Affirmed and Memorandum Opinion filed June 11, 2019.




                                      In the

                    Fourteenth Court of Appeals

                              NO. 14-17-00613-CR

                 ALVARO ANGEL RODRIGUEZ, Appellant
                                         v.
                       THE STATE OF TEXAS, Appellee

                    On Appeal from the 178th District Court
                            Harris County, Texas
                        Trial Court Cause No. 1451265

                          MEMORANDUM OPINION

      A jury found appellant Alvaro Angel Rodriguez guilty of capital murder.
The trial court assessed punishment at life imprisonment without parole. Tex.
Penal Code Ann. §§ 19.02(b)(1), 19.03(a)(2). On appeal, appellant brings five
issues. First, he asserts the trial court erred by failing to instruct the jury that
another individual was an accomplice as a matter of law. In his second and third
issues, he contends the trial court abused its discretion by admitting as evidence
photographs that were irrelevant and unfairly prejudicial. In his fourth issue,
appellant asserts the trial court erred by denying his motion for new trial. Fifth and
finally, appellant complains that Penal Code section 19.03 is unconstitutional as
applied to him. We affirm.

                                   BACKGROUND

      In December 2014, Officer Hedger was dispatched to an apartment on Ward
Road after a woman called and reported that her boyfriend had been shot by a
masked man. When Hedger arrived at the scene, he found complainant, Anthony
Constante, shot dead on the apartment floor. Hedger observed there was damage to
the frame of the apartment’s front door.

      Officer Lunsford arrived and processed the scene. Lunsford determined the
door to the apartment was kicked in. Lunsford found several nine-millimeter bullet
shell casings and bullet holes around the apartment. Complainant had been shot
multiple times.

      Police received information that appellant was the shooter. Appellant lived
in the same apartment complex as complainant. Police found appellant at his place
of employment, a Home Depot distribution center nearby. Officers questioned
appellant about what clothing he had worn that day. Appellant told officers he had
worn only the clothing he had on, jeans and a T-shirt, nothing more. Home Depot
shared video surveillance which showed appellant arriving at Home Depot in a
jacket similar to one the shooter reportedly wore. Officers found the jacket in the
locker of one of appellant’s co-workers. Appellant’s co-worker told police
appellant had asked if he could put his jacket in her locker. Particles of gunshot
residue were later found on the cuff of appellant’s jacket. Appellant was arrested
and taken to jail. The next day, appellant was charged with the capital murder of
complainant.


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         At trial, complainant’s girlfriend Melissa testified that before the shooting,
the only individuals in the apartment were herself, her daughter, complainant, and
his cousin. Complainant’s girlfriend was folding clothes when she heard loud
banging on the apartment’s front door. A man “busted” the door open, came in,
and shot complainant. After complainant fell, the man “kept shooting and didn’t
stop.” According to complainant’s girlfriend, the shooter was wearing a black
hoodie and a black T-shirt or bandana as a mask on his face, but the mask fell
down so she was able to see his face. She later identified appellant in a photo array
as the shooter.

         Complainant’s cousin Jose testified that before appellant came in the
apartment, appellant was banging on the door and shouting. Although Jose could
not make out what appellant was shouting, he recognized his voice and told
complainant that it was appellant banging on the door. When the door flew open,
Jose saw appellant run in wearing all black with a bandana over his mouth.
Although his face was covered with a mask, Jose recognized appellant’s
movements. Jose ran to the restroom and hid. From the restroom, he heard shots
fired.

         Complainant’s friend Dana1 also testified. Early on the day of the shooting,
Dana had been spending time with appellant, driving him around. After she took
him home, appellant sent Dana a Facebook message asking her to return to his
apartment complex because he left his phone in her car. The Facebook exchange
between appellant and Dana was admitted as an exhibit. Appellant offered Dana
gas money and told her to hurry. Dana returned to appellant’s apartment complex.
According to Dana, appellant looked for his phone but was unable to find it. He

         1
       Because “Dana” was a minor at the time the offense was committed, we use a
pseudonym rather than her actual name. See Tex. R. App. P. 9.10(a)(3).

                                            3
told her to wait because he wanted her to drive him to work. Appellant walked
back to the apartments. While she was waiting, Dana heard gunshots.

