Actuary "Ezekial 25:17 - The path of the righteous man is beset on all sides by the inequites of the selfish and the tyranny of evil men. Blessed is he that shepherds the weak from the valley of darkness for he is truly his brother's keeper, and the finder of lost children. And I will strike down upon thee with great vengeance and furious anger those who attempt to poison and destroy my brothers, and you will know my name is the Lord when I lay my vengeance upon thee."
Section 35 of the Judiciary Act of 1789, ch.20, 1 Stat. 73 , provided that in federal courts parties could manage and plead their own causes personally or by the assistance of counsel as provided by the rules of court. The Act of April 30, 1790, ch.9, 1 Stat. 118 , provided: Every person who is indicted of treason or other capital crime, “shall be allowed to make his full defense by counsel learned in the law; and the court before which he is tried, or some judge thereof, shall immediately, upon his request, assign to him such counsel not exceeding two, as he may desire, and they shall have free access to him at all reasonable hours.” It was apparently the practice almost invariably to appoint counsel for indigent defendants charged with noncapital crimes, although it may be assumed that the practice fell short often of what is now constitutionally required. W. Beaney, The Right to Counsel in American Courts 29–30 (1955).
SIXTH AMENDMENT
RIGHTS OF ACCUSED IN CRIMINAL PROSECUTIONS
COMPULSORY PROCESS
The provision requires, of course, that the defendant be afforded legal process to compel witnesses to appear,186 but another apparent purpose of the provision was to make inapplicable in federal trials the common–law rule that in cases of treason or felony the accused was not allowed to introduce witnesses in his defense.187 “The right to offer the testimony of witnesses, and to compel their attendance, if necessary, is in plain terms the right to present a defense, the right to present the defendant’s version of the facts as well as the prosecution’s to the jury so it may decide where the truth lies. Just as an accused has the right to confront the prosecution’s witnesses for the purpose of challenging their testimony, he has the right to present his own witnesses to establish a defense. This right is a fundamental element of due process of law,” applicable to states by way of the Fourteenth Amendment, and the right is violated by a state law providing that coparticipants in the same crime could not testify for one another.188
Also not constituting per se ineffective assistance is a defense counsel’s failure to file a notice of appeal, or even to consult with the defendant about an appeal. Roe v. Flores–Ortega, 120 S. Ct. 1029 (2000).
Compulsory Process for Favorable Witnesses
As a corollary to the right of confrontation, the Sixth Amendment guarantees defendants the right to use the compulsory process of the judiciary to subpoena witnesses who may provide exculpatory testimony or have other information favorable to the defense. The Sixth Amendment guarantees this right even if an indigent defendant cannot afford to pay the expenses that accompany the use of judicial resources to subpoena a witness (United States v. Webster, 750 F.2d 307 [5th Cir. 1984]). Courts may not take actions to undermine the testimony of a witness subpoenaed by the defense. For example, a trial judge who discourages a witness from testifying by issuing unnecessarily stern warnings against perjury has violated the precepts of the Sixth Amendment (Webb v. Texas, 409 U.S. 95, 93 S. Ct. 351, 34 L. Ed. 2d 330 [1972]).
Compulsory Process for Favorable Witnesses
As a corollary to the right of confrontation, the Sixth Amendment guarantees defendants the right to use the compulsory process of the judiciary to subpoena witnesses who may provide exculpatory testimony or have other information favorable to the defense. The Sixth Amendment guarantees this right even if an indigent defendant cannot afford to pay the expenses that accompany the use of judicial resources to subpoena a witness (United States v. Webster, 750 F.2d 307 [5th Cir. 1984]). Courts may not take actions to undermine the testimony of a witness subpoenaed by the defense. For example, a trial judge who discourages a witness from testifying by issuing unnecessarily stern warnings against perjury has violated the precepts of the Sixth Amendment (Webb v. Texas, 409 U.S. 95, 93 S. Ct. 351, 34 L. Ed. 2d 330 [1972]).
A statute that make
A statute that makes particular persons incompetent to testify on behalf of a defendant is similarly unconstitutional. At issue in Washington v. Texas, 388 U.S. 14, 87 S. Ct. 1920, 18 L. Ed. 2d 1019 (1967), was a state statute prohibiting accomplices from testifying for one another. Overturning the statute as a violation of the Sixth Amendment Compulsory Process Clause, the Supreme Court said that the defendant was denied the right to subpoena favorable witnesses "because the state arbitrarily denied him the right to put on the stand a witness who was physically present and mentally capable of testifying to events that he had personally observed and whose testimony was relevant and material to the defense."
Under certain circumstances the prosecution may be required to assist the defendant in locating potential witnesses. In Roviaro v. United States, 353 U.S. 53, 77 S. Ct. 623, 1 L. Ed. 2d 639 (1957), the defendant was charged with the illegal sale of heroin to "John Doe." When the prosecution refused to disclose the identity of John Doe, the Supreme Court concluded that the Sixth Amendment had been abridged because the disclosure of Doe's identity may have produced "testimony that was highly relevant and … helpful to the defense."
Defendants also have a Sixth Amendment right to testify on their own behalf. Before the American Revolution, defendants were not permitted to take the witness stand in Great Britain and in many of the colonies. The common law presumed all defendants incompetent to give reliable or credible testimony on their own behalf because of their vested interest in the outcome of the trial. Each defendant, regardless of his innocence or guilt, was declared incapable of offering truthful testimony when his life, liberty, or property were at stake. The Sixth Amendment laid this common-law rule to rest in the United States. The amendment permits, but does not require, a defendant to testify on his own behalf.
http://www.answers.com/topic/amendment-vi-to-the-u-s-constitution
Defendants do not enjoy a Sixth Amendment right to be represented by counsel during every phase of litigation that follows the initiation of formal adversarial proceedings by the state. Instead, defendants may only assert this right during "critical stages" of the proceedings (Maine v. Moulton, 474 U.S. 159, 106 S. Ct. 477, 88 L. Ed. 2d 481 [1985]). A critical stage of prosecution includes every instance in which the advice of counsel is necessary to ensure a defendant's right to a fair trial or in which the absence of counsel might impair the preparation or presentation of a defense (United States v. Hidalgo, 7 F.3d 1566 [11th Cir. 1993]).
Obviously the trial is a critical stage in any criminal proceeding, as is jury selection, sentencing, and nearly every effort by the government to elicit information from the accused, including interrogation. However, courts are divided on the issue of whether the state may perform a consensual search of a defendant's premises without the advice or presence of counsel. At the same time, courts generally agree that pretrial hearings involving issues related to bail, the suppression of evidence, or the viability of the prosecution's case all qualify as critical stages of criminal proceedings (Smith v. Lockhart, 923 F.2d 1314 [8th Cir. 1991]). The Supreme Court has ruled that the denial of counsel during a critical stage amounts to an unconstitutional deprivation of a fair trial, warranting the reversal of conviction (United States v. Cronic, 466 U.S. 648, 104 S. Ct. 2039, 80 L. Ed. 2d 657 [1984]).
Nor is the Sixth Amendment right to counsel infringed when an indigent defendant is denied a court-appointed lawyer of her choice (Ford v. Israel, 701 F.2d 689 [7th Cir. 1983]). The selection of counsel to represent an indigent defendant is within the discretion of the trial court. The attorney selected need not be a great litigator, a savvy negotiator, or the best attorney available. Rather, the court-appointed lawyer must be a member in good standing of the bar who gives the client his complete and undivided loyalty, as well as a zealous and good faith defense (United States v. Cariola, 323 F.2d 180 [3rd Cir. 1963]). The quality of representation need not be perfect but only effective and competent enough to assure the defendant due process of law (Pineda v. Bailey, 340 F.2d 162 [5th Cir. 1965]). If the attorney representing a defendant is incompetent, whether the attorney has been appointed by the court or privately retained, the Sixth Amendment right to the effective assistance of counsel has been violated.
U.S. Supreme Court
U S v. COOPER, 4 U.S. 341 (1800)
4 U.S. 341 (Dall.)
The United States
v.
Cooper.
Circuit Court, Pennsylvania District.
April Term, 1800
THE defendant, being indicted for a libel on the President, applied to the Court, for a letter to be addressed by them, to several members of congress (congress being in session) requesting their attendance as witnesses, on his behalf. In support of the application, a variety of similar cases arising under the government of Pennsylvania, were referred to.
CHASE, Justice.
The constitution gives to every man, charged with an offence, the benefit, of compulsory process, to secure the attendance of his witnesses. I do not know of any privilege to exempt members of congress from the service, or the obligations, of a subpoena, in such cases. I will not sign any letter of the kind proposed. It, upon service of a subpoena, the members of congress do not attend, a different question may arise; and it will then be time enough to decide, whether an attachment ought, or ought not, to issue. It is not a necessary consequence of non-attendance, after the service of a subpoena, that an attachment shall issue. A satisfactory reason may appear to the Court, to justify, or excuse, it.
PETERS, Justice.
The Right to Confrontation of Witnesses and Compulsory Process
The right of an accused to confront witnesses against him is a very fundamental one. "There are few subjects," the U. S. Supreme Court has said, "upon which this Court and other courts have been more nearly unanimous than in their expressions of belief that the right of confrontation and cross-examination is an essential and fundamental requirement for the kind of fair trial which is this country's constitutional goal."
Without this important Sixth Amendment right, no person on trial would be guaranteed the opportunity to cross-examine witnesses against him or have the opportunity to prove that such information was false. The trumped-up charges of faceless informers would prevail, and the right to a fair trial would become an empty promise.
The right to confrontation of witnesses applies to all defendants, in federal or state courts. The right is so fundamental that most, if not all, of the 50 states also include such a provision in their respective constitutions. It is expressed in our Missouri Constitution in Article I, Section 18(a), which states, "That in criminal prosecutions the accused shall have the right to . . , meet the witnesses against him face to face."
Over the years, this guarantee has been applied to various situations by the courts. On the basis of the confrontation clause, the courts have held that evidence given at a preliminary hearing could not be used at trial if the absence of the witness was attributable to the negligence of the prosecution. But if a witness' absence had been procured by the defendant, testimony already given at a previous trial on a different indictment could be used at a subsequent trial. The Supreme Court has emphasized that a major reason for the existence of the confrontation clause is to give "a defendant charged with crime an opportunity to cross-examine the witness against him" if at all possible.
Sometimes the exercise of the Fifth Amendment right against self-incrimination by a witness clashes with the defendant's Sixth Amendment right of confrontation. That was the case in Douglas v. Alabama, decided by the U. S. Supreme Court in 1965. In that case, the prosecutor called the defendant's alleged accomplice as a witness. The accomplice refused to testify because he pleaded his Fifth Amendment right against self-incrimination. The prosecutor then decided to "refresh" the reluctant witness' memory by reading a confession he had earlier made which implicated the defendant. The defendant objected, but was convicted and appealed. The U.S. Supreme Court ruled that the defendant's right to confrontation had been violated because the defendant had no way to cross-examine his accomplice with regard to the truth of the confession.
This right to confrontation, however, is not absolute. It may be lost by consent or even by misconduct. An example of the latter situation occurred in the case of Illinois v. Allen, which was decided by the U. S. Supreme Court in 1970. In that case the defendant, Allen, was on trial for armed robbery. Throughout the trial, Allen argued with the judge. Despite warnings from the bench, Allen continued his abusive and disruptive behavior. The judge finally ordered Allen removed from the courtroom, and he remained out of the courtroom for the balance of the prosecution's case. After his conviction on the charge, Allen appealed on the grounds that he had not been allowed in the courtroom when the prosecution called its witnesses and he was therefore denied his constitutional right to confront the witnesses against him.
The Supreme Court didn't follow Allen's reasoning when it ruled: " . . , we explicitly hold today that a defendant can lose his right to be present at trial if, after he has been warned by the judge that he will be removed if he continues his disruptive behavior, he nevertheless insists on conducting himself in a manner so disorderly, disruptive and disrespectful of the court that his trial cannot be carried on with him in the courtroom."
Another right that is related to the right of confrontation, and is every bit as fundamental to our concept of justice, is the right to compulsory process. The Missouri Constitution also provides this right in Article I, Section 18(a): "That in criminal prosecutions the accused shall have the right . . . to have process to compel the attendance of witnesses in his behalf . . ."
This provision requires, of course, that the defendant be afforded legal process to compel witnesses to appear. History also indicates that the provision was included to void the common law rule that in cases of treason or felony the accused was not allowed to introduce witnesses in his defense at all.
The Supreme Court affirmed the importance of this constitutional provision in its 1967 ruling in Washington v. Texas when it explained: "The right to offer the testimony of witnesses and to compel their attendance, if necessary, is in plain terms the right to present the defendant's version of the facts as well as the prosecution's to the jury so it may decide where the truth lies. Just as an accused has the right to confront the prosecution's witnesses for the purpose of challenging their testimony, he has the right to present his own witnesses to establish a defense. This right is a fundamental element of due process of law."
These rights of confrontation of witnesses and compulsory process -- used to assure that the defendant has a way to present evidence favorable to his cause -- are two important ways the Constitution of the United States protects our right to a fair trial. Without them, meaningful justice would be difficult to find.
January 23, 2006
The Sixth Amendment: The rights of a defendant in a criminal proceeding
BY JAMES W. HALEY JR.
Editor's Note: In 2007, the nation will celebrate the 400th anniversary of the English landing at Jamestown, Va. As we commemorate that arrival, it is important to note that our nation would not exist today were it not for the courage and willingness of early Americans to stand on principle.
Americans' foundation of individual liberty rests on the Virginia Declaration of Rights and its successor, the federal Bill of Rights. That tradition remains the standard of individual liberties guiding the world today.
Dec. 15, 2005, was Bill of Rights Day. To mark the occasion, the Free Lance-Star in Fredericksburg, Va., examined in depth this assurance of individual rights in a multi-part series that the Record-Eagle reprinted in December and is now posting here on-line.
Articles will be posted every day and will remain on-line for your reference at www.record-eagle.com/edits/know_your_rights/.
The Sixth Amendment
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.
STAFFORD, Va. - A philosophical and historical source of the concepts contained in the Bill of Rights - indeed, much of the precise language in the bill - stem directly from The Virginia Declaration of Rights, written by George Mason and adopted in 1776 by the Virginia legislature.
