           IN THE COURT OF CRIMINAL APPEALS
                       OF TEXAS


                                      NO. AP-77,064



                      WILLIAM MICHAEL MASON, Appellant

                                             v.

                                THE STATE OF TEXAS

                         ON DIRECT APPEAL
          FROM CAUSE NO. 0620074 IN THE 228 TH DISTRICT COURT
                          HARRIS COUNTY



       A LCALA, J., delivered the opinion for a unanimous Court.


                                       OPINION

       In 1992, a jury convicted appellant of capital murder for the 1991 kidnapping and

murder of his wife, Deborah Mason. See T EX. P ENAL C ODE § 19.03(a)(2). Pursuant to the

jury’s answers to the special issues set forth in Texas Code of Criminal Procedure article

37.071, section 2(b), the trial judge sentenced appellant to death. T EX. C ODE C RIM. P ROC.
                                                                                   Mason -        2

art. 37.071, § 2(g)(1990).1    His conviction and sentence were affirmed on direct appeal.

Mason v. State, 905 S.W.2d 570 (Tex. Crim. App. 1995). However, in a claim raised in his

first subsequent habeas application, this Court granted appellant relief, vacated his sentence,

and remanded his case to the trial court for a new punishment hearing.2 Ex parte Mason, No.

AP-76,997 (Tex. Crim. App. Mar. 20, 2013) (not designated for publication).

       The trial court held a new punishment hearing in 2015. Based on the jury’s answers

to the special issues, the trial judge sentenced appellant to death. Art. 37.0711, § 3(g).

Direct appeal to this Court is automatic. Art. 37.0711, § 3(j). Appellant raises eight points

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

judgment and sentence of death. We explain our conclusion by reviewing the background

of this case and then by discussing each of the eight issues in turn.

                                         I. Background

       The evidence presented at the punishment hearing showed appellant had a lengthy

criminal history. In 1977, within seven months after he was released from prison, appellant,

his wife Deborah, and some friends were driving around and drinking when they came across

a car in the middle of the road. The party stopped to push the car out of the way and

discovered Curtis Henry, an African-American man, passed out in the driver’s seat. When


       1
         Unless otherwise indicated, all future references to Articles refer to the Code of
Criminal Procedure.
       2
         The allegation was that the trial court erred in denying appellant’s properly requested
mitigation instruction at punishment and providing instead a nullification instruction that did not
allow the jury to consider and give effect to mitigating evidence presented at trial.
                                                                              Mason -       3

they could not wake Henry, appellant told his friends that he was going to show them how

to kill an African-American, referring to Henry with a racial epithet. Appellant then shot

Henry in the head. Appellant later bragged to his friends about the murder.

       After Henry’s murder, appellant fled to California where he was arrested. Appellant

was returned to Texas and pleaded guilty to murdering Henry. While awaiting sentencing,

appellant escaped from custody and was found outside the jail hiding in a barrel. He was

sentenced to 55 years in prison for the murder. He was also sentenced to that same term of

years for an aggravated robbery that he committed before that murder. While in custody for

Henry’s murder, appellant joined and became a high-ranking member of the Aryan

Brotherhood of Texas, a prison gang.

       Eighteen days after being paroled from those convictions, appellant committed the

instant crime, the murder of his wife, Deborah. Appellant was at Deborah’s home with his

daughter, Mandy Mason; his brother, Lonnie Carney; his brother’s friend, Thomas Mullins;

and Deborah and her two-year-old son. At some point, appellant complained about the

volume of the radio and got into an argument with Deborah in her bedroom. Appellant

slapped and beat Deborah while she cried for him to stop, saying, “I love you. Don’t hit me.”

Appellant called Deborah a “whore” and a “bitch,” and said he was going to kill her.

Appellant came out of the bedroom and told Carney to call Carney’s brother-in-law, Terry

Goodman. He instructed Carney to tell Goodman to come over and bring plastic trash bags.

After Goodman arrived, Mullins, Carney, and Mandy left Deborah’s house and went to the
                                                                               Mason -       4

home of appellant’s mother, Juanita. Goodman and his wife also went to Juanita’s home.

Appellant later also drove there in Deborah’s car.

