1992 WL 175742

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Court of Criminal Appeals of Texas.

Francis Elaine NEWTON, Appellant,


The STATE of Texas, Appellee.

No. 70770.  June 17, 1992.

Appeal from 263rd. Judicial District, Harris County; Charles Hearne, Judge.

Attorneys and Law Firms

Charles Freeman, Houston, for appellant.

John B. Holmes, Jr., Dist. Atty. and Roger Haseman & Edward Porter, Asst. Dist. Attys., Houston, Robert Huttash, State’s Atty., Austin, for the State.




MILLER, Judge.

*1 Appellant was convicted of capital murder. See V.T.C.A., Penal Code, Section 19.03(a)(6). After the jury made an affirmative finding on both of the special issues submitted under Article 37.071(b)(1) and (2), V.A.C.C.P., the trial court imposed the penalty of death. This case is before us on direct appeal. Article 37.071(h), V.A.C.C.P.

Because appellant contests the sufficiency of evidence to sustain her conviction, we will review the facts of her case. On the evening of April 7, 1987 at 8:27 p.m., Deputy R.W. Ricks was dispatched to an apartment complex at 6126 West Mount Houston in response to a possible shooting. Appellant was at the location, along with her cousin, Sondra Nelms. Lying on a couch in appellant’s apartment, Ricks found the body of Adrian Newton, appellant’s husband, with a bullet wound to the head, and the bodies of Alton Newton, seven years old, and Farrah Newton, twenty-one months old, appellant’s children, both of whom had died from gunshot wounds to the chest. There were no signs of forced entry into the apartment, nor any signs of a struggle.

Earlier the same evening, between 7:00 and 7:30 p.m., appellant arrived in an automobile at Sondra Nelms’ residence at 6524 Sealy. Appellant asked Sondra to come over to appellant’s apartment to visit. Before leaving Sondra’s house, appellant took a blue bag out of her car and put it in an abandoned house which belonged to her parents, located next door at 6520 Sealy. Upon arrival at appellant’s apartment, they found appellant’s husband and two children dead.

Later that evening, homicide detective Michael Talton spoke with Nelms, who took him to the house at 6520 Sealy. Inside he found a blue bag containing a blue steel Raven Arms .25 automatic, which he turned over to a crime scene officer.

The gun’s owner, Michael Mouton, had loaned the gun to his cousin, Jeffrey Frelow, five or six months prior to the murders. Jeffrey Frelow had known appellant since junior high school, and began to have a sexual relationship with her approximately one to two months prior to the murders. Frelow identified the gun and indicated that he kept it in a chest of drawers in his master bedroom. Because she often did Frelow’s laundry, appellant had access to the drawers and to the gun.

On April 8, 1987, appellant accompanied Detective Michael Parinello during a search of her apartment, where she pointed out the clothing she wore the day of the murders. Parinello collected the clothing and delivered it to the Department of Public Safety Crime Laboratory to test for possible gunpowder residue.

Sterling Duane Newton, the brother of the deceased Adrian Newton, was also living at the apartment where the murders occurred, and was present on the evening of April 7, 1987. When Sterling arrived at the apartment at 5:30 or 6:00, appellant was there. Appellant requested that Sterling leave the apartment to give her some time alone with Adrian to talk over their marital problems. Sterling remained at the apartment for approximately an hour to an hour and a half before leaving.

*2 Ramona Bell, a long time acquaintance of the deceased, Adrian Newton, had been dating him for some time prior to April 7, 1987. Bell knew that appellant and Adrian were on bad terms. Bell testified that on April 7, 1987, she called Adrian from work at approximately 6:45 p.m., and appellant answered the telephone. Bell then spoke to Adrian for about fifteen minutes. During the telephone conversation Adrian told Bell that he was tired and was going to go to sleep, but not until appellant left, because he did not trust appellant.

Alphonse Harrison, a friend of Adrian Newton, had seen him earlier in the day on April 7, 1987, and the two made plans to get together that night. Harrison testified that he called Adrian between 7:00 and 7:15 that evening, and appellant answered the telephone. Harrison never got to talk to Adrian because appellant put him on hold and left him holding for possibly 45 minutes. Harrison hung up but continued to call back and finally got an answer around 9:00 p.m., when appellant’s cousin answered the telephone and told him that Adrian had been shot.

Claudia Chapman was working for a State Farm Insurance agent when she met appellant in September 1986. Appellant came in for automobile insurance, and Chapman talked to her about purchasing life insurance. On March 18, 1987, appellant purchased a fifty thousand dollar life insurance policy on herself, another on her husband, Adrian, and a third on her daughter, Farrah. According to the insurance applications, appellant was the primary beneficiary on the latter two policies, which became effective immediately. Both appellant and her mother had made claims on the policies as of the time of the trial of this cause.

A ballistics expert established that the pistol recovered by Officer Talton was the murder weapon. A forensics expert for the State established that nitrites were present on appellant’s skirt. In the expert’s opinion, the nitrites came from gunpowder residue, and were consistent with someone shooting a pistol in the lower front area of the skirt. He testified that another possible source of nitrites would be fertilizer. A forensic expert for appellant confirmed that nitrites could come from fertilizer.

In her twenty-ninth point of error appellant contends that the evidence is insufficient to sustain her conviction. When reviewing the record for evidentiary sufficiency our standard is set out in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979): “The relevant question is whether after viewing the evidence in the light most favorable to the [verdict], any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson, 443 U.S. at 319, 99 S.Ct. at 2789, 61 L.Ed.2d at 573. This standard applies to direct as well as circumstantial evidence cases. Butler v. State, 769 S.W.2d 234, 238 (Tex.Cr.App.1989). However, in applying the Jackson standard to circumstantial evidence cases decided prior to our decision in Geesa v. State, 820 S.W.2d 154 (Tex.Cr.App.1991)1 we have adopted as a tool for analysis of circumstantial evidence case the following “analytical construct”: that the evidence must exclude every other outstanding reasonable hypothesis other than the guilt of the accused. Carlsen v. State, 654 S.W.2d 444, 449 (Tex.Cr.App.1983), overruled in part by Geesa, see note 1, infra.

*3 Appellant maintains that the evidence against her is circumstantial and that it does not rule out the reasonable hypothesis that someone other than appellant committed the murders of her husband and children. At trial, appellant testified that on the day of the murders she picked up her children after work and came home at around 4:30 p.m. Her husband’s brother, Sterling, came in at 5:00 p.m. She testified that she and her husband decided to reconcile their differences. She would stop seeing Jeffrey Frelow and he was to “stop doing whatever he was doing[.]”2 Then they made love while the children played in the bedroom. Later she changed out of the clothes that were subsequently determined to contain traces of nitrites. She left the apartment about 6:00 p.m. in order to pay her automobile insurance. Before leaving she removed the handgun, that was ultimately determined to be the murder weapon, from its location in a kitchen cabinet, and she placed it in her purse. She denied ever having seen the gun before. She denied knowing that Frelow owned a handgun. Appellant testified that she took the gun because she had overheard a conversation between her husband, Adrian, and Sterling in which mention was made of some trouble involving Adrian. Appellant maintains that she was trying to prevent the trouble. She drove to the place where she thought the insurance company was located, but it had moved. Then, around 7:00 p.m., she went to her cousin Sondra’s house. She stayed away from her apartment because she not only wanted to talk to Sondra but also she wanted to leave Adrian and Sterling alone so that they could talk. Appellant testified that she and Sondra subsequently went back to the apartment; however, prior to leaving Sondra’s residence, appellant took the gun, which she had put in a knapsack, and placed it in the abandoned house next door. She testified that she did this because, if her family had seen the gun, they would have thought that Adrian was in some kind of trouble. Upon arriving home she noticed that the front door was slightly ajar. A short time later she discovered the bodies of her husband and children.

