Calvert, James

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. AP-77,063

JAMES CALVERT, Appellant

v.

THE STATE OF TEXAS

ON DIRECT APPEAL FROM CAUSE NO. 241-1467-12

IN THE 241ST DISTRICT COURT

SMITH COUNTY

NEWELL, J., delivered the unanimous opinion of the Court.

OPINION

In October 2015, a jury convicted Appellant of murder in the course of committing

or attempting to commit burglary or kidnapping.1 Based upon the jury’s answers to the

special issues set forth in Texas Code of Criminal Procedure Article 37.071, Sections 2(b)

and 2(e), the trial judge sentenced Appellant to death.2 Direct appeal to this Court is

1

TEX . PENAL CODE § 19.03(a)(2).

2

TEX . CODE CRIM . PROC. art. 37.071, § 2(g). Unless otherwise indicated, all references to

Articles refer to the Code of Criminal Procedure.

CALVERT—2

automatic.3 After reviewing Appellant’s twenty-nine points of error, we find them to be

without merit. Consequently, we affirm the trial court’s judgment and sentence of death.

STATEMENT OF FACTS

While visiting Croatia, Appellant met the victim, Jelena. She accompanied him on

his return to Tyler, and they married in 2004. Jelena became increasingly fearful of

Appellant over the course of their marriage.

Appellant and Jelena’s first child, E.C., was born in 2006. Their second child, L.C.,

was born in 2008. Appellant and Jelena separated in 2009 and divorced in 2010. Jelena

obtained a restraining order that barred Appellant from going to her new home. According

to their divorce decree, Jelena had primary possession of the children. She could not move

with the children more than 125 miles from the Smith County Courthouse. Appellant had

visitation rights on alternate weekends and Thursdays. The order specified that Jelena and

Appellant would exchange the children at Jason’s Deli.

In January 2012, Jelena married Arvind Sriraman. Jelena wanted to move with the

children to Houston, where Sriraman had taken an engineering job, but Appellant refused to

agree to modify the terms of the child custody order. He was also uncooperative during

mediation. Eventually, Jelena and Sriraman took the matter to trial. On October 19, 2012,

a jury determined that the custody order should be modified so that Jelena and the children

could move up to 500 miles away from the Smith County Courthouse.

3

TEX . CODE CRIM . PROC. art. 37.071, § 2(h).

CALVERT—3

About twelve days later, on October 31st, Jelena was packing to move to Houston.

L.C., age four, was home with her. E.C., age seven, was at school. Although Appellant did

not have visitation that day, Jelena had agreed that Appellant could take the children to

dinner and then trick-or-treating.

Shortly before the scheduled visit, Appellant told Jelena that they needed to exchange

the children at her house instead of the deli. Jelena did not know it but Appellant had been

avoiding service of a motion by Deidre Adams, his first wife. Adams and Appellant had a

child together, J.C., and Adams had filed a motion to enforce court-ordered child support.

Appellant suspected that Adams was planning to serve him with that motion at the deli.

Jelena would not agree to exchange the children at her house. Appellant angrily canceled the

visit. Jelena was upset about this incident, which she relayed to multiple friends.

Less than three hours later, Appellant broke into Jelena’s house and, in front of L.C.,

shot her multiple times. Appellant took L.C. and fled to Louisiana. That evening, following

a high-speed chase in West Monroe, Louisiana, police officers arrested Appellant and

discovered L.C. physically unharmed in the back seat of Appellant’s car.

Appellant was indicted for capital murder. Counsel (Jeffery Haas and Jason Cassel)

were appointed to represent him. However, in February 2014, Appellant requested and was

granted the right to represent himself. He represented himself through approximately fifty

pretrial hearings, voir dire, and roughly three weeks of the jury trial. Appellant’s attorneys,

in standby status, were present and available to assist him. On September 15, 2015, during

CALVERT—4

the guilt phase, the trial court revoked Appellant’s pro se status and reinstated counsel to

represent him.

At trial, Shonda Emmert testified that she was in the parking lot across the street from

Jelena’s house around noon on the day of the offense. She heard, “[B]ang, bang, bang,”

which she initially thought was a nail gun “going off.” About a minute later she saw a man

walking out of the house, carrying a small child wrapped in a blue blanket. He went to a car

parked down the street, put the child in the back seat of the car, and drove away.

Emmert drove to the house to see if things were okay. Another woman, Robin

Dickerson, pulled up at the same time, ran into the carport, and screamed at Emmert to call

911. Emmert walked toward the house to get a better look at the house number. She saw a

body in the carport; the door between the kitchen and carport was “splintered” and looked

like it had been kicked in. When the prosecutor showed Emmert photographs of L.C.,

Appellant, and Appellant’s car, she stated that the photos were consistent with the

appearance of the child, the man, and the car she saw on the day of the offense.

Dickerson testified that she worked at the same church as Jelena. On the day of the

offense, around noon, she was in a parking lot near Jelena’s house when she heard four or

five shots. She looked toward Jelena’s house and saw a man carrying a child from the

carport to a car parked on the street. The man got into the car and left. Dickerson believed

that the child she saw was L.C. and the man, Appellant. Dickerson drove up, walked into the

CALVERT—5

carport and saw Jelena lying in the doorway, dead. When Emmert drove up, Dickerson told

her, “Call 911. He shot her.”

Tyler Police Detective Craig Shine, the lead detective in this case, responded to the

911 call. He testified that it was apparent from the number and locations of Jelena’s gunshot

wounds that the shooter knew her and wanted her dead. Based on his observations and

interviews at the crime scene, Shine obtained a capital murder warrant for Appellant. The

Tyler Police Department broadcasted a BOLO (“be on the lookout”) Alert and an Amber

Alert.

Texas Ranger Brent Davis testified that he went to the crime scene and saw numerous

cartridge casings on the kitchen floor. All of the casings were from a .40-caliber semi-

automatic pistol and were marked “.40 S&W.” From the location of the casings, it appeared

that the rounds were fired at Jelena from inside the house. Davis observed bullet strikes on

the door, the door frame, the car, and the concrete floor of the carport. It appeared that the

door between the kitchen and the carport had been kicked in; the strike plate and pieces of

wood from the door frame were on the floor. The door was standing open. Tyler police

officers advised Davis that L.C. was missing and that they believed he had been kidnapped.

It appeared to Davis that Jelena had been trying to leave the house to escape from the shooter

when she was shot multiple times.

Dr. Elizabeth Ventura, a medical examiner at the Southwestern Institute of Forensic

Sciences, conducted the autopsy. She testified that Jelena was intentionally killed.

CALVERT—6

Specifically, Jelena sustained six gunshot wounds, five of which damaged vital organs in her

head and torso. The number, direction, and location of the gunshot wounds indicated that

Jelena was changing her position in relation to the gun when she was shot. The fact that she

had sustained several fatal shots while moving around was evidence of an intentional killing

in which the shooter wanted her dead. Ventura said that it was likely, but not certain, that

the fatal shot to Jelena’s head was the last shot.

Howard Ryan, a forensic investigation consultant and crime scene reconstructionist,

testified about the bloodstain evidence at the crime scene. He noted that a contact transfer

stain on the carport door indicated that Jelena was shot in the back while she was upright, and

then she slid down the door. After she was seated and leaning against the door, she was shot

through the abdomen. Another shot through her arm and side caused her to fall onto the door

mat in the carport. Finally, Jelena sustained a shot to the back of the head while her head was

face down and several inches off the carport floor. A spent shell casing in the carport

indicated that the shooter was likely standing over her when he fired that shot. Ryan averred

that this pattern indicated that the shooter was proficient, in control, and “not frantic” while

he was shooting.

Tim McLemee, an expert in forensic digital data and media, discussed a data report

showing the WiFi connections that Appellant’s iPad had made on the day of the offense,

starting at 1:32 p.m. and ending at 9:46 p.m. These connections started in Tyler, Texas, and

ended near West Monroe in Ruston, Louisiana. Appellant’s iPad had connected to WiFi

CALVERT—7

networks in several McDonald’s restaurants along the route. Most of the searches on the

iPad were for news stories about the instant offense and Amber Alerts.4

West Monroe Police Officer Raymond Spoon testified that he had volunteered to

“take a call” before his shift started on the evening of the day of the offense. As a result, he

was not in the police station when officers were briefed on the alerts from Tyler, Texas, and

was unaware of those alerts when he first encountered Appellant.

Spoon was parked on the grassy median of the highway, “working drug interdiction,”

when Appellant’s vehicle passed him at 11:05 p.m. Spoon began following the vehicle after

he saw “some indicators” that it might be transporting drugs.5 Upon observing a traffic

violation, Spoon activated his lights and attempted to stop the vehicle. Initially, Appellant

pulled over and stopped, but as Spoon exited his patrol car, Appellant drove away. Appellant

thereafter passed three parking lot entrances where he could have pulled in and stopped

safely. He drove slowly and then stopped a second time. After Spoon exited the patrol car

and ordered Appellant out of his vehicle, Appellant drove away again. Concerned that this

pattern of stopping and starting was consistent with “baiting” and ambushing a police officer,

4

FBI Special Agent Mark Sedwick testified that the historical call detail records from

Appellant’s phone provided no cell tower information after 10:18 a.m., which meant that his phone

was turned off, out of the coverage area, or in airplane mode.

5

Spoon testified that the indicators included: the vehicle was traveling in the far right lane;

the driver’s hands were at “10:00 and 2:00” on the steering wheel; the driver looked straight ahead

and never looked toward Spoon; and the vehicle appeared to have a single occupant who was driving

on the interstate highway a little after 11:00 p.m. on Halloween.

CALVERT—8

Spoon called for assistance. Officer Justin Cummings, Sergeant Matthew Downhour, and

Corporal Marie Knight testified that they responded to Spoon’s call for assistance.

Initially, Appellant led a “slow-rolling chase,” but he picked up speed as other patrol

cars joined the pursuit. He ran red lights and almost caused several collisions. Appellant

eventually drove into a dead-end street in a residential area, made a U-turn, drove across a

front yard, and was finally forced to stop when his car was blocked in by police vehicles. As

officers were approaching Appellant’s vehicle with their guns drawn, Cummings heard

Appellant say, “Just don’t shoot my child.” Appellant would not open his car door. Officers

broke the window to reach him. Cummings removed a gun from between Appellant’s legs

and threw it away from the car. Appellant fought with officers after they pulled him from

the car. During the struggle, Appellant said, “You don’t know what I’ve done.”

Appellant resisted arrest and continued to be uncooperative when officers placed him

into a patrol car. Downhour stated that Appellant was wearing a concealed waistband

designed to hold a gun and magazines. It contained an empty magazine fitting the Sig Sauer

pistol that was on the back-seat floor. Although there was a different license plate on

Appellant’s vehicle than that in the BOLO Alert and Amber Alert, Knight identified

Appellant and the child as the subjects of those alerts.

Detective Shine testified that after the West Monroe Police Department notified him

that they had arrested Appellant, he drove from Tyler to West Monroe and interviewed

Appellant. During that interview, Appellant identified himself as the driver and owner of the

CALVERT—9

impounded vehicle and admitted to having a Sig Sauer pistol that he “always” kept in the

glove compartment and the weapon that officers had removed from his lap. Appellant told

Shine that if his son L.C. had not been in the car with him, he “would have shot those

idiots”—meaning the West Monroe police officers—when they pointed their guns at him.

In the audiovisual recording of Appellant’s statement to police, Appellant

acknowledged that he had taken about $200 in cash from his mother before he left her house

on the morning of the offense. He clearly described his activities shortly before Jelena’s

murder, including having breakfast at a Whataburger and picking up a copy of Adams’s

motion for enforcement of child support at the courthouse. However, he stated that he did

not remember anything after that until he was driving away from Tyler. Appellant suggested

that he might have been fixing a client’s computer during that time, but he could not identify

the client.6 He avoided describing the murder or specifying where or how he picked up L.C.

But he admitted that he “must have” taken L.C. from Jelena and that he “might” have had

Jelena’s phone in his car.

Appellant repeatedly stated that he did not remember—or that he did not know—if

he and Jelena had agreed that he would have the children that day or if Jelena had wanted

him to go to her house to pick them up. When an investigator asked him if it made him mad

when Jelena told him not to pick up the children from her house, he responded that he “didn’t

see the logic in it.” When asked where he went after he picked up L.C., Appellant told

6

The record shows that, at the time of the offense, Appellant worked as a freelance computer

consultant.

CALVERT—10

investigators that he did not recall driving toward any particular destination, but he

remembered “having a good day with [L.C.].” Appellant stated that he took L.C. to a

Halloween festival at a church or school somewhere between Tyler and West Monroe.

Appellant described Jelena, Adams (his first wife), and Debbie Campbell (his sister)

as unintelligent, vindictive, and dishonest. He acknowledged that Jelena had told him that

she was afraid of him. When investigators informed him that there were witnesses to the

offense, he remarked that Jelena’s neighbors would not recognize him.

When asked if he knew why he was in the police station, Appellant responded by

asking if he was being charged with speeding. He stated that he had evaded arrest because

he did not like getting speeding tickets. Detectives told him that he was being held on a

capital murder warrant, and he challenged them to show it to him. When they did, he

emphasized that the warrant was from Texas and stated that he needed to know what the

Louisiana charges were.

After speaking with Appellant, Shine viewed Appellant’s vehicle in the impound lot.

A West Monroe officer told Shine that Appellant had boasted following his arrest that “they

were looking for the wrong license plate.” Looking through the windows, Shine saw two

firearms and two cell phones, one of which matched the description of Jelena’s phone.

Tyler Police Department Detective Craig Williams testified that he processed

Appellant’s vehicle after it was returned to Tyler. He found Jelena’s cell phone on the back

seat and its black-and-pink case in the driver’s door pocket. He also identified a Springfield

CALVERT—11

XD handgun recovered from the driver’s floorboard, where West Monroe police officers had

placed it after they arrested Appellant.7 It had an attached magazine of twelve rounds and

one round in the chamber. All rounds recovered from that gun were Winchester .40 caliber

Smith & Wesson, the “same caliber and same brand of the casings that were at the crime

scene.” Additionally, Williams identified license plates found under the front passenger floor

mat as the current plates for Appellant’s vehicle. The license plates that were on the vehicle

when it was stopped were expired. Williams testified that the vehicle’s trunk contained

numerous loaded rifles, several handguns, and a large stock of ammunition. Appellant had

approximately 200 rounds, ready to fire, in the rifles.

Williams also reviewed photographs of items taken from the car. He identified: a

knife; a Don Hume holster; an Apple phone in a gray-and-white case; a Sig Sauer .380 pistol

with a loaded magazine and a chambered round; two additional loaded magazines; a

McDonald’s receipt from Arcadia, Louisiana, printed at 9:07 p.m. on the date of the offense;

an iPad; a computer bag containing copies of a modified order for possession and access to

J.C., the 2010 agreed final decree of divorce between Appellant and Jelena, a box of

“Winchester .40-caliber Smith & Wesson bullets” (which was missing ten bullets),

9-millimeter ammunition that would fit a Kel-Tec firearm, such as the Kel-Tec 9-millimeter

7

This firearm was the weapon that Cummings had thrown out of the car. Wade Thomas, a

forensic scientist with the Texas Department of Public Safety lab in Tyler, conducted a toolmark

analysis on the Springfield XD to determine whether it was the weapon used in the offense. By

comparing recovered projectiles with test-fired projectiles, Thomas determined that the recovered

projectiles were fired by the Springfield XD.

