Petition for Writ of Certiorari — Mark Anthony Gonzalez, Petitioner v. Texas

No. _________

IN THE

Supreme Court of the United States

________________________________

MARK ANTHONY GONZALEZ,

Petitioner,

v.

STATE OF TEXAS,

Respondent.

________________________________

On Petition for a Writ of Certiorari to the

Court of Criminal Appeals of Texas

________________________________

PETITION APPENDIX

________________________________

Mridula S. Raman

Counsel of Record

Ty Alper

Elisabeth A. Semel

DEATH PENALTY CLINIC

UNIVERSITY OF CALIFORNIA, BERKELEY

SCHOOL OF LAW

Berkeley, CA 94720

(510) 642-5748

mraman@berkeley.edu

Counsel for Petitioner

TABLE OF CONTENTS

Gonzalez v. State, No. AP-77,066 (Tex. Crim. App. Nov. 4, 2020) ............................. 1a

Order Denying Motion for Rehearing, Gonzalez v. State, No. AP-77,066

(Tex. Crim. App. Mar. 3, 2021) ....................................................................... 130a

i

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. AP-77,066

MARK ANTHONY GONZALEZ, Appellant

v.

THE STATE OF TEXAS

ON DIRECT APPEAL

FROM CAUSE NO. 2011-CR-5289 IN THE 175TH DISTRICT COURT

BEXAR COUNTY

KEEL, J., delivered the opinion of the Court, in which KELLER, P.J., and

KEASLER, HERVEY, NEWELL, WALKER, and SLAUGHTER, JJ., joined. RICHARDSON

and YEARY, JJ., did not participate.

In October 2015, appellant entered a not guilty plea, but a jury convicted him of

capital murder for the 2011 murder of a police officer. See TEX. PENAL CODE

' 19.03(a)(1). Based on the jury=s answers to the special issues set forth in Texas Code of

Criminal Procedure Article 37.071, '' 2(b) and 2(e), the trial judge sentenced appellant

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to death. TEX. CODE CRIM. PROC. art. 37.071, ' 2(g). Direct appeal to this Court is

automatic. Id., ' 2(h).

Appellant raises twenty-eight points of error. Point of error four, complaining

about the trial court’s juror-substitution procedure, is an issue of first impression before

this Court, and we address it first. The remaining points of error are addressed generally

in trial order in the portion of the opinion not designated for publication. Finding none of

his points to have merit, we affirm the trial court’s judgment and sentence of death.

Throughout this opinion, unless otherwise specified, all references to “Article”

mean the Code of Criminal Procedure, all references to “Section” mean the Penal Code,

and all dates refer to 2011. For the sake of clarity we refer to some witnesses by their

first names because they share a last name with someone else in the record.

I. OVERVIEW

Shortly after 2:00 a.m. on Saturday, May 28, Memorial Day weekend, Sergeant

Kenneth Vann of the Bexar County Sheriff’s Office (BCSO) was found shot to death in

his patrol car at the intersection of Southeast Loop 410 and State Highway 87 in San

Antonio. At the time of his death, Vann was a licensed peace officer working the

overnight shift as a first-line supervisor for patrol officers.

Appellant’s identity as Vann’s killer was not an issue at trial. Rather, the

defensive theory was that appellant did not act intentionally, knowingly, or voluntarily

because he was in an automatistic state brought on by a “perfect storm” of alcohol and

prescription-drug abuse, head injuries, brain dysfunction, and hypoglycemia.

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II. JUROR SUBSTITUTION PROCEDURE

In point of error four, appellant asserts that the trial court reversibly erred under

the Sixth Amendment by substituting an alternate juror during punishment phase

deliberations without instructing the jury to begin its deliberations anew and by telling

the attorneys that what the original jury had already decided should “remain.” Appellant

also cites the Eighth Amendment and various Texas constitutional provisions, but those

arguments are inadequately briefed. See Tex. R. App. P. 38.1(i); Wolfe v. State, 509

S.W.3d 325, 342B43 (Tex. Crim. App. 2017) (noting that we have no obligation to make

an appellant=s argument for him); Lucio v. State, 353 S.W.3d 873, 877B78 (Tex. Crim.

App. 2011) (finding a point of error inadequately briefed where the brief contains a

single-sentence assertion and is unaccompanied by any other argument or authorities);

Murphy v. State, 112 S.W.3d 592, 596 (Tex. Crim. App. 2003) (A[B]ecause appellant

does not argue that the Texas Constitution provides, or should provide, greater or

different protection than its federal counterpart, appellant=s point of error is inadequately

briefed.@). As for his Sixth Amendment argument, it was not preserved, and even if it

had been, it is without merit because any error would have been harmless.

II.A. Relevant Facts

Twelve jurors and two alternates were individually interviewed and selected

according to the same process. These fourteen all took the same oath to render a true

verdict according to the law and evidence and received the same instructions from the

trial court, including: injunctions against reading about or researching the case or

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discussing it with anyone not on the jury; an injunction against discussing it with one

another before deliberations; instructions about their exclusive role as judges of the facts

proved, the credibility of the witnesses, and the weight to be given the testimony; and an

instruction that they would receive the law from the trial court and would be governed by

that law.

Immediately before the indictment was read, the trial court addressed the alternate

jurors:

[B]oth of you are alternates and what that means is that you will be

with us until the jury begins deliberating. So if someone should become

disabled or something happens that the person can=t finish the trial, then one

of you will be selected to step into their place. Okay?

This instruction comported with the pre-2007 version of Article 33.011(b).

Before reading the guilt-phase charge to the jury on Monday, October 12, 2015,

the trial court instructed the jury in accord with the applicable version of Article

33.011(b):

Ladies and gentlemen of the jury: Your jury includes two alternates.

In order of selection, they are jurors [S.F.] and [M.R.]. The law now

requires that the alternate jurors remain through the entirety of the trial

process.

The alternate jurors will accompany the jurors into the jury room.

The alternate jurors will not participate in any deliberations or in any voting

unless they are instructed to do so by this Court. The alternate jurors must

attentively listen to all deliberations as it is always uncertain if and when

we might need to utilize one or both of them.

The trial court then read the charge. The twelve jurors, shadowed by the two

alternate jurors, retired to select a presiding juror and to deliberate. Roughly one hour

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later, the jury returned a verdict finding appellant guilty of capital murder as charged in

the indictment. When polled individually, each regular juror affirmed the verdict.

Punishment phase testimony began on Thursday, October 15, 2015. The alternate

jurors listened to and observed the evidence along with the regular jurors, the parties

rested and closed late that same day, and proceedings resumed the following Monday

after lunch. Before reading the punishment charge, the trial court again gave a

preliminary instruction about the alternates= roles:

Pertaining to the alternate jurors, [S.F.] and [M.R.], you will

accompany the jurors into the jury room. The alternate jurors will not

participate in any deliberations or in any voting unless they are instructed to

do so by this Court.

The alternate jurors must attentively listen to all deliberations as it is

always uncertain if and when we might need to utilize one or both of them.

After argument, the trial court sent the regular jurors to the jury room to begin

deliberating. The alternate jurors accompanied them.

At about 7:00 p.m., the jury sent its first note, asking, ACan you clarify Issue #2?

In particular, >character & background=[?] Can you please rephrase in other terms? Also,

please clarify >sufficient.=@ The trial court issued its first supplemental charge in response

to this note, stating in relevant part, ABe advised that you have all the law and evidence

before you, please continue to deliberate.@

At 11:24 p.m., the trial court asked the jury whether it wished to continue

deliberating that night; it did. Sometime later, the trial court informed the parties that

AEMS@ was going to take regular juror R.P. to the hospital and that the trial court was

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therefore going to send the remainder of the jury to a hotel to rest for the night. AThe

jury@ in this context appears to have referred to both the regular jurors and the alternates.

The trial court stated, AI=m going to have them come back at 10:00 o=clock in the

morning. [R.P.] may be better by then and if so he will be asked to come back to

deliberate beginning at 10:00 o=clock.@

Sometime after the jurors asked to continue deliberating and before the trial court

reported R.P.=s condition, the jury sent a second note asking: AAre we deciding life

imprisonment or the death penalty? Or only deciding if any mitigating circumstances

[sic]? Also, if anything that reduces blameworthiness [sic]? Both relate to Issue # 2.@

The next morning, October 20, 2015, the trial court, prosecutors, and defense

counsel interviewed juror R.P. in chambers. He said that he had suffered a debilitating

anxiety or panic attack during deliberations the night before and still had uncontrollable

physical symptoms. R.P. did not reveal anything about the state of the jury=s

deliberations except that Athings@ had become Avery tense.@ The trial court excused R.P.

from jury service over defense counsel=s generic, non-specific objection.

The trial court then summoned alternate juror S.F. to chambers and spoke with her

as follows:

THE COURT: [S.F.], how are you?

JUROR [S.F.]: Good.

THE COURT: I wanted to let you know that you are going to

replace [R.P.]. He is ill.

JUROR [S.F.]: Yes, ma=am.

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THE COURT: And so you have taken an oath. You have sat

through all of the deliberations.

JUROR [S.F.]: Yes.

THE COURT: And so now you will be able to not only join the

deliberations but also vote.

JUROR [S.F.]: Okay.

THE COURT: And so you will replace him and it=s official as of

right now.

JUROR [S.F.]: Okay.

THE COURT: All right? Thank you.

The trial court did not summon the other jurors to the courtroom to inform them

that R.P. had been excused and that alternate juror S.F. had replaced him. Nor did the

trial court provide the jury with any instructions about how, if at all, S.F.=s substitution

should affect its punishment deliberations to that point.

The parties then started to argue about the proper response to the jury=s second

note, but during this argument, defense counsel objected to R.P.=s replacement by

alternate juror S.F.:

[LEAD DEFENSE COUNSEL]: I need to object to the seating of

the alternate juror. She is not one of the 12 that originally found the

defendant guilty and she supposedly [has] not taken part in any

deliberations. And I think it=s appropriate to ask that they go back to

guilt/innocence with this new 12, re-deliberate that, and certainly for them

to re-deliberate the entirety of punishment, presuming that my objection to

seating this alternate juror is denied.

THE COURT: That is denied.

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The argument about the proper response to the second jury note continued but was

again sidelined by defense counsel:

[LEAD DEFENSE COUNSEL]: The thing about it is, now we have

a 12th different juror.

time.

[STAFF ATTORNEY]: Well, but she=s been in there the whole

[LEAD DEFENSE COUNSEL]: No, I get that.

[STAFF ATTORNEY]: I don=t think that=s a concern.

[LEAD DEFENSE COUNSEL]: But the point is, it=s only a

theoretical concern in that B

[SECOND CHAIR DEFENSE COUNSEL]: She could change the

answer to Number 1.

[LEAD DEFENSE COUNSEL]: Yeah.

After conferring with lead defense counsel, second chair defense counsel asserted,

A[W]e have a new juror which [sic] could change the answer to [Special Issue] Number

1.@ Lead defense counsel added, AWe -- we do have 12 new jurors -- I mean one new

juror, which does -- she has theoretically not voted on [Special] Issue Number 1.@ This

exchange followed:

THE COURT: So what are you saying?

[LEAD DEFENSE COUNSEL]: That there=s now a replacement -[APPELLATE PROSECUTOR]: The jury may have voted on

Question Number 1 before she was on the jury and now that she=s on and I

believe -- and, correct me if I=m wrong, and so she may not have voted on

the first special issue.

[STAFF ATTORNEY]: So they=re going to re-vote essentially. If

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they have already voted on one because they have a new body, they=re

going to say let=s vote again because she didn=t get a say-so.

THE COURT: Well, the problem -[LEAD PROSECUTOR]: I guess it only matters if she has a

different vote than the previous 12 -- the other jurors.

THE COURT: Well, here -- here=s my thought on that. What has

been decided should remain, period. I don=t see how you can go back and

change something. She wasn=t on the jury at that time. So -- and we don=t

have any case law on that either, do we?

[APPELLATE PROSECUTOR]: No. This is the only kind of case

where there are two questions for the jury or questions at all, so this doesn=t

come up in any other case. And I can=t think of a death penalty case where

a juror has been replaced during punishment deliberations. So I don=t think

there is any case law on that. I am sure that they will address all the issues

among themselves.

THE COURT: I=m sure they will as well. But it=s only

commonsense that you -- you know, what are we supposed to do, go back

and re-litigate the first phase of the trial?

[SECOND CHAIR DEFENSE COUNSEL]: No, no. Not the first

phase, Special Issue Number 1.

THE COURT: And the same issue with what has happened already.

I mean, how can you go back and change the vote or change anything?

[APPELLATE PROSECUTOR]: I think that=s correct. It=s been

decided by the jury as it was comprised at that time. I mean, just

extrapolating from case law, since we don=t have any real guidance, there

was nothing wrong with the jury that decided guilt and there is nothing

wrong with the jury that if they [sic] reached a decision on the first special

issue.

THE COURT: If they did.

time.

[APPELLATE PROSECUTOR]: They were the proper jury at the

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THE COURT: And we don=t know. We don=t know.

[SECOND CHAIR DEFENSE COUNSEL]: Well, the charge is

taken as a whole, you know.

THE COURT: Pardon?

[SECOND CHAIR DEFENSE COUNSEL]: The charge is taken as

a whole, so they=re back there debating now the punishment charge as a

whole with 12 people.

THE COURT: Well, we -[APPELLATE PROSECUTOR]: One of which is new.

THE COURT: Well, the problem is we don=t know what their

decision was, or if they decided Issue Number 1. We=re assuming that they

answered Issue Number 1 because otherwise they wouldn=t go on to Issue

Number 2.

[LEAD PROSECUTOR]: Whether or not the new juror -- what

effect the new juror has, we=re left with the note that the previous jury sent.

They have sent a new note. I think we need to address the note that=s

before us -THE COURT: Exactly.

[LEAD PROSECUTOR]: -- and not speculate as to what the effect

of the new juror is.

THE COURT: I agree.

After a third note from the jury and an interview of a juror on an unrelated matter,

the reconstituted jury sent a note at about 4:50 p.m. indicating that it had reached a

punishment verdict. After the verdict was read in court, the trial court individually polled

the jurors at defense counsel=s request, stating: ALadies and Gentlemen, I=m going to ask

you now if this is your individual verdict to Issue No. 1 and Issue No. 2.@ Each member

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of the reconstituted jury, including juror S.F., affirmed that it was.

II.B. Preservation

To preserve error for appellate review, a defendant must make a timely objection

or request and state the grounds on which he thinks he is entitled to a favorable ruling.

An objection or request is sufficiently specific if the trial court is aware of the complaint

or if the grounds are apparent from the context. TEX. R. APP. P. 33.1(a). Magic words

are not required, but the litigant must “let the trial court know what he wants and why he

feels himself entitled to it clearly enough for the judge to understand him.” Vasquez v.

State, 483 S.W.3d 550, 554 (Tex. Crim. App. 2016). A general objection will not

preserve error unless the legal basis is obvious to the trial court and opposing counsel. Id.

A complaint is obvious if there are “statements or actions on the record that clearly

indicate what the judge and opposing counsel understood the argument to be.” Clark v.

State, 365 S.W.3d 333, 339 (Tex. Crim. App. 2012). In this case, no error was preserved

because the nature of appellant’s request and its Sixth Amendment basis were not

obvious to the trial court.

Appellant did not ask the trial court to instruct the jury to begin deliberations

anew. The closest he came was when he said, “I think it’s appropriate to ask that they go

back to guilt/innocence with this new 12, re-deliberate that, and certainly for them to redeliberate the entirety of punishment, presuming that my objection to seating this

alternate juror is denied.” The prosecution, court staff attorney, and the trial court

assumed that the jury would “address all the issues among themselves[,]” leading the trial

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court to ask, “[W]hat are we supposed to do, go back and re-litigate the first phase of the

trial?” This question shows that the trial court did not understand that appellant wanted

an instruction to begin punishment deliberations anew. The defense attorney’s answer

did not clarify the matter, either. His answer, “No, no. Not the first phase, Special Issue

Number 1[,]” perpetuated the idea about a need to “relitigate” the punishment phase.

Even if it had been obvious that appellant wanted an instruction to the jury to begin

deliberations anew, the basis for his request was not obvious; he never mentioned the

Sixth Amendment or any other authority to support his position.

Under these circumstances, any error was not preserved. Even if it were

preserved, it was harmless, as discussed below.

II.C. Appellant=s Argument

Appellant argues that the trial court violated the Sixth Amendment when it denied

trial counsel=s request to instruct the jury to deliberate anew and that it further erred when

it told the parties that what the original jury had already decided should “remain.” He

relies on Williams v. Florida, in which the Supreme Court stated that

the essential feature of a jury obviously lies in the interposition between the

accused and his accuser of the commonsense judgment of a group of

laymen, and in the community participation and shared responsibility that

results from that group=s determination of guilt or innocence.

399 U.S. 78, 100 (1970). Appellant contends that the Supreme Court has thus identified

group deliberation as an essential feature of the Sixth Amendment=s guarantee of the right

to trial by jury. See U.S. CONST. amend. VI (AIn all criminal prosecutions, the accused

shall enjoy the right to a speedy and public trial, by an impartial jury[.]@). He also asserts

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that many federal circuit courts of appeals have concluded that the failure to instruct a

jury to deliberate anew after a post-deliberations juror substitution violates the Sixth

Amendment.

