           IN THE COURT OF CRIMINAL APPEALS
                       OF TEXAS
                                       NO. AP-76,345


                        MILTON DWAYNE GOBERT, Appellant

                                             v.

                                 THE STATE OF TEXAS

              ON DIRECT APPEAL FROM CAUSE NO. D-1-DC-06-904006
                     THE 331ST JUDICIAL DISTRICT COURT
                               TRAVIS COUNTY

       C OCHRAN, J., delivered the opinion of the unanimous Court.

                                        OPINION

       Appellant was convicted of the 2003 capital murder of Mel Cotton by stabbing her

with a knife 107 times in the course of attempting to commit or committing kidnapping or

robbery. Based upon the jury’s answers to the special punishment issues, the trial judge

sentenced him to death. Appellant raises seven points of error. Finding no reversible error,

we affirm the judgment and sentence.
                                                                           Gobert   Page 2

                                  Factual Background

       In the early hours of October 6, 2003, five-year-old Demetrius Cotton was awakened

by the sound of his mother, Mel Cotton, screaming from her bedroom. He went into her

room and saw a strange man there–“kind of tall, bald, and buff.” He had a mustache and was

wearing boots and boxers. He had gloves on his hands. Demetrius saw his mom sitting on

the edge of the bed with duct tape on her mouth; the man was standing in front of her,

stabbing her in the arms with a sharp knife. She was trying to get away from him. She stood

up, but then lost her balance and fell. The man kept stabbing, so Demetrius “ran over and

tried to pull him down by his leg.” He said, “Stop,” but the man pushed him off, turned on

the bedside light and continued stabbing at his mom. The man told Demetrius, “sit down and

shut up,” so Demetrius sat down. He was scared.

       Then the man put duct tape on Demetrius’s ankles and mouth. He told Demetrius to

get out of the room, so the child hopped out into the hallway. The man locked the door

when Demetrius tried to get back inside the bedroom. He heard his mom scream, “Leave me

alone,” but the man said, “Give me the money” and “Where is it at in your purse?”

Demetrius hopped into his room and sat on a pallet of blankets beside his bed. He heard the

man take his mom’s phone and “stomp on it” in the bathroom. The man also cut the

telephone cord.

       Demetrius fell asleep, but he woke up when he heard the man come into his room.

The man “choked” Demetrius with both hands. Demetrius tried to scream, but he couldn’t.
                                                                              Gobert    Page 3

He blacked out. When he woke up later, he had a hole in his chest with blood coming out.

He went to his mom’s room. She was laying on the floor on her side. Demetrius felt her

neck. It was cold. “[S]he was gone.” He touched her hand and talked to her for a while.

Then he went to the bathroom for a washcloth to stop his chest from bleeding. He looked

to see if anyone else was there in the apartment. The man was gone. Demetrius ate a

popsicle, then went back to his room, got his stuffed caterpillar, and waited for a long time

for someone to come. He fell asleep again, but woke up early that Monday morning when

he heard knocking on the door. He took his stool to the door to see out of the peephole, and

when he saw his “Aunt Tweety,” he opened the door.

       Monica Salinas, who lived in the same Austin apartment complex as Mel Cotton and

Demetrius, heard a hysterical woman crying, “My sister is dead, my sister is dead, please help

me.” She ran up the stairs, saw Demetrius with duct tape still around his neck and Mel

Cotton’s body in the master bedroom, so she called 911. She saw “blood everywhere and

handprints of blood all over the room.”

       Paramedics rushed Demetrius to the hospital. He had four stab wounds in his chest.

They were so deep that a paramedic saw Demetrius’s lung inflating and deflating. Demetrius

said that he could hear the air coming out of the hole in his chest; it sounded like “a farting

noise.” Demetrius lost twenty to thirty percent of his blood volume and had a pneumothorax

(collapsed lung) and a pulmonary contusion. Doctors also determined that Demetrius had

been strangled. Although his wounds were life-threatening, Demetrius recovered.
                                                                                  Gobert     Page 4

       The medical examiner testified that Mel Cotton had a total of 107 stab wounds that

were inflicted during a drawn-out attack. Thirty-eight of the wounds were centered around

Ms. Cotton’s left breast, indicating “some degree of [the victim’s] incapacitation or lack of

movement.” Another group of wounds were in her back. She had approximately thirteen

defensive wounds to her hands and arms. Twenty of the wounds reached her internal organs.

She, like Demetrius, had been strangled. The medical examiner said that Ms. Cotton had

probably been conscious for about ten to twenty minutes after her jugular vein had been cut.

       Christina Pocharasang, appellant’s former girlfriend, learned of Ms. Cotton’s murder

later that day. She immediately suspected appellant. She testified that Ms. Cotton had

helped her move out of appellant’s apartment two weeks earlier by arranging for a man

named Kenneth to haul her heavy furniture. Appellant had been furious and accused Ms.

Cotton and Kenneth of stealing his things, including his vacuum cleaner.1 Christina called

appellant to ask him about the murder. When he answered the phone, appellant was

breathing heavily and said that he had been in a fight with Kenneth, who had stabbed him in

the stomach, causing an injury that required sixteen stitches. Christina then called the Austin

police to report her suspicions.

       Austin police discovered that appellant had an outstanding parole-violation warrant


       1
         Appellant left numerous threatening voicemails for Christina, saying such things as
“Yeah, ho, you go on and do what you like. I don’t give a f__ no more . But I bet you this one
thing. You still got my shit, you keep that. That’s yours. Since you distributed my shit to all this
different mother f____ and shit. And gave my shit to these niggers. You gave my shit to these
niggers. But bitch, one day you’re going to look up, and you’re going to see me. Bet that.”
                                                                                  Gobert    Page 5

and went to his apartment to arrest him. After peeking through his blinds, appellant refused

to open the door, so the officers made a forced entry. Appellant did not have a stab wound

in his stomach, but he did have cuts on his right hand that looked like those made when an

attacker loses his grip on a knife shaft and cuts his own hand.

       Officers obtained a search warrant for appellant’s apartment and car. They found

stain remover, bleach, and vinegar containers; a glove on top of the washing machine; and

a glove, tennis shoes, and a striped shirt inside the washing machine. DNA consistent with

that of Ms. Cotton’s DNA was found on the left tennis shoe, and DNA consistent with that

of appellant, Ms. Cotton, and an unknown male2 was found on the glove on top of the

washing machine. A latent fingerprint, matching appellant’s fingerprint, was found on Ms.

Cotton’s bedroom window blind.

       While in jail, appellant bragged to his cellmate about stabbing Ms. Cotton and

Demetrius. He recounted details of the crime, including wrapping Ms. Cotton in an

extension cord, washing his bloody clothes, and throwing the knife that he used in a lake.3

       Appellant called a jail guard, Deputy Tasha Lass, to testify that the inmates did not

have much privacy in their jail cells, thus suggesting that perhaps the cellmate could have

learned details about the murder from reading appellant’s case files in his jail cell.