On cross-examination, appellant testified that she was aware that her husband had “cheated” on her during her marriage and that this fact embarrassed her. After discovering her husband with another woman earlier in the year, she may have said that if she caught him “running around” on her again she would kill him. She admitted that she was aware, prior to the killings, that her insurance company had moved to another location. She acknowledged that both Alphonse Harrison and Ramona Bell testified that they had called her residence around 7:00 to 7:30 p.m. and that she had answered the telephone, although she denied that Harrison was correct about the time or that she had ever talked to Bell. She denied knowing Bell, although she had heard that Bell and her husband were having a relationship.

Appellant suggests that “the window of opportunity [to commit the murders] was quite wide”3 and, therefore, the evidence supports a reasonable hypothesis that someone other than appellant is the guilty party. We disagree. It is evident, when we look at the record in the light most favorable to the verdict, that the jury did not find appellant’s hypothesis at all reasonable. The evidence shows that the murders were committed sometime between approximately 7:00 p.m. and 8:27 p.m. on April 7, 1987. Appellant was at the scene of the crime at around 7:00 p.m. Appellant was in possession of the murder weapon and attempted to hide it. Gunshot residue was found on appellant’s clothes.4 Appellant and her deceased husband were having marital problems, and, just a few weeks prior to the murders, she had taken out life insurance policies on her husband and one of her children. Appellant admitted that she may have said she would kill her husband if she once more caught him “running around.” Appellant’s alibi evidence is contradicted by two State’s witnesses whom the jury evidently chose to believe. Clearly, on the strength of these facts, a rational trier of fact could conclude that the only reasonable hypothesis was that appellant committed all three murders. Appellant’s twenty-ninth point of error is overruled.

*4 In her first point of error appellant argues that the trial court committed error by denying her motion to dismiss her court-appointed counsel and appoint new counsel. Appellant’s motion was filed on December 11, 1987, and a notation on the first page of the motion indicates that it was denied the same day. There is nothing in the record to show that appellant ever requested a hearing on the motion in order to substantiate her claim that her court-appointed attorney failed to provide her with effective assistance. Appellant bears the burden of making the court aware of her dissatisfaction with counsel, stating the grounds for her dissatisfaction, and substantiating her claim.  Hill v. State, 686 S.W.2d 184, 187 (Tex.Cr.App.1985). In this case, as in Hill, “because appellant did not request a hearing, no error was presented.” Id. at 187. Appellant’s first point of error is overruled.

In points of error two, three, four, six and seven appellant complains that the trial court erred in granting the State’s challenges for cause against venirepersons William Hanson Goforth, Simmon Ozenne, Levy Davis, Mercedes Fernandez, and Brent Eugene Burks. The State may challenge for cause any venireperson who “has a bias or prejudice against any phase of the law upon which the State is entitled to rely for conviction or punishment.” Article 35.16(b)(3), V.A.C.C.P. The trial court’s decision will be reversed only upon a showing of a clear abuse of discretion. Davis v. State, 782 S.W.2d 211, 216 (Tex.Cr.App.1989), cert. denied, 495 U.S. 940, 110 S.Ct. 2193, 109 L.Ed.2d 520 (1990).

With respect to point of error two, a review of the voir dire of venireperson Goforth shows that he had religious scruples about the death penalty. He testified that if he took the oath he could answer the special issues “yes” if he were convinced that his answers reflected the truth, but, when asked by the court if he could take the oath to be a juror, he stated unequivocally that he could not. A juror who makes it unmistakably clear that he will not take the oath to follow the law is properly subject to a challenge for cause. Ellis v. State, 726 S.W.2d 39, 44 (Tex.Cr.App.1986), cert. denied, 480 U.S. 926, 107 S.Ct. 1388, 94 L.Ed.2d 702 (1987). No abuse of discretion is shown. Appellant’s second point of error is overruled.

With respect to venirepersons Ozenne, Davis, Fernandez, and Burks (points of error three, four, six, and seven, respectively), the State challenged these individuals on the ground that they indicated that they would hold the State to a higher standard of proof than beyond a reasonable doubt. The court granted the challenges and appellant did not object. An appellant who does not object to the exclusion of a venireman waives the right to maintain error on appeal.  Guzmon v. State, 697 S.W.2d 404, 412-413 (Tex.Cr.App.1985). Appellant’s third, fourth, sixth, and seventh points of error are overruled.

*5 In point of error number five, appellant contends that the trial court erroneously forced appellant to unintelligently use a peremptory strike against venireperson, Marilyn E. Knapp. Appellant claims that the court restricted her from asking a proper question as to what constitutes reasonable doubt in a situation where there are reasonable alternatives supported by the evidence. We recognize that “[t]he permissible areas of interrogation to determine the use of peremptory challenges are broad and not to be unnecessarily limited.”  Smith v. State, 513 S.W.2d 823, 826 (Tex.Cr.App.1974). However, limits on voir dire are within the discretion of the trial court. Abuse of discretion occurs when the court prohibits a proper question about a proper area of inquiry. Id. at 826-27.

The record reflects that appellant’s counsel asked the venireperson how she would respond if she were asked to consider several equally reasonable hypotheses, including that of the defendant’s guilt. The State objected to the form of the question, arguing that proper form required the question to be asked in terms of deciding an issue beyond a reasonable doubt. The court sustained that objection and instructed counsel to proceed, using terminology that would put the inquiry in terms of reasonable doubt. Later in the voir dire counsel stated:

Let’s say that five different equal explanations are given to you. You have no reason, using that word again, when you are back there evaluating the testimony, you have five equally valid versions given under oath. You know one may be a little better than the other, you know the second, the second tracks [sic] may be a little better than the fourth, but of one of those five, the version the defendant did it, is reasonable, but this is-

At this point the State once more objected. The trial court instructed counsel to keep her questioning related to the concept of reasonable doubt. The voir dire then continued:

[DEFENSE COUNSEL]: Now with this scenario, do you believe that it’s possible to be convinced beyond a reasonable doubt?

[KNAPP]: I think that I would have to know what those four different versions were-

The State objected that precisely because Knapp would have to know the facts to answer the question, the question was improper. The objection was sustained. Appellant’s counsel then chose a different set of questions to explore the venireperson’s concept of proving an issue beyond a reasonable doubt. At the end of Knapp’s voir dire, appellant struck Knapp with a peremptory challenge.

