              IN THE COURT OF CRIMINAL APPEALS
                          OF TEXAS

                                         NO. AP-75,796

                                  SELWYN DAVIS, Appellant

                                                 v.

                                   THE STATE OF TEXAS

             ON DIRECT APPEAL FROM CAUSE NO. D-1-DC-06-904119
                   IN THE 390 TH JUDICIAL DISTRICT COURT
                                TRAVIS COUNTY

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

       In October 2007, a jury convicted appellant of capital murder.1 Based on the jury’s answers

to the special issues,2 the trial judge sentenced appellant to death.3 Direct appeal to this Court is



       1
         See TEX . PENAL CODE § 19.03(a)(2) (“A person commits an offense if the person commits
murder as defined under Section 19.02(b)(1) and . . . the person intentionally commits the murder
in the course of committing or attempting to commit . . . burglary.”).
       2
         See TEX . CODE CRIM . PROC. art. 37.071, § 2(b), (e). Unless otherwise indicated, all further
references to articles are to the Texas Code of Criminal Procedure.
       3
           Art. 37.071, § 2(g).
                                                                                          DAVIS – 2

automatic.4 After reviewing appellant’s twenty-six points of error, we find them to be without merit.

Consequently, we affirm the trial court’s judgment and sentence of death.

                                       I. BACKGROUND

       On August 22, 2006, appellant entered an apartment without permission through a window

and waited for the occupants to return home. The apartment belonged to Regina Lara, who was the

mother of appellant’s estranged girlfriend, Linda Martinez. Linda’s fifteen-year-old daughter, R.M,

who lived with Regina, received a ride home from school that day from her aunt, Veronica Lara.

When the pair returned to the apartment, R.M. first noticed that her grandmother’s cat was missing

and then found appellant in her bedroom, but she was too frightened to call out or say anything to

her aunt about appellant being in the apartment. Appellant told R.M. that her mother had been

beaten by a group of men, and when Veronica left, appellant sexually assaulted R.M. Appellant then

instructed R.M. to stay in her room until her grandmother returned home.

       When Regina returned home approximately an hour later, R.M. met her in the living room.

R.M. did not see appellant anywhere in the apartment. Regina told R.M. that appellant had assaulted

her mother and that she was hospitalized. A short time later, R.M. went to the kitchen for a glass

of water and noticed that two knives were missing. Worried, she stepped into the hallway outside

the apartment to receive better cell phone reception in order to call Veronica. R.M. told Veronica

that she was concerned appellant could still be in the apartment and asked her to return to the

apartment. Regina stepped into the hallway and told R.M. to come back inside the apartment. Still

worried, R.M. asked her grandmother not to go back inside. Regina, however, went back inside the

apartment. Several seconds later, R.M. heard Regina scream. R.M. ran to a nearby convenience


       4
           Art. 37.071, § 2(h).
                                                                                          DAVIS – 3

store to safely call the police.

        Appellant attacked Regina and stabbed her several times. She suffered a fractured voice box

as a result of strangulation and a fractured skull from a blow to her head. Regina died from multiple

stab wounds to the heart.

        Appellant fled the scene in Regina’s van. He drove to a nearby shopping center, where he

entered a Ross Department Store. Sarah Spanier, a friend of Linda Martinez, called 9-1-1 to report

that appellant was in the department store, bloody, bandaged, and “not acting right.” While there,

appellant purchased new clothes and changed into them. Officers later found appellant’s discarded

clothing and Regina’s checkbook in the dressing room he used at the department store.

        Spanier followed appellant out of Ross and informed the 9-1-1 operator that appellant had

walked into a nearby Target. Several officers, including Officers Robert Broomhall and Robert

Caudill, went to the Target store. Upon entering the store, Broomhall quickly located appellant near

the electronics department. Broomhall and Caudill were the first officers to approach appellant, and

they directed him to turn around and raise his hands. When appellant did not follow the officers’

directions, Caudill forced appellant to the ground. Appellant struggled briefly but was quickly

subdued and handcuffed. As officers walked appellant to a police car, appellant broke away and

attempted to run. Officers quickly apprehended appellant and placed him in the back seat of a police

car.

        Officer Caudill and Officer Corey Wroblewski transported appellant to Brackenridge

Hospital, where he was treated for cuts on his arm and face. Homicide Detective Rogelio Sanchez
                                                                                            DAVIS – 4

read Article 38.22 warnings5 to appellant at the hospital. The officers subsequently transported

appellant to the police station’s homicide division, where he was interviewed. The administration

of warnings at the hospital and the interview at the station were electronically recorded (audio only

at the hospital, audio and video at the station).

                                              II. GUILT

                                          A. Batson Claim

        In point of error four,6 appellant contends that the trial court erred in denying a Batson7

challenge to the State’s peremptory strike of prospective juror Mays, an African-American.

Appellant claims that the “defense rebutted the prosecutor’s race-neutral rationale, leaving only the

impermissible rationale for Mays’ removal.”

        Batson provides a three-step process for a trial court to use in adjudicating a claim that a

peremptory challenge was based on race: First, “a defendant must make a prima facie showing that

a peremptory challenge has been exercised on the basis of race.”8 Second, “if that showing has been

made, the prosecution must offer a race-neutral basis for striking the juror in question.”9 Finally, “in

light of the parties’ submissions, the trial court must determine whether the defendant has shown




        5
            See Art. 38.22, §2(a)(1)-(5); see also Miranda v. Arizona, 384 U.S. 436 (1966).
       6
          Appellant failed to number the points of error presented in his brief. In its brief, the State
numbered the points of error in the order presented within appellant’s brief. We will do the same
for the sake of clarity.
        7
            Batson v. Kentucky, 476 U.S. 79 (1986).
        8
            Snyder v. Louisiana, 552 U.S. 472, 476 (2008).
        9
            Id. at 476-77.
                                                                                             DAVIS – 5

purposeful discrimination.”10

        A trial court’s ruling on the issue of discriminatory intent must be sustained unless it is

clearly erroneous.11 The trial court’s role in evaluating Batson claims is pivotal.12 Often the best

evidence of discriminatory intent is the demeanor of the prosecutor exercising the challenge.13

Additionally, race-neutral reasons for peremptory challenges often turn on aspects of a venire

member’s demeanor, such as nervousness or inattention, causing the trial court’s observations to be

even more important.14

        The record reflects that prospective juror Mays arrived at the courtroom late for voir dire.

Before Mays entered the courtroom, the trial court set out the basic facts surrounding her late arrival:

        For the record, Ms. Mays came into the courthouse this morning. She was carrying
        – evidently she has a little pocket knife for protection or a knife for protection. The
        deputies saw it and sent her out. They wouldn’t let her leave it. They sent her away,
        so she went home. A constable went out to find her. We called her work. We’ve
        been tracking her down, so she is now here.

        Before her individual voir dire, the trial court asked Mays, “I’ve already put on the record that

you were here this morning, but you were turned away by the deputies downstairs. Is that right?”

Mays responded, “Uh-huh.” The prosecutor then proceeded with individual voir dire. When the

prosecutor was done, defense counsel had no questions. After Mays was asked to step outside the

courtroom, the trial court asked the parties’ whether they had any challenges. Neither party


        10
             Id. at 477.
        11
             Id.; Gibson v. State, 144 S.W.3d 530, 534 (Tex. Crim. App. 2004).
        12
             Snyder, 552 U.S. at 477.
        13
             Id.
        14
             Id.
                                                                                            DAVIS – 6

challenged Mays for cause, but the State chose to exercise a peremptory strike.

       When defense counsel raised a Batson objection, the prosecutor offered several race-neutral

reasons for the strike:

       Number one is what the court put on the record is that when she came to court
       originally with that knife, the people at the front door gave her the opportunity to, you
       know, either turn around and leave or leave the knife outside and come in. And
       instead of notifying the court or putting the knife down somewhere and coming in,
       she just disappeared. We couldn’t find her. The court had to send out a constable
       to get her. She was due at 10:00 this morning. We came back at 1:00, and she had
       been obtained from somewhere by the constable’s office.

       When she came in, she appeared to me to have a little bit – I don’t know if it was
       hostility or annoyance or what at being brought back down here. She did seem to –
       I think that she calmed down a bit. But I had the impression when she came in that
       she would hold that against the State at some point.

       When I asked her – in addition . . . when I was going through the questions with her
       whether if the State proved the elements of capital murder to her beyond a reasonable
       doubt, would she be able to find someone guilty of capital murder, and there was a
       long pause. And then she finally said, yeah, I could.

       The other thing that gave me pause was when I asked her if the death penalty would
       ever be appropriate. She answered the questions in the questionnaire that wen[t] –
       number 99, “Do you believe in the death penalty?” And she said it wasn’t applicable.
       And she did say it was because she just hadn’t thought about it.

       But then when I asked her whether she ever could think of an instance where the
       death penalty would ever be appropriate, she said first, “I want to say no.” And then
       she thought a little bit about it and she said, “Well, I guess I could think of one.”

       She said that the death penalty would be appropriate for somebody who continues to
       kill. In her questionnaire when she answered number 106, she said, “Life in prison
       is more appropriate for someone convicted of capital murder when they continue to
       do the same act.” When I asked her about that here on the stand, she said, “Yes, if
       they continue to kill.”

       So it has nothing to do with her race or her sex or anything else.

       She has said that she would consider the death penalty for somebody who continued
       to kill. And then at first she would – she said she wanted to say no about the death
       penalty, and then finally said, “Well, if they continue to kill.”
                                                                                            DAVIS – 7


       So for those reasons, we have moved to strike her.

       The record also shows that, before accepting juror Vana, the trial court thanked him for

“waiting.” “The juror before you did not come in,” the trial court said, “and we had to send a

constable out to get her.” The prospective juror that had to be retrieved was Mays, who had by then

arrived.

       Defense counsel responded that there was no evidence before the trial court about what

“really happened” when Mays was denied entry to the courthouse. Counsel stated that there was

“some hearsay back and forth about what happened down there.” Counsel pointed out that the State

had not actually questioned Mays regarding the events and her feelings about the situation. Counsel

asserted that Mays’s answers to the prosecutor’s questions showed that she wanted to understand and

be sure because she had never considered the issues before. After considering the State’s reasons

and defense counsel’s response, the trial court overruled the Batson challenge, stating, “The court

finds that the State’s reasons, based on the demeanor of the potential juror, are racially neutral.”

       Defense counsel faulted the prosecutor at trial for failing to question Mays about the events

surrounding her late arrival to the courthouse, but neither did defense counsel question Mays about

those events. Nor did defense counsel introduce any other “nonhearsay” testimony regarding those

events. We have no reason to disbelieve the descriptions of events given by the trial court and the

prosecutor, and more importantly, we have no reason to doubt the prosecutor’s belief in those

descriptions. The trial court was in a position to evaluate the demeanor of both the prosecutor and

the prospective juror. Given defense counsel’s failure to question Mays, we cannot agree with

appellant’s contention that the defense rebutted the prosecutor’s rationale for the strike to the degree

required to overturn the trial court’s ruling. Because there was ample support in the record for
                                                                                               DAVIS – 8

concluding that the prosecutor had race-neutral reasons for exercising the strike, we conclude that

the trial court’s ruling was not clearly erroneous. Point of error four is overruled.

                          B. Diminished Capacity/Intoxication Defense

                                              1. Evidence

       In his first point of error, appellant alleges that the trial court erred in denying his request “to

introduce evidence of an affirmative defense of diminished capacity.” During the guilt phase,

appellant attempted to present the testimony of psychiatrist Dr. Susan Stone about appellant’s

substance abuse and the effect it had on him.15 He sought to use this testimony to negate the mens

rea of the underlying offense of burglary. On appeal, appellant argues that Dr. Stone’s testimony

would have shown that appellant did not intentionally commit burglary because he believed that he

had permission to be in Regina’s home.

