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United States Court of Appeals
For the Fifth Circuit

George Rivas (born May 6, 1970) was the ringleader of the infamous Texas 7 criminal group. Rivas, a career criminal, is on Texas' death row.

He was born in El Paso, Texas and raised by his grandparents from age six, after his parents divorced. In high school, Rivas dreamed of being a police officer, but his interest in money and guns helped shape him into a criminal. He named his dogs Ruger and Beretta, after two gun brands.

One year after graduating from Ysleta High School, he committed his first robbery and burglary. Since he had no prior criminal record, he was sentenced to ten years of probation. Meanwhile, he enrolled as a general studies major at the University of Texas at El Paso. He dropped out after three semesters, in the spring of 1993.

He eventually committed a string of robberies. He robbed a Radio Shack in El Paso on October 3, 1992; On October 23, he robbed a Checker's Auto Parts store. About two weeks later, he robbed an Oshman's sporting goods store. On May 12, 1993, he robbed a Furr's Grocery store in El Paso; and on May 25, 1993, Rivas and a friend robbed a Toys "Я" Us.

He was arrested after this robbery and suspected of having robbed stores in Texas, Oklahoma and New Mexico. Rivas was sentenced to 18 life sentences in prison, 17 of them consecutive. After a few years, he developed a plan to escape.

Rivas, along with six other men, broke out of the John Connally Unit in Kenedy, Texas on December 13, 2000. The following day, on December 14, he and his teammates robbed a Radio Shack in Pearland, Texas.

On December 24, the group robbed an Oshman's in Irving, Texas. He and his group shot and killed a police officer named Aubrey Hawkins. The reward for him and his accomplices grew after the infamous robbery and murder.

Rivas was arrested at a trailer park in Colorado on January 23, 2001 inside a Jeep Cherokee, with Joseph Garcia and Michael Rodriguez. Three others – Randy Halprin, Patrick Murphy and Donald Newbury, were arrested over the next two days. Larry Harper killed himself.

Rivas was extradited to Texas, tried and sentenced to death – the penalty he asked for. He is still on death row. Subsequent to his conviction, Rivas married a woman he corresponded with throughout his capital murder trial.

While the other surviving members of the Texas 7 are awaiting final resolution of their appeals, Rodriguez announced that he wished to forgo any further appeal (beyond the appeal to the Texas Court of Criminal Appeals, mandatory in all death-penalty cases). He underwent a court-ordered psychiatric evaluation in January 2007, which concluded that he was mentally competent to decide to forgo further appeals, and he was executed on August 14, 2008, the first of the surviving members to be executed.

Rivas, TDCJ#999394, was executed on February 29, 2012 at 6:22 pm.

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In the Court of Criminal Appeals of Texas

No. 74,143

George Rivas, Appellant,
v.
The State of Texas

On Direct Appeal from Dallas County

Johnson, J., delivered the opinion of the Court, in which Keller, P.J., and Price, Womack, Keasler, Hervey, Holcomb, and Cochran, JJ., joined. Meyers, J., concurred as to point of error seven and otherwise joined the opinion of the Court..

On August 29, 2001, appellant was convicted of capital murder. Tex. Penal Code Ann. § 19.03(a)(1), (a)(2). 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), ⁽¹⁾ the trial judge sentenced appellant to death. Art. 37.071, § 2(g). Direct appeal to this Court is automatic. Art. 37.071, § 2(h). Appellant raises seventeen points of error. We will affirm.

In his first two points of error, appellant argues that the trial court erred by admitting the written statement that he gave while he was detained in Colorado. Appellant claims that his statement was obtained in violation of Colorado law because jail personnel refused to allow the public defender to have immediate access to him. He contends that the laws of Texas and Colorado conflict as to the admissibility of his statement and that choice of law principles dictate that Colorado law should apply in this case. Such conflict, if any, is meaningless. The only relevant inquiry is whether the statement was obtained in compliance with the dictates of Article 38.22. See Nonn v. State, 41 S.W.3d 677, 679 (Tex. Crim. App. 2001). Appellant does not assert that his statement was obtained in violation of Article 38.22. Points of error one and two are overruled.

