IN THE COURT OF CRIMINAL APPEALS
OF TEXAS



NO. 73,990

 

KEVIN SCOTT VARGA, Appellant

v.


THE STATE OF TEXAS



ON DIRECT APPEAL
FROM HUNT COUNTY

Price, J., delivered the unanimous opinion of the Court.

O P I N I O N


The appellant was convicted in November 2000 of capital murder. Tex. Penal Code §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 judge sentenced the appellant to death. Art. 37.071 §2(g). (1) Direct appeal to this Court is automatic. Art. 37.071 §2(h). The appellant raises twenty points of error. We shall affirm.

In his thirteenth point of error, the appellant claims that the evidence is legally insufficient to prove beyond a reasonable doubt that there is a probability that he would commit criminal acts of violence that would constitute a continuing threat to society. The appellant argues that "this case does not involve torture, disfigurement, necrophilia, body mutilation, or other circumstances that would justify a death sentence without additional evidence." He points to a co-defendant as master-minding the murders and making the decisions for the group. He also points to evidence he says shows that he intended only to rob the victims and did not contemplate murder. The appellant argues that he was acting under the threatening influence of more controlling peers. The appellant emphasizes the State's lack of psychiatric testimony as a "noticeable hole" in their punishment evidence that merits consideration in our sufficiency review. The appellant argues that none of his prior crimes were particularly serious, violent or indicative of future dangerousness. Following is a summary of the pertinent evidence admitted during the guilt and punishment phases of the trial, viewed in a light most favorable to the verdict.

On September 1, 1998, the appellant, Venus Anderson, Billy Galloway, and Deannee Ann Bayless, left Sioux Falls, South Dakota, in Galloway's Bronco, intending to travel to Mexico. On their way south, the appellant asked Anderson if she knew what it meant to "roll" someone. He explained that it meant she would go to a bar, meet a man and take him back to their hotel room, where the appellant would be hiding. When she had the man with his pants down, the appellant would come out and blackmail the man for his money. Anderson agreed to the plan, and the appellant instructed her to choose someone who was older, somewhat weak, and not too heavy. Bayless was going to pretend to be Anderson's sister. In Wichita, Kansas, they decided to carry out the plan. Before leaving their hotel room for a bar, Anderson saw the appellant swing a metal pole around the room and heard him complain that it was too long.

The four went to a bar where Bayless and Anderson met David McCoy. The girls picked up Galloway and McCoy, and the four rode in McCoy's car to the hotel room, where the appellant was hiding in the bathroom with the metal pole. The appellant left the bathroom and entered the room with the pole. Anderson left the room but testified to hearing thuds. Anderson stepped around the corner with Galloway, and Galloway yelled out "that's enough." McCoy was lying on the floor. Anderson testified that the appellant, Galloway, and Bayless began "jumping around and hugging each other and kissing each other and coming up to me and hugging me and asking me if I was all right and telling me it was all right . . . [t]he first murder was always that way, you know. . . . And they kept hugging and kissing me." When Bayless discovered just eighty dollars in McCoy's wallet, Galloway started kicking and spitting on McCoy's body and calling him names. Before leaving the room, they cut out the portion of the carpet soaked with blood and attempted to wipe blood from the walls. They wrapped McCoy's body in blankets and loaded it into the Bronco. They left the Bronco in a parking lot when it broke down a few blocks from the hotel.

McCoy's body was found several days later in a state of advanced decomposition. The medical examiner testified that the skull fractures in the back of McCoy's head were severe: "the bone was broken into so many small pieces they simply fell to the autopsy table." In addition, there was a skull fracture on the floor of the skull of a type that most commonly occurs in car accidents. Both cheekbones, the jaw area, and the left eye socket were fractured. There were numerous lacerations about the head, including some that split the left ear in half. The cause of death was determined to be blunt force trauma to the head.

