Appellant was convicted of capital murder, ⁽¹⁾ the jury answered the future dangerousness issue affirmatively, ⁽²⁾ and the trial judge sentenced appellant to death. Direct appeal to this Court is automatic. ⁽³⁾ Appellant raises twenty-four points of error. We will affirm.

In points of error one through six, appellant complains about a non-recorded oral statement he made to the police concerning the location of the victim's body. In points seven through twelve, he complains about a videotaped confession. He alleges violations of Articles 38.21, 38.22, 38.23, Miranda v. Arizona, ⁽⁴⁾ the Fifth and Sixth Amendments to the United States Constitution, and counterpart provisions in the Texas Constitution. We consider only the Miranda issue because appellant has failed to present argument or authorities in support of the other allegations in these points of error. ⁽⁵⁾

In reviewing claims of Miranda violations, we conduct the bifurcated review articulated in Guzman v. State. ⁽⁶⁾ We afford almost total deference to the trial court's rulings on questions of historical fact and on application of law to fact questions that turn upon credibility and demeanor while we review de novo the trial court's rulings on application of law to fact questions that do not turn upon credibility and demeanor. ⁽⁷⁾

Monica Allen and appellant dated for awhile but had a stormy relationship. Allen had a two-year-old daughter, Dominique Frome, from a prior relationship. Appellant had lived with Allen at various times in Salt Lake City, Utah and in Houston, Texas. At the time of the events giving rise to this prosecution, they were living apart, with appellant in Houston and Allen in Salt Lake City. On December 22, 1997, a young woman's body was found by the side of a roadway near Monticello, Utah. The body was not identified at that time. On December 30^th, a missing persons report was filed on Allen and her daughter. The FBI and the Salt Lake City Police Department (SLCPD) began an investigation of the disappearances. Detective Kelly Kent of the SLCPD was one of the officers assigned to investigate. On January 15, 1998, the body found in Utah was identified as Allen's.

The following day, Special Agent Gary Steger, with the Houston Division of the FBI, contacted appellant at his apartment in Houston. Steger and another FBI agent introduced themselves and told appellant that they were investigating the disappearance of Allen and her child. They talked with appellant, received his permission to search the apartment, and conducted a search that revealed nothing of importance to the investigation. Special Agent Steger did see a crack pipe in the apartment. That same day, appellant called Detective Kent, with whom he had past dealings. Appellant told Kent that he, Allen, and Dominique had left Salt Lake City together but parted ways at St. George, Utah on December 21^st. Appellant called Kent again on January 19^th. This time he told her that he had taken Dominique to Houston and that a friend had taken her to Mexico.

On January 20^th, appellant called Kent and told her that he had been in contact with the FBI and he believed that they were following him. That same day, the FBI searched appellant's apartment pursuant to a federal search warrant. Appellant told Special Agent Steger the revised story of taking Dominique to Houston and a friend taking her to Mexico. Appellant said that he had used Allen's van to drive from Salt Lake City to Houston, and he told FBI agents where the van was located. The van was seized by the FBI and Special Agent Steger returned appellant to his apartment.

On January 22^nd, appellant was arrested by federal agents. Special Agent Eric Johnson read appellant his Miranda warnings and transported him to the Houston FBI office. Johnson testified that he did not threaten appellant or make any promises. Johnson denied that appellant was disoriented during this time period. During a pat-down search of appellant, Johnson discovered some phone cords and a necktie. During transit, appellant told officers that he should have made them kill him.

Appellant was turned over to Special Agent Steger at the Houston FBI office. Steger noticed that appellant had some scratches on his face and an injury to his wrist. The wrist injury consisted of a one-sixth of an inch deep slash across the wrist. Appellant told Steger that he had tried to slit his wrists the night before. Steger took appellant to a nurse for medical treatment. Afterwards, appellant was placed in an interrogation room for questioning. Also present in the interrogation room were Special Agent Steger, Detective Kent, and Charles Oliver, a homicide investigator for SLCPD. Steger read the Miranda warnings. Oliver testified that Steger read each warning individually, and after each one, Steger asked appellant if he understood his rights. Appellant appeared to understand his rights and appeared to knowingly, intelligently, and voluntarily waive the rights. Oliver further testified that appellant did not appear to be under the influence of drugs or alcohol. When asked questions, appellant responded coherently and appropriately. After warnings were read and rights waived, Detective Kent interviewed appellant.

