
 


 


 

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS





AP-75,363


MAX ALEXANDER SOFFAR, Appellant

v.


THE STATE OF TEXAS




ON DIRECT APPEAL
FROM CAUSE NO. 319724 IN THE 232ND DISTRICT COURT
HARRIS COUNTY



 Per curiam.  Price, J., concurred on point of error four and otherwise joined. 
Keasler, J., filed a concurring opinion in which Hervey, J., joined.
 
O P I N I O N

 
 In 1981, a jury convicted Max Alexander Soffar of capital murder.  The trial judge
sentenced him to death, in accordance with the jury's answers to the special issues. We
affirmed his conviction and sentence on direct appeal (1) and denied his initial application for
a writ of habeas corpus.  
	Soffar then filed a federal petition for a writ of habeas corpus.  Ultimately, in 2004,
concluding that Soffar was denied effective assistance of counsel at trial, the United States
Court of Appeals for the Fifth Circuit remanded the case to the district court for entry of an
order setting aside Soffar's conviction and sentence. (2) 
	In February 2006, Soffar was retried.  A jury convicted him of capital murder, (3) and
based on the jury's answers to the special issues, the trial judge sentenced Soffar to death. (4) 
	Soffar now appeals his conviction and sentence. (5)  After reviewing Soffar's thirty-three
points of error, we find them to be without merit.  Consequently, we affirm the trial court's
judgment.
Facts
	Soffar was convicted of capital murder and sentenced to death for participating in the
robbery and execution-style killing of three people at the Fairlanes Bowling Alley in Houston
on the night of July 13, 1980.  The Fairlanes Bowling Alley was located near the intersection
of Windfern Road and Northwest Freeway (U.S. Highway 290).  Tommy Temple, Steve
Sims, and Greg Garner, employees at the bowling alley, and Arden Alane Felsher, Temple's
girlfriend, were shot by Soffar and Latt Bloomfield.  Garner survived, despite being shot in
the head.
	Two unidentified individuals broke into the bowling alley on July 13th shortly after
it closed.  They gained entry by breaking a glass door on the side of the building and stole
several items from the vending machines.  Because the door could not be repaired on the
13th, Jim Peters, the general manager, asked Temple, Sims, and Garner to stay at the bowling
alley until the cleaning crew was scheduled to arrive at 4:00 a.m. the next morning.
	Garner called his mother, Nellie, at 12:08 a.m. on July 14th.  He told her, "[S]omeone
is here and I need help."  She asked him what was wrong, and he said, "[T]hey just left."  He
said something in a "garbled" voice that sounded like, "[S]omebody hit me with a fish." 
Nellie heard a phone ringing in the background, and Garner put her on hold.  When Garner
got back on the line, Nellie asked him if he was bleeding.  He responded, "[Y]es mom the
side of my face and I'm holding my eyeball."  Nellie then sent her husband, Ira, to the
bowling alley, and she followed shortly thereafter.	
	Peters called the bowling alley at approximately 12:15 a.m.  Garner answered the
phone after a few rings.  According to Peters, Garner's voice was garbled, and it was hard
to understand him.  Peters asked Garner if everything was all right, and Garner said, "either,
"'[H]e" or "'[T]hey made me lay down' or 'made us lay down.'"  Peters called the police and
immediately drove to the bowling alley.
	Ira arrived at the bowling alley first.  He parked directly in front of the entrance doors
and brightened his headlights.  He saw Garner raise his head, and he observed someone else
lying on the floor next to him.  Ira went inside and saw Garner, a female, and two males lying
on their stomachs.  They were positioned parallel to the front door, with their heads toward
the snack bar, and their feet toward the control booth.  Garner was closest to the door,
followed by Felsher, Sims, and Temple.  All had been shot in the head.  Felsher was "gasping
for breath," and Sims and Temple were dead.  Ira tried to use the phone at the bowling alley
but he "couldn't get an outside line," so he went to a church across the street and asked
someone there to call the police.  He went back to the bowling alley and asked Garner if the
people that shot him were white or black.  Garner replied, "White." 	
	Nellie and Peters arrived at the bowling alley, followed by the police and the
paramedics.  The paramedics unsuccessfully tried to save Felsher's life and sent Garner to
Hermann Hospital via Life Flight.  A police officer found Sims's wallet in the parking lot. 
Felsher's purse was on the counter of the control booth, along with a white plastic jug. 
Peters discovered that approximately $1,000 in cash had been taken from the control center
register.  He observed that the "folding bills" were taken, but not the coins.  He further
observed that the cash drawers for the snack bar and the alcohol bar were in the office, and
the office door was closed and locked.  
 None of the latent fingerprints lifted from the front door and counter area led to a
suspect.  Latent-print examiner Leonard Cooper testified that he did not dust the white plastic
jug for prints because it had a rough surface, and he "didn't feel that it would develop a
print."  Peters testified that, by 3:00 or 3:30 a.m., the police had left and the victims had been
removed from the scene.  The cleaning crew arrived at 4:00 a.m. and cleaned the entire
bowling alley.  When police asked Peters about the white plastic jug, he told them that he did
not know what had happened to it.  Detective M.F. Kardatzke testified that he determined
that the white plastic jug had been emptied and washed.   
	Each of the victims suffered one gunshot wound to the head.  Felsher had an entry
wound on her right cheek and an exit wound on the back of her head.  Sims had an entry
wound on the back left portion of his head and an exit wound on his left cheek.  Sims also
had several shallow abrasions on his chest, and a small bullet fragment was recovered just
beneath his skin in that area.  Temple was shot in his left temple, and the bullet lodged in his
right ear canal.  Felsher, Sims, and Temple died from their gunshot wounds.  Garner had an
entry wound above his left ear and an exit wound below his left eye.  He lost his eye and
suffered severe brain trauma.  
	When crime-scene investigator D.M. Rushing processed the scene on July 14th, he
found one fired bullet under Felsher, a second fired bullet under Sims or close to him, and
several bullet fragments under or around Sims.  When Officer Ted Thomas later went to the
bowling alley on July 23rd, he discovered four bullet holes in the carpet, a third fired bullet
in the padding of the carpeting, and a "divot" in the concrete floor beneath the carpet pad. 
Thomas also found a bullet fragment in the "divot" and another bullet fragment "right at the
same location . . . on the back of the carpet, as the carpet was rolled back."  Firearms
examiner Charlie Anderson determined that the bullets were lead and that they were .38 or
.357 caliber, but he was unable to determine "the exact manufacturer and exact configuration
of them."     
	On July 15th, truck driver Andrew Davis found two wallets on the inbound side of
Northwest Freeway near the bowling alley.  He gave them to Houston police officer R.O.
Olive and showed him the location where he found them.  Olive searched the area and found
two credit cards that belonged to Ira Garner.           
	After being life-flighted to the hospital, Garner underwent brain surgery and remained
in the hospital for several weeks.  Dr. Phillip Leon Gildenberg, the neurosurgeon who treated
Garner, testified that Garner suffered "quite a severe trauma to the brain" and that his injury
had the potential to affect his memory.  Gildenberg observed that Garner was "still having
problems with thinking and with memory" several weeks after his injury.  Gildenberg had
Garner examined by a neuropsychologist, who determined that Garner's "memory quotient"
was "quite low."       	
	Police interviewed Garner about the offense while he was recovering in the hospital. 
In his first interview, on July 17th, three days after having surgery, Garner described the lone
assailant as a "20 foot" tall black man.  He said that the man came to the front door after the
bowling alley closed and that Sims opened the door for him.  The man asked for some water
and was carrying a white plastic container.  The man then went outside and came back in
with a gun.  He wanted the money out of the register and made everyone lie down on the
floor.  After the man got the money, he shot them.  Garner stated that he was the third one
shot.
	Garner added more details in his interview on July 18th.  This time he said that the
assailant was white, around 25 years old, and had "weird" hair.  Garner stated that he parked
his car at the church across the street before the incident occurred, that he was bowling on
lanes 25 and 26 when the man came to the door with a pitcher, that Sims walked outside with
the man, that the man had a gun on Sims when they came back inside, that the man carried
a gun with a round barrel in his right hand, that the man took the victims' wallets, and that
none of the victims said anything or tried to run.  Garner "passed out" when the man shot
him; he got up and used the telephone after he awoke.  He remembered speaking to his
mother and Peters on the telephone.  Garner also worked with police to sketch a diagram of
the crime scene which depicted Felsher lying closest to the door, followed by Sims, Garner,
and Temple.
	Garner repeated this story to police on July 19th; however, he said that he did not
know if the assailant was carrying anything to hold the water he requested.  He again
described the assailant as white and a little taller and bigger than himself.  He also said that
his gun was about six to eight inches long.  He said that he walked up to the front when Sims
and the man came back inside.  The man first asked Garner to get the money out of the cash
register, and Garner replied that he did not know how to do so.  The man called Felsher and
Temple up to the front.  He made them lie face down on the floor and put their hands above
their heads.  No one said anything or screamed.  Sims got up to get the money out of the
register and then laid back down on the floor.  The man then said, "[G]oodbye," and shot
them.  Garner heard four shots and passed out.  He woke up, used the telephone, and went
over to Felsher, and then passed out again.  He stated that he laid back down on the floor in
a different spot after using the telephone.  
	On July 20th, Garner told police that the assailant was white, 25 to 30 years' old, a
little bit over six feet tall, weighed over 155 pounds, had combed-back hair that was darker
than blonde, and had no facial hair.  This time, Garner stated that the man was "finding some
air for his tires," and he did not remember anything about the man requesting water.   
	Garner also assisted police in creating a composite sketch of the suspect on July 30th. 
The police distributed copies of the composite along with a description of the suspect to the
news media.  The description of the suspect stated that he was a white male, twenty-five to
thirty years old, six feet, two inches, 175 to 185 pounds, had no facial hair, had long brown
or dark brown hair over his ears that was combed back, and that he held the gun in his right
hand.  Fairlanes offered a $10,000 reward in conjunction with the case, and someone later
added $5,000 to it.  
	Detective Kardatzke interviewed Garner again after he was released from the hospital. 
On the morning of August 5th, Garner assisted a portrait artist in creating another drawing
of the suspect. 
	Garner testified at trial, twenty-six years after the offense.  He testified that he planned
to stay late at the bowling alley on the night of the offense because someone had broken in
the previous night.  He parked his car at the church across the street before the bowling alley
closed at 11:30 p.m.  He was bowling when he noticed Sims talking to a man by the control-
booth counter.  He did not recall how the man entered the bowling alley.  He bowled a few
more frames, and then he walked over to Sims and the man to see what they were talking
about.  When he got near them, he saw the man pointing a gun at Sims.  The man asked
Garner if he knew how to open the register, and Garner replied, "No, I do not."  The man told
Garner to lie down and asked if anyone else was in the building.  Either Sims or the man
called Felsher and Temple to come over from the bar area.  The man asked for their wallets;
Garner held his in the air, and the man grabbed it.  Next, he heard "two or three" gunshots
and passed out.  After he awoke, he remained still for ten to fifteen seconds to make sure the
man was gone.  When he got up to use the telephone, he had to move Sims because Sims was
lying on his leg.  Garner used the telephone in the control booth and called his mother.  While
he was talking to his mother, Peters called on the other line.  Garner put his mother on hold
and spoke to Peters.  He did not remember what they talked about and did not remember
talking to his mother again after ending his conversation with Peters.  He remembered seeing
headlights come up to the front door and his father walking into the bowling alley.  The next
thing he remembered was waking up in the hospital.
	Garner testified that the assailant was white, in his mid-twenties, about the same
height as Garner (5' 11"), with a medium build and dark hair that was at least to his
shoulders.  Garner did not remember whether he had any facial hair.  He testified that the
assailant held the gun in his right hand. 
	Officer Raymond Willoughby stopped Soffar for speeding on a motorcycle in League
City shortly after 8:00 a.m. on August 5, 1980.  Soffar told Willoughby that his name was
Mark Scott.  In his offense report, Willoughby stated that Soffar was 6' 1", 160 pounds, with
brown hair, a moustache, and a beard.  Willoughby spoke to the dispatcher and discovered
that the motorcycle had been reported stolen.  He asked the dispatcher to send backup,
ascertained Soffar's real name, placed him under arrest, and read him his Miranda rights. (6) 
He asked Soffar to empty his pockets, which contained "quite a few pieces of jewelry, coins,
papers," and what Willoughby believed to be a small amount of marijuana.  Soffar told
Willoughby that he obtained the jewelry from a burglary he committed.  Willoughby placed
Soffar in handcuffs and put him in the back of his patrol car.  
	Detective Jim Palmire from the Friendswood Police Department arrived and spoke to
Soffar for a few minutes while he was seated in the back of the patrol car.  Palmire testified
that he sat in the front seat and read Soffar his Miranda warnings at 8:23 a.m.  Soffar told
Palmire that "he wasn't going to no penitentiary over a stolen motorcycle" and "[t]o check
Houston for bigger things."  When Palmire asked Soffar what he was talking about, Soffar
did not respond.  Palmire testified that he did not ask him any other questions.  
	Willoughby testified that Soffar made several spontaneous statements while being
transported to the League City Police Department.  Soffar said that he had been "giving some
information" to Sergeant Bruce Clawson with the Galveston County Sheriff's Department. 
Willoughby understood that to mean that Soffar was an informant.  Soffar said that "if he
was going to go to prison it would not be for a motorcycle theft it would be for something
bigger."  He stated that "he had information about the bowling alley murders that had
occurred in Houston a few weeks before."  He also said he wanted to talk to Sergeant
Clawson.  When they arrived at the police department, Willoughby told Lieutenant Steve
Johnson that Soffar said that he knew about the bowling-alley murders and that Soffar
wanted to talk to Clawson.  Clawson arrived shortly thereafter and accompanied Soffar,
Johnson, and Willoughby to a magistrate's office at about 10:00 a.m.  They returned to the
police department after Soffar received his statutory warnings from the magistrate.  
	Assistant District Attorney Terry Wilson arrived at the police department around noon
and spoke with Soffar.  Wilson recorded their conversation on a tape recorder that he kept
in his pocket.  When asked if Soffar knew the conversation was recorded, Wilson testified,
"Not as far as I know he did not."  Wilson testified that he read Soffar his Miranda warnings
before speaking with him.  Soffar told Wilson that he and his friend, Latt Bloomfield, broke
into the bowling alley the night before the murders.  Soffar gained entry by kicking in a side
window.  They returned the next night because Bloomfield wanted to rob the bowling alley. 
Soffar parked outside by the front doors in Bloomfield's brown Thunderbird after the
bowling alley closed.  Bloomfield went inside with his gun, which was a blue ".38" or ".357"
with a three-inch barrel.  Soffar saw the people inside lie down on the ground.  He then heard
two or three shots, then Bloomfield ran outside, and they drove away.  Bloomfield told him
that he shot the people because "somebody moved in the back" and "it scared him."  They
obtained between $500 and $700 in small bills from the robbery and bought drugs on Scott
Street afterward.
	Soffar gave his first written statement to Detective Gil Schultz shortly after 2:00 p.m. 
Prior to taking Soffar's statement, Shultz knew that two other people had admitted
burglarizing the bowling alley the night before the murders and had been arrested for that
offense.  In his first written statement, Soffar recited basically the same story that he told
Wilson.  However, he clarified that he "heard about five shots altogether" and that they
bought "about $380.00 in drugs" afterwards.  He added that Bloomfield robbed a "U-Totem"
convenience store in Galveston after they bought drugs.  Soffar was transported from the
League City Police Department to the Houston Police Department later that day.
	On the morning of August 6th, Detective Kenny Williamson questioned Soffar in a
tape-recorded interview.  Soffar maintained that Bloomfield committed the robbery while he
waited outside in the car.  During the interview, Williamson drew a diagram of the bowling
alley and the parking lot.  Soffar noted on the diagram such details as the position of the car
in the parking lot, the location of the lanes, the counter, the snack bar, and the people inside
the bowling alley.  After their interview, Soffar was placed in a lineup while Bloomfield was
placed in another.  Garner viewed both lineups but was unable to positively identify his
assailant.  When he viewed Soffar's lineup, Garner told Detective Kardatzke that "it would
look like three or four."  Soffar was the number three participant in the lineup.
	On the afternoon of August 6th, Soffar gave his second written statement to Detective
James Ladd.  He again maintained that Bloomfield committed the robbery while he waited
outside in the car.  He added that Bloomfield had pulled a woman's stocking over his hair
before going into the bowling alley to rob it and that the man they later bought drugs from
was called "Pops" or "Pop."  He further stated:  "I was back over at Pops a few weeks ago
and told him about this deal at the bowling alley.  I asked him if he had heard about it and
that Latt and I had done it.  He thought that we were just kidding."  
	Ladd testified that, in the afternoon, he and Williamson left the police department with
Soffar so that Soffar could "point out some of the locations that he had been talking about." 
The detectives first drove Soffar to the Bunker Hill location of the Fairlanes Bowling Alley,
located just south of I-10.  Ladd testified that they wanted to "let [Soffar] comment on the
location . . . since [they] were not at the location where the murders had happened but a
different bowling alley all together [sic]."  Ladd testified that when they pulled into the
parking lot, Soffar looked around and said that it did not look like the right place.  They then
drove to the Windfern location, where the offense had occurred.  Ladd testified that Soffar
said that it "looked right."  Soffar then showed the detectives where he and Bloomfield
bought drugs after the robbery.  Soffar pointed out Lawrence Bryant, whose nickname was
"Papa," and Williamson spoke to Bryant and Bryant's girlfriend, Mable Cass.  Finally, Soffar
showed the detectives the U-Totem convenience store that Bloomfield allegedly robbed. 
Ladd later ascertained that Bloomfield had not robbed the store.  The detectives returned
Soffar to jail around 11:00 p.m.
	The next day, August 7th, Soffar asked to speak with Ladd and Williamson again. 
Williamson testified that Soffar was upset because Bloomfield had been released while he
was being charged.  That evening, Soffar signed his third written statement.  Ladd testified
that, before making his written statement, Soffar said that he had not broken into the bowling
alley the night before the instant offense.  In his third statement Soffar stated:	My name is Max Soffar.  I have been in jail since Tuesday morning for
this bowling alley deal.  I gave two previous statements, one to
detective Schultz and one to detective Ladd.  I didn't tell the whole
truth in those statements and want to now so that I don't take this whole
thing by myself.  
 
