Daniel, Brandon , 485 S.W.3d 24 ( 2016 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. AP-77,034
BRANDON DANIEL, Appellant
v.
THE STATE OF TEXAS
ON DIRECT APPEAL FROM CAUSE NO. D-1-DC-12-201718
IN THE 403 RD DISTRICT COURT
TRAVIS COUNTY
M EYERS, J., delivered the opinion for a unanimous Court.
OPINION
In February 2014, a jury convicted appellant of the capital murder of peace officer
Jaime Padron. T EX. P ENAL C ODE § 19.03(a)(1). Pursuant to the jury’s answers to the
special issues set forth in Texas Code of Criminal Procedure article 37.071, sections 2(b)
and 2(e), the trial judge sentenced appellant to death. T EX. C ODE C RIM. P ROC. art.
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37.071, § 2(g).1 Direct appeal to this Court is automatic. Art. 37.071, § 2(h). Appellant
raises three points of error. After reviewing appellant’s points of error, we find them to
be without merit. Consequently, we affirm the trial court’s judgment and sentence of
death.
STATEMENT OF FACTS
The evidence showed that on the evening of April 5, 2012, appellant was at his
apartment in Austin with his roommate, Kelvin Davis. Davis testified that, while they
were drinking alcohol and smoking marijuana in their apartment, appellant wondered
aloud “what it would be like to hit a store” and “how much money would they keep in the
cash drawer.” Appellant also remarked that he had already gotten away with “worse
shit.” Davis observed appellant drinking a large quantity of tequila and taking several
Xanax pills throughout the course of the evening. He also heard appellant crying and
talking to his mother on the phone about his ex-girlfriend, Jenna Feland. Davis testified
that appellant was still in their apartment when Davis went to sleep around 9:30 p.m.
Appellant drove his motorcycle to a Walmart store later that night. Several store
employees, including Sean McCarthy, Lincoln LeMere, and Archie Jordy, testified that
appellant appeared to be intoxicated. Sometime between midnight and 1:00 a.m. on April
6th, appellant approached McCarthy, who was re-stocking water inside the store, and
asked him to watch his bags while he went outside to get something. Appellant exited the
1
Unless otherwise indicated, all future references to Articles refer to the Texas Code of
Criminal Procedure.
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store for a few minutes, then came back inside, retrieved his bags, and continued walking
through the aisles. Jordy testified that appellant was “drifting from side to side” with a
“glazed look” in his eyes, attempting to pick up items and dropping them on the floor.
After observing appellant’s behavior, LeMere called the police “to keep him from
driving” while intoxicated. LeMere waited outside for the police to arrive, and Jordy
remained inside the store and watched appellant.
Uniformed police officer Jaime Padron arrived at the Walmart, and LeMere
accompanied him inside the store. LeMere testified that he pointed out appellant, who
was approximately 100 yards away with Jordy behind him. Padron told appellant that he
was from the Austin Police Department, and added “[S]top, I need to talk to you.”
Appellant then began running towards the front exit. Padron tackled appellant, and they
fell to the ground. LeMere testified that he never saw Padron remove his gun from his
holster; however, LeMere, Jordy, and other store employees heard a gunshot as Padron
and appellant fell to the ground. Employee Alma Ramirez Gutierrez testified that she saw
appellant put a gun to Padron’s neck and fire a second shot. She then ran to the customer
service area and called 9-1-1.
LeMere testified that he “immediately jumped onto” appellant, who raised his arm
and fired a third shot that passed by LeMere’s ear. LeMere pushed appellant’s arm to the
ground and Jordy stepped on appellant’s hand, causing him to release the gun. Jordy then
kicked the gun away. LeMere testified that appellant “laid his head down” and appeared
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to pass out “for a second.” Appellant then raised his head and looked at Padron, who was
lying on the floor bleeding profusely from his neck. Appellant laughed and said, “I killed
a cop.”
When Officer Christopher Kroger arrived at the Walmart, appellant still was on the
ground. Kroger handcuffed appellant, and he and Sergeant Scott Perry performed CPR
on Padron until EMS personnel arrived. Perry observed three shell casings and a gun on
the ground, and he testified that Padron’s gun was still in its holster in a locked position.
