v.

THE STATE OF TEXAS

ON DIRECT APPEAL

CAUSE NO. 199-80049-96 FROM THE 199TH DISTRICT COURT

COLLIN COUNTY

O P I N I O N

We understand appellant to have three basic, separate complaints on appeal regarding Lagrone. First, appellant should not have been required to submit to a Lagrone examination. Second, if appellant was required to submit to a Lagrone examination, this examination should have been limited to rebuttal of Peccora's testimony on appellant's mental decline. And, third, if appellant was required to submit to a Lagrone examination, the State should have been precluded from using any evidence derived from this examination on the future-dangerousness special issue. We find appellant's actual claims at trial to have been less clear.

[THE DEFENSE]: Sure. And the first part of the motion won't be the focus today. We're looking just, really, at the second part and the third part.

And regarding those parts, there are just two factual issues that we need to put evidence on.

The first factual issue is whether [appellant] has suffered a decline in his cognitive abilities and emotional stability as a result of his isolation on death row; and the second issue is whether [appellant] would have committed aggressive acts while incarcerated were it not for the isolation on death row.

[THE COURT]: Gotcha.

[THE DEFENSE]: Now, in legal terms, the way this fits in is, the State should not be able to enjoy the fruits of [the procedurally defaulted claim of prosecutorial misconduct at appellant's 1996 trial] that it committed eight and one-half years ago.

And if the Court finds that [appellant] has suffered a decline in his cognitive abilities and emotional stability-and, your Honor, it doesn't require a finding on our part that he is psychotic, we're not arguing he's not competent to stand trial; we're only arguing a significant decline in cognitive ability and emotional stability.

If that's the case, our argument is he may no longer be tried. The State committed [the procedurally defaulted claim of prosecutorial misconduct at appellant's 1996 trial] by putting him on death row, they caused him to be diminished as a result of many years in isolation there, and they can't enjoy the fruits of that at the new sentencing proceeding today.

And, in fact, he can't even be evaluated fairly as a future danger because he's not just the same person today, and the statute requires an evaluation of future dangerousness as of the time of trial.

Second, on the issue of whether [appellant] would have committed aggressive acts while incarcerated if not for the isolation that he was subjected to, the question is whether the State can present evidence of his misconduct on death row on the issue of future dangerousness.

And our position is that the State committed the primary illegality here [with the procedurally defaulted claim of prosecutorial misconduct at appellant's 1996 trial].

If the State can show by a preponderance of the evidence that the defendant's misconduct on death row would have occurred anyway, then we have nothing to complain about.

If you think of this in terms of an illegal search and seizure, and the fruits of an illegal search and seizure, clearly the illegality occurred. That means that the State can certainly try to overcome that illegality; show that, for instance, the evidence would have been obtained anyway; but they have the burden of showing that this misconduct would have occurred in any case.

We maintain that it's very clear from the testimony we'll present that the misconduct occurred precisely because of the isolation on death row that the State illegally placed him in.

The State claimed that appellant should not be permitted to present Peccora's testimony without the State having an opportunity to have appellant examined by a state psychiatric expert, and the trial court agreed.

[THE COURT]: Let me get something up front here.

I have had a chance to read, during some of that testimony, that Lagrone case, and I believe the State has a right to have [appellant] examined if the State's-if the defense is going to offer the evidence along the lines set out in [Peccora's] affidavit, which I've now reread.

The defense would not agree to a Lagrone examination "for the purposes of this pretrial motion" because of the risk that appellant's "examination to a psychiatrist of the State could actually be used against him at trial."

[DEFENSE LAWYER #1]: Well, let me-let me make this even more clear.

The reason that we're putting that into evidence at this point is, we are not going to allow [appellant] to be looked at by a psychiatrist.

[THE COURT]: I gotcha.

[DEFENSE LAWYER #1]: He'll invoke his Fifth Amendment right.

[DEFENSE LAWYER #2]: Your Honor, may I add?

I'd like to point out that we're being placed in a situation risking that [appellant's] testimony-[appellant's] examination to a psychiatrist of the State could actually be used against him at trial. Faced with that possibility, we can't have the-our client examined for the purposes of this pretrial motion. It's just a risk that we can't run.

The record, therefore, reflects that appellant took the position at this November 5, 2004, hearing that any evidence obtained by the State during a Lagrone examination might be used by the State on any issue at the punishment hearing (including future dangerousness). At this point, appellant had not alerted the trial court to any claim that the trial court should guarantee that a Lagrone examination be limited to rebutting any testimony by Peccora on appellant's mental decline and not to prove future dangerousness.

This motion also requested that a hearing be scheduled five days later on November 20, 2004, because that was "the only possible date for [Peccora's] voluntary attendance." This motion further "encourage[d] the Court to have the jury begin deliberations prior to any hearing, with the jury simply refraining from pronouncing its verdict before the hearing." This motion finally asserted that appellant was "willing to wait and have a hearing held after the verdict, in the context of a motion for a new trial, which in the present case might better be described as a motion for reconsideration of the sentence."

Appellant's November 15, 2004, motion contained no claim that the trial court's earlier ruling on the Lagrone issue was effectively preventing appellant from presenting constitutionally relevant mitigating evidence to the jury in the form of Peccora's testimony concerning appellant's mental decline. And, appellant made no claim that he wanted to present Peccora's testimony to the jury at the punishment hearing. In relevant part, appellant's November 15, 2004, written motion stated:

Defendant continues to insist that the Court ruled incorrectly in barring [Peccora] from testifying at the hearing of November 5, 2004 without a prior examination of [appellant] by the State's expert, but more seriously, as the Court recognized at the hearing, its decision created a risk for the Defendant-that the State would use its own examination of the Defendant not only on the pre-trial motion of Defendant's impairment, but to prove future dangerousness before the jury. The Defendant returns to the Court in this motion to request that the Court develop some device to permit it to overcome its dilemma.

* * *

Defendant has two proposals for the Court to overcome the problem it faces in needing to consent to an examination of [appellant] prior to any testimony by [Peccora]. First, Defendant asks the Court to order that the prosecution be permitted to examine [appellant], but on condition that the examination not be used for any purpose other than the question of his decline in cognitive ability and emotional stability on Death Row. Because [Peccora] will need to travel to McKinney from Houston, and because [Peccora's] mother is receiving chemotherapy this week and his patient schedule is therefore especially tight, the Defendant also requests that the hearing be scheduled for Saturday, November 20, since that is the only possible date for [Peccora's] voluntary attendance. The Defendant appreciates the difficulties that this causes the Court, but is unable to demand more of [Peccora] at a very trying time for him. Defendant would encourage the Court to have the jury begin deliberations prior to any hearing, with the jury simply refraining from pronouncing its verdict before the hearing.

Second, the Defendant is willing to wait and have a hearing held after the verdict, in the context of a motion for a new trial, which in the present case might be better described as a motion for reconsideration of the sentence. . . . Defendant would have preferred to have any competency-type issue resolved pre-trial, but in the context of the difficulty that [Peccora] will have attending a hearing, it is willing to accept this alternative, of the Court ruling against the Defendant for the purpose of the trial, but reconsidering the issue with an evidentiary hearing post-trial.

