IN THE COURT OF CRIMINAL APPEALS
BILLY GALLOWAY, Appellant
THE STATE OF TEXAS
ON DIRECT APPEAL
FROM HUNT COUNTY
In March 2000, a Hunt County jury convicted appellant of capital murder. Tex. Penal Code Ann. § 19.03(a). 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 appellant to death. Art. 37.071, § 2(g). (1) Direct appeal to this Court is automatic. Art. 37.071, § 2(h). Appellant raises ten points of error. We affirm.
During the late summer of 1998, appellant, his girlfriend, Deannee Bayless, appellant's friend Kevin Varga, and Varga's girlfriend, Venus Joy Anderson, were all on probation or parole with the South Dakota Department of Corrections. On September 1, 1998, the four gathered their money and belongings, loaded up appellant's automobile, and left South Dakota.
A few days later, the group arrived in Wichita, Kansas, and checked into a hotel. That evening, after discussing a plan to lure someone back to the hotel to blackmail or rob them, appellant, Anderson, and Bayless went to a bar. (2) At the bar, the three met David McCoy, and Bayless talked him into returning to the hotel with them. Once there, the men killed McCoy, wrapped his body in a blanket, and loaded it into appellant's vehicle. Driving both appellant's vehicle and McCoy's car, the group headed out of Wichita. After appellant's automobile stopped running, they abandoned it in a parking lot with McCoy's body still inside.
The group arrived in Greenville, Hunt County, Texas, September 7, 1998. Appellant and Varga wanted more money, so they agreed to engage in the same pickup scheme that they had used in Kansas. Shortly thereafter, Bayless and Anderson met David Logie at the Holiday Inn and convinced him to go eat with them. With Bayless driving Logie's rental car, the three left the Holiday Inn parking lot. Appellant and Varga surreptitiously followed them in McCoy's car. Shortly thereafter, Bayless pulled off the road near a building. Bayless got out of the car with Logie and told Anderson that she and Logie were going to have sex on the hood of his car. About this time, appellant appeared and began cursing and hitting Logie with his fist, knocking him down. Varga repeatedly struck Logie with a log, killing him. Bayless took Logie's wallet and credit cards. The group burned McCoy's vehicle and left Greenville in Logie's rental car.
The group traveled to San Antonio, where Bayless and Anderson used the credit cards Bayless had stolen from Logie at a local mall. As they were leaving the mall parking lot, the women noticed a police car behind them, and they pulled into a nearby Wal-Mart parking lot. The officer approached and separated the two women. After Anderson confessed to the murders, officers arrested Bayless and Anderson. Appellant and Varga were arrested later that night. Based on the information Anderson gave in her confession, the authorities located Logie's body near Greenville and notified Kansas authorities about McCoy's murder.
Appellant's fifth point of error asserts that the evidence was legally and factually insufficient to show that he participated in any of the alleged conduct in Kansas and Texas or that he was guilty as a party to the offense of capital murder, and that the jury finding was irrational because it could not have found the essential elements of the crime beyond a reasonable doubt. Specifically, he asserts that: 1) the evidence is legally and factually insufficient to show that he participated in any of the alleged conduct in Kansas and Texas; 2) the evidence is insufficient to show that he acted as a party to the offense; 3) the pleading created a fatal variance of proof in that the indictment alleged no principal actor and, therefore, the state could not show that a principal formed the intent to kill or that appellant joined in on that intent; and 4) the evidence is insufficient because the accomplice-witness testimony is not sufficiently corroborated. This single point encompasses numerous theories of law, and is therefore multifarious. Tex. R. App. P. 38.1(h); see also Wood v. State, 18 S.W.3d 642, 649 n.6 (Tex. Crim. App. 2000). However, because of the gravity of the penalty imposed in this case, we will address the legal and factual sufficiency of the evidence and the accomplice-witness corroboration rule.