The Sixth Amendment to the Constitution deals with the rights of defendants in criminal prosecutions. The Founders framed many of those rights in response to perceived abuses by the British government in criminal cases. A number following each of the rights set forth in that amendment indicates that that right was specifically designated in the Virginia Declaration.
Amendment VI reads as follows:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial (1), by an impartial jury (2) of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation (3), to be confronted with the witnesses against him (4), to have the compulsory process for obtaining witnesses in his favor (5), and to have the assistance of counsel for his defense (6).
(1) A defendant is entitled to a trial in a reasonable period of time after he is arrested for a crime. The Constitution does not state, nor has the U.S. Supreme Court determined, a specific period within which a trial must begin.
But the Virginia General Assembly has. Basically, that period is five months if the accused is incarcerated and nine months if he is not. The public may not be barred from observing a criminal trial; there can be no criminal trial in secret. The defendant has a right for the public - other citizens - to actually observe the manner in which he is tried. This observation serves to insure that his, and other criminal trials, are fundamentally fair.
(2) A criminal defendant has an absolute right to be tried by a jury if that is his choice. An impartial jury is one assembled from a pool of citizens, drawn by lot, at random, from which a jury is selected. The court, the prosecutor and the defendant (through his counsel if he chooses to have counsel) make inquiry of this pool, and only those "who stand indifferent to the cause," and who swear to decide the case solely on the evidence and the law, may serve.
Though the Constitution does not specify the number of jurors, the established law of England set that number at 12 for a felony.
(3) An accused has the right to be told of the specific crime with which he is charged, to enable him to prepare a defense. In Franz Kafka's chilling novel, ``The Trial,'' the central character, Joseph K., is arrested and asks, "But what for?" He is told: "We are not authorized to tell you that." Joseph K. is ultimately executed without ever knowing with what crime he is charged.
Notification of the nature of the crime is generally called an arraignment:
The defendant is told specifically what statute he is alleged to have violated, asked if he understands what the government must prove to find him guilty under that statute, called upon to enter his plea, and asked if he wishes to be tried by a jury.
A defendant may never be tried for a crime unless he has previously been arraigned for that crime.
(4) In 1603, Sir Walter Raleigh was tried by a jury for treason against the British Crown. The government produced a letter written by, and a transcript of answers to questions put to, one Lord Cobham, in evidence against Raleigh.
Raleigh protested: "Let Cobham be here, let him speak it. Call my accuser before my face." Raleigh wanted to confront Cobham, to require him to testify in his presence, and then to cross-examine him. Raleigh's objection was overruled, the Cobham evidence admitted, and Raleigh convicted and sentenced to death.
The "confrontation" clause of the Amendment VI ensures, generally speaking, that "testimony" will never be admitted as evidence against a criminal defendant unless that testifier is physically present and testifying in the presence of the accused, face to face, and thus subject to be cross-examination.
(5) After arraignment a defendant knows the charge against him. He can prepare his defense - and his defense often requires witnesses to be in court to testify in support of that defense.
How can he insure that they will come to court? By "compulsory process" - that is, a witness subpoena, an order from the court directing a person to appear in that court, on a specific date, to testify in a specific case. If a material and necessary defense witness is served with a subpoena and does not appear, generally a defendant cannot be tried until that witness is present.
(6) A defendant has the right to the assistance of a lawyer in his defense, if he chooses to have one. Initially, this clause meant that a defendant could not be denied a lawyer by the government. However, the U.S. Supreme Court decided in 1963 that this clause was not just a shield, but a sword, and that a defendant had a right to a lawyer, at public expense, if he could not afford one.
Thus developed the public-defender systems, which provides counsel for indigent defendants, at taxpayer expense.
Amendment VI of the Constitution is a collection of words. Words do not protect criminal defendants. Judges enforcing those rights set forth in the Sixth Amendment protect criminal defendants. The oath of office taken by every judge in the United States requires that he or she swear to "support the Constitution of the United States."
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ABOUT THE WRITER
James W. Haley Jr. is a judge of the Court of Appeals of Virginia. This commentary is not intended as any statement of the law and reflects the observations only of Judge Haley individually, not those of the Court of Appeals of Virginia. Readers may write to Judge Haley at P.O. Box 69, 1300 Courthouse Road, Stafford, Va. 22555. He wrote this for The Free Lance-Star in Fredericksburg, Va.
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© 2005, The Free Lance-Star
Distributed by Knight Ridder/Tribune Information Services
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IN THE COURT OF CRIMINAL APPEALS OF TEXAS AP-74,851 PATRICK HENRY MURPHY, JR., Appellant v. THE STATE OF TEXAS ON DIRECT APPEALFROM CAUSE NO. F01-00328-T IN THE 283RD DISTRICT COURT DALLAS COUNTY PRICE, J., delivered the opinion of the Court, in which KELLER, P.J., and MEYERS, JOHNSON, KEASLER, HERVEY, HOLCOMB, and COCHRAN, JJ., joined. WOMACK, J., concurred in the result. O P I N I O N The appellant was convicted in November 2003 of capital murder.[1] Pursuant to the jury=s answers to the special issues set forth in Texas Code of Criminal Procedure Article 37.071, sections 2(b) and 2(e), the trial court sentenced the appellant to death.[2] Direct appeal to this Court is automatic.[3] The appellant raises forty-two points of error. We will affirm. A. FactsOn December 13, 2000, the appellant escaped from the Texas Department of Criminal Justice Connally Unit, along with inmates George Rivas, Larry Harper, Donald Newbury, Randy Halprin, Joseph Garcia, and Michael Rodriguez. They stole firearms and ammunition from the prison and eventually made their way to Irving, Texas, where they planned to commit the robbery of an Oshman=s Supersports store on Christmas Eve.On the evening of December 24, 2000, the group armed themselves with weapons and two-way radios and carried out their plan. Rodriguez, Halprin, Garcia, and Newbury entered Oshman=s pretending to be customers, and they were followed by Rivas and Harper, who were dressed as security guards. The appellant stayed behind inside their Suburban in the store parking lot, acting as a lookout and monitoring the Irving Police Department=s activity on a radio frequency scanner.The Oshman=s store was scheduled to close at 6:00 p.m. At about 5:45 p.m., Rivas and Harper spoke with store managers Wes Ferris and Tim Moore at the front of the store and stated that they were investigating a shoplifting ring in the area. After they showed employees a photographic lineup and viewed the store=s surveillance videotape, Rivas drew his gun and announced the robbery. The rest of the escapees surrounded the employees with their weapons drawn. The employees were told to place their hands on the counter while the escapees searched them. Ferris testified that he heard Rivas talking to someone on a two-way radio. Rivas Aasked if everything was okay outside and somebody responded saying everything was fine, the police were involved with an accident on 183.@ Rivas then made the employees walk single file to the breakroom at the back of the store, where he ordered them to face the wall and remain silent. Rodriguez and Garcia remained in the breakroom with the employees, while Rivas escorted Ferris back through the store. Rivas took a tote bag off the wall on their way to the customer service area, where he had Ferris open the registers and place the money in the bag. He also made Ferris give him the keys to his car, a white Ford Explorer parked outside. Rivas took the store surveillance tape from the video room and had Ferris empty the cash from the office safe into the bag. They then went to the gun department, and Ferris gave Newbury the key to unlock the case where the shotguns and rifles were kept. Ferris retrieved handguns from a safe, then they went back to the employee breakroom. Rivas said that he was going outside to get the vehicle and directed Rodriguez and Garcia to tie up the employees and meet him behind the store. When Rivas went outside, he encountered Misty Wright, who had arrived earlier to pick up her boyfriend, Oshman=s employee Michael Simpson. Wright testified that while waiting in her car in the parking lot, she saw the employees being patted down and walking to the back of the store in a single-file line. She became concerned and called her friend Sheila, who quickly drove to the store, parked her car, and got into Wright=s car with her. Wright testified that a man wearing a black hat and a black security jacket exited the store and walked toward a white Ford Explorer, but started walking in their direction when he heard Sheila activate her car alarm. Wright drove away and parked at a nearby restaurant, and Sheila called 911 on her cell phone. As they watched the Oshman=s store and waited for police to arrive, Wright saw the man get into the Explorer and drive around to the back of the store. Inside the store, Ferris heard someone on the radio telling Rodriguez and Garcia to hurry up and get out of the store because they Ahad company.@ Michael Simpson testified that he heard, ACome on, we got to go. We got to go. We got company.@ Rodriguez and Garcia quickly left the breakroom and told the employees not to move for ten minutes. Irving Police Officer Aubrey Hawkins was dispatched to Oshman=s on a suspicious persons call. He was the first officer to arrive on the scene. When he drove around to the loading dock area at the back of the building, the escapees shot him multiple times. Rivas and Halprin were also shot during the incident. One of the escapees pulled Hawkins out of his vehicle, and another took his handgun. As the escapees fled the scene in the Explorer, they ran over Hawkins and dragged him several feet. They then drove to a nearby apartment complex, where they met the appellant and abandoned the Explorer. When other officers arrived at Oshman=s, they found Hawkins lying face down on the ground without a pulse. The medical examiner testified that Hawkins suffered eleven gunshot wounds, some of which caused fatal injuries to his brain, lungs, and aorta, and he had other injuries that were consistent with being run over and dragged by a vehicle. Oshman=s employees identified the escapees in a photographic lineup, and the Irving police prepared warrants for the seven suspects and sent the information to law enforcement agencies throughout the nation. On December 31, 2000, the escapees checked into the Coachlight Motel and RV Park in Woodland Park, Colorado, where they lived in their RV for several weeks and claimed to be traveling missionaries. They eventually aroused the suspicions of other people staying at the RV park, who contacted the Teller County Sheriff=s Department on January 21, 2001. On January 22, local law enforcement officers and the FBI apprehended five of the escapees. When they surrounded the RV, Halprin surrendered and Harper committed suicide. Officers found firearms, cash, ammunition, two-way radios, an emergency frequency guide and scanners, a smoke grenade, and a security hat inside the RV. A bag outside the RV contained gun parts and electronic communication devices. Rivas, Rodriguez, and Garcia were captured in their Jeep at an area convenience store. Officers searched the Jeep and found firearms, cash, a two-way radio, a nightvision scope, a police scanner, and police radio frequency lists for Colorado Springs and Pueblo.The appellant and Newbury were apprehended after a standoff with police at a Holiday Inn in Colorado Springs on January 23. Officers recovered cash, firearms, ammunition, and ski masks from their hotel room. Colorado Springs police officer Matt Harrell testified that he spoke to the appellant on the telephone during the standoff at the hotel. Harrell testified the appellant told him that during the Oshman=s robbery he Awas in a truck with radio contact, with an AR-15, and he was set up to do damage from behind in a stand-off situation.@The appellant gave a written statement to Irving police officer Randall Johnson admitting his involvement in the Oshman=s robbery. He stated that he and the other escapees planned to rob Oshman=s Ato increase [their] arsenal and to get rid of the weapons [they] stole from the prison.@ Prior to the robbery, they determined the layout of the store and the number of employees and decided the roles each of the escapees would play. The appellant acted as Abackup and lookout.@ He programmed Irving police frequencies into a radio scanner and waited in the Suburban in the Oshman=s parking lot. The Suburban was loaded with weapons, including A2 357=s with magnums loads, revolvers . . . [an] AR 15 with approximately 60 rounds of ammunition, and a twelve gauge pump with 10 rounds.@ The escapees communicated with each other over walkie-talkies, and, once inside, Harper or Rivas radioed the appellant to let him know Ait was going down.@ They occasionally radioed the appellant to Asee if all was o.k. out front,@ and the appellant radioed them a few times to let them know there were some vehicles outside Aapparently waiting on someone.@ After Rivas went outside, got into an employee vehicle, and drove around the back of the store, the appellant heard on the scanner, ASuspicious activity at the Oshman[=]s.@ The appellant Agot on the walkie-talkie and [told] them to abort[;] the police were here.@ He gave them the precise location of the patrol car and the direction it was traveling. When the patrol car drove around to the back of Oshman=s, the appellant radioed, AHe=s coming around the corner, leave, leave.@ Shortly thereafter, Harper radioed the appellant and told him to go to the Apickup point.@ The appellant secured the weapons in the Suburban and drove to the apartment complex where he met the rest of the escapees. He stated that if he were pursued by police, his purpose Awas to initiate firefight with the AR 15.@During the punishment phase, the State introduced evidence that the appellant had committed the offense of burglary of a building in February 1984. He received a six-year probated sentence for the offense. In March 1984, he entered the apartment of a woman he had known in high school, tied her up, held a knife to her, and sexually assaulted her. He was convicted of aggravated sexual assault and received a fifty-year sentence. The other escapees were also serving sentences for serious offenses such as aggravated robbery, kidnapping, injury to a child, murder, capital murder, and sexual assault. After the escape an officer at the Connally Unit searched the appellant=s dormitory cubicle and found a handwritten note. The note stated: AI refuse to abide by the dictations of a police state, which Texas has surely become. Today I fire the first shot of THE NEW REV[O]LUTION. Long live freedom. Death to tyranny.@ After their escape from the Connally Unit and prior to the Oshman=s robbery, the escapees committed the robbery of a Radio Shack and an Auto Zone. An Auto Zone employee testified that he saw Rivas communicating with someone outside on a two-way radio during the robbery. The escapees took the truck of another Auto Zone employee, which police found in the parking lot of a nearby grocery store. There was an earpiece for a handheld radio in the truck bed. DNA testing of the earpiece revealed a profile that was consistent with that of the appellant.Rivas testified at punishment that he planned the escape and robberies and assigned the appellant the role of Alookout.@ Rivas confirmed that the appellant stayed outside the Oshman=s in the Suburban with their guns and gear, monitored a police scanner, and communicated with Rivas on a two-way radio. The appellant told him over the radio that there was a suspicious activity call and that the police were on their way. After Rivas went outside and drove behind the Oshman=s, the appellant radioed him and told him that a police car was coming around the corner to the back of the store. B. Sufficiency of the EvidenceIn points of error nine through twelve, the appellant argues that the evidence is legally and factually insufficient to support his conviction for capital murder. In evaluating the legal sufficiency of the evidence, we must view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt.[4] In a factual sufficiency review, we view all of the evidence in a neutral light, and we will set the verdict aside only if the evidence is so weak that the verdict is clearly wrong and manifestly unjust, or the contrary evidence is so strong that the standard of proof beyond a reasonable doubt could not have been met.[5] A clearly wrong and unjust verdict occurs where the jury=s finding is manifestly unjust, shocks the conscience, or clearly demonstrates bias.