		One thing that I didn't tell the truth [about] was that Lat[t]
Bloomfield and I did this thing when we first got to the bowling alley,
not like I said about being there in the parking lot for awhile.  Lat[t]
drove in and we were in his brown thunderbird.  Lat[t] pulled right to
the front door so that the passenger side was next to the bowling alley. 
I think that there was a couple of cars in the parking lot when Lat[t]
pulled to the door.  Lat[t] pulled a stocking over his hair so that his hair
would be pulled back.  I pulled up my t-shirt over my nose and mouth. 
Lat[t] had his 357 revolver which I think is an R-G model.  This gun
had about a three inch barrel.  He had the gun under his shirt when we
walked in a guy asked what we were doing.  Lat[t] pulled the revolver
and stuck [it] in this guy[']s face and said, 'This is a robbery.'  Lat[t]
pulled this guy by the hair and made him get down on his knees.  Three
other people were over by the snack bar and they saw the man on his
knees and walked up.  This was [sic] two dudes and a girl.  Lat[t] told
them to get on the floor and if they didn't do what he told them that he
would shoot this first guy who was already on the floor.  They got down
on their knees away from the counter and Lat[t] made them come closer
to the control counter and they did.  They were laying down from the
door so that there was a dude and then a girl and then another dude and
then the last dude.  The second dude was trying to look up and Lat[t]
told him not to be looking and to turn around and lay facing the way all
the others were.  He then turned around so that they were all facing
back towards the snack bar.  The second dude kept looking around so
Lat[t] fired a warning shot into the floor.  The girl screamed and then
Lat[t] told her to shut up and she kept screaming.  Lat[t] kicked the girl
in the back and the second dude who was the one who kept looking up
started to raise up.  He was about half way up when La[t] shot him in
the back of the head.  Then Lat[t] just turned around and shot the third
dude.  This third dude was the first one Lat[t] grabbed and made get on
the floor.  He shot him the same way as the first one that he shot.  Lat[t]
threw me the gun and told me to shoot the other two.  I hesitated and
then he said, 'Shoot them now.'  I aimed the gun at the other guy who
was still left who was closest to the door and fired one time.  I hit him
in the back of the head behind the ear.  I walked around the other side
of them and hesitated and Lat[t] said, 'Shoot her.'  She had her face
down and she just looked up at me and I aimed and turned my head and
shot her.  I think I hit her in the cheek.  I had the gun and ran around
and looked in the cash register over by where you get the shoes.  I got
all the bills and a little of the change and then went to the office but the
door was locked.  I went over to the cash register by the snack bar and
took bills out of it too.  I put the money in my pockets.  I went back by
the office and tried to force the door open but I couldn't get it opened. 
Lat[t] was looking under the counter for a money bag and I think he got
50 or 60 dollars.  He walked over by the office and I told him I thought
I saw some headlights.  I went outside but I didn't see anyone so when
I came back in Lat[t] was rumageing [sic] through their pockets and
took the wallets out of their pockets.  He took the money and I think
that he kept the wallets.  We looked around to make sure that nobody
was looking and we didn't see anybody.  I asked him if he wanted to
check in the back and he said no.  So, we looked in the bathrooms
making sure no body [sic] was in there.  Then we left.  I still had the
gun.  Lat[t] drove and we had the windows down to his car.  He made
a right on the highway and drove down for a little bit and then turned
around and came back past the bowling alley.  I asked him why he shot
the dudes and he said he shot the dude for raising up and playing hero. 
He said he made me shoot the other two so that I would be as guilty as
him if we got caught.  I put the gun under the front seat after I reloaded
it and it only had one live bullet in it before reloading.  I don't know
where the gun is now.  The last time I saw the gun was I believe last
Saturday night and Lat[t] had it at that time.  We went to score some
pills and got 24 pills over at the dope house.  These were preludins. 
After the gas and pills I got 95 dollars out of the deal and I think Lat[t]
got a lot more.  We went over to my house and did some preludin and
Lat[t] said he was afraid someone had seen his car so he went and took
it home.  He walked back over to my house that night and we did the
rest of the pills.  We stayed up all day and went out to the park the next
day.  I was scared and that is the reason that I did not tell the whole
truth before and I feel like shit and feel bad about what happened and
ought to take my punishment for it.  I think Lat[t] and me both ought to
pay for what we did.   

	Soffar also met with Kardatzke that evening, and they sketched a diagram of the crime
scene.  The diagram depicted a male victim lying closest to the door, followed by a female,
a second male, and a third male.	
	Lawrence Bryant testified at Soffar's 1981 trial, but he was deceased at the time of
Soffar's 2006 trial.  The State read his prior testimony into the record.  Bryant testified
regarding a conversation he had with Soffar "around the last week of July" in 1980.  Bryant
was sitting in front of the residence of his girlfriend, Mable Cass, when Soffar and two other
white men drove up in a brown or beige Thunderbird.  Soffar had a gun and wanted to sell
it.  Bryant testified that the gun was a 9-millimeter nickel plated, automatic with "a clip that
goes in the bottom."  Soffar asked Bryant if he heard anything about a bowling alley getting
robbed, and Bryant said that he heard about it on the news.  Soffar asked Bryant if he would
believe that he had done it.  Bryant asked Soffar if he was crazy, and Soffar was "grinning
and laughing like it was funny."  Soffar told Bryant he "had shot three people in the back." 
Soffar also stated that the police would never catch him because "he was too slick."  Bryant
bought the gun from Soffar, but Bryant was unable to turn the gun over to the authorities
because his cousin broke into his house and stole it and sold it for dope.
	Cass testified that she was present during Soffar's conversation with Bryant.  She
heard Soffar tell Bryant that he killed four people at a bowling alley.  Soffar said, "[L]et me
show you what I shot 'em with."  Soffar took a brown paper bag out of the Thunderbird and
showed them the gun that was inside it, stating, "[T]his [is] what I shot the motherfuckers
with right here."  She described the gun as the type that has a clip in it.  
	Soffar's sister, Jackie Soffar Butler, testified that she saw Soffar on the morning of
July 14th.  Soffar's hair was a little longer than shoulder length, and he had a beard and a
mustache.  When Jackie saw Soffar again around August 1st, he asked her if she had seen
or heard about the bowling alley murders and mentioned that there was a $10,000 reward. 
Soffar stated that "the composite drawing looked like [Bloomfield] and that he wanted to turn
him in."  
	Soffar's mother, Zelda Soffar, testified at Soffar's 1981 trial, but she was deceased
at the time of Soffar's 2006 trial.  Her prior testimony was read into the record.  Zelda
testified that Soffar helped a friend move on July 12th and 13th.  Soffar received "several
cases of empty long neck beer bottles" in exchange for helping his friend move.  He came
home around 7:00 p.m. on July 13th, and Soffar went to bed after they watched television
together.  Soffar was at home when Zelda woke up early on the morning of July 14th.  They
drove to Alvin that day because Soffar wanted to sell the beer bottles for pocket money.
	Defense expert Ken Branstein, a forensic scientist, reviewed the evidence in the case. 
Branstein opined that the type of ammunition used by the assailant was a "38 police special." 
However, he acknowledged that a person "could shoot a 38 police special from a 357
Magnum gun."  Branstein believed that Garner was between Sims and Temple when he was
shot.  He concluded that "there were 4 bullets and only 4 bullets fired," including the three
bullets found at the scene, which passed through the heads of Felsher, Sims, and Garner, and
the one bullet recovered from Temple's head during the autopsy.  Branstein thought that the
physical evidence was inconsistent with Soffar's account; a fifth "warning" shot had not been
fired directly into the floor because the "fragment weight totals" did not lead to that
conclusion.  However, when cross-examined by the State, Branstein agreed that the exact
number of grains in the bullets that were fired could not be ascertained because the scene had
been contaminated.  Branstein thought that the one bullet that went through Sims created two
of the four holes in the carpet.  He opined that the bullet went through Sims's head, struck
the concrete floor at an angle, and then exited the carpet as fragments, hitting Sims in the
chest.
Sufficiency of the Evidence
	Soffar was convicted of murdering Felsher in the course of robbing Sims.  In point
of error seven, he challenges the legal and factual sufficiency of the evidence to support his
conviction.  He specifically complains that his conviction was based on his unreliable
confession, which was "dramatically at odds with the sole eyewitness's description of the
crime and with the other testimonial and physical evidence."
 In evaluating the legal sufficiency of the evidence, we view the evidence in the light
most favorable to the verdict and determine whether any rational trier of fact could have
found the essential elements of the offense beyond a reasonable doubt. (7) This "standard of
review gives full play to the jury's responsibility fairly to resolve conflicts in the evidence,
to weigh the evidence, and to draw reasonable inferences from the evidence." (8) 
	Evidence that is legally sufficient may be factually insufficient if it is so weak that the
jury's verdict seems clearly wrong and manifestly unjust, or whether, considering conflicting
evidence, the jury's verdict, though legally sufficient, is nevertheless against the great weight
and preponderance of the evidence. (9)  A factual-sufficiency review requires us to consider all
of the evidence. (10)  "A clearly wrong and unjust verdict occurs where the jury's finding is
manifestly unjust, shocks the conscience, or clearly demonstrates bias." (11) 
	In this case, there were no fingerprints matching Soffar's, the murder weapon was
never recovered, and the surviving victim was unable to positively identify Soffar in a lineup. 
However, Soffar confessed to police that he participated in the robbery and shot two of the
four victims.  He also said that he told "Pops" about his involvement in the crime a few
weeks after the crime, a fact that was later confirmed by both Lawrence Bryant and Mable
Cass.  Soffar described the murder weapon as either a .38 or a .357 caliber gun and the
State's firearms examiner determined that the bullets recovered from the scene and Temple's
body were .38 or .357 caliber.  Defense expert Branstein opined that the bullets were .38
caliber, but he acknowledged that "[y]ou could shoot a 38 police special from a 357 Magnum
gun." 
	Although there were several discrepancies between Soffar's and Garner's multiple
statements to police, some important aspects were consistent.  Additionally, portions of
Soffar's statements were consistent with some of the physical evidence.  Garner told police
and testified at trial that the robber first encountered Sims at the front of the bowling alley,
then Garner, Temple, and Felsher came up to the front.  Soffar told police that Bloomfield
first stuck the revolver "in this guy's face," pulled his hair, and made him get down on his
knees, then "two dudes and a girl" walked up.  Garner told police and testified at trial that
the robber took the victims' wallets.  Soffar told police that Bloomfield took the victims'
wallets, though he thought that Bloomfield kept them.  Soffar added that they "had the
windows down" when they left the bowling alley, and that Bloomfield "made a right on the
highway and drove down for a little bit and then turned around and came back past the
bowling alley."  One wallet was found in the parking lot and two other wallets were found
nearby on the inbound side of the highway.  
	Soffar said that five shots were fired, including a warning shot fired by Bloomfield
into the floor.  Garner told police that he thought that he was the third one shot, and he gave
varying accounts of the number of shots he heard, ranging from two to four.  One bullet was
recovered from Temple's head and three bullets were recovered from the crime scene. 
Eleven bullet fragments were also recovered from the crime scene, and there were four bullet
holes in the carpet and a divot in the concrete that contained some fragments.  Defense expert
Branstein disputed that a warning shot was fired.  However, the evidence, viewed in the light
most favorable to the verdict, could have led jurors to rationally find that there was a warning
shot.
	Soffar's sister testified that, about four days before his arrest, Soffar mentioned the
reward and said that the composite drawing looked like Bloomfield and that he wanted to
turn him in.  After he was arrested, Soffar told police different versions of the events that
transpired.  Soffar initially said that he was merely a party to the offense, claiming that
Bloomfield committed the robbery and shootings while he waited outside the bowling alley
in the car.  Soffar confessed to actively participating in the robbery and shootings only after
he learned that Bloomfield had been released from custody.   
	Garner also gave police varying accounts of what happened.  Police began questioning
Garner only three days after his brain surgery.  Garner's description of the assailant ranged
from a "20 foot" tall black man to a white man who was a little taller and bigger than
himself.  He first told police that the assailant gained entry by asking for water.  Later, he
said that the assailant asked for air for his tires.  When he testified at trial, he did not recall
how the assailant entered the bowling alley.  He was unclear on the number of shots that he
heard.  He told police that he laid down next to Felsher after using the telephone.  However,
he testified at trial that the only thing he remembered after using the telephone was seeing
headlights, his father walking into the bowling alley, and then waking up in the hospital. 
	Garner's and Soffar's accounts about the robbery and shootings varied.  Their
accounts were inconsistent regarding: whether there were one or two robbers; whether the
robber or robbers were disguised; how the robber or robbers gained entry to the bowling
alley; whether any of the victims screamed or were kicked; whether a warning shot was fired;
the positions of the victims when they were shot; whether the cash register was emptied
before or after the shootings; and whether the victims' wallets were taken before or after the
shootings.  Given the numerous inconsistencies, the jury was faced with a credibility choice. 
Garner's credibility was affected by his memory loss.  And Soffar's credibility was affected
by his (1) false confession to the burglary of the bowling alley on July 12th, (2) attempt to
blame Bloomfield for the robbery and shooting the victims while he waited outside in the car,
and (3) false accusation that Bloomfield robbed the U-Totem convenience store.  "Because
the jury is the sole judge of a witness's credibility, and the weight to be given the testimony,
it may choose to believe some testimony and disbelieve other testimony." (12)  The jury in this
case was free to take all of the evidence into account and to believe or disbelieve any portion
of Soffar's statements about the offense and other offenses, Garner's statements to police,
or Garner's trial testimony. (13)  We should afford almost complete deference to a jury's
decision when that decision is based upon an evaluation of credibility. (14)  With this in mind,
we hold that the totality of the evidence, when viewed in the light most favorable to the
verdict, was sufficient for a rational trier of fact to find the essential elements of the offense
beyond a reasonable doubt.  Further, the jury's verdict is not against the great weight and
preponderance of the evidence. (15) Nor is the evidence so weak that the jury's verdict seems
clearly wrong and manifestly unjust. (16)  Having determined that the evidence is legally and
factually sufficient to support Soffar's conviction, we overrule his seventh point of error.
Alternative Perpetrator Evidence
	At trial, Soffar wanted to present evidence that the offense was committed by an
alternative perpetrator, Paul Reid.  In his "Motion to Introduce Evidence Showing Paul
Dennis Reid to be the Real Perpetrator of the Bowling Alley Murders,"  Soffar alleged that
in 1981 or 1982, Paul Dennis Reid, a man then living in the Houston area and who is now
incarcerated on death row in Tennessee, told a friend that he had shot four people during a
robbery at a bowling alley located on U. S. Highway 290.  In the motion, Soffar stated that
he specifically wanted to introduce Reid's confession to the crime charged, evidence of
Reid's physical appearance at the time of that crime, and Reid's past criminal activity.
	In point of error one (a), Soffar alleges that the trial judge erred under Texas Rule of
Evidence 803(24) by excluding statements against interest establishing that Paul Reid told
an accomplice during a Houston robbery that he had previously shot four people in a bowling
alley on Route 290.  At issue are Reid's alleged statements to Stewart Cook, an individual
who claimed to have committed thirty to forty robberies with Reid in the Houston area from
1981 to mid-1982.  Cook gave an affidavit to Soffar's post-conviction counsel on April 1,
2000, in which he stated:
	Although Paul sometimes fired his gun during the robberies, during
most of the robberies we committed together, he never shot anyone
(often because I persuaded him not to).  However, all this changed after
one particular robbery, when Paul used his pistol.  I did not understand
why Paul had used his gun and asked him why he did it.  Paul brushed
it off, telling me he'd done much worse during a robbery he had
committed before we started working together.  Specifically, he said
that he once had a "problem" while he was robbing a bowling alley out
on Route 290, and he had shot "four people."  I asked him what
happened to them; he just said they were "okay now."  At the time, I
didn't know what he meant by this.  I now realize that he was talking
about the Fairlanes Bowling Alley murders that occurred in 1980.

	Soffar's defense attorneys wanted to prove Reid's statement by calling Cook to testify
about it at trial.  But Cook stated, on the record and outside the jury's presence, that he would
assert his Fifth Amendment right against self-incrimination if asked to testify regarding the
contents of his affidavit.  Soffar's attorneys requested that Cook be granted immunity for his
testimony, but the trial judge refused to force the State to grant immunity.  They then
attempted to call Soffar's post-conviction counsel, Jonathan Scott, to testify about his
conversations with Cook.  The trial judge inquired,  "Assuming that what Paul Reid said was
a statement against interest what's the hearsay exception for somebody to say what Cook said
to him?"  Defense counsel responded that the applicable hearsay exception was a statement
against criminal interest.  The trial judge  declined to allow Scott to testify regarding Cook's
affidavit.
	Texas Rule of Evidence 805, which governs hearsay within hearsay, provides:
	Hearsay included within hearsay is not excluded under the hearsay rule
if each part of the combined statements conforms with an exception to
the hearsay rule provided in these rules.

	Soffar's attorneys wanted Scott to take the stand to testify about (1) Reid's statement
to Cook and (2) Cook's statement to Scott.  Thus, in order to be admissible, Scott's testimony
must be justified on two levels: there must be a hearsay exception that applies to Reid's
statement to Cook and a hearsay exception that applies to Cook's statement to Scott.  
	Texas Rule of Evidence 803(24) provides an exception to the hearsay rule for
statements against the declarant's interest.  It dictates that a hearsay statement tending to
expose the declarant to criminal liability is admissible if corroborating circumstances clearly
indicate the trustworthiness of the statement.  Rule 803(24), however, "does not provide an
exception for a declarant's statements against someone else's interest, such as a third party,
co-actor, or co-defendant, unless the statement against the other person's interest is also
sufficiently against the declarant's interest to be considered reliable." (17) 
	Even assuming that the first level of hearsay (Reid's statement to Cook) conforms
with the statement against interest exception, Scott's testimony would still be inadmissible
because the second level of hearsay (Cook's statement to Scott) does not conform with that
exception.  Cook admitted in his affidavit that he committed numerous robberies with Reid,
but he stated that he had already been convicted and sentenced for some of these crimes. 
Cook admittedly did not go to the authorities when Reid initially acknowledged his
involvement in a robbery and shooting at a bowling alley, but Cook stated in his affidavit that
he did not realize the connection to the instant crime until many years later.  Even if Cook's
statements regarding his participation in uncharged robberies and his failure to report a crime
could qualify as statements against interest, Cook's statements regarding Reid's alleged
admission of guilt do not. (18)  Those particular statements are solely against Reid's interest. (19) 
Cook's statements to Scott about Reid's admission of guilt were not sufficiently against
Cook's interest to be considered reliable.  Thus, the trial judge did not abuse her discretion
in excluding Scott's testimony on this subject.  Point of error one (a) is overruled.
	In point of error one (b), Soffar asserts constitutional challenges to the trial judge's
exclusion of Reid's alleged statements to Cook.  Citing Holmes v. South Carolina, (20) Soffar 
alleges that the trial judge's application of the hearsay rule deprived him of his federal
constitutional right to present a defense.  He also claims that the exclusion of this evidence
violated his rights under the Texas Constitution. We conclude that Soffar's state
constitutional claim is inadequately briefed.  Therefore, we decline to address it because he
does not provide separate authority or argument for it. (21) 
	We now turn to Soffar's federal constitutional claim.  "[T]he [federal] constitution
guarantees criminal defendants a meaningful opportunity to present a complete defense. (22) 
This right is abridged by evidence rules that infringe upon a weighty interest of the accused
and are arbitrary or disproportionate to the purposes they are designed to serve." (23) In
Holmes, the defendant sought to introduce proof that another man committed the crime. (24) 
The trial judge excluded the evidence under the Gregory rule governing the admissibility of
third-party guilt evidence. (25)  The purpose of the Gregory rule was "to focus the trial on the
central issues by excluding evidence that has only a very weak logical connection to the
central issues." (26)  The United States Supreme Court held that the rule was "arbitrary" because
it did not rationally serve the end that it was designed to further. (27)  The Court also provided
other examples of arbitrary rules that "excluded important defense evidence but that did not
serve any legitimate interests." (28) 
	In this case, Soffar challenges the exclusion of Reid's alleged out-of-court statements
to Cook.  Out-of-court statements are subject to four "dangers"--faulty perception, faulty
memory, miscommunication, and insincerity. (29)  Such statements generally do not have the
same safeguards that are present for in-court statements, such as "the oath, the witness'
awareness of the gravity of the proceedings, the jury's ability to observe the witness'
demeanor, and, most importantly, the right of the opponent to cross-examine." (30)  The hearsay
rule serves to minimize these dangers for out-of-court statements. 
	The exclusion of Reid's statements under the hearsay rule did not amount to
constitutional error.  In this case, as applied by the trial judge, the rule barring the admission
of hearsay was not arbitrary or disproportionate to its purpose, which is to prevent the
admission of statements that are regarded as inherently unreliable.  Cook's affidavit
documented a twenty-year-old admission allegedly made by Reid.  And when Soffar was
retried, Cook refused to talk to law-enforcement officials about Reid's alleged admission. 
Cook also refused to recount Reid's alleged admission in a court of law where the State,
through cross-examination, could challenge its reliability.  Therefore, the trial judge's ruling
did not deprive Soffar of a meaningful opportunity to present a complete defense.  Point of
error one (b) is therefore overruled.
	In points of error two (a) and (b), Soffar argues that the trial judge violated his
constitutional right to present a defense by refusing to grant immunity to Cook and failing
to compel Cook to testify.  As noted above, Cook stated that he would assert his Fifth
Amendment right against self-incrimination if asked to testify about the contents of his
affidavit.  When questioned by defense counsel, Cook testified in pertinent part:  
	Q.	And have you advised us that as a result of the conversation you
had with an attorney that you intend to assert your right against
self-incrimination regarding . . . the contents of your interview
with attorneys for Mr. Soffar?
 
