In the Court of Criminal
Appeals of Texas
Christopher Anthony Young, Appellant,
The State of Texas
On Direct Appeal from Cause No. 2005-CR.1183 in
the 187th District Court
Cochran, J., filed a concurring
opinion. Price, J., filed a dissenting opinion. Keasler, J.,
concurred in the result with respect to point of error fifteen and
otherwise joined the opinion. Hervey, J., did not participate.
O P I N I O N
The appellant was convicted in
February 2006 of capital murder.
Based upon the jury's answers to the special issues set forth in
Texas Code of Criminal Procedure article 37.071 §§2(b) and 2(e),
the trial judge sentenced the appellant to death.
(2) Direct appeal
to this Court is automatic.
reviewing the appellant's fifteen points of error,
we find them to be without merit. Consequently, we
affirm the trial court's judgment and
sentence of death.
The appellant challenges the
sufficiency of the evidence at both phases of trial. We shall
address these issues first. The remaining points of error will be
addressed in the order presented in the briefs.
In points of error one and two, the appellant contends that the
evidence is both legally and factually insufficient to prove that
he committed capital murder. He argues that the State's primary
evidence, the store surveillance video, is not enough, legally or
factually, to convict him of murdering the victim "while in the
course of committing or attempting to commit the offense of
the appellant asserts that: (1) the tape's video sequence does not
include conduct by the appellant that would imply that he was
robbing or attempting to commit a robbery at the victim's store;
and (2) the tape's sound in the corresponding audio is so "muddled"
that it would be almost impossible for the jury to decipher any
recorded dialogue that indicates that the appellant was in the
course of committing robbery or attempting to commit robbery at
the victim's store. The appellant also claims that the eyewitness
testimonies of convenience store patrons, Raul Vasquez, Jr. and
Hattie Helton, contributed little, if any, evidence to prove that
the murder occurred in the course of a robbery.
The evidence at trial established that on November 21, 2004,
within minutes of stealing a red Mazda Protégé from its owner at
gunpoint, the appellant drove the stolen vehicle to the mini-mart/dry
cleaners owned by Hasmukhbhai Patel.
The following events were captured on the store's surveillance
(5) the appellant,
wearing a black shirt and light-colored shorts, entered the store
at 9:37 a.m. and appeared to be holding something hidden within
his left pocket. The appellant looked around the front of the
store before moving behind Patel, who was working in the rear of
the store. The appellant asked Patel the cost of cleaning clothes
at the store. The appellant's voice immediately changed to a lower
tone, and the appellant stated, "Alright [sic], give up the money.
I'm not playing. I'm not fucking playing." Patel came into view as
he quickly moved behind the counter towards the cash register, and
the appellant could be seen leaning over the front counter with
his left arm completely extended, pointing a silver handgun at
Patel. Again, the appellant ordered Patel to "give up the money,"
followed by the appellant's firing his first shot in the direction
of Patel (now out of view behind the cash register). The appellant
then yelled, "You be fucking up. I'm not playing. Give it up!" He
fired a second shot in the direction of Patel. At this point, the
alarm went off as Patel had apparently pushed the panic button on
the system. The appellant, with his handgun still extended,
followed the fleeing Patel to the opposite side of the front
counter, and he could be heard over the alarm shouting, "I said
give up the money, right." The video caught the appellant's
movement behind the counter in the direction of the cash register.
He was out of view for a few seconds before coming back into view
and was then seen concealing his handgun under his shirt as he
left the store.
Two of Patel's regular customers,
Raul Vasquez, Jr. and Hattie Helton, happened to be in the parking
lot of the store at the time of the offense. Vasquez had just
pulled into a parking space in front of the store. Before he could
exit his truck, he heard gunshots and looked up to see a black
male leaning over the counter firing a gun at Patel. When the
gunman left the store and got into a small red car, Vasquez called
the police and then chased the gunman, but with no success.
Vasquez was able to tell the police that the car's license plate
had a "W" and that the perpetrator was wearing a black shirt and
light-colored shorts. Helton, who was parked directly in front of
the door, had just exited the store moments earlier and was in her
car checking her "scratch-off" lottery tickets. When she heard the
store alarm go off, she looked up to see a black male exit the
store and get in a small red car that was parked by the gas pumps.
Once he was gone, Helton exited her car and called to Patel. When
he did not answer, Helton called the police on a payphone located
outside of the store. Both Vasquez and Helton identified the
appellant as the perpetrator at trial.
The appellant was apprehended at
approximately 11:00 a.m. when an officer spotted the red car
parked at a house several miles away. The car's license plate
began with a "W." The appellant was wearing a black shirt and
light-colored shorts. The appellant's hands, shirt, and the
steering wheel of the car all tested positive for gunshot residue.
Patel's blood was found on one of the appellant's socks. Patel
died from the gunshot wound to his chest. The murder weapon was
In reviewing a claim that
evidence is legally insufficient to support a judgment, "the
relevant question [on appeal] is whether, after viewing the
evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt."
This standard accounts for the factfinder's duty "to resolve
conflicts in the testimony, to weigh the evidence, and to draw
reasonable inferences from basic facts to ultimate facts."
analyzing the legal sufficiency, we will determine whether the
necessary inferences are reasonable based upon the combined and
cumulative force of all the evidence, both direct and
circumstantial, when viewed in the light most favorable to the
In a factual-sufficiency review,
the evidence is reviewed in a neutral light rather than in the
light most favorable to the verdict.
can be factually insufficient in one of two ways: (1) when the
evidence supporting the verdict is so weak that the verdict seems
clearly wrong and manifestly unjust, and (2) when the supporting
evidence is outweighed by the great weight and preponderance of
the contrary evidence so as to render the verdict clearly wrong
and manifestly unjust.
Although an appellate court's factual-sufficiency review of the
evidence allows the court to second-guess the jury to a limited
degree, the review should still be deferential to the jury's
Capital murder occurs when a person intentionally commits murder
while in the course of committing or attempting to
(12) The State
did not bear the burden of proving that the appellant completed
the theft of the victim in order to establish the underlying
offense of robbery or attempted robbery.
Rather, the requisite intent to rob may be inferred from
circumstantial evidence, particularly the appellant's assaultive
case, there was ample evidence, circumstantial and direct, of
assaultive conduct characteristic of attempted robbery displayed
by the appellant in the store surveillance tape.
Despite the video sequence being
short, and the events occurring quite fast, there is sufficient
evidence on the surveillance tape that a jury could reasonably
infer that the appellant murdered Patel in the course of an
attempted robbery. Assaultive conduct, the gravamen of robbery, is
demonstrated in the video by the appellant holding Patel at
gunpoint after demanding the surrender of his money, forcing him
behind the counter, and firing shots at Patel in
response to his apparent refusal to give up the money. Vasquez's
testimony that he saw a black man leaning over the front counter
shooting at Patel is further evidence of assaultive conduct
typical of a robbery.
