Opinion
No. AP-74,851
Delivered: April 26, 2006. DO NOT PUBLISH.
On Direct Appeal from Cause No. F01-00328-T in the 283rd District Court, Dallas County.
PRICE, J., delivered the opinion of the Court, in which KELLER, P.J., and MEYERS, JOHNSON, KEASLER, HERVEY, HOLCOMB, and COCHRAN, JJ., joined. WOMACK, J., concurred in the result.
OPINION
The appellant was convicted in November 2003 of capital murder. 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 court sentenced the appellant to death. Direct appeal to this Court is automatic. The appellant raises forty-two points of error. We will affirm.
TEX. CODE CRIM. PROC. Art. 37.071, § 2(g).
TEX. CODE CRIM. PROC. Art. 37.071, § 2(h).
A. Facts
On December 13, 2000, the appellant escaped from the Texas Department of Criminal Justice Connally Unit, along with inmates George Rivas, Larry Harper, Donald Newbury, Randy Halprin, Joseph Garcia, and Michael Rodriguez. They stole firearms and ammunition from the prison and eventually made their way to Irving, Texas, where they planned to commit the robbery of an Oshman's Supersports store on Christmas Eve. On the evening of December 24, 2000, the group armed themselves with weapons and two-way radios and carried out their plan. Rodriguez, Halprin, Garcia, and Newbury entered Oshman's pretending to be customers, and they were followed by Rivas and Harper, who were dressed as security guards. The appellant stayed behind inside their Suburban in the store parking lot, acting as a lookout and monitoring the Irving Police Department's activity on a radio frequency scanner. The Oshman's store was scheduled to close at 6:00 p.m. At about 5:45 p.m., Rivas and Harper spoke with store managers Wes Ferris and Tim Moore at the front of the store and stated that they were investigating a shoplifting ring in the area. After they showed employees a photographic lineup and viewed the store's surveillance videotape, Rivas drew his gun and announced the robbery. The rest of the escapees surrounded the employees with their weapons drawn. The employees were told to place their hands on the counter while the escapees searched them. Ferris testified that he heard Rivas talking to someone on a two-way radio. Rivas "asked if everything was okay outside and somebody responded saying everything was fine, the police were involved with an accident on 183." Rivas then made the employees walk single file to the breakroom at the back of the store, where he ordered them to face the wall and remain silent. Rodriguez and Garcia remained in the breakroom with the employees, while Rivas escorted Ferris back through the store. Rivas took a tote bag off the wall on their way to the customer service area, where he had Ferris open the registers and place the money in the bag. He also made Ferris give him the keys to his car, a white Ford Explorer parked outside. Rivas took the store surveillance tape from the video room and had Ferris empty the cash from the office safe into the bag. They then went to the gun department, and Ferris gave Newbury the key to unlock the case where the shotguns and rifles were kept. Ferris retrieved handguns from a safe, then they went back to the employee breakroom. Rivas said that he was going outside to get the vehicle and directed Rodriguez and Garcia to tie up the employees and meet him behind the store. When Rivas went outside, he encountered Misty Wright, who had arrived earlier to pick up her boyfriend, Oshman's employee Michael Simpson. Wright testified that while waiting in her car in the parking lot, she saw the employees being patted down and walking to the back of the store in a single-file line. She became concerned and called her friend Sheila, who quickly drove to the store, parked her car, and got into Wright's car with her. Wright testified that a man wearing a black hat and a black security jacket exited the store and walked toward a white Ford Explorer, but started walking in their direction when he heard Sheila activate her car alarm. Wright drove away and parked at a nearby restaurant, and Sheila called 911 on her cell phone. As they watched the Oshman's store and waited for police to arrive, Wright saw the man get into the Explorer and drive around to the back of the store. Inside the store, Ferris heard someone on the radio telling Rodriguez and Garcia to hurry up and get out of the store because they "had company." Michael Simpson testified that he heard, "Come on, we got to go. We got to go. We got company." Rodriguez and Garcia quickly left the breakroom and told the employees not to move for ten minutes. Irving Police Officer Aubrey Hawkins was dispatched to Oshman's on a suspicious persons call. He was the first officer to arrive on the scene. When he drove around to the loading dock area at the back of the building, the escapees shot him multiple times. Rivas and Halprin were also shot during the incident. One of the escapees pulled Hawkins out of his vehicle, and another took his handgun. As the escapees fled the scene in the Explorer, they ran over Hawkins and dragged him several feet. They then drove to a nearby apartment complex, where they met the appellant and abandoned the Explorer. When other officers arrived at Oshman's, they found Hawkins lying face down on the ground without a pulse. The medical examiner testified that Hawkins suffered eleven gunshot wounds, some of which caused fatal injuries to his brain, lungs, and aorta, and he had other injuries that were consistent with being run over and dragged by a vehicle. Oshman's employees identified the escapees in a photographic lineup, and the Irving police prepared warrants for the seven suspects and sent the information to law enforcement agencies throughout the nation. On December 31, 2000, the escapees checked into the Coachlight Motel and RV Park in Woodland Park, Colorado, where they lived in their RV for several weeks and claimed to be traveling missionaries. They eventually aroused the suspicions of other people staying at the RV park, who contacted the Teller County Sheriff's Department on January 21, 2001. On January 22, local law enforcement officers and the FBI apprehended five of the escapees. When they surrounded the RV, Halprin surrendered and Harper committed suicide. Officers found firearms, cash, ammunition, two-way radios, an emergency frequency guide and scanners, a smoke grenade, and a security hat inside the RV. A bag outside the RV contained gun parts and electronic communication devices. Rivas, Rodriguez, and Garcia were captured in their Jeep at an area convenience store. Officers searched the Jeep and found firearms, cash, a two-way radio, a nightvision scope, a police scanner, and police radio frequency lists for Colorado Springs and Pueblo. The appellant and Newbury were apprehended after a standoff with police at a Holiday Inn in Colorado Springs on January 23. Officers recovered cash, firearms, ammunition, and ski masks from their hotel room. Colorado Springs police officer Matt Harrell testified that he spoke to the appellant on the telephone during the standoff at the hotel. Harrell testified the appellant told him that during the Oshman's robbery he "was in a truck with radio contact, with an AR-15, and he was set up to do damage from behind in a stand-off situation." The appellant gave a written statement to Irving police officer Randall Johnson admitting his involvement in the Oshman's robbery. He stated that he and the other escapees planned to rob Oshman's "to increase [their] arsenal and to get rid of the weapons [they] stole from the prison." Prior to the robbery, they determined the layout of the store and the number of employees and decided the roles each of the escapees would play. The appellant acted as "backup and lookout." He programmed Irving police frequencies into a radio scanner and waited in the Suburban in the Oshman's parking lot. The Suburban was loaded with weapons, including "2357's with magnums loads, revolvers . . . [an] AR 15 with approximately 60 rounds of ammunition, and a twelve gauge pump with 10 rounds." The escapees communicated with each other over walkie-talkies, and, once inside, Harper or Rivas radioed the appellant to let him know "it was going down." They occasionally radioed the appellant to "see if all was o.k. out front," and the appellant radioed them a few times to let them know there were some vehicles outside "apparently waiting on someone." After Rivas went outside, got into an employee vehicle, and drove around the back of the store, the appellant heard on the scanner, "Suspicious activity at the Oshman[']s." The appellant "got on the walkie-talkie and [told] them to abort[;] the police were here." He gave them the precise location of the patrol car and the direction it was traveling. When the patrol car drove around to the back of Oshman's, the appellant radioed, "He's coming around the corner, leave, leave." Shortly thereafter, Harper radioed the appellant and told him to go to the "pickup point." The appellant secured