             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                         NO. AP-75,247



                         JIMMIE URBANO LUCERO, Appellant

                                                 v.

                                   THE STATE OF TEXAS

                            ON DIRECT APPEAL
           FROM CAUSE NO. 48593-C FROM THE 251 ST DISTRICT COURT
                             POTTER COUNTY

      HERVEY , J., delivered the opinion of the Court in which KELLER , P.J., MEYERS ,
WOMACK , KEASLER , HOLCOMB and COCHRAN , JJ., joined. PRICE and JOHNSON , JJ.,
concurred.

                                          OPINION

       Appellant was convicted on May 23, 2005, of murdering three of his neighbors during the

same criminal transaction. TEX . PEN . CODE ANN ., §19.03(a)(7)(A).1 Pursuant to the jury’s answers


       1
         On the morning of September 6, 2003, the 45-year-old appellant entered his neighbor’s
property and murdered three members of the Robledo family with a shotgun. Pedro Robledo, his
wife, Manuela Robledo, and their daughter Fabiana Robledo were murdered. Appellant also
attempted to murder the Robledo’s other two children, Socorro and Guadalupe Robledo, who both
testified at trial. Socorro testified that he escaped on foot without injury, and Guadalupe testified
that appellant cornered her, Fabiana, and Fabiana’s 18-month old son in a bedroom. Appellant shot
                                                                                      (continued...)
                                                                                            Lucero–2

to the special issues set forth in TEX . CODE CRIM . PROC., Article 37.071, §§2(b) and 2(e), the trial

judge sentenced appellant to death. Finding no merit in any of the seven points of error raised by

appellant in this direct appeal, we affirm.

       Points of error one and two relate to a juror misconduct claim that appellant raised in a

motion for new trial. Appellant asserts in point of error one that the trial court erred in denying him

a hearing on his juror misconduct claim.2 He asserts in point of error two that the jury committed

misconduct under the United States Constitution when it considered Biblical scripture during the

punishment-phase deliberations.3

       The record reflects that appellant filed new trial motions (an original and an amended motion

for new trial). These motions alleged that the jury foreman read Biblical scripture to the jury at the

beginning of the punishment-phase deliberations after an initial straw vote showing that two jurors

were unwilling to answer the special issues in a way that required appellant to be sentenced to death.

These motions alleged:

       After retiring to deliberate on the issue of punishment, the jury foreman conducted
       an initial straw vote on both of the statutorily mandated special issues which
       addressed the probability that Defendant would commit criminal acts of violence in
       the future so as to constitute a continuing threat to society (special issue number 1)
       and whether there existed sufficient mitigating circumstances to warrant that a


       1
       (...continued)
Guadalupe in the arm and murdered Fabiana after pulling her son from her arms.
       2
        Point of error one: Did the trial court abuse its discretion and commit reversible error in
denying appellant an evidentiary hearing on the issue of scripture reading by the jury foreman during
punishment deliberations?
       3
        Point of error two: Was appellant denied his rights to an impartial jury and punishment
determination in violation of the Sixth, Eighth, and Fourteenth Amendments to the Unites States
Constitution when jurors considered Biblical scripture during its deliberations at the punishment
phase of appellant’s trial and before it rendered its final verdict?
                                                                                            Lucero–3

       sentence of life imprisonment rather than a death sentence be imposed (special issue
       number 2). This initial vote revealed a majority of ten jurors who were prepared to
       vote “yes” to special issue number 1 and “no” to special issue number 2, thus
       necessitating the imposition of the death penalty. The remaining two jurors indicated
       their unwillingness to vote in such a way in which the death penalty would be
       imposed. At this juncture, the jury foreman produced his personal Bible and read to
       all members of the jury scripture from the Bible. This scripture addressed a
       Christian’s duty to obey and consent to the laws of man.[4] It also informed the
       listeners that those who opposed authority would experience condemnation.[5]

       The content of this scripture had the desired effect of coercing the two dissenting
       jurors to change their votes in order to insure a unanimous tally on both special
       issues. Thus, the receipt of the biblical scripture by the jury infringed on each
       individual juror’s duty to base their verdict only on evidence received at trial. This
       receipt of other evidence was detrimental to Defendant’s constitutional guarantee that
       the verdict at the punishment phase of the trial be truly unanimous, free from
       coercion and the product of the juror’s individualized assessment of evidence
       lawfully admitted into during (sic) the punishment phase of the trial.


       4
       The record reflects that the jury foreman read Romans 13:1-6, from the New Testament of
the New International Version of the Bible. Romans 13:1-6, provides:
       1
        Everyone must submit himself to the governing authorities, for there is no authority
       except that which God has established. The authorities that exist have been
       established by God. 2Consequently, he who rebels against the authority is rebelling
       against what God has instituted, and those who do so will bring judgment on
       themselves. 3For rulers hold no terror for those who do right, but for those who do
       wrong. Do you want to be free from fear of the one in authority? Then do what is
       right and he will commend you. 4For he is God’s servant to do you good. But if you
       do wrong, be afraid, for he does not bear the sword for nothing. He is God’s servant,
       an agent of wrath to bring punishment on the wrongdoer. 5Therefore, it is necessary
       to submit to the authorities, not only because of possible punishment but also because
       of conscience. 6This is also why you pay taxes, for the authorities are God’s servants,
       who give their full time to governing.
       5
        Appellant claims on appeal that the Biblical scripture read by the foreman “had to do with
a Christian’s duty and responsibility to carry out the dictates of secular law” which “includes
society’s and this state’s validation of the legality of capital punishment.” He further asserts that:

       [T]his extra-judicial code of law requires a mortal’s submission to civil law and that
       includes the imposition of capital punishment. In this regard, reference to Romans
       13:1-6 carries with it a high potential of influencing a jury’s deliberations on the
       issue of life or death.
                                                                                             Lucero–4

        Appellant supported these allegations with an affidavit from one of the jurors (juror No. 7).