The appellant insists the tape is devoid of "many of the hallmarks
of robbery." To the contrary, the tape clearly evidences the
appellant making several statements demonstrative of robbery, such
as: "Alright [sic], give up the money. I'm not playing. I'm not
fucking playing," and in the midst of firing shots at Patel
shouting, "You be fucking up. I'm not playing. Give it up!" and,
"I said give up the money, right." The appellant attacks the
clarity of the dialogue between himself and Patel, most notably by
his reference to State's witness Detective Sean Walsh's admission
that he was unable to understand what was being said on the
videotape. However, the jury had the opportunity to listen to the
audio numerous times: during the presentation of evidence, during
the State's closing arguments, and during its deliberations.
(16) The jury
could reasonably infer that the appellant intentionally committed
murder in the course of committing or attempting to commit robbery
based upon the combined and cumulative force of all the
(17) Because we
view the evidence in the light most favorable to the verdict, and
we find that a rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt, we hold
that the evidence was legally sufficient to support the jury's
guilty verdict in this case.
(18) Even in
considering all the evidence in a neutral light, we find that the
evidence was not so weak nor so outweighed by the great weight of
contrary evidence as to make the verdict seem clearly wrong and manifestly
(19) Thus, the evidence was
factually sufficient to support the verdict. The appellant's first
and second points of error are overruled.
In point of error eleven, the appellant challenges the sufficiency
of the evidence regarding future dangerousness.
the sufficiency of the evidence at the punishment phase, we view
the evidence in the light most favorable to the verdict and
determine whether any rational trier of fact could make the
finding beyond a reasonable doubt.
(21) A jury is
permitted to consider a variety of factors when determining
whether a defendant will pose a continuing threat to society.
In its determination of the special issues, the jury is entitled
to consider all the evidence presented at the guilt phase of the
trial, in addition to the evidence presented at the punishment
circumstances of the offense and the events surrounding it may be
sufficient in some instances to sustain a "yes" answer to the
future-dangerousness special issue.
The evidence in the instant case
revealed that, immediately after he stole a car from a woman at
gunpoint, the appellant drove to Patel's store, demanded money,
and then shot Patel dead when Patel did not cooperate quickly
enough. The appellant then left the store, disposed of his weapon,
and picked up a prostitute with whom he could do drugs. This
evidence of such a callous crime might alone support a finding of
future dangerousness. However, the State presented further
evidence that, immediately prior to the instant crime, the
appellant also committed aggravated sexual assault on the woman
from whom he stole the red Mazda Protégé.
At approximately 8:45 a.m. on November 21, 2004, Daphne Edwards
was serving breakfast to her three young girls, all under the age
of eight, when she realized that she was out of cigarettes.
Edwards decided to leave her efficiency apartment and quickly
drove to Patel's store about one block away while the children
were eating. She was gone less than five minutes. Upon returning,
she parked in front of the apartment and went straight inside.
Almost immediately after her return, there was a knock on her door.
Thinking it was her sister, Edwards opened the door to find the
appellant standing there pointing a silver revolver at her. The
appellant put the gun to Edwards' head, pushed his way in and
asked her, "Where's the fucking money?" The appellant walked
Edwards through the apartment at gunpoint to make sure no one else
was home other than the children and that there was no access to a
phone. The three children were scared and crying. Edwards gave the
appellant all the money that she had in her purse - $28 - but he
told her that she had to give him something else because that was
not enough money. The appellant then told Edwards to undress. He
had Edwards tell her girls to go to the other room; however, as it
was an efficiency apartment the girls could still see and hear
everything that happened. The appellant then told Edwards that she
was not disrobing quickly enough, so he shot the gun into the
floor next to her feet. Edwards disrobed, and the appellant made
her sit in a chair and perform oral sex on him. The appellant then
made Edwards walk to the bathroom where the children could not
fully see what was happening but the appellant could see the
children. The appellant then made Edwards get on her knees and
perform oral sex on him again.
appellant then decided that he wanted Edwards to wear something
"sexy" for him, so he took her back out of the bathroom to get her
clothes. Edwards picked out an outfit but the appellant thought it
was too long, so she picked out another outfit. He made her put on
this outfit but did not allow her to put on any underwear. The
appellant then decided that he wanted to leave. When Edwards
protested that she would not leave her children, the appellant
told her, "You did it before. I saw you." The appellant then
walked over to the children and kissed each of them on the cheek
and told them that their mommy would be back.
The appellant then forced
Edwards, still at gunpoint, to leave the apartment and get into
her red Mazda Protégé. He had her drive to the front of the
apartment complex, at which point he decided that he wanted to
drive. As he was getting out of the car, he told Edwards not to
drive off or he would go back and kill her children. He told her
to move to the passenger seat. As he was getting into the driver's
seat, Edwards took the opportunity to escape - the appellant had
left the passenger door open and Edwards saw some people in the
parking lot. She ran screaming to her cousin's apartment at the
front of the complex where they called the police and then went to
get the children. The appellant drove off in Edwards' car.
In addition to this evidence,
the State also presented the appellant's previous convictions for
possession of marijuana, evading arrest, and three assaults with
bodily injury, two involving injury to his mother when he was a
juvenile. The third assault occurred in September 2004 and
involved his girlfriend, Chala Riley, who was eight-months
pregnant at the time. In order to stop the assault, Riley lied and
told the appellant that she was going into labor. Further, the
night before the instant offense, the appellant accosted the same
girlfriend after she informed him that she was permanently
breaking off their relationship. The appellant pulled her out of
her car, beat her, and then took her car, purse, and cell phone.
Other evidence showed that the appellant shot at another person in
a parking lot on May 9, 2004, but charges were never filed.
Appellant presented evidence of
a tumultuous childhood. When he was eight years old, his father
was murdered and his sister was molested and impregnated by his
stepfather. Appellant argued that he never recovered
from these events emotionally as he never received the
counseling or the father figures that he needed. He became angry
and withdrawn and began using drugs. However, the appellant's
mother, new stepfather, aunt, and grandmother all testified to the
appellant's good side and how they were all shocked and surprised
by the instant offense. The appellant had just had two children, a
daughter born in June and another in September, and he was
attempting to get custody of one of the girls prior to the offense.
The appellant also presented evidence that he had told a
psychologist that he had consumed fifteen to twenty beers and
smoked marijuana the night before the instant offense, and that he
smoked crack cocaine the morning of the offense. The appellant
further pointed out that he committed no acts of violence or even
infractions during his fourteen months of incarceration while
waiting for his trial. The appellant argues that this evidence
should outweigh the evidence presented by the State.
While intoxication at the time of the offense and good
behavior in prison are factors that a jury might consider, neither
precludes a finding of future dangerousness.
