ON DIRECT APPEAL
FROM HARRIS COUNTY

In June 2002, appellant was convicted of capital murder and sentenced to death. ⁽¹⁾ Direct appeal to this Court is automatic. ⁽²⁾ Appellant raises eleven points of error. Finding no reversible error, we affirm the conviction and sentence.

Steve Martin, an expert on prisons, ⁽³⁾ testified about the environment of a maximum security prison, where appellant would stay if sentenced to life imprisonment. He also commented on appellant's jail disciplinary record, testifying that the imposition of relatively mild punishments in each case suggest that the infractions were not serious. He also testified that he expected to see minor fights more often in a tank of youthful offenders than a tank of older offenders. On cross-examination, Martin acknowledged that there are gangs, violence, and drugs in prison.

During direct examination in the punishment phase, appellant made numerous statements indicating that he accepted responsibility for his actions during the crime spree. When asked whether the drugs he used were at fault for what happened, he replied, "No sir." "Whose fault is it?" the defense attorney asked. Appellant responded, "It's mine." When asked whether Carter was at fault for his death, appellant explained:

It wasn't meant to or his fault that he died, it was mine. It was a bunch of things that was going on that I cannot explain. Don't know how to explain them.

Is not that I won't explain, it's just the night everything happened we had been smoking PCP laced with marijuana. That's no excuse for what I did. I didn't intentionally kill Matthew Carter.

When appellant denied intentionally killing Carter, defense counsel questioned him about the actions he did intend that night, which included participating in the robbery, holding the gun, and cocking the gun. Appellant denied loading the gun - claiming that Phillips had done so - and he also stated that he did not know that the gun was loaded until the gun fired. When asked whether he knew a bullet was in the gun's chamber when Cherry was shot the week before, appellant responded, "Not necessarily speaking."

When asked how the shot was fired that killed Carter, appellant said, "In the process of him getting out of the car he walked around the car, I'm trying to see where he is coming from. I had, I had the gun, and something happened. I don't know what happened. Something physical happened and I tensed up and I pulled the trigger." When defense counsel asked, "Who was responsible for what happened to Matthew Carter?" appellant replied, "I am."

Later, defense counsel asked some questions regarding what appellant had to say to his own mother and to the victim's family. With respect to his own mother, appellant replied, "Really ain't too much I can say. Only thing I can say is I'm sorry." With respect to the victim's family, appellant responded, "Only thing I can say is I'm sorry for the pain I caused in your heart by taking your son's life."

During cross-examination, the prosecutor began to question appellant about whether he was really accepting responsibility for his conduct:

Q. What we have here today right now is you sitting in front of this jury saying it's my fault, right?

A. Yes, ma'am.

Q. It's my responsibility, right?

A. Yes, ma'am.

Q. I accept your verdict, right?

A. Yes ma'am.

Q. Okay. But in reality that's not what you're saying, is it Mr. Williams?

A. That's what I'm saying.

Q. What you keep saying is Corey told me to do this. Corey told me to do this.

A. May I speak freely?

Q. Just answer my question. Are you telling me - have we not heard you say Corey told you to do it, right?

A. Yes, ma'am.

Q. So Corey is the big bad Corey that's in charge of this whole reign of terror, shall we say, right?

A. Technically speaking, yes.

After further questions about Phillips being the leader of the group that night, the prosecutor asked appellant if he, Butler, and Dunn had originally planned to rob Phillips before they recognized him and he joined the group. Appellant responded, "[N]ot to my recollection. It's been so long I don't remember. I don't remember the biggest part of this whole situation."

When the prosecutor asked appellant whether the group had abducted Gonzales during the first robbery incident on September 17, 2000, appellant answered, "Yes, ma'am. I don't call it abducting." "What would you like to call it?" the prosecutor asked. Appellant replied, "Not being where no one can see you."

The prosecutor challenged appellant's contention that he was just following Phillips's orders as the Gonzales robbery progressed:

Q. So then in fact Corey is following you?

A. At this point in time, yes.

Q. All right. So you're calling the shots where we're going to here, right?

A. I don't put it like that.

Q. Well, you're telling Anthony where to go, right?

A. Technically speaking, yes.

The prosecutor questioned appellant about his actions after the Gonzales robbery - when he tried to withdraw money from an ATM machine. Appellant explained that withdrawing the money was Phillips's idea even though appellant was the one who had obtained the PIN number. After two unsuccessful attempts to use the card, appellant claimed that Dunn told him to try one more time. Appellant said he really did not want to use the ATM machine because he knew the PIN number would be incorrect. The prosecutor asked, "You're the one that had the wherewithal, the good sense to ask Anthony, well, what is the pin number. Go along with this so this is not useless to me, right? You asked him that, right?" Appellant answered, "Technically speaking, yes."

The prosecutor subsequently questioned appellant about his dominant role in Carter's murder. The prosecutor elicited the testimony about Dunn being asked to commit a robbery in order to become a part of the Crips gang. "So Corey is here," the prosecutor said, "and in order to get with the gang you do it. James don't want to do it. Instead of putting up with the tomfoolery, give me the gun, I'll take care of business?" Appellant responded, "Technically speaking."

The prosecutor later asked appellant if, by the time he pulled the trigger on the gun in the Carter murder, he "actually kind of had a little bit of practice" the week before when he shot Cherry. Appellant replied, "I don't remember - everything happened so fast. I don't really remember that." Appellant did acknowledge that he never told the investigating detective about the Cherry shooting. When the prosecutor insinuated that appellant kept quiet about that incident because the detective did not indicate he knew, appellant responded, "To be honest, that slipped my mind from me getting high."

