LAWYER v. STATE (2026)

OPINION

In April 2024, a Tarrant County jury convicted Appellant Paige Terrell Lawyer of capital murder for killing O'Tishae Womack and her ten-year-old daughter K.R.W. during the same criminal transaction. See Tex. Penal Code § 19.03(a)(7)(A). Based on the jury's answers to the punishment phase special issues, the trial court sentenced Appellant to death. See Art. 37.071, §§ 2(b), (g), and (e).¹ Direct appeal to this Court is automatic. See Art. 37.071, § 2(h).

Appellant raises six points of error, and we address them in the order that would afford him the greatest relief if he were to prevail. See Williams v. State, 707 S.W.3d 233, 237 n.4 (Tex. Crim. App. 2024). We affirm the trial court's judgment of conviction and sentence of death.

I. OVERVIEW

O'Tishae Womack (“Womack”) and Appellant were in an on-and-off, intimate relationship that was rife with violence. Beginning in 2016, he assaulted her several times, and by the time he committed capital murder, he was under indictment for two felony assaults committed in May 2017—one memorialized on surveillance video—and facing a motion to adjudicate guilt for a misdemeanor assault on a family member. He was jailed for those charges from June 2017 until he posted bond in February 2018—“the worst time in his life”—and he blamed Womack because she had pressed charges against him. He believed she “was trying to get [him] some time.”

One week before his scheduled adjudication hearing, Appellant beat Womack over the head and strangled her to death in the Fort Worth apartment that he had previously shared with her and where she lived with her three young children. He left her lying on the kitchen floor, naked from the waist down, with a plastic bag tied over her head. He also strangled K.R.W. to death in her bed.²

Appellant tried to clean the crime scene, but he left Womack's blood on a bleach bottle and his fingerprint in K.R.W.’s blood on a mop handle. He soon gave up cleaning and fled to his uncle's house in Tennessee. He confessed the murders to his uncle and admitted that he had considered dismembering the bodies with a chainsaw but decided against it because it would have been too noisy. Shocked, his uncle surreptitiously called law enforcement. An armed response team arrested Appellant the next day pursuant to a warrant, catching him as he was trying to escape out a back window of his uncle's house.

At the punishment phase, the State presented evidence that Appellant not only strangled K.R.W. to death but (1) he also brutally sexually assaulted her, tearing her perineum, vagina, and hymen; (2) he behaved badly in jail while awaiting his capital trial; and (3) after the jury convicted him of capital murder, he expressed anger at his attorneys and a desire to hurt them. In addition, as the punishment phase was to about begin, Appellant became so disruptive that the judge excused the jury and suspended further proceedings for the day.

II. VALIDITY OF THE INDICTMENT

In point of error six, Appellant alleges that the trial court “erred in failing to grant [his] Motion in Arrest of Judgment because [his] conviction was based upon an indictment which was invalid because it had not been signed officially by the foreperson of the grand jury.” He did not raise this objection to the indictment before trial.

A. Background

Appellant was originally indicted in May 2018 on one count of capital murder. The 2018 indictment, signed by the “Foreman of the Grand Jury,” charged Appellant with intentionally and knowingly causing the deaths of Womack and K.R.W. in the same criminal transaction. See Tex. Penal Code § 19.03(a)(7)(A). In February 2020, the State reindicted Appellant on three counts of capital murder. That indictment was signed by the “Assistant Foreman of the Grand Jury[.]” Count I alleged the original charge of capital murder under a multiple-murder theory, and trial was had on that count only.

After sentencing, Appellant timely filed a motion in arrest of judgment. See Tex. R. App. P. 22.3. The motion claimed that the 2020 indictment was “subject to an exception on substantive grounds” because it “was not signed officially by the [grand jury] foreperson” as Article 21.02(9) requires. See Art. 21.02(9) (explaining that an indictment's form shall be seen as sufficient if, among other things, the indictment is “signed officially by the foreperson of the grand jury”) (emphasis added). The motion was denied by operation of law. See Tex. R. App. P. 22.4(b).

B. Appellant's Argument on Appeal

Citing Rule of Appellate Procedure 22.2, Appellant argues that “[a] motion in arrest of judgment must be granted upon any ground which would establish that an indictment or information suffers from a substantial defect.” Appellant concedes that “the insufficiency of an indictment ․ is a proper matter for a motion to quash and according to [Article 1.14(b)] must be raised before trial.” But he argues that Article 1.14(b) is “[seemingly] facially contradicted by” Rule of Appellate Procedure 22.2(a), which “state[s] that a motion in arrest of judgment can be granted on the ground ‘that the indictment or information is subject to an exception on substantive grounds.’ ” He asserts that “[t]here appears to be no binding authority for [Article 1.14(b)] as being a prerequisite to a challenge by a Motion to Arrest Judgment.”

C. Analysis

Appellant “waive[d] and forfeit[ed]” any appellate challenge to alleged deficiencies of form or substance in the 2020 indictment by failing to object before trial. Article 1.14(b) states:

If the defendant does not object to a defect, error, or irregularity of form or substance in an indictment or information before the date on which the trial on the merits commences, he waives and forfeits the right to object to the defect, error, or irregularity and he may not raise the objection on appeal or in any other postconviction proceeding.

Art. 1.14(b). “Texas law now requires the defendant to object to any error in the indictment before the day of trial and certainly before the jury is empaneled.” Teal v. State, 230 S.W.3d 172, 177 (Tex. Crim. App. 2007).

Moreover, his argument on appeal differs from the one he made in the trial court. Cf. Rezac v. State, 782 S.W.2d 869, 871 (Tex. Crim. App. 1990) (stating that because the trial judge did not have the opportunity to rule on a motion based on a theory that the appellant later raised on appeal, nothing was presented for appellate review). Appellant's motion did not mention Article 1.14(b), much less argue that Rule 22 took precedence over it.

Additionally, his argument lacks merit because the “Rules of Appellate Procedure ․ [cannot] trump legislatively fashioned rules of error preservation.” Rushing v. State, 85 S.W.3d 283, 286 (Tex. Crim. App. 2002); see also Tex. Gov’t Code § 22.108(a) (stating that we may not use our legislatively granted rulemaking power to abridge, enlarge, or modify the substantive rights of a litigant). We are bound to follow Article 1.14(b).

We overrule point of error six.

