Thomas, Kenneth Dewayne

AP-77,047

COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS

Transmitted 9/16/2016 9:28:49 AM

Accepted 9/16/2016 10:28:08 AM

September 16, 2016 ABEL ACOSTA

ORAL ARGUMENT IS REQUESTED CLERK

No. AP-77,047

IN THE

COURT OF CRIMINAL APPEALS September 27, 2016

OF TEXAS

KENNETH WAYNE THOMAS,

APPELLANT

V.

THE STATE OF TEXAS,

APPELLEE

On appeal from the 194th Judicial District Court of Dallas County, Texas

In Cause No. F86-85539

STATE’S BRIEF

Counsel of Record:

Susan Hawk Christine Womble

Criminal District Attorney Assistant District Attorney

Messina Madson State Bar No. 24035991

First Assistant Frank Crowley Courts Building

Criminal District Attorney 133 N. Riverfront Blvd., LB-19

Dallas County, Texas Dallas, Texas 75207-4399

(214) 653-3625

(214) 653-3643 fax

CWomble@dallascounty.org

Attorneys for the State of Texas

TABLE OF CONTENTS

Index of Authorities ....................................................................... vii-xviii

Statement Regarding Oral Argument ..................................................... 1

Statement of the Case ............................................................................... 1

Statement of Facts ............................................................................... 1-44

Summary of the Argument ................................................................ 44-49

Argument................................................................................................. 49

State’s Response to Issue Nos. 1-7: ......................................................... 49

THE TRIAL COURT DID NOT ERR IN DENYING APPELLANT’S

BATSON CHALLENGES.

State’s Response to Issue Nos. 9-23: ....................................................... 78

THE TRIAL COURT DID NOT ERR IN DENYING APPELLANT’S

CHALLENGES FOR CAUSE.

State’s Response to Issue Nos. 24-30: ................................................... 140

THE TRIAL COURT DID NOT ERR IN GRANTING THE STATE’S

CHALLENGES FOR CAUSE.

State’s Response to Issue No. 31:.......................................................... 168

THE SUPREME COURT’S DECISION IN HALL V. FLORIDA DID NOT

INVALIDATE THIS COURT’S DECISION IN EX PARTE BRISENO.

ii

State’s Response to Issue Nos. 32-34: ................................................... 178

THE TRIAL COURT DID NOT ERR IN OVERRULING APPELLANT’S

MOTION TO QUASH, HIS MOTION TO RE-QUESTION JURORS, AND

HIS MOTION TO LIMIT THE STATE’S VOIR DIRE.

State’s Response to Issue Nos. 35-36: ................................................... 187

APPELLANT WAS NOT DEPRIVED OF A LAWFULLY CONSTITUTED

JURY.

State’s Response to Issue No. 37:.......................................................... 188

THE TRIAL COURT DID NOT ERR IN DENYING APPELLANT’S

MOTION TO DISQUALIFY THE DISTRICT ATTORNEY’S OFFICE.

State’s Response to Issue No. 38:.......................................................... 195

THE TRIAL COURT PROPERLY OVERRULED APPELLANT’S

MOTION FOR MISTRIAL DURING APPELLANT’S COMPETENCY

TRIAL.

State’s Response to Issue No. 39:.......................................................... 202

APPELLANT’S CLAIM THAT THE TRIAL COURT ERRED IN

OVERRULING HIS OBJECTION DURING THE COMPETENCY TRIAL

IS NOT PROPERLY BEFORE THE COURT.

State’s Response to Issue Nos. 40-41: ................................................... 205

THE EVIDENCE WAS SUFFICIENT TO PROVE APPELLANT’S

COMPETENCY TO STAND TRIAL.

iii

State’s Response to Issue No. 42:.......................................................... 227

THE TRIAL COURT PROPERLY OVERRULED APPELLANT’S

OBJECTION TO DR. PRICE’S TESTIMONY THAT APPELLANT

EXHIBITS TRAITS CONSISTENT WITH ANTI-SOCIAL PERSONALITY

DISORDER.

State’s Response to Issue No. 43:.......................................................... 238

DR. PRICE DID NOT TESTIFY BEFORE THE JURY REGARDING

APPELLANT’S REMORSE.

State’s Response to Issue No. 44:.......................................................... 240

THE TRIAL COURT DID NOT ERR IN ADMITTING A SILHOUETTE OF

A KNIFE AS A DEMONSTRATIVE AID.

State’s Response to Issue No. 45:.......................................................... 247

THE TRIAL COURT PROPERLY ADMITTED THE AUTOPSY

PHOTOGRAPHS. ALTERNATIVELY, ANY ERROR IS HARMLESS.

State’s Response to Issue No. 46:.......................................................... 254

THE TRIAL COURT DID NOT ERR IN OVERRULING APPELLANT’S

OBJECTION TO THE TESTIMONY OF JAMES BELT, SR.

State’s Response to Issue Nos. 47-48: ................................................... 261

APPELLANT IS NOT INTELLECTUALLY DISABLED.

iv

State’s Response to Issue No. 49:.......................................................... 278

THE EVIDENCE IS LEGALLY SUFFICIENT TO SUPPORT THE

JURY’S FINDING THAT APPELLANT IS A FUTURE DANGER.

State’s Response to Issue No. 50:.......................................................... 282

THE TRIAL COURT DID NOT ERR IN DENYING APPELLANT’S

REQUESTED JURY INSTRUCTION.

State’s Response to Issue No. 51:.......................................................... 287

THE TRIAL COURT DID NOT ERR IN DENYING APPELLANT’S

REQUEST THAT THE JURY BE ALLOWED TO ENTER A NON-

UNANIMOUS VERDICT REGARDING THE INTELLECTUAL

DISABILITY SPECIAL ISSUE.

State’s Response to Issue No. 52:.......................................................... 291

THE TRIAL COURT DID NOT ERR IN DENYING APPELLANT’S

REQUEST FOR AN ACCOMPLICE WITNESS INSTRUCTION.

State’s Response to Issue No. 53:.......................................................... 293

THE TRIAL COURT DID NOT ERR IN DENYING APPELLANT’S

REQUEST FOR AN ANTI-PARTIES INSTRUCTION IN THE CHARGE.

State’s Response to Issue No. 54:.......................................................... 295

THE TRIAL COURT DID NOT ERR IN DENYING APPELLANT’S

REQUEST FOR A SECOND COMPETENCY HEARING.

State’s Response to Issue No. 55:.......................................................... 304

APPELLANT’S CLAIM THAT THE EVIDENCE IS INSUFFICIENT TO

SUPPORT HIS CONVICTION FOR CAPITAL MURDER PRESENTS

NOTHING FOR THIS COURT’S REVIEW.

v

State’s Response to Issue Nos. 56-67: ................................................... 305

THE TRIAL COURT PROPERLY DENIED APPELLANT’S

CHALLENGES TO THE DEATH PENALTY STATUTE.

Prayer .................................................................................................... 310

Certificate of Compliance ...................................................................... 311

Certificate of Service ............................................................................. 311

vi

INDEX OF AUTHORITIES

Cases

Adanandus v. State,

866 S.W.2d 210 (Tex. Crim. App. 1993).......................................... 56-57

Almanza v. State,

686 S.W.2d 157 (Tex. Crim. App. 1985) (op. on reh’g) ...................... 286

Apprendi v. New Jersey,

530 U.S. 466 (2000) ............................................................................ 307

Atkins v. Virginia,

536 U.S. 304 (2002) ............................................................................ 170

Baker v. State,

177 S.W.3d 113 (Tex. App.—Houston [1st Dist.] 2005, no pet.) ....... 243

Barber v. State,

757 S.W.2d 359 (Tex. Crim. App. 1988)..................................... 200, 201

Barnes v. State,

876 S.W.2d 316 (Tex. Crim. App. 1994)............................................. 106

Batson v. Kentucky,

476 U.S.79 (1986) ......................................................................... passim

Belyeu v. State,

791 S.W.2d 66 (Tex. Crim. App. 1989) .............................................. 294

Bodde v. State,

568 S.W.2d 344 (Tex. Crim. App. 1978)..................................... 183, 186

Bone v. State,

77 S.W.3d 828 (Tex. Crim. App. 2002) ................................................ 66

vii

Brandon v. State,

599 S.W.2d 567 (Tex. Crim. App. 1979)............................................. 199

Broadnax v. State,

No. AP-76,207, 2011 Tex. Crim. App. Unpub. LEXIS 920 (Tex. Crim.

App. Dec. 14, 2011) (not designated for publication) ..................... 67-68

Butcher v. State,

454 S.W.3d 13 (Tex. Crim. App. 2015) ...................................... 217, 225

Callaway v. State,

594 S.W.2d 440 (Tex. Crim. App. 1980)..................................... 199, 200

Chambers v. State,

866 S.W.2d 9 (Tex. Crim. App. 1993) .................................................. 53

Cherry v. State,

959 So. 2d 702 (Fla. 2007) (per curiam)............................................. 173

Clark v. State,

929 S.W.2d 5 (Tex. Crim. App. 1996) ................................................ 146

Coble v. State,

330 S.W.3d 253 (Tex. Crim. App. 2010)............................................. 205

Colburn v. State,

966 S.W.2d 511 (Tex. Crim. App. 1998)....................................... 80, 145

Coleman v. State,

246 S.W.3d 76 (Tex. Crim. App. 2008) .............................................. 191

Cordova v. State,

733 S.W.2d 175 (Tex. Crim. App. 1987)..................................... 122, 127

Devoe v. State,

354 S.W.3d 457 (Tex. Crim. App. 2011)..................................... 279, 281

viii

Easley v. State,

424 S.W.3d 535 (Tex. Crim. App. 2014)............................................. 183

Easton v. State,

920 S.W.2d 747 (Tex. App.—Houston [1st Dist.] 1996, pet. ref’d) ..... 304

Escamilla v. State,

143 S.W.3d 814 (Tex. Crim. App. 2004)............................... 81, 249, 309

Estrada v. State,

313 S.W.3d 274 (Tex. Crim. App. 2010)............................................. 257

Ex parte Briseno,

135 S.W.3d 1 (Tex. Crim. App. 2004) .......................................... passim

Ex parte Cathey,

451 S.W.3d 1 (Tex. Crim. App. 2014) .........174, 176, 264, 272, 276, 277

Ex parte Hagans,

558 S.W.2d 457 (Tex. Crim. App. 1977)............................................. 199

Ex parte Hearn,

310 S.W.3d 424 (Tex. Crim. App. 2010)..................................... 175, 264

Ex parte Lizcano,

No. WR-68,348-03, 2015 Tex. Crim. App. Unpub. LEXIS 331 (Tex.

Crim. App. Apr. 15, 2015) (Alcala, J., dissenting) (not designated for

publication)......................................................................................... 176

Ex parte Moore,

470 S.W.3d 481 (Tex. Crim. App. 2015), cert. granted in part, 136 S.

Ct. 2407 (2016) ................................................... 174, 175, 178, 263, 264

Ex parte Sosa,

364 S.W.3d 889 (Tex. Crim. App. 2012)............................................. 178

Ex parte Tennard,

960 S.W.2d 57 (Tex. Crim. App. 1997) .............................................. 266

ix

Ex parte Thomas,

No. AP-76,405, 2010 Tex. Crim. App. Unpub. LEXIS 452 (Tex. Crim.

App. Aug. 25, 2010) (not designated for publication) ........................ 305

Ex parte Woods,

296 S.W.3d 587 (Tex. Crim. App. 2009)............................................. 175

Feldman v. State,

71 S.W.3d 738 (Tex. Crim. App. 2002) ............................ 79, 80, 96, 137

Furman v. Georgia,

408 U.S. 238 (1972) ............................................................................ 308

Gallo v. State,

239 S.W.3d 757 (Tex. Crim. App. 2007)............................................. 290

Garcia v. State,

887 S.W.2d 862 (Tex. Crim. App. 1994) 183-84, 193, 232, 240, 292, 294

Gardner v. State,

306 S.W.3d 274 (Tex. Crim. App. 2009)................. 80, 96, 115, 136, 137

Gonzales v. State,

353 S.W.3d 826 (Tex. Crim. App. 2011)............................. 104, 139, 141

Good v. State,

723 S.W.2d 734 (Tex. Crim. App. 1986)............................................... 99

Goodman v. State,

701 S.W.2d 850 (Tex. Crim. App. 1985)...................................... 199-200

Goodwin v. State,

799 S.W.2d 719 (Tex. Crim. App. 1990)..................................... 149, 152

Granados v. State,

85 S.W.3d 217 (Tex. Crim. App. 2002) .............................. 146, 160, 165

x

Gray v. State,

233 S.W.3d 295 (Tex. Crim. App. 2007)............................................. 188

Griffith v. State,

983 S.W.2d 282 (Tex. Crim. App. 1998)........................................ 235-36

Guevara v. State,

97 S.W.3d 579 (Tex. Crim. App. 2003) ...................................... 203, 245

Hall v. Florida,

134 S. Ct. 1986 (2014) .................................................................. passim

Hawkins v. State,

135 S.W.3d 72 (Tex. Crim. App. 2004) .............................................. 198

Hernandez v. New York,

500 U.S. 352 (1991) ........................................................................ 53, 64

Hernandez v. State,

757 S.W.2d 744 (Tex. Crim. App. 1988)............................................. 200

Howard v. State,

153 S.W.3d 382 (Tex. Crim. App. 2004)............................................. 239

Hunter v. State,

243 S.W.3d 664 (Tex. Crim. App. 2007)............................................. 289

In re Allen,

462 S.W.3d 47 (Tex. Crim. App. 2015) .............................................. 174

Johnson v. State,

68 S.W.3d 644 (Tex. Crim. App. 2002) ................................................ 56

Johnson v. State,

429 S.W.3d 13 (Tex. App.—Houston [1st Dist.] 2013, no pet.) .......... 302

Jones v. State,

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

xi

Kelly v. State,

824 S.W.2d 568 (Tex. Crim. App. 1992)............................................. 232

King v. State,

29 S.W.3d 556 (Tex. Crim. App. 2000) ................. 149, 152, 154, 156-59

King v. State,

953 S.W.2d 266 (Tex. Crim. App. 1997)............................................. 279

Ladd v. State,

3 S.W.3d 547 (Tex. Crim. App. 1999) ... 106, 139, 167-68, 198, 253, 278

Landers v. State,

256 S.W.3d 295 (Tex. Crim. App. 2008)..................................... 194, 195

Martinez v. State,

327 S.W.3d 727 (Tex. Crim. App. 2010)........................................ 278-79

Martinez v. State,

899 S.W.2d 655 (Tex. Crim. App. 1994)............................................. 294

Martinez v. State,

924 S.W.2d 693 (Tex. Crim. App. 1996)............................................. 279

Mathis v. State,

67 S.W.3d 918 (Tex. Crim. App. 2002) ................................................ 55

Matlock v. State,

392 S.W.3d 662 (Tex. Crim. App. 2013)..................................... 217, 218

Mendoza v. State,

552 S.W.2d 444 (Tex. Crim. App. 1977)..................................... 182, 185

Meraz v. State,

785 S.W.2d 146 (Tex. Crim. App. 1990)............................................. 218

Miller-El v. Dretke,

545 U.S. 231 (2005) .................................................................. 59, 65, 77

xii

Montgomery v. State,

810 S.W.2d 372 (Tex. Crim. App. 1990)............................................. 231

Morris v. State,

301 S.W.3d 281 (Tex. Crim. App. 2009)............................................. 225

Mosley v. State,

983 S.W.2d 249 (Tex. Crim. App. 1998)........................................ 256-59

Murphy v. Florida,

421 U.S. 794 (1975) ............................................................................ 116

Neal v. State,

256 S.W.3d 264 (Tex. Crim. App. 2008)................................ 261-64, 277

Nenno v. State,

970 S.W.2d 549 (Tex. Crim. App. 1998)............................................. 232

Nieto v. State,

365 S.W.3d 673 (Tex. Crim. App. 2012).......................................... 57-58

Owens v. State,

473 S.W.3d 812 (Tex. Crim. App. 2015)............................................. 199

Payne v. Tennessee,

501 U.S. 808 (1991) ............................................................................ 257

Powell v. State,

898 S.W.2d 821 (Tex. Crim. App. 1994)............................................. 236

Purkett v. Elem,

514 U.S. 765 (1995) .............................................................................. 54

Rachal v. State,

917 S.W.2d 799 (Tex. Crim. App. 1996)............................................. 145

Reed v. Quarterman,

555 F.3d 364 (5th Cir. 2009) .......................................................... 50, 64

xiii

Romero v. State,

800 S.W.2d 539 (Tex. Crim. App. 1990)............................................. 230

Ross v. State,

133 S.W.3d 618 (Tex. Crim. App. 2004)............................................. 300

Sadler v. State,

977 S.W.2d 140 (Tex. Crim. App. 1998)............................................. 141

Salazar v. State,

90 S.W.3d 330 (Tex. Crim. App. 2002) .............................................. 257

Saldano v. State,

232 S.W.3d 77 (Tex. Crim. App. 2007) ....... 80-81, 83, 90, 139, 305, 309

Sanders v. State,

832 S.W.2d 719 (Tex. App.—Austin 1992, no pet.) ................... 304, 305

Santellan v. State,

939 S.W.2d 155 (Tex. Crim. App. 1997)............................................. 252

Scarborough v. State,

54 S.W.3d 419 (Tex. App.—Waco 2001, pet. ref’d) ............................ 193

Shuffield v. State,

189 S.W.3d 782 (Tex. Crim. App. 2006)............................................. 231

Simmons v. State,

622 S.W.2d 111 (Tex. Crim. App. 1981)..................................... 243, 245

Solomon v. State,

49 S.W.3d 356 (Tex. Crim. App. 2001) .............................................. 237

State ex rel. Eidson v. Edwards,

793 S.W.2d 1 (Tex. Crim. App. 1990) ........................................ 191, 192

State ex. rel. Hill v. Pirtle,

887 S.W.2d 921 (Tex. Crim. App. 1994)..................................... 191, 194

xiv

Tamez v. State,

27 S.W.3d 668 (Tex. App.—Waco 2000, pet. ref’d) ............................ 183

Threadgill v. State,

146 S.W.3d 654 (Tex. Crim. App. 2004)....................................... passim

Torres v. State,

116 S.W.3d 208 (Tex. App.—El Paso 2003, no pet.) .................. 243, 244

Turner v. State,

422 S.W.3d 676 (Tex. Crim. App. 2013)..................................... 199, 299

United States v. Figueroa,

618 F.2d 934 (2nd Cir. 1980) .............................................................. 231

Vollbaum v. State,

833 S.W.2d 652 (Tex.App.—Waco 1992, pet. ref'd) ........................... 243

Walder v. State,

85 S.W.3d 824 (Tex. App.—Waco 2002, no pet.)................................ 235

Waldo v. State,

746 S.W.2d 750 (Tex. Crim. App. 1988)............................................. 201

Walters v. State,

247 S.W.3d 204 (Tex. Crim. App. 2007)............................................. 237

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) .............. 185, 230, 246, 253, 286