The prosecutor also questioned appellant about his contention that he was high during and after the murders. Appellant said that he did not go to sleep the night the murder occurred. He conceded that he showed up at 8:00 a.m. at his workplace (a U-Haul center) the morning after the murder and that he worked the entire eight-hour shift. Appellant contended that he was high the entire time.

Apparently displeased with appellant's answers during cross-examination, defense counsel, on redirect, asked appellant about the "taking responsibility" issue:

Q. I mean, you took the witness stand here today, you said it was your fault, wasn't Corey Phillip's [sic] fault, then you spent the whole cross telling us it was Corey Phillips.

A. I'm not saying it's anyone's fault.

Q. Sure you are. You said it's my fault.

A. It is my fault.

Q. No, you didn't say that. You spent the last 30 minutes telling these people it's Corey Phillip's [sic] fault. I just want to know, you know, if Corey Phillips tells you to jump off a bridge, you jumping off a bridge?

A. Not necessarily, no.

Q. Why did you get up and say it's your fault, turned around and say it's not your fault?

A. I didn't say.

Q. Yes, you did.

A. I didn't say - I didn't say it wasn't my fault. What I said was - I took responsibility for taking the man's life, shooting Lolita Cherry, if that's how you pronounce the name, if I am not pronouncing it right. I take responsibility for the biggest things that changed my life and changed the Carters' lives forever.

Q. What do you mean you're talking technically speaking? What does that mean, technically speaking? What does that mean?

A. That means yes just in a stronger way to the way I put it.

Q. Okay. Well, you know, can you see how that technically speaking does not sound right?

A. I just -

Q. Can you just see how that doesn't sound right?

A. Yes, sir.

Q. This isn't a technical case, is it?

A. Not really, sir.

Subsequently, defense counsel queried appellant about his performance on the witness stand:

Q. The judge asked you to take the witness stand, right?

A. Yes, sir.

Q. And he did swear you to tell the truth, right?

A. Yes, sir.

Q. And then she [the prosecutor] asked you to tell the truth. Remember she said just tell me the truth, right?

A. I told you the truth.

Q. Okay. I mean -

A. I told her the truth, even though that doesn't sound like it. I'm just, I'm just speaking. I'm nervous up here, being in the fate of my own, being to keep my own fate.

Q. You never testified before, have you?

A. No sir.

Finally, defense counsel questioned appellant about following someone else's bad judgment:

Q. Is this Corey Phillips - can you just march along to what anyone else tells you to do?

A. I don't know how to answer that question.

Q. Well, you know how to exercise free will. You know how to say yes, you know how to say no?

A. Yes, sir.

Q. You know how to engage in conduct, you know how to not engage, right?

A. Yes, sir.

Q. You know how to say no?

A. Yes, sir.

Q. Right. Corey Phillips tells you to do something, you know how to say no, don't you?

A. Yes, sir.

Through Saifi, the State introduced some evidence about Carter's personal life. Saifi testified that she and Carter met as summer camp counselors and became involved in a serious dating relationship. After Carter graduated from college, he chose to attend medical school at the Baylor College of Medicine because Saifi was already attending there. Because Carter was an excellent student, he applied under the early-decision program and was accepted on a full scholarship. Saifi further testified that Carter's father was the chairman of the Neurology Department at Southwestern Medical School and that his mother was a social worker. All of this testimony was admitted without objection.

The State also presented testimony from Claire Bassett, the Vice President for Public Affairs at the Baylor College of Medicine. She testified that she knew Carter as a first-year medical student "because he was one of our top ten students." Defense counsel objected to this testimony. At a bench conference, the trial judge sustained the objection. No instruction to disregard was requested or given. Bassett then testified that Carter was one of her medical students and she identified his picture. Defense counsel objected to Bassett identifying the picture, but that objection was overruled.

After the defense rested, the State called three witnesses to give victim-related testimony. Bassett testified that, because many of the medical students were upset by Carter's death, the medical school decided to permit students to delay taking exams if they so chose. The school also placed all of its psychiatric faculty at the disposal of the students for counseling, if needed.

Saifi testified that, with Carter's death, she lost her best friend, and this loss changed her life on a daily basis. She said that his death "really destroyed the future that Matt and I had planned for each other." She explained that she and Carter had planned to be married by the end of his first year in medical school and that his death destroyed their plans and their dreams:

So, I lost you know, my husband that I would spend the rest of my life with and, uhm, the family we had dreamed about. We already discussed, apparently, how we wanted to raise our family, uhm, where we'd live so we'd be close to his family, close to my family. Uhm, they were definite plans that were interrupted and dreams that were destroyed.

She also explained that her position in medical school became jeopardized and that she took time off and received counseling.

Carter's father, Dr. Gregory Carter, also testified. Dr. Carter explained that he and his wife drove from Dallas to Houston the evening they learned of their son's murder. He described it as a "painful drive" with "a certain amount of disbelief . . . that this could be real, this could really happen." Dr. Carter described himself, his wife, their other son, and the students at the medical school as "very upset." When asked about the impact his son's death had upon him, Dr. Carter said it was "devastating." He lost a "considerable amount of work" and "had difficulty keeping up subsequent to that."

