Saldivar v. State (980 S.W.2d 475, 1998)

OPINION

MURPHY, Chief Justice.

Appellant entered a plea of not guilty to the offense of murder. See Tex. Penal Code Ann. § 19.02 (Vernon 1994). A jury found her guilty and assessed punishment at confinement for life in the Institutional Division of the Texas Department of Criminal Justice. In seventeen points of error, appellant contends the trial court erred in: (1) permitting the prosecutor to exclude venire persons solely on account of their race; (2) sustaining the State’s challenge of a venire person; (3) denying certain constitutional protections because the State did not disclose impeachment evidence; (4) admitting her written statement; (5) admitting evidence of extraneous misconduct; (6) denying a requested jury instruction and a special issue; (7) admitting irrelevant and prejudicial opinion evidence at the punishment phase of trial; (8) denying her motion for mistrial because of prosecuto-rial misconduct; and (9) denying her motion for new trial because exhibits have been lost or destroyed. We affirm.

Appellant shot complainant, Selena Quin-tanilla Perez, in the back as complainant walked toward the door of appellant’s room at the Corpus Christi Days Inn. Complainant ran from the room toward the lobby of the motel, screaming. Appellant followed her in armed pursuit. Upon entering the lobby, complainant collapsed. Before passing out, complainant told motel employees that appellant shot her.

In the meantime, appellant returned to her room. Shortly, thereafter, she went to her truck in the motel parking lot, where she was confronted by police officers. For more than nine hours, appellant sat in the truck and threatened to commit suicide. She eventually surrendered to police after conversing for several hours with members of a special hostage negotiation team.

I. Discriminatory Exercise of Peremptory Strike

In her first point of error, appellant contends the trial court erred in permitting the State to exercise its peremptory challenges to exclude venire members solely on account of their race. The Fourteenth Amendment to the United States Constitution prohibits the State from using its peremptory strikes in a racially discriminatory manner. See Powers v. Ohio, 499 U.S. 400, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991); Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). To codify and implement this prohibition in Texas, the Legislature enacted article 36.261 of the Texas Code of Criminal Procedure. See Hill v. State, 827 S.W.2d 860, 863 (Tex.Crim.App.1992). Article 35.261 provides in pertinent part:

After the parties have delivered their lists [of peremptory challenges] to the clerk ... and before the court has impaneled the jury, the defendant may request the court to dismiss the array and call a new array in the case. The court shall grant the motion of a defendant for dismissal of the array if the court determines that the defendant is a member of an identifiable racial group, that the attorney representing the state exercised peremptory challenges for the purpose of excluding persons from the jury on the basis of their race, and that the defendant has offered evidence of relevant facts that tend to show that challenges made by the attorney representing the state were made for reasons based on race. If the defendant establishes a prima facie case, the burden then shifts to the attorney representing the state to give a racially neutral explanation for the challenges. The burden of persuasion remains with the defendant to establish purposeful discrimination.

(b) If the court determines that the attorney representing the state challenged prospective jurors on the basis of race, the court shall call a new array in the case.

Tex.Code CRiM. Proc. Ann. art. 35.261 (Vernon 1989).

The record reflects that appellant’s trial counsel did not raise the Batson challenge until after the jury was seated and sworn. After both parties exercised their peremptory challenges but prior to seating the jury, appellant’s trial counsel requested an opportunity to make a record regarding the trial court’s denial of his request for additional peremptory challenges. Appellant’s trial counsel said, “I need to make a record with regard to that before they are seated with regard to the challenges that you denied me. We had to settle on this jury. I can make that record after you seat them as though I made it now?” The trial judge responded, “That’s correct.” The trial judge asked if everyone had inspected the jury list. Both parties responded that they would like to inspect it. The jury was then sworn and seated. After the trial court released the jury, appellant’s trial counsel objected to the State’s use of its peremptory challenges as follows:

Secondly, Your Honor, with regard to the jury selection, I just want to make a note that the juror — the prosecution has struck all but one of the African-Americans that were on the panel. There’s only one African-American there. They have struck eight African-Americans from the panel. They struck 13, 21, 26, 34, 38, 39, 48, and 49. We demand that the panel be quashed because of the way they did their striking, and they did it in a prejudicial way by striking racially.

The prosecutor objected that the motion was untimely. The trial judge, however, questioned whether the prosecutor was present when appellant’s trial attorney made the objection. After a brief discussion as to whether the objection was preserved, the trial court postponed argument on the motion until the next morning.

The following day, appellant’s trial counsel reminded the trial court that he asked to make objections to the impaneling of the jury and that the court permitted him to do so after the jury was seated. Once again, a discussion ensued regarding when appellant’s trial counsel made the Batson challenge and whether the trial court permitted him to make objections to the impaneling of the jury after the jury was seated. Appellant’s trial counsel finally admitted, ‘Your Honor, let me say this: I had no inclination as to pass the challenge because I hadn’t seen the color of the faces; and then, as they were seated, at the time that they did, I knew that I should do that, and I made it.” Without deciding whether the objection was preserved, the trial judge allowed appellant’s trial counsel to renew his Batson challenge. The prosecutor once again objected, stating the challenge was untimely. When asked, the prosecutor declined the opportunity to state the reasons for striking the African-American venire members and objected that appellant had not met her burden to establish a prima facie case. After hearing argument, the trial court denied appellant’s motion to quash the panel.

The record shows that appellant’s trial attorney did not make a Batson challenge until after the jury was seated and sworn. Still, appellant contends the challenge was timely. She implies the parties discussed the Batson challenge during an unrecorded bench conference, thus explaining the trial court’s response that the prosecutor who objected to the challenge was not present when the objection was made. “Such supposition on the part of this Court, however, cannot substitute for what has actually found its way into the appellate record.” Cockrum v. State, 758 S.W.2d 577, 585 n. 7 (Tex.Crim.App.1988). Because the record reflects that appellant’s trial attorney did not timely object, appellant’s Batson challenge was not preserved for appellate review.

