Opinion
No. 05-07-01163-CR
Opinion Filed April 13, 2009. DO NOT PUBLISH Tex. R. App. P. 47.
On Appeal from the Criminal District Court No. 2 Dallas County, Texas, Trial Court Cause No. F07-00898-NI.
Before Justices MOSELEY, FITZGERALD, and LANG-MIERS.
OPINION
Dedrick Jones appeals his conviction for capital murder. After the jury found appellant guilty, the trial court sentenced appellant to life imprisonment. Appellant brings nine issues on appeal, asserting the evidence is factually insufficient, that the trial court erred by overruling appellant's objections to the State's exercise of peremptory strikes, and that the court abused its discretion in admitting a photograph, denying appellant's motion for mistrial, overruling appellant's objection to a videotape of the crime scene, and failing to instruct the jury on the lesser included offense of murder. We affirm the trial court's judgment.
BACKGROUND
In 1992, appellant lived in Memphis, Tennessee. Appellant had grown up in Hernando, Mississippi, and was a lifelong friend of Edward Williams. Williams was a "big-time" cocaine trafficker in Memphis. Williams obtained some of his cocaine from a Colombian in Houston. Williams would have a courier travel to Houston, pick up several kilograms of cocaine from the Colombian, and deliver it to Williams in Memphis. Appellant sometimes acted as one of Williams's couriers and also sold cocaine for Williams. In 1992, appellant's girlfriend, Santina Jeffries, made some of the cocaine runs to Houston. In the late spring of 1992, Jeffries took the bus to Houston. Appellant and Williams drove to Houston and picked up Jeffries at the bus station. They picked up two kilograms of cocaine from the Colombian. Williams repackaged the cocaine, gave it to Jeffries, and drove her to the Houston bus station for the trip back to Memphis. Williams's girlfriend went into the bus station with Jeffries to make sure she got on the bus, but she returned to the car crying that Jeffries had been arrested. Appellant, Williams, and Williams's girlfriend hurried back to Memphis. Jeffries made frequent, often emotional, telephone calls to appellant and Williams asking them to get her out of jail. Her bond was originally set at $500,000, but it was lowered to $200,000. Williams contacted Joyce Barron, the bail bondsman he used in Memphis, about getting Jeffries bonded out of jail. Barron referred Williams to Ron Tyler, a former associate of Barron's who lived in Garland. Appellant contacted Tyler and then went to Williams and said he needed to raise $20,000 for Jeffries' bond. Williams testified he gave appellant a kilogram of cocaine to sell to raise the money for Jeffries' bond. However, appellant later came to Williams and said he had sold the cocaine but had lost the money gambling. Williams then gave appellant $20,000 cash and told him that was all he would provide to help Jeffries. Williams testified appellant told him he went to Garland, gave Tyler the $20,000, and Tyler told him Jeffries would be released in a few days. However, Jeffries was never released on bond. She was eventually released in 1995 after spending three and a half years in prison. In 1992, Ron Tyler and his family were in the federal witness protection program due to his involvement in the prosecution of a white biker gang. Ron Tyler's last name had been Adkins, but when he entered the federal witness protection program, he, his wife, and his children changed their last name to Tyler. Tyler testified he told appellant he would need $22,000 cash for Jeffries' bond. According to Tyler, appellant drove to Tyler's house in Garland but brought only $5000. Tyler again told appellant that he needed $22,000, $20,000 for the bondsmen, and $2000 as Tyler's fee for referring the case to the bondsmen. Appellant asked Tyler to keep the money and to get started on the bond while he raised the rest of the money. Tyler agreed to do so. As Tyler carried the money to the back of the house, one of appellant's friends followed him and watched him while he put the money in the safe. Tyler later met appellant in Texarkana twice, appellant gave Tyler $3000 each time, and Tyler reminded appellant he needed $22,000. When appellant asked for his money back, Tyler said he would keep $2000 as his fee and return the rest of the money; appellant insisted on having all his money returned. Tyler's wife, Sherry Tyler, testified appellant made frequent calls to the house to speak to Tyler. Tyler and Sherry stated that at some point, appellant's tone changed, and he told them, "don't make him come down there and do something he didn't want to do." Williams testified that early one morning in the late spring of 1992, appellant went to Williams's house. Appellant was dressed in black, and he was holding a gun, a mask, and a pair of gloves. Williams testified appellant came into his bedroom and said, "I'm fixing to get ready to go to Texas, and he said, I'm either going to go get Tina [Jeffries] out of jail or get the money back or else I'm going to kill everybody in the house." Appellant said he was going with his friend, Clarence Bailey, and Jeffries' brother, Anthony Rodgers. Appellant gave his house keys to Williams and asked Williams to look after appellant's house and children if appellant did not come back. Williams testified appellant came to his house the next afternoon to get his keys, and appellant said he was having his car painted black. As Williams drove appellant to appellant's house, appellant told Williams he had gone to Garland, kicked in the door of Tyler's house, and "that he shot this old lady in the head in the kitchen." As Williams drove over a bridge, appellant threw some bullets out the window. Appellant told Williams they threw their guns into a river