Full opinion from the Texas Court of Criminal Appeals affirming Cleve Fosters conviction.
IN THE COURT OF CRIMINAL APPEALS
CLEVE FOSTER, Appellant
THE STATE OF TEXAS
APPEAL FROM CASE 0839040A OF THE
CRIMINAL DISTRICT COURT NO. 1
delivered the opinion of the Court in which Keller, PJ., Meyers, Price,
Johnson, Keasler, Holcomb and Cochran, JJ., joined. Womack,
O P I N I O N
In February 2004, a jury convicted
appellant of capital murder. Tex. Pen. Code § 19.03(a). Pursuant to the jury's
answers to the special issues set forth in Texas Code of Criminal Procedure
Article 37.071, sections 2(b) and 2(e), the trial court sentenced appellant to
death. Art. 37.071, § 2(g). (1) Direct appeal to
this Court is automatic. Art. 37.071, § 2(h). Appellant raises eighteen points
of error, many of which are challenges to the legal and factual sufficiency of
the evidence. A brief summary of the facts is helpful to address these points of
error. We affirm.
The evidence shows that appellant
and Sheldon Ward were close friends and were regulars at a bar named Fat
Albert's located in Fort Worth. On the night of February 13, 2002, appellant and
Ward were at Fat Albert's when Nyanuer "Mary" Pal, who was also a regular at Fat
Albert's, arrived there at around 9:00 or 10:00 p.m. The bartender testified
that the three socialized and that toward closing time Ward and Mary engaged in
what the bartender called suggestive "dirty dancing." The bartender testified
that Ward had the most interaction with Mary during the evening and that at
times he, but not appellant, behaved inappropriately towards her. When the bar
closed at 2:00 a.m., appellant, Ward and Mary walked out together. They talked
in the parking lot for a few minutes. Mary left in her car followed closely by
appellant and Ward in appellant's truck, which appellant was driving. The
bartender testified that appellant's truck was right on Mary's bumper, which the
bartender thought was unusual. (2) Approximately
eight hours later at around 10:00 a.m., Mary's nude body was discovered in a
ditch "quite a ways off the road." Mary had been shot in the head, and there was
a wadded up piece of bloody duct tape next to her body. In the early morning
hours of February 15th, Mary's unlocked car, with her cell phone sitting on the
front seat, was found in the parking lot of the apartment complex where she
Subsequent DNA testing established
that semen containing appellant's DNA was found inside Mary's vagina and semen
containing Ward's DNA was found insider her anus. Ward could not be excluded as
a minor contributor of semen found inside Mary's vagina.
Q. [PROSECUTION]: Okay. In looking
at the vaginal swab, I take it you did the same testing on that?
A. [DNA EXPERT]: I did.
Q. Can you tell the jury what the
A. The profile obtained from the
sperm fraction from the vaginal swab was a mixture of a major male contributor
and at least one minor contributor. The major contributor, the profile was the
same as [appellant]. And the minor contributor, I could not exclude [Ward].
Within a week of Mary's murder,
the police investigation had focused on appellant and Ward primarily because the
police learned that they were seen following Mary out of the Fat Albert's
parking lot. On the evening of February 21st, the police arrived at a motel
where appellant and Ward shared a room (room 117) and spoke to appellant. Ward
was not there. The police found various items soaking in a cleaning fluid in a
cooler in the back of appellant's truck. These items consisted of three pairs of
shoes, bungee cords, black gloves, a bicycle pump, a hatchet, a sheathed knife,
two slingshots, a trailer hitch, coat hangers, a brown strap, a bleach bottle,
and a liquid detergent bottle. The State's DNA expert testified at trial that
items soaked in cleaning fluids containing bleach could make DNA recovery almost
impossible. Appellant also directed the police to a dresser drawer in the motel
room that contained a gun that Ward had purchased from a pawn shop in August
2001. DNA testing established that the blood and tissue on the gun was Mary's.
The police also found bloody clothes in Ward's car. The blood on these clothes
Appellant went to the homicide
office on February 21st to provide a DNA sample. Appellant was not
under arrest at this time. (3) Appellant spoke to
Detective McCaskill at the homicide office. McCaskill testified that appellant
made several inconsistent statements during the February 21st
interview. Appellant initially denied that Mary had been inside his truck, he
later stated that she may have leaned inside it, and he ultimately stated that
"they" went cruising but that "they" brought Mary back to her vehicle at Fat
Albert's. McCaskill testified that he did not believe this latter statement
about dropping Mary off at her vehicle at Fat Albert's after "they" went
cruising because Mary's vehicle was found outside her apartment. Appellant never
admitted to having vaginal sex with Mary during four separate interviews with
The police also obtained DNA
samples from Ward, apparently some time on the night of February 21st. The next
day, Ward decided to move from the motel room that he shared with appellant.
