O P I N I O N

I. Miranda violation claim.

A. The evidence at the guilt-innocence stage.

We begin with a summary of the evidence. The victim was appellant's eighty-three-year-old great-aunt, Berthena Bryant. Despite her income of less than $500.00 a month, Bryant occasionally made small loans to various people, including appellant, and she kept a ledger recording the loans and their repayments.

On September 10, 1999, Bryant told her sister, Mattie Long, that she had refused appellant's request for a loan earlier in the day. Long testified that Bryant seemed uneasy about her conversation with appellant.

The next morning, Bryant's body was discovered in her home by neighbors. A bloody, broken baseball bat was recovered at the scene. Bryant's car was located a half mile from her house and her purse and wallet were found in the car. The medical examiner, Dan Konzelman, testified to the existence of defensive bruising on Bryant's wrists and arms. Konzelman also described Bryant's various abrasions, bruises, and fractures, which included a broken collarbone and shoulder blade, two fractured ribs, and a fracture at the base of the skull.

Appellant was arrested for outstanding traffic warrants and for possession of a controlled substance on the same day that Bryant's body was discovered. While in custody, appellant was questioned twice about Bryant's murder by Detective Ann Gates. The first interview took place on the day he was arrested. Gates read appellant his Miranda warnings when she noticed that appellant had no reaction to the news of Bryant's death. Appellant gave a statement denying any involvement in Bryant's murder and claiming an alibi. The next day, after being informed of his rights again, appellant accompanied Gates to various locations in an effort to corroborate his alibi. That same day he took a polygraph examination.

When appellant's alibi information did not check out and the polygraph indicated deception, Gates interviewed appellant a second time. Gates again read appellant his Miranda rights, appellant agreed to waive them, and appellant gave a second written statement (the "Gates statement").

In the Gates statement appellant stated that he had "another personality" named James who lived in his head. He stated that James had started living in his head since age ten or eleven when he was molested by his brother and cousin. Appellant stated that James went to Bryant's house to steal some money. After Bryant let him in and James could not find her purse, appellant stated that James lost his temper and started hitting Bryant with a bat she kept by the door. After that, James found Bryant's purse and left in Bryant's car. Appellant stated there was $30.00 in Bryant's purse. Appellant then went to a friend's house and bought drugs with the money. He later left Bryant's car in a parking lot. Appellant does not object to the admission of the Gates statement.

B. The written statement concerning extraneous murders admitted at the punishment stage.

Appellant's complaint is directed at the admission of statements he made to Texas Ranger Lane Akin nine or ten days later in which he implicated himself in two extraneous murders that were introduced at the punishment phase of his trial. Texas Ranger Richard Johnson testified at the suppression hearing that he investigated the homicides of Marc Sanders and Clark Peoples. Sanders' and Peoples' bodies were both found in the Trinity River in Wise County in the first week of June, 1999. Based on a lead from appellant's sister Keisha Jones, Johnson and Akin obtained a search warrant for appellant's residence, which was executed in the early morning hours of September 22, 1999.

Akin left during that search to meet with appellant at the Tarrant County Jail, together with a Tarrant County Sheriff's deputy, in the early hours of the morning. Akin informed appellant that he was investigating the murders of Sanders and Peoples. Appellant admitted having known the victims, but denied any involvement in their murders. Akin then asked appellant what he would say if "they" (meaning Akin and his fellow investigators) told him that they had already talked to appellant's good friend, Ricky "Red" Roosa, and that Red had told them that appellant was the "bad guy," primarily responsible for the murders.

At that point, appellant orally admitted his involvement in the two murders. As appellant confessed and described details of the offense, Akin wrote down "verbatim" what appellant said on a statement form, asking questions and transcribing the answers as they went along. The entire interview lasted about an hour-and-a-half. When appellant finished his story, Akin got up, sat down next to appellant, and went over the legal rights that appeared at the top of the written form. Then Akin and appellant read the statement together and appellant corrected mistakes, initialed revisions, and signed the statement at the bottom. Appellant's written statement (the "Akin statement") appears in the Appendix to this opinion.

C. The failure to Mirandize appellant before interrogating him led to constitutional error in the admission of his written statement at trial.

