Lionel Simpson was convicted of capital murder is serving a life sentence. Jennifer Simpson pleaded guilty and is serving a 40-year term. Both were certified for trial as adults but were ineligible for the death penalty because of their age. McCoy was sent to the Texas Youth Commission and paroled in 2007 at age 21 to serve the remainder of his 13-year sentence under adult parole supervision.

Citations:

Simpson v. State, 119 S.W.3d 262 (Tex.Crim.App. 2003). (Direct Appeal)
Ex parte Simpson, 136 S.W.3d 660 (Tex.Crim.App. 2004) (State Habeas).
Simpson v. Quarterman, 291 Fed.Appx. 622 (5th Cir. 2008) (Federal Habeas).
Simpson v. Quarterman, Slip Copy, 2009 WL 2462248 (5th Cir. 2009) (Federal Habeas).

Final/Special Meal:

Four pieces of fried chicken, gravy and biscuits and milk .

Final Words:

“I want to tell my family I love y’all. I’m going to miss y’all. I’m ready, ready.” He expressed love to his family and one of his attorneys. He did not acknowledge his victim's family.

Texas Department of Criminal Justice

Texas Attorney General

Wednesday, November 11, 2009

Media Advisory: Danielle Simpson scheduled for execution

AUSTIN – Texas Attorney General Greg Abbott offers the following information about Danielle Simpson, who is scheduled to be executed after 6 p.m. on Wednesday, November 18, 2009. In December 2000, Simpson was sentenced to die for the capital murder of Geraldine Davidson, a widow and retired teacher.

FACTS OF THE CRIME

Danielle Simpson and two accomplices broke into the Anderson County home of eighty-four-year-old Geraldine Davidson to burglarize the residence. When Mrs. Davidson returned home a short time later, Simpson taped her mouth and bound her hands and feet with duct tape. Simpson then put a pillow case over her head and put her in the trunk of her own car. Simpson and his accomplices then drove to several different locations before heading to the Neches River, where they dumped Mrs. Davidson in the river.

On at least two previous occasions, Simpson had burglarized Mrs. Davidson’s house.

PUNISHMENT-RELATED EVIDENCE

During the sentencing phase of Simpson’s trial, the State introduced evidence that after Mrs. Davidson had been placed in the trunk of the car, Simpson appeared happy. As the group drove away from Mrs. Davidson’s house, Simpson said that white people deserved to die. Evidence was introduced that Simpson had been placed on ten-years’ deferred adjudication in 1999 for indecency with a child. Witnesses said he was a member of a Palestine street gang, which was linked to drug trafficking, assaults, robberies, and shootings. He also was implicated in several burglaries. Testimony linked Simpson to assaults on his wife, Jennifer, and on another female. The jurors heard of another incident in which Simpson smashed the windows of his sister’s car.

PROCEDURAL HISTORY

Feb. 17, 2000 – An Anderson County grand jury indicted Simpson for capital murder.
Dec. 5, 2000 – After a trial in the Third District Court of Anderson County, the jury found Simpson guilty of capital murder.
Dec. 8, 2000 – After a punishment hearing, the court sentenced Simpson to death.
Dec. 3, 2002 – Simpson filed an application for state habeas corpus relief.
Oct. 1, 2003 – On appeal, the Texas Court of Criminal Appeals affirmed the conviction and the sentence.
June 14, 2004 – The U.S. Supreme Court denied certiorari review.
June 30, 2004 – The Texas Court of Criminal Appeals denied his application for state habeas corpus relief.
June 28, 2005 – In the U.S. District Court for the Eastern District of Texas, Simpson filed a petition for federal habeas corpus.
March 29, 2007 – The U.S. District Court for the Eastern District of Texas denied federal habeas corpus relief.
April 4, 2007 – Simpson filed notice of appeal.
June 7, 2007 – The U.S. District Court for the Eastern District of Texas granted Simpson permission to appeal.
Aug. 29, 2008 – The United States Court of Appeals for the Fifth Circuit remanded the case to the federal district court to hold an evidentiary hearing on the issue of Simpson’s possible retardation.
Dec. 10, 2008 – An evidentiary hearing was held in Beaumont.
Jan. 8, 2009 – The federal district court denied Simpson’s mental-retardation claim.
Jan. 31, 2009 – Simpson filed notice of appeal.
Feb. 3, 2009 – Simpson filed a motion in the federal district court seeking permission to appeal.
2009 – Simpson wrote a letter to the United States Court of Appeals for the Fifth Circuit asking permission to waive appeals.
March 9, 2009 – Acting through counsel, Simpson moved in the federal appeals court for remand for a competency hearing.
April 10, 2009 — The Fifth Circuit court remanded the case to the federal district court for a competency hearing.
June 9, 2009 – A competency hearing was held in Beaumont.
June 12, 2009 – The district court issued order concluding that Simpson was competent to waive further habeas corpus review.
June 30, 2009 – Simpson signed an affidavit announcing his decision to alter course and continue his appeal.
July 6, 2009 – Counsel for Simpson moved in the Fifth Circuit to continue appeal and asked to withdraw as counsel.
July 15, 2009 – Simpson signed statement announcing his decision to alter course again and to waive further appeals.
July 22, 2009 – Simpson filed motion in the Fifth Circuit court again asking that his appeal be dismissed.
Aug. 12, 2009 – The Fifth Circuit court dismissed Simpson’s appeal.
Aug. 13, 2009 – The Third District Court of Anderson County scheduled the execution for November 18, 2009.
Aug. 26, 2009 – Brenda Simpson, Simpson’s mother and sisters moved to intervene as next friends to continue the appeal.
Sept. 21, 2009 – The Fifth Circuit court denied the motion to intervene.
Oct. 5, 2009 – Brenda Simpson, LaTonya Simpson, Kenya Sanders, and Kathryn Evans asked the Fifth Circuit to reconsider.

