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IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. 74,109
DANIEL CLATE
ACKER, Appellant
v.
THE STATE OF TEXAS
ON DIRECT APPEAL FROM HOPKINS
COUNTY
O P I N
I O N
Appellant was convicted of capital murder.
(1)
Pursuant to the jury's answers to the special issues set forth
in Texas Code of Criminal Procedure, Articles 37.071 §§2(b) and
2(e), the trial judge sentenced appellant to death.
(2)
Direct appeal to this Court is automatic.
(3)
Appellant raises six points of error. We shall
affirm.
A. Background
The victim,
Marquette ("Markie") George, was appellant's girlfriend, but
they had a stormy relationship. On the evening of March 11,
2000, they were with friends and a relative at the Bustin' Loose
nightclub.
From a
distance, Mary Peugh observed the two of them arguing. After the
argument, appellant walked back to Peugh's table and remarked, "I'm
going to kill that bitch." Pointing to the victim, appellant
later told Timothy Mason to tell Markie that appellant was going
to kill her.
Dorcus
Vititow, appellant's older sister, testified that appellant
acted very jealous and was eventually kicked out of the
nightclub for his behavior. Appellant returned several times,
inquiring about Markie's whereabouts, and at least one of those
times Vititow told him to stay out of the club. Vititow and
appellant left the premises together when the club closed at
1:00 in the morning.
Earlier that night, Vititow had taken a knife away from
appellant, and appellant later asked for the knife to be
returned.
(4)
When appellant asked for the knife to be returned, Vititow
claimed (falsely) that she did not have it.
(5)
Holding up an axe, appellant responded, "I don't need that knife.
If I find her with another man, they will pay."
Later that morning, appellant was still looking for the victim.
He believed that she had spent the night with another man, and
he said that, when he found them, he would beat them and make an
example out of them, because no one was going to make a fool out
of him.
At around
9:15 a.m., appellant appeared at the victim's parents' house and
asked about the victim's whereabouts. The victim's mother, Lila
Seawright, told appellant that she had not seen her. Appellant
told Seawright that he did not know what he was going to do
without Markie. He further told her that, if Markie had stayed
away by herself that night, then everything was fine, but "if I
find out she was with anybody, I'm going to kill 'em." Shocked,
Seawright replied that "there's not anybody worth killing and
going to the pen for." Shrugging his shoulders, appellant
responded, "Pen life ain't nothing. Ain't nothing to it."
Thomas Smiddy testified that the victim lived in a mobile home
within a mobile home park. Smiddy was one of her neighbors.
Between 10:45 and 11:00 a.m., the victim arrived at her home
with a man who was not appellant. This man dropped her off and
left. Appellant came out of the home to meet her, and the two
went inside.
Twenty to thirty minutes later, Markie ran out of the home and
over to Smiddy's place. She hid behind Smiddy's wife and yelled
for them to call the sheriff. Appellant followed and caught the
victim. He picked her up, slung her over his shoulder, and
carried her to his pickup truck. He then forced the victim into
the truck - an episode Smiddy described as "like putting a cat
in a bathtub." Appellant drove away, his truck swerving in and
out of a ditch as he did so. Smiddy called the sheriff.
(6)
Sometime
between 11:00 and 11:30 a.m., Brodie Young, a sixty-five-year-old
man, was driving on County Road 3519, passing by Sedill
Ferrell's dairy, when he saw a man pull a woman by her arms out
of the passenger side of a pickup truck and place her on the
ground. Young went to the sheriff's office to report the
incident, but someone had already reported it.
Sedill
Ferrell found the victim's body lying on the ground. He went to
a phone, called law enforcement, came back to the body, and
waited until the authorities arrived. Toney Hurley, the Chief
Investigator for the Hopkins County Sheriff's Office, testified
that appellant was found on a road about ten miles away from the
victim's body's location.
Dr. Morna Gonsoulin, a medical examiner, conducted an autopsy.
She testified that she found injuries around the neck that
showed a significant hemorrhage of blood. The left eye contained
petechiae - small hemorrhages in the capillaries lining the eye.
Both injuries were a sign of strangulation.
