Nenno v. State, 970 S.W.2d 549 (Tex.Crim.App.
1998) (Direct Appeal).
Defendant was convicted in the District Court,
Harris County, Denise Collins, of capital murder, and he was
sentenced to death. On automatic direct appeal, the Court of
Criminal Appeals, Keller, J., held that: (1) evidence supported
special finding of future dangerousness for raping and murdering
seven-year-old girl; (2) defendant was not “in custody” when he
made statements; (3) defendant's statements were voluntary; (4)
prosecutor did not engage in improper argument; (5) expert
testimony regarding future dangerousness was sufficiently reliable
to be admissible; and (6) evidence of defendant's encounter with
another girl was admissible as character evidence during penalty
KELLER, Judge, delivered the opinion of the
Court in which McCORMICK, Presiding Judge, and MEYERS, MANSFIELD,
HOLLAND, and WOMACK, Judges, joined.
Appellant was convicted in January 1996 of
capital murder, committed on or about March 23, 1995. Tex. Penal
Code § 19.03(a)(2).FN1 Pursuant to the jury's answers to the
special issues set forth in Texas Code of Criminal Procedure
Article 37.071 §§ 2(b) and 2(e), the trial judge sentenced
appellant to death. Article 37.071 § 2(g).FN2 Direct appeal to
this Court is automatic. Article 37.071 § 2(h). Appellant raises
nineteen points of error. We will affirm.
FN1. § 19.03(a)(2) provides that a person
commits capital murder when he commits murder under § 19.02(b)(1)
and “the person intentionally commits the murder in the course of
committing or attempting to commit ... aggravated sexual assault”
A. SUFFICIENCY OF THE EVIDENCE
1. Future dangerousness
In point of error two, appellant contends that
the evidence is legally insufficient to support the jury's answer
to the future dangerousness special issue.FN3 A legal sufficiency
review of that issue is governed by the standard set out in
Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d
560 (1979); the question is whether, in the light most favorable
to the prosecution, any rational trier of fact could have returned
an affirmative answer. Moore v. State, 935 S.W.2d 124, 126 (Tex.Crim.App.1996),
cert. denied, 520 U.S. 1219, 117 S.Ct. 1711, 137 L.Ed.2d 835
(1997). The facts of the offense, alone, can be sufficient to
support an affirmative answer to the special issue. Walbey v.
State, 926 S.W.2d 307, 310 (Tex.Crim.App.1996).
FN3. The issue asks: “Whether there is a
probability that the defendant would commit criminal acts of
violence that would constitute a continuing threat to society.”
Article 37.071 § 2(b)(1).
The facts of the present offense were egregious.
Appellant raped and choked to death a seven-year-old girl. However,
we need not determine whether such facts, by themselves, would
support an affirmative answer to the future dangerousness issue.
The State also presented expert testimony that appellant would be
a threat to society. This testimony came from Kenneth Lanning, a
Supervisory Special Agent in the Behavioral Science unit of the
FBI who specialized in studying the sexual victimization of
children. From information given about appellant, Lanning
concluded that appellant was a pedophile. Lanning testified that
such a person was difficult to rehabilitate. After being given a
lengthy hypothetical matching the facts shown by the evidence,
Lanning testified that an individual matching the hypothetical
“would be an extreme threat to society and especially children
within his age preference.” This evidence, along with the
circumstances of the crime, is sufficient for a rational jury to
conclude that appellant poses a future danger to society. Point of
error two is overruled.
In point of error three, appellant contends
that the evidence is legally insufficient to support the jury's
answer to the mitigation special issue.FN4 But this Court does not
conduct a sufficiency review of that issue. McGinn v. State, 961
S.W.2d 161, 166 (Tex.Crim.App.1998). Point of error three is
FN4. That issue asks: Whether, taking into
consideration all of the evidence, including the circumstances of
the offense, the defendant's character and background, and the
personal moral culpability of the defendant, there is a sufficient
mitigating circumstance or circumstances to warrant that a
sentence of life imprisonment rather than a death sentence be
imposed. Article 37.071 § 2(e).
1. Motion to suppress
In point of error ten, appellant contends that
the trial court erred in failing to draft findings of fact and
conclusions of law regarding his motion to suppress. We granted
the State's motion to abate, and the case was remanded to the
trial court to make such written findings and conclusions. The
trial court has done so, and the written findings and conclusions
have been forwarded to this Court as a supplemental transcript.
Because appellant obtained the appropriate relief on this matter,
point of error ten is now moot.
In points of error seventeen through nineteen,
appellant contends that the trial court erred in overruling his
motion to suppress. He contends that the trial court's admission
of his oral statements to Detective Taber violated Article 38.22
and that his oral and written statements were involuntary under
the United States Constitution.
The trial court's findings of fact are in
narrative form. Except for summarizing the consent to search
portions, this “Facts” subsection consists of relevant excerpts of
the trial court's findings set out verbatim. Our review shows that
the findings are sufficiently supported by the record.
Detective Johnson received the defendant's name
as a possible suspect and referred it to Detectives Wedgeworth and
Taber for a follow-up investigation. Detectives Wedgeworth and
Taber went to the defendant's home at 17602 Bullis Gap several
times on the afternoon of March 25, 1995. The defendant lived one
to one-and-a-half blocks from where the complainant had last been
seen. On the third visit, the defendant-dressed only in a white
bath towel around his waist-finally answered the door. The
defendant indicated he was willing to talk about the missing child
and permitted the detectives to come inside. The defendant
appeared very cooperative and willing to talk. When asked whether
he knew the child, the defendant became visibly nervous and shook
and denied knowing or seeing her ever before. The defendant
permitted the detectives to search his house and Detective
Wedgeworth conducted a superficial search but found nothing out of
The detectives asked the defendant why somebody
in the neighborhood asked for him to be checked out and the
defendant replied there was an incident in the spring when he was
accused of attempting to lure a child into his house and pull off
her pants. The defendant was visibly shaking and appeared
extremely nervous. Detectives Wedgeworth and Taber visited with
the defendant at his house for a total of approximately ten
minutes. The detectives then asked the defendant if he would come
to the command post and make a written statement and the defendant
stated he had no problem with that. The detectives informed the
defendant that several blocks away a trailer had been set up as a
command post. The detectives then returned to the command post.
The detectives made no promises or threats to the defendant during
this initial encounter.