Even if the Batson challenge was untimely, appellant contends her request to strike the panel based on a Batson violation was timely and preserved for review in light of Moss v. State, 877 S.W.2d 895 (Tex.App. — Waco, 1994, no pet.) (opinion on reh’g). Moss is distinguishable from the facts of this case. The defendant in Moss filed a written Batson objection before the trial court called the jurors’ names, but failed to obtain a ruling before the jury was seated and sworn. Id. at 897. “Thus, the objection was timely under article 35.261.” Id. (emphasis in original). The question before the Waco Court of Appeals was whether the objection was preserved for appellate review. See id. That appellate court noted the purpose of requiring a timely specific objection under former rule 52(a) of the Texas Rules of Appellate Procedure is to allow the trial court the opportunity to rule on the complaint and then to proceed with trial in a proper procedural and substantive manner. Id. Consequently, the Waco Court of Appeals found the defendant obtained a timely ruling because the trial court could have granted a mistrial after empaneling the jury if it had found a Batson violation. Id. at 898.

Here, appellant did not make a timely Batson objection. Therefore, she did not preserve error for appellate review. We overrule appellant’s first point of error.

II. Dismissal of Venire Person on State’s Challenge for Cause

In her second point of error, appellant contends the trial court abused its discretion in sustaining the State’s challenge for cause levied against prospective juror Gwendolyn J. Harris and in denying appellant’s requests for additional peremptory challenges. Appellant contends Harris was a qualified venire person; thus, the trial court had no discretion to excuse her under article 35.16 of the code of criminal procedure. Article 35.16 “provides a framework under which unqualified potential jurors may be discovered by the parties and excised from the panel without a need to resort to the exercise of a peremptory strike.” Butler v. State, 830 S.W.2d 125, 130 (Tex.Crim.App.1992) (emphasis in original).

Harris indicated on a juror questionnaire that she had been a witness in a criminal ease involving her girlfriend’s son. While offering her girlfriend support in dealing with the boy, Harris observed police officers make promises to the boy, which were later broken. She also indicated that her sister-in-law had been killed in a drug house several years ago. When asked if she would have a problem with officers testifying in court that would affect her rendering a verdict or interfere with her deliberations in this case, she said she had a problem with officers, but it would not affect her service as a juror in this case. Harris also expressed concern about her children and financial problems that would prevent her from concentrating during trial. Nevertheless, the trial court asked her to return for additional questioning the following day.

Later, Harris expressed concern that her son needed her assistance because he had been suspended from school and she had to take him to see a psychiatrist the next day. She said, “I know I couldn’t honestly sit up here and be a juror when I know I have a 14-year-old child that’s having problems and I’m the only one that can help them.” After the trial judge questioned her about the appointment, Harris asked, “So do I come back tomorrow?” As the trial judge considered whether to excuse Harris, the prosecutor challenged her for cause on the ground that she previously indicated she would have a problem with police officer testimony. The trial judge corrected the prosecutor stating that her problem wasn’t with testimony, to which the prosecutor replied, “It was officers themselves, she said. I asked her if it would effect [sic] her as a juror, and she said it would.” Appellant’s trial attorney asked the court to note his exception and requested additional challenges. The trial judge replied, “Sure, I’ll carry that.” The trial court then excused Harris.

When conducting voir dire, the trial judge has the discretion to excuse a venire person under articles 35.03, 35.16, and 35.19 of the code of criminal procedure. See Butler, 830 S.W.2d at 130. Under article 35.03, the trial judge, upon a reason sufficient to satisfy the court, may excuse an otherwise qualified venire person from jury service. See id. (emphasis in original). Under 35.19, a judge must excuse a venire person who suffers a disability sufficient to absolutely disqualify. See id. (emphasis in original). Under 35.16, a judge must excuse a potential juror proven to be unqualified by either of the parties upon a challenge for cause for one of many reasons enumerated in article 35.16. See id.

Excusing an unqualified venire person under article 35.16, however, is qualitatively different from excusing a qualified venire person for personal reasons under article 35.03. Id. (emphasis in original). The reasons for challenges for causes enumerated in article 35.16 are, “as a matter of law, the only ones which a party may request that a judge rule upon to disqualify a juror, while the judge may, in accordance with Article 35.03, consider any other excusal factor with or without the prompting of counsel.” Id. (emphasis in original). Hardship and family responsibilities are excusable grounds under article 35.03. See Kemp v. State, 846 S.W.2d 289, 294 (Tex.Crim.App.1992).

Although the trial judge did not state his reason for excusing Harris, the record clearly reflects the trial judge relied on his authority under article 35.03, and not on article 35.16. Harris prompted the trial judge for a personal excuse before the prosecutor exerted his challenge. After the prosecutor challenged Hams, the trial judge corrected the prosecutor’s misstatement regarding Harris’s aversion to police testimony. Following some discussion, in which appellant expressed her objection to the State’s challenge, the trial judge excused Harris. Because the trial judge’s decision to excuse venire person Harris for personal hardship was an appropriate exercise of his discretionary authority under article 35.03, we hold that he did not abuse his discretion in excusing Harris. Accordingly, we overrule appellant’s second point of error.

III. Failure to Disclose Impeachment Evidence

In her third point of error, appellant contends she was denied the right to confront and cross-examine witnesses, the right to due process, and the right to effective assistance of counsel because the prosecution did not disclose impeachment evidence regarding the criminal history of a State’s witness. Appellant filed a pretrial motion requesting the State to provide the criminal records of witnesses, and specifically, the criminal history of Norma Marie Martinez. After hearing argument on the motion, the trial court ordered the State to tender for in camera inspection, its record search on the State’s witnesses and particularly on Norma Martinez. A computer search conducted the week before trial revealed no criminal history for Norma Marie Martinez. After the trial court rendered judgment, one of appellant’s trial attorneys received information that led him to conduct a separate investigation of Martinez’s criminal history. Using the name Maria Norma Martinez, appellant’s trial attorney discovered Martinez had been convicted of theft in 1990 and, at the time of trial, had an outstanding warrant for her arrest on a second theft charge. Consequently, appellant filed a motion for new trial claiming newly discovered evidence showed the State failed to disclose exculpatory and impeachment evidence as required by Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The trial court denied the motion for new trial.

