IN THE COURT OF CRIMINAL APPEALS
OF TEXAS


NO. 74,097

 

DEON JAMES TUMBLIN, Appellant


v.



THE STATE OF TEXAS




ON DIRECT APPEAL
FROM BOWIE COUNTY

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

O P I N I O N



In February 2001, a 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 judge sentenced appellant to death. Art. 37.071, 2(g). (1) Direct appeal to this Court is automatic. Art. 37.071, 2(h). Appellant raises eight points of error. Because appellant challenges the sufficiency of the evidence at punishment, we will set out the pertinent facts. We affirm.

STATEMENT OF FACTS

Seventy-five-year-old Evelyn Reid lived in her Texarkana home and took care of her mentally retarded, invalid, forty-six-year-old daughter, Mary Ann. For the last thirteen years, Evelyn had employed Jean Burnett to help her for three hours each Monday through Friday afternoon. Throughout the years, Jean's daughter, Marsha, visited the home on several occasions.

On January 6, 2000, sometime after 11:00 p.m., Evelyn's brother, Odis Russ, went to Evelyn's home to check on her. He found the lights on and Evelyn's 1993 Chevrolet Caprice gone. When he entered the residence, he found Mary Ann awake in her bed. From Mary Ann's room, Odis saw his sister lying face down on the living room floor. He went over to her and called her name but received no response. Upon discovering that the phones were not working, Odis left the residence to get help. Paramedics called to the scene noticed blood on the back of Evelyn's head and determined that she was dead. (2) Subsequent investigation of the area showed that a videocassette recorder (VCR) was missing. The authorities issued a "be on the lookout" (BOLO) for Evelyn's car.

While the authorities were investigating the scene of the crime, appellant and Marsha drove the stolen Caprice to Lockesburg, Arkansas, so appellant could see his two children, who lived with their mother, Darla Presley. They arrived at Darla's home shortly after midnight, and appellant knocked on the door. Appellant told Darla that he was doing well and had some money that he wanted to spend on the children. Darla did not want appellant to just take the children, so she accompanied him and Marsha. The five of them then headed back towards Texarkana so appellant could get money from the Red River Federal Credit Union. Unbeknownst to Darla, appellant and Marsha had discovered a credit union card in the wallet they had taken from Evelyn along with a thousand dollars in cash.

In Texarkana, Darla drove into a WalMart parking lot for a brief stop. While there, a Texarkana, Arkansas, police officer recognized the vehicle as the subject of the earlier BOLO announcement. After calling for backup, the officer stopped the vehicle, and all of the adults in the vehicle were arrested for possessing a stolen vehicle. Darla, however, was released shortly thereafter. When the jail personnel inventoried appellant's possessions, they found several items containing the victim's name and a necklace later identified as the victim's. The missing VCR was found in the trunk of the stolen vehicle. Marsha subsequently confessed to helping appellant gain access to Evelyn's home, to disconnecting the phones, and to taking items from the home, however, she claimed that appellant strangled Evelyn. When confronted with Marsha's admission, appellant told the authorities that he wanted to tell his side of the story. In his statement, appellant admitted robbing and killing Evelyn because he and Marsha needed money.

At trial, Marsha testified that weeks before the instant offense, appellant commented that he would like to rob Evelyn. Marsha told him that it was out of the question. However, appellant started talking about taking somebody with him to commit the robbery, saying that he would have to burn the house down afterwards. Appellant knew that Evelyn had an invalid daughter so Marsha took his statements to mean that he would kill both Evelyn and Mary Ann. Marsha stated that she could not let him do that so she decided that she would accompany him. When Marsha said that they would never get away with robbing Evelyn because Evelyn knew her, appellant again commented that they would have to kill the woman. Marsha then testified to the events of the crime including appellant's struggle with and ultimate strangulation of Evelyn.

SUFFICIENCY OF THE EVIDENCE AT PUNISHMENT

In his fifth point of error, appellant claims that the evidence presented at trial was legally insufficient to support the jury's finding that he would be a continuing threat to society. See Art. 37.071 2(b)(1). In reviewing the sufficiency of the evidence at punishment, this Court looks at the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have believed beyond a reasonable doubt that appellant would probably commit criminal acts of violence that would constitute a continuing threat to society. See Jackson v. Virginia, 443 U.S. 307 (1979); Allridge v. State, 850 S.W.2d 471 (Tex. Crim. App. 1991), cert. denied, 510 U.S. 831 (1993). The facts of the crime alone can be sufficient to support the affirmative finding to the future dangerousness special issue. Allridge, 850 S.W.2d at 488.