II.D. Relevant Law

Our statutes envision a juror substitution during deliberations but specify no

procedures for such a substitution. See TEX. CODE CRIM. PROC. arts. 33.011(a),

36.29(b)-(c). The United States Supreme Court has not considered whether the Sixth

Amendment permits the substitution of an alternate juror after deliberations have begun,

and if so, whether the Sixth Amendment mandates any specific procedures such as an

instruction to deliberate anew.

The federal circuit courts that have considered the issue have held or implied that

the Sixth Amendment does not categorically prohibit the mid-deliberations substitution of

an alternate juror. See United States v. Cencer, 90 F.3d 1103, 1109B10 (6th Cir. 1996);

Claudio v. Snyder, 68 F.3d 1573, 1577 (3rd Cir. 1995); Peek v. Kemp, 784 F.2d 1479,

1484B85 (11th Cir. 1986) (en banc); Miller v. Stagner, 757 F.2d 988, 995 (9th Cir. 1985);

United States v. Hillard, 701 F.2d 1052, 1055 (2d Cir. 1983); United States v. Phillips,

664 F.2d 971, 990 (5th Cir. 1981); United States v. Evans, 635 F.2d 1124, 1126B27 (4th

Cir. 1980); Henderson v. Lane, 613 F.2d 175, 178B79 (7th Cir. 1980). But these courts

are split on the importance of an instruction to deliberate anew in assessing the

constitutional validity of a mid-deliberations juror substitution.

The Second, Third, Fifth, and Ninth Circuit Courts of Appeals have generally

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concluded that an instruction to deliberate anew is a vital procedural safeguard to

preserve the Aessential feature@ of the Sixth Amendment right to trial by jury. See

Claudio, 68 F.3d at 1577; Miller, 757 F.2d at 995; Hillard, 701 F.2d at 1055; Phillips,

664 F.2d at 990. These courts have generally found no Sixth Amendment violation and

no prejudice where the trial court expressly or constructively instructed the jury to begin

deliberations anew. See Claudio, 68 F.3d at 1577; Miller, 757 F.2d at 995; Hillard, 701

F.2d at 1055; Phillips, 664 F.2d at 990. Whether determining the existence of a Sixth

Amendment violation or assessing prejudice, these courts have made highly fact-specific

inquiries and (1) considered any other procedural safeguards that preserved the jury=s

Aessential feature@; and (2) compared the length of pre-substitution deliberations with the

length of post-substitution deliberations. See Claudio, 68 F.3d at 1574B77; Hillard, 701

F.2d at 1055B57; Phillips, 664 F.2d at 990B93.

The Fourth, Sixth, Seventh, and Eleventh Circuit Courts of Appeals have placed

less emphasis on supplemental instructions to begin deliberations anew. See Cencer, 90

F.3d at 1109B10; Peek, 784 F.2d at 1484B85; Evans, 635 F.2d at 1126B27; Henderson,

613 F.2d at 178B79. Instead, these courts have generally found it more relevant whether

the reconstituted jury was actively prevented from deliberating anew. See Cencer, 90

F.3d at 1109B10; Peek, 784 F.2d at 1484B85; Evans, 635 F.2d at 1126B27; Henderson,

613 F.2d at 178B79. But like the other circuit courts of appeals, the Fourth, Sixth,

Seventh, and Eleventh Circuit Courts of Appeals have also made fact-specific inquiries

focused on the overall procedural safeguards that were in place to preserve the jury=s

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Aessential feature.@ See Cencer, 90 F.3d at 1109B10; Peek, 784 F.2d at 1484B85;

Henderson, 613 F.2d at 178B79. And these courts, too, have sometimes noted the length

of time that the reconstituted jury deliberated. See Cencer, 90 F.3d at 1106, 1109B10;

Henderson, 613 F.2d at 178B79.

II.E. Analysis

We agree with the federal circuit court opinions discussed above that any error in

failing to instruct a jury to deliberate anew is not structural. Assuming that an error

occurred, we will reverse only upon a finding of harm under the applicable analysis. We

conclude that, even if the Sixth Amendment required the trial court to instruct the

reconstituted jury to deliberate anew, the error in failing to do so was harmless beyond a

reasonable doubt under the circumstances of this case in which the alternates attended

deliberations before the substitution, the trial court did not prohibit the jury from

beginning its deliberations anew, and the verdict was adopted by each juror individually

in the post-verdict poll. See TEX. R. APP. P. 44.2(a) (requiring reversal of a judgment or

conviction Aunless the court determines beyond a reasonable doubt that the error did not

contribute to the conviction or punishment@); cf. Jasper v. State, 61 S.W.3d 413, 423

(Tex. Crim. App. 2001) (applying the standard of harm for constitutional error when

faced with both non-constitutional and constitutional error).

An instruction to deliberate anew can operate as a valuable procedural safeguard

to ensure that a re-formed jury deliberates with the new member. See Claudio, 68 F.3d at

1577; Miller, 757 F.2d at 995; Hillard, 701 F.2d at 1055; Phillips, 664 F.2d at 990; see

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also Peek, 784 F.2d at 1484B85. The trial court gave no such instruction in appellant=s

case, but nor did it give an instruction that prevented the jury from beginning its

deliberations anew. See Peek, 784 F.2d at 1485; Evans, 635 F.2d at 1128. Appellant

emphasizes the trial court=s statement that A[w]hat has been decided should remain,

period[,]@ but this statement was made outside the presence of any jurors.

The two pre-substitution notes relevant to the mitigation special issue suggest that

the original jury may have reached at least a tentative consensus on future dangerousness.

But when addressing the alternate, the court did not limit the special issues on which she

could deliberate and vote. The court merely confirmed the fact that the alternate had

taken the juror=s oath and sat through deliberations to that point. The court then

instructed the alternate that she could actively join in the deliberations and vote.

Significantly, the alternate jurors in this case had the benefit of having attended the

pre-substitution deliberations. Compare, Claudio, 68 F.3d at 1574 (alternates sequestered

from regular jurors at beginning of deliberations); Hillard, 701 F.2d at 1055 (same);

United States v. Lamb, 529 F.2d 1153, 1155-56 (9th Cir. 1975) (alternate discharged at

beginning of deliberations); Henderson, 613 F.2d at 176 (same); Evans, 635 F.2d at 1126

(same); United States v. Josefik, 753 F.2d 585, 587 (7th Cir. 1985) (same); United States

v. Quiroz-Cortez, 960 F.2d 418, 420 (5th Cir. 1992) (same). That circumstance obviated

any need here to instruct the jury to deliberate anew after the substitution. See Cencer, 90

F.3d at 1110 (concluding that detailed procedures such as questioning all the jurors about

their ability to start over, confiscating all previously-prepared written materials, and

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instructing the jury to deliberate anew were unnecessary where the alternate had been

present for all the prior deliberations).

Post-substitution deliberations here lasted until almost 5:00 p.m., undermining any

claim that the alternate may have been pressured into passively ratifying positions that

the original jury may have already reached. Cf. Quiroz-Cortez, 960 F.2d at 420; Josefik,

753 F.2d at 587; Lamb, 529 F.2d at 1156. Such a claim is further undermined by the

post-verdict polling. In response to the poll, each juror confirmed that the answers were

his own, alleviating Aany concerns that the alternate juror might have simply acquiesced

in a predetermined verdict as a result of coercion, unease, or incomplete deliberation.@

See State v. Dalton, 385 P.3d 412, 418 (Ariz. 2016) (stating that the jury poll used by the

trial court was a Aprocedural safeguard [that] lessened possible prejudice from the lack of

a deliberate-anew instruction@). Consequently, any error from the juror substitution

procedure was harmless.

Point of error four is overruled, and the judgment of the trial court is affirmed.

The remainder of the opinion is not designated for publication. TEX. R. APP. P. 77.2.

III. STATE’S CASE-IN-CHIEF

In its case-in-chief, the State proved that appellant opportunistically shot and

killed Vann at random on the street in the middle of the night. During the week between

the shooting and his arrest, appellant made efforts to conceal his guilt but otherwise

behaved no differently than he had before the shooting—he continued to work, drink,

party, and look at porn.

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III.A. Discovery of the Offense

Shortly before 2:00 a.m. on May 28, Vann was dispatched to a shooting call. At

2:08:25 a.m., Vann=s patrol car was on westbound Highway 87 approaching the

intersection with Southeast Loop 410, and by 2:08:55 a.m., it was stopped at the northeast

corner of this intersection in San Antonio=s city limits.

Within moments of Vann=s arrival at the intersection, the San Antonio Police

Department=s (SAPD=s) Communications Unit received a call reporting Ashots fired@ in

Vann=s immediate vicinity. Responding SAPD and BCSO officers found piles of broken

glass behind the traffic light’s stop line. Blood, flesh, and brain matter were mixed in

with the glass, suggesting that the patrol car had been at the stop line when the windows

were broken. The patrol car’s engine was still running and in gear, and the car was

covered with bullet holes. Vann’s hand was on his on-board computer keyboard, his gun

was holstered and fully loaded, and his holster was snapped closed.

Vann was obviously dead. He had been Ashot multiple, multiple times, [an]

unknown amount of times.@ His Aface was pretty much gone and there was blood matter,

brain matter, matter everywhere in the car, splatter in the car, even on the side of the

driver door where it was like kind of sliding down.@

Once medical examiner personnel removed Vann=s body from the vehicle, the full

extent of his injuries became apparent to the deputies: A[P]retty much everything from

[Vann=s] chin to the . . . top of his abdomen was shredded or gone.@ A deputy who had

witnessed many fatalities over the course of his career testified that Vann=s injuries were

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by far the worst he had ever seen.

Deputies collected 11 projectiles from inside Vann’s patrol car and two more

projectiles from the roadway, but no cartridge cases were found in his car or at the scene.

III.B. Autopsy Results

Dr. Kimberly Molina, Deputy Chief Medical Examiner for the Bexar County

Medical Examiner=s Office, collected from Vann’s body a total of twenty-five intact

bullets and too many bullet fragments to count. Vann had suffered extensive, devastating

injuries from being shot multiple times with a rifle. Because rifles are high-velocity

weapons, their bullets cause a “ballooning” or “pulpification” effect and are more

damaging than pistol bullets. Some of Vann’s large wounds could have been caused by

multiple bullets hitting the same areas, so Molina reported the minimum number of his

gunshot wounds, thirty-nine, all entering on the right side of his body.

Molina identified eight entrance wounds in Vann=s head, face, and neck. The base

of his skull and his facial bones were fractured, his jugular vein and the back of his mouth

were torn, and his spinal cord was torn in half at the base of his neck. The remaining

entrance wounds were clustered in the front and back of Vann=s right neck, right

shoulder, and right chest area. His sternum was destroyed, his clavicles were shattered,

his ribs were fractured, and his front chest wall was pulpified. His heart, lungs, and

diaphragm were all injured and torn, some of his intestines were in his chest, his colon

was cut in half, and his liver was destroyed. His left upper arm bone was badly broken

by a bullet exiting that side of his body.

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Molina concluded that Vann’s death was a homicide caused by multiple gunshot

wounds.

The scene and Vann=s injuries were consistent with Vann having been in his patrol

car driver=s seat and someone having fired multiple rifle rounds into the vehicle at him

from the passenger side. The presence of Vann=s teeth and other bodily tissue found in

the patrol car was explained by the rifle rounds= high velocity. It was as if a Amini

explosion@ had occurred inside Vann=s patrol car. Vann=s death was probably almost

instantaneous.

III.C. A Manhunt Begins

An extensive manhunt involving county, state, and federal agencies began

immediately after Vann=s body was discovered. Surveillance videos from nearby

businesses gave investigators their first clues. Through these time- and date-stamped

videos, investigators identified rough details of two vehicles that had been in Vann=s

vicinity immediately before or at the time of the shooting. The first one was a white,

work-type truck with several distinctive characteristics that appeared right before the

shooting. The second one was a blue pickup truck with an extended cab that was at the

intersection at the time of the shooting and turned right onto the northbound Loop 410

access road afterwards.

One surveillance video recorded the sound of the shooting: forty-six shots, with a

short pause after the twenty-third or twenty-fourth round. The pause in the middle of the

shooting indicated either that Vann=s assailant had performed a very fast reload or had

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been using a large-capacity magazine.

Federal Bureau of Investigation (FBI) agents performed a trajectory analysis, and

Special Agent Rex Miller testified that shots fired from the windshield-level of an F-150

in the next lane of traffic would have been consistent with the trajectory analysis that he

and BCSO investigators made.

III.D. Witnesses Come Forward

At a little past 2:00 a.m. on May 28, Kelli Swan and her husband were at the light

at the northwest corner of the Loop 410 access road and Highway 87 when she heard

gunshots to her left, i.e., toward Vann=s location at the intersection. Looking that way,

she saw a dark-colored Ford F-150 truck in a non-turn lane, pointed in her direction.

Even though the truck was not in a turn lane, it Atook off@ and made a Acrazy@ turn to its

right onto the northbound Loop 410 access road, almost hitting a pole. Aerial

photographs accounted for the “crazy” turn because they showed that a traffic-directing

triangle curb separated a dedicated turn lane from the other lanes. To turn right onto the

feeder road from a lane that was not a turn-only lane, Vann’s assailant would have had to

go forward into the intersection and around the triangle curb.

Motorist Debra Burton saw Vann=s patrol car drift across the Loop 410/Highway

87 intersection and come to a stop against crash barrels under the Loop 410 overpass.

The driver and front passenger windows were shattered, and Vann, who “didn’t seem

okay,” was leaning over in the driver’s seat.

John Vrzalik III was in the drive-through lane of a Jack-in-the-Box just after 2:00

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a.m. when he saw a patrol car at the northeast corner of the Loop 410/Highway 87

intersection. A blue, brand-new body style Ford F-150 truck came speeding up next to

the patrol car and stopped at the light in the lane immediately next to the officer. About

ten seconds later, Vrzalik heard a lot of gunshots. Five to ten seconds after the gunshots

stopped, Vrzalik saw the truck turn right although it was not in a turn lane. A few

seconds later, the patrol car rolled through the intersection and hit a barricade.

Stephen Starling contacted investigators on Saturday, June 4, and identified

appellant as Vann=s killer.

Starling testified that he and appellant had been friends off and on since attending

high school in the 1980s. Starling had not seen appellant for about two years and had not

talked to him for about six months, but shortly after 4:00 p.m. on Friday, May 27,

appellant called him from a Chick-fil-A restaurant, where appellant seemed to be having

a meal. Appellant said that he had gotten off work early and wanted to get together.

Starling had to change some tires on a semi-truck belonging to a client, Steve ASkip@

Dorrell, and he invited appellant to come along.

Starling and appellant thereafter met at a convenience store. Appellant was

driving a blue, Ford F-150, crew-cab pickup. Appellant mentioned that he had his .223caliber Smith & Wesson M&P AR-15 rifle with him. Appellant bought some beer and

then followed Starling to Dorrell=s house. Two of Dorrell=s neighbors, James Moeller and

Randy Cox, arrived soon after Starling and appellant, and the group talked and drank beer

while Starling began changing Dorrell=s semi-truck tires. When the conversation turned

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to guns, appellant showed his rifle to Dorrell, and they went some distance away to shoot

at a fence post until Dorrell=s wife told them to stop.

While they were at Dorrell=s house, appellant was taking Xanax and exchanging

angry texts with his wife. He also smoked some marijuana he got from Dorrell. He

mentioned that he had tried to join the SAPD, but his test scores had not been high

enough. He showed Starling his new, large, drum-style magazine.

After they left Dorrell=s house, appellant followed Starling to Sir Vesa=s Cantina,

located on Highway 87 a few miles east of the offense=s location. Starling was driving

his white truck, and he was hauling tires. On the way to Sir Vesa=s, appellant called

Starling to say that two tires had fallen from the back of Starling=s truck. Starling pulled

to the side of the road to look for the tires, and appellant pulled in behind him. Appellant

accidentally ran into Starling=s truck, causing minor damage to both vehicles before they

resumed their trip to Sir Vesa’s.

While they were at Sir Vesa=s, appellant kept his bottle of Xanax on the table and

again brought up his failed effort to join the SAPD and mentioned that he had lost his

commercial driver=s license (CDL) due to tickets, a fact corroborated by other evidence

offered at trial. Starling testified that appellant seemed more upset about losing his CDL

and not getting hired by the SAPD than he did about the damage to his truck.

Meanwhile, appellant was still arguing with his wife via text and pressured

Starling to let him to stay at Starling=s house to make it look like appellant was staying

with another woman, but Starling declined. They left Sir Vesa’s at about 2:00 a.m. to go

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to the Denny’s near the Loop 410/Highway 87 intersection, each driving his own truck

and appellant following Starling.

As they were nearing the Loop 410/Highway 87 intersection, a patrol car passed

them and stopped at the red light. Starling reached the same light and started to turn right

onto the northbound Loop 410 access road, and appellant pulled up next to the patrol car.