	A.	Yes.  That's correct.
 
	Q.	And the . . . subject matter that you would be testifying to is the
statement that you gave to Mr. Schraub and Mr. Scott back in
2000?
 
	A.	Yes, 2000.
 
	Q.	And you believe on advice of counsel that you intend to assert
your Fifth Amendment Right as to the contents of that
conversation and the contents of the affidavit that you gave?

	A.	Yes.
 
	Q.	And you believe that any testimony might incriminate yourself
regarding possible acts that were committed back in 1982, '83?
 
	A.	Yes.
 
	Q.	If The Court [sic] gave you immunity to testify would you freely
testify?
 
	A.	Possibly.
 
	Q.	If The Court [sic] compelled you to testify would you testify?
 
	A.	No, I would not.
 
	Q.	If she ordered you to testify and gave you immunity?
 
	A.	I guess if I'm ordered to I guess I would have to.
 
	Q.	And if she gave you immunity to say that nothing you say can be
used against you in any prosecution of you would you testify?
 
	A.	Possibly.
 
	Q.	But based upon the advice of counsel you intend to assert your
Fifth Amendment privilege?
 
	A.	That's correct.
 
	Q.	And you refuse to testify about events that occurred in 1982 -- 
 
	A.	That's correct.

	After Cook testified, the judge recessed for lunch.  When the parties returned, the
prosecutor stated, outside the jury's presence, that Cook went straight out and talked to the
media during the break and that defense counsel directed the media to Cook's affidavit.  The
prosecutor complained that the defense was using a tactic to expose the jury and the public
to uncontroverted information that has not been cross-examined, and he asked that Cook be
brought back and instructed not to have any further conversations with the media.  Defense
counsel stated that "we have no intention of bringing him back unless The Court grants
immunity or orders him to appear."  The trial judge replied, "I'm not going to force the State
to grant immunity."
	The parties later discussed the issue of Cook's Fifth Amendment privilege.  Defense
counsel stated that Cook "ostensibly" had a Fifth Amendment privilege with regard to the
unprosecuted aggravated robbery in which Reid fired a gun at someone because "that's
attempted capital murder for which there is no statute of limitations."  Defense counsel
elaborated that Cook would not have a Fifth Amendment privilege if it was just a robbery
because the "statute of limitations for robbery is only 3 years where attempted capital murder
is unlimited."  The prosecutor said that the State was aware of the aggravated robberies and
that Cook had already pled to one or two of them.  Defense counsel responded: 
	If that's the case he has no Fifth Amendment privilege and The Court
[sic] can compel him to testify.  He does not have a valid assertion of
Fifth Amendment privilege and [if] the limitations has run on that crime
and he has no valid privilege then you can compel him to testify.  
 
	The prosecutor countered:
	Well, Your Honor, the lawyer for Mr. Cook has advised him that he is
subject to being prosecuted not for the aggravated robbery but
attempted capital murder, that being a robbery where a shooting
occurred.  No limitations to prevent us from doing that and that's
correct and based upon advice of counsel and not Mr. Schneider that
he's invoked Fifth Amendment privilege which he does have liabilities
in that situation but I think we're getting far afield.

	The parties revisited the issue after the State rested its case.  Defense counsel pointed
out that Cook had "already been incarcerated for robberies arising from his dealings with
Paul Reid."  Defense counsel further claimed that it was "a stretch" to say that Cook could
be prosecuted for attempted capital murder, pointing out that Cook's affidavit had "been on
file for over five years" and the State had yet to pursue prosecution on that charge.  Defense
counsel argued that Cook was not making a "good faith" assertion of his Fifth Amendment
privilege "given these circumstances" and that Soffar's "right to present [a] defense overrides
any of those concerns."  The trial judge responded, stating that she was "not going to force
[Cook] to testify."  
	Soffar argues that a trial judge must grant immunity without the prosecution's consent
if it is necessary to uphold a defendant's right to compulsory process and cites Norman v.
State. (31)   There, law-enforcement officials received a tip from an informant, Dewayne
Hamilton, that Norman would be selling heroin at a specified time and location. (32) Law-enforcement officials went to that location at the designated time, and Norman sold them
heroin. (33)  At her trial, Norman wanted to call Hamilton to testify in support of her "vicarious
entrapment" defense. (34)  Hamilton refused to testify, citing the Fifth Amendment. (35)  Inquiring
into Hamilton's assertion of the Fifth Amendment, outside the jury's presence, Norman's
attorney questioned Hamilton about his relationship with a law-enforcement officer and
another individual who had been involved in the drug transaction as well as the heroin
delivery. (36)  Hamilton asserted his Fifth Amendment privilege to all of the questions. (37)  The
trial judge did not inquire into the validity of Hamilton's assertion and refused to grant
Hamilton immunity from prosecution. (38)  We held that "given the facts of this case regarding
Hamilton's informer-agent status, it is axiomatic that [Norman] has a right to call him as a
defense witness and offer his testimony to the jury." (39)  As a result, we concluded that the trial
judge committed constitutional error when refusing Norman's immunity request. (40) 
	This case is distinguishable from Norman.   In Norman, immunity from prosecution
applied only to the facts and circumstances of the heroin offense, the offense for which
Hamilton acted as a state agent.  Here, immunity from prosecution would have been extended
to an attempted capital murder (and possibly a variety of other offenses), completely
unrelated to the bowling-alley murders, which Cook committed in the absence of any state-agency status.  Thus, we cannot say that our decision in Norman supports Soffar's claim.   
	Soffar cites Government of the Virgin Islands v. Smith, which recognizes a
constitutional right to immunity for a witness whose testimony would be exculpatory and
essential to the defense and the government has no strong interest in withholding immunity. (41) 
However, the Third Circuit Court of Appeals's ruling in Smith has been rejected by state and
federal courts. (42)  In Texas, a trial judge may grant immunity only with the consent of the
State. (43)
	Soffar primarily relies on Autry, which  states "that a constitutional right to immunized
testimony might exist to remedy prosecutorial abuse." (44)  Abuse may occur where the State
"has no legitimate purpose for refusing immunity and did so to deprive the defense of
essential exculpatory testimony." (45)  Even if we were to agree with Autry, we find no abuse
here.  In this case, there is no evidence in the record that would support such a showing. 
Soffar contends that the State had no legitimate purpose in refusing immunity because it had
known about the attempted capital murder offense since 1982 and never prosecuted Cook
during that time.  But, as Soffar notes, the State informed the trial judge that Cook could not
be granted immunity over its objection.  In making this assertion, the State notified the trial
judge of its interest of leaving a future prosecution of Cook within its discretion. Thus, the
State had a legitimate purpose in withholding immunity. Point of error two (a) is therefore
overruled.
	In point of error two (b), Soffar alleges that the trial judge violated his constitutional
right to present a defense by failing to compel Cook to testify because his invocation of the
right against self-incrimination was improper.  He complains that the trial judge failed to
inquire about and rule on the validity of Cook's invocation of his Fifth Amendment rights. 
	"An individual's constitutional privilege against self-incrimination overrides a
defendant's constitutional right to compulsory process of witnesses." (46) A trial judge "cannot
compel a witness to answer unless it is perfectly clear, from a careful consideration of all the
circumstances in the case, that the witness is mistaken in asserting the privilege, and that the
answer cannot possibly tend to incriminate the witness." (47) 
	The trial judge, after hearing Cook's testimony and the arguments from the defense
and the State, outside the jury's presence, ruled that she was not going to force Cook to
testify.  The prosecutor argued that Cook's attorney had advised him that he was subject to
prosecution for attempted capital murder and that there were no limitations to prevent the
State from doing that.  That the State had not yet pursued prosecution on that charge did not
mean that it could not or would not do so in the future.  The circumstances did not show "that
the answer cannot possibly tend to incriminate the witness." (48)  Point of error two (b) is
therefore overruled. 
	In point of error three, Soffar argues that the trial judge denied his constitutional right
to present a defense "by precluding evidence of Paul Reid's distinctive modus operandi in
his brutal Texas and Tennessee crimes, which marked him as the perpetrator of the
remarkably similar Fairlanes robbery-murders."    
	In his "Motion to Introduce Evidence Showing Paul Dennis Reid to be the Real
Perpetrator of the Bowling Alley Murders," Soffar stated his desire to introduce evidence of
three other crimes committed by Reid: (1) the Captain D's Robbery and Murders committed
on February 16, 1997, in Donelson, Tennessee; (2) the McDonald's Robbery and Murders
committed on March 23, 1997, in Hermitage, Tennessee; and, (3) the Baskin-Robbins
Robbery and Murders committed on April 23, 1997, in Clarksville, Tennessee.  He later filed
another "Motion to Introduce Evidence of the Crimes of Paul Dennis Reid to Establish the
Identity of the Real Perpetrator of the Fairlanes Crimes."  In the written motions and during
the pretrial hearings on these motions, defense counsel argued that the evidence was
admissible under Texas Rules of Evidence 404(b) and 403 and that the exclusion of this
evidence would deprive Soffar of his constitutional right to present a defense.  The trial judge
ultimately ruled that the extraneous offenses from Tennessee were inadmissible.
	An evidentiary ruling can "conceivably rise to a constitutional violation" if it is a
"clearly erroneous ruling which excludes admissible evidence and which effectively prevents
the defendant from presenting his defense." (49)
	Rule 404(b) provides, in pertinent part:
	Evidence of other crimes, wrongs, or acts is not admissible to prove the
character of a person in order to show action in conformity therewith. 
It may, however, be admissible for other purposes, such as proof of
motive, identity, or absence of mistake or accident . . . .  

	Soffar tried to prove the identity of the offender by offering evidence of Reid's modus
operandi in three other crimes.  Under the modus operandi rationale, "the pattern and
characteristics of the charged crime and the [extraneous offenses] are so distinctively similar
that they constitute a 'signature.'" (50)  "[T]he common characteristics may be proximity in time
and place, mode of commission of the crimes, the persons's dress, or any other elements
which mark both crimes as having been committed by the same person." (51)  But "if the
similarities are 'generic,' i.e., typical to this type of crime, they will not constitute a
'signature' crime." (52) 
	The characteristics of this offense and Reid's extraneous crimes are not so
distinctively similar so as to constitute a signature.  Reid's crimes in Tennessee are generic
in the sense that they are like numerous other offenses committed across this country each
year.  There is no distinct manner, means, or pattern involved in the commission of the
Tennessee offenses that constitute a distinct signature so as to permit the logical inference
that Reid was responsible for this offense.  This offense was committed in Texas in 1980;
Reid's other crimes were committed years later in Tennessee.  Here, the crime occurred at
night, and the victims were shot near the front doors of the bowling alley.  The Captain D's
offense occurred in the morning, and Reid shot the victims in the restaurant's walk-in
cooler. (53)  In the McDonald's offense, Reid ordered the victims into a storage area, where he
shot three of them and stabbed one of them. (54)  In the Baskin-Robbins offense Reid abducted
the victims and stabbed them to death at another location. (55)  Given these dissimilarities, the
trial judge did not abuse her discretion in excluding the evidence of Reid's other crimes.
Soffar has not shown that the trial judge made a clearly erroneous ruling that excluded
admissible evidence and that effectively prevented him from presenting his defense. (56)  Point
of error three is therefore overruled.
Exclusion of Media Evidence
	In point of error four, Soffar argues that the trial judge violated his constitutional right
to present a defense by excluding evidence showing that the Houston media broadcast details
of the crime.  He asserts that the excluded media evidence was essential to the defense theory
that his confession was unreliable.  He contends, "Without this evidence, the defense could
not point to the contents of the media reports as the source of the information in Soffar's
custodial statements."  According to Soffar, his statements do not contain any information
not reported through the media.  As a result, he could not point to the contents of the media
reports as the source of the information in his statements.  In that vein, Soffar points to the
following facts about that offense that were in the media: 
	(1) four people had been shot execution style;
	(2) one man survived;
	(3) one the victims was female, who was shot in the cheeck;
	(4)  money was taken from the cash register;
	(5) the shootings took place at the Fair Lanes Windfern;
	(6)  a .357 was used;
	(7)  reward money was available; 
	(8)  the bowling alley was burglarized the night before the offense;
	(9)  images of the exterior of the building, including the parking lot;
	(10) images of the interior of the building;
	(11) a close-up of Garner's wound; and
	(12) the four victims.
	Defense counsel initially offered "a newspaper story from the Houston Chronicle
dated July 14, 1980," and asked Detective Schultz to look at the article and state whether it
reported the location of the offense.  The prosecutor objected, arguing that the article was
inadmissible because it contained hearsay and irrelevant speculation.  The prosecutor
clarified, "We don't object to them asking was this reported in the paper or was it at the Fair
Lanes Bowling Alley or occurred this time."  Defense counsel stated that "[t]here was a great
deal of detail that was reported about this case" and that "it's not one article it's a
combination of several articles and several news reports."  The prosecutor said, "I will agree
to [a] Joint Exhibit to say certain things are in the public domain."  The trial judge refused
to admit "entire articles into evidence," given that "[t]here's too much irrelevant stuff in the
articles," but allowed the defense to "ask him if certain things were in the paper, the points." 
Defense counsel then questioned Schultz:
	Q.	So it's your testimony Mr. Schultz that where the bowling alley
was located was in fact reported in the news media?
 
	A.	Yes.
 
	Q.	Before August 5th 1980?
 
	A.	Yes.
 
	Q.	The time of night that the offense occurred was also reported in
the news media before August 5th 1980 wasn't it?
 
	A.	I don't know.  It possibly could have been but I don't recall.
 
	Q.	If it was reported in the news media before August 5th 1980 the
time of night that the offense occurred then that information
would be public domain, correct?
 
	A.	Yes.
 
	Q.	And so the fact that somebody knew the time of night that the
offense occurred that it had been in the news media doesn't
necessarily mean that they had been at the crime scene? 
Correct?
 
	A.	That's correct.
 
	Q.	Now, the news media also reported and showed on television the
bowling alley itself didn't it?
 
	A.	I don't recall.
 
	Q.	Well, if pictures of the bowling alley were displayed in the news
media showing a location of the front doors then this
information too would be in the public domain wouldn't it?
 
	A.	Yes.

	Defense counsel later informed the judge that he compiled "summary charts of all the
newspaper articles," but the State did "not want to stipulate to that information."  Thus,
defense counsel stated that he needed "to go back and revisit that with either Schultz or
[Detective] Williamson."  The prosecutor argued:
	It's our position Judge what was in the public domain isn't relevant to
this case unless it's tied to the Defendant.  If the Defense has some
information that the Defendant read a particular article or what
information the Defendant read that's one thing but our objection is to
the Defense being allowed to cross-examine each witness about what
may or may not have been in the public domain.  That doesn't have any
relevance to this case unless they can connect it to the Defendant . . .
You know what was in the public domain is not relevant.  What would
be relevant would be you know the Defendant was saying I read a
particular article or a witness saying the Defendant read a particular
article perhaps.

Defense counsel countered:
	And so it's relevant to show that the information contained in the
statements was in the public domain and that not simply the information
that he knew makes him the killer, that it was information that was
easily gleaned from the media, the name of the bowling alley, the
location of the bowling alley, the number of people that were shot,
things that were in the public domain, the location of the bowling alley.

The trial judge ruled:
	Well, I'm not admitting articles.  I don't know if I'm going to allow
cross-examination on it.  I guess I have to hear the question and hear
what the witness says about that he read the article and he knows about
what the article says and all that.  So ask your question and then make
an objection and I'll make a ruling.

	Defense counsel then questioned Detective Kenny Williamson on the subject. 
Williamson acknowledged that the media reported the location of the murders and the
number of people who were shot.  Defense counsel continued to ask Williamson specific
questions about what was reported by the media, and the prosecutor objected:
	Your Honor, I would object to this, to my knowledge line of [sic]
detailed questions about what was or was not in the media through this
officer.  It's hearsay to him and I don't know what relevance that is,
that it was in the media.

The trial judge sustained the objection.  Defense counsel then questioned Williamson:
	Q.	Mr. Williamson from July 14, 1980 to August 1st 1980 there
were a large number of reports in the media about this particular
shooting.
 
	A.	It was reported in the media.
 
	Q.	And there were a large number of reports in the media?
 
	A.	I can't say.  I don't know.
 
	Q.	And the reports had details in it, facts about the case?
 
		[PROSECUTOR]:  Your Honor, again that's going to be calling
for -- if he doesn't remember and also calls for hearsay.
 
		THE COURT:  Sustained.

	Defense counsel later tried to introduce media evidence by calling a "summary
witness to testify about the . . . details of the publicity that were reported on in the news from
July 14 through August 1st."  Defense counsel also wanted to introduce "summary charts"
of all media information, or at least introduce what was reported on "Channel 13 Eyewitness
News" and in the "Houston Post."  Defense counsel argued that the evidence was "relevant
. . . and probative under 403" and that exclusion of the evidence would violate his Sixth
Amendment right to present a defense.  The trial judge refused to admit the evidence.
	Assuming that the trial judge erred in refusing to admit Soffar's media evidence, we
conclude, beyond any reasonable doubt, that any constitutional error did not contribute to
Soffar's conviction. (57) 
	First, Soffar's defensive theory is not particularly compelling.  Soffar failed to present
any evidence showing that he had been exposed to all of the various media reports that he
submits in support of this trial theory.  Without establishing any affirmative link between his
statements about the offense and the various media reports that were issued about the
offense, Soffar's argument is weak.         
	Second, Soffar was not prevented from presenting general evidence in support of his
claim that his confession was unreliable because it could have been gleaned from media
reports about the offense.  Schultz and Williamson testified that the media reported on the
crime.  The evidence showed that when Schultz interrogated Soffar on August 5th, Soffar
mentioned that he had seen and heard about the crime, the reward, and the surviving victim
on the news.  Additionally, when Assistant District Attorney Terry Wilson interrogated
Soffar, Soffar told Wilson that he had watched television news coverage about the crime the
next night.  Soffar's sister also testified that Soffar generally read the newspaper and listened
to the news on television and the radio.  She also testified that Soffar had told her "[t]hat
there was a $10,000.00 reward" and "[t]hat the composite drawing looked like Latt and that
he wanted to turn him in."  And defense counsel highlighted this line of defense during
closing argument.  For example, defense counsel argued:
	But you know it's not just that clip you see there are 3 other times on August
5th 1980 that Max Soffar mentions seeing things on the news to Schultz or
Terry Wilson and what he tells Wilson is he seen [sic] the initial story on the
news that night, that he watched it on the news and Terry Wilson credits what
Max Soffar is saying because then he asks him later on do you think that Latt
saw his picture on TV, meaning has Latt seen the composite.
 
	All right.  So it's not like this information is going in one ear and coming out
the other.  They're crediting, they're hearing Max Soffar when he says I've
seen this on the news and he tells them again I seen that poor little kid in his
hospital bed.  Greg Garner was in the hospital under an assumed name at that
point with an armed guard . . . The only way he could have seen that poor little
kid in his hospital bed was on TV and it goes on because on August 6, 1980,
Max Soffar also tells Williamson that he knows about the crime through the
news 'cause again he tells him I've seen that kid on TV.  Now even Gil
Schultz had to admit if the information about the crime was in the media it was
in the public domain and if it's in the public domain that doesn't mean that if
you know it you committed the crime.  All it means is you describe [sic] to the
newspapers and you watch TV, Channel 13 eyewitness news.