We have held that, while this Court can review the objective
evidence of future dangerousness, we do not engage in reviewing
the jury's normative decision on mitigation, whether it answers in
the affirmative or the negative.
we defer to the jury's conclusion that the evidence was not
sufficient to warrant a sentence of life imprisonment and conclude
there was sufficient evidence to support the jury's affirmative
finding on the future dangerousness issue. Point of error eleven
In his third point of error, the appellant claims that the trial
court erred in overruling his Batson
regarding three African-American venire members: Geneva Johnson,
Myrtlene Williams, and Paulette Childress.
(29) After the
appellant objected to the State's peremptory challenge of each of
these venire members as racially motivated, the trial court held a
Batson hearing in which the prosecutors testified as to
their race-neutral reasons for exercising the peremptory strikes.
The trial court found the State did not exercise the peremptory
strikes on the basis of race and overruled each of the appellant's
In Batson, the Supreme Court outlined an analytical tool
for testing the challenges to the State's use of peremptory
strikes. Initially, the defendant must establish a prima facie
case showing that the State exercised its peremptory
challenges in a discriminatory manner. The burden then shifts to
the State to articulate race-neutral explanations for its
questioned strikes which the defendant may rebut. Finally, the
trial court must determine whether the defendant has carried his
burden of proving purposeful discrimination by the State.
In the instant case, we need not
address whether the the appellant established a prima facie
case. Where the prosecutor has articulated his reasons for
the challenged peremptory strike and the trial court has ruled on
the ultimate questions of intentional discrimination, that issue
Therefore, we shall go on to review the trial court's decisions.
We review the record of a Batson hearing and the voir
dire examination in the light most favorable to the trial court's
We will not
disturb a trial court's ruling on a Batson issue unless
it is clearly erroneous.
We first note that, in the instant case, six out of sixty venire
members were African-American.
(34) Of these six
venire members, one was disqualified, one was challenged for cause
by the State without objection by the defense, and three were
excluded by the State's peremptory strikes. One African-American
was accepted to serve on the jury and was the second juror
selected overall. The State exercised a total of fourteen
Juror number 27, Geneva Johnson,
was the first African-American prospective juror struck by the
State. Following the defense's Batson challenge, the
State gave the following race-neutral basis for exercising the
[State]: Your Honor, in
response, the prospective juror indicated on her questionnaire
that the defendant appeared to be about the age of her sons, that
she was not sure she could render a fair verdict. And while she
believed in capital punishment, she did not think she could make
that decision herself. It is based on that comment and that
comment in her questionnaire alone that -
[COURT]: Her response to
[State]: That is correct. And
that was the reason for the State's peremptory challenge in this
[COURT]: Go ahead. [To Defense]
[Defense]: Judge, I think also
that we should be given the opportunity to question her further if
they're going to base it solely on the questionnaire. That they
had a chance to ask her to clarify that. They did. And I don't
think that her response bears out what was stated in the
questionnaire. The point of the questionnaire is simply to provide
a road map for questioning at the time of the actual live voir
dire. And she was asked to explain that. I think she gave a
sufficient answer such that she's not-challenge her peremptorily
on that basis.
[COURT]: It's denied.
The appellant argues the State's
reasons for striking Johnson were not race-neutral. Specifically,
he contends that the State displayed disparate treatment towards
similarly situated non-African American venire members through a
comparison of Johnson's responses to those of two Hispanic venire
members, Jason Olivarri and Jaime Pena. The State accepted
Olivarri as a member of the jury without any objection by the
defense, while Pena was peremptorily struck by the defense. The
appellant claims that the State's stated basis for striking
Johnson was its concern regarding her ability to render a fair
verdict, and if the State's reason was indeed race-neutral, then
the State would have also struck Olivarri and Pena, whose
responses should have elicited the same type of concern.
Johnson stated in Question 89 of
her jury questionnaire that she was unsure whether she could
render a fair verdict because the defendant reminded her of her
(36) Olivarri's response
also indicated that he had a reason that might cause him to not be
fair, stating "I get easily nervous and could easily sway in favor
of either party if they pressured me hard enough." The appellant's
attempt to characterize these responses as being similar is
misplaced. Johnson's statement in Question 89 regarding her
uncertainty in her ability to render a fair verdict was in
reference to her personal belief that she might not be able to
vote in favor of the death penalty because it would be like
convicting her own sons. Olivarri implied that he just might be
easily swayed by jury argument. Further, regarding the death
penalty, Johnson indicated she might be unable to assess the full
range of punishment for the crime in which the defendant was
charged. In comparison, Olivarri told the prosecutor that he
believed in an "eye for an eye," and would be in favor of the
death penalty if he found the evidence supported such a verdict.
Hence, the concerns raised by Johnson's and Olivarri's responses
in their questionnaires and during voir dire are sufficiently
dissimilar so as to dispel any inference of disparate treatment by
The appellant also compares the
State's concerns regarding Johnson's inability to render a fair
verdict to Jaime Pena's possible prejudices against the State as a
result of his prior false arrest. The State argues it was more
likely the defense would find Pena to be a greater risk based on
Pena's business connections to the victim's family. The State did
not need to waste a peremptory strike on Pena knowing the defense
would exercise one. Thus, the appellant's argument that the State
displayed disparate treatment of venire member Pena as compared
with Johnson is not borne out by the record.
Juror number 38, Myrtlene
Williams, was the second African-American prospective juror struck
by the State. In response to the defense's Batson
challenge, the State offered the following explanation for
[State]: Our position, Judge, is
she participates in what's called the Outreach Ministries, and the
group that she participates with goes into the prison for the sole
purpose of rehabilitating people within the jail and the prison
system. And that's our main reason. And then in addition that, she
has a daughter who has, that she had mentioned, been convicted of
a larceny type offense in the State of North Carolina.
[Defense]: Mr. Bunk, is there, in any response
from Ms. Williams, to you, that indicate that she cannot be fair
or impartial and listen to the evidence presented in this case?
[State]: I didn't ask her that question, sir.
[Defense]: Exactly. Is there, in any response
from Ms. Williams, that she would not fairly or impartially answer
the special issue questions concerning life or death?
[State]: No. I chose to strike her because of
her membership with Outreach Ministry, and her daughter's--specifically
her daughter's criminal history.
Discriminatory intent is not inherently present
in the State's proffered race-neutral explanation.
In his attempt to rebut the State's reasons for striking Williams,
the appellant merely asserts other areas in which the State may
have inquired, such as the juror's ability to consider the full
range of punishment, the same inquiry that the State based its
strike of prospective juror Johnson. However, the State did not
have to further examine Williams regarding her opinion of the
death penalty if it had already decided that the juror's
membership in the Outreach Ministries, in addition to her
daughter's criminal history, would make her undesirable as a
member of the jury. Nevertheless, the appellant now argues on
appeal that the State's race-neutral reasons were pretextual
because the State misconstrued Williams' role in the Outreach
Ministries and displayed disparate treatment with regard to other
non-African American jury members who also had personal criminal
histories or close relatives with criminal histories.
