In the Court
of Criminal Appeals of Texas
Douglas Alan Feldman,
The State of Texas
Appeal from Dallas County
delivered the opinion of the Court, joined by KELLER, P.J.,
MEYERS, PRICE, WOMACK, KEASLER, HERVEY and HOLCOMB, JJ.
JOHNSON, J. concurs.
O P I N I O N
We grant rehearing on our own motion and withdraw our prior
opinion. Appellant was convicted of capital murder in August 1999.
Tex. Penal Code Ann.§ 19.03(a). Pursuant to the jury's answers to
the special issues set forth in Texas Code of Criminal Procedure
article 37.071 §§ 2(b) and 2(e), the trial judge sentenced
appellant to death. Art. 37.071§ 2(g).
(1) Direct appeal
to this Court is automatic. Art. 37.071§ 2(h). Appellant raises
twenty-one points of error but does not challenge the sufficiency
of the evidence at either stage of trial. Appellant's points of
error will be addressed in the chronological order of trial, and
the facts will be set out only as necessary to address those
points. We affirm.
CHALLENGES FOR CAUSE
In his ninth,
tenth, and eleventh points of error, appellant complains about the
trial court's failure to grant his challenges for cause to
venirepersons G. Henry, D. Garcia, and R. Martinez, respectively.
Specifically, he complains that each had a bias against some phase
of the law upon which he was entitled to rely. Art. 35.16(c)(2).
error on denied challenges for cause, an appellant must
demonstrate on the record that: 1) he asserted a clear and
specific challenge for cause; 2) he used a peremptory challenge on
the complained-of venireperson; 3) all his peremptory challenges
were exhausted; 4) his request for additional strikes was denied;
and 5) an objectionable juror sat on the jury. Green v. State,
934 S.W.2d 92, 105 (Tex. Crim. App. 1996), cert. denied,
520 U.S. 1200 (1997). The record in this case shows that appellant
exhausted all fifteen of his peremptory challenges, requested and
received an additional challenge, used that challenge, and again
requested, but was denied, further challenges. Appellant then
objected to the seating of the twelfth juror, thereby preserving
any error for review on appeal.
trial judge errs in overruling a challenge for cause against a
venireperson, the defendant is harmed if he uses a peremptory
strike to remove the venireperson and thereafter suffers a
detriment from the loss of the strike. Demouchette v. State,
731 S.W.2d 75, 83 (Tex. Crim. App. 1986), cert. denied,
482 U.S. 920 (1987). Because the record reflects that appellant
received an extra peremptory challenge in addition to the fifteen
he was granted by statute, appellant can only demonstrate harm by
showing that at least two of the complained-of challenges
were erroneously denied. Penry v. State, 903 S.W.2d 715,
732 (Tex. Crim. App.), cert. denied, 516 U.S. 977 (1995);
Martinez v. State, 763 S.W.2d 413, 425 (Tex. Crim. App.
reviewing a trial court's decision to grant or deny a challenge
for cause, we look at the entire record to determine if there is
sufficient evidence to support the court's ruling. Patrick v.
State, 906 S.W.2d 481, 488 (Tex. Crim. App. 1995), cert.
denied, 517 U.S. 1106 (1996). We give great deference to the
trial court's decision because the trial judge is present to
observe the demeanor of the venireperson and to listen to his tone
of voice. Id. Particular deference is given when the
potential juror's answers are vacillating, unclear or
contradictory. King v. State, 29 S.W.3d 556, 568 (Tex.
Crim. App. 2000).
may properly challenge any prospective juror who has a bias or
prejudice against any phase of the law upon which he is entitled
to rely. Art. 35.16(c)(2). The test is whether the bias or
prejudice would substantially impair the prospective juror's
ability to carry out his oath and instructions in accordance with
law. See, e.g., Patrick, 906 S.W.2d at 489; Hughes v.
State, 878 S.W.2d 142, 148 (Tex. Crim. App. 1992). Before a
prospective juror can be excused for cause on this basis, however,
the law must be explained to him and he must be asked whether he
can follow that law regardless of his personal views. Jones v.
State, 982 S.W.2d 386, 390 (Tex. Crim. App. 1998), cert.
denied, 528 U.S. 985 (1999).
In point of error nine, appellant complains
about prospective juror G. Henry. Specifically, he complains that
the trial court erred in denying his challenge to Henry because
the prospective juror indicated that: 1) he would automatically
answer the future dangerousness issue "yes" based upon his finding
of guilt; and 2) he would be more inclined to believe a police
officer's testimony over that of a lay witness. Article 37.071§
2(c), requires the State to prove the future dangerousness and "anti-parties"
special issues beyond a reasonable doubt. Any
veniremember who would automatically answer either of those
special issues in the affirmative or who would place the burden of
proof on the defense is challengeable for cause under Article
35.16(c)(2) for having a bias or prejudice against a law
applicable to the case upon which the defense is entitled to rely.
Ladd v. State, 3 S.W.3d 547 (Tex. Crim. App. 1999),
cert. denied, 529 U.S. 1070 (2000). Further, a juror who
cannot impartially judge the credibility of the witnesses is
challengeable for cause for having a bias or prejudice in favor of
or against the defendant. Art. 35.16(a)(9); see also Jones v.
State, 982 S.W.2d 386, 389 (Tex. Crim. App. 1998), cert.
denied, 528 U.S. 985 (1999). We must review the entirety of
Henry's voir dire to determine whether there is sufficient
evidence to support the court's determination.
