             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS

                                        AP-74,853



                        WILLIAM DARIN IRVAN, Appellant




                                THE STATE OF TEXAS


                                 ON DIRECT APPEAL
          FROM CAUSE NO. 864928 IN THE 180TH DISTRICT COURT
                                   HARRIS COUNTY




            Keasler, J., delivered the opinion of the Court, in which Keller, P.J., and
Meyers, Womack, Johnson, Hervey, and, Cochran, JJ., joined. Price awtfHolcomb, JJ.,
concurred without opinion.

                                      OPINION


       Irvan was convicted of capital murder1 in December 2003. Based on the jury's

answers to the special issues set forth in Texas Code ofCriminal Procedure Article 37.0711,




        Tex. Penal Code § 19.03(a).
                                                                                   IRVAN-2


Sections 3(b) and 3(e),2 the trial court sentenced Irvan to death.3 Direct appeal to this Court

is automatic.4 Irvan raises eighteen points of error. We find each of them to be without

merit. Therefore, we affirm his conviction and sentence.

                                 STATEMENT OF FACTS


       Irvan was indicted for murdering twenty-three-year-old Michelle Shadbolt while in

the course of committing and attempting to commit aggravated sexual assault on or about

February 14, 1987. The evidence at trial showed that, at the time of the offense, Shadbolt

and her two-year-old daughter were living in a house across the street from Irvan's parents'

house. Shadbolt and Irvan had lived across the street from each other for many years, and

Irvan had been friends with Shadbolt's younger brother since early childhood.

       Shadbolt and her husband, Jack, had separated about six weeks before her murder, and

Jack had moved out ofthe house and into his mother's house nearby. Shadbolt's father and

stepmother also lived close by, and on the evening of February 13, 1987, Shadbolt took her

daughter to their house for the night so Shadbolt could go out and play bingo with some

friends. She dropped off her daughter at about 5:15 p.m. and said that she would return to

pick her up at 7:30 the next morning. When Shadbolt failed to arrive at 7:30 a.m. on

February 14th, her stepmother called her house, but no one answered. She then drove to


      2 Unless otherwise indicated, all references to Articles refer to the Texas Code of
Criminal Procedure.

      3 Art. 37.0711, § 3(g).

      4 Art. 37.0711, §30).
                                                                                   IRVAN-3

Shadbolt's house at about 7:45 a.m. When she opened the unlocked front door, she saw

Shadbolt's bloody body lying on the living room floor and ran to a neighbor's house to call

the police.

       Anthony Rossi of the Harris County Sheriffs Department was the lead detective in

the case. Rossi testified that there were no signs of forced entry and that the television was

turned up very loud. There was a large amount ofblood in the foyer, leading him to conclude

that "sometype of scuffle" occurredthere. Shadbolt was lyingon her side on the livingroom

floor, wearing only a blood-stained T-shirt that had been pulled up around her neck. She had

multiple stab wounds and a large neck laceration. Rossi testified that there was a vacuum

cleaner on the floor next to Shadbolt, and its cord, which was "probably ... twisted around

during a struggle," was "somewhat wrapped around her." Also lying on the floor nearby

were a pair of panties, some crumpled newspaper, a trophy, and a large-bladed knife

underneath a pair of shorts. Blood on the trophy led Rossi to believe it was "[p]ossibly used

as a bludgeon instrument." Shadbolt's purse, wallet, and money were in the kitchen, but a

large-bladed knife was missing from the butcher block.

       Rossi testified that he thought that "[o]ne heck of a struggle" took place in the living

room and Shadbolt "fought very hard."         He also testified that he observed "bloody

fingermarks" on Shadbolt's "rear end," which he believed were indicative of someone

"trying to hold her up" in order to "rape her." He further observed blood in and around the

toilet bowl in Shadbolt's bathroom, which he thoughtwas consistentwith someone washing
                                                                                  IRVAN-4

off blood in the toilet.


       Pete F. Schroedter, a fingerprint expert with the Harris County Sheriffs Department,

processed the knife and trophy for fingerprints. He found "smudges . . . lacking any detail

for identificationpurposes" on the knife. He found what appeared to be a portion of a palm

print on the trophy, but it lacked sufficient detail for him to make an identification. Deputy

Randy Schield and the FBI were also unable to identify any fingerprints.

       Medical examiner Dwayne Wolf testified that Shadbolt's death was caused by

"multiple sharp force injuries." She had seventeen stab wounds on her body, some ofwhich

perforated her heart, diaphragm, and liver. She also had a large, horizontal, incised wound

to the front of her neck, and some "superficial cutting wounds" in the neck area, including

a superficial incised wound on the back of her neck. She suffered multiple blunt force

injuries to the top of her head that were consistent with being struck with the base of the

trophy. She had several bruises on her face, and abrasions on her face, knees, and shoulder

that were consistent with "carpetburn." Sperm was detectedon swabstaken from hervagina

and rectum, although there was no visible trauma to these areas.