The appellant argues that the prosecutor, in an
effort to keep an African-American off the jury, mischaracterized
Williams' words to make it seem as though Williams personally
ministered to inmates for the sole purpose of rehabilitating them.
Williams advised the prosecutor during her voir dire examination
that she was a member of Outreach Ministries. However, she stated
that her involvement in the group was focused on helping the
homeless and families in poverty in an effort to "bring them
closer to the Church." When Williams told the prosecutor that
there were members of her group that attended the jails and
prisons, the prosecutor asked Williams what the purpose of such
visits was, to which she agreed that the purpose was to attempt to
An examination of the exchange makes it
apparent that the State did not intentionally misconstrue Williams'
words in its explanation of its strike. The State's main basis for
excluding Williams from the jury - that "the group that
she participates with goes into the prison for the sole purpose of
rehabilitating people" - is consistent with Williams' voir dire
account of those particular members' goal in its ministry.
It was not improper for the State to strike Williams based on her
connection to Outreach Ministries if it felt her membership could
cause her to be more sympathetic to the defendant, particularly in
the punishment phase of trial.
Furthermore, whether the prosecutor was accurate in his assertion
that it was the Outreach Ministry members' sole purpose
in going to the prison to rehabilitate the prisoners, is
inconsequential. The trial court is not required to find a
Batson violation simply because the proffered explanation
turns out to be incorrect.
Hence, the appellant's contention of pretext based upon an alleged
mis-characterization of William's response is insufficient to
rebut the prosecutor's race-neutral explanations.
The appellant also claims that four non-African
American jury members, as well as five other non-African American
venire members who were either struck or successfully challenged
by the appellant, received disparate treatment from Williams
during the State's voir dire examinations. The State, however, did
not engage in disparate treatment with regard to questioning
venire members because none of these other prospective jurors put
their honesty in question. In contrast, Williams put her veracity
at issue when she failed to disclose her daughter's larceny
conviction in her jury questionnaire. When asked in Question 71 if
she knew of any "close friend or relative that has been charged,
arrested, indicted or convicted of any criminal offense above the
level of a traffic violation," Williams checked the box marked
"No." In response to the State's voir dire question about her
daughter's "difficulties in North Carolina," Williams indicated to
the prosecutor that she became aware of her daughter's larceny
conviction "two or three years ago." In comparison, none of the
four non-African-American venire persons who eventually served on
the jury, nor the five venire persons excluded by the defense,
failed to disclose the criminal history of themselves, close
relatives, or friends. Nevertheless, this court will not impute
disparate treatment in every instance where one of the State's
reasons for striking a juror might technically apply to another
venire member whom the State found acceptable.
The concealment of her daughter's larceny conviction, along with
Williams' affiliation to a group that ministers to prisoners,
provided reasonable grounds for concern to the State to warrant
its exercise of a non-race based peremptory strike.
Paulette Bell, juror number 57, was the third
African-American venire member peremptorily struck by the State.
In response to the appellant's Batson challenge, the
State testified to the following reasons for its peremptory strike
[State]: The State struck this juror for a
multitude of reasons. Once, she--her husband and son, both [b]lack
men, feel like they were--pulled over and apparently more than one
time [in] her son's case, and felt like they were victims of
racial profiling. Second reason, she was on a criminal jury and
found the defendant--has been on a criminal [jury] that reached a
not guilty verdict. [Third] she also spoke that she'd like the
chance to go to the jail, and minister and preach. [Fourth] she,
uh, while she indicated today that she would be able to be--consider
the death penalty, she strongly opposed it in her questionnaire,
and repeats more than once, under no circumstances could she
participate in that.
[Defense]: And Judge, for the record, she's a
black female. Judge, their primary reason offered is not a race-neutral
reason. He stated specifically that her husband and son are black
males, and that consequently they choose to strike her from this
case because they supposedly had been the subject of racial
profiling. That is not a race-neutral reason.
[COURT]: Yeah, but the other ones are.
[Defense]: Well, they listed as their primary
[State]: I did not.
[COURT]: They listed it as the first reason.
[Defense]: Okay. I'd ask that she be impaneled
on that basis, because they have not provided race-neutral reasons
for striking this juror.
[COURT]: Okay, that's denied. I mean, it's
The appellant argues that the State's first
reason for striking Bell was not race-neutral and, in the
alternative, the State's explanation for its challenge falls
within the "mixed motives" doctrine and the case should, therefore,
In Guzman, the State offered reasons for its peremptory
strike that were both gender based and gender neutral. However, in
ruling on the Batson challenge, the trial court failed to
make explicit findings that the State's strike could be based upon
the neutral reasons alone, and therefore, the case was remanded to
the trial court to make findings on that issue.
Here, the appellant contends
that the prosecutor's pointing out that Bell's husband and son
were "black men" and subjects of "racial
profiling" is an indication the State had a racially
discriminatory motive for striking Bell. However, the prosecutor's
statement that the juror's family members were black was made to
explain its decision to strike Bell based on her close familial
relationship to persons who believed they experienced racial
profiling. The State's striking of a juror based on her
personal or close relative's experiences with or perceptions of
law enforcement, particularly one as negative as racial profiling,
is not by itself determinative of racial discrimination.
(42) Thus, the appellant did not
rebut the State's race-neutral reason for striking Bell based on
the prosecutor's mere mentioning of the race of the juror's family
members, or its stated concern regarding her family members'
previous experiences with racial profiling.
Even assuming arguendo that the State
displayed a discriminatory motive in its first basis for striking
Bell and the "mixed motives" doctrine applies, such grounds do not
raise equal protection concerns to a level that would require
remanding this case to the trial court as was done in Guzman,
and as is now requested by the appellant.
Unlike in Guzman, the State and the trial judge here both
noted that the first reason proffered by the State was not
the primary reason, but rather the first of four reasons
the State sought to exclude Bell. In addition, the trial judge
demonstrated his consideration of the State's other three reasons
by responding to the appellant's contention that the State's first
reason was not race-neutral by saying "Yeah, but the other ones
are." Lastly, the facts in this case contrast with Guzman
because the trial judge explicitly denied the appellant's charge
of purposeful racial discrimination by the prosecutor.
After reviewing the evidence in a light most favorable to the
trial court's ruling, we are able to discern from the present
record what the trial court determined concerning the State's
allegedly race-based peremptory strike of prospective juror Bell.
Therefore, the trial court did not err in overruling the
appellant's Batson challenges and a remand is not
necessary. Point of error three is overruled.
In points of error four, five, and six, the
appellant alleges that the trial court erred in denying his motion
to suppress any statements made or evidence seized following his
arrest because he was arrested without a warrant in violation of
Article 38.23 and Chapter 14 of the Texas Code of Criminal
Procedure, the Fourth and Fourteenth Amendments to the United
States Constitution, and Article I § 9, of the Texas Constitution.
