




Death Opinion







 





IN THE COURT OF CRIMINAL APPEALS

OF TEXAS





AP-75,589


JAMES  EUGENE BIGBY, Appellant


v.


THE STATE OF TEXAS




ON DIRECT APPEAL FROM
CAUSE NO.  0329813D IN THE 3RD CRIMINAL JUDICIAL DISTRICT COURT

TARRANT COUNTY



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

O P I N I O N



 Appellant was convicted in March of 1991 of capital murder. (1)   The evidence showed
that he had killed three friends (plus the infant son of one of them) because he believed that
they were conspiring with Frito-Lay to avoid paying him for a workers' compensation claim. 
The jury answered the special issues affirmatively, and the trial court sentenced appellant to
death. (2)   Appellant's conviction and sentence were affirmed on direct appeal, (3) but his death
sentence was later vacated by the United States Court of Appeals for the Fifth Circuit. (4) 
Appellant was retried on punishment and again sentenced to death.  This appeal follows. 
After reviewing appellant's fifteen points of error, we find them to be without merit. 
Consequently, we affirm the trial court's judgment and sentence of death.
	In point of error one, appellant claims the trial court erred by overruling his challenge
for cause against venireperson Karen Seagroves.  He contends that Ms. Seagroves was
challengeable for cause because (1) she would vote to assess the death penalty if she believed
appellant acted deliberately, and (2) she did not believe there would be any mitigating
evidence that would justify a "yes" answer to the mitigation issue once capital murder was
proven.
	During initial voir dire by the State, the prosecutor explained to Ms. Seagroves that
the proceeding would be for punishment only, that appellant had already been convicted of
capital murder, and that whether the death penalty would be imposed would be based on the
evidence presented.  Ms. Seagroves indicated that she understood, and agreed that she could
follow the law and answer the questions.  Ms. Seagroves continued to agree that she
understood and could follow the law as the prosecutor explained the details and requirements
for each of the special issues.  She agreed that she would not automatically answer the
deliberateness issue "yes," but would base the answer on the evidence presented.  Ms.
Seagroves maintained that she would also require the State to meet its burden on the future
dangerousness issue.  Finally, she indicated that she (1) understood the mitigation issue, (2)
would follow the law and the instructions, and (3) would base her answer on the evidence. 
	Ms. Seagroves' position became less clear during defense counsel's voir dire. 
Appellant points to portions of Ms. Seagroves' discussion indicating that she would impose
the death penalty once she determined that the accused had murdered two people deliberately
and that he would be a future danger, regardless of what the mitigation evidence showed. 
When defense counsel challenged her, the trial judge said that he thought  that Ms. Seagroves
became somewhat confused, and he gave the State the opportunity to question her again. 
When re-questioned by the prosecutor, Ms. Seagroves agreed that "nothing is automatic,"
and that the jury's answers had to be based on the evidence presented.  She agreed that she
would require the State to prove the first two issues, would keep an open mind on the
mitigation issue, and would not decide it until after hearing all of the evidence.  She also
stated that she was confused during voir dire by defense counsel when she said that she
would automatically disregard mitigating evidence.  Despite some of her statements made
during questioning by defense counsel, Ms. Seagroves' voir dire as a whole reflects that she
would be fair, follow the law and the instructions, keep an open mind, and answer the issues
based on the evidence presented.  The trial court did not abuse its discretion in denying
appellant's challenge for cause. (5)  Point of error one is overruled.
	In points of error two and three, appellant claims that the trial court erred by denying
his challenges for cause against venirepersons Randolph Myers and George Davisson on the
ground that they would each consider the cost of prison housing and overcrowding for
someone in prison for life as valid factors in answering the special issues.  
	Appellant points to the following portion of Mr. Myers' voir dire:
	[Defense counsel].  Well, that brings to mind - and if you feel this way, that's
fine.  If you don't that's fine.

		Some people say, you know, because life in prison and the death
penalty are the two options in a capital murder case, just because of my overall
view of it, I am going to . . . consider[] the financial costs of housing this
individual if we reach a life sentence because I know it's going to cost a
considerable amount of money, and I'm just going to - as a citizen, I'm going
to take that into account in answering these questions.  Do you feel that way?