Williams v. State,

191 S.W.3d 242 (Tex. App.—Austin 2006, no pet.) ........................... 225

Williams v. State,

270 S.W.3d 112 (Tex. Crim. App. 2008)..................................... 171, 290

xv

Witherspoon v. Illinois,

391 U.S. 510 (1968) ............................................................................ 145

Wood v. State,

18 S.W.3d 642 (Tex. Crim. App. 2000) .............................................. 198

Woodward v. Epps,

580 F.3d 318 (5th Cir. 2009) ........................................................... 61-62

Young v. State,

826 S.W.2d 141 (Tex. Crim. App. 1991)............................................... 64

Zamora v. State,

411 S.W.3d 504 (Tex. Crim. App. 2013)............................................. 293

Constitutional Provisions

Tex. Const. art. I.................................................................................... 306

U.S. Const. amend. VIII ............................................................... 170, 306

U.S. Const. amend. XIV ....................................................................... 306

Statutes

Tex. Code Crim. Proc. Ann. art. 35.16(a)(9) (West 2006) ....................... 79

Tex. Code Crim. Proc. Ann. art. 35.16(b) (West 2006) .................... 140-41

Tex. Code Crim. Proc. Ann. art. 35.16(c)(2) (West 2006) ........................ 79

Tex. Code Crim. Proc. Ann. art. 36.14 (West 2007) ...................... 284, 285

Tex. Code Crim. Proc. Ann. art. 37.0711, §3(b)(2)(West Supp. 2015) ... 94,

278

xvi

Tex. Code Crim. Proc. Ann. art. 37.0711, §3(c) (West Supp. 2015) ...... 278

Tex. Code Crim. Proc. Ann. art. 37.0711, §3(e) (West Supp. 2015)....... 94,

306-08

Tex. Code Crim. Proc. Ann. art. 37.0711, §3(f) (West Supp. 2015) . 306-08

Tex. Code Crim. Proc. Ann. art. 37.0711, §3(j) (West Supp. 2015) .......... 1

Tex. Code Crim. Proc. Ann. art. 38.08 (West 2005) ................................ 99

Tex. Code Crim. Proc. Ann. art. 38.14 (West 2005) .............................. 292

Tex. Code Crim. Proc. Ann. art. 46B.003(a) (West 2006) .... 204, 216, 220,

298-99, 301

Tex. Code Crim. Proc. Ann. art. 46B.003(b) (West 2006) ..... 216, 217, 298

Tex. Code Crim. Proc. Ann art. 46B.024(1) (West Supp. 2015) ........... 217

Tex. Health & Safety Code Ann. §591.003(1) (West Supp. 2015) ........ 266

Tex. Health & Safety Code Ann. §591.003(7-a) (West Supp. 2015) .... 170,

263

Tex. Health & Safety Code Ann. §591.003(20) (West Supp. 2015) ...... 264

Tex. Loc. Gov’t Code Ann. §87.013 (West 2008) ................................... 191

Tex. Loc. Gov’t Code Ann. §87.018(a) (West 2008) ............................... 191

Tex. Penal Code Ann. § 19.03(a)(2) (West Supp. 2015) .......................... 93

Rules

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

xvii

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

Tex. R. App. P. 44.2(b) ........................................... 237, 238, 247, 254, 260

Tex. R. Civ. P. 292 ................................................................................. 290

Tex. R. Evid. 103 ........................................................................... 237, 260

Tex. R. Evid. 401 .................................................................................. 203

Tex. R. Evid. 403.................................................................... 231, 245, 257

Tex. R. Evid. 702 ...................................................................... 230-31, 232

Tex. R. Evid. 705(b) ............................................................................... 233

xviii

TO THE HONORABLE COURT OF CRIMINAL APPEALS:

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

Appellant, Kenneth Wayne Thomas.

STATEMENT REGARDING ORAL ARGUMENT

The State requests the opportunity to present oral argument if the

Court grants Appellant’s request to argue.

STATEMENT OF THE CASE

This is an automatic appeal from a sentence of death. See Tex.

Code Crim. Proc. Ann. art. 37.0711, § 3(j) (West Supp. 2015). The trial

court sentenced Appellant to death on July 23, 2014 for the capital

murder of Mildred Finch. (CR:88-89; RR70:84-85).1 Appellant filed his

brief on direct appeal on June 22, 2015. He filed an amended brief on

August 24, 2016. Appellant presents sixty-seven allegations of

reversible error.

STATEMENT OF FACTS

On or about March 16, 1986, Kenneth Wayne Thomas

(hereinafter, “Appellant”), broke into the home of Fred and Mildred

1The State will refer to the Clerk’s Record filed on December 23, 2014 as “CR,” the

Clerk’s Record filed on October 27, 2015 as “CR2,” the Clerk’s Record filed on

November 30, 2015 as “CR3,” the Clerk’s Record filed on March 3, 2016 as “CR4,”

and the Sealed Clerk’s Record as “CR-S.”

1

Finch. Fred and Mildred were home at the time of the burglary and

Appellant stabbed and killed them both.

Fred and Mildred

At the time of their death, Fred and Mildred Finch had been

married for many years. (RR68:221). Fred and Mildred were both in

their mid-60s and they shared a small house on Rose Lane, the home

that they purchased in the 1950s. (RR60:31; RR68:223-25; SX34A).

Mildred, a smart and strong-willed woman with a master’s degree in

math and science, was a Professor of Mathematics at El Centro College.

(RR68:224; SX2). Fred, a World War II veteran and former Tuskegee

airman, was a Harvard-educated lawyer who had worked to integrate

schools and hotels in Dallas. (RR68:221-22; SX1). Fred and Mildred

had one child, a daughter named Molly. (RR68:221). Molly married

James Belt, Jr. (RR68:220-21). Molly and James gave Fred and

Mildred two grandchildren, James III and Melanie. (RR68:226).

On Sunday, March 16, 1986, the Belt family attended the 8:00

a.m. services at their church. (RR68:227). Afterward, Molly planned to

take Mildred to the mall. (RR68:227). James stayed behind at the

church to attend Sunday school. (RR68:227). He would get a ride

2

home with a friend later. (RR68:227). While James was waiting for

his ride, he was notified that he had a phone call. (RR68:227). It was

Melanie. (RR68:226, 228). Melanie said that James needed to come to

Rose Lane immediately. (RR68:228).

When James arrived, Molly, Melanie, and James III were in front

of the house. (RR68:228). A police officer was there. (RR68:228).

James went to the back door and asked whether the officer had been

inside the house. (RR68:228). The officer had not. (RR68:228).

James noticed that the back door was open and Fred’s car was in the

driveway. (RR68:228). At that point, James knew something was

wrong so he went inside the house. (RR68:228). James described the

scene:

I guess I was on my knees or crawling or something, and I

crawled through the kitchen. When I got midway through

the kitchen, at the end of the kitchen, I saw [Mildred]. Oh,

God. She was laying on the floor, and blood was everywhere.

Blood was everywhere: On the floor, on the wall, on the

ceiling. It was everywhere. When I touched her, she was

cold. I felt her pulse. She was dead.

I went into the bedroom. [Fred] was dead. Bed was just

covered with blood. Blood was on the floor, it was on the

wall, it was on the ceiling. It was everywhere.

3

...

In the living room, there was clothes piled up everywhere.

In the bedroom, the drawers had been pulled out. There

were clothes and things on the floor. I could tell that the

house had just been ramshacked (sic).

(RR68:228-29). Fred and Mildred appeared to have been stabbed

multiple times. (RR60:34).

Mildred’s body was found lying in the hallway, up against the

wall. (RR60:40, 65-66, 72-75; RR63:11; SX48-53). Detective Gallagher

testified:

There was blood everywhere. There was blood on the walls.

There were smears on the baseboards. She was wrapped in

some sheets and some blankets, and you could still see

multiple stab wounds all over her. It was a mess.

(RR60:40; SX50, 51). Several feet from her body was “a bloody palm

print or fingerprint on the hallway wall.” (RR60:43).

Fred’s body was found in the bedroom, lying on the floor about five

feet from Mildred. (RR60:40-41, 76; RR63:11; SX42-47). That scene

was described as follows:

Mr. Finch suffered multiple stab wounds. He was almost in

a kneeling-type position on the floor, with his head down on

the floor. There were blankets and everything. Disarray. It

was blood everywhere in there. He had pajamas on, but his

4

pajamas were down around his ankles or his calves. So his

bare buttocks was very obvious to me, as I peered down the

hallway.

(RR60:41). There was blood on the bed, the walls, and the floor.

(RR60:41; RR63:12). There was blood “up and down the hallway, from

the baseboard almost to the ceiling.” (RR60:63).

James tried to determine whether anything had been stolen from

the house. (RR68:230). He saw “a gap in the closet.” (RR68:230). A

number of Fred’s suits were gone as were his shirts, hats and caps.

(RR68:230). Fred’s gold and silver Rolex was also gone. (RR68:231-32).

Dr. Edward McDonough performed an autopsy on Mildred.

(RR61:46-47; SX71-83). Mildred “had extensive sharp-force trauma

over almost all the surfaces of her body. Particularly, above the waist.”

(RR61:54). The total number of sharp-force wounds was “probably more

than 90.” (RR61:54).

Mildred suffered multiple injuries to the head. Dr. McDonough

described the following: a stab-wound to the right side of her chin; a v-

shaped cut to her scalp; a superficial stab wound above her right

eyebrow; a three-inch cut on the back of her scalp; and, two stab wounds

to her right-back shoulder. (RR61:63-65; SX75-76, 79-80). Mildred’s

5

other wounds were grouped based on their location: the head; right-

chest; abdomen; and back. (RR61:66; SX82). There were 20 individual

stab wounds to Mildred’s abdomen. (RR61:67; SX82). Most were

superficial, however, some entered the abdominal cavity. (RR61:67).

There were 17 wounds to Mildred’s back, some of which penetrated her

right chest cavity. (RR61:68-69). There were “about 35 individual

wounds of various widths and depths” to the right side of Mildred’s

body, from her armpit down to her thigh. (RR61:69; SX70A, 83).

“There’s a lot of wounds that are even confluent, where they’re so close

together they actually blend together.” (RR61:71). There were stab

wounds to the left side of Mildred’s body. (RR61:71; SX71). There were

four or five stab wounds to the back of her left upper arm. (RR61:71;

SX81). There were wounds to her right hand. (RR61:72; SX73). There

was a “through and through stab wound of the wrist” on her left arm.

(RR61:72-74; SX74). Dr. McDonough estimated the depth of the stab

wounds as five to six inches deep. (RR61:68). She had defensive

wounds on her hands, wrists, and forearms. (RR61:66).

Many of the stab wounds affected Mildred’s organs. There was a

stab wound to her right lung; her left lung; eleven stab wounds to the

6

liver; her aorta was transected. (RR61:75). Mildred also suffered a

“fairly-significant blunt-force trauma, which consisted of a fracture of

the right humerus.” (RR61:67; SX82). Almost every one of her ribs

was fractured, some in two places. (RR61:67-68). Mildred’s cause of

death was “multiple stab wounds of the torso.” (RR61:74).

Dr. Gilliland performed an autopsy on Fred.2 (RR61:47-48, 51-52;

SX57-70, 70A). Dr. Gilliland documented 21 sharp-force injuries on

Fred. (RR61:58). Fred had a stab wound to the right side of his head

that was about an inch long. (RR61:79, 80; SX58, 65). He suffered five

stab wounds to the left side of his trunk, injuring his left upper lung,

heart, abdomen, liver, stomach and pancreas. (RR61:79-81; SX58, 62).

The approximate depth of these wounds is “up to six inches[.]”

(RR61:80). He suffered ten blunt and sharp-force wounds to his back.

(RR61:80, 82; SX67, 59). These injuries caused damage to Fred’s left

lung and spleen as well as a fracture of the 11th rib. (RR61:80; SX67).

He suffered stab wounds to his arms. (RR61:81; SX64). The medical

examiner also “noted there were several cuts between the buttocks.”

2 Dr. McDonough was present and observed Fred’s autopsy. (RR61:47-48).

7

(RR61:83; SX61). Fred’s cause of death was “multiple stab wounds.”

(RR61:83).

All of Mildred’s and Fred’s wounds are consistent with a single-

edged knife. (RR61:58, 61). All of the wounds could have been inflicted

by a single knife. (RR61:61, 88).

Physical Evidence of the Crime

The Finch home appeared to have been burglarized. (RR60:37,

43). The point-of-entry appeared to be a window. A couple of the

window sills on the front of the house appeared to have been recently

damaged and there were two open windows. (RR60:36, 55-57, 148-50;

RR63:13; SX35, 37, 107-08). The window in the front of the house was

open, but blocked on the inside by a heavy piece of furniture.

(RR60:147, 149, 188; RR63:13; SX108, 110). A bent window screen in

the yard appeared to fit this window. (RR60:36, 56, 144, 182; SX35-37).

A window on the side of the house was also open. (RR60:149, 187;

SX36-37). There was an air conditioning window unit sitting in the

grass nearby. (RR60:36, 145, 150; SX36-37). The cord for the unit

stretched from the unit though the open window to the outlet where it

was still plugged in inside. (RR60:36, 145, 148; SX36-37, 107, 109). On

8

the inside of the house, the curtains were pulled away, consistent with

someone coming through the side window from the outside to the inside.

(RR60:150-51; SX109-10).

The home appeared to have been ransacked. (RR63:12). In the

living room, a stereo, and a cardboard box were stacked up by the front

door. (RR60:39, 179). The box appeared to have been “stacked up for a

purpose.” (RR60:204). Inside the box were some suits and a raincoat.

(RR60:107, 109, 179, 204; SX111). The black raincoat appeared to have

blood on it. (RR60:180, 204).

In the kitchen, there was a bloody rag on the floor near the

refrigerator. (RR60:37; RR63:12; SX41). There was blood on the

handle of the refrigerator. (RR60:38). On the kitchen table, there was

a Saturday-edition of the Sunday March 16th newspaper.3 (RR60:37-

38, 109-10; RR61:197; SX112, 114, 116). The newspaper had blood on

it. (RR60:37-38, 109-10; SX112, 114, 116). The blood appeared to be

an outline of a knife. (RR60:110, 125; SX116). “It looks like there was

3 The Dallas Times Herald newspaper on the table was a “Sunday noon dog

edition[.]” (RR61:197; SX114). This version of the Sunday paper was part of an

edition that would have gone to press in the morning of Saturday, March 15, 1986.

