Full opinion text
OPINION MALONEY, Judge. Appellant was convicted of capital murder pursuant to Texas Penal Code Section 19.03(a)(2). The jury made affirmative findings on the two special issues submitted to it and the trial court imposed the sentence of death. This case comes to us on direct appeal. Tex.Code Crim.Proc.Ann. art. 37.071 § 2(h). We will reverse based upon our disposition of appellant’s points of error seventeen, eighteen and nineteen, and address point of error thirteen, challenging the sufficiency of the evidence. In point of error thirteen appellant challenges the sufficiency of the evidence to sustain an affirmative finding on the second special issue, whether there is “a probability that [appellant] would commit criminal acts of violence that would constitute a continuing threat to society[.]” A discussion of the facts relevant to this issue is necessary. The evidence at trial established that in the early afternoon of August 29, 1988, appellant and accomplice Eugene Hart entered the Golden Nugget Pawn Shop in Harris County, Texas, shot the two clerks on duty, stole jewelry and money and fled on foot. Evidence connecting appellant and Hart to the scene led to their arrests the next day. After his arrest, appellant directed police officers to the locations where he had thrown the pistol used in committing the offense and the spent shells from the pistol. In a written confession appellant confessed that he was the triggerman in both shootings. Appellant further stated that he had initiated the plan to rob the pawn shop and had solicited Hart’s involvement. Appellant stated that “[Hart] and I had already made up our minds that when we jacked (Robbed) the place we were going to have to kill whoever was there because we did not want to be identified.” At punishment, the State introduced evidence of appellant’s two prior burglary convictions and appellant’s military records reflecting his discharge “Under Other Than Honorable Conditions” due to frequent misconduct. Appellant’s prison records were also introduced, evidencing repeated reports of misconduct, primarily relating to appellant’s refusal to work. In addition, psychologist, Dr. Michael Field, testified for the State that he had diagnosed appellant as having an antisocial personality disorder. Field testified that appellant was not subject to rehabilitation and would constitute a continuing threat to society. While in prison appellant confided in a fellow inmate, James Jackson, that he planned to “eliminate” his cohort Hart, who was also in prison, by poison. Jackson testified that appellant wanted him to contact a kitchen worker who would be able to facilitate appellant’s plan. Appellant also told Jackson that he had wanted to kill Hart immediately after committing the offense, but had not had the opportunity. Appellant argues that while his military and prison records were not exemplary, the infractions were of a passive nature. Appellant further contends that the State’s psychological evidence was faulty because it was based upon a twenty minute interview conducted while appellant was incarcerated some six years prior to the commission of the instant offense. Appellant also introduced letters and poems that he had written for the purpose of showing that he was remorseful. In reviewing the sufficiency of the evidence to sustain the jury’s affirmative finding on a special issue, we consider whether that evidence, viewed in the light most favorable to the verdict, would lead any rational trier of fact to the same conclusion beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 2788-89, 61 L.Ed.2d 560 (1979); Fuller v. State, 827 S.W.2d 919, 934 (Tex.Crim.App. 1992), cert, filed (June 23,1992). In reaching a verdict on the special issues, the jury is allowed to consider evidence introduced at both stages of the trial. Miniel v. State, 831 S.W.2d 310, 322 (Tex.Crim.App.), cert. denied, 506 U.S. 885, 113 S.Ct. 245, 121 L.Ed.2d 178 (1992). The circumstances of the offense alone, if sufficiently heinous, can suffice to support the jury’s verdict. Keeton v. State, 724 S.W.2d 58, 61 (Tex.Crim.App. 1987); Johnson v. State, 853 S.W.2d 527, 531 (Tex.Crim.App.1992). In addition to the crime itself, the jury may consider factors such as whether the accused was acting in concert with others, his state of mind at the time, the calculated nature of the acts culminating in the offense, forethought and deliberation preceding the murder, the accused’s age, prior criminal history, psychiatric evidence and character evidence. See, e.g., Keeton, 724 S.W.2d at 61; Vuong v. State, 830 S.W.2d 929, 934-35 (Tex.Crim.App.), cert. denied, 506 U.S. 997, 113 S.Ct. 595, 121 L.Ed.2d 533 (1992). Viewed in the light most favorable to the decision made by the jury, we hold the evidence sufficient to support the jury’s affirmative finding on the second special issue beyond reasonable doubt. First v. State, 846 S.W.2d 836 (Tex.Crim.App.1992). The offense, while not sufficiently heinous alone to justify an affirmative finding on the second issue, is probative of appellant’s future conduct. The robbery and the murders were planned with forethought and put into calculated operation. Appellant admittedly planned, prior to committing the offense, to kill anyone who might be in the store in order to avoid an identification. Both unarmed clerks were shot at close range and without provocation as part of appellant’s pre-devised scheme. These circumstances, together the other evidence elicited by the State at the punishment phase of trial, including evidence of appellant’s plans to kill his accomplice, appellant’s prior criminal history, poor military and prison records and the psychologist’s testimony that appellant could not be rehabilitated support the jury’s affirmative finding on the second special issue. Point of error thirteen is overruled. In points of error seventeen, eighteen and nineteen, appellant complains of the trial court’s failure to compel a State’s witness to produce certain reports which related to his testimony. Appellant claims that the trial court’s actions violated Texas Rule of Criminal Evidence 614 and that appellant was thereby denied his right of confrontation and due process of law under the Fifth and Fourteenth Amendments to the United States Constitution, and Article I, Sections 10 and 19 of the Texas Constitution. During the punishment phase of trial Larry Bitter, a narcotics investigator with the Texas Department of Corrections (TDC), testified as a State’s witness about the importation of drugs into TDC and their widespread use by inmates. Following are excerpts of that testimony: Q. [Prosecutor] "What does your job consist of? A. [Bitter] We’re responsible for the investigation of allegations of narcotics traffic primarily within the prison system. Q. Are there narcotics found inside TDC? [objection omitted] A. Yes, sir, there are. [objection omitted] Q. Are narcotics available to inmates of the Texas Department of Corrections? [objection omitted] A. Yes, sir. * * * * * * Q. Have you found drugs in possession of any inmates at the Department of Corrections? [objection omitted] A. Yes, sir, we have. Q. What type of drugs have you found on inmates in the Texas Department of Corrections? A. Everything. Heroin, marijuana, cocaine, LSD; all drugs that are available in the free world we have found on inmates. Q. Do you know how those drugs get in? A. Yes, sir. There are a variety of different