Friday, March 5, 2010
Media Advisory: Joshua Maxwell scheduled for execution

AUSTIN – Texas Attorney General Greg Abbott offers the following information about Joshua Maxwell, who is scheduled to be executed after 6 p.m. on Thursday, March 11, 2010. A Bexar County jury sentenced Maxwell to death for the robbery, kidnaping and murder of Rudolfo Lopes.

FACTS OF THE CRIME

Rudolfo Lopes, a sergeant with the Bexar County Sheriff's Department, was murdered in San Antonio on or about October 11, 2000. Lopes’ body was discovered on Oct. 12 in a field behind a northeast San Antonio strip center. He was blindfolded and his hands were bound together. Police found a spent shell casing on the ground near the body. The medical examiner determined that Lopes’ death was caused by a single gunshot wound to the top of his head from a 9-millimeter bullet.

A woman who lived in a residential area behind the strip center stated that between 9 and 10 on the night of the killing, she heard a loud gunshot. The owner of a business in the strip center stated that about 9 p.m., he saw a gold Chevrolet pickup drive to the back of the strip center, where it was parked next to a gap in a privacy fence that separated the strip center from an adjacent field. He stated the vehicle was occupied by a man and a woman.

Lopes was last seen alive by his wife when he left for work on the morning of Oct 11 in his gold four-door Chevrolet pickup. Lopes often carried a briefcase and wore a gold chain necklace with a cross and anchor pendant. He normally carried a Glock pistol issued by the Sheriff’s Department.

Evidence showed that shortly after 7 p.m. on October 11, someone using Lopes’ ATM card made two successful cash withdrawals—$300 and $100—from the Southwest Military Branch of the Security Service Federal Credit Union. A surveillance camera showed a woman leaning out of the driver’s side of a vehicle using the ATM.

On October 17, in downtown San Francisco, California, two police officers saw a pickup speed through an intersection and almost hit a pedestrian. The driver led officers on a chase through downtown San Francisco and fired a shot at the officers. The bullet hit the officers’ windshield and came within inches of striking one of the officers. Additional police officers joined in the chase. The driver continued shooting at police and police returned fire.

The chase ended when the truck -- identified as Lopes' vehicle -- became stuck in traffic. The driver and passenger of the truck were identified as Joshua Maxwell and Tess McFarland. When he was arrested, Maxwell was wearing a gold-chain necklace.

The police searched the truck and found Lopes’ badge and his credit card from the Security Federal Credit Union. Police also found Lopes’ Glock handgun, a Chinese 9-millimeter pistol, and a briefcase.

A firearms examiner testified that the Chinese 9-millimeter pistol found in Lopes’s truck was the weapon that fired the bullet that was recovered from Lopes’chest and the shell casing that was found near his body.

While Maxwell was in the Bexar County Jail awaiting trial for killing Lopes, he threatened to kill a jail guard just like he had killed Lopes. Maxwell then mimicked how Lopes had begged for his life, stating repeatedly, ‘Please don’t kill me.’ A jail guard testified that Maxwell described his response to Lopes: Shut up, . . . I’m going to kill you anyway.

PUNISHMENT-RELATED EVIDENCE

During the punishment phase of his trial, the State introduced evidence that Maxwell had robbed and murdered a man in Mooresville, Indiana, about a month before killing Lopes. Evidence showed that on September 10 and 11, 2000, Maxwell and McFarland kidnapped Robbie Bott and made him buy some big-ticket items at department stores and withdraw cash from automatic teller machines. Early in the morning of September 12, Bott’s car was found abandoned and aflame about fifteen minutes from his Mooresville home. His charred, hogtied body was found in the trunk. The autopsy showed that he had been killed by a shot to the torso.

By the time he killed Botts, Maxwell already had juvenile and adult records. From the age of thirteen in 1991, Maxwell had juvenile court adjudications for resisting law enforcement, auto thefts, theft, criminal mischief, escape, disorderly conduct, and residential entry.

After Maxwell left the juvenile system in 1994, he developed an adult criminal record for auto theft, firearm possession, criminal trespass, and marijuana possession. In 1997, he pleaded guilty to a felony theft charge in Marion County, Indiana, and received a three-year sentence, which ran concurrently with a three-year sentence for attempted theft in Johnson County, Indiana. In fact, when he killed Botts in September 2000, Maxwell had been out of prison about five months.

Punishment phase evidence also showed that Maxwell was a member of or connected with street gangs. And he broke into his sister’s house in Marion County, Indiana, and stole jewelry, clothing, and shoes, and then tried to pawn the items. The mother of one of Maxwell’s daughters, acknowledged that she had taken out a restraining order against Maxwell and that he had never supported his daughter financially.

Maxwell’s mother acknowledged that her son had stolen jewelry, guns, and a car from his family. And before McFarland and Maxwell left Indiana in September 2000, they left McFarland’s infant son with Maxwell’s mother. They promised to retrieve the child in a few days but never returned.

Evidence showed that while Maxwell was in Bexar County Jail awaiting trial, he assaulted and bloodied a guard after being denied television privileges.

PROCEDURAL HISTORY
Jan. 4, 2001 -- A Bexar County grand jury indicted Maxwell for capital murder.
Feb. 27, 2002 -- A jury found Simpson guilty of capital murder.
March 12, 2002 -- After a punishment hearing, the court sentenced Maxwell to death.
May 21, 2004 -- Maxwell filed his application for state habeas corpus relief.
Nov. 17, 2004 -- Texas Court of Criminal Appeals affirmed the conviction and sentence.
Oct. 4, 2006 -- Texas Court of Criminal Appeals denied habeas corpus relief.
Sept. 21, 2007 -- Petition for federal habeas corpus relief filed in U.S. District Court.
July 30, 2008 -- U.S. District Court denied federal habeas corpus relief.
Aug. 27, 2008 -- The U.S. District Court denied Maxwell’s request for reconsideration.
Sept. 18, 2009 -- The United States Court of Appeals affirmed denial.
March 1, 2010 -- The U.S. Supreme Court denied writ of certiorari.

Texas Execution Information Center by David Carson.

Joshua Maxwell, 31, was executed by lethal injection on 11 March 2010 in Huntsville, Texas for the murder of a sheriff's deputy.

Rudolfo Lopes, a sergeant with the Bexar County Sheriff's Department, was scheduled to work at the Bexar County Jail from 10 a.m. to 9 p.m. on 11 October 2000. When his wife saw him leave the house that morning in his gold four-door Chevrolet pickup, he was wearing a gold chain necklace with a cross and anchor pendant. He was also carrying a briefcase and his department-issue Glock pistol. He never reported for work or came home that night.

Shortly after 7 p.m. that evening, someone using Lopes's ATM card made two successful cash withdrawals of $300 and $100 at a San Antonio branch of the Security Service Federal Credit Union. A surveillance camera showed a woman leaning out of the driver's side of a vehicle using the ATM.

At about 9 p.m., Charles Dudley, the owner of a martial arts school in a San Antonio strip center, left for work with this family. They noticed a gold Chevrolet pickup truck driving around to the back of the center. They decided to follow the truck to see what was going on. Dudley saw the truck parked next to a hole in the privacy fence that separated the strip center from the field behind it. He observed a woman with long, bushy hair and glasses sitting in the driver's seat and a man slumped down in the passenger seat. As Dudley drove by, the man and woman stared straight ahead. Thinking it odd, Dudley slowly by them a second time and put his headlights on the truck. The man and woman continued sitting in the truck, staring straight ahead.

Between 9 and 10 p.m., Debra Guzman, who lived in a residential area behind the strip center, was watching the Presidential Debate with her husband. She heard one loud gunshot some time during the debate.

A young girl discovered Lopes's body in the field behind the strip center on 12 October. Lopes was blindfolded and was lying face down with his arms inside his shirt and his hands bound together with a clear telephone cord. A white cotton cord was tied around one of his wrists. Police found a 9-mm shell casing on the ground near his body. He died from a single gunshot to the chest.

At 4:15 a.m. on 12 October, a security guard at the Windsor Park Mall in San Antonio ticketed a gray Chevrolet Corsica with Florida license plates for overnight parking. The abandoned Corsica continued to receive parking tickets until it was reported to police on October 15. The police discovered that the vehicle identification number and the license plate did not match and that the vehicle was flagged in reference to a homicide case out of state. Inside the car were letters referring to Joshua Maxwell, then 22, and Tessie McFarland, 20. Police also found a photograph of Maxwell and McFarland, a motel receipt bearing the name Trina Dorris, a package of cigarettes, and a dead lizard.

At 4:40 p.m. on 17 October in San Francisco, California, police officers Joseph Juarez and Jesus Pena observed a gold pickup truck speeding through an intersection, almost hitting a pedestrian. They followed the truck and pulled it over. They approached the truck and ordered the driver to turn off the engine. The male driver instead drove off and led them on a chase through downtown San Francisco. At one point during the chase, the driver fired a shot that struck the officers' windshield. More police joined the chase, and the driver and police exchanged gunfire. The chase ended when the truck became stuck in traffic.

The driver and passenger of the truck were identified as Maxwell and McFarland. Maxwell was wearing a gold necklace when he was arrested. Police searched the truck and found Lopes's badge, credit card, Glock pistol, and briefcase. They also found a Chinese 9-mm pistol and an identification card from the State of Indiana with McFarland's picture and the name Trina Dorris.

Maxwell told police he lured Lopes by placing a personal ad with a telephone dating service, saying he wanted to meet gay or bisexual men who were willing to have sex while his wife watched.

At Maxwell's trial, the medical examiner testified that the victim was killed by a single gunshot to the top of his head. The bullet exited the victim's chin, then re-entered his body through his chest. A firearms expert testified that the Chinese pistol found in the victim's truck was the murder weapon.

Robert Brown testified that prior to Lopes's murder, he met Maxwell and McFarland in San Antonio after responding to their ad on a "dating telephone line" advertised in a magazine. Two or three days after their initial meeting, the couple - who called themselves "Mo" and "Trina" - told him they were in town for a friend's wedding and needed a place to stay overnight. They spent the night at Brown's apartment and gave him a ride to the liquor store the next day. Brown testified that they drove a gray car with Florida license plates, and that there was a container in the car that had a chameleon inside.

Officers Calvin Robinson and Wendell Busby testified that they were working at the Bexar County Jail while Maxwell was awaiting trial. Maxwell became agitated and threatened to kill Robinson, just as he had killed their colleague. Maxwell then mimicked his murder of Lopes and mocked how he begged for his life.

Maxwell and McFarland were wanted for the murder of Robbie Bott in Mooresville, Indiana on 12 September. Bott was abducted and forced to put expensive items on his credit card and to make cash withdrawals for two days before eventually being shot in the torso. His body was placed in the trunk of his car, which was then set on fire. Maxwell also had a lengthy juvenile and adult criminal record in Indiana, including a felony theft conviction.

A jury convicted Maxwell of the capital of murder Rudolfo Lopes in March 2002 and sentenced him to death. The Texas Court of Criminal Appeals affirmed the conviction and sentence in November 2004. All of his subsequent appeals in state and federal court were denied.

He was also convicted in Indiana of Bott's killing and was sentenced to 91 years in prison.

Tessie McFarland testified against her boyfriend at the trial for Lopes's murder. She pleaded guilty to capital murder and was sentenced to life in prison. She also pleaded guilty to confinement and arson in Bott's killing and received a 30-year sentence. She remains in custody in Texas as of this writing. "There's really no explanation," Maxwell told a reporter from death row a few days before his execution. "All the way from the top to the bottom, just senseless."

Maxwell said that his three teenaged children live Indiana and have visited him a couple of times, but mostly write. "I love my kids, and I regret the fact that this guy's family is going through this," he said. Despite his remorse, Maxwell protested against his upcoming execution. "I need to be locked up, no doubt about it," he said. "But me dying isn't going to solve anything."

"I'm still very angry," Sgt. Lopes's sister said when asked to comment on the upcoming execution. "Maxwell, when he was housed here in Bexar County, he mocked my brother. He mocked that he begged for his life, and I'll always remember that." "I don't think there's closure," she said. I don't know what that is. But, it's a way of moving on."

At his execution, Maxwell made a last statement that alternated sentiments of remorse with arguments against his execution. "I want to address you. I am sorry. I don't know who you are," he said to relatives of his two victims, who watched from a few feet away. "I am sorry I put you through some things that I can't take back. I am sorry. This isn't going to change anything. Sorry for putting you through this. This is creating more victims. I am sorry I put you through this. I love you man, I love you. This is not gonna change anything."

"Let this be a lesson," he continued. "Your decisions affect everybody." After offering more apologies and expressing love to his family, he concluded his last statement. The lethal injection was then started. He was pronounced dead at 6:27 p.m.

MySanAntonio

"Lawman's killer put to death," by Michelle Mondo. (Web Posted: 03/12/2010 12:00 CST)

Express-News HUNTSVILLE — A Bexar County death row inmate who was executed Thursday for robbing and killing a sheriff's sergeant nearly 10 years ago used his final words to apologize. “I hurt a lot of people with the decisions I made,” said Joshua Maxwell, 31. “I can't be more sorry than I am right now.”

Maxwell was the fourth inmate to be executed this year in Huntsville and the first from Bexar County. The U.S. Supreme Court declined to hear his appeal March 1, and his attorney did not file a request for clemency.

Crying and choked up, Maxwell addressed the families of his two victims: Robby Bott of Indiana and Sgt. Rudolfo “Rudy” Lopes, both of whom were 45. “This person who did that 10 years ago isn't the same person you see today,” he said. “I hurt a lot of people with decisions I made.”