	[Myers].  That would - again, that's my belief, and - and, you know, again,
with no - nothing to - to process, I would say that would be a correct
statement. . . . If there's circumstances there that I'm not aware of, again, I'm
going to base it on the data I receive. . . . and I'm not saying by any means that
there shouldn't be a life sentence even available, but I'm saying, that, you
know, in a lot of instances I think we've gone - we've got too many of those,
and therefore we've got overpopulated prisons and an issue that we've got to
deal with, and it may not be the death penalty.  It may be something else, but
we've got an issue there.  That's what I was trying to say - 

	Q.  Well, I don't - I didn't think you're telling me you would vote the death
penalty strictly only because it costs money, more money to house people for
life, but I think what you probably said here, it would be a factor in your
decision-making in answering these questions.

	A.  Absolutely.

Appellant challenged Mr. Myers for cause on the ground that he would factor into his
answers on the special issues the cost of the prison system and housing inmates.  The
prosecutor argued that Mr. Myers had never been told that consideration of those costs was
improper, and, therefore, he could not be challenged for cause on those grounds.  The trial
court overruled appellant's challenge for cause.
	Appellant points to the following portion of Mr. Davisson's voir dire as evidence that
he was unconstitutionally biased:
	[Defense counsel].  Because one - one reason I ask you about this, you said
someone has to support that life, and a lot of folks feel this way.  They say, you
know, life in the penitentiary, that costs money.

	[Davisson].  It does.

	Q.  And some people have even seen stories or articles on what it costs to
house someone in prison.

	A.  Something like $32,000 a year.  I mean, I can't lie to you, sometimes I
resent that fact.

	Q.  Well, I mean, that's fine because you're a taxpayer and - and that's money
- money you contribute with your check, you know, every time you get paid
and so forth.

		Some people feel this way.  They say, well, look, because it does cost,
it's not a cheap proposition to confine somebody in prison for life, that they
would factor into their judgment in answering these questions - 

	A.  But the payoff is, is that sometimes it's better to pay to keep that person out
of society than it is to. . . give them an early release.

	Q.  Okay.  All right.

		I just want to see if you share this view because we have had some
people tell us, well, look because of my dislike of the cost of this life-in-prison
deal, because it is so expensive and I've got to help foot the bill, that I am
going to factor that in the answers of these questions that we've been going
over at least some.

	A.  Okay.

	Q.  Do you feel that way?

	A.  It might be factored in some.

	Q.  Okay.  Because the - the law expects jurors not to do that.

	A.  Right.  I know.

	Q.  It says, we don't want to decide whether someone lives or dies based on a
dollar-and-cents question.  We don't want jurors doing that.  We want them to
answer these questions based on evidence and not factor in, well, if we go
ahead and execute him, we don't have to pay all this money.

	A.  Right.

	Q.  Some people say, I'm not sure I could do that.  I'd probably factor it in
some.

		Do you feel that way?

	A.  Perhaps.  I mean, you asked for honesty.

	Q.  No - and that's exactly what I want you to do.  I think you held your hand
up about an inch indicating - 

	A.  It's like I said, I mean, you know, you have to make investments to
mitigate risks every day.  I mean, that's why some of us have alarms on our
homes, and, you know, putting someone in prison for life, that would be an
investment in mitigating risk for their future actions in society.

	Q.  I think you held up your fingers with an inch gap.  Was that indicating that
you would factor it into the answers of the questions, but it would be a small
- 