EMS personnel attempted to resuscitate Padron, but he died at the scene. The medical
examiner who performed Padron’s autopsy testified that he died from a gunshot wound to
the neck which fatally damaged his carotid and vertebral arteries. The “muzzle imprints
and the gunpowder soot” around the wound indicated that the gun barrel was pressed
against Padron’s neck at the time of the shooting. Padron also had a hole in his shirt, but
there did not appear to be any damage to the armored vest he was wearing underneath.
The evidence indicated that appellant used a Jimenez Arms .380 pistol with hollow
point bullets to shoot Padron. The medical examiner testified that hollow point bullets
typically “cause more damage” on impact than regular bullets. Greg Karim, a firearm and
toolmark examiner, testified that the first shot appellant fired went through Padron’s shirt,
the second shot went through Padron’s neck, and the third shot went through the roof of
the Walmart.
The police searched appellant at the scene and found a magazine containing six
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.380 hollow point bullets in his pocket. He also had a backpack containing $56.90 worth
of unpaid items, including food and alcoholic beverages. He was taken outside and
placed in the back of Officer Albert Arevalo’s patrol car. Arevalo testified that appellant
smiled and winked at him when he was inside the patrol car. He asked Arevalo if they
were in Travis or Williamson County, and he inquired whether one county was more
lenient than the other. He also wanted to know if he would get a life or death sentence for
what he had done, how long it would take and how much it would cost to get bailed out of
jail, where his motorcycle would be taken, and how long it would take to retrieve it.
Arevalo noticed that appellant seemed lethargic, and he had slurred speech and red,
watery eyes. At one point, appellant was removed from the patrol car for EMS worker
Christopher Lester to examine him. Lester testified that appellant did not smell like
alcohol, and appellant denied that he had consumed any alcohol or drugs. Appellant also
asked Lester “if he was going to get life in prison for this.” Lester described appellant as
“blank,” “cold,” and emotionless during their conversation.
Officer Cory Knop transported appellant to the police station in his patrol car.
Knop testified that at times appellant pressed his face against the glass divider and lay
down in the car, his speech was slurred, and he appeared to be “on some kind of
depressant.” Arevalo testified that when appellant arrived at the police station, he saw an
old police motorcycle and remarked that it was “cool,” and he spontaneously said, “[H]ey,
I killed a cop.” Appellant also asked Knop if he remembered him, which Knop did
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because he had previously arrested appellant for DWI in February 2012. Knop testified
that appellant said, “[T]he next time I see you I’ll be 70 years old.” Detective Anthony
Nelson also testified that when appellant’s blood was drawn, he looked down at his
hands, chuckled, and said, “I guess I got that cop’s blood on my hands.”
Appellant gave a recorded statement to police in which he admitted that he killed
Padron. He said that in the hours before the offense, he drank alcohol, smoked marijuana,
and took “[f]our bars” of Xanax. He stated that he went to the Walmart intending “to
shoplift a bunch of items” and brought his gun with him “in case there was some
altercation” because he “was foreseeing cops preventing [him] from leaving the store.”
While he was there, he could tell that store employees were “eyeballing” him, and he
knew that they were going to “confront” him. He explained “The officer told me to stop
and I knew what he was after, and I had a .380 in my pocket so I figured that the
consequences might be worse so I ran, the cop grabbed me and . . . I turned around and
shot him.” Appellant stated that his gun was cocked and fully loaded. He admitted that
he “pulled [the gun] up directly to [the officer’s] face,” and he fired one “pointblank shot
to the face.” He asked if he would spend the rest of his life in jail for what he did, and he
stated that he should “[p]robably be put to death” because he “killed a cop.” When
Detective David Fugitt asked appellant why he decided to pull the trigger, he answered
“Umm, it’s a lame excuse, but I’m basically blaming it on the drugs.”
The evidence showed that appellant regularly used drugs prior to the instant
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offense. Appellant’s former girlfriend, Jenna Feland, who dated appellant from 2008 to
2011, testified that appellant took drugs when they lived in Colorado, and at one point he
used Ecstasy “every day probably for almost a couple months.” Appellant reduced his
drug use when they moved from Colorado to Austin for his job as a software engineer at
Hewlett-Packard in 2010. However, after they broke up around December 2011,
appellant became depressed, started drinking more alcohol, and used Xanax.