He was pronounced dead at 6:27 p.m., nine minutes after the lethal dose of drugs began flowing through his body.

Maxwell's mother, his half-sister and his son, Dylan, 18, huddled together and cried as they listened to him repeatedly apologize and express his love for them. Relatives flanked Lopes' widow, Alma. His sister had a hand on the shoulder of Bott's mother, Shirley, as Maxwell began to speak. “I want to address you. I am sorry,” he said when he looked their way. “I don't know who you are. I am sorry. I put you through some things that I can't take back.”

As she left the chamber, Bott's mother grasped a heart-shaped locket hanging around her neck. “I have my son's ashes in here,” she said. “I wanted him to be here.”

Maxwell was convicted of capital murder for the October 2000 robbery and shooting of Lopes, a 15-year-law enforcement veteran. Tessie McFarland, 30, Maxwell's girlfriend at the time, pleaded guilty to murder and is serving a life sentence.

The couple killed both men during a nationwide crime spree that began in their home state of Indiana and ended with a gun battle with police in San Francisco.

A young girl found Lopes' body dumped behind a strip mall on Oct. 12, 2000, a day after he had disappeared, court documents show. Bound and blindfolded, he had been shot in the head. His new pickup was missing.

One month earlier, just south of Speedway, Ind., Bott's charred body was found in the trunk of his car. Kidnapped, he had been tortured before he was killed, according to court documents. Once arrested, Maxwell confessed to both killings.

After speaking to the victims' families Thursday, Maxwell turned his attention to his own. “I hurt the Lopes family. Let this be a lesson,” he told his son. “Your decisions affect everybody. Look after your sister for me.” Dylan Maxwell, wearing a shirt with his father's picture, touched the glass and told him, “I love you.”

Houston Chronicle

"Indiana man who murdered 2 in San Antonio set to die." (Associated Press March 11, 2010)

HUNTSVILLE — An Indiana man who embarked on a cross-country crime spree with his girlfriend a decade ago that ended in a gun battle with police in San Francisco faced execution today for robbing and murdering a sheriff's officer in San Antonio.

No late court appeals were filed for 31-year-old Joshua Maxwell, who was condemned for gunning down Bexar County Sheriff's Department Sgt. Rudy Lopes and stealing his truck. The 45-year-old veteran jailer was off duty at the time. The U.S. Supreme Court last week refused to review Maxwell's case.

Maxwell would be the fourth Texas inmate executed this year. He was among at least 10 Texas death row inmates with execution dates in the coming months, including two more later this month.

In late 2000, Maxwell and his girlfriend, Tessie McFarland, crisscrossed the country in a deadly crime spree, beginning in Indiana with the robbery and slaying of Robby Bott, 45, a FedEx mechanic from Mooresville, Ind. Lopes was killed a month later in October 2000, his bound and blindfolded body dumped behind a San Antonio shopping mall. “Absolutely cold-blooded murders,” Jim Kopp, the Bexar County assistant district attorney who prosecuted Maxwell, recalled.

Less than a week after Lopes' body was found, Maxwell and McFarland were arrested after a police chase and running gun battle through downtown San Francisco after Maxwell, driving Lopes' stolen truck, refused to be pulled over for running a red light.

“There's really no explanation,” Maxwell told The San Antonio Express-News recently from death row. “All the way from the top to the bottom, just senseless. “I need to be locked up, no doubt about it. But me dying isn't going to solve anything.” He also acknowledged he committed a number of robberies, still unsolved, during the trek from Indiana to Florida, Texas and California.

McFarland, a former stripper, was wounded during the police chase in San Francisco. Lopes' credit card, badge and service weapon were recovered from the truck, along with a Chinese-made 9 mm pistol determined to be the gun used to fatally shoot Lopes in the top of the head.

In news reports of the time, the couple were compared to the main characters in the 1994 film “Natural Born Killers,” who go on a murderous road trip, and also to Bonnie Parker and Clyde Barrow, the Depression-era robbers and killers whose notoriety was rekindled with a namesake movie in 1967.

Maxwell was convicted of capital murder and sentenced to death in Lopes' killing. In Indiana, he was convicted of murder, felony confinement, arson and theft in Bott's slaying. Maxwell had a juvenile record in Indiana, a history with street gangs and adult convictions for auto theft, firearms possession, criminal trespass and felony theft. Bott's murder came about five months after Maxwell got out of prison.

McFarland, 30, is serving a life prison term in Texas after pleading guilty to Lopes' slaying. In Indiana, she initially was charged with murder, criminal confinement, arson and theft in Bott's killing, but pleaded guilty to confinement and arson as part of a plea deal.

Scheduled for execution next in Texas is Hank Skinner, 47, facing lethal injection March 24 for a triple slaying in Pampa on New Year's Eve in 1993.

WIBC Radio

"Indiana Man Executed in Texas," by Don Riley. (Network Indiana 3/12/2010)

The State of Texas executed an Indiana man Thursday evening. 31-year-old Joshua Maxwell of Indianapolis died by lethal injection at 7:27 p.m. Eastern Time for the murder of Bayer County Sheriff's Deputy Rudy Lopes in San Antonio in 2000.

Earlier, in Speedway, Indiana, Maxwell killed Robby Bott, a FedEx mechanic from Mooresville, and burned his body.Maxwell’s cross-country crime spree ended when he and his girlfriend were captured after a shootout with police in downtown San Francisco.

Robby Bott's parents reportedly joined three relatives of Lopes on Thursday as witnesses in the Texas death chamber in Huntsville. Maxwell's son, mother and half-sister watched through a window in an adjacent room. Before the lethal injection was administered, Maxwell repeatedly apologized to his victims' families.

After Maxwell was pronounced dead, Shirley Bott reportedly turned to a state official accompanying her and showed a heart-shaped locket she wore on a chain around her neck. "I have my son's ashes in here," she said. "I wanted him to be here."

Maxwell's girlfriend accomplice, 30 year-old Tessie McFarland of Indianapolis, is serving a life sentence at a women's prison in Texas.

"Killer Sentenced to Death in Texas Gets Prison Term for Speedway Murder," by John Bartholomew. (3/24/2005)

A man who already faces the death penalty in Texas has been sentenced to 91 years in Marion County Criminal Court for murder, criminal confinement, and arson.

Joshua Maxwell was convicted of killing Robbie Bott of Speedway in 2001. Prosecutors say after murdering Bott, Maxwell and co- defendant Tessie McFarland fled to Texas where they killed a Bexar County Sheriff's deputy.

McFarland received a life sentence for the Texas crime, and still faces a May trial in Indianapolis for Bott's murder.

Oddly enough, Maxwell may not get to serve his sentence in Indiana. That’s because it would begin only after Maxwell serves his sentence in Texas – which is the death penalty.

Fort Worth Star Telegram

"Man executed for 2000 crime spree," by Michael Graczyk. (AP Thursday, Mar. 11, 2010)

HUNTSVILLE -- His voice breaking and choking back tears, Joshua Maxwell apologized repeatedly Thursday night for killing two men, including a Bexar County sheriff's officer, during cross-country crime spree with his girlfriend a decade ago.

"The person that did that 10 years ago isn't the same person you see today," he said moments before lethal drugs began flowing. "I hurt a lot of people with decisions I made. I can't be more sorry than I am right now."

Maxwell, 31, told relatives of the victims that he'd "put you through some things that I can't take back." But he said his execution was "creating more victims." "This is not going to change anything," he said.

He was pronounced dead at 6:27 p.m., the fourth Texas inmate executed this year. At least 10 Texas Death Row inmates have execution dates in the coming months. No late court appeals were filed for Maxwell.

In late 2000, Maxwell and his girlfriend, Tessie McFarland, started a crime spree in Indiana with the robbery and slaying of Robby Bott, 45, a FedEx mechanic. A month later in San Antonio, they killed sheriff's Sgt. Rudy Lopes, 45, who was off-duty at the time. Lopes' bound and blindfolded body was dumped behind a shopping mall.

"Absolutely cold-blooded murders," Jim Kopp, the Bexar County assistant district attorney who prosecuted Maxwell, recalled this week. Maxwell and McFarland were arrested after a chase and running gunbattle with police through downtown San Francisco. Maxwell, driving Lopes' stolen truck, refused to pull over after running a red light.

McFarland, a former stripper, was wounded during the chase. Lopes' credit card, badge and service weapon were recovered from the truck, along with a Chinese-made 9 mm pistol that was used to shoot him in the head. McFarland, 30, is serving a life prison term in Texas after pleading guilty to Lopes' slaying. In Indiana, she pled guilty to confinement and arson as part of a plea deal.

Maxwell was sentenced to death in Texas in Lopes' killing, and in Indiana, he was convicted of murder and other charges in Bott's slaying.

Maxwell told The San Antonio Express-News recently that he committed a number of robberies during the couple's trek from Indiana to Florida, Texas and California, cases that are still open..

Bott's parents joined three relatives of Lopes as witnesses in the Texas death chamber Thursday. Maxwell's son, mother and half-sister watched through a window in an adjacent room. After Maxwell was pronounced dead, Shirley Bott turned to a state official accompanying her and showed a heart-shaped locket she wore on a chain around her neck. "I have my son's ashes in here," she said. "I wanted him to be here."

ProDeathPenalty.Com

On September 10th, 11th, and 12th of 2000, Joshua Maxwell and his girlfriend, Tessie McFarland, confined Robby Bott, stole property from Bott’s residence, forced Bott to buy items for them at a Meijer store, killed Bott by shooting him in the face and strangling him, put him in the trunk of his own car, and set Bott and his car on fire.

Bott's body was found in Marion County, Indiana, on September 12, 2000. His badly charred body was inside the trunk of his Mercury Cougar automobile, which had been set on fire. He had suffered a fatal gunshot wound to his chest, and his hands and feet had been bound together behind his back. The medical examiner did not recover a bullet from Bott's body during the autopsy. When police arrived at Bott's residence in Mooresville, Indiana, they discovered that the back door was open and the house was in disarray. Maxwell's fingerprints matched the fingerprints on a vodka bottle and a wine bottle in the kitchen. McFarland's fingerprints matched the fingerprints on the refrigerator door, a videotape, and a pizza box.

A pizza delivery slip found in Bott's bedroom contained Maxwell's name and the address of a house in nearby Indianapolis where Maxwell had been staying with McFarland. Police searched the house in Indianapolis and found several items belonging to Bott, including his wallet, various forms of identification, credit cards, and bank statements. Maxwell's fingerprints matched the fingerprints on a sales receipt in Bott's wallet. Substances that appeared to be blood and vomit trailed from the basement to the outside of the Indianapolis residence. The basement smelled strongly of chemicals and contained some empty gallon jugs of muriatic acid. A spent cartridge casing was recovered from an overturned wooden wardrobe cabinet in the basement. A spent bullet was recovered from a sweater inside the wardrobe cabinet. A firearms examiner testified that the gun that fired the spent bullet and spent cartridge casing was the same gun that was used to kill Lopes in this case.

The couple fled to Texas after murdering Bott. Rudolfo Lopes, a sergeant with the Bexar County, Texas Sheriff's Department, was murdered in San Antonio on or about October 11, 2000. San Antonio resident Robert Brown encountered Maxwell and Tess McFarland prior to Lopes's murder. Brown met Maxwell, who went by the name "Mo," and McFarland, who went by the name "Trina," by responding to their ad on a "dating telephone line" advertised in a magazine. The first time Maxwell and McFarland came to Brown's apartment, they talked for about an hour and Brown gave them money to buy food. Brown testified that they stole some rings from him at that time. Two or three days later, Maxwell and McFarland told Brown that they were in town for a friend's wedding and needed a place to stay overnight. They spent the night at Brown's apartment and gave him a ride to a liquor store the next day. Brown testified that they had a gray three-door vehicle with Florida license plates. He further testified that the car was dirty and filthy-smelling, and that there was a container in the car with a chameleon lizard inside it. Brown let them use his phone before they left that afternoon. After they left, a man called asking for "Mo" and "Trina."

Lopes's wife testified that Lopes was scheduled to work at the Bexar County Jail from 10:00 a.m. to 9:00 p.m. on October 11. Lopes left for work that morning in his gold four-door Chevrolet pickup truck, but he never returned home that night. Lopes often carried a briefcase and wore a gold chain necklace with a cross and anchor pendant. Lopes normally carried a Glock pistol issued by the Sheriff's Department. An investigations officer with the Security Service Federal Credit Union testified that Lopes had a checking account, a savings account, an ATM card, and a Visa card at the credit union. Records show that shortly after 7:00 p.m. on October 11, someone using Lopes's ATM card at the credit union's Southwest Military Branch made two successful withdrawals of $300 and $100. The person using the card attempted to withdraw more money from Lopes's checking and savings accounts, but the transactions were denied. A surveillance camera photographed a woman leaning out of the driver's side of a vehicle using the ATM.

Charles Dudley, the owner of a martial arts school in a northeast San Antonio strip center, testified that he left work with his family about 9:00 p.m. on October 11. They noticed a gold Chevrolet pickup truck driving around to the back of the strip center, so they got into Dudley's car and drove behind the strip center to see what was going on. The truck was parked next to a hole in the privacy fence that separated the strip center from the field behind it. Dudley observed a woman with long, bushy hair and glasses sitting in the driver's seat and a man slumped down in the passenger seat. As Dudley drove by, the man and the woman stared straight ahead. Dudley thought it odd and slowly drove by them a second time and put his headlights on the truck. The man and the woman continued sitting in the truck staring straight ahead.

A woman who lived in a residential area behind the strip center testified that she and her husband were watching the Presidential Debate on the evening of October 11. She heard one loud gunshot between 9:00 and 10:00 p.m.

