a/k/a RAFAEL RESENDEZ-RAMIREZ

On May 18, 2000, appellant was convicted of capital murder. Tex. Penal Code Ann. § 19.03(a). Pursuant to the jury's answers to the special issues set forth in Texas Code of Criminal Procedure Article 37.071, sections 2(b) and 2(e), the trial judge sentenced appellant to death. Art. 37.071 § 2(g). ⁽¹⁾ Direct appeal to this Court is automatic. Art. 37.071 § 2(h). Appellant raises sixteen points of error. We affirm.

In his third point of error, appellant claims the evidence is insufficient to support the jury's finding that he would be a continuing threat to society. In reviewing the sufficiency of the evidence at punishment, this Court looks at the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have concluded beyond a reasonable doubt that appellant would probably commit criminal acts of violence that would constitute a continuing threat to society. See Jackson v. Virginia, 443 U.S. 307 (1979); Allridge v. State, 850 S.W.2d 471, 487 (Tex. Crim. App. 1991), cert. denied, 510 U.S. 831 (1993).

Appellant was convicted of the capital murder of Dr. Claudia Benton. The State presented evidence that in December of 1998, appellant unlawfully entered Benton's home and brutally stabbed her to death. Additional evidence showed that appellant attempted to sexually assault Benton.

At punishment, the jury heard evidence of numerous other murders committed by appellant. Holly Dunn testified that in August of 1997, appellant approached her and Christopher Maier near some railroad tracks in Lexington, Kentucky. Appellant robbed Dunn and Maier. He then bound Maier's hands and feet and gagged him. Appellant picked up a large object and beat Maier in the head with it, crushing his skull. After murdering Maier, appellant sexually assaulted Dunn. He then hit her in the head with a large object and left the scene. Dunn survived, but suffered multiple facial fractures and the trauma of the sexual assault.

In October of 1998, appellant unlawfully entered the home of 87-year-old Leafie Mason in Hughes Springs, Texas. Appellant killed Mason by hitting her in the head with an iron. In May of 1999, appellant traveled to Weimar, Texas, and beat Skip and Karen Sirnic to death with a sledge hammer while they slept in their home. He also sexually assaulted Karen Sirnic. In June of 1999, appellant unlawfully entered Noemi Dominguez's home, sexually assaulted her, and killed her with a pickax. Appellant stole Dominguez's car and traveled to Schulenberg, Texas, where he killed 73-year-old Josephine Konvicka with the same pickax used on Dominguez. Appellant left the pickax embedded in Konvicka's head. Also in June of 1999, appellant unlawfully entered 80-year-old George Morber's home in Gorham, Illinois. Morber's daughter, Carolyn Frederick, was with Morber when appellant broke in. Appellant tied Morber to a chair and shot him in the back of the head with a shotgun. Appellant then sexually assaulted Frederick and struck her in the head with the shotgun with such force that the shotgun broke into two pieces. Neither Morber nor Frederick survived.

The facts of the instant case and appellant's history permit a rational juror to conclude that appellant would continue to be a threat to society. Accordingly, we hold the evidence legally sufficient to support the jury's affirmative answer to the future dangerousness issue. Jackson, 443 U.S. 307; Allridge, 850 S.W.2d at 487. Appellant's third point of error is overruled.

In his first point of error, appellant claims he was denied a fair trial when the trial court refused to admit crime scene photographs relating to extraneous offenses committed by appellant. In his second point of error, appellant argues the trial court abused its discretion in excluding the photographs because the probative value of the photographs was not outweighed by "any valid justification."

At the guilt phase of trial, Dr. Bruce Cohen testified for the defense that he believed appellant was insane at the time he committed the capital murder in this case. He testified that he relied on various interviews, letters, records, and reports, as well as crime scene photographs of six other murders committed by appellant in forming his opinion. On direct examination, Cohen was shown the crime scene photographs and was asked to describe to the jury what the photographs depicted. The defense then offered the photographs into evidence. The State objected pursuant to Rule of Evidence 705(d) that the photographs were not relevant simply because Cohen relied upon them to form his opinion. Specifically, the State argued that the photographs were not relevant because the question in this case was whether appellant was insane at the time he committed Benton's murder, not the murders depicted in the photographs. The trial court sustained the State's objection.