the weapons in the Suburban and drove to the apartment complex where he met the rest of the escapees. He stated that if he were pursued by police, his purpose "was to initiate firefight with the AR 15." During the punishment phase, the State introduced evidence that the appellant had committed the offense of burglary of a building in February 1984. He received a six-year probated sentence for the offense. In March 1984, he entered the apartment of a woman he had known in high school, tied her up, held a knife to her, and sexually assaulted her. He was convicted of aggravated sexual assault and received a fifty-year sentence. The other escapees were also serving sentences for serious offenses such as aggravated robbery, kidnapping, injury to a child, murder, capital murder, and sexual assault. After the escape an officer at the Connally Unit searched the appellant's dormitory cubicle and found a handwritten note. The note stated: "I refuse to abide by the dictations of a police state, which Texas has surely become. Today I fire the first shot of THE NEW REV[O]LUTION. Long live freedom. Death to tyranny." After their escape from the Connally Unit and prior to the Oshman's robbery, the escapees committed the robbery of a Radio Shack and an Auto Zone. An Auto Zone employee testified that he saw Rivas communicating with someone outside on a two-way radio during the robbery. The escapees took the truck of another Auto Zone employee, which police found in the parking lot of a nearby grocery store. There was an earpiece for a handheld radio in the truck bed. DNA testing of the earpiece revealed a profile that was consistent with that of the appellant. Rivas testified at punishment that he planned the escape and robberies and assigned the appellant the role of "lookout." Rivas confirmed that the appellant stayed outside the Oshman's in the Suburban with their guns and gear, monitored a police scanner, and communicated with Rivas on a two-way radio. The appellant told him over the radio that there was a suspicious activity call and that the police were on their way. After Rivas went outside and drove behind the Oshman's, the appellant radioed him and told him that a police car was coming around the corner to the back of the store.B. Sufficiency of the Evidence
In points of error nine through twelve, the appellant argues that the evidence is legally and factually insufficient to support his conviction for capital murder. In evaluating the legal sufficiency of the evidence, we must view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. In a factual sufficiency review, we view all of the evidence in a neutral light, and we will set the verdict aside only if the evidence is so weak that the verdict is clearly wrong and manifestly unjust, or the contrary evidence is so strong that the standard of proof beyond a reasonable doubt could not have been met. A clearly wrong and unjust verdict occurs where the jury's finding is manifestly unjust, shocks the conscience, or clearly demonstrates bias. The charge authorized the jury to convict the appellant of capital murder, as a party or a conspirator, under either of two theories: (1) the murder of a peace officer acting in the lawful discharge of an official duty, with knowledge that the victim was a peace officer; or, (2) murder in the course of committing or attempting to commit robbery. Because the trial court's charge authorized the jury to convict on alternative theories, the verdict of guilt will be upheld if the evidence was sufficient on any one of the theories. The appellant first argues that the State failed to prove that he knew the victim was a peace officer. This argument is refuted by the appellant's own statement, which says in pertinent part:Rivas got into the vehicle and drove it around to the back of the store. I heard Rivas on the radio say let[']s load it up. It was about this time that I seen [sic] the patrol car. He had entered from my right. Immediately I heard on the scanner suspicious activity at the Oshman[']s. I got on the walkie talkie and telling [sic] them to abort the police were here. I was on the radio continuously. I never got off the radio. I gave precious [sic] location of the patrol and direction he was traveling. He traveled from my right to my left. He was just cruising. He passed the Oshman[']s store and then picked up speed and went around back. I radioed, "he's coming around the corner, leave, leave."The appellant next argues that he "did not anticipate the shooting and wanted only to be away from the scene." In support of his argument, he points to the testimony of witness Michael Simpson and his own statement. Simpson testified that he heard a voice on the radio telling Rodriguez and Garcia, "Come on, we got to go. We got to go. We got company." The appellant said in his statement that he told the escapees to "abort" and to "leave." The appellant, however, also said in his statement: "My purpose was to if pursued by the police I was to initiate firefight with the AR 15." The appellant acknowledged in his statement that he knew the escapees who entered Oshman's were armed and planned to steal more guns from the store. The evidence viewed in the light most favorable to the verdict was sufficient for a rational jury to find beyond a reasonable doubt that the appellant should have anticipated Officer Hawkins's death. The evidence viewed in a neutral light was not so weak that the verdict was clearly wrong and manifestly unjust, nor was the contrary evidence so strong that the beyond a reasonable doubt standard could not have been met. The evidence was both legally and factually sufficient to convict the appellant of capital murder. Points of error nine, ten, eleven, and twelve are overruled. In points of error thirteen and fourteen, the appellant alleges that the evidence is legally and factually insufficient to support an affirmative answer to the anti-parties special issue:
Do you find from the evidence beyond a reasonable doubt that the defendant, PATRICK HENRY MURPHY, JR., did not actually cause the death of the deceased, Aubrey Hawkins, but intended to kill the deceased or another or anticipated that a human life would be taken?The appellant argues that the evidence is insufficient to show that he anticipated that a human life would be taken. The appellant again points to his written statement and Simpson's testimony as evidence that he only intended to "abort" the robbery and to "leave" the scene. He asserts that his intentions were confirmed by Rivas's punishment phase testimony that minimized the appellant's involvement in the Oshman's robbery. However, Rivas admitted that he had committed perjury three times in the past, and there were some discrepancies between his testimony and the appellant's statement. Rivas portrayed himself as the mastermind who planned the prison escape and the robberies, and described the appellant as merely a "lookout" during each event. The appellant said in his statement that they made a group decision to rob Oshman's after they "weighed the pros and cons," and that the escapees were "pretty much equal." Rivas testified that the appellant was hesitant about the Oshman's robbery. The appellant explained in his statement, "What I didn't like was so many employees," and, "Being familiar to Irving I knew [police] response was very quick." The appellant stated that he was "to initiate firefight" with the AR 15 if pursued by police, but Rivas denied that this was part of the plan and testified that the weapons were in the Suburban simply because he did not want to leave them in the hotel room. The jury was free to take these discrepancies into account and to believe or disbelieve any portion of Rivas's testimony based on their evaluation of his credibility. The appellant, by his own admission, participated in the planning of the Oshman's robbery, prepared his weapons, and programmed police frequencies into his radio scanner. He knew that the escapees were armed and was uneasy about the large number of Oshman's employees and the possibility of a quick police response. He alerted the escapees when Officer Hawkins arrived and gave them Hawkins's precise location as he drove around to the back of the store. He believed that he was "to initiate firefight" if pursued by police, and thus a rational jury could find that he anticipated that the other escapees would do the same. The evidence viewed in the light most favorable to the verdict was sufficient for a rational jury to find beyond a reasonable doubt that the appellant anticipated that a human life would be taken. The evidence viewed in a neutral light was not so weak that the verdict was clearly wrong and manifestly unjust, nor was the contrary evidence so strong that the beyond a reasonable doubt standard could not have been met. The evidence was both legally and factually sufficient to support the jury's affirmative answer to the anti-parties special issue. Points of error thirteen and fourteen are overruled.
