Monday, May 6, 2010
Media Advisory: Billy Galloway scheduled for execution

AUSTIN – Texas Attorney General Greg Abbott offers the following information about Billy John Galloway, who is scheduled to be executed after 6 p.m. on Thursday, May 13, 2010. On March 24, 2000, in Hunt County, Galloway was sentenced to die for the capital murder of David Lawrence Logie.

FACTS OF THE CRIME

During late summer of 1998, Galloway, his girlfriend, Deannee Bayless; Galloway’s friend Kevin Varga; and Varga’s girlfriend, Venus Joy Anderson; were all on probation or parole with the South Dakota Department of Corrections. On September 1, 1998, the four gathered their money and belongings, loaded up Galloway’s car, and left South Dakota.

A few days later, they arrived in Wichita, Kansas, and checked into a hotel. That evening, after discussing a plan to lure someone back to the hotel to blackmail or rob him, Galloway, Anderson, and Bayless went to a bar. There they met David McCoy. Bayless talked McCoy into returning to the hotel with them. Once there, the men killed McCoy, wrapped his body in a blanket, and put it into Galloway’s car. Driving both Galloway’s and McCoy’s cars, the group left Wichita. After Galloway’s car broke down, they abandoned it in a parking lot with McCoy’s body still inside.

On September 7, the group arrived in Greenville, Texas. Galloway and Varga wanted more money, so they agreed to use the same pickup scheme that they had used in Kansas. Shortly thereafter, Bayless and Anderson met David Logie at a motel and convinced him to go eat with them. With Bayless driving Logie’s rental car, the three left the Holiday Inn parking lot. Galloway and Varga surreptitiously followed them in McCoy’s car. Shortly thereafter, Bayless pulled off the road near a building. Bayless got out of the car with Logie. Galloway appeared and began cursing and hitting Logie with his fist, knocking him down. Varga repeatedly struck Logie with a log, killing him. Bayless took Logie’s wallet and credit cards. The group burned McCoy’s vehicle and left Greenville in Logie’s rental car.

The group drove to San Antonio, where Bayless and Anderson used Logie’s stolen credit cards at a shopping mall. As they were leaving the mall parking lot, the women saw a police car behind them, and they pulled into a nearby Wal-Mart parking lot. The officer approached and separated the two women. After Anderson confessed to the murders, officers arrested Bayless and Anderson. Galloway and Varga were arrested later that night. Based on the information Anderson gave in her confession, the authorities found Logie’s body near Greenville and told Kansas authorities about McCoy’s murder.

PUNISHMENT-RELATED EVIDENCE

At sentencing, the State introduced evidence that while awaiting trial, Galloway had assaulted a guard and had escaped from Hunt County Jail. The State also offered testimony from victims’ relatives. And the State introduced evidence that in Sioux Falls, South Dakota, in 1996, Galloway had been involved in a car chase with police that led to a crash. Galloway was charged with driving while intoxicated and drug possession. He also had been arrested in South Dakota for resisting arrest, causing disturbances, possession of a concealed weapon, and for repeatedly threatening police officers, and had spent time in the South Dakota Prison system.

PROCEDURAL HISTORY

Nov. 19, 1999 – A Hunt County grand jury indicted Galloway for capital murder.
March 21, 2000 – After a trial in the 354th District Court of Hunt County, the jury found Galloway guilty of capital murder.
March 24, 2000 – After a hearing, the court sentenced Galloway to death.
Jan. 29, 2003 – On appeal, the Texas Court of Criminal Appeals affirmed the conviction and sentence.
Oct. 6, 2003 – The U.S. Supreme Court denied certiorari review.
Jan. 21, 2004 – The Texas Court of Criminal Appeals denied Galloway’s application for state habeas corpus relief
Dec. 3, 2008 – A Dallas U.S. district court denied federal habeas corpus relief.
Jan. 5, 2009 – The federal district court denied Galloway’s request for permission to appeal.
Sept. 18, 2009 – The United States Court of Appeals for the Fifth Circuit denied Galloway’s request for permission to appeal.
April 5, 2010 – The Supreme Court denied Galloway’s petition for writ of certiorari.

Texas Execution Information Center by David Carson.

Billy John Galloway, 41, was executed by lethal injection on 13 May 2010 in Huntsville, Texas for killing a man during a robbery.

Late in the summer of 1998, Galloway, then 29; his girlfriend, Deannee Bayless, 30; his friend, Kevin Varga, 29; and Varga's girlfriend, Venus Anderson, 17 - all of whom were on probation or parole in South Dakota - gathered up their belongings, loaded up Galloway's vehicle, and left South Dakota, intending to travel to Mexico.

After a few days, the group arrived in Wichita, Kansas, and checked into a hotel. They made plans to "roll" someone - i.e., to lure someone back to the hotel to blackmail or rob him. Varga instructed Anderson to choose someone who appeared old and weak, and not too heavy. Varga then stayed in the hotel room, while Galloway, Bayless, and Anderson went to a bar. Anderson and Bayless pretended to be sisters. Anderson picked up David McCoy, while Bayless pretended to pick up Galloway. Bayless talked McCoy into returning to the hotel with them. Once there, Varga emerged from the bathroom with a metal pole and beat McCoy to death. The men then wrapped his body in a blanket and put it in their vehicle. The group then left Witchita, driving both Galloway and McCoy's cars. After Galloway's vehicle broke down, they abandoned it in a parking lot with the body still inside.

On 7 September, the group arrived in Greenville, Texas. They decided to roll another victim. Bayless and Anderson went to a motel, met David Logie in the lounge, and convinced him to go eat with them. With Bayless driving Logie's rental car, they left the parking lot together. Varga and Galloway followed them in McCoy's car. After a short time, Bayless pulled over near a building in a deserted area, ostensibly so that she and Logie could have sex on the hood. Logie exited the car with her. Varga and Galloway then appeared and began attacking Logie. Galloway struck him with his fists and knocked him down. He pleaded for his life for several minutes while Galloway beat him. Varga then handed Galloway an object, and the beating continued until Logie was dead. The group took Logie's wallet and credit cards and dragged his body into the woods. They burned McCoy's car and left Greenville in Logie's car. Police found a ball peen hammer and a tree limb near the body.

The group proceeded to San Antonio. Bayless and Anderson used Logie's credit cards at a shopping mall. Police followed them from the mall, discovered that their car was stolen, and pulled them over in a parking lot. After an officer separated the women, Anderson confessed to the murders, and she and Bayless were arrested. Varga and Galloway were subsequently arrested at a strip club.

According to Anderson's testimony, the original plan the group devised in Wichita was for her to lure a man back to the room and that once his pants were down, Varga would emerge from hiding and blackmail him. However, she did testify that before she left the room, she saw Varga swinging a metal pole and heard him remark that it was "too long." Although she wasn't in the room while Logie was killed, she heard a lot of thumping sounds, then heard Galloway tell Varga, "That's enough."

Anderson further testified that after McCoy's murder, her three co-defendants began "jumping around and hugging each other and kissing each other and coming up to me and hugging me and asking me if I was all right and telling me it was all right ... the first murder was always that way, you know..." When Bayless found only $80 in McCoy's wallet, Galloway started kicking and spitting on McCoy's body and calling him names.

Galloway had prior felony convictions in South Dakota for grand theft and attempted robbery. He was sentenced to 8 years and 6 years, respectively, for those convictions. He met Varga in prison, where they were cellmates. Galloway had been on parole for about three months when he left South Dakota.

In January 1990, after using cocaine, heroin, PCP, and LSD, Galloway struck himself in the face with a hammer, causing the loss of two teeth.

While awaiting trial, Galloway escaped from the county jail. He stabbed an officer numerous times with a shank, but the officer's bulletproof vest prevented serious injury. Galloway was captured about 90 minutes later.

A jury convicted Galloway of capital murder in November 1999 and sentenced him to death. The Texas Court of Criminal Appeals affirmed the conviction and sentence in January 2003. All of his subsequent appeals in state and federal court were denied.

Kevin Scott Varga was convicted of capital murder and sentenced to death. He was executed one day before Galloway. Deannee Anne Bayless was convicted of murder and sentenced to 40 years in prison. In custody as of this writing, she becomes eligible for parole in 2018. Venus Joy Anderson received limited immunity in exchange for her testimony against the others. She served seven years in prison.

"People are trying to make me a monster," Galloway said in an interview from death row. "I'm not a monster. I made some bad decisions in my life." On the other hand, Galloway said he persuaded the others to make the fateful road trip to Mexico with him out of a "Manson complex". Galloway did not make any last-day legal moves to attempt to prevent his execution. "I guess I've come to the realization that this is it," he said.