Kristina (“Nikki”) Nance testified at punishment that she met appellant through a
Craigslist ad in late 2011 or early 2012, and she was involved with appellant for two to
three months thereafter. During that time, appellant took drugs, including Xanax,
cocaine, acid, mushrooms, and Ecstasy. Nance testified that appellant started using more
drugs over time and that he “popped [Xanax] like candy.” At one point, she gave
appellant $600 to buy drugs with the understanding that he would pay her back, but he
never did.
Nance testified that she saw appellant’s gun on multiple occasions, that appellant
remarked that it was “cool,” and that he had it for “protection.” Nance further testified
that appellant told her that he had outrun the police on his motorcycle when he lived in
Colorado.
Appellant’s roommate, Davis, was aware that appellant had a gun. Appellant had
also told Davis that he had outrun the police on his motorcycle. Davis testified that
appellant increased the frequency and intensity of his drug use when he was with Nance
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and that, when Nance once threatened to damage appellant’s vehicle, appellant “[s]aid he
would kill her.” Davis, however, did not take that threat seriously.
The parties presented evidence of appellant’s behavior during childhood and in the
years preceding the instant offense. A former classmate, Caresa Marino, testified that,
when they were in the sixth grade, appellant ran up to her during recess, cursed at her, and
told her to lock her doors and windows because “he was going to come to [her] house and
rape [her].” Marino testified that her mother later reported the incident and appellant
“stayed away from [her] at school after that[.]”
Dr. William Lee Carter, the psychologist who evaluated appellant for the defense,
testified that appellant reported that he became depressed and started experimenting with
drugs between the ages of 11 and 13. Carter acknowledged that appellant assaulted
another boy in the locker room in high school, and a disciplinary report stated that he
showed no remorse for that incident. Carter also testified that there was a “common
theme” of appellant trying “to be somebody he’s not by bragging, by pushing limits.” He
further acknowledged that appellant had power struggles with adults and “other authority
figures, including police.”
Appellant’s aunt, Sherri Schuck, testified that appellant’s parents sent him to
military school for a period of time when he was sixteen years old. Schuck acknowledged
that after appellant “went AWOL” from military school, he lived with Schuck for a few
months before returning home. Schuck testified that appellant took alcohol from her
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refrigerator, despite being told that he could not drink or take drugs while staying in her
home.
When appellant was nineteen years old, he failed to stop for a police officer while
speeding on his motorcycle near Denver, Colorado. Officer Shawn Wycoff testified that
on January 25, 2007, appellant was driving his motorcycle 80 miles an hour in a 55-mile-
an-hour zone. He accelerated when Wycoff tried to stop him, making numerous lane
changes and traveling at a high rate of speed. Wycoff was unable to apprehend him, but
appellant eventually stopped for another officer. He was cited for eluding a police officer
and failing to “have an endorsement for a motorcycle license.” Although his motorcycle
was registered, the plates were not attached to it. The officers also found .02 ounces of
marijuana in his pants pocket. Appellant told Wycoff that he was “out joyriding,” he
“just didn’t want to get caught,” and he “didn’t want to lose his license or his
motorcycle.”
Two years later, in February 2009, appellant purchased his .380 pistol from a pawn
shop in Fort Collins, Colorado. Police searched appellant’s computer and recovered from
the hard drive photographs that were taken in Spring 2009. One photograph depicts
someone holding a gun in his hand. Two others depict the gun being pointed at a wall or
ceiling, with a bullet hole visible in one of the pictures. Another photograph depicts a
bullet hole with a hand holding a quarter next to it. Although the photographs show the
hand and arm of the person holding the gun, the face is not visible. Based on appellant’s
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tattoos, Detective Fugitt determined that appellant was the person in the photographs
holding what appeared to be a .380 pistol.
