Texas Department of Criminal Justice

Reuters News

"Texas executes hitman who killed witness." (Wed Nov 1, 2006 8:35 PM ET)

HUNTSVILLE, Texas (Reuters) - Texas executed a man on Wednesday by lethal injection for what prosecutors said was a $200 contract killing of a witness in an assault case. Donell Jackson, 33, was convicted in August 1993 for a murder-for-hire shooting in Houston. He was found guilty of the murder of Mario Stubblefield, who was to testify against a third man in an aggravated assault case.

In its brief summary of the case, the Texas Department of Criminal Justice said Jackson, who was then 20 years old, agreed to carry out the killing for $200 in cash. But in his last statement while strapped to the gurney, Jackson said: "I received nothing, I was not paid. I took his life for the love of a friend." He also apologized to his victim's uncle, who was present as a witness, saying: "I just want you to know that I wronged your family."

Jackson was the 23rd person executed in Texas this year and the 378th put to death in the state since it resumed capital punishment in 1982, six years after the U.S. Supreme Court lifted a national death penalty ban. Both totals lead the nation.

For his last meal, Jackson requested peach cobbler, barbecued ribs, french fries, onion rings, two double meat bacon burgers along with a root beer soda and a banana split ice cream.

Texas has two more executions scheduled this year.

Houston Chronicle

"Texas executes hit man who shot witness," by Michael Graczyk. (Associated Press Nov. 2, 2006, 2:20AM)

HUNTSVILLE, Texas — Through a window outside the Texas death chamber, Curtis Smith watched the man who killed his nephew die. Authorities said the condemned man, Donell Jackson, collected $200 for killing 17-year-old Mario Stubblefield, who had witnessed a drive-by shooting.

Smith had helped convince Stubblefield to tell a grand jury what he saw 13 years ago. But the teen was murdered before he could testify at trial. "As a man, I really despise him and disagree with what he did," Smith said of Jackson. "But as a Houston police officer, I would still do my job."

From the death gurney Wednesday, Jackson, 33, acknowledged killing Stubblefield before he could testify. "I just want you to know that I wronged your family," Jackson told Smith. Jackson said he did the shooting "for the love of a friend" _ the man Stubblefield identified as the shooter in the drive-by incident.

Witnesses identified that man as David Smith, who is not related to the police officer. David Smith was convicted of paying Jackson to shoot Stubblefield and was sentenced to life in prison. Jackson, then 20, showed up at Stubblefield's Houston home on Aug. 31, 1993, under the guise of being the friend of a relative. Authorities said Jackson asked to speak with him outside, then pulled out a gun and fatally shot Stubblefield. Curtis Smith watched through a window a few feet from Jackson, who was pronounced dead after expressing love to his own friends and relatives.

"I appreciate him acknowledging that he was wrong in what he did," Curtis Smith said, adding that he wanted his nephew to be remembered "as a young kid that did the right thing in coming forth when he witnessed a crime. And by doing so, he lost his life."

Another condemned prisoner from Harris County is set to die next week. Willie Marcel Shannon, 33, has a Nov. 8 execution date for a 1992 fatal carjacking in Houston.

Houston Chronicle

"Inmate says he killed for friendship, not moneyDonell Jackson is scheduled to die Wednesday," by Sarah Viren. (Oct. 29, 2006, 1:49PM)

LIVINGSTON — Donell O'Keith Jackson and David Smith were fast friends. That's why, Jackson said from death row here last week, he agreed to an early-morning ride with Smith in summer 1993. "It is why he had a gun when he knocked on the door of Mario Stubblefield's southeast Houston house, where the 17-year-old lived with his disabled father, Prince. And why, Jackson, then 21, stood on the lawn with this teenager he did not know, fired a shot and ran to his best friend's parked car nearby.

Police arrived to find a neighborhood friend of Stubblefield's, who heard gunfire, clutching the dead teenager's hand.

Last week, facing a Wednesday execution for the crime, Jackson bowed his head with regret. He killed, he said, to help his best friend, who at the time faced charges in an unrelated shooting case in which Stubblefield was the star witness.

But in a tape-recorded confession after his arrest, Jackson told officers Smith, also known as Darryl Scott, paid him — $75 up front and $125 later — to kill the witness. He now says police invented the payment story for him. That $200 meant the difference between life and death for the 34-year-old. In Texas, murder warrants the death penalty only in specific situations, including murder during a robbery or a rape, murder of a child or, in this case, murder for money.

Jackson's confessed fee is one of the smallest amounts ever offered in a murder-for-hire case resulting in the death penalty in Texas. Just last week, Gregory Summers was executed for paying someone $10,000 to kill his parents. Of the 377 men and women executed in Texas since 1982, Summers was just the 14th to die in such a case, prison records show.

"You might expect someone to try to kill witnesses in a mob situation or a Mafia situation in New York City, but you don't expect that to happen in Houston," Chuck Rosenthal, who prosecuted Jackson's case, said in closing arguments. "This is exactly what happened here."

Jackson has an appeal pending before the U.S. Supreme Court. His lawyer, Janie Maselli, argues that the jury wasn't able to fully consider his supportive family, church work and other evidence that might have spared him. The appeal also alleges that prosecutors violated state and federal constitutional law by striking five blacks from the jury pool. Two blacks sat on the jury for Jackson, who is black. The state disputes the claims made in the appeal: Jurors heard about and could consider mitigating evidence when deciding Jackson's sentence, the Texas Attorney General's Office argued in a brief filed this month. The state also argued that prosecutors were race-blind when eliminating jurors.

On Thursday, Maselli asked the high court to delay the execution to allow more time to consider the appeal. She said she does not plan to raise the murder-for-hire issue. The argument was hashed out in trial, she said, and there is no new evidence to corroborate Jackson's story.

Although accepting his upcoming execution, Jackson won't let the matter rest. "(Mario's) death wasn't about money: that's one thing I would like his family to know," he said in a soft voice that contrasted with his bulky frame. "I just chose my friend over him."

Denied payment
Jackson and Smith met in high school. The two grew close enough to call each other cousins. Jackson was often at Smith's house and treated his friend's mother like his own. (She was one of the few people he called after his murder arrest.) So when Smith got in trouble and came asking for help dealing with Stubblefield, Jackson said, he didn't resist for long. "I knew it was wrong to take Mario's life, but in my warped little world I was looking at it like it's either my friend or some guy I don't know," he said.

Smith also faced the death penalty in connection with Stubblefield's death, but he received a life sentence instead. In prison in Beeville, he did not respond to a letter requesting an interview.

In his trial, he denied paying Jackson before the murder. He said he wanted only to threaten Stubblefield and that Jackson decided on his own to pull the trigger. It was in the police station, after his arrest, that Jackson first heard his best friend fingering him for the crime. Officers played part of Smith's taped confession for him. Afterward, according to Houston police officer Alan Brown's later testimony, Jackson blurted out: "No, he paid me." Brown did not return calls for comment for this article.

Jackson has a different story. He was angry at Smith, yes. But he said the officers told him if he said Smith paid him that would "put the ball back in his court." In a 17-minute taped confession he said: "I just told him, you know, whatever you can, you know, can give me and he said $200 so we left it at that." That was enough to convince a jury in 1996. When prosecutors brought up past offenses including sexual abuse of a younger sister and the shooting of a friend — Jackson called it an accident — the jury agreed on death.

Death's effects
Before he was killed, Stubblefield had fallen into the wrong crowd, said his uncle Curtis Smith, a veteran Houston Police Department patrolman. But, he added, his nephew wanted to right his wrongs.

In 1993, Stubblefield came to Smith with a confession: he'd been in a car during a drive-by shooting in which David Smith, no relation to Curtis Smith, shot but didn't kill another man. The teenager's uncle told him he needed to go to the police, and he did. He told his story to a grand jury that indicted David Smith and would have testified in trial if he hadn't been killed. Prosecutors later called him a hero.

Curtis Smith, one of the few Stubblefield relatives still alive, said he wished he had known to protect his nephew. He dismissed Jackson's payment denial as legal maneuvering. "What happened — he didn't deserve that," he said. The murder was the eventual death of Prince Stubblefield, Smith said. The elderly man lived only 10 months after his son was killed. He had been inside watching TV when the murder occurred. "He said to me, 'I was right there and I couldn't do anything,' " Smith recalled.

Jackson's aunt, Tammy Jackson, said much the same thing about the convicted killer's grandmother. Lula Angelo, the pastor of a Houston-area church, helped raise Jackson, one of nine siblings. She fainted after his sentencing, got sick and died four years later, Tammy Jackson said. Jackson was held back in school a number of times and did not finish the 11th grade. Maselli said she may raise the issue of mental retardation, which has gotten some off death row, as a last-minute appeal.

Jackson's aunt said she thinks he would have been a preacher, like other family members, if he had avoided jail. From death row, where pen pal letters and a collection of pictures from around the world are his main solace, Jackson had other thoughts. "If I hadn't gotten locked up, I think I would have been dead by now," he said. "This place kind of saved me, but that protection is kind of running out."

Dallas Morning News

"Hit man who shot witness executed," by Michael Graczyk. (Associated Press 11/02/2006)

Curtis Smith was torn between his duty as a police officer and his sentiments as an uncle as he watched Donell Jackson die in Texas' death chamber for killing his nephew in 1993. "As a man, I really despise him and disagree with what he did. But as a Houston police officer, I would still do my job to protect his family and others from going through this," Smith said Wednesday night.

