Victims' kin won't witness execution

Feb. 6, 2007

Ethel Farley opposed the death penalty — until her daughter and two teenage granddaughters were strangled in their home, one at a time. Although that experience a decade ago changed how she feels about execution as punishment, Farley does not plan to be in Huntsville on Wednesday when James Lewis Jackson is scheduled to die for the slayings. "Bad memories," she explains, "that's all it would be."

On April 9, 1997, Farley and another daughter found Sharon Jackson, 39, and her two daughters, Ericka Mayes, 18, and Sonceria Mayes, 19, dead in their north Houston apartment. Sharon, a data entry clerk at the Harris County Clerk's Office, and her daughters had been placed in their beds and covered with sheets.

On a dresser in one of the bedrooms, police found a note, signed by James Jackson, Sharon's husband and the girls' stepfather. It said he loved the women but could not take care of them because he didn't have a job. "I gave them back to God," the note read. "He and they will understand."

Police shortly later arrested Jackson, a 6-foot-7, 280-pound crack addict. After 12 hours of questioning, he confessed to killing the women, one after another, as they arrived home after school and work, because Sharon had planned to divorce him.

Claim of innocence

Jackson, now 47, says he's innocent. In a recent interview at death row in Livingston, he denied committing the murders, saying he did not come home that night and returned instead the following morning to find his family dead. He said his wife had no plans to end their relationship. He dismissed the note detectives found as a prayer he had written asking God to protect his family. As for Jackson's oral confession, his trial attorney Donald Davis said during trial that he made the statement while under duress from lengthy questioning.

Jackson argued it would have taken more than one man to kill three women. "It's just a lot of things that don't make sense," he said.

Prosecutors, though, said it was possible for him to do it alone because he killed them one at a time. "That's a very personal type of death, when you strangle somebody with your own hands," said Lyn McClellan, who prosecuted Jackson for the state. "If the death penalty wasn't made for him, then I don't know who it was made for."

Appeals exhausted

His attorney, Kenneth Williams, a law professor at the University of Miami, said Jackson has no more avenues for appeal. The U.S. Supreme Court last month refused to hear his latest appeal, which argued that Jackson's right under the Eighth Amendment to submit mitigating evidence had been violated when the trial judge denied his request during the sentencing phase to allow jurors to hear from his family about how the execution would affect them.

Convicted of killing both Ericka and Sonceria, Jackson never was tried for the murder of his wife or for raping Ericka, though she was found naked from the waist down.

Even before the murders, Jackson had a history of family violence. In the early '90s, he served time in a prison in his hometown of Dallas for shooting the grandfather of the woman he was dating, the mother of his two children. After Jackson was paroled, he moved to Houston, where he met Sharon Jackson, a Harris County employee who family members said was deeply religious. "She was a beautiful person. She was a church-going lady," Sharon's sister, Jackie Ross, said through tears. "I think that's what attracted him to her."

Seeking a divorce

The couple married in 1995, but Jackson couldn't keep a job and spent countless nights away from the apartment using drugs. The morning of the murders, he said in his confession, Jackson's wife told him she wanted a divorce. According to Jackson's confession, he committed the murders in succession: he first asked his stepdaughter Ericka, a high school senior who had just returned home from school, whether she would still love him if her mother divorced him. She expressed ambivalence, and he strangled her.

Soon after, Ericka's older sister Sonceria, known as Sonnie, arrived home from a local community college, where she was a freshman. Jackson asked her the same question. When she responded that she would love him regardless and tried to hug him, Jackson choked her. He then placed the women in their beds. Later Sharon called, seeking a ride home from work. Jackson picked her up, brought her to the apartment, told her the girls were asleep, then strangled her. "He took my sister's life," said Sabrina Farley. "Now he's going to have to stand in judgment with the Lord."

Fourth execution in 2007

Texas law has allowed surviving relatives to attend executions since 1996. But Farley, like her mother, does not plan to attend. The memories are too strong. Jackson would be the first person from Harris County, and the fourth from Texas, to be executed by the state this year. Texas by far leads the nation in executions since the penalty was reinstated.

James Lewis Jackson confessed that he and his wife, Sharon, argued on Monday and Tuesday, April 6 and 7, 1997, about his unemployment. On Wednesday, she told Jackson that she intended to file for divorce. She refused to talk to him on the phone at work that day. According to Jackson’s statement, “That’s when I made up my mind to just take her out, because I felt like the reason she was leaving me was unnecessary and there was no just cause for it.”

Later on Wednesday, Jackson’s step-daughter, Sonny Mayes, returned to their Houston apartment home at 2:30 p.m., and Jackson called her into the master bedroom to discuss the divorce with her. When Sonny expressed indifference about the divorce, Jackson choked her with his forearm. He then hid her body in her bed.

When Sonny’s sister, Ericka Mayes, returned home at 2:55 p.m., Jackson also called her into the master bedroom to discuss the divorce with her. Ericka told Jackson that she would love him regardless of the divorce. When Ericka approached Jackson to hug him, Jackson choked her to death, then placed her in her bed. According to Jackson, “that was cleaning up behind a wrong that I had already did.”

Shortly thereafter, Sharon phoned Jackson and asked him to pick her up from work. When she asked the whereabouts of the girls, Jackson told her that Sonny had stayed late at school and that Ericka had gone to visit her army recruiter. Sharon checked on the girls when she arrived home and thought they were asleep. She asked Jackson not to wake them because they had stayed up late the night before. After telling Jackson that she still intended to divorce him, Jackson choked her to death, as well. He then pawned her sewing machine and got high on drugs.

Family members found the bodies of the victims after Sharon Jackson did not report to work as a data entry clerk at the Harris County Clerk's office. At trial, Sharon's sister Sabrina Farley told a jury how she found their bodies in bed, as if they were sleeping. "They didn't move." Farley testified a friend said Sharon Jackson didn't pick her up for church, so she went to the apartment where a maintenance man broke a window and let her in.

James Jackson encountered law enforcement officials shortly after he arrived at the crime scene at 9:40 a.m. on April 9, 1997. Upon his arrival, the victims’ family members cursed Jackson and accused him of committing the victims’ murders. One of these family members asked Jackson what he had done to the victims. Jackson expressed no curiosity about what this family member meant by this question and he did not ask anything about the victims or why the police were in his apartment. Jackson also did not appear upset or surprised about what was going on. Another one of the victims’ family members cursed Jackson and accused him of killing the victims. Family members who continued to shout threats at Jackson.

Accordingly, Officer Gutierrez intervened and asked the family members to leave the area while he frisked Jackson, then placed him in the back seat of a patrol car without handcuffs. While Gutierrez removed Jackson from the vicinity of the victims’ enraged family members, Detective Rossi and several other deputies were investigating the crime scene in the apartment upstairs. During his first cursory inspection of the apartment, Rossi discovered a note which read: “I love Sharon, Sonny, Ericka. I could not take care of my family. I don’t have a job. I gave them back to God. He and they will understand. James.”

One of the investigating officers then spoke to Jackson in the back of the police car. When the detective asked Jackson where he was the previous evening, Jackson stated that he left the apartment at about 4:15 p.m. and did not return until his recent arrival at the scene. Jackson also stated he had a drug problem and could not keep a job. Jackson agreed to accompany the police to the homicide office to give a statement.

Jackson was transported to the homicide office in the back of a police car in handcuffs. The police told Jackson that he was not under arrest and that this was standard procedure. An officer testified that another reason Jackson was transported to the homicide office in handcuffs was for the officer’s safety because Jackson was 6'6" and weighed over 300 pounds. Jackson eventually confessed to the murders.

During the punishment phase, the State called Ira Lane Mayes, the grandmother of Ericka and Sonny Mayes. Mayes testified to the reaction of her son, Johnny Melvin Mayes, upon hearing the news of his daughters’ murders, that she and her family had to physically hold him to keep him from going to the apartment where the girls were murdered, and that she finally asked a neighbor to call 911 and request police assistance in talking her son out of going to the apartment.

She further testified that her son rolled on the ground of her home and screamed, “Just bury me in a hole, I can’t take it, I don’t have no children, I don’t have anybody anymore.” Since the death of the girls, her son had become forgetful, moaned frequently in the morning and at night, and stood in the dining room turning around and around the night before trial.

During the punishment phase of Jackson’s trial, the State introduced the testimony of Wanda Wallace, the grandmother of three of Jackson’s children. Wallace testified that Jackson dated Wallace’s daughter and fathered three children by her.

During February of 1989, Jackson introduced the woman to drugs, taking her and their three-year-old daughter over to a “drug house.” Wallace went to the “drug house” herself to retrieve the child and returned to her home with the child. When Wallace arrived home, Wallace’s husband and father were charging a car battery with jumper cables.

Wallace returned the jumper cables to the trunk of the car and walked back between the car and the van. Her sister called, “Look out, he got a gun,” and Jackson fired a pellet at Wallace and hit her car trunk. Jackson’s second shot struck Wallace’s father in the face and ear. The third shot went over Wallace’s head and hit the windows of the apartment behind her. Jackson was charged with the felony offense of injury to the elderly and received ten years in the prison.

Finally, Wallace testified that when her daughter became pregnant with their first child, Jackson was married to another woman. Jackson’s wife later died. The Texas Court of Criminal Appeals made the following comments: "Although Jackson was perturbed about his impending divorce, his state of mind does not temper the commission of a triple murder. Disguising the girls’ deaths and lying to their mother about their whereabouts were deliberate acts calculated to conceal his actions.

Further, his determination to kill Sharon on the morning after she told him that she intended to file for divorce exhibited forethought and deliberateness. These factors, coupled with Jackson’s prior criminal record, including his attempt to shoot his children’s grandmother, are evidence of an escalating pattern of violence."

Sharon Jackson "lived for the Lord and her children," according to her older sister. Ericka Mayes was a senior honor student at Aldine MacArthur High School. She was an officer in the school's Reserve Officer Training Corps and planned to join the Army. Sonceria "Sonny" Mayes was a freshman at North Harris County Community College. She was taking core requirements while deciding what degree to pursue.

Family members said James Jackson was a smooth-talking, well-muscled hulk when he swept Sharon Mayes off her feet and married her two years ago prior to the murders. She was unaware he had been a crack addict for seven years, family members said. "She said she was marrying the man of her dreams because as soon as they met they were in love," said Sharon's sister Jackie Jackson. "The first impression was good," Jackie Jackson said, "but after we found out who he really was, it turned real bad." And they said it didn't take long to find out.

Jackson lost several jobs before his wife caught on to the reason things had started disappearing around the house. He even sold her wedding ring. To support his addiction, he traded the family's televisions, a videocassette recorder and even their Thunderbird, though it was later retrieved, family members said. He was in and out of rehabilitation clinics, and his wife threatened to kick him out many times. "He was a smooth talker, buying flowers, apologizing and crying and all that," Sharon Jackson's mother, Ethel Farley, said. He still couldn't keep a job and was often seen roaming the north Harris County apartment complex, neighbors said.