This Court reviews the trial court's ruling under an abuse of discretion standard and will not reverse the trial court's ruling unless it falls outside the zone of reasonable disagreement. Salazar v. State, 38 S.W.3d 141, 151 (Tex. Crim. App.), cert. denied, 534 U.S. 855 (2001); Moreno v. State, 22 S.W.3d 482, 487 (Tex. Crim. App. 1999). Rule 705(d) instructs that when the underlying facts or data used by an expert to form his opinion are inadmissible, the court shall exclude the underlying facts or data if the danger that they will be used "for a purpose other than as explanation or support for the expert's opinion outweighs their value as explanation or support or are unfairly prejudicial." Tex. R. Evid. 705(d).

When the trial judge ruled the photographs inadmissible, he stated, "To see the photographs will not be any assistance to the jury, so I'm going to sustain the objection."

Later in the guilt phase of trial, the defense attempted to admit the photographs again. The trial court sustained the State's objection and related that, "the only purpose for which they [the jurors] could consider the photographs was for the purpose of assessing the validity of the doctor's opinions and, quite frankly, they might consider it for, uhm, other purposes."

The trial court ruled that the crime scene photos were not relevant because they did not depict the crime scene where Benton was killed, thus they were inadmissible. Tex. R. Evid. 402. The court then conducted the balancing test for inadmissible evidence under Rule 705(d) and determined that the photographs could have been used for improper purposes. The court also gave an alternative theory for excluding the photographs, even if they were relevant, stating: "But relevant evidence may still be excluded by the court under Rule 403. If, uhm, it's, you know, cumulative, you know, needless delay, confusion of the issues, and basically it's under that rule as well."

Under Rule 401, evidence is relevant if it has the tendency to make the existence of any fact that is of consequence to the determination of the case more or less probable than it would be without the evidence. The photographs in this case were relevant because they go to the issue of appellant's sanity. Viewing multiple photographs of various crime scenes may make the jury more likely to find that no "normal" person could commit such gruesome acts, and thus find that appellant is mentally ill or "crazy." However, as stated by the trial court, under Rule 403, relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence. Evidence may confuse or mislead the jury if it distracts the jury from the main issues in the case or tends to focus the jury's attention on facts tangential to the case before them. The photographs in question were likely to distract the jury from the facts of the crime charged and focus their attention on other crime scenes. While the photographs were relevant to the issue of appellant's sanity, merely viewing the photographs would not necessarily prove that appellant was legally insane, therefore their probative value was limited. Additionally, viewing the other crime scenes may have led to confusion regarding the difference between appellant being "crazy" and the issue of legal insanity as defined in Texas Penal Code Section 8.01. ⁽²⁾ While gruesome and shocking photographs depicting other crime scenes may convince the jury that appellant has committed acts unthinkable to most "normal" people, this does not mean that, at the time of the Benton offense, appellant did not know that his conduct was wrong as required under Section 8.01(a). Additionally, Section 8.01(b) specifically states that abnormality manifested by repeated criminal conduct, such as the multiple murders depicted in the photographs, is not to be considered a mental disease or defect that negates the responsibility of appellant for the charged offense.

Because the danger that the photographs would confuse or mislead the jury outweighs their probative value, the trial court did not abuse its discretion in excluding these particular photographs. The trial court's alternative theory for the exclusion of the photographs under Rule 403 was correct. Appellant's first and second points of error are overruled.

In his fourth point of error, appellant contends the future dangerousness special issue was unconstitutional because that issue was not susceptible to proof beyond a reasonable doubt. In other words, appellant argues that in the capital punishment context, jurors apply a higher standard than proof beyond a reasonable doubt because they will tolerate virtually no risk in assessing future danger.

The jury was properly instructed on the burden of proof beyond a reasonable doubt. We presume the jury follows the trial court's instructions. Colburn v. State, 966 S.W.2d 511, 520 (Tex. Crim. App. 1998). Appellant presents no evidence to rebut this presumption. Appellant's fourth point of error is overruled.

In his fifth point of error, appellant argues that the trial court's failure to provide a definition of 'society' in the special issue on future dangerousness resulted in appellant's death sentence in violation of the Eighth and Fourteenth Amendments of the United States Constitution. We have previously rejected this argument. McDuff v. State, 939 S.W.2d 607, 620 (Tex. Crim. App.), cert. denied, 522 U.S. 844 (1997). Appellant's fifth point of error is overruled.

