Martin, Jerry Duane

TDCJ Number 999552
Date of Birth 03/28/1970
Date Received 02/17/2009
Age (when Received) 38
Education Level (Highest Grade Completed) 10th Grade
Date of Offense 09/24/2007
Age (at the time of Offense) 37
County Leon C/V from Walker
Race White
Gender Male
Hair Color Brown
Height 5' 9"
Weight 169 lbs.
Eye Color Brown
Native County Collin
Native State Texas

Prior Occupation:

Construction

Prior Prison Record:

Prior Prison Record: TDCJ # 585762, Dallas County, 10 yr sentence from Harris County for Theft of Property $750-$20,000; released to Shock Probation; returned under TDCJ # 795994, 50 yr sentence from Collin County for Attempted Capital Murder with a Deadly Weapon, Aggravated Assault with a Deadly Weapon and Failure to Appear; incarcerated at the time of this offense.

Summary of incident:

The subject and co-defendant were working in the field squad at the Wynne Unit. He took an officer's weapon, ran to a city parking lot and stole a City of Huntsville truck. The subject drove the truck into the horse of a female correctional officer causing her fall and resulting in her death.

Co-Defendants:

John Ray Faulk, Jr.

Race and Gender of Victim

One white female

Texas Department of Criminal Justice

Texas Attorney General

Tuesday, December 3, 2013

Media Advisory: Jerry Duane Martin Scheduled for Execution

AUSTIN – Pursuant to a court order by the 278th District Court of Walker County, Texas, Jerry Duane Martin is scheduled for execution after 6 p.m. on December 3, 2013.

In December 2009, Martin was convicted of capital murder and sentenced to death by a Walker County jury.

FACTS OF THE CASE

The Texas Court of Criminal Appeals described the facts of the crime as follows:

[Martin] was charged with capital murder, specifically, committing murder while escaping or attempting to escape from a penal institution.

The evidence at trial established that on September 24, 2007, [Martin] was an inmate incarcerated for a felony offense at the Texas Department of Criminal Justice (“TDCJ”) Wynne Unit located in Huntsville. He and fellow inmate John Falk were assigned to the same work squad that morning to hoe and aerate the onion patch. The Wynne Unit onion patch is outside the main perimeter fence of the prison and adjacent to the City of Huntsville Service Center (“Service Center”). The Service Center was, at that time, separated from prison property by only a chain-link fence in some portions and a barbed-wire fence in others.

Four squads had been turned out to work that day, each consisting of twenty inmates with a single armed guard on horseback. Each guard carried a .357 revolver with six bullets. An armed supervising sergeant accompanied the squads in the fields. Finally, a “high rider” also patrolled the squads. The high rider was another guard on horseback who patrolled outside the prison fence on Service Center property and acted as the “last line of defense” in the event of an escape attempt. The high rider carried a .357 revolver with six bullets and a .223 rifle with four rounds. The high rider that day was Officer Susan Canfield, an experienced rider and guard.

[Martin] was part of squad number five, which was assigned to work in the portion of the onion field closest to the Service Center. Officer Joe Jeffcoat oversaw [Martin’s] squad. Falk was assigned to the row in their squad's section farthest from the fence, and [Martin] voluntarily took the row next to him. Jeffcoat testified that [Martin] and Falk were friends and that they usually worked together. He also noted that he had never had any problems with the pair before that day.

After the squads had been working for a while, [Martin] approached Jeffcoat asked him to hold his watch because it had broken. Jeffcoat agreed. When [Martin] got about 20 feet from him, Jeffcoat heard something to his left; he turned to see Falk walking towards him from the other side. When he turned back towards [Martin], [Martin] was already at Jeffcoat's side reaching for his .357 revolver. [Martin] and Jeffcoat began struggling over the gun, and Jeffcoat yelled for help. Falk then started shoving Jeffcoat out of his saddle. [Martin] was able to get the gun as Jeffcoat came off his horse on top of him. Jeffcoat began to wrestle with [Martin], but Falk came around and [Martin] tossed the gun to him. Jeffcoat let go of [Martin] and started after Falk, but Falk pointed the gun at him. At this time, Jeffcoat heard his superior, Field Sergeant Larry Grissom, yell to get down, so he did.

[Martin] and Falk then fled through the barbed-wire fence and onto Service Center property. Grissom and the other guards focused on apprehending Falk because Falk had the gun. [Martin] ran off in another direction. Grissom fired twice at Falk, but Falk ran behind some equipment. Guards from two of the other squads also fired shots at Falk but to no avail.

At this point, the high rider, Canfield, engaged in a gun fight with Falk. Canfield advanced on Falk while firing at him with her revolver. When Canfield expended her bullets, Falk ran at her as she was trying to remove her rifle from its scabbard. The two engaged in a struggle for the weapon while Canfield attempted to turn her horse away from Falk. However, once Falk jabbed his stolen revolver in her ribs, Canfield ceased struggling and Falk took the rifle. Falk then backed away.

Meanwhile, during the gunfight, [Martin] ran to a truck parked outside the Service Center sign shop. Larry Horstman of the City of Huntsville sign shop testified that the truck was a one-ton, flat-bed pick-up truck with toolboxes on the side. He stated that he always parked the truck about 10 feet from the sign shop door and left the keys in it. Jeffcoat testified that he saw the truck parked in the same spot every time he was working in the onion field.

[Martin] got into the truck and sped straight towards Canfield. Horstman testified that he heard his truck take off “real fast.” Other witnesses testified that the truck was “floorboarded,” “going as fast as it could go,” “being revved at high rpms,” leaving acceleration marks as it hit Canfield and her horse just after Falk backed away. Canfield and the horse went up onto the hood of the truck. Canfield's back and shoulders hit the windshield and her head struck the roof. Canfield was then launched into the air and came down on her head, shoulder, and neck. There was no evidence [Martin] tried to brake before hitting Canfield or that the truck slid into her and her horse; however, he did turn toward the Service Center exit while, or immediately after, striking her with the truck. Witnesses also testified that there was enough room in the Service Center lot that [Martin] could have avoided hitting Canfield.

After striking Canfield and her horse, [Martin] stopped the truck and Falk ran to the passenger side and got in. Jeffcoat testified that they then “took off as fast as the truck could go.” Jay Miller, a fire hydrant technician with the Service Center, saw [Martin] take the truck and managed to follow it as it left the Service Center lot. Miller called 9–1–1 and remained on the phone during the chase. Miller testified that at one point the truck's passenger sat up in the windowsill of the truck and pointed a rifle at him. Miller further testified that the passenger fired at him, but his vehicle was not hit. Miller continued to chase them on and off the highway until the truck pulled into a parking lot and the inmates got out and ran into some nearby woods. Miller parked his vehicle to block the road and then chased the inmates on foot to see if they were going to come out on the other side of a fence at the bank next door. The police arrived at this time and Miller directed them towards the bank.

Walker County Deputy Brian Smallwood arrived at the bank to see [Martin] and Falk run to a red truck that was in the drive-thru lane. Falk entered through the driver's door and shoved the female driver over. [Martin], who now had the rifle, jumped into the bed of the truck. Huntsville Police Sergeant Ron Cleere also observed this and got out of his vehicle with his gun drawn, but the inmates drove off before he could attempt to stop them. Cleere fired at the truck's tires seven times hitting one of them, but the truck did not stop. Both Smallwood and Cleere pursued the red truck.

Falk drove the truck onto the interstate but exited after only 3/4 of a mile. He pulled onto a grassy field next to some woods because the right front tire was shredded. Smallwood pulled his car into a ditch 50 yards away from the red truck. [Martin] stood up in the bed of the truck and pointed the rifle at Smallwood. Smallwood heard a shot as he opened his door. Smallwood fired at [Martin] as [Martin] ran into the woods. Cleere arrived and fired at [Martin] as well. Falk got out of the truck and also ran for the woods. Cleere saw [Martin] again on the edge of the woods, using the base of a tree to steady the rifle. Cleere went to retrieve his own rifle from his car, but when he returned he did not see [Martin]. [Martin] then stood up and Cleere fired at him with his rifle, but [Martin] got away. When other officers arrived, they set up a perimeter around the wooded area. The owner of the truck was unharmed.

Huntsville Police Lieutenant Daryl Slaven apprehended Falk behind the Walmart on the other side of the wooded area. When Falk heard the police car, he stopped and put his hands in the air. The authorities searched for [Martin] in the wooded area on horseback and using dogs. The rifle was found lying in the woods with three rounds still in it. After approximately two hours, [Martin’s] boots and some clothing were found hidden in the dirt of a creek bed. [Martin] was eventually discovered hiding in a tree wearing only his underwear.

Dallas County Medical Examiner Tracy Dyer testified that Canfield died from a significant impact that caused an unsurvivable hinge fracture to her skull which went from ear to ear. Viewing photos of the damage to truck, Dyer opined that it would have taken a “significant amount of velocity” for Canfield's body to have caused the dent at top of the windshield. She noted that Canfield also sustained a depressed skull fracture as well as external injuries including bruising and lacerations to her head, hands, arms, trunk, and legs. Veterinarian Richard Posey testified that Canfield's horse had extensive injuries from a bullet wound, plus trauma to its left hip, scrapes on its hips and hock, and a swollen joint on its front leg from the impact. The horse had to be put down.

PROCEDURAL HISTORY

In December 2009, a jury found Martin guilty of the offense of capital murder. The jury answered the special issues submitted pursuant to Texas Code of Criminal Procedure Article 37.071, and the trial court, accordingly, set Martin’s punishment at death.

On Oct. 31, 2012, the Texas Court of Criminal Appeals affirmed Martin’s conviction and sentence on direct appeal.

On June 27, 2012, Martin filed an application for writ of habeas corpus in the convicting court; however, Martin expressed his desire to waive habeas review. On June 14, 2013, the trial court held a hearing to determine if Martin’s decision to waive appeal was intelligently and voluntarily made. The trial court concluded that Martin “made a knowing, voluntary, uncoerced intelligent decision to end his appeals, and it recommended that [Martin] be permitted to end all further habeas actions.”

The Texas Court of Criminal Appeals agreed with the trial court’s recommendation and dismissed Martin’s pending application, holding that all claims raised in that application, as well as any that could have been raised, were waived.

On Sept. 16, 2013, the 278th Judicial District Court of Walker County, Texas, set Martin’s execution date for Dec. 3, 2013.

Martin has not sought federal habeas review of his conviction and sentence, and has no appeal pending at this time.

PRIOR CRIMINAL HISTORY

Under Texas law, the rules of evidence prevent certain prior criminal acts from being presented to a jury during the guilt-innocence phase of the trial. Once a defendant is found guilty, however, jurors are presented information about the defendant’s prior criminal conduct during the second phase of the trial – which is when they determine the defendant’s punishment.

At the time he killed Canfield, Martin was serving a 50-year sentence for attempted capital murder, a 40-year sentence for another attempted capital murder, a 10-year sentence for aggravated assault, and a 10-year sentence for failure to appear.

The victims of the attempted capital murders and the aggravated assault were peace officers, and the facts of those crimes are as follows. On Aug. 15, 1994, after police were called to Martin’s mother’s home regarding a domestic disturbance with shots fired, Martin led the responding officers on a high-speed chase. Martin was driving between 60 to 70 mph on a two-lane country road, and drove through yards adjacent to homes. During the chase, Martin was seen waiving a gun, and exchanged gunfire with the officers.