Dr. Carter also explained that his wife had been making really good progress on her career before their son's death, but afterwards, she was unable to work full time and had become "markedly disabled with depression." Not only did she suffer from "depression and grief," however, but a few months later "she developed an attack of multiple sclerosis."

Dr. Carter testified that the grief of losing Carter was mitigated somewhat by the happy event of their other son's new marriage. But when Carter's birthday approached, the memories came back. His absence was a "major rip or hole in the fabric" of the family, and the victim's brother in particular felt "like a hunk had been taken out of his heart."

Dr. Carter also extolled the victim as a good person of whom his parents were very proud: "You know, you raise a child up to be right with God, right with your family and right with their community, and Matthew was a shining example of all that. We were so proud of him and so proud of all that he had done and all that he had accomplished and what kind of person he was."

Dr. Carter testified that the painful memories were also brought back in August 2001 when his father (the victim's grandfather) died of natural causes and then again on September 18 "when we saw on the news again and again the families that suffered those sudden and violent losses of their loved ones" during the terrorist attacks on September 11, 2001.

The next day, defense counsel sought to introduce a "bystander's bill" to reflect Dr. Carter's demeanor during his testimony. Defense counsel contended that Dr. Carter "had to stop while he was crying several times in talking about his wife and his son." One of the prosecutors expressed disagreement with defense counsel's characterization of Dr. Carter's demeanor. The prosecutor stated, "Doctor Carter, if he paused at all was very brief in nature. There were a couple of times I guess I would refer to it as his voice broke but he did not sob." The trial judge did not comment on these contrasting views of the testimony.

In response to appellant's claim, we observe that appellant shot not just one person, but two, and those shootings occurred on different occasions. He participated in at least five robberies, two of which were after Carter's murder. With regard to the shooting of Cherry, the jury could rationally believe that appellant intended to kill her, or at least did not care whether she lived or died. The jury also had evidence that appellant intentionally killed Carter despite his pleas for mercy and despite his offer to allow appellant to withdraw money with his ATM card.

In addition, there was evidence that Carter's murder was gang-related, that appellant was associated with the Crips gang, and indeed, that appellant was still associated with the Crips gang while he was incarcerated on the capital murder charges. The jury could believe that he would continue to be a gang member in prison and thus pose a danger to other inmates and prison staff.

Indeed, the jury could have believed that appellant instigated all or most of the fights for which he was disciplined. Finally, various aspects of appellant's trial testimony - his claim that Phillips was the leader, his use of the words "technically speaking" to describe his blame or involvement, his claim that the crime was committed under the influence of drugs, and his attempts to minimize the severity of his motives and actions - could be viewed as indicating that appellant's acceptance of responsibility was not genuine.

Most importantly for our purposes, the Supreme Court drew a specific link between victim-related evidence and a meaningful assessment of moral blameworthiness:

The statutory mitigation special issue that was submitted in appellant's case conformed to the Supreme Court's requirement of according the defendant the "broadest latitude" to introduce mitigating evidence. It asked:

Thus, the special issue placed virtually no limits on the types of mitigating evidence that might be introduced or the particular mitigating purpose for which the evidence might be considered. Under the logic of Payne, this all-encompassing mitigation issue included within its scope victim-impact and victim-character evidence because such evidence could be used to show that the mitigating circumstances relied upon by the defendant were not sufficient to justify a life sentence.

The future dangerousness issue does not present the State with a situation in which the defendant can present any and all types of mitigating evidence for any and all types of mitigating purposes. Just as some evidence of mitigating value may be irrelevant to the future dangerousness determination, some evidence of aggravating value may likewise be immaterial.

In practical effect, the future dangerousness special issue turns on the jury's assessment of what kind of person the defendant is: Is the defendant someone who is likely to commit criminal acts of violence in the future? When the defendant knows the victim, and thus (it may be inferred) he is aware of the victim's character or of the relationships the victim has with others, the victim's character and relationships necessarily become relevant to the future dangerousness determination because such evidence shows that the defendant is the kind of person who would kill someone of that character or with that particular network of relationships. And to the extent the defendant's knowledge of the victim's relationships give rise to the ability to reasonably foresee the harmful effects the victim's death would have on others, the jury can likewise consider that information with respect to the defendant's future dangerousness.

On the other hand, when the defendant is a stranger to the victim, and thus does not know the victim's character or relationships, evidence relating to those topics does not help the jury determine what kind of person the defendant is. To be sure, a defendant who kills a stranger could and should realize that the victim is a unique human being, with his or her own hopes and dreams, and the defendant could and should anticipate that other people may mourn the victim's passing.

Finally, the mitigation special issue was a legislative response to the Supreme Court's decision in Penry v. Lynaugh. It was designed to fix a constitutional deficiency in the old Texas capital sentencing scheme, not to give the State an advantage it would not have had under that scheme. Allowing a defendant to "opt out" of the "Penry" portion of the scheme - falling back on what the Texas scheme would be like if Penry had not been decided - seems more in accordance with the legislative intent than saddling the defendant with an issue that is supposedly to his benefit but that he does not in fact want.

We see three points of distinction that could be made between the mitigation special issue and other issues that are traditionally characterized as defensive, but, for the reasons discussed below, those distinctions do not dissuade us from our conclusion that the mitigation special issue is in fact a defensive issue.