       Shadbolt's brother, Michael Masters, testified that Irvan was outside Shadbolt's house

when he arrived there on the morning of February 14th, shortly after Shadbolt's body was

discovered. Irvan attempted to comfort Masters both at the scene and later at Shadbolt's

funeral, where Irvan served as a pallbearer.

       Police questioned Shadbolt's friends who were playing bingo with her the night of
                                                                                 IRVAN-5

February 13th and determined that Shadbolt left to go home at around 2:50 a.m. About a

week after Shadbolt's murder, Rossi met with Shadbolt's husband Jack, who denied

involvement and provided saliva, hair, and blood samples. Rossi considered Jack to be the

prime suspect because he and Shadbolt were separated at the time of her death, but Rossi did

not have evidence to charge him with capital murder.

       Rossi transferred to another division a few years later, and Detective Marcel Dionn

began working on the case. Dionn asked Shadbolt's mother, Jacqueline Barrett, if she could

provide the names ofany other persons who might have been involved in Shadbolt's murder.

Barrett named Irvan and another individual, Timothy Darden. Dionn interviewed Irvan at

the police station on May 17, 1989. Irvan made a statement wherein he said that he had

known Shadbolt for about fifteenyears and they"werejust friends and it was never anytype

of other relationship." He stated that, a few days before Shadbolt's murder, he had returned

to his parents' house after working an offshore job. He had a ten-minute conversation with

Shadbolt in front of her house a day or two before the murder, wherein she talked about "her

kid" and "never said anything about her and Jack." After they talked, he went back to his

parents' house and "didn't see [Shadbolt] alive again." On the night of the murder, he was

"at home with [his] mother and didn't go anywhere." His mother woke him up the next

morning and told him "something was wrong over at [Shadbolt's]." When he went outside,

Masters walked up to him, told him Shadbolt was dead, and started crying.

      Shadbolt's case remained unsolved for years, until Detective Roger Wedgeworth with
                                                                                 IRVAN-6

the "cold case squad" ofthe Harris County Sheriff s Department began investigating it again

in 1998. In November 1998, Wedgeworth sent evidence to the Orchid Cellmark (formerly

GeneScreen) laboratory for DNA testing and comparison to Jack.            Orchid Cellmark

determined that Jack was excluded as a contributor of the DNA on Shadbolt's vaginal and

rectal swabs. Wedgeworth's partner, Harry Fikaris, then asked Barrett if she could think of

anyone else who might have murdered Shadbolt. Barrett again named Irvan and Darden.

She also told the detectives about an incident that occurred when Irvan once spent the night

with Masters at their house. Shadbolt was sixteen and Irvan was thirteen at the time. After


everyone had gone to bed, Barrett heard Shadbolt scream, "Stop it. Leave me alone." Barrett

went to Shadbolt's room, where she saw Shadbolt sitting in bed with the covers "up against

her as if she was protecting herself." Irvan was sitting on the floor acting "real coy."

Shadbolt acted "real scared" and told Barrett that Irvan touched her. Barrett brought

Shadbolt into her room and told Irvan to either stay in Masters' room or to go home. After

that incident, Irvan never spent the night at their house again.

       At some point after DNA testing excluded Jack, Masters called Irvan and asked him

if he knew or heard of anyone who might have killed Shadbolt. Masters testified that Irvan

"broke down and cried and said he didn't have anything to do with it," even though Masters

did not accuse Irvan of anything.

       Irvan and Darden both consented to give saliva samples to Wedgeworth and Fikaris

in early 2000. The samples were sent to Orchid Cellmark for DNA testing. William J.
                                                                                   IRVAN - 7

Watson of Orchid Cellmark testified that Irvan's DNA profile was consistent with the DNA

profile on Shadbolt's rectal swab. A "probable pubic hair" taken from Shadbolt's fingernail

scrapings was compared to Shadbolt, Irvan, and Darden, but did not match any of them.

Darden was excluded as a contributor to all pieces of evidence where a DNA profile could

be obtained.


       Katherine Elizabeth Long with Orchid Cellmark performed additional DNA testing

a few weeks prior to trial. Long concluded that Irvan's DNA profile was consistent with the

DNA profile on Shadbolt's rectal and vaginal swab sticks.

       Irvan's former girlfriend Tamara Llamas testified that she and Irvan spent one night

alone on the beach in Galveston in February or March 1987. As they were drinking alcohol

and talking, Irvan told Llamas he had raped and killed Shadbolt. He explained that he was

sitting and drinking in his driveway when he saw Shadbolt come home, then he went over

to her house to try to have sex with her. When she refused, he "got carried away" and

stabbed her. He said Shadbolt "fought real hard" and scratched him, and there was blood

everywhere. He said he took some jewelry from Shadbolt's home and returned to his house

through his bedroom window.

       Llamas testified that she did not believe Irvan and "just thought he was bragging," and

she told only her friend Rhonda Reiner what he said a few months later. When Irvan was

charged with capital murder, Reiner persuaded Llamas to tell police about Irvan's admission.