D. This constitutional error was harmless beyond a reasonable doubt.

We focus upon the probable impact that admission of this statement had upon the punishment phase. Had the Akin statement concerned the capital murder offense for which appellant was charged or had it been admitted during the guilt-innocence stage, this Court would be hard-pressed indeed to find it harmless error. However, the fact that the statement was offered only during the punishment stage does affect our analysis because, at the punishment stage of a capital murder trial, the issue is not whether appellant did or did not commit the Sanders and Peoples murders.

John Williams testified that appellant had dated Williams' mother, Paula Freeman, since Williams was nine years old and that appellant had lived with them for several years. Williams testified that one day, while his mother was at work, appellant told him to go to a friend's house because appellant might "do something bad that he would have to go to jail for." Williams and his little brother went to a neighbor's house a block away. When Williams returned to his house, appellant and Ricky "Red" Roosa (who had been with appellant before Williams left) were gone but there were dark brownish spots on the carpets and walls that appeared to be blood. A criminologist for the DPS Crime Lab testified that tests confirmed the existence of human blood on the walls, carpet, and on and under the cushions in the couch at appellant's residence.

David Walker with the Wise County Sheriff's Department testified that they had few leads after several months of investigating the Peoples and Sanders murders. The first lead came when Keisha Jones, appellant's sister, told her own probation officer, after her brother's arrest, that appellant "knew something" about the murder of Peoples and Sanders. After speaking with Keisha, Walker began preparing an arrest warrant for Ricky "Red" Roosa, and Rangers Akin and Johnson obtained a search warrant for appellant's residence.

Keisha Jones' testimony of what appellant had told her about the double murder was fully admissible and mirrored, to a large extent, appellant's written statement to Akin. In both, appellant admitted his participation in the murders, yet minimized his own role. In both, appellant said Red was the main actor and the actual killer of Peoples and Sanders. In both, appellant stated that Red hit Peoples in the head with a barbell. In both, appellant stated that the victims arrived in a car which was used to transport the bodies away from appellant's residence after the murders.

Keisha's testimony added: 1) that Red made an explicit threat against appellant; 2) that she initially told police that Sanders was forced to sit on the couch and watch Peoples' murder; and 3) that she initially told police that appellant's and Red's motive for the murders was robbery. Although appellant's statement to Akin added more detail to the events surrounding the double murder, appellant's voluntary, noncustodial statements to his sister constitute an unequivocal admission of his participation in Peoples' and Sanders' deaths.

The defense also called psychologist Dr. Raymond Finn who had interviewed and evaluated appellant. Finn acknowledged appellant's participation in Sanders and Peoples murders and agreed that appellant's behavior in those murders was manipulative "to some extent."

The State called several witnesses in rebuttal, including Dr. Randall Price, a clinical and forensic psychologist, who had interviewed and evaluated appellant. Price testified about a psychopath's view of right and wrong and discussed appellant's failure to accept responsibility for his actions as one of the stronger traits of a psychopath. He pointed to appellant's blaming of his alter ego, James, for Bryant's death and his blaming of Red for Sanders' and Peoples' deaths. Price also testified that appellant did a "double denial of responsibility" when he told Price that "James wouldn't have killed his aunt if Red hadn't made him help kill Sanders and Peoples." Appellant told Price that he chose to go along with Red because of his desire to get drugs, but that it was Red's idea to kill Sanders and Peoples. Appellant admitted to Price that he felt worse about killing Sanders because he and appellant were childhood friends.

Substantial evidence was introduced of appellant's membership in the Hoova Crips gang. Photographs of appellant's many gang-related tattoos were admitted into evidence. A Fort Worth police officer with experience in the police department's gang unit testified at length about the gang significance of appellant's tattoos. He described nearly all of the tattoos as referring to the Five Deuces Crips gang or the Hoova Crips gang. Thus, even without the two extraneous murders, the evidence of a brutal murder, of multiple assaults, and of gang membership supports the jury's conclusion that appellant was a future danger and that mitigating circumstances did not warrant a life sentence.