       Appellant also made numerous phone calls from the jail to family members,


       2
            When the DNA analysis was made, the technician did not have Demetrius’s DNA.
       3
            During his punishment-stage testimony, appellant confirmed that he threw the knife into
the lake.
                                                                                      Gobert     Page 6

suggesting to one brother that he might remember that appellant and Mel Cotton had a sexual

relationship. Appellant’s older brother told appellant to stop asking him, his brother, and

their mother to lie for him. These calls were recorded and played at trial.4 In them, appellant

told various versions of the events.

        One of appellant’s brothers testified at trial to the version of events that appellant told

him. According to appellant, he and Mel Cotton had had sex that night, and then he went to

sleep in her bed. She later woke him up, and they began arguing. She came at him with a

knife, saying that she was going to shoot him with a gun. They struggled over the knife. He

got the knife, but when he tried to get dressed and leave, she attacked him again. Demetrius

came into the room and “fell” on the knife that his mother was holding. Appellant told his

brother that he had stayed with the little boy, giving him pain pills, until Demetrius’s aunt

arrived the next morning. Appellant told his family members that “wasn’t nothing wrong

with [Demetrius], he was–he’s alive and he wasn’t seriously hurt. . . . He wasn’t hurt bad at

all. He went to school the next day.”

        The jury found appellant guilty of capital murder.

        During the punishment phase, the State introduced appellant’s prior convictions for



        4
           In one of them, appellant told his brother that a jury would surely sentence him to death
if they heard that he had attacked and stabbed his mother when he was nineteen, so he wanted his
mother to lie about that event. “I can’t have her up there. That’s, that’s suicide. . . . What am I
going to look like in these folks’ eyes? . . . I mean it’s not about telling the truth, get up there and
tell the truth, that’s suicide, man. . . . How can you say if you love somebody that you’re gonna
sit up there and, and, and get up there and, and help go to the death chamber? That’s suicide for
me, man.”
                                                                              Gobert   Page 7

burglary of a habitation, robbery, false imprisonment, assault, and dating-violence assault.

       Christina Pocharasang testified again and recounted three different violent episodes.

One time, several months before the murder, appellant punched her in her face because she

did not want to cut her hair the way appellant wanted it cut. He chased her into the bathroom

and kept hitting her for about thirty minutes. Then, about two weeks before the murder,

appellant got angry when Christina asked him to go to his brother’s church. He closed the

bedroom door so Christina’s son couldn’t see him, and he choked Christina with both hands

around her neck. Christina decided to move out of town, and she contacted her friend, Mel

Cotton, who found Kenneth to help her move. But, in late September, Christina forgave

appellant and came back to Austin. One night, appellant attacked her as she was driving. He

punched her in the face five or six times, choked her neck, bit her on the shoulder,5 hit her

in her lower back about fifteen times, and crushed her cell phone so she couldn’t call for

help. He told Christina he was going to kill her. Christina finally escaped, drove to a

hospital, and called the police. Nine days later, appellant killed Mel Cotton.

       Another woman testified that she had dated appellant in 2002, but he got jealous and

began hitting her and grabbing her by the neck when he was angry. She told him that she

wanted nothing more to do with him. But one day he came over, and she got into his car to

talk to him. Appellant became angry again and, after she jumped out of his moving car, he

came after her and started hitting her in the face. Her father called the police and she filed



       5
           Six years later, Christina still had a scar from that bite.
                                                                                  Gobert    Page 8

assault charges against him.

       A third woman testified that she had dated appellant when they were both in high

school. He was often verbally abusive to her, but one day he got jealous and hit her in the

nose, then threatened to kill her as he forcibly took her back to his apartment. The next

morning she escaped by grabbing her car keys. She drove off, speeding and running red

lights when she saw appellant driving behind her. She stopped, got out of her car and started

calling for help, but no one paid attention to her, so she raced back to her car. Appellant was

on the roof of her car. She nevertheless drove to a friend’s house, got out, and appellant

drove off in her car. Several years later, appellant found her in Round Rock, burglarized her

friend’s home, stole a TV and purse, and kidnapped her. The police eventually found her

at appellant’s apartment, and he went to prison for burglary. She related another incident in

which appellant choked her when he found out she was dating someone else. Even though

appellant has been locked up in jail for years, she is still afraid that he will come back for her.

       A former cellmate testified that appellant assaulted him while he was lying in his

bunk. Appellant said that he was a Muslim and didn’t want to be in a cell with a Catholic.

Appellant accused the cellmate of farting while appellant was praying, and then he began

hitting the man in the chest, saying that he would kill him. The cellmate, in fear of his life,

asked to be moved. Appellant had numerous instances of disruptive conduct while in jail

and, at one point, was assessed fifteen days of administrative segregation for his actions.

       A former female jailer who had given appellant special privileges resigned when her
                                                                               Gobert    Page 9

superiors discovered that she had been “fraternizing” with appellant. Thereafter, she visited

appellant in jail seventeen times in six months.

         Tasha Lass, the female jailer whom appellant had called to testify during the guilt

stage, was called by the prosecution during the punishment stage. She admitted that she, too,

had been fraternizing with appellant for several weeks. She said that she had brought

appellant a cell phone so he could call her from the jail without their conversations being

recorded. They talked on the phone every day, and appellant repeatedly told Deputy Lass

that he loved her. She testified that he was still talking to her every day on the smuggled cell

phone.

         Another jailer testified that, after Deputy Lass’s testimony, he had searched

appellant’s jail cell and found the cell phone stuffed into a bag of Cheetos inside appellant’s

commissary bag. A cell phone charger was also found. Deputy Lass was then arrested and

charged with the felony of bringing a prohibited item into a correctional facility.

         Yet another officer testified that a piece of plastic had been wedged into appellant’s

leg brace that he was required to wear as he was transported each day from the jail to the

courtroom so that it would not lock. A different officer testified that appellant had tampered

with his leg brace on a second occasion as well. That time appellant was walking around in

the open courtroom with his leg brace unlocked.

         After the defense offered several mitigation witnesses and rested, the State then

recalled Tasha Lass to testify about “an escape plan.” This time, Deputy Lass testified that
                                                                                Gobert    Page 10

she had originally been a missionary in Romania, and then had traveled to Sri Lanka,

Australia, and England for eight years. She then became a police officer in Chattanooga,

Tennessee, and was named Patrol Officer of the Year in 2008. She moved to Austin, became

a deputy in June 2009, and first met appellant around Christmastime. She listened to him talk

about his case, his family, and his problems in jail. He made her feel “needed.” He told her

about his escape plan and wanted her to buy a storage shed so he could hide out “with food

and stuff” until he escaped to Dubai. He chose Dubai because it is a Muslim country and he

could not be extradited from there. He also wanted her a buy a .45 pistol with a silencer and

four magazines and bring it into the jail “so he could shoot people and locks to get out.”

