Condemned inmate's death from cancer leaves unanswered
August 20, 2010
During the few times that Jason Ward
visited his younger brother Sheldon Ward on Death Row,
he could never bring himself to ask the question that
had gnawed at him since Sheldon was convicted of a
brutal rape and killing.
Why did you do it?
"I wanted to know how could someone
I've known my whole life commit a crime like that,"
Jason Ward said last month from his Kansas home.
There will be no more visits, no more
chances to ask.
Sheldon Ward, condemned for killing
Sudanese immigrant Nyanuer "Mary" Pal early on
Valentine's Day 2002, learned that he had a brain tumor
not long after he was sentenced by a Tarrant County jury
On May 13, he died in a Galveston
He was only 30.
Ward left behind journals in which he
frequently made entries about his life. Along with his
ashes and a few personal belongings, those journals have
been shipped to his mother's home in Manhattan, Kan.
Ward's ashes were buried next to a
younger half sister in Wellington, Kan. She was killed
in a wreck not long after he was arrested.
"Maybe one day, when I'm ready to
learn the answer to what led him to kill those girls,
I'll read" the journals, Jason Ward said.
Sheldon Ward and his friend Cleve
Foster, an Army recruiter, were convicted of capital
murder for kidnapping, raping and shooting Pal. Two
workers laying water pipe had found her body the same
day she was killed in a remote area near Lake Worth.
At their separate trials, prosecutors'
evidence included DNA from semen found on Pal's body
that matched Ward's and Foster's. Also, witnesses told
police that Foster and Ward followed Pal from Fat
Albert's pool hall. The bullet used to kill Pal matched
the gun found in the motel room the men shared.
The two were also suspects in the
slaying of Rachel Urnosky, 22, who was raped and shot
dead in her bed on Dec. 18, 2001, at an apartment
complex in southwest Fort Worth.
Ward and Foster were never tried in
Urnosky's death, but evidence from that case was used
during the punishment phases of their trials in Pal's
Both men were appealing their death
Appeals continue for Foster, now 46.
His execution date has not been set.
Nor had Ward's execution date been
set when he died.
With his death, both sides got what
they wanted, Jason Ward said.
"This way, Texas gets its pound of
flesh, and my mother didn't have to see him executed,"
But Lloyd Whelchel, the Tarrant
County assistant district attorney who prosecuted both
men, said the victims' families were cheated.
"I think he was able to avoid justice,"
said Whelchel, whose only death penalty cases have been
Ward's and Foster's. "The victims' family didn't get a
chance to see him being executed."
Ward's brain tumor was diagnosed
shortly after he was sentenced in 2003, according to
appeals court documents. He had been having violent
seizures in his cell.
In 2005, a 3-centimeter lesion was
removed from his left posterior frontal lobe at the
University of Texas Medical Branch at Galveston,
The Star-Telegram requested Sheldon
Ward's medical records from the Texas Department of
Criminal Justice, but Jason Ward declined to give
permission. So it was unclear why the tumor was not
removed for two years or how Sheldon Ward received
cancer treatment during his seven years on Death Row.
While appealing Ward's death sentence, Arlington
attorney John Stickels said Ward had been showing signs
of illness during his trial. His trial lawyers could
have presented that to the jury, Stickels said.
"It is my belief that it played a
role in his behavior, and his health was a mitigating
factor on whether the jury should assess the death
penalty," Stickels said. "Unfortunately, they were never
able to consider it."
Jason Ward said he, too, believes
that the tumor affected his brother's behavior.
"Our family doesn't live in some
fantasy world," Ward said. "We believe there were
already some tendencies that existed. However, when the
function of the brain that prevents you from doing wrong
isn't operating, you're not going to make rational
Sheldon Aaron Ward was born Sept. 20,
1979, in Bellevue, Wash., the youngest of three boys.
Two half sisters were born later. When he was in high
school, the family moved to Manhattan, Kan. According to
prison records, Ward dropped out of high school in the
10th grade. After that, he moved around -- from
Washington to Kansas and in 1998 to Fort Worth.
Jason Ward said he and his brothers
endured years of alcohol, drug and physical abuse from
"Unlike the rest of us in the family,
Sheldon didn't know how to deal with adversity," Jason
Ward said. "Whenever we ran into issues we confronted
them; Sheldon would run and hide in a closet."