The record shows that the prosecutor began
Henry's individual voir dire by explaining the process followed at
trial and the State's burden of proof. The prosecutor then
explained that the procedure at punishment was not to have the
jury vote for life or death, but rather to pose to the jurors two
questions which they would answer based upon the evidence
presented at trial. The prosecutor further explained that the
court would then assess punishment based upon the jury's answers
to those questions.
As he was explaining the process to Henry, the
prosecutor emphasized that answering the future dangerousness
issue required a different analysis than finding a defendant
guilty. He also commented that finding a person guilty did not
mean that a juror should then automatically answer the future
dangerousness question "yes." Henry indicated that he understood
this concept. During later questioning, Henry again agreed that a
juror would have to listen to all of the evidence presented before
making a decision on the punishment questions.
During his questioning, however, defense
Now, I want you to assume for a minute that
you're sitting on this jury. Okay. I want you to assume for a
minute that the State of Texas has proved to you what's on that
indictment in front of you, that this man has knowingly and
intentionally taken the life of not one person but two people
without legal justification or excuse and he either did it one of
two ways, either during the same transaction or the same course of
conduct or scheme.
* * *
Now, when you look at special issue number one,
Mr. Henry, having that type of evidence brought to you that
convinces you beyond all reasonable doubt that he is guilty of the
indictment, do you know how to answer question number one if
you've heard that type of evidence?
Given these facts, Henry responded that he
would answer the future dangerousness question "yes." Soon after
this exchange, defense counsel stated, "The law looks at it a bit
differently" and he explained:
Some people say, well, Mr. Oatman, maybe I'll
keep an open mind to the extent that if you, Mr. Oatman, prove to
me that he's not a future threat even though he did this, I might
be willing to change my mind. Would that be a fair statement?
To this question, Henry responded, "Yes."
Defense counsel subsequently asked: "[W]ould it be a fair
statement to say if you found that indictment to be true beyond
all reasonable doubt that question number one is going to be yes
unless I or Mr. Huff or the defense can prove to you that he's not
a future threat?" Henry answered, "Yes."
On redirect, the prosecution broached the
Q. [Y]ou understand how the law presumes that
question [future dangerousness] to be answered no.
A. Yes, sir.
Q. Okay, just like a person accused of a crime
is presumed to be innocent, it's up to us to prove that he isn't
innocent. That question is presumed that, even though a person is
found guilty of capital murder, that he's not going to be a
continuing danger. We have to prove to you that he is.
Q. Okay. It can't be an automatic yes answer.
Q. I know you've heard that a lot of people
feel that, you know, if you were to prove a person guilty of
killing two people, that they would automatically answer that yes.
But people that would automatically answer yes are not going to be
qualified for the jury, okay, because the law requires you, after
you find a person guilty, to sort of step back, take a breather,
come to a stop at this stop sign, and reconsider all the evidence
that you've heard both from the first part and then in the second
part of the trial before you answer that question. And if you're
not convinced beyond a reasonable doubt, you know, you may have a
situation here where - again, some of the examples are extreme.
But you may have a situation where, yeah, a person did knowingly
and intentionally kill two people during a liquor store robbery.
But once they came out, say the police shot them and paralyzed
them. Well, they are guilty of killing two people, but is that guy
going to be any type of a continuing danger to society? Don't
Q. So you see that there are situations -
Q. - that come up like that.
On re-cross by defense counsel, the following
Q. If they prove to you with the kind of
evidence and quality of evidence that convinces you beyond all
reasonable doubt that that indictment is true, if you know that
much about an individual, you're going to know enough about him to
answer question number one yes; is that right?
A. That's what I said.
Q. I'm sorry?
A. I said yes.
Q. And you still feel that way?
A. That's not the law, though, I mean, but
that's the way I feel. I'm just saying how I feel.
* * *
Q. And that's what I need to know is, are you
going to - The way you personally feel about this, Mr. Henry, is
there any way that you're going to be able to set aside your
A. Yes, sir. I've got to go with the law, I
Q. Okay. Tell me how you would ever answer
special issue number one no when you have found beyond a
reasonable doubt he did what's on the indictment.
A. I don't know. I would have to hear it. I
mean I don't know.
Q. Well, because the only thing you've told me
was, well, Mr. Oatman, if you proved it to me, it should be no
A. Right. I mean I'm sure something will come
up with witnesses or something. I mean I would just have to hear
it, I mean.
The proponent of a challenge for cause has the
burden of establishing his challenge is proper. See, e.g.,
Howard v. State, 941 S.W.2d 102, 128 n.2 (Tex. Crim. App.
1996); Harris v. State, 784 S.W.2d 5, 25 (Tex. Crim. App.
1989); see also Colella v. State, 915 S.W.2d
834, 846 (Tex. Crim. App. 1995)(Clinton, J., dissenting). The
proponent does not meet his burden until he has shown that the
venireman understood the requirement of the law and could not
overcome his prejudice well enough to follow it. Id.
Although Henry initially indicated that he
would answer the special issue "yes" if he found the allegations
in the indictment to be true, and then said that he would require
a defendant convicted of a multiple homicide theory of capital
murder to prove that he was not a future danger, he changed his
response after the parties explained the law, and he maintained
that he would set aside his personal beliefs and follow the law.
