Opinion
Nos. 05-04-01216-CR, 05-04-01217-CR
Opinion filed September 16, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the Criminal District Court No. 5, Dallas County, Texas, Trial Court Cause Nos. F03-52653-Sl F03-52654-SL. Affirmed.
Before Justices WHITTINGTON, MOSELEY, and LANG-MIERS.
OPINION
A jury convicted Jeffery Howard Sheppard of the aggravated assault of Allen Jones and the aggravated robbery of Carl Conedera; the jury assessed punishment at twenty years' confinement and sixty years' confinement, respectively. In eight issues, appellant complains the trial court erred by: denying his motion to suppress written statements and evidence of identification; overruling his objection to a voir dire question and ending questioning of prospective jurors; overruling appellant's objections to certain of the State's questions in the guilt/innocence phase; and overruling appellant's objections to the State's references to appellant's failure to testify in the guilt/innocence and punishment phases. For the reasons below, we resolve appellant's issues against him and affirm the trial court's judgment.
I. FACTUAL AND PROCEDURAL BACKGROUND
Appellant does not challenge the sufficiency of the evidence. However, a brief recitation of some the evidence in the record is necessary to place appellant's issues in context. On June 10, 2003, during the day, appellant blew out the tires of his car and parked in front of Yvonne Lord's house. Lord and George Weldon were outside remodeling the house. Weldon told appellant and his passenger, Rudy Rodriguez, that they could park the car in a lot beside the house. Weldon and Long locked the house and left. Appellant and Rodriguez kicked in the door of Lord's house and loaded Lord's construction tools in the back of a truck owned by Jesus Vargas, Lord's neighbor. One of the tools taken was a claw hammer. They asked Vargas to take them to another location. Vargas refused and went into his house to call the police. Vargas saw appellant trying to break the truck's steering column with pliers. Appellant and Rodriguez then went to a Pulte Homes construction site farther down the street, where salesman Carl Conedera was working inside a trailer. Appellant hit Condera in the head and demanded his money. Conedera fell on the floor, and appellant picked up a laptop and hit Conedera repeatedly in the head. Appellant took Conedera's cell phone. Just as appellant was leaving the trailer, Allen Jones, another Pulte employee, drove up. Appellant approached Jones and hit him in the arm and head with a claw hammer. Appellant then drove away in Conedera's car, in which Conedera had left his wallet. Both Conedera and Jones were seriously injured. Six days later, police detective Richard Duggan found Conedera's car in an apartment parking lot. Duggan saw appellant, recognized him by his description, and questioned him. Appellant then ran away, but Duggan apprehended him and arrested him for evading arrest. Duggan took appellant to the police station, where he advised him of his Miranda rights. Duggan and police detective William Smith questioned appellant. Appellant signed two written statements implicating himself in the crimes, but laying the blame on Rodriguez for the attacks on Conedera and Jones. In trial court cause number F03-52653-SL, appellant was indicted for unlawfully and intentionally, knowingly, and recklessly causing bodily injury to Jones by striking him with a hammer, a deadly weapon. In trial court cause number F03-52654-SL, appellant was indicted for unlawfully, while in the course of committing theft (of Conedera's wallet and its contents, his cell phone, and his car), intentionally and knowingly causing serious bodily injury by striking Conedera with a hammer, a deadly weapon. In an "omnibus pretrial motion," appellant requested a hearing on identification and the voluntariness and admissibility of his oral and written statements pursuant to Jackson v. Denno, 378 U.S. 368 (1964). At the pretrial hearing, there was testimony regarding the witnesses' identification of appellant by a photo array. In addition, the State sought to admit appellant's written statements, but said it did not intend to offer any oral statements. Appellant did not testify at the hearing. At the conclusion of the hearing, the trial court orally ruled the written statements admissible. Subsequently, outside the presence of the jury, the trial court heard more identification testimony. After a trial, a jury convicted appellant of both charged offenses. Appellant then timely perfected his appeal.II. PRETRIAL
In his first and fourth issues, appellant addresses issues raised in his pretrial motion.A. Statements
Appellant's first issue states, "The trial court erred in denying appellant's motion to suppress evidence of appellant's written statements."1. Oral Statements
