Inmate smiles before lethal injection

By Stewart Smith - Huntsville Item

November 9, 2006

Willie Shannon was smiling as he lay on the gurney preparing for his death by lethal injection, but asked the family of Benjamin Garza not to take offense. “It is not from my happiness,” Shannon said. “Don’t take my smile for disrespect. If I see your father I will ask his forgiveness.”

Shannon was convicted for the 1992 murder of Garza during a car jacking gone wrong. Garza was waiting for his wife and children in his car outside a shopping center in southwest Houston when Shannon approached him. After briefly struggling with Garza, Shannon shot him in the head, kicked him out of the car and drove off. He was arrested in Beaumont hours later.

Even in his final statement, Shannon insisted he had no intention of killing Garza. “It took a father from his family. It wasn’t my fault, it was an accident,” Shannon said. “God knows the truth. If I see your father I will ask for his forgiveness. I told the judge the truth, it was an accident. I’ll smile and am not sad. If my life could make you happy, be free.” Shannon gave one final send off to his mother, saying he had no anger or fear and he would see her soon. Several of his friends were present at the execution, hands pressed against the viewing glass, offering quiet prayers, softly repeating the words, “thank you, Jesus.” All four had white, silk flowers tied to their wrists with a white ribbon. Ten minutes later at 6:24 p.m, he was pronounced dead.

Shannon has said his gun went off as the two men struggled in a parking lot when the Lubbock man refused to surrender his station wagon. Shannon was the 24th Texas prisoner executed this year in the nation’s most active capital punishment state.

The Supreme Court on Wednesday afternoon turned down a request from Shannon’s lawyers to stay the execution.

Garza, 38, was trying to catch a catnap in a parking lot while his wife and three kids were shopping nearby for some shoes when Shannon jumped inside, pulled his gun and demanded the family’s 15-year-old Ford wagon. Shannon fired three shots, one of them striking Garza in the head. He kicked his victim out of the station wagon and to the parking lot pavement, then sped away, driving over Garza’s hand as he fled.

Shannon wrecked the car hours later in Chambers County, about 50 miles east of Houston. And when a sheriff’s deputy approached Shannon to ask him about the accident, he ran off into some nearby woods. He was arrested about five hours after the shooting at a truck stop in Beaumont, 30 miles to the east, when a security guard spotted a man with a pistol in his pants looking for rides and notified police. Shannon tried to run away again, but was captured after a brief chase.

One more execution is scheduled for this year in Texas. If Charles Nealy is put to death next week, Texas will wind up the year with 25 executions, up three from last year but about average for the past decade. A record 40 Texas prisoners were executed in 2000. At least five inmates already have execution dates in January.

ProDeathPenalty.com

In November 1993, Shannon was convicted and sentenced to death for the carjacking and murder of Benjamin Garza. Benjamin was a witness enrolled in the federal witness protection program and was visiting Houston with his wife and children at the time of the murder. Garza was killed on July 19 in 1992. He had just dropped his family off at a shoe store.

An 11-year-old boy who was the key witness to the murder, testified that Benjamin was sitting alone in his car, waiting for his family to return and Willie Shannon climbed into the passenger seat. The boy heard Shannon say to Benjamin, "Get out of the car." Shannon told jurors that he showed a 9 mm pistol to Benjamin and placed it on the dashboard.

The boy testified that Benjamin got out of the car, but then the men scuffled and three shots were fired, one striking Benjamin in the head. Shannon took off but abandoned the station wagon in a nearby county after wrecking. Police began searching for Shannon and he was arrested five hours later at a truck stop.

Prosecutor Vic Wisner said Shannon had raped a motel maid in Houston shortly before he killed Benjamin Garza. Testimony at trial showed that Shannon also had a previous jail sentence for breaking a man's jaw and had also been confined as a juvenile for burglary. The prosecutor told jurors Shannon was a sociopath who would be certain to commit more violent crimes if he ever goes free. The jury agreed and sentenced Shannon to death.

By David Carson. Posted on 9 November 2006.
Sources: Texas Department of Criminal Justice, Texas Attorney General's office, Houston Chronicle, Huntsville Item.

Democracyinaction.org

Willie Shannon, November 8, 2006, TX
Do Not Execute Willie Shannon!

In November 1993, Willie Shannon, a 20-year-old black man, was sentenced to death for the July 19, 1992 murder of Benjamin Garza. According to the key witness, an 11-year-old boy, Garza was sitting in a station wagon when Shannon approached him. Shannon demanded the car, and the two began arguing. Three shots were fired, one of which hit Garza in the head, killing him.

Shannon maintains that he did not intend to kill Garza. When they began fighting, the gun accidentally went off. This is consistent with the testimony of the witness, who also said the gun went off, instead of implicating that Shannon shot Garza. Furthermore, Shannon’s counsel proved ineffective counsel more than once in the court proceedings. One lawyer gave him no forewarning that he was dropping the case, while his trial lawyers called no witnesses to Shannon’s defense, even though the prosecutors included an extraneous rape accusation in their case against him. Neither lawyer filed motions that would have qualified Shannon for a lesser sentence.

Although Shannon was present for the death of Benjamin Garza, he did not intend to kill him. Furthermore, his ineffective court appointed lawyers failed him on several levels. Thus, this case proves that the death penalty is given to those who cannot afford a private lawyer. Had Shannon’s counsel defended him or petitioned the courts for a lesser sentence, he would not be on death row today.

Please send appeals to Gov. Rick Perry on behalf of Willie Shannon!

CCADP.org

Willie Shannon
Texas Death Row

"Shane's World!"
Coming Soon - Letter From Willie, May 2000

May God Bless those who read those words and take heed, what goes on in the mind of one of Texas Death Row inmates. Many men and women don't even know what goes on here !

There can be no more shocking news that we are even here, we have been in the news so much, talk of moving us to a new unit, from the old Ellis Unit in Huntsville, Texas. The talk forced the states hand even though the Terrell Unit here in Livingston, Texas was not, and still after 2 months of housing 55 of Texas Death Row, are not readay to handle the demands of medical, rec, and most important, mailing needs. They are constantly breaking the law. But since many that they moved here, can't read, write, or have the mental stability to complain about whats going on, they just have us locked away. This new unit is something new to many of us that have never lived a long period of time in a solitary confinement cell. These cells were meant to house inmates that will not follow the rules, and are constant threats to other inmates and gaurds, and also then they could only hold inmates for a certain amount of months. Not years, as they have planned to do with us. Many inmates will lose their wits. They will become insane, when many here are already close to that thin line between sane and insane. I myself have been very close to losing it all. When I am on that have had the support of a loving mother , grandmother, and a loving best friend who is more a second mother to me. Another best friend that I can tell all that bothers me, when I am scared, fear being killed in this place. So you see if I have all this and still fall close to becoming one of the men thats driving insane, what about those that only have themselves?