The trial court held a hearing on appellant's November 15, 2004, motion on the morning that it was filed. At this hearing, the defense agreed with the trial court that it was requesting the trial court to reconsider its earlier ruling on the Lagrone issue.

[THE COURT]: This is-it's titled basically the same way. They-the defense wants me to reverse my ruling barring [Peccora] from testifying about [appellant's] deterioration, is the best word I can recall-call it, because of his confinement death row for the last several years.

I had earlier ruled that I would not let-the issue arose that, if the I had allowed [Peccora] to testify, that the State was going to insist on having [appellant] examined by their expert, which I tended to agree they could do because of the case law as I read it. At that point, as I recall, the defense decided that it would not-they did not want to insist on [Peccora] testifying; but, instead, offered his affidavit which he had attached to the original motion instead, which I, of course, considered, and did consider.

And at that point that pretty much any of the-now, the State has filed a controverting affidavit; I believe I saw that one day last week.

And that was by [Price]? Is that your doctor?

[STATE]: Yes, your Honor.

[THE COURT]: Which I also-but I had earlier, before I'd actually seen [Price's] affidavit, I had denied the defense motion, and let it go at that. I have not done more on it.

And then Price's motion was filed, and now the defense has filed a motion-I think it's asking to reconsider, [defense lawyers]? Is that a fair statement?

[DEFENSE LAWYER]: Yes.

The State claimed at this hearing that the defense was "only stalling and asking for a delay in tactics." The State also stated that it wanted to make it "crystal clear" that it had never requested the trial court to bar Peccora's testimony, and that, in the pretrial context in which Peccora's testimony was initially offered at the November 5, 2004, hearing, the State had requested a Lagrone examination "to present controverting evidence if the defense presented that evidence." The State also requested the trial court to deny appellant's motion because it was, among other things, "untimely."

The trial court expressed the view that a Lagrone examination "would probably open everything up" about "anything relevant to [appellant's] mental state, including future dangerousness, which is the defense concern."

[THE COURT]: I did not have a chance to fully brief the-how far, if I could-if I could even restrict your expert if he didn't-assuming [Peccora] was allowed to testify, and then, consistent with my earlier ruling, then he would be entitled-the State would be entitled then to have their expert examine [appellant], and what that would open up.

And my belief is that it would probably open everything up. And if your witness testifies and-examines [appellant] and testified to whatever it is in response to Mr.-[Peccora's] testimony going to be, which, generally, is going to be that [appellant] deteriorated, degradated-degraded, I should say-on death row, I would suspect your witness would be entitled to testify about anything relevant to his mental state, including future dangerousness, which is the defense concern.

So I don't know how I can-Mr. Franklin, I don't know how I can limit, under the case law, their expert. I mean, I guess I could order it, but I'm not going to disregard the law.

So I don't know-I don't have-and the other option he suggests is to wait and have a hearing after the verdict. I-

The trial court ultimately denied appellant's request to limit a Lagrone examination to rebutting Peccora's testimony on appellant's mental decline. Appellant made no claim that this effectively prevented him from presenting constitutionally relevant mitigating evidence in the form of Peccora's testimony. Appellant again would not submit to a Lagrone examination, and he did not offer Peccora's testimony at the punishment hearing or any other hearing.

The record fairly reflects that it was not until after the State had rested its case-in-chief at the punishment hearing, during which it had presented evidence of appellant's death-row misconduct, that appellant for the first time alerted the trial court to the claim that it should guarantee that a Lagrone examination be limited to rebutting Peccora's testimony on appellant's mental decline. This was too late for appellant to have preserved for appeal the claims presented in points of error one and two. See Tex. R. App. Proc. 33.1(a)(1)(A) (to preserve error for appeal, complaining party must timely present claim to trial court with sufficient specificity to make trial court aware of complaint); Lankston v. State, 827 S.W.2d 907, 909 (Tex.Cr.App. 1992) ("all a party has to do to [preserve error] is to let the trial judge know what he wants, why he thinks himself entitled to it, and to do so clearly enough for the judge to understand him at a time when the trial court is in a proper position to do something about it").

In addition, appellant made no claim, in either his November 15, 2004, written motion or at the hearing on this written motion, that the trial court's ruling on the Lagrone issue effectively prevented him from presenting constitutionally relevant mitigating evidence in the form of Peccora's testimony on appellant's mental decline. See id. Appellant, therefore, failed to preserve for appeal the claim presented in point of error three.

Any possible harm flowing from a district court's in limine ruling permitting impeachment by a prior conviction is wholly speculative. The ruling is subject to change when the case unfolds, particularly if the actual testimony differs from what was contained in the defendant's proffer. Indeed even if nothing unexpected happens at trial, the district judge is free, in the exercise of sound judicial discretion, to alter a previous in limine ruling. On a record such as here, it would be a matter of conjecture whether the District Court would have allowed the Government to attack petitioner's credibility at trial by means of the prior conviction.

When the defendant does not testify, the reviewing court also has no way of knowing whether the Government would have sought to impeach with the prior conviction. If, for example, the Government's case is strong, and the defendant is subject to impeachment by other means, a prosecutor might elect not to use an arguably inadmissible conviction.

Luce, 469 U.S. at 41-42.

In a dissenting opinion in another case decided about sixteen years after Luce, Justice Souter approvingly described the decision in Luce:

We held [in Luce] that a criminal defendant who remained off the stand could not appeal an in limine ruling to admit prior convictions as impeachment evidence under Federal Rule of Evidence 609(a). Since the defendant had not testified, he had never suffered the impeachment, and the question was whether he should be allowed to appeal the in limine ruling anyway, on the rationale that the threatened impeachment had discouraged the exercise of his right to defend by his own testimony. The answer turned on the practical realities of appellate review.

Ohler v. United States, 529 U.S. 753, 760-61 (2000) (Souter, J., dissenting).

In point of error four, appellant asserts that the future-dangerousness special issue is unconstitutionally vague. This special issue requires the jury to determine "whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society." See Article 37.071, Section 2(b)(1), Tex. Code Crim. Proc. We have previously held that this special issue is not unconstitutionally vague. See Jurek v. Texas, 428 U.S. 262, 274-76 (1976); Sells v. State, 121 S.W.3d 748, 767-68 (Tex.Cr.App. 2003) (future-dangerousness special issue not unconstitutionally vague for failing to define "probability"); Murphy v. State, 112 S.W.3d 592, 606 (Tex.Cr.App. 2003) (future-dangerousness special issue not unconstitutionally vague for failing to define "probability," "criminal acts of violence," and "continuing threat to society"). Point of error four is overruled.

In points of error six through sixteen, appellant claims that the trial court erroneously denied his challenges for cause to eleven veniremembers: Vanlokeren (point six), Janszen (point seven), Gilbert (point eight), Wilson (point nine), Kunesh (point ten), Powers (point eleven), Kleber (point twelve), Gaus (point thirteen), Farris (point fourteen), Baird (point fifteen), and Garfield (point sixteen). As a result of the trial court's denial of these defense challenges for cause to these eleven veniremembers, appellant claims that he "suffered a detriment from the loss of [an] additional peremptory strike" and that "objectionable and biased jurors to the defense were seated on the Jury."