The State maintains that appellant was never prohibited from asking about the law of circumstantial evidence or the application of the law to alternative reasonable hypotheses. We agree. Inquiry into either area would have been relevant to the venireperson’s understanding of the State’s burden of proof, which, we have held, is a permissible area of inquiry for purposes of voir dire. Woolridge v. State, 827 S.W.2d 900, 906 (Tex.Cr.App.1992). The problem as the State sees it, and as we see it, is two-fold. First, appellant’s objectionable questions, which simply asked Knapp how she would respond to the existence of several equally reasonable hypotheses, lacked any legal foundation; or, put another way, the questions failed to direct the venireperson as to how she would resolve the scenario posed by counsel based on her understanding of the State’s evidentiary burden. The trial court properly directed the appellant to pose her question in terms of reasonable doubt. The second problem arose from the first problem. Lacking a legal context in which to resolve the scenario posed by counsel, the venireperson then indicated she would have to know the facts of the other “equally valid versions” of the evidence in order to decide which one was, we assume from the tenor of counsel’s question, more “valid.” The trial court properly sustained the State’s objection to any attempt by the appellant to commit the prospective juror to any particular hypothetical circumstances. Cuevas v. State, 742 S.W.2d 331, 336 (Tex.Cr.App.1987), n. 6. We find no abuse of discretion in any of the court’s rulings with respect to the voir dire of venireperson Knapp. Appellant’s fifth point of error is overruled.

*6 In point of error number eight, appellant complains that the trial court erred by forcing her to unintelligently use a peremptory challenge against venireperson Paula Stricklin Dennis. During voir dire, appellant’s counsel asked if the venireperson could think of a certain circumstance when she could not consider the full range of punishment. The State objected that the question was improper in that it would force her to commit herself to a specific set of facts, and the trial court sustained the objection. Appellant argues that she was precluded from exploring a proper area of voir dire examination. We disagree. The record reflects that the State, the trial court, and appellant’s counsel qualified the venireperson as to whether she could consider the full range of punishment. Counsel’s question was duplicitous, bringing it “within the court’s discretion ... to curb the prolixity of what can become the lengthiest part of a criminal proceeding.”  O’Bryan v. State, 591 S.W.2d 464, 475 (Tex.Cr.App.1979). Appellant’s eighth point of error is overruled.

In point of error nine, appellant contends that the trial court erred by denying her pre-trial motion for a continuance. Appellant’s counsel, claiming surprise, requested a continuance of one to two weeks for the purpose of evaluating the methodology and either confirming or refuting the results of a test, made available to defense counsel, conducted by the State which showed traces of nitrates on the appellant’s dress. The motion was made in a pre-trial hearing on the day trial was to begin.

The record reflects that the State verbally notified defense counsel of the results of the test on October 5, 1988, with trial expected to begin October 17, 1988, and counsel was informed that the evidence was available for appellant’s testing. Counsel was given a copy of the results two days prior to trial. The trial court overruled the motion for continuance on the ground that no evidence presented at the hearing indicated how long it would take to get the results of any proposed tests by appellant. In addition, the court informed the parties that any time during trial, if defense counsel had the evidence tested, it could be placed into evidence, if admissible.

Appellant claims on appeal that she was deprived of a fair trial by the court’s action. We disagree. The grant or denial of a continuance is vested in the sound discretion of the trial court, and the court’s decision will not be disturbed without a showing of abuse of that discretion. Hernandez v. State, 643 S.W.2d 397, 399 (Tex.Cr.App.1982). See also Freeman v. State, 556 S.W.2d 287, 307 (Tex.Cr.App.1977). Appellant was on notice twelve days prior to trial of the exact nature of damaging evidence in the possession of the State. At the pre-trial hearing appellant maintained that the reason it had not gone forward with its own tests when first notified was that it had waited to examine the “hard copy” of the State’s results, received on October 13, so as to determine the exact tests run by the State on the evidence. With due diligence, it was reasonable for appellant to have determined the State’s methodology for its test results and to have conducted her own tests on the evidence. Further, there is nothing in the record to suggest that appellant would have so benefitted by a continuance that she was deprived of a fair trial. We observe that appellant was given ample opportunity to cross-examine the State’s witness, and then produced her own forensic expert in an effort to mitigate the damaging evidence. We find that the court did not abuse its discretion in denying appellant’s motion. Appellant’s ninth point of error is overruled.

*7 In her tenth point of error appellant contends that the trial court erred in denying her pre-trial motion to prohibit the State from presenting to the jury results of laboratory tests performed on appellant’s clothing. The motion asked the court to grant the requested relief if the court denied the motion for continuance discussed supra. The court reserved a ruling on the motion until such time as the State sought to introduce the evidence. When it did, the motion was argued and the court denied the motion. The evidence was admitted with no objection from the appellant.

Appellant urges us to find that the trial court committed reversible error for the reasons she sets out in point of error number nine. We decline to do so on the basis of our disposition of those reasons. Point of error number ten is overruled.

In point of error eighteen appellant complains that the trial court erred by denying her re-urged motion for a continuance. Appellant’s motion was made on October 20, 1988, during trial, in response to the State’s intention to introduce the results of tests run on appellant’s skirt. A review of the facts as set out in point of error ten convinces us that appellant has failed to demonstrate surprise, a prerequisite for the granting of a continuance during trial. See Article 29.13, V.A.C.C.P. Point of error eighteen is overruled.

In point of error number eleven, appellant contends that the trial court erred by denying her motion for continuance and motion to substitute counsel for the defense. These two motions were argued before the court in the pre-trial hearing held on the day trial began. Appellant sought to substitute attorneys Gerald Fry and David Eisen for her court-appointed attorneys, Ron Mock and Catherine Coulter, and then sought a continuance to allow her retained attorneys to prepare for trial. The record reflects that the court initially granted appellant’s motion to substitute but denied her motion for a continuance. Fry and Eisen then informed the court that their participation as counsel was dependent on a favorable ruling on the motion for a continuance. The court reiterated its ruling on the motion for a continuance, and then allowed Fry and Eisen to withdraw.

Both parties acknowledge that “[a]n accused’s right to represent himself or select his own counsel cannot be manipulated so as to obstruct the orderly procedure in the courts or to interfere with the fair administration of justice.” Thompson v. State, 447 S.W.2d 920, 921 (Tex.Cr.App.1969). Recognizing that the standard for review with respect to the grant or denial of a continuance is whether the trial court abused its discretion, we look at the circumstances of each case in light of various factors, including but not limited to:

(1) the length of delay requested, (2) whether other continuances were requested and whether they were denied or granted, (3) the length of time in which the accused’s counsel had to prepare for trial, (4) whether another competent attorney was prepared to try the case, (5) the balanced convenience or inconvenience to the witnesses, the opposing counsel, and the trial court, (6) whether the delay is for legitimate or contrived reasons, (7) whether the case was complex or simple, (8) whether a denial of the motion resulted in some identifiable harm to the defendant, [and] (9) the quality of legal representation actually provided.