on the way back. Williams's wife, Renee', testified appellant came to their house at 4:00 a.m. carrying a gun and a dark-colored ski mask. Appellant told Williams, "I'm fixing to go," and then he and Williams went onto the porch and talked some more. A day or two later, appellant returned to the house and in Renee's presence told Williams, "I did it. We did it." Appellant said, "the old lady and the kids were there." On June 16, 1992, the Tylers were in the process of moving to a larger house down the street. Tyler, Sherry, and their two oldest children left to deliver a load of furniture to the new house, leaving their three youngest children at home with Tyler's mother, Elma Adkins. The girl, Melania, was in the living room; her two brothers, Adam and Mark, were in one of the bedrooms; and Elma was in the kitchen packing dishes. Melania heard a loud bang from the front door, and then the door was kicked in. Two men dressed in black and wearing gloves and masks entered the house. Elma dropped a plate and ran toward the men, shouting. The first man said, "shut up, bitch," and shot her in the head, killing her. The second man then shot Melania in the shoulder, and she lay down and played dead. As she watched through half-closed eyes, she saw a shadow on the front porch that appeared to be someone standing outside. The men then walked down the hallway to the bedroom where Mark and Adam were. After hearing the first shot, the boys hid in the closet, but the men found them. The men shot Mark in the leg and Adam in the chest. The men then left the house. Melania got up, checked on her brothers, and called 911. Melania and Adam testified they could tell the men were black because they could see the skin around the men's eyes and mouths. Mark testified he could not tell the men's race. Aimee Little, who lived down the street from the Tylers, testified that on the evening of the shooting, she saw a car driving down the street she thought belonged to a friend. She went outside and saw the car stop in front of the Tylers' house. Little saw three men get out of the car and walk to the door of the Tylers' house. Little could not see the men's faces, and she could not tell if they were masked. Although the men had dark skin tone, she could not tell if they were white, black, or Hispanic. Little then went back inside her house. A short time later, she saw the lights from police cars. The police arrested appellant in 1992 for the murder. However, they released him after appellant's friend, Verlene Walker, signed an affidavit stating appellant had been with her at the time. In 1995, appellant's relationship with Williams soured. Appellant did not pay Williams for cocaine and eventually owed Williams about $200,000. Williams's drug business got busted and Williams "caught a federal case." Williams asked appellant to pay some of the money he owed him, but appellant said he did not have any money to pay him. When Jeffries was released from prison and returned to Mississippi, she told Williams that appellant had said several things about Williams, including that appellant had money but was not going to pay Williams. Williams was angry, and he told Jeffries he was going to pick her up, take her to see appellant, and if she repeated the same things in appellant's presence, then he was going to kill appellant on the spot. Williams got his gun, picked up Jeffries, and drove her to appellant's aunt's house. Williams stayed in the car while Jeffries went inside. Appellant went to the front door, looked out, and slammed the door closed when he saw Williams waiting outside. Williams heard a commotion as appellant and Jeffries argued. The front door opened, and appellant ran out of the house and down the street. Williams did not shoot appellant because, he testified, he had come to his senses and realized that shooting appellant did not make sense. In 1996, Verlene Walker was on probation and was drug free. Walker was interviewed by the police, and she told them she had lied in her affidavit. She testified that in 1992, after appellant was arrested, she visited him in jail. Appellant told her to go to his lawyer and sign a paper stating he was with her between 4:00 p.m. and 9:00 a.m. of a particular date. Appellant told her that if she did as he said, she would not have to pay him for the drugs she was selling for him. The next day, she went to appellant's lawyer's office and filled out the affidavit falsely stating appellant had been with her at that time and date. She made up details to make the statement more convincing. Shortly thereafter, she was arrested for drug possession and went to prison where she stopped using drugs. While she was in prison, she received in the mail an envelope with no return address containing a clipping from a newspaper with information about the shooting. Philip Eames testified he lived next door to the Tylers. Three days before the murder, two black men drove up to his house, and one of them came to his door. The man asked Eames if he knew where his neighbors were. Eames said he did not know, and the man turned around and left. Vanessa Pollock testified she lived about three houses down from the Tylers. A couple of days before the murder, she went outside to check the mail when she heard a loud banging from the Tylers' house like someone banging on their front door. She saw two black men walk from the Tylers' house to a car, and they drove to where she was standing. The men asked about the Tyler family, and Pollock said she did not know anything about them. Shortly after the murder, the police showed Pollock two photo lineups. Appellant's picture and the picture of Clarence Bailey's brother, Ronnie Ollie, may have been in the lineups. Pollock was not able to identify anyone. In 