Andrew Porter v. The State of Texas--Appeal from 82nd District Court of Robertson County

IN THE

TENTH COURT OF APPEALS

 

No. 10-96-097-CR

 

ANDREW PORTER,

Appellant

v.

 

THE STATE OF TEXAS,

Appellee

From the 82nd District Court

Robertson County, Texas

Trial Court # 95-08-15,816-CR

O P I N I O N

Andrew Porter was convicted of the offense of capital murder. Tex. Penal Code Ann. 19.03 (Vernon 1994). The State did not seek the death penalty, and Porter was sentenced to life imprisonment. Id. 12.31(a) (Vernon 1994). He appeals on nine points. We will affirm the judgment.

Porter was indicted for intentionally and knowingly causing the deaths of Carol Gillespie and Jerry Pyle by shooting them with a firearm on July 20, 1995. The shooting occurred in Porter's home near Bremond around 5 p.m. Porter called 9-1-1 around 2 a.m. When police arrived, they found both bodies in a bedroom. Gillespie's body was kneeling by the foot of the bed, slumped over a chest. She had suffered a gunshot wound to the chest with the bullet hole entering the mattress behind her back and appeared to have been pistol whipped. Pyle's body was lying across the bed, a Smith and Wesson .38 revolver in his right hand. He had suffered five gunshot wounds and also appeared to have been pistol whipped.

Gillespie was Porter's former live-in girlfriend. She had moved out of the home approximately a week before the shootings. Porter's defensive theory was that Gillespie had come to the house to collect some of her personal items. She and Porter had argued when she tried to take some lamps which were not hers. Gillespie had gone outside and returned with Pyle. Pyle had pulled a gun on Porter and the men had struggled. The gun discharged during the struggle, striking Pyle. Gillespie attempted to intervene and was shot in the chest.

The State's theory was that Porter intentionally shot and killed Gillespie and Pyle. Through the testimony of the medical examiner and investigating officers, the State sought to establish that the wounds could not have been suffered accidently in a struggle.

The jury was charged with capital murder, murder, self-defense, and deadly force in defense of person and property. It found Porter guilty of capital murder.

SUFFICIENCY OF THE EVIDENCE

We initially address Porter's sufficiency points. In point four, Porter asserts that the evidence is legally insufficient to support the jury's finding that he intentionally caused Gillespie s death. In point five, he asserts the evidence is factually insufficient to support the conviction and to support the jury's rejection of his claim of self-defense. The following testimony and evidence was adduced at trial:

Dr. Roberto Bayardo

Dr. Bayardo performed the autopsy on the victims. He testified that the time of death was approximately 5 p.m. He testified that Gillespie had suffered a contact wound the muzzle of the gun had been placed against her chest. The exit wound was unusual in that Gillespie's back had been against a hard surface at the time of the shot. He testified that Gillespie was on her knees when she was shot; that her arms were crossed defensively; and that the powder burns on her sleeves showed that she was clutching the muzzle.

Bayardo testified that Gillespie had a wound to the eye that was most likely from being hit with the muzzle of the gun. The blow had been so hard it had fractured her skull. The force of the blow caused her brain to ricochet and bruise. She also suffered an injury to the left ear consistent with being struck with a gun muzzle.

On cross-examination, Porter asked if it was possible that Gillespie could have fallen back against the mattress at the instant the gun discharged. Bayardo answered no problem. However, Bayardo testified that, given the wounds, the physical evidence, and the photographs from the crime scene, Gillespie had to have been leaning against the mattress, that the shooter could only have been in front and above her, and that she was on her knees when she was shot. Given the hypothetical that Pyle and Porter had been struggling and that Gillespie walked up and was shot, Bayardo stated that it was completely impossible that Gillespie was standing when she was shot.

Pyle's body was found lying face down over the bed, his right hand clutching the gun. He had suffered five gunshot wounds. Bayardo identified the five wounds. // The first was a distance wound to the back of the scalp with re-entrance in the left shoulder. The second was a distance wound to the chest. The third was a wound from a close-range shot to the left forearm with reentry into the abdomen. The fourth was a distance wound through the left thigh which also perforated the bladder. The fifth was a distance wound to the groin. Pyle had also suffered three cuts to the top of his head, possibly from being pistol whipped.

Bayardo described the difference between contact and distance wounds. He testified that the third wound the shot through the left forearm with reentry into the abdomen could not have been self-inflicted by Pyle. Bayardo testified that the shot was fired at least twelve inches away from the forearm. Bayardo testified that it was impossible that the first wound the scalp through the left shoulder was self-inflicted. He stated that the groin injury was probably inflicted when Pyle was on the ground.