Article 38.14 states, "A conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed; and the corroboration is not sufficient if it merely shows the commission of the offense." In conducting a sufficiency review under the accomplice-witness rule, the reviewing court must eliminate the accomplice testimony from consideration and then examine the remaining evidence to determine whether there is sufficient evidence that "tends to connect" the accused with the commission of the crime. Solomon v. State, 49 S.W.3d 356, 361 (Tex. Crim. App. 2001). We have held that "a defendant's presence at the scene and participation in the underlying offense [is] sufficient to connect him to the capital murder for accomplice-witness rule purposes." Id. at 362. We have also held that evidence that the defendant "was in the company of the accomplice at or near the time or place of the offense is proper corroborating evidence." McDuff v. State, 939 S.W.2d 607, 613 (Tex. Crim. App.), cert. denied, 522 U.S. 844 (1997). If sufficient evidence exists which tends to connect appellant with the commission of the crime, the Court then reviews the legal sufficiency of the evidence by looking at all of the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (1979).
Non-accomplice evidence in the instant case showed that authorities found appellant's SUV with David McCoy's body in the back of it in a parking lot near the motel in Kansas where McCoy had been murdered. Hunt County authorities found David Logie's body near McCoy's burned-out car. The police in San Antonio recovered Logie's rental car from two of appellant's co-defendants. They also found appellant's belongings in the trunk of Logie's car and in the same hotel where the other three defendants were staying. At the time of his arrest, Varga was wearing shoes that had on them blood from both McCoy and Logie. At the time of his arrest, appellant was wearing a new pair of shoes which matched a pair purchased in San Antonio with Logie's credit card. The group paid for the San Antonio hotel room where appellant and his co-defendants stayed with Logie's credit card. All of this non-accomplice evidence tended to connect appellant to this offense. See Trevino v. State, 991 S.W.2d 849, 852 (Tex. Crim. App. 1999)(holding presence of defendant's blood on victim's panties and defendant's pant fibers on victim's clothes tended to connect defendant to crime); Gosch v. State, 829 S.W.2d 775, 782 (Tex. Crim. App. 1991), cert. denied, 509 U.S. 922 (1993)(holding non-accomplice evidence sufficient to "tend to connect" defendant where, among other evidence, defendant was arrested after police found clothes in his possession which were splattered with blood of same type as that of victim). There is sufficient non-accomplice evidence to connect appellant with the commission of the offense and to corroborate the accomplice testimony. Viewing all of the evidence in the light most favorable to the verdict, we hold that the evidence is legally sufficient to support the jury's verdict of guilty.
In reviewing factual sufficiency, we view all of the evidence, not in the "light most favorable to the verdict" perspective, but rather in a neutral light favoring neither side. Vasquez v. State, 67 S.W.3d 229, 236 (Tex. Crim. App. 2002); Wesbrook v. State, 29 S.W.3d 103, 111-12 (Tex. Crim. App. 2000), cert. denied, 532 U.S. 944 (2001); Kutzner v. State, 994 S.W.2d 180, 184 (Tex. Crim. App. 1999). A reviewing court that conducts a factual sufficiency review of the elements of a criminal offense "asks whether a neutral review of all of the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof." Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000).
After reviewing the evidence in the requisite neutral light, we find that evidence that tends to prove appellant's guilt is strong, and we have found no record evidence that tends to disprove his guilt; we cannot conclude that the guilty verdict is clearly wrong or manifestly unjust. Therefore, we hold that the evidence is factually sufficient. Ladd v. State, 3 S.W.3d 547, 557 (Tex. Crim. App. 1999), cert. denied, 529 U.S. 1070 (2000). After finding the evidence legally and factually sufficient to sustain appellant's conviction, we overrule point of error five.
In his sixth point of error, appellant complains that the evidence is legally and factually insufficient "to show that Appellant knew that co-actor Kevin Varga was in possession of a deadly weapon at the time of the commission of the offense, such that Appellant could not have known or anticipated that a life would be taken." Non-accomplice proof or corroboration of accomplice testimony regarding a specific fact is not required under the law as long as sufficient evidence is presented to prove each element of a crime beyond a reasonable doubt. See point of error five, supra, and Jackson v. Virginia, 443 U.S. 307 (1979). Point of error six is overruled.