Llamas acknowledged that she was a convicted drug dealer and murderer serving four life
                                                                                 IRVAN-8

sentences in a federal prison in Fort Worth, but testified that she received no promises in

exchange for her trial testimony. She testified she was initially reluctant to come forward,

but she changed her mind because she did not want Shadbolt's daughter "to grow up thinking

that her father had done it."


       Irvan's ex-wife Shanna Stryjek testified that Irvan "would go into a rage" when she

declined to have sex with him and would hit and break things and call her degrading names

like "bitch," "whore," "slut," and "cunt." Stryjek testified that she refused when Irvan

attempted to have anal sex with her a few times, and she once had to "kind of force him to

stop." She testified that they saw Shadbolt's daughter when she was about four or five years

old, and Irvan refused to look at the child. Stryjek once asked Irvan about Shadbolt, and

Irvan stated "she was a bitch, that she was snotty and she thought she was better than

everybody else." Stryjek asked Irvan if he ever dated her and he said no and that he "hated

her." He told Stryjek that the night Shadbolt died he was out with his friend "George" and

returned home between 1:00 and 2:00 a.m. He told Stryjek he did not know anything

happened to Shadbolt until his mother came into his room in the morning and said police

were putting yellow tape around her house.

       Defense witness Daniel Rinehart, who worked on the cold case squad with

Wedgeworth and Fikaris, testified about his additional fingerprint processing of evidence

using the "amido black dye method." Rinehart testified that he found a "small area with

ridge detail" on the trophy. He testified that the print "was not suitable to include and
                                                                                   IRVAN-9

identify an individual," but it "was suitable enough to eliminate suspects that the prints were

compared to." Rinehart was able to eliminate Jack and Irvan. He was not able to eliminate

Darden, but he was not able to positively identify him as the person who left the print.

       Defense witnesses Connie Summers, Darlene "Dede" Hughes, and Marylou Brady all

testified that Llamas had a bad reputation for truthfulness and was not worthy ofbelief under

oath. Hughes also testified that she saw Irvan and Shadbolt together in a convenience store

at some point in January or February 1987, before Shadbolt's death. The defense then re

called Wedgeworth, who testified that a deputy used a chemical process to look for blood

under the surface ofthe paint around Irvan's bedroom window. A small "droplet sized" spot

was detected, so they cut out the portion where the spot was located and sent it to Orchid

Cellmark for DNA analysis.       Orchid Cellmark reported that Irvan and Shadbolt were

excluded as contributors.


                            SUFFICIENCY OF THE EVIDENCE


       In points of error one, two, and three, Irvan argues that the evidence is factually

insufficient to support his conviction for capital murder. In a factual sufficiency review, we

view all of the evidence in a neutral light, and we will set the verdict aside only if the

evidence is so weak that the verdict is clearly wrong and manifestly unjust, or the contrary

evidence is so strong that the standard of proof beyond a reasonable doubt could not have

been met.5 A clearly wrong and unjust verdict occurs where thejury's finding is"manifestly


         Zuniga v. State, 144 S.W.3d 477, 481 (Tex. Crim. App. 2004).
                                                                                  IRVAN-10

unjust," "shocks the conscience," or "clearly demonstrates bias."6

       Irvan acknowledges that "semen recovered from [Shadbolt] matched [Irvan's] DNA

profile." He argues that this "supports a conclusion that [Irvan] and [Shadbolt] had engaged

in sexual intercourse," but does not "support an inference that [Irvan] had sexually assaulted

[Shadbolt] nor that he had caused her death." Irvan asserts that medical examiner Dwayne

Wolfs testimony that there was no evidence of trauma to Shadbolt's vagina or rectum

supports a finding of consensual sex. However, trauma to the genitalia is not a required

prerequisite for proving sexual assault. Wolf testified that the absence of such trauma

"doesn't mean anything," and "sometimes you see injuries; sometimes you don't."

       Irvan argues that "Wolf agreed that [Shadbolt] could have engaged in sexual

intercourse the day before her death." While Wolf agreed with defense counsel that

"consensual sex may have taken place" and that the death "may have taken place later," he

also testified that "numerous sperm were present" in both the vagina and rectum, and because

"[s]perm degrades over a period of time, particularly in the rectal canal ... it ha[d] to be
                                                                                                  /
relatively fresh." Wolfexplained that "[s]perm are more stable in the vaginal canal than they

are in the rectum" because "there is more bacteria in the rectal vault." Wolf agreed it was

"probably true" when defense counsel suggested that sperm could remain in the vagina up

to seventy-two hours, but he testified it could probably not remain in the rectum that long and

still be classified as "numerous spermatozoa present."



       6 Santellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1997).
                                                                                  IRVAN-11

       Irvan also argues that Wolf and Detective Rossi gave conflicting testimony regarding

blood evidence. Rossi testified there were "bloody fingermarks" on Shadbolt's "rear end,"

which he believed were indicative of someone "trying to hold her up" in order to "rape her."