Five to ten minutes later, the defendant
arrived at the command post. Detective Taber led the defendant
into a small interview room. Detective Taber read the defendant
the following rights from the blue card provided by the Harris
County District Attorney's Office:
You have the right to remain silent and not
make any statement at all. Any statement you make may be used
against you and probably will be used against you at your trial.
You have a right to have an attorney present to advise you prior
to and during any questioning. If you're unable to hire a lawyer,
you have the right to have a lawyer appointed to advise you prior
to or during any questioning. You may terminate the interview at
Detective Taber asked the defendant if he
understood the warnings and the defendant indicated he understood.
Detective Taber asked the defendant if he wanted to waive his
rights and talk about the missing child and the defendant agreed
to talk to the detectives. The defendant appeared to understand
the course of the conversation. The conversation was relaxed, very
soft-spoken, and very low-tone. Detective Taber spoke with the
defendant for approximately an hour. During the interview, the
defendant was offered something to eat and drink. Detective Taber
made it clear from the beginning that the defendant was not under
arrest and that he could go at any time.
When Detective Taber asked the defendant if he
knew why he was there, the defendant replied: “You think I'm a
suspect in the little girl case where she's missing.” Detective
Taber asked the defendant why he thought he would be a suspect;
the defendant stated because of his past incident involving trying
to get a little girl in the residence and removing her pants and
because he liked children. When asked what the defendant had done
the night the complainant had disappeared, the defendant stated he
arrived home, changed clothes, went outside, talked to his
neighbor, and then went inside.
The defendant stated he had had a six-pack of
beer. When asked if there was any reason why a neighbor would say
they had seen the defendant on the same street from which the
complainant had disappeared, the defendant responded: “Well, maybe
I could have been outside my house by the fence, but I just don't
remember.” Detective Taber asked the defendant again the same
question about would it have been possible for him to have been
down the street and if he had heard about the missing girl; the
defendant stated: “Well, it might have been possible but I don't
Detective Taber asked the defendant what he
thought had happened to the child and the defendant said he
thought somebody had kidnapped, raped, and killed her. Detective
Taber asked the defendant what kind of person he thought would do
something like that to a little girl and the defendant said
someone like him. When asked why he responded in that manner, the
defendant answered because of the other incident, the other child,
that he had always thought about being with children and that he
had fantasized about them sexually. The defendant said he
fantasized or dreamed about a former girlfriend and her child and
teaching the child about sex and having sex with the child. The
defendant stated he masturbated several times a week while
fantasizing and masturbated while looking at the neighborhood
children through his window.
Detective Taber asked the defendant what he
thought someone would do with the body of a child if they had
killed the child. The defendant said that after they were finished
with the body of the child, the person would probably take the
child and dump their body on a construction site on 290 just
before Hockley and dump the child's clothes at another location.
When asked whether he had ever thought about doing something like
that, the defendant stated he had thought about it before but he
had never done it. Detective Taber asked the defendant what he
thought should happen to a person responsible for attacking a
little girl and the defendant said the person should be put to
death. Detective Taber asked the defendant what he thought the
result of the police investigation would turn up and the defendant
said it didn't look good for him right now but he hoped that
everything would turn out all right.
Detective Taber asked the defendant if he were
the detective how would he pursue the investigation. The defendant
stated he would look for somebody in the neighborhood, somebody
close by who knew the child and liked children, and he would
concentrate on them. When asked directly whether he had taken, or
was involved in taking, the complainant, the defendant denied it.
The defendant never directly incriminated himself. The defendant
was free to leave. No promises or threats had been made to the
Detective Taber asked the defendant if he would
take a polygraph examination and he said: “Sure, I'll take a
polygraph.” Detective Taber asked the defendant how he thought the
polygraph would turn out and the defendant said he hoped it would
turn out all right. Detective Taber terminated his interview with
Special Agent Young asked the defendant if he
was willing to cooperate. Special Agent Young explained the
polygraph examination and the defendant's right to refuse. The
defendant said it would be no problem and that he would take a
polygraph examination. Officers then made arrangements for a
polygraph examination. Appellant also executed a consent to search
his residence. Officers searched the residence but found nothing
of value to the investigation.
Lt. Raney, a licensed polygraph examiner, met
the defendant at approximately 9:30 p.m. at the command post. Lt.
Raney conducted a two-and-one-half hour pre-test interview. Lt.
Raney reviewed the standard Texas Polygraph Examination Release
Form, State's Exhibit 6, which the defendant voluntarily signed
and which states: “I, Eric Charles Nenno, voluntarily, without
threats, duress, coercion, force, promises of immunity or reward,
agree and stipulate to take a polygraph examination, lie detector
test, for the mutual benefit of myself and the Harris County
Sheriff's Department.” Lt. Raney informed the defendant that the
purpose of the examination is to measure and test him to find out
if he has any knowledge or involvement in the disappearance of the
complainant. The defendant asked no questions and indicated he
understood. The defendant indicated he had not consumed alcohol or
smoked marijuana. The defendant appeared cooperative. The
defendant never indicated that he wanted to conclude the interview;
if he had, the defendant would have been allowed to leave. Lt.
Raney testified the defendant was not in his custody.
Lt. Raney administered the polygraph
examination at approximately 1:00 a.m. and it lasted thirty
minutes. Lt. Raney explained the examination process and placed
attachments on the defendant. The defendant made no complaints and
cooperated. Lt. Taney read the charts and found there had been
numerous deceptions in the polygraph examination and the defendant
had failed the examination on the relevant issue questions but
said nothing to the defendant. The defendant eventually said: “I
failed it, didn't I?” Lt. Raney told the defendant: “Yes, you had
some difficulty on it” and that he was going to have to tell the
police where the body was. Lt. Raney reminded the defendant that
he had told him prior to the examination that when the defendant
finished the examination he would know whether or not the
defendant was telling the truth. Lt. Raney told the defendant the
examination indicated deception when the defendant had been asked
if he knew the complainant was missing before he had been told
about it Friday morning. Lt. Raney told the defendant he needed to
tell where the complainant is because he knows. The defendant
stated: “I think she's still in the attic.” When asked further,
the defendant stated: “They're going to kill me for this, aren't
Lt. Raney asked for further details and the
defendant stated he had taken the complainant to his bedroom and
attempted to have sex with her but could not and he strangled her
and then had sex with her. The defendant asked: “Is there anything
here, anything you can give me, that I can take my life with?” and
Lt. Raney said no. Lt. Raney made no threats or promises to the
defendant during their encounter.