III. MOTION TO SUPPRESS

In point of error two, Appellant claims that the trial court erred in denying his pretrial motion to suppress evidence. His motion challenged four warrants and advanced various theories in support of suppression. On appeal, however, he challenges only the trial court's decision about “Warrant 1” which authorized the search of Womack's apartment, and his only complaint is that the affidavit omitted information. Accordingly, he has abandoned his challenges to the other three warrants and all other bases for suppression of evidence obtained under Warrant 1. See McClure v. State, 648 S.W.2d 667, 677 (Tex. Crim. App. 1983) (noting, “Just as error at trial may be waived by failure to object, on appeal error may be abandoned by failure to assert it in the brief.”).

Appellant complains that the affidavit failed to mention that Detective Ernie Pate, the lead investigator, and Detective Thomas O'Brien, the affiant, briefly entered the crime scene after the first responding patrol officers completed their protective sweep of the apartment but before Warrant 1 issued. Appellant contends that this omission resulted in a Fourth Amendment violation. He does not assert his standing to make the claim, nor does the State challenge his standing, so we address the claim's other merits. See Byrd v. United States, 584 U.S. 395, 411, 138 S.Ct. 1518, 200 L.Ed.2d 805 (2018) (noting that standing “need not be addressed before” other “merits of a Fourth Amendment claim.”); see also Kothe v. State, 152 S.W.3d 54, 60 (Tex. Crim. App. 2004) (noting that an appellate court may address standing on its own initiative or forgo it if the State has not challenged it).

Appellant's motion invoked Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). On appeal, however, he acknowledges,

Under Franks and [Diaz v. State, 632 S.W.3d 889 (Tex. Crim. App. 2021),] the [F]ourth [A]mendment violation here by omission was not ‘material.’ The omitted information was unnecessary for the finding of probable cause and there was no causal link between the evidence obtained illegally and its acquisition from an independent source.

Yet Appellant maintains that the trial court erred in denying his motion to suppress evidence obtained via Warrant 1.

A. Warrant 1

The pertinent part of O'Brien’s affidavit for Warrant 1 stated the following:

5. AFFIANT HAS PROBABLE CAUSE FOR SAID BELIEF BY REASON OF THE FOLLOWING FACTS AND INFORMATION:

On April 6, 2018 at approximately [12:34] hours Fort Worth Police Patrol Officer B. Smith #3845 was dispatched to 228 Shady Lane Dr[.], Apartment #228, Fort Worth, Tarrant County, Texas in reference to two deceased females inside the apartment. Upon arrival Officer Smith learned the following information[:]

• Witness, Lashundra[la] Womack, called after she found who she believed was her sister and niece deceased inside the apartment.

• The deceased females are tentatively identified as O’[T]ishae Womack and [K.R.W.]

• During the protective sweep of the apartment[,] officers observed the deceased black female in the kitchen with a white bag around her head with what appeared to be blood around her head area; and a deceased black female juvenile, found upstairs with blood coming out of her mouth, who were both pronounced deceased by Medstar personnel.

• The cause of death was not immediately apparent [to the] responding officers.

Homicide Detective E. Pate was contacted by Fort Worth Police Communications and made the scene to assume control of the investigation.

It is the belief of your affiant that the apartment home, located at 228 Shady Lane Dr[.], Apartment #228 contains evidence of the offense of murder to include, but not limited to firearms, ammunition, projectiles, anything used to strangle or suffocate the deceased[,] and clothing.

WHEREFORE, affiant asks for issuance of a warrant that will authorize him to search said suspected place and premises for said property and seize the same.

B. Probable Cause

“Probable cause exists when, under the totality of the circumstances, there is a ‘fair probability’ that contraband or evidence of a crime will be found at the specified location.” Rodriguez v. State, 232 S.W.3d 55, 60 (Tex. Crim. App. 2007). The magistrate must “make a practical, common-sense decision” about probable cause, and the reviewing court must “ensure that the magistrate had a ‘substantial basis for ․ concluding that probable cause existed.” Illinois v. Gates, 462 U.S. 213, 238-39, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983).

Franks recognized that an affirmative misrepresentation made with knowing, intentional, or reckless disregard for the truth and necessary for establishing probable cause may invalidate a warrant under the Fourth Amendment. Massey v. State, 933 S.W.2d 141, 146 (Tex. Crim. App. 1996). The defendant must show by a preponderance that a material misstatement was made with culpable disregard for the truth. Diaz, 632 S.W.3d at 892. “Such statements must be purged from the affidavit, and then it is up to the reviewing judge to determine whether probable cause exists absent the excised statements.” Hyland v. State, 574 S.W.3d 904, 911 (Tex. Crim. App. 2019). A search warrant based in part on tainted information remains valid if it could have been issued based on the remainder of the affidavit. Diaz, 632 S.W.3d at 893. But where the remainder does not support a finding of probable cause, “the search warrant must be voided and the evidence suppressed.” Id.

Neither this Court nor the United States Supreme Court has decided whether to “recognize application of a Franks-like analysis to intentional and material omissions of fact in the warrant affidavit[.]” Massey, 933 S.W.2d at 146; see also Diaz, 632 S.W.3d at 892 (“We have assumed that Franks applies to material omissions, but we have not decided the issue.”). But even if Franks applied to omissions, it would not matter here because the omission was not material—the affidavit's probable-cause showing would not be undermined by adding the omitted information.

C. The Omission

As found by the trial court and shown by the record, Pate and O'Brien briefly entered the crime scene after the first responding patrol officers finished their protective sweep of the apartment and before O'Brien obtained Warrant 1.

At the suppression hearing, O'Brien testified that he arrived at the crime scene at about 1:30 p.m., and Pate was already there talking to Officer Bobby Smith, one of the first patrol officers on the scene. O'Brien heard Smith relate that: (1) there were two deceased females (an adult and a juvenile) inside the apartment; (2) a relative had tentatively identified them as the relative's sister and niece, respectively; (3) the adult's body was in the kitchen, and the juvenile's body was upstairs; (4) the adult had a bag over her head; (5) the juvenile “had some blood coming out of her mouth”; and (6) “it wasn't apparent how they died.”

O'Brien testified that he and Pate learned this information before they did anything else. After that, they entered the apartment because O'Brien “wanted to see the individual with the bag on her head[.]” O'Brien explained that, as “a homicide detective, I see a lot more deceased individuals than the standard patrol officer. And so I had actually been to scenes where individuals had bags on their head, and it was self inflicted.” Before he prepared the warrant, he “wanted to make sure the officer was describing what actually the scene was.” O'Brien said that, when he looked in the kitchen, he saw that Smith had described the scene correctly.