In addition to presenting facts of a planned and deliberate murder and robbery of an elderly woman, the State presented evidence of appellant's prior crimes. Prior to January 1992, records revealed that appellant had choked female students at school and committed sexually inappropriate acts. In January 1992, at the age of fifteen, appellant was declared a ward of the California courts because of a conviction for sexual battery, a felony in the state of California. Appellant was ordered into a placement program where he could be watched in a structured setting; however, his oppositional and defiant behavior caused him to be terminated from various placements. Several professionals who dealt with appellant as a minor classified him as a sexual perpetrator. Appellant was convicted in Arkansas for forgery on November 7, 1996, and for possessing firearms on June 30, 1996. During a pre-sentence investigation on the forgery offense, investigators found that appellant had committed misdemeanor offenses of making a terroristic threat, possessing a controlled substance, carrying a prohibited weapon, and engaging in the offense of criminal impersonation. Finally, during this case, the State's expert testified that it was ninety to one hundred per cent probable that appellant would commit other acts of violence.

The facts of the instant case plus appellant's history, which shows a continued pattern of violence, permit a rational jury to conclude that appellant would continue to be a threat to society. Accordingly, we hold the evidence legally sufficient to support the jury's affirmative answer to the future dangerousness issue. Jackson, 443 U.S. 307; Allridge, 850 S.W.2d 471. Point of error five is overruled.

VOIR DIRE

In his first point of error, appellant asserts that the trial court erroneously granted the State's challenges for cause to venirepersons Doreen Price and Hazel Fowler based upon their views against the death penalty. See Wainwright v. Witt, 469 U.S. 412 (1985). Under Wainwright a venireperson may be excluded for cause consistent with the Sixth Amendment to the United States Constitution when her views on capital punishment would "prevent or substantially impair the performance of [her] duties as a juror in accordance with [her] instructions and [her] oath." Clark v. State, 929 S.W.2d 5, 6-7 (Tex. Crim. App. 1996), cert. denied, 520 U.S. 1116 (1997); Vuong v. State, 830 S.W.2d 929, 942 (Tex. Crim. App.), cert. denied, 506 U.S. 997 (1992); Moody v. State, 827 S.W.2d 875, 888 (Tex. Crim. App.), cert. denied, 506 U.S. 839 (1992). Prospective jurors may not be excused merely because their beliefs about the death penalty might influence the decision-making process. Clark, 929 S.W.2d at 6-7. In reviewing this issue, we give deference to the trial court's decision to exclude a prospective juror and will reverse only for an abuse of discretion. See Rocha v. State, 16 S.W.3d 1, 6 (Tex. Crim. App. 2000). Furthermore, we will uphold the trial court's decision when a prospective juror's answers are "vacillating, unclear, or contradictory." Id.

During her individual questioning, veniremember Price acknowledged her remarks on her questionnaire that she "could never under any circumstances return a verdict which assessed the death penalty." In further exploring her views on the issue, the prosecutor reiterated to Price the procedure of answering questions in a death penalty case and not directly assessing a life or death sentence. Price reaffirmed her opposition to the death penalty and steadfastly maintained that she could not be a part of its ultimate infliction. By breaking down the procedure at punishment into single steps, defense counsel succeeded in eliciting from Price that she could listen to the evidence, follow the law, and answer the individual questions. However, while discussing the mitigation question, Price became rather equivocal in her answers, finally admitting that she was very confused about the entire process. Although the judge tried to clarify the punishment phase procedure, Price apparently remained confused and became more and more emotional about the prospect of being involved in a situation in which someone could be sentenced to death.

Given the entirety of the voir dire, we conclude that the trial judge was within his discretion in determining that Price's views on capital punishment would have prevented or substantially impaired the performance of her duties as a juror in accordance with her instructions and her oath. Wainwright, 469 U.S. 412 (1985); see also Rocha, 16 S.W.3d at 6; Staley v. State, 887 S.W.2d 885, 893-95 (Tex. Crim. App. 1994), cert. denied, 514 U.S. 1020 (1995).