By analogy, one might attempt to characterize the mitigation special issue as "neutral," belonging to neither party. But unlike the noncapital sentencing determination, the mitigation special issue is a special issue, and thus, it is also a discrete issue, unlike the general assessment of punishment in noncapital cases. Every other discrete issue that could be considered by a jury belongs to either the State or the defendant.

Moreover, we think discrete issues, by their nature, must belong to one of the parties. Either the issue is a part of the State's case or it is a defensive issue. The general assessment of punishment in a noncapital case is "neutral" only in the sense that it is not a discrete issue at all. Had the Legislature intended to enact a neutral, non-waivable mechanism for considering mitigating evidence, it could have simply chosen to confer upon the jury the authority to decide (after finding the defendant guilty and answering the future dangerousness issue) whether to impose a punishment of "life" or "death." But that is not what the Legislature did.

We conclude that the mitigation special issue is a defensive issue that cannot be forfeited by inaction but can be waived, and because it is a defensive issue, the defendant has a right to insist upon its waiver. The trial judge in this case erred in refusing to allow appellant to waive submission of the issue to the jury, and as a result, erred in admitting victim-impact and victim-character evidence that would have otherwise been excluded.

Appellant argues that the error in this case should not be held harmless, contending that he had a "strong defense to the continuing threat issue" and that there is "no assurance that [the jurors] would have reached the same answer" to that issue "if they had not heard the victim impact/character testimony."

It is not entirely clear from his argument whether he thinks the error is immune from a harmless error analysis or whether he merely thinks the error was not harmless in his case. Nor does appellant attempt to explain whether the error at issue is constitutional or non-constitutional in nature, or whether we should apply harm standards for jury charge error or for error in improperly admitting evidence.

In erroneously submitting the mitigation special issue, the trial court essentially interpreted the issue as an element of the State's case rather than a defensive matter that could be waived. That error is simply a misconstruction of the statute. Likewise, the erroneous admission of evidence constituted a mere statutory violation because, without the mitigation special issue, the victim-related evidence was not relevant under the statutory scheme. As Payne makes abundantly clear, there is no constitutional impediment to the consideration of victim-related evidence. The trial court's errors in this case were statutory rather than constitutional in nature, and thus, we apply the harm standards for nonconstitutional errors.

Second, we must determine whether appellant had any mitigating evidence that had significant impact under the mitigation special issue apart from its impact under the other special issues, and we must assess the relative strength of such evidence and of the special mitigating inference produced by this evidence.

We turn to the first factor: the prejudicial effect of the anti-mitigating evidence that would not have otherwise been admitted. If appellant had not attempted to waive the mitigation special issue, the State's evidence would not have exceeded what was permissible under Rule 403 (under the guidelines articulated in Mosley), but we recognize that some of this evidence was moderately strong.

Carter was an excellent individual, whose parents were deservedly proud of him, and a good student with a promising medical career ahead of him. He had a serious relationship heading toward marriage that was shattered by appellant's actions. The evidence suggested that Carter's mother suffered more than just the foreseeable grief associated with the death of a loved one: she suffered a disabling depression, which was later accompanied by multiple sclerosis.

But much of this testimony was heard at the guilt phase of trial, where it came in either without objection or without a request for an instruction to disregard. Regardless of the trial court's ruling on appellant's request to waive the mitigation special issue, the jury would have known that Carter was one of the top students at Baylor Medical School.

The jury would also have known that Carter and Saifi were in a serious dating relationship that was likely headed for marriage. And the evidence of grief suffered by the victim's father, brother, and bride-to-be, and even to some degree by his mother, was consistent with the reasonably foreseeable general inference that a murdered victim would leave grieving relatives behind.

We also point out that the victim-related evidence of which appellant complains spans only ten pages of nearly 400 pages of punishment phase testimony. And much of the victim-related testimony was general. For example, although Dr. Carter did characterize his son as a "shining example," he did not describe the victim's good qualities in any detail.

Next, we address whether appellant presented any evidence that had mitigating impact peculiar to the mitigation special issue. The prosecutor suggested that there was no evidence favorable to appellant under the mitigation special issue, except possibly youth, which he argued was not mitigating:

[Special issue two encompasses any] evidence you find that mitigates, that reduces his moral blameworthiness, and I suggest to you there is not any. The only thing really they can argue is age.

And age, I suggest to you is not a mitigating factor, but that is for you to decide.

He is from a, well, good family. There has been, you know, so many people that have been here for him all his life. Mother and father, all the aunts and uncles, all kinds of people. People always willing to help. He's not from a subject of sexual, physical, or any type of emotional abuse, but from a loving family, but he does not have a conscience and you can't give him one, but I ask you to answer these questions based upon the law and evidence and nothing else and we will abide your verdict.

We next turn to the relative strength of the parties' positions on the other special issues, particularly future dangerousness. In this case, future dangerousness was the only other special issue submitted. We recognize that the State's evidence was substantial. Among other things, the State submitted evidence of multiple shootings and robberies, violent behavior in jail, gang membership, and evidence that the jury could construe as indicating a lack of true remorse and a failure on appellant's part to truly accept responsibility for his actions.

On just about every issue, appellant had an answer, but the answers were not particularly credible. Appellant wished the jury to believe that he was a mere follower, that he was dominated by three different people at three different times: by Butler in the Cherry robbery, by Phillips for various crimes occurring on the night Carter was killed, and by Dunn at the time appellant tried to withdraw money from an ATM machine. But it was appellant who shot two people, appellant who was alone in the car with two different victims, and appellant who took over after Dunn froze up.

