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Click here for the full text of this decision FACTS:Clayton Edward Davis, Jr., appeals his conviction for the murder of a city of Beaumont police officer. After sexually assaulting a woman and beating her father with a bat, the appellant broke the window of an ambulance that was responding to the woman’s 911 call. About the same time, police officers arrived at the end of the street. Sally Valadez and Conrad Gernale were in one police car and Otis Butler arrived in a second car. Valadez and Gernale found the woman’s father and walked towards the ambulance to get assistance for him. The appellant got in a truck, headed in the direction of the police officers and accelerated. Valadez and the two paramedics testified the driver swerved off the road and struck Gernale, killing him. The appellant then turned back toward the ambulance approximately 100 feet away. The Suburban struck the ambulance before coming to rest. The primary issue at trial was appellant’s intent at the time he struck Gernale and the ambulance. There was evidence appellant’s behavior was affected at that time by intoxication from a combination of marijuana and testosterone anabolic steroid. The jury charge authorized any of ten verdicts. The possible verdicts included three listing alternative means of committing capital murder, two of murder, three means of manslaughter, criminally negligent homicide, and acquittal. The jury found appellant guilty of murder. Punishment was assessed at life imprisonment and a $10,000 fine in conformity with the jury’s punishment verdict. HOLDING:Affirmed. The appellant argues that reversible error is shown through the cumulative effect of misstatements of the law during voir dire. Many of the instances of misstatements of the law appellant cites in his brief also concern aspects of the special issues applicable to the punishment phase of trial of a death penalty case. Because appellant was not convicted of capital murder, the jury was never instructed by the court on those issues or called upon to answer them. No harm appears from any limitation the court may have imposed on appellant’s voir dire concerning the mitigation special issue. Of the remaining instances cited by appellant, three occurred during voir dire of individual venire members. Appellant complains that a prosecution objection denigrated his presumption of innocence to one venire member. In response to a statement of defense counsel that: “Right now he’s innocent of capital murder. The judge will tell you that, I’ll tell you that and the State needs to tell you that,” the trial court sustained the state’s objection to “the terminology that counsel has used that he enjoys a legal presumption of innocence.” Appellant also argues the prosecutor’s comment to another member of the venire during her individual voir dire that she “may not have to [take the jury oath]” and his question asking if the member could take the oath given her personal feelings about the death penalty improperly implied that jurors have a choice as to whether to take the oath. The trial court overruled appellant’s objection to the comment and question. Appellant further complains about the trial court’s sustaining the state’s objection to defense counsel referring to the prosecution as “ the government” during individual voir dire of a third venire member. The final instance cited by appellant was an objection, during general voir dire, to defense counsel’s statement to the venire that members of a jury have “an absolute right to your own vote according to your conscience.” The state objected on the basis that was not a correct statement of the law because “[t]hey have to vote according to the facts and the law and obey the law.” The trial court sustained the objection and directed counsel to rephrase the statement. Defense counsel responded, “I’m going to move on,” and proceeded with a discussion of the burden of proof. “Taken individually or collectively,” the court states, “we fail to see how these claimed misstatements of law prevented the intelligent exercise of appellant’s peremptory challenges.” Appellant’s second and third issues concern voir dire examination of the same venire member, Shirley Deane. The record establishes that Deane vacillated on her ability to distinguish between the determination of guilt and the special issues in capital sentencing. She did not so clearly demonstrate an unwillingness or inability to follow the law as instructed as to permit the court to second-guess the trial court’s finding that she could do so. Even considering the state’s voir dire that appellant finds objectionable, no clear abuse of the trial court’s discretion is evident in its overruling appellant’s challenge for cause. The appellant assigns error to the trial court’s failure to exclude or limit the number of uniformed officers in the courtroom during trial. The appellant also complains of the trial court’s permitting members of the gallery to wear “victim medallions” bearing a photograph of officer Gernale. As in Howard v. State, 941 S.W.2d 102 (Tex.Crim.App. 1996), the non-police spectators significantly outnumbered officers and there is no evidence or allegation the officers “gravitated” toward the jury. Moreover, there is nothing in the record to support appellant’s statements that the prosecution had a role in the presence of officers during trial. The record is similar to that in Nguyen v. State, 977 S.W.2d 450 (Tex.App. Austin 1998), aff’d, 1 S.W.3d 694 (Tex.Crim.App. 1999). It does not show how many spectators wore the medallions, where they sat or the size of the medallions. There is no evidence indicating whether any juror saw any of the medallions. The court finds no support in the record for appellant’s claim they were “theatrically placed,” or that the prosecution had any role in their conduct. The record is insufficient to establish actual or inherent prejudice from the wearing of victim medallions by spectators, or to show the trial court abused its discretion in overruling appellant’s objection. The appellant argues that the trial court erred by allowing a witness, paramedic William Green, to speculate on appellant’s mental state. The state’s question asking whether the driver’s swerve “appear[ed] to be a deliberate action” called for a response based on Green’s observation of the vehicle’s movements. The trial court reasonably could have concluded that the question was not an attempt to communicate appellant’s actual subjective mental state but instead asked for an opinion or inference drawn from Green’s objective perception of the events, and that such an opinion or inference is one that a reasonable person could draw under the circumstances. The testimony thus met the perception requirement under Texas Rule of Evidence 701. Because the term “swerved” could be taken to describe a movement which was uncontrolled or one that was deliberate, the challenged question also was helpful both to an understanding of Green’s testimony and to the jury’s determination of the fact issue of the driver’s intent. The trial court acted within its discretion to permit the question. That the question may have encompassed an ultimate issue to be decided by the jury did not make it objectionable, under Rule of Evidence 704. The appellant assigns error to denial of a jury view. The record indicates that sometime after beginning deliberations on guilt-innocence, the jury sent a note requesting to view the scene of the offense. The appellant argued in favor of granting the request. The trial court denied the request, returning an instruction to the jury to continue deliberations. None of the factors listed in Mauricio v. State, 153 S.W.3d 389 (Tex.Crim.App. 2005), support a conclusion the trial court abused its discretion here. The appellant challenges the inclusion in the charge of an instruction that voluntary intoxication is not a defense to commission of a crime. He contends the instruction was error because the evidence showed he was “under the influence of intoxicants that rendered him incapable of intentional or knowing conduct, but instead he was guilty of intoxication manslaughter.” At trial defense counsel argued to the jury the evidence of appellant’s intoxication “tells you that intentionally and knowingly is gone.” The challenged instruction tracks the language of Penal Code �8.04(a). The appellant cites no authority holding that an instruction under �8.04(a) may not be given when the jury also is charged that it may find the defendant guilty of intoxication manslaughter as a lesser included offense. The court cannot agree the challenged instruction prevented the jury from finding appellant guilty of intoxication manslaughter if it found the state failed to prove beyond a reasonable doubt that appellant intended to cause the officer’s death. As the court in Jaynes v. State, 673 S.W.2d 198 (Tex.Crim.App. 1984), overruled in part, Chauncey v. State, 877 S.W.2d 305, 309 n.8 (Tex.Crim.App. 1994) noted, the jury was free to find the defendant lacked the culpable mental state required for guilt, “as long as they did not attribute that lack . . . to intoxication.” OPINION:Campbell, J.; Quinn, C.J.,, Campbell and Hancock, J.J.

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