I didn't want to complain about the way I am being treated here on death row. This web page was not started for me to cry about something I helped create. Meaning, I'm no angel, I'm no sweet little boy that didn't know the lifestyle that I was leading would lead me to no where but to prison , and then to hell ! Once again, I'm not the one that grew up without a family, I was raised by my mother and grandmother to fear God, and what was right or wrong. Albeit my father was not there living in the house with my family, as far as I can remember, I've known him all my life but he was not the father he should have been nor I the son I could have been. So I'm not one that can blame my upbringing, I didn't really crossed the line of no return until I started taking care of myself after school, and after I was on my own so I blame myself, no one but myself, for who I became ! I have lived on deathrow for 5 1/2 years, the things I've seen and heard, makes my upbringing look like I was one of royal blood. But the things that hurt the most is that 85% of Texas Death Row were still kids when they came to live in this place where the demons torture the insane, all day, and the sane lay in bed trying to cover their ears.

Yes 18 - 25 is the average age America's young come here to live and die. Now since I've been here they come in at 17 now, die before they're 25. Never had a chance at life. They grow out of that rebelling period of their life behind bars, just as many of you grew out of the 60s radical age ! But you guys had a chance to make a change. Thats not to say of us who came here as children, and grew into adult. I'd not say men, because we have never had the responsibility that makes boys grow into men. Some of us might have fathered children, but we have not had the chance to raise or provide for them. Responsibility makes men. I've got off fairly easy, with only 2 hour talks and short letters to my daughter, but there is a day coming I'll have to sit and tell her why her father is not coming home. This will be hard but I'll do it, because its my responsibility to do so. She'll be seven, in about a month. Kids now days grow a lot faster and are a lot smarter.

My main reason for wanting this chance to speak out to the world is because there is always more than one side of the story. Most of the time the media, will not tell the truth, they sell entertainment. Whatever is the hot political point at the moment. With me, they didn't have many bad things to say about me, I didn't have a long criminal record. Albeit, I have confessed to many sins, but on the books no I have a very short record.

Two arrests as an adult, 3 as a child. All three of my arrests as a kid, I was never caught doing anything. But at that time of your life adults run everything, you have no control. So whatever is said about you is taken as the truth. Now I'm not saying that I didn't steal as I was accused of doing because I did. But nothing of real value. Never caught, never went to trial, be albeit convicted because an adult said another kid told them I did it. Sentenced to probation, now I have more adults controlling my life, people who didn't care what I did, as long as it was not to them and their kind. They didn't try to help me see what was wrong, it was visit me once a month, pay me 20 bucks once a month. Thats it. Thats all was given to me as advice. Then I was 13. I would go through 3 years of probation. Get sentenced to state school at 16, for heresay, again no trial, no conviction. Sent away to kid prison, when I was doing quite well. I wasn't in school but I had a job and I worked 16 to 18 hours daily at a fast food place, but it made me proud. I was doing quite well. Then my past caught me, twisted me, and just because I did a crime once they say I did it again. Once a thief always a thief, so I was brough to court and simply told, or asked, "What did I tell you, the last time you came before me?" It didn't matter that I was 13 the last time I was in front of this judge, but I remembered well what he said.

"THE NEXT TIME YOU COME BEFORE ME, NO MATTER WHAT FOR, I'M SENDING YOU OFF!" That was all said by me or my lawyer. The principal of the school got on the stand said I hadn't been going, a probation officer, whom I had only seen one time because she had just gotten the job. After she read off what other kids had told her what I suppose to have told them to do. In which I didn't. I was sentenced. No crime, trial, just convicted.

This was the turning point of my life. Got my GED, worked while I was there, positive role model for other kids there. Got out early. Armed with GED, movef to Houston, got job, apt., doing just fine, 9 months later walking back from store stopped by cops. On my 18th birthday arrested for assault. Held for three months, lawyer kept trying to get me to plead guilty, and take probation and go to boot camp. I told him no, set it for trial, and get me a bond. Then he told me that if I was to go to trial, it would be after the new years. That would be six months. He knew I didn't beat this guy up. I was faced with going to trial, losing my job, my sister needed me at home, to help with her twins so I was willing to cut a deal. Next time I went to court, my lawyer told me that the DA is willing to deal. Of course I knew she would because I was innocent ! Lawyer came back with probation and boot camp again. I'd be free in 90 days after I completed boot camp. But then I would have to be on probation and probation is one foot from being in prison. No I was not going to be on probation. I changed my mind and said no deal. Soon as I said that, he had a talk with DA and she was offering now 6 months county time, which is 2 for 1 days and back time plus reduced to a non felony and clear record. I'd be free in 3 months, out or Xmas and no record. Whats 3 months out of my life. So I took the deal. But guess what I didn't know. The guy was not pressing charges. Had not been coming to court, couldn't and wouldn't testify that it was me. So I was not supposed to even been here. I was being held illegally. All these things I found out after I was charged, 7 months after my release from the county jail. This man came to court to testify against me for the state. But oh was they shocked when he said on the stand "that he can not, could not, tell the court that I was one of the men that beat him up", now new news, it was supposed to be more people with me when I suppose to have beat him up. Lawyer nor DA told me this. Of course he was not a good witness for the state so he was off the stand quick. By capital murder standards, I should not have been a candidate for the death penalty. No violent past, no adult criminal record, and last but most importantly death in this case was accidental ! ! !

There is strong evidence to show that it was not on purpose why this man was killed. once witness to this crime, the only reliable witness to the crime, said, "He walked up to car, told man to get out, man got out, I got in. Man reaches in punch me, we fight over gun. Gun goes off ! " No different from my testimony. Almost word for word. Now once again I'll say the Law is good, man is what perverts the law ! By Law I didn't commit capital murder. His death didn't happen, before I took possession of the car. I didn't kill him to get away ! There is evidence that his death was provoked by himself, but a lawyer terms, voluntary conduct ! Victim grab gun, hit gun, anything to make gun go off. If the lawyers that I had was to file the motion for to have the clause invoked in my trial, 90% chance I don't come to death row. I'm not telling you all this information to take blame away from myself. No, I will never do that. I committed a Robbery ! I might be guilty of manslaughter ! But I'm not a killer, never have been, never will be. One more thing that hurts my chances, is that the CCA denied my direct appeal, in it there was a mention of voluntary conduct. Same as at my trial. I didn't know of the law and clause then. It was only brought to my attention by my third lawyer. Why was this so, all the evidence was there, for my trial. Direct appeal ! But judge didn't follow law. DA didn't follow law ! My lawyers didn't care what happened to me. Just for a little facts, all of my lawyers clients have come to death row. Never have gotten life sentence or freedom. That should tell you they don't learn from mistakes, or don't care ! I talk to some of the old clients of these lawyers, and they say the same thing I say. Lawyers didn't try.

The U.S.A is suppose to be about truth, justice, fairness, but I learned with my years in the system that is not so. They tell us minority, the true majority. That we have rights and are backed by the Constitution, but how is it that when it, the Constitution was written by slave owners for slave owners ! What right do a descendant of a slave have to these rights. Do you think they had me in mind when they sat down and wrote it ? What do you think they had in mind, a jury of your peers ? Same race, social class, right. I was tried by 11 whites, and one black. Do you think those 11 whites came from a poor home ? Of course we see they are not minority. So I say again, I don't think I have rights. They have been violated many of times, and I'm being killed here by the state out of revenge, they'll be violated again. I have one thing going for me. I fear God, love God, and have FAITH in God. All that judged me shall be judged themselves ! I'm content with my life on the Row, I'm readay, God take me away from this place where demons torment men, women tease, leaders mislead, children are killed. I'm a child, my life is in your hands Dear Father, receive my soul ! God Bless all that gave me their time, Remember don't be quick to judge others, because you'll be judge also. I fear not, what man can do to the flesh, but what God can do with my soul.