David Logie's father and widow attended Galloway's execution, as did Galloway's father and stepmother and a friend. "If I can go back and change the past, I would," he said, looking at his victim's loved ones. "There's nothing I can do. I'm sorry." Galloway then expressed love to his friend. "That's it," he said to conclude his last statement. The lethal injection was then started. He was pronounced dead at 6:19 p.m.

Houston Chronicle

"Killer executed for '98 robbery-slaying near Dallas; A day before, South Dakota parolee's ex-cellmate was put to death for same crime," by Michael Graczyk. (Associated Press May 13, 2010, 7:17PM)

HUNTSVILLE — A South Dakota parolee condemned for killing an Army officer during a robbery and beating in Texas was put to death Thursday evening, a day after his former cellmate was executed for the same crime.

Billy Galloway had a long, violent history culminating in the slaying of David Logie, 37, in September 1998. The Army major from Fayetteville, N.C., was bludgeoned with a hammer and a tree limb behind a building in Greenville, about 50 miles northeast of Dallas. It was one of two slayings blamed on Galloway and Kevin Varga during a weeklong cross-country crime spree.

Varga, 41, received lethal injection Wednesday evening. Twenty-four hours later, Galloway, also 41, was belted to the same gurney, had needles inserted into his heavily tattooed arms and became the ninth prisoner executed this year in the nation's most active death penalty state.

“If I can go back and change the past, I would,” Galloway said, looking at Logie's father and widow, who were among people watching through a window. “There's nothing I can do. I'm sorry.” He looked toward another window, where his father and stepmother stood in an adjacent room with a friend. He told the friend that he loved her. “That's it,” Galloway said. He gasped slightly, then began snoring quietly. Ten minutes later, at 6:19 p.m. CDT, as his pale skin turned purple, he was pronounced dead.

“If our beloved David had to die, we are glad it was in Texas where justice is their main goal,” Logie's widow, Diann, said. “His death left a void in our lives and hearts that can never be filled. Our lives will never be the same for as long as we live.” Logie's father, Jack, dismissed Galloway's apology and Varga's more extensive but similar comments from the death house Wednesday. “I cannot forgive,” he said.

Galloway's appeals to the courts were exhausted and no last-day legal actions were filed. “I guess I've come to the realization that this is it,” Galloway recently told The Associated Press.

Galloway and Varga met in prison in South Dakota. Varga was paroled in May 1998 after serving about half of a 10-year term for grand theft. Galloway, originally from Onondaga, N.Y., was paroled a month later. He served time for theft, parole violation and attempted robbery. Galloway credited his charisma and what he called his “Manson complex” for being able to persuade his girlfriend, Deannee Bayless, Varga and Varga's 17-year-old girlfriend, Venus Joy Anderson, to make a road trip from South Dakota to Mexico. Z

Anderson testified that Varga proposed they would finance the trip using a scam in which the women offered sex to men along the way. Then, Galloway and Varga would ambush and rob the victims. Their first target was David McCoy, 48, in Wichita, Kan. McCoy's body was found wrapped in sheets in Galloway's SUV abandoned a few blocks from where he was beaten to death. The group wasn't tried for his slaying. A day later, they robbed and killed Logie, an aviation analyst at Fort Bragg, N.C., who was in Texas on business.

Testimony showed Anderson and Bayless propositioned Logie at a Holiday Inn bar in Greenville. When they went to a deserted area behind a building, Galloway and Varga showed up. Police said a hammer and bloody tree limb were found near Logie's battered body, which the four dragged into some woods and set on fire.

“A pretty violent son of a gun, a nasty dude,” prosecutor Keith Willeford, a former Hunt County district attorney, said of Galloway. “These were brutal, horrible murders, just absolutely disgusting.” Authorities eventually arrested the four in San Antonio after a routine police license check showed their car was stolen.

Anderson, from Revillo, S.D., served a reduced seven-year prison term in exchange for her testimony. Bayless, from Sioux Falls, is serving 40 years for murder. She's not eligible for parole until 2018.

While awaiting trial, Galloway escaped from the county jail. He was captured about 90 minutes later. During the break, Willeford said Galloway stabbed an officer numerous times with a shank but that the officer's bulletproof vest prevented serious injury. “People are trying to make me a monster,” Galloway said. “I'm not a monster. I made some bad decisions in my life.”

At least eight other Texas inmates have execution dates approaching. Next week, Rogelio Cannady, 37, is set to die for killing a fellow Texas inmate while already locked up for a double murder.

Huntsville Item

"Second S.D. ex-con in 2 days executed for 1998 murder," by Mary Rainwater. (May 14, 2010)

HUNTSVILLE — Former South Dakota resident Billy John Galloway had few words to say before he was executed Thursday for the 1998 robbery-slaying of Maj. David Logie in Greenville. Galloway, 41, was the second death row inmate in as many days to be put to death by lethal injection for the murder of Logie, an army officer from Fayetteville, N.C. Another former South Dakotan, Kevin Scott Varga, also 41, was executed for his role in the crime at the Huntsville Unit on Wednesday.

“If I can go back and change the past I would,” Galloway said from the gurney of the cell-sized execution room, addressing Logie’s father, Jack Logie, and his widow, Diann Logie. “There’s nothing I can do. I am sorry.” Galloway then turned his attention to his family, father William Galloway, step mother Mary Galloway, friend Adonya Buzinis and spiritual advisor Kathryn Cox. “I love you, Adonya,” he said. “That’s it.”

Galloway kept eye contact with his family as the lethal injection began to flow through his system, beginning at 6:09 p.m., and concluding five minutes later, at 6:14 p.m. He was pronounced dead at 6:19 p.m., the same time Varga was pronounced just 24-hours prior.

Galloway’s execution gave Logie’s family some closure for the tragic death of their loved one, they said, but was little consolation for the fact that Logie was no longer with them. “The fate of these individuals was determined by them,” Diane Logie said about Galloway and Varga during a press conference after the execution. “They are solely responsible for the reason we are all gathered here.”

Diann Logie went on say that their experience in dealing with her husband’s death changed their perspective on how they view the death penalty. “(Galloway and Varga experienced) a much more humane death than they inflicted on their victims,” she said. “They (were) able to say good-bye to their families and express their love, which is more than what was granted for us. “If our beloved David had to die, we are glad it was in Texas where justice is their main goal.”

When asked their feelings on Galloway’s apology and Varga’s request for forgiveness, Jack Logie did not hesitate to respond with, “I cannot forgive them.” Logie’s mother, Norma Logie, felt differently, silently mouthing the words, “I can.”

Billy Galloway had a long, violent history culminating in the slaying of David Logie, 37, in September 1998. The Army major was bludgeoned with a hammer and a tree limb behind a building in Greenville. Galloway and Varga met in prison in South Dakota. Varga was paroled in May 1998 after serving about half of a 10-year term for grand theft. Galloway, originally from Onondaga, N.Y., was paroled a month later. He served time for theft, parole violation and attempted robbery.

Galloway credited his charisma and what he called his “Manson complex” for being able to persuade his girlfriend, Deannee Bayless, Varga and Varga’s 17-year-old girlfriend, Venus Joy Anderson, to make a road trip from South Dakota to Mexico.

Anderson testified that Varga proposed they would finance the trip using a scam in which the women offered sex to men along the way. Then, Galloway and Varga would ambush and rob the victims. Their first target was David McCoy, 48, in Wichita, Kan. McCoy’s body was found wrapped in sheets in Galloway’s SUV abandoned a few blocks from where he was beaten to death. The group wasn’t tried for his slaying. A day later, they robbed and killed Logie, who was in Texas on business. Authorities eventually arrested the four in San Antonio after a routine police license check showed their car was stolen.

Anderson, from Revillo, S.D., served a reduced seven-year prison term in exchange for her testimony. Bayless, from Sioux Falls, is serving 40 years for murder. She’s not eligible for parole until 2018.

While awaiting trial, Galloway escaped from the county jail. He was captured about 90 minutes later. During the break, Galloway stabbed an officer numerous times with a shank but the officer’s bulletproof vest prevented serious injury.

ProDeathPenalty.Com

During the late summer of 1998, Billy Galloway, his girlfriend, Deannee Bayless, Galloway's friend Kevin Varga, and Varga's girlfriend, Venus Joy Anderson, were all on probation or parole with the South Dakota Department of Corrections. On September 1, 1998, the four gathered their money and belongings, loaded up Galloway's automobile, and left South Dakota.

