Wednesday, November 11, 2009
Media Advisory: Danielle Simpson scheduled for execution

AUSTIN – Texas Attorney General Greg Abbott offers the following information about Danielle Simpson, who is scheduled to be executed after 6 p.m. on Wednesday, November 18, 2009. In December 2000, Simpson was sentenced to die for the capital murder of Geraldine Davidson, a widow and retired teacher.

FACTS OF THE CRIME

Danielle Simpson and two accomplices broke into the Anderson County home of eighty-four-year-old Geraldine Davidson to burglarize the residence. When Mrs. Davidson returned home a short time later, Simpson taped her mouth and bound her hands and feet with duct tape. Simpson then put a pillow case over her head and put her in the trunk of her own car. Simpson and his accomplices then drove to several different locations before heading to the Neches River, where they dumped Mrs. Davidson in the river.

On at least two previous occasions, Simpson had burglarized Mrs. Davidson’s house.

PUNISHMENT-RELATED EVIDENCE

During the sentencing phase of Simpson’s trial, the State introduced evidence that after Mrs. Davidson had been placed in the trunk of the car, Simpson appeared happy. As the group drove away from Mrs. Davidson’s house, Simpson said that white people deserved to die. Evidence was introduced that Simpson had been placed on ten-years’ deferred adjudication in 1999 for indecency with a child. Witnesses said he was a member of a Palestine street gang, which was linked to drug trafficking, assaults, robberies, and shootings. He also was implicated in several burglaries. Testimony linked Simpson to assaults on his wife, Jennifer, and on another female. The jurors heard of another incident in which Simpson smashed the windows of his sister’s car.

PROCEDURAL HISTORY

Feb. 17, 2000 – An Anderson County grand jury indicted Simpson for capital murder.
Dec. 5, 2000 – After a trial in the Third District Court of Anderson County, the jury found Simpson guilty of capital murder.
Dec. 8, 2000 – After a punishment hearing, the court sentenced Simpson to death.
Dec. 3, 2002 – Simpson filed an application for state habeas corpus relief.
Oct. 1, 2003 – On appeal, the Texas Court of Criminal Appeals affirmed the conviction and the sentence.
June 14, 2004 – The U.S. Supreme Court denied certiorari review.
June 30, 2004 – The Texas Court of Criminal Appeals denied his application for state habeas corpus relief.
June 28, 2005 – In the U.S. District Court for the Eastern District of Texas, Simpson filed a petition for federal habeas corpus.
March 29, 2007 – The U.S. District Court for the Eastern District of Texas denied federal habeas corpus relief.
April 4, 2007 – Simpson filed notice of appeal.
June 7, 2007 – The U.S. District Court for the Eastern District of Texas granted Simpson permission to appeal.
Aug. 29, 2008 – The United States Court of Appeals for the Fifth Circuit remanded the case to the federal district court to hold an evidentiary hearing on the issue of Simpson’s possible retardation.
Dec. 10, 2008 – An evidentiary hearing was held in Beaumont.
Jan. 8, 2009 – The federal district court denied Simpson’s mental-retardation claim.
Jan. 31, 2009 – Simpson filed notice of appeal.
Feb. 3, 2009 – Simpson filed a motion in the federal district court seeking permission to appeal.
2009 – Simpson wrote a letter to the United States Court of Appeals for the Fifth Circuit asking permission to waive appeals.
March 9, 2009 – Acting through counsel, Simpson moved in the federal appeals court for remand for a competency hearing.
April 10, 2009 — The Fifth Circuit court remanded the case to the federal district court for a competency hearing.
June 9, 2009 – A competency hearing was held in Beaumont.
June 12, 2009 – The district court issued order concluding that Simpson was competent to waive further habeas corpus review.
June 30, 2009 – Simpson signed an affidavit announcing his decision to alter course and continue his appeal.
July 6, 2009 – Counsel for Simpson moved in the Fifth Circuit to continue appeal and asked to withdraw as counsel.
July 15, 2009 – Simpson signed statement announcing his decision to alter course again and to waive further appeals.
July 22, 2009 – Simpson filed motion in the Fifth Circuit court again asking that his appeal be dismissed.
Aug. 12, 2009 – The Fifth Circuit court dismissed Simpson’s appeal.
Aug. 13, 2009 – The Third District Court of Anderson County scheduled the execution for November 18, 2009.
Aug. 26, 2009 – Brenda Simpson, Simpson’s mother and sisters moved to intervene as next friends to continue the appeal.
Sept. 21, 2009 – The Fifth Circuit court denied the motion to intervene.
Oct. 5, 2009 – Brenda Simpson, LaTonya Simpson, Kenya Sanders, and Kathryn Evans asked the Fifth Circuit to reconsider.

Huntsville Item Online

"Man executed for abduction-slaying of Texas woman." (Associated Press November 18, 2009 10:09 pm)

A convicted killer who volunteered for execution but in recent weeks changed his mind was put to death Wednesday evening for the abduction-slaying of an 84-year-old east Texas woman who was weighted down with a cinder block and thrown into a river. Danielle Simpson, 30, was condemned for the murder of Geraldine Davidson, a former school teacher and church organist abducted nearly 10 years ago during a burglary of her home in Palestine, about 100 miles southeast of Dallas.

“I want to tell my family I love y’all,” Simpson, 30, said in brief comments while strapped to the death chamber gurney. “I’m going to miss y’all. “I’m ready, ready.” He shook his head and raised it as the lethal drugs were administered, gasped a couple of times and then his body trembled for several seconds before he slipped into unconsciousness. He was pronounced dead at 6:32 p.m. CST, nine minutes later.

Simpson was the 22nd Texas prisoner to be executed this year.

A federal court earlier this year had said Simpson was competent to decide to drop his appeals. Then Simpson reversed himself and allowed lawyers to try to save him from lethal injection. His execution came less than an hour after the U.S. Supreme Court rejected a last-day appeal that argued he was mentally impaired and incapable of deciding whether to drop his appeals. They offered his repeated reversals as proof. His lawyers also lost an appeal that challenged the elimination of two black people from consideration to serve on Simpson’s trial jury. Simpson is black. No blacks on the jury that convicted him and decided he should be put to death.

Simpson told The Associated Press earlier this month from death row he was innocent, it wasn’t his choice to volunteer for execution and Texas prisons were “pitiful.” He earlier sent a federal court a handwritten motion in which he said he was “tired of being in a institution that’s unjust, degrading, and corrupted” and was ready to die.

A federal judge found Simpson had “a mental disease, disorder or defect” but was able to understand his legal position and competent to choose to die.

Evidence and testimony at Simpson’s trial detailed Davidson’s January 2000 death. She arrived home and interrupted a burglary involving Simpson, then 20, his wife, Jennifer, 17, and a cousin, Edward McCoy, 13. Evidence showed Simpson, who lived nearby, had broken into Davidson’s home at least two other times. Testimony showed he held a knife to Davidson’s throat and ordered her to surrender money from her purse. Davidson’s mouth was duct taped, her hands tied behind her, her legs taped and a pillow case was pulled over her head. Davidson then carried her over his shoulder outside and threw her in the trunk of her car.

Testimony showed the three drove around in her car, bought marijuana, tried to buy cocaine, then went about 10 miles out of town to visit a relative where Simpson opened the trunk and showed off their captive. When Davidson asked for her medication, Simpson told her to “Shut up!” and slammed the trunk lid. They drove back to Palestine and showed off their captive to more friends while Simpson’s wife made calls on Davidson’s cell phone.

