). Otherwise, they would use alternatives that

would be more difficult for the Appellant. (RR67: 59). Dalesandro explained that

35

they could shoot gas into the vehicle which would have made it difficult, if not

impossible, for the Appellant to stay inside. (RR67: 59–60). Ultimately, the

Appellant came out of the vehicle and was returned to custody. (RR67: 61).

In addition to the evidence of the Appellant‘s escape, the State also

presented evidence of the Appellant‘s criminal history through certified copies of

his prior convictions. (SX: 245–48). On August 30, 1999, the Appellant pled

guilty the offense of theft $1,500 and was sentenced to five years‘ deferred

adjudication community supervision. (SX: 245). His probation was revoked on

October 29, 2001, and he was sentenced to fifteen months‘ confinement in state

jail. (SX: 245). One of the grounds for the revocation was the commission of a

new offense—burglary of a motor vehicle on or about January 30, 2001. (RR66:

141–42; SX: 245). On October 12, 2001, the Appellant entered a plea of guilty to

the offense of evading arrest detention and was sentenced to thirty days in jail.

(SX: 246). On that same day, the Appellant also pled guilty to the offense of

failure to identify and was sentenced to thirty days in jail. (SX: 247). On

November 26, 2007, the Appellant pled guilty to the charge of fleeing or

attempting to elude a police officer and was sentence to twenty-two days in jail.

(SX: 248).

The State also presented testimony concerning the Appellant‘s lies,

manipulation, infidelity and violence against women. Over the course of

36

approximately five years, the Appellant had five children with different women:

daughter Kurstyne with Latrice Brown in 2000; son Trey with Linda Crawford in

2001; son Ahmad with Labrena Henderson in 2001; daughter Dezire with Jennifer

Dibrell in 2004; and son TK6 with Nicole.

Linda Crawford, the mother of the Appellant‘s twelve year-old son Trey,

testified about several incidents where the Appellant was physically violent with

her. (RR66: 80). The first incident occurred when she was seven or eight months

pregnant with Trey. (RR66: 85). Linda testified that she surprised the Appellant at

his apartment and found him with another woman. (RR66: 85, 101). Linda tried to

push her way into the apartment, but the Appellant came outside, pushed her and

told her to ―get going and don‘t come around here.‖ (RR66: 86, 103–04). He

grabbed her by the throat and held her against the building, then told her to leave.

(RR66: 86). He pushed her and shoved her away from the apartment, all the way

to a convenience store. (RR66: 86).

Sometime after Trey was born, the Appellant called her over to his

apartment so they could be ―intimate.‖ (RR66: 87). While she was there, Labrena,

the mother of the Appellant‘s other son, returned home and wanted to know why

Linda was there. (RR66: 87–88, 106). The Appellant pretended not to know, and

feeling embarrassed, Linda began to argue with him. (RR66: 88). At one point,

6

The record does not reflect when TK was born.

37

Linda threw a baby‘s milk bottle at the Appellant, hitting him in the face. (RR66:

116). The Appellant picked up the bottle and poured the milk over her head.

(RR66: 116, 118–19).

As Linda was leaving, the Appellant swung a clothes hanger at her and hit

her on her arm. (RR66: 88). Linda was holding Trey, who was only a few months

old, and had to ―let him go‖ to defend herself against the Appellant‘s assault.

(RR66: 88). She was able to catch Trey before he hit the ground, but she ended up

with a cut on her arm from the clothes hanger. (RR66: 88). Linda‘s father called

the police and the Appellant was arrested for assault. (RR66: 88).

Linda testified that she knew the Appellant had a thirteen year-old daughter,

Kurstyne with Latrice Brown, another son named Ahmad, who is approximately

twelve, with Labrena Henderson, and another son named TK with a woman named

Nicole. (RR66: 89–90). Linda did not learn that TK was the Appellant‘s son until

her was arrested in this case, despite the fact that TK and his mother lived in the

same apartment complex as Linda and Trey, and the two boys played together.

(RR66: 90).

Labrena Henderson, the mother of the Appellant‘s son Ahmad, testified that

shortly after she had Ahmad, the Appellant would leave for days at a time and not

tell her where he was going. (RR66: 127–28). On one occasion, when Labrena

questioned the Appellant about where he had been, he got upset and pushed her up

38

against a wall. (RR66: 127–28). Labrena immediately left and went to her

mother‘s house. (RR66: 128).

The Appellant was also violent with his wife Jawanna. Jawanna testified

that the Appellant ―put his hands on her‖ on several occasions. (RR66: 202). He

would choke her, threaten her with knives, and on two occasions, had put a gun to

her head. (RR66: 202, 209–10). Jawanna testified that the incidents would begin

with an argument, and when she responded to his anger with silence, he would

grab her around the neck with both hands and choke her. (RR66: 202–03).

Jawanna testified that this happened more than twenty times over the course of

their relationship. (RR66: 204). Jawanna testified that they would argue about

everything from the Appellant having a bad day to her catching him texting other

women. (RR66: 205). On one occasion when they were arguing over her cell

phone, the Appellant forced Jawanna to the floor against the fireplace. (RR66:

204). She ended up with bruises and scratches on her back from the bricks on the

fireplace. (RR66: 204). Jawanna did not call the police because she loved the

Appellant and did not want him to get in trouble, nor did she want her family to

find out about the abuse. (RR66: 203).

Finally, the State presented the testimony of Melodye Nelson, a 24-year

veteran of the Texas Department of Criminal Justice (―TDCJ‖), and an expert in

the Texas prison system. (RR67: 94–156). Nelson is currently the senior warden

39

of the Mountain View Unit, a maximum security facility that houses the female

death row population, and she previously served as the major of correctional

officers at the Polunsky Unit, which houses the male death row population. (RR67:

95–96).

Nelson testified generally about the number and types of facilities in the

TDCJ, the number of inmates and guards, how inmates are classified, and the

opportunities for violence within the Texas prison system. (RR67: 95–156).

Nelson testified that, despite the security present in the TDCJ, violence still occurs

in both minimum security areas and on death row. (RR67: 119–20). This includes

assaults, sexual assaults, gang activity and murder. (RR67: 120).

Appellant’s Case-in-Chief

The Appellant presented evidence concerning his difficult childhood,

including his mother‘s murder and his upbringing in foster care. Clifford Harper,

a former detective with the St. Louis Metropolitan Police Department (―SLMPD‖)

in St. Louis, Missouri, worked many crimes in the Cabanne Courts neighborhood

where the Appellant was raised. (RR67: 166). The neighborhood was known for

its gang activity, drugs, and violent crime. (RR67: 166). Harper characterized the

neighborhood as one of the worst in St. Louis. (RR67: 166).

During Harper‘s twenty years with the SLMPD, he spent six years as a

homicide detective. (RR67: 165). One of the homicides Harper investigated was

40

the February 1, 1997 murder of Appellant‘s mother, Brenda Elkins. (RR67: 167–

68, 179). Elkins was raped, sodomized and shot point blank in the head with a 12-

gauge pump shotgun. (RR67: 168). Harper described the crime scene as one of the

worst he had ever seen. (RR67: 177). Jerry Brandon was ultimately convicted of

the crime and remains in prison. (RR67: 177). The Appellant was not present

during the murder. (RR67: 180).

Rose McGill, the Appellant‘s foster mother when he was fifteen, testified

that the Appellant was always full of joy. (RR67: 217, 221, 224). He was obedient

and did not cause any disruptions while he lived with her. (RR67: 227). However,

McGill felt that the Appellant had a lot of anger because he felt that someone in his

family should have taken him and his brother in, rather than letting them go into

foster care. (RR67: 225). The Appellant even had relatives that lived down the

street from McGill; however, they did not want to take him into their home.

(RR67: 225–26). McGill made sure that the Appellant had contact with his family

while he was living with her, but the Appellant expressed quite a bit of resentment

toward them. (RR67: 225).

The Appellant‘s older sister, Dorothy, ended up taking the Appellant and his

brother once she turned twenty-one. (RR67: 227–29). McGill was against this and

would have welcomed the Appellant to continue living with her. (RR67: 227).

