              IN THE COURT OF CRIMINAL APPEALS
                          OF TEXAS
                                        NO. AP-75,750


                             ADAM KELLY WARD, Appellant

                                                v.

                                  THE STATE OF TEXAS

                            ON DIRECT APPEAL
               FROM CAUSE NO. 23,182 IN THE 354th DISTRICT COURT
                               HUNT COUNTY



       K EASLER, J., delivered the unanimous opinion of the Court.

                                         OPINION

       Adam Kelly Ward was convicted in June 2007 of capital murder.1 Based on the jury’s

answers to the special issues,2 the trial judge sentenced Ward to death.3 Direct appeal to this




       1
           T EX. P ENAL C ODE A NN. § 19.03(a).
       2
           T EX. C ODE C RIM. P ROC. A NN. art 37.071 §§ 2(b), 2(e)
       3
           T EX. C ODE C RIM. P ROC. A NN. art. 37.071 § 2(g).
                                                                               WARD—2

Court is automatic.4 We conclude that Ward’s five points of error are without merit.

Consequently, we affirm the trial court’s judgment.

                                             Facts

       Ward was convicted of intentionally murdering Michael Walker while in the course

of committing obstruction or retaliation.5

       Ward’s family was cited numerous times for failing to comply with Commerce City’s

housing and zoning codes. At one time, a “demolish order” was issued on the Wards’ home,

but the Wards eventually agreed to comply with the codes governing their property. As a

result of the most recent violation—the presence of unsheltered storage—the City imposed

a clean-up deadline of June 11, 2005, or a non-compliance case would be filed with the

municipal court. The Wards did not comply with the notice letter.

       At 10:00 a.m. on June 13, 2005, Walker, a City of Commerce Code Enforcement

Officer, went to the Ward property to record the continuing violation. Walker wore his City

of Commerce work shirt and drove a marked City of Commerce truck. Walker was unarmed,

carrying only his digital camera. Ward was washing his car in the driveway when Walker

arrived.

       After parking his truck, Walker walked the perimeter of the Ward property and took

pictures. At some point, Walker and Ward began arguing. Ward’s father came outside and



       4
       T EX. C ODE C RIM. P ROC. A NN. art. 37.071 § 2(h).
       5
       T EX. P ENAL C ODE A NN. § 19.03(a)(2).
                                                                                   WARD—3

attempted to calm the men down. Ward then sprayed Walker with water from the hose that

he was using to wash his car. Walker used his cell phone to call his office and request an

officer’s assistance. Ward’s father tried to reason with Walker and told him, “We need to

sit down and talk about this.” But Ward’s father became concerned when he noticed that

Ward was no longer outside and advised Walker that it might be “best if he left the property.”

Ward’s father then ran to look for Ward, as he believed that Ward had a gun in his room.

Ward’s father did not warn Walker about this fact.

       Walker put his camera in the back of his truck and waited for the officer dispatched

to assist him. However, before Ward’s father could intervene, Ward, armed with a .45-

caliber pistol, ran out of the house toward Walker and fired at him. Walker tried to use his

truck as cover but Ward pursued him, chasing him around the truck at least twice, firing the

gun again. Walker then ran back towards the Ward home. While in pursuit, Ward shot

Walker several times. Walker finally fell across the sidewalk, and Ward shot him again at

close range. The medical examiner later determined that Walker sustained nine gunshot

wounds. After Walker fell down, Ward’s father was able to take possession of the gun from

Ward along with the empty magazine and another fully-loaded clip.

       In his confession, Ward stated that he believed that the “City” was after his family and

that he had previously been beaten up by the local police. He believed that the police would

kill him if he were arrested again. When Walker arrived, Ward thought that Walker was a

“bad ass, hot head,” and he believed that Walker and the former Code Enforcement Director,
                                                                                      WARD—4

Fred Eaton, had “threatened to tear down our house.” While Walker was taking pictures,

Ward said that he and Walker got into an argument about how Walker had parked his truck

on the street. Ward stated that Walker then started walking up to him “showing attitude,” so

Ward sprayed him with the hose. Ward claimed that, after he sprayed Walker with the hose,

he was in fear of Walker, “just the way he was walking up. He threatened to call the cops

and have—press charges on me and all.” Ward stated that he was in fear for his life because,

if the cops showed up to arrest him, he would probably end up dead. Ward said he got his

gun for “self defense” and initially just meant to scare Walker, but he admitted that he knew

he “emptied a magazine” at him. He confessed that he “overreacted” to the situation. There

was no evidence presented confirming Ward’s claims that he had ever been beaten by the

police.