Bayardo testified that it was not probable that a person could shoot himself five times in a struggle, although two of the wounds could possibly have been so sustained. In Bayardo's opinion, based on the autopsy, three of the shots could not have been fired by Pyle but were fired by someone else. Bayardo believed that both victims had been pistol whipped.

Gerald Yezak

Gerald Yezak, a Robertson County deputy sheriff, received a 9-1-1 call around 2 a.m. on July 21. He arrived at Porter's home and found Porter with three other people sitting on the porch. He spoke with a woman named Beatrice Johnson. Johnson, who lived in Slayton just outside of Lubbock, told Yezak that Porter had called her around 5:30 p.m. and had told her that the victims were dead.

Yezak read Porter his rights. Porter told Yezak that he had been watching television when Gillespie arrived that afternoon. He and Gillespie argued about some lamps which she wanted to take. She left the house and returned with Pyle. Porter rose from his seat, and Pyle pulled a gun. Porter said that Pyle held a gun on him while Gillespie ransacked the house. Gillespie called to Pyle, momentarily distracting him. Porter lunged at Pyle and grabbed him from behind. As the men struggled with the gun, it began discharging. Gillespie was shot when she attempted to intervene.

In Yezak's opinion, there had not been a struggle. From the trail of blood, Yezak believed that the first shot had been fired from the living room into the bedroom. He testified that there were no real signs of struggle in the living room. In the bedroom, Pyle's body was lying on the bed with his shirt tucked in, his pager was still clipped to his pants, and a package of cigarettes and a pen were in his shirt pocket. Porter's shirt, on the other hand, was torn from the bottom up indicating to Yezak that Porter himself had fabricated evidence of a struggle. Although Pyle was soaked in blood, Yezak did not see any blood on Porter's shirt.

Yezak testified that it was highly impossible for Pyle to have suffered such massive wounds and still be clutching the weapon. Yezak believed that Pyle had not fired the gun and the gun had been placed in Pyle's hand after his death.

Brian Bancroft

Brian Bancroft, another Robertson County deputy sheriff, testified that he assisted in the investigation. He described it as a very violent scene but not a struggle. He said there was blood on the walls of the bedroom and on Pyle, but no apparent blood on Porter. Bancroft said that Pyle's shirt was tucked in and he did not appear to be grasping the gun. Porter's shirt was torn from the bottom seam upwards. Bancroft testified that he had investigated many fights and had never seen a shirt torn in that manner as the result of a fight.

He testified that the first blood found on the scene was approximately three feet outside the bedroom door. He described the flow of the violence around the bed and the blood on the wall. From the gouges in the sheetrock and the pistol whipping of the victims, he opined that a beating had taken place in the corner of the bedroom.

Given the heavy weight of the gun, Bancroft stated that it was unlikely that the gun would still be in Pyle's hand. Rather, he believed the gun would have bounced out of Pyle's hand when his body fell onto the mattress. Given the enormous amount of blood at the scene, Bancroft stated that Porter would have had blood on him if he and Pyle had struggled. He stated that there was lots of evidence that the shooting was not in self-defense as Porter claimed.

Bancroft testified that Gillespie was on her knees with her arms crossed over her breasts when she was shot. He stated that her wounds were not the result of the struggling men falling into her.

Becky nickleson

Becky Nickleson, the 9-1-1 operator who took Porter's call, testified that Porter was calm. He told her that he did the shooting. He stated that they were trying to come in, and the man pulled a gun, and there was a struggle, and [Gillespie] got in the way.

Karen Blakley

Karen Blakley, a Department of Public Safety DNA and serologist analyst, testified that she ran tests on Porter's clothing and swatches of carpet removed from the crime scene. She found light blood stains on Porter's shirt and pants. She described the stains as transfer or smear stains stains which had not soaked through the cloth. Blakley testified that the transfer stains could have occurred in a number of ways in the course of a struggle or from wiping one's hands with blood on them. She identified the blood on Porter's shirt as Pyle's.

Jess Malone

Jess Malone, a Texas Ranger, testified that he has been involved in 40 to 50 homicide investigations. He was called to assist in the investigation and arrived around 8:30 a.m. Although Gillespie's body had already been removed, he observed a pool of blood and a bullet hole through the mattress where the body had been. Malone stated that the bullet hole was a downward shot and that Gillespie's right wrist had been in close proximity to the muzzle.

Pyle's body was still on the bed. Malone said he had never seen a gun remain in the hands of a person suffering from a self-inflicted wound. Given the organized bedroom, the blood low on the walls, and the gun in Pyle's hand, Malone testified that Porter's version of the struggle was totally inconsistent with the physical evidence.