McGill believed that the Appellant‘s sister was not stable enough to care for two

41

teenagers when she was only twenty-one or twenty-two years old, and was

additionally caring for her own two young sons. (RR67: 227–29).

While McGill noted that the Appellant needed love, he never needed any

special resources from the State. (RR67: 239). McGill taught the Appellant how to

abide by the rules, to keep his hands to himself, and to be respectful to women.

(RR67: 239–40). The Appellant was always respectful to her and the other

children. (RR67: 240). McGill was disappointed when she learned about his

behavior when he went to live with his sister. (RR67: 240–41). She would talk to

the Appellant and tell him that he was getting on the wrong track, but there was

nothing else she could do. (RR67: 241). McGill always had a place for the

Appellant, even up to the present day. (RR67: 243–44).

Dorothy Elkins, the Appellant‘s older sister, testified about the environment

she and her siblings grew up in. (RR67: 246). When Dorothy was approximately

three or four years old, CPS began an investigation into the family, and became

concerned that their mother, Brenda, was not properly caring for her and her

brother Tony. (RR67: 247–48). Tony, the oldest sibling, is mentally disabled and

has been in an assisted living center in Missouri his entire life. (RR67: 246).

Dorothy was sent to California, where she lived for the next five or six years, until

she was nine years old. (RR67: 248). When Dorothy returned to St. Louis, she

42

learned that her mother had given birth to five children while she was gone.

(RR67: 248). The Appellant was the youngest of the children. (RR67: 249, 266).

The family lived in a three bedroom apartment in the Cabanne Courts

neighborhood, where drugs and violence were common. (RR67: 249–51). The

children were not allowed to play outside because of the violence, but when they

did go outside they often saw drug deals and shootings. (RR67: 250–52). On one

occasion, people came to their apartment looking for their uncle because he had

been selling drugs on another person‘s territory. (RR67: 253). The men shot her

uncle in the leg in front of everyone. (RR67: 253).

Dorothy‘s grandfather, Lawrence, also lived with them. (RR67: 250).

Dorothy testified that her grandfather molested everyone in the house, including

her. (RR67: 265). She also testified that he was the father of Brenda‘s oldest son,

Tony. (RR67: 165–66). As far as sleeping arrangements, Brenda had her own

room, her grandfather and her brother Michael shared a room, and the other five

children slept in the third bedroom. (RR67: 251). Dorothy shared a bunk bed with

her sister, while her three brothers shared another bunk bed. (RR67: 251).

The family lived there until Dorothy was fourteen or fifteen years old.

(RR67: 251). They had to move when Brenda was arrested for shooting a man.

(RR67: 256). CPS placed all of the children in foster care. (RR67: 251–52, 257).

Dorothy and her sister went to one foster home, while the brothers were sent to a

43

different home. (RR67: 257). At some point, the Appellant was separated from his

brothers and was sent to yet another foster home. (RR67: 257). However, their

Aunt Rose and Uncle James quickly came and took all of the children to live with

them in Texarkana, Arkansas. (RR67: 258).

Their mother was released from prison approximately two-and-a-half years

later, and came to live with them in Texarkana. (RR67: 258–59). They lived with

Aunt Rose and Uncle James until Brenda was able to afford an apartment. (RR67:

259). They were reunited for less than a year when Brenda was arrested for

violating her parole and was sent back to Missouri. (RR67: 259). Dorothy, who

was seventeen, stayed with her aunt and uncle, while her younger brothers—

Sammy, John and the Appellant—went back to foster care. (RR67: 260). Dorothy

believed that the Appellant lived in at least four different foster homes during his

teenage years. (RR67: 257).

Eventually, the Appellant and Sammy came to live with her. (RR67: 261–

62). Dorothy had a four bedroom apartment where she lived with her two sons and

their father. (RR67: 262). When the Appellant turned seventeen, he moved out of

Dorothy‘s apartment and moved in with his girlfriend, Kenzie Monroe. (RR67:

263). Dorothy agreed that the Appellant moved a lot during his twenties, moving

from Illinois to Georgia to California. (RR67: 264). When he met Jawanna

Arrington, he finally began to settle down. (RR67: 264).

44

On cross-examination, Dorothy testified that her grandfather never forced

her to have sexual intercourse, but had fondled her. (RR67: 271–72). Dorothy also

testified that during the summer of 2012, when the sexual assault cases were

pending, the Appellant attended Rob‘s All-White Boat party and also hosted an

anniversary party at his apartment. (RR67: 280–83; SX: 300). She testified that the

Appellant was happy on those occasions and there had been money for alcohol at

the party. (RR67: 283–85).

Brenda Griffin, the Appellant‘s therapist at the Youth Home, a non-profit

facility for troubled youths and teenagers in Texarkana, Arkansas, testified that the

Appellant was at the facility for three-and-a-half months when he was fifteen.

(RR68: 22–24). Griffin testified that the Appellant had very few ties in the world,

but was very bonded with his family. (RR68: 24). The Appellant did not have any

disciplinary problems while he was at the Youth Home. (RR68: 28).

Patrick Gill, a counselor at the Youth Home, worked with the Appellant

during his time at the facility. (RR68: 33). Gill testified that the Appellant was

always respectful, polite and did what was asked of him. (RR68: 34). The

Appellant was sent to Youth Home a month after his mother was murdered

because he was having problems dealing with her death. (RR68: 34–35). The

Appellant talked about his mother‘s death and worked on his coping skills. (RR68:

45

36). Gill testified that the Appellant completed the program faster than most.

(RR68: 36).

Sergenant Ed Chattaway with the Texarkana Police Department testified that

the Appellant assisted in the arrest of his uncle, Robert Elkins. (RR67: 184).

Chattaway was the lead investigator working on two robberies that occurred in

Texarkana, Arkansas in June 2004. On June 4th, a masked man robbed a Triple J

at gunpoint; and on June 15th, a man robbed an E-Z Mart and raped the store clerk.

(RR67: 199, 202–03).

A Crime Stoppers tip naming Elkins as the perpetrator was received on June

9.7 ((RR67: 186, 203). Based on that tip, Chattaway began surveillance of Elkins.

(RR67: 204). On June 22nd, the Appellant contacted Chattaway and told him that

he had information on Elkins‘ involvement in the crimes. (RR67: 86–87).

Chattaway learned that the Appellant had been arrested with his uncle on June 7th

for possession of a criminal instrument. (RR67: 199–200; SX: 297). A flashlight,

pliers, gloves, and a holster for a handgun were recovered from the car that Elkins

was driving. (RR67: 199–200).

Chattaway met with the Appellant and was told that Elkins had committed a

couple of robberies and had raped a store clerk at an E-Z Mart. (RR67: 187–88).

7

Crime Stoppers records revealed that a $1,000 reward was paid for the tip. (RR67: 207; SX:

299).

46

Appellant also told Chattaway that Elkins was planning to rob an Advance Auto

Parts store if certain employees were present at the time. (RR67: 189). As a result

of the Appellant‘s information, a small team was set up to conduct surveillance of

the store on June 22, 2004. (RR67: 189, 206). While Elkins did make an

appearance at the store that night, he never got out of his vehicle and left shortly

after the store closed. (RR67: 190–92). Chattaway and his team set up surveillance

again the next night, June 23, 2004 following another tip from the Appellant.

(RR67: 192).

Elkins did arrive that night and after behaving in a suspicious manner, was

confronted by Chattaway‘s team, and ultimately taken into custody. (RR67: 192–

95). Elkins had a silver handgun, a toboggan with eye holes cut out, and gloves at

the time he was taken into custody. (RR67: 196). Elkins, who was ultimately

charged with two counts of aggravated robbery, rape and possession of a firearm,

and attempted aggravated robbery, was sentenced to two terms of life

imprisonment. (RR67: 197; DX: 34). Appellant testified at the November 2007

trial. (RR67: 207).