This affidavit states:

        I served as a juror in the case styled The State of Texas v. Jimmie Urban Lucero in
        the 251st District Court in Potter County, Texas. During jury deliberations at the
        punishment phase of the trial, I recall that the jury foreman suggested that we take a
        “straw vote” or a preliminary vote on the two special issues to see where we, as the
        jury were. The initial vote on both special issues showed 10 jurors were in favor of
        answering the questions in a way in which the death penalty would be imposed. The
        remaining two jurors were unwilling to answer those questions in a way in which the
        death penalty would be imposed. It was at this point in time that the jury foreman
        took out a Bible which he had with him. He read some scripture from the Bible.
        This scripture had to do with a Christian’s duty to obey, conform and consent to the
        will and laws of man. This reading of scripture occurred before the final votes were
        taken by the jury on the two special issues regarding the probability that the
        Defendant would commit criminal acts of violence in the future and the sufficiency
        of mitigating evidence which would justify a life sentence in place of the death
        penalty. Although there was not a unanimous vote by the jury as a whole on the two
        special issues before the reading of the scripture, the vote was unanimous on both
        special issues some time after the reading of scripture. The foreman of the jury then
        informed the bailiff and the Court that we had reached a unanimous verdict which
        called for the death penalty against Jimmie Lucero.

        Appellant claimed that the Bible reading by the jury foreman was an improper “outside

influence” under TEX . R. EVID . 606(b), which generally prohibits a juror from testifying about jury

deliberations for the purpose of impeaching the jury’s verdict with an exception to this general rule

being that a juror may testify “whether any outside influence was improperly brought to bear upon

any juror.”6 Appellant further claimed that it was mandatory for the trial court to hold a hearing on

        6
            Rule 606(b) provides:

        Upon an inquiry into the validity of a verdict or indictment, a juror may not testify
        as to any matter or statement occurring during the jury’s deliberations, or to the effect
        of anything on any juror’s mind or emotions or mental processes, as influencing any
        juror’s assent to or dissent from the verdict or indictment. Nor may a juror’s affidavit
        or any statement by a juror concerning any matter about which the juror would be
        precluded from testifying be admitted in evidence for any of these purposes.
                                                                                         (continued...)
                                                                                            Lucero–5

his new trial motions so that appellant could “develop the circumstances of the Bible reading and

the exact content of the biblical verse read by the foreman to the entire jury.”

       Appellant also claimed in his new trial motions that he was entitled to a hearing on these

motions because “key jurors refuse[d] to discuss the matter with counsel or with any representative

of counsel.” He further claimed that “[o]nly through compulsory process and sworn testimony from

key jurors at a hearing can all relevant facts be developed for this Court’s ultimate determination of

the merits underlying Defendant’s motion.” Appellant’s counsel filed an affidavit in support of these

allegations. The affidavit indicates that only three jurors (Nos. 1, 8, and 12) declined to discuss the

case with appellant’s counsel. It also specifically states counsel did discuss the case with jurors

numbered 2, 3, 4, 5, 6, 7, and 11. No mention is made of juror No. 9 or No. 10. Thus, it appears

nine out of twelve jurors did discuss the case with appellant’s counsel before he filed his new trial

motions supported only by juror No. 7's affidavit.

       Relying primarily on civil cases, the State’s response asserted that the Bible reading was not

an “outside influence” and that appellant was, therefore, improperly attempting to impeach the jury’s

verdict under Rule 606(b). See, Golden Eagle Archery Inc. v. Jackson, 24 S.W.3d 362, 366-75 (Tex.

2000) (rules contemplate that an “outside influence” originates from sources other than the jurors

themselves); Brandt v. Surber, 194 S.W. 3d 108, 134 (Tex.App.–Corpus Christi 2006, pet. denied)

(a jury’s discussion of newspaper articles is not an “outside influence”); Easly v. State, 163 S.W.3d

839, 842 (Tex.App.–Dallas 2005, no pet.) (a chart brought into jury room with calculations of time



       6
        (...continued)
       However, a juror may testify: (1) whether any outside influence was improperly
       brought to bear upon any juror; or (2) to rebut a claim that the juror was not qualified
       to serve.
                                                                                            Lucero–6

appellant would serve in prison after application of the parol laws is not an “outside influence”);

Perry v. Safeco Ins. Co., 821 S.W.2d 279, 281 (Tex.App.–Houston [1st Dist.] 1991, writ denied)

(juror using dictionary to share a definition with other jurors is not an “outside influence”).

       It is also imperative to note that the State submitted affidavits from all twelve jurors, all of

which indicated that the verdict was not affected by the brief reading of Biblical scripture near the

beginning of the hours-long jury deliberations. The two jurors who changed their votes after the

preliminary vote unequivocally stated that the reading of the scripture and its content had no effect

on their votes on the issues presented to the jury. Juror No. 3 stated:

                When the first vote was taken, I was not ready to vote because I was
       overwhelmed and too emotional. As a result, I initially voted in a way that a life
       sentence rather than the death sentence was imposed. The case was difficult for me,
       among other reasons, at least because, I, like the defendant, came from a large family,
       had a brother about the same age of the defendant, and the defendant’s mother was
       near the age of my mother. I wanted to take time, discuss the evidence, think about
       the trial, and feel clear about my decision . . .
                After going back into the jury deliberation room during the punishment stage,
       I recall the juror foreperson read some scripture, saying that he was comforted by the
       scripture. The foreman said that we may or may not find comfort in the scripture.
       I do not recall the Chapter and verse of the scripture read. The scripture was not read
       in a way to force us to agree with it. The jury was not asked to agree with the
       scripture that was read or to change our decisions based upon its reading . . .
                The reading of the Bible and the comfort comment probably took less than
       2 and ½ minutes out of several hours of deliberations discussing the charged law and
       the facts. No other scripture was read or discussed . . .
                I do not believe that the reading of the scripture violated the principles of
       justice. In my opinion, the reading of the scripture did not violate any right of the
       defendant. The scripture reading was not utilized in a way to bring prejudice against
       the defendant. Moreover, in the overall scheme of about a two week trial and several
       hours of deliberations, the above Bible reading was not related to the verdict returned
       to the court.