In his third point of error, appellant contends that he received ineffective assistance of counsel at the guilt/innocence phase of the trial. During a pretrial hearing, counsel challenged the legality of an evidentiary search warrant which authorized the taking of appellant's saliva for DNA testing. Counsel objected that it was an unreasonable search and seizure, the affidavit failed to establish probable cause, and the warrant was not signed by a district court judge. The trial court overruled counsel's pretrial objections. At trial, the state presented evidence without objection that appellant's DNA matched the DNA collected from the victim's gun and from the driver's seat of the store manager's Ford Explorer, which the assailants used to flee from the crime scene. Appellant contends that counsel was ineffective because he failed to re-urge his pretrial objections when the DNA evidence was introduced at trial.

It was not necessary for counsel to repeat the objections at trial. Fuller v. State, 827 S.W.2d 919, 930 (Tex. Crim. App. 1992), cert. denied, 509 U.S. 922 (1993); TEX. R. APP. P. 103(a)(1). The pretrial objections were sufficient to preserve error. Id. Point of error three is overruled.

In his fourth and fifth points of error, appellant challenges the trial court's refusal to submit to prospective jurors appellant's requested questionnaire concerning exposure to pretrial publicity. Appellant alleges in point of error four that the trial court's actions violated Articles 35.17 and 35.16. In point of error five, he contends that the trial court's actions violated his right to a fair and impartial jury under the Sixth and Fourteenth Amendments to the United States Constitution.

Appellant requested the trial court to submit the following questionnaire to the entire panel of prospective jurors prior to individual voir dire examination:

You have been called as a prospective juror in the State of Texas vs. George Rivas. This case has received pretrial publicity. George Rivas is charged with causing the death of Aubrey Hawkins, an Irving police officer, during the course of robbing a [sic] Oshman's Super Store in Irving, Texas.

Please answer the following questions:

Have you, as a result of the media, hearsay, or any other reason, formed in your mind, an opinion about the guilty [sic] or innocence of the defendant, George Rivas[?]

Yes _____ No _____

Would that conclusion influence you in your acts in finding a verdict in the case?

Yes _____ No _____

Appellant asked the trial court to submit this questionnaire to prospective jurors, before submitting the trial court's own questionnaire, "in an effort to decide which jurors were preliminarily qualified on the issue of publicity to fill out additional questions." The trial court refused appellant's request and instead propounded the following questions concerning publicity:

PLEASE INDICATE WHETHER YOU AGREE OR DISAGREE WITH THE FOLLOWING STATEMENTS:

(1) A defendant in a criminal case should be presumed to be innocent unless that [sic] the State proves their guilt beyond a reasonable doubt, if it does.

[ ] Agree [ ] Disagree

(2) A jury's verdict should be based only on the evidence heard in the courtroom, and not from what one hears outside the courtroom.

[ ] Agree [ ] Disagree

(3) What one hears in the news media is a better source of information than testimony one hears in the courtroom. [ ] Agree [ ] Disagree

Do you think you have heard about this case? [ ] Yes [ ] No

If yes, please give details (including how you heard - radio, TV, newspaper, word of mouth).

After the prospective jurors completed the trial court's questionnaire and before either side began individual voir dire, appellant again asked the trial judge to submit to the jury the publicity questions contained in appellant's proposed questionnaire. The trial court again denied appellant's request.

Appellant argues that the trial court was statutorily required to ask his proposed questions under Articles 35.17 and 35.16. Article 35.17(2) provides as follows:

In a capital felony case in which the State seeks the death penalty, the court shall propound to the entire panel of prospective jurors questions concerning the principles, as applicable to the case on trial, of reasonable doubt, burden of proof, return of indictment by grand jury, presumption of innocence, and opinion. Then, on demand of the State or defendant, either is entitled to examine each juror on voir dire individually and apart from the entire panel, and may further question the juror on the principles propounded by the court.

