                                                                               AP-77,034
                                                           COURT OF CRIMINAL APPEALS
                                                                            AUSTIN, TEXAS
                                                           Transmitted 7/20/2015 1:52:16 PM
                                                             Accepted 7/20/2015 2:22:10 PM
  July 20, 2015                                                              ABEL ACOSTA
                              NO. AP-77,034                                          CLERK

                                 IN THE

                    COURT OF CRIMINAL APPEALS

                          AT AUSTIN, TEXAS

BRANDON DANIEL                     §                        APPELLANT

VS.                                §

THE STATE OF TEXAS                 §                          APPELLEE

         APPEAL FROM THE 403RD JUDICIAL DISTRICT COURT

                       TRAVIS COUNTY, TEXAS

                      CAUSE NO. D-1-DC-12-201718


                              STATE’S BRIEF


                                        ROSEMARY LEHMBERG
                                        District Attorney
                                        Travis County, Texas
                                        Lisa Stewart
                                        Assistant District Attorney
                                        State Bar No. 06022700
                                        Lisa.Stewart@traviscountytx.gov
                                        AppellateTCDA@traviscountytx.gov
                                        P.O. Box 1748
                                        Austin, Texas 78767
                                        (512) 854-9400
Oral Argument Not Requested             Fax No. 854-4810



                                    1
                                                    TABLE OF CONTENTS

	  

TABLE OF CONTENTS .................................................................................................. 2	  

INDEX OF AUTHORITIES ............................................................................................ 4	  

STATEMENT OF THE CASE ........................................................................................ 5	  

STATEMENT REGARDING ORAL ARGUMENT ..................................................... 6	  

STATEMENT OF FACTS FROM GUILT/INNOCENCE ........................................... 6	  
       Facts of this Capital Murder Committed at an Austin Walmart ................................................. 6	  
       Evidence Recovered After Appellant Taken into Custody ......................................................... 9	  
       Forensic Evidence ..................................................................................................................... 12	  
       Evidence from Officer Padron’s Autopsy................................................................................. 12	  
       Officer Padron’s Personal and Professional Background ......................................................... 13	  
       Defense Evidence at Guilt/Innocence ....................................................................................... 15	  

STATEMENT OF FACTS FROM PUNISHMENT PHASE ...................................... 18	  
       The Night of this Capital Murder Offense ................................................................................ 18	  
       Lack of Remorse and Extraneous Bad Acts in Texas ............................................................... 18	  
       Extraneous Bad Acts Committed in Colorado .......................................................................... 22	  
       Extraneous Bad Acts and Disciplinary Violations in Jail ......................................................... 23	  
       Appellant’s Mail and Recorded Phone Conversations in Jail ................................................... 26	  
       Inmate Classification System and Prison “Society” ................................................................. 28	  
       Officer Padron’s Personal and Professional History ................................................................ 30	  
       Defense Evidence at the Punishment Phase.............................................................................. 32	  
       State’s Rebuttal Evidence at Punishment ................................................................................. 38	  
       The Verdict at the Punishment Phase ....................................................................................... 40	  

SUMMARY OF THE ARGUMENTS ........................................................................... 41	  

       State’s Reply to Appellant’s First Point of Error ...................................................................... 41	  
       State’s Reply to Appellant’s Second Point of Error ................................................................. 42	  
       State’s Reply to Appellant’s Third Point of Error .................................................................... 43	  




                                                                          2
STATE’S REPLY TO APPELLANT’S FIRST POINT OF ERROR ........................ 44	  

   The evidence was legally sufficient to establish that there is a probability that appellant would
   commit criminal acts of violence and constitute a continuing threat to society. ...................... 44	  
     Standard and Scope of Review ............................................................................................. 44
      Application of Law to Facts .................................................................................................. 45

STATE’S REPLY TO APPELLANT’S SECOND POINT OF ERROR ................... 52	  
   Appellant did not suffer harm as a result of the trial court’s denial of his challenge for cause to
   venireperson Reading. Alternatively, the trial judge did not err in denying appellant’s
   challenge for cause to venireperson Reading............................................................................ 52	  
     Appellant Cannot Show Harm .............................................................................................. 52
      Alternatively, the Trial Judge Did Not Err in Denying the Challenge for Cause ................. 53

STATE’S REPLY TO APPELLANT’S THIRD POINT OF ERROR....................... 61	  

   Appellant failed to preserve any alleged error for review because there was no adverse ruling.
   Alternatively, the trial court did not abuse its discretion in limiting the voir dire hearing to the
   expert’s qualifications and the basis of her findings. ................................................................ 61	  
     Relevant Facts ....................................................................................................................... 61
      Appellant Failed to Preserve Any Alleged Error for Review ............................................... 62
      The Trial Judge Afforded Appellant a Proper Rule 705(b) Hearing .................................... 63

PRAYER .......................................................................................................................... 65	  

CERTIFICATE OF COMPLIANCE ............................................................................ 65	  

CERTIFICATE OF SERVICE ...................................................................................... 66	  




                                                                     3
                                            INDEX OF AUTHORITIES
Cases	  

Alba v. State, 905 S.W.2d 581 (Tex.Crim.App. 1995), cert.denied, 516 U.S. 1077 (1996)......... 63
Barley v. State, 906 S.W.2d 27 (Tex.Crim.App. 1995) ................................................................ 47
Bell v. State, 938 S.W.2d 35 (Tex.Crim.App. 1996), cert.denied, 522 U.S. 827 (1997). ............. 45
Beltran v. State, 728 S.W.2d 382 (Tex.Crim.App. 1987) ............................................................. 50
Berry v. State, 233 S.W.3d 847 (Tex.Crim.App. 2007) ................................................................ 50
Chambers v. State, 903 S.W.2d 21 (Tex.Crim.App. 1995) .......................................................... 44
Comeaux v. State, 445 S.W.3d 745 (Tex.Crim.App. 2014) .......................................................... 53
Davis v. State, 313 S.W.3d 317 (Tex.Crim.App. 2010) ........................................................ passim
Devoe v. State, 354 S.W.3d 457, 461-62 (Tex.Crim.App. 2011) ................................................. 45
Druery v. State, 225 S.W.3d 491 (Tex.Crim.App. 2007) ............................................................. 44
Estrada v. State, 313 S.W.3d 274 (Tex.Crim.App. 2010) ............................................................ 46
Feldman v. State, 71 S.W.3d 738 (Tex.Crim.App. 2002)....................................................... 58, 61
Freeman v. State, 340 S.W.3d 717 (Tex.Crim.App. 2011) .......................................................... 44
Fuller v. State, 253 S.W.3d 220 (Tex.Crim.App. 2008), cert.denied, 555 U.S. 1105 (2009) ...... 63
Gardner v. State, 306 S.W.3d 274 (Tex.Crim.App. 2009) ........................................................... 58
Gonzales v. State, 353 S.W.3d 826 (Tex.Crim.App. 2011) .............................................. 52, 58, 61
Goss v. State, 826 S.W.2d 162 (Tex.Crim.App. 1992), cert.denied, 113 S.Ct. 3035 (1993) ....... 64
Huffman v. State, 746 S.W.2d 212 (Tex.Crim.App. 1988) ........................................................... 50
Jenkins v. State, 912 S.W.2d 793 (Tex.Crim.App. 1995) (op. on reh’g.) ..................................... 62
Soliz v. State, 432 S.W.3d 895 (Tex.Crim.App. 2014) ........................................................... 44, 45
Williams v. State, 273 S.W.3d 200 (Tex.Crim.App. 2008)..................................................... 25, 49


Statutes	  

Art. 35.15(a), V.A.C.C.P. ............................................................................................................. 52
Art. 35.16(b)(3), V.A.C.C.P.......................................................................................................... 58
Art. 35.16(c)(2), V.A.C.C.P. ......................................................................................................... 58
Art. 37.071(h), V.A.C.C.P. ............................................................................................................. 5


Rules	  

Tex.R.App.Proc. 33.1 ............................................................................................................. 59, 63
Tex.R.App.Proc. 9.4(e) ................................................................................................................. 65
Tex.R.App.Proc. 9.4(i)(2)(A) ....................................................................................................... 65
Tex.R.Evid. 705(b) ..................................................................................................... 43, 62, 63, 64




                                                                    4
                                  NO. AP-77,034

                                      IN THE

                       COURT OF CRIMINAL APPEALS

                              AT AUSTIN, TEXAS

BRANDON DANIEL                           §                            APPELLANT

VS.                                      §

THE STATE OF TEXAS                       §                              APPELLEE

             APPEAL FROM THE 403RD JUDICIAL DISTRICT COURT

                           TRAVIS COUNTY, TEXAS

                         CAUSE NO. D-1-DC-12-201718

TO THE HONORABLE COURT OF CRIMINAL APPEALS:

      Now comes the State of Texas and files its brief in response to that of the

appellant.


                         STATEMENT OF THE CASE


      The State indicted appellant for the capital murder of Austin Police Officer

Jaime Padron. (CR 98, 100). The jury found appellant guilty of capital murder as

alleged in the indictment. (CR 184). The trial court sentenced appellant to death

based on the jury’s answers to the punishment issues. (CR 189; RR 26: 221).

Appellant timely filed a motion for new trial, which was overruled by operation of



                                         5
law. (CR 196). Although appeal to this Court is automatic, the appellant timely

filed notice of appeal. (CR 197). Art. 37.071(h), V.A.C.C.P.


                  STATEMENT REGARDING ORAL ARGUMENT

         The issues presented in this case are not issues of first impression but

involve the application of facts to well-settled law. Thus, the State does not

request oral argument in this case, as it would not significantly aid the Court in the

resolution of the issues presented in this appeal.


               STATEMENT OF FACTS FROM GUILT/INNOCENCE

Facts	  of	  this	  Capital	  Murder	  Committed	  at	  an	  Austin	  Walmart	  

         In the early hours1 of April 6, 2012, Walmart employee Sean McCarthy

encountered appellant2 while restocking water in the store. (RR 18: 21). Appellant

asked McCarthy to hold his produce bags, and appellant left the store to obtain

something. (RR 18: 22-24). Appellant looked “like he had a rough night,” but

McCarthy did not feel threatened by him. (RR 18: 23). Walmart retail manager

Lincoln LeMere called 3113 because appellant appeared intoxicated, and LeMere

feared he would be a danger to himself and others. (RR 18: 54).



1
    The time was approximately midnight to 1 a.m. (RR 18: 24).
2
    McCarthy identified appellant in the courtroom. (RR 18: 32-34).
3
    The call was transferred to 911. (RR 18: 54).


                                                    6
       Austin Police Officer Jaime Padron responded to the call, and he and

LeMere entered the store and encountered appellant. (RR 18: 58-59, 177, 179).

Officer Padron announced that he was with the Austin Police Department and told

appellant to stop. (RR 18: 59-60, 132). Appellant lowered his shoulder, ducked

away from Officer Padron, and ran for the exit. (RR 18: 59). Officer Padron gave

chase and tackled appellant from behind. (RR 18: 60). Walmart employee Monica

Lawson saw appellant pull a gun from his waistband as Officer Padron attempted

to subdue appellant and take his gun. (RR 18: 95-96). As Officer Padron tackled

appellant, LeMere heard a gunshot, and he heard an additional gunshot when

appellant and Officer Padron fell to the ground. (RR 18: 60-61, 63). Lawson’s co-

worker, Alma Ramirez, testified that she saw appellant put the gun to Officer

Padron’s neck and shoot him. (RR 18: 119-120).

