Full opinion text
OPINION BAIRD, Judge. Appellant was convicted of capital murder pursuant to Tex.Penal Code Ann. § 19.03(a)(6). The jury affirmatively answered the punishment issues submitted pursuant to Tex.Code Crim.Proc.Ann. art. 37.071(b). Punishment was assessed at death. Id., at (e). Appeal to this Court is automatic. Id., at (h). Appellant raises twenty-one points of error. We will affirm. I. On September 12, 1990, at approximately 8:00 p.m., members of the Beaumont Fire Department responded to a fire alarm in a building located at 3420 Fannin Street in Beaumont. John Showman, a Captain with the Beaumont Fire Department, entered the building and located the alarm in the waiting room of a massage therapy office belonging to one of the victims. Showman noticed the air in the room appeared hazy and furniture was strewn around the room as if there had been a struggle. He also noticed a bloodstained, partially broken window opening into another room. He then observed one of the victims, Katherine Thompson, lying injured on the waiting room floor and called to other fire fighters for assistance. As fire fighters rendered medical aid to Thompson, another fire fighter, Mike Randall, peered through the broken window and observed the second victim, Shelly Cutler, sitting on the floor in the second room, injured. Finding the door to the room locked, Randall climbed through the broken window and assessed Cutler’s condition. He observed Cutler had been shot in the head. Both victims were transported to a local hospital and shortly thereafter died of their injuries. While investigating the crime scene, police recovered Thompson’s appointment book and a patient application form'. The appointment book indicated Thompson had a 7:30 appointment with Cutler and a 6:30 appointment with a Ricky Dennis. The book also contained a Lumberton telephone number for Dennis. The patient application form listed a Ricky Dinkins along with a different telephone number and a place of employment at the American Valve and Hydrant Company. Because of the similarity of the names, the police attempted to contact the parties listed but discovered both telephone numbers were out of order. The next day, September 13, Mike Sheffield, a Beaumont police investigator, and Robert Hobbs, a Jefferson County District Attorney investigator, went to appellant’s place of employment, American Valve and Hydrant Company, in Beaumont and questioned appellant. In the course of the questioning, the detectives sought consent to search appellant’s car but appellant refused. Appellant denied knowing Thompson and denied being in Beaumont the night of the offense. At some point, appellant mentioned he “wanted to talk to someone” and the detectives ceased their questioning. They then arrested appellant on an outstanding misdemeanor warrant and transported him to the Jefferson County Jail. Later that afternoon, while the detectives were attempting to obtain a search warrant for appellant’s car, appellant contacted Sheffield and gave his written consent to search. Appellant also stated that the detectives would find a .357 revolver in the trunk. A search of the car uncovered various items, including a .357 revolver and two boxes of ammunition. During the morning of September 14, Sheffield and Hobbs interrogated appellant in the Jefferson County District Attorney’s Office. During the interrogation, appellant admitted being at the crime scene on the night of the offense. Appellant stated he had attempted to meet with Thompson to discuss some bad checks appellant had written, but was unable to do so because the building was locked. He then heard a fire alarm and observed a black male exit the building and run away. Appellant also stated he had purchased a .357 revolver from Leger’s Pistol and Rifle Range in Beaumont. The detectives then obtained appellant’s written consent to search various locations, including his locker at work and his home in Sour Lake. Appellant accompanied the detectives as they executed the searches. While searching appellant’s home the detectives seized a pair of appellant’s blue jeans which appeared to have blood stains on the legs and cuffs. Before returning to Beaumont, the detectives escorted appellant to his grandmother’s house where appellant spoke with his grandmother. Upon returning to Beaumont, the detectives again interrogated appellant. During the interrogation, appellant asked to call his mother in Atlanta, Georgia and the officers complied with the request. After appellant finished speaking with his mother, the detectives appraised him of the evidence linking him to the offense. At this point, appellant agreed to provide a written statement on the condition he could explain the stresses he was under. In his statement, appellant stated he was twenty-seven years of age and worked as an assembly specialist at American Valve and Hydrant. He professed that he was under considerable stress because of the recent break up of a personal relationship as well as a shoulder injury from work which required frequent medication. Because of his injury, appellant believed his employer was harassing him in an attempt to fire him. He further stated he was having severe financial difficulties and had bounced many checks. On the day of the offense, appellant left work around 1:15 p.m. to go to therapy. He left the doctor’s office around 3:00 p.m. or 3:30 p.m. and called his grandmother. After that, appellant went to his step-sister’s home to help her move. At 6:00 p.m., appellant left to go to Thompson’s office for a 6:30 p.m. appointment which he had made under the name Ricky Dennis. Appellant arrived around 6:45 p.m. or 7:00 p.m. Before entering the building, appellant placed a .25 caliber automatic and a .357 revolver inside a sling he wore for his injured shoulder. Appellant entered the building and met with Thompson in her office. After talking for a while, the two began to argue. As the argument progressed, Thompson pushed appellant towards the door into the waiting room where another woman sat. During the altercation, Thompson struck appellant’s injured arm, hurting him. At one point during the altercation, the .25 caliber automatic fell out of appellant’s sling. Appellant retrieved the gun, fired a shot, and the gun jammed. The .357 also fell out of appellant’s sling and hit the floor. Appellant retrieved the .357 from the floor but maintained he did not remember any other events except for a fire alarm sounding as he ran out the doorway leading into the hall. In the parking lot, appellant’s car would not start and appellant had to raise the hood and hit a reset button on the steering column. He then proceeded to drive to his grandmother’s house in Sour Lake. At one point, appellant noticed he was no longer wearing his sling. While driving along the highway, he emptied the bullets from the .357 and threw them out the window. Appellant remained at his grandmother’s house until 10:00 p.m. or 10:15 p.m. and then drove to his step-sister’s house where he remained until 11:00 p.m. Upon arriving home, appellant walked to a pond behind his house and attempted to unjam the .25 caliber automatic. The gun came apart and appellant threw it into the pond. He then went to his room, took some pain medicine, and fell asleep. The next day, before work, appellant drove to his grandmother’s house for coffee and took more pain medication. He then went to work where he was later met by Sheffield and Hobbs and