Off-duty Dallas police officer
killed in shooting
Monday, November 26, 2001
An off-duty Dallas police officer was killed
and another was wounded early Sunday following a shootout at a
Dallas police spokesman Hollis Edwards said
four Dallas police officers were working security at Club DMX when
a fight broke out inside the club about 3 a.m.
A patron removed from the club then pulled a
gun and shot two of the officers, one fatally, authorities said.
Police then shot the man as he tried to flee and arrested him.
Officer Christopher K. James, 34, was flown to
Parkland Memorial Hospital, where he later died. The second
officer, Clarence D. Lockett, was treated and released early
Sunday from Parkland.
Licho Escamilla, 19, was charged with capital
murder in James' death.
He was treated for a gunshot wound at the same
hospital before being transported to the Lew Sterrett Justice
Center on Sunday afternoon.
Police said Escamilla was also wanted in
connection with the Nov. 8 slaying of a man in west Dallas. A
murder warrant for Escamilla was issued Nov. 19.
Police Chief Terrell Bolton said preliminary
information indicated the slain officer was trying to help the
"Once the facts come out, I think they will
show that this was a senseless murder of a police officer and the
attempt on another one," Bolton said.
According to a preliminary investigation, James
and Lockett were attempting to break up a scuffle between the
suspect and several other people outside the club.
One witness told The Dallas Morning News that
Escamilla pulled a gun out and began firing randomly.
Police said James and Lockett did not have time
to pull out their guns.
Escamilla fired one to three shots at James,
police said, then exchanged fire with the two approaching officers
He attempted to steal a car about a block away,
but was tackled by two people, police said. Police said Escamilla
began shooting again before being captured with the help of some
Escamilla used more than 12 bullets and was out
of them when he was detained, police said.
James leaves behind newlywed wife and daughter
from a previous relationship, officials said.
In the Court of
Criminal Appeals of Texas
The State of Texas
June 30, 2004
On direct appeal
from Dallas County
Hervey, J., delivered the opinion of the Court
in which Keller, PJ., Meyers, Womack, Keasler, Holcomb
and Cochran, JJ., joined. Price and Johnson,
O P I N I O N
convicted appellant of capital murder. The trial court sentenced
appellant to death pursuant to the jury's answers to the special
issues submitted at the punishment phase. Appellant raises thirty-one
points of error. We affirm.
The indictment alleged
that appellant shot and killed a peace officer who was "then and
there acting in the lawful discharge of an official duty, and the
said [appellant] then and there knew the said deceased to be a
peace officer." See § 19.03(a)(1), Tex.Pen.Code.
Appellant claims that the evidence is legally insufficient (point
of error five) and factually insufficient (point of error six) to
support a finding that he knew the victim was a peace officer when
appellant killed him.
In a legal sufficiency
review, we view all of the evidence in the light most favorable to
the verdict and then determine whether a rational trier of fact
could have found the essential elements of the crime beyond a
reasonable doubt. See Jackson v. Virginia, 99 S.Ct. 2781,
In a factual
sufficiency review, we view all of the evidence in a neutral light,
and we will set the verdict aside only if the evidence is so weak
that the verdict is clearly wrong and manifestly unjust, or the
contrary evidence is so strong that the standard of proof beyond a
reasonable doubt could not have been met. See Zuniga v. State,
slip op. at 8 (Tex.Cr.App. No. 539-02, delivered April 21,
The evidence shows
that the victim was one of four off-duty Dallas police officers
working extra jobs at a nightclub. The 19-year-old appellant shot
and killed the victim and wounded one of the other off-duty police
officers (who survived the shooting) outside the club. An employee
of the club (Bravo) testified that two "cops" were approaching the
scene of a fight at the parking valet station in front of the club
when the shooting started.
Q. [PROSECUTION]: And,
go ahead and tell the jury what you remember from there?
A. [BRAVO]: Well, then
after that, all of the fighting and whatever. Then, the cops were
like on their way to help.
Q. The cops were on
their way to help, is that what you said?
Q. All right. Go ahead?
A. And, well, as soon
as, well, they didn't even get the chance to get to the guy, when
the guy just bring out a gun and started shooting.
Q. And, what happens
A. Well, it sounded
like the first cop got shot, then the [victim]. The shooting just
like keep going on and on. Then the guy tried to took [sic] off
and he stopped like midway where [the victim] was on the floor. He
was like, shoot him a couple of times, and then just took off, and
a couple of cops-a couple of policemen just followed him.
A valet parking
employee (Gonzales) testified that appellant shot two uniformed
police officers as they were approaching the scene of the
disturbance at the parking valet station. Gonzales testified that
he could tell they were police officers.