She also found blunt force injuries to the body: The head was
crushed, with broken bones in the face. The base of the skull
was shattered on all sides. There were rib fractures and a
clavicle fracture, internal injuries to the trunk, lacerations
and gaping wounds to the heart, lacerations of the lung and
liver, and a deep laceration in the lower right leg. The sac
around the heart was torn open, a segment of the main artery was
torn in two pieces, and there was blood in the chest and
abdominal cavities. There were also abrasions on the body,
including the cheek and chin. This testimony was consistent with
the autopsy report,
(7)
which came to the following conclusion:
It is our
opinion that Marquette George, a 33-year-old white woman, died
as the result of homicidal violence including strangulation.
Several of the injuries identified could be consistent with
blunt force injury resulting from an impact with or being
ejected from a motor vehicle. Some injuries (particularly those
of the neck and the perineum) are not consistent with ejection
from or impact with a vehicle; the injuries observed in the neck
are more consistent with strangulation.
Further,
the dry parchment-like appearance of several abrasions, the lack
of associated hemorrhage of the laceration of the right leg, the
paucity of hemorrhage in the brain and the amount of body cavity
hemorrhage in relation to the severity of the injuries indicate
that these injuries were sustained postmortem or perimortem.
Given these findings, it is likely that the decedent was
strangled and probably dead or near death prior to being dumped
from the vehicle.
On cross-examination,
Gonsoulin admitted that crushing the brain stem - which occurred
here - was an injury of the type that would cause instantaneous
death by stopping the heart from beating, and thus could explain
the lack of hemorrhaging in other parts of the body.
The
medical examiner also testified that it was possible for one to
receive the neck injuries observed and survive. On redirect,
however, the medical examiner testified that the neck injuries
were so severe that a person suffering from them would have been
incapacitated and might be brain dead, even if the heart were
still beating. Gonsoulin also testified that the neck injuries
occurred within hours of the victim's death.
Appellant
testified at trial. He denied strangling the victim and denied
squeezing or gripping her neck. He admitted that he carried the
victim to the truck but claimed that she crawled in when he
opened the driver's side door. He further testified that, when
he started the truck and began to pull out, the victim attempted
to jump out, but he pulled her back. Later, the victim attempted
to jump out a second time but was prevented from doing so.
Appellant testified that the victim finally succeeded on the
third attempt to jump out:
Q. What
happened then?
A. At the
same time the car passed me she jumped from the pickup.
Q. What
happened? What did you do when she jumped?
A. Well, I
did three different things pretty much at the same time.
Q. What
were those things?
A. I
leaned way over and tried to grab her. I barely touched her. I
never got a hold to her. I hollered her name. I hollered Markie
as I was trying to grab her and I stomped the brake with my left
foot. As I stomped the brake with my left foot it throwed me
down into the seat of the truck. I raised back up. I took my
left foot and pushed the clutch in and stopped as fast as I
could stop.
Q. What
happened then?
A. I had
to come pretty much to a complete stop to get the truck in
reverse.
Q. What
happened then?
A. You
know any car, I guess, you have to come to a complete stop to
get in reverse.
Q. What
did you do?
A. I
backed up as fast as I could back up.
Appellant
further testified that he navigated back to where the victim lay
and found her face down on the ground. He testified that he did
not run over her with his truck.
B. Analysis
1. Videotaped re-enactment
In point
of error two, appellant contends that the trial court erred in
admitting for demonstration purposes a videotaped re-enactment
of a witness driving by and viewing someone removing a body from
a pickup truck. In his summary of argument appellant complains
that no testimony was offered to authenticate the videotape and
no testimony was offered to show how or when the tape was made
or by whom. Appellant's argument, in its entirety, is as follows:
The
admissibility of a videotape is conditioned on its
identification by a witness as an accurate depiction of the
event and on verification by a person with knowledge that the
videotape is a correct representation of those facts.
Kessler v. Fanning, 953 S.W.2d 515 (Tex. App.-Fort Worth
1997, no pet.). No one testified as to the circumstances
involved in programming and establishing of the re-enactment;
and Mr. Young only testified that "it's pretty near what I saw
that day. It sure is." (19.216.6). Thus, such tape is not
authenticated under the R. 901(b)(1) T.R.E. Webb v. State,
760 S.W.2d 263 (Tex. Crim. App. 1988).
At trial,
the State questioned Young about a videotaped re-enactment of
the encounter:
Q. Have
you had an occasion, Mr. Young, to see a video tape that was
made showing the drive that you took with a pickup setting there
in the road like it was that day?
A. Yes.
Q. Does
that video tape show fairly and accurately about what you saw
that day?
A. That's
right.