subsequently arrested on a hot cheek warrant. Appellant was indicted for capital murder pursuant to Tex.Penal Code Ann. § 19.03(a)(6)(A). At trial, the State presented testimony by William Fincher, the owner of a janitorial service who was at 3420 Fannin Street around 7:30 p.m. on September 12, looking for an employee. Fincher testified he saw appellant looking under the hood of an old model yellow Chevrolet. Shortly thereafter, appellant started the car and drove away. Louis Leger owner of Leger’s Pistol and Rifle Range testified that on September 11, he sold appellant a .357 revolver and two boxes of ammunition, one of .38 caliber bullets and the other of .357 caliber. Matching the serial number on the .357 with the notation in his records, Leger identified the .357 seized in the search of appellant’s car as the weapon sold to appellant. William Showman and Mike Randall testified concerning the circumstances in which they discovered the victims while answering a fire alarm. Dr. Thomas J. Molina, the pathologist who performed the autopsies, testified Thompson suffered two gunshot wounds, one to her head and the other to her abdomen. Both were fatal. Molina further testified that the stippling on the body indicated that both shots were fired at extremely close range, the abdomen wound resulting from a contact shot. The autopsy of Cutler indicated she died of a single gunshot wound to the head. William Tatum, a sergent in the identification section of Beaumont Police Department, testified the police recovered an arm sling from the crime scene as well as an appointment book and a client information sheet with appellant’s name and place of employment. The police also recovered four lead slugs, either .38 or .357 caliber, and a number of shell casings and lead bullet fragments. Also recovered was a .25 caliber bullet. Tatum further testified that based on the entry point in the wall made by one of the slugs, he surmised Thompson had been either kneeling or sitting when she had been shot in the head. He also testified that a lead slug was recovered from the doorknob of the door to the room where Cutler was discovered. Ray Klein, a firearms examiner for the Houston Police Department, testified he conducted ballistics tests on the .357 revolver and the ammunition seized from appellant, as well as the lead slugs, casings and bullet fragments recovered from the crime scene. By comparing the rifling on ammunition test fired in appellant’s .357 revolver with the rifling on the slugs recovered from the crime scene, Klein concluded the slugs recovered at the crime scene were fired from appellant’s .357 revolver. Richard Reem, a forensic serologist for the Federal Bureau of Investigation testified he analyzed appellant’s blood stained blue jeans and a blood sample taken from Thompson. Based on the sequence of enzymes in Thompson’s blood sample, PGM 1 plus, haptoglobin 2 and GC 1-S, Reem determined that the blood on appellant’s pants was consistent with - Thompson’s blood type. Reem explained that only one person in twenty has the same enzyme sequence in their blood. In his case-in-chief, appellant presented seven witnesses, each of whom testified essentially that appellant was not aggressive or violent. The jury found appellant guilty of capital murder. During the punishment phase, the State presented only two witnesses, Sgt. Tatum, and Detective Hobbs. Tatum testified concerning the details of the murders based on his examination of the crime scene. Tatum testified Thompson was first shot in the abdomen just outside the doorway from the inner office to the waiting room. Comparing the entrance and exit wound in Thompson’s body to the position of the bullet entry point in the wall, Tatum surmised Thompson was doubled over when appellant shot her in the abdomen. Tatum further testified that based on the position of one of the bullet entry points in the wall, thirty-one inches off the ground, in relation to Thompson’s head wound, appellant shot Thompson a second time as she was either sitting or kneeling on the floor. Tatum also testified concerning the details of Cutler’s murder. Tatum testified the bullet in the doorknob of the room in which Cutler was found was fired after Thompson was shot. He stated this revealed appellant’s attempt to get to Cutler after she locked herself in the room. A wicker shelf which covered an unused receptionist window looking into the room had been removed and the window glass broken. Tatum speculated the blood covering the unbroken glass came from appellant’s hands as he attempted to break the window. Tatum also testified the telephone in the room was off the hook when Cutler was discovered, indicating she was attempting to make a telephone call before being shot. Tatum concluded it was possible for someone to reach through the window and shoot Cutler as she crouched on the floor. Detective Hobbs testified about appellant’s demeanor during the investigation. He stated appellant was emotionless when initially interrogated and showed no concern that he was suspected in a capital murder. Further, appellant appeared to be unconcerned during much of his subsequent interrogations. In his defense, appellant presented several character witnesses. One witness, a Jefferson County Sheriffs Department lieutenant assigned to jail duty testified he was acquainted with appellant from his year and a half incarceration pending trial and, during that time, appellant had no disciplinary problems. He further stated that appellant had, at one point, reported a possible jail break. Nine other witnesses also testified on behalf of appellant each testifying, in essence, that the murders were aberrations in appellant’s normally non-violent character. Further, each expressed the belief appellant was unlikely to commit future acts of violence. The jury affirmatively answered the three statutory punishment issues and the trial judge sentenced appellant to death. We now turn to appellant’s points of error. II. In his first two points of error, appellant contends the trial judge erred by refusing to set aside the indictment because it failed to allege the offense of capital murder. Specifically, appellant complains the indictment failed to assert a culpable mental state in alleging the second murder and therefore faded to allege a capital murder. The indictment read, in pertinent part: ... RICHARD EUGENE DINKINS ... did then and there intentionally and knowingly cause the death of an individual, KATHERINE THOMPSON, by shooting her with a deadly weapon, to wit: a firearm; and the said RICHARD EUGENE DINKINS did then and there cause the death of an individual, SHELLY CUTLER, by shooting her with a deadly weapon, to-wit: a firearm, and both of said murders were committed during the same transaction. In general, an indictment must plead every element which must be proven at trial. Whitehead v. State, 745 S.W.2d 374, 376 (Tex.Cr.App.1988) (citing Harrell v. State, 643 S.W.2d 686 (Tex.Cr.App.1982); and, Vinson v. State, 626 S.W.2d 536, 537 (Tex.Cr.App.1981)). Naturally, this includes the culpable mental state of the offense. Thompson v. State, 697 S.W.2d 413, 415 (Tex.Cr.App.1985). If an indictment fails to allege a culpable mental state for an offense, it is defective and is subject to a motion to quash. Id. See also, Swope v. State, 805 S.W.2d 442, 444 (Tex.Cr.App.1991). Nevertheless, we have consistently held the State is not required to allege the constituent elements of an offense