1996, the police showed her three lineups containing the photos of appellant, Clarence Bailey, and Anthony Rodgers. Pollock tentatively identified Rodgers as one of the men she saw. James Cobb testified he grew up in the same neighborhood as appellant and that he knew appellant. In 1993, Cobb overheard a heated argument between appellant and Mark Oliver, "a local dope peddler in the hood." According to Cobb, appellant told Oliver he had killed some people in Texas and he would kill again. George Harris testified he and appellant had been roommates in 2005. Harris said appellant told him about a bail bondsman, "[s]omething synonymous to that some guy had tried to mess him out of some money and he handled his business." Harris testified he overheard appellant telling someone that the bail bondsman "thought he was going to get away with it, . . . but he [appellant] took care of business." Harris also testified he told appellant he heard appellant had killed "the whole family of people." "And he just scrudged (phonetic) me off like (descriptive sound), you know. Had to say, you know, that didn't happen or something like that, I guess. I don't know. . . . It was pretty much like stay out of my business, you know, like (descriptive sound), you know." Conya Jackson testified she dated appellant in the late summer of 1992. She testified appellant told her "he had went [sic] to Texas and killed this man's mother-in-law and kids." She also overheard appellant tell another person he went there and killed those people because the bail bondsman took his $20,000 and did not bond Jeffries out of jail. Jackson was with appellant when he told Williams "how he went to Texas and did what he did and came back and he was scott [sic] free. . . . He didn't get caught."JURY SELECTION
In his first through fourth issues, appellant asserts the trial court erred in overruling appellant's objection that the prosecutor exercised peremptory strikes in a racially discriminatory manner. The United States Constitution prohibits a party from exercising peremptory strikes in a racially discriminatory manner. J.E.B. v. Alabama, 511 U.S. 127, 129 (1994); Batson v. Kentucky, 476 U.S. 79, 89 (1986). To prevail on a claim of discriminatory jury selection, the defendant must demonstrate, by a preponderance of the evidence, that the prosecutor indulged in purposeful discrimination against a member of a constitutionally protected class in exercising peremptory strikes. Watkins v. State, 245 S.W.3d 444, 447 (Tex.Crim.App. 2008). To invoke the protection of Batson and its progeny, a defendant must raise an inference of purposeful discrimination, and the trial court must determine that a prima facie case of discrimination exists by virtue of the prosecutor's use of peremptory strikes. A defendant establishes a prima facie case of discrimination by showing facts and any relevant circumstances that raise an inference that the striking party used peremptory strikes to exclude veniremembers on account of their race. J.E.B., 511 U.S. at 144-45; Powers v. Ohio, 499 U.S. 400, 409 (1991); Batson, 476 U.S. at 96; Watkins, 245 S.W.3d at 447. When a party establishes a prima facie case, the burden of production shifts to the proponent of the strike to come forward with a race-neutral explanation. Purkett v. Elem, 514 U.S. 765, 767 (1995) (per curiam); Batson, 476 U.S. at 97; Watkins, 245 S.W.3d at 447. If a race-neutral explanation is tendered, the burden shifts to the complaining party to show the explanation is a sham or pretext for discrimination. Watkins, 245 S.W.3d at 447. Whether the opponent satisfies his burden of persuasion to show that the proponent's facially race-neutral explanation for the strike is not genuine but is merely a pretext for discrimination is a question of fact for the trial court to resolve. Id. "The term `pretext' is solely a question of fact; there is no issue of law. Therefore, the trial court was in the best position to make that credibility determination." Watkins, 245 S.W.3d at 447 n. 10 (quoting Gibson v. State, 144 S.W.3d 530, 534 (Tex.Crim.App. 2004)). On appeal, the trial court's decision on the issue of purposeful discrimination is given great deference because a determination of this issue requires an assessment of the credibility and the content of the striking party's explanation and all other relevant facts and circumstances. Jasper v. State, 61 S.W.3d 413, 421-22 (Tex.Crim.App. 2001); Alexander v. State, 866 S.W.2d 1, 8 (Tex.Crim.App. 1993). The reviewing court will not disturb the trial court's decision unless it is clearly erroneous. Hernandez v. New York, 500 U.S. 352, 369 (1991); Watkins, 245 S.W.3d at 447-48; Whitsey v. State, 796 S.W.2d 707, 727 (Tex.Crim.App. 1989) (op. on reh'g). Appellant complains of the prosecutor striking four African-American veniremembers, numbers seven, nine, sixteen, and twenty-four, who were four of the six African-American veniremembers within the strike zone. Appellant's argument specifically addressing veniremembers seven, nine, sixteen, and twenty-four is very brief and does not provide any supportive legal authorities. The prosecutor explained the reasons for the strikes, so we presume a prima facie case was made. Thus, the issue of whether appellant established a prima facie case is moot. See Watkins, 245 S.W.3d at 447 n. 11; Simpson v. State, 119 S.W.3d 262, 268 (Tex.Crim.App. 2003). The prosecutor stated that all veniremembers were struck who stated "agree" on question ten of the questionnaire and "do not agree" to question twelve. Questions 10 and 12 on the questionnaire read as follows:10. Rate your reaction to the following statement: I would need some kind of physical evidence in addition to witness testimony in order to find someone guilty.
