                                                                                                  ACCEPTED
                                                                                              05-14-00671-CR
                                                                                   FIFTH COURT OF APPEALS
                                                                                              DALLAS, TEXAS
                                                                                         9/15/2015 4:47:22 PM
                                                                                                   LISA MATZ
                                                                                                       CLERK




                                                                                                                      5th Court of Appeals
                                                                                                                       FILED: 09/15/2015
                                                                                                   Lisa Matz, Clerk
                                       The State requests oral argument only if Appellant argues

                         No. 05-14-00671-CR
                                                                     RECEIVED IN
                                                                5th COURT OF APPEALS
                                                                    DALLAS, TEXAS
                   IN THE COURT OF APPEALS
                                                                9/15/2015 4:47:22 PM
                FOR THE FIFTH DISTRICT OF TEXAS                       LISA MATZ
                           AT DALLAS                                    Clerk




                   WILLIAM GERARD PALMER,
                           APPELLANT

                                  V.

                      THE STATE OF TEXAS,
                             APPELLEE


  On appeal from Criminal District Court No. 4 of Dallas County, Texas
                       In Cause No. F12-00445


                             STATE’S BRIEF


                                          Counsel of Record:

Susan Hawk                                Christine Womble (SBT 24035991)
Criminal District Attorney                Assistant District Attorney
Dallas County, Texas                      Frank Crowley Courts Building
                                          133 N. Riverfront Boulevard, LB-19
                                          Dallas, Texas 75207-4399
                                          (214) 653-3625
                                          (214) 653-3643 fax
                                          CWomble@dallascounty.org

                    Attorneys for the State of Texas
                                               TABLE OF CONTENTS

Table of Contents .................................................................................................. ii-iii

Index of Authorities ............................................................................................ iv-vii

Statement of the Case ................................................................................................ 1

Statement of Facts ................................................................................................ 1-17

Summary of the Argument ................................................................................ 17-18

Argument ................................................................................................................. 18

State‘s Response to Issue Nos. One and Two ......................................................... 18

         THE TRIAL COURT PROPERLY EXCLUDED THE TESTIMONY OF DR.
         KRISTI COMPTON. ALTERNATIVELY, ANY ALLEGED ERROR IS
         HARMLESS.



State‘s Response to Issue No. Three........................................................................ 35

         APPELLANT  HAS FAILED TO PRESERVE ERROR FOR THIS COURT’S
         REVIEW. INANY EVENT, EVEN ASSUMING ERROR WAS PRESERVED,
         THE TRIAL COURT PROPERLY OVERRULED HIS REQUEST FOR AN
         INSTRUCTION REGARDING THE LESSER-INCLUDED OFFENSE OF
         MANSLAUGHTER.



State‘s Cross-Point ................................................................................................... 43


         THE JUDGMENT SHOULD BE MODIFIED OR REFORMED TO CORRECTLY
         REFLECT APPELLANT’S SENTENCE.




Prayer ....................................................................................................................... 45




                                                               ii
Certificate of Compliance ........................................................................................ 45


Certificate of Service ............................................................................................... 46




                                                           iii
                                            INDEX OF AUTHORITIES


Cases


Almanza v. State,
  686 S.W.2d 157 (Tex. Crim. App. 1985) ..................................................... 37, 38, 43

Arnold v. State,
  234 S.W.3d 664 (Tex. App.—Houston [14th Dist.] 2007, no pet.) ...................... 40

Bigley v. State,
  865 S.W.2d 26 (Tex. Crim. App. 1993) ................................................................... 44

Blanton v. State,
  No. 74,214, 2004 Tex. Crim. App. LEXIS 2210 (Tex. Crim. App. 2004) (not
  designated for publication) ......................................................................................... 39

Boles v. State,
  598 S.W.2d 274 (Tex. Crim. App. 1980) ................................................................. 38

Cardenas v. State,
  30 S.W.3d 384 (Tex. Crim. App. 2000) ................................................................... 39

Cavazos v. State,
  382 S.W.3d 377 (Tex. Crim. App. 2012) ............................................... 37, 40, 41, 43

Crane v. Kentucky,
  476 U.S. 683 (1986) .................................................................................................... 23

Erazo v. State,
  144 S.W.3d 487 (Tex. Crim. App. 2004) ................................................................. 24

Estrada v. State,
  334 S.W.3d 57 (Tex. App.—Dallas 2009, no pet.) ................................................. 44

Gallo v. State,
 239 S.W.3d 757 (Tex. Crim. App. 2007) ................................................................. 24




                                                             iv
Hernandez v. State,
 438 S.W.3d 876 (Tex. App.—Texarkana 2014, pet. ref‘d).................................... 23

Hutch v. State,
 922 S.W.2d 166 (Tex. Crim. App. 1996) ................................................................. 38

Jackson v. State,
  160 S.W.3d 568 (Tex. Crim. App. 2005) ........................................................... 25, 26

King v. State,
  953 S.W.2d 266 (Tex. Crim. App. 1997) ........................................................... 33, 35

Lizcano v. State,
  AP-75,879, 2010 Tex. Crim. App. Unpub. LEXIS 270 (Tex. Crim. App. May 5,
  2010) (not designated for publication)...................................................................... 26

Marshall v. State,
 No. 11-10-00057-CR, 2012 Tex. App. LEXIS 1083 (Tex. App.—Eastland Feb.
 9, 2012, no pet.) (not designated for publication) ................................................... 30

Mathis v. State,
 67 S.W.3d 918 (Tex. Crim. App. 2002) ................................................................... 39

Mays v. State,
 318 S.W.3d 368 (Tex. Crim. App. 2010) ................................................................. 25

Middleton v. State,
 125 S.W.3d 450 (Tex. Crim. App. 2003) ................................................................. 37

Montgomery v. State,
 810 S.W.2d 372 (Tex. Crim. App. 1990) (op. on reh‘g) .................................. 23, 24

Morales v. State,
 32 S.W.3d 862 (Tex. Crim. App. 2000) ................................................................... 33

Ngo v. State,
  175 S.W.3d 738 (Tex. Crim. App. 2005) ................................................................ 38

Penry v. State,
  903 S.W.2d 715 (Tex. Crim. App. 1995) ................................................................. 25


                                                       v
Rice v. State,
  333 S.W.3d 140 (Tex. Crim. App. 2011) ........................................................... 36, 37

Romero v. State,
  800 S.W.2d 539 (Tex. Crim. App. 1990) ................................................................. 23

Ruffin v. State,
  270 S.W.3d 586 (Tex. Crim. App. 2008) ........................................................... 25, 26

Teel v. State,
  No. 02-09-00150-CR, 2010 Tex. App. LEXIS 9391 (Tex. App.—Fort Worth,
  Nov. 24. 2010, pet. ref‘d) (not designated for publication).................................... 27

United States v. Cameron,
 907 F.2d 1051 (11th Cir. 1990) .................................................................................. 26

Vasquez v. State,
  919 S.W.2d 433 (Tex. Crim. App. 1996) ................................................................. 38

Ward v. State,
 AP-75,750, 2010 Tex. Crim. App. Unpub. LEXIS 94 (Tex. Crim. App. Feb. 10,
 2010) (not designated for publication)...................................................................... 32

Weatherred v. State,
 15 S.W.3d 540 (Tex. Crim. App. 2000) ................................................................... 33

Wiley v. State,
 No. 09-07-00436-CR, 2009 Tex. App. LEXIS 225 (Tex. App.—Beaumont Jan.
 14, 2009, pet. ref‘d) (not designated for publication) ............................................. 28

Wyatt v. State,
 23 S.W.3d 18 (Tex. Crim. App. 2000)...................................................................... 22

Yebra v. State,
  No. 08-12-00201-CR, 2014 Tex. App. LEXIS 10875 (Tex. App.—El Paso Sept.
  30, 2014, no pet.) (not designated for publication) ................................................. 30




                                                         vi
Statutes

Tex. Code Crim. Proc. Ann. art. 36.14 ....................................................................38

Tex. Code Crim. Proc. Ann. art. 36.19 ....................................................................37

Tex. Code Crim. Proc. Ann. art. 37.09 ............................................................. 36, 37

Tex. Code Crim. Proc. Ann. art. 38.36(a) ......................................................... 25, 31

Tex. Penal Code Ann. § 6.03 (a-b) .................................................................... 31-32

Tex. Penal Code Ann. § 6.03(c)...............................................................................40

Tex. Penal Code Ann. § 12.31(a)(2) ........................................................................44

Tex. Penal Code Ann. § 19.04(a).............................................................................40

Rules

Tex. R. App. P. 43.2(b) ............................................................................................44

Tex. R. App. P. 44.2(b) ..................................................................................... 33, 35

Tex. R. Evid. 401 .....................................................................................................23

Tex. R. Evid. 403 ........................................................................................ 24, 25, 31

Tex. R. Evid. 702 .............................................................................................. 24, 26




                                                          vii
TO THE HONORABLE COURT OF APPEALS:
      The State of Texas submits this brief in response to the brief of Appellant,

William Gerard Palmer.

                           STATEMENT OF THE CASE
      Appellant entered a plea of not guilty to the offense of capital murder.