Q. [PROSECUTION]: And,
then what happened?
A.[GONZALES]: When I
turned around, I saw two police officers coming and [appellant]
fired at them.
Q. And, the two
persons that you saw coming, you could tell that they were police
officers; is that right?
Q. And, where did you
see the two police officers coming from?
A. Further away in
front of where we were at.
Q. Could you take your
pointer and point to the area that you first saw the two police
officers on State's Exhibit 10?
Q. Go ahead, please?
A. (Witness did as
Q. And, you are
pointing to an area that looks like it is on the driveway area,
pretty close to the front of Club DMX-the front porch of DMX; is
Q. And, they were in
The off-duty police
officer who was wounded in the shooting (Lockett) testified that
he was walking toward a disturbance (which he described as a
breach of the peace) in the valet parking area when the shooting
Please, tell the jury what it is that you recall seeing?
A. [LOCKETT]: Okay. At
that time, I was standing there. They,-the disturbance was in the
valet area. And, I started walking toward where I thought this
disturbance was. And, as I was walking over there, the people
that's in the valet area, as I last recall, three Latin males and
one Latin male running away, or several Latin males that were
running toward me, I see these, at this time, three Latin males
trying to attack this one Latin male. And, I grabbed the one Latin
male from behind, and as I am pulling him to the ground, we fall
to the ground and we begin to struggle as I hear gunfire. And, as
I hear gunfire, the next thing I know I am shot and on the ground.
I am shot in my left wrist and the bullet goes from my left wrist
into the palm of my hand. And that is basically the last thing
that I remember.
Lockett also testified
that his and the victim's clothing "clearly identified" them as
Q. [PROSECUTION]: All
right. Do you remember if November the 24th, Saturday,
at 2001, was a rather cold evening?
A. [LOCKETT]: Yeah, it
was chilly. I think we had like skull caps or a wool cap with
Dallas PD emblem and the black jackets with the Dallas Police
emblem on the chest and the police emblem on my left side.
Q. And, you were
wearing such a jacket on that occasion?
Q. And, was [the
victim] also wearing a police jacket just like you described, as
best as you can recall?
A. Yes, as best as I
can recall, I think he was also wearing a jacket.
Q. And, were you both
clearly identified as Dallas Police Officers?
A. Yes, we were.
A police officer
(Rivera), who arrived at the club soon after the shooting,
testified that he unbuttoned the victim's "uniform shirt" and
ballistic vest to perform CPR on the victim.
Q. [PROSECUTION]: When
you were ministering to him, did I understand you to say that in
order to do the CPR, you had to unbutton some of his clothing and
to do something with some of the apparel that he was wearing?
A. [RIVERA]: Yes, sir.
I unbuttoned his uniform shirt, unbuckled the front of his Sam
Brown Belt. He was wearing his ballistic vest. There are velcro
straps that come to the front. And, basically, I pulled the straps
out and removed the front panel, so that-we can work on him
The evidence also
shows that, soon after the shootings at the club, appellant was
arrested and transported to a hospital because he suffered a minor
gunshot wound in an exchange of gunfire with one of the other off-duty
police officers. Several witnesses at the hospital heard appellant
commenting about how he had shot a "faggot cop." For example, a
police officer (Hay), who accompanied appellant to the hospital,
Q. [PROSECUTION]: And,
what happens as far as he is concerned that you recall there?
A. [HAY]: Once we were
in the actual trauma room, the doctor asked him, if he knew where
he was at. And, he replied, I am at Parkland because I shot a
Q. And, what then
occurs after that, that you recall?
A. He made several
more statements along those lines. He repeated that phrase several
times. I recall, that after the attending physicians conducted
their initial examination and the nurses started to file out to
get-to do their business, he looked at myself and another Officer,
Joe Allen, and started laughing and said, yeah, yeah, mother
fuckers, I thought I was invincible like that cop thought he was,
but I guess, I am not. And, then he made another statement and was
laughing and said that he would be-he said, yeah, mother fucker, I
will be out of here in forty-eight hours.
Q. And, the words that
you are telling the jury right now are your recollection, not of
your language, but of the language that he used.
A. That is correct.
admitted during a videotaped interview with a television reporter
that he knew he was shooting at a police officer.
Q. [GILLETT]: Now,
you've, you've told me already you knew you were shooting at a
police officer-the first one...
A. [APPELLANT]: Yeah.
Q. ...so there's no
question that you knew you were shooting at a police officer the
Q. You think you
A. Yeah. Hell yeah. I
killed that MF.
The only piece of the
victim's clothing that was introduced into evidence was the
victim's jacket. The State's brief describes it as the victim's "uniform
jacket," but it is literally described in the reporter's record as
the victim's "jacket."