       Appellant told Deputy Lass that he planned to call Deputy Fernandes over to his cell

at 2:30 a.m., shoot him, drag the deputy’s body into the cell, change into his clothes, grab his

car keys,6 shoot any other inmates who saw him, kill the control-room operator,7 take the

keys to the fire closet, grab the bag inside that closet that contained a rope, then go to the top

floor fire closet for another rope, go out the roof door, tie the two ropes together and attach

one end to the building, toss the rope over the edge and climb down, run over to the parking

garage and drive off in Deputy Fernandes’s car. Appellant would “knock out” Deputy Lass

and put her in the fire closet, but she did not believe that he would leave her alive. She said

that she did not want to aid in this escape plan, but appellant kept asking her every day.


       6
         Appellant told Ms. Lass that he had seen Deputy Fernandes drive in and out of the
parking garage, so he knew which car was his and where it was parked.
       7
           Appellant wanted Ms. Lass to be in the control room so she could give him the keys.
                                                                             Gobert    Page 11

       The State also called Dr. Richard Coons who testified that, in his opinion, a

hypothetical person with appellant’s history, conduct, and character would likely pose a

danger of violence in the future.

       Finally, the defense called appellant to the witness stand. He admitted that he had hurt

a lot of women. He said that he had hit his brother over the head with a statue and beaten his

mother and the women that he loved. It was because of “anger issues and situations. . . .

Maybe sometimes I go overboard.”

       Based on the jury’s answers to the special issues, the trial judge sentenced appellant

to death. After hearing a victim allocution statement by Mel Cotton’s sister, appellant

shouted, “That bitch wasn’t no angel. That was a bitch, a motherf___ bitch. F___ all y’all.

That was a bitch a ho bitch.” When the trial judge attempted to interrupt, appellant said, “No,

f__ you. F____ your allocution. F___ all you motherf____.”

       Thus ended the trial of Milton Dwayne Gobert.

                    The Admission of Evidence at the Punishment Phase

       In two points of error, appellant complains of the admission of expert testimony

offered at the punishment phase. In point of error one, appellant asserts that the trial court

erred under Daubert,8 Kelly,9 Coble,10 and the Eighth Amendment in admitting testimony by



       8
           Daubert v. Merrell Dow Pharm., 509 U.S. 579 (1993).
       9
           Kelly v. State, 824 S.W.2d 568 (Tex. Crim. App. 1992).
       10
            Coble v. State, 330 S.W.3d 253 (Tex. Crim. App. 2010).
                                                                                 Gobert     Page 12

A.P. Merillat, an investigator from the Special Prosecution Unit of the Texas Department of

Criminal Justice (TDCJ), concerning prison conditions and the opportunities for violence in

TCDJ. The trial judge barred the prosecution from asking “about specific cases that he

knows about” or other anecdotal stories, but otherwise allowed the State to develop Mr.

Merillat’s testimony.

       We have upheld the admission of Mr. Merillat’s educator-expertise testimony in

several previous cases as reliable and relevant to the future-dangerousness issue concerning

the opportunities for violence in prison society.11 But in Estrada v. State,12 we found that Mr.

Merillat’s unintentionally inaccurate testimony concerning reclassification of capital-murder

inmates was, in that particular case, reversible error.13 Mr. Merillat did not repeat that factual


       11
           See Coble, 330 S.W.3d at 287-89 (Merillat’s testimony about the Texas prison
classification system and violence in prison, offered to show a capital-murder defendant’s future
dangerousness, was admissible as educator-expertise information designed to assist the jury;
testimony was confined to specific information about operations of Texas prison system and
inmates’ opportunities for violence or productive behavior; the testimony was intended to
educate the jury about an area in which it lacked a thorough understanding and to cast doubt
upon the official prison data that the forensic psychologist who testified for defendant relied
upon); Threadgill v. State, 146 S.W.3d 654, 670 (Tex. Crim. App. 2004) (upholding admission
of photographs of bombs and weapons made by inmates to illustrate Merillat’s testimony that
violence was prevalent in TDCJ prisons). See also Sparks v. State, No. AP-76099, 2010 WL
4132769, *24 (Tex. Crim. App. Oct. 20, 2010) (not designated for publication) (“Merillat’s
testimony was generalized educator-expertise information designed to ‘assist’ the jury under
Rule 702. Therefore, the trial judge did not abuse his discretion in admitting it after determining
that Merillat was qualified to testify as an expert regarding the prison classification system and
opportunities for violence in prison” in punishment phase of capital-murder trial).
       12
            313 S.W.3d 274 (Tex. Crim. App. 2010).
       13
         Id. at 286-87 (when jury sent out note during its deliberations referring to Merillat’s
inaccurate testimony “that, after 10 years of G–3 status, a sentenced-to-life-without-parole capital
murderer could achieve a lower (and less restrictive) G classification status than a G–3 status,”
                                                                                  Gobert     Page 13

inaccuracy in the present case. We conclude that the trial judge did not abuse his discretion

in overruling appellant’s Rule 702 objections.

       Appellant also argues that the trial court’s admission of Mr. Merillat’s testimony

violated his Eighth Amendment right to individualized sentencing because what other

prisoners did or did not do in prison was not relevant to appellant. It was in response to that

argument that the trial judge barred the prosecutor from asking Mr. Merillat any questions

concerning other inmates or their specific instances of conduct. But the judge concluded that

generalized testimony concerning prison conditions, opportunities for violence, weapons

used, and raw data concerning the number of violent acts in TDCJ did not violate the Eighth

Amendment focus on individualized sentencing. Appellant asserts that Mr. Merillat’s

testimony “is that TDCJ is so grossly incompetent and so dangerous that the safety of all who

enter there is in jeopardy.”14 We do not read Mr. Merillat’s testimony as implying that prison

“is a relentless death trap” that imperils “the safety of all who enter there.” His point was

that TDCJ, like other prisons, cannot protect against all inmate violence.

       We have previously upheld the admission of Mr. Merillat’s background testimony




there was a reasonable probability that the jury relied upon that testimony in reaching its verdict).
       14
            Appellant’s Brief at 12. Appellant goes on to assert that Mr. Merillat’s “relentless
message is that TDCJ is a death trap, and the only way to make sure that Appellant does not add
to it is to kill him, since TDCJ is totally ineffectual in safeguarding any of the many, many
potential victims who work and enter there.” This may be one way of characterizing Mr.
Merillat’s testimony, but it is certainly not a necessary one.
                                                                                 Gobert     Page 14

over an Eighth Amendment claim in an unpublished opinion.15 While the probative value

of Mr. Merillat’s testimony pales in comparison to that concerning appellant’s specific acts

of violence while incarcerated, its admission did not violate appellant’s Eighth Amendment

right to an individualized sentencing procedure.           The jurors could make an Eighth

Amendment “individualized” assessment of appellant’s likelihood to commit future acts of

violence based upon his specific actions–some of which he testified to himself–while

incarcerated.16

       We overrule appellant’s first point of error.