During questioning by the State, veniremember Fowler also stated, albeit equivocally, that she could not participate in a process in which a person could be sentenced to death. Although Fowler agreed pursuant to defense counsel's questions that she could follow the court's instructions, these answers were likewise equivocal. Finally, when the State asked its last few questions, Fowler stated absolutely that she would answer the punishment questions in such a way that life imprisonment would result. She also unequivocally stated that she could not imagine a set of circumstances in which she would answer the punishment questions in a manner resulting in the assessment of the death penalty.

Given the entirety of the voir dire, we conclude that the trial judge was within his discretion in determining that Fowler's views on capital punishment would have prevented or substantially impaired the performance of her duties as a juror in accordance with her instructions and her oath. Wainwright, 469 U.S. 412 (1985); see also Rocha, 16 S.W.3d at 6; Staley, 887 S.W.2d at 893-95. Appellant's first point of error is overruled.

Appellant contends in his third point of error that the trial court erroneously limited his voir dire of venirepersons Tanyau Ladd and Larry McGee. Specifically, appellant asserts he was improperly prohibited from asking the following questions:

[By defense counsel to veniremember McGee:] So let me give you a couple of scenarios. This is just hypothetically speaking. Okay? Do you think the death of a defenseless person or a small child or someone - it wouldn't be like me and you getting mad at the bar-b-que place and you shooting and killing me. That's a different matter. I'm talking about somebody that murders someone that is defenseless. Do you think there is anything that would be able to keep you from giving that person the death penalty?

* * *

[By defense counsel to McGee:] Mr. McGee, what - if you're presented with a set of facts where a person is totally defenseless and murdered, and horrible things are done to that person, and you were asked to sit on a jury in judgement [sic] of that person that did this, okay, and you were asked to decide answers to the questions that are before you if it was a capital case. Okay?



[McGee:] Ummm-hmmm.



Q And you were certain that person that was on trial had done these horrible things, and robbed and murdered or raped and murdered or whatever the circumstances might be of someone that was defenseless, could you consider life or death, or would it be death to you?

* * *

[By defense counsel to veniremember Ladd:] Okay. Is there a circumstance that you can imagine, any circumstance - not any particular thing but any circumstance you can imagine that would require the death penalty, regardless of the circumstances of mitigation, whatever you want to call it? If someone committed an act in your mind you couldn't consider any mitigation? I mean it would be the death penalty or nothing?



[Ladd:] Well, like a serial killer, or something like that.



Q Anything else?



A I know if somebody was to kill one of my kids, yes, I would.



Q Sure. Sure. So there are situations that are so egregious to you that you could not consider mitigation?



A Right.



Q Okay. Would the murder of a defenseless person be one of those things you could not consider mitigating circumstances in?

* * *

[By defense counsel to Ladd:] Okay. If you were chosen on this jury and if you found that beyond a reasonable doubt that this gentleman sitting right here had murdered this lady in the course of committing a robbery, broken in her home and done this, could you consider both of the questions propounded by the Judge?



After each of these questions, the State objected that the question improperly bound the veniremember to fact-specific situations. Each time the trial judge sustained the State's objection.

The trial court has broad discretion over the process of selecting a jury. Barajas v. State, 93 S.W.3d 36, 38 (Tex. Crim. App. 2002). Without the trial court's ability to impose reasonable limits, voir dire could go on indefinitely. Id. Thus, we leave to the trial court's discretion the propriety of a particular question and will not disturb the trial court's decision absent an abuse of discretion. Id. A trial court abuses its discretion when it prohibits a proper question about a proper area of inquiry. Id. at 4.

A question is proper if it seeks to discover a juror's views on an issue applicable to the case. Id. However, a trial court can declare an otherwise proper question to be impermissible if the question attempts to commit the juror to a particular verdict based on particular facts. Id.; see also Standefer v. State, 59 S.W.3d 177, 181 (Tex. Crim. App. 2001). In addition, a trial judge may prohibit as improper a voir dire question that is so vague or broad in nature as to constitute a global fishing expedition. Id.

In each question, the trial court could have found, based on the context of the voir dire, that the appellant sought to commit the veniremember to resolve, or refrain from resolving, an issue a certain way after learning a particular fact - that is, that the victim was a elderly lady or otherwise defenseless. Further, neither of these facts is necessary to test whether the prospective juror is challengeable for cause. See Standefer, 59 S.W.3d at 182. Thus, the trial judge did not err when he sustained the State's objections to the various complained-of questions. Point of error three is overruled.