Lopes's body was discovered in the field behind the strip center on October 12. He was blindfolded and was lying face down with his arms inside his shirt and his hands bound together. There was a white cotton cord tied around one of his wrists, and both wrists were tightly bound together with a clear telephone cord. Police found a spent shell casing on the ground near Lopes's body. Maxwell and McFarland then fled to California. A security guard at the Windsor Park Mall in San Antonio first ticketed a gray Chevrolet Corsica with Florida license plates for overnight parking at 4:15 a.m. on October 12. The abandoned vehicle continued to receive parking tickets until it was reported to police on October 15. Police discovered that the vehicle identification number and the license plate did not match and that the vehicle was "flagged" from out of state in reference to another homicide case. Inside the car were letters containing references to Maxwell and McFarland, a package of cigarettes, photographs of McFarland and Maxwell, a "Scotsman Inn" hotel receipt with the name "Trina Dorris," and a dead lizard.

At 4:40 p.m. on October 17, police officers Joseph Juarez and Jesus Pena were on duty in downtown San Francisco, California, when they saw a gold pickup truck speed through an intersection and almost hit a pedestrian. The officers stopped the truck, exited their vehicle, approached the truck from the rear, and asked the male driver to turn off his engine. The driver instead drove away and led them on a chase through downtown San Francisco. Halfway through the chase, the driver of the truck shot at them. The bullet hit the officers' windshield and came within inches of striking Officer Juarez. Glass from the windshield sprayed the inside of the police car and scratched Officer Pena's eyes. Additional police officers became involved in the chase. The driver continued shooting at police and the police returned fire. Officer Richard Seidell testified that at one point the driver "reached out with his left arm and hand and raised his middle finger and flipped us off." The chase finally ended when the truck became stuck in traffic. The truck was identified as Lopes's vehicle.

The driver and passenger of the truck were identified as Maxwell and McFarland. McFarland suffered a neck injury during the chase. Maxwell was wearing a gold-chain necklace when he was apprehended. The police searched the truck and found Lopes's badge, Lopes's credit card from the Security Federal Credit Union, and a State of Indiana identification card for "Trina Dorris" with McFarland's picture. Police also found in the truck, Lopes's Glock pistol, a Chinese 9-millimeter pistol, and a briefcase in the truck.

The medical examiner who performed Lopes's autopsy testified that his death was caused by a single gunshot wound to the top of his head. The 9-millimeter bullet entered the top of Lopes's head, exited his chin, re-entered his body through his chest, and lodged between his sternum and his heart. A firearms examiner testified that the Chinese 9-millimeter pistol found in Lopes's truck was the weapon that fired the bullet that was recovered from Lopes's chest and the shell casing that was found near his body.

Detention officers Calvin Robinson and Wendell Busby testified about an incident involving Maxwell while he was in the Bexar County Jail awaiting trial. Robinson testified that Maxwell was banging on his cell door at about 6:10 p.m. on September 1, 2001. Maxwell told Robinson he was upset about not receiving his account balance earlier that day. When Robinson told Maxwell he would get his account balance for him later, Maxwell became more upset and began banging on the door even harder. Maxwell called Robinson a "black, mother-fucking nigger" and said that he would "bust [Robinson's] face if he could get out of his cell." He also said "if he could get out of that cell, he'd kill [Robinson], just like he had killed [his] home boy, Lopes." Robinson told Maxwell to calm down and went back into the office where Busby was located. Maxwell, using a "pleading-type of voice," then mimicked how Lopes had begged for his life, stating repeatedly, "Please don't kill me." Maxwell used a stronger, higher, and more authoritarian voice when he described his response: "Shut up, bitch . . . I'm going to kill you anyway." Busby's testimony confirmed Robinson's version of events. Busby added that another inmate yelled something at Maxwell after Maxwell mimicked Lopes, and Maxwell replied, "I don't care what I said." Both Robinson and Busby denied doing anything to provoke Maxwell.

Defense witness Sergeant David Ryker testified that he investigated the incident at the Bexar County Jail on September 1. Maxwell made no mention of Lopes and told Ryker that Robinson was harassing him. Defense counsel also called an evidence technician with the San Antonio Police Department who testified that there was never a comparison made on a plaster shoe cast of a footprint taken at the crime scene on October 12, 2000. Finally, Bexar County Deputy Sheriff Daniel Grasser testified that he could not locate the shoes that Maxwell was wearing when he was arrested in San Francisco.

The Bexar County, Texas jury convicted Joshua Maxwell, of killing Rudolfo Lopes in the course of committing a robbery or kidnapping. Pursuant to the jury's answers to the special issues questions regarding future dangerousness and mitigation, the trial court sentenced Maxwell to death.

Bott Murder Evidence: On October 17, 2000, police in San Francisco attempted to conduct a routine traffic stop of Maxwell and McFarland because their car had run a red light. A vehicle chase ensued, shots were fired, and Maxwell eventually crashed the car. McFarland was shot, and Maxwell sustained a one-and-a-half by two inch abrasion on the side of his forehead. Inside their vehicle, police discovered a 9 mm firearm. When police searched Lopes's truck after Maxwell and McFarland were captured in California, they found a map with a route drawn from Indiana to Florida to Texas to California. Police also found a videotape that depicted Maxwell admitting his involvement in a murder. Maxwell explained on the videotape that he forced a man to take him on a shopping spree, stole items from his house, killed him, put him in his car, and burned him.

Police took Maxwell to the station. Inspector Kelly Carroll of the San Francisco Police Department informed Maxwell he would stay with Maxwell until the other inspectors arrived for an interview. Carroll offered Maxwell a soda or water. Paramedics treated the small abrasion on his Maxwell’s face from the crash, and then they left. During the time they waited, Inspector Carroll and Maxwell had a short conversation, but Carroll did not question Maxwell regarding the alleged crimes. Thereafter, Inspector Tony Camilleri of the San Francisco Police Department arrived and advised Maxwell of his Miranda rights. Maxwell did not appear intoxicated, and he appeared to understand his rights. Maxwell agreed to speak with the officers and gave a taped interview. In the interview Maxwell admitted purchasing merchandise with Bott’s credit cards, stealing from Bott, confining Bott, shooting Bott in the head, killing Bott, and setting Bott’s body on fire.

Less than two hours later, Maxwell gave a second videotaped confession to Inspector Casillas of the San Francisco Police Department. This confession was essentially the same as the first. Then, about two hours after the second confession, Maxwell discussed the case via speaker phone with Captain Joel Rush of the Speedway, Indiana, Police Department. Maxwell detailed the crimes he committed against Bott, and San Francisco police videotaped this confession as well. The State charged Maxwell with murder, confinement, arson, and theft. Maxwell filed a motion to suppress the videotaped confessions, and the trial court denied that motion. At trial, the State offered as evidence the three videotapes of Maxwell confessing. Over Maxwell’s objection, the court admitted the videotapes.

The jury found Maxwell guilty as charged. The court sentenced Maxwell to sixty-five years for murder, three years for confinement, twenty years for arson, and three years for theft. It then ordered all those sentences served consecutively.

"I think I'll feel like I have some closure, that I'll know he is no longer around here living, even though he's locked up," Bott's father, 79-year-old Alfred Bott told a local reporter. He said he would not be at the execution, but that his daughter, who works in Saudi Arabia, will fly 16 hours to attend.

Maxwell v. State, 2004 WL 3094649 (Tex.Cr.App. 2004). (Direct Appeal)

Background: Defendant was convicted in the trial court, Bexar County, of capital murder and sentenced to death. Defendant appealed.

Holdings: The Court of Criminal Appeals, Price, J., held that: (1) evidence was legally and factually sufficient to support capital murder conviction; (2) venire members who indicated during voir dire that they could not impose the death penalty were challengeable for cause; (3) administration of jury oath at beginning of trial that varied slightly from the statutorily mandated language was not reversible error; (4) evidence that defendant fled from police during routine traffic stop and engaged in high-speed chase was admissible as indicative of guilt; (5) unauthorized use of a motor vehicle and unlawfully carrying a weapon were not lesser-included offenses of capital murder; (6) defendant was not entitled to jury instruction on lesser-included offenses of robbery and theft; (7) juror's improper contact with her brother during punishment phase of proceeding did not warrant mistrial; (8) evidence that defendant had robbed and murdered a man in another state about a month prior to offense for which he was on trial was admissible at punishment phase; and (9) evidence supported future dangerousness special issue. Affirmed.

PRICE, J., delivered the opinion of the Court in which KELLER, P.J., and MEYERS, WOMACK, JOHNSON, KEASLER, HOLCOMB, and COCHRAN, JJ ., joined.

A Bexar County jury convicted the appellant, Joshua Maxwell, of killing Rudolfo Lopes in the course of committing a robbery or kidnapping.FN1 Pursuant to the jury's answers to the special issues set forth in Code of Criminal Procedure Article 37.071, Sections 2(b) and 2(e), the trial court sentenced the appellant to death.FN2 Direct appeal to this Court is automatic.FN3 The appellant raises eight points of error challenging his conviction and sentence. We reject each of his contentions and affirm the trial court's judgment.

FN1. Tex. Pen.Code § 19.03(a). FN2. Art. 37.071, § 2(g). Unless otherwise indicated, all references to Articles refer to the Texas Code of Criminal Procedure. FN3. Art. 37.071, § 2(h).

I. FACTS

The evidence at trial showed that Rudolfo Lopes, a sergeant with the Bexar County Sheriff's Department, was murdered in San Antonio on or about October 11, 2000. San Antonio resident Robert Brown encountered the appellant and Tess McFarland prior to Lopes's murder. Brown met the appellant, who went by the name “Mo,” and McFarland, who went by the name “Trina,” by responding to their ad on a “dating telephone line” advertised in a magazine. The first time the appellant and McFarland came to Brown's apartment, they talked for about an hour and Brown gave them money to buy food. Brown testified that they stole some rings from him at that time. Two or three days later, the appellant and McFarland told Brown that they were in town for a friend's wedding and needed a place to stay overnight. They spent the night at Brown's apartment and gave him a ride to a liquor store the next day. Brown testified that they had a gray three-door vehicle with Florida license plates. He further testified that the car was dirty and filthy-smelling, and that there was a container in the car with a chameleon lizard inside it. Brown let them use his phone before they left that afternoon. After they left, a man called asking for “Mo” and “Trina.”

Lopes's wife testified that Lopes was scheduled to work at the Bexar County Jail from 10:00 a.m. to 9:00 p.m. on October 11. Lopes left for work that morning in his gold four-door Chevrolet pickup truck, but he never returned home that night. Lopes often carried a briefcase and wore a gold chain necklace with a cross and anchor pendant. Lopes normally carried a Glock pistol issued by the Sheriff's Department.

An investigations officer with the Security Service Federal Credit Union testified that Lopes had a checking account, a savings account, an ATM card, and a Visa card at the credit union. Records show that shortly after 7:00 p.m. on October 11, someone using Lopes's ATM card at the credit union's Southwest Military Branch made two successful withdrawals of $300 and $100. The person using the card attempted to withdraw more money from Lopes's checking and savings accounts, but the transactions were denied. A surveillance camera photographed a woman leaning out of the driver's side of a vehicle using the ATM.

Charles Dudley, the owner of a martial arts school in a northeast San Antonio strip center, testified that he left work with his family about 9:00 p.m. on October 11. They noticed a gold Chevrolet pickup truck driving around to the back of the strip center, so they got into Dudley's car and drove behind the strip center to see what was going on. The truck was parked next to a hole in the privacy fence that separated the strip center from the field behind it. Dudley observed a woman with long, bushy hair and glasses sitting in the driver's seat and a man slumped down in the passenger seat. As Dudley drove by, the man and the woman stared straight ahead. Dudley thought it odd and slowly drove by them a second time and put his headlights on the truck. The man and the woman continued sitting in the truck staring straight ahead.

Debra Guzman, who lived in a residential area behind the strip center, testified that she and her husband were watching the Presidential Debate on the evening of October 11. She heard one loud gunshot between 9:00 and 10:00 p.m.

Lopes's body was discovered in the field behind the strip center on October 12. He was blindfolded and was lying face down with his arms inside his shirt and his hands bound together. There was a white cotton cord tied around one of his wrists, and both wrists were tightly bound together with a clear telephone cord. Police found a spent shell casing on the ground near Lopes's body.

A security guard at the Windsor Park Mall in San Antonio first ticketed a gray Chevrolet Corsica with Florida license plates for overnight parking at 4:15 a.m. on October 12. The abandoned vehicle continued to receive parking tickets until it was reported to police on October 15. Police discovered that the vehicle identification number and the license plate did not match and that the vehicle was “flagged” from out of state in reference to another homicide case. Inside the car were letters containing references to the appellant and McFarland, a package of cigarettes, photographs of McFarland and the appellant, a “Scotsman Inn” hotel receipt with the name “Trina Dorris,” and a dead lizard. At 4:40 p.m. on October 17, police officers Joseph Juarez and Jesus Pena were on duty in downtown San Francisco, California, when they saw a gold pickup truck speed through an intersection and almost hit a pedestrian. The officers stopped the truck, exited their vehicle, approached the truck from the rear, and asked the male driver to turn off his engine. The driver instead drove away and led them on a chase through downtown San Francisco. Halfway through the chase, the driver of the truck shot at them. The bullet hit the officers' windshield and came within inches of striking Officer Juarez. Glass from the windshield sprayed the inside of the police car and scratched Officer Pena's eyes. Additional police officers became involved in the chase. The driver continued shooting at police and the police returned fire. Officer Richard Seidell testified that at one point the driver “reached out with his left arm and hand and raised his middle finger and flipped us off.”