Q. Is
there anything about that tape that's different that you can
tell by looking at it?
A. No. The
only thing about it seemed like it was a little clearer that day,
the sun shining, than the tape shows. But other than that it
wasn't nothing different. Nothing different about the tape.
After the
State tendered the videotape, appellant objected that "the
circumstances then as opposed to now are not sufficiently
similar to allow the entry of this tape." Appellant then took
the witness on voir dire. After questioning the witness about
the specifics of what he saw that day and his ability to observe
the events, appellant asked, "But what's on the video tape is
not exactly what you saw that day, is it?" Young replied, "It's
pretty near what I saw that day. It sure is." Appellant then
objected: "[I]t's not significantly similar to the event or what
he saw on that day. I believe it would be confusing to the jury
because what he's going to testify to is not what's on this
tape."
Appellant's objection at trial was that the videotaped re-enactment
was not significantly similar to the events observed by the
witness.
(8)
Appellant does not explain how the videotape differs from
Young's description of events. Young testified that the
videotape was virtually identical to what he saw, except that
lighting was better during the actual events than on the
videotape's rendition. The trial court was within its discretion
to conclude that the videotape depiction was in fact
significantly similar to the events the witness observed.
(9)
As for appellant's complaint that no one testified about the
circumstances involved in making the tape (who, what, when,
where, etc.), this complaint was not lodged at trial and is
therefore forfeited on appeal.
(10)
Point of error two is overruled.
2.
Optional completeness
In point
of error three, appellant contends that the trial court erred in
refusing to admit notes from the medical examiner's files. He
contends that he was entitled to admit the notes under the rule
of optional completeness. Appellant's argument, in its entirety,
is as follows:
When one
party introduces part of some writing, the opposing party may
introduce the rest. Rule 107, T.R.E. The Court admitted into
evidence an autopsy report by the State. (20.224.15). Therefore,
the defense should be permitted to offer other writings in Dr.
Gonsoulin's file explaining the contents of the autopsy report,
if those writings are necessary to avoid giving the jury a false
impression of the report. Credille v. State, 925 S.W.2d
112, 116-117 (Tex. App.-Houston [14th Dist. 1996, pet.
ref'd). Statements in DX-13 p. 2 and 3 could easily be read to
contradict Dr. Gonsoulin's statement in her autopsy report that
the injuries were not consistent "with ejection from impact with
a vehicle." SX-54 p. 7.
Appellant fails to give record references to the trial court's
ruling refusing to admit the notes or to appellant's objection
to that ruling. Also, appellant does not say how these notes
explain the autopsy report or why they are necessary for a full
understanding of the report or to avoid a false impression.
While appellant contends that some of the statements contained
in the notes contradict the conclusion of the autopsy report, he
does not specify which statements nor does he say why they
contradict the report. But despite the fact that this point of
error is inadequately briefed in several respects,
(11)
we will address the merits.
The rule
of optional completeness provides:
When part of an act, declaration, conversation, writing or
recorded statement is given in evidence by one party, the whole
on the same subject may be inquired into by the other, and any
other act, declaration, writing or recorded statement which is
necessary to make it fully understood or to explain the same may
also be given in evidence, as when a letter is read, all letters
on the same subject between the same parties may be given. "Writing
or recorded statement" includes depositions.
(12)
The notes
contain two statements (on the second and third pages
respectively) that could be viewed as beneficial to appellant:
(1) law enforcement officials knew the victim from previous
arrests, including an incident at a drug lab the week before,
and (2) appellant stated that the victim had jumped out of the
truck on her own accord. Both of these statements would be
inadmissible in their own right: the first being both hearsay
and character evidence and the second being at least double
hearsay. (13) Neither of these
statements has any bearing on the reliability of the autopsy
report's conclusions, which were derived from a medical analysis
of the victim's injuries. The victim's association with illegal
drugs and the defendant's statement that she jumped do not
change the nature of the injuries the victim sustained. Moreover,
appellant's contention on appeal that the statements "could
easily be read to contradict Dr. Gonsoulin's statement in her
autopsy report that the injuries were not consistent 'with
ejection from impact with a vehicle'" is somewhat misleading.
The medical examiner found that some injuries were consistent
with ejection and others were not. In any event, the statements
in the notes were not necessary to explain the report and
excluding the notes did not create a false impression. While
appellant's self-serving statement was at odds with the
conclusions in the autopsy report, evidence does not become
admissible under the rule of optional completeness simply
because it may lead to a different conclusion than other,
admitted evidence. (14) Point of
error three is overruled.
