            IN THE COURT OF CRIMINAL APPEALS
                        OF TEXAS
                                         AP-75,878



                 CHRISTOPHER CHUBASCO WILKINS, Appellant

                                             v.

                                THE STATE OF TEXAS



                           Appeal from Case 1002038D of the
                            297th Judicial District Court of
                                    Tarrant County



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


       In March, 2008, a jury convicted the appellant, Christopher Chubasco Wilkins, of

capital murder. Pursuant to the jury’s findings on future-dangerousness and mitigation

special issues, the trial court sentenced the appellant to death. The appellant now raises
                                                                                                         WILKINS --2

sixteen points of error on direct appeal to this Court.1 Finding no reversible error, we

affirm the judgment and sentence of the trial court.

                                                I. BACKGROUND

         The appellant gave statements to authorities that described his murders of Willie

Freeman and Mike Silva. Freeman was a homeless man who lived in Fort Worth. Silva

lived outside Fort Worth, but traveled into the city to purchase drugs. Freeman would

show Silva where to buy drugs, and Silva would share his purchases with Freeman.

         In October 2005, the appellant left a halfway house in Houston, stole a truck, and

drove to Fort Worth. The appellant happened upon Freeman, who offered to sell him

some drugs. But Freeman and his supplier tricked the appellant into buying a piece of

gravel instead of a rock of cocaine. The men took $20 from the appellant and laughed at

him. So the appellant decided to kill Freeman.

         Over the next few weeks, Freeman and the appellant used drugs together. Freeman

apologized for stealing from the appellant and gave him some drugs to make up for it.

         On October 27, 2005, the appellant told Freeman that he had some guns and drugs

stashed on the west side of Fort Worth. Silva agreed to drive Freeman and the appellant in

Silva’s vehicle. From the back seat, the appellant directed Silva to an area on the west

side of Fort Worth. When they arrived at a deserted stretch of road, the appellant shot

Freeman in the back of the head. Silva stopped the vehicle and tried to escape, but he got


         1
           See T EX . C O D E C RIM . P RO C . art. 37.071, § 2(h) (“The judgment of conviction and sentence of death shall
be subject to automatic review by the Court of Criminal Appeals.”).
                                                                                                  WILKINS --3

caught in his seatbelt. The appellant shot him once in the neck and twice in the head. The

appellant then climbed into the driver’s seat and began driving with Silva’s body hanging

outside of the vehicle, still entangled in his seatbelt. The appellant finally cut the seatbelt

to remove Silva, and dumped the victims’ bodies in a ditch at the side of the road.

       About a week later, after two high-speed police chases, Silva’s vehicle was

recovered, and the appellant was apprehended.

                                                   II. JURY SELECTION

        In points of error one and two, the appellant argues that the trial court erroneously

denied his challenges for cause against venire members Peterson and Kitchen. The

appellant claims that both Peterson and Kitchen expressed an inability to follow the law

governing the case.

       The defense may challenge a potential juror for cause if the juror “has a bias or

prejudice against any of the law applicable to the case upon which the defense is entitled

to rely.” 2 When reviewing the trial court’s ruling, we look at the entire record to

determine if there is sufficient evidence to support the ruling.3 We give the court’s ruling

considerable deference because the court is in the best position to evaluate the venire

members’ demeanor and responses.4


       2
           T EX . C O D E . C RIM . P RO C . art. 35.16(c)(2).

       3
           Feldman v. State, 71 S.W .3d 738, 744 (Tex. Cr. App. 2002) .

       4
           Id.; see generally Guzman v. State, 955 S.W .2d 85, 89 (Tex. Cr. App. 1997) (Appellate courts afford
                                                                                                   (continued...)
                                                                                                        WILKINS --4

         The appellant exhausted all his peremptory strikes and was granted one additional

peremptory strike. Because the trial court granted an additional peremptory strike, the

appellant cannot show harm from the alleged trial court errors unless he demonstrates that

the trial court erred in denying his challenges to both venire members.5

         The appellant argues that Kitchen “placed a burden of proof on both parties,

including the defense.” In support of his argument, the appellant cites the following

excerpt from the record:

         [DEFENSE COUNSEL]: So I’m not confused about anything, I don’t want
         to put words in your mouth or change your mind, it’s your position knowing
         all the stuff that you know about that you still want us to put on evidence to
         show that he didn’t participate in any type of killing or anything like that; is
         that your understanding?