After waiving his rights, appellant executed a
second consent to search his residence. He accompanied officers to
his home, the victim's body was recovered, and appellant was
At 2:30 a.m., Special Agent Young advised the
defendant of his rights from his Federal Bureau of Investigations
form, State's Exhibit 3, which reads as follows: Before we ask you
any questions, you must understand your rights. You have the right
to remain silent. Anything you say can be used against you in
court. You have the right to talk to a lawyer for advice before we
ask you any questions and to have a lawyer with you during
questioning. If you cannot afford a lawyer, one will be appointed
for you before any questioning if you wish. If you decide to
answer questions now without a lawyer present, you will still have
the right to stop answering at any time. You also have the right
to stop answering at any time until you talk to a lawyer.
The defendant said he understood his rights.
The defendant did not ask Special Agent Young to explain anything
nor did he ask for an attorney. The defendant appeared cooperative
and willing to talk. The defendant freely and voluntarily signed
the following waiver of rights: I have read this statement of my
rights and I understand what my rights are. I am willing to make a
statement and answer questions. I do not want a lawyer at this
time. I understand and know what I am doing. No promises or
threats have been made to me and no pressure or coercion of any
kind has been used against me.
The defendant did not ask any questions nor ask
to terminate the interview. Detective Johnson asked the defendant
if he were willing to give a written statement and the defendant
agreed. State's Exhibit 4 is captioned: “Statement of Person in
Custody of Eric Charles Nenno” and is dated March 26, 1995, at
2:50 a.m., and recites: PRIOR TO MAKING THIS STATEMENT I HAVE BEEN
WARNED BY DETECTIVE JOHNSON, THE PERSON TO WOM THIS STATEMENT IS
MADE THAT: 1) I HAVE THE RIGHT TO REMAIN SILENT AND NOT MAKE ANY
STATEMENT AT ALL AND ANY STATEMENT I MAKE MAY AND PROBABLY WILL BE
USED AGAINST ME AT MY TRIAL; 2) ANY STATEMENT I MAKE MAY BE USED
AS EVIDENCE AGAINST ME IN COURT; 3) I HAVE THE RIGHT TO HAVE A
LAWYER PRESENT TO ADVISE ME PRIOR TO AND DURING ANY QUESTIONING;
4) IF I AM UNABLE TO EMPLOY A LAWYER I HAVE THE RIGHT TO HAVE A
LAWYER APPOINTED TO ADVISE ME PRIOR TO AND DURING ANY QUESTIONING;
AND 5) I HAVE THE RIGHT TO TERMINATE THIS INTERVIEW AT ANY TIME.
PRIOR TO AND DURING THE MAKING OF THIS STATEMENT I KNOWINGLY,
INTELLIGENTLY, AND VOLUNTARILY WAIVE THE RIGHTS SET OUT ABOVE AND
MAKE THE FOLLOWING VOLUNTARY STATEMENT.
The defendant initialed each of the above
written warnings, the above written waiver, and each of the
paragraphs of his statement.
Detective Johnson asked the defendant questions,
he answered, and Detective Johnson typed what the defendant said
into a laptop computer. Detective Johnson, Special Agent Young,
and the defendant were present in the interview room. The
defendant never asked to terminate the interview. The defendant
never asked for an attorney. Neither Detective Johnson nor Special
Agent Young promised or threatened the defendant. The defendant
never appeared hesitant about giving the statement. The defendant
indicated he wanted to give an accurate and truthful statement.
The defendant appeared to give a logical and chronological
narration of the events. The defendant did not hesitate to sign
the statement. The defendant freely and voluntarily waived his
rights and signed the Statement at 4:45 a.m.
b. Article 38.22
Appellant contends that Detective Taber's
testimony regarding oral statements made by appellant are
inadmissible under Article 38.22 because appellant was in custody
and because the exception in Article 38.22 § (3)(c) does not apply.
§ 3(c) provides circumstances in which an oral statement may be
admissible if the admissibility requirements in § 3(a) are not
met. Appellant does not, however, explain which requirement
contained in § 3(a)(1)-(5) was not complied with. The trial court
makes no reference to any electronic recording of appellant's
statements even though that is a requirement under § 3(a)(1).
Assuming without deciding that no electronic recording was made,
we find that appellant's claim must nevertheless fail.FN6
FN6. Due to our disposition of this point of
error, we need not attempt to determine whether an electronic
recording was actually made. Nor do we need to determine whether
appellant has inadequately briefed his claim by failing to allege
and provide record support for the State's failure to satisfy one
of the requirements outlined in § 3(a)(1)-(5).
Appellant concedes, as he must, that Article
38.22 applies only to persons in custody. See Article 38.22 § 5.
“A person is in ‘custody’ only if, under the circumstances, a
reasonable person would believe that his freedom of movement was
restrained to the degree associated with a formal arrest.”
Dowthitt v. State, 931 S.W.2d 244, 254 (Tex.Crim.App.1996)(citing
Stansbury v. California, 511 U.S. 318, 114 S.Ct. 1526, 128 L.Ed.2d
293 (1994)). “The reasonable person standard presupposes an
innocent person.” Id. (citing Florida v. Bostick, 501 U.S. 429,
111 S.Ct. 2382, 115 L.Ed.2d 389 (1991))(emphasis in original).
The trial court's findings show that appellant
was not in custody. Appellant was never told, before or during his
interviews with Detective Taber, that he was in custody; in fact,
he was told at the beginning of the command post interview that he
was not in custody. Any finding of custody would have to be
inferred from the combination of circumstances present. We
inferred custody in Dowthitt when the circumstances consisted of:
(1) a very long time period during which interrogation occurred,
(2) the exercise of police control over the defendant, and (3) the
manifestation of probable cause after the defendant admitted to
being present at the scene of the crime. 931 S.W.2d at 257.
None of the factors present in Dowthitt are
present in the case at bar. The time period of interrogation was
short: appellant had been subject to questioning at the command
post for only an hour after he was told he was not under arrest.