A few days later, the group arrived in Wichita, Kansas, and checked into a hotel. That evening, after discussing a plan to lure someone back to the hotel to blackmail or rob them, Galloway, Anderson, and Bayless went to a bar. According to Anderson, the group discussed "rolling" someone. When she asked what this meant, her cohorts explained that it entailed enticing an older man with money back to a hotel room and then blackmailing him after the others caught him in a compromising position. At the bar, the three met David McCoy, and Bayless talked him into returning to the hotel with them. Once there, the men killed McCoy, wrapped his body in a blanket, and loaded it into Galloway's vehicle. Driving both Galloway's vehicle and McCoy's car, the group headed out of Wichita. After Galloway's automobile stopped running, they abandoned it in a parking lot with McCoy's body still inside.

The group arrived in Greenville, Hunt County, Texas, September 7, 1998. Galloway and Varga wanted more money, so they agreed to engage in the same pickup scheme that they had used in Kansas. Shortly thereafter, Bayless and Anderson met David Logie at the Holiday Inn and convinced him to go eat with them. With Bayless driving Logie's rental car, the three left the Holiday Inn parking lot. Galloway and Varga surreptitiously followed them in McCoy's car. Shortly thereafter, Bayless pulled off the road near a building. Bayless got out of the car with Logie and told Anderson that she and Logie were going to have sex on the hood of his car. About this time, Galloway appeared and began cursing and hitting Logie with his fist, knocking him down. Varga repeatedly struck Logie with a log, killing him. Bayless took Logie's wallet and credit cards. The group burned McCoy's vehicle and left Greenville in Logie's rental car.

The group traveled to San Antonio, where Bayless and Anderson used the credit cards Bayless had stolen from Logie at a local mall. As they were leaving the mall parking lot, the women noticed a police car behind them, and they pulled into a nearby Wal-Mart parking lot. The officer approached and separated the two women. After Anderson confessed to the murders, officers arrested Bayless and Anderson. Galloway and Varga were arrested later that night. Based on the information Anderson gave in her confession, the authorities located Logie's body near Greenville and notified Kansas authorities about McCoy's murder. Galloway's accomplice Kevin Varga is scheduled to be executed the previous day.

UPDATE: “If I can go back and change the past, I would,” Galloway said, looking at Logie's father and widow, who were among people watching through a window. “There's nothing I can do. I'm sorry.” He looked toward another window, where his father and stepmother stood in an adjacent room with a friend. He told the friend that he loved her. “That's it,” Galloway said. He gasped slightly, then began snoring quietly. Ten minutes later, at 6:19 p.m. CDT, as his pale skin turned purple, he was pronounced dead. “If our beloved David had to die, we are glad it was in Texas where justice is their main goal,” Logie's widow, Diann, said. “His death left a void in our lives and hearts that can never be filled. Our lives will never be the same for as long as we live.” Logie's father, Jack, dismissed Galloway's apology and Varga's more extensive but similar comments from the death house Wednesday. “I cannot forgive,” he said.

Rapid City Journal

"Executions fit a heinous crime." (Friday, May 14, 2010 6:00 am)

As the end neared, his mother's prayers and pleas for mercy fell on deaf ears. Kevin Varga was executed by lethal injection Wednesday for the 1998 murder of David Logie, who was beaten to death with a hammer and a tree limb. The brutal slaying took place four months after Varga was released from the South Dakota penitentiary. Billy Galloway, who met Varga in prison and lent a hand in Logie's murder, was executed yesterday.

Varga made a lot of bad choices throughout his life, including the location of his most heinous crime. Texas is known for its liberal use of the death penalty. Varga was the eighth death row inmate to be executed there, this year. Galloway yesterday became the ninth, with two more planned before month's end. Varga also was the 455th person to die by lethal injection in Texas since the U.S. Supreme Court reinstated the death penalty in 1982.

South Dakota, where both men lived prior to the Texas murder, has executed only one person is the last six decades. Not that we're judging the consequence of their heinous acts, which also included the murder of another man in Kansas the day before Logie's death. If ever a crime called for the death penalty, the cruel and senseless murder of Logie would be among them.

Of course, Texas is bigger and more heavily populated than South Dakota, and therefore has more crime and violence. All things considered, though, Texas seems to prefer retribution when it comes to punishing murderers. Whether you favor the death penalty or not, any death is a tragedy for the grief-stricken families left behind.

Varga is survived by a son, a stepson, and his mother, Beth, who lives in Rapid City. All of them spent time with Varga before he died. His mother was there when he took his last breath. We extend our condolences to them, and to the victim's family. Logie's father also was on hand to witness the executions of Varga and Galloway.

If that gave him any sense of closure or some small bit of peace, it's the least he and the rest of his family deserve. The executions rid the world of two murderers who, in death, met the same fate they imposed on their victims. There's no joy in that, but justice has been served.

Alive e.V.

In Memoriam Billy Galloway
Billy was executed by the state of Texas on May 13th, 2010.

This was his pen friend request:

Age: 37
Weight: 210

Hello, how are you doing out there? I hope all is well and going your way. About myself: Ii was born in Chemung, New York. I then moved with my Dad to Houston, Texas. I was 4 years old. We stayed for 32 years from there we moves to North folk Virginia. And once again only stayed there a few years. And from there we moved to Sioux Falls, South Dakota where we remained until I wound up here. I have been on death row for a little over 5 years. I landed on this Unit March 27, 2000.

Now about my daily routine/ I work out 5 days a week. I felt it is important to do this for the simple fact that to me laying around doing nothing and being lazy is a sign of giving up and I am not a quitter! So even though I am skip a day now and then on working out, I still go to recreation every day. Just to get out of this cell 23 hours a day. And every day you get one hour of recreation in the day room or outside. We go outside 2 times a week. Rain or shine I’m there. When in my cell I listen to my radio and draw or read or write poems. I just started drawing again. Sometimes I wish I would have just left it alone. But it is something I like to do and I can go at it and get lost for hours. I like to read horror books and true crime novels. I like Stephen King, James Petterson, Clive Barker and a bunch of others. For the true crimes type novels I like John Grisham, David Baldacci.

The poems I write are more therapeutic that anything. You know, my way to express myself without getting into trouble. My hobbies in the free world were four wheeling in this big black 1979 Ford Bronco that could and would go into and through everything. There was not anything I would not try in that bad boy. I liked going to the parks and kicking back. Mostly going to the falls and watching all the water. It was pretty cool.

I liked hanging out with my friends and playing Hacky Sack and cooking out. Just enjoying the days. I like taking roads trips because they were pretty much spur of a moment type things and you never really knew where you would end up. I like kicking it with my dogs. I had a couple of Rottweilers this last time. Before that I had a Pit bull. They were my kids since I don’t have any children.

Anyway, I think I will wrap this up for now. Hopefully I peaked someone’s interest level a bit and if you decide to write me. I will answer all. This introductory letter may sound a bit boring but believe me I am not a boring person.

The sooner you write, the sooner I will be able to answer you and you will find out that what I say is true.” I am not a boring person J “ All right now, you all take it easy out there and I hope to hear from someone soon…later.

Respectfully yours,
Billy John Galloway

Galloway v. State, Not Reported in S.W.3d, 2003 WL 1712559 (Tex.Crim.App. 2003). (Direct Appeal)

Defendant was convicted following jury trial in Hunt County of capital murder and was sentenced to death. On automatic direct appeal, the Court of Criminal Appeals, Johnson, J., held that: (1) evidence was legally and factually sufficient to support conviction; (2) indictment for capital murder, on a theory of more than one murder committed pursuant to same scheme of conduct, did not allege a legal impossibility on basis that aggravating murder allegedly occurred in another state two days prior to primary murder; (3) defendant did not show equal protection violation based on allegedly more favorable treatment of female co-defendants by prosecutor; (4) victim impact testimony was relevant to issue of mitigation at penalty phase, in absence of any indication that defendant affirmatively waived submission of mitigation issue; (5) prosecutor did not engage in improper final argument at penalty phase by playing videotape of heavy metal concerts that had been admitted at trial with no restrictions; (6) death sentence was not cruel and unusual punishment in view of evidence that defendant intended the killing take place; and (7) that aggravating element that raised Texas murder to a capital murder was committed partly or entirely outside of Texas did not render indictment, or penal provision on which it was based, unconstitutional, nor did use of that aggravating element violate due process. Affirmed. Meyers, J., filed a dissenting opinion.