O'Brien denied that he was looking for evidence during this walk through. He testified that he did not open any drawers or pick up anything and that he “literally was probably in there for 25, 30 seconds” before walking out and beginning to prepare a search warrant. When asked why he did not mention in the affidavit that he entered the apartment to confirm what the patrol officers told the detectives, O'Brien stated that “it would just be redundant” because he “didn't learn anything new.”³

D. Analysis

Appellant concedes and we agree that the omission was not material. O'Brien testified that he and Pate discovered nothing new when they briefly viewed Womack's body on the kitchen floor. They simply confirmed that Smith had accurately assessed the scene as involving murder rather than suicide and that they would need a search warrant to further investigate. The affidavit's probable cause was established by the patrol officers’ observations as communicated by Smith to Pate and O'Brien.

Moreover, the affidavit would have established probable cause to search even if it had included the fact that O'Brien and Pate briefly entered the apartment to observe Womack's body. Adding that fact would not have detracted from the fair probability shown in the affidavit that evidence of a crime would be found in the apartment. See Rodriguez, 232 S.W.3d at 60; cf. United States v. Martin, 615 F.2d 318, 323, 328 (entertaining omissions-based Franks claim where affidavit supporting warrant “consisted solely of hearsay accounts of information given to police[,]”and the omissions implicated the informants’ reliability).

In sum, Appellant has not shown that the trial court abused its discretion in denying his motion to suppress based on an allegedly material omission from the affidavit in support of Warrant 1.

We overrule point of error two.

IV. CONFRONTATION CLAUSE—“SURROGATE” EXPERT TESTIMONY

In point of error three, Appellant complains about the admission of expert testimony by forensic pathologist Dr. Tasha Zemrus. He says that Zemrus's testimony about the victims’ causes and manners of death violated his Sixth Amendment right to confrontation because her opinions were based in part on the autopsy report written by a non-testifying forensic pathologist, Dr. Marc Krouse. Relying on Smith v. Arizona, he argues that he had an absolute right to cross-examine Krouse. 602 U.S. 779, 783, 144 S.Ct. 1785, 219 L.Ed.2d 420 (2024). Appellant's complaint fails because Krouse's out-of-court statements were not admitted before the jury for any purpose, much less for their truth.

A. Sixth Amendment Confrontation Clause

“In all criminal prosecutions, the accused shall enjoy the right ․ to be confronted with the witnesses against him[.]” U.S. Const. amend. VI. “In operation, the Clause protects a defendant's right of cross-examination by limiting the prosecution's ability to introduce statements made by people not in the courtroom.” Smith, 602 U.S. at 783–84, 144 S.Ct. 1785. It “bars the admission at trial of ‘testimonial statements’ of an absent witness unless she is ‘unavailable to testify, and the defendant ha[s] had a prior opportunity’ to cross-examine her.” Id. at 783, 144 S.Ct. 1785 (quoting Crawford v. Washington, 541 U.S. 36, 53–54, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004)). Its “primary object is testimonial hearsay[.]” Crawford, 541 U.S. at 53, 124 S.Ct. 1354. A confrontation violation depends on admission of a (1) testimonial (2) out-of-court statement (3) offered for its truth. Smith, 602 U.S. at 784–85, 144 S.Ct. 1785. A statement “admitted for a reason unrelated to its truth” does not implicate the right to confrontation. Id. at 785, 144 S.Ct. 1785.

An absent analyst's testimonial, out-of-court statements offered in support of a testifying analyst's opinion implicate confrontation only if the support depends on the truth of the out-of-court statements. Id. at 783, 144 S.Ct. 1785. As Smith illustrated, “that will generally be the case when an expert relays an absent lab analyst's statements as part of offering his opinion.” Id.

Smith complained that his confrontation right was violated at his trial for drug possession because the substances were tested by one analyst, Elizabeth Rast, but the results were testified to by another, Greggory Longoni. Id. at 790–91, 144 S.Ct. 1785. Longoni prepared for trial by reviewing Rast's report and notes and testified on that basis. Id. at 791, 144 S.Ct. 1785. At trial, he described Rast's analytical methods and testified that they “adhered to ‘general principles of chemistry,’ as well as to the lab's ‘policies and practices,’ ” noting, “for example, that Rast had run a ‘blank’ to confirm that testing equipment was not contaminated[.]” Id. Based on Rast's records, “Longoni offered an ‘independent opinion’ ” that the items were the drugs Rast had identified. Id.

Longoni's testimony about Rast's work was hearsay. Id. at 800, 144 S.Ct. 1785. He was Rast's “mouthpiece” who “testified to the precautions (she said) she took, the standards (she said) she followed, the tests (she said) she performed, and the results (she said) she obtained.” Id. In short, her out-of-court statements were offered so the jury would believe them; they were offered for their truth. Id.

The Court concluded, “A State may not introduce the testimonial out-of-court statements of a forensic analyst at trial, unless she is unavailable and the defendant has had a prior chance to cross-examine her.” Id. at 802–03, 144 S.Ct. 1785. Nor may a surrogate analyst who did not help create the statements testify to them. Id. at 803, 144 S.Ct. 1785; see also Burch v. State, 401 S.W.3d 634, 637–38 (Tex. Crim. App. 2013) (holding that defendant's right to confrontation was violated by admission of a lab report sponsored by a witness who apparently had no personal knowledge about its preparation or the tests it memorialized). An expert may testify to his opinion based on a non-testifying expert's analysis, but he “cannot act as a surrogate to introduce that information.” Paredes v. State, 462 S.W.3d 510, 517–18 (Tex. Crim. App. 2015).

Did Zemrus act as a surrogate to introduce Krouse's opinions to the jury? She did not. Krouse's opinions were not offered to the jury—not for their truth or any other purpose; they were not offered at all.

B. Zemrus's Testimony

Zemrus testified before the jury that she was the deputy chief medical examiner for the Tarrant County Medical Examiner's Officer (“TCMEO”). She did not conduct Womack's or K.R.W.’s autopsies but reviewed associated records to form her “own opinion about both the cause and manner of death.” For both victims, she

reviewed our investigative report, which is created by our forensic death investigator; the autopsy report that was generated around the time of the examination; the associated diagrams and notes that were also created at that time; additional reports from our office, from the trace examination and the anthropology department; toxicology report; I think the identification report as well; and then autopsy and scene photographs.4

Zemrus testified that the photographs of Womack showed the following injuries:

• abrasions of the mouth, bruising in the corner of the lip, and petechiae inside the lips;

• petechial hemorrhages on the undersurface of the eyelids, indicating increased pressure in those vessels;

• contusions predominantly on the forearm;

• abrasions and bruising on the left hand and abrasions, bruising, and bleeding on the right hand;

• scalp lacerations caused by pre-mortem blunt force trauma;

• brain swelling;

• abrasions and contusions on both sides and the front of the neck in a generally linear pattern, which could suggest the use of some kind of “ligature object”; and

• internal hemorrhaging around the thyroid gland.

