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Click here for the full text of this decision FACTS:The defendant was charged with the murders of Esteban Herrera and Nilda Tirado in the same criminal transaction. Several witnesses testified to seeing the defendant and Herrera earlier in the evening. They witnessed that defendant and Herrera went to a bar together, that they drank heavily, smoked marijuana, and talked about trying to buy cocaine. Several people testified to seeing Herrera for the last time alive in the early morning hours of April 24, 1999, playing pool with the defendant in Herrera’s garage with the garage door open. Others testified to noticing that Herrera’s live-in girlfriend, Tirado, was home at the time. At approximately 6 a.m. on April 24, Herrera’s neighbor noticed Herrera’s garage door was closed. Smoke was coming from the house, and loud music was playing. The neighbor kicked open the side door of the garage when no one answered the front door. Herrera was lying face down in a pool of blood. He had been shot in the back of the neck. Inside, Tirado was found lying face down on the couch. She had been shot in the side of the neck with bullets that matched those fired into Herrera. Tirado’s body was badly burned it had been doused with a glue dissolver and gasoline, aerosol cans and paper soaked with flammable liquids were found in the living room. The fire was smoldering and had been confined to the living room. The bodies of the couple’s three children and stepchildren were found in the bedroom. They had not been burned but had died of asphyxiation from smoke inhalation, an autopsy later revealed. As part of the autopsy on Tirado’s body, sperm cells were found in her vagina, anal area and mouth. DNA analysis linked the sperm in Tirado’s mouth to the defendant. After learning that the defendant had been the last person seen with Herrera, he was picked up by police in the late afternoon of the 24th. The defendant first said that, though he had been with Herrera, Herrera had taken him home at 4 a.m. When asked if his story would change if he knew that his sperm was found on Tirado’s body, the defendant changed his story. This time he said that he had been having an affair with Tirado, that they had sex and oral sex in the bathroom before the defendant asked Herrera to take him home. In May 1999, the defendant was sent to prison for committing bank robberies. Michael Beckcom, a fellow inmate, testified at the defendant’s capital murder trial that the defendant told him that he killed Herrera, because Herrera had taken $250,000 from him. They argued the night Herrera was killed, and the defendant shot Herrera, because he thought Herrera was going to kill him. He killed Tirado, the defendant told Beckcom, after she came out into the garage. The defendant said he set the fire to cover his tracks, and that the children inside died of smoke inhalation. The defendant bragged to Beckcom, “Anybody that can go into a house and take out a whole family and get out without being seen is a bad mother fucker, and I’m that mother fucker.” Beckcom also said that the defendant told him Tirado and Herrera had an open relationship, and it was common knowledge that the defendant was having an affair with Tirado. The defendant said he had sold his gun to “some girl,” and that the two drops on his shoes that looked like blood were actually ketchup. Two of Tirado’s close friends testified that they had no knowledge of any affair between the defendant and Tirado. Instead, they both said Tirado had told them she didn’t like the defendant, and that he gave her “the creeps.” A male acquaintance said he did not believe Herrera and Tirado had an open relationship. Over the defendant’s objection, the state entered evidence of the children’s’ deaths, including crime scene photographs and autopsy photos. On the defendant’s behalf, three witnesses stated that the defendant’s mother brought a probable-cause affidavit to the defendant in prison, and that the defendant showed it to other inmates. The implication was that Beckcom’s testimony was based on what he saw in the affidavit, not on anything the defendant had allegedly told him. The defendant was convicted of capital murder for killing Herrera and Tirado in the same criminal transaction. He was sentenced to death. HOLDING:Affirmed. The court first addresses the legal sufficiency of the evidence, referring to evidence that the defendant was the last person seen with Herrera, that the defendant had a motive to kill Herrera, that the bullets recovered from Tirado and Herrera were fired from the same gun, that the defendant’s sperm was found in Tirado’s mouth, that a fire was set to destroy physical evidence, and that the defendant admitted to the murders to Beckcom. As to the defendant’s assertion that Beckcom’s testimony should be discounted because it came from the probable cause affidavit, the court points out that Beckcom’s testimony contained many details not included in the affidavit, and some of what Beckcom said actually contradicted or excluded some of the details in it. The fact that Tirado’s body had been set on fire tended to contradict the defendant’s assertion that the sexual encounter was consensual. Additionally, the jury could have rationally concluded that the fact that the defendant’s clothes and body were free of materials associated with the crime scene was simply because the defendant had ample time to dispose of any physical evidence. The evidence is legally sufficient, the court holds, and the same facts also support finding the evidence factually sufficient. The court then discusses several challenges related to evidence of the children’s deaths. First, the court concludes that the fact of their deaths was not an improperly admitted extraneous offense under Texas Rule of Evidence 404(b). The fact was entered to corroborate Beckcom’s testimony. It was also entered to corroborate the defendant’s own confession as contextual evidence of the same transaction, as the children’s bodies were part of the crime scene as the neighbors found it, and their deaths were a direct consequence of the fire set to destroy Tirado’s body. The court then concludes that the evidence of the children’s deaths was not improper under Rule 403, as the evidence had probative value to the contested issue of Beckcom’s credibility. Any emotional response from the jury about the children’s death could be connected to the defendant only if the jury first found that the defendant caused their parents’ deaths. The court rules that the crime-scene photographs of the children were properly admitted. The pictures showed the children covered with soot, but their bodies were not charred or mutilated. The danger of prejudice was small. Their probative value was to show the state of the crime scene when the neighbors and firefighters arrived and to corroborate Beckcom’s testimony. The court determines that the autopsy photos of the children, which showed dissections of their lungs and tracheas, were unfairly prejudicial, because the cause of the children’s deaths was not in dispute. The error, however, was harmless, as the photos were clinical depictions, they were not nearly as graphic as the properly admitted autopsy photos of Herrera and Tirado, were not unduly emphasized by the state and other properly admitted evidence related to the children’s deaths had already been entered. OPINION:Cathy Cochran, J., delivered the opinion of the court in which Meyers, Price, Womack, Johnson and Holcomb, JJ., joined. Keller, P.J., Keasler and Hervey, JJ., concurred.

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