constituting the aggravating feature of a capital murder, even in the face of a motion to quash. Barnes v. State, 876 S.W.2d 316, 323 (Tex.Cr.App.1994); Hathorn v. State, 848 S.W.2d 101, 108-109 (Tex.Cr.App.1992); Ramirez v. State, 815 S.W.2d 636, 642 (Tex.Cr.App.1991); Trevino v. State, 815 S.W.2d 592, 619 (Tex. Cr.App.1991); Beathard v. State, 767 S.W.2d 423, 431 (Tex.Cr.App.1989); Marquez v. State, 725 S.W.2d 217, 236 (Tex.Cr.App.1987); Hogue v. State, 711 S.W.2d 9, 14 (Tex.Cr.App.1986); Andrade v. State, 700 S.W.2d 585, 589 (Tex.Cr.App.1985); Hammett v. State, 578 S.W.2d 699, 708 (Tex.Cr.App.1979); and, Smith v. State, 540 S.W.2d 693, 697 (Tex.Cr.App.1976). Consequently, we hold that in the case presently before us, the indictment was not defective for failing to allege a culpable mental state of the second murder. Appellant’s first and second points of error are overruled. III. In his third point of error, appellant contends the jury charge erroneously authorized a conviction of capital murder without requiring that the second murder be committed intentionally or knowingly as required by § 19.03(a)(6). For the following reasons, we disagree. In contrast to the indictment, which serves a notice function to the defendant, the function of the jury charge is to instruct the jury on the law applicable to the case. Abd-nor v. State, 871 S.W.2d 726, 731 (Tex.Cr. App.1994); Benson v. State, 661 S.W.2d 708, 713 (Tex.Cr.App.1982); and, Williams v. State, 547 S.W.2d 18, 20, 22 (Tex.Cr.App.1977). Because the charge is the instrument by which the jury convicts, Benson, 661 S.W.2d at 715, the charge must contain an accurate statement of the law and must set out all the essential elements of the offense. Id., 661 S.W.2d at 713; and, Zuckerman v. State, 591 S.W.2d 495, 496 (Tex.Cr.App.1979). When we review a charge for alleged error, we must examine the charge as a whole instead of a series of isolated and unrelated statements. Holley v. State, 766 S.W.2d 254, 256 (Tex.Cr.App.1989); and, Inman v. State, 650 S.W.2d 417, 419 (Tex.Cr.App.1983). Capital murder and murder were defined in the abstract portion of the charge, but the application portion did not allege a culpable mental state for the second murder. The application portion permitted the jury to convict if it found appellant ... intentionally or knowingly cause[d] the death of KATHERINE THOMPSON, by shooting her with a deadly weapon, to-wit: a firearm; and the said [appellant] did then and there cause the death of an individual, SHELLY CUTLER, by shooting here with a deadly weapon, to wit: a firearm, and both of said murders were committed during the same criminal transaction, you shall find the defendant guilty of the offense of Capital Murder. The application portion permitted the jury to convict appellant of capital murder only if it found both killings were murders. “Murder” is a term of art which is defined in the Penal Code. See, § 19.02(a)(1); and, § 19.03. The abstract portion of the charge provided that definition. See, n. 5, supra. Thus, the jury was instructed that a person commits capital murder only if both killings were committed intentionally or knowingly. See, Vuong v. State, 830 S.W.2d 929, 941 (Tex.Cr.App.1992). Consequently, the jury charge was not defective. Appellant’s third point of error is overruled. IV. In his fourth and fifth points of error, appellant contends § 19.03(a)(6) is both unconstitutional on its face and as applied. Because we will only entertain challenges to the constitutionality of a statute as it applies to a particular defendant, McBride v. State, 862 S.W.2d 600, 610-611 (Tex.Cr.App.1993); and, James v. State, 772 S.W.2d 84, 91 (Tex.Cr.App.1989), vacated, 493 U.S. 885, 110 S.Ct. 225, 107 L.Ed.2d 178 (1989), affirmed, 805 S.W.2d 415 (Tex.Cr.App.1990), we need only address appellant’s latter point of error. Relying on First v. State, 846 S.W.2d 836 (Tex.Cr.App.1992), appellant contends § 19.03(a)(6) is unconstitutional because the statute, as incorporated in “the application paragraph of the charge did not allow the jury to find whether or not appellant actually committed the intentional or knowing [second] murder.” [Appellant’s Brief, pg. 20]. Appellant claims this violates the Eighth Amendment’s prohibition against the arbitrary and capricious application of the death penalty because it permits the imposition of a death sentence when the aggravating offense does not rise to an intentional murder. He further claims the statute is unconstitutionally vague because it can be interpreted to either dispense with the mens rea requirement for the second murder or to require both murders to be committed intentionally or knowingly. Much of appellant’s argument was addressed in our resolution of the third point of error. Although the application paragraph did not allege a culpable mental state with regard to the second murder, the application paragraph, as well as the definitional portion of the charge, required a jury to find that both killings were “murders” in order for the offense to be capital murder. The definitional portion of the charge defined “murder” as intentionally or knowingly causing the death of an individual. Thus, the charge did not permit the jury to convict appellant unless they found both killings were committed either intentionally or knowingly. See, Vuong, 830 S.W.2d at 941. Moreover, appellant’s reliance on First is misplaced because First addressed a punishment issue under art. 37.071. Id., 846 S.W.2d at 838. In First, the jury charge was defective because it did not permit the jury to consider the provocation of the second deceased, thereby preventing the jury from considering a mitigating circumstance. Id., at 842. In the instant case, the jury was instructed in the definitional portion that it was not to convict appellant of capital murder unless it first determined both murders had been committed intentionally or knowingly. Further, we find no merit in appellant’s vagueness claim because the Penal Code adequately limits those acts which constitute “murder.” The Code Construction Act provides that words having a technical or particular meaning must be construed according to that meaning. Tex.Gov’t Code Ann. § 311.011(b) (Vernon 1988). The Penal Code section which prohibits capital murder, § 19.03(a), further limits the kind of murder which may form the basis of a capital offense, namely, murder pursuant to § 19.02(a)(1). Finally, nowhere in our review of § 19.03(a)(l)-(a)(6) do we find an indication that any type of homicide other than murder under § 19.02(a)(1) will suffice to form the basis of a capital offense. Therefore, we hold § 19.03(a)(6) is not unconstitutionally vague for failure to specify a culpable mental state for the second homicide. Accordingly, appellant’s fourth and fifth points of error are overruled. V. In his sixth point of error, appellant contends he had the right to be tried pursuant to the amended version of art. 37.071, which was applicable to offenses committed after September 1,1991. He also contends in the seventh point of error that the trial judge erred in declaring a mistrial after learning the venire had been instructed pursuant to the amended version of art. 37.071(b). The offense for which appellant was charged allegedly occurred on September 12, 1990. During voir dire, the State and appellant discussed legal principles with the veniremembers based upon the amended version of art. 37.071 which applied only to offenses