Wolf testified it was "a pattern of a hip laying in a pool of blood, so that you have a rim of

blood surrounding an area that was pressed against the floor in this case." But Irvan fails to

acknowledge that Rossi and Wolf were referring to two different photographs of Shadbolt

when they made these statements. Wolf referred to State's Exhibit 50, a photograph of

Shadbolt's body after it was received by the medical examiner. The photograph, which is

neither close-up nor particularly detailed, is a side view of Shadbolt lying on her back on the

autopsy table. In contrast, Rossi referred to State's Exhibit 34, a photograph of Shadbolt's

body as it was found at the crime scene, which is a back view of her body from her shoulders

to her "rear end." The jury was able to view these photographs and to take the testimony of

Wolf and Rossi into account when viewing them.

       Irvan points out that he was excluded as the person who left the hair under Shadbolt's

fingernail and the fingerprint on the trophy. However, both Wedgeworth and Watson

testified that the hair could have come from a source other than Shadbolt's attacker.


Schroedter testified that an excessive amount of blood could be an impediment to leaving a

print, and that the available methods for processing bloody fingerprints were somewhat

limited in 1987. Rinehart was able to eliminate Irvan as the person who left the "small area

with ridge detail" on the trophy, but he also testified there were other prints that were
                                                                                     IRVAN-12

unidentifiable.


       Finally, Irvan alleges that "the forensic investigation in this case was incomplete and

unreliable."   He claims that the police failed to perform DNA testing or fingerprint

processing on several pieces ofevidence. Irvan's speculation regarding further investigation

does not establish the evidence actually introduced at trial was insufficient to prove his guilt.

The evidence supporting the verdict was not so weak as to be clearly wrong and manifestly

unjust, nor was the contrary evidence so strong that the standard of proof beyond a

reasonable doubt could not have been met. Points of error one, two, and three are overruled.

                   CONFIDENTIAL COMMUNICATION PRIVILEGE


       In points of error four, five, and six, Irvan complains that the trial judge improperly

denied his "invocation of the spousal communication privilege" in violation of Rule 504 of

the Texas Rules of Evidence. The spousal privilege rule has two parts, the first part deals

with communications to the spouse which were intended to be kept private, and the second

part is a privilege for the spouse not to be called as a witnessat all.7 Irvan alleges a violation

of Rule 504(a), which provides in pertinent part:

       (a) Confidential communication privilege.

              (1) Definition. A communication is confidential if it is made privately
       by any person to the person's spouse and it is not intended for disclosure to any
       other person.

              (2) Rule ofprivilege. A person, whether or not a party, or the guardian
       or representative of an incompetent or deceased person, has a privilege during


       7 Weaver v. State, 855 S.W.2d 116, 119-20 (Tex. App.-Houston [14th Dist.] 1993).
                                                                                 IRVAN-13

       their marriage and afterwards to refuse to disclose and to prevent another from
       disclosing a confidential communication made to the person's spouse while
       they were married.

              (3) Who may claim the privilege. The confidential communication
       privilege may be claimed by the person or the person's guardian or
       representative, or by the spouse on the person's behalf. The authority of the
       spouse to do so is presumed.

Irvan also alleges that the trial judge violated his rights under the Fourth, Fifth, and

Fourteenth Amendments to the United States Constitution, but he did not object on a

constitutional basis at trial.8

       Before trial, Irvan filed a motion entitled, "Defendant's Notice of Intention to Invoke

Confidential Communication Privilege Between Husband and Wife Pursuant to Texas Rule

of Evidence 504(a)." There was a hearing on the motion outside the presence of the jury at

trial. Irvan testified at the hearing that he was married to Shanna Stryjek from December 4,

1987 to September 9, 1995, that he did not intend to disclose to anyone the private

conversations they had during their marriage, and that he wanted to exercise his privilege to

prevent Stryjek from disclosing the confidential communications he made to her during their

marriage. The trial judge overruled Irvan's motion and granted a running objection to

Stryjek's testimony.

       Irvan specifically complains that Stryjek was improperly permitted to testify that,

while they were married, Irvan: (1) called her degrading names like "bitch," "slut," "whore,"

and "cunt"; (2) told her Shadbolt "was a bitch, that she was snotty and she thought she was


         TEX. R.APP. P. 33.1.
                                                                                 IRVAN-14

better than everybody else" and he "hated her"; and, (3) told her he "was really out with [his

friend] George" and "got home about 1:00,1:30,2:00" on the night Shadbolt was murdered,

although "he told the police that he was at home all night with his mother." Stryjek testified

that Irvan called her degrading names when she refused to have sex with him and that they

were alone when he divulged his feelings about Shadbolt and his whereabouts on the night

of her murder. Irvan testified he did not intend to disclose his private communications with

Stryjek while they were married.

       Irvan's statements to Stryjek concerning his feelings about Shadbolt and his

whereabouts on the night of Shadbolt's murder were privileged under Rule 504(a), and the

trial judge erred in permitting Stryjek to testify about these confidential communications.