         [KITCHEN]: Yes, I want to hear from both sides, the parties –

         [DEFENSE COUNSEL]: And that’s your firm position. And I am not going
         to try to change your position, have you waiver [sic] in any way. That’s
         your firm position; is that correct?

         [KITCHEN]: Yes, open-minded about both sides, both sides.

         [DEFENSE COUNSEL]: And knowing that the government has to prove its
         case to you beyond a reasonable doubt and knowing we don’t legally have
         to show you anything, but that’s still your position; is that correct?

         [KITCHEN]: Right. Right.



         4
             (...continued)
“almost total deference” to the trial court’s resolution of issues that turn on an evaluation of credibility and
demeanor.).

         5
             See Escamilla v. State, 143 S.W .3d 814, 821 (Tex. Cr. App. 2004).
                                                                               WILKINS --5

       This excerpt, as well as the remainder of the voir dire, reflects that Kitchen

“wanted” and “expected” to hear evidence from the defense, but understood that the State

had the burden of proof and the defense was not “required” to present any evidence. A

venire member’s saying that she wants to hear evidence from the defense, and expects to

hear such evidence, does not automatically disqualify her for having a bias or prejudice

against the law placing the burden of proof on the State, or being unable to acquit the

defendant unless the defense produced some evidence.

       In the capital case of Banda v. State, although a “venireperson seemed to state at

one point that appellant had a burden to bring forth evidence, she stated that she could

follow the law, did not presume appellant to be guilty, and did not require appellant to put

on evidence.” We held, “The trial court could reasonably have found that her testimony as

a whole did not reflect a bias against the law.” 6

       Giving appropriate deference to the trial court’s ruling, we cannot find that the trial

court erred in denying the appellant’s challenge for cause. Because we find no error with

respect to Kitchen, we need not address Peterson.7 Points of error one and two are

overruled.




       6
           890 S.W.2d 42, 57 (Tex. Cr. App. 1994).

       7
           Id.
                                                                                    WILKINS --6

                                 III. GUILT PHASE EVIDENCE

                                      A. Extraneous Offense

          In his sixth point of error, the appellant argues that the trial court erred in

excluding evidence of the appellant’s confession to killing Gilbert Vallejo two days

before the murders of Freeman and Silva. Detective Cheryl Johnson testified about the

appellant’s confession to the Freeman and Silva murders. The trial court permitted

Johnson to testify on cross-examination that the appellant had also claimed responsibility

for several murders and other offenses in a variety of states, but that she was unable to

match these claims to reported offenses.

          The trial court did not, however, permit the appellant to cross-examine Johnson

regarding the appellant’s confession to the Vallejo murder. The following excerpt

contains the appellant’s proffer, the State’s objection to relevance, and the trial court’s

ruling:

          [DEFENSE COUNSEL]: Basically, during [Detective Johnson’s]
          interviews of Mr. Wilkins, did he make – you’ve already talked about the
          other admissions to other homicides that he claimed he was involved in, did
          he also claim to be involved in a homicide of an individual in Fort Worth,
          Texas in 2005 by the name of Gilbert Vallejo outside a local bar in which
          he claimed that the individual was cursing at him in the Spanish language,
          using foul language at him, was intoxicated outside the bar while he was on
          the phone, and he claims to have shot this man? Is that right? Yes. And
          then that’s it.