       LeMere realized appellant had a gun when he saw Officer Padron “bleeding

out.” (RR 18: 61). LeMere immediately jumped on appellant who raised his arm

and fired a third shot, which just missed LeMere’s right ear and night manager

Archie Jordy’s left ear.4 (RR 18: 61, 133-134). LeMere felt that that third shot

was meant for him. (RR 18: 62).




4
 Jordy had followed appellant through the store because he suspected he was going to shoplift,
but appellant did not appear armed. (RR 18: 56, 129, 153).


                                               7
       LeMere pushed appellant’s arm to the ground, and McCarthy and Jordy

stomped on appellant’s arm, making him release the gun, and kicked the gun aside.

(RR 18: 62). Appellant raised his head from the floor, looked at Officer Padron,

“kind of laughed, chuckled and said, I killed a cop.” (RR 18: 64, 151). Officer

Padron never pulled a weapon of any kind when chasing appellant. (RR 18: 98).

       It was obvious to the various Walmart employees5 that Padron was a police

officer because of his uniform, “all the gadgets,” and his apparent fitness. (RR 18:

38). Officer Padron was wearing a full Austin Police Department uniform. (RR

18: 38, 56). Officer Padron had not removed his gun from his gun belt. (RR 18:

64). The security hood on Officer Padron’s holster was still in the locked position

with his gun inside the holster. (RR 18: 204-205).

       Walmart employees tried to keep Officer Padron alive while police arrived

at the scene and handcuffed appellant. (RR 18: 35). Will Garlow removed his

shirt and applied pressure to Officer Padron’s neck until the squirting blood

stopped. (RR 18: 166-167). Garlow talked to Officer Padron and attempted to

keep him awake. But, Officer Padron never responded verbally, and he barely

focused his eyes. (RR 18: 166, 167-168). Garlow and Austin police officer Chris

Kroger attempted to clear Officer Padron’s airway, but it was too late, as Officer
5
  Walmart employees Monica Lawson, Alma Ramirez, and William Garlow all immediately
recognized that Officer Padron was a police officer because of his uniform and badge. (RR 18:
94, 118-119, 162). Austin police officer Steve Martinez was in full uniform during trial and
displayed it for the jury since Officer Padron had worn the same type uniform. (RR 18: 217).



                                              8
Padron had bled out. (RR 18: 167, 181). EMS pronounced Officer Padron dead at

the scene. (RR 18: 205).


Evidence	  Recovered	  After	  Appellant	  Taken	  into	  Custody	  

       Austin police officers removed appellant from the Walmart and searched

him for additional weapons. (RR 18: 235). Police found a magazine with six .380

hollow point bullets6 in appellant’s pocket. (RR 19: 34). Homicide Detective

Brett Bailey collected the appellant’s firearm at the scene.7 (RR 19: 64). The

firearm, a Jimenez Arms .380, still contained the magazine in the grip of the

weapon. (RR 19: 65; SX49). The firearm had one live .380 cartridge in the

chamber and one in the magazine. (RR 19: 65-66; SX27). Thus, when Detective

Bailey found the firearm, it was capable of firing two more rounds. (RR 19: 66).

Firearms examination determined that the three casings found at the scene had all

been fired from appellant’s gun. (RR 20: 145-146).

       Police also searched the backpack appellant had with him and found Reese’s

Peanut Butter ice cream bars, Little Debbie Oatmeal Crème Pies, three bags of

peanuts, filet mignon steaks, beef jerky, Hostess CupCakes, and two bottles of


6
  Detective Bailey testified that hollow point bullets typically cause more damage upon impact
than lead ball ammunition. (RR 19: 62).
7
 State’s exhibit 62 reflected appellant purchased this weapon on February 23, 2009, in Fort
Collins, Colorado. (RR 20: 60-61). State’s exhibit 62 was admitted into evidence without
objection. (RR 20: 60).



                                               9
Korbel Champagne. (RR 18: 235; RR 22: 57). Appellant had killed Officer

Padron over $56.90 worth of shoplifted items. (RR 22: 62; SX78).8

       Upon being taken into custody, appellant asked Austin police officer Albert

Arevalo9 questions regarding the county of the offense, the relative leniency of

Travis County versus Williamson County, and if he would get life or death for

what he had done. (RR 18: 245). Appellant winked and smiled at Officer Arevalo

as he put him in a patrol car. (RR 18: 243). Officer Arevalo noticed that appellant

had red, watery eyes and slurred speech and seemed sleepy. (RR 18: 248). Yet,

appellant was alert and oriented according to EMS protocol and politely answered

questions. (RR 18: 222). Appellant confirmed that he had no injuries or medical

problems, although he did have “blow back” blood on his face from Officer

Padron’s fatal injury. (RR 18: 222; RR 19: 37-38; SX7). Appellant also told EMS

technicians that he had not consumed any alcohol or drugs. (RR 18: 222).

Appellant asked EMS technician Christopher Lester if he was going to get life in

prison for “this.” (RR 18: 223). Appellant showed no emotion; he was “very

blank, very cold.” (RR 18: 224).




8
 The evidence of the specific food items and the total coast thereof was admitted at the
punishment phase. (RR 22: 57, 62).
9
  Officer Arevalo spelled his name for the court reporter as “Arevalo,” but it is recorded in the
record as “Arevelo.” (RR 18: 238). The State uses the spelling of the name as dictated into the
record by the officer.

                                                10
      During transport to police headquarters, appellant talked to himself and

made a comment about “blasting” one of the officers in the car. (RR 19: 39, 45;

SX15). At headquarters, appellant saw an old police department motorcycle that

he thought was cool, and he spontaneously admitted “I killed a cop.” (RR 18: 248-

249; RR 19: 113). Appellant spoke matter of factly, without emotion. (RR 19:

114). Later, when a nurse drew appellant’s blood pursuant to a warrant at the

Travis County Jail, appellant chuckled, looked at his hands, and said “I guess I got

that cop’s blood on my hands.” (RR 19: 98-99). Appellant, indeed, had blood on

his hands. (RR 19: 98).

      Appellant waived his Miranda rights and spoke with police. (RR 19: 117-

118). The State played appellant’s recorded interrogation for the jury. (RR 19:

142; SX59). Appellant appeared cognizant of his actions, used appropriate

terminology, and did not present any indication of mental illness or lack of mental

fitness. (RR 19: 119). Appellant admitted to have recently taken Xanax, but he did

not seem intoxicated. (RR 19: 120). Appellant knew every single detail involving

his murder of Officer Padron, including that he held his gun against Officer

Padron’s skin. (RR 19: 131; RR 20: 57). He knew that he shot an Austin Police

Officer, and he admitted numerous times that he was the one who shot Officer

Padron. (RR 20: 57).




                                         11
Forensic	  Evidence	  

       DNA testing confirmed the presence of Officer Padron’s DNA profile on

appellant’s right hand. (RR 20: 84). Forensic testing of appellant’s blood showed

no alcohol in his blood but revealed a high level of alprazolam (aka Xanax) and

marijuana. (RR 20: 89, 93-94, 100). Text messages recovered from appellant’s

cell phone revealed that on April 4, 2012, appellant arranged for the purchase of

eight bars of Xanax and that, the next day, he increased that purchase request to ten

bars. (RR 20: 24). Police executed a search warrant on appellant’s apartment and

discovered sticky notes reading “stop fucking yourself up” and “when I rise to

power, you will be sterilized.” (RR 20: 29-30, 32).


Evidence	  from	  Officer	  Padron’s	  Autopsy	  

       Officer Padron suffered a gunshot wound to his neck, with the entrance

wound under the left side of his neck (SX65) and the exit wound in the back right

of his neck (SX66). (RR 20: 111). This gunshot travelled through Officer

Padron’s voice box, fractured his fifth cervical vertebra (neck bone), and damaged

two arteries that carried blood to his brain. (RR 20: 113). This gunshot created a

large tear in the right common carotid artery and tore apart the vertebral artery.




                                               12
(RR 20: 113-114). The gunshot injuries to these arteries caused rapid

hemorrhaging and were fatal.10 (RR 20: 116-118).

       Black gunpowder soot encircled the entrance wound on Officer Padron’s

neck, confirming appellant placed the gun against his skin when he fired. (RR 20:

122). The muzzle of the gun actually made contact with Officer Padron’s skin,

leaving a muzzle imprint. (RR 20: 123). The medical examiner had no doubt that

appellant pressed the gun barrel up against Officer Padron’s neck when he shot

him. (RR 20: 124). The overall path of the bullet was front to back and to the

right. (RR 20: 114).

       Appellant had also shot Officer Padron in the chest through the right breast

pocket of his uniform. (RR 20: 112). But, Officer Padron had been wearing an

armored vest so he did not suffer any damage to his body from this gunshot. (RR

20: 112). Firearms examination revealed that the distance of the gun’s muzzle to

Officer Padron’s uniform was less than 14 inches. (RR 20: 149).


Officer	  Padron’s	  Personal	  and	  Professional	  Background	  

       Officer Padron grew up near San Angelo, Texas. (RR 20: 170). After

graduating high school in 1989, he joined the Marines and did a tour in Desert

Storm, the first Gulf War. (RR 20: 170-171). He received many commendations


10
  The medical examiner confirmed that hollow point bullets cause more damage to a person’s
body than lead filled bullets. (RR 20: 116).


                                             13
while in the Marines and an honorable discharge. (RR 20: 171). After serving

four years in the Marines, Officer Padron became a corrections officer and then a

police officer, fulfilling a life-long dream. (RR 20: 172).

      Officer Padron was a servant in his church, in his community, and for his

country. (RR 20: 172). Officer Padron served 14 years with the City of San

Angelo Police Department and became a detective. (RR 20: 173). He also worked

with middle school students in San Angelo and had a positive impact on their lives,

leading students to become Marines or police officers. (RR 20: 173-174).

      Supporting his wife’s career choice, Officer Padron moved to Austin with

his family. (RR 20: 175). He became a patrol officer with the Austin Police

Department, and he was very happy. (RR 20: 175). Officer Padron’s brother had

offered him a more lucrative job in San Angelo, but Officer Padron declined it

because he loved being a police officer and being in Austin with his two young

daughters. (RR 20: 176).

      At the time of his murder, Officer Padron was planning his life with a new

girlfriend. (RR 20: 178). He and his girlfriend were looking for a home with

property for horses, which he loved. (RR 20: 178). But, the “world turned to a

very ugly place” for the Padron family the day their son and brother was killed.

(RR 20: 181). After a funeral in Austin, the family took Officer Padron back home




                                         14
to San Angelo. (RR 20: 181). The City of San Angelo dedicated a park in Officer

Padron’s honor. (RR 20: 181-182).


Defense	  Evidence	  at	  Guilt/Innocence	  	  

       Jenna Feland dated appellant from July of 2008, till December of 2011,

when he ended the relationship. (RR 20: 185). Appellant used drugs while the

couple lived in Colorado, mostly using marijuana, but he also did mushrooms,

acid, and Ecstasy. (RR 20: 189-190). In fact, appellant took Ecstasy daily. (RR

20: 190).

       Feland claimed that appellant did not do well after their break up, and

appellant told Feland he was really sad and “in a downward spiral.” (RR 20: 12).

Appellant started drinking and taking Xanax. (RR 20: 193). Despite the alleged

downward spiral, appellant had a new girlfriend, Nikki Nance, that same

December, and he and Feland barely had contact prior to this offense. (RR 20:

206, 231-232).

       Feland confirmed that appellant did not have a mental illness. (RR 20: 207).

By impeaching Feland with her grand jury testimony, the State established that

appellant was not generally a depressed person and that Feland was not aware of

appellant having mental problems. (RR 20: 228, 234). Feland described appellant

as a quiet and reserved person who got depressed when he got in trouble. (RR 20:

234-235).