3. Lesser
offenses
In point
of error four, appellant contends that the trial court erred in
refusing to submit requested lesser-included offense charges on
manslaughter and criminally negligent homicide. In the argument
on this point, he also contends that the court erred in
excluding evidence that, two weeks earlier, the victim had
attempted to jump out of his truck while it was moving.
Appellant claims that this excluded evidence would have lent
further support to his request for lesser-included offense
instructions by showing appellant's state of mind at the time of
the alleged offense.
We will
assume, without deciding, that there was error in denying the
requested instructions and in excluding the evidence. We turn to
the question of harm. For error involving the jury instructions,
we look to the "some harm" standard set forth in Almanza v.
State. (15) Under
Almanza, we determine whether there was actual rather than
theoretical harm. (16) While
appellant does not claim the exclusion of evidence as error
independent from the denial of the requested jury instructions,
to the extent that his claim can be construed as independent, we
will review the claim under the "substantial rights" standard
for non-constitutional errors, set forth in Texas Rule of
Appellate Procedure 44.2(b). (17)
For the admission of evidence, that standard requires that an
appellate court determine whether the error had "a substantial
and injurious effect or influence in determining the jury's
verdict." (18) For both harm
standards, the appellate court conducts its own review, without
placing a burden of proof on either of the parties.
(19)
The trial
court did submit lesser-included offense instructions on murder
(20) and kidnapping. Although a jury's rejection of
intervening lesser-included offenses may not always render error
harmless, those circumstances can militate strongly in favor of
a finding of harmlessness. (21)
When some lesser-included offenses are submitted, the harm
ordinarily present in failing to submit requested lesser offense
instructions - that the jury would convict of the greater
offense despite its reasonable doubts because it lacked a
palatable alternative to acquittal - would be mitigated by an
available compromise. (22)
This case
is complicated by the claim that there was some evidence germane
to the lesser offense that the jury was not permitted to hear.
However, even assuming the full probative force of all evidence,
whether admitted or not, tending to show that the victim jumped
from a moving motor vehicle, such evidence was far outweighed by
evidence pointing to an intentional murder. Extremely damaging
evidence came from the medical examiner's testimony and her
autopsy. As we have summarized above, the medical evidence
showed that the victim was strangled to the point of death or
near-death before she received any blunt-force injuries. After
strangulation, she was in no condition to move, much less jump
out of a vehicle. Even if we assumed that defense counsel's
cross-examination of the medical examiner raised the possibility
that someone could suffer the victim's neck injuries, survive,
and later recover, there was not enough time for such a recovery
process to take place.
The
damaging medical evidence was further bolstered by Young's
testimony that appellant pulled the victim's body out of the
vehicle and laid it onto the ground. Also supporting a theory of
intentional murder was the testimony of four different people
that within a day of the victim's death appellant expressed the
intent to kill her.
Moreover,
appellant's proffered evidence was a double-edged sword because
it showed his violent character. The evidence was the victim's
statement to a deputy sheriff that she had tried to exit a motor
vehicle while she and appellant were traveling down the road.
This evidence arose from an incident that began at the Bustin'
Loose and escalated at appellant's mother's home.
(23) While traveling to appellant's mother's house,
appellant and Markie were arguing, and appellant attempted to
beat Markie's head against the dash of his truck. Markie tried
to jump out of the vehicle but was pulled back in by appellant.
Her face had come within inches of the pavement. When they
arrived at appellant's mother's home, the argument continued. As
appellant and Markie argued, appellant's mother stepped between
them. Appellant then threw his mother on the couch. When Markie
threatened to call the police, appellant ran out of the home
through a sliding glass door, breaking the glass. Terrified,
Markie ran to a neighbor's house. She told her neighbor that
appellant was crazy and that he was going to kill her. If
Markie's statement about attempting to jump out of the truck
were admitted (as an excited utterance),
(24) this other evidence would have been admissible
along with it. (25) We conclude
that any error regarding the failure to submit the requested
instruction, or the failure to admit the complained-of evidence,
is harmless. Point of error four is overruled.
4.