[ ]strongly agree [ ]agree [ ]do not agree [ ]strongly disagree
12. Rate you reaction to the following statement: A defendant's admission to friends about his involvement in a crime are persuasive evidence.
[ ]strongly agree [ ]agree [ ]do not agree [ ]strongly disagree
The prosecutor provided reasons for each of the four veniremembers. Many of the explanations were based upon the answers to the questionnaire. The trial court concluded that all of the explanations were race neutral. In step three, appellant provided no evidence. Appellant provided a specific response to the prosecutor's reasons on veniremember number twenty-four only. Otherwise, counsel told the court,
I just want the record to reflect that . . . anytime there's a juror questionnaire that's filled out, there's going to be some difference on every questionnaire from every other one. . . . You could probably go to any one of these jurors that's sitting on a jury and pick out some answer that they made that's different from somebody else's.
The trial court then overruled appellant's objections. We will consider the prosecutor's reasons for striking each of the four veniremembers.
Veniremember No. 7
The prosecutor stated veniremember number seven was struck because of her answers to the questionnaire. Question 1 of the questionnaire asked, "What are your feelings in general about the criminal justice system? Do you trust the system?" The veniremember stated, "Yes, I do trust the system, even if there [are] a lot of innocent people sent to prison. Mistakes have been made in the past but with better technology we can correct in the future." The prosecutor, referring to the answer to question one, stated he struck the veniremember because:
regarding what we need, as far as evidence, one, saying we have a lot better technology now than we did back then as far as innocent people being in jail. The State making an evaluation of what evidence we're going to have in this case did not feel that would benefit us, as well as the fact that at the top of her questionnaire she says there are a lot of innocent people went to prison.
At trial, appellant made no specific response to the prosecutor's reason. On appeal, appellant points to the veniremember's answer to question 1 stating "Mistakes have been made in the past but with better technology we can correct in the future," the fact she answered "strongly agree" to questions 10 and 12, and stated she would have no concerns about finding someone guilty based on the testimony of one witness. These answers do not show the prosecutor's reasons were a pretext for discrimination. The prosecutor stated he had concerns about the veniremember's answer showing a belief in the superiority of technological evidence when the State's case had little technological evidence. Although not cited by the prosecutor, this concern was also supported by the veniremember's answer to question 10, where the veniremember answered "strongly agree" to the statement she "would need some kind of physical evidence in addition to witness testimony in order to convict." However, as appellant observed on appeal, the veniremember stated in answer to question 15 that she could convict based on the testimony of one witness.
After considering the entire record and appellant's arguments concerning the trial court's ruling on veniremember seven, we conclude the trial court's decision to overrule appellant's objection to the State's exercise of a peremptory challenge against that veniremember is not clearly erroneous. We overrule appellant's first issue.
Veniremember No. 9
The prosecutor explained veniremember number nine was struck because:
I talked to her at great length about not paying attention. She had some difficulty understanding. She was very concerned she'd be confused by the law, and we had a concern she wouldn't be able to follow what was going on. . . . Further on 9, I had to ask her if I upset her because of the way she was acting towards me. And, also, she had explained she might have difficulty inferring what somebody's intent was based on the circumstances.
The defense responded to the prosecutor's explanation:
Number 9, Ms. Harris, was confronted with a question without any preamble or explanation of the law, just presented with a question, how do you tell somebody's intent? And, then, when she shows some confusion, was told that she didn't understand it, do you. And from there, we get around to a Batson challenge, and I suggest to you that that is not what Batson has in mind. . . . After she was explained it and another juror did understand it and talked about it, Mr. Rodgers [the prosecutor] went on about it, he came back to her, and she just said, I guess so. And then, she said, well, probably so. Intent just looks suspicious. I'd probably get confused.
The court then overruled appellant's objection to the peremptory strike of veniremember number nine.
The record of the voir dire shows the prosecutor was beginning to explain the elements of capital murder when he spoke to veniremember number nine, Ms. Harris:
[Prosecutor]:
Murder is intentionally causing the death of another person, the victim. Okay?
Mr. [sic] Harris? Ms. Harris. Excuse me. I'm sorry. Are you okay?
[Ms. Harris]:
I'm okay.
[Prosecutor]:
Are you following me so far?
[Ms. Harris]:
So far.
[Prosecutor]:
Have I said something to upset you?
[Ms. Harris]:
No.
[Prosecutor]:
Not yet?
[Ms. Harris]:
No.
[Prosecutor]:
How do you know what somebody intends to do?
[Ms. Harris]:
How do I know what?
[Prosecutor]:
What somebody intends to do?
[Ms. Harris]:
Intends to do?
[Prosecutor]:
Yeah. How do you know what somebody's intent is when they do something?
[Ms. Harris]:
Well, I don't.
[Prosecutor]:
You don't?
[Ms. Harris]:
I don't know what a person is going to do.