Man executed for abduction-slaying of Texas woman

Huntsville Item Online

Associated Press - November 18, 2009

A convicted killer who volunteered for execution but in recent weeks changed his mind was put to death Wednesday evening for the abduction-slaying of an 84-year-old east Texas woman who was weighted down with a cinder block and thrown into a river. Danielle Simpson, 30, was condemned for the murder of Geraldine Davidson, a former school teacher and church organist abducted nearly 10 years ago during a burglary of her home in Palestine, about 100 miles southeast of Dallas.

“I want to tell my family I love y’all,” Simpson, 30, said in brief comments while strapped to the death chamber gurney. “I’m going to miss y’all. “I’m ready, ready.” He shook his head and raised it as the lethal drugs were administered, gasped a couple of times and then his body trembled for several seconds before he slipped into unconsciousness. He was pronounced dead at 6:32 p.m. CST, nine minutes later.

Simpson was the 22nd Texas prisoner to be executed this year.

A federal court earlier this year had said Simpson was competent to decide to drop his appeals. Then Simpson reversed himself and allowed lawyers to try to save him from lethal injection. His execution came less than an hour after the U.S. Supreme Court rejected a last-day appeal that argued he was mentally impaired and incapable of deciding whether to drop his appeals. They offered his repeated reversals as proof. His lawyers also lost an appeal that challenged the elimination of two black people from consideration to serve on Simpson’s trial jury. Simpson is black. No blacks on the jury that convicted him and decided he should be put to death.

Simpson told The Associated Press earlier this month from death row he was innocent, it wasn’t his choice to volunteer for execution and Texas prisons were “pitiful.” He earlier sent a federal court a handwritten motion in which he said he was “tired of being in a institution that’s unjust, degrading, and corrupted” and was ready to die.

A federal judge found Simpson had “a mental disease, disorder or defect” but was able to understand his legal position and competent to choose to die.

Evidence and testimony at Simpson’s trial detailed Davidson’s January 2000 death. She arrived home and interrupted a burglary involving Simpson, then 20, his wife, Jennifer, 17, and a cousin, Edward McCoy, 13. Evidence showed Simpson, who lived nearby, had broken into Davidson’s home at least two other times. Testimony showed he held a knife to Davidson’s throat and ordered her to surrender money from her purse. Davidson’s mouth was duct taped, her hands tied behind her, her legs taped and a pillow case was pulled over her head. Davidson then carried her over his shoulder outside and threw her in the trunk of her car.

Testimony showed the three drove around in her car, bought marijuana, tried to buy cocaine, then went about 10 miles out of town to visit a relative where Simpson opened the trunk and showed off their captive. When Davidson asked for her medication, Simpson told her to “Shut up!” and slammed the trunk lid. They drove back to Palestine and showed off their captive to more friends while Simpson’s wife made calls on Davidson’s cell phone.

The trio was joined by Lionel Simpson, his 15-year-old brother. With Danielle Simpson driving, they went to a dead-end road, pulled the woman out, re-taped her arms and legs, beat her and tossed her back in the trunk. They went to a fast-food place to eat, then drove to the Neches River, threw her to the ground, kicked her in the face, tied one end of a rope around her legs and the other end to a cinder block.