Starling wondered what appellant was doing, because he thought that appellant had been

planning to follow him to Denny=s. When Starling completed his turn, he heard a loud

noise. He attributed it to a backfire and continued to Denny=s.

After Starling got to Denny’s, appellant called him, but Starling told him that he

would call him back. Heading home about half an hour later, Starling saw in his rearview

mirror that more patrol cars were arriving at the Loop 410/Highway 87 intersection.

Starling then called appellant back. The first words out of appellant=s mouth were, AI

killed a cop. Don=t tell no one, not even your wife.@ Starling looked at the lights in his

rearview mirror and told appellant, AJust looks like a bunch of fireworks back there.@

Appellant responded by chuckling, which Starling thought was Apretty sick.@ By this

time, Starling realized that what he had heard on his way to Denny=s had been gunshots

and not backfire.

On Sunday morning, Appellant texted him to ask whether Starling had ever found

the second tire that had fallen from his truck. Starling felt that appellant was checking up

on him. Appellant next contacted him on Wednesday, saying that he had called the

insurance company and told the representative that someone had hit his truck while it was

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parked in his driveway. Appellant promised Starling that he would pay whatever it cost

to repair Starling=s truck. Starling told appellant to get his head examined. He felt like

appellant was checking up on him again and that appellant was hoping that by Afixing the

trucks, he would make everything else go away.@

On the Saturday after the offense, Starling got a call from Dorrell who seemed to

suspect that appellant might have been involved in the offense. Starling did not tell

Dorrell what he knew. But the call prompted him to tell his wife what had happened, and

she insisted that they contact the authorities.

Investigators succeeded in verifying Starling’s account and eliminating his rifle as

the murder weapon. Denny=s surveillance videos showed him eating and using his phone

at the times he had reported to the investigators. His cellphone records confirmed

appellant and Starling=s call and text exchanges immediately before and after the

shooting. His pickup looked like the white truck that was on surveillance video just

before the shooting, and the damage to his truck was consistent with his account of the

minor collision between it and appellant=s truck.

An insurance-claim database showed that appellant made a claim on his mother=s

blue 2010 Ford F-150 truck to Progressive Insurance at 10:47 a.m. on May 28, just hours

after the offense. Investigators obtained the insurance company=s records of the claim,

including a recording of appellant=s call in which he nonchalantly explained that: he was

the truck=s primary driver although it was registered to his mother; he had just woken up

to discover that the truck had been Asideswiped@ during the night while it was parked in

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front of his mother=s house; the truck had sustained damage to the right-front passenger

side; and there was white paint on the damaged area. Investigators also learned that

appellant had already taken his truck to a local autobody shop for repairs which was

consistent with Starling=s statement.

Investigators contacted Dorrell who corroborated the details of Starling’s account

about Starling and appellant being at his house on May 27. Dorrell gave them the shell

casings he had picked up after he and appellant had shot the rifle.

III.E. Execution of Warrants

Based on the foregoing information, investigators obtained an arrest warrant for

appellant and a search warrant for his residence and vehicle and executed them on

Sunday, June 5.

BCSO=s SWAT team, supported by FBI SWAT, executed the arrest warrant at

appellant=s residence. Video and documentary exhibits showed that the uniformed

SWAT officers arrived at appellant=s residence in an armored vehicle marked ABexar

County Sheriff SWAT.@

As the SWAT entry team approached the front door, a man appeared at the

window of the master bedroom at the front of the residence. When the entry team

reached the front door, they yelled ASheriff=s Office!@ and APolice!@ Inside they

encountered a woman, later identified as appellant=s wife, standing at the master bedroom

doorway. Appellant was right behind her. As an entry team member pushed appellant=s

wife out of the way, appellant moved quickly toward the bathroom and tried to close the

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door behind him. But the entry team member pushed through and took appellant to the

ground. Another officer handcuffed appellant. Appellant, who was face down on the

ground, continued to resist by moving around on the floor after being handcuffed.

During the search of appellant=s residence, investigators found a Smith & Wesson

M&P AR-15 rifle with an AUltra-dot@ scope in the master bathroom tub. A .22-caliber

revolver lay on the edge of the tub. The rifle and the revolver were unloaded. The rifle

appeared to have been recently cleaned; there was fresh oil around its trigger guard and

the main housing area. A firearms buyer’s guide was nearby.

Among other things, investigators seized from elsewhere in the house a receipt for

the rifle in appellant’s wife’s name, a ninety-round drum magazine for .223 caliber

ammunition loaded with eighty bullets, a 100-round snail drum magazine for 7.62 mm

cartridges, a rifle scope, several cell phones, a flash drive, and a hard drive. The

electronic devices were searched later pursuant to an additional warrant.

Appellant was warned pursuant to Miranda v. Arizona, 384 U.S. 436 (1966), and

Article 38.22 while at his house and then taken to the Bexar County Criminal

Investigations Division (CID). Appellant’s wife was also taken into custody, given

Miranda warnings, and separately transported to the CID.

III.F. Appellant’s Statement

At the CID, appellant was given written warnings which he signed and

understood. He gave his personal information during the interview, and recited from

memory his: age, birth date, home address, social security number, cellular telephone

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number, and driver=s license number and expiration date; his wife’s name; his children’s

names, ages, and birth dates; and his mother=s name and address.

Appellant said he worked as a contract aircraft mechanic for Boeing at Kelly Air

Force Base. He admitted that his wife had been buying guns for him. When asked

whether his wife had been in the truck with him when he shot Vann on May 27, appellant

replied, AWhat are you talking about?@ and AI didn=t kill nobody.@ He stated that if they

were questioning him about a capital murder charge, that was Acrazy.@

Appellant said he could not remember what he had done on May 27. He could not

even remember what he had done the day before his arrest. He could not explain his lack

of memory. When asked if he was mentally ill or on medication, he said he suffered

from anxiety and was taking medication for high blood pressure and cholesterol and that

he was also taking Xanax and Zoloft. Appellant stated that he experienced no side effects

from his medication unless he failed to take it.

Appellant recalled his arrest: he had been in his bathroom when he heard a loud

bang. He thought someone was breaking in, so he grabbed his AR-15 rifle. But then he

saw a uniformed officer enter, so he threw the rifle down and got on the ground as

instructed. Appellant had thought the officers were there as part of a warrant round-up,

explaining that he had recently paid $3,000 worth of tickets.

Appellant was able to remember that he had bought and sold various guns over the

years and to describe the firearms and firearms accessories he presently had. Appellant

said that he normally stored his firearms in a safe, except for the AR-15 rifle which he

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kept in the open in case of intruders but unloaded because of his children. He kept the

rifle=s magazine nearby but high in the closet and more ammunition for it in his kitchen.

He denied that anyone else had possessed his AR-15 rifle and asserted that it had been

months since he had fired it.

Appellant’s regular work schedule was Monday through Friday, from 3:00 p.m. to

11:30 p.m. Regarding the prior weekend, appellant said that he had taken Friday and

Monday off from work. He could not really remember what he had done on that

Monday, Memorial Day, but later recalled that he had patched a leak in his mother-inlaw=s roof that day. He claimed that he did not remember what he had done on that

Sunday.

He denied having driven the truck on May 27 even when confronted with contrary

information that his wife had provided to the investigators. He also denied that he

normally traveled with his weapons.

Appellant stated that he did not remember where he went or what he did after he

left work at about 3:30 p.m. on Friday, May 27, or what he did on Saturday, May 28. He

implied that he could not remember because he was on medication, and he drank a lot

every day. But he continued to deny any role in Vann=s death.

III.G. Post-Arrest Investigation

Investigators seized appellant=s truck pursuant to a search warrant and took it to an

FBI evidence bay for processing. Its interior was extremely clean. Appellant=s bank

records and a local car wash employee=s testimony confirmed that appellant had had his

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truck washed and detailed on Wednesday morning, June 1, the day after local news

reported that a blue truck might have been involved in the shooting. Other evidence

showed that, later the same day, appellant took his truck to a local body shop for repairs

related to the claim he had earlier reported to his insurance carrier.

The State=s trace evidence expert found gunshot residue on the headliner and the

driver’s seat. She also collected and compared paint fragments from the damaged areas

of both appellant=s and Starling=s trucks and found they were consistent with paint from

each truck having been transferred to the other during a collision between the two.

Cell site location data showed that, immediately after the offense, appellant sped

from the shooting scene to arrive at his mother=s house sometime between 2:30 and 3:00

a.m. Shortly after the offense, appellant began using another phone. In addition, he

attempted to erase text messages and photographs of his AR-15 rifle from his old phone.

The State=s toolmark expert, Edward Wallace of the Bexar County Crime Lab, test

fired appellant’s AR-15 and compared the test-fired bullets with those recovered from

Vann=s body and patrol car. He also compared the nine cartridge casings collected from

Dorrell with the casings from the test firing. He concluded that all nine casings collected

from Dorrell had been fired from appellant=s AR-15 rifle and that appellant=s rifle fired

twenty-two of the thirty bullets and bullet fragments collected from Sergeant Vann=s

body and patrol car. The remainder were too damaged for a successful comparison, but

Wallace could not rule out the possibility that they had been fired from appellant’s rifle.

In addition, Wallace testified that after the rifle was fired at Dorrell’s ranch but

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before it was seized, someone had tampered with its firing pin by means of a Dremel-like

tool or a grinder. There is no innocuous reason to alter a firing pin in this manner. It

would make it more likely to misfire. Thus, the only purpose Wallace could see for

making such an alteration would be to make it harder for a toolmark expert to perform a

comparison analysis. Other evidence showed that appellant had ordered a new firing pin

for the rifle after the offense and before his arrest.

Wallace also testified that Vann’s shooter had to have pulled the trigger 46 times.

Having listened to the audio of Vann=s shooting, Wallace noted a short pause in the

shooting at around shot number twenty-three or twenty-four. This pause was too short to

accommodate reloading the rifle but was more consistent with someone using a largecapacity magazine and pausing either to change fingers on the trigger or to rest his trigger

finger.

III.H. Appellant=s Arrest History

During its cross-examination of lead detective John Mahon, the defense elicited

evidence of appellant=s local arrest history. Appellant had been charged with: driving

while intoxicated (DWI), carrying a weapon, and attempting to elude an officer on

September 25, 1988; three burglaries of a vehicle on June 7, 1989; and driving with an

invalid license on September 18, 2000. The record suggests that appellant was convicted

of the DWI but is unclear about whether he was convicted of anything else.

IV. DEFENSE GUILT-PHASE CASE-IN-CHIEF

The defensive theory focused on a Aperfect storm@ of a recent head injury, alcohol

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and Xanax ingestion, and hypoglycemia, causing appellant to suffer an Aautomatistic

state@ during the shooting. He had no independent memory of the night of the offense

past the point of stopping to look for Starling’s tires. He first learned of his involvement

in Vann’s death on Wednesday morning in a phone call with Starling. It was only then

that he told Starling not to tell anyone about it and that he tried to hide his involvement in

it. Starling had been motivated by the possibility of reward money to lie about

appellant’s contemporaneous confession. The offense was out of character for appellant,

and he had no discernable motive to target Vann.

IV.A. Appellant=s Personal Background

At the time of the offense, appellant was a forty-one-year-old contract aircraft

mechanic working on a project for Boeing in San Antonio. Some of his in-laws were law

enforcement officers, and he generally expressed admiration for law enforcement.

Appellant also encouraged his younger son to become a police officer.

Appellant began drinking as a teen, and his drinking increased over time. By the

offense date, his alcohol consumption had increased significantly, and he was Anot

handling it well.@ Some witnesses testified that appellant was nonviolent and calm when

he was sober. But members of his nuclear family acknowledged that appellant was prone

to becoming aggressive, angry, argumentative, obnoxious, and profane when he drank.

Appellant=s wife, Patricia Alcala, acknowledged that she sometimes felt threatened by

him when he was drinking, and she would insist that he leave the house until he calmed

down. However, Alcala denied that appellant was ever physically violent with her or

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their two sons.

Appellant=s eighteen-year-old son, Mark Gonzalez, Jr., also testified that appellant

was never physically violent with him or his younger brother but that he would

sometimes get Aphysical@ with Alcala. When his parents= verbal fighting began to

escalate, Alcala would throw appellant out of the house.

Alcala testified that appellant loved firearms, owned several of them, and often

talked of killing himself with one. He took Zoloft and Xanax for depression. Mario

Sepulveda, Alcala=s cousin and appellant=s best friend, testified that appellant=s

depression appeared to stem in part from his only sibling=s 2000 suicide. In that incident,

appellant=s brother killed at least one other person before killing himself with a handgun.

Alcala and Sepulveda acknowledged that appellant was also experiencing

financial difficulties. Alcala=s job had provided the family=s medical insurance and a

significant portion of its income. But at some point before the offense, Alcala had been

laid off, and she had not yet found a new job. Appellant was worried about paying bills

and paying for his prescriptions. Another financial burden stemmed from about $3,000

in outstanding tickets from appellant’s earlier venture in trucking.

In the weeks leading up to the offense, appellant and Alcala were struggling to pay

those tickets. Appellant was especially eager to pay them because he hoped to work on a

contract job in Chihuahua, Mexico, but that required a passport, and the outstanding

tickets complicated his efforts to get one. Although he borrowed money from family

members and pawned one of his handguns, he was not able to pay the tickets in time, and

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he lost the Chihuahua opportunity. In addition, he learned that a warrant would issue for

his arrest if he did not pay the tickets in full by the Friday after Memorial Day.

IV.B. Appellant’s Mood and Head Injuries

Alcala testified that appellant acted significantly more depressed after losing the

opportunity to work on the Chihuahua contract. Worried that appellant was suicidal,

Alcala called Sepulveda sometime shortly before the weekend preceding the offense.

Sepulveda invited appellant and his family to join him in Corpus Christi for the weekend

and volunteered to cover their costs.

Late that Saturday evening in Corpus Christi, Sepulveda and appellant walked to

the beach, but appellant slipped on some steps near the waterline, fell into the water, and

hit his head. Sepulveda testified on direct examination that appellant hit his head very

hard and that immediately afterward, appellant=s body was Aweird@ and Acontorted.@ He

described appellant=s arm as being bent to the side and Afreaky looking.@ He was not

moving, his eyes were rolled back in his head, he would not respond to his name, and a

large lump formed on the back of his head. Sepulveda went for ice, and when he

returned, appellant had not moved. Although appellant=s eyes were open, Sepulveda had

the impression that appellant was unconscious. Sepulveda insisted that it took anywhere

from five to fifteen minutes for appellant=s eyes to return to their normal position.

At some point, appellant said he was “good,” and he and Sepulveda sat there

talking for another thirty to forty-five minutes while appellant held the ice pack to his

head. That night appellant told Sepulveda, AMaybe this is karma for me thinking of

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killing myself. This is why I slipped and rammed my head.@ Appellant seemed “out of

it” through the next day.

On cross-examination Sepulveda acknowledged his 2011 statement in which he

had said that appellant was Aalert the whole time@ after hitting his head or only Aout for a

few seconds.@ Appellant was well enough to spend the next day at the beach. Sepulveda

admitted that he was biased in appellant=s favor and that, although he had met many times

before trial with defense counsel, he had refused to speak with the prosecution.

Alcala testified that appellant was acting Adazed@ and Aweird@ when he and

Sepulveda returned to the hotel room, but he refused to go to the emergency room. He

seemed okay on Sunday, the family spent the day at the beach, and appellant drove

everyone back to San Antonio.

Appellant=s mother, Ninfa Gonzalez, testified that when appellant was a toddler,

he fell and hit his head on a cement patio. She took him to the hospital, where he was Xrayed and released. As a teen he had an accident while riding a motorcycle. When he got

home, his head was Aswelling[,]@ and Ninfa could Ahardly see his eyes.@

IV.C. The Week Between Appellant=s Fall and the Offense

Sepulveda testified that appellant seemed somewhat less depressed and in a better

mood after they returned from Corpus Christi.

Alcala testified that everything was normal, and Appellant went to work as usual

on Monday and Tuesday, but on Tuesday he went to an emergency room and was

diagnosed with a concussion, and he returned to work on Wednesday and Thursday.

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Michael Diaz, appellant=s crew leader at work, testified that in the week leading up

to Memorial Day weekend, he Awrote [appellant] up@ for the first time for leaving his

work area full of debris and not properly accounting for his tools. Appellant did not

mention feeling unwell.

Appellant=s co-worker, Theodore Cravens, was surprised when he learned of

appellant=s arrest. Appellant was always a mild, good-tempered person whom he had

never seen get annoyed. Cravens noticed nothing out of the ordinary about him either the

week before or the week after the offense. Cravens remembered appellant saying that he

had lost his sunglasses in Corpus Christi, but he did not say anything about a head injury.

IV.D. The Hours Immediately After the Offense

Appellant=s mother, Ninfa, testified that she was at home asleep during the early

morning hours of May 28 when she heard appellant=s truck. She met him at the door as

he let himself in. He said he had a headache, and she explained that he had a long history

of migraine headaches. After taking something for his headache, appellant went to bed in

the room that she kept for him. Ninfa said appellant went to bed with his clothes on,

which was unusual for him.