We look also to the content of the erroneously admitted statement. Although appellant admitted his participation in the two extraneous murders in the Akin Statement, that statement was replete with self-serving assertions of how Ricky "Red" Roosa was the primary actor and appellant simply did what Red told him to do. When discussing the actual murders, appellant stated:

When little Boo [Clark Peoples] walked in, Red, Ricky, hit him, little Boo, with a barbell. He hit him more than three times. Little Boo was hollering. He fell to the floor. Red told me grab him and hold him. I held little Boo down while Red choked him with his hands. Red started hitting little Boo harder and harder. Red was hyped from this shit. Red told me to bring a belt to tie little Boo. I took a braided leather belt out of my pants. Red tied little Boo with the belt. Red told me to help move little Boo out of sight. We moved little Boo into the back room. ... Marc [Sanders] came in the house and Red hit him in the head with the barbell. Red was mad because it took Marc a long time to give up. Red kept on hitting Marc until he fell. Red took the barbell a[nd] pushed it down against Marc's neck. He told me to bring something to tie Marc up with. I brought him a white extension chord [sic]. We tied him up.

Appellant stated that after both men were dead, he helped Red put their bodies into Peoples' car and Red told appellant where to drive the car to dispose of the bodies in a river. While this statement contains some details that were not otherwise testified to by other witnesses as set out below, it contains a wealth of mitigating facts about appellant's role in the double murders. If believed, it diminishes and limits other evidence of appellant's participation in the extraneous murders. It also supports the basic defensive theory at the punishment stage that it was Red's bad influence that set appellant down the path toward his alter ego's murder of his aunt.

The issue of voluntariness is before you again. The issue of voluntariness of the defendant's statement, and I want to address that head-on with you.... I put together here every piece of evidence that will show you how many times the defendant was specifically given Miranda warnings.... And no fewer than one, two, three, four, five, six, seven times from September 11 to September 21^st did the defendant have someone go over his adult warnings with him. I imagine he was qualified, at that point, to give them to somebody else. I would imagine he knew them by heart by then.

But let's say one or two or three of you decide that you don't like the way Ranger Akin took the statement. For those of you who decide that, you know that [appellant] admitted everything to Keisha. And you have her testimony on that issue, too. So that one shouldn't hang you up at all. Whether you come down on the side that, yes, it was a knowing waiver, he had six, seven opportunities to hear those before he talked to the Ranger; or, no, it wasn't voluntary, and you want to go off on what Keisha had to say.

The second prosecutor pointed to the Akin statement as evidence refuting the notion that appellant was surprised when Red killed Peoples:

And counsel for the defense says, well, it was a surprise to this defendant that Red or Ricky Roosa, was going to kill Clark Peoples. Well, you know in his statement, and I ask you to look at his statement, because what he says is Ricky Roosa asked me, do you know anyone with money. And that's where it begins.

Although we find this reference to the erroneously-admitted statement somewhat troubling, it was a response to the defense closing argument concerning appellant's minor role in the double murder and more of a rhetorical flourish ("And that's where it begins") than any disparagement of the defensive theory.

II. Claims concerning jurors.

A. Claim concerning the discharge of a juror.

In his second point of error, appellant claims the trial court erred by refusing to grant appellant's motion for mistrial upon learning that a juror knew, and would be affected by knowing, the father of the victim of an extraneous murder presented at punishment. During the guilt or innocence phase of trial, juror David Guminski reported that he recognized Ed Sanders, who was present in the courtroom, as a former coworker. Sanders was the father of Mark Sanders, but Guminski was not aware of Sanders' connection to the case. Addressing the court in chambers, Guminski stated that he had not formed any opinions about Sanders as an audience member or a witness and did not believe he would be biased one way or the other. On the basis of this information, appellant asked the court to discharge Guminski or, alternatively, to grant a mistrial. The court asked the parties to brief the options over the weekend. Upon reconvening, appellant proposed that no evidence be offered about Sanders' son. Appellant also asked that he be allowed to question Guminski to determine possible bias. Appellant concluded by asserting that the only real remedy was a mistrial. The court denied his motion for a mistrial, but granted his request to call Guminski for additional questioning.

Guminski testified that Sanders had been his supervisor at the Colonial Country Club. He stated that they were on friendly terms at work, but did not have a social relationship, and that he had not had any contact with Sanders in the past year-and-a-half. Guminski testified that he had "a little bit of uneasiness" about knowing a potential witness and further stated that if he were to learn that Sanders had suffered some type of loss, he would probably have more empathy toward him than he would toward a stranger. Appellant renewed his motion for mistrial and, in the alternative, asserted that Guminski was "impaired."