No element of coercion or control appears in the record. When
officers arrived at appellant's door, they were simply following
one of many leads in the investigation. They did not indicate that
appellant had to come to the command post, but merely asked him to
go. The officers left for the command post without appellant, who
followed on his own about ten minutes later. Unlike in Dowthitt,
in the present case, there is no evidence that officers attempted
to restrict appellant's movements at the command post or that they
ignored any requests made by him. Finally, although appellant made
a number of suspicious statements during the command post
interview, he denied having any connection to or involvement in
the offense. A reasonable person in appellant's position would not
have believed he was restrained to the degree associated with a
formal arrest. Hence, appellant was not in custody when he made
oral statements to Detective Taber.
Appellant next contends that his oral
statements to Detective Taber and his written statement were
involuntary. To determine whether the circumstances render an
accused's statement involuntary, we ultimately must determine
whether his will was “overborne” by police coercion. Armstrong v.
State, 718 S.W.2d 686, 693 (Tex.Crim.App.1985). Relevant
circumstances with regard to this question include the “length of
detention, incommunicado or prolonged detention, denying a family
access to a defendant, refusing a defendant's request to telephone
a lawyer or family, and physical brutality.” Id.
The present case includes none of the factors
listed in Armstrong. In fact, aside from the two complained-of
comments from the polygraph operator (addressed below) the record
contains no evidence of coercion, even of a subtle nature.
Appellant suggests that some evidence of police coercion was shown
because one of the law enforcement officers briefly showed a
firearm and because the authorities apprised appellant that they
wanted him to answer questions about the disappearance and likely
death of an seven-year-old girl. We find that suggestion
completely untenable. Further, appellant contends that the record
is silent about whether he was ever apprised of the seriousness of
the crime. But the record clearly shows that appellant was aware
he could receive the death penalty for his crime.
Appellant also contends that the polygraph
examiner made two comments that, alone or in combination with
other factors, rendered his written statement involuntary. These
comments occurred after his oral statements to Detective Taber;
therefore, the comments could not have contributed to the
involuntariness of those statements. Because there is no evidence
in the record that even remotely suggests that the oral statements
were involuntary, we dispense with that aspect of appellant's
arguments and focus on his written statement.
Appellant contends that, before the polygraph
examination, Lt. Raney told him that the results could be used
“for his benefit as well as for the benefit of the [police].”
Appellant claims that this warning is prohibited under Dunn v.
State, 721 S.W.2d 325 (Tex.Crim.App.1986) and rendered his written
confession inadmissible as involuntary. But Dunn 's holding
regarding the use of “for or against” language is a construction
of Article 38.22 rather than a constitutional rule of
involuntariness. Creager v. State, 952 S.W.2d 852, 855 (Tex.Crim.App.1997).
A statement is inadmissible if the statutorily
required warning that “any statement he makes may be used against
him” is altered into a warning that says that the statement may be
used “for or against” him. But, when the correct statutory warning
is given, and a “for or against” type comment is made at a
different time during the course of interrogation, no statutory
violation is present. Id. Such a remark may be a circumstance
bearing upon the voluntariness of a defendant's statement, but
does not necessarily render the statement inadmissible. Id. In the
present case, the proper warning was given a number of times, both
before and after the complained-of comment by the polygraph
operator. The correct warning is set out in the written warnings
contained in appellant's written statement. While the polygraph
operator's comment is a factor to take into account in a
voluntariness analysis, it does not in itself require an
Appellant also contends that the polygraph
operator coerced his confession by commanding him to tell the
police what happened. We do not, however, interpret the polygraph
operator's comment that appellant would “have to tell” the police
what happened as meaning that he was legally obligated to do so.
Instead, the polygraph operator's statement conveys that appellant
was morally obligated to give the information. Such moral urging
does not in itself render an accused's statement involuntary but
is another circumstance to consider.
Even considering these two comments together
and in connection with all other circumstances, we are not
convinced that appellant's will was overborne. Appellant had
already agreed to take the polygraph examination before the
examiner commented that the statements could be made for the
mutual benefit of appellant and the sheriff's department. Moreover,
the ostensible purpose of the polygraph test was to determine
appellant's truthfulness about his lack of involvement in the
crime. In fact, the stated object of any polygraph examination is
not to obtain statements to be used but to determine whether, in
fact, the person tested is an appropriate target of investigation.
Hence, the polygraph operator's statement that the examination may
be for appellant's benefit appears appropriate for that context.
In any event, appellant voiced his awareness before the polygraph
examination that he would likely fail the test but hoped he would
pass. Appellant knowingly and voluntarily assumed the risk that he
would fail the test.
Even if we assumed that a danger might exist
that the polygraph operator's “for or against” warning would
improperly elicit incriminating statements during the examination
that are later used in court, nothing in the record suggests that
appellant made any statements during the polygraph examination
that he had not already made during interviews. Only after the
examination, while the polygraph examiner remained silent, did
appellant blurt out that he had “failed” the test. That admission
was not in response to interrogation and appellant must have
realized that it would not be used to benefit him. Furthermore, it
was made after the conclusion of the test, which was the only
subject of the “for or against” warning.
As for the comment that appellant would “have”
to tell the police the location of the body, Lt. Raney did not
promise or threaten appellant in any way when he made the
statement. Appellant was simply confronted with the fact that the
authorities knew he was guilty. Lt. Raney may have inflated the
significance of the polygraph results by telling appellant that he
would know whether appellant was guilty after the test. But
inflated evidence of guilt is the tactic least likely to render a
confession involuntary. Green v. State, 934 S.W.2d 92, 100 (Tex.Crim.App.1996),
cert. denied, 520 U.S. 1200, 117 S.Ct. 1561, 137 L.Ed.2d 707
The use of such a tactic, which capitalizes on
an accused's “moral sense of right and wrong, and his judgment
regarding the likelihood that the police have garnered enough
valid evidence linking him to the crime,” does not cause the
accused's will to be overborne because it does not distort “an
otherwise rational choice of whether to confess or remain silent.”
Id. Lt. Raney simply used the discovery of appellant's guilt as
leverage to urge the appellant to reveal the location of the body.
Such a tactic does not deprive an accused of the ability to make a
free and rational choice on whether to remain silent. We conclude
that the circumstances present in this case do not show that
appellant's written statement was involuntary. Points of error
seventeen through nineteen are overruled.