Ninfa testified that appellant did not tell her about the damage to his truck until

later that day. However, Ninfa conceded that she had previously given an audiotaped

statement in which she had said that, on his arrival at her house, appellant said someone

had hit his truck when it was parked in a Walmart parking lot.

Ninfa got up before appellant that morning intending to buy breakfast for herself

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and appellant, but she had to move appellant=s truck because it was blocking her own

truck. She noticed damage to the front passenger side, but she did not see any shell

casings inside of appellant=s truck. That was the only time she drove appellant=s truck

that weekend. Appellant=s truck stayed at her house until he took it in for repairs.

Ninfa conceded that, although appellant had told her that his truck had been

damaged in a Walmart parking lot, she told the insurance company the same story that

appellant did—that his truck had been hit in front her house.

IV.E. The Week Between the Offense and Appellant=s Arrest

Alcala testified that after their last exchange of angry texts on Friday evening,

May 27, she did not hear from appellant again until the next day when Appellant asked

Alcala to pick him up at Ninfa=s house. Appellant told Alcala that he needed to leave his

blue truck there for Ninfa to use because her truck was not running.

Sepulveda testified that, either the morning after the offense or the next day,

appellant called or texted him and said that he had been at Starling=s property on the night

of the offense. Sepulveda’s phone records showed that at 1:21 a.m. on June 1, he sent

two text messages to appellant. One read, AThe Notorious BBIBG. Remember Biggie

Smalls? Haha.@ Sepulveda agreed that Biggie Smalls was a rapper who had been shot to

death at a stoplight. Sepulveda could not remember having sent these texts and did not

know why he would have sent them to appellant.

On the night before his arrest, appellant texted Sepulveda that he was at a party at

Ninfa=s neighbor=s house, getting Afucked up@ or drunk. When Sepulveda joined

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appellant at this party, appellant tried to convince him to drive with him back to Corpus

Christi in search of his sunglasses.

Sepulveda agreed that appellant was doing essentially the same thing the weekend

after the offense as he had done the weekend of the offense: Agetting fucked up.@ His

behavior had not changed between the two events.

Diaz, appellant=s crew leader, testified that when the crew met during the week

after Memorial Day, one of its members commented that they would not be a real team

until they all Aduke[d] it out@ with one another. Appellant responded, AWould I like to

take [Diaz] outside the gate.@ Later Diaz said, AMark, just to clarify, you=d like to take me

out -- you would like to take me outside the gate to take me to lunch or something like

that?@ Appellant chuckled and said, AYeah, I guess,@ and mentioned McDonald=s. Diaz

let the issue drop, and the work week proceeded normally, but in hindsight he found

appellant=s comments unsettling.

IV.F. Defense Expert Testimony

Dr. James Merikangas, a clinical psychiatrist and neurologist, examined and

interviewed appellant and reviewed the emergency room records related to appellant=s

Corpus Christi fall. Those records included a computerized axial tomography (CAT)

scan that had ruled out bleeding in appellant=s brain. Merikangas also ordered and

reviewed: a magnetic resonance image (MRI) of appellant=s brain, and a positron

emission tomography (PET) scan; a glucose tolerance test; and a lab test that ruled out

autoimmune disease. Merikangas also reviewed the results of neuropsychological testing

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performed on appellant in 2012 and 2014 and listened to Sepulveda=s and Ninfa=s

testimony.

Merikangas concluded that appellant had suffered a concussion because of his

Corpus Christi fall. Appellant=s MRI revealed Awhite matter hyperintensities,@

abnormalities that were consistent with appellant having sustained a traumatic brain

injury (TBI) at some point. If the damage that caused the white matter hyperintensities

preceded the Corpus Christi fall, it would have worsened the effects of appellant=s

subsequent concussion.

Merikangas interpreted appellant=s PET scan as showing an abnormal distribution

of metabolic activity and areas with lower metabolic activity than one would see in a

normal person, indicating some kind of brain dysfunction.

Appellant=s pre-trial neuropsychological testing showed that he had a low-average

IQ of 89 and non-severe difficulties in thinking, reasoning, attention, and abstraction.

These results were consistent with the dysfunction that Merikangas believed the PET

scan showed in certain areas of appellant=s brain. The deficiencies detected by the

neuropsychological testing could have been caused by a TBI. The PET scan and

neuropsychological test results showed that appellant was Anot very intelligent, but he

also ha[d] deficiencies in using the intelligence that he ha[d].@

Merikangas testified that appellant=s PET scan results showed that his brain was

using less glucose than normal. If a person=s brain is using less glucose to begin with,

and then the person develops low blood sugar, the low blood sugar will worsen the

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situation. Appellant=s glucose tolerance test results showed that, after fasting for five

hours, appellant had an abnormally low blood sugar level in the hypoglycemic range.

Merikangas asserted that this test result showed that appellant had a tendency toward

hypoglycemia. Having a blood sugar level in the hypoglycemic range, albeit one lower

than appellant exhibited after five hours of fasting, could be enough by itself to cause a

person to enter an automatistic state.

In an automatistic state, a person=s Arational mind@ is disconnected from his Alower

mind,@ and the person acts involuntarily and forms no memories. A person in such a state

could engage in complex behaviors while appearing normal to an outside observer. For

example, a person who was familiar with guns and had a weapon handy could fire it and

kill someone while in such a state.

Merikangas noted that appellant had been drinking at the time of the offense and

that drinking alcohol can directly lower a person=s blood sugar. He further noted that

appellant had been taking Xanax which is in a class of drugs known to be capable of

producing automatistic behavior. Even if appellant normally ingested alcohol and Xanax

at the same time without any notable effects, a recent head injury could have disrupted

that equilibrium.

Based on his assessment and appellant=s self-report, Merikangas concluded that

appellant had experienced a sudden, acute, organically based dissociative episode with

amnesia. During this automatistic state, appellant was not acting voluntarily and had no

conscious desire to cause the results of his actions. Merikangas called it Aa perfect storm

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of bad circumstances that produced a terrible result.@

On cross-examination, Merikangas acknowledged that he: spent about an hour

interviewing and examining appellant; believed the death penalty should be abolished;

lectured extensively at defense attorney seminars; and testified almost exclusively for the

defense. Merikangas denied that he had a pattern of testifying that criminal defendants=

violent actions occurred when these defendants were in dissociative states caused by

some combination of brain damage, hypoglycemia, alcohol, and drugs.

Merikangas acknowledged that he expressly directed that no radiologist from the

testing center review and report on the results of appellant=s MRI and PET scans and that

in prior cases in which radiologists had issued reports, they reported normal results where

Merikangas found abnormalities. Merikangas also acknowledged that he had seen no

evidence that appellant had been showing symptoms of hypoglycemia in the hours before

the offense.

Merikangas admitted that if appellant told Starling, AI just shot a cop,@ it would

show that appellant was aware of what he had done. But Merikangas asserted that such a

statement would not necessarily show that appellant was conscious at the time of the

offense; it would only show that appellant had discovered the offense earlier than he

claimed. Merikangas also admitted that if appellant had eaten at about 4:00 p.m., as

Starling testified, it would be a significant difference from what appellant had told

Merikangas. But Starling was not credible in Merikangas’ view, and Merikangas

discounted the Chick-fil-A receipt because it did not show exactly what appellant had

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eaten, and it would not matter anyway because the testing showed that appellant was

hypoglycemic after five hours. Merikangas relied on what appellant told him about the

day of the offense and the week following it even though appellant had lied to his wife,

his mother, Sepulveda, the police, and the insurance company.

V. THE STATE=S REBUTTAL

The State offered the testimony of two experts who disputed Merikangas’s

methods and conclusions. They were Dr. Peter Fox and Dr. Brian Skop.

V.A. Fox

Fox testified that he holds a medical degree and specializes in neurology and

neuroimaging. At the time of appellant=s trial, he had served for 24 years as director of

the Texas Health Science CenterBSan Antonio=s (THSC-SA=s) Research Imaging

Institute, a Aresearch grade@ facility specializing in medical imaging. He was Vice-Chair

for THSC-SA=s Department of Radiology and appointed to its Department of Neurology,

Psychiatry, and Physiology. He was recognized as one of the most highly cited

neuroscientists in the world and was in the top ten for neuroimaging. About 99% of his

work consisted of reading medical images, including brain scans, and teaching others

how to do so. Fox testified that he was not being paid for his testimony.

Fox rejected Merikangas=s conclusion that appellant had experienced a

hypoglycemic attack, stating that it was Aextremely implausible and the evidence for it

[was] weak and contradictory.@ Fox stressed that it is very uncommon to experience

hypoglycemia at all unless one is diabetic, and there was no evidence that appellant was

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diabetic. Therefore, the issue was whether appellant had experienced the even lesscommon phenomenon of non-diabetic hypoglycemia, of which there are two types:

reactive hypoglycemia and fasting hypoglycemia.

Reactive hypoglycemia is an unusual syndrome in which blood sugar drops very

low a few hours after eating. It is generally associated with patients who have had certain

types of gastric surgery. There was no evidence that appellant had undergone such a

surgery. As to fasting hypoglycemia, Fox explained that anyone could experience this if

he went without food for long enough but that it takes several days and is normally only

seen in people with underlying liver disease, a tumor, or an endocrine disorder. No

evidence suggested that appellant had any such conditions.

According to Fox, the oral glucose test that Merikangas ordered was not the

appropriate method for diagnosing either reactive or fasting hypoglycemia, and

appellant=s fasting glucose level on that test had been in the normal range.

Based on Starling=s testimony and appellant=s bank records, Fox concluded that

appellant had not been fasting on the day of the offense but had eaten something at

Chick-fil-A around 4:00 or 5:00 p.m. Noting that the offense occurred at about 2:00 the

following morning, Fox stated that this period would not have been long enough to

produce fasting hypoglycemia.

Fox also emphasized that appellant had no history of fasting hypoglycemia.

Although it is remotely possible for alcohol consumption to cause a reduction in blood

sugar, this was unlikely in appellant=s case because there was no evidence that appellant

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had an underlying disorder that would cause him to experience chronic recurrent

hypoglycemia exacerbated by alcohol. If appellant had fasting hypoglycemia aggravated

by alcohol, appellant and those around him would have already known it because he

routinely drank a lot. Fox ruled out fasting hypoglycemia as a possible diagnosis.

Fox was skeptical of Sepulveda=s trial testimony about appellant=s fall in Corpus

Christi because Sepulveda had originally given a different account of the incident, and

Sepulveda=s testimony was inconsistent with appellant’s account of it to Fox. Fox

believed that appellant had at most experienced a mild concussion that had no material

effect on his behavior.

Fox also rejected Merikangas=s assertions about appellant=s neuropsychological

tests and brain scans. Although the neuropsychological tests indicated that appellant had

a history of depressive symptoms, they did not show any deficits in appellant=s

neuropsychological functioning. Appellant=s brain scans did not show any abnormality

or trauma. For example, the white matter hyperintensities identified by Merikangas were

in fact normal blood vessels.

Fox rejected the theory that appellant was in an automatistic state at the time of the

offense. To the extent appellant claimed to have no memory of the offense, Fox

distinguished amnesia from automatism because one can act intentionally even if he is

not forming memories.

Fox pointed out that appellant=s friends and family said his consciousness

remained intact during the alcoholic blackouts he had experienced in the past. These

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blackout episodes thus did not represent instances of automatistic behavior. Fox

acknowledged that a combination of alcohol and Xanax could induce automatistic

behavior, but the theory was far-fetched in this case in part because appellant had no

history of such episodes. Furthermore, automatism describes involuntary movements that

are typically very simple. The simpler the behavior, the more likely that the behavior

was a true automatism. To the extent Merikangas asserted that the opposite was true, Fox

testified that Merikangas was wrong.

In addition, appellant=s behavior immediately before, during, and after the offense

was inconsistent with his having been in an automatistic state. He had been driving

normally, but an automatistic person would have been driving erratically. Appellant then

stopped at the traffic light, and there was a period of delay during which he presumably

prepared the weapon. Further, the audiotape of the shooting was inconsistent with

automatistic behavior because the shots were Apaced,@ and their pace was Aremarkable.@

Then there was a pause, and the shots resumed.

Appellant drove away in control of his vehicle. To the extent that he swerved to

avoid hitting a traffic pole, Fox noted that someone fleeing the scene of a crime might do

that. Fox testified that it is much more common to lie than it is to engage in complex

automatistic behavior. Therefore, it was much more likely that appellant=s story was

fabricated. Because the only thing out of the ordinary in appellant=s behavior that night

had been his shooting at Vann, Fox was skeptical that firing the weapon at the deputy had

been a complex automatistic behavior.

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V.B. Skop

Skop, a general and forensic psychiatrist, examined and interviewed appellant to

determine whether his medical or psychological history might support his claim of

amnesia during the offense. Skop concluded that appellant was fabricating his claim and

had not been suffering hypoglycemia or automatism when he shot Vann.

Although appellant probably suffered a mild concussion about a week before the

offense, Skop testified that it would not have affected his ability to understand the nature

of his actions or have caused amnesia a week later. If Xanax had caused him to black

out, it would have done so at least two hours before the shooting based on appellant’s

account of when he took it. Similarly, any alcohol-induced blackout would have

happened many hours before the shooting.

Appellant told Skop that he did not know he had been involved in the shooting

until he talked to Starling on Wednesday morning, but appellant’s efforts to hide the

evidence started before then, and his lies about the damage to his truck indicated his

desire to leave Starling out of the picture.

Skop rejected the idea that appellant experienced hypoglycemia during the

shooting. It takes at least 24 hours without food to produce hypoglycemia, but Starling’s

testimony and appellant’s bank records showed he had eaten in the afternoon before the

shooting. Hypoglycemia produces progressive symptoms that start with hunger and end

in a coma. Between these two extremes are irritability, light-headedness, loss of

coordination, confusion, and delirium. If appellant had been experiencing hypoglycemia,

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his symptoms would have been noticeable to those around him before he blacked out.

Indeed, his symptoms would have been even worse by the time he got to his mother’s

house, but she reported at the beginning of the investigation that he had seemed normal.

The fact that he lied to her indicated that his upper-level cognitive functioning was

“pretty good” about an hour after the shooting. Furthermore, when Skop asked appellant

how he had been feeling before the shooting, he reported nothing consistent with

hypoglycemia.

As for the glucose test ordered by Merikangas, it has a false positive rate of about

25%, and appellant’s medical records showed that, when tested at various times before

the shooting, his fasting blood sugar levels had been normal or slightly high.

Skop also rejected the theory that appellant had been in an automatistic state

during the shooting. Appellant’s actions before and during the shooting were too

complex—driving, stopping, aiming, firing—and the sound of the gunfire would have

awakened him from such a state. Similarly, his actions afterwards—fleeing, making

phone calls, lying to his mother—were inconsistent with automatism.

Skop noted that the most common explanation for an alleged blackout in the

criminal context is that a defendant is lying. Skop also saw nothing about appellant=s

alcohol or drug use that would lead him to think that appellant was in an automatistic

state when he killed Vann. Even if he assumed that appellant was in an automatistic state

during the offense, Skop testified, appellant=s use of alcohol and Xanax had been

voluntary.

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Skop noted that appellant was depressed and under stress at the time of the

offense. He had a lot of repressed anger and was argumentative and malcontented. Skop

opined that on the night of the offense, appellant got drunk and decided to lash out. His

fabricated memory loss reflected a denial of responsibility.

VI. STATE=S PUNISHMENT PHASE CASE

The State presented evidence that appellant had an outburst at the end of a pre-trial

hearing when he stood up and threw some papers toward the gallery, exclaiming, AThis is

for the fucking media@ and then resisted deputies as they tried to remove him from the

courtroom. A deputy testified that, when they got him to the holding area, appellant said:

AI=m sorry. It=s nothing personal. I=m fighting for my life and I=ll do what I got to do.@

She took that as a threat.

A forensic examination of appellant=s phone showed that appellant had used an

image of a Desert Eagle pistol as his phone=s wallpaper, and on the afternoon preceding

his arrest, his phone had taken a photograph of a handgun that was for sale. Immediately

after the offense and immediately before appellant=s arrest, the phone had been repeatedly

used to browse internet pornography. Appellant=s texting history showed that he had

tried to sell his phone to a third party during the week between the offense and his arrest.

At a little after 1:00 a.m. on the day before his arrest, appellant texted that he was Agetting

fucked up.@ A few minutes later he began searching for information about the Corpus

Christi restaurant near which he had lost his sunglasses. Shortly after midnight on the

day of his arrest, appellant told Sepulveda that he was at a party Agetting fucked up@ and

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invited Sepulveda to join him.

The State concluded its punishment case by presenting testimony from Vann=s

family members.

VII. DEFENSE PUNISHMENT CASE

Appellant=s family members collectively testified that, although appellant drank

too much and got Aworked up@ about things that did not bother others, he was a loving

and attentive son and father who encouraged his children to pursue their goals in life.

They related the emotional and financial strain appellant experienced when his younger

son was born with hydrocephalus. The jury also heard of appellant=s kindness to

homeless people. A prison classification expert testified about TDCJ=s inmate

classification system, living conditions, and restrictions within each classification.