And in response to the State's questioning, Henry indicated that
there were circumstances in which he could find that such a
defendant did not pose a future danger. The trial court was in a
position to evaluate Henry's responses and was entitled to believe
that he could follow the law.
With respect to Henry's opinion regarding the
credibility of police officer witnesses, the record shows that
Henry stated that he would "lean towards" believing an officer
over a lay person. However, Henry also stated during later
questioning that he would have to see both witnesses on the stand.
Appellant is entitled to jurors who will be genuinely open-minded
and subject to persuasion, with no extreme or absolute positions
regarding the credibility of any witness. Jones, 982 S.W.2d
at 389. That Henry was simply more or less skeptical of a certain
category of witness did not make him subject to a challenge for
Looking at the entirety of the voir dire, we
hold that the trial judge did not abuse his discretion in denying
appellant's challenge for cause to veniremember Henry.
Point of error nine is overruled.
Appellant asserts in his tenth point of error
that the trial court erroneously denied his challenge for cause to
venireperson D. Garcia. Appellant complains that Garcia, like
Henry, indicated her bias against the law when she stated that a
guilty verdict would automatically lead her to answer the future
dangerousness issue affirmatively. Appellant further complains
that Garcia would require him to produce evidence of his innocence
Looking at the record of Garcia's voir dire, we
note that the judge and the prosecutor instructed Garcia on the
procedure involved in a capital case; Garcia said that she could
follow that procedure. During the State's questioning, the
prosecutor again explained the punishment questions and emphasized
that a juror must consider those questions with an open mind and
answer them according to the evidence. Garcia agreed that she
would consider all of the facts and circumstances before answering
the future dangerousness question.
during questioning by defense counsel, Garcia stated that killing
two people during the same transaction or course of conduct was an
especially heinous crime in her opinion, and that death was the
appropriate penalty. Upon clarification by the prosecutor, Ms.
Garcia said that she thought that the defense attorney was asking
her about her reasoning process if "there was already evidence to
prove" future dangerousness. In a colloquy that followed, she
reiterated that she would keep an open mind on the future
A. So that's why I said yes to the death
penalty. But if, okay, he's killed two people, but yet, at this
point right now I don't know any evidence, I can say, I can answer
either way, yes or no.
* * *
But I don't automatically say kill, I mean.
Q. Okay. That's exactly what the law
contemplates, and I wanted to be sure where you're coming from.
Q. So you're not one of those that says
automatically kill him because I've already -
A. Because he killed two people, no.
Depending upon who asked the question, Garcia
vacillated on whether she would return an affirmative answer to
the future dangerousness issue based solely upon the fact that the
defendant was found guilty of two murders. When told by the
prosecution that the law required her to keep an open mind, she
maintained that she would not automatically answer the future
dangerousness issue "yes" in a double murder situation. The trial
court was in a position to view her testimony and was entitled to
believe that she could follow the law.
With regard to appellant's assertion that
Garcia would require him to produce evidence of his innocence, the
record reveals that Garcia did indeed indicate that she thought
appellant should bring forth such proof. However, when the law was
explained to her in a way that she could understand, she admitted
that she had been confused and said that she could follow the law
requiring the State to prove the defendant's guilt.
Given the record, appellant has failed to meet
his burden of showing that the venireperson had a bias or
prejudice that would substantially impair her ability to carry out
her oath and instructions in accordance with law. See
Hernandez, 757 S.W.2d at 753. The trial judge did not abuse
his discretion in denying appellant's challenge for cause to
veniremember Garcia. Point of error ten is overruled.
Because appellant has failed to show that at
least two of his complained-of challenges for cause were
erroneously denied, he cannot show harm on appeal. Penry,
and Martinez, both supra. Point of error
eleven is overruled.
Appellant complains in points of error twelve
and thirteen that the trial court erred in granting the State's
challenge for cause to veniremember D. Dreifke in violation of
Article 35.16 because the State failed to state the reason for its
challenge and because the venireperson never said that she could
not follow the law. In point fourteen, appellant claims that
Dreifke was improperly challenged based upon her views against the
death penalty. See Wainwright v. Witt, 469 U.S. 412
With regard to points twelve and thirteen, even
assuming that the trial court erred in its application of Article
35.16(b)(3), appellant has not shown that the error deprived him
of a lawfully constituted jury. Without such a showing, reversal
is not required. Jones v. State, 982 S.W.2d 386, 394 (Tex.
Crim. App. 1998), cert. denied, 528 U.S. 985 (1999).
Points of error twelve and thirteen are overruled.
On the other hand, whether a venireperson was
properly challenged based upon her views of the death penalty is a
matter of constitutional dimension and requires a different
analysis. See Jones, 982 S.W.2d at 390-91. Under
Wainwright v. Witt, 469 U.S. 412 (1985), a venireperson may
be excluded for cause consistent with the Sixth Amendment to the
United States Constitution when his views on capital punishment
are such that they would "prevent or substantially impair the
performance of his duties as a juror in accordance with his
instructions and his oath." Clark v. State, 929 S.W.2d 5,
6-7 (Tex. Crim. App. 1996), cert. denied, 520 U.S. 1116
(1997); Vuong v. State, 830 S.W.2d 929, 942 (Tex. Crim.
App.), cert. denied, 506 U.S. 997 (1992); Moody v.