2. Closing argument
In points of error seven through nine,
appellant complains that, during closing argument, the prosecutor
referred to facts outside the record. Appellant complains about
three different arguments. First, the prosecutor argued that
people do not die quickly from strangulation:
[The medical examiner] also stated that there
was significant trauma in [the decedent's] genital area which
occurred after she was dead. That means that Eric Nenno strangled
her and did what he did for as long as it took. I would submit to
you that you don't die quickly from your oxygen being cut off. (Emphasis
and bracket material as added by appellant). Moments later, the
prosecutor argued that appellant killed his victim in order to
prevent his sexual assault from being discovered:
How could [appellant] lure [decedent] into the
house, have sexual intercourse with her to such an extent that she
was literally apart, and then just let her go? That makes no sense
at all. Use your common sense. He had to know that once he got her
in that [sic] there was nothing he could do but kill her because
that was his only hope of getting away with it. (Emphasis and
bracket material as added by appellant). Finally, the prosecutor
argued that appellant must have contemplated killing the victim
before committing sexual assault:
[Appellant] knew that if he ever lived out his
fantasies, if he ever went through the steps and took the chance
to do what he wanted to do, that he was going to have to kill the
victim. (Emphasis and bracket material as added by appellant).
Appellant objected to all three arguments. The trial court
sustained his objection to the first argument but overruled his
objections to the others.
We conclude that none of the above arguments
were improper references to matters outside the record. First, all
of these arguments were simply statements of common knowledge.
Common knowledge is an exception to the prohibition against
arguing facts outside the record. Sawyers v. State, 724 S.W.2d 24,
37 (Tex.Cr.App.1986); Carter v. State, 614 S.W.2d 821, 823 (Tex.Cr.App.1981).
Second, evidence existed in the record to substantiate the
prosecutor's arguments. Appellant's written confession contained a
detailed account of appellant's actions in choking the victim:
I remember her kicking and trying to fight
back. I grabbed her up and put my left arm around her neck from
behind. I started choking her to keep her quiet. She continued to
struggle so I took her into the bathroom in my bedroom with her
standing on her feet but with me dragging her. After we got into
the bathroom, she stopped screaming but was still struggling. Then
she stopped struggling in the bathroom. I think that she was dead.
The jury could have inferred from that account
that the victim's death was not immediate. Appellant also
discussed with Detective Taber the possible fate of the victim and
the killer's motivation for murder: Q. Detective Taber, you asked
the defendant what he thought had happened to [the victim]? A. Yes,
I did. Q. What was the response? A. He said he felt that she was
kidnapped, raped, and murdered. Q. Did he make any statements
about why a person would murder her? A Yes. Q. What did he say? A
So no one would find out who did it. (Bracketed material inserted).
Points of error seven through nine are overruled.
1. Expert testimony
In point of error one, appellant contends that
the trial court erred in admitting expert testimony from Kenneth
Lanning during the punishment stage of the trial. As explained in
connection with point of error two, Lanning testified with regard
to appellant's future dangerousness. Appellant contends that
Lanning's testimony was inadmissible under Tex.R.Crim. Evid. 702
FN7 because it failed to meet the three-pronged test announced in
Kelly v. State, 824 S.W.2d 568 (Tex.Crim.App.1992). He also
contends that the testimony was inadmissible under Tex.R.Crim.
Evid. 403 FN8 because it merely duplicated the jury's knowledge
and carried the prospect of unduly influencing the jury with an
FN7. Rule 702 provides: If scientific,
technical, or other specialized knowledge will assist the trier of
fact to understand the evidence or to determine a fact in issue, a
witness qualified as an expert by knowledge, skill, experience,
training or education, may testify thereto in the form of an
opinion or otherwise.
FN8. Rule 403 provides: Although relevant,
evidence may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the
issues, or misleading the jury, or by considerations of undue
delay, or needless presentation of cumulative evidence.
Appellant contends that the State failed to
show the validity of the scientific theories underlying Lanning's
testimony or the validity of the method used for applying the
theories. Appellant argues that this validity is lacking because
the State failed to produce any evidence (1) that the theories
underlying Lanning's testimony are accepted as valid by the
relevant scientific community, (2) that the alleged literature on
the theories supports his theories, (3) that there are specific
data or published articles regarding the area of future
dangerousness of prison inmates, (4) that his theories have been
empirically tested, (5) that he has conducted any studies or
independent research in the area of future dangerousness, or (6)
that anyone else had tested or evaluated the theories upon which
his testimony was based.
In Kelly, we held that Rule 702 required the
satisfaction of a three-part reliability test before novel
scientific evidence would be admissible: (1) the underlying
scientific theory must be valid; (2) the technique applying the
theory must be valid; and (3) the technique must have been
properly applied on the occasion in question. 824 S.W.2d at 573.
Factors relating to this determination of reliability include but
are not limited to: (1) acceptance by the relevant scientific
community, (2) qualifications of the expert, (3) literature
concerning the technique, (4) the potential rate of error of the
technique, (5) the availability of other experts to test and
evaluate the technique, (6) the clarity with which the underlying
theory or technique can be explained to the court, and (7) the
experience and skill of the person applying the technique. Id.
We subsequently held that this inquiry is
substantively identical to the inquiry mandated by the Supreme
Court in the federal system in Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d
469 (1993) concerning the admissibility of scientific evidence
under Rule 702. Jordan v. State, 928 S.W.2d 550, 554 (Tex.Crim.App.1996).
In Daubert, the Supreme Court held that Federal Rule 702 required
that scientific evidence be “not only relevant, but reliable.” 113
S.Ct. at 2795, 125 L.Ed.2d at 481. In determining the reliability
of the testimony, the Supreme Court held that a number of factors
bear on the inquiry, including: (1) whether the theory or
technique can be or has been tested, (2) whether the theory or
technique has been subjected to peer review or publication, (3)
the known or potential rate of error, and (4) general acceptance
within the relevant scientific community. Id. at 2796-97, 125 L.Ed.2d
at 483. The Court emphasized that the inquiry is “a flexible one.”
Although Kelly involved novel scientific
evidence, we later concluded that the standard established in that
case applied to all scientific evidence, whether or not it was
novel. Hartman v. State, 946 S.W.2d 60, 62-63 (Tex.Crim.App.1997).
The question we confront today is whether Kelly is applicable to
nonscientific expert testimony (i.e. that involving technical or
other specialized knowledge). The answer to that question is a
qualified “yes.” The general principles announced in Kelly (and
Daubert ) apply, but the specific factors outlined in those cases
may or may not apply depending upon the context. We do not attempt,
here, to develop a rigid distinction between “hard” science,
“soft” sciences, or nonscientific testimony. The present case
illustrates that the distinction between various types of
testimony may often be blurred. The observations we make today
apply to all types of expert testimony.