Appellant alleges in his first point of error that an attorney who was not a proper representative of the state presented the indictment to the grand jury. Specifically, he asserts that the attorney purporting to represent the state in the grand jury worked for the District Attorney elected in the 196th Judicial District and, as such, he was not authorized to appear before the grand jury of the 354th Judicial District which indicted appellant. Appellant asserts that because the prosecutor was not entitled to appear before a grand jury in the 354th Judicial District, the indictment is therefore void. See Tex. Gov't Code §§ 24.375 ("The 196th Judicial District is composed of Hunt County"), 24.500 ("The 354th Judicial District is composed of Hunt and Rains counties), and 43.164 ("The voters of the 196th Judicial District elect a district attorney").
The grand jury, not the district attorney, is ultimately responsible for the return of a "true bill" or a "no-bill" in a case. State ex rel. Holmes v. Salinas, 784 S.W.2d 421, 426 (Tex. Crim. App. 1990). Further, the grand jury has the authority to review matters that have not been presented by the state but are known about by some member of the panel. Id. That an improper person may have questioned witnesses in front of the grand jury in violation of Articles 20.03 and 20.04 did not render the subsequent indictment void. Rather, this issue is subject to a harm analysis. See Sanders v. State, 978 S.W.2d 597, 599-600 (Tex. App.- Tyler 1997, pet. ref'd) and Smith v. State, 36 S.W.3d 134, 136-38 (Tex. App.-Houston [14th Dist.] 2000, pet. ref'd); see also Cain v. State, 947 S.W.2d 262, 264 (Tex. Crim. App. 1997)(holding that, except for certain federal constitutional errors labeled by the United States Supreme Court as "structural," no error is categorically immune to a harmless error analysis). Because of the independent nature of the grand jury, the record does not support a finding of harm in this case, even assuming that error occurred. The grand jury's subsequent presentment of the indictment to the trial court invested that court with jurisdiction of this cause. Tex. Const. art. V, § 12(b); see also Art. 20.01, et sec. Appellant's first point of error is overruled. (3)
In his second point of error, appellant argues that the second paragraph of the indictment against him fails to allege an offense and, in fact, alleges a legal impossibility. Thus, he submits that the trial court erred in failing to quash the second paragraph.
The second paragraph of appellant's indictment reads as follows:
On or about the 8th day of September 1998, in the County of Hunt and the State of Texas, [appellant], acting together with Kevin Scott Varga, Deannee Ann Bayless and Venus Joy Anderson, did then and there intentionally and knowingly cause the death of an individual, David Lawrence Logie, by striking and beating the said David Lawrence Logie about the head with a hammer, and/or by striking and beating the said David Lawrence Logie about the head with a tree limb or tree limbs, and/or by striking and beating the said David Lawrence Logie about the head and neck with fists and feet, and the said [appellant], acting together with Kevin Scott Varga, Deannee Ann Bayless and Venus Joy Anderson, did murder another person during a different criminal transaction but pursuant to the same scheme or course of conduct in that on or about the 6th day of September, 1998, in Sedgwick [C]ounty, State of Kansas, [appellant], acting together with Kevin Scott Varga, Deannee Ann Bayless and Venus Joy Anderson, did intentionally and knowingly cause the death of an individual, David L. McCoy, by striking and beating the said David L. McCoy about the head with a metal rod or pole, and/or by striking and beating the said David L. McCoy about the head and neck with fists and feet; against the peace and dignity of the State.
In his point of error, appellant claims that the language of this paragraph is "repugnant on [its] face."