       Near the close of the State’s case, defense counsel reminded the trial court that the defense

wished to present Dr. Stone’s testimony regarding diminished capacity and requested that the trial

court make a ruling in advance. The trial court asked the defense to make a proffer of what the

testimony would entail. Defense counsel explained:

       In general, Your Honor, I believe the testimony of Dr. Stone would have to do with
       the effects of cocaine use, crack cocaine use, and how those effects could relate to the
       ability for a person to form intent, relate to the ability in terms to control impulse, the
       ability in terms of inhibition reduction and that would relate to the –

At that point, the trial court stopped defense counsel, and the following exchange took place:

       The Court:              This is my problem – go ahead.

       [Defense Counsel]:      And mental illness.



       15
            Dr. Stone had interviewed appellant and reviewed his records.
                                                                                            DAVIS – 9

        The Court:              What mental illness?

        [Defense Counsel]:      That’s what she would be testifying to.

        The Court:              But what mental illness? Unrelated to the cocaine?
                                Unrelated to the cocaine? Because everything I’m seeing –

        [Defense Counsel]:      There is prior medical testimony about schizophrenia in his
                                family.

        The Court:              No. Him, specifically with him.

        [Defense Counsel]:      It would be about the drug abuse.

The trial court ruled: “These cases are squarely on point with mental illness, mental health issues

where drug – voluntary drug use has nothing to do with it. I will not let that evidence in.”

        There is no such thing as an “affirmative defense of diminished capacity” in Texas (other

than insanity),16 but evidence of a mental disease or defect may be relevant and admissible to rebut

or disprove the defendant’s culpable mens rea.17 The present case, however, involves the question

of voluntary intoxication, which is governed by a specific statute.

        Penal Code § 8.04(a) provides: “Voluntary intoxication does not constitute a defense to the

commission of crime.”18 Intoxication is further defined as a “disturbance of mental or physical

capacity resulting from the introduction of any substance into the body.”19 In Ramos v. State, we

construed this statute as prohibiting any attempt to use intoxication to rebut or disprove a defendant’s



        16
             Ruffin v. State, 270 S.W.3d 586, 593 (Tex. Crim. App. 2008).
        17
           Id. at 594. Such evidence may, in a particular case, be excluded under other evidentiary
rules, such as Texas Rule of Evidence 403. Id. at 595.
        18
         T    EX . PENAL CODE   § 8.04(a).
        19
             Id., § 8.04(d).
                                                                                           DAVIS – 10

mens rea.20 In that case, as in this one, the defendant contended that “he was intoxicated to such an

extent, that he failed to have the requisite intent necessary to commit a burglary.”21 We held that the

defendant’s contention was contrary to longstanding Texas law that was recodified by § 8.04 of the

Penal Code.22 We relied upon Ramos and the statute in subsequent cases to reject legal sufficiency

claims based upon intoxication,23 and we explained in Skinner v. State that “Texas Penal Code §

8.04(a) bars the use of evidence of voluntary intoxication to negate the culpable mental state of a

crime.”24

       Because Dr. Stone’s testimony was proffered at the guilt stage of trial25 to show that

appellant’s intoxication from cocaine use prevented him from forming the applicable mens rea, the

evidence was inadmissible.26 Point of error one is overruled.


       20
             547 S.W.2d 33, 33-34 (Tex. Crim. App. 1977).
       21
             Id. at 33.
       22
             Id. at 33-34, 34 n.2.
       23
         Tijerina v. State, 578 S.W.2d 415 , 416-17 (Tex. Crim. App. 1979); Hawkins v. State, 605
S.W.2d 586, 588-89 (Tex. Crim. App. 1980). See also Rojas v. State, 986 S.W.2d 241, 247 (Tex.
Crim. App. 1998)(“argument that [the defendant’s] intoxication made him incapable of forming the
necessary intent is not viable under a legal or factual sufficiency analysis”).
        24
             956 S.W.2d 532, 543 (Tex. Crim. App. 1997).
       25
         Evidence of intoxication may be introduced at the punishment stage of trial under certain
circumstances. TEX . PEN . CODE § 8.04(b), (c).
        26
            In part of his argument, appellant relies upon the United States Constitution’s due process
right to have “a meaningful opportunity to present a complete defense.” He acknowledges this right
as qualified by the requirement that the evidence be relevant and not excluded by an established
evidentiary rule. In enacting § 8.04, the legislature statutorily barred the use of evidence of
intoxication to rebut a defendant’s mental culpability. Appellant never mentions § 8.04 in any
portion of his argument, and our reading of his argument suggests that he is not attempting to claim
that a statute or evidentiary rule is unconstitutional. Rather, appellant simply appears to be claiming
                                                                                          (continued...)
                                                                                             DAVIS – 11

                                          2. Jury Instruction

       In point of error nine, appellant alleges that the trial court erred in failing to properly instruct

the jury at the guilt phase of trial regarding voluntary intoxication. Appellant complains that he

“requested an instruction on voluntary intoxication’s effect upon modifying the knowing and

intentional performance of the elements of the offense that make the case a capital murder.”

Incorporating by reference his discussion contained in point of error one, appellant argues that an

instruction should have been given because some evidence of his intoxication was presented through

his confession and through lay witnesses.

       During discussions regarding the jury charge, defense counsel stated:

       [T]he defense has not made a request for a charge which clarifies, in our view, the
       law that voluntary intoxication is not a defense as in affirmative defense, insanity,
       self-defense, et cetera, and that the State is still required to show the requisite mens
       rea, and more importantly I think in a capital murder case than any other case, in that
       voluntary intoxication may, in fact, affect a person’s ability to form certain intent.
       In other words, the murder, regardless of how intoxicated, if intentionally committed,
       there is no defense there.

       However, if you have elements and prerequisites to the murder becoming a capital
       murder, that voluntary intoxication could go to and is appropriate to consider whether
       or not there’s a knowing and intentional performance of the elements of the offense
       that make it a capital murder.

       That’s about as unclear as it could be, but I think the court understood when I’m
       making it. So it’s simply we’re not making the request for the charge to be changed;
       we simply are going to argue that point and make reference to the court’s charge.


       26
          (...continued)
that Dr. Stone’s testimony was admissible because it was relevant and no rule of evidence required
its exclusion. Appellant’s contention is incorrect because the evidence was rendered legally
irrelevant by § 8.04. Even if appellant’s argument were construed as a challenge to the
constitutionality of the statute, however, the challenge would be without merit. Montana v. Egelhoff,
518 U.S. 37 (1996) (upholding the constitutionality of statute that provided that voluntary
intoxication “may not be taken into consideration in determining the existence of a mental state
which is an element of [a criminal] offense”) (bracketed material in Egelhoff).
                                                                                            DAVIS – 12

          Fair enough?

The trial court asked defense counsel whether he wanted a ruling, and defense counsel replied, “You

did indicate you would deny it.” Defense counsel continued, “And on that basis, we are not making

a formal request for the charge. What we’re doing is we’re going to argue based on the charge as

it is.”

          The above colloquy shows that appellant refrained from making an objection and did not

obtain a ruling from the trial court. We need not decide whether the appellate complaint before us

involves an alleged defensive issue, which would be forfeited entirely by appellant’s failure to

object,27 or an alleged defect in the instructions regarding the elements of the offense, which would

relegate any error to an analysis under the egregious harm standard.28 No error occurred here.

          With respect to intoxication, the trial court instructed the jury: “Voluntary intoxication does

not constitute a defense to the commission of a crime. Intoxication means disturbance of mental or

physical capacity resulting from the introduction of any substance into the body.” This instruction

conforms to Penal Code § 8.04. We have already explained, in connection with appellant’s first

point of error, that § 8.04 bars a defendant from using evidence of intoxication to challenge his

culpable mental state. The trial court gave a proper instruction that says the exact opposite of what

appellant now claims he should have received.

          Even absent § 8.04, however, appellant would still not be entitled to an instruction. No

statute authorizes a defense of intoxication, or a special instruction on the mitigating value of

intoxication, with respect to the guilt phase of trial in a capital murder case, nor does any statute


          27
               Posey v. State, 966 S.W.2d 57, 61-63 (Tex. Crim. App. 1998).
          28
               Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985).
                                                                                           DAVIS – 13

make the absence of intoxication an element of the offense of capital murder. Absent a statute

falling into one of those categories, any instruction suggesting that intoxication can be a defense to

a crime would be improper and would constitute a comment on the weight of the evidence.29 Point

of error nine is overruled.

                                      C. Autopsy Photograph

       In point of error six, appellant claims that the trial court erroneously admitted an autopsy

photograph of the victim’s tongue. At trial, appellant complained that the photograph did “not go

to the cause of death.” Defense counsel argued that the injuries shown could have occurred “if the

ambulance hit a bump in the road” and that “the way it’s shown, ripped out of her face and a separate

organ, that this is prejudicial and inflammatory in terms of the cause of death.” On appeal, appellant

contends that the evidence was admitted in violation of Texas Rule of Evidence 403 because “the

gruesomeness of this display far outweighs any probative value the evidence might have presented.”

       Rule 403 provides:

       Although relevant, evidence may be excluded if its probative value 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.30

A court may consider many factors in determining whether the probative value of photographs is

substantially outweighed by the danger of unfair prejudice, including: the number of exhibits offered,

their gruesomeness, their detail, their size, whether they are in color or black-and-white, whether they



       29
           Solomon v. State, 49 S.W.3d 356, 368 (Tex. Crim. App. 2001) (requested instruction on
independent impulse); Giesberg v. State, 984 S.W.2d 245, 250 (Tex. Crim. App. 1998) (requested
instruction on alibi).
       30
         T   EX . R. EVID .   403.
                                                                                         DAVIS – 14

are close up, whether the body depicted is clothed or naked, the availability of other means of proof,

and other circumstances unique to the individual case.31 The admissibility of photographs over an

objection is within the sound discretion of the trial court.32 Autopsy photographs are generally

admissible unless they depict mutilation of the victim caused by the autopsy itself.33

       State’s Exhibit 139 is a photograph of a cross-section of the victim’s tongue which shows

hemorrhaging within the tongue. Dr. David Dolinak, the chief medical examiner for Travis County,

explained that in the photograph, it looked like the victim had recently bitten her tongue. The

bruising, as described by Dr. Dolinak, was deep in the middle part of her tongue and indicated a

significant bite. He elaborated that bruising of that nature was commonly present when “somebody

has either sustained impact injury of the head or the neck or been strangled. Any time somebody is

under duress [or] stress, and force is applied around the jaw or the head, we can see that.” Dr.

Dolinak stated that while the damage could have resulted from a ligature or a blow to the head, he

really “couldn’t say.”

       In order to view the deep bruising inside the victim’s tongue, it was necessary that the tongue

be cross-sectioned. While Dr. Dolinak did testify that he “couldn’t say” that the hemorrhage

occurred during the course of the offense, he also testified that such damage is most commonly

caused by strangulation or an impact injury to the head or neck. The victim suffered both of these

types of injuries. The photograph itself is not excessively gruesome and was necessary to show an



       31
         Santellan v. State, 939 S.W.2d 155, 172 (Tex. Crim. App. 1997); Long v. State, 823
S.W.2d 259, 272 (Tex. Crim. App. 1991).
       32
            Sonnier v. State, 913 S.W.2d 511, 518 (Tex. Crim. App. 1995).
       33
            Santellan, 939 S.W.2d at 172.
                                                                                       DAVIS – 15

injury not otherwise visible.

       Considering all factors, we conclude that the trial court did not abuse its discretion in

determining that the probative value of the photograph was not substantially outweighed by its

prejudicial effect. Point of error six is overruled.

                                           D. Confession

                                           1. Background

       After committing the offense, appellant fled to a nearby shopping center, where he was

apprehended. Officer Doug Perales, who was involved in appellant’s apprehension, was not able

to detect that appellant was intoxicated. Officer Wroblewski did not notice that appellant was

intoxicated at the time he was apprehended and did not recall appellant appearing like someone who

had used crack cocaine or was intoxicated from crack cocaine. According to Officer Broomhall,

appellant was very calm and did not smell of alcohol. Broomhall recalled that appellant became

more agitated once he was placed into the back seat of the patrol car.

