                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-16-00348-CR

LAWSON ABRAM,
                                                          Appellant
v.

THE STATE OF TEXAS,
                                                          Appellee



                           From the 87th District Court
                             Freestone County, Texas
                            Trial Court No. 15-067CR


                          MEMORANDUM OPINION

      Appellant Lawson Abram was convicted by a jury of capital murder in the death

of Douglas Carr Hurst. Abram received an automatic life sentence without the possibility

of parole after the State elected not to seek the death penalty. In four issues, Abram

challenges his conviction and sentence. We affirm.
                                             Background

        Amber Halford,1 Hurst’s niece, and Dustin Sanoja, Hurst’s nephew, conspired

with Joshua “J.D.” Mulkey to burglarize Hurst’s residence in Teague, Texas in order to

steal firearms and other valuables. Hurst was out of town with a number of family

members celebrating his recent marriage. The burglary was discovered on Sunday March

8, 2015 by Hurst’s step-daughter, who was checking on the house and feeding the dogs

while the family was out of town. The burglars shoved through a set of French doors and

kicked in the combination-secured door to the master bedroom where Hurst stored his

large gun collection. A number of firearms were stolen, including a Glock .357 caliber

handgun with a grip-controlled laser site.

        Hurst’s step-daughter called to inform him of the burglary. Hurst left Galveston

earlier than originally planned in order to secure his house after the break-in. The French

doors through which the burglars entered did not lock properly and could be opened

with a strong push, even with the deadbolt engaged. After arriving at his residence,

Hurst placed a stool with glassware on top in front of the French doors to alert him in the

event of another break-in. Some time after 1:00 a.m. on March 9, J.D., accompanied by

Abram and Abram’s cousin, OJarian McClenon (“O.J.”),2 broke into Hurst’s home



1
 Halford was convicted of capital murder in a separate trial for her participation in the burglary and
subsequent murder and also received a life sentence. See Halford v. State, No. 10-16-00358-CR, 2017 WL
4079644 (Tex. App.—Waco Sept. 13, 2017, pet. ref’d).

2
 The record contains a variety of spellings for McClenon’s first name. We use the spelling used by
McClenon in his unsworn declaration attached to Abram’s amended motion for new trial.

McClenon pled guilty to murder for his participation in Hurst’s death and was sentenced to forty years in
prison.

Abram v. State                                                                                    Page 2
through the French doors. J.D. and Hurst exchanged gunfire, and both were shot. Abram

and O.J. fled. J.D. ran from the residence, collapsing and dying in Hurst’s back yard. The

.357 Glock stolen in the burglary the night before was beside J.D.’s body. Hurst was able

to call 9-1-1, and he was transported by ambulance to a hospital in Waco. Hurst

succumbed to his injuries a few days later. During questioning by law enforcement,

Abram confessed his participation in the burglary.

                                             Issues

       Abram presents the following points of error:

       (1)       The trial court abused its discretion in denying Abram’s motion to
                 suppress his statements that were made to law enforcement in
                 violation of article 38.22 of the Code of Criminal Procedure and the
                 Fifth Amendment to the United States Constitution and his motion
                 to suppress the evidence seized from his cell phone.

       (2)       The evidence is legally and factually insufficient to convict Abram of
                 capital murder.

       (3)       The trial judge erred in denying Abram’s request for a continuance
                 to allow Dr. Phillip Taft to testify; and in denying Abram’s motion
                 for a new trial to allow O.J. to testify on Abram’s behalf in violation
                 of Abram’s Sixth Amendment right to call witnesses and to rebut
                 evidence presented by the prosecution.

       (4)       Section 19.03 of the Penal Code, which allows the imposition of life
                 without the possibility of parole, is unconstitutional as it precluded
                 Abram from presenting mitigating evidence in violation of Abram’s
                 right to due process and right to not be subjected to cruel and
                 unusual punishment under both the U.S. and Texas Constitutions.

                                           Discussion

       A. Motions to Suppress. In his first issue, Abram argues that the trial court erred

in denying his motions to suppress. Abram asserts that the oral statement he gave to law


Abram v. State                                                                             Page 3
enforcement, in which he confessed to his role in the offense, and the evidence seized

from his cell phone should be suppressed because: (1) Abram was in custody for

purposes of article 38.22; (2) the Miranda warning given was ineffective because it

occurred in the middle of Abram’s questioning and was without curative measures; (3)

Abram’s confession was not voluntary because it was the result of coercive and deceptive

actions and improper inducements; (4) Abram did not expressly waive his rights under

Miranda or 38.22; and (5) Abram’s cell phone was searched without a warrant or his

consent.

                 1. Standard of Review. We review a trial court's ruling on a motion to

suppress evidence under a bifurcated standard of review. Valtierra v. State, 310 S.W.3d

442, 447 (Tex. Crim. App. 2010); Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim. App.

2007). In reviewing the trial court's decision, we do not engage in our own factual review.

Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990); Best v. State, 118 S.W.3d 857,

861 (Tex. App.—Fort Worth 2003, no pet.). The trial judge is the sole trier of fact and

judge of the credibility of the witnesses and the weight to be given their testimony. Wiede

v. State, 214 S.W.3d 17, 24–25 (Tex. Crim. App. 2007); State v. Ross, 32 S.W.3d 853, 855 (Tex.

Crim. App. 2000). Therefore, we give almost total deference to the trial court's rulings on

(1) questions of historical fact, even if the trial court's determination of those facts was

not based on an evaluation of credibility and demeanor; and (2) application-of-law-to-

fact questions that turn on an evaluation of credibility and demeanor. Amador, 221 S.W.3d

at 673; Montanez v. State, 195 S.W.3d 101, 108–09 (Tex. Crim. App. 2006); Johnson v. State,

68 S.W.3d 644, 652–53 (Tex. Crim. App. 2002). But when application-of-law-to-fact

Abram v. State                                                                          Page 4
questions do not turn on the credibility and demeanor of the witnesses, we review the

trial court's rulings on those questions de novo. Amador, 221 S.W.3d at 673; Johnson, 68

S.W.3d at 652–53.

                 2. Findings of Fact and Conclusions of Law. After an evidentiary hearing

on Abram’s motion to suppress his oral statements, the trial court made the following

findings of fact and conclusions of law:

             1.     On March 9, 2015, Freestone County Sheriff’s Deputy Clayton
       Aldrich, while investigating a shooting that left one person dead (J.D.
       Mulkey), and the other in critical condition (Doug Hurst), was advised by
       witnesses that Defendant had been with J.D. Mulkey the evening before the
       shooting.

