                                                                                   ACCEPTED
                                                                               03-14-00722-CR
                                                                                       7572323
                                                                    THIRD COURT OF APPEALS
                                                                               AUSTIN, TEXAS
                                                                         10/28/2015 9:55:24 AM
                                                                             JEFFREY D. KYLE
                                                                                        CLERK
   Nos. 03-14-00722-CR; 03-14-00723-CR; 03-14-00724-CR

           In the Court of Appeals for the Third District FILED IN
                                                    3rd COURT OF APPEALS
                           Austin, Texas                 AUSTIN, TEXAS
                                                     10/28/2015 9:55:24 AM
                           Mark Fruge,                  JEFFREY D. KYLE
                                                              Clerk
                            Appellant

                                 v.

                       The State of Texas,
                            Appellee

          Appeal from the 331st Judicial District Court
                     Travis County, Texas
     Cause Numbers D-1-DC-13-200256; D-1-DC-13-200257;
                      D-1-DC-13-200259
            Honorable Judge David Crain, Presiding

                         STATE’S BRIEF


                             Rosemary Lehmberg
                             District Attorney
                             Travis County, Texas

                             Matthew Foye
                             Assistant District Attorney
                             State Bar No. 24043661
                             P.O. Box 1748
                             Austin, Texas 78767
                             512-854-9400 (phone)
                             512-854-4810 (fax)
                             Matthew.Foye@traviscountytx.gov
                             AppellateTCDA@traviscountytx.gov



Oral argument is not requested
                               TABLE OF CONTENTS


INDEX OF AUTHORITIES...................................................... iv
STATEMENT REGARDING ORAL ARGUMENT ...................... vi
NOTE CONCERNING ABBREVIATIONS ................................ vi
STATEMENT OF THE CASE .................................................. vi
STATEMENT OF FACTS ......................................................... 1
SUMMARY OF THE STATE’S ARGUMENT ............................. 7
STATE’S ARGUMENT ............................................................. 8
Reply to Point One ................................................................. 8
   The trial court did not err in granting the State’s challenge for
   cause because the veniremember said he would hold the State to
   a higher burden of proof than required by law. .......................... 8
      Beyond a Reasonable Doubt ................................................. 9
      Appellant’s Case Law Inapplicable ....................................... 11
      Any Error Was Harmless..................................................... 12
Reply to Point Two ............................................................... 14
   The trial court did not err in admitting evidence of a bad act by
   Appellant because the bad act was same-transaction contextual
   evidence. ................................................................................ 14
      Admissible as Same–Transaction Contextual Evidence......... 15
      Admissible as Evidence of Flight ......................................... 18
      Admissible as Evidence of Intent ......................................... 20
      Admissible as Evidence of Identity....................................... 22
      Admissible Under Tex. R. Evid. 403 Balancing Test ............. 23
      Any Error Was Harmless..................................................... 25
          Appellant’s Trial Strategy Was Successful........................ 26
          Little Time Spent Developing Evidence............................. 28
          No Unfair Surprise or Lack of Notice................................ 29
          Overwhelming Evidence of Guilt ...................................... 30
          No Risk of Undue Punishment ........................................ 31
                                                 ii
          Conclusion ..................................................................... 32
PRAYER ............................................................................... 33
CERTIFICATE OF COMPLIANCE AND SERVICE.................. 34
Veniremember 12’s Responses ............................... Appendix A
Opinion: Devoe v. State, 354 S.W.3d 457...................... Appendix B




                                               iii
                               INDEX OF AUTHORITIES

    Cases
Alba v. State, 905 S.W.2d 581 (Tex. Crim. App. 1995)(overruled on
  other grounds).................................................................... 18, 19
Brown v. State, No. 07-99-2511-CR, 2000 Tex. App. LEXIS 7700
  (Tex. App. — Amarillo 2000, no pet.)(not designated for
  publication) ........................................................................ 29, 32
Chambers v. State, 866 S.W.2d 9 (Tex. Crim. App. 1993, cert. den’d)
   ................................................................................................. 9
Colburn v. State, 996 S.W.2d 511 (Tex. Crim. App. 1998) ............... 9
Coleman v. State, 881 S.W.2d 344 (Tex. Crim. App. 1994) ...... 10, 12
De La Paz v. State, 279 S.W.3d 336 (Tex. Crim. App. 2009) .......... 15
Devoe v. State, 354 S.W.3d 457 (Tex. Crim. App. 2014) ... 14, 15, 16,
  17, 18, 19
Gamboa v. State, 296 S.W.3d 574 (Tex. Crim. App. 2009) ............ 13
Geesa v. State, 820 S.W.2d 154 (Tex. Crim. App. 1991)................ 10
Jackson v. State, 822 S.W.2d 18 (Tex. Crim. App. 1990) .............. 10
Jacobs v. State, 787 S.W.2d 397 (Tex. Crim. App. 1990) ................ 8
Jessop v. State, 368 S.W.3d 653 Tex. App. — Austin 2012, no pet.)
   ............................................................................................... 15
Johnson v. State, 263 S.W.3d 405 (Tex. App. — Waco 2008, pet.
  ref’d)........................................................................................ 10
Jones v. State, 982 S.W.2d 386 (Tex. Crim. App. 1998) ................ 12
King v. State, 953 S.W.2d 266 (Tex. Crim. App. 1997) ...9, 26, 28, 30
Kotteakos v. United States, 328 U.S. 750 (1946)........................... 26
McCullen v. State, 372 S.W.2d 693 (Tex. Crim. App. 1963) ........... 22
Miller v. State, 667 S.W2d 773 (Tex. Crim. App. 1984).................. 22
Moses v. State, 105 S.W.3d 622 (Tex. Crim. App. 2003) ............... 18
Murphy v. State, 112 S.W.3d 592 (Tex. Crim. App. 2003) ............. 11
Narvaiz v. State, 840 S.W.2d 415 (Tex. Crim. App. 1992) ............... 8
Paulson v. State, 28 S.W.3d 570 (Tex. Crim. App. 2000) ............... 10
Pondexter v. State, 942 S.W.2d 577 (Tex. Crim. App. 1996) .......... 16
Prible v. State, 175 S.W.3d 724 (Tex. Crim. App. 2005) ................ 14
Reese v. State, 33 S.W.3d 238 (Tex. Crim. App. 2000) .................. 24
Rogers v. State, 853 S.W.2d 29 (Tex. Crim. App. 1993)................. 15
Wainwright v. Witt, 469 U.S. 412 (1985) ........................................ 9
Wyatt v. State, 23 S.W.3d 18 (Tex. Crim. App. 2000).................... 15

                                                    iv
    Statutes
Tex. Code Crim. Proc. Art. 35.16 ................................................... 8
Tex. Code Crim. Proc. Art. 37.07 ................................................. 32

     Rules
Tex. R. App. P. 44.2 .............................................................. 12, 26
Tex. R. Evid. 403 ........................................................................ 23
Tex. R. Evid. 404 ........................................................................ 18




                                               v
            STATEMENT REGARDING ORAL ARGUMENT

       The State believes that oral argument is unnecessary because

the facts and legal arguments are adequately presented in the briefs

filed by the parties. Therefore, the State is not requesting oral

argument.


                NOTE CONCERNING ABBREVIATIONS

       In this brief, the State refers to the Clerk's Record as “CR”

followed by the last three digits of the appellate cause number and

the page number (e.g., CR(-123) 456). The State refers to the

Reporter's Record as “RR” followed by the volume number and then

the page number (e.g., RR v.4, 567). Exhibits are referred to by “St.

Ex.” or “Def. Ex.” and the exhibit number (e.g., St. Ex. 123)


                       STATEMENT OF THE CASE

       Appellant was indicted in multiple counts and indictments for

several felony offenses, as follows: 1

   D-1-DC-13-200256

   Count 1        Aggravated Assault— Deadly Weapon                 2nd degree

   D-1-DC-13-200257

   Although the indictments in these cases list the counts using Roman
   1

numerals, for clarity the State will refer to the counts using Arabic numerals.
                                         vi
  Count 1       Attempted Capital Murder                    1st degree

  Count 2       Aggravated Assault— Public Servant          1st degree

  D-1-DC-13-200259

  Count 1       Aggravated Robbery                          1st degree

     Appellant pleaded not guilty. A jury trial took place in all three

Cause Numbers from October 13 to 17, 2014. CR(-722) 411; CR(-

723) 415; CR(-724) 136. Appellant was convicted of Aggravated

Assault— Deadly Weapon, Aggravated Assault— Public Servant,

and Aggravated Robbery. Id. Appellant was acquitted of Attempted

Capital Murder. CR(-723) 414. On October 20, 2014, the jury

assessed Appellant’s punishment at life imprisonment in each of

the three Cause Numbers. CR(-722) 421; CR(-723) 424; CR(-724)

147. Appellant filed a timely notice of appeal in each cause on

November 3, 2014. CR(-722) 433; CR(-723) 432; CR(-724) 159. The

trial court certified Appellant’s right to appeal on November 6, 2014.

CR(-722) 435; CR(-723) 438; CR(-724) 161.




                                   vii
    Nos. 03-14-00722-CR; 03-14-00723-CR; 03-14-00724-CR

            In the Court of Appeals for the Third District
                            Austin, Texas

                            Mark Fruge,
                             Appellant

                                  v.

                         The State of Texas,
                              Appellee

          Appeal from the 331st Judicial District Court
                     Travis County, Texas
     Cause Numbers D-1-DC-13-200256; D-1-DC-13-200257;
                      D-1-DC-13-200259
            Honorable Judge David Crain, Presiding

                           STATE’S BRIEF


To the Honorable Third Court of Appeals:

     Now comes the State of Texas and files this brief in response

to that of Appellant.


                        STATEMENT OF FACTS

     Abraham Martinez was an employee of the armored car

company Guarda. RR v.6, 267. Martinez carried a firearm as part of

his duties. Id. On January 14, 2013, he was working at an area




                                       1
known as Capital Plaza.2 RR v.6, 269. Capital Plaza is located at

5431 North I-35 Service Road. RR v.6, 248-9. One of the stores on

Martinez’s route was Fallas Discount. RR v.6, 270. Martinez entered

the Fallas Discount store and picked up the deposits. RR v.6, 271.

As he was leaving the store, he came around a pillar and there was

a person pointing a gun at him who said, “Give me your bag.” Id.

Martinez complied. The person also told Martinez to place his

weapon on the ground, which he did. Id. The man had on a dark

hoodie, dark jeans, and sunglasses. RR v.6, 271-2. The man put

Martinez’s firearm in the money deposit bag and headed toward the

exit of the Fallas Discount store. RR v.6, 272-3.

       Working near the exit of the Fallas Discount store was a

cashier named Ann Marie Lozano. RR v.7, 17. Lozano was checking

out a customer when she suddenly saw a man in front of her

pointing a gun in her face. Id. The man pulled the trigger and she

ducked as the man fired two more times. Id. Lozano ducked under

her counter until she heard everyone stop screaming. RR v.7, 17-8.

This aggravated assault on Lozano was witnessed by Martinez. RR

v.6, 273-4. It was also witnessed by Theresa Shanklin, another

   2   This location is misspelled in the record as “Capitol Plaza.”


                                            2
employee of Fallas Discount store. RR v.7, 43-4. The perpetrator

then left the Fallas Discount store, and Shanklin witnessed him

running toward the back of the Capital Plaza. RR v.7, 44. The police

arrived within ten minutes. Id.

     Austin Police Department (APD) Officer Roosevelt Granderson

was on patrol that day near the Embassy Suites Hotel when he

heard the call regarding a robbery in progress at Capital Plaza two

blocks away from his location. RR v.7, 79. While heading toward

Capital   Plaza,   Granderson     was       updated   by   radio   that   the

perpetrator was in a vehicle at Cameron Road and Highway (Hwy.)

290. RR v.7, 83. The perpetrator was reported to be in a silver

Mercury Grand Marquis. RR v.7, 84. APD Officer Aaron Pippin

joined the pursuit behind Granderson. RR v.7, 85. Granderson

observed the vehicle turning onto the Hwy. 183 service road from

the Hwy. 290 service road and began to pursue. Id.

   After some time, the perpetrator turned onto a little road that

runs behind an H-E-B grocery store at the Springdale Shopping

Center located off of the Hwy. 183 service road. RR v.7, 88. While

driving on that road, all of a sudden the perpetrator stopped. RR

v.7, 89. When the perpetrator stopped, Granderson tried to get out


                                        3
of his patrol car and draw his weapon. Id. As Granderson was about

to say, “Austin Police Department,” the perpetrator was already

getting out of his car. Id. The perpetrator had his gun, turned

around, and started firing. Id.

     Granderson ducked behind his car door as some of the rounds

the perpetrator fired shot out his patrol car window. RR v.7, 89-90.

Granderson drew his weapon and returned fire. RR v.7, 90. At the

same time, Pippin was trying to get his car stopped and draw his

weapon. RR v.7, 155. Pippin fired three rounds before holding his

fire to make certain he did not hit Granderson. RR v.7, 156. The

perpetrator ran in front of his vehicle into a wooded area and

Granderson pursued while trying to give a description over the

radio. Id. Pippin started to follow Granderson. Id. Granderson

pursued until the perpetrator reached a tree line, at which point he

shouted, “Austin Police, stop!” Id. At that moment, the perpetrator

turned around and pointed his weapon at Granderson, who dove to

the ground. Id. The perpetrator fired a couple more shots and then

took off into the tree line. Id.

     At that time Granderson began to feel a tingling in his knee.

Id. Pippin assisted Granderson in returning to their patrol cars. Id.


                                   4
Granderson’s corporal called for EMS, who arrived at the scene and

checked Granderson. Id. It was at that time Granderson learned

that he had a gunshot wound. Id. Granderson had been shot in the

right    knee.   RR   v.9,   33.   EMS   transported   Granderson   to

Brackenridge Hospital, where he underwent surgery for the gunshot

wound. RR v.7, 90.

        Richard Harris was an Assistant Manager at a Dollar General

store located on Manor Road, just west of Hwy. 183. RR v.8, 145.

On January 14, 2013 he was getting off of work at around 3:00

p.m. Id. When he was going to his car he noticed a man coming out

from behind the Dollar General building. Id. The man came over to

Harris’s car as he was getting in. Id. The man produced a pistol and

told Harris that they were going for a ride. RR v.8, 146. The man got

into the backseat and Harris began driving according to the man’s

directions. Id. They made their way to Old Manor Road, where the

man told Harris to pull over and the man left Harris’s car. Id.

During their time in the car, the man told Harris that his name was

Mark, that “he had done something that he shouldn’t have,” and

that he needed to get out of the area. RR v.8, 146-7. The entire

incident in Harris’s car took about fifteen minutes. RR v.8, 146.