[Prosecutor]:
Well, not what they're going to do in the future, but how do you know if you see something if that's what they intended to do or not?
[Ms. Harris]:
I guess if they look suspicious to me.
The prosecutor then discussed the issue of determining a person's intent in performing an action from examining all the circumstances of the action. The prosecutor then returned to Ms. Harris.
[Prosecutor]:
Ms. Harris, do you agree with that?
[Ms. Harris]:
I guess so.
[Prosecutor]:
You guess so. Okay. What aren't you following on that?
[Ms. Harris]:
The intention.
[Prosecutor]:
Because we honestly can't cut somebody's head open and try to look in and see what they meant to do right?
[Ms. Harris]:
No, you can't.
[Prosecutor]:
Do you think it's unreasonable to be able to determine-look at circumstances and infer what somebody intended based upon surroundings and events that were going on at the time?
[Ms. Harris]:
Probably so.
[Prosecutor]:
Probably. Okay. Are you comfortable doing that if you ended up sitting on this jury? Knowing all that's riding on it-I mean, we've got a lot riding on this, correct? Are you comfortable being able to make that determination if you end up sitting over here on this jury?
[Ms. Harris]:
I'm not for sure.
[Prosecutor]:
Okay. . . . Do you think you're a person who should be sitting on this jury making some of these decisions?
[Ms. Harris]:
No.
[Prosecutor]:
Why not?
[Ms. Harris]:
I'll probably get confused on some of the things that go on.
After discussing the allegation of the murder being committed in the course of committing or attempting to commit burglary, the prosecutor questioned Ms. Harris further:
[Prosecutor]:
. . . What about Ms. Harris, did you hear all that?
[Ms. Harris]:
Yeah, I heard it.
[Prosecutor]:
How do you feel about all that? I'm sorry?
[Ms. Harris]:
I said I heard. I don't have any questions.
[Prosecutor]:
Okay. Well, you mentioned a little bit earlier that you're easily confused, and I just want to make sure you understand the law to make it easier for you to make a decision as to whether you're comfortable with the law and can follow the law. How do you feel about that?
[Ms. Harris]:
I'm comfortable with it.
[Prosecutor]:
Okay.
[Ms. Harris]:
As you go on, I get to understanding more about the law.On the questionnaire, the veniremember answered question 1's inquiry of her feelings about the criminal justice system and whether she trusted it as follows: "I never had to go through any criminal justice, I guest [sic] they do a good job and do trust the system." On question 10, she indicated "strongly agree" to the statement about needing physical evidence to convict. On question 12 she indicated "agree" to the statement that a defendant's admissions to friends about his involvement in a crime are persuasive evidence. Appellant also observes the veniremember answered question 14's inquiry of the factors she would consider in deciding whether someone is truthful, stating, "showing some kind of remorce [sic] of feelings." The prosecutor's striking veniremember number nine for her confusion about the law, her apparent difficulty in understanding how a juror determines a party's intent, and the prosecutor's concern that she was upset with him are supported by the record. The reasons are facially race neutral. Appellant's arguments before the trial court and on appeal do not demonstrate that the State's reasons for striking the veniremember were pretexts for racial discrimination. After considering the entire record and appellant's arguments concerning the trial court's ruling on veniremember number nine, we conclude the trial court's decision to overrule appellant's objection to the State's exercise of a peremptory strike against that veniremember is not clearly erroneous. We overrule appellant's second issue.
Veniremember No. 16
The prosecutor explained his strike of veniremember number sixteen as follows: Number 16, if the Court will remember, we called her up to talk to her about-and I talked to her at great length about needing physical evidence in this case. And at first, she said she did need it. Then she said she didn't. Then she explained. And, again, given the nature of the case the State has [sic]. On the questionnaire, the veniremember indicated "strongly agree" to the inquiry of whether she would need physical evidence in addition to witness testimony to convict. She also indicated concern about finding someone guilty based on the testimony of one witness and explained, "Need for some type of physical evidence." During the State's voir dire, the prosecutor asked veniremember number 16, Ms. King, if she could convict in the absence of physical evidence:[Ms. King]:
I think I would have a problem with that to convict somebody off of just hearsay of somebody, you know. It could have been an enemy or somebody that's just vindictive. Fifteen years, it's going to be hard for somebody to remember exactly what they were doing exactly at that time.
So I think I would-maybe I need-I think I would have to have actual physical evidence before I could send somebody to jail for life.
[Prosecutor]:
. . . My question to you is: You judge people's credibility when you're a juror. So you decide whether you believe them or not as far as saying what they remembered, saying what they heard. But my question to you is: Even if you're convinced beyond a reasonable doubt the defendant is guilty, are you saying you won't find him guilty unless you have some physical evidence, some hard core, tangible?
[Ms. King]:
I think that I would have a very difficult time coming up with a guilty verdict off of possibly just one person's testimony, whether it be a State witness or statements they made to somebody else. I just don't see, you know-I don't see myself without any physical-type evidence.