               2.    That Deputy Aldridge [sic] went to the home of Defendant to
       see if he would be willing to give a statement. That Defendant agreed to go
       with Deputy Aldridge [sic]. That Defendant was not placed under arrest or
       restrained by Deputy Aldrich. Defendant voluntarily left his home and
       entered Deputy Aldrich’s vehicle and went to the Teague Municipal
       building. Defendant voluntarily went into said building with Deputy
       Aldrich.

              3.     Defendant was interviewed by Texas Ranger Patrick Pena in
       a room at said building. At the time of the interview the Defendant was not
       handcuffed or restrained in any way. Defendant was not told he could
       leave and likewise was not told he had to remain. Defendant voluntarily
       agreed to give Patrick Pena a statement. Initially, the Defendant received
       no Miranda admonishments or admonishments set out in Article 38.22
       Section 2 of the Texas Code of Criminal Procedure. However, this Court
       concludes that at the time of the initial interview the Defendant was not the
       subject of custodial interrogation in that he had not been arrested or
       detained and Ranger Pena had no information that caused him to focus on
       Lawson Abram as a Defendant instead of an informational witness.

             4.    During the interview Ranger Pena told Defendant that
       Defendant was not being truthful, and Defendant changed portions of his
       statement that implicated Defendant in the homicide of Doug Hurst.
       Defendant had a cell phone and was never advised that he could not use it.
       Defendant was never restrained while he was giving the statement.

Abram v. State                                                                         Page 5
              5.      At the time that Defendant began to implicate himself, Ranger
       Pena gave Defendant the statutory admonishments required by Section 2,
       Article 38.22 of the Texas Code of Criminal Procedure. After that Defendant
       continued to give a statement and never requested an attorney or asked to
       end the interview.

            6.    This Court concludes that the statement of Lawson Lee
       Abram was voluntarily given and is admissible into evidence.

       After a hearing on Abram’s motion to suppress evidence seized from his cell

phone, the trial court made the following ruling:

       Based on the evidence heard and considered by the Court, I find by clear
       and convincing evidence that access to Lawson Abram’s cell phone, [sic]
       information was voluntarily provided to the officers; specifically that
       Patrick Pena, while conversing with the defendant, Lawson Abrams [sic],
       in an interview at the Teague Police Department while Lawson Abram was
       not under arrest, provided to Mr. Pena access to the phone and the
       password to the phone for his being able to access it; that the defendant at
       that time was free to leave and not in handcuffs or under arrest; that later,
       after the defendant had been arrested, Clayton Aldrich approached the
       defendant and asked for permission to look at the phone. Again, Lawson
       Abrams [sic] provided permission, including the password, and signed a
       Consent to Search Authorization, which has been introduced in this hearing
       as State’s Exhibit 1.

             Court finds the defendant was not represented by counsel at that
       time but was under arrest when he consented to the use of the phone.
       Therefore, I conclude the cell phone evidence was knowingly and
       voluntarily provided by Lawson Abrams [sic] to the peace officers.
       Therefore, your motion is respectfully denied.

                 3. Interview or Custodial Interrogation. Whether an individual is “in

custody” depends upon a review of the totality of the circumstances, and “the initial step

is to ascertain whether in light of ‘the objective circumstances of the interrogation,’ a

‘reasonable person [would] have felt he or she was not at liberty to terminate the

interrogation and leave.’” Howes v. Fields, 565 U.S. 499, 509, 132 S.Ct. 1181, 1189, 182

Abram v. State                                                                         Page 6
L.Ed.2d 17 (2012) (citations omitted); see also Estrada v. State, 313 S.W.3d 274, 294 (Tex.

Crim. App. 2010) (“[T]he ultimate inquiry is simply whether there [was] a formal arrest

or restraint on freedom of movement of the degree associated with a formal arrest”);

Dowthitt v. State, 931 S.W.2d 244, 254 (Tex. Crim. App. 1996) (“A person is in ‘custody’

only if, under the circumstances, a reasonable person would believe that his freedom of

movement was restrained to the degree associated with a formal arrest”). The second

part of the inquiry focuses upon “whether the relevant environment presents the same

inherently coercive pressures as the type of station house questioning at issue in

Miranda.” Howes, 565 U.S. at 509, 132 S.Ct. at 1190.

         The Court of Criminal Appeals has identified four general situations that may

constitute custody:

         (1) when the suspect is physically deprived of his freedom of action in any
         significant way, (2) when a law enforcement officer tells the suspect that he
         cannot leave, (3) when law enforcement officers create a situation that
         would lead a reasonable person to believe that his freedom of movement
         has been significantly restricted, and (4) when there is probable cause to
         arrest and law enforcement officers do not tell the suspect that he is free to
         leave.

Dowthitt, 931 S.W.2d at 255; see also Gardner v. State, 306 S.W.3d 274, 294 (Tex. Crim. App.

2009).

         Testifying at the suppression hearing were Clayton Aldrich, a deputy investigator

for the Freestone County Sheriff’s Office, Robert Patrick Pena, a Texas Ranger, and

Abram. Aldrich testified that the initial investigation of Hurst’s murder revealed the

names of a number of individuals who may have been involved or had information about

the case, including Abram. Aldrich was dispatched to Abram’s residence to request that

Abram v. State                                                                            Page 7
Abram come to the police station for an interview. Aldrich was accompanied by the

Teague Chief of Police. Abram was asleep when the officers knocked on his front door.

Aldrich told Abram that he was a person of interest in the burglary and asked if he would

come to the police station to be interviewed. Abram testified that one of the officers told

him that he had to go with them. Abram was driven to the police station in Aldrich’s

patrol vehicle. Abram was not arrested, searched, or handcuffed for the ride to the station

nor inside the station. Abram did not remember if the officers were in uniform, if they

were armed, or if they displayed their badges. One of the officers placed his hand on

Abram’s arm to direct him into the station, but removed his hand when they were inside

the station. The police station was located in the municipal building, and Abram was

escorted into a conference room that was usually used by the city council. There were no

windows in the room, and there was only one door.

       Pena conducted Abram’s interview. At certain points during the interview, Pena

left the room to confer with officers interviewing others who had been brought in for

questioning. Pena did not tell Abram he could not leave the conference room, although

Pena would say things like, “Hang on. I’ll be right back” or “Stay here for a second.” The

door to the conference room was shut during the interview, and Pena would close it when

he left the room. The door was never locked, although Pena did not specifically tell

Abram this. Abram had his cell phone in his possession during the interview and was

not prevented from using it. Pena initially had no information regarding Abram’s

involvement in Hurst’s murder other than that Abram’s name was mentioned during

interviews of other individuals, and he had no probable cause to arrest Abram before the

Abram v. State                                                                       Page 8
interview started. Abram was free to leave at any time, although Pena did not tell Abram

he was free to leave. After the interview was concluded, Abram left without being placed

under arrest.