The granting or denying of a motion for new trial lies within the discretion of the trial court. See Lewis v. State, 911 S.W.2d 1, 7 (Tex.Crim.App.1995); State v. Gonzalez, 855 S.W.2d 692, 696 (Tex.Crim.App.1993). An appellate court does not sub stitute its judgment for that of the trial court, but rather decides whether the trial court’s decision was arbitrary or unreasonable. Id. To be entitled to a new trial based on newly discovered evidence, appellant must show there is, in fact, new evidence, both competent and material to the case, the existence of which was unknown to appellant at the time of trial. See Jones v. State, 711 S.W.2d 35, 38 (Tex.Crim.App.1986). Second, appellant must show her failure to discover such evidence before trial, or to utilize the evidence, once discovered, at the time of trial, was not a result of any lack of diligence on her part. Id. Generally, new evidence that is merely cumulative, corroborative, collateral, or impeaching is rarely of such weight as likely to bring about a different result. Id.

Appellant contends the newly discovered evidence of Martinez’s criminal history is material to the outcome of the case, and the State’s failure to disclose it deprived her of due process. A prosecutor has an affirmative duty to disclose all material, exculpatory evidence to the defense. See Lagrone v. State, 942 S.W.2d 602, 615 (Tex.Crim.App.), cert. denied, — U.S.-, 118 S.Ct. 305, 139 L.Ed.2d 235 (1997). A prosecutor violates the Due Process Clause of the Fourteenth Amendment of the United States Constitution when he or she fails to disclose material evidence that is favorable to the accused. See Thomas v. State, 841 S.W.2d 399, 404 (Tex.Crim.App.1992). Favorable evidence is any evidence, including exculpatory and impeachment evidence, that, if disclosed and used effectively, may make the difference between conviction and acquittal. Id. (emphasis in original). Evidence is material if it creates a probability sufficient to undermine the confidence in the outcome of the proceeding. Id. A reviewing court determines materiality by examining the alleged error in the context of the entire record and in the context of the overall strength of the State’s case. Id. at 404r-05. The reviewing court may consider any adverse effect the nondisclosure might have had on the preparation or presentation of the defendant’s case in light of the totality of the circumstances and with an awareness of the difficulty of reconstructing the course of the defense and the trial in a post-trial proceeding. Id. at 405.

At the' hearing on the motion, the State’s investigator testified that he searched for the criminal history of Norma Marie Martinez, the name Martinez signed on her statements to the State. Upon receiving the motion for new trial, the investigator ran a second search under the name Maria Norma Martinez and discovered the theft conviction and a second theft conviction, which occurred subsequent to appellant’s trial. The State claimed it had no knowledge of Martinez’s conviction until it received the motion for new trial.

Appellant does not dispute the prosecution’s unawareness of Martinez’s prior conviction or pending charges at trial, but questions the State’s diligence in searching its records. The State’s investigator testified that he did not search for Martinez’s criminal history under any other name except Norma Marie Martinez because she was only a witness and he had no reason to believe she gave an alias. Yet, the Nueces County Sheriffs Department located Martinez’s criminal history using the name Maria Martinez and her date of birth. Moreover, Martinez testified that the State never questioned her about her criminal history and State investigators wrote her name incorrectly on police documents.

The record reflects the prosecutor did not deliberately withhold impeachment evidence from appellant. Yet, the record also reflects the State made little effort to discover the information, which it possessed in its own records. Therefore, we find the State breached its affirmative duty to disclose impeachment evidence to which appellant was entitled.

Nevertheless, we do not find the conviction evidence to be material for impeachment purposes. While appellant’s trial counsel could have offered Martinez’s theft conviction, if disclosed, to impeach her credibility,with jurors, Martinez’s inconsistent statements permitted appellant’s trial counsel to accomplish the same goal on cross-examination. In a sworn statement to police on the day of the murder, Martinez claimed she saw appellant shoot complainant and run to her vehicle. On cross-examination at trial, however, she admitted that she saw appellant chasing complainant but did not see appellant shoot complainant. Instead, Martinez said she heard a shot and then saw appellant come out of the room, pointing a gun at complainant. She claimed she did not see appellant run to her vehicle although she admitted she might have told police that she did on the day of the murder. Martinez also testified she heard appellant yell “bitch” at complainant, but admitted she did not tell police about appellant’s epithet in her statement on the day of the incident. Moreover, Martinez described appellant’s gun as really big, like a cowboy gun with a long barrel, while the evidence at trial showed the gun to be a snub-nose revolver.

Furthermore, the State’s ease against appellant was strong. In total, the State offered the testimony of thirty-three witnesses and more than 122 exhibits. Of the eighteen volumes of testimony in the guilt-innocence phase of trial, Martinez’s testimony encompasses only fifty-two pages. For the most part, Martinez’s testimony was cumulative of the testimony of other witnesses. Although she was the only witness to hear appellant yell “bitch” at complainant, Martinez was one of several who observed appellant chasing complainant while pointing the gun at her. For these reasons, we conclude Martinez’s criminal history is not evidence that creates a probability sufficient to undermine the confidence in the outcome of the proceeding.

Appellant also argues that the State’s failure to disclose Martinez’s criminal record deprived her of the right to cross-examine Martinez and to the effective assistance of counsel. Because evidence of Martinez’s conviction was immaterial to the outcome of appellant’s trial, we decline to address these arguments. The trial court did not err in overruling appellant’s motion for new trial. Appellant’s third point of error is overruled.