Moreover, while appellant produced the testimony of a chaplain to say he had "changed," more concrete evidence, in the form of prison disciplinary reports, showed that appellant was involved in numerous fights while incarcerated - at least one of which was without any provocation. Appellant's letters to Butler indicated that he was still a member of a gang and had not in fact reformed his behavior. And even defense counsel expressed dissatisfaction with appellant's testimony at trial.

With regard to argument, it could be said that the prosecutor "exploited" the improper submission of the mitigation special issue by pointing to the absence of evidence that could be given significant mitigating impact under that issue, but it is difficult to see how that type of "exploitation" could have any spillover effect on the jury's determination of future dangerousness.

More importantly, the prosecutor did not exploit the introduction of the victim impact and character evidence but joined defense counsel's efforts to minimize any prejudicial effect flowing from that evidence. Defense counsel emphasized that the jury should not punish appellant more severely simply because his victim was a valuable member of society:

Uhm, nothing that I said I hope during the trial, certainly now, should be taken as any sign of disrespect for Mr. Carter's family. Uhm, it's hard to put yourself in their position. It's hard to know how you would deal with such a thing but you as a jury are expressing all of our feelings as a society when you make a judgment in a case like this. And, again, with no disrespect to the Carters, think about if we value that person's life, Matthew Carter, think about if we value that person's life, Matthew Carter, and say because he was a fine person we're going to increase the punishment of Perry Williams.

Inevitably what that causes, imagine a person at the Blockbuster was a drug dealer. That he just come from a club selling cocaine. That he was in Matthew Carter's place. Would that be something that we as defense lawyers would argue to you as a jury? This guy was no good. It didn't matter, he was a drug dealer. So what? We'd never argue that because every life has value because it's a life, not because of who you are.

At least to some degree, the prosecutor expressed agreement with defense counsel's argument:

I agree, not one of these questions says do you feel sorry for doctor and Mrs. Carter. Not one of these questions says do you feel sorry for Justin and Maryam, and their in-laws and Mrs. Carter's brother and his roommate and his friends. I mean, you know, it does not say do you feel sorry for them. Okay. I am not asking you to consider that. Does not say do you feel sorry for the defendant's family. It's not in there.

That passage was in fact the only part of the prosecutor's argument that made any reference to the victim-related evidence.

Indeed, the entire prosecutorial argument focused on appellant's role in the offense and other evidence relating to his future dangerousness. The State characterized appellant as playing a dominant role in Carter's murder and two of the other robberies. Appellant was depicted as not having a conscience and not accepting responsibility. One of the prosecutors described appellant variously as "unpredictable," "cold-blooded," and "trigger-thirsty."

The prosecutor also characterized Carter's murder as "an attempt to eliminate witnesses." The whole thrust of the State's argument was on the future dangerousness special issue, with only a brief comment on the mitigation issue, and with no attempt to use the victim impact and character evidence.

Although appellant did not have evidence other than youth that could have been used in his favor under the mitigation special issue and the trial court took no remedial action to limit the effect of the victim-related evidence, the other factors weigh strongly in favor of finding the error harmless.

The victim-related evidence took up only a brief part of the record. Most of the evidence elicited was of the type that could be reasonably foreseen as arising from a murder. Much of the evidence was elicited at the guilt phase without objection or where no instruction to disregard was given (and none was requested).

The State's future dangerousness evidence was strong, including multiple robberies, multiple shootings, violent incidents in jail while the capital murder prosecution was pending, appellant's own writings indicating his continued gang membership, and appellant's disastrous performance during cross-examination that conveyed to the jury that he was not in fact accepting responsibility for his criminal conduct.

And finally, the prosecutor did not use the victim impact and character evidence in his closing argument but joined defense counsel in minimizing its relevance in front of the jury. Considering everything we have discussed, we conclude that appellant was not harmed by the trial court's erroneous submission of the mitigation special issue and the resulting admission of victim impact and character evidence.

In summary, with respect to point of error one - waiver of the mitigation special issue and the resulting admission of victim-related evidence - we conclude that the trial court erred but that the error was harmless. With respect to point of error two, the admission of victim-related evidence irrespective of the waiver question, we find that the trial court did not err. With respect to point of error three, the submission of a limiting instruction, we find that the trial court did not err in failing to submit a limiting instruction in the jury charge because appellant failed to request one at the time the evidence was admitted. Points of error one through three are overruled.

In point of error five, appellant complains that the trial court denied him his Sixth Amendment right to present a defense and his Eighth Amendment right "to obtain the jury's effective consideration of his defensive mitigation evidence on punishment" when it excluded the hearsay statement of one of his accomplices which purportedly supported his "factual and state-of-mind defense."

Appellant expressed his intention to testify at the punishment stage of trial that he had not intended to kill Carter. Appellant maintained that he had been holding the gun to Carter's head when Carter pushed him and caused appellant to 'tens[e] up' and pull the gun's trigger. In an effort to corroborate his version of the events, appellant attempted to introduce a portion of co-defendant Dunn's audiotaped statement to the police.

He did not attempt to call Dunn himself because Dunn's attorney informed the parties that Dunn would invoke his Fifth Amendment right not to incriminate himself if the defense called him as a witness at trial. According to a transcription of the audiotaped statement, Dunn saw Carter "pushing [appellant] away or whatever" and then heard appellant's gun discharge. Dunn did not actually see appellant shoot Carter.

