Preyor – black, age 33
Sentenced to death in Bexar
By: A jury
Date of crime: 2/26/2004
Preyor slashed 24-year-old
Jami Tackett’s throat and stabbed her multiple times when he broke
into her apartment during an attempted robbery. She also suffered
multiple defensive wounds. Tackett bled to death. Tackett’s
boyfriend, Jason Garza, 20, was also stabbed during the incident,
but he survived.
Preyor told authorities that
he was going to Tackett’s apartment to buy drugs from her. He
claimed that when he entered her apartment, Tackett and another
man began beating him and he drew his knife in self defense and
“poked” her with it. Prosecutors said Preyor was not trying to
defend himself because it was clear the door had been knocked down
before the murder and a gun had also been found on the bumper of
his vehicle. The defense argued it was Garza who broke down the
door as he was leaving the apartment.
Prosecutor(s): Melisa Skinner
Defense Lawyer(s): John Economidy
Sources: San Antonio Express-News
3/15/05, 3/11/05, 3/10/05, 3/8/05, 2/27/04
Court of Criminal Appeals
affirm local man's death sentence
San Antonio, Texas;
January 23, 2008
Bexar County District Attorney Susan D. Reed announced today
that the Texas Court of Criminal Appeals affirmed the Capital
Murder conviction and death sentence of Taichin Preyor, age 37.
The evidence showed that Preyor murdered Jami Tackett in the
course of committing or attempting to commit burglary of a
habitation on February 26, 2004. Preyor, age 33 at the time of
the offense, was friends with Tackett. On the night of the
murder, Tackett and her boyfriend Garza had gone to bed for the
evening. Preyor, who was dressed from head to toe in black
clothing, broke through the front door and entered Tackett's
bedroom. Preyor first attacked Garza and then Tackett. Preyor
tried to leave the scene in his car, but had to return to the
apartment to search for his car keys. Police arrested him as he
was leaving the scene.
In the Court of Criminal Appeals of Texas
Taichin Preyor, Appellant
The State of Texas
On direct appeal
From cause no, 2004-CR-3602 in the 290th District Court
J., delivered the opinion of the Court in which Keller, P.J., and
Womack, Johnson, Keasler, Hervey, Holcomb and Cochran, JJ., joined.
Meyers, J., did not participate.
O P I N I O N
The appellant was convicted in March 2005, of
capital murder. (1) Based on 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),
(2) the trial judge sentenced the appellant to death.
(3) Direct appeal to this Court is automatic.
(4) After reviewing the appellant's six points of error,
we find them to be without merit. Consequently, we affirm the
trial court's judgment and sentence of death.
STATEMENT OF FACTS
The evidence showed that the appellant, also
known as "Box," murdered Jami Tackett in the course of committing
or attempting to commit burglary of a habitation on February 26,
2004. The appellant was friends with Tackett, who sold drugs and
kept cocaine in a safe in her apartment.
The appellant called Tackett earlier in the
evening and said he was coming over to her apartment that night.
Tackett and some friends, including Jason Garza, partied at her
apartment into the early morning hours. The last guest left at
about 4:00 a.m., at which point Tackett and Garza locked the front
door, turned out the lights, and went to bed.
Shortly thereafter, the appellant, who was
dressed from head to toe in black clothing, broke through the
front door and entered Tackett's bedroom. Tackett asked, "Box,
what the hell are you doing here?" The appellant said, "Fuck this,"
then jumped on the bed and began attacking Garza. The appellant
stabbed Garza, who managed to run away and asked neighbors to call
for help, leaving Tackett alone with the appellant. The appellant
then stabbed Tackett numerous times and slashed her throat,
severing her trachea, jugular vein, and carotid artery.
The appellant initially tried to leave the
scene in his car, which was parked downstairs, but he went back
into Tackett's apartment, where he apparently searched for his car
keys while Tackett struggled to breathe on her living-room floor.