                                     5
       APD Officer John Ridenour was one of the officers engaged in

the hunt for the perpetrator following the Fallas Discount store

robbery and the shootout with Granderson and Pippin. RR v.8, 163-

4. Ridenour ran the license plate of the perpetrator’s vehicle and it

returned to an address of 9345 East Highway 290 Apt. 13104, also

known as the Rosemont Apartments. RR v.8, 164-5.3 Ridenour

heard, over the radio, that the perpetrator had forced someone at

gunpoint to drive him to Old Manor Road. RR v.8, 167. Ridenour

knew this location to be right next to the Rosemont Apartments. Id.

Upon learning this information, Ridenour headed to Old Manor

Road and then the Rosemont Apartments. RR v.8, 169. Upon

arriving at the Rosemont Apartments, Ridenour spotted someone

matching the description of the perpetrator about one hundred

yards away from him. RR v.8, 170. Ridenour yelled at the

perpetrator to get his attention and the perpetrator ran back toward

one of the buildings in the complex. RR v.8, 173. Ridenour got the

attention of two nearby officers and then followed the perpetrator.

RR v.8, 174. As Ridenour turned to face the building and readied



   3 Although Ridenour testified that he was “not sure if it was 9435 or 9345,”
State’s Ex. 46 shows the address to be 9345 E. Hwy. 290.


                                         6
his rifle, the perpetrator popped up in the breezeway of the building.

Id. Ridenour gave the perpetrator instructions to put his hands up,

which he did. Id. The perpetrator dropped a sweatshirt he had been

holding. Id. The perpetrator complied with orders to get down on his

hands and knees, and other officers were able to handcuff him. Id.

Ridenour checked the sweatshirt and found a gun and U.S.

currency wrapped in plastic inside. RR v.8, 175.




              SUMMARY OF THE STATE’S ARGUMENT

Point One: Appellant argues that the trial court erred in granting a

State’s challenge for cause to a veniremember. Appellant argues

that granting the State’s challenge denied him a fair and impartial

jury.

        Reply: The trial court did not err in granting the State’s

challenge for cause because the veniremember said he would hold

the State to a higher burden of proof than required by law. If this

Court finds that the trial court did err, the error did not deprive

Appellant of a lawfully constituted jury.




                                    7
Point Two: Appellant argues that the trial court erred in allowing

the State to impeach a witness with Appellant’s prior bad act.

     Reply: The trial court did not err in admitting evidence of a

bad act by Appellant because the bad act was same-transaction

contextual evidence. If this Court finds the bad act was extraneous,

it was properly admitted for purposes other than to show propensity

or conformity. If this Court finds that the trial court did err, the

error did not affect Appellant’s substantial rights.


                        STATE’S ARGUMENT

                       REPLY TO POINT ONE

The trial court did not err in granting the State’s challenge for
cause because the veniremember said he would hold the State
to a higher burden of proof than required by law.



     The State may challenge a veniremember for cause who has a

bias or prejudice against any phase of the law upon which the State

is entitled to rely. Tex. Code Crim. Proc. Art. 35.16(b)(3). A

veniremember who would hold the State to a burden of proof higher

than beyond a reasonable doubt is challengeable for cause. Narvaiz

v. State, 840 S.W.2d 415, 427 (Tex. Crim. App. 1992); Jacobs v.

State, 787 S.W.2d 397, 404 (Tex. Crim. App. 1990). In reviewing the


                                     8
trial court’s decision to dismiss a veniremember upon a sustained

challenge for cause, considerable deference is given to the trial

court because it is in the best position to evaluate the

veniremember’s demeanor and responses. Wainwright v. Witt, 469

U.S. 412, 429 (1985); Chambers v. State, 866 S.W.2d 9, 22 (Tex.

Crim. App. 1993, cert. den’d). When a veniremember’s answers are

vacillating, unclear, or contradictory, particular deference is

accorded to the trial court’s decision. King v. State, 29 S.W.3d 556,

568 (Tex. Crim. App. 2000); Colburn v. State, 996 S.W.2d 511, 517

(Tex. Crim. App. 1998).

       In this case, the trial court excused Veniremember No. 12,

Jason Samaniego–Krant, for cause on the grounds that he would

hold the State to a burden of proof higher than beyond a reasonable

doubt.4




Beyond a Reasonable Doubt

       In Paulson v. State, the Court of Criminal Appeals dispensed

with the requirement that a jury charge give a definition of


   4Samaniego-Krant’s complete responses in the record are appended as
Appendix A.


                                      9
reasonable     doubt.   28   S.W.3d    570,   573   (Tex.   Crim.   App.

2000)(overruling Geesa v. State, 820 S.W.2d 154 (Tex. Crim. App.

1991)). However, it remains clear that reasonable doubt is not

“beyond all doubt,” “100 percent certain,” nor “absolute certainty.”

See Coleman v. State, 881 S.W.2d 344, 359-60 (Tex. Crim. App.

1994); Jackson v. State, 822 S.W.2d 18, 28 (Tex. Crim. App. 1990);

Johnson v. State, 263 S.W.3d 405, 417-8 (Tex. App. — Waco 2008,

pet. ref’d).

      Veniremember Samaniego–Krant stated, in his own words,

that he “would have to be absolutely certain.” RR v.6, 88-9. Further,

when asked if he would require 100 percent certainty he responded,

“Yeah.” RR v.6, 192. The trial prosecutor then explained the law

regarding the State’s burden of proof to which Samaniego–Krant

replied that he would need to be “pretty darn certain.” Id. At this

point, the trial court asked, “And when you say that, would you

need to be 100 percent certain?” Id. Samaniego–Krant

unequivocally answered, “Yes.” Id. He also said that he would not

hold the State to a higher burden of proof. RR v.6, 194. And, he also

answered a question from trial counsel about the State’s burden of

proof by referring to the presumption of innocence. RR v.6, 193.


                                      10
     Samaniego-Krant repeatedly gave answers indicating he would

hold the State to a burden of proof of 100 percent certainty.

Although some of his answers were also vacillating and

contradictory, the trial court was in the best position to evaluate his

demeanor and responses. The trial court determined that he could

not follow the law, and deference should be given to the trial court’s

determination.




Appellant’s Case Law Inapplicable

     Appellant argues that “prospective jurors may form their own

definitions of proof beyond a reasonable doubt” and cites Murphy v.

State, 112 S.W.3d 592 (Tex. Crim. App. 2003) and Garrett v. State,

851 S.W.2d 853 (Tex. Crim. App. 1993).        However, both of those

cases dealt with a jury’s consideration of future dangerousness

(special issue number two) in a death penalty case.

      The Court of Criminal Appeals distinguished consideration of

future dangerousness from the definition of beyond a reasonable

doubt at guilt-innocence:

          “In Garrett, this Court held a veniremember is not
     subject to challenge for cause simply because the


                                   11
     veniremember would set his reasonable doubt threshold
     higher than the legal minimum in order to affirmatively
     answer     special issue    two.   Garrett is   clearly
     distinguishable because the trial court was entitled to
     find [the veniremember] would not find appellant guilty
     even if the State proved its case beyond a reasonable
     doubt.”

Coleman v. State, 881 S.W.2d 344, 360 (Tex. Crim. App. 1994).

     Therefore, this is not just a matter of “higher threshold”, as

Appellant claims. Rather, Appellant’s position would allow any

veniremember to hold the State to a higher burden by simply

making his or her personal definition of “beyond a reasonable

doubt” be “100 percent certainty” or “beyond all doubt.”




Any Error Was Harmless

     The issue in this case is an application of Article 35.16(b)(3),

so it is not of constitutional dimension and any error must be

disregarded unless it affected substantial rights. Tex. R. App. P.

44.2(b); Jones v. State, 982 S.W.2d 386, 391-92 (Tex. Crim. App.

1998). In the context of erroneous exclusions of veniremembers,

this means that the record must show that “the error deprived the

defendant of a lawfully constituted jury.” Jones, 982 S.W.2d at 394.



                                  12
     Appellant asks this Court to find that any error in excluding

Veniremember Samaniego–Krant is not subject to a harmless error

review. However, Appellant relies upon authority that is specific to

excluding veniremembers based upon their views on the death

penalty in death penalty cases. Moreover, Appellant’s claim has

already been expressly rejected by the Court of Criminal Appeals:

          “Appellant relies on Gray v. Mississippi to support
     his position. But the Supreme Court has explained that
     the broad language in Gray was too sweeping to be
     applied literally and should not be extended beyond the
     context of the “‘erroneous Witherspoon exclusion’ of a
     qualified juror in a capital case.” This Court has also held
     that, when Witherspoon error is not at issue, the
     erroneous excusal of a veniremember will call for reversal
     “only if the record shows that the error deprived the
     defendant of a lawfully constituted jury.” Under Jones,
     the question is whether or not the jurors who actually sat
     were impartial.”

Gamboa v. State, 296 S.W.3d 574, 590 (Tex. Crim. App. 2009)
(internal footnotes omitted).

     Appellant points to no evidence in the record, and has made

no showing of any kind, that the exclusion of Samaniego–Krant

deprived him of a lawfully constituted jury or that the jurors who

actually sat were not impartial. Therefore, even if the trial court

erred in granting the State’s challenge for cause on Samaniego–




                                   13
Krant, Appellant’s substantial rights were not affected, and the

judgment should be affirmed.




                           REPLY TO POINT TWO

The trial court did not err in admitting evidence of a bad act by
Appellant because the bad act was same-transaction contextual
evidence.



       Appellant argues that the trial court erred in admitting

evidence of the aggravated kidnapping of Richard Harris.5

       A trial court’s ruling on the admissibility of evidence is

reviewed under an abuse-of-discretion standard. Devoe v. State,

354 S.W.3d 457, 469 (Tex. Crim. App. 2014); Prible v. State, 175

S.W.3d 724, 731 (Tex. Crim. App. 2005). As long as the trial court's

ruling is within the "zone of reasonable disagreement," there is no

abuse of discretion, and the trial court’s ruling will be upheld.

Devoe, 354 S.W.3d at 469; Prible, 175 S.W.3d at 731. Moreover, if a

trial court’s evidentiary ruling is correct on any applicable theory of

law, it will not be disturbed, even if the trial judge gave the wrong



   5   Discussed in detail in the Statement of Facts on page 5.


                                          14
reason for his correct ruling. Devoe, 354 S.W.3d at 469; Jessop v.

State, 368 S.W.3d 653, 686 (Tex. App. — Austin 2012, no pet.).




Admissible as Same–Transaction Contextual Evidence6

       Evidence of another crime, wrong, or act is admissible as

same–transaction contextual evidence where “several crimes are

intermixed, or blended with one another, or connected so that they

form an indivisible criminal transaction, and full proof by

testimony… of any one of them cannot be given without showing

the others.” Devoe, 354 S.W.3d at 469; Wyatt v. State, 23 S.W.3d

18, 25 (Tex. Crim. App. 2000)(quoting Rogers v. State, 853 S.W.2d

29, 33 (Tex. Crim. App. 1993)). The jury is entitled to know all

relevant surrounding facts and circumstances of the charged

offense. Devoe, 354 S.W.3d at 469. Under Rule 404(b), same–

transaction contextual evidence is admissible when the offense

would make little or no sense without also bringing in that

evidence. Devoe, 354 S.W.3d at 469; Wyatt, 23 S.W.3d at 25

   6  Appellant asserts that he was never charged with this crime. Appellant’s
Brief, 12. However, the record indicates that Appellant was in fact charged with
this offense in Cause No. D-1-DC-15-200255. RR v.3, 4. For consistency, the
State will refer to the incident involving Mr. Harris as “the aggravated
kidnapping.”


                                        15
(quoting Pondexter v. State, 942 S.W.2d 577, 584 (Tex. Crim. App.

1996)).

       The facts of this case are very similar to those in Devoe.7 In

Devoe, the Court of Criminal Appeals found that a theft of a gun, an

aggravated assault, and a theft of a truck in Llano, Texas; a murder

and attempted murder in a bar in Marble Falls, Texas; four

murders in a residence in Jonestown, Texas; and a theft of a car at

another residence in Greencastle, Pennsylvania, all constituted one

extended criminal episode. Devoe, 354 S.W.3d at 462-65. These

offenses covered a period of two days, from August 24th through

August 26th. Id. Devoe was tried for two of the murders in

Jonestown, but the Court of Criminal Appeals found that the entire

chain of events was admissible same–transaction contextual

evidence because the evidence was intermingled between all of the

events and Devoe did not rest between incidents. Id. at 470.

       That is the situation in the cases before this Court. Appellant

committed one offense after another, in a continuous episode, and

without rest in between incidents. The weapons and stolen property



   7Given the lengthy exposition of facts in the Devoe opinion, it has been
appended as Appendix B.


                                        16
from each incident were used or linked with each subsequent

incident. Evidence of the aggravated kidnapping of Harris was

necessary for the jury to understand the prolonged criminal episode

and to explain the timeline from the aggravated robbery at the

Fallas Discount store to when Appellant fled back to the Rosemont

Apartments where he was ultimately captured by police. The

aggravated kidnapping explains how Appellant got to his

apartment, and excluding it would have put a damaging hole in the

State’s case.

     Appellant also contends that “evidence of the charged offense

was presented in its entirety prior to the extraneous offense.”

Appellant’s Brief, 15. However, this does not preclude the

admissibility of same–transaction contextual evidence. In Devoe, the

murders for which the defendant was tried occurred days before the

other offenses were committed, but the Court of Criminal Appeals

still found those subsequent offenses to be admissible as same–

transaction contextual evidence. 354 S.W.3d at 462-5.




                                   17
Admissible as Evidence of Flight

     Evidence of extraneous offenses is not admissible at the guilt

phase of a trial to prove that a defendant committed the charged

offense in conformity with a bad character. Tex. R. Evid. 404(b);

Devoe, 354 S.W.3d at 469. However, extraneous offense evidence

may be admissible when it has relevance apart from character

conformity. Devoe, 354 S.W.3d at 469; Moses v. State, 105 S.W.3d

622, 626 (Tex. Crim. App. 2003). For example, it may be admissible

to show proof of motive, opportunity, intent, preparation, plan,

knowledge, identity, or absence of mistake or accident. Id.

     Even if this Court finds that the aggravated kidnapping was

not same–transaction contextual evidence, the aggravated

kidnapping was admissible as evidence of Appellant’s flight. It is

axiomatic that flight is admissible as a circumstance from which an

inference of guilt may be drawn. Devoe, 354 S.W.3d at 470; Alba v.

State, 905 S.W.2d 581, 586 (Tex. Crim. App. 1995)(overruled on

other grounds). If the extraneous offense is shown to be a

necessarily related circumstance of the defendant's flight, it may be

admitted to the jury. Id.




