NO. 73,672






Womack, J., delivered the opinion for a unanimous Court.

The appellant was convicted on August 27, 1999 of capital murder. Tex. Penal Code sec.19.03(a). R Pursuant to the jury's answers to the special issues set forth in Code of Criminal Procedure article 37.071 sections 2(b) and 2(e), the trial judge sentenced the appellant to death. Art. 37.071 sec. 2(g). (1) Direct appeal to this Court is automatic. Art. 37.071, sec. 2(h). The appellant raises twenty-five points of error including challenges to the sufficiency of the evidence at the punishment phase. We shall affirm.


In July of 1997, 59-year-old Louis "Buddy" Musso, the victim in this case, first met either the appellant or her son, James "J.D." O'Malley, at a church carnival in New Jersey. Musso, though mentally retarded, lived independently, held a job at a local grocery store, and handled his own financial affairs. In June of 1998, Musso left New Jersey to live with the appellant in Jacinto City, Texas. Shortly after Musso moved in with the appellant, Al Becker, Musso's Social Security representative payee and friend of twenty years, began having difficulty contacting Musso. Becker had numerous telephone conversations with the appellant, but the appellant eventually refused to allow him to communicate directly with Musso. Concerned about Musso's welfare, Becker sought assistance from various Texas state agencies, but was not able to gain any further information about Musso's situation.

In July of 1998, the appellant unsuccessfully attempted to designate herself as Musso's representative payee of his Social Security benefits. On an application for a life insurance policy on Musso, the appellant was named beneficiary, and she had described herself as Musso's "wife to be." After Musso's death, police found certificates of insurance for policies in Musso's name, including one that provided $65,000 in the event of Musso's death from violent crime. They also discovered a document entitled Musso's "Last Will and Testament," which purported to leave Musso's entire estate to the appellant while "no one else [was] to get a cent."

In the days leading up to his death, Musso suffered tremendous abuse at the hands of the appellant and her five co-defendants. The appellant would take Musso to the apartment of co-defendants Bernice Ahrens, Craig and Hope Ahrens (Bernice's son and daughter), and Terence Singleton (Hope's fiancé), where Musso was forced to remain seated or in a kneeling position on a plastic mat in the hallway for hours. Whenever Musso attempted to get off the mat, O'Malley would beat or kick him. O'Malley, Singleton, Bernice, and Craig beat Musso, and O'Malley, while wearing combat boots, kicked him repeatedly. The appellant beat Musso with a baseball bat on the buttocks, back, and groin area, and both she and Hope struck him with a belt and buckle. After hearing that Musso had been "misbehaving" while she was away from the apartment, the appellant, who weighed over 300 pounds, repeatedly jumped on top of Musso while he was on his hands and knees, causing him to fall flat on the ground. At one point, Musso requested that someone there call an ambulance. Even though Hope, as she later admitted, recognized the extent of Musso's injuries, he received no medical attention. Someone (the evidence suggests either O'Malley or Singleton and Craig) bathed Musso in a solution of bleach and Pine-Sol cleaning fluid, using a wire brush on his body. Apparently, his killers were giving Musso this kind of "bath" when he died.

On the morning of August 28, 1999, Musso's body was found dumped near a roadway in Galena Park. Because Musso's clothes lacked any blood stains, and his only shoe was on the wrong foot, investigators believed that his body had been dressed after he died. The medical examiner reported an extraordinary number of injuries to Musso's body and was unable to count the "hundreds" of bruises that covered Musso from head to toe. The palms of Musso's hands and the soles of his feet were bruised, while his back and buttocks showed numerous lash marks indicative of his having been whipped. Musso's severely blackened eyes resulted from a "hinge fracture" to his skull, which probably was caused by a blow to the back of the head. He had sustained broken bones in his nose, ribs, and throat. Marks on his back appeared to be cigarette burns, but may have been caused by a hot poker, and the medical examiner noted areas of skin abrasion possibly attributable to contact with a cleaning solution or scrub brush. The cause of death was believed to have been a skull fracture from an unknown object, which left a large, X-shaped laceration in Musso's scalp.

On the evening before Musso's body was discovered, the appellant began what evolved into a lengthy attempt to establish that Musso had run away. She made several phone calls to people, including Becker, a niece of Musso's, and the local police, expressing concern about Musso's whereabouts. The appellant claimed that Musso probably had run away with a "little Mexican lady" that he had met at a laundromat and said that she was "getting kind of worried" about him. In a written statement to police, the appellant later confessed to having driven Bernice Ahrens's car, with Musso's body in the trunk, to the site where O'Malley, Singleton, and Craig Ahrens dumped the body. She also admitted driving the car to the dumpster where the others disposed of additional incriminating evidence, including bloody clothes and rubber gloves, which the police had found as a result of O'Malley's confession.

Sufficiency of the Evidence - Future Dangerousness

In points of error twenty-three and twenty-four, the appellant claims that the evidence is legally and factually insufficient to support a sentence of death. Specifically, the appellant argues that the evidence precludes an affirmative answer to the special punishment issue regarding her "future dangerousness." See Tex. Code Crim. Proc. 37.071 sec. (b)(1)(requiring that a jury determine "whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society").

In reviewing the legal sufficiency of the evidence for punishment issues, this Court examines "the evidence in the light most favorable to the verdict in order to determine whether any rational trier of fact could have affirmatively answered the punishment issue beyond a reasonable doubt." Dinkins v. State, 894 S.W.2d 330, 357-58 (Tex. Cr. App. 1994). We previously have set forth a non-exclusive set of factors relevant to a review of the legal sufficiency of the evidence to support an affirmative answer to the future dangerousness issue. See Keeton v. State, 724 S.W.2d 58 (Tex. Cr. App. 1987). (2)

Notwithstanding consideration of the Keeton factors, "the circumstances of the offense 'can be among the most revealing evidence of future dangerousness and alone may be sufficient to support an affirmative answer to that special issue.'" Wilson v. State, 7 S.W.3d 136, 142 (Tex. Cr. App. 1999), quoting Bell v. State, 938 S.W.2d 35, 41 (Tex. Cr. App. 1996). The State contends that this is a case in which the circumstances of the crime clearly and sufficiently demonstrate the future danger that the appellant poses to society. We agree.