The chase finally ended when the truck became stuck in traffic. The truck was identified as Lopes's vehicle. The driver and passenger of the truck were identified as the appellant and McFarland. McFarland suffered a neck injury during the chase. The appellant was wearing a gold-chain necklace when he was apprehended.

The police searched the truck and found Lopes's badge, Lopes's credit card from the Security Federal Credit Union, and a State of Indiana identification card for “Trina Dorris” with McFarland's picture. Police also found in the truck, Lopes's Glock pistol, a Chinese 9-millimeter pistol, and a briefcase in the truck.

The medical examiner who performed Lopes's autopsy testified that his death was caused by a single gunshot wound to the top of his head. The 9-millimeter bullet entered the top of Lopes's head, exited his chin, re-entered his body through his chest, and lodged between his sternum and his heart. A firearms examiner testified that the Chinese 9-millimeter pistol found in Lopes's truck was the weapon that fired the bullet that was recovered from Lopes's chest and the shell casing that was found near his body.

Detention officers Calvin Robinson and Wendell Busby testified about an incident involving the appellant while he was in the Bexar County Jail awaiting trial. Robinson testified that the appellant was banging on his cell door at about 6:10 p.m. on September 1, 2001. The appellant told Robinson he was upset about not receiving his account balance earlier that day. When Robinson told the appellant he would get his account balance for him later, the appellant became more upset and began banging on the door even harder. The appellant called Robinson a “black, mother-fucking nigger” and said that he would “bust [Robinson's] face if he could get out of his cell.” He also said “if he could get out of that cell, he'd kill [Robinson], just like he had killed [his] home boy, Lopes.” Robinson told the appellant to calm down and went back into the office where Busby was located. The appellant, using a “pleading-type of voice,” then mimicked how Lopes had begged for his life, stating repeatedly, “Please don't kill me.” The appellant used a stronger, higher, and more authoritarian voice when he described his response: “Shut up, bitch ... I'm going to kill you anyway.”

Busby's testimony confirmed Robinson's version of events. Busby added that another inmate yelled something at the appellant after the appellant mimicked Lopes, and the appellant replied, “I don't care what I said.” Both Robinson and Busby denied doing anything to provoke the appellant.

Defense witness Sergeant David Ryker testified that he investigated the incident at the Bexar County Jail on September 1. The appellant made no mention of Lopes and told Ryker that Robinson was harassing him. Defense counsel also called an evidence technician with the San Antonio Police Department who testified that there was never a comparison made on a plaster shoe cast of a footprint taken at the crime scene on October 12, 2000. Finally, Bexar County Deputy Sheriff Daniel Grasser testified that he could not locate the shoes that the appellant was wearing when he was arrested in San Francisco.

II. SUFFICIENCY OF THE EVIDENCE
A. Legal Sufficiency
In his seventh point of error, the appellant challenges the legal sufficiency of the evidence during the guilt phase of the trial. In order to convict the appellant of capital murder, the charge required the jury to find beyond a reasonable doubt that the appellant intentionally committed murder in the course of committing or attempting to commit kidnapping or robbery.

In evaluating the legal sufficiency of the evidence, we view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt.FN4 When the trial court's charge authorized the jury to convict on alternative theories, as it did in this case, the verdict of guilt will be upheld if the evidence was sufficient on any one of the theories. FN5

FN4. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). FN5. Ladd v. State, 3 S.W.3d 547, 557 (Tex.Crim.App.1999).

The appellant argues that “the evidence was legally insufficient to prove that he had anything to do with the actual death of [Lopes] .” He attempts to shift the blame to McFarland, arguing that she was the only person shown on the credit-union surveillance tape shortly after 7:00 p.m. on October 11. However, the State presented evidence that McFarland was not acting alone two hours later. Dudley testified that he saw a woman and a man sitting in the gold Chevy pickup truck behind the strip center about 9:00 p.m., and Guzman testified that she heard a single gunshot sometime between 9:00 and 10:00 p.m.

The appellant's statement to Officers Robinson and Busby in the Bexar County Jail is also highly probative of his guilt. He acknowledges that he “made a statement at the Bexar County Jail describing how [Lopes] had died,” but argues that “it could easily have been [McFarland] that described this to [him].” The appellant's statement was not a mere description of the circumstances of Lopes's death, it was an admission of his direct involvement in the murder. The appellant told Robinson that he would kill him “just like he had killed [his] home boy, Lopes.”

The appellant also complains that the State “relied heavily” on his flight to avoid arrest in San Francisco as evidence of his guilt. Although the appellant's flight was indicative of guilt, it was certainly not the only evidence against him. The evidence at trial showed that Lopes was bound and was taken to the field behind the strip center where he was shot and killed. The appellant admitted to detention officers that he killed Lopes and imitated the way he threatened Lopes when he begged for his life. When the appellant was apprehended in San Francisco, he was in possession of not only Lopes's vehicle and personal belongings, but also the gun that was used to kill him. Based on the evidence at trial, a rational jury could have concluded beyond a reasonable doubt that the appellant committed murder in the course of kidnapping or robbery.FN6 Point of error seven is overruled. FN6. Jackson, 443 U.S. at 319.

B. Factual Sufficiency
The appellant challenges the factual sufficiency of the evidence in his eighth point of error. In a factual sufficiency review, we view all the evidence in a neutral light and set aside the verdict only if (1) the evidence was too weak to support a finding of guilt beyond a reasonable doubt or (2) if the contrary evidence was so strong that the evidence in favor of the verdict could not have established guilt beyond a reasonable doubt.FN7 The appellant challenges the factual suffiiency of the evidence under the first prong only.

FN7. Zuniga v. State, No. 539-02, slip op. at 14, 2004 Tex.Crim.App. LEXIS 668 (Tex.Crim.App., delivered April 21, 2004).

The appellant points the finger at McFarland and argues that the State failed to prove that he was the one who actually killed Lopes. The appellant's statement to Robinson and Busby in the Bexar County Jail, however, was a significant piece of evidence showing that he did in fact kill Lopes. The appellant complains about the “circumstantial nature” of this case. The value of circumstantial evidence is often equal to, or even greater than, that of direct evidence.FN8 Evidence that the appellant possessed Lopes's property and the murder weapon and fled from police to avoid arrest was also highly probative of his guilt. FN8. Goodman, 66 S.W.3d at 296.

We cannot say that the evidence was so weak that the jury could not have found guilt beyond a reasonable doubt. Point of error eight is overruled.

III. VOIR DIRE
In his first point of error, the appellant contends the trial court erroneously granted the State's challenges for cause to six venire members: Ofelia Hernandez, Amy Martinez Whitehead, Sylvia Holguin, Mary Jane Gignac, Judith Gee, and Charlie McNeil. The appellant asserts that this violated his rights under the Fifth and Fourteenth Amendments to the United States Constitution and Witherspoon. FN9. Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968).

Venire members who can set aside their beliefs against capital punishment and honestly answer the special issues are not challengeable for cause.FN10 Venire members are challengeable for cause if their views regarding the death penalty would prevent or substantially impair the performance of their duties in accordance with their instructions and oath.FN11 FN10. Id., at 522. FN11. Wainwright v. Witt, 469 U.S. 412, 424, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985).

We review a trial court's ruling on a challenge for cause with considerable deference because the trial court is in the best position to evaluate a venire member's demeanor and responses.FN12 We will reverse a trial court's ruling on a challenge for cause only if a clear abuse of discretion is evident. FN13 When a venire member's answers are vacillating, unclear, or contradictory, we accord particular deference to the trial court's decision. FN14 We will not second guess the trial court when the venire members are persistently uncertain about their ability to follow the law.FN15

FN12. Colburn v. State, 966 S.W.2d 511, 517 (Tex.Crim.App.1998). FN13. Ibid. FN14. Ibid. FN15. Ibid.

A. Hernandez
Hernandez initially testified during voir dire that she was “not one to agree with the death penalty” and that she could not, under any circumstances, vote in such a way that someone could be put to death. She also expressed concern about her ability to serve as a juror due to her feelings about the unsolved, recent murder of a close friend.FN16 Upon further questioning by the prosecutor, she again said that she did not think she could impose the death penalty:

FN16. Neither the prosecutor nor defense counsel challenged Hernandez on this basis. A. I would not consider it. Me. Q. You, yourself, could not? A. No. Q. Are those based upon your religious views, personal views, just the way you feel? A. Its not the way I feel, its just that I would not-I don't-I can't-it is very hard to decide if it is a yes or a no. Yes, I want the death penalty, the capital for what they did. But then, I, in my heart I feel that- Q. That you yourself could never vote to impose the death penalty? A. I would feel, in me-yes. Of course, God is there for all of us. Let God be the judge of that. Q. Rather than you? A. I don't think that I would be able to decide that. Defense counsel then questioned Hernandez on the issue: Q. My question is, although you have strong feelings about the death penalty, can you still follow the court's instructions and listen to the evidence and make a decision based upon what you hear from the witness stand? A. Yes. If I am to serve and I am there, of course I will listen- Q. Okay. A. -to the trial. I am not-what I am trying to say is, I will not-I don't think I would be the right person- Q. Okay. A. to send somebody to the death penalty. Q. Well- A. Presuming they were sent. There has to be a trial in order for-you cannot decide that, Okay, he is innocent; no, he is guilty. Q. Uh-huh. A. You can't just answer those questions right there and then, like you are telling me now. Because I haven't heard the trial. I don't know what happened. Q. I understand. That is why we have trials. Like you say, we have to have trials. We can't just say somebody is guilty or not guilty. People have to make a decision based upon the evidence, what the witnesses say and stuff, okay? As a juror that is what you would have to do. Can you do that? A. I don't think so. I don't think that I would be. It is not because of what happened to my friend....

In granting the prosecutor's challenge for cause, the trial court stated that it did not think that Hernandez could set aside her beliefs against capital punishment and honestly answer the special issues. The trial court's decision is supported by the record. The trial court did not clearly abuse its discretion in granting the prosecutor's challenge for cause to Hernandez. FN17. Colburn, 966 S.W.2d at 517.

B. Whitehead
When the prosecutor first asked Whitehead to explain her feelings about the death penalty, she stated, “I don't believe in it under any circumstances.” She also stated that she was not familiar with the process for imposing the death penalty in a capital murder trial. She again stated that she could not impose the death penalty after the prosecutor explained the process to her.

Whitehead answered differently after defense counsel further explained the process for imposing the death penalty. Defense counsel asked, “Do you think you could follow the court's instructions, the charge that would be given to you, and the law, and temporarily set your opinions about the death penalty aside and answer those questions?” Whitehead responded, “Yes. I probably could.”

Whitehead again changed her answers after the prosecutor explained that by answering the special issues she was essentially deciding whether or not a defendant would get the death penalty:

Q. Now, having said that, can you truthfully set your opinions aside about the death penalty? That is, you are opposed to the death penalty. Can you set those feelings aside and answer these questions based upon the evidence or are your feelings such that would prevent you from doing that? A. I would not. It would prevent me from doing that, if I knew. * * * Q. Could you ever answer those questions yes, yes and no, knowing that, by those answers, the death penalty is imposed? A. No, I could not. I couldn't. Q. And is that because of your feelings about the death penalty? A. Yes.

Upon further questioning by defense counsel, Whitehead again stated that she could not answer the special issues in such a way as to impose the death penalty. The trial court asked her if she would ignore the evidence and always answer the special issues so that the death penalty would not be imposed. Whitehead replied, “Probably, if it-yes. I mean, I just have really strong beliefs about something like that and I don't know if I could live with myself.” Defense counsel asked her one final time, “Regardless of what the evidence is, you would always answer in such a way where the death penalty would not be imposed; is that what you are saying?” Whitehead replied, “Yes.”

Although Whitehead vacillated as to whether she could set aside her beliefs regarding capital punishment and honestly answer the special issues, she ultimately testified that she could not do so; thus, we defer to the trial court's discretion. FN18. Ibid.

C. Holguin
We next turn to Holguin. The prosecutor explained the different types of underlying offenses that would elevate a murder to capital murder, and asked Holguin if they were the types of offenses for which the death penalty might be appropriate. Holguin replied, “Yes. But, you know, that's a very broad question. It just depends on the circumstances. I don't look at things an eye for an eye, tooth for a tooth; it just depends on what is presented.” The prosecutor explained that the case at hand involved murder in the course of robbery, and Holguin stated that she did not think that murder in the course of robbery would warrant the death penalty. Holguin, however, later stated: “If all the facts were there and the evidence proves that it was intentional, and that he did really intend to kill him, along with robbing him or whatever, kidnapping, then I may consider that, I may consider that, it just depends on what is presented. Because, I give everyone the benefit of the doubt .”

When the prosecutor explained the process for imposing the death penalty in a capital murder trial, Holguin stated that she could fairly and honestly answer the special issues based on the evidence. She expressed her belief that if a defendant is sentenced to life in prison, he should not be eligible for parole, but stated that this belief would not influence her in answering the special issues.

