Woods v. State - Appellee Brief

Steven Michael WOODS, A/K/A Halo, Appellant, v. The..., 2004 WL 1149109...

2004 WL 1149109 (Tex.Crim.App.) (Appellate Brief)

Court of Criminal Appeals of Texas.

Steven Michael WOODS, A/K/A Halo, Appellant,v.

The State of Texas, Appellee.

No. 74,430.April 27, 2004.

On Appeal in Cause No. F-2002-0541-E from the 367th Judicial District Court of Denton County, Texas

Brief for the Appellee, The State of Texas

Bruce Isaacks, Criminal District Attorney, Denton County, Texas, Kathleen A. Walsh - 20802200, Roger Jones, Michael Moore, Assistant District Attorneys, Denton County, Texas, 1450 East McKinney, Denton, Texas 76201, (940) 349-2600, Matthew Paul, State Prosecuting Attorney, Austin, Texas, Attorneys for the Appellee, the State of Texas.

Names of Parties.Pursuant to Tex. R. App. P. Rule 38.1, the following is a complete list of the parties and persons interested in the outcome of this cause:Steven Michael Woods, A/K/A Halo, the Appellant.Jerry D. Parr and Derek A. Adame, counsel for Appellant at trial.Wm. Reagan Wynn, counsel for Appellant on appeal.The State of Texas, by and through Bruce Isaacks, Denton County District Attorney, Roger Jones, Michael Moore, and Kathleen A. Walsh, Assistant District Attorneys.

*ii SUBJECT INDEX

LIST OF AUTHORITIES iv-x

STATEMENT REGARDING ORAL ARGUMENT 1

STATE’S COUNTERPOINTS 2-3

STATE’S COUNTERPOINT 1

THE TEXAS SENTENCING STATUTE IS NOT UNCONSTITUTIONAL FOR FAILING TO REQUIRE THE STATE TO PROVE THE ABSENCE OF MITIGATING EVIDENCE BEYOND A REASONABLE DOUBT.


THE STATUTORY SCHEME UNDER WHICH APPELLANT WAS CONVICTED DOES NOT VIOLATE THE EIGHTH AMENDMENT.


THE MITIGATION INSTRUCTION IS NOT CONSTITUTIONALLY FLAWED.STATE’S COUNTERPOINT 4

THE ORAL STATEMENT FROM APPELLANT MADE TO CALIFORNIA LAW ENFORCEMENT WAS PROPERLY ADMITTED UNDER TEX. CODE CRIM. PROC. ANN. ART. 38.22 § 3(c); ALTERNATIVELY, ANY ERROR IS HARMLESS.

© 2011 Thomson Reuters. No claim to original U.S. Government Works. 1

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APPELLANT WAIVED ERROR BY NOT OFFERING THE EVIDENCE FOR THE PURPOSE OF SHOWING BIAS, MOTIVE; EVIDENCE OF THE EFFECT OF PAROLE ON THE WITNESS’S SENTENCE WAS PROPERLY EXCLUDED; ALTERNATIVELY, ANY ERROR WAS HARMLESS.

*iii STATE’S COUNTERPOINT 6

STATEMENTS MADE BY CO-DEFENDANT MARCUS RHODES TO TWO FRIENDS DID NOT VIOLATE APPELLANT’S RIGHT TO CONFRONTATION AND WERE PROPERLY ADMITTED UNDER TEX. R. EVID. 803(24); ALTERNATIVELY, ERROR WAS HARMLESS.


THE TRIAL COURT DID NOT ERR BY SUBMITTING A JURY CHARGE DISTINGUISHING REASONABLE DOUBT FROM POSSIBLE DOUBT.


APPELLANT’S QUESTION TO JUROR KERI DENISE WYRICK CONSTITUTED AN IMPROPER COMMITMENT QUESTION; IF PROPER, THE TRIAL COURT’S REFUSAL TO ALLOW THE QUESTION WAS HARMLESS ERROR.


APPELLANT’S QUESTIONS TO VENIREPERSON MICHAEL RUDOLPH ZIEGLER AND JUROR JERRY LINSLEY PERTAINING TO THE YOUTH OF THE VICTIMS CONSTITUTED AN IMPROPER COMMITMENT QUESTION.STATEMENT OF FACTS 3

SUMMARY OF THE ARGUMENT 4

STATE’S COUNTERPOINT 1, RESTATED 6









CONCLUSION 50

CERTIFICATE OF SERVICE 51

*iv LIST OF AUTHORITIES

CASESApprendi v. New Jersey 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000)

7


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Barajas v. Slate 93 S.W.3d 36 (Tex. Crim. App. 2002) 40, 47, 48, 49

Bingham v. State 987 S.W.2d 54 (Tex. Crim. App. 1999) 30

Briddle v. State 742 S.W.2d 379 (Tex. Crim. App. 1987), cert. denied, 488 U.S. 986, 109 S. Ct. 543, 102 L. Ed. 2d 573 (1988)

14

Broxton v. State 909 S.W.2d 912 (Tex. Crim. App. 1995) 22

Carriere v. State 84 S.W.3d 753 (Tex. App.--Houston [1st Dist.] 2002, pet. ref’d)

38

Carroll v. State 916 S.W.2d 494 (Tex. Crime. App. 1996) 22, 23, 27

Cofield v. State 891 S.W.2d 952 (Tex. Crim App. 1994) 30

Coleman v. State 881 S.W.2d 344 (Tex. Crim. App. 1994) 38

*v Crawford v. Washington No. 02-9410, 2004 U.S. LEXIS 1838, _____ U.S. _____, 124 S. Ct. 1354 (March 8, 2004)

U.S. _____, 124 S. Ct. 1354 (March 8, 2004) 32, 33, 34

Dansby v. State 931 S.W.2d 297 (Tex. Crim. App. 1996) 12

Davidson v. State 42 S.W.3d 165 (Tex. App.--Fort Worth 2001, no pet.)

17

Davis v. State 872 S.W.2d 743 (Tex. Crim. App. 1994) 30

Delaware v. Van Arsdall 475 U.S. 673, 89 L. Ed. 2d 674, 106 S. Ct. 1431 (1986)

27

Dewberry v. State 4 S.W.3d 735 (Tex. Crim. App. 1999 30, 35

Fluellen v. State 104 S.W.3d 152 (Tex. App.--Texarkana 2003, no pet.)

38, 39

Geesa v. State 820 S.W.2d 154 (Tex. Crim. App. 1991 ) 39

Gonzales v. State 994 S.W.2d 170 (Tex. Crim. App. 1999) 42

Guidry v. State 9 S.W.3d 133 (Tex. Crim. App. 1999) 35

Hernandez v. State 13 S.W.3d 78 (Tex. App.--Texarkana 2000, no pet.)

12

*vi Idaho v. Wright 497 U.S. 805, 111 L. Ed. 2d 638, 110 S.Ct. 3139 (1990 )

34, 35

Janecka v. State 937 S.W.2d 456 (Tex. Crim. App. 1996) 46, 50

Johns v. State No. 14-02-00206-CR, 2003 Tex. App. LEXIS 3691 (Tex. App.-- Houston [14th Dist.] May 1, 2003) (not designated for publication)

22

































Jones v. State 119 S.W.3d 766 (Tex. Crim. App. 2003) 7, 8, 9

Lawton v. State 913 S.W.2d 542 (Tex. Crim. App. 1995) 8

Lilly v. Virginia 527 U.S. 116, 119 S. Ct. 1887, 144 L. Ed. 2d 117 (1999)

35

London v. State 739 S.W.2d 842 (Tex. Crim. App. 1987) 23

Maxwell v. State 48 S.W.3d 196 (Tex. Crim. App. 2001) 22, 23, 27

McFarland v. State 928 S.W.2d 482 (Tex. Crim. App. 1996) 8

Miller v. State No. 13-00-291-CR, 2002 Tex. App. LEXIS 6451, *8 (Tex. App.-- Corpus Christi August 30, 2002) (not designated for publication)

22

*vii Minor v. State 91 S.W.3d 824 (Tex. App.--Fort Worth 2002, pet. ref’d)

38

Moore v. State 999 S.W.2d 385 (Tex. Crim. App. 1999) 8, 12

Morris v. State 940 S.W.2d 610 (Tex. Crim. App. 1996) 8

Nonn v. State 117 S.W.3d 874 (Tex. Crim. App. 2003) 17

Nonn v. State 69 S.W.3d 590 (Tex. App.--Corpus Christi 2001, pet. granted), aff’d 117 S.W.3d 874 (Tex. Crim. App. 2003)

12

Nunfio v. State 808 S.W.2d 482 (Tex. Crim. App. 1991) 47

O’Canas v. State No. 05-02-01636-CR, 2003 Tex. App. LEXIS 9749 (Tex. App.-- Dallas 2003, pet. dism’d)(not yet reported)

38, 39

Ochoa v. State 119 S.W.3d 825 (Tex. App.--San Antonio 2003, no pet.)

38

Ohio v. Roberts 448 U.S. 56, 100 S. Ct. 2531, 65 L. Ed. 2d 597 (1980)

32, 34, 35

Paredes v. State 2004 Tex. Crim. App. LEXIS 1, *27 (Tex. Crim. App. Jan. 14, 2004)

7

*viii Paulson v. State 28 S.W.3d 570 (Tex. Crim. App. 2000) 37

Phillips v. State 72 S.W.3d 719 (Tex. App.--Waco 2002, no pet.)

