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George RIVAS

 
 
 
 
 

 

 

 

 
 
 
Classification: Murderer
Characteristics: Member of the "Texas Seven" - Robbery
Number of victims: 1
Date of murder: December 24, 2000
Date of arrest: January 23, 2001
Date of birth: May 6, 1970
Victim profile: Aubrey Hawkins, 29 (Irving police officer)
Method of murder: Shooting
Location: Dallas County, Texas, USA
Status: Sentenced to death on August 29, 2001. Executed by lethal injection in Texas on February 29, 2012
 
 

 
 

photo gallery 1

photo gallery 2

 
 

 

United States Court of Appeals
For the Fifth Circuit

 
George Rivas v. Rick Thaler
 
 

 
 
Name TDCJ Number Date of Birth
Rivas, George 999394 05/06/1970
Date Received Age (when Received) Education Level
08/29/2001 31 12
Date of Offense Age (at the Offense) County
12/24/2000 30 Dallas
Race Gender Hair Color
Hispanic Male Black
Height Weight Eye Color
5 ft 10 in 214 Brown
Native County Native State Prior Occupation
El Paso Texas clerk, cook, laborer
Prior Prison Record


#702267 on a life sentence from El Paso County for 13 counts of aggravated kidnapping with a deadly weapon, 4 counts of aggravated robbery with a deadly weapon, and one count of burglary of a habitation.  Was serving the life sentence and had escaped from TDCJ when committing the present offense.
 

Summary of incident


While on escape from TDCJ, Rivas and 6 co-defendants robbed a sporting goods store at gunpoint. 

An Irving police officer was murdered outside the store as Rivas and co-defendants left the scene.
 

Co-defendants

Michael Rodriguez (sentenced to death)
Donald Newberry (sentenced to death)
Randy Halprin
Patrick Murphy, Jr.
Joseph Garcia
Larry Harper
 
Race and Gender of Victim
white male
 
 

 
 

Leader of 'Texas 7' prison-break gang put to death

Michael Graczyk, Associated Press

BeaumontEnterprise.com

Wednesday, February 29, 2012

HUNTSVILLE, Texas (AP) — The leader of the fugitive gang known as the "Texas 7" was executed Wednesday for killing a suburban Dallas police officer during a robbery 11 years ago after organizing and pulling off Texas' biggest prison break.

George Rivas, 41, from El Paso, received lethal injection for gunning down Aubrey Hawkins, a 29-year-old Irving police officer who interrupted the gang's holdup of a sporting goods store on Christmas Eve in 2000. The seven inmates had fled a South Texas prison about two weeks earlier.

The gang was caught in Colorado about a month after the officer's death. One committed suicide rather than be arrested. Rivas and five others with lengthy sentences who bolted with him were returned to Texas where they separately were convicted of capital murder and sentenced to die.

Rivas became the second of the group executed.

"I do apologize for everything that happened. Not because I'm here, but for closure in your hearts," Rivas said Wednesday evening in a statement intended for Hawkins' family. "I really do believe you deserve that."

The slain officer's relatives were absent, but four officers who worked with him and the district attorney who prosecuted the case attended on his family's behalf. They stood in the death chamber watching through a window just a few feet from Rivas.

The inmate thanked his friends who were watching through another window and said he loved them. A Canadian woman whom Rivas recently married by proxy, also looked on.

"I am grateful for everything in my life," Rivas said. "To my wife, I will be waiting for you."

Ten minutes later, at 6:22 p.m. CST, he was pronounced dead.

More than two dozen police officers in uniforms stood quietly in a line outside the Huntsville prison during the execution, then walked in unison to stand behind the state criminal justice spokesman as he announced Rivas' death.

Texas' parole board voted 7-0 this week to reject a clemency petition for Rivas. No 11th-hour appeals were made to try to head off the execution, the second this year in the nation's most active death penalty state.

Rivas and accomplices he handpicked for the escape broke out of the Texas Department of Criminal Justice Connally Unit, about an hour south of San Antonio, on Dec. 13, 2000. They overpowered workers, stole their clothes, broke into the prison armory for weapons and drove off in a prison truck.

They left behind an ominous note: "You haven't heard the last of us yet."