The trio was joined by Lionel Simpson, his 15-year-old brother. With Danielle Simpson driving, they went to a dead-end road, pulled the woman out, re-taped her arms and legs, beat her and tossed her back in the trunk. They went to a fast-food place to eat, then drove to the Neches River, threw her to the ground, kicked her in the face, tied one end of a rope around her legs and the other end to a cinder block.

A medical examiner testified Davidson was alive when she was thrown in the river. A passing motorist eventually spotted the body floating in the water. Simpson contended neither he nor his brother was responsible for the slaying, which he blamed on his wife and cousin, who testified against him. “The problem with that was (Simpson) was the one who kidnapped her and threw her in the trunk,” Doug Lowe, the Anderson County district attorney who prosecuted Simpson, said. “Since then, I haven’t seen anything as brutal — nothing that would get close to what that was.”

Lionel Simpson is serving a life sentence. Jennifer Simpson pleaded guilty and is serving a 40-year term. Both were certified for trial as adults but were ineligible for the death penalty because of their age. McCoy was sent to the Texas Youth Commission and paroled in 2007 at age 21 to serve the remainder of his 13-year sentence under adult parole supervision.

Another inmate who had been scheduled to die this week — Gerald Eldridge, 45 — won a reprieve from a federal judge who agreed with attorneys that his mental competency should be further examined before he can be put to death for a double slaying in Houston 17 years ago.

And on Wednesday, The Texas Board of Pardons and Paroles, in a highly unusual vote, recommended that a convicted murderer set to die Thursday for his part in the fatal shooting of Houston convenience store clerk have his sentence commuted to life in prison. The board’s action leaves the decision on whether Robert Lee Thompson, 34, lives or dies with Gov. Rick Perry.

Houston Chronicle

"Man executed for abduction-slaying of Texas woman," by Michael Graczyk. (Associated Press Nov. 18, 2009, 7:16PM)

HUNTSVILLE, Texas — A convicted killer who volunteered for execution but in recent weeks changed his mind has been put to death in Texas.

Thirty-year-old Danielle Simpson received lethal injection Wednesday evening for the abduction-slaying of 84-year-old Geraldine Davidson. The former school teacher was abducted nearly 10 years ago during a burglary of her home in Palestine, about 100 miles southeast of Dallas.

While strapped to the death chamber gurney, Simpson said he loved his family and would miss them. Then, he said, "I'm ready, ready."

A federal court earlier this year had said Simpson was competent to decide to drop his appeals. Then Simpson reversed himself and allowed lawyers to try to save him. Simpson was the 22nd Texas prisoner executed this year.

ProDeathPenalty.Com

Danielle Simpson was charged with the offense of capital murder committed in the course of committing or attempting to commit kidnapping.

The evidence admitted during the guilt phase of the trial established that there were three parties to the victim's initial kidnapping: Simpson, Jennifer Simpson, and Simpson's thirteen-year-old cousin, Edward McCoy. All three lived with McCoy's mother and sisters in a house a couple of blocks from Geraldine Davidson's house. Geraldine was an 84-year-old woman who lived alone. She was a former Palestine school teacher and the organist at her Methodist church. Simpson had burglarized Geraldine's house on at least two previous occasions.

McCoy testified that, on the morning of the offense in January, 2000, Simpson asked him if he wanted to go with him to burglarize Geraldine's house. McCoy agreed. Simpson, Jennifer, and McCoy all walked around the corner to Geraldine's house. After knocking on the door to see if anyone was home, Simpson went into Geraldine's garage, got a hammer and pick, and broke a window. Jennifer climbed through the window and then went around and opened the door. Once inside, Jennifer took a ring and some money, and Simpson took a watch.

About fifteen minutes later Geraldine came home. When Geraldine entered the kitchen, Simpson approached her from behind and held a knife to her neck. He asked Geraldine for money which he then retrieved from her purse. Simpson directed McCoy and Jennifer to restrain Geraldine while he left to get a pillow case and duct tape. When he returned, Simpson taped Geraldine's mouth and bound her hands behind her back and told Jennifer to tape her legs. Simpson then put the pillow case over Geraldine's head, threw her over his shoulder, and carried her outside. Simpson unlocked the trunk of Geraldine's car and placed her inside. The three climbed in Geraldine's car and drove to a couple of different locations to buy drugs.

McCoy described Simpson and Jennifer as acting normally and having a good time. After purchasing marijuana and making an unsuccessful attempt to buy some crack cocaine, the three drove about ten miles from Palestine to Grapeland to visit Simpson's aunt and her daughter, Shay. McCoy testified that Simpson opened the trunk and showed Geraldine to Shay. When Geraldine asked for her medicine, Simpson told her to "shut up" and slammed the lid closed. The rest of the afternoon Simpson drove around in Geraldine's car visiting and congregating with various friends in Palestine, occasionally opening the trunk to show off his victim. Jennifer used Geraldine's cell phone throughout the day. McCoy's following testimony is similar to the above objected-to hearsay statements: "Then Lionelle got the rope and tied the rope around her legs and he got the other half of the rope and tied it around the brick and threw the brick in the water." Q. Then what happened? A. Then Lionelle got her hands and Simpson got her legs and started swinging her and chunked her in the river." Others testified that later that night, Simpson "rented" them Geraldine's car to use for a couple of hours in exchange for drugs. Also entered into evidence was a letter written by Simpson to a cousin in which Simpson claimed he "was just the watch out person and driver of the car," and accused Jennifer and McCoy of putting Geraldine in the trunk and throwing her in the river. Simpson stated in the letter that he and Lionelle remained in the car.

Geraldine Davidson's body was found in the water by a passing motorist. Simpson's co-defendants in the case included his younger brother, Lionelle Simpson; his wife, Jennifer Simpson; McCoy has completed his sentence. Lionelle Simpson was tried as an adult and is currently serving a life sentence for capital murder. Jennifer Simpson pled guilty after her August 2000 trial had started and was sentenced to life in prison. She will be eligible for parole after serving 30 years of her sentence. UPDATE: Danielle Simpson was executed after his attorneys failed in their attempts to get his execution stopped. Five members of Davidson's family, including her three adult children, witnessed the execution. Simpson said goodbye to his family and attorneys but made no comment to the victim's family. Anderson County District Attorney Doug Lowe, said, "I don't get any pleasure out of the execution of Danielle Simpson but this was a case that deserved that punishment. He was a person who showed no remorse for his victim and had many opportunities throughout the day to spare her life and didn't."

DeathRow-USA

May 2005

I am an incarcerated young man that’s 25 years of age, and imprisoned to the unjust system of Texas death row. My name is Danielle Simpson, and I’ve been confined amongst demoralized and lonely walls of this system, of a total additioning of 5 years...yet surviving and struggling against the unjustness of the courts and their systems, which are none other than a bunch of mass murderers. More so, I arrived unto this institutional system young of age, basically as a child....

However, since then, I’ve fully become fully grown and developed, as to becoming a righteously well matured man of such self-righteous and moral ambitions...therefore bestowing the man that I am that’s reared on solitary confinement and prison knowledge. The morals and values of my automatic mind has become extremely strengthening amongst the utmost indulgence of reading books, self-rehabilitation, prison knowledge, and heartfelt tears of such loneliness....Therefore I am still a child at heart, for the matters that I still indulge mentally within childish dreams of a great magnitude of the many ways that I can evaporate from the demoralizing torture and loneliness heartfelts of this death row system.