38

Pondexter v. State 942 S.W.2d 577 (Tex. Crim. App. 1996) 8

Port v. State 791 S.W.2d 103 (Tex. Crim. App. 1990) 12, 14





























Raby v. State 970 S.W.2d 1 (Tex. Crim. App. 1998) 8, 41, 42

Resendez v. State 112 S.W.3d 541 (Tex. Crim. App. 2003) 7

Ring v. Arizona 536 U.S. 584, 153 L. Ed. 2d 556, 122 S. Ct. 2428 (2002)

7

Rivera v. State 82 S.W.3d 64 (Tex. App.--San Antonio 2002, pet. ref’d)

46, 49

Rodriguez v. State 96 S.W.3d 398 (Tex. App.--Austin 2002, pet. ref’d)

38

Sells v. State 121 S.W.3d 748 (Tex. Crim. App. 2003) 40, 48, 49

Standefer v. State 59 S.W.3d 177 (Tex. Crim. App. 2001) 40, 41, 47

*ix Subke v. State 918 S.W.2d 11 (Tex. App.--Dallas 1995, pet. ref’d)

12

Taylor v. State 109 S.W.3d 443 (Tex. Crim. App. 2003) 42

Texas v. Brown 460 U.S. 730, 103 S. Ct. 1535, 75 L. Ed. 2d 502 (1983 )

35

Torres v. State 116 S.W.3d 208 (Tex. App.--El Paso 2003, no pet.)

38

White v Illinois 502 U.S. 346, 116 L. Ed. 2d 848, 112 S. Ct. 736 (1992 )

34

Williamson v. United States 512 U.S. 594, 129 L. Ed. 2d 476, 114 S. Ct. 2431 (1994)

30

Willingham v. State 897 S.W.2d 351 (Tex. Crim. App. 1995) 23

STATUTESTEX. CODE CRIM. PROC. ANN. art. 37.07 § 4 (Vernon Supp. 2004)

23

TEX. CODE CRIM. PROC. ANN. art. 38.22 § 3(a)(2) (Vernon Supp. 2004)

11

TEX. CODE CRIM. PROC. ANN. art. 38.22 § 3(c) (Vernon Supp. 2004)

12

OTHER AUTHORITIES113 Harv. L. Rev. 233 (1999) 35

2000 Army Law 63 35

*x RULESTEX. R. APP. P. 33.1(a) 22


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TEX. R. APP. P. 44.2(a) 27, 42

TEX. R. EVID. 613(b) 23

TEX. R. EVID. 803(24) 29, 30, 36

*1 TO THE HONORABLE COURT OF APPEALS:

Appellee, the State of Texas, respectfully submits this brief in reply to the brief of Appellant, STEVEN MICHAEL WOODS, A/K/A HALO. This is an appeal from a conviction of Capital Murder in the 367th Judicial District Court of Denton County, Texas, the Honorable Lee Gabriel, Judge, presiding.

STATEMENT REGARDING ORAL ARGUMENT

Although the Appellant requested oral argument, the State does not believe that oral argument is necessary to this Court’s resolution of the issues raised by Appellant; however, in the event this Court desires oral argument or grants oral argument to the Appellant, the State respectfully requests that it also be allowed to present oral argument.

*2 STATE’S COUNTERPOINTS






THE MITIGATION INSTRUCTION IS NOT CONSTITUTIONALLY FLAWED.


THE ORAL STATEMENT FROM APPELLANT MADE TO CALIFORNIA LAW ENFORCEMENT WAS PROPERLY ADMITTED UNDER TEX. CODE CRIM. PROC. ANN. ART. 38.22 § 3(c); ALTERNATIVELY, ANY ERROR IS HARMLESS.


APPELLANT WAIVED ERROR BY NOT OFFERING THE EVIDENCE FOR THE PURPOSE OF SHOWING BIAS, MOTIVE; EVIDENCE OF THE EFFECT OF PAROLE ON THE WITNESS’S SENTENCE WAS PROPERLY EXCLUDED; ALTERNATIVELY, ANY ERROR WAS HARMLESS.







*3 STATE’S COUNTERPOINT 6

STATEMENTS MADE BY CO-DEFENDANT MARCUS RHODES TO TWO FRIENDS DID NOT VIOLATE APPELLANT’S RIGHT TO CONFRONTATION AND WERE PROPERLY ADMITTED UNDER TEX. R. EVID. 803(24); ALTERNATIVELY, ERROR WAS HARMLESS.




APPELLANT’S QUESTION TO JUROR KERI DENISE WYRICK CONSTITUTED AN IMPROPER COMMITMENT QUESTION; IF PROPER, THE TRIAL COURT’S REFUSAL TO ALLOW THE QUESTION WAS HARMLESS ERROR.


APPELLANT’S QUESTIONS TO VENIREPERSON MICHAEL RUDOLPH ZIEGLER AND JUROR JERRY LINSLEY PERTAINING TO THE YOUTH OF THE VICTIMS CONSTITUTED AN IMPROPER COMMITMENT QUESTION.

STATEMENT OF FACTS

Appellant’s Brief contains an extensive recitation of the evidence presented. Appellant does not challenge the sufficiency of the evidence to support the conviction. Any evidence presented, not set forth in Appellant’s Statement of Facts and necessary to the resolution of Appellant’s points of error, is set forth in the appropriate State’s counterpoint.

*4 SUMMARY OF THE ARGUMENT

Appellant’s claims in Points Of Error I, II, III, IV, and V regarding the constitutionality of the Texas death penalty statute have been considered and rejected by this Court on numerous occasions. Appellant offers no new compelling arguments or authorities showing why this Court’s previous decisions should not be followed or why these issues should be reconsidered.

Appellant’s Point Of Error VI takes issue with the admissibility of the tape-recorded interview with the California detectives admitted as State’s Exhibit 119 during the punishment hearing. The State believes that the recording was properly admitted under the exception in section 3(c) of article 38.22 of the Code of Criminal Procedure, which allows the admission of oral statements that assert facts establishing the guilt of the accused if at the time they were made they contained assertions unknown by law enforcement later found to be true. Appellant’s oral statement led to the location of the body of the victim and contained an accurate description of the murder weapon and who owned it. Even if the statement should not have been admitted, Appellant’s connection to the murder out in California was revealed through the testimony of two other witnesses.

Appellant’s Points Of Error VII and VIII complain of the trial court’s refusal to allow him to cross-examine Brian Young regarding the length of the sentence he was currently serving and his prospects for parole. Appellant never made the trial court aware of the fact that he was offering the evidence to *5 show bias or motive for the State. Furthermore, questions pertaining to a witness’s length of sentence and prospects for parole do not show motive or bias absent a connection between the witness’s prospect for parole and the witness’s testimony. Appellant did not show any such connection. No promises were made; no leniency was expected by the witness. The applicability of the parole law to any given prisoner is too speculative. Even if the Appellant should have been allowed to cross-examine the witness on this issue, error was harmless. Young had been impeached with his three prior convictions and inconsistencies between his statement to the police and his testimony. Furthermore, Young’s testimony was not integral to the State’s case such that a conviction could not have been had without it or that it would make an indelible impression on the jury. Besides all of the circumstantial evidence connecting Appellant to the case, no less than five witnesses testified that Appellant admitted to them that he committed the murders.





Appellant’s Points Of Error IX, X, XI, and XII complain about the statements made by co-defendant Marcus to his friends David Samuelson and Staci Schwartz. These statements were properly admitted under Texas Rule of Evidence 803(24) and did not violate Appellant’s right to confrontation. The statements were sufficiently self-inculpatory and bore the necessary indicia of trustworthiness. The statements did not fall within any of the formulations of the core class of testimonial statements discussed and prohibited in a criminal trial by the Supreme Court’s recent holding in Crawford v. Washington. The *6 circumstances under which the statements were made reflected that the statements exhibited “particularized guarantees of trustworthiness.” Even if erroneously admitted, error was harmless. These statements constituted a minor piece of evidence when considered in proportion to all of the evidence presented.Appellant’s Points Of Error XV, XVI, and XVII complain of the trial court’s limitation of his voir dire of three jurors. The question to juror Keri Wyrick constituted an improper commitment question attempting to bind the juror to giving favorable effect to the mitigation evidence. The questions propounded to veniremember Ziegler and juror Linsley attempted to improperly ask whether they could be impartial under a particular set of facts. The victim’s age in the instant case was not relevant to determining guilt, and the law does not require a juror to consider age as a factor or give it any weight in assessing punishment. Thus, the question could not have led to a valid challenge for cause. Even if Appellant was improperly limited in his questioning, he cannot show harm. Two of the veniremembers were seated on the jury. Furthermore, Appellant was able to ask the substance of his question through other questioning.

STATE’S COUNTERPOINT 1, RESTATED

(In Response To Appellant’s Points Of Error I, II, And III)


*7 ARGUMENT AND AUTHORITIES

In three points of error, Appellant claims that the statute under which he was sentenced is unconstitutional because it does not require that the State prove the absence of mitigating evidence beyond a reasonable doubt. Appellant relies on Ring v. Arizona, 536 U.S. 584, 153 L. Ed. 2d 556, 122 S. Ct. 2428 (2002), and Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000).

This Court has recently rejected the contention that Apprendi and Ring require the State to bear the burden to prove beyond a reasonable doubt that the mitigation issue should be answered in the negative. Paredes v. State, 2004 Tex. Crim. App. LEXIS 1, *27 (Tex. Crim. App. Jan. 14, 2004); Jones v. State, 119 S.W.3d 766, 791 (Tex. Crim. App. 2003); Resendez v. State, 112 S.W.3d 541, 550 (Tex. Crim. App. 2003). Appellant offers no new argument or authority as to why this Court’s holding in Paredes, Jones, and Resendez should not be followed. Appellant’s Points Of Error I, II, and III should be overruled.