In his argument under his first issue, he contends his oral statements to Duggan were inadmissible. However, because the State did not offer any oral statements into evidence, the admissibility of these statements is moot. See Herron v. State, 86 S.W.3d 621, 628 (Tex.Crim.App. 2002). Accordingly, we need not discuss them.2. Written Statements
a. Standard of Review and Applicable Law We review a trial court's ruling on a motion to suppress evidence by giving almost total deference to the trial court's determination of historical facts and reviewing de novo the trial court's application of the law to those facts. Carmouche v. State, 10 S.W.3d 323, 327 (Tex.Crim.App. 2000) (citing Guzman v. State, 955 S.W.2d 85, 88-89 (Tex.Crim.App. 1997)). When, as here, the trial court does not make explicit findings of historical facts, we assume that the trial court made implicit findings of fact supported in the record that buttress its conclusion, and we review the evidence in a light most favorable to the trial court's ruling. Id. at 327-28 (citing Guzman, 955 S.W.2d at 89). At a suppression hearing, the trial judge is the sole and exclusive trier of fact and judge of the credibility of the witnesses and their testimony. Maxwell v. State, 73 S.W.3d 278, 281 (Tex.Crim.App. 2002). If an appellant's statement was involuntarily obtained, it is error to admit either the statement or evidence obtained from it at trial. Sossamon v. State, 816 S.W.2d 340, 345 (Tex.Crim.App. 1991) (citing Jackson, 378 U.S. at 385-86).b. Discussion
First, appellant argues his two written statements were involuntary because the record shows he told Duggan he had bought crack cocaine several days before his arrest and Duggan suspected from appellant's red eyes that he was either intoxicated, under the influence of a controlled substance, or had allergies. Although no inquiry was made, appellant argues these facts "leave a question mark as to the reliability, validity[,] and voluntariness" of his written statements. In the first of his two written statements made on the day of his arrest, appellant stated that he bought some crack "about a week after" taking Conedera's car. At the suppression hearing, Duggan testified he understood that appellant "meant several days prior to the arrest." After asking Duggan about the circumstances of appellant's arrest, appellant's counsel asked Duggan, "Did you at any point smell any alcohol or drugs, smell any alcohol or have any indication that Mr. Sheppard had been using drugs at this point of contact?" Duggan replied, "At that point, no. Not immediately, no." The following exchange occurred:[Counsel]: But you had some things later that made you suspect that he was either — he had either been drinking alcohol or he was on drugs that day?
[Duggan]: Later on during the day, that was a possibility, just because his eyes.
[Counsel]: What made you think that?
[Duggan]: His eyes were a little red.
[Counsel]: And what is that frequently a sign of?
[Duggan]: Intoxication or
[Counsel]: Or — I'm sorry.
[Duggan]: — or drugs, or it could be an allergy.
[Counsel]: But you didn't ask him about any of those, did you?
[Duggan]: No.Later, Duggan replied in the negative when asked by the State," And did you ever suspect that Mr. Sheppard didn't have the normal use of his mental or physical faculties[?]" Additionally, Smith, who interviewed appellant for "probably more than ten minutes" while Duggan took a break, testified that he did not notice anything about appellant that indicated the possible use of alcohol or drugs, nor did Duggan "mention any concerns he had on those lines." Even if appellant were under the influence of intoxicants at the time of his statements, this would not automatically render the statements involuntary. See Nichols v. State, 754 S.W.2d 185, 190 (Tex.Crim.App. 1988), overruled on other grounds by Green v. State, 764 S.W.2d 242, 247 n. 2 (Tex.Crim.App. 1989). Intoxication, while relevant, is not per se determinative of the voluntariness of a statement. See id. The central question is the extent to which appellant was deprived of his faculties due to the intoxication. Id. If an appellant's intoxication rendered him incapable of making an independent, informed choice of free will, then his statement was given involuntarily. Id. Duggan testified he did not suspect appellant did not have the normal use of his mental or physical faculties. See Jones v. State, 944 S.W.2d 642, 651 (Tex.Crim.App. 1996) (evidence included interviewers' statements that accused "did not appear to them to be intoxicated"); Garcia v. State, 919 S.W.2d 370, 387 (Tex.Crim.App. 1994) (same). Appellant does not point to any evidence that any intoxication deprived him of his faculties. We conclude the evidence supports the trial court's implied finding that any intoxication did not render appellant incapable of making an independent, informed choice of free will such that his statement was involuntary. Lastly, appellant argues his statements were involuntary because they were obtained by an implied