                                                15
      On cross-examination, the State also established that Feland and appellant

discussed him selling his story for $100,000, although she denied it at trial. (RR

20: 200). State’s exhibit 71, a videotaped recording of Feland visiting appellant in

jail on April 24, 2012, showed appellant had the idea to sell his story of this capital

murder, and Feland laughed throughout the video. (RR 20: 214; RR 23: 76).

Also, while in jail, appellant created a secret code so that he and Feland could

communicate without law enforcement understanding what they had written. (RR

20: 215).

      Dr. Matthew Masters, an addiction medicine practitioner, reviewed multiple

evidentiary items from the defense in preparation for his trial testimony. (RR 21:

18). Dr. Masters testified that Xanax was a highly addictive drug and the number

one benzodiazepine on the street because it was fast-acting. (RR 21: 5, 11-12). Dr.

Masters observed appellant on the crime scene video at Walmart, and the manner

in which appellant exited his motorcycle was consistent with a person intoxicated

by a benzodiazepine. (RR 21: 19). The SWIFS lab report showed appellant had

toxic levels of alprazolam in his system seven hours after his arrest, and his

toxicity level was consistent with having taken 8 to 10 Xanax pills. (RR 21: 20-

21). Thus, Dr. Masters opined that appellant’s statement to police the night of the

offense was totally unreliable due to confabulation. (RR 21: 23-24). Dr. Masters




                                          16
described appellant as an addict based on his history, his behavior, and his lab

reports. (RR 21: 27).

       On cross-examination, Dr. Masters confirmed that prior to April 2012 he had

not treated appellant or seen him in a professional manner. (RR 21: 33). Dr.

Masters conducted only a diagnostic evaluation based on what appellant told him,

what the defense provided him, and the grand jury testimony of appellant’s new

girlfriend. (RR 21: 33). Dr. Masters did not consult any members of appellant’s

family or a psychiatrist appellant had previously seen11, and Dr. Masters was not a

psychiatrist. (RR 21: 34). Dr. Masters had not seen the crime scene videotape to

know that appellant’s statement to police was consistent with that tape, thus

undermining his opinion that appellant’s statement was due to confabulation. (RR

21: 38). Appellant’s statement in the police car that he killed a police officer also

rebutted Dr. Masters’ assessment of confabulation. (RR 21: 38-39).

       After approximately one hour of deliberations, the jury found appellant

guilty of capital murder as alleged in the indictment. (RR 21: 99, 101).




11
  At punishment it was revealed that appellant self-reported that he had seen a psychiatrist in
sixth grade, but there was no evidence of the alleged doctor’s name or a diagnosis. (RR 24: 155-
156).


                                              17
             STATEMENT OF FACTS FROM PUNISHMENT PHASE

The	  Night	  of	  this	  Capital	  Murder	  Offense	  

        Appellant and his roommate Kelvin Davis12 drank and smoked marijuana

the night leading to the murder of Officer Padron. (RR 22: 123). Appellant drank

tequila, at least a half a liter of it, and Davis drank rum. (RR 22: 124, 145-146).

Appellant also took Xanax; in fact, he took approximately six pills, more than

Davis thought appellant could handle. (RR 22: 125). That evening, Davis and

appellant walked to a nearby convenience store, and appellant talked about robbing

the store. (RR 22: 127-128). Davis tried to downplay appellant’s idea to rob the

store because appellant didn’t need any further legal troubles. (RR 22: 128).

Appellant responded that he had gotten “away with worse shit.” (RR 22: 128-129).


Lack	  of	  Remorse	  and	  Extraneous	  Bad	  Acts	  in	  Texas	  

        Officer Cory Knop transported appellant from the Walmart to the Austin

Police Department that fateful day. (RR 22: 18). Appellant nonchalantly admitted

that he killed a cop. (RR 22: 19). Appellant also asked Officer Knop if he

remembered him, which Officer Knop did. Officer Knop met appellant February

2, 2012, when he arrested him for driving while intoxicated. (RR 22: 19-20).

Officer Knop conducted field sobriety tests on appellant and transported him to


12
  In January of 2012, Davis searched for a roommate in Austin on Craigslist and found
appellant. (RR 22: 116).



                                                      18
jail, all of which was videotaped. (RR 22: 21; SX72). During the DWI encounter,

appellant volunteered that he had worked multiple times as an informant for the

police in Colorado. (RR 22: 27). Appellant asked Officer Knop not to impound

his vehicle and if there were anything he could do to help appellant with the

charges. (RR 22: 28). Appellant pleaded that he was a productive member of

society and not a bad guy. (RR 22: 28-29). Appellant asked Officer Knop if he

thought the arrest was right and if he ever felt bad or if he had done the wrong

thing. (RR 22: 29-30). Appellant was polite and did not seem threatening to

Officer Knop. (RR 22: 22-23). But, appellant was also polite the night he

murdered Officer Padron. (RR 22: 23).

      About five weeks earlier, on December 27, 2011, DPS Trooper Charles

Hoover stopped appellant for speeding on a highway between Amarillo and

Lubbock. (RR 22: 167-168). The odor of marijuana from appellant’s vehicle was

quite strong, and Trooper Hoover found marijuana in appellant’s vehicle and

arrested him. (RR 22: 169, 171). Trooper Hoover seized from appellant’s vehicle

a grinder, marijuana pipe, and three pill bottles for prescription marijuana from

Colorado that were not in appellant’s name. (RR 22: 174-175; SX81, 82).

Videotaped evidence from this arrest showed appellant was very compliant with

the officer and stated that he wanted to be a productive member of society. (RR

22: 168-169, 173; SX80).



                                         19
      Austin Police Detective Roy Rector was a certified forensics examiner, and

he analyzed evidence from two computers seized after appellant’s arrest for

murdering Officer Padron. (RR 22: 44). Rector retrieved four photographs

(SX73-76) from the logical path Users\danielbra\documents\MY

BACKUP\JENNA BACKUP\Pictures. (RR 22: 45-48). The file was created May,

26, 2011, but the pictures were taken in March and May of 2009, all by the same

camera. (RR 22: 46-47). The pictures (SX 73-76) were of appellant’s tattooed

arm holding a gun and of a bullet hole in a wall. (RR 22: 45, 47; RR 23: 72;

SX83). Nikki Nance had seen appellant’s gun approximately ten times; appellant

thought having a gun looked “cool.” (RR 22: 95-96). Appellant also bragged to

Nance that he would drive really fast on his motorcycle and that he had outrun the

police in Colorado. (RR 22: 97).

      Kristina “Nikki” Nance testified for the State with a testimonial immunity

agreement. (RR 22: 87). In late 2011 or early 2012, appellant met Nance through

a posting on Craigslist. (RR 22: 89). They used lots of drugs, to-wit: Xanax,

cocaine, acid, mushrooms, and Ecstasy, most of which appellant purchased for

them. (RR 22: 90-91). As Nance’s and appellant’s relationship continued, their

drug usage increased. (RR 22: 101-102). Appellant began using heavier drugs and

mixing them. (RR 22: 102). Nance recalled a time when appellant wanted to find




                                        20
an “eight ball” of cocaine. (RR 22: 92). Appellant tried to get his roommate Davis

to do cocaine, but he refused. (RR 22: 119-120).

       Nance’s and appellant’s friendship ended when she fronted him $600 to

purchase drugs, and he never paid her back even though he made a lot more money

than Nance did and made her late on her rent. (RR 22: 93-94, 95). Appellant once

told Davis that he would kill Nikki Nance if she damaged his car. (RR 22: 132).

Yet, appellant did not seem psychotic or violent to Davis, even when appellant

used drugs. (RR 22: 132-133).

       Appellant seemed intelligent to Davis. (RR 22: 132). Appellant never

discussed any family issues with his mother or father and never lamented a bad

childhood. (RR 22: 133). Appellant told Davis about outrunning the police on his

motorcycle. (RR 22: 129).

       While in the Del Valle jail after his arrest for this capital murder, appellant

met inmate Luis Escalante because Escalante was curious about the jail uniform13

appellant was wearing. (RR 23: 33). Appellant asked Escalante if he had seen the

person on the news who had killed the cop at Walmart. (RR 23: 34). Appellant

showed Escalante a picture of himself from the newspaper, and appellant smirked

and chuckled about the killing. (RR 23: 35). Escalante asked appellant if he had


13
  Escalante explained that persons wearing the orange and white stripes are “high felons,”
persons who committed aggravated crimes or murders. (RR 23: 33).



                                               21
any remorse for the killing or sympathy for his victim, and appellant shook his

head “no.” (RR 23: 36).

       Appellant admitted to Escalante that he grabbed Officer Padron by the neck

and shot him and that he fired several times. (RR 23: 52-53). Appellant claimed

he went to Walmart to get pills “to get his mind right.” (RR 23: 53). He had

planned to rob the Walmart pharmacy but not harm the police officer. (RR 23: 54).

Appellant also told Escalante that Officer Padron told him he was taking him in

because he was intoxicated. (RR 23: 54-55).


Extraneous	  Bad	  Acts	  Committed	  in	  Colorado	  

       On January 25, 2007, Shawn Wycoff of the Colorado State Patrol clocked

appellant going 80 m.p.h. in a 55 m.p.h. speed zone on his “highlighter green”

motorcycle. (RR 23: 8-9. 11). Wycoff attempted to pull over appellant for

speeding, but appellant accelerated and fled, making numerous lane changes and

reaching speeds of 90-95 m.p.h. (RR 23: 9, 14). Wycoff radioed another trooper

for assistance who was able to stop appellant. (RR 23: 10-11). Appellant

presented his driver’s license for identification, but he did not have an endorsement

allowing him to drive a motorcycle. (RR 23: 11). The trooper arrested appellant

for improper endorsement on his license, eluding a police officer, and possession

of marijuana, which the trooper found in appellant’s pants pocket. (RR 23: 12-13).

Appellant admitted that he was out joyriding, racing a friend on the interstate, and


                                               22
he fled from police because he didn’t want to get caught, lose his license, or lose

his motorcycle, which was without plates. (RR 23: 12).

        In April of 2012, Caresa Marino, a patrol officer in Cheyenne, Wyoming,

saw a news report about appellant killing Officer Padron. (RR 23: 19-20).

Marino’s immediate reaction was “wow, I know that kid. He threatened me in the

sixth grade.” (RR 23: 20). Marino was not surprised to see appellant on the news.

(RR 23: 20).

        Marino and appellant attended school together in Parker, Colorado. (RR 23:

21). In November of 1999, appellant threatened Marino when she was playing

soccer with her friends at recess. (RR 23: 22, 24). Totally unprovoked, appellant

ran up to Marino, told her to lock her doors and windows because he was going to

go to her house and rape her. (RR 23: 22). Appellant also called Marino a “bitch”

and a “fucker.” (RR 23: 22). Appellant and his friends claimed he was just joking,

but Marino did not find it funny. (RR 23: 27, 28).


Extraneous	  Bad	  Acts	  and	  Disciplinary	  Violations	  in	  Jail	  

        On May 20, 2012, appellant reported to corrections officer Farial Garrie in

the maximum security section of the Del Valle jail that he had found a bunch of

green and orange pills in the jail dayroom and that he had taken them in a suicide

attempt. (RR 22: 149-151). Appellant was transported to Brackenridge Hospital

for the apparent suicide attempt. (RR 23: 74). The physician’s summary reflected


                                                   23
that appellant claimed to have taken a bag of pills he found taped under a chair.