IV. Admissibility of Appellant’s Written Statement

In her fourth and fifth points of error, appellant contends the trial court erred in denying her motion to suppress her written statement in violation of her right to counsel under the Fifth Amendment of the United States Constitution, Article I, Section 10 of the Texas Constitution, and article 38.22 of the Texas Code of Criminal Procedure. At a hearing on a motion to suppress, the trial court is the sole and exclusive trier of fact and judge of the credibility of the witnesses as well as the weight to be given their testimony. See Green v. State, 934 S.W.2d 92, 98-99 (Tex.Crim.App.1996), cert. denied, — U.S. -, 117 S.Ct. 1561, 137 L.Ed.2d 707 (1997); Romero v. State, 800 S.W.2d 539, 543 (Tex.Crim.App.1990). The trial judge may choose to believe or disbelieve any or all of a witness’ testimony. See Allridge v. State, 850 S.W.2d 471, 492 (Tex. Crim.App.1991). This Court, thus, is not at liberty to disturb any finding that is supported by the record. See Johnson v. State, 803 S.W.2d 272, 287 (Tex.Crim.App.1990), overruled on other grounds by Heitman v. State, 815 S.W.2d 681 (Tex.Crim.App.1991); Atkins v. State, 919 S.W.2d 770, 773 (Tex.App. — Houston [14th Dist.] 1996, no pet.).

A. Invocation of Right to Counsel

In her fourth point of error, appellant contends her written statement was inadmissible under the Fifth Amendment to the United States Constitution because she unambiguously requested an attorney to assist her in questioning before she surrendered to authorities and the State did not honor her request before obtaining her statement. To effectuate the right against self-incrimination under the Fifth Amendment, police must cease all interrogation once a suspect invokes her right to counsel or until the suspect re-initiates conversation. See Minnick v. Mississippi 498 U.S. 146, 153, 111 S.Ct. 486, 112 L.Ed.2d 489 (1990); Dinkins v. State, 894 S.W.2d 330, 350 (Tex.Crim.App.1995). Consequently, when a suspect has invoked her right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that she responded to further police-initiated custodial interrogation even if she has been advised of her rights. See Jones v. State, 742 S.W.2d 398, 404 (Tex.Crim.App. 1987) (citing Edwards v. Arizona, 451 U.S. 477, 484, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981)).

A person invokes the right to counsel when she indicates that she desires to speak to an attorney or have an attorney present during questioning. See Dinkins, 894 S.W.2d at 351. “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.” Id. The right to counsel is not inherent within the Fifth Amendment, but a prophylactic measure provided under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Id. (addressing issue of ambiguous invocations of right to counsel). Therefore, “[t]he prohibition against continued questioning following an invocation of the right to counsel is ‘justified only by reference to its prophylactic purpose.’ ” Id. (quoting Davis v. U.S., 512 U.S. 452, 458, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994)). Accordingly, a court must focus on whether a suspect actually invokes her rights. Id. The inquiry is purely objective: whether a reasonable officer in light of the circumstances would understand the statement to be a request for an attorney. Id. at 351-152. Consequently, when reviewing allegations of the right to counsel, an appellate court examines the totality of the circumstances surrounding the interrogation and the alleged invocation. See Dinkins, 894 S.W.2d at 351.

At the pretrial hearing on appellant’s motion to suppress her confession, Sergeant Paul Rivera testified that he instructed “the personnel with the negotiating team to bring appellant to the police station so that we could talk to her.” He said upon her arrival, she was placed in an interview room and warned of her constitutional rights. Rivera further stated that appellant voluntarily initialed the warnings read to her from a police form and indicated she understood the rights. Thereafter, appellant gave her written statement. After hearing other testimony and argument, the trial court denied appellant’s pretrial motion to suppress her written statement. In its findings of fact and conclusions of law, the trial court found appellant knowingly, intelligently and voluntarily waived her rights and gave a statement to police. During trial, the trial court reconsidered appellant’s motion to suppress after admitting audiotapes made during the parking lot standoff and after hearing the testimony of two members of the special negotiation team who facilitated appellant’s surrender.

Appellant contends the officers’ testimony and the following excerpt of the audiotape of the negotiations reflects her clear and unequivocal invocation of her right to counsel:

YOLANDA SALDIVAR: “Larry, I don’t wanna live. I don’t wanna live.”

OFFICER YOUNG: “Do you wanna talk to your attorney?”

YOLANDA SALDIVAR: (Crying.) OFFICER YOUNG: ‘You wanna get-do you want — When you come out of the truck, do you wanna call him, first? Richard? Richard Garza?”

YOLANDA SALDIVAR: (Crying.) OFFICER YOUNG: “Isn’t that-isn’t that what you said his name was?” YOLANDA SALDIVAR: ‘Yes.”

OFFICER YOUNG: “You wanna talk to him, first?”

YOLANDA SALDIVAR: “Yes.” (Crying.)

Officer Larry Young, a member of the negotiation team, acknowledged that he offered to call an attorney for appellant, but testified that he did not promise appellant an attorney as soon as she surrendered to police. Young said he fulfilled all of his promises to appellant except letting her use the phone. Officer Isaac Valencia, another member of the negotiation team, testified that the team offered to call an attorney because appellant “needed to have a hope to talk to somebody else.” During negotiations, Valencia talked with Richard Garza, an attorney who had represented appellant’s family in other matters. Valencia said Garza was apprehensive about talking to him, but assisted him after Valencia stressed that he was not conducting a criminal investigation but gathering personal information to build a rapport with appellant. Both officers testified they did not attempt to procure an attorney for appellant after her surrender.

After hearing argument outside the jury’s presence, the trial court denied appellant’s motion to suppress her written statement. In its findings of fact and conclusions of law, the trial held the negotiations with police during the standoff did not constitute custodial interrogation and appellant never clearly and unambiguously invoked her right to counsel during the standoff.

Reviewing the record in light of the totality of the circumstances surrounding the parking lot standoff, we find the record supports the trial court’s findings of fact and conclusions of law. The record reflects that appellant did not clearly and unambiguously invoke her Fifth Amendment right to counsel as provided in Miranda. At most, the negotiation team offered her an opportunity to talk with an attorney.