Martin eventually turned off the road into a maize field and positioned his truck so that it faced back toward the road. Martin got out of the truck holding a gun to his head. A stand-off ensued that lasted several hours. Other officers, sharp shooters, and police negotiators came to the scene, but, per policy, the officers were ordered not to return fire if Martin fired his weapon.

A sheriff's negotiator, attempted to get Martin to surrender and turn over his gun. The negotiator spoke with Martin while behind a bulletproof shield. Martin threatened to kill the negotiator, and did fire a shot in close proximity to him. Martin fired other shots, one coming close to another officer. Martin was eventually arrested, and no one was harmed.

Following his arrest Martin was released on bond but fled Texas and failed to make his court appearance. Martin was arrested in Kansas in 1997 and returned to Texas to face charges for aggravated assault, two attempted capital murders, and failure to appear.

Texas Executes Man for Huntsville Corrections Officer's Death


By Associated Press - Kbtx.com

December 04, 2013

HUNTSVILLE, Texas (AP) A Texas inmate has been executed for the death of a corrections officer during a short-lived escape from prison six years ago.

Jerry Martin had requested that no additional appeals be filed on his behalf, clearing the way for his lethal injection Tuesday evening.

Martin was serving 50 years for attempted capital murder when he and another inmate bolted from a work detail outside a Huntsville-area prison in September 2007.

In the ensuing chaos and gunfire, a 59-year-old prison officer on horseback, Susan Canfield, suffered fatal head injuries. Both Martin and his partner, John Falk, were captured within hours after fleeing in a stolen pickup.

Martin's execution was the 16th and last scheduled for this year in Texas, which carries out capital punishment more than any other state.

News 3's Steve Fullhart was among those who viewed Martin's execution. Below is his perspective:

From inside the death chamber, Jerry Martin -- resigned, seemingly content with his fate -- made a brief final statement from the gurney at 6:15 p.m. Tuesday, telling the family of Susan Canfield that he was sorry for their loss, that he wishes he could take it back, and that he hoped his death would bring them closure.

He also added, "I did not murder your loved one. It was an accident. I didn't mean for it to happen. I take full responsibility."

Martin also made a very brief statement to his family and friends. They were in the viewing room I was in. As the lethal dosage began being applied, Martin said, "Jesus," along with some incoherent words, and then began to slip under the effects of the drug.

One of the members of Martin's party was crying for pretty much the duration of the time. Martin's brother stood closest to the window, holding hands with another member of their group as Martin slipped away.

A doctor pronounced him dead at 6:27 p.m., some eleven minutes after those final words.

A rider-less horse signifying Canfield's death was among the shows of support from the Texas Department of Criminal Justice Tuesday night in Huntsville. Canfield's family saw dozens of officers form a wall of gray as they went to and from the death chamber, a show they said they appreciated.

Susan's husband, Charles, is a retired Houston police officer. After the execution, I asked him what he wanted people to remember about his wife.

"I guess the best thing to remember about Susan was her smile, and the fact that she had great respect for everybody, no matter where you were, what your stance was, what uniform you wore, or if you were inside or out," he said.

Charles Canfield said his wife loved her job. When other guards were able to put a scowl on their faces while they sat on horses securing inmates in the field, she couldn't muster one. Susan would even practice scowling in the mirror. She enjoyed her work and loved going to it, he said.

TDCJ officer faulted in fatal prison break

Report critical of actions that led to recent killing of fellow guard

Houston Chronicle

December 5, 2007

A Texas prison correctional officer's failure to properly guard an inmate work crew resulted in a prison escape that led to the death of a fellow horseback officer, according to a report released Tuesday.

Guard Susan Canfield, 59, was killed Sept. 24 when two inmates escaped from a prison farm detail, stole a city of Huntsville vehicle and rammed it into her horse, throwing her to the ground. She died instantly.

"Employee failure to follow established post orders provided the opportunity for this incident to occur," concluded the Texas Department of Criminal Justice's incident review team.

The report said the employee has since resigned.

Canfield was one of nine horseback officers watching 76 Wynne Unit prisoners work in a nearby onion field that day. The prisoners were originally scheduled to work in an okra field in a different location, but fog there had forced TDCJ officials to switch farm assignments at the last minute.

On that morning, the inmates fanned out into four squads. Each squad had one horseback guard, including Joe Jeffcoat, watching them.

The other five correctional officers on horseback were positioned throughout the area.

Canfield was "high rider" that day, the officer placed outside the perimeter, on the other side of a barbed-wire fence separating the prison property from an adjacent city of Huntsville service center building.

At about 10:30 a.m., inmate Jerry Martin approached Jeffcoat, asking the guard to hold a broken watch for him. As Jeffcoat watched and listened to Martin, another inmate, John Falk, approached him.

When Jeffcoat turned his attention to the second inmate, the first, Martin, grabbed Jeffcoat's holstered .357. Jeffcoat dismounted and tackled Martin, who then threw the gun to Falk.

Falk pointed the gun at the officer and Jeffcoat released Martin. Both inmates then dashed across the field and jumped the barbed-wire fence to Canfield's location.

Falk fired at Canfield and she returned it, emptying her revolver's six rounds. Three other officers fired at the two. Falk pointed Jeffcoat's purloined .357 into Canfield's side and then took her rifle from her.

At the same time, Martin, who had taken control of an unlocked city vehicle, rammed it into Canfield's horse. She was thrown from her saddle and landed on the truck's windshield before striking her head on the ground.

Falk and Martin drove off in the stolen city truck. They were later apprehended.

"Officer Jeffcoat failed to maintain constant control and surveillance of his assigned work squad by allowing the offender crew to work in a proximity to his left and right at an unsafe distance," the report stated.

On Oct. 10, TDCJ officials recommended Jeffcoat be dismissed. He appealed the decision during mediation and later resigned for personal reasons.

The TDCJ report also pointed out the horseback team's vision was hindered by several heavy equipment vehicles parked near the fence next to the city of Huntsville's parking lot.

Canfield's husband could not be immediately reached for comment Tuesday.

It was also noted that the last-minute change to the inmates' farm assignment resulted in the wrong weapon being issued to Canfield that day. According to the report, Canfield should have been issued a shotgun, not the Ruger 77, a ranch rifle.

"This is more of a training issue — it was not a factor in the incident," said Michelle Lyons, TDCJ spokeswoman.

The incident review team also found that the Walker County Sheriff's Department, the Huntsville Police Department and the prison system officers all were operating on different radio bands, forcing officers to communicate on their cell phones.

TDCJ officials are now searching for a system that will allow them to communicate better with other agencies.

Prison policy not followed in escape, officials say

Official: Prison policy not followed in escape

Investigators review how 2 inmates fled, guard was killed

By Terri Langford and Mark Babineck - Houston Chronicle

September 26, 2007

A correctional officer on horseback apparently violated state prison policy when he allowed an inmate on a work detail to approach him, an official said Tuesday, a lapse that possibly led to another mounted officer's death during an escape attempt.

As the investigation continued into Monday's escape of two inmates from a Huntsville prison crew working in a vegetable field, Texas Department of Criminal Justice spokeswoman Michelle Lyons confirmed that mounted guards are required to stay 30 feet away from inmates — a requirement that wasn't followed.

Correctional officer Susan Canfield, 59, died when her horse was struck by a vehicle being driven by the fleeing inmates.

"Our policy is that officers working with field squads should stay a minimum of 30 feet from the offenders while the inmates are on foot, working," Lyons said.

The escape attempt occurred Monday morning when the inmates — convicted murderer John Ray Falk, 40, and Jerry Duane Martin, 37, convicted of attempted capital murder — approached and overpowered a male Wynne Unit correctional officer, then fled to a nearby parked city truck, which had the keys in the ignition. As other officers fired on them, the inmates drove the truck into Canfield's horse as she tried to stop them. She fell to the ground, dying instantly. The inmates grabbed her rifle and handgun. The horse was euthanized after a bullet wound was discovered.

Falk, who had been serving a life sentence since 1986, and Martin, who started his 50-year term in August 1997, were both back in custody within four hours after a carjacking, police chase and massive manhunt.

The two inmates and 74 others had been under the observation of an armed, seven-person horseback patrol as the prisoners hoed outside the prison's fence. The escape began when one of the escapees was allowed to approach a male correctional officer on horseback to ask him to hold his watch. When the officer tried to take the watch, the inmate pulled the officer to the ground.

Neither the prison system nor its independent investigator would release the name of the first guard who was ambushed.

Procedure spelled out

Prison field work in the area was suspended Tuesday as the investigation continued.

Keith Price, assistant professor of criminal justice and sociology at West Texas A&M University and a former Texas prison warden, said there is no scenario where an inmate should be allowed to approach a guard in the field.

"Never, never," said Price.

Armed guards on horseback know to form a perimeter around field workers, Price said. They act similar to officers in towers and are trained not to approach the inmates while armed and not to allow prisoners to get within about 30 to 40 feet.

The TDCJ's independent investigator's office and the Texas Rangers are reviewing the escape to determine what occurred and how it could have been prevented.

"It's these types of details that will be a part of the focus of the serious incident review," Lyons said. "At that point, we will be able to examine what was done correctly and where any breakdowns may have occurred."

But Canfield's death has raised serious questions about which inmates should be allowed to work outside a prison as well as how they should be monitored.

Both inmates had been convicted of violent crimes, yet both qualified for outside work. Inmates may be considered for outside work only if they have served at least 10 years — a mark that Martin passed only last month — and have a clean disciplinary record.

While Martin's record was clean enough for field work, it was not a spotless one.

On July 17, he was relocated to Wynne from the Polunsky Unit in Livingston after it was discovered he engaged in sexual behavior with a licensed vocational nurse at the unit.

"It's a pending investigation," said John Moriarty, TDCJ's inspector general, who added that the nurse no longer works for the prison system. No charges had been filed against the nurse as of Tuesday.

Good time revoked

As a result of the incident, the prison system revoked 30 days of good time accrued by Martin. Good time is a credit inmates earn for good behavior.

Despite the loss of good time, he was approved for field work because the sexual encounter did not affect his eligibility for outside duties.

The way inmates are considered for jobs at state prisons was changed in 2003, following the escape of seven Texas inmates from a South Texas prison.

Previously, inmates who showed they had adjusted to prison life by serving their time without incident or incurring disciplinary actions, no matter how long they had been in prison, could qualify. Now, they must serve at least 10 years.

Texas Board of Criminal Justice Chairwoman Christina Melton Crain declined to comment on the escape pending the outcome of the investigation.

One of the last female correctional officers to fall victim to prison violence was Jeanette Bledsoe, who was 57 in February 2000 when condemned killer Ponchai Wilkerson jimmied open his cell and attacked her while she escorted another inmate, Howard Guidry, through what was then called the Terrell Unit in Livingston.

Wilkerson, armed with a homemade spear, and Guidry held Bledsoe for 13 hours before surrendering. Bledsoe and her son, who also worked at Terrell, left TDCJ within a year because of the close call, she said. While she wouldn't go back and wouldn't want her daughter working there, she supports TDCJ's policy of giving qualified female officers equal opportunity, even when it comes to guarding some of Texas' most violent criminals.

Officer's qualifications

According to TDCJ, an officer's gender or physical size and strength is not a determining factor in job assignments. Rather, it's an officer's ability to "handle a particular job," TDCJ spokeswoman Lyons, said.