	A.  Yes.

	Q.  - one-inch of whatever length we're talking about?

	A.  Right.

The trial court overruled appellant's challenge against Mr. Davisson for cause, stating that
although Mr. Davisson indicated that the cost issue "might come into play," he testified that
he could base his answers on the evidence.
	"A defendant may properly challenge for cause a prospective juror who has a bias or
prejudice against any phase of the law upon which he is entitled to rely." (6)  When reviewing
a grant or denial of a challenge for cause, we look at the entire record to determine if there
is sufficient evidence to support the ruling. (7)  "The test is whether the bias or prejudice would
substantially impair the prospective juror's ability to carry out his oath and instructions in
accordance with the law." (8)  Before a venireperson can be excused for cause on this basis, the
law must be explained to him and he must be asked whether he could follow that law
regardless of his personal views. (9)  The proponent of a challenge for cause only meets his
burden of establishing that the challenge is proper only if he shows that the venireperson
understood the requirements of the law and could not overcome his prejudice well enough
to follow it. (10) 
	The trial court did not abuse its discretion in overruling the challenge to Mr. Myers
because the law was never explained to him and he was never asked whether he could put
aside his personal views despite the law.  And although Mr. Davisson was told that "the law
expects jurors not to" consider costs associated with housing inmates, he was never asked
whether he would be able to put aside his personal views and follow that law.  Viewing Mr.
Davisson's entire voir dire and his demeanor in answering the questions, the trial court
determined that Mr. Davisson would not be "substantially impaired" in his ability to follow
the instructions and answer the issues based solely on the evidence presented.  On this record,
appellant has not met his burden of showing that Mr. Davisson would not be able to
overcome his prejudice and follow the law.  Points of error two and three are overruled.
	In his fourth point of error, appellant claims that the trial court erred in overruling his
motion to quash paragraphs one, two, and three of the indictment.  We conclude that the trial
court had no authority to consider a motion to quash the indictment during a punishment
retrial.  When an appellate court remands a case to the trial court for a retrial on punishment
only, the appellate court has affirmed the guilt portion of the trial; thus, the trial court no
longer has any authority over that guilt portion of the trial and no authority to consider any
claim that relates to that portion of the trial. (11)  The Fifth Circuit affirmed appellant's
conviction and vacated and remanded only on his sentence. (12)  The trial court's authority was
limited to that granted to it on remand.  Issues relating to the guilt phase of trial were not
before the trial court on remand for a punishment retrial.  Point of error four is overruled.
	In point of error five, appellant claims that the trial court erred in sustaining the State's
hearsay and relevance objections to testimony relating to information contained on a police
"wanted person" data form indicating that appellant was believed to have a history of
psychological disorders.  A general understanding of the facts of the offense is necessary for
analysis of this issue.
	In 1987, appellant filed a workers' compensation lawsuit against Frito-Lay.  Appellant
believed Frito-Lay and its insurance company were conspiring against him to avoid paying
his claim.  He also believed that the insurance company and others, including friends, were
conspiring to kill him.  Around 6:00 p.m. on the evening of December 23, 1987, appellant
went to the home of his long-time friend, Michael Trekell, who was there caring for his
infant son, Jayson.  Appellant and Michael watched television as Michael began preparing
steaks that appellant had brought over.  As Michael sat at the kitchen table, appellant shot
him in the head.  Appellant attempted to suffocate Jayson with cellophane, but, when that did
not work quickly enough,  he drowned the infant by forcing him face-down in a sink filled
with water.  Jayson's mother, Grace Kehler, returned home from work in the early morning
hours to discover the bodies of both Michael and Jayson.  Grace told police she remembered
appellant once talking about killing a lot of people and going out in a blaze of glory.  Grace
also testified that she knew appellant had mental problems and that he had been hospitalized
in a mental hospital more than once.
	After leaving Michael's home, appellant went to the home of his friend Wesley Crane
at about 11:45 p.m.  The two sat in the kitchen and talked.  Around 1:15 a.m., appellant told
Wesley he thought someone was following him and asked Wesley to go on a drive with him
to see who it was.  During the drive, appellant told Wesley to pull over and then shot him in
the head.  Appellant left Wesley on the road and drove Wesley's truck to the home of another
 friend, Frank Johnson, around 3:20 a.m.  When Frank Johnson answered the door, appellant
shot him several times.  Wesley Crane and Frank Johnson both died as a result of the gunshot
wounds.
	Police put out a broadcast for Wesley Crane's truck, and an extensive search began
for appellant.  He was found at a motel in Fort Worth on December 26, and a SWAT team
and other officers surrounded the motel.  Appellant eventually surrendered without incident
and admitted to the murders.  He stated that he killed his three friends because he thought
they had conspired with Frito-Lay against him to undermine his workers' compensation case. 