Meanwhile, after leaving the Bronco, the four continued south in McCoy's car. In Texas, they began to discuss "rolling" someone again. They went to a Holiday Inn in Greenville, where Anderson and Bayless went into the lounge and met David Logie. They eventually left with him in his car, with Bayless driving. Galloway and the appellant followed in McCoy's car. Bayless drove to a deserted area of town behind a building. Bayless and Logie got out of the car to have sex on the hood. A few minutes later, Anderson heard Galloway's voice and saw him punching Logie. Logie was screaming, "Please don't kill me, please. You can have my money . . . my car, anything, but please, please, don't kill me," but Galloway kept hitting him. After several minutes, the appellant appeared from behind the car and handed Galloway an object. Logie was still lying on the ground screaming. Galloway began striking Logie with the object for several more minutes. A police officer testified that a ball-peen hammer and pieces of bloody tree limb were later found near Logie's body. After taking Logie's wallet, the four dragged his body into the nearby woods. They drove McCoy's car into the woods and set it on fire. The medical examiner testified that there were extensive injuries to the head region. There were multiple fractures of the bones above the left eyebrow, fractures to the orbital ridge, the cheeks, the nose, the upper and lower jaws, mandible, teeth, and also other multiple lacerations about the head and upper body, which were consistent with having been struck with a hammer and/or a tree limb. A severely depressed skull fracture at the base of the skull caused a depression into the cranial vault. The body showed abrasions consistent with being dragged. The cause of death was determined to be blunt force injuries to the head.

The foursome continued south in Logie's car, arriving in San Antonio where Anderson and Bayless went shopping at a mall with Logie's credit cards while the appellant and Galloway went to a strip club. When Anderson and Bayless left the mall, they were pulled over by the police. Anderson confessed to the two murders and surrounding events when placed in the patrol car. The appellant and Galloway were arrested at the strip club.

During the punishment phase, the State put on evidence that the appellant and two other inmates attempted an escape while incarcerated at the Hunt County Sheriff's Department. When he was caught during the attempt, the appellant stated, "I had to try. I have nothing to lose."

The State presented evidence of several domestic dispute calls made by the appellant's ex-wife to police in which she accused the appellant of hitting her. Responding to one call, an officer saw the appellant strike someone twice in the head. There was testimony that, in the house where the appellant was living immediately before leaving with the three co-defendants on their road trip, police officers discovered the words "death is coming" written in mustard in the bottom of the sink. They also discovered the appellant's ex-wife's driver's license and what appeared to be a protective order on which was handwritten "fuck you". The driver's license had been scratched with a knife or similar sharp object in an attempt to destroy the image of his ex-wife's face.

While incarcerated at a South Dakota prison, the appellant was classified among the most aggressive prisoners who were viewed as "basically the predators of the institution." A prison official testified that the appellant preyed on weaker inmates and was a constant threat to security. The appellant had served time in prison at least twice on burglary charges.

In conducting a legal sufficiency review of the evidence to support the jury's affirmative finding on the future dangerousness issue, the reviewing court views the evidence in a light most favorable to the verdict to determine whether any rational trier of fact could have found beyond a reasonable doubt that there is a probability that the appellant would commit criminal acts of violence that would constitute a continuing threat to society. See Jackson v. Virginia, 443 U.S. 307 (1979). The evidence admitted during the guilt and punishment phases of the trial supports the jury's finding regarding future dangerousness.

The facts of these murders were horrible and gruesome. Both victims died as a result of severe beatings to the face and head. The appellant and his cohorts planned the murders in advance for the purpose of funding their road trip. The victims were targeted as weak and were lured away to secluded places by promises of sex where they were then attacked mercilessly.

In addition to the facts of the two murders, the State admitted evidence of an attempted escape from a county jail, the appellant's violent and assaultive conduct toward his ex-wife, possession of marijuana, the appellant's reputation for violence in prison, and his criminal record, including a conviction for theft and two convictions for burglary. Contrary to the appellant's arguments, the jury was not required to give controlling weight to the absence of psychiatric evidence or to view the evidence as the appellant views it. See Johnson v. State, 571 S.W.2d 170, 173 (Tex. Crim. App. 1978). Viewed in the light most favorable to the jury's verdict, the evidence was legally sufficient to support the jury's verdict on the first special issue. Point of error thirteen is overruled.

In his first point of error, the appellant claims that the trial court erred by admitting evidence of other bad acts without requiring the State to show, prior to admission, that the appellant committed the alleged acts. Specifically, the appellant complains of admission of the following evidence at the punishment phase of the trial: (1) a photograph of a kitchen sink with the words "death is coming" written in it; (2) a photograph of the slashed driver's license of the appellant's ex-wife, Nicole Varga; (3) a photograph of a typed document with the words, "fuck you" printed across it; and (4) testimony describing the document on which Nicole Varga's driver's license was found. The appellant argues there was not a sufficient connection between this evidence and the appellant to establish that the appellant committed the acts.