The court denied his requests, and Guminski was questioned further. Guminski explained his uneasiness as the result of worrying that he had overlooked Sanders' name on the witness list. He also testified that although he believed he could be impartial, he could not help "but think a little bit of empathy is going to leak out in [Sanders'] favor." Appellant re-urged his motion for mistrial as the only appropriate remedy. As an alternative, however, appellant requested that Guminski be excused. The court granted appellant's alternative request and excused Guminski. Appellant now claims on appeal that the remedy of discharge was inappropriate because bias is not a disability under Article 36.29(b).

Appellant's point of error complains of the trial court's failure to grant his motion for mistrial. Appellant does not, however, present any argument or authority in support of his claim that the mistrial should have been granted. Appellant has therefore failed to adequately brief this mistrial issue. Tex. R. App. P. 38.1(h).

B. Claim concerning the definition of "criminal acts of violence."

In his third point of error, appellant claims the trial court erred by instructing a prospective juror that the definition of "criminal acts of violence" includes a threat of violence. During appellant's voir dire of a prospective juror, the following exchange occurred:

[Defense counsel]. I want to point out one other thing. We are not talking about - it says the probability is, would he commit criminal acts of violence. It does not say, with threats of violence. It doesn't say, would get in fights. It said, would commit criminal acts of violence. That means a criminal act involves violence. Common words are your use and understanding. You understand it does not say a threat of violence or was there misconduct. It has to be a criminal act of violence.

[Prosecutor]. Judge, I am going to object. I think I am going to object because I think act does include speech, and certainly a threat of violence may be a criminal act under the law.

The trial court sustained the State's objection, and upon a motion by the State to instruct the juror to disregard, the court instructed the juror:

The jury will be looking at acts of violence and inasmuch as a threat involves conduct, it could be an act of violence depending on what the jury decides.

Appellant objected to the court's instruction, arguing that a threat was not a criminal act of violence. The court overruled appellant's objection.

After properly reminding the venireperson that the jury would be "looking at acts of violence," the remainder of the instruction clarified that it would be in the discretion of the jury to decide whether a threat involves conduct and, if so, whether it would then constitute an act of violence. This instruction is consistent with the language of the issue. The trial court did not err in giving the instruction. Point of error three is overruled.

C. Claims concerning denial of writs of attachment for prospective jurors, a continuance, or a motion to quash panel.

In his fourth point of error, appellant claims the trial court erred in denying his application for writs of attachment requiring the appearance of prospective jurors who submitted purported disqualifications on unsworn juror cards, contrary to jury selection procedures. In point of error five, appellant claims the trial court erred in denying his motion for continuance to provide time for the process of service for the sought-for writs of attachment. In point of error six, appellant claims the trial court erred in denying his motion to quash the jury panel due to the alleged noncompliance with jury selection procedures. Appellant briefs these points together.

Several members of the venire mailed in juror cards claiming disqualifications. Appellant complained about allowing mail-in exemptions and disqualifications, pointing out that some of the mail-in prospective jurors had simply marked the disqualification they claimed on the front of the juror cards without signing the affirmation swearing to the veracity of the claimed disqualification. Appellant claimed this procedure violated statutory provisions, and he sought a writ of attachment, a continuance to allow time to summon the absent prospective jurors, and a quashing of the affected panel.

III. Arrest and search issues.

In his seventh point of error, appellant claims the trial court erred by admitting evidence seized during his arrest pursuant to an allegedly illegal arrest warrant. Appellant argues that Judge Larry Reed, who issued the capias pro fine traffic warrants upon which appellant's arrest was based, did not have probable cause because he lacked personal knowledge that the fines were not paid.

Municipal Court Judge Larry Reed testified that he signed the capias pro fine warrants calling for appellant's arrest due to his failure to pay the fines imposed for various traffic offenses. He explained that he reviewed the file in each case. Each file contained a complaint and judgment. Each judgment stated that appellant was found guilty of the offense, set forth the amount of the fine assessed, and provided the due date. Judge Reed testified that after reviewing each judgment to verify dates and numbers, if the file contained no notation, receipt, or documentation from the clerk stating that the fine assessed had been paid, he would then determine the amount of the increased fine and issue the capias pro fine. Judge Reed further testified that he had been a municipal judge for over four years and had worked as a city attorney for fourteen years prior to that. Judge Reed testified that he reviews approximately 600 to 800 files a week for failure to appear or failure to satisfy the judgment in traffic offense cases and that this was the standard procedure in all such cases.