STATEMENT OF FACTS

During the late summer of 1998, appellant, his girlfriend, Deannee Bayless, appellant's friend Kevin Varga, and Varga's girlfriend, Venus Joy Anderson, were all on probation or parole with the South Dakota Department of Corrections. On September 1, 1998, the four gathered their money and belongings, loaded up appellant's automobile, and left South Dakota.

A few days later, the group arrived in Wichita, Kansas, and checked into a hotel. That evening, after discussing a plan to lure someone back to the hotel to blackmail or rob them, appellant, Anderson, and Bayless went to a bar. FN2 At the bar, the three met David McCoy, and Bayless talked him into returning to the hotel with them. Once there, the men killed McCoy, wrapped his body in a blanket, and loaded it into appellant's vehicle. Driving both appellant's vehicle and McCoy's car, the group headed out of Wichita. After appellant's automobile stopped running, they abandoned it in a parking lot with McCoy's body still inside.

FN2. According to Anderson, the group discussed “rolling” someone. When she asked what this meant, her cohorts explained that it entailed enticing an older man with money back to a hotel room and then blackmailing him after the others caught him in a compromising position.

The group arrived in Greenville, Hunt County, Texas, September 7, 1998. Appellant and Varga wanted more money, so they agreed to engage in the same pickup scheme that they had used in Kansas. Shortly thereafter, Bayless and Anderson met David Logie at the Holiday Inn and convinced him to go eat with them. With Bayless driving Logie's rental car, the three left the Holiday Inn parking lot. Appellant and Varga surreptitiously followed them in McCoy's car. Shortly thereafter, Bayless pulled off the road near a building. Bayless got out of the car with Logie and told Anderson that she and Logie were going to have sex on the hood of his car. About this time, appellant appeared and began cursing and hitting Logie with his fist, knocking him down. Varga repeatedly struck Logie with a log, killing him. Bayless took Logie's wallet and credit cards. The group burned McCoy's vehicle and left Greenville in Logie's rental car.

The group traveled to San Antonio, where Bayless and Anderson used the credit cards Bayless had stolen from Logie at a local mall. As they were leaving the mall parking lot, the women noticed a police car behind them, and they pulled into a nearby Wal-Mart parking lot. The officer approached and separated the two women. After Anderson confessed to the murders, officers arrested Bayless and Anderson. Appellant and Varga were arrested later that night. Based on the information Anderson gave in her confession, the authorities located Logie's body near Greenville and notified Kansas authorities about McCoy's murder.

SUFFICIENCY OF THE EVIDENCE

Appellant's fifth point of error asserts that the evidence was legally and factually insufficient to show that he participated in any of the alleged conduct in Kansas and Texas or that he was guilty as a party to the offense of capital murder, and that the jury finding was irrational because it could not have found the essential elements of the crime beyond a reasonable doubt. Specifically, he asserts that: 1) the evidence is legally and factually insufficient to show that he participated in any of the alleged conduct in Kansas and Texas; 2) the evidence is insufficient to show that he acted as a party to the offense; 3) the pleading created a fatal variance of proof in that the indictment alleged no principal actor and, therefore, the state could not show that a principal formed the intent to kill or that appellant joined in on that intent; and 4) the evidence is insufficient because the accomplice-witness testimony is not sufficiently corroborated. This single point encompasses numerous theories of law, and is therefore multifarious. Tex.R.App. P. 38.1(h); see also Wood v. State, 18 S.W.3d 642, 649 n. 6 (Tex.Crim.App.2000). However, because of the gravity of the penalty imposed in this case, we will address the legal and factual sufficiency of the evidence and the accomplice-witness corroboration rule.

Article 38.14 states, “A conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed; and the corroboration is not sufficient if it merely shows the commission of the offense.” In conducting a sufficiency review under the accomplice-witness rule, the reviewing court must eliminate the accomplice testimony from consideration and then examine the remaining evidence to determine whether there is sufficient evidence that “tends to connect” the accused with the commission of the crime. Solomon v. State, 49 S.W.3d 356, 361 (Tex.Crim.App.2001). We have held that “a defendant's presence at the scene and participation in the underlying offense [is] sufficient to connect him to the capital murder for accomplice-witness rule purposes.” Id. at 362. We have also held that evidence that the defendant “was in the company of the accomplice at or near the time or place of the offense is proper corroborating evidence.” McDuff v. State, 939 S.W.2d 607, 613 (Tex.Crim.App.), cert. denied, 522 U.S. 844, 118 S.Ct. 125, 139 L.Ed.2d 75 (1997). If sufficient evidence exists which tends to connect appellant with the commission of the crime, the Court then reviews the legal sufficiency of the evidence by looking at all of the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

Non-accomplice evidence in the instant case showed that authorities found appellant's SUV with David McCoy's body in the back of it in a parking lot near the motel in Kansas where McCoy had been murdered. Hunt County authorities found David Logie's body near McCoy's burned-out car. The police in San Antonio recovered Logie's rental car from two of appellant's co-defendants. They also found appellant's belongings in the trunk of Logie's car and in the same hotel where the other three defendants were staying. At the time of his arrest, Varga was wearing shoes that had on them blood from both McCoy and Logie. At the time of his arrest, appellant was wearing a new pair of shoes which matched a pair purchased in San Antonio with Logie's credit card. The group paid for the San Antonio hotel room where appellant and his co-defendants stayed with Logie's credit card. All of this non-accomplice evidence tended to connect appellant to this offense. See Trevino v. State, 991 S.W.2d 849, 852 (Tex.Crim.App.1999)(holding presence of defendant's blood on victim's panties and defendant's pant fibers on victim's clothes tended to connect defendant to crime); Gosch v. State, 829 S.W.2d 775, 782 (Tex.Crim.App.1991), cert. denied, 509 U.S. 922, 113 S.Ct. 3035, 125 L.Ed.2d 722 (1993)(holding non-accomplice evidence sufficient to “tend to connect” defendant where, among other evidence, defendant was arrested after police found clothes in his possession which were splattered with blood of same type as that of victim). There is sufficient non-accomplice evidence to connect appellant with the commission of the offense and to corroborate the accomplice testimony. Viewing all of the evidence in the light most favorable to the verdict, we hold that the evidence is legally sufficient to support the jury's verdict of guilty.

In reviewing factual sufficiency, we view all of the evidence, not in the “light most favorable to the verdict” perspective, but rather in a neutral light favoring neither side. Vasquez v. State, 67 S.W.3d 229, 236 (Tex.Crim.App.2002); Wesbrook v. State, 29 S.W.3d 103, 111-12 (Tex.Crim.App.2000), cert. denied, 532 U.S. 944, 121 S.Ct. 1407, 149 L.Ed.2d 349 (2001); Kutzner v. State, 994 S.W.2d 180, 184 (Tex.Crim.App.1999). A reviewing court that conducts a factual sufficiency review of the elements of a criminal offense “asks whether a neutral review of all of the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof.” Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App.2000).

After reviewing the evidence in the requisite neutral light, we find that evidence that tends to prove appellant's guilt is strong, and we have found no record evidence that tends to disprove his guilt; we cannot conclude that the guilty verdict is clearly wrong or manifestly unjust. Therefore, we hold that the evidence is factually sufficient. Ladd v. State, 3 S.W.3d 547, 557 (Tex.Crim.App.1999), cert. denied, 529 U.S. 1070, 120 S.Ct. 1680, 146 L.Ed.2d 487 (2000). After finding the evidence legally and factually sufficient to sustain appellant's conviction, we overrule point of error five.

In his sixth point of error, appellant complains that the evidence is legally and factually insufficient “to show that Appellant knew that co-actor Kevin Varga was in possession of a deadly weapon at the time of the commission of the offense, such that Appellant could not have known or anticipated that a life would be taken.” Non-accomplice proof or corroboration of accomplice testimony regarding a specific fact is not required under the law as long as sufficient evidence is presented to prove each element of a crime beyond a reasonable doubt. See point of error five, supra, and Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Point of error six is overruled.

VALIDITY OF THE INDICTMENT AND JURISDICTION

Appellant alleges in his first point of error that an attorney who was not a proper representative of the state presented the indictment to the grand jury. Specifically, he asserts that the attorney purporting to represent the state in the grand jury worked for the District Attorney elected in the 196th Judicial District and, as such, he was not authorized to appear before the grand jury of the 354th Judicial District which indicted appellant. Appellant asserts that because the prosecutor was not entitled to appear before a grand jury in the 354th Judicial District, the indictment is therefore void. See Tex. Gov't Code §§ 24.375 (“The 196th Judicial District is composed of Hunt County”), 24.500 (“The 354th Judicial District is composed of Hunt and Rains counties”), and 43.164 (“The voters of the 196th Judicial District elect a district attorney”).