                                   18
     The cases before this Court again mirror the situation in

Devoe. In Devoe, the theft of the vehicle from Betty DeHart in

Greencastle, Pennsylvania was some two days after the murders for

which Devoe was tried. Devoe, 354 S.W.3d at 463-5. Devoe was

apprehended, after his flight with DeHart’s vehicle, with evidence

from his other crimes. Id. at 470. As in Devoe, Appellant was

apprehended after the aggravated kidnapping with evidence from

the other offenses he had committed that day.

     In Alba, in which the court ruled that an extraneous offense

was admissible as evidence of flight, the appellant forced two men

to give him a ride in a car by showing a gun to one of them. Alba,

905 S.W.2d at 586. This incident occurred within an hour after

Alba had committed murder, deceived a police officer when he left

the crime scene, and abandoned his own car. Id.

     The situation in the cases before this Court is even more

tightly intertwined than the offenses in Alba. The aggravated

kidnapping occurred immediately after Appellant abandoned his

own car while engaging in a shootout with Officers Granderson and

Pippin. The timeline in this case is even more compressed than

those in Devoe and Alba, making the evidence of Appellant’s flight


                                  19
by the aggravated kidnapping of Mr. Harris even more relevant and

probative.




Admissible as Evidence of Intent

     The aggravated kidnapping was also admissible as evidence of

Appellant’s intent. The key issue at trial was whether or not

Appellant had the specific intent to commit capital murder. Trial

counsel laid the ground work for this strategy during jury selection.

RR v.6, 145-150. Trial counsel specifically explored the situation of

someone shooting towards others while running from them. Id. Trial

counsel asked the venire panel, in that situation, “[i]s his intent to

slow them down or to hit them?” RR v.6, 146. Later, trial counsel

posed a rhetorical question to the venire panel, asking “Is his intent

to get away or is his intent to shoot somebody?” RR v.6, 147. Trial

counsel then asked “[i]f it’s not his intent, is it knowingly when he’s

doing that?” RR v.6, 148.

     Trial counsel raised this theory during the State’s case-in-chief

on cross-examination of the State’s witnesses. Trial counsel asked

Officer Granderson questions about whether firing a weapon while




                                   20
moving decreases one’s chances of hitting the target. RRv.7, 115,

117. Trial counsel asked similar question on cross-examination of

APD Detective Carlos Vallejo. RR v.7, 135-36.

     During his testimony, Appellant admitted committing all of the

offenses for which he was on trial, except Attempted Capital

Murder. RR v.9, 55-66. When asked if it was his intent to shoot the

officers, he answered “[n]o, sir. I wasn’t trying to hurt anyone.” RR

v.9, 65. Appellant claimed that he was not trying to shoot the

officer, but that he “fired some shells over the car to get them to

shoot at me.” RR v.9, 59.

     Furthermore,    on     cross-examination   Appellant   specifically

admitted to committing the offenses of aggravated robbery, and

aggravated assault with a deadly weapon. RR v.9, 73-4. Appellant

then answered questions that confirmed each element of the offense

of aggravated assault against a public servant. RR v.9, 77-82.

However, he continued to maintain his innocence with regard to the

Attempted Capital Murder Charge, stating, “[m]y intention was not

to hurt anyone.” RR v.9, 79.

     Appellant claimed he only set out that day to get police officers

to kill him. RR v. 9, 55. He claimed throughout his testimony that


                                    21
his conduct that day was intended not to hurt anyone, but to bring

the police to his location. RR v. 9, 55, 57-59. However, when the

aggravated kidnapping occurred, Appellant had already

encountered and eluded the police. RR v.9, 60. Therefore, the

aggravated kidnapping evidence was highly probative to prove that

Appellant’s intent was not to draw the police to him, since he had

already done so, but rather to get away from the police.

     Given that Appellant’s strategy put his lack of intent to commit

capital murder at the center of the trial, evidence of the aggravated

kidnapping was admissible to prove his intent.




Admissible as Evidence of Identity

     The aggravated kidnapping was also admissible as evidence of

Appellant’s identity. Identity is an element of an offense that the

State must prove beyond a reasonable doubt. See Miller v. State,

667 S.W2d 773, 775 (Tex. Crim. App. 1984); McCullen v. State, 372

S.W.2d 693, 695 (Tex. Crim. App. 1963).

     There was specific evidence related to proving the element of

identity that occurred during the aggravated kidnapping offense.



                                  22
While in the car and forcing Harris to drive at Appellant’s direction,

Appellant told Harris that “his name was Mark and he had done

something that he shouldn’t have, but he needed to get out of the

area.” RR v.8, 147. This admission was highly probative evidence

that Appellant, who was not apprehended until the Rosemont

Apartments, was the person who had committed the initial

aggravated robbery at the Fallas Discount Store. As Appellant

successfully escaped from the scene of every offense he committed

until he was apprehended at the Rosemont Apartments, it was

important for the State to account for every possible moment

between Appellant’s arrival at the Fallas Discount store and his

apprehension.




Admissible Under Tex. R. Evid. 403 Balancing Test

     The probative value of the aggravated kidnapping evidence was

not substantially outweighed by the danger of unfair prejudice. Tex.

R. Evid. 403. In conducting a Rule 403 analysis, courts should

consider: (1) how probative is the evidence; (2) the potential of the

evidence to impress the jury in some irrational, but nevertheless



                                    23
indelible way; (3) the time the proponent needs to develop the

evidence; and (4) the proponent's need for the evidence. Reese v.

State, 33 S.W.3d 238, 240-41 (Tex. Crim. App. 2000).

       In the case before the Court, the aggravated kidnapping

evidence was highly probative of Appellant’s identity and intent. The

aggravated kidnapping evidence’s probative nature as to identity

and intent are discussed in the immediately preceding sections.8

       The potential for the aggravated kidnapping evidence to

impress the jury in an irrational but indelible manner is very low.

The aggravated kidnapping evidence was a small part of Appellant’s

conduct that day. Further, it was far less egregious than the other

evidence the jury had already heard concerning the events in the

Fallas Discount store and at the H-E-B. In both of those instances,

Appellant actually discharged his firearm and even shot one victim,

Granderson. By contrast, Harris was unharmed and Appellant did

not fire his weapon during the aggravated kidnapping.

       Very little time was devoted to introducing the evidence of the

aggravated kidnapping. The aggravated kidnapping evidence was

introduced through a single witness, Harris, while there were

   8   Discussed on page 20-23.


                                    24
seventeen total witnesses in the State’s case–in–chief.9 It also

involved the use of four exhibits out of some three hundred twenty-

six exhibits introduced by the State in the guilt-innocence phase.10

       The State had great need for the evidence. It was the only

evidence that permitted the State to account for the time gap

between the end of the shootout with Granderson and Pippin at the

H-E-B and Appellant’s capture at the Rosemont Apartments. It was

also the only evidence of continued violent conduct after escaping

the police, which made it unique in proving Appellant’s intent.

       Upon consideration of the Rule 403 balancing test factors, the

probative value of the aggravated kidnapping evidence was not

substantially outweighed by the danger of unfair prejudice.




Any Error Was Harmless

       If this Court finds that the trial court did abuse its discretion

and that admission of the aggravated kidnapping evidence was

error, this Court should not reverse unless it finds that the error

   9  One other witness, Susan O’Dell Gibson, testified to processing Harris’s
car for evidence but gave no testimony as to the facts of the aggravated
kidnapping. RR v.7, 69-70.
    10 Three exhibits, State’s Ex. 218-220, were introduced through Harris. One

exhibit, State’s Ex. 132, was shown to Harris but had already been introduced.


                                       25
affected Appellant’s substantial rights. Tex. R. App. P. 44.2(b). A

substantial right is affected when the error had a substantial and

injurious effect or influence in determining the jury’s verdict. King v.

State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997)(citing Kotteakos

v. United States, 328 U.S. 750, 776 (1946)). In these cases, the

Court should find that Appellant’s substantial rights were not

affected.11




        Appellant’s Trial Strategy Was Successful

        Appellant’s trial strategy was to admit that he was guilty of

Aggravated Robbery, Aggravated Assault, and Aggravated Assault

Against a Public Servant, but deny that he had the requisite specific

intent to commit the offense of Attempted Capital Murder.12 RR v.9,

55-66, 74-75, 79.         Appellant was acquitted by the jury of the


   11  Appellant asserts that the State “introduced photos early in the guilt
innocence phase of trial labeled ‘car jacking.’” Appellant’s Brief, 12. This is an
erroneous assertion. After searching the record, the State found no exhibits
labeled “car-jacking.” Nor were there any exhibits marked with “aggravated
kidnapping.”
    12 Appellant makes no claim that the admission of the aggravated

kidnapping evidence in any way influenced his decision to testify. Indeed,
Appellant’s direct testimony covers some fourteen pages of the record, of which
only three and one-fifth pages relate to the aggravated kidnapping. Appellant’s
cross-examination testimony covers nine and two-fifths pages of the record, of
which one question mentions the aggravated kidnapping.


                                         26
Attempted Capital Murder count. CR(-257) 413-14. Therefore, if it

was error to admit the aggravated robbery evidence, there was no

harm to Appellant because his trial strategy still succeeded.

     In fact, his testimony about the aggravated kidnapping helped

his trial strategy. In an effort to support his strategy, he testified

numerous times about how he did not harm, or intend to harm,

other victims and witnesses that day. RR v.9, 57, 62-64.

     Appellant also specifically testified that he “didn’t threaten”

Harris. RR v.9, 60. He added that he told Harris his first name

because he “was trying to make him feel at ease” and “just trying to

make him feel” that Appellant “wasn’t going to hurt him...” RR v.9,

61. Appellant also testified that he did not point his gun at Harris,

but just showed it to him and then put it in his pocket. RR v.9, 66.

     Additionally, trial counsel advanced this strategy during

closing argument. Trial counsel devoted some five pages, out of

twelve in the record, to arguing that the State had failed to prove

the element of specific intent on the Attempted Capital Murder

charge. RR v.9, 115-120. Trial counsel later returned to that issue

once more. RR v.9, 124. Finally, trial counsel told the jury that,

unlike Attempted Capital Murder, Appellant was guilty of the


                                   27
Aggravated Assault of a Public Servant count because “that’s the

proper charge.” RR v.9, 120.

        Therefore, if it was error to admit the aggravated kidnapping

evidence, there was no harm to Appellant because he was acquitted

of the one count on which he maintained his innocence throughout

the trial.




        Little Time Spent Developing Evidence

        It took very little time to introduce evidence of the aggravated

kidnapping. Harris’s testimony and the exhibits are previously

mentioned.13 The State mentioned the aggravated kidnapping

evidence once during cross-examination of the Appellant. RR v.9,

75. The evidence of the aggravated kidnapping was mentioned only

once by the State in closing argument. RR v.9, 128. The aggravated

kidnapping      evidence    was    never    mentioned   as   character   or

propensity evidence. See King, 953 S.W.3d at 273 (“that the State

did not emphasize the reports minimizes the deleterious effect, if

any, the documents had on the jury’s decision.”); Rodriguez, 974



   13   Discussed on page 24-25.


                                       28
S.W.2d at 370 (“Furthermore, no one mentioned the inadmissible

evidence again during the guilt/innocence phase of the trial. So, the

extent to which the jury may have recalled and assigned it weight is

questionable.”).




     No Unfair Surprise or Lack of Notice

     Nor was Appellant unfairly surprised by the State’s offering of

the aggravated kidnapping evidence at trial. See Brown v. State, No.

07-99-2511-CR, 2000 Tex. App. LEXIS 7700, at *12 (Tex. App. —

Amarillo 2000, no pet.)(not designated for publication)(“Moreover,

the admission of the extraneous evidence was not unannounced or

surprising. Quite the contrary, the State received permission from

the court to present it before doing so. Thus, reversal is not needed

as punishment to assure the State's compliance with the rules of

evidence.”) Appellant makes no claim of being surprised by the

evidence of the aggravated kidnapping. Rather, the record reflects

that Appellant was specifically advised of the State’s intent to try to

introduce the aggravated kidnapping evidence at trial. RR v.8, 141.




                                   29
Appellant had more than five months’ advance notice that this

evidence might be introduced at trial. CR(–256) 144-46.




     Overwhelming Evidence of Guilt

     Further, there was overwhelming evidence of Appellant’s guilt.

See King, 953 S.W.2d at 273 (“While the case summaries and

disciplinary reports did contain some potentially harmful evidence,

that evidence was rendered insignificant by properly admitted

evidence of future dangerousness.”); Rodriguez, 974 S.W.2d at 370

(“Finally, though it was not free of conflict, ample evidence was

properly admitted which depicted appellant's guilt.”) As mentioned

above, sixteen witnesses and some three hundred twenty-two

exhibits were introduced in the State’s case-in-chief, separate from

any aggravated kidnapping evidence. Additionally, Appellant took

the stand and admitted committing the Aggravated Robbery, the

Aggravated Assault with Deadly Weapon, and the Aggravated

Assault Against a Public Servant. RR v.8, 56-59, 63-65, 73, 78-81.

     Numerous witnesses identified Appellant as the perpetrator of

each offense. From the Fallas Discount store scene, Lozano and



                                  30
Shanklin identified Appellant as the person who robbed Martinez

and shot at Lozano and her register. RR v.7, 21, 45. From the crime

scene at the H-E-B, Pippin identified Appellant as the person who

engaged in a shootout with himself and Granderson. RR v.7, 158-

59. From the Rosemont Apartments scene, Ridenour identified

Appellant as the person he chased and took into custody. RR v.8,

175-76. The stolen bag holding the money and Martinez’s gun were

found in Appellant’s vehicle. RR v.7, 123-24. There was also an item

found in Appellant’s vehicle that had his name and the Rosemont

Apartment address on it. RR v.7, 124. Appellant’s vehicle was

linked to him through testimony and registration records. RR v.8,

108-110, 165, 186-88; St. Ex. 46. The money stolen from Martinez

and Appellant’s own gun, which matched the type of magazine

found in his vehicle, were found on Appellant. RR v.8, 181-85.

Therefore, the evidence of Appellant’s guilt was overwhelming.




     No Risk of Undue Punishment

     Evidence of the aggravated kidnapping was admissible during

the punishment phase of trial, and was so in the form that it came



                                   31
into evidence during guilt-innocence (i.e., the testimony of Harris

and exhibits). Tex. Code Crim. Proc. Art. 37.07; Brown, 2000 Tex.

App. LEXIS 7700 at 12. Therefore, it cannot be said that the

aggravated kidnapping evidence somehow induced the jury to

assess undue punishment. Brown, 2000 Tex. App. LEXIS 7700 at

12.




      Conclusion

      These combined factors show that, even if admission of the

aggravated kidnapping evidence was error, Appellant’s substantial

rights were not affected and the judgment should be affirmed.




                                  32
                              PRAYER

  The State requests that this Court overrule Appellant’s points of

error and affirm the trial court’s judgment.