Other relatives testified to the same
thing at his trial -- that his mother, Stephanie Slifer,
was a neglectful alcoholic, his drug-abusing stepfather
was "mean" and that he lived for a while with an aunt
who practiced witchcraft and let her children and
Sheldon run wild.
Starting in his late teens, Ward kept
journals, and some of his writing ended up transcribed
into court records. He mused about nights of drug use
and random sex escapades. He also praised himself for
joining the Army Reserve.
His brother Brandon Ward testified
that Sheldon Ward came to Fort Worth in 1998 to be best
man at Brandon's wedding. Sheldon Ward stayed on in Fort
Worth, and for a while the brothers shared an apartment,
Brandon Ward testified.
In late 1998, he said, the brothers
After Sheldon Ward returned from
basic training, he began a relationship with a young
woman who later gave birth to his child, which several
relatives testified made him happier and more
But the couple split up, and Ward was
not allowed to see his baby. He became depressed and
angry again, his mother testified. About that time, Ward
also began socializing more with Foster.
Pam Urnosky, the sister of Rachel
Urnosky, said she is not sure how she feels about Ward's
"We believe in the death penalty, but
we're not a vindictive family," Urnosky said by phone
from her Lubbock home. "You take someone's life, you
will be held accountable.
"There will always be those lingering
questions I wanted answered. There were also hopes that
he might say that he's sorry.
"But for now, my last image of him is
not being very remorseful."
Jason Ward acknowledged that although
he wanted to understand what was in his brother's mind
when he killed women, "honestly, no matter what he told
me, it couldn't have explained what he did."
Pal's family could not be reached for
IN THE COURT OF CRIMINAL APPEALS OF TEXAS
SHELDON AARON WARD, Appellant
STATE OF TEXAS
Appeal of Case 0835934A of the
Criminal District Court Number One of
Womack, J., delivered the opinion for a
jury found the appellant guilty of the February 14,
2002, capital murder of Nyanuer Pal, and it rendered a
verdict on the issue of punishment that required the
trial court to sentence the appellant to death.
the appeal to this Court, which a statute requires,
appellant raises thirteen points of error. He does not
contest the sufficiency of the evidence. We affirm.
points of error four and five, the appellant claims that
the warrantless seizure and search of his luggage
violated the Fourth Amendment. Specifically, the
appellant objects to a pretrial ruling that allowed the
admission of photographs of the contents of his luggage,
which the officers who arrested him seized and searched
without a warrant.
The appellant was arrested in Joshua,
to which he had traveled as a passenger in a truck owned
and driven by Duane Thomas. Eight days after Ms. Pal was
murdered, the appellant called Thomas seeking his help.
Thomas picked up the appellant from his Fort Worth motel
room, intending to drive him to Thomas's home in Johnson
While en route, however, the
appellant told Thomas that he needed to leave town for
an extended time because he had kidnapped a young woman
at gunpoint, driven her out to a rural area, raped her,
stripped her naked, and shot her in the head. Thomas
decided to turn in the appellant to the police. Thomas
stopped at a convenience store in Joshua, told the
appellant he was going inside to buy cigarettes, and
called the police.
Joshua Police Department officers and
a Johnson County Sheriff's deputy arrived at the store
shortly thereafter. The sheriff's deputy questioned the
appellant, who said the only thing he would say to them
was that the Fort Worth Police Department had run a
search warrant on his residence and found a gun. The
sheriff's deputy made contact with the Fort Worth Police
Department, where Detectives John McCaskill and Cheryl
Johnson were investigating the murder of Ms. Pal. Both
detectives went to Joshua.
At the convenience store, Johnson
interviewed the appellant while he was seated in the
back of a police car. Meanwhile, Thomas showed McCaskill
the appellant's luggage, which was in the bed of
Thomas's truck. McCaskill seized the appellant's luggage
and returned to Fort Worth. Detective Johnson returned
to Fort Worth in a separate car, with the appellant in
At the Fort Worth Police headquarters,
McCaskill opened the appellant's luggage and
photographed its contents. Some of those photographs
were admitted into evidence at trial, over the
appellant's pretrial motion to suppress. The appellant
asserts that the trial court erred in admitting the
photographs, as they were obtained through a violation
of the Fourth Amendment.