State, 827 S.W.2d 875, 888 (Tex. Crim. App.), cert.
denied, 506 U.S. 839 (1992). However, prospective jurors may
not be excused merely because their beliefs about the death
penalty might influence the decision-making process. Clark,
supra. In reviewing such an issue, we give deference to the
trial court's decision to exclude a prospective juror and will
reverse only for an abuse of discretion. See Rocha v. State,
16 S.W.3d 1, 6 (Tex. Crim. App. 2000). Furthermore, we will uphold
the trial court's decision when a prospective juror's answers are
"vacillating, unclear, or contradictory." Id.
Approximately a month prior to Dreifke's
individual questioning, the trial judge very briefly explained to
the entire venire panel the procedural sequence of a death penalty
case. On the day that Dreifke appeared for individual examination,
the judge first spoke to the group of veniremembers scheduled for
questioning that day and explained the process more in depth. The
judge stressed to the veniremembers that a Texas jury is never
required to assess a sentence of death or life imprisonment.
Rather, the jury would be required to answer two questions, and
the answers to those questions would dictate to the judge what
punishment should be assessed. The judge then paraphrased the two
questions the jury would be required to answer.
At the outset of Dreifke's individual
questioning, the prosecutor stressed the seriousness of the
State's position in asking for the death penalty. He then asked
Dreifke in a variety of ways whether she thought that she was an
individual who could participate in such a case knowing that the
ultimate result might be the execution of another human being. To
each question, Dreifke responded that she could serve on such a
jury. As the questioning continued, Dreifke noted that she had
started thinking about how such a case would affect her, for
example, whether it might scare her or cause her to have recurring
dreams. However, she maintained that she "could still answer the [punishment]
questions in such a way that would result in the execution of
another human being[.]" On the other hand, Dreifke also maintained
that she thought that she would have doubts about whether she
could do the job entrusted to her.
Finally, the prosecutor described the actual
procedure involved when a person is executed - from the person's
life in a small cell to the process of lethal injection. After he
finished his explanation, the prosecutor again asked Dreifke
whether she could participate in this process. At this time, the
venireperson answered that she did not think that she could and to
do so would go against her conscience.
The prosecutor then passed the venireperson and
appellant said that he had no questions to ask her. After Dreifke
had stepped out of the room, the prosecutor challenged her for
cause and the trial judge granted the challenge. Appellant's only
response was, "Note our exception, Your Honor."
Because Dreifke vacillated on her ability to
follow the law and ultimately told the court that she was not sure
whether she could perform the duty entrusted her, the trial judge
was within his discretion in determining that her views on capital
punishment would have prevented or substantially impaired the
performance of her duties as a juror in accordance with her
instructions and her oath. Wainwright, supra; see also Rocha,
16 S.W.3d at 6; Colburn v. State, 966 S.W.2d 511, 518 (Tex.
Crim. App. 1998). Point of error fourteen is overruled.
In his first two points of error, appellant
complains that the trial court erred in refusing to instruct the
jury on the lesser-included offense of murder. He asserts that
this violated Article 37.08 of the Texas Code of Criminal
Procedure and his due process rights under the Fourteenth
Amendment to the United States Constitution.
To determine whether a charge on a lesser-included
offense should be given, this Court has implemented a two-step
test. See Aguilar v. State, 682 S.W.2d 556, 558 (Tex.
Crim. App. 1985); Royster v. State, 622 S.W.2d 442, 444 (Tex.
Crim. App. 1981) (plurality opinion). The first step is to decide
whether the offense is actually a lesser-included offense of the
Art. 37.09; see also, e.g., Rousseau v. State, 855 S.W.2d
666, 672 (Tex. Crim. App.), cert. denied, 510 U.S. 919
(1993); Aguilar, 682 S.W.2d at 558. Murder is a lesser-included
offense of capital murder. See Cardenas v. State, 30 S.W.3d
384, 392 (Tex. Crim. App. 2000); Moore v. State, 969 S.W.2d
4, 12 (Tex. Crim. App. 1998). Hence, the first prong of the test
The second step of the Aguilar/Rousseau
test requires that the record contain some evidence that would
permit a rational jury to find that the defendant is guilty
only of the lesser offense. Moore, 969 S.W.2d at 8;
Rousseau, 855 S.W.2d at 672. In other words, there must
be some evidence from which a rational jury could acquit the
defendant of the greater offense while convicting him of the
lesser-included offense. Moore, 969 S.W.2d at 8. The
evidence must establish the lesser-included offense as a valid
rational alternative to the charged offense. Wesbrook v. State,
29 S.W.3d 103, 113-14 (Tex. Crim. App. 2000), cert. denied,
121 S.Ct. 1407 (2001).
The evidence in the instant case showed that
during the late night hours of August 24, 1998, appellant was
riding his motorcycle down Highway 75 in Collin County. Appellant
was positioned in the right hand lane near the shoulder when
Robert Everett, traveling at least seventy to seventy-five miles
per hour in his eighteen-wheeler truck, suddenly passed appellant
and then moved into appellant's lane, passing only twelve to
eighteen inches from appellant's left hand. Appellant, initially
in fear for his life, became enraged and gave chase because he
felt that he "needed to stop that man." During the chase,
appellant took out a weapon and fired several rounds into the back
of Everett's trailer. When Everett continued driving, appellant
reloaded his gun, drove along side the truck's cab, and fired
several times directly at Everett, killing him.