The grand jury, not the district attorney, is ultimately responsible for the return of a “true bill” or a “no-bill” in a case. State ex rel. Holmes v. Salinas, 784 S.W.2d 421, 426 (Tex.Crim.App.1990). Further, the grand jury has the authority to review matters that have not been presented by the state but are known about by some member of the panel. Id. That an improper person may have questioned witnesses in front of the grand jury in violation of Articles 20.03 and 20.04 did not render the subsequent indictment void. Rather, this issue is subject to a harm analysis. See Sanders v. State, 978 S.W.2d 597, 599-600 (Tex.App.Tyler 1997, pet. ref'd) and Smith v. State, 36 S.W.3d 134, 136-38 (Tex.App.-Houston [14th Dist.] 2000, pet. ref'd); see also Cain v. State, 947 S.W.2d 262, 264 (Tex.Crim.App.1997)(holding that, except for certain federal constitutional errors labeled by the United States Supreme Court as “structural,” no error is categorically immune to a harmless error analysis). Because of the independent nature of the grand jury, the record does not support a finding of harm in this case, even assuming that error occurred. The grand jury's subsequent presentment of the indictment to the trial court invested that court with jurisdiction of this cause. Tex. Const. art. V, § 12(b); see also Art. 20.01, et sec. Appellant's first point of error is overruled.FN3

FN3. Appellant further asserts in this same point of error that because the attorney purporting to represent the state worked for the District Attorney elected in the 196th Judicial District, he had no authority to prosecute the case in the 354th Judicial District Court. Because the issue of a person's authority to prosecute a case encompasses a different area of the law than the validity of an indictment and who may appear before a grand jury, we hold that the remainder of his point is multifarious, and we will not address it. See Tex.R.App. P. 38.1; see also Dunn v. State, 951 S.W.2d 478, 480 (Tex.Crim.App.1997).

In his second point of error, appellant argues that the second paragraph of the indictment against him fails to allege an offense and, in fact, alleges a legal impossibility. Thus, he submits that the trial court erred in failing to quash the second paragraph.

The second paragraph of appellant's indictment reads as follows: On or about the 8th day of September 1998, in the County of Hunt and the State of Texas, [appellant], acting together with Kevin Scott Varga, Deannee Ann Bayless and Venus Joy Anderson, did then and there intentionally and knowingly cause the death of an individual, David Lawrence Logie, by striking and beating the said David Lawrence Logie about the head with a hammer, and/or by striking and beating the said David Lawrence Logie about the head with a tree limb or tree limbs, and/or by striking and beating the said David Lawrence Logie about the head and neck with fists and feet, and the said [appellant], acting together with Kevin Scott Varga, Deannee Ann Bayless and Venus Joy Anderson, did murder another person during a different criminal transaction but pursuant to the same scheme or course of conduct in that on or about the 6th day of September, 1998, in Sedgwick [C]ounty, State of Kansas, [appellant], acting together with Kevin Scott Varga, Deannee Ann Bayless and Venus Joy Anderson, did intentionally and knowingly cause the death of an individual, David L. McCoy, by striking and beating the said David L. McCoy about the head with a metal rod or pole, and/or by striking and beating the said David L. McCoy about the head and neck with fists and feet; against the peace and dignity of the State.

In his point of error, appellant claims that the language of this paragraph is “repugnant on [its] face.” Without citing any authority in support of his proposition, appellant asserts that it is both legally and factually impossible for the defendants to be convicted of committing two murders during the same scheme or course of conduct when one of those murders was committed two days earlier in another state. See Tex. Penal Code § 19.03(a)(7)(B). Appellant insists that “[i]f the state is to allege the same scheme or course of conduct transaction, it must first allege the first predicate murder and [then] allege the second subsequent murder.” He also contends that in order to allege that two murders were committed during the same scheme or course of conduct, the state must allege the murders as they chronologically occurred, but that in the instant case the state was barred from doing so because the first murder was committed outside the state of Texas, i.e. in Kansas. Appellant asserts that, because evidence of a Kansas murder was presented during guilt/innocence, he was “irreparably prejudiced” and “[t]he indictment should be quashed and the case reversed and remanded to the trial court.”

Nothing in the statute requires that the murders occur in a certain time frame or in a geographically limited area. See Corwin v. State, 870 S.W.2d 23, 28 (Tex.Crim.App.1993), cert. denied, 513 U.S. 826, 115 S.Ct. 95, 130 L.Ed.2d 44 (1994). Corwin involved the murders, during the same scheme or course of conduct, of three women in three different counties over the course of nine months. We held that the evidence was sufficient for a rational jury to find that Corwin committed the murders pursuant to the same course of conduct even though they occurred over a period of several months and in various geographic locations. Id. at 28-29. We do not agree that the second paragraph in appellant's indictment fails to allege an offense or alleges a legal impossibility as asserted by appellant's second point. Point of error two is overruled.

In his third point of error, appellant asserts that the trial court had no jurisdiction to consider paragraph two of the indictment, which should have been quashed, because the second murder alleged in the paragraph occurred not only outside of the borders of the county but indeed outside of the borders of the state; and that the trial court should have therefore quashed the indictment. Appellant is mistaken in his interpretation of the paragraph.

Texas Penal Code section 19.03 defines the offense of capital murder as murder plus some aggravating element. See, e.g., Patrick v. State, 906 S.W.2d 481, 491 (Tex.Crim.App.1995), cert. denied, 517 U.S. 1106, 116 S.Ct. 1323, 134 L.Ed.2d 475 (1996); Hughes v. State, 897 S.W.2d 285, 295 (Tex.Crim.App.1994), cert. denied, 514 U.S. 1112, 115 S.Ct. 1967, 131 L.Ed.2d 857 (1995). Section 19.03(a)(7)(B) defines one form of capital murder as the murder of one person plus the additional murder of a second person, which murder was committed during a different criminal transaction but pursuant to the same scheme or course of conduct as the charged murder. Appellant is charged under this provision of the statute with the murder of David Logie (committed in Hunt County, Texas) aggravated by the additional murder of David McCoy (committed outside of Texas, but pursuant to the same scheme or course of conduct as Logie's murder). Because the primary murder occurred in Hunt County, Texas, this state has the authority to prosecute the offense even though some of the elements of the aggravating offense occurred outside the state's boundaries. The statute explicitly authorizes prosecution for murder in the county in which the body was found. See Art. 13.05. FN4 Logie's body was found in Hunt County. Appellant's third point of error is overruled.

FN4. Article 13.05 provides that: The offense of criminal homicide committed wholly or in part outside this [s]tate, under circumstances that give this [s]tate jurisdiction to prosecute the offender, may be prosecuted in the county where the injury was inflicted, or in the county where the offender was located when he inflicted the injury, or in the county where the victim died or the body was found. (Emphasis added.)

EQUAL PROTECTION

In his fourth point of error, appellant argues that his prosecution for capital murder and exposure to a potential death sentence was based solely upon his gender, thus denying him Equal Protection under the Fourteenth Amendment to the United States Constitution. Appellant notes that, while the state tried, convicted, and sentenced him to death for his involvement in the instant offense, the prosecution gave both of the women involved plea bargains for a lesser charge and punishment.FN5 He asserts that this evidence establishes gender discrimination in the exercise of prosecutorial discretion.

FN5. The state also tried Varga, the other male involved, for capital murder. The jury convicted Varga and, as required by the jury's findings on the special issues, the court sentenced him to death.

The United States Supreme Court has stated that “the decision to prosecute may not be ‘deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification ....‘ “ Wayte v. United States, 470 U.S. 598, 608, 105 S.Ct. 1524, 84 L.Ed.2d 547 (1985)(quoting Oyler v. Boles, 368 U.S. 448, 456, 82 S.Ct. 501, 7 L.Ed.2d 446 (1962)). However, an appellant who raises the issue of equal protection in this context has the burden of proving the existence of purposeful discrimination by providing “exceptionally clear evidence” that the state decided to prosecute for an improper reason. Green v. State, 934 S.W.2d 92, 102-03 (Tex.Crim.App.1996)(quoting County v. State, 812 S.W.2d 303, 308 (Tex.Crim.App.1989)). Appellant has not provided exceptionally clear evidence for his claim, nor does the record support it.FN6 The evidence presented throughout the instant case showed that the four persons involved in the charged offense acted with varying degrees of involvement. The differences in charging and punishment indicate that the prosecutor weighed each individual's culpability as well as the state's ability to prove each case when making the decision about whom to prosecute and for what. Appellant has not shown discriminatory intent on the part of the prosecutor. Appellant's fourth point of error is overruled.