James Aiken testified as an expert on the prison system. (RR68: 49). Aiken

reviewed the records related to the Appellant‘s case, including the records

concerning his escape from Parkland Hospital (RR68: 49, 57, 63). Aiken testified

that an escape has to be ―diagnosed,‖ meaning that the circumstances surrounding

47

the escape need to be reviewed, i.e., what was the opportunity, how well planned

was it, how old is it, and whether the prison system can adequately manage

someone who has been involved in that type of activity. (RR68: 58). Aiken

testified that an escape is not necessarily predictive of whether that person will try

to escape again. (RR68: 58). Aiken also testified that as a person gets older, he

generally becomes more compliant, especially in a super-structured environment

like prison. (RR68: 57).

Aiken discussed what he referred to as prisoners with ―juice‖ and prisoners

without ―juice.‖ (RR68: 61). Prisoners with ―juice‖ are prisoners who can control

every aspect of a prison operation by using power and control. (RR68: 61).

Inmates without ―juice‖ are not movers and shakers, and are vulnerable within the

system. (RR68: 61). Aiken testified that the Appellant‘s vulnerability level was

extremely high because of the nature of his offense. (RR68: 62). In Aiken‘s

opinion, the Appellant would not have any ―juice‖ in prison, and the biggest issue

with the Appellant would be keeping him alive if he was exposed to the general

population. (RR68: 62). Aiken did not interview the Appellant, but relied instead

on the official reports from the police and correctional officers. (RR68: 63–64).

Frank AuBuchon, an expert in the Texas prison system, testified that if the

Appellant was sentenced to life without parole and placed in general population,

the least restrictive custody level the Appellant could be assigned is G4, for a

48

minimum of ten years. (RR68: 89). However, in AuBuchon‘s opinion, the

Appellant should be sent to administrative segregation because of the

circumstances surrounding this offense and because he physically assaulted a law

enforcement officer and disarmed him in order to escape. (RR68: 89). AuBuchon

testified that if an inmate was willing to take the necessary steps and risks to

effectuate an escape once, he would likely be willing to do it again. (RR68: 97).

Accordingly, AuBuchon opined that the TDCJ would want to lock such an inmate

down in the most secure situation possible until the inmate presented less of a risk

or no risk of escaping. (RR68: 97).

Latrice Brown, the mother of the Appellant‘s oldest child Kurstyne, testified

that the Appellant cared for Kurstyne while she served three years in prison.

(RR68: 110–11, 114–15). Latrice also testified that the Appellant and his sisters

paid her electric bill for her on one occasion when she had been unable to afford it.

(RR68: 113). She denied that the Appellant had ever been physically violent with

her. (RR68: 117). However, she did receive a letter from the Appellant in July

2013, while he was in jail, in which he opened the letter by writing he was ―pissed

off at you right now.‖ (RR68: 115–16). Latrice testified that he was mad at her

because she was not getting Kurstyne to write to him while he was in jail. (RR68:

115–16, 118–19).

49

Finally, the Appellant‘s daughter Kurstyne testified that she was happy when

she lived with the Appellant and Jennifer Dibrell. (RR68: 125–27). She also

testified that she had not seen the Appellant since he was arrested in this case, but

she loves him very much. (RR68: 128).

State’s Rebuttal

Sherry Gray-James testified about the night that the Appellant escaped from

Parkland Hospital. (RR69: 20). Sherry testified that her husband was at work and

she and her son Zachary were home alone. (RR69: 20). Detective Williams called

her and told her that the Appellant had escaped and expressed concerns for her

safety. (RR69: 21–22). Sherry testified that she was terrified. (RR69: 21–22). She

turned off all of the lights in the house and held Zachary. (RR69: 22). Sherry

testified that she thought the Appellant was going to kill her. (RR69: 22).

Sherry also testified that Zachary missed Shania, and would watch videos of

Shania singing. (RR69: 23). Because Zachary is nonverbal he cannot

communicate how he feels about what happened, but he kisses the phone when he

watches the videos. (RR69: 23). Finally, Sherry explained:

The impact that it‘s had on our life is nothing compared to what

Shania went through. I wouldn‘t even dare try to compare it. But

having my safety taken away, having my daughter brutally taken away

because of someone who was a coward, having my daughter‘s

integrity questioned, all of this loss is just compounded because one

person couldn‘t tell truth. Shania had no reason to lie. The impact it

had on me was because I raised a kid that had good values. I raised a

kid who had good morals. I raised a kid that the only person in this

50

courtroom that had something bad to say about is the person who

killed her.

[…]

To have somebody come to your house and even contemplate taking

your life threatens every single fiber of your safety. Every day when I

leave my house, I‘m looking around. I don‘t know him. Never knew

him. I don‘t know anything about him. If I had known that he was

even remotely close to my daughter and in any arm‘s length of her,

there‘s no way she would have baby-sat. There‘s absolutely no way.

For that, I have to think about that every single day that a baby-sitting

job cost her her innocence; it cost her her life; it cost her her future.

Her very first baby-sitting job. And that shouldn‘t have happened.

(RR69: 23–25).

SUMMARY OF ARGUMENT

Issues 1-3: The trial court properly denied the Appellant‘s Batson

challenges to the State‘s exercise of peremptory challenges against three minority

veniremembers. The Appellant has not met his burden to show that the State‘s

strikes were the product of racial discrimination.

Issue 4: The decision to dismiss John Bigley from the jury was a proper

exercise of the trial court‘s discretion. After receiving evidence and hearing

testimony concerning Bigley‘s work related pressures, the trial court properly

determined that Bigley was disabled due to emotional stress and would be unable

to fully and fairly perform the functions of a juror. Alternatively, any error was

harmless.

51

Issue 5: The trial court properly denied the Appellant‘s motion to quash the

indictment.

Issue 6: The trial court acted within its discretion in denying the Appellant‘s

November 1, 2013 motion for continuance. The trial court‘s actions did not deny

the Appellant his constitutional right to due process or deny him the effective

assistance of counsel on the issue of mitigation during the punishment phase of his

trial.

Issues 7-10: The trial court‘s rulings on the Appellant‘s four motions to

suppress were proper.

Issue 11: The evidence is sufficient to support the Appellant‘s conviction

for capital murder. Contrary to the Appellant‘s assertions, the record is replete

with evidence showing the Appellant killed Shania Gray to prevent her from

testifying against him at the upcoming sexual assault trial, and considering all of

the evidence in the light most favorable to the jury‘s verdict, a rational trier of fact

could have found the essential elements of capital murder beyond a reasonable

doubt.

Issue 12: The trial court did not abuse its discretion by overruling the

Appellant‘s Rule 403 objection to two photographs depicting the complainant‘s

body at the crime scene.

52

Issues 13-18: The Appellant failed to preserve his complainants concerning

the admission of the six audio recordings, Defense Exhibits A, B, C, E, F, and G,

containing phone conversations the Appellant recorded between Shania Gray and

himself while he employed his false identity ―D.‖ While the Appellant argues on

appeal that the recordings were admissible under Article 38.36 of the Code of

Criminal Procedure, he did not offer the recordings pursuant to that statute at trial.

Alternatively, the trial court properly excluded the recordings as inadmissible

hearsay, and the Appellant has failed to show harm.

Issues 19-21: The trial court properly sustained the State‘s objections to the

testimony of defense witnesses Arty Hayes, Ashlye Sams, and Lamar Leggiton that

the Appellant told them he had not sexually assaulted Shania Gray. The statements

were hearsay and were not admissible as prior consistent statements under Rule

801(e)(1)(B).

Issue 22: The trial court properly denied the Appellant‘s request for a jury

instruction on anti-speculation during the guilt-innocence phase of his trial. The

jury was properly instructed on the law applicable to the Appellant‘s case.

Issue 23: The Appellant has not shown that the prosecutor‘s arguments fell

outside the permissible areas of jury argument. In any event, the argument taken

as a whole was harmless in light of the overwhelming evidence of the Appellant‘s

guilt.

53

Issue 24: The evidence was legally sufficient to support the jury‘s answer to

the future dangerousness special issue.

Issues 25-35: The Appellant‘s arguments regarding the punishment charge

are inadequately briefed and multifarious. Regardless, the trial court properly

denied his requested instructions and properly overruled his objections to the

charge.