On Tuesday morning, he told investigators he traded his wife's sewing machine for more crack. Sharon Jackson had bought it to make clothes for her girls. "She was such a good seamstress," Jackie Jackson said. He probably was still high when the first woman came home, Jorge said.

Family members said he had always been particularly nice to the younger girl to the point that it seemed a little strange. "He asked the girl to come into the bedroom," Jorge said. "He asked her, `Does your mother talk about our divorcing?' Apparently he didn't like what she said. "He just held her like this till she went ... ," Jorge said showing how the young woman's neck was forced into the crook of the elbow, between the bicep and forearm.

December 2004
By James Jackson # 999272

WHO KILLED MY FAMILY???..

"Remember your friends as you pass by. As you are now, so was I. As I am now, so you must be. Prepare to meet thy God in eternity."

It was a sunny day in March 1994. The air was kind of cool, but to me it was still very, very good day. I, James Jackson, was free after doing a five-year sentence, and now I was on my way to Housten City. All my life I had been putting off coming to Housten because when I was younger I would dream that if I ever went to Houston—I would die.

Upon my arrival I lived with my sister Joyce who is a year younger then I, and one of four other sisters who live in Dalles with the rest of my family. It was good to see her end my two nephews, but for some reason I was not a happy men. Something was amidst in my life, but the time I had no idea what it was...

After about a week of being in Housten, and me having to report to my parole officer once a week, I WOULD GO OUT to a club with my sister end her friend Jack. I was kind of paranoid from being incarcerated for five years, so I would just sit back and look not trying to talk to anyone. But after being there for about an hour a very sweet, high-yellow women asked me if I would dance with her. At the time I knew I was out-of­- date on my dance moves, but I said OK. And man if she didn’t back that thing up on me so serious. I had to go and sit down before too many people saw just how much she had my attention.

As we talked I found out that this lady just wanted a man to take care of her and her four kids—she had no job, and was only 19-years-old. I knew at that moment she was not the woman for me. Within that same night alone, I met four women with the same state of mind—I knew I had no reason to retum to this club.

After staying with my sister for a couple of months, I found a job in down town Houston driving a van of people to and from work their cars. It was ok, and I met a lot of nice people, but still, there was something missing in my life...

One night before going to bed I fell to my knees and told God just how lonely I really was. I asked Him to give me a different kind of women then those I had met at the club—one who does not drink, smoke, or go to clubs. After that I want to sleep and had a dream about a women whom I did not know, and these dreams would come to me every night for the next few months.

The man’s name that I worked for was Bill, and he had three daughters who were ok—but not my cup of water. The youngest was the most attractive—her name was Cathy, but I saw her as a little sister, so I was still lonely. On a Wednesday I was picking up my people when I saw this woman who was standing at the light waiting to cross the street, and I came to a complete stop in the middle of the street with my mouth wide open. The woman I saw was about 6 ft. tall, yellow, and had a coke bottle figure—she was the very same woman who had been invading my dreams for months... . As I set in the middle of the street one of the ladies behind me asked if I would like to meet Sharon. And believe me—I said YES! OH YES!

The next day when I sent my number to Sharon through her friend, I didn’t know what to think... Here was a women she had been inside of my unconscious dreams, and now here she was es big as day. I’m beginning to think that maybe I was losing my mind. A week went by and no Sharon. I saw the lady and asked her if she’d been to work. She said yes. I asked her for the number to their office and called Sharon myself.

“Hello,“ went the sweet voice on the other end, my heart almost stopping. „ This is Sharon.“ “Good morming,“ I responded. „ This is James. “ “How are you?“ she asked.“ “Would be better’“ if you would have called.“ I responded. “Well, let me exaplain. I feel that when a men gives me a pager nunber and not his home number, that he is either married or trying to hide something—so which are you doing?“

“I smiled as I thought of the reason I'd given her my pager number knowing I had a good reason for only giving her a pager number. I had no wife nor a phone at the time. None­theless, I smiled from understanding her thoughts, and knowing that was not the case.

"Sharon. I know what you are saying, but I have just moved into my own apartment and I don' t have a phone at this time." She was very understanding, so I made plans to meet with her on our lunch break the next day. I couldn't wait!

The next day came, and when I went to the administration building where Sharon worked, she was at the door waiting. As I pushed the glass door open, she smiled, but I walked on passed her. When she turned back toward door, I curiously turned around to check her out from behind, and man …she sure was fire!

After about five minutes I walked up and called her name. She turned and asked,

"Why did you pass me by? I thought, you know what I look like." " I did. And I knew it was you--I just needed to see you from behind for a few minutes," I said with a boyish devilish grin on my face. "OK," was all she said. I then took her hand and we went outside, and I told her about my dreams and my praying. She just smilled and then said she was saved; that she had been a Christian for eight years. At the time I had no idee what she was talking about. She asked me if I would go to Church with her. I said yes. That made her day.

The following Sunday I went to her apartment on the North side of Houston off of Hwy 59, and there I met her two daughters from her first marriage. Sunny at the time was 17, and Ericke was 16. We hit it off from the very beginning. As we set in Church that Sunday the preacher called alter-prayer and asked the ones who needed praying ­for to please come up. I went up. There was about six of us up front, and as she came down the line, I saw people felling to the floor, and I heard this funny sound coming from the preacher. When she got next to me I looked at her and her eyes were all white, and she was talking funny. The first thing that came to my mind was "Devil Worshipers." Before she got to me I walked out of the Church not knowing what to think--but I knew I didn't want to go back in there. Sharon came to me and asked me what was wrong. I told her, "I 'm not down with the devil worshiping!" All she could do was laugh and shake her head.

After Sharon explained to me what was going on, I started going on regular basis. After about four month wa moved intotogether (Sharon and I), and all was going well. After eight months I asked Sharon to marry me, and she said yes. We had a beautiful wedding and for a week we went to the beach for nothing but a week of love and fun.

After about two years I was working at "Western Waste" which was a trash dispoasl company. Then I went to a better job which was Housten Shell and Concrete, where I was a driver of a concrete truck for six months. After I was laid off, I then went into the streets.

I would go out at times in order to make a few dollars by gembling. I knew the game in order to survive, and being the man I am, I didn't want my wife to pay alll of the bills. I saw no other way to do my part at the time. After a few months of being back out on the streets, my wife and I went out to eat, and as we went into the restaurant I saw an old lady with white hair looking at me. When she got to me she stopped me and asked if she could talk with me. With her being an old lady, I said “Sure mother, how can I help you?"

At the moment shetook my hand and told me I was running from God; that he had work for me to do, but I was on the run. I looked over at my wife and she was looking with her mouth open shaking her head. I looked back to the woman and told her thank you, and that I would stop running. I walked her out to her car. Before she got in she said, "Son, you don't want as to whip you for not doing as He asked."

As we walked toward the building I told Sharon that she knows these people and asked them to talk with me but, all she she could do was shake her head and hold onto my hand. A few weeks passed and it was now Super Bowl Sunday. We were on our way to my sister-in-law's, and it turned out that she was his sister-in-law as well. (This man and I did some time together.)

After we got back home and were in bed, it was about 12:45 midnight when the phone rang. My wife answered it--it was her mother. We were now on our way to my mother-in-law's house. When we arrived she hugged Sharon and asked her if she knew I had been to prison. My wife told her yes, and then asked her if that was what she wanted to speak to us aout. She said yes. She thought I had married Sharon with her not knowing about my past, and at that time she would never bring my past up again.

Again three weeks after that day, I came home one morning, and before Sharon went to work she told me, " James, one day you are going to come home and the girls and me will be gone, but at that moment you won't be able to come--but you will come later on." I looked at her and asked her what she meant, and she said it just came to her in a dream. After that, she kissed me and left for work. At the moment I didn't know what to think.

The following Sunday we went to another church to visit, and as the pastor of the Church shared the gospel, it was really encouraging. But after she was finished she looked around and said, "Young man, young man, I need to talk with you." At that moment I was looking around with everyone trying to see who she was talking to. She came down and walked right up to me. I stood up, and she put her hand on my arm and said, "God has work for you to do." That was all she got out efore I was looking over at my wife and she knew just by looking into my eyes what I was thinking. "Young man, you need to stop running and submit to Christ and do his work." I said, "Yes ma'am," and set back down...

When we got home I was really upset because I thought my wife was putting these people up to telling me these things, and I told her it had to stop--now. One evening in April, as I was on my way out door, my youngest daughter Ericke asked if she could go with me. I told her no, to go and talk with her mother. I walked out the door. I made a stop to a pawnshop to add to the little bit of money I had--Iwas on my way to the gambling house. That night I ran across an old friend of mine. Her name was Kathy, and as it turned out, we ended up in a motel room, had sex and got high. I let a friend of mine use my car while I was at the motel, and after he came back I was on my way home the next morning. I was tired and sleepy. When I turn into the driveway at the apartment, there were three police cars blocking my packing space.

When I found a parking space and got out of my car, all I could see was yellow tape, and people standing around. The first thing that came to my mind was burglary. As I walked up to the first officer I saw, I saw my mother-in-law coming down the walkway. I asked her, "Why are you here so early in the morning?" She looked me in my eyes and told the officer, " This is the man I told you about, who killed a man in Dallas and went o prison for it!" Then she asked, " James, what happened lst night?" I asked her, "What are you talking about?"I just came from being out all night."

At that moment two more officers approached s, and one asked me if I was the husband of a Sharon Jackson. I said yes, that I lived in apartment 227. I then asked what's going on. I was then told by the officer, "There are three women up there in apartment 227. "In shock, pain, curiosity and desperation, I quickly turned to go up stairs hoping it was not my family that was dead in there. I was immediately stopped by an officer and was told I could not go up there--my apartment was a crime scene.

My mind immediately forced my legs to move, but at the same time, my shock would not let me move or even speak. I was taken to a patrol car and put in the back seat, and eas told that someone would be there to talk to me shortly. As we arrived at the detectives office, I was placed on a bench, and was then handcuffed to it. I was there for an hour before anyone came to talk to me. I was then placed into a small room and told that they knew who I was. I was told that I was from California, and was a member of a religious cult who had killed some of its members. I was also told that my wife and daughters had been stabbed a number of times to the head, face legs and stomach.

All I could see now was blood everywhere and I jumped up trying to leave, but was pushed back down into my chair. Now I wanted to fight, but was told that by fighting I would not be able to help my family, so I tried my hardest to control myself ( something I almost felt impossible knowing that my wife and daughters had just been brutally murdered). I was told to write out a statement of my where-abouts that night and what I did, so I did that. I was left in the room for two hours that seemed like a lifetime.