Canfield, an experienced horsewoman, became a correctional officer in 2000 and was assigned to the horseback field crews in 2004.

Visitation for Canfield is scheduled for Friday, from 4 to 8 p.m. at the Sam Houston Memorial Funeral Home in Huntsville. A funeral service will be Saturday at 10 a.m. at the Bernard G. Johnson Coliseum at Sam Houston State University.

Huntsville escapees took guns from prison guards

Convicts took guns from guards at Huntsville's Wynne Unit, say prison officials

By Terri Langford and Mark Babineck - Houston Chronicle

September 25, 2007

HUNTSVILLE — Two violent Texas inmates, including one who had to be relocated to another prison recently after allegations he had sexual contact with a nurse, overpowered a 59-year-old correctional officer and fatally ran her down with a stolen truck during a short-lived prison escape Monday, prison officials said.

Matagorda County killer John Ray Falk, 40, and Dallas-area convict Jerry Duane Martin, 37, serving a sentence for attempted murder, were among 76 minimum custody inmates working outside the Wynne Unit around 10:10 a.m. when they fled the six officers watching the group, officials said.

The convicts took two guns from Susan Canfield, a nearly eight-year veteran correctional officer, and a male guard. The two escapees exchanged gunfire with guards and ran to a nearby Huntsville municipal building, where they stole a truck and used it to knock Canfield off her horse.

The horse was hit by the car and she fell, dying instantly from the fall, Texas Department of Criminal Justice spokeswoman Michelle Lyons said. Canfield's horse had to be euthanized overnight after investigators discovered it had been shot by one of the inmates. A bullet wound, previously undetected, was found under the saddle's girth strap.

The guard's husband, a field training officer at the Houston Police Department's academy, said he was concerned when she joined the TDCJ in 2000.

"I told her she did not want to work as a correctional officer," Chuck Canfield, 51, said Monday.

Falk and Martin dumped the truck at a defunct fast-food restaurant about a mile down Interstate 45 and carjacked a pickup in a nearby bank drive-through, abducting the woman inside, Lyons said. Huntsville police gave chase briefly and disabled the truck by shooting out a tire.

The woman was unharmed, Falk was captured around 11 a.m. and Martin was tracked down by dogs around 1:40 p.m., when searchers found him up a tree in a densely wooded area near the highway.

Falk has been serving a life sentence since 1986, and Martin started his 50-year term in 1997.

Lyons said the two men were allowed to work outside the perimeter "based on clean disciplinary records" inside the system, even if their free-world records were far from it.

But while Martin's record was clean enough for field work, it was not a spotless one.

On July 17, he was relocated to Wynne from the Polunsky Unit in Livingston after it was discovered he engaged in sexual behavior with a licensed vocational nurse at the unit.

"It's a pending investigation," said John Moriarty, TDCJ's inspector general, who added that the nurse no longer works for the prison system. He could not immediately say, when contacted Tuesday, whether charges had been filed against the nurse.

Sexual contact with an inmate is a crime.

However, he did say the nurse was not involved in Martin's and Falk's escape.

"She's no longer employed," Moriarty said. "I don't know if she resigned or what."

As a result of the incident, the prison system revoked 30 days of good time accrued by Martin. Good time is a type of credit inmates earn for good behavior.

Despite the loss of good time, was still approved for field work because the sexual incident was not something that would have been considered by the prison system when determining he was eligible for outside work.

The law puts a sexual crime on the employee who commits it, not on the inmate.

Falk's defense attorney at trial, James T. Garrett, called his former client "an absolute loser."

"I'm surprised they let him in a work program," Garrett said.

'Nothing left to lose'

In March 1986, Falk and accomplice Tommy Wooten were charged with capital murder in the stabbing and drowning death of Donald Owen, an elderly Matagorda County attorney.

According to District Attorney Steven Reis, Falk and Wooten had learned that Owen had come into some money, so they went to his house and borrowed $10. Reis said that, after getting drunk, the two men returned to Owen's home and coaxed him outside by making up a story about some people being on his property.

"Mr. Falk then slammed him in the head with a two-by-four and knocked him down," Reis said. "He then took a knife and stabbed him a couple of times in the throat."

The men threw Owen in the trunk of his own car before they stole it and slashed his throat again, but weren't convinced he was dead even as they made sudden stops to hear if he would moan when he lurched forward.

Reis said Falk and Wooten eventually pushed the car into the Colorado River, with Owen still alive in the trunk.

"(Falk) was a bad man," recalled former Matagorda County District Attorney Daniel Shinder.

Martin was arrested in August 1994 and charged with two counts of attempted murder after shooting at state troopers and Collin County sheriff's deputies near McKinney, a Dallas suburb.

Lt. John Norton, spokesman for the Collin County Sheriff's Department, said two highway patrolmen had gone to Martin's home in response to a domestic disturbance, but Martin fled in his car and started shooting at them.

After a high-speed chase, Martin ended up in a cornfield southwest of McKinney where he continued shooting at the troopers as well as deputies who had come to help negotiate with him.

No one was injured, Norton said, and Martin was talked into surrendering.

"I don't have nothing left to lose," Martin said Monday as he was recorded entering the Walker County jail by a KHOU-TV crew.

The men were well-behaved enough behind bars to earn minimum custody at the 124-year-old Wynne Unit in Huntsville, one of three clustered on the north side of town. Such inmates aren't trusties, but are allowed to perform supervised labor outside the gates.

A committee at the prison examines inmates' records before determining what tasks they can perform. They are required to work if they meet the criteria and are physically able, officials said.

Keith Price, who retired after 30 years with TDCJ and is now an assistant professor of criminal justice and sociology with West Texas A&M University in the Panhandle, said the inmate-to-guard ratio was well under the 30-to-1 that's considered acceptable.

"What a terrible thing, to lose an officer like that," said Price, a former warden at six Texas prisons. "This officer was out there, doing her duty, trying to do the best she can. You've really got to admire her sense of duty. In this particular case, she really put her life on the line. "

Killed while giving chase

According to Lyons, one of the inmates approached a male guard on horseback and asked him to hold a watch. The prisoner grabbed the guard, and Canfield came to assist him.

That's when Falk and Martin bolted for a nearby parking lot outside a city building and started up a work truck, Lyons said. They struck Canfield's horse, which later had to be euthanized, after the officer had given chase. Canfield's pistol was recovered at that scene.

Shortly before 11 a.m., the two ditched the truck and carjacked a woman at a drive-through teller nearby, officials said. They drove south along the I-45 feeder, with the woman still inside, before Huntsville police shot out a tire and the men ran.

After Falk was in custody, bloodhounds and searchers in helicopters concentrated on a large wooded area nearby. The dogs picked up Martin's scent and, nearly three hours later, a shirtless, heavily tattooed Martin was pulled down from his perch.

It was not immediately clear who was driving when Canfield's horse was struck, or if the men fired her rifle, which was recovered. Lyons said escape charges are pending at the very least, although the slaying of a correctional officer is a capital crime in Texas.

Officials also are investigating whether the escape was planned or spontaneous.

The 100 Club said donations are being accepted for its Survivors Fund, which provides benefits to the families of officers killed in the line of duty.

Babineck reported from Houston. Chronicle reporters Melanie Markley, Steve McVicker, Terri Langford , Renee Lee and Susan Carroll contributed to this report.

Second escapee found hiding in tree after prison guard's death

Second escapee caught after prison guard's death

By Mike Glenn - Houston Chronicle

September 24, 2007

HUNTSVILLE — Searchers on horseback with bloodhounds this afternoon captured the second of two prison inmates who escaped this morning, stealing a truck and fatally striking a mounted Texas corrections officer as they fled a work detail.

Jerry Duane Martin, 37, was found hiding in a tree about 2 p.m., authorities said. The other inmate, John Falk, 40, was captured shortly after the 10:30 a.m. escape.

Susan Canfield, a 59-year-old Correctional Officer IV with nearly eight years of service, was knocked from her horse and died shortly after the escape.

"I told her she did not want to work as a correctional officer," said her husband, Chuck Canfield, who works at the Houston Police Department's Academy in Humble.

"It is no secret that working as a correctional officer is one of the toughest jobs in law enforcement," he said, fighting back tears. "The stress level can be enormous as officers, especially women working in a male prison, endure insults from prisoners."

But he said his wife was well aware of the risks involved in working on an outside horseback crew.

"She never had a fear of going to work," Canfield said.

Martin and Falk escaped while on a work detail near the Texas Department of Criminal Justice's Wynne Unit in Huntsville, officials said.

"They managed to overpower one of the correctional officers and took her weapon," said Jason Clark, a TDCJ spokesman.

They also stole a Huntsville city vehicle during their escape, Clark said.

Michelle Lyons, a TDCJ spokeswoman, said the inmates then struck Canfield's horse, knocking her off.

James Reichman, general manager of Michael Franks Printing on Interstate 45, said he went outside about 10:30 a.m. after hearing gunfire.

He spotted two men wearing white prison uniforms running along the road. Officers captured Falk a short time later, but Martin dashed into the woods where he was captured a few hours later.

"It's just another day in Huntsville," Reichman said. "When you live near eight prison units, you know some of them (inmates) are going to try to escape."

The two inmates had been part of a crew doing agricultural work in the field. They passed the screening process and had good disciplinary records, officials said.

A committee at the prison examines inmates' records before determining what tasks they can perform. They are required to work if they meet the criteria and are physically able, officials said.

Canfield was on horseback with one other officer, said Lyons, the TDCJ spokeswoman.

Authorities said Martin abandoned the city vehicle within a few miles of the prison, and ran into the heavily wooded area.

Officers on horseback and in helicopters combed the area, Clark said.

Search teams also used tracking dogs to locate Martin. He was discovered hiding in a tree about three miles from the prison unit, officials said.

Reichman said he isn't worried about living so close to prison inmates.

"Usually they're looking for a vehicle and the quickest way out," he said. "They're trying to get away from here."

Martin was serving a 50-year prison sentence after he was charged with attempted capital murder in August 1994. He was accused of shooting at Collin County sheriff's deputies and state troopers during a standoff in a field near McKinney that followed a car chase.

Falk was serving a life sentence for murder, Clark said.

He was convicted for the March 1986 murder and robbery of lawyer Donald Owens in Matagorda County.

Matagorda County Sheriff James Mitchell said Falk confessed to hitting Owens in the head with a 2-by-4 and cutting his throat with a knife.

Falk and an accomplice, Tommy Wooten, then dumped the body in the trunk of a car and drove the car into the Colorado River. The two men stole Owens' television and a silver set.

"He was a bad man," said former Matagorda County District Attorney Daniel Shinder.

Jaye Hightower, a 15-year veteran and vice president of the Corrections Association of Texas, said he was saddened and frustrated by the news of Canfield's death.

The association had been pushing for improvements at the state's corrections facilities, complaining that the job vacancy rate of about 12 percent, reported earlier this year, could put officers in danger.

"I am deeply hurt that one of our people gave the ultimate sacrifice," Hightower said. "We've been going back and forth with the Legislature about conditions (for officers), and they don't realized what we're going through.

"And now this," he said. "One of our own.

"That young lady came to work today and she's not able to go back home," Hightower said. "And that should not happen, period."

After their capture, Martin and Falk were taken to the Huntsville Police Department. They will be charged with escape and possibly capital murder, officials said.

Chronicle reporters Melanie Markley, Renee C. Lee and Susan Carroll contributed to this report.