VIII. LEGAL SUFFICIENCY CLAIMS

In points of error nine and ten, appellant claims that no rational juror could have

found that he acted with the requisite culpable mental state or that he acted voluntarily

when he shot Vann. In point eleven, he says no rational juror could have found a

probability that he would commit criminal acts of violence that would constitute a future

danger to society.

VIII.A. Culpable Mental State

As charged here, a person commits capital murder if he (1) intentionally or

knowingly causes the death of (2) a peace officer who is in the official discharge of an

official duty, and (3) the perpetrator knows the victim is a peace officer. See TEX. PENAL

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CODE '' 19.02(b)(1), 19.03(a)(1). In point of error nine, appellant argues that no rational

juror could have found that he was aware that his conduct was reasonably certain to cause

Vann=s death because he was in an automatistic state when he shot Vann.

When reviewing the legal sufficiency of the evidence to support a conviction, we

consider the evidence in the light most favorable to the verdict and determine whether

any rational juror could have found the essential elements of the offense beyond a

reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 318B19 (1979); Adames v.

State, 353 S.W.3d 854, 860 (Tex. Crim. App. 2011). The trier of fact is the sole judge of

the weight and credibility of the evidence after drawing reasonable inferences from the

evidence. See Adames, 353 S.W.3d at 860. On appellate review, we therefore determine

whether the necessary inferences made by the trier of fact are reasonable based on the

cumulative force of all the evidence. See id.

AMotive is a significant circumstance indicating guilt.@ Guevara v. State, 152

S.W.3d 45, 50 (Tex. Crim. App. 2004). So are efforts to conceal evidence, contradictory

statements, and dubious explanations to investigators. Id. Intent to murder can be

inferred from circumstantial evidence such as a defendant=s acts and words and the extent

of the victim=s injuries. See Ex parte Weinstein, 421 S.W.3d 656, 668B69 (Tex. Crim.

App. 2014); Patrick v. State, 906 S.W.2d 481, 487 (Tex. Crim. App. 1995).

Appellant’s motive, words, and actions proved his culpable mental state. He had

reason to resent law enforcement because his Chihuahua job opportunity had been

thwarted in part by tickets, and he had been rejected as a recruit by a local law

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enforcement agency, a circumstance on his mind right before the shooting. When Vann

passed him, he hurried to catch up with him and fired forty-six shots at him, causing

devastating and instantly fatal injuries. Shortly after the shooting, he admitted it to

Starling and chuckled about it. He later tried in various ways to conceal his guilt. The

jury was free to disregard Marikangas’s testimony and instead credit that of Fox and

Skop that appellant’s ability to form intent was intact at the time of the shooting.

Viewing the evidence in the light most favorable to the verdict, a rational jury could have

found that appellant acted intentionally or knowingly when he killed Vann.

Point of error nine is overruled.

VIII.B. Voluntariness

In point of error ten, appellant claims that the evidence was legally insufficient to

establish that he acted voluntarily when he killed Vann. See TEX. PENAL CODE § 6.01(a).

Appellant argues that A[h]is history of head injuries and hypoglycemia, combined with his

chronic use of alcohol and Xanax, created an automatistic state that resulted in an

involuntary [act].@

Section 6.01(a) states in relevant part that A>a person commits an offense only if he

voluntarily engages in conduct, including an act” or “an omission.@ “Voluntariness”

means a person’s “physical body movements. If those physical movements are the

nonvolitional result of someone else=s act, are set in motion by some independent

non-human force, are caused by a physical reflex or convulsion, or are the product of

unconsciousness, hypnosis, or other nonvolitional impetus, that movement is not

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voluntary.” Rogers v. State, 105 S.W.3d 630, 638 (Tex. Crim. App. 2003).

Voluntariness is a separate issue from mental state. Whatley v. State, 445 S.W.3d 159,

166 (Tex. Crim. App. 2014).

The State need only prove voluntariness when the evidence raises an issue about

it. Alford v. State, 866 S.W.2d 619, 624 n.8 (Tex. Crim. App. 1993). In determining

whether the evidence was sufficient to prove beyond a reasonable doubt that the

accused=s actions were voluntary within Section 6.01(a)=s meaning, we apply the Jackson

standard and look at the evidence and inferences from it in the light most favorable to the

verdict. See Whatley, 445 S.W.3d at 166.

Appellant raised a Section 6.01(a) voluntariness issue through Merikangas’s

testimony that appellant was in an automatistic state and engaging in involuntary physical

bodily movements when he killed Vann. Accordingly, the State was required to satisfy

Section 6.01(a). See Alford, 866 S.W.2d at 624 n.8. It did. Fox and Skop testified that

appellant was not in an automatistic state when he shot Vann, and his physical bodily

movements that resulted in Vann=s death were voluntary. The jury was entitled to reject

Merikangas=s contrary opinion. See Adames, 353 S.W.3d at 860.

Point of error ten is overruled.

VIII.C. Future Dangerousness

In his eleventh point of error, appellant claims that the evidence was legally

insufficient to support the jury=s affirmative answer to the Afuture dangerousness@ special

issue because he was a family man with no violent criminal history whose Aconscious

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mind was in total shutdown at the time of the shooting.@

The future dangerousness special issue requires the jury to determine Awhether

there is a probability that the defendant would commit criminal acts of violence that

would constitute a continuing threat to society.@ TEX. CODE CRIM. PROC. art. 37.071, '

2(b)(1). In deciding this issue, the jury is entitled to consider the evidence admitted at

both the guilt and punishment phases of trial. Devoe v. State, 354 S.W.3d 457, 462 (Tex.

Crim. App. 2011). We review the evidence in the light most favorable to the verdict.

Jackson, 443 U.S. at 319; Williams v. State, 273 S.W.3d 200, 213 (Tex. Crim. App.

2008).

Assessing the evidence and all reasonable inferences from it in this light, we

determine whether any rational trier of fact could have believed beyond a reasonable

doubt that there is a probability the defendant would commit criminal acts of violence

that would constitute a continuing threat to society. Williams, 273 S.W.3d. at 213. The

offense=s circumstances alone may be sufficient to support an affirmative answer to the

future dangerousness special issue. Buntion v. State, 482 S.W.3d 58, 66 (Tex. Crim.

App. 2016); Trevino v. State, 991 S.W.2d 849, 854 (Tex. Crim. App. 1999) (A[A] jury can

rationally infer future dangerousness from the brutality of the offense.@). An affirmative

answer to the future dangerousness issue can also be supported by evidence of a

defendant’s lack of remorse and willingness to engage in future violence. See Daniel v.

State, 485 S.W.3d 24, 32 (Tex. Crim. App. 2016) (noting that a lack of remorse may be

probative of future dangerousness); Trevino, 991 S.W.2d at 854 (A[F]uture dangerousness

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can be inferred from evidence showing a lack of remorse and/or indicating an expressed

willingness to engage in future violent acts.@).

Appellant=s reliance on his lack of a violent criminal history is misplaced. See

Barley v. State, 906 S.W.2d 27, 30B31 (Tex. Crim. App. 1995) (explaining that even a

non-violent criminal history can lead a reasonable juror to find a probability of future

dangerousness when the offenses reflect an escalating and on-going pattern of disrespect

and continued violations of the law). Appellant’s jury could have reasonably inferred

from the evidence that, in 1988 and 1989, appellant engaged in conduct that led to his

arrest for vehicle burglaries, unlawfully carrying a weapon, DWI, and attempting to elude

an officer. In 2000, he drove with an invalid license, and the jury could have reasonably

inferred that he continued to do so after that date and often drove while intoxicated.

When he lost his right to buy guns, he circumvented the restriction by persuading his wife

to buy them for him, and he then used one of those guns to murder Vann. The jury could

have reasonably concluded that appellant demonstrated an on-going and escalating

pattern of disrespect for and continued violations of the law. See id.

Further, the facts of the offense are especially heinous. Appellant murdered Vann,

a total stranger to him, without provocation, by firing forty-six shots at him with a rifle.

Appellant paused in the middle of firing to rest or switch his trigger finger before

resuming firing. The resulting Amini explosion@ inside Vann=s vehicle destroyed the

deputy=s body. The sheer brutality of the instant killing could indicate to a jury that

appellant posed a future danger to society. Even if the jury had been inclined to find that

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appellant=s conduct stemmed from an isolated incident of rage, it could have rationally

concluded that appellant=s Arage is of such an uncontrollable and extreme nature that he is

a continuing danger to society.@ Sonnier v. State, 913 S.W.2d 511, 517 (Tex. Crim. App.

1995).

In addition, the jury could have reasonably found that appellant displayed a lack of

remorse and expressed a willingness to engage in future violent acts. Immediately after

murdering Vann, appellant admitted to committing the crime and chuckled about it.

Hours later, he browsed pornography sites. During the following week, he engaged in a

cover-up, re-loaded the murder weapon’s high-capacity magazine, made a threatening

comment to his supervisor, continued to browse pornography sites, focused on finding his

lost sunglasses, shopped for more firearms, continued to get Afucked up@ on alcohol, and

partied.

When uniformed SWAT officers arrived in a clearly marked armored vehicle and

approached his home, appellant tried to retreat to a bathroom where the murder weapon

and another firearm were located. Although those guns were not loaded, the jury could

have inferred, as argued by the prosecutor, that appellant forgot that fact in the stress of

the moment. Appellant then struggled against the officers who prevented him from

barricading himself inside the bathroom, took him to the ground, and handcuffed him.

And at the end of a pretrial proceeding, appellant disrupted the courtroom and struggled

against and threatened the deputies who were charged with escorting him to the holding

area, stating, AI=ll do what I got to do.@ See Trevino, 991 S.W.2d at 854.

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Point of error eleven is overruled.

IX. SUPPRESSION RULINGS

In points of error twelve through fifteen appellant challenges the trial court=s

pretrial rulings denying three of his motions to suppress: a AMotion to Suppress

Statements@ and a AMotion to Dismiss Due to Sixth Amendment Violation,@ both filestamped February 18, 2014, and a AMotion to Suppress,@ file-stamped June 26, 2015. He

also challenges an evidentiary ruling the trial court made during the suppression hearing.

IX.A. Police Interrogation Techniques

In point of error twelve, appellant claims that the trial court erred when it

sustained the State=s objections to his questions of Detective Mahon about police

interrogation techniques. Appellant says these questions were relevant to his theory that

the police used a Adiscomfort and enticement@ technique to coerce his statement. Relying

primarily on Crane v. Kentucky, 476 U.S. 683 (1986), appellant asserts that the trial court

should have allowed him to ask these questions. Assuming that this issue was preserved,

it is without merit.

When defense counsel cross-examined Mahon at the suppression hearing, Mahon

acknowledged that he had received training in interviewing and interrogation. Trial

counsel then asserted that, Atactically, as a police officer, it is important to as early as

possible to get someone=s story, isn=t it?@ When Mahon asked for clarification, trial

counsel asked, AWell, don=t you commit them to a certain scenario?@ Mahon answered,

ANot necessarily. There=s a whole bunch of different techniques.@ Trial counsel

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continued, AWell, let=s talk about that. In interrogating an arrested person BB [.]@

The prosecutor interrupted the question, objecting on relevance grounds and

arguing that trial counsel had Agone beyond the scope of the motion as filed by defense

counsel at this point. He is now talking about theories of interrogation.@ After the trial

court sustained the objection, defense counsel asserted that he was talking about theories

of interrogation Awith regard to the specific motion that I filed.@ The trial court again

sustained the State=s objection.

The cross-examination continued:

Q.

(BY [DEFENSE COUNSEL]) Okay. So, in any event, when

you go in to question an arrested person, are you trained to make them

comfortable and put them at ease?

A.

No, I mean, obviously, I don=t think that is a big part of my

training. It may have been a part, but I don=t recall that off the top of my

head, to make them feel comfortable.

Q.

Well, but aren=t you supposed to try to establish rapport with

the individual that you=re questioning?

A.

Again, all those --

[PROSECUTOR]: Judge, I=m going to object to the

relevance. I understand that the previous question might go to some

coercive or threatening behavior, but this seems to be beyond the motion.

The trial court sustained the objection. Trial counsel continued his cross

examination by asking about Mahon’s approach to interrogating appellant:

Q.

Okay. And is it fair to say that in interrogating [appellant],

part of your approach in the beginning was to make him comfortable, to put

him at ease, and to establish a rapport with him?

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A.

right away.

That=s a technique. In this case, obviously, I did not do that

Q.

Okay. So, to the best of your ability, tell the Court what

approach you used in the very beginning of this interview?

A.

Okay, there=s not a name behind it, but basically I just brought

the fact that I believed that it was a foregone conclusion that we had

evidence in support of capital murder and I wanted to let him know that.

From there, giving him an opportunity to tell me his side of the story, the

truth, you know, information, and then go from there, basically.

We review a trial court=s ruling on the admission of evidence for an abuse of

discretion. Colone v. State, 573 S.W.3d 249, 263-64 (Tex. Crim. App. 2019). A trial

court Aabuses its discretion when it acts without reference to any guiding rules and

principles or acts arbitrarily or unreasonably.@ Rhomer v. State, 569 S.W.3d 664, 669

(Tex. Crim. App. 2019); see Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App.

2010) (stating that a trial court does not abuse its discretion unless its determination Alies

outside the zone of reasonable disagreement@).

ARelevant evidence is evidence which has any tendency to make the existence of

any fact of consequence more or less probable than it would be without the evidence.@

Gonzalez v. State, 544 S.W.3d 363, 370 (Tex. Crim. App. 2018) (citing Texas Rule of

Evidence 401). While Arelevant evidence is generally admissible, irrelevant evidence is

not.@ Gonzalez, 544 S.W.3d at 370 (citing Texas Rule of Evidence 402).

The issue in the suppression hearing was whether appellant gave his custodial

statement voluntarily. Evidence about the circumstances of appellant’s interrogation

would have been relevant to that issue. The trial court’s rulings did not prevent appellant

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from asking questions about the circumstances of his interrogation, and in fact appellant

developed the evidence about those circumstances. In contrast, the questions that the trial

court disallowed were not designed to address the circumstances of appellant’s

interrogation because they were about interrogation techniques generally, not

interrogation techniques used on appellant.

Appellant’s reliance on Crane is misplaced. Crane stands for the proposition that

a defendant is entitled to introduce before his jury Aevidence about the manner in which a

confession was obtained.@ See 476 U.S. at 691. But here, defense counsel=s questions in

a pretrial hearing were about potential interrogation or interview techniques that Mahon

or police in general could have used while interviewing appellant, rather than techniques,

if any, that Mahon did use. Techniques that Mahon could have used—but did not—

would not be relevant under Crane, even in front of a jury.

Point of error twelve is overruled.

IX.B. Voluntariness of Custodial Statements

In point of error thirteen, appellant argues that Ahis statements to the police were

involuntary and were coerced and enticed from him.@ In support of his argument he cites

evidence that he was physically uncomfortable, out of breath, and in pain during the four

hours that elapsed between his arrest and his statement. He specifies that the handcuffs

were painful and that he was denied water.

We review a trial court=s ruling on a motion to suppress under a bifurcated

standard of review. State v. Ruiz, 577 S.W.3d 543, 545 (Tex. Crim. App. 2019). AWe

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give almost total deference to the trial court=s findings of fact and review de novo the

application of the law to the facts.@ Id. We view the record in the light most favorable to

the trial court=s ruling and uphold the ruling if the record supports it and if it is correct

under any theory of the law applicable to the case. Id. The voluntariness of a custodial

statement depends on the circumstances under which it was taken. Creager v. State, 952

S.W.2d 852, 856 (Tex. Crim. App. 1997).

The record shows that appellant was arrested at 3:39 p.m. and advised of his rights

while still at his house. He was then taken to CID and placed into an interview room for

a couple of hours. During that time, he was handcuffed from behind by two sets of

handcuffs, giving his arms and shoulders greater latitude, and his handcuffs were

loosened during his wait, and in one instance the handcuffs were removed in turn. The

deputy tending to him during this interval was responsive to his complaints about his

discomfort and made note of the adequate space between the cuffs and appellant’s wrists.

When appellant was taken to a second interview room, the handcuffs were removed,

Mahon again advised him of his Article 38.22 rights, and appellant acknowledged them

in writing, and he was given water when he asked for it.

The trial court concluded that: appellant was in lawful custody when he made his

videotaped statement; he was advised of his rights in compliance with Article 38.22

before he made his statement; he knowingly, intelligently, and voluntarily waived these

rights and made his statement under voluntary conditions; and appellant=s statements

before his invocation of the right to counsel were voluntarily made and were therefore

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admissible. Our de novo review confirms these conclusions.

The videotapes, Mahon’s testimony, and the documentary evidence offered at the

suppression hearing proved that appellant was warned in accordance with Article 38.22,

he understood those warnings, and no one threatened, coerced, or induced him to make a

statement. His handcuffs were loosened for him, he was double cuffed for greater ease of

movement, the deputy tending to him was responsive to his complaints about the

handcuffs, and there was room between the cuffs and appellant’s wrists. Although the

deputy did not bring appellant water in the first interview room, water was provided to

him in the second interview room.