(In Response To Appellant’s Point Of Error IV)


*8 ARGUMENTS AND AUTHORITIES

Appellant’s claim that the statutory scheme under which he was convicted violates the Eighth Amendment because it allows the jury too much discretion and lacks the minimal standards and guidelines necessary to avoid an arbitrary and capricious


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imposition of the death penalty has been considered and rejected numerous times by this Court. Jones v. State, 119 S.W.3d 766, 790 (Tex. Crim. App. 2003); Moore v. State, 999 S.W.2d 385, 408 (Tex. Crim. App. 1999); Raby v. State, 970 S.W.2d 1, 20 (Tex. Crim. App. 1998); Pondexter v. State, 942 S.W.2d 577, 586-87 (Tex. Crim. App. 1996); Morris v. State, 940 S.W.2d 610, 614 (Tex. Crim. App. 1996); McFarland v. State, 928 S.W.2d 482, 499 (Tex. Crim. App. 1996); Lawton v. State, 913 S.W.2d 542, 560 (Tex. Crim. App. 1995).

Appellant offers no new compelling argument or authority justifying reconsideration of this issue. Appellant’s Point Of Error IV should be overruled.


(In Response To Appellant’s Point Of Error V)

THE MITIGATION INSTRUCTION IS NOT CONSTITUTIONALLY FLAWED.

ARGUMENTS AND AUTHORITIES

In his fifth point of error, Appellant claims that the Texas death penalty statute violates the Eighth Amendment because the mitigation *9 instruction sends “mixed signals” to the jurors due to the fact that the statutory mitigation issue is unclear as to the burden of proof.This issue was decided adversely to Appellant recently by this Court in Jones v. State, 119 S.W.3d 766, 790 (Tex. Crim. App. 2003). Appellant’s argument in the instant case suffers from the same flaw as the argument made by the appellant in Jones - “Except for flatly asserting that the mitigation issue sends ‘mixed signals’ because it is ‘unclear as to the burden of proof,’ appellant does not explain in what way this apparent lack of clarity constitutes a ‘mixed signal’ like that at issue in Penry II.” Id. at 790.

Appellant’s Point Of Error V should be overruled.


(In Response To Appellant’s Point Of Error VI)

THE ORAL STATEMENT FROM APPELLANT MADE TO CALIFORNIA LAW ENFORCEMENT WAS PROPERLY ADMITTED UNDER TEX. CODE CRIM. PROC. ANN. ART. 38.22 § 3(C); ALTERNATIVELY, ANY

ERROR IS HARMLESS.


Appellant claims that the tape-recorded statement he made to California law enforcement was improperly admitted during the punishment hearing because it did not comply with the requirements of article 38.22 of the Code of Criminal Procedure. Specifically, Appellant claims that since there was a total failure to warn Appellant that “he has the right to terminate the interview *10 at any time” as required by sections 2(a)(5) and 3(a)(2), there was neither substantial compliance nor a “fully effective equivalent” of the required warning.

The record shows that on January 7, 2002, Detective Brad Toms with the San Bernardino Sheriff’s Department in California interviewed Appellant in connection with the investigation of the disappearance and murder of Beau Sanders. (RR23: 62-63). Appellant was in custody in the Denton County Jail on the capital murder charges in the instant case. (RR23: 63; State’s Exhibits 119, 120). Pursuant to the policy and procedure of the San Bernardino County Sheriff’s Department, Detective Toms



















audiotaped the interview. (RR23: 63-64). Prior to beginning the interview, Detective Toms read Appellant his rights using a card issued to him by the San Bernardino County Sheriff’s Department. (RR23: 64). The reading of those rights and Appellant’s waiver of those rights can be heard on the audiotape. (RR23: 64; State’s Exhibits 119, 120). Detective Toms admitted that he did not warn the Appellant that he had the right to terminate the interview at any time. (RR23: 74; State’s Exhibits 119, 120). Sometime during the course of the interview, Appellant indicated that he wanted to speak with his attorney. At that point, the interview was terminated and Appellant was allowed to leave the interview room to try to call his attorney. (RR23: 65-66). A few moments later, Appellant came back into the room and told Detective Toms that he wanted to speak with him. (RR23: 65-66). After making sure that Appellant’s willingness to speak with him was voluntary and a decision freely *11 made by the Appellant, Detective Toms continued the interview. (RR23: 66; State’s Exhibit 119).

State’s Exhibit 120 is the audiotape of the interview with Appellant up until the point Appellant asks to talk to his lawyer. State’s Exhibit 119 is the audiotape of the interview from the point Appellant came back into the room and voluntarily wanted to talk to Detective Toms after having had the opportunity to contact his attorney. Exhibit 119 is the recording the State was offering into evidence. The State indicated that it would not play the portion of the recording containing the comments regarding Appellant having wanted to talk to his attorney in front of the jury. (RR23: 77-80). At a hearing outside of the presence of the jury, Appellant objected that even the remaining portion of the tape was inadmissible because Appellant had never been warned that he could terminate the interview at any time. (RR23: 73-79). The trial court ruled that the recording would be admissible because there had been substantial compliance with article 38.22 and it was evident to the court that Appellant knew he could terminate the interview at any time because he did it. (RR23: 79-80).

Appellant is correct in his assertion that section 3(a)(2) of article 38.22 requires that Appellant be warned that he had the right to terminate the interview at any time. TEX. CODE CRIM. PROC. ANN. art. 38.22 § 3(a)(2) (Vernon Supp. 2004). Furthermore, the State believes that Appellant’s contention that the complete omission of a required warning does not qualify as *12 substantial compliance has merit and the State has been unable to find any authority to the contrary. See Nonn v. State, 69 S.W.3d 590, 592-93 (Tex. App.-Corpus Christi 2001, pet. granted), aff’d 117 S.W.3d 874 (Tex. Crim. App. 2003); Hernandez v. State, 13 S.W.3d 78 (Tex. App.--Texarkana 2000, no pet.); Subke v. State, 918 S.W.2d 11 (Tex. App.--Dallas 1995, pet. ref’d). Nevertheless, the State submits that the trial court correctly ruled that Appellant’s oral statement was admissible.

As an exception to section 3(a), restricting the admission of oral confessions, section 3(c) allows the admission of oral statements that assert facts or circumstances establishing the guilt of the accused if at the time they were made they contained assertions unknown by law enforcement later found to be true.1 Moore v. State, 999 S.W.2d 385, 399-401 (Tex. Crim. App. 1999); Dansby v. State, 931 S.W.2d 297 (Tex. Crim. App. 1996). The Appellant’s guilt need only be demonstrated by circumstantial evidence by the oral statement. Furthermore, even a single assertion of fact found to be true and conducive to establishing the Appellant’s guilt renders the oral statement admissible in its entirety. Moore at 399-401; Port v. State, 791 S.W.2d 103 (Tex. Crim. App. 1990).

*13 Appellant’s oral statement in the instant case describes his involvement in the murder of Beau Sanders. Although Appellant denies that he ever ordered a hit on Beau, he admits that he was present when his two buddies, Marcus Rhodes and Jeremy (“Jay”) Stark, were planning the murder. Appellant odmitted that he did not say anything to stop them and that he gave them his car to use. In fact, the first plan was to have the Appellant be the one who drove them all out to California. 2

However, Appellant’s girlfriend, Julie, talked Appellant out of actually going with them. In his oral statement, Appellant also talked about how Matthew Potts got involved in the murder, basically because he had never killed anyone before. Appellant told the detective how and where the murder took place - in California - they just pulled off the road in the desert, got Beau out of the car, Matt shot him in the back, and Jeremy emptied his whole clip into Beau, using a .380. Both guns belonged to Marcus. According to Appellant, the murder took place in an area of the desert called Hobby Reserve. Appellant also told the detective where Beau’s property could be found, explaining that the property was split up: Appellant took Beau’s hat and gave it to his ex-fiancé, Julie; some of the property was at Brittany’s house; the CD case was in Jay’s garage; and the CDs were split up between Marcus and Jay. (State’s Exhibit 119).*14 It is clear from the interview that prior to Appellant’s statement, the detectives from California did not know where to find Beau’s body until Appellant told them. In the portion of the interview admitted for record purposes and before Appellant finally admitted that he was present during the planning of the murder, Detective Toms made statements like “Beau Sanders’ family - they don’t know where he is” and “How long does he have to set out there, let’s make it right.” (State’s Exhibit 120). Furthermore, in the portion of the interview admitted into evidence, Detective Toms outright asks the question “Where did



















they kill him?” (State’s Exhibit 119). At trial, Detective Toms testified regarding where they located the body of Beau Sanders, indicating that they did a search of a specific area out in the desert and that the remains had not been found until after he had come to Texas to talk to the Appellant. (RR23: 111-14). Detective Toms also testified that a .380 fired cartridge casing was found along with the clothing and skeletal remains of Beau Sanders and that the guns used to kill Beau were registered to Marcus Rhodes’ father. (RR23: 112-13).