*8 Ex Parte Windham, 634 S.W.2d 718, 720 (Tex.Cr.App.1982). When we look at the record of this case, we find that appellant was ably represented by her court-appointed counsel. Motions were filed on her behalf prior to trial. Her counsel was prepared to go to trial, but for the professed need to examine one of the State’s exhibits, while her retained counsel was not prepared to go to trial and did not indicate in the motion or during the hearing how much time trial preparation would require. The record reflects that her trial counsel put on a vigorous defense. Given the fact that appellant was represented by Mr. Mock from the day of her probable cause hearing on April 23, 1987 (Ms. Coulter was added as co-counsel on January 13, 1988) until the commencement of trial, we are inclined to view her attempt to replace her court-appointed counsel on the eve of trial as a mere attempt at delay. To have granted the motion would have allowed the appellant to manipulate the court’s orderly procedures and would have interfered with a fair administration of justice. Under these circumstances, we find that the trial court did not abuse its discretion in denying this motion for a continuance. Point of error eleven is overruled.

In her twelfth point of error, appellant claims that the trial court erred when it denied appellant’s motion to participate as co-counsel by appellant’s retained lawyers of choice. This motion was presented by attorneys Fry and Eisen immediately after the motion allowing them to withdraw was granted. See the discussion under point of error eleven, supra. The court denied the motion, ruling that the retained attorneys lacked standing to file it. It is unclear from the record whether the motion to participate originated with the attorneys or with appellant; however, as the motion to substitute and motion for continuance discussed in point of error eleven clearly originate with appellant, we will assume, arguendo, that the motion to participate did also, and we will therefore address the merits of appellant’s contention.

It is appellant’s view that she would have been given more effective representation had Fry and Eisen been allowed to participate in her case. She predicates this assertion on the fact that Fry and Eisen had in their possession a list of potential defense witnesses that was not in the possession of her court-appointed attorneys.

The United States Constitution requires only that a defendant be given “reasonably effective assistance of counsel and no more.” Gardner v. State, 733 S.W.2d 195, 207 (Tex.Cr.App.1987), cert. denied, 488 U.S. 1034, 109 S.Ct. 848, 102 L.Ed.2d 979 (1989). The record shows that appellant had the assistance of counsel from April, 1987, until her trial. Co-counsel was appointed in January, 1988. With respect to the witness list, appellant’s co-counsel at trial testified at the pre-trial hearing that she had several conversations with appellant prior to trial about possible defense witnesses. Counsel had spoken with appellant’s mother for several hours about witnesses, and then again in court and on the telephone. Counsel was promised a list of witnesses but was never given them. The record further shows that Fry and Eisen obtained the list from appellant’s mother on October 16, 1988, the day before trial was to begin. On the first day of trial, appellant’s counsel obtained the list from Fry and Eisen, and then moved for a continuance in order to evaluate the witness list. Finally, we observe that the defense in fact put on witnesses during both the guilt/innocence phase and punishment phase of appellant’s trial. The record as a whole reflects that appellant was given reasonably effective assistance of counsel, and the trial court did not abuse its discretion in overruling her motion to allow additional counsel to participate. Point of error twelve is overruled.

*9 In point of error number thirteen, appellant argues that the trial court erred in denying her motion for a continuance in response to the production of the witness list discussed above. We find this point without merit. The facts as we have outlined them in our discussion of point of error twelve show that appellant is in no position to claim surprise. Article 29.13, V.A.C.C.P. See also Gentry v. State, 770 S.W.2d 780, 786 (Tex.Cr.App.1988). Point of error thirteen is overruled.

In her fourteenth point of error, appellant complains that the trial court erroneously overruled her motion to suppress the introduction by the State of the murder weapon (a .25 caliber Raven automatic pistol), the weapon’s magazine, and the blue knapsack in which the weapon was found. The court held a hearing on the motion outside the presence of the jury. Appellant’s motion was denied. When the jury was returned, the State offered into evidence the items mentioned supra and counsel voiced “no objection” to the admission of each of them. The State argues that this action by counsel waives review of appellant’s contention on appeal. We agree. “When an accused affirmatively asserts during trial that he has ‘no objection’ to the admission of the complained of evidence, he waives any error in the admission of the evidence [.]” Dean v. State, 749 S.W.2d 80, 82 (Tex.Cr.App.1988). Appellant’s fourteenth point of error is overruled.

In her fifteenth point of error, appellant contends that the trial court erred by overruling her objection to the admission of Ramona Bell’s testimony concerning statements made to her by Adrian Newton, appellant’s deceased husband. Appellant argues that the statements are inadmissible hearsay. The State counters that appellant did not properly object, thereby not preserving the error for appellate review. In the alternative, the State argues that the testimony of Bell is admissible either as a state-of-mind exception to the hearsay rule or pursuant to V.T.C.A., Penal Code, Section 19.06(a).5

During trial and before the jury, in testifying about the substance of her telephone conversation with Adrian Newton, Bell engaged in the following exchange with counsel for the State:

Q. What did he tell you about being tired at that time?

A. [Bell] That he was going to sleep but not until Frances left.

Q. Did he tell you why he wouldn’t go to sleep until Frances left?

A. Yes.

Q. And what did he tell you?

A. That he didn’t want to fall asleep while she was there because he didn’t trust her.

Prior to testifying as above, and outside the presence of the jury, the State elicited essentially identical testimony from the witness. Both parties extensively argued appellant’s point, that the proffered testimony was hearsay, and they specifically joined issue on whether the testimony fell within the state-of-mind exception to the hearsay rule. The trial judge ruled against appellant. The jury was brought back in, and counsel for the State indicated to the witness that he wanted “to go back to that phone conversation again.” Appellant’s trial counsel asked for, and was granted, a running objection to that “entire line of testimony.”

*10 It is the State’s position that the running objection encompassed too broad a reach of subject matter and, therefore, preserved no error on appeal. We disagree. Rule 52(a) of the Texas Rules of Appellate Procedure provides that

In order to preserve a complaint for appellate review, a party must have presented to the trial court a timely request, objection or motion, stating the specific grounds for the ruling he desired the court to make if the specific grounds were not apparent from the context.

Appellant’s counsel objected during the hearing held outside the presence of the jury, and then timely objected before the jury. Although the running objection is not specific per se, we believe that the specific grounds were quite apparent from the context, and we therefore find that appellant’s objection preserved his complaint in this appeal. Ethington v. State, 819 S.W.2d 854, 858 (Tex.Cr.App1991). See also Sattiewhite v. State, 786 S.W.2d 271, 283-84, (Tex.Cr.App.1989), cert. denied 498 U.S. 881, 111 S.Ct. 226, 112 L.Ed.2d 181 (1990).

As to the merits, appellant claims that the admitted statements violated her rights to confrontation.6 She was harmed, appellant contends, because the statements established Adrian Newton’s fear that appellant would harm him.

The State counters that the statements are admissible to show the deceased’s then existing state of mind or emotions. Tex.R.Crim.Ev.Rule 803(3) provides an exception to the hearsay rule for “[a] statement of the declarant’s then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, or bodily health), but not including a statement of memory or belief to prove the fact remembered or believed[.]” The State finds in Newton’s statements an expression of apprehension, which is “characterized” by what the victim thought appellant might do to him.

The victim’s statements relate only that he is tired, wants to go to sleep, but does not trust appellant. To argue, as do both appellant and the State, that the statements imply or, in fact, are proof that appellant actually harmed the deceased appears to us to be mere speculation. On their face, deceased’s statements relate a state of mind, and we find them admissible under Rule 803(3). Appellant’s fifteenth point of error is overruled.