       Appellant, Carney, and Goodman left Juanita’s home and drove Deborah’s car to the

San Jacinto River. Deborah was placed in the trunk of the car, hogtied, gagged, and stuffed

into trash bags. At the river, appellant took Deborah out of the car, still in the bags, and

smashed her head with a concrete rock. He then threw Deborah into the river. When the

men later returned to Juanita’s home, appellant told Carney and Mullins to tell the police that

Deborah had left Juanita’s house in a car with two black men. Deborah’s two-year-old son

was left alone in her house overnight.

       Eleven days after she was killed, Deborah’s body was found in the San Jacinto River.

The medical examiner determined that Deborah’s death was the “result of a skull fracture

with cerebral contusions due to blunt traumas (2) of the head.”

       During the period of time between Deborah’s death and appellant’s arrest, appellant

brutally assaulted his niece, Misty Mason, after she accepted a ride home from a friend who

was African-American and Mexican. Mandy and appellant were present when Misty arrived

home. Misty and Mandy got into an argument. Appellant grabbed Misty by the hair and

threw her to the floor. While Mandy held Misty’s feet, appellant cut off all of Misty’s hair

with a switchblade. Appellant told Misty that he was doing this because she “came home

with a black person.” Appellant also shaved off Misty’s eyebrows, made her strip naked, and

shaved her private parts. Appellant then invited people from the neighborhood into the house
                                                                                Mason -       5

to view her in this condition.

       In addition to the above evidence, the jury learned that appellant was previously

convicted in 1973 of theft, “assault to murder with malice aforethought,” and burglary with

intent to commit theft. Furthermore, while incarcerated in this case, appellant was cited for

numerous acts of misconduct, including possession of a shank, an attack on a guard with

appellant’s leg irons, and threats to kill the guard and witnesses.

       Appellant presented evidence of his troubled childhood, which included his having

alcoholic parents and step-parents, physical abuse of him, and his own alcohol and drug use.

Intelligence testing showed his intellect as low to average.          Several witnesses who

encountered appellant while he was incarcerated testified that he was often polite, good-

humored, and respectful.      Appellant, now in his 60s, also presented evidence of his

significant health problems, including: diabetes, which necessitates the regular use of insulin;

hypertension; chronic pain; and neuropathy. Appellant also requires the aid of a walker to

move around.

       After appellant was sentenced to death, new appellate counsel filed a motion for new

trial asserting six grounds, but none of the grounds complained of ineffective assistance of

counsel and thus no evidence in support of that ground was introduced. The grounds were:

(1) insufficient evidence to support the jury’s determination that appellant, currently, is a

future danger, (2) the future dangerousness special issue is unconstitutional as applied to

appellant, (3) carrying out appellant’s execution is impractical, (4) executing appellant does
                                                                               Mason -      6

not serve the penological goals of the death penalty, (5) appellant’s execution would be cruel

and unusual punishment, and (6) appellant’s time on death row and in solitary confinement

constitute cruel and unusual punishment. The trial court held an evidentiary hearing on the

motion. Trial counsel testified that appellant’s poor health negated his potential for future

danger, rendering his death sentence unconstitutional and impractical. He testified that

appellant suffered from numerous health issues, that he would need regular dialysis soon, that

appellant had problems with mobility, and that, during trial, appellant would occasionally

wince from pain from bending over too quickly and he complained of pain from sitting for

long periods. Counsel also testified that he did not view appellant as a future danger given

appellant’s declining health. In closing, appellate counsel argued that appellant is a sixty-

one-year-old man in declining health that will only worsen in prison. Appellant’s counsel

argued that, based on life expectancy, living conditions in prison, time until execution was

actually imposed, costs of incarceration, and appellant’s failing health, a death sentence for

appellant would serve no penological purpose, was cruel and unusual, and was unlikely to

be carried out before appellant died of natural causes. The trial court denied the motion for

new trial.

                     II. Jury’s Knowledge of Prior Death Sentence

       In point of error one, appellant alleges that he was denied his Sixth Amendment right

to effective assistance of counsel. He specifically contends that his trial counsel were

ineffective by (1) failing to object to statements by the trial judge advising venire members
                                                                                Mason -       7

that appellant had previously been sentenced to death, and (2) permitting statements

throughout the punishment retrial informing jurors that appellant had previously been

sentenced to death. Appellant argues that these failures by counsel “predispose[d] the jury

into rendering a sentence of death.” He asserts that, but for trial counsel’s errors, there is a

reasonable probability that he would have received a life sentence. Appellant also argues in

point of error one that he was denied his right to due process when the jury learned of his

previous death sentence in his punishment retrial. In his second point of error, appellant

contends that the trial court improperly commented on the weight of the evidence by

informing the jury about his prior death sentence. We address each of these complaints in

turn.