The location of Beau Sanders’ body as a result of Appellant’s statement in and of itself is enough to render the exception in section 3(c) applicable. Port, 791 S.W.2d 103, 106-08; Briddle v. State, 742 S.W.2d 379 (Tex. Crim. App. 1987), cert. denied, 488 U.S. 986, 109 S. Ct. 543, 102 L. Ed. 2d 573 (1988). In addition, Appellant’s statement revealed that a .380 was used to shoot the victim and that the guns used were owned by Marcus Rhodes..380 shell casings were found with the skeletal remains, and the guns used were *15 registered to Marcus Rhodes’ father. Based upon these statements, which were found to be true and were conducive to establishing guilt, Appellant’s oral statement was admissible under section 3(c) of article 38.22.3

Even if the oral statement to the detectives in California was not admissible under the exception in section 3(c), the State submits that any error was harmless. The record shows that the same or similar testimony came in through another witness during the punishment hearing. Michael Calvin testified that around the time of Beau’s murder, he was staying at Brittany Burdine’s apartment. The Appellant was also staying there, and Jay, Marcus Rhodes, and Punky (Matthew Potts) were at the apartment all the time. (RR23: 125-27). Calvin was present during the conversation about Appellant, Marcus, Jeremy, and Matt taking Beau to California. (RR23: 128-29). The Appellant told Calvin that he was taking Beau out to California to kill him and threatened to kill Calvin if he told anyone. (RR23: 129-30). They were going to take the Appellant’s car to drive to California. (RR23: 130). Instead of going with Marcus, Jay, and Matt to California, the Appellant stayed with Calvin to make sure he was not going to go anywhere or say anything to anyone. (RR23: 130-32). The Appellant had a 12-gauge snotgun in the apartment with him and one night, about 3:00 in the morning, stuck it in Calvin’s face, asking him if he was going to tell anybody. *16 (RR23: 132-33). When Marcus, Jay, and Matt came back from California, they had all of Beau’s clothes, his CDs, his wallet, and his hat. (RR23: 133). The property was split up among the Appellant, Marcus, Jay, and Matt. (RR23: 133-34). The Appellant took the hat, a couple of shirts, and CDs. (RR23: 133-34).

In addition to Calvin’s testimony, a tape of a phone call the Appellant made from the Denton County Jail to Detective Boldt (of the San Bernardino Sheriff’s Department in California) was admitted into evidence. (RR23: 119). In the phone conversation, Appellant said he was calling to give the location of some of Beau’s property - that they were in the trunk of the car Marcus Rhodes was driving and that the Denton County Police Department has the photos of the trunk of the car. (State’s Exhibit 122). On the tape, Appellant states that the gun used to kill Beau is evidence in his trial and that the property taken from Beau is documented in photos admitted during his trial. Appellant also explains his theory about why Jeremy wanted Beau dead. (RR23: 121-23; State’s Exhibit 122).

Furthermore, Stephen Price testified about a conversation he had with the Appellant in the Redwood Forest in California. Appellant told Mr. Price that he killed Ron (and Beth) because Ron was a threat to go to the police about Beau Sanders’ murder and that Marcus and two other people went to California, where Beau was murdered. (RR23: 135-36).

Based upon the fact that the jury was able to learn about Appellant’s involvement in Beau Sanders’ murder through the testimony of *17 Michael Clavin, Stephen Price, and Appellant’s own statements in his telephone call to Detective Boldt, the admission of the interview with Detective Toms, if error, was harmless. See Davidson v. State, 42 S.W.3d 165 (Tex. App.--Fort Worth 2001, no pet.). See also Nonn v. State, 117 S.W.3d 874 (Tex. Crim. App. 2003).

Appellant’s Point Of Error VI should be overruled.


(In Response To Appellant’s Points Of Error VII And VIII)

APPELLANT WAIVED ERROR BY NOT OFFERING THE EVIDENCE FOR THE PURPOSE OF SHOWING













BIAS, MOTIVE; EVIDENCE OF THE EFFECT OF PAROLE ON THE WITNESS’S SENTENCE WAS PROPERLY EXCLUDED; ALTERNATIVELY, ANY ERROR WAS HARMLESS.


In Appellant’s seventh and eighth points of error, he argues that the trial court erred in denying his request to cross-examine State’s witness Brian Young on the length of his sentence and the prospects for parole.

On direct examination, Brian Young testified for the State. Young knew the Appellant and testified that Appellant normally hung out at Insomnia, a coffee shop in Deep Ellum, with Jay and Marcus Rhodes. (RR20: 75-77). Appellant appeared to be the leader of the group. (RR20: 78). Young also knew the victim, Ron Whitehead, whose nickname was “Miles.” (RR20: 83). During the three-day period leading up to the murders on May 2, Appellant’s appearance became more and more frayed. Appellant told Young that he *18 had been up for an entire three days taking speed. (RR20: 84-85). Over the three-day period, Appellant repeatedly mentioned the fact that he wanted to kill someone, becoming more and more intent about it as the days went by. (RR20: 84-86). Young also testified that on the evening of May 1, he asked Marcus Rhodes for a ride home from work. (RR20: 86-87). Marcus had been looking for the Appellant, but Young talked him into leaving to give him a ride. (RR20: 87). When Young and Marcus went out to Marcus’s car, the Appellant approached Marcus, said he needed to talk to him about Ron, and got in the back seat. (RR20: 88-89). Almost immediately, the Appellant began to speak to Marcus about killing Ron. Appellant stated that he wanted to kill Ron by stabbing him, shooting him, and cutting his throat. Appellant knew a good place to leave the body. (RR20: 88-90). During the conversation about killing Ron, Young saw Appellant putting on latex gloves and asked him if he was putting those on to avoid fingerprints. Appellant responded “Yeah.” (RR20: 90-91). Young was scared and freaked out by the conversation and thought that he would be the one killed if he warned anyone. (RR20: 91-92). Nevertheless, on May 4, after he found out about the murders, he did go to the police and give them a statement. (RR20: 92-93). Young also testified that he had been convicted of misdemeanor theft over $50; that he had been convicted of a State jail felony possession of a controlled substance under one gram; and that he had been convicted of the felony offense of aggravated assault. (RR20: 93-94).*19 On cross-examination, the defense tried to establish that Appellant’s behavior - vacant stares and incoherent thoughts - were indicative of Appellant being under the influence of drugs and that the witness had also used drugs. (RR20: 96-98). The defense established that although the Appellant had been talking about killing someone for the past three days, Young apparently was not threatened by the Appellant since he got in the car with him for a ride and that there was no indication that the witness himself was being threatened. The defense attempted to impeach Young with inconsistencies in his statement and the fact that he never directly contacted authorities, but was contacted by the authorities through someone else. (RR20: 102-03, 110-12). During cross-examination, Young also testified that the conviction for possession of a controlled substance was after these events in early May and due to the fact that his probation had been revoked because of another charge. (RR20: 98). Young also testified that the conviction for aggravated assault occurred after this three-day period in May. (RR20: 99).

In a hearing outside the presence of the jury immediately prior to Young’s testimony, the defense sought to cross-examine Young about the length of the sentence he was currently serving and that he could be released early and placed on parole:

Q. And, Brian, you are currently in custody for a criminal offense, correct?

A. Yes.

*20 Q. You are - you were recently sentenced to do a two-year sentence in the Texas Department of Corrections?

A. Yes.

Q. And you’re currently serving that sentence right now?

A. Yes.

Q. That conviction was for the second-degree felony of aggravated assault?

A. That’s correct.



Q. And also for the felony offense possession of a controlled substance?

A. Not the two years, no. I’ve already served the time for this, if that’s what you’re asking.

Q. What was your sentence on that?

A. Six months.

Q. Was it a State jail offense?

A. Yes.

Q. Okay. Now, is it your testimony that no one has promised you anything in exchange for having you testify here today?

A. That’s correct.

Q. Okay. You are aware, however, that - let me back up.

How long - of that two-year sentence, how much time have you served so far?

A. Eight months, almost.

*21 Q. So you could be facing the remainder of the two-year sentence, correct?

A. I could be. Logically so, yes.

Q. But you also understand that there’s such a thing as parole in TDC?

A. Yeah.

Q. And that you could in fact be released early from the remainder of your two-year sentence and placed out on parole?

A. It’s possible, yes.

Q. Okay. And you - do you have a basic understanding of how parole works? Has anybody described that to you?

A. I have just recently begun to -

Q. Okay. And you know that parole also counts into its calculations good time, correct?

A. Yes.

Q. Is it your expectation that you might possibly be - get some kind of favorable treatment or good time because of the fact that you’re testifying on behalf of the State in another criminal case?

A. From my understanding, my case does not merit good time because it is an aggravated charge, and as for the rest of that, I have absolutely no idea.

Q. Okay.

(Pause in Proceedings)

MR. ADAME: I pass the witness at this time.

THE COURT: Is it your position that you intend to try to ask those questions in front of the jury?

*22 MR. ADAME: It is, Judge.



THE COURT: Is there an objection from the State?

MR. MOORE: We object, Your Honor. Irrelevant, improper impeachment under 609, and there are no offers or agreements in exchange for his testimony.

THE COURT: I’m going to sustain the objection. The record has been made.

MR. ADAME: Yes, ma’am.

THE COURT: All right. Let’s get the jury.

(RR20: 71-74).

Initially, the State submits that Appellant has not properly preserved error. The State objected to Appellant’s proffer under Texas Rule of Evidence 609. Nothing in Appellant’s proffer invoked the vulnerable relationship theory in a manner that reasonably informed the trial court that he was offering the testimony as evidence of motive, bias, or interest on behalf of the State. See Carroll v. State, 916 S.W.2d 494 (Tex. Crim. App. 1996); Maxwell v. State, 48 S.W.3d 196 (Tex. Crim. App. 2001). Since Appellant’s claim on appeal does not comport with the proffer at trial, Appellant has waived error. TEX. R. APP. P. 33.1(a). See also Broxton v. State, 909 S.W.2d 912, 918 (Tex. Crim. App. 1995); Johns v. State, No. 14-02-00206-CR, 2003 Tex. App. LEXIS 3691 (Tex. App.--Houston [14th Dist.] May 1, 2003) (not designated for publication); Miller v. State, No. 13-00-291-CR, 2002 Tex. App. LEXIS 6451, *8 (Tex. App.--Corpus Christi August 30, 2002) (not designated for publication).