Malone believed both victims had been pistol whipped. He based his opinion on the small amount of blood on the gun's trigger guard, sheetrock residue on the gun, and pistol strikes on the walls. Given the pistol whippings he thought had been inflicted, Malone did not believe enough blood was on the gun and that it had been wiped down or cleaned after the crime.

Malone described the bedroom as small, measuring 12 feet by 12 feet. It contained a double or queen-sized bed, a hutch, a rocker, and a dresser. He said the space between the bed and the bloody wall was tight. He saw nothing to indicate a struggle had occurred in the bedroom.

Malone testified that the condition of Porter's shirt was inconsistent with a close-proximity struggle. He testified that the gun emits a three-foot flame upon discharge. Nothing on Porter's shirt or on Pyle's shirt or pants indicated such a close proximity when the shots were fired.

He identified the weapon as a Smith and Wesson .38 caliber revolver. He testified that bullets for a .357 cannot be fired from a .38. He stated that three .38 bullets and two. 357 bullets were recovered from Pyle's pockets. More .357 bullets, similar to those in Pyle's pocket, were found in Porter's home.

Malone believed that the wound to Pyle's left forearm was probably the first wound. It was a defensive wound and left drops of blood just outside the bedroom doorway. He identified the groin wound as a revenge or anger wound. He believed the second shot had taken place near the rocker in the corner of the room. A shot which had gone through a window was probably the chest shot. Because there was no gun powder residue on Pyle's clothing, Malone believed that all of the shots, except the one to the left forearm, were from eight to twelve feet away. He testified that the shots had to have been made from that distance because of the tremendous heat and powder produced by the weapon. He believed the final shot was to Pyle's head when he was bent forward.

In Malone's opinion, Pyle had not held the gun while he was alive. Rather, the gun had been placed in his hand after his death. Malone believed that the gun would have bounced out of Pyle's hand when he fell. Malone testified that the laboratory findings on Pyle's hands were consistent with one of three things: 1) Pyle was in close proximity to the gun when it was fired, 2) he had fired the gun, or 3) he had handled the gun after it was fired.

Oscar Kizzee, Jr.

Oscar Kizzee, Jr., a latent print examiner with the DPS, testified that he found Gillespie s fingerprints on a Miller Lite beer can and on a package of cigarettes.

David Spence

David Spence, a DPS forensic chemist, testified that he analyzed two atomic absorption tests which had been performed on the hands of Gillespie and Pyle. He explained that a gunshot deposits residue in the immediate proximity of the shot on the hands of the shooter and any object in close proximity. The majority of the residue is expelled through the muzzle and travels several feet from the shooter.

He testified that gunshot primer residue traces of antimony, barium and lead was found on the backs of Gillespie's hands but not on her palms. Residue was found on the palms and backs of Pyle's hands. Spence testified that the residue on Pyle s palms was consistent with one of three choices: 1) Pyle fired the gun, 2) he was in close proximity to the gun when it was fired, or 3) he handled the gun after it was fired. Spence stated that the residue could have been from the gun being placed in Pyle's hand after his death. Also, a larger number of shots fired from a weapon increases the amount of residue.

Porter's Neighbors

Fruzella Proctor, Porter's next-door neighbor, testified that her house is half an acre from Porter's. She returned home from work around 5 p.m on July 20 and observed a blue and white truck parked at Porter's house. Porter was in his yard chopping weeds with a hoe. He was wearing blue jeans and a blue shirt and cap. The shirt was not torn and was not the shirt Porter was wearing when police arrived later.

Jerry Hayward testified that he and his mother live directly across the highway from Porter. Hayward arrived home around 6:15 p.m. He was acquainted with Pyle and recognized Pyle's truck at Porter's house. Around 6:30, Porter drove up to his house. He walked to a neighbor's house, then came over to the Hayward house. He asked Hayward and his mother if they had seen Gillespie. Porter stated that he didn't understand why Gillespie was driving the man's truck and that it wasn't right for someone trying to get back with someone. Hayward said Porter was wearing a brown shirt with a tag reading JTM. Hayward testified that the torn shirt Porter was wearing when arrested was not the shirt he had on that night.

Hayward testified that he and Pyle were working on the Bremond school construction site. The day before the slayings, Porter had come to the worksite and spoken with Pyle. Hayward said that he had expected a fight between the men but none occurred. He testified that Porter and Gillespie had been living together for about six months, that Gillespie had left early in the summer, and that she had started seeing Pyle a few weeks before the deaths.

James Beasley

James Beasley, Pyle's brother-in-law, testified that Pyle owned a .357 Ruger. He testified that Pyle did not own the gun found in his hand at the scene. He could not say whether Pyle borrowed or bought the gun before going to Porter's house. Beasley stated that Pyle was afraid of Porter.