Moreover,we assumewithout decidingthat the trialjudge erred in allowing Stryjekto testify

about the degrading names Irvan called her when she refused to have sex with him because

the statements were privileged under Rule 504(a). We now consider whether Irvan was

harmed by the admission of Stryjek's testimony. Texas Rule ofAppellate Procedure 44.2(b)

provides that any non-constitutional error that does not affect substantial rights must be

disregarded. A substantial right is affected when the error had a substantial and injurious

effect or influence in determining the jury's verdict.9 In assessing the likelihood that the

jury's decision was adversely affected by the error, we consider everything in the record,

including any testimony or physical evidence admitted for the jury's consideration, the nature



         Kingv. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997).
                                                                                IRVAN-15

ofthe evidence supporting the verdict, and the character ofthe alleged error and how it might

be considered in connection withotherevidence in the case.10 Wemayalsoconsider thejury

instructions, the State's theory, any defensive theories, closing arguments, voir dire, and

whether the State emphasized the error.11

       The most compelling evidence against Irvan was his admission to Llamas and the

physical evidence showing his DNA profile matched sperm recovered from Shadbolt's body.

Other significant evidence consisted of Barrett's testimony regarding Irvan's unwelcome

intrusion into Shadbolt's room several years before the murder and Masters's testimony

regarding Irvan's reaction when Masters asked him about the murder years later.

       The State argued at closing that Irvan went over to Shadbolt's house because he

wanted to have sex with her and went into a "sadistic sex rage" when she "[tjurned him

down." The State mentioned Irvan's comment that Shadbolt was a "snotty bitch" and his

habit of "calling [Stryjek] every name in the book" when Stryjek refused to have sex with

him. However, this was not the only evidence in support of the State's "sadistic sex rage"

theory. Llamas testified that Irvan told her he went over to Shadbolt's house to try to have

sex with her, and he "got carried away" and stabbed her when she refused. Further,

admissible testimony from Stryjek revealed that Irvan would "go into a rage" and "start




       10 Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002).

       11 Id.
                                                                                IRVAN-16

hitting things" and "breaking things" when she refused to have sex with him.12

       Irvan's statement that he "was really out with [his friend] George" and "got home

about 1:00, 1:30, 2:00" did not have much significance when viewed in light of all of the

evidence. Irvan told police he was "at home with [his] mother and didn't go anywhere," and

he told Llamas that he was sitting outside and drinking in his driveway when Shadbolt came

home. Shadbolt's friends told police that she left to go home at around 2:50 a.m., and

Detective Rossi theorized she was murdered sometime after 3:00 a.m. Even if Irvan had


been out with "George" until 2:00 a.m., he still would have been "at home" in time to commit

the crime.   Although Irvan's statement to Stryjek showed that he lied to police, the

discrepancies between his statement to police and his admission to Llamas also served to

prove the same point.

       The admission of Stryjek's testimony did not affect Irvan's substantial rights.13 The

error did not have a substantial and injurious effect or influence in determining the jury's

verdict.14 Points of error four, five, and six are overruled.

                                    CONFRONTATION


       In points of error seven through eleven, Irvan argues that "the trial court committed


       12 See Weaver, 855 S.W.2d at 121 (holding that the marital communication
privilege of Rule 504(a) applies to utterances and not to acts); see also Carter v. State,
550 S.W.2d 282, 286 (Tex. Crim. App. 1977), overruled on other grounds by Shipman v.
State, 604 S.W.2d 182, 185 (Tex. Crim. App. 1980).

       13 TEX. R. APP. P. 44.2(b).

       14 tf/ng, 953 S.W.2d at 271.
                                                                                 IRVAN-17

constitutional error by not allowing [his] counsel to confront and cross-examine Tamara

Llamas" regarding: (1) "her full criminal history"; (2) "her customary practices and habits

of employing juveniles in interstate trafficking and distribution of marijuana"; (3) "her

customary practices and habits of employing minors to transport weapons across state lines

in furtherance ofher criminal activities"; (4) "her customary practices and habits of making

false criminal accusations against others"; and, (5) "her customary practices and habits of

hiring others to kill witnesses against her in pending criminal prosecutions."          Irvan

specifically argues that the trial judge violated his rights under the Sixth and Fourteenth

Amendments to the United States Constitution and Article I, Section 10 of the Texas

Constitution.


       The State called Llamas as a witness and questioned her regarding her criminal

history. Llamas acknowledged she was presently serving four concurrent life sentences in

federal prison for conspiracy to distribute and possess with intent to distribute marijuana,

interstate travel with intent to commit murder for hire, use of a firearm during and relating

to a drug-crime death, and tampering with a witness by killing. She testified that she pleaded

guilty to all four federal offenses. She testified that she had a previous Maryland conviction

for misdemeanor theft and two previous Texas convictions for unauthorized use of a motor

vehicle, one of which was a misdemeanor and one of which was a felony. She further

testified that she had a probation revocation in Texas.