PENPAL REQUEST

A friend is one whos on your side/someone in whom you can confide/someone who consoles you when you're sad/and turn depressing days to glad/A friend is there through thick and thin/caring concerned and genuine/A special someone with the gift, to give your heavy heart a lift/When you're down and in despair/a faithful friend is always there./they don't scold or reprimand,/and always understand./So if you have but one friend, to be there for you to the end /Thank the Lord, and say a prayer, /because you're richer than a MILLIONAIRE! Hi! My name is Willie Shannon, I'm currently on death row here in the state of Texas. I have been here for a total of five years, I have been incarcerated for almost seven years including before my trial.I am a African American, I am 25 years old, I was born in Houston Texas. I stand 6 ft tall and weigh 195 pounds.

I was born on June, 12 1973. I have brown eyes and brown hair. I am also a high school drop out, but I obtained my GED the same year I dropped out. Some of my hobbies are reading, studying world history, psychology, mainly human behaivor but I have an open mind. I have taken it upon myself to understand my problem, and whatlead me to death row. I know I made that sound bad, but I don't have a sexual problem, I am not a rapist or molestor. I started this missive with a poem on friendship, I did for a reason, I have never known friendship, and this what I have been told over the years and in books that I read. I would like this experience, with someone mainly a woman, but a males friendship would do as well, because I myself as a man seeks compainonship from a brother as well. I am seeking a mature person, meaning someone in between the ages of 21-45. Someone older would do, but this is what I prefer. One reason is that my situation is not an easy one to be in, and not everyonecan handle it. I would not like to bring upon someone the pain of knowing and befirending one that is on the row. I know many couldn't understand that. But also it would be understood that one in my position needs a shoulder to lean on, some one to talk to someone I can share my past as well as my predictable future with. Last but not least, I honestly believe that a relation of this nature could be fascinating the fascinating part of commencing with a friendship that is unknown, and have been illusive to me] with a friendshipcorrespondance is, the tnknown becomes the known an also often the known becomes that which we also love. I know that it's not always possible to say exacty what one wants or what one expects because of the unknown factors. So whom ever recieves this, please know that I will see all in this regard. FRIENDSHIP IS A PROMISEFriendship is a promise spoken only by the heart./It isn't given by any pledge./It isn't written on any paper. But friendship is a promise that is renewed every time two friends meet and smile (in my case I guess read a letter) / and enjoy the good times that comes from simply being together. /It's a promise to share both glad and sad times/A promise to think of each other fondly whether near or far apart. Written by Dean Walley I hope this missive, can bring me closer to knowing this friendship, like many have explained it to be. sincerely seeking a friend,

. . . Willie Shannon # 999086
12 - FF - 71
Polunsky Unit
12002 FM 350 South
Livingston, TX 77351

Willie Shannon Support Group

Dear Friends and Prospective Supporters!

Our thoughts and prayers go out to all victims and their families. We pray that all of you will be blessed with faith, strength, health, and success, in all that you do.

The Willie M. Shannon Support Group was founded in December of 2001 to assist our friend Willie Shannon, TDCJ # 999086, who has spent the last 9 years on Texas' Death Row, for an offense that we believe should never have been tried as a capital case. We realize that everyone does not share our opinion in this matter. However, we have gathered sufficient information about this case to believe in our cause.

We are convinced that Mr. Shannon, like other offenders, did not receive a fair trial or appropriate legal counsel from the beginning, which eliminated his chances of being charged with a lesser crime. Nevertheless, we remain a positive outlook and do what we can to make sure that: Mr. Shannon can purchase items such as stationary and stamps, to write letters.

Our goal is to raise a minimum of $10,000 to help contribute to Mr. Shannon's defense. We thank you in advance for your generous support and again, may God bless you. Please feel free to contact the group for any reason.

Message From Willie:

14 cell! I say 14 cell! Johnny, are you going to eat?

I roll over, look at the clock, it's 2:45 a.m. I get up and turn on my light, step over to the door. "Inmate! Step back and sit on your bunk!" I stand for about 10 seconds, looking at these two guards who have big smiles on their faces, like they just won the lottery.

A snarl comes to my lips and I attempt to hold it back, but it's there and they have already seen it. I turn and walk away from the door, and sit on my bunk. The food slot is now opened, and a sack breakfast is shoved in the slot. It is then, and only then, that the guard says "COME AND GET IT!" The snarl is back, and as I step the three strides to the door the guards step back and look at me, waiting on the comment they know is coming once I look in the sack.

I say nothing. I turn and walk back to my bunk and sit, and look into the sack only after looking up to make sure the guards are gone through the door. 1 boiled egg, 1 milk, 1 bag of raisins, 1 old peanut butter sandwich that has a quarter-sized dab of peanut butter syrup in the middle of the bread that is a few hours from being too old.

I start to laugh. At first it's just a little chuckle which eventually turns into a roar from the animal that they wish me to be. After it passes, I then prepare to eat my breakfast. I throw the sandwich at the door, open the egg, eat the raisins, and drink the milk. Then I ask myself, what else is there to eat? I look into my property box and see a few things which cause me to laugh again, but this time it is a human laugh - one of a free mind, a spirit in control, a brother who has just seen his little brother do something stupid, attempting to be him.

A father reading his first letter from his only child! A man who has fought his own demons; searched, analyzed why he is here, and who he has become. There is one thing I am very sure of: The crime I committed was not just heinous, it was senseless! But as my best friend said - who is no longer here - I AM!

Shannon v. State, 942 S.W.2d 591 (Tex.Cr.App. 1996) (Direct Appeal).

Defendant was convicted in the District Court, Harris County, Ted Poe, J., of capital murder and was sentenced to death. Defendant appealed. The Court of Criminal Appeals, Meyers, J., held that: (1) trial court properly refused to instruct on length of defendant's ineligibility for parole if sentenced to life imprisonment; (2) prosecutor did not open door during voir dire to discussion of specifics of parole eligibility; (3) statutory definition of mitigating evidence is constitutional; (4) prosecutor's closing argument that defendant was sociopath did not require reversal; (5) statute requiring instruction to consider whether sufficient mitigating circumstances exist to warrant life imprisonment is constitutional; and (6) capital murder scheme is not cruel and unusual punishment. Affirmed. McCormick, P.J., concurred in result. Baird, J., joined only in judgment and filed statement. Clinton, J., dissented. Overstreet, J., dissented and filed opinion.

MEYERS, Justice.

Appellant, Willie Marcel Shannon, was convicted of capital murder in November, 1993.FN1 Tex. Penal Code Ann. § 19.03(a)(2). During the punishment phase, the jury affirmatively answered the special issue set forth in Texas Code of Criminal Procedure art. 37.071 § 2(b) and negatively answered the special issue set forth in Article 37.071 § 2(e). The trial judge sentenced appellant to death as required by Texas Code of Criminal Procedure art. 37.071 § 2(g). Direct appeal is automatic. Tex. Code Crim. Proc. Ann. art. 37.071 § 2(h). We will affirm. FN1. The crime was committed in July, 1992.