Duane Thomas testified, as a rebuttal witness for the prosecution, that he was
an acquaintance of Ward's and that Ward called him in the early morning hours of
February 22nd asking if he could stay with Thomas. Thomas testified
that Ward told him over the telephone that he was in trouble because he had
killed someone. Ward and appellant were at the motel room when Thomas arrived
there at about 2:00 or 2:30 a.m. on February 22nd to pick up Ward.
Thomas testified that he waited in his truck and saw appellant help Ward gather
his bags but that Ward took them out to Thomas' truck by himself. After they
left, Ward told Thomas that he followed a girl home from a bar, forced her into
a truck at gunpoint, took her out to the country, raped her and blew her brains
out. Ward did not mention to his friend Thomas that appellant was involved in
the offense or anything else that would explain the presence of appellant's DNA
inside Mary's vagina.
Thomas eventually stopped at a
store and "[got] the police" who arrested Ward. Detective Cheryl Johnson
testified that Ward gave an audiotaped statement to the police at 7:30 a.m. on
February 22nd. In this statement, Ward told the police a somewhat different
story than the one he told his friend Thomas a few hours before. Ward told the
police that he was drinking heavily and using cocaine on the night of the
offense. He stated that he and Mary made arrangements to meet up after Fat
Albert's closed. According to Ward, after Fat Albert's closed, he and appellant
went back to their motel room where appellant "pretty much passed out" on the
bed. Ward drove alone to Mary's apartment complex in appellant's truck and
picked Mary up. (5) Ward claimed that he and Mary
had consensual vaginal and anal sex on the front seat of appellant's truck, and
that they drove to the motel room where they had consensual vaginal sex. Ward
and Mary left the motel and drove around "a little bit." Ward next recalled
standing over Mary's body lying on the ground with a gunshot wound to her head
and the gun in his hand. Ward did not remember firing the gun. Ward stripped
Mary's body and left. He said that he dumped Mary's clothes in a dumpster the
location of which he could not recall. He stated that he put his bloody clothes
in his car at the motel. Ward also stated that just before he moved out of the
motel room on February 22nd, he left appellant a letter (6)
apologizing to him for involving him. Ward also stated that he had told Thomas a
few hours before that he had sex with a girl and killed her.
Detective McCaskill testified that
Mary's nude body was found "quite a ways off the road" in a ditch. He testified
that Mary's body did not appear to have been in the location where it was found
for "more than a few hours."
Q. [PROSECUTION]: Can you tell the
jury the condition of this body that was found?
A. [MCCASKILL]: Yes, sir. She was
nude. She was-she had what appeared to be a gunshot wound to the head. She had
long braided hair. She did not appear to have been there for a long time. There
was not a degree of deterioration or decompensation [sic] or anything that I
could notice. She didn't appear to have been there probably more than a few
McCaskill testified that there
"was no forensic evidence found in or on [appellant's] truck that linked the
victim [sic] to this crime." He opined that it was very unlikely that "a person
could shoot and kill another" and "not get something on them, and then take a
body that is bloody from one location to another and dump it and not get
anything on their clothing or anything in their truck." He also testified that
it was possible that only one person could have carried Mary's body where it was
found even though he was "very comfortable" with saying that two people carried
her body to the location where it was found.
McCaskill believed that Mary's
body was carried to the location where it was found after Mary was shot
elsewhere because there was no "blood splatter around the area."
Q. [PROSECUTION]: And being at the
crime scene and examining the crime scene photographs, do you have an opinion as
to whether or not [Mary] was shot as she lay in that location [where she was
A. [MCCASKILL]: No, sir. I don't
believe that she was.
Q. Can you tell the jury why?
A. Well, we typically would have
seen a lot of blood splatter around the area. Because it was what appeared to be
a close contact wound, there's what's referred to as blow back. A shot that's
fired from a centerfire handgun, a large-caliber handgun, has quite a bit of
actual muzzle blast, and it creates-the blast itself causes quite a bit of
damage which will cause flesh and bodily fluids to come back out. And we would
normally see that on the area, possibly the ground around there or on her body
itself. And we did not see that in this case.
The medical examiner also
testified that there would have been "a profuse amount of blood" associated with
Mary's gunshot wound.
Q. [PROSECUTION]: If [Mary] had
been found in the place she was shot, in other words, lying on-if she had been
lying on some dry leaves, dead leaves, and had also been shot there, what kind
of matter or blood would you expect to find around these wounds?
A. [MEDICAL EXAMINER]: This was,
in fact, a rather devastating gunshot wound, and the bullet had passed through
the brain stem and blood vessels, so there would be a profuse amount of blood
there, I would suspect.
Q. And would the path of the
bullet have also expelled brain matter in the area or do you have an opinion
A. Yes. Certainly there's a
possibility but one can't say with certainty, but frequently, with an explosive
gunshot wound and increasing pressures and bleeding, the blood and the brain
matter frequently oozes out both from the entry gunshot wound as well as the
exit gunshot wound.