In his fourth point of error, appellant complains that the trial court erred in overruling his Batson v. Kentucky, 476 U.S. 79 (1986), objections to the State's removal of veniremembers Theardis Cooksey and Barbara Crittenden from the jury panel. Using peremptory challenges to exclude persons from a jury because of their race violates the Equal Protection Clause of the Fourteenth Amendment. Ladd v. State, 3 S.W.3d 547, 563 (Tex. Crim. App. 1999), cert. denied, 529 U.S. 1070 (2000). The party objecting under Batson must make a prima facie showing of discriminatory motives. Id. If the objecting party makes a prima facie showing, then the burden of production shifts to the other party to come forward with a race-neutral explanation. Id. The objecting party may rebut the race-neutral explanation. Id. The trial court must then decide whether the objecting party has proven purposeful discrimination. Id. Because the trial court's decision often turns largely on an evaluation of credibility, we give the court's decision great deference and will not disturb it unless it is clearly erroneous. Id.

After appellant objected to the State's use of a strike against Cooksey, the trial judge held that simply stating an objection did not adequately make a prima facie showing. However, in the interest of efficiency, the court asked the State to explain its reason(s) for striking Cooksey. The State explained that throughout Cooksey's voir dire, the veniremember expressed concerns about the needs of some ailing family members for whom he was responsible, how he cares for them, and his concerns about being away from them for an extended period of time. Secondly, the State was concerned that Cooksey might harbor some unspoken animosity toward the district attorney's office because he has several family members who have been prosecuted in the criminal justice system in general and by the Bowie County Criminal District Attorney's Office in particular. Appellant did not attempt to rebut the State's reasons, and the judge held that the State's explanation, specifically that of the veniremember's unique family situation, was race-neutral and overruled appellant's objection to the use of the strike. In his brief on appeal, appellant offered examples of other veniremembers with family members in the criminal justice system whom the State had not struck. See Young v. State, 826 S.W.2d 141, 142-47 (Tex. Crim. App. 1991)(holding that a comparative analysis of disparate treatment of other venirepersons may be presented for the first time on appeal). Appellant, however, did not mention that portion of the State's explanation regarding Cooksey's unique situation of having to care for his ailing family members.

After appellant objected to the State's use of a strike against Crittenden, the trial judge again held that simply stating an objection did not adequately make a prima facie showing. In the interest of efficiency, the court asked the State to explain its reason(s) for striking Crittenden. With regard to this prospective juror, the State gave the following explanation:

Judge, Mrs. Crittenden is a mental health specialist with the Northeast Texas MHMR. She says that she deals with clients who are disabled, trying to help them mainstream into society, trying to teach them various skills. During that exchange with her, she told me that in looking at her clients, she does look at their background, things that have happened to them in the past, and that if she were a juror, that is something that she would take into consideration.



As the Court is aware, the defense on many occasions with many of the prospective jurors has alluded to and requested of jurors their thoughts on the proposal that there may be some evidence of a bad background that the defendant may have lived through, and whether or not that would affect them. It is the State's position that Mrs. Crittenden, because of her training, because of her employment and her experience on the job, she may be more susceptible to that type of evidence than any other juror might be. She is uniquely situated in that situation.



In addition, in her questionnaire she noted that she had no feelings and wrote "none" when she was asked about her feelings toward law enforcement. She stated the same response with regard to law enforcement officers. When asked about her feeling about the criminal justice system, she said that it could use a little work. And when asked how successful she thought the criminal justice system was, she said she felt like it was mostly unsuccessful.



She also during her exchange with myself while I was concluding voir dire, told me that rehabilitation in her mind was a major reason for punishment, and that rehabilitation was something that she weighed very, very heavily. That being the case, she did not appear to the State to be a juror who would willingly give either punishment in this case, which is either life in the penitentiary or the death penalty, equal consideration because of her emphasis on the ability to rehabilitation [sic] individuals. Her examples of the only two people that she could think of that could not be rehabilitated were child molesters and the murderer[s] of children.