Photos of K.R.W. showed:

• “a lot of blood and discharge” and “bloody, foamy fluid ․ present on the face and coming from the nose;”

• petechiae inside the eye;

• a very small abrasion on the right side of the neck;

• internal hemorrhage around the thyroid gland and into multiple muscles surrounding the thyroid, indicating some sort of trauma or application of pressure in the neck area; and

• brain swelling.

Zemrus explained the significance of the injuries and how they supported her conclusions that: (1) Womack's death was a homicide caused primarily by strangulation with blunt force trauma being a “significant contributing condition”; and (2) K.R.W.’s death was a homicide caused by strangulation.

Zemrus did not refer to Krouse or his reports or opinions during her direct testimony, and his reports were not offered before the jury. Her only mention of Krouse was to testify in response to cross-examination that Krouse had written the autopsy reports and that she did not know why he had not been called to testify or if he was available to do so.

C. Analysis

Appellant's confrontation complaint fails for lack of an out-of-court statement. Zemrus did not testify to Krouse's findings or report; they were not offered for their truth or any other purpose; they were not offered at all. His out-of-court statements could not have violated the confrontation clause because they were not admitted into evidence. That distinguishes this case from Smith and Burch.

In Smith one expert took the stand to parrot the out-of-court statements of another expert and to endorse her methods as valid even though he had not witnessed them. 602 U.S. at 790–91, 144 S.Ct. 1785. He was merely a “mouthpiece” for the absent witness. Id. at 800, 144 S.Ct. 1785. The same thing happened in Burch—a surrogate analyst testified instead of the analyst with personal knowledge. 401 S.W.3d at 635.

But here Zemrus testified about her own conclusions reached in reliance on the reports and photographs gathered by her office. She did not “act as a surrogate to introduce” Krouse's report. See (Jovany) Paredes, 462 S.W.3d at 518. She did not testify to or vouch for Krouse's conclusions, observations, or methods. See Burch, 401 S.W.3d at 635–36. She was not Krouse's mouthpiece. See Smith, 602 U.S. at 800, 144 S.Ct. 1785. The jury never heard Krouse's opinions or saw his report. See id. at 802–803, 144 S.Ct. 1785. Instead, the jury heard Zemrus's opinions and how she reached them, and Appellant had the opportunity to cross-examine her about them.

Appellant concedes that Zemrus did not testify about Krouse's out-of-court statements but argues that Zemrus could not rely on Krouse's report to form her opinion. He maintains, “It would be a distinction without a constitutional difference” to hold that her reliance on Krouse's report did not violate the right to confrontation merely because she did not repeat Krouse's out-of-court statements. But there is no violation of the Confrontation Clause without the introduction of hearsay. Smith, 602 U.S. at 792, 144 S.Ct. 1785; Crawford, 541 U.S. at 68, 124 S.Ct. 1354; Paredes, 462 S.W.3d at 514. Appellant also discounts Zemrus's reliance on the photographs because she testified that she looked at them to verify Krouse's report and notes. She did not testify to that verification purpose in front of the jury, however, but only in the hearing before the trial court. So even if that testimony was inadmissible, it was harmless.

Appellant's confrontation complaint fails because no out-of-court statement was admitted.

We overrule point of error three.

V. CONFRONTATION CLAUSE—PUNISHMENT TESTIMONY

In point of error five, Appellant complains on confrontation grounds about an out-of-court statement offered in the punishment phase of trial. Even if the Confrontation Clause applied to the punishment phase ⁵ and was violated, any error was harmless beyond a reasonable doubt.

A. Background

Tarrant County Corrections Officer Richard Giebel testified that on May 17, 2023, he was the “pod officer” in the control booth for “57 Bravo”—a group of two-person cells and a dayroom. Appellant and Corey Hudson were cell mates in 57 Bravo. An intercom system connected each cell to the control booth. As the pod officer, Giebel's duties included ensuring the security and safety of 57 Bravo's inmates.

On that day, Hudson used the intercom to tell Giebel that he “had hurt his eye, and that he had hit the bunk, and he fell on the bunk or hit the bunk, and he hurt his eye.” Giebel investigated and found Appellant and Hudson in their cell. On seeing Hudson's injury, Geibel testified, he did not believe Hudson's account of it; he thought it had resulted from an assault, not a mishap with a bed.

Giebel ordered Appellant out of the cell and into the dayroom and ordered the inmates who were already in the dayroom to return to their cells. When they refused, Giebel called a “Code 11,” a call for assistance due to a disturbance. Multiple officers responded.

Andrea Jimenez, a nurse, saw Hudson in the 57 Bravo pod “[lying] on the floor, and the officers․attempting to assist him to a sitting position.” Jimenez saw that Hudson had a large knot over his right eye and a large laceration to the left eye, which was swelling shut. Jimenez testified that Hudson's injuries concerned her because “[h]e could have facial fractures. He could pass out. He could have internal bleeding, head trauma. He could actually die from severe injuries if it's severe enough [sic].”

Sergeant Jevon Stubbs, one of the responding officers, testified that he found Hudson with a bloody face outside a cell. Appellant and a few other inmates were inside the cell. Stubbs directed the inmates in the cell to raise their hands. Appellant's hands were shaking and had blood on them. No other inmate had bloody hands. Stubbs tried to interview Appellant and these inmates, but none of them would talk.

Stubbs testified that he helped transport Hudson to “Medical” and saw that Hudson was upset and in obvious pain during their five-to-seven-minute trek. Stubbs encouraged him to tell the truth about what had “actually happened ․ in the housing unit.” After the trial court sustained Appellant's hearsay objection, the prosecutor continued:

Q. (BY [PROSECUTOR]) At this time, was he still upset?

A. He was upset.

Q. And was he still in pain?

A. He was in pain.

Q. And was he describing to you why he -- what caused him to be in pain, and why he was upset?

A. He said he was hit --

[DEFENSE COUNSEL]: Your Honor, I'm going to, again -- I'm going to object to -- to hearsay and confrontation.

