Ricks, Cedric Allen ( 2015 )


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  •                                                                                  AP-77,040
    COURT OF CRIMINAL APPEALS
    AUSTIN, TEXAS
    August 4, 2015                                                Transmitted 8/3/2015 4:58:09 PM
    Accepted 8/4/2015 7:49:24 AM
    ABEL ACOSTA
    CAUSE NO. AP - 77,040                                         CLERK
    IN THE
    COURT OF CRIMINAL APPEALS OF TEXAS
    CEDRIC ALLEN RICKS
    Appellant
    VS.
    THE STATE OF TEXAS
    Appellee
    APPELLANT’S BRIEF
    Appeal of Cause No. 1361004R
    Out of the 371st Judicial District Court
    of Tarrant County, Texas
    The Hon. Mollee Westfall, Presiding
    ORAL ARGUMENT IS NOT REQUESTED
    MARY B. THORNTON
    Attorney for Appellant
    3901 Race Street
    Fort Worth, Texas 76111
    Telephone No.: (817) 759-0400
    Telecopier No.: (817) 831-3002
    marybrabson01@gmail.com
    State Bar No. 19713700
    Adam L. Arrington
    Attorney at Law
    1020 Macon Street, Suite 7
    Fort Worth, Texas 76102
    Telephone No.: (817) 395-3674
    Telecopier No.: (682) 841-1399
    State Bar No. 24085685
    IDENTITY OF PARTIES AND COUNSEL
    The following is a complete list of all parties listed in the trial court’s final
    Judgment and their trial and appellate counsel pursuant to Rule 38.1 (a) of the
    Texas Rules of Appellate Procedure:
    1.    Cedric Allen Ricks
    TDCJ #00999593
    Allan B. Polunski Unit
    3872 FM 350 South
    Livingston, Texas 77351
    2.    The Hon. William H. “Bill” Ray
    Attorney at Law/Appellant’s Trial Counsel
    512 Main Street, Suite 308
    Fort Worth, Texas 76102
    3.    The Hon. Steve Gordon
    Attorney at Law/Appellant’s Trial Counsel
    2101 Moneda Street
    Fort Worth, Texas 76102
    4.    The Hon. Sharen Wilson
    District Attorney of Tarrant County, Texas
    Fourth Floor of the Tim Curry Criminal Justice Center
    401 West Belknap
    Fort Worth, Texas 76196
    5.    The Hon. Robert K. Gill
    Asst. Criminal District Attorney/State’s Trial Counsel
    Tarrant County District Attorney’s Office
    Fourth Floor of the Tim Curry Criminal Justice Center
    401 West Belknap
    i
    Fort Worth, Texas 76196
    6.   The Hon. Robert Huseman
    Asst. Criminal District Attorney/State’s Trial Counsel
    Tarrant County District Attorney’s Office
    Fourth Floor of the Tim Curry Criminal Justice Center
    401 West Belknap
    Fort Worth, Texas 76196
    7.   The Hon. Debra Windsor
    Chief of Post Conviction
    Tarrant County District Attorney’s Office
    Fourth Floor of the Tim Curry Criminal Justice Center
    401 West Belknap
    Fort Worth, Texas 76196
    ii
    TABLE OF CONTENTS
    PAGE
    IDENTITY OF PARTIES AND COUNSEL. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i
    TABLE OF CONTENTS.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
    INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xi
    STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xxv
    APPELLANT’S POINTS OF ERROR (ISSUES PRESENTED). . . . . . . . . . . . . . . . xxviii
    STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
    SUMMARY OF APPELLANT’S ARGUMENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
    POINT OF ERROR ONE (ARGUMENT).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
    THE TRIAL COURT ERRED IN DENYING
    APPELLANT’S MOTION TO SUPPRESS ALL
    EVIDENCE SEIZED BY LAW ENFORCEMENT
    OFFICIALS SUBSEQUENT TO HIS
    WARRANTLESS ARREST WHICH WAS IN
    VIOLATION OF THE FOURTH AND
    FOURTEENTH AMENDMENTS TO THE
    UNITED STATES CONSTITUTION. (CR. I-284-
    99; II-409; RR. VI-144-87, 231-41; XXXII-
    71; XLII-SPTX 1, 2, 7, 8, 9, 10, 11; XLV-DX
    1).
    POINT OF ERROR TWO (ARGUMENT). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
    THE TRIAL COURT ERRED IN DENYING
    APPELLANT’S MOTION TO SUPPRESS ALL
    iii
    EVIDENCE SEIZED BY LAW ENFORCEMENT
    OFFICIALS SUBSEQUENT TO HIS
    WARRANTLESS ARREST WHICH WAS IN
    VIOLATION OF ARTICLE 1, SECTION 9 OF
    THE TEXAS CONSTITUTION AND ARTICLES
    1.06, 18.02, AND 38.23 OF THE TEXAS
    CODE OF CRIMINAL PROCEDURE. (CR. I-
    284-99; II-409; RR. VI-144-87, 231-41;
    XXXII-71; XLII-SPTX 1, 2, 7, 8, 9, 10, 11;
    XLV-DX 1).
    POINT OF ERROR THREE (ARGUMENT).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
    THE TRIAL COURT ERRED IN DENYING
    APPELLANT’S MOTION TO SUPPRESS ALL
    EVIDENCE SEIZED BY LAW ENFORCEMENT
    OFFICIALS SUBSEQUENT TO THE
    WARRANTLESS SEARCH OF HIS
    APARTMENT WHICH WAS IN VIOLATION OF
    THE FOURTH AND FOURTEENTH
    AMENDMENTS TO THE UNITED STATES
    CONSTITUTION. (CR. I-284-99; II-409; RR.
    VI-74-117, 231-41; XXXII-71; XLII-SPTX 1).
    POINT OF ERROR FOUR (ARGUMENT).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
    THE TRIAL COURT ERRED IN DENYING
    APPELLANT’S MOTION TO SUPPRESS ALL
    EVIDENCE SEIZED BY LAW ENFORCEMENT
    OFFICIALS SUBSEQUENT TO THE
    WARRANTLESS SEARCH OF HIS
    APARTMENT WHICH WAS IN VIOLATION OF
    ARTICLE I, SECTION 9 OF THE TEXAS
    CONSTITUTION AND ARTICLES 1.06,
    18.02, AND 38.23 OF THE TEXAS CODE OF
    iv
    CRIMINAL PROCEDURE. (CR. I-284-99; II-
    409; RR. VI-74-117, 231-41; XXXII-71;
    XLII-SPTX 1).
    POINT OF ERROR FIVE (ARGUMENT).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
    THE TRIAL COURT ERRED IN DENYING
    APPELLANT’S MOTION TO SUPPRESS ALL
    EVIDENCE SEIZED BY LAW ENFORCEMENT
    OFFICIALS BECAUSE APPELLANT WAS
    DENIED HIS RIGHT TO COUNSEL IN
    VIOLATION OF THE FIFTH, SIXTH, AND
    FOURTEENTH AMENDMENTS TO THE
    UNITED STATES CONSTITUTION. (CR. I-284-
    99; RR. VI-120-43, 188-228, XLII-SPTX3,
    SPTX4, SPTX5, & SPTX6).
    POINT OF ERROR SIX (ARGUMENT).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
    THE TRIAL COURT ERRED IN DENYING
    APPELLANT’S MOTION TO SUPPRESS ALL
    EVIDENCE SEIZED BY LAW ENFORCEMENT
    OFFICIALS BECAUSE APPELLANT WAS
    DENIED HIS RIGHT TO COUNSEL IN
    VIOLATION OF ARTICLE I, SECTION 10 OF
    THE TEXAS CONSTITUTION AND ARTICLES
    1.05, 15.17, AND 38.23 OF THE TEXAS
    CODE OF CRIMINAL PROCEDURE. (CR. I-
    284-99; RR. VI-120-43, 188-228, XLII-
    SPTX3, SPTX4, SPTX5, & SPTX6).
    POINT OF ERROR SEVEN.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
    THE TRIAL COURT ERRED IN DENYING
    APPELLANT’S MOTION TO SUPPRESS ALL
    v
    EVIDENCE SEIZED BY LAW ENFORCEMENT
    OFFICIALS BECAUSE APPELLANT WAS
    DENIED HIS RIGHT TO COUNSEL IN
    VIOLATION OF OKLAHOMA STATUTES 22-
    251 AND 22-252. (CR. I-284-99; RR. VI-
    120-43, 188-228, XLII-SPTX3, SPTX4,
    SPTX5, & SPTX6).
    POINT OF ERROR EIGHT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
    THE TRIAL COURT COMMITTED
    REVERSIBLE ERROR IN ALLOWING THE
    STATE TO INTRODUCE SX225 AN AUTOPSY
    PHOTOGRAPH OF JAMES GONZALEZ’S
    BRAIN BECAUSE THE PREJUDICIAL EFFECT
    GREATLY OUTWEIGHED ANY PROBATIVE
    VALUE. (RR. XXXII-113-16; XLIV-SX#225).
    POINT OF ERROR NINE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
    THE TRIAL COURT COMMITTED
    REVERSIBLE ERROR IN ALLOWING THE
    STATE TO INTRODUCE SX226 AN AUTOPSY
    PHOTOGRAPH OF JAMES GONZALEZ’S
    BRAIN BECAUSE THE PREJUDICIAL EFFECT
    GREATLY OUTWEIGHED ANY PROBATIVE
    VALUE. (RR. XXXII-113-16; XLIV-SX#226).
    POINT OF ERROR TEN. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
    THE TRIAL COURT ERRED IN OVERRULING
    APPELLANT’S MOTION TO DECLARE THE
    “10-12” RULE UNCONSTITUTIONAL ON THE
    GROUNDS THAT IT CREATES AN
    vi
    IMPERMISSIBLE RISK OF ARBITRARY
    IMPOSITION OF THE DEATH PENALTY. (CR.
    I-187-217; RR. V-79-80).
    POINT OF ERROR ELEVEN.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
    ARTICLE 37.071 OF THE TEXAS CODE OF
    CRIMINAL          PROCEDURE         IS
    UNCONSTITUTIONAL BECAUSE IT FAILS TO
    PLACE THE BURDEN OF PROOF OF THE
    STATE REGARDING AGGRAVATING
    EVIDENCE. (CR. I-142-46; RR. V-68).
    POINT OF ERROR TWELVE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
    THE TRIAL COURT ERRED IN OVERRULING
    APPELLANT’S MOTION TO PRECLUDE THE
    IMPOSITION OF THE DEATH PENALTY ON
    GROUNDS THAT THE INDICTMENT FAILED
    TO CONTAIN ANY ALLEGATIONS
    REGARDING THE PUNISHMENT SPECIAL
    ISSUE. (CR. I-142-46; RR. V-68).
    POINT OF ERROR THIRTEEN.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
    THE TRIAL COURT ERRED IN OVERRULING
    APPELLANT’S OBJECTION TO THE
    APPLICATION OF TEXAS’ DEATH PENALTY
    SCHEME BECAUSE IT HAS BEEN
    ARBITRARILY IMPOSED IN VIOLATION OF
    T H E E IG H T H AN D F O U R TEE N T H
    AMENDMENTS TO THE UNITED STATES
    CONSTITUTION. (Cr. I-147-50; RR. V-68-
    69).
    vii
    POINT OF ERROR FOURTEEN. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
    THE TEXAS DEATH PENALTY STATUTE
    VIOLATES THE JURY TRIAL GUARANTEE OF
    THE FOURTEENTH AMENDMENT, AS
    INTERPRETED IN APPRENDI V NEW
    JERSEY, RING V ARIZONA, BLAKELY V
    WASHINGTON, UNITED STATES V BOOKER,
    AND CUNNINGHAM V CALIFORNIA BY
    FAILING TO PLACE UPON THE STATE THE
    BURDEN OF PROVING BEYOND A
    REASONABLE DOUBT A NEGATIVE ANSWER
    TO THE MITIGATION SPECIAL ISSUE. (CR. I-
    142-46; RR. V-68).
    POINT OF ERROR FIFTEEN. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95
    APPELLANT’S RIGHTS UNDER THE
    CONFRONTATION CLAUSE OF THE SIXTH
    AND FOURTEENTH AMENDMENTS TO THE
    UNITED STATES CONSTITUTION WERE
    VIOLATED WHEN THE MOTHER OF
    DECEDENT, ROSIE GONZALEZ, TESTIFIED
    TO INFORMATION PERTAINING TO AN
    EXTRANEOUS OFFENSE DURING THE
    PUNISHMENT STAGE OF HIS TRIAL. (RR.
    XXXIV-25-28; XL-36-37, 66).
    POINT OF ERROR SIXTEEN. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95
    APPELLANT’S RIGHTS UNDER THE
    CONFRONTATION CLAUSE OF ARTICLE 1,
    §10 OF THE TEXAS CONSTITUTION WERE
    VIOLATED WHEN THE MOTHER OF
    DECEDENT ROSIE GONZALEZ TESTIFIED TO
    viii
    INFORMATION PERTAINING TO AN
    EXTRANEOUS OFFENSE DURING THE
    PUNISHMENT STAGE OF HIS TRIAL. (RR.
    XXXIV-25-28; XL-36-37, 66).
    POINT OF ERROR SEVENTEEN. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95
    REVERSIBLE ERROR OCCURRED WHEN
    THE MOTHER OF DECEDENT ROSIE
    GONZALEZ TESTIFIED TO INFORMATION
    PERTAINING TO AN EXTRANEOUS OFFENSE
    DURING THE PUNISHMENT STAGE OF HIS
    TRIAL IN VIOLATION OF THE HEARSAY
    RULE. (RR. XXXIV-25-28).
    POINT OF ERROR EIGHTEEN.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107
    THE TRIAL COURT ABUSED ITS DISCRETION
    AND VIOLATED APPELLANT’S RIGHTS
    UNDER THE CONFRONTATION CLAUSE OF
    THE UNITED STATES CONSTITUTION BY
    PERMITTING THE SEXUAL ASSAULT NURSE
    EXAMINER TO TESTIFY TO STATEMENTS
    MADE BY ROSIE GONZALEZ REGARDING
    AN EXTRANEOUS OFFENSE ALLEGEDLY
    COMMITTED BY APPELLANT. (RR. XXXV-11-
    20).
    POINT OF ERROR NINETEEN. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107
    THE TRIAL COURT ABUSED ITS DISCRETION
    AND VIOLATED APPELLANT’S RIGHTS
    UNDER ARTICLE 1, §10 OF THE TEXAS
    CONSTITUTION BY PERMITTING THE
    SEXUAL ASSAULT NURSE EXAMINER TO
    ix
    TESTIFY TO STATEMENTS MADE BY ROSIE
    GONZALEZ REGARDING AN EXTRANEOUS
    OFFENSE ALLEGEDLY COMMITTED BY
    APPELLANT. (RR. XXXV-11-20).
    POINT OF ERROR TWENTY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117
    IF NONE OF APPELLANT’S POINTS OF
    ERROR ARE REVERSIBLE PER SE, THEN
    ALL OF THE ERRORS PRESENT
    C U M U LA T IVE ERROR R E Q U IR I N G
    REVERSAL WHEN CONSIDERED TOGETHER.
    (Record in its entirety).
    CONCLUSION AND PRAYER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121
    STATEMENT OF COMPLIANCE WITH RULE 9.4 (i)(2)(B). . . . . . . . . . . . . . . . . 122
    CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122
    x
    INDEX OF AUTHORITIES
    CASES                                                                                                     PAGE(S)
    Adams v Williams, 
    407 U.S. 143
    (1972). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
    Amburgey v State, 
    696 N.E.2d 44
        (Ind. 1998). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
    Anderson v State, 
    932 S.W.3d 502
         (Tex. Crim. App. 1996). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
    Apprendi v New Jersey, 
    530 U.S. 466
    (2000). . . . . . . . . . . . . . . 82,88,89,90,93
    Avery v State, 
    359 S.W.3d 230
          (Tex. Crim. App. 2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
    Baze v Rees, 
    553 U.S. 35
    (2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
    Blakely v Washington, 
    542 U.S. 296
    (2004). . . . . . . . . . . . . 82,90,91,92,93,94
    Bott v Bott, 
    962 S.W.2d 626
          (Tex. App. - - Houston [14th
    Dist.] 1997, no pet.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 
    118 Boyce v
    State, No. 04-04-00267-CR
    (Tex. App. - - San Antonio,
    July 13, 2005) 2005 Tex.
    App. LEXIS 5395 (mem. op.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
    Brown v State, 
    974 S.W.2d 289
         (Tex. App. - - San Antonio
    1998, pet. ref’d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118-19
    Brown v State, 
    266 P. 476
    , 
    39 Okla. Crim. 406
    xi
    (Okla. Crim. App. 1928). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
    Burdine v State, 
    719 S.W.2d 309
          (Tex. Crim. App. 1986). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
    Byers v State, 
    709 N.E.2d 1024
          (Ind. 1999). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
    California v Brown, 
    479 U.S. 538
    (1987). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
    California v Cunningham, 
    127 S. Ct. 856
    (2007). . . . . . . . . . . . . . . . . . . . . 92,93
    Chamberlain v State, 
    998 S.W.2d 230
        (Tex. Crim. App. 1999) cert. denied,
    
    528 U.S. 1082
    (2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117-18
    Chambers v Mississippi, 
    410 U.S. 284
    (1973). . . . . . . . . . . . . . . . . . . . . . . . 100
    Cobarrubio v State, 
    675 S.W.2d 749
         (Tex. Crim. App. 1983) overruled
    in part, Lawrence v State, 
    700 S.W. 2d
    208 (Tex. Crim. App. 1985). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
    Coolidge v New Hampshire, 
    403 U.S. 443
    (1971). . . . . . . . . . . . . . . . . . . . . . . 36
    Corbett v State, 
    764 N.E.2d 622
         (Ind. 2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
    Crawford v Washington, 
    541 U.S. 36
    (2004).. . . . . . . . . . . . . . . . . . . . . . . . . . . 99
    Davis v State, 
    268 S.W.3d 683
          (Tex. App. - - Fort Worth 2008,
    pet. ref’d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105
    Davis v United States, 
    512 U.S. 452
    (1994). . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
    xii
    De La Paz v State, 
    279 S.W.3d 336
         (Tex. Crim. App. 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99
    Derden v McNeel, 
    978 F.2d 1453
         (5th Cir. 1992) (en banc)
    cert. denied, 
    508 U.S. 960
    (1993). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119
    Duhart v State, 
    890 S.W.2d 187
         (Tex. App. - - Corpus Christi
    1994, no pet.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
    Duncan v Louisiana, 
    391 U.S. 145
    (1968).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
    Eddings v Oklahoma, 
    455 U.S. 104
    (1982). . . . . . . . . . . . . . . . . . . . . . . 68,69,75
    Edwards v Arizona, 
    451 U.S. 477
    (1981). . . . . . . . . . . . . . . . . . . . . . . . . . . . 51,52
    Elliott v State, 
    858 S.W.2d 478
           (Tex. Crim. App. 1993). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
    Ex parte Tucker, 
    973 S.W.2d 950
          (Tex. Crim. App. 1998). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
    Ex parte Welborn, 
    785 S.W.2d 391
          (Tex. Crim. App. 1990). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118
    Fetterly v Paskett, 
    997 F.2d 1295
          (9th Cir. 1993). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
    Francis v Franklin, 
    471 U.S. 316
    (1985). . . . . . . . . . . . . . . . . . . . . . . . . . . . 70,71
    Francis v State, 
    922 S.W.2d 176
          (Tex. Crim. App. 1996). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
    Fuller v State, 
    829 S.W.2d 191
    xiii
    (Tex. Crim. App. 1992) cert.
    denied, 
    508 U.S. 941
    (1993).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
    Furman v Georgia, 
    408 U.S. 238
    (1972). . . . . . . . . . . . . . . . . . . . . . . . . . . . 86-87
    Gamboa v State, 
    296 S.W.3d 574
        (Tex. Crim. App. 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118
    Garcia v State, 
    201 S.W.2d 574
          (Tex. Crim. App. 1948). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100
    Gigliobianco v State, 
    210 S.W.3d 637
          (Tex. Crim. App. 2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
    Graham v Florida, 
    560 U.S. 48
    (2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
    Green v State, 
    899 S.W.2d 245
         (Tex. App. - - San Antonio
    1995, no pet.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119
    Gregg v Georgia, 
    428 U.S. 153
    (1976). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
    Gutierrez v State, 
    221 S.W.3d 680
          (Tex. Crim. App. 2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33-34
    Heitman v State, 
    815 S.W.2d 681
         (Tex. Crim. App. 1991). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
    Hernandez v State, 
    726 S.W.2d 53
         (Tex. Crim. App. 1986). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
    Horton v California, 
    496 U.S. 128
    (1990). . . . . . . . . . . . . . . . . . . . . . . . . . . 36,37
    In re Winship, 
    397 U.S. 358
    (1970). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88-89
    xiv
    Jackson v Virginia, 
    443 U.S. 307
    (1979). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
    Jimenez v State, 
    32 S.W.2d 233
         (Tex. Crim. App. 2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
    Johnson v State, 
    364 S.W.3d 292
         (Tex. Crim. Appl. 2012) cert.
    denied, 
    133 S. Ct. 536
    (2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
    Johnson v State, 
    912 S.W.2d 227
         (Tex. Crim. App. 1995). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 
    23 Jones v
    State, 
    119 S.W.3d 766
          (Tex. Crim. App. 2003) cert.
    denied, 
    542 U.S. 905
    (2004).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 
    90 Jones v
    State, 
    833 S.W. 2s
    118
    (Tex. Crim. App. 1992) cert.
    denied, 
    507 U.S. 921
    (1993).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
    Kansas v Marsh, 
    548 U.S. 163
    (2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
    Katz v United States, 
    389 U.S. 347
    (1967). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
    Kemper v State, 
    138 S.W. 1025
        overruled in part by Robertson v
    State, 
    142 S.W. 533
    (Tex. Crim.
    App. 1911). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100
    Kennedy v Louisiana, 
    554 U.S. 407
    (2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
    King v Federal Underwriters Exchange,
    