       Homicide detective Frank Rodriguez briefly spoke with appellant while he was waiting in

the patrol car. Rodriguez checked appellant’s injuries, gave appellant water, and called EMS.

Rodriguez described appellant as being in an excited state. Rodriguez attributed appellant’s state

to the recent events and the offense because appellant did not smell of alcohol and did not appear

to have been using crack cocaine.

       Officers Caudill and Wroblewski transported appellant to the emergency room at

Brackenridge Hospital where he was treated for cuts on his arm and face. Homicide detective

Rogelio Sanchez arrived at the hospital and read appellant his Article 38.22 warnings from the

“standard blue card.” Appellant asked the detective to “slow down” because appellant felt that they
                                                                                        DAVIS – 16

“had all the time in the world.” Appellant explained: “I don’t like the vibes I’m getting from you.

I just want you to, you know, relax with me because I’m gonna be trying to feel everything you got

inside you, because I’m my own person and I’m gonna be at ease at all times.” Detective Sanchez

explained that he was trying to expedite the reading of warnings because hospital personnel were

ready to stitch appellant up. Appellant replied, “I know my rights, get to your questions.” Detective

Sanchez then read each of the warnings, one at a time, and asked appellant after each whether he

understood the warning in question. Each time, appellant indicated that he understood. Detective

Rodriguez, who was also present, observed that appellant seemed agitated when the warnings were

read to him. After the warnings were read, Detective Sanchez asked, “Now after you get through

being tended here at the hospital, I’d like to take you over to the homicide office for an interview.

Is that – is that fine with you? Yes or no?” Appellant replied, “That’s fine.” Detective Sanchez also

informed appellant that he had two outstanding warrants for which he was being arrested.

       Detective Sanchez described appellant as conscious, alert, talkative, loud, and receptive to

questions. Sanchez did not consider appellant’s loudness to be inappropriate; he believed “that was

[appellant’s] personality.” Officer Caudill, who was also present, described appellant as calm, given

the circumstances, and he interpreted appellant’s demeanor as somewhat arrogant. Detective

Rodriguez observed that appellant’s demeanor vacillated between one of cooperation and that of

being upset or mad. He also described appellant as receptive to questioning. According to Detective

Sanchez, appellant showed no signs of being intoxicated or under the influence of any substances.

Appellant’s eyes were not bloodshot, and his speech was not slurred.

       After appellant received local anesthesia and stitches for his injuries, Officers Wroblewski

and Caudill transported him to the homicide division where he was placed in a small interview room
                                                                                           DAVIS – 17

without handcuffs. Appellant was given a Dr. Pepper and was left alone in the room for

approximately thirteen minutes. About five minutes after the officers left, appellant put on his shoes.

A minute later, he moved his chair and lay down on the floor. About four minutes later, he got up,

walked around, and turned the light off. In the next couple of minutes, he turned the lights on and

off again several times.

        At about 11:27 p.m., appellant turned the light on, raised his arms in the air, and said, among

other things, “I thought we were having a [sic] interrogation. Seems like the silent treatment to me.”

Within a minute, Detectives Sanchez and Rodriguez joined appellant in the interview room.

Appellant asked the detectives if they were going to play good cop/bad cop. Detective Sanchez

replied, “I don’t play that game.” Appellant then asked if the detectives were going to question him

consecutively, and Detective Sanchez responded, “No.” Appellant then asked Detective Sanchez

if he was the “lead detective.” Detective Sanchez replied, “No,” and appellant then asked, “So why

am I talking to you?” Detective Sanchez then responded, “I am the lead detective.” Appellant

replied, “You just said no you weren’t though.” Detective Sanchez responded, “I am, okay. What

– what I’m not doing is playing games, okay?”

        Soon after this discussion, appellant asked to smoke a cigarette. Detective Sanchez

responded that no smoking was permitted in the interview room. Appellant said, “Can you take me

somewhere where I could smoke and talk because I – I’ll – I’ll talk better. If not, I might bullshit you

all night – so that’s the chance you willing to take, because really –.” Detective Sanchez then stated,

“Well, that’s a chance – that’s a chance I’m willing to take, okay?” Appellant replied, “Go ahead,

go ahead.”

        Appellant and the detective then engaged in a colloquy on whether the Article 38.22 warnings
                                                                                          DAVIS – 18

needed to be read again:

       DET. SANCHEZ:           So let me just start.

       APPELLANT:              I know my rights.

       DET. SANCHEZ:           Let me just start.

       APPELLANT:              I’m past that, you don’t have to read them.

       DET. SANCHEZ:           Well, I’m gonna read them, okay?

       APPELLANT:              But you don’t have to read them.

       DET. SANCHEZ:           Well, let me just read them to you.

       APPELLANT:              Go ahead.

Detective Sanchez proceeded to again read the Article 38.22 warnings. After each warning, he asked

appellant if he understood his rights, and appellant nodded or answered affirmatively. When

Detective Sanchez reached the point about an attorney being appointed if appellant could not afford

one, appellant gave an inaudible response, and Detective Sanchez asked if appellant wanted that

warning read again. Appellant responded, “Yeah,” but when the detective began reading, appellant

asked, “Hold on, could you start over?” Detective Sanchez then proceeded to re-read the article

38.22 warnings from the beginning. When Detective Sanchez again reached the language “if you

are unable to employ a lawyer, you have the right to –,” appellant interjected, “The state will appoint

you an attorney for you.” Detective Sanchez then read the attorney-appointment warning and the

warning regarding the right to terminate the interview at any time. Again, after each warning,

Detective Sanchez asked appellant if he understood his rights, and appellant indicated that he did.

After the article 38.22 colloquy was finished, Detective Sanchez again asked appellant if he

understood his rights, and appellant nodded.
                                                                                        DAVIS – 19

        When the article 38.22 warnings colloquy was finished, appellant asked if he could ask the

detective questions. When Detective Sanchez indicated that he could, appellant said, “Cool, let’s

start.” Detective Sanchez responded, “[B]ut first . . . I’m not gonna talk to you unless you tell me

that you’re willing to waive your rights and talk to me.” Appellant replied, “Oh, I’ll waive my

rights.” Detective Sanchez then asked appellant to sign the warnings card, which included a written

waiver, but appellant was reluctant to do so until he was allowed to smoke a cigarette. The

detectives responded that appellant would have to smoke in the garage, and he would have his hands

cuffed behind his back. Eventually, Detective Sanchez asked, “Do you want to sign this card or not?

Just say yes or no.” Appellant replied, “Yeah, but you might not get what you want unless I get what

I want. But I’ll sign, that’s a start right there,” and he signed the card.

        After answering a number of questions, appellant asked, “Why do you need all of these

questions, because you have [sic] already have a solid case?” Detective Sanchez then suggested that

he may not have a solid case:

        DET. SANCHEZ:           Do I have a solid case?

        APPELLANT:              Do you?

        DET. SANCHEZ:           I don’t know, you tell me.

        APPELLANT:              I’m asking you.

        DET. SANCHEZ:           I don’t know that I do.

Appellant then responded, “If you don’t know that you do, then I’m not gonna give you one.”

Detective Sanchez then asked, “You’re not gonna give me one?” and appellant responded, “Why

should I?” Then Detective Sanchez asked, “Okay, so you don’t want to talk about it?” Appellant

responded, “I will talk about it but I have not smoken any cigarettes yet.” Detective Sanchez replied
                                                                                            DAVIS – 20

that he was not going to let appellant smoke a cigarette.

       After a few more questions that failed to elicit information from appellant, Detective

Rodriguez told appellant that they needed his side of the story. Appellant replied, “Y’all don’t need

my side because I’m the one fixing to burn up for this shit and if y’all are some damned detectives

– hold on, let me finish. If y’all are some detectives and y’all can detect and investigate and probe

and then examine, asking me these questions is useless.” Detective Rodriguez then said that they

wanted to understand “why.” Appellant responded, “You tell me what happened and I might could

tell you why it happened if you tell me what happened.” Detective Rodriguez then asked appellant

if he broke into the apartment, and appellant admitted that he “broke in.” Up to this point, appellant

exhibited a calm demeanor.

       After admitting that he “broke in,” Aappellant then told the detectives:

       Ask one question, want the truth. Now as far as I’m concerned, if this goes any more
       further, y’all ain’t gonna like what y’all hear and I’m not gonna like what I hear,
       because, first of all, I should have an attorney, that’s first of all, and I’m pretty sure
       y’all have already looked at my track record to see how many assaults I have on top
       of this other one that y’all are talking about, right. Aggravated assault with attempted
       murder, so do you think that I don’t know I’m going – that I’m not gonna get
       anything less than twenty?

Detective Sanchez began to respond, “Well –,” but appellant cut him off, becoming agitated and

raising his voice, as he continued: “Do you – do you think that I don’t know this shit? And so if you

think – if you – now I’m telling you that I know this shit, why the fuck should I give a fuck about

helping y’all out?” Detective Sanchez responded, “Okay,” and appellant continued: “And I can’t

even smoke a fucking cigarette. You can take me to my cot and I can lay my nigger ass down and

I’ll go do my fucking time and I’ll play games in the god-damn system like they play with me.”

       Detective Sanchez then asked appellant if he could call him by his given name, but appellant,
                                                                                         DAVIS – 21

beginning to calm down, indicated that he preferred to be called by his initials, S.P. Detective

Sanchez then informed appellant that R.M. had been raped. Appellant responded, “Well you gotta

prove that because I didn’t rape her.” Detective Sanchez then responded that R.M. was raped and

that Regina Lara had been killed. Detective Sanchez then asked if appellant had “anything to do

with that?” At this point, appellant returned to a state of complete calm and responded, “Umm, what

do you think?” Detective Sanchez replied, “I’m asking you, I wasn’t there.” Appellant responded,

“So basically, y’all haven’t got any –,” and Detective Sanchez interjected, “I was at home having

dinner, and I got a call to come over here and talk to you about it, and that’s why I’m here. I wasn’t

there.” Appellant responded, “I killed her.”

       After confirming that appellant was admitting to killing Regina, Detective Sanchez asked,

“Why?” Appellant then launched into a long invective about his reasons, with only slight responses

or interruptions by the detectives. Eventually, the interview returned to question-and-answer format.

Shortly into that portion of the questioning, however, appellant said, “Didn’t you just hear me say

I killed her? What else do you want? You need the whole nine yards? Can I get a cigarette now,

Homie? Can I get a cigarette now, Homie, and we could finish this shit.” Detective Rodriguez

responded, “Okay.” Appellant said, “Please?”

       After the appellant and the detectives interrupted each other several times, appellant asked,

“We can’t take a break?” Detective Sanchez replied, “No.” Appellant responded, “Well, then, I’m

– I’m through, man.” Detective Sanchez said, “Okay.” Appellant stated, “I’m through man, if I

can’t get no cigarette, that’s all you need to know.” As appellant was terminating the interview, he

started to stand. Detective Sanchez told appellant to sit, and appellant complied, but as Detective

Sanchez began to leave the room, appellant chose to stand again. Detective Sanchez told appellant
                                                                                           DAVIS – 22

to sit, but appellant refused, saying he would not hurt anyone. Appellant was told that he could stand

if he wanted, and the detectives exited the room.

         While appellant was alone in the room, he made a number of statements. He demanded a

cigarette numerous times and threatened to withhold any further information until he got one.

Nevertheless, appellant volunteered several times that he killed the victim—saying once, “I killed

that bitch.” Appellant spewed profanities, threatened to kill one of the officers or fight the officers,

said that he hoped that he received lethal injection because he hated this planet, and said, “When

I get to jail, it’s possible I will kill again, too.”

        Receiving no response to these statements, appellant became quiet, then started shouting

obscenities while occasionally kicking the door, and then started kicking the door continuously.