When the detectives came back I told them that I did not want to talk anymore--- I needed to go see about my family before I lost my mind (though I felt like I'd lost it already knowing they'd been brutally murdered that night!) I was told that i would be able to leave soon two or three different times. At that time I needed to go to the restroom, so one of the officers went with me--but I was not under arrest.

I did not know what time it was --there were no windows in this room. After what seemed like an eternity, one of the detectives came and told me: " In a few minutes we are going to take you back home, but first we need your finger prints in order to get your records from Dallas." I said ok.

Two hours later I was brought a stack of papers to sign, and was told that signing these papers would let their supervisorss know that I had been cleared. Wanting to get home as quickly as possible, I signed the papers, and was then told they needed to finger print me, and I was free home. As I left the office I was not handcuffed. We get down to the jail and I was to to sit down for a few minutes.

The dedective that took me down to the jail told me he would be back. Then minutes later my name was called and they took my finger prints. Afterwards I was put in a holding cell and told I didn't have long to wait. True to their word I was called into a court room--I, and two other men. My name was called again, and a lady began to read from a paper, telling me that I was being charged with Capital Murder for the deaths of my two daughters, Ericka and Sunny---by strangulation.

I told the dedectives (when he came back) that there was some mistake--I was waiting to go home! How wrong I was--I was just charged with killing my own family. The first thing that came to mind was my beloved wife's words:" One day you will come home and me and the girls will be gone."

Nine months after my entire world was shattered and stopped spinning, I was taken to court. My attorney, Donald Davis, was---to me---not a good attorney. During court proceedings my attorney and the procecutor made their opening statements, and the first witness was called. It was my wife's best friend Angel. She came and testified to me staying out at night, getting high at times, about me gambling and nothing more. My brother was called next, Artis, who testified to how my daughters loved me, and they were very smart (they were), and how much he enjoyed talking with them.

Next came one of the dedectives--one whom I had never ever seen in my life before until the day he took the stand and said that I told him I killed my wife and girls because I could not stand by and let her divorce me. He also said that theytook me to a hospital so they could take a sample of my DNA (WHICH WAS A LIE-PERJURY!)! He went on to say that I would also kill them (meaning him or his officers).

The next witness was the Medical Examiner. He came in with about 150 autopsy photos, showed a few to the jury to emotionally enflame them, and came to one of my wife's brain which had red spot of lod on the right side at the front. He said I picked her up with my left arm ( off the floor) and punched down with my right fist, which knocked her unconscious, before I strangled her to death (WHICH IS A LIE--PERJURY!)!

After the prosecutors cross examination, my attorney had no questions (ONCE AGAIN--FOR THE FIFTH TIME!). ut there was nothing I could do--I was found guilty for murder of my family in lies from dedectives, fabricated testomony from Medical Examiner, with no physical evidence linking to this heinous crime inflicted upon my beloved family, and perjured testimony from other people who did not work for the system but yet had personal vandettes against me for one reason or another.

The punishment phase was no better than the guilt/innocence phase of my trial. I had previously done some time before this—five years. I was sentenced to ten years in prison for accidentally shooting the wrong man (he was in the way).

The next person the prosecutors called was a snake from my past, Wonder Wallies, mother of my children’s mother—and the daughter of the man I accidentally shot. It was an accident. She came and told the court that I was not a good father; I WAS the cause of her daughter being on drugs, and I was trying to shoot her and her daughter because her daughter said she didn’t want to see me anymore. All I could do was drop my head and shake it at the lies she was telling on the stand. I did not try to shoot her or her daughter. I was trying to defend myself from her Mom’s husband who had pulled a rifle on me.

At the time she was testifying against me with this perjured testimony, I had no idea that her husband had died of cancer, and that the reason she was lying on me on the stand was because she knew he could not be there to tell the truth about everything. Before she got off the stand I tried to get my attorney to ask her some questions, but he got up and said, “No questions.” (I was so angry I wanted to scream “JUDICIAL RAIL-ROADING IN FULL EFFECT” in the court room!)

I took the stand afterwards, and everything you read in this story is what I told the court and Jury. As I looked over at the Jury I knew I was a dead man. Three of the women were cryin and two of the man were, too. It took my jury nine hours to sentence me to death. When the judge gave me my sentence, I turned to my mother and told her I was alright. Afterwards I was removed from the court room—and have been an Texas’ Death Row since: 8 long and hard years.

EXPLANATION OF THE FACTS

The purpose of this is to show what the legal system is like for those of us that are innocent in this Unjust Justice system here in the state of Texas and all around the U.S. With that said, please allow me just a few more moments of your time to give you a slightly different perspective to the realities—both seen, and those intentionally covered up—that are infixed in this society. It is important to remember that in dealing with a situation like this... One must stay FULLY OPEN-MINDED to the “TRUTHS”, no matter how farfetched or harsh they may sound. Truth does not change because it is or believed by a majority of the people. Panic may resent it; Ignorance may deride it; Malice may distort it—but there it is.......

First of all, I was shackled and was taken away from my home and freedom by the cops because—as they claimed—I was not under arrest, but because I was a big man! They were lyiny and going against the law. The moment they cuffed me and wanted. me for questioning I became a suspect and was under arrest. I was never read my Miranda Rights either, which made my arrest an illegal arrest. I was asked to go down to the station to answer some questions. I refused!, and told them: “Not until I find out about my family!” I was taken down for questioning and charged with Capital Murder.

2) I was given false information about what really happened to my family. First I was told that they had been stabbed which was not true—and later found out that all three had been strangled.

3) When I was being interrogated, I told the officer five times I did not want to talk with them—I really need to go and see about my family. I was told that I was not under arrest, and that I did not need an attorney present during questioning(even though I did request for an attorney to be present during questioning). To make me believe what they said they did not read me my Miranda Rights. I was told that I would only need an attorney if I was under arrest, and that I need to help them find out who killed my family. How am I supposed to know who killed my family when I was not home when it happened? And if I was not under arrest and was not a suspect, then why was I handcuffed, taken down for questioning about my whereabouts at the time of the crime, my activities, finger printed and charged with Capital Murder that same day’? If this doesn’t reek with false charges and false arrest, then I don’t know what does.

4) When I did consent to try and help them, I then wrote out all that I did that day: who I was with, what time I returned home the next day—all of this is in my handwriting in a statement. But they lied and told the court that I confessed to the crime (which is a lie), and they do not have anything of the sort from me. I wrote a written statement telling them where I was the night of my family’s murder: With a female friend. My activities and whereabouts the night my family was murdered is documented by me in a written statement. I did not confess to this crime because I did not commit this crime. And again—they do not have such a statement from me whatsoever.

5) My mother-in-law (which is my wife’s mother) told the police that I had been to prison previously for killing a man in my hometown which is Dallas, Texas, but that is not true. I was charged for a crime, but murder was not the case. I was charged with injury to a person with a fire arm, which I pleaded guilty to(it was an accident—Unintentional).

6) The Medical Examiner gave perjured testimony in my trial with his fabricated reports and testimony about how my wife died. It was said that my wife and daughters were stabbed to death. But during my trial it was said my wife was strangled before she was hit in the head as she was lifted from the floor by her throat—this cannot be true.

In the autopsy photos it showed where while my wife lied on her back her head was turned to the right, As the blood drained from her head it left a small red spot of blood at the front on the right side of the brain. If she was hit like they said she was, there would have been a knot or an injury involving rupture or discoloration to the scalp—there was none! No bruise! Nothing but the red spot of blood.

7) During my trial it was said that they could not come up with a time of death on my family, but during one of the stages of my appeals process (which of course begins after one’s trial) they came up with a time. I take that to mean that as I was out with my friend that night, the murders took place while I was out with my friend, my alibi was the truth and they know it, but since they could not find the actual killers I was simply used as a scapegoat! This is the kind of Justice Texas likes to dish out!

I was never charged with my wife’s death, only the deaths of my two daughters, who they said were also strangled all at the same time by one man—thats impossible, and down right blasphemous! How does ons man with only two arms strangle three women all at the same time? It is not possible! Yet I am accused (FALSELY) of doing this to my family!

8) The lady (which is the grandmother of my two daughters by my ex girl friend back in Dallas, Texas), Wonder Wallies, is the daughter of the man I accidentally shot while in Dallas. She came to court and told the court that I was trying to shoot her and her daughter (whith is the mother„ of my children), and this is not true! I later found out that Sam Wellies had died of cancer a few years before my trial – he was the man who I was trying to shoot. He is also Wonder Wallies husband and the father of the woman whom I have two children with. He is also the son-in-law of the man who I accidentally shot. Now do you see?

She is the wife of the man who is now dead, and the daughter of the man I accidentally shot, but came to court and said that I tried to shoot her and her daughter, which is a lie (PERJURY!)!

9) A week and a half after my trial I was called down to the medical department in Harris County Jail, while I was awaiting transfer to Death Row. When I arrived there two detectives were waiting there for me with a search warrant for my body. They were there to get a DNA sample from me. During my trial a detective told the court that they took me to the hospital to get a DNA –Sample from me (WHICH WAS A LIE).

This is why they were there a week and a half after my trial now trying to get some DNA from me—so as not to look like liars by having DNA from me. My case is not DNA related. I was never taken to the hospital before my arrest, during my arrest, or anytime after my arrest for them to take DNA from my body. If my case is not DNA related, why go through all the trouble of trying to get DNA from me? I smell a set up. What do you think?

I, James Jackson, am an innocent man an Texas’ Death row, falsely accused of murdering my family. I did not do it. I am not perfect, and in my youth I did some foolish things which I take full responsibility for. However, I am innocent of Capital Murder—I did not murder my family. And in the eight years I have been incarcerated for this case, not a day has gone by that I am not tormented by the loss of my Family. I can’t fathom what ran through their minds as they met their brutal deaths, and not being able to be there to protect them causes me many sleepless nights. Of course we had our normal family problems like any other family, things that only shows a family how strong they are, how great their love is, and why it is a blessing to have a family. Despite our problems I loved my family more than my next breath. To lose them so suddenly, and so brutally, is a deep wound in my soul that no words could ever accurately convey. And to sit here facing death, accused of killing my own family... Oh my God, one can’t even begin to imagine the pain. I myself live with it daily and still can’t find the words to explain it. I am drowning in it is all I can say at the moment! I love my family, I miss my family, and I know they are up in heaven smiling down on me waiting on me to get there—and they know(if nobody else knows) that I am innocent!

In closing I would briefly like to share a few things about the death penalty. In capital conviction cases, where the death penalty is invoked, the fundamental unfairness of the criminal justice system is especially evident.

During the past century there have been at least 415 cases of “wrongful Capital Punishment” as documented in the book, “In spite of Innocence,” by Michael Radelet. These are only a sample of the cases among those where the miscarriages of justice has already been discovered and proven.

