                IN THE COURT OF CRIMINAL APPEALS
                            OF TEXAS

                                                   AP-75,633


                                  HOWARD PAUL GUIDRY, Appellant

                                                      v.

                                          THE STATE OF TEXAS


                             On Direct Appeal from Case No. 1073163 of the
                                      230th Judicial District Court,
                                             Harris County


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


       The appellant challenges his conviction for capital murder1 for his part in the 1994

shooting of Farah Fratta. Pursuant to the jury’s answers to the special punishment issues, the trial




       1
           See P ENAL C ODE § 19.03(a)(2) & (3).
                                                                                                               Guidry - 2

judge sentenced the appellant to death.2 The appellant raises fourteen points of error on this

direct appeal. Finding no error, we shall affirm the trial court’s judgment.

                                         PROCEDURAL BACKGROUND

         On March 21, 1997, the appellant was found guilty of the capital murder of Farah Fratta,

and he was sentenced to death on March 26. In 1999, this court affirmed his conviction on direct

appeal.3 In 2000, this court denied the appellant’s application for habeas corpus. In 2003, the

United States District Court for the Southern District of Texas granted relief on a petition for writ

of habeas corpus, ordering a new trial.4 The Court of Appeals for the Fifth Circuit affirmed on

January 14, 2005.5 In the appellant’s second trial for capital murder, he was found guilty on

February 22, 2007, and was sentenced to death on March 1 of that year. This is his direct appeal

from that conviction.

                                        TESTIMONY OF DR. BASINGER

         In points of error one through three, the appellant contends that the trial court erred in

admitting the testimony of Dr. Scott Basinger, in violation of his rights under the Fifth

Amendment and under Article 38.23 of the Code of Criminal Procedure.6 Dr. Basinger was hired

by the appellant as a mitigation expert for the punishment phase of his first trial. During the


         2
             See C ODE C RIM. P ROC. art. 37.071, § 2(b), (c), & (g).

         3
             Guidry v. State, 9 S.W.3d 133 (Tex. Cr. App. 1999).

         4
          Guidry v. Dretke, 2003 U.S. Dist. LEXIS 26199 (S.D. Tex. 2003). The appellant was granted relief based
on the admission of what the district court found to be two illegally obtained confessions to police officers.

         5
             Guidry v. Dretke, 397 F.3d 306 (5th Cir. 2005).

         6
          This statute provides, in part, “No evidence obtained by an officer or other person in violation of any
provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of
America, shall be admitted in evidence against the accused on the trial of any criminal case.”
                                                                                             Guidry - 3

course of an interview with the appellant in preparation for that trial, the appellant admitted to

Dr. Basinger that he had committed the murder. On cross-examination at the trial, the prosecutor

asked Dr. Basinger whether the appellant had admitted to the shooting. Over defense objection,

Dr. Basinger responded in the affirmative. In the second trial, Dr. Basinger was called as a fact

witness by the prosecution and was asked about his testimony at the previous capital trial. Over

objection, Dr. Basinger again testified that the appellant had admitted to the murder. The

appellant now argues that his statements to Dr. Basinger were compelled by the illegal admission

of his confessions to police, and that the admission to Dr. Basinger was the “fruit of the

poisonous tree” of the confessions to police. He also argued that the admission to Dr. Basinger

was obtained in violation of Article 38.23, and that, but for the illegally obtained confessions to

police, the appellant would not have made an incriminating statement to Dr. Basinger.

       The Fifth Amendment to the Constitution of the United States prevents the prosecution

from using “statements, whether exculpatory or inculpatory, stemming from custodial

interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to

secure the privilege against self-incrimination. By custodial interrogation, we mean questioning

initiated by law enforcement officers after a person has been taken into custody or otherwise

deprived of his freedom of action in any significant way.”7

       In this case, Dr. Basinger was not working on behalf of the police when the appellant’s

admission was made to him. Rather, he was working on behalf of the appellant himself as an




       7
           Miranda v. Arizona, 384 U.S. 436, 444 (1966).
                                                                                                             Guidry - 4

expert witness.8 In short, the appellant was never “exposed to the ‘the cruel trilemma of

self-accusation, perjury or contempt.’”9 Thus, the Fifth Amendment is not directly implicated.