        A. Ineffective Assistance of Counsel

        We address the applicable law before analyzing the events at trial. The Sixth

Amendment guarantees a criminal defendant the effective assistance of counsel. Ex parte

Martinez, 330 S.W.3d 891, 900 (Tex. Crim. App. 2011). To prevail on an ineffective

assistance of counsel claim, an appellant must prove that his trial counsel’s performance was

deficient and that he was prejudiced by the deficiency. Strickland v. Washington, 466 U.S.

668, 687 (1984); Martinez, 330 S.W.3d at 900.

        Under Strickland’s first prong, an appellant must prove deficient performance by

showing that his counsel’s performance fell below an objective standard of reasonableness.

466 U.S. at 688-89. An objective standard of reasonableness is defined by prevailing
                                                                                Mason -       8

professional norms at the time of trial, and there is a strong presumption that counsel’s

performance conformed to those norms. Id. To overcome the presumption, an appellant

must rely on evidence of counsel’s deficiency affirmatively demonstrated in the record. Id.;

Lopez v. State, 343 S.W.3d 137, 142-43 (Tex. Crim. App. 2011). We review counsel’s

performance by considering the totality of the circumstances as they existed at the time of

trial, without the benefit of hindsight and without relying only on isolated circumstances at

trial. See Ex parte Flores, 387 S.W.3d 626, 633-34 (Tex. Crim. App. 2012). Ordinarily, this

Court will not find an attorney ineffective in the absence of a record of his rationale if there

is any plausible strategic reason for his action or inaction. Villa v. State, 417 S.W.3d 455,

463 (Tex. Crim. App. 2013). However, when no reasonable trial strategy could justify his

conduct, counsel’s conduct is deficient as a matter of law, regardless of whether the record

adequately reflects his motivations for employing that strategy. Andrews v. State, 159

S.W.3d 98, 102-03 (Tex. Crim. App. 2005).

       Under Strickland’s second prong, an appellant must show that there is a reasonable

probability that, but for counsel’s unprofessional errors, the result of the proceeding would

have been different. Strickland, 466 U.S. at 694. A reasonable probability is a probability

sufficient to undermine confidence in the outcome. Id.

       The voir dire record reflects that defense counsel made the decision before trial to

inform the jury about appellant’s prior death sentence:

       [STATE]:     Judge, can we put something on the record? It’s one of those
       things I meant to do earlier. It’s quick. But it’s about handling the previous
                                                                                 Mason -    9

       conviction and sentence that before we started all this, we had a discussion, the
       State, the Defense with you and that it was their preference to handle it that the
       jury knew and address it up front.

       THE COURT:         Go ahead.

       [STATE]:      Put that in there that that’s what happened.

       ***

       THE COURT:         Now, what is this that you want to put on the record?

       [STATE]: Just that we had a discussion how we were going to address this
       case being so old and being back in front of them when we were all present
       and the decision was made, I think with everybody that there was no way
       around it, is the word I remember, of addressing it up front and then that was
       the preference that they would know this case was tried before and to see how
       they felt about it if they wanted to talk about it. And I was told I need to have
       that on the record that that’s why we’re handling it that way.

       [DEFENSE]:       That’s fine, I agree.

       THE COURT:         I think it’s proper to do that.

       The record shows that, during voir dire, the trial judge informed members of the panel

that appellant had been tried and convicted of capital murder in 1992 and sentenced to death.

The judge further informed the prospective jurors that, subsequent to appellant’s conviction,

“an appellate court reviewed this particular case and decided it was in the best interest of

justice to have another punishment hearing.”

