               IN THE COURT OF CRIMINAL APPEALS
                           OF TEXAS
                                                   AP-74,393


                                    IRVING ALVIN DAVIS, Appellant

                                                      v.

                                             THE STATE OF TEXAS

                  ON DIRECT APPEAL FROM CAUSE NO. 20010D06419
                          IN THE 168 TH DISTRICT COURT
                               EL PASO COUNTY



      J OHNSON, J., delivered the opinion of the Court in which M EYERS, P RICE,
W OMACK, H ERVEY, H OLCOMB, and C OCHRAN, JJ., joined. K EASLER, J., concurred in
the result of point of error three and otherwise joined the opinion of the Court.
K ELLER, P.J., concurred in the result.

                                                   OPINION

       In June 2002, appellant was convicted of murdering Melissa Medina in the course of

committing or attempting to commit aggravated sexual assault.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


       1
           T EX . P EN AL C O D E § 19.03(a)(2).
                                                                                                                   2

trial judge sentenced appellant to death. Art. 37.071, § 2(g).2 In June 2007, we affirmed the trial

court’s judgment as it related to appellant’s conviction, reversed it as it related to his punishment,

and remanded the case to the trial court for a new punishment hearing. Davis v. State, No. AP-

74,393 (Tex. Crim. App. June 13, 2007)(not designated for publication). In February 2008, the trial

court held a new punishment hearing before a new jury. At the conclusion of that hearing, the trial

court, acting in accordance with the jury’s answers to the two special issues, again assessed

appellant’s punishment at death. Appellant now raises nine issues on direct appeal from the second

punishment hearing. After reviewing appellant’s points of error, we find them to be without merit

and affirm the trial court’s judgment.

                                       EVIDENCE OF SATANISM

       In point of error one, appellant argues that “the trial court erred when it allowed the state to

present evidence that appellant had become a Satanist while imprisoned on death row.” He

specifically complains that the trial court erred by admitting state’s Exhibits 247, 248, and 285

through 301, permitting the testimony of state’s expert witness Donald Haley, and requiring

appellant to display to the jury the tattoo of a pentagram on his chest. Appellant raises both

constitutional and statutory claims, arguing that the trial court violated the First Amendment to the

United States Constitution and Rules 401 and 403 of the Texas Rules of Evidence. Because

appellant bases his single point of error on more than one legal theory, his entire point of error is

multifarious. TEX . R. APP . P. 38.1. We will, however, review his arguments in the interest of justice.

       We review a trial court’s decision to admit evidence under an abuse of discretion standard.

Walters v. State, 247 S.W.3d 204, 217 (Tex. Crim. App. 2007). The trial court abuses its discretion


       2
           Unless otherwise indicated, all references to Articles refer to the Texas Code of Criminal Procedure.
                                                                                                      3

only when the decision lies “outside the zone of reasonable disagreement.” Id.

       Prior to trial, anticipating that the state would “attempt to offer into evidence expert

testimony indicating Defendant’s religious beliefs,” appellant filed a motion in limine asking the trial

court to bar testimony on that subject. At the hearing on the motion in limine, defense counsel

argued that the state should not be allowed to get into “the issue of satanism” because it was not

relevant, it would violate his rights to freedom of religion and freedom of association, and its

probative value was outweighed by any prejudicial effect. Defense counsel further stated,

       [I]t’s my understanding that the type of satanic beliefs that my client does profess are,
       in fact, nonviolent and do not involve any violence at all. And that’s just their
       different, I guess, churches or ways to practice this satanism. And so unless they can
       tie my client in to, you know, I guess these bad acts that they’re going to attempt to
       produce, I don’t think there’s any relevance there. . . .

       I believe, based on my argument as to the various different, I guess, sections of
       satanism that you might have, I think that’s exactly the problem they’re going to run
       into in this case, that they’re not going to–you know, they’re going to basically
       try–they’re going to be trying to say that the mere fact that he’s a satanist is a bad act
       in its own right, and that’s not appropriate pursuant to Dawson v. Delaware.[3]

       The prosecutor responded that the state intended to introduce appellant’s prison records,

writings, drawings, and “a pentagram that is etched into his body that was either carved or burned”

to show that, in 2006, appellant had declared that he had been a Satanist since 2005. The prosecutor

added, “We have evidence that will come in through our expert witness that he will testify about

satanists and illegal activities and violent activities that have been committed on the part of

satanists.” The prosecutor explained that “there is no need for the State to prove that the Defendant

himself engaged in all of those illegal violent acts, only that the group is known to do that, and that

the Defendant is a member of that group.” The prosecutor further stated that appellant’s “belief in


       3
           503 U.S. 159 (1992).
                                                                                                            4

satanism is being offered as evidence of his character, to show his belief systems” and how they

relate to future-dangerousness; the issues of character and future dangerousness “are at the heart of

the sentencing phase in a capital murder case.” Following the parties’ arguments, the trial court

granted the motion in limine “until such time as [the state’s] expert can establish outside the hearing

of the Jury that, in fact, there is a propensity in this organization or this faith or this religion . . . for

illegal activities or an [sic] engaging in violent activities.”

        The state’s expert witness, Donald Vaughn Haley, later testified on voir dire examination

outside the presence of the jury that Satanism advocates violence, as evidenced by the discussion of

human sacrifice in The Satanic Bible and the “rituals of destruction” contained in The Satanic

Rituals. Haley also gave several examples of people who committed murder and mutilation “in the

name of Satan.” Over defense counsel’s objections on relevance and the First Amendment, the trial

court ruled that Haley would be permitted “to testify in the area of the satanic religion” and that “all

of that evidence is relevant to the issue of future dangerousness and it is outside the protection of the

First Amendment.” Appellant also filed written objections to the court’s ruling, arguing that the

evidence was “irrelevant” and that its admission violated Rule 403 and his rights of freedom of

religion and freedom of association under the First Amendment of the United States Constitution.

        At trial, the state offered into evidence various items obtained from appellant’s prison cell,

including five books (state’s Exhibits 285-289), three writing tablets (state’s Exhibits 290, 291, and

293), seven drawings (state’s Exhibits 294-299 and 301), and a handwritten note (state’s Exhibit

300). The books were entitled Necronomicon, The Secret Life of a Satanist, Satan Speaks!, The

Satanic Rituals, and The Satanic Bible. Appellant’s writing tablets and drawings contained Satanic

imagery and references, including lists of “Satanic statements,” “Satanic rules,” and “Satanic sins.”
                                                                                                     5

One of appellant’s drawings depicts a naked woman who is bound and gagged, and another drawing

depicts a woman with a slashed throat. In the handwritten note, which appellant described as “a

suplement [sic] to my application to the Church of Satan,” appellant expressed his desire to pledge

allegiance to the Church of Satan. The state also offered into evidence appellant’s grievance forms

(state’s Exhibit 247) and other records (state’s Exhibit 248) from the Texas Department of Criminal

Justice (TDCJ). In a grievance form received by TDCJ on June 19, 2007, appellant stated that he

had been a Satanist since 2005, that he was also a “blood sorcerer” who had taken up vampirism, and

that he was without the materials that he needed to practice his religion. Other records showed that,

in 2006, appellant asked TDCJ to change his religion on his travel card from Buddhist to Satanist

and that in 2007 he requested that “Vampirism/Thaumaturgy” be entered in addition to Satanism.

The state also demonstrated that appellant had an inverted pentagram on his chest by having

appellant lift his shirt and stand before the jury.

        When Dr. Haley testified before the jury, the state asked him about “the philosophy of

satanists regarding human sacrifice.” Haley responded with passages from The Satanic Bible.

        It says, “The only time a satanist would perform a human sacrifice would be if it were
        to serve a twofold purpose; that being to release the magician’s wrath in the throwing
        of a curse, and more important, to dispose of a totally obnoxious and deserving
        individual.” . . . It states, “The question arises, ‘Who, then, would be considered a
        fit and proper human sacrifice, and how is one qualified to pass judgment on such a
        person?’ The answer is brutally simple. Anyone who has unjustly wronged you or
        who has gone out of his way to hurt you–to deliberately cause trouble and hardship
        for you or those dear to you.” . . . “When a person, by his reprehensible behavior,
        practically cries out to be destroyed, it is truly your moral obligation to indulge, then,
        their wish.”

        Haley explained that the “Nine Satanic Statements” represent “the canon or standard by

which a satanist lives his life.” When asked about the “Eleven Satanic Rules of the Earth,” Haley
                                                                                                                  6

replied,

        Based on my study, the ones that–it would have to be that if an individual annoys
        you, to treat him cruelly. And the other thing, if an individual bothers you, it says in
        there, to ask him to stop, and if they don’t stop, it says–it used the word destroy them.
        It says destroy.

