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Click here for the full text of this decision FACTS:Appellant was convicted of a capital murder committed on January 27, 2001. Pursuant to the jury’s answers to the special issues set forth in Texas Code of Criminal Procedure, Article 37.071, 2(b) and 2(e), the trial judge sentenced appellant to death. HOLDING:Affirmed. After the victim was murdered, appellant drove the victim’s car to Georgia. He left that car with relatives and continued on to Florida, where he was arrested after stealing another car. In the meantime, appellant’s nephew was arrested for possession of cocaine left by appellant in the victim’s car. The appellant complains about the admission into evidence of a tape-recorded confession taken from him by a Texas police officer while appellant was in custody in Florida. The police officer’s statements simply indicated that he was willing to pass along any information the defendant wanted to convey. No positive promise was made. The evidence suggests that appellant initiated the discussion regarding helping his nephew. The appellant contends that the trial court had no discretion to disbelieve appellant’s testimony about requesting counsel before the magistrate, because the state never controverted that testimony. But the trial court has discretion to disbelieve testimony even if it is not controverted. The appellant contends that the trial court erred in refusing to submit his requested instruction regarding the lesser-included offense of criminally negligent homicide. At trial, appellant testified that he met the victim at a “hustler bar,” went home with him, and engaged in consensual sexual conduct with him. According to appellant, the victim requested that appellant perform a “sleeper hold” to enhance the quality of the victim’s sexual experience. Although the “sleeper hold” resulted in the victim’s death, appellant testified that this result was unintended. Assuming without deciding that appellant was entitled to the requested instruction, the court finds any error to be harmless. The jury was instructed on the lesser-included offense of manslaughter. The jury’s failure to find an intervening lesser-included offense � one that is between the requested lesser offense and the offense charged � may, in appropriate circumstances, render a failure to submit the requested lesser offense harmless. The appellant argues that, given the obvious threat he poses, prison officials would place him in lockdown to protect guards and other inmates from him. In addition, the appellant argues that the parole authorities would never parole such a dangerous person. He concludes that he does not in fact constitute a future danger, because the authorities will act to neutralize his ability to threaten others. Appellant’s argument appears to be that he is so dangerous that he is not dangerous. “His contention is ingenious but unpersuasive. If accepted, it would stand the capital punishment scheme on its head, giving relief to the most dangerous offenders. We will not speculate, for legal sufficiency purposes, about the effectiveness of the prison and parole authorities’ methods of protecting society from those who are intent on committing future criminal acts of violence.” The appellant argues that, in civil cases, the final argument falls on the shoulders of whoever has the burden of proof. Texas Code of Criminal Procedure Article 36.07, not the civil rules, applies to criminal cases. The appellant contends that the future dangerousness issue is unconstitutional, because the issue is not susceptible to proof beyond a reasonable doubt and cannot be applied fairly by the jury. The appellant also contends that his Eighth Amendment right to be free from cruel and unusual punishment was violated by the trial court’s refusal to inform the jurors that a failure to arrive at a unanimous verdict in favor of the state on the punishment issues would result in a life sentence. The court rejects these arguments. OPINION:Sharon Keller, P.J., delivered the court’s opinion.

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