    144 Tex. 531
    , 
    191 S.W.2d 1112
          (1946). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117
    xv
    King v State, 
    953 S.W.2d 266
          (Tex. Crim. App. 1997). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56,65
    Klein v Sporting Goods, Inc., 
    772 S.W.2d 173
          (Tex. App. - - Houston [14th Dist.]
    1989, writ denied).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118
    Kolb v State, 
    532 S.W.2d 87
          (Tex. Crim. App. 1976). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
    Kotteakos v United States, 
    328 U.S. 750
    (1946). . . . . . . . . . . . . . . . . . . . . 65-66
    Langham v State, 
    305 S.W.3d 568
         (Tex. Crim. App. 2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99
    Lawrence v State, 
    700 S.W. 2d
    208
    (Tex. Crim. App. 1985). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
    Lockett v Ohio, 
    438 U.S. 586
    (1978). . . . . . . . . . . . . . . . . . . . . . . . . . . . 69-70,75
    Long v State, 
    823 S.W.2d 259
          (Tex. Crim. App. 1991)
    cert. denied, 
    505 U.S. 1224
          (1992). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
    McFarlane v State, 
    254 S.W.2d 136
         (Tex. Crim. App. 1953). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
    McNeil v Wisconsin, 
    501 U.S. 171
    (1991). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
    Maldonado v State, 
    528 S.W.2d 234
         (Tex. Crim. App. 1975). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 
    34 Md. v
    Buie, 
    494 U.S. 325
    (1990). . . . . . . . . . . . . . . . . . . . . . . . . . . 35,36,41
    xvi
    Massiah v United States, 
    377 U.S. 201
    (1964). . . . . . . . . . . . . . . . . . . . . . . . . . 49
    Mayberry v State, 
    830 S.W.2d 176
        (Tex. Crim. App. 1992). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
    Miles v State, 
    357 S.W.3d 629
          (Tex. Crim. App. 2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
    Miller v Alabama, 567 U.S.                   , 
    132 S. Ct. 2455
           (2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
    Miranda v Arizona, 
    384 U.S. 436
    (1966). . . . . . . . . . . . . . . . . . . . . . . . . . . . 50,57
    Montejo v Louisiana, 
    556 U.S. 778
    (2009). . . . . . . . . . . . . . . . . . . . . . . 49-50,51
    Montgomery v State, 
    810 S.W.2d 372
         (Tex. Crim. App. 1990). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62,63,65
    Morris v State, 
    940 S.W.2d 610
          (Tex. Crim. App. 1996). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
    Nash v State, 
    477 S.W.2d 557
         (Tex. Crim. App.) cert. denied,
    
    409 U.S. 887
    (1972).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50,52
    Narvaiz v State, 
    840 S.W.2d 415
         (Tex. Crim. App. 1992) cert.
    denied, 
    507 U.S. 975
    (1993).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
    O’Neill v State, 
    681 S.W.2d 663
          (Tex. App. - - Houston [1st Dist.]
    1984, pet. ref’d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
    Payton v New York, 
    445 U.S. 573
    (1980). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
    xvii
    Pecina v State, 
    361 S.W.3d 68
         (Tex. Crim. App. 2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50,55
    Penry v Lynaugh, 
    492 U.S. 302
    (1989). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
    Perry v Jones, 
    506 F.2d 778
          (5th Cir. 1975). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
    Perry v State, 
    158 S.W.3d 438
          (Tex. Crim. App. 2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
    Pitman v Lightfoot, 
    937 S.W.2d 496
         (Tex. App. - - San Antonio
    1996, writ denied).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118
    Pointer v Texas, 
    380 U.S. 400
    (1965). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99
    Polk v State, 
    224 P. 194
    , 
    26 Okla. Crim. 283
          (Okla. Crim. App. 1924). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
    Powell v Alabama, 
    287 U.S. 45
    (1932). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
    Ramirez v State, 
    815 S.W.2d 636
         (Tex. Crim. App. 1991). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
    Rance v State, 
    815 S.W.2d 633
         (Tex. Crim. App. 1991). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
    Rayford v State, 
    125 S.W.3d 521
         (Tex. Crim. App. 2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
    Reasor v State, 
    12 S.W.3d 813
         (Tex. Crim. App. 2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35-36
    Reese v State, 
    33 S.W.3d 238
    xviii
    (Tex. Crim. App. 2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
    Renn v State, 
    495 S.W.2d 922
         (Tex. Crim. App. 1973). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117
    Ring v Arizona, 
    536 U.S. 584
    (2002). . . . . . . . . . . . . . . . . . . . . . 81,89,90,93,94
    Ritchie v State, 
    632 P.2d 1244
          (Okla. Crim. App. 1981). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
    Rhodes v State, 
    945 S.W.2d 115
         (Tex. Crim. App. cert. denied,
    
    552 U.S. 894
    (1997).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
    Robinson v State, 
    693 N.E.2d 548
         (Ind. 1998). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
    Runningwolf v State, 
    360 S.W.3d 490
         (Tex. Crim. App. 2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
    Russell v State, 
    717 S.W.2d 7
         (Tex. Crim. App. 1986). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
    Scales v State, 
    380 S.W.3d 780
         (Tex. Crim. App. 2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
    Scales v State, No. 01-08-0932-CR
    (Tex. App. - - Houston [1st Dist.]
    April 14, 2011) (not designated
    for publication). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72,73,74,75
    Scales v State, No. 01-08-0932-CR
    (Tex. App. - - Houston [1st Dist.]
    December 20, 2010) (not
    designated for publication). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
    xix
    Simmons v South Carolina, 
    512 U.S. 154
    (1994).. . . . . . . . . . . . . . . . . 70,71,75
    Smerke v Office Equipment Co., 
    138 Tex. 236
         
    158 S.W.2d 302
    (1941). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117
    Smith v State, 
    894 S.W.2d 876
         (Tex. App. - - Amarillo 1995,
    pet. ref’d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119
    Spaziano v Florida, 
    468 U.S. 447
    (1984). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
    Spencer v State, 
    703 N.E.2d 1053
         (Ind. 1999). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
    Stahl v State, 
    749 S.W.2d 826
          (Tex. Crim. App. 1988). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118,119
    State v Dobbs, 
    323 S.W.3d 184
          (Tex. Crim. App. 2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
    State v Guzman, 
    959 S.W.2d 632
          (Tex. Crim. App. 1998). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
    State v Jennings, 
    958 S.W.2d 930
          (Tex. App. - - Amarillo 1997,
    no pet.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24,25
    Strickland v Washington, 
    466 U.S. 668
    (1984). . . . . . . . . . . . . . . . . . . . . . . . . 52
    Sullivan v State, 
    564 S.W.2d 698
           (Tex. Crim. App. 1977). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 
    34 Taylor v
    State, 
    268 S.W.3d 571
          (Tex. Crim. App. 2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105
    xx
    Terry v State, 
    491 S.W.2d 161
          (Tex. Crim. App. 1973). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
    Texas v Cobb, 
    532 U.S. 162
    (2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
    Threadgill v State, 
    146 S.W.3d 654
         (Tex. Crim. App. 2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
    Tipton v State, 
    235 P. 259
    , 
    30 Okla. Crim. 56
          (Okla. Crim. App. 1925). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
    United States v Booker, 
    543 U.S. 220
    ,
    