Appellant raises sixteen points of error, but does not challenge the sufficiency of the evidence at either stage of trial. Therefore, we shall dispense with a recitation of the facts. We will address the points of error in the order they are presented.

In points one through four, appellant complains that the trial court erred in refusing to instruct the jury that appellant would be “parole ineligible” until he had served thirty-five (35) calendar years in prison if sentenced to “life” imprisonment. He alleges that this was in violation of the due process clause of the Fourteenth Amendment; the Eighth Amendment; the due course of law provision under Article I, § 19 of the Texas Constitution; and Article I, § 13 of the Texas Constitution. Appellant relies primarily on Simmons v. South Carolina, 512 U.S. 154, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994), as his authority. In Smith v. State, 898 S.W.2d 838 (Tex.Crim.App.1995)(plurality opinion), cert. denied, 516 U.S. 843, 116 S.Ct. 131, 133 L.Ed.2d 80 (1995), the same issues were presented to this Court. Pursuant to the presentation of those issues, we engaged in a comprehensive discussion of Simmons as it relates to the law in Texas.

We reiterated that parole is traditionally not a matter for jury consideration in a Texas capital murder trial. And, thus, it is not error for a trial court to refuse to admit testimony concerning parole. Jones v. State, 843 S.W.2d 487, 495 (Tex.Crim.App.1992), cert. denied 507 U.S. 1035, 113 S.Ct. 1858, 123 L.Ed.2d 479 (1993). Further, we “absolutely reject[ed]” the premise that Simmons has been extended to parole eligible defendants. Smith, 898 S.W.2d at 848. As such, we hold that the requested instruction which is the subject of these points was appropriately refused by the trial court. Smith, supra.

Appellant has given us no reason to revisit our analysis of Smith, nor has he shown us any distinguishing evidence in the record FN2 or provided us with any other reason why Smith should not control in this case. See Broxton v. State, 909 S.W.2d 912(Tex.Crim.App.1995). Points of error one through four are overruled. FN2. For example, appellant has pointed us to no place in the record where he presented evidence (or made an offer of proof if he were prevented from presenting evidence) of appellant's ability to live peaceably in prison or expert testimony relating to a probable decline in appellant's propensity for violence.

In related points five and six, appellant advances that the trial court erred in refusing to instruct potential jurors on the length of appellant's “parole ineligibility,” because “the prosecutor opened the door to that subject.” In point seven, appellant maintains that this failure to instruct potential jurors on the length of appellant's “parole ineligibility” prevented him from asking relevant questions which violated his rights under Article I, § 10 of the Texas Constitution.

Appellant notes that, throughout voir dire, the prosecutor informed venirepersons that a “life” sentence does not mean “life without parole.” However, his basic complaint seems to be that the judge should have elaborated on this. Specifically, in point of error five, appellant contends that the prosecutor “opened the door” to the subject of appellant's “parole ineligibility” when he said to venireperson A. Smith:

[THE STATE:] Why do you feel that the life imprisonment is more effective than the death penalty? [VENIREPERSON:] Well, hopefully, with that there can be some rehabilitation. [THE STATE:] What if there's not? [VENIREPERSON:] What if there's not? [THE STATE:] Yes. [VENIREPERSON:] Who's to say? I mean, just have to go on good faith. [THE STATE:] In the State of Texas we don't have life without parole. [VENIREPERSON:] Okay.

[THE STATE:] So, the two punishments someone can give in capital murder is life or death. If the person gets life, if it's not life without parole, obviously, there's an opportunity potentially somewhere down the line that person might commit another crime. My question was why you think that life imprisonment is more effective than capital punishment. This last statement then caused the venireperson to ask, “What is ··· the law as far as when someone can be released?” Appellant asked that the venireperson be instructed as to the law in that area and the trial court denied the request. In point six, appellant complains that the prosecutor again “opened the door” to the subject of appellant's “parole ineligibility” when questioning venireperson J. Ford.

[THE STATE:] So, before you get [to the punishment stage] you've had very horrible facts presented to you. You've made a decision someone intentionally killed someone with the specific intent to kill during the course of a robbery. Now you must determine the answer to those questions. Some people say, I am so upset with violence and the prospect that people who get out on early release, and we just have a revolving door-I think one of the jurors before you said, in a situation where they go in, they get out, they go in, they get out, that if I find someone intentionally killed someone with the specific intent to kill during the course of a robbery and I know if they get life imprisonment, there's a possibility that they may parole at some point in time, I don't have control over that, that I'm going to automatically give that person the death penalty or vote for the death penalty regardless of anything else. I've heard enough. Sometime later when appellant was questioning the venireperson, the following occurred:

[APPELLANT:] Would it help you to know, if it existed, that there was minimum amount of time that someone would have to serve before they would even become eligible for parole? [VENIREPERSON:] Yes. [APPELLANT:] Obviously, if it was a lengthy period of time and they were there and availed themselves of whatever educational processes were available, that could be a factor in rehabilitation? [VENIREPERSON:] Certainly it could be.

At this point, appellant requested that the judge give the venireperson an instruction concerning the minimum time a person would have to serve in prison, which request was denied. The juror was asked to step out into the hallway and appellant elaborated on his request, stating that:

Judge, at this time I am requesting that you give the juror an instruction that if a life sentence is returned in a capital murder such as this that the defendant would be required to serve 35 calendar years prior to becoming eligible, even becoming eligible, for consideration for parole. I'm asking that because in order to exercise an intelligent decision as to strike or accept this juror, I think it's imperative to know her feelings concerning that and whether or not it would affect her decision in assessing or answering these questions and in assessing either the death penalty or life in prison. The trial court denied the request.

For the reasons set out under points one through four, we hold that the trial judge did not abuse his discretion in failing to give the above requested instructions.FN3 Smith, supra and Broxton, supra. Furthermore, given that the subject of parole was frequently and freely alluded to by both parties throughout voir dire, we do not see that this “opens the door” to a discussion of the specifics of parole eligibility. Smith, supra. Points of error five and six are overruled. FN3. We also note that, at least on these two occasions, appellant never objected to the prosecutor's correct statement of the law that no life without parole exists in Texas.

Furthermore, the jury was instructed in the charge that: During your deliberations, you are not to consider or discuss any possible action of the Board of Pardons and Paroles Division of the Texas Department of Criminal Justice or of the Governor, or how long the Defendant would be required to serve to satisfy a sentence of life imprisonment. This is the same charge as was given in the Smith case.

Appellant's allegation in point seven is that he was prevented from asking relevant questions by the trial court's refusal to instruct veniremembers on appellant's “parole eligibility.” This Court stated in McCarter v. State, 837 S.W.2d 117, 121-22 (Tex.Crim.App.1992), that the trial court must not restrict proper questions of venirepersons on voir dire. We held that a question is proper if its purpose is to discover a juror's views on an issue applicable to the case. Since parole is not a proper area of inquiry in Texas capital cases, we hold that the judge did not abuse his discretion in denying questions pertaining to this topic. See Smith, supra. Also, because appellant never set out a specific question he wanted to ask, we cannot determine whether that particular question would have been proper. Caldwell v. State, 818 S.W.2d 790, 794 (Tex.Crim.App.1991), cert. denied, 503 U.S. 990, 112 S.Ct. 1684, 118 L.Ed.2d 399 (1992). Point of error seven is overruled.

