# Thomas, Kenneth Dewayne > Court of Appeals of Texas · September 27, 2016 URL: https://www.frixlaw.com/law-library/cases/4078842 ## Case - **Court:** Court of Appeals of Texas - **Decided:** September 27, 2016 - **Precedential status:** Published - **Opinion:** Opinion - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4078842 ## How later opinions describe it (automated extraction) - 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 - holding no due process violation in prosecution for intoxication manslaughter where elected district attorney previously represented defendant in DWI prosecution because there was no evidence the State used any confidential information - stating that a reviewing court “will not brief appellant’s case for him” - finding prosecutor’s explanation that a juror was resentful toward law enforcement was race-neutral ## Opinion text 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4078842. Public record. Not legal advice.