*23 Secondly, while the State recognizes that the Rules of Evidence recognize the right to impeach a witness by proof of circumstances or statements showing bias or interest (TEX. R. EVID. 613(b)) and that a defendant must be given great latitude to show any fact that would tend to establish a bias or motive on the part of the witness testifying against him, 4 the State submits that questions pertaining to a witness’s length of sentence and prospects for parole do not show motive or bias absent a connection between the prospects for parole and the witness’s testimony at trial and, therefore, serves no other purpose than to improperly admit evidence of parole laws. See Willingham v. State, 897 S.W.2d 351 (Tex. Crim. App. 1995); London v. State, 739 S.W.2d 842 (Tex. Crim. App. 1987). Unlike the situation where the witness has a pending criminal charge or is on probation, it cannot be said that the possibility for parole necessarily creates a vulnerable relationship with the State. As the juries are instructed in case after case, “Eligibility for parole does not guarantee that parole will be granted. It cannot accurately be predicted how the parole law and good conduct time might be applied to this defendant ... because the application of these laws will depend on decisions made by prison and parole authorities.” TEX. CODE CRIM. PROC. ANN. art. 37.07 § 4 (Vernon Supp. 2004). While it is no secret that a prosecuting district attorney’s office is notified by the Board of Pardons and Paroles when an inmate is being considered for parole and given an opportunity to send a letter stating its position, the prison authorities, the *24 victims, and other interested agencies or citizens are also notified and given an opportunity to offer input. The prosecuting office does not hold the keys to the prisoner’s continued incarceration and is not privy to any other information being used or submitted to the Parole Board for their consideration in any given case.In the instant case, there was no connection between Young’s testimony and his prospects for parole on his prior conviction. Young stated that good time credit did not apply to his conviction and that he had no expectation for favorable treatment. Furthermore, the testimony showed that Young had given his statement to the police about what he testified to before he was convicted and sent to prison. Accordingly, the trial court did not err in refusing to allow the proffered testimony.

Even if it was error not to allow cross-examination on Young’s prospects for parole, error was harmless. First, Young was already impeached with his three prior convictions and some inconsistencies in his statement and his testimony. Second, contrary to Appellant’s assertion, Young’s testimony was not integral to the State’s case in the sense that the State could not have obtained a conviction without him. Besides all of the circumstantial evidence connecting *25 Appellant to the offense,5

no less than five witnesses testified that Appellant admitted to them that he committed the murders.

Whitney Rios testified that the day after the murders, she was at Insomnia and the Appellant told her that Ron had been murdered, showed her an article from the internet about the double homicide, and said that was what he had done last night. Appellant told her that he and Marcus took Ron in the car towaros The Colony and killed him because Ron had screwed him over a drug deal. (RR20: 210-14).














Melissa Byron testified that after the murders, she took the Appellant to New Orleans and while in New Orleans, she heard the Appellant tell other people that he had killed people in Dallas. She also heard Appellant specifically say to someone, “I’ll kill you like I did those people in Dallas.” (RR20: 230-31).

Staci Schwartz testified that Appellant and Marcus told her about the murders the day it happened, giving her specific details of how it happened. (RR20: 248-52).

*26 Julie Smith, the Appellant’s ex-fiancé, testified that on the day of the murders, Appellant e-mailed her, telling her that Ron was not coming to work that day. (RR21: 12). When she went to Insomnia to find out what was going on, she asked Appellant if he had been involved in the murders, to which he responded “Very.” (RR21: 13-14).

Gary Don Franks, an inmate sharing a cell in the Denton County Jail with Appellant, testified that he and Appellant had hundreds of conversations about the murders, that Appellant told him he killed Ron and Beth and gave him specific details about how the murders were committed. (RR21: 31-40, 53; RR22: 151-53).

Stephen Price testified that before he moved to California, he used to live in Dallas and hung around Insomnia. (RR22: 56-58). In June 2001 he saw Appellant in Redwood Park in California. (RR22: 60). Appellant asked him for help and said that he had been to Idaho and New Orleans and that he was thinking about going to Mexico. (RR22: 64). Appellant told him that he and Marcus had murdered Ron and Beth, that he shot them and cut their throats. (RR22: 65-66).

Based upon the overwhelming evidence connecting Appellant to the murders, the cumulative nature of Young’s testimony, the other evidence of guilt that also corroborated Young’s testimony, the extent of the cross-examination allowed, and the fact that Young’s testimony had been impeached with other evidence, it is clear that error was harmless. See *27 TEX. R. APP. P. 44.2(a). See also Delaware v. Van Arsdall, 475 U.S. 673, 89 L. Ed. 2d 674, 106 S. Ct. 1431 (1986); Maxwell, 48 S.W.3d at 200; Carroll, 916 S.W.2d at 501.Appellant’s Points Of Error VII and VIII should be overruled.


(In Response To Appellant’s Points Of Error IX, X, XI, And XII)

STATEMENTS MADE BY CO-DEFENDANT MARCUS RHODES TO TWO FRIENDS DID NOT VIOLATE APPELLANT’S RIGHT TO CONFRONTATION AND WERE PROPERLY ADMITTED UNDER TEX. R. EVID.

803(24); ALTERNATIVELY, ERROR WAS HARMLESS.


In four points of error, Appellant claims that admission of statements made by co-defendant Marcus Rhodes to David Samuelson and Staci Schwartz violated his Sixth Amendment right to confrontation and did not fall within the hearsay exception for the admission of statements against the declarant’s interest because there was insufficient corroborating circumstances to clearly indicate the trustworthiness of the statements made by Rhodes.

David Samuelson testified that he was twenty-one years old and went by the name of Sammy. (RR20: 138). During the day he worked at Baylor Hospital, and in the evenings he was a club DJ in Deep Ellum. (RR20: 139). Samuelson knew the Appellant and knew who he hung around - Marcus, Jerry Starks (Jay), and Matthew (Punky). (RR20: 140-41). He also knew the victim, Ron Whitehead. (RR20: 141). On May 1, Samuelson was at Insomnia until he left at *28 6:30 p.m. to go to the Sand Bar, where he was working that night. (RR20: 141-42). Thirty to forty-five minutes after Ron and Beth arrived at the Sand Bar, Marcus and the Appellant arrived. (RR20: 150). Appellant and Marcus approached Ron about a drug deal in The Colony that night. (RR20: 152-53). Samuelson then saw all four of them leave around midnight in two separate cars - Ron and Beth, Appellant and Marcus. (RR20: 153-54). Samuelson saw Appellant and Marcus come back around 3:00, 3:10, 3:15 a.m., and Marcus had a gun. (RR20: 154-55).











Samuelson was also allowed to testify that earlier in the evening, before he went to the San Bar, he was at the Insomnia Coffee Bar and had a conversation with Marcus on the street about twenty feet from the front door. Marcus told him “that he had a job to do for Halo that he did not want to do” and that the job was “tonight.” (RR20: 155-56).

Samuelson testified that he found out about the murders the following day. (RR20: 157). Samuelson also testified that on the days that followed, he received in the mail a denied credit card slip for a purchase of tickets to an Anime festival made on Beth’s credit card. (RR20: 158-59). Samuelson had never ordered tickets to this festival and did not know anything about Beth. (RR20: 158-59).

On cross-examination, the defense attempted to discredit the statement by Marcus as being typical Marcus BS, bringing out the fact that Samuelson had described Marcus to the police as a pathological liar. (RR20: *29 164, 185-87). Samuelson testified that Marcus would tell tall tales a lot and exaggerate. (RR20: 16465).

Staci Schwartz testified that in April and May 2001, she often went to the Insomnia Coffee Bar after school. (RR20: 242). Appellant hung around Marcus and Jay and appeared to be the leader of the group. (RR20: 243-44). Schwartz found out that Ron and Beth had been murdered on the afternoon of the day it happened because Appellant and Marcus told her. (RR20: 245, 248). When Schwartz did not believe what Appellant was telling her, Appellant tried to convince her by giving her the specific details of how the murder took place and showed her the hat Ron always wore. (RR20: 248-53). Marcus showed her Ron’s property in the trunk of the car. (RR20: 252). Marcus also showed Schwartz Beth’s credit card, Beth’s I.D., and a bunch of the stuff in the trunk that belonged to Beth. (RR20: 258). Schwartz was allowed to testify that Marcus told her that he and Appellant had used Beth’s credit card to purchase tickets to an Anime festival and had them sent to Sammy Samuelson’s house in an attempt to make it look like Samuelson had Beth’s credit card. (RR20: 257-58).TEX. R. EVID. 803(24)

A statement against a co-defendant’s interest that also inculpates the defendant can be admissible under TEX. R. EVID. 803(24) so long as it is sufficiently against the declarant’s interest to be reliable (in other words, if it is truly inculpatory) and there are corroborating circumstances that clearly indicate the trustworthiness of the statement. *30 Dewberry v. State, 4 S.W.3d 735 (Tex. Crim. App. 1999), citing Williamson v. United States, 512 U.S. 594, 603, 129 L. Ed. 2d 476, 114 S. Ct. 2431 (1994). Whether a statement is in fact against the interest of the declarant must be determined from the circumstances of each case. Williamson, 129 L. Ed. 2d at 484; Cofield v. State, 891 S.W.2d 952, 956 (Tex. Crim App. 1994).