(RR4:6). The jury found him guilty and the Court sentenced him to confinement

for life without the possibility of parole in the Texas Department of Criminal

Justice. (CR:500-04; RR8:155).

                             STATEMENT OF FACTS
      Appellant stabbed to death his wife, Donya, and his in-laws, Mary and

Raymond ―Ray‖ Davis.

                               The Palmer Family

      Appellant was married to Donya Palmer.          (RR4:64).   They had three

children: Brianna, Danielle, and Brett. (RR4:57-58).       Donya‘s father is Ray

Davis. (RR4:53-54; SX5). Mary Davis is her stepmother. (RR4:52-56). Kelley

Davis Dennehy is her half-sister. (RR4:52-56; SX5).

      Appellant and Donya‘s marriage was ―okay at first, but the last couple of

years it was a lot of arguing and they weren‘t really getting along.‖ (RR4:214).

They no longer showed affection toward each other.        (RR5:44-45).     Donya

suffered from Lupus, an autoimmune disease, which causes tremendous fatigue.

(RR4:214; RR5:41; RR6:15). Appellant did not like the fact that Donya stayed in


                                        1
bed and missed a lot of family gatherings and events.        (RR4:214; RR5:5).

Appellant would yell and cuss at Donya. (RR4:215). At times, he would ―raise his

voice, saying, Oh, you‘re so worthless. Get out of bed. You‘re being lazy.‖

(RR5:58).

      Donya was ―hooked on‖ an online social networking game, Mafia Wars.

(RR5:41).   She spent a great deal of time playing the game on her computer.

(RR5:22-23). ―She would stay up to like 3:00 or 4:00 in the morning playing

Mafia Wars, knowing she had to be up at 5:00 in the morning for work.‖

(RR6:15).

      A few weeks before the murders, Appellant told the children that Donya had

decided that they should ―go their separate ways[.]‖ (RR4:219). Appellant moved

out of the house and into a motel for a week. (RR4:219). He ―was very upset . . .

he was really heartbroken.‖ (RR4:220).      He wanted to reconcile with Donya.

(RR4:220-21).     Appellant continued to function normally. (RR4:221).        He

maintained his routine of going to church and to work. (RR4:221-22).   There was

no indication that Appellant was experiencing any mental issues. (RR4:223).

      At some point, Donya left and travelled to Arkansas to spend time with




                                        2
another man.1 (RR4:223, 228). She was gone for about a week. (RR4:223).

Danielle became angry with her mother. She testified:

      I was mad because my dad had told us, the kids, that my mom had left
      us and she was never coming back and that she took the dog and she
      maxed out the bank account and left him with no money for us to start
      over. He basically just made up a lot of lies to us and just basically
      told us that she was never coming back, that she left us for good.

(RR4:224).    Danielle refused Appellant‘s request that she text Donya that if

Appellant got remarried that the new woman would be her new mother.

(RR4:225-26). It was about this time that Appellant started saying ―that [Donya]

was surrounded by demons and that it was because she played Mafia Wars too

much.‖ (RR5:30).       Danielle testified that ―[Appellant] wanted us to get on his

side so we could stay with him [after the separation]. So, basically, he was saying

stuff so we would want to be with him and not her.‖ (RR5:30).

      Donya returned from Arkansas on Wednesday, January 25th. (RR4:63-64,

227). She planned to stay at the Davis house and wanted Danielle to pick up their

dog, Rebel.    (RR4:63-64,227).       Before going to pick up the dog, Danielle,

Brianna, Brett and Appellant went to church. (RR4:228). Appellant ―went to man

church, he was by himself.‖ (RR4:229). The kids attended services for teenagers.

(RR4:229). Afterward, Appellant said ―that God really spoke to him tonight and



1
  Donya told Danielle that she had gone to Arkansas to stay with her friend, Jacqueline.
(RR5:11-12). In fact, she had gone to see a man.


                                           3
told him what he needed to do.‖ (RR4:229). The family went home and then later

out to the Davis house to see Donya. (RR4:64, 69, 231; RR5:51).

      At the Davis house, Danielle spent some time with Donya. (RR4:232). She

apologized for sending Donya mean text messages. (RR4:232; RR5:12). She

learned that, contrary to what Appellant had told her, Donya had not maxed out

their bank account, leaving them without anything. (RR4:232). Donya told Brett

that she would ―do whatever it takes to make this work.‖ (RR5:53). Kelley

described the visit as follows:

      It was kind of awkward between the kids and Donya, just because I
      think - - their own confusion. They didn‘t understand what was going
      on. And Donya was just - - she was very quiet, very quiet. And he
      came over, when he got the dog in hopes, you know, that he wanted to
      make the marriage work. He came over and told everybody he loved
      them and hugged them before he left or whatnot. And he told Donya
      that he loved her and then she just looked at me and rolled her eyes.

(RR4:69-70).     Appellant and the kids stayed for about thirty minutes then left.

(RR4:71). When Appellant and the kids were getting ready to leave, Appellant

was upset and kept asking Mary whether she had talked to Donya and whether

Donya was done with their marriage. (RR4:233). Mary told him that she didn‘t

know. (RR4:233).

      Appellant was quiet on the drive home to Sachse. (RR4:234). He behaved

normally. (RR4:234-25; RR5:32, 53).




                                         4
                                  The Murders

      The next morning, back at the Davis house, Kelley got up at about 6 a.m.

(RR4:74).   She woke Donya to get ready for work. (RR4:74-75). Donya went

outside to her car, a Durango, to get her clothes. (RR4:75).         Kelley heard

screaming and walked into the living room to see what was going on. (RR4:75).

―[The screaming] was coming from the front of the house and as I was walking

into the living room, Donya came running through the front door with blood on her

and [Appellant] was chasing her with a knife.‖ (RR4:75). Appellant was dressed

in a black sweatshirt, jeans, black weightlifting gloves and a black toboggan.

(RR4:75, 101).   Donya was screaming for help.        (RR4:75).     Appellant was

stabbing her. (RR4:78).

      Kelley called out for her father. (RR4:76).    Ray tried to make his way to

Kelley, but Appellant began stabbing him. (RR4:76).          Ray fell to the floor,

asking Appellant why he was stabbing him. (RR4:76). Appellant responded, ―I‘m

sorry, I have to. Your‘re here.‖ (RR4:76). Kelley ran away, cutting her arm on

Appellant‘s knife as she fled.    (RR4:78, 80).     As Kelley ran upstairs to her

daughter, Mary was on her way downstairs. (RR4:76, 79). Kelley and Jaiden hid

in a closet. (RR4:77). She testified:

      I put me and my daughter in the closet and put her behind my dad‘s
      clothes. And I could hear a lot of thudding and banging. And I know
      where the closet is downstairs, below the closet from the front door is
      where the end of stairs end and I heard a very loud thud and I knew

                                        5
      that that was my stepmother, that he had gotten her. And he - - I
      heard him opening up the door, asking where we were. I remember
      hearing the bedroom door hitting the wall up against - - in the closet.
      The other side was where the door was.

      And I heard him running through the bathroom, opening up the
      shower curtain and looking into the other bedroom and stuff. And
      then I heard him come back down and he was like, Shit. Like, he
      couldn‘t find us. Then he went back downstairs. And after he went
      back downstairs, I carefully opened up the closet door and went and
      got my step mom‘s cell phone off of her dresser and went back in the
      closet and called 911.

(RR4:77). Kelley stayed on the phone with the 911 dispatcher until police arrived.

(RR4:85-86; SX13).

      Senior Corporal Alyssa Wadas was dispatched to ―a cutting call[.]‖

(RR4:21).   ―[T]hree people had been stabbed and . . . the caller was hiding in a

closet with a small child.‖ (RR4:21).       When Corporal Wadas and her partner,

Officer Brian Madalinski, arrived and pulled into the driveway, she observed two

vehicles parked outside the house. (RR4:22, 24). The driver‘s side door of one

of the vehicles, a red Durango, was open. (RR4:24-25). The officers approached

and entered the house. They found three dead bodies. (RR4:26). All three had

been stabbed. (RR4:26). The officers searched the house, but did not locate the

suspect. (RR4:31).

      Senior Corporal Lance Raymond found Kelley hiding upstairs with her

daughter, Jaiden. (RR4:32, 55, 113; SX79-80).      Kelley told the officers that ―her

brother-in-law had been at the house and he had stabbed his wife.‖ (RR4:36).

                                        6
Kelley described the knife, ―that it would look something like a filet knife out of a

kitchen.‖   (RR4:36).       Officer Raymond conveyed the information Kelley

provided to dispatch. (RR4:117).

      A short time later, Deployment Officer Ubaldo Lopez was assigned to

conduct surveillance on Appellant‘s home in Sachse. (RR4:140-41).            Officer

Lopez parked about a half a block away, got out and ―[got] eyes on the actual

physical address of it.‖ (RR4:147). As he walked back to his vehicle, he ―heard an

engine start and I saw that the lights came on, on the van that we were looking

for.‖ (RR4:147).     He followed the van to a nearby fast-food restaurant, Taco

Bueno. (RR4:147-48; SX83-84, 97-98).          When Appellant pulled into the drive-

through, Officer Lopez drove to the parking lot of the bank where the rest of his

team was planning Appellant‘s arrest. (RR4:151). He updated them regarding

Appellant‘s location.   (RR4:151).     Appellant was arrested as he left the drive-

through of the Taco Bueno. (RR4:151-52, 163).