Before we address the appellant's
Fourth Amendment claims, we note that the harm analysis
for the erroneous admission of evidence obtained in
violation of the Fourth Amendment is the constitutional
standard set forth in Rule of Appellate Procedure
the record shows that the trial court erred in admitting
the photographs, this Court will reverse the appellant's
conviction or punishment unless we determine beyond a
reasonable doubt that the error did not contribute to
the appellant's conviction or punishment.
Assuming, arguendo, that the appellant's Fourth
Amendment rights were violated, reviewed as a whole, we
find that any possible error in admitting the
photographs of the contents of the appellant's luggage
was harmless beyond a reasonable doubt. Here,
McCaskill's search of the appellant's luggage yielded
two types of evidence that were introduced at different
portions of the trial and for different purposes. First,
during the guilt phase, the State introduced photographs
of a bedroll and other items suggesting that the
appellant was traveling.
appellant contends that the bedroll was used to support
the State's argument that the appellant was fleeing.
Second, during the punishment phase, the State
introduced photographs of sexually oriented magazines
from the appellant's luggage. The appellant alleges that
these images were unfairly prejudicial, given the
allegations that he had sexually assaulted and murdered
two young women.
We turn first to the photographs of
the appellant's bedroll and other travel items.
Reviewing the record, while these photographs may have
been evidence of the appellant's intent to flee, such
intent was shown by other admissible evidence as well,
namely the testimony of McCaskill and Thomas.
Additionally, the luggage itself, unopened, was
probative of the same factor and could have been validly
introduced by the State.
Finally, the photographs of the
appellant's travel gear could have had only a minimal
effect on the jury's finding of guilt, given the
combined weight of the other evidence presented by the
State: DNA evidence connecting the appellant to Ms.
Pal's body, eyewitness testimony of the appellant being
seen following Ms. Pal in her car shortly before her
death, the recovered gun from the appellant's residence
matching the caliber of the bullet recovered from Ms.
Pal's body, and Thomas's testimony as to the appellant's
own confession of guilt.
Likewise, the photographs introduced
at the punishment phase were of insufficient consequence
to the adjudication of punishment. It is unclear from
the record for what purpose the photographs were
introduced. Nevertheless, like the photographs of the
magazines, any prejudicial effect they may have had on
the jury was likely minimal, and far outweighed by the
other evidence presented during the punishment phase.
For example, while the photographs
may have been sexually provocative, they were not the
only sexually provocative photographs presented during
the trial. During the punishment phase, the State
presented a separate photograph of a sexual device taken
from the appellant's former residence.
Thus, even if it were true that the
appellant was prejudiced by sexually provocative
evidence presented during his trial, the photographs of
his magazines were only one piece of sexually
provocative evidence that the jury may have considered
in assessing punishment. The appellant argues that the
admitted photographs contributed to his conviction and
sentence because they were "especially provocative and
unduly prejudicial given two alleged murders against
female victims that contained the capital aggravating
element of aggravated sexual assault."
appellant does not, however, explain how the photographs
of his magazines were any more prejudicial than any of
this other evidence. Since any possible error in
admitting the evidence was harmless beyond a reasonable
doubt, we do not need to address the merits of the
appellant's Fourth Amendment claims. We overrule points
of error four and five.
In point of error six, the appellant
claims that the warrantless seizure of his automobile,
which yielded evidence used against him at trial, was
also in violation of his Fourth Amendment rights. We
need not address this issue, however, because the
appellant has not preserved it for review.
The record shows that the appellant
objected to the introduction of State's Exhibit 43: a
sealed plastic bag containing a paper bag of clothing
and other items taken from the appellant's car and
offered during the direct examination of Officer Brad
Patterson. That objection was overruled and State's
Exhibit 43 was admitted into evidence. Later, the State
conducted direct examination of its own DNA expert, who
testified as to the results of tests conducted on
clothing items found in State's Exhibit 43. The State
then offered individual cuttings from those same
clothing items into evidence as separate exhibits,
during the following exchange:
[Prosecutor]: Did you take, I'm going
to use the word cuttings from these jeans and the socks
that are contained in State's 43?
[Witness]: I did.
Q: Let me show you State's 56 and 57.