(RR61:197; SX114). It would have been available for sale at various over-the-

counter locations throughout the county “around 8:30, 9:00 o’clock Saturday

morning.” (RR61:197-98).

9

blood on a knife tip and it was wiped off on the newspaper.” (RR60:178,

209; SX112-16).

Police walked around the scene trying to find the murder weapon.

(RR60:118, 197). It was never recovered. (RR60:127-28).

The Investigation

On March 18th, the Crime Stoppers Unit received a tip from Kathy

Johnson. (RR60:83, 85, 122). Kathy knew about the stolen property

and the type of weapon. (RR60:85). She provided Appellant’s name.

(RR60:86). Kathy met with police later in the day and provided

Appellant’s brother’s name, Lonnie Thomas, and advised that Lonnie

knew of the stolen property as well. (RR60:87, 122).

Detectives James Gallagher and Phillip Jones went to 4323

Electra to speak with Lonnie. (RR60:87; RR63:22). Lonnie wasn’t

home, but they spoke with his mother, Shirley Baldwin, and his other

brother, Billy Thomas. (RR63:22). Shirley told Jones that Appellant

admitted to the murders. (RR63:63). Jones requested and was granted

consent to enter the house. (RR63:23). Inside, Jones found a three-piece

black suit, an umbrella, and black-and-white shoes. (RR63:23). He did

not find a bloody knife or bloody clothing. (RR63:24).

10

Later that day, Billy called Jones to let him know that Lonnie had

returned home. (RR63:26). Jones and Gallagher went back to the

house on Electra. (RR63:26). Lonnie agreed to accompany them back

to the station. (RR60:87; RR63:26). Jones testified:

What Lonnie told me, en route from 4323 Electra to the

office, was that when Kenneth woke him up, he had been

stacking property in the house; that he asked him to come

out and help move some of the stuff. He walked outside and

he said, at that point, that the property had been taken out

of the back of a yellow car.

(RR63:54).

At the station, Lonnie provided a written statement implicating

Appellant.4 (RR60:88, 90, 124; RR63:30). Lonnie told police that he

saw Appellant in possession of a bloody weapon. (RR60:127).

Detectives were on their way to return Lonnie back to Electra when

they learned that Lonnie had recently disposed of some of the Finch’s

property at a “makeshift dump” on the 4000 block of Hancock Street.

(RR60:91-95; RR63:31; SX34D, 87-88, 94, 100). Lonnie had not

mentioned Hancock in his statement. (RR63:30). The detectives drove

to the dump site where they recovered several hat boxes, black trash

4Lonnie claimed to be home in bed with his girlfriend, Delores Easter. (RR60:93,

131).

11

bags containing clothing, and Fred’s brown briefcase. (RR60:95-97;

RR63:31; SX87-88, 94-99).

Lonnie was transported back to the station where he gave a

voluntary statement and was arrested. (RR60:98-99; RR63:32-33). This

time, Lonnie said that Kathy Johnson helped him dump the property.

(RR63:32). He claimed that he did not call the police because he “was

afraid that he would be charged or considered a suspect in the case.”

(RR63:49)

Late that night, Appellant was arrested at the house on Electra,

which is about four blocks from the Finch home. (RR60:49, 53, 103;

RR63:35-36; SX34B, 225). Appellant was wearing Fred’s Rolex watch.

(RR60:106; RR63:36-37; SX219-21).

The Hancock Dumpsite

At the Hancock dumpsite, police located a great deal of Fred’s

property, including suitcases, clothing, suits, men’s hats, and hat boxes.

(RR61:97-99, 104-10; SX5-14, 18-21, 23, 86-88, 94-101, 207). Hats and

hat boxes were found under a white sheet. (RR61:100, 102, 104-10;

SX87, 95). A brown hat box was found on top of a couch. (RR61:101;

SX87, 98). Two black garbage bags containing clothing were found

12

near the couch. (RR61:101-03; SX88, 95, 97). There was also a brown

satchel containing men’s dress shirts and a loaded Enfield .38-caliber

revolver in a holster. (RR61:97-98, 103-05, 123; SX84, 85, 87,5 97, 99,

207).

Among the items collected from the dumpsite were: a men’s three-

piece suit (SX23); a grey and red flannel suit (SX25); a grey plaid suit

containing the label “Fred James Finch, Jr” and dated December 10,

1982 (SX27); a grey suit containing the label “Custom Tailored for Fred

Finch” (SX26); a yellow shirt (SX8); a light colored shirt (SX7); a blue

and red plaid shirt (SX12); a blue striped shirt (SX11); a white and blue

shirt (SX9); a gray shirt (SX10); a light-colored plaid shirt (SX6); a blue

patterned shirt (SX13); a blue shirt with a white collar (SX5); a multi-

colored shirt (SX28); a silver patterned shirt (SX17); two Dobbs hats

(SX19-20); a flannel newsies hat (SX23); a brown fur hat (SX101); a blue

hat (SX21); a tweed hat (SX18); a straw hat; (SX14); a pair of brown

gloves (SX93); three pairs of black gloves (SX102-04); a blue striped

scarf (SX29); a brown suede jacket (SX16).6 (RR61:105-20).

5 The gun and holster were released following Appellant’s 1987 trial. (RR61:116;

SX87).

6 The property from the Hancock dumpsite that was introduced into evidence

represents about one-third of the property collected from that site. (RR61:124).

13

Bernard Blackmon7 testified that he worked for the Leonard

Custom Tailoring Company in Cincinnati and the Ripley Shirt

Company in Dallas, selling tailored suits and tailored shirts.

(RR61:190). Blackmon sold Fred custom suits. (RR61:193). He

identified State’s Exhibit 26 as a custom-made suit that he sold Fred.

(RR61:193; SX26). He also ordered custom-tailored shirts for Fred as

well. (RR61:194-95; SX10-3, 17). The cuffs of these shirts are

monogramed with Fred’s initials, FJF. (RR61:195).

Forensic Evidence

Appellant’s fingerprints were found on the inside portion of the

window sill, on the inside of the window screen, and on the air

conditioning unit. (RR60:215-16, 252-57; SX117-24). The bloody palm

and fingerprint found near Mildred’s body also belonged to Appellant.

(RR60:111-14, 171-76, 217, 232-257; SX125-26, 202). Police had no

information suggesting that Appellant knew the Finches or had any

reason to be at their home. (RR60:113-14). Lonnie’s fingerprints did

not match those recovered from the Rose Lane address. (RR60:131).

7Bernard Blackmon was deceased at the time of the 2014 trial. The transcript of

his prior testimony was read into the record. (RR61:188).

14

Appellant’s fingerprints were found on the Knox hat box recovered

from the Hancock Street dumpsite. (RR60:221, 260; SX134, 202).

In 1986, Carolyn VanWinkle performed serological testing on the

following items: the black raincoat (SX111); some pillowcases; black

and white shoes; a bedsheet and mattress pad; Mildred’s clothes; and

the sheets from around Mildred’s body. (RR61:15, 18-19, 21). The

raincoat tested positive for blood. (RR61:22; SX111). It was Fred’s and

Mildred’s blood. (RR61:22, 26; SX111). Further testing of the samples

from the raincoat did not reveal the presence of any foreign blood.

(RR61:28-29). A presumptive test performed on the black-and-white

shoes was positive for blood. (RR61:35-38; SX30). The gold bedsheet

and white mattress pad collected with Mildred’s body both “had a large

quantity of blood and blood soaked into it.” (RR61:38-39). Samples of

the blood corresponded to the Finches. (RR61:39).

A pink and green pillowcase that was received with Fred’s body by

the medical examiner was also tested. (RR61:30-31). “[T]here was

semen identified on the pillowcase.” (RR61:31). “[S]permatozoa were

identified on that stain.” (RR61:33-34). A screening test performed on

15

the anal swab collected during Fred’s autopsy was positive for the

presence of semen. (RR61:32-33, 43). The semen was Fred’s. (RR61:43).

Certain items of evidence were subjected to testing “for handler

DNA or any epithelial cells that may have come off when somebody was

carrying them or maybe wearing them.” (RR61:128, 132-33; SX208-09).

Mildred’s pajama shirt contained human blood. (RR61:137). There

were three available cuttings from the shirt, but only one sample

yielded a genetic profile. (RR61:158; SX210). A sample of blood from

Mildred’s pajama shirt yielded a partial DNA profile, which was

identified as Mildred’s own blood. (RR61:153-55). There were four

available cuttings from Mildred’s pajama pants. (RR61:159; SX210).

One sample yielded a partial profile that matched Mildred. (RR61:159;

SX210). There were six available cuttings from the bedsheet from the

Finch home. (RR61:160; SX210). One sample yielded a full genetic

profile, which was that of Mildred. (RR61:161-62; SX210). Several

partial genetic profiles from the sheet were also a match to Mildred.

(RR61:162-63; SX210). Testing of a hair curler yielded a partial profile

matched to Mildred. (RR61:163; SX210). Testing of a hair curler clip

yielded a partial profile matched to Mildred. (RR61:163; SX210).

16

Three stains from the raincoat did not yield any DNA. (RR61:164;

SX210). One stain from the raincoat, however, matched Mildred’s

DNA. (RR61:164-65; SX210). The cutting from a pillowcase matched

Fred’s DNA profile. (RR61:171-72; SX217).

Angela Fitzwater tested the anal swab from Fred’s rape kit.

(RR61:169; SX218). Both the epithelial cell fraction and the sperm cell

fraction matched Fred’s DNA profile. (RR61:170, 173-74; SX218). DNA

testing from Fred’s right-hand fingernail clippings was also a match to

Fred. (RR61:170; SX218).

The Thomas Family

In March of 1986, Appellant, his mother (Shirley Thomas), his

brother (Lonnie Thomas), his sister (Shirley), and Lonnie’s girlfriend

(Delores Easter) shared a home at 4323 Electra. (RR62:11-13, 28, 30,

73, 81, 118-19). Lonnie and Easter occupied one of the bedrooms in the

house.

On Saturday, March 15, 1986, Lonnie watched wrestling on

television, after which he and Easter went to bed. (RR62:74). Early

the following morning, Appellant woke him up, “bringing in some

clothing and bags and boxes.” (RR62:74). He had “a suitcase, with a

17

pistol in it. He had boxes with hats and clothes, and he had [sic] Rolex

watch on. (RR62:14). Appellant wanted Lonnie to help him bring

everything inside. (RR62:32, 75-76). Appellant put the property on the

living room couch, on the porch and in the back room. (RR62:31).

Included among the property were long-sleeve shirts with initials

embroidered on them. (RR62:15-17). The initials did not correspond

with Appellant’s name. (RR62:15). Appellant claimed that he got the

property as payment for helping a lady “move something out of her

garage.” (RR62:76).

At one point, Appellant went into the bathroom. (RR62:76).

When Appellant came out, Lonnie saw a shirt lying in the bathtub.

(RR62:77). The shirt was covered in blood on the right side from the

wrist to the elbow. (RR62:76-77). Lonnie also saw a bloody knife in

the bedroom. (RR62:78-79). It was a long hunting-type knife.

(RR62:78). It was about six inches long and had a “cream-colored speck

with brown” handle. (RR62:78). Appellant claimed that he had

stabbed a dog. (RR62:13-14, 78).

Appellant showed Lonnie “an old model .38 Breakdown front side”

firearm. (RR62:79). The gun was in a briefcase. (RR62:80). Appellant

18

was wearing “a gold-band watch.” (RR62:80-81; SX221). After he

showed Lonnie the property, Appellant “basically kind of just sat down

and fell asleep.” (RR62:82). When Lonnie woke up the following

morning, Appellant was gone. (RR62:83). The bloody shirt and knife

were also gone. (RR62:83).

That day, Appellant’s other brother, Billy,8 went to the house on

Electra at about noon. (RR62:143). He wanted his mother to pay him

for babysitting his nieces and nephew. (RR62:142-43). At the house,

Billy noticed some big boxes in the bedroom where Lonnie and Kenneth

slept. (RR62:144, 177, 200). He did not see how the boxes got there.

(RR62:177, 200).

On Monday, Appellant met up with his cousin Thomas Penagraph.

(RR62:42, 43). Appellant went over to Thomas’s house, then Appellant,

Thomas, and Thomas’s girlfriend Brenda Jackson all went to the house

on Electra. (RR62:43-44). There, Appellant changed into a black suit.

(RR62:45, 50; SX24). He showed Thomas “[t]he suede brown jacket. A

couple of hats . . . [and] some suits[.]” (RR62:44-45; SX16, 18-19).

Appellant was wearing a watch that was big and looked expensive.

8Billy Thomas was deceased at the time of the 2014 trial. The transcript of his

prior testimony was read into the record. (RR62:140).

19

(RR62:45; SX219-21). Thomas had not seen Appellant with that watch

or that property before. (RR62:45-46, 52, 68). Appellant gave Thomas

one of the jackets and one of the hats. (RR62:46; SX16, 19).

On Tuesday, Lonnie heard on the radio that a lawyer and his wife

had been killed “in the South Dallas area, close to where I lived.”

(RR62:85). That day, Lonnie moved the property from Electra to his

cousin Bobby Roy’s house. (RR62:86, 101). Billy had told Lonnie of a

call that he had received from Kathy, “to get the stuff out of my mom’s

house because my brother had killed some people.” (RR62:87). Later,

Billy called and told Lonnie to get rid of the property because the police

were looking for him. (RR62:87). Lonnie put everything in a sheet

and trash bags and he and Kathy took the property to Hancock.

(RR62:88-89; SX87-88). Afterward, he went back to the house on

Electra. (RR62:90).

The police came and picked Lonnie up and took him to the station

where he gave a statement. (RR62:91, 132-35; SX223). In this

statement Lonnie told Detective Gallagher that he saw Appellant with

the property on Sunday morning. (RR62:92-93). He told them about

the bloody shirt. (RR62:93). He did not say anything about the knife

20

or the gun or about dumping the property on Hancock. (RR62:93, 128-

29). The police were taking Lonnie home when they learned that

someone had seen Lonnie dumping the property. (RR62:93, 122-23).

Lonnie realized that he had to be honest. (RR62:123, 125). On

Hancock, he pointed out the property that he and Kathy had dumped.

(RR62:94). Lonnie was placed under arrest for murder.9 (RR62:94, 96).

He gave a second statement. (RR62:95; SX224). In this statement, he

told police about the bloody knife, the bloody shirt, the pistol, and how

the property moved from Electra to Hancock. (RR62:95, 135; SX224).

After Lonnie’s arrest, Billy started receiving calls from Appellant.

(RR62:156-57). During one call, Appellant said he was coming to the

house to get his clothes. (RR62:158, 187). Appellant also said “[t]hat he

was going to kill us.” (RR62:159). During another call, Appellant said

“[t]hat he was going to kill us all if he didn’t get what he wanted.”

(RR62:160). He wanted “[h]is money and clothes.” (RR62:161). The

threat to kill was directed at Billy and their mother. (RR62:163). Billy

called the police. (RR62:188). He was told to call back if Appellant

went to the house. (RR62:188).

9After Lonnie testified at the trial in 1987, his case was “dismissed for insufficient

evidence.” (RR62:97, 137).

21

That night, Appellant returned to the Electra house. (RR62:164-

65). Appellant and Billy discussed Lonnie and money.10 (RR62:164-65,

205, 207, 216-17). Appellant wanted Billy to give him $8,000.

(RR62:165, 193). Appellant went to the back room, came back, pointed

a gun at Billy’s head and then pulled the trigger.11 (RR62:166, 193-94,

205). He pulled the trigger six times. (RR62:166, 194). Billy told

Appellant that the police had called. (RR62:167). Appellant said that

“he didn’t know what the police were looking for him for unless they

had some money to give him.” (RR62:167). If Billy didn’t give

Appellant his money or clothes, Appellant was going to kill the family.

(RR62:167-68). Appellant was upset. (RR62:170).

Lonnie’s father, Lonnie Burrell,12 went to the house on Electra

that night. (RR62:225). When he arrived, Appellant was walking out.

(RR62:226). Appellant asked where Lonnie was. (RR62:226). Burrell

said Lonnie was probably in jail for something that Appellant did.

10 On direct examination, Billy testified that the encounter with Appellant and the

gun occurred on Tuesday night. On cross-examination, he testified that the

encounter occurred on Monday night. (RR62:197, 205, 207, 209-14). His memory

was refreshed with his prior testimony wherein he testified that the encounter took

place on Tuesday. (RR62:209-15). He eventually testified that “maybe I had the

days mixed up.” (RR62:211).

11 Billy had not previously seen a gun at the house on Electra. (RR62:200-01).

12 Lonnie Burrell was deceased at the time of the 2014 trial. The transcript of his

prior testimony was read into the record. (RR62:220).