(RR 23: 74; SX84). The records further reflected that appellant decompensated in

the emergency room and required intubation and mechanical ventilation. (RR 23:

75). But, appellant’s urine and serum drug screens were negative. (RR 23: 75).14

Furthermore, corrections officers had searched the dayroom before allowing

inmates into it, and they had not found any pills. (RR 22: 152-153).

       Corrections officers searched appellant’s cell thereafter and found a strip of

paper with a key to decipher coded messages from appellant. (RR 22: 162-163).

Corrections officers found further evidence that appellant intended to bypass jail

security by sending the coded paper to his mother through correspondence to his

attorney. (RR 22: 163).

       In June of 2012, appellant was housed in a psychiatric observation cell in the

Del Valle jail. (RR 22: 64). On June 3, 2012, corrections officer Dustin Rade

searched appellant’s cell for contraband and found hooch, ingredients for an

intoxicating beverage, hidden behind the toilet. (RR 22: 65-66). Appellant

violated jail rules by possessing the hooch. (RR 22: 67). Officer Rade again found

contraband items in appellant’s cell on August 17, 2012. (RR 22: 68). Officer

Rade found six pills hidden in the window ledge. (RR 22: 68-69). Appellant
14
   During the defense presentation of evidence at the punishment phase, Dr. Harold Scott
testified that, from his review of appellant’s medical records, he believed appellant took an
overdose of Haloperidol, an antipsychotic drug. (RR 25: 168, 173). Haloperidol was the generic
version of Haldol, the most common psychological drug in an institutional setting. (RR 25: 168,
173). Dr. Scott testified that the hospital did not screen for Haldol. (RR 25: 172).

                                              24
violated jail rules by possessing the pills, which could only be prescribed by

medical staff. (RR 22: 70). Appellant also kept in his cell a list with the jailers’

names and their routines and activities. The list of names contained various

descriptions of the officers, e.g., appellant said Officer Rade “equals the devil.”

(RR 22: 81-82).

      In October of 2012, Escalante encountered appellant having a secret talk

with another inmate, Troy Williams, who was housed across from appellant. (RR

23: 36-37, 67). Appellant and Williams admitted to Escalante that they were

planning an escape when appellant was transported for his court hearing in January

of 2013. (RR 23: 36-37, 67). Escalante actually overheard them discussing escape

plans on two different occasions. (RR 23: 38). Williams explained to Escalante

that appellant planned for someone to come to the jail with a gun and start shooting

corrections officers. (RR 23: 37, 38). The day before Escalante testified in this

trial, he overheard appellant telling another inmate that Escalante was not

trustworthy and was a “snitch.” (RR 23: 39).

      On August 6, 2013, Travis County Sheriff’s Deputy Donald MacIntyre

heard a commotion and applause coming from the dayroom. (RR 23: 196). He

looked into the dayroom and saw appellant taking a bow among the inmates. (RR

23: 196). The inmates had just watched a news story on the television regarding

appellant and a court hearing in this capital murder. (RR 23: 196-197). After



                                          25
appellant took his bow, an inmate yelled “fuck the police,” and appellant

acknowledged that inmate by raising his fist in the air. (RR 23: 202). A camera in

the jail captured this event, and the video of it (SX97) was played for the jury. (RR

23: 204).


Appellant’s	  Mail	  and	  Recorded	  Phone	  Conversations	  in	  Jail	  

       Due to the report that appellant planned to overtake a corrections officer to

escape, Austin Police Detective David Fugitt realized that he needed to check

appellant’s phone calls daily for the officers’ safety. (RR 23: 83-84). Detective

Fugitt listened to approximately 16 hours of appellant’s recorded phone

conversations. (RR 23: 84). Fugitt also read appellant’s mail and emails and

watched video of his visitations. (RR 23: 84). Appellant never expressed remorse

for killing Officer Padron in any of those communications. (RR 23: 84). His only

expression of remorse came during his interrogation, and it was initially in regard

to himself. (RR 23: 84).

       The State played SX85, a phone conversation between appellant and his

mother recorded on April 25, 2012, while appellant was in jail. (RR 23: 76-77).

Appellant told his mother that he had been sent to the health services building in

the jail for being depressed. (RR 23: 77). But, he disagreed with the depression

diagnosis because he was joking about being depressed or committing suicide.

(RR 23: 77). Appellant also wrote his sister after a hospital visit. (RR 23: 114;


                                                 26
SX91). Appellant wrote that he was put in the hospital after he joked about no

sharp objects and called jail officials “stupid.” (RR 23: 114).

      On March 10, 2013, appellant had another recorded phone conversation with

his mother. (RR 23: 79; SX86). In that conversation, appellant gave his mother a

code for a secret alphabet so they could bypass security at the jail in regard to their

mail. (RR 23: 79). Appellant had drawn an image of an alien utilizing a shading

technique where the letters of the alphabet were written inside the image. (RR 23:

79-80). Appellant called his mother again on March 31, 2013, and discussed

murderabilia. (RR 23: 81). In another phone conversation with his mother,

appellant said an inmate offered him $30 for his artwork, the most money he knew

of being offered for artwork. (RR 23: 101). So, appellant made a copy of the

artwork to sell “just for the bragging rights.” (RR 23: 101-102).

      Anthony Angel, with the Travis County Sheriff’s Office security threat unit,

copied appellant’s mail at the request of Detective Fugitt. (RR 23: 106).

Appellant primarily wrote letters to his mother, sister, and Feland. (RR 23: 110).

His mother set up a pen pal account for him on meet-an-inmate.com, and he asked

her to make his profile sound “more bad” because people might be looking for

someone “more criminal-ish.” (RR 23: 112). Appellant wrote his mother that he

was at the top of the prison pecking order in relation to crimes committed. (RR 23:

113; SX90). In letters to Feland, appellant said he did not like being in the general



                                          27
prison population because he didn’t particularly get along with inmates or cops

because they were “not [his] type of people.” (RR 23: 115). Appellant reminded

Feland to allow him to run the defense and to not talk to anyone on his legal team

because “they [were] only out for themselves.” (RR 23: 116; SX93). In another

letter, appellant told Feland “not much else going on. Just living the dream. I’m

retired at 25.” (RR 23: 118; SX95). He added a smiley face. (RR 23: 118).

          According to Deputy Angel, coded mail presented security concerns

regarding escape plans or attacks on officers or other inmates. (RR 23: 107).

Inmates who kept notes on the movements of guards in the jail also presented

security concerns regarding escape attempts or assaults on staff. (RR 23: 107).


Inmate	  Classification	  System	  and	  Prison	  “Society”	  

          Stephen Rogers, a retired warden and corrections officer, testified regarding

the prison classification system for inmates. A person sentenced to life without

parole was classified as a G3 and was in the general population. (RR 23: 134). A

G3 classified inmate had all the privileges15 of a minimum security G2 inmate

except that he could not be housed in a dormitory outside the prison but within the

outer fence. (RR 23: 135). The G3 inmate had the same contact with prison staff

and volunteers as a G2 and went to chow and walked the hallways without

handcuffs. (RR 23: 136). The prison provided food, beds, and television to the
15
     These privileges included contact visits and commissary eligibility. (RR 23: 135).


                                                 28
prisoner; radios were available for purchase in the commissary. (RR 23: 190).

Prisoners in the general population were allowed to make phone calls, receive

emails, and have contact with family members. (RR 23: 160, 191). Yet, prisoners

in the general population sometimes attacked, caused serious bodily injury, and/or

killed prison guards. (RR 23: 191). On the other hand, a prisoner under a death

sentence was classified like an administrative segregation prisoner, i.e., he was

confined to his cell 23 hours a day and allowed one hour for recreation. (RR 23:

138).

        Rogers discussed the problem with inmates making weapons in prison with

some prisoners smart enough to make weapons out of “just about anything[.]” (RR

23: 148-154). And, if a prisoner couldn’t make a weapon, he had the opportunity

to obtain one from another inmate. (RR 23: 154). And, prisoners had access to

dangerous items through prison industry. (RR 23: 155).

        Prisoners also found ways to access contraband, with cell phones being the

foremost problem.16 (RR 23: 157). Prisoners often used cell phones to contact

their victims or persons who testified against them. (RR 23: 157). Drugs were

likewise a problem in the prison system and easier to smuggle than cell phones.




16
  One prisoner even managed to access Rogers’ Facebook account even though he was in
permanent lockup. (RR 23: 157).


                                            29
(RR 23: 158). Many prisoners were adept at making alcoholic beverages, called

hooch or chalk. (RR 23: 158-159).

       As a warden, Rogers would have concerns with an inmate who attempted to

communicate with people outside of prison through coded mail. (RR 23: 159).

Such a prisoner presented a threat to correctional officers, other inmates, and even

the public. (RR 23: 160-161). Rogers would also have security concerns about a

prisoner who tracked the activities of correctional officers. (RR 23: 161).

Prisoners inclined to commit acts of violence would have opportunities to commit

acts of violence or kill while in prison. (RR 23: 164). And, prisoners who had

animus toward police officers would have opportunities in prison to hurt them.

(RR 23: 164).


Officer	  Padron’s	  Personal	  and	  Professional	  History	  

       Officer Padron’s older sister, Linda Diaz, testified that Officer Padron

enlisted in the Marine Corps when he was just 17 years old and still in high school.

(RR 23: 210). After service with the Marines, Officer Padron worked as a

corrections officer, first for the Eden Detention Center and then the San Angelo

Police Department. (RR 23: 210). Officer Padron moved to Austin and became

employed with the airport police and then transferred to the Austin Police

Department. (RR 23: 210-211). Killed at age 40, Officer Padron had given more




                                               30
than half his life serving his country and his community and protecting the public.

(RR 23: 211).

        Diaz described her brother as a very honorable man of integrity and

commitment. (RR 23: 211). She described Officer Padron’s first act of bravery as

a rookie police officer when he twice ran into a burning building to save victims.

First, he attempted to save two children, and then he ran back into the house to

save a fellow officer who had not emerged from the burning home. (RR 23: 212).

Although divorced, Officer Padron was a dedicated father to his two young

daughters, aged 6 and 10 at the time of his death. (RR 23: 212). He was even

involved in their school because he loved being around children. (RR 23: 213).

        While working full-time for the San Angelo Police Department, Officer

Padron continued his education, earning degrees in psychology and criminal

justice. (RR 23: 213). He graduated with honors. (RR 23: 213). And, Officer

Padron had a positive impact on his nieces and nephews. (RR 23: 213). One

nephew was following in his footsteps and had enlisted in the Marines. (RR 23:

213).

        Officer Padron was “very caring” and “very loving.” (RR 23: 214). His

daughters missed their “tremendous daddy” time. (RR 23: 214). Officer Padron

was also very close to his parents, especially his father who was not in very good

health. (RR 23: 214). Officer Padron’s parents and siblings attended the trial, and



                                         31
having to hear the testimony was “horrifying” and “almost unbearable.” (RR 23:

214). Diaz could see her parents’ pain every day and testified that “no parent

should have to go through this” and “[h]is little girls shouldn’t have to go through

their life without their father.” (RR 23: 214).


Defense	  Evidence	  at	  the	  Punishment	  Phase	  

       Travis County corrections officer Richard Low had contact with appellant

during his two-year time in the health services building. (RR 24: 10). Deputy Low

described appellant as compliant and respectful to him. (RR 24: 11). But, on

cross-examination, Deputy Low testified that an inmate was not compliant if he

made hooch, hoarded prescription pills, or tracked the movements and activities of

corrections officers. (RR 24: 14-15). All those activities were violations of jail

regulations, as was sending coded messages to civilian persons through legal mail

in the jail. (RR 24: 15). Appellant further violated jail regulations by giving

himself a homemade tattoo. (RR 24: 39). Psychological evidence showed

appellant was capable of following rules if he so chose, but he did not like to be

controlled by other people. (RR 24: 127, 151).