[6] The charge authorized the jury to convict the appellant of capital murder, as a party or a conspirator, under either of two theories: (1) the murder of a peace officer acting in the lawful discharge of an official duty, with knowledge that the victim was a peace officer; or, (2) murder in the course of committing or attempting to commit robbery. Because the trial court=s charge authorized the jury to convict on alternative theories, the verdict of guilt will be upheld if the evidence was sufficient on any one of the theories.[7] The appellant first argues that the State failed to prove that he knew the victim was a peace officer. This argument is refuted by the appellant=s own statement, which says in pertinent part:Rivas got into the vehicle and drove it around to the back of the store. I heard Rivas on the radio say let[=]s load it up. It was about this time that I seen [sic] the patrol car. He had entered from my right. Immediately I heard on the scanner suspicious activity at the Oshman[=]s. I got on the walkie talkie and telling [sic] them to abort the police were here. I was on the radio continuously. I never got off the radio. I gave precious [sic] location of the patrol and direction he was traveling. He traveled from my right to my left. He was just cruising. He passed the Oshman[=]s store and then picked up speed and went around back. I radioed, Ahe=s coming around the corner, leave, leave.@ The appellant next argues that he Adid not anticipate the shooting and wanted only to be away from the scene.@ In support of his argument, he points to the testimony of witness Michael Simpson and his own statement. Simpson testified that he heard a voice on the radio telling Rodriguez and Garcia, ACome on, we got to go. We got to go. We got company.@ The appellant said in his statement that he told the escapees to Aabort@ and to Aleave.@ The appellant, however, also said in his statement: AMy purpose was to if pursued by the police I was to initiate firefight with the AR 15.@ The appellant acknowledged in his statement that he knew the escapees who entered Oshman=s were armed and planned to steal more guns from the store. The evidence viewed in the light most favorable to the verdict was sufficient for a rational jury to find beyond a reasonable doubt that the appellant should have anticipated Officer Hawkins=s death.[8] The evidence viewed in a neutral light was not so weak that the verdict was clearly wrong and manifestly unjust, nor was the contrary evidence so strong that the beyond a reasonable doubt standard could not have been met. The evidence was both legally and factually sufficient to convict the appellant of capital murder. Points of error nine, ten, eleven, and twelve are overruled. In points of error thirteen and fourteen, the appellant alleges that the evidence is legally and factually insufficient to support an affirmative answer to the anti-parties special issue:Do you find from the evidence beyond a reasonable doubt that the defendant, PATRICK HENRY MURPHY, JR., did not actually cause the death of the deceased, Aubrey Hawkins, but intended to kill the deceased or another or anticipated that a human life would be taken?The appellant argues that the evidence is insufficient to show that he anticipated that a human life would be taken. The appellant again points to his written statement and Simpson=s testimony as evidence that he only intended to Aabort@ the robbery and to Aleave@ the scene. He asserts that his intentions were confirmed by Rivas=s punishment phase testimony that minimized the appellant=s involvement in the Oshman=s robbery. However, Rivas admitted that he had committed perjury three times in the past, and there were some discrepancies between his testimony and the appellant=s statement. Rivas portrayed himself as the mastermind who planned the prison escape and the robberies, and described the appellant as merely a Alookout@ during each event. The appellant said in his statement that they made a group decision to rob Oshman=s after they Aweighed the pros and cons,@ and that the escapees were Apretty much equal.@ Rivas testified that the appellant was hesitant about the Oshman=s robbery. The appellant explained in his statement, AWhat I didn=t like was so many employees,@ and, ABeing familiar to Irving I knew [police] response was very quick.@ The appellant stated that he was Ato initiate firefight@ with the AR 15 if pursued by police, but Rivas denied that this was part of the plan and testified that the weapons were in the Suburban simply because he did not want to leave them in the hotel room. The jury was free to take these discrepancies into account and to believe or disbelieve any portion of Rivas=s testimony based on their evaluation of his credibility. The appellant, by his own admission, participated in the planning of the Oshman=s robbery, prepared his weapons, and programmed police frequencies into his radio scanner. He knew that the escapees were armed and was uneasy about the large number of Oshman=s employees and the possibility of a quick police response. He alerted the escapees when Officer Hawkins arrived and gave them Hawkins=s precise location as he drove around to the back of the store. He believed that he was Ato initiate firefight@ if pursued by police, and thus a rational jury could find that he anticipated that the other escapees would do the same. The evidence viewed in the light most favorable to the verdict was sufficient for a rational jury to find beyond a reasonable doubt that the appellant anticipated that a human life would be taken. The evidence viewed in a neutral light was not so weak that the verdict was clearly wrong and manifestly unjust, nor was the contrary evidence so strong that the beyond a reasonable doubt standard could not have been met. The evidence was both legally and factually sufficient to support the jury=s affirmative answer to the anti-parties special issue. Points of error thirteen and fourteen are overruled. C. Challenges for CauseIn points of error one through six, the appellant alleges that the trial court improperly denied his challenges for cause against six venire members: Brad Richards, Don Jones, Louise Marker, Carol Cunningham, Maribel Willis, and Robert DeRossett. The appellant alleges that these venire members were challengeable for cause under Article 35.16 because they were biased either against the appellant or against some phase of law upon which he was entitled to rely.[9] To preserve error for a trial court=s erroneous denial of a challenge for cause, the appellant must show that: (1) he asserted a clear and specific challenge for cause; (2) he used a peremptory challenge on the complained-of venire member; (3) all of his peremptory challenges were exhausted; (4) his request for additional strikes was denied; and, (5) an objectionable juror sat on the jury.[10] The appellant has properly preserved error with respect to each of the challenged venire members.When the trial judge errs in overruling a challenge for cause against a venire member, the defendant is harmed if he uses a peremptory strike to remove the venire member and thereafter suffers a detriment from the loss of the strike.[11] Because the appellant received one additional peremptory challenge, he can demonstrate harm only by showing that the trial court erroneously denied at least two of his challenges for cause.[12] When reviewing a trial court=s decision to deny a challenge for cause, we look at the entire record to determine if there is sufficient evidence to support the ruling.[13] We give great deference to the trial court=s decision because the trial judge is present to observe the demeanor and tone of voice of the venire person.[14] When a venire member=s answers are vacillating, unclear, or contradictory, we accord particular deference to the trial court=s decision[15]. Brad RichardsThe appellant argues that Richards was biased against him because he was one of the ATexas Seven@ escapees. He asserts that Richards Ahad a definite opinion that an accomplice should not receive the death penalty, but after learning the trial would involve a member of the >Texas Seven= he completely reversed his view on an accomplice receiving the death penalty.@The prosecutor initially asked Richards his opinion regarding an accomplice receiving the death penalty in the following exchange:Q. Do you think accomplices should be prosecuted and ultimately receive the death penalty, depending on the facts, or would you only reserve the death penalty, if it was up to you, for the actual triggerman? A. I think it would just depend on the evidence. But I would be more inclined to I mean, I guess the circumstance could be, you know, brought down to where say maybe the getaway driver and the guy that=s holding the money, maybe those three made a pact they are not going to kill anybody, if something like that were to come out, and he on his own, did that. I would probably be more inclined, the guy that was just bagging the money and getaway driver, you know, maybe not the death penalty for those. Q. Okay. A. That=s not to say I don=t believe in it. That=s what I put on my questionnaire. I think there are circumstances that even accomplices would be associated with capital, you know, crime, such as you described that they might not be charged with the death penalty. Q. Is it something that you believe that if it were up to you, we could make you king of Texas or Governor of Texas, king of Texas, and if you were to decide about our death penalty laws, would you have a death penalty for an accomplice or would you put it just for the triggerman, the person that actually caused the death? A. I think that I would probably be more inclined to have it for the triggerman. Q. And would not have it for the accomplices? A. No. The prosecutor then asked Richards about his statement on his jury questionnaire that he had seen the media coverage of the ATexas Seven@ cases. Richards stated that he did not follow the cases closely. The prosecutor asked him if knowing this was a ATexas Seven@ case would affect him in any way, and Richards replied, AI don=t think it would.@ The prosecutor again questioned Richards regarding the death penalty for an accomplice:Q. Okay. Now, let me get back to this accomplice business. Saying what you said that if it was up to you, you probably wouldn=t have the death penalty for an accomplice. I will, also, tell you this now, that we=re prosecuting the defendant under the theory of parties as an accomplice, not the actual triggerman. Knowing how you feel about that, do you think then, you could ever assess the death penalty to someone who is not the actual triggerman, but just an accomplice situation? A. I think I could. I think before I answered it, it would just depend on the circumstances and the evidence that was, you know, provided. * * * Q. Okay. Let me ask you, then, if it gets down to it, you do feel, then, in the prosecution of someone who is not the actual triggerman, a party to the offense, an accomplice to the offense, that you could, if the evidence showed you, sentence him to death, even though, you know, he=s not the triggerman? A. Yes. Defense counsel complained to the trial court that Richards Aflipflopped@ on Awhether or not an accomplice was death worthy@ after learning that the case was one of the ATexas Seven.@ Contrary to the appellant=s assertion, Richards did not have Aa definite opinion that an accomplice should not receive the death penalty,@ and then completely reverse that opinion after learning that the appellant was a member of the ATexas Seven.@ Before the prosecutor brought up the topic of the ATexas Seven,@ Richards acknowledged that he was Amore inclined@ to reserve the death penalty for the actual triggerman, but stated that he could sentence an accomplice to death depending on the circumstances and evidence. After the prosecutor brought up the ATexas Seven,@ Richards continued to state that he could sentence an accomplice to death depending on the circumstances and evidence. The trial court did not abuse its discretion in denying the appellant=s challenge for cause on this basis. The appellant also complains that Richards Aindicated that his moral code of conduct would be stronger than the Court=s instructions.@ Defense counsel questioned Richards about this issue during the following exchange: Q. It=s been a while since you filled this [jury questionnaire] out. One of the questions was, ADo you agree with the following statement?@ And the statement was, ARegardless of what the Judge says the law is, the jury should do what they believe is the right thing.@ And you wrote, you checked the box that said yes. And you explained it by saying, AIf I believe strongly that something is right, I=m going to go with my instincts.@ And I just want to explore what you meant by that. A. And the question was about doing Q. Basically, was some people think that or regardless of what the Judge says the law is, in other words, whatever the law is, jurors should do what they believe is the right thing to do. A. Okay. I must have misinterpreted that question. I mean, if I served on the jury and I took an oath, I would do everything based by the law and not my own personal, you know, feelings. Upon further questioning by defense counsel, Richards reiterated that he Amisread@ or Amisinterpreted@ the question, and that he Awould obey what the law told him to do.@ Defense counsel explained that Richards= Asole job as a juror@ was Ato decide whether the State has proven their case beyond a reasonable doubt,@ and that as a juror he would take an oath to hold the State to that burden. Defense counsel continued to question Richards as follows:Q. Now that I have explained it that way, would you be more concerned about doing what you thought was right A. No. I would be more concerned with how the evidence was presented. Q. And then after it was presented, would you still hold the State to their burden and make them prove their case beyond a reasonable doubt? A. Yes. Q. And make them prove those Special Issues? A. Yes. Defense counsel argued to the trial court that Richards demonstrated a bias in his answers to the questionnaire and on voir dire and indicated that Ahis moral code of conduct would be stronger than the Court=s instructions.@ The trial court denied his challenge for cause, stating:Court finds that when Mr. Richards was explaining the law and had an opportunity to explain his answers he provided on the questionnaire, on further reflection he had acknowledged to the Court that he understands the law. The Court finds this juror to be qualified. The record supports the trial court=s ruling. The appellant has failed to meet his burden to show that Richards had a bias or prejudice that would have substantially impaired his ability to carry out his oath and instructions in accordance with the law.[16] Don JonesThe appellant argues that Jones was challengeable for cause because he would place the burden of proof on the defense to prove that the defendant would not be a future danger. When he was first questioned by the prosecutor, Jones acknowledged that he would not automatically answer the future dangerousness special issue in the affirmative if the appellant were convicted of capital murder. He agreed that he would listen to the punishment evidence and then decide whether the State proved beyond a reasonable doubt that there was a probability of future dangerousness. When defense counsel asked Jones if he would automatically be persuaded that the appellant would be a future danger if he were convicted of capital murder, Jones replied, ANo, I would have to hear the other facts before I could make that determination.@ Defense counsel continued to question Jones on the issue. The appellant relies on the following exchange between defense counsel and Jones to support his argument on appeal:Q. But would you need to hear anything from the defense, in order to make up your mind about probability? I mean, would you need to hear something? A. Yes, I would. Q. Okay. Can you elaborate on that? A. Yeah. Well, yeah, there again, I would need to know some background information. Q. So don=t let me put words in your mouth, please, because that just makes us stay here longer. Would you want to hear from the defendant himself about his background or his A. I don=t think I would have to hear from him, but I would think the defense would want to give some kind of explanation. Q. Okay. Then if you keeping this a hypothetical jury, on this hypothetical jury, after the jury has found somebody guilty of capital murder and you have either maybe you heard something from the State or maybe the State has not put anything on, because you can just consider the crime itself, of course, for that answer. Some capital murders will effectively answer the future dangerousness question without too much problem. In your mind, you would need to hear from the defense, in order to answer that question no? A. Yes. Q. I think that=s fair enough. So you need to hear a little bit from both sides A. Right. After defense counsel=s examination of Jones, the trial court explained to him that the law requires the State to prove the future dangerousness issue beyond a reasonable doubt, and that A[t]he defense has no burden to put on any evidence at all.