THE COURT: Are you offering it as an excited utterance?

[PROSECUTOR]: I am, Your Honor.

THE COURT: And so that objection is overruled.

[DEFENSE COUNSEL]: As to confrontation as well?

THE COURT: Yes.

You may answer.

[DEFENSE COUNSEL]: Can I have a running objection, Your Honor?

THE COURT: You may.

Stubbs then testified that Hudson told him the other inmates had been making “hooch” from the toilet, and because Hudson did not want to participate, Appellant told him to “stop being a bitch about it” and punched him.

Hudson did not testify at trial, and the State made no showing of his unavailability.

B. Trial Court Error

Once Appellant objected to Hudson's statement on confrontation grounds, the State had to overcome the objection by showing it was not testimonial or it was not offered for its truth or that Hudson was unavailable to testify at trial and that Appellant had had an earlier opportunity to cross examine him. See Langham v. State, 305 S.W.3d 568, 581–82 (Tex. Crim. App. 2010); De La Paz v. State, 273 S.W.3d 671, 680–81 (Tex. Crim. App. 2008); Vinson v. State, 252 S.W.3d 336, 340 (Tex. Crim. App. 2008). But the trial court overruled Appellant's Confrontation Clause objection with no such showing.

To the extent that the State and the trial court equated an excited utterance with nontestimonial hearsay, they erred. See Wall v. State, 184 S.W.3d 730, 742 (Tex. Crim. App. 2006) (discussing and adopting the approach set forth in United State v. Brito, 427 F.3d 53 (1st Cir. 2005)). The inquiries are related but distinct; they are fact-bound, and they are subject to different standards of review. Id. at 743. Here, as in Wall, the trial court failed to assess whether the excited utterance was testimonial. See id. But even assuming Hudson's statement was testimonial and inadmissible, the record shows beyond a reasonable doubt that Appellant was not harmed by its admission. See Tex. R. App. P. 44.2(a).

C. Harm Analysis

A Confrontation Clause error requires reversal “unless the court determines beyond a reasonable doubt that it did not contribute to the conviction or punishment.” Tex. R. App. P. 44.2(a); see also Wall, 184 S.W.3d at 745. The evaluation depends on four factors: (1) the importance of the statement to the prosecution's case; (2) whether the statement was cumulative of other evidence; (3) whether its material points were corroborated or contradicted by other evidence; and (4) the strength of the prosecution's case. Langham, 305 S.W.3d at 582 (citing Scott v. State, 227 S.W.3d 670, (Tex. Crim. App. 2007)); see also Davis v. State, 203 S.W.3d 845, 852 (Tex. Crim. App. 2006).

We may also consider: the source and nature of the error; the extent, if any, to which the State emphasized the erroneously admitted evidence; and how much weight the jury might have placed on the erroneously admitted evidence compared to the remaining evidence relevant to the element or defensive issue. Allison v. State, 666 S.W.3d 750, 764 (Tex. Crim. App. 2023). “We must ask whether there is a reasonable possibility that the error moved the jury from a state of non-persuasion to one of persuasion on a particular issue.” Id.

Rule 44.2(a)’s harm analysis does not focus on the propriety of the trial's outcome. Id. Instead, the question is whether “the error adversely affected the integrity of the process leading to the conviction.” Langham, 305 S.W.3d at 582 (quoting Scott, 227 S.W.3d at 690–91).

D. Analysis

The State's burden in the punishment phase was to show a probability beyond a reasonable doubt that Appellant was a future danger to society. See Art. 37.071, § 2(b)(1) (requiring the jury to decide whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society); id. § 2(c) (placing the burden on the State to prove the defendant's “future dangerousness” beyond a reasonable doubt). Society includes prison. Smith v. State, 898 S.W.2d 838, 846 (Tex. Crim. App. 1995). “The future-danger issue focuses on the defendant's character for violence and his internal restraints, not merely the external restraints of incarceration.” Green v. State, 713 S.W.3d 865, 878 (Tex. Crim. App. 2025); see also Coble v. State, 330 S.W.3d 253, 269 (Tex. Crim. App. 2010).

Appellant argues that “the exclusion of [Hudson's out-of-court] testimony would have left the jury with bare information that would support a yes answer to the future dangerousness [special] issue.” But the record shows otherwise because (1) other, admissible evidence showed that Appellant assaulted Hudson, (2) the assault on Hudson was not the only evidence of Appellant's violent behavior in jail, (3) the jury saw and heard other evidence of Appellant's volatility, and (4) the offense of conviction alone strongly supported the finding of future dangerousness.

First, other, admissible evidence proved Appellant's assault on Hudson. The jury could have reasonably inferred from Giebel's and Jimenez's testimony that Hudson was assaulted inside the cell that he and Appellant shared. And Stubbs's testimony about Appellant's shaky, bloody hands—unique among the crowd of inmates—supported a reasonable inference that Appellant was the assailant. Even excluding Hudson's out-of-court statement identifying Appellant as his assailant, strong circumstantial evidence showed that Appellant assaulted Hudson.

Second, the assault on Hudson was not the only evidence of Appellant's violent and combative behavior while jailed awaiting trial. The jury also heard about Appellant's fight with another inmate who knocked him down. The other inmate then tried to walk away, saying that the fight was over, but Appellant pursued him because he “wanted revenge” and wanted to keep fighting. Guards finally had to intervene and separate the two men. In another incident, Appellant became “very irate” and cursed at a guard who had warned him that he would not be released to the dayroom until he uncovered the lights and unplugged the vents in his cell. Appellant demanded that the guard “get fucking rank up here” (“rank” being a supervisor) and threatened the guard that “if I see you out in the world, I'm going to get you.” The guard responded that a threat could result in a disciplinary action and Appellant's removal to a higher-security unit. Appellant insisted that he was not afraid of either consequence and began repeatedly hitting the cell door. The guard found Appellant's threat credible enough to report it.

Third, the jury witnessed and heard other evidence of Appellant's volatility. In the guilt phase of trial, the State offered evidence of Appellant's several assaults on Womack, one of which was documented on surveillance video that was played for the jury. In addition, at the start of the punishment phase with the jury in the box, Appellant disrupted the proceedings by trying to “say [something] on the record in front of the jury.” After a brief commotion in which Appellant was trying to share his frustration while the court and attorneys were trying to explain that he could not talk, the court excused the jury and recessed the proceedings for the day. The next morning, the jury heard testimony that Appellant had told the bailiff that he was angry with his attorneys and wanted to punch “all of them.”