In his sixth point of error, appellant claims the trial court erred in admitting the expert testimony of FBI Special Agent Alan Brantley because his testimony was not shown to be reliable. Appellant did not object to the reliability of Brantley's testimony at trial. Therefore, he has not preserved error for our review. Tex. R. App. P. 33.1.

Appellant also contends that Brantley's testimony should not have been admitted because it was not relevant. Appellant made a relevancy objection at trial. Evidence is "relevant" if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Tex. R. Evid. 401. We review the trial court's decision to admit evidence under an abuse of discretion standard. Salazar, 38 S.W.3d at 151; Moreno, 22 S.W.3d at 487. We will reverse the trial judge's decision only if it is outside the zone of reasonable disagreement. Id.

The State called Brantley to rebut appellant's insanity defense. Brantley testified that in June of 1999, he was contacted by the Houston Division of the FBI to consult with FBI agents, local police officers, and state law enforcement officials regarding this case. He visited several crime scenes in Texas which were later connected to appellant. He also reviewed appellant's medical records, witness statements, letters written by appellant, and interviews with law enforcement. Based on these documents, his tour of the crime scenes, his education as a clinical psychologist, and his many years of experience, Brantley formed the opinion that appellant is an "organized sexual serial killer" who is "geographically mobile." Brantley described an organized sexual serial killer as an offender who committed "well-planned, well-orchestrated" multiple murders with a sexual element. In this case, appellant displayed the characteristics of an organized sexual serial killer by committing murders at night, using rear locations to enter homes, committing murders near railroad tracks, and selecting random victims. He displayed the characteristics of a geographically mobile offender by traveling nationally and internationally. Brantley testified that all of those characteristics demonstrated an effort to elude law enforcement. Brantley related that as a geographically mobile organized sexual serial killer, appellant displayed criminal sophistication rather than psychotic behavior.

Brantley's testimony was relevant to rebut appellant's defensive theory of insanity. As such, the trial court did not abuse its discretion in admitting the testimony.

Appellant argues further that even if Brantley's testimony was relevant, it should not have been admitted at trial because any probative value of the testimony was substantially outweighed by unfair prejudice pursuant to Texas Rule of Evidence 403. At trial, appellant made only one Rule 403 objection to Brantley's testimony:

[THE STATE]: Is there any - is the fact that the type of people that became victims of his crimes any indication about trying to avoid detection?

[BRANTLEY]: Well, that's another classic, uhm, example or element of the organized offender. They select victims that are strangers, so this random victim selection is intent on eluding law enforcement authority better, because when you consider basic law enforcement homicide investigative techniques they generally start with the victim's inner circle of friends, family, and associates in an attempt to develop a suspect pool, if you will.

[THE DEFENSE]: Excuse me, sir. At this time, judge, we're going to object to this. It's speculative and irrelevant to this case at hand.

[THE COURT]: Overruled.

[THE DEFENSE]: And, for the record, judge, we object. If the court believes it relevant, that its prejudicial value outweighs any probative value, and that our further objection is that none of this is from this witness's personal knowledge.

[THE COURT]: Overruled.

Appellant objected only to Brantley's testimony regarding the random selection of victims. On appeal, however, appellant argues that Brantley's testimony was unfairly prejudicial because profile evidence is inherently unreliable and because Brantley did not interview appellant. ⁽³⁾ Appellant's trial objection does not comport with the claim he now raises. Tex. R. App. P. 33.1; Ibarra v. State, 11 S.W.3d 189, 197 (Tex. Crim. App. 1999), cert. denied, 531 U.S. 828 (2000). Appellant's sixth point of error is overruled.

In his seventh, eleventh, and twelfth points of error, appellant claims he received ineffective assistance of counsel. In order to prevail on a claim of ineffective assistance of counsel, appellant must satisfy the two-prong test set forth in Strickland v. Washington, 466 U.S. 668 (1984). Specifically, he must show that counsel's performance was deficient and that he was prejudiced by counsel's deficient performance. In order to demonstrate prejudice, appellant "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. There is "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance[.]" Id. at 689.

In his seventh point of error, appellant argues that he received ineffective assistance of counsel because his attorney failed to effectively cross-examine Brantley. Specifically, he asserts that counsel should have questioned Brantley about the reliability of profile evidence.