Appellant avers in point eight that the trial court erred in allowing jurors to take individual notes during trial. After the jury was sworn, but prior to trial, the judge gave the following admonition to the jurors: [T]his Court will allow you to take your personal notes regarding this matter, but follow these instructions: If you wish to take notes, and you're not obligated to, those are your notes. Those are for your personal use only and not to be shared with anyone else.

At deliberations if you have a disagreement as to what may have actually been said by a witness, the official note keeper is the court reporter. What she takes down are the official records of this court. And under some circumstances testimony of witnesses may be read back to jurors. But, understand, if there is a disagreement about any testimony, the official court reporter takes down the official records of this court. But if you want to take notes for your own use, that is agreeable with the Court.

The trial court then asked if each side was ready to proceed with trial. On affirmative answers from both sides, the court had the indictment read, and entered appellant's plea. After the completion of the guilt/innocence phase of trial, the jury commenced deliberations. Shortly thereafter, the jury sent out a note asking for “notes & pencils.” Appellant alleges that the necessary implication of this request is that the jury's individual notes were utilized during deliberations. Appellant's point is without merit.

To begin, we hold that appellant did not make a timely objection at trial concerning the juror's note-taking. Thus, he has failed to preserve error on the point. Tex.R.App. Proc. 52(a). Further, even if the objection appellant made was timely, the record does not support appellant's contention. The record does not reveal whether any jurors took notes; whether they utilized those notes in their deliberations, if any were taken; what the jury meant by the phrase “notes & pencils” referred to in their note to the court; or how (or if) the court even ruled on this message. We refuse to speculate as to facts not included in the record and therefore hold that the judge did not abuse his discretion in allowing the jurors to take individual notes. Hubbard v. State, 892 S.W.2d 909, 910 (Tex.Crim.App.1995); Price v. State, 887 S.W.2d 949 (Tex.Crim.App.1994); Johnson v. State, 887 S.W.2d 957 (Tex.Crim.App.1994). Point of error eight is overruled.

Appellant challenges the constitutionality of Texas Code of Criminal Procedure Article 37.071 in point of error nine. Specifically, he contends that the “statutory definition of mitigating evidence” in Article 37.071 § 2(f)(4) “limits the jury's consideration to factors that render him less morally blameworthy and thereby narrows the jury's discretion in violation of the Eighth and Fourteenth Amendments to the United States Constitution.”

Article 37.071 § 2(f)(4) “defines” “mitigating evidence” to be “evidence that a juror might regard as reducing the defendant's moral blameworthiness.” (Emphasis added.) There is no evidence that must be viewed by a juror as being per se mitigating. Instead, jurors must individually determine what evidence, if any, mitigates against the imposition of the death penalty and what weight, if any, to give that evidence in its consideration. Article 37.071 § 2(e) yields further support to this interpretation in that it requires the court to instruct the jury to take into consideration “ all of the evidence, including the circumstances of the offense, the defendant's character and background, and the personal moral culpability of the defendant” (emphasis added) in determining whether sufficient mitigating circumstances exist to warrant a life sentence. Because the consideration and weighing of mitigating evidence is an open-ended, subjective determination engaged in by each individual juror, we conclude that Article 37.071 § 2(f)(4) does not unconstitutionally narrow the jury's discretion to factors concerning only moral blameworthiness as appellant alleges. See Colella v. State, 915 S.W.2d 834 (Tex.Crim.App.1995). Point of error nine is overruled.

In his tenth point of error, appellant advances that the trial court improperly denied his motion for mistrial at punishment arguments when the prosecutor injected his opinion that appellant is a sociopath. Specifically, appellant complains of the following occurrence as the prosecutor made his closing statement: You know, I had some things I planned on saying, but I don't know what else to say. I don't know how to respond to that argument that was made. That is a killer. That is a rapist. His past shows you he never expresses any remorse over what he's done, and he doesn't want to change. That is a sociopath. Appellant immediately objected that, “There was no evidence he was a sociopath from any witness.” The court responded, “Disregard that. Stay in the record.” Appellant then moved for a mistrial, which was denied.

To constitute proper jury argument, the argument must encompass one of the following: 1) summation of the evidence presented at trial, 2) reasonable deduction(s) drawn from that evidence, 3) answer(s) to the opposing counsel's argument, or 4) a plea for law enforcement. McFarland v. State, 845 S.W.2d 824, 840 (Tex.Crim.App.1992), cert. denied, 508 U.S. 963, 113 S.Ct. 2937, 124 L.Ed.2d 686 (1993); Gaddis v. State, 753 S.W.2d 396, 398 (Tex.Crim.App.1988).

This Court noted in Gaddis that counsel is allowed wide latitude in drawing inferences from the evidence so long as the inferences drawn are reasonable, fair, legitimate, and offered in good faith. Conversely, jury argument must be extreme or manifestly improper, or inject new and harmful facts into evidence to constitute reversible error. Gaddis, supra. Furthermore, in most cases, if error occurs, either a withdrawal of the question or an instruction to disregard will cure any error committed. Wilson v. State, 819 S.W.2d 662, 664 (Tex.App.-Corpus Christi 1991, rev. ref'd ).

Assuming that, in fact, there was no evidence in the record that appellant was a sociopath, then the prosecutor did inappropriately stray outside the record. However, we conclude from the context that the comment was not so egregious as to constitute reversible error. Appellant argues on appeal that whether or not someone is a sociopath and the behavior associated with that diagnosis is solely within the purview of an expert and “beyond the knowledge of the average layman.”

However, he also maintains that labeling someone a sociopath (apparently regardless of who applies the label-expert or layman) will necessarily influence a jury to find that the person so labeled is a future danger. Appellant substantiates this by string citing a number of cases where expert testimony has been presented injecting the term into evidence and where the jury has found that the defendant would be a future danger. We are not persuaded by appellant's contradictory argument. While we do agree that the comment in the instant case was improper, it was also isolated. We hold that the prompt instruction to disregard cured any error. Norris v. State, 902 S.W.2d 428, 443 (Tex.Crim.App.), cert. denied, 516 U.S. 890, 116 S.Ct. 237, 133 L.Ed.2d 165 (1995). Point of error ten is overruled.

Appellant again challenges the constitutionality of Texas Code of Criminal Procedure Article 37.071 in points of error eleven through sixteen. FN4 In points eleven, twelve, and thirteen, appellant alleges that Article 37.071 § 2(e) is unconstitutional under the Eighth and Fourteenth Amendments because it invites the open-ended discretion condemned by the United States Supreme Court in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972)(point eleven); because meaningful appellate review of the jury's answer to that issue is impossible (point twelve); and because the statute does not assign a burden of proof, burden of persuasion, or standard of proof to this issue (point thirteen). FN4. See point of error nine, supra.