        Haley testified that to destroy a person means to cause their death. Defense expert John

Gordon Melton disagreed with Haley’s definition. Melton testified that, according to Anton LaVey,

the author of The Satanic Bible, to destroy a person means to “symbolically curse them.” Melton,

however, acknowledged on cross-examination that there are some Satanists who believe that Satan

is a negative personal antideity, and that that particular type of Satanism has “very negative social

and personal effects,” including people being killed in the name of Satanism.

        We first address appellant’s constitutional claim. The First Amendment guarantees the

freedoms of religion and association. See Casarez v. State, 913 S.W.2d 468, 476-78 (Tex. Crim.

App. 1994); Mason v. State, 905 S.W.2d 570, 576 (Tex. Crim. App. 1995). It protects an

individual’s right to join groups and to associate with others holding similar beliefs. Mason, 905

S.W.2d at 576 (citing Dawson v. Delaware, 503 U.S. 159, 161 (1992)).4 However, the Constitution

does not erect a per se barrier to the admission of evidence concerning one’s beliefs and associations

at sentencing merely because those beliefs and associations are protected by the First Amendment.

Id. Such evidence may be admissible if it is shown to be relevant to the issues involved in the case.

Id. at 576-77. Future dangerousness is an issue that is relevant to the sentencing stage of a capital-

murder trial. Id. at 577.

        4
           Appellant asserts that this is not a gang case and that his primary concern is not one of freedom of
association but that of freedom of religion. He contends that Mason is inapposite because it is a gang case.
However, Mason cites and relies on Dawson v. Delaware, which is the seminal case with regard to First Amendment
freedoms of religion and association. 905 S.W.2d at 576. Appellant fails to persuade us that the reasoning of these
cases should not apply to religious affiliations like the one at issue here.
                                                                                                   7
       In order to prove the relevance of a defendant’s membership in an organization or group, the

state must show: (1) proof of the group’s violent and illegal activities, and (2) the defendant’s

membership in the organization. Mason, 905 S.W.2d at 577 (citing Dawson, 503 U.S. at 163-67).

The state introduced TDCJ records showing that appellant had identified himself as a Satanist since

2005. Haley testified that some members of the Satanic religion advocate violence, that Satanic

religious publications like the ones found in appellant’s cell discussed “rituals of destruction” for

performing “human sacrifice” on “undesirable [and] obnoxious individual[s],” and that various

people had committed murder and mutilation “in the name of Satan.” Although Melton disagreed

with Haley’s definition of the term “destroy” and his description of Satanic philosophy, Melton

acknowledged that in some instances people had been killed in the name of Satanism. It was within

the zone of reasonable disagreement for the trial court to decide that the evidence of Satanism was

relevant to the issue of future dangerousness and outside the protection of the First Amendment.

       We next turn to appellant’s statutory claims. Relevant evidence is that which has any

tendency to make the existence of any fact of consequence more or less probable than it would be

without the evidence. TEX . R. EVID . 401. Appellant’s Satanic tattoo, books, writings, and drawings

are indicative of his character, and we have held that such evidence is relevant to the question of

future dangerousness at punishment. Conner v. State, 67 S.W.3d 192, 201 (Tex. Crim. App. 2001);

Corwin v. State, 870 S.W.2d 23, 25 (Tex. Crim. App. 1993); see also Robles v. State, No. AP-

74,726, 2006 WL 1096971 (Tex. Crim. App. April 26, 2006)(not designated for publication).

       Rule 403 allows for the exclusion of otherwise relevant evidence when its probative value

is substantially outweighed by the danger of unfair prejudice. TEX . R. EVID . 403. Rule 403 favors

the admission of relevant evidence and carries a presumption that relevant evidence will be more
                                                                                                     8
probative than prejudicial. Williams v. State, 958 S.W.2d 186, 196 (Tex. Crim. App. 1997). “The

term ‘probative value’ refers to the inherent probative force of an item of evidence–that is, how

strongly it serves to make more or less probable the existence of a fact of consequence to the

litigation–coupled with the proponent’s need for that item of evidence.” Casey v. State, 215 S.W.3d

870, 879 (Tex. Crim. App. 2007). “‘Unfair prejudice’ refers to a tendency to suggest decision on

an improper basis, commonly, though not necessarily, an emotional one.” Id. at 880. All testimony

and physical evidence are likely be prejudicial to one party or the other. Jones v. State, 944 S.W.2d

642, 653 (Tex. Crim. App. 1996). It is only when there exists a clear disparity between the degree

of prejudice of the offered evidence and its probative value that Rule 403 is applicable. Williams,

958 S.W.2d at 196.

       The probability that appellant would commit criminal acts of violence that would constitute

a continuing threat to society was a “fact of consequence” in this punishment trial. Art. 37.071, §

2(b)(1). In the instant case, appellant brutally raped, beat, and strangled a fifteen-year-old girl and

then cut off her fingertips to remove potential DNA evidence. The state presented evidence that, in

the past, appellant had displayed aggressive behavior, had been in trouble at school, and had been

placed on probation for a theft offense in North Carolina. Defense counsel argued, “Maybe he

wasn’t a good person back then, but he’s a good person now,” pointing out that “he’s been trying to

do the right things” since he was incarcerated and that he had no documented incidents of violence

in prison. The evidence that appellant became a Satanist while in prison helped to rebut that defense

argument.

       As the prosecutor stated in closing argument, evidence of appellant’s affiliation with

Satanism was “another piece of the puzzle” for the jury to consider when answering the special
                                                                                                     9
issues. This evidence was one of the factors that affected the probability that appellant would be a

danger in the future, just like the facts of the offense that he committed and his prior history and

violent artwork. It was not so prejudicial that there was a clear disparity between the degree of

prejudice and its probative value. Thus, the trial court did not abuse its discretion in admitting this

evidence. Point of error one is overruled.

                                  CHALLENGES FOR CAUSE

       In point of error two, appellant alleges that the trial court improperly denied his challenges

for cause against venire members Sharon Ann Neumann, Alejandro Melero, and Luis Romo.

Appellant alleges that these venire members were challengeable for cause under Article 35.16

because they were biased either against appellant or against some part of the law upon which he was

entitled to rely. Art. 35.16(a)(9) and (c)(2).

       To preserve error for a trial court’s erroneous denial of a challenge for cause, appellant must

show that: (1) he asserted a clear and specific challenge for cause; (2) he used a peremptory

challenge on the complained-of venire member; (3) his peremptory challenges were exhausted; (4)

his request for additional strikes was denied; and (5) an objectionable juror sat on the jury. Green

v. State, 934 S.W.2d 92, 105 (Tex. Crim. App. 1996). Appellant has properly preserved error with

respect to each of the challenged venire members.

       If a trial judge errs in overruling a challenge for cause against a venire member, then a

defendant is harmed if he uses a peremptory strike to remove the venire member and thereafter

suffers a detriment from the loss of the strike. Feldman v. State, 71 S.W.3d 738, 744 (Tex. Crim.

App. 2002). Appellant was denied any additional peremptory strikes. To demonstrate harm,

appellant must show that the trial court erroneously denied one challenge for cause. Chambers v.
                                                                                                   10
State, 866 S.W.2d 9, 23 (Tex. Crim. App. 1993).

       When reviewing a trial court’s decision to deny a challenge for cause, we look at the entire

record to determine if there is sufficient evidence to support the ruling. Feldman, 71 S.W.3d at 744.

The test is whether a bias or prejudice would substantially impair the venire member’s ability to

carry out the juror’s oath and judicial instructions in accordance with the law. Gardner v. State, 306

S.W.3d 274, 295 (Tex. Crim. App. 2009). Before venire members may be excused for cause, the

law must be explained to them, and they must be asked whether they can follow that law, regardless

of their personal views. Id. The proponent of a challenge for cause has the burden of establishing

that the challenge is proper. Id. The proponent does not meet this burden until he has shown that

the venire member understood the requirements of the law and could not overcome his or her

prejudice well enough to follow the law. Id.

       We review a trial court’s ruling on a challenge for cause with considerable deference because

the trial judge is in the best position to evaluate a venire member’s demeanor and responses. Id. at

295-96 (citing Colburn v. State, 966 S.W.2d 511, 517 (Tex. Crim. App. 1998)). A trial judge’s

ruling on a challenge for cause may be reversed only for a clear abuse of discretion. Id. at 296.