In point of error sixteen appellant contends that the trial court committed error by overruling her objection to a comment made by the prosecutor during the examination of State’s witness, Sondra Nelms. Prior to Nelms’ testimony, Sterling Newton had asserted in response to examination by the State, “I heard Adrian saying go on and get your stuff and go back where you come from because I don’t want you here.” Counsel for appellant objected that the assertion was hearsay. The court sustained the objection and asked the jury to disregard the comment. During the examination of Nelms, the allegedly improper comment was: “Were you aware that Adrian had told her [appellant] he didn’t want her around any more.” Counsel for appellant objected that the comment assumed a fact not in evidence. The court overruled the objection.

*11 In the instant case, the court erred in overruling appellant’s objection to the prosecutor’s improper question, which clearly assumed a fact not in evidence.7 However, we find the error to be harmless. We note that despite the favorable ruling, the matter was not pursued by the prosecutor. Brem v. State, 571 S.W.2d 314, 322 (Tex.Cr.App.1978). Rather, he began a new line of questioning. In addition, the objected-to comment is only marginally relevant to any proposition. Beyond a reasonable doubt, the error contributed nothing to appellant’s conviction and punishment. Harris v. State, 790 S.W.2d 568, 588 (Tex.Cr.App.1989). See Tex.R.App.P. 81(b)(2).

In point of error seventeen appellant argues that the trial court erred by overruling her objection to an alleged sidebar remark by the prosecutor. The remark was made during the examination of State’s witness, Sondra Nelms. On redirect examination, Nelms had testified that a telephone caller might have heard appellant scream that her husband had been shot. On recross examination Nelms denied that appellant had done so. On further examination, the following exchange occurred:

(Nelms): She had asked the person on the phone to get off the phone so she could call the police.

(prosecutor): Did she tell them why?

(Nelms): I don’t remember.

(prosecutor): That’s right. You don’t remember.

(defense counsel): Object to the sidebar.

Counsel’s objection was overruled.

(prosecutor): You don’t remember exactly what she said, do you?

(Nelms): No, I don’t.

We do not find the prosecutor’s complained-of statement to be sidebar. Nelms had testified that she could not remember why appellant had told the caller to get off the telephone. Her faulty memory was thus a fact in evidence. The prosecutor’s statement was nothing more than a comment on the evidence and we find nothing improper about it. Appellant’s seventeenth point of error is overruled.

In her nineteenth point of error, appellant complains that the trial court erred in refusing her request for a special charge on the defensive issue of alibi. The State replies that the evidence did not raise a defensive issue. The State grants that appellant would be entitled to an instruction on any defensive issue raised by the evidence, but maintains that, at best, the evidentiary basis for appellant’s requested instruction, if believed by the jury, negated an element of the offense and did not present a defensive issue or affirmative defense for the jury’s consideration.

The threshold consideration is whether the defensive matters raised by appellant constitute a defensive issue. If so, as the State concedes, appellant would be entitled to an instruction. Hayes v. State, 728 S.W.2d 804, 807 (Tex.Cr.App.1987). This would be so whether the evidence was strong or weak, and even if the only evidence raising the issue was the defendant’s testimony. Id. at 807.

*12 The evidence showed that appellant’s husband and children were murdered between around 7:00 p.m. and 8:27 p.m. Appellant testified that she left the apartment about 6:00 p.m., went to the place where she thought her insurance company was located, then went to her cousin’s house. Her cousin confirmed that appellant was at the house before they went to appellant’s apartment. Thus, appellant maintains that she was somewhere else when the murders must have occurred.

Appellant names two places where she could have been when the murders occurred. Her cousin confirms that appellant was at one of the places named. This is affirmative evidence of her presence elsewhere and we find that this constitutes a defensive issue. Our jurisprudence requires that the court instruct the jury as to the law of alibi if a defendant offers affirmative evidence of his or her presence elsewhere at the time the crime occurred.  Windham v. State, 162 Tex.Crim. 580, 288 S.W.2d 73, 76 (1956). Therefore, the court erred when it did not instruct the jury as to the law of alibi when requested to do so by appellant.

Because appellant requested a special charge on alibi the error in the charge is preserved for review. See Article 36.15, V.A.C.C.P. Reversal is required if the harm was “calculated to injure the rights of defendant,” Article 36.19, V.A.C.C.P., “which means no more than there must be some harm to the accused from the error.” Almanza v. State, 686 S.W.2d 157, 171 (Tex.Cr.App.1984).

Our review of the jury charge in appellant’s case shows that the jury was thoroughly charged on the State’s evidentiary burden. The pertinent part of the charge was as follows:

Now, if you believe from the evidence beyond a reasonable doubt that on or about the 7th day of April, 1987, in Harris County, Texas, the defendant, Frances Elaine Newton, did then and there unlawfully, intentionally or knowingly cause the death of Farrah Elaine Newton, by shooting Farrah Elaine Newton with a gun, and during the same criminal transaction, the defendant intentionally or knowingly caused the deaths of Adrian Newton and Alton Newton by shooting Adrian Newton and Alton Newton with a gun, then you will find the defendant guilty of capital murder as charged in the indictment.

Unless you so find and believe from the evidence beyond a reasonable doubt, or if you have a reasonable doubt thereof concerning any element of capital murder you will acquit the defendant of capital murder and next consider whether the defendant is guilty of the offense.

Quite plainly, the charge explains that the jury must find beyond a reasonable doubt that appellant committed every element of the alleged capital murder on the occasion in question and in Harris County, Texas. We fail to see how a charge on alibi would have contributed anything to explaining the State’s evidentiary burden that the given charge did not already supply. In other words, a charge on alibi would have been merely redundant. Therefore, failure to give such a charge caused appellant no harm. Point of error nineteen is overruled.

*13 In point of error twenty appellant maintains that the trial court committed reversible error by ordering appellant to stay within the record during jury argument. Counsel, in summing up testimony of the State’s forensic expert on the presence of nitrites on appellant’s skirt, noted that the chemist had testified that the presence of nitrites could be caused by gunpowder or fertilizer. Counsel then said: “There would be pretty good of a way [sic] to find out whether those are more probably gunpowder particles rather than fertilizer.” The State objected and the trial court then ordered counsel to stay within the record. Appellant argues that the trial court’s remark constitutes an impermissible comment on the evidence, that being the suggestion that there was no test to determine whether the nitrite particles originated from gunpowder or fertilizer. This in turn, appellant argues, was intended to convey to the jury the suggestion that the State’s forensic expert was more credible than appellant’s expert. We disagree. The record reflects that there was no testimony about the possibility of any test to determine whether a given amount of nitrite was from gunpowder or fertilizer. See footnote 4, infra. An attorney for the defense must confine his or her jury argument to the record; “reference to facts that are neither in evidence nor inferable from the evidence is improper.” Johnson v. State, 698 S.W.2d 154, 168 (Tex.Cr.App.1985), cert. denied 479 U.S. 871, 107 S.Ct. 239, 93 L.Ed.2d 164 (1986). Counsel’s attempt to suggest that there was a test to determine the difference in nitrite between gunpowder and fertilizer was an improper reference to facts neither in evidence nor, as we have determined from an examination of the testimony of both forensic experts who testified on the matter, inferable from the evidence in the record. Thus, there was nothing, in this regard, for the judge to comment on, and his action in admonishing counsel to stay within the record was entirely correct. Appellant’s twentieth point of error is overruled.