For this institution is none other than a physical adventure of misery...nevertheless it’s all within my profounded ways of rebelling these oppressive four white walls I’m living behind. However, at such moments of time (even the senses of my sanity) so it seems. Even the generalistic basics of interactions of human beings that are usually shared between the righteous of an amity. Despite being deprived....I still have the ambitions for the confraternity of amity. However, I must confirm that within all honesty I greatly miss the genuine opportunities of heartfelts as to sharing my innermost feelings with people, and , in turn, having them share them with me. More so, solitude has brought out the utmost values of passions, fidelity, security, and self-perseverance within myself.

However, I’m managing to gain the strengths to sustain myself, for I’m fighting everyday to preserve my sanity against the courts, and this mass murdering state that is anxiously awaiting to take my life...But beyond the passions, this isn’t my underlining purpose of this scribe is that, I’m seeking to befriend someone of any age, race, etc....that would become of both heartfelt and interested as to becoming penfriends...so unto whom that is interested, please do feel more than honorable to contact me at your desire...

Please respond to: Danielle Simpson #999370

“No Struggle, No Progress”

To all those that don’t know, or may not have a clue. I would like to engage a spare moment of your time and speak upon the struggle of those (including myself), that’s actively embedded in the struggle here on the Polunsky Unit Death Row. Though not only am I surrounded by the reality of a dying culture, I’m also living amongst a dying breed of others like myself that are caught up in the struggle/an warfare, of fighting to save our lives. Though we as men are indeed human beings, and to a full degree of acknowledgement, deserve the general respect of being treated as human beings. Therefore, in regards to my daily life being caged up behind the concrete walls of this injustice environment, I indeed struggle as more so, I suffer a great sum of suppressions due to the inhumane injustice of being mistreated, not only amongst the deteriorated cruel and unusual punishment…but a worse fraction of degraded oppression, that creeps through and beyond the disgrace of this evil, unjust, bloodthirsty system. As though I wish to say, this circumstance of time is more than a struggle, it’s a unjust warfare of not only life/and death, but a progress to define the overall righteousness, from the devaluation of evil. Therefore, a selected few of offenders has whole-heartedly become engaged, and are highly active in a unity protest of resistance…basically to stand in true solidarity to show the devaluated minds of the administrators/and all those that’s in favor to/and with the injustice of the death penalty, that “we” are willing to stand against the brutal/and inhumane abusiveness of mistreatment, that we engage daily. Therefore, I’ve like to utilize a example before you in due means to what I’m sharing in additions of…“No Struggle, No Progress!!”

Whereas in the beginning, it begins like a woman that’s going through the extreme painfulness of her laboring pregnancy. The physical, emotional and mental pain that’s assimilated upon a mother during her enduring moments of contractions/and labor…is indeed an extremely painful and traumatic effect. However, that same saturated pressure of painfulness/and traumatism dwells upon myself in general, as I thrive on miseries of being imprisoned on this demoralized Polunsky Unit Death Row. Though I struggle daily, trying to stay strong, positive, and focused…it’s the warfare of oppressions “alone” that causes my struggle to be so highly active/and resistant as it is. Because, not only am I living to die, I’m more or less living and seeking to be “free”…free from the cruel/and evil injustices that have prices over my head, having me so disorientated, traumatized etc. That I often feel the contractions of pain, not from the labor of giving birth, but the labor of pain as being deprived, suppressed/and repressed, treated as if I’m a wild animal that’s just been captured from the wild jungle, that’s far and beyond wanders land of my ancestors in South Africa.

And though I’m confined here on death row, I’m not just sitting here caged up in my cage 23 hours a day, just waiting to become the next dessert in the assembly line’s menu, to serve unto the blood thirsty, hunger salutation of this mass murdering injustice, that regards inhumane cruel and unusual punishment. I’m indeed standing against all odds in resistance…amongst solidarity to R.I.S.E. for my activism is more than necessary, it’s a driven purpose that’s beyond a doubt…“No Struggle, No Progress!!”

Indeed, no struggle, no progress is more than just how it sounds, or how one may conserve its point of views. It’s more or less a mobilized revolutionary protest, in which my activism of resistance, it’s well worth a struggle to not only be observed, discussed, or placed beyond considerations…this is a struggle to be engaged by “all” and progressed. Because the Texas Death Penalty is so far beyond out of control with it’s stigmatized corruptions of inhumane killings by lethal injection, that I seldom feel as if…I’m slowly being murdered daily, as the days of my life passes me by. With so much pressure in the air, I’m not only focused on my daily struggles of warfare, I’m focused and programmed on progress. And being that my daily life seems so highly indifferent/and impossible to cope with, I’d rather struggle with the odds, than suffer the 1 to 5 grams of dosage of sodium thiopental injected in my veins, causing me to slowly suffer the cruel/and inhumane punishment of becoming aberrational. Because being that I’m caged up 23 hours a day in a small solitary cell of confinement, I’m engaged in a degraded warfare battling against the evil oppressions that violates my focus, generally by the negative pressures of impure distractions that torture my mind. Which is how the sodium thiopental operates, it makes the brain unconscious by depressing the central nervous system, slowing the heart/and lowering the blood pressure. And being that a person my be aware of what’s happening, this is still a violation to the cruel/and unusual punishment of inhumane tortures, which is how I seldom feel as being engaged in this struggle of life on death row.

Needless to say, there’s been a great sum of time period that I’ve seldom felt. As if I’ve been injected with the second drug of lethal injection…which is the pancuronium bromide. And what this drug accommodates once it’s been injected in the veins of a human body, its effects is far more than cruel, it’s critically brutal…because it paralyzes one diaphragm, and ultimately adjust one breathing well beyond this point. I can legate to the cause/and effects of this crucial affection, one of many ways but to address the most important…being that I’m not only surrounded, but I’m living amongst a dying breed of individuals, other men…”human beings” as we are…we’re not only products of our own self-character we’re soldiers engaged in a life/and death warfare.

And last but not least, for the ending remains of this inhumane violation struggle of brutal punishment, I very seldom feel dysfunctional at this point in time mostly by my surroundings/and its demoralized pressures of being caged up 23 hours a day, as if I’m lost in the raging destructions of a whirlwind…But yet, I’m engaged to this struggle to progress because the potassium chloride which is the final drug utilized in the process of lethal injection. It’s a extreme burning sensation to the body, causing excessive pain, torture, and suffering as the heart fights, with every strength of its might, to “not” stop functioning and taking it’s last breath, as the potassium chloride defeats the struggle after all by stopping the heart from beating…you’re dead!! Now can somebody…anybody tell me why we die? Simple…“No Struggle, No Progress,” let’s engage as a unity and fight the struggle…

In Solidarity, D. Simpson

Athens Daily Review

"Simpson dies for teacher killing; Death Row inmate was sentenced in Athens nine years ago," by Rich Flowers. (November 19, 2009 10:10 am)

A 30-year old man, sentenced to die in Athens nine years ago, was executed Wednesday, despite attempts to save him from lethal injection.