We review a trial court's ruling on a challenge for cause with "considerable deference" because the trial court is in the best position to evaluate the veniremember's demeanor and responses. See Colburn v. State, 966 S.W.2d 511, 517 (Tex.Cr.App. 1998). We will reverse a trial court's ruling on a challenge for cause "only if a clear abuse of discretion is evident." See id.

Harm from the erroneous denial of a defense challenge for cause occurs: (1) when a defendant uses a peremptory challenge to remove a veniremember whom the trial court should have excused for cause at the defendant's request, (2) the defendant uses all of his statutorily allotted peremptory challenges, and (3) the defendant unsuccessfully requests an additional peremptory challenge which he claims he would use to remove another veniremember whom the defendant identifies as "objectionable" and who actually sits on the jury. See Newbury v. State, 135 S.W.3d 22, 30-31 (Tex.Cr.App. 2004); Wolfe v. State, 178 S.W.2d 274, 281 (Tex.Cr.App. 1944) (op. on reh'g). When these conditions are met, this Court has stated that the trial court's erroneous denial of a defense challenge for cause harms the defendant by wrongfully depriving him of at least one of his statutory peremptory challenges that he could have used to remove the juror whom the defendant identifies as "objectionable." See Newbury, 135 S.W.3d at 31; Wolfe, 178 S.W.2d at 280.

[DEFENSE]: Your Honor, based on the Court's decision to deny the challenge [to Garfield], we would request additional preparatory [sic] strikes at this time.

Would, for the record, point out that, in addition to this juror that we would not want on the panel, the challenges for cause that also having been made and used on the other jurors-specifically Juror Number 189, Kleber-the challenges for cause that were denied by the Court, 189, Dennis Kleber; 175, Joyce Powers; 127, Marie Kunesh; 101, Don Wilson; 28, Patti Gilbert-especially Patti Gilbert-Juror-I'm sorry; Juror 6, Bruce Van Lokeren.

For those reasons, we request an additional peremptory at this time.

[THE COURT]: Mr. Harrison I'm going to decline to do that. I'm conscious of your position.

I feel like the Court's been very careful in considering your challenges, and somebody else may think otherwise; but I'll decline to give you additional challenges at this time.

So what says you all about the Juror Garfield?

[DEFENSE]: Well, based on the decision, we are forced to accept.

In addition, the portion of the record of Garfield's voir dire set out in appellant's brief does not support the assertion that Garfield stated that he would require the defense to show mitigating circumstances.

Q. [DEFENSE]: Now, along with the [mitigation special issue] kind of comes into play the Fifth Amendment.

The Fifth Amendment, the defendant's right not to incriminate himself, applies to the punishment phase just like it does the guilt-innocence phase.

If a defendant does not testify in the punishment phase, the Judge will instruct you to not consider that for any purpose. It's a nonfactor. Look at all the other evidence that you have, make a decision based on all the other evidence, but don't consider that.

Do you have a problem following that law.

Garfield also stated that he could "keep an open mind and consider everything for mitigation on the [mitigation special issue]."

Q. [DEFENSE]: The law requires that you've still got to keep an open mind and consider everything for mitigation on [the mitigation special issue].

Can you promise me you can do that?

A. [GARFIELD]: I can promise you that.

* * *

Q. Okay. And the reason I ask, especially on [the mitigation special issue], we have some jurors tell us that, you know, if I'm going to make a determination if there's mitigating circumstances, I kind of need to hear from the defendant; that's the only way I can make that decision.

Other jurors say, that's not a problem for me; I can follow the law and base it on the testimony and the evidence I hear.

Can you do that?

A. I can.

On this record, no "clear abuse of discretion is evident" in the trial court's denial of appellant's challenge for cause to Garfield. See Colburn, 966 S.W.2d at 517. Point of error sixteen is overruled.

Since appellant received two extra peremptory challenges, appellant must show that the trial court erroneously denied at least three of his challenges for cause to the other veniremembers identified in points six through fifteen. See Newbury, 135 S.W.3d at 31; Chambers v. State, 866 S.W.2d 9, 23 (Tex.Cr.App. 1993). This would satisfy the required showing for harm by demonstrating that appellant was wrongfully deprived of at least one of his statutory peremptory challenges. See Newbury, 135 S.W.3d at 31.

In point of error six, appellant claims that veniremember Vanlokeren was challengeable for cause because "he had a strong bias in favor of law enforcement and would want the defendant to testify." The record reflects that appellant did not challenge Vanlokeren on the latter basis of wanting appellant to testify, so we do not consider this claim. The record further reflects that Vanlokeren, whose father was a police officer, stated on voir dire that this would not prevent him from being able to "follow the law" as it had been explained during voir dire or prevent him "from looking at things objectively." Appellant even stated in making his challenge for cause that Vanlokeren "vacillated back and forth."

[DEFENSE]: Yeah. You said challenge.

Judge, I would challenge [Vanlokeren] based on the bias he's expressed and the-the way he's kind of vacillated back and forth with that as to-as to being able to hold the State to its burden [on the future-dangerousness special issue], proving beyond a reasonable doubt in the punishment phase.

[THE COURT]: Briefly, Ms. Scanlon, do you want to respond to that?

[STATE]: Your Honor, I believe that [Vanlokeren] was unequivocal in saying that he could follow the law as given. After multiple times of being asked by Mr. Harrison, he still stated that he would follow the law; he would put those biases aside and decide the facts of the case based on the evidence presented.

[THE COURT]: All right.

Mr. Harrison, I'm going to deny your challenge. I watched the juror and heard his answers, of course. He's a very thoughtful person. And the record won't necessarily reflect; he paused before he answered-well, the record may reflect since I've said it now-before he responded to some of your questions.

And I conclude on totality of his answers that he would be able to follow this law and discharge his oath as a juror, so I'll deny your challenge.

The trial court was in the best position to determine whether Vanlokeren was challengeable for cause. On this record, no "clear abuse of discretion is evident." See Colburn, 966 S.W.2d at 517.

In point of error seven, appellant claims that veniremember Janszen was challengeable for cause because she was "predisposed to automatically answering 'yes' to [the future-dangerousness special issue] if someone was convicted of murder" and because she "wanted to hear from the defense why the defendant should not get the death penalty." The record reflects that appellant did not challenge Janszen on the latter basis of wanting to hear from the defense on why appellant should not get the death penalty, so we do not consider this claim.

The record reflects that Janszen initially stated to the defense that she would answer "yes" to the future-dangerousness issue if the only evidence presented was an intentional killing during a robbery. She later stated that there "would be some cases of capital murder where [she] would say yes to the [future-dangerousness special issue], and there would be some that [she] would say no." She later stated that she thought that she could keep an open mind and require the State to prove the future-dangerousness special issue.

Appellant challenged Janszen for cause on the basis that she was "predisposed" to answering the future-dangerousness issue "yes" after convicting someone of capital murder. The trial court denied the challenge.

[DEFENSE]: Your Honor, the defense would challenge [Janszen] based on the answer she gave to [the future-dangerousness special issue].

I think she gave some honest answers and feeling that she was predisposed to find somebody a continuing threat if they were guilty of capital murder.

The law was explained to her a number of times. The first item of couples [sic] of times she stuck with her answer, and I feel like that that's her honest feeling; that if somebody had been found guilty of capital murder, that she was predisposed to answer that yes and not require the State to meet the burden of proof on that issue.