promise of a benefit to appellant not to charge him with capital murder. Appellant points to the following evidence to support his argument: (1) Duggan testified that he told appellant there was "a possibility" appellant would be charged with capital murder, that "we had a victim who was seriously injured and that he could die"; and (2) Smith testified he explained to appellant "right now that the charge he was looking at was an aggravated assault offense, but with the injuries that the complainant has sustained it could become a homicide." A statement obtained by a promise of a benefit is involuntary, and therefore inadmissible, when the promise is: (1) of some benefit to the defendant; (2) positive; (3) made or sanctioned by a person in authority; and (4) of such character as would be likely to influence the defendant to speak untruthfully. Sossamon, 816 S.W.2d at 345; Washington v. State, 582 S.W.2d 122, 124 (Tex.Crim.App. 1979); Fisher v. State, 379 S.W.2d 900, 902 (Tex.Crim.App. 1964). In addition to the above-detailed testimony, the record shows Duggan testified he did not promise appellant anything. When Duggan was asked if he said "something to the effect that if someone will go ahead and admit their involvement you will put in a good word for them with the DA" he denied saying "anything like that at all." Smith also denied making any statements "along the lines of if he goes ahead and tells his story that perhaps the DA will go easier on him." None of the statements in the record rise to a level of a "positive promise" of a benefit by a person in authority of such character as would be likely to influence the defendant to speak untruthfully. See Washington, 582 S.W.2d at 124; Fisher, 379 S.W.2d at 902; see also Garcia, 919 S.W.2d at 388 (no error in admitting confession when promises not specific). Rather, the record shows the statements appellant relies on were statements of fact regarding the charged offenses. Accordingly, we reject appellant's argument that his statements were rendered involuntary by an implied promise of a benefit. Having rejected appellant's arguments that his statements were involuntary and therefore inadmissible, we resolve his first issue against him.
B. Identification
In his fourth issue, appellant contends the trial court erred in denying his motion to suppress his identification due to tainted photo lineup procedures. He argues specifically that the pretrial identification procedure was so unnecessarily suggestive and conducive to mistake as to violate due process and should not have been used at trial.1. Standard of Review and Applicable Law
We apply a de novo standard of review for such mixed questions of law and fact that do not turn on an evaluation of credibility or demeanor. Loserth v. State, 963 S.W.2d 770, 772-73 (Tex.Crim.App. 1998). A pretrial identification procedure may be so suggestive and conducive to mistaken identification that subsequent use of that identification at trial would deny the accused due process of law. Barley v. State, 906 S.W.2d 27, 32-33 (Tex.Crim.App. 1995). We conduct a two-step analysis to determine the admissibility of the in-court identification: (1) whether the out-of-court identification procedure was impermissibly suggestive, and if so, (2) whether that suggestive procedure gave rise to a substantial likelihood of irreparable misidentification. Id. at 33. An analysis under these steps requires an examination of the totality of the circumstances surrounding the particular case and a determination of the reliability of the identification. Id. Appellant has the burden to show by clear and convincing evidence that the pretrial identification procedure was impermissibly suggestive. See id. at 33-34.2. Discussion
The photographic array consisted of six photographs, one of which was of appellant, who is in his early twenties, is bald, and was pictured without a shirt. The other photographs show men with hair, including facial hair. Only one other man is shirtless. Three other photographs show men in their thirties or forties, and two other photographs show men in their late teens or twenties. Appellant's photograph has three strips of paper on the back. Four pictures have one strip, and one picture has two strips of paper on the back. At the pretrial hearing, Duggan and Smith testified that Weldon, Conedera, and Vargas identified appellant, and their names are written on the three strips of paper on appellant's photograph. Jones also identified appellant, and his signature is apparently written on the photograph itself. Weldon tentatively identified appellant's photograph; he was "90%" sure of his identification. Long was unable to identify anyone in the photographs. The pretrial hearing was continued to permit identification testimony by the victims. At trial, outside the presence of the jury, Conedera, Jones, and Vargas identified appellant present in the courtroom. They each testified that they