Appellant argued at trial that this corroborating evidence was relevant to the mitigation question because it constituted "a circumstance of the offense" that mitigated his culpability for the crime. Appellant further claimed that this evidence was vital to his case and its exclusion would preclude him from presenting his defense.

The State argued that the evidence was not relevant to any of the special issues and was merely appellant's attempt to relitigate the issue of guilt or innocence. After noting several United States Supreme Court cases, the trial judge found that the statement was "arguably inherent[ly] trustworth[y.]"

The judge then confirmed that appellant intended to testify to substantially the same facts stated in the complained-of evidence. The judge concluded that the evidence should be excluded because a statement that merely corroborated appellant's testimony was "not crucially important to the determination of any of the issues at the punishment phase of trial." Appellant reurges his complaints on appeal.

Appellant has also failed to show that the evidence was vital to his defense. The trial judge clarified that appellant would testify to his version of the events and that the portion of Dunn's statement that he wanted to introduce would merely corroborate that testimony. Thus, appellant was able to present his version of the events to the jury albeit not to the extent and in the form he desired. Appellant has failed to show that the trial judge's ruling was erroneous. Point of error five is overruled.

In point of error ten, appellant contends that the trial judge erred in overruling his objections to the prosecutor's punishment phase argument regarding parole eligibility and the future dangerousness special issue. Appellant claims that the prosecutor misstated the law by inviting the jurors to disregard the 40-year parole ineligibility instruction in answering the future dangerousness question.

He claims that this improperly prevented the jury from effectively considering his "crucial mitigating evidence" of remorse, good jail behavior, prison classification and control of violence, and the "aging-out phenomenon." Specifically, appellant complains about the following argument and the objections made thereto:

[PROSECUTOR]: As the defendant sits in the courtroom this day you're asked to answer this question. Do you find from the evidence beyond a reasonable doubt there's a probability that the defendant would commit criminal acts of violence -

[DEFENSE COUNSEL]: Excuse me, Mr. [prosecutor]. I object. He asks the jury to read the charge and isolate it and ignore the parole provisions.

THE COURT: Denied.

[PROSECUTOR]: The parole provision, because you're not supposed to consider parole in reaching your decision, you're asked to answer this question today. Now what I suggest [defense counsel] is saying is he wants you to put into this question that he is going to serve 40 years day-for-day.

[DEFENSE COUNSEL]: Judge, that's the law. I object to him striking the defendant over counsel's shoulder.

THE COURT: Overruled.

[PROSECUTOR]: And I ask don't rewrite this question. Don't let him rewrite the question. As the defendant sits in this courtroom this day, that's where we are. This question is before you. Today is the day that you have to answer it, and you have to answer it today, this question.

[DEFENSE COUNSEL]: Judge, may I have a running objection to the misrepresentation of the law that counsel is telling the jury?

THE COURT: Yes, sir.

[DEFENSE COUNSEL]: Thank you.

[PROSECUTOR]: Will that running objection be overruled?

THE COURT: Yes.

[PROSECUTOR]: You're to decide is the defendant - is there a probability that the defendant beyond a reasonable doubt would be a continuing threat to commit criminal acts of violence, a continuing threat to society, and that's the question. Not put into it after he gets out after 40 years, if he gets out after 40 years. You cannot put in he got a life sentence into the question, because in the charge it says, the very first part, it says the mandatory punishment for the offense of capital murder of which you have found the defendant guilty is death or confinement in the Texas Department of Corrections for life.

In the interest of completeness, we point out that defense counsel responded in his own closing argument to the prosecutor's comments:

On page 4, the Judge tells you about parole law. This is the argument we have and we'll continue to have, I imagine, as long as we're both doing this. Let me tell you why I think what I'm saying is something that you can rely on. On page 4 the Judge tells you that if you sentence someone or to get a life sentence in a capital murder case they're going to serve 40 calendar years without consideration of any good time.

Under those circumstances, we cannot find fault with a prosecutor arguing as an advocate to the jury that the jury should not consider a defendant's minimum parole eligibility in determining whether he constitutes a future danger to society.

The jury had the information about appellant's minimum parole eligibility, and they also heard defense counsel's argument on why it should be considered. The trial judge exhibited no partiality to either party's interpretation of the role played by the parole law instruction. The jury was thus in a position to give effect to the parole law instruction to the extent it was deemed appropriate. Point of error ten is overruled.

The judgment of the trial court is affirmed.

Delivered: June 11, 2008

Publish

*****

[TRIAL JUDGE]: Denied.

19. Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991).

20. Ex parte Torres, 943 S.W.2d 469, 473 (Tex. Crim. App. 1997); Tex. Gov't. Code, �311.023.

21. See State v. Moore, 225 S.W.3d 556, 566 (Tex. Crim. App. 2007); Pettigrew v. State, 48 S.W.3d 769, 771 (Tex. Crim. App. 2001); Busby v. State, 990 S.W.2d 263, 267 (Tex. Crim. App. 1999).