FN6. In his brief, appellant directs us to a volume and page numbers (specifically “CRR-Vol. 32, pages 54-59”) where his motion underlying this point of error was argued. A review of the cited section does not show a hearing on such a motion, nor could we find a record of such a hearing elsewhere. The absence of any reference to the motion in the reporter's record raises the question of whether the motion was presented to the trial court. This, in turn, raises the question of whether the asserted error was preserved. See Tex.R.App. P. 33.1.

VICTIM-IMPACT AND MITIGATION EVIDENCE

Appellant submits in his seventh point of error that the trial court erred in failing to strike victim-impact testimony from the jury's consideration and in failing to grant a mistrial. Specifically, appellant asserts that the state submitted victim-impact testimony in rebuttal of appellant's mitigation evidence, but that appellant had not placed any mitigation before the jury, nor had he indicated his intent to do so. Thus, appellant contends, the court should have excluded the victim-impact testimony as irrelevant.

Article 37.071, section 2(a)(1), states that “evidence may be presented by the state and the defendant or the defendant's counsel as to any matter that the court deems relevant to sentence. ...” (Emphasis added.) In Mosley v. State, this Court held that “[b]oth victim impact and victim character evidence are admissible, in the context of the mitigation special issue, to show the uniqueness of the victim, the harm caused by the defendant, and as rebuttal to the defendant's mitigating evidence.” Mosley v. State, 983 S.W.2d 249, 262 (Tex.Crim.App.1998), cert. denied, 526 U.S. 1070, 119 S.Ct. 1466, 143 L.Ed.2d 550 (1999).FN7 The Mosley Court noted that, in Powell v. State, 897 S.W.2d 307 (Tex.Crim.App.1994)(plurality), the Court had held that the former issue of deliberateness could not be waived, even at the defendant's request, because a jury finding that the state had proved the issue of deliberateness beyond a reasonable doubt was required before a death sentence could be assessed. Id at 316. (Clinton, J., concurring). In Mosley, the Court distinguished mitigation from deliberateness; under Penry v. State, 903 S.W.2d 715, 766 (Tex.Crim.App.), cert. denied, 516 U.S. 977, 116 S.Ct. 480, 133 L.Ed.2d 408 (1995), the mitigation issue carries no burden of proof for the state. Id. at 766. The Court also indicated that a defendant could render the state's victim-impact and character evidence irrelevant and therefore inadmissible by affirmatively and expressly waiving the submission of the mitigation issue. Mosley, 983 S.W.2d at 263-64.FN8 The appellant in Mosley, however, had not waived the mitigation issue, and the question was not before the Court.

FN7. We further held that Texas Rule of Evidence 403 ( prejudice v. probativeness ) limits the admissibility of such evidence when the evidence predominantly encourages comparisons based upon the greater or lesser worth or morality of the victim. Mosley, supra at 262. See also, Salazar v. State, 90 S.W.3d 330 (Tex.Crim.App.2002). Appellant has not made a Rule 403 claim on appeal.

FN8. In Jackson v. State, 33 S.W.3d 828, 833 (Tex.Crim.App.2000), cert. denied, 532 U.S. 1068, 121 S.Ct. 2221, 150 L.Ed.2d 213 (2001), we considered appellant's claim of ineffective assistance of counsel for failing to object to prosecutorial argument that urging the jury to consider victim-impact evidence in answering the future dangerousness special issue. We stated that Mosley held that victim-impact evidence of which a defendant was aware at the time he committed the crime is necessarily relevant to his future dangerousness and moral culpability. We also explicitly said that “victim impact and character evidence is relevant only insofar as it relates to the mitigation issue” and “is patently irrelevant, for example, to a determination of future dangerousness.” Mosley, supra at 263.

In Tong v. State, 25 S.W.3d 707, 711-12 (Tex.Crim.App.2000), cert. denied, 532 U.S. 1053, 121 S.Ct. 2196, 149 L.Ed.2d 1027 (2001), we explicitly stated that we had not yet decided whether a capital defendant can waive the mitigation special issue and that Mosley's holding involved the admissibility of victim-impact evidence, “not whether the special issue can be waived.” Our opinion in Ripkowski v. State, 61 S.W.3d 378, 391 n. 48 (Tex.Crim.App.2001), noted that, while Mosley had suggested that a defendant may have a right to insist upon waiving the submission of mitigation special issue, “[t]hat question would be ripe only in a case in which the trial court refused [such] a requested waiver.”

We find nothing in the record to support a finding that appellant affirmatively waived submission of the mitigation issue.FN9 The trial court was therefore within its discretion in determining that the victim-impact testimony was relevant to the question of mitigation. Point of error seven is overruled.

FN9. Appellant does not assert that he affirmatively waived submission of the mitigation special issue; rather, he asserts that the state's introduction of the complained-of victim impact evidence was erroneous because it was proffered before he had introduced any mitigation evidence himself.

IMPROPER ARGUMENT

Appellant argues in his eighth point of error that the prosecutor improperly played a videotape during his final argument at punishment.FN10 Toward the end of his closing argument, the prosecutor began to play a portion of the video for the jury. Appellant objected that, because the prosecution did not play the tape for the jury when the trial court admitted it, the jury should review it only on their own, should they want to see it. Appellant asserts that the use of the videotape in closing arguments “was inflammatory, prejudicial, and reversible error” because the tape had never been affirmatively linked to appellant and the state failed to otherwise show that he subscribed to the tenets or beliefs represented in the tape, nor that it pertained to any matters relevant to the murder. Appellant insists that the trial court “erred by not stopping the improper argument and by refusing to grant a limiting instruction concerning the tape.” He also seems to suggest that the videotape should not have even been allowed into evidence over his objection.

FN10. The video appears to be a commercially produced recording of heavy metal concerts.

Among the proper subjects of jury argument are: (1) summation of the evidence presented at trial, (2) reasonable deduction drawn from that evidence, (3) answer to the opposing counsel's argument, or (4) a plea for law enforcement. See, e.g., Jackson v. State, 17 S.W.3d 664, 673 (Tex.Crim.App.2000). Playing a videotape that was admitted at trial with no restrictions is, in effect, a summation of that evidence; the prosecutor did not engage in improper argument. In addition, the record does not reflect that appellant requested any limiting instruction when he objected to the tape being used in the jury argument. The trial court did not err in not granting “a limiting instruction concerning the tape” when appellant failed to request such.

Appellant's complaint about the trial court admitting the videotape into evidence over his objection is multifarious and inadequately briefed. See, e.g., Dunn, 951 S.W.2d at 480. However, again because of the gravity of the punishment imposed, we will address the merits of this complaint.

As stated previously, Article 37.071, section 2(a)(1), states that in the punishment phase of a capital murder trial “evidence may be presented by the state and the defendant or the defendant's counsel as to any matter that the court deems relevant to sentence ....“ We review a trial court's decision to admit or exclude evidence under an abuse of discretion standard, and will not reverse such a ruling which was within the zone of reasonable disagreement. Green v. State, 934 S.W.2d 92, 101-02 (Tex.Crim.App.1996), cert. denied, 520 U.S. 1200, 117 S.Ct. 1561, 137 L.Ed.2d 707 (1997).

The record reflects that the videotape in question was found by police in a nylon zipper bag with other items, including prescription pills “that had [appellant's] name on it.” We conclude that there was no abuse of discretion in admitting the videotape into evidence over appellant's objection. Accordingly, point of error eight is overruled.

CONSTITUTIONALITY OF STATUTES

In his ninth point of error, appellant complains that the imposition of the death penalty violated the Eighth Amendment's prohibition of cruel and unusual punishment in that the anti-parties special issue operated unconstitutionally as applied to him. Specifically, appellant alleges that the state did not show that he actually caused the death of the deceased, intended to kill the deceased, or anticipated that a life would be taken, and thus he was less morally blameworthy than his co-defendants.FN11 See Art. 37.071, § 2(b)(2).

FN11. The wording of appellant's point suggests that he may be arguing sufficiency of the anti-parties charge at punishment. However, because he cites only Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982), as his primary authority, we will confine our analysis of this point to the Eighth Amendment question addressed in Enmund and hold that any other complaint within this point is inadequately briefed. See Tex.R.App. P. 38.1.