were shown a stack of photographs and identified appellant and that they identified appellant because they saw him on June 10. Weldon could not identify appellant in the courtroom. Long did not testify outside the presence of the jury. Appellant objected that the photographic array was impermissibly suggestive, "that taints not only their out-of-court identification but in-court identification as well," and he asked the court the suppress "that." The trial court overruled appellant's objection. We have reviewed a copy of the photographic array shown to the witnesses. Although the copies of appellant's photograph and the sixth person are dark, appellant makes no specific complaint an appeal as to any particular photograph. Appellant makes no complaint that skin tone or facial features are not similar. The men in the photographs appear comparable in age and appearance, including close-cropped hair. While the better practice in a pretrial identification procedure may be to use as many individuals as possible who fit the defendant's description, it is not essential that all the individuals be identical in appearance. Buxton v. State, 699 S.W.2d 212, 216 (Tex.Crim.App. 1985). Appellant does not "[stand] out as the likely candidate among the others in the lineup." Cooks v. State, 844 S.W.2d 697, 732 (Tex.Crim.App. 1992). We conclude the photographic array was not impermissibly suggestive because of age, appearance, or dress. As to the strips of paper on the back of the pictures, Duggan testified that a strip of paper was placed on the back of each photograph when the lineup was prepared. When asked if Vargas, whose name is on the third strip of paper, would have felt the difference in the number of strips, Duggan replied he had "no idea" but it was possible depending on how Vargas held the pictures. Another detective, Leticia Corral, testified that she administered the array to Vargas. She was asked if she could "tell that there [was] something on the back of" appellant's photograph. She replied that she could if she "rub[bed]" her fingers on it. There was no testimony that any witness actually noticed the strips or the difference in the number of strips. We conclude the photographic array was not impermissibly suggestive because of the strips of paper. Having rejected appellant's arguments, we conclude he failed to show by clear and convincing evidence that the pretrial identification procedure was impermissibly suggestive. Therefore, we need not consider whether those procedures created a substantial likelihood of misidentification. See Barley, 906 S.W.2d at 33. We resolve his fourth issue against him.III. VOIR DIRE
In issues two and three, appellant addresses issues raised in voir dire.A. Standard of Review
The trial court has broad discretion over the process of selecting a jury. Barajas v. State, 93 S.W.3d 36, 38 (Tex.Crim.App. 2002). Absent an abuse of discretion, we defer to the trial court's determination of the propriety of a particular voir dire question. Id. Moreover, the court may place reasonable limitations on the voir dire "'for various reasons, among them to curb the prolixity of what can become the lengthiest part of a criminal proceeding.'" Tamez v. State, 27 S.W.3d 668, 672 (Tex.App.-Waco 2000, pet. ref'd) (quoting Guerra v. State, 771 S.W.2d 453, 467 (Tex.Crim.App. 1988)). We review the propriety of such limitations under an abuse-of-discretion standard. Id.B. Commitment Question In his second issue, appellant contends the trial court erred in overruling his objection to the State's prohibited commitment question. Appellant complains of an exchange during the State's discussion of the elements of" aggravated robbery with a deadly weapon." After reading the indictment, the following exchange occurred:[State]: So what do we have to prove? . . . Deadly weapon. Anything in the way it was used or its intended use is capable of causing death or capable of causing bodily injury or death. Let's do some examples.
All right. Mr. Anthony Jones, you go out to the ballpark in Arlington and you see a Texas Ranger holding a baseball bat on the baseball field. What is the intended use of the baseball bat?
[Prospective Juror]: To hit the baseball.
[State]: Okay. Now let's say you get caught up here late. We keep you here late. All the other jurors leave because you're making some phone calls on your cell phone. I'm making up facts. You end up going to the parking garage and in the parking garage, Ms. Willbanks is there — actually, I will use me. I'm there in the parking lot and I hold a bat. And let's say she is with me, Ms. Willbanks is with me. I'm holding a bat and I say to you in a very menacingly manner, give me your wallet, give me all you have got, and I'm holding the baseball bat like this. Am I playing baseball?
[Prospective Juror]: No, sir.
[State]: How am I using that bat?The trial court overruled appellant's objection "as being an improper commitment question."