While out of prison, they supported themselves by committing robberies.

Hawkins was shot 11 times and run over with a stolen SUV driven by Rivas as the gang held up a sporting goods store closing on the holiday eve. They drove off with loot that included $70,000 in cash, 44 firearms and ammunition for the guns.

They were arrested a month later in Colorado, ending a six-week nationwide manhunt. One of the fugitives, Larry Harper, committed suicide as officers closed in.

In 2008, accomplice Michael Rodriguez, 45, who at the time of the breakout had a life term for arranging the slaying of his wife, ordered his appeals dropped and was executed. The four others remain on death row awaiting the outcome of court appeals.

"Today is not about George Rivas," said Toby Shook, the former Dallas County assistant district attorney who prosecuted Rivas and the others for Hawkins' death. "Today is about justice for Aubrey Hawkins and Aubrey's fellow police officers."

Rivas planned the escape while serving 17 life sentences for aggravated kidnapping and aggravated robbery and another life sentence for burglary.

One of his trial lawyers, Wayne Huff, has said Rivas picked accomplices for the breakout "who probably were more dangerous than he was" and failed to consider they might get caught doing robberies.

"When that cop pulled up, no one knew what to do," Huff said, calling the officer's slaying "just a tragic situation."

Rivas and two other members of the fugitive gang were arrested at a convenience store near a trailer park in Woodland Park, Colo. Two others were in a motor home at the trailer park, where Harper shot himself to death. The last two were apprehended at a motel in Colorado Springs, Colo.

The men had told the people who ran the RV park they were Christian missionaries from Texas, but a neighbor recognized them as the case was profiled on the "America's Most Wanted" TV show and called police.

The four "Texas 7" members still awaiting execution are Patrick Murphy Jr. 49; Joseph Garcia, 40; Randy Halprin, 34; and Donald Newbury, 49. Newbury was set for injection in early February but was spared, at least temporarily, by a U.S. Supreme Court order.


'Texas 7' Gang Leader Executed In Huntsville

February 29, 2012

HUNTSVILLE (CBSDFW.COM) – The leader of a group of prison escapees that became known as the Texas Seven is dead.

At 6:22 p.m. Wednesday, the state of Texas executed George Rivas, the highest profile death row inmate in years.

Rivas was already a notorious criminal, serving a total of 18 consecutive 15-year-to-life sentences, when he gained infamy in 2000 as the leader of a band of prison escapees.

Wednesday evening, the 41-year-old was administered a lethal injection in the state’s death chamber in Huntsville.

His last words were an apology to the family of a man he killed, Irving Police officer Aubrey Hawkins.

On Christmas Eve of 2000, eleven days after Rivas and six other violent prisoners broke out of the Connally Unit in Kenedy, the group robbed a sporting goods store in Irving.

Officer Hawkins arrived on the scene, was shot nearly a dozen times, and was then run over.

“I do apologize for everything that happened, not because I am here, but for closure in your hearts,” said Rivas in his final words. “I am ready to go.”

The seven escapees remained on the run for another month before authorities received a tip they were staying at an RV park in Woodland Park, Colorado.

Six of the escapees were captured, including Rivas, while a seventh committed suicide.

Rivas was tried in Dallas and said he deserved a death sentence, but spent 11 years appealing the punishment.

“Aubrey was my man, he worked for me, I felt responsible for him,” said former Irving Police Chief Lowell Cannady.

Among those in Huntsville who witnessed the execution was attorney Toby Shook, the prosecutor in the Rivas case.

“This crime couldn’t be more brutal… breaking out of prison, murdering a police officer. It’s a case that gives a great example to why the death penalty is appropriate in certain cases,” said Shook. “Today is not about George Rivas. Today is not about the death penalty. Today is about justice for Aubrey Hawkins.”

While a group of Irving police officers waited for word that Rivas had been executed, a text message brought a bittersweet smile to Cannady’s face.

“I got a text a little while ago that said his son is about to be a father, so I think that made me feel really good,” he said. “Everything from joy for him to regret that his father is not going to be here for that occasion.”

Michael Rodriguez is the only one of the six living escapees to be executed so far. Four others remain on death row in the Polunksy Unit in Livingston.