Soon, appellant was told to calm down. Detectives entered the room, carrying tasers, and told

appellant to turn around and face the wall. Appellant complied. Appellant asked, “Is the

interrogation over?” Detective Sanchez replied, “The interrogation is over. Okay, quit kicking my

door, okay?” Appellant responded, “Man, all I wanted was to talk, man. I was gonna give you the

whole story. You think I’m lying? You ain’t got everything.” Detective Sanchez replied, “You said

you were finished. You’re finished, okay?” Appellant continued talking about how he wanted a

cigarette, and just because he was guilty did not mean he did not deserve mercy, compassion, and

the truth. Eventually, Detective Sanchez promised to give appellant a cigarette. However, Detective

Sanchez’s sergeant did not allow appellant to smoke one at the station because of his behavior.

        Two days later, on August 24, 2006, the Travis County Correctional Complex psychiatrist,

Dr. John Ford, had a routine visit with appellant. Appellant told Dr. Ford that he had no history of

mental illness. During his evaluation, Dr. Ford saw no signs of mental illness and did not believe
                                                                                         DAVIS – 23

that appellant was in a drug-induced psychotic state when he was arrested. Three days after Dr.

Ford’s visit, appellant was found lying in a fetal position with a sheet tied around his neck. It was

determined that this was not a serious suicide attempt; appellant admitted that he acted stupidly. Dr.

Ford again evaluated appellant on August 29, 2006, and noted that appellant was rational and

reasonable.

       In September, several weeks after his arrest, appellant reported “hearing voices.” Dr. Ford

prescribed anti-psychotic medications for appellant, and his mental state improved. Dr. Ford

described the medications as a fairly substantial dosage that would not be tolerated by a person who

was not mentally ill. While Dr. Ford agreed with defense counsel that a drug-induced psychosis

could possibly persist for a month, he never made a diagnosis that appellant was suffering a drug-

induced psychosis.

       At the trial court’s request, Dr. Maureen Burrows evaluated appellant for competency on July

8, 2007. Dr. Burrows found that appellant suffered from depression, but determined that he was

competent to stand trial. She additionally found appellant to be coherent and not psychotic. While

Dr. Burrows had reviewed some records that indicated appellant had suffered a drug-induced

psychosis when he arrived at the jail, his hospital records did not support a psychotic diagnosis.

Appellant was lucid during his evaluation and remembered details of his offense, which would be

atypical for someone who was psychotic.

       At the trial court’s request, Dr. Burrows also reviewed the DVD of the statement appellant

made at the police station. She saw no signs of psychosis in appellant’s behavior on the video.

Appellant did not have any breaks with reality, and he displayed patterns of someone with full

command of his faculties and with an intact memory. Appellant communicated logically with the
                                                                                         DAVIS – 24

officers. He also showed evidence of logical thought processes and attempts at manipulation, which

are both inconsistent with psychosis. Dr. Burrows reported that appellant’s complaints regarding

psychotic symptoms were inconsistent and were indicative of malingering. Dr. Ford, however, stated

that he did not believe that appellant was malingering in terms of mental illness.

                                          2. Voluntariness

       In point of error seven, appellant alleges that his confession “was not voluntar[ily] and

knowingly entered into.” He cites Supreme Court due process cases that address whether, under the

totality of the circumstances, a suspect’s will was overborne during interrogation.34 Appellant

observes in passing that the trial court had ruled that appellant’s confession was admissible under

Article 38.22.

       Appellant argues that a number of “factors militate against a finding of voluntariness.” He

points out that the police initiated the interrogation and interviewed him in a police interrogation

room with a hidden camera. He contends that they employed “questionable interrogation tactics”

such as “leading questions, repeated verbal attacks, creating a heightened sense of fear, disbelief or

repeated questioning on answers that do not match the crime scene.” And he claims that he “had just

been through multiple days without sleep, prolonged drug use which affected his abilities to

understand and knowingly waive his rights, as well as a physical confrontation with the police, which

ended with him being taken to the hospital, where he received stitches and local anaesthetics.” He

also claims that he was either under the influence of drugs or suffering from the after-effects of

“coming off” drugs, that his “mental state at the time he was given and waived his Miranda rights



       34
         See e.g. Haynes v. Washington, 373 U.S. 503 (1963); Schneckloth v. Bustamonte, 412 U.S.
218 (1973).
                                                                                          DAVIS – 25

was unquestionably altered,” and that, soon after his incarceration, the treating physician in the jail

began to administer three very potent anti-psychotic drugs that would cause significant side effects

in a normal person but seemed to improve appellant’s condition. Appellant also discussed medical

testimony suggesting that he may have been psychotic at one time or prone to psychosis. Appellant

concludes:

       Under the totality of the circumstances, taking into consideration the factual inquiry,
       both the conduct of law enforcement and the suspect’s capacity to resist that pressure,
       it is obvious that appellant was unable to withstand the onslaught of his interrogators,
       in conjunction with this interrogation technique caused a subordination of his will to
       resist. The statement appellant gave was not of his own rational intellect and free
       will. Appellant requests that this Court find that his confession was not voluntary
       and find that its admission violated his Constitutional rights, and reverse and remand
       this case for a new trial.

       A statement is obtained in violation of constitutional due process only if the statement is

causally related to coercive government misconduct.35 Coercive government misconduct renders a

confession involuntary if the defendant’s “will has been overborne and his capacity for self-

determination critically impaired.”36 Whether this has occurred is determined by assessing the

“totality of all the surrounding circumstances,” including “the characteristics of the accused and the

details of the interrogation.”37 Under Article 38.22, a statement must be “made under voluntary

conditions,”38 and a suspect must “knowingly, intelligently, and voluntarily waive[] any rights set




       35
         Colorado v. Connelly, 479 U.S. 157, 163-64 (1986); Oursbourn v. State, 259 S.W.3d 159,
169-71 (Tex. Crim. App. 2008).
       36
            Schneckloth, 412 U.S. at 225-26.
       37
            Id.
       38
            Art. 38.22, §6.
                                                                                           DAVIS – 26

out in the [Article 38.22] warning.”39 The statutory inquiry does not necessarily turn on police

overreaching: “A confession given under the duress of hallucinations, illness, medications, or even

a private threat” could render a statement involuntary under Article 38.22.40

       We disagree with appellant’s claim that the police engaged in questionable practices. We

perceive no police misconduct in this case. Appellant was given Article 38.22 warnings on multiple

occasions. Detective Sanchez was especially diligent in reading the warnings in their entirety, in

making sure that appellant understood them, and in obtaining an express waiver by appellant of his

rights.41 Detective Sanchez made it clear that whether appellant participated in an interrogation was

entirely his choice. Detective Sanchez even suggested that he might not have a solid case.42 The

detectives would not allow appellant to smoke in the interview room, but they never suggested that

being allowed to smoke depended upon appellant’s participation in the interrogation. Because

appellant was under arrest, the officers were not required to let him smoke at all, and at the beginning

of the interview, the officers did not foreclose the possibility of appellant smoking in the police

garage, albeit in handcuffs.

       We also disagree with appellant’s contention that his waiver of rights and his statement were

not products of his own rational intellect and free will. The evidence at trial shows that appellant


       39
             Id., §3(a)(2); see also id., §2(b).
        40
             Oursbourn, 259 S.W.3d at 172.
       41
          See Carter v. State, 309 S.W.3d 31, 34 n.9 (Tex. Crim. App. 2010) (suggesting that,
though express waiver is not required, “interrogating officers should request an express waiver of
Miranda rights to avoid later litigation and the possible exclusion of incriminating statements”).
        42
         Cf. Frazier v. Cupp, 394 U.S. 731, 737-39 (1969) (confession not rendered involuntary
when police officer falsely told suspect that co-conspirator had confessed, and police officer said,
“You can’t be in any more trouble than you are in now.”).
                                                                                        DAVIS – 27

was willing—even eager—to talk to the police. Appellant repeatedly told the detectives that he

knew his rights, and, after being read the article 38.22 warnings, he repeatedly affirmed that he

understood them. Although appellant indicated some trouble when Detective Sanchez read the

warning about appointment of counsel, appellant later paraphrased that warning intelligently.

Appellant was calm through most of the interview, and he exhibited a rational understanding of the

questioning. He understood, for example, that if the police did not have a solid case, his

participation in the interview might give them one. Although expert testimony indicated that

appellant may suffer from mental illness, the testimony also indicated that appellant was not

suffering from a psychosis at the time of the interviews.

       Appellant did ask for a cigarette several times, but he did not appear to be suffering any

significant withdrawal symptoms—from nicotine, cocaine, or any other drug. In United States v.

Kelley, the Ninth Circuit held a statement to be voluntary even though the suspect was suffering from

heroin withdrawal.43 Two thirds of the way through the interview, Kelley “began experiencing

chills, shaking, and trembling.”44    Despite those symptoms, Kelley “remained coherent and

responsive” and the court concluded that the “effects of withdrawal did not overcome Kelley’s ability

to think rationally.”45 Whatever cravings appellant may have been having for cigarettes, they were

not nearly as severe as the withdrawal symptoms exhibited by the suspect in Kelley. Point of error

seven is overruled.

                                      3. Request for Counsel


       43
            953 F.2d 562, 565 (9th Cir.1992).
       44
            Id.
       45
            Id.
                                                                                         DAVIS – 28

       In point of error eight, appellant complains that his confession was inadmissible under

Miranda because the detectives failed to honor his request for an attorney. He claims that his

statement, “I should have an attorney,” accompanied by his question about why he should help out

the detectives, constituted an unambiguous invocation of his right to counsel, and that the detectives

failed to honor that invocation when they continued the interview. According to Detective Sanchez,

“It was our interpretation at the time that he hadn’t actually invoked. He didn’t say he wanted an

attorney. He was making a suggestion, so we didn’t interpret that as him invoking his right to an

attorney.” The trial court found the “I should have an attorney” statement to be ambiguous: “Based

upon the totality of the circumstances, the court finds that – the statement to be in context from the

entire conversation with [appellant], that the statement was ambiguous.” The trial court also found

that, even if the statement was not ambiguous, “[appellant] immediately reinitiated the interview

with the officers and continued to ask them questions.”

       When a suspect asks for a lawyer, interrogation must cease until counsel has been provided

or the suspect initiates further communication with the police.46 To trigger law enforcement’s duty

to terminate the interrogation, a suspect’s request for counsel must be clear, and the police are not

required to attempt to clarify ambiguous remarks.47 Whether a statement referring to a lawyer

constitutes a clear request for counsel depends on the statement itself and the totality of the

circumstances surrounding the statement.48 The test is objective: whether the suspect “articulate[d]



       46
          Edwards v. Arizona, 451 U.S. 477, 484-85 (1981); State v. Gobert, 275 S.W.3d 888, 892
(Tex. Crim. App. 2009).
       47
            Davis v. United States, 512 U.S. 452, 461-62 (1994).
       48
            Gobert, 275 S.W.3d at 892.
                                                                                              DAVIS – 29

his desire to have counsel present sufficiently clearly that a reasonable police officer in the

circumstances would understand the statement to be a request for an attorney.”49 If the accused’s

invocation of the right to counsel is clear, his responses to further questioning may not be used to

cast doubt retrospectively on the clarity of his initial request.50

        In Davis v. United States, the Supreme Court held that the statement, “Maybe I should talk

to a lawyer,” did not constitute a clear request for counsel.51 The Supreme Court has not addressed

whether its analysis would change if the word “maybe” was absent from the statement. But, relying

upon Davis, a number of other jurisdictions have found declarative statements without the “maybe”

modifier to be ambiguous: “[B]ut, excuse me, if I am right, I can have a lawyer present through all

this, right?,”52 “I think I need a lawyer,”53 “I think I better talk to a lawyer first,”54 “[T]he best thing

I can do is, for myself, is to shut the hell up and not talk about this without first talking to a