         The appellant further argues that his admission to Dr. Basinger is the “fruit of the

poisonous tree,” where the primary violation was the evidence of illegally procured confessions

to police admitted at the appellant’s first capital trial. The appellant contends that but for the

illegally obtained confessions, Dr. Basinger never would have testified at trial, because no trial

ever would have taken place. Relying heavily on Harrison v. United States,10 the appellant claims

that Dr. Basinger’s testimony was compelled by the admission of the illegally obtained

confessions to the police, and was therefore inadmissible.

         The case at bar is distinguishable from Harrison for two reasons. First, the decision to put

Harrison on the stand was made only after the illegally obtained confessions were admitted into

evidence, as were his inculpatory statements. Here, the inculpatory admission to Dr. Basinger

was made before the first trial, and there is no evidence that it was in response to the admission

of the illegally obtained confessions. Second, in Harrison the defendant himself chose to testify

at trial, unlike here, where the testimony originated from a witness other than the defendant.

Harrison specified that it was limited to the testimony of a defendant who is compelled to testify
         8
          See Wilkerson v. State, 173 S.W.3d 521 (Tex. Cr. App. 2005). In Wilkerson, the defendant made
inculpatory statements to a Child Protective Services caseworker which were admissible, even though the defendant
was in custody at the time, because the caseworker was not working on behalf of the police.

         9
         Michigan v. Tucker, 417 U.S. 433, 445 (1974), quoting Murphy v. Waterfront Commission, 378 U.S. 52,
55 (1964).

         10
            392 U.S. 219 (1968). In Harrison, the defendant testified at his own trial after his previous confessions
were entered into evidence. The confessions were subsequently deemed to have been obtained illegally, and the
defendant was granted a new trial. At the second trial, the defendant’s former testimony was introduced into
evidence. The defendant contended that his former testimony was inadmissible at the second trial because he had
been compelled to testify due to the introduction of the tainted confessions. The Court held that the former testimony
was inadmissible because the defendant testified only to overcome the impact of the illegally obtained confessions,
after the confessions were admitted. The Court reversed his second conviction.
                                                                                                                 Guidry - 5

on his own behalf because of the introduction of an illegally obtained confession. In that case, the

Court expressly declined to extend its holding to include the testimony of a third-party witness. 11

Accordingly this court declines to do so.

           Furthermore, although the admission to Dr. Basinger may not have come to light but for

the illegal actions of police, “exclusion may not be premised on the mere fact that a constitutional

violation was a ‘but-for’ cause of obtaining evidence. Our cases show that ‘but-for’ causality is

only a necessary, not a sufficient, condition for suppression.”12 “Rather, the more apt question in

such a case is ‘whether, granting establishment of the primary illegality, the evidence to which

instant objection is made has been come by at the exploitation of that illegality or instead by

means sufficiently distinguishable as to be purged of the primary taint.’”13 Attenuation can occur

when the causal connection is remote. 41

           In Bell v. State this court announced factors in determining attenuation, which included

the furnishing of Miranda warnings, the temporal proximity of the arrest and the confession, the

presence of intervening circumstances, and the purpose and flagrancy of the official

misconduct.15 In applying those factors to this case, we look to the passage of time, the

appellant’s appointment of counsel, the hiring of an expert witness, and other preparation for

trial. Together, they provide a sufficient break in the chain of causation stemming from the



           11
                Harrison, 392 U.S., at 224 n.2.

           12
                Hudson v. United States, 547 U.S. 586, 592 (2006).

           13
                Wong Sun v. United States, 371 U.S. 471, 487-88 (1963) (quoting M AGUIRE , E VID EN CE O F G U ILT 221
(1959)).