He said that he did not know why he killed Jayson.
	Detective Curtis Brannan testified for the State that he was involved in the "manhunt"
for appellant.  He testified about the bulletins that were dispatched, describing appellant as
potentially armed and dangerous.  On cross-examination, appellant attempted to offer
evidence that the "wanted person" data form regarding appellant also indicated that appellant
was "thought to have [a] history of psychological disorders."  Appellant offered the "wanted
person" data form into evidence and argued that it was admissible because it was not offered
for its truth and that it was also admissible as a business record or report under Rule of
Evidence 803(8)(c).  The State's hearsay objection was sustained.
	Appellant now contends the "wanted person" data form was not inadmissible hearsay
because it was not offered for the truth asserted, but was offered to establish a more complete
picture of the context of the manhunt following the murders.  Appellant argues that this was
particularly important in light of the other notations on the form that appellant was "armed
with unknown weapons" and "extremely dangerous."  Appellant argues that this error was
not harmless because, without this evidence, the jurors had an erroneous view of the
manhunt, and it is possible "that their erroneous view of the manhunt led them to believe that
police officials considered appellant dangerous with no mitigating circumstances to temper
that danger, and that they too should adopt that view."
	We need not decide whether the exclusion of this evidence was error because any
error in its exclusion was clearly harmless.  Nonconstitutional error that does not affect a
substantial right must be disregarded. (13)   An error does not affect a substantial right if the
reviewing court "has fair assurance that the error did not influence the jury, or had but a
slight effect." (14)  The jury at the punishment phase is charged with considering "all evidence
admitted at the guilt or innocence stage and the punishment stage, including evidence of the
defendant's background or character or the circumstances of the offense that militates for or
mitigates against the imposition of the death penalty."  
	The jury was presented with evidence of appellant's paranoia and delusions, his
hospitalizations for psychiatric treatment, his bizarre, violent, and out-of-control behavior,
the circumstances surrounding the murders, various diagnoses of appellant for such mental
illnesses as paranoid schizophrenia, anti-social personality, and other personality disorders,
and appellant's drug use.  Exclusion of the "wanted person" data form because it stated that
appellant was "thought to have [a] history of psychological disorders" was insignificant in
view of the other evidence before the jury of appellant's psychological instability.  Moreover,
the mindset of law enforcement during the manhunt had only tenuous, if any, relevance to
the special issues.  The possibility that the information on the data form might have caused
the police to view appellant as somehow less dangerous at the time of the manhunt is purely
speculative and of little relevance to the jury's own determination of the punishment issues. 
Point of error five is overruled.
	In his sixth point of error, appellant claims that the trial court erred in refusing his
requested jury instruction requiring the jury to find that the aggravating circumstances
outweighed the mitigating circumstances before returning a verdict requiring the imposition
of the death penalty.  Appellant contends his position is supported by Apprendi v. New
Jersey, (15) Ring v. Arizona, (16) and Blakeley v. Washington, (17) which he claims require that the
burden be placed on the State to prove a negative answer to the mitigation issue beyond a
reasonable doubt.  Appellant reasons that, because he could not have been assessed the death
penalty without a negative finding on the third issue, the absence of mitigating circumstances
is an element that must be proven.  By not requiring proof beyond a reasonable doubt, he
contends, the scheme violates the Apprendi/Ring line of cases and the Sixth and Fourteenth
Amendments.  We have repeatedly rejected assertions that the Apprendi/Ring cases compel
application of a burden of proof on the mitigation issue. (18)  Point of error six is overruled.
	In points of error seven, eight, and nine, appellant claims that the trial court's
submission of the mitigation issue and the rejection of his proposed mitigation issue violated
the ex post facto prohibitions of the federal and state constitutions.  When appellant
committed this crime in 1987 (and at the time of his first punishment trial in March of 1991),
there was no statutory mitigation issue.  The statutory mitigation issue became law on
September 1, 1991.  The Fifth Circuit held that the jury instructions given at appellant's first
punishment trial failed to allow jurors to give effect to appellant's mitigating evidence. (19)  At
the retrial on punishment, Article 37.0711 required submission of the statutory mitigation
issue for offenses committed before September 1, 1991. (20)  Appellant objected to the
instructions as violating the prohibition against ex post facto laws and requested submission
of his own proposed instructions which were based on the statutory mitigation factors
applicable in federal death-penalty cases. (21)  The trial court rejected appellant's objection and
request and instructed the jury in accordance with Article 37.0711.  Appellant contends that
the application of Article 37.0711 violated ex post facto laws by altering the legal rules of
evidence so as to receive less or different evidence than the law required at the time of the