Without citing any authority in support of his proposition, appellant asserts that it is both legally and factually impossible for the defendants to be convicted of committing two murders during the same scheme or course of conduct when one of those murders was committed two days earlier in another state. See Tex. Penal Code § 19.03(a)(7)(B). Appellant insists that "[i]f the state is to allege the same scheme or course of conduct transaction, it must first allege the first predicate murder and [then] allege the second subsequent murder." He also contends that in order to allege that two murders were committed during the same scheme or course of conduct, the state must allege the murders as they chronologically occurred, but that in the instant case the state was barred from doing so because the first murder was committed outside the state of Texas, i.e. in Kansas. Appellant asserts that, because evidence of a Kansas murder was presented during guilt/innocence, he was "irreparably prejudiced" and "[t]he indictment should be quashed and the case reversed and remanded to the trial court."
Nothing in the statute requires that the murders occur in a certain time frame or in a geographically limited area. See Corwin v. State, 870 S.W.2d 23, 28 (Tex. Crim. App. 1993), cert. denied, 513 U.S. 826 (1994). Corwin involved the murders, during the same scheme or course of conduct, of three women in three different counties over the course of nine months. We held that the evidence was sufficient for a rational jury to find that Corwin committed the murders pursuant to the same course of conduct even though they occurred over a period of several months and in various geographic locations. Id. at 28-29. We do not agree that the second paragraph in appellant's indictment fails to allege an offense or alleges a legal impossibility as asserted by appellant's second point. Point of error two is overruled.
In his third point of error, appellant asserts that the trial court had no jurisdiction to consider paragraph two of the indictment, which should have been quashed, because the second murder alleged in the paragraph occurred not only outside of the borders of the county but indeed outside of the borders of the state; and that the trial court should have therefore quashed the indictment. Appellant is mistaken in his interpretation of the paragraph.
Texas Penal Code section 19.03 defines the offense of capital murder as murder plus some aggravating element. See, e.g., Patrick v. State, 906 S.W.2d 481, 491 (Tex. Crim. App. 1995), cert. denied, 517 U.S. 1106 (1996); Hughes v. State, 897 S.W.2d 285, 295 (Tex. Crim. App. 1994), cert. denied, 514 U.S. 1112 (1995). Section 19.03(a)(7)(B) defines one form of capital murder as the murder of one person plus the additional murder of a second person, which murder was committed during a different criminal transaction but pursuant to the same scheme or course of conduct as the charged murder. Appellant is charged under this provision of the statute with the murder of David Logie (committed in Hunt County, Texas) aggravated by the additional murder of David McCoy (committed outside of Texas, but pursuant to the same scheme or course of conduct as Logie's murder). Because the primary murder occurred in Hunt County, Texas, this state has the authority to prosecute the offense even though some of the elements of the aggravating offense occurred outside the state's boundaries. The statute explicitly authorizes prosecution for murder in the county in which the body was found. See Art. 13.05. (4) Logie's body was found in Hunt County. Appellant's third point of error is overruled.
In his fourth point of error, appellant argues that his prosecution for capital murder and exposure to a potential death sentence was based solely upon his gender, thus denying him Equal Protection under the Fourteenth Amendment to the United States Constitution. Appellant notes that, while the state tried, convicted, and sentenced him to death for his involvement in the instant offense, the prosecution gave both of the women involved plea bargains for a lesser charge and punishment. (5) He asserts that this evidence establishes gender discrimination in the exercise of prosecutorial discretion.
The United States Supreme Court has stated that "the decision to prosecute may not be 'deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification . . ..'" Wayte v. United States, 470 U.S. 598, 608 (1985)(quoting Oyler v. Boles, 368 U.S. 448, 456 (1962)). However, an appellant who raises the issue of equal protection in this context has the burden of proving the existence of purposeful discrimination by providing "exceptionally clear evidence" that the state decided to prosecute for an improper reason. Green v. State, 934 S.W.2d 92, 102-03 (Tex. Crim. App. 1996)(quoting County v. State, 812 S.W.2d 303, 308 (Tex. Crim. App. 1989)). Appellant has not provided exceptionally clear evidence for his claim, nor does the record support it. (6) The evidence presented throughout the instant case showed that the four persons involved in the charged offense acted with varying degrees of involvement. The differences in charging and punishment indicate that the prosecutor weighed each individual's culpability as well as the state's ability to prove each case when making the decision about whom to prosecute and for what. Appellant has not shown discriminatory intent on the part of the prosecutor. Appellant's fourth point of error is overruled.