CALVERT—12

pistol found in the vehicle’s trunk, three shotgun rounds, and a box containing three

Hornaday Critical Defense .380-caliber cartridges; Appellant’s wallet; a blue-and-black

holster designed to be concealed under clothing; a SKS magazine loaded with five rounds;

“[o]ne case of Federal Premium Personal Defense .380 Auto, 90-grain Hydra-Shok, with 17

live rounds inside”; “[o]ne box of Remington 12-gauge buckshot 00BK”; a receipt for

buckshot from Gander Mountain in Tyler, printed at 10:38 a.m. on the date of the offense;

a Whataburger receipt printed at 10:05 a.m. on the date of the offense; and an envelope with

a copy of Adams’s motion for enforcement of child support order and order to appear in the

interest of J.C., file-marked October 26 (five days prior to the offense).

SUFFICIENCY OF THE EVIDENCE

Appellant does not challenge the sufficiency of the evidence to prove that he

intentionally killed Jelena. Rather, he argues that the evidence was insufficient to prove that

he did so in the course of committing or attempting to commit the offense of kidnapping

(point of error twenty-one) or in the course of committing or attempting to commit burglary

(point of error twenty-two). Appellant asserts that there was “evidence to defeat” the

underlying offense of burglary—L.C.’s statement that “there was a knock at the door” before

Appellant entered the house and killed Jelena.

In assessing the legal sufficiency of the evidence to support a conviction, we consider

all of the record evidence, whether admissible or inadmissible, in the light most favorable to

CALVERT—13

the verdict.8 We determine whether, based on that evidence and reasonable inferences

therefrom, any rational trier of fact could have found the defendant guilty of the essential

elements of the offense beyond a reasonable doubt.9

Here, the jury returned a general verdict finding Appellant “guilty of the offense of

capital murder as charged in the indictment.” We will uphold the verdict of guilt if the

evidence was sufficient on either the kidnapping or the burglary theory.10

A person commits capital murder when he intentionally causes the death of an

individual in the course of committing or attempting to commit burglary.11 A person

commits burglary if, without the effective consent of the owner, he enters a habitation with

the intent to commit a felony, theft, or assault; or if, without the effective consent of the

owner, he enters a habitation and commits or attempts to commit a felony, theft, or an

assault.12 “An unlawful entry into a habitation with the intent to commit murder will satisfy

the burglary element of a capital murder charge.” 13

8

Powell v. State, 194 S.W.3d 503, 507 (Tex. Crim. App. 2006).

9

Musacchio v. United States, 136 S. Ct. 709, 715 (2016) (citing Jackson v. Virginia, 443 U.S.

307, 319 (1979)).

10

See Sorto v. State, 173 S.W.3d 469, 472 (Tex. Crim. App. 2005).

11

See TEX . PENAL CODE § 19.03(a)(2); Whitaker v. State, 977 S.W.2d 595, 598 (Tex. Crim.

App. 1998).

12

TEX . PENAL CODE § 30.02(a)(1), (3).

13

Balderas v. State, 517 S.W.3d 756, 766 (Tex. Crim. App. 2016) (quoting Whitaker, 977

S.W.2d at 598-99).

CALVERT—14

When Appellant informed Jelena that he wanted to exchange the children at her house,

she expressly refused, telling him that they would exchange the children in the deli parking

lot as originally planned. Appellant then canceled the exchange. During and after these

discussions, Jelena communicated to Sriraman and to her friends that she was afraid of

Appellant and did not want him in her house.

Moreover, several witnesses at the crime scene observed that the door frame was

splintered and the strike plate was on the floor, indicating a forced entry. Evidence that

Jelena did not want Appellant in her home and that the door had been forced open

sufficiently established that Appellant entered Jelena’s home without her effective consent.

Thus, the first requirement of burglary is satisfied.

The evidence also established that Appellant entered Jelena’s home with the intent to

commit the felony of murder. Appellant aimed his gun at Jelena and shot her repeatedly as

she attempted to escape, and he shot her again after she was sitting and then lying on the

floor. Appellant’s use of a firearm, as well as the number and locations of Jelena’s gunshot

wounds, demonstrated his intent to murder Jelena.14 A rational jury could have determined

from this evidence that Appellant entered Jelena’s house without her effective consent,

intending to commit a felony, and intentionally murdered Jelena. Accordingly, the evidence

was sufficient to prove that Appellant was guilty of capital murder. Because we find the

14

See, e.g., Ex parte Thompson, 179 S.W.3d 549, 555 (Tex. Crim. App. 2005) (finding that

evidence of the Appellant’s intent to kill was overwhelming when, among other things, he

intentionally shot the victim in the abdomen and then intentionally shot him three more times as he

lay on the ground).

CALVERT—15

evidence sufficient to prove the offense of burglary of a habitation, we need not consider

whether the State proved the underlying felony of kidnapping.15 Points of error twenty-one

and twenty-two are overruled.

SHOCK CUFF ACTIVATION

Appellant wore a shock cuff on his ankle, which deputies activated outside the jury’s

presence. In point of error one, Appellant alleges that the trial judge violated his rights to

substantive and procedural due process by allowing him to be subjected to an electric shock

during trial for conduct that did not warrant such treatment, particularly when the judge had

far less drastic alternatives. Appellant asserts that he did not pose a security threat while

representing himself but instead was shocked for being disrespectful. Appellant notes that

his counsel later moved for a mistrial on the ground that he “highly suspect[ed]” that the

jury—which had just been excused for the day—heard Appellant scream.16 Appellant argues

that activating the shock cuff constituted “egregious official conduct” or conduct that

“shocks the conscience,” in violation of the Fourteenth Amendment guarantee of substantive

due process. He contends that this conduct was structural error requiring reversal.17 We

15

See TEX . PENAL CODE § 19.03(a)(2); see also Vega v. State, 267 S.W.3d 912, 913 (Tex.

Crim. App. 2008) (“If the hypothetically correct jury charge for the case would authorize the jury to

convict on alternative theories of liability, then the appellate court must deem the evidence sufficient

if it is sufficient under any of the theories of liability.”).

16

After this incident, the trial judge re-appointed standby counsel, who represented Appellant

for the rest of the trial.

17

Appellant also claims that the shock cuff’s activation violated the Eighth Amendment of

the United States Constitution, as well as Article I, Sections 13 and 19 of the Texas Constitution.

“Eighth Amendment scrutiny is appropriate only after the State has complied with the constitutional

CALVERT—16

agree with Appellant that, under the circumstances here, activation of the shock cuff violated

due process because there was no immediate security concern. We disagree with Appellant,

however, that the constitutional error in this case was structural or harmful, because the

activation was not in front of the jury and it only momentarily incapacitated Appellant.

Appellant requested before trial that he be allowed to wear a shock belt instead of a

leg brace in proceedings before the jury. He argued that a shock belt would be less

noticeable than a leg brace; therefore, it would not “lower” his presumption of innocence.

For reasons not explained in the record, Appellant wore both a shock cuff on his ankle and

a leg brace during the trial. Deputies activated the shock cuff two times. The first shock

came nearly a year before a jury was picked. The second shock came during trial, just after

the jury had left the courtroom for the day.

While Appellant complains only of the second incident, a brief summary of the first

is relevant to our harm analysis. The first occurred after a pretrial hearing on October 9,

2014, when Appellant refused to be handcuffed for transport to the jail. He grabbed the

counsel table with both hands and stiffened his arms. Unable to move Appellant’s arms,

transport officers activated the shock cuff for one second. Appellant yelled and immediately

guarantees traditionally associated with criminal prosecutions. . . . Where the State seeks to impose

punishment without such an adjudication, the pertinent constitutional guarantee is the Due Process

Clause of the Fourteenth Amendment.” Ingraham v. Wright, 430 U.S. 651, 671 n.40 (1977). Further,

Appellant has not briefed this or any other of his Texas constitutional claims separately from his

federal constitutional claims. Therefore, we will address only his federal constitutional claims. See

Welch v. State, 93 S.W.3d 50, 52 & n.5 (Tex. Crim. App. 2002).

CALVERT—17

broke his hold on the table. However, he continued resisting and fighting while they

handcuffed him. It took four officers to restrain and handcuff him.

When Appellant returned to the jail after this incident, the officers who accompanied

him expressed their intent to take him to the medical clinic to make sure that he was alright

after being shocked. But Appellant stated, “I’m okay,” and, “I don’t think I need to.” As

they walked across the parking lot toward the jail, officers asked Appellant several times if

he needed to go to the clinic. He repeatedly stated that he did not. When they reached

Appellant’s cell, Appellant cooperated as officers uncuffed him and unloaded his paperwork.

The second incident, the one at issue here, took place after the close of testimony on

September 15, 2015, during the guilt phase. After the jury had been excused for the day, the

trial judge conducted a hearing concerning Appellant’s cross-examination of Detective

Shine. The judge asked Appellant, “Where were you going with that[?]” Without standing

up, Appellant responded:

[APPELLANT]: Your Honor, I understand Detective Shine doesn’t remember

everything that’s before him. Obviously that would be next to impossible.

THE COURT: Next to impossible to what?

[APPELLANT]: For him to be able to --

THE COURT: Stand up when you talk to the Court. All they need you to do

is stand up when you talk to the Court. That’s what lawyers do. They stand

up.

Mr. Haas, he’s --

CAPTAIN CARAWAY: Stand up.

CALVERT—18

SERGEANT SHOEMAKER: I told you to stand up.

CAPTAIN CARAWAY: Stand up.

(Shock bracelet activated on defendant.)

[APPELLANT]: I’m sure the Court very much enjoyed that.

At that point, the judge terminated Appellant’s pro se status, explaining:

[F]or all the reasons this Court’s gone over, all the admonishments I’ve given

you. . . . I have warned you and warned you. . . . [Y]our right to represent

yourself is not just terminated on that type [of] disrespect for this Court, it’s

terminated on everything I’ve put up with from you right up through the last

set of admonishments I’ve given you. . . . [Y]our right to represent yourself,

based on all your conduct, all the admonishments I’ve given you, right up to

right now, your right to represent yourself is terminated.

***

I should have done this a lot earlier, but I kept giving you chance after chance

after chance.

The judge re-appointed defense counsel to represent Appellant.

The next morning, September 16th, the trial judge continued the case until September

28th in order to give defense counsel time to prepare for trial. When the judge informed the

jury of the new schedule and explained that defense counsel would be representing Appellant

when the trial resumed, Appellant interjected, “And the jury should know that was not

voluntary.” The judge told him to be quiet and sit down, but Appellant interrupted him two

more times to reiterate that he did not agree to defense counsels’ representation.

When the trial resumed twelve days later, defense counsel moved for a mistrial outside

the jury’s presence on the ground that he “highly suspect[ed]” that the jury heard “the

CALVERT—19

screams that [Appellant] let out after he was zapped.” In response to this motion, the judge

clarified that, when deputies activated the shock cuff, the jury was out of the courtroom and

the door was “shut behind them.” He acknowledged that he did not know “how far up the

hall the jury went,” but he added that there was no evidence in the record that any juror heard

anything “regarding any response of [Appellant] to being shocked.” The judge also stated

that, even if a juror had heard something, there was no evidence that the juror would have

had “any earthly idea who it was coming from.” Additionally, he concluded, “if they did

hear anything,” there was no evidence that it would affect their ability “to fairly and

impartially carry out their duty as jurors in the case.” The judge denied the motion for

mistrial.

We note that deputies had not shocked Appellant on previous occasions when he had

been significantly more combative and disrespectful than he was when they shocked him for

failing to stand on September 15th. Further, Appellant’s failure to stand did not pose an

immediate threat to courtroom security. The trial judge’s admonishment to Appellant

immediately after the shock made no mention of a threat to security but instead expressed

exasperation over Appellant’s continuing failure to follow the deputies’ and the judge’s

instructions as well as his defiant and disrespectful attitude toward the judge.18

We agree with Appellant that activating the shock cuff as a means to get Appellant

to stand up when addressing the trial court violates due process. As the El Paso Court of

18

Cf. Morris v. State, 554 S.W.3d 98, 118 (Tex. App.—El Paso 2018, pet. ref’d).

CALVERT—20

Appeals recently put it, immediate security concerns or flight risk can justify the activation

of a stun belt; decorum concerns cannot.19 Use of a stun belt “as a method to enforce

decorum or as a punishment for a defendant’s obstreperous conduct, is constitutionally

prohibited and falls outside the wide discretionary penumbra for courtroom management set

by [Illinois v. Allen, 397 U.S. 337, 346 (1970)].” 20

However, contrary to Appellant’s contention, the error was not structural. Structural

errors are a very limited class of errors that affect the framework within which the trial

proceeds such as the total deprivation of counsel, the lack of an impartial trial judge, the

violation of the right to self-representation at trial, the violation of the right to a public trial,

or the giving of a constitutionally deficient reasonable-doubt instruction.21 Like the El Paso

Court of Appeals, we cannot conclude that the error here, which again, occurred outside the

presence of the jury, falls within that category. But the error in improperly activating the

19

Id. Unlike in Morris, the trial judge in this case did not instruct deputies to shock the

defendant; rather, the deputies activated the shock cuff on their own volition after appellant

disobeyed their instructions. Cf. 554 S.W.3d at 104-05. But the trial court made clear on the record

that the deputies had the freedom to activate it as means to enforce decorum. At one point the trial

court reminded Appellant that “the deputy has got a shock device in their hand . . . . [T]hey will use

whatever means they have to control you.” Shortly thereafter, when Appellant had responded to a

State’s objection before standing up, [the deputy] said, “If you’re going to speak to the Court, stand

up. Last chance.” The trial court added, “Stand up, Mr. Calvert. It won’t work out good if you

don’t stand up, believe me.” Nothing in the record suggests the trial judge did not condone the shock

as a means to enforce the stand up/sit down rules. Quite the opposite.

20

Id.

21

United States v. Marcus, 560 U.S. 258, 263 (2010).

CALVERT—21

shock cuff was of constitutional dimension.22 Accordingly, we will apply the harm standard

for constitutional error: this Court must reverse unless we determine beyond a reasonable

doubt that the error did not contribute to the conviction or punishment.23

There are two primary ways in which a shock cuff’s activation may adversely affect

the fairness of a trial. The first way is the negative effect on jurors’ impartiality and the

presumption of innocence—implicating the Fifth Amendment.24 The second is the negative

effect on the defendant’s ability to confer with counsel and otherwise participate in his

defense—implicating the Sixth Amendment.25 Neither applies here.

There is no evidence that the shock cuff’s activation had a negative effect on the

jurors’ impartiality or the presumption of innocence. The jurors were not present.26 Absent

22

See Morris, 554 S.W.3d at 124; Deck v. Missouri, 544 U.S. 622, 629, 630, 635 (2005)

(“[A]bsent a trial court determination, in the exercise of its discretion,” that their use is “justified by

a state interest specific to a particular trial,” the use of visible physical restraints during the guilt

phase of a criminal trial violates due process because it “undermines the presumption of innocence

and the related fairness of the factfinding process.”).

23

See TEX . R. APP. P. 44.2.

24

See, e.g., Chavez v. Cockrell, 310 F.3d 805, 807, 809 (5th Cir. 2002); Morris, 554 S.W.3d

at 112.

25

See, e.g., United States v. Durham, 287 F.3d 1297, 1306 (11th Cir. 2002) (“[A] stun belt

imposes a substantial burden on the ability of a defendant to participate in his own defense and

confer with his attorney during a trial.”); Morris, 554 S.W.3d at 112.

26

Cf. Hollaway v. State, 6 P.3d 987, 994 (Nev. 2000), overruled on other grounds by Lisle

v. State, 351 P.3d 725 (Nev. 2015) (finding reversible error when defendant’s shock belt was

accidentally activated during prosecutor’s final closing argument asking “how deep, deep into this

man’s being does this violence run”). The “accidental” activation in Hollaway is no anomaly;

purposeful activations are comparatively rare.