At trial, the appellant raised these claims in
a general "Motion to Suppress." The motion merely states that he
was arrested without "a valid warrant or probable cause or
reasonable suspicion." He further claims that any and all
statements made after the arrest are "fruit of the poisonous tree."
No further argument or citations were made in the motion, at the
pre-trial hearing, or at trial.
At the hearing on the motion to suppress, the
only evidence presented regarding the appellant's arrest came
during the cross-examination of the State's witness, Officer
Richard Hodge. The defense asked the officer how he came in
contact with the appellant. Hodge answered that they were looking
for a vehicle that was used in the robbery-murder, that the car
was found parked at a house, the occupants of the house were
ordered out, the appellant was uncooperative, and he was arrested.
Hodge advised the appellant of his rights and explained to him why
he was being arrested. The remainder of the questioning revolved
around whether the appellant was intoxicated and how certain items
of clothing and other evidence were obtained. No other evidence
was presented, and no argument was made regarding an arrest,
illegal or otherwise. Rather, the hearing focused on the alleged
warrantless seizure of specific items of evidence. At the end of
the presentation of witnesses, the State specifically requested a
ruling on "the admissibility of the clothes taken from the
Defendant." The defense agreed. The judge stated: "Yeah. As far as
the boxers, the socks and the rape kit, stuff that's in the rape
kit, it's all admissible - well, I don't know if it's admissible -
well, your Motion to Suppress is denied, let's put it that way."
The defense then requested that the trial court reserve its ruling
on the Motion to Suppress with regard to the buccal swabs, a pair
of shorts, and a t-shirt as the predicate had not been established
yet. No express ruling was ever made regarding the warrantless
arrest claim nor did the appellant request a ruling at any time.
When a defendant seeks to suppress evidence on
the basis of an illegal arrest, the initial burden of proof is
placed on the defendant to rebut the presumption of proper conduct.
The defendant may satisfy this burden by establishing that he was
arrested without a warrant.
Once this is shown, the burden shifts to the State to either
produce evidence of a warrant or prove the reasonableness of the
Here, the appellant failed to offer evidence
that the arrest was warrantless. He could have done so easily by
asking Officer Hodge if the arrest was made pursuant to a warrant.
The appellant, however, failed to do so. Therefore, we must
presume proper conduct, and the burden never shifted to the State
to produce evidence of a warrant or, alternatively, to prove the
reasonableness of the arrest. Assuming arguendo that the
trial court ruled upon the appellant's warrantless-arrest claim,
we presume he did so based upon the foregoing law. The trial court
did not err. Points of error four, five and six are overruled.
In the appellant's seventh point of error, he
posits that the trial court erred in denying his Motion to
Suppress because his slippers and socks were illegally seized from
him without a warrant, in violation of the Fourth and Fourteenth
Amendments to the United States Constitution. As stated in the
previous three points of error, the appellant made only a general
statement in his written motion that "the seizure of items, papers
and effects from him was effected without valid warrant or
probable cause or reasonable suspicion" in violation of the state
and federal laws. The appellant did not set out what specific
evidence he wanted suppressed or brief his argument at trial in
At the suppression hearing, evidence was
elicited that the appellant's socks and slippers were seized from
him after his arrest. The appellant was taken to Methodist
Specialty Hospital to have a rape kit completed for the sexual
assault that preceded the instant offense. Officer Hodge testified
that he took the appellant's slippers after the appellant removed
them for the exam by the Sexual Assault Nurse Examiner (SANE). The
socks were secured by the SANE nurse who then gave them to Officer
Hodge. Evidence was further elicited as to how the evidence was
secured, tagged, and preserved for testing. Neither the State nor
the defense, prior to the trial court expressly denying the Motion
to Suppress, made any argument with regard to the items collected
at the time of the sexual-assault exam.
Again, the appellant had the burden to show
that the items in question were seized without a warrant.
And, again, the appellant failed to establish that there was no
warrant. However, unlike the claim regarding the alleged
warrantless arrest, evidence was elicited regarding the seizure of
the items. Assuming arguendo that the appellant preserved
his argument on appeal, we hold that it is without merit.
If the trial court's ruling regarding a motion
to suppress is reasonably supported by the record and is correct
under any theory of law applicable to the case, the reviewing
court must affirm.
Here, while there is no evidence that the appellant consented to
the seizure of his socks or slippers, the evidence does show they
were taken pursuant to a lawful custodial arrest.
The warrantless seizure of a suspect's clothing subsequent to a
legal arrest, while he is in custody or detention, is permissible.
"Indeed, it is difficult to perceive what is unreasonable about
the police examining and holding as evidence those personal
effects of the accused that they already have in their lawful
custody as the result of a lawful arrest."
Point of error seven is overruled.
In points of error eight and nine, the
appellant complains that the trial court erred in admitting into
evidence State's Exhibit 10, an autopsy identification photograph
of the victim, at the guilt phase of trial. Specifically, he
alleges that the prejudicial nature of the photograph
substantially outweighed its probative value and that it was
When determining whether the trial court erred
in admitting relevant photographs into evidence, our review is
limited to determining whether the probative value of the photos
is substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury, or by
considerations of undue delay or needless presentation of
The trial court's decision is reviewed under an abuse of
discretion standard, and may be disturbed on appeal only when the
trial court's decision falls outside the zone of reasonable
A court may consider many factors in
determining whether the probative value of photographs is
substantially outweighed by the danger of unfair prejudice. These
factors include: the number of exhibits offered, their
gruesomeness, their detail, their size, whether they are in color
or black and white, whether they are close-up, and whether the
body depicted is clothed or naked.
A court, however, should not be limited by this list. The
availability of other means of proof and the circumstances unique
to each individual case should also be considered.
In reviewing the complained-of photograph, we note initially that
it is in color and is 8 ˝" x 11" in size.
Our review shows that State's Exhibit 10 is an
autopsy identification photo of the victim. The victim is shown
unclothed from the chest up, lying on a table. The medical
examiner's placard showing the case number is placed across the
victim's chest. The placard covers up most of the chest and most
of the entry gunshot wound. The photo was used twice by the State
during the guilt phase. The State's first witness, Mitesh Patel,
the victim's son, was shown the photo to identify that his father
was the victim in this case. The defense did not object when the
photo was displayed for identification purposes. The photo was not
admitted into evidence at that time. The next time the photo was
displayed was during the medical examiner's testimony. The medical
examiner, Dr. Jennifer Rulon, early in her testimony, testified
that each autopsy exam is assigned a specific case number that
goes on her autopsy report and any other reports. At the end of
her direct testimony, Dr. Rulon explained how she always takes an
identification photo of the deceased with a placard that has the
case number on it. The State then asked if Exhibit 10 shows that "this
is the individual who you've been discussing having done the
autopsy on?" Dr. Rulon replied, "Yes." The photo was admitted over
the appellant's objection.