       Dr. James Ascough, employed with the USDA, testified via Skype for the

defense. (RR 24: 43). He met the appellant through a work-study program when

appellant was a student at Colorado State University. (RR 24: 45). Dr. Ascough

described appellant as a very good programmer. (RR 24:49). Appellant had Dr.


                                                32
Ascough had co-authored a chapter in a book entitled Advances in Nitrogen

Management for Water Quality. (RR 24: 53-54). Appellant worked with Dr.

Ascough at the USDA for approximately 18 months, from 2009 to Christmas 2010.

(RR 24: 56). Dr. Ascough encouraged appellant to continue working with him and

to attend graduate school, but appellant wanted to begin working and earn money.

(RR 24: 57-58). Appellant took the job with Hewlett-Packard in Austin, and the

two ceased contact in early to mid 2011. (RR 24: 57-58). Dr. Ascough thought

appellant was a quiet, hardworking, and respectful “kid,” and he was “stunned”

when he heard about appellant killing Officer Padron. (RR 24: 59).

      Cross-examination revealed that Dr. Ascough actually knew very little about

appellant. (RR 24: 66). He did not know that appellant used marijuana and

alcohol daily and that he regularly used cocaine, mushrooms, ecstasy, and acid

during his college career. (RR 24: 65-66). Dr. Ascough was aware that appellant

had a girlfriend, but he didn’t know her name. (RR 24: 65). Appellant told Dr.

Ascough about his motorcycle, that he liked to go fast, and that he eluded police on

it. (RR 24: 67). Appellant was not embarrassed about that. (RR 24: 67).

      Dr. William Carter prepared a psychological study on appellant for the

defense. (RR 24: 78). Dr. Carter twice interviewed appellant in 2014. (RR 24:

83). In early adolescence, appellant began to emotionally withdraw and about age




                                        33
12 he fell into depression. (RR 24: 88, 91-92). Appellant began to experiment

with drugs in middle school to escape his depression. (RR 24: 95-96).

       Appellant avoided social contact, and Dr. Carter described him as

humorless. (RR 24: 96). As a teenager, appellant felt lonely and isolated.17 (RR

24: 101). Dr. Carter thought appellant’s depression probably worsened into his

teenage years, and he felt helpless and suicidal and hated his life. (RR 24: 106).

Yet, appellant was not depressed to the point of psychosis. (RR 24: 118). A

common theme in appellant’s life was his overstatement of his importance by

bragging, pushing limits, or letting others know how smart he was. (RR 24: 102).

       On cross-examination, Dr. Carter confirmed that the people he interviews

have a personal bias to present themselves in a manner in accord with their

perceived best interest. (RR 24: 154). Dr. Carter conceded that it was possible

appellant claimed he was depressed only after meeting with Dr. Carter and

deciding it was to his benefit to be depressed. (RR 24: 162). But, regardless of

one’s depression level, Dr. Carter confirmed that a person would know not to kill a

police officer. (RR 24: 167).

       Appellant’s report to Dr. Carter of his lack of friends was disputed by his

disciplinary records from high school and college. (RR 24: 157-158). The
17
  Cross-examination revealed that appellant had had friends with whom he played guitar and
rode motorcycles. (RR 24: 157). These friends were apparently so well known that appellant
told his mother in letters to use the names of these friends as clues she could insert into his codes.
(RR 24: 157).


                                                 34
disciplinary records indicated appellant acted in concert with others in sneaking

around the halls or out of classes, of using drugs behind Hobby Lobby with his

motorcycle-riding friends, and for showing affection on campus to a girl. (RR 24:

157-158). Appellant’s disciplinary records also reflected assaultive conduct by

him. (RR 24: 159). In one incident, appellant “sucker punched” another boy in the

locker room. (RR 24: 159). The person writing the report was concerned because

appellant showed no remorse for the assault. (RR 24: 159).

       Dr. Carter admitted in cross-examination that appellant displayed

manipulative and controlling behaviors before and after this capital offense. (RR

24: 162-163). Appellant used Nikki Nance to get drugs, and he told Jenna Feland

to not talk to anyone about him, including his lawyers, mitigator, private eye, etc.

until he told her to. (RR 24: 162-164; SX93).

       Appellant told Dr. Carter that he went to the Walmart to steal18 and he took

his gun with him “just in case.” (RR 24: 167). Appellant knew he shot a police

officer, and, by the extent of the injury, he knew the officer was dead. (RR 24:

169). Dr. Carter admitted that appellant lacked empathy. (RR 24: 164). The fact

that appellant planned to profit from this capital murder was disturbing to one of

his psychologists. (RR 25: 132).


18
  Evidence showed appellant had recently received a promotion at work and earned
approximately $65,000 to $70,000 at his job. (RR 24: 180).



                                             35
       The defense also presented Dr. Walter Harrell, a psychologist specializing in

neuropsychology and rehabilitation psychology. (RR 24: 222). Based on

appellant’s self-reported frontal lobe injuries,19 Dr. Harrell thought appellant had

been struggling with depression and sadness his whole life. (RR 24: 249, 254).

Dr. Harrell opined that appellant’s multiple concussive events20 predisposed him to

have struggles with depression, suicidal idealization, and substance abuse. (RR

25:98). Dr. Harrell claimed appellant had a substance abuse disorder that had

been evident since third grade. (RR 24: 255). This testimony, however, was also

based on appellant’s self-report that he began drinking alcohol and smoking

marijuana in third grade; appellant also claimed he did cocaine with his father.

(RR 24: 256).

       Even Dr. Harrell reported that appellant showed a complete lack of remorse

for killing Officer Padron.21 (RR 25: 131-132). Appellant told Dr. Harrell that he

went to Walmart to steal groceries, that he carried a gun, was pursued by an

19
  One such injury resulted from a skateboarding accident when appellant was 14 years old, but
appellant’s brain scan following this accident was normal. (RR 25: 79).
20
  On cross-examination, Dr. Harrell acknowledged that appellant was very intelligent, and he
had no difficutly communicating with him. (RR 25:82-83). He also had to acknowledge that his
assessment of appellant’s frontal lobe injuries was merely an inference based on unsubstantiated
reports of head injuries from appellant. (RR 25: 85-87). In one such report, appellant told Dr.
Harrell of a head injury he sustained when he was 18 months old. Dr. Harrell admitted that at
such a young age, appellant would not have an independent recollection of that event. (RR 25:
85-87).
21
  Appellant’s aunt, who was the County Attorney for Pottawatomie County, Kansas, testified
that appellant had never expressed remorse for killing Officer Padron. (RR 25: 22, 60).



                                              36
officer, and shot him. (RR 25: 102). Dr. Harrell testified that appellant struggled

with impulse control all of his life. (RR 25: 104). But, he thought appellant’s

killing of Officer Padron was a drug-related problem. (RR 25: 105). Appellant

could become dangerous and commit acts of violence in prison if he was under the

influence of alcohol or drugs. (RR 25: 111).

        Dr. Harrell further confirmed on cross-examination that no mitigating

factors of sexual abuse, physical abuse, mental retardation, homelessness, or lack

of food were present in this case. (RR 25: 128-129). Even though appellant

committed various offenses as a juvenile, he never did time in the juvenile system.

(RR 25: 130). Appellant was highly intelligent, had excelled in school, and had

even graduated Colorado State University with honors in a highly technical field.

(RR 25: 129). At the time of this offense, appellant had a good job with a national

company and had no work-related issues. (RR 25: 129-130).

        Psychiatrist Dr. Harold Scott diagnosed appellant with depressive and

addictive problems. (RR 25: 180). Dr. Scott testified appellant was highly

addictive, having used substances since age nine to “obliterate reality” and self-

medicate for his depression. (RR 25: 208-209). Appellant used alcohol, cough

syrup, marijuana, and computer duster (an inhalant) by age thirteen. (RR 25: 208-

209).




                                         37
        On August 26, 2012, corrections officer Stephen Crim found appellant on

top of his bunk with his hands in the air vent. (RR 24: 199-200). Crim searched

appellant’s cell and found torn bedsheets fastened into a noose and a three-foot

long rope. (RR 24: 201). The noose was in the air vent. (RR 24: 201). Just

expressing suicidal feelings would get an inmate transferred to the health services

building in jail. (RR 24: 40). On another occasion, an inmate reported to Crim

that he overheard appellant and another inmate discussing escape plans because

they were tired of being in jail and wanted out. (RR 24: 203). The fellow inmate

planned to overtake a guard, get his keys, and let appellant out of his cell. (RR 24:

203).


State’s	  Rebuttal	  Evidence	  at	  Punishment	  

        In appellant’s phone calls, letters, and visitation, he showed a fascination

with major criminal events that had occurred since this capital murder. (RR 25:

248). He often spoke of the Aurora, Colorado, movie theater shooting, the Sandy

Hook Elementary School shooting, the Boston Marathon bombing, and the DC

capital police shooting. (RR 25: 248-249). Appellant was intrigued with the

number of casualties and the type of weapons used. (RR 25: 249). His mother

once commented that she felt sorry for the shooter in the movie theater massacre in

Colorado. (RR 25: 249).




                                               38
      Dr. Marisa Mauro, a licensed psychologist, interviewed appellant on

February 17, 2014, regarding his depression, family, substance abuse before,

during, and after this offense, prognosis for recovery from depression and

substance abuse, and his adjustment to incarceration. (RR 26: 13-15). Appellant

provided Dr. Mauro with little information and was very emotionless. (RR 26:

16). Dr. Mauro found no evidence of psychoses, and she disagreed with the

diagnosis of major depression, severe and recurrent. (RR 26: 17). Dr. Mauro

opined that appellant’s alleged suicide attempt (the taking of the pills while in jail)

was more of a gesture, and the circumstances of that event raised questions for her

regarding appellant’s intent of taking the pills. (RR 26: 20). After his break up

with Feland, appellant threatened to kill himself with his gun but that was only a

ruse to get her back. (RR 26: 24-25).

      Dr. Mauro did not believe that depression impacted appellant before, during

or after this capital offense. (RR 26: 31). Records also indicated that appellant

said he made the nooses to “mess with” the jail psychiatrist and to get a cell change

to a cell with a window where he could get radio reception. (RR 26: 69).

Appellant displayed shockingly little difficulty adjusting to jail. (RR 26: 19). He

socialized with other inmates, engaged in daily activities with them, and even

called them “friends.” (RR 26: 25-26, 36).




                                          39
        Appellant told Dr. Mauro that he had a “pretty normal” childhood with

difficult issues being his parents’ divorce, few friends, and a sometimes

emotionally abusive mother. (RR 26:22-23). He reported to Dr. Mauro substantial

more drug use than documented in his records. (RR 26: 28). Appellant reported

abusing substances daily and using every classification of drug, from prescription

pills to opium, methadone, street drugs, Ecstasy, Xanax and alcohol. (RR 26: 28).

Despite appellant’s dependency on drugs and alcohol, he did not experience

withdrawal symptoms while in jail. (RR 26: 29). Dr. Mauro knew from her work

in prison systems that inmates had access to narcotics “pretty much all the time”

and alcohol. (RR 26: 70). Dr. Mauro testified that psychiatric medications were

valuable in prison and used for favors. (RR 26: 70).