Q. [PROSECUTION]: I am
showing you an item now, Detective Vineyard, and ask you to
examine that, which is marked State's Exhibit 24?
A. [VINEYARD]: (Witness
did as requested.) Do you want to go ahead and take it out?
Q. Yes, sir, if you
is the jacket that [the victim] was wearing that evening, removed
at the hospital.
Q. And, if the court
please, we will have the jacket itself marked as State's Exhibit
24 and offer it into evidence and not the paper that had contained
[THE COURT]: Any
[THE DEFENSE]: No
objection, Your Honor.
[THE COURT]: State's
Exhibit 24 is admitted.
The record also
reflects that, during closing jury arguments, the State referred
to police insignias on this jacket.
I don't know if you
can see here, but, this is the jacket that was introduced into
evidence. This is the jacket that [the victim] wore on that
occasion. And, you can see, if you look at it, you can see the
insignia of the Dallas Police Department both on the chest, as
well as, on the side of the shoulder. The jacket doesn't look the
same now as it did when he drove in with it, because of what is to
happen to him and because of the wounds that are to be inflicted
to him and then, those wounds and the holes in that jacket then,
analyze subsequently by the Southwestern Institute of Forensic
Sciences. But, let there be no mistake that the jacket he is
wearing clearly identifies him as a Dallas Police Officer. And,
this exact type of jacket is the jacket that the other three
officers are wearing.
during closing jury arguments that he was not guilty of capital
murder because the State presented no evidence that the victim was
performing an "official duty." But see Moore v. State,
999 S.W.2d 385, 403-04 (Tex.Cr.App. 1999), cert. denied, 120 S.Ct.
2220 (2000) (off-duty police officer who intervened in commission
of a burglary was acting in his official capacity as a police
officer). Appellant claims on appeal, however, that the State
presented no evidence that appellant knew the victim was a police
officer when appellant killed him.
In support of this
claim, appellant argues that none of the testifying officers
positively stated that the victim was wearing a police uniform or
anything identifying him as a police officer. Appellant argues
that Rivera's testimony that he unbuttoned the victim's "shirt"
and removed the front panel of his ballistic vest "is the only
positive description of the [victim's] clothing" and that this "fails
to show that there were any identifying markings on the shirt that
would have led Appellant to believe he was shooting at a police
officer." Appellant further argues that his statements at the
hospital about shooting a "faggot cop" have no probative value
because "Appellant could have learned of the identity of the
victim during his arrest."
appellant's characterization of Rivera's testimony, Rivera
testified that he unbuttoned the victim's "uniform shirt." Lockett
testified that the victim's clothing "clearly identified" him as a
police officer. The valet parking employee (Gonzales) testified
that the officers appellant shot were in "uniform." Appellant
admitted during the interview with the television reporter that he
knew the victim was a police officer when he killed him.
Appellant's statements at the hospital also reasonably support an
inference that appellant knew the victim was a police officer when
appellant killed him particularly since there is no contrary,
affirmative evidence in this record that appellant "learned of the
identity of the victim during his arrest." See Lacour v. State,
8 S.W.3d 670, 671 (Tex.Cr.App. 2000) (legal sufficiency appellate
standard of review meant to give "full play to the [jury's]
responsibility fairly" to "draw reasonable inferences from basic
facts to ultimate facts"); Zuniga, slip op. at 8.
The jury's verdict in
this case is not irrational, or clearly wrong and manifestly
unjust, or contrary to evidence so strong that the standard of
proof beyond a reasonable doubt could not have been met. Points of
error five and six are overruled.
In points of error one
through four appellant claims that the trial court denied his
challenges for cause to veniremembers Denton (point of error one),
Medley (point of error two), Overton (point of error three) and
Fletcher (point of error four). Harm from the erroneous denial of
a defense challenge for cause occurs (1) when a defendant
exercises a peremptory challenge on a veniremember whom the trial
court erroneously failed to excuse for cause at the defendant's
request, (2) the defendant uses all of his statutorily allotted
peremptory challenges, and (3) the defendant was denied a request
for an additional peremptory challenge which he claims he would
use on another veniremember whom the defendant identifies as "objectionable"