Authorities said Jackson collected $200 for killing 17-year-old Mario Stubblefield, a Houston teenager who had witnessed a drive-by shooting.

From the death gurney, Jackson, 33, acknowledged the slaying of Stubblefield before the teenager could testify in court about what he had seen. "I just want you to know that I wronged your family," Jackson told Smith, who had convinced his nephew to appear before the grand jury 13 years ago. Jackson said he did the shooting "for the love of a friend," the man Stubblefield identified as the shooter in the drive-by incident.

Smith watched through a window a few feet from Jackson, who was pronounced dead eight minutes later and after expressing love to his own friends and relatives. "I appreciate him acknowledging that he was wrong in what he did," Smith said, adding that he wanted his nephew to be remembered "as a young kid that did the right thing in coming forth when he witnessed a crime. "And by doing so, he lost his life." Smith, a Houston police officer for almost 23 years, described the execution as "bittersweet," but said since he was "in the Lord, I have to forgive him."

The execution, the 23rd this year in Texas, the nation's most active death penalty state, came about four hours after the U.S. Supreme Court declined to review his case and block the punishment.

Stubblefield was targeted after telling a grand jury about a drive-by shooting he witnessed. He was shot in the head and neck outside his Houston home, lured there by Jackson, then 20, before he could repeat his testimony in court. Witnesses identified another man waiting outside by a car as David Smith, who was fingered as the gunman in the earlier drive-by shooting.

David Smith later was convicted of paying Jackson the $200 to shoot Stubblefield and was sentenced to life in prison. In a statement to police, Jackson admitted accepting payment from his best friend but at his trial denied receiving any money. The case remained open for some two years before police got a break while investigating the original drive-by shooting.

"I think if the reason we have capital punishment is deterrent, I don't think leaving somebody on death row really does that," Denise Nassar, an assistant Harris County district attorney who prosecuted Jackson in 1995, said of the lengthy time between Jackson's conviction and punishment. "It doesn't really accomplish that goal, but it is fair that he received the appeals process." Evidence at his trial showed Jackson was found to be delinquent as a juvenile for being indecent with a child and also had shot another high school student in the face.

Another condemned prisoner from Harris County is set to die next week. Willie Marcel Shannon, 33, has a Nov. 8 execution date for a 1992 fatal carjacking in Houston. Unknown to Shannon, his shooting victim had been in the witness protection program after testifying a decade earlier at drug trials in the Rio Grande Valley.

Fort Worth Star Telegram

"Killer's execution is 23rd in state this year." (ASSOCIATED PRESS Posted on Thu, Nov. 02, 2006)

HUNTSVILLE -- A man convicted of collecting $200 to kill a teenager to keep him from testifying about a drive-by shooting was executed Wednesday evening.

Donell Jackson expressed love to his relatives and friends and assured them that he was fine. "I'm all right. Make sure Mama knows," he told relatives who watched through a nearby window. He turned his head and addressed Curtis Smith, the uncle of 17-year-old shooting victim Mario Stubblefield. "I just want you to know that I wronged your family," Jackson said. "I received nothing. I was not paid. I took his life for the love of a friend."

Eight minutes later at 6:21 p.m., Jackson was pronounced dead. Jackson, 33, was the 23rd convicted killer executed this year in Texas, the nation's busiest capital punishment state.

On Wednesday afternoon, the U.S. Supreme Court refused appeals to review Jackson's case and block his execution.

Stubblefield was targeted after telling a grand jury about a drive-by shooting he witnessed. He was shot outside his Houston home before he could repeat his testimony in court. "Basically, it was a murder for hire, a situation where the defendant admitted a friend paid him to kill," said Denise Nassar, the lead Harris County prosecutor at Jackson's trial.

Smith, Stubblefield's uncle, is a Houston police officer who persuaded his nephew to testify. He said he appreciated Jackson's "acknowledging that he was wrong in what he did," but called the execution "bittersweet." "I advised he needed to do the right thing," he said of his nephew. "And by doing so, he lost his life. But me being a police officer, I would still protect Mr. Jackson's family and friends to prevent others from doing this to someone else's family."

Jackson said on a Web site where inmates seek pen pals that it was sad what his life had been reduced to. Jackson was 20 when he lured Stubblefield out of his home into the front yard, then shot him in the head and neck.

Huntsville Item

"Death row inmate apologizes to families," by Stewart Smith. (11/02/06)

In his final moments before death, Donell Okeith Jackson asked forgiveness of his victim’s family and attempted to put his family’s minds at ease. “You are Mario’s uncle? Correct?” Jackson asked of Curtis Smith. “I just want you to know that I wronged your family. I received nothing, I was not paid. I took his life for the love of a friend.”

Jackson, who was convicted in 1993 for the murder-for-hire shooting death of 17-year-old Mario Stubblefield in Houston, was executed by lethal injection Wednesday night at the Huntsville Walls Unit. He was pronounced dead at 6:21 p.m. CST.

Jackson’s co-defendant, Darryl Scott, paid him $200 in cash to kill Stubblefield as he was set to testify against Scott in an unrelated aggravated assault case.

To his friends and family, Jackson expressed his love for them and showed no fear of death. “The calmness I was telling you about, I still have it,” he said. “I love you all. I just want you to know that. I’m all right. Make sure momma knows. All right? “Jermaine, I love you, too, man.” Tammy Butler, a friend of Jackson, could be heard crying and singing, thanking Jesus for her friend’s salvation and forgiveness. In a press conference following the execution, Smith said he appreciated Jackson’s apology and that it provided closure for he and his family.

Smith, a Houston Police officer of 22 years, said he does not regret encouraging his nephew to testify against Scott. “It’s bittersweet because he did the right thing and lost his life,” Smith said. “But with me being a police officer with Houston, I will still protect Mr. Jackson’s family and friends to prevent someone from doing this to someone else’s family.”

Jackson, 33, was the 23rd convicted killer executed this year in Texas. The U.S. Supreme Court on Wednesday afternoon refused appeals to review Jackson’s case and block his execution.

Another condemned prisoner from Harris County is set to die next week. Willie Marcel Shannon, 33, has a Nov. 8 execution date for a 1992 fatal carjacking in Houston. Unknown to Shannon, his shooting victim had been in the witness protection program after testifying a decade earlier at drug trials in the Rio Grande Valley.

Texas Execution Information Center by David Carson.

Donnell O'Keith Jackson, 33, was executed by lethal injection on 1 November 2006 in Huntsville, Texas for the murder-for-hire of a witness in a criminal trial.

On the morning of 31 August 1993, Jackson, then 20, and his friend, David Smith, drove to the Houston home where Mario Stubblefield, 17, lived with his father, Prince. Mario, who was an eyewitness to a drive-by-shooting, had testified against Smith before a grand jury and was scheduled to testify in court the next day. After speaking with Stubblefield and his father inside the house, Jackson asked if he could speak privately with Mario Stubblefield outside. Once outside, Jackson pulled a gun from his waist and shot the teen once in the head.

Eddie Clark, Stubblefield's friend and neighbor, was riding by on a bicycle. At Jackson's trial, Clark testified that he saw the victim and another man talking outside, while a third person waited in a car. A few moments later, he heard a gunshot. He saw the two men leave the scene in a hurry. He then ran to Stubblefield, saw that he had been shot, and asked his father to call 9-1-1. Clark waited for the police and gave them a description of the car and the two men.

The next day, police visited the home of Smith's girlfriend, Sheila Tolston, where Smith had been staying. A car matching the description Clark gave them - white with blue pinstripes and eagle emblems - was parked in the driveway.

Clark later identified Smith from a photograph as the man he saw sitting in the car moments before Stubblefield was shot. The investigation was then stalled for almost two years because of a lack of cooperation from Smith and Tolston. Eventually, Tolston implicated Donnell Jackson as the other participant in the murder. With this information, police assembled a photo lineup in which Eddie Clark identified Jackson as the man standing next to the car just before Stubblefield was shot.

With the shooter identified, Smith gave a statement to the police. He claimed that he did not know that Jackson was going to shoot Stubblefield. Police then arrested Jackson and played Smith's taped statement for him. Jackson responded, "Man, he paid me to do it." Jackson then made a confession in which he stated that Smith paid him $200 to kill Stubblefield. He also claimed that Smith gave him the gun.

To obtain a conviction for capital murder, prosecutors must not only show that a murder was committed, but also prove that one or more aggravating factors existed. Under Texas law, remuneration is an aggravating factor. At his trial, Jackson challenged the remuneration charge, claiming he was only doing a favor for Smith, and that no money was mentioned. He also testified that he only intended to scare Stubblefield and didn't mean to kill him.

Jackson had no prior convictions, but the state presented evidence that he once shot a former high school classmate in the face, and that as a juvenile, he committed indecency with a child. A jury convicted Jackson of capital murder in August 1996 and sentenced him to death. The Texas Court of Criminal Appeals affirmed the conviction and sentence in April 1999. All of his subsequent appeals in state and federal court were denied.

David Smith, aka Darryl Scott, was also convicted of capital murder in a separate trial and was sentenced to life in prison.

In an interview from death row the week before his execution, Stubblefield took responsibility for the killing, but denied receiving money. "In my warped little world, I was looking at it like it's either my friend or some guy I don't know," Jackson said.