Issues 36-37: The trial court properly denied the Appellant‘s requested jury

instructions defining evidence that reduces ―moral blameworthiness.‖ This Court

has already considered the arguments raised by the Appellant and has rejected

them.

Issues 38-48: The Appellant‘s admittedly meritless federal constitutional

challenges to the Texas death penalty statute are presented only to preserve the

complaints for federal habeas review. And while Appellant invites this Court to

revisit its prior holdings against his position, he provides no new authority for this

Court or the State to address.

ARGUMENT

STATE’S RESPONSE TO ISSUES 1-3: THE TRIAL COURT DID NOT ERR IN DENYING

THE APPELLANT’S BATSON CHALLENGES.

In Issues 1 through 3, Appellant contends that the trial court erred in

overruling his objection based on Batson v. Kentucky, 476 U.S. 79 (1988) to the

State‘s use of peremptory challenges on veniremembers Syrene Mitchell, Louise

54

Horsley, and Freddie Watson. (Appellant‘s Brief at pp. 53–66). These contentions

lack merit and should be overruled.

Applicable Law

The Texas Code of Criminal Procedure and the U.S. Constitution prohibit

the use of peremptory challenges to exclude prospective jurors on the basis of race.

Tex. Code Crim. Proc. Ann. art. 35.261(a) (West 2006); Batson, 476 U.S. at 85;

Watkins v. State, 245 S.W.3d 444, 447 (Tex. Crim. App. 2008). Under Batson, a

defendant must first make a prima facie showing that the prosecution exercised its

peremptory challenges on the basis of race. Reed v. Quarterman, 555 F.3d 364,

368 (5th Cir. 2009). If the defendant makes that showing, the burden shifts to the

prosecutor to present race-neutral explanations for striking the jurors in question.

Id. The court must then determine whether the defendant has carried his burden of

proving purposeful discrimination. Id.

At the second step of this process, the proponent of the strike need only

tender an explanation that is race-neutral. Watkins, 245 S.W.3d at 447. The

ultimate plausibility of that race-neutral explanation is to be considered as part of

the third step of the analysis. In the third step, the trial court determines whether

the opponent of the strike (usually the defendant) has satisfied his burden of

persuasion to establish by a preponderance of the evidence that the strike was

indeed the product of the proponent‘s racial discrimination. Id. Whether the

55

opponent satisfies this burden, is a question of fact for the trial court to resolve in

the first instance. Id.

Where the prosecutor articulates his reasons for the challenged peremptory

strike in the record and the trial court rules on the ultimate question of intentional

discrimination, the issue of whether the defendant established a prima facie case

becomes moot. See Watkins, 245 S.W.3d at 447; Young v. State, 283 S.W.3d 854,

866 (Tex. Crim. App. 2009).

This Court should not overturn the trial court‘s resolution of the Batson issue

unless it determines that the trial court‘s ruling was clearly erroneous. See Watkins,

245 S.W.3d at 447–48. In assaying the record for clear error, this Court should

consider the entire record of voir dire. It may consider arguments or

considerations not presented to the trial court so long as they are manifestly

grounded in the appellate record. Id. at 448. A trial court‘s conclusion that a

facially race-neutral explanation for a peremptory challenge is genuine, rather than

a pretext, should be given great deference and reversed only when that conclusion

is, in view of the record as a whole, clearly erroneous. Id.

Analysis

1. Appellant failed to establish a prima facie case of discrimination, but the issue

is moot.

After the parties exercised their peremptory strikes, the Appellant objected

to the composition of the jury and asserted his Batson objections. (RR53: 25–27).

56

The Appellant identified three African-American potential jurors that the State

struck. (RR53: 26–27). The State objected on the basis that Appellant had failed to

establish a prima facie case. (RR53: 27). However, without waiting to obtain a

ruling, the State explained its reasons for striking the prospective jurors. (RR53:

27–31). Consequently, this Court must assume that Appellant satisfied his step-

one obligation to make a prima facie case of purposeful discrimination and address

only the second and third steps. See Watkins, 245 S.W.3d at 448; see also

Chambers v. State, 866 S.W.2d 9, 23 (Tex. Crim. App. 1993) (where the State fails

at trial to object to the trial court‘s failure to rule on the defendant‘s prima facie

case, that issue becomes moot and it cannot be raised on appeal).

2. The State’s explanations for its strikes of the three prospective jurors were

race-neutral.

At the second step of the Batson process, the prosecutor need only tender an

explanation that is race-neutral on its face. Purkett v. Elem, 514 U.S. 765, 769

(1995) (indicating the State has a burden of production in the second step merely to

present a facially valid explanation for its strike); Watkins, 245 S.W.3d at 447.

The State satisfied this burden.

Syrene Mitchell and Louise Horsley

At the Batson hearing, the State explained that it struck all qualified

prospective jurors, ―regardless of anything else that they said,‖ who ranked

themselves as a ―3‖ or higher on question number two of their questionnaire.

57

(RR53: 28). Question number two asks: ―With reference to the death penalty,

which of the following statements best represents your feelings?‖ (Q. p. 2)

(emphasis in original). A ranking of ―3‖ indicates the following opinion:

―Although I do not believe that the death penalty should ever be imposed, as long

as the law provides for it, I could assess it under the proper set of circumstances.‖

(Q. p. 2).

The State explained that it struck every person on the qualified-juror panel

that selected number ―3,‖ including Syrene Mitchell (Juror 396-A, an African-

American male), Steven Sperry (Juror 1336-A, a Caucasian male), Louise Horsley

(Juror 422-B, an African-American female), and Penelope Cook (Juror 149-C, a

Caucasian female), from the alternate pool, on the same grounds. (RR53: 28–29).

The record reflects that the State also struck Steven Sperry (Juror 1336-A, a

Caucasian male), who also selected ―3‖ in response to this question. (RR53: 16, Q.

p. 2). The State‘s reason was grounded in Mitchell‘s and Horsley‘s opinion about

the death penalty and is race-neutral. Courts have found similar grounds as facially

neutral. See, e.g., Mathis v. State, 67 S.W.3d 918, 924–25 (Tex. Crim. App. 2002)

(holding prosecutor‘s explanations—that he struck a juror because she was in favor

of the death penalty only in two specified circumstances and she felt the death

penalty was imposed too frequently—were facially race-neutral).

58

Additionally, the State noted that Mitchell ―would hold the State to a higher

burden of proof in a death penalty case.‖ (RR53: 28). During voir dire, Mitchell

stated multiple times that he would hold the State to a higher burden of proof than

beyond a reasonable doubt because this was a case in which the State was seeking

the death penalty. (RR22: 101–04; 148–57). The State challenged Mitchell for

cause on this basis, but the challenge was denied. (RR22: 157). This explanation is

also race-neutral. See, e.g., Watkins, 245 S.W.3d at 450–51 (prosecutor‘s

explanation in a burglary case that the juror would hold the State to a higher

burden than proof beyond a reasonable doubt, especially in order to assess a life

sentence, was race-neutral).

Freddie Watson

At the Batson hearing, the State provided the court with three reasons that it

exercised its peremptory challenge against Watson. (RR53: 29–31, 36–38). First,

the State noted that it struck Watson because of his answer to question number

twelve on the juror questionnaire. (RR53: 29–30; 36–37; Q. p. 4). Question

number twelve asks:

The crime of ―Obstruction‖ means harming or threatening to harm

another person to prevent or delay the service of that person as a

witness or perspective witness. The law in the State of Texas says that

the intentional murder of an individual during the course of

committing or attempting to commit the offense of “obstruction” is a

capital offense for which, depending on the facts and circumstances of

the case, a sentence of life without parole or the death penalty may be

imposed? Do you agree with the punishment range outlined above?

59

(Q. p. 4) (emphasis in original). While Watson checked ―yes‖ in response to the

question, in the explanation portion of his answer Watson wrote: ―Life without

parole would be better for me.‖ (Watson, Q. p. 4). Second, the State noted that

although Watson acknowledged during voir dire that he had heard some of the

facts of this case, he had failed to disclose this on his questionnaire. (RR38: 96–98;

RR53: 30; 37). Finally, Watson also indicated during voir dire that he believed a

person charged with a crime should be released from jail pending the outcome of

the trial. (RR53: 30–31). According to the State, it struck Watson due to the

combination of these three things. (RR53: 29–31; 36–38).