occurring after September 1, 1991. At one point in the proceedings, the State advised the trial judge that it believed any prosecution under the amended art. 37.071 would be void. Appellant expressed his desire to proceed under the amended statute and refused to consent to a mistrial. The trial judge then declared a mistrial over appellant’s objection. Following a second voir dire, appellant filed a motion to declare the pre-amended art. 37.071 unconstitutional and also elected to be tried under the amended art. 37.071. The trial judge denied appellant’s motion. Appellant re-urged Ms motion at the conclusion of trial and requested the jury be instructed according to the amended version of art. 37.071 but the trial judge again refused. Appellant concedes that our holding in Nichols v. State, 754 S.W.2d 185, 204 (Tex.Cr.App.1988), belies Ms claim that he had the right to elect to be prosecuted under the amended statute. He adds a constitutional dimension to Ms claim, however, by raismg an Equal Protection challenge under the Urnted States and Texas Constitutions. Appellant claims he was demed Equal Protection because he was demed the broader provisions of the amended statute wMch were available to those defendants who committed capital murder after September 1, 1991. We need only address appellant’s Federal claim because appellant failed to raise Ms State claim at trial. Under the Equal Protection Clause of the Fourteenth Amendment, when a classification does not implicate a “fundamental” right, or place a burden on a “suspect” class of persons, the proper standard for review is to determine whether there is a rational basis for the different treatment, which is to say, whether the classification bears a rational relationship to a legitimate state interest. City of Cleburne, Tex. v. Cleburne Living Center, 473 U.S. 432, 440, 105 S.Ct. 3249, 3254, 87 L.Ed.2d 313 (1985); Clements v. Fashing, 457 U.S. 957, 963, 102 S.Ct. 2836, 2843, 73 L.Ed.2d 508 (1982); City of New Orleans v. Dukes, 427 U.S. 297, 303, 96 S.Ct. 2513, 2516-2517, 49 L.Ed.2d 511 (1976); James v. State, 772 S.W.2d 84, 92 (Tex.Cr.App.1989); and, Clark v. State, 665 S.W.2d 476, 480-481 (Tex.Cr.App.1984). “Rational basis” review is highly deferential towards the States when economic or social legislation is at issue. Dallas v. Stanglin, 490 U.S. 19, 26-27, 109 S.Ct. 1591, 1594-1595, 104 L.Ed.2d 18 (1989); and, Cleburne, 473 U.S. at 440, 105 S.Ct. at 3254. Courts also defer to penal legislation. See, McGowan v. Maryland, 366 U.S. 420, 422-428, 81 S.Ct. 1101, 1103-1106, 6 L.Ed.2d 393 (1961). Accordingly, a reviewing court should not strike down a classification unless it is “based solely on reasons totally unrelated to the pursuit of the State’s goals and only if no grounds can be conceived to justify them.” Clements, 457 U.S. at 963, 102 S.Ct. at 2843. See also, John v. State, 577 S.W.2d 483, 485 (Tex.Cr.App.1979) (“A legislative body has a right to make a classification ... for the purpose of serving legitimate aims if the limits of the class are not unreasonable or arbitrary.”); and, Rotunda & Nowak, Treatise on Constitutional Law: Substance and Procedure, 2nd, § 18.3, p. 27 (1992). Neither the Supreme Court nor this Court has recognized criminal defendants in general as constituting a suspect class. Therefore, appellant’s claim is subject to rational basis review unless he shows he was deprived of a fundamental right when he was prosecuted under the pre-amended version of art. 37.071. We find no fundamental right at issue. Art. 37.071 was amended by the Legislature in light of Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989), in which the Supreme Court held art. 37.071, as applied to Penry, violated the Eighth and Fourteenth Amendments because it did not permit the jury to consider and give effect to evidence which mitigated against a sentence of death. See Id., 492 U.S. at 315-328, 109 S.Ct. at 2945-2952. Penry, however, did not wholly invalidate art. 37.071. Indeed, we have repeatedly rejected Penry challenges to the pre-amended art. 37.071, holding the statute permitted the jury to fully consider evidence which mitigated against the death penalty. See, Zimmerman v. State, 860 S.W.2d 89, 101-102 (Tex.Cr.App.1993); Gunter v. State, 858 S.W.2d 430, 445-447 (Tex.Cr.App.1993); Beavers v. State, 856 S.W.2d 429, 433 (Tex.Cr.App.1993); Delk v. State, 855 S.W.2d 700, 709 (Tex.Cr.App.1993); Robinson v. State, 851 S.W.2d 216, 236 (Tex.Cr.App.1993) (Op. on reh’g); Ex parte Harris, 825 S.W.2d 120, 122 (Tex.Cr.App.1991); Earhart v. State, 823 S.W.2d 607, 632-633 (Tex.Cr.App.1991); Lewis v. State, 815 S.W.2d 560, 567 (Tex.Cr.App.1991); Ex parte Ellis, 810 S.W.2d 208, 212 (Tex.Cr.App.1991); and, Ex parte Baldree, 810 S.W.2d 213 (Tex.Cr.App.1991). Thus, it is clear the Eighth Amendment is not violated by sentencing a convict under pre-amended art. 37.071 unless the jury is precluded from considering and giving effect to mitigating evidence. Satterwhite v. State, 858 S.W.2d 412, 425-426 (Tex.Cr.App.1993). In the instant ease, appellant does not contend, nor does the record suggest, the jury was unable to consider and give effect to his mitigating evidence under the statutory punishment issues which applied at the time of his trial. Consequently, we hold appellant’s right to Equal Protection under the Fourteenth Amendment was not violated by prosecuting him under pre-amended art. 37.071. We next move to appellant’s seventh point of error contending the trial judge erred by declaring a mistrial sua sponte after being notified the litigants had used erroneous legal principles during the voir dire. Although he concedes jeopardy had not attached at the time the judge declared the mistrial, appellant nevertheless contends no manifest necessity existed to justify a mistrial. We believe appellant’s legal analysis is incorrect. The doctrine of manifest necessity is inextricably fused with the concept of jeopardy and is based upon the principle that once a jury is impaneled and sworn, but for a few limited exceptions, a defendant has the right to have his guilt or innocence resolved by that particular jury. Oregon v. Kennedy, 456 U.S. 667, 671-672, 102 S.Ct. 2083, 2087, 72 L.Ed.2d 416 (1982); Arizona v. Washington, 434 U.S. 497, 503-507, 98 S.Ct. 824, 829-830, 54 L.Ed.2d 717 (1978); United States v. Jorn, 400 U.S. 470, 479-481, 91 S.Ct. 547, 554-555, 27 L.Ed.2d 543 (1971); and, United States v. Perez, 22 U.S. (9 Wheat.) 