       The record also shows that, during the trial, defense counsel called numerous

witnesses to testify about appellant’s behavior, demeanor, and deteriorating health

throughout his twenty-three years on death row. Counsel emphasized to the jury that it had
                                                                                   Mason -      10

additional information that the previous jury did not have to decide the future dangerousness

issue. In closing arguments, defense counsel stated, “You sit here today because you told us

that you could fairly decide these issues knowing that a jury a long time ago sentenced

[appellant] to death.” Counsel stressed that the jury had the benefit of knowing how

appellant behaved and interacted with others, including inmates, correctional officers, and

prison and medical staff while in prison, and thus, they were better informed to assess his

potential for future dangerousness than the prior jury. Additionally, suggesting that appellant

would die from natural causes while confined in prison regardless of whether a death

sentence was imposed, counsel highlighted appellant’s ill health and advanced age. But,

because the motion for new trial did not allege a ground of ineffective assistance of counsel

on this basis, defense counsel have not expressly explained their rationale for agreeing to

permit the instant jury to learn about appellant’s former death sentence.

       Appellant’s challenge to the first prong is that counsel’s strategy was unreasonable

as a matter of law, in that “no reasonable trial strategy could justify the trial counsel’s

conduct” in permitting the jury to learn about appellant’s prior death sentence that had been

reversed so as to result in this retrial. Andrews, 159 S.W.3d at 102. Ordinarily, under the

rules of appellate procedure, a jury may not learn about a defendant’s previous sentence

before or during a retrial. See T EX. R. A PP. P. 21.9. Rule 21.9(d) states in pertinent part that,

when a new punishment hearing is granted, the “assessment of punishment in the former trial

may not be alluded to in the presence of the jury that hears the case on retrial of punishment.”
                                                                                Mason -      11

Here, although he does not rely on or cite to this particular rule in his appellate brief,

appellant’s challenge to counsel’s ineffectiveness invokes the substance of this rule by

arguing that counsel should have objected to, rather than agreeing to, the jury’s learning

about appellant’s previous death sentence. Substantively, the question here is whether the

record shows that counsel’s chosen strategy was objectively unreasonable in light of the

totality of the circumstances. Strickland, 466 U.S. at 688-89. In this case, although the new

trial hearing did not include a record of counsel’s rationale, the trial record does reveal the

essence of the reasons for their theory to allow the jury to learn about appellant’s prior death

sentence. See id. They represented to the court that the instant jury likely would have

surmised that appellant previously had been sentenced to death due to the length of time in

confinement and that it was more beneficial to appellant to be candid about the prior

sentence. Furthermore, defense counsel believed that they could convince the instant jury

that they should disregard the prior death sentence because they had more extensive

information to gauge appellant’s behavior than the prior jury’s more limited information from

two decades ago. There are persuasive arguments in favor of and against the position that

counsel should not have permitted the jury on retrial to learn about appellant’s former death

sentence. But, we need not definitely resolve appellant’s complaint with respect to the first

prong because, even were we to accept his argument that counsel’s strategy was objectively

unreasonable, appellant has failed to meet Strickland’s prejudice prong. See id. at 694.

       The State presented overwhelming evidence at punishment to show that appellant

would be a future danger to society. Based on the record before us, therefore, appellant fails
                                                                                Mason -      12

to show that there is a reasonable probability that the outcome would have been different had

defense counsel either objected to the complained-of evidence or requested a specific

instruction for the jury not to consider it. Id.

       The record shows that appellant has committed racially prejudiced and other violence

in and out of prison for most of his adult life. Based on a racial motive, he killed a stranger,

who was an African-American man, by shooting him in the head. Soon after his parole for

that offense, appellant killed Deborah by beating her, placing her inside plastic trash bags,

kidnapping her in the trunk of her car, bashing her skull with a concrete rock, and throwing

her into a river. After that, he brutally assaulted his niece Misty for being in the company of

an African-American young man. While awaiting his capital murder trial, appellant told

others that he was trying to have witnesses killed. The jury also heard evidence of the

numerous violent acts appellant committed against his family members, his previous violent

felony convictions, and his lengthy jail disciplinary record which included an escape attempt,

threats to staff, and an assault of a guard. While awaiting his new punishment hearing,

appellant was cited for numerous threats and bad acts, including attacking a guard with leg

irons, and threatening to kill that guard – all while appellant was reportedly in need of a

walker or cane in order to move around. The record also shows that appellant was a high-

ranking member of the Aryan Brotherhood of Texas, a racist and violent prison gang. In

contrast, appellant’s defense evidence lacked persuasive value to minimize the probative

impact of this evidence. Given the extreme brutality and number of violent offenses

committed by appellant inside and outside of prison, appellant fails to show that, but for the
                                                                                Mason -      13

jury’s knowledge of his previous death sentence, there is a reasonable probability that the

jury would have answered the special issues differently. Accordingly, regardless of whether

counsel’s strategy here fell below an objective standard of reasonableness, we conclude that

appellant has failed to establish prejudice resulting from counsel’s decision to permit the jury

to learn of his prior death sentence.