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.


The Texas 7 was a group of prisoners who escaped from the John Connally Unit near Kenedy, Texas on December 13, 2000. They were apprehended January 21-23, 2001 as a direct result of the television show America's Most Wanted.

The group was composed of the following Texas state prisoners:

  • Joseph C. Garcia

  • Randy Ethan Halprin

  • Larry James Harper (deceased by suicide)

  • Donald Keith Newbury

  • Patrick Henry Murphy, Jr.

  • George Rivas (Ringleader)

  • Michael Anthony Rodriguez (executed in 2008)

Escape

On December 13, 2000, the seven carried out an elaborate scheme and escaped from the John B. Connally Unit, a maximum-security state prison near the South Texas city of Kenedy.

At the time of the breakout, the reported ringleader of the Texas Seven, 30-year-old George Rivas, was serving 18 consecutive 15-to-life sentences. Michael Anthony Rodriguez, 38, was serving a 99-to-life term, while Larry James Harper, 37, Joseph Garcia and Patrick Henry Murphy, Jr., 39, were all serving 50 year sentences. Donald Keith Newbury, the member with the longest rap sheet of the group, was serving a 99-year sentence, and the youngest member, Randy Halprin, 23, was serving a 30-year sentence for injury to a child.

Using several well-planned ploys, the seven convicts overpowered and restrained nine civilian maintenance supervisors, four correctional officers and three uninvolved inmates at approximately 11:20 a.m. The escape occurred during the slowest period of the day when there would be less surveillance of certain locations like the maintenance area — during lunch and at count time. Most of these plans involved one of the offenders calling someone over, while another hit the unsuspecting person on the head from behind. Once the victim was subdued, the offenders would remove some of his clothing, tie him up, gag him and place him in an electrical room behind a locked door.

The attackers stole clothing, credit cards, and identification from their victims. The group also impersonated prison officers on the phone and created false stories to ward off suspicion from authorities.

After that, three of the group made their way to the back gate of the prison, some disguised in stolen civilian clothing. They pretended to be there to install video monitors. One guard at the gatehouse was subdued, and the trio raided the guard tower and stole numerous weapons. Meanwhile, the four offenders who stayed behind made calls to the prison tower guards to distract them. They then stole a prison maintenance pick-up truck, which they drove to the back gate of the prison, picked up their cohorts, and drove away from the prison.

Crime spree

The white prison truck was found in the parking lot of the Wal-Mart in Kenedy, Texas. The Texas 7 first went into San Antonio right after breaking out of the complex. Realizing that they were running out of funds, they robbed a Radio Shack in Pearland, Texas the next day on December 14 at around 2 AM. In order to bypass the otherwise-competent store security, they entered an adjacent computer software store, wherein they proceeded to knock down the flimsy sheetrock wall to the other side. Once inside and undetected, they tethered the Radio Shack safe to their truck, and literally dragged the large safe outside of the building, causing damage to the parking lot and pavement.

On December 19, four of the members checked into an Econo Lodge motel in Farmers Branch, Texas (under assumed names), where they decided to rob an Oshman's Sporting Goods in nearby Irving, Texas. On December 24, 2000, they held up the store and stole 44 guns. A customer standing outside of the store noticed the commotion inside and called police. Irving police officer Aubrey Hawkins responded to the call, arrived on the scene and was almost immediately ambushed; his autopsy would show that he had sustained eleven gunshots and his body had been run over by the fleeing gang.

After Hawkins' murder, a $100,000 reward was offered to whoever could snare the group of criminals. The reward would climb to $500,000 before the group was apprehended.

Capture and Conviction

A friend of Wade Holder, the owner of the Coachlight Motel and R.V. Park in Woodland Park, Colorado, happened to watch the television program America's Most Wanted on January 20, 2001 and told Wade that they were staying in his RV Park. He believed that the Texas 7, who were being compared to Angel Maturino Resendiz, were in his trailer park. When he confirmed this, he reported the suspicious activities to local authorities the next day on January 21.