           14
                See Nardone v. United States, 308 U.S. 338, 341 (1939).

           15
                724 S.W.2d 780 (Tex. Cr. App. 1986).
                                                                                                             Guidry - 6

primary illegality. We conclude that Dr. Basinger’s testimony was admissible. Points one, two,

and three are overruled.

                                                    JURY UNANIMITY

         In points of error four through seven, the appellant argues that the court’s charge to the

jury denied his right to a unanimous verdict, thus violating several constitutional provisions. In

order to preserve a complaint for appellate review, a party generally must have presented a timely

request, objection, or motion that states the specific grounds for the desired ruling, if they are not

apparent from the context of the request, objection or motion.16 A statute specifically requires

that a defendant object to the charge of the court.17 In the case before us, there was no objection

to the charge at trial, and thus the issue was not preserved under that statute.

         According to this court’s construction of another statute, when error in the charge was not

called to the trial court’s attention, a judgment of conviction will be reversed only on a showing

that the defendant was denied a fair trial.18 The eighth point of error argues that there was a

denial of a fair trial because the charge allowed the jury to convict without agreeing unanimously

whether the defendant committed murder for remuneration or murder in the course of committing

burglary.19 This charge did not deny the appellant a fair trial. Indeed, it was not erroneous.20

         16
              R. A PP . P. 33.1(a).

         17
              See C ODE C RIM. P ROC. art. 36.14.

         18
              Almanza v. State, 686 S.W.2d 157 (Tex. Cr. App. 1984) (construing C ODE C RIM. P ROC. art. 36.19).

         19
            Under Section 19.03(a)(2) of the Penal Code, a person commits capital murder if he intentionally causes
the death of an individual in the course of committing or attempting commit any of several offenses, including
burglary. Under Section 19.03(a)(3), a person commits capital murder if he intentionally or knowingly causes the
death of an individual for remuneration or the promise of remuneration.

         20
           Kitchens v. State, 823 S.W .2d 256 (Tex. Cr. App. 1991), cert. denied, 504 U.S. 958 (1992) (not
fundamental error to submit, in one paragraph of the charge, alternative theories of capital murder committed in the
course of committing robbery or sexual assault).
                                                                                                             Guidry - 7

“When an indictment alleges different methods of committing capital murder in the conjunctive,

the jury may properly be charged in the disjunctive. … The unanimity requirement is not violated

by instructing the jury on alternative theories of committing the same offense ….”21

                    Points four through eight are overruled.

                                 EFFECTIVE ASSISTANCE OF COUNSEL

         In his ninth and tenth points of error, the appellant complains that he was denied his right

to effective assistance of counsel under the Sixth Amendment to the Constitution of the United

States because his attorney neither objected to, nor requested a hearing on the admissibility of,

the testimony of Mary Gipp-McNeill.

         As this court has previously noted,22 since the record does not usually reflect the

reasoning or motivation behind counsel’s actions or inactions, it is rarely possible to assess such

a claim fairly on direct appeal. Because of this, the appellant will rarely be able to meet the first

prong of the Strickland test, which is to show that counsel’s performance fell below an objective

standard of reasonableness.23 Absent a motion for new trial and an examination of counsel’s

strategy, the record is not sufficiently developed, and the issue is more appropriately addressed in

an application for writ of habeas corpus where defense counsel will have the opportunity to

explain his acts or omissions. Points nine and ten are overruled.




         21
            Martinez v. State, 129 S.W .3d 101 (Tex. Cr. App. 2004) (overruling claim that it was error for the trial
court to permit the prosecutor to argue that the jury need not unanimously agree whether the murder was committed
in the course of robbery or sexual assault).

         22
           See Mata v. State, 226 S.W.3d 425, 430 (Tex. Cr. App. 2007); Roberts v. State, 220 S.W .3d 521, 533
(Tex. Cr. App. 2007).

         23
              See Strickland v. Washington, 466 U.S. 688 (1984).
                                                                                                         Guidry - 8

                                           BATSON CHALLENGE

        In his eleventh point of error, the appellant contends, under authority of Batson v.