The appellant participated directly in the atrocious treatment of Musso in the days leading up to his death. She physically abused Musso and directed O'Malley to do so as well. Furthermore, the evidence reveals that the appellant maintained an authoritative role among the group of co-defendants and explicitly encouraged the continued abuse. The evidence suggests that the appellant financially exploited Musso while he was under her control and that she murdered him for the expected insurance benefits. The punishment stage revealed evidence of the appellant's criminal history, which included a forgery conviction and prior felony probation. The appellant's daughter and son-in-law testified to her physical, emotional, and sexual abuse of her son and to her highly manipulative character. Based on the evidence, the jury could have found beyond a reasonable doubt that the appellant probably would be a continuing threat to society. Point of error twenty-three is overruled.

While this Court is able to review the legal sufficiency of the evidence with respect to the future dangerousness issue, we do not conduct factual sufficiency reviews of this punishment issue. See Ex parte McGinn, 961 S.W.2d 161, 169 (Tex. Cr. App. 1998); Chamberlain v. State, 998 S.W.2d 230, 233 (Tex. Cr. App. 1999). Point of error twenty-four is overruled.

Medication of Appellant During Trial

In her first and second points of error, the appellant claims that she was involuntarily medicated while in jail during the guilt and punishment stages of her trial, that her attorneys received no notice from the State of her treatment, and that she was denied a fair trial as a result. The appellant argues that the "State's secretive medicating" of her violated (1) her right to due process under the Fifth and Fourteenth amendments to the United States Constitution, (2) her right to demonstrate her true mental state to the jury, and (3) her right to effective representation by counsel, as she was unable to communicate effectively with her attorneys during trial. Citing Riggins v. Nevada, 504 U.S. 127 (1992), the appellant insists that the State's failure to show the necessity of the medication to the achievement of an essential state policy means that the appellant's constitutional rights were violated by the treatment.

The State, on the other hand, argues that the Riggins standard is inapplicable to this case because the record does not show that the appellant received her medication "involuntarily." We agree. In Ex parte Thomas, 906 S.W.2d 22, 24-25 (Tex. Cr. App. 1995), we held that in order for the Riggins test to apply, the record must affirmatively reflect that the defendant was "forcibly medicated." While in jail, the appellant received daily doses of Zoloft, an anti-depressant drug, and Trazadone, medication to treat her insomnia. However, there is no indication that her taking these drugs was involuntary. In fact, the appellant herself requested Ativan (medication she had used in the past) to alleviate her anxiety problems, and a state psychiatrist prescribed the Zoloft and Trazadone only after advising the appellant of the recommended treatment and receiving the appellant's consent.

Even if, as the appellant contends, the side effects of the prescribed medication frustrated her communications with her defense attorneys, this was a consequence of the appellant's own choices. The fact remains that the appellant's use of prescription drugs was voluntary. Similarly, defense counsel's lack of notice regarding the appellant's medication (though not relevant to whether the treatment was voluntary) was due to the appellant's failure to inform her attorneys of her treatment. In this situation, the appellant cannot reasonably argue that she was deprived of due process by circumstances arising from her own voluntary actions. Points of error one and two are overruled.

Denial of Request for Funds for Medical Experts In point of error three, the appellant argues that the trial court erred in denying the defense's request for state-funded medical tests to determine the cause of the appellant's physical disabilities. Throughout the trial, the appellant remained confined to a wheelchair, and certain evidence showed that she was unable to walk. The State, however, presented evidence that over the course of her medical treatment while in State custody, the appellant had "feigned illness" and had "cried wolf" to the extent that her treating physicians were unable to identify any specific disorder. Following her trial, but prior to the hearing on the motion for new trial, the appellant underwent an electromyelogram (EMG) to test the quality of the nerves in her legs. The results showed some level of nerve damage. The defense wished to hire medical experts to perform additional tests - biopsies on the appellant's muscle and nerve fibre in her legs - in order to establish that the appellant suffered from legitimate ailments and was not simply "malingering" or "faking" her condition as the State claimed. According to the appellant, evidence of her true physical disabilities (1) would have suggested to the jury that the appellant was physically unable to commit the acts of which she stood accused and (2) would have provided sufficient mitigation at the punishment stage. The defense made its request for medical experts during a hearing on its motion for new trial. The trial court denied the request.

The Supreme Court has acknowledged an indigent defendant's right to expert medical assistance provided by the State. See Ake v. Oklahoma, 470 U.S. 68 (1985)(holding that the appellant was entitled to psychiatric assistance in preparation for and in presentation of his insanity defense). Two aspects of Ake are significant in that they demonstrate its limited holding with respect to this case. First, the Court focused its discussion on the necessity of medical experts in "the building of an effective defense" Id. at 77 (emphasis added). The Court emphasized a defendant's right to an expert who will help "to present testimony[] and to assist in preparing the cross-examination of a State's [expert] witness" and assist "in evaluation, preparation and presentation of [a] defense," yet it did not discuss the right to such assistance in a post-trial context. Id. at 82, 83 (emphasis added).

Second, the Supreme Court discussed at length the important role of medical experts in "enabl[ing] the jury to make its most accurate determination of the truth on the issues before them." See id. at 80-81. This characterization of expert testimony as an aide to jurors in their evaluation of scientific evidence indicates a primary concern for a "defendant's ability to marshal his defense" during trial. We know of no case in which this Court has extended a defendant's right to appointed medical experts to post-trial proceedings, and we decline to do so here.

Furthermore, even if the trial court had approved the appellant's post-trial request for the appointment of medical experts, there is nothing to suggest that additional testing would have yielded results relevant to the appellant's motion for new trial. At that time, the record already reflected the nerve damage in the appellant's legs, and the question whether further testing would establish the appellant's right to a new trial was within the trial court's discretion. The trial court did not abuse that discretion in denying the appellant's request. Point of error three is overruled.

Denial of Ex Parte Hearing on and Request for Expert Assistance

In point of error four, the appellant claims that the trial court erred in denying her an ex parte hearing on her motion for expert assistance and funds to pay for such assistance. According to the appellant, her defense required testimony regarding false confessions and mitigation issues. After the defense submitted written motions requesting funds to hire such experts ("Ake" motions), the trial court refused to hold an ex parte hearing on the motions.