[Prosecutor]:
Okay. Is this a true or false statement, that you will not convict this defendant of capital murder unless you have some sort of physical evidence?
[Ms. King]:
I would say true.
During the defense's voir dire, Ms. King indicated by raising her hand that she believed "that eyewitness testimony is the most reliable testimony." Defense counsel also discussed with Ms. King the issue of finding guilt in the absence of physical evidence:
[Defense Counsel]:
Ms. King, . . . [y]ou indicated that . . . you'd probably have to have some physical evidence before you could render a verdict in the case.
[Ms. King]:
Uh-huh.
[Defense Counsel]:
And I can understand. . . . Some cases might have a whole lot of physical evidence. Some cases might have some but not a whole lot. Some, not at all. And it really just rolls back to that same eternal question. Has the State convinced you of what they have brought, whatever it is, have they convinced me beyond a reasonable doubt that Dedrick Jones is guilty. . . .
[Ms. King]:
Yes. I mean, it just depends on the circumstances.
[Defense Counsel]:
Yeah. And if the circumstances showed you that the person is guilty, whatever the evidence is, you'll find them guilty?
[Ms. King]:
Yes.
Ms. King underwent further individual questioning:
[Prosecutor]:
Ms. King, you were asked questions by both sides about physical evidence, and [defense counsel] was the last one to speak to you. We just want to make sure we're all on the same page here.
[Ms. King]:
Okay.
[Prosecutor]:
Because you did tell me you needed physical evidence.
[Ms. King]:
Uh-huh.
[Prosecutor]:
And you told him that you don't. And, I guess, to phrase it one last time, just to make sure we're on the same page, if there is a case that there's no physical evidence, let's say that it's just witness testimony, but that witness testimony is of such a nature that you do believe the offense beyond a reasonable doubt, okay, so the State has satisfied their burden beyond a reasonable doubt in your mind with just witness testimony, but there's no physical evidence, will you find the defendant guilty in that situation, or are you saying you won't, because I believe it, but there's no physical evidence?
[Ms. King]:
I think I believe it. Let's put it down. Because I think earlier, you gave examples or hypothetical questions, but when you do the hypotheticals, some of the examples don't seem to match some of the hypotheticals. . . .
Let's put it like this: 15 years down the line somebody says, oh, I heard so-and-so told me last year that they committed this murder. Okay. I'm not necessarily going to believe that person.
Now, if they say, okay, five years, ten years, fifteen years later, this person committed this murder, and they said they did and the left-they got everything and even put a fork underneath the kitchen pipe in this thing over to the left, something so specific that no one else would know that, other than the media, then I could see some situation like that.
[Prosecutor]:
I can see where there's confusion. Because what you're describing is, I don't believe them in this situation, but I believe them in this situation. So whatever you need to believe it beyond a reasonable doubt, my question is: Once you believe it beyond a reasonable doubt, will you still find them guilty even if there's no physical evidence?
[Ms. King]:
In that scenario, I could.
[Prosecutor]:
Okay. And will you, is the question?
[Ms. King]:
Yes, I would.The prosecutor explained he peremptorily struck Ms. King because the State's case had little physical evidence and Ms. King's responses indicated that she considered the existence of physical evidence to corroborate the testimony of witnesses to be a critical concern in a case more than fifteen years old. The record supports the prosecutor's explanation. Nothing in the record shows this explanation was a pretext for racial discrimination. After considering the entire record and appellant's arguments concerning the trial court's ruling on veniremember sixteen, we conclude the trial court's decision to overrule appellant's objection to the State's exercise of a peremptory challenge against that veniremember is not clearly erroneous. We overrule appellant's third issue.
