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Click here for the full text of this decision FACTS:In September 2003, a jury convicted appellant of capital murder. 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. Appellant claims that the trial court erred by sua sponte excusing a prospective juror over appellant’s objection that he was not given notice or an opportunity to address the venire person. The appellant cites Green v. State, 764 S.W.2d 242 (Tex. Crim. App. 1989), cert. denied, 507 U.S. 1020 (1993), and Goodman v. State, 701 S.W.2d 850 (Tex. Crim. App. 1985), which the court distinguishes. The trial court in this case specifically stated that it had excused the prospective juror under Article 35.03 because she had previously arranged travel plans. The postponement or cancellation of jury service because of a pre-existing scheduling conflict is a legitimate exercise of the trial court’s discretion under Article 35.03. The trial court properly determined that appellant was illegally arrested for violating Texas Penal Code �38.02 “Failure to Identify.” However, the trial court reasonably concluded that any evidence obtained after appellant requested to speak to the police officer was sufficiently attenuated from the illegal arrest as to be admissible. The appellant was first given his warnings when he was arrested. The appellant was again read his warnings prior to the officer’s interview. The officer also had him sign a warning form. The appellant again received his legal warnings at the beginning of the tape-recorded statement. The appellant’s request to speak to the officer was a product of his own free will and an intervening circumstance. Finally, the official misconduct was not purposeful or flagrant. The appellant asserts that the trial court should have granted his motion to quash the indictment because the death penalty is unconstitutional in that the determination to seek the death penalty is arbitrary and “overridden by the financial situation of individual counties.” This claim has previously been presented to this court. Although the court pointed out in Allen v. State, 108 S.W.3d 281 (Tex. Crim. App. 2003), cert. denied, 540 U.S. 1185 (2004), that the appellant failed to provide budgetary data, the appellant here has overestimated the significance of that statement. Because a prosecutor has discretion to seek or not to seek the death penalty in a given case, the amount of resources available, if a factor at all, is only one of numerous factors that may bear upon the exercise of a prosecutor’s discretion. The exercise of prosecutorial discretion in an individual case necessarily employs the consideration of various factors including but not limited t the facts of the case itself, the heinousness of the crime, whether the victim was defenseless, the location of the crime, the callousness of the execution, the particular defendant’s history, and the level of the defendant’s participation in the offense. Prosecutorial discretion does not violate the Eighth and 14th Amendments. Given the broad discretion that a prosecutor possesses when deciding whether to pursue the death penalty, appellant cannot show that the trial court abused its discretion in failing to quash the indictment and declare the death penalty unconstitutional. OPINION:Holcomb, J.; Keller, P.J., Meyers, Johnson, Keasler, Hervey and Cochran, J.J., joined. Price and Womack, J.J., concurred in the result.

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