C. Challenges for Cause
In points of error one through six, the appellant alleges that the trial court improperly denied his challenges for cause against six venire members: Brad Richards, Don Jones, Louise Marker, Carol Cunningham, Maribel Willis, and Robert DeRossett. The appellant alleges that these venire members were challengeable for cause under Article 35.16 because they were biased either against the appellant or against some phase of law upon which he was entitled to rely. To preserve error for a trial court's erroneous denial of a challenge for cause, the appellant must show that: (1) he asserted a clear and specific challenge for cause; (2) he used a peremptory challenge on the complained-of venire member; (3) all of his peremptory challenges were exhausted; (4) his request for additional strikes was denied; and, (5) an objectionable juror sat on the jury. The appellant has properly preserved error with respect to each of the challenged venire members. When the trial judge errs in overruling a challenge for cause against a venire member, the defendant is harmed if he uses a peremptory strike to remove the venire member and thereafter suffers a detriment from the loss of the strike. Because the appellant received one additional peremptory challenge, he can demonstrate harm only by showing that the trial court erroneously denied at least two of his challenges for cause. When reviewing a trial court's decision to deny a challenge for cause, we look at the entire record to determine if there is sufficient evidence to support the ruling. We give great deference to the trial court's decision because the trial judge is present to observe the demeanor and tone of voice of the venire person. When a venire member's answers are vacillating, unclear, or contradictory, we accord particular deference to the trial court's decision.Brad Richards
The appellant argues that Richards was biased against him because he was one of the "Texas Seven" escapees. He asserts that Richards "had a definite opinion that an accomplice should not receive the death penalty, but after learning the trial would involve a member of the `Texas Seven' he completely reversed his view on an accomplice receiving the death penalty." The prosecutor initially asked Richards his opinion regarding an accomplice receiving the death penalty in the following exchange:Q. Do you think accomplices should be prosecuted and ultimately receive the death penalty, depending on the facts, or would you only reserve the death penalty, if it was up to you, for the actual triggerman?
A. I think it would just depend on the evidence. But I would be more inclined to — I mean, I guess the circumstance could be, you know, brought down to where say maybe the getaway driver and the guy that's holding the money, maybe those three made a pact they are not going to kill anybody, if something like that were to come out, and he on his own, did that. I would probably be more inclined, the guy that was just bagging the money and getaway driver, you know, maybe not the death penalty for those.Q. Okay.
A. That's not to say I don't believe in it. That's what I put on my questionnaire. I think there are circumstances that even accomplices would be associated with capital, you know, crime, such as you described that they might not be charged with the death penalty.
Q. Is it something that you believe that if it were up to you, we could make you king of Texas or Governor of Texas, king of Texas, and if you were to decide about our death penalty laws, would you have a death penalty for an accomplice or would you put it just for the triggerman, the person that actually caused the death?
A. I think that I would probably be more inclined to have it for the triggerman.Q. And would not have it for the accomplices? A. No. The prosecutor then asked Richards about his statement on his jury questionnaire that he had seen the media coverage of the "Texas Seven" cases. Richards stated that he did not follow the cases closely. The prosecutor asked him if knowing this was a "Texas Seven" case would affect him in any way, and Richards replied, "I don't think it would." The prosecutor again questioned Richards regarding the death penalty for an accomplice:
Q. Okay. Now, let me get back to this accomplice business. Saying what you said that if it was up to you, you probably wouldn't have the death penalty for an accomplice. I will, also, tell you this now, that we're prosecuting the defendant under the theory of parties as an accomplice, not the actual triggerman.
Knowing how you feel about that, do you think then, you could ever assess the death penalty to someone who is not the actual triggerman, but just an accomplice situation?
A. I think I could. I think before I answered it, it would just depend on the circumstances and the evidence that was, you know, provided.* * *
Q. Okay. Let me ask you, then, if it gets down to it, you do feel, then, in the prosecution of someone who is not the actual triggerman, a party to the offense, an accomplice to the offense, that you could, if the evidence showed you, sentence him to death, even though, you know, he's not the triggerman?A. Yes. Defense counsel complained to the trial court that Richards "flipflopped" on "whether or not an accomplice was death worthy" after learning that the case was one of the "Texas Seven." Contrary to the appellant's assertion, Richards did not have "a definite opinion that an accomplice should not receive the death penalty," and then completely reverse that opinion after learning that the appellant was a member of the "Texas Seven." Before the prosecutor brought up the topic of the "Texas Seven," Richards acknowledged that he was "more inclined" to reserve the death penalty for the actual triggerman, but stated that he could sentence an accomplice to death depending on the circumstances and evidence. After the prosecutor brought up the "Texas Seven," Richards continued to state that he could sentence an accomplice to death depending on the circumstances and evidence. The trial court did not abuse its discretion in denying the appellant's challenge for cause on this basis. The appellant also complains that Richards "indicated that his moral code of conduct would be stronger than the Court's instructions." Defense counsel questioned Richards about this issue during the following exchange:
Q. It's been a while since you filled this [jury questionnaire] out. One of the questions was, "Do you agree with the following statement?" And the statement was, "Regardless of what the Judge says the law is, the jury should do what they believe is the right thing." And you wrote, you checked the box that said yes. And you explained it by saying, "If I believe strongly that something is right, I'm going to go with my instincts."And I just want to explore what you meant by that. A. And the question was about doing —
Q. Basically, was some people think that or regardless of what the Judge says the law is, in other words, whatever the law is, jurors should do what they believe is the right thing to do.