Conclusion

The record supports all of the State‘s proffered race-neutral explanations for

exercising peremptory strikes against the three prospective minority jurors.

Therefore, the trial court did not clearly err in finding that the State satisfied its

burden of producing facially race-neutral explanations for its peremptory strikes.

See Watkins, 245 S.W.3d at 451.

3. Appellant failed to establish by a preponderance of the evidence that the

strikes were the product of racial discrimination.

Appellant failed to demonstrate purposeful discrimination by the State.

Here, the defendant has the burden to persuade the trial court that the prosecutor‘s

explanations for the State‘s strikes were incredible or disingenuous. Watkins, 245

S.W.3d at 457. The focus of the Batson inquiry in this stage is on the genuineness,

60

not reasonableness, of the asserted non-racial motive. Nieto v. State, 365 S.W.3d

673, 676 (Tex. Crim. App. 2012). The question of pretext is a question of fact for

the trial court to resolve, subject to reversal on appeal only for clear error. Watkins,

245 S.W.3d at 457.

Appellant primarily contends that the State‘s strikes must have been racially

motivated because these jurors were qualified jurors and had some characteristics

potentially favorable to the State‘s position on the death penalty. (Appellant‘s Brief

at pp. 53–61). The jurors‘ qualifications for jury service are irrelevant to the

analysis, however. Factors relevant to determining whether purposeful

discrimination has been proven include the following:

1. whether the State utilized its option to shuffle the jury panels in a

manner that supported an inference of race discrimination;

2. whether the prosecutor‘s office trying the case followed a formal

policy to exclude minority venire members from jury service

which was known to at least one of the prosecutors at trial;

3. whether the State exercised its peremptory challenges to eliminate

a far greater proportion of minority venire members than non-

minority venire members;

4. whether the reasons the State asserted for eliminating the minority

venire members in question appeared to apply equally well to

many non-minority venire members whom the State did not

challenge; and

5. whether the State directed questions expressly designed to elicit

grounds for peremptory challenges disproportionately, in a manner

that suggested an intent to single out minority venire members for

elimination.

61

Watkins, 245 S.W.3d at 448–49 (relying on Miller-El v. Dretke, 545 U.S. 231,

240–64, 266 (2005)). This Court looks to the collective and cumulative impact of

these non–exclusive factors in determining whether an inference of racial

discrimination is so powerful that it overcomes the deference given to trial court.

See id. at 449, 457.

An analysis of these factors demonstrates that Appellant‘s claim of

purposeful discrimination lacks merit.

(1) Jury Shuffle

There was no jury shuffle in this case. The parties selected the group of

qualified jurors from a March 22, 2013 special venire. (RR5). Appellant does not

assert or demonstrate that the venire was shuffled or otherwise arranged in a

manner to decrease the possibility of a minority member.

(2) Formal Policy Prohibits Discrimination

The Dallas County District Attorney‘s office‘s notorious formal policy of

excluding minorities is a relic of a bygone era. It is common knowledge that the

office policy of the last several years not only forbids such discrimination, it

requires an investigation into sustained Batson challenges and authorizes discipline

ranging from reprimand to termination. The State asks this Court to take judicial

notice of this well-known fact. Tex. R. Evid. 201.

62

(3) Proportionality of Strikes

Appellant argues that even one racially motivated peremptory strike violates

Batson and he makes no effort to demonstrate a pattern of discriminatory strikes.

He does not identify the size or racial makeup of the pool of qualified venire

members. Nor does he analyze the number of strikes used by either side or how

they were used. He merely argues that the State used 3 of its 12 peremptory strikes

to eliminate 50% of the African-Americans on the qualified prospective jury panel.

(Appellant‘s Brief at p. 64). The State disagrees with this statistic. In actuality, the

statistical data evinces no discriminatory intent.

The data evinces no discriminatory intent by the State. The panel of

qualified jurors consisted of 49 people (45-person panel for the 12-person jury and

a 4-person pool for the alternates). Of these, 37 (or 75.5%) were Caucasian, 8 (or

16.3%) were African-American, and 4 (or 8.2%) were Hispanic. The State

exercised 13 peremptory strikes (12 strikes in order to select a 12-person jury and

one strike in the selection of alternates). (RR53: 11–24). Eight of those 13 strikes

(61.5%) were used on Caucasians, 3 (23.1%) were used on African-Americans,

and 2 (15.4%) were used on Hispanic jurors. (RR53: 11–22). Appellant exercised

13 strikes.8(RR53: 11–24). He struck 1 African-American, 1 Hispanic, and 11

Caucasians. (RR53: 11–24). The result was a 12-member jury consisting of 2

8

The record does not reflect how many strikes the Appellant was permitted.

63

African-Americans, 2 Hispanics, and 8 Caucasians, with 1 African-American and 1

Caucasian as alternate jurors.

By striking 3 African-American jurors, the State eliminated only 37.5% of

the African-Americans on the panel, not 50% as the Appellant alleges.

Nevertheless, the number of African-Americans struck by the State is, by itself, an

irrelevant statistic. It gains relevance only by establishing its correlation to the

entire panel. See Woodward v. Epps, 580 F.3d 318, 339 (5th Cir. 2009) (holding

that the State‘s striking 100 percent of the black jurors alone does not support a

finding of discrimination and does not show any disparity in relation to the non-

minority jurors). In the Appellant‘s case, the correlation shows no discriminatory

intent.

Of the 49 veniremembers who could conceivably be chosen for the

Appellant‘s jury, 8 (16.3%) were African-American. A random selection would

yield either 2 or 3 African-American jurors in the 14 jurors selected (12 plus 2

alternates) (or 16.3% of fourteen, equaling 2.28 jurors). See Watkins, 245 S.W.3d

at 451–52 (holding a random selection from a 22% African-American venire

would yield 2 or 3 African-American jurors because 22% of 12 jurors, plus 1

alternate, was 2.86).

The 12-member jury here consisted initially of 8 Caucasians, 2 African-

Americans, and 2 Hispanics, with an African-American as the first alternate and a

64

Caucasian as the second alternate. John Bigley, a Caucasian juror, was dismissed

by the court prior to the beginning of the trial. (CR3: 108; RR56; RR57: 78–82).

The first alternate, an African-American, took Bigley‘s place, meaning that the

final 12-member jury now had 3 African-Americans. (CR3: 108). Thus, 16.3% of

the qualified jurors were African-American and 25% of the 12-person jury was

African-American. Accordingly, the jury had 3 African-Americans, more African-

Americans than would be expected from a random selection of the 49 qualified

jurors. The statistical analysis fails to show any racial discrimination, and this

factor strongly supports the trial court‘s ruling.

(4) Comparative Analysis

Appellant contends on appeal that the prosecutor‘s stated reasons are a

pretext for race discrimination because non-minority jurors with similar responses

were not struck by the State. (Appellant‘s Brief at pp. 55–56 (regarding Mitchell),

57–58 (regarding Horsley), 60–61 (regarding Watson), 62 (regarding all three

jurors)). At the Batson hearing, however, defense counsel failed to provide a

comparative analysis on the jurors. (RR53: 25–31, 33–38). Counsel did not cross-

examine the prosecutor about his reasons for not striking any similarly situated

venire members. (RR53: 25–31, 33–38). As such, the prosecutor had no

opportunity to respond to counsel‘s allegations. Appellant should not be permitted

to raise claims of disparate treatment for the first time on appeal. By failing to

65

properly present this claim at trial, he denied the prosecutor the opportunity to

create a record on the prosecutor‘s strategy, and he denied the trial court an

opportunity to rule on the claim. Whether a prosecutor intended to discriminate on

the basis of race is a question of historical fact properly decided in the trial courts.

See Hernandez v. New York, 500 U.S. 352, 367–69 (1991). State procedural rules

demand that allegations of disparate treatment by the prosecutor be raised in the

trial court, so that they can be properly answered by the State and decided by that

court. See Tex. R. App. P. 33.1(a); Watkins, 245 S.W.3d at 457–58 (Keller, P.J.,

concurring); Young v. State, 826 S.W.2d 141, 147–49 (Tex. Crim. App. 1991)

(Campbell, J., dissenting).