       B. Due Process

       We similarly conclude that appellant has failed to show that he was denied due

process as a result of the introduction of information about his prior death sentence. The

United States Supreme Court has held that the introduction of evidence of an earlier death

sentence does not amount to constitutional error when the evidence did not “affirmatively

[mislead] the jury regarding its role in the sentencing process so as to diminish its sense of

responsibility.” Romano v. Oklahoma, 512 U.S. 1, 10 (1994); see also Muniz v. Johnson, 132

F.3d 214, 223 (5th Cir. 1998). While Romano was decided in the context of the jurors’

knowledge of a death sentence for a separate murder, the holding is equally applicable where

the prior sentence was for the same offense because the critical inquiry is whether the jury

was “misled in its sentencing role.” See Muniz, 132 F.3d at 223-24.

       Here, in light of all of the evidence submitted during the punishment retrial,

appellant’s contention that the jury’s knowledge of his previous death sentence so infected

its consideration of other evidence as to amount to a denial of due process lacks merit. To

the contrary, the jury was informed that it had a litany of favorable evidence that the prior

jury did not, such as knowledge of how appellant had conducted himself in prison for over
                                                                                  Mason -         14

twenty years, and was instructed to consider all of the evidence presented in answering the

special issues. Because appellant has failed to show that the jury was affirmatively misled

regarding its responsibility in the sentencing process, we reject his due process complaint.

Point of error one is overruled.

       C. Comment on the Weight of the Evidence

       In point of error two, appellant argues that the trial court improperly commented on

the weight of the evidence by informing the venire that appellant had been previously

sentenced to death. He asserts that this violated his Sixth Amendment right to a fair trial and

his Fourteenth Amendment right to due process.3

       As discussed above, the record shows that the trial court informed each prospective

juror panel, prior to individual voir dire, that appellant had previously been convicted of

capital murder and sentenced to death. He further told the panels that appellant’s sentence

had been overturned and this case was a trial on punishment only. Prior to the trial court

making these comments, the State and defense counsel had agreed that the jury would be

informed of appellant’s previous sentence.

       In resolving this issue, we again note that Rule of Appellate Procedure 21.9 provides

that, in the event of resentencing, a former sentence “may not be alluded to in the presence




       3
                Appellant also alleges that he was subjected to cruel and unusual punishment in
violation of the Eighth Amendment. Appellant, however, has failed to provide separate
argument or authority in support of his Eighth Amendment claim. Therefore, we decline to
address this claim because it is inadequately briefed. See Rule 38.1.
                                                                               Mason -     15
of the jury that hears the case on retrial of punishment.” T EX. R. A PP. P. 21.9. Appellant,

however, does not complain about a violation of this procedural rule—instead his complaint

is that the trial court’s comments here rose to the level of a due process violation and

infringed upon his right to a fair trial. See Ex parte Carter, 521 S.W.3d 344, 349 (Tex. Crim.

App. 2017) (distinguishing between violations of constitutional rights and statutory or

procedural violations, and stating that, while “procedural errors or statutory violations may

be reversible error,” they “are not necessarily fundamental or constitutional errors”).

Because appellant’s arguments here are limited to an alleged violation of his constitutional

rights, we will consider only that question. For the same reasons that appellant failed to

demonstrate a constitutional violation or harm in point of error one—either due to the fact

that the trial court’s comments did not mislead the jury regarding its role in the sentencing

process, or in light of the overwhelming evidence supporting the jury’s punishment verdict—

we conclude that appellant also fails to demonstrate a constitutional violation here. Point of

error two is overruled.

                          III. Future Dangerousness Special Issue

       The future dangerousness special issue requires the State to prove beyond a reasonable

doubt that there is a probability that appellant “would commit criminal acts of violence that

would constitute a continuing threat to society.” Art. 37.0711, § 3(b)(2). In his third point

of error, appellant argues that this issue was unconstitutional “as applied” to him because it

did not permit the jury to consider his current physical circumstances and limitations.