        The trial court credited the testimony of Aldrich that Abram voluntarily

accompanied him for questioning. The testimony of Aldrich, Pena and Abram supports

the trial court’s determination that Abram was never handcuffed nor otherwise

restrained, Abram was not told he was not free to leave or that he had to remain for

questioning, and Pena had no probable cause to believe Abram had committed a crime.3

Considering the trial court’s findings and the record, a reasonable person would not have

believed that his or her freedom of movement was significantly restricted to the degree

that constituted an arrest.

        Viewing the evidence in the light most favorable to the trial court’s ruling, the trial

court did not err in determining that Abram was not in custody during his questioning

by Pena and that Pena was not required to inform Abram of his rights under Miranda or

article 38.22. See Martinez v. State, 496 S.W.3d 215, 219 (Tex. App.—Houston [14th Dist.]

2016, pet. ref’d).

                 4.   Mid-Stream Warning.          Abram argues that a “midstream” Miranda

warning is generally not permissible, citing Ervin, 333 S.W.3d at 212-13. However, in a

situation where a “midstream” Miranda warning is given, a post-warning statement is




3
 Even if Abram’s admission that he was present during the burglary gave Pena probable cause for an
arrest, Pena did nothing to manifest to Abram that he believed there was probable cause to arrest him. See
Ervin v. State, 333 S.W.3d 187, 211 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d).

Abram v. State                                                                                     Page 9
subject to suppression only if the questioning officer used a “two-step, ‘question first,

warn later’ strategy.” Carter v. State, 309 S.W.3d 31, 36 (Tex. Crim. App. 2010).

       Where the two-step tactic is not deliberately employed, “a suspect who has once

responded to unwarned yet uncoercive questioning is not thereby disabled from waiving

his rights and confessing after he has been given the requisite Miranda warnings.” Oregon

v. Elstad, 470 U.S. 298, 318, 105 S.Ct. 1285, 1298, 84 L.Ed.2d 222 (1985); Carter, 309 S.W.3d

at 36. “In this situation, where the first statement is unwarned but not coerced, ‘the

admissibility of any subsequent statement should turn . . . solely on whether it is knowing

and voluntarily made.’” Ervin, 333 S.W.3d at 213 (quoting Elstad, 470 U.S. at 309, 105 S.Ct.

at 1293).

       There was no evidence presented at the suppression hearing that indicated any

deliberate effort to undermine Miranda.

                 5. Voluntariness. Abram argues that his confession was not voluntary

because Pena used deceit and trickery as well as coercion and overreaching to obtain his

statements. Specifically, Abram notes that Pena promised that Abram would not be

prosecuted for capital murder if he provided statements implicating himself.

       The audio recording of Abram’s interrogation reflects that Pena made statements

such as Abram was looking at capital murder, aggravated assault or burglary depending

on the circumstances and should provide a truthful accounting of his actions in order to

help himself out. Pena also told Abram that Amber and O.J. were providing full

statements regarding everyone’s involvement in the burglary and were looking at

relative slaps on the wrist.

Abram v. State                                                                        Page 10
       Under Article 38.21, “A statement of an accused may be used in evidence against

him if it appears that the same was freely and voluntarily made without compulsion or

persuasion,. . . .” TEX. CODE CRIM. PROC. ANN. art. 38.21.

       A defendant may claim that his statement was not freely and voluntarily
       made and thus may not be used as evidence against him under several
       different theories: (1) Article 38.22, § 6—general voluntariness; (2) Miranda
       v. Arizona as expanded in Article 38.22, §§ 2 and 3 (the Texas confession
       statute); or (3) the Due Process Clause. It may be involuntary under one,
       two, or all three theories. A statement that is “involuntary” as a matter of
       constitutional law is also “involuntary” under Article 38.22. . . .

Oursbourn v. State, 259 S.W.3d 159, 169 (Tex. Crim. App. 2008) (footnotes omitted). Under

the second and third theories, a confession is involuntary “only when there is police

overreaching.” Id.

       Absent police misconduct causally related to the confession, there is no
       deprivation of due process of law by a state actor and therefore no violation
       of the Due Process Clause. Likewise, Miranda protects against government
       coercion to surrender Fifth Amendment rights. Thus, due process claims
       and Miranda claims of involuntariness involve an objective assessment of
       police behavior.

Cervantes-Guervara v. State, 532 S.W.3d 827, 833 (Tex. App.—Houston [14th Dist.] 2017, no

pet.) (internal citations omitted). Trickery or deception does not make a statement

involuntary unless the method was calculated to produce an untruthful confession or

was offensive to due process. Creager v. State, 952 S.W.2d 852, 856 (Tex. Crim. App. 1997).

       Under the Court of Criminal Appeals' precedents, section 6 of article 38.22 applies

to both an accused's custodial and non-custodial statements. Oursbourn, 259 S.W.3d at

171. Claims of involuntariness under article 38.22, section 6 can be, but need not be,

predicated on police overreaching of the sort required under a due-process analysis. Id.


Abram v. State                                                                         Page 11
at 172. Under articles 38.21 and 38.22, section 6, we may consider, in addition to any

allegedly coercive police conduct, factors such as the suspect's youth, intoxication, mental

retardation, or other disability that would not raise a federal due-process claim. Id. at

172–73. Under articles 38.21 and 38.22, fact scenarios that can raise a state-law claim of

involuntariness include the following:

       (1) the suspect was ill and on medication and that fact may have rendered
       his confession involuntary; (2) the suspect was mentally retarded and may
       not have “knowingly, intelligently and voluntarily” waived his rights; (3)
       the suspect “lacked the mental capacity to understand his rights”; (4) the
       suspect was intoxicated, and he “did not know what he was signing and
       thought it was an accident report”; (5) the suspect was confronted by the
       brother-in-law of his murder victim and beaten; (6) the suspect was
       returned to the store he broke into “for questioning by several persons
       armed ‘with six-shooters.’ ”

Id. (footnotes omitted).    “‘Voluntariness’ under both constitutional and state law

doctrines is to be measured according to the totality of the circumstances.” Smith v. State,

779 S.W.2d 417, 427 (Tex. Crim. App. 1989).

       In his brief, Abram notes that at the time of his confession he was eighteen years

old, under the influence of illegal substances, suffered from “adult anti-social behavior,”

“cannabis use disorder,“ “attention deficit hyperactivity disorder,” and “combined

presentation adjustment disorder with anxiety.” The only one of the foregoing that

appears in the record before the trial court at the hearing on the motion to suppress is

that Abram was eighteen at the time of his confession.