A medical examiner testified Davidson was alive when she was thrown in the river. A passing motorist eventually spotted the body floating in the water. Simpson contended neither he nor his brother was responsible for the slaying, which he blamed on his wife and cousin, who testified against him. “The problem with that was (Simpson) was the one who kidnapped her and threw her in the trunk,” Doug Lowe, the Anderson County district attorney who prosecuted Simpson, said. “Since then, I haven’t seen anything as brutal — nothing that would get close to what that was.”

Lionel Simpson is serving a life sentence. Jennifer Simpson pleaded guilty and is serving a 40-year term. Both were certified for trial as adults but were ineligible for the death penalty because of their age. McCoy was sent to the Texas Youth Commission and paroled in 2007 at age 21 to serve the remainder of his 13-year sentence under adult parole supervision.

Another inmate who had been scheduled to die this week — Gerald Eldridge, 45 — won a reprieve from a federal judge who agreed with attorneys that his mental competency should be further examined before he can be put to death for a double slaying in Houston 17 years ago.

And on Wednesday, The Texas Board of Pardons and Paroles, in a highly unusual vote, recommended that a convicted murderer set to die Thursday for his part in the fatal shooting of Houston convenience store clerk have his sentence commuted to life in prison. The board’s action leaves the decision on whether Robert Lee Thompson, 34, lives or dies with Gov. Rick Perry.

Man executed for abduction-slaying of Texas woman

By Michael Graczyk - Associated Press

The Houston Chronicle

Nov. 18, 2009

HUNTSVILLE, Texas — A convicted killer who volunteered for execution but in recent weeks changed his mind has been put to death in Texas.

Thirty-year-old Danielle Simpson received lethal injection Wednesday evening for the abduction-slaying of 84-year-old Geraldine Davidson. The former school teacher was abducted nearly 10 years ago during a burglary of her home in Palestine, about 100 miles southeast of Dallas.

While strapped to the death chamber gurney, Simpson said he loved his family and would miss them. Then, he said, "I'm ready, ready."

A federal court earlier this year had said Simpson was competent to decide to drop his appeals. Then Simpson reversed himself and allowed lawyers to try to save him. Simpson was the 22nd Texas prisoner executed this year.

Danielle Simpson

ProDeathPenalty.com

Danielle Simpson was charged with the offense of capital murder committed in the course of committing or attempting to commit kidnapping.

The evidence admitted during the guilt phase of the trial established that there were three parties to the victim's initial kidnapping: Simpson, Jennifer Simpson, and Simpson's thirteen-year-old cousin, Edward McCoy. All three lived with McCoy's mother and sisters in a house a couple of blocks from Geraldine Davidson's house. Geraldine was an 84-year-old woman who lived alone. She was a former Palestine school teacher and the organist at her Methodist church. Simpson had burglarized Geraldine's house on at least two previous occasions.

McCoy testified that, on the morning of the offense in January, 2000, Simpson asked him if he wanted to go with him to burglarize Geraldine's house. McCoy agreed. Simpson, Jennifer, and McCoy all walked around the corner to Geraldine's house. After knocking on the door to see if anyone was home, Simpson went into Geraldine's garage, got a hammer and pick, and broke a window. Jennifer climbed through the window and then went around and opened the door. Once inside, Jennifer took a ring and some money, and Simpson took a watch.

About fifteen minutes later Geraldine came home. When Geraldine entered the kitchen, Simpson approached her from behind and held a knife to her neck. He asked Geraldine for money which he then retrieved from her purse. Simpson directed McCoy and Jennifer to restrain Geraldine while he left to get a pillow case and duct tape. When he returned, Simpson taped Geraldine's mouth and bound her hands behind her back and told Jennifer to tape her legs. Simpson then put the pillow case over Geraldine's head, threw her over his shoulder, and carried her outside. Simpson unlocked the trunk of Geraldine's car and placed her inside. The three climbed in Geraldine's car and drove to a couple of different locations to buy drugs.