A. Okay. I must have misinterpreted that question. I mean, if I served on the jury and I took an oath, I would do everything based by the law and not my own personal, you know, feelings.Upon further questioning by defense counsel, Richards reiterated that he "misread" or "misinterpreted" the question, and that he "would obey what the law told him to do." Defense counsel explained that Richards' "sole job as a juror" was "to decide whether the State has proven their case beyond a reasonable doubt," and that as a juror he would take an oath to hold the State to that burden. Defense counsel continued to question Richards as follows:
Q. Now that I have explained it that way, would you be more concerned about doing what you thought was right —
A. No. I would be more concerned with how the evidence was presented.
Q. And then after it was presented, would you still hold the State to their burden and make them prove their case beyond a reasonable doubt?A. Yes. Q. And make them prove those Special Issues? A. Yes. Defense counsel argued to the trial court that Richards demonstrated a bias in his answers to the questionnaire and on voir dire and indicated that "his moral code of conduct would be stronger than the Court's instructions." The trial court denied his challenge for cause, stating:
Court finds that when Mr. Richards was explaining the law and had an opportunity to explain his answers he provided on the questionnaire, on further reflection he had acknowledged to the Court that he understands the law. The Court finds this juror to be qualified.The record supports the trial court's ruling. The appellant has failed to meet his burden to show that Richards had a bias or prejudice that would have substantially impaired his ability to carry out his oath and instructions in accordance with the law.
Don Jones
The appellant argues that Jones was challengeable for cause because he would place the burden of proof on the defense to prove that the defendant would not be a future danger. When he was first questioned by the prosecutor, Jones acknowledged that he would not automatically answer the future dangerousness special issue in the affirmative if the appellant were convicted of capital murder. He agreed that he would listen to the punishment evidence and then decide whether the State proved beyond a reasonable doubt that there was a probability of future dangerousness. When defense counsel asked Jones if he would automatically be persuaded that the appellant would be a future danger if he were convicted of capital murder, Jones replied, "No, I would have to hear the other facts before I could make that determination." Defense counsel continued to question Jones on the issue. The appellant relies on the following exchange between defense counsel and Jones to support his argument on appeal:Q. But would you need to hear anything from the defense, in order to make up your mind about probability? I mean, would you need to hear something?A. Yes, I would. Q. Okay. Can you elaborate on that?
A. Yeah. Well, yeah, there again, I would need to know some background information.
Q. So don't let me put words in your mouth, please, because that just makes us stay here longer. Would you want to hear from the defendant himself about his background or his —
A. I don't think I would have to hear from him, but I would think the defense would want to give some kind of explanation.
Q. Okay. Then if you — keeping this a hypothetical jury, on this hypothetical jury, after the jury has found somebody guilty of capital murder and you have either maybe you heard something from the State or maybe the State has not put anything on, because you can just consider the crime itself, of course, for that answer. Some capital murders will effectively answer the future dangerousness question without too much problem. In your mind, you would need to hear from the defense, in order to answer that question no?A. Yes.
Q. I think that's fair enough. So you need to hear a little bit from both sides —A. Right. After defense counsel's examination of Jones, the trial court explained to him that the law requires the State to prove the future dangerousness issue beyond a reasonable doubt, and that "[t]he defense has no burden to put on any evidence at all." Jones indicated that he understood, and the trial court continued:
THE COURT: You said that you understand that concept. And one of her questions, would you like to have some evidence from the defendant or would you like to hear him testify? You answer was, no, I don't have to hear from the defendant, but I might — I can't remember the exact word. I would like to hear from the defense or I would think you would hear something from the defense before I could answer that question no.
Do you understand, sir, that they can sit there and do crossword puzzles, they don't have to present any evidence at all? It's the State's burden to prove to you beyond a reasonable doubt Special Issue No. 1 and 2.[JONES]: Okay. I guess I misunderstood.
THE COURT: Now that you understand the law, could you answer Special Issue No. 1 yes or no, depending on the evidence you hear from the State?[JONES]: Yes, I could answer that one. When the trial court explained the law to Jones, he admitted that he had been confused and agreed that he could follow the law requiring the State to prove the future dangerousness special issue beyond a reasonable doubt. The appellant has not shown that Jones had a bias that would have substantially impaired his ability to carry out his oath and instructions in accordance with the law.
Louise Marker
The appellant argues that the trial court erred in denying his challenge for cause to Marker because she would shift the burden of proof to the appellant to disprove the anti-parties special issue, and she would automatically answer "yes" if she found the appellant guilty of capital murder. Marker first indicated that she understood the prosecutor's explanation of the anti-parties special issue and the State's burden of proof. However, when she was questioned by defense counsel regarding the anti-parties special issue, she expressed confusion and vacillated in her answers:Q. Okay. And the law — the law doesn't require us to do it. But what I'm hearing from you is you would need to hear something from us to answer that question no?
A. If I have already decided he's guilty, yes, I would have to hear something that would show that he did not intend.
Q. I hope I haven't confused you . . . That's the law, that we don't have to. But in your mind you want to hear from us. You are just answering how you really feel about that. Is that a fair statement?
A. Well, I mean my understanding, right. You don't have to give anything. You don't have to — from what I understand from what they said, you absolutely don't even have to say a word during the whole thing and they have to prove all of this. Well, that would, also, if they could not prove these things, then I would not answer that question in that direction.Q. All right. And that's fair. But then I asked you —
A. But if you are going to start, if you are going to talk, I would expect that you would be supporting what you want me to know and you would probably bring up something that maybe they didn't know. I mean, that's — but if you are not going to talk, they are going to have to prove to me all of these things, answer those things.* * *
Q. Some people say to us, actually, if I have already found them guilty of capital murder, I've already found, you know, that they should have known that this was going to happen. And to me they did anticipate that a human life would be taken. I would say yes to that question without even needing to hear anything else from the State or from the defense. I've already answered that question yes in my mind when I found him guilty. Is that —A. That could happen. Q. Well — A. I mean, I don't know, but that could happen. * * *
Q. And it's your testimony or answer that you would automatically answer that question yes if you had found someone, found the defendant guilty of capital murder in the first part of the trial?A. That's what I said, yes. Defense counsel then challenged Marker for cause because she "expressed the inability to follow the scheme and has predecided Special Issue No. 2," and the trial court directed Marker to be brought back for further questioning. Marker expressed some confusion in response to defense counsel's questions, but indicated an understanding of the anti-parties special issue and the State's burden of proof when the trial court explained it to her:
THE COURT: But anticipated that a human life would be taken, there's a — it's a filter. There's a capital scheme in saying we're going to reserve the death penalty for those people who actually caused the death, intended to cause the death, or anticipated that a human life would be taken. It's a higher burden. So the law contemplates that simply because you found someone guilty of capital murder — and then examples they're using as an accomplice.[MARKER]: Uh-huh.
THE COURT: You step back and you answer that question, did their mental state go to that higher level to impose a death sentence? It's a filter. Does that make some sense?[MARKER]: Yeah, that makes a lot of sense.
