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Click here for the full text of this decision FACTS: Appellant was convicted in February 2002 of capital murder. Pursuant to the jury’s answers to the punishment special issues, the trial judge sentenced appellant to death. HOLDING: Affirmed. The only proof contrary to the verdict that the appellant points to is his suggestion that Murray Bamberg, the appellant’s half-brother, committed the crime. But, the evidence linking Bamberg to the crime is rather weak. Although Bamberg also had access to the murder weapon, his fingerprints were not on it. And while Bamberg’s DNA might be similar to appellant’s (although there was no evidence of that), he is only a half-brother and so half of his DNA would be from a different source. Moreover, Bamberg was not linked to the victim’s jacket or ring, and he did not confess to a third party. The evidence was factually sufficient. The appellant complains that Richard Ray Broome’s (who was in the county jail awaiting parole revocation proceedings) testimony violated his Sixth Amendment right to counsel because Broome was a state agent who deliberately elicited appellant’s incriminating statements. Viewed with the proper deference to the trial court’s ruling, the evidence in this case shows that Broome was an entrepreneur who exploited appellant for his own gain. The government did nothing to encourage Broome’s behavior but merely accepted the information Broome had to offer. The court concludes that these circumstances are not enough to give rise to an agency relationship, and therefore, Broome was not an agent of the government when he elicited appellant’s incriminating statements. The appellant contends that the state improperly impeached him with evidence of extraneous, unadjudicated offenses. Appellant testified at the guilt phase of trial. During direct examination, appellant admitted that he had been convicted of several robberies in New York. On cross-examination, he also admitted that he had been charged with more robberies than the ones he pled guilty to. The testimony showed that in 1992 appellant was indicted for fifteen counts of robbery in the Bronx, but he pled guilty to only two counts. Appellant admitted to robbing about ten people. Appellant’s complaint on appeal is that the state impeached him not only with his convictions but also with the other offenses for which he was charged. Appellant contends that he attempted to prevent this allegedly improper impeachment in a hearing outside the presence of the jury. The record reveals that defense counsel raised no objection to the state’s proposed line of questioning during the hearing. And because appellant also raised no objection during the subsequent cross-examination, he has failed to preserve error. The appellant contends that the trial court erred in allowing the state to impeach his testimony with an illegally obtained videotaped statement. Although appellant did not testify in his direct examination about his nonverbal conduct during the videotaped interview, he did testify about statements he made during that interview. This testimony was designed to convey the impression of forthrightness in his interview with the police and in his testimony at trial. Appellant’s conduct during the interview was relevant to rebut that impression. Even if it had not been relevant, however, no objection was made to the state’s line of questioning. Because appellant denied committing the conduct, the state was permitted to offer the videotape evidence under the impeachment exception to the exclusionary rule. The court finds that the evidence was legally sufficient to show a probability that appellant would commit criminal acts of violence constituting a continuing threat to society. The appellant contends that the evidence was factually insufficient to support the jury’s answer to the future dangerousness special issue. The court does not conduct a factual sufficiency review of this special issue. OPINION: Keller, P.J., delivered the opinion of the court in which Meyers, Price, Holcomb and Cochran, JJ., joined. Womack, Johnson, Keasler and Hervey, JJ., concurred in the result.

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