The Economist Magazine reports that of the 5,000 cases since 1977 where the death penalty was imposed, 2,000 of those were overturned because of the incompetence of the defence counsel alone. There are no statistics of the total number of such miscarriages of justice.(Deliberate? Or coincidence? Your answer: Deliberate!) It is impossible to know the volume of undiscovered cases and the U.S. Department of Justice maintains no records of the known, proven cases. One of the problems with the death penalty is that it is irreversible.

Of the 415 cases of wrongful convictions cited above 23 people were proven “NOT guilty” too late-after their executions had already taken place. In 1993 the U.S. Supreme Court ruled that the discovery of new evidence which might prove the innocence of a death row prisoner is not to be considered a bar to execution. Once the sentence of death has been invoked it is more important to protect the system that produced the wrongful conviction than to correct an injustice and save a human life.

If the Congress were to draft legislation that would standardize the criteria for application of the death penalty based upon the manner in which the death penalty is currently applied, it would specify the following requirements:

1) The defendant must be indigent(90% of the time).

2) The victim must be white(82% of the time).

3) The defendant must be black(53% of the time).

4) The defence counsel must be incompetent(40% of the time).

5) The prosecutor must be a sadist.

6) The defendant must be uneducated.

7) The jury must be unmerciful.

The United States ranks along with China, Iran and Iraq in its uncivilized use of the death penalty. No other country in the western world is so barbaric. Even in the rest of the world only Pakistan, Saudi Arabia and Yemen execute children under the age of 18 years of age as does the United States. There are currently over 73 juveniles an death row in the United States.

As recent as 1989 the U.S. Supreme Court upheld the execution of children that are 16. Twenty-four states allow the execution of children under the age of 18. Thirty-eight states have capital punishment. The United States Supreme court and the majority of the judges that sit on its panel refuse to recognize that the death penalty is arbitrarily and capriciously applied. Or that it is cruel and unusual punishment. That it is racist and discriminatory.

That it is a violation of HUMAN RIGHTS, it denies due process of law and it is clearly unconstitutional. It is embarrassing to live in a country where the decisions of the highest judges in the land are so irrational, so unenlightened and so lacking in human decency. The Supreme court justices ought to lead society in setting the highest moral and ethical standards for the country rather than dragging society back into the middle ages.

As long as the general public continues to ignore the issues involved in the practice of executing people, this gross violation of conscience will continue. The Criminal justice system is not capable of correcting its own errors and it is not capable of leading society to accept a more civil and enlightened policy. The only way to bring about change in the policy of execution is for broad public discussion and education.

The evidence available is overwhelmingly persuasive that this is a wrongheaded policy of mad vengeance and that it is fundamentally harmful to society. It only reinstates the code of justice by bloodshed. No one is safe. There is a very real exposure for innocent people to become falsely accused, arrested, tried in court, convicted and sentenced to die. It is happening here and now (I AM ONE OF THOSE INNOCENT PEOPLE)! An enlightened society would not tolerate such an injustice. PEACE & GOD BLESS!!!!!!!

JOIN US IN OUR STRUGGLE TO OBTAIN JUSTICE, AND HUMAN RIGHTS FOR JAMES JACKSON!

James Jackson#999272
Polunsky Unit 3872
F.M. 350 South
Livingston, Texas 77351 USA

3-8-2004

Greetings my name is James L. Jackson and I have been in custody for (6) six years here on Texas Death Row for an alleged crimes I did not commit. I am a black male 6'7 with brown eyes and 44 years of age. I am making a request for a special friend, a person who would share with me my joy, hopes and pain.

I like poems do a lil drawing and like to read westerns, horrors, mystery, and fantasy books, biography, history and religion as well. I am a man who wish to be able to share his heart and soul with the right person who is willing to listen with a open mind theart if you think that that person is you please feel free to write and I will respond . May God bless you.

P.S. ... I have another poem you might like - I am going to use it when I am murder by this state call Texas.

When tomorrow starts without me

When tomorrow starts without me and I'm not there to see.

If the sun should rise and find your eyes all filled with tears for me. I wish so much you wouldn't cry the way you did today.

While thinking of many things we didn't get to say. I know how much you love me, as much as I love you and each time that you think of me I know you'll miss me too.

But when tomorrow starts without me please try to understand that an angel came and called my name, and took me by the hand said my place was ready in heaven for above and that I'd have to leave behind all those I dearly love.

But as I turned to walked away a tears fell my eye for all my life I'd always thought I didn't won't to die.

I had so much to live for so much yet to do it seemed almost impossible that I was leaving you I thought of all the yesterdays the good one and the bad I thought of all the love we shared and all the fun we had.

If I could relive yesterday just even for a while I'd say good-by and kiss you and maybe see you smile. But then I fully realezed that this could never be for emptiness and memories would take the place of me andwhen I thought of worldly. things I might miss.

Come tomorrow I thought of you and when I did my heart was filled with sorrow

but when I walked through heavens gates I felt so much at home when God looked down and smiled at me from his great golden throne he said this is eternity and all I've promised you today for life on earth is past but here it starts a new.

I promise no tomorrow but today will always last and since each days the same I have no longing for the past. But you have been so faithful so trusting and so true, I thought there were times you did some things you knew you shouldn't do but you have been forgiven and now at last you're free so won't you take my hand and hand share my life with me?

So when tomorrow starts without me

Don't think were far apart for every time you think of me I'm right there in your heart.

James Jackson, Feb. 7, 2007, TX
Do Not Execute James Jackson!

James Jackson is scheduled to be executed by Texas on Feb. 7. He was convicted in the April 1997 murders of his wife and two stepdaughters in Harris County.

The state of Texas should not execute James Jackson. Executing Jackson would constitute the ultimate cruel, inhuman and degrading punishment. Furthermore, during the sentencing phase of Jackson’s trial, the judge did not allow his family to testify about how executing Jackson would affect their lives. Also, there is a question as to whether or not Jackson’s initial arrest was legal.

Defendant was convicted in the 178th District Court, Harris County, William T. Harmon, J., of capital murder and was sentenced to death. Defendant appealed. The Court of Criminal Appeals, McCORMICK, P.J., held that: (1) even if defendant was illegally arrested when first placed unhandcuffed in back of police car, subsequent and intervening events removed to taint of allegedly illegal arrest; (2) officers had probable cause to arrest defendant upon discovery of signed, handwritten note, in which defendant stated that he had given wife and her daughters back to God; (3) arrest of defendant upon discovery of note fit exception to warrant requirement for arrests following assault of family members; (4) defendant was not entitled to jury instruction on legality of arrest when evidence was undisputed; (5) victim impact evidence was relevant to future dangerousness issue; (6) any error in prosecutor's argument regarding victim impact statement as to future dangerousness was not harmful; and (7) comparison between value of victims' lives and defendant's life in prosecutor's argument was not error. Affirmed. Meyers, J., filed concurring opinion. Mansfield, J., filed opinion concurring in part. Keller, J., concurred in part. Johnson, J., filed concurring opinion in which Price, Holland, and Womack, JJ., joined.

The offense is capital murder and the sentence is death. Appellant raises fourteen points of error. We affirm.

In point of error thirteen, appellant claims the evidence is insufficient to support the jury's affirmative finding on the “future dangerousness” special issue. Specifically, appellant argues the State failed to prove beyond a reasonable doubt that there is a probability that appellant would constitute a continuing threat to prison and free society. See Collier v. State, 959 S.W.2d 621, 623 (Tex.Cr.App.1997), cert. denied, 525 U.S. 929, 119 S.Ct. 335, 142 L.Ed.2d 276 (1998).

We are required to view the evidence in the light most favorable to the verdict and then determine whether any rational trier of fact could have found beyond a reasonable doubt that there is a probability that appellant would commit criminal acts of violence constituting a continuing threat to society. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Chambers v. State, 866 S.W.2d 9, 16 (Tex.Cr.App.1993), cert. denied, 511 U.S. 1100, 114 S.Ct. 1871, 128 L.Ed.2d 491 (1994).

The evidence at guilt/innocence shows appellant planned to murder his wife because she intended to divorce him. Appellant murdered his wife and her two daughters. Appellant manually strangled them. He later pawned his wife's sewing machine and got high on drugs.

The punishment evidence, among other things, shows appellant had been convicted of the felony offense of injuring an elderly person. Appellant shot this person in the face. Viewing the evidence in the light most favorable to the jury's affirmative finding on the “future dangerousness” special issue, we cannot say this finding is irrational. Point of error thirteen is overruled.

In point of error one, appellant claims his confession and its fruits are inadmissible because his warrantless arrest did not meet an exception to the warrant requirement under state law. In point of error two, appellant claims the trial court erroneously denied his requested jury charge which would have instructed the jury to disregard his confession if the jury found it was the product of an illegal arrest. Appellant first raised this issue in a pretrial motion to suppress. During the pretrial suppression hearing, various law enforcement personnel testified about the circumstances leading up to appellant's confession. Appellant did not testify at this hearing.

The evidence from the pretrial suppression hearing shows the victims were murdered and their bodies were discovered in an apartment they shared with appellant. Soon after the victims' bodies were discovered on the morning after the murders, appellant arrived at the crime scene while the police were processing it and conducting their investigation. The police quickly learned that appellant lived at the apartment and was married to one of the victims.

Several of the victims' family members were also at the crime scene. One of these family members asked appellant what he had done to the victims. Appellant expressed no curiosity about what this family member meant by this question and he did not ask anything about the victims or why the police were in his apartment.

Appellant also did not appear upset or surprised about what was going on. Another one of the victims' family members cursed appellant and accused him of killing the victims. The police had to separate appellant from the victims' family members who continued to shout threats at appellant. Partly because of the confrontation between the victims' family members and appellant, the police put appellant unhandcuffed in the back of a police car.

The police soon discovered a handwritten note in the victims' apartment. This note stated, “I love [the victims' first names]. I could not take care of my family. I don't have a job. I gave them back to God. He and they will understand. James.”

One of the investigating officers then spoke to appellant in the back of the police car. When the detective asked appellant where he was the previous evening, appellant stated that he left the apartment at about 4:15 p.m. and did not return until his recent arrival at the scene. Appellant also stated he had a drug problem and could not keep a job.

Appellant agreed to accompany the police to the homicide office to give a statement. Appellant was transported to the homicide office in the back of a police car in handcuffs. The police told appellant that he was not under arrest and that this was standard procedure. An officer testified that another reason appellant was transported to the homicide office in handcuffs was for the officer's safety because appellant was 6'6? and weighed over 300 pounds. Appellant eventually confessed to the murders. According to the police, appellant was not under arrest when he confessed. The trial court denied appellant's suppression motion.

The prosecution presented this evidence at trial. Appellant testified for the first time at trial that the police never let him leave the police car after he was initially put there. Appellant also testified that when the police handcuffed him for the ride to the homicide office they told him he was under arrest. The trial court denied appellant's requested jury charge on the legality of his arrest.

Appellant claims his “arrest” was illegal because it did not meet an exception to the warrant requirement under state law. His brief states: “In this case all of Appellant's statements, including the third one (the only inculpatory one) were obtained as a direct result of his illegal arrest.