THE COURT: Okay. The parties, is that a decent explanation? Okay. Her question to you is, are you capable of stepping back and reviewing all the evidence, whether there's more or not provided to you, and filtering these facts, whatever the facts may be, to determine whether or not the State has proven this additional or higher burden of did anticipate that a human life would be taken?
[MARKER]: And you want my answer? Yes, I could do that.Defense counsel reiterated his challenge for cause, and the trial court denied it, stating as follows:
You know, if you let people just talk and she's answered to both of the issues of contention here, I told you that an hour ago. And her last response is yes, I could consider a life sentence. And with what she does on dealing with complex issues on a daily basis, I have a very good feeling that if she understands the law, if it's given to her and she has any more than 30 minutes to deal with it, that she does understand the law and would be able to follow the law. She's just told us that she could consider a life sentence, even though having found 1 and 2 to be in the affirmative. She's gone back and forth.But, there again, if you get her to back up and understand the program here, I find that she is capable as exhibited in her own words that she can understand the law and can follow it. The record supports the trial court's ruling. Marker vacillated in her answers, but ultimately stated that she understood and could follow the law when the trial court clearly explained it to her.
Carol Cunningham
The appellant argues that the trial court should have granted his challenge for cause to Cunningham for several reasons. He first alleges that she was biased in favor of the death penalty. On direct examination by the prosecutor, Cunningham agreed that she was in favor of the death penalty for certain crimes and stated that she "believe[d] in the death penalty, if it's needed." She replied in the affirmative when the prosecutor asked her if she was the type of person that "could take pen in hand" and answer the special issues "in such a way that may lead to the execution of another human being." She explained: "I just — I just have strong convictions about that. It's not an opinion that I have, but a conviction. I think life is very precious. But there are consequences to all of our actions and it's just the way I feel about it." She later acknowledged that she could keep an "open mind" with regard to the special issues, she could consider evidence of mitigation, and she would not prejudge or automatically answer the questions based on what she heard during the guilt phase of the trial. When examined by defense counsel, Cunningham initially stated that the death penalty would be her "first choice" for a defendant convicted of capital murder, but she acknowledged that she "would have to take into account the special issues." Upon further questioning, she expressed some confusion and vacillated as to whether she could keep an open mind with regard to the special issues. She then stated in response to trial court questioning that she would listen to the punishment evidence and that she "could certainly go with life imprisonment" if warranted by the facts. When defense counsel later questioned her about the mitigation special issue, she stated, "I believe that life imprisonment needs to be taken into consideration," and agreed that she could answer the question in such a way that would result in a life sentence. The appellant next alleges that Cunningham was challengeable for cause because "she stated she would consider the parties to have the same intent based on the actions of the triggerman," pointing to Cunningham's testimony in the following exchange with the prosecutor:Q. And some people we talk to, if it were up to them, you know, they may feel very strongly in favor of the death penalty for the triggerman, the guy that pulled the trigger. But if it was up to them, they wouldn't have the death penalty available as an option for those accomplices. For whatever reason, religious, moral, or ethical, they just don't feel a death sentence would be justified for those accomplices that didn't actually take the life.
And some people feel differently, you know. They would keep that option available for both the triggerman or the nontriggerman. Where do you kind of come down on that issue?
A. Well, I don't know if this is a valid reason or not, but if you accompany somebody who does pull the trigger, to me you are equally as capable of doing that, even though you may not have done it at the time.
Q. Okay. So, you wouldn't automatically take the death penalty off the table for the accomplice, the person that didn't actually cause the death. Is that kind of what I hear you saying?A. Right, yes, sir. Upon further questioning by the prosecutor and defense counsel, Cunningham indicated an understanding of the anti-parties special issue and stated that she would hold the State to its burden to prove beyond a reasonable doubt that the appellant anticipated that a human life would be taken. Finally, the appellant alleges that Cunningham was challengeable for cause because she investigated the appellant's case on the internet. Cunningham stated that she looked up the "Texas Seven" on her computer after she had appeared in the trial court four months earlier. Cunningham stated that "[i]t was a one-page thing on the Internet" which consisted of "a little picture of [the appellant] and a couple of paragraphs." She stated: "About the only other thing I remember about that was it seems like that he had a history of previous offenses, and I can't remember what they were." When the prosecutor asked her if what she read would affect her as a juror in the case, she replied: "I don't think that would have any bearing on the case." When the prosecutor asked her if she could put aside any opinions or impressions and base her verdict only on the evidence presented at trial, she responded: "Put it aside? Yes." Defense counsel continued to question Cunningham on the matter:
Q. Okay. Well, and based on what you found out as part of your curiosity, what opinions have you formed about him before we even start trial?A. I really didn't, I just didn't have any opinions.
Q. Have you formed the opinion that he has been in lots of trouble before?A. I don't know about lots, but — Q. But some? A. That's what I read.
Q. Okay. And before you start the trial, of course, you know, it's going to be hard to get that out of your mind. You're going to know that going in and you're going to be thinking that while you're listening to the evidence.
A. Well, I think, I don't mean to make a blanket statement, but I think a lot of people who are guilty of things like that, probably have been involved in other things in previous, you know, previous years, could have. So that's not anything surprising or shocking to me.* * *
Q. And, you know, it sounds to me like you have already formed at least some opinion about Mr. Murphy before we've even started this case. Would I be fair in saying that?A. I guess you could say that.
Q. And, of course, you would, you know, it's kind of hard to unring the bell, once you've heard something. I mean, that would, you'd know that once you were sitting over there in the trial and it could affect you in some way. We don't know now how it could, but it could. Would that be fair to say?A. Yes, sir. At the conclusion of Cunningham's voir dire, defense counsel argued that she had a "clearly stated bias in favor of the death penalty" and "she would consider the parties to have the same intent based on the actions of the triggerman." The trial court found her to be qualified, stating that the totality of the examination showed that she understood and could follow the law. Defense counsel argued that Cunningham read about the appellant on the internet and formed an opinion about the facts of the case and the appellant's criminal history. The trial court again found her to be qualified, stating in pertinent part:
I believe she was quite honest in her proffer that, hey, after the questionnaire, I did go look on the Internet and find out his name and recognized his picture with the beard. But, you know, I can set that aside. If she is on the jury, obviously, I will instruct her, as I have done in the past in writing and today, that she's not to look at anything further, from any source or don't discuss this case with anyone. I believe she understands that.She said that she could make a decision based on the evidence she hears in open court. She is — once again, once she understood the law she, said, yes, I could set that aside and base my decision on the evidence I heard in court. The record supports the trial court's ruling. Cunningham expressed that she would require the State to prove beyond a reasonable doubt that the appellant anticipated that a human life would be taken. She also demonstrated that her belief in the death penalty and her knowledge of the appellant's criminal record would not substantially impair her ability to carry out her oath and instructions in accordance with the law.