CALVERT—22

evidence in the record that jurors heard Appellant scream, we will not speculate that they

did.27

Further, the record contains no evidence that the shock cuff’s activation affected

Appellant’s ability to confer with counsel and participate in his defense. Conversely, in State

v. Belcher, there was evidence that after the activation of the defendant’s shock belt, the

defendant “was not able to confer with his counsel in deciding how to exercise his

peremptory strikes.”28 And in Morris v. State, there was evidence that the activation caused

the defendant’s absence from most of the trial proceedings because he was afraid to be in the

courtroom.29

Unlike Belcher and Morris, Appellant was no more than momentarily incapacitated

by the activations of the shock belt. And the record of this case does not indicate that

27

See Word v. State, 206 S.W.3d 646, 651-52 (Tex. Crim. App. 2006) (“It is usually the

appealing party’s burden to present a record showing properly preserved, reversible error.”); Weaver

v. State, 894 So. 2d 178, 196 (Fla. 2004) (holding that accidental activation of stun belt did not

prejudice defendant where the activation occurred outside the presence of the jury); State v.

Wachholtz, 952 P.2d 396, 399 (Idaho Ct. App. 1998) (affirming denial of motion for mistrial based

on the accidental discharge of stun belt that occurred while potential jurors were assembled before

voir dire, where the defendant had offered no evidence that potential jurors actually heard the

defendant scream after the belt’s discharge); Harrison v. Yarborough, No.

103CV05005-AWI-SMSHC, 2006 WL 735986, at *1 (E.D. Cal. Mar. 22, 2006), aff’d sub nom.

Harrison v. Yarbourogh, 211 F. App’x 653 (9th Cir. 2006) (holding that there was no prejudice

where, “although the stun-belt was activated while the jury was deliberating and Petitioner screamed,

Petitioner ha[d] adduced no evidence that the jurors heard or attributed the scream to Petitioner, or

were in any way influenced by the activation”).

28

State v. Belcher, 183 S.W.3d 443, 449 (Tex. App.—Houston [14th Dist.] 2005, no pet.)

(finding reversible error).

29

Morris, 554 S.W.3d at 117-21, 124-26 (finding reversible error).

CALVERT—23

Appellant was anxious or distracted by the possibility of another shock.30 After the first,

pretrial activation, Appellant continued to resist and fight the transport guards, and then

repeatedly refused offers for medical treatment, stating that he was “okay.” Thereafter, he

very actively and consistently participated in his defense. And after the second, midtrial

activation, coming nearly a year later, Appellant continued arguing with the judge. Before

the jury, Appellant interrupted the judge several times to express his disagreement with the

reinstatement of defense counsel. In addition, the trial judge continued the proceedings for

twelve days to give defense counsel time to get up to speed.

On this record, we conclude that the shock cuff’s activation outside the jury’s

presence did not affect the jurors’ impartiality, nor Appellant’s presumption of innocence,

nor Appellant’s ability to be present at trial and participate in his own defense. We are

confident beyond a reasonable doubt that the error did not contribute to the conviction or

punishment.31 Point of error one is overruled.

DENIAL OF MISTRIAL

In point of error two, Appellant makes two arguments in support of his assertion that

the trial judge erred by refusing to grant a mistrial following the shock cuff’s activation.

First, he argues that this incident biased the jury against him. We rejected Appellant’s first

argument in our discussion of point of error one. Second, he contends that it was

30

See Durham, 278 F.3d at 1306.

31

See TEX . R. APP. P. 44.2(a).

CALVERT—24

unreasonable to force defense counsel to assume responsibility for a trial in which so much

had transpired because there was no way for counsel to develop and implement an effective

trial strategy. Appellant asserts that “there effectively was nothing counsel could do.” He

argues that, if the judge felt compelled so late in the trial to require Appellant to proceed with

counsel, then the judge was also compelled to grant a new trial in which counsel could

perform effectively. Appellant’s second argument is not preserved because defense counsel

did not timely move for a mistrial on this basis.32 Point of error two is overruled.

CONFLICT OF INTEREST

In point of error three, Appellant argues that the trial judge erred by re-appointing his

standby counsel, Jeffrey Haas and Jason Cassel, to represent him as defense counsel when

the judge revoked his pro se status because Appellant and defense counsel “clearly” had a

conflict of interest. Specifically, Appellant contends that because he had accused counsel

of “unethical conduct, ineffective assistance, and other wrongdoing,” it was unreasonable

for the trial judge to conclude that counsel could zealously represent him.33 He argues that

counsel had a disqualifying conflict of interest as a matter of law because he had filed

“grievances with the State Bar on Mr. Haas.”

32

See TEX . R. APP . P. 33.1; Griggs v. State, 213 S.W.3d 923, 927 (Tex. Crim. App. 2007).

33

After the trial court denied Haas’s first motion to withdraw, defense counsel did not move

to withdraw again. See our discussion of points of error five through seven, below.

CALVERT—25

The Sixth Amendment guarantees the right to reasonably effective assistance of

counsel, which includes the right to “conflict-free” representation.34 In the case of a conflict

of interest, trial counsel renders ineffective assistance if the defendant can demonstrate that

(1) counsel was burdened by an actual conflict of interest; and (2) the conflict actually

affected the adequacy of counsel’s representation.35 The mere possibility of a conflict,

without more, will not justify reversal.36

Regarding the first prong, “an ‘actual conflict of interest’ exists if counsel is required

to make a choice between advancing his client’s interest in a fair trial or advancing other

interests (perhaps counsel’s own) to the detriment of his client’s interest.”37 “The appellant

bears the burden of proof by a preponderance of the evidence on a claim of

conflict-of-interest ineffective assistance. . . .”38 Therefore, if a defendant fails to present any

34

See Strickland v. Washington, 466 U.S. 668, 692 (1984); Cuyler v. Sullivan, 446 U.S. 335,

348-50 (1980).

35

Cuyler, 446 U.S. at 349-50.

36

Id. at 350; see also Pollan v. State, 612 S.W.2d 594, 596 (Tex. Crim. App. 1981) (panel

op.).

37

Acosta v. State, 233 S.W.3d 349, 355 (Tex. Crim. App. 2007) (quoting Monreal v. State,

947 S.W.2d 559, 564 (Tex. Crim. App. 1997)).

38

Odelugo v. State, 443 S.W.3d 131, 136 (Tex. Crim. App. 2014).

CALVERT—26

evidence regarding the issue, or if the evidence relevant to the issue “is in perfect equipoise,”

his “claim will fail.” 39

Regarding the second prong, a defendant’s allegation alone that counsel has not been

zealous in his representation does not establish an actual conflict of interest.40 Nor does a

defendant’s refusal to cooperate with counsel and desire to no longer be represented by his

appointed counsel.41 Further, a criminal defendant’s filing of a grievance or other legal

proceeding against his court-appointed counsel does not necessarily give rise to a conflict of

interest.42

Here, when the trial judge initially allowed Appellant to proceed pro se, the judge also

directed standby counsel to continue investigating and preparing a defense so that they would

be ready to represent Appellant if necessary. Appellant filed pleadings complaining about

standby counsel’s investigation and repeatedly threatened to sue or file grievances against

counsel for alleged misconduct. For example, in “Defendant’s Motion for Court to Change

the Selection of Assignment of ‘Standby Counsel,’” Appellant argued that he was entitled

to new standby counsel for the following reasons: “bad communication and lack of zealous

39

Id. at 136-37.

40

Cf. Acosta, 233 S.W.3d at 355.

41

See Viges v. State, 508 S.W.2d 76, 76-77 (Tex. Crim. App. 1974).

42

See Dunn v. State, 819 S.W.2d 510, 519 (Tex. Crim. App. 1991) (rejecting a defendant’s

conflict of interest claim that relied on his malpractice action against his attorneys); Perry v. State,

464 S.W.2d 660, 664 (Tex. Crim. App. 1971) (holding that a defendant’s civil rights action against

his attorney did not establish an actual conflict of interest).

CALVERT—27

drive”; counsel “hampered” Appellant’s defense and failed to assist him in “furthering” his

defense; unspecified “[o]bjections, problems, questionable actions are all well documented

within ex parte proceedings to which Defendant cannot disclose herein yet give rise to

challenge the Court in its motives to a level giving Defendant . . . good cause for alarm if

true. (See Ex parte filings, etc.)”; counsel “betrayed” him by disclosing privileged

information to the State, which was “legally unethical”; and counsel’s testimony at a hearing

on Appellant’s motion to recuse the trial judge was “surprisingly” unfavorable.

At the hearing on this motion, Appellant accused the trial judge of ordering counsel

to reveal privileged information to the State. Standby counsel Cassel denied any intent to

provide privileged information to the State. He explained the process he intended to use to

copy information from a computer that was in evidence so that he could give that information

to Appellant. Appellant argued that simply copying the data would alter it, so even if counsel

acted in good faith, “the relationship has been destroyed between me and Mr. Cassel.” The

judge denied Appellant’s request for different standby counsel. Cassel stated that he would

not copy the hard drive if Appellant did not want him to. Appellant confirmed that he did

not want Cassel to copy it. He added that most of his “work product” was on USB drives,

and he did not want counsel to copy those drives, either.

This process of a complaint, a hearing, and a resolution repeated itself several times.

Appellant’s complaints may have been “very personal” but there is no indication in the

record that counsel took them as such. Instead, counsel followed the trial court’s repeated

CALVERT—28

instructions to continue preparing a parallel defense in the event that they were reinstated to

represent Appellant, as they eventually were. Appellant does not identify any instance in

which counsel was required to make a choice between advancing their own interests or

advancing Appellant’s interests.43 Instead, he argues that counsel was conflicted as a matter

of law because of the grievance that he had filed. Appellant cites Garner v. State 44 for the

proposition that the existence of a grievance constitutes a conflict of interest as a matter of

law. But that is not what Garner says. In that case, as here, the nature of the grievance was

unclear from the record. The court held that Garner “ha[d] on appeal shown the mere

possibility of a conflict of interest. That mere possibility, without more, [wa]s not sufficient

to impugn a criminal conviction.”45 The same is true here.

Appellant at most has shown only the “mere possibility of a conflict of interest.”

Appellant attached to one of his pleadings a letter from the State Bar, dated January 29, 2014,

responding to a grievance Appellant filed against Mr. Haas. That letter stated that the

grievance committee had determined that the information alleged “d[id] not demonstrate

professional misconduct or an attorney disability;” thus, the committee classified the

grievance as an inquiry and dismissed it. This dismissal came at least twenty-one months

before Mr. Haas was placed back in as counsel.

43

See Acosta, 233 S.W.3d at 355.

44

864 S.W.2d 92 (Tex. App.—Houston [1st Dist] pet. ref’d).

45

Id. at 99.

CALVERT—29

Further, our own review of the record has not uncovered any instance in which

counsel advanced their own interests over Appellant’s. Appellant consulted standby counsel

on several occasions. Standby counsel provided Appellant with the legal materials he

requested. After Appellant complained that he could not find investigators and experts who

were willing to work with a pro se defendant, standby counsel located investigators and

experts for him. Counsel took discovery materials to the jail for Appellant’s review, but

Appellant often refused to meet with counsel. As the State notes, Haas and Cassel were

present for the multiple pretrial hearings and the trial, they were familiar with the thousands

of pages of discovery, and they had no objections to stepping back in.

Because Appellant has not met his burden to prove, by a preponderance of the

evidence, that counsel made a choice between advancing Appellant’s interest in a fair trial

and advancing other interests to Appellant’s detriment, he has not proved a constitutional

conflict of interest. The trial judge did not err by reinstating standby counsel, Haas and

Cassel, to represent him as defense counsel. Point of error three is overruled.

THE FARETTA RULE

In point of error four, Appellant argues that this Court should limit the Faretta rule

by holding that a defendant in a case in which the State is seeking the death penalty cannot

waive his constitutional right to counsel. In Faretta v. California, the Supreme Court held

that the Sixth Amendment guarantees a defendant in a state criminal trial the right to

CALVERT—30

represent himself at trial.46 We have previously held that the Sixth and Fourteenth

Amendments guarantee that a person brought to trial, even in a capital murder case in which

the State seeks the death penalty, may dispense with counsel and make his own defense.47

We decline to revisit the matter in this case. Point of error four is overruled.

PRO SE REPRESENTATION

In intertwined points of error (five through eight), Appellant asserts that the trial court

erred in permitting him to represent himself. Appellant’s arguments rest upon a four-prong

attack. First, Appellant should not have been allowed to proceed pro se because he was not

competent to represent himself. Second, Appellant could not have knowingly and voluntarily

waived his right to counsel because of his mental health issues. Third, the trial judge should

have conducted an adversarial hearing with independent counsel to ensure that Appellant was

competent to waive counsel and represent himself despite his mental heath issues. And

fourth, Appellant did not voluntarily waive his right to counsel because his waiver was

equivocal. After addressing the relevant facts, we will discuss each of these points of error

on the merits.

Relevant Facts

46

Faretta v. California, 422 U.S. 806, 818-20 (1975).

47

See, e.g., Moore v. State, 999 S.W.2d 385, 396 (Tex. Crim. App. 1999) (citing Faretta, 422

U.S. at 818-20).

CALVERT—31

Haas was appointed to represent Appellant in November 2012. About two months

later, he filed a motion to withdraw. At the hearing on this motion, Haas described

Appellant’s interest in pursuing an insanity defense and their strategic disagreement over

whether to file a motion for change of venue. Haas informed the court that, based solely on

that disagreement, Appellant told him, “[W]e’re not able to communicate. I want you to

withdraw.” Appellant told the judge, “I just feel he’s going to sell me out, and he’s already

decided on what my fate is going to be.” Appellant added that he felt “so strongly against

this that I’d rather represent myself pro se than continue on with Mr. Haas.”

The judge stated that he had “heard nothing in this hearing . . . to cause the Court to

discharge Mr. Haas as [Appellant’s] lead attorney.” The trial judge denied the motion to

withdraw. Appellant stated that he would represent himself pro se if the judge did not

appoint a different attorney. The judge advised Appellant that representing himself in a

capital murder case “would be the absolute worst-case scenario looking at what you can be

facing.” After the hearing, Haas remained as lead counsel.

A year later, Haas advised the judge that Appellant wished to proceed pro se. At a

hearing, Appellant confirmed this. The judge explained to Appellant that he would appoint

a mental health expert to conduct an examination and determine whether Appellant had the

ability to knowingly, intelligently, and competently waive his right to counsel. Appellant

repeatedly objected to the appointment of a mental health expert, arguing, “[T]here’s been

no submission of any inquiry or anything to raise an inquiry of competency,” and, “There’s

CALVERT—32

nothing in the Code of Criminal Procedure that provides any power to the Court . . . to assign

me to have a competency hearing[.]”

The trial judge acknowledged that no statute mandated a competency evaluation, and

that there was “no evidence in this case whatsoever . . . that you are not competent to stand

trial.” However, it was “of great concern to the Court at every step that the Court takes every

precaution it can . . . before the Court approves the waiver.”

The trial judge appointed Dr. Mitchell Dunn to evaluate Appellant’s competency to

waive his right to counsel. Dr. Dunn reviewed Appellant’s mental health records, including:

a 1999 psychological examination; psychiatric treatment beginning in 2009; and an

admission to a psychiatric unit in 2011. He reported that Appellant had been diagnosed with,

and prescribed psychotropic medications and ongoing therapy for, several “disorders.”

Specifically, Appellant had been diagnosed with obsessive-compulsive disorder; “Major

Depressive Disorder, Recurrent, in Partial Remission”; and “Personality Disorder Not

Otherwise Specified, with Antisocial and Obsessive-Compulsive Features.”