and who actually sits on the jury. See Johnson v. State,
43 S.W.2d 1, 5-6 (Tex.Cr.App. 2001), following Wolfe v. State,
178 S.W.2d 274, 280-81 (Tex.Cr.App. 1944) (op. on reh'g).
When these conditions
are met, we have stated that this harms a defendant because he had
to use a peremptory challenge to remove a veniremember who should
have been removed for cause which has the effect of wrongfully
depriving the defendant of one of his statutory peremptory
challenges. See Johnson, 43 S.W.3d at 6; Wolfe,
178 S.W.2d at 281. When these conditions are met and a defendant
has been granted additional peremptory challenges, he must also
show that the trial court erroneously denied a number of defense
challenges for cause equal to at least one more than the
additional peremptory challenges in order to show that he was
wrongfully "deprived" of "the use of at least one of his allotted
peremptory challenges." See Feldman v. State, 71 S.W.3d
738, 744, 748 (Tex.Cr.App. 2002); Martinez v. State, 763
S.W.2d 413, 415 (Tex.Cr.App. 1988). For example, if the defendant
receives three additional peremptory challenges, he must show that
the trial court erroneously denied his challenges for cause to at
least four veniremembers. See Feldman, 71 S.W.3d at 744.
The record in this
case reflects that appellant exercised peremptory challenges on
Denton, Medley and Overton after the trial court had denied his
challenges for cause to them. The record also reflects that the
trial court granted appellant three additional peremptory
challenges. Both parties assert in their briefs that appellant
challenged Fletcher for cause. Our review of the record, however,
reflects that appellant did not challenge Fletcher for cause and
that appellant (who was out of peremptory challenges) identified
Fletcher as an "unacceptable" juror after the trial court had
denied appellant's request for a fourth additional peremptory
challenge which he apparently would have used to remove Fletcher
who became the twelfth juror.
[THE COURT]: Does the
State have any challenge for cause on juror number eight seventy-four,
[THE COURT]: Does the
[DEFENSE]: No, Your
[THE COURT]: What says
State will accept Ms. Fletcher.
[THE COURT]: What says
[DEFENSE]: Your Honor,
we would show the Court that Ms. Fletcher, it would be a juror
unacceptable to the Defense for the reason that she does not have
a consideration of mitigation. In fact, on her questionnaire, she
said that each person is responsible for their own actions and,
her answer under questioning, her concept of mitigation, although,
she couldn't think of it, the only thing she could think of was,
would involve self-defense or accident. And, the fact, that she in
the past, worked for the City of Dallas and as a police dispatcher
and due to the reason that she is not acceptable to the Defense,
we ask for an additional challenge to challenge juror eight
seventy-four, Mollie Fletcher.
[THE COURT]: Court
denies your request for an additional peremptory challenge.
failed to preserve any error on whether Fletcher was challengeable
for cause. (1) See Sells v.
State, 121 S.W.3d 748, 758 (Tex.Cr.App.), cert. denied, 124
S.Ct. 511 (2003) (to preserve error on denied defense challenges
for cause, defendant must demonstrate that he "asserted a clear
and specific challenge for cause); Mayo v. State, 4 S.W.3d
9, 12 (Tex.Cr.App. 1999) (requirement that juror be county citizen
is forfeited by failure to assert that as basis for challenge for
cause); see also Johnson, 43 S.W.3d at 5 n.6 (discussing
past confusion of "preservation of error and harm issues within
the context of an erroneous denial of a challenge for cause").
Under these circumstances, he cannot show harm from the denial of
his challenges for cause to the other three veniremembers since he
received three additional peremptory challenges. See Feldman,
71 S.W.3d at 744, 748; Martinez, 763 S.W.2d at 415.
Points of error one through four are overruled.
In points of error
seven and eight, appellant claims that the trial court erroneously
denied his motion to suppress a custodial videotaped interview
that he gave to a television reporter about two days after his
arrest. We understand appellant to claim that the admission into
evidence of portions of this custodial interview at the guilt/innocence
and punishment phases of his trial violated the Sixth Amendment to
the United States Constitution and Article 38.22, Tex. Code Crim.
Proc., (2) because the reporter was
a "state agent" when he conducted the interview. See Miranda
v. Arizona, 86 S.Ct. 1602, 1612 (1966) (defining "custodial
interrogation" as questioning initiated by the police after a
person has been arrested); Paez v. State, 681 S.W.2d 34,
36-37 (Tex.Cr.App. 1984) (Article 38.22 does not apply to non-law
enforcement personnel who are not state agents).
The evidence from the
suppression hearing shows that the police followed their
established practice when they permitted the reporter to interview
appellant in jail after appellant consented to the interview in
response to a request by the reporter. Appellant claims that the
reporter became a "state agent" when, after appellant consented to
the interview but before the interview occurred, a Dallas police
officer called the reporter and, according to appellant, "asked [the
reporter] to get [appellant] to talk because [appellant] would not
talk to the police."
however, suggests something that is out of context with the entire
conversation between the officer and the reporter and a full
reading of the record. The record from the suppression hearing
Q. [PROSECUTION]: Now,
between the time that the interview was set and the time that you
conducted the interview, did you have any conversations with any
law enforcement officers?