As he did in point of error five, supra, appellant asserts that, because the accomplice-witness testimony regarding his actions during the instant offense was not sufficiently corroborated, the jury could not have reasonably found that appellant himself caused, intended, or anticipated the death of the deceased. However, as we held in point of error five, the evidence was sufficiently corroborated. Thus, the jury appropriately could use all of the evidence presented, including the accomplice-witness testimony, to determine whether appellant himself intended the death of the victim.

Because the jury could look only at appellant's participation in and culpability for the offense, the requirements of Enmund v. Florida were met, and the statute did not cause appellant to suffer cruel and unusual punishment under the Eighth Amendment. Enmund v. Florida, 458 U.S. 782, 797, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982)(holding that the Eighth Amendment does not permit imposition of the death penalty “on one ... who aids and abets a felony in the course of which a murder is committed by others but who does not himself kill, attempt to kill, or intend that a killing take place or that lethal force will be employed.”) Point of error nine is overruled.

Appellant asserts in his tenth point of error that Texas Penal Code, § 19.03(a)(7)(B), operated unconstitutionally as to him because he did not “ha[ve] notice prior to being indicted in Texas that his conduct in Kansas could make him liable for prosecution in Texas for a subsequent murder committed two days after the Kansas murder ....” Nothing in state or federal law requires that a person have such specific notice before being indicted for a crime. If a person is formally charged with a crime, the indictment is the instrument through which he is given notice of the charge against him. The indictment must be sufficiently specific to allow him to meaningfully defend himself. See generally, Tex.Code Crim. Pro. Chapter 21; see also, e.g., Gollihar v. State, 46 S.W.3d 243 (Tex.Crim.App.2001).

The state charged appellant with committing murder in Hunt County, Texas. Further, the indictment against him gave him notice of every element of that offense which the state was required to prove. That the aggravating element which raised the murder to a capital murder was committed partly or entirely outside of Texas does not render the indictment, or the penal provision on which it was based, unconstitutional, nor does its use violate due process. See arts. 13.01 and 13.05. Point of error ten is overruled.

We affirm the judgment of the trial court.

MEYERS, J., filed a dissenting opinion. I disagree with the majority's disposition of appellant's seventh point of error. Appellant asserts that the State wrongfully submitted victim impact statements by calling relatives of the victims as the first two witnesses in the punishment phase of the trial. Appellant objected to the testimony as premature and irrelevant since appellant had not placed mitigation before the jury. The majority holds that because appellant had not affirmatively waived submission of the mitigation issue, the trial court did not abuse its discretion by admitting the victim impact testimony. The majority acknowledges that this court has not yet decided whether a capital defendant can waive the mitigation special issue. Tong v. State, 25 S.W.3d 707, 711 (Tex.Crim.App.2000). However, they base their decision on this point of error on the fact that appellant had not waived submission. So, because appellant did not waive submission of the mitigation issue, which he may or may not be entitled to do, the State was able to present victim impact testimony.

In Mosley v. State, 983 S.W.2d 249, 262 (Tex.Crim.App.1998), we held that victim impact evidence was admissible as rebuttal when the defendant introduces the mitigation special issue. We stated that “[b]oth victim impact and victim character evidence are admissible, in the context of the mitigation special issue, to show the uniqueness of the victim, the harm caused by the defendant, and as rebuttal to the defendant's mitigating evidence.” Id. at 262. The majority seems to interpret the holding in Mosley as allowing the State to offer victim impact evidence, whether or not the defendant submitted the mitigation issue, as long as the defendant had not affirmatively and expressly waived submission. I interpret Mosley differently.

The procedure in the punishment phase of a capital case is for the prosecution to present evidence regarding the defendant's future dangerousness and complicity, then the defendant can offer mitigating evidence, then the prosecution can rebut the defendant's mitigating evidence. It is during the rebuttal of the defendant's mitigating evidence that the State may introduce victim impact statements. Victim impact evidence may only be offered if the defendant raises the mitigation special issue. Under Texas Code of Criminal Procedure Art. 37.071 Sec. 2(a)(1) the State technically could present evidence that mitigates against the imposition of the death penalty, however, because the State is the one seeking the death penalty, clearly the defendant is the one who raises the issue of mitigation. Mosley's holding does not allow victim impact evidence at any time during the punishment phase of the trial, rather it allows it “ in the context of the mitigation special issue ” Mosley, 983 S.W.2d at 262 (emphasis added). Because the mitigation special issue is raised by the defendant, and victim impact evidence is admissible only in the context of the mitigation special issue, it follows that the State can only present victim impact evidence after the mitigation special issue has been raised by the defendant. Under the majority's reasoning, because appellant did not waive submission of the mitigation issue, (which he may or may not be entitled to do), the State was able to present victim impact testimony that under Mosley is admissible only for rebuttal to the defendant's mitigating evidence (which appellant had not raised).

The majority broadens Mosley's already far-reaching holding that victim impact evidence is relevant to mitigation. While I understand the State's desire to present victim impact evidence, I fail to see how such statements are relevant to issues such as future dangerousness and mitigation. The pain felt by the victim's family at the loss of their loved one says nothing about whether the defendant is likely to be a continuing threat to society nor does it negate issues regarding defendant's character or background that may mitigate his or her crime. I disagree with allowing such statements under the guise of rebutting defendant's mitigating evidence. For this reason, I dissent to point of error seven but otherwise join the remainder of the majority's opinion.

Galloway v. Thaler, 344 Fed.Appx. 64 (5th Cir. 2009). (Habeas)

Background: Following capital murder conviction and sentence of death, petition for writ of habeas corpus was filed. The United States District Court for the Northern District of Texas, A. Joe Fish, J., 2008 WL 5091748, denied the petition. Petitioner sought certificate of appealability (COA).

Holdings: The Court of Appeals held that: (1) defense counsel's failure to present mitigating evidence that was available was not deficient assistance, and (2) defense counsel's failure to discover mitigation evidence was not deficient assistance. Denied.

PER CURIAM:

Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.

Petitioner Billy John Galloway, convicted of capital murder and sentenced to death in Texas state court, seeks a certificate of appealability (“COA”) to appeal the district court's order dismissing his petition for writ of habeas corpus under 28 U.S.C. § 2254. Galloway alleges he received ineffective assistance of counsel because his trial counsel failed to investigate and present mitigating evidence during the punishment phase of trial. The district court held that Galloway had not shown deficient performance of counsel and prejudice resulting therefrom. Because jurists of reason would not find debatable the district court's ruling, Galloway's application for a COA is DENIED.

I. BACKGROUND

Galloway was convicted and sentenced to death for the 1998 murder of David Logie in Hunt County, Texas. The evidence presented to the jury included evidence of the following basic facts. Galloway, his friend Kevin Varga, and two women, all of whom were on probation or parole with the South Dakota Department of Corrections, determined to bring in some money by robbery or extortion. The women met Logie, the victim, at a hotel and convinced him to leave with them in Logie's rental car. Galloway and Varga followed in a car obtained from a man Varga had previously killed. When Logie's car stopped, Galloway and Varga beat, killed, and robbed Logie.

Galloway gave specific instructions to his trial attorneys. He stated he did not want to “punk out” or lose his “tough-guy” image, and that his attorneys were not to present any evidence that shifted blame to Varga. He also told his attorneys not to present evidence that would cast his father in a negative light, though mitigation evidence often concerns circumstances of childhood. His attorneys presented no mitigation evidence at sentencing, and later stated that this was for various reasons, some of which were related to Galloway's instructions. After Galloway was convicted and sentenced to death, he filed a 28 U.S.C. § 2254 petition alleging ineffective assistance of counsel based on the alleged failure of his counsel to properly present and investigate mitigation evidence. The district court denied Galloway's petition, and he now seeks a COA from this court.

II. STANDARD OF REVIEW

Because Galloway filed his 28 U.S.C. § 2254 petition after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.L. No. 104-132, 110 Stat. 1214, his petition is governed by the procedures and standards provided therein. See Parr v. Quarterman, 472 F.3d 245, 251-52 (5th Cir.2006). Under the AEDPA, a petitioner must obtain a COA before appealing the district court's denial of habeas relief. 28 U.S.C. § 2253(c)(1)(A). This is a jurisdictional prerequisite. See Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003).

A COA will be granted only if the petitioner makes “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). While this threshold inquiry calls for “an overview of the claims in the habeas petition” and “a general assessment of their merits,” the court is not allowed to engage in “full consideration of the factual or legal bases adduced in support of the claims.” Miller-El, 537 U.S. at 336, 123 S.Ct. 1029. Rather, “[t]he petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong.” Id. at 338, 123 S.Ct. 1029 (quoting Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000)). Any doubt regarding whether to grant a COA requires resolution in favor of the petitioner, and the court may consider the severity of the penalty in making that determination. Fuller v. Johnson, 114 F.3d 491, 495 (5th Cir.1997).