ways. Q. ... What various ways have you found drugs get into the Texas Department of Corrections? [objection omitted] A. Through officers and employees, civilians who come to visit on weekends, through the mail.... there are a series of different ways to get it in through the mail. We’ve had LSD that has been placed behind a postage stamp on an envelope. We have seen it coming in that way. Q. Are you talking about small amounts, or what is the largest amount of drugs you’ve found on an inmate in the Texas Department of Corrections? A. We have seized in excess of a half a pound of marijuana. We have seized in excess of an ounce of cocaine. Q. How do they ingest the drugs that are ingested? Do they use syringes or what? A. Each unit houses an infirmary. In the course of business, the infirmary has syringes and hypodermic needles, and because the way the prison is run, inmates are allowed access to nearly every portion of the prison. They are able to sometimes steal syringes, and sometimes officers will bring in syringes as part of what he does for inmates. So they dig them out of the trash cans; as medical personnel throw them away, they use syringes. sjj s}: Q. Would the fact that a person may have been to the penitentiary on at least two occasions, would that person have a better understanding of how to obtain drugs in the penitentiary? [objection omitted] A. Yes, sir, he would. Q. The fact that a person is confined to the Texas Department of Corrections, would that automatically cut the availability of any controlled substance or dope to him or her? A. No, sir. On cross-examination Bitter stated that as part of his job he made reports and findings of his investigations of drug importation into the TDC. Thereupon, appellant requested that he be given those reports for purposes of further cross-examination pursuant to Rule of Criminal Evidence 614. The trial judge ordered the production of reports that specifically concerned appellant, but denied appellant’s request with respect to any other report. Appellant objected that the court’s ruling was in violation of appellant’s confrontation and due process rights, and was contrary to Rule 614. Appellant’s objections were overruled. Appellant requested that the reports be produced for purposes of the record on appeal. This request was denied. Texas Rule of Criminal Evidence 614(a) provides that: After a witness other than the defendant has testified on direct examination, the court, on motion of a party who did not call the witness, shall order the attorney for the state or the defendant and his attorney, as the case may be, to produce, for the examination and use of the moving party, any statement of the witness that is in their possession and that relates to the subject matter concerning which the witness has testified. TEX.R.CRIM.EVID. 614(a). Rule 614 derives from the common law rule set forth in our decision in Gaskin v. State, 172 Tex. Crim. 7, 353 S.W.2d 467 (App.1961). HU-LEN D. WENDORF, ET AL, TEXAS RULES OF EVIDENCE MANUAL at VI-106 (3rd ed. 1991). Because we have never before interpreted the scope and application of Rule 614, it is appropriate to look to our interpretation of the Gaskin rule for guidance. Moreover, as Rule 614 is substantively similar to the federal Jeneks Act, 18 U.S.C. § 3500, federal caselaw may also be helpful. Material subject to Rule 614 must “relate[ ] to the subject matter concerning which the witness has testified.” TEX.R.CRIM. EVID. 614(a). The State argues that appellant’s request far exceeds the scope of material discoverable under the Rule. A recent federal decision, United States v. Roark, 924 F.2d 1426 (8th Cir.1991), which applied the federal rule to facts comparable to those here is persuasive. In Roark, the defendant, a member of the Hells Angels Motorcycle Club, was indicted for various drug-related offenses. Id. at 1427. The government called DEA agent Heald, who had no involvement in the offense or with the defendant, to testify as an expert on the Hells Angels organization. Id. at 1430. Heald testified that he had visited at least one hundred of the Hells Angels’ methamphetamine labs and had written reports about the illegal drug activities of the Hells Angels, including operation of the labs. The government also called Anthony Tait, an agent who had worked undercover as a Hells Angel. Tait testified that he had made hundreds of tapes in relation to his activities with the Hells Angels, including the defendant’s particular chapter of the organization. The defendant requested production of Heald’s reports and Tait’s tapes pursuant to the Jeneks Act. Id. at 1431. The district court refused to compel production of any of the documents requested relating to Heald’s or Tait’s testimony sustaining the government’s objection that the material sought was too voluminous. Id. at 1431. However, at the close of trial, the district court instructed the jury that the testimony of both Heald and Tait was struck from the record and that they were not to consider that testimony as it “in no way proves that defendant is guilty of the crimes with which he is charged.” Id. at 1432. Addressing the district court’s concerns about the volume of the material sought, the Court of Appeals for the Eighth Circuit noted that the Jeneks Act did not restrict production of relevant material simply because the material is or might be voluminous. Id. at 1431. The court further stated that when the government challenges the relevancy of requested material, the trial judge has an affirmative duty to inspect those materials in camera. The court held that the failure to compel production of the requested materials either to appellant or to the court for an in camera inspection amounted to reversible error and was not cured by the jury instruction to disregard the witnesses’ testimony. Id. at 1432-34. The testimony of Bitter and the reports sought in the instant case are remarkably similar in nature to the testimony of Heald and Tait and the material sought in Roark. In Roark, Heald had no involvement in the case or with the defendant. Heald’s testimony pertained to the Hell’s Angels in general and to offenses committed by the Hell’s Angels which did not involve the defendant. The reports sought described offenses which did not involve the defendant. Although some of Tait’s testimony pertained to activities of the Hell’s Angels’ chapter to which the defendant belonged, most of his testimony related to matters which did not involve the defendant. In the instant case, Bitter’s testimony pertained to drug offenses in the TDC in general. None of Bitter’s testimony indicated that he had any involvement in the investigation of the instant offense or with appellant, apart from testifying in appellant’s trial. As in Roark, it appears from the record here that the reports sought described offenses which did not involve appellant. We hold that the trial court erred in refusing to compel production of the reports, at least in order to conduct an in camera inspection as to their relevance to Bitter’s testimony. See Roark. The State argues that production of the reports should not be compelled because the task “would be extremely onerous” and “herculean”. This argument is without merit as Rule 614 does not exclude production of materials that are or might be voluminous. See id. at 1431. Although the State further argues that appellant’s request exceeds the scope of Rule 614, the Rule is extremely