           IN THE COURT OF CRIMINAL APPEALS
                       OF TEXAS
                                      No. AP-75,603



                        TILON LASHON CARTER, Appellant

                                             v.

                                THE STATE OF TEXAS



                ON DIRECT APPEAL FROM CAUSE NO. 94-9973D
                      IN THE 371ST DISTRICT COURT
                           TARRANT COUNTY



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


       Appellant was convicted in November 2006 of capital murder. T EX. P ENAL C ODE

A NN. § 19.03(a)(2). Based on the jury’s answers to the special issues set forth in the Texas

Code of Criminal Procedure, Article 37.071, sections 2(b) and 2(e), and a mental-retardation
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special issue, the trial judge sentenced appellant to death. Art. 37.071, § 2(g).1 Direct appeal

to this Court is automatic. Art. 37.071, § 2(h). After reviewing appellant’s ten points of

error, we find them to be without merit. Consequently, we affirm the trial court’s judgment

and sentence of death.

                                  STATEMENT OF FACTS

       Appellant was charged with intentionally causing the death of James Eldon Tomlin,

“by restraining him and causing him to lie face down and by smothering him by exerting

pressure on his head or face with an object unknown to the grand jury,” during the course of

robbery. Appellant gave two statements to Detective Cheryl Johnson, who read them to the

jury. In appellant’s first statement, he told police that he and his girlfriend, Leketha Allen,

had been talking about needing money when Leketha’s mother suggested that they rob

Tomlin, an elderly man who lived alone and kept large amounts of cash in his house.

Leketha’s mother drove them to Mims Street and pointed out Tomlin’s house. The next day,

appellant and Leketha drove back to Tomlin’s house. Appellant waited in the car while

Leketha, who was acquainted with Tomlin, knocked on the back door. After Tomlin opened

the door, appellant walked up and told Leketha to get back in the car. Tomlin swung a

hammer at appellant, but he dodged it and ordered Tomlin to lie down. Tomlin complied.

Appellant started looking around the house. Leketha then walked into the house, and they

both searched it. She told appellant that Tomlin was going to get up and move, so appellant

       1
        Unless otherwise indicated, all references to Articles refer to the Code of Criminal
Procedure.
                                                                                    Carter - 3

bound Tomlin’s hands with duct tape. He used a sock to hold the tape, and he tore the tape

with his teeth. Leketha took two jars of coins from the kitchen, and appellant took an old,

long gun from the bedroom. Leketha went back to the car. Appellant “came out last,” and

they drove back to Leketha’s mother’s house.

       In his second statement, appellant indicated that he had borrowed a gun in preparation

for the robbery and that he was holding it when he entered Tomlin’s house. He stated that

after Tomlin swung the hammer at him, he grabbed Tomlin’s arm and made him sit down on

the floor. When Leketha walked into the house, appellant gave her the gun to hold while he

bound Tomlin’s hands and feet with duct tape. After they finished searching the house and

Leketha went back to the car, appellant watched Tomlin for a minute to make sure he was

all right. Tomlin was sitting up with his legs straight out in front of him. Appellant told

Tomlin they were leaving, and Tomlin said, “Okay.”

       Tomlin’s daughter and responding law-enforcement officers testified that Tomlin’s

body was found lying face down on the floor just inside the back door, with his feet blocking

the doorway. His hands were bound behind his back by duct tape that was wound around his

wrists. Duct tape was also wound around his ankles. There was tape residue on his shirt and

socks that was consistent with him having moved his arms and legs after they had been

bound. His face was turned to the side. A piece of duct tape, partially folded over, was stuck

to the side of his mouth area. There were two bloody injuries on the top and the left side of

his head. Tomlin’s glasses and a hammer with blood on the handle were found on the floor
                                                                                      Carter - 4

near his body.