So we challenge her-challenge [Janszen] on that.

[THE COURT]: Ms. Leyko, do you just want to respond-I don't want to bring her back in to do it, but-

[STATE]: Your Honor, no. I believe she said she could be fair. The only time she said she would answer [the future-dangerousness special issue] yes is when she thought she had a specific set of facts. And that was actually pinning her, and probably in violation of Standefer.

But when given a different scenario, she said no. And when asked specifically, are you predisposed, she said she could be fair. She'd make us prove the case-prove that question to her beyond a reasonable doubt.

And when Mr. Harrison would back off the specific fact scenario and just say, are there some capital murders that would be yes and some no, she said yeah. I mean, to her it depends on the facts, and she understands it's our burden, and she said she could follow the law.

[THE COURT]: Mr. Harrison, I'll deny your challenge. I think she's qualified.

The trial court was in the best position to determine whether Janszen was challengeable for cause. On this record, no "clear abuse of discretion is evident." See Colburn, 966 S.W.2d at 517.

In point of error eight, appellant claims that veniremember Gilbert was challengeable for cause because she, too, "had predetermined that if a person was convicted of capital murder, she would automatically answer 'yes' to [the future-dangerousness special issue]." The record, however, reflects that Gilbert vacillated. For example, during questioning by the defense, she stated that she'd be "leaning toward finding them dangerous" after a conviction for capital murder.

Q. [DEFENSE]: Honestly, you told me that, honestly, you felt like you'd be leaning toward somebody being found dangerous once they'd been convicted of capital murder.

A. [GILBERT]: Yes, I do.

Q. And you indicated-the law says you can't do that, but you're telling me that, even though you know you're supposed to start it out as no, and make the State prove, yes, they are a continuing threat, being honest with me and being true to your oath, you'd already be leaning toward finding the person dangerous. And you wouldn't start it out as a no.

A. This is all so new to me.

Q. Oh, sure.

A. And I know I probably have contradicted myself a thousand times already, but, um-

Q. Well, but it's like you said. I need your honest answer. I mean, if you honestly feel that way, and that's how you feel, that's fine. We have plenty of people feel that way, too. They say, hey, look, Rick, if somebody's already been found guilty of capital murder, and there's no excuse given, and they specifically intended to kill somebody, you know, being honest with you, I know the law says I'm supposed to start that question out no and make the State prove it to me beyond a reasonable doubt; but being honest with you, and the way I honestly feel, I wouldn't be able to start it out as no; I'd be leaning toward finding them dangerous; and you know, you almost have to prove to me that they weren't.

A. Right. I agree that way.

Q. Is that how you honestly feel?

A. Yes.

When subsequently questioned by the State, Gilbert stated, however, that she could "set [her] biases aside, follow the law, and presume [the future-dangerousness special issue] no until [the State] prove[d] it to [her] beyond a reasonable doubt."

Q. [STATE]: Ms. Gilbert, not to continue to harp on this same issue; I just want to kind of clarify and make sure we understand you completely.

You indicated that you had a predisposition or a leaning toward-on [the future-dangerousness special issue], a leaning toward, yes, you'd find him to be a future danger.

We all have predispositions; we all have beliefs; we all-as much as we like to think we're unbiased and neutral, we all have our leanings. We're just designed that way.

We don't like murderers; we don't like child molesters. We're built that way.

To be fair, and to be qualified to be on a jury, what you have to be able to do is set those leanings, those biases, aside and follow the law.

A. [GILBERT]: Exactly.

Q. With regard to [the future-dangerousness special issue], though you have a leaning toward, yeah, I would find him to be a future danger, understanding we have the burden on that question-and what that means is, that question is presumed to be no.-can you set your biases aside, follow the law, and presume that question no until we prove it to you beyond a reasonable doubt?

A. Yes. I could do that.

Q. And so even though they've asked you your leaning, your predisposition, and knowing that's your true feeling, you could wipe that, start out with a clean slate, you're presuming this question no, until we've proven it to you beyond a reasonable doubt.

A. Yes. I could do that.

The trial court did not abuse its discretion to deny appellant's challenge for cause to Gilbert based on her conflicting answers. See Colburn, 966 S.W.2d at 517. On this record, no "clear abuse of discretion is evident." See id.

In point of error nine, appellant claims that veniremember Wilson was challengeable for cause because he, too, was "predetermined that if a person was convicted of capital murder, he would automatically answer 'yes' to [the future-dangerousness special issue]" and because he would require the defense "to prove the issue of mitigation." The record reflects that appellant did not challenge Wilson on the former basis that he would automatically answer "yes" to the future-dangerousness special issue when a defendant has been convicted of capital murder, so we do not consider this claim. And, Wilson was not challengeable for cause "simply because he would place the burden of proof on mitigation on the defense." See Ladd, 3 S.W.3d at 559. Wilson also testified that, if the evidence from whatever source showed mitigation, he would consider it in answering the mitigation special issue.

Q. [DEFENSE]: Well, I understand that. But in-and sometimes that's what happens. Sometimes-like Ms. Scanlon says, all the defense-all the defendant has to do is show up, and we show up with him. And a lot of times in a case the defense doesn't do anything but show up.

And in-in a situation like this, in answer to [the mitigation special issue], I take it that you would really want the defense to do something in order for you to answer-

A. [WILSON]: I would want evidence, you know.

Q. From the defense.

A. From everybody. Yes. I'd want to be able to understand what the whole situation was.

I mean, if you don't present a defense, it's hard to agree one way or the other.

Q. If the defense did not present any evidence to you, any evidence to you, would you just close off any deliberation on mitigation altogether and not look for it anywhere else that it may come up?

Because it can be anywhere.

A. It can be anywhere. I would look for whatever the possibilities are.

I would prefer it came from the defense; that would be my preference. But I have to look at the evidence, and, if the evidence showed something along that nature, then I would have to look at that and examine it and proceed on it accordingly.

The trial court was in the best position to determine whether Wilson was challengeable for cause. On this record, no "clear abuse of discretion is evident." See Colburn, 966 S.W.2d at 517.

In point of error ten, appellant claims that veniremember Kunesh was challengeable for cause because "she could not consider a number of mitigating circumstances." Kunesh stated that what she defined "as mitigating or extenuating has to meet an extraordinarily high bar before we say that it indeed is what we're going to use as a safety net to back off on the death penalty." There "is no per se evidence that must be viewed by a juror as having definitive mitigating effect." See McFarland v. State, 928 S.W.2d 482, 497-98 (Tex.Cr.App. 1996). The trial court, therefore, did not abuse its discretion to deny appellant's challenge for cause to Kunesh.

In point of error eleven, appellant claims that veniremember Powers was challengeable for cause because "she had predetermined that if a person was convicted of capital murder, she would automatically answer 'yes' to [the future-dangerousness special issue], she could not consider alcohol or drug use as mitigating circumstances and she would place a burden on the defense to prove mitigation." The record reflects that Powers vacillated on whether she would automatically answer "yes" to the future-dangerousness special issue after a capital murder conviction. She ultimately stated that she could presume a "no" answer and wait for the State to prove it.

Q. [DEFENSE]: Okay. So let's try it one more time.

The law says you've got to presume [the future-dangerousness special issue] to be, no, he's not a continuing threat, and the State has to prove it to you.