Counsel also argued that Soffar "had to have learned about the bowling alley burglaries from
the news.  You want to know why because the police came in here and told you."
	Third, Soffar's August 7th confession to Detective Ladd includes two facts that were
not reported to the media--that the office door at the bowling alley was locked and that the
victims' wallets were taken during the offense.  Soffar stated that he tried to enter the office
of the bowling alley, but walked away because it was locked.  He later returned and tried to
force it open.  The media evidence in the record shows that three sources reported that the
office had not been entered.  But none of the reports indicated that the office had been
locked.  Jim Peters, who arrived at the bowling alley before the paramedics and police,
testified that the office door had been locked.  Additionally, Soffar told Detective Ladd that
Latt had kept the victims' wallets.  The evidence at trial showed that a police officer found
one of the victims' wallets in the parking lot, and a truck driver discovered two more the
following day beside the road.  The media reported only that one of the victims' wallets was
found in the parking lot of the bowling alley.  Thus, that the wallets were taken during the
offense was a piece of information that had not been reported by the media.  Soffar's
statement about the locked office door and the wallets strongly undermine his contention that
his knowledge about the offense derived solely from media reports.  This leads us to make
the following observation: Had Soffar's attorneys been permitted to present the media
evidence to the jury and compare the specific facts contained in Soffar's statements with
those reported by the media to show that Soffar's confession was unreliable, the State could
have easily rebutted this argument with Soffar's statement about the locked office door and
the victim's wallets.  These critical facts would likely have markedly weakened Soffar's
"unreliable confession" theory.
	Finally, we cannot overlook the effect of Soffar's admission to Bryant and Cass. 
Soffar initiated a conversation about the offense with Bryant, his drug supplier, and Cass,
Bryant's girlfriend, within weeks of the offense.  Soffar told them he committed the offense,
laughed about it, and told them that he was "too slick" to get caught.  Soffar makes no
argument in his brief that this particular admission was unreliable.    
	Based on the foregoing, we conclude that the exclusion of the media evidence, if
error, was harmless beyond a reasonable doubt.  We overrule Soffar's fourth point of error. 
Preclusion of Evidence that Undermined the Prosecution's Case 
and Impeached the Investigation

	In his eighth point of error, Soffar claims that the trial judge violated his constitutional
right to present a defense by repeatedly precluding evidence which undermined the
prosecution's case and impeached the police investigation.  He points out numerous instances
in which the judge sustained the State's objections to the testimony of several different
witnesses.  When the State objected in these particular instances, defense counsel made
various responsive arguments as to why the evidence should be admitted.  However, defense
counsel did not argue that the exclusion of the evidence would violate Soffar's constitutional
right to present a defense.  Consequently, this point of error is not preserved for our review (58)
and is therefore overruled.  
Motion to Quash the Indictment 
	In points of error five (a) and (b), Soffar alleges that the trial judge erroneously denied
his motion to quash the indictment because the grand-jury selection process violated his
rights to due process, equal protection, and a fair cross section.  The State argues that these
claims should be overruled under Texas Code of Criminal Procedure Article 19.27.  That
provision states:
		Before the grand jury has been impaneled, any person may
challenge the array of jurors or any person presented as a grand
juror.  In no other way shall objections to the qualifications and
legality of the grand jury be heard.  Any person confined in jail
in the county shall upon his request be brought into court to make
such challenge.	

We have interpreted this provision to mean that the array must be challenged at the first
opportunity, which ordinarily means when the grand jury is impaneled. (59) Soffar contends that
he could not challenge the array as required by Article 19.27 because he was arrested after the
grand jury was impaneled.  However, Soffar did not challenge the array until he filed his
motion to quash, which was twenty-five years after the jury was impaneled.  He failed to
challenge the array at the first opportunity; thus, his challenge to the legality of the grand jury
was untimely.  Points of error five (a) and (b) are therefore overruled.   
Failure to Preserve Exculpatory Evidence
	In points of error six (a) and (b), Soffar argues that the State's failure to preserve
exculpatory evidence violated his rights to due process and a fair trial under the United States
Constitution and his right to due course of law under the Texas Constitution.  Soffar
complains about the State's failure to preserve the following evidence: (1) Garner's four
audio-taped statements; (2) the water jug found on the control-booth counter at the crime
scene; (3) Sims's shirt; (4) bullets and bullet fragments; and (5) pieces of carpet and padding
taken from the crime scene.  For purposes of this appeal, we will assume that each of Soffar's
federal and state constitutional claims were properly preserved. (60) 
	We begin by examining Soffar's federal constitutional claim.  Toward that end, we turn
to Arizona v. Youngblood, the seminal United States Supreme Court access-to-evidence case
that Soffar relies on in support of his claim.  Under Youngblood, to establish a violation of the
Due Process Clause when the government fails to preserve potentially useful evidence, a
defendant must establish that officials acted in bad faith. (61)  Soffar implicitly acknowledges
that he cannot show that officials acted in bad faith.  And Soffar has not argued or proved that
the State acted in bad faith by failing to preserve the evidence at issue.  Finally to the extent
that Soffar's claim, as it pertains to the four recorded interviews of Garner's statements, may
be construed as falling under  California v. Trombetta, his contention is still without merit in
the absence of a showing of bad faith. (62)  Soffar's point of error six (a) is therefore overruled. 
	In arguing that he is entitled to relief under the Texas Constitution's due-course-of-law
provision, Soffar relies on the Waco Court of Appeals's opinion in Pena v. State. (63)  In that
case,  the Waco court held that "the State has a duty to preserve material evidence which has
apparent exculpatory value, encompassing both exculpatory evidence and evidence that is
potentially useful to the defense." (64)  The Waco court determined that, unlike the Due Process
Clause, the due-course-of-law provision does not contain a bad-faith requirement. (65)  The court
opted for a balancing test. (66)  In assessing whether the due-course-of-law provision has been
violated, according to the Waco court, appellate courts must weigh three factors:
	(1)	would the evidence have been subject to discovery or disclosure;
	(2)	if so, did the state have a duty to preserve the evidence; and
	(3)	if there was a duty to preserve, was that duty breached, and what
consequences should flow from the breach. (67)

In evaluating the third factor, a reviewing court must then

	draw a balance between the nature of the State's conduct and the degree of
prejudice to the accused.  The State must justify the conduct of the police or
prosecutor, and the defendant must show how his defense was impaired by loss
of the evidence.  In general terms, the court should consider: '(1) the degree of
negligence or bad faith involved, (2) the importance of the lost evidence, and
(3) the sufficiency of the other evidence adduced at the trial to sustain the
conviction.' (68)

	Because we conclude that Soffar has inadequately briefed this point of error, we need
not decide today whether the Pena court's understanding of the rights extended by Texas's
due-course-of-law provision is correct.  In his brief, Soffar relies heavily on Pena's rejection
of the bad-faith requirement; however, beyond that, Soffar has failed to marshal the facts of
his case under the balancing test adopted by the Pena court.  Soffar also fails to assert that the
constitutional harm standard is satisfied. (69)  Under these circumstances, we conclude that
Soffar has inadequately briefed his due-course-of-law claim according to the legal standard
that he advances.  We therefore overrule Soffar's point of error six (b) based on inadequate
briefing. (70) 
Confrontation Clause
	In his ninth point of error, Soffar asserts that the admission of Lawrence Bryant's prior
testimony violated his rights under the Sixth Amendment's Confrontation Clause.  Bryant,
who testified at Soffar's 1981 trial, was deceased at the time of Soffar's retrial, so the State
read his prior testimony into the record.  Soffar alleges that his confrontation rights were
violated because he was represented by constitutionally ineffective counsel who failed to
adequately cross-examine Bryant at the first trial.  He points to Soffar v. Dretke, in which the
Fifth Circuit Court of Appeals held that Soffar's trial counsel rendered ineffective assistance
by failing to interview and call Garner to testify or introduce his transcribed statements and
failing to consult a ballistics expert of their own to reconstruct the crime scenario for the jury
in accord with Garner's testimony or statements. (71)  He argues that his attorney at his first trial
should have questioned Bryant more thoroughly to reveal inconsistencies between Garner's
and Soffar's versions of events.  In support of his claim, Soffar relies on our opinion in
Russell v. State. (72)  In that case, we held that Russell's confrontation rights were violated by
the admission of an unavailable witness's prior testimony that had been given at Russell's
examining trial. (73)  We determined that Russell's counsel did not have the ability to adequately
cross-examine the witness at the examining trial because cross-examination had been
restricted. (74)  In reaching our determination, we said that whether the "requisite opportunity
existed" for cross-examination depends upon the "surrounding circumstances."  One factor
to be considered and "may appear from time to time to be significantly weighty" is the
"intimation of ineffective assistance of counsel." (75) 
	In Crawford v. Washington, the United States Supreme Court held that testimonial
hearsay may be admitted into evidence against a defendant only if the declarant is unavailable
and the defendant has had a prior opportunity to cross-examine the declarant. (76) 
	We hold that this case does not fall within the class of cases that we alluded to in
Russell.  First, we observe that the Fifth Circuit did not hold that Soffar's attorney was
ineffective for failing to adequately cross-examine Bryant at Soffar's first trial. (77)   In our view,
it would be improper to conclude that Soffar's first trial attorneys, found to have rendered
deficient performance at a particular point during that trial, were therefore deficient in all
other respects during that trial.    
	Notably, in Soffar's state application for a writ of habeas corpus challenging his first
capital-murder conviction and death sentence for this offense, Soffar challenged his trial
attorneys' performance with respect to Bryant's testimony.  He claimed that his attorneys
failed to investigate, develop, or present evidence that his statement to Bryant was unreliable. 
In denying Soffar's application on the findings of the trial court, we rejected this claim.  Thus,
with respect to counsels' treatment of Bryant at Soffar's first trial, we concluded that Soffar
failed to prove deficient performance and resulting prejudice.  The Fifth Circuit did not
disturb this holding, and we see no reason to reconsider our prior decision here. 
	However, even if we were to construe Soffar's prior habeas claim as not including the
particular underlying ineffective assistance claim at issue here, we would conclude that Soffar
has not shown that his attorney performed deficiently when questioning Bryant.  That Soffar's
appellate attorneys would have pursued a different line of questioning or conducted more
extensive questioning does not support a finding that Soffar's first trial attorneys were
deficient. (78)  Thus, the Confrontation Clause is not violated "simply because the defendant did
not conduct a particular form of cross-examination that in hindsight might have been more
effective." (79)
	Here, as required by the Confrontation Clause, Soffar had a prior opportunity to cross-examine Bryant at his first trial.  Point of error nine is overruled.
Admissibility of Soffar's Statements
	In point of error ten, Soffar makes various challenges to the admissibility of the
statements that he gave to police on August 5, 1980.  In point of error ten (a), he asserts that
the police violated his Fifth Amendment rights by continuing their custodial interrogation
after he invoked his right to remain silent.  In point of error ten (b), he asserts that Sergeant
Clawson's misleading answers to Soffar's questions rendered invalid any purported waiver
of his right to counsel.  In point of error ten (c), he complains that the police obtained his
statements by failing to honor his invocation of the right to counsel under the Fifth
Amendment.  In point of error ten (d), he asserts, "Under Texas law, the police were required
to clarify whether Soffar wanted counsel, if his invocation was ambiguous."  Finally, in point
of error ten (e), he claims that his statements were involuntary. 
	Soffar was arrested by League City Police Officer Raymond Willoughby on August
5, 1980, for theft of a motorcycle.  Willoughby noticed that Soffar's eyes were bloodshot, his
speech was slurred, and that he smelled of alcohol.  Willoughby read Soffar his Miranda
rights, and Soffar told Willoughby that he understood his rights. Willoughby believed that
Soffar understood his rights and that his judgment was not impaired, even though he thought
that Soffar was intoxicated.  Detective Palmire from the Friendswood City Police Department
came to the scene and spoke to Soffar after warning him.  Soffar told Palmire, "I'm not going
to the penitentiary for any dam [sic] bike.  You'd better check Houston for bigger things." 
When Palmire inquired further, Soffar wouldn't say anything else.  Palmire did not believe
that Soffar was under the influence of drugs or alcohol. 
	While Willoughby was transporting Soffar to the police department, Soffar told
Willoughby that he would not be going to prison for theft of a motorcycle but would be going
for "something bigger."  Soffar then told Willoughby that he had information about the
bowling-alley murders in Houston and asked Willoughby to contact Sergeant Clawson, who
was a member of the Galveston County Sheriff's Office.  Beginning in 1979, Soffar acted as
a paid drug informant for Clawson.  Clawson usually saw Soffar on a weekly basis, and he
believed that Soffar trusted him and, perhaps, regarded him as a friend.  Clawson formed the
impression that Soffar had a poor sense of reality and was impulsive, child-like, and eager to
please law enforcement.  
	After Willoughby and Soffar arrived at the League City Police Department,
Willoughby told Lieutent Steve Johnson about Soffar's request to talk to Clawson.  Johnson
called Clawson, and Clawson came to the League City Police Department.   Clawson gave
Soffar his Miranda warnings.  Shortly thereafter, Willoughby, Johnson, and Clawson escorted
Soffar to the municipal court so that Soffar could receive warnings from a magistrate. Soffar
did not have any questions about the magistrate's warnings and indicated that he understood
them.  When they returned to the police department, Clawson talked to Soffar a little about
the murders.  Clawson believed that he was brought in to provide Soffar with a friendly face
and to "hold [his] hand during the course of the interrogation."  
	While Clawson spoke to Soffar, Detective Gil Schultz from the Houston Police
Department arrived at the station.  After reading Soffar his Miranda rights, Schultz
interviewed Soffar about the bowling alley murders, and after learning some basic information
about the offense, Schultz called Terry Wilson, an assistant district attorney with the Harris
County District Attorney's Office, and requested his assistance.  When Wilson arrived, with
Schultz present, Wilson warned Soffar per Miranda and questioned him about the murders. 
According to Wilson, the interview was brief; Schultz told him that Soffar did not want to talk
to him anymore because Soffar did not like Wilson. Wilson did not construe Soffar's refusal
to talk to him as an invocation of his right to remain silent; it was because Soffar personally
disliked him.  Wilson was told that Soffar said, "Keep that four-eyed MF away from me." 
Soffar also informed Clawson that he did not want to talk to Wilson, and Clawson believed
that it was because Soffar "did not like" Wilson.  And sometime earlier, Soffar had told
Clawson that he did not want to talk to Palmire.  Clawson believed that Soffar had a "personal
problem" with Palmire, which Soffar had conveyed in a "graphic manner." 
	Schultz and Clawson then spoke to Soffar, though Clawson left the room at some
point.  Schultz later came out and found Clawson and told him that Soffar wanted to talk to
him again.  Clawson believed that Schultz sought his assistance because Schultz had "hit a
"brick wall" with Soffar.  When Clawson spoke to Soffar, he noticed that he was nervous.
Soffar asked Clawson how long it would take to get an appointed attorney in Harris County. 
Responding, Clawson said: "a day, a week, a month."  He did not know how the system
worked in Harris County.  Soffar also asked Clawson if he should get a lawyer.  Clawson told
Soffar, "Well, if you're guilty you should talk to police and if you're not guilty you should get
an attorney."  Clawson also told Soffar that this was "serious."  Soffar asked Clawson if he
was on his own, and Clawson told him that he was.  Clawson viewed the exchange as 
Soffar's acknowledgment that Clawson could not help him this time, even though Clawson
had helped him with previous charges.  Clawson did not interpret Soffar's question about a
lawyer as a request for counsel.  Clawson then asked Soffar if he wanted to talk to Schultz
again, and Soffar said that he did.  
	Soffar later gave a signed written statement to Schultz.  Schultz stated that Soffar had
told him that he had used drugs earlier that day, but Shultz observed that Soffar did not appear
to be under the influence of drugs or alcohol.  	
	In point of error ten (a), Soffar contends that Clawson continued to interrogate him
after he invoked his Fifth Amendment right to remain silent.  He claims that the trial judge
should have suppressed his written statement.  We disagree.  Soffar's refusal to speak to
Wilson and Palmire did not amount to an unambiguous assertion of his right to remain silent. (80) 
It would have been appropriate for the trial judge to find that Soffar merely asserted his
preference to avoid speaking to two law-enforcement officials whom he personally disliked. 
Point of error ten (a) is overruled.
	In point of error ten (b), Soffar claims that, because of Clawson's misleading responses
to his inquiry about hiring an attorney, his waiver of his Fifth Amendment right to counsel
was invalid.  The United States Court of Appeals for the Fifth Circuit addressed the merits of
this claim when Soffar sought federal habeas relief following his first conviction and sentence
of death for this offense.  The material portions of the evidence pertaining to Soffar's current
allegation are the same as they were when the Fifth Circuit rejected this claim, and we agree
with the Fifth Circuit's resolution of that claim. (81)  Therefore, we overrule point of error ten
(b).
	In point of error ten (c), Soffar alleges that his Fifth Amendment right to counsel was
violated because, when talking to Clawson, he invoked his right to counsel.  We disagree. 
Based on the facts before us, we conclude that Soffar's questions to Clawson about hiring an
attorney did not amount to an unambiguous or unequivocal request for counsel. (82) As noted by
the Fifth Circuit Court of Appeals, the substance of each specific inquiry made by Soffar has
been rejected as a clear invocation of the right to counsel, (83) and we agree with this
determination. (84)  We therefore overrule point of error ten (c).
	In point of error ten (d), Soffar urges us to hold that, under Texas law, the police were
required to clarify whether Soffar wanted counsel if his invocation was ambiguous.  Soffar
fails to demonstrate that his Texas-law claim was properly preserved at trial. (85)  We cannot
find, and Soffar fails to point us to, anything in the record indicating that he argued that Texas
law provides greater protection than the Fifth Amendment. (86)  Point of error ten (d) is therefore
overruled.
	In point of error ten (e), Soffar claims that his statements were involuntary for various
reasons.  For instance, Soffar claims that he had a "child-like" mentality, that he was misled
about his right to counsel by Clawson, and that he was intoxicated when he was arrested.  The
determination as to whether a confession was given voluntarily must be analyzed by
examining the "totality of the circumstances." (87)
	The evidence at the suppression hearing did not establish that Soffar's statements were
involuntary because of intoxication.  Although  Willoughby testified that Soffar seemed to be
"somewhat intoxicated,"  he did not believe that Soffar was intoxicated "to the point that he
would not have understood his rights or the circumstances that he was in at the moment." 
Palmire, Clawson, and Schultz testified that Soffar did not appear to be under the influence
of alcohol or drugs.  And all of these witnesses testified that Soffar appeared to understand
the warnings, which were repeated numerous times, and that he was not subjected to any
threats or promises when interrogated.  Under the totality of the circumstances, the trial judge
did not abuse her discretion in finding that Soffar's statements were voluntary.  Point of error
ten (e) is therefore overruled.
Admission of Oral Statements
	In point of error eleven, Soffar claims that the trial judge erroneously admitted his oral
statements in violation of Article 38.22, Texas Code of Criminal Procedure, because they
were not recorded.  He specifically refers to statements that he made while riding around to
various locations in Houston with Detectives Ladd and Williamson on the afternoon of
August 6th.  Ladd testified about the these statements on direct examination at the suppression
hearing:
	Q.	All right.  And where - - what was the purpose of leaving the
homicide office?
 
	A.	For Max to point out some of the locations that he had been
talking about to go to the bowling alleys and look at them and to
try to find Pops there who they brought [sic] dope from.
 
	Q.	Okay.  And so after you left the homicide office were you in one
of the unmarked police cars?
 
	A.	We were.
 
	Q.	And do you remember who was driving and who was the
passenger?
 
	A.	I don't recall if I drove or Detective Williamson drove[,]
whichever wasn't driving was in the back seat with Max.
 
	Q.	Okay.  And where did you first go then after leaving the
homicide office?
 
	A.	First went to Fair Lanes Bowling Alley on Bunker Hill just
south of I-10.  There was another Fair Lanes there that had a
robbery.
 
	Q.	When you went to the Fair Lanes Bowling Alley on I-10 what
did you -- when you arrived at the location what did you do?

	A.	We just let [Soffar] -- where we were at and let him comment on
the location that we were at since we were not at the location
where the murders had happened but a different bowling alley
all together [sic] so we just wanted to see what his reaction
would be to where we were at.
 