Courts must keep in mind the statement in
Daubert that the inquiry is “a flexible one.” The general approach
of the Federal Rules-and by inference, the state rules that were
patterned upon them-was to “relax[ ] the traditional barriers to
opinion testimony.” 113 S.Ct. at 2794-95, 125 L.Ed.2d at 480. The
Supreme Court, while setting out four factors relevant to
scientific reliability, cautioned that “we do not presume to set
out a definitive checklist or test.” Id. at 2796, 125 L.Ed.2d at
482. The factors listed were based upon “general observations”
about the nature of scientific evidence. Id. And, the standard of
evidentiary reliability set forth was derived from Rule 702's
requirement that the expert's testimony pertain to “ scientific
knowledge” (emphasis added). Id. at 2795, 125 L.Ed.2d at 481.
While various federal circuits may sometimes purport to disagree
with each other, a close examination of the cases shows a general
agreement about two important propositions: (1) Daubert 's
prescription that trial judges act as “gatekeepers” in determining
the reliability of expert evidence applies to all forms of expert
testimony, and (2) the four factors listed in Daubert do not
necessarily apply outside of the hard science context; instead
methods of proving reliability will vary, depending upon the field
of expertise. Moore v. Ashland Chemical, Inc., 126 F.3d 679,
685-689 (5th Cir.1997), rehearing en banc granted (general
principles of Rule 702 recognized in Daubert apply to other
species of expert testimony except where self-evident that the
Court's remarks apply only to scientific knowledge; reliability of
testimony should be evaluated by reference to the standards
applicable to the particular field in question; four Daubert
“factors” apply to hard science but not to clinical medicine);
United States v. Jones, 107 F.3d 1147, 1156 & 1158 (6th Cir.),
cert. denied, 521 U.S. 1127, 117 S.Ct. 2527, 138 L.Ed.2d 1027
(1997)( “gatekeeper” and reliability language applicable; but four
factors discussed regarding scientific validity should not be
extended beyond the scientific realm); Tyus v. Urban Search
Management, 102 F.3d 256, 263 (7th Cir.1996), cert. denied, 520
U.S. 1251, 117 S.Ct. 2409, 138 L.Ed.2d 175 (1997) ( Daubert
framework applies to social sciences, but “the measure of
intellectual rigor will vary by the field of expertise and the way
of demonstrating expertise will also vary”). See also, Freeman v.
Case Corp., 118 F.3d 1011, 1016 n. 6 (4th Cir.1997), cert. denied,
522 U.S. 1069, 118 S.Ct. 739, 139 L.Ed.2d 676 (1998)(“where an
expert relies on his experience and training and not a particular
methodology to reach his conclusions” Daubert “analysis” is
inappropriate); United States v. Bighead, 128 F.3d 1329, 1330 (9th
Cir.1997)(Daubert's tests for admissibility “do not require
exclusion of expert testimony that involves specialized knowledge
rather than scientific theory”); Compton v. Subaru of America, 82
F.3d 1513, 1518 (10th Cir.1996), cert. denied, .519 U.S. 1042, 117
S.Ct. 611, 136 L.Ed.2d 536 (1996)(four factors “applicable only
when a proffered expert relies on some principle or methodology”
rather than experience or training).
When addressing fields of study aside from the
hard sciences, such as the social sciences or fields that are
based primarily upon experience and training as opposed to the
scientific method, Kelly 's requirement of reliability applies but
with less rigor than to the hard sciences. To speak of the
validity of a “theory” or “technique” in these fields may be
roughly accurate but somewhat misleading. The appropriate
questions are: (1) whether the field of expertise is a legitimate
one, (2) whether the subject matter of the expert's testimony is
within the scope of that field, and (3) whether the expert's
testimony properly relies upon and/or utilizes the principles
involved in the field. These questions are merely an appropriately
tailored translation of the Kelly test to areas outside of hard
science. And, hard science methods of validation, such as
assessing the potential rate of error or subjecting a theory to
peer review, may often be inappropriate for testing the
reliability of fields of expertise outside the hard sciences.FN9
FN9. We do not categorically rule out employing
such factors in an appropriate case.
We turn then, to apply this test to Lanning's
testimony. Lanning testified that his analysis was based upon his
experience studying cases. FN10 He did not contend that he had a
particular methodology for determining future dangerousness.
Research concerning the behavior of offenders who sexually
victimize children appears to be a legitimate field of expertise.
Through interviews, case studies, and statistical research, a
person may acquire, as a result of such experience, superior
knowledge concerning the behavior of such offenders. Moreover,
Lanning's testimony shows that future dangerousness is a subject
that often surfaces during the course of research in this field.
And, Lanning testified that he studied in excess of a thousand
cases that concerned the issue of future dangerousness in some
fashion. His research involved studying solved cases to attempt to
understand the dynamics of what occurred.
This research included personal interviews with
inmates convicted of child sex offenses, examining the inmates'
psychological records, and examining the facts of the offenses
involved. Appellant complains about the lack of peer review. But
the absence of peer review does not necessarily undercut the
reliability of the testimony presented here. To the extent that a
factfinder could decide that the absence of peer review cast doubt
on the credibility of the testimony, such affects the weight of
the evidence rather than its admissibility. We find the
reliability of Lanning's testimony to be sufficiently established
under Rule 702.
FN10. Lanning had been studying the sexual
victimization of children for fifteen years full-time and eight
years part-time prior to that. He had been with the FBI for over
twenty-five years, and had been assigned to the Behavioral Science
Unit of the FBI Academy in Quantico, Virginia for fifteen years.
As for appellant's Rule 403 claim, the above
discussion shows that Lanning's testimony did not merely duplicate
the jury's knowledge because Lanning possessed superior knowledge
concerning the behavior of offenders who sexually victimized
children. We find that the trial court did not err in determining
that the probative value of Lanning's testimony was not
substantially outweighed by the danger of unfair prejudice. Point
of error one is overruled.
In point of error four, appellant contends that
the trial court erred in refusing to grant a mistrial after the
prosecutor asked questions based upon an allegedly inadmissible
document. In cross-examining Dr. Robert Geffner, one of
appellant's expert witnesses, the prosecutor attempted to
introduce into evidence a document made by a colleague of Dr.