McCoy described Simpson and Jennifer as acting normally and having a good time. After purchasing marijuana and making an unsuccessful attempt to buy some crack cocaine, the three drove about ten miles from Palestine to Grapeland to visit Simpson's aunt and her daughter, Shay. McCoy testified that Simpson opened the trunk and showed Geraldine to Shay. When Geraldine asked for her medicine, Simpson told her to "shut up" and slammed the lid closed. The rest of the afternoon Simpson drove around in Geraldine's car visiting and congregating with various friends in Palestine, occasionally opening the trunk to show off his victim. Jennifer used Geraldine's cell phone throughout the day. McCoy's following testimony is similar to the above objected-to hearsay statements: "Then Lionelle got the rope and tied the rope around her legs and he got the other half of the rope and tied it around the brick and threw the brick in the water." Q. Then what happened? A. Then Lionelle got her hands and Simpson got her legs and started swinging her and chunked her in the river." Others testified that later that night, Simpson "rented" them Geraldine's car to use for a couple of hours in exchange for drugs. Also entered into evidence was a letter written by Simpson to a cousin in which Simpson claimed he "was just the watch out person and driver of the car," and accused Jennifer and McCoy of putting Geraldine in the trunk and throwing her in the river. Simpson stated in the letter that he and Lionelle remained in the car.

Geraldine Davidson's body was found in the water by a passing motorist. Simpson's co-defendants in the case included his younger brother, Lionelle Simpson; his wife, Jennifer Simpson; McCoy has completed his sentence. Lionelle Simpson was tried as an adult and is currently serving a life sentence for capital murder. Jennifer Simpson pled guilty after her August 2000 trial had started and was sentenced to life in prison. She will be eligible for parole after serving 30 years of her sentence. UPDATE: Danielle Simpson was executed after his attorneys failed in their attempts to get his execution stopped. Five members of Davidson's family, including her three adult children, witnessed the execution. Simpson said goodbye to his family and attorneys but made no comment to the victim's family. Anderson County District Attorney Doug Lowe, said, "I don't get any pleasure out of the execution of Danielle Simpson but this was a case that deserved that punishment. He was a person who showed no remorse for his victim and had many opportunities throughout the day to spare her life and didn't."

Danielle Simpson

Simpson dies for teacher killing

Death Row inmate was sentenced in Athens nine years ago

By Rich Flowers - Athens Daily Review

November 19, 2009

A 30-year old man, sentenced to die in Athens nine years ago, was executed Wednesday, despite attempts to save him from lethal injection.

In December, 2000, 3rd District Judge Jim Parsons sentenced Danielle Simpson to die for his part in the death of 84-year-old Geraldine Davidson. Davidson, a former school teacher, was abducted that January during a burglary of her Palestine home. Her body was found a few days later in the Neches River. Simpson, one of four defendants in the case was the only one sentenced to die for the crime.

In recent days, attempts to help Simpson avoid execution gained national attention. Simpson won federal court approval earlier this year to stop his appeals. Later, he changed his mind and allowed his lawyers to try to save him. According to an Associated Press story, his attorneys argued to the federal courts that Simpson is mentally impaired, incapable of deciding whether or not to drop his appeals, and offered his repeated reversals as proof.

They also wanted permission to appeal a lower court’s determination that Simpson is not mentally-impaired, and challenged the elimination of two Black people from consideration to serve on Simpson’s trial jury. Simpson is Black. There were no Blacks on the jury that convicted him, and decided he should be put to death. Ultimately all the appeals were denied.

Testimony in Simpson’s 2008 trial detailed the final hours and death of Davidson. The state was represented by Anderson County District Attorney Doug Lowe. Mark Calhoon, now 3rd District Judge, assisted Lowe in the prosecution.

According to accounts in the Athens Review, testimony revealed that Davidson had been tossed into the chilly river with her hands tied behind her back, and a cinder block tied to her ankles. A medical examiner testified that Davidson was alive when thrown into the river.

Earlier this week, Texas Attorney General Greg Abbott released information pertaining to the murder. According to Abbott’s office, Simpson held a knife to Davidson’s throat, and ordered her to surrender money from her purse. Her mouth was duct-taped, her hands tied behind her and her legs taped. A pillow case was pulled over her head, and then he carried her over his shoulder outside and threw her in the trunk of her car.

Danielle Simpson

In his first point of error, the appellant claims the trial court erred in sustaining the State's challenge for cause against venire member Brenda S. Looney without allowing the appellant's counsel an opportunity to question her. The trial court conducted Looney's voir dire and devoted its questioning almost exclusively to the issue of her ability to follow the law in light of her personal views about the death penalty. The State challenged her for cause on the ground that she opposed the death penalty, and its challenge was granted. The appellant objected to the granting of the challenge without being given an opportunity to question Looney. On appeal, the appellant relies on Perillo v. State, 656 S.W.2d 78 (Tex. Crim. App. 1983), for his claim that his counsel should have been allowed to question Looney and he relies on Gray v. Mississippi, 481 U.S. 648 (1987), and Davis v. Georgia, 429 U.S. 122 (1976), in support of his argument that the error is not subject to a harm analysis.