In points of error twenty-one, twenty-four, and twenty-five appellant contends that certain arguments of the State made to the jury constitute error. Point of error twenty-one is directed to the prosecutor’s statement, in reference to witness Sondra Nelms, “I think Sondra tried to be truth-.” Appellant’s counsel objected on grounds that the statement was a statement of the prosecutor’s opinion. The court overruled the objection. The prosecutor then said, “I think the evidence shows that Sondra tried to be truthful.” Counsel did not object to this comment. Appellant argues that the State was engaging in improper bolstering of its own witness. The State counters that its statement was a reasonable deduction from the evidence.

In order to be appropriate, jury argument must fall into one of four categories: summary of the evidence, reasonable deduction from the evidence, answer to argument of opposing counsel, or plea for law enforcement. Harris v. State, 784 S.W.2d 5, 12 (Tex.Cr.App.1989). The record in this case reveals that the issue of Sondra Nelms’ truthfulness had previously been broached by the appellant’s counsel in her argument to the jury. Counsel insisted that “if there is one truth-teller in this whole thing, it is Sondra Nelms.” Counsel then referred to certain testimony of Nelms which, if believed, contradicted testimony of the police officer who recovered the murder weapon. She then said that “it’s a choice of believing Sondra or Detective Talton.” Obviously, appellant was inviting the State to respond, which it did, when, after the complained-of statements, the prosecutor pointed out from the evidence how Nelms’ testimony was both consistent and inconsistent with the officer’s testimony and other facts in evidence. The State’s comment was both a reasonable deduction from the evidence and also a proper reply to an argument from opposing counsel. Thus, the trial court did not err in its ruling. Appellant’s twenty-first point of error is overruled.

*14 Point of error twenty-four concerns an argument by the State to the jury during the punishment phase. Dr. Charles Covert testified in response to a hypothetical that, in his opinion, appellant would constitute a continuing threat to society because of the probability that she would commit future acts of violence. The prosecutor asked Dr. Covert on what he based his opinion, and appellant’s counsel objected that the question called for speculation and conclusion. The court did not rule on the objection, and the prosecutor did not pursue the line of questioning. During appellant’s closing argument counsel told the jury that, with respect to Covert’s opinion, the doctor knew what his answer would be before he was asked the hypothetical question because “his mind was made up.” Appellant argued that the jury should give the doctor no credibility. In reply, the State argued that appellant had the opportunity to attack Covert’s credibility while he was on the stand but chose not to do so because the doctor’s forensic experience would have made him immune to an attack on credibility. The State pointed out that they had offered to put in evidence the doctor’s basis for his opinion. The prosecutor then said, “Mr. Mock’s response: I object. He didn’t want you to know what the doctor based it on. He didn’t touch that evidence.” Appellant objected but was overruled. Appellant argues that the State was going outside the record and the trial court should have sustained her objection. We disagree. The record clearly demonstrates that appellant’s attack on Covert’s credibility put in issue the basis for the doctor’s opinion and invited the State’s response. The State was properly allowed to reply to counsel’s argument. Point of error twenty-four is overruled.

In point of error twenty-five, appellant contends that the trial court erred by overruling her objection to another of the State’s arguments to the jury during the punishment phase of trial. The State, in arguing that the defendant was a future danger to society, said, “Then she [appellant] goes to her little boy. It’s reasonable to infer from the evidence that he heard the shot [that killed Adrian Newton]. ‘Mama, what is going on?’ That is, just lay on the bed there, son. ‘Mama, what is going on?’ ” Appellant’s counsel objected that this was outside the record. The objection was overruled. Appellant now argues that the trial court erred, but the State replies that the remarks are a reasonable inference from the evidence. We agree with the State. It is well settled that “counsel may draw from the facts in evidence all inferences that are reasonable, fair, and legitimate.” Allridge v. State, 762 S.W.2d 146, 156 (Tex.Cr.App.1988), cert. denied, 489 U.S. 1040, 109 S.Ct. 1176, 103 L.Ed.2d 238 (1989). It would be a fair inference that appellant shot her husband while he slept, and that her seven year old son heard the shot and wondered what was happening. We note that counsel specifically informed the jury that his argument was in the nature of a reasonable inference; thus, there was no danger that the prosecutor’s comments could have been interpreted by the jury as a statement of evidence in the record. Appellant’s twenty-fifth point of error is overruled.

*15 In point of error twenty-two, appellant complains that the trial court committed reversible error by denying her request to voir dire Dr. Charles Covert. Appellant argues that the trial court was required to grant her request pursuant to Tex.R.Crim.Ev. 705(b), which reads:

Rule 705. Disclosure of Facts or Data Underlying Expert Opinion


(b) Voir dire. Prior to the expert giving his opinion or disclosing the underlying facts or data, a party against whom the opinion is offered shall, upon request, be permitted to conduct a voir dire examination directed to the underlying facts or data upon which the opinion is based. This examination shall be conducted out of the hearing of the jury.

The record reveals that prior to the State putting on evidence during the punishment phase of appellant’s trial, appellant moved to voir dire Dr. Covert, a motion which was denied. The State put on two witnesses during punishment, the second of which was Dr. Covert. Although appellant asked for and was granted a running objection to his testimony, appellant did not re-urge her motion to voir dire the witness.

The State argues that appellant’s motion to voir dire the State’s expert was not timely, and we agree. Rule 705(b), upon which appellant relies, must be read in conjunction with subparagraph (a) of the same rule, which reads:

(a) Disclosure of facts or data. The expert may testify in terms of opinion or inference and give his reasons therefore without prior disclosure of the underlying facts or data, unless the court requires otherwise. The expert may in any event disclose on direct examination, or be required to disclose on cross-examination, the underlying facts or data, subject to subparagraphs (b) through (d).

Emphasis added.

We hold that Rule 705 gives discretion to the trial court to not require disclosure of an expert witness’ underlying testimony until just before the opinion is offered as evidence. At such time the party against whom the evidence is offered may request and shall be granted an opportunity to voir dire the witness as to data or facts upon which an opinion will be based. Thus, appellant’s motion to voir dire was premature and the court correctly denied it. Assuming, arguendo, that the court erred, we see no harm that appellant can claim. Appellant had every opportunity to request voir dire of the witness while the witness was testifying but did not do so. Further, the State offered to put into evidence the underlying bases for Covert’s opinion but appellant’s counsel specifically objected to the witness testifying to the matter. Appellant’s twenty-second point of error is overruled.