Kent also testified that appellant appeared to understand the warnings. Kent observed that appellant read the waiver of rights form aloud and that appellant appeared to voluntarily, knowingly, and intelligently waive his rights. No promises, threats, or abuse of any kind occurred before or during the interrogation. According to Kent, appellant did not appear to be under the influence of drugs or alcohol, he appeared to understand what was going on, and when asked questions, he responded appropriately. This first interview by Kent was not electronically recorded. During the interview appellant admitted to killing both Allen and Dominique. Appellant related that, on December 24^th, he killed Dominique, put her body in a suitcase, and buried the suitcase in an undeveloped area near the Sheldon Reservoir in northeast Harris County.

Appellant agreed to help locate Dominique's body. He went with law enforcement agents to the area he described and they attempted to find the victim's body. But the terrain was swampy and covered with underbrush, and appellant exhibited confusion about the body's location. Several law enforcement agents testified that they believed appellant was honestly trying to help locate the body but was unsuccessful. Appellant informed officers that the body could be further up the same road about a half mile.

After this failed attempt to find the child's body, Steger took appellant to the homicide division of the Houston Police Department. Appellant was placed in an interview room with Detective Kent and Houston Police Officer Robert King. King testified that he read appellant the required warnings and appellant nodded his head after each individual warning was read. Both King and Kent testified that appellant appeared to understand his rights and appeared to waive those rights voluntarily. Kent then conducted a videotaped interrogation of appellant. Kent and King both testified that appellant did not appear to be under the influence of drugs or alcohol during the interrogation and that appellant responded appropriately to questions. During the interrogation appellant again described how he killed Allen and Dominique and again described how he disposed of Dominique's body. Appellant also stated that he had used cocaine extensively up to and just prior to arrest, that he had recently attempted suicide by trying to slit his wrists, and that he had tried to kill himself by taking an overdose of pills shortly before his arrest. After the taping ended, appellant was shown a map, and he pointed out the area on the map where Dominique's body was located.

On January 23^rd, armed with this information, law enforcement agents found Dominique's body. That same day, appellant submitted physical samples for toxicological testing, which later revealed the presence of cocaine in appellant's system.

At a hearing on appellant's motion to suppress evidence, appellant presented expert testimony from Dr. Paula Lundberg-Love that a combination of stressful conditions, bipolar mental disorder, and cocaine binging rendered appellant incompetent to understand and waive his rights.

After hearing the evidence, the trial court found that appellant had knowingly, intelligently, and voluntarily waived his rights. The trial court held the complained-of statements to be admissible.

An inquiry into the waiver of Miranda rights "has two distinct dimensions." ⁽⁸⁾ First, the waiver must be "voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception." ⁽⁹⁾ Second, the waiver must be made "with a full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it." ⁽¹⁰⁾ As to the voluntariness issue, appellant does not contend, and the record does not show, that law enforcement agents coerced appellant in any manner. "[T]he Fifth Amendment privilege is not concerned 'with moral and psychological pressures to confess emanating from sources other than official coercion.'" ⁽¹¹⁾ If appellant's cocaine use and mental disorders alone impelled him to confess, that is of no constitutional consequence.