          [STATE]: Okay. Well, then yes, I object, Your Honor. It’s nothing more
          than an attempt to blunt the State’s punishment case. He’s offered
          absolutely no suggestion as to why it’s relevant. He’s offered absolutely no
          suggestion that it is, in fact, a false confession, which is the whole reason he
                                                                       WILKINS --7

got into the other extraneous murders, is his suggestion that they’re false
confessions. He has no evidence that this is false. Or if he has, he hasn’t
let the Court know. So he has not demonstrated relevance.

…

THE COURT: Okay. Any response to the relevancy objection?

[DEFENSE COUNSEL]: Yes, Judge. Well, we submit that the claims are
false. There may be different opinions about that, but we submit the claims
are false. The Court already heard, I think, some information or testimony
that following the homicide of Gilbert Vallejo, there were a number of
witnesses interviewed in the neighborhood and vicinity where this occurred
who claim they saw someone running from the scene.

There were identification procedures done, live lineups and photo spreads,
and with the exception of Keith Sweat, who did not ID him and then later
he did, the others have either been tentative or negative, including
identifying another individual in the identification procedures by some
witnesses.

So, I mean, I guess that’s up to the jury. But for the reasons that we offered
the other confessions, I won’t go through that whole litany, I just adopt all
the arguments that we had in that regard. We would propose to ask those
few questions of this detective.

…

[STATE]: The defense counsel’s position is that this is a false confession,
and his argument in support of that is the fact that we have an eyeball
witness who’s identified the defendant as the shooter or as seen running
away from the crime.

Frankly, I don’t see where that bolsters his case much, especially in light of
the fact the ballistics match the other murder which he’s also confessed and
which he’s tied to for DNA and fingerprint evidence. So no, Your Honor,
whatever minimal relevance there is is greatly outweighed.

THE COURT: Well, the Court at this time is going to sustain the State’s
relevancy objection to the proposed questions and answers.
                                                                                WILKINS --8

       Evidence is relevant if it has “any tendency to make the existence of any fact that

is of consequence to the determination of the action more probable or less probable than it

would be without the evidence.” 8 We review the trial court’s decision to exclude the

evidence under an abuse of discretion standard.9

       The defense theory was that the appellant had confessed to murders and other

crimes that he did not commit; because he had made such false confessions to other

crimes, his confession to the capital murder in the instant case was not credible. However,

the appellant failed to proffer any meaningful evidence that the appellant’s confession to

the Vallejo murder was false; his proffer was only that the State’s “identification

procedures” were inconclusive, which did not show that the appellant’s confession was

false. Without proof of its falsity, the appellant’s confession to the Vallejo murder did not

have a tendency to make the falsity of his confession to the Freeman and Silva murders

more probable than it would be without such evidence. The trial court therefore did not

abuse its discretion in excluding the evidence for lack of relevance. Point of error six is

overruled.

                                                B. Photographs

       In his seventh point of error, the appellant argues that the trial court erred in

admitting two crime-scene photographs of the victims. Specifically, he argues that the



       8
           T EX . R. E VID . 401.

       9
           Shuffield v. State, 189 S.W .3d 782, 793 (Tex. Cr. App. 2006).
                                                                                  WILKINS --9

photographs should have been excluded under Rule of Evidence 403 because they were

unnecessarily “graphic” and “gruesome.”

       Rule 403 allows the trial court to exclude evidence if the probative value of the

evidence is “substantially outweighed by the danger of unfair prejudice, confusion of the

issues, or misleading the jury, or by considerations of undue delay, or needless

presentation of cumulative evidence.” A Rule 403 analysis includes, but is not limited to,

the following factors: (1) the probative value of the evidence; (2) the potential to impress

the jury in some irrational, yet indelible, way; (3) the time needed to develop the

evidence; and (4) the proponent’s need for the evidence.10 In the context of photographs,

we also consider factors including “the number of photographs, the size, whether they are

in color or are black and white, whether they are gruesome, whether any bodies are

clothed or naked, and whether the body has been altered by autopsy.” 11 The trial court’s

decision to admit or exclude such evidence is reviewed under an abuse of discretion

standard.12

       The photographs at issue were introduced during the testimony of crime-scene

officer Robert Presney. The photographs were each in color and four by six inches in size.