Moreover, appellant did not invoke the right to counsel during custodial interrogation as required by Miranda. See Green v. State, 934 S.W.2d 92, 97 (Tex.Crim.App.1996) (stating invocation of Fifth Amendment right requires at minimum some expression of desire for the assistance of counsel in dealing with custodial interrogation by the police), cert. denied, — U.S.-, 117 S.Ct. 1561, 137 L.Ed.2d 707 (1997). Although appellant was clearly surrounded by police and could not escape the parking lot during the standoff, she was armed and not restrained. The communications between the negotiation team were clearly not intended to elicit an incriminating response. See Cooks v. State, 844 S.W.2d 697, 735 (Tex.Crim.App.1992) (stating interrogation connotes a “calculated” practice on the part of a government official in an attempt to evoke an incriminating response). The negotiations regarding her surrender, therefore, cannot be characterized as custodial interrogation. See Hernandez v. State, 819 S.W.2d 806, 815 (Tex.Crim.App.1991). Because she did not invoke her right to counsel, police officers acted properly by providing her with the Miranda warnings and obtaining a waiver of her rights before initiating custodial interrogation at the police station. Accordingly, we overrule appellant’s fourth point of error.

B. Misstatement of Statutory Warning Before Interrogation

In her fifth point of error, appellant asserts her confession is involuntary and therefore, inadmissible under article 38.22 of the code of criminal procedure, the Fifth Amendment to the United States Constitution, and Article I, Section 10 of the Texas Constitution because members of the negotiation team told her that her statement could be used for her. Appellant claims Officers Young and Valencia violated these provisions when they repeatedly told her during negotiations that they wanted to help her, that it was in her best interest to publicly tell her story, and that the Lord, Himself, wanted her to publicly tell her story. In spite of the inappropriateness of these warnings, appellant asserts, the trial court admitted her written statement over objection.

Appellant, however, did not urge an article 38.22 objection or a constitutional objection to the admission of her statement at trial on the grounds that Officers Young and Valencia misstated the warnings before or during custodial interrogation. Appellant urged an article 38.22 objection at the pretrial hearing on the motion to suppress her written statement regarding proceedings that occurred after the police administered the warnings at the police station. The trial court heard no evidence regarding the standoff negotiations at the pretrial hearing.

Appellant voiced another objection to the admissibility of her statement after the trial court admitted the audiotapes and the testimony of Officers Young and Valencia. At the hearing outside the jury’s presence, appellant objected to the admissibility of the statement on the ground that she invoked her right to counsel during the standoff and the State dishonored her request. The trial court entertained no objection and heard no argument regarding the officers’ allegedly inappropriate warnings at this hearing. Finally, appellant reurged all of her previous objections when the trial court admitted her written statement. Because appellant did not object at trial on the ground she now asserts on appeal, she waives review of this point of error. See Serrano v. State, 936 S.W.2d 387, 390 (Tex.App. — Houston [14th Dist.] 1996, pet ref d) (stating even constitutional errors may be waived by failing to object at trial). Accordingly, we overrule appellant’s fifth point of error.

V. Evidence of Extraneous Misconduct

In her sixth through eleventh points of error, appellant complains of trial error in admitting evidence of extraneous misconduct and in failing to give the jury a limiting instruction regarding extraneous misconduct. In her seventeenth point of error, appellant contends she is entitled to a new trial because the documents related to the extraneous offense were lost or destroyed without her fault.

A. Admissibility of Extraneous Misconduct Evidence

An appellate court reviews the trial court’s- decision to admit or exclude evidence under an abuse of discretion standard. See Green, 934 S.W.2d at 102; Montgomery v. State, 810 S.W.2d 372, 379-80 (Tex.Crim.App.1990) (opinion on reh’g). Therefore, as long as the trial court’s ruling is within the zone of reasonable disagreement, the appellate court will not intercede. See Montgomery, 810 5.W.2d at 391.

In point of error six, appellant contends the trial court abused its discretion in admitting evidence of extraneous misconduct because the State did not give adequate, timely notice as required by rule 404(b) of the Texas Rules of Criminal Evidence. Former rale 404(b) prohibits the admission of evidence of extraneous offenses committed by the defendant for the purpose of proving her character by showing she acted in conformity with that character on the occasion in question. See Tex.R.Crim. Evid. 404(b), 49 Tex. B.J. 223 (1986) (current version at Tex.R. Evid. 404(b)); see Santellan v. State, 939 S.W.2d 155, 168 (Tex.Crim.App.1997). Evidence of extraneous misconduct is admissible, however, to show proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident provided that upon timely request the State provides reasonable notice in advance of trial of its intent to introduce evidence of the extraneous misconduct in its ease-in-chief. See Tex.R. Evid. 404(b), 49 Tex. B.J. 223 (1986).

At a pretrial hearing on discovery motions held two months before trial, appellant asked the trial court to rule on her rule 404(b) motion requesting notification of the State’s intent to introduce evidence of an extraneous offense in its case-in-chief. At that time, the State indicated its intent to introduce evidence that Quintanilla thought appellant was embezzling funds and confronted her about it. Because the record reflects that appellant received reasonable notice as required by rale 404(b), we find the trial court did not abuse its discretion in admitting extraneous offense evidence. Appellant’s sixth point of error is overruled.