In December 2011, police stopped appellant for speeding in his vehicle on a
highway between Amarillo and Lubbock. Department of Public Safety Trooper Charles
Hoover testified that, when he stopped appellant, he smelled a very strong odor of burnt
marijuana. In appellant’s vehicle, Hoover found a “marijuana grinder,” a pipe, and “pill
bottles of prescription marijuana,” which appeared to be prescribed to someone in
Colorado. When appellant was arrested by Hoover, and again when he was arrested by
Knop for DWI in February 2012, appellant made polite conversation with the officers and
said that he was a “productive member of society.” He also told Knop that he had worked
as a police informant in Colorado. Knop suspected that appellant made these statements
in an effort to influence Knop not to arrest him.
The State introduced evidence of appellant’s behavior while he was in jail
following the instant offense. On May 20, 2012, appellant approached a corrections
officer and told him that he “had found a bunch of orange and green pills” in the
dayroom, and he “had taken them trying to commit suicide.” He was taken to the hospital
for evaluation. The hospital records stated that appellant admitted “taking a bag of pills
he found taped under a chair in a suicide attempt.” Although he “required intubation and
mechanical ventilation for respiratory distress,” his “urine and serum drug screens were
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negative.”2 The hospital records stated that appellant suffered “poisoning” by drugs and
“medicinal substances.”
In June 2012, corrections officer Dustin Rade found “hooch” hidden behind the
toilet in appellant’s cell. In August 2012, Rade inspected appellant’s cell and found “six
pills in the window ledge,” and he believed that appellant was hoarding prescription pills.
Appellant also kept a list in his cell with names and details about jailers and their shifts,
which led Rade to believe that appellant was monitoring the jail operation.
While appellant was housed in the health-services building, fellow inmate Louis
Escalante expressed curiosity as to why appellant was in jail. Appellant asked Escalante
if he had seen him on the news, and he showed Escalante a picture of himself at the time
of the offense. Appellant smirked, laughed, and he stated that he was “the one that
murdered a cop.” Escalante testified that, when he asked appellant if he had any remorse
or sympathy for the victim, appellant “just nodded his head no.” Escalante also testified
that, on another occasion, he overheard appellant talking to another inmate about an
escape plan.
Corrections officer Timothy Parrish testified about an incident that occurred in
August 2013, when inmates in the dayroom were watching television news coverage of
appellant’s case. At the completion of the news story, the inmates applauded for
2
Dr. Harold Scott, a psychiatrist who interviewed appellant and reviewed his records,
suspected that appellant might have taken “haloperidol,” a generic form of Haldol, which Scott
testified is “the most common psych drug in an institutional setting.” Scott testified that the
hospital did not screen appellant’s blood for Haldol.
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appellant, who “took a bow in front of everybody.” Parrish testified that one of the
inmates “screamed out fuck the police,” and appellant “acknowledged him by raising his
fist in the air.”
The State further introduced evidence of appellant’s verbal and written
communications with his mother, his sister, and his ex-girlfriend (Feland). He told his
mother that he had been joking when he reported being depressed and suicidal in jail. He
also expressed to his sister that he was sent to the hospital after making a joke, and he
added, “Sometimes these guys are so stupid.” He talked to his mother and Feland about
corresponding in code in order to bypass security at the jail. He also sent Feland a letter
telling her not to talk to anyone about him without his permission. He told Feland, “I
know what I’m doing,” and he instructed her to “let me run the defense and just help me
by only doing what I say directly.”
Detective Fugitt testified that appellant had an online profile on “meet-an-
inmate.com.” Fugitt testified that appellant wrote his mother asking her “to make [him]
sound more bad” in his profile because the website visitors might be looking for someone
more “criminalish.” Appellant also conversed with his mother about “murderabilia” and
selling his artwork in jail. He told his mother that “as far as the prison pecking order goes
in relation to crimes committed, I think I may be at the top.” In a jail visit with Feland, he
discussed selling his story for one hundred thousand dollars. He also wrote a letter to
Feland in which he stated “Just living the dream. I’m retired at 25.”