Uncharged misconduct and other bad acts are admissible during the punishment phase of a capital murder case if they are clearly proven, relevant, and more probative than prejudicial. Rachal v. State, 917 S.W.2d 799, 807 (Tex. Crim. App. 1996). Before these acts are relevant, the State must clearly prove that an offense was committed and that the accused was its perpetrator. Kemp v. State, 846 S.W.2d 289, 307 (Tex. Crim. App. 1992). Admission of such evidence is within the sound discretion of the trial court. Ibid.

The appellant testified during the guilt phase of trial that he lived at 801˝ Southlake Avenue in Sioux Falls, South Dakota, in September of 1998, immediately before leaving town with his co-defendants on a road trip. During the punishment phase, Sergeant Marla Shrink testified that she was dispatched to the same address on September 4, 1998, to take photographs. She testified that written in a substance that appeared to be mustard in the bottom of the sink were the words, "death is coming." She stated that the substance was not fresh, but was "dried up somewhat" and "crusty." Shrink also testified that she took photographs of a protective order on which were handwritten the words "fuck you" and that Nicole Varga's driver's license was found with the protective order. She testified that it appeared that the driver's license had been scratched with a knife in an apparent attempt to destroy the image of the face. On cross-examination, defense counsel questioned whether others besides the appellant had access to the residence and whether the protective order might have been something else, like a parole plan.

Shrink's testimony was adequate to clearly prove that the extraneous acts occurred and that the appellant committed them. The appellant testified that he had been charged with domestic assault for assaulting his ex-wife. As a police officer, Shrink would know the difference between a protective order and a parole plan. And although other people may have had access to the appellant's residence, the appellant would have been more likely to have had a personal stake in a protective order involving his ex-wife than anyone else. Similarly, the appellant's involvement in two murders just hours or days after the words "death is coming" were written in the sink at his house is evidence that he, as opposed to some other person, wrote the words. A rational jury could have concluded that this evidence established by clear proof that appellant committed the acts. Thus, the ruling of the trial court was within the zone of reasonable disagreement. The court did not abuse its discretion in admitting the photographs and testimony. Point of error one is overruled.

In his second point of error, the appellant claims that the trial court erred when it gave an improper charge to the jury on the future dangerousness issue and that the trial court's error denied him a fair punishment hearing. The appellant alleges that both parties agreed to instructing the jury that the term "probability" meant "something that's more likely than not to occur." However, the trial court instructed the jury that the definition of probability is "something that is more likely to occur that [sic] it is not." The appellant argues that because the definition is different from that mutually agreed upon by the parties and was difficult to understand, the jury was forced to speculate about what it meant. The definition is confusing and does not make sense. The trial court erred in submitting it in such form. (2)

Because the appellant failed to object to the complained-of definition, he therefore must show that the error was so egregious and caused such harm that he was denied a fair and impartial trial. Ovalle v. State, 13 S.W.3d 774, 786 (Tex. Crim. App. 2000); Prystash v. State, 3 S.W.3d 522, 539 (Tex. Crim. App. 1999), cert. denied, 529 U.S. 1102 (2000); Abdnor v. State, 871 S.W.2d 726, 732 (Tex. Crim. App. 1994). The error does not rise to the level of egregious harm in this case.

The record reflects that each juror was given a copy of the charge and encouraged to follow along as it was read aloud by the court before closing arguments and referred to during closing arguments. The record does not reflect whether the trial court read the definition correctly. However, during his closing argument, the prosecutor read the definition of probability correctly, referring the jurors directly to their copies of the charge:

Now, I'm going to ask you to go to your charge and look where it talks about Special Issue 1, Paragraph 11. In the second paragraph under Special Issue No. 1, it says as follows, you are instructed that the definition of probability is something that is more likely to occur than it is not.



He expounded briefly on what that meant. A few minutes later, he again stated, "probability - you are instructed that the definition of probability is something that is more likely to occur than is not." Defense counsel also touched on the definition of probability in his closing argument, stating, "Let's talk about the evidence that says there's a probability - that it's more likely than not - that [the appellant's] going to commit these criminal acts of violence . . .." (Emphasis added). Finally, when the jury's verdict was read aloud, the trial court read the definition correctly, and none of the jurors expressed disagreement. (3) In light of the fact that the jurors heard the proper definition at least three times during closing argument when they had the opportunity to follow along on their copies of the charge and identify and correct the error, and both parties discussed and applied what probability meant in their arguments, and none of the jurors expressed disagreement at the court's reading of the verdict, there was no egregious harm. Point of error two is overruled.