Veniremember No. 24
The prosecutor explained he struck veniremember number twenty-four because she answered the first question of the questionnaire, enquiring of her "feelings in general about the criminal justice system" and whether she trusts it, by writing, "Do what you have to do." The prosecutor stated, "I, personally, had never seen a response like that to a Question Number 1 on the questionnaire. We don't know what it means." The prosecutor pointed out he did not have the questionnaire in time to ask her about her answers. The prosecutor stated he also struck her because her answer to question 8, whether she or a close friend or relation ever had a bad experience with the police, was unreadable. The prosecutor also observed she answered questions 10 and 12 to state she agreed she would need physical evidence to find someone guilty and did not agree that "[a] defendant's admissions to friends about his involvement in a crime are persuasive evidence." Defense counsel responded, "Just because someone writes, do what you have to do, seems to me a pretty shallow reason to describe somebody when you could probably go to any one of these jurors that's sitting on a jury and pick out some answer that they made that's different from somebody else's." On appeal, appellant argues "that far from justifying a strike these statements simply reflect a clear consciousness that the State's burden was significant, and thus, reflect that the State's strike was truly racial in motive." The veniremember's answer of "Do what you have to do" to question 1 of the questionnaire was irrational and nonsensical. Striking a veniremember for giving illogical, irrational, or nonsensical answers does not demonstrate a pretext for racial discrimination. See Mandujano v. State, 966 S.W.2d 816, 820 (Tex.App.-Austin 1998, pet. ref'd). We conclude the trial court's decision to overrule appellant's challenge to the prosecutor's peremptory strike of veniremember number twenty-four was not clearly erroneous. We overrule appellant's fourth issue.FACTUAL SUFFICIENCY OF THE EVIDENCE
In her fifth issue, appellant asserts the evidence is factually insufficient to support his conviction. In evaluating the factual sufficiency of the evidence, we view all the evidence in a neutral light and ask whether the evidence demonstrates the proof of guilt is so weak or the conflicting evidence is so strong as to render the verdict clearly wrong and manifestly unjust. Roberts v. State, 220 S.W.3d 521, 524 (Tex.Crim.App.), cert. denied, 128 S. Ct. 282 (2007); Watson v. State, 204 S.W.3d 404, 414-15 (Tex.Crim.App. 2006). We set aside a verdict only when, based on some objective basis in the record, we are able to say the great weight and preponderance of the evidence contradicts the verdict. Watson, 204 S.W.3d at 417. We are permitted to substitute our judgment for the factfinder's when considering credibility and weight determinations, but only to a very limited degree. Marshall v. State, 210 S.W.3d 618, 625 (Tex.Crim.App. 2006). We must give almost complete deference to the factfinder's decision when that decision is based upon an evaluation of credibility. Lancon v. State, 253 S.W.3d 699, 705 (Tex.Crim.App. 2008). Appellant asserts the evidence is factually insufficient because none of the eyewitnesses identified him as one of the assailants and no scientific evidence linked him to the offense. In addition to circumstantial evidence, appellant's incriminating admissions support the jury's verdict. Williams, his wife, Harris, and Jackson testified they heard appellant say he participated in the incident, Williams testified appellant said "he shot this old lady in the head in the kitchen," and Jackson testified appellant said "he had went [sic] to Texas and killed this man's mother-in-law and kids." Appellant asserts the evidence is factually insufficient because many of the State's witnesses were convicted felons, including Williams, Harris, Walker, and Cobb. He also states that Williams had longstanding hostility toward appellant because appellant owed him about $200,000 and had said things about him to Jeffries that made him angry. However, some of Williams's testimony was corroborated by his wife, who had no convictions. Likewise, Jackson had no convictions, and she testified she heard appellant speak of his participation in the incident. Appellant asserts it was impossible for Jackson to have overheard his conversation outside the car while she was sitting in the car with the windows up, but Jackson testified she could hear it, and the record contains no evidence that the car was so soundproof that it was impossible for her to overhear the conversation. Appellant points out "a significant discrepancy" between Williams's and Renee's testimony, namely, where the early morning conversation with appellant took place. Williams testified it took place in the bedroom, and Renee' testified it took place at the front door and outside of her presence on the porch. This discrepancy is not that significant given that the conversation took place more than fifteen years previously. Appellant also cites to testimony by Williams that appellant asserts is exculpatory. Initially, the police arrested appellant and Ronnie Ollie, Clarence Bailey's brother, for the murder, but they were soon released. Discussing appellant's statements after his release from jail in 1992 for the murder, Williams stated: After Dedrick and them got out of jail he told me that, you know, he was pretty sure about that he was going to be all right, you know, because they had picked up Dedrick and Ronnie. And, you know, Ronnie knew that he didn't-didn't go. And he told me that he had talked to Verlene Walker, and Verlene was going to be an alibi for him for that particular-for that, you know, for that particular night. We disagree that the statement is exculpatory; the statement instead shows appellant's reasons for thinking he was "scott [sic] free." As appellant explained, Ollie was safe because he was not part of the trio involved in the shooting, and appellant was safe because he had the alibi that he was with Walker. Appellant also asserts his statements of involvement in the shooting were mere "braggadocio" with no substance. Appellant's description of the statements as "braggadocio" is not determinative. We look to the evidence, and in this case there is no evidence that the statements were false and empty boasting. To the extent appellant's arguments concern the credibility of the State's witnesses, we must give almost complete deference to the jury's credibility determinations. Appellant has not shown this case falls into the narrow category of cases where we may disregard the jury's credibility determinations. Appellant also argues the assailants could have been Tyler's enemies from his involvement in the investigation of the biker gang resulting in Tyler's and his family's protection under the federal witness protection program. Tyler's and Melania's testimony negated that possibility because the biker gang was white and the assailants were black. We conclude the evidence is factually sufficient to support appellant's conviction. We overrule his fifth issue.ADMISSION OF PHOTOGRAPH