However, nothing about the future dangerousness issue limits appellant’s ability to present
                                                                                 Mason -     16
such evidence or limits the jury’s ability to consider such evidence in answering the question.

       Appellant argues that this Court’s opinion in Jurek v. State limits the factors that a

jury may consider when answering the future dangerousness issue.4 522 S.W.2d 934, 939-40

(Tex. Crim. App. 1975), aff’d, Jurek v. Texas, 428 U.S. 262 (1976). To the contrary, this

Court specifically held that the future dangerousness special issue allows for discretion from

jurors. Id. This discretion, in turn, ensures “individualization based on consideration of all

extenuating circumstances.” Id. (“We are inclined to believe that the factors which determine

whether the sentence of death is an appropriate penalty in a particular case are too complex

to be compressed within the limits of a simple formula.”). Therefore, nothing about our

opinion in Jurek limits evidence or a jury’s consideration to only those exemplars enumerated

in that case. See id. at 939-40.

       Here, the record shows that the jury heard extensive evidence of appellant’s current

physical circumstances and health issues. In asking for a life sentence, appellant argued that




       4
           In Jurek v. State, we noted the following:

       However, there are some factors which are readily apparent and are viable factors
       for the jury’s consideration. In determining the likelihood that the defendant
       would be a continuing threat to society, the jury could consider whether the
       defendant had a significant criminal record. It could consider the range and
       severity of his prior criminal conduct. It could further look to the age of the
       defendant and whether or not at the time of the commission of the offense he was
       acting under duress or under the domination of another. It could also consider
       whether the defendant was under an extreme form of mental or emotional
       pressure, something less, perhaps, than insanity, but more than the emotions of the
       average man, however inflamed, could withstand.

522 S.W.2d 934, 939-40 (Tex. Crim. App. 1975).
                                                                                   Mason -      17
he was too ill to be a future danger. Through each of the special issues, the jurors were

permitted to consider all of the evidence presented, including evidence of appellant’s “unique

physical circumstances and limitations.” See Hughes v. State, 897 S.W.2d 285, 299 (Tex.

Crim. App. 1994) (rejecting appellant’s claim that Article 37.071 is unconstitutional as

applied to him by reasoning that evidence of his mental and emotional instability could be

considered within the scope of the special issues).

       The future dangerousness special issue was not unconstitutional as applied to

appellant. Point of error three is overruled.

                                 IV. Mitigation Special Issue

       In point of error four, appellant contends that the mitigation special issue was

unconstitutional as applied to him because it limited the type of evidence that the jury could

consider as mitigating. He argues that the plain language of the issue limits the jury’s

consideration to “the circumstances of the offense, the defendant’s character and background,

and the personal moral culpability of the defendant.” See Art. 37.0711, § 3(e). Thus, he

contends that the issue fails to provide the jury a meaningful way to consider any mitigation

evidence that does not fall within these categories, in violation of his right to a fair trial, the

prohibition against cruel and unusual punishment, and his right to due process under the

Sixth, Eighth, and Fourteenth Amendments to the United States Constitution.

       Appellant cites to nowhere in the record, and we find no evidence in the record, that

he specifically objected at trial that Article 37.0711 limited the type of evidence the jury

could consider as mitigating or that the special issue was unconstitutional as applied to him.
                                                                                 Mason -      18
To preserve error for appellate review, a party generally must present a timely objection to

the trial court, state the specific grounds for the complaint, and obtain a ruling. Rule 33.1(a);

see also Curry v. State, 910 S.W.2d 490, 496 (Tex. Crim. App. 1995) (holding that a specific

objection is required to preserve an as-applied challenge to Article 37.071). Appellant failed

to do so here. Therefore, he did not preserve his fourth point of error.

       However, even if appellant had preserved his challenge to the statute, he would not

prevail. The mitigation special issue as set out in Article 37.0711, § 3(e), and as provided

to the jury, states:

       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
       rather than a death sentence be imposed.