broad, providing that the trial court “shall” compel production of “any statement ... that relates to the subject matter concerning which the witness has testified.” (emphasis added). The State cites no authority in support of its contention that the Rule was not intended to extend to reports of the type sought by appellant. The State also argues that the reports were not “statements” within the meaning of Rule 614 and were not subject to production because they were not in Bitter’s “possession”. We reject these contentions. Bitter’s testimony was that he personally prepared the reports based upon his investigatory findings. These reports were statements under Rule 614. See, e.g., Campos v. State, 468 S.W.2d 81, 83 (Tex.Crim.App. 1971) (police officers’ offense reports are discoverable statements under Gaskin); Darrington v. State, 493 S.W.2d 244, 245 (Tex.Crim.App.1973) (officer’s offense report was “statement” subject to Gaskin rule); 22 TEX.JUR.3d Criminal Law § 2446 (1982) (describing Gaskin Rule as applicable where state’s witness has “made a report or given a statement”); see also United States v. Welch, 810 F.2d 485, 490 (5th Cir.), cert. denied 484 U.S. 955, 108 S.Ct. 350, 98 L.Ed.2d 376 (1987) (investigation reports can be “statement” under Jeneks Act); Lewis v. United States, 340 F.2d 678, 682 (8th Cir.1965) (well-settled that notes and reports made in course of criminal investigation are “statements” under Jeneks). As to the issue of possession, the State’s interpretation is overly narrow, essentially requiring physical possession in the courtroom. We think a more reasonable view is that a statement is in the “possession” of a witness if it is within his control or is readily accessible to him. See United States v. Heath, 580 F.2d 1011, 1018, 1018 n. 1 (10th Cir.1978), cert. denied 439 U.S. 1075, 99 S.Ct. 850, 59 L.Ed.2d 42 (1979) (where there was close cooperation between local police and federal prosecutor, federal prosecutor cannot “stand on technicality and say that he does not have actual possession” of the statement held by local authorities); Augenblick v. United States, 377 F.2d. 586, 597-98, 180 Ct.Cl. 131 (1967) (“statement” under Jeneks Act “need not be within the physical control of the prosecution to be ‘in possession’), rev’d on other grounds, 393 U.S. 348, 89 S.Ct. 528, 21 L.Ed.2d 537 (1969); see also United States v. Durham, 941 F.2d 858, 861 n. 3 (1991) (where federal authorities did not participate in a joint effort with local authorities, federal government did not have “possession” of statements taken by local authorities). Although the record is not well-developed as to Bitter’s control over or access to the reports at issue, as a narcotics investigator for TDC, it is reasonable to assume that Bitter was in control of and had access to reports prepared by him in the exercise of his investigative duties. Moreover, we think it reasonable that when a defendant requests the production of a statement under Rule 614, the State bears the burden, as the party contesting production, to show why the statement should not or cannot be produced. See United States v. Augenblick, 393 U.S. 348, 355-56, 89 S.Ct. 528, 533-34, 21 L.Ed.2d 537 (1969) (government properly bears burden of explaining why statements under Jeneks Act could not be produced); Moore v. United States, 353 A.2d 16, 19 (D.C.1974) (under Jeneks Act burden of explaining why material can’t be produced is on government). Here, the State failed to show that the witness did not have control of or access to the reports. In the absence of evidence to the contrary, we hold the reports were in Bitter’s “possession” within the meaning of Rule 614. Violation of Rule 614 results in reversal unless the error is shown to be harmless. See TEX.R.APP.PROC. 81(b)(2). This principle applied to violations of the common law Gaskin rule as well. See, e.g., Pinson v. State, 598 S.W.2d 299, 300-01 (Tex.Crim.App. 1980); Hoffman v. State, 514 S.W.2d 248, 253 n. 5 (Tex.Crim.App.1974); Campos v. State, 468 S.W.2d 81, 84 (Tex.Crim.App.1971). Under Gaskin, we recognized that in determining harm we must consider whether the accused was denied effective cross-examination or possible impeachment due to the denial of the reports. Cullen v. State, 719 S.W.2d 195, 196-98 (Tex.Crim.App.1986). In order to make such a determination, the appellate court must review the documents in question. Id. However, where the defendant is denied the opportunity to make the statements available for the appellate record so that harm can be determined, harm is presumed. See, e.g., Zanders v. State, 480 S.W.2d 708, 710-11 (Tex.Crim.App.1972), cert. denied 421 U.S. 951, 95 S.Ct. 1685, 44 L.Ed.2d 106 (1975); White v. State, 496 S.W.2d 642, 646 (Tex.Crim.App.1973). Here, appellant requested but was denied the opportunity to make the reports part of the record for appeal. Because we do not have the reports before us to review, we cannot conclude beyond a reasonable doubt that the error made no contribution to the verdict. Accordingly, the judgment of the trial court is reversed and this cause is remanded to the trial court. WHITE, J., concurs. McCORMICK, P.J., and OVERSTREET and MEYERS, JJ., dissent. . Appellant’s points of error seventeen, eighteen and nineteen are as follows: Point of Error Number 17 The trial court erred in not striking the testimony of Larry Bitter or granting a mistrial because of the failure of Mr. Bitter to produce statements previously prepared by himself relating to his testimony. Point of Error Number 18 The trial court denied the Appellant his right to confront the witnesses against him and due process of law under the Fifth and Fourteenth Amendments to the United States Constitution when it refused to order the witness Larry Bitter to produce statements previously prepared by himself that related to his testimony. Point of Error Number 19 The trial court denied the Appellant his right to confront the witnesses against him and due process of law under ARTICLE 1, SEC. 10 and SEC. 19, TEXAS CONSTITUTION, when it refused to order the witness Larry Bitter to produce statements previously prepared by himself that related to his testimony. . Appellant objected to Bitter’s testimony as irrelevant to the special issues and highly prejudicial. Appellant was granted a running objection. In points of error fourteen and fifteen, appellant challenges the court's overruling of his objections to the admissibility of Bitter's testimony. Because we dispose of this case on the basis of points of error seventeen, we do not address the issue of relevancy. However, by holding that the reports should have been produced under Rule 614 we do not mean to imply that Bitter’s testimony was relevant. We hold only that where testimony such as Bitter's is admitted, reports such as those sought should be produced if requested under Rule 614. . In addition, three days prior to the punishment phase of trial, appellant filed a motion requesting that the State’s witnesses be compelled to bring with them all reports "that they made in connection with the subject matter of their testimony" as well as reports “that such witness relied upon to form the basis of his expert opinion or lay opinion in in [sic] the case.” The record reflects that the motion was granted on the day it was filed. Because we dispose of appellant’s complaint under Rule 614, we need not address the issues raised with respect to appellant's motion. 