Prince Stubblefield, who was invalid and being taken care of by Mario, died about ten months after his son was killed. His brother, Curtis Smith, attended Jackson's execution on his behalf. "You are Mario's uncle ... correct?" Jackson asked Smith in his last statement. "I just want you to know that I wronged your family. I was not paid. I took his life for the love of a friend." Jackson also encouraged his relatives, telling them he was all right. The lethal injection was then started. Jackson was pronounced dead at 6:21 p.m.

After the execution, Curtis Smith said he appreciated Jackson's apology. A 22-year veteran of the Houston Police Department, Smith said he wanted his nephew to be remembered as "a young kid that did the right thing by coming forth when he witnessed a crime." "It's bittersweet because he did the right thing and lost his life," Smith said. "But with me being a police officer with Houston, I will still protect Mr. Jackson's family and friends to prevent someone from doing this to someone else's family."

ProDeathPenalty.com

Donnell O'Keith Jackson was charged with capital murder for the killing of Mario Stubblefield in the course of retaliation. Stubblefield had previously testified before a grand jury in its investigation of a prior aggravated assault offense involving Jackson’s friend David Smith (AKA Darryl Scott). Eddie, a witness at the scene of Stubblefield’s shooting, testified that he had seen Smith sitting in a car in front of Stubblefield’s house moments before the shooting. Eddie said Smith was talking with Stubblefield and another man, who stood outside the car. Police later discovered the car belonged to Smith’s girlfriend, Sheila. When questioned by police, Sheila implicated Jackson in Stubblefield’s murder.

With this information, police assembled a photograph lineup, from which Eddie positively identified Jackson as the man standing next to the car just before Stubblefield was shot. Later, during a police interview in jail, Smith gave a taped statement claiming Jackson committed the murder. Police arrested Jackson and confronted him with Smith’s statement. On the tape, Smith claimed he did not know Jackson was going to shoot Stubblefield. When Jackson heard this statement he replied, “Man, he paid me to do it.” He then gave a taped confession, in which he claimed that Smith paid him two hundred dollars to kill Stubblefield.

At trial, Jackson testified on his own behalf. He denied any payment or discussion of payment with Smith, and claimed he had intended only to scare Stubblefield out of testifying against Smith at trial. The jury found Jackson guilty of capital murder. During the punishment phase, the State introduced evidence that Jackson had been found delinquent as a juvenile for the offense of indecency with a child, had been expelled from school for excessive absences after various other disciplinary problems, and following the Stubblefield murder, had shot a former high school classmate in the face.

Jackson presented evidence of a favorable home life and church membership, and two experts testified that he suffered from a learning disability. The jury answered the future dangerous issue “yes” and the mitigation special issue “no,” and the trial court sentenced Jackson to death as required by law.

Earlier appeals focused on Jackson's claim he wasn't paid, with lawyers arguing the lack of payment would lessen the charge from capital murder and remove the possibility of the death penalty. "Whether or not he got paid is not important," said Harris County District Attorney Chuck Rosenthal, who was an assistant prosecutor helping try the case in 1995. "He was solicited for the money. He testified and he said he was just supposed to scare Stubblefield and no money was mentioned. He said he didn't mean to kill him." Rosenthal said Mario Stubblefield had been taking care of his invalid father, who died not long after his son was killed. "He just kind of gave up," Rosenthal said. "That was awfully sad."

National Coalition to Abolish the Death Penalty

Donell Jackson, November 1, 2006, TX
Do Not Execute Donell Jackson!

Donell Jackson, a black man, is scheduled to be executed by the state of Texas on Nov. 1. On Aug. 31, 1993, two men approached and murdered Mario Stubblefield, a man who was due to testify before a grand jury against David Smith, a friend of Jackson’s. A witness later identified Jackson as the man who killed Stubblefield. Prior to the trial, a question existed of whether or not Smith paid Jackson to kill Stubblefield, but Jackson testified at the trial that he was not paid.

While Jackson testified that he killed Stubblefield, several mitigating factors exist. Jackson had a record of juvenile delinquency, and he ultimately dropped out of school due to excessive absences. Two experts testified during the sentencing phase of the trial that Jackson has a learning disability, which may contribute to his lack of education. Furthermore, all of Jackson’s appeals have been denied, including a request for a state-funded polygraph test.

Although Jackson admitted to killing Stubblefield, he testified that he did not go to Stubblefield with the intent of killing him. Furthermore, Jackson’s lack of education and learning disabilities may have inhibited his decision-making process. While Jackson must be punished for his role in the murder of Mario Stubblefield, he does not deserve the death penalty.

Please send appeals to Gov. Rick Perry on behalf of Donell Jackson!

Texas Attorney General

Media Advisory: Donell Jackson Scheduled For Execution (Wednesday, October 25, 2006)

AUSTIN – Texas Attorney General Greg Abbott offers the following information about Donell O’Keith Jackson, who is scheduled to be executed after 6 p.m. Wednesday, November 1, 2006. On August 7, 1996, Donell O’Keith Jackson was found guilty of the August 31, 1993, Houston murder-for-hire of Mario Stubblefield and was sentenced to death by the jury on August 13, 1996. A summary of the evidence presented at trial follows.

FACTS OF THE CRIME

On the morning of August 31, 1993, Jackson and his friend, David Smith, drove to the northeast Houston house where Mario Stubblefield and his father lived. After entering the house and speaking to both of the Stubblefields, Jackson asked if Mario Stubblefield would go outside with him because he had something else that he wanted to tell him. Once outside, Jackson pulled a gun from his waist that Smith had given to him and shot Mario Stubblefield once in the head.

Eddie Clark, a neighbor and friend of Mario’s who had been riding by on his bicycle, was a witness at the scene of the shooting. Clark testified that he stopped briefly to talk with Mario, and that Mario and another man were outside talking while a third person was waiting in a car. A few seconds after he left the Stubblefields, Clark heard a gunshot, and witnessed the two men leaving the scene in a hurry. After running back to the parking lot where Mario was laying, Clark discovered that Mario had been shot in the head, and asked Mario’s father to call 9-1-1. After the police arrived, Clark gave a description of both the car and the two men to officers.

Police quickly discovered that Mario was scheduled to testify in an upcoming trial against David Smith, and went the next day to the house of Smith’s girlfriend, Sheila Tolston, where Smith had been staying. Police found parked in the driveway a white car with blue pinstripes and eagle emblems, the same car Eddie Clark described to them the day before. The police then obtained a picture of Smith, and Clark positively identified him as the person he saw sitting in the car in front of the Stubblefield’s house moments before the shooting.

Although the investigation then stalled for almost two years because neither Smith nor Tolston fully cooperated with the investigation, Tolston eventually implicated Jackson in Mario Stubblefield’s murder. With this new information, police assembled a photo lineup from which Eddie Clark positively identified Jackson as the man standing next to the car just before Mario Stubblefield was shot.

Later, once Smith realized that the police knew who the shooter was, he gave a taped statement to the police claiming that Jackson committed the murder. On the tape, Smith stated that he did not know that Jackson was going to shoot Stubblefield. Police then arrested Jackson and confronted him with Smith’s statement. When Jackson heard the statement he replied, “Man, he paid me to do it.” He then gave a taped confession, in which he claimed that Smith paid him two hundred dollars to kill Stubblefield.

PROCEDURAL HISTORY

January 18, 1996 -- A Harris County grand jury indicted Jackson for the capital murder of Mario Stubblefield.
August 7, 1996 -- A jury found Jackson guilty of capital murder.
August 13, 1996 -- Following a separate punishment hearing, Jackson was sentenced to death.
April 28, 1999 -- The Texas Court of Criminal Appeals affirmed Jackson’s conviction and sentence. Jackson did not seek USSCT certiorari review.
July 20, 1998 -- Jackson filed an application for writ of habeas corpus with the state trial court.
June 26, 2002 -- The Court of Criminal Appeals denied Jackson’s state application for writ of habeas corpus.
June24, 2003 -- Jackson filed a federal petition for writ of habeas corpus in a Houston federal district court.
March 23, 2005 -- The federal district dismissed Jackson’s federal habeas petition and also denied him a certificate of appealability.
June 29, 2005 -- Jackson filed an application for certificate of appealability with the 5th U.S. Circuit Court of Appeals.
May 11, 2006 -- The Fifth Circuit Court denied Jackson’s request for permission to appeal on all but two claims raised in his application.
September 15, 2006 -- Jackson petitioned the U.S. Supreme Court for a writ of certiorari. The case is still pending.

PRIOR CRIMINAL HISTORY

During the punishment phase of trial, the State introduced evidence that Jackson was found delinquent as a juvenile for the offense of indecency with a child, was expelled from school for excessive absences after various other disciplinary problems, and shot a former high school classmate in the face. Jackson presented evidence of a favorable home life and church membership, and two experts testified that he suffered from a learning disability.

Deathrow.USA

Donell Jackson #999206 executed by the state of Texas November 1, 2006

November 2005

GREETINGS, my name is DONELL O"KEITH JACKSON.

For the past nine years i've been on DEATH ROW, and it's been one had hard day after another... the thing i'd most like to stress to all who take the time to read this, is nothing in life is ever a sure thing!