Excusing a prospective juror without giving counsel for the defendant an opportunity to question the juror should not ever occur unless the record affirmatively and unequivocally reflects that the prospective juror would, regardless of the evidence, automatically vote for a verdict that would prohibit the assessment of the death penalty.

Id. at 81. Because the prospective juror at issue in Perillo was a vacillating juror rather than one absolutely disqualified under Witherspoon, we held defense counsel should have been given an opportunity to examine him. Id. at 82. By failing to give defense counsel such an opportunity, we held the trial court committed reversible error. Ibid.

In Howard, we were persuaded that our earlier approach was incorrect, and we modified it. We held that, if after inquiry by the trial court, it is clear that the venire member is conclusively biased against a phase of law upon which the State is entitled to rely during the guilt or punishment phases and that these views would prevent or substantially impair the venire member's ability to perform her duties, it was not error for the trial court to deny the defendant an opportunity to question venire members before granting the State's challenge for cause. Ibid.

Today, we once again modify the standard for determining error when the trial court denies a defendant's request to question individually a venire member in a capital case. First, Article 35.17, Section 2, is the basis for the appellant's objection that he was not provided an opportunity to question the venire member about her views on the death penalty. That section provides that:

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

Tex. Code Crim. Proc. art. 35.17, § 2. Although the trial court has a great deal of discretion in placing reasonable restrictions on the exercise of voir dire examination, Boyd v. State, 811 S.W.2d 105, 115 (Tex. Crim. App. 1991), the statute is clear. The trial court, upon demand of either party, is required to permit that party to individually question a venire member on the principles already discussed by the trial court. As a result, a trial court that denies a party's request has erred.

In light of Cain, such error is now subject to a harm analysis. And, because the appellant's complaint is that he was not afforded an opportunity to question the venire member under Article 35.17, we review the record for harm under the nonconstitutional standard provided in Rule 44.2(b). Under Rule 44.2(b), we disregard all nonconstitutional errors that do not affect the appellant's substantial rights. We have held that a substantial right is affected when the error has a substantial and injurious effect or influence in determining the jury's verdict. Johnson v. State, 43 S.W.3d 1, 4 (Tex. Crim. App. 2001).

In this case, the trial court explained the special issues to the venire member. After the explanation, the trial court began to question the venire member about her views on the death penalty. At first, the venire member said that she could answer the special issues according to the evidence even if it meant that the trial court would impose a death sentence. Then the trial court questioned the venire member about the questionnaire she had completed. In the questionnaire, the venire member said that she was opposed to the death penalty because she could not put anyone to death. The venire member vacillated on whether she could impose the death penalty until the trial court asked her about her questionnaire response that the death penalty may be appropriate in certain cases, but that she could never return a verdict that would require the trial court to impose a death sentence. When asked about this, she said that her personal feelings would override any evidence that was presented during the trial and that she could never return a verdict of death. She also explained that she holds religious beliefs against the death penalty.

Given the venire member's testimony, it is highly unlikely that the appellant would have been able to convince her to say otherwise or that the trial court would have abused its discretion in dismissing her for cause. As a result, we have a fair assurance that the trial court's error did not influence the outcome of the trial. Point of error one is overruled.

In points of error two through seven, the appellant claims the trial court erred in sustaining the State's challenges for cause against six different venire members on the basis of their purported inability to impose the death penalty. The appellant did not preserve error on any of these points because he failed to object when the trial court sustained the State's challenges for cause. Tex. R. App. Proc. 33.1. Points of error two through seven are overruled.

In point of error eight, the appellant claims the trial court erred in overruling his Batson challenge. Batson v. Kentucky, 467 U.S. 79 (1986). During voir dire, the appellant objected on Batson grounds to the State's use of a peremptory strike against venire member John Willis Earl. Without making a finding that the appellant had made a prima facie case, the trial court entertained the State's explanations for its strike against Earl.

The prosecutor explained that Earl was struck for the following reasons: (1) Earl had a nephew who was an inmate in the Texas Department of Criminal Justice, Institutional Division ("TDCJ-ID"); (2) Earl had been an employee of TDCJ-ID from 1977-1978; (3) during his employment with TDCJ-ID, Earl worked with inmates convicted of murder, some of whom he said may be innocent; (4) Earl believed African-Americans receive the death penalty "disproportionately more than other races or groups"; (5) Earl believed death row inmate Gary Graham was unjustly convicted and treated unfairly and strongly believed that the governor should have granted Graham a stay of execution; and (6) a juror consultant who reviewed Earl's questionnaire and voir dire responses suggested he should be struck.

