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Click here for the full text of this decision FACTS:Donnie Lee Roberts Jr. lived with Vicki Bowen. Roberts was unemployed, often drank alcohol and used cocaine. Bowen worked as a dental assistant. On Oct. 15, 2003, Bowen went shopping with co-worker Brenda Bland, but she did not show up for work the next day. Because Bowen was a punctual person who always called if she was going to be late, Bland became concerned and went to Bowen’s house to check on her. When Bland arrived at the home, she found the front door open. After knocking and receiving no answer, Bland entered the home and found Bowen dead. Bland noticed that Bowen was still in the scrubs she had worn at work the previous day. The medical examiner would later determine that Bowen died from two gunshot wounds to the head. Police later determined that Bowen’s television and her son’s truck were missing. That same day, the police found Roberts after tracking down the stolen truck. It was later determined that Roberts had taken the truck, the television, Texans/Titans football tickets, jewelry, a Western Union money order, a .22-caliber rifle and a .22-caliber pistol. Roberts had sold the football tickets for $100. He then bought cocaine from Edwin Gary on Oct. 15, 2003, on three different occasions, the last of which involved trading the .22-caliber pistol. Roberts had apparently abandoned the .22-caliber rifle, later determined to be the murder weapon, a few blocks from where he was found. The Western Union money order was found in the residence at which Roberts had parked his truck, but police never recovered the television and the jewelry. Police interviewed Roberts, and he confessed to murdering Bowen. In that confession, he acknowledged that he had “a crack cocaine problem” and that he would go to bars, get drunk and then look for drugs. With regard to the victim’s death, Roberts said, “I pointed the gun at her and I said, ‘if you’d just give me some money.’ And she said ‘No.’ And then I said, ‘Look, it doesn’t have to be this way.’ . . . And the next thing I know, I shot her.” At trial, Roberts testified differently. He claimed that he picked up the .22-caliber rifle, because it was out of place, near the door. He also claimed that he saw what looked like a .22-caliber pistol in Bowen’s pocket and that she moved her hand to her pocket to reach for it. He claimed that he shot Bowen in self defense. Roberts claimed that he did not intend to rob Bowen at the time he shot her but did end up taking her property later. A jury convicted Roberts of capital murder. Pursuant to the jury’s answers to the special issues set forth in Texas Code of Criminal Procedure Art. 37.071, ��2(b) and 2(e), the trial judge sentenced Roberts to death. HOLDING:Affirmed. First, the court found that factually sufficient evidence supported Roberts’ conviction for the underlying offense of robbery. That Roberts believed that Bowen should have given him money as she did in the past, the court stated, did not absolve him of the intent to take money that he knew did not belong to him or of his threat and use of deadly force to accomplish that objective. Second, in the sentencing stage, Roberts argued that the trial court erred when it ordered the defense to turn over its investigator’s notes to the prosecution for cross-examination of the defense punishment-phase witnesses. But the court stated that since the record did not relate the content of the notes, it could not conduct a harm analysis and overruled the point of error. Roberts contended that the trial court erred in refusing to allow a defense expert to testify that Roberts’ use of alcohol and cocaine caused him to commit the crime. The trial court allowed Dr. Katherine McQueen to testify about the correlation between alcohol and cocaine usage and violence. But the court concluded that the trial court did not err when it prevented McQueen from taking the extra step of opining “whether alcohol and drug dependence was related to appellant’s violent conduct.” The court then upheld the trial court’s decision to allow several victim impact statements to be made, including a statement from a victim of an extraneous crime. Next, Roberts contended that the trial court erred when it refused to permit testimony regarding the effect a sentence of death would have on Roberts’ family while at the same time permitting testimony about how the victim’s death affected her family. But the court found that Roberts waived any error by failing to make an offer of proof. Finally, Roberts argued that the trial court’s jury instructions unconstitutionally narrowed the definition of mitigating evidence to that evidence which reduces the defendant’s moral blameworthiness. In addition, Roberts contended that the trial court erred in refusing to include in the charge his requested instruction defining mitigating evidence more broadly. But the court overruled the two points of error, finding that Roberts did not explain how the jury instructions prevented the jury from giving effect to any of his alleged mitigating evidence. OPINION:Keller, P.J., delivered the opinion of the court in which Womack, Keasler, Hervey, Holcomb, and Cochran, J.J., joined. DISSENT:Meyers, J., filed a dissenting opinion in which Price and Johnson, J.J., joined. “[T]his testimony regarding the impact of an extraneous offense was unfairly prejudicial and was not relevant to the special issues. Because it was not relevant to the sentence, the testimony was inadmissible under Rule of Evidence 402. And, unless we can determine beyond a reasonable doubt that the testimony did not contribute to the death sentence, we cannot say that the presentation of this inadmissible testimony was harmless. Therefore, I respectfully dissent.”

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