In Williams v. State, 958 S.W.2d 186, 194 (Tex. Cr. App. 1997), we held that "an indigent defendant is entitled, upon proper request, to make his Ake motion ex parte" and that it was error for the trial court to overrule the appellant's request for an ex parte hearing. The need for an ex parte hearing on an Ake motion arises from the nature of the information that the court must evaluate in ruling on the motion. Requiring a defendant to make a preliminary showing of need in order to prevail in his request for expert assistance forces the defense to disclose its theories or "work product." Id. at 193. Therefore, our concern in Williams was protecting the confidentiality of an indigent defendant's trial strategy while still allowing him to seek the expert assistance to which he was entitled under Ake.

Even if the trial court erred, in this case, "its failure to allow [the] appellant to make [her] Ake motion ex parte was harmless beyond a reasonable doubt." See Williams, 958 S.W.2d at 194. (3) Here, the appellant does not claim she was harmed by having to reveal to the State any defensive "work product" or trial theory. The appellant essentially argues that the lack of an ex parte hearing deprived her of the opportunity to demonstrate a "compelling need" for certain experts. However, she does not claim that an ex parte hearing would have revealed anything more than the information already presented in her written motions. As discussed below, the appellant was not entitled to the expert assistance she requested, and the trial court would have been justified in denying her motions even after hearing them ex parte. Therefore, the court's refusal to hold the hearing was harmless.

The appellant further argues that the trial court erred in denying her motion for expert assistance on false confessions and mitigation issues. To receive court-appointed expert assistance under Ake, an indigent defendant first must make a "preliminary showing of a significant issue of fact on which the State would present expert testimony, and which the knowledge of a lay jury would not be expected to encompass." Jackson v. State, 992 S.W.2d 469, 474 (Tex. Cr. App. 1999).

The appellant provides no basis for her need for an expert on false confessions and makes no showing that the falsity of her confession was a "significant issue" in her trial. In fact, as the State points out, the trial court held a hearing on the appellant's motion to suppress her confession to police, and no evidence of coercion or "falsity" of the confession was produced. Also, a sufficient amount of the State's evidence at trial corroborated the confession, and the State did not offer any expert testimony on the veracity of the statement. Furthermore, we agree that this issue is not of the kind that requires scientific or other expert testimony to assist the jury in its determination of the relevant facts.

The appellant's need for expert assistance on "mitigation" is also questionable. The appellant claims that although the defense had access to two psychologists - one of whom was court-appointed - these individuals lacked sufficient expertise in the "field of mitigation." The appellant also complains that the testimony of one of these psychologists "was probably as helpful for the State as [it] was for the defense." While an indigent defendant has a right to expert assistance, he is not necessarily entitled to "choose [an expert] of his personal liking," nor is the State required to "purchase for the indigent defendant all the assistance that his wealthier counterpart might buy[.]" Ake, 470 U.S. at 83, 77. In this case, the expert who was retained with court-authorized funds was a licensed attorney and psychologist. He assisted the defense in the areas of mitigation and future dangerousness as they specifically related to the appellant. The appellant received competent expert assistance on the issue of mitigation, and the trial court did not err in refusing to provide an additional expert on this issue. Point of error four is overruled.

Ineffective Assistance of Counsel - Failure to Request Expert Medical Assistance

The appellant's fifth and sixth points of error claim ineffective assistance of counsel at both the guilt and punishment stages of trial due to defense counsel's failure to request appointed expert medical assistance. The appellant argues that an effective defense required contradiction of the State's allegations of her "malingering" and "manipulative" behavior with respect to her physical condition at her competency hearing. Prior to trial, the defense did not request funds to hire the medical experts that the appellant now claims she needed to show that her physical impairments were in fact genuine. The appellant contends that as a result, she was denied a fair trial. She claims that had she been able to present evidence of her disabilities, she would have been found incompetent to stand trial or, alternatively, would not have received a death sentence.

To prevail on a claim of ineffective assistance of counsel, the appellant must satisfy, by a preponderance of the evidence, a two-pronged test. See Strickland v. Washington, 466 U.S. 668 (1984). First, the appellant must show deficient performance on the part of defense counsel. Id. at 687. This requires a showing that counsel's performance "fell below an objective standard of reasonableness based upon prevailing professional norms. Jackson v. State, 973 S.W.2d 954, 956 (Tex. Cr. App. 1998). Second, the deficient performance must have caused prejudice to the defense. Strickland, 466 U.S. at 687. The appellant must demonstrate "a reasonable probability that but for this deficient performance, the outcome of the proceedings would have been different." Jackson, 973 S.W.2d at 956.

The appellant provides no evidence that defense counsel's performance was deficient. The evidence shows that the appellant exhibited a wide variety of physical and mental illnesses throughout her trial and that on numerous occasions, physicians at several different medical facilities attempted to diagnose her condition. However, the appellant appeared to frustrate these attempts, either by feigning certain illnesses or by refusing to cooperate in the treatment altogether. In fact, the first time that doctors tried to conduct an EMG (the very test the appellant claims her attorneys should have requested) on the appellant, she refused to allow them to complete the test. Given the difficulty that medical professionals experienced in their attempts to identify the cause and extent of the appellant's medical problems, the failure of her defense attorneys to request additional medical testing cannot constitute deficient performance. Because defense counsel's performance was not deficient we need not consider whether it prejudiced the defense. Points five and six are overruled.Failure to Disclose Brady Material, Denial of Motion for Continuance,

Denial of Motion to Reopen Suppression Hearing

The appellant claims, in point of error eight, that the State failed to disclose exculpatory information - ie., Brady (4) material - in a timely manner and, in point of error seven, that the trial court erred in granting a continuance of only one day to allow the defense to investigate the information more thoroughly. Point of error thirteen alleges error in the trial court's refusal to reopen the hearing on the appellant's motion to suppress evidence after the defense learned of the evidence. The appellant's argument fails because the defense learned of the information at issue before the trial and because the information itself does not constitute Brady material.