When a venire member’s answers are vacillating, unclear, or contradictory, we accord particular

deference to the trial court’s decision. Id.

                                       Sharon Ann Neumann

       Appellant claims that Neumann was biased against him because she “was uncomfortable with

Satanism” and she “described the religion as evil and contrary to everything [she] believe[d].” When

defense counsel questioned Neumann about her religious affiliations, she stated that she was a

practicing Christian. Defense counsel then continued to question Neumann.
                                                                                 11
Q.   Now, what if I told you that in the last two years, since 2005, I have changed
     from a devout Catholic to a fervent satanist?

A.   Okay.

Q.   Okay. It’s a drastic change.

A.   It’s huge.

Q.   Okay. Are you still okay with that?

A.   That makes me uncomfortable.

Q.   Why?

A.   Because it’s contrary to everything I believe.

                                      ...

Q.   I’m sure there’s some satanists that have committed some very, very violent
     acts. Does that make everybody who’s a satanist evil?

A.   I don’t–I think they’re evil because they’re satanist, not because they
     committed the violent act.

Q.   So anyone who’s a satanist is evil?

A.   I think they worship evil. To me, Satan is equivalent to evil, being raised the
     way I’ve been raised.
                                     ...

Q.   So anyone who’s a satanist is evil, in your opinion?

A.   I think they worship evil. I think they could come across as a typical citizen
     most times . . ..

                                      ...

Q.   But when it comes to satanists, they–you feel that they worship evil?

A.   I think if they’re true satanists, they worship evil. But I don’t know that it
     would come out all the time. At some point it would. But I don’t know
     much about that, so . . ..
                                                                                                   12
       Neumann further stated that her son had roomed with a satanist for a short time when he was

in college, which made her “very unnerved.” However, she stated that “nothing bad ever happened,”

and her son “was not hurt in any way.” Thus, she agreed that her only one-on-one encounter with

a Satanist had been peaceful. Finally, Neumann acknowledged that even if she learned that appellant

was a Satanist, she could still be fair and impartial and base her decision on the evidence.

       Defense counsel challenged Neumann for cause, arguing that she could not be fair because

she was “shocked” about the possibility that appellant might be a Satanist and she said that Satanism

was “everything contrary to her belief system.” The trial court denied the challenge, and the record

supports the trial court’s ruling. Neumann ultimately stated that she could follow the law, regardless

of her personal views. Appellant has failed to meet his burden to show that Neumann had a bias or

prejudice that would have substantially impaired her ability to carry out her oath and instructions in

accordance with the law. See Gardner, 306 S.W.3d at 295.

                                         Alejandro Melero

       Appellant complains that Melero was biased because he “was leaning towards death over

life” and he “expected Appellant to prove that the death penalty was not appropriate.” Any venire

member who would automatically answer the future-dangerousness special issue in the affirmative

or who would place the burden of proof on the defense is challengeable for cause under Article

35.16(c)(2) for having a bias or prejudice against a law applicable to the case upon which the defense

is entitled to rely. Feldman, 71 S.W.3d at 745.

       Appellant specifically complains about Melero’s responses to defense counsel’s questioning.

       Q.      In your questionnaire you stated that you’re in favor of the death penalty,
               right?

       A.      Yes.
                                                                                  13


Q.   When you say you’re in favor of it, what do you mean by that?

A.   I believe it’s an appropriate punishment if someone is found guilty of it and
     that’s the punishment given to them, it’s fair.

Q.   Is it fair to say you’re leaning towards giving death over giving life, right?

A.   Yes.

Q.   And, I mean, you were asked about this statement. “Any person, man or
     woman, young or old, who commits capital murder, should pay with his own
     life,” right?

A.   Yes.

Q.   You put that you agree with that, right?

A.   Yes.

Q.   You feel pretty strongly about that, right?

A.   Yes, sir.

                                       ...

Q.   Okay. Now, you were asked, well, can you wait to hear all the evidence,
     okay?

A.   Yes.

Q.   You were asked that statement earlier. And you’re open to the possibility that
     we might be able to provide some reason to not give the death penalty, right?

A.   Yes, sir.

Q.   Okay. But in reality, you’re going to expect us to prove to you that the death
     penalty is not the appropriate way to go, right?

A.   Yes.

Q.   If we can’t prove to you that the death penalty is not appropriate, then in your
     opinion it should be the death penalty, right?
                                                                                           14
       A.      Yes.

       Q.      And you understand that that’s a little bit different than the way [the] law
               works, right?

       A.      In what aspect?

       Q.      Well, in the aspect that they have to prove to you that the death penalty is
               appropriate.

       A.      Okay. Yes, sir.

       Q.      And in your mind it should be the reverse, right? If you kill someone, you’ve
               got to prove to me that you should live, right?

       A.      Yes.

                                                 ...

       Q.      Okay. And by the same token, in this case your initial, you know, your
               inclination is to say that death is appropriate unless the Defense can prove
               otherwise, right?

       A.      Yes, sir.

       Q.      So you’re going to put the burden on us to prove to you that he should live,
               right?

       A.      Yes, sir.

       Q.      And you feel pretty strongly about that, right?

       A.      Yes, sir.

       Defense counsel then explained to Melero that “[t]he first question the State has to prove to

you beyond all reasonable doubt . . . [is] that there is a probability that the Defendant would commit

criminal acts of violence that would constitute a continuing threat to society.” Defense counsel

explained that “[i]f they don’t prove that to you regardless of what we do, we present no evidence

at all, if they don’t prove it, then the answer has to be no.” Defense further questioned Melero.
                                                                                   15
Q.   I’m asking you about your opinion. Do you have an opinion already as to
     what the answer to question 1 is?

A.   No. I say I have to listen to what the evidence is presented on it to see if it
     was reasonable or if they could prove it, that that was–that he would show a
     threat to that. I’m open to the fact that if you’re going to present the evidence
     to that, to show me otherwise, then that’s, I think, a fair thing to do.

                                       ...

Q.   You see where we’re at, right? I mean, you’re telling me that on the one hand
     you expect us to convince you of something. On the other hand you’re saying
     I would wait to listen to the evidence and then make–there’s a–do you see the
     conflict there?

A.   Yes, sir.

Q.   So I guess my question, I’ll just ask you. Which way is it? Do you expect us
     to unconvince you or . . ..

A.   Based on what I’m hearing from them, I would expect them to show me, you
     know, giving me the burden of proof that they have that. They’re supposed
     to show me on that.

Q.   That’s the law, okay?

A.   Yes.

Q.   And that’s the law and eventually, I mean, I’ll ask you that question, okay?

A.   Okay.

Q.   That’s the law that you’re required to follow. My question is, you know,
     based on the way you want to see it happen in your mind, okay, or the way
     you feel it should happen, that we should unconvince you, okay?

A.   I’m not sure that’s fair to say. Again, when I answered these questions, there
     were things -- you know, you’re asking my opinion–

Q.   Right.

A.   –at the time. You’re talking having sat in there for four hours. It’s kind of
     – a little hard to get your mind together on a lot of things. Hearing now what
     you’re telling me, then that shows me that, you know, the way it’s supposed
                                                                                           16
               to go and how it’s supposed to be. Based on hearing that, I’m willing to be
               open to see the burden of proof and follow the law like you said to see what
               it shows.

       When defense counsel further questioned Melero after this exchange, Melero continued to

acknowledge that he would follow the law and hold the state to its burden of proof on the future-

dangerousness special issue. Defense counsel then challenged Melero for cause, arguing that he was

biased in favor of the state, that he would expect the defense to “unprove that [appellant] should be

subject to the death penalty,” and that “his opinions were very strong in favor of the death penalty.”

The trial court denied the challenge for cause.

       The trial court did not abuse its discretion by denying appellant’s challenge for cause to

Melero. When defense counsel explained the law to him, Melero agreed that he could set aside his

personal opinions and follow the law requiring the state to prove the future-dangerousness special

issue beyond a reasonable doubt. Appellant has not shown that Melero had a bias that would have

substantially impaired his ability to carry out his oath and instructions in accordance with the law.

See Feldman, 71 S.W.3d at 744.

                                             Luis Romo

       Appellant contends that Romo was biased against him because Romo “had a bad experience

with an uncle possessed by the devil” and “[h]e admitted the incident would sway how he would

view evidence of Satanism.” In response to defense counsel’s initial questioning, Romo stated that

he did not consider Satanism a religion, that a person should not be able to practice Satanism as a

religion, and that it would affect him as a juror if he found out that the defendant was a Satanist.