The State acknowledges this Court‘s majority opinion in Young that a non-

capital defendant is not required to raise a comparative analysis in the trial court to

have evidence of such considered on appeal. Young, 826 S.W.2d at 145–46. The

Fifth Circuit has applied Young to a capital case and criticized this Court‘s

inconsistency in its application of the contemporaneous objection rule to Batson

claims in capital cases. Reed, 555 F.3d at 370.

This Court should explicitly overrule Young. See generally Watkins, 245

S.W.3d at 457–58 (Keller, P.J., concurring); Young, 826 S.W.2d at 147–49

(Campbell, J., dissenting). Its majority—and the courts that rely on it—view the

comparative analysis as merely an appellate argument that can be fairly addressed

66

for the first time on appeal. Young, 826 S.W.2d at 146. In truth, it is a factual

allegation of unfair treatment between jurors. If properly raised in the trial court,

the prosecution‘s response may provide additional facts for the appellate court to

consider when reviewing the Batson ruling. If raised at trial successfully, the trial

court can cure the error before trial even begins.

If not raised at trial, the prosecutor‘s mental process and the trial judge‘s

credibility decision concerning the non-strikes are simply omitted from the record.

Jurors are not products of a set of cookie cutters, and the unexplained decision not

to strike a non-minority juror who shares one trait in common with a minority juror

is held against the State on appellate review. See, e.g., Miller-El, 545 U.S. at 244

(stating, ―If, indeed, Fields‘s thoughts on rehabilitation did make the prosecutor

uneasy, he should have worried about a number of white panel members he

accepted with no evident reservations.‖) (emphasis added). The prosecutor‘s

explanation of her voir dire strategy and the trial court‘s ruling on the strategy is

critical to a fair appellate review.

At the very least, a prosecutor should enjoy favor on appeal when the matter

is not raised at trial, much like the presumption against a finding of ineffective

assistance of defense counsel. In claims regarding violations of a client‘s

constitutional right to counsel, this Court has stated that ―counsel should ordinarily

be accorded an opportunity to explain her actions before being condemned as

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unprofessional and incompetent.‖ Bone v. State, 77 S.W.3d 828, 836 (Tex. Crim.

App. 2002). A prosecutor‘s credibility is the heart of Batson review, and she

should be accorded no less of an opportunity to explain her actions.

This Court should conclude that the comparative analysis is not preserved

for review or, alternatively, presume that the comparative analysis favors the

prosecutor absent affirmative evidence on the record.

In any event, Appellant has wholly failed to establish that the potential jurors

who are the focus of his Batson challenge were similarly situated to non-minority

potential jurors who were not struck.

Syrene Mitchell and Louis Horsley

As argued above, the State struck each and every qualified prospective juror

regardless of race who ranked him/herself as a ―3,‖ indicating a belief that,

―Although I do not believe that the death penalty should ever be imposed, as long

as the law provides for it, I could assess it under the proper set of circumstances.‖

(Q. 2; RR53: 28–29, 35–36). The State struck all 5 ―3s‖ on the qualified

prospective juror panel. (RR53: 28–29, 35–36). Appellant points to no evidence to

the contrary. He cannot show disparate treatment of Mitchell and Horsley

compared to accepted non-minority veniremembers. As such, Appellant has failed

to show that the prosecutor‘s explanation was a pretext for discrimination.

68

Freddie Watson

The State explained that it struck Watson because he was the only person on

the panel that (1) knew about the facts of the case, (2) wrote on his questionnaire

that ―life without parole would be better for me‖ in a case in which the aggravating

factor elevating the charge to capital murder was obstruction, and (3) he believed

that people charged with a crime should be released pending the outcome of the

trial. (RR53: 29–31, 36–38). Appellant has not shown that any other prospective

jurors that responded similarly, and the State finds none.

Importantly, during the Batson hearing, defense counsel did not challenge

the prosecutor‘s stated reason. Whether Appellant‘s counsel personally felt such

information should be the basis for a strike, is irrelevant; nothing indicates this was

a pretext for discrimination. He cannot show that Watson was treated differently

from non-minority venire members who the State accepted.

Conclusion

Appellant has wholly failed to show that any of the three jurors that are the

focus of the first three issues on appeal were similarly-situated to non-minority

jurors that were not struck by the State.

(5) Disparate Questioning

Finally, Appellant points to no instances of disparate questioning by the

State. Cf. Miller-El, 545 U.S. at 256–57 (prosecutors used a graphic script when

69

describing the death penalty to African-American jurors who were ambivalent to

the death penalty more often than with white jurors who also were ambivalent).

Nor is any disparate questioning apparent in the record.

Conclusion

Appellant has not established by a preponderance of the evidence that the

State‘s exercise of its peremptory challenges against three African-Americans was

the product of racial discrimination. Appellant has not shown that the State‘s

explanations did not apply equally to non-minority venire members that the State

did not challenge, that the State directed questions expressly designed to elicit

grounds for peremptory challenges disproportionately, or that a formal policy

excludes minorities from jury service. The record before this Court supports the

trial court‘s resolution of the fact question of pretext. Consequently, the trial court

did not err in denying Appellant‘s Batson challenges against prospective jurors

Mitchell, Horsley and Watson. See Watkins, 245 S.W.3d at 456–57.

Issues 1 through 3 should be overruled.

STATE’S RESPONSE TO ISSUE 4: THE TRIAL COURT DID NOT ERR IN DISMISSING

JOHN BIGLEY9 FROM THE JURY PANEL.

In Issue 4, the Appellant argues that the trial court abused its discretion by

dismissing Juror John Bigley from the jury because the court did not fully develop

9

While Appellant refers to John Bigley as Juror Number 4, the record reflects that Bigley was

actually Juror Number 6. (RR53: 32, 39).

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the issue of whether Bigley‘s emotional state made him unfit and unable to

continue as a juror under Article 36.29(b). (Appellant‘s Brief at pp. 66–70).

Pertinent Facts

The record reflects that Bigley filled out the juror questionnaire on March

22, 2013. (RR29: 74). At that time, Bigley stated that he worked as an independent

consultant on business development for start-up tech companies. (Juror

Questionnaire). On June 6, 2013, Bigley was called for individual voir dire.

(RR29: 74–155). Bigley noted that he had taken a job with a software firm called

In Continuum. (RR29: 82; RR56: 14; CR2: 314). Bigley explained that he was the

channel manager for Microsoft and was scheduled to go to training in early

September, but because this was a new job, other things could come up. (RR29:

82). Bigley also expressed concern about putting too many demands on his new

employer. (RR29: 82). Bigley stated that he was told that the trial would be over

by the first of September. (RR29: 82). During his voir dire, the State informed

Bigley that the trial had a firm start date of August 19, 2013. (RR29: 83–84).

Bigley stated that he ―should be‖ available on August 19th, and the last two weeks

of August. (RR29: 83).

On July 5, 2013, Bigley was selected as juror number six. (RR53: 39). On

August 8, 2013, Appellant filed his first motion for continuance. (CR2: 221–79).

On August 20, 2013, the trial court granted the motion and reset the trial for

71

November 4, 2013. (CR2: 241). Following the continuance, the court coordinator

contacted the jurors, and of those, only Bigley indicated that he would not be

available on November 4, 2013 due to a conflict with work. (RR56: 6, 12–13).

On August 29, 2013, a hearing was held pursuant to Article 36.29(b) of the

Code of Criminal Procedure to determine whether Bigley should be dismissed

from the jury. (RR56: 5). The trial judge noted that he had called Bigley to discuss

the situation, and Bigley was adamant that due to his work situation he did not

believe he could be fair and impartial to both sides and carefully weigh the

evidence because his mind would be elsewhere. (RR56: 6).