Maribel Willis
The appellant asserts that Willis did not understand the special issues because she told defense counsel she would assess a life sentence if she had a reasonable doubt about the appellant's guilt:Q. You stated when I asked you what you — whether you would feel comfortable with a life sentence . . . and you said, well, if I had a doubt about something, I would give life. Right? Is that what you said?A. Correct. Q. Okay. Would we need to show you anything? A. No. Q. Okay. What would you need to have a doubt about?
A. Well, if the State didn't prove something that you are saying that he is innocent on, that they didn't prove that he was guilty, then there's where the doubt is.
Q. Okay. So you would give life instead of death if he wasn't proved guilty beyond a reasonable doubt?A. Correct. Defense counsel then explained that "the question of death or life is not in the first part of the trial," and that if the appellant was found guilty of capital murder, then he would receive a life sentence unless the special issues were answered in a certain way:
Q. And then you have to make other determinations to give them a death sentence. And those other determinations are these Special Issues we've been discussing. The law says that life is automatic, unless these Special Issues are answered this way. I think I hear you saying that your feelings are that if you wrote the law, the death sentence would be automatic, and it would have to be proved that the person should get life. Is that a fair statement?A. No. Q. Well, you wrote in your questionnaire —
A. I know what I answered. I misunderstood the question on that. But the law says that if you find him guilty, you automatically get a life sentence, but there should be other extenuating circumstances that should merit — mete out the death penalty.Q. Right. A. Good.
Q. Now, in your heart of hearts do you think that you can do that and really give him a life sentence, if the State failed to prove any of these things?A. If the State failed to prove, yes.
Q. Okay. And would you make them prove these to you beyond a reasonable doubt?A. Yes. Defense counsel then questioned Willis regarding the anti-parties special issue. Defense counsel asked, "And if that person didn't actually cause the death, what are you called upon to decide?" Willis responded, "Whether yes or no, he's innocent or guilty." The trial court clarified that Willis was "using the words innocent or guilty and yes or no interchangeably." Upon further questioning, Willis demonstrated that she understood the anti-parties question and could answer it "yes" or "no." Defense counsel challenged Willis for cause, arguing that she did not understand the law and "stated unequivocally that she would give life, if she had a doubt as to whether or not he was guilty or not." The trial court disagreed and found that Willis did understand the law. The trial court's ruling is supported by the record. The totality of the voir dire shows that Willis understood and could follow the law. The trial court did not abuse its discretion in denying the appellant's challenges for cause to Richards, Jones, Marker, Cunningham, and Willis. Because the appellant has failed to show that at least two of his complained-of challenges for cause were erroneously denied, he cannot show harm on appeal. Points of error one through six are overruled. In point of error seven, the appellant alleges that he received ineffective assistance of counsel. He states: "This issue is being submitted contingently on whether this Court for any reason rules that the appellant's counsel waived any complaint in the jury selection process; if the Court does not find any waiver or other attorney error, then this issue is withdrawn." As discussed above, defense counsel preserved error on claims one through six, which we held to be without merit. Point of error seven is overruled.
D. Commitment Question
In point of error eight, the appellant complains that the trial court allowed the State to ask venire member J. Robert DeRossett an improper commitment question. Commitment questions "commit a prospective juror to resolve, or to refrain from resolving, an issue a certain way after learning a particular fact." A commitment question can be proper or improper, depending on whether the question leads to a valid challenge for cause. Commitment questions are improper when (1) the law does not require a commitment or (2) when the question adds facts beyond those necessary to establish a challenge for cause. When the law requires certain types of commitments from jurors, attorneys may ask the prospective jurors whether they can follow the law in that regard. The use of a hypothetical fact situation during voir dire is permissible if it is used "to explain the application of the law." During his voir dire questioning of DeRossett, the prosecutor explained that "[t]he law allows [the State] to prosecute not only the triggerman for capital murder and ultimately the death penalty, but also depending on the facts and circumstances, we could prosecute the accomplice, the nontriggerman." When the prosecutor began to give an illustrative example to show DeRossett "how the law works," the appellant objected to the use of "a specific fact situation." The prosecutor responded that he intended to use a hypothetical "to explain the law, not committing him to those facts." The trial court overruled the appellant's objection and the prosecutor posed the hypothetical to DeRossett:I want to talk with you a little bit about the death penalty and its application to what we call, basically, accomplices, the common term for people that didn't actually pull the trigger. And let me give you an example to kind of show you how the law works in Texas.Mr. Shook and I agree we're going to rob a bank. The plan is he's going to go in with a gun. I'm not going to be armed. I'm just going to have a bag and collect the money as he holds up the tellers. And at some point as we go to do that, for whatever reason, Mr. Shook shoots and kills the teller. And we get the money and get out of there. And ultimately we get arrested and are brought back for trial. Mr. Shook, obviously, could be convicted of capital murder, that intentional murder in the course of a robbery. Depending on how, you know, the jury answers the questions, he could receive the death penalty. The law also allows for people like me, the accomplice, the nontriggerman, depending on the facts and circumstances, to also be prosecuted for capital murder and again, depending on the facts and the answers to the questions, I could also potentially receive the death penalty. And, again, a lot of people would draw that line between the shooter and the nonshooter. What do you think about that, the death penalty for an accomplice? DeRossett indicated that he understood the law and could impose the death penalty on an accomplice. DeRossett also responded in the affirmative when the prosecutor asked the next question:
I think the way you feel is exactly what the law contemplates. There are some people that just wouldn't consider it, no matter what the facts and circumstances are. We just want somebody that can keep an open mind and follow the law.There are, basically, two different ways that I can be held responsible. If you find that I actively encouraged, directed, solicited, or aided him to commit capital murder, then I could be found guilty as an accomplice. Or if you found that we, under the law of conspiracy, if we agreed or conspired to commit one crime and during that crime, the bank robbery, Mr. Shook shot and killed the teller and committed capital murder, if the jury finds that I should have anticipated, if the accomplice should have anticipated that death, then you can find the accomplice guilty of capital murder. Does that make sense to you? The prosecutor's hypothetical did not attempt to commit DeRossett to resolve or refrain from resolving an issue on the basis of particular facts. The purpose of the hypothetical was to explain the application of the law to a capital murder case prosecuted under the law of parties. If DeRossett had stated that he could not find guilt or assess the death penalty for a non-triggerman, then he would have been challengeable for cause. The trial court did not abuse its discretion in allowing the prosecutor to ask the question. Point of error eight is overruled.