State’s Exhibit 48 shows Silva lying in the ditch with his hands over his head. Presney



       10
            Erazo v. State, 144 S.W.3d 487, 489 (Tex. Cr. App. 2004).

       11
            Id .

       12
            See Montgomery v. State, 810 S.W .2d 372, 391 (Tex. Cr. App. 1991).
                                                                               WILKINS --10

used the photo to show some of Silva’s injuries but also to show that Silva was most

likely dragged by his feet to this position. State’s Exhibit 50 shows a gunshot wound to

the back of Freeman’s head.

       The appellant argues that the State “introduced other, less graphic photographs of

the crime scene, rendering exhibits 48 and 50 useless, except for the purpose of offering

prejudicial material that could have inflamed the jurors.” We disagree. State’s Exhibits 48

and 50 showed the condition of the victims as they were discovered at the side of the

road. The photographs had significant probative value in corroborating details of the

appellant’s confession with respect to the manner of killing the victims and disposing of

their bodies. The photographs therefore rebutted the defensive theory that the appellant

gave a false confession. Furthermore, the photographs were not particularly offensive,

they were not enhanced in any way, and they portrayed no more than the gruesomeness of

the injuries inflicted during the offense.13 After reviewing the photographs, we are not

persuaded that the danger of unfair prejudice substantially outweighed their probative

value. The trial court did not abuse its discretion in admitting these exhibits. Point of error

seven is overruled.

                                                 C. Confession

       In his tenth point of error, the appellant argues that the trial court erred in denying

his motion to suppress one of his inculpatory statements. He argues that simply reading


       13
            See Narvaiz v. State, 840 S.W .2d 415, 429 (Tex. Cr. App. 1992).
                                                                             WILKINS --11

him Miranda 14 warnings after he indicated that he wanted to speak with a detective was

insufficient to waive his earlier request for counsel.

       A pre-trial hearing was held on the appellant’s motion to suppress. The trial court

filed written findings of fact and conclusions of law based on the evidence presented at

the hearing; the appellant makes no suggestion that the trial court’s findings of fact are

unsupported by the record. The trial court’s findings and conclusions, in pertinent part,

are as follows:

       The Court finds that Detective Cheryl Johnson, a police officer for the City
       of Fort Worth, was assigned to investigate a capital murder offense
       involving the deaths of Willie Freeman and Mike Silva on October 28,
       2005. The Court finds that Detective Jose Hernandez, a police officer for
       the City of Fort Worth, was assigned to investigate a murder offense
       involving the death of Gilbert Vallejo on October 26, 2005.

       …

       The Court finds that after the [Defendant’s] statements were taken [by
       Detective Johnson] on November 8, 2005, the Defendant agreed to take a
       polygraph examination and that he was taken by police officers to Dallas,
       Texas, for that purpose. The Court finds that the Defendant then told
       Detective Johnson that he would not take a polygraph exam without a
       lawyer present. The Court finds that the polygraph exam was not done, that
       the Defendant was returned to Fort Worth and that he was placed back in
       jail.

       The Court finds that the Defendant was part of a lineup conducted at the
       Tarrant County Jail on November 16, 2005, and that after the lineup was
       concluded the Defendant asked Detective Johnson if he could talk to her.
       The Court finds that the Defendant initiated this contact with Detective




       14
            Miranda v. Arizona, 384 U.S. 436 (1966).
                                                                    WILKINS --12

Johnson and that she informed him that if he wished to speak with her, he
could send her a [written message] and that she would talk to him ….

The Court finds that Detective Johnson received an envelope with a small
piece of paper from the Defendant asking her to come speak with him on
November 29, 2005, and that on November 30, 2005, she received a
[written message] from the Defendant strongly urging her to come speak
with him… .

The Court finds that the Defendant was also checked out of jail by the
police … on December 14, 2005, for a conversation which was recorded ….