        49
             Id. at 892-93.
        50
           Smith v. Illinois, 469 U.S. 91, 100 (1984); Smith v. State, 779 S.W.2d 417, 425 (Tex.
Crim. App. 1989); see also Gobert, 275 S.W.3d at 893 (courts should not attempt “to determine in
retrospect whether the suspect really meant it when he unequivocally invoked his right to counsel”)
(emphasis in original).
        51
             512 U.S. at 455, 462.
        52
             United States v. Younger, 398 F.3d 1179, 1187-88 (9th Cir. 2005).
        53
         Burket v. Angelone, 208 F.3d 172, 197-98 (4th Cir. 2000). See also In re H.V., 252 S.W.3d
319 (Tex. 2008) (citing Burket); Clark v. Murphy, 331 F.3d 1062, 1071 (9th Cir. 2003) (contrasting
two pre-Davis cases that held similar language to be an unequivocal request for counsel with Burket
and another post-Davis case finding such language to be ambiguous).
        54
             State v. Eastlack, 180 Ariz. 243, 250-51, 883 P.2d 999, 1007 (1994).
                                                                                             DAVIS – 30

lawyer,”55 “I probably should have an attorney,”56 “I feel as though I should have an attorney . . .

because how ugly this looks on me,”57 “I’ll be honest with you, I’m scared to say anything without

talking to a lawyer,”58 and “I think I should see an attorney.”59

        Other jurisdictions appear to have come to a contrary conclusion, finding an unambiguous

request for counsel in statements such as “I think I need a lawyer present,”60 “Well, I think I need a

lawyer,”61 “I think it would be in my best interest to talk to an attorney,”62 “I think I’d rather talk to

a lawyer,”63 and “I think I should call my lawyer”64—although those courts also observed that law

enforcement agents who heard the statements understood each to be a request for counsel.65 A few

courts have found an unambiguous request for counsel in statements that included the clause, “I


        55
             Sykes v. State, 2009 Ark. 522, at 15, 2009 Ark. LEXIS 673, at 22 (October 29, 2009).
        56
         State v. Goodwin, 278 Neb. 945, 959, 774 N.W.2d 733, 744-45 (2009); State v. Hilding,
278 Neb. 115, 127-28, 769 N.W.2d 326, 337 (2009).
        57
             Stemple v. State, 2000 OK CR 4, 34-36, 994 P.2d 61, 69-70 (2000).
        58
             Midkiff v. Commonwealth, 250 Va. 262, 265-67, 462 S.E.2d 112, 114-15 (1995).
        59
          State v. Jennings, 252 Wis. 2d 228, 233-34, 244-45, 647 N.W.2d 142, 144-45, 150
(2002)(conclusion in earlier Wisconsin Supreme Court case that this language constituted an
unequivocal request overturned by United States Supreme Court’s decision in Davis).
        60
             State v. Jackson, 348 N.C. 52, 56-57, 497 S.E.2d 409, 411-12 (1998).
        61
             State v. Kennedy, 333 S.C. 426, 429-30, 510 S.E.2d 714, 715-16 (1998).
        62
             Alford v. State, 699 N.E.2d 247, 251 (Ind. 1998).
        63
             State v. Munson, 594 N.W.2d 128, 139-40 (Minn. 1999).
        64
         Cannady v. Dugger, 931 F.2d 752, 755 (11th Cir. 1991). See also United States v. Shabaz,
579 F.3d 815 (7th Cir. 2009) (discussing Cannady with approval).
        65
          Jackson, 348 N.C. at 57, 497 S.E.2d at 412; Kennedy, 333 S.C. at 430, 510 S.E.2d at 715;
Alford, 699 N.E.2d at 251; Munson, 594 N.W.2d at 139; Cannady, 931 F.2d at 755.
                                                                                         DAVIS – 31

should talk to a lawyer.”66

       In Smith v. Endell, the suspect said, “Can I talk to a lawyer? At this point, I think maybe

you’re looking at me as a suspect, and I should talk to a lawyer. Are you looking at me as a

suspect?”67 The Ninth Circuit held that the suspect had made a clear, though conditional, request

for counsel.68 Because the condition had been satisfied (Smith was considered a suspect), the

suspect’s statement was an unambiguous invocation of his right to counsel.69

       In State v. Romero, the suspect said, “Yea. Cause I, ya know, I’m not gunna lie man, ya

know, I mean I should wait, and I should talk to a lawyer and this and that and ya know because I

do want to go to trial on this.”70 The trial judge in that case found the statement to be an

unambiguous request for an attorney and granted the defendant’s motion to suppress.71 Upholding

the suppression order in an interlocutory appeal, the Supreme Court of Colorado found that the

evidence supported the trial court’s finding that the suspect had “reasonably conveyed his desire for

the assistance of counsel.”72 Giving deference to the trial court’s assessment of the factual issues,

the Supreme Court of Colorado observed that the trial court “did not accept [the police officer’s]

explanation that the suspect was in effect saying, ‘I know I should talk to a lawyer, but I’m going to


       66
           Smith v. Endell, 860 F.2d 1528, 1529, 1531 (9th Cir. 1988); Shabaz, 579 F.3d at 819
(discussing Smith); State v. Romero, 953 P.2d 550 (Colo. 1998).
       67
            860 F.2d at 1529.
       68
            Id. at 1531.
       69
            Id.
       70
            953 P.2d at 552.
       71
            Id. at 553.
       72
            Id. at 557.
                                                                                            DAVIS – 32

tell you what happened.’”73 In a dissent, Justice Mullarkey argued that “it is entirely unrealistic to

ask a police officer to distinguish the statement in Davis—‘Maybe I should talk to a lawyer’—which

the Supreme Court held was not a request for counsel, and the statement in this case—‘I should talk

to a lawyer.’”74 A later Colorado Supreme Court case has explained that Romero stands for the

proposition that “a reasonable officer would have understood the statement, ‘I should talk to a lawyer

. . . because I do want to go to trial on this’ to be a clear request for counsel given the surrounding

circumstances.”75

        Appellant’s statement “I should have an attorney” was not in the form of a request, nor did

appellant expressly say that he wanted a lawyer. Even in cases such as Smith and Romero, where

a “should” statement was determined to be an unambiguous request, the courts have suggested that

the surrounding circumstances were highly relevant considerations. Assuming arguendo that a

“should” statement could constitute an unambiguous request under the right circumstances, the

circumstances present here convince us that a unambiguous request for counsel was not made.

        Use of the word “should” could simply mean that appellant believed having an attorney was

in his best interests, but he could choose to disregard his best interests and talk to the police anyway.

This interpretation of events is bolstered by appellant’s immediately preceding statement, “[I]f this

goes any . . . further,” the police are not going to like what they hear.

        That appellant’s statement, “I should have an attorney,” was not a request for an attorney is

also bolstered by the fact that he subsequently asked the detectives why he should help them out.


        73
             Id.
        74
             Id. at 560 (Mullarkey, J., dissenting).
        75
             People v. Arroya, 988 P.2d 1124, 1132 (Colo. 1999).
                                                                                               DAVIS – 33

In his brief on direct appeal, appellant characterizes his question to the detectives as “rhetorical.”

But it may have been a real question. Whether the question was rhetorical or real is ambiguous. If

the question was real, then appellant was signaling that the interview should continue, at least for

the moment, by asking the officers to give him a good reason to cooperate. The officers did so by

explaining that R.M. had been raped, and the interview continued without appellant saying anything

that could be construed as an objection to doing so. And although appellant’s question was asked

after he said, “I should have a lawyer,” that question came very soon afterwards, before the

detectives asked any other questions. We hold that appellant’s statement was not, under the

circumstances presented here, a clear request for counsel. Point of error eight is overruled.

                                        E. Unanimous Verdict

        In point of error ten, appellant alleges that the trial court erred in its instructions to the jurors

regarding a finding of a unanimous verdict on the underlying offense of burglary of a habitation. The

trial court instructed jurors, over objection, that they “need not be unanimous as to the way that the

burglary of a habitation was committed so long as each of you individually believes beyond a

reasonable doubt that the defendant committed the intentional murder of Regina Lara in the course

of committing ‘Burglary of a Habitation.’” The jury charge included instructions regarding all of

the statutory means of committing burglary, along with the definition of the offense of sexual assault

of a child, and the instruction that sexual assault of a child is a felony. Appellant points out that the

underlying offense of burglary, as instructed, could involve: (1) burglary based upon theft of property

from Regina, or (2) burglary based upon the sexual assault of R.M.76 Appellant argues, “Because

there are two victims of burglary of a habitation and two distinct and separate crimes committed


        76
             See TEX . PENAL CODE § 30.02(a) (elements of burglary).
                                                                                          DAVIS – 34

against them, under the Blockburger77 test there are two different offense[s].”

       Although the double jeopardy and jury unanimity strands of our jurisprudence are closely

intertwined, the Blockburger “same elements” test is not the sole test to be used in either context.78

In the jury unanimity context, whether different legal theories of committing a crime constitute

different offenses or merely constitute alternate methods of committing the same offense usually

depends upon the focus or gravamen of the offense or offenses in question.79 With respect to

homicide offenses—which focus on the death of an individual—“we have held that different legal

theories involving the same victim are simply alternate methods of committing the same offense.”80

For capital murder prosecutions in particular, we have held that a jury charge may disjunctively

allege different capital murder theories with respect to the same victim.81 The jury charge may

disjunctively allege “all alternate theories of capital murder contained within §19.03, whether they

are found in the same or different subsections, so long as the same victim is alleged for the predicate

murder.”82

       Appellant contends that there were two underlying burglaries because there were two victims

(Regina and R.M.) and two underlying offenses connected with the unlawful entry (theft and sexual

assault). Even if that were so, there would still be only one capital murder, based upon the murder



       77
            See Blockburger v. United States, 284 U.S. 299 (1932).
       78
            Huffman v. State, 267 S.W.3d 902, 905 (Tex. Crim. App. 2008).
       79
            Id. at 907.
       80
            Id. at 905.
       81
            Id. (citing Kitchens v. State, 823 S.W.2d 256, 257 (Tex. Crim. App. 1991)).
       82
            Gamboa v. State, 296 S.W.3d 574, 584 (Tex. Crim. App. 2009).
                                                                                         DAVIS – 35

of Regina. Nothing prohibits a single capital murder from containing alternate underlying offenses

that are the same statutory offense but with different victims or different underlying methods of

commission, so long as the same victim is alleged with respect to the predicate murder. In any event,

appellant’s contention regarding burglary is incorrect. The gravamen of a burglary is the entry

without the effective consent of the owner, so the existence of multiple victims, or multiple

underlying offenses connected with the entry, does not convert a single unlawful entry into multiple

burglaries.83 Point of error ten is overruled.84

                                        III. PUNISHMENT

                                        A. Jury Selection85

                            1. Denial of Defense Challenge for Cause

       In point of error two, appellant complains about the trial court’s refusal to grant a challenge

for cause against prospective juror Dominguez. Appellant alleges that Dominguez stated that he

would automatically find an individual to be a future danger after finding him guilty of capital

murder. Appellant also argues that Dominguez had a bias because he would “lean towards” finding

that someone was a future danger based upon a guilty finding.

       Before harm can be shown on the record with respect to a trial court’s denial of a challenge



       83
            Ex parte Cavazos, 203 S.W.3d 333, 335-37 (Tex. Crim. App. 2006).
       84
          Ironically, out of an abundance of caution, the trial court did choose to submit as separate
verdicts capital murder with the underlying offense of burglary and capital murder with the
underlying offense of robbery. As we have explained above, it was not required to do so. See
Huffman, 267 S.W.3d at 905 (citing Kitchens).
       85
           In capital cases, jury selection claims that revolve around punishment issues are errors
relating to punishment only. Ransom v. State, 920 S.W.2d 288, 297-98 (Tex. Crim. App. 1996)
(opinion on reh’g).
                                                                                           DAVIS – 36

for cause, a defendant must: (1) use a peremptory strike on the complained-of venire member; (2)

exhaust his peremptory strikes; and (3) request an additional peremptory strike to use upon a

specifically identified objectionable venire member who, because the extra strike is denied, actually

sits on the jury.86

        In a death penalty case with only one defendant, the defendant is entitled to fifteen

peremptory challenges.87 The record shows that appellant used only nine of his fifteen peremptory

strikes.88 Appellant did not suffer harm with regard to this complaint. Point of error two is

overruled.