Holguin reiterated to defense counsel that her thoughts on parole eligibility for life-sentenced defendants would not affect her answers to the special issues. Defense counsel then asked her about her previous statement that murder in the course of robbery would not warrant the death penalty:

Q. Okay. Now, I know you were talking about your feelings about the death penalty. At first, you didn't think if a person committed murder in the course of a robbery, you didn't think that warranted the death penalty. Okay? A. Right. Q. How do you feel about that after we have had the discussion so far? A. The same. Q. Okay. Do you feel like if the Court gave you the instructions that you have to base your decision solely on what you have heard from the witness stand, what evidence has been presented, do you feel like you could do that? A. Yes. The prosecutor then questioned Holguin again and the following exchange occurred: Q. Capital murder in the course of robbery, capital murder in the course of kidnapping, it is an intentional killing in the course of robbery or an intentional killing in the course of kidnapping. All I am asking is what your personal feelings are. Should the death penalty ever been imposed in one of those cases? A. I don't think so. Q. If the state proves capital murder in the course of a robbery or capital murder in the course of a kidnapping, beyond a reasonable doubt, and that is what it is, and you get to the punishment phase, would you always vote so that the death penalty-would you always answer these questions so that the death penalty would not be imposed? A. So, that it wouldn't be imposed? Q. Would not be? A. Yes. I would answer yes to that. Q. Because, in your mind, it shouldn't be imposed for capital murder in the course of robbery or kidnapping? A. Correct. Well, it just depends on the evidence.

Holguin again expressed some confusion on the subject, and the trial court continued to questioned her: THE COURT: Here is the question: The State of Texas has provided that capital murder involves certain types of crimes. Direct capital murder would be, for example, murder of a child, intentionally, under the age of six. Murder of a police officer or peace officer in the performance of their duties, would also be capital murder. If someone commits, intentionally commits a murder during the course of a robbery, with a weapon-say armed robbery. The state also says that if a person intentionally does the killing during the robbery, then that person is eligible to be charged with capital murder and the state can seek the death penalty. Are you automatically going to say that that sort of a person should not receive the death penalty? [DEFENSE COUNSEL]: Judge, she is entitled to say that because, under the third question, which is the Penry nullification, a particular type of capital murder, it may be that, given the circumstances of the offense, which she is entitled to take into account- THE COURT: Well, I am asking if she can consider it. Are you saying that you could not consider the death penalty for someone accused of that kind of a case, if it is proven to you beyond a reasonable doubt that it was an intentional killing? [HOLGUIN]: Yes. THE COURT: You could not? [HOLGUIN]: I could not. You are saying that I could not- THE COURT: I am asking you. Are you saying that you are not able to ever assess a death penalty for an intentional killing during the commission of a robbery, or during the commission of a kidnapping? [HOLGUIN]: That I could not- THE COURT: Consider it. [HOLGUIN]: No, no. THE COURT: Okay. You are saying you would never be able to consider that? [HOLGUIN]: Right.

The prosecutor challenged Holguin for cause “based upon her inability to follow the law.” Over defense counsel's objections, the trial court granted the prosecutor's challenge for cause. One of the theories alleged in the indictment was murder in the course of robbery. Because Holguin vacillated, then expressed her inability to consider the death penalty under that particular circumstance, we will defer to the trial court's discretion. FN19. Ibid.

D. Gignac
Gignac stated in her jury questionnaire that she was opposed to capital punishment under any circumstances due to her religious beliefs. When the prosecutor asked Gignac to express her thoughts about the death penalty during voir dire, she stated: “My belief is, I don't feel I could judge. I am not God and I cannot say whether a person should live or die. I wouldn't go out an[d] hurt somebody and I don't-I couldn't do that to the worst people in the world, even if that person murdered somebody personal to me, to my family.” Gignac further testified that she was “born to a Catholic family” and was taught that “if somebody slaps your face you turn your cheek and have them slap the other side.” She stated that she could not set aside her beliefs about the death penalty and that she could never answer the special issues in such a way as to impose the death penalty.

When questioned by defense counsel, Gignac again stated that she did not believe in the death penalty. She acknowledged that it caused her stress to even discuss the issue. The trial court finally asked, “Your religious beliefs would preclude you, in any circumstance, any circumstance that would be conceivable to you, to ever even consider a death penalty; is that what you're saying?” Gignac responded, “Yes, sir.”

Gignac clearly expressed that she could not set aside her beliefs against capital punishment and honestly answer the special issues. The trial court properly granted the State's challenge for cause to Gignac. FN20. Ibid.

E. Gee
When the trial court questioned Gee regarding her feelings about the death penalty, she stated, “I do have strong feelings on capital punishment. And, bottom line, I do not feel I could, in all good faith on my part-I cannot assign death to anybody.” Gee stated that she could decide guilt or innocence based on the evidence, but that she could not follow the law and consider the evidence if doing so would result in the imposition of the death sentence. She reiterated upon questioning by the prosecutor that she was not in favor of the death penalty. She acknowledged that she could not vote for the death penalty regardless of the facts and circumstances of the case. Defense counsel declined to question Gee, but objected to the prosecutor's challenge for cause. On this record, we cannot conclude that the trial court clearly abused its discretion to grant the prosecutor's challenge for cause to Gee. FN21. Ibid.

F. McNeil
McNeil first testified that he was concerned with his ability to “render a fair judgment” due to his personal feelings about the death penalty. He stated in response to questioning by the prosecutor that he did not believe that he had the right to take someone else's life and that he did not want that on his conscience. The prosecutor discussed the different ways to commit capital murder and asked McNeil if he could have an “open mind” about the death penalty being appropriate in those types of cases. McNeil responded, “I would have to say no.” The prosecutor then explained the process for imposing the death penalty and asked McNeil if he could honestly answer the special issues in such a way as to impose the death penalty:

A. Okay. I guess-well, based upon what, you know, you presented to me, explained to me, I feel that I would be able to present it fair, without being biased. So-I didn't really understand the actual process. Q. Uh-huh. A. I would say yes. Q. Okay. You are willing to take each question and, knowing that if you answer it in that way, like I said, the judge is bound by what you say and he has to impose the death penalty. If you answer it in the way that I said. A. Yes. Upon further questioning by the prosecutor, McNeil acknowledged that he stated in his jury questionnaire that he did not believe in capital punishment under any circumstances. The prosecutor asked him if he could put aside his beliefs in order to fairly evaluate the evidence and consider the death penalty. McNeil asked the prosecutor to explain the process for imposing the death penalty again. After the prosecutor explained the process, the following exchange occurred: Q. So, I guess, what we really need to know is, are you truthfully going to be able to set aside the opinion that you have about the death penalty in order to listen to the evidence with an open mind and truly consider the option of the death penalty? A. Yeah. But, I would like to correct myself. The way you explained them, broken them down to me, and knowing my honest beliefs on this, I am going to have to say no, I guess. Because if-me, personally, if I took the chance and, if selected, knowing these things, and it came out to be the death penalty, you know, that is almost putting yourself in a situation. So, I would have to say no, no. Q. Then you are telling us that you cannot honestly participate in a process where the answers to those questions as yes, yes and no, if you, and knowing that now, you cannot participate, honestly, in that process that might impose the death penalty? A. Right. Yes. That is correct. McNeil continued to express reservations about his ability to serve as a juror in the instant case when questioned by defense counsel: Q. Let me say, it is going to be hard for anybody to sit on this jury because-I mean, we are-this is reality right here. The state wants to execute this man right here. It is going to be hard for any juror, then, on this case. Okay? But, like I said, he is entitled to have somebody that is opposed to the death penalty sit on the jury, just like the state is entitled to have somebody that favors the death penalty, if they can set aside [their] personal feelings and make a decision based upon the evidence. That is the bottom line. Can you do that? A. I would have to say no, knowing what may be the outcome. Because there is always the possibility it could go either way. I guess that is my true feelings. I could go and listen to the evidence with the other jurors, and go by this list, but-I mean, ultimately, based upon how this is answered, this person's life is-if it came to death penalty I would feel that I contributed to that. Granted, if this person, if he is found guilty, I don't know, I feel that, I guess, with the death penalty, I feel that it is an easy way out. If you take somebody's life, I think that you-he should be allowed to live and deal with it. But, based upon what we are talking about here, it would be hard. Q. So, regardless of what the state proved, regardless of what they put on, you would always answer these questions in such a way where a life sentence would be imposed instead of [the] death penalty? A. Yes. The prosecutor challenged McNeil for cause and defense counsel objected, arguing that “at one point” McNeil said he could set aside his beliefs and honestly answer the special issues. Although McNeil vacillated at one point, he ultimately testified that he could not set aside his beliefs and answer the special issues in such a way as to impose the death penalty; thus, we defer to the trial court's discretion.FN22 Point of error one is overruled. FN22. Ibid.

IV. JURY OATH
In his fifth point of error, the appellant argues that “[t]he trial court abused its discretion when it failed to administer the required oath to the jury pursuant to [A]rticle 35.22 of the Texas Code of Criminal Procedure, in violation of the Sixth and Fourteenth Amendments to the United States Constitution and Article 1, Section 10 of the Texas Constitution.” Article 35.22 provides as follows:

When the jury has been selected, the following oath shall be administered them by the court or under its direction: “You and each of you do solemnly swear that in the case of the State of Texas against the defendant, you will a true verdict render according to the law and the evidence, so help you God.”

After jury selection, the trial court administered the oath to the jury using the following language: “Do you and each one of you solemnly swear or affirm that you will a true sentence return, based on the evidence and the facts in this case, so help you God?” The appellant complains that the oath was not in compliance with Article 35.22 because the trial court used the word “sentence” in place of the word “verdict.”

Defense counsel failed to object on this basis when the trial court administered the oath at the beginning of the trial. After closing arguments during the guilt phase of the trial, defense counsel made the following request: “Your Honor, before the case is submitted to the jury, we would ask that the jury be sworn, as required by 35.22, of the Code of Criminal Procedure.” Defense counsel stated that this was not done at the beginning of the trial. The trial court replied, “I believe you're wrong, but I will go ahead and redo that, if you would like.” The prosecutor countered, “It's unnecessary, judge. You have already sworn in this jury. They don't need to hear it twice. It's been done. If you want to, it's fine.” The trial court then overruled defense counsel's request and sent the jury to the jury room. Shortly thereafter, the trial court reconsidered its ruling and proceeded to the door of the jury room to administer the oath. The trial court stated, “Now, this time, out of an abundance of caution, even though I believe the record will reflect this jury was duly sworn, I am going to give the oath under 35.22, as requested by the defense.” Defense counsel objected that the oath was untimely, and the trial court overruled the objection and administered the oath as follows:

THE COURT: All right. Would all of you please stand and raise your right hand? Do you and each of you solemnly swear that in the case of the State of Texas against the defendant, Joshua Maxwell, you will a true verdict render, according to the law and the evidence, so help you God? JURORS: I do.

The appellant asserts that the jury was unsworn because the oath that the trial court administered to it at the beginning of the trial was not in the form prescribed by Article 35.22. He argues that it is mandatory for the jury to be given the oath in the form prescribed by Article 35.22, citing Howard, Crisp, and Leer v. StateFN23 in support of his claim. In Howard, the judgment of conviction was reversed because the jury was not sworn, as provided by the statute, when impaneled to try the particular case at hand. FN24 In Crisp, the judgment of conviction was reversed because the trial court omitted “so help you God” when administering the oath.FN25 In Leer, the judgment of conviction was reversed because “another and different oath was administered to the jury than the one prescribed by law.” FN26 These cases can all be distinguished from the case at hand because here the proper and correct jury oath was read to the jury before jury deliberation.

FN23. Leer v. State, 2 Tex. Ct.App. 495 (1877). FN24. Howard v. State, 80 Tex.Crim. 588, 192 S.W. 770, 773 (1917). FN25. Crisp v. State, 87 Tex.Crim. 137, 220 S.W. 1104, 1106 (1920). The holding that the oath must include “so help you God” was overruled in Craig v. State, 480 S.W.2d 680, 684 (Tex.Crim.App.1972). FN26. Leer, 2 Tex. Ct.App. at 496.

We have held that the complete failure to administer the proper jury oath is a reversible error that may be raised for the first time on appeal.FN27 However, in this case, there was not a complete failure in the administration of the jury oath. The trial court administered the jury oath at the beginning of trial with a slight variance. Defense counsel failed to object at that time. Instead, defense counsel waited until after closing arguments and at the time immediately before the jury was to begin deliberations to raise this issue. The current rules of procedural default require a defendant to object “at a time when the trial court is in a proper position to do something about it.” FN28 The proper time in this case to raise an objection was at the beginning of trial, and the trial court did do something about the variance; when the issue was raised, the trial court promptly gave the oath.

FN27. White v. State, 629 S.W.2d 701, 704 (Tex.Crim.App.1981) (citing Howard v. State, 80 Tex.Crim. 588, 192 S.W. 770 (1917)). FN28. See Posey v. State, 966 S.W.2d 57, 62 (Tex.Crim.App.1998) (citing Lankston v. State, 827 S.W.2d 907, 909 (Tex.Crim.App.1992)).

Furthermore, the appellant never objected at trial on the basis of the Sixth and Fourteenth Amendments to the United States Constitution and Article 1, Section 10 of the Texas Constitution. As a result these claims were not preserved for review. Point of error five is overruled.

V. EVIDENCE OF FLIGHT
In his second point of error, the appellant asserts that the trial court erroneously admitted uncharged-misconduct evidence during the guilt phase of the trial. He complains specifically about the evidence of the high-speed chase and the shoot-out with police that occurred during his flight from police officers in San Francisco. He argues that this evidence was inadmissible because it was irrelevant, cumulative, and more prejudicial than probative. FN29 He also contends that the admission of this evidence violated his pretrial motion in limine. FN29. Tex.R. Evid. 401, 402, 403.