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

NO. AP-76,317

JERRY DUANE MARTIN, Appellant
v.
THE STATE OF TEXAS

ON DIRECT APPEAL

FROM CAUSE NO. 24,087 IN THE 278TH DISTRICT COURT

WALKER COUNTY

Meyers, J., delivered the opinion of the Court in which Price, Womack, Johnson, Keasler, Hervey, Cochran, and Alcala, JJ., joined. Keller, P.J., concurred.

Appellant was convicted in December 2009 of capital murder. Tex. Penal Code §19.03(a). Pursuant to the jury's answers to the special issues set forth in Texas Code of Criminal Procedure Article 37.071, sections 2(b) and 2(e), the trial judge sentenced appellant to death. Article 37.071 §2(g). ⁽¹⁾ Direct appeal to this Court is automatic. Article 37.071 §2(h). After reviewing appellant's twenty points of error, we find them to be without merit. Consequently, we affirm the trial court's judgment and sentence of death.

SUFFICIENCY OF THE EVIDENCE

Appellant was charged with capital murder, specifically, committing murder while escaping or attempting to escape from a penal institution. Tex. Penal Code §19.03(a)(4). Appellant challenges the sufficiency of the evidence at both phases of trial.

In reviewing a claim that evidence is legally insufficient to support a judgment, "the relevant question [on appeal] is whether, after viewing the evidence in the light most favorable to the prosecution, 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 (1979). This standard accounts for the fact finder's duty "to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Id. Therefore, in analyzing the legal sufficiency, we will determine whether the necessary inferences are reasonable based upon the combined and cumulative force of all the evidence, both direct and circumstantial, when viewed in the light most favorable to the verdict. Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).

Guilt Phase

The evidence at trial established that on September 24, 2007, appellant was an inmate incarcerated for a felony offense at the Texas Department of Criminal Justice ("TDCJ") Wynne Unit located in Huntsville. He and fellow inmate John Falk were assigned to the same work squad that morning to hoe and aerate the onion patch. The Wynne Unit onion patch is outside the main perimeter fence of the prison and adjacent to the City of Huntsville Service Center ("Service Center"). The Service Center was, at that time, separated from prison property by only a chain-link fence in some portions and a barbed-wire fence in others.

Four squads had been turned out to work that day, each consisting of twenty inmates with a single armed guard on horseback. Each guard carried a .357 revolver with six bullets. An armed supervising sergeant accompanied the squads in the fields. Finally, a "high rider" also patrolled the squads. The high rider was another guard on horseback who patrolled outside the prison fence on Service Center property and acted as the "last line of defense" in the event of an escape attempt. The high rider carried a .357 revolver with six bullets and a .223 rifle with four rounds. The high rider that day was Officer Susan Canfield, an experienced rider and guard.

Appellant was part of squad number five, which was assigned to work in the portion of the onion field closest to the Service Center. Officer Joe Jeffcoat oversaw appellant's squad. Falk was assigned to the row in their squad's section farthest from the fence, and appellant voluntarily took the row next to him. Jeffcoat testified that appellant and Falk were friends and that they usually worked together. He also noted that he had never had any problems with the pair before that day.

After the squads had been working for a while, appellant approached Jeffcoat asked him to hold his watch because it had broken. Jeffcoat agreed. When appellant got about 20 feet from him, Jeffcoat heard something to his left; he turned to see Falk walking towards him from the other side. When he turned back towards appellant, appellant was already at Jeffcoat's side reaching for his .357 revolver. Appellant and Jeffcoat began struggling over the gun, and Jeffcoat yelled for help. Falk then started shoving Jeffcoat out of his saddle. Appellant was able to get the gun as Jeffcoat came off his horse on top of him. Jeffcoat began to wrestle with appellant, but Falk came around and appellant tossed the gun to him. Jeffcoat let go of appellant and started after Falk, but Falk pointed the gun at him. At this time, Jeffcoat heard his superior, Field Sergeant Larry Grissom, yell to get down, so he did.

Appellant and Falk then fled through the barbed-wire fence and onto Service Center property. Grissom and the other guards focused on apprehending Falk because Falk had the gun. Appellant ran off in another direction. Grissom fired twice at Falk, but Falk ran behind some equipment. Guards from two of the other squads also fired shots at Falk but to no avail.

At this point, the high rider, Canfield, engaged in a gun fight with Falk. Canfield advanced on Falk while firing at him with her revolver. When Canfield expended her bullets, Falk ran at her as she was trying to remove her rifle from its scabbard. The two engaged in a struggle for the weapon while Canfield attempted to turn her horse away from Falk. However, once Falk jabbed his stolen revolver in her ribs, Canfield ceased struggling and Falk took the rifle. Falk then backed away.

Meanwhile, during the gunfight, appellant ran to a truck parked outside the Service Center sign shop. Larry Horstman of the City of Huntsville sign shop testified that the truck was a one-ton, flat-bed pick-up truck with toolboxes on the side. He stated that he always parked the truck about 10 feet from the sign shop door and left the keys in it. Jeffcoat testified that he saw the truck parked in the same spot every time he was working in the onion field.

Appellant got into the truck and sped straight towards Canfield. Horstman testified that he heard his truck take off "real fast." Other witnesses testified that the truck was "floorboarded," "going as fast as it could go," "being revved at high rpms," leaving acceleration marks as it hit Canfield and her horse just after Falk backed away. Canfield and the horse went up onto the hood of the truck. Canfield's back and shoulders hit the windshield and her head struck the roof. Canfield was then launched into the air and came down on her head, shoulder, and neck. There was no evidence appellant tried to brake before hitting Canfield or that the truck slid into her and her horse; however, he did turn toward the Service Center exit while, or immediately after, striking her with the truck. Witnesses also testified that there was enough room in the Service Center lot that appellant could have avoided hitting Canfield.

After striking Canfield and her horse, appellant stopped the truck and Falk ran to the passenger side and got in. Jeffcoat testified that they then "took off as fast as the truck could go." Jay Miller, a fire hydrant technician with the Service Center, saw appellant take the truck and managed to follow it as it left the Service Center lot. Miller called 9-1-1 and remained on the phone during the chase. Miller testified that at one point the truck's passenger sat up in the windowsill of the truck and pointed a rifle at him. Miller further testified that the passenger fired at him, but his vehicle was not hit. Miller continued to chase them on and off the highway until the truck pulled into a parking lot and the inmates got out and ran into some nearby woods. Miller parked his vehicle to block the road and then chased the inmates on foot to see if they were going to come out on the other side of a fence at the bank next door. The police arrived at this time and Miller directed them towards the bank.

Walker County Deputy Brian Smallwood arrived at the bank to see appellant and Falk run to a red truck that was in the drive-thru lane. Falk entered through the driver's door and shoved the female driver over. Appellant, who now had the rifle, jumped into the bed of the truck. Huntsville Police Sergeant Ron Cleere also observed this and got out of his vehicle with his gun drawn, but the inmates drove off before he could attempt to stop them. Cleere fired at the truck's tires seven times hitting one of them, but the truck did not stop. Both Smallwood and Cleere pursued the red truck.

Falk drove the truck onto the interstate but exited after only 3/4 of a mile. He pulled onto a grassy field next to some woods because the right front tire was shredded. Smallwood pulled his car into a ditch 50 yards away from the red truck. Appellant stood up in the bed of the truck and pointed the rifle at Smallwood. Smallwood heard a shot as he opened his door. Smallwood fired at appellant as appellant ran into the woods. Cleere arrived and fired at appellant as well. Falk got out of the truck and also ran for the woods. Cleere saw appellant again on the edge of the woods, using the base of a tree to steady the rifle. Cleere went to retrieve his own rifle from his car, but when he returned he did not see appellant. Appellant then stood up and Cleere fired at him with his rifle, but appellant got away. When other officers arrived, they set up a perimeter around the wooded area. The owner of the truck was unharmed.

Huntsville Police Lieutenant Daryl Slaven apprehended Falk behind the Walmart on the other side of the wooded area. When Falk heard the police car, he stopped and put his hands in the air. The authorities searched for appellant in the wooded area on horseback and using dogs. The rifle was found lying in the woods with three rounds still in it. After approximately two hours, appellant's boots and some clothing were found hidden in the dirt of a creek bed. Appellant was eventually discovered hiding in a tree wearing only his underwear.

Dallas County Medical Examiner Tracy Dyer testified that Canfield died from a significant impact that caused an unsurvivable hinge fracture to her skull which went from ear to ear. Viewing photos of the damage to truck, Dyer opined that it would have taken a "significant amount of velocity" for Canfield's body to have caused the dent at top of the windshield. She noted that Canfield also sustained a depressed skull fracture as well as external injuries including bruising and lacerations to her head, hands, arms, trunk, and legs. Veterinarian Richard Posey testified that Canfield's horse had extensive injuries from a bullet wound, plus trauma to its left hip, scrapes on its hips and hock, and a swollen joint on its front leg from the impact. The horse had to be put down.

In appellant's first point of error, he complains that the trial court erred in overruling his motion for a directed verdict on the grounds that the evidence was legally insufficient to show that Canfield's death occurred while he was escaping. Specifically, he asserts that Texas Penal Code §19.03(a)(4) incorporates the offense of escape, pursuant to Texas Penal Code §38.06, and that case law dictates the offense of escape was complete when he went through the prison fence onto city property. See Lawhorn v. State, 898 S.W.2d 886, 890 (Tex. Crim. App. 1995); Fitzgerald v. State, 782 S.W.2d 876, 881 (Tex. Crim. App. 1990). ⁽²⁾ For the reasons below, we find that the offense of escape found in Texas Penal Code §38.06 is not incorporated into the capital-murder statute.

The provisions of the Penal Code must be "construed according to the fair import of their terms, to promote justice and effect the objectives of the code." Tex. Penal Code §1.05(a). When attempting to discern the collective legislative intent or purpose of a statute, we focus on the literal text of the statute and attempt to discern a fair and objective meaning of the statute's text at the time it was enacted. Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991). We focus on the text because it is the only definitive evidence of the legislators' intent and the Legislature is constitutionally entitled to expect the judiciary to faithfully follow the specific text that was adopted. Id. Therefore, if the meaning of the statute, when read using the canons of construction, should have been plain to the legislators who passed it, then we give effect to that plain meaning. Id.

Upon examining the language of the capital-murder statute, it is apparent that when the statute requires proof of a predicate offense, it does so explicitly by using language that the murder was done "in the course of committing or attempting to commit" a specific offense. See Tex. Penal Code §19.03(a)(2)(listing "kidnapping, burglary, robbery, aggravated sexual assault, arson, obstruction or retaliation, or terroristic threat under Section 22.07(a)(1), (3), (4), (5), or (6)" as offenses). All of these predicate offenses are legislatively defined. See Tex. Penal Code §§20.03 (kidnapping), 30.02 (burglary), 29.02 (robbery), 22.021 (aggravated sexual assault), 28.02 (arson), 36.06 (obstruction or retaliation), 22.07 (terroristic threat). The Legislature could have included the offense of "escape" in subsection (a)(2), or could have used the language "in the course of committing or attempting to commit," in subsection (a)(4); however, it did neither.