I was sure i wouldn't get sent to DEATH ROW .. i was sure my family would be by my side to the end... i was sure the friends i make would last... aside from the first one,

ITS MY FAULT I'M HERE. I'VE YET TO MEET ANYONE THAT REALLY CARES!!! Not that anyone has to, but it would be nice if someone did...

i'm 32 years old and before my time is up i'd like to know what it's like too really have some one in your corner... so i ask that someone steps up to show me what a real friend is... there isn't much i can do here to pass the time, but what i do i will share with you.

Most of my time is spent looking for a laugh, it may sound corny but it's true it's what they say "have to laugh to keep from crying" . When i'm not doing that i like to read all kinds of books...

i try to write poetry, i enjoy writing "when i have someone too write... and i' really into dungeons & dragons the roll playing game. that's about all i've found here that i can do ... not much and i know it's sad when you just look at what my life has been reduced too!!! the bottom line is i'm not an ANIMAL and i really need a friend.....

THANK YOU FOR YOUR TIME... DONELL #999206

DONELL O'KEITH JACKSON #999206
Polunsky Unit DR
3872 FM 350 South
Livingston, Texas 77351 USA

Jackson v. State, 992 S.W.2d 469 (Tex.Cr.App. 1999) (Direct Appeal).

Defendant was convicted in the Circuit Court, Harris County, Carol G. Davies, J., of capital murder, and he was sentenced to death. On direct appeal, the Court of Criminal Appeals held that: (1) defendant was not entitled to assistance of state-funded polygraph examiner; (2) defendant was not entitled to have jurors compelled to submit to posttrial questioning; (3) consideration of extraneous unadjudicated offenses or bad acts did not have to be limited to the future dangerousness punishment issue; (4) victim impact evidence was admissible; and (5) pictures of defendant during his childhood were excludable. Affirmed. Meyers, J., filed a concurring opinion in which Johnson, J., joined. Mansfield, J., filed a concurring opinion. The opinion was delivered PER CURIAM.
Appellant, Donell Okeith Jackson, was convicted of capital murder and sentenced to death. S ee tex. Penal Code Ann. § 19.03(a)(2); Article 37.071, § 2Appeal to this Court is automatic. Article 37.071, § 2(h). Appellant raises twenty-six points of error. We will affirm.

I. FACTS

Appellant was charged with capital murder for the killing of Mario Stubblefield in the course of retaliation. Stubblefield had previously testified before a grand jury in its investigation of a prior offense involving appellant's friend David Smith. Eddie Clark, a witness at the scene of Stubblefield's shooting, testified that he had seen Smith sitting in a car in front of Stubblefield's house moments before the shooting. Clark said Smith was talking with Stubblefield and another man, who stood outside the car. Police later discovered the car belonged to Smith's girlfriend, Sheila Tolston. When questioned by police, Tolston implicated appellant in Stubblefield's murder. With this information, police assembled a photograph lineup, from which Clark positively identified appellant as the man standing next to the car just before Stubblefield was shot.

Later, during a police interview in jail, Smith gave a taped statement claiming appellant committed the murder. Police arrested appellant and confronted him with Smith's statement. On the tape, Smith claimed he did not know appellant was going to shoot Stubblefield. When appellant heard this statement he replied, “Man, he paid me to do it.” He then gave a taped confession, in which he claimed that Smith paid him two hundred dollars to kill Stubblefield. At trial, appellant testified on his own behalf. He denied any payment or discussion of payment with Smith, and claimed he had intended only to scare Stubblefield out of testifying against Smith at trial. The jury found appellant guilty of capital murder.

During the punishment phase, the State introduced evidence that appellant had been found delinquent as a juvenile for the offense of indecency with a child, had been expelled from school for excessive absences after various other disciplinary problems, and had shot a former high school classmate in the face. Appellant presented evidence of a favorable home life and church membership, and two experts testified that he suffered from a learning disability. The jury answered the future dangerous issue “yes” and the mitigation special issue “no,” and the trial court sentenced appellant to death as required by law.

II. GUILT/INNOCENCE A. Pretrial Motion

In point of error twenty-four, appellant challenges the trial court's refusal to order payment of a polygraph examiner. Appellant filed a motion to permit a polygraph examination in the jail, and to authorize counsel to incur the expenses of the examination and testimony by the examiner “should that be necessary.” Attached to the motion were (1) a letter from a polygraph examiner which said that he could administer an examination regarding whether appellant gave false information in his confession, and stating his fees for examining and testifying, (2) the polygraph examiner's resume, and (3) a copy of the opinion in United States v. Posado, 57 F.3d 428 (5th Cir.1995). The motion was denied on the day it was filed. We are not directed to any evidence in the record on the motion. At trial appellant testified that a police officer misled him into making false statements in his taped confession. The officer denied doing so.

Appellant's argument has three components: (1) Indigent defendants, such as himself, have a constitutional right to state-funded assistance from expert witnesses in a capital case. See Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985). (2) A polygraph examiner's opinion on appellant's credibility was as necessary to a fundamentally fair trial as the opinions of psychiatrists, pathologists, and chemists in other cases which the Supreme Court of the United States and this Court have considered. See Ake v. Oklahoma, supra; Rey v. State, 897 S.W.2d 333 (Tex.Cr.App.1995); DeFreece v. State, 848 S.W.2d 150 (Tex.Cr.App.1993); McBride v. State, 838 S.W.2d 248 (Tex.Cr.App.1992). (3) The opinion of a polygraph examiner is no longer subject to a per se rule of exclusion, but should be tested under Rule of Evidence 702. See United States v. Posado, supra.

The argument fails in the first and second steps, which makes it unnecessary to consider the third. In Ake v. Oklahoma, supra, the Supreme Court found a constitutional right for an indigent defendant, who relied on an insanity defense in a capital case, to have the assistance of a state-provided psychiatric expert. The Court considered three factors: the defendant's interest, the State's interest, and “the probable value of the ··· procedural safeguards that are sought, and the risk of the erroneous deprivation of the affected interest if those safeguards are not provided.” 470 U.S. at 77, 105 S.Ct. 1087. As to “the probable value of the psychiatric assistance sought, and the risk of error in the proceeding if such assistance is not offered,” the Court “beg[a]n by considering the pivotal role that psychiatry has come to play in criminal proceedings.” Id. at 79, 105 S.Ct. 1087. The Court found “a reality that we recognize”: [W]hen the State has made the defendant's mental condition relevant to his criminal culpability and to the punishment he might suffer, the assistance of a psychiatrist may well be crucial to the defendant's ability to marshal his defense. In this role, psychiatrists gather facts, through professional examination, interviews, and elsewhere, that they will share with the judge or jury; they analyze the information gathered and from it draw plausible conclusions about the defendant's mental condition, and about the effects of any disorder on behavior; and they offer opinions about how the defendant's mental condition might have affected his behavior at the time in question. They know the probative questions to ask of the opposing party's psychiatrists and how to interpret their answers. Unlike lay witnesses, who can merely describe symptoms they believe might be relevant to the defendant's mental state, psychiatrists can identify the “elusive and often deceptive” symptoms of insanity, Solesbee v. Balkcom, 339 U.S. 9[, 70 S.Ct. 457, 94 L.Ed. 604] (1950), and tell the jury why their observations are relevant. Further, where permitted by evidentiary rules, psychiatrists can translate a medical diagnosis into language that will assist the trier of fact, and therefore offer evidence in a form that has meaning for the task at hand. Through this process of investigation, interpretation, and testimony, psychiatrists ideally assist lay jurors, who generally have no training in psychiatric matters, to make a sensible and educated determination about the mental condition of the defendant at the time of the offense.

Psychiatry is not, however, an exact science, and psychiatrists disagree widely and frequently on what constitutes mental illness, on the appropriate diagnosis to be attached to given behavior and symptoms, on cure and treatment, and on likelihood of future dangerousness. Perhaps because there often is no single, accurate psychiatric conclusion on legal insanity in a given case, juries remain the primary factfinders on this issue, and they must resolve differences in opinion within the psychiatric profession on the basis of the evidence offered by each party. When jurors make this determination about issues that inevitably are complex and foreign, the testimony of psychiatrists can be crucial and “a virtual necessity if an insanity plea is to have any chance of success.” By organizing a defendant's mental history, examination results and behavior, and other information, interpreting it in light of their expertise, and then laying out their investigative and analytic process to the jury, the psychiatrists for each party enable the jury to make its most accurate determination of the truth on the issue before them. It is for this reason that States rely on psychiatrists as examiners, consultants, and witnesses, and that private individuals do as well, when they can afford to do so. In so saying, we neither approve nor disapprove the widespread reliance on psychiatrists but instead recognize the unfairness of a contrary holding in light of the evolving practice.

The foregoing leads inexorably to the conclusion that, without the assistance of a psychiatrist to conduct a professional examination on issues relevant to the defense, to help determine whether the insanity defense is viable, to present testimony, and to assist in preparing the cross-examination of a State's psychiatric witnesses, the risk of an inaccurate resolution of sanity issues is extremely high. With such assistance, the defendant is fairly able to present at least enough information to the jury, in a meaningful manner, as to permit it to make a sensible determination. [470 U.S. at 80-82, 105 S.Ct. 1087 (footnotes omitted).] The Ake Court “therefore h[e]ld that when a defendant demonstrates to the trial judge that his sanity at the time of the offense is to be a significant factor at trial, the State must, at a minimum, assure the defendant access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense.” 470 U.S. at 83, 105 S.Ct. 1087.