4. After his initial request for the production of the reports was denied, appellant argued: I bring Rule 614 from the Texas Rules of Criminal Evidence to bear and also the fact that the Court has already granted an order that they bring all those reports with them. The court then stated that any reports specifically relating to appellant were to be produced, but no other reports. Appellant questioned the court’s ruling: The Court is saying that if this witness has done an investigation of [appellant], that I’m entitled to see that report, but all these other things that he testified to to [sic] this jury are relevant to the issue of punishment and I don’t have a right to get those reports to look at; is that correct, Your Honor? The court did not change its ruling and appellant further objected: I would object to the Court denying the Defendant's right to confront and cross-examine his accusers which is guaranteed by the Sixth Amendment to the United States Constitution, the right of due process given by the Fourteenth Amendment to the Constitution, and the state's constitution. It further violates specifically Rule 614 of the Rules of Criminal Evidence that state that you have the right to see the report that the witness has relating to the subject matter concerned with what the witness testified to. The court overruled appellant's objections as "a very broad interpretation of Rule 614.” . In Gaskin, the defendant sought the production of offense reports prepared by arresting officers who testified for the State. Gaskin, 353 S.W.2d at 468. Holding that it was error for the trial court to fail to compel production of the reports, we created a new rule entitling a defendant to the production of: a previous statement shown by the evidence to have been made by a witness who has testified for the state, which statement was available and inspection was requested for the purpose of cross-examination and possible use for impeachment purposes. Id. at 469. Such a statement was subject to production “whether the statement has been used by the witness before trial to refresh his memory or not.” Id. . The federal rule provides, in relevant part: After a witness called by the United States has testified on direct examination, the court shall, on motion of the defendant, order the United States to produce any statement (as hereinafter defined) of the witness in the possession of the United States which relates to the subject matter as to which the witness has testified ... 18 U.S.C. § 3500(b). The federal statute is a derivative of the common law rule set forth in the United States Supreme Court’s decision in Jeneks v. United States, 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103 (1957). In creating the rule set forth in Gaskin we “disclaim[ed] any intent to adopt the Jeneks decision”, Gaskin, 353 S.W.2d at 469; however, we later acknowledged that the Gaskin rule “parallels the Jeneks rule”, Sewell v. State, 367 S.W.2d 349, 351 (Tex.Crim.App.1963) (op. on reh’g). The Jeneks Act was incorporated into the Federal Rules of Criminal Procedure as Rule 26.2. United States v. Shyres, 898 F.2d 647, 657 n. 4 (8th Cir.), cert. denied 498 U.S. 821, 111 S.Ct. 69, 112 L.Ed.2d 43 (1990) (Rule 26.2 reads virtually verbatim to Rule 614). .Specifically, the State argues: ... Rule 614 cannot be interpreted to require Bitter to produce every report he had ever seen or made regarding drug activity at T.D.C.J.I.D. ... Bitter gave no specifics about any particular case, nor gave any indication that his testimony was based on the review of any reports. Rather, his testimony was simply that drugs were available in prison. By analogy, an officer who testified that in his experience, a particular area of town was a high crime area need not bring in every offense report ever filed in that area of town. Nor would an officer who testified that he has often seen cocaine packaged in small plastic baggies be required to bring in every offense report in which he found cocaine packaged in small baggies. We disagree with the State's analogies. The State asserts in its brief that Bitter's testimony was given for the specific purpose of making implications about appellant's drug use and future conduct, as relevant to the second special issue. To the extent that an officer's testimony about a high crime area of town or the packaging of cocaine does not bear directly on a punishment issue to be decided by the jury, it is not analogous to Bitter’s testimony. . As to the tapes made by Tait, the State estimated that there were 200 to 300 tapes, running approximately 500 hours of time, and located in a number of different states throughout the country. . Bitter’s testimony concerned drugs in the "possession of inmates” in general. Bitter testified that "as an investigator [with TDC] ... [he made] reports of [his] findings and investigations." There was no testimony as to whether any of the reports made by Bitter pertained to offenses involving appellant. .Specifically, the State says in its brief that "it appears from the record that these reports were in the custody of [TDC] and that Mr. Bitter did not have these reports in his possession.” . We note that Rule 614 defines a written statement as one "made by the witness that is signed or otherwise adopted by him.” TEX.R.CRIM. EVID. 614(f)(1). . The majority on rehearing criticizes the reliance by the Court on original submission on United States v. Roark, 924 F.2d 1426 (8th Cir. 1991), "because Roark did not address the meaning of 'in the possession of the United States' for Jencks Act purposes.” This criticism is puzzling because the Court on original submission did not rely on Roark for that proposition. The Court on original submission looked to Roark only in interpreting the portion of Rule 614 which requires that the statement “related to the subject matter concerning which the witness has testified.” Jenkins v. State, 912 S.W.2d 793, 802 (Tex.Crim. App.1993); see also n. 4, supra. Ground two of the State’s motion for rehearing complained of our interpretation on original submission of this portion of Rule 614, but that ground was not granted.
OPINION ON STATE’S MOTION FOR REHEARING McCORMICK, Judge. The offense is capital murder, and the sentence is death. Appellant raised thirty-four points of error on direct appeal. On original submission, this Court sustained points of error seventeen through nineteen, reversed the conviction and remanded the cause for a new trial. We granted grounds three and four of the State’s motion for rehearing. These grounds are directed to this Court’s opinion on original submission disposing of appellant’s points of error seventeen through nineteen which we address later in this opinion. This Court sustains ground three of the State’s motion for rehearing, and affirms the trial court’s judgment. This opinion addresses appellant’s thirty-four points of error. Viewed in the light most favorable to the verdict, the evidence shows that on August 29, 1988, in Harris County, Texas, the unemployed appellant and an accomplice planned a robbery at a pawnshop. They decided to kill all the witnesses because they did not want to be identified. Later that day appellant and the accomplice smoked some “crack” cocaine, walked into a pawnshop and without any warning or provocation appellant eventually shot the two victims in the heads. The murdered victims were brother and sister whose father owned the pawnshop. After shooting the