The evidence also showed that Mary
was five-seven and 130 pounds. Ward is roughly five-six and 140 pounds.
Appellant is a big man, is roughly six feet tall and approximately 225 pounds.
McCaskill testified that he believed it possible "that two people might have
carried [Mary's body] out there."
Q. [PROSECUTION]: Let me take you
back to State's 24. Is there anything of significance to you about how her body
A. [MCCASKILL]: Yes, sir.
Q. Tell us what that is?
A. In particular, I considered her
right arm here, and the way that she was lying with that arm up, I considered
the possibility that two people might have carried her out there. One person
carrying her feet, the other person carrying the arms, and they might have just
dropped her in that position.
McCaskill also believed it
significant that a Whataburger cup in good condition was found "no more than 30
to 40 yards" from Mary's body because appellant had stated in one of his
statements to the police "that he would on occasion frequent Whataburger."
Q. [PROSECUTION]: And if you can
use a laser pointer to see if you see anything of significance to you.
A. [MCCASKILL]: Yes, sir. It's a
Whataburger cup laying right there.
Q. What's significant about that?
A. Well, at the time it was taken,
it appeared to me that that cup had not been out there very long. It was not
weathered or faded as if it had been out there for a long time. I believed that
it was at least a possibility that it could have been dropped by one of the
people or the person or persons responsible. I had to at least consider that.
Q. Well, in light of the fact that
[appellant], in his audiotaped statement, told you that he would on occasion
A. Yes, sir. At the time that
photograph was taken, I wasn't aware of that, but it became, I believe,
Q. Do you think it's important
A. Yes, I do.
Q. Why is that?
A. Because of what we just talked
about. They frequented Whataburger and a Whataburger cup was discarded near the
body. It appeared not to have been there very long.
McCaskill also testified that
appellant and Ward had a unique relationship and that appellant was kind of a
mentor to Ward.
Q. [PROSECUTION]: Are you aware of
the unique relationship that [appellant] shared with [Ward]?
A. [MCCASKILL]: Yes, sir.
Q. He recruited him into the Army?
A. Yes, sir.
Q. Kind of a mentor to him?
A. I believe so, yes.
[DEFENSE]: Your Honor, I'm going
to object to leading.
[THE COURT]: Sustained.
McCaskill also testified that Ward
and appellant had been roommates in at least three different places and that
they did "practically everything together."
Q. [PROSECUTION]: Was there
anything of significance to you in the relationship between [appellant] and Ward
and all the different places they lived, and all the different things they've
done, and that they were seen together with Mary that night and seen leaving,
following her and yet [appellant] is going to admit that he was cruising with
her with [Ward] in the truck as well? Anything of significance about that to
A. [MCCASKILL]: Yes, sir. Only to
that they seemed to me that they did practically everything together.
The bartender testified that she
could not think of a time when she saw appellant without Ward.
Q. [PROSECUTION]: Did you ever see
one without the other?
A. [BARTENDER]: I cannot think of
a time when I saw just one of them.
The bartender also testified that
appellant and Ward were in Fat Albert's again on Thursday, February 14th,
after Mary had been murdered.
Q. [PROSECUTION]: What about
[appellant] and [Ward], did you ever see them again at Fat Albert's?
A. [THE BARTENDER]: Yes, I showed
up there on Thursday to Fat Alberts and they were present.
Q. And when you say Thursday, are
you meaning Valentine's Day?
A. Valentine's Day.
Q. The day after you had last seen
A. Yes, sir.
Q. Or I guess actually the same
day early morning hours?
A. Yes, sir.
OF THE EVIDENCE
In points of error one, four, and
seven, appellant complains of the trial court's failure to grant his first
motion for directed verdict made at the close of the prosecution's case-in-chief
on the murder, aggravated sexual assault and kidnapping elements of the offense.
(7) In points of error two, three, five, six, eight and nine, he
complains that the evidence is legally and factually insufficient to prove these
elements. In evaluating the legal sufficiency of the evidence, we view the
evidence in the light most favorable to the verdict and then determine whether
any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 316,
(1979). In a factual-sufficiency review, we view all of the evidence in a
neutral light, and we will set aside the verdict if the evidence supporting it
is too weak to support a finding of guilt beyond a reasonable doubt, or, after
weighing all of the evidence in support of and contrary to the verdict, the
contrary evidence is strong enough that the beyond-a-reasonable-doubt standard
could not have been met. See Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex.Cr.App.