	Q.	Okay.  Now had you discussed with [Soffar] where you were
going?
 
	A.	No.
 
	Q.	Prior to your arriving at the bowling alley off of I-10?
 
	A.	No.
 
	Q.	When you arrived at the bowling alley on I-10 did you ask him
any questions?
 
	A.	No.
 
	Q.	When you pulled into the parking lot what, if anything, did the
Defendant say?
 
	A.	He looked around.
 
		[DEFENSE COUNSEL]:  Your Honor, we would object to any
oral statements that have not been reduced to writing.  38.22 Code of
Criminal Procedure.
 
		THE COURT:  Overruled.
 
	A.	Looked around at this location and just remarked to us that this
did not look like the right place.     
 
. . . 
 
	Q.	After the Defendant had made the statement that this didn't look
right where did you go then?

	A.	We then proceeded to the Fair Lanes Bowling Alley on
Northwest Freeway.
 
	Q.	Okay.  And did you tell the Defendant where you were going at
that time?
 
	A.	No.
 
	Q.	And when he arrived at the Fair Lanes Bowling Alley off 290
what did you do?
 
	A.	Same thing as previous just pulled into the parking lot let
[Soffar] look at the surroundings and the front of this bowling
alley and just to see what his reaction would be.
 
	Q.	And what was his reaction?
 
	A.	He said this looked right.
 
		[DEFENSE COUNSEL]:  Your Honor, again I would object to
any statement not reduced to writing in accordance with Article 38.22.
 
		THE COURT:  Overruled.
 
		THE WITNESS:  This looked like the correct location.

	  Article 38.22, Section 3(a)(1) provides that "[n]o oral . . . statement of an accused
made as a result of custodial interrogation shall be admissible against the accused in a
criminal proceeding" unless, among other things, an electronic recording of the statement is
made. (88)  A defendant is "in custody" if, under the circumstances, a reasonable person would
believe that his freedom of movement was restrained to the degree associated with a formal
arrest. (89) This is the situation here.  Thus, we hold that Soffar was in custody for purposes of
Article 38.22 when he made the statements.
	"Interrogation" is defined as any words or actions by the police that they should have
known are reasonably likely to elicit an incriminating response. (90)  Ladd testified that they left
the homicide office with Soffar so that he could "point out some of the locations that he had
been talking about to go to the bowling alleys and look at them and to try to find Pops," and
that they drove Soffar to a different bowling alley "to see what his reaction would be."   We
conclude that these actions were designed to elicit an incriminating response from Soffar, and
the trial judge should have ruled that evidence was inadmissible.  However, the error was
harmless because the admission of Soffar's incriminating oral statements, in light of Soffar's
other confessions, including those to Bryant and Cass, did not affect Soffar's substantial
rights. (91)  Accordingly, point of error eleven is overruled.
Guilt-Phase Jury Argument
	Soffar claims that some of the prosecutor's closing arguments violated his
constitutional right to due process of law and to a fair trial.  First, he asserts that the
prosecutor improperly argued that Soffar's confession was credible because he  knew details
known only to the perpetrator.  Second, he claims that the prosecutor improperly argued that
the defense failed to produce any evidence that someone other than Soffar committed the
crime.  Third, he contends that the prosecutor improperly argued that the defense failed to
produce any evidence that Soffar's confession was false.  He claims that, in making these
arguments, the prosecutor impermissibly shifted the burden of proof and improperly
commented on his failure to testify.  Soffar failed to object in any of these instances; thus, he
failed to preserve these particular arguments for review. (92) 
	Soffar also contends that the prosecutor misled the jury by arguing that his commitment
to the Austin State Mental Hospital was a criminal commitment instead of a civil
commitment.  However, when defense counsel objected to this argument at trial, she simply
stated, "Objection Your Honor.  Burden shifting."  Soffar's "burden shifting" trial objection
does not comport with his argument on appeal; therefore, he has failed to preserve his
complaint for our review, (93) and we overrule his twelfth point of error. 
Charge on Guilt
	In point of error thirteen, Soffar challenges the trial judge's failure to properly instruct
the jury about the statements he made to police.  In point of error thirteen (a), Soffar contends
that the trial judge erroneously refused to instruct the jury under Section 7, Article 38.22,
Texas Code of Criminal Procedure, to disregard his confession "if the State failed to prove
he waived his right to remain silent and to counsel during custodial interrogation." (94)   Soffar
maintains that Sergeant Clawson's testimony raised the issue as to the validity of these two
waivers.  At trial, Soffar requested that the following instruction be included in the charge:
	If you are not convinced beyond a reasonable doubt that prior to and during the
making of any statement, . . . Soffar knowingly, voluntarily and intelligently
waived his right to remain silent and not to make any statements at all, and the
right to have a lawyer present to advise him prior to or during any questioning,
then you shall disregard the statements and you shall not consider any evidence
obtained as a result of the statement.   

The trial judge denied Soffar's request.  
	We conclude that the trial judge did not abuse her discretion because the issue was not
raised by the evidence. (95)  There was no factual dispute over the relevant portions of Clawson's
testimony for the jury to resolve.  The relevant portions of Clawson's testimony were not
affirmatively contested. (96)  Therefore, the specific voluntariness issue raised only a question
of law--something within the exclusive purview of the trial judge that was addressed and
ruled on outside the jury's presence.   The trial judge did not abuse her discretion in denying
Soffar's requested instruction; therefore, point of error thirteen (a) is overruled. 
	In point of error thirteen (b), Soffar contends that the trial judge erroneously refused
to instruct the jury to disregard his confession "if it found the confession untruthful."  He
argues that this instruction was warranted due to evidence of Soffar's overall lack of
credibility, his false confessions to burglarizing the bowling alley the night before the robbery
murders and to committing other robberies with Bloomfield, and the dramatic inconsistencies
between his putative confession and the other evidence.  None of the cases cited by Soffar
hold that such an instruction is required. (97)  The issue of Soffar's credibility was encompassed
in the charge on guilt; had the jury found his confession untruthful, it would have disregarded
it.  Point of error thirteen (b) is therefore overruled.
	In points of error thirteen (c), Soffar contends that trial judge erred by denying his
request to instruct jurors that they should disregard Soffar's confession if they found that it
was involuntary due to intoxication.  Soffar contends that the testimony of Officer Willoughby
and Detective Schultz raised the issue.  We conclude that there was no error.  In this case, the
general voluntariness instruction that Soffar received under Article 38.22, Section 6
adequately addressed the issue of involuntariness due to intoxication. (98)  The issue of Soffar's
intoxication was litigated before the jury, and the general voluntariness instruction informed
the jurors not to consider Soffar's statements as evidence against him if they had a reasonable
doubt as to whether it was made freely and voluntarily.  Point of error thirteen (c) is therefore
overruled. 
	In point of error thirteen (d), Soffar claims that the trial judge erroneously refused to
instruct the jury, under Article 38.23, Texas Code of Criminal Procedure, to disregard his
confession if it found that he was subjected to a verbal threat from a police officer.  During
Soffar's taped confession with Schultz, Soffar told Schultz that he received "a little verbal
threat" from one of the officers at the Friendswood Police Department.  Soffar also told
Schultz that no one had physically beaten him.
	Soffar failed to identify the particular officer who made the "little verbal threat" and
the law-enforcement officials who testified at Soffar's trial denied making any threat toward
Soffar before he gave his statement to Schultz.  Had Soffar identified the officer and that
officer then testified that he did not verbally threaten Soffar, there would have been a factual
dispute for the jury to resolve.  That some unidentified officer verbally threatened Soffar was
not affirmatively contested at trial.   The exclusionary issue remained within the sole purview
of the trial judge--a matter that was addressed during a suppression hearing outside the jury's
presence.  Thus, the trial judge did not abuse her discretion in denying Soffar's request for an
Article 38.23 instruction, and we overrule point of error thirteen (d).     
	In point of error thirteen (e), Soffar alleges that the trial court judge refused to instruct
the jury not to hold against Soffar any delay in prosecuting this case.  In point of error thirteen
(f), Soffar contends that the trial judge erroneously refused to instruct the jury that it could
draw an adverse inference against the State if its explanation for losing important evidence
was inadequate.  Again, Soffar fails to cite any authority establishing that these instructions
were required.  Points of error thirteen (e) and (f) are overruled.
	In point of error thirteen (g), Soffar complains about the trial judge's refusal to instruct
the jury on the law of circumstantial evidence.  He states that the jury was given a
circumstantial-evidence charge at his 1981 trial.   At trial in 2006, the judge denied Soffar's
request for a circumstantial-evidence instruction.  After Soffar's first trial, we abolished the
requirement of a circumstantial-evidence instruction. (99)  Soffar claims that, due to ex post facto
considerations, he is entitled to an instruction under the rule as it was in 1980, when the
offense occurred.  We see no ex post facto violation because the instruction given "did not
subject [Soffar] to retroactive criminal prosecution" and "did not create a potentially more
onerous punishment." (100)  Point of error thirteen (g) is overruled.
Exclusion of Mitigating Evidence
	In points of error fourteen (a) and (b), Soffar alleges that the trial judge violated his
right to present mitigating evidence under a residual doubt theory by precluding evidence that
Paul Reid was responsible for the Fairlanes robbery murders.  Citing Oregon v. Guzek, he
argues that Eighth and Fourteenth Amendments grant him the right to introduce residual doubt
evidence at punishment. (101)  Alternatively, he alleges that we should hold, under Texas
statutory and constitutional law, that residual-doubt evidence is admissible at the sentencing
phase of a capital trial.
	Soffar filed a "Motion to Submit Evidence and Argue Residual Doubt at the Penalty
Phase," generally requesting that the trial judge allow him to re-submit, or offer new, evidence
at the penalty phase casting doubt on his guilt and conviction and to instruct the jury to
consider evidence introduced at the guilt and penalty phases as well as any residual doubts as
factors mitigating against the imposition of the death penalty.  Soffar does not refer to this
motion on appeal.  Instead, he complains about only the trial judge's ruling when defense
counsel attempted to call Jonathan Scott to testify at punishment about Paul Reid's alleged
admissions to Stewart Cook.  Soffar specifically complains about the trial judge's ruling:
		[DEFENSE COUNSEL]: And now the second issue that I wish
to raise before the Court is that the statutory language regarding what
the jury may consider at punishment says that they may consider
circumstances of the offense and in this case there's been a real issue
about first of all Paul Reid and his admission against penal interest to
Stewart Cook and given Green versus Georgia's lowered standard of
admissibility for mitigating evidence that can be placed before the jury
I seek to put before the jury Jonathan Scott regarding the admission
against penal interest so that the jury is aware of those issues as
mitigating factors.
 
		THE COURT: My ruling will be the same at this phase of the
trial with respect to the admissibility of Mr. Scott's testimony about
what Mr. Cook said that Paul Reid said.  I still am not going to admit
that in the punishment phase of the trial.

	Citing Green v. Georgia, defense counsel then continued to argue that "the State's
hearsay rules should not be used to preclude any evidence that the Defendant wants to put
on." (102)  And citing Wiggins v. Smith, defense counsel also argued that "there is a lower
standard of admissibility when evidence is proffered as mitigating evidence to the jury
because anything can be mitigating." (103)  Finally, relying on Tennard v. Dretke, defense
counsel argued that "anything to justify [a] sentence of life is admissible." (104)  The trial court
judge stated that she would read the cases and added:
		THE COURT: And I'll be happy to consider what they say but
when you tell me that there's no hearsay objection at the punishment
phase of the trial as evidence offered by the Defense I'm telling you I
don't think that's what those cases say all right.  Now if you're asking
me to extrapolate and say well, you what they say X Y and Z and they
also say A B and C.  You know by now that I'm not going to do that[,]
I'm not going to extrapolate and change and expand what the law is.
 
		[DEFENSE COUNSEL]: I understand that Judge but the cite of
- - we've cited these cases in good faith.
 
		THE COURT: And that's fine.
 
. . . 
 
		THE COURT: But if they don't say what you just said that they
say you can count on me making the same ruling in this phase of the
trial as the first.  Okay.

	Soffar's trial arguments, which were ruled on by the trial judge, do not comport with
Soffar's residual-doubt arguments on appeal.  Thus, he has failed to preserve these complaints
for our review. (105)  And even if error were preserved, we conclude, as we did with respect to
points of error one (a) and (b), that the trial judge did not abuse her discretion.  Points of error
fourteen (a) and fourteen (b) are overruled.
	In point of error fourteen (c), Soffar alleges that the trial judge deprived him of his
constitutional rights to present powerful mitigating evidence when it precluded the
introduction of sworn affidavits from his mother, Zelda Soffar, and his maternal uncle, Carl
Amdur, two witnesses who had died since the first trial.  Soffar claims that Zelda's affidavit
establishes that, had Zelda been alive for her son's retrial in 2006, she would have testified
at the sentencing phase about Soffar's psychological, toxin-sniffing, and academic problems,
important information that ineffective counsel did not elicit in the first trial.  He contends that
Amdur's affidavit establishes that he would have testified about Soffar's difficult upbringing,
psychological problems, and toxin sniffing as a child.  Soffar complains that the trial judge's
rigid application of the hearsay rule improperly prevented him from presenting this mitigating
evidence.
	The record shows that the mitigating evidence contained in the affidavits was presented
from other sources at punishment.  
	Psychiatrist Susan Stone testified for the defense at length regarding Soffar's
psychological, drug, academic, and family problems.  Stone opined that Soffar suffered from
organic brain syndrome and attention-deficit hyperactivity disorder.  Stone testified that Soffar
began ingesting pills and sniffing leaded gasoline at age four, that he began seeing a
psychiatrist at age six, that he did not succeed socially or academically, that he was held back
in the first and third grade, that he was committed to the Austin State Hospital after having
a psychotic break at age twelve, that he was treated with psychotropic medication and shock
therapy, and that he continued to receive psychiatric help after leaving the state hospital.  She
further testified that Soffar's mother put barbiturates in his baby bottle to calm him as an
infant and that his parents were unable to properly care for him and to meet his needs.  
	Thomas Busby, who worked at the Gulf Coast Trade School when Soffar lived there,
testified that Soffar was academically behind and that he sniffed paint or paint thinner to get
high.  
	Jackie Butler, Soffar's sister, testified that their parents did not provide much guidance
or discipline and that Soffar had a hard time learning.  He began seeing a psychiatrist and
taking medication when he was about six years old, sniffed glue and gasoline, and took their
parents' pills to get attention.  
	The State also read a portion of Zelda's prior testimony into the record.  In it, she 
stated that Soffar had mental problems starting at age six, that he had troubles in school, that
he received psychiatric treatment for a period of about twelve years, that he sniffed glue and
gasoline, and that he was committed to the state hospital after "[h]e had taken medication that
set him off."  
	Based on the foregoing, even if we were to assume that the trial judge erred in
excluding the affidavits, any error was harmless in light of the other evidence that was
admitted. (106)  Point of error fourteen (c) is overruled.
	In point of error fourteen (d), Soffar complains that the trial judge repeatedly made
evidentiary rulings that blocked his attempts to present mitigating evidence.  In his brief, he
lists twenty instances in which the trial judge sustained the State's objections or declined to
admit defense evidence.  However, in his brief, he fails to explain the specific objections that
were made or the reasons that the trial judge's rulings were erroneous.   Without more, these
claims are inadequately briefed. (107)  Point of error fourteen (d) is overruled.  
Victim-Impact Testimony 
	In point of error fifteen, Soffar argues that the trial judge improperly allowed victim-impact testimony about a person not named in the indictment.  He specifically complains
about the testimony of Sims's widow, Brenda Sims Moebius.  Before Moebius took the stand,
the following exchange occurred during a bench conference:
	[DEFENSE COUNSEL]:  Judge, we would move in limine to prevent
an improper victim impact testimony from any of the - - I assume it's
victim impact witnesses coming.  We want to make sure that there is no
victim worth testimony comparison to [the] life of one person over
another or asking for a particular sentence from any of these.
 
	THE COURT:  Okay.

Moebius then testified about her life with Sims and their son before Sims was murdered,
about how his death affected them, about being in shock when she was making Sims's funeral
arrangements, and about being unable to face the first Christmas after Sims's death.  When
the prosecutor offered family photographs into evidence, defense counsel asked to approach
the bench and the following exchange occurred:
	[DEFENSE COUNSEL]:  Your Honor, Mr. Soffar is charged in the
indictment with the death of Alane Felsher not charged with the murder
of Steven Alan Sims so I think this line of testimony is improper and
we would object to the introduction of these photographs and any
additional testimony from this particular witness.
 
	THE COURT:  Overruled.
 
	[DEFENSE COUNSEL]:  No objection Your Honor.
 
	THE COURT:  They're admitted.

Moebius then testified that Sims was a kind, fun-loving person, that he played sports in high
school, that he was "not only [her] husband but [her] best friend," and that he was a very
active and involved parent to his son.  
	A motion in limine is a preliminary matter and normally preserves nothing for appellate
review. (108)  For error to be preserved with regard to the subject of a motion in limine, an
objection must be made at the time the subject is raised during trial. (109)  Here, Soffar failed to
make a timely objection as required by Rule 33.1 of the Texas Rules of Appellate Procedure. 
Defense counsel did not ask to approach the bench until Moebius had already testified at
length regarding the impact of Sims's death on her and their son.  And even if we determined
that Soffar lodged a timely objection, we would still conclude that error is not preserved
because Soffar never obtained a ruling from the trial judge about the victim-impact testimony.
The trial judge only ruled on Soffar's objection to the admission of Sims's family photos. 
Soffar has failed to preserve this argument for appellate review, and we therefore overrule his
fifteenth point of error.Punishment Charge
	In point of error sixteen (a), Soffar complains that the trial judge erred by refusing to
instruct the jury that it must give weight to the mitigating circumstances they found.  He
further complains that the trial judge erroneously instructed the jury,  "If you find that there
are any mitigating circumstances in this case, you must decide how much weight they deserve,
if any . . . ."  And in point of error sixteen (b), Soffar asserts that the trial judge erroneously
instructed jurors that they had discretion to decide whether a circumstance was mitigating.  
	The law does not require a juror to consider any particular piece of evidence as
mitigating. (110)  The law requires only that a defendant 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. (111)  Points of error sixteen (a) and (b) are
overruled.
	In point of error sixteen (c), Soffar argues that the trial judge erroneously instructed
the jury that at least ten votes were required for the jury to return an affirmative answer on the
mitigation issue.  We have previously rejected this claim. (112)  Point of error sixteen (c) is
overruled.
	In point of error sixteen (d), Soffar contends that the trial judge improperly  instructed
the jury that its answers to the special issues hould reflect an individualized determination by
each juror of the personal culpability of the defendant.  He argues that this instruction
lessened the State's burden to prove the deliberateness, anti-parties, and future dangerousness
special issues beyond a reasonable doubt.  He further contends that the instruction infected
the jury's deliberative process with an issue extraneous to the statute and allowed
consideration of irrelevant evidence.  
	Soffar has not shown that his constitutional rights were violated.  The United States
Supreme Court has held that a state capital-sentencing system must "permit a jury to render
a reasoned, individualized sentencing determination based on a death-eligible defendant's
record, personal characteristics, and the circumstances of his crime." (113) And we have read our
statute as incorporating this requirement. (114)  Point of error sixteen (d) is overruled.
	In point of error sixteen (e), Soffar alleges that the trial judge erred by denying his
written and oral objections to the court's charge and verdict form on the ground that the
indictment did not allege special issues one, two, and three.  We have repeatedly held that the
State is not required to allege the special issues in the indictment. (115)  Point of error sixteen (e)
is overruled.
	In point of error sixteen (f), Soffar alleges that the trial judge improperly instructed the
jury that it had to find beyond a reasonable doubt a reasonable probability that the defendant
would commit criminal acts of violence that would constitute a threat to society.  Soffar
contends that use of the term "probability" was improper because it substantially diluted the
State's burden of proving this issue beyond a reasonable doubt.  We have previously rejected
this claim, (116) and Soffar offers no reason for us to reconsider it here.  Point of error sixteen
(f) is overruled.
	In point of error sixteen (g), Soffar complains that the trial judge erred by failing to
instruct the jury to disregard victim impact evidence not shown to be within the knowledge
or reasonable expectation of the defendant.  Again, we have previously rejected this
argument. (117)  Point of error sixteen (g) is overruled.
	In point of error sixteen (h), Soffar alleges that the trial judge erred by refusing to
charge on residual doubt as mitigating evidence.  We have previously held that there is no
constitutional right to a jury instruction regarding residual doubt, (118) and this determination is
not inconsistent with the United States Supreme Court's decision in Oregon v. Guzek. (119)  Point
of error sixteen (h) is overruled. 
Punishment Verdict
	In point of error seventeen, Soffar complains that the trial judge improperly
reassembled the jury to render a verdict after dismissal.  In point of error seventeen (a), he
complains that this was reversible error under common law and case law.  In point of error
seventeen (b), he contends that the trial judge violated his federal and state constitutional
rights to due process of law, to be free of cruel and unusual punishment and against double
jeopardy.  In point of error seventeen (c), he alternatively alleges that this Court should order
an evidentiary hearing on any facts it deems in dispute and dispositive of the issue.
	After the jury deliberated on punishment and returned to the courtroom, the foreperson
handed the verdict to the bailiff and the trial judge read the verdict, stating in pertinent part
as follows:
	Special Issue No. 1.  We, the jury, unanimously find and determine beyond a
reasonable doubt that the answer to this Special Issue is yes.