                                Respectfully submitted,

                                Rosemary Lehmberg
                                District Attorney
                                Travis County


                                /s/ Matthew Foye
                                Matthew Foye
                                Assistant District Attorney
                                State Bar No. 24043661
                                P.O. Box 1748
                                Austin, Texas 78767
                                512-854-9400 (phone)
                                512-854-4810 (fax)
                                Matthew.Foye@traviscountytx.gov
                                AppellateTCDA@traviscountytx.gov




                                   33
         CERTIFICATE OF COMPLIANCE AND SERVICE

  I certify that this brief contains 5,957 words, based upon the

computer program used to generate this brief and excluding words

contained in those parts of the brief that Texas Rule of Appellate

Procedure 9.4(i) exempts from inclusion in the word count, and that

this brief is printed in a conventional, 14-point typeface.

  I further certify that, on the 28th day of October, 2015, a true and

correct copy of this brief was served, by U.S. mail, electronic mail,

telephonic document transmission, or electronically through the

electronic filing manager, to Appellant’s attorney, Ariel Payan, 1012

Rio Grande Street, Austin, Texas 78701.



                           /s/ Matthew Foye
                           Matthew Foye
                           Assistant District Attorney




                                    34
        Appendix A
Veniremember 12’s Responses
                                                                            88


1 kind of tricky where people kind of may feel like -- for
2 me it feels like beyond a reasonable doubt is to be like
3 certain -- to me.      And so that kind of thing is okay.
4                I'm just saying that if you were sitting
5 at the end of the day after hearing all the evidence and
6 you said, Well, there's this one little doubt over here
7 and it's not even reasonable, because it would involve
8 martians coming in a spaceship; but it's a doubt so you
9 have to find him not guilty.             That's the kind of thing
10 -- that's an extreme example, but that's the sort of
11 thing that we're talking about.              You-all feel, like, you
12 could hear all the evidence and if you are convinced
13 beyond a reasonable doubt that you would be able to
14 return a verdict of guilty?
15               MS. CHRISTIANSEN:                That, yes.
16               MR. MORRIS:           Yeah, I can find a reason.
17               MR. FOYE:          What's that?
18               MR. MORRIS:           Yeah, I could.
19               MR. FOYE:          Good.       Excellent.          Okay.
20               So based on that kind of clarification,
21 Row 2, anyone who would still want me to prove it beyond
22 all possible doubt?
23               No. 12?
24               MR. SAMANIEGO-KRANT:                  I believe that
25 we've been talking about incarceration, taking years of



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1 someone's life that I would have to be absolutely
2 certain.     The level of false convictions are incorrect,
3 and with convictions these days I would feel horrible
4 about sending someone to prison for something that was
5 doubtful.
6                     MR. FOYE:         Okay.       Thank you.          Anyone
7 else?     Row 2?
8                     VENIRE PANEL:            (No response)
9                     MR. FOYE:         Row 3, anyone?
10                    VENIRE PANEL:            (No response)
11                    MR. FOYE:         Okay.       Row 4 is Mr. Bidwell.
12 You feel you would want to know all about it?
13                    MR. BIDWELL:           (Nods head)
14                    MR. FOYE:         Okay.       Thank you.
15                    Now, Row 5, anyone?                Ms. Janssen?
16                    MS. JANSSEN:           Same thing.
17                    MR. FOYE:         Same thing as 12?
18                    MS. JANSSEN:           Yes.
19                    MR. FOYE:         Okay.       And Row 6, anyone back
20 there?
21                    VENIRE PANEL:            (No response)
22                    MR. FOYE:         And Row 7?
23                    VENIRE PANEL:            (No response)
24                    MR. FOYE:         Anyone on this side of the
25 room?



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1 officer comes in and says, no, this is what happened.
2 And you just go with the officer because they're on the
3 side of truth and the other person has to be lying, it's
4 just not always like that.             It's not black and white
5 like that, but I think that's what we expect things to
6 be.
7                   Yes, sir, Mr. -- 27?
8                   MR. COLE:         27, Cole.          You know, since
9 we're talking about that case right there, I feel like
10 the prosecutor did provide the evidence because of a
11 sworn police officer who is also sworn in court and he
12 had the instrument to speak of.
13                  Also, to me, reasonable doubt, nobody is
14 just -- I feel I've had those kind of tickets, too, but
15 it's very easy to accidentally rest your foot on the
16 accelerator and perhaps increase the speed of your car
17 that is under cruise control.               So there's reasonable
18 doubt right there that they may have been going 93 and
19 just didn't realize it.
20                  MR. HILDRETH:            Okay.       Well, see,
21 here's -- you're going the opposite way.                       The Defense
22 doesn't have to establish reasonable doubt about the
23 State's case.    We just have to attack it.
24                  What the law requires is the State prove
25 their burden beyond a reasonable doubt.                      And what I mean



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1 is there can be no other reasonable explanation.                      So now
2 the definition of what is reasonable?                    I mean -- yes,
3 sir, No. 12?
4                  MR. SAMANIEGO-KRANT:                 It just kind of
5 sounds to me like in talking about reasonable doubt, it
6 almost sounds to me like you're trying to prove
7 innocence instead of proving guilty.                    It just sounds
8 backwards to me like you're trying to prove innocence
9 -- you're guilty until proven innocent.                      It just sounds
10 like that to me.
11                 MR. HILDRETH:            Okay.       Let me ask you
12 this.   When you all walked in, who looked at the tables
13 and tried to figure out who the defendant was?
14                 VENIRE PANEL:            (Indicating)
15                 MR. HILDRETH:            I know that's normal human
16 behavior, sure.
17                 Okay, Mr. Custer, did you determine who
18 the defendant was?
19                 MR. CUSTER:          Yes, sir.
20                 MR. HILDRETH:            Okay.       And did you wonder
21 what he did?
22                 MR. CUSTER:          Yes, sir.
23                 MR. HILDRETH:            Who else wondered what he
24 did?    Raise your hands high.
25                 VENIRE PANEL:            (Indicating)



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1 not --
2                   THE COURT:       Did he come up here to talk
3 to about something?
4                   MR. LEVINGSTON:           He was in hospice care
5 for his dog.
6                   THE COURT:       The first time he said it, I
7 thought it was his --
8                   MS. CHEN-KERCHER:             A person.
9                   THE COURT:       -- 16-year-old, I figured
10 must have been a brother or sister.
11                  MR. HILDRETH:          Yeah.       I think that's what
12 he wanted when he --
13                  MR. FOYE:       He did.        He said a close
14 family member.    A 16-year-old --
15                  THE COURT:       It's his dog.
16                  MR. FOYE:       I mean, it's impressive the
17 dog is 16 years old, but I didn't --
18                  (Discussion off record)
19                  THE COURT:       Okay.        Mr. Samaniego-Krant,
20 can you come up to the bench close enough for us to talk
21 to you?   Can you -- can one of you-all illuminate the
22 area you want to talk about?
23                  (Venire Member No. 12, Mr.
24 Samaniego-Krant, approached bench)
25                  MR. LEVINGSTON:           Yeah, Judge, if I may?



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1                 Mr. Samaniego, I know when Mr. Foye was
2 questioning you about the burden of proof and reasonable
3 doubt and beyond a reasonable doubt, you had made the
4 comment that you would need to be 100 percent certain.
5                 MR. SAMANIEGO-KRANT:                 Yeah.
6                 MR. LEVINGSTON:             And you understand that
7 the law is beyond a reasonable doubt.                   There is actually
8 -- while there is no definition for beyond a reasonable
9 doubt, there is case law that says it's not 100 percent
10 certainty.   Would you be able to follow the law and
11 listen to a case and determine guilt or innocence based
12 on beyond a reasonable doubt, or would you need 100
13 percent certainty?
14                MR. SAMANIEGO-KRANT:                 In my personal
15 beliefs, spirituality and opinion I just feel that I'm
16 taking into consideration someone else's livelihood, I
17 would need to be pretty darn certain.
18                THE COURT:         Okay.        And when you say that,
19 would you need to be 100 percent certain?
20                MR. SAMANIEGO-KRANT:                 Yes.
21                MR. LEVINGSTON:             Okay.       No questions,
22 Judge.
23                THE COURT:         Did you have any backup
24 questions?
25                MR. HILDRETH:            When you say "100 percent



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1 certain," are you attributing that to beyond a
2 reasonable doubt level or -- I'm not sure what --
3 because you say you have to be pretty confident.
4                 MR. SAMANIEGO-KRANT:                 If I'm going to
5 commit (sic) somebody to a crime, then I would want to
6 be 100 percent certain that that crime was committed
7 beyond a reasonable doubt.
8                 MR. HILDRETH:            Okay.       And is that what
9 you require -- are you -- there is not percentage to
10 beyond a reasonable doubt.          Now, for some people it
11 might be 100 percent.
12                MR. SAMANIEGO-KRANT:                 Right.
13                MR. HILDRETH:            The point is, are you
14 going to hold the State to its burden, or are you going
15 to require the State to a higher burden than what
16 they're required?
17                MR. SAMANIEGO-KRANT:                 I would hold
18 someone innocent until proven guilty, not the other way
19 around, which to me is how it sounds with our
20 discussion.   It sounds like people are trying to prove
21 innocence instead of guilt.
22                MR. HILDRETH:            Okay.
23                MR. SAMANIEGO-KRANT:                 So I'm -- yes.     I
24 mean --
25                MR. HILDRETH:            Are you going to require



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1 the State -- to hold the State to a higher burden of
2 proof than beyond a reasonable doubt?
3                   MR. SAMANIEGO-KRANT:                 No.
4                   MR. HILDRETH:            Okay.       I have no further
5 questions.
6                   THE COURT:         All right.           You can step back
7 outside.     Thanks.
8                   (Venire Member No. 12, Mr.
9 Samaniego-Krant, approached bench) exited courtroom)
10                  THE COURT:         Okay.        Now, what about
11 Custer, No. 13?       We're going to get back to him.               No
12 motions on Custer?
13                  MR. HILDRETH:             Nothing on 13.
14                  THE COURT:         Edwards?
15                  MR. HILDRETH:            No, sir.
16                  THE COURT:         Okay.        Did you-all want to
17 talk -- does the State still have a motion to strike?
18                  MR. LEVINGSTON:             I do, Judge.
19                  THE COURT:         What does was the Defense say
20 on Samaniego?
21                  MR. HILDRETH:            We're going to object to
22 that.   He said he would would hold the State to its
23 burden and not more.
24                  THE COURT:         Okay.        But he said 100
25 percent three times, so I'll grant the State's motion to



                           R A QU E L K OC H E R , C S R
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                                                                               195


1 strike for cause.        I think he won't follow the law that
2 they're entitled to follow.
3                   (Venire Member No. 12, Mr.
4 Samaniego-Krant, struck for cause)
5                   THE COURT:         So 13 and 14 are good.                Kelly
6 Hayden, any motions?
7                   (No response)
8                   THE COURT:         Scott Broaddus, any motions?
9                   MR. HILDRETH:            Yes, Your Honor.          He said
10 he would have a bias against the State -- I mean, excuse
11 me against the defendant and has a bias for law
12 enforcement.
13                  MR. LEVINGSTON:             I agree, Judge.
14                  THE COURT:         You agree to strike him for
15 cause?
16                  MR. LEVINGSTON:             I do.
17                  THE COURT:         Swan, No. 17?             18, Flores?
18 19, Buckner?    20 is excused.            JoAnn Parks, 21?          Darin
19 Upchurch, 22?    Patricia Rowell, 23?                 Betty Dickson, 24
20 (sic)?
21                  MR. FOYE:         We had talked to 24.             She
22 was excused.    I believe Betty Dickson --
23                  THE COURT:         Yeah.        I meant 25, Betty
24 Dickson.
25                  MR. HILDRETH:            No, sir.         Nothing from the



                           R A QU E L K OC H E R , C S R
                   331ST    J U D I C I A L DI S T R I C T C OU R T
              Appendix B
Opinion: Devoe v. State, 354 S.W.3d 457
     Positive Last updated October 01, 2015 04:42:24 pm GMT
     Positive When saved to folder October 01, 2015 04:42:24 pm GMT


                                                      Devoe v. State
                                              Court of Criminal Appeals of Texas
                                                December 14, 2011, Delivered
                                                         NO. AP-76,289

Reporter
354 S.W.3d 457; 2011 Tex. Crim. App. LEXIS 1669

PAUL DEVOE, Appellant v. THE STATE OF TEXAS                        defendant’s theft of his friend’s gun, the aggravated assault
                                                                   of one victim, the killing of the victim from whom he stole
Notice: PUBLISH                                                    the vehicle, and the robbery of yet another victim, because
                                                                   the State needed the evidence to give context to defendant’s
Subsequent History: Writ of habeas corpus denied Ex                crime spree. Defendant did not rest between incidents and
parte Devoe, 2014 Tex. Crim. App. Unpub. LEXIS 38 (Tex.            he stole the gun to go after women and to then effectuate his
Crim. App., Jan. 15, 2014)                                         flight.

Prior History: [**1] ON DIRECT APPEAL FROM CAUSE                   Outcome
NO. 07-302093 IN THE 403RD DISTRICT COURT,                         Defendant’s conviction and sentence were affirmed.
TRAVIS COUNTY. TRIAL COURT JUDGE: BRENDA P.
KENNEDY.
                                                                   LexisNexis® Headnotes
Case Summary                                                          Criminal Law & Procedure > ... > Appeals > Standards of
                                                                      Review > General Overview
Procedural Posture                                                    Criminal Law & Procedure > ... > Standards of Review >
                                                                      Substantial Evidence > Sufficiency of Evidence
Defendant appealed a judgment of the 403rd District Court,
Travis County (Texas), convicting him of capital murder,           HN1 In reviewing the sufficiency of the evidence at the
specifically the intentional murder of two individuals during      punishment phase, an appellate court views the evidence in
the same criminal transaction under Tex. Penal Code §              the light most favorable to the verdict and determine
19.03(a)(7)(A), and sentencing him to death under Tex.             whether any rational trier of fact could make the finding
Code Crim. Proc. Ann. art. 37.071, § 2(g).                         beyond a reasonable doubt.