After the shooting, appellant stopped for a
period of time
(6) in a mall
parking lot off the highway. He then rode back to where Everett's
truck had stopped to determine whether Everett was dead. Appellant
then headed for home. After riding approximately eleven miles,
however, appellant passed an Exxon service station where Nicolas
Velasquez, a tanker truck driver for Exxon, was refilling the gas
supply for the station.
(7) Velasquez had
just finished filling the ground tanks and was walking towards the
service station entrance when appellant drove into the station
area and shot Velasquez twice in the back, killing him. Appellant
finally drove home.
Over a week later, Antonio Vega was standing
outside a Jack-in-the-Box restaurant at 1:15 p.m. talking on a pay
telephone when appellant, driving a silver Land Rover, drove by
and opened fire, injuring Vega. A nearby witness noted appellant's
license number and reported the information to the police. When
officers apprehended appellant, they recovered a loaded nine-millimeter
weapon, an additional pistol magazine, a Glock pistol, seventy-five
hollow-point bullets, and one hundred ninety four round nose
bullets. Another loaded magazine was recovered from appellant's
pocket. Testing on the first weapon and on the spent shell casings
from the three crime scenes confirmed that this weapon had been
used at all three locations.
Appellant was indicted for killing Nicolas
Velasquez by shooting him with a firearm and, during the same
criminal transaction, killing Robert Stephen Everett by shooting
him with a firearm. In the alternative, appellant was indicted for
killing Nicolas Velasquez by shooting him with a firearm and,
during a different criminal transaction but pursuant to the same
scheme and course of conduct, killing Robert Stephen Everett by
shooting him with a firearm.
After his arrest, but prior to trial, appellant
admitted responsibility for the shootings in letters that he
mailed from jail to a police detective and to one of the
prosecutors working on the case. In the letter to the police
detective, appellant stated that the murders resulted from a
traffic altercation with Everett, "after which [appellant] erupted
in rage and subsequently committed the attacks[.]"
Appellant also testified at trial and admitted
shooting the victims. Appellant told the jury about the traffic
altercation with Everett and his decision to shoot Everett instead
of allowing him to go speeding down the highway. He noted that he
returned to Everett's truck because, "There was a part of me that
wanted to make sure Mr. Everett was dead." Even as he testified at
trial, appellant admitted that he was still angry about the
incident. He explained that he shot Velasquez because he saw him
standing beside an eighteen-wheeler, and "I exploded again in
Appellant was charged at trial with both
alternative theories alleged in the indictment and the jury found
him guilty "as charged in the indictment." See Tex. Penal
Code § 19.03(a)(7)(A) and (a)(7)(B). When the State has tried a
defendant on an indictment in which alternative theories of
capital murder are alleged, the defendant is entitled to a
requested lesser-included offense charge if a rational jury could
convict him only on the lesser-included offense after considering
each of the alternative theories of commission. See Arevalo v.
State, 970 S.W.2d 547, 548-49 (Tex. Crim. App. 1998).
Under the first theory alleged, the jury was
authorized to convict appellant if it found that he had murdered
both victims during the same criminal transaction. See
Tex. Penal Code § 19.03(a)(7)(A). Although the legislature did not
define the term "same criminal transaction" in the statute, this
Court has interpreted that phrase to mean "a continuous and
uninterrupted chain of conduct occurring over a very short period
of time . . . in a rapid sequence of unbroken events." Jackson
v. State, 17 S.W.3d 664, 669 (Tex. Crim. App. 2000); Rios
v. State, 846 S.W.2d 310, 311-312 (Tex. Crim. App. 1992),
cert. denied, 507 U.S. 1051 (1993); Vuong v. State,
830 S.W.2d 929, 941 (Tex. Crim. App. 1992), cert. denied,
506 U.S. 997 (1992).
At trial, the evidence showed that appellant
became enraged by Everett's driving and proceeded to chase him
down and shoot him. He then went to a parking lot for a while
before returning to the scene to see if his victim was dead. After
this, appellant, by his own claim, started to drive home. It was
only when he saw a tanker truck parked at a service station along
the way that appellant again lashed out in anger, killing another
person. The total amount of time between the two murders was
approximately 45 minutes. From this evidence, a rational juror
could have concluded that there was in fact a sufficient break
between the two murders such that they did not occur in a "sequence
of unbroken events." Hence, a rational jury could have acquitted
appellant of this theory of capital murder under these facts.
However, a finding that the murders could have
been committed during different criminal transactions does not
mean that the jury could have found appellant guilty only
of murder. The jury in the instant case was also authorized to
convict appellant of capital murder if it found that the murders
were committed during different transactions, but
pursuant to the same scheme or course of conduct. See Tex.
Penal Code § 19.03(a)(7)(B). Hence, to be entitled to a lesser-included
offense charge of murder in this case, appellant must also show
that the record contains some evidence that would have allowed a
rational jury to find that he did not murder Velasquez and Everett
pursuant to the same scheme or course of conduct. See Arevalo,
970 S.W.2d at 549 (to be entitled to lesser-included, defendant
must point to evidence that negates every alternate theory of
liability for the greater offense). Appellant agrees with this
proposition of law. His contention is that there was
some evidence from
which a rational jury could have concluded that the two murders
were not part of the same scheme or course of conduct.