In December, 2000, 3rd District Judge Jim Parsons sentenced Danielle Simpson to die for his part in the death of 84-year-old Geraldine Davidson. Davidson, a former school teacher, was abducted that January during a burglary of her Palestine home. Her body was found a few days later in the Neches River. Simpson, one of four defendants in the case was the only one sentenced to die for the crime.

In recent days, attempts to help Simpson avoid execution gained national attention. Simpson won federal court approval earlier this year to stop his appeals. Later, he changed his mind and allowed his lawyers to try to save him. According to an Associated Press story, his attorneys argued to the federal courts that Simpson is mentally impaired, incapable of deciding whether or not to drop his appeals, and offered his repeated reversals as proof.

They also wanted permission to appeal a lower court’s determination that Simpson is not mentally-impaired, and challenged the elimination of two Black people from consideration to serve on Simpson’s trial jury. Simpson is Black. There were no Blacks on the jury that convicted him, and decided he should be put to death. Ultimately all the appeals were denied.

Testimony in Simpson’s 2008 trial detailed the final hours and death of Davidson. The state was represented by Anderson County District Attorney Doug Lowe. Mark Calhoon, now 3rd District Judge, assisted Lowe in the prosecution.

According to accounts in the Athens Review, testimony revealed that Davidson had been tossed into the chilly river with her hands tied behind her back, and a cinder block tied to her ankles. A medical examiner testified that Davidson was alive when thrown into the river.

Earlier this week, Texas Attorney General Greg Abbott released information pertaining to the murder. According to Abbott’s office, Simpson held a knife to Davidson’s throat, and ordered her to surrender money from her purse. Her mouth was duct-taped, her hands tied behind her and her legs taped. A pillow case was pulled over her head, and then he carried her over his shoulder outside and threw her in the trunk of her car.

Simpson v. State, 119 S.W.3d 262 (Tex.Crim.App. 2003). (Direct Appeal)

Defendant was convicted following jury trial in the 3rd District Court, Anderson County, James N. Parsons, III, J., of capital murder and sentenced to death. Defendant's appeal was automatic. The Court of Criminal Appeals, Price, J., held that: (1) trial court was required to give defendant opportunity to question venire members upon demand before excusing them for cause; (2) error in removing venire member for cause without allowing defendant opportunity to question her was subject to harmless error review; (3) error in removing venire member for cause without allowing defendant to question her was harmless; (4) order overruling Batson challenge was not clearly erroneous; (5) witnesses' testimony that defendant's wife told them he and accomplice threw victim in river did not come within statement against interest exception to rule against hearsay; but (6) error in admitting hearsay testimony was harmless; (7) testimony by victim's son that family wanted death penalty was outside permissible scope of victim-impact evidence; but (8) testimony, together with state's reference to family's wishes, did not warrant mistrial. Affirmed.

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

The appellant was convicted in December 2000 of capital murder. Tex. Penal Code § 19.03(a). Pursuant to the jury's answers to the special issues set forth in Texas Code of Criminal Procedure Article 37.071 sections 2(b) and 2(e), the trial judge sentenced the appellant to death. Art. 37.071 § 2(g).FN1 Direct appeal to this Court is automatic. Art. 37.071 § 2(h). The appellant raises twelve points of error. We shall affirm. FN1. Unless otherwise indicated all future references to Articles refer to the Texas Code of Criminal Procedure.

In his first point of error, the appellant claims the trial court erred in sustaining the State's challenge for cause against venire member Brenda S. Looney without allowing the appellant's counsel an opportunity to question her. The trial court conducted Looney's voir dire and devoted its questioning almost exclusively to the issue of her ability to follow the law in light of her personal views about the death penalty. The State challenged her for cause on the ground that she opposed the death penalty, and its challenge was granted. The appellant objected to the granting of the challenge without being given an opportunity to question Looney. On appeal, the appellant relies on Perillo v. State, 656 S.W.2d 78 (Tex.Crim.App.1983), for his claim that his counsel should have been allowed to question Looney and he relies on Gray v. Mississippi, 481 U.S. 648, 107 S.Ct. 2045, 95 L.Ed.2d 622 (1987), and Davis v. Georgia, 429 U.S. 122, 97 S.Ct. 399, 50 L.Ed.2d 339 (1976), in support of his argument that the error is not subject to a harm analysis.

In Perillo, also a death penalty case, this Court squarely addressed whether the trial court erred in refusing to allow defense counsel the opportunity to question a venire member, and, if so, whether it was reversible error. Perillo, 656 S.W.2d at 79. After noting that under Article 35.17 both parties are expressly entitled, on demand, to examine venire members individually, we held that excusing a venire member without allowing defense counsel an opportunity to question him was error. But whether such error was harmful, and thus reversible, depended upon whether the prospective juror was shown to be disqualified under Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968).FN2 In other words,

FN2. After we decided Perillo, the standard set forth in Witherspoon was clarified and reiterated by the Supreme Court in Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985).

Excusing a prospective juror without giving counsel for the defendant an opportunity to question the juror should not ever occur unless the record affirmatively and unequivocally reflects that the prospective juror would, regardless of the evidence, automatically vote for a verdict that would prohibit the assessment of the death penalty. Id. at 81. Because the prospective juror at issue in Perillo was a vacillating juror rather than one absolutely disqualified under Witherspoon, we held defense counsel should have been given an opportunity to examine him. Id. at 82. By failing to give defense counsel such an opportunity, we held the trial court committed reversible error. Ibid.

In Howard v. State, 941 S.W.2d 102 (Tex.Crim.App.1996), we modified the holding in Perillo. We explained that, in prior cases, we had held that it was error for the trial court to refuse a defendant's request to question venire members before they were excused for cause. Id. at 113.FN3 We noted that, in those cases, we would find the error harmless if, at the time the venire member was excused, the venire member made it absolutely clear that her views on the death penalty would prevent or substantially impair her ability to comply with her oath. Ibid.

FN3. See, e.g., Felder v. State, 848 S.W.2d 85, 91 (Tex.Crim.App.1992); Drinkard v. State, 776 S.W.2d 181, 184 (Tex.Crim.App.1989).

In Howard, we were persuaded that our earlier approach was incorrect, and we modified it. We held that, if after inquiry by the trial court, it is clear that the venire member is conclusively biased against a phase of law upon which the State is entitled to rely during the guilt or punishment phases and that these views would prevent or substantially impair the venire member's ability to perform her duties, it was not error for the trial court to deny the defendant an opportunity to question venire members before granting the State's challenge for cause. Ibid.

Today, we once again modify the standard for determining error when the trial court denies a defendant's request to question individually a venire member in a capital case. First, Article 35.17, Section 2, is the basis for the appellant's objection that he was not provided an opportunity to question the venire member about her views on the death penalty. That section provides that:

In a capital felony case in which the State seeks the death penalty, the court shall propound to the entire panel of prospective jurors questions concerning the principles, as applicable to the case on trial, of reasonable doubt, burden of proof, return of indictment by grand jury, presumption of innocence, and opinion. Then, on demand of the State or defendant, either is entitled to examine each juror on voir dire individually and apart from the entire panel, and may further question the juror on the principles propounded by the court. Tex.Code Crim. Proc. art. 35.17, § 2. Although the trial court has a great deal of discretion in placing reasonable restrictions on the exercise of voir dire examination, Boyd v. State, 811 S.W.2d 105, 115 (Tex.Crim.App.1991), the statute is clear. The trial court, upon demand of either party, is required to permit that party to individually question a venire member on the principles already discussed by the trial court. As a result, a trial court that denies a party's request has erred.