      Officer Gilbert Padilla testified that there was nothing unusual about

Appellant‘s physical or mental affect when he arrested him at the Taco Bueno.

(RR4:174, 176).    Officer Padilla did, however, observe that Appellant had tape

around some of his fingers and that blood was coming out from under the tape.

(RR4:176-77).




                                          7
      At police headquarters, Officer Michael Gonzalez photographed Appellant

and collected his clothing. (RR4:191, 194, 199-201; SX207). Officer Gonzalez

testified that Appellant ―had a red substance on his right little finger. [He] thought

it was blood. [He] noticed blood on the fingernail of his left hand under by the

electrical tape.‖ (RR4:201-02; SX155-62). His injuries ―appeared pretty major . .

. like they were very painful;‖ Appellant started bleeding when he removed the

tape from his fingers. (RR4:202).

      Officer Gonzalez testified that he had no problem communicating with

Appellant. (RR4:205-06). He followed directions and appeared to understand

what the officer was talking about. (RR4:206). ―Everything seemed normal.‖

(RR4:206). Officer Gonzalez had no concern about Appellant‘s mental state.

(RR4:207).

      Detective Dan Town searched Appellant‘s van but did not locate the murder

weapon or any bloody clothing. (RR5:90; SX83-88). The interior of the van did

have a powder cleaner that appeared to have been freshly sprinkled inside.

(RR5:86).

      Lisa Routh, a registered nurse, evaluated Appellant when he was brought to

the Lew Sterrett Jail following his arrest. (RR5:175, 177, 183-85). At the time,

Appellant ―was just rocking back and forth. He was crying. He couldn‘t believe




                                          8
he had done it. He didn‘t know why he had done it.‖ (RR5:185). Appellant also

told Routh about the murders:

      He just talked to me about his father-in-law. He was upset because
      his father-in-law - - he didn‘t know why he had killed him. He said,
      he just got in his business - - he‘d got in their business and it was just
      - - I only knew - - at that point, I only knew it was his father-in-law
      that he had killed.

      I knew he had come in with - - they told me it was murder. And all he
      would talk about was his father-in-law and that he loved the man and
      he didn‘t know - -

(RR5:202).

      Routh did not observe Appellant to be under the influence of drugs or

alcohol. (RR5:188). He did not appear manic or paranoid. (RR5:192). Appellant

reported that he suffered from depression and attention deficit disorder.

(RR5:188).    He reported that the events of the day were repeating in his head.

(RR5:193-94). Routh believed that ―[l]ike the event, he couldn‘t get passed it. He

was reliving it.‖ (RR5:194). She did not believe he was psychotic. (RR5:194).

      Routh testified that her encounter with Appellant stood out in her mind:
      Like, the one, They were out to get me. He was rocking back and
      forth and he said - - he needed to know - - he had just left and he had
      went to the Taco Bueno to get him a breakfast burrito because he
      liked them and he knew it would be quite a while before he got
      another one and they just swarmed him.

(RR5:200-01). She said, ―The reason I remember [her encounter with Appellant]

was because it was so bazaar [sic]. Most people don‘t rock back and forth crying

and then talk about eating a burrito.‖ (RR5:207).

                                          9
       Dr. Joni McClain testified that Mary Davis‘ cause of death was ―[m]ultiple

sharp force injury.‖ (RR5:158). Dr. Jill Urban testified that Ray Davis‘ ―died as a

result of multiple, sharp force injuries.‖ (RR5:162, 164-71; SX178-84, 187-200).

       Ron Krugjohann, a neighbor, testified that he was awake early in the

morning on the day of the murders. (RR4:132). At about 5:30 a.m., Krugjohann

looked outside his front window and noticed that ―[a]cross the street directly in

front of [his] house was a van that [he] did not recognize.‖ (RR4:134, 136; SX83-

84). The van was gone by 6:30 a.m. (RR4:136).

                                     Appellant’s Case

       Brianna testified that during the week before the murders, when Donya had

left, Appellant had trouble sleeping. (RR6:23-25). ―He would stay up all hours of

the night.‖ (RR6:24).          Brianna ―could just tell he hadn‘t been [sleeping].‖

(RR6:25).

       When the family went to church2, Brianna went with Appellant while

Danielle and Brett attended teen services. (RR6:30).          During the service, Brianna

and Appellant went to the altar to be prayed for; congregants placed their hands on

them and prayed in tongues over them. (RR6:28-30). Brianna testified about

Appellant‘s attitude after church:


2
  At one point, Brianna testified that this occurred on the Wednesday night immediately
preceding the Thursday morning murders. Later, she testified that this occurred on the Sunday
before the murders. (RR6:33).


                                             10
        He was excited. You know, he was telling all of our family that we
        went to church and that everything is going to be okay and that God‘s
        going to work all this - - it‘s all going to work out.

(RR6:31).

        After church on January 25th, Brianna went to a friend‘s house, returning

home between midnight and 12:30 a.m. (RR6:42-43).             Brianna ―went in my

dad‘s room and we talked for a little bit and watched some TV and then I passed

out.‖    (RR6:43).    While they watched television, Appellant dozed. (RR6:43).

Brianna woke up at 4 a.m. to use the bathroom and Appellant was not in bed.

(RR6:45). She assumed he was downstairs eating. (RR6:45). The next thing she

remembered was Appellant turning on the light and telling Brianna to wake up and

get Brett ready for school. (RR6:45).         He asked her to take Brett to school.

(RR6:45). When Brianna asked Appellant why he couldn‘t take Brett to school, he

told her that he had an emergency at work, then ran and got into the shower.

(RR6:45).     At some point, Brianna heard Appellant scream that he cut himself.

(RR6:45).     He came out of the bathroom with a towel around his hand; he was

bleeding heavily. (RR6:46). He treated his cut with hydrogen peroxide, wrapped

tape around it and left for work. (RR6:46).

        Dr. Antoinette McGarrahan, a psychologist specializing in forensic

psychology and neuropsychology, performed a neuropsychological evaluation of

Appellant. (RR6:105, 109).      Dr. McGarrahan determined that Appellant was of



                                         11
average intellectual ability. (RR6:115). Although he had no learning disabilities,

he does experience ―problems in the area of planning, organization, problem

solving, [and] coping.‖ (RR6:116). Appellant has low self-esteem and ―sees his

life as so negative and sees himself as so severely impaired that it raised a ‗cry for

help‘ response.‖     (RR6:117-18).       He has ―significant difficulties‖ in his

relationships with others. (RR6:118).     He becomes panicked or fearful if he feels

that he is going to be abandoned or rejected by people with whom he has

significant relationships. (RR6:119). Dr. McGarrahan also reported that Appellant

―has a long history of impulsivity . . . [He] is somebody who for many, many,

years, most of his life, has acted without thinking, without thinking about the

consequences and without being able to plan and prepare very well.‖ (RR6:118).

Dr. McGarrahan conceded that while Appellant may have experienced some

impairments, he was able to own and operate a business. (RR6:132).

      Appellant has a history of major depressive disorder and attention deficit

hyperactivity disorder. (RR6:119-20). He has a generalized anxiety disorder.

(RR6:120).    He also exhibits ―some borderline and dependent personality traits

and those have caused him significant difficulties in his life.‖ (RR6:120).       An

MRI of his brain showed that Appellant ―had chronic microvascular ischemic

changes[,]‖ meaning that he had problems with the arteries supplying oxygen to his




                                         12
brain. (RR6:125). Microvascular changes are ―fairly common[ly]‖ seen in MRIs

of 50-year-old men. (RR6:148).

      Dr. Jonathan Lipman, a neuropharmacologist, testified regarding the

medications Appellant was taking at the time he committed the instant murders:

Lexapro (an antidepressant); Adderral (an amphetamine) and Lamictal (an

anticonvulsant also used to treat bipolar disorder). (RR6:153, 182-83). Lamictal

was first prescribed for Appellant on January 4, a few weeks before the murders.

(RR6:185).      It was discontinued on January 19th because Appellant ―was

presenting with [an] itch[,]‖ a potentially life-threatening condition associated with

anticonvulsant drugs. (RR6:186). That same day, Appellant‘s dosage of Lexapro

was increased. (RR6:186).        On the 23rd, Appellant was prescribed Trileptal,

another anticonvulsant. (RR6:188-90).

                              State’s Case-in-Rebuttal

      Dr. Mitchell Dunn, a psychiatrist, testified that he interviewed Appellant on

February 22, 2014.     (RR8:17, 23).       Dr. Dunn testified that Appellant‘s 30

milligram dose of Lexapro, while it was high, was ―not an irrational dose.‖

(RR8:28-29).      Appellant‘s 60 milligram dose of Adderral is not uncommon.