The El Paso County Sheriff's Department SWAT team found Garcia, Rodriguez, and Rivas in a Jeep Cherokee in the RV Park. Authorities moved in and captured them at a nearby gas station. They then found Halprin and Harper in an RV; Halprin surrendered peacefully, but Harper was found dead after a standoff; he had shot himself in the chest and left temple with a pistol. The surviving four members were taken into police custody.

On January 23, they received information on the whereabouts of the last two. They were hiding out in a Holiday Inn in Colorado Springs, Colorado. A deal brokered between the two, Newbury and Murphy, allowed them to make live TV appearances before they were arrested.

In the early hours of January 24, a local KKTV television anchorman, Eric Singer, was taken into the hotel where on camera he interviewed the two by telephone. Both of them harshly denounced the criminal justice system in Texas, with Newbury adding "the system is as corrupt as we are."

Authorities later found out that a woman named Patsy Gomez conspired with a man named Raul Rodriguez, the father of Michael Rodriguez, to help the Texas 7.

George Rivas was sentenced to death after being extradited to Texas. Since then, the other five surviving members of the Texas 7 have also been put on death row alongside Rivas.

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.

Wikipedia.org


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..

O P I N I O N

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

Do Not Publish

*****

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

2. "Opinion" questions include questions concerning potential jurors' "knowledge of the case." Martinez v. State, 867 S.W.2d 30, 35 n. 7 (Tex. Crim. App. 1993)(citing Esquivel v. State, 595 S.W.2d 516, 522 (Tex. Crim. App.), cert. denied, 449 U.S. 986 (1980)), cert. denied, 512 U.S. 1246 (1994).

3. Rule 34.6(g)(2) of the Texas Rules of Appellate Procedure provides for the appellate court's use of original exhibits:

If the trial court determines that original exhibits should be inspected by the appellate court or sent to that court in lieu of copies, the trial court must make an order for the safekeeping, transportation, and return of those exhibits. The order must list the exhibits and briefly describe them. To the extent practicable, all the exhibits must be arranged in their listed order and bound firmly together before being sent to the appellate clerk. On any party's motion or its own initiative, the appellate court may direct the trial court clerk to send it any original exhibit.

TEX. R. APP. P. 34.6(g)(2).

4. Rule 702 TESTIMONY BY EXPERTS

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.

5. These factors 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. Kelly v. State, 824 S.W.2d 568, 573 (Tex. Crim. App. 1992).

6. The Nenno factors are "merely an appropriately tailored translation of the Kelly test to areas outside of hard science." Nenno, 970 S.W.2d at 561.

7. Coons had apparently made a similar prediction of future dangerousness at appellant's 1994 robbery trial when he predicted that appellant would be involved in gang activity in the penitentiary and would probably be a leader. In fact, as the defense brought out on cross-examination, appellant avoided gang involvement during his time in the penitentiary.

8. According to the APA brief:

Although a likelihood of future violent behavior may be assigned to a given individual solely on the basis of statistical "base rates" and other information of an actuarial nature, psychiatric determinations in this area have little or no independent validity. We believe, therefore, that diagnoses of "sociopathy" or "antisocial personality disorder," and predictions of future behavior characterized as "medical opinions," serve only to distort the factfinding process. Because the prejudicial impact of such assertedly "medical" testimony far outweighs its probative value, it should be barred altogether in capital cases.

Brief Amicus Curiae For the American Psychiatric Association, Barefoot v. Estelle, 463 U.S. 880, 103 S. Ct. 3383, 77 L. Ed. 2d 1090 (1983)(No. 82-6080).

The APA brief also argued that the introduction of such evidence through an "expert" prejudices the defendant in two ways:

First, psychiatric testimony is likely to be given great weight by a jury simply because it is, or purports to be, a statement of professional opinion. A psychiatrist comes into the courtroom wearing a mantle of expertise that inevitably enhances the credibility, and therefore the impact, of the testimony. . . . Second, and more important, psychiatric predictions of violent conduct unduly facilitate a jury's finding of future dangerousness by providing a clinical explanation for what is, at best, only an assessment of statistical probabilities.

Brief Amicus Curiae For the American Psychiatric Association, Barefoot v. Estelle, 463 U.S. 880 (1983)(No. 82-6080).

 

 

 
 
 
 
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