                                     Mental Health Evidence

          In Ward’s first three points of error, he contends that the trial judge erred in limiting

evidence of his mental impairment at the guilt phase. After the State rested, Ward offered

testimony from forensic psychologist Dr. Kristi Compton and psychiatrist Dr. Heidi

Vermette, both of whom had testified during Ward’s competency trial and had also prepared

mitigation reports. Ward wanted to use their testimony not to show that he was legally

insane, but to negate the mens rea of the aggravating factors of obstruction or retaliation,
                                                                                 WARD—5

which elevated the crime to capital murder.6 Ward argues that the doctors’ testimony would

show that he did not intentionally commit obstruction or retaliation because he believed that

he was acting in defense of himself, his family, and his home. However, Ward did not raise

self-defense, and he concedes that a “diminished capacity” defense does not exist in Texas.7

Ward does not dispute that he was guilty of intentionally murdering Walker.

       A defendant’s right to present a defense includes the due-process right to the

admission of competent, reliable, exculpatory evidence to rebut any element of the offense.8

As with other elements of the offense, the mens rea element may be negated by relevant

evidence, and this evidence may sometimes include evidence of a defendant’s mental illness.9

However, such evidence may be excluded under Rule 403 if the probative value of the

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

issues, or misleading the jury.10 Such evidence may also be excluded if it does not actually

negate the applicable mens rea.11




       6
            See id.
       7
         See Ruffin v. State, 270 S.W.3d 586, 593 (Tex. Crim. App. 2008) (Texas has not
enacted any affirmative defenses, other than insanity, based on mental disease, defect, or
abnormality).
       8
            Id. at 594.
       9
            Jackson v. State, 160 S.W.3d 568, 574 (Tex. Crim. App. 2005).
       10
            Id. at 574; T EX. R. E VID. 403.
       11
            Ruffin, 270 S.W.3d at 596.
                                                                                  WARD—6

       Here, Ward wished to present evidence to negate the required mens rea of obstruction

or retaliation. A person commits the offense of obstruction or retaliation if he intentionally

or knowingly harms or threatens to harm another by an unlawful act:

       (1) in retaliation for or on account of the service or status of another as a:
               (A)     public servant, witness, prospective witness, or informant; or
               (B)     person who has reported or who the actor knows intends to
                       report the occurrence of a crime; or
       (2) to prevent or delay the service of another as a:
               (A)     public servant, witness, prospective witness, or informant; or
               (B)     person who has reported or who the actor knows intends to
                       report the occurrence of a crime.12

       The trial judge held a hearing outside the jury’s presence to determine the relevancy

and admissibility of Ward’s proffered testimony. To prevent the State from previewing the

defense’s mitigation case, the trial judge agreed to review the defense’s witness lists and

Compton’s and Vermette’s reports in camera. Ward presented the doctors’ reports as a

proffer of what their testimony would be at guilt phase of trial. If the trial judge found the

evidence relevant, the reports would be given to the State so it would have the opportunity

to make both relevancy and admissibility objections. If the trial judge found otherwise, the

reports would be sealed for appellate review. Following his review of the reports, the trial

judge determined that Compton’s testimony was inadmissible as it was not relevant “to any

issue in the [guilt] phase of trial.” On the other hand, the trial judge found that a specific

portion of Vermette’s report was admissible and her testimony would be limited to that




       12
            See T EX. P ENAL C ODE A NN. § 36.06(a).
                                                                                   WARD—7

portion of her report. All evidence ruled inadmissible was sealed for appellate review.

       The State argues that the prosecutor should not have been denied access to the expert

reports during the hearing and that Ward violated a pretrial order by not providing the reports

earlier. However, even though the trial judge took protective measures, it appears that the

State was provided with both reports before trial, as the prosecutor referenced actual pages

of the reports during the hearing.