Additionally, Dr. Dunn interviewed Appellant for two hours and forty-five minutes.

He opined “to a reasonable degree of psychiatric certainty that [Appellant] is competent to

waive his right to counsel and to represent himself in a case where he’s indicted for capital

murder and the State is seeking the death penalty.” After discussing with Appellant the

advantages and disadvantages of self-representation, Dr. Dunn concluded that Appellant was

“capable of knowingly and intelligently waiving the traditional benefits associated with a

CALVERT—33

right to counsel” and Appellant could “describe in a reasoned manner the potential benefits

for him in pursuing such a course as well as the potential risks.” Dr. Dunn reported that

Appellant stated that he wanted to represent himself to “have more flexibility of doing what

[he wants] to do.” Appellant had acknowledged that he “wants to control the situation, [and]

is frustrated when he can’t [control it].”

During a pretrial hearing regarding Appellant’s request to proceed pro se, both

Appellant and defense counsel agreed with this assessment. The judge asked Appellant if

he still wanted to represent himself. Appellant responded that he did not “wish to necessarily

represent [himself] as a matter of free choice.” He expressed his dissatisfaction with defense

counsel’s performance—specifically, counsel’s failure to investigate, obtain materials that

Appellant had requested, and take other actions.48 He stated that he wanted effective counsel

but did not feel he had effective counsel. He asserted that, because the trial judge had denied

his motion to substitute counsel, his “only recourse” was to represent himself.

The judge reiterated that he had no indication that defense counsel had been

ineffective or that there were valid grounds for counsel’s withdrawal. The judge stated that,

if he allowed Appellant to represent himself, he would appoint defense counsel as standby

counsel. When Appellant asked the judge to direct him to case law describing the

48

More specifically, Appellant complained that counsel did not: request a reduced bail;

provide him the grand jury transcript, and in fact denied its existence; “perform[] process” on the

defense’s investigator and mitigation expert; talk with Appellant’s family law attorneys; obtain

certified copies of the family court proceedings; and contact the State about discovery materials that

Appellant believed should have already been provided.

CALVERT—34

responsibilities of standby counsel, the judge admonished him that he would have to do his

own legal research if he represented himself.

The trial judge asked Appellant and counsel whether, in light of counsel’s response

to Appellant’s specific complaints, “an effort could be made to see if any of these matters

could be resolved” so that Appellant could pursue “some other course” besides representing

himself. But Appellant maintained that he did not want to work with defense counsel and

that he “would even have to object that he be appointed as standby counsel when we get to

that point, if we do.” He contended that counsel would be biased and “not zealous” in

assisting him.

The judge reviewed the indictment and elicited Appellant’s acknowledgment that he

understood the charges against him. The judge explained that the State had the burden of

proof and that the trial would proceed to a sentencing phase if Appellant were found guilty.

In response to the judge’s admonishments and questioning, Appellant showed his

understanding and familiarity with the sentencing process (including the special issues);

pretrial motions (including grounds for suppression); the jury selection process (including

challenges for cause and peremptory strikes and the disadvantages he would face during the

process); the definition of mitigating evidence; the types of experts that could testify at the

sentencing phase regarding future dangerousness and mitigation; the direct appeal process;

the writ process (including waiving any claim of ineffective assistance of counsel by

representing himself); his responsibility for drafting jury charges and objecting to the State’s

CALVERT—35

proposed charge; and the high degree of “trial ability,” qualifications, and experience

generally required by counties for an attorney to defend a capital case; and the process of

laying a proper predicate for a witness.

Appellant affirmed that he had represented himself in a child custody dispute and that

he had graduated from Texas A&M University with a degree in computer science. He agreed

with Dr. Dunn’s statements that he was aware of the benefits and risks associated with pro

se representation and that he was “capable of knowingly and intelligently waiving the

traditional benefits associated with the right to counsel.”

The judge reviewed the process of cross-examining expert witnesses, advising

Appellant that defense counsel knew how to do it. The judge repeatedly emphasized that

Appellant would have to make proper objections in order to keep out inadmissible testimony

and that the judge would hold Appellant to the same rules of evidence as he would hold an

attorney. The judge admonished him that, if he did not properly object to testimony, he

would waive the objections.

The judge noted that Appellant would be personally responsible for finding experts

and other witnesses and having them available to testify. He asked Appellant how, being

incarcerated, he would locate and contact the witnesses he needed. Appellant responded that

he had “people on the outside that can help me,” and that he could write letters and make

“limited telephone calls” from jail. The judge emphasized the disadvantages that Appellant

CALVERT—36

would face as an incarcerated pro se defendant, as opposed to defense counsel who could “do

all that.” Appellant reiterated that he understood.

Additionally, the judge stressed his view that Appellant was “making a tremendous

mistake” by invoking his right to self-representation when he had “almost no experience in

the questioning of these type witnesses or cross-examination of witnesses called by the State

or understanding how to object to evidence.” Appellant stated that he understood “the

Court’s opinion.”

The judge then asked Appellant if he was requesting self-representation “competently,

voluntarily, knowingly, and intelligently.” Appellant affirmed that he was. The judge asked

him if he was making the request “for waiver of counsel clearly, unconditionally, and

unequivocally.” Appellant responded, “I have a problem with that last part. I want to

represent myself, and I do not want counsel. Per our conversation that we’ve had previously,

the ‘and do not want counsel’ is not exactly true. I’d ask that that be removed.” The judge

stated that Appellant did not have a right to court-appointed counsel of choice and that he

could not allow Appellant to represent himself unless his waiver was free and unconditional.

After conferring with defense counsel, Appellant stated that he did not know if he

“agreed with that,” but he “guess[ed] it was okay.” He added that the written waiver

language was “oversimplified” because he wanted to represent himself and he did not want

the counsel that he had. The judge repeated that Appellant’s qualified statement was not a

valid waiver.

CALVERT—37

After additional consultation, defense counsel clarified to the judge that Appellant had

been qualifying his statement because he wanted to make sure that executing the waiver of

his right to counsel would not waive his prior objections to counsel. Appellant affirmed that

this was his concern. The judge confirmed that Appellant’s objections were on the record

and that Appellant’s waiver of counsel would not waive any ruling that was on the record.

He reiterated that he could not consider a waiver of counsel unless it was “unconditional and

unequivocal.” Defense counsel expressed the view that the trial judge’s assurances

concerning its prior rulings had resolved the matter, and Appellant concurred. When the trial

judge again asked Appellant if he voluntarily abandoned his right to counsel, Appellant

agreed, without qualification, that he did. The judge again reviewed the hazards of self-

representation and advised Appellant that he was making a mistake, but Appellant persisted

in his desire to represent himself.

Appellant then executed a written waiver of counsel.49 The trial judge approved the

waiver and appointed defense counsel as standby counsel. The judge informed Appellant

that standby counsel would be ready to take over if Appellant changed his mind about

wanting to represent himself. The judge also warned Appellant that if he made “a mess of

the case trying to represent yourself” or did “damage to the case,” and counsel “step[ped]

49

See TEX . CODE CRIM . PROC. art. 1.051(f) (“A defendant may voluntarily and intelligently

waive in writing the right to counsel. . . .”).

CALVERT—38

back in,” counsel would have to “work with what they’ve got left.”50 Appellant stated that

he understood. Based on Dr. Dunn’s report, the judge’s own communications with

Appellant, and defense counsel’s representations, the trial judge concluded that Appellant

was competent to waive his right to counsel and represent himself and that he knowingly,

intelligently, and voluntarily chose to do so. Trial on the merits was scheduled to begin

eighteen months later.

The day before trial, Appellant filed “Defendant Pro Se’s Motion to Allow the

Defendant to Revoke His Waiver of Counsel Contingent Upon That Re-Appointment of

Counsel Would Neither be Jeffrey Haas Nor Jason Cassel (Both Being Current Appointed

‘Standby’ Counsel) Under Art. 1.051(h).” In this motion, he asserted that the “Court is fully

aware of all continued complaints against ‘now standby counsel’ in open and other settings,

pleadings, etc. . . . Defendant does not have the time to re-list them all and simply moves the

Court to take judicial notice of the record.” He concluded that, if the judge would not

appoint new counsel, then he wanted to remain pro se (which he described as “the lesser of

two evil[s]”).

Appellant also filed “Defendant[’s] pro se Objections to Court’s Lack of

Admonishments Concerning Restrictions that are Placed on Defendant Upon Entering of a

Waiver of Counsel.” He asserted that the trial judge had not admonished him concerning

50

See TEX . CODE CRIM . PROC. art. 1.051(h) (“A defendant may withdraw a waiver of the

right to counsel at any time but is not entitled to repeat a proceeding previously held or waived solely

on the grounds of the subsequent appointment or retention of counsel. . . .”).

CALVERT—39

“[t]he problems with ineffective ‘standby’ counsel, essentially working for the Court and

supporting the State, as well as a highly biased court, and an extremely unethical District

Attorney’s Office.” He complained that he had been forced to dedicate time and resources

to filing motions and objecting to alleged prosecutorial misconduct and that the judge had

not admonished him that he would have to do so. He also complained that the judge had not

admonished him that he would not have specific “rights” in jail, many of which concerned

his subjective expectations of privacy and his ability to contact witnesses and review

discovery. He further averred that he was “ill-prepared” for trial.

About a week later, after the trial had begun, the trial judge heard these pleadings and

denied them.51 Appellant re-asserted his motion for the appointment of new counsel, along

with “all my motions that I filed since the 24th,” at a September 8, 2015 hearing. The judge

repeated his denial.52

51

At first, the trial judge stated that these motions and objections, filed the day before the trial

on the merits was scheduled to begin, were untimely and therefore he would not rule on them.

52

On September 24, 2015, defense counsel moved for an informal inquiry into Appellant’s

competency to stand trial. The jury trial was on hold because, after revoking Appellant’s pro se

status, the judge gave counsel twelve days, from September 16th to 28th, to prepare for trial. The

trial judge held a hearing on this motion on September 30th—two days after the jury trial resumed.

Although that hearing did not address Appellant’s competency to waive counsel and represent

himself, we will summarize it because it is relevant to claims five through seven. Defense counsel

pointed to a number of poor decisions that Appellant had made while representing himself as

evidence that he did not have a rational understanding of the proceedings. The prosecutor responded

that Appellant’s poor decisions were not evidence that he lacked a rational understanding but instead

were a consequence of his lack of legal training. The defense submitted an affidavit from attorney

Kenneth Murray questioning Appellant’s competence. The prosecutor observed that Murray had

tried to negotiate a plea offer for Appellant, which indicated that Murray had believed at one time

(continued...)

CALVERT—40

Applicable Law

The Sixth Amendment guarantees that “[i]n all criminal prosecutions, the accused

shall enjoy the right . . . to have the Assistance of Counsel for his defense.”53 That right

includes the well-established reciprocal right to self-representation.54 But in order to proceed

pro se, a defendant must knowingly and voluntarily waive his right to counsel.55 The

competency standard for waiving counsel is no higher than the standard for competency to

stand trial.56 To knowingly and voluntarily waive the right to counsel, a defendant need not

have the skill and experience of a lawyer.57 But the defendant must “be made aware of the

52

(...continued)

that Appellant had a rational understanding of the proceedings against him and was competent to

enter a plea. The prosecutor called Drs. Michael Arambula and Edward Gripon. Arambula opined

that Appellant had a sufficient present ability to consult with his attorneys and a rational as well as

factual understanding of the proceedings. Arambula had watched Appellant during the trial and

observed that his mistakes while representing himself were not caused by mental illness but instead

resulted from a lack of legal training. Appellant’s inappropriate behaviors were due to his

personality problems. Arambula noted that Murray’s affidavit did not use the term “irrational” in

the way that a medical expert would. Arambula did not observe any conduct at trial consistent with

irrational thinking due to mental illness. He also observed that Appellant effectively consulted with

standby counsel when he wanted their help. Gripon agreed with Arambula. He added that Murray’s

statement—that Appellant’s mental and emotional deficiencies negatively affected his

perceptions—did not allege facts indicating incompetence. The judge concluded that Appellant was

competent to stand trial.

53

U.S. CONST . amend. VI; see also Williams v. State, 252 S.W.3d 353, 355 (Tex. Crim. App.

2008).

54

Williams, 252 S.W.3d at 356.

55

Chadwick v. State, 309 S.W.3d 558, 561 (Tex. Crim. App. 2010); Faretta, 422 U.S. at 835.

56

Chadwick, 309 S.W.3d at 560 (citing Godinez v. Moran, 509 U.S. 389, 399 (1993)).

57

Faretta, 422 U.S. at 835.

CALVERT—41

dangers and disadvantages of self-representation, so that the record will establish that ‘he

knows what he is doing and his choice is made with eyes open.’”58 Therefore, the focus is

not on whether the defendant is competent to represent himself at trial.59 Instead, the focus

is on whether he is competent to choose to represent himself.60

But, even where the defendant is competent to choose to represent himself, the right

to self-representation is not absolute. In Indiana v. Edwards, the Supreme Court

acknowledged another limitation on the right to self-representation.61 In that case, the

defendant sought to represent himself at trial.62 The trial court denied the request based on

his lengthy record of psychiatric reports and schizophrenia diagnosis.63 The Supreme Court

granted certiorari to consider whether the Constitution permits states to deny a defendant his

right to self-representation “on the ground that the defendant lacks the mental capacity to

conduct his trial defense unless represented.”64 The Court held that the Constitution permits

58

Id. (quoting Adams v. U.S. ex rel McCann, 317 U.S. 269 (1942)).

59

Dunn, 819 S.W.2d at 523.

60

Id.

61

Indiana v. Edwards, 554 U.S. 164 (2008).

62

Id. at 169.

63

Id.

64

Id. at 174.

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states to do so. The Court discussed Godinez v. Moran,65 where it had held that the

competency standard for pleading guilty or waiving the right to counsel is not higher than the

competency standard for standing trial. The Court distinguished Godinez from the instant

case in part because Godinez “involved a State that sought to permit a gray-area defendant

to represent himself,” but the case before it involved a State that “den[ied] a gray-area

defendant the right to represent himself.” 66

First Prong: Competency to Represent Himself

In point of error eight, Appellant asserts that the trial judge erred as a matter of law

by finding that, despite Appellant’s mental health issues, he was competent to represent

himself. In support of his argument, he points to his pre-trial conduct and Dr. Dunn’s

psychological-evaluation report. Appellant asserts that, in light of that evidence, the trial

judge erred under Edwards in permitting him to proceed pro se. But Appellant’s reliance on

Edwards is misplaced.

The case here does not raise an Edwards issue. The trial court here permitted

Appellant to proceed pro se (up until that right was revoked for other reasons); it did not deny

him the right to represent himself. The language in Edwards is permissive rather than

mandatory: Edwards does not require a trial court to restrict the defendant’s right if the

65

Godinez, 509 U.S. at 398-99.

66

Edwards, 554 U.S. at 173.

CALVERT—43

defendant is incompetent to represent himself—it merely permits the restriction.67 Therefore,

the issue is not whether Appellant was competent to represent himself. Instead, the issue is

whether he was competent to choose to represent himself. Point of error eight is overruled.

Second Prong: Competency to Choose to Represent Himself

In point of error five, Appellant argues that he was incompetent to knowingly and

voluntarily waive his right to counsel. In support of his argument, he again points to his pre-

trial conduct and Dr. Dunn’s psychological-evaluation report. Appellant alleges that Dr.

Dunn diagnosed him with a number of mental health problems and that he could not

knowingly and voluntarily waive his right to counsel because he had a record of “known

psychiatric issues.” He contends that he was denied a fair trial because he was allowed to

represent himself under these circumstances.