This Court noted in Corwin v. State,
870 S.W.2d 23, 28 (Tex. Crim. App. 1993), cert. denied,
513 U.S. 826 (1994), that the sponsors of the bill that became
this penal provision intended subsection (B) to embrace "serial"
murders. The Revised Bill Analysis for the legislation gave as an
example of same scheme or course of conduct one who, "e.g. kills
all Senators over the course of a year for snubbing his
legislation." Id. The evidence in this case shows that
appellant became enraged because of a truck driver's behavior and
so he killed him. Appellant's own testimony then indicated that he
became enraged anew when he saw the second truck driver later that
same night and, therefore, he killed him. The jury was then
presented with evidence of a third attack a little more than a
week later on a person appellant thought was a truck driver.
Appellant points to his trial testimony that he
killed the first truck driver because that driver almost ran him
down, but that he had no motive at all for killing the second
truck driver. Therefore, he argues, his testimony of the second "motiveless"
murder is "some evidence" from which a rational trier of fact
could rationally conclude that these two murders were not
committed pursuant to the same scheme or course of conduct. We
disagree. The appellant did not dispute that he killed both truck
drivers in the same evening with the same gun while out on a
single car trip. He shot and killed the first truck driver with
four gunshots to the chest and back and the second victim with two
gunshots to the chest and back. He admitted that he shot the first
truck driver in a fit of rage for "what he did," and that when he
saw the second truck driver he "exploded in anger" again and drove
by and shot him as well.
Given this evidence, a rational jury could only
conclude that appellant's behavior in killing both truck drivers
was committed pursuant to the same over-arching objective or
motive and, hence, was committed pursuant to the same scheme or
course of conduct. See Corwin, 870 S.W.2d at 28. As such,
the jury could not have rationally acquitted appellant of capital
murder and convicted him only of murder. See Arevalo,
970 S.W.2d at 548-49; see also Wesbrook, 29 S.W.3d at
113-14; Moore, 969 S.W.2d at 8. Because appellant has
failed to satisfy the second prong of the Aguilar/Rousseau
test, the trial court did not err in refusing his request for a
lesser-included offense charge of murder. Appellant's
first two points of error are overruled.
EVIDENCE OF EXTRANEOUS ACTS
Appellant complains in his third, fourth, and
fifth points of error that the trial court erred by allowing the
State to introduce evidence during the guilt/innocence phase of an
unadjudicated extraneous offense that appellant committed just
over a week after the offense alleged in the indictment.
Specifically, appellant complains about testimony concerning the
aggravated assault of Antonio Vega.
Texas Rule of Evidence 404(b) provides that
evidence of other crimes, wrongs, or acts is not admissible to
prove a person's character or that a person acted in conformity
with that character. However, such evidence may be admissible for
other purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or
accident. Faced with an objection, the proponent of such evidence
must satisfy the trial court that the extraneous act has relevance
apart from its tendency to prove character conformity.
Santellan v. State, 939 S.W.2d 155, 168 (Tex. Crim. App.
1997); McFarland v. State, 845 S.W.2d 824, 837-838 (Tex.
Crim. App. 1992), cert. denied, 508 U.S. 963 (1993). If
the proponent succeeds in his task, then the trial court has
discretion to admit the evidence. Montgomery v. State,
810 S.W.2d 372, 388 (Tex. Crim. App. 1990) (op. on reh'g ). If,
however, the trial court determines that the proponent has not met
his burden or decides that the evidence has no relevance apart
from character conformity, then the evidence is not admissible,
and the trial court has no discretion in the matter. Id.
While the trial court may decide that the
evidence is admissible under Rule 404(b), it may nevertheless
exclude that evidence if it determines that the probative value of
the extraneous act evidence is substantially outweighed by unfair
prejudice. Tex. R. Evid. 403. However, the trial court need not
engage in this balancing test unless the opponent of the evidence
further objects based upon Rule 403. Montgomery and
McFarland, both supra. When the trial court balances
probativeness and prejudice, a presumption exists favoring
probative value. Montgomery, 810 S.W.2d at 389.
So long as the trial judge "operates within the
boundaries of [his] discretion," an appellate court should not
disturb his decision, whatever it may be. Montgomery, 810
S.W.2d at 390. In other words, as long as the trial court's ruling
is within the zone of reasonable disagreement, an appellate court
will not disturb that ruling. Montgomery, 810 S.W.2d at
Appellant conceded in the instant case that he
killed the two victims named in the indictment. However, he
disputed that he committed the murders in the same criminal
transaction or during the same scheme or course of conduct. In
presenting evidence about the Vega assault/attempted murder, the
State was able to present to the jury evidence that made the
existence of this fact more probable by revealing appellant's
common "anti-truck driver" motive or a common scheme behind the
Further, the record reveals that early in the
State's case-in-chief, the prosecutor read to the jury a letter
appellant had written and sent to Detective Phil Harding with the
Dallas Police Department. Appellant stated in this letter:
I am responsible for the criminal mischief
which occurred at Central Volkswagen on 8/23/98 (shooting of
windows & vehicles), as well as the shooting deaths (murder) of Mr.
Robert Stephen Everett (8/24/98) and Mr. Nicolas Velasquez
(8/25/99) [sic] as well as the attempted murder of Mr. Antonio
I have no excuse for my actions other than that
I was in a state of extreme emotional distress at the time. I had
an altercation in traffic with Mr. Everett, after which I erupted
in rage & subsequently committed the attacks mentioned above.