Article 37.071 § 2(e) states: The court shall instruct the jury that if the jury returns an affirmative finding to each issue submitted under Subsection (b) of this article, it shall answer the following issue: Whether, taking into consideration all of the evidence, including the circumstances of the offense, the defendant's character and background, and the personal moral culpability of the defendant, there is a sufficient mitigating circumstance or circumstances to warrant that a sentence of life imprisonment rather than a death sentence be imposed. The section is a statutory codification of the dictates handed down by the United States Supreme Court in Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989). In Penry, the State argued that instructing the jury that it could render a discretionary grant of mercy based on mitigating evidence would be a return to the unbridled discretion that led to Furman. The Supreme Court responded to this with the following:

To be sure, Furman held that “in order to minimize the risk that the death penalty would be imposed on a capriciously selected group of offenders, the decision to impose it had to be guided by standards so that the sentencing authority would focus on the particularized circumstances of the crime and the defendant.” [Citation omitted.] But as we made clear in Gregg [ v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976) ], so long as the class of murderers subject to capital punishment is narrowed, there is no constitutional infirmity in a procedure that allows a jury to recommend mercy based on the mitigating evidence introduced by a defendant. [Emphasis added.] * * * * * * “In contrast to the carefully defined standards that must narrow a sentencer's discretion to impose the death sentence, the Constitution limits a State's ability to narrow a sentencer's discretion to consider relevant evidence that might cause it to decline to impose the death sentence.” [Citation omitted. Emphasis in original.]

Indeed, it is precisely because the punishment should be directly related to the personal culpability of the defendant that the jury must be allowed to consider and give effect to mitigating evidence relevant to a defendant's character or record or the circumstances of the offense. Penry, supra. Hence, because the class of murderers subject to the death penalty is already narrowed before a jury ever reaches the 37.071 § 2(e) instruction, then no constitutional infirmity exists in giving the issue. Indeed, once the sentencer has found that the defendant is a member of the class made eligible for the death penalty, it may be given “unbridled discretion” in determining whether the death penalty should be imposed. Tuilaepa v. California, 512 U.S. 967, 979, 114 S.Ct. 2630, 2639, 129 L.Ed.2d 750 (1994).

Appellant further alleges that the inability to review the sufficiency of the evidence in regard to the mitigation instruction renders our capital sentencing scheme unconstitutional. We disagree. In Colella, 915 S.W.2d at 845, we declined to perform a sufficiency review of an appellant's mitigating evidence. In fact, because of the subjectivity involved in the consideration of mitigating evidence, an appellate review of the jury's answer would merely amount to an exercise in speculation. However, we do not believe that this renders that section of the statute unconstitutional.

Indeed, as the above-quoted passage from Penry suggests, the Constitution requires a vehicle by which the jury is able to consider and give effect to the mitigating evidence relevant to a defendant's background, character, or the circumstances of the crime. Penry, supra; see also Johnson v. Texas, 509 U.S. 350, 113 S.Ct. 2658, 125 L.Ed.2d 290 (1993). Since Article 37.071 § 2(e) is a codification of the Supreme Court's edicts, it reflects that constitutional requirement. We refuse to hold that what is constitutionally required is unconstitutional merely because it cannot be reviewed for sufficiency.

In Tuilaepa, 512 U.S. at 976-978, 114 S.Ct. at 2638-39, the petitioners suggested that the California statute in issue was flawed because it did not instruct the sentencer how to weigh any of the facts it found in deciding upon the ultimate sentence. The Court then reiterated that a capital sentencer need not be instructed how to weigh any particular fact in the capital sentencing decision and proceeded to give a variety of examples.

In California v. Ramos [463 U.S. 992, 103 S.Ct. 3446, 77 L.Ed.2d 1171] the Court upheld an instruction informing the jury that the Governor had the power to commute life sentences and stated that “the fact that the jury is given no specific guidance on how the commutation factor is to figure into its determination presents no constitutional problem.” [Citation omitted.]

In Proffitt v. Florida [428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913] the Court upheld the Florida capital sentencing scheme even though “the various factors to be considered by the sentencing authorities [did] not have numerical weights assigned to them.” [Citation omitted.]

In Gregg v. Georgia [428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 ] the Court “approved Georgia's capital sentencing statute even though it clearly did not channel the jury's discretion by enunciating specific standards to guide the jury's consideration of aggravating and mitigating circumstances.” [Citation omitted.] The Court also rejected an objection “to the wide scope of evidence and argument” allowed at sentencing hearings. Tuilaepa, supra.

In sum, and as previously stated, the Supreme Court held that, once the jury finds that the defendant falls within the legislatively defined category of persons eligible for the death penalty, the sentencer may be given even “unbridled discretion” in determining whether the death penalty should be imposed. Id. It follows from this that an attempt to review such “unbridled discretion” would not only place us in the position of a thirteenth juror attempting to objectively review what jurors have subjectively decided, but may, in fact, result in arbitrary limits to the jury's wide discretion which would be a violation of the Constitution. Given the analysis in Tuilaepa, we conclude that the inability to review Article 37.071 § 2(e) does not render it unconstitutional. Points of error eleven and twelve are overruled.

In point thirteen, appellant avers that Article 37.071 § 2(e) is facially unconstitutional because it does not assign a burden of proof or persuasion and also, because it fails to set a standard of proof. In instances where mitigating evidence is presented, all that is constitutionally required is a vehicle by which the jury can consider and give effect to the mitigating evidence relevant to a defendant's background, character, or the circumstances of the crime. Barnes v. State, 876 S.W.2d 316, 329 (Tex.Crim.App.), cert. denied, 513 U.S. 861, 115 S.Ct. 174, 130 L.Ed.2d 110 (1994); Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989); Johnson v. Texas, 509 U.S. 350, 113 S.Ct. 2658, 125 L.Ed.2d 290 (1993).

Furthermore, a capital sentencer need not be instructed how to weigh any particular mitigating fact in the capital sentencing decision. Tuilaepa, supra. The absence of an explicit assignment of the burden of proof or the burden of persuasion or a set standard of proof does not render Article 37.071 § 2(e) unconstitutional. See also Walton v. Arizona, 497 U.S. 639, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990). Point of error thirteen is overruled.

Appellant alleges in points fourteen and fifteen that the death penalty as presently administered in Texas is cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments to the United States Constitution and Article I, § 13 of the Texas Constitution. In point fourteen, appellant adopts Justice Blackmun's arguments in his dissenting opinion on the denial of certiorari in Callins v. Collins, 510 U.S. 1141, 114 S.Ct. 1127, 127 L.Ed.2d 435 (1994), in support of his argument that capital punishment is violative of the United States Constitution. Justice Blackmun's basic argument is that the capital sentencing procedures are unconstitutional because they are produced by paradoxical commands: allowing the jury to consider all types of relevant mitigating evidence, while, at the same time, requiring “structured discretion” in sentencing.

Appellant's reliance on Justice Blackmun's dissenting opinion is misplaced. As we set out in points of error eleven and twelve, supra, the Supreme Court recently reiterated that, once the jury finds that the defendant falls within the legislatively defined category of persons eligible for the death penalty, the sentencer may be given “unbridled discretion” in determining whether the death penalty should be imposed. Tuilaepa v. California, 512 U.S. 967, 979, 114 S.Ct. 2630, 2639, 129 L.Ed.2d 750 (1994). This scheme does not create the paradoxical commands of concern to Justice Blackmun. Furthermore, our statutory scheme has not radically changed from the version upheld in Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976), except to incorporate the dictates of Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989). As such, we hold that our capital murder scheme does not amount to cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments. Point fourteen is overruled.