Appellant submits in his seventh point of error that the trial court erred in failing to strike victim-impact testimony from the jury's consideration and in failing to grant a mistrial. Specifically, appellant asserts that the state submitted victim-impact testimony in rebuttal of appellant's mitigation evidence, but that appellant had not placed any mitigation before the jury, nor had he indicated his intent to do so. Thus, appellant contends, the court should have excluded the victim-impact testimony as irrelevant.
Article 37.071, section 2(a)(1), states that "evidence may be presented by the state and the defendant or the defendant's counsel as to any matter that the court deems relevant to sentence . . .." (Emphasis added.) In Mosley v. State, this Court held that "[b]oth victim impact and victim character evidence are admissible, in the context of the mitigation special issue, to show the uniqueness of the victim, the harm caused by the defendant, and as rebuttal to the defendant's mitigating evidence." Mosley v. State, 983 S.W.2d 249, 262 (Tex. Crim. App. 1998), cert. denied, 526 U.S. 1070 (1999). (7) The Mosley Court noted that, in Powell v. State, 897 S.W.2d 307 (Tex. Crim. App. 1994)(plurality), the Court had held that the former issue of deliberateness could not be waived, even at the defendant's request, because a jury finding that the state had proved the issue of deliberateness beyond a reasonable doubt was required before a death sentence could be assessed. Id at 316. (Clinton, J., concurring). In Mosley, the Court distinguished mitigation from deliberateness; under Penry v. State, 903 S.W.2d 715, 766 (Tex. Crim.App.), cert. denied, 516 U.S. 977 (1995), the mitigation issue carries no burden of proof for the state. Id. at 766. The Court also indicated that a defendant could render the state's victim-impact and character evidence irrelevant and therefore inadmissible by affirmatively and expressly waiving the submission of the mitigation issue. Mosley, 983 S.W.2d at 263-64. (8) The appellant in Mosley, however, had not waived the mitigation issue, and the question was not before the Court.
In Tong v. State, 25 S.W.3d 707, 711-12 (Tex. Crim. App. 2000), cert. denied, 532 U.S. 1053 (2001), we explicitly stated that we had not yet decided whether a capital defendant can waive the mitigation special issue and that Mosley's holding involved the admissibility of victim-impact evidence, "not whether the special issue can be waived." Our opinion in Ripkowski v. State, 61 S.W.3d 378, 391 n.48 (Tex. Crim. App. 2001), noted that, while Mosley had suggested that a defendant may have a right to insist upon waiving the submission of mitigation special issue, "[t]hat question would be ripe only in a case in which the trial court refused [such] a requested waiver."
We find nothing in the record to support a finding that appellant affirmatively waived submission of the mitigation issue. (9) The trial court was therefore within its discretion in determining that the victim-impact testimony was relevant to the question of mitigation. Point of error seven is overruled.
Appellant argues in his eighth point of error that the prosecutor improperly played a videotape during his final argument at punishment. (10) Toward the end of his closing argument, the prosecutor began to play a portion of the video for the jury. Appellant objected that, because the prosecution did not play the tape for the jury when the trial court admitted it, the jury should review it only on their own, should they want to see it. Appellant asserts that the use of the videotape in closing arguments "was inflammatory, prejudicial, and reversible error" because the tape had never been affirmatively linked to appellant and the state failed to otherwise show that he subscribed to the tenets or beliefs represented in the tape, nor that it pertained to any matters relevant to the murder. Appellant insists that the trial court "erred by not stopping the improper argument and by refusing to grant a limiting instruction concerning the tape." He also seems to suggest that the videotape should not have even been allowed into evidence over his objection.