Given his years of experience in the procedures of the municipal court and his knowledge as to the reliability of the system and the operation of the clerk's office, Judge Reed made an adequate determination that there was a reason to believe the judgments had not been satisfied in appellant's cases. The trial court did not abuse its discretion in concluding that probable cause existed to issue the arrest warrant. Point of error seven is overruled.

In his eighth point of error, appellant claims the trial court erred in admitting the evidence obtained as a result of the allegedly illegal search of the Hyundai in which he was a passenger immediately before his arrest. Appellant argues that the search of the Hyundai was not made pursuant to a lawful arrest or a valid need for officer safety.

In his ninth point of error, appellant claims the trial court erred in admitting evidence seized from his residence. Appellant argues that the search was illegal because it was conducted pursuant to consent from a third-party who appellant claims lacked authority to allow a search of appellant's personal effects.

Paula Freeman owned the house searched. Freeman testified at the suppression hearing that appellant was her boyfriend and that he had lived with her off-and-on for a couple of years. Freeman testified that, on the day after Ms. Bryant's murder, she agreed to let the officers search the house, and she knew that they were searching for appellant's clothes and shoes. Specifically, she testified that the officers were looking for clothes matching a description she herself had given them of the clothes appellant wore on the night of Ms. Bryant's murder. Freeman stated that she understood that the items would be seized if found. Freeman testified that she did appellant's laundry at her house and that she sometimes wore appellant's clothes. The officers seized some of appellant's clothing and a photograph of appellant and Red Roosa.

IV. Challenges for cause and excusal of venirepersons.

In point of error ten, appellant claims the trial court erred by overruling a challenge for cause against a venireperson who viewed a mere threat of violence to be a criminal act of violence. In point of error twelve, appellant claims the trial court erred in denying appellant's challenge for cause against a prospective juror on the ground that the juror would define "criminal act of violence" as including a property crime with no attendant violence.

Veniremember Ginny Smith testified that a criminal act of violence meant "murder or . . . a violent crime [such as] rape and stabbing." When asked by defense counsel whether a threat to kill someone would be enough or whether a "mere threat" would be sufficient to constitute a threat to society, Smith stated that it would. Appellant moved to challenge Smith on the ground that a threat did not amount to an act of violence, and that such a definition decreased the State's burden of proof. The trial court denied the challenge.

In appellant's eleventh point of error he contends that the trial court erred in denying his challenge for cause against a venireperson who appellant claims would automatically answer the first special issue in the affirmative unless the defendant was physically incapacitated. Venireperson Hollis Woolsey initially testified during voir dire by defense counsel that once the defendant was found guilty of capital murder, he would consider that person to be a continuing threat. Woolsey testified that he would answer the issue in the negative if the defendant was physically incapacitated in some way such as being in a wheelchair or being "60 years old and diabetic." When asked by defense counsel whether the defendant would have to be physically incapacitated, Woolsey responded "probably." However, when the State explained that he could not automatically answer that issue in the affirmative based only on a finding of guilt, but would have to consider all of the evidence, Woolsey agreed that he would do so.

In his thirteenth point of error, appellant claims the trial court erred by granting a venireperson's excuse from service for an economic reason, outside the presence of appellant and his counsel. Summoned venireperson Sean Cerone submitted a letter to the court asking that he be excused from jury duty on January 11, 2001, and suggesting other dates that he could serve:

This letter is in response to a juror summons I received on December 21 to serve as a juror Thursday January 11, 2001. I am requesting to be excused for that date due to the fact that I am a dentist in a private practice setting and have no one available to cover my patient appointments. With that relatively short notice, I already have a full day of patients scheduled that day and cannot reschedule them without extreme difficulty and hardship to both them and myself. I would be very willing to commit to a jury summons in the near future when I can better arrange my patient scheduling responsibilities and care for my patients while I would be out.