Kentucky,24 that the trial court erred in overruling his objection to the State’s exercise of a

peremptory challenge in violation of the Equal Protection Clause of the Fourteenth Amendment.

        A defendant objecting under Batson must make a prima facie showing of racial

discrimination in the State’s exercise of its peremptory challenges.25 The burden then shifts to the

State to provide race-neutral explanations for its peremptory strikes.26 If the State articulates race-

neutral explanations, the burden shifts back to the defense to show that the State’s reasons are

pretexts for discrimination.27 The trial court must rule as to whether the defense has carried its

burden of proving purposeful discrimination.28 This determination is accorded great deference

and will not be overturned on appeal unless the ruling is clearly erroneous. 92

        Here, the defense objected under Batson to the State’s use of a peremptory challenge

against Venireman Matthew Washington. The court inquired into the prosecution’s reasons for

the peremptory challenge. The prosecution explained:

                To start with, he’s a member of [name omitted] Church. And we have a running
        agreement, my partner Luci Davidson and I have, since we started, that people who go to
        [that church] are screwballs and nuts. I’m very familiar with that church. That’s one reason
        that scared me about the man.


        24
             476 U.S. 79, 81 (1986).

        25
          Herron v. State, 86 S.W .3d 621, 630 (Tex. Cr. App. 2002); Mathis v State, 67 S.W .3d 918, 924 (Tex. Cr.
App. 2002).

        26
             Herron, 86 S.W .3d, at 630.

        27
             Ibid.

        28
             Ibid.

        29
             Ibid.
                                                                                                Guidry - 9

               The next reason is when asked why people commit violent crimes, his answer before
       we started talking to him today is “no education, no opportunities.” In my mind, people who
       have no education, no opportunities might be bums, might be slackers, might be lazy, but that
       doesn’t justify committing a violent crime.
               In addition to that, he talks about the fact that he’s been discriminated against at
       work, and he says on those occasions, two to three of them, when he was discriminated
       against, 85 percent of the group that was discriminating against him was white. The other 15
       percent was “other” and when pressed, he said they were Asian. That’s happened on more
       than one occasion and the people that passed him over were white. Right after that he went
       right on and sort of went on to say, in everyday life, we’re all treated as second-class citizens.
       And there’s two black men on this jury that are wonderful men that didn’t seem to have any
       issues at all about anything like that about being black men in America today. This man is
       different. He was very hesitant in answering my questions. He didn’t seem like he was
       comfortable answering any of the questions. I didn’t get a good feeling talking to him, unlike
       every other juror who I put on this jury, I didn’t feel that way talking to Mr. Washington.
               And then, to sum it all up, he might know Jeff Strange, who’s a prosecutor in Fort
       Bend County. In the corner – in the context of this courtroom, I can say I know Jeff Strange
       very, very well and knowing Jeff Strange, just because he’s a prosecutor, doesn’t mean
       anything. That doesn’t mean anything in my opinion.
               Finally, he says he’s an active member of the NAACP to the degree that he goes all
       the way back home to Snook, Caldwell, Burleson County, Texas, to attend the meetings that
       his mom and dad never miss. The NAACP’s stated objective – one of them is to get rid of
       the death penalty, to be opposed to the death penalty, to talk to people about how to get rid
       of the death penalty and they are very, very much for the Legal Defense Fund, which its main
       objective is to oppose the death penalty.
               The last thing, Judge, is one of the number one advocates and supporters of the
       NAACP in Harris County is Quanell X. I am quite sure Mr. Washington knows who Quanell
       X is and Quanell X could very well be a defense witness in this trial, because Quanell X is
       one of the people that Howard Guidry wanted to talk to when he took a hostage on death
       row. So Quanell X is going to be coming up to this trial and I don’t want a man who’s
       supportive of the NAACP as Mr. Washington is to be anywhere near this jury. And those are
       my race-neutral, very race-neutral reasons for why I exercised a peremptory.

       The trial court found that the State exercised its challenge fairly and for race-neutral

reasons. The defense did not attempt to demonstrate that the State’s reasons were pretextual, and

explicitly stated that it neither objected to nor desired to change the court’s decision.