(Emphasis added). This Court has previously held that the term “including” is one of

inclusion, not limitation. State v. Vasilas, 187 S.W.3d 486, 489-90 (Tex. Crim. App. 2006);

see also T EX. G OV’T C ODE § 311.005(13) (“‘Includes’ and ‘including’ are terms of

enlargement and not of limitation or exclusive enumeration, and use of the terms does not

create a presumption that components not expressed are excluded.”). Therefore, the only

limitation, if any, comes from whether the evidence was presented to the jury.

       Appellant does not claim that he was prevented from presenting any mitigating

evidence to the jury. The record shows that he presented extensive evidence that the jury

could consider mitigating, such as his unstable upbringing, his abusive father figures, and his

good behavior in prison over the twenty-three years that he was incarcerated before his
                                                                                 Mason -     19
retrial. He also presented evidence of his deteriorating health and his reliance on the aid of

a walker. Nothing about the language of the mitigation special issue restricted the jury’s

consideration of this evidence. Therefore, the mitigation issue was not unconstitutional as

applied to appellant. Point of error four is overruled.

                                   V. Jury Charge Error

       In his fifth point of error, appellant complains that the mitigation special issue in the

abstract portion of the jury instructions was worded differently than it appears in the statute.

The abstract portion of the charge instructed the jury as follows:

       In answering Special Issue No. 3 you shall consider mitigating evidence to be
       evidence that a juror might regard as reducing the defendant’s personal moral
       culpability, including but not limited to, evidence of the defendant’s
       background, character, or the circumstances of the offense that mitigates
       against the imposition of the death penalty.

(Emphasis added). Appellant specifically argues that the “including but not limited to”

language in the abstract portion of the charge conflicts with the term “including” in the

statutory issue. See Article 37.0711, § 3(e). Similar to his fourth point of error, appellant

asserts that this conflict improperly limited the mitigating evidence that the jury considered.

He contends this conflict violated his right to a fair trial, the prohibition against cruel and

unusual punishment, and his right to due process under the Sixth, Eighth, and Fourteenth

Amendments to the United States Constitution.

       A jury charge that tracks the language of a particular statute is a proper charge. Coble

v. State, 330 S.W.3d 253, 297 (Tex. Crim. App. 2010) (finding no jury charge error when the

mitigation special issue tracked the language of the mandated mitigation question in Article
                                                                               Mason -     20
37.0711). Here, the language of the mitigation issue in the jury charge adequately tracked

the language of the statute without changing the meaning of the statutory language. See

Article 37.0711, § 3(e). Further, as we stated in point of error four, the language of the

mitigation issue did not limit the jury from considering any and all mitigating evidence

presented to the jury. The remaining issue is whether the phrase “including but not limited

to” in the abstract portion of the charge constituted error.

       The abstract portion of the charge serves to guide the jury on the meaning of concepts

and terms used in the application paragraphs of the charge. See Crenshaw v. State, 378

S.W.3d 460, 466 (Tex. Crim. App. 2012). Here, though the abstract portion of the charge

did not track the statute verbatim, it clarified that the jurors must consider any mitigating

evidence when answering the mitigation issue and must not limit their consideration to

specific categories of evidence. Further, as noted above in our discussion of point of error

four, the term “including” is one of enlargement and not of limitation or exclusive

enumeration, and the complained-of abstract portion emphasized this meaning. Thus, the

abstract charge given was even more expansive than the statutory language.

       We find no jury charge error. Nothing about the abstract instruction was an incorrect

or misleading statement of law. See id. (holding that reversible error occurs in giving an

abstract instruction only when the instruction is an incorrect or misleading statement of law

that the jury needs to understand in order to implement the commands of the application

paragraph). The charge here properly instructed the jury to consider any of the trial evidence

relevant to mitigation in answering the third special issue. Point of error five is overruled.
                                                                               Mason -     21
                             VI. Deliberateness Special Issue

       In point of error six, appellant contends that the deliberateness issue is

unconstitutionally vague on its face because the term “deliberately” is subject to various

interpretations. Appellant did not preserve his complaint for appellate review by making a

timely objection and obtaining a ruling from the trial court. Rule 33.1(a)(1). Moreover, as

appellant concedes, this Court has previously decided that the deliberateness special issue is

not unconstitutionally vague. See Ramirez v. State, 815 S.W.2d 636, 653 (Tex. Crim. App.