Tell me if you recognize those.
A: I do.
Q: What are those?
A: State's Exhibit 56 is the cutting
from a pair of blue jeans that I took, and State's No.
57 is the cuttings from the socks.
[Prosecutor]: Judge, at this time the
State would offer 57 and 56.
(State's Exhibit Nos. 56 - 57 offered.)
[Defense Counsel]: No objection,
[The Court]: State's Exhibits 56 and
57 are admitted.
When an accused affirmatively asserts
at trial that he has "no objection" to the admission of
complained of evidence, he waives any error in the
admission of the evidence.
error that defense counsel may have preserved in the
present case by objecting to State's Exhibit 43 was
waived when defense counsel clearly stated, "No
objection" to the admission of the same evidence in
State's Exhibits 56 and 57. We overrule point of error
In point of error seven, the
appellant complains of the search warrant used to obtain
biological evidence taken from his person. The appellant
argues that the probable cause affidavit for the
warrants violated the Fourth Amendment because it
omitted certain facts. McCaskill testified at a pretrial
hearing that, a few days before submitting his affidavit,
he received interoffice correspondence from another
police officer, who had taken the statement of a witness
who had reported seeing a nude, black female being
chased by a black male who was carrying a handgun. She
heard a gunshot shortly thereafter. This chase took
place near the scene of the murder. The appellant is not
black. McCaskill acknowledged at the hearing that he
chose not to include this information in his probable
A search warrant may be issued only
if it is supported by probable cause.
Sufficient probable cause to issue a search warrant must
be established by an affidavit setting forth sufficient
United States Supreme Court has held that an affirmative
misrepresentation of a material fact that establishes
probable cause, made knowingly or recklessly in a
probable cause affidavit, will render a search warrant
invalid under the Fourth Amendment.
Fifth Circuit has applied the same analysis to omissions
of material facts.
This Court has yet to state clearly that Franks
should apply to omissions as well.
need not decide that issue today, however, as the
appellant has failed to meet his initial burden of
proving that the omitted facts in his case were material
to the establishment of probable cause to search his
Franks requires that the
defendant be granted a hearing to present evidence on
the issue of whether a misrepresentation was knowingly
and falsely made in a probable cause affidavit and
whether it was material to the establishment of probable
cause, such that any evidence derived from that search
warrant should be suppressed.
Martin purports to extend that same analysis to
the omission of material facts.
defendant establishes by a preponderance of the evidence
that in a probable cause affidavit, first, omissions of
fact were made, and second, such omissions were made
intentionally or with a reckless disregard for the truth,
the warrant will be held invalid if the inclusion of the
omitted facts would vitiate probable cause.
Here, even if the omission of material facts from an
affidavit were sufficient to vitiate probable cause, the
appellant has not met his burden of showing by a
preponderance of the evidence that the omitted facts in
this case were material in nature.
McCaskill's affidavit relied on his
interviews of three eyewitnesses who saw the appellant
at a bar with Ms. Pal only hours before her body was
discovered. Two of the eyewitnesses were employees of
the bar who recognized the appellant as a frequent
customer, and one of them also had seen the appellant
leave the bar in a truck following Ms. Pal as she left
in her car. McCaskill also had been told by the Tarrant
County Medical Examiner that pubic hairs not belonging
to Ms. Pal were found in her vaginal vault, and that
this suggested there had been sexual contact between Ms.
Pal and some unknown individual prior to her death. A
reasonable trier of fact could have found sufficient
probable cause existed for McCaskill to obtain
biological evidence from the appellant based on these
facts, and the appellant presents no evidence to
challenge any of these facts.
Appellant points to the omitted
witness statement to suggest that there was some
material evidence contradictory to the appellant's being
with the victim near the time of her death. The witness
reported seeing the nude female being chased on "Tuesday
February 12 or on Wednesday [the] 13, 2002 at about
20:30 hours." All three eyewitnesses in McCaskill's
affidavit, on the other hand, reported seeing Ms. Pal in
the company of the appellant at a bar on the night of
February 13, 2002, and continuing until the bar closed
at 2:00 a.m. on February 14, 2002. Her body was found at
approximately 10:00 a.m. on February 14.