In addition to the requirement that the statement be against the declarant’s penal interest, Rule 803(24) requires that there be corroborating circumstances sufficiently convincing to clearly indicate the trustworthiness of the statement. In Dewberry, this Court reaffirmed the requirements for corroboration first set out in Davis v. State, 872 S.W.2d 743 (Tex. Crim. App. 1994). In determining the existence of corroborating circumstances, a trial court should consider a number of factors:

(1) whether guilt of the declarant is inconsistent with guilt of the defendant;

(2) whether the declarant was so situated that he might have committed the crime;

(3) the timing of the declaration;

(4) the spontaneity of the declaration;

(5) the relationship between the declarant and the party to whom the statement is made; and

(6) the existence of independent corroborative facts.

Dewberry v. State, 4 S.W.3d at 751. See also Bingham v. State, 987 S.W.2d 54, 58 (Tex. Crim. App. 1999).

*31 The statements made by Marcus Rhodes to David Samuelson and Staci Schwartz are clearly admissible under Rule 803(24). They are sufficiently self-inculpatory because they clearly implicate both Marcus and the Appellant in the murders of Ron and Beth. Furthermore, the evidence at trial showed that Marcus’s statements bore the necessary indicia of trustworthiness. Marcus’s guilt is not inconsistent with Appellant’s guilt. The evidence at trial showed that Marcus and


















Appellant acted together throughout the commission of the crime. They were seen together with the two victims immediately before and after the murders, demonstrating that Marcus was situated so that he could have committee the offense. In addition, Marcus’s statements were made before he or Appellant became suspects and were made spontaneously to friends or in response to casual questions. Neither of the friends to whom Marcus made the statement was connected to the commission of the crime. And finally, the State developed independent corroborative facts that verified Marcus’s statements. Ron and Beth were murdered the night Marcus told Samuelson he would have to do the job for Appellant. Appellant admitted to numerous people that he wanted Ron dead and that he and Marcus murdered him (and Beth). The physical evidence corroborated Appellant’s version of how the murders were committed, and the murder weapons and property of the victims were found in Marcus’s car and home and in Appellant’s possession. Furthermore, the statement to Schwartz regarding the use of Beth’s credit cards was corroborated by the testimony of Samuelson.

*32 Confrontation Clause

Despite admissibility under the Texas Rules of Evidence, admission of hearsay evidence against a criminal defendant also implicates the Confrontation Clause of the Sixth Amendment. Recently, in Crawford v. Washington, No. 02-9410, 2004 U.S. LEXIS 1838, _____ U.S. _____, 124 S. Ct. 1354 (March 8, 2004), the Supreme Court overruled Ohio v. Roberts, 448 U.S. 56, 100 S. Ct. 2531, 65 L. Ed. 2d 597 (1980), to the extent that it applied to “testimonicil” statements and held that in order for out-of-court statements that are testimonial in nature to be admissible in a criminal trial, the Confrontation Clause requires that the declarant be unavailable and that the defendant had a prior opportunity for cross-examination. The Supreme Court drew a distinction between testimonial hearsay statements and those deemed nontestimonial, stating: “Where nontestimonial hearsay is at issue, it is wholly consistent with the Framers’ design to afford the States flexibility in their development of hearsay law - as does Roberts, and as would an approach that exempted such statements from Confrontation Clause scrutiny altogether.” Id., slip op. at pp. 32-33. Thus, nontestimonial hearsay statements may still be admitted as evidence against an accused in a criminal trial, regardless of whether the defendant had an opportunity to cross-examine the declarant, if it satisfies both prongs of the Roberts test. The Supreme Court declined to define the term *33 “testimonial” but considered three formulations of the core class of testimonial statements:(1) ex parte in-court testimony or its functional equivalent, such as affidavits, depositions, prior testimony that the defendant was unable to cross-examine or similar pretrial statements that declarants would reasonably expect to be used prosecutorially;

(2) extrajudicial statements contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions; and

(3) statements that were made under circumstances that would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.

Crawford v. Washington, slip op. at pp. 15-16. The Supreme Court did not adopt any particular formulation, noting that “These formulations all share a common nucleus and then define the Clause’s coverage at various levels of abstraction around it. Regardless of the precise articulation, some statements qualify under any definition - for example, ex parte testimony at a preliminary hearing.” Id., slip op. at p. 16. Similarly, “statements taken by police officers in the course of interrogations are also testimonial under even a narrow standard.” Id., slip op. at p. 16. Therefore, “whatever else the term [‘testimonial’] covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations. These are the modern practices with closest kinship to the abuses at which the Confrontation Clause was directed.” Id., slip op. at p. 33.

*34 The statements from Marcus Rhodes to David Samuelson and Staci Schwartz do not fall within any of the formulations of the core class of testimonial statements discussed by the Supreme Court in Crawford. They were statements made on his own initiative to friends before any suspects had been identified and at a time that the co-defendant apparently believed that he and the Appellant would “get away with murder.” Accordingly, because these statements were nontestimonial in nature, application of the Roberts test remains appropriate.In Roberts the Supreme Court held that the Confrontation Clause is satisfied if the hearsay statement being introduced against a defendant bears sufficient “indicia of reliability”. Roberts, 448 U.S. 56. A hearsay statement is per se reliable under the Confrontation Clause if it falls within a “firmly rooted” exception to the hearsay rule. White v Illinois, 502 U.S. 346, 356, 116 L. Ed. 2d 848, 112 S. Ct. 736 (1992); Idaho v. Wright, 497 U.S. 805, 817, 111 L. Ed. 2d 638, 110 S. Ct. 3139 (1990). This











Court has held that a statement against penal interest *35 is a “firmly rooted exception”. Guidry v. State, 9 S.W.3d 133, 150 (Tex. Crim. App. 1999); Dewberry v. State, 4 S.W.3d at 753.6

Even if a hearsay statement does not fall within a “firmly rooted” exception, it may satisfy the Confrontation Clause if it has ‘”particularized guarantees of trustworthiness”. Wright, 497 U.S. at 816; Roberts, 448 U.S. at 66. In evaluating the trustworthiness of the hearsay evidence, the court looks at the totality of the circumstances, considering “only those [circumstances] that surround the making of the statement that render the declarant worthy of belief.” Guidry, 9 S.W.3d at 150, citing Wright, 497 U.S. at 819. The trustworthiness requirement is satisfied if it can be concluded that cross-examination would be of only “morginal utility.” Guidry, 9 S.W.3d at 150, citing Wright, 497 U.S. at 822.

The State submits that review of the circumstances under which the statements by Marcus were made shows that they are sufficiently reliable to withstand scrutiny under the Confrontation Clause. As already set forth herein, *36 the statements were squarely against Marcus’s penal interest. Furthermore, they were spontaneous statements made to friends unconnected to the crime and unconnected to law enforcement. Finally, the timing of the statements bolster their reliability - one statement was made the same evening before the crime occurred, and the other statement was made the very next day, before Marcus had time to reflect and before Marcus and Appellant were suspects.

Harmless Error

Even if admission of Marcus’s statements to Samuelson and Schwartz was error under Texas Rule of Evidence 803(24), or the Confrontation Clause, error was harmless. As set forth in State’s Counterpoint 5 herein, Marcus’s statement was not the only evidence that connected Appellant to the crime. Appellant admitted his involvement to numerous friends and acquaintances. The crime scene evidence, the autopsy of the bodies, and circumstantial evidence, including the recovery of the victim’s property and the murder weapons, all corroborate the details of those admissions. Marcus’s statements were a minor piece of evidence when considered in proportion to all of the evidence presented. Therefore, it is hard to imagine how the admission of these statements could have affected the jury’s verdict.

Appellant’s Points of Error IX, X, XI, and XII should be overruled.

*37 STATE’S COUNTERPOINT 7, RESTATED

(In Response To Appellant’s Points Of Error XIII And XIV)



In two points of error, Appellant claims that the trial court erred by submitting a jury charge distinguishing reasonable doubt from possible doubt both at the guilt-innocence phase and at the punishment phase. Appellant claims that under this Court’s holding in Paulson v. State, 28 S.W.3d 570 (Tex. Crim. App. 2000), it is error to instruct a jury on the definition of “reasonable doubt” and that the charge given in the instant case constitutes a definitional instruction of reasonable doubt. 7

The charge given in the instant case does not constitute a definition of “reasonable doubt,” and numerous courts of appeal throughout the state has *38 so held.8 As was pointed out by the Dallas Court of Appeals in O’Canas, the instruction “simply states the legally correct proposition that the prosecution’s burden is to establish proof beyond a reasonable doubt and not all possible doubt. [It] does not attempt to aid jurors in determining their doubts are reasonable.” Id. at 19. As noted in O’Canas and also by the Austin court in Rodriguez, prospective jurors are often instructed during voir dire that the State’s burden of proof does not require proof beyond all doubt. Any prospective juror who states that they cannot convict unless guilt is proven beyond all doubt are stricken for cause. O’Canas, at 19; Rodriguez, 96 S.W.3d at 405; Coleman v. State, 881 S.W.2d 344, 360 (Tex. Crim. App. 1994).


















The prospective jurors in the instant case were instructed and voir dired on the State’s burden of proof as being beyond a reasonable doubt as opposed to beyond all doubt. (RR3: 24-25; RR6: 27-28; RR7: 157-71; RR8: 5-6; RR10: 26, 69-70; RR11:55-56, 104-05; RR12: 112-14; RR14: 25-26; RR15: 110-11; RR16: 33-34). Nothing in Paulson suggests that giving a correct statement of the law *39 that happened to be contained within the Geesa9 instruction would be considered error. Id. at 18; Fluellen, 104 S.W.3d at 164. In fact, in Paulson this Court specifically sets forth what part of the Geesa instruction it believes defines “reasonable doubt.” This Court states that the Geesa instruction “attempts to define reasonable doubt three times” and quotes paragraphs [4] and [5] as constituting those three attempted definitions. Paulson, 28 S.W.3d at 572. This court never stated that the language in paragraph [3] of the Geesa instruction distinguishing “reasonable doubt” from “all possible doubt” defined reasonable doubt. O’Canas at 18.