The second of the two jurors to change their vote stated:

              When the first vote was taken, I did not vote in a way in which the death
       penalty was to be assessed. The negative vote was on the first of the two questions
                                                                                             Lucero–7

        the jury had to answer regarding a continuing threat to society. So, I initially voted
        in a way that a life sentence rather than the death sentence was imposed. After going
        back into the jury deliberation room during the punishment deliberations and after
        the first vote, the jury foreperson read some Bible verses. The scripture was not read
        in a way to force us to agree with it. The jury was not asked to agree with the
        scripture that was read or to change our decisions based upon its reading or content.
        I did not feel I was going to be condemned if I did not vote for a particular verdict or
        answer a question in a particular way . . . . I am today comfortable with my votes and
        individual decision I made during my service on this jury. We followed the court’s
        instructions.
                 The reading of the Bible took probably less than 2 minutes out of several
        hours of deliberations discussing the charged law and facts . . . . There was no
        suggestion that the Bible should be consulted on factual issues as opposed to the
        evidence presented at the trial . . . . In my opinion, based upon the discussions during
        jury deliberations, our decision was based upon the evidence presented during the
        course of the trial from the witness stand not on the reading of the scripture. My
        individual guilt and punishment determinations were based upon the law and
        evidence presented at trial not the Bible.

All twelve jurors believed that the scripture reading did not violate any right of the defendant and

that the defendant received a fair and impartial trial. The juror who read the scripture to the other

jurors stated:

               The reading of this scripture was not an attempt on my part to convince any
        juror to vote in a way that would result in the death penalty. I wanted to read
        scripture because of the seriousness of the decision at hand and to suggest that the
        man’s law as charged in the judge’s instructions should be followed. There was no
        suggestion that the Bible had the answer on the questions regarding whether a life
        sentence or a death sentence should be imposed. There was no suggestion that the
        Bible should be consulted as the legal authority contradicting the law of the court’s
        instructions. There was no suggestion that the Bible should be consulted on factual
        issues as opposed to the evidence presented at the trial.

All twelve jurors indicated that there was no discussion that Biblical principles should be considered

or applied in defendant’s case. More specifically, Juror No. 7 addressed any misconception that may

have been construed from the affidavit previously obtained by appellant’s counsel:

              The reading of the Bible and any accompanying comment probably took less
        than 3 minutes out of several hours of deliberations discussing the charged law and
                                                                                            Lucero–8

        the facts. No other scripture was read or discussed. There was no passage read
        suggesting that a murderer should be executed under Biblical law. There was no
        Bible passage read about the principal of a limb for a limb or an eye for an eye or
        tooth for a tooth. There was no discussion that such a Biblical principle should be
        considered or applied in this case to the Defendant, Jimmie Urbano Lucero.
               There was no suggestion that the scripture reading was to convince any juror
        to vote in a way that would result in the death penalty. I do not believe that the
        reading of the scripture was meant to sway votes one way or the other. There was no
        suggestion that the Bible had the answer on the questions regarding whether a life
        sentence or a death sentence should be imposed. There was no suggestion that the
        Bible should be consulted on factual issues as opposed to the evidence presented at
        the trial. To my knowledge, the reading of the scripture did not cause anyone to
        change their vote or to vote in a way that would have resulted in a death penalty
        being imposed. In my opinion, based upon the discussions during jury deliberations,
        our decision was based upon the evidence presented during the course of the trial
        from the witness stand not on the reading of the scripture. From my observations, I
        think each member of the jury gave his or her individual guilt and punishment
        determinations based upon the law and evidence presented at trial. This was
        certainly true for me.
                 I do not believe that the reading of the scripture violated the principles of
        justice. In my opinion, the reading of the scripture did not violate any right of the
        defendant. The scripture reading was not utilized in a way to bring prejudice against
        the defendant. I do not believe that there was any adverse judgment or opinion
        formed regarding the answers to the questions from the reading of the scripture or its
        content. I do not believe there was an detriment to the defendant caused by the
        reading of the scripture. I believe that the defendant received a fair and impartial
        trial. If I did not believe the defendant was accorded a fair trial, I would not be
        comfortable with my votes and the jury’s verdict.
               In my earlier affidavit signed through attorney Warren Clark, I did not mean
        to suggest that there was a connection between the reading of the scripture or its
        content and any member’s ultimate vote in a way where the death penalty was
        assessed. Moreover, in the overall scheme of about a two week trial and several
        hours of deliberations, in my opinion, the above Bible reading was not related to the
        verdict returned to the court.

        The trial court denied appellant’s request for a hearing on his new trial motions. In a letter

to the parties announcing its decision, the trial court stated:

        While I recognize that “sometimes trial courts choose to wisely make a full record of
        factual matters in death penalty cases”, I believe that such action is contrary to the
        public policy being promoted by Rule 606(b) of the Texas Rules of Evidence, in that
        it would subject the jurors to the rigors of direct and cross examination regarding
                                                                                             Lucero–9

       their deliberations. Such public scrutiny of confidential deliberations would
       discourage open discussion among jurors and could potentially be threatening to the
       entire jury process.