The suggestion that cross-examination should have been conducted in another manner does not rebut the presumption that counsel's conduct fell within the wide range of reasonable professional assistance. Ex parte Perkins, 706 S.W.2d 320, 323 (Tex. Crim. App 1986). Further, on cross-examination, counsel elicited testimony from Brantley that there were "disorganized" elements at the crime scenes which indicated that appellant was not consciously eluding detection, suggesting that appellant may have been acting in a psychotic manner. Counsel also questioned Brantley about appellant's travels and Brantley admitted that appellant had been stopped at the United States/Mexico border on at least one occasion during his crime spree but was later released, suggesting that appellant was not as intent on evading capture as a sophisticated criminal would be. The record reflects that counsel effectively cross-examined Brantley. As such, appellant fails to meet the requirements of the first prong of the Strickland test.

In his eleventh and twelfth points of error, appellant contends he is entitled to a new punishment hearing because his attorney was ineffective for failing to object to the State's jury argument that the jury could not consider evidence of appellant's troubled background or the actions of law enforcement in securing appellant's arrest as mitigating evidence unless they first found that evidence somehow reduced appellant's moral blameworthiness.

The following is the relevant portion of the State's jury argument:

Special Issue No. 2 asked you to look at the charge. I'm sorry. Look at all the evidence again. Look at everything you've heard from the beginning. Looking at three things in particular; the circumstances of the offense, the defendant's character, and background, and his personal moral culpability. And it asked you to look at all of that stuff and see if you find anything, mitigating circumstances, and one thing we didn't talk about in voir dire that is in this charge is what a mitigating circumstance could be, which is evidence that one of you may find reducing the defendant's moral blameworthiness. That's, that's what you are supposed to go through and look for. Anything in the record that reduces his moral blameworthiness. And, once again, I want you to base this answer on the evidence, and I challenge you to find anything in the record over the last two weeks that reduces his moral blameworthiness.

The State did not instruct the jury that it could not consider evidence of appellant's background or his dealings with law enforcement as mitigating evidence without first finding that the evidence reduced appellant's moral blameworthiness. Therefore, appellant has not met the requirements of either prong of the Strickland test. Appellant's seventh, eleventh, and twelfth points of error are overruled.

In his eighth point of error, appellant argues the 12-10 rule of Article 37.071 which requires ten votes for the jury to return a negative answer to the first or second special issue and at least ten votes for the jury to return an affirmative answer to the third special issue violates the Eighth Amendment to the United States Constitution. We have repeatedly rejected identical claims. Johnson v. State, 68 S.W.3d 644, 656 (Tex. Crim. App. 2002); Wright v. State, 28 S.W.3d 526, 537 (Tex. Crim. App. 2000), cert. denied, 531 U.S. 1128 (2001); Chamberlain v. State, 998 S.W.2d 230, 238 (Tex. Crim. App. 1999), cert. denied, 528 U.S. 1082 (2000). Appellant's eighth point of error is overruled.

In his ninth point of error, appellant asserts the trial court erred in denying his request to inform the jury that the failure to answer a special issue would result in a life sentence. He claims the trial court's denial violated his rights under the Eighth Amendment to the United States Constitution. We have repeatedly rejected identical claims. Chamberlain, 998 S.W.2d at 238; McFarland v. State, 928 S.W.2d 482, 519 (Tex. Crim. App. 1996), cert. denied, 519 U.S. 1119 (1997). Appellant's ninth point of error is overruled.

In his tenth point of error, appellant claims that "the language in the jury charge informing jurors that in order for the court to assess the 'proper punishment' it was necessary for them to answer the special issues, in conjunction with the absence of an instruction informing them of the consequences of their inability to agree on an answer to a special issue, was so likely to mislead the jury that it would violate the Eighth Amendment." Appellant cites no case law to support his argument. Tex. R. App. P. 38.1(h). Nonetheless, Article 37.071, section 2(a)(1) prohibits the trial court from instructing the jury on the effect of a failure to reach a unanimous decision regarding the special issues. Further, the United States Supreme Court has held that the Eighth Amendment does not require that juries be informed of the effect of any failure to reach a unanimous agreement regarding punishment. Jones v. United States, 527 U.S. 373 (1999). Appellant's tenth point of error is overruled.