However, these factors are relevant to the second issue: whether he was aware of his rights and of the consequences of waiver. But such factors do not automatically determine the issue. Intoxication, for example, is but one relevant factor to consider in determining whether an accused understood his rights. ⁽¹²⁾ On the record before us, the trial court was clearly within its discretion in finding that appellant understood his rights and the effect of waiving those rights. Various law enforcement officials testified that appellant appeared to comprehend the warnings and the questions asked during interrogation, that appellant was coherent and gave appropriate answers to questions, and that appellant did not appear to be intoxicated by alcohol or under the influence of any drugs. Although appellant presented expert testimony that conflicted with that of the State's witnesses, the trial court was entitled to believe the State's witnesses rather than appellant's expert. Points of error one through twelve are overruled.

In points of error thirteen and fourteen, appellant contends that the trial court erred in admitting into evidence the testimony of two jail psychiatrists who interviewed appellant while he was in custody. Appellant argues that, because he was given no Miranda warnings before the interviews and because counsel was not notified that the interviews would occur, admitting the psychiatric testimony was a violation of his Fifth Amendment right against self-incrimination and his Sixth Amendment right to counsel under Estelle v. Smith. ⁽¹³⁾

The following colloquy occurred at trial:

[DEFENSE]: It's my understanding they are going to bring a doctor from the jail who examined Mr. Ripkowski while he was in custody without the benefit of warnings - unless I'm mistaken about that. We would object to his testimony as a violation of Mr. Ripkowski's Fifth and Sixth Amendment rights, as well as on State constitutional grounds, and it's a violation of Estelle vs. Smith for them to conduct an in-custody psychological interview without the benefit of warnings. That's our argument.

[PROSECUTION]: He requested the treatment. It was not at our request; it was at his request when he first came into the jail. It was a doctor, not the expert for the State. I won't go into any questions regarding the offense.

[DEFENSE]: I accept completely the way she represents it. We still think it's covered by Estelle vs. Smith and would be a Fifth and Sixth Amendment violation, and we make that objection.

(Emphasis added).

In Smith, the trial judge ordered a psychiatric examination of the defendant to determine whether he was competent to stand trial. ⁽¹⁴⁾ The defendant was in custody at the time. ⁽¹⁵⁾ As a witness for the State in the punishment phase of trial, the psychiatrist expressed opinions tending to show that the defendant was a future danger to society. ⁽¹⁶⁾ The Supreme Court held that the testimony violated the defendant's Fifth Amendment right against self-incrimination because he was not given Miranda warnings before he made statements in the interview that were ultimately used by the psychiatrist to form opinions about the defendant's future dangerousness. ⁽¹⁷⁾ The Court also found a violation of the Sixth Amendment's right to counsel because criminal proceedings had already been initiated by indictment, the defendant was represented by an attorney, and defense counsel was not notified that the psychiatric interview would encompass the issue of the defendant's future dangerousness. ⁽¹⁸⁾

However, in Buchanan v. Kentucky, ⁽¹⁹⁾ the Supreme Court recognized limits to its holding in Smith. As in Smith, the interview in Buchanan was conducted without giving Miranda warnings to the defendant. But Buchanan presented three crucial distinguishing factors: (1) defense counsel had requested the psychiatric examination pursuant to Kentucky's involuntary hospitalization procedure, (2) the entire defense strategy revolved around establishing a mental status defense of extreme emotional disturbance, and (3) the State introduced the psychiatric testimony for the limited purpose of rebutting the defendant's mental status defense. ⁽²⁰⁾ Under these circumstances, the Supreme Court found that there was no Fifth or Sixth Amendment violation. ⁽²¹⁾

The facts in the present case are similar to those in Buchanan. The interviews with jail psychiatrists occurred because appellant requested treatment. At the guilt-innocence phase of trial, appellant offered expert testimony from Dr. Lundberg-Love that appellant suffered from bipolar disorder. She based her opinion on a sixteen-hour personal interview of appellant, standardized psychological testing, a review of appellant's medical records, and a review of appellant's videotaped confession. This testimony was introduced to support appellant's contention that his oral statements were obtained without a knowing, intelligent, and voluntary waiver of his Miranda rights - an issue that was submitted to the jury. In response to appellant's expert testimony, the State presented testimony from the jail psychiatrists outlining their opinions that appellant did not suffer from bipolar disorder and the reasons behind those opinions. The State's proposed testimony was limited in scope, as evidenced by the prosecutor's statement that she would not "go into any questions regarding the offense."