My office generally schedules approximately 8 weeks out, so may I suggest March 30, 2001, or April 6, 2001, as dates when I can properly arrange my office schedule to allow for adequate care of my patients. I appreciate your understanding in his matter. Please reply.

V. Claims concerning the constitutionality of the Texas death penalty statute.

Apprendi is inapplicable to Article 37.071. Apprendi applies to fact findings that increase the penalty beyond the "prescribed statutory maximum." Under Article 37.071, the "prescribed statutory maximum" is fixed at death. There are no statutory enhancements. A jury finding on the mitigation issue does not have the potential of increasing the penalty beyond the prescribed statutory maximum, rather it has the potential for reducing the prescribed statutory maximum to a sentence of life imprisonment. Point of error sixteen is overruled.

The judgment of the trial court is affirmed.

Cochran, J.

Delivered: November 5, 2003

Publish

*****

13. Both the State and the concurrence stress the number of times appellant had been warned by Officer Gates and a neutral magistrate concerning his Miranda rights in relation to the murder of Ms. Bryant to show that he did not need to be warned again by Ranger Akin concerning his rights in relation to the murder of Sanders and Peeples. It is true that "the mere passage of time" does not, by itself, automatically obviate prior Miranda warnings.

The cases cited by the concurrence are very appropriate to, and might well be dispositive of, this issue had the interrogation been by Officer Gates about Ms. Bryant's murder. See Ex parte Bagley, 509 S.W.2d 332, 335 (Tex. Crim. App. 1974) (same A.D.A. gave multiple warnings; all questioning concerned one offense); Gorman v. United States, 380 F.2d 158, 164 (1^st Cir. 1967) (repetition of Miranda warnings before requesting consent to search unnecessary because we "see no reason in policy or precedent automatically to borrow a procedure adapted to one set of constitutional rights at one stage of a criminal proceeding and apply it to a quite different right, serving quite different purposes, at another stage); People v. Hill, 233 N.E.2d 367, 369 (Ill. 1968) (same officer, same offense; defendant made a "delayed" response to officer's initial question); Maguire v. United States, 396 F..2d 327, 330 (9th Cir. 1968) (three days; same offense, different officer); United States v. Springer, 460 F. 2d 1344, 1352, (7^th Cir. 1972) (same offense; same FBI agent; same warnings, but 1^st were oral and 2^nd written); Biddy v. Diamond, 516 F.2d 118, 122 (5^th Cir. 1975) (12 day lapse of time did not destroy effectiveness of original Miranda warnings when defendant was warned by same officers earlier, released, officers had multiple contacts with defendant at her home, and she later made a statement to her husband in front of officers at station after they reminded her of their earlier warnings); Johnson v. State, 324 So.2d 298, 302 (Ala. Crim. App.), cert. denied, 324 So.2d 305 (Ala. 1975) (same officer, same offense, reminder about warnings given three days earlier); State v. Gilbreath, 487 P.2d 385, 386 (Ariz. 1971) (same offense, apparently same officers, no need to repeat warnings given 12 to 36 hours earlier because no "circumstances which might alert the officers that an accused may not be fully aware of his rights"); Jackson v. State, 375 N.E.2d 223, 225 (Ind. 1978) (stating that defendant's statement was not the result of interrogation, but "[e]ven if warnings were required, the earlier warnings were sufficient in light of the defendant's clear recognition of his right to remain silent. He conditioned his statement upon the presence of the prosecutor, showing he knew of his right to remain silent, and was waiving that right"); State v. Russell, 261 N.W.2d 490, 492-93 (Iowa 1978) (statements made in ambulance and three days later in hospital admissible after deputy had Mirandized defendant twice at arrest scene, and different officer reminded defendant of those earlier warnings and defendant stated he remembered and wished to waive them); State v. Brown, 601 S.W.2d 311, 314 (Mo. App. 1980) (same officers, same offense, after reminder of rights given three days earlier, defendant waived rights and gave statement); State v. Blanchey, 454 P.2d 841, 845 (Wash., Dept. 2 1969) (same offense, prior warnings by Canadian officials, fresh warnings by state detectives, but woven into conversation, defendant told detectives that he understood his rights and gave statement); Kroger v. State, 17 P.3d. 428, 431-33 (Nev. 2001) (same offense, second officer knew defendant had already been warned and defendant told officer she had been warned before); Mitchell v. State, 982 P.2d 717, 722 (Wyo. 1999) (same offense, officer reminded hospitalized defendant of warnings given by another officer several hours earlier and began to summarize them when defendant said he remembered and was willing to talk); DeJesus v. State, 655 A.2d 1180, 1195-96 (Del. 1995) (same officers, same offense, six-minute break in interview).