(RR8:29). The Lamictal and Trileptal were both prescribed at starting dosages,

lower than what would be considered therapeutic. (RR8:29). Dr. Dunn testified

that he ―didn‘t see any evidence that the medications were having an adverse effect



                                         13
on [Appellant]‖ at the time of the instant offense. (RR8:44-45).      The following

exchange took place:

      [Prosecutor]: And, again, on what do you base that opinion?

      [Dr. Dunn]: Looking at what we know about his behavior and his
      statements before, during and after. An adverse medication effect
      doesn‘t just pop up and then go away. It‘s usually manifested by
      some type of physical problem, not simply by a psychosis or bazaar
      [sic], delusional belief. That simply is not something that‘s usually
      seen in psychiatry.

      We have information regarding the texts that he was sending in the
      hours just prior to this offense and we also have information regarding
      what he was saying and what his behavior was like. His texts were
      very consistent with the texts that he had been sending to Donya - - I
      just seen [sic] the ones that she received - - were very consistent in
      terms of coherence, logic, normal requests, nothing that seemed to be
      disorganized.

      If somebody is having to text, you know, that‘s - - I mean, we all
      fumble when we‘re texting, but I didn‘t even see mistakes in the
      texting. So, that shows some degree of his capacity, not just for his
      cognitive ability, but also for his physical abilities just prior to that
      time.

      Also we know from the records, from testimony, from interviews, that
      his behavior before the offense and just after the offense appeared to
      be, you know, well organized, structured and designed to try anything
      to create a situation in which it appeared as if he might not have been
      involved in the offense. That type of organized behavior, you know,
      the evidence that he was trying to make other people, like family
      members, believe that he had been there the whole time or that he had
      hurt himself in some other way, is not evidence of anybody that‘s had
      a significant problem in terms of their medication. It appears to be
      somebody who was thinking clearly and while maybe trying to avoid
      criminal prosecution, certainly not having problems in terms of their
      cognitive abilities or behavioral issues.



                                         14
(RR8:46-48).

      Dr. Dunn agreed with Dr. McGarrahan‘s assessment that Appellant suffers

from depression and attention deficit disorder. (RR8:37-38). Although he agreed

that Appellant suffers from anxiety, he did not agree that Appellant suffered from

generalized anxiety.   (RR8:38).    Dr. Dunn also agreed that Appellant has a

dependent personality. (RR8:38).     With regard to the claim that Appellant was

psychotic at the time he committed the instant offense, Dr. Dunn testified that he

―[had] no evidence that Mr. Palmer was in a psychotic state at the time of the

offense.‖ (RR8:48).    As to the claim that Appellant went to the Davis house and

committed the instant offense as part of an effort to rid Donya of demons, the

following exchange took place:

      [Prosecutor]: And with respect to him - - well, let me move on. Let
      me ask you, there‘s been a lot of talk in this trial about demons: Did
      he report - - in your interview, did Mr. Palmer report any
      hallucinations or delusions, anything like that?

      [Dr. Dunn]: I guess, it depends on how you understand this talk about
      demons.

      [Prosecutor]: From your perspective and part of your assessment, can
      you explain to that, how that would factor in here, this talk of
      demons?

      [Dr. Dunn]: Certainly. Mr. Palmer told me that he had discussed
      this possibility that Donya might have been afflicted by demons in
      some way and that‘s why she perhaps wanted to get the divorce, that
      she had been playing this Mafia Wars game and that he had heard that
      perhaps this could be some type of entry of portal to sin or portal to
      her soul and had discussed this with the daughter of the church [sic]

                                       15
they went to the Wednesday before this event occurred and that she
said, Yes, that‘s certainly a possibility. And so this was a belief that
was endorsed by the pastor‘s daughter and he felt, you know that he
could kind of accept that that was a possibility.

When Dr. Lipman testified about the psychosis, he talked about this
belief in demons. It sounds from, at least from Mr. Palmer‘s
description, this was something that the Pentecostal church kind of
endorsed. If somebody was doing something wrong, that maybe they
were afflicted by demons in some way and you could pray them out.
In fact, he said that the minister‘s daughter said, You just need to pray
really, really, hard for her.

A delusional belief is a false, fixed, belief. It‘s something that you
believe that simply isn‘t true. Psychosis - - so there‘s no psychotic
illness in which somebody - - massive people believe something that‘s
not true. So, in this kind of situation, if indeed the church did believe
that you did something wrong that that meant that you were afflicted
by demons, I wouldn‘t consider that psychosis, but rather a kind of
more extreme religious belief.

I think we‘ve all - - you know, even if we don‘t belong to a
Pentecostal religion, we have seen perhaps on TV, ministers who will
decree this kind of thing, that if you - - if there‘s somebody who has
done something bad or you‘ve done something bad, that‘s the demon
that‘s within you. That doesn‘t mean that there‘s 3 million people
watching this church broadcast that believe - - that are all psychotic at
the same time, it‘s just some kind of a more extreme religious belief.

      ...

[Prosecutor]: Okay. And with respect to his assertions about, I went
there to address the demons, in your assessment were there things
factually about this case and from the evidence that are contrary, they
don‘t square with his assertion to us?

[Dr. Dunn]: Yes.

[Prosecutor]: What are those, sir?



                                     16
      [Dr. Dunn]: Well, if he had gone on Wednesday and had determined
      from speaking to the pastor‘s daughter that there were these demons
      that were in Donya in some way - - he saw her that night. I mean, if
      there was something he wanted to do to get rid of the demons, that
      would have been the first time that he could have done so, but he was
      with family, there were children there, there were other witnesses. He
      was entirely normal in that interaction from what was described. I
      would think that if he had the psychotic belief from that Wednesday
      afternoon on, then Wednesday night, the first time he saw her, might
      have been his first opportunity to act.

      The other thing was that he never, at any time, suggested in the
      interaction with the church that his in-laws were also some how [sic]
      afflicted by these demons nor did they indicate to him that he had to
      kill the demons. He told me that they simply said that he had to pray
      for her and try to find out the demons‘ name and if they found out
      their names, then perhaps he could pray and get them out of her more
      rapidly. The idea that he would have to kill them and then have to kill
      his in-laws because they got in the way somehow and then would
      have to go looking for a witness who wasn‘t afflicted in any way,
      shape or form by these demons, is not consistent with psychosis,
      rather with something entirely different.

(RR8:51-54).

      Dr. Dunn testified that he received the records prepared by Nurse Routh

when Appellant was initially brought to jail.     (RR8:45).     Appellant‘s blood

pressure was ―somewhat elevated.‖ (RR8:45). Other than that, Appellant‘s vital

signs were normal. (RR8:46).


                         SUMMARY OF THE ARGUMENT

      Issue Nos. One and Two: The trial court properly excluded the testimony of

Dr. Kristi Compton. Dr. Compton did not have an opinion to offer regarding


                                        17
Appellant‘s intent as it pertains to the capital murder of Mary and Ray Davis.

Even assuming Dr. Compton had an opinion to offer, the probative value of the

proffered evidence was substantially outweighed by the danger of unfair prejudice,

confusion of the issues, misleading the jury, or by considerations of undue delay,

or needless presentation of cumulative evidence. Alternatively, any alleged error is

harmless.

      Issue No. Three: Appellant failed to preserve for this Court‘s review his

claim that he was entitled to an instruction in the charge regarding the lesser-

included offense of manslaughter. In any event, while manslaughter is a lesser-

included offense of capital murder, there is no evidence in the record that would

have permitted the jury to reach a rational conclusion that if guilty, Appellant was

guilty only of recklessly causing Mary‘s and Ray‘s death.


      State’s Cross-Point:    The judgment in this case should be modified or

reformed. The judgment reflects that Appellant was sentenced to life in prison. In

fact, Appellant was sentenced to life in prison without the possibility of parole.


                                     ARGUMENT
STATE’S RESPONSE TO ISSUE NOS. ONE AND TWO: THE TRIAL COURT PROPERLY
EXCLUDED THE TESTIMONY OF DR. KRISTI COMPTON.     ALTERNATIVELY, ANY
ALLEGED ERROR IS HARMLESS.

      Appellant contends that the trial court erred in excluding the testimony of

Dr. Kristi Compton regarding his diminished capacity to form the requisite intent


                                          18
to commit the offense of capital murder. Appellant contends that he was deprived

of relevant evidence and that he was deprived of a viable defensive theory.

Appellant‘s contentions lack merit and should be overruled.

                                  Pertinent Facts

      During a sub rosa hearing in the guilt/innocence phase of trial, Appellant

proffered the testimony of clinical and forensic psychologist Dr. Kristi Compton

regarding Appellant‘s sanity and his capacity to form the requisite intent to commit

capital murder at the time he committed the instant offense. (RR5:258-59). Dr.

Compton conducted four diagnostic interviews with Appellant and administered

various psychological tests. (RR5:260).

      Dr. Compton testified that she could not render an opinion regarding

Appellant‘s sanity. (RR5:261-63). The following exchange took place:

      [Defense Counsel]: Okay. And with respect to insanity, are you able
      to give an opinion as to whether or not you believe him to be insane?

      [Dr. Compton]: I cannot.

      [Defense Counsel]: Why is that?