579, 6 L.Ed. 165 (1824). See also, Alvarez v. State, 864 S.W.2d 64, 65 (Tex.Cr.App.1993). Where, as in the instant case, the jury has neither been impaneled nor sworn, jeopardy principles do not prevent a trial judge from declaring a mistrial. See, Fields v. State, 627 S.W.2d 714, 720 (Tex.Cr.App.1982). Appellant’s sixth and seventh points of error are overruled. VI. In his eighth point of error, appellant contends the trial judge erred in restricting the voir dire examination of a venireman concerning reasonable doubt. During individual voir dire of venireman Smith by defense counsel, the following exchange occurred: [Appellant]: I think the Court will instruct you — now have a definition of reasonable doubt. We haven’t for a long time, but last November the Court of Criminal Appeals gave us a definition that includes this statement. A reasonable doubt is the kind of doubt that would make a reasonable person hesitate to act in the most important of his affairs. Okay? [Venireman]: (Nodding head) Q: Would you consider sitting on the jury in a capital murder case the most important of your affairs? A: Yes, I guess. Q: That is. That’s the most important kind of— A: Um hum. Q: —jury service you can render. So if you have the kind of doubt at the punishment phase of a trial that would cause you to hesitate to answer those questions yes, how are you going to answer them? A: Be no. Q: Okay. At the punishment phase of this trial, if you have the kind of doubt that would make you hesitate to answer those questions yes, what would your oath require you to do? [The State]: I’ll object to that, Your Hon- or. His oath does not require him to not hesitate to answer the question. [The Court]: Sustain the objection. [Appellant]: At the conclusion of this juror, could I read my questions into the record again, Your Honor? [The Court]: Sure. [Appellant]: Okay. In a hearing following the examination of venireman Smith, defense counsel contended his questioning of Smith was proper. [Appellant]: Okay. Your Honor, the prosecutor has asked almost all of the potential jurors that if the State proves it to them beyond a reasonable doubt, they are going to answer these questions yes, and if they don’t prove it to them, are they going to answer them no. My questions deal with the definition of reasonable doubt. And under the law, and I believe the Court will instruct them that if they have a doubt that would make a reasonable person hesitate to answer those questions yes, then their oath requires them to answer no. And that’s what I’d like to ask this juror about is if they had that kind of doubt that falls under that definition of reasonable doubt, are they going to follow then-oath and answer the questions no, are they going to answer them yes, in contradiction to their oath. [The Court]: State? [The State]: I don’t believe that’s what the definition of reasonable doubt in conjunction with the oath requires, Judge. I think that this is in here as an example of the kind of doubt, and I don’t think that it goes to the specifics of the particular case, where if the juror says, you know, well, we need to think about this a little while, that that’s the hesitation that to follow their oath, they have to automatically then answer these questions no. I think because the statement starts out it is the kind of doubt. It’s giving that as an example. It’s not meant to be specific to their deliberations as a juror. And he’s giving this juror a false impression when he tells him that to follow his oath, if he has any kind of hesitation, to answer the question, then he’s got to answer it no. I think it’s misleading. I think, in fact in the past the defense attorney has asked similar questions, but not tied them to the oath. And I think those questions were proper. But I think when he says he’s required by his oath to automatically, if on any hesitation answer the question a specific way. That’s improper. [The Court]: Okay. And you are saying he should not be allowed to ask that question about reasonable doubt? [The State]: No, sir. That’s not what I’m saying. I have not objected in the past to some fairly lengthy and confusing questions about reasonable doubt. My problem with it is when he makes it specific to the answer and says that he’s required by his oath, that if he hesitates in any manner that he’s got to then answer the question no. And you know, there could be any number of reasons to hesitate. And once again, this is by way of example and not by way of a specific order to the juror. [The Court]: That’s fine. I’ll keep it out. If I’m wrong, you got a free shot. Bring him back. We’re through. [Appellant]: On that particular issue you would rule— [The Court]: Yes, sir. I’m going with the State, and we’ll find out. [Appellant]: So the State’s objection is sustained, Your Honor? [The Court]: Yes, sir. [Appellant]: And I’ll not be allowed to ask those questions? [The Court]: That’s correct. Appellant contends he was entitled to question venireman Smith concerning his understanding of “reasonable doubt” to determine if he could properly apply the law. The State claims appellant’s linking his definition of reasonable doubt with the juror’s oath, Tex.Code Crim.Proc.Ann. art. 35.22, was improper because it misled the juror into believing he was obligated to answer the punishment issues “no” without deliberating over the evidence. We disagree. We have long acknowledged that voir dire is an integral part of defense counsel’s role in providing adequate legal assistance because it allows counsel to intelligently exercise peremptory challenges and challenges for cause during the jury selection process. McCarter v. State, 837 S.W.2d 117, 120 (Tex.Cr.App.1992); Ex parte McKay, 819 S.W.2d 478, 482 (Tex.Cr.App.1990); Gardner v. State, 730 S.W.2d 675, 689 (Tex.Cr.App.1987); Graham v. State, 566 S.W.2d 941, 953 (Tex.Cr.App.1978); and, Naugle v. State, 118 Tex.Crim. 566, 40 S.W.2d 92, 94 (App.1931). In order to effectuate a defendant’s ability to select a fair and impartial jury the scope of voir dire is broad, McKay, 819 S.W.2d at 482; and, Guerra v. State, 771 S.W.2d 453, 467 (Tex.Cr.App.1988), and a defendant is generally entitled to voir dire prospective jurors on any matter which will be an issue at trial. McCarter, 837 S.W.2d at 121; Nunfio v. State, 808 S.W.2d 482, 484 (Tex.Cr.App.1991); and, Shipley v. State, 790 S.W.2d 604, 608 (Tex.Cr.App.1990). This includes a venireman’s understanding of the term “reasonable doubt.” Lane v. State, 828 S.W.2d 764, 766 (Tex.Cr.App.1992); and, Woolridge v. State, 827 S.W.2d 900, 906 (Tex.Cr.App.1992). We review a trial judge’s decision to limit voir dire for an abuse of discretion, Nunfio, 808 S.W.2d at 484; and, Allridge v. State, 762 S.W.2d 146, 163 (Tex.Cr.App.1988), and a trial judge abuses his discretion when he limits a proper question concerning a proper area of inquiry. Gardner, 730 S.W.2d at 689; and, Powell v. State, 631 S.W.2d 169, 170 (Tex.Cr.App.1982). A trial judge may limit a defendant’s voir dire under specific circumstances: where a question commits a venireman to a specific set of facts, White v. State, 629 S.W.2d 701, 706 (Tex.Cr.App.1981); where the questions are duplicitous or repetitious, Guerra, 771 S.W.2d at 467; where the venireman has already stated his position clearly and unequivocally, Id., at 468 (citing Phillips v. State, 701 S.W.2d 875, 889 (Tex.Cr.App.1985)); and, where the questions are not in proper form, Adams v. State, 577 S.W.2d 717, 724 (Tex.Cr.App.1979). A venireman is subject to a challenge for cause by the State, or by a defendant if he is unable to follow the law. See, Tex.Code Crim.Proc.Ann. art. 35.16(b)(3) and (c)(2). See also, Little v. State, 758 S.W.2d 551, 555 (Tex.Cr.App.1988) (holding State to higher standard of proof subjects venireman to challenge for cause); Felder v. State, 758 S.W.2d 760, 766 (Tex.Cr.App.1988) (inability to consider parole when deciding punishment); Nichols v. State, 754 S.W.2d 185, 197 (Tex.Cr.App.1988) (inability to assess guilt under law of parties); Smith v. State, 683 S.W.2d 393, 398-399 (Tex.Cr.App.1984) (inability to consider minimum range of punishment); and, Esquivel v. State, 595 S.W.2d 516, 526 (Tex.Cr.App.1980) (requiring State prove motive). We do not believe appellant’s question misled the venireman into believing he was obligated to answer the special issues without pausing to deliberate. Appellant essentially re-phrased his previous question concerning how the venireman would