       Abram also offered no evidence to indicate that the “deception” used by Pena

caused Abram’s will to be “overborne.”        Indeed, Abram presented nothing at the

suppression hearing that would support any allegation that Pena lied to him about the

Abram v. State                                                                       Page 12
admissions that O.J. and Amber were making during their questioning by the police.

Finally, there was nothing to support a claim that any police prevarication was calculated

to produce an untruthful confession.

       Abram also asserts that Pena made false promises that he would face lesser

charges if he confessed. Law enforcement may not elicit confessions by making false

promises. Mason v. State, 116 S.W.3d 248, 260 (Tex. App.—Houston [14th Dist.] 2003, pet.

ref’d) (citing Lynumn v. Illinois, 372 U.S. 528, 534, 83 S.Ct. 917, 920, 9 L.Ed.2d 922 (1963))

(holding defendant’s will was overborn by police promise not to take away children if

defendant confessed); see also Gipson v. State, 844 S.W.2d 738, 739-40 (Tex. Crim. App.

1992) (affirming decision holding improper an officer’s implied inducement to defendant

that his confession might be used for him or on his behalf).

       A statement is involuntary, and thus inadmissible, if it is induced by a
       promise that is (1) of some benefit to the defendant; (2) positive; (3) made
       or sanctioned by someone in authority; and (4) of such a character as would
       likely influence the defendant to speak untruthfully.

Mason, 116 S.W.3d at 260 (citing Sossamon v. State, 816 S.W.2d 340, 345 (Tex. Crim. App.

1991)); see also Bordman v. State, 56 S.W.3d 63, 69 (Tex. App.—Houston [14th Dist.] 2001,

pet. ref’d) (defendant’s confession was admissible despite church elder’s statement

during interrogation that if defendant confessed, he would “probably” just get “five years

instead of fifteen”).

       Pena’s statements to Abram were not so manipulative or coercive that they

deprived Abram of his ability to make an unconstrained, autonomous decision to confess.

While Pena did tell Abram that he could be looking at a variety of charges, that was not


Abram v. State                                                                         Page 13
untrue. Abram was initially arrested for aggravated assault rather than capital murder.

The capital murder charges were not brought against him until after Hurst died. Further,

Pena’s statements to Abram did not constitute a promise of favorable treatment if he

confessed.

       Abram also offers no evidence to suggest that Pena’s statements about what might

happen if Abram told the truth were anything more than mere predictions about future

events. A “prediction about future events” is not the same as a “promise.” Mason, 116

S.W.3d at 260-61 (quoting United States v. Fraction, 795 F.2d 12, 15 (3rd Cir.1986)

(reasoning that a “prediction” is an action beyond a party's control, while a “promise” is

an offer to perform or withhold action within a party's control)); see also Espinosa v. State,

899 S.W.2d 359, 362–63 (Tex. App.—Houston [14th Dist.] 1995, pet. ref'd) (finding the

mere fact that the officer told the defendant, “Go ahead and tell us what happened.

Everything will be better for you. You will get less time” did not render the defendant's

statement involuntary).

       Finally, Pena did not imply that it was in his control to determine how Abram’s

statements would benefit Abram; he merely implied that it was in Abram’s control to

help himself by admitting his role in the burglary of Hurst’s house. Abram offers no

evidence to suggest that his will was overborne by Pena’s comments. A confession is

involuntary if “it [is] obtained as the result of [the] promise.” Mason, 116 S.W.3d at 261

(quoting Fraction, 795 F.2d at 14).

       Viewing the evidence in the light most favorable to the trial court’s ruling, we

conclude that, based on the totality of the circumstances, the trial court did not abuse its

Abram v. State                                                                         Page 14
discretion in concluding that Abram’s statement was voluntary under Miranda, the Due

Process Clause, and Art. 38.21.

                 6. Waiver of Rights. Abram further asserts that his statement should have

been suppressed under article 38.22 because he did not expressly waive his rights. Under

article 38.22, no oral statement of an accused made as a result of interrogation shall be

admissible against the accused in a criminal proceeding unless (1) the statement was

recorded, and (2) prior to the statement being made but during the recording, the accused

was warned of his rights and knowingly, intelligently, and voluntarily waived those

rights. TEX. CODE CRIM. PROC. ANN. art. 38.22 § 3(a); Joseph v. State, 309 S.W.3d 20, 23-24

(Tex. Crim. App. 2010). The State bears the burden of establishing a knowing, intelligent,

and voluntary waiver of rights under Miranda and Article 38.22. Leza v. State, 351 S.W.3d

344, 349, 351 (Tex. Crim. App. 2011); Joseph, 309 S.W.3d at 24. Waiver must be proven by

a preponderance of the evidence. Leza, 351 S.W.3d at 349, 351. Without a valid waiver, a

defendant’s statement is generally inadmissible. Joseph, 309 S.W.3d at 24. In determining

whether there was a valid waiver of an accused’s rights, the court looks to the totality of

the circumstances, “including the background, experience, and conduct of the accused.”

North Carolina v. Butler, 441 U.S. 369, 374-75, 99 S.Ct. 1755, 1758, 60 L.Ed.2d 286 (1979);

Leza, 351 S.W.3d at 349, 352-53; Joseph, 309 S.W.3d at 25.

       A waiver may be expressly made or implied by the accused’s conduct. Joseph, 309

S.W.3d at 24. An implied waiver of one’s rights is established upon a showing that the

accused: (1) was given the proper warnings; (2) understood the warnings and their

consequences; and (3) made an uncoerced statement. Berghuis v. Thompkins, 560 U.S. 370,

Abram v. State                                                                      Page 15
384, 130 S.Ct. 2250, 2261, 176 L.Ed.2d 1098 (2010); Leza, 351 S.W.3d at 349. While waiver

may not be presumed from an accused’s silence or the fact that a confession was made

after warnings were provided, “the general rule is that neither a written nor an oral

express waiver is required.” Watson v. State, 762 S.W.2d 591, 601 (Tex. Crim. App. 1988).

Continuing to answer police questions after indicating that the accused understands his

Miranda rights is often the kind of conduct viewed as indicative of one’s intention to

waive his rights. Leza, 351 S.W.3d at 354 n.33; Joseph, 309 S.W.3d at 25 n.7.