Evidence that a defendant fled is admissible as a circumstance from which an inference of guilt may be drawn.FN30 Before evidence that the defendant fled may be admitted, however, it must appear that it has some relevance to the charged offense.FN31 Once this relevance requirement is met, this evidence is admissible unless the defendant shows that the flight was due to circumstances unrelated to the charged offense.FN32 A lapse of time between commission of the offense and the defendant's flight does not always adversely affect admissibility of evidence.FN33 The fact that uncharged misconduct is committed while the defendant is fleeing does not render the evidence inadmissible.FN34 So long as the uncharged misconduct is shown to be a relevant circumstance of the defendant's flight, it may be admitted before the jury.FN35

FN30. Alba v. State, 905 S.W.2d 581, 586 (Tex.Crim.App.1995). FN31. Burks v. State, 876 S.W.2d 877, 903 (Tex.Crim.App.1994). FN32. Ibid. FN33. Ibid. FN34. Foster v. State, 779 S.W.2d 845, 859 (Tex.Crim.App.1989). FN35. See ibid.; Alba, 905 S.W.2d at 586.

The trial court granted the appellant's pretrial motion in limine requesting that the State not be permitted to present evidence of uncharged misconduct without first having a hearing outside the presence of the jury to determine its admissibility. Prior to the State's presentation of the evidence of the appellant's flight, and outside the jury's presence, defense counsel lodged his objections to the evidence. The trial court overruled defense counsel's objections and stated:

The circumstances, which occurred, [are] more probative in value than prejudicial, in my mind. Particularly, in light of the fact that at the time that the chase initially occurred, the only offense to which the police reasonably believed there was involved with the driver of that vehicle, Mr. Maxwell, was that he had run a red light.

Certainly, the facts that occurred afterwards leaves an inference of guilt, as is stated in the case laws [sic] and is admissible for those reasons. Flight is an indication of guilt, as you know.

The State then called six witnesses to testify about the appellant's flight and subsequent arrest in San Francisco. Officers Juarez and Pena testified that the appellant sped through an intersection in a gold pickup truck, drove away when they attempted to stop him for the traffic offense, led them on a chase through the downtown area in rush hour traffic, and fired at them during the chase. They further testified that the bullet fired by the appellant penetrated their windshield, came within inches of hitting Juarez, and sprayed their car with tiny glass fragments, which scratched Pena's eyes. Kerry Dalrymple of the San Francisco Emergency Communications Department testified regarding the police radio transmissions that were recorded during the chase. Officer Seidell testified that he became involved in the chase after it was already underway. During the chase, Seidell observed that the appellant “reached out with his left arm and hand and raised his middle finger and flipped us off.” Officer McDonagh testified that he set up a roadblock with his vehicle, which stopped traffic and ultimately ended the chase. Officer Haskell testified that he transported the appellant to the police station after the chase ended, that he searched the appellant when they arrived at the police station, and that the appellant was wearing a gold-chain necklace at that time.

The appellant was driving Lopes's truck when the San Francisco police attempted to stop him for a traffic violation on October 17, five days after Lopes's body was found and his truck was reported missing. The appellant was in possession of Lopes's personal belongings, including his handgun, which the appellant used to fire at police during the chase. The fact that the appellant went to such great lengths to elude capture after being stopped for a minor traffic violation was relevant to, and indicative of, his guilt with regard to Lopes's murder.

The trial court took measures to prevent the flight evidence from being cumulative. It refused to admit the audio recording of the police radio transmissions, instead admitting only a redacted, printed version. It allowed Seidell to testify about the appellant's hand gesture, but refused to allow him to testify about the facial and verbal expressions that accompanied it. It permitted McDonagh to testify “as to the very limited portion and scope of ... the extraordinary measures that were taken by the defendant and what had to be done to stop the chase.” Finally, it limited Haskell's testimony to the events that transpired after the chase ended.

The trial court did not abuse its discretion in admitting the evidence of the appellant's flight and the uncharged misconduct that he committed in the course of his flight. Point of error two is overruled.

VI. LESSER-INCLUDED OFFENSES
The appellant asserts in his third point of error that the trial court erroneously refused to instruct the jury on the lesser-included offenses of robbery, theft, unauthorized use of a motor vehicle, and unlawfully carrying a weapon. He argues that the trial court's refusal to instruct the jury on these lesser-included offenses violated his rights under the Sixth and Fourteenth Amendments to the United States Constitution and Article I, § 10 of the Texas Constitution.

We use a two-prong test to determine whether a defendant is entitled to an instruction on a lesser-included offense.FN36 The first step in our analysis is to determine if the lesser offense is included within the proof necessary to establish the offense charged .FN37 The second step requires an evaluation of the evidence to determine whether there is some evidence that would permit a jury to rationally find that the defendant is guilty only of the lesser offense.FN38 In other words, there must be some evidence from which a jury could rationally acquit the defendant of the greater offense while convicting him of the lesser-included offense.FN39 The evidence must establish the lesser-included offense as a valid rational alternative to the charged offense.FN40

FN36. Rousseau v. State, 855 S.W.2d 666, 673 (Tex.Crim.App.1993). FN37. Ibid. FN38. Moore v. State, 969 S.W.2d 4, 8 (Tex.Crim.App.1998); Rousseau, 855 S.W.2d at 672. FN39. Moore, 969 S.W.2d at 8. FN40. Wesbrook v. State, 29 S.W.3d 103, 113-14 (Tex.Crim.App.2000).

In order to convict the appellant of capital murder, the charge required the jury to find beyond a reasonable doubt that the appellant intentionally committed murder in the course of committing or attempting to commit robbery or kidnapping. Robbery is contained within the proof necessary for murder in the course of robbery. Theft is included within the proof necessary to establish robbery. However, unauthorized use of a motor vehicle and unlawfully carrying a weapon are not included within the proof necessary to establish the offense charged under the circumstances in the instant case. FN41 Therefore, unauthorized use of a motor vehicle and unlawfully carrying a weapon are not lesser-included offenses of the capital murder charged in this case.

FN41. Art. 37.09; Jacob v. State, 892 S.W.2d 905, 906 (Tex.Crim.App.1995) (stating that the determination of whether an offense is a lesser-included offense must be done on a case-by-case basis).

The appellant argues that the jury could have believed that McFarland was responsible for the robbery, kidnapping, and murder, and that the appellant “came into the situation” at a time when he would be guilty only of unauthorized use of a motor vehicle and theft. He also argues that the jury could have believed that McFarland was the one who committed the murder and all of the underlying crimes and that the only thing that the appellant was guilty of was being with her. The evidence shows otherwise. A witness testified that he saw a man and a woman in Lopes's truck parked near the spot where Lopes's body was later found. Another witness testified that she heard a gunshot shortly thereafter. The appellant and McFarland were apprehended six days later, after leading officers on a chase through downtown San Francisco. The appellant was driving Lopes's truck, which contained Lopes's gun and personal belongings and the gun that killed Lopes. Finally, while in the county jail awaiting trial, the appellant admitted his direct involvement in Lopes's murder and described the circumstances of Lopes's death. The jury could not have rationally acquitted the appellant of capital murder while convicting him of any of the lesser-included offenses.FN42 The appellant has failed to satisfy the second prong of the test; thus, the trial court did not err in refusing his request that the jury be instructed on the lesser-included offenses of robbery and theft. Point of error three is overruled. FN42. Moore, 969 S.W.2d at 8.

VII. JURY MISCONDUCT
In his fourth point of error, the appellant contends that the trial court erred in denying his motion for a mistrial “based upon juror misconduct in receiving outside influences.” FN43 He also argues that he was denied the right to full inquiry because the trial court refused to let him question all of the jurors about outside influences.FN44 FN43. See Art. 36.22. FN44. See Tex.R. Evid. 606(b).

The record reflects that during the punishment phase Juror Morgan Miles called her brother, Robert Lee, an attorney in Dallas, to ask him “what a 403 was.” Miles testified that Lee was appalled that she would ask him such a question and informed her that if she had any questions she should present them in writing to the judge. They did not discuss the facts of the case, and their conversation lasted less than a minute. Lee called back “like five seconds later” and told Miles that she should not have called him and that she could have caused a mistrial. Miles testified that Tom Cox, the jury foreman, was present in the jury room when she called Lee. Juror Geoffrey Maitland came into the jury room later, but Miles did not think he was present when she was talking to Lee.

Cox testified that Miles first called her brother and left a message on his answering machine asking him what 403 meant. Miles also asked Cox what 403 meant, and he stated “that's where they talk about probative value.” Cox asked Miles what kind of law her brother practiced, and she said that he was a corporate attorney. Miles made a second phone call and spoke to her brother. She told him that she was serving on a jury and asked him what 403 meant. The phone call was brief and Miles seemed surprised by her brother's reaction. When Miles got off the phone, she told Cox that her brother said that if she had questions, she should to address them in writing to the trial judge. Cox testified that no other jurors were present when Miles was talking to her brother.

Maitland testified that when he entered the jury room Miles and Cox were present and Miles was not on the phone. Someone called Miles on her cell phone a few minutes later and Maitland heard Miles say, “Okay, I won't call you again.” After Miles got off the phone, she mentioned that she called her brother to ask what 403 meant, and that he became irate and told her that she should address the judge if she had any questions. Maitland testified that a few other jurors may have been present later when Miles repeated “that she had called her brother and he got really irate with her.” Maitland stated, “I recall that there may have been, you know, two or three additional jurors. Specifically, who they were, I do not know.”

Robert Lee, Miles's brother, testified via telephonic conference call regarding the details of his conversation with Miles: This morning-approximately, 8:30 this morning-I received a phone call from my sister, Morgan Miles. In that phone call, she informed me, for the first time, that she was on a capital murder case, and she said that they were in the punishment phase. I just kind of said, “Wow, that's amazing.”

And she said, “Well, I just-we had a question about one of the rules or one of the issues,” and I don't remember exactly, but it was along of lines of she had a question concerning how something was to be interpreted. And as soon as she started to ask, I immediately said, “Hold on. Hold on. Hold on.” I said, “Did anyone instruct you that you're not suppose[d] to be getting any information outside the courtroom?” And she goes, “Well, no, I don't remember that.”

I said, “Well, if I were to provide you any information or you were to get any information and impart that to your fellow jurors, you would have a nullification of the trial and it would be like a mistrial. And it would be completely improper for me to say anything.” And she said, “Well, I just wanted to know.” I said, “I don't care. I cannot say anything, whatsoever.” At that point, she said, “Okay,” and we hung up. I immediately, maybe two minutes later, called back, onto her cell phone, and told her, “You need to bring whatever issues you have to the judge's attention.” And she said, “Okay. I won't call you again,” and then hung up. That was pretty much the extent of that conversation.

* * *

Well, when I got back into the office-when I got to the office, I was-like I said, I was in my parking garage practically-I had a message on my recorder and it obviously had been made before the phone call I received. And on that message was, “We-I just wanted to know,” I don't remember “we” or “I,” but “just wanted to know whether, you know, what is meant by,” I think she said, “Rule 403.” And she was saying something about the difference between prejudicial evidence versus nonprejudicial.

And I heard, in the background, someone prompting her on the rule number. It sounded like a male voice of some kind, prompting her. Which, initially, led me to believe that, possibly, they could be in the jury deliberation room of some kind, and that she was-and that maybe the original phone call and that phone call were made on her cell phone in some type of jury deliberation room of some kind.

* * *

And I never called back after that point. That's when I discussed it with a couple other attorneys here and then called the court.

After hearing the testimony of Miles, Cox, Maitland, and Lee, the trial court denied the appellant's motion for a mistrial. The trial court also refused to allow defense counsel to question the remaining jurors. The trial court did, however, comply with defense counsel's request to admonish the jurors again not to discuss the case with other people and not to watch or read any media reports about the case.

Article 36.22 provides, “No person shall be permitted to be with a jury while it is deliberating. No person shall be permitted to converse with a juror about the case on trial except in the presence and by the permission of the trial court.” The appellant has the burden of proving an allegation of juror misconduct.FN45 When a juror converses with an unauthorized person about the case, injury is presumed.FN46 However, the State may rebut this presumption of harm by showing that the case was not discussed or that nothing prejudicial to the accused was said.FN47 We defer to the trial court's resolution of historical facts and its determinations concerning credibility and demeanor, and we view the evidence in the light most favorable to the trial court's ruling.FN48 Where there is conflicting evidence there is no abuse of discretion if the motion is overruled.FN49

FN45. Hughes v. State, 24 S.W.3d 833, 842 (Tex.Crim.App.2000). FN46. Alba, 905 S.W.2d at 587. FN47. Ibid. FN48. Quinn v. State, 958 S.W.2d 395, 401-402 (Tex.Crim.App. 1997). FN49. Hughes, 24 S.W.3d at 842.

Miles admitted that she conversed with Lee during the punishment phase of the trial. Miles briefly asked Lee what “403” meant, and they did not discuss the facts of the case. Lee refused to answer Miles's question, reprimanded her for calling him, and told her to direct her questions in writing to the judge. He quickly terminated the conversation and informed the trial court of the situation. Cox and Maitland were aware that Miles conversed with Lee. Miles, however, only related to them that Lee became angry, refused to answer her question, and told her to address her question to the judge. Miles, Cox, and Maitland all testified that they would follow the instruction to base their decision solely on the evidence presented in the courtroom and to follow the law given to them by the trial court. At the close of the hearing, the trial court stated that the communication between Miles and Lee was improper, but concluded that there was no harm because there was no indication that the jury was tainted by the improper communication. The evidence, viewed in the light most favorable to the trial court's ruling, supports the trial court's decision to deny the appellant's motion for a mistrial.

There was conflicting evidence as to whether any other jurors were aware of Miles's conversation with Lee. Miles testified that Cox was present during the entire conversation and that Maitland entered the jury room later. Cox testified that he was the only person present when Miles was talking to Lee. Maitland testified that a few other jurors might have heard Miles say that she had called her brother and he became angry with her. We defer to the trial court and discern no abuse of discretion in the trial court's decision not to allow the appellant to question the rest of the jury on this issue.FN50 Point of error four is overruled. FN50. Ibid.