Then the prosecutor questioned him further on this topic.

       Q.      Satanism. Do you know something about this?
                                                                                   17
A.   I mean, what I’ve seen and heard.

Q.   Okay. Here’s a little law in our court. You shouldn’t prejudge evidence.
     Okay? Just like you shouldn’t prejudge people. Remember we talked about
     a policeman can come in here or a priest or whatever. We don’t want you to
     judge them by who they say they are. We want you to wait, listen to the
     evidence, and then decide. Remember that?

A.   Yes, sir.

                                       ...

Q.   Right now you haven’t heard any evidence about satanism, whether it’s a
     religion or not. Is that correct?

A.   Yes, sir. I mean, I have bad persons, but you know, I’m just taking it from
     my persons it’s something bad.

Q.   Tell me about that. What’s the bad?

A.   Something I’d rather keep within myself.

Q.   No, you’ve got to tell us here. Well, let me ask it this way. Is it something
     so bad -- here’s going to be the ultimate question. This satanism thing, you
     haven’t heard any evidence of it here in this courtroom yet. So here’s the rule
     of law. Don’t prejudge it until you hear about whatever the satanism is here,
     okay?

A.   Yes, sir.

Q.   Now, do you think you can do that?

A.   Yes, sir. I mean, if he’s here, he’s got to present whatever he’s got to present.
     You’re judged by what they present.

Q.   You may not hear anything about satanism. And if you don’t, good and fine.
     If you do, though, you’ve got to rule or make your judgments about the
     evidence that you hear in this courtroom about those things. Does that make
     sense to you?

A.   Yes, sir.

Q.   Okay. Can you do that?
                                                                                  18
A.   Yes, sir.

Q.   Okay. So whatever has happened to you, whatever the story is with satanism,
     whatever that is, this is what the law would require you to do, if you can. Put
     it aside, wait and hear about this satanism that happens here, if you hear about
     it. Can you do that?

A.   Yes, sir.

Q.   You sure?

A.   I mean, I can hear it, judge by what I hear.

Q.   That’s what the law requires you to do, if you can do that. And you’re saying
     you can do that, is that correct?

A.   Yes, sir. I feel confident I can do that.

Q.   Okay. All right. What you can’t have, according to the law, is a bias or
     prejudice against somebody before you even hear the evidence, understand?

A.   Yes, sir.

                                       ...

Q.   Right now you can believe anything you want. We’re welcoming your
     opinions. If you’re a juror in this case, the requirement will be that you wait.
     From the evidence in this case, make your decisions about satanism or
     whatever else comes in based upon the evidence that comes in in this case.
     And can you do that?

A.   Yes, sir.

Q.   So ultimately, the question becomes this. Are you able to set aside your
     whatever biases or prejudices or feelings or knowledge you have about
     satanism? Wait to learn about it from this case, if you do, and then apply it
     in that case. Can you do that?

A.   Yes, sir. Yes, sir.

Q.   So let’s say you were to hear about satanism in a case. This is before you’ve
     heard any evidence. Are you able to weigh all of the evidence in a case to
     come to whatever your conclusions are to question number 2, regardless?
                                                                                             19
       A.      Yes, sir. I think I could.

       Q.      Well, I need a little more sure than think, if you can.

       A.      Yes, sir. I mean, I can.

       Defense counsel then asked Romo what experiences he had with Satanism. Romo stated that

he “just had a bad experience [on] one occasion,” and he refused to discuss it. He agreed that

Satanism was evil and that it should not be practiced in the United States. When defense counsel

asked if this would affect him as a juror, Romo stated: “I mean, I can hear the case and if it’s a case,

it’s a case. And I feel I can wait till [sic] they prove all the evidence and I can decide what to do, I

guess, in that occasion.”

       Defense counsel then challenged Romo for cause due to his bias against Satanism. The trial

court denied the challenge, but later granted defense counsel’s request to bring Romo back for

further questioning regarding his “bad experience” with Satanism.

       Well, I mean, I just–I was at my house and we had visit[ors] over, and one of my
       uncles got into it with my father. And we had just a little family dispute and my
       uncle was really into stuff like that, you know, into doing his, I guess what you call
       satanism or whatever it is. And he went into some sort of language that he spoke.
       And when he walked out, when we threw him out of the house, he left. And when
       he left, maybe two seconds later, he returned and he’s got a mark on his back, like
       three little drawings.

       And he came in and, I mean, it’s just the way he came in and approached us, you
       know. He said he was the devil, he was going to get even, and, you know, and
       there’s standard ways of doing things. And I mean, just a view of his face, really,
       wasn’t what we expected him to be, you know. And it’s well recorded in my head
       what he looked like and what he did, you know. I mean, I’ve always held that I really
       don’t want to really discuss in real big details on what–I mean, this was back about
       maybe–I was about 14, so you’re talking about 15, 16 years ago, maybe a little more.
       And it’s just very uncomfortable for me to discuss this because I mean, backtracks
       me, you know, and it’s just very bothersome for me and, I mean, this is something–I
       mean, I don’t know, it just makes me very, very uncomfortable.

       When defense counsel continued to question Romo after this point, Romo agreed that his bias
                                                                                                    20
against Satanism would affect how he viewed the evidence. Upon further questioning by the state,

however, Romo agreed that he would listen to the evidence and base his decision on that alone.

Defense counsel then pointed out, “You say it won’t affect you, but you said it would affect you.”

Romo replied that he would listen to the evidence and that he would not make decisions based on

what had happened to him. Finally, the trial court questioned Romo.

       THE COURT: Under the law the juror is required to render a verdict solely on the
       evidence that they hear. And they will be specifically instructed they cannot refer to
       any personal experiences, any expertise that they might have, things of that nature.
       In other words, you can’t go to the jury and say, oh, this happened to me. You can’t
       do that. That’s not the evidence in this case.

       [ROMO]: Yes, sir.

       THE COURT: Could you follow that instruction?

       [ROMO]: Yes, sir.

       THE COURT: Could you set aside that prior experience that you had when you’re
       analyzing the evidence, whatever it is?

       [ROMO]: Yes, sir.

Following this exchange, defense counsel again challenged Romo for cause due to his bias against

Satanism. The trial court again denied the challenge.

       The record supports the trial court’s ruling. We accord particular deference to the trial

court’s ruling when a venire member vacillates in his or her answers. Gardner, 306 S.W.3d at 296.

Although Romo vacillated in his answers, he ultimately stated to the trial court that he could set

aside his bias and follow the law. Point of error two is overruled.



                                     EXPERT TESTIMONY

       In point of error three, appellant contends that the trial court erred in allowing Donald Haley,
                                                                                                    21
the state’s expert on Satanism, to testify about the Satanic religion and the beliefs and practices of

its practitioners. Rule 702 of the Texas Rules of Evidence provides that “[i]f scientific, technical,

or other specialized knowledge will assist the trier of fact to understand the evidence or to determine

a fact in issue, [then] a witness qualified as an expert by knowledge, skill, experience, training, or

education may testify thereto in the form of an opinion or otherwise.” Before admitting expert

testimony under Rule 702, the trial court must be satisfied that three conditions are met: (1) the

witness qualifies as an expert by reason of his knowledge, skill, experience, training, or education;

(2) the subject matter of the testimony is an appropriate one for expert testimony; and (3) admitting

the expert testimony will actually assist the factfinder in deciding the case. Alvarado v. State, 912

S.W.2d 199, 215-16 (Tex. Crim. App. 1995). These conditions are commonly referred to as (1)

qualification, (2) reliability, and (3) relevance. Vela v. State, 209 S.W.3d 128, 131 (Tex. Crim. App.

2006). Appellant argues that the state failed to demonstrate that Haley was qualified or that his

expert testimony was reliable.