22. Mosley, 983 S.W.2d at 262; see id. at 261-62 (discussing prior cases).

23. Id.

24. Id. at 262.

25. Id.

26. Rule 403 provides: "Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence."

27. Mosley, 983 S.W.2d at 262.

28. Id.

29. Id.

30. Id. at 261 n.16.

31. Id.

32. Id. at 263.

33. Id. at 264.

34. Solomon v. State, 49 S.W.3d 356, 365-66 (Tex. Crim. App. 2001).

35. Jackson v. State, 992 S.W.2d 469, 478 (Tex. Crim. App. 1999).

36. Salazar v. State, 90 S.W.3d 330, 336-38 (Tex. Crim. App. 2002).

37. Roberts, 220 S.W.2d at 532; Jackson v. State, 33 S.W.3d 828, 830, 833-34 (Tex. Crim. App. 2000).

38. 25 S.W.3d 707, 711 n.5 (Tex. Crim. App. 2000).

39. 61 S.W.3d at 388.

40. Id. at 388-90.

41. Id. at 390 n.48.

42. Id. at 395 (Cochran, J., concurring).

43. 983 S.W.2d at 263 (quoting from the mitigation special issue found in Art. 37.071, �2(e)).

44. 501 U.S. 808 (1991).

45. 983 S.W.2d at 261.

46. 482 U.S. 496 (1987).

47. Payne, 501 U.S. at 822 (citation and internal quotation marks omitted, bracketed material added).

48. Id. at 825.

49. Id. at 819.

50. Id. at 825.

51. Id. at 827.

52. Id. at 826 (quoting State v. Payne, 791 S.W.2d 10, 19 (Tenn. 1990), with approval) (emphasis added).

53. Art. 37.071, �2(e)(1)(1999). The current version of the mitigation special issue differs from the issue applicable in appellant's case in only one respect: the words "without parole" immediately follow "life imprisonment." See Art. 37.071, �2(e)(1).

54. Art. 37.071, �2(b)(1). The current version of the special issue does not differ from the version applicable to appellant.

55. See Penry v. Lynaugh, 492 U.S. 302 (1989).

56. While the Supreme Court in Jurek v. Texas, 428 U.S. 262 (1976), was too optimistic in concluding that the future dangerousness issue swept all types of mitigating circumstances within its reach, see id. at 272-74, the Supreme Court's conclusion at least accurately reflected that the special issue's scope was indeed very broad with respect to the kinds of evidence that are relevant to its resolution.

57. Martinez v. State, 17 S.W.3d 677, 692 (Tex. Crim. App. 2000); Nenno v. State, 970 S.W.2d 549, 559 (Tex. Crim. App. 1998).

58. Of course, even a stranger might have been aware at the time of the crime of some facts relating to the victim (e.g. a victim who is famous or one who is visibly pregnant), rendering evidence relevant to future dangerousness to the extent of the defendant's actual awareness.

59. Marin v. State, 851 S.W.2d 275, 279 (Tex. Crim. App. 1993).

60. Art. 1.14(a). See also Art. 1.13(b).

61. See Prystash v. State, 3 S.W.3d 522, 532 (Tex. Crim. App. 1999)("It said that a waiver of trial by jury, which is forbidden in a capital case in which the State sought the death penalty, occurred when the verdict did not include a special issue which was required by the applicable statute. There are several fatal flaws in this reasoning. To begin with, if this were an improper waiver, the doctrine of invited error estops the appellant from complaining of it. Second, it is untrue on its face; the case was tried to a jury. The worst that can be said is that the jury returned a verdict which did not answer one issue.")(emphasis added).

62. 515 U.S. 506 (1995).

63. Aldrich v. State, 104 S.W.3d 890, 893 (Tex. Crim. App. 2003).

64. See Posey v. State, 966 S.W.2d 57, 63 (Tex. Crim. App. 1998)(warning against legal requirements that would "impose on defendants unwanted defensive issues in the charge").

65. See Smith v. State, 74 S.W.3d 868, 874 (Tex. Crim. App. 2002)(submission of "deliberateness" special issue cannot be waived). See also Martin v. State, 200 S.W.3d 635, 638-39 (Tex. Crim. App. 2006)(even if defendant stipulates to jurisdictional priors in a felony DWI prosecution, jury must be instructed on the elements). But a defendant may be estopped from challenging the failure to submit an element when he requested the lack of submission. Smith, 74 S.W.3d at 874; Ripkowski, 61 S.W.3d at 388-89; Prystash v. State, 3 S.W.3d 522, 531-32 (Tex. Crim. App. 1999).

66. Delgado v. State, 235 S.W.3d 244, 249-50 (Tex. Crim. App. 2007); Posey, 966 S.W.2d at 63.

67. 983 S.W.2d at 264. See also Ex parte Staley, 160 S.W.3d 56, 59 n.6 (Tex. Crim. App. 2005).

68. Compare Tex. Pen. Code ��2.03 ("Defense"), 2.04 ("Affirmative Defense").

69. See Tex. Pen. Code �19.04 (1992)("sudden passion").

70. Tex. Pen. Code �2.02.

71. Id., �8.04(b), (c).

72. Id., �15.04(d).

73. Id., �19.02(d).

78. Tex. Pen. Code �19.02(d). � � - " "

79. Hall v. State, 160 S.W.3d 24, 38 (Tex. Crim. App. 2004).

80. Art. 37.071, �2(e), (g).

81. See e.g. Art.42.12, �3g(b).

82. Art. 37.071, �2(b)(1) & (2), (g).

83. See e.g. footnotes 71-74.

84. Art. 37.071, �2(e)(2)(1999).

85. Id.

86. See, for example, Ring v. Arizona, 536 U.S. 584, 597-609 (2002) (viewing death penalty sentencing procedure in which at least one aggravating circumstance must be found to justify the death penalty [as is constitutionally required] as increasing punishment beyond the statutory maximum based upon a finding of fact, thus requiring a jury determination under Apprendi v. New Jersey, 530 U.S. 466 (2000)).