Art. 35.17(2)(emphasis added). Article 35.16(a)(10) states that a prospective juror may be challenged for cause if "from hearsay, or otherwise, there is established in the mind of the juror such a conclusion as to the guilt or innocence of the defendant as would influence him in his action in finding a verdict." Article 35.16(a)(10) further provides: "To ascertain whether this cause of challenge exists, the juror shall first be asked whether, in his opinion, the conclusion so established will influence his verdict. If he answers in the affirmative, he shall be discharged without further interrogation by either party or the court."

Appellant contends that Article 35.17(2) must be read in conjunction with Article 35.16(a)(10). He asserts that Article 35.17 dictates that the trial court "shall" first propound questions to the entire panel of prospective jurors concerning their "opinions," including their knowledge of the case. Then, under Article 35.16(a)(10), if a prospective juror has a preexisting conclusion as to the guilt or innocence of the defendant that would influence his verdict, he must be discharged for cause without further questioning by either party or the court.

By their plain language, Article 35.17 concerns the voir dire examination of prospective jurors, and Article 35.16 sets out the reasons for making a challenge for cause to a prospective juror. Nothing in the language of either statute refers to the other. The trial court asked prospective jurors about their knowledge of the case gained through exposure to pretrial publicity and their opinions about information from the news media, in compliance with Article 35.17(2). ⁽²⁾ In addition to the publicity-related questions, the trial court's questionnaire contained the following remarks concerning opinion and pretrial publicity:

There has been news media coverage regarding this case. If chosen as a juror you will have taken an oath that requires you to return a verdict, whatever that verdict is, on the basis of the evidence that you hear in the courtroom and not from some outside source. Therefore, there is nothing wrong with a prospective juror, such as yourself, having heard of this defendant. However, it is not permissible if what you have heard causes you to have a preconceived conclusive opinion that the defendant is guilty or not guilty, or a preconceived conclusive opinion as to what punishment the defendant should receive, if found guilty. A juror is not qualified to serve if there is established in the mind of the juror such a conclusion as to the guilt or innocence of the defendant as would influence the jurors action(s) in reaching a verdict.

. . . A juror, to be qualified, must set aside any opinion held concerning a defendant's guilt that was formed by the reading of newspaper accounts, by seeing or hearing other media reports, or through rumor or hearsay.

Appellant was also able to examine prospective jurors individually and apart from the entire panel regarding their opinions resulting from exposure to pretrial publicity, and to make challenges for cause accordingly. Art. 35.17(2); Art. 35.16(a)(10). The trial court did not abuse its discretion in refusing to submit appellant's proposed questions to prospective jurors. The trial court neither violated appellant's statutory rights under Articles 35.17 and 35.16, nor did it violate appellant's constitutional right to a fair and impartial jury. Points of error four and five are overruled.

In his sixth point of error, appellant asserts that the trial court violated his constitutional right to a fair trial by permitting two sheriff's deputies to sit directly behind him during jury selection. Appellant argues that the presence of two armed guards seated directly behind him "inevitably impacted" the jury's determination of the future-dangerousness special issue.

Appellant, to prevail on an appeal claiming reversible prejudice resulting from external juror influence, must show either actual or inherent prejudice. Howard v. State, 941 S.W.2d 102, 117 (Tex. Crim. App. 1996). The test to determine actual prejudice is whether jurors actually articulated a consciousness of some prejudicial effect. Id.

Inherent prejudice rarely occurs and is reserved for extreme situations. Id. In Holbrook v. Flynn, 475 U.S. 560 (1986), the Supreme Court distinguished the presence of guards from shackling and held that reason and common experience weigh against a presumption that the presence of guards in the courtroom is inherently prejudicial. Id. at 569. We have also held that the presence of guards is not as inherently prejudicial as shackling. Marquez v. State, 725 S.W.2d 217, 230 (Tex. Crim. App.), cert. denied, 484 U.S. 872 (1987). Appellant contends that these cases are not applicable because they focus on external juror influence as it affects the presumption of innocence, while the issue in this case involves the effect of external juror influence on the jury's determination of future dangerousness. Holbrook and its progeny are not so limited. In fact, the Supreme Court in Holbrook held that the presence of guards in a courtroom need not be interpreted as an indication that the defendant is culpable or particularly dangerous. Holbrook at 569.