A. [GILLETT, THE
REPORTER]: Yes, sir, I did.
Q. Who was that?
A. Sergeant Joe
Decorte, the Sergeant from the Special investigative Unit of the
Dallas Police Department.
Q. And, when did you
talk to him, do you recall?
A. Sometime after I
learned that I had the okay to do the interview with [appellant],
but before the actual interview.
Q. And, what was that
conversation, to the best of your recollection?
A. I was very
uncomfortable getting a phone call that near the time of the-of
the interview. I thought that he was going to attempt to-was going
to tell me that they had found a reason for him not to talk to me.
There was-had been a lid on things the day before. I don't know
why, we just-there were road blocks in terms of public information
that I hadn't seen routinely and I was afraid that he was going to
put a road block to the interview.
Q. And, what did he
A. I asked him, are
you going to try to block me. And, he said, well no, I want you to
get him to talk. He won't talk to me. Words to that. That's not
quote, that's, you know, what my recollection, my impression of
what he said.
Q. All right. What
else was said, if you recall, during your conversation with him.
A. That's all. I was
uncomfortable taking the phone call.
Q. The remark that was
made, how did you review that remark by him, that I hope you get
him to talk or whatever the words were that he used?
A. I thought he was,
you know, I was still sensitive about thinking he was going to try
to block the interview. And, he said, like a laugh, a throw away,
you know, he won't talk to me so, maybe, you know, maybe you can
get him to confess, something like that.
Q. And, you don't
recall the exact words he used, is that correct?
A. No, that is my
recollection, is he said, he chuckled and said, hell, no, I want
you to get him to confess, he won't talk to me.
Q. Did you just-
A. But, he did it in a
laughing way. It was not a direct order or anything.
Q. And, that was my
next question. Did you take that comment by him as any kind of
directions to you as to what you should do?
A. No, sir, absolutely
Q. And, was it more in
the nature of just an off the cuff remark by him?
A. That's correct, it
Q. And, in terms of
the questions that you were going to ask for the interview, were
they your questions?
A. Yes, sir,
Q. Did anyone tell you
what to ask or direct you to ask questions in any certain way?
A. No, sir.
This record clearly
does not present the scenario where the police employ an informant
to deliberately elicit incriminating statements from an in-custody
defendant solely for the purpose of helping the police gather
evidence against the defendant. See generally State v.
Hernandez, 842 S.W.2d 306, 312-16 (Tex.App.-San Antonio 1992,
pet. ref'd), cert. denied, 113 S.Ct. 3049 (1993) (thorough
discussion of how non-law enforcement personnel can become state
agents for Sixth Amendment purposes). In this case, the record
supports a finding that the officer expressed to the reporter a
hope that appellant would incriminate himself during the interview
with the reporter. This was not an offer to the reporter to act as
a state agent and did not convert an otherwise legal interview
into an illegal one. See Hernandez, 842 S.W.2d at 314 (creation
of an agency between law enforcement and non-law enforcement
personnel depends upon the existence of an agreement between them
at the time of the elicitation). Even if this was an offer by the
police to the reporter to become a state agent, there is no
evidence to support a finding that the reporter accepted this
offer. See id. On this record, we cannot conclude that
the reporter was acting as a state agent when he interviewed
Points of error seven and eight are overruled.
In point of error nine,
appellant claims that the trial court erred "in allowing the oral
statements of [appellant] to law enforcement personnel while in
custody." Dallas police officer Hay testified at guilt/innocence
to oral statements he heard appellant make soon after appellant
killed the victim. The statements at issue here are: (1)
appellant's spontaneous statement to Hay "why didn't you mother
fuckers kill me, I just wanted you to kill me" while appellant was
being transported in an ambulance from the scene of his arrest to
the hospital, and (2) appellant's statement, "I am at Parkland
[Hospital] because I shot a faggot cop" in response to a doctor's
question to him in the hospital asking appellant if he knew where
he was. Appellant claims that the admission of this evidence
violated Article 38.22 and the Fifth and Sixth Amendments to the
United States Constitution.
Appellant claims in
point of error ten that the trial court erroneously admitted into
evidence appellant's custodial oral statements to hospital
personnel who were treating appellant's injuries. Appellant claims
that they were state agents. Appellant also claims that "the
probative value did not outweigh the prejudicial effect of this
evidence" under Tex.R.Evid. 403. The statements at issue here are:
(1) a paramedic's testimony that he heard appellant say in the
hospital, "Yeah, I shot that faggot cop," (2) a nurse's testimony
that she heard appellant say in the hospital "Yes, I shot that
faggot cop," and (3) another nurse's testimony that she heard
appellant laughingly say in the hospital, "I killed that mother
These statements were
not the result of "interrogation" by law enforcement personnel or
their agents. See Miranda, 86 S.Ct. at 1612 (defining "custodial
interrogation" as questioning initiated by the police after a
person has been arrested); Paez, 681 S.W.2d at 36-37 (Article
38.22 does not apply to non-law enforcement personnel who are not
state agents). In addition, the trial court did not abuse its
discretion to determine that the probative value of appellant's
statements was not substantially outweighed by the danger of
unfair prejudice since they were probative of appellant's intent
and of whether appellant knew that the victim was a police officer
when he killed him. Points of error nine and ten are overruled.