From the beginning, the police had probable cause to arrest Appellant based upon the signed, handwritten note they found in plain view at the scene. Instead of taking their evidence to a judge to obtain an arrest warrant, as they are required to do by Texas law (with certain exceptions not remotely applicable here) the officers arrested appellant without a warrant and questioned him for fifteen hours until they got the confession they wanted.

Any reasonable person subjected to the police conduct in this case would have believed that he was not free to leave. The law enforcement authorities had surrounded and blocked entry to Appellant's apartment. They intercepted him as he returned home; instead of allowing him to enter his apartment they locked him in the back seat of a patrol car. Then [the police], having seen the handwritten note reading, “I love [naming the victims' first names]. I could not take care of my Family. I don't have a Job. I gave them back to God he and they will understand James,” and knowing Appellant's name and relationship to the three deceased women, came down to the patrol car and questioned Appellant.” (Emphasis Supplied).

Appellant's brief does not clearly set out when appellant claims the police illegally “arrested” him. It appears he claims an illegal “arrest” occurred when “the police had probable cause to arrest Appellant based upon the signed, handwritten note they found in plain view at the scene” and when the police learned “Appellant's name and relationship to the three deceased women.” FN1

FN1. If appellant claims an illegal arrest occurred when he was first placed unhandcuffed in the back of the police car, the trial court was entitled to find otherwise at the pretrial suppression hearing. Moreover, for the reasons that follow in the text, subsequent and intervening events such as the officers' discovery of the note removed the taint of this “illegal” arrest. See Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975); Johnson v. State, 871 S.W.2d 744 (Tex.Cr.App.1994).

We agree with appellant that “from the beginning” the police had probable cause to arrest appellant “based upon the signed, handwritten note” together with the police knowledge of appellant's name and his relationship to the victims and the other circumstances present at the crime scene. See generally Guzman v. State, 955 S.W.2d 85, 87 (Tex.Cr.App.1997) (“probable cause” determinations based on common sense and not legal technicalities).

We disagree, however, that a warrantless arrest based on this information does not constitute an exception to the warrant requirement. Article 14.03(a)(4), V.A.C.C.P., authorizes a warrantless arrest in these circumstances. See id. (police can arrest without a warrant “persons who the peace officer has probable cause to believe have committed an assault resulting in bodily injury to a member of the person's family or household”).

In addition, since the material facts leading up to when appellant claims he was “arrested” are undisputed, appellant was not entitled to a jury instruction on the legality of his “arrest.” Cf. Thomas v. State, 723 S.W.2d 696, 707 (Tex.Cr.App.1986); Moon v. State, 607 S.W.2d 569, 572 (Tex.Cr.App.1980). To the extent appellant's trial testimony raised a fact issue on whether he was illegally “arrested” when he was first placed in the back of the police car, the undisputed facts removing the taint of this illegal “arrest” also disentitled appellant to a jury instruction on the legality of this “arrest.” See id.; Footnote 1.

Finally, any error in not instructing the jury on this issue was harmless in light of appellant's handwritten note claiming responsibility for murdering the victims and the other evidence presented at trial. Points of error one and two are overruled.

In points of error three, four, and five, appellant argues that the mitigation special issue violates the Eighth Amendment. In points of error six and seven, appellant claims the “10-12” rule violates the Eighth Amendment. We have resolved these claims adversely to appellant. See Prystash v. State, 3 S.W.3d 522, 536-37 (Tex.Cr.App.1999). Points of error three through seven are overruled.

In points of error eight and ten, appellant claims counsel was ineffective for not claiming that the Eighth Amendment erects a per se bar to the admission of victim impact evidence.FN2 The Eighth Amendment erects no per se bar to the admission of this evidence. See Payne v. Tennessee, 501 U.S. 808, 825, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991); Mosley v. State, 983 S.W.2d 249, 261-65 (Tex.Cr.App.1998), cert. denied, 526 U.S. 1070, 119 S.Ct. 1466, 143 L.Ed.2d 550 (1999). Points of error eight and ten are overruled.

FN2. During the punishment phase, the grandmother of two of the victims testified about the reaction of her son to his daughters' murders. The grandmother testified that she and her family had to physically keep her son from going to the apartment where the girls were murdered, and that she finally asked a neighbor to call 911 and request police assistance in talking her son out of going to the apartment.

The grandmother also testified that her son rolled on the ground of her home and screamed, “[J]ust bury me in a hole, I can't take it, I don't have no children, I don't have anybody anymore.” Since the death of the girls, her son had become forgetful, and moaned frequently in the morning and at night. He stood in the dining room turning around and around the night before trial.

In his ninth point of error, appellant asserts for the first time on appeal that he is entitled to a new punishment hearing during which he now informs this Court he will decide whether to waive the mitigation issue. See Mosley, 983 S.W.2d at 263-64 ( dicta suggesting that a defendant may waive the mitigation issue). Appellant did not raise in the trial court a claim that he could waive the mitigation issue, so this claim has not been preserved for appeal. Point of error nine is overruled.

In his eleventh point of error, appellant argues that counsel was ineffective for failing to object to the prosecution's jury argument at punishment that jurors should consider victim impact evidence in answering the “future dangerousness” special issue. During closing argument at the punishment phase, the prosecution without objection urged the jury to consider victim impact evidence in answering the “future dangerousness” issue.

“We want you to consider the effect this crime has had on the victims, not only Ericka and Sonny and Sharon, but Johnny Melvin Mayes, their father. You could imagine how he feels now. How he must have felt that day when he found out that his only two daughters, teenage daughters were gone. He would never see them again, he would never talk to them again, wouldn't see Ericka graduate, wouldn't see them get married, wouldn't see them grow up and have children, would never experience any of those joys that we all take for granted because [appellant] took all of that away from him.

“We all hope that when we have kids, I know a lot of you have had kids already, that you're going to go before they do. How tragic it is for a parent to have to lose a child while they are still alive. Johnny Melvin Mayes had to go through that thanks to [appellant], and he lives with the loss of his two daughters everyday. You know that from what his own mother told you earlier today. We certainly want you to consider how this crime has affected Mr. Mayes.”

In Mosley, this Court decided that victim impact evidence “is relevant only insofar as it relates to the mitigation issue.” See Mosley, 983 S.W.2d at 263. Mosley also decided that victim impact evidence “of which a defendant is aware at the time he commits the crime is necessarily relevant to his future dangerousness and moral culpability.” See Mosley, 983 S.W.2d at 261 fn. 16.

It is difficult to imagine how appellant could not have reasonably foreseen the impact that the victims' deaths would have on others. The victim impact evidence, therefore, was relevant to the “future dangerousness” issue. Moreover, any error in the prosecution's argument did not harm or prejudice appellant.

The prosecution could have made the same argument with respect to the mitigation issue. And, it is difficult to conceive of the jury ignoring all the other evidence and affirmatively answering the “future dangerousness” special issue based solely on the victim impact evidence. On this record, the jury would have affirmatively answered the “future dangerousness” special issue with or without the prosecution's jury argument. Point of error eleven is overruled.

In point of error twelve, appellant argues the trial court erroneously overruled his objection to the prosecutor's jury argument at punishment that compared the value of appellant's life to the lives of the victims. The prosecution argued: “No reason to give this person a life in the penitentiary sentence because he has worked hard in this incident to earn the verdict you're going to give, the verdict the law demands, the verdict the facts demand and the verdict you will always be comfortable with whenever you rise, whenever you set, whenever you go about your business you will be comfortable that you made the right decision to give this man a life sentence to say there are mitigating factors there or to say he is not a continuing threat is to mean that his life is more important than Sharon Jackson's, than Ericka or Sonny's. [Sic].”

The trial court overruled appellant's objection that this argument was “asking the jury to make a comparative judgment based on value of life on victim versus the defendant.”

Relying on Payne, appellant argues that a prosecutor may not compare the worth of a victim to a defendant's worth. This is incorrect because Payne discourages “measuring the worth of the victim compared to other members of society.” See Payne, 111 S.Ct. at 2607 (victim impact evidence should not encourage “a jury to find that defendants whose victims were assets to their community are more deserving of punishment than those whose victims are perceived to be less worthy”); Mosley, 983 S.W.2d at 262; compare Goff v. State, 931 S.W.2d 537, 554-56 (Tex.Cr.App.1996), cert. denied, 520 U.S. 1171, 117 S.Ct. 1438, 137 L.Ed.2d 545 (1997) (defendant not permitted to present evidence of victim's homosexuality on “assumption that jury would consider a homosexual a less valuable member of society” than other members of society).

The prosecution's argument did not do this. It did not use the victim impact evidence for a purpose prohibited by Payne and Mosley. Point of error twelve is overruled.

In point of error fourteen, appellant argues the trial court erred in denying his pretrial motion to introduce testimony of his family and friends regarding their feelings on the prospect of a death sentence and the impact his execution would have on them. The trial court did not abuse its discretion to exclude this testimony. See Fuller v. State, 827 S.W.2d 919, 935-36 (Tex.Cr.App.1992), cert. denied, 509 U.S. 940, 114 S.Ct. 13, 125 L.Ed.2d 765 (1993). Point of error fourteen is overruled. The judgment of the trial court is affirmed.

MEYERS, J., filed a concurring opinion; MANSFIELD, J., filed a concurring opinion on Point of Error No. 11; KELLER, J., concurred on Point of Error No. 11; JOHNSON, J., filed a concurring opinion in which PRICE, HOLLAND, and WOMACK, JJ., joined.

*****

MEYERS, J., delivered this concurring opinion.

The majority quietly creates new law today, elevating to a holding dicta previously contained in a footnote. In Mosley v. State, 983 S.W.2d 249, 263 (Tex.Crim.App.1998), cert. denied, 526 U.S. 1070, 119 S.Ct. 1466, 143 L.Ed.2d 550 (1999), the Court broke ground in holding that victim impact and character evidence is relevant to the mitigation special issue at punishment in capital cases. But the Court took pains to note that it was relevant only to the mitigation issue: ··· victim impact and character evidence is relevant only insofar as it relates to the mitigation issue.

Such evidence is patently irrelevant, for example, to a determination of future dangerousness. Id. The Court even went so far as to state that a capital defendant could avoid the State's presentation of victim-related evidence by affirmatively waiving reliance upon the mitigation issue:

Victim-related evidence is relevant to show that the mitigating circumstances are not “sufficient” to warrant imposing a life sentence. Such evidence would be wholly irrelevant if appellant affirmatively waived submission and reliance upon the mitigation special issue···· [A] defendant can waive reliance upon and submission of the mitigation issue, and if he does, victim impact and character evidence would be irrelevant and hence inadmissible. Id. at 261.