victims, appellant used the butt of his gun to break the glass of a jewelry display case. The gun also discharged shooting appellant’s little finger of his right hand. Appellant and the accomplice took jewelry and money, and “partied” for a couple of days. Several witnesses saw appellant and the accomplice walking in the area of the pawnshop before and just after the killings. Appellant was arrested on September 1, 1988, at about 6:00 p.m. He confessed later that evening at about 8:00 p.m. The next morning appellant was taken before a magistrate who appointed counsel. At guilt-innocence, appellant presented the testimony of Floyd McDonald who had been the director of the Houston Police Laboratory for thirty years. McDonald tested appellant’s urine on September 2, 1988, at appellant’s counsel’s request. Appellant’s urine had a significant concentration of benzoy-lecgonine which led McDonald to believe appellant had ingested cocaine during the previous week. McDonald testified cocaine is broken down to benzoylecgonine once it is ingested into the human body. McDonald could not say exactly when appellant last ingested cocaine. McDonald also testified about the effects of cocaine. He testified cocaine can make a person feel “almost omnipotent,” and can make some persons do things they normally would not do “depending on the individual.” He also testified cocaine is “very, very addictive” if psychological dependence is included as part of the definition of “addiction.” McDonald testified cocaine is more addictive than heroin. On cross-examination, McDonald testified benzoylecgonine can be detected in a person’s urine for up to two weeks after ingestion. McDonald also testified cocaine does not deprive individuals of their “ability to think and make decisions.” McDonald testified how a person would not be considered “under the influence” of cocaine but still test positive for cocaine. “Q. If it’s smoked, it may last up to an hour? “A. Probably, yes, sir. “Q. After that period of time, you would detect the substance in the body, but the person would not be under the influence of it? “A. Right.” McDonald farther testified cocaine might lessen the inhibitions of a person with an “antisocial personality.” “Q. Again, are you familiar with what an antisocial personality is? “A. Yes, sir. “Q. You have a person who has demonstrated that ‘antisocial personality.’ How does that affect him? “A. It might lessen the inhibitions. That’s really what it does. It makes you lower your inhibitions. It ain’t going to change your personality. It’s going to enhance it.” (Emphasis Supplied). At punishment, the State presented the testimony of Dr. Field, a psychologist. Field testified he interviewed appellant in prison in February and April of 1984 primarily because of appellant’s refusal to work. He testified appellant had an IQ of 104 which was above average. He also testified appellant did not have “any kind of psychiatric disorder.” Field testified appellant had an “antisocial personality disorder.” He said individuals with this refuse to “operate inside the law” and have no conscience. He testified these individuals may show remorse but usually “because they have been caught or they have had to pay a penalty” for their behavior. “Q. Would they show any type of remorse for their antisocial behavior? “A. They may show remorse, but that’s because they have been caught or they have had to pay a penalty for what that behavior was, but as far as being remorseful for the actual action itself, no. Not usually.” Field’s opinion was that appellant could not be rehabilitated and he would be a threat to society. Field’s report, which was admitted into evidence, indicated appellant had a history of “drug abuse and some alcohol abuse.” Field testified drugs would not cause a person with an antisocial personality to commit crimes, but drugs would “increase the likelihood of acting out behavior for what usually leads to criminal acts.” “Q. So being on drugs basically doesn’t cause them to commit criminal acts necessarily? “A. No, but drugs increase the likelihood of acting out behavior for what usually leads to criminal acts.” On cross-examination, Field testified drugs might make a person do something they would not do if they were not on drugs. The State also presented evidence of appellant’s two prior burglary convictions and appellant’s military records reflecting his discharge “Under Other Than Honorable Conditions.” Appellant’s prison records reflected numerous reports of misconduct usually involving appellant’s refusal to work. Appellant had been paroled from prison twice when he committed this offense. The State also presented the testimony of Jackson who was doing time on a misdemeanor theft charge in the County jail while appellant was there awaiting trial for this offense. Jackson testified appellant attempted to enlist his aid to kill appellant’s accomplice who also was incarcerated in the county jail. Appellant wanted to poison him. Jackson testified appellant told him he did not trust the accomplice because he “panicked on [appellant] real bad in the pawnshop” which made appellant “extremely nervous.” Appellant expressed no remorse to Jackson for the pawnshop killings. The State also presented the testimony of Bitter who was a narcotics investigator with the Texas Department of Corrections. He testified he investigates narcotics trafficking in the prison system and prepares reports based on his observations. Bitter testified inmates can obtain drugs in the prison system. Appellant presented the testimony of Marquart who was an Associate Professor of Criminal Justice at Sam Houston State University. Marquart testified about the difficulty of predicting future behavior based on his study of 92 inmates whose death sentences had, for one reason or another, been commuted to life. See also Coleman v. State, 881 S.W.2d 344, 358 (Tex.Cr.App.1994). Marquart’s study concluded that “only” about ten percent of these individuals later committed criminal acts of violence. Mar-quart provided no testimony specifically relating to appellant. On cross-examination, Marquart testified that at least one member of his research group committed another homicide. Marquart did not know how many members of his research group had received the death penalty for killing two or more people in a robbery-murder after having twice served time in prison. In point of error thirteen, appellant challenges the sufficiency of the evidence to support an affirmative answer to special issue two which asked the jury to consider whether there is “a probability that [appellant] would commit criminal acts of violence that would constitute a continuing threat to society.” Under the applicable standard of review, we hold, as we did on original submission, the evidence is sufficient to support an affirmative answer to special issue two. See Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Harris v. State, 738 S.W.2d 207, 225-26 (Tex.Cr.App.1986). Point of error thirteen is overruled. In points of error one through three, appellant argues his confession was obtained in violation of Article 38.22, V.A.C.C.P., the Fifth and Fourteenth Amendments to the United States Constitution, and Article I, Section 10, of the Texas Constitution. Appellant claims intoxication due to cocaine use and the pain caused by the bullet wound to his finger rendered him incapable of voluntarily confessing. This Court applies a deferential standard