E. Admission of Oral and Written Statements
In point of error twenty-four, the appellant argues that the trial court erred in admitting the oral statements he made to Colorado Springs police officers during the hotel standoff. He complains that these statements "were the result of de facto custodial interrogation" and that the officers failed to warn him as required by Article 38.22. The appellant filed a pretrial motion in limine requesting a hearing outside the presence of the jury before the State attempted to introduce the oral statements. The trial court heard the anticipated testimony of Officers Jim Stinson and Matt Harrell and ruled the evidence admissible over the appellant's objection. Stinson testified before the jury that, when he made initial contact with the appellant on the telephone at the hotel, he told the appellant that he was with the Colorado Springs police department, that they were looking for the remaining Texas fugitives, that the room was surrounded, and that he needed to exit the room with his hands raised so they could identify him. The appellant then stated, "Well, Detective, you found us." Stinson asked, "Who is this?" and the appellant responded that he was "Patrick." At one point in their conversation, the appellant asked Stinson if he could "turn his phone into a speakerphone" because "he needed to keep his hands free." When Stinson said he was unable to fulfill that request, the appellant hung up the phone. A few minutes later Stinson called back and the appellant answered the phone. Stinson asked, "What are you doing? What's going on?" and the appellant responded, "We're watching porn." Harrell testified before the jury that he later took over the telephone negotiations with the appellant. Harrell testified that he did not try to elicit any information about the Oshman's incident, but that the appellant "brought it up on his own." The appellant told Harrell that "he was in a truck with radio contact, with an AR-15, and he was set up to do damage from behind in a stand-off situation," and that "during the Oshman's [robbery] some people acted in a wrongful manner and a police officer lost his life." In response to defense counsel's questioning on cross-examination, Harrell acknowledged that the appellant said he "wouldn't have done the Oshman's" before he said that "some people acted in a wrongful manner and a police officer lost his life." Article 38.22 applies to statements taken while a defendant is subject to custodial interrogation. Nothing in Article 38.22 precludes the admission of a statement that does not stem from custodial interrogation or that is the res gestae of the arrest or offense. A defendant is in custody if, under the circumstances, a reasonable person would believe that his freedom of movement was restrained to the degree associated with a formal arrest. "Interrogation" is defined as any words or actions by the police that they should have known are reasonably likely to elicit an incriminating response. The appellant's oral statements were not the result of custodial interrogation. He made the statements while armed and unrestrained during a standoff with police. The evidence showed that the police did not question the appellant about the Oshman's incident; instead, he volunteered that information during the course of the standoff negotiations. The trial court did not abuse its discretion in admitting the statements. Point of error twenty-four is overruled. In point of error fifteen, the appellant contends that the trial court should have suppressed the written statement he gave to Irving police officer Randall Johnson after he was arrested in Colorado Springs. He asserts that he made the statement after the long standoff with police at the hotel, that he suffered from sleep deprivation and a lack of food, and that he was inadequately clothed in cold weather. He argues that his resulting state of mind and physical condition made him unable to comprehend and voluntarily waive his Miranda rights. An inquiry into the waiver of Miranda rights "has two distinct dimensions." First, the waiver must be "voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception." Second, the waiver must be made "with a full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it." However, the "Constitution does not require that a criminal suspect know and understand every possible consequence of a waiver of the Fifth Amendment privilege." It is enough that the suspect "knows that he may choose not to talk to law enforcement officers, to talk only with counsel present, or to discontinue talking at any time." Johnson and the appellant both testified at the hearing on the motion to suppress the appellant's statement. The evidence showed that the hotel standoff began at around 7:00 p.m. on January 23, 2001, and lasted until approximately 4:00 a.m. on January 24. The appellant was then transported to the Colorado Springs Police Department, where he met with Johnson and another Irving police officer in an interview room. Johnson read the appellant his Miranda warnings and the appellant agreed to waive his rights and give a statement. Johnson began taking his statement at 4:21 a.m. The appellant dictated his statement while Johnson wrote it down, and the taking of his statement lasted approximately two and one-half hours. He was given the opportunity to read and make changes to his statement before signing it in the presence of a civilian witness. The appellant testified that he did not understand the Miranda warnings, and that he would not have made a statement if he "had a chance to rest or perhaps Miranda had been explained to [him] in more detail." He testified that the hotel standoff was stressful and that he "had been operating on adrenaline" with "very little rest" before he was taken into custody. He testified that he had not slept for twenty hours and he was fatigued, drowsy, and "would nod out" at times during the interview. Johnson testified, however, that the appellant was awake and alert during the entire interview and he never looked as if he were about to fall asleep. Johnson acknowledged that the appellant was not wearing a shirt, but denied the appellant's assertion that he was "shivering" during the interview. The appellant testified that he began crying at one point, but Johnson denied that the appellant was crying or upset during the interview. The appellant testified that he had not eaten for sixteen hours, but he did not remember asking for any food. He testified that he received a soft drink and two bathroom breaks, and that no one ever threatened him or promised him anything in exchange for his statement. He acknowledged that he understood his Miranda warnings when he was arrested on two prior occasions in 1984. He also acknowledged that he understood his Miranda warnings when TDCJ investigators later questioned him after his interview with Johnson, but explained that he had the opportunity to sleep for a few hours before the TDCJ interview. He testified that he would have consulted an attorney before speaking with Johnson if he had had access to one, but acknowledged that he later agreed to continue talking with TDCJ investigators without counsel even when they informed him that an attorney was there for him. The trial court found that the appellant was interviewed shortly after the standoff ended, that it "defie[d] logic" that the appellant "was on an adrenaline rush just an hour before and no longer able to stay awake during this interview." The trial court also found that he understood his Miranda rights when he was arrested in 1984 and when he was interviewed by TDCJ investigators following his interview with Johnson; that he was not threatened, coerced, or promised anything in exchange for his statement; and that he chose not to consult with counsel during the TDCJ interview. The trial court did not abuse its discretion in finding that the appellant "freely and voluntarily made an informed decision to waive his rights and to provide the statement." Although the appellant and Johnson gave conflicting testimony, the trial court was entitled to believe Johnson. In the same point of error, the appellant also claims that "his written statement was obtained in violation" of Article 38.22 and "he did not knowingly and intelligently waive his constitutional right to counsel before giving his statement when police denied access to [him] by the public defender attorney assigned to his case and provided for by Colorado statute." These arguments are multifarious and inadequately briefed. The appellant generally asserts a violation of his "constitutional right to counsel," but fails to make a clear and concise argument in support of a Sixth Amendment claim. With regard to his Article 38.22 claim, he fails to allege exactly how Article 38.22 was violated. He also failed to object to his written statement on the basis of Article 38.22 at trial. Point of error fifteen is overruled. In point of error sixteen, the appellant alleges that he received ineffective assistance of counsel. He states that "[t]his issue is being submitted contingently on whether this Court for any reason denies request to take judicial notice and/or finds any form of waiver or attorney error in this issue." To prevail on a claim of ineffective assistance of counsel, the appellant must show (1) deficient performance and (2) prejudice. To show deficient performance, the appellant must prove by a preponderance of the evidence that counsel's representation fell below the standard of professional norms. To demonstrate prejudice, the appellant must show a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Judicial scrutiny of counsel's performance is highly deferential, and the appellant must overcome the strong presumption that counsel's actions were sound trial strategy. Counsel failed to object at trial on the basis of Article 38.22, but the appellant fails to explain on appeal exactly how Article 38.22 was violated. The appellant complains that counsel failed to supplement the record with evidence showing that the admission of his statement violated his constitutional right to counsel, but he fails to raise a separate, clear, and concise "right to counsel" argument on appeal. Without more, he cannot demonstrate deficient performance and prejudice as required by Strickland. Point of error sixteen is overruled.F. Lesser Included Offense