Before the appellant's trial, her son and co-defendant, J.D. O'Malley, was tried and convicted for Musso's murder. During O'Malley's trial, questions were raised concerning the circumstances surrounding and the voluntariness of his confession to police. O'Malley, who suffered from mental deficiencies, claimed that officers from the Galena Park Police Department had "deputized" him in order to gain his cooperation and confession. Several officers, in turn, testified that they knew nothing about the "deputization." As a result of O'Malley's confession, police recovered evidence from a dumpster linking the appellant to the crime.

A former Galena Park police officer, Floyd Sanson, later spoke to the prosecuting attorney and expressed his belief that the officers had committed perjury during O'Malley's trial by claiming they were unaware of the "deputization." Sanson provided this information also to F.B.I. special agents and an investigator with the public integrity division in district attorney's office. Prosecutors did not inform the appellant's defense attorneys of Sanson's allegations, but at some point, defense counsel learned of his claims and hired an investigator to locate Sanson. On the Friday before the trial was scheduled to begin, Sanson met with the appellant's attorneys to discuss the information. In addition to his allegations of perjury, Sanson suggested to the appellant's attorneys that police had recorded O'Malley's interrogation but had withheld or destroyed the audio tapes. Based on this information, the defense moved for a continuance, and the trial court held a one-day hearing on the motion. After hearing testimony from former and current members of the Galena Park Police Department, the court denied the appellant's motion for continuance, finding that the issue of O'Malley's "deputization" was not relevant to the appellant's trial.

These facts clearly indicate that, before trial, the defense knew of Sanson's claims, discovered the specific nature of them, and had the opportunity to investigate the allegations further. Even if the information regarding the circumstances of O'Malley's confession qualified as Brady material, (5) giving the State an affirmative duty to disclose it to the appellant, the State's failure to do so did not harm the appellant because she was already aware of the information.

The appellant's point is without merit for a second reason. Despite the interest that the appellant's defense attorneys may have had in the circumstances surrounding the taking of O'Malley's confession, the information does not constitute Brady material, and the State, therefore, was not obligated to disclose it to the defense. The Due Process Clause of the Fourteenth Amendment requires the prosecution to disclose only evidence that is (1) favorable to the defendant and (2) material either to guilt or punishment. United States v. Bagley, 473 U.S. 667, 674 (1985); Brady v. Maryland, 373 U.S. 83, 87 (1963). Favorable evidence is that which "if disclosed and used effectively, . . . may make the difference between conviction and acquittal." Bagley, 473 U.S. at 676. It includes exculpatory as well as impeachment evidence. Id.; Thomas v. State, 841 S.W.2d 80 (Tex. Cr. App. 1992). "[E]vidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." Bagley, 473 U.S. at 682.

The evidence complained of here was neither favorable to the defense nor material to the outcome in the appellant's trial. First, the evidence had no exculpatory value to the appellant. Assuming that O'Malley's confession was improperly obtained by police, the appellant has no standing to contest the issue. See McMahon v. State, 582 S.W.2d 786 (Tex. Cr. App. 1978), cert. denied sub nom. McCormick v. Texas, 444 U.S. 919 (1979)(holding that the defendant was not entitled to suppression of a co-defendant's confession based on violations of the co-defendant's rights). Therefore, even if the appellant had learned of the evidence directly from the State, the evidence would have been irrelevant to and inadmissible at the appellant's trial. Evidence of violations of O'Malley's rights could not have been "used effectively" by the appellant's defense and would not have "made the difference between conviction and acquittal."

Second, the evidence of O'Malley's illegally obtained confession had no practical impeachment value to the appellant. Although, as the appellant argues, the allegations of perjury related to the credibility of certain officers, evidence of specific instances of their untruthfulness would have been inadmissible under Rule of Evidence 608(b) to impeach the officers' truthfulness in the appellant's trial.

Finally, the evidence at issue was not material to either the appellant's guilt or punishment. As stated above, disclosure of the means by which police obtained O'Malley's confession would not have assisted the appellant in her defense simply because the issue was not relevant to her trial. Because the evidence would have been inadmissible at her trial, it is not reasonably probable that disclosure of the information by the State would have led to a different result in the proceeding.

Evidence that police obtained O'Malley's confession in violation of his rights was not Brady material in the appellant's trial; therefore, the State was under no duty to disclose the evidence to the defense. The trial court did not err in denying the appellant's motion for continuance, as further investigation by the appellant's attorneys would not have materially affected her defense. Points of error seven and eight are overruled.

Likewise, there was no error in the court's refusal to reopen the hearing on the appellant's motion to suppress the evidence obtained from the dumpster (as a result of O'Malley's confession) and the appellant's own confession. The decision to hold a hearing on a motion to suppress evidence remains within the trial court's discretion, and the court may choose to evaluate the merits of the motion during the trial itself. Calloway v. State, 743 S.W.2d 645, 649 (Tex. Cr. App. 1988). Because the appellant had the opportunity to object to the evidence during the trial on the merits and had no standing to object to the fruits of O'Malley's confession, the court did not abuse its discretion by denying the appellant's motion to reopen the hearing on the motion to suppress. Point of error thirteen is overruled.

Ineffective Assistance of Counsel - Failure to Object to Opinion Testimony

Point of error number nine is another ineffective assistance of counsel claim. The appellant argues that she was deprived of effective assistance of counsel by her attorneys' failure to object at the punishment stage to opinion testimony offered by Christina and Scott Hardy, the appellant's daughter and son-in-law. Both witnesses testified that the appellant had physically abused O'Malley throughout his life, and they offered their opinions as to his level of intelligence and mental capabilities. The appellant claims that this testimony was inadmissible under Rule of Evidence 702 because the evidence did not satisfy the test set forth in Kelly v. State, 824 S.W.2d 568 (Tex. Cr. App. 1992), which is used to determine the admissibility of scientific evidence under Rule 702. We disagree.

The testimony of Scott and Christina Hardy regarding O'Malley's mental retardation is not "scientific, technical, or other specialized knowledge," which would require expert qualification under Rule 702. Instead, their testimony qualifies as opinion testimony by lay witnesses, which is governed by Rule 701. Under Rule 701, such testimony is "limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness' testimony …." Rule of Evidence 701. The Hardys testified to their personal knowledge of the abuse the appellant inflicted on her son, and it was reasonable for them, even in the absence of scientific expertise, to link such abuse to the developmental problems O'Malley exhibited. Therefore, Rule 702 and Kelly are not controlling. Defense counsel's failure to object to the testimony as inadmissible expert testimony did not constitute deficient performance under the Strickland test. Point of error nine is overruled.