By the same reasoning we have found it essential that indigent defendants be provided with access to experts in particular cases: a chemist in a controlled substance case,FN2 a psychiatrist in a murder case in which insanity was the only contested issue,FN3 and a pathologist in a capital murder case in which the “mechanism of death” was a significant factor.FN4 In each of these cases, as in Ake v. Oklahoma, the defendant made a preliminary showing of a significant issue of fact on which the State would present expert testimony, and which the knowledge of a lay jury would not be expected to encompass.

FN2. McBride v. State, 838 S.W.2d 248 (Tex.Cr.App.1992). FN3. DeFreece v. State, 848 S.W.2d 150 (Tex.Cr.App.1993). FN4. Rey v. State, 897 S.W.2d 333 (Tex.Cr.App.1995).

The assistance of the experts in the cases we have discussed above is unlike the assistance of a polygraph examiner that appellant wanted. Appellant made no preliminary showing of a significant issue of fact on which the State would present expert testimony. (In fact the State did not present expert testimony.) FN5 Nor did appellant show that there was a significant issue of fact which the knowledge of a lay jury would not be expected to encompass. The issue was the credibility of two witnesses, appellant and a police officer, who gave different versions of a conversation between them. This is precisely the kind of issue on which courts routinely turn to lay juries for resolution. FN5. There is no error in refusing to appoint an expert witness to assist an indigent defendant in rebutting a type of expert opinion that the State's witness did not present. Griffith v. State, 983 S.W.2d 282 (Tex.Cr.App.1998).

The Supreme Court recently considered whether the exclusion of polygraph evidence unconstitutionally abridged the right of a defendant to present a defense. The Court held that it did not. United States v. Scheffer, 523 U.S. 303, 118 S.Ct. 1261, 140 L.Ed.2d 413 (1998). The Court noted that “there is simply no consensus that polygraph evidence is reliable.” 523 U.S. at ----, 118 S.Ct. at 1265, 140 L.Ed.2d at 419. The Court also pointed out that the defendant freely exercised his choice to testify as to his version of the facts. 523 U.S. at ----, 118 S.Ct. at 1269, 140 L.Ed.2d at 424. The Court said it “therefore cannot conclude that respondent's defense was significantly impaired by the exclusion of polygraph evidence.” Ibid. This language sharply contrasts with that of Ake v. Oklahoma, in which the Court said that the assistance of a psychiatric expert “may well be crucial to the defendant's ability to marshal his defense.” 470 U.S. at 80, 105 S.Ct. 1087. We hold that the district court did not err in denying appellant's motion. Point of error twenty-four is overruled.

* * *

C. Posttrial juror questioning

In points of error twenty-five and twenty-six, appellant contends that the trial court deprived him of the effective assistance of counsel by: (1) granting the State's motion to quash posttrial defense subpoenas for jurors, and (2) informing jurors that they were under no obligation to answer any questions regarding their service. Appellant concedes that there is caselaw contrary to his position but argues that the caselaw is contrary to the dictates of the right to counsel clauses contained in the Sixth Amendment of the United States Constitution and Article I, § 10 of the Texas Constitution. FN8 In support of his position he cites Stephenson v. State, 494 S.W.2d 900 (Tex.Crim.App.1973) and Stearnes v. Clinton, 780 S.W.2d 216 (Tex.Crim.App.1989). Appellant's argument is flawed and his reliance upon these two cases is misplaced. FN8. Appellant does not contend that state constitutional provision provides different or broader protection than its federal constitutional counterpart. Hence, we address his claims solely on federal constitutional grounds. Johnson v. State, 853 S.W.2d 527, 533 (Tex.Crim.App.1992), cert. denied, 510 U.S. 852, 114 S.Ct. 154, 126 L.Ed.2d 115 (1993).

Our caselaw clearly holds that “[t]he refusal of any or all of the jurors, after their discharge, to talk to appellant's counsel or to sign affidavits relating to conduct in the jury room violates no statute and does not authorize reversal.” Phillips v. State, 511 S.W.2d 22, 30 (Tex.Crim.App.1974); see also Taylor v. State, 420 S.W.2d 601, 608 (Tex.Crim.App.1967), overruled on other grounds, Jackson v. State, 548 S.W.2d 685, 690 n. 1 (Tex.Crim.App.1977). Further, no error occurs when the jurors are informed that they are under no obligation to talk to defense counsel. Phillips, 511 S.W.2d at 30.

A defendant cannot be deprived of the effective assistance of counsel by actions of the trial court unless those actions prevented counsel from doing something he had the legal right to do. Counsel had the right to pursue an investigation on the client's behalf, but nothing prevented counsel from contacting the jurors and attempting to elicit information from them. The jurors simply had no obligation to cooperate with the defense counsel's investigation. In this respect, jurors are no different from any other person who might be a potential witness in a criminal investigation. Nor has appellant cited any authority showing that he was entitled to subpoena the jurors as witnesses. Assuming that such authority might be found in the Compulsory Process Clause of the Sixth Amendment, the defendant would bear the burden of showing that the testimony sought is material. See Coleman v. State, 966 S.W.2d 525, 528 (Tex.Crim.App.1998). Appellant has not attempted to show that the jurors would testify to any matter that would be relevant to a motion for new trial.

Further, Stephenson and Stearnes, relied upon by appellant, are distinguishable from the present case. In Stephenson, the attorney filed a sworn motion for new trial that named three jurors and described their anticipated testimony (discussion of parole law and likelihood of the defendant getting a new trial). 494 S.W.2d at 908-909, 908 n. 6. The motion further stated that the jurors did not want to sign affidavits but were willing to testify if subpoenaed. Id. at 909. Hence, Stephenson is distinguishable from the present case in two respects: (1) the defendant provided evidence that the jurors possessed information material to the motion for new trial, and (2) defense counsel had in fact interviewed the jurors, who expressed a willingness to testify. Neither of those two factors are present in the case at bar. As for Stearnes, that case was a mandamus action seeking to overturn a trial court's order to remove defense counsel because he had interviewed a State's witness. 780 S.W.2d at 217-218. Apparently, the attorney was removed because the trial court “was angered over trial counsel's action in interviewing a State's witness in violation of the District Attorney's rule.” Id. at 223-224. The present case, by contrast, involves neither the removal of an attorney nor a prosecutor's rule forbidding witness interviews.

The authorities cited by appellant show, at most, that the prosecutor and the trial court may not prohibit the interviewing of former jurors. Those authorities do not show that the trial court must guarantee that jurors will submit to defense counsel's questioning. Points of error twenty-five and twenty-six are overruled.

III. PUNISHMENT PHASE A. Parole Eligibility

In points of error one through four, appellant claims the trial court's refusal to instruct the jury at the punishment phase that he would be ineligible for parole for 35 years if sentenced to life violated the Eighth and Fourteenth Amendments of the United States Constitution and Article I, Sections 10, 13, and 19 of the Texas Constitution. We have already addressed these contentions, and we decline appellant's invitation to revisit them. See, e.g., Shannon v. State, 942 S.W.2d 591, 594 (Tex.Crim.App.1996). Similarly, in point of error five, appellant contends the trial court should have allowed him to inform the jurors of the parole law and question them on that subject during voir dire. As we explained in Shannon, “[s]ince parole is not a proper area of inquiry in Texas capital cases, ··· the judge [does] not abuse his discretion on denying [voir dire] questions pertaining to this topic.” Id. at 596. Points of error one through five are overruled.

B. Extraneous offense evidence

In point of error seven, appellant contends the trial court erred in refusing to instruct the jury in the punishment charge on the burden of proof for unadjudicated offenses and bad acts introduced at punishment. We have already concluded that, when the special issues include an instruction on the State's burden of proof, the trial court need not give a separate instruction on extraneous offenses. Burks v. State, 876 S.W.2d 877, 911 (Tex.Crim.App.1994); Boyd v. State, 811 S.W.2d 105, 123-124 (Tex.Crim.App.1991); Lewis v. State, 815 S.W.2d 560, 567 (Tex.Crim.App.1991). Appellant argues that our decision in Mitchell v. State, 931 S.W.2d 950 (Tex.Crim.App.1996) requires us to reach a different conclusion. However, Mitchell was a non-capital case and was based on the language in article 37.07 of the Texas Code of Criminal Procedure which allows both the state and the defendant to offer testimony at the punishment phase “as to any matter the court deems relevant to sentencing, including but not limited to ··· evidence of an extraneous crime or bad act that is shown beyond a reasonable doubt····” Article 37.07, § 3. The evidence in capital cases is controlled by article 37.071, which contains no such restriction on the introduction of extraneous offense evidence. Furthermore, a jury in a non-capital case receives no instruction comparable to the special issues instructions in a capital case; this distinction explains the requirement in noncapital cases that the jury be separately instructed not to consider extraneous offenses unless they are proven beyond a reasonable doubt. We reaffirm our holding that in capital cases, “[w]here the charge to the jury properly requires the State to prove each of the special punishment issues beyond a reasonable doubt, no burden of proof instruction concerning extraneous offenses is required.” Burks, 876 S.W.2d at 911. Point of error seven is overruled.