      Afterwards, appellant walked quickly back to her car. Dana testified that
appellant was walking, “as if [he was] trying to get somewhere real quick but not
make it obvious that [he was] running.” Appellant was carrying a bag, and he had a
gun. When he got into Dana’s car, he told her to drive and that he needed to get rid
of his gun. He undressed in the car and put different clothes on. On the way to
appellant’s work, appellant told Dana to stop on the side of the highway so he
could throw out the bag containing his gun and clothes. When Dana slowed the car
down, appellant opened the car door and threw the bag. Appellant told Dana to
“keep [her] mouth shut” and not tell “even her mother or closest friends” about
what had happened. Dana then took appellant to work at the Home Depot
distribution center.

      Dana was 16 years old when these events took place. Dana testified that she
was scared: “He was in my car with a gun. I was going to do everything he told me
to do.” Dana denied knowing “what [appellant] was going to do before he did it.”
Dana testified that had she known, she “would not have approved of it. [She]
would have told him to stop ‘cause that’s not right.” She later spoke to police and
showed police where appellant had thrown the bag.

      Officers testified that they retrieved the bag from a marshy area under a
highway bridge and found several items inside, including a Glock semi-automatic
pistol, a magazine, an ammunition box containing bullets, a bandana, and blue
latex gloves. A firearms examiner from the Harris County Institute of Forensic
Sciences firearms laboratory testified that she was able to match some of the fired
bullets and casings collected at the apartment with the firearm officers recovered
under the highway bridge.

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      Detective Crowell, who had specialized training in digital forensics
including cell phone technology, testified that he recovered State’s Exhibits 130–
135 from appellant’s cell phone. Exhibit 130 is a picture of appellant holding a
firearm similar to the firearm recovered under the highway bridge. Exhibit 131 is a
picture of two firearms similar to the firearm recovered under the highway bridge
along with some bullets. Exhibit 134 is a picture of a similar firearm with an
extended magazine. Exhibit 132 is a picture of appellant wearing a jacket similar to
the jacket recovered at Home Depot. Exhibits 133 and 135 are pictures of appellant
wearing a bandana on his face as a mask. Crowell testified that Exhibit 133 was
created on December 4, 2013, and Exhibit 135 was created on January 28, 2014.
Crowell was not able to recover metadata on Exhibits 130, 131, 132, or 134.

      After the State closed, appellant’s trial counsel called Detective Zucha who
had interviewed complainant’s girlfriend Melissa. In response to questioning by
appellant’s trial counsel, Zucha testified that in his notes from the interview, he had
written that Melissa could not identify the shooter, but that he resembled appellant.
Zucha testified that at one point Melissa had referred to appellant as Alvarez rather
than Alvaro. Zucha also agreed that Melissa said “[m]aybe if she had seen him
she’d be able to identify him.”

                                      ANALYSIS

A.    Accomplice-witness instruction

      In his first issue, appellant complains that the trial court erred by overruling
his objection to the omission in the jury charge of an accomplice-as-a-matter-of-
law instruction with respect to Dana. A witness can be an accomplice as a matter
of fact or as a matter of law. Ash v. State, 533 S.W.3d 878, 884 (Tex. Crim. App.
2017). Whether a defendant is entitled to an accomplice-witness instruction
depends upon the evidence presented at trial. Id. If the record contains evidence
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that a witness may have been an accomplice, the issue should be submitted to the
jury to decide whether the witness was an accomplice as a matter of fact. Id.
Conversely, a witness is an accomplice as a matter of law, and the jury should be
so instructed, if (1) the witness has been charged with the same offense as the
defendant or a lesser-included offense, (2) the witness has been charged with the
same offense as the defendant or a lesser-included offense and the State dismisses
such charges against the witness in exchange for the witness’s testimony against
the defendant, or (3) when the evidence is uncontradicted or so one-sided that a
reasonable juror could not disagree with the determination that the witness is an
accomplice. Id. at 886.

      In this case, the trial court instructed the jury to decide whether Dana was an
accomplice as a matter of fact. Appellant argues the trial court should have
instructed the jury that Dana was an accomplice as a matter of law because no
reasonable juror could conclude she was not an accomplice. Dana was never
charged with the same offense as appellant or a lesser-included offense. Thus, the
only consideration relevant to our analysis of this issue is whether the evidence
was so one-sided that any rational juror would have concluded Dana was an
accomplice as a matter of law. See id.