       In his second point of error, appellant claims that the trial judge erred in admitting the

opinion of Dr. Coons on the issue of future dangerousness. After a voir dire examination

outside the presence of the jury appellant argued, inter alia, that Dr. Coons

       does not have and has not propounded a sufficiently valid scientific technique
       or theory that has been accepted as valid by the scientific community.


       15
          Espada v. State, No. AP-75,219, 2008 WL 4809235, *9-10 (Tex. Crim. App. Nov. 5,
2008) (not designated for publication) (upholding admission of Merillat’s testimony about
violent acts and gangs in prison over defendant’s objection that the testimony was unfairly
prejudicial and deprived him of the right to an individualized determination of his sentence).
       16
           Appellant testified and discussed his nine years in prison. He, like Mr. Merillat, talked
about the opportunities for violence in prison: “So violence is a part of life in prison, not saying
that you go inflict violence, because people that’s not part of a gang, like me, you don’t go
looking for trouble.” Appellant testified at length about prison gangs and noted that security had
been “beefed up” since the Texas Seven escape. He knowledgeably discussed “crash gates,”
security guards, and the prison classification system. He talked about how he had gashed open
the back of another inmate with a hoe when he was in minimum custody. He said that he had
had five or six fights while in prison, and he “finished them all” but “ain’t nobody lost they life”
in those fights. He stated that he told a female prison guard that he “would kick her bitch ass,”
and he threatened to hit a prison guard with his hoe. Appellant also said that he had been in four
or five fights while awaiting trial in the Travis County jail.
                                                                                Gobert    Page 15

               Psychiatry is not the study of prediction of future danger; it is, as he has
       acknowledged, the study of mental disease and mental disorders. Future
       dangerousness is not one of these. Basically his qualifications do not relate to
       making such predictions.
               He has failed to identify any scientific literature or documentation that
       supports this technique, whatever technique he plans to use. . . .
               Basically his testimony does not rely upon principles that are involved
       in the field of psychiatry.

       Appellant also filed a motion and brief outlining his reasons for excluding Dr. Coons’s

opinion testimony under Rules 702-703, as well as the federal and Texas Constitutions. We

conclude that the trial judge abused his discretion in admitting Dr. Coons’s opinion on future

dangerousness17 in this case for the same reasons that we held it inadmissible in Coble v.

State.18 Here, as in that case, Dr. Coons provided no scientific, psychiatric, or psychological

research or studies to support his idiosyncratic methodology for predicting whether a

hypothetical person would commit future acts of violence.19

       However, we conclude that the admission of Dr. Coons’s testimony was harmless

error.20 Given the overwhelming evidence of appellant’s life-long penchant for violence,

the circumstances of the capital murder, the evidence of his conspiracy to commit capital



       17
          Some of Dr. Coons’s testimony, such as that relating to “conduct disorder” as “the
juvenile version of antisocial personality disorder,” a mental disorder described in the DSM-IV
that can cause a person to become violent, was relevant, sufficiently reliable, and admissible.
Only his “future dangerousness” opinion based on the lengthy hypothetical posed by the State
was insufficiently supported by a reliable methodology.
       18
            330 S.W.3d 253 (Tex. Crim. App. 2010).
       19
            Id. at 277-80.
       20
            See TEX . R. APP. P. 44.2(b)
                                                                                  Gobert    Page 16

murder to effectuate his escape from jail, his own testimony concerning his prior violence

in prison and toward anyone–including his own mother–who angers him, we are confident

that this error did not affect appellant’s substantial rights to a fair sentencing trial.21

       In this trial, unlike that in Coble, the jury was not considering the future

dangerousness of a model prisoner. The evidence in this case showed that, during prior

periods of incarceration, appellant had

       !         attacked a fellow prison inmate with a hoe, gashing him in the back;

       !         threatened to hit a prison guard with a hoe;

       !         threatened to fight other prison guards;

       !         gotten into “five or six” fights with fellow prison inmates;

       !         gotten into “four or five” fights with fellow jail inmates;

       !         developed inappropriate relationships with at least two female jail guards and
                 manipulated them into providing him with contraband or special privileges;

       !         plotted to murder a jailer and steal his car keys and car to effectuate appellant’s
                 escape;

       !         plotted to kill any other inmates or jailers who might witness that planned
                 escape; and

       !         manipulated his leg brace so that it could not lock and impede his mobility in
                 the courtroom during his capital-murder trial.

       Dr. Coons’s opinion concerning a hypothetical person in appellant’s position was, at

most, superfluous to the specific testimonial evidence of appellant’s proven dangerousness



       21
            See Coble, 330 S.W.3d at 280.
                                                                                 Gobert    Page 17

both in prison and in free society.

       Furthermore, the State did not emphasize or rely upon Dr. Coons’s opinion in closing

argument. One prosecutor briefly mentioned Dr. Coons and his methodology:

               Now, remember the analysis that Dr. Coons uses when he is deciding
       whether someone is going to be a future danger. If this is helpful to you, you
       can use it. It is one he has used for many years. If there is some other analysis
       that you want to use, of course, that’s fine, too. Remember he looks at the
       facts of the capital murder, the person’s history of violence, his attitude about
       the use of violence, his personality and behavioral characteristics, his
       conscience, and the society that he’s going to be in.

The other prosecutor did not even mention Dr. Coons during his closing argument, but the

defense discounted Dr. Coons’s methodology and the basis for his opinion: “Dr. Coons, no

literature or scientific study basis for what he does. I mean, anybody could come in and give

you that opinion.” The jury did not need any expert’s opinion to determine whether appellant

would likely commit acts of violence in the future just as he had done in the past. They heard

it from the horse’s mouth. Because the admission of Dr. Coons’s opinion testimony was

harmless error, we overrule appellant’s second point of error.

                  Challenges to the Constitutionality of Article 37.071

       In his third point of error, appellant asserts that Article 37.071, the statute that sets out

the Texas capital-murder sentencing procedure, is unconstitutional for myriad reasons.

Appellant relies upon eleven different motions, memoranda, or written objections that he had

filed before and during trial. This point of error, combining eleven different and distinct

claims, is multifarious, and we could properly dismiss this entire point of error for that
                                                                                 Gobert    Page 18

reason.22 Nevertheless, in the interest of justice, we will address the three legal theories that

appellant briefed on appeal.

       Appellant asserts that Article 37.071 is inadequate and unconstitutional because

prosecutorial discretion is “too broad to guarantee that the death penalty will be fairly and

evenly applied in all 254 counties.” We have repeatedly rejected this claim,23 and appellant

offers no persuasive reasons why those decisions should be overruled.