Fourth, the offense of conviction was especially brutal. Although murder is inherently brutal, murders that require the perpetrator's prolonged, close proximity to his victim are particularly “personal act[s]” that demonstrate a wanton and callous disregard for human life. See King v. State, 953 S.W.2d 266, 272 (Tex. Crim. App. 1997); see also Martinez v. State, 924 S.W.2d 693, 696 (Tex. Crim. App. 1996). Here, Appellant choked the two victims for several minutes, killing them by cutting off blood flow to their brains. He not only strangled Womack, but he also beat her head. And besides strangling young K.R.W. to death, Appellant viciously assaulted her sexually, tearing her body apart—another extremely “personal act” demonstrating a wanton and callous disregard for human life.

In sum, the hearsay rendition of the assault on Hudson was of minor importance compared to the additional evidence supporting the affirmative finding of future dangerousness, and it was cumulative of the circumstantial evidence that corroborated Appellant's guilt as Hudson's assailant.

While the State highlighted the hearsay testimony about the assault on Hudson in its closing argument without mentioning the circumstantial evidence of it, that highlight was brief and likely weighed little compared to the remaining evidence of appellant's future dangerousness, especially that captured on video, demonstrated in person to the jury, or depicted in the photographs proving the offense of conviction—all of which the State emphasized in its closing argument. On this record, there is no reasonable possibility that the alleged Confrontation Clause error moved the jury from a state of non-persuasion to one of persuasion about Appellant's future dangerousness. See Allison, 666 S.W.3d at 764. Beyond a reasonable doubt the alleged error did not contribute to Appellant's sentence. Id.

We overrule point of error five.

VI. CLASSIFICATION EXPERT'S TESTIMONY

In point of error four, Appellant claims that the trial court erred in the punishment phase by overruling his Rule 403 objection to testimony about the types of crimes inmates commit in prison. See Tex. R. Evid. 403. He contends that the testimony was “overly prejudicial, confusing to the jury and misleading.” He says, “[a]n opinion about acts of violence committed by other prison inmates” and unconnected to him “created a danger of unfairly prejudicing” his right to individualized sentencing. He suggests that without a “nexus” between his own conduct and the crimes committed in prison, Rule 403 required exclusion of testimony about the latter.⁶ But the trial court did not abuse its discretion in admitting the testimony because its relevance to the future dangerousness issue was not substantially outweighed by the dangers Appellant cites.

A. Background

TDCJ's Director of Classification, Timothy Fitzpatrick, testified about the inmate-classification system and the fact that TDCJ inmates commit crimes while in prison. Appellant objected to the following:

Q. Can you give this jury, generally speaking, what kind of crimes we're referring to?

[DEFENSE COUNSEL]: Your Honor, I have an objection. I would object under 401, 402, 403, also the Eighth Amendment. He has a right to individualized sentencing. This is about events that don't relate to the defendant at all. The jury's deciding on his future danger, not events involving people that have nothing to do with him.

THE COURT: Do you have a response?

[PROSECUTOR]: I do. As Defense counsel is aware, the witnesses that are coming behind him are employees of the Tarrant County Jail, and there's been some discussion already that dependent on his behavior while he's in the county jail, he could end up with a higher classification.

And this witness has the ability to speak of that the [sic] behavior that this jury is fixing to hear about at the county jail, that that same behavior can and does continue in the prison system by other inmates and that crime does occur within the TDC units.

I haven't asked about a specific case, or a specific individual, or specific facts. I'm just talking very general that crime has occurred, and generally what kind of crimes we're referring to.

THE COURT: Those objections are overruled, and the Court makes a finding that the probative value of this evidence substantially outweighs any danger of unfair prejudice.

Appellant requested and received a running objection.

Fitzpatrick then testified that the following crimes occur in TDCJ, although they do not always result in criminal prosecution: possession of dangerous contraband; assaults on prison staff; threats of violence toward prison staff; and inmate-on-inmate assaults.

B. Standard of Review

We review a trial court's decision to admit or exclude evidence for an abuse of discretion, Valadez v. State, 663 S.W.3d 133, 143 (Tex. Crim. App. 2022), considering the record the trial court faced when it made the ruling. Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000). The trial court does not abuse its discretion if its ruling falls within the zone of reasonable disagreement. Valadez, 663 S.W.3d at 143; see also Montgomery v. State, 810 S.W.2d 372, 390 (Tex. Crim. App. 1990) (op. on reh'g) (holding, “So long as the trial court thus operates within the boundaries of its discretion, an appellate court should not disturb its decision, whatever it may be.”).

“Relevant evidence” is “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Tex. R. Evid. 401. As pertinent here, Rule 403 allows a trial court to “exclude relevant evidence if its probative value is substantially outweighed by danger of ․ unfair prejudice, confusing the issues, [or] misleading the jury[.]” Tex. R. Evid. 403.

Under Rule 403, “probative value” means “how strongly” an item of evidence “serves to make more or less probable the existence of a fact of consequence” along “with the proponent's need for that item of evidence.”Gigliobianco v. State, 210 S.W.3d 637, 641 (Tex. Crim. App. 2006). “ ‘[U]nfair prejudice’ refers to a tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one.” Id. “Confusion of the issues” means “a tendency to confuse or distract the jury from the main issues in the case.” Id. And “misleading the jury” means a tendency to give an item of evidence undue weight on other-than-emotional grounds. Id. The rule favors the admission of otherwise relevant evidence—not its exclusion. De La Paz, 279 S.W.3d at 343; see also Conner v. State, 67 S.W.3d 192, 202 (Tex. Crim. App. 2001). Exclusion is justified only if there is “a clear disparity between the degree of prejudice of the offered evidence and its probative value.” Jones v. State, 944 S.W.2d 642, 652 . (Tex. Crim. App. 1996).

The jury had to decide if there was a probability that Appellant would commit criminal acts of violence that would constitute a continuing threat to society. See Art. 37.071, § 2(b)(1). “Society” means both prison and the free world. See, e.g., Martinez, 327 S.W.3d at 735. So “juries appropriately focus upon the defendant's individual character for violence and the probability that he would commit acts of violence in whatever society he found himself.” Coble, 330 S.W.3d at 269. For example, in Jenkins v. State, evidence about the availability of drugs in prison was relevant to show that the defendant “could be just as dangerous in prison society as he is in [non-prison] society where drugs are freely available.” 912 S.W.2d 793, 818 (Tex. Crim. App. 1993).