The placement of the two sheriff's deputies behind appellant was not inherently prejudicial. Further, appellant has not demonstrated actual prejudice. At no time were jurors questioned regarding their conscious perception of impermissible external influence. Howard, 941 S.W.2d at 117 n. 12. Point of error six is overruled.

In point of error seven, appellant contends that the trial court violated Rule 403 in admitting fourteen autopsy photographs into evidence at the guilt or innocence phase of the trial. Appellant argues that the number of photographs was excessive, that they were gruesome in nature, and that their prejudicial effect outweighed any possible probative value. Rule 403 requires that a photograph have some probative value and that its probative value not be substantially outweighed by its inflammatory nature. Tex. R. Evid. 403; Long v. State, 823 S.W.2d 259, 272 (Tex. Crim. App. 1991), cert. denied, 505 U.S. 1224 (1992). 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. Long, 823 S.W.2d at 272; Santellan v. State, 939 S.W.2d 155, 172 (Tex. Crim. App. 1997). The admissibility of photographs over an objection is within the sound discretion of the trial judge. Sonnier v. State, 913 S.W.2d 511, 518 (Tex. Crim. App. 1995). Autopsy photographs are generally admissible unless they depict mutilation of the victim caused by the autopsy itself. Santellan, 939 S.W.2d at 172; Burdine v. State, 719 S.W.2d 309, 316 (Tex. Crim. App. 1986), cert. denied, 480 U.S. 940 (1987).

Appellant complains about the admission of state's Exhibits 195 through 208, autopsy photographs showing the victim's numerous injuries. The record contains 8 x 10 black-and-white photocopies of the fourteen original photographs. We cannot determine from the record whether the original photographs shown to the jury were color or black-and-white. ⁽³⁾

The state introduced evidence that appellant and the other assailants shot the victim multiple times and ran over his body with an automobile, dragging his body several feet in the process. Exhibits 195 through 200 depict injuries to the victim's head and neck. Exhibit 195 is a front view of the victim's face showing the wounds, cuts, and abrasions to his face, as well as an identification number on his forehead. Exhibit 196 shows the gunshot wound to the victim's eye, with the eye being held open by the medical examiner. Exhibit 197 is a view of the left side of the victim's head that shows the gunshot wounds to his face and neck. Exhibit 198 depicts the gunshot wound to the victim's ear. Exhibit 199 shows the gunshot wound to the back of the victim's neck. Exhibit 200 offers a closer view of the gunshot wounds on the left side of the victim's face and neck.

Exhibits 201 through 208 depict the injuries that the victim sustained to the rest of his body. Exhibits 201 and 202 show the gunshot wounds to the back of the victim's shoulder and his upper back. Exhibit 203 depicts the gunshot wound to the front of the victim's chest as well as abrasions and bruising in the chest area. Exhibit 204 shows the victim's naked body, from his head to his knees, lying face down on the autopsy table. Exhibits 205 and 206 show gunshot wounds on the victim's arms, and Exhibits 207 and 208 depict abrasions on his legs.

The medical examiner testified that he edited out several of the numerous autopsy photographs and chose only the ones that were necessary to explain the victim's injuries to the jury. Appellant complains that "the same information related in the photographs was available to the jury through other less prejudicial evidence," namely a life-sized mannequin which contained dowels to demonstrate the path of the bullets. We disagree. The purpose of the mannequin was to illustrate the entry and exit wounds and the trajectory of the path that the bullet took through the victim's body, while the autopsy photographs more fully explained the extent and nature of the victim's injuries. Appellant asserts that Exhibit 203, a photograph of the injuries to the victim's chest, should have been excluded because it showed suturing and defibrillation abrasions from resuscitation efforts in the emergency room. The medical examiner testified that the photograph was necessary to show the abrasions on the victim's chest. He explained to the jury that the sutured incision and one of the abrasions resulted from emergency resuscitation procedures, and clarified that the other abrasions were consistent with the victim being shot in the chest while wearing body armor. The depiction of the sutured incision in Exhibit 203 is not particularly offensive or gruesome, and the rest of the photographs at issue portray no more than the gruesomeness of the victim's injuries. Narvaiz v. State, 840 S.W.2d 415, 429 (Tex. Crim. App. 1992), cert. denied, 507 U.S. 975 (1993).