In the sixth issue, appellant asserts the trial court abused its discretion in admitting State's Exhibit 5, a picture of Sherry, Elma, and the five children taken by Tyler at Six Flags about a week before the shooting. Appellant objected to the photograph "as being irrelevant and duplicitous." We review a trial court's decision to admit evidence over objection under an abuse-of-discretion standard; we will not reverse that decision absent a clear abuse of discretion. McCarty v. State, 257 S.W.3d 238, 239 (Tex.Crim.App. 2008). The trial court abuses its discretion when the decision lies outside the zone of reasonable disagreement. Id. On appeal, appellant argues the exhibit was not relevant. Evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Tex. R. Evid. 401. Generally, photographs are admissible if verbal testimony about the matters depicted in the photographs would be admissible and their probative value is not substantially outweighed by the danger of undue prejudice, confusion of the issues or misleading the jury, or by considerations of undue delay or needless presentation of cumulative evidence. Threadgill v. State, 146 S.W.3d 654, 671 (Tex.Crim.App. 2004); see Tex. R. Evid. 403. "Like other demonstrative evidence, photographs should assist the jury with its decision, whether that be deciding guilt or punishment. A photograph should add something that is relevant, legitimate, and logical to the testimony that accompanies it and that assists the jury in its decision-making duties." Erazo v. State, 144 S.W.3d 487, 491 (Tex.Crim.App. 2004). The State asserts the photograph is relevant to show Elma's appearance shortly before she died. However, the State introduced State's Exhibit 1, a photograph of Elma by herself, that Melania testified accurately depicted how she looked before the shooting. The record also contained State's Exhibits 2, 3, and 4, which are portraits of Melania, Adam, and Mark-the children shot by the assailants-taken around that time. State's Exhibit 5 does show how Sherry and the other two children looked in 1992, but that was not a material fact issue. As the State admits in its brief, its "need for the evidence was likely rather small." Even if the trial court erred in admitting the photograph, we cannot reverse unless we determine this non-constitutional error affected appellant's substantial rights. Tex. R. App. P. 44.2(b). Under this rule, an error is reversible only when it has a substantial and injurious effect or influence in determining the jury's verdict. We do not overturn the conviction if we have fair assurance from an examination of the record as a whole that the error did not influence the jury, or had but slight effect. Taylor v. State, 268 S.W.3d 571, 592 (Tex.Crim.App. 2008). Appellant argues the photograph "depicts complainant amidst her family in what appears to be halcyon days. As such, it serves no purpose save to portray complainant as a part of a family living an ideal life and to depict the family members as victims." We disagree. This photograph of the family at an amusement park does not "portray complainant as part of a family living an ideal life." Nor does it depict the other family members as victims. Furthermore, three of the family members depicted-Melania, Mark, and Adam-were victims in the shooting. Finally, the evidence, although mostly circumstantial, strongly supported appellant's guilt. After considering the affect of the photograph in light of the entire record, we have fair assurance that the admission of the photograph did not influence the jury or had but slight affect. Accordingly, even if the admission of the photograph was an abuse of discretion, it is not reversible. We overrule appellant's sixth issue.DENIAL OF MISTRIAL
In the seventh issue, appellant asserts the trial court abused its discretion in denying a mistrial after Tyler made unsolicited prejudicial statements. During the State's examination of Tyler, the prosecutor asked Tyler for the details of why his initial meeting with appellant took place at his house instead of at a bail bondsman's office. The following then occurred.Q.
I know. I'm asking a lot of details. If you don't remember, it's okay. I just need to know. Meaning, at that point-
A.
Well, you know, I got a momma dead and three babies shot. I'd better remember.
[Defense Counsel]:
Your Honor, we're going to object as to nonresponsive.
The Court:
Sustained. Let's move on.
[Defense Counsel]:
Ask that the jury to be instructed to disregard.
The Court:
Disregard.
[Defense Counsel]:
Respectfully move for a mistrial.
The Court: Denied.We review a trial court's denial of a mistrial for an abuse of discretion, and we must uphold a judge's decision denying a mistrial if it was in the zone of reasonable disagreement. Archie v. State, 221 S.W.3d 695, 699 (Tex.Crim.App. 2007). "Only in extreme circumstances, where the prejudice is incurable, will a mistrial be required." Id. (quoting Hawkins v. State, 135 S.W.3d 72, 77 (Tex.Crim.App. 2004)). Ordinarily, a trial court's prompt instruction to the jury to disregard improper testimony will cure error. Ovalle v. State, 13 S.W.3d 774, 783 (Tex.Crim.App. 2000). Appellant asserts Tyler's statements constituted improper victim-impact testimony. He argues that the statements were composed of pure emotion. He acknowledges the court promptly instructed the jury to disregard, but he argues "the efficacy of the instruction was overwhelmed by the powerful emotional nature of this evidence." We disagree. Tyler made a single, brief, unsolicited emotional statement. The statement added no facts not already in evidence. Given the brief, unrepeated nature of the statement concerning evidence already before the jury, the trial court's decision that any prejudice flowing from the statement was not incurable was within the zone of reasonable disagreement. We conclude the trial court did not abuse its discretion in denying appellant's motion for mistrial. We overrule appellant's seventh issue.