15. Id. at 315-16; see also id. at 309 (expressing concern for errors made by law enforcement in judging whether suspect is in custody or in administering proper Miranda warnings).

27. Tex. R. App. P. 44.2(a); see Cain v. State, 947 S.W.2d 262, 264 (Tex. Crim. App. 1997).

28. See Chapman v. California, 386 U.S. 18, 24 (1967) (under constitutional error analysis, reviewing court must reverse unless it is "able to declare a belief that [the error] was harmless beyond a reasonable doubt"); Satterwhite v. Texas, 486 U.S. 249, 258 (1988) (applying Chapman harmless error standard to admission of unwarned statement to psychiatrist at punishment stage of defendant's capital murder trial).

29. McCarthy v. State, 65 S.W.3d 47, 55 (Tex. Crim. App. 2001), cert. denied, 536 U.S. 972 (2002).

30. Id.

31. Tex. Code Crim. Proc. art. 37.071, §§ 2(b)(1) & 2(e)(1).

32. Satterwhite, 486 U.S. at 256 (quoting Delaware v. Van Arsdall, 475 U.S. 673, 681 (1986)). In Satterwhite, the Supreme Court noted that "the evaluation of the consequences of an error in the sentencing phase of a capital case may be more difficult because of the discretion that is given to the sentencer." Id. at 258. Nonetheless, we, like the Supreme Court, believe that reviewing courts "can make an intelligent judgment" about whether the erroneous admission of a statement taken in violation of Miranda might have affected a capital sentencing stage. See id.

33. United States v. Polanco, 93 F.3d 555, 562-63 (9^th Cir. 1996) (analyzing Miranda-Elstad error and finding it harmless because of "substantial other evidence" to prove the same fact as that contained within the defendant's improperly admitted statement). See Milton v. Wainwright, 407 U.S. 371, 372-73 (1972) (admission of pre-Mirandized statement was harmless error beyond a reasonable doubt because of the overwhelming evidence of the defendant's guilt); United States ex rel. Savory v. Lane, 832 F.2d 1011, 1019-20 (7^th Cir. 1987) (concluding that admission of testimony barred by Fifth Amendment was harmless "[i]n light of the state's otherwise strong case, the relatively limited use of tainted evidence, and the lack of probative value the tainted evidence had"); Gorham v. Franzen, 760 F.2d 786, 796 (7^th Cir. 1985) ( stating that "[w]here a confession, otherwise voluntary, is inadmissible for failure to comply with the strict procedural requirements of Miranda, reversal is not required if, on the facts in the record, the court can find beyond a reasonable doubt that its use at trial was harmless"; finding error harmless because there was other "extensive physical and testimonial evidence implicating" defendant in murder); Harryman v. Estelle, 616 F.2d 870, 876 (5^th Cir 1980) (when determining whether admission of non-Mirandized statements is harmless, reviewing court must decide whether, absent that statement, the evidence remains not only sufficient to support the verdict but so overwhelming as to establish the guilt of the accused beyond a reasonable doubt; error harmless because other physical evidence was overwhelming); Boyd v. Hawk, 965 F. Supp. 443, 448 (S.D.N.Y. 1997) (stating that "[a] constitutional error arising from use of evidence is harmless if a jury would have reached the same guilty verdict without hearing the additional, unconstitutionally obtained evidence").

34. See, e.g., Harrison v. Owen, 682 F.2d 138, 141 (7^th Cir. 1982) (citing Milton and Schneble and stating that defendant's improperly admitted statements were harmless when other, admissible evidence, whose truth was unchallenged, proved the same facts and was "entirely consistent" with the defendant's statements); Germany v. Estelle, 639 F.2d 1301, 1303 (5^th Cir. 1981) (admission of statement obtained in violation of Miranda harmless error in light or other admissible evidence and fact that statement did not contradict either of defendant's defenses).

35. This is precisely the tenor of appellant's statement to Ranger Akin.