	Signed by the presiding juror.

	Special Issue No. 2.  We, the jury, unanimously find and determine beyond a
reasonable doubt that the answer to this Special Issue is yes.

	Signed by the presiding juror.

	Special Issue No. 3.  We, the jury, unanimously find and determine beyond a
reasonable doubt that the answer to this Special Issue is yes.

	Signed by the presiding juror.

	Special Issue No. 4.  We, the jury, unanimously find and determine beyond a
reasonable doubt that the answer to this Special Issue is no.

	Signed by the presiding juror.

The trial judge then polled the jurors, and they stated that the verdict was unanimous.  The
trial judge then sentenced Soffar to death and excused the jury.  After the jury was excused,
the trial judge called the attorneys to the bench and stated, "I didn't turn to the last page and
he didn't sign the last page."  The following then transpired:
	[PROSECUTOR]:  I assume you'll send it back.
 
	[DEFENSE COUNSEL]:  They have been released.
 
	[PROSECUTOR]:  But they're back in the jury room and I believe that
proper procedure would be to tell the bailiff not to let them go.
 
	THE COURT:  Don't let them go yet.
 
	Okay.  I think I will bring them back out and instruct them that they
need to sign the last page if this is their verdicts [sic].
 
	They've been polled though.
 
	[PROSECUTOR]:  I would ask that you bring them back out and send
it back with them to the jury room.
 
	[DEFENSE COUNSEL]:  Please note our objection to that Your
Honor.
 
	THE COURT:  Yes, ma'am.
 
	Would you ask them to come back out.
 
	(Jury Seated).
 
	THE COURT:  Everybody be seated please.  I'm sorry but I didn't turn
to the last page of the verdict form and it must be signed also, if this is
indeed your verdict.  So if I could send you back with instructions to
complete the paperwork I would appreciate it.

	FOREPERSON:  Okay.

. . . 
 
	(Jury Seated).

	THE COURT:  Everybody can be seated and will you hand the
paperwork to Deputy Seigel.  And you have signed the final page? 
Thank you again for your service and ya'll truly are free to go now. 
Thank you.

	Citing Webber v. State (120) and West v. State, (121) Soffar alleges that the trial judge was not
authorized to recall the jury in order to correct their verdict.  
	In Webber, the issue was whether the jury recommended probation. (122)  The foreman
signed the blank on the verdict form showing that punishment had been probated, but the jury
informed the trial judge after being excused that probation was not their intent. (123) 
	In West, the issue was whether the jury found the defendant guilty. (124)  The foreman
signed the verdict sheet indicating a guilty verdict, but the trial judge discovered, after the jury
was excused, that the foreman had also signed the verdict sheet indicated a not-guilty
verdict. (125) 
	These cases stand for the proposition that a judge is not authorized to recall the jury
after they have been discharged and have separated and have them correct their verdict. (126) 
However, a momentary separation of the jury from the presence of the judge will not preclude
the judge from recalling them to correct their verdict where it appears that no one talked to
the jurors about the case. (127) 
	Even assuming that the trial judge erred by recalling the jury after they had been
excused and had momentarily gone back to the jury room, Soffar cannot demonstrate harm. (128) 
There was no uncertainty regarding the jury's intent in answering the special issues.  Jurors
were polled prior to being excused, and they clearly indicated that their verdict was
unanimous.  They needed only to memorialize their informal verdict with the simple addition
of the foreman's signature on the last page. (129)  Soffar's substantial rights were not affected
by the jury doing so. (130)  Because the record does not show harm, there is no need for this
Court to abate the appeal.
	We further hold that Soffar failed to preserve his constitutional claims regarding due
process, cruel and unusual punishment, and double jeopardy.  Soffar failed to object on these
bases at trial. (131)  Points of error seventeen (a), seventeen (b), and seventeen (c) are overruled. 
Death-Penalty Procedure
	In point of error eighteen, Soffar alleges that the death penalty is imposed in an
arbitrary, freakish and discriminatory manner.  He asserts, "Prosecutors' unfettered,
standardless and unreviewable discretion under Article 37.0711 violates equal protection, due
process and the Eighth Amendment."  We have rejected this claim in previous cases, (132) and
Soffar offers no reason for us to reconsider our prior holdings.  Point of error eighteen is
overruled.
	In point of nineteen, Soffar asserts, "The Eighth Amendment's Prohibition Against
Cruel and Unusual Punishment and the Fourteenth Amendment's Due Process Clause Prohibit
Max Soffar's Execution, Given that He Has Spent Close to Twenty-Five Years Awaiting it." 
We have previously rejected this type of claim. (133)  "The present standards of decency do not
deem cruel and unusual the delay occasioned while a condemned prisoner pursues direct
appeals and collateral relief." (134)  Point of error nineteen is overruled.   
Ineffective Assistance of Trial Counsel
	In point of error twenty, Soffar points to several instances in which he allegedly
received ineffective assistance of counsel.  First, he complains that counsel failed to object
to the prosecutor's improper jury arguments, as described in point of error twelve.  Second,
he complains that counsel failed to object to the trial judge's instructions at issue in points of
error sixteen (a), (b), and (d).  Third, he claims that counsel failed to properly object to the
trial judge's admission of his oral statements, as discussed in point of error eleven.  Finally,
he alleges that counsel failed to preserve his challenge to the legality of the grand jury, as set
out in point of error five.
 To prevail on a claim of ineffective assistance of counsel, Soffar must show (1)
deficient performance and (2) prejudice. (135)  To show deficient performance, he must prove,
by a preponderance of the evidence, that counsel's representation fell below the standard of
professional norms. (136)   And to demonstrate prejudice, he must show a reasonable probability
that, but for counsel's unprofessional errors, the result of the proceeding would have been
different. (137) 
	 Appellate review of trial counsel's representation is highly deferential, and we
presume that counsel's actions fell within the wide range of reasonable and professional
assistance. (138)  If the reasons for counsel's conduct do not appear in the record and there is at
least the possibility that the conduct could have been grounded in legitimate trial strategy,
we will defer to counsel's decisions and deny relief on an ineffective assistance claim on
direct appeal. (139) 
	We first point out that we have addressed claims eleven and sixteen (a), (b), and (d)
and have overruled them on their merits.  Further, the reasons for counsel's conduct do not
appear in the record.  Therefore, there is at least the possibility that his conduct could have
been part of a legitimate trial strategy.  Without more, we must defer to counsel's decisions
and deny relief. (140)  Point of error twenty is overruled.
Speedy Trial
	In his twenty-second point of error, Soffar contends that his federal right to a speedy
trial was violated because twenty-five years elapsed between his first trial in 1981, at which
he received ineffective assistance of state-appointed counsel, and his retrial in 2006.  He does
not claim that he was denied his right to a speedy trial after the trial court's judgment was
reversed.  In relying on the twenty-five year delay, he contends that his retrial was
fundamentally unfair because key defense witnesses died, important evidence was missing,
and witnesses' memories had faded.  
	To determine whether a defendant's federal speedy-trial right has been violated, courts
consider the following four factors: "Length of the delay, the reason for the delay, the
defendant's assertion of his right, and prejudice to the defendant." (141)  The length of the delay
is the "triggering mechanism." (142)  "Until there is some delay which is presumptively
prejudicial, there is no necessity for inquiry into the other factors that go into the balance." (143) 
We recently observed that a seventeen-month delay is presumptively prejudicial, while a four-month delay is not. (144) 
	The twenty-five years between his first trial and retrial is presumptively prejudicial,
according to Soffar.  In response to Soffar's calculation, the State contends that the time that
Soffar prosecuted his appeal and sought state and federal habeas corpus relief should not be
included in the speedy-trial analysis.  
	We agree with the State.  Soffar's claim amounts to an assertion that he should have
been prosecuted while incarcerated pursuant to a presumptively valid conviction. (145)  This is
illogical; any effort to retry Soffar while his appeal and post-conviction proceedings were
underway would have run afoul of the Double Jeopardy Clause.  Further, Soffar's claim that
ineffective counsel at his first trial ultimately resulted in the denial of his right to a speedy trial
is without merit.  Soffar has not shown that the State in any way intended to deprive him of
his right to a speedy trial when his first trial attorneys were appointed.   Following Soffar's
logic would undoubtedly lead to an absurd result--an individual whose conviction is later
reversed may be immune from re-prosecution based on the denial of the right to a speedy
trial. (146)  Such a result would undermine the policy interests that have been preserved by the
Supreme Court's interpretation of the Speedy Trial Clause-- society's interest in prosecuting
persons accused of crimes, "rather than granting them immunization because of legal error
at a previous trial" and making it more probable that appellate courts will overturn convictions
when necessary. (147) 
	So, in this case, we conclude that the speedy-trial clock began to run, at the earliest,
on the date that Soffar's conviction and sentence were reversed.  On December 8, 2004,
following the Fifth Circuit's ruling, the federal district court ordered Soffar's release within
120 days of the order, unless the State began to retry Soffar or released him from custody
within the 120-day time frame.  Our decision to exclude the time before the December 8th
final order in our length of delay analysis is consistent with Supreme Court precedent and
decisions from other state appellate courts. (148)  Because we conclude that the time period here
is not presumptively prejudicial, we have no need to consider the remaining Barker factors.
Soffar's twenty-second point of error is therefore overruled.          
Juror Excusals
	In point of error twenty-three, Soffar claims that the trial judge committed reversible
error by denying his pretrial motion for the court to determine excusals rather than the clerk. 
The issue was raised in a pre-trial motion and addressed at a hearing.  The trial judge denied
the motion after the following exchange:
	[DEFENSE COUNSEL]:  The other aspect of this motion is for The
Court [sic] to determine all excuses because we think that is the proper
province of The Court [sic] rather than a clerk with all due respect over
at the jury building deciding whether people should be let off from jury
service.
 
	[PROSECUTOR]: My understanding is that the clerk doesn't decide
that per se but it's a Judge over there.  Whenever they get ready to call
a panel they ask for people who have excuses who may not have
already used their excuses.  By the way that we have the system set up
by electronic e-mailing or whatever they do.  I thought we had a Judge
over there every morning that goes over and - - used to.
 
	THE COURT: We used to.  I don't know how we do it now.
 
	[DEFENSE COUNSEL]: Well, I can represent that I was called for jury
service in August and unfortunately I never got out of the building[. ]
[T]he process it was explained to us and as I observed it people who
felt they were ineligible had a problem one way or the other were
invited to go speak to the clerk at the window who then according to
what we were told was passing on whether those people could leave
and I will report that a number of them never came back.

	[PROSECUTOR]: If they have a statutory exemption and they just
hadn't figured out how to use it prior to that time but I'm fairly
confident that the clerk's not saying well I got a lot of things to do
today, well heck go on home.
 
	THE CLERK: From what I understand the procedure is that if they are
exempt one of the exemptions is listed on there I think they do let those
people go but if it's something else then they say you have to go to the
Court and talk to the Judge there.  That's my understanding.

	Texas Code of Criminal Procedure, Article 35.03 provides that "the court shall then
hear and determine excuses offered for not serving as a juror, including any claim of an
exemption or a lack of qualification, and if the court considers the excuse sufficient, the court
shall discharge the prospective juror or postpone the prospective juror's service to a date
specified by the court, as appropriate." (149)  However, "in a case other than a capital felony case,
the court's designee may hear and determine an excuse offered for not serving as a juror,
including any claim of an exemption or a lack of qualification." (150)   Soffar contends that the
trial judge violated Article 35.03 because the statute permits a court designee to grant excusals
only "in a case other than a capital felony case." 
	In Chambers v. State, we construed this language "as referring to the distinction
between a special venire and the formation of panels through a general assembly." (151)  We
rejected Chambers's claim, holding:
	when viewed in the context of the jury formation process, we again cannot
conclude that this language would prohibit the general assembly judge from
designating personnel to make such decisions.  This is because at the time the
summoned jurors apply for excuses, they have not been assigned to any
particular case.  There is no way of knowing what kind of case the prospective
jurors would subsequently be assigned to, capital or noncapital . . . In the case
of a special venire called in a capital case, the trial judge cannot designate
others to make decisions with respect to excuses.  Here, the potential jurors who
were granted excuses by court designees were general assembly veniremembers
and were not assigned to appellant's or any particular case. (152)

	It appears from the discussion at the pretrial hearing that Soffar was complaining about
a court designee granting excuses to general-assembly veniremembers.  Thus, under
Chambers, this procedure did not violate Article 35.03. (153) 
	Soffar also alleges that the trial court's ruling violated his rights to be present at all
critical stages of the trial and to have the petit jury selected from a venire that represents a fair
cross-section of the community.  Soffar generally raised these arguments in his written motion
but failed to reurge them at the hearing on the motion. (154)  And we have previously rejected
constitutional challenges to a general-assembly judge ruling on veniremember excuses in a
defendant's absence. (155)  Point of error twenty-three is overruled.   
Juror Impanelment
	In his twenty-fourth point of error, Soffar claims that the trial judge violated his federal
and state constitutional rights--specifically the Fifth, Sixth, Eighth, and Fourteenth
Amendments to the United States Constitution and Article I, Sections 3, 10, 13, and 19 of the
Texas Constitution--by denying his pretrial motion for separate juries at the guilt and penalty
phases of his trial.  Soffar maintains that two separate juries are necessary to prevent a "death
qualification procedure processing effect," causing a single jury to unfairly presume guilt and
focus solely on punishment.  He also argues that the application of the death-qualification
procedure to a jury determining guilt results in an unconstitutionally biased jury by excluding
jurors opposed to capital punishment.  He concludes that such categorical exclusion ultimately
undermines public faith in the objectivity of the criminal-justice system.
	Initially, we observe that Soffar does not explain how the protection afforded by the
Texas Constitution differs from that of the federal constitution.  Therefore, for the purposes
of this appeal, we conclude that Soffar has inadequately briefed his state constitutional claim. 
Additionally, we recognize that the due-process considerations raised under the Fifth
Amendment, which do not apply to the State, are identical to those under the Fourteenth
Amendment. (156)  The United States Supreme Court has rejected similar federal constitutional
claims made under the Sixth and Fourteenth Amendments, and we have rejected the same
under the Sixth, Eighth, and Fourteenth Amendments. (157)  Point of error twenty-four is
overruled.
State's Challenges for Cause
	In points of error twenty-five (a) and (b), Soffar alleges that the trial judge erred in
granting the State's challenges for cause against prospective jurors Jonni Lisy and Jeanne
Rehfeld Klein.  He argues that the challenges violate the legal standard established by
Witherspoon v. Illinois, which allows the for-cause exclusion of jurors for their opposition to
the death penalty only if those beliefs would prevent them from complying with applicable
capital punishment procedures. (158)  Soffar contends that, while both Lisy and Klein expressed
objections to capital punishment, neither expressed an inability to comply with Texas death-penalty laws.  He argues that granting the challenges violated his constitutional rights under
the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution, Article I,
Sections 10, 13, 15, and 19 of the Texas Constitution, and Article 1.05, Texas Code of
Criminal Procedure.
	When evaluating a trial judge's ruling to grant a challenge for cause, we accord
considerable deference to the trial judge's ability to observe the prospective juror's demeanor
and response. (159)  As a result, "we will reverse such a decision only for clear abuse of
discretion; i.e., only when the trial judge's decision was so clearly wrong as to lie outside that
zone within which reasonable persons might disagree." (160) 
	The record reflects that, on six occasions, Lisy stated that she would require more than
proof beyond a reasonable doubt to apply the death penalty.  She consistently asserted her
need to "believe without any doubt in my mind."  Soffar contends that this heightened
threshold constitutes desirable "residual doubt" appropriate for a juror in a capital trial.  The
Supreme Court, however, has explicitly denied the existence of a constitutional right to a
heightened burden of proof in capital sentencing. (161)  Further, a potential juror's imposition of
a standard higher than beyond a reasonable doubt constitutes proper cause for the dismissal
of that juror. (162)  Point of error twenty-five (a) is therefore overruled.
	We now examine Soffar's claim regarding prospective juror Klein.  When first
questioned by the prosecution, Klein was adamant that she could not impose the death
penalty; she could not envision any circumstances that would warrant a death sentence.  But
when questioned by Soffar's counsel about each of the special issues individually, Klein
indicated that she would be able to answer each of them.  Klein reverted to her inability to
impose the death penalty when the State questioned her a second time.  She explained that she
was a forgiving person and that knowing herself, she was unable to imagine a situation in
which she would vote no to the mitigation special issue.  She vacillated slightly when asked
about putting her personal beliefs aside and evaluating only the evidence.  In the end, based
on the totality of her statements, we conclude that Klein appeared unable to foresee a situation
in which death would be an appropriate punishment.  Given Klein's personal opposition to
the death penalty and her vacillation, we conclude that the judge's decision to grant the State's
challenge was well within the realm of reasonable disagreement.  Point of error twenty-five
(b) is therefore overruled.
Expert Testimony
	In points of error twenty-six (a) through (c), Soffar argues that the trial judge erred in
admitting Dr. Gildenberg's testimony that Garner suffered from retrograde amnesia because
it was unreliable and speculative, the State did not adequately prove his qualifications as an
expert on memory loss, and the testimony was admitted for an improper purpose.  Soffar
contends that the admission of this testimony violated Texas Rule of Evidence 702 and his
constitutional rights under the Eighth and Fourteenth Amendments to the United States
Constitution and Article I, Sections 13 and 19 of the Texas Constitution.
	Regarding point of error twenty-six (a), Soffar objected to Dr. Gildenberg's testimony
at the Daubert/Kelly hearing, arguing that Dr. Gildenberg should not be permitted to testify
that Garner was diagnosed with retrograde amnesia.  The trial judge overruled the objection
and determined that the testimony would be admissible.  However, when Dr. Gildenberg
testified before the jury, he never testified that Garner suffered from retrograde amnesia. 
Indeed, in his brief, Soffar acknowledges this by stating, "At no point in the trial could or did
Dr. Gildenberg testify as to Greg Garner's actual memory loss or the presence or degree of
retrograde amnesia."  We therefore overrule point of error twenty-six (a).  
	As for point of error twenty-six (b)--that the trial judge erred in ruling that Dr.
Gildenberg was qualified as an expert on potential memory loss--we conclude that this claim
is not preserved.  At no time did Soffar object to Dr. Gildenberg's qualifications to testify as
an expert on potential memory loss. (163) 
	Finally, in claiming that the trial judge admitted Dr. Gildenberg's testimony for an
improper purpose in point of error twenty-six (c), Soffar contends that Dr. Gildenberg's
testimony amounted to an attack on Garner's credibility as a witness.   Soffar failed to object
to Dr. Gildenberg's testimony on this basis at trial with an explanation as to why it is
improper.  Therefore, his claim was not properly preserved. (164)  Moreover, we see no error. 
Dr. Gildenberg never opined on Garner's credibility as a witness; therefore, Dr. Gildenberg's
testimony did not intrude on the jury's role to assess the credibility of Garner's statements and
testimony. (165) 
Sexual Assault Confession
 	Soffar requested and was appointed counsel on the capital-murder charge on August
8, 1980.  Detective Bockel, with the Houston Sheriff's Officer, started investigating the crime
after Ladd called and informed him that Soffar confessed to a sexual assault.  Investigating
the lead, Bockel contacted the victim, Caroline Knight, and interviewed Soffar while he was
in custody for the capital-murder charge.  At that time, without the assistance of counsel,
Soffar executed a written statement confessing to the sexual assault.  Soffar's statement was
admitted into evidence during the punishment phase of Soffar's trial.  
	In points of error twenty-seven (a) and (b), Soffar contends that the trial judge erred
in admitting his alleged confession to a sexual assault elicited in violation of his Fifth and
Sixth Amendment rights, his rights under Article I, Sections 10, 13, and 19 of the Texas
Constitution, and his rights under Miranda v. Arizona. (166)  Soffar claims that, because his right
to counsel had attached after he requested and was appointed counsel, (167) the confession
obtained by the State without his lawyer present was erroneously used in the punishment
phase of his murder trial.  
	First, we observe that Soffar does not explain how the protection afforded by the Texas
Constitution differs from that of the federal constitution.  As a result, Soffar's Texas
constitutional claim is inadequately briefed.   
	The Sixth Amendment right to counsel attaches after adversarial judicial proceedings
have begun, (168) and extends to all "critical stages" of criminal proceedings. (169)  This includes
interrogation. (170)  The right is limited; it is "offense specific" and does not extend to all future
prosecutions. (171)
	Soffar was not charged with sexual assault when he was questioned by Bockel; thus,
his right to counsel had not attached for that crime.  Soffar argues, however, that his right to
counsel for the capital-murder charge extended to the sexual-assault-offense confession
because the confession was used by the State in the punishment phase to prove future
dangerousness.  Our decisions in  Wesbrook v. State (172) and Thompson v. State (173) support
Soffar's contention that the trial judge erred in admitting Soffar's confession to the sexual-assault offense into evidence.  In those cases, the defendants, formally charged with capital
murder and represented by counsel, were questioned by the State about extraneous, uncharged
offenses without the assistance of counsel.  At the punishment phase of the defendants' trials,
the State used the incriminating information given by the defendants about the extraneous,
uncharged offenses to prove that the defendants constituted a future danger.  We held that the
defendants' Sixth Amendment right to counsel was violated.  In Wesbrook, we concluded that
the error was not harmful, but in Thompson we concluded that it was and ordered a new
punishment hearing. 
	Having found error, we must determine whether the admission of Soffar's confession
was harmless beyond a reasonable doubt. (174)  Soffar contends that the admission of his
confession to prove future dangerousness was harmful because it was the most serious
extraneous offense and it formed a significant part of the State's case for death.  We disagree
and hold that the error was harmless.
	First, there was other convincing evidence establishing Soffar as Knight's assailant. (175)
 