The appellant has failed to show by a
preponderance of the evidence that the omitted facts
were material to the establishment of probable cause to
obtain evidence from his person. Thus, the trial court
was within its discretion to overrule the appellant's
motion to suppress. As with any motion to suppress
evidence, great deference is owed to the trial court as
the sole fact-finder and judge of the witness's
This Court is not at liberty to disturb any finding
supported by the record.
overrule point of error seven.
Punishment Phase Issues
In point of error one, the appellant
contends that the trial court abused its discretion by
admitting evidence at the punishment phase of the
extraneous offense of the murder of Rachel Urnosky,
because the State failed to sufficiently prove the
appellant was linked to the offense. The record shows
that, during the punishment phase of the trial, the
appellant waited until the State had rested its
punishment case-in-chief before moving to strike the
testimony of all nine witnesses whom the State had
called to testify on the issue of the appellant's
alleged involvement in Urnosky's murder.
The appellant argued that, because
the State had failed to establish a sufficient nexus
between the appellant and the extraneous offense, all
testimony regarding the extraneous offense should be
struck from the record on relevancy grounds. The
appellant did not object to any part of the nine
witnesses' testimony as it was being presented.
For appellate review in criminal
cases, an error in admitting evidence must be preserved
by a proper objection and a ruling on that objection.
The objection must be timely; that is, the defense must
have objected to the evidence, if possible, before it
was actually admitted.
this was not possible, the defense must have objected as
soon as the objectionable nature of the evidence became
apparent and must have moved to strike the evidence,
that is, to have it removed from the body of evidence
the jury is allowed to consider.
In this case, the record shows that
the appellant made no objection to any of the
complained-of evidence as it was presented through the
testimony of nine separate witnesses. Rather, he waited
until the State had rested its punishment case-in-chief
before moving to strike the testimony of all nine
witnesses at once on the grounds that their combined
testimony had failed to sufficiently connect Ward to
Urnosky's death and was therefore entirely irrelevant.
The appellant directs us to
Fuller v. State
to support his argument that, because there was no way
he could have realized the irrelevance of the State's
evidence until hearing it, he could validly make a
"summary" motion to strike at the end of the State's
The appellant's reliance on
Fuller is misplaced. In Fuller, the
appellant argued that the trial court had erred in
admitting evidence of his alleged membership in the
Aryan Brotherhood gang during the punishment phase of
The trial court had allowed the State to develop its
argument under the "conditional relevance procedure" in
which the State would bear the burden of later proving
the relevance of its evidence against a motion to
Although this Court agreed that the evidence presented
by the State was "woefully insufficient" to connect the
appellant to membership in the Aryan brotherhood, we
nevertheless refused to exclude the testimony because,
after all the objectionable evidence had been presented,
the defense failed to reurge its relevancy complaint,
move to strike the evidence, and ask for a jury
instruction to disregard.
opposed to the case at hand, where the appellant made no
objection at all until the motion to strike, the
appellant in Fuller made repeated objections to
the evidence as it was presented. The only question in
that case was whether the numerous trial objections
constituted, in the aggregate, a valid motion to strike.
Reluctantly, this Court held that they did not.
appellant in the present case misstates Fuller
as standing for the premise that he could wait and
object to the relevance of all such evidence with one
summary motion to strike. Fuller provides no
such exception to the contemporaneous objection rule. We
overrule point of error one.
In points of error two and three, the
appellant contends that the trial court erred in ruling
that he would be compelled to undergo state-sponsored
psychiatric examination if he presented mental health
expert testimony on the mitigation special issue at the
punishment phase. Specifically, the appellant attempted
to present the testimony of Robin Neely, a social worker
who was to testify as to her opinion of the appellant's
dysfunctional family background, based on her
independent review of a social history and psychiatric
evaluation of the appellant conducted by others.
The State objected to the appellant's
offer of Neely's expert opinion until the State had an
opportunity to have its own psychiatric expert evaluate
the appellant. The trial court sustained the objection
and the appellant, rather than submit to examination by
the State's expert, chose not to present Neely's
In point two, appellant argues that
it was error for the trial court to exclude this expert
since his testimony was limited to the mitigation
special issue. In Lagrone v. State,
this Court held that a trial court may order a criminal
defendant to submit to a state-sponsored psychiatric
exam on future dangerousness when the defense
introduces, or plans to introduce, its own future
dangerousness expert testimony.
principle behind the holding is that, while the
defendant does not actually waive his Fifth Amendment
rights until he presents such testimony, the unique
circumstances of the situation necessitate a "legal
fiction" in which a limited waiver of the defendant's
Fifth Amendment rights is inferred by the indication of
his intent to present such testimony.