Gillespie's friends

Penny Sumner, a friend of Gillespie's, testified that she helped Gillespie move out of the house approximately a week before the shootings. In late 1993 or early 1994, Sumner had seen bruises on Gillespie's arm and neck and Gillespie had gone to the hospital. Sumner's mother, Phyllis Slater, testified that she had seen black and blue bruises on Gillespie's leg. Gillespie told her that Porter had slammed her leg in a car door.

Mary Smart testified that Gillespie had called her at 1:30 a.m. on December 4, 1994, asking her to come over. When she arrived, she observed Porter hitting Gillespie. Smart told Porter it looked as if he had beaten Gillespie. He responded, Next time she's dead. Two days later, Smart took Gillespie to a battered women's shelter in Bryan. Gillespie remained there for a few weeks and then returned to live with Porter.

Records from the Falls Community Hospital and Clinic showed Gillespie had been treated for contusions of the neck and elbow on June 13, 1995. Gillespie had reported that she had been hit on the arm with a chair.

Roger Mattox

Roger Mattox, Bremond Chief of Police, testified that he had been called to the Falls Community Hospital on June 13, 1995. Gillespie reported that Porter had beaten her with the butt of a rifle. Mattox said that her injuries did not look like they had come from being struck by a rifle butt.

Beatrice Johnson

Beatrice Johnson, who lives in a town just outside of Lubbock, testified that she was a good friend of Porter's. He called her around 8 a.m. on the day of the shootings. He told her that he was having trouble with Gillespie who wanted to live in the house alone until she got a job. Johnson testified that Porter called again around 5 p.m. He told her that Carol and her old man had come in on him, and he thought they both were dead. She testified he was loud and upset. Johnson immediately left for Bremond, arriving around 1 a.m.

Pyle's Co-Workers

Pyle's co-workers testified that Porter had appeared at their worksite a few days before the shootings. Gary Downs testified that when Porter drove up, Pyle said, This could be trouble. Pyle got into Porter's truck and the two talked for 20 to 30 minutes. Pyle told Downs that Porter had told him he did not want any trouble. Downs testified that, the day of the shootings, Pyle told him Porter had come to his trailer at 2 a.m. to tell Pyle that he had had a nervous breakdown. legal sufficiency-Gillespie's murder

The standard for reviewing the legal sufficiency of the evidence is whether, viewing the evidence in the light most favorable to the jury's verdict, any rational trier of fact could have found beyond a reasonable doubt the essential elements of the offense charged. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Lane v. State, 933 S.W.2d 504, 507 (Tex. Crim. App. 1996). The same standard of review applies in both direct and circumstantial evidence cases. Herndon v. State, 787 S.W.2d 408, 409 (Tex. Crim. App. 1990).

A reviewing court does not disregard, realign or weigh the evidence. Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988). The jury is the exclusive judge of the credibility of the witnesses and of the weight to be given their testimony. Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991). The jury is free to accept or reject any or all of the evidence presented by either party. Beardsley v. State, 738 S.W.2d 681, 684 (Tex. Crim. App. 1987). Thus, reconciliation of conflicts in the evidence is solely a function of the trier of fact. Bowden v. State, 628 S.W.2d 782, 784 (Tex. Crim. App. 1982).

Gillespie's body was found kneeling against the bed, slumped forward over a chest. She had suffered a contact wound to the chest. A bullet hole was in the mattress behind her body and a bullet was recovered from the mattress. The sleeves of her blouse had powder burns from the discharging weapon. Dr. Bayardo testified that it was completely impossible that Gillespie was standing when she was shot. Rather, the evidence showed that she was on her knees when she was shot.

Additionally, Gillespie had a black eye and a laceration to the ear. Her injuries were consistent with being pistol whipped. She had been struck so violently that her skull was fractured and her brain bruised from ricocheting inside the skull.

Several witnesses testified that there was no evidence of a struggle between Pyle and Porter. The jury could have believed that Porter s assertions that Gillespie tried to intervene and was shot in the scuffle were not borne out by the physical evidence. Viewing the evidence in the light most favorable to the verdict, we find the jury could have rationally found the elements of the crime of capital murder. See Lane, 933 S.W.2d at 507. We overrule point four.

factual sufficiency-Gillespie and Pyle

In conducting a factual sufficiency review under Clewis, we consider all the evidence and set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996); Stone v. State, 823 S.W.2d 375, 381 (Tex. App. Austin 1992, pet. ref'd, untimely filed); Wilkerson v. State, 920 S.W.2d 404, 407 (Tex. App. Houston [1st Dist.] 1996, no pet.) (applying Clewis to self-defense).