@ Jones indicated that he understood, and the trial court continued:THE COURT: You said that you understand that concept. And one of her questions, would you like to have some evidence from the defendant or would you like to hear him testify? You answer was, no, I don=t have to hear from the defendant, but I might I can=t remember the exact word. I would like to hear from the defense or I would think you would hear something from the defense before I could answer that question no. Do you understand, sir, that they can sit there and do crossword puzzles, they don=t have to present any evidence at all? It=s the State=s burden to prove to you beyond a reasonable doubt Special Issue No. 1 and 2. [JONES]: Okay. I guess I misunderstood. THE COURT: Now that you understand the law, could you answer Special Issue No. 1 yes or no, depending on the evidence you hear from the State? [JONES]: Yes, I could answer that one. When the trial court explained the law to Jones, he admitted that he had been confused and agreed that he could follow the law requiring the State to prove the future dangerousness special issue beyond a reasonable doubt. The appellant has not shown that Jones had a bias that would have substantially impaired his ability to carry out his oath and instructions in accordance with the law.[17] Louise MarkerThe appellant argues that the trial court erred in denying his challenge for cause to Marker because she would shift the burden of proof to the appellant to disprove the anti-parties special issue, and she would automatically answer Ayes@ if she found the appellant guilty of capital murder. Marker first indicated that she understood the prosecutor=s explanation of the anti-parties special issue and the State=s burden of proof. However, when she was questioned by defense counsel regarding the anti-parties special issue, she expressed confusion and vacillated in her answers:Q. Okay. And the law the law doesn=t require us to do it. But what I=m hearing from you is you would need to hear something from us to answer that question no? A. If I have already decided he=s guilty, yes, I would have to hear something that would show that he did not intend. Q. I hope I haven=t confused you . . . That=s the law, that we don=t have to. But in your mind you want to hear from us. You are just answering how you really feel about that. Is that a fair statement? A. Well, I mean my understanding, right. You don=t have to give anything. You don=t have to from what I understand from what they said, you absolutely don=t even have to say a word during the whole thing and they have to prove all of this. Well, that would, also, if they could not prove these things, then I would not answer that question in that direction. Q. All right. And that=s fair. But then I asked you A. But if you are going to start, if you are going to talk, I would expect that you would be supporting what you want me to know and you would probably bring up something that maybe they didn=t know. I mean, that=s but if you are not going to talk, they are going to have to prove to me all of these things, answer those things. * * * Q. Some people say to us, actually, if I have already found them guilty of capital murder, I=ve already found, you know, that they should have known that this was going to happen. And to me they did anticipate that a human life would be taken. I would say yes to that question without even needing to hear anything else from the State or from the defense. I=ve already answered that question yes in my mind when I found him guilty. Is that A. That could happen. Q. Well A. I mean, I don=t know, but that could happen. * * * Q. And it=s your testimony or answer that you would automatically answer that question yes if you had found someone, found the defendant guilty of capital murder in the first part of the trial? A. That=s what I said, yes. Defense counsel then challenged Marker for cause because she Aexpressed the inability to follow the scheme and has predecided Special Issue No. 2,@ and the trial court directed Marker to be brought back for further questioning. Marker expressed some confusion in response to defense counsel=s questions, but indicated an understanding of the anti-parties special issue and the State=s burden of proof when the trial court explained it to her: THE COURT: But anticipated that a human life would be taken, there=s a it=s a filter. There=s a capital scheme in saying we=re going to reserve the death penalty for those people who actually caused the death, intended to cause the death, or anticipated that a human life would be taken. It=s a higher burden. So the law contemplates that simply because you found someone guilty of capital murder and then examples they=re using as an accomplice. [MARKER]: Uhhuh. THE COURT: You step back and you answer that question, did their mental state go to that higher level to impose a death sentence? It=s a filter. Does that make some sense? [MARKER]: Yeah, that makes a lot of sense. THE COURT: Okay. The parties, is that a decent explanation? Okay. Her question to you is, are you capable of stepping back and reviewing all the evidence, whether there=s more or not provided to you, and filtering these facts, whatever the facts may be, to determine whether or not the State has proven this additional or higher burden of did anticipate that a human life would be taken?[MARKER]: And you want my answer? Yes, I could do that. Defense counsel reiterated his challenge for cause, and the trial court denied it, stating as follows:You know, if you let people just talk and she=s answered to both of the issues of contention here, I told you that an hour ago. And her last response is yes, I could consider a life sentence. And with what she does on dealing with complex issues on a daily basis, I have a very good feeling that if she understands the law, if it=s given to her and she has any more than 30 minutes to deal with it, that she does understand the law and would be able to follow the law. She=s just told us that she could consider a life sentence, even though having found 1 and 2 to be in the affirmative. She=s gone back and forth. But, there again, if you get her to back up and understand the program here, I find that she is capable as exhibited in her own words that she can understand the law and can follow it. The record supports the trial court=s ruling. Marker vacillated in her answers, but ultimately stated that she understood and could follow the law when the trial court clearly explained it to her. Carol CunninghamThe appellant argues that the trial court should have granted his challenge for cause to Cunningham for several reasons. He first alleges that she was biased in favor of the death penalty. On direct examination by the prosecutor, Cunningham agreed that she was in favor of the death penalty for certain crimes and stated that she Abelieve[d] in the death penalty, if it=s needed.@ She replied in the affirmative when the prosecutor asked her if she was the type of person that Acould take pen in hand@ and answer the special issues Ain such a way that may lead to the execution of another human being.@ She explained: AI just - - I just have strong convictions about that. It=s not an opinion that I have, but a conviction. I think life is very precious. But there are consequences to all of our actions and it=s just the way I feel about it.@ She later acknowledged that she could keep an Aopen mind@ with regard to the special issues, she could consider evidence of mitigation, and she would not prejudge or automatically answer the questions based on what she heard during the guilt phase of the trial. When examined by defense counsel, Cunningham initially stated that the death penalty would be her Afirst choice@ for a defendant convicted of capital murder, but she acknowledged that she Awould have to take into account the special issues.@ Upon further questioning, she expressed some confusion and vacillated as to whether she could keep an open mind with regard to the special issues. She then stated in response to trial court questioning that she would listen to the punishment evidence and that she Acould certainly go with life imprisonment@ if warranted by the facts. When defense counsel later questioned her about the mitigation special issue, she stated, AI believe that life imprisonment needs to be taken into consideration,@ and agreed that she could answer the question in such a way that would result in a life sentence.The appellant next alleges that Cunningham was challengeable for cause because Ashe stated she would consider the parties to have the same intent based on the actions of the triggerman,@ pointing to Cunningham=s testimony in the following exchange with the prosecutor:Q. And some people we talk to, if it were up to them, you know, they may feel very strongly in favor of the death penalty for the triggerman, the guy that pulled the trigger. But if it was up to them, they wouldn=t have the death penalty available as an option for those accomplices. For whatever reason, religious, moral, or ethical, they just don=t feel a death sentence would be justified for those accomplices that didn=t actually take the life. And some people feel differently, you know. They would keep that option available for both the triggerman or the nontriggerman. Where do you kind of come down on that issue? A. Well, I don=t know if this is a valid reason or not, but if you accompany somebody who does pull the trigger, to me you are equally as capable of doing that, even though you may not have done it at the time. Q. Okay. So, you wouldn=t automatically take the death penalty off the table for the accomplice, the person that didn=t actually cause the death. Is that kind of what I hear you saying? A. Right, yes, sir. Upon further questioning by the prosecutor and defense counsel, Cunningham indicated an understanding of the anti-parties special issue and stated that she would hold the State to its burden to prove beyond a reasonable doubt that the appellant anticipated that a human life would be taken.Finally, the appellant alleges that Cunningham was challengeable for cause because she investigated the appellant=s case on the internet.[18] Cunningham stated that she looked up the ATexas Seven@ on her computer after she had appeared in the trial court four months earlier. Cunningham stated that A[i]t was a one-page thing on the Internet@ which consisted of Aa little picture of [the appellant] and a couple of paragraphs.@ She stated: AAbout the only other thing I remember about that was it seems like that he had a history of previous offenses, and I can=t remember what they were.@ When the prosecutor asked her if what she read would affect her as a juror in the case, she replied: AI don=t think that would have any bearing on the case.@ When the prosecutor asked her if she could put aside any opinions or impressions and base her verdict only on the evidence presented at trial, she responded: APut it aside? Yes.@Defense counsel continued to question Cunningham on the matter:Q. Okay. Well, and based on what you found out as part of your curiosity, what opinions have you formed about him before we even start trial? A. I really didn=t, I just didn=t have any opinions. Q. Have you formed the opinion that he has been in lots of trouble before? A. I don=t know about lots, but Q. But some? A. That=s what I read. Q. Okay. And before you start the trial, of course, you know, it=s going to be hard to get that out of your mind. You=re going to know that going in and you=re going to be thinking that while you=re listening to the evidence. A. Well, I think, I don=t mean to make a blanket statement, but I think a lot of people who are guilty of things like that, probably have been involved in other things in previous, you know, previous years, could have. So that=s not anything surprising or shocking to me. * * * Q. And, you know, it sounds to me like you have already formed at least some opinion about Mr. Murphy before we=ve even started this case. Would I be fair in saying that? A. I guess you could say that. Q. And, of course, you would, you know, it=s kind of hard to unring the bell, once you=ve heard something. I mean, that would, you=d know that once you were sitting over there in the trial and it could affect you in some way. We don=t know now how it could, but it could. Would that be fair to say? A. Yes, sir. At the conclusion of Cunningham=s voir dire, defense counsel argued that she had a Aclearly stated bias in favor of the death penalty@ and Ashe would consider the parties to have the same intent based on the actions of the triggerman.@ The trial court found her to be qualified, stating that the totality of the examination showed that she understood and could follow the law. Defense counsel argued that Cunningham read about the appellant on the internet and formed an opinion about the facts of the case and the appellant=s criminal history. The trial court again found her to be qualified, stating in pertinent part:I believe she was quite honest in her proffer that, hey, after the questionnaire, I did go look on the Internet and find out his name and recognized his picture with the beard. But, you know, I can set that aside. If she is on the jury, obviously, I will instruct her, as I have done in the past in writing and today, that she=s not to look at anything further, from any source or don=t discuss this case with anyone. I believe she understands that. She said that she could make a decision based on the evidence she hears in open court. She is once again, once she understood the law she, said, yes, I could set that aside and base my decision on the evidence I heard in court. The record supports the trial court=s ruling. Cunningham expressed that she would require the State to prove beyond a reasonable doubt that the appellant anticipated that a human life would be taken. She also demonstrated that her belief in the death penalty and her knowledge of the appellant=s criminal record would not substantially impair her ability to carry out her oath and instructions in accordance with the law.[19] Maribel WillisThe appellant asserts that Willis did not understand the special issues because she told defense counsel she would assess a life sentence if she had a reasonable doubt about the appellant=s guilt:Q. You stated when I asked you what you whether you would feel comfortable with a life sentence . . . and you said, well, if I had a doubt about something, I would give life. Right? Is that what you said? A. Correct. Q. Okay. Would we need to show you anything? A. No. Q. Okay. What would you need to have a doubt about? A. Well, if the State didn=t prove something that you are saying that he is innocent on, that they didn=t prove that he was guilty, then there=s where the doubt is.Q. Okay. So you would give life instead of death if he wasn=t proved guilty beyond a reasonable doubt? A. Correct. Defense counsel then explained that Athe question of death or life is not in the first part of the trial,@ and that if the appellant was found guilty of capital murder, then he would receive a life sentence unless the special issues were answered in a certain way: Q. And then you have to make other determinations to give them a death sentence. And those other determinations are these Special Issues we=ve been discussing. The law says that life is automatic, unless these Special Issues are answered this way. I think I hear you saying that your feelings are that if you wrote the law, the death sentence would be automatic, and it would have to be proved that the person should get life. Is that a fair statement? A. No. Q. Well, you wrote in your questionnaire A. I know what I answered. I misunderstood the question on that. But the law says that if you find him guilty, you automatically get a life sentence, but there should be other extenuating circumstances that should merit mete out the death penalty. Q. Right. A. Good. Q. Now, in your heart of hearts do you think that you can do that and really give him a life sentence, if the State failed to prove any of these things? A. If the State failed to prove, yes. Q. Okay. And would you make them prove these to you beyond a reasonable doubt? A. Yes.Defense counsel then questioned Willis regarding the anti-parties special issue. Defense counsel asked, AAnd if that person didn=t actually cause the death, what are you called upon to decide?@ Willis responded, AWhether yes or no, he=s innocent or guilty.@ The trial court clarified that Willis was Ausing the words innocent or guilty and yes or no interchangeably.@ Upon further questioning, Willis demonstrated that she understood the anti-parties question and could answer it Ayes@ or Ano.@ Defense counsel challenged Willis for cause, arguing that she did not understand the law and Astated unequivocally that she would give life, if she had a doubt as to whether or not he was guilty or not.@ The trial court disagreed and found that Willis did understand the law. The trial court=s ruling is supported by the record. The totality of the voir dire shows that Willis understood and could follow the law. The trial court did not abuse its discretion in denying the appellant=s challenges for cause to Richards, Jones, Marker, Cunningham, and Willis. Because the appellant has failed to show that at least two of his complainedof challenges for cause were erroneously denied, he cannot show harm on appeal.[20] Points of error one through six are overruled.In point of error seven, the appellant alleges that he received ineffective assistance of counsel. He states: AThis issue is being submitted contingently on whether this Court for any reason rules that the appellant=s counsel waived any complaint in the jury selection process; if the Court does not find any waiver or other attorney error, then this issue is withdrawn.@ As discussed above, defense counsel preserved error on claims one through six, which we held to be without merit. Point of error seven is overruled.D. Commitment QuestionIn point of error eight, the appellant complains that the trial court allowed the State to ask venire member J. Robert DeRossett an improper commitment question.[21] Commitment questions Acommit a prospective juror to resolve, or to refrain from resolving, an issue a certain way after learning a particular fact.