On cross-examination, the appellant asked the prosecutor if any of the other venire members who had worked at TDCJ-ID had been challenged. The prosecutor replied that he did not know. The appellant asked the prosecutor whether there were other venire members besides Earl who were struck by the prosecution because they had known people in prison or had relatives in prison. The prosecutor responded that it was his recollection that there were others and that they had been struck. He named one venire member who was struck because her daughter's boyfriend was in prison. He also named another venire member who was initially going to be struck because he had several friends in prison, but upon gaining insight into the defense strikes, the prosecution decided against striking him. The prosecutor stated that a third potential juror's involvement in a drug rehabilitation program was a "large consideration" in their decision to use a strike against her. A fourth potential juror's friendship with a man in an Oklahoma prison was a consideration in striking him. There was no further cross-examination. The trial court found the prosecutor's explanations were "clear, . . specific, . . . supported by the record, . . . ha[d] facial validity," and were race-neutral, and overruled the appellant's Batson challenge. The appellant claims the prosecutor's explanations were pretexual.

A Batson challenge generally gives rise to a three-step process. First, the defendant must make a prima facie case that a venire member was peremptorily excluded on the basis of race. Jasper v. State, 61 S.W.3d 413, 421 (Tex. Crim. App. 2001). Next, the prosecution must come forward with race-neutral reasons for the peremptory strike. Finally, the defendant has the opportunity to rebut the State's explanations. The burden of persuasion remains with the defendant to prove purposeful discrimination. Ibid.; see also Johnson v. State, 68 S.W.3d 644, 649 (Tex. Crim. App. 2002). If, as here, the State offers a race-neutral explanation before any inquiry on the prima facie case, the issue of a prima facie case is moot. Johnson, 68 S.W.3d at 649.

In Purkett v. Elem, 514 U.S. 765, 768 (1995), the Supreme Court explained that "[u]nless a discriminatory intent is inherent in the prosecutor's explanation, the reason offered will be deemed race neutral." See also Guzman v. State, 85 S.W.3d 242, 246 (Tex. Crim. App. 2002). None of the prosecutor's explanations reflect an inherently discriminatory intent. And the appellant did not attempt to rebut the State's reasons. The trial court's finding that the State's explanations were race-neutral is supported by the record and is not clearly erroneous. Point of error eight is overruled.

In his ninth point of error, the appellant claims the trial court erred in permitting the prosecutors to argue a comparison between the appellant and the victim at the guilt phase of trial. In his tenth point of error, the appellant claims the trial court erred in permitting the prosecutors to give their personal opinions in the jury argument. The appellant did not object to any of the complained-of jury arguments and therefore forfeited his right to raise any alleged error on appeal. Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996)(defendant must object and pursue objection to adverse ruling in order to complain about erroneous jury argument on appeal). Points of error nine and ten are overruled.

In his eleventh point of error, the appellant claims the trial court erred in admitting hearsay statements of the appellant's wife, Jennifer Simpson, on grounds that they were inadmissible under the Sixth Amendment and the Confrontation Clause. During the guilt phase of the trial, Christina Walker testified that Jennifer told her that "Lionelle had tied the woman and [the appellant] had threw [sic] her in there . . . the river." Another witness, Kenosha Walker, testified that Jennifer Simpson told her that "[t]hey went to the Neches River and that [the appellant] and Lionelle got the woman out of the trunk and Lionelle tied a rock to her ankles[.]" The trial court admitted both statements as statements against interest under Rule of Evidence 803(24).

Rule of Evidence 803(24) provides for an exception to the hearsay rule for statements against the declarant's interest. It does not provide an exception for a declarant's statements against someone else's interest, such as a third party, co-actor, or co-defendant, unless the statement against the other person's interest is also sufficiently against the declarant's interest to be considered reliable. Guidry v. State, 9 S.W.3d 133, 149 (Tex. Crim. App. 1999). In the statements at issue here, Jennifer, as the declarant, did not implicate herself at all except to suggest her presence by saying that "they" went to the river. This is not enough to render the statements sufficiently against her interest to be reliable. Therefore, the statements made by Jennifer that were against the appellant's interest were not admissible under Rule 803(24).

The appellant claims admission of the statements violated the Confrontation Clause of the Sixth Amendment. Admission of hearsay evidence against a criminal defendant implicates the Confrontation Clause because the defendant is not afforded an opportunity to confront the out-of-court declarant. Ibid. (citing Ohio v. Roberts, 448 U.S. 56 (1980)).