       Vermette testified that, based on her review of Ward’s extensive records, testing and

interviews with Ward, and interviews with his family and counsel, Ward suffers from

“mental illness that’s best described as psychotic disorder, not otherwise specified, obsessive

compulsive personality disorder, and anti-social personality disorder.” She further testified

that Ward’s psychotic disorder causes disorganized speech and causes him to suffer paranoid

delusions such that he believes there might be a conspiracy against him and that people might

be after him or trying to harm him. Finally, she testified that Ward was suffering from this

psychotic disorder on the date of the offense. The trial judge provided a lesser-included

instruction on murder in the jury charge.

       In point of error one, Ward asserts that the trial judge reversibly erred in excluding

Compton’s testimony. He argues that Compton’s testimony was essential to persuade the

jury that “when Ward attacked Walker, he was consciously motivated only by his delusional

beliefs that Walker was attacking him.”        Compton’s report discussed Ward’s entire

background and history, described his delusional system, and concluded that Ward “lacked
                                                                                     WARD—8

the requisite mens rea to form intent.”

       Ward argues that he did not intend to use the evidence to show that he was incapable

of ever forming the intent necessary to commit capital murder, only that he did not have the

mens rea to commit obstruction or retaliation. Ward concedes that our holding in Jackson

v. State does not allow the defense to argue that the defendant is absolutely incapable, i.e.,

does not have the capacity to intentionally or knowingly perform an act.13 Rather, Ward

asserts that he was “attempting, through expert testimony, to negate the mens rea requirement

by showing that [he] did not act in retaliation, but rather out of a delusional belief that he was

under attack by an employee of the City of Commerce.”

       We review a trial judge’s decision to admit evidence under an abuse of discretion

standard.14 A trial judge abuses his or her discretion only when the decision lies “outside the

zone of reasonable disagreement.” 15 If the ruling was correct on any theory of law applicable

to the case, in light of what was before the trial judge when the ruling was made, then we will

uphold the judgment.16

       Here, Ward told the trial judge that he was not raising self-defense and that he was not



       13
            160 S.W.3d at 574-75.
       14
        Walters v. State, 247 S.W.3d 204, 217 (Tex. Crim. App. 2007); Zuliani v. State,
97 S.W.3d 589, 595 (Tex. Crim. App. 2003).
       15
            Id.; Cantu v. State, 842 S.W.2d 667, 682 (Tex. Crim. App. 1992).
       16
        State v. Ross, 32 S.W.3d 853, 856 (Tex. Crim. App. 2000); Romero v. State, 800
S.W.2d 539, 543-44 (Tex. Crim. App. 1990).
                                                                                    WARD—9
challenging his intent to murder Walker. Further, he did not raise an insanity defense.

Instead, Ward challenged only his mens rea to commit the aggravating offense of obstruction

or retaliation.

       The record shows that Compton’s report focuses on her opinion that Ward’s paranoid

delusions were created by, and learned from, Ward’s father. This, in conjunction with

Ward’s psychosis, led Ward to believe that most members of the Commerce City government

were out to get his family. This delusion led him to believe that he was being attacked by

Walker—a city employee. Therefore, Ward responded in a manner consistent with his

delusion. Compton concludes that Ward “lacked the requisite mens rea to form intent.”

Compton then defines “intent” as “a rational and cohesive thought pattern in which a person

is able to regulate their thought patterns and express their behavior in congruence with their

thoughts.” Ward relies on Compton’s opinion that he did not form the “intent” to obstruct

or retaliate.

       Texas Penal Code Section 6.03 defines “intentional” and “knowingly” as follows:

       (a) A person acts intentionally, or with intent, with respect to the nature of his
       conduct or to a result of his conduct when it is his conscious objective or
       desire to engage in the conduct or cause the result.
       (b) A person acts knowingly, or with knowledge, with respect to the nature of
       his conduct or to circumstances surrounding his conduct when he is aware of
       the nature of his conduct or that the circumstances exist. A person acts
       knowingly, or with knowledge, with respect to a result of his conduct when he
       is aware that his conduct is reasonably certain to cause the result.