“To raise the issue of competency by means of the defendant’s past mental health

history, there generally must be evidence of recent severe mental illness or bizarre acts by

the defendant or of [intellectual disability].”68 In Dunn v. State (a case unrelated to Dr. Dunn

who examined Appellant), the defendant challenged on appeal his competency to waive his

67

See Fletcher v. State, 474 S.W.3d 389, 400 (Tex. App.—Houston [14th Dist.] 2015, pet.

ref’d) (“Edwards decided whether the trial court improperly compelled a defendant diagnosed with

severe mental illness to proceed with counsel. Appellant asks us to hold that Edwards means not

solely that a trial court may insist on representation for defendants who are incapable of conducting

trial proceedings due to severe mental illness, but also that a trial court must do so. We disagree that

Edwards so holds.”); United States v. Berry, 565 F.3d 385, 391 (7th Cir. 2009) (Under Edwards, the

“Constitution may have allowed the trial judge to block [the defendant’s] request to go [at] it alone,

but it certainly didn’t require it.”).

68

Moore, 999 S.W.2d at 395.

CALVERT—44

right to counsel.69 Prior to trial, a doctor psychologically evaluated the defendant. The

doctor’s report described the defendant’s antisocial personality disorder but also concluded

that the defendant was competent to stand trial. We held that the defendant “did not present

nor was there any evidence in the record from any source” that the defendant was

incompetent to exercise his right to self-representation.70

Like the record in Dunn, the record in this case contains no evidence that Appellant

was incompetent to exercise his right to self-representation. Dr. Dunn observed that

Appellant’s prior records included diagnoses of several “disorders.” But Dr. Dunn ultimately

concluded that Appellant was competent to waive his right to counsel. Further, when

discussing whether Appellant would proceed pro se, both Appellant and the trial judge

acknowledged that there was no evidence raising an issue of incompetency. There is no

evidence of recent “severe mental illness or bizarre acts by [Appellant] or of moderate

retardation.”71 The trial judge did not abuse his discretion in finding that Appellant was

competent to knowingly and intelligently waive his right to counsel based on Dr. Dunn’s

report.

Likewise, Appellant’s disruptive conduct and numerous and lengthy pretrial motions

provide no evidence that he was incompetent to waive counsel. Appellant avers that his

69

Dunn, 819 S.W.2d at 520.

70

Id. at 521–22.

71

Moore, 999 S.W.2d at 395.

CALVERT—45

inappropriate conduct was “fully consistent with” his obsessive-compulsive personality

disorder. He contends that, “long before trial ever started,” the trial judge should have found

him incompetent, terminated his right to represent himself, and reinstated defense counsel.

He states that, as soon as he was allowed to proceed pro se, he “quickly filed” over 100

motions, “many of which were virtually incomprehensible, obsessed with detail, and

repetitive.” He notes that he was rigid in his behaviors and unable to adapt to external rules.

He acknowledges that he behaved disrespectfully toward the judge and opposing counsel

when he became frustrated. Appellant points out that his conduct while representing himself

pre-trial was so bad that the prosecutors presented it during the punishment phase as evidence

of his future dangerousness. But Appellant’s disruptive conduct as a pro se defendant is not

necessarily evidence of incompetence.

For example, in Moore v. State, the defendant argued on appeal that his repeated

outbursts during trial were evidence of incompetence.72 To illustrate, when one of the lawyers

asked a witness about the defendant’s booking photo, the defendant blurted out: “Does Jesus

Christ have long hair and a beard? You’ve seen pictures of Him. What makes the difference

between Jesus Christ and Charles Manson?”73 We held that, while the outbursts “were

inappropriate violations of court decorum, they do not constitute evidence of his inability to

72

Moore, 999 S.W.2d at 394-95.

73

Id. at 394.

CALVERT—46

communicate with counsel.”74 “If such actions were probative of incompetence, one could

effectively avoid criminal justice through immature behavior.” 75

Here, although some of Appellant’s motions are confusing and peculiar, most are

topical and logically related to the proceedings. They reflect that Appellant had familiarized

himself with many potentially relevant laws. He relied on his own understanding of the laws

he believed to be relevant, and he was extremely careful not to waive any potential errors.

Further, Appellant points to no case law, and we have found none, supporting his position

that disruptive behavior resulting from a personality disorder renders a defendant

incompetent to choose to represent himself. In fact, our cases suggest the contrary.76 The

trial judge did not abuse his discretion when he initially determined that Appellant was

competent to choose to represent himself, and at no point during the pretrial proceedings did

his conduct require the judge to revisit this determination.

Further, when a defendant exercises his right to self-representation at trial, an

appellate court’s analysis generally focuses on whether the defendant was aware of the

dangers and disadvantages of self-representation.77 Appellant does not challenge on appeal

the trial judge’s admonishments. And our review of the record shows that the

74

Id. at 395.

75

Id.

76

See, e.g., Moore, 999 S.W.2d at 395; Dunn, 819 S.W.2d at 521-22.

77

Johnson v. State, 760 S.W.2d 277, 278 (Tex. Crim. App. 1988).

CALVERT—47

admonishments were sufficient. The judge thoroughly reviewed the trial process with

Appellant, and Appellant repeatedly indicated that he understood it. Given the option to

proceed with unwanted counsel or to represent himself—and after being thoroughly and

repeatedly admonished as to the dangers and disadvantages of proceeding pro se—Appellant

persistently asserted his right to self-representation. There is “nothing unfair in putting an

accused to this choice, so long as the trial court is satisfied he is competent to make it, and

that he does so informedly and with eyes open.”78 Point of error five is overruled.

Third Prong: Lack of Adversarial Hearing and Independent Counsel – Competence

In point of error six, Appellant complains that the trial judge erred when he did not

conduct an adversarial hearing with independent counsel to ensure that Appellant was

competent to waive counsel and represent himself despite his documented mental health

problems. He complains that his hearing was “entirely non-adversarial,” and the result was

“disastrous.”

Appellant cites no authority for his assertion that the trial judge erred by failing to

conduct an adversarial proceeding with independent counsel. Therefore, this point of error

is inadequately briefed.79 In any event, after making a preliminary inquiry, the trial judge

found no evidence that Appellant was incompetent to waive counsel. And, as discussed

78

See Burgess v. State, 816 S.W.2d 424, 429 (Tex. Crim. App. 1991).

79

See TEX . R. APP . P. 38.1(i) (“The brief must contain a clear and concise argument for the

contentions made, with appropriate citations to authorities and to the record.”).

CALVERT—48

above, Appellant need not be competent to represent himself, only to choose to represent

himself.80 The judge’s determination is supported by the record, which contains no evidence

of severe mental illness and includes Dr. Dunn’s report concluding that Appellant was

competent to stand trial. The trial judge is “best able” to make that determination.81 Point

of error six is overruled.

Fourth Prong: Waiver of Counsel – Voluntariness

In point of error seven, Appellant asserts that the trial judge erred in finding a

voluntary waiver of counsel because the judge did not adequately address his complaints

about court-appointed counsel or consider alternatives to pro se representation. Appellant

contends that he made it clear he did not want to waive counsel, and therefore the trial judge

should not have found a waiver. He avers that his qualified waiver of the right to counsel

was not intelligent, free, and voluntary, and that the trial judge committed structural error by

allowing him to proceed pro se. He argues that such error is not subject to a harm analysis,

and therefore, he is entitled to a new trial.

A defendant is not entitled to appointed counsel of his choice.82 A defendant who is

displeased with appointed counsel must either show adequate cause for a change of

appointed counsel, accept the assigned attorney, or effectively waive the right to counsel and

80

See Dunn, 819 S.W.2d at 523

81

See Edwards, 554 U.S. at 177.

82

See Dunn, 819 S.W.2d at 520.

CALVERT—49

represent himself.83 Here, as discussed above, Appellant never showed adequate cause for

a change of counsel. Thus, when Appellant did not want to accept appointed counsel, his

remaining option was to waive the right to counsel and represent himself. Contrary to

Appellant’s assertion, the trial judge’s refusal to appoint new counsel did not render his

waiver involuntary. The trial judge thoroughly admonished Appellant of the hazards of

self-representation. The judge refused to accept Appellant’s waiver unless it was

“unconditional and unequivocal.” Appellant ultimately agreed that his waiver was without

qualification. Likewise, Appellant’s motion to revoke his pro se status did not render his

waiver involuntary. “A defendant may not use his right to counsel to manipulate the court

or to delay his trial.”84 Appellant began representing himself in February 2014. He filed his

contingent motion to revoke his pro se status the day before trial in August 2015. Yet long

before August 2015 Appellant knew the factual bases that he asserted in support of his need

for counsel—specifically, the lack of privacy in jail and his difficulties in addressing alleged

misconduct, reviewing discovery, and contacting witnesses.

Appellant knowingly and voluntarily waived his right to counsel; his waiver was

unequivocal. Point of error seven is overruled.

COMMENTS ON PRO SE STATUS

83

Thomas v. State, 550 S.W.2d 64, 68 (Tex. Crim. App. 1977); Cain v. State, 976 S.W.2d

228, 235 (Tex. App.—San Antonio 1998, no pet.).

84

See Culverhouse v. State, 755 S.W.2d 856, 861 (Tex. Crim. App. 1988).

CALVERT—50

In points of error nine and nineteen, Appellant complains that both the State and the

trial judge made inappropriate comments regarding his pro se performance and undermined

his efforts to represent himself. This, he asserts, violated his right to proceed pro se under

the Sixth Amendment as well as his fundamental right to a fair trial under the Fifth

Amendment.

Appellant raises six challenges: (1) the prosecutor disparaged Appellant’s conduct as

a pro se litigant and took advantage of his pro se status; (2) the trial judge made negative

expressions before the jury concerning Appellant’s pro se performance; (3) the trial judge

routinely and erroneously overruled Appellant’s objections; (4) the State “used” Appellant’s

frustrated reactions to these erroneous rulings as evidence against him; (5) sheriff’s deputies

had inappropriate and prejudicial interactions with Appellant in the jury’s presence; and (6)

the cumulative effect of the errors resulted in a deprivation of his right to counsel including

the right to proceed pro se. We will address each of these complaints in turn.

(1) Disparaging Appellant’s Pro Se Status

Appellant complains of five specific instances in which, he asserts, the prosecutor

disparaged his conduct as a pro se litigant. Appellant made no objections to the first three.85

85

The first three complained-of instances are the prosecutor’s statements that: Appellant

“makes these ridiculous-looking faces”; Appellant “doesn’t care what the Court says or what the

rules are”; and, “In [Appellant’s] zero years of trying cases in the courtroom – and I’m just trying

to say – we object to his incessant objection.”

CALVERT—51

Therefore, he forfeited error as to those.86 Regarding the two instances as to which he

preserved error, Appellant alleges the following:

(a) The prosecutor engaged in a running, derogatory commentary when she

questioned Detective Shine about Appellant’s attitude during his videotaped

interview with Shine and another investigator; and

(b) The prosecutor presented, at the punishment phase, evidence of a pretrial

incident in which Appellant had been accused of stealing exhibits, and then

published an audiovisual recording of Appellant’s bad behavior during the

officers’ search for those exhibits.

We address each of these in turn.

(a) Running, Derogatory Commentary

At trial, the prosecutor played the audiovisual recording of Appellant’s interview

following his arrest. The prosecutor then elicited Shine’s opinion testimony concerning

Appellant’s attitude during the interview—leading with, at times, the prosecutor’s own

commentary or Shine’s previous statements. Shine agreed with the prosecutor that Appellant

treated the interview as a “big game,” was sometimes sarcastic and mocking, was callous,

was a smart-aleck and had a “cold-blooded heart.” At one point during Shine’s testimony,

the prosecutor stated: “[Jelena’s] laying in a refrigerator unit at [the medical examiner’s

86

See TEX . R. APP . P. 33.1(a); see Coble v. State, 330 S.W.3d 253, 282 (Tex. Crim. App.

2010).

CALVERT—52

office] in Dallas . . . and [Appellant’s] talking to you about ripping the grate down to prove

what a bad system—.” 87

Appellant complains here that his objections to those statements were improperly

overruled.88 Appellant’s trial objections that comport with his claims on appeal were based

on Rules 403, 404(b), and 701. His objections to “inappropriate comment by the

prosecution” and “misrepresentation of the evidence” also comport with his claims on

appeal.89 Therefore, we will consider the statements in regards to those objections.

Under Rule 701 of the Texas Rules of Evidence, a lay witness can testify in the form

of an opinion if the opinion is (a) rationally based on the witness’s perceptions, and (b)

helpful to the clear understanding of the testimony or the determination of a fact in issue.

Even if a lay opinion meets both requirements under Rule 701, a trial court has discretion

under Rule 403 of the Texas Rules of Evidence to exclude the testimony if its probative value

87

Deputies carried Appellant into the interview room, with his arms and legs secured to a

restraint chair. Appellant and investigators discussed that he was secured in that manner because

he had removed a metal grate from his jail cell wall, and then he brandished it at a deputy who

attempted to enter his cell. Appellant told investigators that he pulled the grate off the wall because

he “was showing it was a weakness in their security system. . . . Their security system sucks.”

88

Appellant also complains that the prosecutor elicited Shine’s testimony that, during the

interview, Appellant indicated that treating his bruised leg was more important than talking about

Jelena’s death. Appellant also complains about Shine’s testimony that, at the time of the interview,

Shine believed Appellant had killed Jelena. Appellant did not object at trial to this testimony. See

TEX . R. APP . P. 33.1; see also Yazdchi v. State, 428 S.W.3d 831, 844 (Tex. Crim. App. 2014) (“For

a party to preserve a complaint for appellate review, the complaining party must make a specific

objection and obtain a ruling on the objection.”).

89

See TEX . R. EVID . 403, 404(b), and 701.

CALVERT—53

is substantially outweighed by a danger of unfair prejudice or misleads the jury. “The

probative force of evidence refers to how strongly it serves to make the existence of a fact

of consequence more or less probable.”90 Relevant evidence is presumed to be more

probative than prejudicial.91 Evidence is unfairly prejudicial if it has the capacity to lure the

fact-finder into declaring guilt on a ground other than proof specific to the offense charged.92

Further, the judge has substantial discretion in balancing probative value and unfair

prejudice.93 We will uphold the judge’s ruling as long as it is within the zone of reasonable

disagreement.94

First, Shine’s testimony was admissible. Here, the jury saw the recording of the

interview before hearing Shine’s commentary about it. Appellant sat with his back to the

camera during most of the interview. Shine, who spoke with Appellant face-to-face,

personally viewed his facial expressions and demeanor during the interview. Therefore,

Shine’s Rule 701 opinion testimony was probative of Appellant’s attitude during the

interview; it was rationally based on Shine’s perception and helpful to clearly determining

90

Gonzalez v. State, 544 S.W.3d 363, 372 (Tex. Crim. App. 2018).

91

Santellan v. State, 939 S.W.2d 155, 169 (Tex. Crim. App. 1997).

92

Manning v. State, 114 S.W.3d 922, 928 (Tex. Crim. App. 2003).

93

Powell v. State, 189 S.W.3d 285, 288 (Tex. Crim. App. 2006).

94

Manning, 114 S.W.3d at 343-44.

CALVERT—54

a fact in issue.95 And the evidence was not unfairly prejudicial given that the interview itself

was in front of the jury; the jury itself was able to observe Appellant’s inflections and

demeanor. Thus, the trial judge acted within his discretion when he concluded that this Rule

701 testimony was admissible under Rule 403.96

Second, the prosecutor’s comment about Jelena “laying [sic] in a refrigerator unit”

was a reasonable inference from the evidence. The prosecutor made this statement just after

Shine testified that Jelena’s body was in the medical examiner’s cooler while Shine was

questioning Appellant in Louisiana. Further, the evidence established that Jelena’s body had

been transported to the medical examiner’s office and placed in a cooler not long after 4:43

p.m. on October 31, 2012, and it was removed for examination at 7:00 a.m. on November 1.