In point of error
eleven, appellant claims that the trial court erroneously admitted
into evidence nine (possibly ten) (4)
autopsy photographs of the victim. Appellant argues that the
probative value of this evidence was "far outweighed" by its
"prejudicial effect" under Rule 403.
At trial, appellant
claimed that the probative value of State's Exhibits 131-140 was "greatly
outweighed by the prejudicial impact" on the jury. The prosecution
responded that out of many autopsy photographs he had selected a
few that would most aid the medical examiner "in her testimony, as
well as, aid the jury." The medical examiner informed the trial
court that the photographs were "necessary and represent[ed] the
injuries that were seen at the time of the autopsy." Applying the
actual standard set out in Rule 403, the trial court overruled
appellant's objection after finding that the probative value of
the photographs was "not substantially outweighed by the danger of
COURT]: And, for the record, Mr. Tokoly, are there other autopsy
[THE PROSECUTION]: Yes,
Your Honor, there are.
[THE COURT]: And, how
many of them are there?
[THE PROSECUTION]: I
would have to go and make account of the rest of those. There are
a considerable number more than the ones that I have selected for
offering before the jury. If the Court wants me to, I can do that?
[THE COURT]: No. No, I
am just really trying to find out if you've gone through all of
the autopsy photos and determined which ones show the wounds-the
different wounds that she's described?
[THE PROSECUTION]: I
have, Your Honor, to the best of my knowledge and recollection.
And, I have selected those that the Court has before her, as being
the most representative of the wounds that they seek to show. And,
as well, that I believe that they explain those wounds in a way
that will aid the Doctor most in her testimony, as well as, aid
the jury. And so, I have gone through a selection process with a
view toward doing that, as well as, their relevance.
[THE COURT]: And, Dr.
Urban, you've gone through and looked at State's Exhibit 131 and
through 140, is that correct?
[THE COURT]: And, is
there any photograph among these that is duplicitas [sic] of
another photograph of these?
[MEDICAL EXAMINER]: I
think they are all necessary and represent the injuries that were
seen at the time of the autopsy.
[THE COURT]: Mr. Huff,
your objections to State's Exhibits 131 through 140 are overruled.
The Court finds that the probative value of State's Exhibits 131
through 140 is not substantially outweighed by the danger of
unfair prejudice. Therefore, the Court overrules your objection.
The record further
reflects that the medical examiner used the photographs to explain
her testimony. For example,
Q. [PROSECUTION]: Now,
with regard to State's Exhibit 131, can you see that, Dr. Urban?
A. [THE MEDICAL
Q. And, can you tell
the jury what State's Exhibit 131 portrays?
A. This is an overall
photograph showing the upper half of the victim's body. And in
particular, in this photograph you can see the first two gunshot
wounds that I described. Mainly, gunshot wounds number one and
Q. All right. And, can
you point to those on State's Exhibit 131, please?
A. They are seen here.
The trial court did
not abuse its discretion to admit the autopsy photographs because
they helped explain the medical examiner's testimony describing
the victim's various wounds for which appellant is responsible.
See Newbury v. State,
slip op. at 31 (Tex.Cr.App. No. 74,308, delivered April
Point of error eleven is overruled.
In point of error
twelve, appellant claims that "the trial court erred in allowing
the State to present evidence of extraneous offenses that were not
proved beyond a reasonable doubt in the punishment stage of trial."
In his brief, appellant asserts that he objected to evidence of
extraneous offenses in part because this evidence "would not be
proved beyond a reasonable doubt." The record, however, does not
support this assertion. It reflects that appellant made the
following objection to the introduction of extraneous offenses.
[THE DEFENSE]: Your
Honor, with regard to the certified copies and to the proper
extraneous offenses, the Defense makes the following objections.