Now, I asked you, and you and some other jurors feel like sometimes that, even though that's what the law is, I'd have a problem presuming that to be no, and I would presume that to be yes. That's the way I'm-even though the law says I'm supposed to presume it no, being honest with you, if he's already been convicted of capital murder, I'm going to probably be presuming that to be yes.

And, I'm asking you, do you have that same problem, or not?

A. [POWERS]: My-my first thought would be yes.

Q. Right.

A. Now, I have to wait for the State to give me the evidence to prove to me that they are a future danger to society.

Q. Right. So the question becomes-

A. I will look at the evidence before I make a final decision.

Q. Okay. And that's great. But the question still that we need to know is, can you presume [the future-dangerousness special issue] to be no, even though somebody's been convicted of capital murder?

A. Yes.

Q. Okay. So everything you said earlier, were you just confused with what I was saying?

A. Yes.

And, there is no per se evidence that Powers was required to view as having definitive mitigating effect. See McFarland, 928 S.W.2d at 497-98. Powers also was not challengeable "simply because [s]he would place the burden of proof on mitigation on the defense." See Ladd, 3 S.W.3d at 559. Powers also ultimately stated that she could consider a life sentence even if the defense did not present "anything" to her.

Q. [DEFENSE]: Okay. So you would feel the defense would have to bring you something-

A. [POWERS]: Yeah.

Q. -to warrant a life sentence versus a death sentence with a [sic] mitigating circumstances.

A. Yes.

Q. Okay. And if the defense didn't bring that to you, or that wasn't brought, that might be a problem for you in considering a life sentence.

A. No. It wouldn't be a problem if it-if you're not presenting anything to me-

Q. Right.

A. -it's not going to be a problem.

The trial court was in the best position to determine whether Powers' was challengeable for cause. On this record, no "clear abuse of discretion is evident." See Colburn, 966 S.W.2d at 517.

In point of error twelve, appellant claims that veniremember Kleber was challengeable for cause apparently because he would not consider as mitigating "drug use, alcohol use, some of those things; anything that you do on your own that you've made a decision on your own to use." Kleber was not required to consider these things to be mitigating. See McFarland, 928 S.W.2d at 497-98. The trial court, therefore, did not abuse its discretion to deny appellant's challenge for cause to Kleber.

In point of error thirteen, appellant claims that veniremember Gaus was challengeable for cause because "he would give the death penalty to someone who was convicted of capital murder and had found [the future-dangerousness special issue] to be yes." Appellant challenged Gaus for cause on the basis that he "would not be really interested in moving on down to [the mitigation special issue] and considering mitigation" after answering "yes" to the future-dangerousness special issue.

Gaus stated, during questioning by the State, that he thought the mitigation special issue was necessary and that he would be "able to listen to all the evidence and weigh it accordingly."

Q. [STATE]: -what was your impression, or what do you think of this [mitigation special issue]? What do you take it to be?

A. [GAUS]: (No audible response)

Q. Nothing.

A. (No audible response)

Q. Nothing?

A. It's just-it-the way I understand it, and my take on it, would be that there's something-evidence or special circumstances involved here whereas the murder would not-or the death sentence would not be justified.

Q. And that's exactly-that's exactly it. The legislature created this vehicle or this question as a vehicle, as a chance, if you will, to take a step back; that a defendant has been found guilty beyond a reasonable doubt of capital murder, has been proven to you beyond a reasonable doubt to be a probable continuing threat to society; regardless of those two factors, is there anything that you've heard, any evidence, that is sufficiently mitigating to warrant life rather than death.

A. Mm-hmm.

Q. What do you think about that? Do you think that's a good thing? Bad thing?

A. I think it's necessary.

Q. Okay. Since we're dealing with someone's life?

A. Sure.

Q. Okay.

Mitigating evidence is not going to be defined for you. It's going to be whatever you think it is.

To be qualified as a juror, we just need you to have an open mind and not automatically exclude a piece of evidence just because of the nature of the evidence. For instance, saying, I won't consider someone's background, because I know people that came from a poor or abusive background, and they don't kill people.

Do you think you'd be qualified as a juror; able to listen to all the evidence and weigh it accordingly?

A. Yes.

Gaus later stated, during questioning by the defense, that "[t]here's a very good chance he'd go with the death penalty" after a "yes" answer to the future-dangerousness special issue and that there were "probably very few things" that he would consider "as mitigating factors." On this record, the trial court would not have abused its discretion to find that Gaus never expressed a categorical refusal to consider the mitigation special issue after a "yes" answer to the future-dangerousness special issue. See Colburn, 966 S.W.2d at 517.

Based on the foregoing, we conclude that the trial court did not erroneously deny appellant's challenges for cause to Vanlokeren (point six), Janszen (point seven), Gilbert (point eight), Wilson (point nine), Kunesh (point ten), Powers (point eleven), Kleber (point twelve), and Gaus (point thirteen). Since appellant has to show that the trial court erroneously denied his challenges for cause to at least three of the veniremembers identified in points six through fifteen, it is unnecessary to decide whether the trial court erroneously denied his challenges for cause to Farris (point fourteen) and Baird (point fifteen). See Newbury, 135 S.W.3d at 41. Points of error six through fifteen are overruled.

In point of error eighteen, appellant claims that the evidence is legally insufficient to support the jury's finding that there is a probability that appellant would commit criminal acts of violence that would constitute a continuing threat to society. We apply the Jackson v. Virginia standard in determining whether the evidence is sufficient to support this finding. See Allridge v. State, 850 S.W.2d 471, 487 (Tex.Cr.App. 1991) (appellate court views the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have believed beyond a reasonable doubt that the defendant would probably commit criminal acts of violence that would constitute a continuing threat to society).

The evidence shows that appellant and an accomplice (Chavez) forced the victim into the victim's car in the parking lot of a grocery store. Appellant and Chavez took the victim in his own car to a remote location and parked. Appellant led the victim into some woods while Chavez waited at the car. Appellant shot the victim five times with the last shot to the head at close range to make sure the victim was dead. Appellant was confrontational when the police arrested him about an hour later. That evening, several police officers observed that appellant was unremorseful and that his situation seemed like "a joke to him." One officer told appellant several times that he should take his situation seriously and stop laughing. Appellant was involved in an attempted armed robbery about five days before the victim's murder. Appellant engaged in numerous acts of misconduct while incarcerated on death row. We decide that the evidence is sufficient to support the jury's finding on the future-dangerousness special issue. Point of error eighteen is overruled.

In point of error seventeen, appellant claims that the trial court erred in not allowing him to present, as constitutionally relevant mitigating evidence, evidence that Chavez received a life sentence for his lesser role in the victim's murder. This Court has held that "evidence of a co-defendant's conviction and punishment is not included among the mitigating circumstances which a defendant has a right to present" in part because this evidence does not relate to the defendant's "own circumstances." See Morris v. State, 940 S.W.2d 610, 613-14 (Tex.Cr.App. 1996).

Appellant claims that more recent United States Supreme Court cases such as Tennard v. Dretke, 542 U.S. 274 (2004), have "impliedly overrule[d] any prior rule of Texas evidence that would normally prevent the use of this type of evidence at a punishment hearing because of the special nature of a capital murder death case." We disagree, because, even though cases such as Tennard establish a "low threshold for [constitutional] relevance," these cases still require that the proffered evidence relate to the defendant's "own circumstances." See Tennard, 542 U.S. at 284-85 (placing virtually no limits on evidence that a capital defendant may introduce "concerning his own circumstances"). Point of error seventeen is overruled.