Overview                                                              Criminal Law & Procedure > Sentencing > Capital
                                                                      Punishment > Aggravating Circumstances
On appeal, the court held that the evidence was sufficient to
                                                                   HN2 Some factors a jury may consider when determining
show that there was a probability that defendant would
                                                                   whether a defendant will pose a continuing threat to society
criminal acts of violence that would constitute a continuing
                                                                   include the following: (1) the circumstances of the capital
threat to society under Tex. Code Crim. Proc. Ann. art.
                                                                   offense, including the defendant’s state of mind and whether
37.071, § 2(b)(1) because it showed that: (1) during his           he or she was working alone or with other parties; (2) the
crime spree, defendant attempted to kill one victim, and did       calculated nature of the defendant’s acts; (3) the forethought
kill three others; (2) he had a lengthy criminal history; (3) he   and deliberateness exhibited by the crime’s execution; (4)
had a lengthy history of abusing women; (4) he once                the existence of a prior criminal record, and the severity of
attempted to strangle his mother; (5) he abused alcohol and        the prior crimes; (5) the defendant’s age and personal
drugs and tended to become more violent when he did so;            circumstances at the time of the commission of the offense;
and (6) inmates in Texas had access to drugs, alcohol, and         (6) whether the defendant was acting under duress or the
weapons, and many violent crimes occurred inside Texas             domination of another at the time of the commission of the
prisons. The trial court did not abuse its discretion by           offense; (7) psychiatric evidence; and (8) character evidence.
admitting extraneous evidence under Tex. R. Evid. 404(b) of        This list is not exclusive.
                                                                                                                   Page 2 of 14
                              354 S.W.3d 457, *457; 2011 Tex. Crim. App. LEXIS 1669, **1

   Criminal Law & Procedure > Sentencing > Capital                HN6 Whether extraneous offense evidence has relevance
   Punishment > Aggravating Circumstances                         apart from character conformity, as required by Tex. R. Evid.
                                                                  404(b), is a question for the trial court. Thus, a trial court’s
HN3 In determining the special issues, the jury is entitled to    ruling on the admissibility of extraneous offenses is reviewed
consider all of the evidence at both the guilt and punishment     under an abuse-of-discretion standard. As long as the trial
stages of trial. Tex. Code Crim. Proc. art. 37.071, § 2(d)(1).    court’s ruling is within the ″zone of reasonable
The circumstances of the offense and the events surrounding       disagreement,″ there is no abuse of discretion, and the trial
it may be sufficient in some instances to sustain a ″yes″         court’s ruling will be upheld. A trial court’s Rule 404(b)
answer to the future dangerousness special issue.                 ruling admitting evidence is generally within this zone if
                                                                  there is evidence supporting that an extraneous transaction
   Criminal Law & Procedure > ... > Appeals > Standards of
                                                                  is relevant to a material, non-propensity issue. If the trial
   Review > General Overview
                                                                  court’s evidentiary ruling is correct on any theory of law
   Criminal Law & Procedure > Sentencing > Capital                applicable to that ruling, it will not be disturbed, even if the
   Punishment > Aggravating Circumstances                         trial judge gave the wrong reason for his correct ruling.
   Criminal Law & Procedure > Sentencing > Capital
   Punishment > Mitigating Circumstances                             Criminal Law & Procedure > ... > Resisting Arrest > Fleeing &
                                                                     Eluding > Consciousness of Guilt
HN4 While good behavior in prison is a factor to consider,           Evidence > Admissibility > Conduct Evidence > Prior Acts,
it does not preclude a finding of future dangerousness. The          Crimes & Wrongs
Court of Criminal Appeals of Texas can review the objective
evidence of future dangerousness, but it does not engage in       HN7 Flight is admissible as a circumstance from which an
reviewing the jury’s normative decision on mitigation.            inference of guilt may be drawn. And if the extraneous
                                                                  offense is shown to be a necessarily related circumstance of
   Evidence > Admissibility > Conduct Evidence > Prior Acts,      the defendant’s flight, it may be admitted to the jury.
   Crimes & Wrongs
                                                                     Criminal Law & Procedure > Trials > General Overview
HN5 Evidence of extraneous offenses is not admissible at
                                                                     Evidence > Types of Evidence > Circumstantial Evidence
the guilt phase of a trial to prove that a defendant committed
the charged offense in conformity with a bad character. Tex.      HN8 When the identity of the perpetrator can be established
R. Evid. 404(b). However, extraneous offense evidence may         by circumstantial evidence only, identity is a contested issue
be admissible when it has relevance apart from character          even if the defense rests with the State, puts on no evidence,
conformity. For example, it may be admissible to show             and raises no defensive theories.
proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident.              Criminal Law & Procedure > Trials > Jury Instructions >
Evidence of another crime, wrong, or act also may be                 Limiting Instructions
admissible as same-transaction contextual evidence where
                                                                     Evidence > Admissibility > Conduct Evidence > Prior Acts,
″several crimes are intermixed, or blended with one another,
                                                                     Crimes & Wrongs
or connected so that they form an indivisible criminal
transaction, and full proof by testimony, of any one of them      HN9 A limiting instruction is not required when evidence is
cannot be given without showing the others. The jury is           admitted as same-transaction contextual evidence.
entitled to know all relevant surrounding facts and
circumstances of the charged offense. But, under Rule                Criminal Law & Procedure > ... > Challenges for Cause > Bias
404(b), same-transaction contextual evidence is admissible           & Impartiality > General Overview
only when the offense would make little or no sense without
                                                                     Criminal Law & Procedure > Juries & Jurors > Peremptory
also bringing in that evidence, and it is admissible only to
                                                                     Challenges > Proving Discriminatory Use
the extent that it is necessary to the jury’s understanding of
the offense.                                                      HN10 In holding that Batson challenges do not apply to
                                                                  peremptory strikes based upon religion, the Court of Criminal
   Criminal Law & Procedure > ... > Standards of Review > Abuse   Appeals of Texas stated that, by definition, a religious belief
   of Discretion > Evidence                                       (unlike race or gender) is a subscription to a set of beliefs
   Evidence > Admissibility > Conduct Evidence > Prior Acts,      and convictions. Strikes based on personal belief have long
   Crimes & Wrongs                                                been recognized as appropriate and are, in fact, the
                                                                                                                          Page 3 of 14
                                 354 S.W.3d 457, *457; 2011 Tex. Crim. App. LEXIS 1669, **1

foundation of the entire voir dire process. In discussing the         during the same criminal transaction. See TEX. PENAL CODE §
difference between striking jurors on the basis of race or            19.03(a)(7)(A). Based upon the jury’s answers to the special
gender versus religion, the court stated that attributing to          issues set forth in Texas Code of Criminal Procedure Article
women or African Americans as a group any specific moral,             37.071, Sections 2(b) and 2(e), the trial judge sentenced
political, or social belief is overly broad because membership        Appellant to death. TEX. CODE CRIM. PROC. art. 37.071, §
in the group does not depend upon subscription to the belief.         2(g).1 Direct appeal to this Court is automatic. Art. 37.071,
It is invidious because individual members who do not share           § 2(h). Appellant raises nine points of error. After reviewing
the belief are made to suffer the attribution anyway. But in          Appellant’s points of error, we find them to be without
the case of religion, the attribution is not overly broad, and        merit. Consequently, we affirm the trial court’s judgment
therefore not invidious, when the belief is an article of faith.      and sentence of death.
Because all members of the group share the same faith by
definition, it is not unjust to attribute beliefs characteristic of   Appellant challenges the sufficiency of the evidence at the
the faith to all of them.                                             punishment phase of trial. We shall address this issue first.
                                                                      The remaining points of error will be addressed in the order
     Criminal Law & Procedure > Sentencing > Capital                  presented in the briefs.
     Punishment > Mental Retardation
                                                                      In point of error eight, Appellant contends that the evidence
     Criminal Law & Procedure > Sentencing > Cruel & Unusual
                                                                      is insufficient to prove beyond a reasonable doubt that there
     Punishment
                                                                      is a probability that he will commit criminal acts of violence
HN11 There is no authority from the United States Supreme             that would constitute a continuing threat to society. See art.
Court or the Court of Criminal Appeals of Texas suggesting            37.071, § 2(b)(1). Specifically, he argues that his behavioral
that mental illness that is a ″contributing factor″ in the            record in prison is ″almost pristine,″ and therefore, the
defendant’s actions or that caused some impairment or some            State’s evidence of problems within the Texas Department
diminished capacity, is enough to render one exempt from              of Criminal Justice (TDCJ) should not be weighed against
execution under the Eighth Amendment.                                 him.

     Criminal Law & Procedure > ... > Challenges for Cause > Bias     HN1 In reviewing the sufficiency of the evidence at the
     & Impartiality > Actual & Implied Bias                           punishment phase, we view the evidence in the light most
                                                                      favorable to the verdict and determine whether any rational
HN12 See Tex. Code Crim. Proc. Ann. art. 35.16(a)(10).                trier of fact could make the finding beyond a reasonable
                                                                      doubt. Banda v. State, 890 S.W.2d 42, 50 (Tex. Crim. App.
Counsel: For APPELLANT: KARYL ANDERSON KRUG,                          1994); see also Young v. State, 283 S.W.3d 854, 863 (Tex.
AUSTIN.                                                               Crim. App. 2009). HN2 Some factors a jury may consider
                                                                      when determining whether a defendant will [**3] pose a
For STATE: MICHAEL SCOTT TALIAFERRO, ASST.                            continuing threat to society include the following:
D.A., AUSTIN; LISA C. MCMINN, STATE’S ATTORNEY,
AUSTIN.                                                                   1. the circumstances of the capital offense, including
                                                                          the defendant’s state of mind and whether he or she was
Judges: HERVEY, J., delivered the opinion of the Court in                 working alone or with other parties;
which KELLER, P.J., and MEYERS, JOHNSON,                                  2. the calculated nature of the defendant’s acts;
KEASLER, COCHRAN and ALCALA, JJ., joined. PRICE                           3. the forethought and deliberateness exhibited by the
and WOMACK, JJ., concurred.                                               crime’s execution;

Opinion by: HERVEY                                                         [*462] 4. the existence of a prior criminal record, and
                                                                          the severity of the prior crimes;
Opinion                                                                   5. the defendant’s age and personal circumstances at
                                                                          the time of the commission of the offense;
    [*461] Appellant, Paul Devoe, was convicted in October                6. whether the defendant was acting under duress or the
2009 of capital murder, specifically the intentional murder               domination of another at the time of the commission of
of two individuals (Haylie Faulkner and Danielle Hensley)                 the offense;

1
     Unless otherwise indicated, all future [**2] references to Articles refer to the Texas Code of Criminal Procedure.
                                                                                                                Page 4 of 14
                              354 S.W.3d 457, *462; 2011 Tex. Crim. App. LEXIS 1669, **3

    7. psychiatric evidence; and                                 her. Appellant then fired the gun multiple times into the
                                                                 couch and walls. Appellant spoke of killing himself. He told
    8. character evidence.
                                                                 Wilson that he had only two bullets left and that he was
Keeton v. State, 724 S.W.2d 58, 61 (Tex. Crim. App. 1987);       going to his trailer, which was parked nearby, to get more.
see also Coble v. State, 330 S.W.3d 253, 287-89 (Tex. Crim.      Appellant advised Wilson not to go near her pickup truck,
App. 2010). This list is not exclusive.                          but he told her she could go outside to smoke a cigarette.
                                                                 When Appellant walked out the door, Wilson grabbed her
HN3 In determining the special issues, the jury is entitled to   dog and ran from her home. She hid in heavy vegetation and
consider all of the evidence at both the guilt and punishment    cactus in the adjoining field. She heard Appellant start
stages of trial. Art. 37.071, § 2(d)(1); see also Young, 283      [**6] a truck, and he drove it towards Wilson. He stopped
S.W.3d at 863. The circumstances of the offense and the          and revved the engine several times before backing up.
events surrounding it may be sufficient in some instances to     Wilson saw Appellant drive away in her blue Dodge Dakota
sustain a ″yes″ answer to the future dangerousness special       pickup truck. The license plate number was 21X-ZJ5.
issue. Banda, 890 S.W.2d at 51; [**4] see also Hayes v.          Wilson [*463] later found that her money and credit cards
State, 85 S.W.3d 809, 814 (Tex. Crim. App. 2002).                were missing from her purse. Investigators recovered
                                                                 .380-caliber bullets and shell casings from her home, and
The evidence presented at guilt revealed that, in late August    Wilson turned over Appellant’s day planner, which contained
2007, Appellant stole a silver Jennings .380-caliber handgun     a photocopy of Paula Griffith’s driver’s license.
(″the gun″), two ammunition magazines, and fifteen
Winchester bullets from his friend, Bill Brinlee. Brinlee        Later that evening, Glenda Purcell was at her usual hangout,
considered Appellant to be ″family,″ as Appellant had            O’Neill’s Sports Tavern in Marble Falls. Purcell had recently
previously lived with the Brinlees. Appellant had access to      broken up with Appellant after a tumultuous six-month
the house, knew that the Brinlees would be out of town for       romantic relationship that ended when she asked him to
a wedding during the weekend of August 24, and was aware         move out of her home. Following the break-up, Purcell
that the gun was kept in the master bedroom.                     obtained a protective order against Appellant, of which
                                                                 Appellant had notice. Michael Allred was on duty as a
On August 24, 2007, Appellant was residing at the Llano          bartender that night.
home of Sharon Wilson in exchange for work he had agreed
to do around her home. At about 3:00 p.m., Wilson came           At approximately 8:30 p.m., Appellant entered O’Neill’s
home to find Appellant outside with the gun. Wilson had          Sports Tavern. He was dressed in what Purcell described as
previously informed Appellant that she did not allow             his ″motorcycle attire″: a black leather vest, chaps, a cap,
firearms in her home, and she asked that he not bring it in      and a jacket. Purcell immediately called out for someone to
the house. She assumed that Appellant complied with her          call the police because she had a protective order against
request.                                                         Appellant. [**7] Appellant then walked over to Purcell, put
                                                                 his hand over her eyes, and held the gun to her head. He
A short while later, Wilson found Appellant looking in her       pulled the trigger several times, but the gun jammed. Purcell
purse. He claimed to be looking for a cigarette. Appellant       then ran back towards the men’s room where Allred was
then went to take a nap. At this point, Wilson decided that      repairing something. She yelled, ″Mike, Mike, [Appellant’s]
it was time to ask Appellant to vacate her home. [**5] She       here, he’s got a gun.″ Allred stepped between Purcell and
called some friends to be with her when she told him             Appellant. Allred tried to persuade Appellant to calm down
because she was afraid of how Appellant might react to the       and to give him the gun, but Appellant then shot Allred in
request. While waiting for her friends, she discovered that      the chest with a .380-caliber bullet, severing his aorta and
Appellant had emptied the gas can that she had filled for her    killing him. Purcell ran out of the back door to the police
lawn mower. Angered, Wilson felt she could wait no longer,       station next door. Witnesses saw Appellant flee the bar in a
so she went to confront Appellant.                               blue Dodge Dakota pickup truck with the license plate
                                                                 21X-ZJ5. Appellant was headed in the direction of
Upon finding Appellant asleep in her bedroom, Wilson             Jonestown.
woke him and told him that he needed to leave. Appellant
got up and went directly to the living room couch where he       Paula Griffith lived in a house in Jonestown with her
retrieved the gun from a hiding place behind the cushions,       fifteen-year-old daughter, Haylie Faulkner. Griffith
and he pointed it at Wilson’s head and mid-section. Wilson       previously dated Appellant, but they had not had a romantic
knocked Appellant’s arm so that the gun pointed away from        relationship in some time. By all accounts, the break-up
                                                                                                                   Page 5 of 14
                              354 S.W.3d 457, *463; 2011 Tex. Crim. App. LEXIS 1669, **7

seemed amicable, and Appellant kept in touch with Faulkner,       cigarette butt was found on the floor. No identifiable
even paying her entry fee into some beauty pageants.              fingerprints were found at the scene.