Among the proper subjects of jury argument are: (1) summation of the evidence presented at trial, (2) reasonable deduction drawn from that evidence, (3) answer to the opposing counsel's argument, or (4) a plea for law enforcement. See, e.g., Jackson v. State, 17 S.W.3d 664, 673 (Tex. Crim. App. 2000). Playing a videotape that was admitted at trial with no restrictions is, in effect, a summation of that evidence; the prosecutor did not engage in improper argument. In addition, the record does not reflect that appellant requested any limiting instruction when he objected to the tape being used in the jury argument. The trial court did not err in not granting "a limiting instruction concerning the tape" when appellant failed to request such.
Appellant's complaint about the trial court admitting the videotape into evidence over his objection is multifarious and inadequately briefed. See, e.g., Dunn, 951 S.W.2d at 480. However, again because of the gravity of the punishment imposed, we will address the merits of this complaint.
As stated previously, Article 37.071, section 2(a)(1), states that in the punishment phase of a capital murder trial "evidence may be presented by the state and the defendant or the defendant's counsel as to any matter that the court deems relevant to sentence . . .." We review a trial court's decision to admit or exclude evidence under an abuse of discretion standard, and will not reverse such a ruling which was within the zone of reasonable disagreement. Green v. State, 934 S.W.2d 92, 101-02 (Tex. Crim. App. 1996), cert. denied, 520 U.S. 1200 (1997).
The record reflects that the videotape in question was found by police in a nylon zipper bag with other items, including prescription pills "that had [appellant's] name on it." We conclude that there was no abuse of discretion in admitting the videotape into evidence over appellant's objection. Accordingly, point of error eight is overruled.
In his ninth point of error, appellant complains that the imposition of the death penalty violated the Eighth Amendment's prohibition of cruel and unusual punishment in that the anti-parties special issue operated unconstitutionally as applied to him. Specifically, appellant alleges that the state did not show that he actually caused the death of the deceased, intended to kill the deceased, or anticipated that a life would be taken, and thus he was less morally blameworthy than his co-defendants. (11) See Art. 37.071, § 2(b)(2).
As he did in point of error five, supra, appellant asserts that, because the accomplice-witness testimony regarding his actions during the instant offense was not sufficiently corroborated, the jury could not have reasonably found that appellant himself caused, intended, or anticipated the death of the deceased. However, as we held in point of error five, the evidence was sufficiently corroborated. Thus, the jury appropriately could use all of the evidence presented, including the accomplice-witness testimony, to determine whether appellant himself intended the death of the victim.
Because the jury could look only at appellant's participation in and culpability for the offense, the requirements of Enmund v. Florida were met, and the statute did not cause appellant to suffer cruel and unusual punishment under the Eighth Amendment. Enmund v. Florida, 458 U.S. 782, 797 (1982)(holding that the Eighth Amendment does not permit imposition of the death penalty "on one ... 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.") Point of error nine is overruled.
Appellant asserts in his tenth point of error that Texas Penal Code, §19.03(a)(7)(B), operated unconstitutionally as to him because he did not "ha[ve] notice prior to being indicted in Texas that his conduct in Kansas could make him liable for prosecution in Texas for a subsequent murder committed two days after the Kansas murder . . .." Nothing in state or federal law requires that a person have such specific notice before being indicted for a crime. If a person is formally charged with a crime, the indictment is the instrument through which he is given notice of the charge against him. The indictment must be sufficiently specific to allow him to meaningfully defend himself. See generally, Tex. Code Crim. Pro. Chapter 21; see also, e.g., Gollihar v. State, 46 S.W.3d 243 (Tex. Crim. App. 2001).