A person commits the offense of
capital murder if he "intentionally or knowingly causes the death of an
individual" (8) and "the person intentionally
commits the murder in the course of committing or attempting to commit
kidnapping, . . . [or] . . . aggravated sexual assault . . ." Tex. Pen. Code
§19.03(a)(2). Viewed in the light most favorable to the jury's verdict, the
evidence supports a finding that, during the eight hours from when Fat Albert's
closed and Mary's body was discovered, Mary was abducted from her apartment
complex, sexually assaulted, murdered, and her body was moved to the location
where it was found. A jury could rationally find that appellant and Ward
abducted Mary from her apartment complex and sexually assaulted her. The
presence of appellant's DNA in Mary's vagina, the unusual manner in which
appellant followed Mary out of Fat Albert's parking lot, and Ward's statement to
Thomas that Mary was forced into appellant's truck support these findings.
With regard to the murder, there
is the evidence of appellant's and Ward's "unique relationship" and the evidence
that they did "practically everything together." There is also McCaskill's
testimony that he was "very comfortable" with saying that two people were
involved in moving Mary's body to the location where it was found. Additionally,
appellant made several inconsistent statements to the police, particularly
regarding cruising with Mary and Ward, when he initially stated she had not been
in his truck, and the assertion that they returned Mary to her car at Fat
Albert's when her car was found at her apartment and the bartender testified
that appellant and Ward followed Mary from Fat Albert's. A jury could also infer
appellant's consciousness of guilt from the evidence regarding the items in the
back of appellant's truck soaking in bleach, which would make DNA analysis
almost impossible. Finally, there is appellant's failure to admit to having had
vaginal sex with Mary in light of the DNA evidence establishing the presence of
appellant's DNA inside Mary's vagina.
On this record, a jury could
rationally infer appellant's involvement in Mary's abduction, sexual assault,
murder, and the disposal of her body. We, therefore, decide that the evidence is
legally sufficient to support appellant's conviction.
Viewed even in a neutral light,
the evidence is also factually sufficient to support the jury's verdict. The
evidence discussed in our legal sufficiency review is not too weak to support a
finding of guilt beyond a reasonable doubt. See Zuniga, 144 S.W.3d at
484 (question to be answered in a factual-sufficiency review is: "Considering
all of the evidence in a neutral light, was a jury rationally justified in
finding guilt beyond a reasonable doubt?").
We also cannot conclude that the
evidence contrary to the verdict is so strong that the beyond-a-reasonable-doubt
standard could not have been met. We initially note that the absence of other
forensic evidence connecting appellant to Mary's murder does not constitute
contrary evidence. The contrary evidence in this record primarily consists of
appellant's denials and portions of Ward's somewhat conflicting statements to
Thomas and to Detective Cheryl Johnson taking sole responsibility for the
offense. But even under a factual-sufficiency analysis, an appellate court must
still afford "due deference" to a jury's determinations, and a jury could
rationally conclude that the truth was "sprinkled throughout" these statements
which, considered with the other evidence outlined above, rationally establishes
appellant's guilt. See Johnson v. State, 23 S.W.3d 1, 9 (Tex.Cr.App.
2000) (factual-sufficiency review requires reviewing court to afford "due
deference" to jury's determinations); see also Zuniga, 144 S.W.3d at
483 (factual-sufficiency standard contains various safeguards "to ensure that
reviewing courts [are] deferential to the fact-finder"). In addition, the
contrary evidence actually presented to the jury at the guilt phase at trial
provides no innocent explanation about how appellant's DNA came to be inside
Mary's vagina. Points of error one through nine are overruled.
In point of error ten, appellant
claims that the evidence is legally and factually insufficient to support the
jury's affirmative answers to special issues one (future dangerousness) and two
(anti-parties). (9) For special issues one and
two, we apply the Jackson v. Virginia standard in determining whether
the evidence is legally sufficient to support each finding. See
Alldridge v. State, 850 S.W.2d 471, 487 (Tex.Cr.App. 1991) cert. denied,
510 U.S. 831,114 S.Ct. 101, 126 L.Ed. 2d 68 (1993). We do not conduct a factual
sufficiency review of the future-dangerousness special issue. McGinn v.
State, 961 S.W.2d 161,169 (Tex.Cr.App. 1998). However, we do conduct a
factual sufficiency review of the anti-parties special issue under the
Zuniga v. State standard. (10)
We first address the
future-dangerousness special issue. At the punishment phase, appellant's ex-wife
testified that appellant became verbally and physically abusive when he found
out that she was pregnant. She testified that appellant on several occasions hit
her head against the wall during arguments, that appellant once tried to shove
her out of the car while they were driving, and that appellant assaulted her in
front of their son.
The prosecution presented evidence
that appellant was involved in a robbery in 1984 during which appellant placed a
knife to the victim's neck and that appellant participated in a murder that
occurred in 2001 at the Canyons apartment complex in Fort Worth. The victim,
Rachel Urnosky, was found laying on her bed with a gunshot wound to the head.
The police recovered a bullet from Urnosky's pillow, which came from the gun
seized from the appellant's motel room on February 21, 2002. The appellant
admitted being in Urnosky's apartment with Ward for a sexual tryst, but claimed
that they left when Urnosky asked them to leave.