      To conduct a hearing simply to make a record, without any expectation that the
      hearing would result in admissible evidence, does not protect jurors from the
      inconvenience and potential harassment that such a hearing would impose.
      Therefore, under the present circumstances, I do not believe that the Defendant has
      raised an issue which would require an evidentiary hearing.[7]
(Emphasis in original).

       A defendant is entitled to an evidentiary hearing on his motion for new trial if the motion

       7
        This is consistent with the rationale that has been expressed for the general rule of not
permitting a juror to impeach his own verdict. See State ex. rel. Rosenthal v. Poe, 98 S.W.3d 194,
202 (Tex. Crim. App. 2003). For example, even in a case where a juror’s affidavit indicated that the
jury may have “adopted an unjust and arbitrary method” of arriving at its verdict, the United States
Supreme Court stated:

       The rule [that a juror cannot impeach his own verdict] is based upon controlling
       considerations of a public policy which in these cases chooses the lesser of two evils.
       When the affidavit of a juror, as to the misconduct of himself or the other members
       of the jury, is made the basis of a motion for a new trial, the court must choose
       between redressing the injury of the private litigant and inflicting the public injury
       which would result if jurors were permitted to testify as to what had happened in the
       jury room.

       These two conflicting considerations are illustrated in the present case. If the facts
       were as stated in the affidavit, the jury adopted an arbitrary and unjust method in
       arriving at their verdict, and the defendant ought to have had relief, if the facts could
       have been proved by witnesses who were competent to testify in a proceeding to set
       aside the verdict. But let it once be established that verdicts solemnly made and
       publicly returned into court can be attacked and set aside on the testimony of those
       who took part in their publication and all verdicts could be, and many would be,
       followed by an inquiry in the hope of discovering something which might invalidate
       the finding. Jurors would be harassed and beset by the defeated party in an effort to
       secure from them evidence of facts which might establish misconduct sufficient to
       set aside a verdict. If evidence thus secured could be thus used, the result would be
       to make what was intended to be a private deliberation, the constant subject of public
       investigation; to the destruction of all frankness and freedom of discussion and
       conference.

See McDonald v. Pless, 238 U.S. 264, 267-68 (1915).
                                                                                           Lucero–10

and accompanying affidavit(s) raise matters not determinable from the record, upon which the

accused could be entitled to relief. Wallace v. State, 106 S.W.3d 103, 108 (Tex. Crim. App. 2003).

We review the trial court’s decision under an abuse of discretion standard. Martinez v. State, 74

S.W.3d 19, 22 (Tex. Crim. App. 2002).

       Appellant claims on appeal that the trial court should have held a hearing on his new trial

motions and that the reading of Biblical scripture during the punishment-phase deliberations denied

his rights to an impartial jury and punishment determination in violation of the 6th, 8th, and 14th

Amendments to the United States Constitution. The State claims that appellant procedurally

defaulted these constitutional claims on appeal because he did not raise them in the trial court. The

State also claims that the trial court did not abuse its discretion to deny appellant’s request for a

hearing on his new trial motions, because the matters described in juror No. 7's first affidavit do not

constitute an “outside influence” and would, therefore, be excluded by Rule 606(b) at a motion for

new trial hearing.8

       We find it unnecessary to decide whether the jury foreman’s Bible reading in this case was

an “outside influence,” because this record presents no “reasonable grounds” that this Bible reading

affected the jury’s verdict. See Wallace v. State, 106 S.W.3d at 108 (defendant is entitled to hearing

on motion for new trial to make a record of matters not determinable from the record if the defendant

establishes the existence of “reasonable grounds” showing that the defendant “could be entitled to

relief”). The record presented to this Court indicates that this brief reading of Biblical scripture,

which was essentially an admonishment to follow man’s law (and, therefore, duplicated what was

       8
        The State argues that “a juror’s affidavit that described matters that did not constitute an
‘outside influence’ could not be used to support a live hearing on a motion for new trial based on
jury misconduct.”
                                                                                            Lucero–11

already in the court’s charge), occurred near the beginning of jury deliberations. The affidavits

clearly indicate that the scripture had no effect on the jury’s verdict rendered some hours later.9 We,

therefore, cannot conclude that the trial court abused its discretion in declining to hold a hearing on

appellant’s new trial motions. For the same reason, any constitutional error that appellant may have

preserved as a result of this Bible reading was harmless beyond a reasonable doubt. Points of error