Appellant removed the grate from his jail cell wall some time after his arrest around

11:00 p.m. on October 31st, but prior to discussing his removal of the grate with investigators

when the interview began around 3:00 a.m. on November 1st. Appellant talked about

removing the grate at the beginning of this interview, while he was still secured in the

95

See, e.g., Garcia v. State, 126 S.W.3d 921, 925 (Tex. Crim. App. 2004) (concluding that

officers’ testimony describing the appellant as “cocky,” “very calm, very matter-of-fact,” “very

nonchalant, very laid back and calm,” and at times “arrogan[t],” was evidence of his lack of

conscience or remorse); Motilla v. State, 78 S.W.3d 352, 359 (Tex. Crim. App. 2002) (stating that

an appellant’s reluctance to answer questions in his recorded statement to investigators demonstrated

a lack of remorse, and the jury could have regarded his attitude of defiance and apathy as evidence

of his intent to kill).

96

We also note that similar testimony had already been admitted without a Rule 701

objection. See Coble, 330 S.W.3d at 282 (stating that erroneously admitted evidence will not result

in reversal when the same evidence was received elsewhere without objection).

CALVERT—55

restraint chair. The trial judge did not abuse his discretion by overruling Appellant’s

objection to “misrepresentation of the evidence.”

To the extent that Appellant objected to the rest of the prosecutor’s comments during

examination, we need not determine whether the judge erred by overruling these objections

because the prosecutor’s comments were harmless. As an initial matter, they were not

evidence; the prosecutor’s parroting of Shine’s own words while framing questions, for

instance, was gratuitous but innocuous.97 And the jury was instructed that the lawyers’

statements were not evidence.98 Further, jurors had viewed the recording of the interview

and could judge for themselves whether the prosecutor’s and Shine’s characterizations were

97

See, e.g., Madden v. State, 242 S.W.3d 504, 515 (Tex. Crim. App. 2007) (“[Q]uestions on

cross-examination cannot, by themselves, raise a disputed fact issue.”).

98

Specifically, the jury charge stated:

Remember that any statements, objections, or arguments made by the lawyers are not

evidence. The function of the lawyers is to point out those things that are most

significant or most helpful to their side of the case, and in so doing to call your

attention to certain facts or inferences that might otherwise escape your notice. In the

final analysis, however, it is your own recollection and interpretation of the evidence

that controls the case. What the lawyers say is not binding upon you.

CALVERT—56

accurate.99 We have fair assurance that error, if any, did not affect the result because the

evidence of Appellant’s guilt was overwhelming.100

(b) Evidence Involving Stolen Exhibits

We next turn to Appellant’s complaint about the prosecutor putting on evidence that

he stole exhibits from the courtroom. Following a pretrial hearing, the court coordinator

raised the subject of the missing exhibits. Appellant acknowledged that, a day before the

hearing, he had received a request to look for those exhibits. He told the judge that he did

not have them but said he would look again. He asked the judge to give him until the

following Tuesday to produce them because his papers were in disarray. He stated that it

would be hard for him to find them, but he was “sure they’ll turn up if I have them; if not,

then it’s not my responsibility.”

Pointing out that Appellant often shredded papers in his cell, the prosecutor requested

that the trial judge order the sheriff’s office to search the cell before Appellant “shred[ded]

[the exhibits].” Accordingly, the judge ordered the sheriff to take action that same day.

99

Cf. Fairow v. State, 943 S.W.2d 895, 899 (Tex. Crim. App. 1997) (“[W]hile a witness

cannot possess personal knowledge of another’s mental state, he may possess personal knowledge

of facts from which an opinion regarding mental state may be drawn. The jury is then free to give

as much or as little weight to the opinion as it sees fit.”); see, e.g, Jackson v. State, 822 S.W.2d 18,

30 (Tex. Crim. App. 1990) (stating that an officer who witnessed a defendant giving a statement to

another officer could testify to his opinion that the defendant gave the statement voluntarily because

such testimony was a “mere shorthand rendering of the facts” demonstrating the defendant’s mental

attitude or emotional state).

100

Motilla, 78 S.W.3d at 357 (“‘[T]he presence of overwhelming evidence supporting the

finding in question can be a factor in the evaluation of harmless error.’”) (quoting Wesbrook v. State,

29 S.W.3d 103, 119 (Tex. Crim. App. 2000)).

CALVERT—57

Specifically, the sheriff’s deputies would give Appellant another opportunity to search his

cell for the exhibits, but if he still did not produce them, then the deputies would search for

them.

The recording of the deputies’ search for these exhibits captured Appellant’s

uncooperative conduct and refusal to search for the exhibits.101 The deputies carried

Appellant’s papers to a room with tables and chairs. Appellant was present throughout the

search. He repeatedly refused the deputies’ offers to let him go through his paperwork

himself, even as he complained that they were violating his rights by looking at his work

product, getting his materials out of order, and wrinkling his papers.102

Lieutenant John Shoemaker located the missing exhibits on top and inside of a book

that had been placed inside an envelope. When Shoemaker informed Appellant that they

were taking the envelope, Appellant asserted that they had no authority to do that and could

not take his personal property. While the deputies were carrying Appellant’s papers back to

his cell, he displayed further disruptive conduct.103

101

Appellant argued and wrestled with deputies, saying, “I can’t allow you to take my work

product.” He accused them of conducting an illegal search and told them that they were “essentially

letting me free now” because an appellate court would conclude that the search was illegal.

102

He also repeatedly accused Deputy Sheffield of “resequencing [his] paperwork” and

commented, “I understand it’s after your bed time.”

103

Specifically, Appellant demanded, “I want all that back in my cell the way you got it.”

Although he had not looked through his papers, he complained that items were missing. As deputies

unloaded his papers into his cell, he complained that someone had gone through his clothes while

he was gone. He was upset that deputies were placing his papers on the floor (even though they had

(continued...)

CALVERT—58

At a pretrial hearing four days later, the court reporter identified the recovered

exhibits. The trial judge denied Appellant’s motion to suppress them as the fruits of an

illegal search. Over Appellant’s objection, the trial judge admitted the audiovisual recording

of the search.

The trial judge noted the orderly way in which these exhibits had been placed inside

the book and envelope, with the lists on top of the book and the photos between the pages.

The judge observed that this placement showed that the person who handled them was “very

aware that these were exhibits.” He stated that Appellant would have known that these

materials were exhibits when he took them; he refused opportunities to search for them; and

the deputies who searched for them properly followed the judge’s order. The judge

concluded, “[T]he Court finds [Appellant] knowingly took these photographs and these two

documents, put them in the brown envelope, and took them back to [his] cell.” The judge

held Appellant in contempt for his “deliberate actions in secreting these exhibits.” The judge

imposed the maximum sentence of six months and warned Appellant that he was very close

to rescinding his pro se status.

Appellant now avers that, if he had been treated like an attorney and given a chance

to look for the missing exhibits, this incident would not have occurred and he would not have

displayed poor conduct. However, the record reflects that Appellant refused at least two

103

(...continued)

been on the floor before the search began), and he accused them of stepping on the papers and

wadding them up. He stated that he would tell the judge what they had done to his paperwork.

CALVERT—59

opportunities to look for the exhibits. To the extent that Appellant complains that the judge

should have given him more time to search, the record shows that he did not make use of the

time he had, and that the trial judge reasonably ordered a search that provided Appellant with

an opportunity to produce the exhibits while minimizing his opportunity to destroy them.

Further, Appellant’s disruptive and disrespectful conduct during the search was relevant

punishment-phase evidence demonstrating that he could not or would not control himself

even when he knew that his conduct was being recorded.104 We reject Appellant’s complaint

about the prosecutor’s use of this evidence during the punishment phase.

(2) The Judge’s Negative Comments on Appellant’s Pro Se Performance

Appellant argues that, before the jury, the trial judge expressed his unfavorable views

of Appellant’s pro se performance.105 A criminal defendant has a due process right to

proceed before an impartial court.106 But a court’s efforts at courtroom administration are

not a valid basis for finding judicial bias, even if they include “expressions of impatience,

104

See TEX . CODE CRIM . PROC. art. 37.071, § 2(a)(1).

105

The record shows that Appellant did not object to any of the judge’s statements that he

now complains about. However, when a judge comments improperly on the weight of the evidence

or conveys to the jury his opinion of the case, this error is not forfeited on appeal by a party’s

inaction at trial. See Proenza v. State, 541 S.W.3d 786, 798-99 (Tex. Crim. App. 2017).

106

See Brumit v. State, 206 S.W. 3d 639, 645 (Tex. Crim. App. 2006) (“Due process requires

a neutral and detached hearing body or officer.”); see also Tumey v. Ohio, 273 U.S. 510, 523, 535

(1927).

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dissatisfaction, annoyance, and even anger.”107 Further, “opinions formed by the judge on

the basis of facts introduced or events occurring in the course of the current proceedings, or

of prior proceedings, do not constitute a basis for a bias or partiality motion unless they

display a deep-seated favoritism or antagonism that would make fair judgment

impossible.” 108

To constitute reversible error, a trial judge’s comment must be reasonably calculated

to benefit the State or prejudice the defendant’s rights.109 We will reverse the judgment and

remand the case for a new trial “when the court has misdirected the jury about the law or has

committed some other material error likely to injure the defendant’s rights.” 110

Appellant complains about the trial judge’s statement: “I don’t want to use the word

‘waste,’ but I don’t want to take up any more of the jury’s time on this.” He asserts that this

comment expressed the trial judge’s opinion on Appellant’s cross-examination of L.C.’s

therapist, Judith Lester.

The record shows that, after Appellant’s cross-examination of Lester, the parties and

the judge began discussing, in the jury’s presence, whether Lester would be finally excused

107

Liteky v. United States, 510 U.S. 540, 555-56 (1994).

108

Id. at 555.

109

Becknell v. State, 720 S.W.2d 526, 531 (Tex. Crim. App. 1986).

110

TEX . R. APP . P. 21.3(a)(b).

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or subject to recall. Lester explained that she had rearranged her clinical practice schedule

in order to travel from Ohio to testify. The trial judge then stated:

Okay. All right. Well, you’re here now. Let me take it -- I don’t want to use the

word “waste,” but I don't want to take up any more of the jury’s time on this,

because I’ll take it up outside their presence without them sitting here listening

to it, since it's a matter between the Court and defendant and State.

This record does not support Appellant’s position that the judge’s comment conveyed

displeasure with his performance as a pro se defendant. In context, it is apparent that the

judge used the term “waste” in reference to taking up the jury’s time with the discussion of

Lester’s schedule. The judge made the comment in the course of managing trial logistics and

scheduling. The comment did not bear on the presumption of innocence or vitiate the

impartiality of the jury.111

Appellant next contends that, as the judge excused the jury, the judge implied that

Appellant was responsible for the slow pace of the trial. Specifically, the judge advised the

jury that he had hearings the following morning (“a succession of hearings in the morning,

or what you might call -- it wouldn’t surprise you -- a lengthy hearing in the morning”) with

multiple witnesses. Because those hearings were on the Friday before Labor Day, the judge

told the jury to return the following Tuesday. The judge then stated:

111

See id.; see also, e.g., Sensley v. Albritton, 385 F.3d 591, 599 (5th Cir. 2004) (noting that

an appellate court reviewing a decision under 28 U.S.C. § 455(a), which requires the disqualification

of a federal judge “in any proceeding in which his impartiality might reasonably be questioned,”

must inquire into how all of the facts “would appear to a ‘well-informed, thoughtful and objective

observer, rather than the hypersensitive, cynical, and suspicious person’”) (quoting United States v.

Jordan, 49 F.3d 152, 156 (5th Cir. 1995)).

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That way I don’t run the chance just wasting your time sitting in the jury room

because we have multiple witnesses to hear in the morning outside your

presence. And basically what you’ve seen so far, you probably understand

why I’m anticipating it will take a while.

In context, the judge’s comment to the jury about “what you’ve seen so far” referred

to the jury having already spent time waiting in the jury room during hearings that took “a

while.” Further, the judge’s use of the word “waste,” in context, referred to the jurors

potentially wasting their time by waiting in the jury room while the judge held the hearings.

This record does not support Appellant’s characterization of the judge’s statement as an

unfavorable comment on his pro se representation.

(3) Overruling Appellant’s Objections

Appellant complains that the trial judge routinely overruled his objections, even when

they were well-founded. He first complains of an instance in which the prosecutor asked

Officer Cummings to describe how he had spent the day of the offense—that specific

Halloween—with his own daughter. Appellant avers that the trial judge overruled his

objection without giving him an opportunity to make a record of the ground, stating, “Listen

to me. Listen to me. Your objection to that question is overruled. That’s the Court’s

ruling.” Cummings then testified that he spent part of that Halloween evening with his

daughter, “the first Halloween my child was walking”; his ex-wife had brought her to the

police station for trick-or-treating. The prosecutor stated, “And after that, you apprehended

this defendant. It’s significant because you put your life on the line after being with your

CALVERT—63

little girl.” Cummings agreed. The prosecutor added, “I guess you saw little [L.C.] . . . . That

kind of hits home with you when you have a little girl like you did.” Cummings answered,

“It does.”

This evidence was not relevant and therefore was inadmissible.112 But the error was

harmless. By the time the prosecutor questioned Cummings about Halloween, Appellant

himself had elicited Cummings’s emotional response to Appellant endangering L.C.113 The

error in admitting Cummings’s testimony about how he spent Halloween with his daughter

was harmless.114

Appellant next complains about an exchange in which the prosecutor asked Detective

Williams, “If you had to guess who that wallet belonged to, who would it be?” The record

shows that before the prosecutor asked this question, Williams identified the wallet as the

one that he had found on the floor of Appellant’s car, and he established the chain of custody.

The prosecutor then asked Williams, “[W]hose wallet was that?” Williams responded, “It

contains a Texas driver’s license belonging to [Appellant].” The prosecutor then offered the

112

TEX . R. EVID . 402 (“Irrelevant evidence is not admissible.”).

113

On cross-examination, Appellant asked Cummings, “You have pretty strong feelings about

this case, don’t you?” Cummings asked him what he meant. Appellant stated, “Well, you testified

to the way it affected you, the way you felt about the person you identified as [L.C.] and so forth,

correct?” Cummings replied, “I do feel strongly about how you endangered your child, yes.”

114

See, e.g., Gardner v. State, 306 S.W.3d 274, 293 (Tex. Crim. App. 2009) (“[A]ny possible

error in the admission of State’s Ex. 36 was harmless because appellant affirmatively stated ‘No

objection’ when a sample cut from that robe was introduced into evidence as a comparison sample

to the red fibers found in the white truck appellant had borrowed from his brother-in-law.”).

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wallet and its contents into evidence “for all purposes.” The trial judge admitted the wallet

over Appellant’s objections.

The prosecutor then asked Williams if anyone in the courtroom “fit the photograph”

on the driver’s license found in the wallet, and Williams pointed to Appellant. Williams

testified that the wallet also contained a Texas A&M alumni card with Appellant’s name, as

well as a voting card with Appellant’s name and address. The prosecutor then asked, “If you

had to guess who this wallet belonged to, who would it be?” Appellant objected based on

speculation, which the trial judge overruled. Williams testified, “I wouldn’t have to guess.

I know exactly who it belongs to.”