On the evening of August 24, Griffith, Faulkner, Faulkner’s       Police confirmed that the blue Dodge Dakota pickup truck
friend (Danielle Hensley), and Griffith’s boyfriend (Jay          parked at Griffith’s home was the same one that had been
 [**8] Feltner) were at Griffith’s home preparing for a trip to   used to flee the murder in Marble Falls. Investigators
Fiesta Texas, an amusement park in San Antonio. Griffith          collected three Natural Light beer cans, one empty Sport
had obtained tickets to celebrate the last weekend before the     cigarette package, cigarette butts from the ashtray, and a set
start of school. The group planned to travel to San Antonio       of General Motor keys from the pickup. They also discovered
on Friday night, spend the day at Fiesta Texas on Saturday,       that Griffith’s white 2001 Saturn station wagon was missing.
and return to Jonestown late Saturday night. Hensley was to
return to her family’s home in Leander on Sunday.                 Meanwhile, beginning Friday night, August 24, Appellant
                                                                  began calling his friend, Brinlee. During his first phone call,
On that Friday evening, August 24, Hensley’s mother and           Appellant told Brinlee that he had ″shot at″ six people and
step-father began to worry when they did not receive a            ″maybe killed two″ people. He stated that he ″was on the
phone call from her because Hensley normally called to say        run.″ During the second call, Brinlee noticed that Appellant
good night. On Saturday, her parents were still unable to         was not calling from his cell phone; he was now calling
reach Hensley, Griffith, or Faulkner. They called the             from a new number. It was later determined that Appellant
Jonestown police, but the police were unable to assist            was using Feltner’s cell phone. This second call was placed
because the parents did not know the physical address of          at 11:44 p.m. in the vicinity of a cell tower in Belton, Texas.
Griffith’s house. When searching the internet for news of
any auto accidents or other events that might explain             During his second or third phone call to Brinlee, Appellant
Hensley’s failure to make contact, Hensley’s step-father          said that ″he was going after [Purcell] and her father and
learned about the murder in Marble Falls and that the police      mother.″ He told Brinlee that he had gone to [**11] the bar
were looking for a blue Dodge Dakota pickup truck with the        to kill Purcell, but the bartender got in the way. Appellant
license plate number 21X-ZJ5.                                     said that he took a couple of shots at Purcell, but the gun
                                                                  jammed and that was why Purcell was not dead.
On Sunday morning, August 26, Hensley’s parents drove to
Griffith’s home in Jonestown. [**9] As they approached the        Records for Wilson’s credit card showed that someone
driveway, Hensley’s step-father saw a blue Dodge Dakota           attempted to use it at a Round Rock gas station on August
pickup truck parked near the house. He recognized the             24. Call records for Feltner’s phone showed points along the
license plate number from his internet search the day before,     route that Appellant took as he fled Texas. In addition to the
and he knew that something was [*464] wrong. He parked            call from the Belton area, Appellant used the phone while he
a block away and called the police.                               was near the following locations: Mount Sylvan, Texas
                                                                  (Saturday, August 25 at 3:17 a.m.); Okalona, Arkansas
After securing the area, the police entered Griffith’s home to    (Saturday, August 25 at 9:12 a.m.); Bakerville, Tennessee
check on the welfare of the people possibly inside and            (Saturday, August 25 at 3:30 p.m.); Shippensburg,
discovered the four bodies. Feltner had been shot in the head     Pennsylvania (Sunday, August 26 at 2:40 p.m.); and
from close range while sitting at the kitchen table. Griffith     Siperstein Plaza, New Jersey (Sunday, August 26 at 6:46
had been shot in the back of her head, apparently while she       p.m.). Appellant was traveling to his mother’s home in
was running from the living room. Faulkner had fallen to the      Shirley, New York.
living room floor with a gunshot wound to the head.
Hensley, who was lying on the living room couch, had four         On Sunday, August 26, while Appellant was driving through
gunshot wounds including a fatal wound to the head. The           Pennsylvania, Griffith’s Saturn station wagon began stalling
group had apparently been preparing dinner as raw meat sat        and ″riding rough.″ Appellant decided that he needed a
out on the counter and the barbecue grill outside was open.       different car, so he left Interstate 81 in the town of
                                                                  Greencastle. Appellant spotted a ″nice car″ in a driveway.
It appeared to the investigators that each of the females’        Armed with the gun, he entered the home of Betty
purses had been searched and the contents dumped onto a            [**12] DeHart and found the keys to her blue 2006 Hyundai
couch. Feltner’s duffle bag had also been searched, and his       Elantra. He [*465] transferred his items from Griffith’s car
cell phone was discovered to be missing. A carton of              into the Hyundai, including a Walmart bag containing
Skydancer cigarettes was on the same couch, and [**10] a          ammunition, Skydancer cigarettes, sunglasses, and a road
                                                                                                                  Page 6 of 14
                             354 S.W.3d 457, *465; 2011 Tex. Crim. App. LEXIS 1669, **12

map. Appellant then continued driving to New York. An            After his return to Texas, Appellant told a cellmate in the
expended .380-caliber bullet and shell casing were recovered     Travis County Jail, ″I’ll be here for a long time . . . I killed
from DeHart’s home. In Griffith’s Saturn station wagon,          six people.″ Also while in jail, during a recorded conversation
investigators found an identification badge for Griffith, a      with an acquaintance, Tiffany Waldrop, Appellant told
certificate of Faulkner’s participation in a beauty pageant, a   Waldrop that he thought that he would be in jail for ″[l]ife.
paper towel holder, a peanut can, and Powerade, Dr. Pepper,      I’m getting the death penalty.″ When Waldrop asked
and Coca-Cola bottles.                                           Appellant if he had spoken with Brinlee, Appellant
                                                                 responded, ″I’ve talked to [Brinlee], oh, they don’t want
Around noon on Monday, August 27, Appellant was located          him basically him [sic] talking to me right now . . . .
at the home of his friend and former employer, Gerald            Because it was [Brinlee]’s gun that I used.″ Appellant also
Baldoni, in the Long Island town of Shirley, New York.           told Waldrop, ″I just wish I had never had that gun.″
Baldoni invited the initial officer into his home and told him
that Paul was there. The officer called for back-up, and         DNA analysis identified Feltner’s and Allred’s [**15] blood
when the officers subsequently entered the home, Appellant       on Appellant’s boots. Appellant’s DNA was on a cigarette
came out into the hallway from a bedroom with the gun            butt [*466] found at the Jonestown crime scene and on Dr.
pointed to his head. Appellant asked the officers to call his    Pepper and Coca-Cola bottles left in Griffith’s Saturn
mother. He also stated that he did not want to go to jail for    station wagon. A DNA profile consistent with a mixture of
what he did because he knew that he was going to spend a         Appellant’s and Faulkner’s DNA was found on a Gatorade
long time there. After a short [**13] stand-off, Appellant       bottle also left in the station wagon. Ballistics analysis
threw down his weapon and surrendered.                           determined that the bullets recovered from the Llano,
                                                                 Marble Falls, Jonestown, and Pennsylvania crime scenes
Investigators recovered the gun, which had a bullet in the       were all fired from Brinlee’s .380-caliber pistol.
chamber and a loaded magazine. They also recovered
Appellant’s black cowboy boots, leather vest, cap, and other     The evidence presented at punishment revealed that
clothing, and inside the vest’s pocket, they discovered          Appellant shot and killed 81-year-old Betty DeHart when he
Wilson’s credit card, a loaded magazine, loose shells, a Bic     stole her blue Hyundai in Greencastle, Pennsylvania. DeHart
lighter, a pocket knife, a business card, and a piece of paper   was found lying on her bed with a close-range gunshot
with a cell phone number written on it. DeHart’s Hyundai         wound to the head. Appellant claimed to have chased her
was found parked at Baldoni’s home; the keys were found          into her home and that he shot her because ″she wouldn’t
in the house. Inside the Hyundai, they recovered Feltner’s       stop screaming.″
cell phone and the Walmart bag, which contained a box of
100 Winchester .380-caliber bullets, an open carton of           Appellant possessed a lengthy criminal history. He was
Skydancer cigarettes, a pair of sunglasses, a road atlas with    incarcerated in Burnet County, Texas, for various
the area around DeHart’s home circled in ink.                    misdemeanors. Before that, he was jailed in Suffolk County,
                                                                 New York, over twenty times between 1980 and 2004,
Pending his extradition to Texas, Appellant was held in          including an incarceration in the Gowanda state prison from
custody by the Suffolk County, New York Police Department.       1997 to 2002. Appellant’s convictions in Suffolk County,
Appellant made the following unsolicited statements in the       New York, included [**16] aggravated unlicensed operation
presence of an officer: ″They’re going to extradite me back      of a motor vehicle, aggravated harassment, criminal trespass,
to Texas, then probably Tennessee, West Virginia,                disorderly conduct, endangering the welfare of a child, two
Pennsylvania, then probably back here. I bet they found me       convictions for harassment, three for assault, and four for
when I turned my damn cell phone on. I had that bitch            felony driving while intoxicated. Appellant’s 1989 assault
turned [**14] off the whole time and they didn’t have a clue     conviction was for shooting another young man with a
where I was″; ″I had a good fucking thing going on in            12-gauge shotgun following an altercation that Appellant
Texas, too. Business, house, vehicles. If it wasn’t for my       incited; that man testified about that incident and his
stupid fucking girlfriend. One mistake ruined my whole           resulting wounds.
fucking life″; ″Do you know how many bodies they found?
Five, six in Texas. Maybe 12 bodies.″ Appellant also spoke       Appellant also had a lengthy history of abusing women.
with a detective of the Suffolk County Police Department.        Appellant told a former neighbor that he ″liked to slap the
He described many of the events surrounding the instant          girls around.″ Purcell, the woman Appellant attempted to
offenses, but he did not speak specifically about the acts of    kill in Marble Falls, testified about earlier abuse by
shooting or killing.                                             Appellant. On one occasion, he punched her in the face and
                                                                                                                 Page 7 of 14
                              354 S.W.3d 457, *466; 2011 Tex. Crim. App. LEXIS 1669, **16

broke her nose. On another occasion occurring June 15,            held a hunting knife to her throat. She managed to fight
2007, while driving, she and Appellant were run off the           Appellant off and call 9-1-1. Charges were filed against
road. Appellant chased down the offending truck, forced it        Appellant, [**19] and the case was pending at the time of
to stop, and pulled the driver—a young woman—out of the           the capital murders.
truck. He threatened to beat up the young woman, but
Purcell persuaded him not to do so. Later that same night,        Appellant’s family confirmed that, when Appellant was in
Purcell complained that Appellant had been living in her          his twenties, he once attempted to strangle his mother with
home for four months without paying any bills or helping          a telephone cord. Following that incident, Appellant’s
out. Appellant [**17] became angry, and he cut Purcell’s          mother obtained a protective order against him.
clothes off with a knife, punched her several times, and held
a knife to her throat. He also hit Purcell with the finial from   The jury also received ample evidence from numerous
a bed post, breaking two of her ribs, and he threatened to        witnesses that Appellant abused alcohol and drugs and that
shoot her. Purcell subsequently kicked Appellant out of her       he tended to become more violent when he did so.
home and obtained a protective order.                             Appellant’s mother testified, via deposition, that Appellant
                                                                  became ″very violent″ when he was drinking—he ″would
Jody Pagel, a woman whom Appellant had dated in the early         take things apart, tear up the house, and break down doors.
1980s while living in New York, testified regarding three         He would act like that no matter whose house he was at.″
incidents involving Appellant. During the first incident,
Appellant drank too much and attempted to choke her to            Appellant’s substance abuse was also the subject of expert
death. Pagel testified that the second incident occurred in       testimony. Defense psychiatrist Dr. Robert Cantu interviewed
the house, but she could not recall the facts clearly. During     Appellant. His understanding from Appellant was that
the third incident, they were at a bar when Appellant choked      Appellant had smoked a half to one ounce of
Pagel so hard that he lifted her up off the floor; he then        methamphetamine in the 12 hours preceding the instant
threw her to the ground. Following the assault, Appellant sat     offense, in addition to drinking what Appellant reported as
at the bar with another woman as if nothing had happened.         a liter of rum that day. Cantu testified that Appellant would
After Pagel broke up with Appellant, Appellant made               be a danger to others in prison if he had access to large
harassing phone calls in which he threatened to kill Pagel        quantities of drugs or alcohol, if he had the opportunity to
and her new boyfriend. Pagel reported the calls, and she          harm weaker people [**20] there, and if he were in an
obtained a protective order.                                      unstructured environment that allowed him to go places
                                                                  without direct supervision. Cantu stated, ″I think if those
On December 20, 2006, Appellant went to the emergency             three things . . . were present, that he would be a future
room at South Austin Medical Center. When [**18] a                danger, yes, sir.″ Cantu also believed that Appellant did
female physician told him that it would not be a good idea        ″know what he was doing″ during the time of the instant
for him to leave the hospital, Appellant [*467] spoke             offense.
aggressively and abusively to someone on the phone and
then threatened to physically harm the female doctor.             A.P. Merillat, a senior criminal investigator for the Texas
                                                                  Special Prosecution Unit, testified that inmates in Texas
Mary McNellage testified that Appellant lived in her              prisons have access to drugs, alcohol, and weapons. He
Spicewood, Texas, home for 89 days. She wanted him to             further testified that many violent crimes occur inside Texas
leave due to his lies, drinking, and uncontrolled behavior.       prisons.
McNellage did not want to ask Appellant directly to leave
because Appellant had previously physically threatened her.       Dr. Richard Coons, a psychiatrist, testified for the State
Consequently, she left him a car and a suitcase along with a      without objection. After interviewing Appellant and
note that asked him to leave her things alone and ″just go.″      reviewing his records, Coons agreed with Cantu’s assessment
She had also washed and folded his clothes and had packed         that Appellant would be a continuing threat to society. In
them and his other belongings in the suitcase and car.            Coons’s opinion, Appellant was ″drug dependent and . . . I
McNellage then stayed at a friend’s house for 13 days             think if he were given the opportunity, [Appellant] would
because she was afraid of Appellant’s reaction to the note.       certainly try to get them, try to use them″ in prison. During
Appellant refused to leave, but eventually he was forced to       Coons’s interview with him, Appellant described the instant
go. After McNellage finally returned home, Appellant              offenses in detail. Appellant told him that he was angry
showed up around 3:00 a.m. saying that he wanted to have          when he shot the gun in Wilson’s home, but he said that the
sex with her. When she rebuffed his advances, Appellant           shooting of Allred ″was an accidental shooting.″ [**21] He
                                                                                                                     Page 8 of 14
                               354 S.W.3d 457, *467; 2011 Tex. Crim. App. LEXIS 1669, **21