offense in order to convict (or here, to put to death) the offender.
	In assessing an ex post facto claim, the relevant comparison is between the law as it
existed at the time of the offense and the law that was applied at trial.
	The instructions given under Article 37.0711 did not violate the prohibition against
ex post facto laws.  In 1987, when the offense was committed, there was no statutory
mitigation issue.  The death-penalty scheme as it existed at that time, with no statutory
mitigation issue, was held by the United States Supreme Court to be constitutionally
inadequate to allow the jury to consider and give effect to mitigating evidence. (22)   The
scheme that applied at appellant's punishment retrial has been held to provide the jury with
an adequate vehicle to consider and give effect to mitigating evidence. (23)  Thus, as the State
points out in its brief, the statutory mitigation issue provided appellant with more, not less,
protection than he would receive under the law as it existed at the time of the offense.  The
procedure leading to the jury's punishment verdict in appellant's retrial was constitutional,
while the procedure in place at the time of the offense was not.  "It is axiomatic that for a law
to be ex post facto it must be more onerous than the prior law." (24)  Because appellant was
given greater procedural protections than he had under the previous law, there is no ex post
facto violation under either constitution. (25)  Appellant's contention that the Texas
Constitution's ex post facto provision provides greater protection than its federal counterpart
is based on its language that it applies to all "retroactive laws."  Even if we were to recognize
that our state constitutional provision provides greater protection in some circumstances, we
decline to consider the issue in this context where appellant has been afforded greater
constitutional protections under the current law than he was afforded under the previous
provision.  Points of error seven, eight, and nine are overruled.
	In point of error ten, appellant claims that the trial court violated his due process rights
by refusing his requested jury instruction which would require the jury to assume that, if
sentenced to life imprisonment, appellant "will spend the rest of his natural life in prison." 
The trial court instructed the jury that it was "not to consider or discuss any possible action
of the Board of Pardons and Paroles or of the Governor, or how long the Defendant would
be required to serve a sentence of life imprisonment."  Relying on Simmons v. South
Carolina, (26) appellant argues that the instruction given could have led the jury erroneously to
believe that if it assessed a life sentence, "parole might operate to reduce the term of his
confinement to an undetermined length of time at the whim of the Board of Pardons and
Paroles."  We have repeatedly rejected claims that Simmons compels an instruction informing
the jury of the effect of the parole laws on a life sentence in which there is a possibility of
parole. (27)   Point of error ten is overruled.
	In point of error eleven, appellant claims that the mitigation issue is unconstitutional
because it fails to place the burden of proof on the State regarding the aggravating evidence. 
Appellant contends that the defense has an implied burden to produce sufficient mitigation
evidence to warrant a sentence of life imprisonment.  Appellant also complains that the
statute places unfair, undue, and unconstitutional emphasis on the finding of the defendant's
"moral culpability" which appellant says was already found by the jury at guilt.  Appellant
concedes the existence of adverse authority on this matter, but contends that the issues merit
the Court's reconsideration.  We are not persuaded to reconsider our precedent. (28)  Point of
error eleven is overruled.
	In point of error twelve, appellant claims that the trial court erred in overruling his
motion to preclude the imposition of the death penalty on the ground that the indictment
failed to contain allegations regarding the punishment special issues.  Appellant concedes
authority to the contrary but urges reconsideration.  We decline to reconsider this precedent. (29) 
Point of error twelve is overruled.
	In his thirteenth point of error, appellant claims that the trial court erred in failing to
instruct jurors, as appellant requested, not to consider any answers and corresponding
sentence by a previous jury in considering and answering the special issues in the punishment
retrial.  However, the trial court included an instruction in the jury charge identical to the one
requested by appellant.  Point of error thirteen is overruled.
	In point of error fourteen, appellant claims that the trial court erred by refusing to
instruct the jury that if a single juror holds out for a life sentence, the sentence would be life
imprisonment by operation of law.  Appellant contends the Texas scheme violates the
principles underlying Caldwell v. Mississippi (30) and Mills v. Maryland. (31)  This issue has been
decided adversely to appellant. (32)  Point of error fourteen is overruled.
	In his fifteenth point of error, appellant contends that the use of pancuronium bromide
in the chemical mix used for executions in Texas violates the Eighth Amendment to the
United States Constitution.  Appellant's execution is not imminent; therefore, the method in
which it is currently carried out is not determinative of the way it will be administered at the
time of appellant's execution. (33)   Appellant's claim is not ripe for review.  Point of error
fifteen is overruled.
	The judgment of the trial court is affirmed.
Delivered: October 8, 2008