       After Pena advised Abram of his rights, Abram said that he understood them.

Abram continued to answer Pena’s questions afterwards, impliedly waiving his rights.

There was nothing to indicate during Pena’s questioning that Abram was on drugs or

any other substances or that Abram suffered from any mental defect that would affect

Abram’s understanding of his rights and the consequences of waiving them. Abram also

noted during his questioning that he had been in legal trouble before after being arrested

for a burglary three years previously. Abram was, therefore, already familiar with the

legal system.

       Viewing the totality of the circumstances in the light most favorable to the trial

court’s findings, we conclude that the trial court’s determination that Abram waived his

rights pursuant to Miranda and article 38.22 was not erroneous.

                 7. Cell Phone Access. A review of Abram’s recorded confession reveals

that he voluntarily consented to a search of his cell phone during his interrogation, even

signing a written consent form. Abram provided Pena with his password. Therefore, the



Abram v. State                                                                     Page 16
trial court did not abuse its discretion in denying Abram’s motion to suppress the

evidence obtained from his cell phone.

        The record supports the trial court’s determination that Abram’s confession was

knowingly and voluntarily made and that Abram voluntarily consented to a search of his

cell phone. We overrule Abram’s first issue.

        B. Sufficiency of the Evidence. In his second issue, Abram asserts that the

evidence is legally and factually insufficient4 to support his conviction for capital murder.

Abram specifically contends that the State provided no evidence that either he or J.D.

intended to cause Hurst’s death. The Court of Criminal Appeals has expressed our

standard of review of a sufficiency issue as follows:

                When addressing a challenge to the sufficiency of the evidence, we
        consider whether, after viewing all of the evidence in the light most
        favorable to the verdict, any rational trier of fact could have found the
        essential elements of the crime beyond a reasonable doubt. Jackson v.
        Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); Villa v.
        State, 514 S.W.3d 227, 232 (Tex. Crim. App. 2017). This standard requires
        the appellate court to defer "to the responsibility of the trier of fact fairly to
        resolve conflicts in the testimony, to weigh the evidence, and to draw
        reasonable inferences from basic facts to ultimate facts." Jackson, 443 U.S. at
        319. We may not re-weigh the evidence or substitute our judgment for that
        of the factfinder. Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App.
        2007). The court conducting a sufficiency review must not engage in a
        "divide and conquer" strategy but must consider the cumulative force of all
        the evidence. Villa, 514 S.W.3d at 232. Although juries may not speculate
        about the meaning of facts or evidence, juries are permitted to draw any
        reasonable inferences from the facts so long as each inference is supported
        by the evidence presented at trial. Cary v. State, 507 S.W.3d 750, 757 (Tex.
        Crim. App. 2016) (citing Jackson, 443 U.S. at 319); see also Hooper v. State, 214

4
 The Court of Criminal Appeals has eliminated the separate standards of legal and factual sufficiency.
Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010). The Court of Criminal Appeals, as well as this Court,
has previously rejected requests to reinstate factual sufficiency review. See Martinez v. State, 327 S.W.3d
727, 730 (Tex. Crim. App. 2010); see also Steggall v. State, No. 10-17-00017-CR, 2018 WL 3763747, at *1 (Tex.
App.—Waco Aug. 8, 2018, pet. ref’d) (mem. op., not designated for publication).

Abram v. State                                                                                      Page 17
       S.W.3d 9, 16-17 (Tex. Crim. App. 2007). We presume that the factfinder
       resolved any conflicting inferences from the evidence in favor of the verdict,
       and we defer to that resolution. Merritt v. State, 368 S.W.3d 516, 525 (Tex.
       Crim. App. 2012). This is because the jurors are the exclusive judges of the
       facts, the credibility of the witnesses, and the weight to be given to the
       testimony. Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010).
       Direct evidence and circumstantial evidence are equally probative, and
       circumstantial evidence alone may be sufficient to uphold a conviction so
       long as the cumulative force of all the incriminating circumstances is
       sufficient to support the conviction. Ramsey v. State, 473 S.W.3d 805, 809
       (Tex. Crim. App. 2015); Hooper, 214 S.W.3d at 13.

              We measure whether the evidence presented at trial was sufficient
       to support a conviction by comparing it to "the elements of the offense as
       defined by the hypothetically correct jury charge for the case." Malik v.
       State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). The hypothetically
       correct jury charge is one that "accurately sets out the law, is authorized by
       the indictment, does not unnecessarily increase the State's burden of proof
       or unnecessarily restrict the State's theories of liability, and adequately
       describes the particular offense for which the defendant was tried." Id.; see
       also Daugherty v. State, 387 S.W.3d 654, 665 (Tex. Crim. App. 2013). The "law
       as authorized by the indictment" includes the statutory elements of the
       offense and those elements as modified by the indictment. Daugherty, 387
       S.W.3d at 665.

Zuniga v. State, 551 S.W.3d 729, 732-33 (Tex. Crim. App. 2018).

       By a general verdict, Abram was found guilty of capital murder. The trial court's

jury charge allowed the jury to find Abram guilty individually, as a party, or as a co-

conspirator, pursuant to sections 7.01, 7.02(a)(2), and 7.02(b) of the Texas Penal Code.

Where, as here, the jury charge authorizes conviction on multiple theories, we must

uphold the jury's verdict if the evidence is sufficient under any of the multiple theories.

Hooper v. State, 214 S.W.3d 9, 14 (Tex. Crim. App. 2007); Green v. State, 495 S.W.3d 563, 572

(Tex. App.—Houston [1st Dist.] 2016, pet. ref'd).




Abram v. State                                                                          Page 18
       To convict Abram for capital murder as a conspirator, the State was required to

prove beyond a reasonable doubt the following: (1) Abram was a party to a conspiracy

to commit burglary of a habitation; (2) one of Abram’s co-conspirators intentionally

caused Hurst’s death in the attempt to commit burglary of a habitation; (3) the murder

was committed in furtherance of the conspiracy to commit burglary of a habitation; and

(4) Abram should have anticipated Hurst's murder could result from carrying out the

burglary of a habitation. Green, 495 S.W.3d at 572-73.

       Abram’s confession is sufficient to prove the elements required. Abram told Pena

that he agreed to assist J.D. and O.J. in burglarizing Hurst’s house, that all three men went

inside Hurst’s house to commit the burglary, and that J.D. shot Hurst after they entered

the house. Abram’s main argument is that there was no intent to commit murder.