The prosecutor’s phrasing, “If you had to guess who this wallet belonged to,” may

have been somewhat flippant, but it did not invite speculation. “Speculation is the mere

theorizing or guessing about the possible meaning of the facts and evidence presented.” 115

The prosecutor was not asking Williams to theorize or guess about facts or evidence outside

his personal knowledge.116 Therefore, the trial judge did not err in overruling Appellant’s

objection. In addition, Appellant avers that, in three other instances, the trial judge

overruled his proper objections. He provides record cites without elaboration. He also refers

generally to “numerous other, similar examples” of the prosecutor taking unfair advantage

115

Gross v. State, 380 S.W.3d 181, 188 (Tex. Crim. App. 2012),

116

See Fairow, 943 S.W.2d at 902 (“Personal knowledge is required because testimony

without personal knowledge is pure speculation and conjecture.”).

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of his pro se status and the trial judge overruling his proper objections. We decline to make

Appellant’s arguments for him regarding the “numerous other examples” or to search the

record for additional instances of potential error.117

(4) Use of Appellant’s Courtroom Conduct as Evidence Against Him

Appellant also complains that the State improperly “used” his negative reactions to

the trial judge overruling his objections as punishment-phase evidence against him.

However, Appellant’s reactions during the proceedings could properly be considered as

punishment-phase evidence because they demonstrated his inability or unwillingness to

control his temper and conform his conduct to the rules of the court.118

(5) Deputies’ Interactions with Appellant

Appellant complains about the sheriff’s deputies’ interactions with him in the jury’s

presence. Specifically, Appellant asserts that, because he failed at times to “stand” or “sit”

promptly while trying to make objections, he was often physically pushed down by

117

See TEX . R. APP . P. 38.1(i) (“The brief must contain a clear and concise argument for the

contentions made, with appropriate citations to authorities and to the record.”); see also, e.g., Wyatt

v. State, 23 S.W.3d 18, 23 n.5 (Tex. Crim. App. 2000) (“[The] appellant points us to nothing in the

record, makes no argument, and cites no authority to support this proposition. We will not make

appellant's arguments for him and hold the allegation to be inadequately briefed.”).

118

See, e.g., Coble, 330 S.W.3d at 267 (citing evidence of the appellant’s courtroom conduct

of turning around to stare at a witness and repeatedly giving her a “weird evil grin” as evidence of

his future dangerousness); Martinez v. State, 327 S.W.3d 727, 736-37 (Tex. Crim. App. 2010)

(finding that evidence that the appellant threatened a witness as she walked past him in the

courtroom was admissible under Rules 401 and 403).

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courtroom deputies, in front of the jury, and then ultimately (and wrongfully as discussed

above) subjected to the electric shock outside the jury’s presence.

But, as we stated above, a court’s efforts at courtroom administration are not a valid

basis for finding judicial bias, even if they include “expressions of impatience,

dissatisfaction, annoyance, and even anger.”119 And the record reflects that Appellant’s

conduct caused any “friction” that was apparent to the jury. He ignored the judge’s

instructions and repeatedly interrupted witnesses’ testimony even after the judge had ruled

it was admissible. For example, while cross-examining his sister Debbie Campbell,

Appellant asked her whether she, personally, had ever seen him physically abuse his ex-

wives. She responded that she had not, although she had seen the after-effects of the abuse.

On redirect examination, the prosecutor asked Campbell about an incident in which

Appellant had physically abused Adams. When Appellant objected to hearsay, the prosecutor

argued that Appellant’s cross-examination had opened the door to the State’s questions about

Appellant’s abuse of his ex-wives. The trial judge agreed and overruled Appellant’s

objection.

The judge then informed Appellant that he did not have to keep objecting in order to

preserve error. However, every time Campbell began to answer a question, Appellant

objected again, repeating the same grounds each time. He further interrupted Campbell’s

testimony to object on additional grounds. The judge instructed Appellant that once the

119

Liteky, 510 U.S. at 555-56.

CALVERT—67

judge ruled, Appellant needed to let Campbell answer the question. But Appellant continued

objecting, and this exchange between Appellant and the trial judge repeated itself multiple

times, with the trial judge instructing Appellant to “[h]ave a seat.”

Appellant then objected to “this person, [Officer] Sheffield, touching me right now.”

The judge overruled this objection and Appellant again objected. The judge then held a

recess to discuss the matter outside the jury’s presence. The judge then stated:

[Appellant], I’m warning you again that Officer Sheffield is following the

Court’s instructions that once I rule, you know you are supposed to sit down.

. . .[S]it down when the Court rules, and [the jury] won’t see anything but you

sitting down after I rule. You’re forcing this by continuing on. And I’m

instructing you again, when I rule, that’s it.

Once the jury returned, Appellant, after another objection, finally allowed Campbell to

complete her answer to the prosecutor’s question.

This part of the trial record documents just one of many instances in which

Appellant’s own defiant and disruptive behavior precipitated the deputies’ conduct.

Appellant’s complaint is without merit.

(6) Cumulative Effect

Appellant argues that the cumulative effect of these alleged errors resulted in a

deprivation of his right to counsel, including the right to proceed pro se. He states that,

because impairments of the right to counsel and other errors involving the fundamental

fairness and integrity of the trial itself are “structural,” he is entitled to a new trial.

CALVERT—68

We reject Appellant’s characterization of these alleged errors, most of which concern

evidentiary rulings, as violations of his right to proceed pro se or any other constitutional

right. Many errors concerning the erroneous admission of the State’s evidence or the

erroneous exclusion of a defendant’s evidence are non-constitutional.120

We also reject Appellant’s characterization of these alleged errors as “structural.”

Structural errors “affect the ‘framework within which the trial proceeds.’” 121 Only “a very

limited class” of errors is structural,122 which does not include the erroneous admission of

evidence We reiterate that a pro se defendant is bound by the same rules and

requirements and is subject to the same risks and pitfalls as a professional attorney.123 Here,

the trial judge admonished Appellant at length regarding these issues. Having found no

structural error, and having determined that any other error was harmless, we conclude that

the cumulative effect is likewise harmless. Points of error nine and nineteen are overruled.

REVOCATION OF PRO SE STATUS

In point of error ten, Appellant asserts that, to the extent he had a constitutional right

to proceed pro se, the trial judge terminated his right for inadequate reasons. Appellant

contends that his remark to the judge, “I’m sure the Court very much enjoyed that”—after

120

Easley v. State, 424 S.W.3d 535, 540 (Tex. Crim. App. 2014).

121

Marcus, 560 U.S. at 263 (quoting Johnson v. United States, 520 U.S. 461, 468 (1997)).

122

Lake v. State, 532 S.W.3d 408, 413 (Tex. Crim. App. 2017) (quoting United States v.

Davila, 569 U.S. 597, 611 (2013)).

123

Williams, 252 S.W.3d at 356; Johnson, 760 S.W.2d at 279.

CALVERT—69

being subjected to “a severe electric shock”—did not justify revoking his right to self-

representation. He urges this Court to reverse his conviction and death sentence based on the

denial of his right to self-representation.

Generally, a defendant should be allowed to proceed pro se if the defendant clearly,

unequivocally, unconditionally, and timely asserts his right to self-representation; knowingly

and intelligently maintains his desire to proceed pro se after being warned of the

consequences; and does not assert this right in order to disrupt or delay the proceedings.124

However, “[t]he right of self-representation is not a license to abuse the dignity of the

courtroom” or to disregard relevant rules of procedural and substantive law.125 “[T]rial

judges confronted with disruptive, contumacious, stubbornly defiant defendants must be

given sufficient discretion to meet the circumstances of each case.”126 “[T]he trial judge may

terminate self-representation by a defendant who deliberately engages in serious and

obstructionist misconduct.” 127

Here, in explaining his decision to revoke Appellant’s pro se status, the trial judge

pointed to Appellant’s statement, “I’m sure the Court very much enjoyed that,” as well as all

of his prior disruptive conduct. Although the judge pointed to all of Appellant’s prior

124

See, e.g., Hubbard v. State, 739 S.W.2d 341, 343-15 (Tex. Crim. App. 1987); Blankenship

v. State, 673 S.W.2d 578, 584-85 (Tex. Crim. App. 1984).

125

Faretta, 422 U.S. at 834n.46.

126

Illinois v. Allen, 397 U.S. 337, 343 (1970).

127

Faretta, 422 U.S. at 834 n.46 (citing Allen, 397 U.S. at 343).

CALVERT—70

disruptive conduct, we discuss Appellant’s disruptive conduct only on the day that the judge

revoked his pro se status. Suffice it to say that Appellant’s conduct on that day was

consistent with his conduct on previous days.

After Jelena’s murder but prior to Appellant’s arrest, officers searched Appellant’s

mother’s house (where Appellant also lived) without a warrant. Appellant filed a pretrial

motion to suppress any evidence seized from the house, and the prosecutor agreed not to

present any such evidence. Yet, on the day the judge revoked Appellant’s pro se status, and

after previous failed attempts at questioning other investigators about the search of his

mother’s house, Appellant attempted to question Shine about the search. When Appellant

first asked Shine whether investigators had entered Appellant’s mother’s house, the

prosecutor objected. The trial judge sustained the objection. Appellant responded that the

trial judge had denied his motion to suppress, but the judge reiterated that the prosecutor’s

objection was sustained.

Appellant stated that, “I think the jury needs to know the truth, your honor, as far

as—.” The judge interrupted him, stating that “the truth” was that the State had agreed to his

motion to suppress the search of his mother’s house. Appellant argued that the State had

never agreed and that the trial judge had denied his motion. The prosecutor responded that

the State had agreed to the motion.

The judge admonished Appellant that he was sustaining “any objection and anything

related to anything taken out of your mother’s house,” and directed Appellant to ask another

CALVERT—71

question. But Appellant again asked Shine about the search, the prosecutor again objected,

and the judge again sustained the objection. Yet Appellant persisted in his questioning. The

trial judge again ordered Appellant not to raise the search of his mother’s house before the

jury. Appellant responded that his question had “nothing to do with [his] motion to

suppress.” At that point, the judge excused the jury.

Appellant again asserted that the State never agreed to his motion. The judge again

admonished Appellant about arguing with him, stating:

You’re right in that category of a defendant that the Court can terminate your

right to represent yourself. I don’t really want to do that, but you’re putting me

in a position where I can’t go on like this. We can’t get this case finished in

front of the jury with you conducting yourself in this manner. Do you

understand the Court’s ruling?

Appellant responded, “I would move the Court to recuse himself then.” The judge

stated that there was no basis for recusal, and “[e]verything taking place right now is [what]

you [are] generating and causing.” He added, “These deputies are not going to put up with

you. You know the remedy they have got. And if you think somehow in your mind if they

deploy that remedy there is going to be a mistrial, you can forget it.”

The judge reiterated that Appellant must not mention his mother’s house. The trial

judge, Appellant, and the State again went back and forth about whether the State agreed to

the motion to suppress. The judge warned Appellant that if he asked a witness about the

search, the judge would terminate his right to represent himself. The judge stated, “If you

rebel against that order, if you’re defiant of that order, then I can’t control the courtroom, and

CALVERT—72

I can’t control the proceedings. And you won’t be representing yourself anymore, and you

[will] have caused it all.”

When the jury returned, Appellant again brought up the search of his mother’s house.

The trial judge again excused the jury. The judge admonished Appellant about his defiant

and rebellious conduct. He stated that he was “now convinced [he could] not get this case

tried under the Rules of Evidence” with Appellant representing himself. Appellant

responded that he had not gone into the motion to suppress. When the judge asked Appellant

if he understood the judge’s ruling, Appellant answered, “I just want the truth.”

After the jury returned, the judge instructed Appellant to “continue with your cross

under the rulings of the Court.” Appellant immediately stated, “I object, Your Honor,

because I’m not able to—.” The judge interrupted him and told him that his objections were

on the record and he needed to ask questions. Appellant responded, “These are separate

objections, Your Honor. I object to not being able to effect a defense in front of the jury.”

The judge interjected that Appellant’s objections were “all overruled” and again instructed

Appellant to question the witness. Instead, Appellant continued his objection, stating,

“[u]nder the Sixth Amendment.”

After returning to his questions, Appellant repeatedly asked Shine questions that Shine

did not know the answer to.128 Appellant then began reading aloud from a property sheet that

128

Specifically, Appellant repeatedly asked Shine questions about the arrest warrant that

Shine did not know the answer to. Eventually, the prosecutor objected that the question had been

(continued...)

CALVERT—73

listed items taken from his vehicle, repeatedly asking Shine if he remembered the items on

that list. The prosecutor objected that Appellant needed to show Shine the property sheet

rather than read from it. Appellant then showed Shine the property sheet, but it did not

refresh Shine’s memory.

At that point, Appellant interrupted his own questioning to object that a deputy was

a foot-and-a-half from him and was looking at his evidence. The judge responded that the

deputy was not disturbing the evidence and directed Appellant to continue questioning Shine.

But Appellant stated that the deputy was “a witness.” The judge responded that the deputy

was not a witness “in this part of the case,” and again instructed Appellant to continue

examining Shine.

Appellant, talking about the courtroom deputy, complained, “this person is still talking

to me and disrupting me, so I would move the Court to admonish him as far as to back

away—.” The judge responded that if he admonished anyone, Appellant knew who it would

be, and he instructed Appellant to “sit down and ask the next question.” The prosecutor

interjected to clarify what the deputy had said.129 Appellant began, “Your Honor—,” but the

128

(...continued)

asked and answered. Appellant responded that he was now asking a different question, which was

what time Shine had spoken with the officer who prepared the affidavit for the arrest warrant. Shine

again answered that he did not know. Appellant then asked Shine what time he and the other

investigators had arrived at the crime scene, and Shine stated that he did not know “exactly what

time we arrived.” Appellant further questioned Shine about other matters that Shine did not know

about, leading to more objections by the State.

129

“[J]ust for the record, . . . I can hear [the deputy] . . . , and all he said was, ‘Stand up.

(continued...)

CALVERT—74

judge interrupted him, stating that there were “14 people sitting over here,” and, “Let’s show

enough courtesy to ask the questions instead of arguing about these other matters. If you’ve

got a question, ask it.”

Appellant then continued to ask Shine about other items taken from the car. The

prosecutor objected that this questioning was “repetitive.” The judge sustained the objection.

After questioning Shine about other things in the vehicle,130 Appellant then began

questioning Shine about his role in searching and securing the vehicle, and the prosecutor

objected to the form of the question and relevance. The trial judge sustained the objection.

Appellant objected “under a right to cross-examine the witness. Obviously, that’s a Sixth

Amendment right.” The judge overruled the objection and told Appellant to “[h]ave a seat.”

Appellant then turned his questioning to the topic of his interview. Appellant

challenged Shine’s authority and jurisdiction to interview him in West Monroe, Louisiana.

The prosecutor objected that Appellant was misstating the law regarding jurisdiction. The

judge sustained the objection. Appellant began, “Well, I didn’t—,” and the judge told him

to stand up. Appellant again asked Shine why he did not wait until after extradition to

conduct the interview.

129

(...continued)

Stand up when you address the Court.’ He’s trying to make the defendant follow the Court’s

instructions. . . . It’s the defendant’s actions that are causing the deputies . . . to do what they do.”

130

Specifically, Appellant asked Shine what he thought about the shooting target that was

found in the trunk of the car. Shine stated that he did not form any conclusions or opinions.

Appellant asked Shine, “Now, none of the photographs of the trunk show the target, correct?” Shine

responded that he did not recall.

CALVERT—75

Appellant then read some of his own exculpatory statements from the transcript of his

interview and asked Shine to confirm that Appellant had said those things. The prosecutor

objected, and the judge sustained the objection. Next, Appellant questioned Shine about

Appellant’s comment on the State’s copy of the recorded interview: “Do you have a plea

offer for me?” Appellant claimed that this comment was not on his copy of the recorded

interview. The prosecutor objected that they previously had a hour-long recess where

Appellant was asked to produce evidence supporting that allegation, but Appellant had not

done so.131 The judge sustained the objection.