        Qualification is a two-step inquiry. Id. A witness must first have a sufficient background

in a particular field, and a trial judge must then determine whether that background goes to the matter

on which the witness is to give an opinion. Id. The proponent must establish that the expert has

knowledge, skill, experience, training, or education regarding the specific issue before the court that

would qualify the expert to give an opinion on that particular subject. Id. at 132. The focus is on

the fit between the subject matter at issue and the expert’s familiarity with it. Id. at 133. Because

the spectrum of education, skill, and training is so wide, a trial court has great discretion in

determining whether a witness possesses appropriate qualifications as an expert on a specific topic

in a particular case. Id. at 136.
                                                                                                                 22
        Haley testified on voir dire examination that he had associate’s degrees in criminology and

administration of justice, a bachelor’s degree in criminology, and a master’s degree in public

administration with a concentration in justice administration. He was employed as the Director of

Administration of Justice at Tidewater Community College in Virginia Beach, Virginia, where he

had taught multiple courses that included the subject of Satanism.5 He had previously worked at a

Virginia state prison, the Virginia Beach Sheriff’s Office, the Chesapeake Police Department, and

the Virginia Beach Police Department. He had studied and researched Satanism since 1989, and he

had taught and provided expert consultation on this subject to police officers and FBI agents. He had

taught 78 people from various agencies in a two-day course on “satanism, the occult, and the black

arts” at regional academy in El Paso County, and had written a manual that he used when teaching

classes on Satanism to law-enforcement officers and personnel. He had never before testified as a

Satanism expert, but he was considered an expert on the subject by the Virginia Gang Association

and the college where he worked. When asked if there were “any publications on satanism that have

been part of [his] studies,” he named numerous articles and books, including The Satanic Bible, In

the Name of Satan, Satan Speaks!, The Book of Thelema, The Devil’s Dictionary, and the Dictionary

of Satanism, and he expressed familiarity with the “Nine Satanic Sins” and the “Eleven Satanic

Rules of the Earth.” He gave specific cases in which he had advised law-enforcement personnel on

the subject of Satanism, and he named other experts with whom he had conferred about cases

involving Satanism. When asked if he had found documentation and evidence “that members of the

satanic religion have a philosophy or belief system advocating violence,” he testified about the



        5
            Haley explained that “administration of justice . . . is a synonymous term with a criminal justice
program.”
                                                                                                     23
discussion of human sacrifice in The Satanic Bible and the rituals of destruction in The Satanic

Rituals. When asked if he had researched any “satanists that have committed illegal or violent acts,”

he gave the examples of California serial-killer Richard Ramirez and the murder of a teenage girl

that was written about in the book entitled In the Name of Satan. When asked if he knew of cases

“of either death or mutilation by satanists,” he repeated these two examples and added several more.

At the conclusion of voir dire examination, the trial court ruled that Haley could “testify in the area

of the satanic religion and to its religious philosophies and to whatever it is that the [Satanic] Bible

permits or recommends or all of those things that you talked about.”

       Appellant contends that Haley was not qualified to testify as an expert because he “had never

taken any classes on Satanism,” he “had absolutely no theological training,” and he “had never

written any articles on the subject.” Haley acknowledged that he had not taken any formal courses

in Satanism while obtaining his degrees, but he testified that he had spent approximately 19 years

studying that subject. Although Haley confirmed that he had not written any formally published

articles about Satanism, he testified that he had authored a 50-page manual that he used when

teaching classes on that topic. Given Haley’s years of researching, studying, teaching, and advising

about the subject of Satanism, we conclude that the trial court did not abuse its discretion in

permitting Haley to testify over appellant’s qualification objections.

       We next turn to appellant’s claim that Haley’s testimony “could not be shown to be reliable.”

The reliability of “soft” science evidence may be established by showing that: (1) the field of

expertise involved is a legitimate one; (2) the subject matter of the expert’s testimony is within the

scope of that field; and (3) the expert’s testimony properly relies upon or utilizes the principles

involved in that field. Nenno v. State, 970 S.W.2d 549, 561 (Tex. Crim. App. 1998), overruled on
                                                                                                      24
other grounds by State v. Terrazas, 4 S.W.3d 720, 727 (Tex. Crim. App. 1999). The evidence shows

that Haley’s expert testimony was reliable under Nenno. Haley was considered an expert on the

subject of Satanism by Tidewater Community College and the Virginia Gang Association, had

conferred with other experts on the subject in various cases, and had spent years teaching the subject

to college students and law-enforcement personnel. He had read numerous articles and books on the

subject, and his testimony regarding Satanic philosophy relied directly upon these sources. The trial

court did not abuse its discretion in admitting Haley’s expert testimony over appellant’s reliability

objections. Point of error three is overruled.

                                      BATSON CHALLENGE

        In point of error four, appellant argues that the trial court erred in overruling his Batson

objection to the State’s peremptory strike against prospective juror Jason Cofield. Batson v.

Kentucky, 476 U.S. 79 (1986). Appellant asserts that “the State’s professed reasons for striking juror

Cofield were contrived in order to conceal racially discriminatory intent” and that the trial court’s

ruling was clearly erroneous.

        A defendant who objects under Batson must make a prima facie showing of racial

discrimination in the state’s exercise of its peremptory strikes. See Herron v. State, 86 S.W.3d 621,

630 (Tex. Crim. App. 2002); see also Mathis v. State, 67 S.W.3d 918, 924 (Tex. Crim. App. 2002).

The burden then shifts to the state to articulate race-neutral explanations for its strikes. Id. Once the

prosecutor has articulated race-neutral explanations, the burden shifts back to the defendant to show

that the explanations are a pretext for discrimination. Id. The trial court must then determine

whether the defendant has carried his burden of proving discrimination. Id. The trial court’s

determination is accorded great deference and will not be overturned on appeal unless it is clearly
                                                                                                    25
erroneous. Id.

       In the instant case, we need not address whether the appellant established a prima

facie case. Where, as in this case, the prosecutor has articulated his reasons for the challenged

peremptory strike and the trial court has ruled on the ultimate question of intentional discrimination,

that issue becomes moot. Young v. State, 283 S.W.3d 854, 866 (Tex. Crim. App.), cert. denied, 130

S. Ct. 1015 (2009). We review the record of a Batson hearing and the voir dire examination in the

light most favorable to the trial court’s ruling. Id.

       When appellant objected to the state’s peremptory strike against Cofield under Batson, the

prosecutor articulated the state’s reasons for the strike.

       Mr. Cofield, my notes indicate[,] said this to us. One, it’s never too late for people
       to change. Anyone can change. That was the first thing he said.

       And then when he was spoken to about the burden of proof, he said these things. He
       said he needed an enormous amount of evidence, that–he was asked by Counsel for
       Defense if the fact of the murder itself weighed with him and he said, I’m not even
       close, based on stating of the crime, that I need an enormous amount of evidence.
       And for all those reasons we struck him, because it looked like he was putting some
       kind of, one, weight number on the evidence, and he was requiring us to do
       something that, at least in my opinion, that we don’t have to do, as I’ve maintained
       throughout the entire trial.

       A juror can, if he wishes, find a person guilty and answer 1 and 2 based upon the
       evidence of the crime alone. I thought I had case law to support that and he disagrees
       with that so I disagree with him.

Following the prosecutor’s explanation, the trial court denied appellant’s Batson challenge with

regard to Cofield.

       Appellant engages in a comparative analysis on appeal to show that the State’s reasons for

striking Cofield were actually a pretext for discrimination. He argues that prospective jurors Sharon

Ann Neumann and Irma Medina answered in a similar fashion regarding the amount of proof they
                                                                                                   26
needed to affirmatively answer the future-dangerousness special issue. However, the voir dire record

demonstrates that these two prospective jurors ultimately agreed to require the state to prove future

dangerousness beyond a reasonable doubt.

       Appellant contends that Neuman “indicated that she would have to be ‘99.999’ [percent] sure

before she could impose the death penalty.” The prosecutor initially pointed out during voir dire that

Neumann stated in her jury questionnaire that she believed in the death penalty for an “[i]ntentional

killing of an innocent person if there is irrefutable evidence such as [a] DNA match.” The prosecutor

expressed concern that Neumann’s use of the term “irrefutable” meant she would require the state

to prove its case “beyond all doubt” instead of “beyond a reasonable doubt.” Neumann replied,

       I guess for me it would take something such as a DNA test with something like a
       99.999 percent chance, and everything else pointing to it. You know what I’m
       saying? With nothing in mind, in addition, I guess, to the testing. There would have
       to be nothing in my mind that makes me think, no, he didn’t do it, or, no, it wasn’t
       that way.

The prosecutor then reminded Neumann that another jury had already determined that appellant was

guilty of capital murder, and that she would “not be able to disagree with whether or not he

committed capital murder because [she would] be instructed that that is the fact of the matter.”

Neumann expressed her understanding of this concept. When later questioned by defense counsel,

she acknowledged that she understood the term “beyond a reasonable doubt” and that she would hold

the state to that burden when deciding the issue of appellant’s future dangerousness.