In point fifteen, appellant remarks that this Court has said that it can and should interpret the Texas Constitution in a more expansive manner than the federal constitution and cites us to several cases for this proposition. See Heitman v. State, 815 S.W.2d 681 (Tex.Crim.App.1991). He then notes that the Texas Constitution proscribes “cruel or unusual punishments” while the Eighth Amendment prohibits “cruel and unusual punishments.” Without further substantive citation or authority, appellant claims we should consider this point separately and hold his claim meritorious. This we decline to do. We consider this point inadequately briefed and presenting nothing for our review. Tex.R.App. Proc. 74(f). Point of error fifteen is overruled.

Finally, appellant asserts in point sixteen that Article 37.071 § 2(a) FN5 which prohibits the judge and the parties from telling a juror of the effect of a failure of the jury to agree violates the Eighth and Fourteenth Amendments to the United States Constitution. Texas Code of Criminal Procedure Article 37.071 § 2(a) (as amended by the 1991 Legislature) is the same as the older Article 37.071(g) (Vernon 1990) with only minor changes. We have previously addressed and rejected constitutional challenges to prior Article 37.071(g) on numerous occasions. Rousseau v. State, 855 S.W.2d 666, 686-87 (Tex.Crim.App.), cert. denied, 510 U.S. 919, 114 S.Ct. 313, 126 L.Ed.2d 260 (1993); Felder v. State, 848 S.W.2d 85, 101 (Tex.Crim.App.1992), cert. denied, 510 U.S. 829, 114 S.Ct. 95, 126 L.Ed.2d 62 (1993); Davis v. State, 782 S.W.2d 211, 221-22 (Tex.Crim.App.1989), cert. denied, 495 U.S. 940, 110 S.Ct. 2193, 109 L.Ed.2d 520 (1990). We hold that the same analysis applies to the new statute and appellant has given us no reason to revisit this issue. Point of error sixteen is overruled.

FN5. The pertinent part of Article 37.071 § 2(a) reads: The court, the attorney representing the state, the defendant, or the defendant's counsel may not inform a juror or a prospective juror of the effect of a failure of a jury to agree on issues submitted under Subsection (c) or (e) of this article.

Finding no reversible error, we affirm the judgment of the trial court. McCORMICK, P.J., concurs in the result. CLINTON, J., dissents. WHITE and MALONEY, JJ., not participating.

BAIRD, J., concurs. For the reasons stated in Morris v. State, 940 S.W.2d 610, --- (Tex.Cr.App.1996) (Baird, J., dissenting), I disagree with the treatment of appellant's point of error twelve. Consequently, I join only the judgment of the Court.

OVERSTREET, Judge, dissenting.
I dissent to the majority's discussion of points one through four regarding the trial court's refusal to instruct the jury about appellant's parole ineligibility. The majority maintains that the trial court did not err when it refused to instruct the jury (at appellant's request) that appellant would be parole ineligible until he had served 35 calendar years in prison. The majority relies on Smith v. State, 898 S.W.2d 838 (plurality opinion) (Tex.Cr.App.), cert. denied 516 U.S. 843, 116 S.Ct. 131, 133 L.Ed.2d 80 (1995) and Jones v. State, 843 S.W.2d 487 (Tex.Cr.App.1992), cert. denied, 507 U.S. 1035, 113 S.Ct. 1858, 123 L.Ed.2d 479 (1993) in holding that parole is “traditionally not a matter for jury consideration in a Texas capital murder trial.” Op. at 594.

I have repeatedly insisted that a capital murder defendant's parole ineligibility for the statutory number of years associated with a life sentence should be presented to the jury. See Broxton v. State, 909 S.W.2d 912 (Tex.Cr.App.1995) (Overstreet, J., dissenting), Willingham v. State, 897 S.W.2d 351 (Tex.Cr.App.1995) (Overstreet, J., dissenting), Rhoades v. State, 934 S.W.2d 113 (Tex.Cr.App.1996)(Overstreet, J., dissenting). It is my strong belief that juries should be presented with all relevant information as it pertains to the future dangerousness and mitigation special issues. Relevant information includes the defendant's parole eligibility or ineligibility. In Simmons v. South Carolina, 512 U.S. 154, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994), the Supreme Court held that the sentencing jury must be informed that a defendant is ineligible for parole where future dangerousness is at issue and the defendant is ineligible for parole. To permit otherwise would violate the defendant's due process rights. Id.

This Court, however, has limited the application of Simmons and made what I believe to be irrelevant distinctions. In particular, this Court chose to limit the application of Simmons by concluding that it did not extend to defendants facing life imprisonment with the possibility of parole. Smith, supra. Since Texas does not have life without parole, the Court concluded that the trial court's denial of an instruction regarding parole is not a due process violation under the U.S. Constitution nor a due course of law violation under the Texas Constitution. Smith, supra.

The problem with this rationale is that it overlooks the underlying reasoning in Simmons. In Simmons, the Supreme Court emphasized the fact that juries are often misled or uninformed about parole as it relates to a capital murder case and that this “misunderstanding pervade[s] the jury's deliberations” and “create[s] a false choice between sentencing petitioner to death and sentencing him to a limited period of incarceration.” Simmons, 512 U.S. at 161, 114 S.Ct. at 2193. As a result, the jury is apt to choose death because they fear the defendant may be paroled after a short period of time and would thus be a future danger to society.

Future danger to society is the special issue jurors are trying to decide and in order for them to make a determination regarding whether the defendant would be a future danger to society they must understand and have knowledge of two concepts: future dangerousness and society. Specifically, the jury is attempting to determine “whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society[.]” Art. 37.071 § 2(b), V.A.C.C.P. Thus, future dangerousness means appellant is inclined to commit future acts of violence that puts society or members thereof at risk.

“Society” presents a challenge because the term in Texas has been held to include free citizens as well as inmates. Jones v. State, 843 S.W.2d 487, 495 (Tex.Cr.App.1992), cert.denied, 507 U.S. 1035, 113 S.Ct. 1858, 123 L.Ed.2d 479 (1993). However, no instruction regarding the definition of society is required and is not given. As such, the jury is forced to rely on the “ordinary meaning” of society which usually encompasses only free citizens. Penry v. State, 691 S.W.2d 636, 653 (Tex.Cr.App.1985).

Based upon the ordinary meaning, the jury considers free society when determining the special issue of future dangerousness. This being the case, it would seem logical to inform the jury that society refers to free citizens as well as prison inmates. In order then for a jury to weigh the risk to free citizens, the courts should inform the jury upon request that a capital murder defendant is parole ineligible for many years. Such an instruction is not barred by the constitution and is even allowed in noncapital cases.FN1

Therefore, it would be fair and reasonable to allow such an instruction so that the jury may make an informed decision based on accurate information on a matter involving life versus death. FN1. I add that many courts have given the instructions in Texas. See Rhoades v. State, supra (dissenting opinion by Overstreet, J.) It is for these reasons that I respectfully dissent to the majority's disposition of appellant's points of error one through four.

