# Davis, Franklin > Court of Appeals of Texas · August 4, 2015 URL: https://www.frixlaw.com/law-library/cases/4050728 ## Case - **Court:** Court of Appeals of Texas - **Decided:** August 4, 2015 - **Precedential status:** Published - **Opinion:** Opinion - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4050728 ## How later opinions describe it (automated extraction) - concluding that a prosecutor‘s argument that defense counsel was ―going to put himself before twelve citizens of this community and he‘s going to argue that hogwash that you‘ve heard‖ was merely a colorful way of attacking the merits of defense counsel‘s argument - holding ―all these rabbit trails, all these smoke screens that he wants you to hide behind and chase down‖ proper as comment on defendant‘s failure to produce testimony other than his own words - holding that the trial court did not abuse its discretion in admitting crime-scene photographs where they were probative of the crime scene and injuries received by the victim, were necessary in developing the State‘s case, and were not overly gruesome ## Opinion text 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4050728. Public record. Not legal advice.