one and two are overruled.10


       9
         The record indicates that jury deliberations began at 12:20 pm and ended at 5:19 pm. The
record also indicates that the scripture was read near the beginning of the deliberations, thus the jury
deliberated for many hours after the scripture was read and before they rendered a final verdict.
       10
          We also note the Ninth Circuit Court of Appeals’ decision in Fields v. Brown, a state of
California death-penalty case in which the jury foreman made notes “for” and “against” imposition
of the death penalty after consulting the Bible and other texts. See Fields v. Brown, 503 F.3d 755,
776-82, 780 (9th Cir. 2007). The “for” notes included a reference to Romans 13:1-6, and to other
Biblical scripture such as an “eye for an eye” and Exodus 21:12, which states, “He that smiteth a
man, so that he dies, shall surely be put to death.” See id. The jury foreman’s “for” and “against”
notes were shared with other jurors during punishment deliberations. See id.
        The defendant presented a “number of juror declarations” to the federal district court in
support of his claim that the references to the Bible and other texts during jury deliberations in the
state court proceedings constituted jury misconduct. See id. The federal district court and the Ninth
Circuit analyzed this claim under Federal Rule 606(b), which is more expansive than Texas Rule
606(b), because Federal Rule 606(b) permits jurors to testify “whether extraneous prejudicial
information was brought to the jury’s attention.” See Fields, 503 F.3d at 776-83.
        The federal district court struck most of the juror declarations as being inadmissible under
Federal Rule 606(b). See Fields, 503 F.3d at 778. Based on what was left, the federal district court
found “that the religious material in the [foreman’s] notes was actually received by the jury, was
available to it on the second day of deliberations, was discussed by some jurors, was presented at an
early stage of deliberations before a verdict was reached, and directly related to a material aspect of
the case because the references indicated that the death penalty should be imposed in any case
involving murder.” See id. The federal district court concluded that “the jury’s consideration of
Biblical references offended the principle that religion may not play a role in the sentencing process,
and that it had the potential to be highly prejudicial.” See id.
        In suggesting that the jury could properly consider the jury foreman’s “for” and “against”
notes, the Ninth Circuit stated that “the Biblical verses and the other concepts contained in the notes
are notions of general currency that inform the moral judgment that capital-case jurors are called
upon to make.” See Fields, 503 F.3d at 780. The Ninth Circuit ultimately decided, however, that
                                                                                         (continued...)
                                                                                            Lucero–12

       We understand appellant to claim in point of error three that the mitigating evidence

instruction “unconstitutionally narrow[ed] the jury’s discretion to factors concerning only moral

blameworthiness.”11 We have previously rejected this claim. See Perry v. State, 158 S.W.3d 438,

449 (Tex. Crim. App. 2005). Point of error three is overruled.

      Appellant claims in point of error four that the trial court erroneously overruled his objections

to the testimony of Royce Smithee,12 who provided fact testimony about Texas prison conditions in




       10
          (...continued)
the jury foreman’s notes were harmless, because they did not have a “substantial and injurious
effect” on the jury’s verdict. See Fields, 503 F.3d at 781-82. The Court stated:

       Whether or not [the jury foreman] should have brought his notes to the jury room and
       shared them, we cannot say that the Biblical part of the “for” part of the notes had a
       substantial and injurious effect on the verdict. His own notes had an “against” part
       as well. So far as we can tell, the communication occurred early on in the
       deliberations. Jurors could take as much time as they needed to sort through the
       evidence and reflect on whether the ultimate penalty was the right penalty. More
       importantly, the jury was instructed to base its decision on the facts and the law as
       stated by the judge, regardless of whether a juror agreed with it. We presume that
       jurors follow the instructions.

See id. (Footnote and citations to authority omitted).
        11
          Our understanding of the claim presented in appellant’s third point of error is based on
appellant’s reference in his brief to his amended motion for new trial, which presented this specific
claim to the trial court for the first time. The question appellant presents in point of error three is:

       Does Art. 37.071 sec. 2(f)(4) Code of Criminal Procedure violate the 5th, 6th, 8th and
       14th Amendments to the United States Constitution as well as those principles
       underlying Tennard v. Dretke, 542 U.S. 274, 124 S.Ct. 2562 (2004)?
        12
         Smithee is the “chief investigator for the Special Prosecution Unit,” which is a “prosecutor
assistance program out of the governor’s office” with the primary function “to investigate and
prosecute, help the DA prosecute, criminal offenses that occur in the prison system and/or on state
property.”
                                                                                            Lucero–13

general and opinion testimony that violence can occur within the Texas prison system.13 Appellant

claimed that Smithee’s testimony was irrelevant under TEX . R. EVID . 401 and, therefore, would not

aid the jury in determining a fact in issue under TEX . R. Evid. 702. The trial court ruled that Smithee

could testify generally about the operations of the Texas prison system and offer an opinion that

violence can occur there.

       [DEFENSE]: Judge, we don’t believe that in this particular case–although, obviously
       we would be disagreeing on different grounds if Mr. Smithee were trying to draw
       directly to [appellant]. But with regard to this case, what the State’s wanting to do
       is to not get into the actual future dangerousness mode, but try to make an illusion
       or a suggestion to the jury that because violent acts do occur in prison, that
       [appellant] is going to commit that.

       If they cannot individualize and show evidence particular to [appellant’s] probability
       to commit future acts of violence in the future, then the evidence is not relevant.

       That’s what their burden is–and that’s what this gentleman will have to
       prove–showing the prison system is fine unless they’re going to try to go into the fact
       that violence can occur in prison. But he can’t give us any handle or any help as to
       whether or not this particular Defendant would be a violent risk in the future, so we
       believe it’s not relevant under 702 and we would ask the Court to exclude him.

       [THE COURT]: The objection as to relevance will be overruled.

       Counsel, Mr. Smithee will be allowed to give factual testimony about the operations
       of the Institutional Division of the Texas Department of Criminal Justice, and I don’t
       believe an opinion is necessary in any area.

       [STATE]: I think, Your Honor, as far as opinion goes, the furtherest (sic) that he
       would be asking Mr. Smithee questions in that regard was if any inmate chose to
       commit an offense within the prison system, could they within the system as it’s set
       up today, do that if they chose to do so. But we are not going to be applying that

       13
            The question appellant presents in point of error four is:

       Did the trial court abuse its discretion in admitting Smithee’s testimony concerning
       violence in prison and the inner workings of prison when the witness could not and
       did not opine that the circumstances, facts and events described by Smithee would
       specifically apply to Appellant in his situation?
                                                                                          Lucero–14

       directly as to he just begs our question on that.

       [DEFENSE]: I don’t believe there’s any question that an inmate could do that if they
       wanted to, you know, whether it be with their hands or otherwise. But they’re trying
       to draw a parallel between this Defendant and general suggestions that they’re going
       to say and they just simply can’t do that. But they want to try to throw that out in
       front of the jury, so we believe that again–we’re not trying to argue with the Court,
       I apologize, but that it should not be admissible.