87. 686 S.W.2d 157, 171 (Tex. Crim. App. 1985)(construing Art. 36.19).

88. 966 S.W.2d at 63.

89. Delgado, 235 S.W.3d at 252 n.34 (In Huizar, this Court distinguished Posey and explained the difference between instructing the jury on "defensive" issues and instructing them on the law that is applicable to all cases)(quoting Huizar v. State, 12 S.W.3d 479, 484 n.7 (Tex. Crim. App. 2000)("In contrast to a 'defense' which depends on the defendant's theory of the case and the evidence presented, applicability of article 37.07 � 3(a) is not contingent on either party's theory of the case. Rather, article 37.07 � 3(a) is a legislatively prescribed burden of proof applicable to extraneous offense and bad act evidence admitted at punishment in all non-capital cases.")) (emphasis in original).

90. However, a general statement by defense counsel that he has no objection to the jury charge is not sufficient to effect such a waiver. Bluitt v. State, 137 S.W.3d 51, 53 (Tex. Crim. App. 2004).

91. See Miller-El v. State, 782 S.W.2d 892, 896 n.1 (Tex. Crim. App. 1990).

92. McFarland v. State, 928 S.W.2d 482, 499 (Tex. Crim. App. 1996).

93. See Salazar, 90 S.W.3d at 336-38.

94. 947 S.W.2d 262, 264 (Tex. Crim. App. 1997).

95. See Johnson v. State, 169 S.W.3d 223, 235-36 (Tex. Crim. App. 2005)(discussing Supreme Court cases, including Johnson v. United States, 520 U.S. 461, 468-69 (1997), containing the Supreme Court's "most recent list of structural errors").

96. See Jimenez v. State, 32 S.W.3d 233, 236-37 (Tex. Crim. App. 2000).

97. Although these are the main factors to be assessed in a harm analysis for the type of error before us, we do not preclude the possibility of other relevant factors in a particular case. Also, the discussion below assumes that the death penalty was assessed. A trial court's failure to allow a defendant to waive the mitigation special issue would obviously be harmless if a life sentence were imposed.

98. See Solomon, 49 S.W.3d at 366 (a few photographs of the victim and his family).

99. See Griffith v. State, 983 S.W.2d 282, 289 (Tex. Crim. App. 1998)(victim planned all family holiday celebrations, cared for cancer-ridden father, and father quit fighting the disease after the victim died).

100. See Schutz v. State, 63 S.W.3d 442, 445-46 (Tex. Crim. App. 2001)(Where the jury can legitimately infer from admissible evidence a conclusion that the expert witness was not allowed to testify to, error in permitting the expert to testify to that conclusion is more likely to be harmless).

101. Compare Art. 37.071, �2(b)(1)(future dangerousness) & (e)(mitigation) with Art. 37.071, �2(b)(2)(anti-parties) and Art. 37.0711, �3(b)(1)(deliberateness) & (3)(provocation).

102. Compare McGinn v. State, 961 S.W.2d 161, 169 (Tex. Crim. App. 1998)(no factual sufficiency review due to the highly subjective nature of the future dangerousness special issue) with Wardrip v. State, 56 S.W.3d 588, 590-91 (Tex. Crim. App. 2001)(holding that a factual sufficiency review of the deliberateness special issue could be conducted because that issue, "unlike future dangerousness, requires a finding of historical fact").

103. See Neder v. United States, 527 U.S. 1, 17-18 (1999)(omission of "materiality" element of offense harmless because jury verdict would have been the same).

104. Haley v. State, 173 S.W.3d 510, 519 (Tex. Crim. App. 2005)(appropriate to consider whether State emphasized the error in admitting extraneous offense victim-impact evidence); LaPoint v. State, 750 S.W.2d 180, 192 (Tex. Crim. App. 1988)(appropriate to consider whether prosecutor exploited erroneous instruction in closing argument); Hawkins v. State, 135 S.W.3d 72, 84 (Tex. Crim. App. 2004)(prosecutor's corrective action can be considered in determining harm).

105. Ovalle v. State, 13 S.W.3d 774, 786 (Tex. Crim. App. 2000)(other portions of the jury charge relevant to harm analysis of a jury charge error); Waldo v. State, 746 S.W.2d 750, 752-57 (Tex. Crim. App. 1988)(curative instruction can eliminate harm flowing from improper admission of evidence); Phillips v. State, 193 S.W.3d 904, 911 n.40 (Tex. Crim. App. 2006)(limiting instruction can sometimes render an error harmless) .

106. Roper v. Simmons, 543 U.S. 551 (2005)(quoting Johnson v. Texas, 509 U.S. 350, 367 (1993)).

107. Johnson, 509 U.S. at 370 ("If any jurors believed that the transient qualities of petitioner's youth made him less culpable for the murder, there is no reasonable likelihood that those jurors would have deemed themselves foreclosed from considering that in evaluating petitioner's future dangerousness. . . .Although Texas might have provided other vehicles for consideration of petitioner's youth, no additional instruction beyond that given as to future dangerousness was required in order for the jury to be able to consider the mitigating qualities of youth presented to it.").