In point of error eight, appellant contends that the trial court erred in refusing to instruct the jury, at the time the evidence was offered, on the burden of proof for unadjudicated offenses and bad acts introduced at punishment. He relies upon Rankin v. State, 974 S.W.2d 707 (Tex.Crim.App.1996) for the proposition that the trial court must give a limiting instruction at the time extraneous offense evidence is offered. Rankin holds that Texas Rule of Evidence 105 requires a contemporaneous limiting instruction to be given when evidence is offered for a limited purpose. That rule states in relevant part: When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly···· Rule 105(a)(emphasis added and ellipsis inserted). Rule 105 addresses parties and purposes; the rule does not address burdens of proof.

Moreover, Rankin's rationale for giving a contemporaneous instruction does not apply to burden of proof issues. The danger of delaying the giving of a limiting instruction is that the jurors may form an “indelible perception of the defendant” by using that evidence for an improper purpose. 974 S.W.2d at 711-713. For example, when an extraneous offense is admitted in the guilt phase of a trial, failing to give a limiting instruction at the time of admission may result in the jury drawing inferences about the defendant's guilt based upon character conformity, a use of the evidence that was not contemplated by the trial court. The danger then becomes that the improper inference drawn cannot later be erased by an instruction in the charge. By contrast, failing to instruct on the burden of proof does not carry the danger of causing jurors to draw an inference not contemplated by the trial court when the evidence was admitted. Moreover, burden of proof is typically a question jurors encounter when all of the evidence has been taken.FN9 If proof that a defendant committed an extraneous offense is weak, jurors are just as likely to perceive that weakness after all of the evidence has been taken as they are when the extraneous offense was initially admitted. Therefore, we hold that a trial court is not required to give an instruction concerning the burden of proof at the time evidence of unadjudicated offenses and bad acts is admitted. Point of error eight is overruled. FN9. And, by the time the punishment phase of the trial occurs, jurors have already become familiarized with requiring the State to prove criminal acts beyond a reasonable doubt.

In point of error nine, appellant contends that the trial court erred in refusing his requested instruction in the punishment charge to limit the jury's consideration of extraneous unadjudicated offenses or bad acts to the future dangerousness punishment issue.FN10 We have recognized in the past that extraneous offenses may have relevance beyond the future dangerousness issue. Lane v. State, 822 S.W.2d 35, 40 (Tex.Crim.App.1991), cert. denied, 504 U.S. 920, 112 S.Ct. 1968, 118 L.Ed.2d 568 (1992)(extraneous offenses relevant to “deliberateness” special issue). And, we have recently recognized that aggravating circumstances can be considered in connection with the mitigation special issue.FN11 Mosley v. State, 983 S.W.2d 249, 263-264 (Tex.Crim.App., 1998)(victim impact evidence relevant to the mitigation special issue). In Mosley, we explained that aggravating circumstances may be relevant to determine whether a particular mitigating circumstance or set of circumstances is sufficient to warrant a life sentence: FN10. That issue asks: “whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society.” Article 37.071 § 2(b)(1). FN11. The mitigation issue asks: Whether, taking into consideration all of the evidence, including the circumstances of the offense, the defendant's character and background, and the personal moral culpability of the defendant, there is a sufficient mitigating circumstance or circumstances to warrant that a sentence of life imprisonment rather than a death sentence be imposed. Article 37.071 § 2(e).

[The death selection] process could hardly be considered “individualized” if half of the equation (relevant aggravating circumstances) were excluded. We simply recognize ··· that the jury may consider aggravating factors in its selection decision. In determining whether to dispense mercy to a defendant after it has already found the eligibility [for death] factors in the State's favor, the jury is not, and should not be, required to look at mitigating evidence in a vacuum. Id. at 264, n. 18. This reasoning in Mosley applies not only to victim impact testimony but also to other aggravating circumstances, including extraneous offenses. Extraneous offenses are relevant to determine whether the mitigating circumstances offered by the defendant are sufficient to warrant a life sentence. Hence, appellant was not entitled to an instruction limiting the consideration of extraneous offenses to the future dangerousness issue, because those offenses were also relevant to the mitigation special issue. Point of error nine is overruled.

In point of error ten, appellant contends that the trial court erred in refusing his requested instruction in the punishment charge to prohibit the jury from considering evidence of his guilt for the charged crime as evidence that he committed extraneous offenses. He contends that, absent such an instruction, a jury may impermissibly draw the inference that he is guilty of extraneous offenses because commission of the charged crime shows a propensity to commit the extraneous bad acts. While appellant attempts to argue that the constitution is implicated, the “propensity rule” regarding character evidence is simply a court-made rule of evidence, now found in Texas Rule of Evidence 404. However, Article 37.071, not Rule 404, governs the admission of character evidence in a capital trial. Rumbaugh v. State, 589 S.W.2d 414, 418 (Tex.Crim.App.1979)(Legislature abolished rule of evidence regarding extraneous offenses in capital sentencing; this Court has no power to restrict admissibility of such evidence); Vuong v. State, 830 S.W.2d 929, 942 (Tex.Crim.App.1992), cert. denied, 506 U.S. 997, 113 S.Ct. 595, 121 L.Ed.2d 533 (1992)(Rule 404(b) inapplicable to capital sentencing). Nothing in Article 37.071 prohibits drawing propensity inferences from evidence of guilt of the charged crime. Point of error ten is overruled.

In point of error eleven, appellant contends that the trial court erred in refusing to submit special verdict forms requiring jury findings concerning extraneous offenses. This contention has been decided adversely to appellant's position. Matchett v. State, 941 S.W.2d 922, 937 (Tex.Crim.App.1996), cert. denied, 521 U.S. 1107, 117 S.Ct. 2487, 138 L.Ed.2d 994 (1997). In point of error twelve, appellant contends that the admission of unadjudicated extraneous offenses violates Article 37.07. As appellant acknowledges, we have held that Article 37.071, not Article 37.07, applies to capital sentencing proceedings. We have recently reaffirmed this proposition. Matchett, 941 S.W.2d at 937-938. We find no novel or compelling argument to abandon our precedent. Point of error twelve is overruled. In point of error thirteen, appellant contends that admission of unadjudicated extraneous offenses violates the Eighth and Fourteenth Amendments to the United States Constitution. We have previously resolved this claim adversely to his position. Cantu v. State, 939 S.W.2d 627, 648 (Tex.Crim.App.1997), cert. denied, 522 U.S. 994, 118 S.Ct. 557, 139 L.Ed.2d 399 (1997). Point of error thirteen is overruled.

C. Defendant's failure to testify

In point of error fourteen, appellant contends that the trial court erred in refusing to permit him to take the stand in the punishment phase of the trial for the limited purpose of raising mitigation issues. In requesting that he take the stand for a “limited purpose,” appellant sought to limit the State's ability to cross-examine him. He complains that, under the trial court's ruling, had he testified, the State would have been permitted to cross-examine him concerning extraneous offenses. The United States Supreme Court has rejected a similar claim on the ground that the defendant had failed to preserve error. In Luce v. United States, 469 U.S. 38, 105 S.Ct. 460, 83 L.Ed.2d 443 (1984), the defendant attempted to appeal a trial court's ruling that refused to exclude evidence of a prior conviction that the State intended to use for impeachment in the event that the defendant testified. Id. at 39-40, 105 S.Ct. 460. Because the defendant did not testify, the Supreme Court held that error was not preserved. Id. at 43, 105 S.Ct. 460. In support of its holding, the Supreme Court pointed to the difficulties with attempting to conduct a review in the situation before it. The Court would have been required to engage in the difficult task of speculating about (1) the precise nature of the defendant's testimony, (2) whether the trial court's ruling would have remained the same or would have changed as the case unfolded, (3) whether the government would have sought to impeach the defendant with the prior conviction, (4) whether the accused would have testified in any event, and (5) whether any resulting error in permitting impeachment would have been harmless. Id. at 41-42, 105 S.Ct. 460. As in Luce, the present case addresses a defendant's request to foreclose cross-examination about extraneous offenses and his refusal to testify when the trial court denies his request. We find the reasoning in Luce to be applicable here. We hold that appellant has failed to preserve error. Point of error fourteen is overruled.

D. Victim impact evidence

In point of error twenty-two, appellant contends that the trial court erred in admitting victim impact testimony by Curtis Smith, a police officer and an uncle of Stubblefield. Smith testified about the effect of Stubblefield's death on Stubblefield's father and grandmother: Q. Can you tell the jury how Mario's death affected his father? A. It affected him very bad because my brother was-had only one good leg and Mario was his future in being able to do things that he was not able to do as far as moving around and helping him move around; and with the incident happening, he just started deteriorating and which by doing so, he only lasted ten months after Mario's death. Q. And do you know the cause of his death? A. He didn't have the will to live anymore; and he had other physical ailments, also, which he just didn't care anymore. Q. And how old was Prince Stubblefield? A. 42. Q. And was that the only immediate family that Mario had, that is, his mother who died when he was five and his father? Did he have any other brothers and sisters? A. No. Q. How has Mario's death affected your mom? A. She has taken it extremely hard. And being here now, she has very high blood pressure; and I would rather that she had not been here because of it. Appellant contends that this testimony was inadmissible because all victim impact testimony is inadmissible as a matter of law. We have recently held that victim impact testimony is admissible as relevant to the mitigation special issue, subject to the provisions of Tex.R. Evid. 403. Mosley, at 261-265. Appellant does not argue that the evidence is unfairly prejudicial or cumulative under Rule 403, and our examination of the evidence reveals no violation of that rule.FN12 Point of error twenty-two is overruled. FN12. Appellant contends in his brief that the State made improper comparative judgments between appellant and the victim during closing argument. But, appellant did not object and has failed to preserve error. Mosley, at 265.