In point of error twenty-three, appellant maintains that she was deprived of a fair and impartial separate sentencing proceeding as a direct result of the State’s manifestly improper comment on appellant’s indication that she wished to exercise her right to remain silent as to psychiatric examination on the issue of future dangerousness. The alleged improper comment occurred in the context of appellant’s cross-examination of Dr. Covert and the State’s redirect examination. Appellant’s counsel asked Dr. Covert: “Dr. Covert, you never met Frances Newton before, did you?” The State, outside the presence of the jury, argued that, by asking that question, appellant had invited the State to elicit from Dr. Covert the fact that the State had offered appellant the opportunity to visit with Dr. Covert but she had refused. The prosecutor explained that he wished to dispel the impression that their expert had not made an attempt to talk to appellant, without improperly commenting on appellant’s right to remain silent by not talking to the psychiatrist. The court ruled that the State’s argument had not been invited by appellant. On redirect, the State asked Dr. Covert: “Did you request the opportunity to meet with defendant?” He answered, “Yes.” Appellant did not object and Dr. Covert was dismissed.

*16 The State contends that because there was no objection, she has preserved nothing for review. We agree. Without a timely, specific objection to bring to the attention of the trial court the relief appellant wanted, nothing is preserved. See Ransom v. State, 789 S.W.2d 572, 585 (Tex.Cr.App.1989). Appellant’s twenty-third point of error is overruled.

In point of error twenty-six appellant contends that she was deprived of a fair and impartial trial. In her brief appellant incorporates by reference her points of error sixteen, seventeen, and twenty-one through twenty-five. As we have already found these points to be without merit, nothing further is presented for review. In addition appellant refers us to the record and alleges that several instances of improper conduct by a witness, a juror, the trial court, and the State’s prosecuting attorney had the cumulative effect of depriving her of a fair trial. However, appellant advises us that these instances of improper conduct are not the subject of points of error. As none of them have been adequately briefed we find nothing before us to review. See generally Tex.R.App.P.Rule 74. Point of error twenty-six is without merit and is overruled.

In points of error twenty-seven and twenty-eight appellant maintains that the trial court committed error when it denied her original and amended motions for a new trial. Appellant’s motion, made pursuant to Tex.R.App.P.Rules 30 and 31, generally tracks the list of grounds in Rule 30(b), and, in addition, alleges constitutional and statutory violations. There are no affidavits which direct the court to any evidentiary basis for granting the motion. The motion was overruled by operation of law. See Tex.R.App.P.Rule 31(e)(1) and (3).

This being the case there was no evidence to support appellant’s claims. Motions for new trial are not self proving. [Citation omitted.] They must be supported by affidavits and the affidavits must be offered into evidence. [Citation omitted.] Since appellant failed to properly present [her] motion, we find no error in the trial court’s failure to grant it.

Lamb v. State, 680 S.W.2d 11, 13 (Tex.Cr.App.1984). Appellant’s amended motion for a new trial complains of several trial court rulings, accuses the trial judge of judicial misconduct, and alleges that exculpatory and impeachment evidence was withheld. Again, no supporting affidavits which direct the court to an evidentiary basis for granting the motion accompany the motion. This motion was also overruled by operation of law. We see no error, based on the authority cited supra. Appellant’s twenty-seventh and twenty-eighth points of error are overruled.

In her thirtieth point of error, appellant maintains that the evidence is insufficient to support the jury’s affirmative answer to the second special issue submitted to it during the penalty phase of her trial. The second special issue asks “whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society....” Article 37.071(b)(2), V.A.C.C.P.

*17 In resolving appellant’s contention we must look at all the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could find all of the elements of Article 37.071(b)(2) beyond a reasonable doubt. Black v. State, 816 S.W.2d 350, 352 (Tex.Cr.App.1991). “The jury is entitled to consider all the evidence admitted at both phases of trial when deliberating on the special issues.” Id., at 352.

During the punishment phase the State incorporated all of the evidence from the guilt/innocence phase. Additionally, the State put into the record evidence of two prior property crimes.8 Finally, a psychiatrist testified that, based on a hypothetical question which virtually replicated the State’s case, the appellant would be a future danger to society. The defense put on a number of witnesses who testified to the emotional and moral support they would give appellant if she were given life in prison.

Appellant argues that the State has not demonstrated that she has engaged in a pattern of violent conduct that would pose a future danger to society. However, the existence or non-existence of past violent conduct is only one factor a jury may consider in its resolution of the second special issue. Other factors include but are not limited to:

1. the circumstances of the capital offense, including the defendant’s state of mind and whether he or she was working alone or with other parties;

2. the calculated nature of the defendant’s acts;

3. the forethought and deliberateness exhibited by the crime’s execution;

4. the existence of a prior criminal record, and the severity of the prior crimes;

5. the defendant’s age and personal circumstances at the time of the offense;

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

7. psychiatric evidence; and

8. character evidence.

Black, at 355.

We hold that the circumstances of this offense and its calculated nature alone are more than enough evidence to convince a rational trier of fact that, beyond a reasonable doubt, appellant would be a continuing threat to society. Appellant took out insurance policies on her husband and one of her children. She took her boyfriend’s gun, went to her apartment, apparently waited until her husband went to sleep, and then shot him in the head. She then proceeded to murder both of her children. A more cold-blooded, calculated act of violence is difficult to imagine. The psychiatric testimony further supports this view of the evidence. Appellant’s thirtieth point of error is overruled.

Points of error thirty-one through thirty-seven are predicated on the trial court’s overruling of appellant’s pre-trial motions to prohibit the State from seeking the death penalty, challenging the validity of Article 37.071, V.A.C.C.P., and motion to strike the State’s notice to seek the death penalty. She claims reversible error in each instance.

*18 In point of error thirty-one appellant maintains that Article 37.071(e) which provides that an affirmative jury finding to the special issues requires the court to sentence the defendant to death, provides for the imposition of cruel and unusual punishment,9 particularly as applied to women. We understand appellant’s position to be that because of biological, natural, and practical differences, different capital punishment standards should be applied to women in certain circumstances. We note at the outset that appellant fails to illuminate us as to what are the different capital punishment standards that should apply to women or in what circumstances they should apply. We also note that the one authority to which appellant refers us is totally inapposite to appellant’s argument.10 Appellant can cite us to no authority, nor are we aware of any, which would compel the conclusion that the putting to death of a woman for the crime of capital murder is any more or less cruel and unusual than is the putting to death of a man for the same crime. Appellant’s thirty-first point of error is overruled.

In point of error thirty-two, appellant contends that the special issues submitted to the jury as required by the statute do not adequately insure against the arbitrary imposition of the death penalty. We disagree. This argument was explicitly rejected by the United States Supreme Court in Jurek v. Texas, 428 U.S. 262, 276, 96 S.Ct. 2950, 2958, 49 L.Ed.2d 929, 941 (1976). The Court in Jurek held that the Texas sentencing scheme guided the jury’s discretion by “narrowing the class of death eligible crimes and by requiring the jury to answer additional special issues regarding deliberateness, future dangerousness and provocation.” Barefield v. State, 784 S.W.2d 38, 45 (Tex.Cr.App.1989), cert. denied, 497 U.S. 1011, 110 S.Ct. 3256, 111 L.Ed.2d 766 (1990). Thus, the death penalty sentencing statute is facially valid.  See Penry v. Lynaugh, 492 U.S. 302, 315, 109 S.Ct. 2934, 2945, 106 L.Ed.2d 256, 276 (1989). Point of error thirty-two is overruled.