claimed that he went to Griffith’s home to get money and            violence. Appellant called Petrie while he was ″on the run″
that he shot Feltner because Feltner came at him (despite the       in the instant offense, and he told her that he had shot people
physical evidence that [*468] Feltner was seated at the             and did not know if they were alive or dead. Petrie told
kitchen table). He shot Griffith and the kids because they          Appellant to turn himself in and not to hurt anyone else; he
were screaming. He also stated that he shot DeHart because          responded, ″I gotta do what I gotta do.″ Appellant also
she was screaming.                                                  presented evidence that he did not have a record of
                                                                    disciplinary problems during his many incarcerations.
Coons concluded that Appellant was not operating under
any type of psychosis during the instant offense. He found          On appeal, Appellant’s argument centers on the weight that
that Appellant planned his behavior and was ″actively               should be given to his ″pristine″ behavioral record while
responsive to what he [felt] he need[ed] to do.″ Coons              incarcerated. However,HN4 while good behavior in prison
agreed with Appellant’s previous diagnoses of psychotic             is a factor to consider, it does not preclude a finding of
disorder not-otherwise-specified, antisocial behavior, and          future dangerousness. See Emery v. State, 881 S.W.2d 702,
personality problems, and that Appellant is polysubstance           707 (Tex. Crim. App. 1994). We have held that this Court
dependent.                                                          can review the objective evidence of future dangerousness,
                                                                    but we do not engage in reviewing the jury’s normative
In reaching a determination that Appellant would be a future        decision on mitigation. Young, 283 S.W.3d at 865; Colella v.
danger, Coons evaluated the following factors: (1)                  State, 915 S.W.2d 834, 845 (Tex. Crim. App. 1995).
Appellant’s long history of violence; (2) the awful set of          Therefore, we conclude that there was sufficient evidence to
facts related to the instant offense; (3) Appellant’s attitude      support the jury’s affirmative finding on the future
toward violence, which is impulsive with a lack of empathy;         dangerousness issue, and we defer to the jury’s conclusion
(4) Appellant’s antisocial personality behaviors; (5)               that the mitigating evidence [**24] was not sufficient to
Appellant’s lack of any remorse; and (6) the prison society         warrant a sentence of life imprisonment. Point of error eight
that Appellant would be in.                                         is overruled.

The defense’s expert, psychologist Dr. Ollie Seay, evaluated        In point of error one, Appellant claims that the trial court
 [**22] Appellant for mental retardation and concluded that         erred in allowing [*469] him ″to be tried on copious
Appellant did not fit the criteria for that diagnosis. Seay did     amounts of extraneous offense evidence″ at guilt in violation
testify, however, that he believed that Appellant may have          of Texas Rule of Evidence 404(b), thereby denying him a
″possible mental limitations.″ Neuropsychologist Dr. Leslie         fair trial. Specifically, he complains that the trial court
Rosenstein surmised that Appellant has deficits and                 improperly permitted the State to present extraneous offense
weaknesses in his neurocognitive functioning, but she               evidence pertaining to the theft of Brinlee’s gun, the
agreed that Appellant was not legally mentally retarded.            aggravated assault of Wilson in Llano, the killing of Allred
                                                                    in Marble Falls, and the robbery of DeHart in Pennsylvania.2
Appellant’s aunt, Laura Nelson, and sister, Elizabeth Petrie,       Appellant concedes that the murders of Griffith and Feltner
testified on his behalf. Nelson stated that she did not think       constitute same-transaction contextual evidence.
Appellant was treated well by his step-father and that he
seemed to be punished a lot. Her memories of Appellant are          HN5 Evidence of extraneous offenses is not admissible at
of a caring, loving, and sharing person. However, Nelson            the guilt phase of a trial to prove that a defendant committed
admitted that she had not seen Appellant in several years.          the charged offense in conformity with a bad character. Tex.
She knew that he had relationships with numerous women,             R. Evid. 404(b); see Nobles v. State, 843 S.W.2d 503, 514
that he would live off of them, and that the relationships          (Tex. Crim. App. 1992). However, extraneous offense
ended because of fighting.                                          evidence may be admissible when it has relevance apart
                                                                    from character conformity. Moses v. State, 105 S.W.3d 622,
Petrie testified that Appellant was a typical brother, but he       626 (Tex. Crim. App. 2003). [**25] For example, it may be
did ″smack″ her and physically push her while they were             admissible to show proof of motive, opportunity, intent,
growing up. She noted that Appellant did not do well in             preparation, plan, knowledge, identity, or absence of mistake
school and that he started drinking when he was fifteen. She        or accident. Id. Evidence of another crime, wrong, or act
was aware that her brother could be ″very violent″ and that         also may be admissible as same-transaction contextual
his relationships [**23] with women frequently involved             evidence where ″several crimes are intermixed, or blended

2
    As noted previously, evidence of DeHart’s murder was not presented during the guilt phase of trial.
                                                                                                                   Page 9 of 14
                              354 S.W.3d 457, *469; 2011 Tex. Crim. App. LEXIS 1669, **25

with one another, or connected so that they form an                that ″[t]he evidence is so intermingled between all of the
indivisible criminal transaction, and full proof by testimony,     events that occurred it would just -- it would be impossible
. . ., of any one of them cannot be given without showing the      to do so without leaving a hole, leaving a gaping hole in the
others.″ Wyatt v. State, 23 S.W.3d 18, 25 (Tex. Crim. App.         State’s case. So the Court does find that this is one
2000) (quoting Rogers v. State, 853 S.W.2d 29, 33 (Tex.            continuing course of conduct[.]″ In a subsequent pre-trial
Crim. App. 1993)). The jury is entitled to know all relevant       hearing, the trial court reaffirmed its ruling.
surrounding facts and circumstances of the charged offense.
Id. But, under Rule 404(b), same-transaction contextual            We conclude that the trial court did not err. [**28] It was
evidence is admissible only when the offense would make            within the zone of reasonable disagreement to find the
little or no sense without also bringing in that evidence, and     various offenses to be contextual evidence. Appellant did
it is admissible ″only to the extent that it is necessary to the   not rest between incidents, and the charged offense would
jury’s understanding of the offense.″ Id. (quoting Pondexter       make little sense without the extraneous offenses. The
v. State, 942 S.W.2d 577, 584 (Tex. Crim. App. 1996)).             extraneous offense evidence presented showed that Appellant
                                                                   went to homes and establishments where he knew certain
HN6 ″Whether extraneous offense evidence has relevance             women would be found (with the exception of DeHart),
apart from character conformity, as required by Rule 404(b),       specifically women with whom he had a personal
is a question [**26] for the trial court.″ Moses, 105 S.W.3d       relationship. Appellant deliberately stole a gun from the
at 627. Thus, a trial court’s ruling on the admissibility of       home of his friend Brinlee. After threatening Wilson with
extraneous offenses is reviewed under an abuse-of-discretion       the gun and shooting it inside her home, Appellant stole
standard. Prible v. State, 175 S.W.3d 724, 731 (Tex. Crim.         Wilson’s truck and one of her credit cards. He then drove
App. 2005); see Santellan v. State, 939 S.W.2d 155, 169            Wilson’s truck to O’Neill’s in Marble Falls. There, all of the
(Tex. Crim. App. 1997). As long as the trial court’s ruling is     witnesses saw Appellant with the gun when he used it in an
within the ″zone of reasonable disagreement,″ there is no          attempt to kill Purcell and in the murder of bartender Allred.
abuse of discretion, and the trial court’s ruling will be          All witnesses testified that no one else ever fired or
upheld. Prible, 175 S.W.3d at 731; Santellan, 939 S.W.2d at        possessed the gun. Appellant was seen fleeing Marble Falls
169. A trial court’s 404(b) ruling admitting evidence is           alone in Wilson’s stolen blue truck, and that very truck was
generally within this zone if there is evidence supporting         present at the Jonestown crime scene. This, along with
that an extraneous transaction is relevant to a material,          ballistics evidence and DNA evidence, created more
non-propensity issue. Powell v. State, 63 S.W.3d 435, 438          circumstantial evidence to establish the identity of Appellant
(Tex. Crim. App. 2001); see Santellan, 939 S.W.2d at 169. If        [**29] as Faulkner’s and Hensley’s killer. The abandonment
the trial court’s evidentiary ruling is correct on any theory of   of Wilson’s blue truck and the theft of Griffith’s white
law applicable to that ruling, it will not be disturbed, even if   Saturn were also part of this continuing episode.
the trial judge gave the wrong reason for his correct ruling.
Sewell v. State, 629 S.W.2d 42, 45 (Tex. Crim. App. 1982).         Further, the theft of DeHart’s blue Hyundai occurred during
                                                                   Appellant’s flight from the instant offense as he attempted
At a pre-trial hearing, the State presented evidence that the      to travel to his mother’s home in Shirley, New York. HN7
charged offense and the extraneous offenses at issue were          ″[F]light is admissible as a circumstance from which an
all part of a single ″crime [**27] spree.″ The State argued        inference of guilt may be drawn.″ Alba v. State, 905 S.W.2d
that each of the episodes in the [*470] instant case,              581, 586 (Tex. Crim. App. 1995). And if ″the extraneous
beginning with the burglary of a habitation and the theft of       offense is shown to be a necessarily related circumstance of
Brinlee’s gun and ending with the robbery of DeHart,               the defendant’s flight, it may be admitted to the jury.″ Id.;
constituted one continuous episode because these extraneous        see also Foster v. State, 779 S.W.2d 845, 859 (Tex. Crim.
offenses were necessary to properly explain what happened          App. 1989). Appellant was apprehended in Suffolk County,
in Jonestown and to clarify the nature of the crime alleged.       New York with DeHart’s vehicle, the gun, Feltner’s cell
Although the State argued that it had no direct evidence that      phone, and Wilson’s credit card. The trial court did not err
Appellant committed the Jonestown murders, they presented          in holding that the instant offense was not fully
the evidence of each extraneous offense to prove the               understandable without the contextual evidence of the
charged crime and to illustrate the ″crime spree″                  extraneous offenses.
characterization of Appellant’s acts. Further, omitting the
extraneous offenses would make little or no sense and              We note that Appellant contends that, because ″no one was
would be impractical because they are needed to tie                challenging the State’s version of events,″ the introduction
Appellant to the crime. The trial court agreed, concluding         of the extraneous crimes was unnecessary to prove identity
                                                                                                                  Page 10 of 14
                              354 S.W.3d 457, *470; 2011 Tex. Crim. App. LEXIS 1669, **29

or any of the other Rule 404(b) exceptions. [**30] This                And how many are in the jury box right now?
argument is without merit. Appellant did not plead guilty,
                                                                       MR. ERICKSON: About 12.
and he argued at closing against a finding of guilt. HN8
When the identity of the perpetrator can be established by             MR. WEBER: There’s 12 rounds that actually went
circumstantial [*471] evidence only, identity is a contested           into the jury box, live rounds.
issue even if the defense rests with the State, puts on no
                                                                       How many are on the bench in front of them?
evidence, and raises no defensive theories. See Jones v.
State, 568 S.W.2d 847, 858-60 (Tex. Crim. App. 1978). We               MR. ERICKSON: 15.
also note that this argument is without merit because, aside
                                                                       MR. WEBER: There’s 15 on the bench in front of
from the identity issue, the State needed all of this evidence
                                                                       them.
to give context to Appellant’s ″crime spree″ as he stole the
gun to go after women with whom he had had personal                    He poured live rounds in front of the jury. He then
relationships and to then effectuate his flight to his mother’s        walked over and held the gun out to [Appellant] and
home. Point of error one is overruled.                                 offered the gun to [Appellant]. He then brought records
                                                                       that I introduced that were in the record and slammed
In point of error two, Appellant argues that the trial court           them down on the table directly in front of me.
erred in ″failing to give an individual limiting instruction as
to each piece of extraneous offense evidence at the time it            All of these actions violated the specific rules the judge
was admitted, denying him a fair trial.″ The record shows              told us and proper conduct. [The judge] gave us the
that the trial court denied Appellant’s numerous requests for          rules. We all acknowledged we heard it. Absolutely
individual Rule 404(b) limiting instructions. However, at the          improper. Absolutely outrageous conduct. Absolutely
end of trial, the trial court agreed to include a limiting             uncalled for.
instruction in the court’s charge [**31] regarding the                 We have no problem with anything that was said
extraneous offenses that were admitted.                                against us, but this conduct was just completely outside
                                                                       the bounds of what is permitted in the law.
This Court has held that HN9 a limiting instruction is not
required when evidence is admitted as same-transaction                 [*472] We ask, one, that Mr. Cobb be held in contempt
contextual evidence. Castaldo v. State, 78 S.W.3d 345, 352             of court; and we ask, two, for a mistrial.
(Tex. Crim. App. 2002); Wesbrook v. State, 29 S.W.3d 103,
                                                                       THE COURT: Counsel has requested that that be
114-15 (Tex. Crim. App. 2000). Because we hold that the
                                                                       placed [**33] on the record. And, State, if you wish to
trial court did not err in admitting the extraneous offense
                                                                       reply as well on the record, you may do so.
evidence as same-transaction contextual evidence, no
instructions were required. Moreover, even though not                  MR. COBB: Only to dispute Mr. Weber’s accusation
required, the trial court included in the jury charge a limiting       that I offered the gun to [Appellant]. I did not offer the
instruction on extraneous-offense evidence. Appellant’s                gun to [Appellant]. I walked toward counsel[’s] table
second point of error is overruled.                                    with the gun. And I don’t believe that I slammed the
                                                                       records down. I did put them on counsel[’s] table.
In his third point of error, Appellant contends that the trial
court ″erred in failing to grant [him] a new trial, where          The trial court declined to hold the prosecutor in contempt
prosecutor Gary Cobb threw one or more boxes of live               and denied Appellant’s motion for mistrial.
rounds of ammunition into the jury box prior to the jury
retiring to consider punishment.″ The record shows that            Appellant did not object to the prosecutor’s conduct or
after the jury retired to begin its deliberations, the following   request an instruction to disregard when the conduct
occurred:                                                          occurred, but instead moved for a mistrial after the jury had
                                                                   already retired to begin its deliberations. In so doing,
    MR. WEBER [Defense Counsel]: All right. We’re                  Appellant failed to object at the earliest opportunity, and
    going to object to Mr. Cobb’s conduct during early in          thus, he has preserved nothing for our review. Tex. R. App.
    the presentation -- early in the closing. He picked up         33.1(a). Point of error three is overruled.
    live rounds, not shells, [**32] and poured -- from about
    a foot high poured -- where is [Mr. Erickson, defense          In point of error four, Appellant contends that the trial court
    counsel] -- I would say 50 rounds of ammunition on the         erred in failing to grant him a new trial where the State
    bench directly in front of the jurors.                         singled out Catholics for exclusion from the jury panel in
                                                                                                                         Page 11 of 14
                                354 S.W.3d 457, *472; 2011 Tex. Crim. App. LEXIS 1669, **33