He encountered the police when he went back downstairs, and he
failed to comply when they ordered him to stop and get on the
ground. The officers struggled to handcuff the appellant, who was
covered in blood, and used pepper spray to subdue him. Tackett
died before the paramedics arrived. Police discovered a loaded
shotgun on the bumper of the appellant's car and a knife and
gloves in the grass nearby.
The State introduced evidence at the punishment
phase that the appellant had committed a prior drug offense in
Syracuse, New York, in 1999. Syracuse Police Officer Tim Laun
testified that he had noticed the appellant and another man acting
suspiciously at 2:00 a.m. He did a pat-down search of the
appellant and discovered that he had a bag containing nearly four
ounces of crack cocaine. (5)
The appellant fled, and another officer later
tackled and handcuffed him. The appellant pleaded guilty to
possession of a controlled substance in exchange for a one-year
sentence. A charge of resisting arrest was dismissed as part of
his plea bargain. He told his probation officer that he had used
cocaine since adolescence, and that he had started using it
consistently in 1998, when he had an affair with a woman who was a
The appellant also told his probation officer
that the crack cocaine was for his own personal use. However, when
he was interviewed by clinical psychologist Dr. Joanne Murphy
prior to his capital-murder trial, he acknowledged that he had
been selling drugs.
After serving time for his drug offense, the
appellant moved to San Antonio, where he was joined by his wife
and children. About one month before the instant offense, on
January 14, 2004, the police went to the appellant's apartment on
a "family violence call." The appellant was angry that police were
there, and he was pacing, yelling, and screaming. He calmed down
when his brother, a San Antonio police officer, arrived. His wife,
who was "very pregnant" with their fourth child, did not appear to
be injured and stated that she did not need assistance.
The appellant committed the following
disciplinary infractions while in the Bexar County Jail awaiting
trial: (1) possessing ten tablets of Tylenol, instead of the two
tablets permitted; (2) disobeying an order from staff; and, (3)
engaging in "loud, boisterous behavior or communication with other
inmates" by lifting the lid on his cell door. The evidence also
showed that the appellant had the dates of his drug offense and
the instant capital murder tattooed on his body. He told Dr.
Murphy that the tattoos were to remind him of mistakes that he
never wanted to repeat.
GUILT/INNOCENCE POINTS OF ERROR
In his first point of error, the appellant
contends that the trial court erred in overruling
his Batson challenge to the State's
peremptory challenge of prospective juror April Keisha Layne.
(6) A defendant objecting under Batson must
make a prima facie showing of racial discrimination in
the State's exercise of its peremptory strikes.
(7) The burden then shifts to the State to articulate
race-neutral explanations for its strikes.
(8) Once the prosecutor has articulated race-neutral
explanations, the burden shifts back to the defendant to show that
the explanations are really a pretext for discrimination.
(9) The trial court must then determine whether the
defendant has carried his burden of proving discrimination.
(10) The trial court's determination is accorded great
deference and will not be overturned on appeal unless it is
clearly erroneous. (11)
The appellant objected to the State's
peremptory strike against Layne under Batson. Without
making a finding that the appellant had made a prima facie
case, the trial court entertained the State's explanations for the
THE COURT: . . . So, you want to tell me why
you struck Ms. Layne, who happens to be a black woman?
[PROSECUTOR]: Yes. Judge, I'm happy to tell you
but I think first there has to be a pattern. There's certainly no
pattern that we are striking all Blacks off the panel. I have her
rated actually fairly low based on her answers on the
questionnaire. I have a concern still with her stepbrother having
been accused of a felony. She indicates in her questionnaire that
she had gone with him to an attorney to discuss the case with the
attorney, but at this point she's not being real forthcoming on
what the felony actually was. Her questions in this case, also,
when she was responding to the first question.