VII. UNCHARGED MISCONDUCT
In his sixth point of error, the appellant challenges the admission of evidence that he and McFarland robbed and murdered a man named Robert Bott in Indiana about a month prior to the instant offense. He argues that the trial court abused its discretion by admitting evidence of this uncharged misconduct during the punishment phase of his trial.

Article 37.071, Section 2(a) gives the trial court wide latitude in admitting or excluding evidence of extraneous offenses at the punishment stage of a capital trial.FN51 The trial court has the discretion to admit any evidence relevant to the jury's determination of a capital defendant's deathworthiness.FN52 The trial court's ruling will be upheld as long as it was within the zone of reasonable disagreement.FN53

FN51. Id., at 843. FN52. Ibid. FN53. Ibid.

When offering uncharged misconduct during the punishment phase of a capital trial, the State need not prove all of the elements of an uncharged offense. FN54 However, the State must clearly prove that the uncharged offense was committed and that the defendant was the perpetrator of the offense.FN55

FN54. Powell v. State, 898 S.W.2d 821, 830 (Tex.Crim.App.1994). FN55. Chamberlain v. State, 998 S.W.2d 230, 235 (Tex.Crim.App.1999).

The State introduced evidence that Bott's body was found in Marion County, Indiana, on September 12, 2000. His badly charred body was inside the trunk of his Mercury Cougar automobile, which had been set on fire. He had suffered a fatal gunshot wound to his chest, and his hands and feet had been bound together behind his back. The medical examiner did not recover a bullet from Bott's body during the autopsy.

When police arrived at Bott's residence in Mooresville, Indiana, they discovered that the back door was open and the house was in disarray. The appellant's fingerprints matched the fingerprints on a vodka bottle and a wine bottle in the kitchen. McFarland's fingerprints matched the fingerprints on the refrigerator door, a videotape, and a pizza box. A pizza delivery slip found in Bott's bedroom contained the appellant's name and the address of a house in nearby Indianapolis where the appellant had been staying with McFarland.

Police searched the house in Indianapolis and found several items belonging to Bott, including his wallet, various forms of identification, credit cards, and bank statements. The appellant's fingerprints matched the fingerprints on a sales receipt in Bott's wallet. Substances that appeared to be blood and vomit trailed from the basement to the outside of the Indianapolis residence. The basement smelled strongly of chemicals and contained some empty gallon jugs of muriatic acid. A spent cartridge casing was recovered from an overturned wooden wardrobe cabinet in the basement. A spent bullet was recovered from a sweater inside the wardrobe cabinet. A firearms examiner testified that the gun that fired the spent bullet and spent cartridge casing was the same gun that was used to kill Lopes in this case.

The appellant, Bott, and a female were seen shopping at two retail stores in the Indianapolis area at 11:30 p.m. on September 10 and at 5:00 a.m. on September 11. Bott used his credit card to purchase approximately $2500 of merchandise at the first store. When the night manager commented that they were buying an unusually large amount of merchandise at that time of night, the appellant explained that he and the female were getting married and that Bott was his uncle and was buying them the merchandise as a wedding gift. Bott made a credit card purchase of approximately $1100 at the second store, where the threesome were recorded on the store's security surveillance camera. At approximately 6:00 a.m. on September 11, a man was recorded on videotape making withdrawals with Bott's ATM card at a nearby Bank One ATM terminal. He made two withdrawals, and his attempt to withdraw more money was declined because it exceeded the daily limit.

When police searched Lopes's truck after the appellant and McFarland were captured in California, they found a map with a route drawn from Indiana to Florida to Texas to California. Police also found a videotape that depicted the appellant admitting his involvement in a murder. The appellant explained on the videotape that he forced a man to take him on a shopping spree, stole items from his house, killed him, put him in his car, and burned him.

The evidence that the appellant killed Bott was relevant to, and probative of, the issue of future dangerousness. The State provided clear proof that an offense was committed and that the appellant was the perpetrator. The trial court's decision to admit this evidence was within the zone of reasonable disagreement.

The appellant also alleges in his sixth point of error that the evidence is insufficient to support the jury's affirmative answer to the future dangerousness special issue. In addition to the evidence that the appellant robbed and murdered Bott, the State presented, during the punishment phase, evidence that the appellant had a lengthy criminal history, including numerous adjudications and convictions both as a juvenile and as an adult. The State also presented evidence that the appellant wrote graffiti in his cell, verbally threatened guards, and physically assaulted a deputy while he was incarcerated in the county jail awaiting trial for this offense. The facts of this case and the circumstances of the appellant's flight also support the jury's answer to the future dangerousness question.FN56 The evidence, viewed in the light most favorable to the verdict, is sufficient to support the jury's affirmative answer to the future dangerousness special issue.FN57 Any rational trier of fact could have found beyond a reasonable doubt that there is a probability that the appellant would commit criminal acts of violence constituting a continuing threat to society.FN58 Point of error six is overruled.

FN56. See Sonnier v. State, 913 S.W.2d 511, 516-17 (Tex.Crim.App.1995) (holding that the facts of the offense alone may be sufficient to support an affirmative answer to the future dangerousness question). FN57. Jackson, 443 U.S. at 319 (1979). FN58. Ibid.

We affirm the judgment of the trial court.

HERVEY, J., did not participate.

Maxwell v. Thaler, 009 WL 2981896 (5th Cir. 2009). (Habeas)

Background: Following affirmance on direct appeal of petitioner's state court conviction for capital murder and his death sentence, 2004 WL 3094649, he filed petition for writ of habeas corpus. The United States District Court for the Western District of Texas, Orlando L. Garcia, J., 2008 WL 3200672, denied petition. Petitioner sought certificate of appealability (COA).

Holdings: The Court of Appeals held that: (1) failure to submit jury instruction requiring the jury to unanimously agree upon which of the two alleged predicate felonies petitioner committed that rendered the murder a capital offense under Texas law did not violate the Sixth Amendment right to jury trial or Due Process, and (2) petitioner was not entitled to habeas relief based on alleged vague jury instruction submitted during punishment phase of trial. COA denied.

PER CURIAM:

Petitioner Joshua Maxwell (“Maxwell”), convicted of capital murder in Bexar County, Texas and sentenced to death, requests this Court to issue a Certificate of Appealability (COA) pursuant to 28 U.S.C. § 2253(c)(2). Maxwell challenges the jury instructions submitted at both the guilt-innocence and punishment phases of trial. He also contends that his counsel rendered ineffective assistance by failing to object to the allegedly unconstitutional instructions. Finding that Maxwell has not made a substantial showing of the denial of a constitutional right, we DENY a COA.

I. PROCEDURAL HISTORY

A Bexar County, Texas grand jury returned an indictment charging Maxwell with committing intentional murder while in the course of committing a robbery or kidnaping. Tex. Penal Code § 19.03(a)(2).FN1 A jury convicted Maxwell as charged, and the trial court, pursuant to the jury's answers to the special issues set forth in Code of Criminal Procedure Article 37.071, Sections 2(b) and 2(e), imposed a death sentence. The Texas Court of Criminal Appeals affirmed Maxwell's conviction in an unpublished opinion. Maxwell v. State, No. AP-74309, 2004 WL 3094649 (Tex.Crim.App. Nov. 17, 2004). Maxwell applied for state habeas relief, and the trial court recommended denying relief. The Court of Criminal Appeals adopted the findings and conclusions of the trial court and denied the application. Ex parte Maxwell, No. WR-65268-01, 2006 WL 2848044 (Tex.Crim.App. Oct. 4, 2006). Maxwell subsequently filed a federal petition for writ of habeas corpus, which the district court denied in a memorandum opinion and order. Maxwell v. Quarterman, No. SA-06-CA-884, 2008 WL 3200672 (W.D.Tex. July 30, 2008). The district court also denied a COA. Maxwell now requests a COA from this Court.

II. STANDARD OF REVIEW

Maxwell filed his 28 U.S.C. § 2254 petition for a writ of habeas corpus after the effective date of the Antiterrorism and Effective Death Penalty Act (AEDPA). The petition, therefore, is subject to AEDPA. See Lindh v. Murphy, 521 U.S. 320, 336, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). Pursuant to the federal habeas statute, as amended by AEDPA, we defer to a state court's adjudication of a petitioner's claims on the merits unless the state court's decision was: (1) “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States”; or (2) “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d). A state court's decision is deemed contrary to clearly established federal law if it reaches a legal conclusion in direct conflict with a prior decision of the Supreme Court or if it reaches a different conclusion than the Supreme Court based on materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 404-08, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). A state court's decision constitutes an unreasonable application of clearly established federal law if it is “objectively unreasonable.” Id. at 409, 120 S.Ct. 1495. Further, pursuant to section 2254(e)(1), state court findings of fact are presumed to be correct, and the petitioner has the burden of rebutting the presumption of correctness by clear and convincing evidence. See Valdez v. Cockrell, 274 F.3d 941, 947 (5th Cir.2001).

Additionally, under AEDPA, a petitioner must obtain a COA before he can appeal the district court's denial of habeas relief. See 28 U.S.C. § 2253(c); see also Miller-El v. Cockrell, 537 U.S. 322, 335-36, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (“[U]ntil a COA has been issued federal courts of appeals lack jurisdiction to rule on the merits of appeals from habeas petitioners.”). As the Supreme Court has explained:

The COA determination under § 2253(c) requires an overview of the claims in the habeas petition and a general assessment of their merits. We look to the District Court's application of AEDPA to petitioner's constitutional claims and ask whether that resolution was debatable among jurists of reason. This threshold inquiry does not require full consideration of the factual or legal bases adduced in support of the claims. In fact, the statute forbids it. Miller-El, 537 U.S. at 336, 123 S.Ct. 1029.

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). “A petitioner satisfies this standard by demonstrating that jurists of reason could disagree with the district court's resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.” Miller-El, 537 U.S. at 327, 123 S.Ct. 1029 (citation omitted). “The question is the debatability of the underlying constitutional claim, not the resolution of that debate.” Id. at 342, 123 S.Ct. 1029. “Indeed, a claim can be debatable even though every jurist of reason might agree, after the COA has been granted and the case has received full consideration, that petitioner will not prevail.” Id. at 338, 123 S.Ct. 1029. Moreover, “[b]ecause the present case involves the death penalty, any doubts as to whether a COA should issue must be resolved in [petitioner's] favor.” Hernandez v. Johnson, 213 F.3d 243, 248 (5th Cir.2000) (citation omitted).

III. ANALYSIS
A. Jury Instructions
1. Guilt-Innocence Phase of Trial

Maxwell contends that his Sixth Amendment and Due Process rights were violated when the trial court failed to submit a charge that required the jury to unanimously agree upon which of the two alleged predicate felonies he committed rendered the murder a capital offense. More specifically, the instructions did not require the jury to come to a unanimous conclusion with respect to whether the victim was murdered during the course of a robbery or a kidnaping.

Maxwell's claim is controlled by the Supreme Court's plurality opinion in Schad v. Arizona, and this Court's subsequent precedent interpreting Schad. 501 U.S. 624, 111 S.Ct. 2491, 115 L.Ed.2d 555 (1991) (plurality); Reed v. Quarterman, 504 F.3d 465, 479 (5th Cir.2007). In Schad, the jury was charged with the alternative theories of premeditated murder or felony murder. 501 U.S. at 630, 111 S.Ct. 2491. The petitioner contended that the instructions' failure to require the jury to unanimously agree with respect to whether he murdered the victim with premeditation or in the course of a robbery violated his constitutional rights. Id. The Supreme Court explained that the relevant inquiry was not one of jury unanimity inasmuch as the jury had unanimously determined that the State had proved what it was required to prove pursuant to state law. Id. at 630-31, 111 S.Ct. 2491. Instead, the “petitioner's real challenge [was] to Arizona's characterization of first degree murder as a single crime as to which a verdict need not be limited to any one statutory alternative.” Id. Thus, the relevant inquiry was whether Arizona's definition of capital murder ran afoul of the Constitution. Id. at 631, 111 S.Ct. 2491.

In making this determination, the Supreme Court first looked to whether the legislature intended to create separate offenses or different means of committing one offense. Id. at 636-37, 111 S.Ct. 2491. The Court explained that if the state court had interpreted the statute and determined that the alternatives are means of committing a single offense, federal courts “are not at liberty to ignore that determination and conclude that the alternatives are, in fact, independent elements under state law.” Id. at 636, 111 S.Ct. 2491. Previously, the Arizona Supreme Court had determined that premeditation and felony murder were not separate elements but instead were means of “satisfying a single mens rea element.” Id. at 637, 111 S.Ct. 2491.

Secondly, the Supreme Court addressed whether Arizona's definition of the crime as one offense violated due process. The plurality opinion expressly refused to formulate a “single test for the level of definitional and verdict specificity permitted by the Constitution.” Id. at 637, 111 S.Ct. 2491. Instead, the plurality opined that “our sense of appropriate specificity is a distillate of the concept of due process with its demands for fundamental fairness, [citation omitted], and for the rationality that is an essential component of that fairness.” Id. at 637, 111 S.Ct. 2491. The plurality explained that it would “look both to history and wide practice as guides to fundamental values, as well as to narrower analytical methods of testing” to determine whether the alternative mental states may permissibly “satisfy the mens rea element of a single offense.” Id. at 637, 111 S.Ct. 2491. After analyzing various state courts' precedent, the opinion found considerable historical evidence supporting Arizona's use of alternative mental states as means to satisfy the mens rea element of a single offense. The opinion further found that it could reasonably be concluded that the two mental states were moral equivalents. Id. at 644, 111 S.Ct. 2491. Ultimately, the opinion concluded that the jury instructions did not violate due process. Id. at 645, 111 S.Ct. 2491.