       Appellant also claims that Article 37.071 is inadequate and unconstitutional because

the future-dangerousness issue is submitted to the jury, but it is not alleged in the indictment.

We have repeatedly rejected this claim as well,24 and appellant’s arguments do not persuade

us that those decisions should be overruled.

       Finally, appellant claims that the types of evidence currently used by prosecutors to

prove death-worthiness are unreliable and therefore the statute is unconstitutional. He asserts

that, because prosecutors offer testimony by such witnesses as Mr. Merillat and Dr. Coons,

“Article 37.071 invites nothing but unfairness in determining who gets the death penalty,

how that issue is determined, and the type of evidence typically [relied] on to make that



       22
        Aldrich v. State, 928 S.W.2d 558, 559 n.1 (Tex. Crim. App. 1996); Sterling v. State,
800 S.W.2d 513, 518 (Tex. Crim. App. 1990).
       23
          See, e.g., Busby v. State, 253 S.W.3d 661, 667 (Tex. Crim. App. 2008); Threadgill v.
State, 146 S.W.3d 654, 671-72 (Tex. Crim. App. 2004).
       24
          See Threadgill, 146 S.W.3d at 672 (“‘A defendant indicted for capital murder is
effectively put on notice that the special issues under Article 37.071 will be raised, so such
procedural provisions need not be alleged in the indictment.’”) (quoting Moore v. State, 969
S.W.2d 4, 13 (1998)).
                                                                                  Gobert    Page 19

determination.”25 But the fact that some prosecutors, in some cases, have offered some

evidence that might be improper does not render the statute unconstitutional in all of its

applications.26 And appellant has failed to show that Article 37.071 was unconstitutional as

applied to him as we have already held that (1) the trial judge did not abuse his discretion in

admitting Mr. Merillat’s testimony, and (2) the erroneous admission of Dr. Coons’s opinion

testimony in this case was harmless.27 Appellant’s third point of error is overruled.

                    The Mid-Trial Continuance to Investigate Tasha Lass

       In point of error four, appellant asserts that the trial judge erred in failing to grant a

longer mid-trial continuance so the defense could investigate the background and testimony

of its own witness, Deputy Tasha Lass. And, in point of error five, appellant asserts that his

trial attorneys were ineffective in failing to investigate Deputy Lass before calling her as a

witness in the defense case-in-chief.

       As noted above, appellant called Deputy Lass in the guilt stage to testify to the lack

of privacy in the Travis County jail cells. Her testimony could explain how appellant’s

cellmate might have learned about the details of the capital murder from a source other than




       25
            Appellant’s Brief at 28.
       26
          See Tex. Workers’ Comp. Comm’n v. Garcia, 893 S.W.2d 504, 518 (Tex. 1995) (facial
constitutional challenge requires a showing that a statute is unconstitutional in every application);
Gillenwaters v. State, 205 S.W.3d 534, 536 n.2 (Tex. Crim. App. 2006).
       27
           See Gillenwaters, 205 S.W.3d at 537 n.3 (“A claim that a statute is unconstitutional ‘as
applied’ is a claim that the statute, although generally constitutional, operates unconstitutionally
as to the claimant because of his particular circumstances.”).
                                                                            Gobert   Page 20

appellant’s confession to him. When the defense requested that Deputy Lass be allowed to

remain in the courtroom after her short testimony was complete, however, the prosecutors’

suspicion were aroused.     They investigated and later called Deputy Lass during the

punishment phase to testify to her improper relationship with appellant and to the fact that

appellant had manipulated her into sneaking a cell phone into the jail for him. The State

called her again when, at the suggestion of her own attorney, she admitted that appellant had

tried to talk her into bringing him a .45 pistol, silencer, and four magazines of ammunition

to help him implement his escape plan.

       After hearing the testimony of the escape plan, appellant’s counsel made an oral

motion for continuance because Deputy Lass’s testimony was “highly inflammatory” and

“devastating, to say the least. . . . I mean, for all we know she may be psychotic.” Counsel

explained, “We need to have my investigator check her background, check some of the stuff

she said, whether or not it’s true, classic impeachment stuff that we’re now being denied

because all of a sudden this stuff just came up.”

       The trial judge told the prosecutors to give defense counsel any criminal record they

could find on Deputy Lass, and he suggested that counsel take her on voir dire to “establish

a baseline” for impeachment research. After completing that voir dire, the trial judge

postponed cross-examination until the next day to give the defense time to research possible

avenues of impeachment. The next day, defense counsel said that they had not had enough

time to make a thorough investigation, so the trial judge gave them a daylong continuance
                                                                                Gobert    Page 21

and ordered jailers to permit defense counsel to view appellant’s cell and the jail layout.

       When the court reconvened, defense counsel made another oral motion for

continuance.    At that point, the trial judge overruled the motion, stating that cross-

examination was likely the best means of discovering information because he would not

allow other witnesses to impeach Deputy Lass on collateral matters.

       First, we hold that appellant failed to preserve error because he did not file a sworn

written motion for continuance.28 Although he might be excused from filing a written motion

immediately after Deputy Lass’s direct examination, he clearly had an opportunity to file a

written motion the next day–when the trial judge granted a daylong continuance–or the day

after that–when the trial judge denied any further continuance. Moreover, appellant did not

file a motion for new trial on this basis, setting out what specific admissible impeachment

evidence he would have discovered had a longer continuance been granted.29

       Second, appellant has failed to show that the trial judge abused his discretion in

declining to grant a lengthier continuance because he has not shown any prejudice. In Gallo

       28
          Dewberry v. State, 4 S.W.3d 735, 755 (Tex. Crim. App. 1999); see TEX . CODE CRIM .
PROC. art. 29.03 (“A criminal action may be continued on the written motion of the State or of
the defendant, upon sufficient cause shown; which cause shall be fully set forth in the motion. A
continuance may be only for as long as is necessary.”); id., art. 29.08 (“All motions for
continuance must be sworn to by a person having personal knowledge of the facts relied on for
the continuance.”).
       29
           See, e.g., Varela v. State, 561 S.W.2d 186, 191 (Tex. Crim. App. 1978) (no error in
denying motion for continuance when there is no motion for new trial alleging the failure of the
trial court to grant a motion for continuance and no evidence showing what a missing witness
would have testified to); Love v. State, 730 S.W.2d 385, 401 (Tex. App.–Fort Worth 1987, no
pet.); Chambliss v. State, 633 S.W.2d 678, 682-83 (Tex. App.–El Paso 1982), aff’d on other
grounds, 647 S.W.2d 257 (Tex. Crim. App. 1983).
                                                                                Gobert     Page 22

v. State,30 we held that “a bare assertion that counsel did not have adequate time to interview

the State’s potential witness does not alone establish prejudice.” 31 Here, appellant has failed

to show what impeachment evidence he would have uncovered if he had been granted a

longer continuance and how the inability to present that admissible evidence caused his trial

to be unfair.32

       Finally, to establish reversible error based on the denial of a motion for continuance,