@[22] A commitment question can be proper or improper, depending on whether the question leads to a valid challenge for cause.[23] Commitment questions are improper when (1) the law does not require a commitment or (2) when the question adds facts beyond those necessary to establish a challenge for cause.[24] When the law requires certain types of commitments from jurors, attorneys may ask the prospective jurors whether they can follow the law in that regard.[25] The use of a hypothetical fact situation during voir dire is permissible if it is used Ato explain the application of the law.@[26] During his voir dire questioning of DeRossett, the prosecutor explained that A[t]he law allows [the State] to prosecute not only the triggerman for capital murder and ultimately the death penalty, but also depending on the facts and circumstances, we could prosecute the accomplice, the nontriggerman.@ When the prosecutor began to give an illustrative example to show DeRossett Ahow the law works,@ the appellant objected to the use of Aa specific fact situation.@ The prosecutor responded that he intended to use a hypothetical Ato explain the law, not committing him to those facts.@ The trial court overruled the appellant=s objection and the prosecutor posed the hypothetical to DeRossett:I want to talk with you a little bit about the death penalty and its application to what we call, basically, accomplices, the common term for people that didn=t actually pull the trigger. And let me give you an example to kind of show you how the law works in Texas. Mr. Shook and I agree we=re going to rob a bank. The plan is he=s going to go in with a gun. I=m not going to be armed. I=m just going to have a bag and collect the money as he holds up the tellers. And at some point as we go to do that, for whatever reason, Mr. Shook shoots and kills the teller. And we get the money and get out of there. And ultimately we get arrested and are brought back for trial. Mr. Shook, obviously, could be convicted of capital murder, that intentional murder in the course of a robbery. Depending on how, you know, the jury answers the questions, he could receive the death penalty. The law also allows for people like me, the accomplice, the nontriggerman, depending on the facts and circumstances, to also be prosecuted for capital murder and again, depending on the facts and the answers to the questions, I could also potentially receive the death penalty. And, again, a lot of people would draw that line between the shooter and the nonshooter. What do you think about that, the death penalty for an accomplice? DeRossett indicated that he understood the law and could impose the death penalty on an accomplice. DeRossett also responded in the affirmative when the prosecutor asked the next question:I think the way you feel is exactly what the law contemplates. There are some people that just wouldn=t consider it, no matter what the facts and circumstances are. We just want somebody that can keep an open mind and follow the law. There are, basically, two different ways that I can be held responsible. If you find that I actively encouraged, directed, solicited, or aided him to commit capital murder, then I could be found guilty as an accomplice. Or if you found that we, under the law of conspiracy, if we agreed or conspired to commit one crime and during that crime, the bank robbery, Mr. Shook shot and killed the teller and committed capital murder, if the jury finds that I should have anticipated, if the accomplice should have anticipated that death, then you can find the accomplice guilty of capital murder. Does that make sense to you? The prosecutor=s hypothetical did not attempt to commit DeRossett to resolve or refrain from resolving an issue on the basis of particular facts.[27] The purpose of the hypothetical was to explain the application of the law to a capital murder case prosecuted under the law of parties.[28] If DeRossett had stated that he could not find guilt or assess the death penalty for a non-triggerman, then he would have been challengeable for cause.[29] The trial court did not abuse its discretion in allowing the prosecutor to ask the question. Point of error eight is overruled.E. Admission of Oral and Written StatementsIn point of error twenty-four, the appellant argues that the trial court erred in admitting the oral statements he made to Colorado Springs police officers during the hotel standoff. He complains that these statements Awere the result of de facto custodial interrogation@ and that the officers failed to warn him as required by Article 38.22.The appellant filed a pretrial motion in limine requesting a hearing outside the presence of the jury before the State attempted to introduce the oral statements. The trial court heard the anticipated testimony of Officers Jim Stinson and Matt Harrell and ruled the evidence admissible over the appellant=s objection.Stinson testified before the jury that, when he made initial contact with the appellant on the telephone at the hotel, he told the appellant that he was with the Colorado Springs police department, that they were looking for the remaining Texas fugitives, that the room was surrounded, and that he needed to exit the room with his hands raised so they could identify him. The appellant then stated, AWell, Detective, you found us.@ Stinson asked, AWho is this?@ and the appellant responded that he was APatrick.@ At one point in their conversation, the appellant asked Stinson if he could Aturn his phone into a speakerphone@ because Ahe needed to keep his hands free.@ When Stinson said he was unable to fulfill that request, the appellant hung up the phone. A few minutes later Stinson called back and the appellant answered the phone. Stinson asked, AWhat are you doing? What=s going on?@ and the appellant responded, AWe=re watching porn.@[30]Harrell testified before the jury that he later took over the telephone negotiations with the appellant. Harrell testified that he did not try to elicit any information about the Oshman=s incident, but that the appellant Abrought it up on his own.@ The appellant told Harrell that Ahe was in a truck with radio contact, with an AR-15, and he was set up to do damage from behind in a stand-off situation,@ and that Aduring the Oshman=s [robbery] some people acted in a wrongful manner and a police officer lost his life.@ In response to defense counsel=s questioning on cross-examination, Harrell acknowledged that the appellant said he Awouldn=t have done the Oshman=s@ before he said that Asome people acted in a wrongful manner and a police officer lost his life.@Article 38.22 applies to statements taken while a defendant is subject to custodial interrogation. Nothing in Article 38.22 precludes the admission of a statement that does not stem from custodial interrogation or that is the res gestae of the arrest or offense.[31] A defendant is in custody if, under the circumstances, a reasonable person would believe that his freedom of movement was restrained to the degree associated with a formal arrest.[32] AInterrogation@ is defined as any words or actions by the police that they should have known are reasonably likely to elicit an incriminating response.[33] The appellant=s oral statements were not the result of custodial interrogation. He made the statements while armed and unrestrained during a standoff with police.[34] The evidence showed that the police did not question the appellant about the Oshman=s incident; instead, he volunteered that information during the course of the standoff negotiations. The trial court did not abuse its discretion in admitting the statements. Point of error twenty-four is overruled.In point of error fifteen, the appellant contends that the trial court should have suppressed the written statement he gave to Irving police officer Randall Johnson after he was arrested in Colorado Springs. He asserts that he made the statement after the long standoff with police at the hotel, that he suffered from sleep deprivation and a lack of food, and that he was inadequately clothed in cold weather. He argues that his resulting state of mind and physical condition made him unable to comprehend and voluntarily waive his Miranda rights.[35] An inquiry into the waiver of Miranda rights Ahas two distinct dimensions.@[36] First, the waiver must be Avoluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception.@[37] Second, the waiver must be made Awith a full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it.@[38] However, the AConstitution does not require that a criminal suspect know and understand every possible consequence of a waiver of the Fifth Amendment privilege.@[39] It is enough that the suspect Aknows that he may choose not to talk to law enforcement officers, to talk only with counsel present, or to discontinue talking at any time.@[40] Johnson and the appellant both testified at the hearing on the motion to suppress the appellant=s statement. The evidence showed that the hotel standoff began at around 7:00 p.m. on January 23, 2001, and lasted until approximately 4:00 a.m. on January 24. The appellant was then transported to the Colorado Springs Police Department, where he met with Johnson and another Irving police officer in an interview room. Johnson read the appellant his Miranda warnings and the appellant agreed to waive his rights and give a statement. Johnson began taking his statement at 4:21 a.m. The appellant dictated his statement while Johnson wrote it down, and the taking of his statement lasted approximately two and one-half hours. He was given the opportunity to read and make changes to his statement before signing it in the presence of a civilian witness. The appellant testified that he did not understand the Miranda warnings, and that he would not have made a statement if he Ahad a chance to rest or perhaps Miranda had been explained to [him] in more detail.@ He testified that the hotel standoff was stressful and that he Ahad been operating on adrenaline@ with Avery little rest@ before he was taken into custody. He testified that he had not slept for twenty hours and he was fatigued, drowsy, and Awould nod out@ at times during the interview. Johnson testified, however, that the appellant was awake and alert during the entire interview and he never looked as if he were about to fall asleep. Johnson acknowledged that the appellant was not wearing a shirt, but denied the appellant=s assertion that he was Ashivering@ during the interview. The appellant testified that he began crying at one point, but Johnson denied that the appellant was crying or upset during the interview. The appellant testified that he had not eaten for sixteen hours, but he did not remember asking for any food. He testified that he received a soft drink and two bathroom breaks, and that no one ever threatened him or promised him anything in exchange for his statement. He acknowledged that he understood his Miranda warnings when he was arrested on two prior occasions in 1984. He also acknowledged that he understood his Miranda warnings when TDCJ investigators later questioned him after his interview with Johnson, but explained that he had the opportunity to sleep for a few hours before the TDCJ interview. He testified that he would have consulted an attorney before speaking with Johnson if he had had access to one, but acknowledged that he later agreed to continue talking with TDCJ investigators without counsel even when they informed him that an attorney was there for him. The trial court found that the appellant was interviewed shortly after the standoff ended, that it Adefie[d] logic@ that the appellant Awas on an adrenaline rush just an hour before and no longer able to stay awake during this interview.@ The trial court also found that he understood his Miranda rights when he was arrested in 1984 and when he was interviewed by TDCJ investigators following his interview with Johnson; that he was not threatened, coerced, or promised anything in exchange for his statement; and that he chose not to consult with counsel during the TDCJ interview. The trial court did not abuse its discretion in finding that the appellant Afreely and voluntarily made an informed decision to waive his rights and to provide the statement.@ Although the appellant and Johnson gave conflicting testimony, the trial court was entitled to believe Johnson.[41] In the same point of error, the appellant also claims that Ahis written statement was obtained in violation@ of Article 38.22 and Ahe did not knowingly and intelligently waive his constitutional right to counsel before giving his statement when police denied access to [him] by the public defender attorney assigned to his case and provided for by Colorado statute.@[42] These arguments are multifarious and inadequately briefed. The appellant generally asserts a violation of his Aconstitutional right to counsel,@ but fails to make a clear and concise argument in support of a Sixth Amendment claim.[43] With regard to his Article 38.22 claim, he fails to allege exactly how Article 38.22 was violated.[44] He also failed to object to his written statement on the basis of Article 38.22 at trial.[45] Point of error fifteen is overruled. In point of error sixteen, the appellant alleges that he received ineffective assistance of counsel. He states that A[t]his issue is being submitted contingently on whether this Court for any reason denies request to take judicial notice and/or finds any form of waiver or attorney error in this issue.@ To prevail on a claim of ineffective assistance of counsel, the appellant must show (1) deficient performance and (2) prejudice.[46] To show deficient performance, the appellant must prove by a preponderance of the evidence that counsel=s representation fell below the standard of professional norms.[47] To demonstrate prejudice, the appellant must show a reasonable probability that, but for counsel=s unprofessional errors, the result of the proceeding would have been different.[48] Judicial scrutiny of counsel=s performance is highly deferential, and the appellant must overcome the strong presumption that counsel=s actions were sound trial strategy.[49] Counsel failed to object at trial on the basis of Article 38.22, but the appellant fails to explain on appeal exactly how Article 38.22 was violated. The appellant complains that counsel failed to supplement the record with evidence showing that the admission of his statement violated his constitutional right to counsel, but he fails to raise a separate, clear, and concise Aright to counsel@ argument on appeal. Without more, he cannot demonstrate deficient performance and prejudice as required by Strickland. Point of error sixteen is overruled.F. Lesser Included OffenseIn his seventeenth point of error, the appellant complains that the trial court erred in refusing to instruct the jury on the lesser included offense of murder. We use a two-pronged test to determine whether a defendant is entitled to an instruction on a lesser included offense.[50] The first step is to determine if the lesser offense is included within the proof necessary to establish the offense charged.[51] The first prong of the test is satisfied here because murder is a lesser included offense of capital murder.[52] The second step is to determine if there is some evidence that would permit the jury to rationally find that if the defendant is guilty, he is guilty of the lesser offense but not the greater offense.[53] The jury was authorized to convict the appellant of capital murder, as a party or a conspirator, under either of two theories: (1) the intentional or knowing murder of a peace officer acting in the lawful discharge of an official duty; or, (2) an intentional murder in the course of committing or attempting to commit robbery. The appellant is entitled to a requested lesser included offense charge if a rational jury, after considering each of the alternative theories of commission, could convict him only on the lesser included offense.[54] The appellant argues that he was entitled to a charge on the lesser included offense of murder because Athere was no evidence of the specific intent to kill,@ but this was not required because the jury was instructed on the law of parties.[55] The evidence showed that the appellant intended to promote or assist the commission of the offense or that he should have anticipated Hawkins=s death as a result of carrying out the conspiracy to commit robbery. The appellant participated in the planning and execution of the Oshman=s robbery and alerted the other escapees when Hawkins arrived in his patrol car and drove around the back of the store. The evidence would not permit the jury to rationally find that the appellant was guilty only of murder. The appellant has thus failed to meet the second prong of the test.[56] Point of error seventeen is overruled.G. Enmund ObjectionIn point of error eighteen, the appellant alleges that his capital murder conviction is unconstitutional under Enmund v. Florida, a case in which the Supreme Court held that the Eighth Amendment does not permit imposition of the death penalty on Aone who aids and abets a felony in the course of which a murder is committed by others but who does not himself kill, attempt to kill, or intend that a killing take place or that lethal force will be employed.@[57] The appellant specifically alleges that A[t]he trial court erred in overruling [his] objection to the jury charge concerning the applicability of Sec. 7.02(b) (conspirator liability) of the law of parties as being contrary to the constitutional requirements of Enmund v. Florida, which requires that there be specific intent of the accused to kill or to cause the loss of life.@[58]The appellant=s reliance on Enmund is misplaced. Enmund prevents imposition of the death penalty under certain circumstances; it does not prohibit a capital murder conviction for a non-triggerman under the law of parties.