Dr. David Self interviewed the
appellant and reviewed the police files regarding Mary and Urnosky, and
concluded that the appellant had a high risk for future acts of violence. Dr.
Self opined that the appellant's high risk for future violence would be
particularly true under the circumstances of a life sentence with no parole
eligibility for forty years because the appellant would have nothing to lose by
engaging in acts of violence. On this record, a jury could rationally have found
that there is a probability that appellant would commit criminal acts of
violence that would constitute a continuing threat to society.
With regard to the anti-parties
special issue, we have held that the anti-parties special issue is relevant when
the jury is instructed under the law of parties. See Valle, 109 S.W.3d
at 504. The record shows that appellant met Ward when he recruited Ward into the
army and acted as Ward's mentor. Appellant elaborates on their relationship in
his March 22, 2002, statement (see footnote 4):
In early December of last year,
Sheldon let me know he wanted to know what it felt like to kill somebody. You
know, he was really pissed off at Tara for taking his daughter away. That just
added fuel to the fire, I reckon. Somewhere around the first week or so in
December we met at Fat Alberts like we do normally. It was a custom for us to go
there at least two or three times a week. He said he had that itch. He was ready
to go do something. He was ready to go out and find out what it was like to take
somebody's life. We went cruising around town for a while. I didn't know he had
a gun, but sometimes he would have it on him and not say anything about it. We
went to different apartment complexes just kind of cruising around because I
figured if we cruised around, he would just lose the urge. I told him, I'm going
to cruise over to the Canyons where I used to live because it was a cool place,
and I wanted to see if any of my friends were still there. . . . I went to Fort
Hood the next morning and came back about five days later. We were at the house
on North Ridge and Sheldon said, I got something to show you. We were in his
room and he showed me a newspaper clipping that was about a girl that had been
shot, and he told me that he had his first one. He seemed happily nervous.
Appellant knew what Ward was
capable of, and was with Ward the night of Urnosky's murder and the night of
Mary's murder. Appellant and Ward shared a motel room and were hanging out at
their usual spot, Fat Albert's, the night they met Mary. Appellant and Ward left
the bar in appellant's truck following Mary. Appellant directed police to the
drawer where the gun, that was linked to Mary's death, was found. The police
found shoes, bungee cords and other materials soaking in cleaning fluid inside
an ice chest in appellant's truck. Ward's DNA was found on the anal and vaginal
swabs and appellant's DNA was found on the vaginal swab. The evidence supports a
finding that appellant and Ward acted together in their endeavors or that, at
least, the appellant should have anticipated Ward's conduct in shooting Mary
after they sexually assaulted her. We cannot conclude that the jury's
affirmative answer to the anti-parties special issue is irrational or clearly
wrong and unjust. Appellant's tenth point of error is overruled.
Appellant complains in his
eleventh point of error that the trial court erred in overruling his motion to
suppress evidence seized pursuant to search warrants. Appellant argues that the
affidavits did not establish probable cause to support the issuance of the
warrants. A magistrate's decision to issue a search warrant is reviewed under a
deferential standard of review. Swearingen v. State, 143 S.W.3d 808,
810-11 (Tex.Cr.App. 2004); see also, Illinois v. Gates, 462 U.S. 213,
234-37 (1983). The Fourth Amendment requires no more than a substantial basis
for concluding that a search would uncover evidence of wrongdoing. Id.
Appellant argues that even after granting the magistrate the requisite
deference, it is clear from the four corners of the affidavit that it failed to
contain sufficient facts to justify the issuance of a warrant.
In reviewing the affidavit, it is
clear that appellant and Ward were the last people seen with Mary at Fat
Albert's. Appellant and Ward followed Mary's car when they left Fat Albert's in
appellant's truck. Early the next morning Mary was discovered dead. Three
witnesses positively identified Ward and the appellant in a photospread. One
witness provided police with a telephone number for appellant, which was traced
to a motel room in appellant's name. This same witness said he played pool with
appellant, Ward, and the victim that night, and that Ward stated he was going to
take "Mary" home with him and alluded that he was going to have sex with her.
Outside the motel room was the white pick-up truck, which Lemlin had already
identified as the one driven by appellant that evening. Given this information,
we find that the magistrate had a substantial basis for concluding that a search
would uncover evidence of wrongdoing and that the affidavit contained sufficient
facts to support the issuance of the warrant. The trial court did not err in
denying appellant's motion to suppress. Appellant's eleventh point of error is
Appellant complains in his twelfth
point of error that the trial court erred in overruling defense counsel's motion
to suppress appellant's audio-taped statement. Appellant argues that Detective
McCaskill (11) failed to obtain any waiver from
appellant before obtaining his statement. Appellant claims that the statement
fails to comply with Article 38.22, § 3(a), which requires various procedural
safeguards as conditions precedent to the admission of statements made as a
result of custodial interrogation. The State argues that Article 38.21, § 3(a),
does not apply because appellant was not in custody when he gave the statement.