Point of error thirteen is overruled.

IX.C. Sixth Amendment Violation and Delay in Magistration

In point of error fourteen, appellant claims that his Sixth Amendment right to

counsel was violated because police interrogated him after the arrest warrant affidavit

was filed, and its filing marked the beginning of formal adversarial proceedings against

him. He also argues that there was no reason for failing to take him before a magistrate

sooner than was done and that the only appropriate remedy was dismissal of his case.

The Sixth Amendment right to counsel attaches when the prosecution has

commenced. Rubalcado v. State, 424 S.W.3d 560, 570 (Tex. Crim. App. 2014).

Prosecution commences with the “first appearance before a judicial officer at which the

defendant is told of the formal accusation against him and restrictions are imposed on his

liberty.” Id. (quoting Rothgery v. Gillespie County, 554 U.S. 191, 198 (2008)) (internal

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quotation marks omitted). Since appellant was not taken before a judicial officer when

the warrant affidavit was filed, his Sixth Amendment right to counsel did not attach at

that point.

To the extent that appellant complains that he was not taken to a magistrate

without unnecessary delay, we find no error because the investigation was ongoing after

appellant’s arrest. Specifically, in the interim between appellant’s arrest and his

appearance before a magistrate, police were searching his house and truck, and Mahon

was interviewing appellant’s wife and talking to other investigators. Investigation is not

an unnecessary delay. See Moya v. State, 426 S.W.3d 259, 263 (Tex. App.—Texarkana

2013, no pet.) (holding that continuing the investigation does not constitute “unnecessary

delay” under Article 15.17).

Point of error fourteen is overruled.

IX.D. Search Warrant=s Lack of Particularity

In point of error fifteen, appellant alleges that the trial court erred when it denied

his motion to suppress the evidence seized from his truck because the search warrant did

not specify what was to be seized from the truck. He contends that law enforcement

officers violated his Fourth Amendment rights when they searched and photographed his

truck and removed parts of the interior for gunshot residue testing.

The search warrant specified two locations to be searched: appellant’s residence

and “also in Bexar County, Texas a blue Ford F150 pick-up truck, Lic. AK7 0144 which

is located at Jordan Ford, 13850 Judson Road.” The warrant commanded officers to

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search those places for firearms, ammunition, and “other evidence that would associate

Suspect with” the shooting death of Vann. It continued, “In addition, you are to search

for and seize the blue Ford pick-up truck . . . from Jordan Ford.” Thus, with respect to

the truck it commanded officers to look for it, seize it, and search it for evidence related

to Vann’s murder. Appellant claims that this was insufficient to authorize officers to take

pictures of the truck’s interior and to seize its headliner and driver’s seat to test for

gunshot residue.

The Fourth Amendment requires warrants to “particularly” describe “the place to

be searched, and the persons or things to be seized.” U.S. CONST. AMEND. IV. The

requirements for particularity “can vary according to the thing being described. Those

things subject to First Amendment concerns . . . must be described with greater

particularity than other things.” Walthall v. State, 594 S.W.2d 74, 78 (Tex. Crim. App.

1980); see also Stanford v. Texas, 379 U.S. 476, 485 (1965) (“[T]he constitutional

requirement that warrants must particularly describe the ‘things to be seized’ is to be

accorded the most scrupulous exactitude when the ‘things’ are books, and the basis for

their seizure is the ideas which they contain.”).

A warrant’s description of items to be seized is sufficiently particular if the officer

executing the warrant will reasonably know what items are to be seized. Harmel v. State,

597 S.W.3d 943, 962-63 (Tex. App.—Austin 2020, no pet.). A warrant that failed to

describe “the items to be seized at all” was “plainly invalid.” Groh v. Ramirez, 540 U.S.

551, 557-58 (2004). But a warrant that authorized the search for and seizure of evidence

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relating to “the crime of false pretenses with respect to Lot 13T” was sufficient,

notwithstanding an additional, general clause referencing “other evidence of . . . crime[.]”

Andresen v. Maryland, 427 U.S. 463, 480-81 (1976).

The warrant here did not implicate First Amendment concerns, and it did not fail

to describe the items to be seized. It specified that the truck itself was to be seized, and it

specified that it was to be searched for firearms, ammunition, and other evidence that

would connect appellant to Vann’s murder. These commands were sufficiently particular

to authorize a search of the truck’s interior.

Even if the warrant had failed in its particularity, any error in admitting the

evidence found within the truck would have been harmless. The evidence of appellant=s

identity as the shooter was overwhelming, and the evidence found within the truck—

gunshot residue and an unfired cartridge—was not specific to Vann’s shooting and were

unremarkable discoveries given appellant’s enthusiasm for guns. Appellant, his truck,

and his rifle were linked to the shooting in multiple other ways. We are confident that no

substantial and injurious effect or influence resulted from the admission of this evidence.

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

Point of error fifteen is overruled.

X. VOIR DIRE

In point of error eight, appellant alleges that the trial court erred under Morgan v.

Illinois, 504 U.S. 719 (1992), when it restricted defense counsel=s questions to

prospective jurors about their views on punishment. Appellant states that he attempted to

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ask his AMorgan@ question of twenty different prospective jurors and that three of those

twenty served on the jury, forcing him to speculate about their views on capital

punishment. Even assuming that appellant was prevented by the trial court’s rulings from

asking a proper question on voir dire, this point is without merit because appellant did not

exhaust his peremptory strikes.

To establish harm from a trial court’s ruling disallowing a proper question of a

potential juror, a defendant must show: (1) he exhausted all of his peremptory

challenges; (2) he requested more challenges; (3) his request was denied; and (4) he

identified an objectionable juror on whom he would have exercised a peremptory

challenge. Anson v. State, 959 S.W.2d 203, 204 (Tex. Crim. App. 1997) (plurality op.).

A defendant’s failure to exhaust his peremptory strikes mitigates any harm from

disallowing a proper question on voir dire because the leftover strikes demonstrate that

the defendant was not forced to waste needed strikes before the jury was seated. Janecka

v. State, 937 S.W.2d 456, 471 (Tex. Crim. App. 1996); see also Sanchez v. State, 165

S.W.3d 707, 713, 713 n.16 (Tex. Crim. App. 2005) (stating that Texas Rule of Appellate

Procedure 44.2(b) is the appropriate harm standard to apply when voir dire is conducted

in a group setting but implying that the Anson test applies to capital cases, in which

prospective jurors are questioned individually); Rich v. State, 160 S.W.3d 575, 577 (Tex.

Crim. App. 2005) (same).

Appellant did not exhaust his fifteen peremptory challenges. See TEX. CODE

CRIM. PROC. art. 35.15(a). Thus, he fails to satisfy even the first of the four

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requirements for showing harm from the trial court=s alleged error.

Point of error eight is overruled.

XI. PHOTOGRAPHS

In point of error sixteen, appellant asserts that the trial court erred when it

overruled his objections to State=s Exhibits 39 through 60, certain crime scene

photographs of Vann=s body in the patrol car, the interior of the patrol car, and Vann=s

body on the ground after it was removed from the patrol car. In point of error seventeen,

he argues that the trial court erred when it overruled his objections to State=s Exhibits

285, 310 through 316, and 318 through 321, autopsy photographs. In both points of

error, appellant argues that the photographs= admission violated his due process and

Eighth Amendment rights, and their prejudicial effect substantially outweighed their

probative value.

Appellant failed to preserve his due process and Eighth Amendment claims

because he did not object on those grounds when the photographs were offered at trial.

See TEX. R. APP. P. 33.1. To the extent that he relies on his pretrial “Motion to Preclude

Admission of Prejudicial Photographs” for preservation of his Eight Amendment and due

process claims, it was premature. Furthermore, it was too vague with respect to these

claims because it made a fleeting, generic reference to the Eighth and Fourteenth

Amendments in its introductory paragraph and later made a passing assertion that the

Eighth Amendment “requires a greater degree of accuracy and fact finding” in a capital

case than in a non-capital case. Appellant did, however, urge the trial court to exclude

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the photographs under Texas Rule of Evidence 403. Therefore, we will consider whether

the photographs were admitted in violation of Rule 403.

Rule 403 requires that a photograph possess some probative value and that its

inflammatory nature not substantially outweigh that value. Williams v. State, 301 S.W.3d

675, 690 (Tex. Crim. App. 2009). We review a trial court=s admission of photographs

over a Rule 403 objection for an abuse of discretion. Id.

We examine several factors, including the photographs= probative value, their

potential to impress the jury in some irrational and indelible way, the time needed to

develop the evidence, and the proponent=s need for the photographs. Prible v. State, 175

S.W.3d 724, 733 (Tex. Crim. App. 2005). We also consider their number, gruesomeness,

detail, and size; whether they are in color, are close-ups, and depict a clothed versus a

naked body; the availability of other means of proof; and other circumstances unique to

the individual case. Williams, 301 S.W.3d at 690.

Where elements of a photograph are genuinely helpful to the jury in making its

decision, and the photograph=s power Aemanates from nothing more than what the

defendant has himself done[,] we cannot hold that the trial court has abused its discretion

merely because it admitted the evidence.@ Sonnier, 913 S.W.2d at 519; see Prible, 175

S.W.3d at 734 n.20.

XI.A. Scene Photographs

We turn first to State=s Exhibits 39 through 60. These color photographs as they

appear in the record measure roughly 5 x 7 inches each. Exhibits 39 through 49 depict

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Vann=s body as it was positioned in the car and the car=s interior as it looked when the

offense was discovered. The photos are taken from various angles and offer different

details. Shattered glass and heavy blood and tissue spatter are evident, but Vann=s

injuries are not clearly shown. Exhibits 50 through 53 are similar photographs of the

vehicle=s interior, taken after Vann=s body was removed.

The crime scene investigator who took these photographs testified that part of her

purpose was to document the distinctive pattern of blood and tissue spatter she

encountered inside Vann=s patrol car. She particularly noted the multi-directional angle

of the spatter as well as the distance that it traveled across the vehicle=s interior,

suggesting that it was consistent with multiple shots from a high-powered weapon.

State=s Exhibits 54 and 55 show that Vann=s service weapon was holstered at his

side, and the holster was snapped closed. State=s Exhibits 56 and 57 show that the

magazine for Vann=s weapon was full.

State=s Exhibits 58 through 60 depict Vann=s body after it had been removed from

the patrol car and more clearly depict the damage done to his body. Collectively, these

photographs show that Vann=s head has essentially collapsed into his chest. The front of

his uniform, which looks soaked, presumably with blood, has been torn open by the

bullets that hit him. His face and torso are covered in blood, and massive damage to the

right side of his face, neck area, chest, and upper abdomen is apparent.

XI.B. Autopsy Photographs

State=s Exhibits 285, 310 through 316, and 318 through 321 are also in color and

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measure about 5 x 7 inches. Referring to these exhibits, Dr. Molina testified that

autopsies involve a process of documenting the subject=s injuries and disease processes, if

any, and that photographs are a vital part of this process. She explained that these

photographs showed Vann=s body after it had been cleaned, they were a small portion of

the total number of autopsy photographs taken, and they were important for the jury to

see because Vann=s injuries could not Areally be adequately described in a picture or with

words@ as might be possible in other cases. They helped Molina to explain the unique

kind of damage caused by a high velocity weapon such as a rifle and the difficulties in

identifying the total number of entrance wounds Vann sustained.

Molina described State=s Exhibit 285, a close-up of Vann=s face, as an

identification photograph used to link him to a unique case number. The photograph

depicts damage to Vann=s face, including a large laceration. State=s Exhibits 310 and 312

show the facial laceration and extensive damage to Vann=s neck and upper chest area

from different angles. Molina testified that she could not adequately describe or diagram

the injuries to this area of Vann=s body or the number of entrance wounds. She used the

photographs to point out eight entrance wounds for the jury and to emphasize why she

could only confirm the minimum number of rifle wounds Vann received.

State=s Exhibit 311 focuses on the area between Vann=s right ear and the top of his

head. It depicts various injuries to his scalp, ear, and cheek, as well as a bullet entrance

wound on the right temple. State=s Exhibits 313 through 321 focus on Vann=s torso from

different angles and distances. These photographs collectively show large lacerations,

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skin tears, additional bullet entrance wounds, exit wounds, and bruising. Some of these

photos also depict abrasions and scratches that Molina opined were caused by flying

debris or items in Vann=s pockets as his chest ballooned out from the impact of the rifle

rounds.

XI.C. Analysis

The complained-of photographs were relevant to and probative of the capital

murder charge, particularly intent. Besides showing Vann=s wounds and assisting the

medical examiner in explaining them, the photographs corroborated witness testimony

about the crime scene and the nature of the weapon used in the offense. See Prible, 175

S.W.3d at 733, 735. The danger of unfair prejudice did not substantially outweigh the

photographs= probative value. The photographs’ power emanated primarily from

appellant’s actions. See Sonnier, 913 S.W.2d at 519. Under these circumstances, the trial

court did not abuse its discretion by admitting these photographs.

Points of error sixteen and seventeen are overruled.

XII. JUSTIN VANN=S TESTIMONY

In point of error eighteen, appellant argues that the trial court erred at the guilt

phase when it overruled his relevance objections to the testimony of Vann=s twenty-threeyear-old son, Justin. Appellant argues that Justin=s testimony was calculated to

improperly appeal to the jury=s emotions by painting a sympathetic portrait of Vann.

Appellant contends that he was harmed by this testimony because it came at the end of

trial and thus it had a Arecency effect@ on the jury.

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XII.A. The Objections and Testimony

Immediately before Justin testified, defense counsel objected that the testimony

would be Asimply an appeal to prejudice and passion.@ Defense counsel asserted that

there could be no probative value to Justin=s testimony since appellant had already

stipulated to Vann=s identity. The trial court overruled the objection.

When Justin took the stand, the prosecutor elicited his name and age without

objection. But when the prosecutor asked Justin how many children Vann had, defense

counsel lodged a relevance objection, asserting that the answer would have no probative

value. The trial court overruled the objection. Justin explained that his father had three

children: two sons and a daughter.

The prosecutor then asked, AAnd what are you currently doing right now? Are you

working and going to school?@ Justin began to answer, AI=m currently a student -- ,@ but

was cut off by defense counsel=s request for Aa continuing running objection to this.@ The

trial court granted the request but overruled the objection. Justin then testified that he

was pursuing a master=s degree in biomedical science with the goal of becoming a

medical doctor and that his brother Kenny was pursuing a bachelor=s degree in

international studies and international commerce.

Over defense counsel=s renewed relevance objections, Justin testified that Vann

had been a United States Marine before becoming a police officer. Vann and his first

wife, Justin and Kenny=s mother, divorced when Justin was in first grade. Justin and

Kenny lived with their father after the divorce until Vann=s death. Justin also testified

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that Vann worked several side jobs to provide for them. When Justin was in seventh

grade, Vann married his second wife, Yvonne. Yvonne helped Vann raise Justin and

Kenny. Justin thought of Yvonne as his mother.

Justin testified that he was at home sleeping when he learned of his father=s death

about two hours after the offense. Defense counsel objected that the prosecutor was

about to introduce inappropriate victim-impact testimony, and the trial court overruled

the objection. The prosecutor then asked: AAnd from your understanding, where was

your dad when he was killed?@ Justin responded, AHe was on patrol, just doing his

nightly routine. He worked nights. And that=s where I thought he was at.@

The prosecutor passed the witness after this response. Defense counsel declined to

cross-examine Justin, and the prosecutor rested the State=s case-in-chief.

XII.B. Analysis

Some victim-background evidence is admissible at the guilt phase to provide

framework and context. See Renteria v. State, 206 S.W.3d 689, 705B06 (Tex. Crim. App.

2006) (finding mother=s sometimes-tearful testimony about where the victim attended

school, the type of student she was, and what she liked to do was not victim-impact

testimony because it did not concern how the murder affected the mother or her family=s

life); Matchett v. State, 941 S.W.2d 922, 931 (Tex. Crim. App. 1996) (holding no error in

overruling objection to widow’s testimony that she and the victim had been married for

twenty-five years, they had five children, and he was home alone on the night of his

murder). But victim Acharacter@ evidence, which Aconcerns good qualities possessed by

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the victim,@ is usually inadmissible at the guilt phase because it is irrelevant or unfairly

prejudicial. See Mosley v. State, 983 S.W.2d 249, 261 (Tex. Crim. App. 1998).

Justin’s testimony consisted of biographical information. It did not touch on how

the murder affected him or others, nor did it touch on Vann’s good qualities, so it was not

victim-impact testimony or character evidence. See Renteria, 206 S.W.3d at 706. The

trial court did not err in overruling the objections to it. Even if it had been victim-impact

evidence, its admission would not have warranted reversal because it did not affect

appellant=s substantial rights. See TEX. R. APP. P. 44.2(b); see also Gonzalez, 544 S.W.3d

at 373 (stating that the erroneous admission of evidence is non-constitutional error). The

evidence of appellant=s guilt was overwhelming, and Justin=s testimony was not

inflammatory, so its admission could have had no substantial and injurious effect on the

jury’s verdict. See TEX. R. APP. P. 44.2(b).