        Dr. Mauro used a psychopathy checklist to measure future dangerousness,

but she did not use that tool in this case. (RR 26: 37). The psychopathy checklist

defined asocial behaviors or not conforming to laws, violating the rights of others,

having restricted or shallow ranged of affect and a lack of empathy, and being

conning and manipulative. (RR 26: 37).


The	  Verdict	  at	  the	  Punishment	  Phase	  

        The jury found beyond a reasonable doubt that there was a probability that

appellant would commit criminal acts of violence and constitute a continuing threat

to society. (RR 26: 216). The jury also found that there were not sufficient


                                                   40
mitigating circumstances to warrant a sentence of life imprisonment rather than a

death sentence. (RR 26: 216). Appellant requested a jury poll, which revealed the

jury’s answers to the punishment verdict were unanimous. (RR 26: 217-218). In

accordance with the jury’s verdict, the trial judge sentenced appellant to death by

lethal injection. (RR 26: 221).


                          SUMMARY OF THE ARGUMENTS

State’s	  Reply	  to	  Appellant’s	  First	  Point	  of	  Error: Any rational jury could

have found beyond a reasonable doubt that there was a probability that the

appellant would commit criminal acts of violence constituting a continuing threat

to society. The direct evidence of this capital murder and the circumstances

surrounding it were highly probative of appellant’s propensity for future

dangerousness. He entered the Walmart armed with a loaded firearm and

magazine, clearly intending violence. When appellant’s first shot at Officer

Padron did not injure him, appellant placed the muzzle of the gun against Officer

Padron’s neck, fired, and killed him. Appellant also fired at the heads of Walmart

employees who detained him.

       Furthermore, appellant never showed remorse for committing this capital

murder. Instead, he was boastful and cavalier. Appellant gained self-worth from

committing this offense and other criminal acts. He showed a life-long disrespect

for law enforcement and others. He continually committed violations while in jail


                                                 41
and planned a violent escape. Appellant’s escalating drug use and abuse was

considered a factor in his commission of this capital murder, and appellant’s drug

use, which made him dangerous, continued while he was incarcerated.

       The evidence in this case showed that prior to and after committing the

capital murder of Officer Padron appellant engaged in conduct that constituted a

threat to society. The evidence was therefore legally sufficient to sustain the jury’s

verdict at punishment.

State’s	  Reply	  to	  Appellant’s	  Second	  Point	  of	  Error: Appellant’s second point

of error should be overruled because appellant did not suffer any harm from the

trial court’s denial of his challenge for cause to venireperson Reading. The record

reflects that appellant utilized only 14 peremptory challenges in selecting the 12

members of the jury. Appellant utilized his fifteenth peremptory challenge to

strike a venireperson in the pool of alternates. Appellant did not request an

additional peremptory strike because he did not need one. He also did not identify

an objectionable juror who sat on his jury. Under these circumstances, appellant

failed to show he suffered any harm.

       Alternatively, the trial judge did not err in denying appellant’s challenge for

cause to venireperson Reading. The entirety of Reading’s voir dire revealed that

he could follow the law, hold the State to its burden of proof at both phases of trial,

and consider mitigating evidence. Although Reading viewed the death penalty as


                                               42
an appropriate punishment for certain murders, his voir dire reflects that he would

not automatically assess it. The record is sufficient to sustain the trial judge’s

ruling on appellant’s challenge for cause to Reading. Appellant’s second point of

error should be overruled on the merits as well.

State’s	  Reply	  to	  Appellant’s	  Third	  Point	  of	  Error: Appellant failed to

preserve any alleged error for review. Appellant requested a hearing on Dr.

Mauro’s qualifications, and the trial judge granted that request. Appellant

requested to explore the basis of Dr. Mauro’s findings, and the trial judge allowed

that inquiry. There being no adverse rulings, appellant failed to preserve any

alleged error for review. Moreover, appellant had no objection to Dr. Mauro’s

testimony at trial.

       Additionally, the trial judge afforded appellant a proper hearing under Rule

705(b). By its express terms, Rule 705(b) does not authorize inquiry into the

expert’s specific findings. It allows inquiry into the underlying basis of the

expert’s opinion, which the trial judge allowed in this case. The record reflects

that the trial judge complied with the requisites of Rule 705(b), and appellant fails

to show any alleged error.

       Appellant’s third point of error is wholly without merit and should be

overruled.




                                                 43
         STATE’S REPLY TO APPELLANT’S FIRST POINT OF ERROR

         The	  evidence	  was	  legally	  sufficient	  to	  establish	  that	  there	  is	  a	  
         probability	  that	  appellant	  would	  commit	  criminal	  acts	  of	  violence	  
         and	  constitute	  a	  continuing	  threat	  to	  society.	  	  	  
Standard and Scope of Review

         When reviewing the future-dangerousness special issue, the appellate court

views the evidence in the light most favorable to the jury’s finding and determines

whether a rational jury could have found beyond a reasonable doubt that there is a

probability that the appellant would commit criminal acts of violence constituting a

continuing threat to society. Soliz v. State, 432 S.W.3d 895, 901 (Tex.Crim.App.

2014). In this context, “society” includes both the free world and prison society.

Id., citing Druery v. State, 225 S.W.3d 491, 507 (Tex.Crim.App. 2007). The

Court's review is a very limited one. Chambers v. State, 903 S.W.2d 21, 25

(Tex.Crim.App. 1995). The Court's task is to consider all of the record evidence

and reasonable inferences therefrom in the light most favorable to the jury's verdict

and to determine whether, based on that evidence and those inferences, a rational

jury could have found beyond a reasonable doubt the elements of the special issue.

Id.

      The circumstances surrounding the offense, if severe enough, may alone be

sufficient to support an affirmative answer to the future dangerousness special

issue. Freeman v. State, 340 S.W.3d 717, 725 (Tex.Crim.App. 2011). Prior



                                                     44
unadjudicated acts of violence against people and property, prior adjudicated

criminal acts, and habitual drug abuse all constitute evidence of future

dangerousness. Soliz, 432 S.W.3d at 901, citing Wilkerson v. State, 881 S.W.2d

321, 326 (Tex.Crim.App.), cert.denied, 513 U.S. 1060 (1994). Some factors a jury

may consider when determining whether a defendant will pose a continuing threat

to society include the following:

   1. the circumstances of the capital offense, including the defendant’s state of
      mind and whether he was working alone or with other parties;
   2. the calculated nature of the defendant’s acts;
   3. the forethought and deliberateness exhibited by the crime’s execution;
   4. the severity of the prior criminal acts committed by the defendant;
   5. the defendant’s age and personal circumstances at the time of the
      commission of the offense;
   6. whether the defendant was acting under duress or the domination of another
      at the time of the commission of the offense;
   7. psychiatric evidence; and
   8. character evidence.

Devoe v. State, 354 S.W.3d 457, 461-62 (Tex.Crim.App. 2011). This list is not

exclusive. Id. at 462. Further, the circumstances of the offense and the events

surrounding it can be among the most revealing evidence of future dangerousness.

Bell v. State, 938 S.W.2d 35, 41 (Tex.Crim.App. 1996), cert.denied, 522 U.S. 827

(1997).


Application of Law to Facts

      The direct evidence of this capital offense and the circumstances

surrounding it were highly probative evidence of appellant’s future dangerousness.


                                         45
Appellant’s actions exhibited foresight and planning. Appellant entered the

Walmart armed with a loaded weapon and with the intent to shoplift. He took the

loaded weapon “just in case,” clearly anticipating using violence against anyone

who interfered with his criminal endeavor. Appellant loaded the firearm with

hollow point bullets to cause maximum damage to his victim(s). Along with the

loaded firearm, appellant carried a magazine loaded with additional hollow point

bullets, indicating his willingness to shoot and possibly kill multiple victims.

      Appellant, in fact, fired his weapon multiple times. His first shot hit Officer

Padron in his uniform pocket but did not injure Officer Padron because of his

protective vest. Appellant then knowingly placed the gun against Officer Padron’s

neck and fired again, killing him. As Walmart employees tried to subdue

appellant, he fired again, almost shooting both LeMere and Jordy in their heads.

Appellant killed Officer Padron and attempted to kill Walmart employees over a

mere $56.90 of shoplifted groceries. (SX78).

      The jury could further infer appellant’s propensity for future dangerousness

from evidence showing a lack of remorse. Estrada v. State, 313 S.W.3d 274, 285

(Tex.Crim.App. 2010). Appellant never expressed or showed remorse for

committing this capital murder, and he had no sympathy for his victim. Rather, he

was repeatedly cavalier and boastful. Appellant laughed after killing Officer

Padron and smiled and winked at arresting officers. In jail, appellant enjoyed



                                          46
sharing news stories about his capital murder with fellow inmates, took a bow in

response to their applause, and pumped his fist in response to a disparaging remark

regarding the police. Even appellant’s own witnesses22 testified he never

expressed remorse for this capital murder.

          Appellant’s propensity for future dangerousness was supported by evidence

of his long-term disrespect for law enforcement. While in jail, appellant tracked

the activities and movements of corrections officers in preparation for a violent

escape from jail, which involved shooting law enforcement officers. He

committed repeated violations of jail regulations and created a code to bypass jail

security with his mail. Evidence established that inmates who communicated via

coded mail presented a security threat to corrections officers, other inmates, and

even the public. In just the four months preceding this capital murder, appellant

continually committed criminal offenses, including traffic violations, possession of

marijuana and other controlled substances, possession of drug paraphernalia, DWI,

and excessive drug usage. Barley v. State, 906 S.W.2d 27, 30-31 (Tex.Crim.App.

1995) (explaining that even a criminal history comprised offenses that are not

overtly violent can lead a reasonable juror to find a probability of future

dangerousness when the offenses show an escalating and ongoing pattern of

disrespect and continued violations of law).

22
     His aunt and hired psychologist Dr. Harrell.


                                                    47
      Some of the most disturbing evidence of appellant’s future dangerousness

was that he gained his self-worth from his criminal activity, in spite of being highly

intelligent and having had a well-paying job. Appellant told his mother that he was

at the top of the prison pecking order. The night of this capital murder, appellant

wanted to commit a robbery, telling his roommate that he had gotten away with

“worse shit.” Appellant saw this capital murder as an opportunity for financial

gain by selling his story, which even his defense expert found disturbing. He

asked his mother about murderabilia and to post him on meet-an-inmate.com,

describing him as “bad” as possible. Appellant thought he was “cool” for owning

a firearm, and he bragged about eluding police on his motorcycle. And, appellant

exhibited a character for violence. He was obsessed with mass murder and other

violent tragedies such as the movie theater massacre in Colorado, the Sandy Hook

Elementary murders, and the Boston Marathon bombing.

      Appellant further displayed a lack of respect for others, even his friends. He

was manipulative, using Nikki Nance for drugs and money, despite his high-paying

job. Appellant threatened to commit suicide with his firearm as a ruse to get

Feland back as his girlfriend. He was polite with police officers and pleaded that

he wanted to be a “productive member of society” to get out of tickets or arrests.

He feigned suicide attempts while incarcerated to get better housing.




                                         48
      The substantial psychiatric evidence in this case supported the jury’s

determination that appellant constituted a continuing threat to society. Appellant

did not like to be controlled by others and lacked empathy. He had the capacity to

change, but chose not to. Appellant’s mental health experts diagnosed appellant

with major depression, but also considered his depression a factor in his

commission of crime. The jury could infer from the evidence regarding his

personality that his character traits were consistent with the factors on the

psychopathy checklist for future dangerousness.