The danger of unfair prejudice did not substantially outweigh the probative value of the photographs. The photographs were relevant and probative to the medical examiner's testimony as to the nature and extent of the injuries and the cause of death. The trial court did not abuse its discretion in admitting state's Exhibits 195 through 208. Point of error seven is overruled.

In his eighth point of error, appellant argues that the trial court erroneously admitted the expert testimony of Dr. Richard Coons. Coons testified at punishment that it was his opinion that appellant would be a future danger to society. Appellant asserts that Coons' prediction of future dangerousness was inadmissible under Tex Rule Evid. 702 ⁽⁴⁾ because it failed to meet the requirements for scientific reliability, as defined in Kelly v. State, 824 S.W.2d 568 (Tex. Crim. App. 1992) ⁽⁵⁾, and Nenno v. State, 970 S.W.2d 549 (Tex. Crim. App. 1998) ⁽⁶⁾.

In a hearing outside the presence of the jury, Coons testified that he had formed an opinion about appellant's future dangerousness. His opinion was based on appellant's statements, police and autopsy reports, witness statements and affidavits, and previous psychiatric evaluations made by other psychiatrists who had examined appellant. In response to questions from the defense, Dr. Coons testified (1) that he himself had not examined appellant, (2) that he had not consulted with other experts in the field regarding his opinion, (3) that he was unaware of any literature or studies regarding predictions of future dangerousness in capital cases, and (4) that he himself had never performed any follow-up study to determine the accuracy of his own predictions, and thus did not know the rate of error.

The defense then objected on the record to the introduction of Dr. Coons' testimony as failing the test governing reliability of scientific testimony. The state countered by pointing to Dr. Coons' qualifications, to the fact that he had testified in similar matters before, and to the fact that the case law allows psychiatric testimony regarding future dangerousness. The trial court ruled Dr. Coons' testimony admissible, but allowed a running defense objection.

In the presence of the jury, Dr. Coons testified about his education and his extensive qualifications as a practicing psychiatrist. He testified that he had evaluated thousands of criminal defendants for issues such as competency to stand trial, sanity at the time of the offense, and the risk of future dangerousness. When asked what criteria he used when making assessments of future dangerousness in capital cases, Dr. Coons listed several factors that he looked at in order to make such determinations: First, he determined whether the defendant had an "active mental illness." He looked at the defendant's history of violence, his attitude about violence, and the facts of the offense in question. Then he looked at the defendant's personality and behavior patterns during his life so far. He considered whether the defendant appeared to have a conscience to help him control his behavior. And lastly, he looked at the future society of the defendant (i.e., whether that person would be on death row or in general population).

The prosecutor then asked Dr. Coons whether, if he were given a hypothetical fact situation, he could give an opinion as to whether the individual in the hypothetical would be a continuing danger to society by committing criminal acts of violence. Dr. Coons replied that he could do so, as a psychiatrist, if he had enough data. The state then presented a long hypothetical, based on the facts established by the evidence in appellant's trial, and Dr. Coons expressed his opinion that the person described in the hypothetical would probably commit criminal acts of violence in the future, which would constitute a continuing threat to society. Dr. Coons further testified that the person described would not be amenable to rehabilitation. Although he conceded that "you don't make a diagnosis of somebody that you haven't evaluated," he opined that the person described would not be suffering from any type of mental disease, but would have "personality problems" which would not be treatable.