Subsection (a)(4) does not speak of "escape" as an offense that must be committed or attempted, but rather as a factual circumstance to be proven, similar to circumstances described in other subsections of the capital-murder statute. Compare Tex. Penal Code §19.03(a)(4) (stating that the State must prove the murder was committed "while escaping . . . from a penal institution") with Tex. Penal Code §19.03(a)(5)(A) (indicating that the State must prove the murder was committed "while incarcerated in a penal institution" against one "who is employed in the operation of the penal institution").

As evidenced by subsection (a)(2), the Legislature clearly knew how to specify that commission of the offense of escape was a predicate offense for capital murder. The Legislature's decision not to do so shows that they intended an application of the common-sense definition of "escaping" rather than the statutory definition of the offense of "escape." The phrase "while escaping" implies that the Legislature considered escape to be a process and desired to punish more severely any murder committed during that process. We read words and phrases in context and construe them according to the rules of grammar and common usage. Tex. Gov't. Code §311.011(a). According to the rules of grammar and common usage, the process of escaping is not complete until the inmate "get[s] away" or is able to "break away, get free, or get clear." Webster's Third New International Dictionary 774.

Applying the common-sense definition of "escape," we hold that the evidence is sufficient to show that appellant killed Canfield while escaping from the Wynne Unit. The facts show that Canfield was the "high rider" - a guard who patrolled just outside the prison fence. It would have been obvious to the inmates in the squads that, in order to escape or "get away," they would need to get past the high rider. While appellant was making his escape with Falk, Canfield was attempting to prevent it. In the course of their escape, appellant killed Canfield. Although there is a point at which the escape is concluded under subsection (a)(4), because appellant murdered Canfield while he was in the literal process of escaping, we need not decide that point in this case.

The trial judge did not err in overruling appellant's motion for a directed verdict. Point of error one is overruled.

In his second point of error, appellant contends that the evidence is legally insufficient to show that he intentionally or knowingly caused Canfield's death. In reviewing the legal sufficiency of appellant's intent to cause death, we note that capital murder is a result-of-conduct offense. Roberts v. State, 273 S.W.3d 322, 329 (Tex. Crim. App. 2008). A person acts intentionally, or with intent, with respect to a result of conduct when it is his conscious objective or desire to cause the result. Tex. Penal Code §6.02(a). A person acts knowingly, or with knowledge, with respect to a result of his conduct, when he is aware that his conduct is reasonably certain to cause the result. Tex. Penal Code §6.02(b). An accused's intent can be inferred from his acts, words, and conduct. Dues v. State, 634 S.W.2d 304, 305 (Tex. Crim. App. 1982).

Appellant argues that he neither had a "conscious objective or desire" to cause Canfield's death nor was he "aware that his conduct was reasonably certain" to cause her death when the truck he was driving hit her horse. First, appellant contends that the fact that the horse was not significantly harmed by the truck shows that he did not intend to kill Canfield. He notes that the veterinarian testified that the horse was put down because of the gunshot wound and not the truck impact, and asserts that the veterinarian testified that the horse was not even harmed by the collision. However, the veterinarian, Dr. Posey, did testify that the horse was harmed by the truck when he noted bruising or trauma to the horse's left hip and scrapes to its hips and hock, along with a swollen joint on its front left leg. Posey also testified that it was not unusual for a horse to be able to walk and have no broken bones after impact by a vehicle.

Next, appellant argues that the horse was turning or circling when he hit it, and because the damage to the truck was on the right passenger side, he must have been turning away from the horse when he hit it with the truck. He reasons that this evidence proves that he attempted to miss the horse because, if he wanted to kill Canfield, he would not have turned the truck at all. He also notes that he would have killed Falk, if Falk had not backed away. He contends that the evidence shows that Canfield's death was clearly just a tragic accident.

Viewed in the light most favorable to the verdict, the evidence shows that appellant and Falk worked together to effectuate their escape. Canfield was the only obstacle to both men getting away. Witnesses testified that once appellant began to drive the truck, the engine was "wide open," "revved up at high rpms," and "floorboarded," and it was headed straight toward Canfield. Sergeant John Tucker, a Department of Public Safety ("DPS") accident reconstructionist, observed tire marks "caused by a vehicle accelerating into a turn." There was no evidence of braking or swerving near the point of impact. Further, the evidence showed that there was a clear space of over 40 feet on either side of Canfield into which appellant could have moved to avoid colliding with her. When appellant did turn, it was in the direction of the exit. Based upon this evidence, the jury could reasonably infer that, even if Canfield's horse was turning or circling, appellant intentionally or knowingly caused Canfield's death. Point of error two is overruled.

Punishment Phase

In point of error three, appellant challenges the sufficiency of the evidence regarding future dangerousness. See Article 37.071 § 2(b)(1). As with the guilt phase, in reviewing the sufficiency of the future-dangerousness evidence, we view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have believed beyond a reasonable doubt that there was a probability that the defendant would commit criminal acts of violence. Williams v. State, 273 S.W.3d 200, 213 (Tex. Crim. App. 2008); Banda v. State, 890 S.W.2d 42, 50 (Tex. Crim. App. 1994). A jury is permitted to consider a variety of factors when determining whether a defendant will pose a continuing threat to society. See Keeton v. State, 724 S.W.2d 58, 61 (Tex. Crim. App. 1987).

In its determination of the special issues, the jury is entitled to consider all of the evidence presented at the guilt phase of the trial, in addition to the evidence presented at the punishment phase. Banda, 890 S.W.2d at 51; Valdez v. State, 776 S.W.2d 162, 166-67 (Tex. Crim. App. 1989). In some instances, the circumstances of the offense and the events surrounding it may alone be sufficient to sustain a "yes" answer to the future- dangerousness special issue. Banda, 890 S.W.2d at 51; see also Hayes v. State, 85 S.W.3d 809, 814 (Tex. Crim. App. 2002). The jury is the exclusive judge of the credibility of witnesses and the weight to be given their testimony. Colella v. State, 915 S.W.2d 834, 843-44 (Tex. Crim. App. 1995).

The evidence in the instant case revealed that appellant and Falk worked as a team to escape from the Wynne Unit. While Falk drew fire from the guards, appellant obtained a truck and then used it to incapacitate Canfield - the last guard impeding the duo's get away. Appellant and Falk then led the authorities on a car chase, eventually abandoning the city truck. They then kidnapped a woman and took her vehicle. When that vehicle was no longer driveable, appellant engaged in a short gunfight with officers before fleeing on foot and hiding in the woods. This evidence alone supports a finding of future dangerousness. However, further evidence presented at the punishment phase also supports this finding.

At the time he killed Canfield, appellant was serving a 50-year sentence for attempted capital murder, a 40-year sentence for another attempted capital murder, a 10-year sentence for aggravated assault, and a 10-year sentence for failure to appear. The victims of the attempted capital murders and the aggravated assault were peace officers.

In addition to appellant's prior offenses, the State offered evidence showing that appellant lacked remorse for the instant offense and felt that his conduct was not only reasonable but courageous. Two weeks after Canfield's death, appellant sent a letter to his older brother, John, in which he discussed the instant offense:

Well I'm sure by now that you have heard the news about my escape from the Wynne farm. I wasn't gone for more than a few hours until I was recaptured. There was a shootout with the police, a couple of high speed chaces [sic], and a death. You will never know the resolve, the desperate courage it took for me to wrestle an armed guard off his horse - and take his gun away frome [sic] him, while having three other armed guards on horses shooting at you. One of those three lost there [sic] life, and as a result I now have to face the death penalty becaus [sic] of it.

I do not expect you to fully understand my reasonings - you would have to walk a mile in my shoes to understand what drove me to make such a decision. I exhausted every reasonable means of appealing my case - through the State - as well as through my own family, you encluded [sic]. I begged you to speak to Robert Looper & Jimmy Warnell [the officers he was convicted of attempting to shoot]. For "four" years I have been reaching out to my family to help - It makes no difference now . . . This is not something that happen [sic] overnight John . . . surely in your heart you knew it would someday come down to this - what other choice did I have? 25 years is a long-long time to do brother. I barely had 12 done and the next thirteen were overwhelming. I did only what was to be reasonably expected of me to do - win, loose [sic] or draw, I tried for freedom. I lost.

* * *

I am a real outlaw brother. My prison record speaks for its self [sic]. Now I'm gona [sic] die an outlaws [sic] death.

The State also called Stephen Rogers, employed by the TDCJ State Classification Office, to testify about the classification levels in the Texas prison system and how an inmate's level is determined. He described the layout, security measures, and privileges with regard to general population and administrative segregation. He testified that a person receiving a sentence of life without parole would be assigned to the G-3 general population classification indefinitely. However, he noted that due to appellant's escape risk and the fact that he killed a guard, appellant would most likely be assigned to administrative segregation and could remain there for the duration of his incarceration. Rogers did note that inmates have committed acts of violence and escaped from administrative segregation. Texas Special Prosecution Unit Senior Criminal Investigator A.P. Merillat also testified about the level of security on death row and the newly defined "High Security" classification. He noted that there were opportunities for inmates to commit violence in all classification levels, including on death row, against fellow inmates, guards, chaplains, investigators, visitors, or medical personnel.

Appellant presented the facts of his previous offenses of attempted capital murder through the testimony of witnesses. On August 15, 1994, police were called to appellant's mother's home regarding a domestic disturbance with shots fired. When Deputy R.D. McCommas arrived at the residence, he saw two or three people outside the home. As he approached, appellant got into a red truck and drove off. The people at the home confirmed that appellant was the one "causing problems." After determining that everyone at the house was unharmed, McCommas pursued appellant. McCommas was in a marked car with the lights and siren activated. Two other county sheriff's cars and a DPS trooper became involved in the high-speed chase. Appellant was going 60 to 70 mph on a two-lane country road, and he drove through some yards adjacent to homes. McCommas saw appellant waving a gun through the back window of the truck. The DPS trooper then took the lead in the chase and radioed that "shots had been fired." McCommas could see the trooper returning fire.

Appellant eventually turned off the road into a maize field and positioned his truck so that it to faced back toward the road. Appellant got out of the truck holding a gun to his head. A stand-off ensued that lasted several hours. Other officers, sharp shooters, and police negotiators came to the scene, but, per policy, the officers were ordered not to return fire if appellant fired his weapon.

Deputy Jimmy Warnell, a Collin County Sheriff's negotiator, attempted to get appellant to surrender and turn over his gun. Warnell spoke with appellant while behind a bulletproof shield. Appellant threatened to kill Warnell, and did fire a shot in close proximity to him. Appellant fired other shots, one coming close to McCommas. At one point, appellant even put the gun into his own mouth. Appellant was eventually arrested, and no one was harmed.

Following his arrest on August 15, 1994, appellant was released on bond which was posted by his uncle. However, appellant fled Texas and failed to make his court appearance. Appellant was arrested in Kansas in 1997 and returned to Texas to face charges for aggravated assault, two attempted capital murders, and failure to appear.

At punishment, Appellant also presented evidence regarding his childhood and family. Appellant's brother, John, testified that appellant was the fourth of five children, having an older sister, two older brothers, and a younger sister. When appellant was fairly young, their parents got divorced. The children lived with their mother and moved several times. They did not get to see their father very often due to animosity between the parents.

Tami, the oldest, joined the Marines when she finished high school. Joey, the second oldest, began having problems with drugs when he was in his teens and dropped out of school in the tenth grade. After he quit school, Joey lived "in ditches or in the woods." When Joey was 18 or 19, he died in a fire. According to John, appellant was a "happy go lucky kid" prior to Joey's death, but John noticed a difference afterward.