III. DISCUSSION

Galloway asserts that his attorneys failed to present mitigation evidence in their possession, and failed to conduct a more thorough investigation into other possible mitigation evidence. We discuss each argument in turn.

A. Standard for ineffective assistance of counsel

To succeed on his ineffective assistance claim, Galloway had to satisfy the two-prong test established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). He was required to prove by a preponderance of the evidence that: (1) his attorneys' performance was deficient; and (2) the deficient performance prejudiced his defense. Id. at 687, 104 S.Ct. 2052. The first prong requires Galloway to prove that his attorneys' representation fell below an objective standard of reasonableness. Id. at 688, 104 S.Ct. 2052. When a petitioner argues that his attorney failed to adequately investigate mitigation evidence, the proper inquiry is “not whether counsel should have presented a mitigation case, ... [but] whether the investigation supporting counsel's decision not to introduce mitigating evidence of [the defendant's] background was itself reasonable.” Wiggins v. Smith, 539 U.S. 510, 523, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003).

The second prong of Strickland requires Galloway to show that “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694, 104 S.Ct. 2052. Inherent within the prejudice requirement is an element of causation. “It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding. Virtually every act or omission of counsel would meet that test, ... and not every error that conceivably could have influenced the outcome undermines the reliability of the result of the proceeding.” Id. at 693, 104 S.Ct. 2052.

When deciding prejudice in the context of capital sentencing, the court must “weigh the quality and quantity of the available mitigating evidence, including that presented in post-conviction proceedings, along with ... any aggravating evidence.” Blanton v. Quarterman, 543 F.3d 230, 236 (5th Cir.2008). The question is then “whether the changes to the mitigation case would have a reasonable probability of causing a juror to change his or her mind about imposing the death penalty.” Id.

B. Failure to present evidence already available

Galloway's petition asserts that ample mitigation evidence was available to his attorneys, which should have been presented at sentencing but was not. This evidence showed a troubled childhood, abuse at the hands of his father, and his drug use since age twelve. The district court determined that Galloway could not claim ineffective assistance based on counsel's failure to present mitigation evidence because Galloway had instructed them not to present certain evidence, and any evidence not prohibited by Galloway's instructions would not have caused a juror to change his or her mind about imposing the death penalty.

Galloway's attorneys presented several justifications for their inaction. The trial team consisted of two attorneys, Jerry Davis and Dennis Davis (no relation), and their senior legal assistant, Paula Malacek. All three were deposed in prior Texas habeas proceedings. The attorneys stated they believed that evidence of Galloway's drug use would not have had a mitigating effect in Hunt County, Texas, and in fact may have prejudiced the jurors against Galloway. Furthermore, the attorneys stated that they did not offer the expert testimony of Dr. Hopewell, a psychologist hired by the defense to evaluate Galloway, because: (1) Galloway did not cooperate with the evaluation, and the testimony would therefore be limited in nature; and (2) had Hopewell testified, the prosecution would have been entitled to examine Galloway with their own psychologist, which could have been highly prejudicial to Galloway's case.

With regard to evidence of childhood abuse, Galloway has asserted that his attorneys should have ignored his instructions and presented a mitigation case. He hinges this argument on the 2003 and 1989 editions of the American Bar Association Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases (“Guidelines”).FN1 See 2003 Guidelines § 10.5 commentary (2003) (“Some clients will initially insist that they want to be executed ... some clients will want to contest their guilt but not present mitigation.... It is ineffective assistance for counsel to simply acquiesce to such wishes”); id. § 10.7(A)(2) (“The investigation regarding penalty should be conducted regardless of any statement by the client that evidence bearing upon penalty is not to be collected or presented.”); 1989 Guidelines § 11.4.2 commentary (“Capital counsel frequently must not only struggle against the public and prosecution but against the self-destructive behavior of the client as well.” (internal quotation marks omitted)). The district court considered Galloway's arguments based on the Guidelines, and rejected them in light of Fifth Circuit precedent.FN2

FN1. Although the Supreme Court has endorsed various sets of ABA Guidelines as instructive on the issue of reasonableness in representation, see Strickland, 466 U.S. at 688-89, 104 S.Ct. 2052, neither the Supreme Court nor this court have ever found the Guidelines to be dispositive of a claim of ineffective assistance, see id. (noting that the Guidelines “are guides to determining what is reasonable, but they are only guides ” (emphasis added)); Ransom v. Johnson, 126 F.3d 716, 723 (5th Cir.1997) (finding that a failure to meet the standards of the Guidelines is not per se ineffective assistance of counsel).

FN2. The district court referred to our precedents holding that a criminal defendant cannot prevent his attorney from presenting evidence and later allege ineffective assistance. See, e.g., Wood v. Quarterman, 491 F.3d 196, 203 (5th Cir.2007) (“[T]his court has held on several occasions that a defendant cannot instruct his counsel not to present evidence at trial and then later claim that his lawyer performed deficiently by following these instructions.”), cert. denied, --- U.S. ----, 128 S.Ct. 1087, 169 L.Ed.2d 825 (2008); Nixon v. Epps, 405 F.3d 318, 325-26 (5th Cir.2005) (finding that counsel was not ineffective for failing to present additional mitigating evidence over the defendant's objection); Autry v. McKaskle, 727 F.2d 358, 361 (5th Cir.1984) (“By no measure can [the defendant] block his lawyer's efforts and later claim the resulting performance was constitutionally deficient.”).

The attorneys also asserted that they did not want to go against Galloway's instructions because they were afraid that Galloway would react negatively and possibly disrupt the proceeding (and, presumably, thereby hurt his own case) or attempt to harm the attorneys. Malacek stated in her deposition, however, that Galloway never explicitly said anything to indicate he might become violent, and Jerry Davis claimed he was never afraid of Galloway.

Having considered Galloway's arguments under the Miller-El standard, we conclude that he is not entitled to a COA on this ground. Reasonable jurists could debate the constitutional appropriateness of withholding evidence out of simple fear that Galloway would harm his attorneys. The district court, however, also considered independent justifications for the attorneys' decisions, based on their conclusions that the potential mitigation evidence could hurt Galloway's case, and on the possibility that Galloway would disrupt the proceedings if his instructions were not followed and thereby “portray him [self] to the jury as a danger to society.” Considering all of the offered bases for withholding the evidence, on their merits and in light of the prejudice requirement, Galloway has not established “that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong.” Miller-El, 537 U.S. at 338, 123 S.Ct. 1029 (quoting Slack, 529 U.S. at 484, 120 S.Ct. 1595). Accordingly, we deny Galloway's request for a COA on the issue of failure to present mitigation evidence.

C. Failure to investigate potential mitigation evidence

Galloway has also alleged that trial counsel failed to conduct adequate investigation into mitigation evidence, thus leaving valuable evidence undiscovered. Galloway claims his attorneys would have discovered evidence of childhood physical abuse, sexual abuse, educational problems, psychological disorders, and alleged head trauma from a childhood car accident.

With respect to evidence regarding Galloway's childhood abuse, educational problems, and the car accident, the district court held that Galloway had not shown a reasonable probability that the evidence, had it been admitted, would have caused a juror to reconsider his or her decision regarding the death penalty. It also noted that such evidence would necessarily have cast Galloway's father in a negative light, and would have been contrary to Galloway's instructions. Therefore, even if the attorneys had discovered this evidence, it concluded they still might not have been able to utilize this evidence during sentencing.

With regard to the evidence of Galloway's alleged sexual abuse at the hands of a neighbor, the district court found that counsel was not deficient in failing to discover the information. The court noted that Galloway himself was the only person with knowledge of the sexual abuse, and that Galloway failed to disclose any such evidence to his attorneys despite their efforts to talk with him.

Finally, the district court held that the attorneys were not deficient in failing to investigate Galloway's psychological issues. The attorneys in fact hired a psychologist, Dr. Hopewell, in an attempt to discover potentially mitigating evidence of psychological disorders, but Galloway did not cooperate with the evaluation.

Having considered the arguments, we conclude that Galloway has not met his burden of showing “that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong.” Miller-El, 537 U.S. at 338, 123 S.Ct. 1029 (quoting Slack, 529 U.S. at 484, 120 S.Ct. 1595). Accordingly, we deny Galloway's request for a COA on the issue of his attorneys' failure to investigate.

IV. CONCLUSION