       Appellant contends that Medina “made a statement that she needed to be really convinced

before she could find in favor of the State.” The prosecutor initially explained to Medina that the

state had to prove the future-dangerousness special issue beyond a reasonable doubt, and Medina

indicated her understanding of this concept. When defense counsel later asked Medina how much
                                                                                                 27
proof she would require from the state in order for her to affirmatively answer the future-

dangerousness special issue, she replied, “How much? Needs to really convince me.” Defense

counsel then reiterated that the standard of proof was “beyond a reasonable doubt.” Like Neumann,

Medina stated that she understood the standard of proof and that she would hold the state to that

standard when answering the future-dangerousness special issue.

       Cofield, however, testified that he would require more proof in order to affirmatively answer

the future-dangerousness special issue. The prosecutor questioned Cofield about his ability to

answer the special issues.

       Q.      And I think it told you in the questionnaire that, you know, he was found
               guilty of murdering someone while in the course of committing or attempting
               to commit aggravated sexual assault.

       A.      All right.

       Q.      So that’s already a done deal.

       A.      Correct.

       Q.      That’s not something you’re going to decide.

       A.      Right.

       Q.      And you know, I’m not saying that–well, my question to you is, based on that
               alone, is that already enough, you know, based on that, have you already
               made up your mind one way or the other?

       A.      No, because I still don’t know–I know what he’s been guilty of, but I still
               don’t have enough evidence to sit here and make a decision as–type of
               decision that you guys are asking us, or asking me as a possible juror to
               make. It’s got to be a lot. It’s got to be enormous, enormous–enough
               evidence to sit here and make that type of decision. I’m not going to say it’s
               going to happen overnight. It’s a tough decision.

                                                ...

       Q.      I was saying, but you need more than a simple fact that the crime was
                                                                                             28
                committed, right?

         A.     Correct.

         Q.     You’re basically going to look at all the evidence that’s presented to you.
                And you’re willing to do that, right?

         A.     Correct.

         Q.     That’s what we want you to do. We want you to sit and wait and hear
                everything before you make a decision, okay?

         A.     Okay.

         Q.     The reason I ask is because some people, you know, will hear, well, he
                committed that. If he did that, then that’s it. It’s over in my mind, okay.

         A.     Okay.

         Q.     That’s enough for me to say, you know, that is the appropriate punishment.
                You’re saying you’re not there, right.

         A.     No, I’m not even close there.

         Q.     You’re not there by a long shot?

         A.     Yeah, I’m not even there.

         In response to continued questioning by the prosecutor, Cofield reiterated that he

needed to hear “a lot of evidence” or an “enormous” amount of evidence in order to answer

the future-dangerousness question in the affirmative, notwithstanding the fact that appellant

had already been found guilty of murder in the course of committing or attempting to commit

sexual assault. At the conclusion of his voir dire questioning, Cofield agreed that he could

not affirmatively answer the future-dangerousness question based on the facts of the case

alone.

         Cofield also stated on voir dire that he worked as a detention officer for the Juvenile
                                                                                           29
Probation Department and that he greatly enjoyed inspiring juvenile offenders to change their

lives for the better. He further stated that “[i]t’s never too late” and that “[a]nybody can

make a change.”

       When the trial court denied appellant’s Batson challenge, defense counsel stated,

       Again, I believe some of the jurors–and I can’t point to them exactly right now–but
       I think other jurors also indicated the same thing, you know, people do change,
       people do get rehabilitated. Just by looking at their questionnaires I believe there’s
       other jurors that are sitting on this panel that believe that, you know, rehabilitation
       and changing is something that can be done. So that’s my response and that’s why
       I don’t think those reasons are sufficient, Your Honor.

       Appellant now argues on appeal that “several juror sheets indicated the same beliefs”

regarding the issue of rehabilitation; however, the jury questionnaires were not made a part of the

record on appeal. In his appellate brief, he specifically mentions prospective jurors Victor Reveles,

Richard Salcido, Veronica Collier, John Almanzar, and Jessica Portillo. Our review of their voir

dire testimony does not support a finding of pretext.

       The state’s explanations for striking Cofield were facially race neutral, and appellant has not

demonstrated evidence of pretext. Thus, the trial court did not abuse its discretion in denying

appellant’s Batson challenge to Cofield. Point of error four is overruled.

                                 CONFRONTATION CLAUSE

       In point of error five, appellant asserts that the trial court erroneously admitted his high-

school records, labeled state’s Exhibit 237. Appellant claims that this exhibit, which contained an

entry stating that he threatened and pushed another student, was admitted in violation of his Sixth

Amendment right to confront the witnesses against him. However, there is no indication in the

record that this exhibit was ever submitted to the jury.

       The state offered the exhibit prior to the testimony of Nelson Negron and Clifton Gordon
                                                                                                  30
McQueen, two school-resource officers who worked at appellant’s high school. When the parties

discussed the admissibility of the exhibit at the bench, defense counsel objected.

       THE COURT: You need to direct my attention to the areas that you’re objecting to.
       You can’t make a blanket objection.

                                                ...

       [DEFENSE COUNSEL]: Yes, Your Honor. There’s reference to–Actually, it’s the
       next one. I apologize. It’s the next one after that. Talks about threatened a student
       and pushed, then he got out, a school suspension. I would argue to the Court that
       “that person threatened a student and pushed” is based on hearsay from another
       person and it’s not something that was–you know, that qualifies under the business
       records exception.

       [PROSECUTOR]: The relevant portion of this, Your Honor, is that the Defendant
       in this case was, indeed suspended. The action of the school and the relevance of this
       document are to show his character and his background. When he was attending
       school he was suspended several times for different reasons and that’s why we
       offered the documents in the first place. The result is what is the significant part.

       [DEFENSE COUNSEL]: I’m not arguing relevance, I’m arguing hearsay within
       hearsay. You know, I understand the business records come in under the -- you
       know, they filed their affidavit and everything and they filed them at the court. I’m
       arguing that that specific portion references hearsay within hearsay that is not
       admissible under the business record exception. Hearsay and confrontation to that
       particular portion that says “threatened a student and pushed.”

                                                ...

       THE COURT: I’m going to overrule the objection.

       Negron and McQueen then testified about their encounters with appellant at his high school.

State’s Exhibit 237 was not mentioned during their testimony. Negron did not testify regarding the

particular incident at issue. McQueen testified that he was present in 1999 when an “assistant

principal was going to suspend [appellant] for an assault,” but he provided no further details

regarding that incident. Later, after both sides closed, the parties had a discussion regarding the

removal of exhibits that had not been identified or specifically discussed before the jury. The trial
                                                                                                                        31
court complied with the state’s request to remove Exhibit 237 until it could verify whether or not it

had been discussed. The record does not reflect that Exhibit 237 was mentioned again or that it was

ever submitted to the jury for consideration.

         Defense counsel objected only to the specific notation in the school records that appellant

“threatened a student and pushed.” McQueen did not testify to that effect. Since it appears that the

exhibit was never submitted to the jury, and since McQueen testified only that he was present when

assistant principal was going to suspend appellant for an assault, appellant has failed to demonstrate

a Confrontation Clause violation. See Hinojosa v. State, 4 S.W.3d 240, 253 (Tex. Crim. App. 1999)

(finding no error when evidence at issue was never presented to the jury). Point of error five is

overruled.

                                   ADMISSION OF PHOTOGRAPHS

         In point of error six, appellant argues that the trial court violated Rules 401 and 403 by

admitting the autopsy photographs labeled state’s Exhibits 71, 106 through 110, and 256 through

262. He contends that these photographs were not relevant or necessary because he “had previously

been found guilty as charged in the indictment . . . [that] listed all the different manners of causing

[the] decedent’s death[.]” He also contends that any probative value of the photographs was

substantially outweighed by their prejudicial effect.

         During the testimony of Dr. Corinne Elizabeth Stern, the medical examiner who performed

Medina’s autopsy, appellant made relevance and Rule 403 objections to the autopsy photographs that

had been previously admitted at the guilt phase of his 2002 trial.6 Before appellant made these


         6
           W e note that after both sides closed, the parties had a discussion regarding the removal of exhibits that
had not been identified or specifically discussed before the jury. The state agreed to remove Exhibit 258 from the
                                                                                                        (continued...)
                                                                                                                      32
objections, the parties had discussed the previously admitted evidence, and the trial court had

determined that “any evidence previously received and considered by the jury in returning the guilty

verdict is now received in evidence.” Appellant complained that the state had “not laid a proper

foundation” for the introduction of such evidence, and the state responded.

         This trial can take a long time for issues that have already been decided. The case
         law is clear. The Court–this Court, with all due respect, Your Honor, doesn’t have
         any jurisdiction on anything but the punishment phase at this point. Those issues
         have already been decided and Defense counsel knows this. We’ve been through
         this. I don’t have to lay a predicate. Everything that was admitted in the guilt portion
         is admitted now. There’s no question. They’re basic tenets of law.