The notion of “reversible error” in terms of error that is not subject to a harm analysis has been greatly impacted by our decision in Cain v. State, 947 S.W.2d 262, 264 (Tex.Crim.App.1997), when we recognized that “[e]xcept for certain federal constitutional errors labeled by the United States Supreme Court as ‘structural,’ no error, whether it relates to jurisdiction, voluntariness of a plea, or any other mandatory requirement, is categorically immune to a harmless error analysis.” Both Perillo and Howard predate our decision in Cain. Perillo essentially held that when defense counsel was denied an opportunity to question a venire member who was vacillating under Witherspoon,FN4 there was per se reversible error.

FN4. See also Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985), for articulation of standard applicable now.

In light of Cain, such error is now subject to a harm analysis. And, because the appellant's complaint is that he was not afforded an opportunity to question the venire member under Article 35.17, we review the record for harm under the nonconstitutional standard provided in Rule 44.2(b). Under Rule 44.2(b), we disregard all nonconstitutional errors that do not affect the appellant's substantial rights. We have held that a substantial right is affected when the error has a substantial and injurious effect or influence in determining the jury's verdict. Johnson v. State, 43 S.W.3d 1, 4 (Tex.Crim.App.2001).

In this case, the trial court explained the special issues to the venire member. After the explanation, the trial court began to question the venire member about her views on the death penalty. At first, the venire member said that she could answer the special issues according to the evidence even if it meant that the trial court would impose a death sentence. Then the trial court questioned the venire member about the questionnaire she had completed. In the questionnaire, the venire member said that she was opposed to the death penalty because she could not put anyone to death. The venire member vacillated on whether she could impose the death penalty until the trial court asked her about her questionnaire response that the death penalty may be appropriate in certain cases, but that she could never return a verdict that would require the trial court to impose a death sentence. When asked about this, she said that her personal feelings would override any evidence that was presented during the trial and that she could never return a verdict of death. She also explained that she holds religious beliefs against the death penalty.

Given the venire member's testimony, it is highly unlikely that the appellant would have been able to convince her to say otherwise or that the trial court would have abused its discretion in dismissing her for cause. As a result, we have a fair assurance that the trial court's error did not influence the outcome of the trial. Point of error one is overruled.

In points of error two through seven, the appellant claims the trial court erred in sustaining the State's challenges for cause against six different venire members on the basis of their purported inability to impose the death penalty. The appellant did not preserve error on any of these points because he failed to object when the trial court sustained the State's challenges for cause. Tex.R.App. Proc. 33.1. Points of error two through seven are overruled.

In point of error eight, the appellant claims the trial court erred in overruling his Batson challenge. Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). During voir dire, the appellant objected on Batson grounds to the State's use of a peremptory strike against venire member John Willis Earl. Without making a finding that the appellant had made a prima facie case, the trial court entertained the State's explanations for its strike against Earl.

The prosecutor explained that Earl was struck for the following reasons: (1) Earl had a nephew who was an inmate in the Texas Department of Criminal Justice, Institutional Division (“TDCJ-ID”); (2) Earl had been an employee of TDCJ-ID from 1977-1978; (3) during his employment with TDCJ-ID, Earl worked with inmates convicted of murder, some of whom he said may be innocent; (4) Earl believed African-Americans receive the death penalty “disproportionately more than other races or groups”; (5) Earl believed death row inmate Gary Graham was unjustly convicted and treated unfairly and strongly believed that the governor should have granted Graham a stay of execution; and (6) a juror consultant who reviewed Earl's questionnaire and voir dire responses suggested he should be struck.

On cross-examination, the appellant asked the prosecutor if any of the other venire members who had worked at TDCJ-ID had been challenged. The prosecutor replied that he did not know. The appellant asked the prosecutor whether there were other venire members besides Earl who were struck by the prosecution because they had known people in prison or had relatives in prison. The prosecutor responded that it was his recollection that there were others and that they had been struck. He named one venire member who was struck because her daughter's boyfriend was in prison. He also named another venire member who was initially going to be struck because he had several friends in prison, but upon gaining insight into the defense strikes, the prosecution decided against striking him. The prosecutor stated that a third potential juror's involvement in a drug rehabilitation program was a “large consideration” in their decision to use a strike against her. A fourth potential juror's friendship with a man in an Oklahoma prison was a consideration in striking him. There was no further cross-examination. The trial court found the prosecutor's explanations were “clear, ... specific, ... supported by the record, ... ha[d] facial validity,” and were race-neutral, and overruled the appellant's Batson challenge. The appellant claims the prosecutor's explanations were pretextual.

A Batson challenge generally gives rise to a three-step process. First, the defendant must make a prima facie case that a venire member was peremptorily excluded on the basis of race. Jasper v. State, 61 S.W.3d 413, 421 (Tex.Crim.App.2001). Next, the prosecution must come forward with race-neutral reasons for the peremptory strike. Finally, the defendant has the opportunity to rebut the State's explanations. The burden of persuasion remains with the defendant to prove purposeful discrimination. Ibid.; see also Johnson v. State, 68 S.W.3d 644, 649 (Tex.Crim.App.2002). If, as here, the State offers a race-neutral explanation before any inquiry on the prima facie case, the issue of a prima facie case is moot. Johnson, 68 S.W.3d at 649.

In Purkett v. Elem, 514 U.S. 765, 768, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995), the Supreme Court explained that “[u]nless a discriminatory intent is inherent in the prosecutor's explanation, the reason offered will be deemed race neutral.” See also Guzman v. State, 85 S.W.3d 242, 246 (Tex.Crim.App.2002). None of the prosecutor's explanations reflect an inherently discriminatory intent. And the appellant did not attempt to rebut the State's reasons. The trial court's finding that the State's explanations were race-neutral is supported by the record and is not clearly erroneous. Point of error eight is overruled.

In his ninth point of error, the appellant claims the trial court erred in permitting the prosecutors to argue a comparison between the appellant and the victim at the guilt phase of trial. In his tenth point of error, the appellant claims the trial court erred in permitting the prosecutors to give their personal opinions in the jury argument. The appellant did not object to any of the complained-of jury arguments and therefore forfeited his right to raise any alleged error on appeal. Cockrell v. State, 933 S.W.2d 73, 89 (Tex.Crim.App.1996)(defendant must object and pursue objection to adverse ruling in order to complain about erroneous jury argument on appeal). Points of error nine and ten are overruled.

In his eleventh point of error, the appellant claims the trial court erred in admitting hearsay statements of the appellant's wife, Jennifer Simpson, on grounds that they were inadmissible under the Sixth Amendment and the Confrontation Clause. During the guilt phase of the trial, Christina Walker testified that Jennifer told her that “Lionelle had tied the woman and [the appellant] had threw [sic] her in there ... the river.” Another witness, Kenosha Walker, testified that Jennifer Simpson told her that “[t]hey went to the Neches River and that [the appellant] and Lionelle got the woman out of the trunk and Lionelle tied a rock to her ankles[.]” The trial court admitted both statements as statements against interest under Rule of Evidence 803(24).