“a defendant must demonstrate both that the trial court erred in denying the motion and that




       30
            239 S.W.3d 757 (Tex. Crim. App. 2007).
       31
          Id. at 764; see also Janecka v. State, 937 S.W.2d 456, 468 (Tex. Crim. App. 1996)
(capital-murder defendant who asserted that trial judge abused his discretion by refusing to grant
a motion for continuance because he had not had sufficient time to interview witnesses failed to
show any specific prejudice; thus, no error in denying motion). See also Quinones v. State, No.
13-10-00140-CR, 2011 WL 3841586, *3 (Tex. App.–Corpus Christi Aug. 25, 2011, n.p.h.) (not
designated for publication) (trial judge did not abuse discretion in denying motion for
continuance when defendant claimed that he did not have sufficient time to fully investigate
State’s witness and recently obtained medical records to conduct effective cross-examination
because defendant failed to show specific prejudice); Lutz v. State, No. 04-04-00236-CR, 2005
WL 1551722, *1-3 (Tex. App.–San Antonio July 6, 2005, no pet.) (not designated for
publication) (trial judge did not abuse his discretion in granting only a fifteen-minute recess to
allow defense counsel to interview State’s “surprise” eyewitness; defendant failed to demonstrate
actual prejudice or show “what length of time would have been sufficient to allow him to
adequately prepare” for witness’s testimony).
       32
          See Cooper v. State, 509 S.W.2d 565, 567-68 (Tex. Crim. App. 1974) (trial judge did
not abuse his discretion in denying mid-trial motion for continuance when defendant claimed he
was “surprised” by a State’s witness identifying him as one of the robbers although, before trial,
she had told defense counsel that she could not identify defendant; “Neither the motion for
continuance nor any statement by appellant’s counsel found in the record indicated to the trial
court how counsel could have benefitted by a continuance, or that there was any expectation that
a continuance would enable appellant to present any fact or facts contrary to the identification
testimony given by [the surprise witness].”).
                                                                               Gobert     Page 23

the lack of a continuance harmed him.”33 That is, appellant must offer evidence to satisfy

three separate prongs:      (1) the trial judge abused his discretion in failing to grant a

continuance because he would have discovered admissible impeachment evidence about

Deputy Lass; (2) his cross-examination of Deputy Lass was circumscribed as a result of that

ruling; and (3) his inability to fully cross-examine Deputy Lass with admissible impeachment

evidence was so critical that it caused his sentencing hearing to be unfair and the result

unreliable. Appellant has not satisfied any of those three prongs. We therefore overrule his

fourth point of error.

       In his fifth point of error, appellant asserts that his trial counsel were constitutionally

ineffective because they failed to investigate Deputy Lass before calling her to the witness

stand. As the State notes, it was appellant who suggested that his attorneys should call

Deputy Lass.        Nonetheless, Deputy Lass’s testimony concerning her inappropriate

relationship with appellant, her conduct in smuggling in a cell phone for him, and appellant’s

confiding his murderous “escape plan” to her is so unexpected that we cannot find that

counsel’s failure to independently investigate the potential for this type of relationship was

deficient conduct.

       Counsel has a duty to conduct an independent investigation into the facts of the case

and “should not blindly rely on the veracity either of his client’s version of the facts or




       33
            Gonzales v. State, 304 S.W.3d 838, 843 (Tex. Crim. App. 2010).
                                                                                Gobert    Page 24

witness statements in the State’s file.”34 But counsel’s duty to investigate his own witnesses

and their relationship to the client is not absolute; he is obliged only to make a reasonable

decision as to whether a particular investigation is necessary.35 Reviewing courts “must

indulge [the] strong presumption” that counsel “made all significant decisions in the exercise

of reasonable professional judgment.”36          Thus, “[j]ust as there is no expectation that

competent counsel will be a flawless strategist or tactician, an attorney may not be faulted

for a reasonable miscalculation or lack of foresight or for failing to prepare for what appear

to be remote possibilities.” 37

       Appellant fails to explain why his counsel should have anticipated that Deputy Lass

was carrying on an improper relationship with appellant and would testify to the cell-phone-

smuggling incident or the “escape plan.” Appellant himself knew these facts, of course, but

they are so unusual and unlikely that an objectively reasonable attorney is not deficient for

failing to investigate the possibility of such a relationship before calling a deputy to testify

to the lack of privacy in jail cells.38 We cannot conclude that counsel’s conduct in this regard


       34
            McFarland v. State, 928 S.W.2d 482, 501 (Tex. Crim. App. 1996).
       35
         Strickland v. Washington, 466 U.S. 668, 690-91 (1984) (“counsel has a duty to make
reasonable investigations or to make a reasonable decision that makes particular investigations
unnecessary.”) (emphasis added).
       36
            Id. at 689-90.
       37
            Harrington v. Richter, 131 S. Ct. 770, 791 (2011).
       38
          See id. (counsel need not be prepared for “any contingency”; defense attorney was not
ineffective for failing to retain forensic expert when he reasonably believed that State was not
going to call its own forensic expert and State originally had not planned to call any expert).
                                                                                 Gobert     Page 25

fell below prevailing professional norms, especially as the prosecutors and trial judge were

clearly just as astounded by this evidence as appellant’s counsel. The only two people who

knew about this evidence were appellant and Deputy Lass; if appellant did not want this

relationship exposed, he should not have suggested Deputy Lass as a witness.

       Appellant’s counsel had no reason to suspect any secret relationship between appellant

and a law-enforcement officer and thus no reason to investigate that relationship or the

officer’s background. “Counsel was entitled to formulate a strategy that was reasonable at

the time and to balance limited resources in accord with effective trial tactics and

strategies.”39 To hold otherwise, would require counsel to be prepared for “any contingency”

regardless of how improbable or remote it may be and would require counsel to divert scarce

resources to investigate minor law-enforcement witnesses whose veracity and integrity may

normally be assumed.40

       Furthermore, we should not find that counsel’s failure to investigate Deputy Lass’s

relationship with appellant before calling her as a minor witness was “so outrageous that no

competent attorney would have engaged in it,” without affording counsel the opportunity to




       39
            See id. at 789.
       40
           See id. at 791 (holding that lower court had erred in suggesting that counsel must be
prepared for “any contingency”); Yarborough v. Gentry, 540 U.S. 1, 8 (2003) (per curiam)
(stating that there is a “strong presumption” that counsel’s attention to certain issues to the
exclusion of others reflects trial tactics rather than “sheer neglect”); Bobby v. Van Hook, 130 S.
Ct. 13, 19 (2009) (per curiam) (counsel may avoid investigation likely to yield only cumulative
evidence because it will “distract[] from more important duties”).
                                                                                  Gobert    Page 26

explain.41 Because appellant has not shown constitutionally deficient performance by his

counsel, we need not address the second, prejudice prong of Strickland.42 We overrule

appellant’s fifth point of error.