E. Photographs

In point of error twenty-three, appellant contends that the trial court erred, in the punishment phase, by excluding from evidence six photographs of appellant during his childhood. At trial, appellant contended that the photographs were relevant because they showed some circumstances of his life. Appellant relies upon our decision in Cantu v. State, supra, for the proposition that any information about the accused is relevant to the mitigation special issue. In a plurality opinion, we recently held that childhood photographs were not automatically relevant to the mitigation issue. Rhoades v. State, 934 S.W.2d 113, 125-126 (Tex.Crim.App.1996). Cantu does not hold to the contrary. We reject the notion that every single piece of information about a defendant is relevant without regard to whether that information would tend to show that a life sentence, rather than the death penalty, is warranted. That appellant was once a child, even a happy one, does not, in itself, have any tendency to show that he should receive a life sentence rather than the death penalty. Point of error twenty-three is overruled.

F. Special issues

In point of error fifteen, appellant contends that the statutory mitigation issue is unconstitutional because the issue omits a burden of proof. He relies largely on Walton v. Arizona, 497 U.S. 639, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990). We have decided this issue adversely to appellant. Anderson v. State, 932 S.W.2d 502, 508 (Tex.Crim.App.1996), cert. denied, 521 U.S. 1122, 117 S.Ct. 2517, 138 L.Ed.2d 1019 (1997). We have specifically rejected the argument based upon Walton that appellant makes. Williams v. State, 937 S.W.2d 479 (Tex.Crim.App.1996). Point of error fifteen is overruled. In point of error sixteen, appellant contends that the mitigation issue violates the Eighth Amendment because a meaningful appellate review of the issue is not possible. We have decided this adversely to appellant's position. McFarland v. State, 928 S.W.2d 482, 499 (Tex.Crim.App.1996), cert. denied, 519 U.S. 1119, 117 S.Ct. 966, 136 L.Ed.2d 851 (1997). In point of error seventeen, appellant contends that the mitigation issue is unconstitutional because Article 44.251 requires an appellate sufficiency review of the issue but such a review is impossible. We have decided this contention contrary to appellant's position. McFarland, 928 S.W.2d at 498-499; see also id. at 524-525 (Keller, J. concurring). In points of error eighteen and nineteen, appellant contends that the “12-10” rule embodied in Article 37.071 § 2(d)(2) and (f)(2) is unconstitutional. FN13 He argues that the trial court should have instructed the jury that anything less than a unanimous vote in the State's favor on any of the special issues would result in a life sentence. We have decided this contention contrary to appellant's position. McFarland, 928 S.W.2d at 519; Williams, 937 S.W.2d at 490. FN13. The “12-10” rule is a set of jury instructions requiring at least 10 “no” votes to answer the § 37.071 § 2(b)(e.g. future dangerousness) issues “no” and at least 10 “yes” votes to answer the mitigation issue “yes.” Article 37.071 § 2(d)(2) and (f)(2).

In point of error twenty, appellant contends that the trial court erred in refusing to submit an instruction that evidence may be mitigating even if it does not relate to moral blameworthiness. He contends that the reasoning in Cantu v. State, supra, requires the submission of such an instruction. But Cantu held that the current statutory definitions adequately encompassed the constitutional concept of mitigation. Id. at 648-649. The instructions submitted in the present case tracked the statute. Point of error twenty is overruled. In point of error twenty-one, appellant complains about the trial court's refusal to submit his proposed sympathy instruction in connection with the special issues. Appellant's proposed instruction is virtually identical to the one addressed in our opinion in Johnson v. State, 1997 WL 209527, (Tex.Crim.App.1997)(rehearing granted on other grounds). The instructions the trial court actually submitted are also virtually identical to the instructions submitted in Johnson. In Johnson, we decided this claim adversely to appellant's position. Point of error twenty-one is overruled. The trial court's judgment is affirmed.

MEYERS, J., delivered this concurring opinion, joined by JOHNSON, J.
In point of error twenty-two appellant claims the trial court erred in admitting victim impact evidence regarding the effect of the victim's death on the victim's family members. Appellant argues such evidence is irrelevant to any of the special issues. Appellant's trial took place before Mosley v. State, 983 S.W.2d 249, 264 (Tex.Crim.App. 1998), which held such evidence is relevant to the mitigation special issue. Per Mosley, the majority rejects appellant's relevance claim, and notes the only other limitation on such evidence, Rule 403, was not raised by appellant. Appellant cannot be expected to have anticipated the Court's ruling in Mosley, which came two years after appellant's trial. It was appellant's position at trial, based on caselaw existing at that time, that such evidence was irrelevant. Appellant had no reason to assert Rule 403, which only applies to evidence determined to be relevant.

Moreover, the Court emphasized in Mosley that such evidence is not relevant to the issue of future dangerousness. Since all of the special issues are considered by the jury together, if evidence is relevant to one issue, but not to another, the jury should be instructed to that effect. In appellant's case, the evidence came in at punishment for all purposes, contrary to Mosley. I continue to hold to the view that we ought to examine more closely cases tried prior to this Court's opinion in Mosley, where trial courts' admit victim impact evidence without limitation, in contravention of the few, but specific limitations set forth in Mosley.FN1 See Griffith v. State, 983 S.W.2d 282, 291 (Meyers, J., concurring). Because the victim impact evidence admitted in this case was ultimately harmless, I concur.

FN1. The limitations being that such evidence is patently irrelevant to the issue of future danger, that such evidence is admissible only 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, that there are numerous considerations to make in the context of Rule 403, and that such evidence should not involve comparative worth analyses.” Other issues can be raised under Mosley. Defendants may now waive altogether “submission and reliance” on the mitigation special issue and thereby avoid the State's admission of victim related evidence. Mosley, at 264. At the time of appellant's trial, the law suggested special issues could not be waived. Powell v. State, 897 S.W.2d 307, 314-18 (Tex.Crim.App.1994)(plurality opinion); id. at 318 (Clinton, J., concurring)(holding “deliberateness” issue could not be waived, even affirmatively, by defendant). Mosley held Powell inapplicable to the mitigation issue. We have no way of now knowing what choice appellant would have made had he been aware of this option at the time of his punishment hearing.

MANSFIELD, J., delivered the concurring opinion.
I join the opinion of the Court but write separately with respect to appellant's twenty-fourth point of error. Appellant avers that, as an indigent, he was entitled to a court-appointed polygraph examiner paid for by the State. The polygraph examiner was to conduct a polygraph examination of appellant, the results of which, appellant contends, would have cast doubts on the reliability of police testimony regarding the taking of appellant's confession.FN1 FN1. Appellant claims police officers, especially Officer Brown, misled him into making false statements about being paid to shoot the victim of the instant offense. Appellant testified the shooting was unintentional.

In Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), the Supreme Court held an indigent defendant has a due process right to state-funded expert assistance where the defendant makes a preliminary showing the issue for which he seeks expert assistance is likely to be a significant factor at trial. In Ake, the Court held the indigent defendant was entitled to a state-paid psychiatrist to provide expert assistance as to the issue of future dangerousness at the punishment phase of his capital murder trial. Failure to provide such assistance, the Court held, violated Ake's due process rights, particularly in light of the fact that the State offered expert testimony that Ake was both sane and a future danger, testimony that, unrebutted, was clearly harmful to Ake's defense. In Rey v. State, 897 S.W.2d 333 (Tex.Crim.App.1995), we held an indigent defendant is entitled to a state-paid expert, regardless of the expert's specialty, where said defendant establishes a substantial need for such assistance and denial of said assistance would be fundamentally unfair. Appellant, in my opinion, has not demonstrated that the assistance of an expert in this instance would be of assistance to the jury, the trier of fact. Simply put, appellant alleges Officer Brown's testimony concerning the facts and circumstances surrounding the taking of appellant's statement was not truthful and the polygraph evidence would support this allegation. As determining the truthfulness of a witness is solely within the province of the jury, we have held that expert testimony regarding witness truthfulness is not admissible as it would not be of any assistance to the jury. Yount v. State, 872 S.W.2d 706, 709-711 (Tex.Crim.App.1993); Cohn v. State, 849 S.W.2d 817, 818 (Tex.Crim.App.1993). Furthermore, expert opinion testimony as to the truthfulness of a witness is not admissible under Rule 702. Yount, supra, at 708.

Finally, I note that the United States Supreme Court recently held constitutional the ban against the use of polygraph evidence in military courts-martial. The Court noted the reliability of polygraph evidence is a subject of considerable controversy within the scientific community and thus its exclusion does not implicate constitutional concerns. United States v. Scheffer, 523 U.S. 303, 118 S.Ct. 1261, 140 L.Ed.2d 413 (1998). While I would not necessarily label polygraph evidence as being the product of “junk science,” its reliability is sufficiently suspect, in my opinion, to continue the ban on its use in Texas courts. It is the jury that is the “lie detector.” As polygraph evidence is not admissible, the trial court did not abuse its discretion in denying appellant funds to retain a polygraph examiner. With these comments I join the opinion of the Court.