The admissibility of a photograph is within the
sound discretion of the trial judge.
A photograph is generally admissible if verbal testimony about the
matters depicted in the photograph is also admissible.
State's Exhibit 10 is an autopsy identification photo. It depicts
the victim before autopsy and displays the autopsy number assigned
to that victim. A photo of the victim displaying the autopsy
number ensures that the autopsy report will correspond to the
photo of the correct victim. Thus, even though the victim's
identification was initially based on his son's testimony, the
medical examiner's office still utilized the photo for the purpose
of tying the victim to his assigned case number. For this reason,
the autopsy identification photo was relevant and not cumulative
of the autopsy photographs exhibiting the wounds. Regarding the
appellant's claim under Texas Rule of Evidence 403, we cannot say
that the trial court abused its discretion in holding that the
probative value of the photograph outweighed the danger of unfair
prejudice. The complained-of picture is not particularly gruesome
or detailed, it is not enhanced in any way, and it portrays no
more than the condition of the victim due to the injuries
inflicted. Therefore, we overrule points of error eight and nine.
In point of error ten, the appellant complains
that the trial court erred when it denied his request for a jury
charge on the lesser-included offense of murder. Specifically, he
argues that, because a police officer testified that he thought
the audio on the store's surveillance video was "unintelligible,"
there is no evidence that he committed murder in the course of
robbing or attempting to rob Patel. Alternatively, he argues that,
because at the beginning of the surveillance video the appellant
asks how much dry cleaning costs, there is evidence that he did
not intend to rob Patel.
In determining whether the appellant is
entitled to a charge on a lesser-included offense, we must
consider all of the evidence introduced at trial, whether produced
by the State or the defendant.
This Court uses a two-pronged test in its review.
First, the lesser-included offense must be included within the
proof necessary to establish the offense charged; second, there
must be some evidence in the record that if the defendant is
guilty, he is guilty only of the lesser-included offense.
The credibility of the evidence and whether it conflicts with
other evidence or is controverted may not be considered in
determining whether an instruction on a lesser-included offense
should be given.
This Court has long held that murder is a
lesser-included offense of capital murder.
Therefore, the appellant has met the first prong of the test.
However, the appellant fails to meet the second prong. First, we
point out that the appellant contradicts himself in his argument.
He states that the surveillance audio is completely unintelligible,
but then admits that he can discern what is being said at the
beginning of the tape. We note that this Court has listened to the
tape and is able to discern the statements made by the appellant.
However, even assuming the police officer was correct and the
audio was unintelligible, there is no evidence that the appellant
is guilty of only the lesser-included offense of murder. In
viewing the surveillance video with no sound, we observe that the
video shows the appellant entering the store, drawing a weapon,
forcing Patel to the register at gunpoint, shooting Patel, going
to the register, and then leaving the store.
Given these facts, we conclude that there is no
evidence in the record from which a rational trier of fact could
determine that the appellant was guilty only of murder. The trial
judge did not err in refusing the instruction. Point of error ten
In his twelfth and thirteenth points of error,
the appellant claims that the trial court erred when it overruled
his objection and permitted the admission of evidence at
punishment regarding an extraneous shooting incident. Specifically,
the appellant complains that the evidence was not relevant to the
punishment issues and that the probative value of the evidence was
substantially outweighed by its prejudicial effect. He argues that
the evidence was not relevant because the State did not "clearly
prove" that he committed the extraneous offense.
Generally, evidence of extraneous acts
involving a defendant is relevant and admissible in the punishment
stage of a capital case.
Further, Rule 403 favors the admission of relevant evidence and
carries a presumption that relevant evidence will be more
probative than prejudicial.
However, before a trial court may admit evidence of uncharged
misconduct (also known as "extraneous offenses" or "extraneous
misconduct"), the State must "clearly prove" that the misconduct
occurred and that the defendant was the perpetrator.
It is enough that the State presents evidence that, if believed,
establishes that the defendant himself committed the extraneous
The evidence here showed that on May 9, 2004,
the appellant was living with Chala Riley. Riley testified that
she was sitting with the appellant on the front porch of their
home when an individual known as "C-Small" drove by. The appellant
got "all hyped up." She heard the appellant say "I'm going to go
get C-Smalls. I'm going to shoot C-Small." The appellant then left
the house with his older brother, who had been inside. Shortly
thereafter, Riley heard five or more gunshots not far from the
house. She testified that the appellant later told her that "he
had shot at C-Smalls."
Officer Joseph Briseno testified that he was
called to the scene of a shooting at an apartment complex that was
next to the appellant's house. When he arrived, he noticed two
suspects fleeing the location. The appellant was one of the
suspects. As Briseno approached the appellant, the appellant
reached into his waistband and threw a gun into the bushes.
Briseno recovered the weapon which was fully loaded. Briseno
testified that the appellant told him that he got the gun in self-defense
and that he and "C-Small" were shooting at each other. Shell
casings were recovered from the parking lot and were found to have
come from the appellant's gun. The appellant also had gunshot
residue on his hands.
We hold that the appellant's out-of-court
admissions that he committed the act of misconduct, along with his
possession of the weapon and forensic evidence, constituted "clear
proof" that he committed the extraneous offense. We conclude that
the trial court did not err in holding that the probative value of
the evidence was not substantially outweighed by the danger of
unfair prejudice under Rule of Evidence 403.
We note that all evidence connecting a
defendant with a particular crime is highly prejudicial. However,
here the evidence of the extraneous shooting was clearly probative
of whether the appellant would be a future danger. It is only when
there exists a clear disparity between the degree of prejudice of
the offered evidence and its probative value that Rule 403 bars
In reviewing the record before us, we cannot say that the
probative value of the extraneous shooting was substantially
outweighed by the danger of unfair prejudice. Points of error
twelve and thirteen are overruled.
In point of error fourteen, the appellant
alleges that the trial court erred when it denied his motion for
mistrial at punishment. He argues that Officer Briseno's
spontaneous statement that the weapon used by the appellant in the
May 2004 shooting was a "stolen firearm" caused him incurable
prejudice. With respect to this point of error, the record
reflects that Officer Briseno testified that he witnessed the
appellant throw a gun into the bushes; the officer further
testified that he was the one who recovered the weapon. On re-direct
examination, the following occurred:
[State]: Officer, what type of gun was it?
[Briseno]: It's a semi-automatic handgun. It
was a Republic Arms, Patriot .45 caliber, silver and black .45
caliber; one in the chamber and six in the clip. And it was also a
[Defense]: Judge, I'm going to object.
[COURT]: Sustained. Ladies and Gentlemen of the
jury, step outside.
The court then reprimanded the officer for
providing the additional information that the gun was stolen.
Defense counsel requested an instruction to disregard and moved
for a mistrial. The motion for mistrial was denied, but the court
did instruct the jury upon their return to "disregard the last
question and answer by this witness in every form and fashion."