Appellant then examined Shine about the process of making the recording. Appellant

stated that he “need[ed] to see the file dates and—.” The judge admonished him to stand up.

Appellant then repeated: “I need to review the file dates and times of the video.” The

prosecutor objected to relevance, and the judge sustained the objection. Appellant then

began, “Well, Your Honor, I’m just trying to show—and I understand that—.” A sheriff’s

deputy interrupted to tell him, “If you’re going to speak to the Court, stand up. Last chance.”

The judge stated, “Let’s get it over with. Stand up, [Appellant]. It won’t work out good if

you don’t stand up, believe me.”

131

Before this exchange, standby counsel had testified outside the jury’s presence that he had

heard Appellant’s comment about a plea offer when he listened to Appellant’s copy of the interview.

And the prosecutor reminded the judge of the State’s motion in limine to prevent Appellant from

asking Shine if he had tampered with the recordings.

CALVERT—76

When Appellant continued examining Shine about the recording process, the

prosecutor objected that Shine had not made the recording and so he was the wrong person

to ask. The trial judge sustained the objection. Appellant then asserted that he could use his

copy of the interview to show that the recording had been altered. The judge stated that he

would take that up outside the jury’s presence in order to determine relevance, and then

Appellant would have another opportunity to present his evidence. The judge added, “You

can shake your head, smile if you want to. Doesn’t bother the Court. That’s the Court’s

ruling. If you have any other questions for Detective Shine, ask them.”

Appellant questioned Shine about the second vehicle search, in which Shine had

found the current license plates for Appellant’s car under the front passenger-side floor mat.

Appellant directly accused Shine and other law enforcement officers of planting the license

plates in Appellant’s car. Shine categorically denied the accusation, noting that it was

“totally baseless” and offensive. Appellant began to respond to Shine, but the judge cut him

off and told him to ask his next question. Appellant then asserted through questioning that

Shine and other officers had planted the rifles found in Appellant’s trunk at the time of his

arrest. Appellant seemed to imply that the officers could have obtained the rifles from his

mother’s house. The prosecutor objected, and the judge sustained the objection.

After asking repetitive questions about other evidence, Appellant asked Shine if he

had personal knowledge of the contents of a laptop bag found in the car. Shine stated that

he did not, but that he could testify about the recovered items if he had the property sheets.

CALVERT—77

Appellant told the judge that he could not find his copies of the property sheets and asserted

that the State could provide them. The prosecutor refused. Lacking the property sheets,

Appellant showed Shine photographs of the items in question and asked him if those items

had been in the vehicle. The prosecutor successfully objected. Appellant again asked the

prosecutor to hand the witness her copies of the property sheets so that the witness could

refresh his memory. The prosecutor again declined.

Appellant then questioned Shine about the ammunition scattered throughout the

vehicle. Appellant asked if Jelena was shot with “target ammunition,” and continuously

asked about the damage caused by different types of ammunition. The prosecutor objected,

and the judge sustained the objection.

Turning to the police report, Appellant acknowledged that he had received a copy in

discovery, but he asserted that he did not have it with him, so he took Shine’s copy.

Appellant began questioning Shine about details recorded in it. The prosecutor objected, and

the judge sustained the objection. Appellant complained that he was unable to question

Shine. The judge then recessed for the day and dismissed the jury. This is when the shock

incident occurred.

Outside the presence of the jury, the judge asked Appellant where he was going with

this line of questioning. Because Appellant refused to stand while addressing the judge, a

deputy activated the shock cuff. After he was shocked, Appellant commented, “I’m sure the

CALVERT—78

Court very much enjoyed that.” The judge then reinstated standby counsel to represent Appellant.

This record reflects that the trial judge had adequate cause to revoke Appellant’s pro

se status because he “deliberately engage[d] in serious and obstructionist misconduct.” 132

Despite the trial judge’s repeated rulings and admonitions, Appellant refused to abandon a

line of questioning about a search that he had successfully moved to suppress. Twice,

outside the jury’s presence, the trial judge reiterated and explained his rulings excluding

testimony about that search and warned Appellant that he was in danger of losing his pro se

status. Further, when Appellant was given the opportunity to present evidence that the

audiovisual recording of the interview had been altered, he failed to do so. Nevertheless, he

attempted to inform the jury that the recording had been altered. It appears from the record

that, when the judge stated that he would take that matter up outside the jury’s presence,

Appellant shook his head and smiled. Even after the trial judge ruled that asking Shine

questions that other investigators had already answered was repetitive and “a waste of time,”

Appellant continued with those questions. With no good-faith basis, Appellant accused

Shine and other investigators of planting evidence.

Appellant repeatedly refused to comply with relevant rules of procedural and

substantive law. Based on Appellant’s defiant and disruptive conduct, the judge revoked his

pro se status. On this record, we conclude that the trial judge did not abuse his discretion by

revoking Appellant’s pro se status. Point of error ten is overruled.

132

See Faretta, 422 U.S. at 834 n.46.

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CLOSING ARGUMENT – GUILT PHASE

In point of error eleven, Appellant contends that the prosecutor engaged in egregious

misconduct during closing argument at the guilt phase in violation of due process. Further,

he argues, given the magnitude, extent, and egregious nature of the misconduct, the errors

are not harmless.

The principal purpose of closing argument is to facilitate the jury in properly

analyzing the evidence presented at trial so that it may “arrive at a just and reasonable

conclusion based on the evidence alone, and not on any fact not admitted in evidence.” 133

There are four proper areas of jury argument: (1) summation of the evidence; (2) reasonable

deduction from the evidence; (3) answer to argument of opposing counsel; and (4) plea for

law enforcement.134 “[C]ounsel is allowed wide latitude in drawing inferences from the

evidence so long as the inferences drawn are reasonable, fair, legitimate, and offered in good

faith.”135 To complain on appeal about an improper jury argument, a defendant must object

at trial and pursue his objection to an adverse ruling.136 He must object each time an

133

Campbell v. State, 610 S.W.2d 754, 756 (Tex. Crim. App. 1980) (panel op.) (quoting

Stearn v. State, 487 S.W.2d 734, 736 (Tex. Crim. App. 1972)).

134

Milton v. State, 572 S.W.3d 234, 239 (Tex. Crim. App. 2019).

135

Shannon v. State, 942 S.W.2d 591, 597 (Tex. Crim. App. 1996).

136

Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996).

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improper argument is made, or he waives his complaint, regardless of the egregiousness of

the argument.137

Here, Appellant failed to preserve many of his complaints regarding the prosecutor’s

closing argument during the guilt/innocence phase because counsel failed to timely object

or did not object each time the allegedly improper argument was made.138 Therefore, we will

not consider those complaints. He did, however, preserve some of his complaints.

Appellant states that the prosecutor violated his Sixth Amendment rights by

commenting on his in-court behavior and making demeaning remarks regarding his

self-representation. Appellant preserved error for two of these complained-of comments.

Appellant complains about the prosecutor’s statement, “See him laughing and

smirking and shaking his head.” The trial judge overruled Appellant’s timely objection that

137

See, e.g., id.; Fuentes v. State, 991 S.W.2d 267, 273 (Tex. Crim. App. 1999).

138

See TEX . R. APP . P. 33.1; Cockrell, 933 S.W.2d at 89; Fuentes, 991 S.W.2d at 273.

Appellant complains that the prosecutor demonized him by calling him names such as “the evil that

sits in this courtroom,” a “monster,” and a “selfish coward.” He also contends that the prosecutor:

improperly inflamed jurors with irrelevant emotional considerations and encouraged them to put

themselves in Jelena’s position and to speak for Jelena and her family; improperly injected herself

personally into the case; intimated that her experience and expertise led her to conclude that

Appellant was guilty; touted her expertise by instructing the jury on how to conduct its deliberations;

encouraged the jury to convict him on behalf of the community at large; and urged jurors to join the

State’s team. He identifies numerous additional examples of allegedly improper name-calling and

argument which, he contends, violated due process. Appellant also asserts that the prosecutor

presented jurors with a falsified reconstruction of the offense that was unsupported by the evidence.

The record shows that the prosecutor stated that Appellant was holding L.C. as he stood over Jelena

in the doorway, and that L.C. cried out, “Mama, Mama, Mama,” as Jelena attempted to turn toward

her son before Appellant shot her in the back of the head.

CALVERT—81

this statement was a comment on his non-testimonial demeanor. The prosecutor then

asserted, “[T]hat’s what you’ve got right there, sitting right there with a smirk on his face

most of the trial. You saw it. That’s a killer. That’s evil.” Appellant objected again that the

prosecutor was commenting on his non-testimonial demeanor. The prosecutor responded,

“I’m commenting on when he represented himself.” The judge overruled the objection.139

Typically, a non-testifying defendant’s demeanor while in the courtroom is not

evidence, so it is not an appropriate subject for the prosecutor in argument.140 A defendant’s

non-testimonial demeanor is usually irrelevant to the issue of his guilt.141 Assuming the

prosecutor’s arguments, “See him laughing and smirking and shaking his head,” and

“[T]hat’s what you’ve got right there, sitting right there with a smirk on his face most of the

trial,” were improper comments on non-testimonial demeanor, any error was harmless.

139

To the extent that Appellant complains that these comments violated his right to self-

representation, his current contention does not comport with his trial objections, which were solely

on the ground that the comments concerned his non-testimonial demeanor. See Hallmark v. State,

541 S.W.3d 167, 171 (Tex. Crim. App. 2017) (“Because the complaint on appeal does not comport

with either of the trial objections, nothing is presented for review.”). Therefore, we will consider

only his arguments regarding non-testimonial demeanor.

140

See Wead v. State, 129 S.W.3d 126, 130 n.8 (Tex. Crim. App. 2004) (prosecutor may not

properly comment upon the defendant’s demeanor in the courtroom because his demeanor is not

evidence of guilt).

141

Good v. State, 723 S.W.2d 734, 737-38 (Tex. Crim. App. 1986) (concluding that a

defendant’s neutral, orderly courtroom demeanor did not support a reasonable inference of guilt).

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We evaluate the harm arising from this improper closing argument under the standard

for constitutional error because it is an indirect comment on Appellant's failure to testify.142

We must reverse the conviction unless we determine beyond a reasonable doubt that the error

did not contribute to the conviction or punishment. The context of the prosecutor's statement

shows that it could not have tainted the trial process. The argument followed the guilt-

innocence portion of trial, where Appellant represented himself until his repeated

disobedience caused the trial court to reinstate his attorneys. The jurors did not hear

Appellant testify, but they could recall for themselves whether Appellant “smirked” during

most of the trial. Moreover, although the record does not itself reflect the “smirks,” it does

reflect Appellant’s flippant attitude and verbal sparring with witnesses, the prosecutor, the

courtroom deputies, and the trial court while representing himself. After carefully reviewing

the record and performing the required harm analysis under Rule 44.2(a), we hold beyond

a reasonable doubt that any error in failing to sustain the Appellant's objection to the

prosecutor’s argument did not contribute to Appellant's conviction or punishment. Point of

error eleven is overruled.

CLOSING ARGUMENT – PUNISHMENT PHASE

142

Dickinson v. State, 685 S.W.2d 320, 324 (Tex. Crim. App. 1984); Snowden v. State, 353

S.W.3d 815, 826 (Tex. Crim. App. 2011).

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In point of error twelve, Appellant asserts that the prosecutors engaged in egregious

misconduct during closing argument in the punishment phase of the trial in violation of his

Fifth Amendment privilege and Article 38.08. He contends that the prosecutors:

1. commented on his failure to testify and his non-testimonial demeanor;

2. worked to inflame the jury’s passions by making emotional statements

about Jelena’s fear during the offense and her final thoughts for L.C.;

3. described L.C. and his sister E.C. as victims;

4. encouraged jurors to decide his punishment on an emotional basis;

5. attacked him personally, repeatedly and at length;

6. made his in-court demeanor a centerpiece of their argument as to why

he deserved the death penalty; and

7. wrongly argued that his disrespectful courtroom behavior was evidence

of his future dangerousness.

Our review of the record reveals that Appellant failed to timely object, and therefore

failed to preserve error, to all but one of these complained-of comments.143 Therefore, we

will address the admissibility of that comment, alone, on the merits.

Specifically, Appellant objected to the following statement on the ground that it

violated his Fifth Amendment right not to testify:144

143

Cockrell, 933 S.W.2d at 89 (stating that to complain on appeal about an improper jury

argument, a defendant must object at trial and pursue his objection to an adverse ruling).

144

To the extent that Appellant intends to raise other grounds for objection on appeal, these

grounds do not comport with his trial objection and so we will not consider them. See Hallmark,

(continued...)

CALVERT—84

And there’s no remorse. He sits over there . . . shaking his head at me.

Where’s the acceptance of responsibility?

Even Mr. Haas stood up here and told you, “We understand; we get it” was the

words he used. Really? Because the last time we were standing here, he was

arguing that he was what? Not guilty.

So when did they get it? Where’s the responsibility when he’s pulling the

trigger six times, when he’s changing the license plates?

It is improper for the State to accentuate for the jury the defendant's failure to take the

stand and claim present remorse.145 Nevertheless based on the record of this case—which

includes Appellant’s interview with the police in which he demonstrated a lack of both

responsibility and remorse—we have a fair assurance that any error did not influence the jury

or had but a slight effect.146 Point of error twelve is overruled.

EMOTIONAL EVIDENCE AND COMMENTARY

In point of error thirteen, Appellant contends that the trial judge violated Appellant’s

due process right to a fair trial by allowing the prosecutor to elicit irrelevant and prejudicial

testimony and to make speeches while examining witnesses. He avers that the prosecutor

questioned witnesses throughout the trial in a manner that was calculated to inflame the jury.

144

(...continued)

541 S.W.3d at 171.

145

Randolph v. State, 353 S.W.3d 887, 893 (Tex. Crim. App. 2011); Snowden v. State, 353

S.W.3d 815, 823-24 (Tex. Crim. App. 2011).

146

See Thomas, 505 S.W.3d at 927.

CALVERT—85

He identifies four main categories of allegedly irrelevant and unfairly prejudicial testimony

and commentary:

1. responding officers’ testimony about their feelings toward L.C. and

their own children;

2. officers’ testimony about a hypothetical gunfight with Appellant,

although there was no evidence that Appellant was aggressive or

threatening;

3. the prosecutor’s prolonged and leading questions on prejudicial topics;

and

4. the prosecutor’s and judge’s argumentative and derogatory comments

conveying general disdain for Appellant.

Further, Appellant states, the prosecutor’s closing arguments emphasized the

erroneously admitted testimony described in categories (1) through (3), which compounded

the harmful effects of these alleged errors. We will address each of the four categories in

turn, followed by the discussion on cumulative error.

(1) Officers’ Feelings About L.C. and Their Own Children

Appellant first avers that the prosecutor asked responding officers numerous irrelevant

and unfairly prejudicial questions regarding their feelings about L.C. and their own children.

Appellant specifically complains that, at the guilt phase, the prosecutor elicited Officer

Spoon’s testimony about his feelings of sadness upon seeing L.C. in Appellant’s car. Spoon

also testified that L.C. “was the cutest little kid” and that Spoon was “furious” that Appellant

had placed L.C. in danger. When the prosecutor asked Spoon if he kept a picture of L.C. in

CALVERT—86

his home, Spoon answered affirmatively, explaining that he kept it “[b]ecause [L.C.] was

kidnapped, and his mom was murdered in front of him.” Similarly, the prosecutor asked

Sergeant Downhour, “[A]s you went back th

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