1. Applicable Law
An attorney cannot attempt to bind or commit a prospective juror to a verdict based on a hypothetical set of facts. Standefer v. State, 59 S.W.3d 177, 179 (Tex.Crim.App. 2001). Commitment questions are those that commit a prospective juror to resolve, or to refrain from resolving, an issue in a certain way after learning a particular fact, and often ask for a "yes" or "no" answer. Id. An open-ended question can be a commitment question if the question asks the prospective juror to set the hypothetical parameters for his decision-making. Id. at 180.2. Discussion
The State argues that it was using a hypothetical fact situation to explain how an object that is not a deadly weapon by design can become a deadly weapon in the manner of its use or intended use. See Tex. Pen. Code Ann. § 1.07(a)(17)(B) (Vernon Supp. 2004-05). While it is improper to inquire how a prospective juror would respond to particular circumstances as presented in a hypothetical question, it is proper to use hypothetical fact situations to explain the application of the law. Cuevas v. State, 742 S.W.2d 331, 336 n. 6 (Tex.Crim.App. 1987). We conclude that the State was using a hypothetical fact situation in the challenged question to explain the application of the law of deadly weapons, rather than asking how prospective jurors would respond to particular circumstances. See id. Accordingly, the challenged question was not a commitment question. We resolve appellant's second issue against him.C. Time Limitation Enforcement
In his third issue, appellant contends the trial court erred in cutting off his counsel's voir dire questioning of prospective jurors such that he was denied due process and a fair trial.1. Applicable Law
When the parties conduct a voir dire examination of the venire panel collectively, an appellant demonstrates that the court's limitation of voir dire was an abuse of discretion by showing: (1) counsel did not attempt to prolong the voir dire; and (2) counsel was prohibited from asking proper voir dire questions. Tamez, 27 S.W.3d at 672. When counsel is not permitted to address particular questions to individual members of the venire, the appellant must also show that a panelist whom counsel was prohibited from questioning actually served on the jury. Id. To decide whether counsel attempted to prolong the voir dire, we review the record to see if the questions counsel posed were "'irrelevant, immaterial[,] or unnecessarily repetitious.'" Id. (quoting Ratliff v. State, 690 S.W.2d 597, 599 (Tex.Crim.App. 1985)). As a part of this analysis, we examine whether counsel appropriately budgeted the time allotted for voir dire. Id. (citing Whitaker v. State, 653 S.W.2d 781, 781 (Tex.Crim.App. 1983)).2. Discussion
The record shows that the trial court told counsel before voir dire that it would impose a one-hour time limit on each side. Counsel's voir dire questioning constituted forty-seven pages of the record, of which twenty-six pages, or just over one-half of his time, were spent asking prospective jurors if they could consider probation. Counsel asked questions regarding reasonable doubt and the law of parties. After receiving a ten-minute warning, counsel asked questions regarding the privilege against testifying, employment by law enforcement, knowledge of parties and witnesses in the case, and whether individual jurors had been crime victims. When told time had expired, counsel asked for, and was denied, additional time. Counsel testified that he was prohibited from asking questions (1) to jurors who indicated they had been victims of crimes similar to the indicted offenses, and (2) to the panel whether they knew any Dallas law enforcement or judicial personnel. The trial court stated it denied the request for additional time because it did not believe counsel used his time efficiently, he was given "plenty of notice he had time," and he was questioning jurors that had already disqualified themselves "for long periods of time." On appeal, appellant does not challenge the trial court's statement as to his counsel's use of time. Moreover, we conclude counsel did not budget his time appropriately by focusing on one issue at the expense of other issues. Even though counsel's unasked questions were proper, "a skilled lawyer can always find more questions that are proper to ask prospective jurors." Splawn v. State, 949 S.W.2d 867, 872 (Tex.App.-Dallas 1997, no pet.). The fact that counsel can think of one more proper question should not transform a reasonable time limit into an unreasonable one. Id. Accordingly, we cannot conclude that counsel did not attempt to prolong the voir dire. Cf. Rios v. State, 4 S.W.3d 400, 402 (Tex.App.-Houston [1st Dist.] 1999), pet. dism'd, 122 S.W.3d 194 (Tex.Crim.App. 2003) (per curiam) (no error when unasked questions were proper and counsel did not spend time "rambling" or "lecturing to the jury"). Appellant does not argue on appeal, and the record does not show, that he was precluded from examining prospective jurors who actually served on the jury. See Tamez, 27 S.W.3d at 672. Because appellant has failed to show an abuse of discretion, we resolve his third issue against him.IV. TRIAL
In issues five through eight, appellant challenges certain trial court rulings in the guilt/innocence and punishment phases of the trial.A. Evidentiary Rulings