Today's holding that victim-related evidence is relevant to future dangerousness rests on a footnote from the Court's opinion in Mosley which appears to recognize an exception to the rule that such evidence is irrelevant to future dangerousness. There, the Court noted that victim-related evidence “of which a defendant is aware at the time he commits the crime is necessarily relevant to his future dangerousness····” Id. at 261 n. 16.

No authority is cited or discussion is undertaken in support of the Court's statement. Considering that the Mosley footnote was dicta,FN1 does not provide any explanation beyond its two sentences, and appears to recognize a significant exception to what is stated in plain terms in the body of the Court's opinion in Mosley, and considering that the Court prior to Mosley was divided on this issue,FN2 it would seem that the majority today would provide some explanation and further authority for its holding. See Ex parte Alexander, 861 S.W.2d 921, 922 (Tex.Crim.App.1993) (this Court not bound by dicta found in footnotes); Young v. State, 826 S.W.2d 141, 144 n. 5 (Tex.Crim.App.1991) (opinion on original submission)(noting in footnote that footnotes are generally regarded as dictum).

FN1. The Court in Mosley assumed for purposes of its analysis that the defendant “was unaware, at the time of the crime, of the victims' character or of the impact that the victims' deaths will have on others.” Mosley, 983 S.W.2d at 261 n. 16.

FN2. In Ford v. State, 919 S.W.2d 107, 115 (Tex.Crim.App.1996), a majority of the Court held that victim-impact evidence was relevant at punishment in a capital case. The Court did not specify as to which issue(s) it was relevant to, but only that it was “relevant to sentence.” In a case decided on the same day, Smith v. State, 919 S.W.2d 96 (Tex.Crim.App.1996), cert. denied, 519 U.S. 1030, 117 S.Ct. 587, 136 L.Ed.2d 516, a three-judge plurality held that victim-character and victim-impact evidence was irrelevant to either the future dangerousness issue or the mitigation issue. The plurality nonetheless held the error in admitting such evidence was harmless.

One judge dissented on the ground that he did not view the error as harmless, but otherwise joined. Id. (Clinton, J., dissenting). Three other judges concurred in the result without opinion. Id. (McCormick, P.J., White and Keller, J.J., concurring). Another judge concurred with opinion, suggesting that victim-impact evidence may be relevant, subject to the rigors of Rules 401, 402 and 403. Id. (Overstreet, J., concurring). Finally, another judge concurred with opinion, stating that while victim-impact evidence had no relevance to future dangerousness, it was relevant to the mitigation issue. Id. at 105-06 (Mansfield, J., concurring).

I nonetheless concur in the result. Appellant claims his counsel was ineffective for failing to object to the State's argument at punishment that the jury should consider victim impact evidence in answering the future dangerousness special issue. Even assuming counsel's failure to object amounted to deficient performance, appellant nonetheless does not prevail on this issue because he has failed to demonstrate prejudice.

The State's argument as to the victim-impact evidence was part of a longer discourse concerning appellant's lack of remorse for the murders. Lack of remorse and disregard for human life is relevant on the issue of future dangerousness. In addition, the argument fell immediately before the State's discussion of the mitigation issue, the issue under which the State could have properly asserted the victim impact evidence.

Further, the facts of the crime were alone sufficient to support an affirmative finding of future dangerousness. Appellant choked both of his step-daughters and his wife because he was angry about his wife's stated intentions to divorce him. When his wife had refused to talk to him on the phone that day, appellant stated “That's when I made up my mind to just take her out····”

When one of his step-daughters came home from school that day, appellant asked her how she felt about the divorce. When she expressed indifference, appellant choked her with his forearm and placed her in her bed. When the second daughter returned home, he asked her about the divorce. She told him she would love him regardless of the divorce, and when she approached appellant to hug him, he choked her. He also put her body in her bed.

When appellant's wife later came home, she checked on the girls and thought they were asleep. She told appellant she still intended to divorce him, and appellant choked her to death as well. Other evidence of violence on the part of appellant was admitted on the issue of future dangerousness. For these reasons, I concur.

*****

MANSFIELD, J., delivered the concurring opinion.

I do not agree that victim impact evidence is relevant with respect to the future dangerousness special issue. However I do not believe that the argument by the prosecution at punishment that the jury should consider victim impact evidence in the context of the future dangerousness special issue harmed appellant, given the circumstances of the offense and given the other evidence introduced at appellant's trial. Accordingly, I can only concur with respect to the majority's disposition of point of error eleven and otherwise join the opinion of the Court.

*****

JOHNSON, J., filed a concurring opinion, in which PRICE, HOLLAND and WOMACK, JJ., joined.

I concur only in the judgment affirming the conviction and sentence. I write separately to explain my reasons for doing so. In point of error thirteen, appellant alleges that the State failed to prove beyond a reasonable doubt the probability that appellant would constitute a continuing threat to prison society for forty years and/or that he would constitute a continuing threat to free society if he were released in forty years. The trial court did instruct the jury on parole eligibility.

In reviewing the sufficiency of the evidence supporting the future dangerousness issue, we ask whether, in the light most favorable to the verdict, any rational trier of fact could have found beyond a reasonable doubt that there is a probability that appellant would commit criminal acts of violence constituting a continuing threat to society. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Chambers v. State, 866 S.W.2d 9, 16 (Tex.Crim.App.1993), cert. denied, 511 U.S. 1100, 114 S.Ct. 1871, 128 L.Ed.2d 491 (1994).FN1 “As to future dangerousness, we have held that in deciding whether a defendant poses a continuing threat to society, a jury considers not only free society, but also prison society.” Morris v. State, 940 S.W.2d 610, 613 (Tex.Crim.App.1997), cert. denied, 520 U.S. 1278, 117 S.Ct. 2461, 138 L.Ed.2d 218 (1997). A jury can rationally infer future dangerousness from the brutality of the offense alone. Sonnier v. State, 913 S.W.2d 511, 517 (Tex.Crim.App.1995). Viewed in this light, the evidence adduced at trial supported an affirmative finding on future dangerousness.

FN1. The jury may also employ a non-exclusive list of factors to assist in assessing the future dangerousness issue, including: 1. the circumstances of the capital offense, including the defendant's state of mind and whether he or she was working alone or with other parties; 2. the calculated nature of the defendant's acts; 3. the forethought and deliberateness exhibited by the crime's execution; 4. the existence of a prior criminal record and the severity of the prior crimes; 5. the defendant's age and personal circumstances at the time of the offense; 6. whether the defendant was acting under duress or domination of another at the time of the offense; 7. psychiatric evidence; and 8. character evidence. Keeton v. State, 724 S.W.2d 58, 61 (Tex.Crim.App.1987).

In a statement proffered at trial, appellant confessed that he and his wife, Sharon, argued on Monday and Tuesday, April 6 and 7, 1997, about his unemployment. On Wednesday, she told appellant that she intended to file for divorce. She refused to talk to him on the phone at work that day. According to appellant's statement, “That's when I made up my mind to just take her out, because I felt like the reason she was leaving me was unnecessary and there was no just cause for it.”

Later on Wednesday, appellant's step-daughter, Sonny, returned home at 2:30 p.m., and appellant called her into the master bedroom to discuss the divorce with her. When Sonny expressed indifference about the divorce, appellant choked her with his forearm. He then hid her body in her bed.

When Sonny's sister, Ericka, returned home at 2:55 p.m., appellant also called her into the master bedroom to discuss the divorce with her. Ericka told appellant that she would love him regardless of the divorce. When Ericka approached appellant to hug him, appellant choked her to death, then placed her in her bed. According to appellant, “[t]hat was cleaning up behind a wrong that I had already did.”

Shortly thereafter, Sharon phoned appellant and asked him to pick her up from work. When she asked the whereabouts of the girls, appellant told her that Sonny had stayed late at school and that Ericka had gone to visit her army recruiter. Sharon checked on the girls when she arrived home and thought they were asleep. She asked appellant not to wake them because they had stayed up late the night before. After telling appellant that she still intended to divorce him, appellant choked her to death, as well. He then pawned her sewing machine and got high on drugs.

During the punishment phase of appellant's trial, the State introduced the testimony of Wanda Wallace, the grandmother of three of appellant's children. Wallace testified that appellant dated Wallace's daughter, Shernel Benson, and fathered three children by Benson.FN2 During February of 1989, appellant introduced Benson to drugs, taking Benson and their three-year-old daughter, Stephanie, over to a “drug house.”

Wallace went to the “drug house” herself to retrieve Stephanie and returned to her home with the child. When Wallace arrived home, Wallace's husband and father were charging a car battery with jumper cables. Wallace returned the jumper cables to the trunk of the car and walked back between the car and the van. Her sister called, “[L]ook out, he got a gun,” and appellant fired a pellet at Wallace and hit her car trunk.

Appellant's second shot struck Wallace's father in the face and ear. The third shot went over Wallace's head and hit the windows of the apartment behind her. Appellant was charged with the felony offense of injury to the elderly and received ten years in the Texas Department of Criminal Justice-Institutional Division. Finally, Wallace testified that when Benson became pregnant with their first child, appellant was married to another woman. Appellant's wife later died. FN2. These children were not the victims in the instant case.

Although appellant was perturbed about his impending divorce, his state of mind does not temper the commission of a triple murder. Disguising the girls' deaths and lying to their mother about their whereabouts were deliberate acts calculated to conceal his actions. Further, his determination to kill Sharon on the morning after she told him that she intended to file for divorce exhibited forethought and deliberateness.

These factors, coupled with appellant's prior criminal record, including his attempt to shoot his children's grandmother, are evidence of an escalating pattern of violence. We have held previously that “an escalating pattern of disrespect for the law” supports a finding of future dangerousness. King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App.1997). Appellant has failed to undermine the sufficiency of the evidence supporting the future dangerousness issue.

In his first point of error, appellant argues that police arrested him without an arrest warrant in violation of Chapter 14 of the Texas Code of Criminal Procedure, thereby rendering appellant's confession and the fruits thereof inadmissible.FN3 Following a hearing on a motion to suppress on these grounds, the trial court found appellant's statement admissible. We review a trial court's decision at a suppression hearing to admit or exclude evidence under a standard of abuse of discretion. Alvarado v. State, 853 S.W.2d 17, 23 (Tex.Crim.App.1993). We will not disturb factual determinations made by the trial court at a hearing on a motion to suppress evidence if the record supports its findings. See Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997).

While we defer to the trial court's findings based upon the credibility and demeanor of the officers testifying at the suppression hearing, we also consider the testimony of appellant, who testified for the first time at trial, to determine de novo the legality of appellant's arrest. See Guzman, 955 S.W.2d at 89 (“appellate courts may review de novo ‘mixed questions of law and fact’ ”). FN3. Chapter 14 of the Texas Code of Criminal Procedure [Arrest Without a Warrant] delineates the cases in which a “peace officer or any other person, may, without a warrant, arrest an offender” and the required procedures.