Appellant’s Points Of Error XIII and XIV should be overruled.


(In Response To Appellant’s Point Of Error XV)

APPELLANT’S QUESTION TO JUROR KERI DENISE WYRICK CONSTITUTED AN IMPROPER COMMITMENT QUESTION; IF PROPER, THE TRIAL COURT’S REFUSAL TO ALLOW THE QUESTION WAS

HARMLESS ERROR.


In Point Of Error XV, the Appellant claims that the trial court improperly restricted voir dire questioning of Juror Keri Denise Wyrick when it sustained the State’s objection to the following question:

Q. Could you do that even if you’d already found a defendant guilty beyond a reasonable doubt of committing a capital murder, you’d found special issue number 1, that *40 the State proved that beyond a reasonable doubt, that you found on special issue number 2 that the State proved that beyond a reasonable doubt? If the State did all that, could you still support and vote for a life punishment if you found a sufficient mitigating circumstance?

(RR7: 135).

A trial court has broad discretion over the process of selecting a juror. Barajas v. State, 93 S.W.3d 36, 38 (Tex. Crim. App. 2002). The propriety of a particular question is left to the discretion of the trial court and will not be disturbed absent an abuse of discretion. Id. When the trial court prohibits a proper question about a proper area of inquiry, the trial court abuses its discretion. Id. at 38. A proper question seeks to discover a juror’s views on an issue applicable to the case. Id. at 38. However, it is improper to ask a commitment question during voir dire because it would amount to an improper attempt to bind a juror. Id. at 38. Nevertheless, not all commitment questions are improper. Standefer v. State, 59 S.W.3d 177 (Tex. Crim. App. 2001). In Standefer, this Court stated that for it to be a proper commitment question, one of the poss ble answers to the question must give rise to a valid challenge for cause and the question must also contain only those facts necessary to test whether a prospective juror is challengeable for cause. Id. at 182. See also Sells v. State, 121 S.W.3d 748, 757-58 (Tex. Crim. App. 2003).

Appellant claims that the question in the instant case merely asks the juror if she could follow the law requiring her to give fair consideration to mitigating evidence even after she has answered the future dangerousness and *41 anti-parties issues affirmatively. If that was what the question asked, the State would be compelled to agree with Appellant. However, the State believes that the question not only fails to give rise to a valid challenge for cause, but also improperly asks the juror to render a verdict contrary to the law. The question in the instant case asks the juror to do more than give consideration to mitigating evidence; it asks the juror to commit to giving the mitigating evidence favorable effect. The law does not require a juror to give any particular weight to any particular piece of evidence; the law only requires that the Appellant be allowed to present relevant mitigating evidence and that the jury be provided a vehicle to give mitigating effect to that evidence if the jury finds










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it to be mitigating. Raby v. State, 970 S.W.2d 1, 3, 12 (Tex. Crim. App. 1998); see also Standefer, 59 S.W.3d at 181-82 (and cases cited therein). In addition, the question in the instant case asks the juror to commit to voting “for life imprisonment” if there is sufficient mitigating evidence. Under the law and the charge given in a capital murder case, a juror is not voting for death or life imprisonment, but rather is required to answer three special issues either “yes” or “no.” The fact that the answers to the special issues result in a sentence of either life or death does not change the question to be asked, especially when the *42 fact that the answer to each special issue is to be considered separately and without regard to the answer to the other special issues.10

Even if this Court disagrees with the State’s contention that the question posed by Appellant constituted an improper commitment question, improper limitation of questioning during voir dire is subject to a harm analysis. Gonzales v. State, 994 S.W.2d 170, 171 (Tex. Crim. App. 1999). The Texas Constitution’s right to counsel encompasses the right to ask proper questions in order to intelligently exercise peremptory challenges and challenges for cause. Taylor v. State, 109 S.W.3d 443 (Tex. Crim. App. 2003); Raby v. State, 970 S.W.2d at 10. Under Texas Rule of Appellate Procedure 44.2(a), the judgment of conviction or punishment must be reversed unless the court of appeals determines beyond a reasonable doubt that the error did not contribute to the conviction or punishment. The State submits that under this standard, error, if any, was not harmful. The record shows that Appellant was able to ask the substance of his question immediately following the prohibited question, wherein the following exchange took place:Q. (BY MR. PARR) Would you be able to follow the law as to special issue number 3 if you found even one sufficient mitigating circumstance?

A. Yes.

*43 Q. Would you do that even if other people didn’t agree with you on the jury panel?

A. Yes.

(RR7: 135). Furthermore, the questioning by the State regarding the mitigation issue essentially covered the substance of Appellant’s question:

Q. Okay. Let’s talk about the mitigation issue, issue number 3. Now, that is - as the Judge put it on Monday morning, that’s the mercy issue. I mean, if you’ve gotten to special issue 3, you found somebody guilty of capital murder, you decided they’re a future danger to society, you decided that they either actually caused the death, intended to cause the death, or anticipated that a human life would be taken - that’s special issue number 2 - and now you’re at issue 3. And this person is going to receive the death penalty unless you decide that they deserve life imprisonment.

And what issue 3 tells you to do is stop, hold on a second, and make sure this is what you want to do, and look at all the evidence one more time. And that’s all it is. It’s not telling you you have to find it. It’s not telling you that there is mitigation. All it’s telling you is you have to look for it. Okay.

Can you agree to do that?

A. Yes.

Q. There might be mitigation and there might not be mitigation. It could go either way. But all you’re ordered to do is to look for it. And let’s say you find something that might be mitigating, whatever it is. That’s not the end of the looking at it. What you do is, if you find something that might be mitigating, you have to decide in your mind is it sufficient to convince me that this person deserves life instead of death. Okay.

Does that make sense?

A. Uh-huh.

Q. You’re kind of looking at me like I might be -

*44 A. I’m just concentrating.











Q. Okay. Sorry. Sometimes I ask too long of questions and I don’t give a chance for you to talk, so please, if I’m talking too much, just interrupt me.

A. You’re fine.

Q. Okay. Do you have any questions about the mitigation issue?

A. No.

Q. Now, mitigation can be anywhere you find it. I mean, there’s no burden of proof. There’s no answer as soon as you sit down and look at the third issue. You just look at it. You look at maybe the evidence we presented. You look at all the evidence and decide, is there anything in there that’s mitigating. And it can be anything.

For example, it could be whether a person was intoxicated at the time they did the offense. One person or one juror might look at that and say, you know, they were out of their mind, you know, they didn’t know what they were doing, so I consider that mitigating, essentially, on behalf of the defendant. Where another juror could look at that and say, well, you know, they voluntarily took that stuff into their system, they knew right from wrong, I mean, I have friends who become intoxicated and they don’t go out and do criminal acts, so no, I don’t think that’s mitigating.

So can you see how different people can look at different things?

A. Yes.

Q. And can you agree with me to search for mitigating evidence?

A. Yes.

*45 Q. Like I said, you don’t have to find it because it might not be there. You just have to agree to look for it, okay?

A. Yes.

Q. Okay. Okay. Good. I’m going to ask you a couple more questions. What kind of evidence do you think would be helpful for you in answering all of these? If you’re a juror and, you know, you’re asked to answer whether a person is a future danger or whether there is mitigating evidence, I mean, what kind of things would be important to you to learn? How about I throw a few things at you and maybe you can tell me.

A. Yeah, maybe so.

Q. How about a person’s background?

A. Okay. I see where you’re coming from. Background, yes.

Q. Criminal history? Circumstances of the crime?

A. Yes.

Q. Those things would be important for you?

A. Yes, those would.

Q. Okay. Okay. And all these - all of these issues, all these questions are all independent of each other. And what I mean by that is it’s kind of a stair-step deal where, you know, you answer each one independent of the other. And I’m kind of going back to what I said before. If you’re at the mitigation issue, you’re at the final stage. You’ve already convicted somebody of capital murder. You’ve decided that they’ve done this hideous crime. You then have to decide they’re a future danger. You then have decided yes to issue 2.



Now here you are at the mitigation issue, and you just have to commit to look through all the evidence and make sure there’s nothing in there that’s mitigating. Can you *46 agree to answer each one of them independent from the other and without a result in mind?

A. Yes.

(RR7: 112-15).

Based upon the voir dire of this juror by both the State and the Appellant, it is clear that Appellant was able to intelligently exercise his peremptory challenges and any challenges for cause with regard to the mitigation issue. See Rivera v. State, 82 S.W.3d 64 (Tex. App.--San Antonio 2002, pet. ref’d). In addition, the record shows that Appellant did not use a peremptory strike on this venire member and she was seated as a juror. (RR7: 141). Although the record shows that Appellant did eventually exhaust all of his peremptory strikes and did request an additional strike, there is no evidence in the record that any juror seated was objectionable. (RR16: 266-67, 272; RR17: 96-97). Accordingly, Appellant cannot show how he was harmed. Janecka v. State, 937 S.W.2d 456, 470-71 (Tex. Crim. App. 1996).

Appellant’s Point Of Error XV should be overruled.


(In Response To Appellant’s Points Of Error XVI And XVII)

APPELLANT’S QUESTIONS TO VENIREPERSON MICHAEL RUDOLPH ZIEGLER AND JUROR JERRY LINSLEY PERTAINING TO THE YOUTH OF THE VICTIMS CONSTITUTED AN IMPROPER COMMITMENT

QUESTION.