Subsequently, this Court, in Reed v. Quarterman, applied the analysis in Schad to a case that is essentially on point with the case at bar. 504 F.3d 465, 479 (5th Cir.2007). In Reed, the petitioner sought a COA based on his claim that “allowing the jury to convict him under two alternative theories without requiring unanimity as to one” violated due process. 504 F.3d at 479-82. In that case, the jury had been instructed that it could convict Reed of capital murder if it found that he committed murder in the course of robbery or attempted robbery or in the course of attempted aggravated rape. Id. Reed argued that Schad did not apply because his jury charge actually described two separate offenses as opposed to two different means of committing the single offense of murder. Id. at 480. Applying Schad, this Court recognized that “numerous states have traditionally defined and continue to define first-degree or aggravated murder as including both a killing in the course of robbery and a killing in the course of rape or attempted rape.” Id. at 482. Indeed, the Arizona statute at issue in Schad did so. Id. We further concluded that courts “could reasonably find a moral equivalence between murder in the course of robbery and murder in the course of attempted rape.” Id. Thus, we denied a COA, holding that reasonable jurists would not debate that the state court “reasonably applied Schad when it rejected Reed's challenge to his jury instructions.” Id. In view of this Court's precedent applying the plurality's reasoning, Maxwell is precluded from demonstrating that whether Schad applies is debatable among jurists of reason.

Maxwell acknowledges the holding in Schad but asserts that Justice Scalia's concurrence, which was narrowly based on historical grounds, effectively limited Schad either to its facts or to cases in which the jury is charged with the alternative mental states of premeditation and felony murder. This assertion is precluded by our above-discussed holding in Reed. Maxwell also contends that this Court should not rely on Reed or any other circuit case because the Supreme Court's precedent controls federal habeas claims. Maxwell is correct that “[u]nder AEDPA, the state courts are bound, not by our jurisprudence or the jurisprudence of our sister circuits, but by ‘clearly established Federal law, as determined by the Supreme Court of the United States.’ ” Summers v. Dretke, 431 F.3d 861, 875 (5th Cir.2005) (quoting 28 U.S.C. § 2254(d)(1)). Nonetheless, one panel of this Court is bound by a previous panel's interpretation of Supreme Court precedent. See United States v. Short, 181 F.3d 620, 624 (5th Cir.1999) (explaining that one panel may not overrule the decision of a previous panel absent an intervening Supreme Court opinion explicitly or implicitly overruling our prior panel precedent). Maxwell likewise faults the district court for citing Fifth Circuit precedent; however, the district court, like the instant panel, is bound by our Court's caselaw interpreting Supreme Court precedent.

Maxwell also asserts that the state court's ruling is not entitled to deference under AEDPA because it was not an adjudication on the merits. Maxwell does not, however, explain his basis for arguing that the state court's adjudication was not on the merits. In any event, an “ ‘adjudication on the merits' occurs when the state court resolves the case on substantive grounds, rather than procedural grounds.” Valdez v. Cockrell, 274 F.3d 941, 946-47 (5th Cir.2001). During the instant state habeas proceedings, the state trial court, after a hearing, recommended denying relief on the merits, citing inter alia, Kitchens v. State, 823 S.W.2d 256 (Tex.Crim.App.1991). The Court of Criminal Appeals denied relief based on its review of the record and the findings of the trial court. Ex parte Maxwell, No. 65268, 2006 WL 2848044 (Oct. 4, 2006). The denial was on substantive grounds, which constitutes an adjudication on the merits. Thus, the state court's decision is entitled to deference under AEDPA.

As set forth above, the state court denied relief on this claim relying upon its holding in Kitchens, 823 S.W.2d 256. Maxwell contends that the Court of Criminal Appeals's holding in Kitchens-that the predicate offenses that elevate murder to capital murder under Tex. Penal Code Ann. § 19.03 are not elements of capital murder but instead are alternate methods or means to commit capital murder-is wrongly decided. We need not tarry long here. “If a State's courts have determined that certain statutory alternatives are mere means of committing a single offense, rather than independent elements of the crime, we simply are not at liberty to ignore that determination and conclude that the alternatives are, in fact, independent elements under state law.” Schad, 501 U.S. at 636, 111 S.Ct. 2491; see also Weeks v. Scott, 55 F.3d 1059, 1063 (5th Cir.1995) (explaining that in a federal habeas proceeding, this Court will not review a state court's interpretation of the state's own statute).

Maxwell also argues that the Court of Criminal Appeals's decision in Rodriguez v. State, 146 S.W.3d 674 (Tex.Crim.App.2004), overruled Kitchens. In Rodriguez, the question was whether Texas had territorial jurisdiction over the capital murder offense even though only the kidnapping but not the actual murder occurred in Texas. The Court of Criminal Appeals explained that “capital murder is a result of conduct offense which also includes nature of circumstances and/or nature of conduct elements depending upon the underlying conduct which elevates the intentional murder to capital murder.” Rodriguez, 146 S.W.3d at 677. The Court further explained that the offense of “kidnapping was the required aggravating ‘nature of conduct’ element that elevated the offense from murder to capital murder.” Id. Accordingly, because the kidnapping occurred in Texas, Texas had territorial jurisdiction over the capital murder offense. Id. In an unpublished opinion, we have previously rejected the contention that Rodriguez overruled Kitchens, noting (1) that the Court of Criminal Appeals “did not state that it was in any way modifying or overruling Kitchens ” and (2) that the Court of Criminal Appeals was merely recognizing that the state must prove a defendant engaged in other specified criminal conduct to elevate the killing to a capital murder offense. See Manns v. Quarterman, 236 Fed.Appx. 908, 915 n. 6 (5th Cir.2007). Moreover, Maxwell has not cited a case addressing the issue at bar in which the Court of Criminal Appeals has applied Rodriguez's language to the instant jury instruction challenge. Indeed, subsequent to Rodriguez, the Court of Criminal Appeals continues to rely on Kitchens for the proposition that the predicate offenses under § 19.03 are alternate methods or means to commit capital murder. See, e.g., Luna v. State, 268 S.W.3d 594, 601 & n. 16 (Tex.Crim.App.2008) (citing Kitchens, 823 S.W.2d at 258). Thus, we reject Maxwell's contention that Kitchens has been overruled.

In addition to contending that Texas state precedent has been overruled, Maxwell argues that the Supreme Court's plurality in Schad has been overruled sub silentio by Richardson v. United States, 526 U.S. 813, 119 S.Ct. 1707, 143 L.Ed.2d 985 (1999). In Richardson, the Supreme Court held that a district court must instruct a jury to reach a unanimous verdict as to each of the specified violations that comprise the alleged “continuing series of violations” for the purposes of the continuing criminal enterprise statute. 526 U.S. at 824, 119 S.Ct. 1707. In Richardson, the Supreme Court cited Schad several times and relied upon the teachings of the plurality opinion in its analysis. Richardson, 526 U.S. at 817, 819, 820, 822, 119 S.Ct. 1707 (citing Schad, 501 U.S. at 631-33, 645, 111 S.Ct. 2491). Although the Supreme Court ultimately held that jury unanimity was required with respect to the violations pursuant to the continuing criminal enterprise statute, Richardson is distinguishable from Schad. As previously set forth, in Schad the plurality found considerable historical evidence supporting Arizona's use of alternative mental states as means to satisfy the mens rea element of a single offense. In stark contrast, in Richardson, the government “virtually concede[d] the absence of any such tradition when it [admitted] that the statute departed significantly from common-law models and prior drug laws, creating a new crime keyed to the concept of a ‘continuing criminal enterprise.’ ” 526 U.S. at 821, 119 S.Ct. 1707 (citation and internal quotations marks omitted). Thus, in light of the very different history surrounding the two statutes at issue in Schad and Richardson, we are not persuaded that reasonable jurists would find it debatable that Richardson overruled Schad.

Nonetheless, Maxwell cites the following language from a Texas Court of Criminal Appeals opinion: “[T]he plurality opinion in Schad has been undercut by the reasoning and result in the Supreme Court's later decision in Richardson.” Ngo v. State, 175 S.W.3d 738, 746 (Tex.Crim.App.2005). We first note that we are not bound by a state court's holding with respect to the analysis of a federal due process claim. Thompson v. Cockrell, 263 F.3d 423, 429 (5th Cir.2001). In any event, Maxwell is not entitled to relief because neither Schad nor our subsequent precedent interpreting it has been overruled implicitly or explicitly. Accordingly, we are bound by Schad and Reed, which compel our holding that reasonable jurists would not debate that the state court reasonably applied Schad and rejected this claim.

Finally, Maxwell contends that the following relatively recent precedent of the Supreme Court reflects a shift toward (1) limiting the states' legislative discretion and (2) allowing greater federal court oversight with respect to statutory definitions. Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002); Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000); Richardson, 526 U.S. 813, 119 S.Ct. 1707; Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999). Once again, because this Court in 2007-subsequent to the above-cited Supreme Court cases-applied Schad to an almost identical case, we are bound to deny a COA. Reed, 504 F.3d at 479-82; accord Manns, 236 Fed.Appx. at 913-16 (denying relief on the claim at issue after previously discussing Ring in the context of a challenge to the jury instructions submitted at the punishment phase). We therefore are constrained to DENY a COA with respect to Maxwell's challenge to the jury instructions at the guilt-innocence phase of trial.

2. Punishment Phase of Trial
Maxwell also challenges the instructions submitted to the jury at the punishment phase of trial. The first special issue submitted to the jury provided as follows: “Is there a probability that the defendant, Joshua Maxwell, would commit criminal acts of violence that would constitute a continuing threat to society?” Maxwell contends that the state trial court's failure to define the terms “probability,” “criminal acts of violence,” and “continuing threat to society” rendered the instructions unconstitutionally vague, thereby depriving him of a fair trial. This Court has held that there is no “clearly established federal law under which the terms of the Texas sentencing instructions could be unconstitutionally vague,” and therefore denied a COA with respect to an identical claim to the above-quoted terms. Turner v. Quarterman, 481 F.3d 292, 299-300 (5th Cir.), cert. denied, 551 U.S. 1193, 128 S.Ct. 34, 168 L.Ed.2d 810 (2007); accord Leal v. Dretke, 428 F.3d 543, 553 (5th Cir.2005); Hughes v. Johnson, 191 F.3d 607, 615 (5th Cir.1999). Maxwell also argues that the special issues failed to channel the jury's discretion. Because “Texas performs the constitutionally required narrowing function before the punishment phase, [Maxwell's] attack on the words used during punishment is unavailing.” Paredes v. Quarterman, 574 F.3d 281, 294 (5th Cir.2009) (footnotes omitted). Our precedent precludes Maxwell from making a substantial showing of the denial of a federal constitutional right. We deny a COA on this claim.

The second special issue submitted to the jury provided that: “Taking into consideration all the evidence, including the circumstances of the offense, the defendant's character and background, and the personal moral culpability of the defendant, is there a sufficient mitigating circumstance or circumstances to warrant that a sentence of life imprisonment rather than a death sentence be imposed?” Maxwell argues that the second special issue is constitutionally defective because it did not require the State to prove the aggravating elements beyond a reasonable doubt. In Rowell v. Dretke, we rejected this precise claim. Rowell v. Dretke, 398 F.3d 370, 378 (5th Cir.2005) (opining that “[n]o Supreme Court or Circuit precedent constitutionally requires that Texas's mitigation special issue be assigned a burden of proof”). We are bound by our precedent and therefore must conclude that Maxwell has not made a substantial showing with respect to the denial of his right to a jury finding of beyond a reasonable doubt. Scheanette v. Quarterman, 482 F.3d 815, 828-29 (5th Cir.2007) (ruling that reasonable jurists would not debate the district court's rejection of petitioner's claim that the jury was required to find the mitigating issue beyond a reasonable doubt). We DENY a COA with respect to this claim.

B. Ineffective Assistance of Counsel
Maxwell further argues that counsel's failure to object to the instructions at both phases of trial based on the above arguments constitutes ineffective assistance of counsel. To establish ineffective assistance of counsel, Maxwell must show (1) defense counsel's performance was deficient and (2) this deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). While “[j]udicial scrutiny of counsel's performance must be highly deferential,” Maxwell can demonstrate deficient performance if he shows “that counsel's representation fell below an objective standard of reasonableness.” Id. at 688-89, 104 S.Ct. 2052. However, “[t]here is a ‘strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.’ ” United States v. Webster, 392 F.3d 787, 793 (5th Cir.2004) (quoting Strickland, 466 U.S. at 689, 104 S.Ct. 2052). Strickland's “prejudice” prong requires a reasonable probability that, but for the deficient performance of his trial counsel, the outcome of his capital murder trial would have been different. 466 U.S. at 694, 104 S.Ct. 2052.

With respect to the first prong, Maxwell has not shown that counsel's performance was deficient. As discussed above, the jury instructions at both phases of trial were not constitutionally infirm and therefore any objection would have been without merit. The failure to make meritless objections does not constitute deficient performance. See Clark v. Collins, 19 F.3d 959, 966 (5th Cir.1994). Thus, we need not reach the prejudice prong of Strickland. Maxwell has not shown that reasonable jurists would find debatable this claim of ineffective assistance.FN2

C. CONCLUSION

We DENY a COA with respect to Maxwell's challenges to the jury instructions and his claims of ineffective assistance of counsel.

FN* 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. FN1. Because resolving the claims presented in this COA does not require knowledge of the facts underlying the offense of capital murder, we do not recite them here.