         The trial court then stated, “That’s my ruling.” Appellant further argued that this was a

“totally different situation” in that this was a “brand-new” trial in front of a different jury. The trial

court responded, “Your arguments are on the record. I’ve already made my ruling.”

         In its determination of the special issues, the jury is entitled to consider all of the evidence

presented at both the guilt and punishment stages of trial. Art. 37.071, § 2(d)(1); see also Young,

283 S.W.3d at 863. Appellant acknowledged that the evidence had been previously admitted at the

guilt phase of his first trial. However, he argued that the state had to re-offer the evidence because

the punishment hearing was being held before a different jury than the one that had previously

convicted him. There is no requirement that evidence admitted at guilt phase must be re-offered

before it can be considered at punishment. Trevino v. State, 100 S.W.3d 232, 238 (Tex. Crim. App.

2003). The trial court did not abuse its discretion by admitting the photographs that had been

previously admitted at the 2002 trial. See Russeau v. State, 291 S.W.3d 426, 432 (Tex. Crim. App.


         6
             (...continued)
jury’s consideration. In addition, the record does not reflect that an exhibit labeled state’s Exhibit 261 was offered or
admitted at trial. W e further note that appellant did not specifically object to state’s Exhibit 71 until after Dr. Stern
testified about it. See T EX . R. A PP . P. 33.1.
                                                                                                  33
2009) (when a case is on remand to the trial court for a new punishment hearing, the trial court’s

jurisdiction is statutorily limited to punishment issues). Point of error six is overruled.

                                    ADMISSION OF JOKES

        In point of error seven, appellant contends that the trial court erred in admitting an audio

recording of the following jokes that appellant told his brother on the telephone while incarcerated.

        VOICE NUMBER ONE: “Hey, you want to hear a joke?”

        VOICE NUMBER TWO: “Yeah.”

        VOICE NUMBER ONE: “What do you tell a woman with two black eyes? Nothing,
        because you already told her twice.”

        VOICE NUMBER TWO: “All right.”

        (Laughter.)

        VOICE NUMBER ONE: “You hear about that man who won the lottery?”

        VOICE NUMBER TWO: “No.”

        VOICE NUMBER ONE: “Okay. He won the lottery, right. And he comes home and
        he tells his wife, ‘Pack your stuff. I just won the lottery.’

        “And she’s like, ‘What do I need to pack? Do I need to pack for the ski trip or do I
        need to pack for the”–(unintelligible.)

        “Just pack your shit and get the hell out of here.’”

        (Laughter.)

        Appellant challenges the admission of this evidence on both constitutional and statutory

grounds, arguing that the trial court violated his First Amendment right to freedom of speech and

Rules 401 and 403 of the Texas Rules of Evidence. This point of error is multifarious because it is

based on more than one legal theory; we will review appellant’s arguments in the interest of justice.

See TEX . R. APP . P. 38.1.
                                                                                                 34
       Appellant alleges that the admission of this evidence allowed the state to “criminalize [his]

thoughts,” in violation of the First Amendment. Although the First Amendment prevents the state

from employing evidence of defendant’s abstract beliefs at sentencing when those beliefs have no

bearing on the issues being tried, such evidence may be admissible if it is shown to be relevant to

the issues involved in the case. Dawson, 503 U.S. at 163-168. Future dangerousness is an issue that

is relevant to the sentencing stage of a capital-murder trial. Mason, 905 S.W.2d at 577. Evidence

of a defendant’s character is one factor that a jury may consider when deciding the future-

dangerousness special issue. Keeton v. State, 724 S.W.2d 58, 61 (Tex. Crim. App. 1987).

       When appellant made a freedom-of-speech objection to the admission of this evidence, the

state responded that it was evidence of appellant’s character, and the trial court overruled the

objection. It is within the zone of reasonable disagreement that this evidence was indicative of

appellant’s character and thus relevant to the issue of future dangerousness. Defense counsel argues

that appellant had been “trying to do the right things” since he was incarcerated, that he was sorry

for what he did, that he took responsibility for his own actions, and that he understood what he did

was wrong. The jokes at issue, which appellant told while incarcerated after raping, beating, and

murdering a 15-year-old female, demonstrated the opposite. This evidence showed that appellant

found the topics of violence and disrespect towards women to be humorous. The trial court did not

abuse its discretion in admitting this evidence over appellant’s First Amendment objection.

       This evidence was also relevant under Rule 401 because it had a tendency to make the

existence of any fact of consequence (i.e., appellant’s future dangerousness) more probable than it

would be without the evidence. TEX . R. EVID . 401. Appellant claims that the evidence should

nevertheless have been excluded under Rule 403 because its probative value was substantially
                                                                                                      35
outweighed by the danger of unfair prejudice. TEX . R. EVID . 403. Although the evidence was

arguably prejudicial, it was not so prejudicial that there was a clear disparity between the degree of

prejudice and its probative value. Williams, 958 S.W.2d at 196. And even if we assume that the

evidence was admitted in violation of Rule 403, appellant was not harmed by its admission. See

TEX . R. APP . P. 44.2(b). The state did not heavily rely on appellant’s jokes, and it presented other,

compelling evidence of appellant’s future dangerousness, including the brutal facts of the offense

and appellant’s prior history, violent artwork, and conversion to Satanism while incarcerated. Point

of error seven is overruled.

                                       JURY ARGUMENTS

       In point of error eight, appellant asserts that the trial court erred when it allowed the state to

argue to the jury that appellant was a con man because, even though he claimed to want to die, he

spent four hours testifying before the jury. Permissible jury argument generally falls into one of four

areas: (1) summation of the evidence; (2) reasonable deduction from the evidence; (3) an answer to

the argument of opposing counsel; or (4) a plea for law enforcement. Cannady v. State, 11 S.W.3d

205, 213 (Tex. Crim. App. 2000). We have consistently held that argument that strikes at a

defendant over the shoulders of defense counsel is improper. Wilson v. State, 7 S.W.3d 136, 147

(Tex. Crim. App. 1999); Dinkins v. State, 894 S.W.2d 330, 357 (Tex. Crim. App. 1995).

       When appellant testified at trial, defense counsel questioned him regarding his journal that

had been admitted into evidence and labeled State’s Exhibit 291. In this journal, appellant wrote:

“What Am I: A confidence man, a coward, a thespian. The virtue of my tribe is essentially deceit.

In short, I am the consummate villian [sic] in a world without heroes.” Appellant described this

exhibit as simply a “concept journal” containing a fictitious “myth.” In response to further
                                                                                                      36
questioning by defense counsel, appellant said that he knew what he did to the victim was wrong and

that he should give up his own life as a consequence of his actions.

       I mean, I’m a piece of crap. I understand that. I’m not asking–I didn’t come here
       looking for salvation. I came here looking for an execution. I’m not asking you all
       to spare my life. I’m asking you all to allow me to give up my life in spite of hers,
       based on the laws that I live by. It’s life for life. I took a life, mine should be taken
       in return. . . . I would tell [the victim’s family] that sorry doesn’t begin to explain
       and it doesn’t begin to justify. . . . Nothing that I can do will ever justify the life that
       I took. It’s not right and it will never be right. There’s nothing that can make it right.
       Only thing I can say is that I’m asking them to allow me to give up my life. . . .
       Again, I didn’t come here looking for salvation. I didn’t come here to look to extend
       my life. I came here looking for an executioner.

       Defense counsel later argued at closing that appellant “deserves to live because he gets it,”

i.e., he understood what he did was wrong and he took responsibility for his own actions without

making excuses for himself. Defense counsel also argued that appellant showed “the ultimate

remorse” by asking the jury “to put him to death because of what he did.” The prosecutor responded

without objection from appellant.

            You know what? He doesn’t get anything. He doesn’t get it at all. And I’ll show
            you why in this evidence. There’s proof that he doesn’t get it, not at all, because
            the bottom line is that [appellant] is a con man. One of the best–and you saw it
            yesterday, almost four hours, and we’ll talk about that. And you know what,
            Ladies and Gentlemen, you don’t even have to take my word for it. There’s
            evidence right there in his own words that he’s a con man. . . . In his own writing
            he says, “What am I? A confidence man, a coward, a thespian. The virtue of my
            tribe is essentially deceit. In short, I am the consummate villain in a world without
            heroes.”

       When the prosecutor continued to refer to appellant as a “con man,” defense counsel

objected.