Geffner. The document was an interview with appellant and was one
of the materials relied upon by Dr. Geffner in formulating his
expert opinion. Appellant objected that the document was hearsay,
and the trial court sustained the objection. Later, the prosecutor
questioned Dr. Geffner concerning the contents of the document:
PROSECUTOR: Doctor, State's Exhibit No. 99,
would you tell the jury generally what State's 99 is? WITNESS:
It's basically him talking about what he remembered from the night
of the crime, what he told other people in general. PROSECUTOR:
What did Eric Nenno tell your associate about what he remembered
about the night? Defense counsel objected, and the trial court
sustained the objection. No further relief was requested. Later
the prosecutor conducted more questioning concerning the
colleague's report: PROSECUTOR: Also on direct examination you
said that you considered it extremely important from your
standpoint that he began by telling you or began the confession by
saying that it was in a dream-like state? WITNESS: Not to me but
to the police officer. PROSECUTOR: But you attached some
significance to those particular words, the way that he used those
words, that he was in a dream-like state when this occurred?
WITNESS: I believe I said that people with frontal lobe problems
do sometimes use that terminology when they've passed the
threshold. I think it was something along those lines. PROSECUTOR:
But you find it significant then that he used that type of wording
in making your assessment of the evidence that you're here to
testify about today? WITNESS: That's one piece of it. There is a
lot of data. That's one piece of it, yes. PROSECUTOR: In the
interview that was done by your associate, Mr. Nenno basically
gives a different view of what happened than he does in the
confession, doesn't he? Defense counsel then objected, but his
objection was overruled. The prosecutor continued: PROSECUTOR: You
can answer. WITNESS: I believe it was the same idea. PROSECUTOR:
Didn't you tell us that as part of your evaluation that he said
that he didn't remember anything about this offense after it
happened? WITNESS: In the interview, yes. Pretty much so.
PROSECUTOR: That he didn't even remember where the body was
Defense counsel objected, the trial court
sustained the objection, and, upon appellant's request, instructed
the jury to disregard the contents of the document. Appellant's
mistrial motion was denied.
Appellant contends that the prosecutor's
questions were improper and so prejudicial as to require a
mistrial. We first note that appellant requested a mistrial only
as to the last question detailed above; he has failed to preserve
error with respect to the earlier questions. Cockrell v. State,
933 S.W.2d 73, 89 (Tex.Crim.App.1996)(plurality opinion), cert.
denied, 520 U.S. 1173, 117 S.Ct. 1442, 137 L.Ed.2d 548 (1997); Id.
at 96-97 (Maloney, J. concurring). As for the last question, he
obtained an instruction to disregard. Generally, when a witness
has not had the opportunity to answer an improper question, an
instruction to disregard will cure any harm to the defendant.
Burks v. State, 876 S.W.2d 877, 902 (Tex.Crim.App.1994), cert.
denied, 513 U.S. 1114, 115 S.Ct. 909, 130 L.Ed.2d 791 (1995);
Cooks v. State, 844 S.W.2d 697, 735 (Tex.Crim.App.1992), cert.
denied, 509 U.S. 927, 113 S.Ct. 3048, 125 L.Ed.2d 732 (1993);
Ransom v. State, 789 S.W.2d 572, 585 (Tex.Crim.App.1989), cert.
denied, 497 U.S. 1010, 110 S.Ct. 3255, 111 L.Ed.2d 765 (1990);
Turner v. State, 600 S.W.2d 927, 932 (Tex.Crim.App.1980). The only
exception is when the question is so inflammatory that an
instruction to disregard could not withdraw the impression from
the jurors minds. See above citations. The last question did
convey appellant's alleged lack of memory, a fact apparently
contained in the inadmissible document. However, essentially the
same information was elicited in the immediately preceding
question, to which there was no objection. Error is defaulted when
the same evidence is presented elsewhere without objection.
McFarland v. State, 845 S.W.2d 824, 840 (Tex.Crim.App.1992), cert.
denied, 508 U.S. 963, 113 S.Ct. 2937, 124 L.Ed.2d 686 (1993);
Narvaiz v. State, 840 S.W.2d 415, 430 (Tex.Crim.App.1992), cert.
denied, 507 U.S. 975, 113 S.Ct. 1422, 122 L.Ed.2d 791 (1993).
However, even if error had been preserved, we
find that the prosecutor's question was proper. Appellant's claim
is that the evidence was hearsay. Evidence is hearsay only when it
is offered “to prove the truth of the matter asserted.” Tex.R.Crim.
Evid. 801(d). The question about appellant's statement was not
designed to show the truth of the statement contained in the
document but to impeach Dr. Geffner by attacking the basis for his
opinion. The State wanted to undermine Dr. Geffner's opinion by
showing that he relied upon specific statements made by appellant
to formulate that opinion despite other information (upon which he
also claims to have relied) that showed appellant telling a
Moreover, evidence constituting part of the
underlying basis for an expert opinion is admissible upon cross-examination
under Rule 705, which states that an “expert may ... be required
to disclose on cross-examination, the underlying facts or data”
made the basis of his opinion. Tex.R.Crim. Evid. 705(a); Ramirez
v. State, 815 S.W.2d 636 (Tex.Crim.App.1991). In a very similar
situation, a court of appeals has held that the State could
impeach a defense expert with out-of-court statements contained in
another doctor's report where the defense expert had relied upon a
summary of the report in formulating his opinions. Moranza v.
State, 913 S.W.2d 718, 727-728 (Tex.App.-Waco 1995, pet. ref'd).
In the present case, Dr. Geffner claimed to have relied upon the
complained of interview. The State was entitled to impeach Geffner
with the contents of that interview. Point of error four is
3. Extraneous offense
In point of error six, appellant contends that
the trial court erred in admitting a nine-year-old girl's
testimony concerning an incident that occurred between her and
appellant. The girl testified that she was walking her bicycle in
her neighborhood because its chain was broken. Appellant grabbed
the bicycle, carried it into the driveway, and fixed the chain.
Then he patted the girl on her “butt.” The girl testified that
appellant's conduct made her feel mad and sad and that she cried.