A witness's inadvertent reference to an
extraneous offense is generally cured by a prompt instruction to
A mistrial is a device used to halt trial proceedings when error
is so prejudicial that expenditure of further time and expense
would be wasteful and futile.
Therefore, a mistrial should be granted only in cases where the "reference
was clearly calculated to inflame the minds of the jury or was of
such damning character as to suggest it would be impossible to
remove the harmful impression from the jurors' minds."
We discern no abuse of discretion in the trial
court's denial of a mistrial. The testimony in issue did not
actually assert that the appellant stole the weapon or that he
knew it was stolen. The trial court could have reasonably
concluded that the answer was not so inflammatory as to be
incurable by an instruction to disregard. Point of error fourteen
Finally, in the appellant's fifteenth point of
error, he complains that the trial court, when instructing the
jury regarding the mitigation special issue, failed to give the
instruction contained in Article 37.071, § 2(f)(3). He argues that
this violated his rights under both the Eighth and Fourteenth
Amendments to the United States Constitution.
At punishment, the trial court instructed the
The second issue is:
State whether, taking into consideration all
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 are sufficient mitigating circumstances to warrant
that a sentence of life imprisonment rather than a death sentence
Jurors were not instructed that they "need not
agree on what particular evidence supports an affirmative finding
on the issue."
The appellant argues that the charge robbed him
of the safeguard of having jurors made unambiguously aware that
they did not need to agree on the particular evidence that
supported a "yes" answer to the mitigation issue. The appellant
further argues that the instruction skewed the jury's
understanding in the prosecution's favor, and therefore, he was
denied the constitutional guarantee of jury unanimity.
The appellant did not object to the charge, but
now contends that the lack of the instruction egregiously harmed
him under the standard set out in Almanza v. State.
The appellant relies on Mills v. Maryland
to support his argument that the lack of the Article 37.071, §
2(f)(3), instruction requires reversal. The charge in Mills
listed the statutorily available mitigating circumstances in that
case and directed jurors to unanimously affirm whether they agreed
or disagreed that each circumstance did or did not exist.
The United States Supreme Court found that such a charge
improperly required that all jurors unanimously agree on the
mitigating circumstances before finding that those circumstances
warranted a life sentence.
However, even when presented with the circumstances in Mills,
the Supreme Court did not go so far as to say it is a
constitutional requirement that every jury deliberating punishment
in a capital case should be explicitly instructed that the jurors
need not agree on the particular mitigating circumstances.
In this case, while jurors were not given the
statutorily required instruction that they need not agree on the
particular mitigating evidence, they unanimously found that no
sufficient mitigating circumstance or circumstances warranted that
a life sentence be imposed. The foreman signed the answer that
stated: "We, the jury, unanimously find and determine that the
answer to this Special Issue is 'No.'" Because no juror believed
there was a circumstance or circumstances that warranted a life
sentence, there was no possibility that the jurors would be
confused about a need to agree on a particular circumstance or
Although the trial court erred in failing to
give the statutory instruction, in this case, the appellant was
not deprived of the constitutional guarantee of a unanimous
verdict and did not suffer egregious harm. Nor was the appellant
denied a fair trial. Point of error fifteen is overruled.
We affirm the judgment of the trial court.
DELIVERED: April 22, 2009
1. Tex. Penal Code
2. Tex. Code Crim. Proc.
art. 37.071 §2(g). Unless otherwise indicated all future
references to Articles refer to the Texas Code of Criminal
3. Art. 37.071 §2(h).
4. Tex. Penal Code
5. The surveillance camera
provided both audio and video evidence of the crime. The camera
also time and date-stamped the film so it evidences the exact
timing of the offense.
6. Jackson v. Virginia,
443 U.S. 307, 319 (1979).
8. Clayton v. State,
235 S.W.3d 772, 778 (Tex. Crim. App. 2007).
9. Roberts v. State,
220 S.W.3d 521, 524 (Tex. Crim. App.), cert. denied, 128
S. Ct. 282 (2007).
10. Watson v. State,
204 S.W.3d 404, 414-15 (Tex. Crim. App. 2006).
11. Roberts, 220
S.W.3d at 524; Cain v. State, 958 S.W.2d 404, 407, 410 (Tex.
Crim. App. 1997).
12. See Tex. Penal
Code § 19.03(a)(2)(emphasis added).
13. See Bustamante v.
State, 106 S.W.3d 738, 740 (Tex. Crim. App. 2003).
14. See id. at
740-41; Alvarado v. State, 912 S.W.2d 199, 207 (Tex. Crim.
15. See Green v. State,
840 S.W.2d 394, 401 (Tex. Crim. App. 1992).
16. We note that we have
reviewed the surveillance video and were able to hear and
understand the appellant's statements.
Clayton, 235 S.W.3d at 778.
18. See Jackson,
443 U.S. at 319.
19. Roberts, 220
S.W.3d at 524; Watson, 204 S.W.3d at 317.
20. See Art.
21. Banda v. State,
890 S.W.2d 42, 50 (Tex. Crim. App. 1994).
See Keeton v.
State, 724 S.W.2d 58, 61 (Tex. Crim. App. 1987). Among
those factors are: (1) the circumstances of the capital offense,
including the defendant's state of mind and whether he was working
alone or with other parties; (2) the calculated nature of the
defendant's acts; (3) the forethought and deliberateness exhibited
by the crime's execution; (4) the existence of a prior criminal
record, and the severity of the prior crimes; (5) the defendant's
age and personal circumstances at the time of the offense; (6)
whether the defendant was acting under duress or the domination of
another at the time of the offense; (7) psychiatric evidence; and
(8) character evidence.
23. Banda, 890 S.W.2d
at 51; Valdez v. State, 776 S.W.2d 162, 166-67 (Tex. Crim.
24. Banda, 890 S.W.2d
at 51; see also Hayes v. State, 85 S.W.3d 809, 814 (Tex.
Crim. App. 2002).
25. DNA tests confirmed the
sexual assault by the appellant.
26. See Banda, 890
S.W.2d at 50-51 (intoxication); Emery v. State, 881 S.W.2d
702, 707 (Tex. Crim. App. 1994) (lack of violent behavior in
Colella v. State, 915 S.W.2d 834, 845 (Tex. Crim. App.
28. Batson v. Kentucky,
476 U.S. 79 (1986).
29. See Art.
30. See Batson v.
Kentucky, 479 U.S. at 106.
31. Cantu v. State,
842 S.W.2d 667, 689 (Tex. Crim. App. 1992); Hernandez v. New
York, 500 U.S. 352 (1991).
32. Gibson v. State,
144 S.W.3d 530, 534 (Tex. Crim. App. 2004); Cantu, 842
S.W.2d at 689; Harris v. State, 827 S.W.2d 949, 955 (Tex.
Crim. App. 1992).