The judge stated that he contacted Bigley‘s boss, Philip Hyde, located in the

Netherlands, via email. (RR56: 7). The email exchange was admitted for purposes

of the hearing. (RR56: 7; CR2: 313–17). Hyde informed the court that he

understood the importance of jury service, but explained that Bigley was vital to

the fledgling software company. (CR2: 314). Hyde explained that Bigley was the

company‘s only employee located in the United States and was responsible for

developing and managing strategic relationships with IBM, Microsoft, and NEC.

(RR56: 8; CR2: 314). Hyde further explained that the company planned to expand

more aggressively into the United States in 2014. (CR: 314). Therefore, Bigley

would be vital during the fourth quarter of 2013, and ―taking him out of the loop‖

72

during the relevant two week period in November would be a ―serious detriment‖

to the business.‖ (CR: 314).

At the hearing, Bigley testified that he would be distracted during the trial

because he would be thinking about the work he would need to do in the mornings

and evenings before and after court each day. (RR56: 14–15). Bigley explained:

―So I will be thinking of other things while I‘m – you know, if I‘m – I have to

admit to you, I will probably be drifting a little bit.‖ (RR56: 14–15). After Bigley

provided further details about his job and his duties, the following exchange

occurred:

THE COURT: Let me ask you this, Mr. Bigley. Is it fair to say

that because of your emotional state, you‘re

concerned that you would not be attentive during

the trial?

BIGLEY: That‘s correct.

(RR56: 18). Bigley stated that ―if push came to shove, I would be here, but I don‘t

want to be here under a cloud.‖ (RR56: 24). On September 6, 2013, the trial court

entered an order dismissing Bigley and replaced him with first alternate Sheila

Justice. (CR3: 108).

Applicable Law

Article 36.29(b) of the Code of Criminal Procedure provides:

If alternate jurors have been selected in a capital case in which the

state seeks the death penalty and a juror dies or becomes disabled

from sitting at any time before the charge of the court is read to the

73

jury, the alternate juror whose name was called first under Article

35.26 of this code shall replace the dead or disabled juror. Likewise, if

another juror dies or becomes disabled from sitting before the charge

of the court is read to the jury, the other alternate juror shall replace

the second juror to die or become disabled.

Tex. Code Crim. Proc. Ann. art. 36.29 (b) (West 2006).

A disability for purposes of Article 36.29 includes ―any condition that

inhibits a juror from fully and fairly performing the functions of a juror.‖ Routier v.

State, 112 S.W.3d 554, 588 (Tex. Crim. App. 2003); Reyes v. State, 30 S.W.3d

409, 411 (Tex. Crim. App. 2000). This Court has noted that a juror is disabled if

he becomes physically, mentally, or emotionally impaired and can no longer fully

and fairly perform the functions of a juror. Landrum v. State, 788 S.W.2d 577, 579

(Tex. Crim. App. 1990); Carrillo v. State, 597 S.W.2d 769, 771 (Tex. Crim. App.

1980).

Lacking the ability to concentrate due to emotional stress caused by a death

in the family, a family illness, or time pressures of a new job have been held

examples of such disabling conditions. Ramos v. State, 934 S.W.2d 358, 369 (Tex.

Crim. App. 1996); see also Owens v. State, 202 S.W.3d 276, 277 (Tex. App.—

Amarillo 2006, pet. ref‘d) (stress of not being able to find child care); Moffett v.

State, 949 S.W.2d 778, 783 (Tex. App.—Beaumont 1997, pet. ref‘d) (stress of

―personal family problems‖); Freeman v. State, 838 S.W.2d 772, 774 (Tex. App.—

Corpus Christi 1992, pet. ref‘d) (stress of being absent from work).

74

Questioning a juror on the record develops a record for the reviewing court

to evaluate whether the trial court properly determined that a juror had a physical,

mental, or emotional condition preventing him from fully and fairly performing the

functions of a juror. Valdez v. State, 952 S.W.2d 622, 624 (Tex. App.—Houston

[14th Dist.] 1997, pet. ref‘d).

The determination as to whether a juror is disabled is within the discretion of

the trial court, and absent an abuse of that discretion, no reversible error will be

found. Routier, 112 S.W.3d at 588; Brooks v. State, 990 S.W.2d 278, 286 (Tex.

Crim. App. 1999). A trial court abuses its discretion when it acts without reference

to guiding rules or principles. Montgomery v. State, 810 S.W.2d 372, 380 (Tex.

Crim. App. 1990). As long as the trial court‘s ruling is within the ―zone of

reasonable disagreement,‖ there is no abuse of discretion. Santellan v. State, 939

S.W.2d 155, 169 (Tex. Crim. App. 1997).

Applicability of Article 36.29 to the Appellant’s Case

Article 36.29 applies once the jury is sworn. Broussard v. State, 910 S.W.2d

952, 957 (Tex. Crim. App. 1995) (citing Williams v. State, 631 S.W.2d 955, 957

(Tex. App.—Austin 1982, no pet.)); Bermea v. State, 188 S.W.3d 337, 339 (Tex.

App.—Tyler 2006, no pet.). While the jury in this case was selected on July 25,

2013, the jury was not sworn until November 4, 2013. (RR53: 31–32, 38–39;

RR60: 35–36). Juror Bigley was excused from service, and replaced by first

75

alternate Sheila Justice, on September 6, 2013, prior to the time the jury was

sworn. (CR3: 108; RR53: 32, 39). Accordingly, Article 36.29 was not applicable

to the Appellant‘s case. The Appellant, however, does not challenge the

applicability of the statute; rather, he challenges the trial court‘s dismissal of

Bigley because the court did not delve deeply enough into Bigley‘s emotional state

under Article 36.29.

Nevertheless, this Court has upheld the application of Article 36.29 by a trial

court faced with the same situation as the one presented in this case. In Broussard,

the trial court excused a juror after the jury was selected, but before the jury was

sworn, finding that he was disabled due to work related pressure. Broussard, 910

S.W.2d at 957. In so doing, the trial court relied on Article 36.29(b) and replaced

the excused juror with an alternate juror. Id. On appeal, the defendant argued that

the trial court had erred in applying Article 36.29 and should not have replaced the

excused juror with the alternate; instead, the trial court should have chosen a

replacement from the jurors remaining on the original panel list. Id. at 957. This

Court denied the defendant‘s challenge, explaining:

Faced with the need to complete the jury, and having no specific

statutory directive, the trial court chose an acceptable option by

replacing the disabled venireman with a venireman who had already

been qualified and accepted by both parties. We find no error in the

court‘s action.

76

Id. at 958. This Court further held that even if the trial court had erred, any error in

replacing the juror with the first alternate was harmless, reasoning that had the trial

court waited until the jury was sworn, the trial court would have been bound by

Article 36.29(b) and would have been required to replace the disabled juror with

the first alternate. Id.

In this case, the trial court was faced with the same situation. Bigley

became unable to serve after the jury was selected but before it was sworn;

accordingly, the trial court‘s application of Article 36.29(b) was appropriate under

the circumstances. See also Bermea, 188 S.W.3d at 339.

Application

The trial court‘s determination that Juror Bigley‘s emotional state had

rendered him unable to serve as a juror, was soundly within its discretion. The trial

court fully developed the issue of whether Bigley‘s work concerns would prevent

him from fulfilling his duties as a juror. Here, not only did the trial court contact

Bigley and Bigley‘s employer to determine the merit of Bigley‘s claims, but the

trial court also questioned Bigley at the hearing and was able to hear Bigley‘s

responses to questioning from both the State and defense.

The record reflects that Bigley had only recently started a new position with

a software company based in the Netherlands, and he was the company‘s only

employee located in the United States. (CR: 314; RR56: 8, 14–15). Bigley was

77

responsible for creating relationships with many large companies, including

Microsoft, and Bigley noted that the fourth quarter of the year was vital to his

work, especially, as his boss explained, due to the company‘s plans to expand into

the United States the following year. (CR: 314; RR56: 14–15). Bigley admitted

that his attention would wander during the trial because he would be focusing on

what he needed to do for work during any breaks in the trial. (RR56: 14–15). The

trial court could have reasonably concluded that Bigley would be preoccupied with

scheduling meetings and making contacts during the court proceedings, and as

such, would not be attentive to the testimony or evidence presented at Appellant‘s

trial.