22

(RR62:226-27). Appellant told Burrell that Lonnie did not know

anything. (RR62:227). He said that Lonnie was not with him “during

the time.” (RR62:227). Later that evening, coverage of the murders

appeared on the news. (RR62:228). Appellant’s mother asked

Appellant whether he killed them and Appellant said yes. (RR62:164,

169-70, 217-18, 228). He said that “the dead can’t talk and he wasn’t

through yet.” (RR62:164). Appellant said that he was not finished

killing yet. (RR62:229).

Appellant was arrested later that night. (RR62:172, 229).

Appellant’s Criminal History

The State presented evidence of Appellant’s criminal history and

bad behavior while in prison:

On February 18, 1979, an 18-year-old Marvin Lindwood went to

his friend Vicki Calhoun’s house for drinks. (RR63:68-69, 88).

Lindwood and Vicki were sitting around having a good time when

Appellant came over. (RR63:69). Vicki invited him in. (RR63:69). For

the first couple of hours, everything went well but then Appellant tried

to attack Vicki. (RR63:70). In the kitchen “he had her in there up

against the sink. He was trying to pull her clothes off of her.”

23

(RR63:70). Lindwood told Appellant to leave Vicki alone. (RR63:70,

79). He and Appellant started fighting. (RR63:70, 79, 90). “He hit me.

I hit him.” (RR63:70). At some point, Appellant left. (RR63:71).

Lindwood stayed with Vicki to continue drinking and listening to music.

(RR63:71). Later, Lindwood heard someone calling his name outside.

(RR63:71). It was Appellant. (RR63:71).

“When [Lindwood] went to the door, [Appellant] was standing up

out there acting like he wanted to apologize and all that there.”

(RR63:71). He told Lindwood that he knew he was wrong and asked

Lindwood to apologize to Vicki for him. (RR63:71). He said he would

not return. (RR63:71). Appellant got up as if he were going to walk off.

(RR63:71, 87). Lindwood turned to go inside. (RR63:71, 87, 90). The

last thing he remembered was reaching for the screen door. (RR63:71-

73, 90). “That’s when [Appellant] stabbed [him] in the head with that

screwdriver.” (RR63:72). When Lindwood woke up, he was in the

hospital and nearly a month had passed. (RR63:74).

The screwdriver penetrated Lindwood’s brain. (RR63:75).

Lindwood suffered irreversible, permanent brain damage. (RR63:84).

The stabbing caused permanent damage to the left side of his body.

24

(RR63:74-75). Lindwood suffered a loss of mobility to his left side.

(RR63:74).

That same day, Billy, who was living with Appellant, Lonnie, their

sister, and their mother, gave Appellant money to buy beer.

(RR63:111). Appellant did not come back with any beer. (RR63:111,

116-17). Instead, Appellant returned late. (RR63:111). Then, they got

into a fight during which Appellant cut Billy.13 (RR63:112). Appellant

also cut Billy’s friend, who happened to be at the house during the fight.

(RR63:112-13). After the fight with Billy, Appellant went next-door, to

his ex-girlfriend Joyce Brown’s house. (RR63:101-02). When Brown

refused to let him inside, Appellant broke her window. (RR63:102-03).

Appellant was tried for the offense against Lindwood. He was

convicted of aggravated assault with a deadly weapon and was

sentenced to ten years’ confinement in the institutional division of the

Texas Department of Criminal Justice. (RR60:223, 264-65; SX205).

In January of 1983, Michael Ferguson was arrested and jailed

for murder. (RR63:136). He was assigned to a cell with Appellant.

(RR63:137-38). Initially, Appellant was “playing the nice-guy role.”

13 On direct examination, Billy testified that he was cut on his forehead.

(RR63:112). On cross, Billy admitted that it could have been on his chest.

(RR63:115).

25

(RR63:138). Appellant was religious and read scripture. (RR63:138).

Once Ferguson let his guard down, however, Appellant became

aggressive. (RR63:138-39). Appellant “started coming on to me

sexually, of course. Extortion. Wanted to know if I had money and

whatnot.” (RR63:138-39). Appellant was “[d]emanding.” (RR63:139).

He was a “predator.” (RR63:142). Ferguson was transferred out of

Appellant’s tank. (RR63:140-41).

On June 13, 1983, Steven McCarroll was in the Dallas County

Jail, incarcerated on a charge of aggravated robbery. (RR63:150).

McCarroll was assigned to Appellant’s tank. (RR63:150). That day,

McCarroll saw Appellant “raping another inmate.” (RR63:151).

McCarroll was sleeping on the bunk on one side of the cell. (RR63:152-

53). Appellant was on the bunk on the other side with “the sheet up

over the top of the bunk.” (RR63:152). The sheet fell down and

McCarroll saw Appellant on top of the other inmate. (RR63:152). The

inmate was screaming. (RR63:153).

The following day, when McCarroll got out of the shower

Appellant approached him “want[ing] me to suck his dick.” (RR63:154).

McCarroll “tried to get away from him. Ended up with a broke nose and

26

two black eyes.” (RR63:154). “So he was going to try to force me to

suck his dick.” (RR63:154).

On August 25, 1983, then-17-year-old Larry Dean Turner was

incarcerated at the Dallas County Jail on an aggravated robbery

charge. (RR63:163, 165, 173). Appellant befriended Turner. (RR63:168).

At first, Appellant “got [Turner] to wash his clothes for him.”

(RR63:167). Then, he tried to get Turner to be “[h]is kid.” (RR63:167).

“All the big peoples [sic] up there. You had younger people on the tank

with them at that time.” (RR63:168). Appellant wanted Turner to

“[r]ide with him: Be his bitch.” (RR63:168). Turner explained that

meant that Turner was supposed to be Appellant’s “woman. Kid.

Where I do sexual stuff for him, and stuff like that there.” (RR63:168).

Additionally, “If he told me to have sex with people, I have to have sex

with people.” (RR63:169).

Over the course of the four and a half years Appellant was

incarcerated at the Dallas County Jail, he was moved multiple times.

(RR63:181-82). Among the reasons for his moves were: placing in

administrative custody; assaultive towards other inmates; causing

27

trouble in tank; fighting; making sexual threats; unable to get along

with others; and to keep down trouble. (RR63:182; SX228).

Appellant was released from prison on June 1, 1984. (RR63:187;

SX226). He was required to report to his parole officer, Linda Nelson,

on a monthly basis but he failed to do so. (RR63:186, 188). Appellant

was “unstable with his residence” and he “did not maintain stable

employment.” (RR63:192-93). While on parole, Appellant tried to stab

his mother. (RR63:189). He had a parole violation hearing after which

he was ordered to go to a halfway house for six months.14 (RR63:189).

Appellant absconded from the halfway house. (RR63:190).

Records relating to Appellant’s disciplinary incidents in prison

were also admitted. (RR65:36; SX245). While in prison, Appellant

engaged in the following conduct: he created a disturbance by flooding

his cell (twice); he used indecent or vulgar language; he threw his tray

out of his cell; he threatened an officer, telling him, “If you put me on

that list again, I will do something to your ass”; Appellant refused to

obey an order (multiple times); he got into a fistfight with another

14 At the hearing, Appellant’s mother denied that Appellant had assaulted her; she

testified that she wanted him arrested for a few days and she knew she would have

to tell the police something serious. (RR63:196-97). The assault against Appellant’s

mother was reduced to a Class C misdemeanor. (RR63:196).

28

inmate; he threw two glasses of water at an officer, striking him on the

face and chest; he was found in possession of contraband (multiple

times); and, he threatened an officer, telling him, “I’m going to burn

your ass.” (RR65:37-40; SX245).

Appellant’s Case

Appellant’s cousin, Anthony Penagraph, testified that he and

Appellant grew up “over there in Frazier Court.” (RR65:43). It was

difficult there because in that area “you go to the store, you go to school,

you had to fight. And Kenneth was not the type of person that was a

fighting person.” (RR65:44). Anthony testified that Appellant was

picked on and had to be rescued a couple of times. (RR65:47). If

Appellant had to defend himself, however, he would. (RR65:56).

Appellant’s mother worked a lot. (RR66:78). According to several

of Appellant’s cousins, Shirley treated Appellant differently than her

other children. (RR65:51; RR66:80, 129). “[W]hen it came to Kenneth .

. . she didn’t do too much for him. Just to get by.” (RR65:51).

Appellant did not have a father figure growing up. (RR66:77).

According to Anthony, Appellant “was a little slow[.]” (RR65:49).

Appellant made it through school but “they would help you get through

29

those grades.” (RR65:49). His grades were “low.” (RR65:49).

Appellant’s cousin Cynthia Penagraph Rice also believed that Appellant

was slower than others. (RR66:130). She testified that:

We always thought that. Because sometimes it will take

him, like, quite a minute to kind of catch on. He would say,

“What you say?” You know, he was slow.

(RR66:131).

When he was 15, Appellant received a head injury at Fair Park.

(RR65:52; RR66:19). “It was a guy jumped on him out there and hit him

in the head with some object. And he been acting different ever since.”

(RR65:52). After Appellant’s head injury, Appellant “kind of drifted

away a little bit.” (RR66:84). He was “[m]ore quiet.” (RR66:85). After

his head injury, “he seem [sic] to get a little slower.” (RR66:132).

Appellant’s cousin Bobby testified that Appellant never did any

drugs around him. (RR66:90). He had seen him drink beer, however.

(RR66:90).

Rice was surprised when she learned that Appellant was arrested

for the Finch murders. (RR66:135). She testified that Appellant is “not

that type.” (RR66:135). She did not think that Appellant could have

committed the offense by himself. (RR66:135).

30

Rodney Turner is Appellant’s half-brother.15 (RR66:96). Growing

up, Turner had only brief interaction with Appellant. (RR66:96). In

1990, however, he and Appellant reconnected by writing letters when

they were both in prison. (RR66:97). The men encouraged each other

through their letters. (RR66:97). Appellant would include in his letters

citations to scripture for Turner to look up in the Bible. (RR66:106).

When Turner was let out on parole, he visited Appellant in the Dallas

County Jail. (RR66:101-02). During their twice-weekly visits, the men

discussed religion. (RR66:102). Appellant is able to discuss the Bible,

scriptures, “you know - - just helpful things.” (RR66:102). Turner

brought Appellant’s mother to visit him a couple of times. (RR66:103).

She appeared supportive of him during the visits, but “when she got in

the car, was something totally different.” (RR66:103).

Several detention officers who have supervised Appellant in the

Dallas County Jail since he was transferred from prison in October

2010 testified that Appellant does not cause problems in the jail.

(RR67:19-21, 23-24, 41, 50; RR68:22, 25-26, 28). Van Similine testified

15 At the time of his testimony, Turner was incarcerated as the result of a parole

violation on charges of aggravated sexual assault and burglary of a habitation.

(RR66:97-98). Turner admitted that he has ten felony convictions and is a

registered sex offender. (RR66:106).

31

that Appellant “stays to himself. Don’t [sic] cause no [sic] problems.”

(RR67:41). In his cell, Appellant is “[e]ither reading or sleeping.”

(RR67:41). Appellant reads “novels off the law library cart.” (RR67:45).

During Appellant’s recreation time, he goes to the gym and walks or

plays basketball. (RR67:42). Curfey Anderson described Appellant as

“[i]nstitutionalized.” (RR67:24).

Defense expert, James Aiken, a prison consultant, reviewed the

records detailing Appellant’s confinement history. (RR67:67, 74).

According to Aiken, since he has been incarcerated, Appellant has been

on a “predictable scale.” (RR67:83). Appellant has “gone from

disruptive behavior, down, down, down, to compliant behavior[.]”

(RR67:83). Aiken opined that Appellant “can be adequately managed

for an extended period of time, without causing unusual risk to staff,

inmates or the general public.” (RR67:97). If he is placed in general

population, “[h]is vulnerability level will be high. His adjustment level

would be excellent.” (RR67:97).

Appellant’s Psychological Experts

Dr. Jim Hom, a neuropsychologist, evaluated Appellant’ brain

functioning in 1987. (RR65:82, 91). Dr. Hom administered the

32

Halstead-Reitan Neuropsychological Test Battery. (RR65:88). On the

WAIS-II,16 a “measure of intelligence,” Dr. Hom determined that

Appellant’s reading level is at a fourth grade level,17 his spelling below a

third grade level, and math below a third grade level. (RR65:110, 115).

Appellant scored a verbal IQ of 73, a performance IQ of 85, and a full-

scale IQ of 77. (RR65:118). In his report, Dr. Hom noted that, with

regard to Appellant’s low scores, “it is likely that these performances

represent poor education experience.” (RR65:123; DX7).

Appellant performed well on the Tactual Performance Test, “a test

of psychomotor problem solving, incidental memory learning.”

(RR65:132). “This is a very challenging test.” (RR65:133). Appellant

performed well on the Trail Making Test, Part A, a “test of attention

and concentration[.]” (RR65:134). Appellant demonstrated no problems

on tests of vision, hearing, touch, and sensation. (RR65:135).

Appellant’s ability for “inscription” using his left hand was “quite

strong” despite a history of being stabbed on his left arm. (RR65:135;

DX7).

16The current version of this test is the WAIS-IV. (RR65:111).

17Given Appellant’s reading level, the results of two tests were considered invalid:

the Minnesota Multiphasic Personality Inventory (MMPI) and the Cornel Health

Index. (RR65:89-90).

33

Dr. Hom testified that Appellant’s “test results are consistent with

someone who has what I believe is a significant head injury of one sort

or another.” (RR65:102-03). He assessed Appellant’s intelligence in the

“low 70 range” and his academic abilities at the third and fourth grade,

level. (RR65:103). He opined that Appellant has “significant problems

in reasoning and thinking,” and difficulty in sequencing, concentrating,

language and function. (RR65:103-04). He described Appellant’s verbal

memory as “moderately to severely impaired.” (RR65:105). He also

showed “mild motor and sensory difficulties.” (RR65:107). Dr. Hom

conceded that during testing Appellant was, at times, nonchalant and

“[r]eluctant to perform.” (RR65:120, 125, 128; DX7).

Dr. Antoinette McGarrahan, a psychologist specializing in forensic

psychology and neuropsychology, performed a neuropsychological

evaluation of Appellant in 2012. (RR66:15-16). Dr. McGarrahan

administered 30 to 35 tests over the course of two days. (RR66:21). Dr.

McGarrahan measured Appellant’s full-scale IQ at 71. (RR66:23). She

placed this score in “what we used to call ‘mildly mentally retarded’

range to borderline functioning[.]” (RR66:23). She noted that the

interval of Appellant’s IQ is “essentially plus or minus five points,’ thus

34

placing his true score somewhere in the range of 66-76. (RR66:29-30).

She observed “significant deficits in [Appellant’s] academic skills” and

mild to moderate memory impairment. (RR66:23). Based on the

results of her evaluation, Dr. McGarrahan concluded that Appellant is

intellectually disabled.18 (RR66:24).

During the evaluation, Dr. McGarrahan learned that Appellant

was raised in “the projects” and that his family was poor. (RR66:18).

Dr. McGarrahan also pointed out the fact that Appellant’s mother

smoked and drank alcohol while she was pregnant with Appellant.

(RR66:26). And, Appellant was born with the umbilical cord wrapped

around his neck while his mother was in a car on the way to the

hospital. (RR66:26). He was never placed in special education but he

did not learn to drive; he had problem making change; he had difficulty

using a phone book. (RR66:18, 25). He had “very few jobs over his life.”

(RR66:18). Appellant was a loner and had difficulty getting along

with others. (RR66:25). He does not have “a psychiatric history.”

(RR66:19).

18Intellectual disability was previously referred to as mental retardation. At trial,

the terms were used interchangeably.

35

Dr. McGarrahan testified that, consistent with Dr. Hom’s

findings, in both sets of testing, the primary areas in which Appellant

demonstrated impairment are reasoning, logical thinking, planning,

and problem solving. (RR66:33).

On cross-examination, Dr. McGarrahan testified that the history

Appellant gave her “wasn’t quite accurate.” (RR66:36). Appellant told

Dr. McGarrahan that “he had a wonderful childhood; that there were no

problems; that he had great relationships with his family members;

that he did okay in school.” (RR66:36). Dr. McGarrahan conceded that

Appellant is capable of lying to avoid criminal responsibility.

(RR66:53). She acknowledged that when Appellant was interviewed by

a reporter, he said that on the day of the murders he went to church

with his girlfriend in the morning and then had supper at his father’s

house. (RR66:52-53). He also told the reporter that there was no proof

that he committed the murders because the police did not have a

weapon. (RR66:52).

36

Psychiatrist Dr. Jaye Crowder became involved in Appellant’s

case in 1987.19 (RR66:140-42). Back then, Dr. Crowder performed a

mental status exam, conducted background interviews, and reviewed

Appellant’s medical records. (RR66:142). Dr. Crowder was concerned

that Appellant had suffered a traumatic brain injury so he referred him

to Dr. Hom for testing. (RR66:142). Dr. Hom’s testing confirmed the

presence of central nervous system damage. (RR66:144). According to

Dr. Crowder, Appellant saw difficulty with abstract reasoning.