[59] Point of error eighteen is overruled. H. Request for ElectionIn points of error nineteen and twenty, the appellant argues that the trial court erroneously denied his request to require the State to elect which theory of capital murder and which theory of party liability it sought to rely on for conviction. As discussed above, the charge authorized the jury to convict the appellant of capital murder, as a party or a conspirator, under the alternative theories of murder of a peace officer or murder in the course of committing or attempting to commit robbery. The appellant claims that the trial court=s denial of his request for an election denied him his right to a unanimous jury verdict.There is no general requirement that the jury reach agreement on the preliminary factual issues which underlie the verdict, such as the manner and means by which one offense was committed.[60] The appellant was charged with one offense, the capital murder of Aubrey Hawkins. The alleged theories of culpability and party liability were merely alternate methods or means by which the appellant committed one charged offense. Points of error nineteen and twenty are overruled.I. Independent ImpulseIn point of error twenty-one, the appellant claims that the trial court erroneously denied his requested defensive charge on independent impulse. Relying upon Mayfield v. State, he claims that he was entitled to such an instruction because he was charged as a conspirator and Athe evidence shows that [he] participated in some wrongful conduct but he did not contemplate the extent of the criminal conduct by his companions.@[61] As we explained in Solomon v. State, there is no enumerated defense of Aindependent impulse@ in the Penal Code. The appellant=s proposed defensive issue would simply negate the conspiracy liability element of the State=s case.[62] All that is required is for the appropriate portions of the jury charge to track the language of Section 7.02(b) of the Texas Penal Code.[63] Solomon overrules Mayfield to the extent that it holds to the contrary.[64] The jury charge on conspiracy liability in the instant case properly tracked the language contained in Section 7.02(b). Point of error twenty-one is overruled. J. Jury ArgumentIn point of error twenty-two, the appellant claims that the trial court erred in overruling his objection to the prosecutor=s prejudicial closing argument during the guilt phase of the trial. The appellant asserts that the prosecutor improperly argued outside the record as follows:[PROSECUTOR]: [Hawkins] was surrounded and they ambushed him. They lured him in. And the only reason they were able to do that is because of [the appellant]. You can call him all kinds of things. He was their lookout, he was their guardian angel. I=m reminded, you know, this year we=ve had troops over in Iraq fighting and we saw it on the news all the time. They talk about the guys that are on the ground. [DEFENSE COUNSEL]: I=ll have to object to arguing outside the record. THE COURT: Overruled at this time. Be careful, Mr. Shook. [PROSECUTOR]: Air controller, the guys that are out there and can target our bombs. They put the laser on the individual, the air, the building, whatever. And that allows airplanes to come in, the precision bombing. That=s what Mr. Murphy is. He allows them, he lets them know there=s a police officer here. He gives them details. He=s going out front. He=s coming around back. Generally, permissible jury argument falls into one of four areas: (1) summation of the evidence; (2) reasonable deduction from the evidence; (3) an answer to the argument of opposing counsel; or (4) a plea for law enforcement.[65] A prosecutor has wide latitude in the language and manner of arguing the State=s case consistent with the evidence.[66] A prosecutor may also use an analogy to emphasize and explain the evidence.[67] The appellant admitted in his statement that he acted as Abackup and lookout,@ sat outside the Oshman=s store in a Suburban loaded with weapons, monitored police frequencies on his radio scanner, alerted the escapees when Hawkins arrived and told them his precise location as he drove around to the back of the store, and was prepared to Ato initiate firefight@ with the AR 15 if pursued by police. Given this evidence, it was not improper for the prosecutor to compare these actions to a military ambush. Even if we were to assume error, the prosecutor=s argument did not affect the appellant=s substantial rights.[68] The argument was not extreme or manifestly improper, nor did it inject new and harmful facts into evidence.[69] Point of error twenty-two is overruled.K. Victim Impact EvidenceIn point of error twenty-three, the appellant complains that the trial court erred during the punishment phase when it admitted victim impact evidence related to the appellant=s prior conviction for aggravated sexual assault. He claims that the admission of this evidence violated his right to due process under the Fourteenth Amendment and Rules 403 and 404 of the Texas Rules of Evidence.Jeannie Grieser, the victim of the aggravated sexual assault, testified during the punishment phase. The trial court held a hearing outside the presence of the jury before allowing Grieser to testify about how the crime affected her. Grieser stated that after the attack she moved from her apartment, had trouble sleeping, had nightmares for several years, employed extra security measures, and took medication for panic attacks. The appellant objected that this was improper victim impact evidence that was irrelevant and unduly prejudicial. The trial court ruled the evidence admissible, but the State never elicited this testimony from Grieser in front of the jury. There was no error because the evidence the appellant objected to was not admitted before the jury. Point of error twenty-three is overruled.L. Authentication of Handwritten NoteIn point of error twenty-five, the appellant complains about the admission of State=s Exhibit 1010, the handwritten note that a Connally Unit officer found in his dormitory cubicle shortly after his prison escape which stated: AI refuse to abide by the dictations of a police state, which Texas has surely become. Today I fire the first shot of THE NEW REV[O]LUTION. Long live freedom. Death to tyranny.@ The appellant argues that the exhibit was not properly authenticated as required by Rule 901 of the Texas Rules of Evidence.[70] During the punishment phase, Officer Rita Samaniego testified at a hearing outside the presence of the jury that she found the handwritten note in the appellant=s cubicle when she searched the dormitory where he resided shortly after the prison escape. She testified that she was not familiar with the appellant=s handwriting and that approximately sixty or seventy other inmates were in the dormitory that day. The trial court ruled the evidence admissible over the appellant=s Rule 901 objection. Samaniego then testified before the jury that she found the note in a box under the cot in the appellant=s cubicle about thirty minutes after the escape. The note was admitted into evidence and the prosecutor read the contents of the note to the jury.The appellant argues on appeal that the note was inadmissible because it was found in a dormitory occupied by multiple inmates, Athere was absolutely no authentication of origin or former possession through any means,@ and no Ahandwriting or fingerprint analysis@ was performed. Even if we were to assume error, the appellant has failed to demonstrate that his substantial rights were affected by the admission of the note.[71] Given the other evidence of the appellant=s prior offenses of burglary of a building and aggravated sexual assault and his willing participation in a planned prison escape and multiple robberies thereafter, there is no reasonable likelihood that the note moved the jury from a state of nonpersuasion to persuasion regarding the punishment issues.[72] Point of error twenty-five is overruled.M. Texas Death Penalty StatuteThe appellant raises numerous constitutional challenges to Article 37.071 in his remaining points of error. In point of error twenty-six, he argues that the State should be required to make an affirmative showing that he is not mentally retarded, citing Atkins v. Virginia.[73] In point twentyseven, he asserts that the statute violates the Eighth Amendment because it allows the jury unlimited discretion to impose the death penalty, citing Justice Blackmun=s dissenting opinion in Callins v. Collins.[74] In point twenty-eight, he asserts that the statute violates the Eighth Amendment as interpreted in Penry v. Johnson, because Athe mitigation special issue sends mixed signals to the jury thereby rendering any verdict reached in response to that special issue intolerable and unreliable.@[75] In points twenty-nine and thirty, he complains that the statute violates the state and federal constitutions because it implicitly puts the burden on the defendant to prove the mitigation special issue. In point thirty-one, he argues that the State should instead be required to prove the absence of sufficient mitigating circumstances beyond a reasonable doubt. In point of error thirty-two, the appellant claims the statute violates the Eighth and Fourteenth Amendments by requiring at least ten Ano@ votes for the jury to return a negative answer to the punishment special issues. In point thirty-three, he complains of the failure to define the terms Aprobability,@ Acriminal acts of violence,@ and Acontinuing threat to society@ in the jury instructions. In points thirty-four and thirty-five, he argues that the statute violates the state and federal constitutions Abecause of the impossibility of simultaneously restricting the jury=s discretion to impose the death penalty while also allowing the jury unlimited discretion to consider all evidence militating against imposition of the death penalty.@ In point thirty-six, he claims that the statute is unconstitutional because it Afails to require the issue of mitigation be considered by the jury.@ In point thirty-seven, he complains that the statute fails to place the burden of proof on the State Aregarding aggravating evidence@ in the mitigation special issue. In point thirty-eight, the appellant argues that the statutory Penry special issue violates the Eighth and Fourteenth Amendments because it allows the type of openended discretion that was condemned in Furman v. Georgia.[76] In point thirty-nine, he contends that the statute is unconstitutional because it Adoes not permit meaningful appellate review.@ This Court has previously rejected all of these claims, and the appellant has given us no reason to revisit these issues here.[77] Points of error twenty-six through thirty-nine are overruled.In point of error forty, the appellant claims that the trial court erroneously denied his second motion to quash the indictment, in which he generally alleged numerous constitutional challenges to the Texas death penalty scheme. In his brief on appeal, the appellant simply re-states the general claims that he alleged in the motion, without any additional argument or authority in support thereof. His argument is both multifarious and inadequately briefed.[78] Point of error forty is overruled.In points of error forty-one and forty-two, the appellant asserts that Athe cumulative effect of the above-enumerated constitutional violations@ denied him due process of law under the Fifth and Fourteenth Amendments to the United States Constitution and due course of law under Article I, Section 19 of the Texas Constitution. This Court has recognized the proposition that a number of errors may be found harmful in their cumulative effect; however, we have rejected each of the appellant=s points of error individually. Without error, there is no cumulative effect.[79] Points of error eighteen and nineteen are overruled. We affirm the judgment of the trial court.Delivered: April 26, 2006 Do Not Publish [1]TEX. PENAL CODE ' 19.03(a).[2]TEX. CODE CRIM. PROC. Art. 37.071, ' 2(g). [3]TEX. CODE CRIM. PROC. Art. 37.071, ' 2(h)[4]See Jackson v. Virginia, 443 U.S. 307, 319 (1979).[5]Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex. Crim. App. 2004).[6]Santellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1997).[7]Rabbani v. State, 847 S.W.2d 555, 55859 (Tex. Crim. App. 1992).[8]TEX. PENAL CODE ' 7.02(b).[9]TEX. CODE CRIM. PROC. Art. 35.16(a)(9) and (c)(2). [10]Green v. State, 934 S.W.2d 92, 105 (Tex. Crim. App. 1996).[11]Demouchette v. State, 731 S.W.2d 75, 83 (Tex. Crim. App. 1986).[12]Chambers v. State, 866 S.W.2d 9, 23 (Tex. Crim. App. 1993).[13]Feldman v. State, 71 S.W.3d 738, 744 (Tex. Crim. App. 2002).[14]Ibid.[15]Ibid.[16]Feldman, 71 S.W.3d at 744.[17]Feldman, 71 S.W.3d at 744.[18] The appellant also alleges that his confrontation rights were violated because he Acould not defend himself against an unknown article a prospective juror had read,@ but he failed to object on this basis at trial. TEX. R. APP. P. 33.1.[19]Feldman, 71 S.W.3d at 744.[20]Chambers, 866 S.W.2d at 23. [21] The State posed its hypothetical to other venire members during jury selection, but the appellant specifically complains only about the portion of the record containing the voir dire examination of DeRossett. [22]Standefer v. State, 59 S.W.3d 177, 179 (Tex. Crim. App. 2001); Lydia v. State, 109 S.W.3d 495, 498 (Tex. Crim. App. 2003).[23]Standefer, 59 S.W.3d at 181.[24]Id. at 181182.[25]Id. at 181.[26]Atkins v. State, 951 S.W.2d 787, 789 (Tex. Crim. App. 1997). [27]Standefer, 59 S.W.3d at 179.[28]Atkins, 951 S.W.2d at 789.[29]TEX. CODE CRIM. PROC. Art. 35.16(b)(3). Article 35.16(b)(3) provides that the State may challenge a venire member for cause if Ahe has a bias or prejudice against any phase of the law upon which the State is entitled to rely for conviction or punishment.@ [30]In the same point of error, the appellant also argues that Athe prejudicial effect outweighed any probative value@ of his statements, specifically his Aoral statement about viewing pornography on television.@ He does not cite Rule 403, nor does he set out a separate and specific Rule 403 claim. This portion of his argument is multifarious and inadequately briefed. TEX. R. APP. P. 38.1.[31]Art. 38.22, ' 5.[32]Stansbury v. California, 511 U.S. 318, 324-26 (1994).[33]Rhode Island v. Innis, 446 U.S. 291, 302 (1980).[34]See Hernandez v. State, 819 S.W.2d 806, 815-16 (Tex. Crim. App. 1991) (holding that statements Hernandez made during a standoff after an attempted jail break were not the result of custodial interrogation).[35] Miranda v. Arizona, 384 U.S. 436 (1966).[36]Colorado v. Spring, 479 U.S. 564, 573 (1987).[37]Ibid.[38]Ibid.[39]Id. at 574.[40]Ibid.[41]See Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997) (giving almost total deference to the trial court=s rulings on questions of historical fact and on application of law to fact questions that turn upon credibility and demeanor).[42] In support of his claim that a Colorado public defender had been assigned to his case, the appellant has filed a motion requesting this Court to take judicial notice of the testimony from the trial of co-defendant Donald Keith Newberry. This is unnecessary to our resolution of point of error fifteen. [43]TEX. R. APP. P. 38.1(h).[44]Ibid.[45]TEX. R. APP. P. 33.1.[46]Strickland v. Washington, 466 U.S. 668, 687 (1984).[47]Id. at 688.[48]Id. at 694.[49]Id. at 689.[50]Rousseau v. State, 855 S.W.2d 666, 673 (Tex. Crim. App. 1993).[51]Ibid.[52]Feldman, 71 S.W.3d at 750.[53]Rousseau, 855 S.W.2d at 673.[54]Feldman, 71 S.W.3d at 752 (citing Arevalo v. State, 970 S.W.2d 547, 54849 (Tex. Crim. App. 1998)).[55]TEX. PENAL CODE '' 7.02(a) and (b).[56]Rousseau, 855 S.W.2d at 673.[57]458 U.S. 782, 797 (1982).[58] The appellant also made an Enmund objection at the punishment phase of the trial, but in his brief he cites and refers only to his objection at the guilt or innocence phase.[59]See Johnson v. State, 853 S.W.2d 527, 535 (Tex. Crim. App. 1992) (holding that an individual may be found guilty of capital murder based on the law of parties without violating Enmund).[60]Schad v. Arizona, 501 U.S. 624, 632 (1991) (plurality opinion); Kitchens v. State, 823 S.W.2d 256, 258 (Tex. Crim. App. 1991).[61]716 S.W.2d 509 (Tex. Crim. App. 1986)[62]Solomon v. State, 49 S.W.3d 356, 368 (Tex. Crim. App. 2001).[63]Ibid.[64]Ibid.[65]Cannady v. State, 11 S.W.3d 205, 213 (Tex. Crim. App. 2000).[66]Holberg v. State, 38 S.W.3d 137, 141 (Tex. Crim. App. 2000).[67]See Broussard v. State, 910 S.W.2d 952, 959 (Tex. Crim. App. 1995) (upholding prosecutor=s comparison of the appellant to a volcano when the evidence showed that the appellant behaved peaceably at times and also had a great propensity for violence). [68]TEX. R. APP. P. 44.2(b).[69]Shannon v. State, 942 S.W.2d 591, 597 (Tex. Crim. App. 1996).[70] The appellant also argues that the note Aconstituted the rankest hearsay,@ but he failed to make a hearsay objection to the note at trial. TEX. R. APP. P. 33.1.[71]TEX. R. APP. P. 44.2(b). [72]See Jones v. State, 833 S.W.2d 118, 127 (Tex. Crim. App. 1992). [73]536 U.S. 304 (2002).[74]510 U.S. 1141 (1994).[75]532 U.S. 782 (2001)[76]408 U.S. 238 (1972).[77]Escamilla v. State, 143 S.W.3d 814, 878-28 (Tex. Crim. App. 2004), cert. denied, 544 U.S. 950 (2005); Rayford v. State, 125 S.W.3d 521, 532 (Tex. Crim. App. 2003), cert. denied, 543 U.S. 823 (2004); Hughes v. State, 24 S.W.3d 833, 844 (Tex. Crim. App. 2000); Pondexter v. State, 942 S.W.2d 577, 587 (Tex. Crim. App. 1996); Russell v. State, 155 S.W.3d 176, 183 (Tex. Crim. App. 2005).[78]TEX. R. APP. P. 38.1.[79]Chamberlain v. State, 998 S.W.2d 230, 238 (Tex. Crim. App. 1999); Wyatt v. State, 23 S.W.3d 18, 30 (Tex. Crim. App. 2000).