When he was eleven, appellant attempted suicide by shooting himself. When he was in his early teens, he began using drugs. John testified that appellant "got out of control with the drugs, and my mom shipped him off to dad." Appellant did not finish high school. John was aware that appellant was convicted of theft in Dallas County in 1988, and was sentenced to shock probation, and attended boot camp.

John moved to Nevada with his wife in 1990 or 1991 and began working on a ranch there. Appellant also moved to Nevada and lived with John while working in a casino as a cook. John noted that appellant still had a problem with drugs and alcohol, and served jail time in Nevada. Appellant committed the attempted capital-murder offense within 18 months of returning to Texas. John testified that he never discussed the 1994 incident with appellant, but his mother told him that appellant was threatening suicide that day and had not threatened her life.

John further testified about appellant's abilities as an artist. TDCJ Captain John Bolton testified that appellant worked for four or five years on the "paint squad" at the Polunsky Unit. He confirmed that appellant was a talented artist and that he did some murals around the prison. He stated that appellant was one of the best painters ever to work for him.

Appellant's father, Joe Martin, testified that he and appellant's mother never got appellant the help he needed to deal with his alcohol and drug problems. Joe mistakenly assumed that the hospital would provide appellant with the help he needed following his suicide attempt.

Eric Albritton, the appellate counsel for appellant's 1994 convictions, testified that he believed appellant's trial counsel was ineffective because he did not raise evidence regarding appellant's mental condition. Albritton believes that appellant was attempting to commit suicide by provoking the officers that day in the maize field. Albritton admitted, however, that he lost this argument on both appeal and petition for discretionary review.

Appellant presented his own prison-classification expert, Frank Aubuchon. Aubuchon had been the former administrator of unit classification for TDCJ. Aubuchon detailed the type of restrictions and security present when an inmate is assigned to administrative segregation. He described the living environment, the restraints used to transport an inmate assigned to administrative segregation, and the fact that the inmate would remain handcuffed even during medical visits. Aubuchon opined that appellant would remain in administrative segregation for the rest of his life if he received a sentence of life without parole.

Finally, Dr. Roger Saunders, a forensic clinical psychologist, testified that appellant has major or "severe" depressive disorder that was first evidenced by appellant's suicide attempt at the age of eleven. Saunders noted that appellant's medical records also showed that he was diagnosed with bi-polar disorder, mood disorder, substance-abuse disorder, and dependent personality features. He stated that the depressive disorder brought on appellant's alcohol and drug problems and probably caused appellant to quit school. He also testified that a severe depressive disorder can cause thoughts of doing things that are irrational and irresponsible. However, Saunders also testified that this depressive disorder is a very treatable illness and that appellant was receiving treatment while incarcerated. He also confirmed that there was no evidence in appellant's records that he was experiencing a depressive episode at the time of the instant capital murder.

Appellant argues that the future-dangerousness evidence should be outweighed by the mitigating evidence he presented, plus the facts that Canfield's death was actually more of a vehicular accident than an intentional murder, that he had not actually harmed anyone during his previous offenses, and that he had a good disciplinary record while incarcerated. However, while this Court can review the objective evidence of future dangerousness, we do not review the jury's normative decision on mitigation. Colella, 915 S.W.2d at 845. Nor do we weigh the aggravating versus mitigating factors. McFarland v. State, 928 S.W.2d 482, 497-98 (Tex. Crim. App. 1996). Therefore, we defer to the jury's conclusion that the mitigating evidence was not sufficient to warrant a sentence of life imprisonment.

The circumstances of the instant offense suggest that appellant's acts were calculated and deliberate. Given these facts, plus appellant's written admission that he is ready and willing to use violence to get out of a lengthy prison sentence and the nature of his previous offenses, we conclude that a rational jury could find that there is a probability that appellant will commit criminal acts of violence that constitute a continuing threat to society. Point of error three is overruled.

JUROR MISCONDUCT

In points of error four, five and ten, appellant focuses on one specific act of alleged juror misconduct - juror Carrie Doak's negative response to question 79 of the juror questionnaire regarding whether she, a family member, or friend ever worked for the prison system, when, in fact, Doak's husband had worked as a guard and been stabbed by an inmate. Specifically, in point of error four, appellant contends that Doak withheld material information that denied appellant "his right to intelligently exercise his challenges resulting in him being denied a fair trial." In point of error five, appellant contends that the trial court abused its discretion by denying his motion for new trial because Doak's alleged "material misrepresentation" on the juror questionnaire "resulted in the appellant being denied a trial [before] an impartial jury." In point of error ten, he argues that the trial court erred in denying his motion for new trial because Doak discussed this previously unrevealed information with the rest of the jury, thereby denying him a fair trial before an impartial jury.

A review of the record shows that, while filling out the juror questionnaire, Doak answered the following question in the negative:

79. Have you, a family member, or friend ever been employed, served in, or been a member of, any local, state, federal, or other law enforcement agency, including, but not limited to, any police department, any Sheriff's Office, office of any District or County Attorney, Attorney General's office, or any prison system?

During individual voir dire, appellant did not ask Doak whether she knew anyone who had ever worked for the prison system. Doak was accepted as a member of the jury. We note that two other prospective jurors with known connections to the Texas prison system were accepted as jurors. Juror Jerel Thornhill had formerly worked at the Limestone County Detention Center. Counsel did not ask him whether he ever encountered violence during his employment. Juror Brenda Green indicated that, while she and her former husband were married, he had been a Texas Department of Corrections ("TDC") ⁽³⁾ prison guard for 20 years, including "working the death chamber." Counsel did not question her regarding whether her former husband experienced violence on the job. After the trial concluded, it was learned that Doak's husband had been employed in the Texas prison system.

Appellant filed a Motion for New Trial alleging in one of his grounds that Doak had "withheld material information" at voir dire that denied him an impartial jury. Appellant relied upon the affidavit of juror Lori Ann Jenkins, in which she claimed that the jury considered outside evidence during punishment deliberations. ⁽⁴⁾

Specifically, Jenkins stated:

Mrs. Doak told the jury about an incident involving her husband. She said that her husband had worked in the Texas prison system and had been stabbed by an inmate while employed there. As I recall, she said that her husband had worked in Administrative Segregation when the stabbing occurred.

The trial court held an evidentiary hearing on the Motion for New Trial. Nine of the twelve jurors testified at the hearing as follows:

Monica Cooke: Cooke did not hear Doak have any discussions about a stabbing incident that involved her husband while he worked in TDC. She was not aware of any discussions by any members of the jury about any acts of violence that took place in TDC except those that were introduced during the trial.

Jerel Thornhill: Thornhill did not hear any discussions about anyone having any personal experience regarding acts of violence in administrative segregation or in TDC in general. He specifically testified that he did not remember any juror discussing his or her knowledge of a family member or friend being stabbed or subjected to any type of violence while employed by TDC.

Carrie Doak: Doak testified that her husband had worked in administrative segregation at the Ferguson Unit. He was stabbed by an inmate once while on the job. He worked for TDC seventeen years ago, for a period of only eighteen months. He did not think that the incident was a "big deal." She did not discuss this at all during deliberations nor did she hear anyone else discuss it. She noted that the only time that it came up was "three of us ladies were talking about our experiences and what our husbands had done," when they were just getting to know each other during the trial. It was not a long or detailed conversation. The other ladies were "Connie" and "Peggy." Jenkins was not part of the conversation, but if Jenkins was around them where she could hear, it is possible that Jenkins overheard it. Doak testified that the fact that her husband had been subjected to an assault in TDC had absolutely no impact on her deliberations.

Regarding the juror questionnaire, Doak testified that her incorrect response was an accident - she did not mean to answer the question incorrectly. When filling out the questionnaire, she was in a rush to get to a doctor's appointment regarding her first grandchild. She did not even know that she answered it incorrectly until she was contacted after the trial was over. The questionnaire was 23 pages and question 79 was long - she is sure that she read the first three lines and did not see the last three or four words of the paragraph. Also, the question did not mention TDC. She was shocked that she was selected for the jury and noted that had she been verbally asked during voir dire, she would have told them her husband had worked in the prison system. She stated that she lived in a small town and the incident was public knowledge. Doak knew half of the jury "very well," although she did not know Jenkins. She did note that she and Jenkins had friends in common. Also, when she realized that some of the other jurors had experience with the prison system - some up to 30 years and with death row - she thought that it must not matter.

Brenda Green: Green testified that her former husband worked for TDC and she had discussed that with counsel during voir dire. During lunch one day, Doak mentioned that her husband had once worked at TDC and had been stabbed while working there. The only other person that may have been privy to the conversation other than herself and Doak was "whoever was sitting besides us," but she could not remember who that was. Green testified that the incident was not discussed during deliberations by anyone, nor does she remember anyone discussing it at any other time.

Pegene Parker: Parker never heard anyone discuss any specific instances involving acts of violence regarding their family members or themselves at TDC.

Matthew Winn: Winn never had any knowledge about Doak's husband being stabbed while working at TDC.

Thomas Davis: Davis testified that he has known Mr. and Mrs. Doak for a long time. He knew that Mr. Doak had worked for TDC and had at one time been the victim of a stabbing. He did not hear anyone discussing this incident during deliberations. He believes Doak mentioned that her husband used to work for TDC when the jurors were casually getting to know one another in the first couple of days the jury was at the courthouse. He does not recall ever hearing Doak mention that her husband had been stabbed. He testified that even if someone had brought up the incident during deliberations it would not have made a difference because they had the evidence in the case - "paperwork out in front of us that had stated what all goes on in [prison]."

James Nash: Although Nash was the foreperson of the jury, neither appellant nor the State questioned him regarding Doak or her husband.

Lori Jenkins: Jenkins stated that Doak mentioned her husband and the stabbing incident shortly after they were convened as a jury. She stated that Doak mentioned it over and over and some of the jurors talked about it a lot. She believed that this also occurred during jury deliberations. However, she also testified that this information had no influence on her own vote and she could not say how it influenced others.

In point of error four, appellant contends that Doak purposefully withheld material information that her husband was employed as a prison guard and was stabbed by an inmate. Appellant argues that because Doak withheld this material information, he was denied the opportunity to exercise challenges intelligently, thus hampering his selection of a disinterested and impartial jury.

We note that both the Sixth Amendment and Article I, Section 10 of the Texas Constitution provide criminal defendants the right to a trial by an impartial jury. Uranga v. State, 330 S.W.3d 301, 304 (Tex. Crim. App. 2010). The protection under the Texas constitution is no greater than that offered by the federal constitution. Jones v. State, 982 S.W.2d 386, 391 (Tex. Crim. App. 1998).

This Court has found that "essential to the Sixth Amendment guarantees of the assistance of counsel and trial before an impartial jury is the right to question specific veniremembers in order to intelligently exercise peremptory challenges and challenges for cause." Franklin v. State, 138 S.W.3d 351, 354 (Tex. Crim. App. 2004)(citation omitted). As well, "where a juror withholds material information during the voir dire process, the parties are denied the opportunity to exercise their challenges, thus hampering their selection of a disinterested and impartial jury." Id. However, it must be established that the juror withheld the information during voir dire and that the information was withheld despite the defendant's exercise of due diligence. Id. at 355-56; Jones v. State, 596 S.W.2d 134, 137 (Tex. Crim. App. 1980), overruled on other grounds, Sneed v. State, 670 S.W.2d 262, 266 (Tex. Crim. App. 1984).