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Appellant presented evidence at punishment that he had been diagnosed with
“major depressive disorder” by Dr. Tara Wagner, the psychiatric consultant to the jail,
and by Dr. Harold Scott, a psychiatrist who evaluated appellant for the defense. He had a
history of substance abuse, untreated depression, and suicide attempts. His parents also
used drugs and alcohol, and they divorced when he was a child. Dr. Thomas Walter
Harrell, a neuropsychologist who interviewed appellant and reviewed his records,
testified that appellant had a few incidents as a child where he hit his head and was
“knocked unconscious.” Harrell gave appellant a “smell identification test,” but he did
not request a brain scan. He testified that the results indicated that appellant “can’t
smell,” which “clinically correlates” with behavioral disinhibition, poor self-control, and
mood instabilities, and it “raises the index of suspicion” that he could have a frontal lobe
brain deficit. Dr. Carter, the psychologist who evaluated appellant for the defense, opined
that appellant could respond well to a structured prison environment. Carter noted that
“[m]any of the things that influenced him and pushed him into a negative state during his
childhood, youth, [and] early adulthood will be absent from him [in prison], particularly
the substance abuse problems.”
SUFFICIENCY OF THE EVIDENCE AT PUNISHMENT
In his first point of error, appellant asserts that the evidence is legally insufficient
to support the jury’s affirmative answer to the future-dangerousness special issue. When
reviewing the legal sufficiency of the evidence to support the jury’s answer to the future-
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dangerousness special issue, we view the evidence in the light most favorable to the
verdict and determine whether any rational trier of fact could have believed beyond a
reasonable doubt there is a probability that the defendant would commit criminal acts of
violence that would constitute a continuing threat to society. Williams v. State, 273
S.W.3d 200, 213 (Tex. Crim. App. 2008); see also Jackson v. Virginia, 443 U.S. 307,
319 (1979). In its determination of this special issue, the jury is entitled to consider all of
the evidence admitted at both the guilt and punishment phases of trial. Young v. State,
283 S.W.3d 854, 863 (Tex. Crim. App. 2009). The jury may consider a variety of factors
when determining whether a defendant will pose a continuing threat to society.3 Keeton
v. State, 724 S.W.2d 58, 61 (Tex. Crim. App. 1987). The circumstances of the offense
and the events surrounding it may be sufficient to sustain an affirmative answer to this
special issue. Devoe v. State, 354 S.W.3d 457, 462 (Tex. Crim. App. 2011).
Appellant contends that “applying the [Keeton] criteria of future dangerousness
review shows that Appellant is not a future danger.” Specifically, he argues that he acted
without forethought and deliberateness and he was “highly intoxicated on [X]anax” and
suffering from depression at the time of the crime. He points out that he has no history of
3
These factors include, but are not limited to: (1) the circumstances of the capital
offense, including the defendant’s state of mind and whether he was working alone or with other
parties; (2) the calculated nature of the defendant’s acts; (3) the forethought and deliberateness
exhibited by the crime’s execution; (4) the existence of a prior criminal record, and the severity
of the prior crimes; (5) the defendant’s age and personal circumstances at the time of the
offense; (6) whether the defendant was acting under duress or the domination of another at the
time of the offense; (7) psychiatric evidence; and (8) character evidence. Keeton v. State, 724
S.W.2d 58, 61 (Tex. Crim. App. 1987).
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violence. He further asserts that his actions were the result of “a combination of the
[X]anax, his upbringing, the alcoholism and drug addiction of his parents, his traumatic
brain injury to his frontal lobe, and his long history of impulse control [problems.]” He
argues that, under these circumstances, the evidence was insufficient to show that he
would commit criminal acts of violence that would constitute a continuing threat to
society.
We disagree. The evidence showed that appellant went to the Walmart intending
to shoplift and that he brought a loaded gun because he “was foreseeing cops preventing
[him] from leaving the store.” Prior to the commission of this crime, he had demonstrated
an escalating pattern of disrespect for the law. See Jackson v. State, 33 S.W.3d 828, 838
(Tex. Crim. App. 2000)(stating that an escalating pattern of disrespect for the law
supports a finding of future dangerousness). After the commission of this crime, he
displayed a lack of remorse. See Rachal v. State, 917 S.W.2d 799, 806 (Tex. Crim. App.