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IN THE COURT OF CRIMINAL APPEALSOF TEXAS NO. 489-03 JOSE MEDRANO GARCIA, Appellantv.THE STATE OF TEXAS ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEWFROM THE FOURTEENTH COURT OF APPEALSBRAZORIA COUNTY Keasler, J., delivered the opinion of the Court joined by Meyers, Price, Womack, Johnson, Hervey, Holcomb, and Cochran, JJ. Keller, P.J., filed a concurring opinion in which Womack, J., joined. O P I N I O N Jose Medrano Garcia does not speak English. His jury trial had mostly English-speaking witnesses and court personnel, and the proceedings were not translated. He did not affirmatively waive his right to translation and was apparently unaware of that right. We must decide whether Garcia's conviction violates the Confrontation Clause of the Sixth Amendment to the United States Constitution. We conclude that it does.Facts and Procedural HistoryGarcia was born in Matehuala, Mexico, and attended school there through the ninth grade. He eventually came to the United States with a "green card." He does not speak, read, or write English to any appreciable degree.In January 2001, Garcia was introduced to the American legal system when he was charged with a sexual assault that had occurred several months earlier. He pleaded not guilty, was released on bond, and hired attorney Ken Bishop to help him maneuver through the system. Bishop spoke no Spanish, so the two communicated solely through Bishop's bilingual legal assistant, Herminia Montoya.PretrialThat summer, proceedings began with a pretrial hearing on July 23, 2001. The hearing encompassed pretrial motions as well as voir dire issues. The court reporter's record reflects that Aida Aluizo was "duly sworn as English/Spanish interpreter by Deputy District Clerk" for that hearing. The clerk's record also contains a document, dated July 23, 2001, in which Aluizo swears that she "will truly interpret for the witness, Joe Medrano Garcia, the testimony for which he/she may give in the cause now on trial."During voir dire, defense counsel prepared the panel for the presence of an interpreter during the trial. He told them that Garcia "doesn't speak English, so we've got some interpreters here." He asked if that might matter to anyone. One venireperson asked whether Garcia was a United States citizen, and counsel responded, "I think that - he's not a citizen, but he's here on what we call a, 'Green Card' legally."Regarding Garcia's testifying, defense counsel told the panel that Garcia did not have to testify, but that he would: "I can tell you right now that Mr. Garcia is going to testify. He wants to testify, to tell you his version of this incident, so you will be hearing from him. Now it will be through a translator. So this is one reason I asked the question a little bit earlier and mentioned about the method by which we're going to do it because he's just not quite fluent enough in English to be able to understand the questions possibly and/or respond without having a translator . . . ."TrialTrial began the next day. There is no mention in either the court reporter's record or the clerk's record of an interpreter translating the testimony throughout the trial. After the indictment was read and the court asked how the defendant would plead, Garcia did not answer. Defense counsel responded, "Not guilty, Your Honor." The court then introduced Montoya to the jury as defense counsel's legal assistant. The judge said, "She translates pretty frequently in the courts, so she's hired by the Court."The State presented testimony from seven witnesses. Most relevant to the issue before us today was the testimony of the complainant, the complainant's mother, and the police officer. The complainant, Erica Mendoza, testified that she is Garcia's cousin. She said that Garcia had asked her to go to the unemployment office with him so that she could translate for him. She agreed to do so, but when he came over, she said she would not be able to go after all. It was then, she said, that he sexually assaulted her. Mendoza's mother, Rosalina Seladon, testified later, and the court reporter's record reflects that she "testified through the duly sworn interpreter." There were some breaks during her testimony at which point there were "discussion[s] between interpreter and witness in Spanish." The judge eventually instructed Aluizo to "wait until the witness is through speaking" before translating. The "clerk's worksheet" in the clerk's record reflects that, during the testimony of "Angelina Celedon" (who is apparently the same person as Rosalina Seladon), "[Aluizo] translated for her." The police officer who served the arrest warrant on Garcia testified. During cross-examination, defense counsel asked the officer if he was "aware that Jose Garcia only spoke Spanish?" The officer responded, "I [was] told that, but from speaking to him I could tell that he could speak a little English."The defense presented the testimony of the complainant and Garcia. The court reporter's record reflects that Garcia was sworn in "through the interpreter" and testified "through the duly sworn interpreter." He testified that he did not assault Mendoza; instead, she approached him and consented to sexual contact between them.When the prosecutor cross-examined Garcia and asked if he had heard his attorney questioning the victim, Garcia replied, "No, because I don't understand a lot of English." On re-direct, defense counsel asked if Garcia had understood all of the questions that the prosecutor had asked him, and Garcia said, "I wasn't able to understand well, very well."The jury found Garcia guilty of sexual assault, and the parties reached an agreement on punishment. There was some concern about whether the punishment agreement constituted a guilty plea, and the judge said, "Well, I think what I need to do is give him all the admonitions any way." So Garcia approached the bench and at that time Aluizo was "called as the Spanish/English interpreter for the defendant, having been duly sworn as the Spanish/English Interpreter on 7/23/01."The agreement was that Garcia would serve eight years in prison and waive his right to appeal. The court then came to the sex offender registration requirements. The judge discussed having Aluizo "read those" to Garcia. He told defense counsel to "go over that" with Aluizo and "make sure he understands those and then I'll come back before you and then we'll finish the thing." The judge then said that "the record will reflect that the supplemental admonitions to defendant for sex offender registration requirements have been read by the translator . . . ."Motion for New TrialGarcia filed a motion for new trial arguing that his waiver of appeal had not been knowing and voluntary because "his comprehension of the English language and American judicial system was insufficient." He also claimed that he received ineffective assistance of counsel at trial, and he claimed generally that the verdict was contrary to the law and the evidence. A hearing was held on the motion on September 28, 2001. At the hearing, Garcia's sister-in-law testified that Garcia does not speak English. Aluizo testified that she was sworn in as the interpreter for this case. But she was not called upon to interpret the English-speaking testimony for Garcia. Rather, she interpreted Garcia's Spanish testimony for the jury. When asked why she did not simultaneously interpret the testimony for Garcia, she said, "I don't - I don't really remember why I didn't sit beside him. Normally I do. I sat at the probation table by the counselor table and - but I really don't know why I didn't sit beside him. I did tell [Montoya], Mr. Bishop's secretary, that normally I would sit beside the Defendant and I don't recall what she responded to me and, so, I just sat, you know, on the side table." She did not see Montoya interpreting for Garcia. And during punishment, she never translated what an appeal was, its importance, or possible appellate issues.Montoya testified that Garcia always spoke Spanish and Bishop spoke English so she translated for them. But she did not perform any type of interpretation for Garcia during the trial. She sat in between Garcia and Bishop. Nobody instructed her to translate the witnesses' testimony for Garcia. She didn't do it because she was "afraid that I would be called down; and I didn't want to be called down." She was afraid a translation would disrupt the proceedings. Nobody else translated for Garcia. Before this case she had never been called upon to sit during a trial and give an ongoing translation, and she was not sworn in as an interpreter in this case. Garcia did not realize that he had been found guilty until they left the courtroom. Montoya told him he had been found guilty in the stairway outside the courtroom, and he was surprised and shocked.Bishop testified that he speaks very little Spanish and Garcia speaks even less English. They had an interpreter every time they spoke. There was no translation by Montoya during trial. Bishop never advised Garcia that he had a right to an interpreter. Garcia could not understand the victim's testimony and therefore could not assist Bishop. Garcia did not understand that he had been found guilty until after the trial. Bishop never explained to Garcia what an appeal was. On cross-examination, Bishop admitted that Montoya had sat in between him and Garcia, and he could have asked her a question to ask Garcia, but he did not avail himself of this. He admitted that he never objected to the court or requested a translation for Garcia.Garcia testified with the aid of an interpreter. The "clerk's worksheet" for the motion for new trial hearing states, "Rosario Rivera Interpreter," and states, "Presario Rivera translating to Defen." Garcia testified that nobody translated the trial for him and he did not understand any of the English testimony. He had no idea that he had a right to a translator and never told anyone that he did not want a translator. After that hearing, the judge made a remark which he put on the record during the next hearing. On October 8, 2001, the hearing scheduled for argument on the motion, the judge said the following:Mr. Davis had talked to me about a remark that I had made after our last hearing, that was in the presence of Mr. Davis and the prosecutor, that . . . I think I said something to the effect that at some point in the trial I had happened to notice that Mr. Ken Bishop - he was seated over there at counsel table, on the inside; and then, [Montoya] was next; and then, the defendant and then [Aluizo], I think was on the outside. And sometime during the trial, I noticed that the testimony was not being translated. At what stage of the trial, seems like it was pretty well into the trial . . . it would have been sometime in the latter part or middle or two-third - I don't remember when - of the guilt-innocence stage. And I had mentioned to Mr. Davis that I don't recall what - who was testifying, who's testimony was significant testimony or insignificant testimony; but just don't recall. But I thought - I didn't remember whether I had remarked to anybody about it or not. If I did remark on the record, I guess it would be eventually on the record somewhere.Defense counsel then urged a new trial due to the lack of translation and ineffective assistance of counsel. Counsel argued that the lack of translation violated, among other things, his client's Sixth Amendment right to confront the witnesses against him. The State responded that confrontation clause violations must be raised at trial. The trial judge denied Garcia's motion for new trial. He noted that a written motion had never been filed for an interpreter - only an oral motion. The judge also noted that there was an oath in the record that Aluizo would interpret, but that was in response to the State's request for an interpreter. The judge considered the fact that the ultimate issue in the case was whether there was sexual contact, and that issue was fully explored at trial. The judge concluded by recognizing that an interpreter had been sworn, but "Bishop had two Spanish-speaking assistants with him flanking [Garcia] at the time of trial and during the entire time of the trial." Finally, the judge concluded that Garcia had not knowingly and intelligently waived his right to appeal.Court of AppealsOn appeal to the Court of Appeals, Garcia argued that the lack of translation during his trial violated, among other things, the Sixth Amendment's Confrontation Clause. The State responded that Garcia failed to preserve error and any error would be harmless. The Court of Appeals, in a memorandum opinion, stated that "if there is evidence an interpreter was present and available to help the defendant, a trial court does not err in failing to appoint one." (1) The court said that in this case, Bishop's legal assistant was fluent in both English and Spanish and sat next to Garcia during the trial. (2) The Court concluded that Garcia "had a translator available but did not make use of her," and as a result, the trial court did not err in failing to appoint a second interpreter. (3)We granted all four grounds of Garcia's petition for discretionary review. The first ground asks whether "a Mexican citizen who speaks and understands little or no English [can] be tried without benefit of translation, without knowledge he had a right to translation, and without affirmative waiver of the right to have the proceedings translated" under the federal constitution. Because of our resolution of this ground, we need not reach the remaining grounds.AnalysisThe Sixth Amendment to the Constitution guarantees an accused in a criminal prosecution the right to be confronted with the witnesses against him. (4) One of the most basic of the rights guaranteed by the Confrontation Clause is the accused's right to be present in the courtroom during his trial. (5) The right to be present includes the right to understand the testimony of the witnesses. (6) This is because, as Professor Wigmore notes, "no situation is more full of anguish than that of an innocent accused who cannot understand what is being testified against him." (7) We have previously acknowledged that providing an interpreter to an accused who does not understand English is required by the Confrontation Clause. (8) Indeed, we long ago recognized the prevalence of this particular problem in our state:[W]e know that in this State, especially along the Rio Grande border, our citizenship is comprised of Latin Americans who speak and understand only the Spanish language. These citizens, as also nationals of the Republic of Mexico (which was the status of appellant), when brought before the courts of this State charged with crimes against the laws of this State, are entitled to be tried according to the Constitution and laws of this State. This, of necessity, means they are entitled to be confronted by the witnesses under the same conditions as apply to all others. Equal justice so requires. The constitutional right of confrontation means something more than merely bringing the accused and the witness face to face; it embodies and carries with it the valuable right of cross-examination of the witness. Unless appellant was in some manner, either through his counsel or an interpreter, afforded knowledge of the testimony of the witness, the right of cross-examination could not be exercised by him. (9)The United States Supreme Court has also recognized that the right to confrontation and the right to be present at one's trial extend to foreign nationals. (10) The Arizona Supreme Court explains that being present at a trial without understanding the language of the witnesses "would be as though a defendant were forced to observe the proceedings from a soundproof booth or seated out of hearing at the rear of the courtroom, being able to observe but not comprehend the criminal processes whereby the state had put his freedom in jeopardy." (11) And the United States Court of Appeals for the First Circuit notes that "[t]he right to an interpreter rests most fundamentally . . . on the notion that no defendant should face the Kafkaesque (12) spectre of an incomprehensible ritual which may terminate in punishment." (13) Or as Judge