       Direct evidence of intent is rarely available and is more often proven through the

use of circumstantial evidence. See Hamilton v. State, 399 S.W.3d 673, 680 (Tex. App.—

Amarillo 2013, pet. ref’d). Circumstantial evidence is as probative as direct evidence in

establishing guilt. Jenkins v. State, 493 S.W.3d 583, 599 (Tex. Crim. App. 2016). In

determining the sufficiency of the evidence to show an appellant's intent, and faced with

a record that supports conflicting inferences, we “must presume—even if it does not

affirmatively appear in the record—that the trier of fact resolved any such conflict in

favor of the prosecution, and must defer to that resolution.” Matson v. State, 819 S.W.2d

839, 846 (Tex. Crim. App. 1991).

       The intent to kill may be inferred from the use of a deadly weapon. Dominguez v.

State, 125 S.W.3d 755, 761 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d). A firearm is

Abram v. State                                                                        Page 19
a deadly weapon per se. Dukes v. State, 486 S.W.3d 170, 177 (Tex. App.—Houston [1st

Dist.] 2016, no pet.). When a defendant fires a deadly weapon at close range and death

results, the law presumes an intent to kill. Sholars v. State, 312 S.W.3d 694, 703 (Tex.

App.—Houston [1st Dist.] 2009, pet. ref’d); Child v. State, 21 S.W.3d 631, 635 (Tex. App.—

Houston [14th Dist.] 2000, pet. ref’d). See also Balderas v. State, 517 S.W.3d 756, 766-67

(Tex. Crim. App. 2016) (“act of pointing loaded gun at someone and shooting it toward

that person at close range demonstrates an intent to kill”).

       There was sufficient evidence from which the jury could infer that J.D. intended

to kill Hurst when J.D. unlawfully entered Hurst’s house and shot the Glock in Hurst’s

direction. Abram’s argument that the evidence is unclear whether Hurst or J.D. shot first

does not negate the jury’s finding. As Abram himself noted during his questioning by

Pena, Hurst had the right to defend himself and his property from their unlawful entry

into his home. Even if Hurst fired his weapon first, J.D. would still possess the requisite

intent to kill. See Rousseau v. State, 855 S.W.2d 666, 674-75 (Tex. Crim. App. 1993)

(testimony that offender did not fire first shot does not amount to evidence that offender

had not formulated intent to cause victim’s death in returning fire).

       The question then becomes whether Abram should have anticipated that Hurst's

murder could result from carrying out the burglary. Evidence that a defendant knew

that a co-conspirator might use a gun during the course of the conspiracy can be sufficient

to demonstrate that the defendant should have anticipated the possibility of murder

occurring during the course of the conspiracy. See Johnson v. State, 421 S.W.3d 893, 899

(Tex. App.—Houston [14th Dist.] 2014, no pet.); Davis v. State, 276 S.W.3d 491, 495 (Tex.

Abram v. State                                                                      Page 20
App.—Waco 2008, pet. ref’d); Love v. State, 199 S.W.3d 447, 453 (Tex. App.—Houston [1st

Dist.] 2006, pet. ref’d).

       The record reflects that Abram knew that J.D. was carrying the gun stolen in the

previous night’s burglary before they went to Hurst’s house. Abram attempted to

minimize his role by telling Pena that he only agreed to act as a lookout. By agreeing to

act as a lookout, Abram knew that there was a possibility someone might see and

interrupt them during the course of the burglary. Abram realized there was an even

greater possibility of detection when he noticed that a nearby residence had its lights on.

Abram saw J.D. pull the gun prior to his entry into Hurst’s house, indicating J.D.’s belief

that there might be someone in the house. J.D. continued into Hurst’s residence after

knocking over the stool that was placed in front of the French doors and causing the

glassware on top to crash to the ground. Abram followed J.D. into the house even though

he believed that the stool was set up to warn someone in the house that another break-in

was occurring. Abram advanced behind J.D. further into the house even after hearing a

voice from inside yell, “Gotcha!” J.D. began firing his weapon after hearing the voice

rather than retreating. Abram did not retreat until after the gunfire began. There was

more than sufficient evidence presented from which the jury could have determined

beyond a reasonable doubt that Abram anticipated that a murder could result from

carrying out the burglary of Hurst’s house.

       Abram additionally argues that there was insufficient evidence for the jury to

conclude that J.D. shot Hurst. Abram’s apparent theory is that Hurst shot himself,

pointing to bullet trajectories, the failure of the State to match the bullet that killed Hurst

Abram v. State                                                                          Page 21
with the .357 Glock found by J.D.’s body, and Hurst’s 9-1-1 call. All of the factors raised

by Abram were within the province of the jury to evaluate. Braughton v. State, 569 S.W.3d

592, 608 (Tex. Crim. App. 2018). The jury is the sole judge of the weight and credibility

of the evidence. Id. “We presume that the factfinder resolved any conflicting inferences

in favor of the verdict, and we defer to that resolution.” Id. “We may not re-weigh the

evidence or substitute our judgment for that of the factfinder.” Zuniga, 551 S.W.3d at 732.

       There was no evidence of any shooters other than J.D. and Hurst.                  The

investigating officers testified that the trajectories of the bullet holes found in the house

were consistent with the shooters firing erratically after the first shots. The bullet casings

found in the house matched the weapons used—the .357 Glock wielded by J.D. and a .40

caliber Smith & Wesson used by Hurst. The ammunition used was consistent with the

ammunition found with Hurst’s gun collection. Although the slug removed from Hurst

was not specifically matched to the .357, the firearm examiner testified that older Glock

weapons did not mark bullets well. The examiner further testified, however, that the .357

shell casings and the bullet recovered from Hurst were consistent with being fired from

a Glock. Finally, the 9-1-1 call from Hurst is not as distinct as Abram would suggest.

Abram argues that Hurst told the 9-1-1 operator that he shot himself. However, Hurst

told his son, who came to the scene before Hurst was taken to the hospital, that someone

had shot him and that he had heard multiple voices in the house. From the forgoing, the

jury could infer that J.D. shot Hurst.




Abram v. State                                                                         Page 22
       Viewing the evidence in the light most favorable to the verdict, we conclude that

the jury had sufficient evidence from which to conclude beyond a reasonable doubt that

Abram was guilty of capital murder. Abram’s second issue is overruled.

       C. Witnesses. In his third issue, Abram asserts that the trial court erred in not

granting a continuance in order to allow him to present the testimony of Dr. Phillip Taft

at trial. Abram also contends that the trial court erred in not granting his motion for new

trial to enable O.J. to testify on his behalf.