                Trial Counsel’s Statement that Appellant Was Testifying
                           “Against the Advice of Counsel”

       In his sixth point of error, appellant complains that his trial counsel provided

ineffective assistance of counsel by telling the jury that appellant was testifying against the

advice of counsel. He claims that trial counsel undermined his Fifth and Sixth Amendment

right to testify by letting the jury know that counsel thought it was a bad idea.

       At the end of the punishment phase, appellant’s counsel informed the trial judge,

outside the presence of the jury, that appellant insisted on exercising his right to testify. All

three defense counsel were concerned and registered their opposition, on the record, to

appellant’s decision. When lead counsel began his direct examination of appellant before

the jury, he acknowledged his disagreement with appellant’s decision to testify and

characterized appellant’s decision to plead for his life as one that would subject him to




       41
          See Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005) (“‘[T]rial
counsel should ordinarily be afforded an opportunity to explain his actions before being
denounced as ineffective.’ Absent such an opportunity, an appellate court should not find
deficient performance unless the challenged conduct was ‘so outrageous that no competent
attorney would have engaged in it.’”) (citations and footnotes omitted).
       42
         Strickland, 466 U.S. at 694 (to establish prejudice, a defendant must show “a
reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.”).
                                                                              Gobert    Page 27

“dehumanization” by the prosecutor.43 This introductory colloquy–that appellant wanted to

take the witness stand to make a plea for his life even though he knew the prosecutor would

attempt to shred his story and dehumanize his actions–set the stage for the beginning of

counsel’s impassioned closing argument at punishment: “Milton Dwayne Gobert wanted his

opportunity to come up here and basically ask each one of you, don’t take my life. And I

know he did something very terrible and it’s going to be hard for you to listen to his plea.

All I can do is say, please, don’t take his life.” Then, at the end of his argument, counsel

circled back again to the colloquy at the beginning of appellant’s testimony and plea for his

life: “I am pleading with you. He pleaded with you. He said, spare my life, spare my life.”

       Appellant cites no case law from any jurisdiction holding that counsel’s introductory

questions expressing concern about a defendant’s decision to testify and subject himself to

cross-examination are constitutionally deficient. As the State points out, the limited authority



       43
         The colloquy was as follows:
Q:     Mr. Gobert, you asked–you asked to address this jury; is that correct?
A:     Yes, sir.
Q:     Let me just go through some ground rules with you, okay, because you and I don’t
       necessarily agree with this, correct? It that right?
A:     Yes, sir, we don’t agree.
Q:     And you know that I have concerns that because you are taking the witness stand they are
       going to be able to question you about everything and try to make you look bad. You saw
       what happens on that witness stand to witnesses. You know what happens to them, don’t
       you?
A:     Yeah. It is not a concern, though, to me.
Q:     Okay. But you wanted to address this jury and make a plea for you life, didn’t you?
A:     Yes, sir.
Q:     Even though in making that plea for your life, now they are going to put you under
       intense cross-examination to dehumanize you. Do you know that?
A:     Well, they did–done a lot of dehumanizing, yes, sir. I’m not concerned with that.
                                                                                Gobert    Page 28

on this issue indicates that counsel’s conduct was both reasonable and non-prejudicial. The

State cites to Noel v. Norris,44 in which the Eighth Circuit upheld the state court’s finding that

counsel’s statement during direct examination that his client–a capital-murder defendant–was

testifying against counsel’s advice “was designed to impress the jury with [the defendant’s]

sincerity.”45 The Eighth Circuit held that “[t]he trial strategy that counsel pursued was not

professionally unreasonable. Our conclusion finds strong support in the fact that [the

defendant] could not identify, nor could we find, a single case where counsel, under similar

facts, was found to be ineffective.” 46

       The record in this case reflects that counsel’s apparent strategy was a reasonable one:

he was framing appellant’s decision to testify and plead for his life as something he felt so

strongly about that he was willing to risk the consequences of a merciless cross-examination.

As the State notes, “Counsel used the opportunity to frame the State’s subsequent cross-




       44
            322 F.3d 500 (8th Cir. 2003).
       45
          Id. at 502. The colloquy in that case, as described by the Arkansas Supreme Court, was
as follows:
Q:      All right. Now, Riley, you’re taking the stand here because you want to tell the jury your
        story. Is that correct?
A:      Yes, sir.
Q:      And that’s over my advice?
A:      Yes, sir.
Q:      Against my advice?
A:      Yes, sir.
Noel v. State, 26 S.W.3d 123, 127 (Ark. 2000).
       46
            322 F.3d at 502.
                                                                              Gobert    Page 29

examination as dehumanizing not only of appellant but also of other witnesses.” 47

       Appellant asserts that the colloquy concerning the advisability of testifying takes place

outside the presence of the jury, but “[i]n this case the colloquy took place in front of the

jury, and was of benefit only to trial counsel,” not appellant.48 This is not entirely accurate.

All three counsel expressed their disagreement with appellant’s decision to testify on the

record outside the presence of the jury. Counsel had no need to “benefit himself” by

repeating that disagreement in front of the jury. The record supports the inference that this

strategy was designed to benefit his client and emphasize how strongly appellant wanted to

make a sincere personal plea to the jury for mercy.

       We find that appellant has failed to establish that his counsel provided ineffective

assistance of counsel in his strategy of framing appellant’s choice to testify despite counsel’s

concerns about a “dehumanizing” cross-examination. Because we find that counsel’s

performance was not constitutionally deficient, we need not address the second, prejudice

prong of Strickland.49 We overrule appellant’s sixth point of error.

                                   The Search Warrant Affidavits

       In his seventh and final point of error, appellant claims that the trial judge erred in

failing to grant his motion to suppress evidence of his DNA and items taken from his



       47
            State’s Brief at 59.
       48
            Appellant’s Brief at 33.
       49
            466 U.S. at 694.
                                                                                 Gobert    Page 30

apartment and car under four separate search warrants. He argues that the first two

affidavits did not establish probable cause to search and the second two affidavits were

based, in part, on his illegally obtained confession. He claims that, without the inclusion of

those statements, the magistrate lacked a substantial basis for concluding that there was

probable cause to search appellant’s apartment or obtain his DNA. We conclude that all four

affidavits contain sufficient, lawfully obtained, information to support a finding of probable

cause to search.

       At a pretrial hearing, the trial judge granted appellant’s motion to suppress his

confession. The judge found that, at the beginning of the interview, appellant had invoked

his Fifth Amendment right to counsel, thus the detectives violated his Miranda rights in

continuing to question him after that invocation.50 Appellant then filed a motion to suppress

evidence obtained from four separate search warrants.