This admission, along with the minimal evidence
of the facts and circumstances of the Vega assault which the State
later admitted through the testimony of an eyewitness, made the
fact that the Everett and Velasquez murders were committed during
the same transaction or scheme or course of conduct more likely.
Hence, the evidence had relevance apart from character conformity,
and the judge acted within his discretion in allowing it.
While we recognize that evidence of an
extraneous offense will usually be somewhat prejudicial, we cannot
say, given the totality of the evidence in the instant case, that
the testimony was substantially more prejudicial than probative.
Because the trial judge was not outside the zone of reasonable
disagreement in allowing the testimony, we will not disturb his
ruling on appeal. Montgomery, supra. Points of
error three through five are overruled.
Towards the end of the guilt/innocence phase of
trial, appellant took the stand in his own defense. He now
advances in points of error six through eight that the trial court
erred in allowing the State to cross-examine him about extraneous
offenses which he committed more than twenty years before the
offense for which he was currently on trial. A defendant who takes
the witness stand may be cross-examined and impeached in the same
manner as any other witness. Huffman v. State, 746 S.W.2d
212, 219 (Tex. Crim. App. 1988). Indeed, a defendant may be
contradicted, impeached, discredited, attacked, sustained,
bolstered, made to give evidence against himself, cross-examined
as to new matters, and treated in every respect as any other
witness. Id. Furthermore, an appellant who "opens the
door" to otherwise inadmissible evidence risks having that
evidence admitted and used against him. However, the party
offering the evidence may not "stray beyond the scope of the
invitation." See Schutz v. State, 957 S.W.2d 52, 71 (Tex.
Crim. App. 1997).
In the instant case, the following exchange
occurred between appellant and his trial counsel:
[BY DEFENSE COUNSEL:]
Q. At some point in time the next day [the day
after the shootings for which appellant was indicted], you were
questioned by the Richardson Police Department; is that right?
A. I was.
Q. You had shaved your beard.
A. I had.
Q. Had you cut your hair?
Q. No doubt about it, you were trying to change
A. That's correct.
A. I've been in trouble before and I was
concerned that, you know, I was in serious trouble.
Q. Did you know you had done something wrong?
A. I felt that way, yes.
Before the prosecutor conducted cross-examination,
the court took a recess and discussed a motion in limine in which
defense counsel sought to limit questioning about matters not in
issue in the case. Specifically, counsel sought to prohibit the
State from asking appellant any questions likely or designed to
elicit testimony about extraneous offenses. The State specifically
sought to ask the defendant to "explain his statement to the jury
that he'd 'been in trouble before.'" The trial court overruled
defense counsel's objections at that time, instructed the
prosecutor to proceed with caution, and granted defense counsel a
continuing objection on the subject. A short way into cross-examination,
the prosecutor asked appellant:
[BY THE PROSECUTOR:]
Q. Now, earlier you told this jury here that
you'd been in trouble before; is that correct?
A. That's correct.
Q. Can you explain that for us?
A. I was arrested in 1978 on an aggravated
robbery charge in possession of narcotics. I was 19 years old. I
got a two-year sentence and served it, as well as a ten-year
probation which I served and discharged.
Upon further cross-examination, appellant told
the prosecutor and the jury about his juvenile arrests, an arrest
for driving while intoxicated when he was eighteen, running away
from home when he was young, forging credit card receipts and
selling marijuana when he was sixteen or seventeen, and an
aggravated robbery charge on his adult record.
Given the totality of the record, we conclude
that the trial court did not abuse its discretion in allowing this
testimony. See, e.g., Schutz, 957 S.W.2d at 71; Green
v. State, 934 S.W.2d 92, 102 (Tex. Crim. App. 1996), cert.
denied, 520 U.S. 1200 (1997); Norris v. State, 902
S.W.2d 428, 442 (Tex. Crim. App. 1995). The State's question
asking appellant to explain his previous statement about being in
trouble did not exceed the scope of the invitation appellant
initially gave. Furthermore, every time appellant volunteered
additional information, the State was justified in asking for
clarification. Appellant's sixth through eighth points of
error are overruled.
In his fifteenth point of error, appellant
complains that the trial court erred when it informed the jury
about the forty year minimum for parole eligibility if a life
sentence were assessed, but then further instructed the jury not
to consider that minimum in answering the future dangerousness
issue. See Art. 37.071 § 2(b). Appellant concedes that he
failed to object to these instructions, but argues that the
"error" caused him egregious harm, necessitating reversal under
Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1984).
This Court has repeatedly held that parole eligibility is not a
proper subject for the jury to consider at the sentencing phase of
a capital case. See, e.g., Colburn v. State, 966 S.W.2d
511, 516 (Tex. Crim. App. 1998); see also, Wesbrook v. State,
29 S.W.3d 103, 121 (Tex. Crim. App. 2000), cert. denied,
121 S.Ct. 1407 (2001). Even if we were to assume that the trial
court committed error, there is no possibility that the parole
instructions caused appellant egregious harm because parole was
not an issue applicable to appellant's case. See, e.g, Collier
v. State, 959 S.W.2d 621, 623 (Tex. Crim. App. 1997),
cert. denied, 525 U.S. 929 (1998). Point of error
fifteen is overruled.
CONSTITUTIONALITY OF ARTICLE 37.071
In his sixteenth point of error, appellant
contends that the trial court failed to define in the punishment
charge the terms "probability," "criminal acts of violence," and "continuing
threat to society." See Art. 37.071 §§ 2(b) and (e).