She later told her mother, who called the police. Appellant
contends that this conduct did not constitute an offense and was
offered only to inflame the minds of the jury. He claims that the
evidence is irrelevant, and that it is unfairly prejudicial under
Evidence regarding a defendant's character is
generally relevant at the punishment stage of a capital murder
trial. Jones v. State, 944 S.W.2d 642, 652 (Tex.Crim.App.1996),
cert. denied, 522 U.S. 832, 118 S.Ct. 100, 139 L.Ed.2d 54 (1997).
Uncharged misconduct, whether criminal or not, is admissible at
this stage. Wilkerson v. State, 881 S.W.2d 321, 326 (Tex.Crim.App.),
cert. denied, 513 U.S. 1060, 115 S.Ct. 671, 130 L.Ed.2d 604
(1994). The jury could have found the incident to be misconduct on
appellant's part, albeit of a relatively mild sort. The fact that
an innocent explanation for such conduct may exist affects the
weight of the evidence rather than its admissibility.
As for appellant's Rule 403 objection, the
“inflammatory” nature of the evidence is that it tended to show
that appellant was a child molester. Showing appellant to be a
child molester was a perfectly legitimate purpose, and hence,
while the evidence was “prejudicial”, it was not unfairly so.FN11
Point of error four is overruled. FN11. Appellant also contends
that the child testified to not remembering the incident and
relaying only what the district attorneys told her. He bases this
contention upon defense questions “You don't remember much about
this at all, do you?” and “In fact, you don't know much except
what the District Attorneys have told you?” to which the witness
answered “no.” The latter question is ambiguous: a “no” answer
could be interpreted as either agreement or disagreement with the
question. And the former question does not necessarily indicate
that the girl did not remember the facts to which she testified.
Moreover, on redirect, the girl testified that she previously told
prosecutors the same story that she testified to at trial. And she
testified that the prosecutors did not tell her what to say but
simply asked what happened.
In points of error eleven through sixteen,
appellant contends that the trial court erred in admitting into
evidence sexually explicit magazines found in a locked file
cabinet. In the same file cabinet, law enforcement officials also
found the victim's black and white polka dot dress and white
panties. Appellant contends that the magazines were irrelevant
because they were simply items he possessed in exercising his
First Amendment rights.FN12 He also contends that the magazines
were unfairly prejudicial under Rule 403.
FN12. Appellant apparently does not make an
independent First Amendment argument but simply alleges that such
materials are logically irrelevant to his future dangerousness.
Assuming arguendo that the viewing of such materials were
constitutionally protected, that fact does not necessarily exclude
their relevance to show appellant's future dangerousness. And,
even if we interpreted appellant as making an independent First
Amendment claim, he failed to preserve error on that issue by
making no objection on First Amendment grounds at trial. Pondexter
v. State, 942 S.W.2d 577, 585 (Tex.Crim.App.1996), cert. denied,
522 U.S. 825, 118 S.Ct. 85, 139 L.Ed.2d 42 (1997)
Because the sexually explicit magazines were
found within the same locked file cabinet as the victim's clothes,
the jury could have concluded that the magazines played a role in
motivating appellant to commit the sexual assault. And the jury
could have believed that appellant's possession of the magazines
in close proximity to the victim's effects was a sign that
appellant was sexually obsessed and that this sexual obsession was
of the sort likely to lead to further violence. As such, the
magazines are relevant and their probative value is not
substantially outweighed by the danger of unfair prejudice. FN13
FN13. We denied a motion to supplement the
record with the magazines. Appellant correctly alleges in his
brief that we can on our own motion order the forwarding of such
materials. The State contends that the magazines contain numerous
photographs of nude females, most of whom are clean shaven in the
pubic area and some of whom purport to be young girls. The State
further contends that the females are often depicted engaging in
sexual acts similar to those appellant described as having
fantasized. If the magazines are as the State describes, then
their content would make them relevant to show his sexual
obsession with children regardless of where the magazines were
discovered. However, because a close locational connection between
the magazines and the victim's clothes was established, we need
not review the magazines' contents to determine their
admissibility. We need only assume that the magazines depict
nudity or sex in some fashion-which appellant must concede to make
a claim of prejudice in the first place.
In point of error five, appellant contends that
the trial court erred in denying his motion for mistrial when the
prosecutor made the following argument during the punishment stage
of the trial:
He came to the conclusion basically that he had
blanked out and was not aware of anything that had happened. If
that was the real issue, why didn't we hear that on the guilt-innocence
stage? If he didn't know right from wrong, that's a defense.
Appellant objected, the trial court sustained
the objection, and the trial court instructed the jury to
disregard the prosecutor's comment. Appellant contends that this
argument distorted the burden of proof in the State's favor and
that the error was not harmless. We have found an instruction to
disregard to cure prosecutorial comments more inflammatory than
the one that occurred here. Shannon v. State, 942 S.W.2d 591, 597
(Tex.Crim.App.1996)(comment outside the record that the defendant
was a sociopath); Hammond v. State, 799 S.W.2d 741, 748-749 (Tex.Crim.App.1990),
cert. denied, 501 U.S. 1259, 111 S.Ct. 2912, 115 L.Ed.2d 1076
(1991)(comment that compared the case on trial with other capital
murder cases); Brown v. State, 769 S.W.2d 565, 567 (Tex.Crim.App.1989)(reference
to parole); Bower v. State, 769 S.W.2d 887, 906-907 (Tex.Crim.App.1989),
cert. denied, 506 U.S. 835, 113 S.Ct. 107, 121 L.Ed.2d 66 (1992)(comment
about lack of remorse that was held to be a comment on failure to
testify). The trial court's instruction cured any error. Point of
error five is overruled.
The judgment of the trial court is affirmed.
BAIRD, J., joins with note. OVERSTREET, J.,
concurs in the result. PRICE, J., concurs in points of error 17
through 19, and otherwise joins the opinion of the Court.
BAIRD, Judge, joins the judgment of the Court
but dissents to the decision to publish. The decision to publish
an opinion of the Court should rest on whether the opinion would
contribute to the jurisprudence of this State. Because the instant
opinion does not make such a contribution, I dissent to the
publication thereof. See, Quinn v. State, 958 S.W.2d 395, 403 (Tex.Cr.App.1997);
Kirby v. State, 883 S.W.2d 669, 672 (Tex.Cr.App.1994); and, Pawson
v. State, 865 S.W.2d 36 (Tex.Cr.App.1993). Overstreet, J., concurs
in the result. Price, J., concurs in points of error 17 through
19, and otherwise joins the opinion of the Court.