(RR66:145). “So, in other words, it was more difficult for him to assess

the likely consequences of particular behavior.” (RR66:145).

Additionally, “you have typically some impulsiveness and irritability

that goes with this so that people can overreact in an aggressive way[.]”

(RR66:145).

Dr. Crowder examined Appellant on January 24, 2013 and again

on July 3, 2014. (RR66:146, 153). Appellant remembered him from

their 1987 interaction. (RR66:149-50). In the 2013 exam, Dr. Crowder

spent about an hour with Appellant and performed a basic psychiatric

19Dr. Crowder testified to his memory of his 1987 examination. (RR66:151). He no

longer has his notes from that time. (RR66:151). He no longer had the notes from

the interview he conducted with Appellant’s mother and uncle. (RR66:152). Other

than the mother and uncle, Dr. Crowder could not recall who he interviewed.

(RR66:152).

37

interview and a Montreal Cognitive Assessment. (RR66:146, 150). He

concluded that Appellant suffered from “major cognitive disorder due to

traumatic brain damage and intellectual disability.” (RR66:148).

Regarding Appellant’s adaptive functioning, Dr. Crowder opined that

Appellant has difficulty in interaction, trouble with employment, and

did not perform well academically. (RR66:157-58). In Dr. Crowder’s

opinion, the probability of Appellant being a future danger is low.

(RR66:149). He admitted, however, that an absolute prediction of

future danger cannot be made. (RR66:162). And, he conceded that he

testified at Appellant’s prior trial that Appellant “is certainly a danger

if he’s not treated and not put in a structured setting.” (RR66:164).

Dr. Crowder also conceded his prior testimony that Appellant’s alibi –

that he was with his girlfriend between midnight and six in the

morning – was easily refutable and not very believable. (RR66:169).

The State’s Case-in-Rebuttal

Melodye Nelson, a 25-year veteran of TDCJ, testified as an expert

on the prison system in Texas. (RR68:144). She is the senior warden

of two correctional facilities located in the Gatesville area. (RR68:144).

She has previously served as a major at a high-security male prison

38

facility. (RR68:146). “Our majors are what we consider our chiefs of

security. They are the highest-ranking security supervisors that we

have.” (RR68:146). Nelson testified generally about the types of

facilities, number of inmates and guards statewide, and how inmates

are classified within the system. (RR68:144-45).

Inmates in TDCJ are classified “in a custody level that is suitable

for the safety and security of the institution.” (RR68:151). Among the

factors considered are the inmate’s history of incarceration and prior

jail conduct, the length of his sentence, and the inmate’s behavior and

attitude. (RR68:152). General Population 1, or “G1,” includes those

inmates who are considered “minimum custody.” (RR68:153). A G1

may be a trustee, which allows him to live and work outside of the

facility’s perimeter fences. (RR68:153). General Population 2, or “G2,”

is the largest percentage of the general inmate population. (RR68:153).

A G2 may live and work in a dormitory. (RR68:153). A G2 is allowed to

work anywhere inside the secure perimeter. (RR68:163).

General Population 3, or “G3,” includes inmates serving 50 years

or more. (RR68:153). G3s may live in dormitories. (RR68:157). They

are allowed to work, so long as they do not “have access to multiple

39

areas of the facility.” (RR68:158). General Population 4, or “G4,”

includes those inmates who have multiple disciplinary infractions.

(RR68:153). G4s are “housed in cell blocks, two-man cells.”

(RR68:182). They have fewer work opportunities. (RR68:182). General

Population 5, or “G5,” are those inmates who are “chronic-rule

violators[.]” (RR68:153). G5s live on cell blocks and are not allowed

contact visits. (RR68:182). Their ability to purchase from the

commissary is reduced. (RR68:183). Finally, administrative segregation

is “a classification outside of general population.” (RR68:154). These

offenders are “housed singularly . . . [and they] recreate individually[.]”

(RR68:154).

An inmate coming into TDCJ with a life sentence is classified as a

G3 upon arrival. (RR68:155). A capital murderer with a life sentence

will be initially classified and housed with all other G3s. (RR68:157).

A G3 will change classification to a G2 after ten years of incarceration if

he has never taken a hostage or escaped a secure correctional facility.

(RR68:162).

Nelson testified that, on average, there are about 15,000 assaults

in prison each year. (RR68:165). This figure includes inmate-on-

40

inmate assaults as well as inmate-on-staff assaults. (RR68:165). In

prison, murders occur as well. (RR68:166). There have been murders

of inmates, guards, and civilian contractors. (RR68:166).

Dr. Richard Hughes, an educational psychologist, testified that

students in the Dallas Independent School District (DISD) are routinely

administered achievement tests and intelligence tests. (RR68:190).

Dr. Hughes reviewed records of Appellant’s scores on the California

Test of Mental Maturity and the Iowa Test of Educational

Development. (RR68:190, 192-93; SX246-247). Both tests have an

average score of 100 with a standard deviation of 15. (RR68:192).

Because these tests are group-administered, they are less reliable than

an individualized testing experience. (RR68:208).

Appellant was administered the California Test of Mental

Maturity when he was in second grade in May of 1973. (RR68:200).

The California Test of Mental Maturity is “a group-administered

measure of intelligence.” (RR68:198). Appellant scored a 78 language

IQ, a 92 non-language IQ, and an 82 total IQ. (RR68:198).

Appellant was administered the Iowa test in September of 1975.

(RR68:207). This test includes sections on reading, language arts,

41

math, social studies, science, the use of sources,20 and a composite.

(RR68:195). On the reading portion, his score of 91 falls within the

average range. (RR68:196). On the language arts section, he scored a

78, which falls within the borderline range. (RR68:196). Math was

Appellant’s highest score; he scored a 97-98, which is just below the

average score of 100. (RR68:197). On the social studies portion,

Appellant scored an 89-90, which is “one foot in the low-average range.

The other in the average range.” (RR68:197). On the science portion,

Appellant scored an 83. (RR68:197). On the use of sources portion, he

scored a 93. (RR68:197). On the composite portion, he scored at the

88-89 level. (RR68:197).

Dr. Hughes also reviewed Appellant’s grades. Dr. Hughes noted

that “[g]rades are not good reflections of intellectual capacity.”

(RR68:201). Indeed, grades measure only “a student’s ability or

20 Dr. Hughes described the Use of Sources portion as follows:

The Use of Sources is a sub-test designed to see how a student can

utilize sources to pursue answers to problems.

For example, multiple-choice questions might be posed that says in

order to find the capital of the state of Texas, you would look in A, a

dictionary; B, an encyclopedia; C, D, and choices like that, to see if they

can select the correct source to obtain information that they are

pursuing.

(RR68:195).

42

willingness to comply, whether they bring their homework assignment

in on time or whether they push through an extra-credit project or

whether they complete their class work assignment.” (RR68:201).

Grades do not measure cognitive functioning. (RR68:201).

Elementary school children are evaluated using a numerical system,

giving grades of one through four. (RR68:199-200). A one is assigned

for “rapid progress,” a two for “satisfactory progress,” a three for

“acceptable progress,” and a four for “little or no progress.” (RR68:200).

In junior high and high school, students are given grades of A through

F. (RR68:199).

In his elementary years, Appellant received a number of 3s and

4s. (RR68:203). In sixth grade, Appellant received Bs, Cs, and Ds.

(RR68:204). In seventh grade he received Ds and Fs. (RR68:203). In

eighth grade he received all Fs. (RR68:203). When Appellant started

attending Metro North in tenth grade, he received Bs and Cs.

(RR68:203). Appellant was moved to Metro North after his head injury

at Fair Park. (RR68:210). Metro North is “an alternative regular-

education program that was on a special class placement for

handicapped students.” (RR68:204).

43

Appellant’s grades stand in contrast to his test scores, which

reflect an ability to do well in school. (RR68:201-02). Had Appellant

applied himself in school, his grades would have been better.

(RR68:202). There is no evidence in Appellant’s DISD records that he

was ever placed in a special education program. (RR68:207). “The

records from Dallas ISD indicate his education was all offered within

the general education program.” (RR68:207). Notably, Appellant’s

school records “are not consistent with a student that’s mentally

retarded.” (RR68:207).

Forensic psychologist and neuropsychologist, Dr. Randy Price,

testified that Appellant does not meet the definition of intellectually

disabled as that term is described in Special Issue No. One. (RR69:14).

Dr. Price became involved in Appellant’s case in 2003. (RR69:18). Dr.

Price was scheduled to interview Appellant on July 13, 2014, but he was

unable to do so as Appellant refused. (RR69:21-22).

SUMMARY OF THE ARGUMENT

Issues 1-7: The trial court did not err in denying Appellant’s

Batson challenges to the following prospective jurors: Biswas, Tilley,

Moore, Nohe, Figures, McGowan, Prieston, and Barbosa.

44

Issues 9-23: The trial court did not err in denying Appellant’s

challenges for cause to fifteen prospective jurors. He was not denied the

right to a fair and unbiased jury.

Issues 24-30: The trial court did not err in granting the State’s

challenges for cause against the following prospective jurors: Kingery,

Morris, Davila, Hawkins, Kinzie, Flores, and Hogan.

Issue 31: The decision by the United States Supreme Court in

Hall v. Florida, 134 S. Ct. 1986 (2014), did not invalidate this Court’s

decision in Ex parte Briseno.

Issue 32-34: The trial court did not err in denying Appellant’s

request to quash the panel of prospective jurors. The trial court did not

err in denying Appellant’s request to re-question the jurors following

Hall.

Issue 35-36: Appellant was not deprived of a lawfully

constituted jury.

Issue 37: The trial court properly denied Appellant’s Motion to

Disqualify the District Attorney’s Office after Appellant’s former

second-chair counsel, Russell Wilson, accepted a job at the Dallas

County District Attorney’s Office. While it is true that Wilson was

45

disqualified from assisting in the prosecution of Appellant’s case, the

elected district attorney and his other assistants were not.

Issue 38: The trial court properly overruled Appellant’s motion

for mistrial during the competency trial when the prosecutor referred to

the “murder weapon.” Alternatively, any alleged error was cured by the

trial court’s instruction to disregard.

Issue 39: Appellant’s objection to the prosecutor’s question

during the competency trial regarding the 1987 reversal of Appellant’s

punishment is not properly before this Court. Regardless, the same

information was later received elsewhere without objection.

Issue 40-41: The evidence is both legally and factually sufficient

to prove Appellant’s competency to stand trial.

Issue 42: The trial court properly overruled Appellant’s

objection to Dr. Price’s testimony that Appellant exhibits traits

consistent with anti-social personality disorder. Alternatively, any

alleged error is harmless.

Issue 43: Although Dr. Price testified regarding Appellant’s

lack of remorse during a sub rosa hearing, he did not do so before the

jury.

46

Issue 44: The trial court did not err in admitting a silhouette of

a knife as a demonstrative aid. Alternatively, any alleged error is

harmless.

Issue 45: The trial court properly admitted the photographs

from Mildred’s and Fred’s autopsies as they help to explain the nature

and extent of their injuries. Alternatively, any alleged error is

harmless.

Issue 46: The trial court did not err in overruling Appellant’s

objection to the victim-impact testimony from the Finches’ son-in-law,

James Belt, Jr.

Issue 47-48: Appellant failed to prove by a preponderance of the

evidence that he was intellectually disabled. The jury’s answer to the

intellectual disability special issue was not so against the great weight

and preponderance of the evidence so as to be manifestly unjust.

Issue 49: The evidence is legally sufficient to support the jury’s

decision to find that Appellant is a future danger.

Issue 50: The trial court did not err in overruling Appellant’s

requested jury instructions regarding significantly sub-average general

47

intellectual functioning. One of the proffered instructions was

incorrect. The other was a comment on the weight of the evidence.

Issue 51: The trial court did not err in overruling Appellant’s

request that the jury not be required to be unanimous regarding the

intellectual disability special issue. Appellant presents no authority

mandating such an instruction.

Issue 52: The trial court did not err in overruling Appellant’s

request for an instruction in the punishment charge that Lonnie

Thomas was an accomplice witness. He points to no authority that this

instruction is required in a punishment charge.

Issue 53: The trial court did not err in overruling Appellant’s

request for an anti-parties charge. Contrary to the statements in his

brief, the guilt-innocence instruction did not include a parties’

instruction.

Issue 54: The trial court did not abuse its discretion in denying

Appellant’s motion, filed prior to sentencing, for an additional inquiry

into Appellant’s competency to stand trial. Appellant failed to present

evidence of a material change in circumstances suggesting that

Appellant’s mental status had deteriorated.

48

Issue 55: Appellant’s claim that the evidence is insufficient to

support his conviction for capital murder presents nothing for this

Court’s review. Appellant was retried on punishment only. His guilt

was not at issue.

Issues 56-67: The trial court properly denied Appellant’s

challenges to the death penalty. Appellant concedes that this Court has

previously overruled these issues.

ARGUMENT

STATE’S RESPONSE TO ISSUE NOS. 1-7: THE TRIAL COURT DID NOT ERR

IN DENYING APPELLANT’S BATSON CHALLENGES.

In Issues 1 through 7, Appellant contends that the trial court

erred in overruling his objection based on Batson v. Kentucky, 476

U.S.79 (1986), to the State’s use of peremptory challenges on

prospective jurors Neena Biswas, Leon Tilley, Deborah Moore, Pronsak

Nohe, Cassie Figures, Mary McGowan, Artherine Prieston, and Martha

Barbosa. (Appellant’s Brief pp. 34-50). These contentions lack merit

and should be overruled.

Applicable Law

The U.S. Constitution prohibits the use of peremptory challenges

to exclude prospective jurors on the basis of race. See Batson, 476 U.S.

49

at 85; Watkins v. State, 245 S.W.3d 444, 447 (Tex. Crim. App. 2008).

Under Batson, a defendant must first make a prima facie showing that

the prosecution exercised its peremptory challenges on the basis of race.

Reed v. Quarterman, 555 F.3d 364, 368 (5th Cir. 2009). If the defendant

makes that showing, the burden shifts to the prosecutor to present race-

neutral explanations for striking the jurors in question. Id. The court

must then determine whether the defendant has carried his burden of

proving purposeful discrimination. Id.

At the second step of this process, the proponent of the strike need

only tender an explanation that is race-neutral. Watkins, 245 S.W.3d at

447. The ultimate plausibility of that race-neutral explanation is to be

considered as part of the third step of the analysis, in which the trial

court determines whether the opponent of the strike (usually the

defendant) has satisfied his burden of persuasion to establish by a

preponderance of the evidence that the strike was indeed the product of

the proponent’s racial discrimination. Id. Whether the opponent

satisfies his burden of persuasion to show that the proponent’s facially

race-neutral explanation for his strike is pre-textual, not genuine, is a

question of fact for the trial court to resolve in the first instance. Id.

50

This Court should not overturn the trial court’s resolution of the

Batson issue unless it determines that the trial court’s ruling was

clearly erroneous. See Watkins, 245 S.W.3d at 447-48. In assaying the

record for clear error, vel non, this Court should consider the entire

record of voir dire; it need not limit itself to arguments or considerations

that the parties specifically called to the trial court’s attention so long

as those arguments or considerations are manifestly grounded in the

appellate record. Id. at 448. 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

Appellant failed to establish a prima facie case of discrimination

but the issue is moot.

After the competency trial, but before the punishment jury was

sworn, Appellant objected to the composition of the jury under Batson.

(RR59:66). He identified eight minority veniremembers that the State

struck. (RR59:66). The Court did not immediately rule and instead

asked, “What says the State?” (RR59:67). Without requesting a ruling,

51

the State introduced a copy of and read into the record, the Dallas

County District Attorney’s Office policy regarding Batson claims.

(RR59:67-68; SX3Z). The prosecutor then provided a “breakdown [of]

the strikes” to show that the State did not use a disproportionate

number of strikes on the basis of race or gender. (RR59:68-70). At that

point, the State objected “to the Court having found a prima facie case”

and asked for a ruling. (RR59:70-71). The Court stated that it would

“withhold at this moment a ruling on whether the Defense has made a

prima facie case or not and have the State go into [an] explanation of

their strikes.” (RR59:71). The State then explained its strikes.

(RR59:71-76).

At the conclusion of the State’s explanation, the trial court found

that “the strikes made by the State were not based upon the panel

members’ race. They were neutral in that respect, and denies the

Batson.” (RR59:77). The State then requested a ruling regarding its

prior objection that Appellant failed to present a prima facie case.

(RR59:77). The trial court stated that it was “of the opinion that a

prima facie case was not presented by the Defense.” (RR59:77).