       A medical examiner testified that Tomlin’s flesh at both his wrists and ankles had

been compressed and his skin had been damaged by duct tape. The lacerations on Tomlin’s

face and head were the result of blunt-force trauma that might have caused a temporary loss

of consciousness but no significant injury to the skull or brain. The inside of Tomlin’s upper

lip had been pressed hard against his teeth, resulting in a hemorrhaging injury. The nature

of this injury indicated that it was the result of applying profound and sustained pressure

against Tomlin’s mouth for at least thirty seconds while he was still alive. The injury was

typical of smothering, and it would not have resulted from the impact of a fall or from the

weight of Tomlin’s head as he lay on the floor.

       The medical examiner further testified that, given the position of Tomlin’s body when

it was found and the evidence he had seen, Tomlin was bound while lying face down on the

floor, and it would have been impossible for him to sit up and talk to anybody. The medical

examiner acknowledged that most people probably would not understand the risk of death

involved in binding someone in that position. However, he emphasized that he could not

exclude smothering because the markings he had observed were “very consistent” with

smothering. He ruled that the cause of death was “smothering with positional asphyxia.”

       Appellant’s ex-girlfriend testified that appellant told her that he and Leketha had

killed an old white man during a robbery at a house on Mims Street. Appellant’s former cell-

mate testified that appellant had tried to intimidate him by boasting that he and his girlfriend
                                                                                          Carter - 5

had killed an old man during a robbery.

                 DISJUNCTIVE LANGUAGE IN JURY INSTRUCTION

       In appellant’s first point of error, he claims that the trial court erred in providing a jury

instruction at the guilt phase that permitted the jury to convict appellant of capital murder if

it determined that appellant intentionally caused Tomlin’s death “by restraining him or

causing him to lie face down or by smothering him by exerting pressure on his head or face,”

in the course of committing or attempting to commit a robbery, when the indictment had

charged the acts of “restraining him” and “causing him to lie face down” in the conjunctive.

       Appellant acknowledges the general rule that the jury properly may be charged in the

disjunctive with multiple means of committing the offense when the indictment alleged them

in the conjunctive. See, e.g., Martinez v. State, 129 S.W.3d 101, 103 (Tex. Crim. App.

2004). He argues, however, that this case presents an exception to the rule because the acts

of restraining Tomlin and causing him to lie face down were necessary parts of a single

means of causing death by positional asphyxiation. Appellant urges that charging these acts

in the disjunctive improperly allowed a conviction if the jury found that appellant had just

restrained Tomlin, without requiring the jury to find that appellant had also caused Tomlin

to be in the prone position that caused his death from positional asphyxiation. He reasons

that the disjunctive language allowed conviction under a theory not contained in the

indictment.

       We are not persuaded that charging the acts in the disjunctive impermissibly allowed
                                                                                      Carter - 6

conviction under a theory not contained in the indictment. See, e.g., Zanghetti v. State, 618

S.W.2d 383, 387 (Tex. Crim. App. 1981) (when indictment alleged appellant committed

murder by striking victim in the head with a glass bottle, a piece of wood, and by means

unknown, jury was properly instructed in the disjunctive); Medina v. State, 49 S.W. 380, 380-

81 (Tex. Crim. App. 1899) (indictment charged that appellant caused victim’s death by

beating, starving, and hanging with a rope; proof of any one cause would be sufficient, or,

“if all were proved, and together they co-operated to produce the death,” that would also be

sufficient). Finally, even if we were to assume error, the record does not show egregious

harm. See Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985).

       Appellant also asserts that there was no evidence to support a theory that he caused

Tomlin’s death by restraint alone. “It is settled that ‘when a jury returns a guilty verdict on

an indictment charging several acts in the conjunctive, . . . the verdict stands if the evidence

is sufficient with respect to any of the acts charged.’” Kitchens v. State, 823 S.W.2d 256, 259

(Tex. Crim. App. 1991) (quoting Turner v. United States, 396 U.S. 398, 420 (1970)).

