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Click here for the full text of this decision FACTS:In February 2003, a jury convicted the appellant of a capital murder. The trial judge sentenced the appellant to death. The state indicted the appellant for causing the death of Lance Walker while in the course of committing or attempting to commit the offense of robbery. The appellant and his brother, Billy, went to Walker’s house, where they drank beer, smoked marijuana and played darts. At some point, the appellant picked up a shotgun and shot Walker. With his brother’s help, the appellant then took some items from the house, including money, guns and Walker’s truck. In a statement he later gave to police, the appellant admitted that he had told Billy on the way to Walker’s house that he had been thinking about “sticking someone up and taking their vehicle.” The appellant told police that he had planned to kill the person for the vehicle and that Billy agreed to help. HOLDING:Affirmed. The appellant asserts that the trial court erred in ruling that he failed to make a prima facie showing that the state had exercised its peremptory strikes with a discriminatory purpose against four venire members. None of the prosecutors’ explanations reflect an inherently discriminatory intent. The appellant attempted to rebut the state’s reasons with statistical calculations and a comparison with other jurors. In his comparative analyses, the appellant discussed the allegedly disparate treatment of venire members who shared only one isolated issue or view in common with a struck venire member. The appellant did not raise or discuss any disparate treatment of any venire member who shared a combination of reasons. The trial court found that the state’s explanations were race-neutral and not pretexts for racial strikes. The trial court’s findings are supported by the record and are not clearly erroneous. The appellant claims that the trial court erred in admitting gruesome, close-up photographs of the victim’s corpse. The photographs showed the location of the body at the crime scene and the wounds that caused the victim’s death. Therefore, the photographs were relevant during the guilt phase of the trial. The fact that the jury had also heard testimony regarding the injuries depicted does not necessarily reduce the relevance of the visual depiction, the court states. The appellant complains that a police officer’s testimony that the appellant’s brother Billy’s statement was consistent with the appellant’s own statement amounted to inadmissible hearsay. Assuming that the complained-of testimony was hearsay, and knowing that the statement referred to was the result of police interrogation, the admission of Billy’s actual statement would have violated the appellant’s confrontation rights. Billy’s statement was not introduced in this case. Nonetheless, the testimony in effect informed the jury of the general substance of Billy’s statement and how it related to the appellant’s statement, such that Billy’s statement was used against the appellant without giving him an opportunity to confront the declarant, Billy. Under these circumstances the appellant’s confrontation rights were arguably violated. The appellant claims that the testimony harmed him because the central issue to the case, if not the sole issue, was whether the appellant had formed the intent to steal Walker’s truck before he shot him. Because the theft of the truck was not necessary to prove capital murder, and because the jury could have inferred from this evidence that the appellant did form the intent to steal either before or contemporaneously with the murder, the appellant’s conviction for capital murder is supported regardless of the lack of any preformed intent to steal Walker’s truck. The court holds that the admission of the testimony did not materially affect the jury’s deliberations and was harmless beyond a reasonable doubt. The appellant asserts that the trial court erred in excluding testimony in mitigation of punishment “regarding a history of family sexual abuse of multiple generations of children in [the appellant's] family.” The fact that others in the appellant’s family were abused does not by itself make the appellant more or less morally culpable for the crime for which he was on trial. Nor does it, by itself, make a jury’s finding of mitigation any more or less probable than it would be without the evidence. Evidence that the appellant himself was sexually abused is relevant and probative when a jury is considering evidence in mitigation of the death penalty. However, the court states, the state made clear that, not only did it not object to this type of evidence, the substance of the relevant evidence came in through other witnesses. The court concludes that the trial court did not abuse its discretion in excluding the complained-of testimony. OPINION:Price, J., delivered the opinion of the court, in which Meyers, Womack, Johnson, Holcomb and Cochran, JJ., joined. Keller, PJ, concurred in the result. Hervey, J., filed a concurring opinion, in which Meyers and Keasler, JJ., joined. CONCURRENCE:Hervey, J. “As I understand it, appellant’s defense at trial was that he was not guilty of capital murder but was guilty only of murder, claiming he murdered the victim during an altercation and took his truck and other property merely as an after-thought. To this end, appellant, through his cross-examination of Sheriff’s deputy Prince, sought to establish that Prince fabricated a portion of appellant’s written statement to Prince where appellant claimed to have told his brother Billy that he planned to murder the victim for his vehicle. The prosecution rebutted this defensive theory on re-direct examination of Prince with Prince’s testimony that brother Billy gave the police an unfabricated statement that was”very consistent’ with appellant’s statement to Prince. This evidence, therefore, apparently was offered, not for the hearsay purpose of supporting the truth of the matter asserted in brother Billy’s statement, but for the non-hearsay purpose of proving that Prince did not fabricate the critical portion of appellant’s statement that he planned to murder the victim for his vehicle.”

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