violation of Batson v. Kentucky, 476 U.S. 79, 106 S. Ct.              Appellant asserts that       [**36] the testimony of his
1712, 90 L. Ed. 2d 69 (1986).3 He avers that this is a case           mental-health experts shows that he has borderline
of first impression and asks this Court to reverse and                intellectual functioning; he also notes that he was held to be
remand his case for a new trial. Appellant [**34] is                  incompetent to stand trial prior to the restoration of his
incorrect.                                                            competence and subsequent trial. Citing Atkins v. Virginia,
                                                                      536 U.S. 304, 122 S. Ct. 2242, 153 L. Ed. 2d 335 (2002)
We addressed this same issue in Casarez v. State, 913                 (banning the execution of mentally-retarded offenders), and
S.W.2d 468, 495 (Tex. Crim. App. 1994) (op. on reh’g).                Roper v. Simmons, 543 U.S. 551, 125 S. Ct. 1183, 161 L. Ed.
HN10 In holding that Batson challenges do not apply to                2d 1 (2005) (banning the execution of juvenile offenders),
peremptory strikes based upon religion, we stated that, by            he argues that these decisions should be extended to protect
definition, a religious belief (unlike race or gender) is a           the mentally ill from execution. Appellant concedes that he
subscription to a set of beliefs and convictions. Id. Strikes         is not mentally retarded or a juvenile.
based on personal belief have long been recognized as
appropriate and are, in fact, the foundation of the entire voir       We recently addressed this issue in Mays v. State, 318
dire process. Id. In discussing the difference between                S.W.3d 368, 379-80 (Tex. Crim. App. 2010). Quoting our
striking jurors on the basis of race or gender versus religion,       previous caselaw, we stated that HN11 ″there is no authority
we stated,                                                            from the Supreme Court or this Court suggesting that
                                                                      mental illness that is a ’contributing factor’ in the defendant’s
     Attributing to women or African Americans as a group             actions or that caused some impairment or some diminished
     any specific moral, political, or social belief is overly        capacity, is enough to render one exempt from execution
     broad because membership in the group does not                   under the Eighth Amendment.″ Id. at 379. As in Mays,
     depend upon subscription to the belief. It is invidious          Appellant cites no cases from any American jurisdiction that
     because individual members who do not share the                  hold that the Atkins rule or rationale applies to the mentally
     belief are made to suffer the attribution anyway.                ill. See id. Nor has he demonstrated that there [**37] is a
      [**35] But in the case of religion, the attribution is not      trend among state legislatures to categorically prohibit the
     overly broad, and therefore not invidious, when the              imposition of capital punishment against mentally ill
     belief is an article of faith. Because all members of the        offenders. See id. Finally, Appellant fails to show that, if he
     group share the same faith by definition, it is not unjust       did suffer from some mental impairment at the time of these
     to attribute beliefs characteristic of the faith to all of       murders, his impairment was so severe that he is necessarily
     them.                                                            and categorically less morally culpable than those who are
                                                                      not mentally ill. See id. at 379-80. As Appellant has raised
Id. at 496. Appellant raises nothing to persuade us to revisit        nothing new to persuade us to revisit our previous decision,
our holding in Casarez. Point of error four is overruled.
                                                                      we overrule point of error number six.
In Appellant’s fifth point of error, he claims that the
evidence is insufficient to demonstrate that he would be a            In point of error seven, Appellant avers that the trial court
future danger in prison and that the testimony concerning             erred in not allowing the defense to question venire person
the ″incompetency″ of TDCJ (i.e., TDCJ’s failure to protect           Jacqueline Lambert prior to her being struck for cause.
its inmates from drugs, alcohol, and violence) violated his           Appellant argues that it was unconstitutional under Wither-
right to individualized sentencing. Appellant concedes in his         spoon v. Illinois, 391 U.S. 510, 88 S. Ct. 1770, 20 L. Ed. 2d
reply brief that this fifth point of error is redundant of points     776 (1968), and Wainwright v. Witt, 469 U.S. 412, 105 S. Ct.
of error eight and nine. He asks that the argument and                844, 83 L. Ed. 2d 841 (1985), to prevent him from
authority contained in point [*473] five be incorporated              attempting to rehabilitate a potential juror who had qualms
into point of error nine and that point of error five no longer       against the death penalty.
exist as a separate point of error. We will grant Appellant’s
                                                                      During voir dire questioning by the State, Lambert stated
request.
                                                                      that she was opposed to the death penalty under any
In point of error six, Appellant claims that it is                    circumstances and that she could not set aside her principles
unconstitutional to sentence a mentally ill person to death.          and follow the law. When the State asked if she would still

3
   During voir dire, Appellant challenged the prospective jurors’ exclusion under Batson based upon the jurors’ religion. While
Appellant notes that each of the five prospective jurors was a minority, he did not assert at trial, or on appeal, that the State excluded
these jurors because of race.
                                                                                                                  Page 12 of 14
                              354 S.W.3d 457, *473; 2011 Tex. Crim. App. LEXIS 1669, **37

vote for a life sentence [**38] no matter how horrible the            Frankly, I think the law says that once she answers the
crime, Lambert responded as follows:                                  pretrial publicity question, which I have an obligation,
                                                                      the Court can on its own motion ask that question once
    A. Yes, I know. I know because I know -- I know it’s a            there are facts that indicate that the juror may have a
    horrible crime and I know. And I don’t mean to -- I               bias or prejudice, which I think the State was attempting
    mean, like the judge said, this is the time that I can            to do. But [**40] if it was not asked in the right form
    speak. We didn’t get down to the next section [of the             for the record, I think the Court has an obligation to do
    questionnaire], which I think has a lot of bearing on my          so.
    case, on my feelings being here also, is that I live out on       And I think the law says, since you-all are so familiar
    the North Shore. I know what a horrible thing this was            with [article] 35.16 and of the sections [sic], that once
    because it was in the papers, and I know -- and at the            she answers that question in such a way that it indicates
    time I read everything. We had just moved there. It was           that her verdict would be affected, that we can question
    just horrible.                                                    her no more.
    And when I -- when the judge asked when I was here
                                                                  In response to Appellant’s objection, the State moved
    before, I thought I could really be objective in this case,
                                                                  Lambert be struck for cause. The trial court granted the
    but I drove home that day and I went through Jonestown,
                                                                  State’s challenge for cause, noting, ″I’m doing what [ar-
    which I do every [*474] day, in and out, and I thought
                                                                  ticle] 35.16 mandates that has to be done once her answer is
    I just don’t know that I could be as objective as I
                                                                  clear.″
    thought I could. And I feel really bad about this.
    So, it’s not just my indecision -- not indecision, but my     Article 35.16(a)(10) states, in pertinent part, that a juror may
    feeling on the death penalty. My other thing is that I        be struck for cause for the following reason:
    live in that area where there are a lot of other people
    that were impacted by this.                                       HN12 That from hearsay, or otherwise, there is
                                                                      established in the mind of the juror such a conclusion as
Lambert went on to note that at the time of the murders, she          to the guilt or innocence of the defendant as would
discussed the case with other people in the area and                  influence the juror in finding a verdict. To ascertain
 [**39] read extensively about the case. She stated that all of       whether this cause of challenge exists, the juror shall
the information that she had received had caused her to form          first be asked whether, in the juror’s opinion, the
an opinion regarding Appellant’s guilt and that it would              conclusion so established will influence the juror’s
interfere with her ability to sit on the jury.                        verdict. If the juror answers in the affirmative, the juror
                                                                      shall be discharged without further interrogation by
After the State passed the prospective juror, the trial court         either party or the court.
questioned Lambert:
                                                                  (Emphasis [**41] added). Following the State’s questioning
    Q. [THE COURT]: Let me ask the question in the way            of Lambert, the trial court had the discretion to clarify
    we need to have it asked. Based on the information that       Lambert’s position by asking further questions. See Heisel-
    you have heard in the media or read in the media, have        betz v. State, 906 S.W.2d 500, 510 & n.13 (Tex. Crim. App.
    you formed an opinion as to the guilt or the innocence        1995). Once clarified, however, any further questioning was
    of the defendant in this case?                                proscribed by statute. Id. at n.13. Accordingly, the trial court
    A. Yes.                                                       did not abuse its discretion in dismissing Lambert.

    Q. Would that opinion that you have formed as to his          We also note that Appellant’s reliance on Witherspoon and
    guilt or innocence affect your verdict?                       Witt is misplaced. As [*475] summarized by Appellant,
                                                                  Witherspoon and Witt stand for the proposition that a
    A. Yes.
                                                                  defendant has the ″right to an impartial jury drawn from a
The trial court excused the juror.                                venire that has not been tilted in favor of capital punishment
                                                                  by selective prosecutorial challenges for cause.″ See With-
Appellant objected to Lambert’s excusal, arguing that the         erspoon, 391 U.S. at 521-23; Witt, 469 U.S. at 418-21. Here,
State did not properly prove the reason for her excusal under     Lambert was not discharged because of her opposition to
Article 35.16 and that the defense had no opportunity to          the death penalty, but rather because she clearly indicated
rehabilitate her. The trial court explained,                      that her conclusion as to Appellant’s guilt or innocence
                                                                                                                Page 13 of 14
                              354 S.W.3d 457, *475; 2011 Tex. Crim. App. LEXIS 1669, **41

would influence her verdict. The trial court did not err in      that ″Coons is not competent to testify as an expert witness
excusing Lambert without additional questioning. Point of        on future dangerousness, [**44] which his own profession
error seven is overruled.                                        does not recognize, in a capital murder case at punishment
                                                                 because his testimony is unreliable under the Eighth
In point of error nine, Appellant complains that ″a large        Amendment.″ See Coble, 330 S.W.3d at 270-79.
portion of the State’s case at punishment [**42] was unfair
because it concerned factors outside of Appellant’s control      The record shows that Appellant filed a pre-trial motion for
or unrelated to Appellant’s personality.″ Citing Lockett v.      a Daubert4 hearing. [*476] However, no hearing was held.
Ohio, 438 U.S. 586, 604-05, 98 S. Ct. 2954, 57 L. Ed. 2d         The motion did not specify any expert to which it was
973 (1978), Appellant complains that testimony concerning        directed. Appellant also made no objections at trial to
the ″incompetency″ of TDCJ (i.e., TDCJ’s failure to protect      Coons’s qualifications or competency as an expert; nor did
its inmates from drugs, alcohol, and violence) violated his      he make any constitutional challenges regarding the
right to individualized sentencing under the Sixth, Eighth,      admission of Coons’s testimony. Appellant does not present
and Fourteenth Amendments.                                       any argument on appeal as to why Coons was not competent
                                                                 to testify in this case. Therefore, Appellant has preserved
Appellant argues, in both his brief and his reply brief, that    nothing for this Court to review. Tex. R. App. 33.1(a). We
he was denied individualized sentencing ″mostly due to the       also note that Appellant misquotes our opinion in Coble. We
testimony of A.P. Merillat, which holds [Appellant]              did not hold that Coons’s testimony in Coble violated the
responsible for TDCJ’s total incompetence in keeping             Eighth Amendent; rather, although Coons’s testimony was
anybody who enters its doors safe.″ Evidence at both the         not sufficiently reliable under Texas Rule of Evidence 702,
guilt and punishment phases showed that Appellant used           we held that its admission was not harmful as it did not
drugs and alcohol and that he was more violent when he did       affect the appellant’s substantial rights to a fair sentencing
so. At punishment, Merillat, a senior criminal investigator      trial. Coble, 330 S.W.3d at 287. We further noted that the
for the Texas Special Prosecution Unit, testified that inmates   Supreme Court has held that future dangerousness
in Texas prisons have access to drugs, alcohol, and weapons.      [**45] expert testimony such as that provided by Coons
He further testified that many violent crimes occur inside       meets the ″heightened reliability requirement of the Eighth
Texas prisons both in the general population and on death        Amendment.″ Id. at 270 (citing Barefoot v. Estelle, 463 U.S.
row. Merillat noted that he knew nothing about Appellant or      880, 103 S. Ct. 3383, 77 L. Ed. 2d 1090 (1983)).
his case, and that he was [**43] not opining as to whether
Appellant would be a future danger.                              We further note that, even if the trial court had erred in
                                                                 admitting Coons’s testimony, Appellant’s substantial rights
Appellant did not object at trial to the admission of the        to a fair sentencing trial were not violated. Unlike in Coble
complained-of evidence on constitutional or other grounds.       where Coons had lost his notes documenting his interview
Therefore, he presents nothing for our review. Tex. R. App.      with the defendant and had no independent memory of that
33.1(a). Further, even if Appellant preserved error, we have     interview, here Coons interviewed Appellant and based his
previously rejected similar arguments. See Jenkins v. State,     opinion regarding future dangerousness upon that interview
912 S.W.2d 793, 818 (Tex. Crim. App. 1995) (on motion for        in addition to pertinent records regarding Appellant and this
reh’g) (determining that ″evidence about the availability of     case. See Coble, 330 S.W.3d at 278-79. Moreover, Coons’s
drugs in prison was relevant to show appellant could be just     future dangerousness opinion was similar to the opinion of
as dangerous in prison society as he is in nonprison society     Appellant’s own expert, psychiatrist Dr. Robert Cantu.
where drugs are freely available″); see also Coble, 330          Cantu testified that if Appellant (1) had access to large
S.W.3d at 287-89 (rejecting the appellant’s claim that the       amounts of drugs or alcohol, (2) had the opportunity to harm
trial court erred by admitting Merillat’s testimony about the    someone weaker than himself, and (3) was in a relatively
Texas prison-classification system and violence in prison).      unstructured environment, then Appellant would be a future
                                                                 danger in prison. Further, both experts agreed with the
Appellant also complains that Dr. Richard Coons testified,       diagnosis that Appellant [**46] has ″intermittent explosive
based upon a two-hour interview with Appellant, that             disorder.″ As set forth in point of error eight, above, even
Appellant blamed ″the gun″ for the crime, and that there is      without Coons’s testimony, there was ample evidence that
a ″ready availability of weaker victims″ in the prison           there was a probability that Appellant would commit future
system. Citing Coble, he argues that this Court has found        acts of violence. Finally, the State mentioned, but did not

4
    Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993).
                                                                                           Page 14 of 14
                            354 S.W.3d 457, *476; 2011 Tex. Crim. App. LEXIS 1669, **46

emphasize, Coons’s complained-of testimony during closing   Delivered: December 14, 2011
arguments. Point of error nine is overruled.
We affirm the trial court’s judgment.                       Publish
Hervey, J.