in reviewing a trial court’s ruling on a motion to suppress. See Lucas v. State, 791 S.W.2d 35, 47 (Tex.Cr.App.1989). The State presented the testimony of the officers who arrested appellant and obtained his confession. They testified appellant voluntarily confessed within approximately two hours of his arrest after he had been informed of his rights and waived them. These officers also testified appellant had a bandage on the little finger of his right hand. Appellant did not request medical attention for the injury. Appellant told the police he had taken care of the injury himself, and it was not hurting him. When appellant’s counsel requested medical care for appellant’s finger on September 2nd, the doctor merely required appellant to soak it in a Betadine solution. The officers also testified appellant did not appear to be intoxicated, and he had control of his mental faculties. McDonald testified how a person would not be considered “under the influence” of cocaine but still test positive for cocaine. McDonald also testified cocaine does not deprive individuals of their “ability to think and make decisions.” Appellant’s written statement complies with Article 38.22, Section 2, V.A.C.C.P. And, the record supports findings appellant was informed of his rights, he understood them, he knowingly waived them, and he voluntarily confessed. The record also supports findings appellant’s finger injury and his cocaine use did not render him incapable of voluntarily confessing. See, e.g., Nichols v. State, 754 S.W.2d 185, 189-91 (Tex.Cr.App. 1988), cert. denied, 488 U.S. 1019, 109 S.Ct. 819, 102 L.Ed.2d 808 (1989). Points of error one through three are overruled. In point of error four, appellant claims his confession was obtained in violation of Article 15.17(a), V.A.C.C.P. Article 15.17(a) requires that one making an arrest shall “without unnecessary delay” take the arrestee before a magistrate. The record reflects the police did not take appellant before a magistrate before he confessed even though a magistrate was available. Appellant was taken before a magistrate on the morning of September 2nd. Appellant argues the police violated Article 15.17(a) by not taking him before a magistrate sooner than they did. Appellant claims a magistrate “would have offered counsel to the Appellant and competent defense counsel would not have permitted the Appellant to give a statement adverse to his penal interests.” Appellant was taken before a magistrate within approximately 16 hours after his arrest. This satisfies the “without unnecessary delay” requirement of Article 15.17(a). In addition, appellant voluntarily confessed within two hours of his arrest after he was informed of his rights. The record contains no evidence of a causal connection between any violation of Article 15.17(a) and appellant’s voluntary decision to confess. See Boyd v. State, 811 S.W.2d 105, 124-25 (Tex. Cr.App.), cert. denied, 502 U.S. 971, 112 S.Ct. 448, 116 L.Ed.2d 466 (1991). Appellant also asserts a denial of Equal Protection and other constitutional rights “because of the preferential treatment offered a juvenile as opposed to an adult in relationship to the requisite Magistrate warning.” Appellant did not raise this claim in the trial court. Therefore, he presents nothing for review. See Tex.R.App.Proc. 52(a). Point of error four is overruled. In point of error twenty-nine, appellant claims the trial court erroneously denied his request for a mistrial when appellant’s accomplice was brought into the courtroom in jail clothes for identification purposes. The record reflects that after one of the State’s witnesses had identified appellant as one of the persons he saw walking in the vicinity of the pawnshop before the killings, appellant’s accomplice was brought into the courtroom for identification purposes. The accomplice was wearing jail clothes. Appellant immediately objected and the jury was excused. Appellant claimed bringing the accomplice into the courtroom in jail clothes was not much different than having appellant tried in jail clothes. The trial court sustained the objection, but denied appellant’s motion for mistrial. The accomplice wore civilian clothes the other times he appeared in court for identification purposes. Appellant argues bringing the accomplice into the courtroom in jail clothes violated appellant’s fundamental constitutional right to the presumption of innocence. This record contains no evidence the jury actually saw the accomplice in jail clothes. Appellant’s brief even states it is unclear whether the jury saw the accomplice in jail clothes but “it appears that that is the ease.” Appellant has not presented a sufficient record for this Court to review his claim. See Tex.R.App.Proc. 50(d). Moreover, assuming the jury saw the accomplice in jail clothes, we find no harm. Compare Randle v. State, 826 S.W.2d 943, 945-46 (Tex.Cr.App.1992) with Kimble v. State, 537 S.W.2d 254, 255 (Tex.Cr.App.1976). Point of error twenty-nine is overruled. In point of error thirty, appellant claims the trial court erred in finding from the totality of the circumstances “that appellant’s pretrial identification was not so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” The record reflects the trial court conducted a pretrial hearing on appellant’s Motion for Identification Hearing Outside the Presence of the Jury. The evidence from this hearing indicates the police interviewed the objectionable witness shortly after the pawnshop killings. This witness told the police she saw appellant in the pawnshop shortly before the murders. She knew appellant by the name of “Red,” and she gave the police appellant’s description, nickname, and where he lived. She stated she even spoke to appellant who told her he was looking for a birthday gift for a relative. In his confession, appellant also said that he spoke to the witness inside the pawnshop and that he knew her. The witness also stated appellant left the pawnshop saying he was going across the street to look for another gift. As the witness was leaving the pawnshop in her ear, she honked and waved to appellant who waved back. The police showed the witness appellant’s photograph. She said the photograph was the person she knew as “Red.” The trial court ruled the witness would be permitted to testify before the jury. Appellant claims the identification procedures the police followed were so impermissibly suggestive as to give rise to a substantial likelihood that the witness misidentified appellant. However, the record reflects the witness did not testify at appellant’s trial, and appellant cites to no evidence in the record where her identification of appellant was presented to the jury through the testimony of other witnesses. See Tex. RApp.Proe. 74(f). Therefore, we find no harm since appellant appears to argue a pretrial identification unduly influenced an in-court identification that never occurred. In addition, we find no error in the trial court’s ruling allowing the witness to testify before the jury. The witness knew appellant. Point of error thirty is overruled. In points of error twenty through twenty-two, appellant claims the trial court violated Tex.R.Crim.Evid. 803(8)(B), the Sixth and Fourteenth Amendments to the United States Constitution, and Article I, Sections 10 and 19, of the Texas Constitution, by overruling appellant’s objection to the testimony of Texas Department of Public Safety (DPS) chemist Sandra Denney