33. Gibson, 144
S.W.3d at 534; Cantu, 842 S.W.2d at 689; Whitsey v.
State, 796 S.W.2d 707, 726 (Tex. Crim. App. 1990) (op. on
34. Approximately 200
prospective jurors were called. However, the jury was seated after
the initial sixty were questioned or otherwise disqualified.
35. Question 89 of the
Bexar County Juror Information questionnaire asked, "Do you know
of a reason why you could not serve as a juror in this case and be
absolutely fair to both the Defendant and the State, and render a
verdict based solely upon the evidence presented to you?"
Immediately following the question there was space to check "Yes"
or "No", and following the question, "If yes, please explain." Two
lines were provided for the prospective juror to answer the
36. In her juror
questionnaire, Johnson explained her affirmative answer to
Question 89 by stating "The defendant appears to be about the age
of my sons. I'm not sure I would render a fair verdict. While I
believe in capital punishment[,] I don't think I could make that
decision myself." She elaborated on those answers during voir dire."
37. See Purkett v. Elem,
514 U.S. 765, 768 (1995)(per curiam).
38. See Casarez v.
State, 913 S.W.2d 468, 496 (Tex. Crim. App. 1995) (stating
that "in the case of religion, the attribution is not overly broad,
and therefore not invidious, when the belief is an article of
faith[; b]ecause all members of the group share the same faith by
definition, it is not unjust to attribute beliefs characteristic
of the faith to all of them").
39. Gibson, 144
S.W.3d at 534 n.5 (citing Johnson v. State, 68 S.W.3d
644, 649 (Tex. Crim. App. 2002); Ford v. State, 1 S.W.3d
691, 693-94 (Tex. Crim. App. 1999)).
40. See Adanandus v.
State, 866 S.W.2d 210, 224-25 (Tex. Crim. App. 1993).
41. See Guzman v. State,
85 S.W.3d 242 (Tex. Crim. App. 2002).
42. See Williams v.
State, 804 S.W.2d 95, 98 (Tex. Crim. App. 1991) (stating the
prosecutor's strategy of selecting jurors not prone to have a
prejudice against either the police officers or the State was race-neutral);
see also Hawkins v. State, 793 S.W.2d 291, 293-94 (Tex.
App.-Dallas 1990, pet. ref'd) (holding that a prosecutor's
statement that a juror had a prior unpleasant experience with law-enforcement
personnel is a race-neutral explanation).
43. See Guzman,
85 S.W.3d at 255.
44. Compare Guzman,
85 S.W.3d at 254-55.
45. McGee v. State,
105 S.W.3d 609, 613 (Tex. Crim. App. 2003); Russell v. State,
717 S.W.2d 7, 9 (Tex. Crim. App. 1986).
48. Both the appellant and
the State submit that the trial court did not expressly rule upon
this evidence. After a careful review of the record, we disagree.
The trial court ruled specifically on the rape kit, boxers, socks,
and slippers. The judge then stated, "The buccal swab, that kind
of goes with everything else. I guess, if its -" The State then
interrupted and stated that the shorts, swab, and t-shirt were
collected at the police station. The defense then requested that
the trial court reserve his ruling as to the shorts and t-shirt as
they were "not in complete predicate yet." At no time did the
trial court withdraw his ruling regarding the socks and slippers.
49. See McGee, 105
S.W.3d at 613.
50. Romero v. State,
800 S.W.2d 539, 543-44 (Tex. Crim. App. 1990).
51. The appellant failed to
successfully challenge the legality of his arrest. See
points of error four five, and six, supra. Further, after
a thorough review of the record at trial, we hold that there was
sufficient probable cause and reasonable suspicion to arrest the
appellant without a warrant, assuming there was not one, in
accordance with both state and federal laws.
52. See U.S. v. Edwards,
415 U.S. 800, 805-09 (1974) (defendant's clothing seized the
morning after his arrest, when it became apparent clothes might be
evidence of crime); Marquez v. State, 725 S.W.2d 217, 234
(Tex. Crim. App. 1987).
53. Edwards, 415
U.S. at 806 (citations omitted).
54. Tex. R. Evid. 403.
55. Tex. R. Evid. 403;
Long v. State, 823 S.W.2d 259, 271 (Tex. Crim. App. 1991),
citing Montgomery v. State, 810 S.W.2d 372, 389 (Tex.
Crim. App. 1991) (op. on reh'g).
810 S.W.2d at 391.
57. Long, 823 S.W.2d
59. Paredes v. State,
129 S.W.3d 530, 539-40
(Tex. Crim. App. 2004); Williams v. State, 958 S.W.2d
186, 195 (Tex. Crim. App. 1997).
60. Id. at 540.
61. Goodwin v. State,
799 S.W.2d 719, 740 (Tex. Crim. App. 1990).
62. Rousseau v. State,
855 S.W.2d 666, 672-75 (Tex. Crim. App. 1993); Goodwin,
799 S.W.2d at 740-41.
63. See Hall v. State,
225 S.W.3d 524, 536 (Tex. Crim. App. 2007), quoting Bignall v.
State, 887 S.W.2d 21, 23 (Tex. Crim. App. 1994) ("A defendant
is entitled to an instruction on a lesser-included offense where
the proof for the offense charged includes the proof necessary to
establish the lesser-included offense and there is some evidence
in the record that would permit a jury rationally to find that if
the defendant is guilty, he is guilty only of the lesser-included
64. Banda, 890 S.W.2d
65. See Feldman v.
State, 71 S.W.3d 738, 750 (Tex. Crim. App. 2002); Thomas
v. State, 701 S.W.2d 653, 656 (Tex. Crim. App. 1985).
66. See McFarland v.
State, 928 S.W.2d 482, 512 (Tex. Crim. App. 2006);
Patrick v. State, 906 S.W.2d 481, 494 (Tex. Crim. App. 1995).
67. Williams v. State,
958 S.W.2d 186, 196 (Tex. Crim. App. 1997); Montgomery,
810 S.W.2d at 389.
68. Chamberlain v.
State, 998 S.W.2d 230, 235 (Tex. Crim. App.1999).
69. Harris, 827
S.W.2d at 961.
70. Jones v. State,
944 S.W.2d 642, 652 (Tex. Crim. App. 1996); Joiner v. State,
825 S.W.2d 701, 708 (Tex. Crim. App. 1992).
71. Rojas v. State,
986 S.W.2d 241, 251 (Tex. Crim. App. 1998); Kipp v. State,
876 S.W.2d 330, 339 (Tex. Crim. App. 1994).
72. Ladd v. State,
3 S.W.3d 547, 567 (Tex. Crim. App. 1999).
73. Rojas, 986 S.W.2d
74. Art. 37.071, § 2(f)(3).
75. 686 S.W.2d 157, 171 (Tex.
Crim. App. 1984) (op. on reh'g).
76. 486 U.S. 367 (1988).
77. Id. at 378.
78. Id. at 384.