       When defense counsel questioned her, Llamas again acknowledgedshe pleaded guilty
                                                                                      IRVAN-18

to four federal offenses. Defense counsel attempted to ask her if she was actually guilty of

the federal offenses and ifthe federal government dismissed any other cases as a result ofher

federal plea bargain. The State objected to this as improper impeachment, and the trial judge

sustained the objection. Defense counsel argued outside the presence of the jury that he

should be permitted under Texas Rules of Evidence 405(b) and 406 to ask Llamas about

specific instances of conduct and her "character trait" of attempting to manipulate the

criminal justice system. Under Texas Rule of Evidence 608(b), the trial judge ruled that

defense counsel could not ask Llamas about specific instances of conduct. Defense counsel

later made a bill ofexceptions listing the "information that should have been allowed in front

ofthe jury," including the specific details ofLlamas' federal offenses, the other federal cases

that were dismissed as a result ofher federal plea bargain, the fact that she filed false charges

against two other people, and her attempt to hire a hit man to kill her own sister.

       Irvan's argument at trial does not comport with the issue he now raises on appeal. He

failed to argue at trial that the exclusion of the evidence at issue violated his right to confront

and cross-examine witnesses under the federal or state constitutions.           Because his trial


objection is not the issue raised on appeal, Irvan preserved nothing for our review.15 Points

of error seven through eleven are overruled.

                   RIGHT TO PRESENT A MEANINGFUL DEFENSE


       In point oferror twelve, Irvan argues that the trial judge violated his due process right



       15 TEX. R. APP. P. 33.1.
                                                                                 IRVAN-19

to present a meaningful defense "by not allowing [Irvan's] counsel to present evidence that,

shortly before her death, [Shadbolt] had instructed Dede Hughes, a witness, not to tell anyone

that [Shadbolt] and [Irvan] were observed 'together.'" Irvan argues that this evidence

"would have rebutted the State's claims that there was no evidence of a relationship between

[Irvan] and [Shadbolt]," "would have explained the absence of any statements by [Irvan]

regarding his relationship with [Shadbolt],"and "could [have rebutted] the State's allegations

that any sexual activity was not consensual."

       Hughes testified that, sometime after January 1,1987, and before February 14, 1987,

she saw Irvan and Shadbolt together inside a convenience store and she had a brief

conversation with them. Defense counsel then asked Hughes if Irvan and Shadbolt "[gave

her] some instructions" or "[told her] something" during the conversation. The State made

a hearsayobjection and defense counselrespondedhe was not offering the statementto prove

the truth of the matter asserted.16 The trial judge sustained the State's hearsay objection.

Defense counsel later made a bill of exceptions, stating Hughes "would have testified that

both Michelle Shadbolt and William Irvan told her not to tell anyone that she had seen the

two of them together."

       Irvan does not argue on appeal that the trial judge's hearsay ruling was erroneous. He

only argues that the trial judge's exclusion of the evidence violated his constitutional right

to present a meaningful defense. Irvan failed to make this argument at trial and thus failed



       16
            TEX.R.EVID. 801.
                                                                                  IRVAN-20

to preserve it for appeal.17 Point of error twelve is overruled.

       In points of error thirteen and fourteen, Irvan argues that the trial judge violated his

due process right to present a meaningful defense by not allowing defense counsel to present

"evidence that Detective Rossi had learned in his investigation that [Shadbolt] had told Jack

Shadbolt, her estranged husband, two days before her death that they would never get back

together" and "evidence ofthe basis upon which Detective Rossi continued his investigation

of Jack Shadbolt as a prime suspect in this case." Irvan argues that "the trial court erred in

excluding this evidence as 'hearsay' as it was not presented for the truth of its contents but

for the fact that it explained the basis of Rossi's belief that Jack Shadbolt was a murderer .

. . and [Irvan's] state of mind regarding his need to protect and keep his relationship with

[Shadbolt], a married woman, secret." He also contends that the evidence would have

refuted the State's argument that there was no relationship between Irvan and Shadbolt.

       Rossi testified at trial that it was possible that Shadbolt knew her attacker because

there were no signs of forced entry. Rossi further testified that Jack Shadbolt was the first

potential suspect because he was Shadbolt's spouse and they had been recently separated.

Defense counsel continued to question Rossi as follows:

       Q.     Did you learn anything else while there at the scene about their
              relationship that helped strengthen that possibility?

       A.     He was an alcoholic.


       Q.     Okay. You recall that you learned it there while you were at the initial


       17 TEX. R. APP. P. 33.1.
                                                                        IRVAN-21

       scene?


A.     Yes, sir.

Q.     Okay. Anything else about their relationship?

A.     I don't recall anything else.

Q.     Did you ever learn that they weren't ever going to get back together
       again?

       [PROSECUTOR]: Judge, I am going to object to that. That's going to
be hearsay.

       THE COURT: Sustained as to the form of the question.

Q.     Isn't it true, Detective Rossi, that you learned through your
       investigation that Michelle Shadbolt had told her husband two days-

       [PROSECUTOR]: Objection. That's hearsay.

       THE COURT: Let him finish the question.

Q.     - two days before this killing that she had told her husband they were
       not going to get back together?

       THE COURT: Your objection is sustained.

       [DEFENSE COUNSEL]: Judge, may I respond?

      THE COURT: Yes, sir.