whose testimony was based on a DPS business record prepared by another DPS employee. Appellant argues the trial court erroneously admitted Denney’s testimony under Cole v. State, 839 S.W.2d 798 (Tex.Cr.App.1990). The State argues appellant failed to preserve any Cole error for appeal. We agree. The record reflects Sandra Denney was the supervisor of the DPS crime lab in Houston. Denney testified at guilt-innocence from a DPS report that was prepared by Donna Dowden who also was a DPS chemist and a serologist specialist. Denney testified from Dowden’s report that Dowden tested various blood samples found at the murder scene as well as a sample of appellant’s blood. Denney testified these blood samples contained the same genetic markers. Den-ney testified based on her calculations that only eight percent of the population had the same genetic characteristics found in appellant’s blood. None of the tested blood samples from the murder scene contained the accomplice’s genetic markers. Dowden’s report also was admitted into evidence as State’s exhibit 98. The record reflects appellant lodged several objections to the admission of Dowden’s report. First, appellant objected to Denney testifying “to the contents of any report that is not in evidence.” When the State offered Dowden’s report for admission into evidence, appellant objected that the proper predicate had not been laid and reliability had not been proven up. “[STATE]: Your Honor, at this time, the State would offer in evidence State’s No. 98 after tendering to [appellant] for his inspection. “[APPELLANT]: I would object to the introduction of State’s 98 for the reason that the proper predicate has not been laid for the introduction of that. In addition thereto, the reliability of this document has not been proven up. “[STATE]: It’s a business record, Your Honor. “[COURT]: Overruled. I will admit State’s 98.” After appellant examined Denney outside the presence of the jury, he objected to the admission of Dowden’s report because the reliability of the document had not been proven. “[APPELLANT]: So the record is clear, the tests that are depicted in State’s 98 are tests that were run by somebody else and not you; is that correct? “[DENNEY]: They were run by a chemist named Donna Dowden. “[APPELLANT]: You had nothing to do with the running of those particular tests? “[DENNEY]: I did not perform those tests. “[APPELLANT]: Even though you had run tests before like what’s depicted in State’s 98, this is not your work, but the work product of Donna Dowden? “[DENNEY]: Yes, sir. “[APPELLANT]: I would further object to the reliability of those test results. They have not been proven. “[COURT]: Overruled. I am admitting 98.” Later, when Denney began to testify about the results of Dowden’s tests, appellant made the same objections he made to the admission of State’s No. 98. “[STATE]: Was there an opinion formed as to the genetic markers of the dried blood compared with [appellant’s] genetic markers? “[DENNEY]: Yes, the chemist concluded— “[APPELLANT]: I would object. The next question is going to be objectionable for the same reasons that I previously set forth before the Court. For the record, do I need to state those again or will you be aware of my reasons? “[COURT]: I am aware of them. I’m overruling them.” On this record, we hold appellant’s objections that the “proper predicate” and “reliability” had not been established failed to clearly present any Cole error to the trial court. See Tex.R.App.Proc. 52(a). Appellant did not object that Denney’s testimony was in contravention of that portion of Tex. R.Crim.Evid. 803(8)(B) which prohibits as hearsay “matters observed by police officers and other law enforcement personnel.” See Cole, 839 S.W.2d at 800 fn. 4. Appellant also made no claim that admission of Denney’s testimony violated the Constitution. See Tex.R.App.Proc. 52(a). In addition, any error in admitting Denney’s testimony was harmless. Her testimony goes to support a finding that appellant was in the pawnshop because some of his blood was found there. However, several other witnesses placed appellant and his accomplice close to the pawnshop before and just after the killings. Moreover, appellant admitted in his confession that he was there and wounded himself, and the jury heard the other evidence about his wounded finger. Appellant even used the evidence of his finger injury in support of his jury arguments at guilt-innocence that he could not have voluntarily confessed. Denney’s testimony could not have caused the jury to convict or to affirmatively answer the special issues. See Tex.R.App.Proc. 81(b)(2). Points of error twenty through twenty-two are overruled. In point of error twenty-three, appellant claims the trial court erred in denying his motion to change venue without a hearing. In points of error twenty-four and twenty-five, appellant claims the trial court violated the Sixth and Fourteenth Amendments to the United States Constitution, and Article I, Section 10, of the Texas Constitution, by denying his motion to change venue without a hearing. The record reflects appellant orally and by written motion requested a change of venue just before the punishment phase of the trial began. The case, including jury selection, had lasted for approximately three months at this point. The trial court granted appellant’s request to make an offer of proof in support of his motion to change venue. “[APPELLANT]: I would ask that the Court allow for an offer of proof to go along with my request for this motion to be carried up for appeal in this case as well as the affidavits attached to that motion and incorporated in the motion itself as an offer of proof that the Defense would offer in evidence to show that these things are prejudicial to the right of a fair trial for this particular Defendant, Your Honor. “[COURT]: I’ll let you do that.” (Emphasis supplied) Appellant’s offer of proof informed the trial court of a series of newspaper articles that began to run that morning in a local newspaper. These articles said that violence, gangs and drugs were prevalent in the prison system, and that some gang members had distinctive tattoos. Appellant also informed the trial court that a local television station was about to present a series of programs about cocaine-related criminal activity. Appellant said he did not file his motion sooner because he could not have “anticipated such a media event prior to [when he filed the motion].” The newspaper articles and television shows had nothing to do with appellant or this case. The trial court denied appellant’s motion because it was not “timely or properly raised.” “[APPELLANT]: Your Honor, I filed a motion for change of venue. The Court has denied it on its face without a hearing. I would ask that the three affidavits to the motion for change of venue go up with it as a proffer of the evidence on appeal the same as if we had had a full-blown hearing on that motion. “[STATE]: We are at the punishment phase of the trial. At this point, there is no procedure to file a motion for change of venue. The Court has given the jury instructions not to listen to, read, or in any way listen to any facts about this particular case. The Court has been very specific in its admonishments to the jury about watching television or reading anything about the case. “[COURT]: I’m going to overrule it. I don’t think it’s timely or properly raised.” (Emphasis supplied) Appellant