Rule of Evidence 803(24) provides for an exception to the hearsay rule for statements against the declarant's interest. It does not provide an exception for a declarant's statements against someone else's interest, such as a third party, co-actor, or co-defendant, unless the statement against the other person's interest is also sufficiently against the declarant's interest to be considered reliable. Guidry v. State, 9 S.W.3d 133, 149 (Tex.Crim.App.1999). In the statements at issue here, Jennifer, as the declarant, did not implicate herself at all except to suggest her presence by saying that “they” went to the river. This is not enough to render the statements sufficiently against her interest to be reliable. Therefore, the statements made by Jennifer that were against the appellant's interest were not admissible under Rule 803(24).

The appellant claims admission of the statements violated the Confrontation Clause of the Sixth Amendment. Admission of hearsay evidence against a criminal defendant implicates the Confrontation Clause because the defendant is not afforded an opportunity to confront the out-of-court declarant. Ibid. (citing Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980)).

Even if a hearsay statement meets the requirements for an exception to the general prohibition, it must also bear sufficient “indicia of reliability” for it to be admissible under the Confrontation Clause. A statement is per se reliable if it falls within a “firmly rooted” exception to the hearsay rule. Even if a statement does not fall within a firmly rooted exception to the hearsay rule, it may still be sufficiently reliable for Confrontation Clause purposes if it has “particularized guarantees of trustworthiness.” Id. at 150. It is unlikely the statements at issue in this case possessed the particularized guarantees of trustworthiness sufficient to overcome Confrontation Clause concerns. But we need not decide the issue of the statements' admissibility under the Confrontation Clause because any error in the admission of the statements did not contribute to the appellant's conviction.FN5 Tex.R.App. Proc. 44.2(a). Under Rule of Appellate Procedure 44.2(a), we review the entire record and reverse the conviction unless we determine beyond a reasonable doubt that the error did not contribute to the conviction. We will review the evidence admitted during the guilt phase of the trial.

FN5. Although the statements were also inadmissible under Rule of Evidence 803(24), we will conduct a harm analysis under the more stringent standard established in Rule of Appellate Procedure 44.2(a) for constitutional harm.

The appellant was charged with the offense of capital murder committed in the course of committing or attempting to commit kidnapping. The evidence admitted during the guilt phase of the trial established that there were three parties to the victim's initial kidnapping: the appellant, Jennifer Simpson, and the appellant's thirteen-year-old cousin, Edward McCoy. All three lived with McCoy's mother and sisters in a house a couple of blocks from the victim's house. The victim was an 84-year-old woman who lived alone. The appellant had burglarized the victim's house on at least two previous occasions.

McCoy testified that, on the morning of the offense, the appellant asked him if he wanted to go with him to burglarize the victim's house. McCoy agreed. The appellant, Jennifer, and McCoy all walked around the corner to the victim's house. After knocking on the door to see if anyone was home, the appellant went into the victim's garage, got a hammer and pick, and broke a window. Jennifer climbed through the window and then went around and opened the door. Once inside, Jennifer took a ring and some money, and the appellant took a watch. About fifteen minutes later the victim came home. When the victim entered the kitchen, the appellant approached her from behind and held a knife to her neck. He asked the victim for money which he then retrieved from her purse. The appellant directed McCoy and Jennifer to restrain the victim while he left to get a pillow case and duct tape. When he returned, the appellant taped the victim's mouth and bound her hands behind her back and told Jennifer to tape her legs. The appellant then put the pillow case over the victim's head, threw her over his shoulder, and carried her outside. The appellant unlocked the trunk of the victim's car and placed her inside.

The three climbed in the victim's car and drove to a couple of different locations to buy drugs. McCoy described the appellant and Jennifer as acting normally and having a good time. After purchasing marijuana FN6 and making an unsuccessful attempt to buy some crack cocaine, the three drove about ten miles from Palestine to Grapeland to visit the appellant's aunt and her daughter, Shay. McCoy testified that the appellant opened the trunk and showed the victim to Shay. When the victim asked for her medicine, the appellant told her to “shut up” and slammed the lid closed. The rest of the afternoon the appellant drove around in the victim's car visiting and congregating with various friends in Palestine, occasionally opening the trunk to show off the victim. Jennifer used the victim's cell phone throughout the day.

FN6. McCoy stated that they bought “sweets” which he described as cigars filled with marijuana instead of tobacco and dipped in embalming fluid.

The original three parties were eventually joined by the appellant's brother, Lionelle Simpson, who suggested they kill the victim. The appellant drove to a dead-end, and all four got out of the car. The appellant removed the victim from the trunk, and McCoy stated the appellant “chunked her on the ground.” The appellant and Lionelle re-taped the victim's arms and legs more tightly than before, beat her, and returned her to the trunk. The four proceeded to the Jack In The Box where they all ate hamburgers and french fries. After leaving the Jack In The Box, they drove to the Neches River, where the appellant and Lionelle had decided to dispose of the victim. They backed the car up to the river, opened the trunk, and Lionelle threw the victim onto the ground. Getting a running start, the appellant ran up and kicked the victim in the face. McCoy's following testimony is similar to the above objected-to hearsay statements: FN7

FN7. McCoy gave a statement shortly after his arrest in which he stated that he and Lionelle remained in the car while the appellant and Jennifer disposed of the victim. At trial, he explained that he lied in giving that statement because, on the night of the offense, Lionelle had threatened him with a .45 pistol, and he was afraid of him. [McCoy]. Then Lionelle got the rope and tied the rope around her legs and [the appellant] got the other half of the rope and tied it around the brick and threw the brick in the water. [Prosecutor]. Who threw the brick into the water? A. [The appellant]. Q. Then what happened? A. Then Lionelle got her hands and [the appellant] got her legs and started swinging her and chunked her in the river.

Others testified that later that night, the appellant “rented” them the victim's car to use for a couple of hours in exchange for drugs. Also entered into evidence was a letter written by the appellant to a cousin in which the appellant claimed he “was just the watch out person and driver of the car,” and accused Jennifer and McCoy of putting the victim in the trunk and throwing her in the river. The appellant stated in the letter that he and Lionelle remained in the car.

Given the strong evidence concerning the appellant's participation in the offense, we conclude beyond a reasonable doubt that the two hearsay statements describing the appellant's actions in the final moments of the murder did not contribute to the appellant's conviction or punishment, particularly in light of the fact that McCoy testified to virtually the same evidence. Although the hearsay testimony could have added credibility to McCoy's testimony, many other witness accounts and evidence separately corroborated McCoy's testimony. Point of error eleven is overruled.

In his twelfth point of error, the appellant claims “the trial court erred by denying a mistrial after the State introduced victim impact testimony calling for the death penalty.” During the punishment phase of the trial, the State called one of the victim's sons, Clyde Davidson, who testified as follows: [Prosecutor]. And I don't think it would be appropriate for you to pursue what your mother would have wanted to do in this case, but what does your family want to have done? [Witness]. I've talked with all my children and I've talked with my wife. I've talked with my grandchild that is an adult, and unanimously we want the death penalty.

The appellant objected under Payne v. Tennessee, 501 U.S. 808, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991).FN8 The court sustained the objection and instructed the jury to disregard. The appellant's request for a mistrial was denied. The prosecutor referred to the family's wishes again in closing argument:

FN8. It is not entirely clear, at trial or from the appellant's brief on appeal, whether the appellant claims Clyde Davidson's testimony and the later reference to it are objectionable as outside the scope of “victim impact evidence” or as so prejudicial as to be of due process concern, even if falling within the definition of “victim impact evidence.”