And contrary to appellant=s representation, Justin=s testimony was not the last

testimony the jury heard before deliberating on the issue of guilt. Rather, Justin=s

testimony represented the end of the State=s guilt-phase case-in-chief. The defense then

presented a lengthy case, and the State thereafter presented a rebuttal case.

Point of error eighteen is overruled.

XIII. LESSER-INCLUDED OFFENSE

In point of error three, appellant alleges that the trial court erred at the guilt phase

when it denied an instruction on the lesser-included offense of criminally negligent

homicide. Appellant contends that the ruling violated the Eighth and Fourteenth

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Amendments to the United States Constitution and Article I, Sections 13, 15, and 19 of

the Texas Constitution.

We do not consider appellant=s state constitutional claims because he has

inadequately briefed them. See TEX. R. APP. P. 38.1(i); Wolfe, 509 S.W.3d at 342B43;

Lucio, 353 S.W.3d at 877B78; Murphy, 112 S.W.3d at 596.

As for his federal due process claims, we use a two-step test to decide whether a

trial court should have charged the jury on a lesser-included offense. See Bullock v.

State, 509 S.W.3d 921, 924 (Tex. Crim. App. 2016). First we determine whether the

offense at issue is a lesser included of the charged offense. See id.; see also TEX. CODE

CRIM. PROC. art. 37.09 (providing that an offense is a lesser-included offense if it is

established by proof of the same or less than all the facts required to establish the

commission of the charged offense). We have previously recognized that criminally

negligent homicide is a lesser-included offense of murder, and therefore, of capital

murder. Cardenas v. State, 30 S.W.3d 384, 392B93 (Tex. Crim. App. 2000). Appellant

accordingly satisfies the first step.

In the second step we ask whether the record contains some evidence that would

permit a rational jury to find that the defendant is guilty only of the lesser offense.

Bullock, 509 S.W.3d at 924B25; Hall v. State, 225 S.W.3d 524, 536 (Tex. Crim. App.

2007). Although anything more than a scintilla of evidence may suffice to raise a lesser

offense, the evidence must establish that the lesser-included offense is a valid, rational

alternative to the charged offense. Bullock, 509 S.W.3d at 925. AIn applying this prong

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of the test, [we] must examine the entire record instead of plucking certain evidence from

the record and examining it in a vacuum.@ Enriquez v. State, 21 S.W.3d 277, 278 (Tex.

Crim. App. 2000); see also Ritcherson v. State, 568 S.W.3d 667, 676B78 (Tex. Crim.

App. 2018).

In addition, we must view the evidence in light of the defendant’s factual theory of

the case. Ramos v. State, 865 S.W.2d 463, 465 (Tex. Crim. App. 1993); see Godsey v.

State, 719 S.W.2d 578, 584 (Tex. Crim. App. 1986) (criticizing the intermediate appellate

court for A[giving] a meaning to [the] appellant=s statement that [the] appellant did not.@).

However, we do not consider the credibility of the evidence or whether it conflicts with

other evidence or is controverted. Bullock, 509 S.W.3d at 925.

The elements of criminally negligent homicide are: (1) the defendant=s conduct

caused an individual=s death; (2) the defendant ought to have been aware that there was a

substantial and unjustifiable risk of death from his conduct; and (3) the defendant=s

failure to perceive the risk constituted a gross deviation from the standard of care that an

ordinary person would have exercised under like circumstances. See Montgomery v.

State, 369 S.W.3d 188, 192B93 (Tex. Crim. App. 2012); TEX. PENAL CODE §§ 6.03(d),

19.05. The key to criminal negligence is the failure to perceive the risk. Montgomery,

369 S.W.3d at 193.

Appellant contends that the following evidence showed that he negligently caused

Vann=s death:

$

Instead of following Starling to Denny=s, appellant pulled his truck up

beside Vann=s patrol car and opened fire;

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$

Appellant hit his head in Corpus Christi the weekend before the shooting;

$

Days later he went to an ER for that injury;

$

He had a history of head injuries;

$

His intellectual functioning falls in the low-average range;

$

He is a chronic alcoholic and kept drinking heavily after he hit his head in

Corpus Christi;

$

He had prescriptions for and took Zoloft and Xanax;

$

Leading up to the offense, he drank alcohol for many hours at Dorrell=s

home and smoked marijuana there, and then drank at Sir Vesa=s;

$

He had not eaten for hours before the shooting, leading to hypoglycemia,

fatigue, and impaired judgment;

$

He was routinely overusing his prescription Xanax and drinking heavily;

and

$

He had his assault weapon with him in the cab of his truck.

Appellant argues that, from this evidence, a rational jury could have found that he Afailed

to perceive a substantial and unjustifiable risk that the result of this shooting would

occur.@

The foregoing litany does not demonstrate that appellant failed to perceive the risk

of Vann’s death when he aimed his loaded rifle at him and pulled the trigger dozens of

times. Furthermore, a theory that appellant failed to perceive the risk of Vann’s death

would not be a rational alternative to capital murder in view of a defensive theory that

posited an inability on appellant’s part to rationally perceive anything.

Point of error three is overruled.

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XIV. GUILT PHASE ARGUMENT

In point of error twenty, appellant argues that the trial court erred at the guilt phase

by overruling his objections that the prosecutor was striking at him over defense

counsel=s shoulders. He asserts that the trial court=s rulings violated his rights under the

Sixth, Eighth, and Fourteenth Amendments to the United States Constitution as well as

Article I, Sections 10, 13, 15, and 19, of the Texas Constitution. We do not consider

appellant=s state constitutional claims because he has inadequately briefed them. See

TEX. R. APP. P. 38.1(i); Wolfe, 509 S.W.3d at 342B43; Lucio, 353 S.W.3d at 877B78;

Murphy, 112 S.W.3d at 596.

XIV.A. Background

Defense counsel spent a significant part of his guilt-phase closing argument

asserting that the defense, in contrast to the State, had tried to present the jury with the

most information. He emphasized his efforts to admit into evidence the complete

statements that testifying witnesses made to the police and argued that the State and the

trial judge had improperly thwarted his efforts at every turn. For example:

Who in this trial has tried to bring you the most information? And

who in this trial has tried to prevent you from getting information?

Because, if you recall . . . I kept trying to get people to go back to their

original statements to the police, their original recordings. I sought to bring

in the entirety of everything. The State repeatedly objected and the judge

repeatedly sustained.

Defense counsel also reasserted that appellant had been in an automatistic state

when he shot Vann and that his cover-up did not begin until several days later when he

realized what he had done. Counsel ended his argument by suggesting that appellant=s

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cover-up was understandable because few people would have had the courage to come

forward upon making such a realization.

The complained-of arguments occurred during the first part of the State=s

argument in rebuttal. Referring to defense counsel=s closing argument, the prosecutor

stated:

Ladies and gentlemen, what you have heard just now is revisionist

history and fiction developed over the last four years by a guilty man who

is trying to get away with murder. What you have just heard is a cover-up

that began the night Sergeant Vann was murdered and ended with those

final words from [defense counsel].

Defense counsel objected that the prosecutor was improperly striking at appellant over

defense counsel=s shoulders. The trial court overruled the objection, and the prosecutor

continued:

And I feel like I need to make a comment based on what [defense

counsel] has said about the lawyering in this case and the rules. There are

rules in court. There are rules of law. And just because [defense counsel]

acted like the rules do not apply to him does not mean that -Defense counsel again objected that the prosecutor was improperly striking at appellant

over counsel=s shoulders. The trial court overruled the objection and granted defense

counsel=s request for a running objection. The prosecutor=s argument resumed:

Let me give you an example. There are absolutely things that are

not admissible in the evidence. Witness prior statements, the whole thing,

when they are up there testifying, police reports, other things that are never

admissible in court.

Defense counsel objected that the prosecutor was misstating the law and asserted that

A[t]hey are prior inconsistent statements and when they are they become admissible in

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court.@ The prosecutor responded, ANot the whole document,@ and the trial court

overruled the objection.

The prosecutor concluded the relevant portion of her argument:

And what a fine example that is. Right? So here=s how the defense

is crafted. I=m going to ask for things that nobody will ever get because it=s

against the law and then when the State objects, I=m going to say they look

like they=re hiding it. And when the judge properly says that can=t come

into evidence, he says the judge is trying to keep things from you. What a

brilliant form of improper arguing to you to make you think that evidence is

being kept from you when nothing more than the rules are being followed

by everyone else in this room.

XIV.B. Relevant Law

There are four proper areas of jury argument: (1) a summation of the evidence;

(2) a reasonable deduction drawn from that evidence; (3) an answer to opposing counsel=s

argument; and (4) a plea for law enforcement. Milton v. State, 572 S.W.3d 234, 239

(Tex. Crim. App. 2019). But “argument that strikes at a defendant over the shoulders of

defense counsel is improper.@ Davis v. State, 329 S.W.3d 798, 821 (Tex. Crim. App.

2010) (citing Wilson v. State, 7 S.W.3d 136, 147 (Tex. Crim. App. 1999), and Dinkins v.

State, 894 S.W.2d 330, 357 (Tex. Crim. App. 1995)).

This Court maintains a special concern for final arguments that result in

uninvited and unsubstantiated accusation of improper conduct directed at a

defendant=s attorney. Trial judges should assume responsibility for

preventing this type of argument. In its most egregious form, this kind of

argument may involve accusations of manufactured evidence, or an attempt

to contrast the ethical obligations of prosecutors and defense attorneys.

Mosley, 983 S.W.2d at 258 (internal citations and quotation marks omitted).

We review a trial court=s ruling on an objection to jury argument for an abuse of

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discretion. Milton, 572 S.W.3d at 241. A trial court abuses its discretion when its ruling

falls outside the zone of reasonable disagreement. Gonzalez, 544 S.W.3d at 370.

Regarding milder comments—such as those that assert that defense counsel=s

arguments are an attempt to divert the jury=s attention or obscure the issues—we have

stated that Ait is impossible to articulate a precise rule.@ See Mosley, 983 S.W.2d at

258B59 (referring to our diverse holdings in Gorman v. State, 480 S.W.2d 188, 190 (Tex.

Crim. App. 1972), and Dinkins, 894 S.W.2d at 357).

In Gorman, for example, the prosecutor stated, ADon=t let [defense counsel]

smoke-screen you[;] he has smoke-screened you enough.@ See 480 S.W. 2d at 190. We

concluded that this argument was not improper because it could be interpreted as

attacking defense counsel=s arguments rather than counsel himself. See id. at 190B91

(stating that the Aremark was not a personal attack@ on defense counsel, but an Aanswer to

counsel=s argument which attempted to minimize the scope and extent of appellant=s prior

criminal record@). But in Dinkins, we appeared to retreat from this position. See Mosley,

983 S.W.2d at 259 (stating that Dinkins brought Gorman=s holding Ainto question@).

In Dinkins, defense counsel made certain arguments about the voluntariness of the

defendant=s confession. Dinkins, 894 S.W.2d at 357. At rebuttal, the prosecutor argued

that the evidence showed that the confession had been voluntary and that defense counsel

Awant[ed] to mislead you a little bit.@ Id. We concluded that the prosecutor=s comment

was not permissible as rebuttal to defense counsel=s prior argument about the confession=s

voluntariness. See id. We explained, AAlthough the prosecutor=s statements may have

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been intended as rebuttal, they also cast aspersion on defense counsel=s veracity with the

jury.@ Id.

In Mosley, we acknowledged the impossibility of formulating a precise rule. See

983 S.W.2d at 259. However, we emphasized that Aa prosecutor runs a risk of improperly

striking at the defendant over the shoulder of counsel when the argument is made in

terms of defense counsel personally and when the argument explicitly impugns defense

counsel=s character.@ See id. (assuming impropriety when the prosecutor referred to

defense counsel personally and argued that they had attempted to divert the jury from the

truth).

XIV.C. Analysis

The prosecutor=s initial remarks—describing appellant as a guilty man who had

spent four years fabricating a mental-state defense—was within the scope of proper jury

argument. It was a reasonable deduction from the evidence, and it was not directed at

defense counsel, but at appellant himself. See Davis, 329 S.W.3d at 822B23 (concluding

that the prosecutor did not attack counsel over the defendant=s shoulders when the

prosecutor argued that the defendant was a Acon man@).

The next set of remarks, however—stating that defense counsel behaved Aas if

legal rules did not apply to him@ and that counsel was engaging in Aa brilliant form of

improper arguing”—are troubling.

On one hand, defense counsel attacked the trial judge=s and prosecutors= motives in

excluding or seeking to exclude evidence, implying that they had behaved unlawfully and

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unethically. Arguably, defense counsel invited the complained-of remarks. See Mosley,

985 S.W.2d at 258 (stating that our Aspecial concern@ applies to final argument that

results in Auninvited@ remarks directed at defense counsel). In that regard, this case is

distinguishable from Dinkins and Mosley in which such inflammatory defense arguments

did not precede the prosecutor=s challenged remarks. See Mosley, 983 S.W.2d at 259;

Dinkins, 894 S.W.2d at 357. The prosecutor was not required to allow this attack to go

unanswered. To find otherwise would allow defense counsel to use our jurisprudence in

this area as both Aa shield and a sword.@ Cf. Bailey v. State, 507 S.W.3d 740, 746 (Tex.

Crim. App. 2016) (noting that a legal privilege may not be used simultaneously as a

sword to gain a litigation advantage and then as a shield to protect the defendant from any

adverse consequences).

On the other hand, prosecutors must exercise great care in responding to such

arguments. As in Dinkins and Mosley, the prosecutor here seems to have intended her

statements to rebut defense counsel=s assertions. But she also expressly and personally

criticized defense counsel. See Mosley, 983 S.W.2d at 259; Dinkins, 894 S.W.2d at 357.

We have cautioned prosecutors against such arguments, noting the risk that such remarks

will be found to have improperly struck at the defendant over defense counsel=s

shoulders. See Mosley, 983 S.W.2d at 259; Dinkins, 894 S.W.2d at 357.

On balance we hold that the trial court did not err in overruling the objection.

Defense counsel invited the arguments about his behavior by suggesting that he had been

thwarted in his efforts to bring forth all the evidence, and the prosecutor’s response was

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explicitly tied to that suggestion. Under these circumstances, the trial court did not abuse

its discretion in overruling the objection to the prosecutor’s arguments. Even if the ruling

had been an abuse of discretion, however, the arguments were harmless.

In assessing harm in this context, we have considered three factors: (1) Aseverity

of the misconduct (the magnitude of the prejudicial effect of the prosecutor=s remarks)@;

(2) Ameasures adopted to cure the misconduct (the efficacy of any cautionary instruction

by the judge)@; and (3) Athe certainty of conviction absent the misconduct (the strength of

the evidence supporting the conviction).@ See Mosley, 983 S.W.2d at 259.

The first factor does not favor appellant. While we do not condone the

prosecutor=s remarks, they were only Amildly inappropriate.@ See Mosley, 983 S.W.2d at

260. As discussed above, defense counsel invited the remarks through his own argument.

Further, the prosecutor did not accuse defense counsel of manufacturing evidence or

directly accuse counsel of lying. See id. at 258. Instead, her comments suggested that

defense counsel was trying to distort the jury=s view of the evidence before it. See id. at

260. The second factor weighs in appellant=s favor. No curative action was taken

because the trial court overruled defense counsel=s objection to the remarks. The third

factor weighs in the State=s favor. The evidence of appellant=s guilt was overwhelming.

It came from a variety of sources, was both direct and circumstantial, and included

appellant’s admission to Starling that he had killed a cop and a defensive theory that

admitted the deed but denied a culpable mental state and voluntariness. Given the

relatively mild nature of the prosecutor=s remarks and the strength of the State=s guilt-

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phase case, any error was harmless. See TEX. R. APP. P. 44.2(b).

Point of error twenty is overruled.

XV. PUNISHMENT PHASE JURY CHARGE

In point of error one, appellant claims that the trial court should have instructed

the jury that appellant was ineligible for parole if sentenced to life on a capital murder

conviction. In point of error twenty-four, he argues that the trial court should have

instructed the jury that it could consider voluntary intoxication as a mitigating

circumstance in answering the special issues.

XV.A. Parole Ineligibility

In point of error one, appellant claims that the trial court erred in refusing to

instruct the jury that appellant would be ineligible for release if he was convicted of

capital murder and if the jury answered the future dangerousness issue in the negative.

He bases his claim on the structure of the jury charge and on excerpts from the

prosecutor’s closing argument in the punishment phase, and he relies on Simmons v.

South Carolina, 512 U.S. 154 (1994) (plurality op.), Shafer v. South Carolina, 532 U.S.

36 (2001), Kelly v. South Carolina, 534 U.S. 246 (2002), and Lynch v. Arizona, 136 S.Ct.

1818 (2016). He claims that the prosecution and the trial court created the false

impression that his conviction for capital murder would not foreclose the possibility of

his release on parole and that this false impression violated his rights under the Eighth

and Fourteenth Amendments to the United States Constitution as well as Article I,

Sections 13 and 19, of the Texas Constitution.