In point of error thirty-three, appellant complains that Article 37.071(g) deprived her of her due process rights under the Fourteenth Amendment of the United States Constitution. Article 37.071(g) provides that neither the court, the State’s attorney, nor the defendant’s attorney can inform a juror or prospective juror of the effect of the failure of the jury to agree on one of the special issues. It is appellant’s position that Article 37.071(g) impermissibly limits the jury’s consideration of relevant information which might cause it to decline to impose the death penalty. Appellant’s contention was rejected in Davis v. State, 782 S.W.2d 211 (Tex.Cr.App.1989), cert. denied, 495 U.S. 940, 110 S.Ct. 2193, 109 L.Ed.2d 520 (1989). In Davis we pointed out that informing the jury that failure to agree on one or more of the special issues results in the imposition of a life sentence is not relevant to answering those issues. Id. at 222. See also Sterling v. State, --- S.W.2d ---- (Tex.Cr.App. No. 70,829, April 22, 1992), slip op. at 12-13. The matter is a procedural one, and not the proper subject of an instruction by the trial court or comment by the litigants. Appellant’s thirty-third point of error is overruled.

*19 In point of error thirty-four appellant contends that we should not continue to “adhere to the proposition that the imposition of the death penalty is not unconstitutional because the discretion given the prosecutor.”  Barefield, 784 S.W.2d at 46. We decline to do so for the reasons set out in Barefield, supra, Jurek, supra, 96 S.Ct. at 2950, and Gregg v. Georgia, 428 U.S. 153, 199, 96 S.Ct. 2909, 2937, 49 L.Ed.2d 859, 889 (1976). Point of error thirty-four is overruled.

In point of error thirty-five, appellant argues that she was precluded from the opportunity to present mitigating evidence and that the jury was unable to give its reasoned, moral response to relevant mitigating evidence. As to appellant’s first contention, the record does not reflect any meaningful limitation on appellant’s ability to present mitigating evidence during either the guilt/innocence or punishment phase of her trial. Further, Article 37.071, V.A.C.C.P. does not prohibit presentation of mitigating evidence. Ex Parte Ellis, 810 S.W. 208, 212 (Tex.Cr.App.1991). As to the particular evidence she claims the jury could not give effect to within the compass of the special issues, she directs us to the following: appellant was young; a woman; an unwed mother before reaching her fifteenth birthday; embarrassed and hurt by her husband’s adulterous activities; married to a cocaine and marihuana user; cooperative with the authorities; churchgoing; and, a member of a large family whose father was a meatwrapper at a supermarket. In Penry, 492 U.S. at 328, 109 S.Ct. at 2952, 106 L.Ed.2d at 284, the United States Supreme Court found that, as applied to petitioner, our framework of special issues did not by themselves allow the jury to express its reasoned, moral response to Penry’s evidence of mental retardation and child abuse. In analyzing Penry-type issues we examine the particular evidence offered by appellant to determine if it is relevant to appellant’s personal or moral culpability and, if so, whether the jury was adequately able to respond to that evidence. See Goss v. State, 826 S.W.2d 162 (Tex.Cr.App.1992). We have previously held that age and religious activities are factors that can be considered within the ambit of the second special issue. See Lackey v. State, 816 S.W.2d 392, republished at 819 S.W.2d 111 (Tex.Cr.App.1991) (age); Boggess v. State, --- S.W.2d ---- (Tex.Cr.App. No. 69,990, May 29, 1991) (religious activities). Appellant’s hurt and embarrassment could be considered by the jury under special issue number one. Appellant’s cooperation with authorities is directly relevant to special issue two. The remaining factors relate to background and social history, and while this “is relevant to the concerns of special issue two, we conclude that the mitigating evidence in the instant case is otherwise irrelevant to an individualized assessment of the deathworthiness of appellant.” Lackey, at 134. “Certainly, the mitigating evidence raised by Appellant was not of the same character or quality as that in Penry. Goss, at 166. We find that a rational trier of fact could give full effect to all of appellant’s allegedly mitigating evidence through the two issues submitted. Appellant’s thirty-fifth point of error is overruled.

*20 In point of error thirty-six appellant contends that we should not continue to adhere to the proposition that a judge need not define “deliberately.” First, appellant did not object to the jury charge at the punishment phase, and, thus, no error is preserved for review. However, even assuming a proper objection, we have long held that such a definition is not necessary. Lewis v. State, 815 S.W.2d 560, 563 (Tex.Cr.App.1991). Appellant also maintains that the evidence is insufficient to support the jury’s determination that the appellant acted deliberately. We disagree. Our review of the record convinces us that any rational trier of fact could have found that appellant acted deliberately in murdering her husband and two children. Point of error thirty-six is overruled.

In point of error thirty-seven appellant maintains that the use of the term “probability” in the second special issue unconstitutionally allows the jury to answer that issue on evidence less than beyond a reasonable doubt. We disagree. Appellant’s precise contention was rejected by this court in Sosa v. State, 769 S.W.2d 909, 916-17 (Tex.Cr.App.1989), where we found it inconsistent with the very language of Article 37.071(c), which requires the jury to answer each of the special issues beyond a reasonable doubt. Point of error thirty-seven is overruled.

The judgment and sentence are affirmed.

CLINTON, J., concurs in the result.

BAIRD, J., dissents.

MALONEY, J., not participating.



In Geesa, supra, we rejected use of the analytical construct for questions of circumstantial evidentiary sufficiency, and overruled Carlsen, supra, and related cases on this issue.



Statement of Facts, Vol. 33, p. 900.



Appellant’s brief, p. 84.



During trial a forensic expert testified that the only other substance which would be consistent with the presence of nitrites would be fertilizer. Appellant’s counsel attempted to show that appellant could have gotten fertilizer on her skirt from handling her child, who could have come into contact with dirt from her uncle’s garden. However, the only witness on this issue was unable to testify that fertilizer was indeed present in the garden.



Section 19.06 provides:

In all prosecutions for murder or voluntary manslaughter, the state or the defendant shall be permitted to offer testimony as to all relevant facts and circumstances surrounding the killing and the previous relationship existing between the accused and the deceased, together with all relevant facts and circumstances going to show the condition of the mind of the accused at the time of the offense.



Tex. Const. Art. I, sec. 10; Articles 1.05 and 1.25, V.A.C.C.P.



Appellant also suggests that the comment was calculated to inflame the minds of the jury and resulted in obvious harm to her. Appellant did not make this objection at trial. “Error on appeal must be the same raised at trial.” Buxton v. State, 699 S.W.2d 212, 217 (Tex.Cr.App.1985). This argument is not preserved for review.



Misdemeanor theft and forgery.



Although appellant does not direct us to either the relevant State or federal constitutional provisions, we assume, based on point of error thirty-two, that she intends to implicate the Eighth Amendment of the United States Constitution.



Commonwealth v. Daniel, 430 Pa. 642, 243 A.2d 400 (1968), concerns a Pennsylvania sentencing statute which that State’s Supreme Court held unconstitutional on equal protection grounds because it manifestly provided for arbitrary, unreasonable treatment of women as opposed to men.


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