*47 ARGUMENTS AND AUTHORITIES

In Point Of Error XVI, the Appellant claims that the trial court improperly restricted voir dire questioning of venireperson Michael Rudolph Ziegler when it sustained the State’s objection to the following question: “Could you be fair and impartial in a murder case where the people killed were under 25 years of age?” (RR3: 269).

In Point Of Error XVII, the Appellant claims that the trial court improperly restricted voir dire questioning of juror Jerry Linsley when it sustained the Stat’s objection to the following questions: “Can you be impartial if one of the victims is a young woman? Can you consider the life penalty if a victim was a young woman?” (RR10: 151-52).

The general standard of review and the law regarding the propriety of commitment questions has been set forth in Counterpoint 15 and is incorporated herein for all purposes.

Since the opinion was issued in Standefer v. State, 59 S.W.3d 177, this Court has revisited the issue of what constitutes an improper commitment question on more than one occasion, specifically overruling the holding in Nunfio v. State, 808 S.W.2d 482 (Tex. Crim. App. 1991), that parties may ask whether a veniremember can be impartial under a particular set of facts. Barajas v. State, 93 S.W.3d 36, 41-42 (Tex. Crim. App. 2002). In Barajas the appellant was charged with indecency with a child; his attorney tried to ask veniremembers if they could be fair and impartial in a case in which the victim *48 was nine years old. This Court found that the victim’s age was not relevant to determining guilt because it was not a fact of consequence that tended to prove or disprove the appellant’s guilt and was not specific enough to give rise to a valid challenge for cause, either based on the resolution of the appellant’s guilt due to the victim’s age or a predisposition to decide the victim-witness’s credibility on the basis of her age. Id. at 39-40. This Court also found that although the age of a victim is a permissible consideration during the punishment phase, the question improperly sought to commit veniremembers to assess or refrain from assessing punishment on that basis. Id. at 40.In Sells v. State, 121 S.W.3d 748 (Tex. Crim. App. 2003), this Court considered the following question concerning the victim’s youth:











[By defense counsel] Q. That’s fine. Can you imagine a set of circumstances, set of facts where you would find a person guilty of capital murder, of killing a young girl where you would answer question number one no if you thought that that is the kind of case that was-

Id. at 758. This Court held that although the fact that a defendant has been convicted of the capital murder of a young girl is a factor that a juror could consider in determining punishment, the law did not require the juror to consider the factor or give it any weight. Accordingly, the juror would not have been subject to a challenge for cause and, thus, this constituted an improper commitment question. Id. at 758.

The State can glean no discernable difference between the questions prohibited in Barajas and Sells and the questions concerning the *49 victims’ youth prohibited by the trial court in the instant case. Appellant does not offer any authority or argument as to why these questions should be considered differently or why this Court’s holdings in Barajas and Sells should not be followed.

Even if this Court were to somehow find a substantive difference in the prohibited questions in the instant case, the trial court’s refusal to allow the questions was not harmful. In the case of veniremember Ziegler, immediately following the prohibited question, the following exchange took place:

Q. (BY MR. PARR) Is there anything about a circumstance where the victims are youthful that might make you feel like you could not be fair and impartial, that you might be biased?

A. No.

(RR3: 269-7)). Clearly, Appellant was able to ask the substance of his question and, thus, was able to intelligently exercise his peremptory challenges and any challenges for cause.

With regard to juror Linsley, the Appellant made no attempt to rephrase his question as he did with veniremember Ziegler. See Rivera v. State, 82 S.W.3d 64, 67. Furthermore, Appellant did not exercise a peremptory strike on this veniremember and he was seated as a juror. Although the record shows that Appellant did eventually exhaust all of his peremptory strikes and did request an additional strike, there is no evidence in the record that any juror seated was objectionable. (RR16: 266-67, 272; RR17: 96-97). Accordingly, *50 Appellant cannot show how he was harmed. Janecka v. State, 937 S.W.2d 456, 470-71 (Tex. Crim. App. 1996).Appellant’s Points Of Error XVI and XVII should be overruled.

CONCLUSION

WHEREFORE, PREMISES CONSIDERED, there being no error appearing in the record of the trial of the case, the State prays that this Honorable Court will affirm the judgment of the trial court below.

Footnotes1 Specifically, TEX. CODE CRIM. PROC. ANN. art. 38.22 § 3(c) states:

Subsection (a) of this section shall not apply to any statement which contains assertions of facts or circumstances that are found to be true and which conduce to establish the guilt of the accused, such as the finding of secreted or stolen property or the instrument with which he states the offense was committed.

2 The plan to murder Beau seemed initially to take shape because Beau wanted to go to California and asked Appellant to take him. Beau was supposed to cash checks for his employees, and Appellant, Marcus, and Jeremy were going to take the money, get cocaine, go to somewhere in Nacogdoches, Texas, or somewhere along the way where it would be easy to get out and kill Beau. The murder actually took place in California. (State’s Exhibit 119).

3 Appellant also told Detective Toms about the property taken at the crime scene by Marcus, Jay, and Matt and split up among themselves. However, except for the fact that Mrs. Sanders, the victim’s mother, identified a green bag that belonged to Beau in a photograph of items in the trunk of Marcus Rhodes’ car (RR23: 107; RR19; 214-15), there is no indication in the record where and when the rest of the property was recovered.







4 Carroll, 916 S.W.2d 494; Maxwell, 48 S.W.3d 196

5 Examples of that evidence consists of: numerous witnesses testified that they saw Appellant, Marcus, and the two victims leave together the night of the murders, and Appellant himself admitted that they left together (RR19: 193-94; RR20: 151-54); victim’s property found in the trunk of Marcus Rhodes’ car (RR19:211); previous threat by Appellant to kill Ron (RR20: 57-58); Appellant seen wearing Ron’s baseball cap after murders (RR20: 215, 251); Appellant’s flight to New Orleans, Idaho, and California after the murders and use of an alias name (RR19: 227; RR20: 225-27; RR22: 48, 641); Appellant seen with gun after murders (RR20: 59); denied credit charge slip from Beth’s credit cards for registration to festival (RR20: 158); Appellant seen giving Marcus high-five in jail saying, “I’ll see you in the death chamber.” and “Do you think they’ll execute us together?” [RR21: 53); bodies found near home Appellant said they were heading to in The Colony (RR19: 195-96); evidence of crime scene and autopsy of bodies corroborating Appellant’s statements to witnesses of how murders occurred (RR21: 105-17, 131-39,203-24; RR22: 15-35).

6 The holding by the Supreme Court in Lilly v. Virginia, 527 U.S. 116, 119 S. Ct. 1887, 144 L. Ed. 2d 117 (1999), does not change Texas law regarding the admission of co-defendant’s statements against penal interest that also inculpate the defendant. In Lily a plurality of the United States Supreme Court held that the admission of an accomplice’s custodial confession that attempts to lay sole responsibility on a criminal defendant does not fall within a “firmly rooted” hearsay exception. However, the holding in Lilly should not be applied to the admissibility of co-defendants’ statements under 803(24) of the Texas Rules of Evidence for several reasons: (1) a plurality opinion of the United States Supreme Court is not binding precedent. Texas v. Brown, 460 U.S. 730, 737, 103 S. Ct. 1535, 75 L. Ed. 2d 502 (1983); (2) the plurality’s inadequate treatment of court precedent and the fractured composition of the court dictate that the Lilly holding should be narrowly circumscribed to the facts of the case; (3) “ Lilly should not be understood to overrule those courts that have determined that genuinely self-inculpatory confessions to the authorities by an accomplice incriminating a defendant satisfy a firmly rooted hearsay exception ...” 113 Harv. L. Rev. 233 (1999); (4) the plurality left open the possibility that some custodial statements could pass the residual trustworthiness test under the second prong of Ohio v. Roberts. 2000 Army Law 63; and (5) a careful reading of Lilly shows that it should have no precedential value as to noncustodial statements.

7 The language which Appellant complains about is as follows:It is not required that the prosecution prove guilt beyond all possible doubt; it is required that the prosecution’s proof excludes all “reasonable doubt” concerning the Defendant’s guilt.(CR3: 700). The same language was also used with regard to the burden of proof as to Special Issue Nos. 1 and 2. (CR3: 704).

8 The following is not an exhaustive list of cases, but is intended to give a sampling of the many different courts of appeal which have dealt with issue:Ochoa v. State, 119 S.W.3d 825, 829 (Tex. App.--San Antonio 2003, no pet.); Fluellen v. State, 104 S.W.3d 152, 163 (Tex. App.--Texarkana 2003, no pet.); Torres v. State, 116 S.W.3d 208, 212 (Tex. App.--El Paso 2003, no pet.); Minor v. State, 91 S.W.3d 824, 828-29 (Tex. App.--Fort Worth 2002, pet. ref’d); Carriere v. State, 84 S.W.3d 753, 758-60 (Tex. App.--Houston [1st Dist.] 2002, pet. ref’d); O’Canas v. State, No. 05-02-01636-CR, 2003 Tex. App. LEXIS 9749 (Tex. App.--Dallas 2003, pet. dism’d)(not yet reported). But see Phillips v. State, 72 S.W.3d 719, 721 (Tex. App.--Waco 2002, no pet.), and Rodriguez v. State, 96 S.W.3d 398 (Tex. App.--Austin 2002, pet. ref’d), both of which held that under Paulson it was error to give the instruction but that such error was harmless.

9 Geesa v. State, 820 S.W.2d 154 (Tex. Crim. App. 1991).

10 The State is aware of the fact that special issue three is not even considered by the juror unless issues one and two have been answered affirmatively. However, the affirmative answers to special issues one and two do nothing more than act as a prerequisite to consideration of special issue three. It does not commit the juror to a particular answer to special issue three.

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Woods v. State - Appellee Brief

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