       [THE COURT]: Okay. The objection will be overruled.

       Mr. Smithee will be entitled to give opinion testimony as to whether or not violence
       can occur within the system, and factual testimony about the operations of the Texas
       Department of Criminal Justice, Institutional Division, but would prohibit opinion
       testimony as to probability or any kind of specific percentages.

       The record also reflects that, as part of its case at punishment, the defense claimed that “in

an incarcerated setting, [appellant] is not going to be a problem” and that a life-sentenced appellant

“would do well in prison.” In addition to presenting Smithee’s testimony that violence can occur

within the Texas prison system,14 the State also presented evidence that appellant had a “pattern of

violence that stretche[d] back for 20 years.” This evidence included numerous assaults that appellant

committed during this period of time against various people, including members of his own family,

with some of these assaults involving firearms.

       An issue for the jury’s determination was appellant’s future dangerousness. See Article

37.071(b)(1), TEX . CODE CRIM . PROC. The trial court did not abuse its discretion to decide that

       14
         For example, Smithee testified that a “defendant” within “the prison system” can be “as
violent as he wants to be when that opportunity arises.”

       Q. [STATE]: Is your testimony limited just to the fact that if a defendant chooses to
       exercise his choice and commit a violent crime within the prison system, is it your
       testimony that he will have the opportunity to do that?

       A. [SMITHEE]: An individual can be as violent as he wants to be when that
       opportunity arises.
                                                                                           Lucero–15

Smithee’s testimony that inmate violence can occur under current prison conditions had some

relevance to, and would have aided the jury in determining, appellant’s future dangerousness, such

as considering whether a life-sentenced appellant, with his history of assaultive behavior, would have

opportunities to commit violent acts in prison. See Threadgill v. State, 146 S.W.3d 654, 670-71

(Tex. Crim. App. 2004) (trial court did not abuse its discretion to admit photographs of bombs and

weapons made by inmates in Texas prison system because “evidence regarding weapons made by

prison inmates was at least marginally relevant to the testimony concerning inmate violence within

various classifications of prison society”); Canales v. State, 98 S.W.3d 690, 699 (Tex. Crim. App.

2003) (testimony regarding inmates’ ability to defeat locking mechanisms on prison cell doors

relevant to future dangerousness special issue).

       Appellant also claims on appeal that the admission into evidence of Smithee’s testimony

violated his Eighth Amendment right to individualized sentencing. The record, however, reflects

that appellant did not present this Eighth Amendment claim to the trial court. He, therefore, failed

to preserve this Eighth Amendment claim for appellate review. See TEX . R. APP . PROC. 33.1(a)(1).

Point of error four is overruled.

       In point of error five, appellant claims that the State delivered improper jury argument at the

punishment phase.15 The record reflects that appellant’s brother testified at the punishment phase

that appellant broke into his home in February 1995. Appellant was indicted for burglary as a result

       15
            The question appellant presents in point of error five is:

       Was the prosecutor’s assertion that Appellant’s and his family’s influence in
       persuading the prosecuting authorities to extend leniency for Appellant’s
       involvement in a burglary of a family member’s residence so prejudicial that it had
       a substantial and injurious effect or influence in determining the jury’s answers to the
       special issues and therefore, affected Appellant’s substantial right to a fair trial?
                                                                                            Lucero–16

of this incident. Appellant’s brother testified that he told a police officer the day after the incident

that he did not want to press charges and that he later signed “a form with the District Attorney’s

office asking them to not prosecute” appellant.

        Q. [STATE]: Okay. Now, let’s talk about since that day. You told the police officer
        that night or that next day that you did not want to press charges against [appellant]?

        A. [APPELLANT’S BROTHER]: Yes.

        Q. And they did press charges against him, correct?

        A. Correct.

        Q. And later on, just a month or two later, basically, you changed your mind on that,
        didn’t you, or you made a request of them. Is that a fair statement?

        A. I believe so.

        Q. What was that request?

        A. I didn’t want him to pay for any of the damages or anything like that.

        Q. Did you also sign a form with the District Attorney’s office asking them to not
        prosecute him?

        A. I believe I did.

        Q. What was your purpose in doing that?

        A. I love him and respect him.

        Appellant eventually received two years deferred-adjudication community supervision for

that burglary offense pursuant to a plea bargain. During closing arguments, the State argued, over

appellant’s objection:

        [STATE]: Mitigating evidence. You want to talk about that a little bit and we will
        for awhile. But right now, I want to particularly call your attention to one particular
        thing that they kept saying. You know, he’s sorry, he’s nice, he’s a wonderful guy.
                                                                                            Lucero–17

        Guess what, folks? I submit to you that’s the exact same thing he told the
        prosecutors back in 1995 and he got off light. He got a break because his family
        wanted him to have a break. And, Lord, help us, look where we are now. Because
        I’m sure that prosecutor thought long and hard about what to do because of the facts
        of the case–

        [DEFENSE]: Judge, I’m going to object to that, that’s inviting the jury to speculate
        outside the record.

        [THE COURT]: The objection will be overruled.

        [STATE]: –about the facts of that case, as well as the considerations that that family
        asked for leniency for their brother so he wouldn’t have to testify. And they won the
        day and look where we are. You cannot allow them to win the day again. If you do,
        to whom and for what will we have to allow [appellant] to apologize for again?

        Appellant claims that the State’s “reference to facts suggesting that Appellant and his family

took pains to influence the prosecution was not inferable from the evidence and as such, was wholly

improper” by injecting into the trial “new facts harmful to Appellant.” We decide that the State’s

argument was a reasonable deduction from brother Robert’s testimony that he told a police officer

that he did not want to press charges and that he believed that he later signed a form with the District

Attorney’s office not to prosecute appellant. See Holberg v. State, 38 S.W.3d 137, 141 (Tex. Crim.