Buchanan resolves appellant's Fifth Amendment claim. Appellant initiated the contact with the jail psychiatrists and his discussions with them were a necessary part of determining whether he needed treatment. The State introduced the testimony for the limited purpose of countering appellant's expert testimony, which was based in part on a personal interview of appellant. Appellant cannot now use his silence to "deprive the State of the only effective means it has of controverting his proof on an issue that he interjected into the case." ⁽²²⁾

As for appellant's Sixth Amendment claim, he failed to properly preserve the issue for review. Although appellant cited the Sixth Amendment and Smith, the only reason he gave for the impropriety of the testimony was the failure to give warnings. In Smith, the violation of the Sixth Amendment's right to counsel turned upon the State's failure to inform defense counsel regarding one of the topics of the examination. ⁽²³⁾ So, while appellant had specifically articulated the basis for his Fifth Amendment Smith claim (the absence of warnings), he failed to articulate the basis for a Sixth Amendment Smith claim (failure to inform counsel of the existence and/or subject of the interview). The trial court was not placed on notice that appellant was alleging a Sixth Amendment violation distinct from the failure to give warnings, and in fact, counsel's statement could be taken to mean that the failure to give warnings was the only argument being advanced. Because the Sixth Amendment claim was not articulated "with sufficient specificity to make the trial court aware of the complaint," the Sixth Amendment aspect of Smith was procedurally defaulted. ⁽²⁴⁾

Even if it had been preserved, however, appellant's Sixth Amendment claim would fail. The only fact distinguishing this case from Buchanan is that appellant personally sought out psychiatric services instead of counsel seeking the examination on his behalf. Although it is generally more difficult to waive a Sixth Amendment right to counsel than to waive a Fifth Amendment right to remain silent, defendants are not precluded altogether from waiving the Sixth Amendment right to counsel on their own (i.e. without consulting counsel):

A defendant's right to rely on counsel as a "medium" between the defendant and the State attaches upon the initiation of formal charges [citation omitted] and respondent's contention that a defendant cannot execute a valid waiver of the right to counsel without first speaking to an attorney is foreclosed by our decision in Patterson. Moreover, respondent's view would render the prophylactic rule adopted in Jackson wholly unnecessary, because even waivers given during defendant-initiated conversations would be per se involuntary or otherwise invalid, unless counsel were first notified. Although a defendant may sometimes later regret his decision to speak with police, the Sixth Amendment does not disable a criminal defendant from exercising his free will. To hold that a defendant is inherently incapable of relinquishing his right to counsel once it is invoked would be "to imprison a man in his privileges and call it the Constitution" [citation omitted]. ⁽²⁵⁾

Here, appellant effectively relinquished his counsel's assistance by seeking out mental health treatment on his own. Appellant has not alleged that he was ever denied the opportunity to consult with counsel before he sought such treatment. And appellant's claim is undermined by the fact that the evidence was used for impeachment, rather than in the State's case-in-chief. The Supreme Court has recognized that some rules designed to enforce the Sixth Amendment right to counsel do not apply to impeachment evidence. ⁽²⁶⁾

Appellant contends, however, that the State reoffered this evidence at the punishment phase of trial to support a finding of future dangerousness. Assuming arguendo that consideration of this psychiatric testimony in the punishment phase of trial created some sort of Fifth or Sixth Amendment problem, the burden was upon appellant to timely request an appropriate limiting instruction. ⁽²⁷⁾ Appellant did not request a limiting instruction at the time the trial court admitted the evidence, nor did he request one during the punishment phase at the time the State reoffered all the guilt phase evidence. Points of error thirteen and fourteen are overruled.