The Court finds that the Defendant initiated contact with Detective Johnson
on November 16, 2005, and again on November 29 and 30, 2005, and that
he never invoked his right to remain silent and not to talk to the police at
any time on or after November 16, 2005 …. The Court finds that the
Defendant freely, knowingly, intelligently, and voluntarily waived his right
to an attorney and insisted on talking to the police despite advice to the
contrary from counsel at all times after November 16, 2005 ….

…

State’s Exhibit No. 3 is the statement taken by Detective Hernandez on
December 14, 2005 …. The Court finds that Detective Hernandez warned
the Defendant of his Miranda warnings and rights prior to the statement and
during the recording and that the Defendant freely, knowingly, intelligently,
and voluntarily waived all of these rights. The Court finds that the
Defendant had invoked his Fifth Amendment right to counsel and to remain
silent previously on November 8, 2005, when he refused to take a polygraph
without a lawyer present. The Court finds that the Defendant subsequently
initiated contact with the police on the several instances as discussed above
and never invoked his right to counsel after initiating contact with the
police as discussed above and actually disregarded advice from counsel.
The Court finds that the statements contained in State’s Exhibit No. 3
relating to the offense of capital murder of Willie Freeman and Mike Silva
are admissible.
                                                                                  WILKINS --13

       We review the trial court’s ruling on the motion to suppress for abuse of

discretion.15 In reviewing the trial court’s ruling, we give almost total deference to the

trial court’s determination of historical facts, especially when that determination is based

on the court’s evaluation of credibility and demeanor.16 We review de novo questions of

application of law to fact that do not turn on an evaluation of credibility and demeanor.17

       The Fifth Amendment right to counsel requires that once a suspect has expressed

his desire to deal with police only through counsel, he may not be subjected to further

interrogation until counsel has been made available, “unless the accused himself initiates

further communication, exchanges or conversation with the police.” 18 A suspect is

deemed to have waived his previously-invoked right to counsel only when (1) the suspect

himself initiates further communication with police, and (2) after he re-initiates

communication with police, the suspect validly waives the right to counsel.19 Once

communication is re-initiated, police are free to re-initiate any future communications and




       15
            See Villarreal v. State, 935 S.W .2d 134, 138 (Tex. Cr. App. 1996).

       16
            Guzman, 955 S.W .2d, at 89.

       17
            Id.

       18
            Edwards v. Arizona, 451 U.S. 477, 484-85 (1981).

       19
            Oregon v. Bradshaw, 462 U.S. 1039, 1044-45 (1983) (plurality op.).
                                                                              WILKINS --14

obtain any further statements as long as each statement is voluntarily made after the

waiver of Miranda rights.20

       We must give almost total deference to the trial court’s determination of historical

facts. After invoking his Fifth Amendment right to counsel on November 8, 2005, the

appellant initiated communication with Detective Johnson on November 16, 29, and 30.

The appellant then received Miranda warnings and explicitly waived his right to counsel

prior to his December 14 statement to Detective Hernandez. The appellant does not

contest these fact findings, but argues that this waiver was involuntary due to his

“diminished mental capacity and the fact that the written warnings that preceded the

second statements included the confusing reference to rights appellant had already

invoked.” However, the appellant fails to direct our attention to any evidence of

“diminished mental capacity” in the record and fails to explain how re-administration of

the Miranda warnings created “confusing references” that resulted in an involuntary

waiver. After reviewing the record and the recorded statement, we agree with the trial

court’s conclusion that the appellant’s waiver was voluntary. The trial court did not abuse

its discretion in denying the appellant’s motion to suppress. Point of error ten is

overruled.




       20
            Cross v. State, 144 S.W.3d 521, 529 (Tex. Cr. App. 2004).
                                                                                              WILKINS --15

                                     IV. GUILT PHASE JURY CHARGE

        In his eighth point of error, the appellant argues that the trial court erred in failing

to instruct the jury on a lesser-included offense. He argues on appeal that he was entitled

to an instruction on the lesser-included offense of “felony murder” 21 “[b]ecause it would

have been within the jury’s authority to determine from the testimony that Mike Silva

may have been intentionally killed by appellant after Willie Freeman was shot by

appellant in an unintentional killing.” The appellant argued at trial, however, that he was

entitled to an instruction on the lesser-included offense of “murder” 22 because “the jury

could conclude … that the offense causing the death of Willie Freeman [and] causing the

death of Mike Silva were not committed in the same criminal transaction or, in fact, by

the same individual.”