argues the trial court erroneously denied his motion to change venue without a hearing. The record reflects appellant never requested a hearing, objected to the absence of a hearing, or claimed the Constitution required a hearing. See Tex.R.App.Proc. 52(a). Appellant received all the relief he requested when the trial court granted his request to make an offer of proof in support of his motion to change venue. In addition, on this record, the trial court did not abuse its discretion in denying appellant’s motion to change venue. See Articles 31.03 & 28.01, V.A.C.C.P. Points of error twenty-three through twenty-five are overruled. In points of error five and six, appellant argues the trial court’s admission of Field’s testimony violated appellant’s rights under the Fifth and Fourteenth Amendments to the United States Constitution and Article I, Section 10, of the Texas Constitution. Appellant claims the admission of Field’s testimony violated Estelle v. Smith because Field failed to give Miranda warnings to appellant before the 1984 prison interviews. See Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981); Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The State argues Estelle does not apply here. We agree. The record reflects Field interviewed appellant twice in 1984 while appellant was in prison on a burglary conviction. Field was a psychologist who was employed within the prison system. Field testified he interviewed appellant based on a referral by an assistant warden due to appellant’s “history of consis-tant (sic) refusal and failure to work.” Field testified that when an inmate refuses to work, “there has to be a psychological evaluation as well as a medical evaluation” for the purpose of determining the existence of any “psychopathology.” Field testified there were no charges pending against appellant, and he was not ordered by any court to do the interviews. Field’s diagnosis of appellant as having an antisocial personality and his opinions appellant could not be rehabilitated and would constitute a threat to society were based on the 1984 interviews and hypotheti-cals involving the facts of the case. Field’s 1984 interviews of appellant occurred more than four years before “this offense, the indictment, and the appointment of counsel.” See Cook v. State, 821 S.W.2d 600, 604 (Tex.Cr.App.), cert. denied, 503 U.S. 998, 112 S.Ct. 1705, 118 L.Ed.2d 413 (1991). Field’s examination of appellant “was not in connection with testifying on the issue of future dangerousness; this examination occurred in his capacity” as a psychologist within the prison system for the purpose of determining' the existence of any “psychopathology.” See id.; compare Cates v. State, 776 S.W.2d 170, 172 (Tex.Cr.App.1989) with Paez v. State, 681 S.W.2d 34, 37 (Tex.Cr.App. 1984). Therefore, we cannot say Field’s 1984 interviews of appellant made appellant the “deluded instrument” of his own execution for an offense he committed in 1988. See Estelle, 451 U.S. at 462, 101 S.Ct. at 1873. The trial court did not err in admitting Field’s testimony. See Cook, 821 S.W.2d at 604. Appellant relies on Lykins v. State, 784 S.W.2d 32, 36 (Tex.Cr.App.1989), for the proposition that charges need not be filed at the time a statement is made for Estelle to apply. We find Lykins distinguishable because the oral statement at issue in that case was in response to questioning in connection with an offense for which the defendant was under investigation and later charged. Ly-kins, 784 S.W.2d at 33-34. Here, Field did not interview appellant in connection with this offense. Points of error five and six are overruled. In point of error seven, appellant argues the trial court violated Article 38.22, Section 6, V.AC.C.P., by not allowing appellant to take Field on voir dire outside the presence of the jury to determine the voluntariness of appellant’s 1984 statements to Field. Article 38.22, Section 6, in relevant part, states: “In all cases where a question is raised as to the voluntariness of a statement of an accused, the court must make an independent finding in the absence of the jury as to whether the statement was made under voluntary conditions. If the statement has been found to have been voluntarily made and held admissible as a matter of law and fact by the court in a hearing in the absence of the jury, the court must enter an order stating its conclusion as to whether or not the statement was voluntarily made, along with the specific finding of facts upon which the conclusion was based, which order shall be filed among the papers of the cause.” (Emphasis supplied) The statement of facts from the punishment hearing contains 40 pages of objections appellant made outside the presence of the jury just before the punishment hearing began. Initially, the trial court granted appellant’s request for a hearing outside the presence of the jury “to determine the qualifications [Field] possesse[d] to make such an opinion as to whether or not [appellant’s] right against self-incrimination or right of counsel were violated in making such a statement to a psychologist or psychiatrist while he was in custody without counsel.” “[APPELLANT]: I believe there is a psychiatrist or a psychologist who’s subpoenaed here for an evaluation of [appellant] when he was in the Texas Department of Corrections another time. I believe that’s part and parcel of some of the TDC records in the case. I would just ask, Your Honor, before those records or the testimony of that psychiatrist or psychologist is offered in evidence, that we have a hearing outside the presence of the jury to determine the qualifications that he possesses to make such an opinion as to whether or not [appellant’s] right against self-incrimination or right of counsel were violated in making such a statement to a psychologist or psychiatrist while he was in custody without counsel. “[COURT]: I’ll grant that. We can do that before the psychiatrist or psychologist comes on.” (Emphasis supplied) The next 25 pages of the statement of facts contain discussions about other matters. When the parties began to discuss Field’s testimony again, appellant stated the court “allows [him] a hearing” outside the presence of the jury to “show why [appellant] was seen [by Field] and the voluntariness of [appellant’s] statements” under Estelle. “[STATE]: [Field] will testify that he observed [appellant] for two reasons and was not pursuant to an investigation of any alleged conduct. “[APPELLANT]: I believe the Court allows me a hearing to show why [appellant] was seen [by Field] and the voluntariness of his statements and the basis for [Field] to come up with the diagnosis that he did. “[STATE]: [Field] would testify that he saw [appellant] in April ’84 and also in February ’84. The Court is well aware that this offense occurred on August 29th of ’88. That report would reflect that he wasn’t talking to him in regard to any criminal charge or when any criminal charges were pending. “[APPELLANT]: There were a number of disciplinary hearings and disciplinary reports (referring to other exhibits unrelated to Field’s testimony) that have been made and— “[STATE]: To save time, where it says that it’s the statement of [appellant], we’ll go ahead and white that out (referring to other exhibits unrelated to Field’s testimony). “[THE COURT]: Does that address your objection? “[APPELLANT]: Yes, Your Honor. The oral statements (referring to statements unrelated to