52

The issue of whether Appellant established a prima facie case that

the State exercised its peremptory strikes on the basis of race is moot.

“Once a prosecutor has offered a race-neutral explanation for the

peremptory challenges and the trial court has ruled on the ultimate

question of intentional discrimination, the preliminary issue of whether

the defendant had made a prima facie showing becomes moot.”

Hernandez v. New York, 500 U.S. 352, 359 (1991); see also Watkins, 245

S.W.3d at 447. Because the State articulated the reasons for its strikes

and the trial ruled on the ultimate question of purposeful

discrimination, the preliminary issue of whether Appellant established

a prima facie case is moot and not subject to review on appeal. See

Chambers v. State, 866 S.W.2d 9, 23 (Tex. Crim. App. 1993) (stating,

“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”). This Court must therefore 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 447.

53

The State’s race-neutral explanations

At the second step of the Batson process, the prosecutor need

only tender an explanation that is race-neutral on its face. Purkett v.

Elem, 514 U.S. 765, 768 (1995) (indicating the State’s burden here is to

present a facially valid explanation for its strike); Watkins, 245 S.W.3d

at 447. The State satisfied this burden.

Figures, Prieston, Barbosa, Tilley, Moore, Nohe

At the Batson hearing, the State stated that it struck Figures,

Prieston, Barbosa, Tilley, Moore, and Nohe because they ranked

themselves as either a “3” or “4.” (RR59:72-73). The State explained

that it struck all qualified veniremembers who ranked themselves as

either a “3” or a “4.” (RR59:72-73). Question No. 2 on the questionnaire

asked: “With reference to the death penalty, which of the following

statements best represents your feelings?” (Figures, Juror 755, Q. p.1).

A ranking of “3” indicated 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.” (Figures, Juror 755, Q. p.1). A ranking of “4” indicated

the following opinion: “I believe that the death penalty is appropriate

54

in some murder cases, but I could never return a verdict which assessed

the death penalty.” (Figures, Juror 755, Q. p.1).

The State’s reasons were grounded in these jurors’ opinions

about the death penalty and are 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).

Biswas

The State explained that it struck Dr. Neena Biswas, Juror 64, an

Asian female, for a number of reasons. (RR59:73). Biswas

demonstrated concern about being a part of the trial process: she asked

the trial court whether and why it was necessary for Appellant to be

present and she stated that as a physician and healer, she was

uncomfortable dealing with the death penalty. (RR59:73). She stated

that she could not take the oath. (RR59:74). She stated that she would

not follow the law. (RR59:74). Biswas stated that she would require

the State to re-prove guilt and that she would increase the State’s

55

burden of proof. (RR59:74). She stated that she would not be able to

determine credibility but that police officers have more credibility.

(RR59:74). Biswas “had Fifth Amendment issues.” (RR59:74). Biswas

also informed the trial court that she was seeking employment, which

may affect her ability to serve. (RR59:73). These explanations were

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 was race-neutral).

McGowan

The State explained that it struck McGowan due to her stated

belief that “prosecutors are out to get people.” (RR59:75). This

explanation does not reflect an inherently discriminatory intent. See

Johnson v. State, 68 S.W.3d 644, 649-50 (Tex. Crim. App. 2002) (finding

prosecutor’s explanation that a juror was resentful toward law

enforcement was race-neutral).

Additionally, McGowan believed that (1) a difficult childhood

may lead someone to make bad choices to get attention and (2) if

someone commits an offense while on drugs, he should be sent to rehab.

(RR59:75). These explanations are also race-neutral. See Adanandus v.

56

State, 866 S.W.2d 210, 224-25 (Tex. Crim. App. 1993) (finding a

veniremember’s views regarding the role of rehabilitation in

punishment to be a race-neutral explanation for the use of a peremptory

challenge).

Conclusion

The record supports all of the State’s proffered race-neutral

explanations for exercising peremptory strikes against the eight

prospective minority jurors. Therefore, the trial court did not clearly

err in finding that the State satisfied its step-two burden of production

to tender facially race-neutral explanations for its peremptory strikes.

See Watkins, 245 S.W.3d at 451.

Appellant failed to establish by a preponderance of the evidence that

the strikes were the product of purposeful 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, not reasonableness, of the

asserted non-racial motive. Nieto v. State, 365 S.W.3d 673, 676 (Tex.

57

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

some had characteristics potentially favorable to the State’s position on

the death penalty. (Appellant’s Brief pp.35-41). 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

58

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.

Watkins, 245 S.W.3d at 448-49 (relying on Miller-El v. Dretke, 545 U.S.

231, 240-64, 266 (2005)). This Court looks to the collective and

cumulative impact of these non–exclusive factors in determining

whether an inference of racial discrimination is so powerful that it

overcomes the deference given to trial courts. See id. at 449.

An analysis of these factors demonstrates that Appellant’s claim

of purposeful discrimination lacks merit.

1. Jury Shuffle

The jury pool was not shuffled in this case. The parties selected

the group of qualified jurors from a February 21, 2014 special venire.

(RR9). 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

59

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. At the Batson hearing, the trial court admitted a written

copy of the District Attorney’s Batson policy into evidence for record

purposes and the prosecutor read it into the record. (RR59:67-68;

SX3Z).

3. Proportionality of Strikes

Appellant argues that even one racially motivated peremptory

strike violates Batson yet he fails to demonstrate a pattern of

discriminatory strikes. Appellant does not identify the size or racial

makeup of the pool of qualified venire members. He does not analyze

the number of strikes used by either side or how they were used.

Instead, he relies on the jurors’ questionnaires, arguing that certain

State-struck jurors gave answers similar to those who were not struck

by the State. Appellant then argues that the State used 8 of its 14

peremptory strikes to eliminate 57% of the minorities on the qualified

60

prospective jury panel, a statistic with which the State disagrees.

(Appellant’s Brief p. 49).

The data evinces no discriminatory intent by the State. The panel

of qualified venire members consisted of 45 people. Of these, 16 (36%)

were African-American, 23 (51%) were Caucasian, 3 (7%) were

Hispanic, and 3 (7%) were Asian. The State exercised 14 peremptory

strikes. Of those 14 strikes, 5 (36%) were used on African-Americans, 6

(43%) were used on Caucasians, 1 (7%) was used on a Hispanic juror,

and 2 (14%) were used on Asians. Appellant exercised 17 peremptory

strikes. Of his 17 strikes, 6 (35%) were used on African-American

jurors, 9 (53%) were used on Caucasian jurors, and 2 (12%) were used

on Hispanic jurors. The result was a 12-member jury consisting of 3

African-American jurors, 8 Caucasian jurors, and 1 Asian juror, with 2

African-American alternate jurors.

By striking 8 of the 22 possible minority veniremembers, the State

eliminated only 36% of the minorities on the panel, not 57% as

Appellant alleges. Nevertheless, the number of minorities struck by the

State is, by itself, an irrelevant statistic. It gains relevance only by

establishing its correlation to the entire panel. See Woodward v. Epps,

61

580 F.3d 318, 339 (5th Cir. 2009) (holding that the State’s striking 100

percent of the black jurors alone does not support a finding of

discrimination and does not show any disparity in relation to the non-

minority jurors). In Appellant’s case, the correlation shows no

discriminatory intent.

Of the 45 venire members who could conceivably be chosen for the

jury, 22 (49%), were members of a minority. A random selection would

yield either 6 or 7 minority jurors in the 14 jurors selected (12 plus 2

alternates) (or 49% of fourteen, equaling 6.86 jurors). See Watkins, 245

S.W.3d at 451-52 (holding a random selection from a 22% African-

American venire would yield 2 or 3 black jurors because 22% of 12

jurors, plus 1 alternate, was 2.86). This jury panel had 4 minority

jurors and 2 minority alternate jurors. Thus, 49% of the qualified

jurors were minorities and 43% of the 14-person jury were minorities.

This jury had only slightly less than the expected amount of minority

members as would be expected from a random selection of the 45

qualified jurors. Statistical analysis simply fails to show any racial

discrimination.

62

4. Comparative Analysis

Appellant contends on appeal that the prosecutor’s stated reasons

are a pretext for racial discrimination because the minority State-struck

jurors gave responses to certain questions on their questionnaire that

are similar to jurors not struck by the State. (Appellant’s Brief p.42).

Importantly, however, at the Batson hearing, defense counsel failed to

provide any comparative analysis regarding the jurors. (RR59:66, 71,

76). And, counsel asked only one question of the prosecutor: whether

the jurors who ranked themselves as “3s,” “4s,” or “5s” on their

questionnaire were going to be struck without regard to the jurors’

qualifications. (RR59:76). The prosecutor was not questioned any

further regarding his reasons for not striking any similarly-situated

venire members. (RR59:76). As such, the prosecutor had no opportunity

to respond to counsel’s allegations. Appellant should not be permitted

to raise claims of disparate treatment for the first time on appeal. By

failing to properly present this claim at trial, he denied the prosecutor

the opportunity to create a record on the prosecutor’s strategy, and he

denied the trial court an opportunity to rule on the claim. Whether a

prosecutor intended to discriminate on the basis of race is a question of

63

historical fact properly decided in the trial courts. See Hernandez, 500

U.S. at 367-69. State procedural rules demand that allegations of

disparate treatment by the prosecutor be raised in the trial court, so

that they can be properly answered by the State and decided by that

court. See Tex. R. App. P. 33.1(a); Watkins, 245 S.W.3d at 457-58

(Keller, P.J., concurring); Young v. State, 826 S.W.2d 141, 147-49 (Tex.

Crim. App. 1991) (Campbell, J., dissenting).

The State acknowledges this Court’s majority opinion in Young,

that a non-capital defendant is not required to raise a comparative

analysis in the trial court to have evidence of such considered on appeal.

Young, 826 S.W.2d at 145-46. The Fifth Circuit has applied Young to a

capital case and criticized this Court’s inconsistency in its application of

the contemporaneous objection rule to Batson claims in capital cases.

Reed, 555 F.3d at 370.

This Court should explicitly overrule Young. See generally

Watkins, 245 S.W.3d at 457-58 (Keller, P.J., concurring). Its majority—

and the courts that rely on it—view the comparative analysis as merely

an appellate argument that can be fairly addressed for the first time on

appeal. Young, 826 S.W.2d at 146. In truth, it is a factual allegation of

64

unfair treatment between jurors. If properly raised in the trial court,

the prosecution’s response may provide additional facts for the

appellate court to consider when reviewing the Batson ruling. If raised

at trial successfully, the trial court can cure the error before trial even

begins.

If not raised at trial, the prosecutor’s mental process and the trial

judge’s credibility decision concerning the non-strikes are simply

omitted from the record. Jurors are not products of a set of cookie

cutters, and the unexplained decision not to strike a non-minority juror

who shares one trait in common with a minority juror is held against

the State on appellate review. See, e.g., Miller-El, 545 U.S. at 244

(stating, “If, indeed, Fields’s thoughts on rehabilitation did make the

prosecutor uneasy, he should have worried about a number of white

panel members he accepted with no evident reservations.”) (emphasis

added). The prosecutor’s explanation of his voir dire strategy and the

trial court’s ruling on the strategy is critical to a fair appellate review.

At the very least, a prosecutor should enjoy favor on appeal when

the matter is not raised at trial, much like the presumption against a

finding of ineffective assistance of defense counsel. In claims regarding

65

violations of a client’s constitutional right to counsel, this Court has

stated that “counsel should ordinarily be accorded an opportunity to

explain her actions before being condemned as unprofessional and

incompetent.” Bone v. State, 77 S.W.3d 828, 836 (Tex. Crim. App.

2002). A prosecutor’s credibility is the heart of Batson review, and he

should be accorded no less of an opportunity to explain his actions.

This Court should conclude that the comparative analysis is not

preserved for review or, alternatively, presume that the comparative

analysis favors the prosecutor absent affirmative evidence on the

record.

In any event, Appellant has wholly failed to establish that the

potential jurors who are the focus of his Batson challenge were similarly

situated to non-minority potential jurors who were not struck.

Figures, Prieston, Barbosa, Tilley, Moore, Nohe

The record supports the State’s assertion that it struck each and

every qualified prospective juror regardless of race who ranked

him/herself as a “3” or a “4,” on Question 2 of their questionnaire.

(RR59:72-73). This includes the following prospective jurors: Cassie

Figures (Juror 755, an African-American female); Artherine Prieston

66

(Juror 1055, an African-American female); Martha Barbosa (Juror 1095,

a Hispanic female); Jeffrey Nicholson (Juror 281, a Caucasian male);

Kelsey Hooten (Juror 445, a Caucasian female); and, Christen Morris

(Juror 1097, a Caucasian female). (RR59:72; Figures, Juror 755, Q. p.1;

Prieston, Juror 1055, Q. p.1; Barbosa, Juror 1095, Q. p.1; Nicholson,

Juror 281, Q. p.1; Hooten, Juror 445, Q. p.1; Morris Juror 1097, Q. p.1).

The State also struck every person on the qualified-juror panel

that selected number “4.” (RR59:72-73). This includes the following

prospective jurors: Leon Tilley (Juror 126, an African-American male);

Deborah Moore (Juror 225, an African American female); Pornsak Nohe

(Juror 497, an Asian male); Macy Haag (Juror 408, a Caucasian

female); and, Suzanne Morrison (Juror 920, a Caucasian female).

(RR59:73; Tilley, Juror 126, Q. p.1; Moore, Juror 225, Q. p.1; Nohe,

Juror 497, Q. p.1; Haag, Juror 408, Q. p.1; Morrison, Juror 920, Q. p.1).

Appellant points to no evidence to the contrary. He cannot show

disparate treatment of Figures, Prieston, Barbosa, Tilley, Moore, and

Nohe compared to accepted non-minority veniremembers. As such,

Appellant has failed to show that the prosecutor’s explanation was a

pretext for discrimination. See Broadnax v. State, No. AP-76,207, 2011

67

Tex. Crim. App. Unpub. LEXIS 920, at *7-8 (Tex. Crim. App. Dec. 14,

2011) (not designated for publication) (holding no pretext where

prosecutor struck all jurors who believed death penalty should never be

invoked).

Neena Biswas

The State explained that it struck Biswas because she was not a

qualified juror. (RR59:73-74). First, Biswas voiced concerns about

determining punishment without having participated in the

determination regarding Appellant’s guilt or innocence. According to

Biswas, the guilt/innocence portion of trial is the most important part of

the process, not the determination of punishment. Her concerns were so

great that it would affect her ability to take the oath as a juror to follow

the law. The following exchange took place:

[Prosecutor]: Okay. So what I’m hearing from you is that

the Judge may give you a jury instruction and charge that

you are not allowed to consider the Defendant’s guilt or

innocence, because he’s already been found guilty.

[Biswas]: Correct.

[Prosecutor]: What I’m hearing from you is that you could

not follow that law.

68

[Biswas]: Absolutely. I will not actually follow it,

without the evidence, without the data. I wouldn’t do a

good job. I mean, I would need a lot of details. And that is

what I do in my work.

[Prosecutor]: And so in your mind, do you feel, based on

your concern about hearing the facts and circumstances of

the case and not being a part of part of [sic] that guilt-or-

innocence decision, do you feel like you would make the

State prove to you beyond a reasonable doubt again that the

Defendant is guilty of capital murder?

[Biswas]: No, I would not. I will not make a decision.

Because I was not involved in the actual thing, if he was

guilty or not. And I think that is the actual thing. Because,

what comes after the fact is just, oh, how are we going to

deal with the problem? Problem’s already been figured out.

I was not part of that, so I would not be able to decide.

[Prosecutor]: We have to use legal terms here. You said you

could not be able to decide. Does that mean - - the law says

each juror would have to take an oath that they will a true

verdict render, based on the law and the evidence.

Are you saying that you could not take that oath?

[Biswas]: I will not take that oath. Because I was not

part of the actual decision. I could take the oath. But, like I

said, I would prefer not to give a decision “yes” or “no.”

[Prosecutor]: Okay. So you told me both things. So we have

to have affirm [sic] “yes” or “no” that you will not take that

oath or could not take that oath.

69

[Biswas]: I could not take that oath.

(RR14:50-51) (emphasis added). Shortly after the above-mentioned

exchange, Biswas stated that she could take the oath, but the issue of

guilt would remain in the back of her mind. (RR14:54). She stated that

she would have difficulty in following an instruction not to consider

Appellant’s guilt or innocence in answering the special issues.

(RR14:73, 74). The issue of Biswas’ lack of participation in the

guilt/innocence portion of trial was a recurring theme in her responses.

The following exchange took place:

[Prosecutor]: Dr. Biswas, we already talked about, in

Special Issue Number One, that you may hear evidence and

testimony that includes the facts and circumstances of the

offense for which the Defendant was found guilty.

So you already understand that, correct?

[Biswas]: Correct.