      In support of his argument, appellant asserts Dana participated after the
commission of the crime by driving appellant away from the alleged crime scene.
Appellant also contends Dana knew that a crime had been committed and
participated in disposing of the weapon and other items. Appellant emphasizes that
although Dana was not charged with any crime relating to appellant’s offense, the
police told her that she could be charged with the crime.

      The record shows the accomplice evidence in this case was not nearly so
one-sided that a reasonable juror could not disagree with the determination that

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Dana was an accomplice. Dana denied knowing “what [appellant] was going to do
before he did it.” Dana testified that had she known, she “would not have approved
of it. [She] would have told him to stop ‘cause that’s not right.’” The Facebook
message exchange between appellant and Dana corroborates this testimony.
Appellant asked Dana to return to his apartment because he claimed he left his
phone in her car. See Mize v. State, 915 S.W.2d 891, 895 (Tex. App.—Houston
[1st Dist.] 1995, pet. ref’d) (evidence that showed witness drove defendant to and
from scene of alleged robbery, but also that she did not help plan robbery or act
with intent to assist defendant, did not establish that witness was accomplice as
matter of law). The record also shows evidence that Dana acted under duress. Dana
testified that she was scared when appellant got in her car with a gun: “He was in
my car with a gun. I was going to do everything he told me to do.” See George E.
Dix & John M. Schmolesky, 43A Texas Practice Series: Criminal Practice and
Procedure § 51:88 (3d ed. 2016) (“If in addition to evidence of participation there
is evidence that this participation . . . was under duress, a factual question is
presented”).

      Because Dana was not charged with the same offense as appellant or a
lesser-included offense, and the evidence was conflicting, the trial court did not err
by including an accomplice-as-a-matter-of-fact instruction in the charge, rather
than an accomplice-as-a-matter-of-law instruction. See Ash, 533 S.W.3d at 885.
We overrule appellant’s first issue.

B.    Admission of photographic evidence

      Appellant contends, in his second and third issues, that the trial court erred
in admitting into evidence over objection Exhibits 130–135, photographs from
appellant’s cell phone. Appellant argues the photographs are irrelevant and
prejudicial. We review a trial court’s decision to admit evidence under an abuse-of-

                                          7
discretion standard. Henley v. State, 493 S.W.3d 77, 82–83 (Tex. Crim. App.
2016). To conclude the trial court abused its discretion in admitting evidence, we
must find that the ruling was so clearly wrong as to lie “outside the zone of
reasonable disagreement.” Id. at 83.

      1.     Relevance

      Under Texas Rule of Evidence 401, evidence is relevant if: “(a) it has any
tendency to make a fact more or less probable than it would be without the
evidence; and (b) the fact is of consequence in determining the action.” Tex. R.
Evid. 401. A court will deem evidence relevant if the evidence is material to and
probative of a matter properly provable in the case. Henley, 493 S.W.3d at 83–84.
Evidence is material if it addresses any fact of consequence. Id. at 83. It is
probative if it tends to make the existence of the fact more or less probable than it
would be without the evidence. Id. Appellant asserts that the photographs, Exhibits
130–135, are irrelevant because the dates of some of the photographs are unknown
and the known dates of two photographs are a year or more before the date of the
offense.

      It is not wholly clear from the record or appellant’s brief whether this
argument is or was an argument that the photographs are irrelevant, or that the
photographs were not authentic, or both. At trial, appellant argued, “There’s no
way—there’s no showing of when these photographs were taken. One was taken
over a year before. The other was taken nine months before the offense. Neither of
those are relevant other than to show the face of that.” In his opening brief, under a
heading stating the trial court erred because the photos were not relevant, appellant
asserts that the predicate for the introduction of a photograph requires proof of
“accuracy as a correct representation of the subject at a given time.” To the extent
appellant preserved and is making an argument that the photographs were not

                                          8
authentic, we reject this argument. In support of his argument that “a given time”
must be provided with respect to the photographs, appellant cites Farrell v. State,
837 S.W.2d 395 (Tex. App.—Dallas 1992), aff’d, 864 S.W.2d 501 (Tex. Crim.
App. 1993). In Farrell, the Court of Criminal Appeals analyzed the authentication
of videotapes using pre-rules predicate requirements. Id. at 400. The application of
pre-rules predicate requirements was rejected by the Court of Criminal Appeals in
Angleton v. State, 971 S.W.2d 65, 69 (Tex. Crim. App. 1998). Authentication
requirements are now governed solely by Texas Rule of Evidence 901. Id. at 67,
69.