       At the suppression hearing, Officer Fuentes testified that he prepared affidavits on

October 7, 2003, to search appellant’s apartment and car. He drafted those affidavits and

search warrants–State’s Exhibit 5 & 6–at the time that appellant was being interviewed by

others, and he did not rely upon any information from that ongoing interview. In his

affidavit, Officer Fuentes relied upon information

       !       from Demetrius that the murderer was “a male, not white, with a shaved head
               and mustache wearing a striped shirt and silver shorts,” and Demestrius’s


       50
          The State pursued a pretrial appeal of this ruling, but this Court ultimately upheld the
trial judge’s ruling excluding the confession. State v. Gobert, 275 S.W.3d 888, 889 (Tex. Crim.
App. 2009).
                                                                              Gobert    Page 31

              statement that the murderer put his mother’s purse inside a black bag that the
              man brought with him;

       !      from Christina Pocharansang that she suspected appellant was the murderer
              and her report that appellant had assaulted her the previous month, so she
              called Ms. Cotton to help her secretly move out of appellant’s apartment, that
              Ms. Cotton had several friends help her move out, but in the process “they
              stole some of Gobert’s property”;

       !      that appellant had open arrest warrants for parole violations and assault;

       !      that when officers went to arrest appellant at his apartment, the manager
              showed them appellant’s blue Taurus car;

       !      that when officers arrested appellant, they saw what appeared to be blood in
              several places on the living room carpet;

       !      that, after arresting appellant, one of the officers looked into appellant’s blue
              Taurus and saw “what appeared to be blood on the steering column and on the
              driver’s door lock”;

       !      that, after arresting appellant, the officers saw knife cuts on appellant’s hands;

       !      from appellant’s brother’s girlfriend that appellant arrived at their apartment
              shortly after the murders to take a shower and when he arrived he was carrying
              a black duffel bag.

       Officer Fuentes went through all of this information and verified that none of it came

from appellant. The magistrate found probable cause to search both appellant’s apartment

and car based on this information and officers conducted those searches, under warrant, the

next day. They seized numerous items of evidentiary value.

       Detective Burgh then compiled a second search warrant for appellant’s apartment on

October 15, 2003. This affidavit includes the same information as that in the first two

affidavits, but added some information from appellant’s confession as well. The only
                                                                               Gobert    Page 32

evidence seized under this third warrant was a black and blue bag with toiletries in it. Det.

Burgh also compiled a November 5, 2003, search warrant and affidavit to collect appellant’s

DNA. That affidavit included the same information that was in the October 7th affidavits as

well as information from appellant’s confession.

       The trial judge overruled the motion to suppress evidence and entered findings that

the first two search warrant affidavits contained sufficient facts to establish probable cause

and the second two affidavits contained sufficient facts to establish probable cause, even

after appellant’s illegally obtained statements were excluded.

       The Fourth Amendment expresses a strong preference for searches to be conducted

pursuant to a search warrant based on probable cause.51 “Probable cause for a search warrant

exists if, under the totality of the circumstances presented to the magistrate, there is at least

a ‘fair probability’ or ‘substantial chance’ that contraband or evidence of a crime will be

found at the specified location.”52 Our duty, and that of the trial judge, in reviewing the

magistrate’s finding of probable cause “is simply to ensure that the magistrate had a

substantial basis for concluding that probable cause existed.” 53 As appellant aptly noted,

reviewing courts do not act as a “rubber stamp,” but “the magistrate’s decision should carry




       51
         Illinois v. Gates, 462 U.S. 213, 236 (1983); Rodriguez v. State, 232 S.W.3d 55, 61
(Tex. Crim. App. 2007).
       52
         Flores v. State, 319 S.W.3d 697, 702 (Tex. Crim. App. 2010) (citing Gates, 462 U.S. at
243 n.13).
       53
            Flores, 319 S.W.3d at 702.
                                                                               Gobert   Page 33

the day in doubtful or marginal cases, even if the reviewing court might reach a different

result upon de novo review.” 54

       Appellant argues that, at the time the first two affidavits were drawn up, “there was

a lot of circumstantial evidence included, but the crux of the affidavits” was Christina’s

“guess” that appellant was the murderer. We disagree. The magistrate had before him not

only Christina’s suspicion, but also her cogent reasons for that suspicion, as well as the

evidence of bloodstains on appellant’s carpet, bloodstains on his car steering column and

driver’s door lock, evidence of cuts–apparently superficial knife wounds–on appellant’s

hands, evidence that appellant had arrived at his brother’s apartment shortly after the murders

to take a quick shower and then leave, and Demetrius’s description of the murderer–a

description consistent with appellant’s appearance.

       Based on the totality of the information contained in the first two affidavits and giving

“great deference” to the magistrate’s finding, we agree that the magistrate had a “substantial

basis” for concluding that the affidavits established probable cause to search appellant’s car

and apartment.55 Thus, the trial judge did not err in denying appellant’s motion to suppress

evidence obtained as a result of the first two search warrants.

       As for the second two search warrants, State’s Exhibits 7 & 8, the affiant repeated,



       54
        Appellant’s Brief at 36 (quoting WAYNE LA FAVE , SEARCH AND SEIZURE: A TREATISE
                                             th
ON THE FOURTH AMENDMENT § 11.7(c) at 452 (4 ed. 2004 & Supp. 2009-2010)).

       55
            State v. Jordan, 342 S.W.3d 565, 569 (Tex. Crim. App. 2011); Flores, 319 S.W.3d at
702.
                                                                                  Gobert    Page 34

almost verbatim, all of the information contained in the first two affidavits and then added

more facts gleaned from appellant’s illegally obtained confession. However, we agree with

the trial judge’s finding that, excising the additional information from that confession, there

is still ample information in the affidavits to support the second search of appellant’s

apartment and the search to obtain his DNA.56

       We therefore overrule appellant’s final point of error.

       Finding no reversible error, we affirm the trial court’s judgment and sentence.


Delivered: November 23, 2011
Do Not Publish




       56
          See United States v. Karo, 468 U.S. 705, 721 (1984) (search-warrant affidavit, after
striking of facts about illegal beeper monitoring inside a residence, contained sufficient untainted
information to establish probable cause for issuance of search warrant); United States v.
Restrepo, 966 F.2d 964, 970-71 (5th Cir. 1992) (in assessing whether search warrant contains
sufficient untainted information to establish probable cause, court should excise illegally
obtained information and then decide whether remaining information suffices); cf. Franks v.
Delaware, 438 U.S. 154, 155-56 (1978) (in deciding whether intentional misrepresentations in
warrant affidavit require suppression of evidence obtained as a result of search, courts must
excise the false information and decide if sufficient, untainted information exists to establish
probable cause in affidavit); Klingenstein v. State, 624 A.2d 532, 538 (Md. 1993) (the existence
of tainted information in search-warrant affidavit does not necessarily render warrant invalid;
remaining, untainted information should be examined to determine if it suffices to establish
probable cause).