                                          2. Witherspoon Claim

        In point of error three, appellant claims that the trial court erred in granting the State’s

challenge for cause against prospective juror Paul. Appellant argues that Paul’s answers to the

parties’ questions showed that he would have been able to answer the special issues, would have

been able to take the oath, and would have been able to follow the law as given by the trial court.

Referring to Witherspoon v. Illinois89 and Wainwright v. Witt,90 appellant claims that he has “the right

to an impartial jury drawn from a venire that has not been tilted in favor of capital punishment by

selective prosecutorial challenges for cause,” and he claims that the trial court’s action here resulted


        86
             Busby v. State, 253 S.W.3d 661, 670 (Tex. Crim. App. 2008).
        87
         T    EX . CODE   CRIM . PROC. art. 35.15(a).
        88
            Two alternate jurors were impaneled in this case. Consequently, appellant was entitled
to one additional peremptory challenge exclusively for the purpose of striking a potential alternate
juror, id., art. 35.15(d), and appellant exercised that additional peremptory challenge.
        89
             391 US 510 (1968).
        90
             469 U.S. 412 (1985).
                                                                                         DAVIS – 37

in reversible error under Gray v. Mississippi.91

       Under Witherspoon and its progeny, a trial court may grant a State’s challenge for cause on

the basis of a prospective juror’s conscientious scruples about the death penalty if the prospective

juror’s views “would prevent or substantially impair the performance of his duties as a juror in

accordance with his instructions and his oath.”92 We review a trial court’s ruling on such a matter

with “considerable deference” because “the trial court is in the best position to evaluate the

veniremember’s demeanor and responses.”93 When a prospective juror’s answers are “vacillating,

unclear, or contradictory,” we accord particular deference to the trial court’s decision.94 We will

reverse a trial court’s ruling only if the record shows a clear abuse of discretion.95

       During examination by the State, Paul explained that he was responsible for six restaurants

and that sitting on the jury “would be a huge problem.” He did not believe that he could give the

case the attention needed.

       When the State also examined Paul regarding his questionnaire answer that he “dislike[s]

reasonable doubt and think[s] it gives an out for criminals,” Paul explained:

       I think to prove something beyond a reasonable doubt, unless I was physically there
       watching it or there was a camera there, you know, to catch something that presented
       evidence, I don’t see how you can put someone to death or, you know, say life
       imprisonment, when you hear all the time of cases that are overturned for, you know,
       DNA or whatever.


       91
            481 U.S. 648 (1987).
       92
            Witt, 469 U.S. at 433; Smith v. State, 297 S.W.3d 260, 268 (Tex. Crim. App. 2009).
       93
            Smith, 297 S.W.3d at 268.
       94
            Id.
       95
            Id.
                                                                                         DAVIS – 38


Paul added that he thought “it would be very hard to put someone to death based on something

nobody really knows except the people involved in what occurred.” When asked whether he felt that

it would be impossible to prove beyond a reasonable doubt that someone had committed capital

murder without having witnessed it, Paul expounded:

       I’m just saying like I just don’t really see how the system works perfectly enough to
       ever say somebody should be condemned to death or life imprisonment without a
       chance of parole based on – I hope I never have to be sitting in the defendant’s chair.
       I don’t trust the people in society to make those kind of calls.

The State asked Paul whether he believed it would be easier for the State to prove something like

theft by check rather than capital murder. Paul responded that he didn’t know if he’d call it easier,

but that “the stakes are certainly not the same as capital murder.”

       Further, when asked by the State whether he still agreed with his questionnaire response that

he was opposed to capital punishment under any circumstances, Paul responded, “Yes.” He stated

that, “I don’t like either of the two choices, once again, that the State is presenting. You know, to

me life imprisonment without parole is basically the equivalent as (sic) the death penalty for

someone.” When asked by the State whether, in this particular case, he would “have to be choosing

between the law and [his] personal beliefs,” Paul responded:

       Absolutely. I don’t see how anybody could look at it any other way. I mean, the
       State is going to be asking me to, you know, basically admonish [sic] somebody and
       something that I don’t – I mean, I can’t see that – I’ll be honest with you. Down the
       line I’m going to look out for my own personal well-being based on this case. I
       mean, if I’m worried that it’s going to bother me for the rest of my life that I put
       somebody to death based on a decision that I made and I don’t believe beforehand
       that it should be done, then, I mean, yeah, I mean, I don’t want to – I’m just saying.
       I’m being honest. I don’t want to serve on a jury where I would be asked to
       compromise my individual beliefs, and I understand the point of the State to get to
       the bottom of what happened, but that is just not something that I would ever feel
       comfortable doing.
                                                                                         DAVIS – 39

The State followed up by asking Paul if he believed that his views on the death penalty and on life

without parole would prevent him from taking the oath to render a verdict according to the law in

the case. Paul responded, “I do not think that I would be able to render that verdict.” The State then

asked, “And nothing that the Judge is going to say or we’re going to say or the defense is going to

say is going to change your feeling?” Paul responded affirmatively.

       Defense counsel asked Paul if he would just “walk out” due to his views. Paul replied, “No,

no, I wouldn’t. I’m not going to mock the legal system. I mean, I’m a citizen.” “So,” defense

counsel commented, “you would take the oath.” Paul responded, “Yeah, and I would take the oath.

I’m saying that I’m somebody who would be very interested in being part of a jury in many cases.

This is not one of them.”

       Later, defense counsel asked if Paul could vote guilty if he believed the defendant was guilty

beyond a reasonable doubt. The following exchange occurred:

       A. Not based on what the State is pushing for.

       Q. Well, they are just asking at this point in time would you vote guilty.

       A. Would I vote guilty?

       Q. Again, are you going to just refuse to vote, or what would you do? That’s what
       I need to know?

       A. I don’t know. I can’t answer. I feel like if the choices that are put before me are
       life without parole and –

Defense counsel then asked Paul to focus “just on the guilt/innocence” phase of trial and say whether

he had a problem with determining whether someone was guilty. Paul replied, “No, no, but, I mean,

you are asking a question in a vacuum would I do that. Yes, I can vote guilt or innocence, but then

when you say, you know – ”
                                                                                           DAVIS – 40

       Defense counsel then asked Paul to just answer by “steps.” He inquired whether Paul could

find someone guilty if he believed it, and Paul answered, “Yes.” Defense counsel then asked Paul

if he could vote yes if he believed that a person is likely to be a future danger. Paul again answered,

“Yes.” Defense counsel then explained the mitigation special issue96 and asked Paul if he could

answer that issue honestly based upon the evidence. Paul told defense counsel, “I would always

answer honestly. Okay? But I’m honestly telling you beforehand that I don’t consider life

imprisonment without parole or the death penalty sufficient for any case.”

       The trial court granted the State’s challenge for cause, ruling:

       Based upon the answers that [Paul] gave when the State was questioning, the
       demeanor and just all of it put together, he did state that he would hold them to a
       higher burden of proof on a capital murder case, his demeanor, the Court finds that
       his personal views and beliefs would prevent him from – would substantially impair
       his ability to uphold his duties as a juror in this case, so it will be granted.

       The trial court was in the best position to evaluate Paul’s demeanor and responses in

determining whether his views would substantially impair the performance of his duties as a juror

in accordance with his instructions and his oath. Based upon the totality of the voir dire testimony,

the trial court did not abuse its discretion in granting the State’s challenge for cause. Point of error

three is overruled.

                                      3. Commitment Question


       96
            The mitigation special issue provides:

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

Art. 37.071, §2(e)(1).
                                                                                          DAVIS – 41

       In point of error five, appellant complains that the trial court erred in preventing the defense

from questioning prospective juror Blankenship regarding the mitigation special issue. Defense

counsel asked Blankenship, “Do you believe disabilities of a defendant would be something you’d

take into consideration?”97 The State objected that the defense had asked a commitment question,

and the trial court sustained the objection.98 Appellant now contends that the question was

permissible because it was open-ended and not fact-specific.

       A commitment question is one that commits a prospective juror to resolve, or refrain from

resolving, an issue a certain way after learning a particular fact.99 Often a commitment question

requires a “yes” or “no” answer, and one or both possible answers commits a juror to resolve an issue

in a particular way.100 Not all such questions are improper, however.101 When the law requires a

certain type of commitment from jurors, such as considering the full range of punishment, an

attorney may ask prospective jurors to commit to following the law in that regard.102

       The law does not require that a juror consider any particular piece of evidence as




       97
           Immediately before this question, defense counsel had asked, “In your mind, you know,
as you think about these issues and have contemplated them, do you believe mitigating evidence has
value in determining whether a person should receive the death penalty or not?” Prospective juror
Blankenship answered, “I do.”
       98
           Neither the State nor the defense challenged Blankenship for cause or used a peremptory
strike against him, and he was seated as a juror.
       99
             Standefer v. State, 59 S.W.3d 177, 179 (Tex. Crim. App. 2001).
       100
             Id.
       101
             Id. at 181.
       102
              Id.
                                                                                         DAVIS – 42

mitigating.103 Or in the wording used by the question in the present case, a juror is not required to

“give a particular variety of ‘mitigating evidence’ any consideration.”104 The law requires only that

defendants be allowed to present relevant, mitigating evidence and that the jury be provided a vehicle

to give mitigating effect to that evidence if the jury finds it to be mitigating.105 Whether a juror

considers a particular type of evidence to be mitigating is not a proper area of inquiry.106

       The trial court was within its discretion to find that the question appellant sought to ask was

an improper commitment question. Point of error five is overruled.

                          B. Admission of Criminal Record Documents

       In point of error eleven, appellant alleges that he was denied his constitutional right to

confront the witnesses against him, in violation of Crawford v. Washington.107 Specifically,

appellant complains that the trial court erroneously admitted the following documents during the

punishment phase: Serious Incident Report dated June 25, 1998 (State’s Exhibit 224); Judgment

Revoking Community Supervision in case number 991288 (State’s Exhibit 225); Defendant’s Plea

of Guilty, Waiver, Stipulation, Judicial Confession and Admonitions of the Court in case number

9020337 (State’s Exhibit 227); and Judgment of Community Supervision with documents relating

to case number 991288 (State’s Exhibit 228). Appellant stipulated that he was the subject of the

documents.


       103
             Raby v. State, 970 S.W.2d 1, 3 (Tex. Crim. App. 1998).
       104
             Johnson v. State, 773 S.W.2d 322, 330-31 (Tex. Crim. App. 1989).
       105
             Raby, 970 S.W.2d at 3.
       106
             Standefer, 59 S.W.3d at 181; Raby, 970 S.W.2d at 3.
       107
             541 U.S. 36 (2004).
                                                                                         DAVIS – 43

       In his brief, appellant claims that he “objected to the admission of State’s exhibits 224, 225,

227, and 228.” The record references that he has provided reveal no objections. Our review of the

record indicates that State’s Exhibit 224 was read into the record without objection by the author of

the report, Christine Edwards. Our review of the record also indicates that State’s Exhibits 225, 227,

and 228 were admitted without objection during the testimony of appellant’s probation officer,

Ashley Street.

       Generally, in order to preserve error, there must be a timely and specific objection to the

complained-of evidence.108           Confrontation Clause claims are subject to this preservation

requirement.109 Because appellant did not object to the admission of these documents, this issue has

not been preserved for review. Point of error eleven is overruled.

                                       C. Death of the Victim’s Cat

                                                  1. Background

       While further processing the crime scene on August 23, 2006, the day following the offense,

Detective Sanchez discovered the victim’s dead cat wrapped in a jacket and inside a pillowcase from

the victim’s bed and hidden in the victim’s bedroom closet. On August 24, Detective Sanchez

returned to the apartment to get a closer look at the cat. He learned from the apartment manager that

the maintenance crew had thrown the cat into a dumpster. The manager had the cat removed from

the dumpster after being informed that the detective wished to inspect the animal further. The cat

was bundled up in the same manner that it had been the day before. Detective Sanchez removed the

cat from the bundle and took photos. The cat had three wounds in its back. In Detective Sanchez’s


       108
         T    EX . R. APP . P.   33.1(a)(1)(A).
       109
             Anderson v. State, 301 S.W.3d 276, 280 (Tex. Crim. App. 2009).
                                                                                           DAVIS – 44

opinion, the wounds were consistent with puncture or stab wounds and were consistent with the size

and shape of the knife blade used on the victim.