    125 S. Ct. 738
    (2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88,89,92
    United States v Henry, 
    447 U.S. 264
    (1980). . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
    United States v Munoz, 
    150 F.3d 401
          (5th Cir. 1979) cert. denied, 
    25 U.S. 1112
    (1999). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117
    United States v Wade, 
    388 U.S. 218
    (1967). . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
    Walter v United States, 
    447 U.S. 649
    (1980). . . . . . . . . . . . . . . . . . . . . . . . . . . 37
    West v State, 
    121 S.W.3d 95
         (Tex. App. - - Fort Worth 2003,
    pet. ref’d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105
    White v State, 
    729 S.W.2d 737
         (Tex. Crim. App. 1987) disavowed
    in part, State v Dobbs, 
    323 S.W.3d 184
    (Tex. Crim. App. 2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37,38,39
    Williams v State, 
    958 S.W.2d 186
          (Tex. Crim. App. 1997). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
    xxi
    Willover v State, 
    70 S.W.3d 841
          (Tex. Crim. App. 2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105
    Wong Sun v United States, 
    371 U.S. 471
    (1963). . . . . . . . . . . . . . . . . . . . . 40,55
    Woods v State, 
    152 S.W.3d 121
        (Tex. Crim. App. 2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
    Woods v State, 
    956 S.W.2d 33
        (Tex. Crim. App. 1997). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
    Wyatt v State, 
    23 S.W.3d 18
         (Tex. Crim. App. 2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
    Wyatt v Wolf, 
    324 P.2d 548
         (Okla. Crim. App. 1958). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56,57
    Zuliani v State, 
    97 S.W.3d 589
          (Tex. Crim. App. 2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104
    xxii
    RULES, STATUTES, CONSTITUTIONS, LAW REVIEW ARTICLES, AND
    ATTORNEY GENERAL OPINIONS
    Ind. Rule Evi. 403.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
    Peggy M. Tobolowsky, “What Hath Penry Wrought?:
    Mitigating Circumstances and the Texas Death
    Penalty,” 19 AMER. J. CRIM. L. 345 (1992). . . . . . . . . . . . . . . . . . . . . . . 84
    P.M. McClung, “Jury Charges for Texas Criminal
    Practice (rev. ed. 1981). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83-84
    Tex. Const. art. I, §9.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24,25,26,40
    Tex. Const. art. I, §10. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52,79,100,116
    Tex. Crim. Proc. Code Ann. art. 1.03
    (Vernon 1965). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
    Tex. Crim. Proc. Code Ann. art. 1.06
    (Vernon 1965). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
    Tex. Crim. Proc. Code Ann. art. 15.17
    (Vernon 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53,54,55,56
    Tex. Crim. Proc. Code Ann. art. 18.02
    (Vernon 2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
    Tex. Crim. Proc. Code Ann. art. 36.29
    (Vernon 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
    Tex. Crim. Proc. Code Ann. art. 37.071
    (Vernon 2009). . . . . . . . . . . . . . . . . . . . . . . xxvi,68,76,78,80,83,84,90,93
    Tex. Crim. Proc. Code Ann. art. 38.23
    xxiii
    (Vernon Supp. 2004).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25,39
    Tex. Crim. Proc. Code Ann. art. 44.29 (a)
    (Vernon Supp. 2012).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41,120
    Tex. Op. Att’y Gen. GA-0993 (2013). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
    Tex. Penal Code Ann. sec. 19.03 (a) (7) (A)
    (Vernon 2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xxv
    Tex. R. App. Proc. 33.1 (a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
    Tex. R. App. Proc. 43.2 (d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120
    Tex. R. App. Proc. 44.2 (a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41,80,101
    Tex. R. App. Proc. 44.2 (b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56,65,105
    Tex. R. Evi. 103 (a) (1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
    Tex. R. Evi. 403.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61,62
    Tex. R. Evi. 801.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104
    Tex. R. Evi. 802.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104
    U.S. Const., amend. IV. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24,25,26,33,34,40,41
    U.S. Const., amend. V. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50,51
    U.S. Const., amend. VI. . . . . . . . . . . . . . 49,50,51,55,81,89,93,99,100,116,119
    U.S. Const., amend. VIII. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83,87
    U.S. Const., amend. XIV.. . . . . . . . . . . . . . . . . . . 24,26,40,80,83,89,93,100,119
    xxiv
    STATEMENT OF THE CASE
    The following is a concise statement of the nature of the case pursuant to
    Rule 38.1 (d) of the Texas Rules of Appellate Procedure:
    Appellant, CEDRIC ALLEN RICKS, was charged by indictment, returned on
    February 24, 2014,1 with the offense of capital murder (two murders during the
    same criminal transaction). Tex. Penal Code Ann. sec. 19.03 (a) (7) (A) (Vernon
    2011). (CR. I-11). On May 5, 2014, Appellant pleaded not guilty to the State’s
    indictment before a jury. (RR. XXXI-16-17). Two days later, on May 7, 2014,
    after hearing evidence from both the State and the defense, the jury found
    Appellant guilty of capital murder as charged in the State’s indictment. (CR. II-
    526-29; RR. XXXIII-71-73). After hearing additional testimony from witnesses
    called by both sides, the jury answered Special Issue Number One (that there is
    a reasonable probability that Appellant would commit criminal acts of violence
    that would constitute a continuing threat to society) “yes” and Special Issue
    Number Two (whether there is a sufficient mitigating circumstance or
    circumstances to warrant a sentence of life imprisonment) “no.” (CR. II-527; RR.
    1
    This was a reindictment of cause number 1325203D which was
    returned on July 23, 2013. (CR. I-20).
    xxv
    XL-134-40). Commensurate with the jury’s answers to the two special issues,
    on May 16, 20914, the trial court sentenced Appellant to death by lethal
    injection. Tex. Crim. Proc. Code Ann. art. 37.071 §2 (g) (Vernon 2009). (CR. II-
    526-29; RR. XL-136-37). On that same day, Appellant filed a notice of appeal;
    however, his conviction of capital murder and sentence of death were
    automatically appealed to the Texas Court of Criminal Appeals in Austin, Texas.
    (CR. II-531).
    xxvi
    CAUSE NO. AP - 77,040
    CEDRIC ALLEN RICKS                      *        IN THE COURT OF
    *
    *
    VS.                                     *        CRIMINAL APPEALS
    *
    THE STATE OF TEXAS                      *        IN AUSTIN, TEXAS
    APPELLANT’S BRIEF
    Appeal of Cause No. 1361004R
    Out of the 371st Judicial District Court
    of Tarrant County, Texas
    The Hon. Mollee Westfall, Presiding
    TO THE HONORABLE JUDGES OF SAID COURT:
    COMES NOW, CEDRIC ALLEN RICKS, hereinafter referred to as Appellant
    by and through his attorney, MARY B. THORNTON, and respectfully submits his
    appellate brief specifying twenty points of error pursuant to Rules 71 and 38 of
    the Texas Rules of Appellate Procedure.
    xxvii
    APPELLANT’S POINTS OF ERROR
    (ISSUES PRESENTED)
    POINT OF ERROR ONE
    THE TRIAL COURT ERRED IN DENYING
    APPELLANT’S MOTION TO SUPPRESS ALL
    EVIDENCE SEIZED BY LAW ENFORCEMENT
    OFFICIALS SUBSEQUENT TO HIS
    WARRANTLESS ARREST WHICH WAS IN
    VIOLATION OF THE FOURTH AND
    FOURTEENTH AMENDMENTS TO THE
    UNITED STATES CONSTITUTION. (CR. I-284-
    99; II-409; RR. VI-144-87, 231-41; XXXII-
    71; XLII-SPTX 1, 2, 7, 8, 9, 10, 11; XLV-DX
    1).
    POINT OF ERROR TWO
    THE TRIAL COURT ERRED IN DENYING
    APPELLANT’S MOTION TO SUPPRESS ALL
    EVIDENCE SEIZED BY LAW ENFORCEMENT
    OFFICIALS SUBSEQUENT TO HIS
    WARRANTLESS ARREST WHICH WAS IN
    VIOLATION OF ARTICLE 1, SECTION 9 OF
    THE TEXAS CONSTITUTION AND ARTICLES
    1.06, 18.02, AND 38.23 OF THE TEXAS
    CODE OF CRIMINAL PROCEDURE. (CR. I-
    284-99; II-409; RR. VI-144-87, 231-41;
    XXXII-71; XLII-SPTX 1, 2, 7, 8, 9, 10, 11;
    XLV-DX #1).
    POINT OF ERROR THREE
    xxviii
    THE TRIAL COURT ERRED IN DENYING
    APPELLANT’S MOTION TO SUPPRESS ALL
    EVIDENCE SEIZED BY LAW ENFORCEMENT
    OFFICIALS SUBSEQUENT TO THE
    WA RRANTLESS SEARCH OF HIS
    APARTMENT WHICH WAS IN VIOLATION OF
    THE FOURTH AND FOURTEENTH
    AMENDMENTS TO THE UNITED STATES
    CONSTITUTION. (CR. I-284-99; II-409; RR.
    VI-74-117, 231-41; XXXII-71; XLII-SPTX 1).
    POINT OF ERROR FOUR
    THE TRIAL COURT ERRED IN DENYING
    APPELLANT’S MOTION TO SUPPRESS ALL
    EVIDENCE SEIZED BY LAW ENFORCEMENT
    OFFICIALS SUBSEQUENT TO THE
    WARRANTLESS SEARCH OF HIS
    APARTMENT WHICH WAS IN VIOLATION OF
    ARTICLE I, SECTION 9 OF THE TEXAS
    CONSTITUTION AND ARTICLES 1.06,
    18.02, AND 38.23 OF THE TEXAS CODE OF
    CRIMINAL PROCEDURE. (CR. I-284-99; II-
    409; RR. VI-74-117, 231-41; XXXII-71;
    XLII-SPTX 1).
    POINT OF ERROR FIVE
    THE TRIAL COURT ERRED IN DENYING
    APPELLANT’S MOTION TO SUPPRESS ALL
    EVIDENCE SEIZED BY LAW ENFORCEMENT
    OFFICIALS BECAUSE APPELLANT WAS
    DENIED HIS RIGHT TO COUNSEL IN
    VIOLATION OF THE FIFTH, SIXTH, AND
    FOURTEENTH AMENDMENTS TO THE
    xxix
    UNITED STATES CONSTITUTION. (CR. I-284-
    99; RR. VI-120-43, 188-228, XLII-SPTX3,
    SPTX4, SPTX5, & SPTX6).
    POINT OF ERROR SIX
    THE TRIAL COURT ERRED IN DENYING
    APPELLANT’S MOTION TO SUPPRESS ALL
    EVIDENCE SEIZED BY LAW ENFORCEMENT
    OFFICIALS BECAUSE APPELLANT WAS
    DENIED HIS RIGHT TO COUNSEL IN
    VIOLATION OF ARTICLE I, SECTION 10 OF
    THE TEXAS CONSTITUTION AND ARTICLES
    1.05, 15.17, AND 38.23 OF THE TEXAS
    CODE OF CRIMINAL PROCEDURE. (CR. I-
    284-99; RR. VI-120-43, 188-228, XLII-
    SPTX3, SPTX4, SPTX5, & SPTX6).
    POINT OF ERROR SEVEN
    THE TRIAL COURT ERRED IN DENYING
    APPELLANT’S MOTION TO SUPPRESS ALL
    EVIDENCE SEIZED BY LAW ENFORCEMENT
    OFFICIALS BECAUSE APPELLANT WAS
    DENIED HIS RIGHT TO COUNSEL IN
    VIOLATION OF OKLAHOMA STATUTES 22-
    251 AND 22-252. (CR. I-284-99; RR. VI-
    120-43, 188-228, XLII-SPTX3, SPTX4,
    SPTX5, & SPTX6).
    POINT OF ERROR EIGHT
    THE TRIAL COURT COMMITTED
    REVERSIBLE ERROR IN ALLOWING THE
    STATE TO INTRODUCE SX225 AN AUTOPSY
    xxx
    PHOTOGRAPH OF JAMES GONZALEZ’S
    BRAIN BECAUSE THE PREJUDICIAL EFFECT
    GREATLY OUTWEIGHED ANY PROBATIVE
    VALUE. (RR. XXXII-113-16; XLIV-SX#225).
    POINT OF ERROR NINE
    THE TRIAL COURT COMMITTED
    REVERSIBLE ERROR IN ALLOWING THE
    STATE TO INTRODUCE SX226 AN AUTOPSY
    PHOTOGRAPH OF JAMES GONZALEZ’S
    BRAIN BECAUSE THE PREJUDICIAL EFFECT
    GREATLY OUTWEIGHED ANY PROBATIVE
    VALUE. (RR. XXXII-113-16; XLIV-SX#226).
    POINT OF ERROR TEN
    THE TRIAL COURT ERRED IN OVERRULING
    APPELLANT’S MOTION TO DECLARE THE
    “10-12” RULE UNCONSTITUTIONAL ON THE
    GROUNDS THAT IT CREATES AN
    IMPERMISSIBLE RISK OF ARBITRARY
    IMPOSITION OF THE DEATH PENALTY. (CR.
    I-187-217; RR. V-79-80).
    POINT OF ERROR ELEVEN
    ARTICLE 37.071 OF THE TEXAS CODE OF
    CRIMINAL          PROCEDURE         IS
    UNCONSTITUTIONAL BECAUSE IT FAILS TO
    PLACE THE BURDEN OF PROOF ON THE
    STATE REGARDING AGGRAVATING
    EVIDENCE. (CR. I-142-46; RR. V-68).
    xxxi
    POINT OF ERROR TWELVE
    THE TRIAL COURT ERRED IN OVERRULING
    APPELLANT’S MOTION TO PRECLUDE THE
    IMPOSITION OF THE DEATH PENALTY ON
    GROUNDS THAT THE INDICTMENT FAILED
    T O CONTAIN ANY ALLEGATIONS
    REGARDING THE PUNISHMENT SPECIAL
    ISSUE. (CR. I-142-46; RR. V-68).
    POINT OF ERROR THIRTEEN
    THE TRIAL COURT ERRED IN OVERRULING
    APPELLANT’S OBJECTION TO THE
    APPLICATION OF TEXAS’ DEATH PENALTY
    SCHEME BECAUSE IT HAS BEEN
    ARBITRARILY IMPOSED IN VIOLATION OF
    T H E E IG H TH A N D F O U R T E E N T H
    AMENDMENTS TO THE UNITED STATES
    CONSTITUTION. (CR. I-147-50; RR. V-68-
    69).
    POINT OF ERROR FOURTEEN
    THE TEXAS DEATH PENALTY STATUTE
    VIOLATES THE JURY TRIAL GUARANTEE OF
    THE FOURTEENTH AMENDMENT, AS
    INTERPRETED IN APPRENDI V NEW
    JERSEY, RING V ARIZONA, BLAKELY V
    WASHINGTON, UNITED STATES V BOOKER,
    AND CUNNINGHAM V CALIFORNIA BY
    FAILING TO PLACE UPON THE STATE THE
    BURDEN OF PROVING BEYOND A
    REASONABLE DOUBT A NEGATIVE ANSWER
    TO THE MITIGATION SPECIAL ISSUE. (CR. I-
    xxxii
    142-46; RR. V-68).
    POINT OF ERROR FIFTEEN
    APPELLANT’S RIGHTS UNDER THE
    CONFRONTATION CLAUSE OF THE SIXTH
    AND FOURTEENTH AMENDMENTS TO THE
    UNITED STATES CONSTITUTION WERE
    VIOLATED WHEN THE MOTHER OF
    DECEDENT, ROSIE GONZALEZ, TESTIFIED
    TO INFORMATION PERTAINING TO AN
    EXTRANEOUS OFFENSE DURING THE
    PUNISHMENT STAGE OF HIS TRIAL. (RR.
    XXXIV-25-28; XL-36-37, 66).
    POINT OF ERROR SIXTEEN
    APPELLANT’S RIGHTS UNDER THE
    CONFRONTATION CLAUSE OF ARTICLE 1,
    §10 OF THE TEXAS CONSTITUTION WERE
    VIOLATED WHEN THE MOTHER OF
    DECEDENT ROSIE GONZALEZ TESTIFIED TO
    INFORMATION PERTAINING TO AN
    EXTRANEOUS OFFENSE DURING THE
    PUNISHMENT STAGE OF HIS TRIAL. (RR.
    XXXIV-25-28; XL-36-37, 66).
    POINT OF ERROR SEVENTEEN
    REVERSIBLE ERROR OCCURRED WHEN
    THE MOTHER OF DECEDENT ROSIE
    GONZALEZ TESTIFIED TO INFORMATION
    PERTAINING TO AN EXTRANEOUS OFFENSE
    DURING THE PUNISHMENT STAGE OF HIS
    TRIAL IN VIOLATION OF THE HEARSAY
    xxxiii
    RULE. (RR. XXXIV-25-28).
    POINT OF ERROR EIGHTEEN
    THE TRIAL COURT ABUSED ITS DISCRETION
    AND VIOLATED APPELLANT’S RIGHTS
    UNDER THE CONFRONTATION CLAUSE OF
    THE UNITED STATES CONSTITUTION BY
    PERMITTING THE SEXUAL ASSAULT NURSE
    EXAMINER TO TESTIFY TO STATEMENTS
    MADE BY ROSIE GONZALEZ REGARDING
    AN EXTRANEOUS OFFENSE ALLEGEDLY
    COMMITTED BY APPELLANT. (RR. XXXV-11-
    20).
    POINT OF ERROR NINETEEN
    THE TRIAL COURT ABUSED ITS DISCRETION
    AND VIOLATED APPELLANT’S RIGHTS
    UNDER ARTICLE 1, §10 OF THE TEXAS
    CONSTITUTION BY PERMITTING THE
    SEXUAL ASSAULT NURSE EXAMINER TO
    TESTIFY TO STATEMENTS MADE BY ROSIE
    GONZALEZ REGARDING AN EXTRANEOUS
    OFFENSE ALLEGEDLY COMMITTED BY
    APPELLANT. (RR. XXXV-11-20).
    POINT OF ERROR TWENTY
    IF NONE OF APPELLANT’S POINTS OF
    ERROR ARE REVERSIBLE PER SE, THEN
    ALL OF THE ERRORS PRESENT
    C U M U L A T I V E E R ROR REQU IRING
    REVERSAL WHEN CONSIDERED TOGETHER.
    (Record in its entirety).
    xxxiv
    STATEMENT OF FACTS
    The following is a recitation of the facts of the case presented by the State
    of Texas during the guilt/innocence phase of Appellant’s trial before a jury
    pursuant to Rule 38.1 (f) of the Texas Rules of Appellate Procedure:
    Appellant, CEDRIC ALLEN RICKS, was convicted of the capital murder of
    his live-in girlfriend and her eight-year-old son by a previous marriage. The
    offense occurred on May 1, 2013, in Bedford, Tarrant County, Texas during the
    same criminal transaction. The legal sufficiency of the evidence to support his
    conviction is not challenged. The following factual summation2 is an overview
    of the evidence adduced at Appellant’s trial. Specific details concerning facts
    and testimony relevant to a prospective point of error will be summarized and
    discussed in the Argument and Authorities portion as they relate to the legal
    contention asserted.
    2
    The evidence will be summarized in the proper standard of review for
    legal sufficiency of the evidence questions which is “the light most favorable to
    the verdict.” See, Jackson v Virginia, 
    443 U.S. 307
    , 319 (1979); Johnson v
    State, 
    364 S.W.3d 292
    , 293-94 (Tex. Crim. App. 2012) cert denied, 
    133 S. Ct. 536
    (2012); Runningwolf v State, 
    360 S.W.3d 490
    , 494 (Tex. Crim. App.
    2012); Avery v State, 
    359 S.W.3d 230
    , 236 (Tex. Crim. App. 2012); Miles v
    State, 
    357 S.W.3d 629
    , 631 (Tex. Crim. App. 2011).
    1
    In May of 2013, twelve-year-old Damien Gonzalez3 lived with his mother,
    thirty-year-old Rosie Gonzalez,4 his brother, eight-year-old James Gonzalez,5 his
    half-brother, nine-month-old baby Thomas,6 and his mother’s boyfriend and
    father of Thomas, Appellant. (RR. XXXI-61; XXXII-16-20; XL-66-69). The five
    members of the household resided in an apartment complex in Bedford, Tarrant
    County, Texas. (RR. XXXI-28-36, 77; XXXII-18-19). May 1, 2013, dawned as a
    typical day for the Gonzalez family and Appellant. (RR. XXXII-20-24). That
    evening after work7 Rosie picked up her three boys and took them to Wal-Mart
    to shop for groceries. (RR. XXXII-20-21). Damien and James helped their mother
    unload the groceries and carry them upstairs to their apartment. (RR. XXXII-20-
    22). Once inside, Damien and James played with baby Thomas while Rosie
    retrieved the remainder of the bags from her vehicle and then began preparing
    dinner. (RR. XXXII-22-24).
    3
    Damien Gonzalez is a pseudonym.
    4
    Rosie Gonzalez is a pseudonym.
    5
    James Gonzalez is a pseudonym.
    6
    Thomas is a pseudonym.
    7
    Both Rosie and Appellant worked in the medical field for various
    doctors. (RR. XXXIV-7).
    2
    Matt Webb also resided at the same apartment complex on May 1, 2013.
    (RR. XXXI-42-43). He arrived home at around 6:00 that evening; he left about
    an hour later to go out to dinner. (RR. XXXI-43-44). As he walked along the
    corridor towards his vehicle he heard a man’s voice yelling and screaming
    expletives. (RR. XXXI-44).   As he approached the man he recognized his
    neighbors Rosie Gonzalez and Appellant. (RR. XXXI-44-46). Rosie, who was
    carrying a couple of bags of groceries, appeared distraught. (RR. XXXI-45). As
    he passed them, Mr. Webb nodded and continued on his way. (RR. XXXI-45).
    While at dinner he received numerous texts, voice mails, and Facebook
    messages about a domestic situation that had recently taken place near his
    apartment. (RR. XXXI-46-47). He later provided the police with a statement
    detailing what he had witnessed earlier that evening. (RR. XXXI-47).
    Around this same time Damien and James were having a great time
    playing in their shared bedroom with baby Thomas. (RR. XXXII-22-23). While the
    two older boys threw a tennis ball around their room their mother was in the
    kitchen preparing their supper. (RR. XXXII-23-24). At one point Damien became
    aware that Appellant and his mother were engaged in a heated verbal argument.
    (RR. XXXII-24-25). As the boys continued their play they heard their mother
    3
    abruptly scream. (RR. XXXII-25). Both boys bolted from their room towards the
    sound. (RR. XXXII-25-26). Damien watched as his mother and Appellant were
    striking each other with their fists. (RR. XXXII-26). Stunned, Damien observed
    Appellant throw his mother to the living room floor. (RR. XXXII-27). When
    Damien and James tried to intervene, Appellant threw Damien to the floor.8 (RR.
    XXXII-27-28). While both boys begged Appellant to stop, Appellant proceeded
    to strike Rosie multiple times with his fists. (RR. XXXII-27-28). He then walked
    into the kitchen and procured a knife from a kitchen drawer. (RR. XXXII-28-29).
    Her sons watched in horror as he walked back to Rosie and stabbed her multiple
    times. (RR. XXXII-29-31). She futilely attempted to ward off the blows. (RR.
    XXXII-30-31).
    Soon after Appellant began his attack on his mother, Damien ran back to
    his room and hid in his closet. (RR. XXXII-31-32). He attempted to dial 9-1-1 on
    his cell phone while fighting Appellant’s efforts to open the closet door. (RR.
    XXXII-32-33). When Appellant finally wrestled the door open Damien dropped
    his phone and grabbed the knife that was in Appellant’s hand. (RR. XXXII-33-34).
    8
    During this time Damien was unsure what was happening to James.
    (RR. XXXII-27).
    4
    Bleeding profusely from his left hand Damien ran back into the living room. (RR.
    XXXII-34-35). James, his face covered in blood, told Damien to get help. (RR.
    XXXII-35).
    Appellant abruptly pushed Damien down, held his head to the floor, and
    began stabbing him in the back of his neck and head. (RR. XXXII-36-37).
    Damien watched as Appellant did the same to James. (RR. XXXII-37-39).
    Appellant ceased his attack and began walking around the living room area. (RR.
    XXXII-39). After a few minutes Damien tried to stand. (RR. XXXII-39). Appellant
    walked over and resumed the knife attack. (RR. XXXII-39-40). When Damien
    feigned a gurgling noise, Appellant ended the assault.9 (RR. XXXII-40-41).
    Feigning death, Damien listened as Appellant moved about the apartment. (RR.
    XXXII-41-42). Appellant took a shower, changed his clothes, made some
    telephone calls, packed a bag, and left, driving away in Rosie’s gray Nissan
    automobile. (RR. XXXII-42-47).
    9
    Damien testified that he had emulated the same sound that James had
    made when Appellant was stabbing him. When James had gurgled in his own
    blood because his breathing was obstructed, Appellant had stopped stabbing
    him. Damien was hoping that Appellant would also stop his attack on him. (RR.
    XXXII-41, 161-62).
    5
    Chicago transplant and Appellant’s first cousin,10 Janiece Taylor,11 taught
    in the Arlington Independent School District at the time of her testimony. (RR.
    XXXI-58). Her parents, James and Lucinda Jones,12 resided in Mansfield. (RR.
    XXXI-58). Janiece and Appellant grew up together in south Chicago. (RR. XXXI-
    59-60).
    During the early evening hours of May 1, 2013, Janiece was at her parents’
    house in Mansfield.13 Her telephone rang. (RR. XXXI-63). Recognizing the
    number as Appellant’s she initially ignored his call.14 (RR. XXXI-63-64). When
    his calls persisted she relented and answered her phone. (RR. XXXI-64). On the
    other end Appellant cried, “I - - - I did something bad.” (RR. XXXI-64). Janiece
    began to sob, and Appellant asked to speak to his Uncle James. (RR. XXXI-64).
    10
    Appellant’s mother and Janiece’s father are sister and brother. (RR.
    XXXI-59-60).
    11
    Janiece Taylor is a pseudonym.
    12
    James and Lucinda Jones are both pseudonyms.
    13
    Janiece, her husband, her two sons, and her stepdaughter were living
    with her parents temporarily because she was in the process of having a home
    built. (RR. XXXI-62-63).
    14
    Janiece explained that when Appellant called she did not answer
    because of time constraints. She intended to return his call at a later time when
    she had sufficient time to talk with him. (RR. XXXI-63-64).
    6
    She handed the phone to her father and watched his face contort in shock and
    dismay as he listened to Appellant. (RR. XXXI-64-66). Appellant confessed to his
    uncle that he had killed Rosie and her two boys. (RR. XXXI-77-78). Appellant
    requested that Janiece and her parents drive to his apartment to pick up baby
    Thomas. (RR. XXXI-68, 78). When Janiece spoke with Appellant again she urged
    him to turn himself in to the police. (RR. XXXI-68).
    When she hung up from Appellant a second time, Janiece and her parents
    got into their car and began driving towards Appellant’s apartment. (RR. XXXI-
    69). While on the way Janiece called 9-1-1. (RR. XXXI-69). A few minutes later
    a Bedford police officer contacted her and requested that the family divert to the
    Bedford Police Department. (RR. XXXI-69-70). Once there the three family
    members provided the authorities with information enabling them to locate
    Appellant. (RR. XXXI-70-71, 78-79, 152-54). While at the police station Janiece
    was relieved to learn that Appellant had been taken into custody. (RR. XXXI-71).
    Bedford police officer Clayton Baxley received a dispatch at 8:42 p.m. on
    May 1, 2013, ordering him to proceed to Appellant’s apartment to perform a
    welfare check. (RR. XXXI-85-88). He was the first responder on the scene. (RR.
    XXXI-93). When he approached the front door of the apartment he heard a baby
    7
    screaming inside. (RR. XXXI-93). As the officer waited for permission to enter,
    he learned that Damien had contacted the police. (RR. XXXI-93-94, 110-13).
    Damien had told the 9-1-1 operator that his mother and brother were deceased,
    his infant brother was screaming, and Appellant had perpetrated the offense.
    (RR. XXXI-93-94).
    Within minutes Officer Baxley received permission to enter the apartment.
    (RR. XXXI-94). Due to the injuries to his hands Damien was unable to open the
    front door and called out for the officer to enter. (RR. VI-6; XXXI-94). When
    Officer Baxley stepped inside he observed Damien covered in blood from his
    head to his toes. (RR. XXXI-95). Upon closer inspection he could see severe
    lacerations to the back of the child’s head, neck, and shoulders, and blood was
    flowing rapidly from his wounds. (RR. XXXI-95-96). The officer began talking to
    Damien while waiting for back up and the paramedics. (RR. XXXI-96). After
    Lieutenant Meaders arrived the two began a “protective sweep” of the apartment
    for other victims as well as Appellant. (RR. XXXI-96-97).
    During their search Officer Baxley observed Rosie’s and James’ lifeless
    bodies lying on the living room floor. (RR. XXXI-97). They then found baby
    Thomas in a back room of the apartment uninjured. (RR. XXXI-97). Back outside
    8
    Officer Baxley held the flashlight while the paramedics tended to Damien’s
    wounds. (RR. XXXI-97-104).     Eventually Damien was transported to Cook
    Children’s Hospital for life saving medical treatment. (RR. XXXI-104-06).
    Heath E. Green was a Trooper employed by the State of Oklahoma at the
    time of his testimony. (RR. XXXI-125). On May 1, 2013, Trooper Green and his
    associate, Tracy Laxton, were assigned to patrol the southern end of Oklahoma
    in Garvin and Murray counties. (RR. XXXI-126-27). On that date they were
    working the “hoot” or midnight shift. (RR. XXXI-127). Later that night the
    troopers received a dispatch that Rosie Gonzalez’s gray Nissan was traveling
    along the I-35 interstate and that the occupant of the vehicle was wanted for
    questioning in a stabbing incident. (RR. XXXI-127-29, 133). The troopers were
    provided with Appellant’s name, the color of the vehicle, the license plate
    number, and the location of Appellant’s cell phone. (RR. XXXI-127-29). Troopers
    Green and Laxton pulled out in their separate vehicles and promptly located the
    Nissan at the sixty-eight mile marker on northbound I-35. (RR. XXXI-127-31).
    Appellant was eventually placed under arrest. (RR. XXXI-133-38).
    Back at Appellant’s apartment the police investigation continued. (RR.
    XXXI-182-253, 284-305). Various search warrants were obtained for the
    9
    apartment15, Rosie’s car, and eventually Appellant’s DNA. (RR. XLII-SPTX1,
    SPTX2, SPTX7, SPTX9, & SPTX10). Crime scene officers carefully combed the
    apartment for evidence. (RR. XXXI-182-255, 284-307).                     Several knives
    containing biological material were seized. (RR. XXXI-255). Testing found the
    DNA of Damien, Rosie, James, and Appellant on various items, including the
    knives. (RR. XXXIII-11-24).
    Dr. Tasha Greenberg, Deputy Medical Examiner for the Tarrant County
    District Attorney’s Officer performed the autopsies on Rosie and James
    Gonzalez. (RR. XXXII-109-11). She concluded that Rosie died of stab wounds of
    the neck, blunt force injuries of the head, and asphyxia as a combination and
    that her manner of death was a homicide. (RR. XXXII-113-50). James died as
    a result of stab wounds to the head and neck, and his manner of death was also
    a homicide. (RR. XXXII-151-77). Appellant was eventually indicted for the
    offense of capital murder. (CR. I-11).
    15
    Appellant challenges the Federal and State constitutionality of this
    search in points of error three and four because it was conducted hours before
    the actual search warrant was obtained.
    10
    SUMMARY OF APPELLANT’S ARGUMENTS
    The following is a summary of Appellant’s points of error on appeal
    pursuant to Rule 38.1 (g) of the Texas Rules of Appellate Procedure:
    POINTS OF ERROR ONE AND TWO:
    At the time of Appellant’s actual stop by the Oklahoma state troopers,
    Appellant had committed no crime, and the troopers did not have probable
    cause to arrest him.    Any evidence seized by law enforcement officials
    subsequent to Appellant’s illegal arrest should have been suppressed.
    Therefore, Appellant’s Motion to Suppress should have been granted in its
    entirety.
    POINTS OF ERROR THREE AND FOUR:
    Law enforcement officials began searching Appellant’s apartment after
    the welfare check and exigent circumstances ceased to exist. They proceeded
    to locate and seize items of evidence inside his apartment hours before the
    search warrant was procured in violation of the United States and Texas
    Constitutions and requisite Texas statutes.
    POINTS OF ERROR FIVE, SIX, AND SEVEN:
    Shortly after Appellant’s arrest he was taken before an Oklahoma
    11
    magistrate who arraigned him on his fugitive case (filed as a result of
    Appellant’s refusal to waive extradition) and denied him counsel. Subsequent
    to his arraignment the local sheriff threw Appellant into a cell with other
    prisoners who beat him severely. Almost immediately afterwards Appellant
    waived extradition and returned to Texas. Appellant’s denial of counsel violated
    the United States and Texas Constitutions as well as the Oklahoma statutes.
    As a result, his Motion to Suppress all evidence seized after his unlawful denial
    of counsel should have been granted.
    POINTS OF ERROR EIGHT AND NINE:
    The prejudicial effect of the two autopsy photographs of James Gonzalez’s
    brain outweighed their probative value. As a result, reversible error resulted in
    their admission into evidence before the jury.
    POINT OF ERROR TEN:
    Appellant will argue that Texas defendants charged with capital murder
    are afforded lesser protections than are required by the Constitution of the
    United States and applied to non-death penalty defendants.
    POINT OF ERROR ELEVEN:
    By requiring the jurors to determine whether there are “sufficient. .
    12
    .mitigating circumstances,” the second special issue implies that the burden to
    prove the mitigating circumstances of the case outweigh the aggravating
    circumstances is on the defense. This renders the statute unconstitutional under
    the Eighth and Fourteenth Amendments to the United States Constitution.
    POINT OF ERROR TWELVE:
    Appellant will argue that absent an allegation in the indictment as to the
    existence of the special issues and supporting facts the State intended to offer
    in support of those answers it was precluded from seeking the death penalty.
    POINT OF ERROR THIRTEEN:
    The thrust of this point is that the death penalty procedure in Texas
    violates the Eighth Amendment to the United States Constitution.
    POINT OF ERROR FOURTEEN:
    The Texas death penalty scheme violates the Due Process Clause of the
    Fourteenth Amendment because it does not put the burden of disproving the
    mitigation special issue beyond a reasonable doubt on the State in violation of
    the principles espoused in Apprendi v New Jersey, Ring v Arizona, Blakely v
    Washington, and Cunningham v California.
    POINTS OF ERROR FIFTEEN, SIXTEEN, AND SEVENTEEN:
    13
    Rosie Gonzalez’s mother was permitted to testify to damming and
    prejudicial statements allegedly made by Rosie that after the commission of an
    extraneous family violence assault against her Appellant had pressured her into
    a reconciliation in violation of the Confrontation Clause of the United States and
    Federal Constitutions as well as the hearsay rule.
    POINTS OF ERROR EIGHTEEN AND NINETEEN:
    The trial court committed reversible error by permitting the Sexual Assault
    Nurse Examiner to testify about alleged statements made by Rosie Gonzalez
    pertaining to an extraneous assault allegedly committed by Appellant against
    her. These statements violated Appellant’s rights under the Confrontation
    Clause of the Federal and State Constitutions.
    POINT OF ERROR TWENTY:
    If this Court concludes than none of the above points of error constitute
    harm, then Appellant’s conviction and death sentence should be reversed based
    on the cumulative error in the record.
    14
    POINT OF ERROR ONE
    THE TRIAL COURT ERRED IN DENYING
    APPELLANT’S MOTION TO SUPPRESS ALL
    EVIDENCE SEIZED BY LAW ENFORCEMENT
    OFFICIALS SUBSEQUENT TO HIS
    WARRANTLESS ARREST WHICH WAS IN
    VIOLATION OF THE FOURTH AND
    FOURTEENTH AMENDMENTS TO THE
    UNITED STATES CONSTITUTION. (CR. I-284-
    99; II-409; RR. VI-144-87, 231-41; XXXII-
    71; XLII-SPTX 1, 2, 7, 8, 9, 10, 11; XLV-DX
    1).
    POINT OF ERROR TWO
    THE TRIAL COURT ERRED IN DENYING
    APPELLANT’S MOTION TO SUPPRESS ALL
    EVIDENCE SEIZED BY LAW ENFORCEMENT
    OFFICIALS SUBSEQUENT TO HIS
    WARRANTLESS ARREST WHICH WAS IN
    VIOLATION OF ARTICLE 1, SECTION 9 OF
    THE TEXAS CONSTITUTION AND ARTICLES
    1.06, 18.02, AND 38.23 OF THE TEXAS
    CODE OF CRIMINAL PROCEDURE. (CR. I-
    284-99; II-409; RR. VI-144-87, 231-41;
    XXXII-71; XLII-SPTX 1, 2, 7, 8, 9, 10, 11;
    XLV-DX 1).
    ARGUMENT AND AUTHORITIES
    A. The Facts
    During the hearing on Appellant’s Motion to Suppress all of the evidence
    15
    seized subsequent to his warrantless arrest, Trooper Laxton, one of the arresting
    officers out of Oklahoma, testified on direct examination as follows:
    Q.    Around 10:30 that night, where
    were you located?
    A.     Myself and Trooper Green was
    at the gas station right off exit 55 on I35,
    which is right on the Garvin/Murray County
    border. We had just went inside to take a
    short break.
    Q.    At 2258 hours, did you hear a
    broadcast over your police radio?
    A.   I did hear the broadcast. Let
    me check on the times. Yes.
    *     *    *
    Q.    What information did you
    receive over your police radio at that time?
    A.     This is kind of paraphrasing. I
    can’t say it exactly, but basically that there
    was a vehicle - - a silver or gray vehicle
    northbound - - Nissan Altima northbound on
    I35, possibly had a driver in it named
    Cedric Ricks. The vehicle had a Texas tag
    of CP4-M829, and the suspect - - or the
    person that was supposedly driving the
    vehicle was wanted in questioning for a
    16
    stabbing that happened in Bedford, Texas.
    *    *     *
    Q.     And what did you and Trooper
    Green do at that time?
    A.      We immediately went to our
    cars. The original broadcast, I believe, was
    just south of us. So we figured, with the
    time delay, we jumped on the interstate
    and started north, and we just started north
    trying to - - he was in his car; I was in mine.
    He was just no more than a few hundred
    yards in front of me. We were running kind
    of tandem, running north on the interstate
    trying to locate that vehicle.
    *    *     *
    Q.    At some point, did either you or
    Trooper Green locate the vehicle?
    A.     Yes.
    Q.     And who located it first?
    A.     Trooper Green saw the vehicle
    first. He radioed back to me. I saw him
    hitting his brakes as he was slowing down,
    and he was telling me that he just passed -
    - or he just pulled up next to the vehicle. I
    was - - I seen it about the same time he
    was talking on the radio, but he saw it just
    right before I did.
    17
    *   *    *
    Q.    Did either you or Trooper Green
    immediately stop the vehicle at that time?
    A.    No.
    Q.    What did you do?
    A.     I radioed back to my dispatch,
    which is Ardmore Troop F, to ask - - or
    basically to tell them, “We’ve located the
    vehicle. Does Bedford or does - - Bedford
    PD, is they - - are they wanting the vehicle
    stopped or - - we’ve located, what do they
    want to do?
    Q.    So it was your understanding at
    that time that your dispatcher was in
    contact with this law enforcement agency
    that wants the vehicle stopped?
    A.     Yes. I’m - - the length of time
    from asking questions to getting answers,
    I’m pretty sure they were on the phone with
    somebody from Bedford, but I’m not sure
    who.
    Q.    Okay. And when you asked
    them that question and they told you what
    they told you, what did you do?
    A.    They said, “Yes, stop the
    vehicle.” At that time, myself and Trooper
    Green both turned on our lights, all of our
    18
    emergency lighting at about the same
    time. He was actually - - actually, we
    waited just a few more seconds. When
    they said, “Yes, stop the vehicle,” we were
    coming up on a bridge with guardrail. It’s
    a crest of a hill. It’s kind of an unsafe spot
    to pull anybody over. Right past this
    bridge, there’s no guardrail. It opens up to
    just grass on both sides. So we waited a
    few seconds. As soon as we cleared the
    bridge, we turned on the lights to - - to start
    the traffic stop.
    Q.   How long would you say you
    followed the vehicle at the time you first
    observed it until the time you decided to
    stop it?
    A.      Approximately a mile, give or
    take a little bit. I don’t - - about a mile. No
    more than a mile maybe, half a mile.
    Q.   And during that time, did you
    observe the vehicle - - the occupant of the
    vehicle make any traffic violations?
    A.     No.
    Q.     Was the vehicle speeding?
    A.     No, it was not.
    Q.    So when you stopped the
    vehicle, you did so at the direction of your
    dispatcher, correct?
    19
    A.     Yes.
    Q.      Who was speaking to
    authorities in Texas - - law enforcement
    authorities in Texas, correct?
    A.     Yes.
    Q.    When you stopped the vehicle -
    - or excuse me. Let me back up. When you
    turned on your overhead lights, what did
    the driver of the vehicle do?
    A.    Immediately pulled to the right
    shoulder and stopped with the left tires
    within just a couple of inches of the white
    fog line.
    (RR. VI-146-51).
    However, on cross-examination the Trooper conceded that at the time he
    actually conducted the stop of Appellant not only had Appellant committed no
    traffic violations of any kind, but also he had no information that Appellant had
    committed any crime in any jurisdiction. The record reflects:
    Q.   [BY DEFENSE COUNSEL] And,
    Trooper Laxton, she’ll show you that if you
    need to see it, but in Texas, we use the
    phrase “probable cause.” You’re familiar
    with that?
    20
    A.     Yes.
    Q.     On those statutes, on arresting
    someone for a felony not in your view,
    Oklahoma chose to use “reasonable
    cause.” Y’all use that term a lot, right?
    A.     Correct.
    *      *   *
    Q.    But here’s what I’m getting at.
    And my question is not whether this is an
    arrest or detainment. I’m not trying to
    argue about what is what. I’m not trying to
    argue with you about what you did. Okay?
    But what I’m getting at is: At the time you
    chose to turn on your red and blue lights to
    initiate the traffic stop, all you knew was
    what you had been told by your dispatcher
    in two different conversations: One, Mr.
    Ricks is wanted for questioning in a
    stabbing in Bedford, and the second one
    was a response, which was Bedford PD
    would like him stopped, correct?
    A.     That’s correct.
    *      *   *
    Q.     Well, did you - - did you feel like
    you had reasonable cause that the - -
    because the statute says you can make a
    stop for a felony, okay, if - - or you can
    arrest a person for a felony, is what it says,
    21
    if you have reasonable cause that a felony
    had been committed even if it wasn’t in
    your view. It’s not exactly in that order, but
    that’s what it says. And my question is: At
    that point in time, when you turned on the
    red and blue lights, did you believe that you
    had reasonable cause that Mr. Ricks had
    committed a felony?
    A.     Counsel, I don’t know if I’m
    overthinking this. I mean, because there
    was more - - there was more questions
    asked and answered to get to the arrest
    point of it.
    Q.     I understand that when you
    finally said, “You’re under arrest,” that was
    based on other conversations. I’m not
    trying to argue about that.
    My question is: At the time you
    stopped him, you obviously didn’t know all
    the conversations with Detective Moody
    and the other people. I’m just talking
    about when they said, “Pull this car over.”
    A.    The information that I had - -
    I’m going to try to answer this as best I can,
    if I understand you right. The information
    I had when I turned my lights on was not
    enough - - that just at its own was not
    enough for me to go through the whole
    entire stop, place Mr. Ricks under arrest,
    take him to jail, all the above.
    22
    Q.    You had to gain information
    after you stopped him?
    A. Yes. Is that what you’re answering
    --
    Q.     Exactly.
    A.     - - or asking, sir? Yes.
    (RR. VI-183-86).
    The trial court granted Appellant’s Motion to Suppress all of the evidence seized
    subsequent to his warrantless arrest as to a few items uncovered by law
    enforcement during their, Appellant later contends unlawful search, of
    Appellant’s apartment prior to their procurement of a warrant. In all other
    matters Appellant’s Motion to Suppress was denied. (CR. II-409). Defense
    counsel objected to the admission of all of the other items of evidence seized
    subsequent to Appellant’s arrest and requested a running objection to all such
    evidence. (RR. XXXII-71).
    B. The Law Under the Federal and Texas Constitutions
    An investigative detention is a seizure. Francis v State, 
    922 S.W.2d 176
    ,
    178 (Tex. Crim. App. 1996); Johnson v State, 
    912 S.W.2d 227
    , 235 (Tex. Crim.
    App. 1995). As a result, it must be reasonable to meet the standards required
    23
    by the United States and Texas Constitutions. See, U.S. Const. amend. IV and
    XIV as well as Tex. Const. art. I §9. An occupant of an automobile is just as
    subject to a brief detention as is a pedestrian. Adams v Williams, 
    407 U.S. 143
    ,
    146 (1972); Rhodes v State, 
    945 S.W.2d 115
    , 117 (Tex. Crim. App.) cert
    denied, 
    552 U.S. 894
    (1997). The reasonableness of a temporary detention
    must be examined in terms of the totality of the circumstances and will be
    justified when the detaining officer has specific articulable facts, which taken
    together with rational inferences from those facts, lead him to conclude that the
    person detained actually is, has been, or soon will be engaged in criminal
    activity. Woods v State, 
    956 S.W.2d 33
    , 38-39 (Tex. Crim. App. 1997).
    In State v Jennings, 
    958 S.W.2d 930
    , 932 (Tex. App. - - Amarillo 1997,
    no pet.) a peace officer was dispatched to a domestic disturbance in the City of
    