        We use a two-prong test to determine whether the appellant was entitled to a

charge on a lesser-included offense: “First, the lesser-included offense must be included

within the proof necessary to establish the offense charged. Second, there must be some

evidence in the record that would permit a rational jury to find that if the defendant is

guilty, he is guilty only of the lesser-included offense.” 23




        21
             See T EX . P EN AL C O D E §19.02 (b)(3).

        22
             See T EX . P EN AL C O D E §19.02 (b)(1).

        23
           Smith v. State, 297 S.W.3d 260, 274 (Tex. Cr. App. 2009); Rousseau v. State, 855 S.W .2d 666, 672
(Tex. Cr. App. 1993).
                                                                                                    WILKINS --16

         The State argues that the appellant has failed to preserve his complaint for

review,24 that “felony murder is not a lesser-included offense of capital murder as charged

in the indictment,” and that “the record is wholly devoid of any evidence to support

Appellant’s assertion that he might have intentionally killed Silva after he unintentionally

killed Freeman.” Without addressing the State’s first two arguments, we note simply that

the Appellant has neglected to cite any evidence whatsoever that he killed Freeman

unintentionally or that the murders of Freeman and Silva were not committed in the same

transaction or by the same individual. The appellant has therefore failed to present any

evidence supporting the second prong of the test under either of his theories. The trial

court did not err in refusing the requested instruction. Point of error eight is overruled.

                                 V. PUNISHMENT PHASE EVIDENCE

         In his third point of error, the appellant argues that the trial court erred in

permitting the State to introduce expert testimony interpreting the meaning of the

appellant’s tattoos without providing pretrial notice of such testimony pursuant to Rule of

Evidence 404(b). In his fourth point of error, the appellant argues that the trial court erred

in denying his motion to exclude the expert testimony under Rule of Evidence 403. In his

fifth point of error, the appellant argues that the trial court erred in denying his motion for

a continuance to allow him time to secure his own symbolism expert.


         24
            See T EX R. A PP . P RO C . 33.1(a)(1)(A) (“As a prerequisite to presenting a complaint for appellate review,
the record must show that … the complaint was made to the trial court by a timely request, objection, or motion that
… stated the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to
make the trial court aware of the complaint, unless the specific grounds were apparent from the context ….”).
                                                                                                     WILKINS --17

           Article 37.071, Section 2(a)(1) of the Code of Criminal Procedure allows the

parties to present evidence during the punishment phase of a capital trial “as to any matter

that the court deems relevant to sentence, including evidence of the defendant’s

background or character or the circumstances of the offense that mitigates against the

imposition of the death penalty.” The State need provide the defendant with pretrial

notice of its intent to introduce such evidence only when it involves “extraneous

conduct”: “The introduction of evidence of extraneous conduct is governed by the notice

requirements of Section 3(g), Article 37.07.” 25 Article 37.07, Section 3(g) requires, “On

timely request of the defendant, notice of intent to introduce evidence under this article

shall be given in the same manner required by Rule 404(b), Texas Rules of Evidence.”

Rule 404(b), in turn, provides substantive and procedural limitations on the admission of

certain types of character evidence:

           Evidence of other crimes, wrongs, or acts is not admissible to prove the
           character of a person in order to show action in conformity therewith. It
           may, however, be admissible for other purposes, such as proof of motive,
           opportunity, intent, preparation, plan, knowledge, identity, or absence of
           mistake or accident, provided that upon timely request by the accused in a
           criminal case, reasonable notice is given in advance of trial of intent to
           introduce in the State’s case-in-chief such evidence other than that arising
           in the same transaction.