In her eighth point of error, appellant contends the trial court abused its discretion in admitting evidence of extraneous misconduct during the guilt-innocence phase of the trial because the evidence was irrelevant and prejudicial, and the State did not prove embezzlement beyond a reasonable doubt. To preserve error in the admission of extraneous offenses under the rules of evidence, the opponent of extraneous offense evidence must first object under rule 404(b). See Santellan, 939 S.W.2d at 168; Harrell v. State, 884 S.W.2d 154, 161 n. 14 (Tex.Crim.App.1994); Montgomery, 810 S.W.2d at 387. The State must then “show the proffered evidence is relevant apart from its tendency to show that the defendant is a criminal.” Harrell, 884 S.W.2d at n. 14. At the defendant’s request, the trial court should then require the State to articulate the limited purpose for which the evidence is offered. Id. In making a determination as to the relevancy of the evidence, the trial court must, under rule 104(b) of the rales of criminal evidence, determine, “at the proffer of the evidence, that a jury could reasonably find beyond a reasonable doubt that the defendant committed the extraneous offense.” Id. at 160; Tex.R.Crim. Evid. 104(b), 49 Tex. B.J. 221 (1986) (current version at Tex.R. Evid. 104(b)). If the trial court determines the evidence is relevant, the defendant must further object under rule 408 and obtain a ruling as to whether the probative value of the evidence is substantially outweighed by its prejudicial effect. See Tex.R.Crim. Evid. 403, 49 Tex. B.J. 223 (1986) (current version at Tex.R. Evid. 403); Harrell, 884 S.W.2d at n. 14.

Appellant did not raise a rule 404(b) or a rule 403 objection when Quintanilla testified at trial that he thought appellant was embezzling funds from the Selena fan club. Instead, appellant objected that she had been denied discovery of the records supporting Quintanilla’s testimony. Appellant did not raise a rule 404(b) or rule 403 objection to the testimony of Chris Perez, complainant’s husband, who testified that he and complainant removed appellant from complainant’s checking accounts because they did not trust her. Moreover, appellant did not object on the basis of rules 404(b) and 403 to the testimony of complainant’s sister, Suzette Ar-riaga. Arriaga testified, over a hearsay objection, that complainant intended to fire appellant because she thought appellant was embezzling funds from complainant’s company. Consequently, appellant failed to preserve error to the admission of extraneous offense evidence. Appellant’s eighth point of error is overruled.

In points ten and eleven, appellant contends the trial court erred by not giving the jury a limiting instruction regarding extraneous misconduct as required by rule 105(a) of the Texas Rules of Criminal Evidence and by refusing her request to instruct the jury in the court’s charge as to the limited use of the extraneous offense evidence and the standard of proof it must apply in considering the evidence. Former rule 105(a) requires the trial court, upon request, to restrict evidence to its proper scope and to instruct the jury accordingly, when evidence is admitted for a limited purpose. See Tex.R.Crim. Evid. 105(a), 49 Tex. B.J. 221 (1986) (current version at Tex.R. Evid. 105(a)); Abdnor v. State, 871 S.W.2d 726, 738 (Tex.Crim.App.1994) (stating when extraneous offenses are admitted for a limited purpose, defendant is entitled, on timely request, to instruction by the trial judge to the jury limiting its consideration of the extraneous offenses to those purposes for which they are admitted). Moreover, “if the defendant so requests at the guilt/innocence phase of trial, the trial court must instruct the jury not to consider extraneous offense evidence admitted for a limited purpose unless it believes beyond a reasonable doubt that the defendant committed the extraneous offense.” George v. State, 890 S.W.2d 73, 76 (Tex.Crim.App.1994).

A party opposing evidence, nevertheless, has the burden of objecting and requesting a limiting instruction at the introduction of the evidence. See Garcia v. State, 887 S.W.2d 862, 878-79 (Tex.Crim.App.1994). “Once evidence is received without a proper limiting instruction, it becomes part of the general evidence in the case and may be used as proof to the full extent of its rational persuasive power.” Id. Once admitted, evidence that might have been inadmissible for certain purposes if the proper objection had been made, is not limited in its use. Id.

In this case, appellant did not make a proper objection to the admission of unadju-dicated extraneous offense evidence and did not request a limiting instruction when the State proffered the evidence at the guilt-innocence phase of trial. Therefore, appellant forfeited any error and the trial court admitted the evidence as probative of any question to which it was relevant. Thus, the trial court did not err by not charging the jury with a limiting instruction regarding extraneous offense evidence. We overrule appellant’s tenth and eleventh points of error.

In point of error nine, appellant maintains the trial court erred in admitting harmful hearsay regarding extraneous misconduct in violation of her right to confront and cross-examine witnesses as guaranteed by the United States and Texas Constitutions. Appellant specifically complains about the admissibility of Perez’s statement that complainant did not trust appellant and Arriaga’s testimony that complainant was going to fire appellant because complainant thought appellant was embezzling funds from her company. The State contends appellant did not preserve error in both instances. In the alternative, the State contends Arriaga’s testimony was admissible as an exception to the hearsay rule.

On direct examination, Perez testified that he and complainant removed appellant as a signatory to complainant’s business checking accounts. When asked why they removed appellant as a signatory, Perez testified, over a hearsay objection, that “Selena and I didn’t trust her.” Then without further objection, Perez testified as follows:

Q. (By Mr. Valdez) Why didn’t you trust her?

A. Because there was a lot of things that were coming up, you know, unaccounted for; and we couldn’t get an explanation that we were satisfied with for some of those things.

Q. And do you remember approximately how long before she was killed, approximately?

A. That we did that?

Q. That you removed her from the accounts?

A. Maybe about two weeks.

Q. Did you fire Yolanda Saldivar?

A. Yes, we did. I remember there was a phone conversation where Selena said that she couldn’t trust her anymore. It was after that meeting that took place at the shop.

Generally, a party waives error regarding improperly admitted evidence if the same evidence is later admitted without objection. See Rogers v. State, 853 S.W.2d 29, 35 (Tex.Crim.App.1993); House v. State, 909 S.W.2d 214, 216 (Tex.App. — Houston [14th Dist.] 1995) (stating any error in allowing inadmissible evidence is cured when the same evidence comes in without objection elsewhere in trial), ajfd, 947 S.W.2d 251 (Tex.Crim.App.1997). In this case, Perez repeated his previous statement that complainant did not trust appellant without objection. Therefore, it is of no consequence whether Perez’s testimony constituted inadmissible hearsay because appellant did not properly preserve error.