In his thirteenth point of error, appellant claims that under Mosley v. State, 983 S.W.2d 249 (1998), cert. denied, 526 U.S. 1070 (1999), and Apprendi v. New Jersey, 530 U.S. 466 (2000), the mitigation special issue is infirm under the Eighth Amendment to the United States Constitution because it omits a burden of proof. In point of error fourteen, he claims that after Mosley, the mitigation special issue is infirm under the Eighth Amendment because it makes impossible any meaningful appellate review of the jury's determination. In point of error fifteen, appellant claims that Article 44.251, requiring appellate review of sufficiency of all capital punishment issues, when interpreted in conjunction with Article 37.071, section 2(e), placing no burden of proof in the mitigation special issue is infirm under the Eighth Amendment. We have addressed and rejected the claim that the mitigation special issue is infirm as a matter of federal constitutional law because it omits a burden of proof. Jackson v. State, 33 S.W.3d 828, 840-841 (Tex. Crim. App. 2000), cert. denied, 532 U.S. 1068 (2001); McFarland, 928 S.W.2d at 498-99. We have also addressed and rejected the claim that the mitigation special issue violates the Eighth Amendment on the ground that meaningful appellate review of the jury's determination is impossible. Prystash v. State, 3 S.W.3d 522, 535-36 (Tex. Crim. App. 1999).

Appellant argues that the absence of a burden of proof is also a problem under the United States Supreme Court's opinion in Apprendi. In Apprendi, the Supreme Court held that sentence enhancements based on judicial fact findings violated due process. The Court held, "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Apprendi, 530 U.S. at 490. Appellant contends that Apprendi requires the State to bear the burden to prove beyond a reasonable doubt that the mitigation issue should be answered in the negative. Appellant reads Apprendi too broadly.

Apprendi applies to facts that increase the penalty beyond the "prescribed statutory maximum." Under Article 37.071, the statutory maximum is fixed at death. There are no statutory enhancements. A positive jury finding on the mitigation issue does not have the potential of increasing the penalty; rather, it has the potential to reduce a defendant's sentence. Further, with respect to appellant's claim the State should bear the burden of proof as to mitigation, Apprendi does not address this burden.

As to point of error fifteen, we have rejected identical claims and decline to revisit the issue. Tong v. State, 25 S.W.3d 707, 715 (Tex. Crim. App. 2000), cert. denied, 532 U.S. 1053 (2001). Appellant's thirteenth, fourteenth, and fifteenth points of error are overruled.

In his sixteenth point of error, appellant contends that Texas Penal Code section 8.01 is unconstitutional because it does not define the words "know" and "wrong." He claims that the result is the arbitrary and capricious imposition of the death penalty.

There is no error in omitting the definition of a word used in the statute when the word is used in its ordinary sense and is easily comprehended by everyone. Russell v. State, 665 S.W.2d 771, 780 (Tex. Crim. App. 1983), citing Humphreys v. State, 30 S.W. 1066 (Tex. Crim. App. 1895). If there is no statutory definition of a term, the trial court is not obligated to define the term when it "has such a common and ordinary meaning that jurors can be fairly presumed to know and apply such meaning." Phillips v. State, 597 S.W.2d 929, 937 (Tex. Crim. App.1980). Likewise, when the terms used are simple in themselves and are used in their ordinary meaning, such as they are in this case, jurors are supposed to know their meaning, and therefore, a definition in the jury charge is not necessary. Hogan v. State, 496 S.W.2d 594, 599 (Tex. Crim. App.), cert. denied, 414 U.S. 862 (1973), quoting Joubert v. State, 124 S.W.2d 368, 369 (Tex. Crim. App. 1938). The terms "know" and "wrong," though not defined in the statute, are common and easily comprehended. Appellant's sixteenth point of error is overruled.

We affirm the judgment of the trial court.

Meyers, J.

Delivered: May 21, 2003

Publish

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

2. Section 8.01 of the Texas Penal Code states that:

(a)It is an affirmative defense to prosecution that, at the time of the conduct charged, the actor, as a result of severe mental disease or defect, did not know that his conduct was wrong.

(b)The term "mental disease or defect" does not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct (emphasis added).

3. The defense denied Brantley the opportunity to interview appellant.