The appellant was charged with the offense of capital murder committed in the course of committing or attempting to commit kidnapping. The evidence admitted during the guilt phase of the trial established that there were three parties to the victim's initial kidnapping: the appellant, Jennifer Simpson, and the appellant's thirteen-year-old cousin, Edward McCoy. All three lived with McCoy's mother and sisters in a house a couple of blocks from the victim's house. The victim was an 84-year-old woman who lived alone. The appellant had burglarized the victim's house on at least two previous occasions.

McCoy testified that, on the morning of the offense, the appellant asked him if he wanted to go with him to burglarize the victim's house. McCoy agreed. The appellant, Jennifer, and McCoy all walked around the corner to the victim's house. After knocking on the door to see if anyone was home, the appellant went into the victim's garage, got a hammer and pick, and broke a window. Jennifer climbed through the window and then went around and opened the door. Once inside, Jennifer took a ring and some money, and the appellant took a watch. About fifteen minutes later the victim came home. When the victim entered the kitchen, the appellant approached her from behind and held a knife to her neck. He asked the victim for money which he then retrieved from her purse. The appellant directed McCoy and Jennifer to restrain the victim while he left to get a pillow case and duct tape. When he returned, the appellant taped the victim's mouth and bound her hands behind her back and told Jennifer to tape her legs. The appellant then put the pillow case over the victim's head, threw her over his shoulder, and carried her outside. The appellant unlocked the trunk of the victim's car and placed her inside.

[McCoy]. Then Lionelle got the rope and tied the rope around her legs and [the appellant] got the other half of the rope and tied it around the brick and threw the brick in the water.

[Prosecutor]. Who threw the brick into the water?

A. [The appellant].

Q. Then what happened?

A. Then Lionelle got her hands and [the appellant] got her legs and started swinging her and chunked her in the river.

Others testified that later that night, the appellant "rented" them the victim's car to use for a couple of hours in exchange for drugs. Also entered into evidence was a letter written by the appellant to a cousin in which the appellant claimed he "was just the watch out person and driver of the car," and accused Jennifer and McCoy of putting the victim in the trunk and throwing her in the river. The appellant stated in the letter that he and Lionelle remained in the car.

Given the strong evidence concerning the appellant's participation in the offense, we conclude beyond a reasonable doubt that the two hearsay statements describing the appellant's actions in the final moments of the murder did not contribute to the appellant's conviction or punishment, particularly in light of the fact that McCoy testified to virtually the same evidence. Although the hearsay testimony could have added credibility to McCoy's testimony, many other witness accounts and evidence separately corroborated McCoy's testimony. Point of error eleven is overruled.

In his twelfth point of error, the appellant claims "the trial court erred by denying a mistrial after the State introduced victim impact testimony calling for the death penalty." During the punishment phase of the trial, the State called one of the victim's sons, Clyde Davidson, who testified as follows:

[Prosecutor]. And I don't think it would be appropriate for you to pursue what your mother would have wanted to do in this case, but what does your family want to have done?

[Witness]. I've talked with all my children and I've talked with my wife. I've talked with my grandchild that is an adult, and unanimously we want the death penalty.

[Prosecutor]. . . . I can appreciate the fact that [the appellant's] father can look into a picture from the newspaper and look into [the victim's] eyes and can assume that she wouldn't want this. The family does.

The trial court sustained the appellant's objection and instructed the jury to disregard. The appellant's motion for a mistrial was overruled.

In Payne, 501 U.S. at 827, the United States Supreme Court held "that evidence about the victim and about the impact of the murder on the victim's family is relevant to the jury's decision as to whether or not the death penalty should be imposed." The Supreme Court recognized the possibility that "unduly prejudicial evidence" might be introduced and held that the Due Process Clause would provide a mechanism for relief under those circumstances. Id. at 825. In Mosley v. State, 983 S.W.2d 249, 262 (Tex. Crim. App. 1998), cert. denied, 526 U.S. 1070 (1999), we held that "[b]oth victim impact and victim character evidence are admissible, in the context of the mitigation special issue, to show the uniqueness of the victim, the harm caused by the defendant, and as rebuttal to the defendant's mitigating evidence." We have described victim-impact evidence as evidence "concerning the effect that the victim's death will have on others, particularly the victim's family members." Mathis v. State, 67 S.W.3d 918, 928 (Tex. Crim. App. 2002) (quoting Mosley, 983 S.W.2d at 261).