      Appellant also argues the photos are irrelevant because the pictures do not
depict the firearm or the bandana that was used in the crime. Appellant cites
Downs v. State, 65 So. 3d 594, 596 (Fla. 4th Dist. Ct. App. 2011), to argue that “[a]
gun different than the one used in a crime is not relevant to prove that the crime
occurred.” Appellant asserts the State offered no evidence connecting the
photographs to the crime. The photographs are relevant because they link appellant
to the items discovered under the highway bridge and tend to make a material
fact—appellant’s identity as the shooter—more probable than it would be without
the evidence. See Jones v. State, 531 S.W.3d 309, 323 (Tex. App.—Houston [14th
Dist.] 2017, pet. ref’d) (rejecting defendant’s argument that photograph was
irrelevant because date of photograph was unknown when investigator used
photograph to determine identity of individuals involved in shooting). Exhibits
130, 131, and 134 show appellant had access to firearms similar, if not identical, to
the murder weapon. Exhibit 132 shows appellant had worn a jacket similar, if not
identical, to the jacket described by witnesses to the shooting and recovered by
police at Home Depot. Exhibits 133 and 135 show appellant wore a bandana
similar, if not identical, to the bandana described by witnesses to the shooting and


                                         9
recovered by police under the highway bridge. These items were strongly
probative of appellant’s identity as the shooter. Moreover, Downs is
distinguishable.2

       In Downs, there was testimony by a detective that the firearm evidence at
issue “had nothing to do” with the case. 65 So. 3d at 596. The detective explained,
“[i]t was not an automatic, the type of gun used in the shooting.” Id. In this case,
no affirmative evidence was presented to show that the firearm used in the crime
did not appear in the pictures. Here, unlike in Downs, the guns pictured in the
photographs showed firearms similar, if not identical, to the murder weapon.

       Because the photographs are relevant, we overrule appellant’s second issue.

       2.     Rule 403 analysis

       Having determined the photographs, Exhibits 130–135, were relevant, we
evaluate whether the probative value of the photographs substantially outweighed
the danger of unfair prejudice under Texas Rule of Evidence 403. Appellant
contends the trial court erred in admitting the evidence because any probative
value the photographs had was outweighed by a danger of unfair prejudice.

       Although relevant, evidence may be excluded “if its probative value is
substantially outweighed by the danger of one or more of the following: unfair
prejudice, confusing the issues, misleading the jury, undue delay, or needlessly
presenting cumulative evidence.” Tex. R. Evid. 403. The admissibility of a
photograph rests within the trial court’s sound discretion and is based on a
determination of whether the exhibit serves a proper purpose in assisting the
factfinder. Ramirez v. State, 815 S.W.2d 636, 646–47 (Tex. Crim. App. 1991). An

       2
          “Cases from other jurisdictions construing rules of evidence that are identical or
substantially the same as our own serve as persuasive authority in the construction of our own
rules of evidence.” Saavedra v. State, 297 S.W.3d 342, 348–49 (Tex. Crim. App. 2009).

                                             10
abuse of discretion occurs when the evidence has little probative value and great
inflammatory potential. Id. at 647. The trial court is usually in the best position to
determine whether evidence should be admitted or excluded. Winegarner v. State,
235 S.W.3d 787, 790 (Tex. Crim. App. 2007). The balance between probative
value and the potential for prejudice “is always slanted toward admission, not
exclusion, of otherwise relevant evidence.” De La Paz v. State, 279 S.W.3d 336,
343 (Tex. Crim. App. 2009).

      A Rule 403 analysis must balance (1) the inherent probative force of the
proffered item of evidence along with (2) the proponent’s need for that evidence,
against (3) any tendency of the evidence to suggest decision on an improper basis,
(4) any tendency of the evidence to confuse or distract the jury from the main
issues, (5) any tendency of the evidence to be given undue weight by a jury that
has not been equipped to evaluate the probative force of the evidence, and (6) the
likelihood that presentation of the evidence will consume an inordinate amount of
time or merely repeat evidence already admitted. Gigliobianco v. State, 210
S.W.3d 637, 641–42 (Tex. Crim. App. 2006).