[Prosecutor]: But you still say that you would still - - it

would still be stuck in your mind, and it would color your

answers to these questions: Is this person guilty or not

guilty of this offense?

[Biswas]: Correct.

70

(RR14:75-76).

Second, Biswas expressed concern about her ability to answer the

deliberateness special issue because “we don’t know what was going on

in that person’s mind at that time. We don’t know why he took that

action . . . I don’t know why the guilty verdict was achieved.”

(RR14:67). She testified that she would not be able to make credibility

determinations “again, because I was not involved in the guilty or not

guilty verdict, which I think is the main crux of any case.” (RR14:70).

Third, when asked whether she would require the State to prove

Appellant’s guilt beyond a reasonable doubt before she would consider

the special issues Biswas said “Yes.” (RR14:52). But then a short time

later, she said, “I’m not saying you have to prove it again, because it

cost [sic] a lot of money.” (RR14:53). With regard to the future danger

special issue, however, Biswas agreed that she would hold the State to a

higher burden of proof because “[she] was not part of the guilty/not

guilty trial.” (RR14:83).

Fourth, Biswas testified that she did not agree with a criminal

defendant’s Fifth Amendment right not to incriminate himself.

(RR14:86). Initially, she said that if instructed not to consider the fact

71

that Appellant did not testify that she could not follow that instruction.

(RR14:86). Then she stated that she could follow the law, but she did

not agree with it and it would weigh on her mind as she deliberated the

special issues. (RR14:86-87).

Finally, Biswas testified that she would place police officers’

credibility above that of other witnesses. (RR14:88-89). She testified

that she “would give them the benefit of the doubt.” (RR14:89). During

her questioning by the defense, Biswas agreed to follow the law and not

start a police officer at a higher level of certainty. (RR14:108).

On appeal, in support of his argument that the prosecutor’s

explanations are a pretext, Appellant points out that Biswas – like 17

other jurors that the State accepted – ranked herself as a “2” on

Question 2, indicating a belief that “the death penalty is appropriate in

some murder cases, and I could return a verdict in a proper case which

assessed the death penalty.” (Biswas, Juror 64, Q p.2). In truth,

because the State struck all 3s and 4s, the only jurors left for the State

to accept were 2s. Therefore, this argument does nothing to further

Appellant’s claim.

72

The State does not dispute that Biswas’s responses to certain

questions in the questionnaire are the same as those of other accepted

venire members. The questionnaire should not be considered in a

vacuum, however. This is especially true as it pertains to Biswas

because, while she may appear to be a qualified juror on paper, during

testimony, Biswas vacillated on her ability to perform the most basic

duty required of a juror: taking the oath and following the law. As

such, the State had legitimate reason to be concerned about Biswas

sitting as a juror in a capital murder case. Since the trial court denied

the State’s challenge for cause, the State exercised a peremptory

challenge. Notably, the State struck all 9 jurors that it had

unsuccessfully challenged for cause: Biswas (Juror 64, an Asian

female), Leon Tilley (Juror 126, an African-American male), Deborah

Moore (Juror 225, an African-American female), Macy Haag (Juror 408,

a Caucasian female), Pornsak Nohe (Juror 497, an Asian male), Cassie

Figures (Juror 755, an African-American female), Suzanne Morrison

(Juror 920, a Caucasian female), Mary McGowan (Juror 955, an

African-American female), and Artherine Prieston (Juror 1055, an

African-American female).

73

The record supports the genuineness of the State’s explanations

for striking Biswas. Appellant has failed to show that the prosecutor’s

explanation was a pretext for discrimination.

Mary McGowan

The State explained that it struck McGowan because of her bias

against the State and because of her belief in rehabilitation rather than

incarceration, even in cases involving capital murder. During voir dire,

after the prosecutor explained the special issues, he asked McGowan to

elaborate on her response to Question 32, which asks the prospective

juror to write the word that first comes to mind when they think of

certain professions. (McGowan, Juror 955, Q p.6). Regarding

prosecutors, McGowan wrote “they are always out to get a person.”

(McGowan, Juror 955, Q p.6). She affirmed this statement when she

testified that “I feel like - - well, in Texas here, I feel like - - it depends

on the prosecutors. The majority of them - - . . . - - I just feel like they

are out to get that person.” (RR42:25). She continued:

So the prosecutor - - I can understand they have to do their

job, too. Because they’re a prosecutors [sic], that’s their job

to do that. But I think sometimes it’s unfair, and I think

that the prosecutor is actually out to get that person really.

Just my opinion.

74

(RR42:25). Later in the questionnaire, on Question 36F, McGowan

wrote that she “Strongly Agree[d]” with the statement, “The Criminal

Justice System in Dallas County is untrustworthy.” (McGowan, Juror

955, Q p.7).

McGowan also demonstrated a preference for rehabilitation

rather than punishment. On Question 42 of her questionnaire, she

ranked rehabilitation as the most important objective of punishment.

(McGowan, Juror 955, Q p.8). She testified that rehabilitation should

always be the first option in sentencing. (RR42:28). “Then, if they fail

rehab, if they go back again continuously, then make another decision.”

(RR42:28). She continued, “But I just feel like, in some cases, where

somebody do [sic] something bad, commit murder or whatever, I feel

like rehab should be the first thing that should happen.” (RR42:28).

According to McGowan, rehabilitation should be an option even in cases

involving the death penalty. (RR42:29).

On appeal, Appellant argues that the State’s explanations are a

pretext because McGowan’s responses to certain questions on her

questionnaire matched those of other veniremembers who were

accepted by the State. As previously argued, the questionnaire cannot

75

be considered in a vacuum. McGowan (like Biswas and like the 17

jurors the State accepted) ranked herself as a “2” on her questionnaire.

(McGowan, Juror 955, Q p.2). As stated above, this similarity is

insignificant in light of the fact that the only jurors that the State

accepted were 2s. Moreover, the State notes that despite having

ranked herself as a “2,” on Question 36C, McGowan wrote that she

agreed that the death penalty should be abolished. (McGowan, Juror

955, Q p. 7).

The State acknowledges that McGowan answered other questions

similar to jurors that the State accepted: (1) she had no moral,

religious, or personal beliefs that would prevent her from sitting in

judgment of another human being; (2) she had no moral, religious, or

personal beliefs that would prevent her from returning a verdict that

would result in the execution of another human being; (3) she agreed

that life imprisonment or the death penalty are appropriate for someone

guilty of intentional murder committed during the course of a burglary;

(4) she agreed that some crimes call for the death penalty solely because

of their facts and circumstances; (5) she ranked the strength of her

belief in using the death penalty as a “7”; (6) she believed that

76

testimony from a police officer was the same as any other witness; and,

(7) she believed in the principle of “an eye for an eye.” (McGowan, Juror

955, Q p.8). Nevertheless, like Biswas, the fact that McGowan

answered certain questions the same as some accepted jurors does not

change the testimony she gave during voir dire. It was McGowan’s

testimony that set her apart from other jurors and it was that

testimony that caused the State to exercise a strike against her.

(RR59:75-76). The record supports the genuineness of the State’s

explanations for striking McGowan. Appellant has failed to show that

the prosecutor’s explanation was a pretext for discrimination.

Conclusion

Appellant has wholly failed to show that Jurors Figures, Prieston,

Barbosa, Tilley, Moore, Nohe, Biswas, or McGowan were similarly-

situated to non-minority jurors that were not struck by the State.

5. Disparate Questioning

Appellant points to no instances of disparate questioning by the

State. Cf. Miller-El, 545 U.S. at 256-57 (prosecutors used a graphic

script when describing the death penalty to African-American jurors

who were ambivalent to the death penalty more often than with white

77

jurors who also were ambivalent). Nor is any disparate questioning

apparent in the record.

Conclusion

Appellant has not established by a preponderance of the evidence

that the State’s exercise of its peremptory challenges against 8 minority

veniremembers was the product of racial discrimination. Appellant has

not shown that the State’s explanations apply equally to non-minority

venire members that the State did not challenge, that the State directed

questions expressly designed to elicit grounds for peremptory challenges

disproportionately, or that a formal policy excludes minorities from jury

service. The record before this Court supports the trial court’s

resolution of the fact question of pretext. Consequently, the trial court

did not err in denying Appellant’s Batson challenges. See Watkins, 245

S.W.3d at 456-57.

This Court should overrule Appellant’s first eight issues.

STATE’S RESPONSE TO ISSUE NOS. 9-23: THE TRIAL COURT DID NOT ERR

IN DENYING APPELLANT’S CHALLENGES FOR CAUSE.

In Issues 9 through 23, Appellant contends that the trial court

erred in denying his challenges to 15 prospective jurors. In so doing,

Appellant argues, the trial court violated his right to a fair and

78

unbiased jury under the United States Constitution and article

35.16(c)(2) of the Texas Code of Criminal Procedure.

Applicable Law

A prospective juror may be challenged for cause if, among other

reasons, he possesses a bias or prejudice in favor of or against the

defendant or he possesses a bias against an aspect of the law upon

which the defendant is entitled to rely. See Tex. Code Crim. Proc. Ann.

arts. 35.16(a)(9), (c)(2) (West 2006); Threadgill v. State, 146 S.W.3d 654,

667 (Tex. Crim. App. 2004).

Appellant has the burden of establishing that his challenge for

cause is proper. See Feldman v. State. 71 S.W.3d 738, 747 (Tex. Crim.

App. 2002). Before a venire member can be excused for bias, the law

must be explained to him and he must be asked whether he can follow

that law regardless of his personal views. Threadgill, 146 S.W.3d at

667. Appellant does not meet his burden of establishing that his

challenge for cause is proper until he has shown that the prospective

juror understood the requirement of the law and could not overcome his

prejudice well enough to follow it. See Feldman, 71 S.W.3d at 747.

79

When reviewing a trial court’s decision to deny a challenge for

cause, the appellate court looks at the entire record to determine if

there is sufficient evidence to support the ruling. Feldman, 71 S.W.3d

at 744. The appellate court reviews a trial court’s ruling with

“considerable” or “great” deference because the trial judge is in the best

position to evaluate the prospective juror’s demeanor and was present

to observe the juror and listen to his tone of voice. Threadgill, 146

S.W.3d at 667; Saldano v. State, 232 S.W.3d 77, 91 (Tex. Crim. App.

2007). Particular deference is given when the venire member’s answers

are vacillating, unclear, or contradictory. Threadgill, 146 S.W.3d at

667. When the venire member is persistently uncertain about having

the ability to follow the law, the reviewing court defers to the trial court

decision. See Gardner v. State, 306 S.W.3d 274, 295-96 (Tex. Crim. App.

2009). The appellate court reverses a trial court’s ruling on a challenge

for cause “only if a clear abuse of discretion is evident.” Colburn v.

State, 966 S.W.2d 511, 517 (Tex. Crim. App. 1998).

Harm from the erroneous denial of a defense challenge for cause

occurs under the following circumstances: (1) a defendant exercises a

peremptory challenge on a prospective juror whom the trial court

80

erroneously failed to excuse for cause at the defendant’s request, (2) the

defendant uses all of his statutorily-allotted peremptory challenges, and

(3) the trial court denies the defendant’s request for an additional

peremptory challenge to use on another prospective juror whom the

defendant identifies as “objectionable” and who actually sits on the jury.

Saldano, 232 S.W.3d at 91. When all of these conditions are met, the

defendant has been wrongfully deprived of one of his statutory

peremptory challenges in that he was forced to use a peremptory

challenge to remove a prospective juror who should have been removed

for cause. See id. If the defendant received additional peremptory

challenges beyond the fifteen allotted by statute, he must show harm by

proving that the trial court erroneously denied a number of defense

challenges for cause equal to at least one more than the number of

additional peremptory challenges granted. Escamilla v. State, 143

S.W.3d 814, 821 (Tex. Crim. App. 2004).

Analysis

The parties asserted their challenges for cause and peremptory

challenges at the conclusion of each prospective juror’s individual voir

dire. With the exception of Jennifer Wilder, following the trial court’s

81

denial of their challenges for cause, the defense exercised a peremptory

strike against each complained-of veniremember. Appellant exhausted

all fifteen of his statutory peremptory strikes on the following jurors:

Annie Fenster (Juror 36); Rebecca Sands (Juror 46); Dorce Jackson

(Juror 138); David Darden (Juror 186); Delores Sawyer (Juror 270);

Jonathan Henderson (Juror 288); Patricia Withers (Juror 323); Larry

Middleton (Juror 427); Isaac Tschewik (Juror 440); Michael Dawson

(Juror 469); Angela Thorpe-Harris (Juror 495); Christopher Weinzapfel

(Juror 612); Phillip Rapp (Juror 968); Nancy Ramos (Juror 1025); and

Jay Kirby (Juror 1052). (RR13:205-06; RR15:114; RR16:76; RR19:225;

RR20:226; RR22:86; RR26:152, 341; RR27:153; RR28:133; RR32:90:

RR42:71; RR44:20; RR45:68).

Appellant was granted two additional strikes, which he used to

remove Nathan Sosa (Juror 1070) and James Martin (Juror 1190).

(RR46:34; RR50:47). Appellant later asked for, and was denied,

another additional strike to exercise on Jennifer Wilder, whom

Appellant identified as objectionable. (RR52:87). Since Appellant

received two extra peremptory challenges in addition to the fifteen

allotted by statute, he must show that the trial court erroneously denied

82

at least three of his challenges for cause to the other veniremembers

identified in Issues 9 through 23. See, e.g., Saldano, 232 S.W.3d at 93

(noting that Saldano would have to show 3 erroneous denials because

he received two extra peremptory strikes).

Issue 9: Rebecca Sands

Appellant challenged Rebecca Sands for cause because she

believed that “if a person committed something intentionally, that was

a greater state of mind than deliberately[.]” (RR13:133). Appellant

argued that Sands’s definition of intentional and deliberate would then

cause her to automatically answer the deliberateness special issue21

affirmatively. (RR13:133).

Deliberate/Intentional

During the State’s voir dire, the prosecutor explained the

deliberateness special issue. (RR13:90-91). He explained that

“[d]eliberate falls more than intentional, but short of premeditation.”

(RR13:91). Sands stated that she could “see the difference” between

the terms. (RR13:91).

21 For ease of the reader, the State will refer to the special issues as follows: “the

intellectual disability special issue” (Special Issue No. One); “the deliberateness

special issue” (Special Issue No. Two); “the future danger special issue” (Special

Issue No. Three); and, “the mitigation special issue” (Special Issue No. Four).

83

Upon questioning by the defense, Sands tried to articulate what

she, in her mind, understood the difference to be between intentional

and deliberate conduct. (RR13:117-18). She stated, “I guess deliberate,

to me, is more short-term than intentional. It’s like, a knee-jerk

reaction, but you knew what was going to happen.” (RR13:118). The

following exchange then took place:

[Defense Counsel]: Okay. So, in your mind, intentional is a

higher process of thought and deliberate is a little bit more

reactionary?

[Sands]: Yes. I think you can say that.

[Defense Counsel]: I think what you’re saying is, if it has

already been determined that this was done intentionally,

then it certainly was done deliberately.

[Sands]: Yes.

[Defense Counsel]: So if you were instructed that the person

had already been convicted of doing this intentionally, your

answer to Special Issue Number Two would, per your

definition, be automatically “yes” because of the instructions

of the Court?

[Sands]: Yes.

[Defense Counsel]: Okay. That’s what I want to know. A lot

of people feel that way. And there’s nothing wrong with it.

84

Isn’t this cruel, we don’t define these things and then we ask

you to define them?

But if that’s how you feel, that’s - - you’re fine, if that’s your

definition of deliberate, is something less than intentional.

So question number two would be answered “yes” for you,

because the Court’s instructed you that it was already

determined that it was an intentional act?

[Sands]: I would like to see more of the details.

[Defense Counsel]: I understand that. We’re just asking you

about your definitions.

[Sands]: Okay. That’s my definition.

(RR13:118-19). The above-mentioned exchange continued on for several

pages, with defense counsel repeatedly confirming Sands’ view that

“intentional” is a higher state of mind than “deliberate” while

simultaneously reassuring Sands that she was entitled to her opinion.

(RR13:119-24). Even when Sands appeared confused and stated, “I

don’t know where I’m at now[,]” defense counsel did not alleviate her

confusion, but merely stated:

I don’t want to confuse you. It’s just that, that is a strange,

archaic, dinosaur question from back in the day. A lot of

people have that issue. That’s why I’m asking you.

85

If the answer to Special Issue Number Two is “yes” for you, if

it’s an intentional act already, that’s fine. We just need to

know that.

And that’s your answer?

(RR13:120). Sands testified that she would “have to see more evidence”

but defense counsel cut her off, instructing that she was not asking how

Sands would vote, but rather was simply concerned with Sands’

definition of the terms. (RR13:122).