In his third point of error, the appellant claims that his trial counsel's failure to object to the improper definition of probability rendered the totality of counsel's representation during the punishment phase ineffective. The appellant refers to the erroneous definition of probability discussed in the previous point of error and argues that counsel's failure to object to the charge fell below an objective standard of reasonableness.

To establish a claim of ineffective assistance of counsel, the appellant must prove by a preponderance of the evidence that his counsel's performance fell below an objective standard of professional norms. Strickland v. Washington, 466 U.S. 668, 687 (1984). There is a strong presumption that counsel's performance fell within the wide range of reasonable professional assistance. Id. at 689. Even if counsel's performance was deficient, the appellant must show that the deficient performance prejudiced his defense. That is, he must demonstrate a reasonable probability that, but for that deficiency, the outcome would have been different. Id. at 687. A reasonable probability means a probability sufficient to undermine confidence in the outcome of the proceedings. Ibid.

Regardless of whether counsel's performance fell within an objective standard of professional norms, the appellant cannot show that he was prejudiced for the same reasons discussed in the previous point of error. The jurors heard the proper definition at least three times during closing argument when they had the opportunity to follow along on their copies of the charge and identify and correct the error. Plus, both parties discussed and applied what probability meant in their closing arguments. Finally, none of the jurors expressed disagreement at the court's reading of the verdict at which time the court read the definition of probability properly. Point of error three is overruled.

In his fourth point of error, the appellant claims that the trial court erred in overruling his request for a mistrial after the State improperly impeached the appellant. The appellant complains of error arising from the following exchange during the appellant's testimony during the guilt phase of the trial:

Q.[Prosecutor]: Well, were you a suspect in a strong-arm robbery in North Dakota - South Dakota?



[Defense counsel]: Judge, I'm going to object -



A.[The appellant]: Not that I'm aware of.



[Defense counsel]: - at this time. If the question is, were you a suspect, I'm going to object to that.



THE COURT: Sustain.



Q.[Prosecutor]: Did you ever go up -



[Defense counsel]: I'm going to ask for an instruction that the jury disregard [the prosecutor's] question.



THE COURT: The jury will disregard anything about being a suspect in any crime.



[Defense counsel]: And in addition, I'm going to move for a mistrial, Your Honor.



THE COURT: Motion for mistrial is denied.



A mistrial is used to halt trial proceedings when an error occurs that is so prejudicial that further time and expense would be wasteful and futile. Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999), cert. denied, 529 U.S. 1070 (2000). A trial court may properly exercise its discretion to declare a mistrial if an impartial verdict could not be reached under the circumstances or if a verdict of conviction could be reached but would necessarily be reversed on appeal due to an obvious error. See ibid. The asking of an improper question will rarely call for a mistrial because, in most cases, any harm can be cured by an instruction to disregard. The denial of a mistrial is reviewed under an abuse of discretion standard. Ibid.

The trial court did not abuse its discretion in denying the appellant's motion for a mistrial in the instant case. The question asked by the prosecutor suggested that the appellant was a "suspect," not a convicted offender, and the appellant answered that he was not. The trial court could have reasonably concluded that the question was not so inflammatory as to be incurable by its instruction to disregard. Point of error four is overruled.

In his fifth point of error, the appellant claims that the trial court erred by admitting into evidence inflammatory and gruesome autopsy photographs of both victims. The appellant complains of State's Exhibit Numbers 196 through 199 and 214 through 217. The record on appeal contains black and white photocopies of the trial exhibits.

Exhibits 196 through 198 are photographs of victim David Logie. Exhibit 196 is a close-up view of Logie's face, and Exhibit 197 is a close-up view of Logie's lower face. As discussed previously, the medical examiner testified that there were extensive injuries of the head region. Referring to Exhibit 196, the medical examiner described the surface injuries and lacerations to Logie's face. The medical examiner further explained that Exhibit 197 shows the extensive injuries to the mouth area in particular, including lacerations to the inner gum of the lower lip and fractures of the mandible, lower jaw, and teeth. It also shows blunt trauma to the nose and eye areas and nose and check fractures.

Exhibit 198 depicts the fractures at the base of the skull. The medical examiner testified that it was necessary to remove the brain in order to fully view the extent of the injuries shown in Exhibit 198. The photograph shows the injuries from the inside-out so that the depressed skull fractures are viewed from inside the skull. Exhibit 199 is a full-body photograph of Logie before the autopsy began. The photograph was taken for the purpose of identifying the body and documenting that it was the same body recovered from the crime scene.