The trial court was in the best position to observe and evaluate Bigley‘s

answers to the questions posed to him and his demeanor during the proceedings.

Based on his observations, the judge determined that Bigley was disabled due to

his preoccupation with work concerns, which adversely affected his emotional

state, and would inhibit him from fully and fairly performing the functions of a

juror. See Routier, 112 S.W.3d at 588; Reyes, 30 S.W.3d at 411; Freeman, 838

S.W.2d at 774. Nothing in the record suggests that this determination was an

abuse of discretion.

Moreover, even if the trial court erred in determining that Bigley was

disabled, the error was harmless. The alleged error involved the application of a

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statutory scheme and is non-constitutional error. Whitehead v. State, 437 S.W.3d

547, 556 (Tex. App.—Texarkana 2014, pet. ref‘d), Ponce v. State, 68 S.W.3d 718,

721–22 (Tex. App.—Houston [14th Dist.] 2001, no pet.) (citing Jones v. State, 982

S.W.2d 386, 391 (Tex. Crim. App. 1998)). Texas Rule of Appellate Procedure

44.2(b) provides that any non-constitutional ―error, defect, irregularity, or

variance that does not affect substantial rights must be disregarded.‖ Tex. R. App.

P. 44.2(b).

A defendant is not harmed by a trial court‘s error in discharging a juror

where the record shows the alternate juror seated in the discharged juror‘s place

was subjected to the same selection process, was properly sworn, heard all of the

evidence, heard the trial court‘s charge, and was seated before

deliberations. Whitehead, 437 S.W.3d at 556; Sneed v. State, 209 S.W.3d 782, 788

(Tex. App.—Texarkana 2006, pet. ref‘d). The record reflects that Shirley Justice

was chosen as the first alternate using the same selection process as Bigley, and

was properly sworn, heard all of the evidence and the charge, and was seated

before deliberations. See Sneed, 209 S.W.3d at 788; Ponce, 68 S.W.3d at 722.

Accordingly, the Appellant has the failed to show that he was harmed by the

dismissal of Bigley and seating of Shirley Justice. Issue 4 should be overruled.

79

STATE’S RESPONSE TO ISSUE 5: THE TRIAL COURT DID NOT ERR IN DENYING THE

APPELLANT’S MOTION TO QUASH THE INDICTMENT.

In Issue 5, Appellant contends that the trial court erred in overruling his

motion to quash the indictment. Appellant argues that the indictment fails to allege

an offense with the degree of certainty necessary to give him notice of the

particular offense with which he was charged. Appellant specifically notes that the

indictment fails to allege the manner and means by which he allegedly committed

the offense of obstruction. (Appellant‘s Brief at pp. 70–72). Appellant‘s

contentions are without merit and this issue should be overruled.

Pertinent Facts

The indictment in this case alleges that the Appellant:

. . . did unlawfully then and there intentionally cause the death of

SHANIA GRAY, an individual, hereinafter called deceased, by

SHOOTING THE DECEASED WITH A FIREARM, A DEADLY

WEAPON, AND BY ASPHYXIATING THE DECEASED, and the

defendant was then and there in the course of committing and

attempting to commit the offense of OBSTRUCTION.

(CR1: 44). Appellant filed a motion to quash the indictment on October 17, 2013.

(CR3: 127–28). In his motion, Appellant argued that the indictment ―fails to

specify the manner and means by which he allegedly committed the offense of

obstruction with sufficient specificity to allow Defendant to defend himself.‖

(CR3: 127). Appellant further asserted that the phrase ―in the course of

committing and attempting to commit the offense of obstruction‖ did not notify

80

him of what part of Section 36.06 of the Penal Code he was ―supposed to have

violated, who was obstructed, or why.‖ (CR3: 127–28). The trial court denied the

Appellant‘s motion following a hearing on October 18, 2013, finding that the

indictment provided sufficient certainty under Article 21.11 of the Code of

Criminal Procedure. (RR58: 6). The trial court also noted that there had been

ample discovery and pleadings to provide the defendant with sufficient notice of

the allegations against him. (RR58: 6–7).

Law and Application

When reviewing a trial court‘s decision to deny a motion to quash an

indictment, the reviewing court applies a de novo standard of review. Lawrence v.

State, 240 S.W.3d 912, 915 (Tex. Crim. App. 2007) (citing State v. Moff, 154

S.W.3d 599, 601 (Tex. Crim. App. 2004)). A defendant must be given notice

before trial of the ―nature and cause‖ of the accusation against him. See U.S.

CONST. amend. VI; Tex. Const. art. I, § 10. The notice must be given with

sufficient clarity and detail to enable the defendant to anticipate the State‘s

evidence and prepare a proper defense to it. See U.S. CONST. amend. VI; Tex.

Const. art. I, § 10; Moff, 154 S.W.3d at 601–02; Garcia v. State, 981 S.W.2d 683,

685 (Tex. Crim. App. 1998).

An indictment must allege all of the facts and circumstances necessary to

establish all material elements of the offense charged in plain and intelligible

81

language. Garcia, 981 S.W.2d 685; Bynum v. State, 767 S.W.2d 769, 779 (Tex.

Crim. App. 1989). ―An indictment or information must by direct and positive

averments allege all of the constituent elements of the offense sought to be

charged.‖ Chance v. State, 563 S.W.2d 812, 814 (Tex. Crim. App. 1978). The

Penal Code defines ―elements of offense‖ as ―(A) the forbidden conduct; (B) the

required culpability; (C) any required result; and (D) the negation of any exception

to the offense.‖ Tex. Penal Code Ann. § 1.07(a)(22) (West Supp. 2014).

In the context of a prosecution for capital murder, this Court has repeatedly

held that an indictment need not allege the constituent elements of the aggravating

feature which elevates a murder to capital murder. See, e.g., Alba v. State, 905

S.W.2d 581, 585 (Tex. Crim. App. 1995) (murder in the course of committing

burglary); Barnes v. State, 876 S.W.2d 316, 323 (Tex. Crim. App. 1994) (same as

Alba); Beathard v. State, 767 S.W.2d 423, 431 (Tex. Crim. App. 1989) (same as

Alba); Hogue v. State, 711 S.W.2d 9, 14 (Tex. Crim. App. 1986) (murder in the

course of committing arson); Hammett v. State, 578 S.W.2d 699, 708 (Tex. Crim.

App. 1979) (murder in the course of committing robbery).

Accordingly, the State was not required to allege the elements of obstruction

in the instant case. Appellant does not provide any authority which excepts the

facts and circumstances of this case from the general rule. Furthermore, as noted

by the trial court at the hearing on the motion to quash, Appellant was on notice of

82

the exact claims against him through the discovery process as well as through the

pleadings filed by the State. (RR58: 5–7).

Because the trial court did not err in denying Appellant‘s motion to quash

the indictment, Issue 5 should be overruled.

STATE’S RESPONSE TO ISSUE 6: THE TRIAL COURT DID NOT ERR BY DENYING THE

APPELLANT’S NOVEMBER 1, 2013 MOTION FOR CONTINUANCE.

In Issue 6, Appellant contends that the trial court erred in denying his

November 1, 2013 motion for continuance. Appellant argues that this error denied

him due process and rendered his counsel ineffective on the issue of mitigation

because his trial counsel were unable to properly investigate new evidence

concerning his childhood sexual abuse. Appellant further argues that this denied

him a fair punishment hearing. (Appellant‘s Brief at pp. 73–74). Appellant‘s

contention lacks merit and should be overruled.

Pertinent Facts

At a pretrial hearing on September 21, 2012, the trial court set the

Appellant‘s trial for April 15, 2013. (RR3: 4–5; RR4: 4–5). On October 8, 2012,

the trial court reset the trial to August 19, 2013 at the request of defense counsel;

no written motion for continuance was filed. (RR6: 6–7). On August 9, 2013, the

Appellant filed his first written motion for continuance. (CR2: 221–79; RR60: 20).

In the motion, Appellant asserted that additional time was needed to prepare

Appellant‘s mitigation case. (CR: 221–79). Specifically, defense counsel noted

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that they were having a diff

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