Importantly, at no point during the above-described exchange, did

defense counsel actually instruct Sands regarding the law or do

anything to correct her misunderstanding of the distinction between the

terms. As such, Sands was not subject to a challenge for cause based

on this exchange. See generally Threadgill, 146 S.W.3d at 667

(explaining that, before a prospective juror can be excused for bias, the

law must be explained to him and he must be asked whether he can

follow that law regardless of his personal views).

A review of the entirety of Sands’ voir dire shows that she

understood that there is, in fact, a distinction between the terms

intentional and deliberate. (RR13:89-93, 117-18, 120). Although she

may have confused legal terms when she was questioned by the defense,

86

the record reflects that she would not automatically answer the

deliberateness special issue in the affirmative.

Questionnaire

On appeal, Appellant points to Question 9 on Sands’

questionnaire, which asks, “For what crimes do you think a sentence of

life imprisonment is the proper punishment?” (Sands, Juror 46, Q p.3).

Sands wrote, “NA.” Appellant fails to state why Sands’ response makes

her challengeable. Regardless, Appellant did not challenge Sands based

on this answer at trial; therefore, this complaint is not preserved for

review. See Tex. R. App. P. 33.1(a) (providing that a timely specific trial

objection is prerequisite to presenting a complaint on appellate review).

Regardless, during voir dire, when asked to explain this answer, Sands

testified that “that’s hard to elaborate on, because I don’t know the

crime.” (RR13:112). She then agreed that life imprisonment may be

proper punishment on a murder case. (RR13:112).

Appellant has failed to show that the trial court abused its

discretion in denying his challenge for cause against Sands. Issue 9

should be overruled.

87

Issue 10: Dorce Jackson

Appellant challenged Jackson for cause for the following reasons:

(1) in her questionnaire, she wrote that a life sentence would be

appropriate in cases of self-defense or mental illness; (2) she would

place a burden on the defense to provide evidence in connection with the

mitigation special issue; and, (3) she would increase the burden of proof

on the intellectual disability special issue. (RR15:111-12).

Questionnaire

After questioning concluded, Appellant challenged Jackson for

cause because “in her questionnaire, she indicated that a life sentence

would only be appropriate where a person did not intend to do it or it

was self-defense or had some kind of mental illness.” (RR15:111). This

is a misstatement of Jackson’s answers in her questionnaire. On

Question 9, in response to a question asking “[f]or what crimes do you

think a sentence of life imprisonment is the proper punishment[,]?”

Jackson wrote, “maybe a crime of passion or when murder wasn’t

intended.” (Jackson, Juror 138, Q p.3). Jackson never mentioned self-

defense and she never mentioned mental illness. And, her response did

not indicate that murders involving crimes of passion and lack of intent

88

were the sole offenses that should be eligible for life imprisonment.22

Moreover, during questioning, Jackson testified that she “would agree”

with the statement that “the death penalty may not be appropriate in

some cases[.]” (RR15:40). She testified that she is “open to anything . .

. It just all depends.” (RR15:86).

Burden of Proof – Mitigation

Appellant challenged Jackson for cause on the basis of her

testimony that she would require the defense to present evidence or

convince her that Appellant should receive a life sentence. (RR15:111).

During the State’s voir dire, the mitigation special issue and the fact

that there was no burden of proof on this issue was explained to

Jackson. (RR15:70-76). Jackson indicated that she understood the

issue and responded in the affirmative when asked whether she could

consider mitigating evidence “whether it exists or not[.]” (RR15:81-82).

When she was questioned by the defense, the following exchange took

place:

[Defense Counsel]: Again, my question was: Would you

require the Defense - - this table over here, the Defense - - to

22Defense counsel referenced this question during voir dire, but, because it was in

the middle of a series of questions, Jackson never specifically answered him.

(RR15:86).

89

provide you or convince you that the person should receive a

life sentence instead of a death sentence?

[Jackson]: Would I want you to provide evidence to have a

life sentence instead of death?

[Defense Counsel]: Correct.

[Jackson]: But that’s where I’m confused. Because, based on

all of this - - going through the steps, wouldn’t I basically be

taking that into consideration the whole time?

You’re going to provide evidence and they are, too,

right?

[Defense Counsel]: Well, what I’m saying, on that issue,

nobody has a burden. What I’m asking you is: Would you

need - - in order for you to answer that question, would you

require the Defense to provide you with mitigation evidence

before you could answer Special Issue Number Four?

[Jackson]: Yes.

(RR15:109-10). The defense immediately concluded its questioning.

(RR15:110).

Jackson was not challengeable for cause on the basis of the above-

mentioned exchange. A veniremember is not challengeable for cause

simply because she will place the burden of proof on mitigation on the

defense. Saldano, 232 S.W.3d at 92.

90

Burden of Proof – Intellectual Disability Special Issue

During questioning, defense counsel reminded Jackson that the

defense bears the burden on the intellectual disability special issue.

(RR15:92). He asked Jackson what she thought about the fact that the

burden – preponderance of the evidence – was “a lower burden” than

beyond a reasonable doubt. (RR15:93). Jackson answered, “There

should be a preponderance of the evidence. I should be able to say I’m

clear on that.” (RR15:93). Defense counsel attempted to clarify

Jackson’s definition. The following exchange took place:

[Defense Counsel]: How clear would you want to be?

[Jackson]: Clear enough to say I feel good about it.

[Defense Counsel]: And if it’s more likely than not, is that

enough for you?

Or would you want “I want to be really sure. I want to be

sure beyond a reasonable doubt”?

[Jackson]: I want to be sure.

[Defense Counsel]: And sure, in your mind, does that also fit

into your definition of beyond a reasonable doubt? However

you view it. We can’t define it for you.

91

[Jackson]: Maybe, beyond a reasonable doubt is

preponderance or different. But the same kind of - -

[Defense Counsel]: I’m sorry?

[Jackson]: I said, they’re kind of the same. I want to be

clear either way.

(RR15:93-94). Defense counsel tried to understand whether Jackson’s

need to be “clear” was equivalent to a preponderance of the evidence or

beyond a reasonable doubt. (RR15:93-98). Jackson would not be pinned

down except to say that she would “want to be sure.” (RR15:95). There

is no evidence to suggest that Jackson would increase the burden on the

defense on this issue. Indeed, she testified that she “would want to

understand and be sure, based on whatever the criteria is.” (RR15:97)

(emphasis added).

Appellant has failed to show that the trial court abused its

discretion in denying his challenge for cause against Jackson. Issue 10

should be overruled.

Issue 11: David Darden

Appellant challenged Darden for the following reasons: (1) the

responses in his questionnaire show that Darden had already formed

the opinion that the appropriate punishment in this type of case was

92

the death penalty; and, (2) he believed that if a person was guilty of

capital murder, that person will always be a future danger. (RR16:72-

73).

Questionnaire

After questioning, the defense challenged Darden for cause based

on his responses to two questions on his questionnaire: Question 8 and

Question 11. (Darden, Juror 186, Q.p.3). Question 8 asks jurors “For

what crimes do you think the death penalty is the proper

punishment?” (Darden, Juror 186, Q p.3) (emphasis in original).

Darden wrote, “murder in the commission of crimes.” (Darden, Juror

186, Q p.3). Darden’s response does not reflect a bias against the law

or Appellant. To the contrary, Darden’s response was consistent with

the law. The law provides that the death penalty is available for

intentional murder committed in the course of committing or

attempting to commit certain specified offenses. See Tex. Penal Code

Ann. § 19.03(a)(2) (West Supp. 2015) (capital murder includes

intentional murder “in the course of committing or attempting to

commit kidnapping, burglary, robbery, aggravated sexual assault,

arson, obstruction or retaliation, or terroristic threat”).

93

Question 11 asks jurors whether they agree with the statement

that “‘The death penalty is reserved for those defendants that are such

a threat to society that even incarceration does not remove the

possibility of future violent acts.’” (Darden, Juror 186, Q p.3). Darden

wrote that he agreed with the statement and that “if his/her crimes are

that bad, death is appropriate in my mind.” (Darden, Juror 186, Q p.3).

As above, this response does not reflect a bias against the law or

Appellant and, in fact, was consistent with the law. In a death penalty

case, if the defendant is found guilty, jurors are asked to decide

“whether there is a probability that the defendant would commit

criminal acts of violence that would constitute a continuing threat to

society[.]” Tex. Code Crim. Proc. Ann. art. 37.0711, §3(b)(2) (West

Supp. 2015). Although the wording is slightly different, the statement

in Question 11 is essentially asking jurors whether they agree with the

law. Darden’s response indicated an agreement with – not bias against

– the law.

Future Dangerousness

Appellant also challenged Darden for cause because when he was

asked for “his personal views” regarding the future danger special issue,

94

Darden “indicated . . . once he’s been convinced that the person is guilty

of capital murder . . . and he was convinced that the person would be a

future danger, that he could never answer Special Issue Number Three

in a way that would result in a life sentence.” (RR16:73). This basis

for challenge is not completely clear. If a juror were to find, as counsel’s

challenge suggests, that a person is a “future danger,” then, following

his oath, the juror would answer the future danger special issue in the

affirmative. See Tex. Code Crim. Proc. Ann. art 37.0711(e) (West Supp.

2015). If a juror were to find that a person is a “future danger,” then,

following his oath, the juror would not answer the future danger special

issue in the negative, which would then result in a life sentence.

During the Defense’s voir dire, counsel asked multiple questions

about Darden’s feelings about voting for a convicted capital murderer to

receive a life sentence. (RR16:63-67). At no point, however, did he

explain the law and then ask whether Darden could set aside his

feelings and follow the law. See generally Threadgill, 146 S.W.3d at 667

(explaining that, before a prospective juror can be excused for bias, the

law must be explained to him and he must be asked whether he can

follow that law regardless of his personal views).

95

To the extent that any of Darden’s responses during the defense

voir dire may be interpreted as contradicting his responses during the

State’s voir dire, this Court should defer to the trial court’s resolution of

his responses. See Feldman, 71 S.W.3d at 744. The reviewing court

must give great deference to the trial court’s decision on a challenge for

cause based on the trial judge’s opportunity to observe the venire

member during voir dire. Id. When the record reflects that a prospective

juror vacillated or equivocated on his ability to follow the law, the

reviewing court must defer to the trial judge. Gardner, 306 S.W.3d at

295.

Appellant has failed to show that the trial court abused its

discretion in denying his challenge for cause against Darden. Issue 11

should be overruled.

Issue 12: Delores Sawyer

Appellant challenged Sawyer for cause because, on two occasions,

she testified that in deciding the mitigation special issue, she would

take Appellant’s facial expressions into account. (RR19:224-25).

During the State’s voir dire, in response to a line of questioning

96

regarding her ability to find that a person would not be a future danger,

the following exchange took place:

[Sawyer]: Because, once again, I haven’t heard all the facts.

I believe, if a person shows remorse or some sign of

rehabilitation, there’s a possibility that that may not occur

in future situations.

[Prosecutor]: Okay. Tell me what you mean by “remorse”.

[sic]

[Sawyer]: What I do, I pay a lot [of] attention to their

demeanor, the body language, if they appear to be

somewhat hostile or somewhat combative. You don’t have

to be verbal, as far as being combative or hostile. You can

look at a person’s body language, his or her eye contact. I’m

very good be [sic] reading someone.

I guess, it comes from my law enforcement training in the

past. Because, a lot of times in-law enforcement, you cannot

survive if you are not aware of a potential act or an attack

within the law enforcement environment. Not only do you

have to work in a law enforcement environment, it can

happen on your job. We see this everyday.

What just recently happened in Fort Hood. No one came to

work that day and think [sic] that they’re going to have an

adverse situation to deal with. So it just depends on a lot of

variables and factors. But the individual - - I don’t know

the history. It just kind of depends on what I find out about

that person. It doesn’t have to be verbal. Body language,

like I said. Showing some sign of remorse.

97

(RR19:179-80). During the defense’s voir dire, counsel questioned

Sawyer as follows:

[Defense Counsel]: Let me just ask you this: Do you feel

like that you would need to hear from the Defendant, to find

out if he had remorse for something, in a hypothetical case?

Would you need to hear how that person felt about it, before

you could consider a life sentence?

[Sawyer]: No. Like I said, the facts would have already

been presented. Like I said earlier, I would watch the

Defendant’s body language. He doesn’t have to say

anything. You can tell a lot about a person, whether or not

he is feeling remorse, by his body language. If you’re in a

court of law and the Defendant (demonstrating). [sic] If

you’re in a court of law and the Defendant is, like, just so

distraught by what has occurred - -

[Defense Counsel]: Okay. All right. So you can read ‘em,

kind of.

[Sawyer]: Yes.

[Defense Counsel]: Have you been able to read the

Defendant in this courtroom today?

[Sawyer]: Well, when I came in here, I was focusing over

here. I saw him. Now, I’m looking at him now. He seems

calm and - - I don’t want to use - - well, tranquil means the

same as calm. But he seems just calm. Not agitated, not - -

he doesn’t appear hostile to me.

98

[Defense Counsel]: Okay. So have you formed any opinions

about his character, in just observing him in court?

[Sawyer]: No, I have not. Once I hear the facts, I may.

But, at this point, no.

[Defense Counsel]: Okay. And how he reacts to whatever

he hears in court.

[Sawyer]: Yes.

(RR19:218-20). The prosecutor objected that the defense was “inviting

the juror to consider any facts and circumstances that would be outside

of the record.” (RR19:220). The objection was sustained. (RR19:220).

A defendant’s non-testimonial demeanor is not evidence subject to

reference by the State or the defense. See Good v. State, 723 S.W.2d

734, 736 (Tex. Crim. App. 1986)(discussing comment on defendant’s

demeanor by the State). It follows that jurors should not consider the

defendant’s non-testimonial demeanor. See Tex. Code Crim. Proc. Ann.

art. 38.08 (West 2005) (prohibiting any comment on the right of an

accused to remain silent or his failure to testify).

In this case, defense counsel never explained to Sawyer that if she

were selected as a juror, she would not be allowed to consider

Appellant’s non-testimonial demeanor. She never asked whether

99

Sawyer could set aside her desire to consider Appellant’s demeanor and

consider only the evidence properly presented. See Threadgill, 146

S.W.3d at 667.

On appeal, Appellant also challenges Sawyer because, in her

questionnaire, she indicated support for the death penalty; she thought

the death penalty was seldom used; and she agreed with a statement

that jurors should do what they believe is right, even if it is contrary to

the law. (Appellant’s Br. p.59). These complaints are not preserved for

review because they were not raised at trial. See Tex. R. App. P. 33.1(a)

(providing that a timely specific trial objection is prerequisite to

presenting a complaint on appellate review).

Appellant has failed to show that the trial court abused its

discretion in denying his challenge for cause against Sawyer. Issue 12

should be overruled.

Issue 13: Jonathan Henderson

Appellant challenged Henderson for cause because: (1) once he

found a person to be a future danger, the mitigation issue “would really

not be much to him”; and (2) he was evasive. (RR20:201-02).

100

Future Dangerousness/Mitigation

Appellant challenged Henderson on the basis that he would

automatically assess the death penalty if he found that the murder was

committed deliberately and if the defendant was not intellectually

disabled and was a future danger. During the State’s voir dire, however,

Henderson testified that he was “[a]bsolutely” open to hearing evidence

in mitigation. (RR20:157). He affirmed that he would keep an open

mind and consider all evidence when deciding the mitigation special

issue. (RR20:163-64). He confirmed his understanding that there are

no “automatic answers.” (RR20:164).

During the defense’s voir dire, the following exchange took place:

[Defense Counsel]: Right. In a hypothetical situation, what

are your feelings about the person not receiving the death

penalty but receive [sic] a life sentence instead?

Do you have any feelings, either way?

[Henderson]: Yes, I do.

[Defense Counsel]: Tell me. What are they?

[Henderson]: With the hypothetical situation of a man or

woman or a person, I should say, committing that type of a

crime, it’s almost like an eye for an eye. If they can do it,

then they ought to be able to receive it.

101

...

[Defense Counsel]: “You take a life, we take your life.”

What do you think about that?

[Henderson]: That’s when I say the facts have to be in line.

Because taking a life for a life, and all the facts are the

same, leading to that point, then it should be.

[Defense Counsel]: Then this should be the death penalty

instead of life?

Is that what you’re saying?

[Henderson]: Yes.

(RR20:174-76). Henderson did not testify that he would not consider

evidence in mitigation or that he would automatically answer the

special issues in a way that the death penalty would result. He

testified that “the facts have to be in line.” (RR20:175).

Defense counsel later returned to the subject and asked for

Henderson’s thoughts about a life sentence if the capital murder was

committed deliberately by a defendant who is not intellectually disabled

and is a future danger. (RR20:191). Henderson said that “[his] answer

right now would be no life sentence.” (RR20:191). At this point in

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