answer the special issues if he had a reasonable doubt as to the evidence. Phrasing the question in the context of the juror’s oath did not preempt the venireman’s prospective reflection upon the evidence presented at trial, Therefore, we hold the question was proper and the trial judge abused his discretion by excluding it. Although harm is generally presumed when a trial judge improperly limits voir dire, Nunfio, 808 S.W.2d at 485, we find no harm in this case because jury selection concluded prior to reaching venireman Smith. Smith was the 53rd venireman. However, jury selection concluded when the 45th venireman was selected. Thus, the limitation of appellant’s voir dire did not affect his ability to intelligently exercise his peremptory challenges and challenges for cause. See, Ratliff v. State, 690 S.W.2d 597, 600 (Tex.Cr.App.1985) (citing Thomas v. State, 658 S.W.2d 175 (Tex.Cr.App.1983); and, Whitaker v. State, 653 S.W.2d 781 (Tex.Cr.App.1983)). Appellant’s eighth point of error is overruled. Appellant contends in his ninth point of error that the trial judge erred by restricting the voir dire examination of venireman Kyle regarding his views towards the death penalty. During voir dire, appellant questioned Kyle about the circumstances where death would be an appropriate punishment: [Appellant]: And ... you realize if you find a person guilty of capital murder, you’ve only got two choices of punishment. [Venireman]: I understand that. Q: By your answer on your questionnaire indicates it’s just murder not necessarily even capital murder should always be required to face the death penalty. Is that still your impression? A: (Pause) I — I’ve thought a lot about that. Q: Okay. A: Like I tried to say anything, capital murder, you know, I think in some circumstances the death penalty should be in effect. Now just murder, I’m kind of leaning toward maybe not, you know, capital punishment. But, you know, capital murder, I could lean toward the death penalty. I believe in it rather. Under certain circumstances. Some circumstances if it’s capital murder, I wouldn’t go with the death penalty. Q: Okay. What would those circumstances be? You got any ideas? [The State]: Your Honor, at this time, I’ll object, [Defense Counsel] is trying to bind Mr. Kyle to a verdict. [The Court]: Sustain the objection. [Appellant]: So there are those cases of capital murder that you would not think a person should have the death penalty. A: I believe so. Q: But are you — your also telling me that there are eases of just murder that you would believe that you might want to give somebody the death penalty? A: According to the situation, I might. Q: You realize the law says you can’t do that? A: Um hum. Q: Though you know the law says you can’t do that, you would still want to? A: Not necessarily said I want to, you know, I’m gonna always go by the law. The law is the law. And you know like I said, the circumstances, you know, to me. I just don’t want to give the death penalty to everybody that commit murder, you know, no. Q: How about everybody that commits capital murder? A: No. Q: Don’t want to do that? A: Not just everybody that come along, okay, capital murder, death penalty, murder, death penalty. No. Q: You going to give it a lot of thought? A: Yeah, I really been giving a lot of thought with a lot of questions. This the first time it ever been brought up to me, in many different ways, and I got a lot of opinions on the death penalty, and I thought about it a lot, yes, I have. Q: What is your opinion on the death penalty. A: Basically, I believe in the death penalty, but like I say, I wouldn’t just give the death penalty to somebody because they committed a capital murder. It — it’s up to the circumstances of what happened in a murder. Q: Okay. Anything else. A: No. Q: Nothing else. You wouldn’t consider any other kind of evidence? A: Oh, I’d consider all the evidence. All the evidence that comes in, I’d consider every fact. I’d consider every fact, I just wouldn’t look at maybe the first thing that they was saying, say, well, okay, well, I believe that, yeah. That could be true of capital murder and in the death penalty, you know. I’d consider everything that both sides say, questions and, you know, consider everything before I’d — I’d put somebody’s life on the line. I got to be the most positive man in the world. Q: And there are those capital murder cases that you think life imprisonment would be an appropriate punishment? A: Yes. Q: Is that right? A: Yes, sir. Q: Okay. Question number one. And we’re going over these questions again with' [the prosecutor] a moment ago? A: Yes, sir. Q: Okay. If you found some guilty of capital murder, would you always answer this first question yes? A: (Pause) If they was found of capital murder, would I always answer yes? Q: Yes, sir. A: Not necessarily. Q: You can conceive of an idea in your mind where there may be an appropriate time to answer that question no? You can think of circumstances that you might answer that question no? A: Yes, sir. Q: Okay. What would the circumstances be? Can you think of one particular— [The State]: Objection, Your Honor. Again, [appellant] is trying to bind Mr. Kyle to a verdict based on some facts. [The Court]: Sustain the objection. [Appellant]: Your Honor, I’m not trying to bind him, I’m just trying to see how is thinking and what he might be looking for. [The Court]: I understand. The ruling is still the same. The voir dire in the instant case is similar to that in Boyd v. State, 811 S.W.2d 105, 119 (Tex.Cr.App.1991), wherein defense counsel was prevented from asking a prospective venireman to explain “what ... is a case that is proper for the death penalty to be imposed?” We held the trial judge did not abuse his discretion in excluding the question because the question committed the venireman to a particular fact situation. Id., at 120 (citing Allridge, 762 S.W.2d at 162-164; and, Cuevas v. State, 742 S.W.2d 331, 336, n. 6 (Tex.Cr.App.1987)). The question in the instant case is indistinguishable from that in Boyd. Therefore, appellant’s ninth point of error is overruled. VII. In his tenth and eleventh points of error appellant contends the trial judge erred in admitting hearsay evidence. The police discovered in Thompson’s office an appointment book containing the name Ricky Dennis, and a patient application form listing the name Ricky Dinkins which were later tendered into evidence over appellant’s objection. Detective Sheffield testified appellant became a suspect in the investigation based upon the appointment book and application form. Appellant argues the appointment book and application form constitute inadmissible hearsay. Hearsay is a statement, including a written statement, other than one made by the declarant while testifying at the trial, which is offered to prove the truth of the matter asserted. See, Tex.R.Crim.Evid. 801(d); Schaffer v. State, 111 S.W.2d 111, 115 (Tex.Cr.App.1989); Barnard v. State, 130 S.W.2d 703, 723 (Tex.Cr.App.1987); and, McKay v. State, 707 S.W.2d 23, 33 (Tex.Cr.App.1985). An extrajudicial statement or writing which is offered for the purpose of showing what was said rather than for the truth of the matter stated therein does not constitute hearsay. Crane v. State, 786 S.W.2d 338, 351 (Tex.Cr.App.1990); Porter v. State, 623 S.W.2d 374, 385 (Tex.Cr.App.1981); and, Nixon v. State, 587 S.W.2d 709, 711 (Tex.Cr.App.1979). In Gholson v. State, 542 S.W.2d 395, 398 (Tex.Cr.App.1976), we explained “[a]n extra-judicial statement or writing may be admitted as circumstantial evidence from which an inference may be drawn, and not for the truth of the matter stated, therein, without violating the hearsay rule.” We addressed a similar issue in Jones v. State, 843 S.W.2d 487 (Tex.Cr.App.1992). While testifying at trial, a police officer repeated several out-of-court statements by another witness which implicated the defendant. The officer explained that he began to suspect the defendant and ultimately obtained an arrest warrant based upon those statements. Id., at 499. We held the extrajudicial statements were not inadmissible hearsay because they were admitted not to prove the truth of the matter asserted, but rather to explain how the defendant came to be a suspect. Id. The instant case is controlled by Jones. The State tendered the appointment book and the application form to show how appellant became a suspect in the investigation. Therefore, we hold the appointment book and the patient application form were not inadmissible hearsay. Appellant’s tenth and eleventh points of error are overruled. VIII. In his twelfth point of error, appellant contends the trial judge erred in admitting appellant’s written confession because the statement was involuntary, resulting from Sheffield’s advice that it could be used “for or against” appellant. It is well settled that a confession is not admissible if the uncontradicted evidence shows the person who obtained the confession informed the accused that his confession might be used “for or against” him. Sterling v. State, 800 S.W.2d 513, 518-519 (1990); Dunn v. State, 721 S.W.2d 325, 341 (Tex.Cr.App.1986); Walker v. State, 470 S.W.2d 669, 671 (Tex.Cr.App.1971); McCain v. State, 139 Tex.Crim. 539, 141 S.W.2d 613, 614 (1940); and, Guinn v. State, 39 Tex.Crim. 257, 45 S.W. 694 (1898). A confession resulting from a person’s statement that it can be used “for or against” the defendant is inadmissible as a matter of law because it constitutes an improper inducement and because it does not comply with the statutory warnings in art. 38.22. Dunn, 721 S.W.2d at 341. However, where there is a factual discrepancy as to whether such a representation was made, the trial judge is responsible for determining whether the confession is admissible. Long v. State, 823 S.W.2d 259, 277 (Tex.Cr.App.1991); Moore v. State, 700 S.W.2d 193, 202 (Tex.Cr.App.1985); and, Freeman v. State, 618 S.W.2d 52, 53 (Tex.Cr.App.1981). And that decision will not be disturbed absent an abuse of discretion. Long, 823 S.W.2d at 277; Johnson v. State, 803 S.W.2d 272, 287 (Tex.Cr.App.1990); and, Sosa v. State, 769 S.W.2d 909, 915 (Tex.Cr.App.1989). The record contains evidence that Sheffield informed appellant that his written confession could be used “for or against” him. During the Jackson v. Denno hearing, Sheffield made several statements indicating he might have used the phrase- “for or against”: [Appellant]: You didn’t tell [appellant] [the confession] might help him? [Sheffield]: No sir. Q: Did you tell him it could be used for or against him? A: Yes, sir. Later, on re-direct examination: [The State]: Do you specifically remember, Detective, telling [appellant], you telling [appellant] that a statement could be used for him or that a statement could be used for or against him? A: I don’t recall. I usually say for or against, but I don’t recall exactly, but I probably said for or against. However, the record also contains evidence which contradicts Sheffield’s testimony. During the hearing Hobbs denied Sheffield informed appellant his confession could be used “for or against” him. Hobbs testified that he, not Sheffield, admonished appellant prior to taking his confession: [Appellant]: And did you also — you think he understood? His understanding was that if he gave a statement, it could be used for or against him at the time of trial? A: I told him it could and would be used against him. Q: Did anybody to .your knowledge tell him that it could be used for or against him? A: I read the warnings verbatim. I asked if they understood them. Q: But you don’t know if somebody else told him it could be used for or against him. Isn’t that right? A: On the date of the confession, I don’t believe Mr. Dinkins was ever out of my presence. Q: So if somebody else told him that, you just wouldn’t be aware of it. Is that right? A: Just didn’t happen, not on the 14th. Q: Unless somebody told him that and you didn’t hear it. Is that correct? A: . Yes, sir, I suppose. Q: Did Detective Sheffield give him warnings on the 14th? A: I believe I gave him his warnings. Q: So if Detective Sheffield said that he warned him and told him that statement could be used for or against him, you just didn’t hear that conversation. Is that correct? A: There were many times when we were talking together, but I believe I read him the warnings. Q: So if Detective Sheffield told him that this statement could be used for or against him, you just didn’t hear the conversation. Is that right? A: Well ... if I read him his warnings and then — Detective Sheffield and I may have asked him if he understood them, do I remember those words verbatim? No, sir, I don’t. Q: Okay. A: But could that have been said, I suppose so in an effort to explain his rights. The trial judge overruled appellant’s motion to suppress the confession and filed findings of fact and conclusions of law in which he specifically found appellant’s confession was not induced by any advice that the confession could be used “for or against” him. Evidence that a defendant received an improper warning need not be wholly rebutted, but merely contradicted in order that a confession be admissible. Muniz v. State, 851 S.W.2d 238, 252 (Tex.Cr.App.1993); Moore, 700 S.W.2d at 202; and, Barton v. State, 605 S.W.2d 605, 607 (Tex.Cr.App.1980) (defendant’s claim his confession resulted from beating was contradicted by testimony police used force to break up jail altercation between defendant and another.). In Sterling, and Dunn, we held the confessions were inadmissible because the interrogating officers testified, without contradiction, that the defendants were advised their confessions could be used “for or against” them. Sterling, 800 S.W.2d at 518-519; and, Dunn, 721 S.W.2d at 340-342. By contrast, in Freeman, 618 S.W.2d 52, and Coursey v. State, 457 S.W.2d 565 (Tex.Cr.App.1970), we held the confessions admissible because the testimony was contradicted. In Freeman, the interrogating officer testified he informed the defendant his statement could be used “for or against” him. Id., 618 S.W.2d at 53. However, he later denied he had used the phrase “for or against” when warning the defendant and attributed his prior testimony to his misunderstanding of defense counsel’s questions. He further testified he warned the defendant from the standard warning form, which tracked the language of art. 38.22. Id. In holding the confession was admissible, we explained the trial judge has the discretion to resolve factual discrepancies in the testimony. Id. In Coursey, the defendant contended the County Attorney advised him that his confession could be used either for or against him. A police officer present at the interrogation testified at trial that the County Attorney advised the defendant that his confession could be used for or against him. Id., 457 S.W.2d at 567. However, the officer subsequently testified the warnings were read off the