 

The judge held that the State's reasons were race-neutral and overruled appellant's objection to the use of the strike. Appellant did not attempt rebuttal. On appeal, appellant offers a comparative analysis of other veniremembers who were not struck despite similarities in their responses to individual topics. For instance, appellant notes that veniremember Ann Farris also had a strong counseling background and indicated she would have difficulty setting aside her specialized knowledge. Unlike Crittenden, however, Farris indicated on her questionnaire that rehabilitation was the least important objective of punishment; she felt it was not very successful. In fact, none of the veniremembers compared exhibited the same combination of factors for which the State struck Crittenden.

Because the State offered race-neutral motives for its strikes, and appellant failed to rebut those motives, we hold that the trial court did not err in allowing the State's challenges to Cooksey and Crittenden. Appellant's fourth point of error is overruled.

ADMISSION OF EVIDENCE

Appellant complains in his seventh point of error that the trial court erred in overruling his motion to suppress his written statement. Appellant asserts that the police gave him extradition papers to sign. When he signed the extradition form, officers told him to sign other papers that went with the form. Later that morning, the police presented appellant with a document that appeared to be his confession. However, he denied ever having made the statement. Appellant does not argue misconduct on the State's part; rather, he argues that the statement was not voluntarily made or of his own free will. We will address appellant's point using the same law of voluntariness that he uses in support of his argument.

"[A] defendant in a criminal case is deprived of due process of law if his conviction is founded, in whole or in part, upon an involuntary confession, without regard for the truth or falsity of the confession, and even though there is ample evidence aside from the confession to support the conviction." Jackson v. Denno, 378 U.S. 368, 376 (1964). The defendant has a right to object to the use of the confession and the right to a hearing to determine whether the confession was voluntary. See id. at 377. The trial court is the sole fact-finder at a Jackson v. Denno hearing and may choose to believe or disbelieve any or all of the witnesses' testimony. Dewberry v. State, 4 S.W.3d 735, 747-48 (Tex. Crim. App. 1999), cert. denied, 529 U.S. 1131 (2000). This Court will not disturb any finding which is supported by the record. Id.

During the hearing on appellant's motion to suppress, Detective Steve Shelley of the Texarkana (Texas) Police Department testified about his investigation of the case which led to appellant's arrest. Specifically, on January 6, 2000, he was notified that a vehicle had been stolen from the scene of a murder. A BOLO was issued for the vehicle with the Texarkana (Texas) Police Department, the Texarkana (Arkansas) Police Department, and several other agencies. In the early morning hours of January 7, the Arkansas police stopped a vehicle matching the description in the BOLO and arrested its three adult occupants: appellant, Marsha Burnett, and Darla Presley.

The next morning, appellant signed a waiver of extradition, which form, Shelley testified, was the only form in front of appellant at the time of signing. Immediately after appellant signed the document, a magistrate entered the interview room and gave appellant his statutory warnings. The magistrate then left, and Shelley and Captain Ronny Sharp sat down with appellant and told him that Marsha had already given them a statement concerning the events of the murder. At that time, appellant advised them that he would like to tell his side of the story. Shelley explained to the court that it had been his practice for the last several years to have an oral conversation with a defendant first. Then Shelley would type the statement using the defendant's words as he and the defendant went back over the circumstances of an offense. After typing the statement, Shelley gave appellant an opportunity to look over the statement and make any changes he felt were necessary. Appellant made one change to the document, initialed that change, and then signed the statement. Finally, Shelley testified that he never threatened or otherwise tried to intimidate appellant, any of his family, or appellant's co-defendant in any manner.

Appellant then took the stand on his own behalf and testified that when officers gave him the extradition form to sign, three additional pages were lined up behind it in a way that only the signature lines could be seen. Appellant claimed that he was told to sign all four sheets of paper, and he never looked at the contents of the last three pages. Rather, he assumed that they were all part of the extradition document. Appellant also noted that after he had signed the first sheet of paper, the Arkansas officer took back his pen and left the room. Shelley then gave appellant his pen to finish signing the remaining three pages. Shortly thereafter, Judge Hadaway entered the room to give appellant his statutory warnings. After Hadaway left, appellant claims that Shelley handed him three pages of paper which purported to be a statement that he had made about the offense. He recognized his signature on the bottom of each of the pages but testified that he never made the statement that was contained within the pages. Instead, appellant claimed that he had told the officers that he had been at the victim's residence to buy a car from her but that he had never entered the home. Rather, his co-defendant went inside for a brief time, returned with the car keys, and stated that they could take the car.