Regarding Gillespie's death, Porter primarily bases his factual-sufficiency attack on his cross-examination of Bayardo. He argues that Bayardo conceded that many of Gillespie's injuries could have been sustained by two men wrestling over a pistol. In the context of all of the evidence, however, there was no evidence of the mortal combat which Porter asserts took place. The small bedroom was in order except for blood stains on the walls. The testimony of the officers was that Gillespie was on her knees in a defensive position with her arms crossed over her chest. Gillespie had suffered such a vicious blow to the skull that her brain had ricocheted and been bruised. Given the hypothetical that Gillespie was shot trying to intervene in a struggle between the men, Dr. Bayardo testified that it was completely impossible that she was standing when she was shot.

As to Pyle, Porter argues that the investigation was sloppy. He complains that much of Malone's testimony was sheer speculation and his conclusions make no sense. Porter argues that the fifth shot the chest shot could not have happened as the State says it did. Using trigonometric equations, Porter asserts that he would have either been standing on the bed or on the other side of the bed for the shot to have gone through the window behind Pyle.

Dr. Bayardo testified unequivocally, based on the autopsy results, that three of the five shots could not have been fired with Pyle holding the weapon. Rather, those shots were fired by someone else. Bayardo's testimony was not dependent on the various officers testimony of distances. Although Malone testified that all but one of the shots were from several feet away, Bayardo classified the shots as more than twelve to eighteen inches.

Considering all of the evidence, we do not find that the verdict is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Clewis, 922 S.W.2d at 129.

Likewise we do not find the jury's rejection of Porter's self-defense theory to be so contrary to the evidence that the conviction is clearly wrong and unjust. Hernandez v. State, 938 S.W.2d 503, 510 (Tex. App. Waco 1997, pet. ref'd).

We overrule point five.

COMMENT ON FAILURE TO TESTIFY

Porter s first point complains that the State impermissibly commented on his failure to testify in its closing argument. The State began its argument addressing its burden of proof. The prosecutor then began arguing the law of self-defense and its inapplicability to Porter's situation, saying that self-defense requires a voluntary act on the part of the defendant. Without objection, the State argued, You haven't heard that in this courtroom. There's no evidence in this record anywhere of a voluntary act from the defense.

The prosecutor continued the theme of a voluntary act as it applied to defense of property. The prosecutor emphasized that a person defending his property must be threaten[ed] or place[d] in danger of imminent bodily injury or death. The prosecutor continued, Have you heard any testimony, anywhere in this record, that the Defendant was in fear of imminent bodily injury or death? The answer is no. You haven't heard that. The court overruled Porter's objection that the State was commenting on his failure to testify.

The prosecutor continued:

[STATE]: You haven't heard that in this case at all. Now, when you get your Charge, look at paragraph nine, and I think this pretty much concisely sums up the State's position in this case as to self defense. It says you are further instructed, however, that if you believe from the evidence beyond a reasonable doubt that at the time and place in question, the deceased was not using or attempting to use unlawful force on the Defendant, and that the Defendant did not reasonably believe that deadly force when and to the degree used, if it was, was immediately necessary to protect himself against the use of or attempted use of unlawful deadly force, either real or apparent, as viewed from his standpoint alone, or when a reasonable person in the Defendant's position at that time would have retreated, then you will find against the Defendant on his plea of self defense. Then it goes on to say you consider all the relevant circumstances surrounding the parties to the killing, and so forth. Then it tells you in a criminal case, the law permits a defendant to testify on his own behalf, but he is not compelled to do so, and the fact that a defendant does not testify shall not be considered against him. You will not consider the fact that the Defendant did not testify as a circumstance against him. I urge you to follow that.

Any comments I make about evidence is what was heard in this courtroom from the witness stand, and when I tell you that you did not hear a witness tell you that the Defendant was ever in fear of imminent bodily injury or death, I tell you that's a fact because it didn't happen. You didn't hear it from that witness stand.

The court again overruled Porter's objection that the State was commenting on his failure to testify.

A defendant's failure to testify may not be alluded to or commented on by the State. Tex. Code Crim. Proc. Ann. art. 38.08 (Vernon 1979). For an argument to violate article 38.08, the language must have been manifestly intended or was of such character that the jury would naturally and necessarily take it to be a comment on the accused's failure to testify. Dickinson v. State, 685 S.W.2d 320, 323 (Tex. Crim. App. 1984). In applying this test, the facts and circumstances of each case must be analyzed to determine whether the language used was of such character. Jones v. State, 693 S.W.2d 406, 407 (Tex. Crim. App. 1985).