Exhibits 214 through 217 are photographs of victim David McCoy. Exhibit 214 is a full side-view of McCoy's unclothed body in the autopsy room. Exhibit 215 shows the injuries to the victim's skull and head. The skull is opened to better show the injuries to the inside of the cranium. The medical examiner testified that no other picture was offered showing this view of the injury. The medical examiner also testified that Exhibit 216 shows the scalp pulled back to reveal a portion of the skull that is missing. The medical examiner testified that this was the condition of the skull when the body was brought in and that there is no other photograph depicting this injury. Exhibit 217 is an overall view, head to toe, of McCoy's unclothed body in the autopsy room.

Admissibility of photographs is within the sound discretion of the trial court, and the trial court's decision will not be reversed unless it falls outside the zone of reasonable disagreement. Hayes v. State, 85 S.W.3d 809, 815 (Tex. Crim. App. 2002). The trial court applies a Rule 403 balancing test. Id. Autopsy photographs are generally admissible unless they depict mutilation caused by the autopsy. Salazar v. State, 38 S.W.3d 141, 151 (Tex. Crim. App.), cert. denied, 534 U.S. 855 (2001). Even then, photographs might be admissible if the alteration was necessary to fully depict the extent of the injuries in certain cases when the photographs are highly probative and there is no danger that the jury would attribute the autopsy alteration to the defendant. Ripkowski v. State, 61 S.W.3d 378, 392-393 (Tex. Crim. App. 2001); Salazar, 38 S.W.3d at 152.

None of the photographs were duplicative. In the instant case, both victims died of blunt force injuries to the head. The impact of their injuries was illustrated, in part, through the use of the photographic evidence. To the extent the medical examiner had made alterations to better illustrate the extent of the injuries, those alterations were explained during the testimony. The trial court did not abuse its discretion in concluding that the probative value of the photos was not substantially outweighed by the danger of unfair prejudice. Point of error five is overruled.

In his sixth point of error, the appellant claims that the State's punishment argument was so inflammatory and improper that it constituted fundamental error and denied the appellant a fair punishment hearing. In point of error seven, he argues that the effect of the argument was to deny fair consideration of the special issues. The appellant complains of the following argument:

Now, one day you will meet your Maker, and I hope it's not a brutal way. I hope it's peacefully. But you will be in heaven one day. And at that time, you will see David McCoy and David Logie. And they will ask you, on Special Issue No. 3, did you make your verdict based on the law and the facts? Make sure that today when you make this decision that when you get to heaven you can tell them honestly, I made that decision based on the law and the facts, whatever your decision is.



Are you surprised they're arguing for life? I'm not telling you what to come back and say. All I'm saying is when you get to heaven, make sure you can tell David Logie and David McCoy, I made my decision based on the law and the facts. Thank you.



The appellant did not object to the argument, and therefore, he failed to preserve error. Mathis v. State, 67 S.W.3d 918, 926-27 (Tex. Crim. App. 2002); Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996). The appellant argues that an exception exists when the argument is so prejudicial that an instruction to disregard it would not cure the harm. Even then, a defendant must object to such argument and request a mistrial. Mathis, 67 S.W.2d at 926-27 (citing Cockrell, 933 S.W.2d 73). Points of error six and seven are overruled.

In point of error eight, the appellant argues that his trial counsel was ineffective for failing to object to the State's punishment argument discussed in points of error six and seven. To establish a claim of ineffective assistance of counsel, an appellant must prove by a preponderance of the evidence that his counsel's performance fell below objective standards of professional norms. Strickland, 466 U.S. at 687. There is a strong presumption that counsel's performance fell within the wide range of reasonable professional assistance. Id. at 689. Even if counsel's performance was deficient, the appellant must show that the deficient performance prejudiced his defense. That is, he must demonstrate a reasonable probability that, but for that deficiency, the outcome would have been different. Id. at 687. A reasonable probability means a probability sufficient to undermine confidence in the outcome of the proceedings. Ibid.