And I asked her if she thought that the capital
murder itself, whether that could certainly prove the first
special issue to her depending on the facts. She seems to have a
real hangup with that. That caused me concern that she couldn't
envision that sort of case where that first question could be
answered simply by - - you know, by her hearing the evidence in
the first part of the case. So, all of those things together have
made me believe she is an appropriate strike for the State in this
When questioned further by defense counsel, the
prosecutor also explained:
Q. How are her answers different from the other
- - With respect to every question that you feel upset about, how
does her answer differ from the answers of other jurors which you
have found acceptable?
A. Most of the other jurors have not had a
problem with answering the first special issue yes or not
hesitated like she did in answering [the] special issue yes, based
on the facts of the offense.
Q. What were the specific words that caused you
pause when she said yes?
A. I believe she hesitated for a couple of
seconds and said, you're really going to have to show me something.
It's hard to explain exactly the words, but it was clear that she
made quite a pause and seemed to indicate that we were going to
have to bring her something more than the facts itself.
Q. Now, she doesn't say that, does she,
A. I don't remember her exact words, but it was
clear to me that's what she meant.
After questioning the prosecutor, defense
counsel stated, "Your Honor, I do not believe that the State has
given a racially neutral reason and carried the burden of
persuasion on this. I move to go ahead and seat Ms. Layne." The
trial court responded, "Well, I'll take [the prosecutor] at his
word that he didn't factor race into his decision to use a strike
on this woman. So, you may tell her that she can go."
The State's facially race-neutral explanations
for striking Layne are supported by the record. When the
prosecutor questioned Layne about her stepbrother, she stated, "I
think it was like a drug case," and, "I can't tell you like
details." When the prosecutor asked her if "just a capital murder
itself could give [her] the answer" to the future dangerousness
special issue, she replied, "It could, but you would need to
really listen to the case." Although we cannot determine from the
record how long Layne paused before answering that question, we
defer to the trial court's acceptance of the State's explanation.
The appellant did not show that the State's explanation was really
a pretext for discrimination. The trial court did not abuse its
discretion in denying the appellant's Batson challenge.
Point of error one is overruled.
In point of error two, the appellant complains
that the trial court erroneously admitted State's Exhibits 125 and
126, in violation of Rule 403 of the Texas Rules of Evidence. He
argues that these autopsy photographs "were extremely gruesome and
detailed," that they were cumulative, and that their probative
value was substantially outweighed by the danger of unfair
Rule 403 requires that a photograph have some
probative value and that its probative value not be substantially
outweighed by its inflammatory nature. (12)
A court may consider many factors in determining whether the
probative value of photographs is substantially outweighed by the
danger of unfair prejudice. These factors include: the number of
exhibits offered, their gruesomeness, their detail, their size,
whether they are in color or black-and-white, whether they are
close-up, whether the body depicted is clothed or naked, the
availability of other means of proof, and other circumstances
unique to the individual case. (13)
The admissibility of photographs over an objection is within the
sound discretion of the trial judge. (14)
Autopsy photographs are generally admissible unless they depict
mutilation of the victim caused by the autopsy itself.
State's Exhibits 125 and 126 appear in the
record as color photographs that are slightly larger than 5" by 7"
in size. They offer close-up views of open incised wounds to the
victim's neck and near her ear. When the appellant objected to the
admission of these photographs, the prosecutor responded that
State's Exhibit 125 showed "injuries to the ear that are not
apparent on other photos" and that State's Exhibit 126 "assists in
showing the pathway of the injury." The trial court replied:
THE COURT: Well, it seems that you have others
that do the same thing - - 122, 124. I don't see how they are
particularly different. No, this is the ear, 126.
[PROSECUTOR]: Specifically, Judge, if you would
look at where the wounds end near the ear in 125 as opposed to 124
and 122, that's the significance.
THE COURT: Pick one.
[PROSECUTOR]: Between the three, Your Honor,
because 122 also shows chest wounds that are not shown in the
others. Your Honor, then between the three, 125 is the one that we
THE COURT: All right. Well, I'm going to
overrule your objections to 125 and 126 and receive those into
evidence, and 124 and 122 are pretty much the same thing, so those
are not coming in. The rest are admitted.