Knight testified that she identified him at his trial in 1981.  She also testified about the assault,
which occurred in September 1979.  Knight noticed Soffar standing beside her car when she
exited a laundromat.  He asked her for a ride.   Knight agreed, even though she felt uneasy. 
Threatening Knight with a knife, Soffar ordered her to get out of the car and take her clothes
off.  He told her that he had killed three other women and that she would be the fourth.  He
then forced Knight to have vaginal intercourse while repeatedly stabbing the knife in the
ground above her head.  When he finished, Soffar walked off saying that he had done some
bad things in the past, but he had never "raped no chick before."  Knight got back in her car
and went to the police station.  Later, Knight's husband noticed that his twelve-string guitar,
which had been in the backseat of Knight's car, was missing. 
	Pamela Foley testified that she bought a twelve-string guitar from Soffar in September
1979 for her boyfriend.  She was later contacted by police about the guitar.  Ultimately, her
former boyfriend gave the guitar to police.  James Ougsgurger, Knight's husband at the time
of the assault, testified about owning the guitar and identified it in court.  
	Second, the remaining evidence of future dangerousness was strong.  Soffar's
behavioral problems began early in his childhood, and his past is replete with examples of his
inability to control his improper and violent behavior.  On numerous occasions, he acted
violently toward family, friends, law-enforcement officers, and animals.  
	Soffar was adopted as a baby by Zelda and George Soffar.  Zelda testified that Soffar
began to have behavioral problems in 1961 when he was six. In 1968, Zelda and George
committed Soffar to the Austin State Hospital after he was bitten by a coral snake and had
taken medication that "set him off."  Soffar's juvenile probation officer testified that Soffar
entered the system in 1968 because he had run away from home and his parents were unable
to control him.  Soffar remained at the Austin State Hospital for almost three years, from 1968
to 1970, though he would frequently run off.
	In 1970, Soffar was returned to his parents.  He was treated by two child psychiatrists
because Zelda observed Soffar "liking to inflict pain on animals and people."   When Soffar
was in eighth grade, Zelda and George took him out of school because Soffar was going to
be kicked out; he was unable to control his temper with the kids in school.   
	Soffar was referred to the Galveston Juvenile Probation Office a second time after he
assaulted a minor in 1970.  After Soffar committed a few more "minor" offenses, he was
brought to the attention of the juvenile court, and in August 1971, he was adjudicated a
delinquent.  He was placed on probation, assigned a probation officer, and was sent to live at
Boy's Country--a "dormitory type arrangement[] to give the kids kind of a family atmosphere
to where they would have access to farm animals and outside activities and so forth."  Soffar's
probation officer testified that despite being placed in an "environment with consistency,
structure and discipline," Soffar was unsuccessful at controlling his behavior.  He was
expelled from Boy's Country in 1972 for violating the terms of his probation.  The probation
office then placed Soffar with the Gulf Coast Trade School.  He was there from 1972 to 1973. 
	 In 1973, when Soffar was seventeen and about to age-out of the juvenile system,
probation officials tried to get him more help through vocational training with the Vocational
Rehabilitation Center; Soffar was never placed on a job site and was later terminated from the
agency.  
	 Zelda stated that Soffar broke his sister's arm because of a "sibling rivalry;" the two
fought "all the time."  She also testified that Soffar had beat a horse until it bled because the
horse refused to do his "bidding."  She also testified that he abused people "[i]n a fit of
temper."  Usually, he would swing at things or throw bottles at walls or inanimate objects. 
Once when he lost his temper, Soffar chased Zelda around the house with a butcher knife, and
she called the police.   He also struck George once. 	
	In 1977, Zelda flagged down a police officer outside her home because Soffar was
tearing up the house.    When the officer attempted to arrest a friend of Soffar's for public
intoxication, Soffar grabbed the officer's hand in an attempt to help free his friend.  In the
process, Soffar burnt the officer's hand with a cigarette.  Soffar was then arrested and charged
with aggravated assault.
	In 1978, Soffar escaped from the custody of a law-enforcement official who was in the
process of citing Soffar for traffic violations.  Soffar was later convicted of resisting arrest.
	In 1979, Soffar pointed a pistol at police officers, stating that he was "going to kill
them son of bitches."  Soffar was arrested for reckless conduct.  
	In 1980, Soffar lived at his parent's house with his girlfriend, Katherine Moll, who was
seventeen at the time.  She testified that Soffar had a Doberman.  Soffar had the dog's ears
cut, and the dog would paw at the tape on his ears and pull it off.  Soffar took the dog out back
and shot him.  Soffar told Moll that "he couldn't afford to keep bringing him back to have his
ears fixed again and taped up."  Later, Soffar took Moll out into the woods in the back of her
parent's house and held a .38 caliber snub-nose pistol to her head.  He then told her that he
would shoot and kill her and bury her in the woods with five other women he had buried out
there.  A neighbor heard Moll crying and called police.  When Soffar and Moll came out of
the woods, the police were there.  Soffar ordered Moll to take the gun and put it in her pocket. 
When the police asked for the gun, Moll gave it to them.  Soffar was charged with terroristic
threats.    
	The State's punishment evidence also included Soffar's prior convictions.  In 1975,
Soffar was convicted of resisting arrest, possession of marijuana, and enticing a child.  In
1976, he was convicted of theft, burglary of a habitation with intent to commit theft, and
burglary of a coin-operated machine.  In 1978, he was convicted of possession of marijuana. 
And in 1980, he was convicted of reckless conduct.   
	Finally, the evidence showed that Soffar was unable to comply with prison rules while
incarcerated.  In 1982, he possessed contraband.  In 1984, he threatened an officer, failed to
obey orders, and possessed a weapon.  He was also cited with a level-one escape.  In 1985,
while incarcerated, Soffar threw urine on a correctional officer.  The officer believed Soffar
did this because Soffar was angry that the officer turned him in for having contraband in his
cell.   Also in 1985, Soffar possessed a weapon, damaged or destroyed property, and failed
to obey orders.  In 1987, Soffar was cited for being out of place.  In 1990, he was cited with
damaging or destroying property and threatening to inflict harm on another inmate.  In 1992, 
he possessed contraband.  In 1995, he possessed marijuana and tobacco.  In 1996, he
threatened to inflict harm on an officer. In 1997, he was cited for using an intoxicating
inhalant.  In 1998, he was cited for possessing marijuana and tobacco.   
	With the foregoing evidence in mind, including evidence of the current offense--for
which Soffar showed no remorse when confessing to Bryant and Cass--we hold that, beyond
a reasonable doubt, Soffar's sexual-assault confession did not influence the jury's
determination that Soffar is a future danger.  Therefore, we overrule Soffar's point of error
twenty-seven (a). 
	In point of error twenty-seven (b), Soffar argues Bockel's interrogation violated his
Fifth Amendment right against self-incrimination because he was not informed that any
confession could be used against him during the sentencing phase of his capital trial.  Soffar
incorrectly relies on Estelle v. Smith for the requirement that Miranda warnings must inform
the suspect when statements can be used in the penalty phase of a capital trial. (176)  In that case,
the United States Supreme Court found error because the suspect did not receive any Miranda
warnings at all, not because the warnings did not adequately address the potential for the
statements to be used during capital sentencing. (177)  As stated above, Detective Bockel
informed Soffar of his rights under Miranda, and the record reveals that Soffar knowingly and
voluntarily waived his Miranda rights.  Soffar provides no authority to support his contention
that the warnings should include a specific capital-punishment warning.  Further, the warnings
given were broad enough to inform Soffar that any statements could have been used against
at his capital-murder trial. (178)  Point twenty-seven (b) is overruled.
Knight's In-Court Identification
	In point of error twenty-eight, Soffar alleges that the trial judge erred in permitting
Knight to testify about her 1981 in-court identification of Soffar as her assailant because it
was tainted by suggestive governmental tactics.  Soffar contends that Knight was
"undoubtedly influenced by the State showing Soffar's image to her twice before the 1981
trial and by seeing Soffar brought into the courtroom by a guard [at his 1981 trial]."
 The United States Supreme Court, recognizing that pre-trial identification procedures
can sometimes be overly suggestive, has formulated a two-step analysis to be used when
evaluating the admissibility of an in-court identification: (1) whether the out-of-court
identification procedure was impermissibly suggestive; and (2) whether that suggestive
procedure gave rise to a very substantial likelihood of irreparable misidentification. (179)
  	Impermissible suggestiveness may result from an individual act or from the cumulative
effect of multiple acts. (180)  For example, it occurs when police point out the suspect, suggest
that the suspect's photo is included in an array, or suggest that the suspect is present in a
lineup. (181)  Also, the photo array or line-up itself may be impermissibly suggestive if the
suspect is the only individual matching the description provided by the witness. (182)  Viewing
the totality of the circumstances, any impermissibly suggestive procedure should be evaluated
against the following non-exclusive list of factors to assess the reliability of the identification:
(1) the witness's opportunity to observe the defendant during the crime; (2) the witness's
degree of attention during that observation; (3) the accuracy of the witness's prior physical
description; (4) the witness's degree of certainty when viewing a defendant; (5) and the
amount of time between the offense and the identification of the accused. (183)  The appellant
bears the burden to establish "by clear and convincing evidence that the in-court identification
is unreliable." (184) 
	While investigating the sexual-assault offense, approximately a month after the
offense, Bockel presented Knight with a photo spread that contained a photo of Soffar. 
Before showing her the photos, Bockel told her that her assailant "may or may not be in [the
array]."  Knight stated that when Bockel presented her with the photo spread, it was her
understanding that the person who assaulted her would be present.  Bockel had told her that
they may have caught her assailant and wanted her look at the spread to see if she could
identify him.  Knight identified Soffar and another man as the man who possibly assaulted
her.  Regarding Soffar, Knight said he "looked like the man but his face . . . was a little
thinner than the one who raped her."  She "was not comfortable saying for sure that was him." 
She also told Bockel that her assailant's hair seemed longer.  She did not tell Bockel that her
assailant was missing his two front teeth even though Soffar was missing his two front teeth. 
	A few days later Bockel assembled a live line-up that included Soffar.  The line-up was
conducted in the presence of Soffar's counsel, and Bockel instructed Knight that she was not
required to pick anyone and that her assailant might or might not be in the array.  Knight was
also given written instructions that stated that she "should not guess or attempt to conclude
that the person who committed the crime is present.  Remember it is just as important to clear
innocent persons from suspicions as it is to identify guilty parties."  Knight tentatively
identified Soffar as her assailant, but she could not "swear to it."   
	At Soffar's 1981 trial, Knight identified Soffar as her assailant when a guard escorted
Soffar into the courtroom.  She stated that she recognized him as soon as he walked in.  She
had no doubt that Soffar assaulted her and she was basing her identification on seeing him on
the night she was assaulted.  "[I]n court and also at the time of the assault he had short hair
and no facial hair and was heavier.  In the photo spread he had long hair, had lost a lot of
weight and had facial hair and I believe just the difference of seeing him in person versus a
photo."  Knight also stated that there was nothing about the courtroom atmosphere or seeing
Soffar with a guard that caused her to identify Soffar as her attacker.  She "had absolutely no
doubt when [she] saw him."     
	In this case, Soffar does not contest the validity of either the photo array or the line-up; (185) he cites only the cumulative effect of the repeated exposure.  While the record shows
that Knight picked Soffar out of the photo array and the live line-up, in each instance her
identification was only tentative.  Her tentative identification militates against a finding that
the pretrial procedures were overly suggestive.  Furthermore, Knight testified that she based
her in-court identification on her observation of Soffar during the attack, not on the photo
spread or the line-up.  
	Next, the law regarding suggestive identification procedures applies to procedures that
take place out of court.  Because Knight's 1981 identification was done in court, that her
identification might have been tainted by seeing Soffar with a guard does not affect its
admissibility, only its weight--an issue to be challenged by the defense through cross-examination.  Additionally, Soffar presents no evidence that he was brought into the
courtroom under uniquely prejudicial circumstances, and Knight steadfastly maintained that
she based her in-court identification solely on her memories from the assault.  Viewing the
facts in the light most favorable to the trial judge's decision to deny Soffar's request to
suppress Knight's 1981 in-court identification, (186) we conclude that Soffar has failed to
establish that either of the out-of-court identification procedures was impermissibly suggestive
so as to deny him due process of law.  Accordingly, we overrule point of error twenty-eight. 
Admission of Juvenile Conduct
 In point of error twenty-nine, Soffar argues that the trial judge violated his
constitutional right to a reliable capital-sentencing hearing and to due process of law by
admitting evidence regarding his prior juvenile conduct.  Soffar attempts to extend the holding
in Roper v. Simmons, which prohibits the execution of  juvenile offenders, (187) to support his
claim that evidence of prior juvenile offenses cannot be introduced during the sentencing
phase of a capital trial.  Soffar did not object on this basis when the juvenile-misconduct
evidence was offered by the State and admitted into evidence by the trial judge; he objected
on this basis only when the trial judge and the parties prepared the punishment charge. 
Soffar's objection was untimely and preserved nothing for our review. (188)  We therefore
overrule point of error twenty-nine.
Admission of Aggravating Conduct
 In his thirtieth point of error, Soffar complains that his rights to a reliable sentencing
hearing and to due process of law were violated by the admission of allegedly aggravating
conduct that was the result of his mitigating mental illness (i.e., organic brain syndrome). 
Soffar contends that all the extraneous offenses and bad acts that he committed were due to
mental illness; therefore, the State should not have been permitted to use that evidence in
pursuing a death sentence.  We conclude that Soffar failed to lodge a timely objection to this
evidence.  Soffar objected on this basis only when the trial judge and the parties were
discussing the punishment charge.  Because Soffar did not object on the basis he complains
about on appeal when the extraneous and bad-act evidence was offered or admitted, he failed
to preserve this ground for review. (189)  We therefore overrule Soffar's thirtieth point of error.
Admission of Prior Misdemeanor Convictions
	Soffar alleges in his thirty-first point of error that he was denied a fair sentencing trial
due to the admission of decades-old unconstitutional convictions that were irrelevant to
sentencing.  Specifically, Soffar complains about the admission of his 1976 convictions for
burglary of a coin-operated machine and his 1980 conviction for reckless conduct.  According
to Soffar, the State failed to show that, when pleading guilty to these offenses, Soffar waived
his right to confront witnesses and his right against self-incrimination.   Soffar also alleges that
the State also failed to show that Soffar knowingly and voluntarily waived his right to a jury
trial when entering his guilty pleas.  Our review of the record reveals that Soffar failed to
object on these bases at trial.  Soffar claimed only that the trial judge was required to find that
Soffar was the perpetrator beyond a reasonable doubt.  Thus, he failed to preserve this ground
for our review. (190)  Point of error thirty-one is overruled.  
Summation Misconduct
	In his thirty-second point of error, Soffar alleges that the State violated his constitutional
rights because of several acts of misconduct during its sentencing-phase summation. 
 Soffar first contends that the State mentioned facts outside the record when it argued