      [Dr. Compton]: I was lacking information. There was information
      that‘s lacking from the time period of about 9:00 p.m. on that
      Wednesday until 6:00 a.m. in the morning that does not allow me to
      form a full opinion on whether he was insane at the time of the
      offense.

(RR5:261). She ―[had] very limited information about what his mental state was

during that time period.‖ (RR5:262). Dr. Compton was then asked for her opinion

                                          19
regarding Appellant‘s state of mind at the time he committed the instant offense.

The following exchange took place:

      [Defense Counsel]: And lastly, based upon all of your interviews,
      your testing, your documents that you have reviewed, have you
      formed an opinion as to his state of mind at the time of the
      commission of the offenses to form the requisite mental intent?

      [Dr. Compton]: I have formed an opinion - - a probability of his
      mental state at the time of the offense. Whether it‘s a requisite intent,
      that one, there is both factors for that he could not and factors that he
      could. So it kind of goes both ways.

      [Defense Counsel]: Okay. Do you believe that he had a diminished
      capacity based upon his - - how he presented?

      [Dr. Compton]: Yes. Based upon the information that I have
      available to me, I believe he was in a diminished mental state at the
      time of the killing.

      [Defense Counsel]: And may well not have been able to form the
      requisite intent - -

      [Dr. Compton]: He may not - -

      [Defense Counsel]: - - you just can‘t say that for sure?

      [Dr. Compton]: Pardon me?

      [Defense Counsel]: You just can‘t say that for sure?

      [Dr. Compton]: I cannot, no.

(RR5:261-62). Ultimately, Dr. Compton testified that she could not say for sure

whether Appellant did or did not have the requisite intent to commit capital

murder. (RR5:261-62).



                                         20
      Dr. Compton testified that Appellant gave her ―his version of [his] mental

state.‖ (RR5:265). She testified that there were ―some factors that corroborate it

and some factors that do not.‖ (RR5:265).        Appellant told Dr. Compton the

following:

      Specifically, he told me that he had gone to church. He began to
      believe that there was demonic oppression and this was the cause of
      his wife leaving him and being with the family. And as the days went
      on, he began talking to family and talking to the church members and
      he came to believe that this was a demonic or spiritual oppression and
      he had to rid his wife of the demonic forces.

             ...

      He did not tell me [that he went to the Davis house to rid his wife of
      demonic forces] specifically. That was his explanation for what
      occurred. He told me that he woke up about 3:00, 4:00 in the
      morning, was at a well lit Laundromat and he went to the Davis‘
      house, stayed in his van and was praying and calling out the names of
      the demons. Purportedly, the church had told him he had to call out
      the names of the demons to get them to go away. And that is his last
      recollection.

(RR5:267).

      The prosecutor asked Dr. Compton for her understanding of the legal

definition of intent. (RR5:268). Dr. Compton described intent as when ―you have

the mental capacity and the cognitive capacity to form the intent to commit

whatever act you‘re going to commit, that there‘s nothing impairing your ability to

do so.‖ (RR5:268).




                                        21
      Dr. Compton testified that there was a ―probability‖ that Appellant went to

the Davis house in an effort to rid Donya of demonic possession. (RR5:268).

When asked specifically whether Appellant intended to kill, Dr. Compton testified

that she did not know. (RR5:269). She could testify to factors that would indicate

that he was in a diminished mental state, but she could not ethically express an

opinion as to whether Appellant intended to kill the complainants. (RR5:269).

      The Court ruled that Dr. Compton‘s testimony would not help the jury.

(RR5:271). The trial court stated that her testimony ―would probably confuse [the

jury] more than anything and muddy up things because she doesn‘t have - - she

didn‘t say he‘s insane, she didn‘t say he has diminished capacity[.]‖ (RR5:271).

      Later, during a hearing on Appellant‘s bill of review, Dr. Compton testified

that she was prepared to testify regarding the probability that Appellant lacked the

requisite mental capacity to commit capital murder. (RR6:5). She identified the

various factors that she used to form her opinion. (RR6:6-9).           Dr. Compton

testified that ―[t]hose are the things that caused me to pause. There is a likelihood

or probability that he was in a diminished mental state.‖ (RR6:9-10).

                                Standard of Review

      The trial court‘s decision to allow a witness to testify as an expert will not be

disturbed on appeal absent a clear abuse of discretion.       See Wyatt v. State, 23

S.W.3d 18, 27 (Tex. Crim. App. 2000). ―An abuse of discretion is shown only



                                          22
when the trial court's ruling lies outside the ‗zone of reasonable disagreement.‘‖

Hernandez v. State, 438 S.W.3d 876, 878 (Tex. App.—Texarkana 2014, pet. ref‘d)

(quoting Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (op.

on reh‘g)).   If the trial judge‘s decision is correct on any theory of law applicable

to the case, it will be sustained. See Romero v. State, 800 S.W.2d 539, 543 (Tex.

Crim. App. 1990).

                                  Applicable Law

                             Right to Present a Defense

       The Sixth and Fourteenth Amendments to the United States Constitution

guarantee a defendant a meaningful opportunity to present a complete defense.

Crane v. Kentucky, 476 U.S. 683, 690 (1986). Even so, trial courts possess wide

latitude to exclude evidence, which is only marginally relevant or poses an undue

risk of confusion of the issues. See id. at 689-90.



                           Rule 401: Relevant Evidence

       Relevant evidence is defined as ―evidence having any tendency to make the

existence of any fact that is of consequence to the determination of the action more

probable or less probable than it would be without the evidence.‖ Tex. R. Evid.

401.




                                          23
                         Rule 403: Probative v. Prejudicial

      Rule 403 provides that relevant evidence may be excluded if:

      ―its probative value is substantially outweighed by the danger of
      unfair prejudice, confusion of the issues, or misleading the jury, or by
      considerations of undue delay, or needless presentation of cumulative
      evidence.

Tex. R. Evid. 403.    When making a determination under Rule 403, an appellate

court considers the following factors: (1) the probative value of the evidence; (2)

the potential to impress the jury in some irrational, yet indelible way; (3) the time

needed to develop the evidence; and (4) the proponent‘s need for the evidence.

Erazo v. State, 144 S.W.3d 487, 489 (Tex. Crim. App. 2004) (citing Montgomery,

810 S.W.2d at 389-390).

                            Rule 702: Expert Testimony

      Rule 702 of the Texas Rules of Evidence provides that a witness qualified as

an expert may testify in the form of an opinion or otherwise if her ―scientific,

technical, or other specialized knowledge will assist the trier of fact to understand

the evidence or to determine a fact in issue.‖ Tex. R. Evid. 702. The proponent of

scientific evidence must show, by clear and convincing proof, that the evidence is

sufficiently relevant and reliable to assist the jury in accurately understanding other

evidence or in determining a fact in issue.‖ Gallo v. State, 239 S.W.3d 757, 765

(Tex. Crim. App. 2007).




                                          24
                                  Article 38.36(a)

      Article 38.36(a) of the Texas Code of Criminal Procedure provides as

follows:

      In all prosecutions for murder, the state or the defendant shall be
      permitted to offer testimony as to all relevant facts and circumstances
      surrounding the killing and the previous relationship existing
      between the accused and the deceased, together with all relevant facts
      and circumstances going to show the condition of the mind of the
      accused at the time of the offense.

Tex. Code Crim. Proc. Ann. art. 38.36(a).       Evidence admissible under article

38.36(a) may be excluded under Rule 403 if the probative value of the evidence is

substantially outweighed by the danger of unfair prejudice, confusion of the issues,

or misleading the jury, or by considerations of undue delay, or needless

presentation of cumulative evidence. See Tex. R. Evid. 403.

                               Diminished Capacity

      The Texas legislature has not enacted any affirmative defenses, other than

insanity, based on mental disease, defect, or abnormality. Ruffin v. State, 270

S.W.3d 586, 593 (Tex. Crim. App. 2008). Thus, they do not exist in Texas. Id.

      A defendant may, however, introduce evidence of his diminished capacity

(mental illness less than insanity) if it negates his culpable mental state. See Mays

v. State, 318 S.W.3d 368, 380-81 (Tex. Crim. App. 2010); Jackson v. State, 160

S.W.3d 568, 573-74 (Tex. Crim. App. 2005); see also Penry v. State, 903 S.W.2d

715, 768 (Tex. Crim. App. 1995) (Maloney, J., concurring) (distinguishing

                                         25
diminished capacity as an affirmative defense from evidence of diminished

capacity, which negates mental state). Generalized evidence of the defendant‘s

mental health history, which is not related to the culpable mental state, is

inadmissible.   See Ruffin, 270 S.W.3d at 596 fn. 32 (citing United States v.

Cameron, 907 F.2d 1051, 1067-68 (11th Cir. 1990)); see also Lizcano v. State, AP-

75,879, 2010 Tex. Crim. App. Unpub. LEXIS 270, at *64-65 (Tex. Crim. App.

May 5, 2010) (not designated for publication) (finding proffered evidence did not

negate Lizcano‘s mens rea; it merely suggested general limitations in cognitive

ability, intoxication at the time of the offense, and general deficits in adaptive

functioning). Evidence that does negate the culpable mental state may still be

excluded under Rule 403. See Jackson, 160 S.W.3d at 574.