    Plainview. 958 S.W.2d at 932
    . En route to the domestic disturbance call, she
    received a dispatch over her police radio describing a vehicle that was wanted
    for questioning in regards to the domestic disturbance. 
    Id. The officer
    located
    and stopped the vehicle that matched the broadcast based solely on the fact
    that the driver of the vehicle was wanted for questioning in regards to the
    domestic disturbance. 
    Id. On appeal,
    the Court of Appeals found that “the totality
    24
    of the circumstances evince only a request to stop coupled with a description of
    the vehicle to be stopped,” and that “these circumstances alone are not enough
    to illustrate that the initial detention was justified on the basis of reasonable
    suspicion or probable cause.” Id at 933, (citing Rance v State, 
    815 S.W.2d 633
    ,
    635 n. 2 (Tex. Crim. App. 1991)).
    Art. I, §9 of the Tex. Const. provides: “The people shall be secure in their
    persons, houses, papers and possessions, from all unreasonable seizures or
    searches, and no warrant to search any place, or to seize any person or thing,
    shall issue without describing them as near as may be, nor without probable
    cause, supported by oath or affirmation.” Pursuant to Heitman v State, 
    815 S.W.2d 681
    , 690 (Tex. Crim. App. 1991) this Court, when analyzing and
    interpreting art. I, §9 of the Tex. Const., will not be bound by Supreme Court
    decisions addressing the comparable Fourth Amendment issue. The Tex. Const.
    affords greater individual protections to its citizens in search and seizure cases
    than the Fourth Amendment to the U.S. Const. See also, arts. 1.06, 18.02, and
    38.23 Tex. Crim. Proc. Code Ann. (Vernon 1965, 2003, and Vernon Supp.
    2004).
    In the case at bar, when the Trooper turned on his lights and sirens to
    25
    initiate his traffic stop of Appellant he admitted that he lacked reasonable
    suspicion and probable cause to believe that Appellant had committed any type
    of crime in any jurisdiction. (RR. VI-185-86). As a result Appellant’s rights under
    the Fourth and Fourteenth Amendments to the United States Constitution, art.
    I § 9 of the Tex. Const., and those under the enumerated state statutes were
    violated, and the trial court erred by denying Appellant’s Motion to Suppress all
    of the evidence seized subsequent to his unlawful arrest.
    This error is subject to harmless error review. Appellant contends that this
    Court must reverse the trial court’s judgment of guilt unless this Court
    determines beyond a reasonable doubt that the error did not contribute to
    Appellant’s conviction. Appellant believes that the State’s admission of the
    instruments of the crime as well as all of the other numerous items of evidence
    that were seized as a result of the various search warrants contributed to the
    jury’s verdict of guilt against him. Because of this Appellant respectfully prays
    that this Honorable Court sustain points of error one and two, reverse the
    Judgment of the trial court, and remand his case for a new trial.
    26
    POINT OF ERROR THREE
    THE TRIAL COURT ERRED IN DENYING
    APPELLANT’S MOTION TO SUPPRESS ALL
    EVIDENCE SEIZED BY LAW ENFORCEMENT
    OFFICIALS SUBSEQUENT TO THE
    WARRANTLESS SEARCH OF HIS
    APARTMENT WHICH WAS IN VIOLATION OF
    THE FOURTH AND FOURTEENTH
    AMENDMENTS TO THE UNITED STATES
    CONSTITUTION. (CR. I-284-99; II-409; RR.
    VI-74-117, 231-41; XXXII-71; XLII-SPTX 1).
    POINT OF ERROR FOUR
    THE TRIAL COURT ERRED IN DENYING
    APPELLANT’S MOTION TO SUPPRESS ALL
    EVIDENCE SEIZED BY LAW ENFORCEMENT
    OFFICIALS SUBSEQUENT TO THE
    WARRANTLESS SEARCH OF HIS
    APARTMENT WHICH WAS IN VIOLATION OF
    ARTICLE I, SECTION 9 OF THE TEXAS
    CONSTITUTION AND ARTICLES 1.06,
    18.02, AND 38.23 OF THE TEXAS CODE OF
    CRIMINAL PROCEDURE. (CR. I-284-99; II-
    409; RR. VI-74-117, 231-41; XXXII-71;
    XLII-SPTX 1).
    ARGUMENT AND AUTHORITIES
    A. The Facts
    Bedford Detective, Joey Gauger, testified at the hearing on Appellant’s
    Motion to Suppress that when the responding officers initially entered the
    27
    apartment during the evening hours of May 1, 2013, to provide medical
    assistance to Damien, to rescue baby Thomas, and to check for survivors of the
    attack they had observed various items of evidence that would eventually need
    to be collected. (RR. VI-83-84). On direct examination Detective Gauger then
    described entering Appellant’s apartment after both the exigent and welfare
    check circumstances had officially terminated and before a warrant to search
    the premises had been procured. The record states in pertinent part as follows:
    Q.   And had you learned, at least
    upon arrival or en route, that certain items
    of evidence had been discovered by the
    initial responding officers?
    A.     Once I arrived on the scene and
    - - and had that conversation with Crime
    Scene Technician Grice, I learned that there
    was evidence that had been observed by
    the initial responding officers.
    Q.   And do you recall what time
    you entered into the apartment, the crime
    scene?
    A.     I don’t - - I don’t recall the exact
    time, but I do believe it was around 11:18
    p.m.
    Q.   Okay. And when you entered
    the apartment, what did you do?
    
    28 A. I
    began to assist Crime Scene
    Grice with taking notes prospective to the
    evidence that was collected.
    Q.   Was        she     also     taking
    photographs?
    A.     Yes, she was.
    Q.    While you were in the crime
    scene, did personnel from the Tarrant
    County Medical Examiner’s Office arrive
    inside the apartment?
    A.     Yes, they did. Considerable
    time after I had been in the apartment,
    they did arrive.
    Q.     Do you recall what time it was?
    A.     I believe at 3:38 a.m. on the
    2nd of May.
    Q.      And why did they come to the
    scene?
    A.     They - - they arrived on scene to
    transport - - have the bodies transported
    from the scene to the ME’s office.
    Q.  While you were out there, did
    you hear an investigator for the Tarrant
    County Medical Examiner’s Office make
    any comments regarding potential murder
    weapons?
    29
    A.   Yes, he did.
    Q.   What happened?
    A.    He - - he - -he told me that he - -
    or he summoned me and said, “Hey, I
    found a knife in the second drawer of the
    kitchen, and there’s some blood on the
    knife.” I said, “Okay.” And I went over
    there, and I looked. The drawer was
    cracked open about two and a half inches,
    and you could see a knife in the drawer
    that had blood on it.
    Q.    Okay.       And it’s your
    understanding that the drawer was already
    open when the medical examiner
    investigator observed the bloody knife; is
    that correct?
    A.   Yes, it was.
    Q.   And what did you do at that
    time?
    A.   At that time, I notified Crime
    Scene Technician Grice of the knife so she
    could document and collect the knife and
    take photographs of it.
    Q.    And did the medical examiner
    investigator - - did he continue his duties
    and eventually complete those duties?
    A.   Yes, he did.
    30
    Q.     What did you do next?
    A.    After he finished his duties,
    then I exited the crime scene. There was
    one point in the crime scene I did take a
    video of the crime scene.
    Q.   Do you know what time you left
    the crime scene?
    *    *     *
    A.     I left at - - from the crime scene
    log, I left the crime scene at 1:22 a.m. and
    returned at 1:45 a.m. on May 2nd.
    Q.     Okay. But you left the crime
    scene after the medical examiner’s office
    left; is that correct?
    A.   Yes, I did. I left right at about
    the same time, which was at 4:38 a.m. on
    May 2nd.
    Q.   So you - - when you originally
    left the scene, you left to retrieve some
    items, correct?
    A.    Yes. I left the scene to retrieve
    the - - the police department crime scene
    video camera.
    Q.     Okay. Then you returned,
    completed your video, and then you left
    shortly after the medical examiner’s office
    31
    left; is that correct?
    A.    That’s correct.
    Q.    Did you ever go back to the
    crime scene after that?
    A.    No, I did not.
    Q.   Okay.        Detective, you
    mentioned Officer Grice; is that correct?
    A.    Crime Scene Technician Grice.
    Q.    I’m sorry.           Crime Scene
    Technician Grice.
    And the evidence and items
    that she was photographing, documenting,
    those are the items that had been seen by
    the responding officers and had been in
    plain view; is that correct?
    A.    That is correct.
    (RR. VI-83-87).
    The State did not obtain the evidentiary search warrant for Appellant’s
    apartment until 10:13 a.m. on May 2, 2013. (RR. XLII-SPTX 1).
    Appellant has preserved this error for appellate review by filing a pretrial
    Motion to Suppress and obtaining a ruling on that Motion from the trial court.
    32
    (CR. II-409). See, Tex. R. App. Proc. 33.1 (a); Tex. R. Evi. 103 (a) (1). Though not
    necessary for preservation, Appellant objected, in front of the jury, to the
    admission of all items of evidence seized prior to the Bedford Police
    Department’s obtainment of a search warrant. (RR. XXXII-71).
    B. The Law Under the Federal and Texas Constitutions
    “The right of the people to be secure in their persons, houses, papers, and
    effects, against unreasonable searches and seizures, shall not be violated. . .”
    U.S. Const. Amend. IV. Searches conducted without a warrant are per se
    unreasonable under the Fourth Amendment, subject only to a few specifically
    established and well delineated exceptions. Katz v United States, 
    389 U.S. 347
    ,
    357 (1967) (footnotes and citations omitted). “The five basic exceptions are:
    (1) consent, (2) incident to a lawful arrest, (3) with probable cause to search but
    with exigent circumstances, (4) in hot pursuit, and (5) stop and frisk.” Kolb v
    State, 
    532 S.W.2d 87
    , 89 n. 1 (Tex. Crim. App. 1976). Once a defendant shows
    that a search or seizure or seizure occurred without a warrant, the burden shifts
    to the State to prove the reasonableness of the search or seizure. Russell v
    State, 
    717 S.W.2d 7
    , 9 (Tex. Crim. App. 1986). A warrantless search of a
    residence is presumptively unreasonable. Gutierrez v State, 
    221 S.W.3d 680
    ,
    33
    685 (Tex. Crim. App. 2007) (citing Payton v New York, 
    445 U.S. 573
    , 586
    (1980)). To hold a warrantless search valid, a reviewing court must make three
    findings: (1) that the search was supported by probable cause, the threshold
    requirement of any valid search; (2) that the failure to obtain a search warrant
    was excusable because the search was incident to a lawful arrest or was justified
    by some other exigent circumstance furnishing an exception to the warrant
    requirement; and (3) that the scope of the search was consistent with its
    purpose. Maldonado v State, 
    528 S.W.2d 234
    , 239 (Tex. Crim. App. 1975)
    overruled in part on other grounds, State v Guzman, 
    959 S.W.2d 632
    (Tex.
    Crim. App. 1998); Sullivan v State, 
    564 S.W.2d 698
    (Tex. Crim. App. 1977). As
    explained herein, the record in this case does not support a finding of the second
    or third criteria.
    Here, the search of Appellant’s apartment was conducted without a
    warrant. At the hearing on Appellant’s Motion to Suppress, the State argued
    (inter alia) that (a) when the police first arrived at Appellant’s apartment, “they
    had the right to go into that apartment to make a welfare check,” (b) their
    “search” of the apartment was “a protective sweep of that apartment;” and (c)
    the evidence they seized “was in plain view.” (RR. VI-242-43).
    34
    Appellant does not contest that the law enforcement officers’ initial entry
    into his apartment was legal. However, the scope of their subsequent search
    of his apartment exceeded the legal justification for their entry into (and
    presence in) the apartment. First, the exigent circumstances only allowed the
    police to enter Appellant’s apartment. Such exigency did not make the ensuing
    warrantless search of the apartment legal. Second, the warrantless search of
    Appellant’s apartment was not “a protective sweep.” A “protective sweep” is a
    quick and limited search of a premises, incident to an arrest and conducted to
    protect the safety of police officers or others. Maryland v Buie, 
    494 U.S. 325
    ,
    327 (1990). The search of Appellant’s apartment was not conducted incident
    to any arrest. Assuming arguendo that this Court decides to expand the
    definition of a “protective sweep” to include the type of search at issue here, this
    search went beyond what the Supreme Court said the Fourth Amendment would
    permit. Under Buie, a protective sweep is permitted by the Fourth Amendment
    if the searching officer possesses a reasonable belief based on specific and
    articulable facts that, taken together with the rational inferences from those
    facts, reasonably warrant the officer in believing that the area swept harbored
    an individual posing a danger to the officer or others. 
    Id. Thus, in
    Reasor v State,
    35
    
    12 S.W.3d 813
    (Tex. Crim. App. 2000) this Court concluded that the protective
    sweep in the defendant’s home was illegal where the officer did not express his
    belief that any third persons were inside the defendant’s home or articulate his
    belief that a third person inside the home was attempting to jeopardize either
    his or the public’s safety. Reasor at 817.
    Further, a “protective sweep” is nevertheless not a full search of the
    premises, Buie at 335. It “is narrowly confined to a cursory visual inspection of
    those places in which a person might be hiding” and “lasts no longer than is
    necessary to dispel the reasonable suspicion of danger.” Buie at 327, 335-36.
    The search of Appellant’s apartment did not meet any of these criteria. Officer
    Noel Scott, one of the first responders to the scene, testified that Damien had
    advised that Appellant had already left the scene. (RR. VI-29-30). If this was
    accurate information a “protective sweep” was rendered unnecessary and
    consequently, illegal.
    Under certain circumstances, the police may seize evidence in plain view
    without a warrant. Coolidge v New Hampshire, 
    403 U.S. 443
    , 465 (1971)
    overruled in part, Horton v California, 
    496 U.S. 128
    (1990). The Supreme Court
    explained in Horton v California just what those “circumstances” are:
    36
    It is, of course, an essential predicate to any valid
    warrantless seizure of incriminating evidence that the
    officer did not violate the Fourth Amendment in arriving
    at the place from which the evidence could be plainly
    viewed. There are, moreover, two additional conditions
    that must be satisfied to justify the warrantless seizure.
    First, not only must the item be in plain view, its
    incriminating character must also be “immediately
    apparent.” 
    Id. at 403
    U.S. 466; see also Arizona v 
    Hicks, 480 U.S. at 326-327
    . . ..Second, not only must the
    officer be lawfully located in a place from which the
    object can be plainly seen, but he or she must also have
    a lawful right of access to the object itself. . . .
    
    496 U.S. 128
    , 136-37 (1990). Evidence that an officer purposefully seeks out
    is not in “plain view.” White v State, 
    729 S.W.2d 737
    , 742 (Tex. Crim. App.
    1987), disavowed in part, State v Dobbs, 
    323 S.W.3d 184
    (Tex. Crim. App.
    2010)16 (citing Walter v United States, 
    447 U.S. 649
    (1980)).
    In White, police responded to a disturbance call at an El Paso apartment
    complex and were advised by the manager of the complex that a fight was in
    16
    In Dobbs, this Court held that, “so long as probable cause to believe
    that items found in plain view constitute contraband arises while police are still
    lawfully on the premises, and any further investigation into the nature of those
    items does not entail an additional and unjustified search of, or unduly
    prolonged police presence on, the premises, the seizure of those items is
    permissible under the Fourth 
    Amendment.” 323 S.W.3d at 185
    . Thus, to the
    extent White remains good law, it is applicable to this case, and Dobbs is
    inapposite, because this case does not involve “an additional and unjustified
    search of,” and an “unduly prolonged police presence on, the premises.”
    37
    progress in one of the 
    units. 729 S.W.2d at 738
    . While the officers were
    questioning the two men they observed exiting the apartment in question, the
    manager walked into the open apartment, then called out and asked the officers
    to examine “damage” apparently resulting from the fight between the two men.
    