The state charged appellant with committing murder in Hunt County, Texas. Further, the indictment against him gave him notice of every element of that offense which the state was required to prove. That the aggravating element which raised the murder to a capital murder was committed partly or entirely outside of Texas does not render the indictment, or the penal provision on which it was based, unconstitutional, nor does its use violate due process. See arts. 13.01 and 13.05. Point of error ten is overruled.
We affirm the judgment of the trial court.
Delivered: January 29, 2003
Do Not Publish
1. Unless otherwise indicated all future references to Articles refer to the Code of Criminal Procedure.
2. 3. 4.
1. Unless otherwise indicated all future references to Articles refer to the Code of Criminal Procedure.
2.According to Anderson, the group discussed "rolling" someone. When she asked what this meant, her cohorts explained that it entailed enticing an older man with money back to a hotel room and then blackmailing him after the others caught him in a compromising position.
3.Appellant further asserts in this same point of error that because the attorney purporting to represent the state worked for the District Attorney elected in the 196th Judicial District, he had no authority to prosecute the case in the 354th Judicial District Court. Because the issue of a person's authority to prosecute a case encompasses a different area of the law than the validity of an indictment and who may appear before a grand jury, we hold that the remainder of his point is multifarious, and we will not address it. See Tex. R. App. P. 38.1; see also Dunn v. State, 951 S.W.2d 478, 480 (Tex. Crim. App. 1997).
4.Article 13.05 provides that:
The offense of criminal homicide committed wholly or in part outside this [s]tate, under
circumstances that give this [s]tate jurisdiction to prosecute the offender, may be prosecuted in the
county where the injury was inflicted, or in the county where the offender was located when he
inflicted the injury, or in the county where the victim died or the body was found. (Emphasis
5. 6. 7. 8. 9. 10. 11.
5.The state also tried Varga, the other male involved, for capital murder. The jury convicted Varga and, as required by the jury's findings on the special issues, the court sentenced him to death.
6.In his brief, appellant directs us to a volume and page numbers (specifically "CRR-Vol. 32, pages 54-59") where his motion underlying this point of error was argued. A review of the cited section does not show a hearing on such a motion, nor could we find a record of such a hearing elsewhere. The absence of any reference to the motion in the reporter's record raises the question of whether the motion was presented to the trial court. This, in turn, raises the question of whether the asserted error was preserved. See Tex. R. App. P. 33.1.
7.We further held that Texas Rule of Evidence 403 (prejudice v. probativeness) limits the admissibility of such evidence when the evidence predominantly encourages comparisons based upon the greater or lesser worth or morality of the victim. Mosley, supra at 262. See also, Salazar v. State, 90 S.W.3d 330 (Tex. Crim. App. 2002). Appellant has not made a Rule 403 claim on appeal.
8.In Jackson v. State, 33 S.W.3d 828, 833 (Tex. Crim. App. 2000), cert. denied, 532 U.S. 1068 (2001), we considered appellant's claim of ineffective assistance of counsel for failing to object to prosecutorial argument that urging the jury to consider victim-impact evidence in answering the future dangerousness special issue. We stated that Mosley held that victim-impact evidence of which a defendant was aware at the time he committed the crime is necessarily relevant to his future dangerousness and moral culpability. We also explicitly said that "victim impact and character evidence is relevant only insofar as it relates to the mitigation issue" and "is patently irrelevant, for example, to a determination of future dangerousness." Mosley, supra at 263.
9.Appellant does not assert that he affirmatively waived submission of the mitigation special issue; rather, he asserts that the state's introduction of the complained-of victim impact evidence was erroneous because it was proffered before he had introduced any mitigation evidence himself.
10.The video appears to be a commercially produced recording of heavy metal concerts.
11.The wording of appellant's point suggests that he may be arguing sufficiency of the anti-parties charge at punishment. However, because he cites only Enmund v. Florida, 458 U.S. 782 (1982), as his primary authority, we will confine our analysis of this point to the Eighth Amendment question addressed in Enmund and hold that any other complaint within this point is inadequately briefed. See Tex. R. App. P. 38.1.