If evidence from any source raises a defensive theory, the court must charge the jury on that defensive theory. Gibson v. State, 726 S.W.2d 129, 132 (Tex. Crim. App. 1987). Once the defendant makes a prima facie showing of an affirmative defense, the burden of proof shifts to the State to prove beyond a reasonable doubt that the defense is not applicable. Tex. Penal Code Ann. 2.03 (Vernon 1994); Hernandez, 938 S.W.2d at 510.

Porter's self-defense theory came through the testimony of Yezak, who took his statement, and arguably through Beatrice Johnson, who spoke with him on the phone just after the shooting. Neither testified to Porter s fear during the situation. Porter's statement to Yezak was that Pyle held a gun on him while Gillespie ransacked the house, yet there was no physical evidence to support this assertion. The box of Gillespie's belongings remained neatly packed in a corner. Although Porter s defense was that he was locked in mortal combat with Pyle, Porter was unscathed in the struggle. His shirt was torn, but Pyle's shirt was still tucked in with his beeper clasped to his belt. Porter visited with neighbors, did yard work, and visited his common-law wife in Calvert between the time of the shooting and the time he called police.

The State's argument reminded the jury that they must find that Porter was in fear of imminent bodily injury or death to support his self-defense theory. After urging the jury not to consider Porter's failure to testify, the State argued that nothing from the witness stand supported that defensive theory. We believe, under the circumstances of this case, that the language used was not manifestly intended to comment on Porter's failure to testify. Dickinson, 685 S.W.2d at 323.

We overrule point one.

BATSON COMPLAINT

In his second point, Porter complains that the State used peremptory challenges in violation of Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986). After the strikes had been made, Porter identified five black venire panel members: Juror No. 8, Harold Dunn; Juror No. 10, Kenneth Carroll; Juror No. 20, Harry Munson; Juror No. 41, Fred Brown; and Juror No. 42, Cynthia Fuller. // Porter stated that the State had struck all of the black jurors. Porter also challenged the State's peremptory strikes of two Hispanic jurors Juror No. 17, Reuben Gonzales, and Juror No. 22, Uvaldo Castilleja.

The prosecutor offered his strike list into evidence and testified as to his strikes:

1. Juror Dunn was struck because he knew Porter by his nickname of Cowboy. The prosecutor stated that he struck all jurors within the strike zone who knew or knew of Porter.

2. Juror Carroll was struck because he did not answer the prosecutor's question about having witnessed a homicide. According to the prosecutor, Carroll indicated he would have a problem convicting without a live witness, then equivocated. He repeatedly did not understand questions. 3. Juror Munson was struck because he testified that he had had an unpleasant experience with law enforcement. He also indicated that he would want to hear testimony from the defendant. Further, Munson had been named as the alleged father of a child who had been removed from the home in a suit being prosecuted by the State.

4. The main reason Juror Brown was struck was because he knew Porter. The prosecutor also testified that he had been made aware that Brown could not read or write. A courthouse employee had completed Brown's jury questionnaire for him.

Porter responded that Juror Head, a white man, had not been struck although he indicated that he knew Porter. The prosecutor responded that Head was Juror No. 43 and that the State had exhausted the last of its eleven strikes on Juror No. 42. He stated that he would have struck Head if he had had any remaining strikes.

5. The prosecutor testified that he thought Juror Fuller would have been a good juror. However, she had a serious problem with only assessing life in a capital murder case. Because she testified that she would like more leeway in assessing punishment, the prosecutor stated that he feared she might find Porter not guilty, knowing that the only possible punishment for a capital murder conviction was life imprisonment.

6. Juror Gonzales was struck because he had a prior arrest. Further, he was not telling the truth when he stated that he did not know the prosecutor. The prosecutor stated that he had known Gonzales for some time.

7. Juror Castilleja was struck because his son was on probation and had been arrested the prior week for drug possession. The prosecutor testified that the son's car had been seized and that due to the pending criminal charges . . . I didn't want to have a loose cannon on the jury panel. The prosecutor also stated that Castilleja's mother had recently had a heart attack and that he had had problems with his job.

The court overruled the Batson objections. Because the court ruled on the ultimate question of intentional discrimination, we need not review the issue of whether the defendant established a prima facie case. Hill v. State, 827 S.W.2d 860, 865 (Tex. Crim. App. 1992). We review the record of the Batson hearing and the voir dire examination in the light most favorable to the trial court's ruling. Adanandus v. State, 866 S.W.2d 210, 223 (Tex. Crim. App. 1993). We will not disturb that ruling unless it is clearly erroneous. Id. Our review includes the racial makeup of the venire panel, the voir dire examination, the prosecutor s explanations, and any rebuttal and impeaching evidence. See Chambers v. State, 866 S.W.2d 9, 23 (Tex. Crim. App. 1993). Absent some evidence rebutting the State's race-neutral explanations, we will not disturb the court's finding that the State's explanations are legitimate. Id. at 25; Pondexter v. State, 942 S.W.2d 577, 581 (Tex. Crim. App. 1996).