Jackson v. Dretke, 181 Fed.Appx. 400 (5th Cir. 2006) (Habeas).

Background: Following affirmance of capital murder conviction, 992 S.W.2d 469, and denial of state habeas corpus petition, petitioner sought federal habeas corpus relief. The United States District Court for the Southern District of Texas denied the petition. Petitioner requested a certificate of appealability (COA).

Holdings: The Court of Appeals, Jerry E. Smith, Circuit Judge, held that:
(1) petitioner was not entitled to COA on claim that his confession was involuntary;
(2) petitioner was not entitled to COA on actual innocence claim;
(3) petitioner was entitled to COA on his Batson claim, but state's use of peremptory strikes against black venire members did not indicate racial bias, so as to warrant habeas relief;
(4) petitioner was not entitled to COA on claim that trial court was required to give special instruction that any unadjudicated extraneous offenses introduced during punishment phase of trial needed to be proven beyond a reasonable doubt;
(5) petitioner was not entitled to COA on claim that admission of evidence of unadjudicated extraneous offenses violated his rights under the Eighth and Fourteenth Amendments;
(6) petitioner was not entitled to COA on claim that trial court was required to instruct jury that failure to reach a verdict on two special issues would automatically result in a life sentence under Texas law;
(7) petitioner was not entitled to COA on claim that trial court's instruction on mitigating circumstances violated the Eighth Amendment; and
(8) petitioner was not entitled to appointment of an expert in false confessions to support his claim that his confession was coerced. Request for COA granted in part and denied in part, and judgment affirmed. Dennis, Circuit Judge, concurred in the judgment and filed separate opinion.

Donell Jackson requests a certificate of appealability (“COA”) from the denial of his claim for federal habeas corpus relief under 28 U.S.C. § 2254. We deny a COA as to all but two of Jackson's claims on which a COA is required, because jurists of reason would not find the rejection of them debatable. As for the claim on which we grant a COA, and the claim for which no COA is required, we affirm on the merits.

Jackson was charged with killing his victim for remuneration. The victim had previously testified before a grand jury in its investigation of Jackson's friend, David Smith. Smith indicated in a taped statement that he did not know Jackson was going to shoot the victim. When the police played Smith's statement for Jackson during interrogation, Jackson allegedly replied that Smith had paid him to commit the murder. Jackson then made a taped confession. To shift the blame, Jackson at trial claimed the police had told him to say that Smith had paid him. Jackson was convicted by a jury of capital murder. At sentencing, the state introduced evidence of prior offenses, and Jackson presented evidence of a favorable home life and a learning disability. The jury sentenced him to death, finding that he posed a threat of future dangerousness and that the mitigating evidence was inadequate to warrant a life sentence.

The Texas Court of Criminal Appeals affirmed the conviction and sentence on direct appeal. Jackson filed a concurrent petition for writ of habeas corpus in the trial court, which entered findings of fact and conclusions of law that were adopted by the Court of Criminal Appeals in an order denying habeas relief. Jackson filed a federal habeas petition under § 2254, alleging twenty-two points of error. The district court granted summary judgment denying Jackson's claims, and denied sua sponte a COA as to each claim. Jackson filed a notice of appeal and request for a COA.

* * *

Jackson argues that his confession was involuntary and the product of police misconduct. Specifically, he maintains that, to shift blame to Smith, police told him to say that he received money for the victim's murder; Jackson alleges that discrepancies between the details of his confession and statements made by Smith compel the conclusion that police coerced a confession. The Fifth Amendment provides that no person “shall be compelled in any criminal case to be a witness against himself.” U.S. Const. amend. V. “[A] confession, in order to be admissible, must be free and voluntary: that is, must not be extracted by any sort of threats or violence, nor obtained by any direct or implied promises, however slight, nor by the exertion of any improper influence.” Bram v. United States, 168 U.S. 532, 542-43, 18 S.Ct. 183, 42 L.Ed. 568 (1897) (quoting 3 Russell on Crimes 478 (6th ed.)).

As the district court noted, the admissibility of Jackson's confession might be in doubt if the facts he alleges were true. The jury, however, considered the evidence presented by Jackson and the police at trial, and found that no promises were made to Jackson in exchange for his confession. This credibility determination is squarely within the province of the jury,FN4 and AEDPA tells us to presume that this finding is correct unless rebutted by “clear and convincing evidence.” 28 U.S.C. § 2254(e)(1). Because Jackson did not present any new evidence in his habeas petition that would satisfy this rigorous standard, reasonable jurists could not disagree with the denial of a COA on this issue. FN4. See United States v. Cathey, 259 F.3d 365, 368 (5th Cir.2001).

Jackson contends that the alleged discrepancies between his confession and Smith's statements prove that the confession is false, so there was no evidence to establish that Jackson killed the victim for remuneration. Hence, Jackson maintains that he is actually innocent of capital murder. A claim of actual innocence based on newly discovered evidence is not cognizable for purposes of federal habeas corpus absent an independent constitutional violation. Herrera v. Collins, 954 F.2d 1029, 1034 (5th Cir.1992), aff'd, 506 U.S. 390, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993). This rule recognizes that the purpose of federal habeas corpus is “to ensure that individuals are not imprisoned in violation of the Constitution-not to correct errors of fact.” Herrera, 506 U.S. at 399, 113 S.Ct. 853. A petitioner may prove actual innocence to overcome a procedural default, allowing a federal habeas court to reach the merits of an otherwise barred constitutional claim. Schlup v. Delo, 513 U.S. 298, 316, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995).

Jackson does not allege actual innocence to remove a procedural bar to a separate constitutional claim. Rather, he submits evidence, consisting of testimonial discrepancies and expert opinion that he may suffer from a learning disability and other psychological problems, to diminish the probative value of his confession. He seeks only to remove the evidentiary basis of the jury's conclusion that he committed capital murder; i.e., murder-for-hire. Because this is a free-standing actual innocence claim, no reasonable jurist could disagree that Jackson failed to make “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Therefore, a COA for this claim is denied.

* * *

Jackson avers that he is entitled to a COA because the district court denied his *414 motion for appointment of an expert in false confessions to support his claim that his confession was coerced and therefore inadmissible. Where expert services are “reasonably necessary” to mount a defense in a post-conviction proceeding, the district court may authorize the defense attorneys to obtain such services and shall pay the relevant expenses. 21 U.S.C. § 848(q)(9).FN22 Jackson argues that expert assistance was reasonably necessary because the circumstances surrounding the police interviews of Jackson and Smith raised a question as to the existence of remuneration. Specifically, when the police first interviewed Smith, he made no mention of paying Jackson for the murder. Only after Jackson confessed were police able to establish remuneration by further questioning Smith. FN22. An indigent defendant is entitled to the provision of all reasonably necessary services under, inter alia, § 848(q)(9). 21 U.S.C. § 848(q)(4)(B); Fuller v. Johnson, 114 F.3d 491, 502 (5th Cir.1997). Jackson does not claim indigence, but in any event he would still need to demonstrate, under this section, that provision of a confession expert is “reasonably necessary.”

The state responds by noting that ruling on a motion to provide expert assistance is within the discretion of the district court. Hill v. Johnson, 210 F.3d 481, 487 (5th Cir.2000). Also, the state argues that any testimony rendered by the expert would be procedurally barred in a federal habeas proceeding because it was never presented in state court. Finally, because the jury's credibility determination is entitled to a presumption of correctness, Jackson has not presented evidence to rebut that presumption and make necessary the appointment of an expert.

A COA is not required to appeal the denial of funds for expert assistance. Hill, 210 F.3d at 487 n. 3. Therefore, we may review the claim on direct appeal for abuse of discretion. Id. at 487. We will uphold a denial of funding where the petitioner has “(a) failed to supplement his funding request with a viable constitutional claim that is not procedurally barred, or (b) when the sought-after assistance would only support a meritless claim, or (c) when the sought after assistance would only supplement prior evidence.” Smith v. Dretke, 422 F.3d 269, 288 (5th Cir.2005) (internal citations omitted).

The district court did not abuse its discretion. At trial, Jackson testified that the police told him to confess that Smith paid him for murder in exchange for a lesser charge. The defense also presented two expert witnesses who testified that Jackson had a learning disability and was below average in intelligence, and that Jackson was prone to self-deprecation and other antisocial behaviors. Therefore, the testimony of a false confession expert would merely have supplemented other evidence already available to and considered by the jury. See id. at 288-89 (finding no abuse where expert testimony would merely reinforce testimony already given by defendant).

Even if we were inclined to agree as an initial matter that a false confession expert's testimony was reasonably necessary for Jackson's defense, the relevant statute vests discretion squarely in the district court. FN23 Therefore, we affirm the denial of Jackson's motion for expert assistance. FN23. 21 U.S.C. § 848(q)(9) (stating that “the court may authorize the defendant's attorneys to obtain such services on behalf of the defendant”) (emphasis added). See also Smith, 422 F.3d at 289 (noting that change in AEDPA from the mandatory “shall” to discretionary “may” language in § 848(q)(9) “can only reasonably be construed as changing a mandatory granting of funds to a discretionary granting of funds even if the reasonable necessity language is complied with”).

For the above reasons, Jackson's request for a COA is GRANTED in part and DENIED in part. The judgment on the issue on which we grant a COA, and on the claim for which no COA is required, is AFFIRMED.