The trial court did not abuse its discretion in
admitting the photographs. Although the photographs depict the
bloody stab wounds suffered by the victim, they portray no more
than the gruesomeness of the injuries inflicted.
(16) They were not cumulative, despite the fact that
some of the other admitted photographs also showed the injuries to
the victim's neck and near her ear. The wounds in the other
admitted photographs were glued closed so that the medical
examiner could better see their pathway or pattern and could
better determine if the edges of the wounds were "pointed or
blunted." Finally, the danger of unfair prejudice did not
substantially outweigh their probative value. The photographs were
relevant and probative to the jury's understanding of the victim's
injuries. Point of error two is overruled.
PUNISHMENT POINTS OF ERROR
In point of error three, the appellant argues
that the evidence is legally insufficient to support the jury's
affirmative finding on the "future dangerousness" special issue.
We view the evidence in the light most favorable to the jury's
finding and determine whether any rational trier of fact could
have found beyond a reasonable doubt that there is a probability
that the appellant would commit criminal acts of violence that
would constitute a continuing threat to society.
(17) The facts of the offense, alone, can be sufficient
to support an affirmative answer to the special issue.
The appellant argues on appeal that "the
psychological testimony was favorable" and indicated that he would
not be a future danger in prison. However, Dr. Murphy acknowledged
on cross-examination that she did not consider the circumstances
of the instant case and instead relied upon the appellant's school
records and what the appellant and his attorney reported to her.
The appellant argues that the jail records and
the testimony of jail personnel showed that the appellant was "not
a problem inmate." But the evidence showed that the appellant
twice resisted arrest and had an angry reaction when police came
to his home on a family-violence call. Further, Bexar County
Sheriff's Deputy Mike Alvarado testified that, about a week prior
to trial, a prison guard searched the appellant's cell for "non-privileged
mail" and the "Special Response Team" (or "SERT team") was
dispatched to assist in the matter. Alvarado acknowledged on
cross-examination that "there had been sort of an escalation"
before the "SERT team" was called and that "there was a lot of
The appellant brutally murdered Tackett and
seriously wounded Garza. The way in which he killed Tackett, by
stabbing her multiple times and slitting her throat, was
particularly violent. The circumstantial evidence indicated that
the offense was premeditated. Further, the appellant resisted the
police when they tried to arrest him, as he had done at another
time in the past. The evidence, viewed in the light most favorable
to the jury's finding, was such that any rational trier of fact
could have found beyond a reasonable doubt that there is a
probability that the appellant would commit criminal acts of
violence that would constitute a continuing threat to society.
Point of error three is overruled.
In his fourth point of error, the appellant
challenges the admission of "his 1999 drug conviction and related
resisting arrest charge" at the punishment phase. He asserts that
the conviction and charge "were clearly the result of a Fourth
Amendment violation" because the officers did not have reasonable
suspicion to stop and search him.
The trial court has wide latitude in admitting
or excluding evidence of extraneous offenses at the punishment
stage of a capital trial. (19) The
trial court has the discretion to admit any evidence relevant to
the jury's determination of a capital defendant's deathworthiness,
including evidence of adjudicated or unadjudicated extraneous
offenses. (20) The State's burden
is to "clearly prove" that the extraneous offense was committed
and that the appellant was the perpetrator.
(21) Here, by introducing the judgment of conviction and
presenting the testimony of police officers, the State clearly
proved that the appellant possessed a controlled substance and
resisted arrest in New York in 1999. Now the appellant makes an
impermissible collateral attack upon that prior conviction.
(22) Point of error four is overruled.
In point of error five, the appellant claims
that the trial court erroneously denied his request "to not
instruct the jury that mitigating evidence is evidence that
reduces the appellant's moral blameworthiness." In point of error
six, he argues that the trial court erroneously denied his request
to instead define "mitigating evidence" as "any evidence that may
serve as a basis for a sentence less than death, regardless of
whether the defendant is able to establish a nexus between the
evidence and the commission of the crime."
