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Click here for the full text of this decision FACTS:Around 4 a.m. on May 11, 2003, Gerald Edward Marshall (appellant), Ronald Worthy and Kenny Calliham were involved in a robbery at a Whataburger restaurant during which a mentally retarded Whataburger employee was shot at close range through the left eye and killed. The Whataburger drive-through window was open, but the doors to the Whataburger were locked. The police were unable to enter the Whataburger through these doors when they responded to a robbery in progress call. The evidence shows that Marshall, Worthy and Calliham pulled up to the Whataburger drive-through window in a car driven by Calliham. The car belonged to the boyfriend of Marshall’s sister Julia. One of the car’s occupants entered the Whataburger through the drive-through window armed with a pistol. A Whataburger employee known as Marsh saw this armed assailant exit the back seat of the car and come through the drive-through window. Marsh hid behind some boxes in a storeroom where he could see and hear. Marsh testified that the victim ran out the back door and slammed it against the assailant who was chasing him. Marsh heard the assailant hit the door several times while the victim attempted to keep it shut from the outside. Marsh also heard the assailant tell the victim to open the door. Marsh heard the back door open. Marsh testified that the assailant and the victim went out the back door which then shut and locked. Marsh did not hear anything for about two minutes. Marsh then heard the same assailant inside the Whataburger close to the back door tell the victim three times that he would kill him if the victim did not produce the key to the safe. Marsh heard the victim tell the assailant twice that he did not have the key to the safe. Marsh testified that the assailant shot the victim just after the assailant threatened him the third time. Marsh also testified that he never heard or saw a second assailant inside the Whataburger and that the person who shot the victim was the same person he saw come through the window. Another Whataburger employee known as Ketchum hid in a freezer when he saw the assailant enter the Whataburger through the drive-through window. Ketchum testified that the assailant had a silver gun. Marshall’s girlfriend testified that she saw appellant with a silver gun about three hours after the victim’s murder. The police believed that the robbery was an inside job also involving the Whataburger night manager known as Love, who knew appellant from having worked with him at another fast-food restaurant. Marshall told his girlfriend shortly before the offense that he planned to rob some Whataburgers, and the girlfriend saw appellant with a napkin that had Love’s first name and phone number written on it. The day after the offense, the police received a Crimestoppers tip that two persons nicknamed “Bo” and “Tank” were involved in the offense and that “Bo” was the shooter. The police investigation revealed that Marshall went by the nickname of “Tank.” The police eventually arrested appellant, Worthy, Calliham and Love and charged them all with capital murder. The police recovered the car that was used in the offense at the home of Marshall’s aunt. At trial, Marsh identified Marshall as the one he saw come through the Whataburger drive-through window. Calliham claimed at trial that he was unaware of any planned robbery until appellant went inside the Whataburger through the drive-through window with a silver pistol in his hand. Calliham also testified that he made a deal with the state to plead no contest to an aggravated robbery charge with no adjudication and receive 10 years probation in exchange for his testimony. A county jail inmate testified that in August 2003 appellant told him that he was the one who shot the victim. That inmate was facing 25 years to life on pending charges. He made a deal with the state for a year in the county jail on these charges in exchange for his testimony. HOLDING:Affirmed. Marshall challenged his guilty verdict on factual sufficiency grounds but not legal sufficiency grounds. The Court of Criminal Appeals (CCA) found the evidence factually sufficient to support Marshall’s conviction. Marshall, the CCA stated, also claimed that Texas Code of Criminal Procedure Art. 37.071 is unconstitutional under Apprendi v. New Jersey, 530 U.S. 466 (2000), because Art. 37.071 does not require the state to prove insufficient mitigating circumstances beyond a reasonable doubt. In addition, Marshall claimed that Art. 37.071 is unconstitutional, because it places the burden on the defense to prove that there are mitigating circumstances to warrant a sentence less than death. Citing prior case law, the court overruled the two points off error. In points of error four and five, Marshall claimed that the trial court erroneously admitted into evidence his second statement to the police, because there was no valid waiver of his right to remain silent, and because it was made in response to a false promise that appellant would be charged only with aggravated robbery. Under the circumstances of this case where Marshall re-initiated contact with the police to tell his side of the story, the CCA held that the trial court could reasonably have found that any invocation by appellant of his right to remain silent was ambiguous thereby permitting police to continue questioning in regard to the offense. In point of error six, appellant claims that the trial court erroneously denied his motion for a mistrial when the jury heard extraneous offense evidence at the guilt phase of trial. His girlfriend testified at the guilt phase that she and appellant started “disagreeing” when appellant told her “that he was going to start robbing.” Assuming that the girlfriend’s complained-of testimony about appellant’s plan “to start robbing” was a reference to an extraneous offense, the trial court’s instruction to disregard was sufficient to cure any harm or prejudice from this event. The CCA went on to overrule several other points of error brought by Marshall on miscellaneous constitutional and procedural grounds, including claims for violations of Brady and Crawford, and complaints over the trial court’s admission of and failure to admit various evidence. OPINION:Hervey, J., delivered the opinion of a unanimous court.

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