                           Application of Law to Facts

      The trial court properly excluded Dr. Compton‘s testimony regarding

Appellant‘s ability to form the requisite intent to commit capital murder.    As a

preliminary matter, Dr. Compton was unable to render an expert opinion on the

very issue for which her testimony was proffered: whether, at the time of the

offense, Appellant had the requisite intent to commit capital murder.     As such,

she would not be able to ―assist the trier of fact to understand the evidence or to

determine a fact in issue[.]‖ Tex. R. Evid. 702. When asked whether she formed




                                        26
an opinion as to Appellant‘s ―state of mind at the time of the commission of the

offenses to form the requisite mental intent[,]‖ Dr. Compton testified as follows:

      I have formed an opinion - - a probability of his mental state at the
      time of the offense. Whether it‘s a requisite intent, that one, there is
      both factors for that he could not and factors that he could. So it kind
      of goes both ways on that.

(RR5:261). While she believed that Appellant was in a ―diminished mental state,‖

she was apparently conflicted as to whether that diminished mental state affected

his ability to form the intent to commit capital murder. (RR5:261-62).    On cross-

examination, the prosecutor asked Dr. Compton very specifically whether she was

going to express an opinion to the jury ―as to whether or not [Appellant] intended

to kill these people?‖      (RR5:269).     Dr. Compton responded, ―I cannot.‖

(RR5:269). She summarized her anticipated testimony as follows:

      I think what I‘ve been asked to provide is, does he have a mental
      disease or defect? Yeah. What were factors leading up to the
      offense? What were some of the factors that would indicate he was in
      a diminished mental state? And there are also factors that would
      indicate that he was not, specifically, in a diminished mental state.

      Ethically, I cannot say one way or the other if he formed the intent to
      kill Mr. and Mrs. Davis and his wife.

(RR5:269). Given this testimony, the trial court properly excluded Dr. Compton‘s

testimony. See Teel v. State, No. 02-09-00150-CR, 2010 Tex. App. LEXIS 9391,

at *5-6 (Tex. App.—Fort Worth, Nov. 24. 2010, pet. ref‘d) (not designated for

publication) (finding no abuse of discretion in excluding expert testimony where



                                         27
the expert stated that he had no opinion regarding Teel‘s sanity or mens rea at the

time of the offense); Wiley v. State, No. 09-07-00436-CR, 2009 Tex. App. LEXIS

225, at *6-7 (Tex. App.—Beaumont Jan. 14, 2009, pet. ref‘d) (not designated for

publication) (finding no abuse of discretion in excluding psychiatrist‘s testimony

where witness could not offer an opinion as to Wiley‘s sanity at the time of the

offense).

      Even assuming, arguendo, that Dr. Compton had an expert opinion to offer

regarding Appellant‘s diminished capacity to form the requisite intent, her

testimony was nevertheless irrelevant as it failed to negate Appellant‘s intent as to

the murder of the named complainants, Mary and Ray Davis.          The indictment in

this case provides that on or about January 26, 2012, Appellant:

      Did unlawfully then and there intentionally and knowingly cause the
      death of an individual, to-wit: RAYMOND DAVIS, by STABBING
      AND BY CUTTING DECEASED WITH A KINFE, A DEADLY
      WEAPON, AND A BOX CUTTER, A DEADLY WEAPON, AND A
      BLADED OBJECT, A DEADLY WEAPON, and during the same
      criminal transaction said defendant did then and there intentionally
      and knowingly cause the death of another individual, to-wit: MARY
      DAVIS, by STABBING AND BY CUTTING DECEASED WITH A
      KNIFE, A DEADLY WEAPON, AND A BOX CUTTER, A
      DEADLY WEAPON, AND A BLADED OBJECT, A DEADLY
      WEAPON.




                                         28
(CR:17).     Dr. Compton gave no testimony regarding Appellant‘s ability to form

the requisite intent to intentionally or knowingly cause the death of Mary Davis.3

Dr. Compton gave no testimony regarding Appellant‘s ability to form the requisite

intent to intentionally or knowingly cause the death of Ray Davis. Dr. Compton‘s

testimony addressed Appellant‘s state of mind4 as it related to the murder of his

wife Donya.        While it is true that, at trial, evidence of Donya‘s murder was

offered to provide context regarding the instant capital murder – Donya was the

reason Appellant went to the Davis house that morning – Appellant was not on

trial for her murder. He was on trial for the capital murder of Mary and Ray Davis.

(CR:17). Dr. Compton gave no testimony as to Appellant‘s intent or state of mind

as it related to the capital murder of Mary and Ray Davis.

       Even as it pertains to Donya‘s murder, however, Dr. Compton‘s testimony

still does not negate the requisite intent for capital murder. Dr. Compton did not

testify that due to his mental illness or defects that it was not Appellant‘s conscious

objective or desire to stab Donya or cause her death. She did not testify that


3
  Indeed, Mary and Ray Davis were only mentioned twice during all of Dr. Compton‘s
testimony. During the initial sub rosa hearing, Dr. Compton stated that ―[e]thically [she] cannot
say one way or the other if [Appellant] formed the intent to kill Mr. and Mrs. Davis and his
wife.‖ (RR5:269). Then, during the hearing in connection with Appellant‘s bill of review, she
testified that ―[t]here were no indications, when [she] talked to anyone, that [Appellant] had a
negative relationship with the Davises. To kill them as well did not seem completely rational to
[her].‖ (RR6:9).
4
  As will be described in further detail below, Dr. Compton‘s testimony is better described as
evidence of Appellant‘s state of mind as opposed to evidence of his diminished capacity to form
the intent to commit capital murder.


                                               29
Appellant believed he was stabbing someone other than Donya.             She did not

testify that due to his mental illness or defects that Appellant was not aware that his

conduct was reasonably certain to cause Donya‘s death.           Instead, she merely

testified to Appellant‘s mental and emotional state in the time before and after the

offense.   (RR5:264-271).     See Yebra v. State, No. 08-12-00201-CR, 2014 Tex.

App. LEXIS 10875, at *10 (Tex. App.—El Paso Sept. 30, 2014, no pet.) (not

designated for publication) (finding no abuse of discretion in excluding expert

where the proffered testimony did not suggest that Yebra did not intend to injure

his wife when he stabbed her repeatedly); Marshall v. State, No. 11-10-00057-CR,

2012 Tex. App. LEXIS 1083, at *21-22 (Tex. App.—Eastland Feb. 9, 2012, no

pet.) (not designated for publication) (finding no abuse of discretion in excluding

expert where the proffered testimony would not negate the required mens rea for

the offense).

      Taken as a whole, it is clear that Dr. Compton‘s testimony would have been

simply an attempt to explain and excuse Appellant‘s actions.              During her

testimony on Appellant‘s bill of review, she gave a laundry list of reasons why

Appellant‘s mental state was ―probably‖ diminished, including, his prior mental

health history; his extreme pathological separation anxiety; the fact that he was

easily stressed; the lack of history of domestic violence; his return to the church;

and, marital stress. (RR6:6-9). She still failed to explain, however, how or why



                                          30
these factors affected Appellant‘s ability to form intent. Because Dr. Compton‘s

testimony did not negate the requisite mens rea for capital murder it was irrelevant

and inadmissible.

      Even if this Court finds Dr. Compton‘s testimony relevant pursuant to article

38.36(a) as evidence of ―the condition of [Appellant‘s] mind . . . at the time of the

offense[,]‖ it was nevertheless inadmissible under Rule 403 as any probative value

was substantially outweighed by the danger of unfair prejudice, confusion of the

issues, and misleading the jury. See Tex. R. Evid. 403.      The probative value of

Dr. Compton‘s testimony was low because, as stated above, she did not even have

an expert opinion to offer regarding Appellant‘s intent.    Further, Dr. Compton‘s

testimony had the potential to impact the jury in an irrational and indelible way.

To begin with, her definition of intent did not track the statutory definition.

(RR5:268).    Section 6.03 of the Texas Penal Code defines ―intentionally‖ and

―knowingly‖ as follows:

   (a) A person acts intentionally, or with intent, with respect to the nature of his
       conduct or to a result of his conduct when it is his conscious objective or
       desire to engage in the conduct or cause the result.

   (b) A person acts knowingly, or with knowledge, with respect to the nature of
       his conduct or to circumstances surrounding his conduct when he is aware of
       the nature of this conduct or that the circumstances exist. A person acts
       knowingly, or with knowledge, with respect to the result of his conduct
       when he is aware that his conduct is reasonably certain to cause the result.




                                         31
Tex. Penal Code Ann. § 6.03 (a-b).     Dr. Compton defined intent as when a person

―[has] the mental capacity and the cognitive capacity to form the intent to commit

whatever act you‘re going to commit, that there‘s nothing impairing your ability to

do so.‖ Appellant‘s intent to commit capital murder was very clearly the central

issue to be decided during the guilt/innocence phase of trial. Given Dr. Compton‘s

testimony, it is not clear that she knew or understood the legal definition of intent.