Ineffective Assistance of Counsel --

Failure to Request Accomplice Witness Instruction

In point of error ten, the appellant again alleges ineffective assistance of counsel, citing her attorneys' failure to request the inclusion of an accomplice-witness instruction in the jury charge. Before the appellant's trial, Hope Ahrens had been tried as a co-defendant in Musso's murder. Her trial resulted in a mistrial, and she remained under indictment when she testified at the appellant's trial. The appellant claims that because Ahrens was an accomplice as a matter of law, the jury should have received an instruction requiring corroboration of Ahrens's testimony pursuant to Article 38.14. According to the appellant, defense counsel's failure to request such an instruction constitutes ineffective assistance of counsel under the Strickland test.

"One who is indicted for the same offense with which the defendant is charged is an accomplice as a matter of law." Ex parte Zepeda, 819 S.W.2d 874, 876 (Tex. Cr. App. 1991)(citing East v. State, 702 S.W.2d 606 (Tex.Cr.App. 1985)). Thus, the appellant was entitled to an instruction that Ahrens's testimony should be considered in jury deliberations only if "corroborated by other evidence tending to connect the defendant with the offense committed." Tex. Crim. Proc. art. 34.14. During the hearing on the appellant's motion for new trial, her defense attorney testified that his failure to request an instruction was not a strategic decision, but merely an oversight on his part. Clearly, defense counsel should have requested the instruction, and his allowing the omission to "slip[] by" him fell below the objective standard of reasonableness required under Strickland.

Having determined that defense counsel's failure to request an accomplice-witness instruction constitutes deficient performance, we must consider whether, but for this failure, the outcome of the trial would have been different. The appellant claims that "[Ahrens's] testimony needed to be put in the most suspect light" and that a proper instruction would have "made [her] testimony more suspect[.]" This argument, however, runs contrary to our recent discussion of the role of the accomplice-witness instruction in Herron v. State, 86 S.W.3d 621 (Tex. Cr. App. 2002):

The instruction does not say that the jury should be skeptical of accomplice witness testimony. Nor does it provide for the jury to give less weight to such testimony than to other evidence. [It] merely informs the jury that it cannot use the accomplice witness testimony unless there is also some non-accomplice evidence connecting the defendant to the offense. Once it is determined that such non-accomplice evidence exists, the purpose of the instruction is fulfilled.... Therefore, non-accomplice evidence can render harmless a failure to submit an accomplice witness instruction by fulfilling the purpose an accomplice witness instruction is designed to serve.

86 S.W.3d at 632.

The question of whether the failure to include the instruction in the jury charge affected the outcome of the trial turns on the amount and nature of the non-accomplice, or corroborating, evidence. Under the egregious harm standard, (6) a defendant is harmed by the omission of an accomplice-witness instruction only if the corroborating evidence is "so unconvincing in fact as to render the State's overall case for conviction clearly and significantly less persuasive." Saunders v. State, 817 S.W.2d 688, 692 (Tex. Cr. App. 1991). In this case, there was significant non-accomplice evidence that tended to connect the appellant to Musso's murder. From the time Musso arrived in Houston to live with the appellant, she exercised significant control over him. Claiming to be Musso's legal guardian, the appellant attempted to have herself named as his representative payee of Musso's social security benefits. She possessed insurance certificates for Musso's accidental death insurance policy and described herself as his "wife-to-be" in seeking designation as a beneficiary on a separate life insurance policy. The appellant was at the scene of Musso's death (Ahrens's apartment) just a few days before the murder, where she informed police that she had instructed O'Malley to make Musso go running that day. After Musso's death, the appellant lied about her knowledge of his whereabouts, claiming that Musso had probably run away with a woman he met at a laundromat.

Finally, and most important, the appellant provided a written confession in which she described her participation in the brutal treatment of Musso. The confession corroborated Ahrens's testimony that Musso had been forced to kneel on a plastic mat and that the appellant had beaten him with a baseball bat and belt. The appellant admitted that she carried Musso's body in the trunk of Bernice Ahrens's car to the site where the body was found and that she drove the car to the dumpster where police later found other incriminating evidence.

We cannot say that, in the absence of Ahrens's testimony, the above evidence is so unconvincing as to render "the State's overall case for conviction clearly and significantly less persuasive." Any failure to request an accomplice-witness instruction was harmless, and there is not a reasonable probability that, but for defense counsel's failure to request an instruction, the trial would have resulted in an acquittal. Point of error ten is overruled.

Denial of Motions to Quash the Indictment

In point of error eleven, the appellant argues that the trial court erred in denying her motions to quash the indictment. She identifies two parts of the indictment that she claims provided inadequate notice to allow her to prepare a defense: (1) the language in the first paragraph that Musso was beaten with an "unknown object" and (2) the description of the remuneration for which she murdered Musso set forth in the second paragraph.

With respect to the use of "unknown object" to describe the murder weapon, the appellant contends that she was entitled to notice of the person or persons to whom the object was unknown. We disagree. As the State noted in its reply brief, because it is the grand jury that issues an indictment, "if the grand jury says the object is unknown, then it is reasonable to infer that it was unknown to the grand jury." The absence of the words "to the grand jury" in the description of the object as "unknown" did not deprive the appellant of adequate notice of the allegations against her.

The second paragraph of the indictment alleged that the appellant murdered Musso "for remuneration and the promise of remuneration, namely, proceeds from an insurance policy on Louis Musso in which [the appellant] is the named beneficiary as well as other assets in which [the appellant] is the named heir …." The appellant argues that this description of remuneration lacked the requisite specificity to allow preparation of her defense based on the absence of the name and and number of the insurance policy or policies and the general language of "other assets."

Under Penal Code section 19.03(a)(3), "a person commits an offense if he [intentionally or knowingly causes the death of an individual] and … the person commits the murder for remuneration or the promise of remuneration[.]" When an indictment "contains all of the constituent elements of an offense under … Penal Code, Sec. 19.03(a)(3)[,] [t]he additional information [regarding remuneration] requested [in a] motion to quash is evidentiary and not required for purposes of notice and plea in bar." May v. State, 618 S.W.2d 333, 341 (Tex. Cr. App. 1981). Such an indictment "sufficiently alleges facts to enable the appellant to prepare his defense and is not subject to a motion to quash." Id. In this case, the indictment alleged the essential element of remuneration, and the appellant was not entitled to greater specificity. Point of error eleven is overruled.