1996)(considering lack of remorse as a factor in determining future dangerousness); see
also Trevino v. State, 991 S.W.2d 849, 853-54 (Tex. Crim. App. 1999)(stating that future
dangerousness can be inferred from evidence showing a lack of remorse). He smiled and
laughed after killing Padron, took a bow and raised his fist when inmates applauded him
after watching news coverage of his case, and bragged to his mother that he was “at the
top” of the “prison pecking order” because of the crime that he had committed. He also
discussed plans to escape prison and profit from his crime.
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Although Harrell opined that appellant could have a frontal-lobe deficit, he did not
think appellant’s brain was damaged to the extent that he could not control his behavior
or impulses. However, Harrell acknowledged that, if appellant had access to drugs and
alcohol in prison, then he might be less likely to control his impulses and he could be at
risk to commit acts of violence. Appellant accessed drugs and alcohol while awaiting
trial by possessing “hooch” and hoarding pills in his cell.
The evidence, viewed in the light most favorable to the verdict, was sufficient to
support the jury’s affirmative answer to the future-dangerousness special issue. Point of
error one is overruled.
JURY SELECTION
In point of error two, appellant complains about the trial court’s refusal to grant his
challenge for cause against prospective juror Marcus Reading. Appellant argues that
Reading was challengeable for cause under Article 35.16(c)(2) because “he had a bias or
leaning towards death in a case involving the death of a police officer, and thereby
lowered the [S]tate’s burden of proof on that issue.”
To establish harm for an erroneous denial of a challenge for cause, the defendant
must show on the record that: (1) he asserted a clear and specific challenge for cause; (2)
he used a peremptory challenge on the complained-of venire member; (3) his peremptory
challenges were exhausted; (4) his request for additional strikes was denied; and (5) an
objectionable juror sat on the jury. Comeaux v. State, 445 S.W.3d 745, 749 (Tex. Crim.
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App. 2014).
The record reflects that appellant asserted a clear and specific challenge for cause
to Reading, arguing that he had a bias toward imposing a death sentence and would
require the defense to present mitigating evidence. The trial court denied appellant’s
challenge for cause. The record clearly shows that appellant used fourteen peremptory
challenges, including one peremptory challenge to Reading.4 After he used his fourteenth
peremptory challenge, the following discussion occurred.
[DEFENSE COUNSEL]: Your Honor, we will use our last
peremptory on Michael Guzman.
THE COURT: Well, you don’t have a peremptory left.
[PROSECUTOR]: Yeah, they do.
THE COURT: I mean, they [have] one, but we don’t need it because
we have 12 jurors.
[DEFENSE COUNSEL]: Right. As long as the alternate pool starts
with 119.
THE COURT: The alternate pool starts with 119[, Roderick
Mechem].
4
Article 35.15(a) provides: “In capital cases in which the State seeks the death penalty
both the State and defendant shall be entitled to fifteen peremptory challenges.” Article 35.15(d)
further provides that:
The State and the defendant shall each be entitled to one peremptory challenge in
addition to those otherwise allowed by law if one or two alternate jurors are to be
impaneled and two peremptory challenges if three or four alternate jurors are to be
impaneled. The additional peremptory challenges provided by this subsection
may be used against an alternate juror only, and the other peremptory challenges
allowed by law may not be used against an alternate juror.
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[DEFENSE COUNSEL]: That’s fine.
THE COURT: Okay. So let’s start with number -- you were saying
you would have asked for an extra peremptory to use it on him if the
alternate pool didn’t start there.
[DEFENSE COUNSEL]: Correct.
THE COURT: Well, you don’t need an extra peremptory because
you still have one. So you wouldn’t need an extra one because you still
have the one left.
[DEFENSE COUNSEL]: Fair enough.
THE COURT: So either way, it’s going to start with -- well, I don’t
know whether the alternate pool would start with Guzman or not, but --
[DEFENSE COUNSEL]: We have a strike left so --
THE COURT: So you are striking him anyway?
[DEFENSE COUNSEL]: We would strike him.
THE COURT: Okay. So we will do -- yeah, I don’t know what we
need, but okay.
And so now the alternate pool starts with No. 119, Roderick
Mechem.
In his brief, appellant concedes that “[t]he defense in this case did not utilize all of
its peremptory challenges[.]” The State says in its brief that “[t]he defense used its
fifteenth peremptory challenge to strike a venireperson from the pool of alternate jurors.”