Ferguson of the Ninth Circuit has said, "presence can have no meaning absent comprehension." (14) The leading case in this area, and a case strikingly similar to this one, is United States ex rel. Negron v. New York. (15) There, the Second Circuit affirmed the trial court's grant of habeas relief due to Negron's being tried without an interpreter. The government did not dispute that Negron understood no English, counsel spoke no Spanish, and there was no translation during trial. In granting habeas relief, the court noted that "most of the trial must have been a babble of voices" (16) to Negron. The court concluded that, "regardless of the probabilities of his guilt, Negron's trial lacked the basic and fundamental fairness required by the due process clause of the Fourteenth Amendment." (17) As the court explained, "Negron deserved more than to sit in total incomprehension as the trial proceeded." (18) In this case, as in Negron, the State does not dispute that Garcia does not speak English and there was no translation during trial. Indeed, it concedes in its brief that at the hearing on the motion for new trial, Garcia "established that he does not speak English and did not receive simultaneous translation of the witnesses' testimony." Garcia, like Negron, sat in "total incomprehension" (19) of his trial. He understood almost no English, and all of the witnesses but one testified in English. He received no translation of the testimony. To Garcia, like Negron, the trial must have been "a babble of voices." (20) Garcia experienced exactly what the Sixth Amendment protects against.No Interpreter vs. Ineffective InterpreterDespite this, the State argues that Garcia was not actually deprived of an interpreter at all. Instead, he had an interpreter - Montoya - who simply did not interpret. According to the State, the judge acknowledged the presence of Montoya as Garcia's interpreter both during voir dire and at the beginning of trial. So the State contends that Garcia's actual claim in this appeal is that he had an ineffective interpreter, not that he was denied an interpreter. And since Garcia's claim concerns an ineffective interpreter, the State continues, Garcia was required to preserve the error by objecting at trial.The State's characterization of the facts is not entirely accurate. Montoya was not even implicitly recognized as an interpreter during voir dire. On the contrary, the record reflects that Aluizo, not Montoya, was "duly sworn as English/Spanish interpreter by Deputy District Clerk" at that hearing. As for trial, it is true that the judge told the jury at the beginning of trial that Montoya "translates pretty frequently in the courts, so she's hired by the Court." But Montoya testified at the hearing on the motion for new trial that she did not perform any type of interpretation for Garcia during the trial. Nobody instructed her to translate the witnesses' testimony for Garcia, and she did not do so. Indeed, she had never once been called upon to sit during a trial and give an ongoing translation, and she was not sworn in as an interpreter in this case.The fact that Montoya was bilingual and sat next to Garcia did not automatically elevate her to the status of courtroom interpreter, regardless of the judge's statements to the jury. "One is not necessarily competent to translate legal proceedings because he or she is bilingual." (21) On the contrary, "[c]ourtroom interpretation is a sophisticated art, demanding not only a broad vocabulary, instant recall, and continuing judgment as to the speaker's intended meaning, but also the ability to reproduce tone and nuance, and a good working knowledge of both legal terminology and street slang." (22) We disagree with the State. Garcia is not complaining about the effectiveness of Montoya as an interpreter because Montoya was not his court interpreter. She was not sworn in by the court to interpret the trial for Garcia, she was not told to interpret the trial for Garcia, and she did not interpret the trial for Garcia. Instead, Garcia is complaining that he was denied his right to confrontation because the proceedings were not translated for him.WaiverNevertheless, we still must address the State's contention that Garcia waived error in his failure to object at trial to the lack of a translation. There is support for the State's contention that confrontation rights generally, and the right to an interpreter specifically, can be waived. We recognized that at least as far back as 1948. (23) And we repeated it in the interpreter/confrontation cases that followed, through 1971. (24) But in 1979 in Baltierra, we went a step further. There we explained that, although the right to an interpreter can be waived, it is not deemed waived if the trial court is aware "that an accused does not speak and understand the English language." (25) The State concedes in its brief that Baltierra "provides an exception to the objection requirement when the trial court is aware that an accused does not speak or understand English."We elaborated on the Baltierra exception the following year in Briones v. State. (26) That case, unlike Baltierra, involved a guilty plea. We noted that the defendant in Briones, as part of his plea, had been informed in Spanish of his right to confrontation and he had waived that right. We concluded that his waiver was "voluntarily and intelligently entered" (27) and was "an intentional relinquishment or abandonment of a known right." (28) And we recognized that Briones was different from Baltierra and Ex parte Nanes (29) because, in those cases, the defendants pleaded not guilty and did not waive their rights to confrontation. They "could not fully exercise those rights because they did not understand the English language." (30)Our leading error-preservation case today was handed down thirteen years after Briones. In Marin v. State, (31) we explained that "our system may be thought to contain rules of three distinct kinds: (1) absolute requirements and prohibitions; (2) rights of litigants which must be implemented by the system unless expressly waived; and (3) rights of litigants which are to be implemented upon request." (32) Rights contained within the last category, we said......., are subject to procedural default if the litigant does not request them at trial. The "litigant's failure to speak up" is enough to render the right forfeited. But rights in the second category hand "do not vanish so easily. Although a litigant might give them up and, indeed, has a right to do so, he is never deemed to have done so in fact unless he says so plainly, freely, and intelligently, sometimes in writing and always on the record." (33) Regarding these rights, "the judge has an independent duty to implement them absent an effective waiver by him. As a consequence, failure of the judge to implement them at trial is an error which might be urged on appeal whether or not it was first urged in the trial court." (34)The Waco Court of Appeals recently concluded that the right to an interpreter is a category-two Marin right - a right that must be implemented by the system unless expressly waived. (35) This conclusion makes sense for two reasons.First, placing the right to an interpreter in Marin's second category is a logical extension of our caselaw on the subject. Before Marin, we had concluded that the right to an interpreter could be waived, but that it would not be deemed waived if the trial judge was aware that the defendant had a language problem. In other words, if the judge is aware of the defendant's language barrier, the judge has an independent duty to ensure that the proceedings are interpreted for the defendant, absent the defendant's knowing and intelligent waiver. A category-two placement is consistent with our pre-Marin caselaw.Additionally, requiring the right to an interpreter to be implemented unless waived makes sense given the nature of the right. It would be illogical to require a non-English-speaking defendant to assert his right to an interpreter in a language he does not understand when he may very well be unaware that he has the right in the first place. The Negron court said it well:Nor are we inclined to require that an indigent, poorly educated Puerto Rican thrown into a criminal trial as his initiation to our trial system, come to that trial with a comprehension that the nature of our adversarial processes is such that he is in peril of forfeiting even the rudiments of a fair proceeding unless he insists upon them. Simply to recall the classic definition of a waiver -- "an intentional relinquishment or abandonment of a known right,"-- is a sufficient answer to the government's suggestion that Negron waived any fundamental right by his passive acquiescence in the grinding of the judicial machinery and his failure to affirmatively assert the right. For all that appears, Negron, who unaccustomed to asserting "personal rights" against the authority of the judicial arm of the state, may well not have had the sliwas clearly ghtest notion that he had any "rights" or any "privilege" to assert them. (36)The Negron court pointed out that in Pate v. Robinson, (37) the Supreme Court of the United States held that "[w]here the evidence raises a 'bona fide doubt' as to a defendant's competence to stand trial, the judge on his own motion must impanel a jury and conduct a sanity hearing" pursuant to Illinois statutes. The Supreme Court also recognized in Pate that "it is contradictory to argue that a defendant may be incompetent, and yet knowingly or intelligently 'waive' his right to have the court determine his capacity to stand trial." (38)In Negron, the court concluded that the same is true when it appears to the trial court that the defendant has a language disability. The court said that "[t]he least we can require is that a court, put on notice of a defendant's severe language difficulty, make unmistakably clear to him that he has a right to have a competent translator assist him, at state expense if need be, throughout his trial." (39) The First Circuit agrees, placing the burden squarely on the trial court's shoulders. In Carrion, the court stated that "[the trial court should] make unmistakably clear to a defendant who may have a language difficulty that he has a right to a court-appointed interpreter if the court determines that one is needed, and, whenever put on notice that there may be some significant language difficulty, the court should make such a determination of need." (40)We conclude that, when a trial judge is aware that the defendant has a problem understanding the English language, the defendant's right to have an interpreter translate the trial proceedings into a language which the defendant understands is a category-two Marin right. In these circumstances, the judge has an independent duty to implement this right in the absence of a knowing and voluntary waiver by the defendant. The judge may become aware of the defendant's language problem either by being informed of it by one or both parties or by noticing the problem sua sponte. In this case, the record reflects that at trial the judge was aware that Garcia needed a translator. The pretrial proceedings were translated for Garcia. Defense counsel discussed Garcia's language difficulty during voir dire. Garcia himself testified that he had been unable to understand the complainant's testimony. And the judge admitted on the record that at "some point" during the trial he had become aware that the proceedings were not being translated for Garcia. Since the judge was aware that Garcia had difficulty understanding English, the judge was required to ensure that the trial proceedings were translated into a language which Garcia could understand, absent an effective waiver by Garcia. And Garcia did not knowingly or voluntarily waive his right to an interpreter. Garcia's Sixth Amendment right to confront the witnesses against him was violated.Conclusion"They deafened my ears with their gabble." (41) So said Kafka's Josef K. of his trial. Garcia might well make the same assertion. Like Negron, Garcia "deserved more than to sit in total incomprehension as the trial proceeded." (42) We sustain Garcia's first ground for review and dismiss the remaining grounds. We reverse the Court of Appeals' judgment and remand the case to that court for an assessment of harm. (43)DATE DELIVERED: March 24, 2004PUBLISH 1. Garcia v. State, No. 14-01-00949-CR, slip op. at 2 (Tex. App. - Houston [14th], November 14, 2002) (not designated for publication). 2. Ibid. 3. Ibid. 4. U.S. Const. Amend. VI; Davis v. Alaska, 415 U.S. 308, 315 (1974). 5. Illinois v. Allen, 397 U.S. 337, 338 (1970). See also United States v. Gagnon, 470 U.S. 522, 526 (1985). 6. Baltierra v. State, 586 S.W.2d 553, 556-57 (Tex. Crim. App. 1979). See also Luu v. People, 841 P.2d 271, 273 n.3 (Colo. 1992); State v. Heredia, 754 A.2d 114, 122 (Conn. 2000); Martinez Chavez v. State, 534 N.E.2d 731, 737 (Ind. 1989); State v. Calderon, 270 Kan. 241, 245 (Kan. 2000); 5 John W. Wigmore, Evidence § 1393 (Chadbourn Rev. Ed. 1974). 7. Wigmore, supra note 6. 8. See Baltierra, 586 S.W.2d at 556-59; Ex Parte Marez, 464 S.W.2d 866, 867 (Tex. Crim. App. 1971). 9. Garcia v. State, 151 Tex. Crim. 593, 601, 210 S.W.2d 574, 580 (1948). See also Baltierra, 586 S.W.2d at 557. 10. Wong Wing v. United States, 163 U.S. 228, 238 (1896). 11. State v. Natividad, 526 P.2d 730, 733 (Ariz. 1974). 12. See Franz Kafka, The Trial (Penguin 1953). 13. United States v. Carrion, 488 F.2d 12, 14 (1st Cir. 1973). See also United States v. Quesada Mosquera, 816 F. Supp. 168, 173 (E.D. N.Y. 1993); Ko v. United States, 722 A.2d 830, 834 (D.C. 1998); People v. Escalante, 627 N.E.2d 1222, 1228 (Ill. App. 1994); Martinez v. State, 449 N.E.2d 307, 309 (Ind. App. 1983); State v. Lopes, 805 So. 2d 124, 126 n.2 (La. 2001); Commonwealth v. Garcia, 399 N.E.2d 460, 470 (Mass. 1980); State v. Woo Won Choi, 781 P.2d 505, 508 (Wash. App. 1989); State v. Neave, 344 N.W.2d 181, 187 (Wisc. 1984). 14. Tejeda-Mata v. I.N.S., 626 F.2d 721, 728 (9th Cir. 1980) (Ferguson, J., dissenting). 15. 434 F.2d 386 (2d Cir. 1970). See also Baltierra, 586 S.W.2d at 556, 559. 16. Negron, 434 F.2d at 388. See also People v. Aguilar, 677 P.2d 1198, 1204 (Cal. 1984); People v. Avila, 797 P.2d 804, 805 (Colo. App. 1990); Ko, 722 A.2d at 834; Martinez, 449 N.E.2d at 309; State v. Karaarslan, 619 A.2d 1346 (N.J. Super. 1993). 17. Negron, 434 F.2d at 389. 18. Id. at 390. See also United States v. Si, 333 F.3d 1041, 1042 (9th Cir. 2003); Escalante, 627 N.E.2d at 1227; Neave, 344 N.W.2d at 187. 19. Negron, 434 F.2d at 390. 20. See id. at 388. 21. Virginia E. Hench, What Kind of Hearing? Some Thoughts on Due Process for the Non-English-Speaking Criminal Defendant, 24 T. Marshall L. Rev. 251 (1999), citing Attorneys Guide to the Use of Court Interpreters, With An English and Spanish Glossary of Criminal Law Terms, 8 U. Cal. Davis L. Rev. 471, 479 (1975). 22. Id., citing Sanders, Libertad and Justice for All: A Shortage of Interpreters is Leaving the Courts Speechless, Time Magazine 65 ( May 29, 1989), and Attorneys Guide to the Use of Court Interpreters, With An English and Spanish Glossary of Criminal Law Terms, supra note 21. 23. Garcia, 210 S.W.2d at 579. 24. See Field v. State, 232 S.W.2d 717, 718 (Tex. Crim. App. 1950) (op. on reh'g); Marez, 464 S.W.2d at 867. 25. Baltierra, 586 S.W.2d at 559. 26. 595 S.W.2d 546 (Tex. Crim. App. 1980). 27. Briones, 595 S.W.2d at 548. 28. Ibid. 29. 558 S.W.2d 893 (Tex. Crim. App. 1977). 30. Briones, 595 S.W.2d at 548. 31. 851 S.W.2d 275 (Tex. Crim. App. 1993). 32. Id. at 279. 33. Id. at 280. 34. Ibid. 35. See Guerrero v. State, 2003 Tex. App. LEXIS 6443 *8, 2003 WL 21815380 *3 (Tex. App. - Waco, July 23, 2003). 36. Negron, 434 F.2d at 390 (internal citations omitted). 37. 383 U.S. 375, 385 (1966). 38. Id. at 384. 39. Negron, 434 F.2d at 390-91. 40. Carrion, 488 F.2d at 15. 41. Kafka, supra note 12, at 51. 42. See Negron, 434 F.2d at 390. 43. See Rule 44.2(a); Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986).
Look in their EYES. What do you feel?
GOD of Love, A Good Soul's Spirit Censored or an Evil Deed deserved of a Life Sentence. Is this Man fit to be caged?
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