After the conclusion of the testimony, the trial judge heard arguments. He then stated on the record that "the version [of the events] as given by [the defendant] tests the limits of credibility," and he overruled the motion to suppress. The judge later entered findings of fact and conclusions of law that appellant freely and voluntarily gave the written statement, "without threat, intimidation, physical violence, promises of reward, compulsion, persuasion or any other inducement." Because the record evidence supports the trial court's conclusions, we hold the trial court did not abuse its discretion in overruling appellant's motion to suppress. Appellant's seventh point of error is overruled.

Appellant complains in his second point of error that the trial court erroneously admitted oral statements appellant made after his arrest. He claims that the statements were admitted in violation of Article 38.22, section 3(a)(5) because he did not have notice of the statements prior to trial. Appellant also contends in this point that the court erred by failing to grant his motion for new trial on this issue.

During the State's redirect examination of Shelley, the prosecutor asked the detective if, during the course of their conversation, appellant had told him what he was wearing when he committed the crime. Defense counsel objected to any oral admission by his client because, "It's not in compliance with the Code of Criminal Procedure, as well as anything that's not in this written statement and if there is such, I'm entitled to notice of it. I'm entitled to all notice of any statements my client has made." The prosecutor responded that appellant did have notice because the officer's report reflects that "there was a discussion about the clothing." He also claimed that information about the discussion was in the officer's affidavit for a search warrant for Burnett's apartment. The trial judge overruled the objection. The State then elicited testimony from Shelley that appellant had told him that the clothes he was wearing during the offense could be found on the bed in the bedroom at 204 Griff King Courts.

Appellant stated in his written statement that, "The clothes that I was wearing [during the offense] are at 204 Griff King Cts." However, he did not say that they were in a particular room or in a particular place. Because the record does not contain copies of the officer's report or the affidavit he used to support the search warrant, we cannot assess whether or not the complained-of information was included within those documents. We also cannot determine whether defense counsel had the requisite notice of the complained-of information. Nonetheless, we can still address appellant's complaint on appeal.

As a general rule, oral confessions are not admissible unless certain conditions are met. Art. 38.22, 3(a). However, Article 38.22, section 3(c), provides that those conditions:

shall not apply to any statement which contains assertions of facts or circumstances that are found to be true and which conduce to establish the guilt of the accused, such as the finding of secreted or stolen property or the instrument with which he states the offense was committed.



By its express terms, this section dispenses with the notice requirement of Article 38.22, 3(a). Further, the examples given in Article 38.22, section 3(c), are illustrative only and not a limitation on the statements which conduce to establish guilt and are shown to be true. Gunter v. State, 858 S.W.2d 430, 447-48 (Tex. Crim. App.), cert. denied, 510 U.S. 921 (1993).

Appellant claims the exception of Article 38.22, section 3(c) does not apply because the officers took a statement from Burnett prior to appellant's statement. (3) Appellant points out that Burnett told officers about the specific location and type of clothing, and therefore the officers were aware of those specific facts when appellant gave officers the same information.

In Santana v. State, 714 S.W.2d 1, 14 (Tex. Crim. App. 1986), a co-defendant told police where the weapon used during the commission of the crime was located. The defendant was then questioned and he also revealed the location of the weapon. Id. at 14. The defendant complained that his statement was inadmissible because the police already knew where the weapon was located as a result of the information that they had obtained from the co-defendant. Id. This Court stated, "The fallacy with appellant's argument is that at the time appellant gave his oral statement, the police had not ascertained that [the co-defendant's] statement as to the location of the weapon was true . . . The information contained within the [defendant's and co-defendant's] statements was new to the police . . . ." Id. The same rationale applies in this case. At the time appellant told Shelley that the clothes he was wearing during the offense could be found on the bed in the bedroom at 204 Griff King Courts, the officers had not ascertained that Bennett's statement regarding the location of the clothing was true. See id. Shelley testified at trial that, based upon the information appellant provided, as well as other information, he was able to obtain a warrant for 204 Griff King Courts. He located the clothes exactly where appellant told him they were. These clothes were then submitted for DNA testing. The testing revealed the presence of the victim's blood. Thus, the complained-of statements contained assertions of facts which were found to be true and helped establish appellant's guilt. See id. The trial court did not err in admitting the statements or overruling appellant's motion for new trial on the issue. Point of error two is overruled.