    Id. Two officers
    entered the apartment and observed property strewn about the
    floor. 
    Id. at 738-39.
    One officer observed a J.C. Penney credit card in the top of
    the stove. 
    Id. at 739.
    The name on the card did not match either of the names
    given earlier by the two tenants. 
    Id. After checking
    with the police department
    and receiving a negative report that the card was stolen, the officer returned the
    credit card to the stove where he had found it and then “looked around the
    apartment,” noticing that there was a large amount of “female” jewelry strewn
    about one area of the floor and several stereos and other items of personal
    property also scattered about the apartment. 
    Id. The officer
    took the serial
    number off the back of one stereo without moving the piece of equipment and
    also wrote down the name and address of an individual that was written on a
    backpack found on the floor. 
    Id. He then
    called the police station to check on
    the items, but again received a negative response that the items were stolen. 
    Id. Finally, the
    officer left the apartment, walked upstairs to the manager’s
    38
    apartment, phoned the records and identification section of the police
    department, gave them the name found on the backpack to check for filed
    complaints, and was advised that the individual had indeed filed a burglary
    complaint. 
    Id. The Court
    of Criminal Appeals ruled that the officers lacked probable
    cause to search for or to seize the property from the defendant’s apartment. 
    Id. at 740.
    Even if the initial police entry was legal, the Court said, “the officer’s
    subsequent conduct satisfies neither the inadvertent nor the probable cause
    prong of the modified Coolidge test.” 
    Id. at 741.
    The officers’ actions in
    continuing to “look around” the apartment were “clearly exploratory in nature,”
    and it was only “after further investigative steps were taken, albeit most
    thoroughly,” that the officers had probable cause to seize the items as stolen
    goods. 
    Id. Similarly, in
    the instant case, the officers’ warrantless search of
    Appellant’s apartment after the exigent circumstances that justified their initial
    entry no longer existed “has all the elements of a systematic search for
    incriminating evidence.” 
    Id. at 742.
    Tex. Crim. Proc. Code Ann. art. 38.23 (a) (Vernon Supp. 2004) bars the
    admission of “evidence obtained by an officer or other person in violation of any
    39
    provisions of the Constitution or laws of the State of Texas, or of the Constitution
    or laws of the United States of America,” against the accused on the trial of any
    criminal case. Appellant has 
    shown supra
    that all of the items seized from his
    apartment subsequent to the procurement of the search warrant were obtained
    in violation of the Fourth Amendment to the United States Constitution.
    Therefore, the trial court erred in admitting all of the items in evidence at
    Appellant’s trial17. Further, because additional items of evidence were “come at
    by exploitation of that illegality,” all of it should have been excluded as well.
    Wong Sun v United States, 
    371 U.S. 471
    , 488 (1963).
    Just as the search of his apartment exceeded the scope of the Fourth and
    Fourteenth Amendments to the United States Constitution, Appellant also
    asserts that it exceed that permitted under art. I, §9 of the Texas Constitution.
    As stated in his second point of error this Court in Mayberry, 
    830 S.W.2d 176
    ,
    180 (Tex. Crim. App. 1992) concluded that the Texas Constitution affords
    greater individual protections to its citizens in search and seizure cases than the
    17
    Appellant notes that the trial court did grant his Motion to Suppress
    regarding those few items that the police seized from “inside the nightstand, the
    papers and the photograph, and as to the bandages collected from the
    comforter.” (CR. II-409).
    40
    Fourth Amendment. However, this Court has utilized the test for a “protective
    sweep” articulated in Maryland v Buie. 
    Reasor 12 S.W.3d at 816-17
    .
    Appellant has shown that the trial court erred in admitting all of the
    illegally seized evidence and that the error was an abuse of discretion. Because
    the error is constitutional error that is subject to a harmless error analysis, this
    Court must reverse the Judgment unless the Court determines beyond a
    reasonable doubt that the error did not contribute to Appellant’s conviction or
    punishment. Tex. R. App. Proc. 44.2 (a). Appellant contends that the admission
    of the items of evidence, particularly the instruments used in the offense, did
    contribute to his conviction and ultimate death sentence. Though Damien
    testified during the guilt innocence phase of Appellant’s trial regarding what he
    had witnessed, the jury was allowed to view and touch the instrumentalities of
    the massacre. Surely one could reason that such knowledge of inadmissible and
    prejudicial items of destruction contributed to the jury’s findings of guilt and
    subsequent death sentence. Because of this Appellant respectfully prays that
    this Court reverse the trial court’s Judgment and remand his back to the trial
    court with instructions that he be afforded a new trial. See, Tex. Crim. Proc. Code
    Ann. art. 44.29 (a) (Vernon Supp. 2012).
    41
    POINT OF ERROR FIVE
    THE TRIAL COURT ERRED IN DENYING
    APPELLANT’S MOTION TO SUPPRESS ALL
    EVIDENCE SEIZED BECAUSE APPELLANT
    WAS DENIED HIS RIGHT TO COUNSEL IN
    VIOLATION OF THE FIFTH, SIXTH, AND
    FOURTEENTH AMENDMENTS TO THE
    UNITED STATES CONSTITUTION. (CR. I-284-
    99; RR. VI-120-43, 188-228, XLII-SPTX3,
    SPTX4, SPTX5, & SPTX6).
    POINT OF ERROR SIX
    THE TRIAL COURT ERRED IN DENYING
    APPELLANT’S MOTION TO SUPPRESS ALL
    EVIDENCE SEIZED BECAUSE APPELLANT
    WAS DENIED HIS RIGHT TO COUNSEL IN
    VIOLATION OF ARTICLE I, SECTION 10 OF
    THE TEXAS CONSTITUTION AND ARTICLES
    1.05, 15.17, AND 38.23 OF THE TEXAS
    CODE OF CRIMINAL PROCEDURE. (CR. I-
    284-99; RR. VI-120-43, 188-228, XLII-
    SPTX3, SPTX4, SPTX5, & SPTX6).
    POINT OF ERROR SEVEN
    THE TRIAL COURT ERRED IN DENYING
    APPELLANT’S MOTION TO SUPPRESS ALL
    EVIDENCE SEIZED BY LAW ENFORCEMENT
    BECAUSE APPELLANT WAS DENIED HIS
    RIGHT TO COUNSEL IN VIOLATION OF
    OKLAHOMA STATUTES 22-251 AND 22-
    252. (CR. I-284-99; RR. VI-120-43, 188-
    228, XLII-SPTX3, SPTX4, SPTX5, & SPTX6).
    42
    ARGUMENT AND AUTHORITIES
    A. The Facts
    After Appellant was placed under arrest by the Oklahoma Troopers the
    following sequence of events occurred as summarized in Appellant’s Motion to
    Suppress all evidence seized subsequent to his unlawful arrest, the unlawful
    search of his apartment, and his denial of counsel. The record shows:
    At the police station, photographs
    were made of the Defendant’s injuries at
    approximately 3:40 a.m. on May 2, 2013.
    A discussion between the police and the
    Defendant, which concerned the procedure
    for taking the photographs was done, but
    very little conversation otherwise occurred.
    The Defendant did ask how his situation
    was, and the Detectives stated that they
    would talk at a later time.
    At approximately 4:25 a.m. on May
    2, 2013, the Defendant was taken to a
    local hospital.    After treatment, the
    Defendant was returned to the Garvin
    County, Oklahoma jail. While at the
    hospital, the Defendant remained in police
    custody.
    The Defendant was interviewed at
    the Garvin County jail for about 5 minutes
    on 8:16 a.m. on May 2, 2013 by Detective
    Shelley and Mack. During the first minute
    43
    of the interview, the Defendant
    unequivocally invoked his right to counsel.
    Rather than stop the interview, the
    detectives went on to read the Defendant
    Miranda warnings. The Defendant then
    asked about underwear, medicine, and the
    nature of his charges. The detectives told
    the Defendant that he was being charged
    with two counts of murder, and one count
    of criminal attempted murder.          The
    interview was then terminated.
    At approximately 10:00 a.m. on May
    2, 2013, the Defendant was taken before
    Special Judge Trisha Misak of the 21st
    District Court of Oklahoma. At this time,
    the Defendant requested a hearing on his
    extradition and did not waive extradition to
    the State of Texas. At approximately 1:30
    p.m. on May 2, 2013, the Defendant was
    arraigned on a Fugitive from Justice charge
    by Special District Judge Misak, which
    resulted from his refusal to waive
    extradition.
    At approximately 12:07 p.m. on May
    2, 2013, the search warrant (Vehicle
    Warrant #1) was issued under Oklahoma
    law and signed by Special Judge Misak for
    the search of the vehicle the Defendant
    was operating at the time of his arrest.
    T his w arrant w as exec uted at
    approximately 2:40 p.m.
    At no time was the Defendant
    44
    arraigned on the Texas charges by any
    judge in Oklahoma.
    On May 2, 2013, before 5:00 p.m.,
    the Defendant was assaulted by several
    inmates of the Garvin County Jail which
    necessitated the Defendant being
    transported back to the county hospital.
    While at the hospital the Defendant was
    continuously in police custody.
    On May 3, 2013, at approximately
    8:30 a.m. the detectives were back to the
    Garvin County Sheriff’s Office to Obtain
    videos from the inmate interviews
    concerning the assault on the Defendant by
    inmates of the Garvin County Jail. The
    detectives were informed that the
    Defendant wanted to waive his extradition
    rights and also wanted to speak with the
    detectives.
    (CR. I-292-94).
    The brutal and vicious assault perpetrated against Appellant by his fellow
    inmates was not coincidence. Detective Mack of the Bedford Police Department
    testified on cross-examination during the hearing on Appellant’s Motion to
    Suppress that Appellant’s presence in the cell with those particular inmates was
    contrived by the Sheriff of Garvin County. The record reflects:
    45
    Q.      And I want to - - I want to direct
    your attention to your report. I came
    across something interesting. It says you
    and Shelley and Ricks were there when he
    got arraigned and that the sheriff was
    there, and the sheriff - - I guess it’s Sheriff
    Mullett - - informed you that he was going
    to put Ricks in general population; - -
    A.     Yes, sir.
    *       *    *
    Q.     And there was a little
    additional information there, that he was
    going to put Ricks in general population
    obviously with the idea that if he were to
    say something about the offenses or would
    volunteer or get to talking about it, he was
    going to inform you about it?
    A.     Yes, sir.
    Q.   And that was coming from him
    independently; isn’t that right?
    A.     Yes.
    Q.     You didn’t ask him to do it?
    A.     Didn’t ask him to do anything.
    Q.   And, certainly, you know, it’s
    not a bad deal from your perspective if it
    did happen. If Ricks did go into the cell
    46
    and he said something you could use,
    that’s not something you would necessarily
    refuse, right?
    A.    Correct.
    Q.   And certainly you’re in no
    position to tell the sheriff up there in
    Oklahoma how to run his show; - -
    A.    Yes, sir.
    Q.    - - is that right?
    A.    That’s correct.
    Q.   All right. So not only does he
    get arraigned on his fugitive charge, the
    sheriff himself says, “Listen, I’m going to
    send this guy into general population, and
    we’ll see what happens,” essentially, right?
    A.    Yes, sir.
    *       *    *
    Q.    How long was it from the time
    y’all left the sheriff in the courtroom with
    Mr. Ricks was it before you got the phone
    call that there was a fight out there in the
    jail?
    A.    I don’t - - I don’t know what
    time we received a - - the telephone call - -
    47
    Q.    Uh-huh.
    A.     - - informing us of the assault.
    I know that the arraignment was at 1:30
    p.m. and that we had the search warrant
    for the vehicle executed at 2:40 p.m., and
    it was during that time that the search
    warrant was being executed that we
    received a telephone call. So - -
    *      *   *
    Q.   How soon after the fight did
    you see him?
    A.    Not knowing when the actual
    fight occurred, I saw him being led out from
    the jail to a transport unit to be taken to
    the hospital.
    Q.    How did he look to you
    physically?
    A.    Beat up.
    *      *   *
    Q.    So the injuries you were able to
    see were what?
    A.     The eye, blood coming from his
    mouth.
    *      *   *
    48
    Q.     All right. He’s on his way to the
    hospital at that point, I’m assuming, and
    when he gets back from the hospital, do
    y’all get a call that he wants to talk to y’all?
    A.     I believe it was the next day.
    *     *    *
    Q.     Okay.
    A.     We got the call that he wanted
    to speak with us and that he was willing to
    waive his rights.
    (RR. VI-216-20).
    B. Federal Constitutional Law
    Once the adversarial judicial process has been initiated, the Sixth
    Amendment to the United States Constitution guarantees a defendant the right
    to have counsel present at all “critical” stages of the criminal proceedings.
    United States v Wade, 
    388 U.S. 218
    , 227-228 (1967); Powell v Alabama, 
    287 U.S. 45
    , 57 (1932). Interrogation by the State is one such stage. Massiah v
    United States, 
    377 U.S. 201
    , 204-05(1964). See also, United States v Henry,
    
    447 U.S. 264
    274 (1980). This right to counsel may be waived by a defendant,
    so long as relinquishment is voluntary, knowing, and intelligent. Montejo v
    49
    Louisiana, 
    556 U.S. 778
    (2009) (citations omitted). Police may not threaten,
    trick, or cajole an accused into waiving his constitutional rights. Nash v State,
    
    477 S.W.2d 557
    , 563 (Tex. Crim. App.) cert. denied, 
    409 U.S. 887
    (1972).
    Separate and distinct from the Sixth Amendment right to counsel is the
    Fifth Amendment right to have counsel present at any custodial interrogation.
    An individual held for interrogation must be clearly informed that he has the
    right to consult with a lawyer and to have the lawyer with him during
    interrogation. Miranda v Arizona, 
    384 U.S. 436
    , 471 (1966).            The Fifth
    Amendment right to counsel during police interrogation is triggered by the
    Miranda warnings that police are lawfully required to give an individual before
    beginning any custodial questioning. Pecina v State, 
    361 S.W.3d 68
    (Tex. Crim.
    App. 2012). To invoke this right, the defendant must unambiguously request
    counsel. Davis v United States, 
    512 U.S. 452
    , 459 (1994). Invocation of the
    Miranda right to counsel “requires, at a minimum, some statement that can
    reasonably be construed to be an expression of a desire for the assistance of an
    attorney.” 
    Id. (quoting McNeil
    v Wisconsin, 
    501 U.S. 171
    , 178 (1991)).
    Under Miranda, if the individual states that he wants an attorney, then the
    interrogation must cease until an attorney is 
    present. 384 U.S. at 474
    . At that
    50
    time, the individual must have an opportunity to confer with the attorney and to
    have him present during any subsequent questioning. 
    Id. at 474.
                 If the
    individual can not obtain an attorney, and he indicates that he wants one before
    speaking to police, then they must respect his decision to remain silent. 
    Id. at 474.
    If the questioning continues without the presence of an attorney and a
    statement is taken, then the State will bear “a heavy burden...to demonstrate
    that the defendant knowingly and intelligently waived his privilege against self-
    incrimination and his right to retained or appointed counsel.” 
    Id. at 475.
    When
    an accused has invoked his right to have counsel present during custodial
    interrogation, a valid waiver of that right can not be established by showing only
    that he responded to further police initiated custodial interrogation, even if he
    has been advised of his rights. Edwards v Arizona, 
    451 U.S. 477
    , 484 (1981).
    A waiver of the right to counsel that follows an “unequivocal election of the right”
    is also invalid. Montejo v Louisiana at 797 (quoting Texas v Cobb, 
    532 U.S. 162
    ,
    176 (2001) (Kennedy, J., concurring)).        And, if both the Fifth and Sixth
    Amendment right to counsel had accrued, then a valid waiver of counsel rights
    “should not be inferred from the mere response by the accused to overt or more
    subtle forms of interrogation - - or other efforts to elicit incriminating
    51
    information.” Edwards v Arizona at 484 n. 8. An accused who has expressed his
    desire to deal with the police only through counsel is not subject to further
    interrogation by the authorities until counsel has been made available to him,
    unless the accused himself initiates further communication, exchanges or
    conversations with the police. 
    Id. at 484-85.
    Once an accused, subjected to custodial interrogation, has requested
    counsel or indicated a desire to consult counsel, the law enforcement authorities
    may not threaten, trick, or cajole an accused into a waiver of his constitutional
    rights in order to be able to continue the interrogation. Nash v State at 563.
    C. Texas Constitutional and Statutory Law
    “In all criminal prosecutions the accused...shall not be compelled to give
    evidence against himself and shall have the right of being heard by himself or
    counsel, or both...” Tex. Const. art. I, §10. In Hernandez v State, 
    726 S.W.2d 53
    ,
    56-57 (Tex. Crim. App. 1986) this Court held that our constitutional and
    statutory provisions do not create a standard in ineffective assistance cases that
    is more protective of a defendant’s rights than the standard put forward by the
    Supreme Court in Strickland v Washington, 
    466 U.S. 668
    (1984). A Court of
    Appeals has interpreted this to mean “that the Texas Constitution’s guarantee
    52
    of a right to counsel does not exceed the parallel guarantee under the Sixth and
    Fourteenth Amendments to the United States Constitution.” Duhart v State, 
    890 S.W.2d 187
    , 188 (Tex. App. - - Corpus Christi 1994, no pet.).
    Art. 15.17 (a) Tex. Crim. Proc. Code Ann. (Vernon 2009) requires that the
    person making the arrest or the person having custody of the person arrested to,
    “without unnecessary delay, but not later than 48 hours after the person is
    arrested, take the person arrested or have him taken before some magistrate
    of the county where the accused was arrested or, to provide more expeditiously
    to the person arrested the warnings described by this article, before a magistrate
    in any other county of this state.” The magistrate’s duties (that are relevant to
    the issues in the case at bar) are as follows:
    The magistrate shall inform in clear language the
    person arrested, either in person or through the
    electronic broadcast system, of the accusation against
    him and of any affidavit filed therewith, of his right to
    retain counsel, of his right to remain silent, of his right
    to have an attorney present during any interview with
    peace officers or attorneys representing the state, of his
    right to terminate the interview at any time, and of his
    right to have an examining trial. The magistrate shall
    also inform the person arrested of the person’s right to
    request the appointment of counsel if the person
    cannot afford counsel. The magistrate shall inform the
    person arrested of the procedures for requesting
    53
    appointment of counsel. . . .The magistrate shall ensure
    that reasonable assistance in completing the necessary
    forms for requesting appointment of counsel is
    provided to the person at the same time. If the person
    arrested is indigent and requests appointment of
    counsel and if the magistrate is authorized under Article
    26.04 to appoint counsel for indigent defendants in the
    county, the magistrate shall appoint counsel in
    accordance with Article 1.051. If the magistrate is not
    authorized to appoint counsel, the magistrate shall
    without unnecessary delay, but not later than 24 hours
    after the person arrested requests appointment of
    counsel, transmit, or cause to be transmitted to the
    court or to the courts’ designee authorized under Article
    26.04 to appoint counsel in the county, the forms
    requesting the appointment of counsel. The magistrate
    shall also inform the person arrested that he is not
    required to make a statement and that any statement
    made by him may be used against him. The magistrate
    shall allow the person arrested reasonable time and
    opportunity to consult counsel and shall, after
    determining whether the person is currently on bail for
    a separate criminal offense, admit the person arrested
    to bail if allowed by law.
    Tex. Crim. Proc. Code Ann. art. 15.17 (a). These duties are mandatory. Tex. Op.
    Att’y Gen. GA-0993 (2013). Because the Texas Code of Criminal Procedure “is
    intended to embrace rules applicable to the prevention and prosecution of
    offenses against the laws of this State,” art. 1.03 Tex. Crim. Proc. Code Ann.
    (Vernon 1965), Appellant contends that the provisions of art. 15.17 should have
    54
    been followed by the arresting officers and magistrate in Oklahoma, since
    Appellant was arrested, and ultimately prosecuted, for offenses against the laws
    of this State.
    In the alternative, if the arresting officers and Judge Misak had fulfilled
    their duties under art. 15.17, then the trial court should have granted Appellant’s
    Motion to Suppress because Appellant’s Sixth Amendment right to counsel
    attached at the hearing. See, Pecina v State. (“The Sixth Amendment right to
    counsel is triggered by judicial arraignment or Article 15.17 magistration.”)
    “No evidence obtained by an officer or other person in violation of any
    provisions of the Constitution or laws of the State of Texas, or of the Constitution
    or laws of the United States of America, shall be admitted in evidence against
    the accused on the trial of any criminal case.” Tex. Crim. Proc. Code Ann. art.
    38.23 (a) (Vernon 1987). The trial court erred in denying Appellant’s Motion to
    Suppress and admitting in evidence all of the items seized after his unlawful
    arrest and his unlawful denial of counsel. Further, any other evidence derived or
    obtained from the evidence collected in violation of Appellant’s constitutional
    rights should have been excluded as “fruit of the poisonous tree.” Wong Sun v
    United States at 488) (quoting Maguire, Evidence of Guilt 221 (1959)). It was
    55
    therefore error for the trial court to deny Appellant’s Motion to Suppress.
    A violation of art. 15.17 “does not rise to the status of a denial of due
    process.” Perry v Jones, 
    506 F.2d 778
    , 781 (5th Cir. 1975) (citations omitted).
    Therefore, for purposes of a harm analysis, Appellant will treat the harm caused
    by the erroneous denial of his Motion to Suppress as non constitutional error
    under Tex. R. App. Proc. 44.2 (b). Thus, the trial court’s erroneous denial of
    Appellant’s Motion to Suppress all evidence seized as a result of his unlawful
    denial of counsel must be disregarded unless a substantial right of Appellant
    was affected. “A substantial right is affected when the error had a substantial
    and injurious effect or influence in determining the jury’s verdict.” King v State,
    