Pursuant to Article 37.071, the trial court
instructed the jury that it "shall consider mitigating evidence to
be evidence that a juror might regard as reducing the defendant's
moral blameworthiness." (23) The
appellant claims that this statutory definition is contrary to the
United States Supreme Court decisions in Smith v. Texas,
543 U.S. 37 (2004), and Tennard v. Dretke, 542 U.S. 274
He asserts that this definition "leads a
reasonable juror to believe that the juror cannot consider
evidence as mitigating unless it reduces the defendant's blame."
He further alleges that this definition "also requires a nexus
between the evidence and the circumstances of the offense since
the definition requires the evidence to reduce the defendant's
blame for the offense before it can be considered as mitigating."
We have decided this claim adversely to the
appellant in previous cases. (24)
In Perry, we specifically stated that the mitigation
special issue does not unconstitutionally narrow the jury's
discretion to factors concerning only moral blameworthiness and
that the Supreme Court's Tennard decision, which was
decided under another statutory scheme that did not include the
mitigation special issue, does not hold otherwise.
(25) Points of error five and six are overruled. We
affirm the judgment of the trial court.
Delivered: January 23, 2008
Do Not Publish
1. Tex. Penal Code §
2. Unless otherwise
indicated, all references to Articles refer to the Texas Code of
3. Art. 37.071, § 2(g).
4. Art. 37.071, § 2(h).
5. Laun testified that this
amount of crack cocaine would sell for approximately $10,000.
6. Batson v. Kentucky,
476 U.S. 79 (1986).
7. Herron v. State,
86 S.W.3d 621, 630 (Tex. Crim. App. 2002); Mathis v. State,
67 S.W.3d 918, 924 (Tex. Crim. App. 2002).
12. Tex. R. Evid. 403;
Long v. State, 823 S.W.2d 259, 272 (Tex. Crim. App. 1991).
13. Long, 823 S.W.2d
at 272; Santellan v. State, 939 S.W.2d 155, 172 (Tex.
Crim. App. 1997).
14. Sonnier v. State,
913 S.W.2d 511, 518 (Tex. Crim. App. 1995).
15. Santellan, 939
S.W.2d at 172; Burdine v. State, 719 S.W.2d 309, 316 (Tex.
Crim. App. 1986).
16. Narvaiz v. State,
840 S.W.2d 415, 429 (Tex. Crim. App. 1992).
17. Jackson v.
Virginia, 443 U.S. 307 (1979).
18. Allridge v. State,
850 S.W.2d 471, 488 (Tex. Crim. App. 1991).
19. Art. 37.071, § 2(a);
Hughes v. State, 24 S.W.3d 833, 843 (Tex. Crim. App.
20. Id.; Powell v.
State, 898 S.W.2d 821, 830 (Tex. Crim. App. 1994).
21. Hughes, 24 S.W.3d
at 843; cf. Hunter v. State, No. AP-74,983, ___ S.W.3d
___ (Tex. Crim. App. November 7, 2007)(stating there is no error
in not having a burden-of-proof instruction concerning extraneous
offenses as long as the punishment charge properly requires the
State to prove the special issues, other than mitigation and
affirmative defenses, beyond a reasonable doubt).
22. See Stone v. Powell,
428 U.S. 465, 493 (1976) ("[T]he additional contribution, if any,
of the consideration of search-and-seizure claims of state
prisoners on collateral review is small in relation to the costs.").
23. Art. 37.071, § 2(f).
24. Roberts v. State,
220 S.W.3d 521, 534 (Tex. Crim. App.), cert. denied,
128 S. Ct. 282 (2007); Perry v. State, 158 S.W.3d 438,
449 (Tex. Crim. App. 2004), cert. denied, 546 U.S. 933