First of all, to the extent that any of these extraneous offenses
include offenses which may have occurred when the Defendant was a
juvenile, that is under the age of seventeen. We object for the
reason, that the introduction into evidence of juvenile offenses
violate our client's right to Due Process of Law pursuant to the
Equal Protection Clause-pursuant to the Due Process and Equal
Protection Laws of the United States Constitution and the Due
Course of Law Provisions of the Constitution of the State of
Texas. In addition, we would object to any of the offenses offered
for which there has not been a final judgment, for the reason that
such offenses have not been proved in a court of law and the
introduction into evidence of such offenses at this stage of the
trial, even if the court were to instruct the jury that they have
to be proved beyond a reasonable doubt, would cause the Defendant
to be denied Due Process of Law pursuant to the United States
Constitution. And in addition, it would deprive the Defendant of
Due Course of Law pursuant to the Constitution of the State of
Texas. We further would object to any of the offenses that maybe
[sic] admitted by the State to the extent they do not show, that
they do not reflect upon any special issue that should be answered
by the jury. Particularly, with regard to the unauthorized use of
a motor vehicle, the evading arrest and the high speed chase. We
submit to the Court, that such offenses bear little relevance, if
any, to the first special issue of potential future dangerousness
and that they are not acts of violence. And, that the probative
value of such offenses is greatly outweighed by the prejudicial
effect, the introduction of such offenses would have on the jury.
And, this would be-this would be to such an extent that it would
be a Due Process violation under the Fourteenth Amendment to the
United State's [sic] Constitution and the Due Course of Law
Provisions of the State of Texas. And, for all these reasons, we
object to the introduction of these extraneous offenses, Your
[THE COURT]: Your
objections are overruled. The court finds that the probative value
of this proffer-the evidence as stated by [the State] in his
proffer, it is not substantially outweighed by the prejudicial
effect, and the Court will admit the same.
We will assume that
appellant preserved the claim that he asserts on appeal. This
Court's assessment of the record from the punishment phase
reflects that the State "clearly proved," through certified court
records and live testimony, appellant's commission of various
adjudicated and unadjudicated extraneous offenses dating back to
when appellant was a juvenile. See Hughes v. State, 24
S.W.3d 833, 843 (Tex.Cr.App), cert. denied, 121 S.Ct. 430 (2000) (when
at punishment phase of capital murder trial the state relies on
evidence of defendant's commission of extraneous offenses, state
must "clearly prove" that the defendant committed these extraneous
offenses). Point of error twelve is overruled.
In point of error
thirteen, appellant claims that "the trial court erred in allowing
the State to use the juvenile records against appellant as a
violation of due process and equal protection." This did not
violate due process or equal protection principles. See Corwin
v. State, 870 S.W.2d 23, 36-37 (Tex.Cr.App. 1993), cert.
denied, 115 S.Ct. 95 (1994) (use of juvenile misconduct as
aggravating factor in capital punishment proceeding did not
violate due process or Eighth Amendment principles). Point of
error thirteen is overruled.
In point of error
fourteen, appellant claims that "the trial court erred in
overruling appellant's motion to exclude evidence of unadjudicated
extraneous offenses at the punishment stage of the trial."
Appellant claims that well-settled jurisprudence upholding the
admissibility of this evidence at a capital sentencing proceeding
"has done so without an analysis of the proclauses of both the
state and federal constitutions." See, e.g., Hughes, 24
S.W.3d at 842; Corwin, 870 S.W.2d at 36 n.18; Milton
v. State, 599 S.W.2d 824, 827 (Tex.Cr.App. 1980), cert.
denied, 101 S.Ct. 3022 (1981). In support of this claim, appellant
relies on a United States Supreme Court decision on the
admissibility of victim-impact evidence, (5)
which the United States Supreme Court has since overruled.
(6) We decline to revisit well-settled jurisprudence
upholding the admissibility of evidence of unadjudicated
extraneous offenses at a capital sentencing proceeding. Point of
error fourteen is overruled.
In point of error
fifteen, appellant claims that the death penalty has been
unconstitutionally imposed upon him in violation of the United
States Supreme Court's decision in Atkins v. Virginia
because the State made no affirmative showing that appellant is
not mentally retarded. See Atkins v. Virginia, 122 S.Ct.
2242, 2247-52 (2002) (Eighth Amendment prohibits execution of
mentally retarded people). Neither Atkins nor our case-law
applying it require the State to affirmatively show that a capital
murder defendant is not mentally retarded. See generally id.;
Ex parte Briseno,
(Tex.Cr.App., No. 29,819-03, delivered February 11, 2004).
Point of error fifteen is overruled.