Cf. Comeaux, 445 S.W.3d at 752 (holding that a defendant who chooses to employ
peremptory strikes outside of the strike zone may not then complain about harm
concerning a juror within the strike zone who could have been removed instead).
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Regardless, the record shows that appellant did not request additional strikes or identify
an objectionable juror who sat on the jury. Consequently, he cannot demonstrate harm.
Point of error two is overruled.
VOIR DIRE OF EXPERT WITNESS
In point of error three, appellant contends that the trial court erroneously denied his
right “to fully voir dire” the State’s expert witness, Dr. Marisa Mauro, “as to her opinion
and its basis.” Appellant asserts that the trial court violated Texas Rule of Evidence
705(b), which provided at the time of trial:
Prior to the expert giving the expert’s opinion or disclosing the underlying
facts or data, a party against whom the opinion is offered upon request in a
criminal case shall, or in a civil case may, be permitted to conduct a voir
dire examination directed to the underlying facts or data upon which the
opinion is based. This examination shall be conducted out of the hearing of
the jury.
The State called Mauro to testify as a rebuttal witness at the punishment phase of
trial. Prior to her testimony, defense counsel requested “to do a qualification hearing on
the State’s expert outside the presence of the jury.” See T EX. R. E VID. 702. The trial
court responded, “Okay. Let’s get her sworn and do the qualification while the jury is
out.”
Outside the presence of the jury, the State first conducted voir dire examination of
Mauro regarding her educational and professional background. Defense counsel then
proceeded.
Q. Can you summarize your findings that you intend to testify [about]
DANIEL--20
for us today?
THE COURT: I thought the voir dire was on qualifications.
[DEFENSE COUNSEL]: It is, but it’s possible we may move to
suppress some of her findings, depending on what they are. So we would
like --
THE COURT: But the fact that she is allowed to testify as to her
findings is based on her qualifications, so we don’t need to take that part
outside the presence of the jury and delay it further.
[DEFENSE COUNSEL]: I think we have the right to question
whether there is a scientific basis to her findings prior to her testifying
about those findings.
THE COURT: Well, I guess you can -- you can definitely testify
[sic] as to what she has based her findings on as far as her expertise as part
of her qualifications, but just to have a second hearing as to what they are
and then repeat it once the jury comes in, I don’t think you do have a right
to do that.
You can certainly ask her on what basis she based her findings
without going into what they are, because the request for the voir dire was
as to her qualifications, because she has not testified as to any conclusions
as of yet.
[DEFENSE COUNSEL]: If I could check the rule just very briefly,
Your Honor, I’m sorry. I’ll pull it up on my computer.
THE COURT: All right.
(Defense counsel conferring)
Q. Ms. Mauro, the basis for the opinions you intend to testify about are
your training and education; is that correct?
A. My training, education, knowledge of the literature, research as well,
including the DSM.
DANIEL--21
Q. Fair enough.
And did you perform any either personality tests on Mr. Daniel or
any psychopathy checklists or anything of that nature?
A. No, I was instructed not to.
Defense counsel then asked Mauro a few more questions to clarify whether she
completed any tests or checklists based on appellant’s records that she had reviewed.
Mauro answered in the negative. Defense counsel then stated: “Your Honor, we have no
objection at this time for -- to Ms. Mauro being able to testify.” Mauro then testified
before the jury without objection.
The record shows that the trial court permitted appellant to examine Mauro about
the underlying facts or data in accordance with Rule 705(b). To the extent that appellant
is complaining that the trial court improperly limited his voir dire examination of Mauro,
he has failed to preserve his complaint for our review. When the trial court explained,
“You can certainly ask her on what basis she based her findings without going into what
they are,” defense counsel requested a moment to “check the rule” on his computer. After
doing so, defense counsel continued to question Mauro without further objection. See
T EX. R. A PP. P. 33.1; Fuller v. State, 253 S.W.3d 220, 232 (Tex. Crim. App. 2008)(stating
that to preserve error for appellate review, a party must make a timely and specific
objection, and there must be an adverse ruling by the trial court). Point of error three is
overruled.
We affirm the judgment of the trial court.
DANIEL--22
Delivered: February 10, 2016
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