The prosecutor stated his race-neutral reasons for making his peremptory strikes. Porter did not rebut those reasons. Having reviewed the record, we cannot say that the court's determination is clearly erroneous. Adanandus, 866 S.W.2d at 223. We overrule point two.

STALE CONVICTION

In his third point, Porter argues that the court erred in ruling that a prior murder conviction would be admissible if he testified. Porter was convicted of manslaughter in 1963. Prior to trial, he filed a motion to suppress the State's use of the conviction under Texas Rule of Criminal Evidence 609(b). Tex. R. Crim. Evid. 609(b). The State argued that the court was authorized to conduct a balancing test and had the discretion to admit the conviction. Id.

The credibility of a witness may be attacked with evidence of a conviction of a felony or crime involving moral turpitude if the probative value of the evidence outweighs its prejudicial effect to the party. Id. 609(a). Such convictions are not admissible if more than ten years have elapsed since the date of conviction or date of release unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect. Id. 609(b).

Circumstances to consider in allowing the stale conviction to be admitted include: the age of the accused, his conduct as reflecting non-reformation on his part, the nature of the accusation and facts of the current charge, and the length and severity of the penalty. Lucas v. State, 791 S.W.2d 35, 51 (Tex. Crim. App. 1989).

The State argued that Porter had an extensive criminal history of arrests between the conviction and the current charge. The State argued that, if Porter testified, it should be able to cross-examine him on the prior murder conviction concerning his violent nature and uncontrollable temper. Given that Porter was urging self-defense and defense of property and claiming that the death of Gillespie was accidental, the court did not abuse its discretion in denying the motion to suppress the prior conviction. We overrule point three.

UNCONSTITUTIONALITY OF ARTICLE 37.071

In his sixth point, Porter argues that the sentencing scheme to which he was subjected is unconstitutional to the extent it prevents the jury from considering mitigating circumstances when the State waives the death penalty in a capital case. He asserts that the automatic life sentence constitutes cruel and unusual punishment.

As of September 1, 1994, voluntary manslaughter is no longer a separate offense under the Penal Code. Act of June 19, 1993, 73rd Leg., R.S., ch. 900, 1.01, 1993 Tex. Gen. Laws 3589, 3617. It is now a punishment issue in a murder case. Tex. Penal Code Ann. 19.02(d) (Vernon 1994). Porter argues that the amendment, in conjunction with article 37.071, 1, of the Code of Criminal Procedure, deprives a capital murder defendant from ever relying on sudden passion to reduce his culpability. Id.; Tex. Code Crim. Proc. Ann. art. 37.071, 1 (Vernon Supp. 1997).

Under the capital murder scheme in Texas, a defendant may receive one of two punishments if convicted: death or life imprisonment. Tex. Penal Code Ann. 12.31 (Vernon 1994). Porter concedes that two courts of appeals have determined that article 37.071, 1, is not cruel and unusual punishment. Laird v. State, 933 S.W.2d 707, 714 (Tex. App. Houston [14th Dist.] 1996, pet ref'd); Prater v. State, 903 S.W.2d 57, 60 (Tex. App. Fort Worth 1995, no pet.).

We decline to hold article 37.071, 1, unconstitutional as assessing a cruel and unusual punishment. Id. We overrule point six.

EXTRANEOUS OFFENSES

In his seventh point, Porter argues that the court erred in admitting extraneous offenses, particularly without giving any limiting instructions. Porter objected to the State's proposed use of testimony to show that, at times prior to the shootings, Gillespie had been to a battered women's shelter and had sought medical attention for injuries inflicted by Porter. Tex. R. Crim. Evid. 404(b). The State offered the testimony under article 38.36 of the Code of Criminal Procedure as evidence of the previous relationship between Porter and Gillespie. Tex. Code Crim. Proc. Ann. art. 38.36 (Vernon Supp. 1997).

Rule 404(b) of the Rules of Criminal Evidence precludes evidence of extraneous acts unless used for some other purpose, such as to prove motive, opportunity, intent, preparation, plan, knowledge or identity. Tex. R. Crim. Evid. 404(b). However, Article 38.36 of the Code of Criminal Procedure, Evidence in Prosecution of Murder, provides in part:

(a) In all prosecutions for murder, the state or the defendant shall be permitted to offer testimony as to all relevant facts and circumstances surrounding the killing and the previous relationship existing between the accused and the deceased, together with all relevant facts and circumstances going to show the condition of the mind of the accused at the time of the offense.