In point of error nineteen, appellant claims that "the trial court erred in not concluding the punishment hearing and imposing a life sentence based on the trial court being made aware of the issues supporting the reversal of the recent death penalty case of Smith v. State, 543 U.S. 37 (2004)." Appellant claims that the statutory mitigation special issue set out in the version of Article 37.071, Tex. Code Crim. Proc., applicable to appellant's case "is nothing more than a nullification issue to [the future dangerousness special issue]."

The Supreme Court's decision in Smith addressed the constitutionality of a non-statutory, "nullification" special issue that effectively instructed the jury to compromise its ethics and disregard its oath and instructions by changing one of its "yes" answers to one of the other statutory special issues to a "no" answer if the jury believed that mitigating circumstances existed warranting a sentence less than death. See Smith, 543 U.S. at 38-39, 45-49. The statutory mitigation special issue submitted in this case is nothing like the "nullification" instruction at issue in Smith. The statutory mitigation special issue in this case provided appellant's jury a vehicle to "fully" consider and give effect to appellant's mitigating evidence without requiring the jury to disregard its oath and instructions by changing its answer to the future-dangerousness special issue. Unlike Smith, the jury in this case could have "fully" considered and given effect to appellant's mitigating evidence by providing a "yes" answer to the mitigation special issue. Point of error nineteen is overruled.

Q. [STATE]: State's Exhibit No. 57, what is this a photograph of?

A. [MEDICAL EXAMINER]: Well, this is the entry site behind [the victim's] left ear.

Now, this is a photograph that is dirty, or not cleaned up. I haven't shaved away the hair so you can better see the entry, and haven't cleaned up any blood. This is as it is uncleaned.

* * *

Q. Dr. Rohr, looking at State's Exhibit No. 50, what are we looking at here?

A. Well, this is a cleaned-up photograph of the entry site behind the left ear. Here I have the hair shaved away, and I've cleaned away a lot of the blood, and you can easily see the entry wound.

One of the things I'd like to point out is that there's characteristics of a contact wound here, and that there's splitting of the wound here, a long laceration; and if you look a little harder, the edges are serrated, or jagged, right up in here, which is-it's not a smooth round defect like you'd expect in a distant shot. Only a contact wound against a flat bone would create this sort of a situation.

Q. [STATE]: How would you describe the defendant's demeanor while y'all were doing the book-in process and removing his clothes?

A. [GIDDINGS]: Nice. He was not unhappy. He seemed to be nonchalant about the whole thing.

At times he would laugh; and during-during the book-in process, he-he would laugh and cut up and just seemed like everything was fine.

Q. At the time you were dealing with him, did he seem to express any remorse for what he had done?

A. None whatsoever.

Q. [STATE]: And were you assigned at some point to watch [appellant] while he was in jail?

A. [PERO]: Yes. In the interview room in the police station.

Q. And what were your duties regarding [appellant] that evening?

A. I was basically stationed outside of the interview room, and-which is off one of the hallways. I was instructed to make sure no person, officer or otherwise, had any conversations in that general vicinity so no one-so [appellant] couldn't hear what we were talking about; and also to watch over him, guard the room; and I also facilitated several of his requests he made to me; things such as a trip to the restroom, water, food. I think he may have requested a blanket, at one point.

Q. And did he ever make those-did he make those requests in English, or in Spanish?

A. In English.

Q. And at the time that he was requesting things from you, what was his demeanor?

A. He was very-the word I use to describe it is very amused with the situation he was in. On several occasions he chuckled or laughed; just-

Q. Did it seem unusual, given his circumstances?

A. Yes. I was surprised by his demeanor.

Q. At any point did he give you a hand gesture that is sometimes determined-deemed to be offensive?

A. On one of the times where I opened the door to the interview room to check on [appellant], he flipped me off and chuckled as I exited.

Q. And was-what events led up to that?

A. Simply that; simply me opening the door to check on him, as I did periodically. There was no words spoken, just the gesture and the chuckle.

Q. And did you respond?

A. I did not.

Q. During the time that you were dealing with [appellant] and interacting with him, did you ever see him express any remorse for the reason he was in there.

A. No.

Appellant did not preserve any error because he failed to properly object to this testimony. Point of error twenty-two is overruled.

In point of error twenty-three, appellant again complains that "the trial court erred in overruling appellant's objection to oral statements made by [appellant] while he was in custody." In point of error twenty-four, appellant complains that "the trial court erred when it permitted the State to present testimony of a confession by [appellant] to prior murders as a prior bad act, since the State failed to name the alleged victim of the crime, or indicate when or where it occurred, and left the defendant with too little time and information to respond."

The record reflects that, as appellant was being transported back to the court house from jail after a lunch break during the punishment hearing, appellant spontaneously told a county detention officer (Poindexter) that he had "killed three people in Oak Cliff." Appellant objected to the admission of this evidence on hearsay grounds. The State responded that it was a "party opponent admission" and not hearsay. The trial court overruled appellant's objection. Poindexter provided the following testimony before the jury.

Q. [STATE]: Now, on your way over back to the courtroom after lunch today, did you have a conversation with [appellant]?

A. [POINDEXTER]: Yes, ma'am.

Q. And what was the nature of that conversation?

A. I was asking him from where about in Argentina he was, as we were walking through the tunnel.

Q. And during the course of this conversation, did the-did [appellant] make any statements that alarmed you?

A. Yes, ma'am. He stated kind of in a-we were talking about Argentina, and then there was a pause, and out of nowhere he just kind of turned and looked at me and said, You know I killed three people in Oak Cliff.

In points of error twenty-five through forty-nine, appellant presents various challenges to the court's jury charge. In point of error twenty-five, appellant claims that "the trial court erred in failing to provide a rational process for the jury to determine life or death." In point of error twenty-six, appellant claims that "the trial court erred in failing to instruct the jury how to rationally resolve the tension between the requirement of an individualized sentencing procedure and the provision of a mechanism to deter others from committing similar crimes." In point of error twenty-seven, appellant claims that "the punishment charge as a whole is legally insufficient." In point of error twenty-eight, appellant claims that the "punishment charge as a whole is legally insufficient because it fails to provide a rational process to permit a discretionary grant of mercy based on mitigating circumstances." In point of error twenty-nine, appellant claims that "the punishment charge as a whole fails to provide a rational process to permit a discretionary grant of mercy based on mitigating circumstances." In point of error thirty, appellant claims that "the trial court erred in failing to instruct the jury that they may consider 'non-Penry' mitigating evidence to rebut, and raise a reasonable doubt about, the State's claim of future dangerousness, deliberation and reasonable expectation of death, as well as in consideration of [the mitigation special issue] on mitigating circumstances."