1991); Smith v. State, 683 S.W.2d 393, 410-11 (Tex. Crim. App. 1984). Appellant raises

nothing new to persuade us to revisit the issue. Point of error six is overruled.

                                 VII. Time on Death Row

       In his seventh point of error, appellant asserts that the nearly twenty-five years he

spent confined on death row constitutes cruel and unusual punishment under the Eighth and

Fourteenth Amendments to the United States Constitution. We have previously addressed

and rejected claims like this one. See Smith v. State, 74 S.W.3d 868, 875 (Tex. Crim. App.

2002) (finding the imposition of the death penalty for capital murder after the defendant

served twelve years in prison did not constitute cruel and unusual punishment when he had

been pursuing appeals and collateral relief); Bell v. State, 938 S.W.2d 35, 53 (Tex. Crim.

App. 1996) (rejecting the claim that to execute a death-sentenced inmate after nearly twenty

years in prison while pursuing appeals is cruel and unusual).

       Appellant has availed himself of both the state and federal systems of appellate

procedure and collateral review, and he was granted a new punishment hearing. As this
                                                                                     Mason -       22
Court stated in Smith, “[t]he present standards of decency do not deem cruel and unusual the

delay occasioned while a condemned prisoner pursues direct appeals and collateral relief.”

74 S.W.3d at 875. We cannot conclude that, at this juncture of the direct appeal that is the

result of a retrial obtained through previous litigation challenging a former sentence of death,

appellant’s constitutional rights have been violated by the delay. Point of error seven is

overruled.

                                    VIII. Challenge for Cause

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

challenge for cause against venire member Daisy Talavera. Specifically, he asserts that

Talavera was challengeable for cause pursuant to Article 35.16 because she (1) could not

follow the trial court’s instructions and assess deliberateness independently of a finding of

intent, and (2) would find a defendant to be a continuing threat to society based on the fact

that he murdered someone in the course of a kidnapping.

       When a trial court erroneously overrules a defense challenge for cause against a venire

person, a defendant is harmed only if he uses a peremptory strike to remove the venire person

and then afterwards suffers a detriment from the loss of the strike. Saldano v. State, 232

S.W.3d 77, 91 (Tex. Crim. App. 2007); Chambers v. State, 866 S.W.2d 9, 22 (Tex. Crim.

App. 1993). Error is preserved for review only if appellant (1) used all of his peremptory

strikes,5 (2) asked for and was refused additional strikes, and (3) was then forced to accept


       5
           See Article 35.15(a) (“In capital cases in which the State seeks the death penalty both
                                                                                        (continued...)
                                                                                     Mason -   23
an identified objectionable juror that he would have otherwise struck and who actually sat

on the jury. Chambers, 866 S.W.2d at 23. When these requirements are met, the trial court’s

erroneous denial of a defense challenge for cause harms the defendant by improperly

depriving him of at least one of his statutory peremptory challenges that he could have used

to remove the juror whom the defendant finds “objectionable.” Saldano, 232 S.W.3d at 91.

       In this case, the record shows that appellant exhausted his fifteen statutory peremptory

strikes and requested additional strikes. The trial court granted appellant one additional

peremptory strike which he immediately used. Appellant asked for and was denied a second

additional peremptory strike. Appellant identified juror Michael Devries, the twelfth juror

selected, as objectionable. Therefore, appellant preserved error.

       However, because appellant was granted one additional peremptory strike, in order

to demonstrate harm, he must show that the trial court erroneously denied his challenges for

cause against at least two venire persons. Newbury v. State, 135 S.W.3d 22, 31 (Tex. Crim.

App. 2004); Chambers, 866 S.W.2d at 23. But appellant alleges that only one of his

challenges for cause was erroneously denied. Thus, he fails to show that he was wrongfully

denied “the use of at least one of his allotted peremptory challenges.” Newbury, 135 S.W.3d

at 31. Therefore, even if we assume the trial court erroneously denied appellant’s challenge

to Talavera, appellant cannot demonstrate harm. Appellant’s eighth point of error is

overruled.



(...continued)
the State and the defendant shall be entitled to fifteen peremptory challenges.”).
                                                                         Mason -    24
                                     IX. Conclusion

      Having considered and overruled all of appellant’s points of error, we uphold his

sentence. We affirm the judgment of the trial court.

DELIVERED: September 19, 2018
DO NOT PUBLISH