      The jury could reasonably believe that appellant’s drug use made him

dangerous. Williams v. State, 273 S.W.3d 200, 214 (Tex.Crim.App. 2008);

Wilkerson, 881 S.W.2d at 326, (habitual drug use constitutes evidence of future

dangerousness). Although intoxicated on Xanax the night he committed capital

murder, appellant planned his criminal activities at Walmart, went to the store

intending to steal from the pharmacy, armed himself with a loaded firearm and

magazine, and was fully aware that he had murdered a police officer. Defense

witness Dr. Harrell thought appellant’s killing of Officer Padron was a drug-related

problem, and he testified that appellant could become dangerous and commit acts

of violence in prison if he were under the influence of drugs or alcohol. The State

presented evidence that prison inmates had regular access to drugs and alcohol.

And, there was evidence that psychiatric medications were valuable in prison and



                                          49
could be used for favors. Despite appellant’s escalating drug use prior to this

capital murder, he did not experience withdrawal symptoms in jail, suggesting he

continued to abuse substances. Indeed, appellant made “hooch” while incarcerated

and hoarded pills in his cell.

       Appellant contends the evidence in this case is insufficient like the evidence

in Berry, Beltran, and Huffman.23 Appellant’s brief at p. 17. But, these cases are

easily distinguishable on their facts. In Berry, the evidence showed the defendant

was dangerous “only to those of her own children” and there was a very low

probability that she would have any more children if sentenced to life in prison.

233 S.W.3d at 864. Additionally, the State in that case invited the jury to utilize an

improper standard in its consideration of future dangerousness by asking the jury

to assume that the defendant would be living in the free world. Id. at 863.24 In

Beltran, the Court determined the facts of that robbery-murder alone were

insufficient to sustain the future dangerousness issue, and Beltran’s prior criminal

history reflected mostly alcohol-related offenses. 728 S.W.2d 389-90. Unlike

appellant’s case, no psychiatric evidence was introduced in Beltran. 728 S.W.2d at

390. In Huffman, there was no evidence that the defendant originally intended

23
  Berry v. State, 233 S.W.3d 847 (Tex.Crim.App. 2007), Beltran v. State, 728 S.W.2d 382
(Tex.Crim.App. 1987), and Huffman v. State, 746 S.W.2d 212 (Tex.Crim.App. 1988).
24
  Also, it is notable that Berry was a 5-4 decision with the dissent arguing that the majority
utilized an improper standard of review on the future dangerousness sufficiency question. 233
S.W.3d at 865.



                                               50
murder or violence in committing the robbery-murder. 746 S.W.2d at 225.

Huffman committed the offense while highly intoxicated and had no memory of it.

He had only one disciplinary violation while incarcerated and that was shortly after

his arrest because he did not know where he was or why he was there. Id. at 224.

And, the State presented no psychiatric evidence at punishment. Id. at 225.

      The evidence in this case showed that prior to committing this capital

murder appellant continually engaged in conduct that constituted a threat to

society. The killing of Officer Padron was the culmination of a life-long escalating

pattern of violations of the law, disrespect for law enforcement officers and other

citizens, including friends, escalating drug use and abuse, threatened violence, and

depression. The evidence at trial showed appellant continued to engage in such

behaviors even after being incarcerated for this capital murder. Based on all the

evidence, the jury’s finding that there was a probability that appellant would

commit criminal acts of violence and constitute a continuing threat to society was

rational. The evidence was therefore legally sufficient to sustain the jury’s answer

on the punishment issue. Appellant’s first point of error should be overruled.




                                         51
    STATE’S REPLY TO APPELLANT’S SECOND POINT OF ERROR

      Appellant	  did	  not	  suffer	  harm	  as	  a	  result	  of	  the	  trial	  court’s	  denial	  
      of	  his	  challenge	  for	  cause	  to	  venireperson	  Reading.	  	  Alternatively,	  
      the	  trial	  judge	  did	  not	  err	  in	  denying	  appellant’s	  challenge	  for	  
      cause	  to	  venireperson	  Reading.	  

      The issue is whether the trial court’s ruling on appellant’s challenge for

cause to Reading effectively deprived appellant of one of his statutorily-given

peremptory challenges. Gonzales v. State, 353 S.W.3d 826, 831 (Tex.Crim.App.

2011). Before harm can be shown on the record with respect to a trial court’s

denial of a defense challenge for cause, a defendant must (1) use a peremptory

strike on the challenged prospective juror; (2) exhaust his peremptory challenges;

and (3) request an additional peremptory strike to use upon a specifically identified

objectionable venire member who, because the extra strike was denied, actually sat

on the jury. Davis v. State, 313 S.W.3d 317, 343 (Tex.Crim.App. 2010). In a

death penalty case with only one defendant, that defendant is entitled to fifteen

peremptory challenges. Art. 35.15(a), V.A.C.C.P.


Appellant Cannot Show Harm

      The State had no objections to Reading as a juror. (RR 11: 205). Appellant

objected to Reading on the basis that he had a bias toward the death penalty and

that he would require the defense to present mitigating evidence. (RR 11: 205).

The trial judge denied appellant’s challenge to Reading, and appellant exercised a

peremptory challenge against Reading. (RR 11: 205; RR 16: 123-124). The

                                                       52
defense utilized only 14 peremptory challenges in selecting the 12 members of the

jury. (RR 16: 132). The defense used its fifteenth peremptory challenge to strike a

venireperson from the pool of alternate jurors. (RR 11: 134). Cf. Comeaux v.

State, 445 S.W.3d 745, 751 (Tex.Crim.App. 2014) (defendant who chooses to use

peremptory strike outside strike zone may not complain about harm concerning

juror within strike zone who could have been removed instead).

      Appellant did not request an additional peremptory strike because it was not

needed. (RR 11: 133-134). Consequently, appellant did not identify an

objectionable juror on his jury because none sat on his jury. And, appellant did not

claim that he would have struck an alleged objectionable juror if he had had an

additional peremptory strike to use. Under these circumstances, appellant fails to

show he suffered any harm from the trial court’s denial of his challenge for cause.

Comeaux, 445 S.W.3d at 750. Appellant’s second point of error should be

overruled on this basis.


Alternatively, the Trial Judge Did Not Err in Denying the Challenge for
Cause

      Although recognizing that he cannot show harm because he did not use all of

his peremptory challenges, appellant’s brief at pp. 18-19, appellant nevertheless

contends that the trial judge erred in denying his challenge for cause to

venireperson Reading. Appellant contends Reading was challengeable for cause



                                         53
for his bias in favor of the death penalty and for his need for the defense to present

mitigating evidence.

Facts Relevant to the Challenge for Cause

      During the State’s voir dire examination, Reading indicated that his views

regarding the death penalty would not affect his ability to listen to the evidence and

the law in this case as given by the trial judge and to decide the punishment issues.

(RR 11: 166). As for murder, Reading affirmatively noted that he could consider

the entire range of punishment, and he, in fact, could envision situations where the

minimum and maximum punishments would be appropriate. (RR 11: 168).

Reading agreed with the prosecution that murder by itself was never sufficient for

the death penalty. (RR 11: 170). Reading believed capital punishment was

appropriate for the capital murder of a police officer. (RR 11: 171).

      Reading further understood that there were only two punishment options in a

capital murder case, and he was okay with that. (RR 11: 171-172). Reading could

“absolutely” hold the State to its burden of proof of beyond a reasonable doubt and

not put any burden on the defense. (RR 11: 172). Reading understood, and

agreed, that he should find the defendant “not guilty” if the State failed in its

burden of proof and even if the defendant presented no evidence. (RR 11: 173).

      Reading had a basic understanding of the punishment phase process in a

capital murder case regarding the special issues. (RR 11: 173-174). The



                                          54
prosecutor discussed the factors in the first punishment issue, viz: probability,

criminal acts of violence, and society. (RR 11: 175-179). The record reflects

Reading understood the issues related to those factors, the State’s continued burden

of proof on those issues, and that the defendant did not have to do anything. (RR

11: 175-176).

      As for the mitigation issue, Reading indicated he was open to considering

that there could be mitigating evidence sufficient to choose life without parole as

an appropriate punishment. (RR 11: 181). On the second punishment issue,

Reading could consider any mitigating evidence presented, the circumstances of

the offense, the defendant’s character and background, and the defendant’s moral

culpability. (RR 11: 183-186). The prosecutor also discussed other potential

mitigating factors with Reading. (RR 11: 186-188). Reading was willing to wait

and hear all the evidence before making any decision about the punishment issues.

(RR 11: 188).

      The defense then questioned Reading. In response to a hypothetical

regarding a capital murder of a police officer, Reading stated he would lean toward

the death penalty as an appropriate punishment where there were no defensive

issues at guilt/innocence and where the jury has already determined the future

dangerousness issue against the defendant. (RR 11: 190). Yet, Reading confirmed

that he could consider mitigating evidence. (RR 11: 191). When asked by defense



                                          55
counsel if he would want the defense to bring evidence to convince him that death

was not the appropriate punishment, Reading answered affirmatively. (RR 11:

191).

        Further, regarding mental illness as mitigating evidence, Reading indicated

that killing a police officer was a serious offense and that it would be difficult to

not vote for the death penalty where such a murder was knowingly committed.

(RR 11: 193). When asked by defense counsel to place himself on a spectrum of

the death penalty being reserved for the “worst of the worst” to being appropriate

for any murder, Reading tended to fall more toward believing the death penalty

was appropriate for any knowing and intentional murder. (RR 11: 196-197).

        Reading confirmed that he could “absolutely” fairly and impartially consider

all the evidence in this case, even in the punishment phase. (RR 11: 197). Reading

clarified that he would not automatically lean toward the death penalty after

finding a person guilty of the capital murder of a police officer, as suggested by

defense counsel’s hypothetical, which had confused Reading. (RR 11: 197-198).

After again discussing the defense hypothetical, Reading confirmed that he would

lean toward the death penalty as the appropriate punishment where several factors

were present, to-wit: the defendant intentionally killed a police officer in the line

of duty, there were no defensive issues and no mental illness issues, and the jury




                                           56
had already found that the defendant would constitute a continuing threat to

society. (RR 11: 199).

       Finally, as to the Fifth Amendment right not to testify, Reading indicated

that he would not hold it against the defendant if he did not testify, but it would be

a question in his mind; i.e., why not testify and defend yourself if you are

innocent.25 (RR 11: 200). But, Reading indicated that he would do his best to put

that out of his mind if instructed by the trial judge to not consider it during

deliberations. (RR 11: 200-201). Reading confirmed for the trial judge, after

having the instruction read to him, that he could follow the court’s instruction.

(RR 11: 201-202).

       The trial judge then questioned Reading. The judge determined that

Reading could “absolutely” consider the mitigation issue after finding that the

defendant would be a continuing threat to society. (RR 11: 202-203). The judge in

fact noted that the jury only considered the second punishment issue if it had found

the first punishment in the affirmative, i.e. that the defendant would be a

continuing threat to society. (RR 11: 202). Reading confirmed that he could

consider mitigating evidence and vote for a sentence less than death if warranted

by the mitigating circumstances. (RR 11: 203).


25
 Appellant does not contend on appeal that Reading was challengeable for cause on this basis.
And, indeed he was not, given that he confirmed he could follow the law. (RR 11: 201-202).


                                              57
      The State had no objections to Reading as a juror. (RR 11: 205). Appellant

objected to Reading on the basis that he had a bias toward the death penalty and

that he would require the defense to present mitigating evidence. (RR 11: 205).

The trial judge denied appellant’s challenge to Reading, and appellant exercised a

peremptory challenge against Reading. (RR 11: 205; RR 16: 123-124).