On the other hand, appellant preserved error as to her claims that Arriaga’s testimony constituted inadmissible hearsay. Following Perez’s testimony, Arriaga testified about the meeting in Quintanilla’s office when Quintanilla confronted appellant about the fan club discrepancies. Arriaga testified she spoke with complainant in her home a week or so after the meeting. When the prosecutor asked Arriaga about her conversation with complainant, appellant objected to the testimony as hearsay and requested a limiting instruction. The prosecutor argued Arriaga’s testimony was an exception to the hearsay rule as a statement of complainant’s emotional intent or state of mind. Outside the jury’s presence, the trial court heard argument from counsel regarding the testimony. Appellant’s trial attorney argued the testimony was clearly hearsay as follows:

“It’s clearly a hearsay statement of Selena. Selena’s not here for us to cross-examine. It is not a present sense about the offense itself, which is when that rule can come into play. Going to fire doesn’t have anything to do with the shooting and I object. We can’t cross-examine Selena, she’s not here, she’s not available as a witness.”

Both sides agreed the statement, “I’m going to fire Yolanda,” was a statement of what complainant was going to do, although they disagreed whether the statement went to complainant’s state of mind. The trial court overruled the objection. Arriaga then testified that complainant “said that she was going to fire Yolanda because she thought she was embezzling from her company.”

Hearsay is a “statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Tex. R.Crim. Evid. 801(d), 49 Tex. B.J. 229 (1986) (current version at Tex. R. Evid. 801(d)); Jackson v. State, 889 S.W.2d 615, 616 (Tex.App. — Houston [14th Dist.] 1994, pet. refd). Hearsay is inadmissible at trial except as provided by statute or by the rules of criminal evidence. See Tex.R.Crim. Evid. 802, 49 Tex. B.J. 280 (1986) (current version at Tex.R. Evid. 802); Long v. State, 800 S.W.2d 545, 547 (Tex.Crim.App.1990). Former rule 803(3) of the rules of criminal evidence provides for the admissibility of a “statement of the declarant’s then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, or bodily health)”; it does not permit a statement of memory or belief to prove the fact remembered or believed. Tex. R.Crim. Evid. 803(3), 49 Tex. B.J. 230 (1986) (current version at Tex.R. Evid. 803(3)).

In this case, Arriaga’s statement consists of two distinct clauses. In the first, Arriaga states complainant told her she was going to fire appellant. Although appellant specifically objected to this clause at trial on the ground that the statement did not go to complainant’s state of mind, she conceded the clause was a statement of what complainant was going to do. “Texas courts have admitted as an exception to the hearsay rule state of mind statements looking into the future.” Norton v. State, 771 S.W.2d 160, 165 (Tex. App. — Texarkana 1989, pet. refd) (citations omitted); see also Blount v. Bordens, Inc., 892 S.W.2d 932, 937 (Tex.App. — Houston [1st Dist.] 1994) (noting “[c]ourts have favored the admission of statements that show the declarant’s then-existing intent to perform an act in the future”), rev’d on other grounds, 910 S.W.2d 931 (Tex.1995). Moreover, complainant’s intent to terminate appellant’s employment was relevant to show the state of the relationship between complainant and appellant at the time of the shooting and to establish a motive for the shooting. Therefore, the statement was admissible as a state-of-mind exception to the hearsay rule.

The second clause of Arriaga’s statement, that complainant thought appellant was embezzling from her company, does not fall within the rule 803(3) exception. Instead, the clause denotes complainant’s belief about appellant’s past actions, which rule 803(3) specifically prohibits. See Tex. R.Crim. Evid. 803(3), 49 Tex. B.J. 230 (1986) (current version at Tex.R. Evid. 803(3)). Therefore, the trial court abused its discretion in admitting the second clause of Arria-ga’s statement. Nevertheless, our review of the record in its entirety leads us to conclude that the error did not affect a substantial right of the appellant. See Tex.R.App. P. 44.2(b); King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App.1997). A substantial right is affected when the error had a substantial and injurious effect or influence in determining the jury’s verdict. See King, 953 S.W.2d at 271 (citing Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946)).

There are several reasons the admission of Arriaga’s statement is harmless. First, her testimony regarding complainant’s belief that appellant was embezzling funds was brief. The State did not offer any documentary evidence to support Arriaga’s embezzlement allegation and did not pose any additional questions to Arriaga regarding the allegation.

Second, any potential harm was defused by other evidence, which the trial court admitted without proper objection. For instance, Quintanilla testified that he confronted appellant in complainant’s presence about discrepancies in fan club records and his intent to pursue the matter legally. Perez also testified that he and complainant did not trust appellant because appellant could not give an adequate explanation to their questions regarding business matters. He further testified that complainant fired appellant.

Third, the State did not emphasize Arria-ga’s statement in closing argument at the guilt-innocence phase of trial. Instead, the prosecutor recounted Arriaga’s testimony as follows:

Also, Suzette testified to you that that [sic] Saturday before Selena was over for dinner, over at her house, and Selena told her that she was planning to fire the defendant because she thought that something was going on. But there was some evidence that she needed to finish that business in Mexico.

Even if the jurors considered Arriaga’s statement, it is unlikely they would have placed any substantial weight on it. Accordingly, the admission of this evidence was not substantial or injurious.

Appellant, nevertheless, contends the admission of Perez’s and Arriaga’s testimony violated her rights under the Confrontation Clause of the United States and the Texas Constitutions. Hearsay, even if admissible under one of the evidentiary exceptions, may violate the Confrontation Clause of the Sixth Amendment to the United States Constitution and Article I, Section 10, of the Texas Constitution. See Idaho v. Wright, 497 U.S. 805, 817, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990) (holding unless hearsay evidence either “falls within a firmly rooted hearsay exception” or is supported by a “showing of particularized guarantees of trustworthiness,” it is inadmissible under the Confrontation Clause of the Sixth Amendment); Gonzales v. State, 818 S.W.2d 756, 762-63 (Tex.Crim.App.1991) (noting Article I, Section 10, of Texas Constitution may afford greater right of confrontation than does Sixth Amendment to United States Constitution); Judd v. State, 923 S.W.2d 135, 138-39 (Tex.App. — Fort Worth 1996, pet. refd) (noting federal and state protection of confrontation).