       [DEFENSE COUNSEL]: First of all, this is cross-examination. And
he has been allowed to talk about his theory based upon what he has learned.
And I think it is a valid place to cross-examination [sic], valid question.

      THE COURT: The objection is sustained.

Q.    Did you learn anything else about the relationship between the two, at
      the time, that strengthenedyour resolve that he was a possible suspect?
                                                                                   IRVAN-22

               [PROSECUTOR]: Judge, I object to anything that calls for a hearsay
       answer.



               THE COURT: Sustained as to the form of the question.

       Q.      Did you learn anything else about the relationship, yes or no, if you
               recall?


       A.      No, sir, I don't recall.

       Although defense counsel was unable to ask the question in his desired format, he

essentiallyreceived an answer when Rossi ultimatelytestified that he did not recall learning

anything else about the relationship between Michelle and Jack Shadbolt. Moreover, this

complaint is not preserved for our review.18 Defense counsel failed to argue at trial thatthe

exclusion of the evidence violated Irvan's constitutional right to present a meaningful

defense. He also failed to make an offer of proof or bill of exceptions showing the testimony

he expected to elicit from Rossi.19 Points of error thirteen and fourteen are overruled.

                              LESSER-INCLUDED OFFENSE


       In point of error fifteen, Irvan complains that the jury should have been instructed on

the lesser-included offense of murder. Defense counsel made the following request at trial:

              Judge, it is our position that through a question ofthe medical examiner
       on either redirect or re-redirect by [the prosecutor], she had asked the medical
       examiner whether or not it was consistent or it could be consistent with the fact
       that there was no trauma to Miss Shadbolt's vulva, vagina or anal/rectal area


       18 TEX. R. APP. P. 33.1.

       19 See Guidry v. State, 9 S.W.3d 133, 153 (Tex. Crim. App. 1999) (holding error in
the exclusion of evidence may not be urged unless the proponent perfected an offer of
proof or a bill of exceptions).
                                                                                  IRVAN-23

       that could be consistent with somebody having been killed and then having the
       sexual assault take place. And I believe his response was something to the
       effect, well, that might explain why there were no injuries, but who knows, or
       something to that effect.

              We believe that that evidence brought out and put in front of the jury
       by the State would raise the lesser included offense of murder in that you
       would have a murder, but you can't have the sexual assault that would take
       place after the fact. You might have abuse of corpses, something like that, but
       certainly not a capital murder.




       THE COURT: I will deny that request.

       We use a two-part test to determine whether a defendant is entitled to an instruction

on a lesser-included offense.20 The first step in our analysis is to determine if the lesser

offense is included within the proof necessary to establish the offense charged.21 Here, the

first part of the test has been satisfied because we have held that murder is a lesser-included

offense of capital murder.22 The second step requires an evaluation of the evidence to

determinewhether there is some evidence that would permit a jury rationallyto find that the

defendant is guilty only ofthe lesser offense.23 In other words, there must be some evidence

from which a jury could rationally acquit the defendant of the greater offense while




       20 Rousseau v. State, 855 S.W.2d 666, 673 (Tex. Crim. App. 1993).

       21 Id.

       22 Jones v. State, 833 S.W.2d 118, 127 (Tex. Crim. App. 1992).

      23 Id. at 672; Rousseau, 855 S.W.2d at 672; Moore v. State, 969 S.W.2d 4, 8 (Tex.
Crim. App. 1998).
                                                                                    IRVAN-24

convicting him of the lesser-included offense.24         The evidence must establish the

lesser-included offense as a valid rational alternative to the charged offense.25

       The medical examiner, Dwayne Wolf, testified that "sometimes you see injuries,

sometimes you don't see injuries, if a woman is sexually assaulted" and "[i]f there are no

injuries it doesn't mean she wasn't sexually assaulted." The prosecutor asked Wolf on re

direct examination if there would be fewer injuries to a woman's genitalia "if the rape

happened when she was dead." Wolf replied: "There would probably be less injuries. lam

not sure that - -1 am not sure that that is known." When questioned by defense counsel on

re-cross examination, Wolf testified: "if [Shadbolt] was sexually assaulted, we don't know

when that occurred, while she was becoming unconscious because she was bleeding from her

neck wound, or at the height of the struggle. There is no way to know." Defense counsel

asked, "In other words, you can't tell whether the sexual assault, if there was one, occurred

at the time of the killing, occurred earlier or occurred after death, for that matter?" Wolf

replied in the affirmative.

       The jury could not rationally acquit Irvan of capital murder and convict him only of

murder merely because the medical examiner could not pinpoint the exact timing of the

sexual assault. There was other evidence showing that Irvan murdered Shadbolt in the course

of committing aggravated sexual assault. Rossi testified he observed "bloody fingermarks"



       24 Moore, 969 S.W.2d at 8.

       25 Wesbrookv. State, 29 S.W.3d 103, 113-14 (Tex. Crim. App. 2000).
                                                                                   IRVAN-25

on Shadbolt's "rear end," which he believed were indicative of someone "trying to hold her

up" in order to "rape her." Llamas testified Irvan told her that he "raped" and "killed"

Shadbolt. Llamas also explained that Irvan said he went to Shadbolt's house to try to have

sex with her, he "got carried away" when she refused, she "fought real hard," and he stabbed

her. Irvan has failed to satisfy the second requirement of the test; therefore, the trial judge

did not err in refusing his request for an instruction on the lesser-included offense of murder.