                 1. Dr. Taft. Dr. Taft was retained by Abram for evaluation and to present

evidence regarding mitigating factors. Abram moved for a continuance of the trial date

because Dr. Taft was out of town, which the trial court denied.

       The denial of a motion for continuance is within the sound discretion of the trial

court, and we review a trial court’s denial of a motion for continuance for an abuse of

discretion. Renteria v. State, 206 S.W.3d 689, 699 (Tex. Crim. App. 2006); see also Gutierrez

v. State, 446 S.W.3d 36, 38 (Tex. App.—Waco 2014, pet. ref’d). “[G]reat deference must be

shown to trial courts, because of the scheduling problems they face.” United States v.

Cronic, 466 U.S. 648, 662 n. 31, 104 S.Ct. 2039, 2048 n. 31, 80 L.Ed.2d 657 (1984); see also

Cates v. State, 72 S.W.3d 681, 692 (Tex. App.—Tyler 2001, no pet.). An appellant claiming

the erroneous denial of a motion for continuance must show: (1) the trial court erred in

denying the motion for continuance; and (2) such denial harmed him in some tangible

way. Gonzales v. State, 304 S.W.3d 838, 843 (Tex. Crim. App. 2010).

       A motion for continuance based upon the unavailability of a witness is governed

by statute and must include the diligence used to secure the witness’s presence at trial.

Abram v. State                                                                        Page 23
Id.; see also TEX. CODE CRIM. PROC. art. 29.06(2) (a first motion for continuance requesting

delay “on account of the absence of a witness” must “state” “[t]he diligence which has

been used to procure his attendance”) and art. 29.07 (subsequent motions for continuance

must comply with art. 29.06 and also state that the “testimony cannot be procured from

any other source known to the defendant” and that the defendant has a “reasonable

expectation of procuring the same at the next term of the court”).

       The trial court did not abuse its discretion in denying Abram’s motion for

continuance because Dr. Taft’s testimony would not have been admissible during the

guilt/innocence phase of the trial. Dr. Taft’s report was based only on factors that would

mitigate Abram’s punishment, not his guilt or innocence. See Cormier v. State, 540 S.W.3d

185, 193 (Tex. App.—Houston [1st Dist.] 2017, pet. ref’d); Lopez v. State, 493 S.W.3d 126,

139 (Tex. App.—Houston [1st Dist.] 2016, pet. ref’d)) (defendant not guaranteed

mitigation hearing when facing automatic sentence of life without parole).

                 2. OJarian McClenon. Abram filed a motion for new trial based upon

exculpatory testimony that would have been offered by O.J. had O.J. testified at his trial.

Abram subpoenaed O.J. to testify at trial, but O.J.’s attorney asserted O.J.’s Fifth

Amendment right not to testify. Abram asserts that made O.J. unavailable as a witness

at his trial. O.J. had not entered a plea of guilty to his involvement in Hurst’s murder at

the time of Abram’s trial.

       At the hearing on Abram’s motion for new trial, O.J. testified that he had been

willing to testify on Abram’s behalf even before he entered a guilty plea, but that his

lawyer “pled the Fifth” for him without his knowledge or consent. O.J. further testified

Abram v. State                                                                       Page 24
that he never told his lawyer or Abram’s lawyer that he wanted to testify for Abram. On

redirect, O.J. testified conversely that his lawyer told him that he did not want him to

testify on behalf of Abram.

       O.J. stated that he would have testified that he was with Abram and J.D. at Doug

Hurst’s house but that he did not witness the events that led to the death of J.D. and that

he did not really witness the events that led to the death of Hurst. O.J. further testified

that he knew J.D. had a gun when they went to Hurst’s house, although he denied that

there were any discussions regarding a burglary prior to going.

       Attached to Abram’s amended motion for new trial is an unsworn declaration

from O.J. Although offered by Abram as an exhibit at the hearing on the motion for new

trial, the trial court sustained the State’s objection to the unsworn declaration. When

ruling on Abram’s motion, the trial court noted that the entire record had been

considered, so it is unclear whether O.J.’s declaration was taken into account. In the

declaration, O.J. stated the following:

       The night of March 8, 2015 I got a call from Lawson Abram asking me did I
       want to smoke, I said yea come get me. So when he came to get me we went
       to Lawson’s girlfriends house, where we were smoking and playing the
       game. A little while later Lawson’s Girlfriend Mom asked her to find some
       bars. They call around and J.D. says he knows where to get some at. So
       J.D. shows up with the bars, and I buy 2 and Lawson gets 1. After Lawson’s
       girlfriend’s Mom takes 1 she ask for some more so we catch J.D. before he
       leaves. But this time his ride leaves him out there. J.D. walks out the house
       for like 10 min and comes back in. He dosn’t say anything he just turns
       around and starts walking out. So Lawson got up and walks out they get
       to the front door and I got up. So as we start walking we come up on a
       fence we jump the fence and keep walking. J.D. gets to the door and opens
       it, and all you can hear is somebody yell “What are you Doing in My
       House.” and a gunshot rings out and me and Lawson turn around and run.
       back to his girlfriend house. Bars are pills that altar your train of thought.

Abram v. State                                                                          Page 25
       When I took the bars its like I wasn’t myself. I couldn’t think about
       anything its like your out of your body. I didn’t know where J.D. was
       leading us or his intentions. When we approached the house neither me
       nor Lawson entered the house. I was subpoena to testify at Lawson’s Trial,
       but the day of the trial Chad Morgan my attorney said I couldn’t go to the
       court. One of the guards told me thats what he said. I wanted to testify and
       still do want to testify on behalf of Lawson. I was told that to make the plea
       I would have to testify against Lawson so I turned down the first plea. The
       reason I took the plea for 40 years is my lawyers told me it’s either 40 or life
       without parole. My lawyer said he could almost guarantee life without
       parole so I plead out as a last restort.

       O.J.’s lawyer, Chad Morgan, testified that, prior to Abram’s trial, he discussed with

O.J. the pros and cons of testifying. Morgan further testified that he spoke with O.J., on

the phone and in person, after the subpoena was delivered for Abram’s trial. Morgan

advised O.J. that it was not in his benefit to be on record prior to his own trial. Morgan

told O.J. that he wanted to plead the Fifth on his behalf, and O.J. told him “Okay.”

Morgan further testified that O.J. rejected the State’s first plea offer not because he refused

to testify against Abram but because he did not want to do time.

       Motions for new trial on grounds of newly discovered evidence are not favored

and are viewed with great caution. Drew v. State, 743 S.W.2d 207, 225 (Tex. Crim. App.