Investigator's testimony
In point
of error five, appellant contends that the trial court erred in
excluding testimony from a defense investigator. The
investigator would have testified that he determined, through
personal experimentation on a truck similar to the one driven by
appellant, that he could not reach the passenger door and open
it while driving. The State argues that the testimony was not
relevant because appellant failed to offer evidence comparing
the height, weight, arm length, strength, age, and physical
condition of the investigator and appellant. While we do not
necessarily agree with every item in the State's checklist, we
do agree that some evidence of similar physical characteristics
would be required for the evidence to be relevant. While the
trial court had the opportunity to observe both individuals, we
have no such opportunity on appeal. Having failed to include in
the record evidence of relevant physical similarities between
the two individuals, appellant has failed to demonstrate that
the trial court abused its discretion.
Moreover,
even if there were error, it would be harmless. The State's
theory of the case, as expressed in the opening statement and
closing argument, was that the defendant strangled the victim,
pulled her out of his truck, and then ran over her body with the
truck. The extensiveness of the victim's blunt force injuries
suggests she that did not incur them simply by falling or being
pushed out of a moving truck. Young's testimony also bolstered
the theory that the victim was never pushed out of the truck but
was strangled and then later pulled out of the truck from the
passenger side onto the ground. Confirmation from a defense
investigator that the victim could not have been pushed out of
the truck would have done nothing to answer the State's case,
and in fact, could have been viewed as supporting Young's
testimony and the State's theory that the victim was pulled out
of the truck after being strangled. Point of error five is
overruled.
5.
Prosecutorial misconduct
In point
of error six, appellant contends that the prosecuting attorney
committed misconduct during the trial. His argument under that
point, in its entirety, is as follows:
Many times
the prosecuting attorney would make comments regarding testimony
without making an objection until he was asked by the Court to
state a legal objection. Below are listed 46 times
(26) during the trial that illustrates [sic]attempts
to discredit either the witness or the defense counsel. One
illustrated example may not constitute harm. It is the
voluminous list that creates the harm. The following list
contains references to volume, page and line of examples of such
prosecutorial misconduct; establishing on the record how Acker
did not receive a fair and impartial trial. Art. 36.19 C.C.P.
This
argument is followed by a list of forty-eight record citations.
Appellant does not say he objected to these alleged instances of
prosecutorial misconduct. He also does not state exactly what is
improper about each of these instances, and he does not explain
how he was harmed.
We have
reviewed the first twelve record citations. In none of those
twelve instances did appellant object to the prosecutor's
comments. Contrary to appellant's assertion, the first instance
was phrased by the prosecutor as an objection. The second and
third instances were attempts by the prosecutor to permit a
witness to answer a question asked by defense counsel after
counsel had interrupted the witness. The fourth and fifth
instances involved the prosecutor asking that appellant's sister
be treated as a hostile witness during the State's direct
examination. The sixth instance was a response to defense
counsel's objection, and therefore, one would not expect the
prosecutor to phrase a legal objection.
(27) Four of the remaining six instances were
objections that were not preceded by the word "objection," and
some of these were worded argumentatively and possibly were
objectionable. One of the instances was a request to instruct
defense counsel to stop asking irrelevant questions, and one was
simply a remark.
If some of
the later citations do involve preserved error, it was
appellant's responsibility to point out which ones. Moreover, if
appellant is attempting to claim fundamental error that needs no
objection, he has failed to allege that fundamental error is
involved, has failed to argue why it is fundamental, and has
failed to cite any legal authority for why fundamental error
would be involved, except to refer to Article 36.19, which
applies to jury charges. And in fact, of the twelve instances we
have reviewed, only some of them appear to be potentially
objectionable. Appellant has failed to adequately brief this
point of error. (28) Point of
error six is overruled.
6.
Constitutionality of the death penalty
In point
of error one, appellant contends that the statutory death
penalty scheme is unconstitutional for a variety of reasons: (1)
it limits jury consideration of the special issues, thus not
permitting the jury to consider and give effect to all
mitigating circumstances that exist concerning the defendant,
(2) it chills the defendant's ability to present relevant
mitigating evidence to the jury, thereby denying the defendant
the effective assistance of counsel, (3) it gives prosecutors
unfettered discretion in deciding whether to seek the death
penalty in any particular case, (4) it does not provide for the
possibility of a life sentence without parole, virtually
insuring that the jury will impose a death sentence, (5) it
permits the admission of unadjudicated extraneous offenses at
punishment, violating the heightened reliability requirement of
the Eighth and Fourteenth Amendments and the Equal Protection
Clause of the Fourteenth Amendment.