Appellant does not complain that there was insufficient evidence that he intentionally caused

Tomlin’s death by positional asphyxiation or smothering, and the record shows that the

evidence presented at trial was sufficient. See Jackson v. Virginia, 443 U.S. 307, 319 (1979).

       The jury was charged that it could not find appellant guilty of capital murder unless

it found beyond a reasonable doubt that he had intentionally caused Tomlin’s death.

Charging the acts in the disjunctive was not error, much less egregious error. The evidence
                                                                                     Carter - 7

was sufficient to support a finding of guilt under one or more of the means alleged, and the

jury properly returned a general verdict. Point of error one is overruled.

                 SPECIAL ISSUES NOT CHARGED IN INDICTMENT

       In point of error two, appellant claims that the trial court erred in overruling his

motions to preclude the death penalty as a sentencing option and declare Article 37.071

unconstitutional on the ground that Texas law allows for a death sentence without grand-jury

review of the special issues. He reasons that the special issues are “aggravated factors” that,

as elements of the offense, must be pleaded in the indictment and proven beyond a

reasonable doubt. He also asserts that the current statutory scheme violates due process

because it allows the State to bypass the grand jury and arbitrarily determine who is “death

worthy.”

       We have rejected these arguments in previous cases. Joubert v. State, 235 S.W.3d

729, 731-32 (Tex. Crim. App. 2007), cert. denied, 128 S. Ct. 1446 (2008); Renteria v. State,

206 S.W.3d 689, 709 (Tex. Crim. App. 2006). We are not persuaded to reconsider them

here. Point of error two is overruled.

                MOTION TO SUPPRESS APPELLANT’S STATEMENT

       In point of error three, appellant claims that the trial court erred in overruling his

motion to suppress the second written statement obtained by police because that statement

was given after the appointment of counsel, and the State did not meet its burden to show
                                                                                         Carter - 8

appellant had voluntarily waived the presence of counsel.2 He argues that, because he had

requested counsel at the arraignment, the State’s showing that he later re-initiated

communication with Detective Johnson, and that Detective Johnson read him his Miranda

rights and obtained an acknowledgment and waiver, was insufficient to establish a voluntary

waiver of the right to counsel.3

       The grounds that appellant raised in his motions to suppress do not comport with his

ground of error on appeal. In his pre-trial motions to suppress, appellant asserted that his

statements to police were the products of an illegal arrest and/or an illegal search and seizure.

The testimony and argument at the pre-trial hearing on these motions were addressed to the

claims raised in the motions and to the voluntariness of the statements. Counsel did not

argue that appellant’s right to counsel had been violated. In closing, he objected that the

statements were not voluntary. The court found the statements were voluntary and denied

the motions to suppress.

       After his motions to suppress had been denied and during the voir dire of Detective

Johnson at trial, counsel objected for the first time that appellant’s second statement was

inadmissible because he had invoked his right to counsel by signing a request for the

appointment of counsel at the arraignment. The prosecutor responded that appellant had re-




       2
         The record reflects that two motions to suppress were filed, but appellant refers to only
one motion.
       3
           Miranda v. Arizona, 384 U.S. 436 (1966).
                                                                                         Carter - 9

initiated communication with Detective Johnson.4 The trial court admitted the second

statement, finding that appellant had knowingly, intelligently, and voluntarily waived his

right to counsel and his right to remain silent.

       Even assuming arguendo that appellant preserved error, his claim fails on the merits.

Appellant validly waived his right to counsel when he re-initiated communication with

Detective Johnson. See Cross v. State, 144 S.W.3d 521, 526-527 (Tex. Crim. App. 2004);

Fuller v. State, 829 S.W.2d 191, 205 (Tex. Crim. App. 1992). The trial court did not err in

admitting appellant’s second statement. Point of error three is overruled.