1987); Lewis v. State, 126 S.W.3d 572, 579 (Tex. App.—Texarkana 2004, pet. ref’d). We

review a trial judge’s denial of a motion for new trial under an abuse of discretion

standard. Colyer v. State, 428 S.W.3d 117, 122 (Tex. Crim. App. 2014); Salazar v. State, 38

S.W.3d 141, 148 (Tex. Crim. App. 2001). “We do not substitute our judgment for that of

the trial court; rather, we decide whether the trial court’s decision was arbitrary or

unreasonable.” Holden v. State, 201 S.W.3d 761, 763 (Tex. Crim. App. 2006). “A trial judge

abuses his discretion in denying a motion for new trial when no reasonable view of the

Abram v. State                                                                            Page 26
record could support his ruling.” Colyer, 428 S.W.3d at 122; Holden, 201 S.W.3d at 763.

“We view the evidence in the light most favorable to the trial judge’s ruling and presume

that all reasonable factual findings that could have been made against the losing party

were made against that losing party.” Colyer, 428 S.W.3d at 122. At a motion for new

trial hearing, the judge alone determines the credibility of the witnesses. Id.; Salazar, 38

S.W.3d at 148. “Even if the testimony is not controverted or subject to cross-examination,

the trial judge has discretion to disbelieve that testimony.” Colyer, 428 S.W.3d at 122.

       Motions for new trial based upon newly discovered evidence are controlled by

Article 40.001 of the Code of Criminal Procedure, which provides, “A new trial shall be

granted an accused where material evidence favorable to the accused has been

discovered since trial.” TEX. CODE CRIM. PROC. ANN. art. 40.001. In order to obtain relief

under art. 40.001, the defendant must establish the following:

       (1)       the newly discovered evidence was unknown or unavailable to the
                 defendant at the time of his trial;

       (2)       the defendant’s failure to discover or obtain the new evidence was
                 not due to the defendant’s lack of due diligence;

       (3)       the new evidence is admissible and not merely cumulative,
                 corroborative, collateral, or impeaching; and

       (4)       the new evidence is probably true and will probably bring about a
                 different result in a new trial.

State v. Arizmendi, 519 S.W.3d 143, 149 (Tex. Crim. App. 2017); see also Keeter v. State, 74

S.W.3d 31, 36-7 (Tex. Crim. App. 2002).

       Viewing the evidence in the light most favorable to the trial court’s ruling, the trial

court could reasonably have concluded that the evidence O.J. would have offered was

Abram v. State                                                                         Page 27
probably not true and would probably not bring about a different result in a new trial.

O.J.’s statements regarding drug usage by him and Abram were not corroborated by

Abram during Abram’s recorded confession or during Abram’s testimony at the

suppression hearing. Additionally, many of O.J.’s statements directly contradict Abram’s

recorded confession, particularly in regard to Abram’s admissions that all three of the

participants, Abram, O.J. and J.D., agreed to burglarize Hurst’s home and that Abram

and O.J. actually entered the house behind J.D. Further, O.J.’s declaration and testimony

that he and Abram followed J.D. to Hurst’s house without any discussion is clearly not

credible. The trial court could also have determined that Morgan’s testimony was more

credible than O.J.’s in regard to O.J.’s willingness to “take the Fifth” at Abram’s trial and

O.J.’s unwillingness to accept a plea due to the time he would have to serve rather than

his reluctance to testify against Abram.

       We conclude that the trial court did not abuse its discretion in denying Abram’s

motion for new trial.

       As the trial court did not abuse its discretion in denying the motion for

continuance or the motion for new trial, we overrule Abram’s third issue.

       D. Constitutionality of Capital Murder Statutes. Abram contends in his fourth

issue that Texas Penal Code 19.03 is unconstitutional because a defendant convicted of

capital murder when the prosecution does not seek the death penalty is precluded from

offering evidence of mitigation at the punishment phase. Although Abram does not

specify which sections of the United States Constitution are violated in his appellate brief,

the motion to dismiss filed in the trial court asserts that the sentencing scheme violates

Abram v. State                                                                        Page 28
Abram’s rights to due process and to be free from cruel and unusual punishment under

both the U.S. Constitution and the Texas Constitution. Abram’s arguments have been

rejected by the courts. See Harmelin v. Michigan, 501 U.S. 957, 994-96, 111 S.Ct. 2680, 2701-

702, 115 L.Ed.2d 836 (1991) (mandatory life sentence does not violate Eighth

Amendment); see also Cormier, 540 S.W.3d at 192 (mandatory life sentence not in violation

of prohibition against cruel and unusual punishment in U.S. or Texas Constitution); Lewis

v. State, 448 S.W.3d 138, 147 (Tex. App.—Houston [14th Dist.] 2014, pet. ref’d), cert. denied,

--- U.S. ---, 136 S.Ct. 52 (2015) (mandatory sentence for capital murder does not violate

right to due process or prohibition of cruel and unusual punishment under U.S. or Texas

Constitution); Simms v. State, No. 06-18-00181-CR, 2019 WL 2479845, at *11 (Tex. App.—

Texarkana June 14, 2019, pet. ref’d) (mem. op., not designated for publication); 5 Speers v.

State, No. 05-14-00179-CR, 2016 WL 929223, at *5-7 (Tex. App.—Dallas Mar. 10, 2016, no

pet.) (mem. op., not designated for publication) (mandatory sentence for capital murder

does not violate right to due process or prohibition against cruel and unusual punishment

in U.S. or Texas Constitution); Anderson v. State, No. 13-07-00752-CR, 2009 WL 2915011,

at *4-5 (Tex. App.—Corpus Christi Aug. 27, 2009, pet. ref’d) (mem. op., not designated

for publication) (mandatory sentence for capital murder does not violate right to due

process or prohibition against cruel and unusual punishment under U.S. or Texas

Constitution). Abram’s fourth issue is overruled.



5
  Under Rule 47.7(a) of the Rules of Appellate Procedure, unpublished memorandum opinions not
designated for publication have no precedential value but may be cited with the notation, “(not designated
for publication).” Unpublished memorandum opinions are persuasive rather than binding precedent that
the court may follow or reject. See Carrillo v. State, 98 S.W.3d 789, 794 (Tex. App.—Amarillo 2003, pet. ref’d).

Abram v. State                                                                                         Page 29
                                     Conclusion

       Having overruled all of the issues raised by Abram, we affirm the trial court’s

judgment.



                                               REX D. DAVIS
                                               Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Neill
Affirmed
Opinion delivered and filed December 4, 2019
Do not publish
[CRPM]




Abram v. State                                                                 Page 30