A plea for law enforcement is a permissible area of jury argument. Lagrone v. State, 942 S.W.2d 602, 619 (Tex. Crim. App.), cert. denied, 522 U.S. 917 (1997). Urging the jury to be able to justify its verdict on the basis of the facts and the law is an appropriate plea for law enforcement. The jury is required by law to base its verdict on the law and the facts and should be able to justify its verdict to anyone on that basis. Cf. Whittington v. State, 580 S.W.2d 845, 847 (Tex. Crim. App. 1979) (holding that prosecutor's comments in jury argument to be able to give their friends and neighbors an answer they could be proud of was a proper plea for law enforcement). The complained-of portion of the prosecutor's argument that the appellant argues does not constitute a proper plea for law enforcement is the reference to a hypothetical encounter between the jurors and the two victims "in heaven." Assuming error in trial counsel's failure to object to this portion of the prosecutor's argument, the appellant's argument that, but for the trial counsel's failure to object, the jury would not have heard the prosecutor's emotional appeal as the final argument before beginning punishment deliberations does not meet the prejudice prong of the Strickland test. The appellant has not shown that, based on the record before us, a reasonable probability exists that, but for trial counsel's failure to object, the result of the punishment phase of trial would have been different. Point of error eight is overruled.

In his ninth point of error, appellant claims that the trial court erred by denying his request for discovery of the chain of custody documentation of the State's physical evidence, which deprived trial counsel of the information necessary to effectively represent the appellant and denied the appellant a fair trial. The appellant filed a pretrial "Motion For Production Of All Chain of Custody Documents," in which he alleged that the State would attempt to introduce several items of physical evidence and sought discovery of the chain of custody documents. The appellant's motion was denied. Among the physical evidence introduced by the State at trial were the appellant's tennis shoes and blue jeans, containing blood spots on which DNA analysis had been conducted. The appellant argues that he was entitled to documentation of the chain of custody for this clothing pursuant to his previously-filed motion.

Defendants have no general right of discovery. Washington v. State, 856 S.W.2d 184, 187 (Tex. Crim. App. 1993). But under Article 39.14, "[u]pon motion of the defendant showing good cause therefor," the court may order the State to produce material evidence in its custody and control. Although the appellant now asserts grounds he says show "good cause" for receipt of the chain of custody documentation of his clothing, no such good cause was specifically pled in his motion.

The appellant alleged in his motion that the State would attempt to introduce several pieces of physical evidence, that the appellant was entitled to discover all documents regarding the chain of custody of all the physical evidence that the State intended to introduce, and that any failure by the State to produce the documents would prejudice him and deny his right to discovery. The motion contained general and conclusory allegations as to prejudice. It contained no allegations as to "good cause." See Art. 39.14. The trial court did not abuse its discretion in denying the appellant's motion. Point of error nine is overruled.

In his tenth point of error, the appellant claims that the trial court erred in "switching definitions" of "reasonable doubt" during jury selection, creating a confusing situation among jurors, which called into question their deliberations and verdict and denied the appellant a fair trial. In his eleventh point of error, the appellant claims the trial court erred in charging the jury on a different definition of "reasonable doubt" than was used to instruct the jurors during jury selection, which denied the appellant a fair trial and punishment hearing.

General voir dire began on September 6, 2000, and individual questioning on September 11, 2000. This Court delivered Paulson v. State, 28 S.W.3d 570 (Tex. Crim. App. 2000), on October 4, 2000. Pursuant to Paulson, the trial court granted the State's request that the definition of "reasonable doubt" as defined under Geesa v. State, 820 S.W.2d 154 (Tex. Crim. App. 1991), no longer be used during voir dire or throughout trial. The appellant objected to the trial court's "switching definitions." The appellant's objection was overruled, and the State's request granted.

In Paulson, 28 S.W.3d at 573, this Court overruled the portion of its opinion in Geesa which required a jury instruction on the definition of "reasonable doubt." In dicta, we noted that "the better practice is to give no definition of reasonable doubt at all to the jury" but that "if both the State and the defense were to agree to give the Geesa instruction to the jury, it would not constitute reversible error for the trial court to acquiesce to their agreement." Ibid. In other words, although there was nothing constitutionally wrong with the Geesa instruction, we held it was preferable for the jury to be given no definition. The appellant argues that in this case, where eleven of the jurors were instructed at voir dire under Geesa and one juror received no such instruction, having been questioned after Paulson, the jurors were necessarily confused and conflicted and applied different burdens of proof.

All jurors were appropriately instructed that the State must prove its case beyond a reasonable doubt. All jurors were provided a charge that did not define the phrase. By arguing that the jurors were necessarily confused and conflicted, the appellant assumes that if jurors have different understandings of a term or phrase, even if their understandings are constitutional and not inconsistent, they are necessarily confused and conflicted. While Geesa's definition is no longer required, the appellant has made no showing that it was unconstitutional. Furthermore, the appellant's allegations that the jurors were confused on the burden of proof are mere conjecture and are without merit. Points of error ten and eleven are overruled.