A trial judge is the sole trier of
fact at a suppression hearing and thus evaluates witness testimony and
credibility. We give great deference to the trial court's determination of
historical facts while reviewing the court's application of the law de novo.
Torres v. State,182 S.W.3d 899, 902 (Tex.Cr.App.2005). We must view the
evidence in the light most favorable to the trial court's ruling when the trial
court does not file any findings of fact. Id. When no such findings of
fact were made, we will assume that the trial court made implicit findings of
fact that support its ruling, as long as the findings are supported by the
During the pre-trial hearing on
appellant's motion to suppress the audio-tape, Detective McCaskill testified in
regard to appellant's interview:
Q. Where did you talk to him at
the homicide office?
A. In an interview room that was
located off a hallway. I didn't speak to him in the open office.
Q: Can you describe for the judge
what this interview room looks like?
A: Well, it's about - - without
the benefit of a tape measure, it's probably about ten by ten, and there's just
a desk, and then there's two chairs on either side of the desk.
Q: When you were speaking to Mr.
Foster, was he handcuffed, belly-chained, have leg irons on him, or anything
A: No, sir.
Q: Was he allowed to get a drink
of water if he'd wanted one?
A: Yes, absolutely.
* * * * * * * * * * * * * * * * *
* * *
Q: Did he ever - - was he allowed
to go use the rest room if he wanted to?
A: If he needed to, absolutely.
* * * * * * * * * * * * * * * * *
* * *
Q: And when you sat down to speak
to Mr. Foster in that interview room, did you Mirandize him?
A: Yes, I did.
* * * * * * * * * * * * * * * * *
* * *
Q: Approximately how much time did
you spend talking to Mr. Foster - - defendant Foster at that time, on this
A: We started at about 7:14 p.m.,
and we would have finished at approximately ten o'clock, or 2200, roughly. I
didn't document the exact ending time but probably a little over three hours.
Q: And during that time, was the
defendant under arrest?
Q: Was he free to leave?
Q: Did he ever ask to leave?
A: No, sir.
Q: When you got through talking to
him, what happened? What did y'all end up doing?
A: One of the uniformed patrol
officers drove him back to the Great Western Inn.
The record supports a finding that
appellant was not in custody when he gave the statement. See Dowthitt v.
State, 931 S.W.2d 244, 254 (Tex. Crim. App. 1996). Appellant's twelfth
point is overruled.
In points of error thirteen
through sixteen, appellant complains of improper jury argument. Permissible jury
argument generally falls within four areas: (1) summations of the law; (2)
reasonable deductions from the evidence; (3) responses to the defendant's
argument; or (4) pleas for law enforcement. Dinkins v. State, 894
S.W.2d 330, 357 (Tex.Cr.App. 1995), cert. denied, 516 U.S. 832 (1995).
When the trial court sustains an objection and instructs the jury to disregard,
but denies a defendant's motion for mistrial, the issue is whether the trial
court erred in denying the mistrial. Id. We review this issue under an
abuse of discretion standard. Hawkins v. State, 135 S.W.3d 72, 77 (Tex.Cr.App.
2004). Only in extreme circumstances, where the prejudice is incurable, will a
mistrial be required. Id. We balance the following three factors
outlined in Mosley v. State to evaluate whether the trial
court abused its discretion in denying a mistrial for improper jury argument:
(1) the severity of the misconduct (prejudicial effect), (2) curative measures,
and (3) the certainty of the punishment assessed absent the misconduct
(likelihood of the same punishment being assessed). (12)
Id. Counsel is allowed wide latitude in drawing inferences from the
evidence so long as the inferences drawn are reasonable, fair, legitimate, and
offered in good faith. Cantu v. State, 871 S.W.2d 667, 690 (Tex.Cr.App.
1992), cert. denied, 509 U.S. 926 (1993).
In his thirteenth point of error,
appellant complains that the trial court erred in failing to grant a mistrial
after the prosecutor told the jurors that defense counsel was advancing a theory
that Mary was "nothing but a whore." The challenged portion is as follows:
[THE STATE]: And the solicitude -
and John is a sincere guy and I think he meant it. The solicitude, though, that
he showed for [Mary] really flies in the face of the defensive theory, which
means she is nothing but a whore.
[APPELLANT]: Objection, Your
[TRIAL COURT]: Sustained.
[APPELLANT]: I would ask for the
jury to be given an instruction to disregard.
[THE COURT]: The jury will
disregard the last statement by counsel. And when you're instructed to
disregard, it is as if it has not happened. That means you don't discuss it and
you don't talk about it, and you don't use it in your deliberations.