       [PROSECUTOR]: And Ladies and Gentlemen of the Jury, he’s a con man. And
       here’s his bet. If you buy his con, at the very end of all his testimony, if you buy that
       con when he says execute me, his bet is that you’re going to feel sorry for him and
       you’re going to give him life. He’s put it all in because he doesn’t have anything else
       to lose.
                                                                                             37
       If that were true, if his story that he told you was true, I’m sorry, I didn’t mean to do
       it, give me the death penalty, why did he take almost four hours to explain and justify
       every single thing he did? All his writings, his journal, making up stories that this
       is about some fictional character–

       [DEFENSE COUNSEL]: I’m going to object. That’s striking at the Defendant over
       the shoulders of Counsel. I’m the one that chose to do that direct examination.
       They’re attacking my client for that.

       [PROSECUTOR]: His explanations for all of these pictures, commissioned art and
       all that. He’s a con man. And he’s telling you all this. Why did he spend four hours
       doing that? I’m sorry–

       [DEFENSE COUNSEL]: I’m going to make the same objection. I’m the one who
       chose to do that. They’re attacking him over what I did.

       THE COURT: Overruled.

       [PROSECUTOR]: I’m talking about everything that this guy said on the stand, right?
       Could he have said it in just a couple of minutes? Sorry. Please give me the death
       penalty. The end. But instead he spends almost four hours–

       [DEFENSE COUNSEL]: Renew the same objection, Your Honor.

       THE COURT: Overruled.

       Appellant contends that when the prosecutor accused Appellant of being a con man because

of the length of time he was on the stand, she was striking at appellant over the shoulders of defense

counsel because the attack was really a criticism of counsel’s decision to have Appellant testify for

that length of time. This is an inaccurate characterization of the prosecutor’s argument, which was

directed not at defense counsel, but at appellant himself. Mosley v. State, 983 S.W.2d 249, 259 (Tex.

Crim. App. 1998) (holding that “a prosecutor runs a risk of improperly striking at a 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”). Defense counsel failed to object the

first time the prosecutor argued that appellant was a con man who spent four hours on the stand. See
                                                                                                      38
TEX . R. APP . P. 33.1 (requiring a timely objection in order to preserve error); see also Lane v. State,

151 S.W.3d 188, 193 (Tex. Crim. App. 2004) (stating that error in the admission of evidence is cured

where the same evidence comes in elsewhere without objection). Even if we reach the merits of this

allegation, appellant’s claim fails because the prosecutor’s argument was a reasonable deduction

from the evidence and an answer to the argument of opposing counsel. Cannady, 11 S.W.3d at 213.

Point of error eight is overruled.

        In points of error 9A and 9B, appellant contends that the trial court improperly prevented him

from making his desired closing arguments to the jury. In point of error 9A, appellant claims that

he should have been able to argue “that the jury could consider as mitigating [his] claim that his

initial [sexual] encounter with the victim was consensual.” In point of error 9B, he claims that he

should have been able to argue that the jury was required to find that he was beyond redemption

before it could answer the mitigation special issue in the negative.

        At issue is the following exchange during closing argument.

        [DEFENSE COUNSEL]: When you have to answer the other question, the second
        question, what does it ask you to do? It asks you to take all the evidence into
        consideration, his character, his background, his moral culpability. What does that
        boil down to, Ladies and Gentlemen? You have to decide that this person is so far
        beyond redemption that there is no reason–

        [PROSECUTOR]: Objection, Your Honor. That is an improper statement of the
        law.

        [DEFENSE COUNSEL]: It is not, Your Honor. That is what they have to decide to
        do, in the opinion of the Defense.

        THE COURT: The question that they need to address, the issue, is in the Court’s
        charge, and that’s what they will be addressing, not this other one. So I’ll sustain the
        objection, ask you to move on.

                                                  ...
                                                                                    39
[DEFENSE COUNSEL]: All right. Is there a mitigating circumstance in this case,
Ladies and Gentlemen? I’m going to outline what I think are two different mitigating
circumstances in this offense. I’m going to ask you to take into consideration that if
you think that this started out as a consensual relationship, you should use that as a
mitigating circumstance.

[PROSECUTOR]: Objection, Your Honor.

[DEFENSE COUNSEL]: In this–

THE COURT: I’m going to sustain the objection. The Defendant has been found
guilty.

[DEFENSE COUNSEL]: Your Honor–

THE COURT: This Jury will not revisit whether it was consensual as you’re asking
them to. He has been convicted.

[DEFENSE COUNSEL]: No, I–

THE COURT: [Defense counsel], I will ask you not to argue with the Court.

[DEFENSE COUNSEL]: Your Honor, with all due respect, I am not arguing that
this was–that they didn’t find him guilty of it. I’m saying that if this started out as
a consensual relationship, and there’s a lot of evidence to prove that and show that,
I’m not saying that it ended that way. I’m saying it began– and if it began that way,
I think that’s a mitigating circumstance they can take into effect. I ask you to let me
argue that.

[PROSECUTOR]: Your Honor, this Jury–

THE COURT: The Defendant has been found guilty, [defense counsel].

[DEFENSE COUNSEL]: I’m not arguing that. I’m doing a very–

THE COURT: They can look at all of the circumstances surrounding the incident in
deciding whether or not there’s sufficient mitigation. Go ahead.

[DEFENSE COUNSEL]: Thank you. Ladies and Gentlemen, there is a lot of
evidence out there to show you that this started out as a consensual relationship.

[PROSECUTOR]: Objection, Your Honor.

[DEFENSE COUNSEL]: It didn’t end–
                                                                                            40
       [PROSECUTOR]: Your Honor, I’m going to object. He cannot tell this Jury what
       mitigation is. Only the Jury can decide, based on the evidence, whether or not
       something is mitigating, and then they have to balance it.

       [DEFENSE COUNSEL]: As a Defense attorney I can’t say as far as the Defense is
       concerned this is mitigating and you should take it into consideration?

       THE COURT: You may argue the evidence.

       [DEFENSE COUNSEL]: Okay. I’m arguing the evidence, Your Honor.

       Appellant asserts that the improper denial of his jury arguments amounted to a denial of his

right to counsel and prevented him from presenting a defense. When appellant testified before the

jury, he explained that he and Medina began having consensual sex, but he “snapped” when she

changed her mind and threatened to accuse him of rape if he told anyone about their sexual

encounter. Detective Albert Licon confirmed that appellant had told the same story when questioned

by the police. Defense counsel elicited testimony from Dr. Stern on cross-examination that she

could “[n]ot with a hundred percent certainty” determine whether or not the sex was consensual.

And although the trial court initially sustained the state’s objections to appellant’s consensual sex

as a mitigating circumstance argument, the record reflects that the trial court later overruled the

state’s objection to a similar argument.

       [DEFENSE COUNSEL]: Detective Licon. What did he say to you? This is not
       something that we suddenly made up to tell you. He told you that before he took
       Irving’s confession, that Irving told you this started out as a consensual relationship.
       This confession came into evidence and it was uncontroverted. The prosecution had
       the opportunity when he was on the stand to confront him about the truthfulness of
       this confession and they didn’t, Ladies and Gentlemen. It came in uncontroverted
       and there is no reason for you not to believe it. “We were near the portable buildings
       and it was dark. We began to have sex. She was a willing participant.” If you think
       that this started out as a consensual relationship because of the evidence that was
       presented to you, then you could use that as a mitigating factor.

       [PROSECUTOR]: Objection, Your Honor.
                                                                                         41
       THE COURT: Overruled.


Thus, appellant was ultimately allowed to make his desired argument to the jury. Point of error 9A

is overruled.

       We further hold that the trial court did not abuse its discretion in sustaining the state’s

objection to appellant’s argument that the jury was required to find that he was beyond redemption

before it could answer the mitigation special issue in the negative. This is not what Article 37.071

requires. The statute instead requires that the jury answer a specific question.

       Whether, taking into consideration all of the evidence, including the circumstances
       of the offense, the defendant’s character and background, and the personal moral
       culpability of the defendant, there is a sufficient mitigating circumstance or
       circumstances to warrant that a sentence of life imprisonment without parole rather
       than a death sentence be imposed.

Art. 37.071, § 2(e)(1). Although we have held that improper denial of a jury argument may

constitute a denial of the right to counsel, this holding assumes that the jury argument is one the

defendant is entitled to make. McGee v. State, 774 S.W.2d 229, 239 (Tex. Crim. App. 1989).

Appellant was not entitled to argue contrary to Article 37.071. Point of error 9B is overruled.

       We affirm the judgment of the trial court.


Delivered: September 29, 2010
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