standard warning form, which conformed to the statutory warnings in effect at the time. Id. Further, the County Attorney denied advising the defendant his statement could be used for or against him. Id., at 568. We held the County Attorney’s and the officer’s testimony sufficiently controverted the defendant’s claims and, therefore, the confession was admissible. Id. Although Sheffield’s'testimony permits the conclusion that he informed appellant his confession could be used “for or against” him, his testimony was contradicted. Sterling and Dunn are not controlling because Sheffield’s testimony is not an unqualified admission he said “for or against.” More significantly, Sheffield’s testimony is contradicted by Hobbs, who testified that he, not Sheffield, warned appellant the day his confession was taken. To believe the testimony of one is to disbelieve the testimony of the other. Accordingly, it was within the trial judge’s discretion to resolve this factual discrepancy, Freeman, 618 S.W.2d at 53, and, in light of the record, we cannot conclude that he abused his discretion. Appellant’s twelfth point of error is overruled. IX. In his thirteenth and fourteenth points of error, appellant argues his confession and other evidence were admitted in violation of his right to counsel under the Fifth Amendment of the United States Constitution. Appellant contends he invoked his right to counsel prior to giving his confession and, therefore, the confession and all the evidence obtained because of it were inadmissible. Sheffield and Hobbs first contacted appellant at his place of work on September 13th, the day after the offense. After advising appellant of his Miranda rights, the detectives questioned him and sought permission to search his car. Appellant spoke with the detectives but refused to consent to a search. At some point in the conversation appellant stated “maybe I should talk to someone,” at which time the detectives ceased their questions and arrested appellant on an outstanding misdemeanor arrest warrant. Later that day, appellant telephoned his grandmother and asked to speak to the police detective, Detective Clifton Orr, who was there investigating appellant’s alibi for the previous night. Appellant denied he committed the murders but stated he would allow the police to search his car. Orr then telephoned Sheffield and informed him appellant would sign a written consent to search the car. A search of the car recovered a .357 revolver, two boxes of ammunition and items of clothing. Appellant was again interrogated by Hobbs and Sheffield the next morning, September 14. After reading appellant his Miranda rights, the detectives sought appellant’s written consent to search various locations, including his home and his locker at work. At some point during the interrogation appellant asked Sheffield “what a lawyer would tell him to do?” Sheffield informed him “in no uncertain terms that a lawyer would tell him to keep his mouth shut and not to talk to the police at all.” Appellant signed a written consent to search form and accompanied Hobbs and Sheffield as they conducted the searches. The record does not support a showing appellant requested an attorney while accompanying the detectives during their searches. Moreover, the record is clear that appellant met with both his brother and his grandmother during the day but did not request either of them to retain an attorney. Upon returning to the District Attorney’s office, the detectives again interrogated appellant. During the interrogation, appellant asked to speak to his mother in Atlanta, Georgia. According to Hobbs, who was waiting in the doorway during the conversation, appellant did not ask his mother to retain counsel for him. After the conversation, the detectives informed appellant capital murder charges would be filed against him. Appellant then agreed to dictate a statement. Hobbs read appellant his Miranda warnings and had appellant read back the warnings and sign them. Appellant then dictated his statement. After being formally charged with capital murder and returned to the county jail, appellant requested to talk to a local attorney whose name was given to him by his mother. Although Hobbs did not know the attorney whom appellant requested, he looked up the telephone number of an attorney having a similar name and arranged to have appellant use the telephone. Under the Fifth Amendment to the United States Constitution, in order to effectuate the right against self-incrimination, once a suspect has invoked his right to counsel, all interrogation by the police must cease until counsel is provided or until the suspect himself re-initiates conversation. Minnick v. Mississippi, 498 U.S. 146, 153, 111 S.Ct. 486, 491, 112 L.Ed.2d 489 (1990); Edwards v. Arizona, 451 U.S. 477, 484-485, 101 S.Ct. 1880, 1884-1885, 68 L.Ed.2d 378 (1980); Miranda v. Arizona, 384 U.S. 436, 474, 86 S.Ct. 1602, 1628, 16 L.Ed.2d 694 (1966); Hicks v. State, 860 S.W.2d 419, 429-430 (Tex.Cr.App.1933); and, Upton v. State, 853 S.W.2d 548, 552 (Tex.Cr.App.1993). “The right to counsel is considered invoked where a person indicates he or she desires to speak to an attorney or have an attorney present during questioning.” Lucas v. State, 791 S.W.2d 35, 45 (Tex.Cr.App.1989). An invocation must be clear and unambiguous; the mere mention of the word “attorney” or “lawyer” without more, does not automatically invoke the right to counsel. Robinson v. State, 851 S.W.2d 216, 223 (Tex.Cr.App.1991); Collins v. State, 727 S.W.2d 565, 568 (Tex.Cr.App.1987) and, Russell v. State, 727 S.W.2d 573, 575 (Tex.Cr.App.1987). When reviewing alleged invocations of the right to counsel, we typically look at the totality of the circumstances surrounding the interrogation, as well as the alleged invocation, in order to determine whether a suspect’s statement can be construed as an actual invocation of his right to counsel. Lucas, 791 S.W.2d at 45-46, and, Russell, 727 S.W.2d at 576. Because appellant made no explicit requests for an attorney, we must review the record to determine whether any of appellant’s statements can be clearly understood to be an invocation of his right to counsel. Foremost is appellant’s statement on September 13 while being questioned by Detectives Sheffield and Hobbs, “Maybe I should talk to someone.” The United States Supreme Court addressed the issue of ambiguous invocations of the right to counsel in Davis v. United States, — U.S. -, -, 114 S.Ct. 2350, 2355, 129 L.Ed.2d 362 (1994). Davis, a member of the United States Navy, was questioned by naval police following the beating death of the deceased, who owed Davis money. After being advised of his Miranda rights, Davis waived his right to remain silent and his right to counsel, orally and in writing. Id., — U.S. at -, 114 S.Ct. at 2353. About an hour and a half into the interrogation, Davis stated “Maybe I should talk to a lawyer” at which point the interrogators stopped and attempted to clarify whether Davis was actually invoking his right to an attorney. Davis, however, denied he wanted an attorney and the interrogation continued for another hour until Davis stated “I think I want a lawyer before I say anything else.” At this point, the interrogation ceased. Id. At his court-martial, Davis was convicted of murder after unsuccessfully attempting to suppress his statement. The United States Court of Military Appeals affirmed and the Supreme Court granted cer-tiorari to determine wh