Under the statutory definition, Compton’s report does not negate the required mens rea for

retaliation or obstruction. Instead, her report merely provides an explanation for the motive
                                                                                  WARD—10
behind Ward’s retaliation or obstruction of Walker—that Ward was indoctrinated over time

to distrust the government and to believe there was a conspiracy to get his family.

Consequently, Compton’s report reinforces the theory that Ward attacked Walker because

Walker worked for the City or because he wanted to stop Walker from calling the

authorities.17

       As in Jackson,18 the evidence Ward proffered presented only an excuse for the crime:

that Ward intentionally killed Walker because he was so paranoid that he thought Walker,

as a city employee, was out to get him. As we explained in Jackson, Texas law does not

recognize such an excuse.19 Further, under Rule of Evidence 403, Compton’s testimony

could have been overly confusing or misleading to the jury. The jury was charged with

applying the statutory definition to the facts of the case, and Compton’s definition of “intent”

varied significantly from the statutory definition. Therefore, we conclude that the trial judge

did not abuse his discretion by excluding Compton’s report or testimony. Point of error one

is overruled.

       In Ward’s second point of error, he complains that the trial judge erred in limiting


       17
          Cf. Ruffin, 270 S.W.3d at 596 (at trial for aggravated assault on a public servant,
mental health evidence admitted to show that, due to his delusions, defendant believed he
was shooting at Muslims, not police, because it was relevant to show defendant did not
intend to shoot a police officer).
       18
           160 S.W.3d at 572 (mens rea of murder not negated by evidence that defendant
killed his brother because he was so paranoid that he thought his brother was out to get
him).
       19
            Id.
                                                                                   WARD—11
Vermette’s testimony at the guilt phase. Specifically, he argues that Vermette should have

been allowed to testify regarding Ward’s specific delusions at the time of the offense and

how those delusions affected his mental state with regard to his intent to retaliate or obstruct.

We do not need to reach the merits of Ward’s claim because it was not preserved for review.

       To preserve a complaint for appellate review, a defendant must specifically object and

then either secure a ruling or object to the court’s refusal to issue a ruling.20 At the hearing,

Ward proffered Vermette’s report as a representation of her proposed testimony. The trial

judge ruled:

       I am prepared to consider Dr. Vermette’s testimony in the limited capacity of
       the clinical impressions regarding mental illness with some guidelines and
       caveats. One, only as to the symptoms of such orders—or disorders and only
       how they might affect the obstruction and retaliation issues, not the murder
       issues.

               And that no opinions be expressed as—obviously as to competency but
       as to the mens rea intent or the effect on the mens rea intent.

The trial judge then noted that Vermette’s testimony would be limited to two and one-half

pages of her report, starting at page nineteen. At this point, not only did Ward not object to

the trial judge’s ruling, but counsel stated, “I appreciate your ruling and I respect it and

whatever.” Counsel also informed the trial judge that there was nothing else that they needed

to discuss outside the presence of the jury.

       After Vermette’s testimony on voir dire, the trial judge ruled that Vermette could

testify regarding: (1) any mental impairment or mental illness that she found in Ward when


       20
        T EX. R. A PP. P ROC. 33.1(a).
                                                                                   WARD—12
she examined him; (2) whether, based on her professional knowledge, experience, and what

she had reviewed, any of those illnesses and their symptoms existed on June 13, 2005; and

(3) explanations of “a particular symptom, what it does, whether it causes delusions or what

kind of behavior it may cause.” Again, Ward did not object. Then, with Ward’s consent, to

prevent the jury from considering the evidence for insanity or competency, the trial judge

gave the following limiting instruction prior to Vermette’s testimony:

       And that is, Ladies and Gentlemen, that the testimony of [Vermette] is
       admitted for the sole purpose of assisting the Jury, if it does, in determining
       what mental impairments or illness, if any, [Ward] had on June 13, 2005. And
       if he had any, how, if at all, those impairments or illnesses influenced the
       mental state of [Ward] on June 13, 2005. And it is admitted for no other
       purpose.

       Next, even if Ward had preserved his claim, we would find no abuse of discretion.

Vermette, herself, testified on voir dire that her report was not done for the purposes of trying

to look back and see what Ward’s “mental state” was on the date of the offense. She stated

that she could not form an opinion about Ward’s mental state at the time of the offense, but

she could testify about how his perception of reality is distorted by his mental illness and that

he had the same illness at the time of the offense—the testimony ultimately presented before

the jury. Point of error two is overruled.