        The State also presented testimony that the cat was seen in the victim’s apartment the

morning prior to the offense, that the cat was exclusively an indoor cat, and that the cat was not seen

alive again after the morning of the offense. The State additionally presented testimony that a

portion of the blood evidence found inside the victim’s apartment tested negative for the presence

of human DNA. Sanchez later recalled, during the hearing on the admissibility of the evidence, that

the cat was in the dumpster for only a few hours.

        The trial court ruled, over appellant’s objection, that the evidence pertaining to the cat was

admissible and that the detective could give his opinion, as a layperson, regarding the nature of the

wounds. The trial court gave the jury a limiting instruction prior to hearing the testimony that it

could not consider the testimony of the extraneous act if it did not believe beyond a reasonable doubt

that appellant committed the act. The instruction was also included in the court’s charge to the jury.

                                      2. General Admissibility

        In point of error twelve, appellant alleges that the trial court erred when it admitted evidence

regarding the death of the victim’s cat. Appellant argues that the evidence: (1) was not reliable

enough to be used at trial because of problems with the chain of custody; (2) was irrelevant because

the evidence could not be tied to appellant; and (3) had a prejudicial impact greater than its probative

value. Appellant concedes that these errors are non-constitutional, but argues that they affected his

substantial rights.

        Appellant pointed out to the jury all the instances the cat’s body was not in police custody

and implied that someone other than appellant was responsible for the cat’s wounds and death.
                                                                                           DAVIS – 45

Absent evidence of tampering, issues regarding the chain of custody bear on the weight, rather than

on the admissibility, of evidence.110

        Regarding relevance, we point out that statute permits a trial court at the penalty stage of a

capital murder trial to admit evidence “as to any matter that the court deems relevant to sentence.”111

Relevant evidence is evidence that has a tendency to make the existence of any fact more or less

probable than it would be without the evidence.112 It is generally true that evidence of extraneous

bad acts committed by the defendant is relevant and admissible at the punishment stage of a capital

murder trial, so long as the State “clearly proves” that the misconduct occurred and that the

defendant was the perpetrator.113 Though circumstantial, the evidence in this case clearly proved that

appellant killed the cat. The cat belonged to the victim, was an indoor-only pet, was killed during

the same time period, and suffered wounds similar to those suffered by the victim.

        Appellant further contends that, even if relevant, the probative value of the cat evidence was

substantially outweighed by the danger of unfair prejudice. Appellant contends that “[t]he cat has

no ‘inherent probative value’ and is only similar to the evidence regarding the murder if the scientific

evidence propounded by Sanchez, who admitted he had no scientific training nor conducted any tests

measurements or other scientific analysis of the injuries to the cat, is to be believed.” Appellant

further claims that “the State lacked a need for this testimony, since the evidence could not be tied

to an act by appellant beyond a reasonable doubt.”


        110
              Lagrone v. State, 942 S.W.2d 602, 617 (Tex. Crim. App. 1997).
        111
              Art. 37.071, § 2(a)(1).
        112
         T     EX . R. EVID .   401.
        113
              Young v. State, 283 S.W.3d 854, 876 (Tex. Crim. App. 2009).
                                                                                           DAVIS – 46



       We disagree with appellant that the death of the cat had no probative value. That appellant

would kill a house cat is some evidence of his violent nature. Appellant complains that he suffered

prejudice because the prosecutor, in closing argument, referred to this evidence as showing

appellant’s “brutality and gratuitous cruelty.” But the prosecutor’s assessment was rational and was

a legitimate reason for admitting the evidence. Rule 403 does not require exclusion of evidence

simply because it creates prejudice; the prejudice must be “unfair.”114 The danger of unfair prejudice

exists only when the evidence has the “potential to impress the jury in an irrational way.”115 The trial

court did not abuse its discretion in admitting the evidence regarding the death of the victim’s cat.

Point of error twelve is overruled.

                                        3. Opinion Testimony

       In point of error thirteen, appellant alleges that the trial court erred in allowing Detective

Sanchez to testify as an expert regarding the comparison of the victim’s injuries to those of her cat,

the rate of animal decay, and the cat’s time of death—despite the fact that Sanchez had no scientific

training in this area. Appellant further argues that Detective Sanchez was never offered as an expert

witness for any purpose.

       Detective Sanchez’s testimony regarding the rate of animal decay and the cat’s time of death

occurred only during a hearing outside the presence of the jury. Because that testimony was not

admitted into evidence before the jury, appellant cannot predicate error on that basis.

       With respect to the testimony about the wounds, the trial court allowed Detective Sanchez’s


       114
              State v. Mechler, 153 S.W.3d 435, 440 (Tex. Crim. App. 2005).
        115
              Id. at 440-41.
                                                                                           DAVIS – 47

testimony as a lay witness, rather than as an expert. Under Rule 701, a lay witness may testify to

“opinions or inferences which are (a) rationally based on the perception of the witness and (b)

helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue.”116

“Perceptions refer to a witness’s interpretation of information acquired through his or her own senses

or experiences at the time of the event (i.e., things the witness saw, heard, smelled, touched, felt, or

tasted).”117 Because Rule 701 requires testimony to be based on a witness’s perception, the witness

must have personally observed or experienced the events about which he is testifying.118 As a

general rule, observations that do not require significant expertise to interpret and which are not

based on scientific theory can be admitted as lay opinions.119 The admissibility of such testimony

is within the discretion of the trial court and will not be reversed absent an abuse of discretion.120

        At trial, Sanchez did not purport to possess any specialized knowledge or to be an expert in

wound determination. He testified based upon his first-hand observation of the wounds themselves.

His observations did not require significant expertise to interpret and were not based on scientific

theory. Although the jurors could view photos of the wounds, they were not in a position to observe

the cat’s body first-hand. Detective Sanchez had a superior vantage point in viewing those wounds,

having observed the body of the cat, while the jurors could view only two-dimensional photos.




        116
        T EX . R. EVID . 701; see also Osbourn v. State, 92 S.W. 3d 531, 535 (Tex. Crim. App.
2002); Fairow v. State, 943 S.W.2d 895, 898 (Tex. Crim. App. 1997).
        117
              Osbourn, 92 S.W.3d at 535.
        118
              Id.
        119
              Id. at 537.
        120
              Id.
                                                                                           DAVIS – 48

Detective Sanchez’s inferences helped to provide a clearer understanding of what took place

contemporaneously to the offense, and thus, the trial court did not abuse its discretion in concluding

that the evidence was admissible as a lay opinion.

       Even if we accepted appellant’s claim that Detective Sanchez testified as an expert, however,

we would conclude that Detective Sanchez possessed sufficient qualifications to do so. Detective

Sanchez had been with the Austin Police Department for seventeen years and had been a detective

in the homicide unit for five years. In addition to training received at the police academy, he also

had training at a “basic homicide school.” Although Detective Sanchez did not possess a scientific

background, his training and experience were sufficient to support a conclusion that he possessed

expertise at recognizing the similarity of life-terminating injuries beyond that possessed by the

average person.

       Rule 702 provides:

       If scientific, technical, or other specialized knowledge will assist the trier of fact to
       understand the evidence or to determine a fact in issue, a witness qualified as an
       expert by knowledge, skill, experience, training, or education may testify thereto in
       the form of an opinion or otherwise.121

This rule covers more than just scientific evidence, and expertise can be acquired in numerous ways,

including by training or experience. An expert must possess some additional knowledge or expertise

beyond that possessed by the average person, but the gap need not necessarily be monumental:

       A trial court need not exclude expert testimony simply because the subject matter is
       within the comprehension of the average jury. If the witness has some special
       knowledge or additional insight into the field that would be helpful, then the expert
       can assist the trier of fact to understand the evidence or to determine a fact in issue.
       An expert may add precision and depth to the ability of the trier of fact to reach
       conclusions about subjects which lie well within common experience. Because the


       121
             TEX . R. EVID . 702.
                                                                                            DAVIS – 49

       possible spectrum of education, skill, and training is so wide, a trial court has great
       discretion in determining whether a witness possesses sufficient qualifications to
       assist the jury as an expert on a specific topic in a particular case.122

“If the expert evidence is close to the jury’s common understanding, the witness’s qualifications are

less important than when the evidence is well outside the jury’s own experience.”123 Whether two

cuts look like they could have been made from the same knife does not appear to be a question so

far removed from a jury’s common experience as to require the possession of advanced degrees or

a great deal of highly specialized training. Detective Sanchez did have some training and experience

as a homicide detective. We have recognized in the past that a police officer with experience in a

homicide division may well have expertise regarding whether a certain type of injury was caused by

a deadly weapon.124 We conclude that the trial court would not have abused its discretion if it had

found that Detective Sanchez possessed sufficient expertise to give an expert opinion, based on his

experience as a police officer and a homicide detective, regarding whether the wounds suffered by

the cat could have been inflicted by the same knife that killed the victim. Point of error thirteen is

overruled.

                               D. Psychiatric Interview/Testimony

                                             1. Interview

       In point of error fourteen, appellant contends that the trial judge erred “in allowing the state’s

psychiatric experts to interview appellant.” Appellant argues that “to allow two experts to ‘tag team’



       122
             Rodgers v. State, 205 S.W.3d 525, 527-28 (Tex. Crim. App. 2006) (quotation marks
omitted).
       123
             Id.
       124
             Tucker v. State, 274 S.W.3d 688, 692 (Tex. Crim. App. 2008).
                                                                                          DAVIS – 50

appellant and present evidence solely focused on his future dangerousness, through the use of novel

and un-tested psychiatric methodology and behavior prediction is to extend Lagrone to ridiculous

and unconstitutional lengths.” He also argues that a State expert cannot interview appellant on future

dangerousness issues if appellant’s expert intends to testify only on mitigation issues unrelated to

future dangerousness. Appellant also mentions a trial objection to having an interview conducted

by a State’s expert that is from a different field than the defense expert.

        To the extent that appellant is complaining that the trial court allowed two of the State’s

experts to interview him, that complaint is unsupported by the record. The record shows that

appellant was interviewed by only one of the State’s experts, the psychiatrist Dr. David Self. While

Dr. Thomas Allen, the State’s psychologist, did testify during the punishment phase, he did not

interview appellant. To the extent that appellant is complaining of the methodology used by the

State’s experts, that issue is addressed in point of error fifteen.

        To the extent that appellant is complaining that the trial court erred when it allowed Dr. Self

to interview appellant, that complaint is without merit. The defense expressed its intention to present

the testimony of its own psychiatrist, Dr. Stone, regarding mitigation issues, based, in part, on a

personal interview with appellant. The State then requested that appellant submit to an interview

with its own expert. Defense counsel conceded that a State expert could conduct a psychiatric

examination of appellant but expressed concern about the scope of the examination. Specifically,

defense counsel stated that his expert would not offer an opinion regarding appellant’s future

dangerousness but would examine appellant on the issues of “diminished capacity at the time,

mitigating factors that are now relevant in terms of the effects of drugs taken, remorse, and

adjustment to incarceration.” Appellant objected to being interviewed by a psychologist and
                                                                                        DAVIS – 51

submitting to any sort of psychological testing, including a psychopathy checklist interview, when

his expert was not going to be conducting any testing. The trial court agreed with the defense that

the State’s psychologist should not interview appellant and that the State’s psychiatrist should not

conduct a HARE psychopathy checklist, and the trial court ruled accordingly. The discussions

relating to the scope of the examination by the State’s expert occurred over a two-day period, with

the defendant ultimately waiving his Fifth Amendment right against self-incrimination solely with

regard to submitting to an examination by the State’s psychiatrist.