Appellant made specific objections on the record to Dr. Coons' testimony, thereby preserving the issue for appeal. We review the trial court's decision to admit expert testimony under an abuse of discretion standard. Ortiz v. State, 834 S.W.2d 343, 347 (Tex. Crim. App. 1992).

In Nenno v. State, this Court held that, when addressing the reliability of the social sciences or fields that are based primarily upon experience and training as opposed to the scientific method, the appropriate questions are: (1) whether the field of expertise involved 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 or utilizes the principles involved in that field. Nenno, 970 S.W.2d at 561. We noted that while "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 . . . [w]e do not categorically rule out employing such factors in an appropriate case." Id. at 561, n.9.

The proponent of scientific evidence bears the burden of showing that the proffered evidence is relevant and reliable. Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000). After a hearing outside the presence of the jury, the trial court in this case ruled that Dr. Coons' testimony was admissible. During that hearing, the prosecutor listed the materials that had been provided to Dr. Coons, and established that Dr. Coons would testify as to his opinion in response to a hypothetical fact situation. Dr. Coons did not testify during this hearing about his educational background, his professional experience, or other qualifications. Nor did he explain the scientific basis for his opinion. The defense attacked the validity of Dr. Coons' proposed testimony based on the Kelly factors. When asked to respond, the state argued simply that the case law supported allowing psychiatrists to testify to future dangerousness, that Dr. Coons was "obviously very qualified, has testified in these matters before," and that he had previous experience with Mr. Rivas. ⁽⁷⁾ Because the state presented no other evidence, the trial court's decision to allow Dr. Coons' opinion was essentially taking judicial notice of the reliability of psychiatric testimony regarding future dangerousness.

The trial court's acceptance of the reliability of psychiatric testimony on this subject without requiring the state to present extrinsic evidence of that reliability is not unusual. Indeed, the United States Supreme Court held that such testimony was not per se inadmissible almost twenty years ago, in Barefoot v. Estelle, 463 U.S. 880, 103 S. Ct. 3383, 77 L. Ed. 2d 1090 (1983). Since that time, psychiatric prediction of future dangerousness has been widely used in our courts. See Griffith v. State, 983 S.W.2d 282, 288 (Tex. Crim. App. 1998)(approving expert opinion about future dangerousness based on review of investigative reports, crime scene photos, autopsy photos, witness statements, and defendant's school and personnel records), cert. denied, 528 U.S. 826 (1999); McBride v. State, 862 S.W.2d 600, 609 (1993)(hypothetical question based upon facts in evidence is a permissible form for a psychiatrist's testimony on the issue of future dangerousness), cert. denied, 512 U.S. 1246 (1994).

In deciding Barefoot in 1983, the United States Supreme Court addressed the punishment-phase testimony of two psychiatrists, who had at that time testified in more than 100 capital cases. After considering the arguments, including an impassioned amicus brief from the American Psychiatric Association ⁽⁸⁾, the Court refused to find such testimony inadmissible per se:

We are unconvinced, however, at least as of now, that the adversary process cannot be trusted to sort out the reliable from the unreliable evidence and opinion about future dangerousness, particularly when the convicted felon has the opportunity to present his own side of the case.

Barefoot v. Estelle, 463 U.S. at 901 (1983).

Dr. Coons' testimony in the instant case was certainly much more restrained than the psychiatric testimony in Barefoot. He did not claim 100% certainty in his prediction, and he admitted that it would not be proper to diagnose an individual without examining that individual personally. Most of the statements he made regarding an individual's propensity to commit violent acts in the future were based on common-sense principles (for example, individuals with a long history of violence tend to continue to commit acts of violence).