The appellant here argues that Lagrone applies
only to cases in which the defendant attempts to present
testimony on the specific issue of future dangerousness,
and not to cases such as his, in which the expert will
testify as to mitigating factors.
We are not persuaded that Lagrone
is so limited. In Chamberlain v. State,
the defendant likewise argued at trial that he should be
allowed to present the testimony of a psychiatric expert
who had examined him, without being forced to submit to
examination by the State's own psychiatric expert. The
defendant in Chamberlain attempted to
distinguish his own case from Lagrone by noting
that his expert would testify only in rebuttal to the
testimony of the State's expert witness, and not to
introduce his own psychiatric evidence. This Court
rejected such a distinction:
The holdings of Soria and
Lagrone are governed by the principle that if a
defendant breaks his silence to speak to his own
psychiatric expert and introduces that testimony which
is based on such interview, he has constructively taken
the stand and waived his fifth amendment right to refuse
to submit to the state's psychiatric experts. The focus
is the defendant's choice to break his silence.
The issue is not whether appellant
introduced psychiatric evidence or merely rebutted such
evidence. The issue is whether the psychiatric testimony
he intended to introduce was based on his own
participation in the psychiatric testing and examination.
Appellant intended to introduce psychiatric testimony
based upon his participation in a psychiatric
examination. This "constituted a waiver of the
defendant's fifth amendment privilege in the same manner
as would the defendant's election to testify at trial."
Soria v. State, 933 S.W.2d 46, 54 (Tex. Cr. App.
1997). Appellant cannot claim a fifth amendment
privilege in refusing to submit to the State's
psychiatric examinations and then introduce evidence
gained through his participation in his own psychiatric
examination. The essential principles at work in
Lagrone and Soria are waiver and parity;
if a defendant testifies, even in mere rebuttal, the
State may be allowed to cross-examine him.
As Chamberlain makes clear, principles of fairness allow
a trial court to compel a defendant to submit to
examination by the State's psychiatric expert as a
condition of allowing that defendant to present
psychiatric testimony by his own expert. As stated in
Lagrone, "Our sense of justice will not tolerate
allowing criminal defendants to testify through the
defense expert and then use the Fifth Amendment
privilege against self-incrimination to shield
themselves from cross-examination on the issues which
they have put in dispute." (31) If
a defendant wishes to present expert psychiatric
testimony, then the State is entitled to have its own
psychiatric expert examine the defendant as a
precondition to allowing that testimony. The nature of
the psychiatric testimony to be presented is immaterial-that
it is being presented by the defendant is enough to
trigger the rule. We overrule point of error two.
In point of
error three, the appellant also argues that the trial
court's ruling violated his constitutional right to
present a defense under the Sixth Amendment.
(32) A defendant's right to present relevant
evidence is not unlimited, but rather is subject to
reasonable restrictions. (33) State
and federal rulemakers have broad latitude under the
Constitution to establish rules excluding evidence from
criminal trials. (34) Such rules do
not abridge an accused's right to present a defense so
long as they are not "arbitrary" or "disproportionate to
the purposes they are designed to serve."