[Prosecutor].... I can appreciate the fact that [the appellant's] father can look into a picture from the newspaper and look into [the victim's] eyes and can assume that she wouldn't want this. The family does. The trial court sustained the appellant's objection and instructed the jury to disregard. The appellant's motion for a mistrial was overruled.

In Payne, 501 U.S. at 827, 111 S.Ct. 2597, the United States Supreme Court held “that evidence about the victim and about the impact of the murder on the victim's family is relevant to the jury's decision as to whether or not the death penalty should be imposed.” The Supreme Court recognized the possibility that “unduly prejudicial evidence” might be introduced and held that the Due Process Clause would provide a mechanism for relief under those circumstances. Id. at 825, 111 S.Ct. 2597. In Mosley v. State, 983 S.W.2d 249, 262 (Tex.Crim.App.1998), cert. denied, 526 U.S. 1070, 119 S.Ct. 1466, 143 L.Ed.2d 550 (1999), we held that “[b]oth victim impact and victim character evidence are admissible, in the context of the mitigation special issue, to show the uniqueness of the victim, the harm caused by the defendant, and as rebuttal to the defendant's mitigating evidence.” We have described victim-impact evidence as evidence “concerning the effect that the victim's death will have on others, particularly the victim's family members.” Mathis v. State, 67 S.W.3d 918, 928 (Tex.Crim.App.2002) (quoting Mosley, 983 S.W.2d at 261).

The wishes of the victim's family members as to the defendant's fate fall beyond the parameters of victim-impact evidence and are not admissible. Payne, 501 U.S. at 830 n. 2, 111 S.Ct. 2597 (overruling the portion of Booth v. Maryland, 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987), relating to victim-impact evidence, but not overruling the prohibition on the victim's family's opinions on the defendant or the punishment he should receive). A statement of their opinions as to the punishment deserved by the defendant is not a reflection of how their lives have been impacted by the victim's death. Thus, Clyde Davidson's testimony was outside the scope of victim impact evidence, and the trial court appropriately sustained the appellant's objection to the testimony and instructed the jury to disregard it.FN9 The appellant claims that his motion for mistrial should have been granted because the statement regarding the victim's family's wishes was so prejudicial that it tainted the jury's verdict and violated the appellant's right to a fair trial. The question is whether the court should have granted the appellant's motion for mistrial as well.

FN9. With regard to Clyde Davidson's testimony, the State correctly points out that an objection is required as soon as the ground for an objection becomes apparent. Thus, the State argues that the appellant should have objected as soon as the question was asked rather than after it was answered. But when viewed within the context of the immediately preceding questions asked by the State, the answer sought was, at least arguably, not readily apparent. Therefore, the appellant did not waive error by failing to timely object to the question.

A trial court's denial of a motion for mistrial is reviewed under an abuse of discretion standard. Wood v. State, 18 S.W.3d 642, 648 (Tex.Crim.App.2000). Mistrial is appropriate for only “highly prejudicial and incurable errors.” Ibid. It may be used to end trial proceedings when faced with error so prejudicial that “expenditure of further time and expense would be wasteful and futile.” Ibid. We have held that “ordinarily, a prompt instruction to disregard will cure error associated with an improper question and answer.” Ovalle v. State, 13 S.W.3d 774, 783 (Tex.Crim.App.2000). The trial court is required to grant a motion for a mistrial only when the improper question is “clearly prejudicial to the defendant and is of such character as to suggest the impossibility of withdrawing the impression produced on the minds of the jurors.” Wood, 18 S.W.3d at 648.

In this case, the erroneously elicited statement and the State's later reference to it were prejudicial, and we strongly discourage the State from soliciting or making any references to the wishes of the victim's family or friends about the punishment to which the defendant should be sentenced. But, the evidence in support of the jury's verdict on punishment was very substantial. The evidence admitted during the punishment phase showed that the appellant was a member of a gang called the Southside Cryps whose members engaged in dealing drugs and fighting. An expert on gangs testified that the tattoos on the appellant's arm were particular to membership in the Southside Cryps. An expert testified about the prevalence of drugs, gangs, weapons, and violence in prison.

The evidence showed that the appellant had engaged in other burglaries. McCoy described breaking into a house with the appellant and Lionelle a block from the victim's house about a month before the instant offense. The three spray-painted the interior of the house with orange, black, and silver paint, writing their gang nick names and other gang-related words, phrases, and obscenities. Among the words painted by the appellant included “white people should die.” The State introduced color photographs of the vandalism. The State introduced evidence that the appellant had committed at least two other burglaries of other people's homes.

The appellant also committed violence against other people, some of which were his own family members. A police officer testified to responding to a call from Jennifer Simpson, the appellant's wife, who claimed the appellant punched her in the face. Another officer testified that he responded to a call where a fight had taken place between the appellant and his sister. The appellant's sister told the officer that she and the appellant had fought over the appellant “fondling” his nine-year-old cousin. After exchanging blows with his sister, the appellant fled the house, knocking out all of the windows in his sister's car with a brick. The State also presented evidence that the appellant had shot at a former girlfriend with a sawed-off shotgun. One officer testified that he responded to a call from a girl who claimed the appellant assaulted her by punching her with his fist in the side of her head. In 1999, the appellant received deferred adjudication probation for ten years in exchange for pleading guilty to a charge of indecency with a child.

Finally, a psychiatrist testified that he had diagnosed the appellant with anti-social personality disorder and that the appellant exhibited characteristics of a psychopath. He stated that in his opinion the appellant poses a high level of risk for future acts of criminal violence. He described the appellant as a “predator.”

During the punishment phase, the defense introduced evidence of substantial verbal and physical abuse of the appellant's mother by the appellant's father while the appellant was growing up, along with evidence of neurological disfunction and injuries.

According to the appellant's evidence, he was borderline mentally retarded. He had suffered from at least two head injuries, one in which he was knocked out in a football game and remained unconscious for an hour and a half and another incident in which he was thrown from a “bucking barrel” (a simulated bucking bronco). A pediatric physician with special qualifications in pediatric neurology testified that the appellant had an abnormal neurological status as a result of the combination of his borderline mental retardation and trauma to the head resulting in concussion. A medical doctor specializing in psychiatry testified that in addition to the appellant's borderline mental retardation, childhood abuse and trauma, the appellant also has brain damage called subdural hematoma. He testified that an MRI revealed the existence of two large blood clots sitting on both sides of the appellant's brain, compressing the brain. He testified that this type of damage could affect behavior, judgment, impulse-control, and the ability to tolerate frustration. A clinical psychologist testified that the appellant was not a psychopath.

This case involved the brutal murder of an elderly woman. Also, the appellant has a history of gang membership, breaking the law, and committing violence against people close to him. All of this evidence was received before the comment by the victim's son. We also think that the jury would not place much weight on the erroneously elicited comment. Jurors understand that the victim's family members will be emotional and therefore less objective about what punishment should be given. It was probably no great surprise that the victim's family was in favor of the death penalty.

After reviewing the nature and extent of the evidence against the appellant and the trial court's prompt instruction, we conclude that the instruction cured any prejudice flowing from the witness's testimony and the State's argument. As a result, the trial court did not abuse its discretion in overruling the appellant's motion for mistrial. Point of error twelve is overruled.

The judgment of the trial court is affirmed. KELLER, P.J., concurred in the judgment.

Ex parte Simpson, 136 S.W.3d 660 (Tex.Crim.App. 2004) (State Habeas).