In his seventeenth point of error, the appellant complains that the trial court erred in refusing to instruct the jury on the lesser included offense of murder. We use a two-pronged test to determine whether a defendant is entitled to an instruction on a lesser included offense. The first step is to determine if the lesser offense is included within the proof necessary to establish the offense charged. The first prong of the test is satisfied here because murder is a lesser included offense of capital murder. The second step is to determine if there is some evidence that would permit the jury to rationally find that if the defendant is guilty, he is guilty of the lesser offense but not the greater offense. The jury was authorized to convict the appellant of capital murder, as a party or a conspirator, under either of two theories: (1) the intentional or knowing murder of a peace officer acting in the lawful discharge of an official duty; or, (2) an intentional murder in the course of committing or attempting to commit robbery. The appellant is entitled to a requested lesser included offense charge if a rational jury, after considering each of the alternative theories of commission, could convict him only on the lesser included offense. The appellant argues that he was entitled to a charge on the lesser included offense of murder because "there was no evidence of the specific intent to kill," but this was not required because the jury was instructed on the law of parties. The evidence showed that the appellant intended to promote or assist the commission of the offense or that he should have anticipated Hawkins's death as a result of carrying out the conspiracy to commit robbery. The appellant participated in the planning and execution of the Oshman's robbery and alerted the other escapees when Hawkins arrived in his patrol car and drove around the back of the store. The evidence would not permit the jury to rationally find that the appellant was guilty only of murder. The appellant has thus failed to meet the second prong of the test. Point of error seventeen is overruled.G. Enmund Objection
In point of error eighteen, the appellant alleges that his capital murder conviction is unconstitutional under Enmund v. Florida, a case in which the Supreme Court held that the Eighth Amendment does not permit imposition of the death penalty on "one who aids and abets a felony in the course of which a murder is committed by others but who does not himself kill, attempt to kill, or intend that a killing take place or that lethal force will be employed." The appellant specifically alleges that "[t]he trial court erred in overruling [his] objection to the jury charge concerning the applicability of Sec. 7.02(b) (conspirator liability) of the law of parties as being contrary to the constitutional requirements of Enmund v. Florida, which requires that there be specific intent of the accused to kill or to cause the loss of life." The appellant's reliance on Enmund is misplaced. Enmund prevents imposition of the death penalty under certain circumstances; it does not prohibit a capital murder conviction for a non-triggerman under the law of parties. Point of error eighteen is overruled.H. Request for Election
In points of error nineteen and twenty, the appellant argues that the trial court erroneously denied his request to require the State to elect which theory of capital murder and which theory of party liability it sought to rely on for conviction. As discussed above, the charge authorized the jury to convict the appellant of capital murder, as a party or a conspirator, under the alternative theories of murder of a peace officer or murder in the course of committing or attempting to commit robbery. The appellant claims that the trial court's denial of his request for an election denied him his right to a unanimous jury verdict. There is no general requirement that the jury reach agreement on the preliminary factual issues which underlie the verdict, such as the manner and means by which one offense was committed. The appellant was charged with one offense, the capital murder of Aubrey Hawkins. The alleged theories of culpability and party liability were merely alternate methods or means by which the appellant committed one charged offense. Points of error nineteen and twenty are overruled.I. Independent Impulse
In point of error twenty-one, the appellant claims that the trial court erroneously denied his requested defensive charge on independent impulse. Relying upon Mayfield v. State, he claims that he was entitled to such an instruction because he was charged as a conspirator and "the evidence shows that [he] participated in some wrongful conduct but he did not contemplate the extent of the criminal conduct by his companions." As we explained in Solomon v. State, there is no enumerated defense of "independent impulse" in the Penal Code. The appellant's proposed defensive issue would simply negate the conspiracy liability element of the State's case. All that is required is for the appropriate portions of the jury charge to track the language of Section 7.02(b) of the Texas Penal Code. Solomon overrules Mayfield to the extent that it holds to the contrary. The jury charge on conspiracy liability in the instant case properly tracked the language contained in Section 7.02(b). Point of error twenty-one is overruled.J. Jury Argument
In point of error twenty-two, the appellant claims that the trial court erred in overruling his objection to the prosecutor's prejudicial closing argument during the guilt phase of the trial. The appellant asserts that the prosecutor improperly argued outside the record as follows:[PROSECUTOR]: [Hawkins] was surrounded and they ambushed him. They lured him in. And the only reason they were able to do that is because of [the appellant]. You can call him all kinds of things. He was their lookout, he was their guardian angel.
I'm reminded, you know, this year we've had troops over in Iraq fighting and we saw it on the news all the time. They talk about the guys that are on the ground.
[DEFENSE COUNSEL]: I'll have to object to arguing outside the record.
THE COURT: Overruled at this time. Be careful, Mr. Shook.
[PROSECUTOR]: Air controller, the guys that are out there and can target our bombs. They put the laser on the individual, the air, the building, whatever. And that allows airplanes to come in, the precision bombing. That's what Mr. Murphy is. He allows them, he lets them know there's a police officer here. He gives them details. He's going out front. He's coming around back.Generally, permissible jury argument falls into one of four areas: (1) summation of the evidence; (2) reasonable deduction from the evidence; (3) an answer to the argument of opposing counsel; or (4) a plea for law enforcement. A prosecutor has wide latitude in the language and manner of arguing the State's case consistent with the evidence. A prosecutor may also use an analogy to emphasize and explain the evidence. The appellant admitted in his statement that he acted as "backup and lookout," sat outside the Oshman's store in a Suburban loaded with weapons, monitored police frequencies on his radio scanner, alerted the escapees when Hawkins arrived and told them his precise location as he drove around to the back of the store, and was prepared to "to initiate firefight" with the AR 15 if pursued by police. Given this evidence, it was not improper for the prosecutor to compare these actions to a military ambush. Even if we were to assume error, the prosecutor's argument did not affect the appellant's substantial rights. The argument was not extreme or manifestly improper, nor did it inject new and harmful facts into evidence. Point of error twenty-two is overruled.