      All evidence tends to be prejudicial to one party or the other. Hernandez v.
State, 390 S.W.3d 310, 324 (Tex. Crim. App. 2012). Only “unfair” prejudice
provides the basis for exclusion of relevant evidence. Montgomery v. State, 810
S.W.2d 372, 378 (Tex. Crim. App. 1990); Webb v. State, 995 S.W.2d 295, 301
(Tex. App.—Houston [14th Dist.] 1999). Prejudice is “unfair” if it has an “undue
tendency to suggest decision on an improper basis, commonly, though not
necessarily, an emotional one.” Montgomery, 810 S.W.2d at 378 (quoting
Advisory Committee’s note to Fed. R. Evid. 403).

      In support of his argument that the photographs are unfairly prejudicial,
appellant reiterates his argument that the photographs were not relevant and argues

                                         11
that “these photos could easily tempt the jury into finding [appellant] guilty on
different grounds, instead of focusing only on the evidence proving the offense
occurred.”

      We conclude that the Rule 403 factors overall weigh more strongly in favor
of admission. See Hedrick v. State, 473 S.W.3d 824, 831 (Tex. App.—Houston
[14th Dist.] 2015, no pet.). The trial court reasonably could have found the inherent
probative force of the evidence was strong. The photographs linked appellant to
descriptions of the shooter given by Melissa and Jose. The photographs also linked
appellant to items found in the bag of evidence under the highway bridge. While
the photographs arguably were cumulative of the testimony of complainant’s
girlfriend and cousin identifying appellant as the shooter, appellant cast doubt on
these identifications through cross-examination and closing argument. The trial
court reasonably could have concluded that the State needed the photographs to
persuade the jury that appellant was the shooter.

      The presentation of the photographs did not consume an inordinate amount
of time during the trial. The photographs were not likely to confuse the jury.
Evidence was presented regarding how the State obtained the photographs. There
was no dispute that the photographs came from appellant’s cell phone and were
created on either an unknown date or a date far in advance of the commission of
the offense. In closing, defense counsel argued there was no link between the
photographs and the complainant’s shooting. See Jones, 531 S.W.3d at 323–24
(concluding jury would not be misled by evidence because jury was aware of
circumstances surrounding evidence).

      In addition, the photographs are not so inflammatory that they would suggest
a verdict on an improper basis. The photographs of appellant in a bandana or a
jacket (Exhibits 132, 133, and 135) are not themselves so prejudicial that they

                                         12
would have “tempt[ed] the jury” to find appellant guilty on improper grounds. See
Lopez v. State, 478 S.W.3d 936, 947 (Tex. App.—Houston [14th Dist.] 2015, pet.
ref’d) (“[T]he presence of a blue bandana alone is not sufficiently prejudicial to
outweigh the photograph’s probative value.”). While the photographs including
guns may have been inflammatory, the prejudice resulting from the admission of
those photographs did not substantially outweigh their probative value. The
photographs showing appellant possessed firearms similar or identical to the
murder weapon were strongly probative of appellant’s access to the murder
weapon and identity as the shooter. Consequently, we conclude the trial court’s
decision to admit the photographs was not so clearly wrong as to lie outside the
zone within which reasonable persons might disagree. The trial court did not abuse
its discretion by admitting State’s Exhibits 130–135 into evidence. We overrule
appellant’s third issue.

C.    Motion for new trial

      In his fourth issue, appellant contends the trial court abused its discretion by
denying his motion for new trial because “two witnesses talked to jurors about the
case.” The State responds that appellant waived this issue.

      In his motion for new trial, appellant did not assert he was entitled to a new
trial because of any contact between witness and jurors. The sole grounds listed by
appellant in his written motion for new trial were, “The verdict is otherwise
contrary to the law and the evidence in the case,” and “[t]he interest of justice
requires the granting of a new trial.” There was no hearing on the motion, and
appellant did not otherwise raise contact between witnesses and jurors in the
motion for new trial proceedings.

      Because appellant failed to raise the issue he now asserts on appeal in his
written motion for new trial and because there was no hearing on that motion, the
                                         13
issue is waived. See Tex. R. App. P. 33.1(a); Keeter v. State, 175 S.W.3d 756,
759–60 (Tex. Crim. App. 2005) (“Because of the nature of the appellant’s
complaint on appeal—that the trial court erred in denying his motion for new
trial—he must have raised the [issue] at some point during the motion for new trial
proceedings to preserve the complaint for appellate review”); see also State v.
Zalman, 400 S.W.3d 590, 593–94 (Tex. Crim. App. 2013) (“We have repeatedly
held that . . . the matter of error relied upon for a motion for new trial must be
specifically set forth therein.” (internal quotations omitted)). We overrule
appellant’s fourth issue.