In Gonzales v. State, 3 S.W.3d 915, 916 (Tex. Crim. App. 1999), we specifically addressed, for the first time, "the extent to which counsel may rely on information provided in written juror questionnaires." Prior to Gonzales, our cases addressing juror non-disclosure were limited to the verbal-questioning portion of the voir dire process. See, e.g., Franklin, 138 S.W.3d at 352; Armstrong v. State, 897 S.W.2d 361, 362 (Tex. Crim. App. 1995); Jones, 596 S.W.2d at 136. In Gonzales, we considered a line of cases holding that purportedly material information is not deemed to have been "withheld" when defense counsel fails to ask sufficient questions during the voir dire process. Gonzales, 3 S.W.3d at 916. When considering counsel's reliance on particular responses to a juror questionnaire, we held that "'diligent counsel' will not rely on written questionnaires to supply any information that counsel deems material." Id. at 917.

As in Gonzales, defense counsel in this case did not ask any oral questions in an effort to verify whether prospective jurors had any connection to the prison system. Further, even when a prospective juror answered question 79 in the affirmative, counsel did not inquire during voir dire whether that person, her relative, or her friend experienced violence while employed with the prison system. Because counsel did not follow up on the written questionnaire with more specific verbal questioning, it appears that counsel did not consider this information to be "material" to the case. We further note that the information "withheld" by Doak does not rise to the level of information that we have previously held to be material. See, e.g., Franklin, 138 S.W.3d 351 (after stating that she knew none of the parties involved in trial, juror informed court that she was the assistant leader of victim's Girl Scout troop and that her own daughter was also in the victim's troop); Von January v. State, 576 S.W.2d 43 (Tex. Crim. App. 1978)(juror failed to disclose that he knew the deceased victim's family although asked directly during voir dire); Salazar v. State, 562 S.W.2d 480 (Tex. Crim. App. 1978)(in case where defendant was on trial for exposing genitals to a young girl, juror failed to disclose that he had been prosecution witness in criminal proceeding where he was eyewitness to sexual assault of own daughter). As Doak did not withhold material information, point of error four is overruled.

In point of error five, appellant asserts that the trial court abused its discretion in denying his motion for new trial because Doak withheld material information that denied him a trial before an impartial jury. ⁽⁵⁾ A trial court's ruling denying a defendant's motion for new trial is reviewed under an abuse of discretion standard. 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, but simply determine whether the trial court's analysis was arbitrary or unreasonable. Id.; Lewis v. State, 911 S.W.2d 1, 7 (Tex. Crim. App. 1995). The trial court is the sole judge of the credibility of the testifying jurors. Salazar, 38 S.W.3d at 148. "Where there is conflicting evidence on an issue of fact as to jury misconduct, the trial judge determines the issue and there is no abuse of discretion in overruling the motion for new trial." Thomas v. State, 699 S.W.2d 845, 854 (Tex. Crim. App. 1985).

As discussed in point of error four, the information at issue was not material and appellant did not use due diligence to elicit it. See Franklin, 138 S.W.3d at 355-56. Therefore, the trial court did not err in overruling the motion for new trial. However, even assuming arguendo that appellant could show error, he cannot show that he was harmed.

We do not hold that an appellant is entitled to a reversal of his conviction in any case in which he discovers that a juror withheld information during voir dire. Where the information is not material and the juror can state that it will not affect his deliberation or verdict, an appellant may be unable to show harm.

Gonzales, 3 S.W.3d at 912 n.2, quoting Salazar v. State, 562 S.W.2d 480, 482 n.5 (Tex. Crim. App. 1987). Non-constitutional error will be disregarded if it did not affect the appellant's substantial rights. Tex. R. App. P. 44.2(b). ⁽⁶⁾

The record here supports a credibility determination that Doak remained an impartial juror throughout appellant's trial. Doak specifically testified that she was "absolutely" not influenced in her deliberations by the stabbing incident involving her husband. Notably, the incident occurred over seventeen years before and, at that time, Doak's husband did not consider the incident to be a "big deal." Because appellant cannot show Doak's verdict was affected by her husband's stabbing incident when he was a guard, point of error five is overruled. ⁽⁷⁾

In appellant's tenth point of error, he argues that the trial court erred in overruling his motion for new trial because Doak discussed the stabbing incident with other jurors, thereby denying him a fair trial before an impartial jury. He specifically points to the testimony of Doak and jurors Green, Davis, and Jenkins.

The record shows that Doak's presence on the jury did not unduly influence the other jurors. Only jurors Green, Davis, and Jenkins testified that they knew or heard any information regarding Doak's husband. Green and Davis testified that the incident involving Doak's husband was not discussed during jury deliberations and this was confirmed by every other juror questioned at the motion for new trial hearing with the exception of Jenkins. However, even Jenkins could not say that her knowledge of the stabbing incident influenced her deliberations or the deliberations of the other jurors.

Because appellant cannot show that Doak's presence as a juror denied him his right to an impartial jury, the trial court did not abuse its discretion in denying appellant's motion for a new trial. See Salazar, 38 S.W.3d at 148. Point of error ten is overruled.

JURY CHARGE: GUILT PHASE

In point of error six, appellant asserts that the trial court erred in denying his requested jury instruction regarding "escape." Specifically, appellant requested that the jury be instructed that escape is not a continuing offense, that an escape is complete when the defendant "moves beyond the bounds of his confinement without authority," and that if the jury had a reasonable doubt that the "escape" was completed before he hit Canfield with the truck, then it must acquit appellant of capital murder.

Article 36.14 requires a judge to deliver to the jury "a written charge distinctly setting forth the law applicable to the case." Here, appellant asserts that the law clearly states that one completes the offense of escape when he crosses the property line of the prison in which he is confined. Appellant relies upon the holdings in Lawhorn v. State, 898 S.W.2d 886, 890 (Tex. Crim. App. 1995), and Fitzgerald v. State, 782 S.W.2d 876, 881 (Tex. Crim. App. 1990).

As we stated in point of error one, the State did not have to prove the statutory offense of "escape." See point of error one, supra.; Tex. Penal Code §19.03(a)(4). Therefore, instructing the jury on the offense of escape as it pertains to the offense of capital murder would have been error. Further, we note that appellant misconstrues both Lawhorn and Fitzgerald.

Appellant asserts that both Fitzgerald and Lawhorn hold that the offense of escape is completed once an inmate moves beyond the actual property line of the prison - in this case, the fence surrounding the vegetable fields. He relies on the following sentence in Fitzgerald: "Thus Appellant with his cohorts committed the felony offense of escape by moving beyond bounds of Beto II Unit without authority, and his offense was complete at that point." 782 S.W.2d at 879. However, our Fitzgerald holding is limited to the facts of that case. In Fitzgerald, the defendant and another inmate cut through a perimeter fence unnoticed sometime before they were discovered missing at 7:00 a.m. Id. at 877 n.3. In Lawhorn, the defendant escaped from a transport van. Officer Waddle, the guard in the van, attempted to chase him but soon lost sight of him. The defendant was later spotted by another officer and apprehended. 898 S.W.2d at 888. We held under those facts that the offense of escape was completed when the defendant left the "state of detention or restraint by a peace officer" - when the defendant "ran from the van, or at the very latest, when Waddle gave up the chase and returned to the van containing her other prisoners." Id. at 890.

"Escape," for the purposes of section 38 of the Penal Code, is defined as an "unauthorized departure from custody." Tex. Penal Code §38.01(2). We have held that phrase to mean "the act of leaving a state of detention or restraint by a peace officer and once the act is done the escape is accomplished." Lawhorn, 898 S.W.2d at 890 (emphasis added). In Fitzgerald, no guard attempted to prevent the inmates from leaving the prison, and so their escape was complete when they left the grounds. Fitzgerald did not contemplate a situation in which the inmates were confronted by guards while leaving the unit. In Lawhorn, the escape was complete when the defendant got away from the guard in the van. Therefore, even assuming that these cases defining the offense of escape under section 38.01(2) have any applicability to appellant's case, they tend to show that appellant's escape was not complete at the time that he killed Canfield because he had not left the effective restraint of a peace officer.

The trial court did not err in refusing appellant's requested instruction as it would have been a misstatement of the law. Point of error six is overruled.

In points seven and eight, appellant contends that the trial court erred by failing to give a lesser-included offense instruction on escape and by not providing appellant's proposed instruction on the lesser-included offense of escape in the court's jury charge. In particular, he claims that escape is a lesser-included offense of capital murder under section 19.03(a)(4), that he could have just been convicted of escape, as he lacked the required intent to commit murder, and that his instruction on the lesser-included offense of escape was proper.

In deciding whether a defendant is entitled to a lesser-included offense charge, we consider all of the evidence introduced at trial, regardless of its source. Goodwin v. State, 799 S.W.2d 719, 740 (Tex. Crim. App. 1990). This Court applies a two-pronged test in its review. Rousseau v. State, 855 S.W.2d 666, 672-75 (Tex. Crim. App. 1993); Goodwin, 799 S.W.2d at 740-41. Under the first prong, it must be shown that the lesser-included offense is included within the proof necessary to establish the offense charged. Id. The second prong then requires some evidence in the record that would have permitted a rational jury to find the defendant guilty of only the lesser-included offense. Id. When making the determination of whether an instruction on a lesser-included offense should have been given, the credibility of the evidence, whether it conflicts with other evidence or whether it is controverted, may not be considered. Banda v. State, 890 S.W.2d 42, 60 (Tex. Crim. App. 1994).

As held above, the offense of escape is not a lesser-included offense of capital murder under section 19.03(a)(4) because the legislature was not using the term "escaping" to refer to the offense of escape; rather, they were using it in its common usage to describe a process. See point of error one, supra. Because the process of "escaping" is not an offense in and of itself, it is not within the proof necessary to establish the charged offense. Therefore, appellant does not meet the first prong of the test. Rousseau, 855 S.W.2d at 672-75. Accordingly, the trial judge did not err in overruling appellant's objection that a lesser-included offense instruction should have been given. For the same reason, the trial judge also did not err in denying the appellant's proffered lesser-included offense instruction. ⁽⁸⁾ Points of error seven and eight are overruled.

PUNISHMENT DELIBERATIONS

In point of error nine, appellant contends that the trial court committed reversible error by giving the jury a "coercive" instruction during punishment deliberations. Appellant argues this instruction denied him his right to trial by an impartial jury.

Article 37.071 §2(g) ⁽⁹⁾ compels the trial court to enter a life sentence if the jury is unable to answer any special issue. Howard v. State, 941 S.W.2d 102, 121 (Tex. Crim. App. 1996); Montoya v. State, 810 S.W.2d 160, 166 (Tex. Crim. App. 1989). However, the trial court is not bound to enter a life sentence after the first sign of juror impasse. Howard, 941 S.W.2d at 121. Rather, the court may do so if it determines, in its discretion, that the jury has been kept together for such a time as to render it altogether improbable that it can agree. Id.; see also Article 36.31. When reviewing the trial court's discretion in this regard, this Court will consider the sheer length of the trial and amount

of evidence presented to the jury. Id.; Green v. State, 840 S.W.2d 394, 407 (Tex. Crim. App. 1992).