           In this case the appellant made a timely request for such Rule 404(b) notice. In

response, the State provided notice of its intent to introduce evidence proving, inter alia,



           25
                This notice provision became effective on September 1, 2005. See Act of June 17, 2005, 79 th Leg., R.S.,
ch. 399.
                                                                                            WILKINS --18

“that the Defendant is an admitted member or associate of the Confederate Hammerskins

and is a Satanist.” At trial, the appellant objected before the testimony of expert witness

Deputy Richard Almendariz. The appellant argued that the State did not provide notice

that it intended to prove these matters by introducing Almendariz’s expert testimony

interpreting symbols in the appellant’s tattoos 26 :

        [The notice] [d]oesn’t mention anything about any tattoos of symbols or any
        interpretation of any symbols. If they have someone who’s going to come in
        and say that … the defendant has admitted membership in the Confederate
        Hammerskins or admitted association with the Confederate Hammerskins,
        then I suppose they could possibly do so if they have this person on their
        witness list. But this requires an interpretation of this officer. And the
        reason we are entitled to notice is if they said, we’re going to offer evidence
        of tattoos that show such and such, that we might secure an expert to have a
        different opinion about the interpretation of some artwork on the
        defendant’s body. We’re not prepared to do so. It’s not in the notice. And so
        we object to it.

        The trial court denied the appellant’s objection, and Almendariz testified about the

symbols in the appellant’s tattoos.

        Laying aside the questions of (1) whether the notice provided by the State was

sufficiently detailed to comply with Rule 404(b), and (2) whether the State was even

required to give notice of these matters as “extraneous conduct” under Article 37.071, we

find that the appellant has not demonstrated harm from any error. Under Rule of

Appellate Procedure 44.2(b), we disregard non-constitutional errors that do not affect




        26
            Among other symbols, the appellant’s numerous tattoos incorporated common satanic symbols,
swastikas, and a life-size visage of Adolf Hitler.
                                                                                                    WILKINS --19

substantial rights.27 Rather than analyze the harm from Almendariz’s substantive

testimony, we look only at the harm that may have been caused by the lack of notice and

the effect that the lack of notice had on the appellant’s ability to mount an adequate

defense.28

         Almendariz testified that the appellant’s tattoos contained Satanic, Confederate

Hammerskin, skinhead, white supremacist, and Nazi symbols. However, Almendariz did

not testify about any of the specific beliefs or activities of any of these groups or

ideologies. The appellant testified that he was not a Satanist “per se” or a member of the

Confederate Hammerskins. He testified instead that his various tattoos were either

remnants from his youth in the Dirty South Nazis gang or were “mostly hype” to keep

other prison inmates away from him.

         Rather than disputing Almendariz’s opinion on Satanic and Nazi symbolism, the

appellant’s trial strategy was to explain why he had the tattoos, and to correct the record

with respect to which Nazi gang he was in. Given the limited nature of Almendariz’s

testimony and the appellant’s strategy,29 we do not find that the appellant’s ability to




         27
              See McDonald v. State, 179 S.W .3d 571, 578 (Tex. Cr. App. 2005) (applying Rule 44.2(b) harm analysis
where evidence of uncharged misconduct was admitted without notice).

         28
            Id. In his brief harm analysis, the appellant fails to address any harm from lack of notice, but instead only
alleges harm arising from the substance of Almendariz’s testimony.

         29
              See McDonald, 179 S.W.3d, at 578-79 (analyzing trial strategy to determine harm from lack of notice).
                                                                                                   WILKINS --20

mount an adequate defense was affected by any lack of specificity in the State’s notice.

Point of error three is overruled.

        In his fourth point of error, the appellant argues that the trial court erred in

admitting Almendariz’s testimony over his objection that the evidence was more

prejudicial than probative.30 However, the appellant did not object at trial under Rule

403.31 Because the appellant’s argument on appeal does not comport with his objection at

trial, he has failed to preserve it for our review.32 Point of error four is overruled.