D.    Penal Code section 19.03 and “bootstrapping” argument

      In his fifth and final issue, appellant contends Penal Code section 19.03 is
unconstitutional as applied to him. Specifically, appellant complains that the State
impermissibly attempted to use his murder of complainant in two ways: (1) to
establish the murder requirement for capital murder and (2) to establish the felony
component of the underlying burglary elevating the murder to capital murder.
Appellant contends this type of “bootstrapping” is unconstitutional as it violates his
right to due process.

      Appellant concedes that the Court of Criminal Appeals “has rejected such
arguments in the past.” Indeed, the Court of Criminal Appeals has held in several
cases that a murder occurring after a break-in may serve as both the basis for the
murder charge and the underlying felony required for burglary. See Gardner v.
State, 306 S.W.3d 274, 287 (Tex. Crim. App. 2009) (“In a prosecution for capital
murder based on burglary, the requirement that a felony be intended is satisfied by
the murder of the victim.”); Homan v. State, 19 S.W.3d 847, 848 (Tex. Crim. App.
2000) (reversing court of appeals which held murder of complainant could not be
used to support burglary charge); Matamoros v. State, 901 S.W.2d 470, 474 (Tex.

                                         14
Crim. App. 1995) (holding evidence sufficient to prove burglary component of
capital murder when defendant entered complainant’s home without consent and
killed complainant). The Court of Criminal Appeals also has held that reliance on
“the same act to constitute both an element of the underlying felony (burglary) and
the allegation of murder” does not violate a defendant’s due process rights. See
Fearance v. State, 771 S.W.2d 486, 494 (Tex. Crim. App. 1988) (rejecting
argument that using same act in this manner violated defendant’s right to due
process because it “cut[] against the legislative intent in the capital murder
statute”).

       Appellant nonetheless asserts that “courts are consistently troubled with such
a concept,” citing, without analysis, two dissents to Court of Criminal Appeals
opinions.3 Dissenting opinions have no precedential value. Under stare decisis, this
court is bound to follow the precedent established by the Court of Criminal
Appeals. Gardner v. State, 478 S.W.3d 142, 146 (Tex. App.—Houston [14th Dist.]
2015, pet. ref’d) (citing, among others, State of Texas ex rel. Vance v. Clawson,
465 S.W.2d 164, 168 (Tex. Crim. App. 1971) (“The Court of Criminal Appeals is
the court of last resort in this state in criminal matters. This being so, no other court
of this state has authority to overrule or circumvent its decisions, or disobey its
mandates.”), and Mason v. State, 416 S.W.3d 720, 728 n.10 (Tex. App.—Houston
[14th Dist.] 2013, pet. ref’d) (“When the Court of Criminal Appeals has
deliberately and unequivocally interpreted the law in a criminal matter, we must
adhere to its interpretation under the dictates of vertical stare decisis.”)).

       The precedent established by the Court of Criminal Appeals unequivocally
       3
          Appellant cites Muniz v. State, 851 S.W.2d 238, 264 (Tex. Crim. App. 1993) (Clinton,
J., dissenting), and Fearance, 771 S.W.2d at 514 (Teague, J., dissenting). The appellant in
Homan unsuccessfully relied on the same dissents. See Homan, 19 S.W.3d at 848 & n.3
(“Appellant cites no precedent in support of his argument, although he does rely on past
dissenting opinions from this Court.” (citing the same dissents in a footnote)).

                                             15
holds that a defendant’s murder of a complainant may establish the murder
requirement for capital murder and establish the felony component of the
underlying burglary, elevating the offense to capital murder without violating a
defendant’s right to due process. Consequently, we overrule appellant’s fifth issue.

                                   CONCLUSION

      Having overruled all appellant’s issues, we affirm the trial court’s judgment.




                                       /s/    Charles A. Spain
                                              Justice


Panel consists of Chief Justice Frost and Justices Spain and Poissant.
Do Not Publish — TEX. R. APP. P. 47.2(b).




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