App. 2000) (a permissible area of jury argument is reasonable deduction from the evidence).

        In addition, any error in the overruling of appellant’s objection to the State’s argument was

harmless, because, on this record, any unsupported-by-the-record assertion that appellant’s family

may have influenced the authorities to show leniency on appellant in the 1995 burglary case had

little, if any, influence on the jury’s answers to the special issues. See Johnson v. State, 967 S.W.2d

410, 417 (Tex. Crim. App. 1998) (non-constitutional error is harmless when “the appellate court,

after examining the record as a whole, has fair assurance that the error did not influence the jury, or

had but a slight affect.”). We believe that the jury’s answers to the special issues turned primarily
                                                                                             Lucero–18

on the facts of the offense (the brutal murder of three neighbors in their home for no apparent reason)

and appellant’s history of assaultive conduct. We do not believe that the jury’s answers to the

special issues resulting in appellant’s death sentence hinged on any efforts by appellant’s family to

persuade the authorities to show leniency on appellant in the 1995 burglary case. See id. Point of

error five is overruled.

        We understand appellant to claim in point of error six that the trial court erroneously denied

his request for a mistrial. He claims that he was entitled to a mistrial when the State’s punishment-

phase closing jury arguments directly commented on appellant’s failure to take the stand at the

punishment hearing to express remorse for murdering his three neighbors.16

        The record reflects that appellant presented the testimony of a psychological expert

(Schneider) whose testimony was based, in large part, on statements appellant made to him during

a psychological evaluation after appellant committed the offense in this case. Schneider’s written

psychological evaluation of appellant was also introduced into evidence as Defense exhibit 1.

Among other things, Schneider’s written psychological evaluation of appellant concluded that

“[p]ersonality assessment suggests [appellant] to be chronically depressed and to experience intense

suspicion of others, to maintain a strict guardedness and distance from others and to feel some

relative comfort only in solitary conditions.”

        Schneider testified consistently with his written psychological evaluation of appellant and

also testified generally about “sociopathic behavior,” with one of its indicators being “very little

        16
             The question appellant presents in point of error six is:

        Did the trial court commit reversible error in failing to grant a mistrial as a result of
        the prosecutor’s direct comment that Appellant had somehow neglected to
        demonstrate consideration or remorse for the crime of which he was convicted?
                                                                                             Lucero–19

remorse.” Schneider also testified that, with “the limited information” he had, he could not say

“definitively” that appellant was “sociopathic.”17 He also testified regarding appellant’s demeanor

during the evaluation, particularly “in specific reference” to this capital murder offense.

          Q. [DEFENSE]: What was his demeanor when he was talking with you on all these
          issues?

          A. [SCHNEIDER]: He was–he became–in specific reference to that incident, he
          became very quiet, very reserved, very guarded. I tried to, kindly as possible, get as
          much information as possible, but he became tearful and he just chose not to talk
          about it.

          This was consistent with Schneider’s written psychological evaluation of appellant, which

stated:

          Regarding the incident(s) in question, Mr. Lucero was asked if he remembered the
          incident(s). He stated, “Yes.” When asked to describe what led up to the incident
          in question, Mr. Lucero became tearful and chose not to discuss the actual incident.
          He stated that it occurred in September 2003, that he was home “just by myself.”
          When asked what occurred on that day, he stated, “I just don’t want to talk about it.”
          The subject became withdrawn, tearful and unresponsive to any type of inquiry. The
          interview was completed at that point.

          We understand appellant to have claimed, during the State’s closing jury arguments, that the

following emphasized portion of the State’s jury argument could only have been understood by the



          17
               Schneider also testified on cross-examination that sociopaths “show little remorse.”

          Q. [STATE]: Let’s talk a minute about antisocial personality disorder. Can you give
          me some criteria for that, sir–well, let me ask you, would the criteria include failure
          to conform with social norms?

          A. [SCHNEIDER]: Yes.
                                                    ***

          Q. And those that show little remorse?

          A. Yes.
                                                                                            Lucero–20

jury as a comment on appellant’s failure to take the stand to express remorse:

       [STATE]: He’s a good killer. He slaughtered and massacred the heart of the Robledo
       family in less than 2 minutes. He killed Pedro, Manuela and Fabiana, shot at
       Soccorro, and but, for I’ll submit to you, the grace of God, for Guadalupe to be
       turned sideways so that the shot went through her arm before it struck her body, or
       she would be dead, also. And she was fortunate enough not to cut a major artery in
       her arm and she still nearly died.

       This Defendant did all that in the presence of an 18-month-old boy, who now fears
       sirens, fears police, fears ambulances; and those are the folks he’s supposed to trust
       and believe in. Will he ever get over that? Who knows?

       The thing we do know is he will have to live with it for the rest of his life. We don’t
       know whether he’s concerned about it at all, folks.18 We really don’t–

       [DEFENSE]: Judge, I’m going to object–may we approach the bench?

       (On-the-record conference had at Bench:)

       [DEFENSE]: Judge, that last comment was an overt comment on the failure of the
       Defendant to testify and we would object.

       [THE COURT]: The objection will be sustained.

       [DEFENSE]: We would ask for an instruction to the jury to disregard that, and after
       that instruction, we would move for a mistrial.

       [THE COURT]: The motion for a mistrial will be denied. I will give you an
       instruction about the comment.

       [DEFENSE]: Thank you, Judge.