A trial court's denial of a motion for mistrial is reviewed under an abuse of discretion standard. Wood v. State, 18 S.W.3d 642, 648 (Tex. Crim. App. 2000). Mistrial is appropriate for only "highly prejudicial and incurable errors." Ibid. It may be used to end trial proceedings when faced with error so prejudicial that "expenditure of further time and expense would be wasteful and futile." Ibid. We have held that "ordinarily, a prompt instruction to disregard will cure error associated with an improper question and answer." Ovalle v. State, 13 S.W.3d 774, 783 (Tex. Crim. App. 2000). The trial court is required to grant a motion for a mistrial only when the improper question is "clearly prejudicial to the defendant and is of such character as to suggest the impossibility of withdrawing the impression produced on the minds of the jurors." Woods, 18 S.W.3d at 648.

In this case, the erroneously elicited statement and the State's later reference to it were prejudicial, and we strongly discourage the State from soliciting or making any references to the wishes of the victim's family or friends about the punishment to which the defendant should be sentenced. But, the evidence in support of the jury's verdict on punishment was very substantial.

The evidence admitted during the punishment phase showed that the appellant was a member of a gang called the Southside Cryps whose members engaged in dealing drugs and fighting. An expert on gangs testified that the tattoos on the appellant's arm were particular to membership in the Southside Cryps. An expert testified about the prevalence of drugs, gangs, weapons, and violence in prison.

The evidence showed that the appellant had engaged in other burglaries. McCoy described breaking into a house with the appellant and Lionelle a block from the victim's house about a month before the instant offense. The three spray-painted the interior of the house with orange, black, and silver paint, writing their gang nick names and other gang-related words, phrases, and obscenities. Among the words painted by the appellant included "white people should die." The State introduced color photographs of the vandalism. The State introduced evidence that the appellant had committed at least two other burglaries of other people's homes.

The appellant also committed violence against other people, some of which were his own family members. A police officer testified to responding to a call from Jennifer Simpson, the appellant's wife, who claimed the appellant punched her in the face. Another officer testified that he responded to a call where a fight had taken place between the appellant and his sister. The appellant's sister told the officer that she and the appellant had fought over the appellant "fondling" his nine-year-old cousin. After exchanging blows with his sister, the appellant fled the house, knocking out all of the windows in his sister's car with a brick. The State also presented evidence that the appellant had shot at a former girlfriend with a sawed-off shotgun. One officer testified that he responded to a call from a girl who claimed the appellant assaulted her by punching her with his fist in the side of her head. In 1999, the appellant received deferred adjudication probation for ten years in exchange for pleading guilty to a charge of indecency with a child.

Finally, a psychiatrist testified that he had diagnosed the appellant with anti-social personality disorder and that the appellant exhibited characteristics of a psychopath. He stated that in his opinion the appellant poses a high level of risk for future acts of criminal violence. He described the appellant as a "predator."

During the punishment phase, the defense introduced evidence of substantial verbal and physical abuse of the appellant's mother by the appellant's father while the appellant was growing up, along with evidence of neurological disfunction and injuries.

According to the appellant's evidence, he was borderline mentally retarded. He had suffered from at least two head injuries, one in which he was knocked out in a football game and remained unconscious for an hour and a half and another incident in which he was thrown from a "bucking barrel" (a simulated bucking bronco). A pediatric physician with special qualifications in pediatric neurology testified that the appellant had an abnormal neurological status as a result of the combination of his borderline mental retardation and trauma to the head resulting in concussion. A medical doctor specializing in psychiatry testified that in addition to the appellant's borderline mental retardation, childhood abuse and trauma, the appellant also has brain damage called subdural hematoma. He testified that an MRI revealed the existence of two large blood clots sitting on both sides of the appellant's brain, compressing the brain. He testified that this type of damage could affect behavior, judgment, impulse-control, and the ability to tolerate frustration. A clinical psychologist testified that the appellant was not a psychopath.

This case involved the brutal murder of an elderly woman. Also, the appellant has a history of gang membership, breaking the law, and committing violence against people close to him. All of this evidence was received before the comment by the victim's son.

We also think that the jury would not place much weight on the erroneously elicited comment. Jurors understand that the victim's family members will be emotional and therefore less objective about what punishment should be given. It was probably no great surprise that the victim's family was in favor of the death penalty.

After reviewing the nature and extent of the evidence against the appellant and the trial court's prompt instruction, we conclude that the instruction cured any prejudice flowing from the witness's testimony and the State's argument. As a result, the trial court did not abuse its discretion in overruling the appellant's motion for mistrial. Point of error twelve is overruled.

The judgment of the trial court is affirmed.

Delivered: October 1, 2003.

Publish.

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