At the suppression hearing and at trial, several officers who were present at the crime scene and at the stationhouse on the day after the murders recounted the events leading up to appellant's confession. Appellant encountered law enforcement officials shortly after he arrived at the crime scene at 9:40 a.m. on April 9, 1997. Upon his arrival, the victims' family members cursed appellant and accused him of committing the victims' murders.

Accordingly, Officer Gutierrez intervened and asked the family members to leave the area while he frisked appellant, then placed him in the back seat of a patrol car without handcuffs. While Gutierrez removed appellant from the vicinity of the victims' enraged family members, Detective Rossi and several other deputies were investigating the crime scene in the apartment upstairs.

During his first cursory inspection of the apartment, Rossi discovered a note which read: “I love Sharon, Sonny, Ericka. I could not take care of my family. I don't have a job. I gave them back to God. He and they will understand. James.” Rossi heard that the husband of one of the victims had arrived downstairs, and shortly thereafter Rossi went downstairs and visited with appellant in the back seat of the patrol car.

Appellant asked Rossi if he was under arrest, to which Rossi replied that he was not under arrest. Rossi asked appellant for his written consent to search the apartment and appellant's car, and appellant gave it. Appellant also agreed to give Rossi a statement at the sheriff's office located at 601 Lockwood. Between twenty and forty minutes later, another officer removed appellant from the first patrol car and handcuffed him. Rossi explained to appellant that the officer was handcuffing him according to police procedure and for security purposes. FN4 Appellant indicated that he understood.

FN4. Rossi later explained on cross-examination that the officer had handcuffed appellant because he was the only person transporting appellant to the office, because of appellant's size at 6' 6? and 305 pounds, and because of the scene of rowdy people.

After leaving the scene and arriving at the Lockwood office, the officer removed appellant's handcuffs. Detective Burch then read appellant his rights. Between 11:00 a.m. and 1:30 p.m., appellant gave a handwritten statement and a typewritten statement, both of which exonerated him, and both accompanied by Miranda warnings.FN5 As appellant signed the written warnings, he asked Burch if he was in custody. Burch replied that appellant was a suspect, but did not say that appellant was in custody.

At some point following the statements, Burch showed appellant to the bathroom. After reading appellant's two statements, Rossi asked appellant to give head hair, pubic hair, fingernail scrapings, blood and saliva samples, and his clothes for analysis. Appellant agreed. FN5. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

Between 2 p.m. and 4 p.m., Ernie Hulsey administered a polygraph examination to appellant at the Lockwood office with appellant's consent, then confronted appellant with his conclusion that the test results showed that appellant was untruthful on relevant questions.

From about 7 p.m. to 11 p.m., appellant conversed with Detective Pinkins about issues unrelated to the facts of the case. At about 11 p.m., Pinkins asked appellant about some aspects of the case, in particular, the note found at the scene of the crime. Appellant admitted that he wrote it.

Around midnight, Detective Brown relieved Pinkins for forty-five minutes to an hour while Pinkins took a break, then called Pinkins back into the interview room when appellant announced that he wished to confess. Appellant made his confession at 1:10 a.m., again with the accompaniment of written Miranda warnings. At no time during the day did appellant ask for a lawyer, ask to terminate any interview, or ask to leave the stationhouse.

After hearing the testimony of members of the Harris County Sheriff's Department, at both the suppression hearing and trial, appellant testified, for the first time, at trial. According to appellant's version, police refused to allow appellant to leave the patrol car at the crime scene. Further, a detective got into the car with appellant and asked him to sign a consent form purportedly allowing the police to remove his wife's and step-daughters' bodies from the apartment. Appellant did not read the contents of the consent form before he signed it. Appellant repeatedly asked permission to go upstairs to his apartment, which police denied.

When police removed appellant from the first patrol car to handcuff him, they told appellant that he was under arrest. After appellant arrived at the police station, a detective, possibly Detective Burch, handcuffed appellant to a bench. The same detective asked appellant to write down his whereabouts during the crime. Appellant then asked the detective where his lawyer was, and the detective told appellant that he did not need a lawyer.

The detective had not yet read appellant his rights. Appellant finally gave a statement without the presence of a lawyer because the detective told appellant repeatedly that he was not under arrest. At no point did the detective read appellant his rights, although appellant did sign a waiver of his rights before handwriting his first statement.

According to appellant, about forty-five minutes after taking his handwritten statement, Detective Burch moved appellant to an interview room for further questioning. Detective Rossi and four other officers entered the interview room, showed appellant the note left at the crime scene, and asked appellant to explain it.

Appellant told officers that “it was a prayer that [appellant] used to pray.” The officers then told appellant that he was a suspect. Appellant stated that he became upset by the questioning and repeatedly asked the officers if he could leave. The officers refused to allow appellant to leave because they wanted to continue questioning him. They questioned appellant for forty-five minutes to an hour.

After the initial period of questioning, Detective Rossi and other officers returned to the interview room and asked appellant if he was involved in a cult murder in California, comparing the murder in California to the instant case. One of the other detectives then told appellant that “when [the detective] walked in the [bedrooms at the apartment] that the bodies had called out to him that [appellant] had done it, [appellant] had done it, for [the detective] to help them out.” Appellant again asked to leave the interview room. The officers refused, telling him to calm down. They continued to question him about the cult murder in California.

Later, a detective asked appellant for some specimens from appellant which appellant did not agree to give. Finally, appellant testified that he did not author the statement confessing to the crime but that Detective Brown deceived him into signing it by telling him it was just a typed version of his previous handwritten statement, even though the new statement was considerably longer than the first statement and began differently. The detective encouraged appellant to sign the statement so he could take appellant home. After appellant signed the statement, the detective took appellant to jail.

Given the evidence, I believe that the police properly arrested appellant without a warrant. Under tex.Code Crim. Proc. art. 14.03(a)(4), a peace officer may arrest, without warrant, “persons who the peace officer has probable cause to believe have committed an assault resulting in bodily injury to a member of the person's family or household.”

We have held that the test for probable cause for a warrantless arrest is “[w]hether at that moment the facts and circumstances within the officer's knowledge and of which [he] had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the [arrested person] had committed or was committing an offense.” Rance v. State, 815 S.W.2d 633, 635 (Tex.Crim.App.1991) (citing Stull v. State, 772 S.W.2d 449, 451 (Tex.Crim.App.1989)).

Upon discovery of the note at the crime scene by Detective Rossi and other deputies, probable cause arose to arrest its author. When Rossi also learned that appellant was both its author and the husband of one of the victims, the language of art. 14.03(a)(4) vested him with the statutory right to arrest appellant without a warrant. Therefore, appellant's confession stemmed from a proper warrantless arrest, consummated possibly before appellant left the crime scene and certainly before he confessed.

In his second point of error, appellant argues that the trial court erred in refusing his request for an art. 38.23 instruction, which would instruct the jury to disregard appellant's written statement if they found that police had obtained it as a product of an illegal warrantless arrest. Since, as explained above, I believe that appellant gave his confession following a proper warrantless arrest under art. 14.03(a)(4), the confession was admissible as the product of a legal arrest.

In points of error three, four, and five, appellant argues that the mitigation special issue violates the Eighth Amendment, because (1) it omits a burden of proof, (2) we cannot conduct a meaningful appellate review of the jury's determination, and (3) we will not review the mitigation issue for sufficiency of the evidence.

As appellant acknowledges, we have heretofore foreclosed each of these arguments relating to the mitigation special issue. See, e.g., Anderson v. State, 932 S.W.2d 502, 508 (Tex.Crim.App.1996), cert. denied, 521 U.S. 1122, 117 S.Ct. 2517, 138 L.Ed.2d 1019 (1997); McFarland v. State, 928 S.W.2d 482, 498-99 (Tex.Crim.App.1996), cert. denied, 519 U.S. 1119, 117 S.Ct. 966, 136 L.Ed.2d 851 (1997); Eldridge v. State, 940 S.W.2d 646, 652-53 (Tex.Crim.App.1996).

In points of error six and seven, appellant argues that requiring ten votes for the jury to return a negative answer to the first or second special issue violates the Eighth Amendment. Appellant tangentially complains that “truth-in-sentencing” mandates an instruction on the default penalty of life imprisonment to avoid jurors' speculation on the consequences of a hung jury.

However, we have previously upheld as constitutional the instructions in art. 37 .071, sections 2(d) and 2(f), known as the “10-12” rule. See, e.g., McFarland, 928 S.W.2d at 519. Further, we have previously held that “truth-in-sentencing” does not mandate that the jury receive information as to the “default penalty.” See, e.g., McFarland, 928 S.W.2d at 519.

In points of error eight and ten, appellant alleges that the Eighth Amendment erects a per se bar to the admission of victim impact evidence for the purpose of mitigation in the present Texas death penalty scheme; and consequently, that trial counsel rendered ineffective assistance in violation of federal and state constitutions by failing to renew his objection during the punishment phase to the admission of victim impact evidence.

During the punishment phase, the State called Ira Lane Mayes, the grandmother of Ericka and Sonny Mayes. Mayes testified to the reaction of her son, Johnny Melvin Mayes, upon hearing the news of his daughters' murders, that she and her family had to physically hold him to keep him from going to the apartment where the girls were murdered, and that she finally asked a neighbor to call 911 and request police assistance in talking her son out of going to the apartment.

She further testified that her son rolled on the ground of her home and screamed, “[J]ust bury me in a hole, I can't take it, I don't have no children, I don't have anybody anymore.” Since the death of the girls, her son had become forgetful, moaned frequently in the morning and at night, and stood in the dining room turning around and around the night before trial.

The Supreme Court has held that if individual states choose to permit the admission of victim impact evidence and prosecutorial argument on victim impact evidence, “the Eighth Amendment erects no per se bar,” regardless of the death penalty scheme employed by the individual state. Payne v. Tennessee, 501 U.S. 808, 826-28, 111 S.Ct. 2597, 2609, 115 L.Ed.2d 720 (1991).

As appellant acknowledges, we have previously held victim character and impact evidence admissible in the context of the mitigation special issue, “to show the uniqueness of the victim, the harm caused by the defendant, and as rebuttal to the defendant's mitigating evidence.” Ladd v. State, 3 S.W.3d. 547, 571 (Tex.Crim.App.1999) (citation omitted), cert. denied, 529 U.S. 1070 120 S.Ct. 1680, 146 L.Ed.2d 487 (2000). As such, appellant's claim of ineffective assistance of counsel also fails.

In his ninth point of error, appellant asserts that we should grant him a new trial on punishment and offer him the option of waiving submission of the mitigation issue per dicta in Mosley v. State, 983 S.W.2d 249 (Tex.Crim.App.1998), cert. denied, 526 U.S. 1070, 119 S.Ct. 1466, 143 L.Ed.2d 550 (1999). Appellant claims that the law existing at the time of his punishment trial, five months prior to this Court's decision in Mosley, prohibited him from waiving the mitigation issue, an option he would have exercised to foreclose the State's introduction of victim impact evidence.