[APPELLANT]: We feel that an
instruction is insufficient to cure the harm. We would ask for a mistrial at
[TRIAL COURT]: That's denied.
[THE STATE]: They want you to
believe that she had consensual sex on the same night with two men she had just
Here, the defensive theory was
that Mary had consensual sex with appellant and Ward. Therefore, while the term
"whore" was not used by the defense, they painted a picture of Mary in which the
term "whore" would not be an unreasonable characterization of the defense's
description of Mary. In addition, any error or prejudice from the argument was
cured by the trial court's instruction to disregard. See Andujo v.
State, 755 S.W.2d 138, 144 (Tex.Cr.App. 1988) (any injury from improper
argument is ordinarily obviated when the court instructs the jury to disregard
the argument). Appellant's thirteenth point of error is overruled.
Appellant argues in his fourteenth
point of error that the prosecutor misstated the testimony of a forensic DNA
analyst (Connie Patton). The challenged portion of jury argument is as follows:
[THE STATE]: Remember Pat Gass,
our crime scene officer who went out and picked up the weapon with Mike Carroll?
He told you that he took sections from the passenger seat of the truck, and
Connie, said, I got sections from the passenger's seat of the truck and [Mary]
could not be excluded as a potential contributor to the blood.
[APPELLANT]: I believe that's a
misstatement of the evidence, Your Honor.
[THE STATE]: And interestingly -
[TRIAL COURT]: In what way,
[THE STATE]: I'm sorry, Judge.
[APPELLANT]: I don't believe she
[TRIAL COURT]: I am going to
overrule the objection. The jury will remember the specific testimony.
Officer Pat Gass testified that he
found some apparent blood on the fabric in the headliner and the seat fabric in
appellant's truck, which he collected during his investigation but he did not
know what was done with the evidence.
The testimony of the DNA analyst
(Patton) regarding the fabric from the truck is as follows:
Q: [THE STATE]: Okay. Any of the
materials that were taken from a vehicle, the truck, headliner, the seat cover,
anything like that, did any of those connect back to [Mary]?
A: [PATTON]: The stain from the
right front passenger seat, the profile was a mixture of at least two
individuals in which neither the victim or Mr. Sheldon Ward could be excluded as
a possible contributor.
Q: Okay. You know from which
vehicle that was taken?
A: I do not know.
Q: Okay. Anything from the
headliner of the truck?
A: Blood was not detected on that
The appellant points out that
Patton did not know from which vehicle the seat cover came, but Officer Gass
previously testified the seat cover came from the pickup truck. However,
Detective McCaskill testified that no forensic evidence was retrieved from the
truck. In reviewing all the testimony regarding the blood from the truck, we
find that the State's jury argument is a deduction of the combined testimony of
Gass and Patton, but was a misstatement of the record based on Detective
McCaskill's testimony. Thus, the trial court erred when it overruled appellant's
objection. However, we find the error harmless. There are three factors to
consider when assessing the impact of the harm arising from jury argument error
under Rule 44.2(b) of the Texas Rules of Appellate Procedure, for
non-constitutional error: (1) severity of the misconduct, (the magnitude of the
prejudicial effect of the prosecutor's remarks), (2) measures adopted to cure
the misconduct (the efficacy of any cautionary instruction by the judge), and
(3) the certainty of conviction absent the misconduct (the strength of the
evidence supporting conviction). (13)
Here, the degree of misconduct was
mild. The prosecutor concluded that the material tested by Patton was from the
truck because that was the material retrieved by Officer Gass, however Patton
testified that she could not remember where the material came from, therefore
the statement made by the prosecutor may be correct but was not in fact stated
by Patton. The comment was not reiterated or emphasized by the State and
comprised a single sentence within the State's argument. As to the second
factor, the trial court gave no curative instruction since it overruled
appellant's objection. Finally, the evidence was sufficiently strong absent the
prosecutor's reference to the Mary's blood in appellant's truck. The substance
in the truck was not critically necessary to tie appellant to the vehicle, since
appellant was seen driving his truck as he followed Mary's car and appellant
admitted cruising with the victim the night of her death, in his truck. Given
the mild nature of the prosecutor's statement in light of the evidence as a
whole, the error in the statement was harmless. Appellant's fourteenth point of
error is overruled.
Appellant argues in his fifteenth
point of error that the trial court erred in failing to provide an instruction
to disregard after she sustained defense counsel's objection to the jury
argument that there was evidence that appellant sexually assaulted Mary
after Sheldon Ward put a gun to her head. The challenged portion of the
argument is as follows:
[THE STATE]: Because stop and
think for a second, okay. What was her last moments like, [Mary's]? Was she
scared when [Ward] jumped out of that truck, put that gun to her head, made her
get in the floorboard, and he drove to that old country road? Was she begging
for her life as Sheldon Ward anally raped her, was she saying, please, don't
And as Cleve Foster began to
sexually assault her, rape her vaginally, was she saying, please, just don't
kill me, please, just don't do that?