See Ward v. State, AP-75,750, 2010 Tex. Crim. App. Unpub. LEXIS 94, at *12-13

(Tex. Crim. App. Feb. 10, 2010) (not designated for publication) (noting that the

jury may be overly confused or misled where the expert‘s definition of ―intent‖

was different than the statutory definition).   Next, testimony that Appellant may

have believed that Donya was suffering from demonic oppression would confuse

the issues for the jury as they were charged with determining whether Appellant

possessed the requisite intent to murder Mary and Ray Davis – not whether he

possessed the requisite intent to murder Donya Palmer.       Finally, the State notes

that Appellant presented much of the proffered evidence through other witnesses.

Dr. McGarrahan testified regarding his history of mental illness. Dr. Lipman

testified regarding his medications and the fact that they had been recently

changed. His daughter and two of his siblings testified to his stress, fatigue, and

depression.    Given the foregoing, the trial court did not abuse its discretion in

excluding Dr. Compton‘s testimony. At a minimum, the decision falls within the



                                         32
zone of reasonable disagreement.     See Weatherred v. State, 15 S.W.3d 540, 542

(Tex. Crim. App. 2000).

      Even if this Court finds that the trial court erred in excluding Dr. Compton‘s

testimony, which the State does not concede, any alleged error was harmless. See

Tex. R. App. P. 44.2(b); Morales v. State, 32 S.W.3d 862, 867 (Tex. Crim. App.

2000) (remanding for a harm analysis under Rule 44.2(b) regarding Morales‘ claim

that expert testimony was improperly excluded).        Non-constitutional error that

does not affect the substantial rights of the defendant is disregarded by the

appellate court. See Tex. R. App. P. 44.2(b). A substantial right is affected when

the error has a ―substantial and injurious effect or influence in determining the

jury‘s verdict.‖ See King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997).

      Dr. Compton was not the lynchpin of Appellant‘s case.         Throughout the

trial, the defensive theory was that Appellant, who suffers from chronic mental

illness, was depressed because his wife was leaving him and he had an adverse

reaction to his recently changed psychiatric medications.     Dr. Compton was not

qualified to render an opinion on the issue of Appellant‘s medications.      Indeed,

she said so herself when she testified, ―I‘m not a psychopharmacologist. I‘ll let Dr.

Lipman speak to that.‖ (RR5:266-67).      When this is then combined with the fact

that Dr. Compton did not even have an expert opinion regarding Appellant‘s intent,




                                         33
it is clear that any contribution she could have made to Appellant‘s case would

have been weak at best.

          Appellant was not precluded from presenting a defense. It is undisputed that

he stabbed and killed Mary and Ray Davis. The only contested issue was his

intent.     In support of his position that he lacked the requisite intent, Appellant

presented expert testimony from Dr. McGarrahan and Dr. Lipman.                    Dr.

McGarrahan testified that Appellant has a history of major depressive disorder and

attention deficit hyperactivity disorder and that he has a generalized anxiety

disorder. (RR6:119-20). Dr. Lipman testified regarding the medications Appellant

was prescribed and taking at the time of the offenses. (RR6:153, 182-83).          He

testified that Appellant‘s medications were changed or increased at the time of the

offense. (RR6:186-90).        Appellant also presented testimony from his daughter

Brianna that during the week preceding the murders, Appellant was having trouble

sleeping. (RR6:23-25).        He presented testimony from his younger sister Susan

that when Donya left, he was depressed, tired, and ―spaced out[.]‖          (RR7:18).

Susan testified that after Donya left, before the murders, Appellant started going

back to church. (RR7:20-21).         He became concerned that Donya‘s video game

was a ―portal of sin[.]‖ (RR7:21, 26). His brother Dave testified that Appellant

was depressed and concerned about his finances.       (RR7:48-50, 55). In light of the

entire record in this case, this Court can have fair assurance that any error in



                                           34
excluding Dr. Compton‘s testimony did not affect Appellant‘s substantial rights.

See Tex. R. App. P. 44.2(b); King, 953 S.W.2d at 271. Accordingly, any alleged

error should be disregarded.

      Appellant‘s first and second issues should be overruled.

STATE’S RESPONSE TO ISSUE NO. THREE: APPELLANT HAS FAILED TO PRESERVE
ERROR FOR THIS COURT’S REVIEW. IN ANY EVENT, EVEN ASSUMING ERROR WAS
PRESERVED, THE TRIAL COURT PROPERLY OVERRULED HIS REQUEST FOR AN
INSTRUCTION REGARDING THE LESSER-INCLUDED OFFENSE OF MANSLAUGHTER.

      Appellant contends that the trial court erred in failing to instruct the jury

regarding a lesser-included offense. Specifically, Appellant contends that he was

entitled to an instruction regarding the lesser-included offense of manslaughter.

Appellant‘s contentions lack merit and should be overruled.

                                 Pertinent Facts

      During the charge conference, the following exchange took place:

      [Trial Court]: Okay. Let‘s meet back here at 1:30. And I need
      everybody to look over the Charge before we get back.

            (Break taken, 12:15 – 1:38)

            (Open court, defendant present, no jury)

      [Trial Court]: All right. Mr. Parks has looked over the Charge and he
      and Ms. Womble are here talking about it and it looks like it stands
      still as it is right now.

      [Defense Counsel]: You‘re asking if we‘re okay with the Charge as it
      is?




                                          35
      [Trial Court]: I got your objections as to the inclusion of insanity as
      well as the lesser included of voluntary manslaughter.

      [Defense Counsel]: Judge, I think we would also ask for negligent
      homicide.

      [Trial Court]: To those I say, no, but your objections are noted.

(RR8:83-84).     The trial court‘s charge to the jury did not contain instructions

regarding any lesser-included offenses. (CR:500-04).

                                   Applicable Law

                              Lesser-Included Offenses

      The determination of whether the trial court should include a lesser-included

offense instruction in the charge requires a two-step analysis: (1) whether the

requested charge is for a lesser-included offense of the charged offense, and (2)

whether there is trial evidence that supports giving the instruction to the jury. Rice

v. State, 333 S.W.3d 140, 144 (Tex. Crim. App. 2011). An appellate court reviews

the first step de novo. See id. An offense is a lesser included offense if: (1) it is

established by proof of the same or less than all the facts required to establish the

commission of the offense charged; (2) it differs from the offense charged only in

the respect that a less serious injury or risk of injury to the same person suffices to

establish its commission; (3) it differs from the offense charged only in the respect

that a less culpable mental state suffices to establish its commission; or (4) it




                                          36
consists of an attempt to commit the offense charged or an otherwise included

offense. See Tex. Code Crim. Proc. Ann. art. 37.09.

      In applying the second step, an appellate court must determine whether there

is some evidence in the record that would permit a rational jury to find that, if the

defendant is guilty, he is guilty only of the lesser-included offense. Rice, 333

S.W.3d at 145. The evidence must be ―directly germane‖ to the lesser-included

offense and must establish the lesser-included offense as a valid, rational

alternative to the charged offense. Cavazos v. State, 382 S.W.3d 377, 385 (Tex.

Crim. App. 2012). ―This second step is a question of fact and is based on the

evidence presented at trial.‖ Id. at 383.

                                    Charge Error

      An appellate court‘s first duty in evaluating a jury charge issue is to

determine whether error exists. See Middleton v. State, 125 S.W.3d 450, 453 (Tex.

Crim. App. 2003). If error is found, the court should then analyze that error for

harm. See id.

      All objections to the charge must be made at the time of trial. See Tex. Code

Crim. Proc. Ann. art. 36.19. In the event that there is no objection to the charge,

an appellate court will reverse only if the record shows that the error was so

egregiously harmful that the defendant was denied a fair and impartial trial. See

Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985).            The actual



                                            37
degree of harm must be evaluated in light of the entire jury charge, the state of the

evidence, including the contested issues and weight of probative evidence, the

argument of counsel, and any other relevant information revealed by the record of

the trial as a whole. See id. ―Errors that result in egregious harm are those that

affect ‗the very basis of the case,‘ ‗deprive the defendant of a valuable right,‘ or

‗vitally affect a defensive theory.‘‖ Ngo v. State, 175 S.W.3d 738, 750 (Tex. Crim.

App. 2005) (citing Hutch v. State, 922 S.W.2d 166, 171 (Tex. Crim. App. 1996)).

                           Application of Law to Facts

      As a threshold matter, it is the State‘s position that Appellant has failed to

preserve for this Court‘s review, his complaint that the trial court improperly

overruled his request for an instruction regarding the lesser-included offense of

manslaughter.     In order to preserve error regarding the jury charge there must

either be an objection or a requested charge.    See Vasquez v. State, 919 S.W.2d

433, 435 (Tex. Crim. App. 1996) (citing Boles v. State, 598 S.W.2d 274, 278 (Tex.

Crim. App. 1980)); see also Tex. Code Crim. Proc. Ann. art. 36.14. The trial court

stated, ―I got your objections as to the inclusion of insanity as well as the lesser

included of voluntary manslaughter[;]‖ however, there is nothing in the record to

indicate when, how, or on what basis those objections were actually made.      In his

brief, Appellant cites the aforementioned exchange, however, the only charge

requested by Appellant at that point on the record was negligent homicide.