Recently, however, we noted that “[t]his Court's opinion in Mosley did not create ··· a new rule regarding waiver of the mitigation issue. To date, this Court has not decided whether a capital defendant can waive that issue. The statement in Mosley [as to that issue] was not necessary to the holding in that case and is therefore dicta.” Tong v. State, 25 S.W.3d 707, 711 (Tex.Crim.App. 2000).

In point of error eleven, appellant argues that trial counsel rendered ineffective assistance at punishment for failing to object to the prosecutor's argument that jurors should consider victim impact evidence in answering the future dangerousness special issue. To prevail on a claim of ineffective assistance of counsel, the defendant must show (1) deficient performance, and (2) prejudice. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). “Judicial scrutiny of counsel's performance must be highly deferential.” Id. at 689, 104 S.Ct. at 2065. A defendant must overcome the strong presumption that an attorney's actions were sound trial strategy. Id.

During closing argument following the punishment phase, the prosecutor addressed each of the special issues and the corresponding evidence presented at the punishment phase. In concluding his discussion of the future dangerousness issue, he argued without objection: We want you to consider the effect this crime has had on the victims, not only Ericka and Sonny and Sharon, but Johnny Melvin Mayes, their father. You could imagine how he feels now.

How he must have felt that day when he found out that his only two daughters, teenage daughters were gone. He would never see them again, he would never talk to them again, wouldn't see Ericka graduate, wouldn't see them get married, wouldn't see them grow up and have children, would never experience any of those joys that we all take for granted because [appellant] took all of that away from him.

We all hope that when we have kids, I know a lot of you have had kids already, that you're going to go before they do. How tragic it is for a parent to have to lose a child while they are still alive. Johnny Melvin Mayes had to go through that thanks to [appellant], and he lives with the loss of his two daughters everyday. You know that from what his own mother told you earlier today. We certainly want you to consider how this crime has affected Mr. Mayes.

These statements fell at the end of a long discourse on appellant's lack of remorse for the murders, as well as his lack of remorse for the effect of the murders on his victims' family members. While we have observed that victim impact evidence is generally relevant only to the mitigation issue, we have also noted that “[v]ictim impact and character evidence of which a defendant is aware at the time he commits the crime is necessarily relevant to his future dangerousness and moral culpability.” Mosley, 983 S.W.2d at 263 & 261 n. 16; see also Ford v. State, 919 S.W.2d 107, 112 (Tex.Crim.App.1996) (“Remorselessness and disregard for human life have been considered in determining the sufficiency of the evidence to support a jury finding of probability of committing criminal acts of violence that would constitute a continuing threat to society”) (citations omitted).

Because the prosecutor's argument discussed victim impact evidence of which appellant was aware at the time he committed the murders of Sonny and Ericka-namely, that their deaths would grieve their father-it arguably pertained to the issue of future dangerousness. Therefore, appellant has not shown that his attorney rendered deficient performance.

In point of error twelve, appellant argues that the trial court erred by overruling a defense objection to the prosecutor's argument that compared the value of appellant's life to the lives of the victims.

Toward the end of closing argument following the punishment phase, the prosecutor admonished the jury: No reason to give this person a life in the penitentiary sentence because he has worked hard in this incident to earn the verdict you're going to give, the verdict the law demands, the verdict the facts demand and the verdict you will always be comfortable with whenever you rise, whenever you set, whenever you go about your business you will be comfortable that you made the right decision to give this man a life sentence to say there are mitigating factors there or to say he is not a continuing threat is to mean that his life is more important than Sharon Jackson's, than Ericka or Sonny's. [Sic].

Immediately following this statement, defense counsel objected on the grounds that the prosecutor was “asking the jury to make a comparative judgment based on value of life on victim versus the defendant,” which the trial court overruled.

Citing Payne v. Tennessee, supra, appellant argues that a prosecutor may not compare the life worth of a victim with the defendant's. Appellant misinterprets Payne's holding. The concern at issue in Payne was whether admission of victim impact evidence would encourage “a jury to find that defendants whose victims were assets to their community are more deserving of punishment than those whose victims are perceived to be less worthy.” Payne, 501 U.S. at 823, 111 S.Ct. at 2607.

 We have echoed a similar concern. See Mosley, 983 S.W.2d at 262. However, the prosecutor's argument in the instant case in no way compared the worths of the victims; instead, it encouraged the jury to assess the death penalty against a defendant who had killed his victims. The authority appellant cites does not stand for the proposition he espouses.

In appellant's fourteenth point of error, he argues that the trial court erred in denying his pre-trial motion to introduce testimony of his family and friends regarding their feelings on the prospect of a death sentence and the impact his execution would have on them. Because the crux of this testimony necessarily focuses on whether the witnesses believe that appellant should live or die, it does not pertain to appellant's background, character, record, or the circumstances of the offense. See Penry v. Lynaugh, 492 U.S. 302, 328, 109 S.Ct. 2934, 2949, 106 L.Ed.2d 256 (1989); Goff v. State, 931 S.W.2d 537, 555 (Tex.Crim.App.1996), cert. denied, 520 U.S. 1171, 117 S.Ct. 1438, 137 L.Ed.2d 545 (1997).

It is therefore irrelevant to the deathworthiness of the defendant. Fuller v. State, 827 S.W.2d 919, 936 (Tex.Crim.App.1992) (“since that specific desire does not pertain to appellant's background, character, or record, or the circumstances of the offense, the trial court did not err in prohibiting it”), cert. denied, 509 U.S. 922, 113 S.Ct. 3035, 125 L.Ed.2d 722 (1993). Accordingly, the trial court did not err in prohibiting this testimony.

Background: After his conviction for capital murder and resulting death sentence were affirmed on appeal, 33 S.W.3d 828, and his state habeas petition was denied, defendant petitioned for federal habeas relief. The United States District Court for the Southern District of Texas, John D. Rainey, J., denied petition, and refused to issue certificate of appealability (COA).

Holding: Defendant appealed, and sought COA. The Court of Appeals, Jerry E. Smith, Circuit Judge, held that defendant was not entitled to COA based on state court's exclusion of execution impact testimony during sentencing proceedings. Application denied. Dennis, Circuit Judge, filed dissenting opinion.

JERRY E. SMITH, Circuit Judge:

James Jackson seeks a certificate of appealability (“COA”) from the denial of his petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Because he cannot make a substantial showing of the denial of a federal constitutional right, we deny a COA.

The evidence presented at trial established that Jackson murdered his wife and her two daughters because his wife intended to divorce him. Jackson confessed to strangling each victim. The jury found him guilty of capital murder for murdering more than one person during the same criminal transaction. He was sentenced to death.

During the sentencing phase, Jackson filed a “Motion To Introduce the Testimony of Defendant's Family and Friends Regarding Their Feelings on the Prospect of a Death Sentence and the Impact an Execution Would Have on Them.” The motion asked the court to allow Jackson to question his friends and family on (1) whether they wanted him to die and (2) what the impact on them would be if he were executed. The trial court denied the motion.

The conviction was affirmed on direct appeal. Jackson v. State, 33 S.W.3d 828 (Tex.Crim.App.2000), cert. denied, 532 U.S. 1068, 121 S.Ct. 2221, 150 L.Ed.2d 213 (2001). Jackson filed a state petition for writ of habeas corpus. The trial court entered findings and conclusions recommending that relief be denied; the Court of Criminal Appeals adopted those findings and conclusions. Ex parte Jackson, No. 52,904-01 (Tex.Crim.App. Sept. 11, 2002).

Jackson filed a federal habeas petition alleging, inter alia, that the refusal to allow the “execution impact” testimony violated his Eighth and Fourteenth Amendment right to present any evidence that might lead a juror to conclude that a sentence less than death was warranted. The district court granted summary judgment for the state on that claim, holding that the refusal to allow execution impact testimony was not an unreasonable application of Supreme Court precedent. The district court rejected Jackson's other constitutional claims and declined to issue a COA.

On appeal, Jackson abandons all claims except for his challenge to the exclusion of *616 execution impact testimony. He seeks a COA from this court based on that claim.

*****

The state court's decision does not plainly contradict Supreme Court governing law. As the federal district court in this case carefully explained,

Various Supreme Court] cases have consistently held ··· that the scope of constitutionally protected mitigating evidence is evidence reflecting on the defendant's background or character, or on the circumstances surrounding the crime ···· Jackson cites no case holding that evidence unrelated to his character or background or the circumstances of the crime falls within the scope of Lockett [ v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978),] and its progeny····

Because the Supreme Court has never included friend/family impact testimony among the categories of mitigating evidence that must be admitted, the district court was correct in deciding that Jackson failed via the first avenue.

The state court decision is not unreasonable under the second possible avenue for a habeas petitioner under AEDPA. If we consider that Lockett and its progeny announce the governing Supreme Court rule, so that the question of the admissibility of the friends/family impact evidence requires application of this existing rule to the facts, we agree that the state court's determination is not unreasonable-that is, the determination that Jackson's evidence has no mitigating value and therefore does not meet even the low relevance threshold.

Evidence of impact on friends and family does not reflect on Jackson's background or character or the circumstances of his crime, so Jackson's proffer of that evidence does not satisfy the second avenue available to him to obtain habeas relief. As the district court put it,

The testimony Jackson wished to present ··· is not relevant either to the degree of harm Jackson's crime caused or to Jackson's moral culpability for the crime. Accordingly, this evidence does not fall within the scope of Payne v. Tennessee.At a minimum, the Texas courts' conclusion that Jackson was not entitled to present this evidence is not an unreasonable application of Supreme Court precedent ····

This reasoning also is consistent with our rejection, in Summers, 431 F.3d at 882-83, of the notion that “any mitigating evidence” must be allowed to be presented.

In sum, it was not objectively unreasonable for the state court to decide that extant Supreme Court holdings should not be extrapolated to include testimony as to the impact of a death sentence on family and friends. It follows that the district court's determination that the state court ruling was not unreasonable is not debatable by jurists of reason, and jurists could not conclude that the issues presented are adequate to deserve encouragement to proceed further, because there is no indication that a more plenary inquiry reasonably could yield a contrary result. The application for COA, accordingly, is DENIED.

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DENNIS, Circuit Judge, dissenting:

Because I disagree with the majority's application of Miller-El to the standard of review in this case, and because I disagree with the district court's conclusion that the state court did not violate clearly established federal law in excluding execution impact evidence and believe the issues presented are adequate to deserve encouragement to proceed further, I respectfully dissent.

*****

Because the petitioner has made a substantial showing of the denial of his constitutional rights by the state court's exclusion of his execution impact evidence, and because the majority short-circuited its inquiry into whether the issues are adequate to deserve encouragement to proceed further in direct conflict with the Supreme Court's admonitions in Miller-El, I respectfully dissent.