In point of error thirty-one, appellant claims that "the trial court erred in failing to instruct the jury that there is no presumption in favor of death." (Emphasis in original). In point of error thirty-two, appellant claims that "the trial court erred in failing to instruct the jury on the meaning of the phrase 'criminal acts of violence.'" In point of error thirty-three, appellant claims that "the trial court erred in failing to instruct the jury that 'continuing threat to society' does not mean 'any threat of harm or death, no matter how minor or remote." In point of error thirty-four, appellant claims that "the trial court erred in failing to submit a definitional instruction to the jury to define continuing threat to society so as to select only the 'worst of the worst' for the death penalty." In point of error thirty-five, appellant claims that "the punishment charge as a whole is legally insufficient."

In point of error thirty-six, appellant claims that "the trial court erred in failing to limit the jury's consideration of victim impact evidence." In point of error thirty-seven, appellant claims that "the trial court erred in failing to instruct the jury that victim character or impact evidence does not meet or relieve the State of its burden to prove the continuing threat issue beyond a reasonable doubt." In point of error thirty-eight, appellant claims that "the trial court erred in failing to instruct the jury that jurors are not to use the victim evidence to make any comparative worth analysis contrary to the holding in [citation omitted]."

In point of error forty-four, appellant claims that "the trial court erred in failing to inform the jury that if they do not unanimously agree on special issues one through two, that has the same dignity and respect as a 'yes' or 'no' answer and is the same in legal effect as a 'no' answer." In point of error forty-five, appellant claims that "the trial court erred in failing to inform the jury that a life sentence, not a mistrial, results from a failure to answer the special issues." In point of error forty-six, appellant claims that "the jury instruction which instructs the jury that 10 of them must agree in order to answer [the future-dangerousness special issue] with a 'no' answer which will result in a life sentence is a misrepresentation."

The record reflects that appellant made various objections to the court's charge. These objections seem consistent with the points of error raised on appeal. Appellant argues in his brief:

These [trial] objections were made to either bring about a reality of truth in jury charges, especially in death cases, or to implement recommendations of the American Bar Association's position as published by its Section of Individual Rights and Responsibilities "Death Without Justice: A Guideline for Examining the Administration of the Death Penalty in the United States," published June, 2001 and included in the publication of the State Bar of Texas "Capital Punishment: A Review of Recent Developments and Their Implications," February 8, 2006.

In points of error fifty through sixty-six, appellant raises various constitutional challenges to Texas' death penalty statutes. In point of error fifty, appellant claims that various Texas capital murder statutory provisions were improperly applied to appellant "because the State of Texas has not developed appropriate ways to enforce the constitutional restriction against execution of mentally retarded offenders upon its execution of death sentences." In point of error fifty-one, appellant claims that "the statute under which [he] was sentenced to death is unconstitutional in violation of the cruel and unusual punishment prohibition of the Eighth Amendment because it allows the jury too much discretion to determine who should live and who should die and because it lacks the minimal standards and guidance necessary for the jury to avoid the arbitrary and capricious imposition of the death penalty."

In point of error fifty-two, appellant claims that "the statute under which [he] was sentenced to death" violates the Eighth Amendment "because the mitigation special issue sends mixed signals to the jury thereby rendering any verdict reached in response to that special issue intolerable and unreliable." In point of error fifty-three, appellant claims that "the statute under which [he] was sentenced to death" violates the due process "because it implicitly puts the burden of proving the mitigation special issue on appellant rather than requiring a jury finding against appellant on that issue under the beyond a reasonable doubt standard."

In point of error fifty-four, appellant claims that "the trial court erred in denying appellant's motion to hold Article 37.071 Sec. 2(E) and (F) concerning burden of proof unconstitutional as a violation of Article One Sec. 10 and Sec. 13 of the Texas Constitution." In point of error fifty-five, appellant claims that the "Texas death penalty scheme violates due process protections of the United States Constitution because the punishment special issue related to mitigation fails to require the State to prove the absence of sufficient mitigating circumstances beyond a reasonable doubt, contrary to [Apprendi v. New Jersey, 530 U.S. 466 (2000)] and its progeny."

In point of error fifty-six, appellant claims that the "Texas death penalty scheme violated appellant's rights against cruel and unusual punishment and due process of law under the Eighth and Fourteenth Amendments to the United States Constitution by requiring as least ten 'no' votes for the jury to return a negative answer to the punishment special issues." In point of error fifty-seven, appellant claims that the "Texas death penalty scheme violated appellant's rights against cruel and unusual punishment, an impartial jury and to due process of law under the Sixth, Eighth and Fourteenth Amendments of the United States Constitution because of vague, undefined terms in the jury instructions at the punishment phase of the trial that effectively determine the difference between a life sentence and the imposition of the death penalty."

In point of error fifty-eight, appellant claims that the "Texas death penalty scheme denied appellant due process of law, and imposed cruel and unusual punishment in violation of the Fifth, Eighth and Fourteenth Amendments of the United States Constitution 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 the imposition of the death penalty." In point of error fifty-nine, appellant also claims that this also "denied [him] due course of law, and imposed cruel and unusual punishment, in violation of Article I, �� 13 and 19, of the Texas Constitution."

In point of error sixty, appellant claims that "the trial court erred in overruling appellant's motion to hold Art. 37.071 Sec. 2(e) and (f) unconstitutional because said statute fails to require the issue of mitigation be considered by the jury." In point of error sixty-one, appellant claims that the mitigation special issue is "unconstitutional because it fails to place the burden of proof on the State regarding aggravating evidence."

In point of error sixty-two, appellant claims that the mitigation special issue is "unconstitutional under the Eighth and Fourteenth Amendments to the United States Constitution because it permits the very type of open-ended discretion condemned by the United States Supreme Court in [Furman v. Georgia, 408 U.S. 238 (1972)]." In point of error sixty-three, appellant claims that "Texas' statutory capital sentencing scheme is unconstitutional under the Eighth and Fourteenth Amendments because it does not permit meaningful appellate review."

In point of error sixty-four, appellant claims that the "trial court erred in overruling appellant's second motion to set aside the indictment as being unconstitutional based on the enumerated constitutional defects of the Texas capital murder death penalty law." In point of error sixty-five, appellant claims that the "cumulative effect of the above-enumerated constitutional violations denied appellant due process of law in violation of the Fifth and Fourteenth Amendments of the United States Constitution." In point of error sixty-six, appellant claims that this also denied him "due course of law under Article I, � 19, of the Texas Constitution."

In his brief, appellant asserts that:

[These] Constitutional Issues have been previously submitted to this Honorable Court; which previously has turned them down. Appellant submits these issues in this case not to cause unnecessary litigation but to invite this Court to review any prior stand on any issue and more importantly to preserve each issue for further review in the Federal Court system, which has final constitutional power of review.

The judgment of the trial court is affirmed.

Hervey, J.

Delivered: June 6, 2007

Publish

*****

1. See generally Saldano v. State, 70 S.W.3d 873 (Tex.Cr.App. 2002); Saldano v. Dretke, 363 F.3d 545 (5^th Cir. 2004).

2. Appellant's death-row misconduct includes assaulting and threatening to kill guards, throwing urine and feces at guards, and setting fires. A death-row guard testified that appellant's death-row misconduct was a "daily thing."