C. Analysis

Fitzpatrick's testimony about violence in prison and TDCJ's efforts to control it was relevant to the future dangerousness issue. It was contextual evidence of prison-environment realities. Fitzpatrick testified about categories of crimes that happen “within [his] unit;” namely, “possession of dangerous contraband,” “staff assaults,” “inmate-on-inmate assaults,” and threats. He did not suggest that Appellant had committed or would commit such crimes; but he showed that a prison sentence does not necessarily prevent violence. This realistic insight into prison life did not suggest an improper or emotional basis for answering the future-dangerousness issue, it had no tendency to confuse or distract the jury from the future-dangerousness issue, and it did not tempt the jury to give undue weight to an item of evidence for non-emotional reasons. See Gigliobianco, 210 S.W.3d at 641. In short, the probative value was not substantially outweighed by the Rule 403 dangers that Appellant cites.

We overrule point of error four.

VII. CONSTITUTIONAL CHALLENGE

In point of error one, Appellant claims that the trial court's

mandatory adherence to ․ [Article] 37.071, which forbade the [trial court] or any party from informing a juror that the effect of a failure of the jury to agree on the special issues will automatically result in a life without possibility of parole sentence, resulted in the denial of the Appellant's requested jury instruction which thereby operated to abridge the guarantee of freedom of speech and due process of law guaranteed under the [F]irst and [F]ourteenth [A]mendments to the U.S. Constitution.

His point of error is unclear. To the extent that it asserts a due process complaint about Section 2(a)(1) of Article 37.071, it lacks merit, as we have repeatedly held. E.g., Coble, 330 S.W.3d at 297.

The point of error might instead be a challenge to the jury charge or the constitutionality of Section 2(a)(1) of Article 37.071. Appellant's brief suggests the latter—a facial constitutional challenge to the statute. He contends, for example, that “[t]he part of the statute which precluded Appellant's jury instruction and right to free speech is unconstitutional in all its applications to any capital murder trial where the State seeks the death penalty. It is facially unconstitutional.” See U.S. Const. amend. I (“Congress shall make no law ․ abridging the freedom of speech[.]”). He also argues on appeal that the statute violates the free speech rights of trial counsel and the trial judge, implicates the free speech right of the prosecutor, and encroaches on the independence of the judicial branch.

Appellant did not preserve his First Amendment complaint for two reasons: first, he brings a facial challenge for the first time on appeal, but in the trial court he made an as-applied challenge, and second, he makes arguments here that he did not make there.

A. Preservation of Error

“[A] defendant may not raise for the first time on appeal a facial challenge to the constitutionality of a statute.” Karenev v. State, 281 S.W.3d 428, 434 (Tex. Crim. App. 2009). “[I]n general, a facial constitutional challenge to a statute does not implicate an absolute requirement or prohibition that is exempt from ordinary preservation-of-error requirements, and, therefore, such a challenge may not be presented for the first time on direct appeal.” Ex parte Beck, 541 S.W.3d 846, 852–53 (Tex. Crim. App. 2017).

“Preservation of error is a systemic requirement on appeal. If an issue has not been preserved for appeal, neither the court of appeals nor this Court should address the merits of that issue.” Ford v. State, 305 S.W.3d 530, 532–33 (Tex. Crim. App. 2009). To preserve a complaint for appeal, a party must make a timely, specific objection and obtain a ruling from the trial court. Tex. R. App. P. 33.1(a).

A sufficiently specific objection need not be hyper technical or formalistic. Ex parte Nuncio, 662 S.W.3d 903, 914 (Tex. Crim. App. 2022). But it must clearly convey the “particular complaint to the trial judge.” Mosley v. State, 666 S.W.3d 670, 676 (Tex. Crim. App. 2023). That is, it must “let the trial judge know what [the complaining party] wants [and] why he thinks he is entitled to it,” and it must “do so clearly enough for the judge to understand him at a time when the judge is in the proper position to do something about it.” Lankston v. State, 827 S.W.2d 907, 909 (Tex. Crim. App. 1992).

Preservation also requires that the complaint on appeal comport with the complaint made at trial. “In making this determination, we consider the context in which the complaint was made and the parties’ shared understanding at that time.” Pena v. State, 285 S.W.3d 459, 464 (Tex. Crim. App. 2009) (internal footnotes omitted).

B. Background

After his conviction, Appellant submitted written “Objection 1” to the punishment charge. See Art. 36.14. It advocated instructing the jury that a life-without-parole sentence would automatically result from the jury's inability to answer either special issue, and it claimed that the failure to give the instruction violated his freedom of speech:

The current instructions provide that the trial court will sentence the defendant to life without parole if the jury returns a negative finding on special issue 1 or an affirmative findings [sic] on special issue 2. Defendant objects to the failure to include the third circumstance discussed in Tex. Pen. Code [sic] § 37.071(g): that a sentence of life without parole will automatically result if the jury is unable to answer either special issue number one or special issue two. See Tex. Pen. Code [sic] § 37.071(g).

Defendant submits the failure to include this instruction violates the Eighth and Fourteenth Amendments to the U.S. Constitution. This issue is foreclosed in the Texas Court of Criminal Appeals. Coble v. State, 330 S.W.3d 253, 297 (Tex. Crim. App. 2010); Resendiz v. State, 112 S.W.3d 541, 549 (Tex. Crim. App. 2003). However, he wishes to preserve the issue for further review.

Defendant further submits the failure to instruct the jury of this circumstance violates his right to freedom of speech under the First Amendment, the due process clause of the Fifth Amendment, and his right to jury trial under the Sixth Amendment via the Fourteenth Amendment.

(Emphasis added).

Appellant reiterated his written objection at the charge conference:

Last night, I filed an Objections to the Court's Punishment Charge, which was accepted this morning, and I set out in those objections a request that the Court instructs the jury that in the event they're not able to agree on either Special Issue 1 or 2, that under the statute the sentence of life without parole will automatically result.

This issue is currently foreclosed in Texas by the Court of Criminal Appeals; however, we would like to preserve that for further review. That issue is foreclosed in connection with Eighth Amendment challenge [sic] and Fourteenth Amendment challenge [sic].

I've also objected on the grounds of the First Amendment; Due Process Clause of the Fifth Amendment; right to a jury trial under Sixth Amendment, all of which are incorporated under the Fourteenth Amendment. So I raise those additional grounds for inclusion in the Court's Charge.