(35) We have found the exclusion of evidence to be
unconstitutionally arbitrary or disproportionate only
where it has infringed upon a weighty interest of the
Here, the trial
court applied the holding of Lagrone that defendants who
present expert testimony as to their mental health
status may be compelled to undergo examination by the
State's mental health expert under a theory of limited
Fifth Amendment waiver. The appellant does not point us
to any authority showing this rule to be arbitrary or
disproportionate to its purposes of waiver and parity,
nor does anything in the record support such an
assertion. Moreover, even if the trial court committed
error in imposing this condition upon the appellant, we
have held that such error does not become a
constitutional violation unless: (1) the evidentiary
rule categorically and arbitrarily prohibits the
defendant from offering relevant evidence that is vital
to his defense, or (2) the trial court erroneously
excludes relevant evidence that is a vital portion of
the case, effectively precluding the defendant from
presenting a defense. (37)
was allowed to present evidence of his family background
as relevant to the mitigation special issue through the
testimony of three witnesses. His mother, Stephanie
Slifer, testified that during his childhood, the
appellant experienced her divorce from his father, his
stepfather's drug use (as well as her own), and the
pernicious influence of her sister Charlene, with whom
the appellant briefly resided as a teenager. His aunt,
Brenda Knauer, corroborated her sister Stephanie's
testimony as to drug use in the home and the negative
influence of the appellant's aunt (and her own sister)
friend, Kyle Kraft, also testified as to the negative
influence of the appellant's time living with his Aunt
Charlene, and that he and the appellant had used illegal
drugs as teenagers. Taken as a whole, this was ample
evidence of the appellant's troubled childhood for the
jury to consider in assessing punishment. Thus, it
cannot be said that the trial court's ruling on Neely's
testimony effectively deprived appellant of the
opportunity to present any evidence on the issue of
mitigation, or to present a defense generally. We
overrule point of error three.
In point of
error eight, the appellant contends that it was an abuse
of discretion for the trial court to admit testimony by
the State's psychiatric expert on future dangerousness.
The appellant argues that the testimony of the State's
witness on the issue of future dangerousness, Dr. David
Self, should have been struck because the State failed
to show that it would aid the jury in any appreciable
argument is without merit. Dr. Self's testimony related
directly to the appellant's tendency towards violent,
predatory acts, based upon the offense report of this
case as well as interviews he conducted with people who
know the appellant. That Dr. Self did not interview the
appellant did not make his testimony inadmissible. It is
settled in this State that psychiatric expert opinion
testimony of a defendant's future dangerousness may be
based solely upon hypothetical questions, without the
benefit of an examination of the defendant.
(39) The trial court was within its discretion to
admit Dr. Self's testimony on this issue. We overrule
point of error eight.
In point of error nine, the appellant argues that the
Texas death penalty statute violates the prohibition
against cruel and unusual punishment found in the Eighth
Amendment to the United States Constitution because it
allows the jury too much discretion to decide who lives
or dies, without the minimal standards and guidance
necessary to avoid arbitrary and capricious imposition
of the death penalty upon defendants like himself.
He argues that the definition of "mitigating
circumstances" under the Texas statute is ambiguous,
thus allowing juries to sentence defendants to death
under no consistent standards. (40)
We have previously considered and rejected identical
arguments. (41) The appellant makes
no new arguments specifically relating to his case. We
overrule point of error nine.
In point of
error ten, the appellant argues that the Texas death
penalty statute violates the Eighth Amendment because
instructions on the mitigation special issue send "mixed
signals" to the jury thereby rendering any verdict
reached in response to that special issue intolerably
unreliable. (42) This Court has
previously addressed and rejected this claim.
(43) We overrule point of error ten.
In point of
error eleven, the appellant argues that the Texas death
penalty statute violates the Due Process Clause of the
Fourteenth Amendment to the United States Constitution
because it improperly places the burden of proof for the
mitigation special issue on the appellant rather than
requiring the State to prove to the jury that there were
no mitigating factors beyond a reasonable doubt.
considered and rejected this exact argument in Jones.
(45) We held there that Apprendi is inapplicable to
Article 37.071 because the Texas statute does not allow
for any enhancements beyond the statutory maximum
penalty of death. Rather, under the Texas statute, a
jury finding on the special issue of mitigation can
serve only to reduce the statutory sentence to life
imprisonment. Thus, no Apprendi issue is present.
(46) We overrule point of error eleven.
point of error twelve, the appellant argues that the
Texas death penalty statute violates both the Eighth
Amendment and the Due Process Clause of the Fifth
Amendment to the United States Constitution because it
leads to the execution of an unacceptable number of
innocent defendants. Additionally, in point of error
thirteen, the appellant argues that the Cruel and
Unusual Punishments Clause of the Eighth Amendment and
the Due Process Clause of the Fifth Amendment compel the
courts to determine and redetermine the
constitutionality of the death penalty according to "evolving
standards of decency and current knowledge about its
operation." The appellant does not, however, make any
argument claiming his own innocence in this case, and
therefore fails to show how his own rights under the Due
Process Clause could have been violated by the
application of our death penalty statute.