Denial of Motion for Change of Venue

In point of error twelve, the appellant claims that the trial court erred in denying her motion for change of venue. She argues that extensive newspaper, radio, and television coverage of the appellant and her co-defendants' cases prevented the selection of an impartial jury and deprived her of a fair trial.

A trial court may grant a defendant's motion for change of venue upon a finding that "there exists in the county where the prosecution is commenced so great a prejudice against [the defendant] that he cannot obtain a fair and impartial trial." Art. 31.03(a)(1). The court's decision to deny a change of venue will not be reversed absent an abuse of discretion. Bell v. State, 938 S.W.2d 35, 46 (Tex. Cr. App. 1996). In ruling on the motion, the trial court may use the jury selection process to measure the climate of the community. Id. Furthermore, media coverage and high publicity alone are not sufficient to require a change of venue; the defendant must show that the publicity is "pervasive, prejudicial, and inflammatory." Id. Finally, "[w]hen there is conflicting evidence on the issue, a court's decision regarding change of venue will not normally be considered an abuse of discretion." Aranda v. State, 736 S.W.2d 702, 705 (Tex. Cr. App. 1987)(citations omitted).

In support of her motion for change of venue, the appellant offered articles from local newspapers that reported Musso's murder and the subsequent trials of the appellant and her co-defendants. These articles often described the appellant as the "alleged ringleader" or "driving force" behind the murder, but they also included information regarding the acquittal of two of the co-defendants of capital murder and Hope Ahrens's mistrial. Also, a local radio advertising salesperson testified to the subliminal effect that hearing repetitive information may have on prospective jurors.

In response, the State offered evidence concerning the venire in the earlier trials of the appellant's co-defendants. The testimony suggested that those prospective jurors were not unduly affected by the pretrial publicity in the case and indicated that the attorneys in those trials did not have to quash a panel due to a shortage of unbiased venirepersons. A criminal defense attorney testified that the size of the Harris County jury pool allowed for the selection of unbiased jurors in highly publicized cases. Finally, the State offered a prosecutor's testimony that in highly publicized cases, media coverage familiarizes less than ten percent of the venire with the facts of the case, and that even fewer prospective jurors have preconceived opinions as to the defendant's guilt or innocence.

Because the appellant's evidence did not show "pervasive, prejudicial, and inflammatory" publicity, and given the conflicting evidence presented by the State at the venue hearing, the trial court did not abuse its discretion in denying the appellant's motion for change of venue. Point of error twelve is overruled.

Denial of Motion to Suppress Evidence

In point of error fourteen, the appellant claims that the trial court erred in refusing to suppress evidence seized as a result of O'Malley's confession. The appellant argues that because O'Malley's confession was illegally obtained, Article 38.23 requires that any evidence obtained as a result of the confession is inadmissible against the appellant. The appellant's argument misconstrues the scope of Article 38.23. The appellant has no standing to challenge a violation of the rights of a third party under Article 38.23. See Chavez v. State, 9 S.W.3d 817, 819 (Tex. Cr. App. 2000); Fuller v. State, 829 S.W.2d 191, 202 (Tex. Cr. App. 1992). Therefore, any illegality that may have occurred during the taking of O'Malley's confession does not provide a basis for excluding the fruits of that confession at the appellants's trial. Point of error fourteen is overruled.

Admission of Victim's Hearsay Statement

In her fifteenth point of error, the appellant complains of the admission of a statement Musso made to Bruce Byerly several days before Musso was killed. Byerly encountered Musso in his driveway and noticed that Musso had a black eye, blood on his chest, and a cut on his head. When Byerly offered to call the police or an ambulance, Musso declined, insisting that if anyone were called, the appellant would hurt him again. In a pretrial motion, the appellant objected in writing to Byerly's anticipated testimony. The court overruled the objection, and at trial Byerly testified:

A. That's the second conversation I ever had with [Musso] and like you know he's walking down the driveway with no shirt on and like, and I just - I asked him - I says "Can I call the ambulance or a police for you" cause I figured he got beat up.

Q. What did he say?

A. He said, "No. If you call anybody she'll beat me up again."

The appellant contends that the statement is inadmissible hearsay. We disagree. Because Musso's statement to Byerly qualifies as an excited utterance under Rule of Evidence 803(2), it was properly admitted as a hearsay exception. Point of error fifteen is overruled.

Voir Dire of Venire in Competency Hearing

In point of error sixteen, the appellant contends that during voir dire at the competency hearing, the trial court erred in allowing the State to refer to the appellant's trial in progress and to place the burden of proof on the issue of competency on the defense. Prior to the competency hearing, the trial court granted the portion of appellant's motion in limine requesting that the State be instructed not to inform the jury that the appellant faced a capital murder charge or that "the outcome of the trial for the indicted offense would be affected by the jury's verdict in [the] hearing." During voir dire, the State suggested to the jury that a finding of incompetence could "interrupt proceedings" that might then be "totally canceled and thrown away." The appellant's objection to these comments was overruled. The State later made additional statements regarding the potential effect that the jury's finding would have on the trial on the merits, to which the appellant did not object. Nor did the appellant object to the State's suggestion that where a finding of competence interrupts the trial, the defense bears the burden at the hearing.

The preservation of error requires a timely objection, which means a defendant must object each time inadmissible evidence is offered or to request a running objection to the line of testimony. Ethington v. State, 819 S.W.2d 854, 858 (Tex. Cr. App. 1991). A trial court's grant of a motion in limine does not preserve error; a defendant must object when the evidence is offered. Wilkerson v. State, 881 S.W.2d 321, 326 (Tex. Cr. App. 1994). Following the court's ruling on her objection to the first statement, the appellant did not preserve error with respect to the State's additional comments about her trial in progress. Furthermore, "[e]rror is defaulted when the same evidence is presented elsewhere without objection." Nenno v. State, 970 S.W.2d 549, 563 (Tex. Cr. App. 1998). Therefore, the appellant forfeited the right to complain of any error in the trial court's overruling of her objection by her failure to object to the subsequent comments. Likewise, because the appellant did not object when the State told the jury that the defense bore the burden of proof, no error with respect to that comment was preserved for review. Point of error sixteen is overruled.