In this case, even if we were to find that the trial court erred in admitting Dr. Coons' testimony without requiring the state to meet its burden of showing reliability, we could not find that such an error would have influenced the jury's decision. We review the erroneous admission of testimony at the punishment phase under Rule 44.2(b) of the Texas Rules of Appellate Procedure. Fowler v. State, 991 S.W.2d 258 (Tex. Crim. App. 1999). Under Rule 44.2(b), we must disregard any error that did not affect appellant's substantial rights. An appellate court does not overturn a criminal conviction for non-constitutional error if it, after examining the record as a whole, has fair assurance that the error did not influence the jury, or influenced the jury only slightly. The appellate court should consider everything in the record, including testimony and physical evidence, the nature of the evidence supporting the verdict, and the character of the error and its relationship to other evidence. Schutz v. State, 63 S.W.3d 442 (Tex. Crim. App. 2001).

There was evidence that appellant had sexually abused his half-sister as a child. He was serving seventeen stacked life sentences for violent crimes when he orchestrated the violent prison escape that led to a police officer's death. After escaping to Colorado, appellant continued to acquire weapons, belying any claim that he planned to live peacefully on the outside. Dr. Coons' testimony could not have significantly influenced the jury's decision because appellant himself had demonstrated a continuing propensity for violent behavior which was unlikely to change. Point of error eight is overruled.

In point of error nine, appellant argues that "this appeal should be abated until the

record is supplemented to include the evidentiary search warrant used by the state to obtain DNA evidence from appellant." Appellant challenges the validity of the search warrant used to obtain a sample of his DNA. He claims that he cannot brief this issue for appeal without supplementation of the record.

On September 26, 2002, appellant filed a motion in this Court to abate his appeal so that the record could be supplemented with the challenged warrant. On October 2, 2002, we granted appellant's motion to the extent that we ordered the Dallas County District Clerk to supplement the record with the warrant. On October 10, 2002, we received a letter from the Dallas County District Clerk stating that he did not find the warrant and its accompanying affidavit in the trial court's file. Our own review of the record showed that the warrant and affidavit were not contained therein. There was no indication in the record that the warrant and affidavit were introduced as exhibits in appellant's case. Thus, we denied appellant's motion in its entirety on October 21, 2002.

We have already denied appellant's request to abate his appeal for supplementation of the record because the complained-of warrant and its accompanying affidavit were not introduced into evidence. For the same reason, we decline to abate the appeal so that appellant can prepare his point of error. Point of error nine is overruled.

Appellant challenges the trial court's parole-law jury instruction in point of error ten. The record reflects that the trial court submitted a parole-law jury instruction consistent with the one currently set out in Article 37.071, § 2(e)(2)(B):

Under the law applicable to this case, if the defendant is sentenced to imprisonment in the Institutional Division of the Texas Department of Criminal Justice for life, the defendant will become eligible for release on parole, but not until the actual time served by the defendant equals 40 years, without any consideration of good conduct time. It cannot accurately be predicted how the parole laws might be applied to this defendant if the defendant is sentenced to a term of imprisonment for life because the application of those laws will depend on decisions made by prison and parole authorities, but eligibility for parole does not guarantee that parole will be granted.

The trial court also instructed the jury as follows:

During your deliberations, you are not to consider or discuss the possible action of the Board of Pardons and Paroles or the Governor, nor how long a defendant would be required to serve on a sentence of life imprisonment, nor how the parole laws would be applied to this defendant. Such matters come within the exclusive jurisdiction of the Board of Pardons and Paroles and are of no concern of yours.

Appellant argues that this portion of the instruction erroneously informs the jury not to consider a life-sentenced appellant's parole eligibility. We disagree. Consistent with Article 37.071, § 2(e)(2)(B), this part of the charge instructed the jury not to consider how long a life-sentenced appellant would serve after becoming eligible for parole. See Turner v. State, 87 S.W.3d 111, 116 (Tex. Crim. App. 2002), cert. denied, 123 S. Ct. 1760 (2003). Point of error ten is overruled.

Appellant contends in point of error eleven that the mitigation special issue is unconstitutional because it omits a burden of proof. Appellant argues that Apprendi v. New Jersey, 530 U.S. 466 (2000), requires the state to prove beyond a reasonable doubt that the mitigation issue should be answered in the negative.