    953 S.W.2d 266
    , 271 (Tex. Crim. App. 1997).
    D. Oklahoma Statutes
    The law requiring the appointment of counsel appears to be the same in
    the State of Oklahoma. In Wyatt v Wolf, 
    324 P.2d 548
    (Okla. Crim. App. 1958)
    the Oklahoma Court of Criminal Appeals stated:
    “We hold that the express provisions of the Constitution
    and the statutes and the clear implications thereof,
    especially 
    22 Ohio St. 1951
    §251, is that the accused must
    be advised of his right to aid of counsel when brought
    before the magistrate. If he desires aid of counsel and
    56
    is unable because of poverty to obtain counsel, it
    necessarily follows that the magistrate should appoint
    counsel for him. Certainly such practice is within the
    spirit of the law. Otherwise, the advice in such cases, as
    to the right, is a vain and meaningless gesture without
    affecting the provisions of the right. In other words,
    how can we assert the right in one instance and deny it
    in another? We are of the considered opinion that the
    clear intent of the foregoing provisions and
    interpretations thereof is that the accused is entitled to
    representation of counsel if he so desires; either of his
    own choice, if able to provide the same, and if not by
    appointment of the magistrate. Equal protection of the
    law, where indigent defendants are involved, requires
    such procedure be invoked in order that the accused’s
    substantial rights may be protected. As of this feature
    of the within petition for writ of mandamus, the
    examining magistrate is ordered to appoint counsel for
    the accused.”
    Wyatt v Wolf at 551.
    See also, Brown v State, 
    266 P. 476
    , 
    39 Okla. Crim. 406
    (Okla. Crim. App.
    1928); Tipton v State, 
    235 P. 259
    , 
    30 Okla. Crim. 56
    (Okla. Crim. App. 1925);
    Polk v State, 
    224 P. 194
    , 
    26 Okla. Crim. 283
    (Okla. Crim. App. 1924).
    E. The Application of the Facts to the Law
    In the case at bar, Appellant was arrested by the Oklahoma State Troopers.
    He was taken before the Oklahoma magistrate, Judge Trisha Misak, to be
    arraigned. Judge Misak arranged him on his pending fugitive case. For whatever
    57
    reason she refused to appoint him a lawyer. In her court minutes she wrote that
    she would have Appellant brought back to court on May 24, 2013, twenty-two
    days later -- clearly longer than the Oklahoma statute permits -- to determine
    whether or not she would appoint counsel. (RR. XLII-SPTX4). Not only was this
    a violation of the Oklahoma statute; it was clearly a violation of both the Federal
    and Texas constitutions as well as Texas state statutes. Subsequently Sheriff
    Mullett, instead of isolating Appellant in a single cell, threw him into a cell with
    “wolves” who eventually beat him so severely that he required medical
    treatment at the local hospital. Only after his aggravated assault did Appellant
    subsequently provide a videotaped statement composed of various incriminating
    statements but he also waived the extradition proceeding and agreed to go back
    to Texas. Appellant contends that his decision to waive extradition stemmed
    from Judge Misak’s refusal to follow the Federal and State Constitutionals as
    well as the Oklahoma statutes. All evidence seized by law enforcement after
    Appellant’s denial of counsel should have been suppressed.
    Appellant respectfully requests that this Court sustain his fifth, sixth, and
    seventh points of error, reverse the trial court’s Judgment, and remand his case
    back to the trial court with instructions that he be granted a new trial.
    58
    POINT OF ERROR EIGHT
    THE TRIAL COURT COMMITTED
    REVERSIBLE ERROR IN ALLOWING THE
    STATE TO INTRODUCE SX225 AN AUTOPSY
    PHOTOGRAPH OF JAMES GONZALEZ’S
    BRAIN BECAUSE THE PREJUDICIAL EFFECT
    GREATLY OUTWEIGHED ANY PROBATIVE
    VALUE. (RR. XXXII-113-16; XLIV-SX#225).
    POINT OF ERROR NINE
    THE TRIAL COURT COMMITTED
    REVERSIBLE ERROR IN ALLOWING THE
    STATE TO INTRODUCE SX226 AN AUTOPSY
    PHOTOGRAPH OF JAMES GONZALEZ’S
    BRAIN BECAUSE THE PREJUDICIAL EFFECT
    GREATLY OUTWEIGHED ANY PROBATIVE
    VALUE. (RR. XXXII-113-16; XLIV-SX#226).
    ARGUMENT AND AUTHORITIES
    Appellant made the following objection to State’s Exhibits #225 and #226
    outside the presence of the jury. The record reflects:
    [PROSECUTOR] Okay, Your Honor.
    These photographs are the photographs of
    [James’] break in the skull, and there will
    be testimony from Dr. Greenberg that one
    of the stab wounds entered his skull and
    entered the brain. Okay?
    And these photographs are to clarify
    observations and conclusions about the
    59
    injuries, because they will show how they
    were received. They’re more probative
    than they are prejudicial. Just because
    they’re internal organs does not mean
    they’re inadmissible.
    [DEFENSE COUNSEL] J u d g e , I
    understand the State’s argument, but the
    difficulty we have is that the evidence
    presented so far, and the crime scene
    evidence presented so far, is very
    descriptive and very graphic, which we
    have not objected to.
    The description - - the doctor is a
    learned professional in forensic science.
    She can explain through detail, through
    testimony, without the jury being subjected
    to this highly prejudicial photograph of
    someone’s brain being exposed, as well as
    someone’s interior - - the interior part of
    their skull being exposed. All of that can be
    described without the exhibit.
    And it is our position that 225 and
    226 are highly prejudicial and would result
    in the jury making a decision on our client’s
    guilt or innocence based on a horrific
    exhibit that has already been submitted to
    the jury and not objected to by Defense.
    [DEFENSE COUNSEL] A n d h e r
    testimony - - the relation of these two
    exhibits is not going to be disputed in any
    form or fashion.
    60
    THE COURT:         I’m    going to
    overrule your objection, and I’m admitting
    188 through 226.
    (RR. XXXII-114-16).
    “Although relevant, evidence may be excluded if its probative value is
    substantially outweighed by the danger of unfair prejudice, confusion of the
    issues, or misleading the jury, or by considerations of undue delay, or needless
    presentation of cumulative evidence.” Tex. R. Evid. 403. When a photograph is
    offered in evidence, “Rule 403 requires that the photograph have some
    probative value and that its probative value not be substantially outweighed by
    its inflammatory nature.” Long v State, 
    823 S.W.2d 259
    , 272 (Tex. Crim. App.
    1991), cert. denied, 
    505 U.S. 1224
    (1992). Once a defendant objects to
    photographic evidence on the basis of Rule 403, the trial court must weigh its
    probative value against its potential for unfair prejudice. Narvaiz v State, 
    840 S.W.2d 415
    , 429 (Tex. Crim. App. 1992) cert. denied, 
    507 U.S. 975
    (1993).
    When undertaking a Rule 403 analysis, a trial court must balance (1) the
    inherent probative force of the proffered item of evidence along with (2) the
    proponent’s need for that evidence against (3) any tendency of the evidence to
    suggest decision on an improper basis, (4) any tendency of the evidence to
    61
    confuse or distract the jury from the main issues, (5) any tendency of the
    evidence to be given undue weight by a jury that has not been equipped to
    evaluate the probative force of the evidence, and (6) the likelihood that
    presentation of the evidence will consume an inordinate amount of time or
    merely repeat evidence already admitted. Gigliobianco v State, 
    210 S.W.3d 637
    , 641-42 (Tex. Crim. App. 2006). In reviewing a trial court’s decision to
    admit or exclude evidence for abuse of discretion, an appellate court must (1)
    decide whether the trial judge did in fact conduct the required balancing test and
    “did not simply rule arbitrarily or capriciously,” and (2) “measure the trial court’s
    ruling against the relevant criteria by which a Rule 403 decision is to be made.”
    Montgomery v State, 
    810 S.W.2d 372
    , 392 (Tex. Crim. App. 1990). Under this
    standard, “judicial rulings will be affirmed if the trial court follows the
    appropriate analysis and balancing factors.” Montgomery at 380.
    In the case at bar, the trial court did not conduct the requisite balancing
    test on the record. However, “a judge is presumed to engage in the required
    balancing test once Rule 403 is invoked,” and a trial court is not required to
    state on the record that it had conducted the Rule 403 balancing test,” Williams
    v State, 958. S.W. 2d 186, 195-96 (Tex. Crim. App. 1997). Therefore, Appellant
    62
    will analyze the trial court’s ruling against the relevant criteria by which a Rule
    403 decision is to be made. An abuse of discretion arises only when the
    probative value of the photograph is small and its inflammatory potential is
    great. Ramirez v State, 
    815 S.W.2d 636
    (Tex. Crim. App. 1991) (citing Burdine
    v State, 
    719 S.W.2d 309
    , 316 (Tex. Crim. App. 1986)).
    Evidence is unfairly prejudicial when it has “an undue tendency to suggest
    that a decision be made on an improper basis.” Montgomery at 389. A
    photograph should be excluded if it is so horrifying or appalling that a juror of
    normal sensitivity would necessarily encounter difficulty rationally deciding the
    critical issues of the case after viewing it. Fuller v State, 
    829 S.W.2d 191
    , 206
    (Tex. Crim. App. 1992) cert. denied, 
    508 U.S. 941
    (1993). As a general rule,
    “post-autopsy photographs are inadmissible because they depict primarily what
    was done by the doctor who performed the surgery, rather than what was done
    by the appellant.” O’Neill v State, 
    681 S.W.2d 663
    , 671 (Tex. App. - - Houston
    [1st Dist.] 1984, pet. ref’d). Thus, in Terry v State, 
    491 S.W.2d 161
    , (Tex. Crim.
    App. 1973) the trial court abused its discretion by not sustaining the appellant’s
    objections to pictures that showed “massive mutilation of the subject matter
    caused by the surgery in performing the autopsy.” Terry at 164.
    63
    This case is analogous to Corbett v State, 
    764 N.E.2d 622
    (Ind. 2002), a
    murder and robbery case in Indiana in which the trial court admitted multiple
    photographs taken immediately before, during, and after the autopsy performed
    on the decedent. Three of the exhibits depicted the victim’s brain removed from
    his skull. 
    Id. at 628.
    On appeal, the Supreme Court of Indiana held that the
    photographs were cumulative and that their prejudicial effect outweighed their
    probative value; thus, it was error to allow them to be admitted. Id.18 Similarly,
    in Ritchie v State, 
    632 P.2d 1244
    , 1246 (Okla. Crim. App. 1981), another
    murder case, photos that showed the brain and skullcap of the deceased child
    18
    Ind. Rule Evid. 403 provides: “The court may exclude relevant evidence
    if its probative value is substantially outweighed by a danger of one or more of
    the following: unfair prejudice, confusing the issues, misleading the jury, undue
    delay, or needlessly presenting cumulative evidence.” While this language is not
    identical to Tex. R. Evid. 403, the Corbett court followed the same standard of
    review for admission of photographic evidence that Texas courts do:
    Because the admission and exclusion of evidence falls within the sound
    discretion of the trial court, this Court reviews the admission of photographic
    evidence only for abuse of discretion. Byers v State, 
    709 N.E.2d 1024
    , 1028
    (Ind. 1999); Amburgey v State, 
    696 N.E.2d 44
    , 45 (Ind. 1998). Relevant
    evidence, including photographs, may be excluded only if its probative value is
    substantially outweighed by the danger of unfair prejudice. Ind. Evidence Rule
    403; 
    Byers, 709 N.E.2d at 1028
    . “Even gory and revolting photographs may be
    admissible as long as they are relevant to some material issue or show scenes
    that a witness could describe orally.” Amburgey, 
    696 N.E. 2nd
    at 45; see also
    
    Byers, 709 N.E.2d at 1028
    . Photographs, even those gruesome in nature, are
    admissible if they act as interpretative aids for the jury and have strong
    probative value. Spencer v State, 
    703 N.E.2d 1053
    , 1057 (Ind. 1999); Robinson
    v State, 
    693 N.E.2d 548
    , 553 (Ind. 1998).
    64
    were held inadmissible by the Court of Criminal Appeals in Oklahoma. See also,
    Reese v State, 
    33 S.W.3d 238
    (Tex. Crim. App. 2000) (The appellant’s death
    sentence was reversed based upon the prejudice of a single photograph).
    Considering all of the relevant criteria, the record in this case reveals a risk
    that the probative value of the evidence is substantially outweighed by unfair
    prejudice, confusion of the issues, and/or misleading the jury. Both of these
    pictures of James’ brain were gruesome and unnecessary to the jury’s
    understanding of his injuries. The medical examiner had testified about them;
    the pictures were redundant and grossly prejudicial. This Court should therefore
    conclude that the trial court acted irrationally in failing to exclude both exhibits,
    and thus abused its discretion. 
    Montgomery, 810 S.W.2d at 392-93
    .
    Appellant has 
    shown supra
    that it was error for the trial court to overrule
    Appellant’s objections and admit the two photographs of James Gonzalez’s brain
    into evidence. Because the error was non-constitutional, however, a reversal of
    the Judgment against Appellant is justified if a substantial right of Appellant’s
    was affected. See, Tex. R. App. Proc. 44.2 (b). “A substantial right is affected
    when the error had a substantial and injurious effect or influence in determining
    the jury’s verdict.” King v State at 271; (citing Kotteakos v United States, 328
    
    65 U.S. 750
    , 776 (1946))
    A court may consider many factors in determining whether the probative
    value of the evidence is substantially outweighed by the danger of unfair
    prejudice, including: the number of exhibits offered, their gruesomeness, their
    detail, their size, whether they are in color or black and white, whether they are
    close-up, and whether the body depicted is clothed or naked. Wyatt v State, 
    23 S.W.3d 18
    , 29 (Tex. Crim. App. 2000) (citing Long v State at 272). “A court,
    however, should not be limited by this list. The availability of other means of
    proof and the circumstances unique to each individual case should also be
    considered.” 
    Id. As stated
    above, the pictures were in color. They were
    gruesome. Their admission was unnecessary to show the child’s injuries which
    had been detailed by the medical examiner. Appellant asserts that the State
    offered them solely to inflame the jury against him and render it more likely that
    he would ultimately be assessed a death sentence. Clearly the admission of two
    such prejudicial photographs of the brain of an eight-year-old child substantially
    influenced the jury’s verdict of guilt and sentence of death. As a result, Appellant
    requests that this Court sustain points of error eight and nine, reverse the trial
    court’s Judgment, and remand his case to the trial court with instructions that
    66
    he receive a new trial.
    67
    POINT OF ERROR TEN
    THE TRIAL COURT ERRED IN OVERRULING
    APPELLANT’S MOTION TO DECLARE THE
    “10-12” RULE UNCONSTITUTIONAL ON THE
    GROUNDS THAT IT CREATES AN
    IMPERMISSIBLE RISK OF ARBITRARY
    IMPOSITION OF THE DEATH PENALTY. (CR.
    I-187-217; RR. V-79-80).
    Appellant argued in his motion that the “10-12 Rule” unconstitutionally
    prevents a single juror from giving effect to his belief that a mitigating factor
    militates against the imposition of the death penalty. Article 37.071, § 2 (d) (2)
    requires the trial court to charge the jury that it may not answer any issue
    submitted under subsection (b) “yes” unless it agrees unanimously, and it may
    not answer any issue “no” unless ten or more jurors agree. In the event the jury
    is unable to answer either the future danger or parties question, art. 37.071, §
    2 (g), the court shall sentence the defendant to confinement for life
    imprisonment without the possibility of parole.
    In capital cases, the Supreme Court is committed to ensuring that there
    is sufficient process to “guarantee, as much as is humanly possible, that the
    sentence was not imposed out of whim ... or mistake. Eddings v Oklahoma, 
    455 U.S. 104
    , 118 (1982) (O’Connor, J., concurring) (overruled on other grounds).
    68
    The Texas death penalty statute affirmatively creates confusion in the minds of
    the jurors. Jurors are first told that the jury as a whole “shall” answer “yes” or
    “no” to each issue presented; they are subsequently told that ten or more jurors
    must be in agreement to give one set of answers and that they must be
    unanimous in order to give another. This necessarily raises the question of what
    happens in the event that the jury, despite being instructed that it must answer
    each question, is unable to get the minimum number of votes required to give
    either answer. The statute clearly provides that in the event of a non-answer, the
    defendant is to receive that which is substantively identical to that which he
    would have received had there been a verdict in favor of life, and thus the law
    itself exhibits no confusion with regard to the situation presented. However, not
    only does the statute fail to do all that is humanly possible to endure that
    decisions regarding life and death are not made as a result of that manufactured
    confusion -- it actively prohibits any clarification of the confusion by preventing
    jurors from being informed at any point of the effect of a non-answer.
    Death penalty cases are required to be subjected to greater constitutional
    protections than those applied to non-death penalty cases (“death is different”).
    Eddings v Oklahoma, 
    455 U.S. 104
    (1982); Lockett v Ohio, 
    438 U.S. 586
    69
    (1978); Simmons v South Carolina, 
    512 U.S. 154
    (1994). See also, Miller v
    Alabama, 567 U.S.       , 
    132 S. Ct. 2455
    (2012); Graham v Florida, 
    560 U.S. 48
    (2010); Kennedy v Louisiana, 
    554 U.S. 407
    (2008); Baze v Rees, 
    553 U.S. 35
    (2008). See also Jimenez v State, 
    32 S.W.2d 233
    (Tex. Crim. App. 2000);
    Ex parte Tucker, 
    973 S.W.2d 950
    (Tex. Crim. App. 1998); Morris v State, 
    940 S.W.2d 610
    (Tex. Crim. App. 1996); Anderson v State, 
    932 S.W.3d 502
    (Tex.
    Crim. App. 1996).
    The result of misinforming jurors and forcing them to deliberate without
    knowledge of what happens in the event of a non-answer is that they are
    presented with a false dilemma. Jurors are given general instructions that they
    must answer either “yes” or “no” to the issues before them, and specific
    instructions that define the minimum number of votes required to give each of
    these a specific answer. Because they are told that a death sentence follows
    from one set of answers, and a life sentence follows from another, a reasonable
    juror might conclude that the only way to get either of these punishments is to
    answer the questions posed to them. See, California v Brown, 
    479 U.S. 538
    ,
    541 (1987) (quoting Francis v Franklin, 
    471 U.S. 316
    (1985) (holding that the
    constitutional sufficiency of capital sentencing instructions is determined by
    70
    “what a reasonable juror could have understood the charge as meaning).” This
    leaves jurors free to speculate as to what would occur should they be unable to
    provide an answer to the issues. While it is possible that jurors might correctly
    guess that the failure to agree will result in a life sentence, it is perhaps more
    likely that they will conclude that a non-answer will lead to a lesser sentence, a
    costly retrial or resentencing proceeding, or absolute freedom for the defendant.
    Given that each of the jurors has already found the defendant guilty of a capital
    offense, none of those options would look desirable to a juror who honestly
    believes that a life sentence is warranted. Jurors are left to deliberate with the
    false belief that if they are unable to gain unanimity for a death sentence or ten
    or more votes for a life sentence, an altogether third option will result. In
    Simmons v South Carolina at 171, the Supreme Court prohibited just this sort
    of unfairness, holding that “[t]he State may not create a false dilemma by
    advancing    generalized   arguments      regarding   the   defendant’s future
    dangerousness while, at the same time, preventing the jury from learning that
    the defendant never will be released on parole.”
    In Scales v State, 
    380 S.W.3d 780
    (Tex. Crim. App. 2012), a non-death
    penalty case, the Court dealt with a request from the jury foreman that a juror,
    71
    who allegedly would not participate in the deliberations, be removed. The trial
    court, after hearing from the foreman, indicated intent to remove the juror and
    seat an alternate. The defendant requested that the trial court question the juror
    but the court refused. Instead, the court questioned the foreman again and,
    after finding him credible, removed the juror of which complaint was made and
    replaced her with an alternate.
    The Court of Appeals reversed and remanded. Scales v State, No. 01-08-
    0932-CR (Tex. App. - - Houston [1st Dist.] December 20, 2010) (not designated
    for publication), slip op. at 7. After the State filed a petition for discretionary
    review, the Court of Appeals withdrew its original opinion and, pursuant to Rule
    50, Tex. R. App. Proc., issued another opinion. The second opinion reached the
    same result as the first. Scales v State, No. 01-08-0932-CR (Tex. App. - -
    Houston [1st Dist.] April 14, 2011) (not designated for publication). The Court
    granted the State’s petition for discretionary review from the second opinion.
    The trial court in Scales had found the juror to be disabled, necessitating
    a study of the requirements of art. 36.29 Tex. Crim. Proc. Code Ann. (Vernon
    2009) relating to a disabled juror. According to the foreman’s testimony before
    the trial court, the juror in question had taken into account the facts and law and
    72
    had made up her mind, refusing to talk about “her side” of the case or take into
    account others’ views. The Court characterized the evidence relating to the jury’s
    deliberations as:
    The foreman twice testified as to what “we” did in a
    context that indicates that “we” is the eleven jurors
    other than Collins. The foreman’s statement that both
    reasons named by the trial court applied, combined
    with his statement that “[s]he will not talk about the
    facts of the case as we perceived during testimony,” at
    least tends to show that Collins’s perceptions about the
    evidence were not shared by the other eleven jurors,
    that she did not agree with the other eleven that the
    contents of the read backs were “fact,” that she had
    made a decision about what the evidence proved, and
    that her refusal to deliberate was actually a refusal to
    change her mind. That possibility was not explored
    before the trial court removed Collins from the jury. We
    find that the trial court had insufficient information
    from which to determine that Collins was not able to
    perform her duties as a juror. The trial court erred when
    it replaced Collins with an alternate without
    ascertaining Collins’s reasons for “not deliberating.”
    Scales, slip op. at 9-10.
    [footnote omitted].
    The Court recognized that the trial court’s action in replacing the holdout
    juror affected the defendant’s substantial right to a unanimous jury and thus, the
    error had a substantial and injurious effect or influence in determining the jury’s
    73
    verdict, and was, therefore, reversible error. Scales, slip op. at 10.       This
    recognition, that error committed during jury deliberations, including pressures
    put on those members of the jury who are holding out against an even
    overwhelming majority, implicates substantial and constitutionally based rights,
    and can be error, can not be ignored in the instant case.
    The Court wrote, “We find that the trial court had insufficient information
    from which to determine that Collins was not able to perform her duties as a
    juror.” In doing so, the Court set a standard for trial courts to follow when
    dealing with potential interference with individual jurors by other members of
    the jury. The standard, informed and required by the Constitution, applies in non-
    death penalty cases, and is required to assure the defendant’s constitutional
    rights were protected.
    That the protections accorded in the defendant in Scales must be
    accorded to those facing the death penalty, as a matter of constitutional
    imperative, can not be seriously argued. The procedure found to be required by
    the substantial rights implicated in Scales must be considered by this Court in
    addressing this claim.
    The Court’s opinion in 
    Scales, supra
    , demonstrates that death penalty
    74
    cases in Texas are treated in the exact opposite manner, with the “10-12 Rule”
    operating to deny death penalty defendants the review mandated by Scales in
    non-death penalty cases. As such, the “10-12 Rule” violates the Constitution of
    the United States, as well as the Supreme Court’s “death is different” directives.
    Consequently, the “10-12 Rule” can not stand.
    Death penalty cases are required to be subjected to greater constitutional
    protections than those applied to non-death penalty cases (“death is different).”
    