Exclusion of Testimony at Competency Hearing

In her seventeenth point of error, the appellant claims that the trial court erred in sustaining the State's objection to a question asked of a psychologist during the competency hearing. Jerome Brown, a psychologist who had evaluated the appellant, discussed at length the similarities and differences between malingering and a factitious disorder. He testified that, in his opinion, the appellant was faking mental illness. When pressed by defense counsel to provide a psychiatric diagnosis of the appellant, Brown emphasized that whether the appellant was malingering - or had a factitious disorder - and whether she was competent to stand trial were "two very different questions." The defense attorney then asked Brown whether he believed that the appellant had a factitious disorder. The State objected to the relevance of the question, and the court sustained the objection. Shortly thereafter, defense counsel asked Brown whether he had "rule[d] out" a factitious disorder in his diagnosis of the appellant. This question, in effect, sought the same information as the one to which the State had objected. Brown said he had not ruled it out and that the appellant was "exhibiting some symptoms that are possibly factitious."

At the conclusion of Brown's testimony, the defense perfected a bill of exception concerning the testimony that was excluded in the presence of the jury. When asked for his diagnosis of the appellant, Brown stated that he would not "rule out factitious disorder" and that the appellant's belief that she was going blind was "possibly a factitious symptom." This testimony was essentially identical to the testimony that occurred in the jury's presence. While the court did not allow the defense to ask the specific question, "Do you believe that [the appellant] has a factitious disorder?" before the jury, the substance of the testimony from the bill of exception - the evidence that would have been produced but for the sustained objection - was subsequently admitted. When a defendant offers and the court admits the same testimony as that objected to, the defendant is not in position to complain on appeal. See Stoker v. State, 488 S.W.2d 1, 12 (Tex. Cr. App. 1989). Point of error seventeen is overruled.

Admission of Testimony Referring to Co-Defendant's Confession

In point of error eighteen, the appellant argues that the trial court erred in denying her motion for a mistrial after a State's witness referred to her co-defendant's confession. Police Chief Robert Pruett was asked when the police "booked" the appellant for Musso's murder, and he responded, "After her son [O'Malley] confessed." The trial court sustained the defense attorney's objection, instructed the jury to disregard Pruett's answer, but denied the appellant's motion for a mistrial. The appellant cites Bruton v. United States, 391 U.S. 123 (1968), for the proposition that this violated her right to confront and cross-examine adverse witnesses. In Bruton, the Supreme Court held that a defendant is deprived of his rights under the Confrontation Clause, despite a trial court's limiting instruction to the jury, when the State introduces the confession of a non-testifying co-defendant. In this case, however, Bruton is not on point. Here, the State did not attempt to introduce O'Malley's confession itself into evidence or to use it for any other purpose. The only mention of the confession was Pruett's indication of its existence; no prejudicial details of the confession were revealed to the jury.

Furthermore, an instruction to disregard prejudicial testimony cures any resulting harm unless "the evidence is clearly calculated to inflame the minds of the jury and is of such a character as to suggest the impossibility of withdrawing the impression produced on their minds." Ladd v. State, 3 S.W.3d 547, 567 (Tex. Cr. App. 1999)(quoting Gardner v. State, 730 S.W.2d 675, 696 (Tex. Cr. App. 1987)). Even if the general reference to O'Malley's confession harmed the appellant, the testimony was not intended to inflame the jury, and its character was not of the kind that would leave an indelible impression in their minds. The court's instruction to disregard was sufficient to cure the harm, if any, and the court properly denied the motion for a mistrial. Point of error eighteen is overruled.

Submission of Theory in Jury Charge - Cause of Death

In point of error nineteen, the appellant claims error in the portion of the charge that allowed her conviction as a party to Musso's murder by someone other than O'Malley using his or her feet as a deadly weapon. She argues that there was no evidence that anyone other than O'Malley kicked Musso or that Musso died as a result of being kicked. Therefore, the appellant argues, the inclusion of "feet" within the description of deadly weapon used by the appellant or any co-defendant other than O'Malley was error.

The evidence was inconclusive as to the particular object and specific individual who inflicted the fatal wound. The medical examiner testified that one of the two large lacerations on Musso's scalp was attributable to what was probably the fatal blow. , While the medical examiner was unable to determine the exact object that was used to inflict the wound or the related skull fracture, he testified that the wounds could have been caused by a "big boot." Hope Ahrens testified that O'Malley, while wearing combat boots, had kicked Musso. In her statement to police, the appellant claimed that she had seen Craig Ahrens kick and body-slam Musso. The appellant stated that Musso had suffered injuries as a result of being hit with bats and belts and being "kicked, slapped, pushed against the wall, and pushed against the bathtub," yet she did not identify which individuals kicked Musso. Despite the lack of direct evidence of who caused Musso's death or the weapon used, the jury reasonably could have found from the circumstances that any of the appellant's co-defendants killed Musso by kicking him with his or her foot. Point of error nineteen is overruled.

Submission of Theory in Jury Charge - Remuneration

The appellant's twentieth and twenty-first points of error claim that the trial court erred in overruling the appellant's objection to the portion of the charge relating to remuneration. The appellant claims the court erroneously included, as part of the description of the remuneration for which the appellant and her co-defendants murdered Musso, Musso's life insurance policies designating the appellant as beneficiary because, in fact, no such designation was made. The State argues that the actual existence of a policy naming the appellant as beneficiary is not determinative of the issue of whether she murdered Musso for remuneration. Instead, the appellant's expectation of receiving a financial benefit from the killing controls the inquiry. We agree with the State's position.