3. See Lagrone v. State, 942 S.W.2d 602, 609-612 (Tex.Cr.App. 1997) (defendant's presentation of psychiatric testimony on future-dangerousness is a "limited" waiver of Fifth Amendment rights entitling State to compel defendant to an examination by State's psychiatric expert for rebuttal purposes "provided, however, that the rebuttal testimony is limited to the issues raised by the defense expert") (emphasis supplied); Bradford v. State, 873 S.W.2d 15, 24-27 (Tex.Cr.App. 1993) (Campbell, J., dissenting) (same).

4. Point of error three states:

The trial court committed constitutional error by effectively barring mitigation testimony when it held that if [appellant] permitted a Lagrone examination by the State in order to present its expert testimony on mitigation the State could use its examination to present testimony on issues besides mitigation.

5. The record reflects that individual voir dire began on October 4, 2004. Appellant filed the written motion on October 21, 2004. The hearing on this written motion occurred on November 5, 2004. Individual voir dire also concluded on November 5, 2004. The punishment hearing commenced on November 10, 2004.

6. Appellant's October 21, 2004, motion was entitled:

Motion That The Court Rule: A) That Texas Code Crim. Proc. Art. 37.071 � 2(b)(1) Is Unconstitutionally Vague; B) That Texas Code Crim. Proc. Art. 37.071� 2(b)(1) May Not Be Constitutionally Applied Under The Facts Of The Present Case; And Alternatively, Should The Statute Not Be Held Unconstitutional; C) In Limine To Exclude All Evidence Of [Appellant's] Conduct Subsequent To His First Trial In July 1996[.]

7. The procedurally defaulted claim of prosecutorial misconduct at appellant's 1996 trial involved a state expert's use of race as one of several factors upon which this expert concluded that appellant is dangerous. This claim was procedurally defaulted because appellant did not object to this testimony thereby not providing the trial court or the State with an opportunity to correct the problem and remove the basis of objection. See Posey v. State, 966 S.W.2d 57, 62 (Tex.Cr.App. 1998).

8. Appellant attached to his written motion Peccora's affidavit detailing appellant's alleged mental decline on death row.

9. Appellant's new written motion was entitled:

Motion That The Court Rule On All Aspects Of Defendant's Motion Of October 21, 2004 After Ordering Examination Of The Defendant Solely For The Purpose Of The Motion, And That The Court Order That The Hearing On The Motion Take Place Either At A Time That Takes Into Account [Peccora's] Personal Needs Or Post-Trial[.]

10. See Luce, 469 U.S. at 40 n.2 (using term "in limine" to "refer to any motion, whether made before or during trial, to exclude anticipated prejudicial evidence before the evidence is actually offered").

11. The State also claims that it "could be argued" that appellant did not preserve error "because he did not call [Peccora] to testify and then object to the State's attempts to introduce its psychiatric expert."

12. Applying these principles to cases like this would also discourage a defendant from pursuing a strategy of "planting" reversible error in the record based on, for example, a ruling not to limit a Lagrone examination to rebutting the testimony of a defense expert whose testimony the defendant never even intended to present to the jury. See also Luce, 469 U.S. at 42 (requiring defendant to testify in order to preserve claim that prior conviction could not be used for impeachment "will enable the reviewing court to determine the impact any erroneous impeachment may have had in light of the record as a whole; it will also tend to discourage making such motions solely to 'plant' reversible error in the event of conviction").

13. For example, appellant requests this Court to reverse his death sentence based on speculation that he actually would have presented Peccora's testimony and that a Lagrone examination would have resulted in the presentation of evidence unfavorable to him on the future-dangerousness special issue. It is also possible to speculate that a Lagrone examination might have revealed that appellant's misconduct on death row is due to appellant being a dangerous sociopath and not to any mental decline. It is possible to further speculate that this would have been relevant to rebut Peccora's testimony (if appellant had decided to present it) about appellant's mental decline while also showing appellant's future dangerousness. It is possible to even further speculate that the possible admission of this evidence under these circumstances would probably have been harmless depending on what else that we may speculate would have unfolded at appellant's trial. Of course, all of this is "wholly speculative." See Luce, 469 U.S. at 41.

14. The defendant in Lagrone also submitted to an examination by a state psychiatrist before complaining on appeal that he was required to do so. See Lagrone, 942 S.W.2d at 609-10.

15. The record also reflects that appellant used a peremptory challenge to remove veniremember Clampit after the trial court denied appellant's challenge for cause to Clampit. Appellant does not claim on appeal that the trial court erroneously denied his challenge for cause to Clampit.

16. See Long v. State 823 S.W.2d 259, 265 (Tex.Cr.App. 1991) (accepting a juror "under protest" arguably made her an "objectionable juror").

17. In his brief, appellant asserts that Garfield's "inclusion on the jury was a violation of Article 37.071, of the Tex. Code Crim. Proc.," which, according to appellant, "mandates that mitigation be considered in death penalty cases." There is case law stating that a conviction should be reversed "when the accused challenged a venireman for cause on the basis that he could not be a fair and impartial juror, the challenge was [erroneously] denied" and the venireman sat on the jury "because the accused had no remaining peremptory challenges to prevent it." See Delrio v. State, 840 S.W.2d 443, 445 n. 3 (Tex.Cr.App. 1992); Johnson v. State, 43 S.W.3d 1, 12-14 (Tex.Cr.App. 2001) (Hervey, J., dissenting).

18. This portion of the voir dire record seems to indicate that Garfield might have drawn some adverse inference from appellant's failure to testify. Shortly thereafter, Garfield stated that "the defendant not testifying would not play-would not play a role" in his decision.

19. In his brief, appellant claims that the trial court erroneously admitted State's Exhibits 50-52 and 54-60. The record, however, reflects that appellant did not object to the admission of State's Exhibit 60. In addition, appellant did not include State's Exhibits 50-52 as part of the record on appeal. These exhibits are, however, adequately described in the record and in the parties' briefs.

20. Among other things, the State claimed:

We're at the punishment phase. This jury didn't hear the guilt-innocence. We're establishing cause of death; we're also establishing the defendant is a future danger in that he wanted to make sure that this defendant [sic] was dead by shooting him five times, as well as the contact wound to the head, and this is best illustrated by showing these pictures to the jury.

21. See Ramirez v. State, 815 S.W.2d 636, 647 (Tex.Cr.App. 1991) (photographs generally admissible if verbal testimony of matters depicted in them is also admissible).

22. See Lane v. State, 933 S.W.2d 504, 507 (Tex.Cr.App. 1996) (opinion of police, derived from their observations of a defendant, about that defendant's character and likelihood of future violence, is some evidence of future-dangerousness).

23. See also Garcia v. State, 126 S.W.3d 921, 924-25 (Tex.Cr.App. 2004) (prosecutorial comment concerning defendant's lack of remorse supported by police observations of in-custody defendant as "cocky" and as "very nonchalant, very laid back and calm . . . There were several things that had a tone of arrogance to it").

24. The record actually reflects that, during a hearing outside the jury's presence, appellant's counsel stated that he had "no legal valid objection" to Pero's testimony. Appellant's counsel later confirmed this when Pero was about to testify before the jury.

[THE COURT]: Because I think I'm going to admit Pero's testimony. You had no objection to it.

[THE DEFENSE]: Well, not a legally valid objection. I object to it just because I think it's-it's-I don't like any prejudicial evidence introduced against the defendant.

[THE COURT]: I certainly don't disagree with you on that.

[STATE]: I'm sorry. I didn't hear anything. What?