that Soffar assaulted two neighborhood children on October 18, 1970.  We have recognized
four acceptable categories of jury argument: (1) summary of the evidence; (2) reasonable
deduction from the evidence; (3) in response to argument of opposing counsel; and (4) plea for
law enforcement." (191) 
	Dr. Susan Stone, a defense witness, was asked on cross-examination whether one of the
reasons that Soffar was sent to Austin State Hospital was because of what "he had done in the
neighborhood regarding . . . the 2 little girls that he jumped on in the neighborhood."  Dr. Stone
responded, stating, "I don't remember the words jumped on but I remember there were some
issues in the neighborhood, yes."  Based on Dr. Stone's testimony, the State's argument was
a reasonable deduction from the evidence.  While Dr. Stone did not recall that Soffar had
"jumped on" two neighborhood girls, her answer gave the impression that Soffar had indeed
caused some type of physical harm to the girls.  Therefore, the State's argument was not
outside the record. (192)
	Next, Soffar complains that the State repeatedly compared the value of the victims'
lives to Soffar's life.  We assume that each of the complained-of instances is properly
preserved and conclude that Soffar has not shown that the arguments were improper; the State
did not compare the worth of the victims to other members of society. (193) 
	Soffar also alleges that the State personally attacked defense counsel's attempt to
present mitigating evidence.  Soffar points to the following remark: "And you know what all
the things that [defense counsel] says about his background, all the things that she says and she
wishes were so true[;] just because she says it doesn't make it true."  This statement, according
to Soffar, implied that defense counsel was misrepresenting the evidence.  Soffar did not object
to this statement at trial.  He argues, however, that he did not waive error because the statement
fits within the exception to the waiver rule, which provides that error is not waived for failure
to object "for cases in which the prosecutor's argument is so egregious that no instruction to
disregard could possibly cure the harm." (194) Soffar is incorrect.  The exception to the waiver
rule, as observed in Willis v. State, was overruled in our decision in Cockrell v. State. (195) 
Therefore, he has forfeited his right to initiate this complaint on appeal.
	Finally, Soffar contends that the State misstated the law when the prosecutor told the
jury that whether Soffar's mental issues constituted mitigating evidence was an open question. 
Soffar contends that his record of mental illness is inherently mitigating.  Soffar did not object
to the State's argument; therefore, we conclude that Soffar forfeited his complaint by failing
to object at trial. (196) 
	Based on the foregoing, we overrule Soffar's thirty-second point of error. 
Challenges to Lethal Injection Protocol
	In point of error thirty-three, Soffar challenges Texas' lethal-injection protocol.  In sub-
claims (a) through (c), he contends that the protocol violates the United States and Texas
Constitutions and international law.  In sub-claim (d), he complains about the trial judge's
failure to hold an evidentiary hearing on his pretrial motion challenging the protocol.  In sub-claim (e), he contends that the trial judge violated his Eighth Amendment rights by preventing
him from litigating his claim before the jury at sentencing.  
	Soffar's current challenges to Texas' execution protocol are not ripe for review. (197)  We
overrule points of error (a) through (c).  Further, because his claims are not ripe for review
now, they were not ripe for review at the time of his trial.  Therefore, the trial judge did not err
in overruling the complaints that are the subject of sub-claims (d) and (e).  Points of error
thirty-three (d) and (e) are overruled.   
Cumulative Error
	In point of error twenty-one, Soffar claims that he is entitled to reversal "due to the
cumulative harm of the errors."  We have recognized that a number of errors may be found
harmful in their cumulative effect; however, because we have only found one error at the guilt
phase and one error at the punishment phase, we cannot say that there is a  cumulative effect. (198)
Point of error twenty-one is overruled.
Conclusion
	Because we have overruled Soffar's thirty-three points of error, we affirm the trial
court's judgment. 
DATE DELIVERED: November 18, 2009
DO NOT PUBLISH 
1.   Soffar v. State, 742 S.W.2d 371 (Tex. Crim. App. 1987), cert. denied, 493 U.S.
900 (1989).
2.   Soffar v. Dretke, 368 F.3d 441 (5th Cir. 2004).
3.   Tex. Penal Code Ann. § 19.03(a).
4.   Tex. Code Crim. Proc. Ann. 37.071 § 2(g).
5.   Id. at § 2(h). 
6.   Miranda v. Arizona, 384 U.S. 436 (1966).
7.   Jackson v. Virginia, 443 U.S. 307, 319 (1979).    
8.   Threadgill v. State, 146 S.W.3d 654, 663 (Tex. Crim. App. 2004) (internal
quotation marks omitted).
9.   Watson v. State, 204 S.W.3d 404, 414-15 (Tex. Crim. App. 2006).    
10.   Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006).    
11.   Sells v. State, 121 S.W.3d 748, 754 (Tex. Crim. App. 2003).  
12.   Lancon v. State, 253 S.W.3d 699, 707 (Tex. Crim. App. 2008).  
13.   See Prible v. State, 175 S.W.3d 724, 730-31 (Tex. Crim. App. 2005); Sorto v.
State, 173 S.W.3d 469, 475 (Tex. Crim. App. 2005). 
14.   Lancon, 253 S.W.3d at 705.
15.   Watson, 204 S.W.3d at 414-15.  
16.   Id.
17.   Simpson v. State, 119 S.W.3d 262, 269 (Tex. Crim. App. 2003) (citing Guidry v.
State, 9 S.W.3d 133, 149 (Tex. Crim. App. 1999)). 
18.   See Hughes v. State, 4 S.W.3d 1, 6 n.10 (Tex. Crim. App. 1999).
19.   See id.
20.   547 U.S. 319 (2006).
21.   Heitman v. State, 815 S.W.2d 681, 690 n.23 (Tex. Crim. App. 1991).  
22.   Holmes, 547 U.S. at 324 (internal citations omitted).  
23.   Id.
24.   547 U.S. at 323.
25.   Id. at 323-24 (citing State v. Gregory, 16 S.E.2d 532 (S.C. 1941)).  
26.   Id. at 330.
27.   Id. at 331.
28.   Id. at 325-26 (citing Washington v. Texas, 388 U.S. 14 (1967); Chambers v.
Mississippi, 410 U.S. 284 (1973); Crane v. Kentucky, 476 U.S. 683 (1986); Rock v.
Arkansas, 483 U.S. 44 (1987)).
29.   Williamson v. United States, 512 U. S. 594, 598 (1994); Walter v. State, 267
S.W.3d 883, 889 (Tex. Crim. App. 2008).
30.   Williamson, 512 U.S. at 598.  
31.   588 S.W.2d 340 (Tex. Crim. App. 1979). 
32.   Id. at 342.
33.   Id. 
34.   Id. at 343. 
35.   Id. at 343-44. 
36.   Id. at 344. 
37.   Id.
38.   Id.
39.   Id.
40.   Id.
41.   615 F.2d 964, 974 (3rd Cir. 1980).
42.   Norwood v. State, 768 S.W.2d 347, 349 (Tex. App.--Corpus Christi 1989), pet.
dism'd, improvidently granted, 815 S.W.2d 575 (Tex. Crim. App. 1991); Autry v. Estelle,
706 F.2d 1394, 1401 (5th Cir. 1983).  
43.   Graham v. State, 994 S.W.2d 651, 654 (Tex. Crim. App. 1999); see also Autry,
706 F.2d at 1402.
44.   See Norwood, 768 S.W.2d at 350 (citing Autry, 706 F.2d at 1401).
45.   Autry, 706 F.2d at 1402. 
46.   Bridge v. State, 726 S.W.2d 558, 567 (Tex. Crim. App. 1986); Grayson v. State,
684 S.W.2d 691, 696 n.2 (Tex. Crim. App. 1984).  
47.   Grayson, 684 S.W.2d at 696.
48.   Id.  
49.   Wiley v. State, 74 S.W.3d 399, 405-06 (Tex. Crim. App. 2002).
50.   Segundo v. State, 270 S.W.3d 79, 88 (Tex. Crim. App. 2008).
51.   Id.
52.   Id.
53.   State v. Reid, 91 S.W.3d 247, 261 (Tenn. 2002).
54.   State v. Reid, 213 S.W.3d 792, 805 (Tenn. 2006).
55.   State v. Reid, 164 S.W.3d 286, 297-98 (Tenn. 2005).
56.   Wiley, 74 S.W.2d 399 at 405-06.
57.   Tex. R. App. P. 44.2.
58.   TEX. R. APP. P. 33.1.
59.   Muniz v. State, 573 S.W.2d 792, 796 (Tex. Crim. App. 1978) (citing Valdez v.
State, 408 S.W.2d 109 (Tex. Crim. App. 1966)).  
60.   Tex. R. App. P. 33.1; see also Pena v. State, 285 S.W.3d 459 (Tex. Crim. App.
2009).
61.  488 U.S. 51, 56 (1988).
62.   467 U.S. 479, 488 (1984).
63.   226 S.W.3d 634, 651 (Tex. App.--Waco 2007).
64.   Id.
65.   Id.
66.   Id. at 653.
67.   Id. at 651 (quoting Deberry v. State, 457 A.2d 744, 750 (Del. 1983)).  
68.   Id. (quoting Deberry, 457 A.2d at 752) (internal citations omitted).  
69.   Id. at 655 (applying harm analysis under Texas Rule of Appellate Procedure
44.2(a)). But see Youngblood, 488 U.S. at 60 (Stevens, J., concurring) (observing that
materiality "'must be evaluated in the context of the entire record.'") (citations omitted).
70.   TEX. R. APP. P. 38.1(h). 
71.   368 F.3d at 479.    
72.   604 S.W.2d 914 (Tex. Crim. App. 1980). 
73.   Id. at 922-26.
74.   Id. at 922-23.
75.   Id. at 921; see also Ohio v. Roberts, 448 U.S. 56, 73 n.12 (1980) (observing
that, when evaluating a prior opportunity for cross-examination, an inquiry into the
effectiveness of counsel during the prior proceeding may be required where a court
previously found that counsel rendered ineffective assistance at the prior proceeding).
76.   541 U.S. 36, 59 (2004).  
77.   Soffar, 368 F.3d at 480.
78.   See Ex parte Ellis, 233 S.W.3d 324, 331 (Tex. Crim. App. 2007).
79.   People v. Carter, 117 P.3d 476, 515 (Cal. 2005); see also People v. Wilson, 114
P.3d 758, 782 (Cal. 2005).    
80.   Dowthitt v. State, 931 S.W.2d 244, 257 (Tex. Crim. App. 1996) ("an officer
need not stop his questioning unless the suspect's invocation of rights is unambiguous . . .
.").
81.   Soffar, 300 F.3d at 596-97.
82.   Davis v. United States, 512 U.S. 452, 459 (1994). 
83.   Soffar, 300 F.3d at 595.  
84.   Russell v. State, 727 S.W.2d 573, 576 (Tex. Crim. App. 1987) ("appellant's
inquiry into the officer's opinion as to the necessity of counsel being present during
interrogation cannot be viewed as a clear invocation of his right to counsel . . . .")
(emphasis in original); Collins v. State, 727 S.W.2d 565, 569-70 (Tex. Crim. App. 1987)
(holding that appellant's inquiry as to whether he would receive counsel was not an
invocation of the appellant's right to counsel).
85.   See Pena, 285 S.W.3d at 464.
86.   Id.
87.   Delao v. State, 235 S.W.3d 235, 239 (Tex. Crim. App. 2007) (citing Arizona v.
Fulminante, 499 U.S. 279, 285-86 (1991)).
88.   Tex. Code Crim. Proc. Ann. art. 38.22 § 3(a)(1).  
89.   Stansbury v. California, 511 U.S. 318, 322 (1994).  
90.   Rhode Island v. Innis, 446 U.S. 291, 302 (1980).  
91.   Tex. R. App. P. 44.2(b).
92.   TEX. R. App. P. 33.1.
93.   Id.
94.   Tex. Code Crim. Proc. Ann. art. 38.22 § 7.
95.   Oursbourn v. State, 259 S.W.3d 159, 176 (Tex. Crim. App. 2008) (for an issue
to be raised by the evidence under Section 7 of Article 38.22, Texas Code of Criminal
Procedure, "there must be a genuine factual dispute . . . ."). 
96.   Cf. Oursbourn, 259 S.W.3d at 176-77 (noting similarity in language between
Article 38.22, Section 7, and Article 38.23 and stating that to establish a general factual
dispute under Article 38.23, a defendant must show that: "(1) the evidence heard by the
jury must raise an issue of fact; (2) the evidence on that fact must be contested; and (3)
the contested factual issue must be material to the lawfulness of the challenged conduct in
obtaining the statement claimed to be involuntary."). 
97.   Crane v. Kentucky, 476 U.S. 683, 690 (1986); United States v. Lewis, 592 F.2d
1282, 1286 (5th Cir. 1979); Myre v. State, 545 S.W.2d 820, 825 (Tex. Crim. App. 1977);
Anzaldua v. State, 502 S.W.2d 19, 23 (Tex. Crim. App. 1973).   
98.   Oursbourn, 259 S.W.3d at 176-77.
99.   Hankins v. State, 646 S.W.2d 191, 197 (Tex. Crim. App. 1983).
100.   Davidson v. State, 737 S.W.2d 942, 947 (Tex. App.--Amarillo 1987, pet.
ref'd).
101.   546 U.S. 517 (2006).
102.   442 U.S. 95 (1979).
103.   539 U.S. 510 (2003).
104.   542 U.S. 274 (2004).
105.   TEX. R. APP. P. 33.1.
106.   See Halprin v. State, 170 S.W.3d 111, 116 (Tex. Crim. App. 2005) (concluding
exclusion of evidence was harmless when the same type of evidence was presented from
other sources).
107.   TEX. R. APP. P. 38.1(h). 
108.   Fuller v. State, 253 S.W.3d 220, 232 (Tex. Crim. App. 2008).
109.   Id.
110.   Raby v. State, 970 S.W.2d 1, 3 (Tex. Crim. App. 1998) (citing Green v. State,
912 S.W.2d 189 (Tex. Crim. App. 1995)).
111.   Id.
112.   Busby v. State, 253 S.W.3d 661, 667 (Tex. Crim. App. 2008); Resendiz v. State,
112 S.W.3d 541, 548-49 (Tex. Crim. App. 2003).  
113.   Kansas v. Marsh, 548 U.S. 163, 173-74 (2006).
114.   See Mosley v. State, 983 S.W.2d 249, 264 (Tex. Crim. App. 1998).
115.   Russeau v. State, 171 S.W.3d 871, 885-86 (Tex. Crim. App. 2005); Rayford v.
State, 125 S.W.3d 521, 533 (Tex. Crim. App. 2003).
116.   Rayford, 125 S.W.3d at 534. 
117.   Roberts v. State, 220 S.W.3d 521, 531-32 (Tex. Crim. App. 2007).
118.   Gallo v. State, 239 S.W.3d 757, 779 (Tex. Crim. App. 2007), cert. denied, 128
S. Ct. 2872 (2008).
119.   546 U.S. 517, 523 (2006).
120.   652 S.W.2d 781 (Tex. Crim. App. 1983).
121.   340 S.W.2d 813 (Tex. Crim. App. 1960).
122.   652 S.W.2d at 782.
123.   Id.
124.   West, 340 S.W.2d at 814-15.
125.   Id.
126.   West, 340 S.W.2d at 815; Webber, 652 S.W.2d at 782.
127.   West, 340 S.W.2d at 815; Webber, 652 S.W.2d at 782.
128.   TEX. R. APP. P. 44.2(b).
129.   See Tex. Code Crim. Proc. Ann. art. 37.10(a).
130.   TEX. R. APP. P. 44.2(b).
131.   TEX. R. App. P. 33.1.
132.   Gallo v. State, 239 S.W.3d 757, 779-80 (Tex. Crim. App. 2007); Threadgill v.
State, 146 S.W.3d 654, 671-72 (Tex. Crim. App. 2004); Rayford, 125 S.W.3d at 534.
133.   Smith v. State, 74 S.W.3d 868, 875-76 (Tex. Crim. App. 2002).
134.   Id. at 875.
135.   Strickland v. Washington, 466 U.S. 668, 687 (1984).
136.   Id. at 688.
137.   Id. at 694.
138.   Garza v. State, 213 S.W.3d 338, 348 (Tex. Crim. App. 2007).
139.   Id.
140.   Garza, 213 S.W.3d at 348.
141.   Barker v. Wingo, 407 U.S. 514, 530 (1972).  
142.   Id.
143.   Id.
144.   Cantu v. State, 253 S.W.3d 273, 281 (Tex. Crim. App. 2008).  
145.   Barker, 407 U.S. at 527 (the State has the duty to bring a defendant to trial). 
146.   Id. at 522 (dismissal of indictment is the remedy when the right to a speedy
trial is violated); cf. United States v. Loud Hawk, 474 U.S. 302, 316 (1986) ("A defendant
who resorts to an interlocutory appeal normally should not be able to return to the district
court to reap the reward of a dismissal for failure to receive a speedy trial."). 
147.   United States v. Ewell, 383 U.S. 116, 121 (1966).
148.   Id. at 120-21; State v. Smith, 159 P.3d 531, 543-44 (Ariz. 2007); Pelletier v.
Warden, 627 A.2d 1363, 1371 (Conn. App. 1993); State v. Kula, 579 N.W.2d 541, 546-48
(Neb. 1998); see also Icgoren v. State, 653 A.2d 972, 976-979 (Md. App. 1995); State v.
Ferguson, 576 So.2d 1252, 1254 (Miss. 1991).
149.   Tex. Code Crim. Proc. Ann. art. 35.03 § 1.
150.   Id. at § 2.
151.   903 S.W.2d 21, 30 (Tex. Crim. App. 1995).
152.   Id.
153.   Id.
154.   TEX. R. APP. P. 33.1; Swain v. State, 181 S.W.3d 359, 365 (Tex. Crim. App.
2005).   
155.   Moore v. State, 999 S.W.2d 385, 399 (Tex. Crim. App. 1999).
156.  Jimenez v. State, 32 S.W.3d 233, 241-42 (Tex. Crim. App. 2000) (McCormick,
P. J., concurring).
157.   Buchanan v. Kentucky, 483 U.S. 402, 414-18 (1987) (citing Lockhart v.
McCree, 476 U.S. 162, 173-78 (1986)); Ramos, 934 S.W.2d at 366-69.
158.   391 U.S. 510, 523 n.21 (1968).
159.   Segundo v. State, 270 S.W.3d 79, 93 (Tex. Crim. App. 2008).
160.   Cantu v. State, 842 S.W.2d 667, 682 (Tex. Crim. App. 1992).
161.   Franklin v. Lynaugh, 487 U.S. 164, 188 (1988).
162.   Chambers v. State, 866 S.W.2d 9, 22 (Tex. Crim. App. 1993).
163.   TEX. R. APP. P. 33.1.
164.   Id.
165.   Compare with Yount v. State, 872 S.W.2d 706, 712 (Tex. Crim. App. 1993);
Cohn v. State, 849 S.W.2d 817, 819 (Tex. Crim. App. 1993).  
166.   384 U.S. 436 (1966). 
167.   But see Montejo v. Louisiana, 129 S. Ct. 2079 (2009).
168.   Id. at 2085.
169.   Montejo, 129 S. Ct. at 2085.
170.   Id. 
171.   Texas v. Cobb, 532 U.S. 162, 167-68 (2001).
172.   29 S.W.3d 103, 116-19 (Tex. Crim. App. 2000) (plurality opinion).
173.   93 S.W.3d 16, 22-27 (Tex. Crim. App. 2003). 
174.   Tex. R. App. P. 44.2(a). 
175.   See Mosley v. State, 983 S.W.2d 249, 258 (Tex. Crim. App. 1998) (We have
held in "the erroneous admission of evidence context[,] that the admission of other similar 
evidence can render error harmless."). 
176.   451 U.S. 454, 467 (1981).
177.   Id. at 469.
178.   See Miranda, 384 U.S. at 469 ("The warning of the right to remain silent must
be accompanied by the explanation that anything said can and will be used against the
individual in court. This warning is needed in order to make him aware not only of the
privilege, but also of the consequences of forgoing it. It is only through an awareness of
these consequences that there can be any assurance of real understanding and intelligent
exercise of the privilege.").
179.   Conner v. State, 67 S.W.3d 192, 200 (Tex. Crim. App. 2001) (citing Simmons
v. United States, 390 U.S. 377, 384 (1968)).
180.   Barley v. State, 906 S.W.2d 27, 33 (Tex. Crim. App. 1995).
181.   Id.
182.   Id.
183.   Loserth v. State, 963 S.W.2d 770, 772 (Tex. Crim App. 1998) (citing Neil v.
Biggers, 409 U.S. 188, 199 (1972)). 
184.   Cooks v. State, 844 S.W.2d 697, 731 (Tex. Crim. App. 1992).
185.   See Williams v. State, 937 S.W.2d 479, 488 (Tex. Crim. App. 1996).
186.  Loserth, 963 S.W.2d at 773-74.  
187.   543 U.S. 551, 578-79 (2005).
188.   TEX. R. APP. P. 33.1.
189.   Id.
190.   TEX. R. APP. P. 33.1.
191.   See Borjan v. State, 787 S.W.2d 53, 55 (Tex. Crim. App. 1990).
192.   See Cantu v. State, 842 S.W.2d 667, 690 (Tex. Crim. App. 1992) (counsel is
generally afforded wide latitude in drawing inferences from the record, as long as such
inferences are reasonable and offered in good faith).
193.   See Jackson v. State, 33 S.W.3d 828, 834 (Tex. Crim. App. 2000) (observing
that Payne v. Tennessee only "discourages 'measuring the worth of the victim compared
to other members of society."'). 
194.   Willis v. State, 785 S.W.2d 378, 385 (Tex. Crim. App. 1989), overruled in part
by Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996).
195.   Cockrell, 933 S.W.2d at 89.   
196.   Id.
197.   Gallo v. State, 239 S.W.3d 757, 780 (Tex. Crim. App. 2007).
198.   Chamberlain v. State, 998 S.W.2d 230, 238 (Tex. Crim. App. 1999); Wyatt v.
State, 23 S.W.3d 18, 30 (Tex. Crim. App. 2000).