       Irvan also argues that he was entitled to an instruction on the lesser-included offense

ofmurder because the evidence showed he had consensual sex with Shadbolt before he killed

her. This is not the argument he presented to the trial judge when he requested the lesser-

included offense instruction.26 He argued at trial that he was entitled to the instruction

because the medical examiner's testimony showed he could have had sex with Shadbolt after

he killed her. Irvan argues on appeal that the trial judge's refusal to instruct thejury on the

lesser-included offense of murder denied his due process rights under the Fifth and

Fourteenth Amendments and Article I, Section 19, but he also failed to make this argument

at trial.27 Point of error fifteen is overruled.

                            RESIDUAL DOUBT INSTRUCTION


       In point of error sixteen, Irvan argues that the trial judge violated the Eighth

Amendment to the United States Constitution when the judge denied his "request for an



       26 TEX. R. APP. P. 33.1.

       27 Id.
                                                                                  IRVAN-26

instruction allowing the jurors to consider any residual doubt as a mitigating circumstance

when answering the mitigation special issue." He contends that the trial judge denied "his

right to place all mitigating evidence, including the 'circumstances of the offense[,]' within

the jury's effective reach in deciding whether a life sentence is more appropriate than the

death penally."

       Irvan was not entitled to a residual doubt instruction. There is no constitutional right

to have the jury consider their "residual doubts" over a defendant's guilt as a mitigating

factor at the punishment phase of a capital murder trial.28 Moreover, defense counsel was

able to present a "residual doubt" argument to the jury in his closing argument at punishment:

               This is your last chance. If there is some question in your mind, this is
       your last chance to do something about it. Because that day in the future when
       you hear on television, well, they are killing [William] Irvan next Thursday,
       if the thought even runs through your mind, what if that bloody print on the
       trophy that bludgeoned Michelle Shadbolt, what ifthat was the killer's print?

               And even more crucial, what if those probable pubic hairs under her
       fingernails belonged to her killer? What if? Because they are going to kill
       [William] Irvan tomorrow or Thursday or whatever day.

               Ifyou are even thinking what ifabout that right now, ifthat thought has
      crossed your mind this is your last chance to do something about that, because
      that is part ofthe circumstances ofthe offense that you are to consider all these
      cases.



             Don't think it is not possible to make a mistake on the issue of guilt or
      innocence. It is absolutely possible. So, if you think there is any possibility
      based on the evidence as you heard it, that there is a possibility that someone
      else did this, there is a possibility that Tamara Llamas is a liar, then your last
      chance to avoid possibly causing an innocent person to be put to death is


      28 Franklin v. Lynaugh, 487 U.S. 164, 174 (1988).
                                                                                   IRVAN-27

       today. And you may consider those things as circumstances of this offense.

              And you don't have - - all of you do not have to agree on what
       mitigation is. It is if there are five of you that think the fact that we can take
       him out of drug society is mitigation and five of you worried about the
       evidence, you-all don't have to agree on what it is, as long as there are 10 of
       you.


              I would ask you to seriously, seriously look into your hearts and
       consider those things before you answer this question.

              Thank you, ladies and gentlemen.

Irvan was able to argue his "residual doubt" claim to the jury, which could have given

mitigating effect to any "residual doubt" in answering the special issues.29 Point of error

sixteen is overruled.


                         TEXAS DEATH-PENALTY STATUTE


       In his final two points of error, Irvan argues that the Texas death-penalty statute

violated his rights under the Eighth Amendment to the United States Constitution. In point

of error seventeen, Irvan alleges that "the absence of a third sentencing alternative of life

without parole" did not allow the jury to give effect to his mitigating evidence. In point of

error eighteen, he contends that he "was sentenced to death upon less than proof beyond a

reasonable doubt of the continuing threat special issue, because the Texas [d]eath penalty

statute did not provide jurors with the sentencing option [of] life without parole."

       The Texas capital-murder statute is not unconstitutional for failing to provide an




       29 Blue v. State, 125 S.W.3d 491, 502-503 (Tex. Crim. App. 2003).
                                                                                IRVAN-28

optional penalty of life without parole.30 The lack of a life without parole option did not

preclude thejury from giving effect to Irvan's mitigating evidence. The death-penalty statute

also provides that the State must prove the future-dangerousness special issue beyond a

reasonable doubt.31 Points of error seventeen and eighteen are overruled.

       We affirm the judgment of the trial court.

Delivered: June 7, 2006.
Do Not Publish




      30 Arnold v. State, 873 S.W.2d 27, 39-40 (Tex. Crim. App. 1993).

      31 Art. 37.0711, § 3(c).