Do not publish.
1.  Tex. Penal Code Ann. § 19.03(a)(6) (West 1990).
2.   Tex. Code Crim. Proc. Ann. art. 37.071(b) (West 1990). Unless otherwise indicated, all
references to Articles refer to the Texas Code of Criminal Procedure.
3.  Bigby v. State, 892 S.W.2d 864 (Tex. Crim. App. 1994). 
4.  Bigby v. Dretke, 402 F.3d 551 (5th Cir. 2005) (reversing death sentence based upon Penry
claim that punishment-phase jury instructions prevented the jury from acting upon his mitigating
evidence and remanding for a new trial on punishment).
5.  See Russeau v. State, 171 S.W.3d 871, 879-80 (Tex. Crim. App. 2005) (giving deference
to trial court when prospective juror's answers are vacillating, unclear, or contradictory).
6.  Sells v. State, 121 S.W.3d 748, 758-59 (Tex. Crim. App. 2003).
7.  Id. at 759. 
8.  Id.
9.  Id.
10.  Id.
11.  Lopez v. State, 18 S.W.3d 637, 639-40 (Tex. Crim. App. 2000).
12.  Bigby, 402 F.3d at 575.
13.  Tex. R. App. P. 44.2(b).
14.  Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998). 
15.  530 U.S. 466 (2000).
16.  536 U.S. 584 (2002).
17.  542 U.S. 296 (2004).
18.  Roberts v. State, 220 S.W.3d 521, 534 (Tex. Crim. App.), cert. denied, 128 S. Ct. 282
(2007); Marshall v. State, 210 S.W.3d 618, 626 (Tex. Crim. App. 2006), cert. denied, 128 S. Ct. 87
(2007). 
19.  Bigby, 402 F.3d at 572. 
20.  Art. 37.0711 became law August 30, 1993.
21.  Appellant's requested instructions, which were based on statutory mitigation factors
applicable in a federal death-penalty case, were not part of Texas law at the time of the offense, nor 
are they part of the law now.  Therefore, they would not be a permissible manner in which to address
the mitigation issue in Texas.
22.  Tennard v. Dretke, 542 U.S. 274 (2004); Penry v. Lynaugh, 492 U.S. 302 (1989); see also
Bigby, 402 F.3d at 572.  We assume without deciding that the ex post facto provisions would apply
to a statute that was enacted to satisfy a judicially-recognized constitutional mandate.  See Rogers
v. Tennessee, 532 U.S. 451 (2001) (ex post facto clause does not apply to judiciary); see also Ortiz
v. State, 93 S.W.3d 79, 90 (Tex. Crim. App. 2002) (ex post facto provisions in U.S. and state
constitutions are directed at legislatures, not courts).
23.  See McFarland v. State, 928 S.W.2d 482, 521 (1996); see also Prystash v. State, 3 S.W.3d
522, 534 (Tex. Crim. App. 1999) (although mitigating evidence is statutorily defined as that evidence
which "a juror might regard as reducing a defendant's moral blameworthiness," statutory mitigation
instruction provides jury with vehicle to respond to broader range of mitigating evidence). 
24.  Dobbert v. Florida, 432 U.S. 282, 294 (1977); see also Weaver v. Graham, 450 U.S. 24,
29 & n.13 (1981) (two critical elements must be present for ex post facto law:  it must be
retrospective and it must disadvantage the offender; ex post facto analysis is "concerned solely with
whether a statute assigns more disadvantageous criminal or penal consequences to an act than did
the law in place when the act occurred"); Holt v. State, 2 Tex. 363 (1847) (law at issue "does in no
respect operate to the prejudice of the accused, and is not, therefore, an ex post facto law").
25.  See Grimes v. State, 807 S.W.2d 582, 586-87 (Tex. Crim. App. 1991) (adopting Supreme
Court's definition of "ex post facto" and holding that it is to be used in interpreting same term found
in Article I, section 16 of Texas Constitution).
26.  512 U.S. 154 (1994).
27.   Busby v. State, 990 S.W.2d 263, 271-72 (Tex. Crim. App. 1999); Chamberlain v. State,
998 S.W.2d 230, 235 (Tex. Crim. App. 1999); Broxton v. State, 909 S.W.2d 912, 919 (Tex. Crim.
App. 1995). We are not presented here with the appropriateness of such an instruction when the
sentence at issue is life without parole.
28.  Druery v. State, 225 S.W.3d 491, 508 (Tex. Crim. App.), cert. denied, 128 S. Ct. 627
(2007); Marshall, 210 S.W.3d at 626.  
29.  Gallo v. State, 239 S.W.3d 757, 779 (Tex. Crim. App. 2007), cert. denied, 76 U.S.L.W.
3635 (2008); Joubert v. State, 235 S.W.3d 729, 731-32 (Tex. Crim. App. 2007), cert. denied, 128
S. Ct. 1446 (2008); Rayford v. State, 125 S.W.3d 521, 533 (Tex. Crim. App. 2003).
30.  472 U.S. 320 (1985).
31.  486 U.S. 367 (1988).
32.  Russeau, 171 S.W.3d at 886; Prystash, 3 S.W.3d at 536-37.
33.  Gallo, 239 S.W.3d at 780.