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We do not consider appellant=s state constitutional claims because he has

inadequately briefed them. See TEX. R. APP. P. 38.1(i); Wolfe, 509 S.W.3d at 342B43;

Lucio, 353 S.W.3d at 877B78; Murphy, 112 S.W.3d at 596. As for his federal

constitutional claims, they are without merit because Appellant’s jury was repeatedly and

correctly instructed that the only two sentencing options for a capital murder conviction

were life without parole and death. Unlike the juries in Simmons, Shafer, Kelly, and

Lynch, appellant’s jury was not misled about the possibility of parole.

XV.A.1. Simmons, Shafer, Kelly, and Lynch vs. This Case

In Simmons, the trial court refused to instruct the jury that “life” meant life without

parole, though it did mean that. Simmons, 512 U.S. at 160. The prosecution argued that

future dangerousness was a consideration for the jury in choosing between life and death;

Simmons countered that he was unlikely to be dangerous in prison because he tended to

victimize elderly women. Simmons, 512 U.S. at 157. During its deliberations, the jury

asked whether a life sentenced carried the possibility of parole, and the trial court said not

to consider parole or parole eligibility. Id. at 160. It further instructed that “life

sentence” and “death penalty” were to be understood according to their plain and

ordinary meanings. Id.

A plurality of the Supreme Court decided that the State violated due process by

getting a death sentence based in part on the defendant’s future dangerousness “while at

the same time concealing from the sentencing jury the true meaning of its noncapital

sentencing alternative, namely, that life imprisonment meant life without parole.” Id. at

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162. The plurality deemed “the actual duration of the defendant’s prison sentence [to be]

indisputably relevant” to the assessment of his future dangerousness. Id. at 163.

“Because truthful information of parole ineligibility allows the defendant to ‘deny or

explain’ the showing of future dangerousness, due process plainly requires that he be

allowed to bring it to the jury’s attention by way of argument by defense counsel or an

instruction from the court.” Id. at 169.

The trial court’s instructions did not meet that requirement because invoking the

“plain and ordinary meaning” of “life” would not have dispelled “the misunderstanding

reasonable jurors may have about the way in which any particular State defines ‘life

imprisonment.’” Id. at 170. The instruction not to consider parole “actually suggested

that parole was available but that the jury, for some unstated reason, should be blind to

this fact.” Id. And even if the latter instruction had been effective, Simmons’ “due

process rights still were not honored. Because [his] future dangerousness was at issue, he

was entitled to inform the jury of his parole ineligibility.” Id. at 171.

In Shafer, the defendant unsuccessfully sought an instruction or the opportunity to

argue that a life sentence meant life without parole. Shafer, 532 U.S. at 41-42. The trial

judge told the jury that if it found an aggravating circumstance, then it had to choose a

sentence of life or death and that “life imprisonment means until the death of the

defendant.” Id. at 43. In closing, the defense attorney argued that a life sentence meant

that the defendant would “die in prison” after “spending his natural life there.” Id. at 52.

But the jury was confused. Id. at 53. During its deliberations it asked if life meant “any

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remote chance” of parole, id. at 44, and the trial court replied that “life imprisonment

means until the death of the offender” and that parole was “not for your consideration.”

Id. at 45.

A life sentence could not be reduced in any way under South Carolina law, but

“this reality was not conveyed to Shafer’s jury by the court’s instructions or by the

arguments defense counsel was allowed to make.” Id. at 54. The trial court’s final

instruction that parole was not for the jury’s consideration might have further misled the

jury that parole was a possibility. Id. at 45. If future dangerousness was submitted for

the jury’s consideration, then Shafer had the right to inform the jury that he was ineligible

for parole if sentenced to life. Id. at 39, 54.

In Kelly, the trial court told the jury to consider aggravating circumstances in

choosing between “life imprisonment” and a “death sentence” and that these two terms

were to be given their plain and ordinary meanings. Kelly, 534 U.S. at 250. But the trial

court did not specify that future dangerousness was not at issue or that a life sentence

meant no parole. Id. The prosecutor’s argument—that he hoped the jurors would never

again have to be near a person like the defendant—implied that the defendant might get

out some day. Id. at 255. The defense attorney’s opening statement telling the jury that

the defendant would be in prison for the rest of his life and would “never see the light of

day again” plus the trial court’s instruction that life and death should be given their

ordinary meanings were inadequate to overcome the possibility that the jury was misled.

Id. at 257.

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In Lynch, the trial court refused to let the defendant tell the jury that he would be

ineligible for parole on a life sentence though the prosecution argued that the jury should

consider future dangerousness in assessing punishment. Lynch, 136 S.Ct. at 1819. The

Supreme Court held that Lynch had the right to inform the jury that he was ineligible for

parole, and the possibility of executive clemency or future legislation did not extinguish

that right. Id. at 1819B20.

The present case is distinct from the foregoing cases because appellant’s jury was

told in a variety of ways throughout the trial that there were only two possible

punishments in the event of a capital murder conviction: life without parole or death.

Rather than prevent appellant from telling the jury about life without parole, the trial

court encouraged him to do so, and the jury displayed no confusion about the lack of a

parole possibility.

At the beginning of voir dire the trial court told the potential jurors twice that there

were only two possible punishments for capital murder: life without parole or the death

penalty. First: “As to punishment, a person who is found guilty of capital murder in

which the State seeks the death penalty shall be punished by imprisonment in the Texas

Department of Criminal Justice for life without parole or death. The State is seeking the

death penalty in this case.” Second: “At the conclusion of the punishment phase, the

jury will be asked to answer specific questions. And based on the jury’s answers to these

questions, the Court will sentence the defendant to life without parole or death.”

The questionnaire submitted to the potential jurors instructed them that a capital

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murder conviction was punishable by “life imprisonment in the Texas Department of

Criminal Justice for life without parole or by death.” It emphasized those exclusive

options by asking questions such as “Are you in favor of life without parole?” and “Do

you think that spending a lifetime in prison without the possibility of parole is equivalent

to the death penalty?”

In approving the questionnaire, the trial judge explicitly told the attorneys that it

was only a tool and that she expected them to “go over reasonable doubt, life without

parole, voluntary intoxication, all of those issues if you see fit to do so” during the

individual interviews. The attorneys did tell eleven of the fourteen jurors and alternates

that a conviction for capital murder was punishable only in two possible ways, life

without parole or death. One juror was told that if the answer to the future danger issue

was unanimously yes, then appellant was “death eligible,” and if the mitigation issue was

answered “yes” by at least ten jurors, then a sentence of life without parole would result.

In the punishment phase, the defense offered the testimony of Frank Aubuchon, a

TDCJ classification expert, who testified on direct that life without parole “is essentially

another form of a death sentence because they are not getting out of prison” and that life

without parole means “exactly that. . . It means the offender will die in custody.” He

said that life without parole means the prisoner “will serve that sentence until whenever it

is they pass away and they leave the penitentiary in their coffin.” He explained that

Texas adopted life without parole in 2005 and that before then, a capital life sentence

carried various parole possibilities. He also detailed the administrative guidelines and

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security levels for prisoners serving life without parole.

Aubuchon’s testimony on cross examination reemphasized the meaning of life

without parole: it means the prisoner would never “be able to get out,” and the State tried

to make the point that such offenders are disincentivized from behaving well in prison,

making them dangerous.

In his closing argument, defense counsel emphasized that the only options facing

appellant were life without parole and death:

“Mark should not be executed and . . . instead he should get life

without parole in prison.”

“And the fact of the matter is, if you lock him up in prison for life

without parole, the only way he comes out of prison is in a pine box.”

“And I believe that he should be punished but that he should live.

And if he lives, the only way that he comes out of prison is in a pine box.”

The jury’s questions during deliberations did not indicate any misunderstanding

about the meaning of life without parole. It asked with respect to the mitigation issue

whether it was deciding between “life imprisonment or the death penalty? Or only

deciding if any mitigating circumstances?” and whether “background” meant “personal

and/or criminal background?” The trial court’s supplemental charge responding to these

questions reiterated the original instructions: a unanimous “yes” to future dangerousness

and a “yes” vote to mitigation by ten or more jurors would yield a sentence of life

without parole. The trial court never instructed appellant’s jury to disregard parole.

This record defeats appellant’s claim that his jury might have been confused about

the exclusive punishment options for capital murder.

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XV.A.2. Appellant’s Argument

Appellant contends, however, that the structure of the jury charge could have

misled the jury about the possibility of parole because it did not tell the jury that a

negative answer to future dangerousness would yield a life-without-parole sentence. It

only told the jury that an affirmative answer to mitigation could do so. Thus, according

to appellant, the jury might have believed that a negative answer to future dangerousness

could result in something less than life without parole. He contends that the State

enhanced the likelihood of such a misunderstanding by two arguments that he says were

misleading. We reject appellant’s contention because there is no possibility that the jury

was misled by the jury charge or by the State’s closing argument or by a combination of

them.

Appellant did not object to the positioning of the life-without-parole information

within the charge, but we must consider all alleged error in the court=s written jury charge

even if the issue was not preserved in the trial court. Kirsch v. State, 357 S.W.3d 645,

649 (Tex. Crim. App. 2012).

The punishment phase charge told the jury that it had to answer two issues and

that its answers would determine the punishment to be assessed. The court then set forth

the first issue, future dangerousness, followed by the two possible answers (AYes@ or

ANo@). The charge continued:

You are instructed that if you return a verdict of ANo@ to Issue

Number 1, then you shall cease your deliberations.

You are further instructed that if you return a verdict of AYes@ to

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Issue Number 1, only then are you to answer Issue Number 2.

The jury may not answer Issue Number 2 ANo@ unless there is

unanimous agreement of the individual jurors upon that answer.

The jury may not answer Issue Number 2 AYes@ unless ten (10) or

more jurors agree on that answer.

In determining the answer to Issue Number 2, you are instructed that

you need not agree on what particular evidence supports an affirmative

finding on the issue and shall consider mitigating evidence to be evidence

that a juror might regard as reducing the defendant=s moral

blame-worthiness.

The charge next presented the mitigation special issue which was answerable

either “Yes” or “No” and then instructed as follows:

[I]f you answer that a circumstance or circumstances warrant that a

sentence of life imprisonment without parole rather than a death sentence

be imposed, the Court will sentence the defendant to imprisonment in the

Institutional Division of [TDCJ] for life without parole.

If the defendant is sentenced to confinement for life without parole,

he is ineligible for release from the department on parole.

The positioning and content of the trial court=s life-imprisonment-without-parole

instruction were consistent with Article 37.071. Article 37.071, Section 2(e)(1), requires

the trial court to Ainstruct the jury that if the jury returns an affirmative finding to@ the

future dangerousness special issue, the jury Ashall answer the [mitigation special issue].@

TEX. CODE CRIM. PROC. art. 37.071, ' 2(e)(1). The statute then states that the court

shall:

(A) instruct the jury that if the jury answers that a circumstance or

circumstances warrant that a sentence of life imprisonment without parole

rather than a death sentence be imposed, the court will sentence the

defendant to imprisonment in [TDCJ] for life without parole; and

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(B) charge the jury that a defendant sentenced to confinement for life

without parole under this article is ineligible for release from the

department on parole.

TEX. CODE CRIM. PROC. art. 37.071 ' 2(e)(2). By conforming the charge to Article

37.071, the trial court fulfilled its duty to explain the law in its written charge. See Kelly,

534 U.S. at 256. Appellant’s argument that the charge misled the jury about the

possibility of parole is merely speculative because the jury was repeatedly told in various

ways throughout the trial that capital murder carries only two possible punishments, life

without parole and death.

As for the State’s closing argument, appellant points to one instance where the

prosecutor told the jury that its answers to the two special issues would dictate the

sentence, “a life sentence or a death sentence.” Appellant’s objection “that it’s misstated

if it’s not life without parole” was overruled. Appellant maintains that the ruling created

the impression that the defense was wrong that “life” meant “life without parole.” This,

too, is merely speculative in light of the extensive information given to the jury

throughout the trial about the exclusivity of the capital murder punishment options.

In the second instance of argument that appellant points to, the prosecutor stated

without objection that “society” includes prison society “if the defendant finds himself in

prison” and “[w]hatever society the defendant finds himself in, for whatever reason he

may find himself there[.]” According to appellant, those comments could have misled

the jury about the possibility of parole, but in fact the comments highlighted the fact that

parole was not possible.

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The upshot of the prosecutor’s argument was that the jury should consider prison

society in deciding whether he posed a future danger, and appellant could only pose such

a danger to non-prison society if he escaped:

And society, we talked about the fact that when we think about well,

if you lock somebody away then society is safe, but what we did was we

actually moved our problem from one location to another.

And obviously if the defendant finds himself in prison, that society

needs to be considered. There are other inmates in that society. There are

guards, there are medical personnel, there are teachers, there are ministers,

there’s visitors who come to see their families. All of those people need to

be considered. And then there is always the potential for escape, for

movement from one society to another. And what would the defendant do

if he found himself in that society. What is his behavior going to be.

Whatever society the defendant finds himself in, for whatever reason he

may find himself there is viewed as a society in that question.

Instead of tending to mislead about the meaning of life without parole, this

argument highlighted its true significance.

On this record there is no possibility that appellant’s jury was misled about a

possibility of parole.

We overrule point of error one.

XV.B. Voluntary Intoxication

The trial court refused to include the following instruction in the punishment phase

jury charge:

In arriving at your answer to special issues numbers 1 and 2, you

may consider [appellant=s] voluntary intoxication as a mitigating

circumstance to warrant that a sentence of life imprisonment rather than a

death sentence be imposed.

Appellant contends that the trial court=s ruling violated his rights under the Eighth and

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Fourteenth Amendments to the United States Constitution and Sections 13 and 19 of the

Texas Constitution because it precluded the jury from considering evidence of his

voluntary intoxication as a mitigating circumstance. We do not reach the state

constitutional aspects of point of error twenty-four because appellant has inadequately

briefed them. See TEX. R. APP. P. 38.1(I); Wolfe, 509 S.W.3d at 342B43; Lucio, 353

S.W.3d at 877B78; Murphy, 112 S.W.3d at 596. And his federal constitutional arguments

have no merit.

The trial court must Agive the jury a written charge >setting forth the law applicable

to the case; not expressing any opinion as to the weight of the evidence, not summing up

the testimony, discussing the facts or using any argument in [its] charge calculated to

arouse the sympathy or excite the passions of the jury.=@ Kirsch, 357 S.W.3d at 651

(quoting Article 36.14). Generally, neither party is entitled to a special jury instruction

that: (1) is not statutorily-grounded; (2) is covered by the general charge to the jury; or

(3) focuses the jury=s attention on a specific type of evidence that may support an

affirmative or negative answer to one or more of the punishment phase special issues. Cf.

Walters v. State, 247 S.W.3d 204, 212 (Tex. Crim. App. 2007). AIn such a case, the nonstatutory instruction would constitute a prohibited comment on the weight of the

evidence.@ Id.

The punishment charge followed the statute and instructed the jury to consider all

the evidence from both stages of trial in answering the special issues. See id.; see also

Riddle v. State, 888 S.W.2d 1, 8 (Tex. Crim. App. 1994). And appellant’s proposed

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instruction was an improper comment on the weight of the evidence because it focused

the jury=s attention on a specific type of evidence—appellant’s voluntary intoxication on

the night of the offense—that might have supported an affirmative or negative issue to

one or more of the punishment phase special issues. See Walters, 247 S.W.3d at 212.

The trial court did not err in refusing it.

Point of error twenty-four is overruled.

XVI. PUNISHMENT PHASE ARGUMENT

In points of error twenty-one and twenty-three, appellant claims that the trial court

erred in overruling his objections to some of the State’s arguments in the punishment

phase of trial.

XVI.A. Comment on Failure to Testify

In point of error twenty-one, appellant claims that the trial court erred when it

overruled his objection that the State commented on his failure to testify by arguing that

appellant had failed to accept responsibility for killing Vann. He contends that the trial

court=s ruling violated the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United

States Constitution and Article I, Sections 10, 13, 15, and 19 of the Texas Constitution.

We will not review appellant’s State constitutional claims because he fails to

distinguish them from his federal claims, and he did not preserve the Article 1, Sections

15 and 19 claims in the trial court. See TEX. R. APP. P. 33.1; Lagrone v. State, 942

S.W.2d 602, 612 (Tex. Crim. App. 1997) (declining to address state constitutional claims

where the appellant did not distinguish them from or argue that the Texas Constitution

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provides greater protections than the federal constitution). His Sixth Amendment claim

is inadequately briefed because he relies exclusively on Fifth Amendment cases. See

TEX. R. APP. P. 38.1(i). Accordingly, we consider only whether the State=s argument

violated appellant=s Fifth Amendment privilege against self-incrimination.

In determining whether a prosecutor=s comment violated the Fifth Amendment, a

court should view the prosecutor=s argument from the jury=s standpoint and resolve any

ambiguities in favor of the argument being permissible. Randolph v. State, 353 S.W.3d

887, 891 (Tex. Crim. App. 2011). Accordingly, Athe implication that the State referred to

the defendant=s failure to testify must be a clear and necessary one. If the language might

reasonably be construed as merely an implied or indirect allusion, there is no violation.@

Id. The test Ais whether the language used was manifestly intended or was of such a

character that the jury wo

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