(47) We overrule points of error twelve and thirteen.
The judgment of
the trial court is affirmed.
Delivered: May 23, 2007
1. See Code Crim. Proc. art. 37.071, � 2(b), (e),
2. Id., � 2(h).
3. Hernandez v. State, 60 S.W.3d 106, 108 (Tex. Cr.
App. 2001); R. App. Proc. 44.2(a).
4. Appellant's brief, at 40.
5. Jones v. State, 833 S.W.2d 118, 126 (Tex. Cr. App.
1992); Dean v. State, 749 S.W.2d 80, 83 (Tex. Cr. App.
6. U.S. Const. amend. IV; Tex. Const. Art. I, � 9;
Code Crim. Proc. art. 18.01(b); Hughes v. State, 843 S.W.2d
591, 593 (Tex. Cr. App. 1992).
7. Code Crim. Proc. art. 18.01(c).
8. Franks v. Delaware, 438 U.S. 154, 155-56 (1978).
9. United States v. Martin, 615 F.2d 318, 328 (Fifth
10. Massey v. State, 933 S.W.2d 141, 146 (Tex. Cr.
11. See id. at 146-47.
12. Franks, 438 U.S. at 156.
13. Martin, 615 F. 2d at 328.
15. Janecka v. State, 937 S.W.2d 456, 462 (Tex. Cr.
App. 1996); Fierro v. State, 706 S.W.2d 310, 316 (Tex.
Cr. App. 1986).
16. Flores v. State, 871 S.W.2d 714, 721 (Tex. Cr.
17. R. App. Proc. 33.1(a); Moff v. State, 131 S.W.3d
485, 489 (Tex. Cr. App. 2004); Valle v. State, 109 S.W.3d
500, 509 (Tex. Cr. App. 2003); Ethington v. State, 819
S.W.2d 854, 858 (Tex. Cr. App. 1991).
18. Ethington, 819 S.W.2d, at 858.
20. Kemp v. State, 846 S.W.2d 289, 307 (Tex. Cr. App.
1992); Code Crim Proc. art. 37.071, � 2(a).
21. 829 S.W.2d 191 (Tex. Cr. App. 1992).
22. Id. at 195-96.
23. Id. at 197; R. Crim. Evid. 104(b).
24. Id. at 198-99.
26. 942 S.W.2d 602 (Tex. Cr. App. 1997).
27. Id. at 611 (emphasis omitted).
29. 998 S.W.2d 230 (Tex. Cr. App. 1999).
30. Id. at 234 (emphasis added).
31. Lagrone, 942 S.W.2d, at 611.
32. Washington v. Texas, 388 U.S. 14 (1967); Miller
v. State, 36 S.W.3d 503, 506 (Tex Cr. App 2001).
33. Potier v. State, 68 S.W.3d 657, 659 (Tex. Cr.
App. 2002) (citing United States v. Scheffer, 523 U.S.
303, 308 (1998)).
36. Id. at 659-60.
37. Ray v. State, 178 S.W.3d 833, 835 (Tex. Cr. App.
2005); Valle v. State, 109 S.W.3d 500, 506 (Tex. Cr. App.
2003); Potier, 68 S.W.3d, at 659-62.
38. R. Evid. 702.
39. Cook v. State, 858 S.W.2d 467, 475 (Tex. Cr.
App. 1993); Pyles v. State, 755 S.W.2d 98, 118 (Tex. Cr.
40. Code Crim. Proc. art. 37.071 � 2(e)(1).
41. See Moore v. State, 999 S.W.2d 385, 408 (Tex. Cr.
App. 1999); Poindexter v. State, 942 S.W.2d 577, 587 (Tex.
Cr. App. 1996).
42. See Penry v. Johnson, 532 U.S. 782 (2001).
43. Scheanette v. State, 144 S.W.3d 503, 506 (Tex.
Cr. App. 2004); Jones v. State, 119 S.W.3d 766, 790 (Tex.
Cr. App. 2003).
44. See Apprendi v New Jersey, 530 U.S. 466 (2000).
45. Jones, 119 S.W.3d, at 791.
47. Paredes v. State, 129 S.W. 3d 530, 541 (Tex. Cr.