In points of error fifteen through eighteen, appellant complains about his waiver of the mitigation special issue. ⁽²⁸⁾ At the beginning of the punishment phase of trial, defense counsel complained to the trial court that his client was placed in an unfair position by being required to choose between the admission of victim impact evidence and the submission of the mitigation special issue. He requested that the trial court hold the "statute" (presumably referring to Article 37.071) unconstitutional, but the trial court denied this request. Defense counsel then told the trial court that the State had informed him of its intent to use victim impact testimony. Defense counsel further stated that it was his understanding that the trial court would be permitting this testimony, and the trial court confirmed his understanding to be correct. Defense counsel and appellant then requested that appellant be permitted to waive the mitigation special issue:

MR. MORROW: Based on that then, Your Honor, and after counseling with Mr. Ripkowski and his family, it is our decision on his behalf to waive the mitigation special issue so that the victim impact testimony would no longer be admissible.

THE COURT: Mr. Ripkowski, you heard Mr. Morrow, your lawyer, make that statement in the record. Do you agree?

MR. RIPKOWSKI: Yes, sir.

THE COURT: Do you wish to affirmatively waive and give up the right to have the issue of mitigation presented to the jury?

MR. RIPKOWSKI: Yes, sir.

THE COURT: You understand if you do that, they will have just the one issue left, and that would be what we call the future dangerousness issue, and then if they answer that in the affirmative, then the Court would assess your punishment at death. Do you understand that?

MR. RIPKOWSKI: Yes, sir.

THE COURT: Knowing all of this, has anyone promised you anything or threatened you to do it this way?

MR. RIPKOWSKI: No, sir.

THE COURT: And, that's what you want to do, is to give up any right to have the issue of mitigation presented to the jury?

MR. RIPKOWSKI: Yes, sir.

As a result of this colloquy, the mitigation issue was not submitted in the punishment charge, and the State was not permitted to introduce victim impact testimony.

Appellant now contends that the trial court erred in denying his challenge to the constitutionality of Article 37.071. He contends that the statute, as interpreted by our decision in Mosley v. State, ⁽²⁹⁾ nullifies the Supreme Court's decision in Penry v. Lynaugh ⁽³⁰⁾ by forcing the defendant to choose between the mitigation issue and victim impact testimony. Alternatively, appellant contends that Tong v. State ⁽³¹⁾ retracted the rule permitting waiver of the mitigation special issue, and hence appellant's waiver was invalid. In addition, appellant claims that trial counsel was rendered ineffective because either (1) he was forced to choose between two detrimental actions, or (2) the inability to waive the issue means that counsel conveyed incorrect sentencing information to the defendant.

The first difficulty appellant's claims face is the estoppel rule recognized in Prystash v. State. ⁽³²⁾ In Prystash, the defense asked the trial court not to submit the anti-parties special issue. ⁽³³⁾ We held that the defendant was estopped from complaining on appeal about the absence of the issue - regardless of whether the issue was waivable. ⁽³⁴⁾ We reasoned that a crucial distinction exists between the concepts of "waiver" and "invited error": "The question was not whether [appellant] could waive a right, it was whether he could complain of an action he requested." ⁽³⁵⁾ We held that the definition of what can constitute error "excludes those actions of the trial court actually sought by the party to that tribunal." ⁽³⁶⁾ Although Mosley distinguished Powell v. State ⁽³⁷⁾ by emphasizing the differences between the deliberateness and mitigation special issues, ⁽³⁸⁾ Prystash subsequently overruled Powell by holding that a party could estop himself from complaining about the failure to submit any issue, regardless of the nature of the issue involved. ⁽³⁹⁾ Thus, Prystash's holding goes beyond Mosley in barring a defendant from complaining on appeal when he has procured the absence of a special issue. Even if Mosley's dicta on waiving the mitigation issue were completely disavowed, Prystash would still stand as a bar to relief in this case. Because appellant requested that the mitigation issue be omitted, he cannot now complain about the trial court's alleged lack of authority to withdraw the issue from the jury's consideration.