[APPELLANT]: Objection, Your
Honor, nothing in the record.
[TRIAL COURT]: Sustained.
[APPELLANT]: I would ask for an
instruction for the jury to disregard.
[TRIAL COURT]: Denied.
[APPELLANT]: Motion for mistrial.
[TRIAL COURT]: Denied.
Appellant complains that the
argument is outside the record because there is no evidence that the appellant
vaginally raped Mary after Ward put a gun to her head and anally raped
her. The State asserts that this argument does not point out who went first or
second in sexually assaulting Mary, but is only a plea for the jury to consider
the terror and pain inflicted on Mary during each of the sexual assaults. We
find that the State's argument is a reasonable deduction from the evidence and a
plea to the jury to consider the circumstances of this crime. Furthermore, any
error is harmless because it did not matter who raped her first; there is
evidence that both of them raped her. Appellant's fifteenth point of error is
In appellant's sixteenth point of
error, appellant contends that the trial court erred by overruling defense
counsel's objection when the prosecutor argued to jurors that there can never be
enough mitigating evidence to justify a no answer to the third special issue.
The contested part of the argument is as follows:
[THE STATE]: And I expect, when
you look into your heart of hearts, you'll understand that while there may be
some evidence that -- no one has tried to say that this person is utterly
worthless, but you must remember the evidence of mitigation must be sufficient,
must be enough. Enough. How is there ever enough? How is there ever enough?
That's no more Christmas, empty seat at the birthday table.
[APPELLANT]: Objection, Your
Honor, counsel's argument is attempting to nullify the jury instructions and get
them to disregard their duty as jurors by saying there is never enough
[TRIAL COURT]: Overruled.
[THE STATE]: In this case, under
the evidence, there is not enough, I suggest to you.
We find that the State did not
abuse its discretion in overruling appellant's objection. We also find that
while the initial argument made by the State may have been broad, the State's
later argument, "[i]n this case, under the evidence, there is not enough,"
directs the jury to consideration of this specific case. The mere fact that the
state argued that the jury should find the evidence insufficient to answer "yes"
to the mitigation instruction is not a nullification argument asking the jury to
ignore the trial court's instruction. Therefore, we overrule appellant's
sixteenth point of error.
CONSTITUTIONALITY OF STATUTE
In points of error seventeen and
eighteen, appellant asserts that Article 37.071 is unconstitutional because it
impermissibly shifts the burden of proof on the mitigation issue to the
defendant. We have addressed and rejected this claim before, and appellant has
given us no reason to revisit the issue here. See Matchett v. State,
941 S.W.2d 922, 935 (Tex.Cr.App. 1996), cert. denied, 521 U.S. 1107
(1997). Points of error seventeen and eighteen are overruled.
We affirm the judgment of the
Delivered: April 12, 2006
Do Not Publish
1. Unless otherwise indicated, all references to Articles
refer to the Texas Code of Criminal Procedure.
2. The bartender testified that there was something
unusual about how appellant followed Mary out of the parking lot because one
"couldn't put anything between the two bumpers."
Q. [PROSECUTION]: You seemed to
indicate that there was something unusual about the way in which [appellant] and
his passenger, [Ward], followed Mary. And perhaps I missed it on my first go
around. What did you find that was so unusual? You said something about almost
having a wreck?
A. [BARTENDER]: Well, you couldn't
have put anything between the two bumpers. Going across this road, there's an
intersection, you know, that's cut out so that you can go west. There's a light
there. You can't go nowhere. There's no traffic. So it was just odd that she
would be going into the road and they would be right on her bumper. And it was
just odd. It was odd for them to be together. It was odd for that to be
3. Appellant was arrested for this offense in March 2002
after the DNA results came back.
4. In a March 22, 2002, written statement to the police,
appellant claimed that Mary performed oral sex on him at the motel room. This
written statement, however, was not admitted into evidence at the guilt phase of
trial. It was admitted into evidence at the punishment phase. Appellant claimed
in this statement that he and Ward followed Mary to her apartment complex from
where she voluntarily went with them to the motel. Appellant stated:
I laid down and started watching
T.V. [Ward] and [Mary] were over there kissing and making out on the bed. I wake
up and I go to sleep. The next thing I remember that she is giving me a blow
job. I'm doing everything I can to wake up. Because if I'm going to get FANKed I
want to enjoy it. I'd fall asleep and I wake up the same shit. The next thing I
remember him telling me that he was going to take her home.
5. Appellant told McCaskill during the February 21st
interview that Ward had not driven his truck for more than two weeks. However,
the murder occurred only one week prior to this date.
Ward's audiotaped statement
(Defense Exhibit 3) was played to the jury during the guilt phase of trial.
Ward's letter to appellant was not introduced at trial.