    Eddings, supra
    ; 
    Lockett, supra
    ; 
    Simmons, supra
    . It is clear now that, as it
    pertains to jury deliberations and instructions, Texas defendants charged with
    capital murder are afforded lesser protections than are required by the
    Constitution of the United States and applied to non-death penalty defendants.
    75
    POINT OF ERROR ELEVEN
    ARTICLE 37.071 OF THE TEXAS CODE OF
    CRIMINAL          PROCEDURE         IS
    UNCONSTITUTIONAL BECAUSE IT FAILS TO
    PLACE THE BURDEN OF PROOF ON THE
    STATE REGARDING AGGRAVATING
    EVIDENCE. (CR. I-142-46; RR. V-68).
    ARGUMENT AND AUTHORITIES
    The trial court overruled Appellant’s Motion to Preclude the Death Penalty
    as a Sentencing Option and to declare art. 37.071 Tex. Crim. Proc. Code Ann.
    (Vernon 2009) unconstitutional for shifting the burden of proof on mitigation to
    Appellant. (RR. V-68). The trial court also overruled Appellant’s Motion to
    Declare Article 37.071 Unconstitutional because it places the mitigation burden
    of proof on the defendant. Tex. Crim. Proc. Code art. 37.071 §2 (e) and (f)
    require a jury which has convicted a defendant of capital murder, in a case in
    which the State is seeking the death penalty, to be charged as follows:
    (e) (1) The court shall instruct the jury that if the
    jury returns an affirmative finding to each issue
    submitted under Subsection 9b) of this article, it shall
    answer the following issue: Whether, taking into
    consideration all of the evidence, including the
    circumstances of the offense, the defendant’s character
    and background, and the personal moral culpability of
    the defendant, thee is a sufficient mitigating
    76
    circumstance or circumstances to warrant that a
    sentence of life imprisonment rather than a death
    sentence be imposed. . ..
    (f) The court shall charge the jury that in
    answering the issue submitted under Subsection (e) of
    this article, the jury:
    (1) shall answer the issue “yes” or “no;”
    (2) may not answer the issue “no” unless it
    agrees unanimously and may not answer the issue
    “yes” unless 10 or more jurors agree;
    (3) need not agree on what particular
    evidence supports an affirmative finding on the issue;
    and
    (4) shall consider mitigating evidence to be
    evidence that a juror might regard as reducing the
    defendant’s moral blameworthiness.
    This statute is unconstitutional because it impermissibly shifts the burden
    of proof on mitigation to the defendant. The statute requires the jury to consider,
    along with mitigating evidence, the “moral culpability of the defendant,” having
    just found the defendant guilty of the offense, beyond a reasonable doubt. The
    statute then demands that the defense produce “sufficient” mitigation (while
    considering this same “moral culpability)” to warrant a sentence of life
    imprisonment. The mitigating evidence must be “sufficient” to reduce the
    defendant’s moral culpability or blameworthiness as already established in the
    jurors’ minds. In death penalty deliberations, “moral culpability” is not evidence;
    77
    it is a finding that the jury has already made. The statute places an unfair,
    undue, and unconstitutional emphasis on that finding. The defendant, if he is to
    save his own life, must offer evidence that is somehow greater than the finding
    of moral culpability beyond a reasonable doubt.
    Aside from shifting the burden of proof to the defendant, the statute
    provides no other guidance to the jury that is called upon to make this life and
    death decision. As a result, the death penalty is imposed in a wanton haphazard
    manner in violation of the defendant’s rights to due process and protection from
    cruel and unusual punishment.
    This impermissible shift of the burden to the defense is made more
    unconscionable by the language of Tex. Crim. Proc. Code art. 37.071 (2) (f)
    which provides that the jury shall not answer the mitigation issue “yes” (resulting
    in a life sentence) unless ten or more jurors agree. The defense, according to the
    instructions to the jury, must then offer “sufficient” mitigating evidence to not
    only overcome his “moral culpability” as already established in the eyes of the
    jury, but ten of those jurors must be convinced of the sufficiency of that
    evidence.
    Under the “due course of the law” provision of the Texas Constitution,
    78
    Article I §10, the citizens of this state are guaranteed that any punishment for
    an offense will be in accordance with the law. McFarlane v State, 
    254 S.W.2d 136
    (Tex. Crim. App. 1953). When the burden of proof is shifted to the
    defendant, the State’s burden has essentially been reduced. See e.g., Cobarrubio
    v State, 
    675 S.W.2d 749
    (Tex. Crim. App. 1983) overruled in part, Lawrence
    v State, 
    700 S.W. 2d
    208 (Tex. Crim. App. 1985), and Elliott v State, 
    858 S.W. 2d
    478, 487-88 (Tex. Crim. App. 1993). This punishment, based on a reduced
    burden, violates Texas law and Federal constitutional due process guarantees.
    Moreover, the effect of the statutory scheme is to require the defendant
    not merely to assume a burden of proving mitigation, but to demonstrate
    mitigation sufficient to outweigh the jury’s pre-existing affirmative finding,
    beyond reasonable doubt, of the aggravating factor of future dangerousness.
    Appellant is aware of the existence of adverse authority in this matter. See, e.g.,
    Threadgill v State, 
    146 S.W.3d 654
    , 671 (Tex. Crim. App. 2004); Kansas v
    Marsh, 
    548 U.S. 163
    (2006). (ruling that there is no violation where the
    defendant is required to prove mitigating circumstances sufficiently substantial
    to call for leniency), but nonetheless contend that these issues merit the Court’s
    consideration.
    79
    Pursuant to Tex. R. App. P. 44.2 (a), if there is constitutional error, the
    appellate court must reverse unless it determines beyond a reasonable doubt
    that the error did not contribute to the conviction and violates the Due Process
    Clause of the United State Constitution. U.S. Const. amend. XIV.
    80
    POINT OF ERROR TWELVE
    THE TRIAL COURT ERRED IN OVERRULING
    APPELLANT’S MOTION TO PRECLUDE THE
    IMPOSITION OF THE DEATH PENALTY ON
    GROUNDS THAT THE INDICTMENT FAILED
    T O CONTAIN ANY ALLEGATIONS
    REGARDING THE PUNISHMENT SPECIAL
    ISSUE. (CR. I-142-46; RR. V-68).
    ARGUMENT AND AUTHORITIES
    The trial court also overruled Appellant’s Motion to Declare Article 37.071
    Unconstitutional contending in part that the indictment was constitutionally
    defective because it did not allege aggravating factors or future dangerousness.
    (CR. I-142-46; RR. V-68).     Defense counsel requested that the State be
    precluded from seeking the death penalty against Appellant because the
    indictment did not allege the existence of the statutory special issues and the
    supporting facts necessary to impose a death sentence in violation of
    Appellant’s Sixth Amendment right to trial by jury. Ring v Arizona, 
    536 U.S. 584
    (2002) teaches that capital defendants, no less than noncapital defendants, are
    entitled under the Sixth Amendment to a jury determination of any fact on which
    a legislature has conditioned an increase in the defendant’s maximum
    punishment. Since the facts which were relied on in order to seek death against
    81
    Appellant were not contained in the indictment, and the statutory special issues,
    as stated elsewhere in this brief, were totally undefined for the jury, there can
    not in any way have been a meaningful jury verdict in this case in the sense that
    Ring requires.
    Appellant is aware of the existence of adverse authority from this Court
    addressing this issue. See, e.g., Perry v State, 
    158 S.W.3d 438
    (Tex. Crim. App.
    2004); Woods v State, 
    152 S.W.3d 121
    (Tex. Crim. App. 2004); Rayford v
    State, 
    125 S.W.3d 521
    , 533 (Tex. Crim. App. 2003), but nonetheless contends
    that these issues merit the Court’s reconsideration. Boyce v State, No. 04-04-
    00267-CR (Tex. App. - - San Antonio, July 13, 2005) 2005 Tex. App. LEXIS 5395
    (mem. op.) (Stone, J. concurring) (noting this Court had not yet addressed the
    Apprendi/BLAKELY requirement that every fact legally essential to punishment
    be charged in the indictment and proven to a jury).
    82
    POINT OF ERROR THIRTEEN
    THE TRIAL COURT ERRED IN OVERRULING
    APPELLANT’S OBJECTION TO THE
    APPLICATION OF TEXAS’ DEATH PENALTY
    SCHEME BECAUSE IT HAS BEEN
    ARBITRARILY IMPOSED IN VIOLATION OF
    T H E E IG H T H AN D F O U R T E E N T H
    AMENDMENTS TO THE UNITED STATES
    CONSTITUTION. (CR. I-147-50; RR. V-68-
    69).
    ARGUMENT AND AUTHORITIES
    The trial court overruled Appellant’s Motion to Preclude the Death Penalty
    as a Sentencing Option on Eighth Amendment grounds. (CR. I-147-50; RR. V-68-
    69). In view of the many different capital sentencing schemes that have been
    in operation in Texas in the post-Furman era, the Texas death penalty has been
    arbitrarily imposed and thus, is unconstitutional under the Eighth and
    Fourteenth Amendments.
    Of the many hundreds of persons sentenced to death in Texas since the
    “modern” capital sentencing statute was enacted, the vast majority were
    sentenced under jury instructions that simply tracked the unadorned “special
    issues” contained in the original version of art. 37.071 (b) Tex. Crim. Proc. Code
    Ann. (Vernon 2009). See generally, P.M. McClung, “Jury Charges for Texas
    83
    Criminal Practice” 75-78 (rev. ed. 1981). After the landmark decision in Penry
    v Lynaugh, 
    492 U.S. 302
    (1989) (overruled in part on other grounds), however,
    the consistency in Texas capital sentencing instructions quickly disappeared,
    both as a result of legislative action and unsupervised judicial improvising by the
    trial courts. See generally, Peggy M. Tobolowsky, “What Hath Penry Wrought?:
    Mitigating Circumstances and the Texas Death Penalty,” 19 AMER. J. CRIM. L.
    345 (1992). In 1991, the Texas Legislature enacted an amended, post-Penry
    version of art. 37.071, which modified the “special issue” format.
    Roughly speaking, the various types of Texas capital sentencing
    instructions in the post-Furman era can be broken down into seven different
    categories.
    1.      The unadorned “special issues” in the pre-1991 version of Article
    37.071.
    2.      The 1991 amended version of the statute.
    3.      The pre-1991 statute with an extra-statutory “Quinones”-type
    instructions.
    4.      The pre-1991 statute with an extra-stationary “Penry”-type “fourth
    special issue.”
    84
    5.    The pre-1991 statute with a “nullification’ instruction.
    6.    The pre-1991 statute in which “deliberately” is broadly defined.
    7.    The 1993 version of the state as applied in all crimes committed on
    or before August 30, 1991.
    In numerous cases, the United States Supreme Court has stated that it is
    “unwilling to say that there is any one right way for a State to set up its capital
    sentencing scheme.” Spaziano v Florida, 
    468 U.S. 447
    , 464 (1984) (citing
    cases). The Court has stated, however, that within a single state, there must be
    consistency in the treatment of capital defendants who are subject to the death
    penalty. 
    Id. at 460
    (“If a state has determined that death should be an available
    punishment for certain crimes, then it must administer that penalty in a way that
    can rationally distinguish between those individuals for whom death is an
    appropriate sanction and those for whom it is not).”
    The above discussion of the various sentencing schemes concurrently in
    operation in Texas, “a distinct system,” Gregg v Georgia, 
    428 U.S. 153
    , 195
    (1976), amply demonstrate that the present Texas death penalty system is
    being implemented in an “arbitrary” manner. At least even categories of
    similarly situated capital defendants have been treated disparately.
    85
    Fetterly v Paskett, 
    997 F.2d 1295
    (9th Cir. 1993), presents an analogous
    situation to the instant case. In that case, the Ninth Circuit condemned an
    instance of “Furman arbitrariness” within a single state’s capital sentencing
    system. The Court’s reasoning is cogent and should be applied to Texas’
    experience.
    The bottom line is that Texas courts and the state Legislature, without any
    discernible rational basis, have haphazardly turned Texas’ capital sentencing
    scheme into a patchwork quilt. Because similarly situated Texas capital
    defendants, including Appellant, have been unjustifiably sentenced to death
    under radically different sentencing schemes, this Court must vacate Appellant’s
    death sentence.
    The decision to which defendant is to be subjected to the death penalty
    prosecution varies from county to county in Texas. As a result, there are likely
    two hundred and fifty-four (254) different methods used to determine which
    cases shall be prosecuted as capital cases. Often the decision can turn on the
    county’s willingness to fund the defense, the race of status of the defendant, or
    the age, sex, race, or status of the victim in the community.
    The right to life is fundamental. Furman v Georgia, 
    408 U.S. 238
    , 259
    86
    (1972). The failure of the State to set forth uniform and specific standards to
    determine against whom a death sentence will be sought renders the penalty of
    death one that is wantonly and freakishly implied and that is prohibited by the
    Eighth Amendment to the United States Constitution.
    The need for non-arbitrary standards in the application of the death
    penalty outweighs any benefits of unbounded prosecutorial discretion.
    87
    POINT OF ERROR FOURTEEN
    THE TEXAS DEATH PENALTY STATUTE
    VIOLATES THE JURY TRIAL GUARANTEE OF
    THE FOURTEENTH AMENDMENT, AS
    INTERPRETED IN APPRENDI V NEW
    JERSEY, RING V ARIZONA, BLAKELY V
    WASHINGTON, UNITED STATES V BOOKER,
    AND CUNNINGHAM V CALIFORNIA BY
    FAILING TO PLACE UPON THE STATE THE
    BURDEN OF PROVING BEYOND A
    REASONABLE DOUBT A NEGATIVE ANSWER
    TO THE MITIGATION SPECIAL ISSUE. (CR. I-
    142-46; RR. V-68).
    ARGUMENT AND AUTHORITIES
    The Sixth Amendment guarantees a criminal defendant the right to a jury
    trial. U.S. Const. Amend. VI. Part and parcel to the right to jury trial guaranteed
    under the Sixth Amendment is the “companion right to have the jury verdict
    based on proof beyond a reasonable doubt.” Apprendi v New Jersey, 
    530 U.S. 466
    , 478 (2000). See also, United States v Booker, 
    543 U.S. 220
    , 
    125 S. Ct. 738
    , 748 (2005) (“It has been settled throughout our history that the
    Constitution protects every criminal defendant ‘against conviction except upon
    proof beyond a reasonable doubt of every fact necessary to constitute the crime
    with which he is charged.’”) (emphasis added) (quoting In re Winship, 
    397 U.S. 88
    358, 364 (1970)). Those rights are applicable in state court proceedings via the
    Due Process Clause of the Fourteenth Amendment. E.g., Duncan v Louisiana,
    
    391 U.S. 145
    , 155-56 (1968).
    The trial court denied Appellant’s pretrial motion that the jury be instructed
    that the burden of proof was on the State of Texas to show the absence of
    sufficient mitigating factors to warrant a death sentence. (RR. V-68). The United
    States Supreme Court has squarely held that “[i]f a State makes an increase in
    a defendant’s authorized punishment contingent on a finding of a fact, that fact
    -- no matter how the State labels it -- must be found by a jury beyond a
    reasonable doubt.” Ring v 
    Arizona, supra
    (citing 
    Apprendi, 530 U.S. at 482-83
    ).
    See also, United States v 
    Booker, 125 S. Ct. at 756
    (“Any fact other than a prior
    conviction which is necessary to support a sentence exceeding the maximum
    authorized by the facts established by a . . . jury verdict must be . . .proved to a
    jury beyond a reasonable doubt.” (emphasis added)). Texas’ death penalty
    statute does precisely what is proscribed by the Sixth Amendment as interpreted
    in Apprendi and Ring: it allows the State to obtain the death penalty based upon
    a factual finding -- lack of sufficient mitigation -- without the jury having to find
    89
    that fact beyond a reasonable doubt.19
    Under the Texas death penalty statute, the jury’s verdict of guilty, standing
    alone, without further factual findings from the jury, will result in a life sentence.
    Tex. Crim. Proc. Code Ann. art. 37.071 §2 (g) (Vernon 2009). Further, even the
    jury’s answers of “yes” to the first two special issues coupled with the guilty
    verdict, standing alone without a further factual finding on the mitigation issue,
    could not result in a death sentence. 
    Id. In this
    manner, lack of adequate
    mitigation becomes the “functional equivalent of an element of a greater
    offense.” 
    Ring, 122 S. Ct. at 2443
    ; 
    Apprendi, 530 U.S. at 494
    n. 19. Therefore,
    it must be proven by the State beyond a reasonable doubt. 
    Ring, 122 S. Ct. at 2439-40
    , 2443.
    In Blakely v Washington, 
    542 U.S. 296
    (2004), the defendant pleaded
    guilty and was convicted by a Washington trial court of the offense of second-
    degree kidnaping. 
    Blakely, 124 S. Ct. at 2534-35
    ). Under the applicable
    Washington statute, the statutory range of punishment was confinement not to
    exceed a term of years (120 months). 
    Id. at 2535.
    However, under Washington’s
    19
    This Court considered and rejected this exact argument in Jones v
    State, 
    119 S.W.3d 766
    , 791 (Tex. Crim. App. 2003) cert denied, 
    542 U.S. 905
    (2004), holding there that Apprendi is applicable to art. 37.071.
    90
    Sentencing Reform Act, the defendant’s offense carried a “standard range” of
    forty-nine to fifty-three months. 
    Id. The judge
    could only impose a sentence
    outside of that “standard range,” which was clearly within the “statutory range
    of punishment,” upon making certain findings of fact. 
    Id. After a
    hearing, the
    trial judge entered various findings of fact, determined that the defendant acted
    with “deliberate cruelty,” and imposed a sentence of 90 months -- within the
    “statutory range” of one hundred twenty months, but significantly longer than
    “the standard range” of forty-nine to fifty-three months. 
    Id. at 2535-36.
    The defendant appealed, claiming “that this sentencing procedure
    deprived him of his federal constitutional right to have a jury determine beyond
    a reasonable doubt all facts legally essential to his sentence.” 
    Id. at 2536
    (emphasis added). Writing for a majority of the Court, Justice Scalia held that:
    Our precedents make clear, however, that the “statutory
    maximum for Apprendi purposes is the maximum
    sentence a judge may impose solely on the basis of the
    facts reflected in the jury verdict or admitted by the
    defendant. . . In other words, the relevant “statutory
    maximum” is not the maximum sentence a judge may
    impose after finding additional facts, but the maximum
    he may impose without any additional findings. When
    a judge inflicts punishment that the jury’s verdict alone
    does not allow, the jury has not found all the facts
    “which the law makes essential to the punishment,” . .
    91
    . and the judge exceeds his proper authority.
    
    Id. (citations omitted
    (emphasis in original).
    In California v Cunningham, 
    127 S. Ct. 856
    (2007), the Supreme Court
    struck down California sentencing law, holding it violated the Sixth Amendment
    by allowing for an upper term sentence in a triad sentence system if the trial
    judge found aggravated circumstances.
    In Booker, the Supreme Court addressed the application of the reasoning
    of Blakely to federal sentencing practice under the United States Sentencing
    Guidelines. In finding that the Sentencing Guidelines scheme of sentence
    enhancements being found by a judge by a preponderance of the evidence is
    unconstitutional, this Court noted that,
    Our precedents, [as] we explained [in Blakely], make clear
    “that the ‘statutory maximum’ for Apprendi purposes is the
    maximum sentence a judge may impose solely on the basis
    of the facts reflected in the jury verdict or admitted by the
    defendant.”
    