The record shows that the evidence in this case took eleven days to present and involved 43 different witnesses and 122 admitted exhibits. Following closing arguments at punishment, the jury was sent to deliberate at 11:09 a.m. At 2:37 p.m., the jury sent out the charge with an attached note. The jury had answered "yes" to special issue one and the issue was signed by the foreperson on the verdict form. Special issue two was not answered, but the accompanying note stated: "On special issue #2 division is 9 no 3 yes. Guidance?"

Appellant argued that the jury had returned a final verdict because the jury was complying with the instruction on page four of the punishment charge which reads:

If in considering Special Issue Number 2 the vote of the jurors is not unanimously "NO" or not at least ten (10) in favor of a "YES", then there shall be no answer for that Special Issue and the Jury Foreman should not sign his or her name to any answer form for that Special Issue Number 2.

Therefore, appellant asserted that the trial court must accept this as a final verdict and impose a life sentence. The trial court overruled the request and gave the jury the following instruction: "Please continue to follow the court's instructions as contained in the court's charge and continue to deliberate." Appellant objected that this instruction was coercive and that the jurors who answered "yes" to the second special issue would be "bullied" by the other jurors.

At 3:24 p.m., the jury sent out another note regarding evidence of appellant's mental-health issues. Appellant again reurged his objection and stated that "we feel at this point that deliberations are now becoming coercive in nature to try to get the three hold outs to change their verdict in order to give a death sentence to [appellant]." The State responded that there was no evidence of coercion and that the jury had barely started deliberating as they had only been out for four hours and this was a long case. The trial court again overruled appellant's objection, noting that there was nothing before him that would lead him to the conclusion that "any bullying was going on."

At 4:40 p.m., the jury sent out a third note requesting to have testimony read back to them. Appellant again reurged his objection which the trial court again denied. The jury was recessed until the following afternoon at 1:00 p.m., so that the court reporter could locate the requested testimony and one of the jurors could attend a funeral.

When court reconvened the next afternoon, appellant again urged his objection to the jury's continued deliberation. The trial court overruled the objection. The jury returned its verdict at 3:15 p.m., having unanimously answered "yes" to the first special issue and "no" to the second special issue. The jury was polled, and each juror answered that this was his or her verdict.

Appellant also raised this issue in his Motion for New Trial. ⁽¹⁰⁾

Appellant attached an affidavit by juror Jenkins wherein she stated that she and the other two jurors who originally voted "yes" on the second special issue were harassed and bullied into changing their answers. She also stated that because the judge sent the case back to them to continue deliberating, she believed that the jury had to be unanimous on their answer before a verdict could be reached. She stated that she would not have changed her vote to "no" had she not believed this.

At the motion for new trial hearing, Nash, the jury's foreman, testified that when he sent the "9-3" note out, the jury had not yet taken a formal vote on the second special issue - everyone had just expressed their initial opinions. Nash was merely hoping that the trial court would tell them to take a break for the rest of the day because it had been a long trial and everyone was tired. No juror - not even Jenkins - testified to changing his or her vote because of the trial court's instruction to continue deliberations. ⁽¹¹⁾

The trial court is not bound to declare a mistrial at the first sign of jury impasse. Howard, 941 S.W.2d at 121. Here, the jury first asked for guidance from the trial court when it had deliberated for a period of less than three-and-a-half hours. This trial involved a great deal of evidence: 43 witnesses and 122 exhibits, presented during eleven days of guilt and punishment testimony. The jury had obviously finished deliberating on the first special issue, but there was no indication that they were finished deliberating on the second special issue. The note did not say the jury was deadlocked but merely stated that their current "division" was "9 no 3 yes." The fact that the jury asked to see evidence and have testimony read back is further proof that they had not yet finished deliberating. The trial court did not err when it instructed the jury to continue deliberations. See id. at 121-22 (trial court did not err giving instruction to continue capital-punishment deliberations after jury note said they were "deadlocked" at 10-2 after eight hours of deliberating); Green, 840 S.W.2d at 407 (trial court did not err in instructing jury to continue deliberations and overruling motion to impose a life sentence after jury sent "deadlocked" note after six-and-a-half hours of deliberating). Point of error nine is overruled.

JURY CHARGE: PUNISHMENT PHASE

In point of error eleven, appellant asserts that he was harmed when the trial court overruled his objection that the punishment charge failed to instruct the jury that "probability" meant "more likely than not." In point of error twelve, he argues that he was harmed when the trial court overruled his objection that the charge failed to define the phrase, "reduce moral blameworthiness." In point of error thirteen, appellant claims that he was harmed when the trial court overruled his objection that the charge failed to instruct the jury that "society" meant "society in prison," and not the free world.

We have previously decided these issues adversely to appellant. See Saldano v. State, 232 S.W.3d 77, 107 (Tex. Crim. App. 2007)("probability"); Druery v. State, 225 S.W.3d 491, 509 (Tex. Crim. App. 2007)("probability," "moral blameworthiness"); Hunter v. State, 243 S.W.3d 664, 672 (Tex. Crim. App. 2007) ("society"); Blue v. State, 125 S.W.3d 491, 504-05 (Tex. Crim. App. 2003)("probability," "moral blameworthiness," "society"). Appellant provides no argument or authority to persuade us to revisit these issues. Points of error eleven, twelve, and thirteen are overruled.

CONSTITUTIONALITY OF THE TEXAS DEATH PENALTY

In points of error fourteen and fifteen, appellant argues that the Texas capital-sentencing scheme is unconstitutional because it fails to assign a burden of proof on the mitigation special issue and that the trial court erred in rejecting his request for an instruction assigning the burden to the State. We have previously rejected these arguments. See Blue, 125 S.W.3d at 500-01; Druery, 225 S.W.3d at 509. Further, this Court has held that the mitigation special issue is a defensive issue for which the State has no burden of proof. Williams v. State, 273 S.W.3d 200, 221-22 (Tex. Crim. App. 2008). Points of error fourteen and fifteen are overruled.

In point of error sixteen, appellant posits that the mitigation issue is unconstitutional because meaningful appellate review of the sufficiency of the evidence is impossible. We have previously rejected the claim that the issue violates the constitution because it deprives a defendant of "meaningful appellate review." Russeau v. State, 171 S.W.3d 871, 886 (Tex. Crim. App. 2005); Prystash v. State, 3 S.W.3d 522, 535-36 (Tex. Crim. App. 1999); Green v. State, 934 S.W.2d 92, 106-07 (Tex. Crim. App. 1996); McFarland v. State, 928 S.W.2d 482, 498-99 (Tex. Crim. App. 1996). Point of error sixteen is overruled.

In appellant's seventeenth and eighteenth points of error, he argues that the "12-10 rule" of Article 37.071, which requires at least ten votes for the jury to return a negative answer to the first special issue and at least ten votes for the jury to return an affirmative answer to the second special issue, violates the Eighth Amendment to the United States Constitution. We have repeatedly rejected identical claims. Russeau, 171 S.W.3d at 886; Lawton v. State, 913 S.W.2d 542, 558-59 (Tex. Crim. App. 1995). In point of error nineteen, appellant further posits that the "12-10 rule" violates his Sixth Amendment right to an impartial jury. Appellant presents no argument or authority applying the Sixth Amendment to this provision of Article 37.071; therefore, this issue is inadequately briefed. See Tex. R. App. P. 38.1(I). Points of error seventeen, eighteen, and nineteen are overruled.

Finally, in his twentieth point of error, appellant contends that Article 37.071 violates the Eighth Amendment because it fails to require that jurors be informed that a single holdout juror on any special issue will result in an automatic life sentence. We have previously decided this issue adversely to appellant. Russeau, 171 S.W.3d at 886; Shannon v. State, 942 S.W.2d 591, 600-01 (Tex. Crim. App. 1996); Lawton, 913 S.W.2d at 559. Point of error twenty is overruled.

We affirm the judgment of the trial court.

DELIVERED: October 31, 2012

DO NOT PUBLISH

1. Unless otherwise indicated all references to Articles refer to the Code of Criminal Procedure.

2. See discussion of Lawhorn and Fitzgerald in point of error six, infra.

3. TDC was later renamed the Texas Department of Criminal Justice.

4. Texas Rule of Evidence Rule 606(b) states that a juror may not testify or make an affidavit about any matter or statement occurring during deliberations or the effects of anything on any juror's mind as influencing the verdict with two exceptions: (1) "whether any outside influence was improperly brought to bear upon any juror," or (2) "to rebut a claim that the juror was not qualified to serve." In points of error four, five, nine, and ten, appellant relies upon an affidavit and testimony obtained during the hearing on the Motion for New Trial that implicate Rule 606(b). Neither party objected to the use of this evidence.

We express no opinion as to whether the admittance of this evidence was proper; however, as no objections were lodged, the testimony and affidavits of the jurors are available for our consideration in determining whether reversible error occurred. See Salazar v. State, 38 S.W.3d 141, 147 (Tex. Crim. App. 2001); see also McQuarrie v. State, No. PD-0803-11, slip op. at 9-18, ___ S.W.3d ___ (Tex. Crim. App. Oct. 10, 2012).

5. For the first time on appeal, appellant claims that Doak also withheld information regarding whether any member of her family had ever been the victim of a crime (Question 66 on the juror questionnaire) because a stabbing is a criminal offense. Appellant has not preserved this claim for appellate review. Tex. R. App. P. 33.1(a).

6. Cf. Franklin, 138 S.W.3d at 354-58 (harm will be reviewed under Texas Rule of Appellate Procedure 44.2(a) for constitutional error where information withheld is material and counsel was diligent in trying to elicit the information).

7. At the end of his argument, appellant briefly asserts that Doak was guilty of "corrupt conduct" by withholding material information on her questionnaire and cites to Texas Rule of Appellate Procedure 21.3(d). Nowhere in his argument does appellant address how a juror's act of non-disclosure could amount to "corrupt conduct" within the meaning of Rule 21.3(d). Without more, we will not evaluate this line of appellant's argument. See Tex. R. App. P. 38.1(I).

8. Appellant argues that escape must be a lesser-included offense of capital murder because the trial court included the statutory definition of escape in the charge. However, the statutory definition was not applicable to the capital-murder charge but to the lesser-included "murder in the course of another offense" charge that appellant also received. Appellant received the following lesser-included offense charges: murder in the course of the commission of another offense (Tex. Penal Code §19.02(b)(3)), aggravated assault (Tex. Penal Code §22.02(a)), manslaughter (Tex. Penal Code §19.04), and criminally negligent homicide (Tex. Penal Code §19.05).

9. Formerly codified as Article 37.071 §2(e). Howard discusses the former codification of the article which is substantively the same.

10. We express no opinion as to whether the admittance of this evidence was proper; however, as no objections were lodged, the testimony and affidavits of the jurors are available for our consideration in determining whether reversible error occurred. See Salazar v. State, 38 S.W.3d 141, 147 (Tex. Crim. App. 2001); see also McQuarrie v. State, No. PD-0803-11, slip op. at 9-18, ___ S.W.3d ___ (Tex. Crim. App. Oct. 10, 2012).

11. Appellant contends that several jurors testified at the motion for new trial hearing that they thought that they were "coerced" into believing that the verdict had to be "unanimous" or they "all had to agree" either 12-0 or 10-2, because the trial court instructed them to continue deliberating. However, we have reviewed the record and we do not find that any juror, including Jenkins, testified as such.

Jerry Martin

Jerry Martin and John Ray Falk escaped from a work detail at the Wynne Unit near
Huntsville, Texas on Sept. 24, and were recaptured that day.

The victim

Corrections officer Susan Canfield, 59.