Murder is elevated to a capital offense when committed for remuneration or the promise of remuneration. See Tex. Penal Code sec. 19.03(a)(3). In determining whether the aggravating factor is present, "[t]he focus is on the actor's intent or state of mind: Did the actor kill in the expectation of receiving some benefit or compensation, e.g., life insurance proceeds[.]" Beets v. State, 767 S.W.2d 711, 735 (Tex. Cr. App. 1988)(emphasis added). "The element [of remuneration is] fulfilled by the appellant's expectation of receiving money as a result of the killing." Id. (emphasis added). The evidence showed the following: (1) Certificates of insurance were found at the appellant's home, including one for an accidental death policy that would provide $65,000 upon Musso's death from a violent crime; (2) the appellant had drafted an "amendment" to Musso's will that stated that she was to receive "all of the insurance policies that [Musso had] and all of the money that is to be in the policies"; and (3) an application for a life insurance policy on Musso, which ultimately was not issued, named the appellant, Musso's "wife to be," as the beneficiary. Based on this evidence, the jury reasonably could have inferred that the appellant believed that she was a beneficiary of the policies and, thus, expected to benefit financially from killing Musso. The court did not err in including the life insurance policies among the types of remuneration in the charge. Points of error twenty and twenty-one are overruled.

Submission of Theory in Jury Charge - Guilt as a Party

In point of error twenty-two, the appellant claims error in the court's charge because it allowed the jury to convict the appellant of capital murder as a party to the conduct of Hope Ahrens and Bernice Ahrens. The appellant contends that a charge on the law of parties was not authorized because there is no evidence that either Hope Ahrens or Bernice Ahrens killed Musso.

In accordance with Penal Code sections 7.01(a) and 7.02(a)(2), (7) the charge authorized the appellant's conviction if the jury found that any one or all of her co-defendants - including Hope and Bernice Ahrens - murdered Musso and that the appellant, "with the intent to promote or assist the commission of the offense, . . . solicited, encouraged, directed, aided or attempted to aid" any or all of the co-defendants in the murder. The appellant, in her written statement, claimed that both Hope and Bernice Ahrens had beaten Musso and that Musso's body was already in the trunk of Bernice's car when the appellant arrived at the Ahrens' apartment. The appellant also admitted her participation in the beatings and her role in disposing of the body and other incriminating evidence. Other evidence showed that six individuals - including the appellant, Hope Ahrens, and Bernice Ahrens - had participated in the brutal treatment of Musso. Although inconclusive as to which person actually inflicted the fatal wound, the evidence was sufficient to support a jury's finding that the conduct of either Hope or Bernice Ahrens, or both, caused Musso's death. Furthermore, the evidence also demonstrated the appellant's role in assisting, directing, and aiding in the commission of the crime. Therefore, the charge properly permitted the jury to convict the appellant as a party to the conduct of Hope and Bernice Ahrens. Point of error twenty-two is overruled.

Burden of Proof on Mitigation Issue

In point of error twenty-five, the appellant claims that the trial court erred in not assigning to the State the burden of proof on the mitigation issue at the punishment stage. The appellant argues that in light of the Supreme Court's holding in Aprendi v. New Jersey, 530 U.S. 466 (2000), the imposition of a death sentence requires that the State prove the absence of mitigating circumstances beyond a reasonable doubt. We disagree.

We have held that neither party bears the burden of proof at punishment on the mitigation special issue. Prystash v. State, 3 S.W.3d 522, 535 (Tex. Cr. App. 1999); Lawton v. State, 913 S.W.2d 542, 557 (Tex. Cr. App. 1995). The holding in Aprendi does not affect our prior decisions or our determination of the appellant's point. Where the finding of a fact (other than a prior conviction) increases the authorized punishment for a crime, the State must prove and a jury must find that fact beyond a reasonable doubt. Ring v. Arizona, 122 S.Ct. 2428, 2439 (2002); Aprendi, 530 U.S. at 476 (emphasis added). Under Article 37.071, there is no authorized increase in punishment contingent on the jury's finding on the mitigation special issue. See Ring, 122 S.Ct. at 2439. A jury will answer the mitigation special issue only "if [it] returns an affirmative finding to each issue submitted under Subsection (b) [future dangerousness and guilt as a party]." Art. 37.071 sec. (2)(e)(1). In other words, a jury's finding on mitigation occurs only after the State has proven the elements of capital murder, at the guilt stage, and the aggravating circumstances - evidence of the defendant's future dangerousness - beyond a reasonable doubt. Prystash, 3 S.W.3d at 535. By the time the jury reaches the mitigation issue, the State has already demonstrated the defendant's eligibility for a death sentence; a negative answer on mitigation cannot increase his authorized punishment. The statute mandates only a reduction in punishment to a life sentence upon an affirmative finding of mitigation. See Art. 37.071 sec. (2)(g). Therefore, Aprendi is not applicable to the appellant's point of error. The trial court did not err in not assigning the burden on the mitigation issue to the State. Point of error twenty-five is overruled.

Having found no reversible error, we affirm the appellant's conviction.

En banc.

Delivered January 15, 2003.

Do not publish.

1. Unless otherwise indicated all future references to Articles refer to the Code of Criminal Procedure.

2. These factors include:

1) the circumstances of the capital offense, including the defendant's state of mind and whether he was working alone or in concert with other parties;

2) the calculated nature of the defendant's actions;

3) the forethought and deliberateness exhibited by the crime's execution;

4) the existence of a prior criminal record and the severity of the prior offenses;

5) the defendant's age and personal circumstances at the time of the commission of the offense;

6) whether the defendant was acting under duress or intoxication or under the domination of another at the time of the commission of the offense;

7) the lack of psychiatric evidence concerning future dangerousness;

8) any relevant character evidence.

Keeton, 724 S.W.2d at 61.

3. In Williams, we held that this error is constitutional in nature and therefore requires reversal "unless the court determines beyond a reasonable doubt that the error did not contribute to the conviction or punishment." 958 S.W.2d at 194 n. 9.

4. Brady v. Maryland, 373 U.S. 83 (1963).

5. As we explain below, the information does not meet the requirements under Brady so as to require disclosure by the State.

6. See Almanza v. State, 686 S.W.2d 157, 171 (Tex. Cr. App. 1985)(where the defendant has failed to preserve error in the jury charge, reversal is required only upon a showing of "egregious" harm).

7. The statute provides:

A person is criminally responsible as a party to an offense if the offense is committed by his own conduct, by the conduct of another for which he is criminally responsible, or by both. Tex. Penal Code § 7.01(a).

A person is criminally responsible for an offense committed by the conduct of another if, acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense[.] Id. § 7.02(a)(2).