    Booker, 25 S. Ct. at 749
    ( quoting 
    Blakely, 124 S. Ct. at 2537
    (emphasis in
    original)).
    Under the Texas death penalty scheme, Appellant could only receive a
    death sentence if all twelve jurors unanimously agreed that the answer to the
    92
    mitigation issue was “no.” See, Tex. Crim. Proc. Code Ann. art. 37.071 §2 (f) (2),
    2 (g) (Vernon 2010) (jury must unanimously agree to answer mitigation question
    “no” and death sentence can only be imposed if they do so.
    Because the negative answer to the mitigation issue was a fact finding
    that was required to impose a death sentence on Appellant, the lack of
    mitigating circumstances was a fact “which the law makes essential to the
    punishment. 
    Id. Accordingly, the
    Sixth and Fourteenth Amendments as
    interpreted in Apprendi, Ring, Blakely, and Cunningham require that the
    negative answer to the mitigation question be proven by the State beyond a
    reasonable doubt. E.g., 
    Blakely, 124 S. Ct. at 2542
    (every “element” the
    prosecutor can allege to enhance punishment is “an element that a defendant
    can threaten to contest at trial and make the prosecutor prove beyond a
    reasonable doubt);” 
    Blakely, 124 S. Ct. at 2543
    (“As Apprendi held, every
    defendant has the right to insist that the prosecutor prove to a jury all facts
    legally essential to the punishment.);” 
    Ring, 536 U.S. at 602
    (“If a State makes
    an increase in a defendant’s authorized punishment contingent on the finding
    of a fact, that fact -- no matter how the State labels it -- must be found by a jury
    beyond a reasonable doubt).”
    93
    Regardless of whether there is no burden on the mitigation issue or if the
    burden is placed on the defendant, the statute is unconstitutional because it fails
    to place the burden on the State of proving a negative answer to the issue
    beyond a reasonable doubt. E.g., 
    Blakely, 124 S. Ct. at 2542
    ; 
    Ring, 536 U.S. at 602
    -03).
    94
    POINT OF ERROR FIFTEEN
    APPELLANT’S RIGHTS UNDER THE
    CONFRONTATION CLAUSE OF THE SIXTH
    AND FOURTEENTH AMENDMENTS TO THE
    UNITED STATES CONSTITUTION WERE
    VIOLATED WHEN THE MOTHER OF
    DECEDENT, ROSIE GONZALEZ, TESTIFIED
    TO INFORMATION PERTAINING TO AN
    EXTRANEOUS OFFENSE DURING THE
    PUNISHMENT STAGE OF HIS TRIAL. (RR.
    XXXIV-25-28; XL-36-37, 66).
    POINT OF ERROR SIXTEEN
    APPELLANT’S RIGHTS UNDER THE
    CONFRONTATION CLAUSE OF ARTICLE 1,
    §10 OF THE TEXAS CONSTITUTION WERE
    VIOLATED WHEN THE MOTHER OF
    DECEDENT ROSIE GONZALEZ TESTIFIED TO
    INFORMATION PERTAINING TO AN
    EXTRANEOUS OFFENSE DURING THE
    PUNISHMENT STAGE OF HIS TRIAL. (RR.
    XXXIV-25-28; XL-36-37, 66).
    POINT OF ERROR SEVENTEEN
    REVERSIBLE ERROR OCCURRED WHEN
    THE MOTHER OF DECEDENT ROSIE
    GONZALEZ TESTIFIED TO INFORMATION
    PERTAINING TO AN EXTRANEOUS OFFENSE
    DURING THE PUNISHMENT STAGE OF HIS
    TRIAL IN VIOLATION OF THE HEARSAY
    RULE. (RR. XXXIV-25-28).
    95
    ARGUMENT AND AUTHORITIES
    A. The Facts
    Virginia Sommers,20 the mother of decedent Rosie Gonzalez, testified
    during the punishment phase of Appellant’s trial that Appellant had committed
    a prior assault against her daughter that had occurred approximately six months
    prior to the present offense. (RR. XXXIV-20-26).        After describing her
    observations of her daughter’s injuries as well as her actions while attempting
    to assist her daughter, Ms. Sommers related the following in pertinent part:
    Q.    Did she get an emergency
    protective order?
    A.     She did.
    Q.    And what did that emergency
    protective order do?
    A.     It kept Cedric Ricks from
    coming to her apartment or to school
    where the kids went to school, where I
    worked, or to our house. He couldn’t come
    around us.
    Q.    So was there - - was there - -
    was that an order issued by a court?
    20
    Virginia Sommers is a pseudonym.
    96
    A.   Yes.
    Q.    And basically ordering Cedric
    Ricks over here at the far end of the
    counsel table to stay away from your
    daughter?
    A.   Yes.
    Q.    Was she - - was he ordered to
    stay away from anyone else?
    A.     Yes. He was ordered to stay
    away from our house, our residence, the
    school, the boys, - -
    Q.    So he was ordered to stay away
    --
    A.     - - and her work.    Also, he
    couldn’t come to her work.
    Q.    So he was ordered to stay away
    from her, from [James], from [Damien],
    and from [Thomas]?
    A.   Yes.
    Q.    And was he ordered to stay
    away from [Rosie’s] apartment?
    A.   Yes.
    Q.    And her place of business?
    97
    A.   Everywhere. Everywhere she
    went, he could not go.
    Q.     The kids’ school?
    A.     Yes.
    Q.     And your house?
    A.     Yes.
    Q.       And that was in November of
    2012?
    A.     Yes.
    Q.    And I guess, eventually, they
    got - - they got back together; is that right?
    A.   Yes, because he kept bothering
    her. He kept talking to her, calling her and
    telling - -
    [DEFENSE COUNSEL]:          Excuse me.
    Excuse me.
    I’m going to object to what
    somebody else has told this lady. I
    understand it’s hard, but she’s been
    admonished by the Court. I’d ask that the -
    - first of all, I’d object that it’s
    nonresponsive and it’s hearsay and it’s
    confrontation.
    THE COURT:          Sustained.
    98
    [DEFENSE COUNSEL]: I’d ask the
    jury be instructed to disregard.
    THE COURT:        Jury will disregard
    the last statement of the witness.
    [DEFENSE COUNSEL]: A n d I ’ d
    respectfully ask for a mistrial.
    THE COURT:         Denied.
    (RR. XXXIV-26-28).
    B. The Law under the Federal and State Constitutions
    “In all criminal prosecutions, the accused shall enjoy the right to . . . be
    confronted with the witnesses against him.” U.S. Const. Amend. VI. This
    procedural guarantee applies to all state prosecutions. Pointer v Texas, 
    380 U.S. 400
    , 406 (1965). For the testimonial statements of a witness who does not
    appear at trial to be admissible in any criminal prosecution, the witness must be
    unavailable to testify, and the defendant must have had a prior opportunity to
    cross-examine the witness. Crawford v Washington, 
    541 U.S. 36
    , 68 (2004).
    Whether a particular out-of-court statement is testimonial or not is “a question
    of law.” Langham v State, 
    305 S.W.3d 568
    , 576 (Tex. Crim. App. 2010); De La
    Paz v State, 
    279 S.W.3d 336
    , 343 (Tex. Crim. App. 2009).
    99
    Article I, §10 of the Tex. Const. provides Texans with a similar protection
    to that afforded criminal defendants under the Sixth Amendment: “In all
    criminal prosecutions the accused shall. . .be confronted by the witnesses
    against him. . . .”     The Court of Criminal Appeals has interpreted this
    constitutional provision to mean “that the witnesses on the part of the state shall
    be personally present when the accused is on trial, or that they shall be
    examined in his presence and be subject to cross-examination by him.” Garcia
    v State, 
    210 S.W.2d 574
    , 578 (Tex. Crim. App. 1948); Kemper v State, 
    138 S.W. 1025
    , 1038, overruled in part by Robertson v State, 
    142 S.W. 533
    (Tex.
    Crim. App. 1911). As a result, the testimony of Ms. Sommers was error and it
    violated Appellant’s rights under art. I,§10 of the Tex. Const.
    Finally, because “[the] rights to confront and cross-examine witnesses . .
    .have long been recognized as essential to due process,” Chambers v
    Mississippi,
    410 U.S. 284
    , 294 (1973), Appellant restates and adopts all
    arguments made under his Sixth Amendment 
    right supra
    , except that Appellant
    now also makes these arguments under the Due Process Clause of the
    Fourteenth Amendment to the U.S. Const., which provides that no state shall
    “deprive any person of life, liberty, or property, without due process of law.”
    100
    C. Harm Analysis
    Because the violation of Appellant’s right to confront and cross-examine
    Rosie Gonzalez was a constitutional error, this Court must reverse the Judgment
    of Death unless the Court determines beyond a reasonable doubt that the error
    did not contribute to Appellant’s punishment. Tex. R. App. Proc. 44.2 (a). “When
    determining whether erroneously admitted evidence is harmless beyond a
    reasonable doubt, the question is not whether sufficient evidence to convict
    existed without this evidence, but whether there is a reasonable possibility that
    the erroneously admitted evidence contributed to the verdict obtained.” Jones
    v State, 
    833 S.W.2d 118
    , 127 (Tex. Crim. App. 1992) cert. denied, 
    507 U.S. 921
    (1993).     Not only did Ms. Sommers’ testimony violate Appellant’s
    constitutionally guaranteed rights to confront and cross-examine the witnesses
    against him, it also contributed to his punishment, particularly in light of
    Appellant’s testimony on direct examination. Appellant related that Rosie had
    posted his bond and had insisted that he come back to their apartment and help
    raise their son. The record reflects:
    Q.    Okay. And so - - and [Rosie]
    helped you get out of jail, right?
    101
    A.   Well, I had - - I had $5,000 at
    home, so I told her where the money was,
    and she said, “Well, I got to get somebody
    to sign,” because, in Illinois, it’s a little
    different. I mean, all you’ve got to do is go
    to the counter and give them the money,
    and you sign out. But, here, you have to get
    a bail bondsman. You have to - - you have
    to go through a lot more detail to get out of
    jail, so ...
    Q.   So did Roxie help you get out of
    jail?
    A.   Yes, sir.
    Q.   Did y’all try to work things out?
    A.    Yes, sir. We - - we actually - -
    the appointment I made with [a therapist],
    I had to make another appointment, so I
    end up calling her back, and we made
    another appointment. And then I had to
    get in touch with CPS, because they were
    calling. So I went up there and saw them.
    And that’s when she said I saw them
    December 11th. So December 12th, I
    actually jumped in the program, and I had
    to pay for that. It was, like, $300.
    *       *   *
    Q.     Okay. All right. And so at
    some point - - she had a protective order.
    She got a protective order, right?
    102
    A.     Yes, sir.
    Q.    Okay. And at some point, did
    she allow you to come back and live with
    her?
    A.    I mean, as soon as I - - as soon
    as she picked me up from down here, I
    mean, I went straight back to the
    apartment.
    (RR. XL-36-37).
    On cross-examination Appellant elaborated what transpired between Rosie and
    him:
    Q.    Well, let me - - let me answer it
    for you. It’s [Rosie’s] fault you violated
    that, right?
    A.    No. I mean, she wanted me
    there, and we - - she - - she - - she picked
    me up, and she said, “I don’t want you to
    go anywhere else. I want you here.”
    (RR. XL-66).
    Ms. Sommers’ testimony of what her daughter allegedly told about
    Appellant’s actions directly contradict Appellant’s testimony and frankly
    everything else in the record that shows that Rosie wanted to reconcile with
    Appellant. Everything else in the record supports this contention. Appellant
    103
    asserts that it reasonable to assume that such testimony contributed to his
    death sentence. As a result the trial court should have granted defense
    counsel’s motion for mistrial.
    D. The testimony was hearsay
    Appellant restates and adopts in this section all of the arguments and
    applications he made in the two previous points of error. However, now
    Appellant makes these arguments under Tex. R. Evid. 802, which provides, in
    relevant part, “Hearsay is not admissible except as provided by statute or these
    rules or by other rules prescribed pursuant to statutory authority.” Whether an
    out-of-court statement is admissible under an exception to the general hearsay
    exclusion rule is a matter within the trial court’s discretion. Zuliani v State, 
    97 S.W.3d 589
    , 595 (Tex. Crim. App. 2003).
    Hearsay is “a statement, other than one made by the declarant while
    testifying at the trial or hearing, offered in evidence to prove the truth of the
    matter asserted.” Tex. R. Evid. 801 (d). “In determining whether a trial court
    erred in admitting or excluding hearsay evidence . . . a reviewing court looks to
    see whether the trial court clearly abused its discretion; before the reviewing
    court may reverse the trial court’s decision, it must find the trial court’s ruling
    104
    was so clearly wrong as to lie outside the zone within which reasonable people
    might disagree.” Taylor v State, 
    268 S.W.3d 571
    , 579 (Tex. Crim. App. 2008).
    As the proponent of the evidence, the State had the burden to show that it was
    either not hearsay or was admissible under an exception to the rule against
    hearsay. Willover v State, 
    70 S.W.3d 841
    , 845-46 (Tex. Crim. App. 2002)
    (footnotes omitted). This it failed to do. Ms. Sommers’ statements were
    inadmissible hearsay as indicative of the trial court’s sustaining Appellant’s
    objection because they were offered to prove the truth of the matter asserted.
    The admission of otherwise inadmissible hearsay is not constitutional
    error. West v State, 
    121 S.W.3d 95
    , 104 (Tex. App. - - Fort Worth 2003, pet.
    ref’d). The requisite harm analysis is different. Tex. Rule App. Proc. 44.2 (b).
    When evaluating the harm caused by erroneously admitted hearsay, a reviewing
    court “must deem the error harmless if, after reviewing the entire record, the
    court is reasonably assured the error did not influence the jury’s verdict or had
    but a slight effect.” Davis v State,
    268 S.W.3d 683
    , 709 (Tex. App. - - Fort Worth
    2008, pet. ref’d).
    As stated above, the testimony was prejudicial and contradicted
    Appellant’s assertions that the two were trying to reconcile their relationship.
    105
    The jury could have easily concluded because of such testimony that Appellant
    was lying on cross-examination. Therefore, it is reasonable to assume that the
    testimony contributed to the jury’s verdict of death. As a result the trial court
    should have granted the defense motion for mistrial.
    Appellant respectfully requests that this Court sustain points of error
    fifteen, sixteen, and seventeen, reverse the Judgment, and remand his case to
    the trial court with instructions that he be afforded a new punishment hearing.
    106
    POINT OF ERROR EIGHTEEN
    THE TRIAL COURT ABUSED ITS DISCRETION
    AND VIOLATED APPELLANT’S RIGHTS
    UNDER THE CONFRONTATION CLAUSE OF
    THE UNITED STATES CONSTITUTION BY
    PERMITTING THE SEXUAL ASSAULT NURSE
    EXAMINER TO TESTIFY TO STATEMENTS
    MADE BY ROSIE GONZALEZ REGARDING
    AN EXTRANEOUS OFFENSE ALLEGEDLY
    COMMITTED BY APPELLANT. (RR. XXXV-11-
    20).
    POINT OF ERROR NINETEEN
    THE TRIAL COURT ABUSED ITS DISCRETION
    AND VIOLATED APPELLANT’S RIGHTS
    UNDER ARTICLE 1, §10 OF THE TEXAS
    CONSTITUTION BY PERMITTING THE
    SEXUAL ASSAULT NURSE EXAMINER TO
    TESTIFY TO STATEMENTS MADE BY ROSIE
    GONZALEZ REGARDING AN EXTRANEOUS
    OFFENSE ALLEGEDLY COMMITTED BY
    APPELLANT. (RR. XXXV-11-20).
    ARGUMENT AND AUTHORITIES
    A. The Facts
    During the punishment phase of Appellant’s trial the State called Sexual
    Assault Nurse Examiner Cynthia Crowe to testify to what Rosie Gonzalez had
    allegedly told her regarding an extraneous assault offense that Appellant had
    107
    allegedly committed on November 12, 2012, approximately six months before
    the present offense. The record reflects:
    Q.    And did you ask Ms. Sanchez
    what brought her to the emergency room?
    A.     Yes.
    Q.     And what was her answer?
    [DEFENSE COUNSEL]: Y o u r
    Honor, I’m going - - that - - I’m going to have
    to object at this time.
    May I take the witness on voir
    dire, Your Honor?
    THE COURT:          You may.
    VOIR DIRE EXAMINATION
    BY [DEFENSE COUNSEL]:
    Q.     Ms. Crowe?
    A.     Uh-huh.
    Q.   You said you work in the
    emergency room?
    A.     Yes.
    Q.     All right. And this is at HEB
    hospital?
    108
    A.    Yes.
    Q.    How many people do you see
    on a typical week at the emergency room?
    *   *     *
    A.    Probably hundreds.
    Q.    A week? Thousands a month?
    A.    I mean, I haven’t done the
    math. If you’ve done the math, then that’s
    correct.
    Q.    You see a lot of people, is what
    I’m saying.
    A.    Yes, I do.
    Q.    Do you have an independent
    recollection of a person by the name of
    [Rosie Gonzalez]?
    A.    No.
    Q.   Okay.     So you have no
    independent recollection of this individual
    that we speak of?
    A.    No.
    Q.    Okay.
    [DEFENSE COUNSEL]:        Your Honor,
    109
    I’m going to object.     She has no
    independent recollection and can’t
    remember. And it’s also a confrontation
    issue, Sixth Amendment.
    THE COURT:          Response.
    [PROSECUTOR] First of all, it’s an
    exception to the hearsay rules, and it’s not
    found - - it’s not been found by the courts to
    be testimonial hearsay. It’s nontestimonial
    hearsay, so it doesn’t affect the
    confrontation clause. Second of all, she
    has a business record in front of her that
    she created, and we have previously given
    a copy to the Defense.
    [DEFENSE COUNSEL]: Judge, it is
    testimonial, because it’s not some sort of
    response to police activity that’s impending
    doom or an injury in nature. This lady
    works in a hospital. Somebody comes in
    and talks to her, and those items are
    protected under the confrontation clause.
    So we object on that basis.
    THE COURT:          That objection is
    overruled.
    [DEFENSE COUNSEL]:        Can we have
    a running objection?
    THE COURT:          That’s granted.
    (RR. XXXV-15-17).
    110
    Ms. Crowe then related to the jury from her records what Ms. Gonzalez had
    told her happened during an extraneous assault which was a pending felony that
    Appellant had allegedly committed against her on November 12, 2012. The
    record reflects:
    Q.    Okay. Ms. Crowe, I had asked
    you: You had asked [Ms. Gonzalez] what
    brought her to the emergency room that
    day. What was her response?
    A.   Strangled last night and head
    was pounded on the floor.
    *    *      *
    Q.    Did she indicate to you who
    had done that?
    A.    I think, on the last page, it says,
    “Patient states boyfriend was arrested this
    morning, and it happened in Bedford.”
    Q.     Did you ask, during the course
    of your triage of [Ms. Gonzalez], whether or
    not there was domestic violence involved?
    A.     Yes, I did.
    Q.     And what was her response?
    A.     She said yes.
    111
    Q.    Was she accompanied by
    anyone that morning?
    A.   I documented that she was
    accompanied by a parent.
    Q.    And based upon her - - her
    statements to you about what brought her
    to the emergency room, what type of - -
    what type of action did you take with
    regard to her case?
    A.    Well, I triaged her, and I
    categorized her as a trauma, because she
    was an injury instead of a sickness. And
    she reported she lost consciousness, so
    that was a priority two.
    Q.   When a patient reports they
    lost consciousness, does that make it more
    serious to you as a triage nurse?
    A.  It means they need to see the
    doctor more quickly. So, yes, I guess it
    does.
    Q.    Was she sent to a bed?
    A.    She was put in a bed in the
    emergency room that had the capability for
    monitoring her.
    Q.    You also judge the cases by the
    level of acuity?
    112
    A.   Uh - huh.
    Q.     And what is that for the jury,
    please?
    A.    Oh, that was category two, the
    level of acuity.
    Q.    I’m having a little trouble
    hearing you.
    A.   Oh, that was a category two,
    the level of acuity, because she lost
    consciousness. So she needs to see the
    doctor sooner than later.
    Q.     Where did she tell you she was
    hurting?
    A.   Head and neck.
    Q.    And do you, as a triage nurse,
    ask the patient to categorize their pain in
    any fashion?
    A.     Yes. One being minimal pain,
    ten being most possible pain, how much
    pain are in now?
    Q.   And how did she categorize her
    pain?
    A.   I put ten, so she told me ten.
    Q.   You told us earlier how you
    113
    asked about the mechanism of injury. Did
    she tell you what the mechanism of injury
    was?
    A.    I put down, “I was choked until
    l passed out.”
    Q.     So she told you she was
    choked?
    *       *   *
    A.    Yes.
    Q.     So was she referred to a
    doctor; is that correct?
    A.   I don’t understand what you’re
    asking me.
    Q.    Was she referred to a doctor?
    A.     Do you mean was she seen by
    a doctor in the back?
    Q.    Yes.
    A.    Yes.
    Q.     Do you know what further
    diagnosis they did of her?
    A.    I can - -
    Q.    Did they send her for additional
    114
    testing?
    A.    I think she got a head CT.
    A.    And what is that?
    A.    It’s a X-ray that uses a
    computer. So it can see your bones, but it
    can also see your brain. So, like, if you had
    a brain bleed, that would show up on a
    head CT.
    (RR. XXXV-17-20).
    B. Federal and State Constitutional Law
    Appellant adopts the arguments made in points of error fifteen and
    sixteen, above. There should be no question that Rosie’s alleged statements
    made to the Sexual Assault Nurse Examiner are testimonial. Since Ms. Crowe
    had no recollection of her patient, all anyone has is the notes that she took while
    performing her duties as a SANE. The interview was a custodial examination in
    preparation for possible testimony against Appellant in court. At the time of the
    present offense, a felony family violence assault case pertaining to this incident
    was pending against Appellant. (RR. XL-34-36, 50-51). Rosie Gonzalez was not
    personally present as a witness at Appellant’s trial, nor was she examined in
    Appellant’s presence and subject to cross-examination by him. Thus, it was error
    115
    to allow Ms. Crowe to testify to what Rosie had told her. Appellant’s rights under
    the Sixth Amendment to the U.S. Const. and art. 1,§ 10 of the Tex. Const. were
    clearly violated. Appellant also asserts that the admission of this prejudicial
    testimony contributed to the jury’s death verdict.
    Appellant requests this Court to sustain points of error eighteen and
    nineteen, reverse the Judgment of Death, and remand his case to the trial court
    with instructions that he be afforded a new punishment hearing.
    116
    POINT OF ERROR TWENTY
    IF NONE OF APPELLANT’S POINTS OF
    ERROR ARE REVERSIBLE PER SE, THEN
    ALL OF THE ERRORS PRESENT
    CU M ULAT IV E E R R O R R E Q U I RING
    REVERSAL WHEN CONSIDERED TOGETHER.
    (Record in its entirety).
    Appellant contends that if this Court finds that the trial court erred as
    argued in points of error one through nineteen and that each error was harmless,
    then the errors warrant reversal of the trial court’s judgment when considered
    cumulatively. This Court, the Texas Supreme Court, and the United States Circuit
    Court of Appeals for the Fifth Circuit have all recognized that an aggregation of
    nonreversible errors, which are plain errors failing to necessitate reversal and
    harmless errors, can yield a result that amounts to the denial of the
    constitutional right to a fair trial, which calls for reversal. See, e.g., United States
    v Munoz, 
    150 F.3d 401
    , 418 (5th Cir. 1979) cert. denied, 
    25 U.S. 1112
    (1999);
    King v Federal Underwriters Exchange, 
    144 Tex. 531
    , 
    191 S.W.2d 855
    (1946)
    (citing Smerke v Office Equipment Co., 
    138 Tex. 236
    , 
    158 S.W.2d 302
    (1941);
    Renn v State, 
    495 S.W.2d 922
    (Tex. Crim. App. 1973).
    In Chamberlain v State, 
    998 S.W.2d 230
    , 238 (Tex. Crim. App. 1999)
    117
    cert. denied, 
    528 U.S. 1082
    (2000) (citing Stahl v State, 
    749 S.W.2d 826
    , 832
    (Tex. Crim. App. 1988)) this Court acknowledged that it “is conceivable that a
    number of errors may be found harmful in their cumulative effect. . .” Nine years
    later, in Gamboa v State, 
    296 S.W.3d 574
    , 585 (Tex. Crim. App. 2009) (citing
    Stahl at 832) this Court recognized that “it is possible for a number of errors to
    cumulatively rise to the point where they become harmful.”
    Even before Chamberlain was decided, at least one Court of Appeals had
    held that, although “some errors are not considered reversible, all errors
    considered together can present cumulative error requiring reversal.” Bott v Bott,
    
    962 S.W.2d 626
    , 631 (Tex. App. - - Houston [14th Dist.] 1997, no pet.) (citing
    Pitman v Lightfoot, 
    937 S.W.2d 496
    , 537 (Tex. App. - - San Antonio 1996, writ
    denied); Klein v Sporting Goods, Inc., 
    772 S.W.2d 173
    , 179 (Tex. App. - -
    Houston [14th Dist.] 1989, writ denied). Other Texas courts, including this one,
    have reversed trial court judgments for cumulative error, without labeling it as
    such, in cases of ineffective assistance of counsel. Ex parte Welborn, 
    785 S.W. 2d
    391, 396 (Tex. Crim. App. 1990) (“Although, no one instance in the present
    case standing alone is sufficient proof of ineffective assistance of counsel,
    counsel’s performance taken as a whole does compel such a holding.”); Brown
    118
    v State, 
    974 S.W.2d 289
    , 294 (Tex. App. - - San Antonio 1998, pet. ref’d) (“Not
    every allegation of ineffectiveness of counsel in this case would justify reversal.
    However, the totality of defense counsel’s representation undermines this court’s
    confidence in the conviction.”); Green v State, 
    899 S.W.2d 245
    , 249 (Tex. App. -
    - San Antonio 1995, no pet.) (holding that, while “not every shortcoming of
    defense counsel in this case would justify reversal. . .cumulatively, the errors
    totally undermine confidence in this conviction.”); Smith v State, 
    894 S.W.2d 876
    , 880 (Tex. App. - - Amarillo 1995, pet. ref’d) (“the combination of these
    circumstances verify that trial counsel’s representation fell below an objective
    standard of reasonableness”).
    In this case, through cumulative error, the trial court violated Appellant’s
    Fourteenth Amendment right to due process and a fair trial. The individual
    errors above involved matters of constitutional law and state law that so infected
    the entire trial that Appellant’s conviction violates due process and a fair jury
    trial in violation of the Sixth and Fourteenth Amendments to the U.S. Const. See,
    Derden v McNeel, 
    978 F.2d 1453
    , 1457 (5th Cir. 1992) (en banc) cert. denied,
    
    508 U.S. 960
    (1993); Stahl v State at 831 (holding harm lies in the cumulative
    effect of a witness’ outburst and prosecutor’s improper arguments). As a result,
    119
    this Court should reverse the Judgment and remand Appellant’s case back to the
    trial court with instructions that he afforded a new trial. See, Tex. Rule App. Proc.
    43.2 (d); Tex. Crim. Proc. Code Ann. art. 44.29 (a) (Vernon Supp. 2012).
    120
    CONCLUSION AND PRAYER
    Appellant respectfully prays that this Honorable Court sustain his first
    through fourteenth and his twentieth points of error, reverse the trial court’s
    Judgment and sentence of Death, and remand his case back to the trial court
    with instructions that he receive a new trial. In the alternative, Appellant
    respectfully prays that this Honorable Court sustain fifteenth through nineteenth
    points of error, reverse the Judgment and Sentence of Death against him, and
    remand his case to the trial court with instructions that he be afforded a new
    sentencing hearing.
    Respectfully submitted,
    /s/ Mary B. Thornton
    MARY B. THORNTON
    Attorney for Appellant
    3901 Race Street
    Fort Worth, Texas 76111
    Telephone No.: (817) 759-0400
    Telecopier No.: (817) 831-3002
    marybrabson01@gmail.com
    State Bar No. 19713700
    121
    STATEMENT OF COMPLIANCE WITH RULE 9.4 (i)(2)(B)
    I certify that this brief contains 27,112 words, complying with Rule 9.4
    (i)(2)(B) of the Texas Rules of Appellate Procedure.
    /s/Mary B. Thornton
    Mary B. Thornton
    CERTIFICATE OF SERVICE
    A copy of Appellant’s brief has been electronically served on the Hon.
    Debra Windsor, Chief of Post Conviction in the Tarrant County District Attorney’s
    Office, Fourth Floor of the Tim Curry Criminal Justice Center, 401 West Belknap,
    Fort Worth, Texas 76196, at COAAppellateAlerts@tarrantcounty.com on the 3rd
    day of August, 2015.
    /s/Mary B. Thornton
    MARY B. THORNTON
    122