Appellant complains in his sixth point of error that, during the guilt or innocence phase of trial, the trial court erred in allowing "evidence of extraneous offenses and acts." In his argument, appellant appears to assert that this evidence was admitted in violation of Texas Rule of Evidence 404(b), which prohibits the admission of evidence of other crimes, wrongs, or acts to prove appellant's character or to show that he acted in conformity with that character; Rule 403, which prohibits the admission of evidence when the probative value of that evidence is substantially outweighed by the danger of unfair prejudice; and Rule 402, which prohibits the admission of irrelevant evidence.

Appellant complains about the State eliciting the following testimony regarding comments he made about his trip with Darla, Marsha, and his children:

[By the State:] Ms. [Darla] Presley, when you got back in the car at the Wal-Mart, were you planning on staying with the defendant and [Marsha], or were you planning on making them take you back up to Locksburg [sic]?



[By Darla Presley:] The plan was to get a motel room.



Q That was the original plan.



A Yes.



Q Did the defendant say something to you that changed your plans?



Appellant's objection on relevance was overruled. In response to the prosecutor's question, the witness recalled that appellant wanted to get a motel room so that he could be with both Darla and Marsha "in an intimate sense." The State thereafter questioned Darla about other matters.

Because appellant failed to object to the complained-of comment under either Rule 404(b) or Rule 403, he has failed to preserve anything for this Court to review on those grounds. See Tex. R. App. P. 33.1. He did, however, object that the statement was not relevant to any issue in the case. Thus, we will review the issue for relevancy. See Tex. R. Evid. 402.

The Texas Rules of Evidence define relevant evidence as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Tex. R. Evid. 401. The consequential fact or issue need not be contested before the evidence can be relevant. Lockhart v. State, 847 S.W.2d 568, 573-74 (Tex. Crim. App. 1992), cert. denied, 510 U.S. 849 (1993). Evidence is relevant if it influences facts that concern the ultimate determination of guilt. Id. However, the fact that appellant wanted to engage in a mnage trois with his ex-girlfriend and his current girlfriend has no bearing on any fact that concerns the ultimate determination of guilt or even on any fact that gives rise to an inference of guilt. We fail to understand the relevancy of this testimony.

Notwithstanding this error, however, it is well-established that questions regarding the admission of evidence are deemed harmless if the same evidence is elsewhere introduced without objection. See Chamberlain v. State, 998 S.W.2d 230, 235 (Tex. Crim. App. 1999), cert. denied, 528 U.S. 1082 (2000); McFarland v. State, 845 S.W.2d 824, 840 (Tex. Crim. App. 1992), cert. denied, 508 U.S. 963 (1993). Marsha later took the stand and testified, without objection, that appellant had expressed his desire for the three of them to engage in a mnage trois. Because this testimony is identical to the testimony appellant previously objected to and now complains about on appeal, and because the testimony was introduced without objection, the trial court's error in admitting the testimony through Darla is rendered harmless. Id.

Appellant next complains about Marsha's testimony regarding marijuana she and appellant put inside a cigar she and appellant smoked. Because appellant made no objection to this testimony at trial, he has waived any error regarding its admission. Tex. R. App. P. 33.1. Point of error six is overruled.

CONSTITUTIONALITY OF STATUTE

In point of error eight, appellant asserts that Article 37.071 is unconstitutional because it impermissibly shifts the burden of proof on the mitigation issue to the defendant. We have addressed and rejected this claim before, and appellant has given us no reason to revisit the issue here. See Matchett v. State, 941 S.W.2d 922, 935 (Tex. Crim. App. 1996), cert. denied, 521 U.S. 1107 (1997). Point of error eight is overruled.



We affirm the judgment of the trial court.



Hervey, J.



Delivered: March 19, 2003

Do Not Publish

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

2. The medical examiner later determined that Evelyn had been strangled to death.

3. Appellant also claims, without authority, that the provision does not apply because the shirt was not the instrument used to kill the victim. As mentioned above, the example given in Article 38.22, section 3 (c), in particular, that "the instrument with which he states the offense was committed," is illustrative only.