Standard of Review and Applicable Law

      The appellate court looks at the entire record of voir dire to determine if the

evidence is sufficient to support the court’s ruling on a challenge for cause.

Gonzales, 353 S.W.3d at 831. The appellate court affords great deference to the

trial court’s ruling because the trial judge is present to observe the demeanor of the

venireperson and to listen to his tone of voice. Id., citing Feldman v. State, 71

S.W.3d 738, 744 (Tex.Crim.App. 2002). Particular deference is afforded when the

venireperson’s answers are vacillating, unclear, or contradictory. Davis, 313

S.W.3d at 344. The appellate court will reverse a trial court’s ruling on a challenge

for cause only if a clear abuse of discretion is evident. Gonzales, 353 S.W.3d at

831, citing Davis, 313 S.W.3d at 344.

      A venireperson is subject to a challenge for cause if he has a bias or

prejudice against the defendant or against the law upon which either the State or

the defense is entitled to rely. Art. 35.16(b)(3), (c)(2), V.A.C.C.P.; Gardner v.

State, 306 S.W.3d 274, 295 (Tex.Crim.App. 2009). The test is whether a



                                          58
venireperson’s bias or prejudice would substantially impair his “ability to carry out

his oath and instructions in accordance with the law.” Gonzales, 353 S.W.3d at

831-32, quoting Feldman, 71 S.W.3d at 744. The proponent of the challenge for

cause must establish that the challenge was proper by showing that the

venireperson understood the requirements of the law and could not sufficiently

overcome his prejudice to follow the law. Gonzales, 353 S.W.3d at 832. Before a

venireperson may be excused for cause on that basis, the law must be explained to

him, and he must be asked whether he can follow that law, regardless of his

personal views. Feldman, 71 S.W.3d at 744.

Application of Law to Facts

       Viewing the entirety of Reading’s voir dire examination, it is clear that the

trial court did not abuse its discretion in denying appellant’s challenge for cause to

Reading. Reading did not display a determination to automatically vote for the

death penalty, as appellant contends.26 Appellant errs in relying on only a portion

of Reading’s voir dire to support his argument.

       Reading agreed that capital punishment was an appropriate punishment for

the intentional murder of a police officer, but he repeatedly confirmed that he


26
  Appellant also argues in his brief that because Reading had a bias toward the death penalty, he
lowered the State’s burden of proof. Appellant’s brief at p. 21. Appellant did not make this
argument regarding the burden of proof in the trial court, so that argument is not preserved for
appellate review. Tex.R.App.Proc. 33.1. Moreover, Reading steadfastly maintained that he
would hold the State to its burden of proof. See (RR 11: 172-173, 175-176).


                                               59
could hold the State to its burden of proof on the punishment issues, consider any

mitigating evidence, and follow the court’s instructions. While, in one point of his

voir dire, Reading stated that he would vote for the death penalty for the knowing

murder of a police officer, that answer was in response to a hypothetical that

confused Reading. See (RR 11: 197-198). After again discussing the defense

hypothetical, Reading confirmed that he would lean toward the death penalty as the

appropriate punishment where several factors were present, viz: the defendant

intentionally killed a police officer in the line of duty, there were no defensive

issues and no mental illness issues, and the jury had already found that the

defendant would constitute a continuing threat to society. (RR 11: 199). But, as

his voir dire indicates, he would only “lean” toward the death penalty; it was not an

“automatic” assessment of death. Reading’s voir dire reflected that he deemed

capital murder an “appropriate” punishment, not an “automatic” punishment.

      Furthermore, Reading’s voir dire reflects that he understood and fully

accepted the State’s burden of proof at guilt/innocence and on the punishment

issues. Reading confirmed he could “absolutely” hold the State to its burden of

proof of beyond a reasonable doubt and not put any burden on the defense. (RR

11: 172). Reading understood, and agreed, that he should find the defendant “not

guilty” if the State failed in its burden of proof, even if the defendant presented no

evidence. (RR 11: 172-173). As for the factors relevant to the first punishment



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issue, Reading understood the State’s continued burden of proof on those issues

and that the defendant had no burden with regard to that issue. (RR 11: 175-176).

      The State acknowledges that Reading answered affirmatively in response to

defense counsel’s question “you would want the Defense to bring you -- bring you

some evidence to convince you that death is not the appropriate sentence, correct?”

(RR 11: 191). Yet, this was an isolated portion of Reading’s voir dire, and defense

counsel had not explained the burden of proof to Reading prior to this question;

nor had the defense asked Reading whether he could follow the law once properly

explained to him. Gonzales, 353 S.W.3d at 832; Feldman, 71 S.W.3d at 744.

Thus, Reading was not challengeable for cause based on that single response.

      Appellant’s second point of error is without merit and should be overruled.


     STATE’S REPLY TO APPELLANT’S THIRD POINT OF ERROR

      Appellant	  failed	  to	  preserve	  any	  alleged	  error	  for	  review	  because	  
      there	  was	  no	  adverse	  ruling.	  	  Alternatively,	  the	  trial	  court	  did	  not	  
      abuse	  its	  discretion	  in	  limiting	  the	  voir	  dire	  hearing	  to	  the	  expert’s	  
      qualifications	  and	  the	  basis	  of	  her	  findings.	  

Relevant Facts

      Prior to Dr. Mauro testifying for the State in rebuttal at the punishment

phase, appellant requested and was granted a hearing on her qualifications. (RR

26: 6). The State questioned Dr. Mauro about her educational and professional

background. (RR 26: 6-8). Then, on his voir dire examination, appellant asked Dr.



                                                     61
Mauro to summarize her findings regarding him. (RR 26: 8). The trial judge

interjected that the voir dire was to be on Dr. Mauro’s qualifications, and appellant

agreed. (RR 26: 8-9). Appellant stated that he might want to suppress some of Dr.

Mauro’s findings, and he contended he had a right to question the scientific basis

for her findings. (RR 26: 9). The trial judge confirmed that appellant had the right

to question Dr. Mauro about the basis of her findings and her expertise, but he did

not have the right to a hearing as to her specific findings. (RR 26: 9). Appellant

requested the opportunity to check the rule regarding his right, which the trial

judge allowed. (RR 26: 9). The record reflects defense counsel conferred,

proffered no further argument or objection, and then proceeded to question Dr.

Mauro about the basis for her findings. (RR 26: 10). After briefly questioning Dr.

Mauro, appellant stated he had no objection to her testimony. (RR 26: 11).


Appellant Failed to Preserve Any Alleged Error for Review

      Appellant initially requested a hearing outside the jury’s presence on Dr.

Mauro’s qualifications, and the trial judge granted him that hearing. (RR 26: 6).

When appellant asked Dr. Mauro about her specific findings, the trial judge

interjected that the purpose of the hearing was to examine Dr. Mauro’s

qualifications. (RR 26: 8). Appellant agreed. (RR 26: 9). But, appellant

contended he had “the right to question whether there is a scientific basis to her




                                         62
findings prior to her testifying about those findings.” 27 (RR 26: 9). The trial judge

agreed that appellant could ask Dr. Mauro about the basis of her findings but

without going into her specific findings. (RR 26: 9). Appellant requested to check

the rule, which the trial judge allowed. (RR 26: 9). Appellant proceeded with the

hearing without any further objection or request to query Dr. Mauro on her specific

findings. There being no adverse rulings, appellant failed to present any alleged

error for review. Tex.R.App.Proc. 33.1(a); Fuller v. State, 253 S.W.3d 220, 232

(Tex.Crim.App. 2008), cert.denied, 555 U.S. 1105 (2009). Moreover, appellant

had no objection to Dr. Mauro’s testimony at trial. Therefore, no alleged error is

preserved for review. Tex.R.App.Proc. 33.1. Appellant’s third point of error

should be overruled on procedural default grounds.


The Trial Judge Afforded Appellant a Proper Rule 705(b) Hearing

       Texas Rule of Evidence 705(b) provides:

       Voir Dire. Prior to the expert giving the expert’s opinion or disclosing the
       underlying facts or data, a party against whom the opinion is offered upon
       request in a criminal case shall, or in a civil case may, be permitted to
       conduct a voir dire examination directed to the underlying facts or data upon
       which the opinion is based. This examination shall be conducted out of the
       hearing of the jury.

Under this rule, a defendant is entitled upon a timely request to conduct a voir dire

examination directed to the underlying facts or data upon which the opinion of an

27
  A request to take a witness on voir dire to prove up her expert qualifications does not
constitute a request for a Rule 705(b) hearing to inquire into the “underlying facts or data” of the
expert’s opinion. Jenkins v. State, 912 S.W.2d 793, 814 (Tex.Crim.App. 1995) (op. on reh’g.).

                                                 63
expert witness is based. Alba v. State, 905 S.W.2d 581, 587 (Tex.Crim.App.

1995), cert.denied, 516 U.S. 1077 (1996). The trial court must allow this

examination to be conducted outside the hearing of the jury and prior to the expert

testifying to her opinion before the jury. Id. at 587-88. The purpose of Rule

705(b) is to give defense counsel the “opportunity to determine the foundation of

the expert’s opinion without fear of eliciting damaging hearsay or other

inadmissible evidence in the jury’s presence.” Id. at 588, citing Goss v. State, 826

S.W.2d 162, 168 (Tex.Crim.App. 1992), cert.denied, 113 S.Ct. 3035 (1993).

      Appellant contends the trial court erred in not allowing him to question Dr.

Mauro about her specific findings in the voir dire hearing on her qualifications. By

its express terms, Rule 705(b) does not authorize inquiry into the expert’s specific

findings. It allows inquiry into the underlying basis of the expert’s opinion, which

the trial judge allowed in this case. The record reflects that the trial judge

complied with the requisites of Rule 705(b), and appellant fails to show any

alleged error.

      Appellant’s third point of error is wholly without merit and should be

overruled.




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                                      PRAYER

      WHEREFORE, PREMISES CONSIDERED, the State prays this Court to

overrule the appellant’s points of error and to affirm the trial court’s judgment.

                                                Respectfully submitted,

                                                ROSEMARY LEHMBERG
                                                District Attorney
                                                Travis County, Texas


                                                /s/ Lisa Stewart
                                                Lisa Stewart
                                                Assistant District Attorney
                                                State Bar No. 06022700
                                                P.O. Box 1748
                                                Austin, Texas 78767
                                                Lisa.Stewart@traviscountytx.gov
                                                AppellateTCDA@traviscountytx.gov
                                                (512) 854-9400
                                                Fax No. 854-4810

                       CERTIFICATE OF COMPLIANCE

      Pursuant to Texas Rule of Appellate Procedure 9.4(i)(2)(A), the State

certifies that the length of this brief is 14,078 words. The State also certifies,

pursuant to Texas Rule of Appellate Procedure 9.4(e), a conventional typeface 14-

point was used to generate this brief.

                                                /s/ Lisa Stewart
                                                Lisa Stewart
                                                Assistant District Attorney


                                           65
                          CERTIFICATE OF SERVICE

      This is to certify that the above State's brief was sent, via U.S. mail, email,

facsimile, or electronically through the electronic filing manager, to the appellant’s

attorney on appeal, Ariel Payan, Attorney at Law, 1012 Rio Grande, Austin, Texas

78701; Honorable Lisa C. McMinn, State Prosecuting Attorney, P.O. Box 13046,

Austin, Texas 78711; and appellant’s writ of habeas corpus attorney, Brad

Levenson, Office of Capital Writs, 1033 La Posada Drive, Suite 374, Austin, Texas

78752-3824, on this 20th day of July, 2015.



                                                     /s/ Lisa Stewart
                                                     Lisa Stewart
                                                     Assistant District Attorney




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