       (Proceedings had in open court)

       [THE COURT]: Ladies and gentlemen, I will instruct you to disregard any comments
       or arguments by the Prosecution as to whether or not the Defendant is concerned and

        18
        The record, therefore, does not necessarily support the assertion that the State’s jury
argument was a reference to appellant’s lack of remorse. The State’s jury argument that “[w]e don’t
know whether [appellant’s] concerned about it at all, folks” was consistent with Schneider’s
testimony and his written evaluation setting out appellant’s statement, “I just don’t want to talk about
it.”
                                                                                           Lucero–21

       I’ll leave it at that.

       Mr. Sims.

       [STATE]: From the evidence submitted to you by their witnesses, there’s no
       evidence of that. That’s what I’m telling you, folks. There’s no evidence of that, just
       like there’s no evidence of remorse. There’s no evidence that what transpired and
       what will transpire in prison that he will try to do anything to help any of those
       inmates.

       He’s controlling. He’s jealous. He’s manipulative. He’s impulsive. He’s irritable.
       He’s aggressive. He’s reckless, with a disregard for the safety of others. He has
       irresponsible work behavior. And he shows little remorse.

(Emphasis supplied).

       On this record, it is not clear that the jury would have naturally understood the State’s

argument that “[w]e don’t know whether [appellant’s] concerned about it at all, folks” as referring

to appellant’s failure to take the stand at punishment to express remorse. See Ladd v. State, 3

S.W.3d 547, 569 (Tex. Crim. App. 1999) (State’s jury argument commenting on defendant’s lack

of remorse could have been interpreted by jury as referring to testimony of psychiatrist, who testified

that defendant was a sociopath and had no remorse for his crimes).19 To the extent that the State’s



       19
           Arguably, on this record, it would have been permissible for the State to have commented
on appellant’s lack of expression of remorse during his evaluation by Schneider, because such a
comment is supported by the record and is encompassed within Schneider’s evaluation of appellant,
particularly whether appellant has indicators or characteristics of a sociopath. Compare Renteria
v. State, 206 S.W.3d 689, 697 fn.4 (Tex. Crim. App. 2006) (prosecutorial unsupported-by-the record
comment on defendant’s lack of expression of remorse may be impermissible comment on
defendant’s failure to testify). The jury, therefore, could have manifestly and naturally understood
the State’s argument as a permissible reference to appellant’s lack of expression of remorse during
his evaluation by Schneider and not as an impermissible reference to appellant’s failure to take the
stand at the punishment hearing to express remorse. See Cruz v. State, 225 S.W.2d 546, 548 (Tex.
Crim. App. 2007) (test to determine whether prosecutorial argument is comment on a defendant’s
failure to testify “is whether the language used was manifestly intended or was of such a character
that the jury would necessarily and naturally take it as a comment on the defendant’s failure to
testify”) (quoting Bustamonte v. State, 48 S.W.3d 761, 765 (Tex. Crim. App. 2001)).
                                                                                            Lucero–22

argument could have been so construed by the jury, appellant was not entitled to a mistrial, because

the trial court’s instruction to disregard was sufficient to cure any prejudice stemming from the

State’s argument. See Young v. State, 137 S.W.3d 65, 69 (Tex. Crim. App. 2004) (grant of mistrial

motion should be reserved for those cases in which an objection could not have prevented, and an

instruction to disregard could not have cured, the prejudice stemming from an event at trial);

Caldwell v. State, 818 S.W.2d 790, 799-800 (Tex. Crim. App. 1991)20 (any improper jury argument

by State alluding to defendant’s lack of remorse was cured by trial court’s instruction to disregard).21

In addition, appellant failed to object to the State’s subsequent jury arguments that “there’s no

evidence of remorse” and that appellant “shows little remorse.” Appellant, therefore, is not entitled

to a reversal due to the State’s earlier objected-to reference to appellant’s lack of remorse. Cf. Leday

v. State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998) (overruling of objection to evidence will not

result in reversal when other such evidence was received without objection, either before or after the

complained-of ruling).

         In point of error seven, appellant appears to argue that Article 37.071, TEX . CODE CRIM .

PROC., is unconstitutional because it fails “to provide a method by which the State of Texas

determines the deathworthiness of a capital defendant.”22 Appellant relies primarily on the Supreme


         20
              Overruled on other grounds by Castillo v. State, 913 S.W.2d 529, 532-35 (Tex. Crim. App.
1995).
         21
          Appellant claims on appeal that the trial court’s instruction to disregard was “tepid” and
“not forceful enough to cure the error.” The record, however, reflects that appellant made no such
claim at trial. In addition, appellant’s argument that the trial court’s instruction to disregard “was
not forceful enough to cure the error” effectively concedes that any prejudice in the argument was
curable by an instruction to disregard.
         22
              The question appellant presents in point of error seven is:
                                                                                        (continued...)
                                                                                         Lucero–23

Court’s decision in Bush v. Gore, 531 U.S. 98 (2000). We have rejected the arguments that appellant

appears to present in this point of error. See Threadgill v. State, 146 S.W.3d at 671-72 (rejecting

defendant’s argument that “because Article 37.071 fails to provide a mechanism by which the State

determines the death worthiness of the Defendant, it does not provide ‘some assurance that the

rudimentary requirements of equal treatment and fundamental fairness are satisfied’”). Point of error

seven is overruled.

       The judgment of the trial court is affirmed.

                                                              Hervey, J.


Delivered: February 13, 2008
Publish




       22
         (...continued)
       Does Art. 37.071 of the Texas Code of Criminal Procedure fail to provide a method
       by which the State of Texas determines the deathworthiness of a capital defendant,
       thereby eliminating consistency in the decision to seek the death penalty and
       weakening the degree of accuracy required in imposing death, in contravention of the
       Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution?