Appellant
does not explain how the current scheme limits the jury's
consideration of the special issues or why any such limitation
violates the constitution. He does not explain how the current
scheme prevents the jury from considering and giving effect to
all mitigating circumstances. Nor does he explain how the
current scheme affects the defendant's ability to present
relevant mitigating evidence. He does not explain how a
prosecutor's unfettered discretion to seek the death penalty
violates the constitution, nor does he explain why the absence
of a life-without-parole option guarantees a death sentence. Nor
does he explain how the admission of unadjudicated offenses at
punishment violates the "heightened reliability"
(29) requirement or the Equal Protection Clause of the
United States Constitution. His claims under this point are
essentially pro forma, and as such, are inadequately
briefed. (30)
The trial court's judgment
is affirmed.
KELLER, Presiding Judge
Date delivered: November
26, 2003
Do not publish
*****
1. Tex. Penal Code
§19.03(a).
2. Article 37.071 §2(g).
Unless otherwise indicated all references to Articles refer to
the Code of Criminal Procedure.
3. Article 37.071 §2(h).
4. During direct
examination by the State, Vititow was reluctant to testify about
the details of the incident, but the State treated her as a
hostile witness and elicited those details with leading
questions and the help of earlier statements.
5. When asked by the State
why she refused to give back the knife, Vititow claimed that she
refused to do so because the knife actually belonged to Markie.
6. Smiddy's wife, Alicia
Smiddy, subsequently gave similar testimony.
7. Although Gonsoulin was
in charge of conducting the autopsy, several other doctors also
signed the report.
8. We question whether the
objection made is properly characterized as one of
authentication, under Rule 901, as opposed to one of relevance
or prejudice, under Rule 401 or 403. Given our disposition of
this point, we need not address that issue here.
9. Willover v. State,
70 S.W.3d 841, 845 (Tex. Crim. App. 2002)(appellate court must
uphold trial court's decision if reasonably supported by the
record); see also Guzman v. State, 955 S.W.2d 85, 89 (Tex.
Crim. App. 1997)("trial courts have broad discretion in their
evidentiary rulings and . . . are usually in the best position
to make the call on whether certain evidence should be admitted
or excluded").
10. Tex. R. Evid.
103(a)(1).
11. Tex. R. App. P.
38.1(h)("The brief must contain a clear and concise argument for
the contentions made, with appropriate citations to authorities
and to the record").
12. Tex. R. Evid. 107.
13. See Tex. R.
Evid. 404 and 801, et seq.
14. See Allridge v.
State, 762 S.W.2d 146, 153 (Tex. Crim. App.
1988)(introduction of adverse evidence did not make self-serving
hearsay statements of the defendant admissible under the rule of
optional completeness).
15. 686 S.W.2d 157, 171
(Tex. Crim. App. 1985).
16. Dickey v. State,
22 S.W.2d 490, 492 (Tex. Crim. App. 1999).
17. Rule 44.2(b)
provides: "Any other error, defect, irregularity, or variance
that does not affect substantial rights must be disregarded."
18. King v. State,
953 S.W.2d 266, 271 (Tex. Crim. App. 1997)(citing Kotteakos
v. United States, 328 U.S. 750 (1946)).
19. Ovalle v. State,
13 S.W.3d 774, 787 (Tex. Crim. App. 2000); Johnson v. State,
43 S.W.3d 1, 5 (Tex. Crim. App. 2001).
20. The theory of murder
submitted was an intentional or knowing killing.
21. Saunders v. State,
913 S.W.2d 564, 572-573 (Tex. Crim. App. 1995).
22. Id. at 572.
23. We tell the incident
as it was related by Markie to two witnesses: the deputy sheriff
and a neighbor. Although appellant offered the testimony of both
witnesses at trial and the trial court excluded the testimony of
both witnesses, appellant complains on appeal only about the
exclusion of the deputy sheriff's testimony.
24. In response to the
State's hearsay objection, the defendant offered the evidence as
an excited utterance. See Tex. R. Evid. 803(2).
25. Tex. R. Evid. 107.
26. There are actually
forty-eight citations.
27. The fifth instance
was also a response to defense counsel's objection.
28. See Tex. R.
App. P. 38.1(h).
29. Presumably, this is a
reference to the Eighth Amendment's prohibition against cruel
and unusual punishments.
30. See Tex. R.
App. P. 38.1(h). |