Tex. Code Crim. Proc. Ann. art. 38.36(a) (Vernon Supp. 1997).

Before a court may properly admit evidence of an extraneous offense under article 38.36, it must find the evidence relevant to a material issue other than the defendant's character. Hernandez v. State, 914 S.W.2d 226, 232 (Tex. App. Waco 1996, no pet.). The material issues in a homicide case are determined by the theories of the prosecution and the defense. Id. In reviewing the court's determination of relevancy, we uphold the ruling absent an abuse of discretion. Montgomery v. State, 810 S.W.2d 372, 390-91 (Tex. Crim. App. 1990) (on rehearing). As long as the court's ruling is within the zone of reasonableness, we will not intercede. Id. at 391; Hernandez, 914 S.W.2d at 233.

The State charged Porter with intentionally causing the deaths of Gillespie and Pyle. Porter's defensive theory was that he was defending himself or his property. The evidence of Porter's prior assaults is relevant to the previous relationship existing between himself and Gillespie. Tex. Code Crim. Proc. Ann. art. 38.36(a). The evidence tends to make it more probable that it was Porter's conscious objective to cause the deaths. See Hernandez, 914 S.W.2d at 233. It tends to rebut his defensive theories. Id. Similar beatings with a rifle butt rebut Porter's defense that the apparent pistol whipping suffered by Gillespie had occurred accidentally in the midst of a struggle. The court did not abuse its discretion in determining that the prior assaults were relevant.

We next address whether the probative value of the extraneous acts is substantially outweighed by the danger of unfair prejudice. Tex. R. Crim. Evid. 403. Rule 403 favors admissibility of relevant evidence, and again, we must uphold the court's ruling absent an abuse of discretion. Hernandez, 914 S.W.2d at 233. Gillespie was dead and could not provide any testimony as to her prior relationship with Porter. See id. Without this evidence, the jury would have been left with a void regarding the prior relationship. Id. The court gave a limiting instruction in the charge on the prior relationship testimony.

For the reasons set forth above, we find that the court did not abuse its discretion in admitting the evidence. We overrule point seven.

IMPEACHMENT

In his eighth point, Porter asserts that the court erred in allowing the State to improperly impeach Beatrice Johnson. The State called Johnson as an adverse witness. She testified about the telephone calls she had received from Porter on the day of the shootings. When he called her around 5 p.m., he was loud and upset. He told her that [Gillespie] and her old man had come in on him, and he thought they both were dead. The phone call lasted less than a minute.

On cross-examination, Johnson testified that she told Porter to stay put until she arrived and not to leave because it would only make it worse if he left the house. Porter told her he was going to go somewhere and she told him, No, don't go anywhere. Just stay right there.

On re-direct examination, the State asked Johnson whether she believed Porter was going to run off. She answered, No. I didn't. The State then attempted to impeach Johnson with her prior statement given to Officer Bobby Mathis shortly after the police arrived on the crime scene. The court overruled Porter's Rule 612(a) objection. Tex. R. Crim. Evid. 612(a).

The State then asked Johnson if she had told the officers, I asked [Porter] if he had called the police, and [Porter] stated `No, I haven't. I am leaving. Johnson denied making the statement. She further denied making the statement, I then told [Porter] not to leave, don't run. I said just stay until I get there, and I will go with you to turn yourself in. The prosecutor then showed Johnson her written statement. Johnson agreed that she had signed the statement but denied that it accurately reflected what she had told officers.

Rule 612(a) provides that a party can be questioned about a prior inconsistent statement. Id. The witness must be told of the contents of the statement and the time and place and the person to whom the statement is made. Id. On re-direct, the State asked Johnson if she had made certain statements to the police. She denied the statements. We do not find improper impeachment. Id.; Andrews v. State, 794 S.W.2d 46, 49 (Tex. App. Texarkana 1990, pet. ref'd).

We overrule point eight.

LEADING WITNESSES

In his final point, Porter complains that the court erred in allowing the State to repeatedly lead its witnesses on direct examination. Porter acknowledges that cases are seldom reversed because the court allowed leading questions. Bell v. State, 313 S.W.2d 606, 609 (Tex. Crim. App. 1958). We have reviewed Porter's claim but cannot find that the leading questions require reversal. Tex. R. App. P. 81(b)(2). We overrule point nine.

Having overruled all of Porter's points, we affirm the judgment.

BILL VANCE

Justice

Before Chief Justice Davis,

Justice Cummings, and

Justice Vance

Affirmed

Opinion delivered and filed August 29, 1997

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