In points of error
sixteen, twenty-three, twenty-four, and twenty-seven, appellant
claims that Texas death-penalty law violates the state and federal
constitutions because it simultaneously restricts and allows
unlimited or "open-ended" juror discretion to impose the death
penalty. In support of these claims, appellant relies on, and
quotes extensively from, former Justice Blackmun's dissenting
opinion in Callins v. Collins, 114 S.Ct. 1128-38 (1994) (Blackmun,
J., dissenting). This Court has rejected these claims. See
Turner v. State, 87 S.W.3d 111, 118 (Tex.Cr.App. 2002), cert.
denied, 123 S.Ct. 1760 (2003); Callins, 114 S.Ct. at
1127-28 (Scalia, J., concurring). Points of error sixteen, twenty-three
and twenty-four are overruled.
In point of error
seventeen, appellant claims that Texas death-penalty law violates
the Supreme Court's decision in Penry v. Johnson because
"the mitigation special issue sends mixed signals to the jury
thereby rendering any verdict reached in response to that special
issue intolerable and unreliable." See generally Penry v.
Johnson, 121 S.Ct. 1910 (2001) (Penry II). This
Court has rejected this claim. See Jones v. State, 119
S.W.3d 766, 790 (Tex.Cr.App. 2003). Point of error seventeen is
In points of error
eighteen, nineteen, and twenty, appellant claims that Texas death-penalty
law violates the state and federal constitutions because it
implicitly puts the burden on appellant to prove the mitigation
special issue rather than "requiring the State to prove the
absence of sufficient mitigating circumstances beyond a reasonable
doubt." In point of error twenty-six, appellant claims that Texas
death-penalty law violates various federal constitutional
provisions because it fails to place the burden of proof on the
State "regarding aggravating evidence" in the mitigation special
issue. This Court has rejected these claims. See Blue v. State,
125 S.W.3d 491, 500-01 (Tex.Cr.App. 2003) (neither party bears the
burden of proof at punishment on the mitigating evidence special
issue). Points of error eighteen through twenty and twenty-six are
In point of error
twenty-one, appellant claims that the "12/10" rule violates
various federal constitutional provisions. This Court has rejected
this claim. See Blue, 125 S.W.3d at 505; Turner,
87 S.W.3d at 118. Point of error twenty-one is overruled.
In point of error
twenty-two, appellant claims that Texas death-penalty law violates
various federal constitutional provisions by failing to define the
terms "probability," "continuing threat to society," and "criminal
acts of violence." This Court has rejected these claims. See
In point of error
twenty-five, appellant claims that Texas death-penalty law is
unconstitutional because it "fails to require the issue of
mitigation be considered by the jury." Appellant seems to argue
that Texas death-penalty law is unconstitutional because it does
not "mandate consideration of mitigating evidence." We have
rejected this claim. See McFarland v. State, 928 S.W.2d
482, 497-98 (Tex.Cr.App. 1996), cert. denied, 117 S.Ct. 966 (1997)
(there is no per se evidence that a juror must view as
having definitive mitigating effect). Point of error twenty-five
In point of error
twenty-eight, appellant claims that Texas death-penalty law
violates various federal constitutional provisions because it does
not permit "meaningful appellate review." We have rejected this
claim. See Sells v. State, 121 S.W.3d 748, 767-68 (Tex.Cr.App.),
cert. denied, 124 S.Ct. 511 (2003). Point of error twenty-eight is
In point of error
twenty-nine, appellant claims that the trial court should have
quashed his indictment because of the "enumerated constitutional
defects" in Texas death-penalty law. And, in points of error
thirty and thirty-one, appellant claims that the cumulative effect
of the "above-enumerated constitutional violations" violates the
state and federal constitutions. These claims are without merit.
See Turner, 87 S.W.3d at 118. Points of error twenty-nine
through thirty-one are overruled.
The judgment of the
trial court is affirmed.
Delivered: June 30,
We note that Fletcher
stated during voir dire that she could be "open to the possibility
of a life sentence even on a dangerous police officer killing."
See Green v. State, 934 S.W.2d 92, 105 n.6 (Tex.Cr.App.
1996), cert. denied, 117 S.Ct. 1561 (1997) (constitution does not
require that jurors consider any particular evidence to be
Article 38.22, sets
out the state-law requirements for the admission into evidence of
various statements of an accused as a result of "custodial
Hall v. State,
67 S.W.3d 870, 874-75 (Tex.Cr.App.), cert. granted, judgment
vacated, and case remanded here for further consideration [in
light of Atkins v. Virginia, 122 S.Ct. 2242 (2002)],
Hall v. Texas, 123 S.Ct. 70 (2002).
In his brief,
appellant complains about the admission into evidence of State's
Exhibits 132-140. It is not clear whether he also complains about
the admission into evidence of State's Exhibit 131.
See Booth v.
Maryland, 107 S.Ct. 2529 (1987).
See Payne v.
Tennessee, 111 S.Ct. 2597, 2611 (1991) overruling Booth.
Dallas Policeman Chris James,
brutally gunned down