       In Ward’s third point of error, he posits that his Fourteenth Amendment federal due-

process rights were violated by the exclusion of Compton’s testimony and the limitation of

Vermette’s testimony. Ward assumes that the trial judge erred in excluding or limiting the

evidence. As we have already held that the trial judge did not err, Ward’s due-process rights
                                                                                  WARD—13
were not violated. Additionally, we note that the United States Supreme Court has held that

there is no due-process violation when all “mental disease” evidence at the guilt phase is

excluded when it is offered to rebut the mens rea element.21 Therefore, point of error three

is overruled.

                                   Death-Penalty Scheme

       In point of error four, Ward contends that the Texas death-penalty scheme is

unconstitutional because it fails to provide uniform, statewide standards to guide prosecutors

in their decisions to seek the death penalty. He argues that this failure violates his rights

under the Equal Protection Clause to the Fourteenth Amendment. We have previously

rejected the notion that there should be “a statewide policy or standard for determining in

which cases the State will seek the death penalty as opposed to leaving the decision in the

hands of the individual district attorneys.” 22 Ward relies upon Bush v. Gore,23 but we have

rejected the argument that a disparity in death-penalty decision making from county to county

violates the principles articulated in that decision.24 Point of error four is overruled.

       In Ward’s fifth point of error, he contends that Texas’s capital-sentencing statute


       21
            Clark v. Arizona, 548 U.S. 735, 779 (2006).
       22
          Roberts v. State, 220 S.W.3d 521, 535 (Tex. Crim. App. 2007); Crutsinger v.
State, 206 S.W.3d 607, 611-13 (Tex. Crim. App. 2006); Hankins v. State, 132 S.W.3d
380, 387 (Tex. Crim. App. 2004).
       23
            531 U.S. 98 (2000).
       24
        Roberts, 220 S.W.3d at 535; Threadgill v. State, 146 S.W.3d 654, 671-72 (Tex.
Crim. App. 2004).
                                                                                    WARD—14
impermissibly prevented the jury from giving meaningful consideration and effect to his

constitutionally relevant mitigating evidence under Penry v. Lynaugh (Penry I).25 He argues

that the statute is both contrary to and is an “unreasonable application of clearly established

Federal law.” Ward then mistakenly avers that he received jury instructions similar to those

in Penry I: (1) whether he had committed the offense deliberately, and (2) whether it was

probable that he would commit future violent acts constituting a continuing threat to society.

He argues that his trial was “flawed by the same constitutional error” as in Penry I.

        Because Ward committed this offense after September 1, 1991, the trial judge gave

the jury instructions set out in the current version of Article 37.071: (1) whether he is a future

danger, and (2) “[w]hether, taking into consideration all of the evidence, including the

circumstances of the offense, the defendant’s character and background, and the personal

moral culpability of the defendant, there is a sufficient mitigating circumstance or

circumstances to warrant that a sentence of life imprisonment rather than a death sentence

be imposed.” 26 The jurors were also instructed that they did not need to agree on what

particular evidence they found to be mitigating in order to answer the second special issue,

“yes.” 27

        We have previously considered the current capital-sentencing statute in light of Penry



        25
             492 U.S. 302 (1989).
        26
            T EX. C ODE C RIM. P ROC. A NN. art. 37.071 §§ 2(b)(1), 2(e)(1).
        27
            T EX. C ODE C RIM. P ROC. A NN. art. 37.071 § 2(f)(3).
                                                                                WARD—15
I and have repeatedly held that the instructions allow jurors to give meaningful consideration

and effect to mitigating evidence in accordance with clearly established federal law.28 Ward

provides us with no new argument that persuades us to reconsider our holdings. Point of

error five is overruled.

       We affirm the trial court’s judgment.




DELIVERED: February 10, 2010
DO NOT PUBLISH




       28
          See Busby v. State, 253 S.W.3d 661, 667 (Tex. Crim. App. 2008); Saldano v.
State, 232 S.W.3d 77, 107-09 (Tex. Crim. App. 2007).