Apprendi is inapplicable to Article 37.071. Apprendi applies to facts that increase the penalty beyond the "prescribed statutory maximum." Under Article 37.071, the "prescribed statutory maximum" is fixed at death. There are no statutory enhancements. A positive jury finding on the mitigation issue does not have the potential of increasing the penalty beyond the prescribed statutory maximum. It has the potential for reducing the prescribed statutory maximum to a sentence of life imprisonment. Further, Apprendi does not address the burden of proof; it instead addresses the question of who the fact finder should be for the sentence enhancement. Allen v. State, 108 S.W.3d 281, 285(Tex. Crim. App. 2003). Point of error eleven is overruled.

In point of error twelve, appellant complains that the trial court failed to define the terms "probability," "criminal acts of violence," and "continuing threat to society" in its charge to the jury at the punishment phase. Appellant contends that the trial court's failure to instruct the jury properly violated his rights under the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution. We have previously rejected these arguments and have consistently held that these terms need not be defined in the charge. Ladd v. State, 3 S.W.3d 547, 572-73 (Tex. Crim. App. 1999), cert. denied, 529 U.S. 1070 (2000); Camacho v. State, 864 S.W.2d 524, 536 (Tex. Crim. App. 1993), cert. denied, 510 U.S. 1215 (1994). Point of error twelve is overruled.

Appellant argues in point of error thirteen that Article 37.071 violates the Eighth and Fourteenth Amendments by requiring at least ten jurors to agree in order to return a negative answer to the punishment special issues. Art. 37.071, § 2(d)(2) and § 2(f)(2). Citing Mills v. Maryland, 486 U.S. 367 (1988), he argues that this requirement creates the danger that potential hold-out jurors will believe that their votes in favor of a life sentence are worthless unless nine others agree to join them. We have previously decided this issue adversely to appellant. Williams v. State, 937 S.W.2d 479, 490 (Tex. Crim. App. 1996); Lawton v. State, 913 S.W.2d 542, 558-59 (Tex. Crim. App. 1995), cert. denied, 519 U.S. 826 (1996); Draughon v. State, 831 S.W.2d 331, 337-38 (Tex. Crim. App. 1992), cert. denied, 509 U.S. 926 (1993). Point of error thirteen is overruled.

Appellant complains in his fourteenth and fifteenth points of error that the Texas capital sentencing scheme violated his rights under the Fifth, Eighth, and Fourteenth Amendments to the United States Constitution and Article I, §§ 13 and 19, of the Texas Constitution. Appellant argues that the Texas scheme is unconstitutional "because of the impossibility of simultaneously restricting the jury's discretion to impose the death penalty while also allowing the jury unlimited discretion to consider all evidence militating against imposition of the death penalty." In support of his argument, appellant relies upon Justice Blackmun's dissenting opinion in Callins v. Collins, 510 U.S. 1141 (1994).

We have repeatedly rejected these state and federal constitutional claims. Bell v. State, 938 S.W.2d 35, 53-54 (Tex. Crim. App. 1996), cert. denied, 522 U.S. 827 (1997); McFarland v. State, 928 S.W.2d 482, 520 (Tex. Crim. App. 1996), 519 U.S. 1119 (1997); Lawton, 913 S.W.2d at 558. Appellant's fourteenth and fifteenth points of error are overruled.

In appellant's sixteenth and seventeenth points of error, he alleges that "the cumulative effect of the above-enumerated constitutional violations" denied him due process and due course of law under the federal and state constitutions. We have recognized the proposition that a number of errors may be found harmful in their cumulative effect; however, here we have rejected each of appellant's points of error individually. Without error, there is no cumulative effect. Chamberlain v. State, 998 S.W.2d 230, 238 (Tex. Crim. App. 1999), cert. denied, 528 U.S. 1082 (2000); Wyatt v. State, 23 S.W.3d 18, 30 (Tex. Crim. App. 2000). Appellant's sixteenth and seventeenth points of error are overruled.

We affirm the judgment of the trial court.

Johnson, J.

Delivered: June 23, 2004

En banc

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