       It is unclear that appellant has preserved any error. He received relief from the trial court

regarding what expert could examine him and the scope of that examination. It is not clear to us that

he effectively communicated to the trial court that he still had remaining objections to the

procedure.125

       Even if error were preserved, we find his contention to be without merit. Appellant

acknowledges, as he must, that the trial court could order him to submit to an interview from a State

mental health expert;126 he complains only about the scope of the examination. But the subject

matter of the defense psychiatrist’s interview—“diminished capacity at the time, mitigating factors

that are now relevant in terms of the effects of drugs taken, remorse, and adjustment to

incarceration”—are factors that could be taken into account in determining future dangerousness.

Appellant’s attempt to draw a hairsplitting distinction between these topics and a State expert’s



       125
             See TEX . R. APP . P. 33.1(a)(1)(A) (party’s complaint must be made with “sufficient
specificity to make the trial court aware of the complaint, unless the specific grounds were apparent
from the context”).
       126
          See Chamberlain v. State, 998 S.W.2d 230, 234 (Tex. Crim. App. 1999); Lagrone, 942
S.W.2d at 611.
                                                                                          DAVIS – 52

ultimate opinion as to future dangerousness is untenable and conflicts with the underlying rationale

for the Lagrone rule: “[I]f a defendant breaks his silence to speak to his own psychiatric expert and

introduces that testimony which is based on such interview, he has constructively taken the stand and

waived his fifth amendment right to refuse to submit to the State’s psychiatric experts. The focus is

the defendant’s choice to break his silence.”127 Point of error fourteen is overruled.

                                             2. Testimony

       Appellant’ fifteenth point of error reads: “The trial judge erred in allowing the admission of

psychiatric testimony which did not satisfy constitutional admissibility.” In his supporting argument,

however, appellant does not rely upon any constitutional provision or cite any cases deciding an issue

on constitutional grounds. Instead, appellant argues within his brief that the testimony of Dr. Self

and Dr. Allen regarding appellant’s future dangerousness failed to satisfy the criteria for

admissibility under Rule 702. Appellant argues that the State did not establish with any degree of

specificity how the doctors were qualified to testify as to their opinions regarding appellant’s future

dangerousness and failed to carry its burden of proving the doctors’ testimony reliable.

       Appellant does not allege in his brief that he objected to the testimony of these expert

witnesses. Ordinarily, an objection is required to preserve error for review.128 An appellant is

obligated to point out to this Court where the record shows that he has preserved error on his




       127
             Chamberlain, 998 S.W.2d at 234.
       128
             TEX . R. APP . P. 33.1(a)(1).
                                                                                            DAVIS – 53

claim.129 In discussing the substance of his claim, appellant refers to a Daubert130 hearing held by

the trial court on the admissibility of the expert testimony. In an abundance of caution, we have

reviewed the transcript of this hearing to determine whether an objection was lodged. Both the

prosecutor and defense counsel questioned the expert witnesses on their qualifications and

methodology. The trial court expressly found both experts to be qualified, their methodologies to

be accepted by the relevant scientific community, and their testimony to be relevant and reliable in

helping a jury understand the issue of future dangerousness. Appellant did not, during this hearing,

lodge an objection to the testimony of these witnesses. Defense counsel did not suggest to the trial

court that the witnesses were unqualified or the methodologies unreliable, nor did he present any

evidence to that effect. Appellant has failed to show us that he has preserved error.

       Even if we found that appellant had lodged a sufficient objection at trial, he has failed to

present us with any reason to find the expert testimony to be inadmissible. He presented no evidence

at trial, nor does he present any argument on appeal, to affirmatively demonstrate the experts’ lack

of qualification or the unreliability of the methodologies employed. Appellant’s only argument is

that the State failed in its burden to show that the experts were qualified and the methodologies

reliable. In that respect, we conclude that appellant is mistaken.

       Dr. Self testified that he served as a senior psychiatrist with the forensic service at Rusk State

Hospital, had a private practice specializing in criminal forensic psychiatric consulting for both the

defense and the prosecution, and was a clinical assistant professor in the Department of Psychiatry



       129
          Russeau v. State, 291 S.W.2d 426 (Tex. Crim. App. 2009) (citing TEX . R. APP . P. 33.1(a)
& 38.1(h)).
       130
             Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993).
                                                                                       DAVIS – 54

at the University of Texas, Southwestern, at Dallas. Dr. Self received his medical degree from the

University of Texas Medical Branch at Galveston and completed a three-year residency in

psychiatry. He was board certified by the American Board of Psychiatry and Neurology in 1993 and

had been in private practice since 1995. Dr. Self testified that he belonged to the American

Psychiatric Association, the Texas Society of Psychiatric Physicians, and the American Academy

of Psychiatry and the Law. He also testified that he served on the Texas Manifest Dangerousness

Review Board.

       Dr. Allen testified that he was a forensic psychologist with a private practice. He received

his master’s degree in psychology from Texas A&M University, College Station and a Ph.D. in

psychology from Texas A&M University, Commerce. Dr. Allen completed a year-long pre-doctoral

internship in the forensic psychiatric unit at Rusk State Hospital and a post-doctoral internship in

neuropsychological testing at University Park Hospital. He was licensed to practice psychology in

1985, and he began working in the area of forensic psychology two years later. These qualifications

provided the trial court with a more than adequate basis for admitting Dr. Self’s and Dr. Allen’s

testimony under Rule 702.131

       Dr. Self and Dr. Allen also testified regarding their separate methodologies. Dr. Self, who

interviewed appellant, first described the various methods of assessing future dangerousness. He

testified that his approach, which he described as “probably the best accepted approach right now,”




       131
            See McBride v. State, 862 S.W.2d 600, 607-08 (Tex. Crim. App. 1993) (upholding the
trial court’s discretion in allowing future dangerousness testimony based on credentials similar to
those in this case); Joiner v. State, 825 S.W.2d 701, 708 (Tex. Crim. App. 1992) (upholding the
admission of future dangerousness testimony based on similar credentials).
                                                                                           DAVIS – 55

was a combination of actuarial prediction and the anamnestic method.132 Dr. Self explained that he

looked at a list of factors that had been most strongly associated with the increased risk of future

violence and evaluated to what degree those factors were present in the subject. He also examined

the background of the subject and looked for additional clues as to factors that aggravate or mitigate

the risk of violence. Dr. Self identified these factors as straight-forward demographic, personality

feature, historical, and contextual factors. He also looked at the availability of victims, clinical

issues such as major psychotic illnesses, and substance abuse. Dr. Self described this method as risk

assessment and testified that he would not give a precise number, but would describe a person with

the defendant’s characteristics as a low, medium, or high risk for future dangerousness.

        Dr. Allen, who did not interview appellant, explained that his methodology for risk

assessment involved the collection of data pertaining to any history of violence and criminality. He

described the tools used to collect that data and testified that he used the HCR-20 and the HARE

psychopathy checklist. Dr. Allen testified that both assessment tools are widely published, have been

subjected to peer review, and are relied upon regularly by other psychologists. He explained that

while the HCR-20 did not require much training, the HARE checklist did; Dr. Allen testified that

he had been trained in the use of the checklist. He testified that he had been using the HCR-20 for

ten years and the HARE checklist for twelve. Dr. Allen further explained that the assessments do

not require an actual face-to-face interview with a subject, but that clinical correlation is necessary.

He, like Dr. Self, stated that he could not provide guidance on what exactly a subject would do in

the future, but could classify the subject as low, medium, or high risk for continuing acts of violence.


        132
            Dr. Self contrasted his approach with what he believed was a method that had “kind of
tainted the field . . . the kind of the Dr. Death approach to things where just on someone’s personal
experience and judgment and hunches they make absolutive statements. I don’t do that.”
                                                                                         DAVIS – 56



       In determining whether evidence derived from a “soft science” such as psychology is

sufficiently reliable, we examine: (1) whether the field of expertise is a legitimate one, (2) whether

the subject matter of the expert's testimony is within the scope of that field, and (3) whether the

expert's testimony properly relies upon and/or utilizes the principles involved in the field.133 The

testimony submitted by the State appears to meet these requirements, and appellant has submitted

nothing in rebuttal. Point of error fifteen is overruled.

                               E. Challenges to the Death Penalty

       In points of error sixteen through twenty-six appellant raises challenges to the Texas death

penalty scheme that we have already rejected. For each, we find it sufficient to set out appellant’s

claim and to footnote a case or cases in which the claim was rejected. In point of error sixteen,

appellant alleges that the “10/12 rule” violates the Eighth and Fourteenth Amendments of the United

States Constitution.134 In point of error seventeen, appellant alleges that the future dangerousness

inquiry results in the arbitrary and disproportionate imposition of the death penalty in violation of

the Eighth Amendment of the United States Constitution.135 In point of error eighteen, appellant

argues that the future dangerousness scheme violates the Texas constitutional proscription against

cruel or unusual punishment.136 In point of error nineteen, appellant complains that article 37.071



       133
             Nenno v. State, 970 S.W.2d 549, 561 (Tex. Crim. App. 1998).
       134
           Smith v. State, 297 S.W.3d 260, 278 (Tex. Crim. App. 2009); Ladd v. State, 3 S.W.3d
547, 574 (Tex. Crim. App. 1999).
       135
             Green v. State, 912 S.W.2d 189, 195 (Tex. Crim. App. 1995).
       136
             Anderson v. State, 932 S.W.2d 502, 509 (Tex. Crim. App. 1996).
                                                                                          DAVIS – 57

is unconstitutional for a number of reasons: because the jury is given discretion to consider what it

decides to be mitigating,137 because the term “probability” in the future dangerousness issue dilutes

the State’s burden of proof,138 because the mitigation special issue requires the defendant to disprove

that a death sentence is warranted,139 because the instructions result in confusing and conflating the

future dangerousness and mitigation issue inquiries,140 and because prosecutors are conferred with

standardless and unfettered discretion to seek the death penalty.141 In points of error twenty through

twenty-two, appellant alleges that the jury charge improperly failed to define the terms “probability,”

“personal moral culpability,” “moral blameworthiness,” “criminal acts of violence,” and “continuing

threat to society.”142 In point of error twenty-three, appellant alleges that Article 37.071, section

(2)(e) is unconstitutional because it does not assign a burden of proof to the mitigation question in

sentencing.143 In point of error twenty-four, appellant challenges the constitutionality of Article

37.071, sections 2(e) and (f), arguing that the statute improperly shifts the burden of proof to the

defense to offer mitigating evidence to outweigh the evidence of moral culpability.144 In point of

error twenty-five, appellant alleges that the requirement that the jury find the probability of future



       137
             Whitaker v. State, 977 S.W.2d 595, 599-600 (Tex. Crim. App. 1998).
       138
             Jones v. State, 843 S.W.2d 487, 496 (Tex. Crim. App. 1992).
       139
             Busby v. State, 990 S.W.2d 263, 272 (Tex. Crim. App. 1999).
       140
             Luna v. State, 268 S.W.3d 594, 609-10 (Tex. Crim. App. 2008).
       141
             Id. at 608.
       142
             Id. at 609.
       143
             Smith, 297 S.W.3d at 277.
       144
             Busby, 990 S.W.2d at 272.
                                                                                           DAVIS – 58

dangerousness beyond a reasonable doubt violates the Eighth and Fourteenth Amendments of the

United States Constitution.145 In point of error twenty-six, appellant alleges that the lethal injection

protocol used by Texas is unconstitutional.146 These issues have previously been considered and

rejected by this Court. It is also sufficient to dispose of such claims “by recognizing that the trial

court submitted a charge consistent with applicable state statutes, which have withstood numerous

constitutional challenges.”147 Points of error sixteen through twenty-six are overruled.

       We affirm the judgment of the trial court.

Delivered: June 16, 2010
Publish




        145
              Jones, 843 S.W.2d at 496.
       146
              Smith, 297 S.W.3d at 277 (claim not ripe for review on direct appeal).
        147
              Saldano v. State, 232 S.W.3d 77, 107 (Tex. Crim. App. 2007).