        In his fifth point of error, the appellant argues that the trial court erred in denying

his oral motion for a continuance to allow him to obtain his own symbolism expert.

Article 29.03 of the Code of Criminal Procedure allows a criminal action to be continued

“on the written motion of the State or of the defendant.” If a party makes an oral motion

for continuance and the trial court denies it, the party forfeits the right to complain about

the trial court’s ruling on appeal.33 The record in this case contains no written motion for

continuance. Point of error five is overruled.




        30
             See T EX . R. E VID . 403.

        31
             The appellant objected to the admission of specific tattoo photos under Rule 403, but did not object to
Almendariz’s testimony on that basis.

        32
             See T EX . R. A PP . P. 33.1(a).

        33
             Anderson v. State, 301 S.W .3d 276, 278-79 (Tex. Cr. App. 2009).
                                                                                 WILKINS --21

      VI. CONSTITUTIONAL OBJECTIONS TO SENTENCING PROCEDURES

       In his ninth point of error, the appellant argues that the trial court erred in denying

his “motion to preclude the imposition of the death penalty on grounds that there was no

grand jury review of the death penalty eligibility factors in his case.” We have previously

decided this issue adversely to the appellant.34 Point of error nine is overruled.

       In his eleventh point of error, the appellant argues that Article 37.071, Section

2(d)(2) of the Code of Criminal Procedure, commonly known as the “10-12 Rule,” is in

violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments to the Federal

Constitution. We have previously decided this issue adversely to the appellant.35 Point of

error eleven is overruled.

       In his twelfth point of error, the appellant argues that the Texas death-penalty

scheme is unconstitutional because it fails to place the burden of proof on the State to

prove the absence of mitigation beyond a reasonable doubt. We have previously decided

this issue adversely to the appellant.36 Point of error twelve is overruled.

       In his thirteenth point of error, the appellant argues that the trial court erred in

failing to instruct the jury that the State had to prove that the aggravating evidence

outweighed the mitigating evidence. We have previously held that the mitigation special



       34
            See Renteria v. State, 206 S.W .3d 689, 709 (Tex. Cr. App. 2006) .

       35
            See Russeau v. State, 171 S.W.3d 871, 886 (Tex. Cr. App. 2005).

       36
            See Escamilla, 143 S.W .3d, at 828.
                                                                                                    WILKINS --22

issue is a defensive issue on which the State has no burden of proof.37 Point of error

thirteen is overruled.

         In his fourteenth point of error, the appellant argues that the Texas death penalty

scheme is unconstitutional because it fails to require the jury to consider mitigation.

Specifically, he argues that the jury instructions should require jurors to “consider

mitigation, not consider whether there is sufficient mitigating evidence to warrant a life

sentence.” The appellant fails to present any argument or authority supporting the

constitutional significance of this distinction.38 Point of error fourteen is overruled.

         In his fifteenth point of error, the appellant argues that the trial court erred in

failing to instruct the jury that if a single juror “holds out” for life, the appellant would

receive a life sentence. We have previously decided this issue adversely to the appellant.39

Point of error fifteen is overruled.

         Finally, in his sixteenth point of error, the appellant argues that the Texas death

penalty scheme is unconstitutional because jurors are not given a definition for the term




         37
              See Williams v. State, 273 S.W.3d 200, 221-22 (Tex. Cr. App. 2008).

         38
           See T EX . R. A PP . P. 38.1(i) (“The brief must contain a clear and concise argument for the contentions
made, with appropriate citations to authorities and to the record.”).

         39
              See Shannon v. State, 942 S.W .2d 591, 600-01 (Tex. Cr. App. 1996) .
                                                                           WILKINS --23

“mitigating circumstances.” We have previously decided this issue adversely to the

appellant.40 Point of error sixteen is overruled.

       We affirm the judgment of the trial court.




Delivered October 20, 2010.
Do not publish.




       40
            See Ladd v. State, 3 S.W .3d 547, 574 (Tex. Cr. App. 1999) .