                                          10-12 RULE

       In points of error four and seven, appellant claims that the trial court erred in

overruling appellant’s “federal constitution based objection to the so called ‘10-12’ Rule,”

and he further claims the trial court erred in failing to instruct the jury that if a single juror

“holds out” for life, the appellant would receive a sentence of life imprisonment by operation

of law. He asserts that the 10-12 Rule violates the Fifth, Sixth, Eighth, and Fourteenth

Amendments to the United States Constitution because it invades the province of the jury and

unduly pressures jurors to change their votes in order to reach a result. We have rejected

these arguments in previous cases. See, e.g., Druery v. State, 225 S.W.3d 491, 509 (Tex.

Crim. App. 2007), cert. denied, 128 S.Ct. 627 (2007); Prystash v. State, 3 S.W.3d 522, 536

(Tex. Crim. App. 1999). We are not persuaded to revisit them here. Points of error four and

       4
          Appellant did not argue before the trial court, and he does not argue now, that he did
not in fact re-initiate communication with Detective Johnson.
                                                                                        Carter - 10

seven are overruled.

                              MITIGATION SPECIAL ISSUE

       In point of error five, appellant claims that the trial court erred in overruling defense

counsel’s objection to the submission of the mitigation special issue on grounds that it failed

to place the burden of proof on the State, in violation of the Fifth and Sixth Amendments to

the United States Constitution. He asserts that failing to instruct the jury that the State has

the burden of proof deprived him of the right to trial by jury and the right to have all elements

proven beyond a reasonable doubt. We have rejected this argument before. Ladd v. State,

3 S.W.3d 547, 573 (Tex. Crim. App. 1999). Point of error five is overruled.

       In point of error six, appellant claims that the trial court erred in overruling appellant’s

objection to the failure of the mitigation instruction to require the jurors to find that the

aggravating circumstances outweighed the mitigating circumstances before returning a

verdict requiring the imposition of death. He asserts that the jury should have been instructed

that, if it had a reasonable doubt as to whether the aggravating factors outweighed the

mitigating factors, then it should have answered the mitigation special issue in the

affirmative. He acknowledges that we have rejected similar arguments in previous cases.

See, e.g., Hankins v. State, 132 S.W.3d 380 (Tex. Crim. App. 2004); Blue v. State, 125

S.W.3d 491 (Tex. Crim. App. 2003). We are not persuaded to reconsider the issue here.

Point of error six is overruled.

       In point of error ten, appellant claims that the mitigation special issue provided by
                                                                                   Carter - 11

Article 37.071 is unconstitutionally vague and indefinite, in violation of appellant’s rights

under the Fourteenth Amendment of the United States Constitution, and Article I, section 19,

of the Texas Constitution. He admits that we have rejected similar arguments before. See,

e.g., Feldman v. State, 71 S.W.3d 738, 757 (Tex. Crim. App. 2002); Ladd, 3 S.W.3d at 573.

He invites the Court to revisit the issue because the record in this case “clearly rebuts” the

presumption that jurors understand the terms used in the special issues and “reflects the

public’s confusion” on the question of what properly constitutes mitigating evidence in a

capital case. Appellant has not persuaded us to revisit this issue. Point of error ten is

overruled.

                                EXECUTION PROTOCOL

       In points of error eight and nine, appellant claims that the use of pancuronium bromide

in the lethal-injection protocol violates the Eighth Amendment of the United States

Constitution and Article I, section 13, of the Texas Constitution. He suggests that, because

Texas has specifically banned the use of pancuronium bromide in the euthanization of

animals on humanitarian grounds, the state constitutional protection may be greater than the

federal constitutional protection.

       Appellant’s execution is not imminent; therefore, the method in which the lethal

injection is currently administered is not determinative of the way it will be administered at

the moment of appellant’s execution. These claims are not ripe for review. See Gallo v.

State, 239 S.W.3d 757, 780 (Tex. Crim. App. 2007). Points of error eight and nine are
                                                   Carter - 12

overruled.

      We affirm the judgment of the trial court.




DELIVERED JANUARY 14, 2009

DO NOT PUBLISH