                                         38
Appellant does not point to any other place in the record showing that he made a

request, either orally or in writing, that manslaughter be included in the charge.

Appellant does not point to any other place in the record showing that he objected

to the trial court‘s refusal to include an instruction regarding manslaughter in the

charge.    The trial court‘s statement suggests that that there may have been a

discussion regarding the charge that took place off-the-record, but there is no

specific evidence of a request or an objection regarding manslaughter.          See

Blanton v. State, No. 74,214, 2004 Tex. Crim. App. LEXIS 2210, at *35 (Tex.

Crim. App. 2004) (not designated for publication) (finding Blanton failed to

preserve his complaint regarding the failure to include certain instructions in the

charge where he failed to request that the instructions be included and he failed to

object to the omission of those instructions).

      Nevertheless, reversal is not required because Appellant was not entitled to

an instruction regarding manslaughter.     The State agrees that the first prong has

been met because Texas courts have recognized that manslaughter is a lesser-

included offense of capital murder. See Mathis v. State, 67 S.W.3d 918, 925 (Tex.

Crim. App. 2002) (citing Cardenas v. State, 30 S.W.3d 384, 392-93 (Tex. Crim.

App. 2000)). The evidence in this case, however, fails to satisfy the second prong;

there is no evidence that would permit a rational jury to find Appellant guilty only

of manslaughter.



                                          39
      A person commits the offense of manslaughter if he recklessly causes the

death of an individual. Tex. Penal Code Ann. § 19.04(a); Arnold v. State, 234

S.W.3d 664, 671 (Tex. App.—Houston [14th Dist.] 2007, no pet.). A person acts

recklessly with respect to circumstances surrounding his conduct or the result of

his conduct when he is aware of but consciously disregards a substantial and

unjustifiable risk that the circumstances exist or the result will occur. Tex. Penal

Code Ann. § 6.03(c). Thus, for Appellant to be entitled to a jury charge on

manslaughter, there would have to be affirmative evidence that Appellant did not

intend to cause death when he stabbed Mary and Ray, as well as affirmative

evidence from which a rational juror could infer that Appellant was aware of but

consciously disregarded a substantial and unjustifiable risk that their deaths would

occur as a result of his conduct. See Cavazos, 382 S.W.3d at 385. The record

contains no such evidence.

      Appellant argues that ―had Dr. Kristi Compton been allowed to testify [he]

would surely have been entitled to a charge on manslaughter.‖ (See Appellant‘s

Brief p. 26). The State disagrees. As stated in response to Appellant‘s first issues,

Dr. Compton had no evidence to offer regarding Appellant‘s intent as it related to

the capital murder of Mary and Ray Davis.          Indeed, during her proffer, Dr.

Compton stated that ―[e]thically, [she could not] say one way or the other if

[Appellant] formed the intent to kill Mr. and Mrs. Davis and his wife.‖ (RR5:269).



                                         40
Thus, any claim that had Dr. Compton been allowed to testify she would have

provided affirmative evidence entitling Appellant to an instruction on

manslaughter is purely speculative. See Cavazos, 382 S.W.3d at 385 (stating that

meeting the threshold under the second prong ―requires more than mere

speculation – it requires affirmative evidence that both raises the lesser-included

offense and rebuts or negates an element of the greater offense.‖).

      Next, Appellant cites the testimony of Dr. McGarrahan and Dr. Lipman as

―evidence . . . from which the jury could have reasonably inferred a lack of the

necessary mens rea for the offense of capital murder.‖ (See Appellant‘s Brief pp.

26-27).    Again, the State disagrees with Appellant. Like Dr. Compton, neither

witness provided affirmative evidence that Appellant only acted recklessly.      Dr.

McGarrahan testified regarding the psychological and cognitive testing she

performed on Appellant. (RR6:117-18). She testified he ―has a number of mental

health issues‖ and that he has ―a long history of impulsivity[.]‖ (RR6:118-20).

She testified that Appellant suffers from depression, and acknowledged that

―depression can range from . . . feeling down and blue to a severe depression that

makes a person have a break with reality‖ but she did not testify that Appellant

suffered any such break from reality when he stabbed Mary and Ray to death.

(RR6:121). She testified that various stressors (job, finances, relationship) may

exacerbate depression and that Appellant had those stressors in his life, but she did



                                         41
not testify that Appellant‘s depression was exacerbated to the point that he lost

touch with reality. (RR6:122-23, 127). Dr. McGarrahan testified that Appellant

struggled to plan and organize, but she conceded that he was not void of the ability

to do so. (RR6:131-32). Importantly, Dr. McGarrahan testified that she was ―not

here to provide an opinion one way or another on [the issue of Appellant‘s intent at

the time he committed the instant offense].‖ (RR6:150).           Dr. McGarrahan‘s

testimony did not negate the evidence that Appellant stabbed Mary and Ray

intentionally or knowingly, and she did not provide affirmative evidence that

Appellant stabbed them recklessly.

      Dr. Lipman testified regarding the medications Appellant was prescribed

and taking at the time of the offenses. (RR6:153, 182-83).          He testified that

Appellant‘s medications were changed or increased at the time of the offense.

(RR6:186-90).      He testified that, in his opinion, the use of anticonvulsants

―appears [to have] exacerbate[d] his depression.‖ (RR6:193).       In his report, Dr.

Lipman wrote that ―factors combin[ed] to produce a state of suicidal homicidality.‖

(RR6:194-95; DX8).       He testified that he believed that ―whenever [Appellant]

was experiencing demon possessions, he was psychotic.‖ (RR6:207).              When

asked when the psychosis began, however, he testified that he did not know.

(RR6:207).    He later clarified that ―if [Appellant] was acting under the belief that

he was responding to the needs of demon possessions, then [he would] consider



                                         42
that psychotic.‖ (RR6:209). Dr. Lipman‘s testimony did not negate the evidence

that Appellant stabbed Mary and Ray intentionally and knowingly, and he did not

provide affirmative evidence that Appellant did so recklessly.

       The record in this case does not support a charge of manslaughter. There is

no evidence directly germane to recklessness. See Cavazos, 382 S.W.3d at 383,

385. And, there is no evidence that Appellant did not intentionally or knowingly

cause the death of Mary and Ray. The record does not contain evidence that would

have permitted the jury to reach a rational conclusion that if guilty, Appellant was

guilty only of recklessly causing the death of Mary and Ray. Because the evidence

presented at trial did not establish manslaughter as a valid, rational alternative to

capital murder, the trial court did not err in failing to instruct the jury on

manslaughter as a lesser-included offense.      There is no error in the charge.

Because there is no error in the charge, this Court should decide Appellant‘s third

issue against him without reaching the issue of harm. See Almanza, 686 S.W.2d at

174.

       Appellant‘s third issue should be overruled.


STATE’SCROSS-POINT: THE JUDGMENT SHOULD BE MODIFIED OR REFORMED TO
CORRECTLY REFLECT APPELLANT’S SENTENCE.

       The judgment in this case reflects that Appellant was sentenced to life in

prison. This is incorrect. Appellant was sentenced to life in prison without the



                                         43
possibility of parole. The judgment should be modified or reformed to correct this

error.


Applicable Law

         This Court has the authority to correct the judgment of the court below to

make the record speak the truth when it has the necessary data and information to

do so. Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim.

App. 1993); see also Estrada v. State, 334 S.W.3d 57, 63-64 (Tex. App.—Dallas

2009, no pet.).

Application of Law to Facts

         The judgment should be modified or reformed. According to the judgment

in this case, Appellant‘s ―Punishment and Place of Confinement‖ is ―LIFE YEARS

INSTITUTIONAL DIVISION, TDCJ[.]‖ (CR:495-96). This is incorrect. In fact,

Appellant received a mandatory sentence of life imprisonment without the

possibility of parole.   (RR8:155) See Tex. Penal Code Ann. 12.31(a)(2).        The

State respectfully requests that this Court modify or reform the judgment to correct

the identified error and affirm as modified.




                                         44
                                    PRAYER

      The State prays that this Honorable Court will modify and affirm the

judgment in this case.

                                                 Respectfully submitted,


Susan Hawk                                       Christine Womble
Criminal District Attorney                       Assistant District Attorney
Dallas County, Texas                             State Bar No. 24035991
                                                 Frank Crowley Courts Building
                                                 133 N. Riverfront Blvd., LB-19
                                                 Dallas, Texas 75207-4399
                                                 (214) 653-3625
                                                 (214) 653-3643 fax



                         CERTIFICATE OF COMPLIANCE

      I hereby certify, as required by Texas Rule of Appellate Procedure

9.4(i)(2)(B), that the foregoing document contains 11,703 words, inclusive of all

content.




                                                 _____________________
                                                 Christine Womble




                                       45
                           CERTIFICATE OF SERVICE

      I hereby certify that a true copy of the foregoing brief was served on

Douglas Parks, attorney for Appellant, 321 Calm Water Lane, Holly Lake Ranch,

Texas, 75765, via e-service, on September 15, 2015.




                                                 Christine Womble




                                       46