The trial court overruled the objection and omitted the requested instruction as required by Article 37.071 section 2(a)(1).

C. Analysis

A facial challenge asserts that a law “is unconstitutional on its face” and “that it operates unconstitutionally in all of its potential applications.” Estes v. State, 546 S.W.3d 691, 697–98 (Tex. Crim. App. 2018). “Conversely, in an as-applied challenge, the claimant concedes the general constitutionality of the statute” but asserts that it is unconstitutional as applied to him. Id. at 698. The challenger bears the burden to show that the law “is unconstitutional as ‘applied to him; that it may be unconstitutional as to others is not sufficient (or even relevant).’ ” Id. (quoting State ex rel Lykos v. Fine, 330 S.W.3d 904, 910 (Tex. Crim. App. 2011).

Appellant's Objection 1 complained that the statute violated “his” First Amendment rights. And his remarks at the charge conference did not contradict or add to that as-applied rendition of his complaint.

Now on appeal, Appellant has abandoned his as-applied challenge. See McClure, 648 S.W.2d at 677. Instead, he challenges the facial constitutionality of the statute and argues for the first time that the Section 2(a)(1) prohibition: (1) violates the free speech rights of others—his trial counsel, the trial judge, and the prosecutor; and (2) implicates the separation of powers. His complaint and arguments deviate from his written and oral objections in the trial court. See Pena, 285 S.W.3d at 464.

In sum Appellant has not preserved this claim for appellate review.

We overrule point of error one.

VIII. CONCLUSION

Having found no reversible error, we affirm the trial court's judgment and sentence of death.

CONCURRING OPINION

Not included in the Court's observes factual summary of Appellant's Fourth Amendment claim is the fact that, at the time of the murders, a bond condition prohibited Appellant from contacting O'Tishae. As a consequence of this bond condition, he would not have been permitted to live, or even stay overnight, in her home—much less kill her in her home. Even if the warrant to search O'Tishae’s home were invalid, that would not matter because the prohibition in the bond condition meant that Appellant had no expectation of privacy in that home. As the Ninth Circuit said in United States v. Schram:

Like a burglar, trespasser, or squatter, an individual violating a court no-contact order is on property that the law prevents him from entering. We therefore hold that such an individual lacks a legitimate expectation of privacy in that place and may not challenge its search on Fourth Amendment grounds. In doing so, we join not only the Third Circuit, but every other court that has considered the matter.1

More recently, the Tenth Circuit has also recognized this principle:

The Supreme Court has held a person lacks an objectively reasonable expectation of privacy in a place in which his presence is “wrongful.” This principle applies to a variety of situations. For example, it includes squatters and trespassers. It also extends to individuals whose presence is otherwise wrongful despite the owner's consent, such as those in violation of supervised release terms, or subject to a no-contact order, or guests of evicted tenants.2

And it is no answer to claim that any prohibition against staying in the victim's home lapsed with the victim's death. “The principle that no person shall be permitted to benefit from the consequences of his or her wrongdoing has long been applied to disqualify murderers from inheriting from their victims.”³ If a murder disqualifies the murderer from inheriting from the victim, it should also disqualify the murderer from obtaining a privacy interest in a dwelling that he would otherwise lack if the victim were still alive. We have recognized the doctrine of “forfeiture by wrongdoing” when a defendant who murders a victim attempts to raise a confrontation claim against prior hearsay statements made by the victim.⁴ Similar considerations apply to any claim that a privacy interest in a home that was extinguished by a no-contact order revived upon the murdered victim's death.

While the Court's analysis of the Franks issue is unobjectionable, and the Court is free to dispose of Appellant's claim on any basis supported by the law, the circumstances here cry out for recognition—even if only in a side opinion—that Appellant's claim fails for a more basic reason than a validly supported warrant—that he possessed no valid expectation of privacy in the home of the person he killed. With these comments, I join the Court's opinion.

FOOTNOTES

1.   Unless we indicate otherwise, all references to “Articles” in this opinion refer to the Code of Criminal Procedure.

2.   Womack's twin four-year-old boys were apparently present during the murders. They were later found unharmed at their elementary school where Appellant left them before he fled the state.

3.   Pate did not testify, but his “Case Notes” were entered into evidence, and they corroborated O'Brien’s testimony. Pate's 1:45 p.m. note reports that he and O'Brien did a “brief walk through” to view O'Tishae’s body in the kitchen but states that they “did not go any further in the residence and did not go upstairs due to the fact that we had obtained enough information to determine that a search warrant was needed.”

4.   Zemrus testified from photographs that had been admitted through other witnesses: TCMEO investigator Mike Pollard and autopsy technicians Cynthia Esparza and Rufus Dill. Appellant objected to the photos based on Texas Rules of Evidence 401, 402, and 403, and his Franks v. Delaware suppression motion, addressed above. But he did not object to the photos on grounds of hearsay or confrontation.

5.   See United States v. Fields, 483 F.3d 313, 326 (5th Cir. 2007) (cert. denied 552 U.S. 1144, 128 S.Ct. 1065, 169 L.Ed.2d 814 (2008)) (holding that the Confrontation Clause did not bar hearsay admitted to prove future dangerousness in capital sentencing hearing).

6.   Appellant objected at trial on additional grounds besides Rule 403—Texas Rules of Evidence 401 and 402 and the Eighth Amendment. See Tex. R. Evid. 401, 402; U.S. Const. Eighth Amend. His brief mentions “individualized sentencing” to support his Rule 403 argument, but point of error four is premised exclusively on Rule 403: “The Court erred in overruling Appellant's Rule 403 objection to the admission of the opinions of the State's prison classification expert on what types of crimes are committed in prison by inmates.” So we address it accordingly.

1.   901 F.3d 1042, 1046 & n.3 citing cases (9th Cir. 2018).

2.   United States v. Guzman, 149 F.4th 1132, 1140 (10th Cir. 2025).

3.   Prudential Ins. Co. of Am. v. Athmer, 178 F.3d 473, 475 (7th Cir. 1999).

4.   See Colone v. State, 573 S.W.3d 249, 264 (Tex. Crim. App. 2019).

Keel, J., delivered the opinion of the Court in which Schenck, P.J., and Richardson, Newell, Walker, McClure, Finley, and Parker, JJ., joined.

Yeary, J., joined except as to Part VII. Parker, J., filed a concurring opinion, in which Finley, J., joined.