Background: Defendant's capital murder conviction and death sentence were affirmed, 119 S.W.3d 262. Defendant applied for writ of habeas corpus from Anderson County, James Parsons, J., and brought motion to consider additional evidence of mental retardation. The habeas trial judge recommended the denial of relief.

Holdings: The Court of Criminal Appeals, Cochran, J., held that: (1) habeas judge was not required to hold live evidentiary hearing; (2) evidence did not establish Atkins claim of mental retardation which would make execution of defendant cruel and unusual punishment; and (3) Court of Criminal Appeals would not consider evidentiary materials submitted directly to the Court. Relief denied; motion denied.

Simpson v. Quarterman, 291 Fed.Appx. 622 (5th Cir. 2008) (Federal Habeas).

PER CURIAM: 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.

Danielle Simpson was convicted by a Texas jury and sentenced to death for the capital murder of Geraldine Davidson in 2000. His conviction and sentence were affirmed on direct appeal, and the Supreme Court denied certiorari. Simpson v. State, 119 S.W.3d 262 (Tex.Crim.App.2003), cert. denied, 542 U.S. 905, 124 S.Ct. 2837, 159 L.Ed.2d 270 (2004). The Texas Court of Criminal Appeals denied his application for state habeas relief. Ex parte Simpson, 136 S.W.3d 660 (Tex.Crim.App.2004). Simpson filed a petition for federal habeas relief in June 2005, presenting 39 claims for relief. The district court denied relief in March 2007. It granted a certificate of appealability (“COA”) for Simpson's claim that he is entitled to a federal evidentiary hearing on his claim that he is mentally retarded and ineligible for the death penalty, but denied a COA for Simpson's other claims, including Simpson's claim that he is mentally retarded.

We hold that the district court erred by failing to conduct an evidentiary hearing on Simpson's mental retardation claim. See Hall v. Quarterman, 534 F.3d 365 (5th Cir.2008) (per curiam). Accordingly, we REMAND the case to the district court to allow the district court to conduct a evidentiary hearing on the issue of whether Simpson is mentally retarded, and thereafter to reconsider its denial of relief as to Simpson's mental retardation claim, with respect to which we express no opinion. Upon entry of judgment on remand, the district court is instructed to return the case to this court for further proceedings, including consideration of Simpson's request for expansion of the COA. If any party or parties aggrieved by the district court's rulings on remand wish appellate review of same, such party or parties must file a notice of appeal and/or request for certificate of appealability, as appropriate under the circumstances.

This case is REMANDED to the district court for this limited purpose as stated above.

Simpson v. Quarterman, Slip Copy, 2009 WL 2462248 (5th Cir. 2009) (Federal Habeas).

PER CURIAM: 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.

Danielle Simpson was convicted by a Texas jury and sentenced to death for the capital murder of Geraldine Davidson in 2000. His conviction and sentence were affirmed on direct appeal, and the Supreme Court denied certiorari. Simpson v. State, 119 S.W.3d 262 (Tex.Crim.App.2003), cert. denied, 542 U.S. 905 (2004). After exhausting his state habeas remedies, Simpson sought federal habeas relief. The district court granted a certificate of appealability for Simpson's claim that the district court erred by denying him an evidentiary hearing on his claim that he is mentally retarded and thus ineligible for execution under Atkins v. Virginia, 536 U.S. 304 (2002). Simpson requested from this court an expansion of the COA for three additional claims.

On August 29, 2008, we remanded the case to the district court for an evidentiary hearing on Simpson's Atkins claim, and held in abeyance our consideration of Simpson's request for an expansion of the COA. On remand, the district court conducted an evidentiary hearing and found that Simpson is not mentally retarded. The case was re-submitted to this court on February 3, 2009.

On March 9, 2009, Simpson filed a motion to remand for a hearing, in accordance with Mata v. Johnson, 210 F.3d 324 (5th Cir.2000), on his request to waive habeas review and proceed with execution. In the motion, Simpson's court-appointed counsel stated that while Simpson's intellectual capabilities are limited, he understands that if he waives his appeal he will soon be executed. Counsel expressed a belief that Simpson is competent, although mentally retarded. Counsel stated that, given that Simpson has spent eight years confined in a small cell, his request to be executed is not unreasonable. In a handwritten statement attached to the motion, Simpson explained his reasons for wanting to drop his appeal:

I'm tired of being in a institution that's unjust, degrading, and corrupted-whereas on the other hand, I'm tired of struggling to survive in a system that's highly injustices. “I'm ready to die”!! If I can't be free-“ Kill Me ”.!!

On April 10, 2009, we granted Simpson's motion and remanded the case to the district court for the limited purpose of conducting an evidentiary hearing in accordance with Mata, to determine whether Simpson is competent to waive federal habeas review and whether his decision to do so is knowing and voluntary.

On remand, the district court ordered an evaluation of Simpson by an expert mutually agreed on by counsel, and conducted an evidentiary hearing. After considering Simpson's testimony at the hearing, as well as the report and testimony of the expert, the district court found:

[T]here is no evidence that [Simpson] is suffering from a mental disease, disorder, or defect. [Simpson] has the capacity to appreciate, and in fact does appreciate and understand, his current legal position and the options available to him. He is able to make a rational choice among these options. The court finds that Danielle Simpson is mentally competent to waive further habeas review and that his desire to forego further litigation is knowing and voluntary.

On July 6, Simpson's counsel filed with this court a notice that Simpson intended to continue with his appeal. Counsel moved to withdraw, and for the appointment of new counsel to represent Simpson. We requested that the State respond to the motion to withdraw.

On July 9, prior to receipt of the State's response to the motion to withdraw, Simpson's counsel contacted the Clerk's Office and advised that counsel had received a letter from Simpson saying that he was confused when he said that he wanted to continue his appeal and that, in fact, he wanted to drop all challenges to his execution.

On July 22, Simpson filed a supplemental request to waive habeas review and proceed with execution. He requested leave to withdraw his notice of intention to continue appeal, and his counsel requested leave to withdraw their motion to withdraw as counsel. Simpson's counsel states that he believes that Simpson's desire to waive his appeal is sincere and carefully considered, and that his earlier notice of intention to continue with the appeal was the result of misunderstandings and miscommunication. Attached to the July 22 request is a statement by Simpson, in which he states, in his own handwriting, his desire to proceed with execution and forego habeas review:

I'm tired of being imprisoned in a system that's devaluated, and struggling to survive under the cruel and unusual punishments of an unjust institution better know [ sic ] as Texas death row here on the Polunsky unit in Livingston Texas. I want to drop my appeals because, I don't have “ no ” family support, care, nor communications coming from my mother or sisters, etc .... and providing that all my support comes from overseas friends, I greatly appreciate the unconditional love and support they've provided to me over the years. Meanwhile, being locked up in a [ sic ] isolated solitary cell of confinement 23/ and 24 hours per day isn't justice nor is it considered living-its cruel and unjust, therefore I'm really looking forward to my execution because its just “me against the world”....

The district court, having conducted a hearing and considered the opinion of an expert, has found that Simpson is competent to waive further habeas review and that his decision to do so is knowing and voluntary. Based on those findings, as well as counsel's representations and Simpson's own statement, we conclude that Simpson, being competent to do so, has knowingly and voluntarily waived further habeas review. Accordingly, Simpson's motion to dismiss his appeal is