Appellant argues that this failure rendered the charge
This Court has held repeatedly that the trial
court need not define such terms because the jury is presumed to
understand them without instruction. See, e.g., Ladd v. State,
3 S.W.3d 547, 572-73 (Tex. Crim. App. 1999), cert. denied,
529 U.S. 1070 (2000). Appellant has given us no reason to revisit
these holdings. Point of error sixteen is overruled.
In his seventeenth, eighteenth, and nineteenth
points of error, respectively, appellant argues that the "12/10
Rule" of Article 37.071 §§ 2(d)(2) and 2(f)(2) is unconstitutional
and that the death penalty scheme allows the jury unlimited
discretion in violation of the federal and state constitutions. We
have previously addressed and rejected these contentions.
Appellant raises no new arguments here. See, e.g., Wright v.
State, 28 S.W.3d 526, 537 (Tex. Crim. App. 2000), cert.
denied, 121 S.Ct. 885 (2001); Shannon v. State, 942
S.W.2d 591, 600 (Tex. Crim. App. 1996); Lawton v. State,
913 S.W.2d 542, 558 (Tex. Crim. App. 1995), cert. denied,
519 U.S. 826 (1996). Points of error seventeen through
nineteen are overruled.
Appellant asserts in his twentieth and twenty-first
points of error that the "cumulative effect" of all of the above
errors denied him due process under the federal constitution and
due course of law under the Texas constitution. A number of errors
may be found harmful in their cumulative effect. Chamberlain
v. State, 998 S.W.2d 230, 238 (Tex. Crim. App. 1999),
cert. denied, 528 U.S. 1082 (2000). However, cumulative error
has not been shown here. See Wright, 28 S.W.3d at 537.
Points of error twenty and twenty-one are overruled.
We affirm the judgment of the trial court.
Delivered: February 20, 2002
1. Unless otherwise
indicated all future references to Articles refer to the Code of
2. The "anti-parties"
special issue is set out in art. 37.071,§ 2(b)(2):
[I]n cases in which the jury charge at the
guilt or innocence stage permitted the jury to find the defendant
guilty as a party under Sections 7.01 and 7.02, Penal Code,
whether the defendant actually caused the death of the deceased or
did not actually cause the death of the deceased but intended to
kill the deceased or another or anticipated that a human life
would be taken.
3. For example, when the
prosecutor asked Ms. Garcia if she could keep an "open mind as to
either option depending on the facts," she responded:
Well, I guess I have to know what led to all
this before I decide death or life.
. . .
I mean he just killed two people, but to me, I
don't automatically think he should die unless I hear all the
4. Article 37.09 defines a
An offense is a lesser included offense if:
it is established by proof of the same or
less than all the facts required to establish the commission of
the offense charged;
it differs from the offense charged only in
the respect that a less serious injury or risk of injury to the
same person, property, or public interest suffices to establish
it differs from the offense charged only in
the respect that a less culpable mental state suffices to
establish its commission; or
it consists of an attempt to commit the
offense charged or an otherwise included offense.
5. In Arevalo v. State,
943 S.W.2d 887, 889 (Tex. Crim. App. 1997), this Court explained
why the evidence raising a lesser-included must provide a viable
and rational alternative to the greater offense:
The second prong of the test preserves the
integrity of the jury as the factfinder by ensuring that the jury
is instructed as to a lesser included offense only when that
offense constitutes a valid, rational alternative to the charged
offense. If a jury were instructed on a lesser included offense
even though the evidence did not raise it, then the instruction "would
constitute an invitation to the jury to return a compromise or
otherwise unwarranted verdict."
6. The evidence showed that
the total elapsed time between the two murders was 45 minutes.
7. Appellant was apparently
in Dallas County at that time.
8. Under either theory,
appellant would be guilty of capital murder for killing two
different people under Tex. Penal Code §19.03(a)(7) either:
"during the same transaction; or
during different transactions but the murders
are committed pursuant to the same scheme or course of conduct."
9. As this Court explained
instant case, the State presented evidence on all three theories
of aggravation [from sexual assault to aggravated sexual assault],
and the jury charge required the jury to find only one of the
three to convict of aggravated sexual assault. If the evidence
was disputed on only one of those theories and the evidence on
the remaining two was uncontested, the jury could not rationally
find Appellant guilty only of the lesser. Therefore, we hold
that if sufficient evidence of more than one theory of the
greater offense is presented to allow the jury to be charged on
alternate theories, the second prong of the Royster/Aguilar
test is satisfied only if there is evidence which, if believed,
refutes or negates every theory which elevates the offense from
the lesser to the greater. See Schweinle v. State, 915
S.W.2d 17, 19-20 (Tex.Cr.App.1996). Only if every theory
properly submitted is challenged would the jury be permitted to
find the defendant guilty only of the lesser offense.
970 S.W.2d at 548-49.
10. Appellant testified
that he saw a diesel truck parked near where Vega was using the
phone. Therefore, appellant thought that he might be a truck
11. "Relevant evidence"
is evidence which has "any tendency to make the existence of any
fact that is of consequence to the determination of the action
more probable or less probable than it would be without the
evidence." Tex.R. Evid. 401. Evidence which is not relevant is
not admissible. Tex. R. Evid. 402.