In his twelfth point of error, the appellant claims the trial court erred in allowing the widow of David Logie to testify about her history as an abused child to rebut the appellant's mitigation evidence. During the punishment phase, the appellant introduced considerable evidence of his abusive childhood and the potential effects of the abuse on his emotional and psychological development. In rebuttal, the State called Diane Logie, who testified that she had been physically abused from age six to thirteen by her stepfather. Her testimony about this was brief, just under two pages in the record. The State referred to the widow's testimony in its closing arguments, arguing that although Diane Logie had a bad childhood she, unlike the appellant, chose not to "go out and commit two brutal murders."

The appellant argues that the testimony was irrelevant victim impact evidence. He argues that it was improper mitigation rebuttal because the testimony about the childhood abuse suffered by the victim's widow was not relevant to whether the jury should believe that circumstances beyond the appellant's control and in his childhood mitigate in favor of sparing his life.

Even assuming that the testimony was irrelevant and improper rebuttal testimony, its admission was harmless. The murders committed in this case were brutal. The complained of testimony was unembellished and brief. Moreover, the point the State was attempting to make through the testimony was not particularly probative nor highly prejudicial, given that it is commonly known that many people experience bad or abusive childhoods and do not necessarily turn to a life of crime. For these reasons, any error in admission of the testimony was harmless. Tex. R. App. Proc. 44.2. Point of error twelve is overruled.

In his fourteenth point of error, the appellant claims that the trial court erred in refusing to instruct the jury during the punishment phase of trial to consider only the appellant's conduct and state of mind in answering the special issues. The jury was instructed on the law of parties in the charge for the guilt phase. During the punishment phase, the appellant requested that the court instruct the jury to disregard the parties instruction given in the guilt phase charge and to consider only the appellant's conduct and state of mind in determining the special issues. The trial court denied the appellant's request.

The punishment charge read, in part, "[I]n this punishment phase of trial you should not consider the instructions given you in the first phase, the guilt-innocence phase, of trial that relate to the law of parties and the responsibility of parties for the acts of others in determining what your answers to the Special Issues shall be." The jury was then given the statutory anti-parties instruction. The jury was instructed that if the appellant himself actually caused Logie's death, or did not actually cause the deceased's death, but intended to kill the deceased or another, or anticipated that a human life would be taken, then the special issue must be answered in the affirmative. The appellant argues that the statutory anti-parties special issue was inadequate because the jury could legitimately answer it affirmatively upon concluding that the appellant merely anticipated that any human life might be lost, regardless of whether it found that the appellant had engaged in any personal conduct or possessed the intent to cause such result. As such, the appellant argues that the statutory issue failed to protect his constitutional right to avoid imposition of the death penalty for the wrongful conduct of others.

The law of parties may not be applied to the special issues. Martinez v. State, 899 S.W.2d 655, 657 (Tex. Crim. App. 1994) (citing Green v. State, 682 S.W.2d 271, 287 (Tex. Crim. App. 1984). While the law of parties can support a conviction for capital murder, the death penalty may be imposed only by examination of the mitigating and aggravating circumstances concerning the individual defendant. Green, 682 S.W.2d at 287 (applying Enmund v. Florida, 458 U.S. 782 (1982)). We have never held, however, that an anti-parties charge must contain particular language, so long as its purpose is met. Martinez, 899 S.W.2d at 657.

The appellant seems to argue that the anti-parties charge is responsible for ensuring a second or back-up finding of guilt by requiring a second finding of culpability and conduct on the part of the defendant. Rather, its purpose is to prevent jury confusion by instructing the jury that the parties law that applied during the guilt phase should not be applied to the special issues. Contrary to the appellant's argument, the possibility that the jury could conclude that the appellant only "anticipated that a human life would be taken" without an additional finding that the appellant engaged in conduct, does not render the charge constitutionally infirm. Admittedly, there is discussion in previous caselaw about conduct of the defendant. See Martinez, 899 S.W.2d at 657 (holding that instruction qualifies as anti-parties charge if it ensures a jury's punishment-phase deliberations based solely upon conduct of that defendant and not that of another party). But conduct is not required. A defendant's intentions and expectations can also be an appropriate basis of a jury's punishment-phase deliberations. Green, 682 S.W.2d at 287 (citing Enmund, 458 U.S. 782, 800). An anti-parties charge should simply make clear that the special issues apply only to the defendant and the defendant's role in the instant offense, whether that role involved conduct or not. The statutory anti-parties charge was sufficient, and the trial court did not abuse its discretion by refusing the appellant's requested charge. See McFarland v. State, 928 S.W.2d 482, 516-17 (Tex. Crim. App. 1996). Point of error fourteen is overruled.