1. Hypothetical Question In his fifth issue, appellant contends the trial court erred in overruling his objection to a hypothetical question propounded by the State to Duggan during the guilt/innocence stage. Specifically, the State asked Duggan if he talked to nurses at the hospital about Conedera and ascertained that there was "a concern that he was going to die." The State then asked, "If he had died, what would have happened to the investigation?" Appellant's counsel said, "Object to that, Your Honor. Hypothetical." The trial court overruled the objection. The State then asked Duggan," What happens to the investigation if he dies?" Duggan responded," At that point it becomes a capital murder investigation and it would have been turned over to the Homicide Unit."a. Standard of Review
We review a trial court's decision to admit or exclude evidence under an abuse of discretion standard. Willover v. State, 70 S.W.3d 841, 845 (Tex.Crim.App. 2002). We reverse only when the trial court's decision was so clearly wrong as to lie outside the zone of reasonable disagreement. Id. We uphold the trial court's ruling if it was correct on any theory reasonably supported by the evidence and applicable to the case. Id.b. Discussion On appeal, appellant cites Miller-El v. State, 782 S.W.2d 892 (Tex.Crim.App. 1990), and his entire argument as to error is: "Testimony of future hardship was not admissible as being speculative." In Miller-El, the objected-to evidence concerned a doctor's testimony in the punishment phase regarding an attempted capital murder victim's future hardship as a paraplegic. Id. at 894-95. Responding to the State's argument that the "nature and extent of a victim's injury may always be established at the guilt stage of trial in a prosecution for attempted murder," the court of criminal appeals agreed that "the bare fact of Hall's paralysis was admissible at the guilt stage of appellant's trial as probative of Miller-El's intent to kill both Walker and Hall." Id. at 895. The court of criminal appeals continued, "We cannot agree, however, that Harrison's testimony regarding Hall's future hardship as a paraplegic had any tendency to make more or less probable the existence of any fact of consequence at the guilt stage of trial." Id. (citing then-applicable rule of criminal evidence 401). Assuming without deciding that appellant's complaint on appeal comports with his objection in the trial court, we conclude that the State's question pertained to "the bare fact" of Conedera's possible death, not the "medical forecast of the victim's future health" as in Miller-El. Id. at 893. We conclude that this case is distinguishable from the testimony found objectionable at the guilt phase in Miller-El. Concluding appellant has failed to show an abuse of discretion, we resolve appellant's fifth issue against him.2. Officer's Experience
In his sixth issue, appellant contends the trial court erred in overruling his objection to the following exchange between the State and Duggan during the guilt/innocence phase, during discussion of appellant's second written statement, in which he admitted entering the trailer but blamed Rodriguez for the attack on Conedera:[State]: So, Detective Duggan, in your experience, is it unusual for people to give you voluntary statements to minimize —
[Counsel]: I'm going to object to that, Your Honor, as irrelevant in this case, what happens in other cases.The trial court overruled the objection. Duggan testified that it was "common" for persons to "minimize their involvement in the offense." On appeal, citing Oregon v. Elstad, 470 U.S. 298 (1985), appellant argues that this question was "highly speculative" and "without substance to be confirmed or denied as an expert opinion based on some empirical study," and there is no "predicate to this type of inquiry." Elstad concerned the administration of Miranda warnings. We conclude that appellant's argument on appeal does not comport with his objection in the trial court. Therefore, appellant has not preserved any issue for review. See Massey v. State, 933 S.W.2d 141, 157 (Tex.Crim.App. 1996). We resolve appellant's sixth issue against him.
B. Failure to Testify
In his seventh and eighth issues, appellant contends the trial court erred in overruling his objections to the State's references to appellant's failure to testify in the guilt/innocence and punishment stages. In closing argument of the guilt/innocence phase, the State argued:How does Allen Jones feel? How do you feel when you roll down your Suburban and the next thing you know you're getting beat with a hammer? But he saw that face.
. . .
As much as you can't know why he would do it, whatever evil lies —
The trial court overruled appellant's objection "as being a comment on defendant's failure to testify." The State then continued argument by stating," As much as you don't know why someone would do this, whatever evil lies in him, it came out that day and he tried to seriously harm Allen Jones. . . ."In closing argument of the punishment phase, the State argued:
So I'm going to smash this boy, this kid, this young man doing what he is supposed to be doing, I'm going to smash him over the head with a hammer and leave him to die.What about Allen Jones? What was he doing wrong that day? Why did Allen Jones deserve to have a hammer smashed across his arms and across his head? What was driving Jeffery Sheppard that day? I don't know. But what acts he perpetrated that day were pure evil. I don't have anything on paper to tell me about Jeffery Sheppard before June 10th of 2003. The trial court overruled appellant's objection "as commenting on the defendant's failure to testify." The State continued its argument by stating, "He doesn't have a criminal record. But what he did on June 10th of 2003, we know what happened that day and it doesn't get any worse for an aggravated robbery."