Shannon v. State, 116 S.W.3d 52 (Tex.Crim.App. 2003) (Postconviction DNA).

Defendant convicted of capital murder filed petition for postconviction DNA testing. The 228th District Court, Harris County, Ted Poe, J., denied petition, and defendant appealed. The Court of Criminal Appeals, Holcomb, J., held that evidence supported determination that no physical evidence regarding unadjudicated sexual assault at issue remained for testing. Affirmed. Keasler, J., concurred in result. HOLCOMB, J., delivered the opinion of the Court, in which KELLER, P.J., and MEYERS, PRICE, WOMACK, JOHNSON, HERVEY, and COCHRAN, JJ., join.

Appellant, Willie Marcel Shannon, appeals from a district court order denying post-conviction DNA FN1 testing with respect to an unadjudicated, extraneous offense. Finding no reversible error, we affirm. FN1. DNA (deoxyribonucleic acid) is a type of organic molecule, in the shape of a double helix, found in the nuclei of all living cells. See E.D. Hirsch, et al., The New Dictionary of Cultural Literacy 530 (3rd ed.2002).

In late 1993, in Harris County, appellant was tried and convicted of capital murder and sentenced to death.FN2 At the punishment stage of the trial, the State offered, and the district court admitted, testimonial evidence that, on the day of the capital murder, appellant also committed an extraneous aggravated sexual assault. The State offered the evidence in an attempt to show that appellant would be a danger in the future. FN2. We upheld appellant's conviction and sentence on direct appeal. Shannon v. State, 942 S.W.2d 591, 601 (Tex.Crim.App.1996).

In late 2001, appellant filed a motion in the convicting district court, pursuant to Texas Code of Criminal Procedure article 64.01, requesting that “all physical evidence” pertaining to the extraneous aggravated sexual assault be subjected to forensic DNA testing and the results compared to his DNA to establish that he was not the assailant in that offense.FN3 Evidently, appellant believed that if he could show that he was not the assailant in the extraneous aggravated sexual assault, he would be entitled to a new punishment hearing, *54 at which he might avoid the death penalty. In his motion for DNA testing, appellant did not explain precisely what physical evidence he wanted tested. FN3. Article 64.01 provides, in relevant part, that “[a] convicted person may submit to the convicting court a motion for forensic DNA testing of evidence containing biological material.”

In early 2002, the State filed a response to appellant's motion. In its response, the State argued that, among other things, it no longer possessed any physical evidence pertaining to the extraneous aggravated sexual assault. FN4 Accompanying the State's response was the affidavit FN5 of K.L. McGinnis, the evidence records custodian of the Houston Police Department (H.P.D.), to the effect that the physical evidence pertaining to the aggravated sexual assault had been destroyed by H.P.D. personnel in 1997. Also accompanying the State's response were photocopies of H.P.D. records establishing that the evidence in question had been a condom wrapper, a plastic bag, another bag containing the victim's clothing, and a sexual assault kit.

* * *

In his fourth point of error, appellant complains of the district court's negative finding on the question of whether any physical evidence pertaining to the extraneous aggravated sexual assault still exists. Appellant argues that the record evidence supporting that negative finding is “so weak” as to make the district court's negative finding “clearly wrong and manifestly unjust.” We disagree.

The State offered substantial evidence, discussed previously, to the effect that the physical evidence in its possession pertaining to the extraneous aggravated sexual assault was destroyed in 1997.

Appellant offered no evidence to the contrary. On this record, the district court could have reasonably concluded that no physical evidence pertaining to the extraneous aggravated sexual assault presently exists. We overrule appellant's fourth point of error. We affirm the order of the district court. KEASLER, J., concurs in the result.

Shannon v. Dretke, 177 Fed.Appx. 431 (Tex.Cr.App. 1999) (5th Cir. 2006) (Habeas).

Background: State prisoner filed petition for writ of habeas corpus. The United States District Court for the Southern District of Texas granted the State's motion to dismiss and denied prisoner a certificate of appealability (COA).

Holdings: The Court of Appeals held that:

(1) state court's denial of petition for post-conviction relief caused Antiterrorism and Effective Death Penalty Act's (AEDPA) one-year limitations period for the filing of a federal habeas petition to begin to run again;
(2) motion to alter or amend judgment could not be used to raise equitable tolling arguments; and
(3) prisoner was not entitled to equitable tolling of AEDPA's limitations period. Affirmed.

Petitioner-Appellant Willie Marcel Shannon (“Shannon”) applies for a certificate of appealability (COA) on the issue whether the district court properly dismissed his federal habeas petition as untimely. For the following reasons, we find that Shannon's application is without merit.

I. BACKGROUND AND PROCEEDINGS

In November 1993, Shannon was convicted and sentenced to death for the carjacking and murder of Benjamin Garza. The Texas Court of Criminal Appeals affirmed on December 11, 1996. Shannon declined to seek review in the United States Supreme Court within 90 days, so his conviction became final on April 29, 1997.FN2 Shannon filed his state application for post-conviction relief on April 13, 1998, and the Texas Court of Criminal Appeals denied it on September 12, 2001.

FN2. Foreman v. Dretke, 383 F.3d 336, 340 (5th Cir.2004) (Texas prisoner's conviction is final for purposes of federal habeas review 90 days after the Texas Court of Criminal Appeals denies petition for review and the prisoner declines to seek review in the United States Supreme Court).

On March 1, 2002, Shannon filed for federal habeas relief. The State moved the district court to deny Shannon's petition as untimely. In July 2005, the district court granted the State's motion to dismiss and denied Shannon a COA on its dismissal.

II. DISCUSSION

A. Standard of Review

When a petitioner seeks a COA for a district court's dismissal of his habeas petition on a procedural ground, such as time bar, he must prove to us that reasonable jurists could debate whether the district court's procedural ruling was correct.FN3 In addition, he must demonstrate that reasonable jurists could debate whether his underlying petition states a valid claim of a denial of his constitutional rights.FN4 In making the second determination, we consider the district court pleadings, the record, and the petitioner's application for a COA.FN5 “If those materials are unclear or incomplete,” we will resolve the issue in favor of the petitioner.

* * *

Moreover, the district court's scheduling order set a January 2, 2002 filing deadline for Shannon's habeas petition, yet he did not file his petition until March 1, 2002-almost 60 days after his petition was due under the scheduling order and more than 150 days after his initial filing in federal court. We do not note Shannon's non-compliance with the scheduling order to imply that filing by the deadline set in such an order necessarily insulates a petitioner from AEDPA's limitations period: It does not.FN13 We mention it only as further evidence of his lack of vigilance in pursuing his habeas petition. Considering the totality of the circumstances, we are convinced that Shannon is not entitled to equitable remedy.FN14 The district court's denial of a COA is AFFIRMED.

FN13. See Fierro v. Cockrell, 294 F.3d 674 (5th Cir.2002). FN14. Because Shannon's equitable tolling arguments are groundless, we need not consider the State's additional, and also potentially dispositive, points that (1) Shannon cannot urge before this court arguments he raised for the first time in a Rule 59 motion in the district court, and (2) Shannon failed to comply with Slack because he has not asserted any constitutional claims that could be debatable among reasonable jurists.

Willie Marcel Shannon