In his fifteenth point of error, the appellant claims that the trial court erred in refusing to include in the punishment-phase jury charge the definitions of terms used in the special issues that the appellant claims effectively undermine the difference between a life sentence and the imposition of the death penalty. The appellant claims that the trial court should have defined several terms: society, continuing threat, commit, criminal acts of violence, constitute, anticipate that a human life would be taken, mitigating circumstance or circumstances, and personal moral culpability.

The appellant claims that the failure to define these terms renders the special issue unconstitutionally vague, and therefore, the special issue does not significantly narrow the class of people eligible for the death penalty. In support of his claim the appellant cites Godfrey v. Georgia, 446 U.S. 420 (1980). In that case, the United State Supreme Court held that the Georgia Supreme Court's construction of the death penalty statute was unconstitutional because the words "outrageously or wantonly vile, horrible and inhuman" were too vague to restrain arbitrary and capricious infliction of the death sentence. Id at 428-429.

The appellant claims that the terms in the first special issue are unconstitutionally vague, but his bare assertion is unpersuasive. He fails to explain what it is about each term or phrase that renders them vague. As a result, we cannot say that the trial court erred in denying the appellant's request to define the terms. Point of error fifteen is overruled.

In his sixteenth point of error, the appellant claims that the Texas death penalty scheme violated his rights against cruel and unusual punishment and due process of law under the Eighth and Fourteenth Amendments of the United States Constitution by requiring at least ten "no" votes for the jury to return a negative answer to the punishment special issues. We have repeatedly considered and rejected identical arguments, and the appellant presents no new arguments to persuade us to revisit this issue. Johnson v. State, 68 S.W.3d 644, 656 (Tex. Crim. App. 2002); Wright v. State, 28 S.W.3d 526, 537 (Tex. Crim. App. 2000), cert. denied, 531 U.S. 1128 (2001); Chamberlain v. State, 998 S.W.2d 230, 238 (Tex. Crim. App. 1999). Point of error sixteen is overruled.

In his seventeenth point of error, the appellant claims that the Texas death penalty scheme denied him due process of law and imposed cruel and unusual punishment, in violation of the Fifth, Eighth, and Fourteenth Amendments of the United States Constitution because of the impossibility of simultaneously restricting the jury's discretion to impose the death penalty while also allowing the jury unlimited discretion to consider all evidence mitigating against imposition of the death penalty. In his eighteenth point of error, the appellant asserts the same claim under the due course of law provision of Article I, Sections 13 and 19 of the Texas Constitution. The appellant relies on Justice Blackmun's dissent in Callins v. Collins, 510 U.S. 1141 (1994). We have previously rejected identical arguments, and the appellant presents no new arguments to persuade us to revisit these issues. McFarland, 928 S.W.2d at 520; Lawton v. State, 913 S.W.2d 542, 558 (Tex. Crim. App. 1995), cert. denied, 519 U.S. 826 (1996). Points of error seventeen and eighteen are overruled.

In point of error nineteen, the appellant claims that the cumulative effect of the above-enumerated constitutional violations denied him due process of law in violation of the Fifth and Fourteenth Amendments of the United States Constitution, even if no single infraction rose to that magnitude. In point of error twenty, the appellant makes the same claim under the due course of law provision of Article I, Sections 13 and 19 of the Texas Constitution. Because we have found no violation of the federal or state constitutions, the appellant's claims are without merit. See Chamberlain, 998 S.W.2d at 238. Points of error nineteen and twenty are overruled.

The judgment of the trial court is affirmed.



Delivered: June 25, 2003.



Do Not Publish.



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

2. The State asserts that the court's definition most likely contained a typographical error and was meant to provide, "something that is more likely to occur than it is not." (Emphasis added). That definition would have been consistent with the definition agreed upon by the parties.

3. Although the verdict form, like the charge, also contained the improper definition, the trial court read,



Special Issue No. 1, is there a probability that the defendant, Kevin Scott Varga, would commit criminal acts of violence that would constitute a continuing threat to society? You are instructed the definition of probability is something that is more likely to occur than is not. Answer, we, the jury, unanimously find and determine beyond a reasonable doubt the answer to this special issue is yes, signed by the foreperson.