       As the Supreme Court stated in Miller-El v. Cockrell:30


       30
            537 U.S. 322, 340 (2003).
                                                                                                           Guidry - 10

         “[T]he issue comes down to whether the trial court finds the prosecutor’s race-neutral
         explanations to be credible. Credibility can be measured by, among other factors, the
         prosecutor’s demeanor; by how reasonable, or how improbable, the explanations are; and by
         whether the proffered rationale has some basis in accepted trial strategy . . . In the context
         of direct review, therefore, we have noted that “the trial court’s decision on the ultimate
         question of discriminatory intent represents a finding of fact of the sort accorded great
         deference on appeal” and will not be overturned unless clearly erroneous . . . .”31

          Since the record does not indicate that the trial court’s ruling was clearly erroneous,

point of error eleven is overruled.

                                       VICTIM-IMPACT EVIDENCE

         In points of error twelve through fourteen, the appellant claims that the trial court erred in

overruling his objection to the admission of testimony about the effect of extraneous offenses.

Since the only objection at trial was to relevance, it is the only ground preserved for appeal. We

shall not address the appellant’s Eighth and Fourteenth Amendment arguments which are made

for the first time on appeal.

         Paulette Scott, Chantal Peve, Gene Hovermale, and Jeanette Bledsoe were called as

witnesses for the prosecution at the punishment phase of the trial. Each of them testified as to the

effect an extraneous offense, committed by the appellant, had on them. (The appellant robbed the

first three witnesses at a bank. The fourth witness was a prison guard whom the appellant took

hostage.) The trial court overruled the appellant’s objections.

         Article 37.071, Section 2(a)(1) of the Code of Criminal Procedure provides that

“evidence may be presented by the state and the defendant or the defendant’s counsel as to any

matter that the court deems relevant to sentence ….”




         31
            Miller-El, 537 U.S., at 339, citing Wainwright v. Witt, 469 U.S. 412, 428 (1985); see also Watkins v.
State, 245 S.W .3d 444, 457 (Tex. Cr. App. 2008).
                                                                                                           Guidry - 11

         As this court stated in Roberts v. State,32 “‘Victim impact’ evidence is evidence of the

effect of an offense on people other than the victim.”33 The “offense” in question is the one that

is at issue in the guilt stage of the trial. In this case, the testimony was about the effect of

extraneous crimes on the victims of those crimes.34 The testimony at issue in this case is not

victim-impact evidence, and referring to it as such only serves to confuse the issue. The

testimony offered here was admissible under Article 37.071 and was relevant to the future-

dangerousness issue.35 Points of error twelve, thirteen, and fourteen are overruled.

         The trial court’s judgment is affirmed.


Delivered October 21, 2009.
Do not publish.




         32
              220 S.W.3d 521 (Tex. Cr. App. 2007).

         33
           Id., at 531, citing Garcia v. State, 126 S.W .3d 921, 929 (Tex. Cr. App. 2004). See also Guevara v. State,
97 S.W .3d 579, 583 (Tex. Cr. App 2003); Mathis v. State, 67 S.W .3d 918, 928 (Tex. Cr. App 2002).

         34
             As this court recently explained in Hayden v. State, __ S.W .3d __, __, 2009 W L 928569, *3, 2009 Tex.
Crim. App. LEXIS 510, *8-9) (Tex. Cr. App., PD-0860-07, April 8, 2009), “[i]n the past, we have occasionally
referred to ‘victim impact evidence’ as a broad category that includes both victim character evidence and victim
impact evidence. (E.g. Salazar, 90 S.W .3d at 355.) Regrettably, this imprecision has become entrenched in this
state’s jurisprudence. Victim ‘impact’ evidence is evidence of the effect of the victim’s death on other people.”

         35
          C ODE C RIM. P ROC. art. 37.071, § 2(b)(1) (“whether there is a probability that the defendant would
commit criminal acts of violence that would constitute a continuing threat to society … ”).