Appellant, however, objected at trial on the ground of hearsay, not on the ground that the admission of hearsay violated her right of confrontation under either the state or federal constitutions. Therefore, appellant did not preserve error for appellate review. See Serrano, 936 S.W.2d at 390. Accordingly, we overrule appellant’s ninth point of error.

B. Discovery of Extraneous Offense Evidence

In point of error seven, appellant contends the trial court abused its discretion and violated article 39.14 of the code of criminal procedure by denying her pretrial request for discovery of Selena fan club records, specifically those Quintanilla acquired shortly before complainant’s death from the current fan club president. Appellant also argues the trial court erred by overruling her request for production of the documents as required by rule 611 of the rules of criminal evidence when Quintanilla testified about fan club records at trial. Because she was denied discovery of these documents, appellant claims she was denied due process of law, the right to confront and cross-examine witnesses, and the effective assistance of counsel when Quintanilla testified he believed appellant was embezzling funds from the fan club.

A defendant in a criminal trial does not have a general right to discovery of evidence in possession of the State. See Kinnamon v. State, 791 S.W.2d 84, 91 (Tex.Crim.App.1990), overruled on other grounds by Cook v. State, 884 S.W.2d 485 (Tex.Crim.App.1994). Article 39.14, however, provides limited discovery, independent of the constitutional right of access to exculpatory evidence. See id. Nevertheless, decisions involving pretrial discovery of evidence which is not exculpatory, mitigating, or privileged are within the discretion of the trial court. See id.

Article 39.14 provides that upon a timely motion showing good cause and notice to the other party, the trial court may order the State to provide discovery of designated documents, papers, written statements of the defendant, books, accounts, letters, photographs, objects, or tangible things not privileged, which constitute or contain evidence material to any matter involved in the action and which are in the possession, custody, or control of the State or any of its agencies. See Tex.Code Crim. Proc. Ann. art. 39.14 (Vernon 1979). In this case, the trial court permitted appellant and the State limited discovery of complainant’s business records that were in Quintanilla’s possession by means of a subpoena duces tecum. At the trial court’s request, Quintanilla turned over two boxes of business records to his attorney who remitted the boxes to the State. Quin-tanilla stated he thought the fan club records were in one of the boxes. The trial court inspected the boxes in camera and disclosed several documents to both parties, but did not disclose the fan club records to either party. Appellant tendered the documents in her possession to the trial court as Court Exhibit 1, but neither party ever offered the documents at trial. The undisclosed documents remaining in the two boxes after the trial court’s inspection were not offered into evidence or placed in the trial court’s file and are not before this Court.

As a general rule, evidence willfully withheld from disclosure under a discovery order should be excluded from evidence. See Pena v. State, 864 S.W.2d 147, 149 (Tex.App. — Waco 1993, no pet.) (noting same hold ing in Hollowell v. State, 571 S.W.2d 179, 180 (Tex.Crim.App. [Panel Op.] 1978)). There is no evidence the State willfully withheld fan club records from appellant. Moreover, there is no evidence the State ever possessed the records or had access to the records, apart from those the trial court disclosed to appellant. Instead, the record reflects that the trial court exerted its discretion in providing limited discovery of complainant’s business records after reviewing the content of the boxes in camera. Because the documents and records were Quintanilla’s private papers and not part of the State’s file, we cannot say the trial court abused its discretion in disclosing the documents in Court Exhibit 1 to both parties and declining to disclose others.

Appellant also contends the trial court abused its discretion in denying her request for production of Selena fan club records when Quintanilla testified at trial. Former rule 611 of the Texas Rules of Criminal Evidence provides when a “witness uses a writing to refresh his memory for the purpose of testifying either while testifying or before testifying, an adverse party is entitled to have the writing produced at the hearing to inspect it, to cross-examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness.” Tex.R.Crim. Evid. 611, 49 Tex. B.J. 228 (1986) (current version at Tex.R. Evid. 612). Nevertheless, appellant is only entitled to fan club records if Quintanilla actually used the records to refresh his memory. See Pondexter v. State, 942 S.W.2d 577, 582 (Tex.Crim.App.1996), cert. denied, - U.S. -, 118 S.Ct. 85, 139 L.Ed.2d 42 (1997). In this case, there is no evidence that Quintanilla used the fan club records to refresh his memory during or before his testimony. Outside the jury’s presence, Quintanilla testified about the specific documents he thought were proof that appellant was embezzling funds, but he never stated he used those documents to refresh his memory at any time. Therefore, appellant’s contention under rule 611 must fail. Because the trial court did not abuse its discretion in denying appellant’s pretrial discovery request for fan club records and her request for the documents during trial, we overrule appellant’s seventh point of error.

C. Limiting Instruction Extraneous Offense

In her twelveth point of error, appellant alleges the trial court did not properly inform the jury regarding the voluntariness of her conduct by overruling her objection to paragraph six of the jury charge and by refusing a requested instruction on the issue. “When reviewing charge errors, an appellate court must undertake a two-step review: first, the court must determine whether error actually exists in the charge, and second, the court must determine whether sufficient harm resulted from the error to require reversal.” Abdnor v. State, 871 S.W.2d 726, 732 (Tex.Crim.App.1994).

In Defendant’s Objections to the Charge, appellant specifically objected to paragraph six of the court’s charge, which applies the law to the facts of the case.

Now, if you believe from the evidence beyond a reasonable doubt that YOLANDA SALDIVAR on or about March 31, 1995, in Nueces County, Texas [sic] did then and there intentionally or knowingly cause the death of an individual, Selena Quintanilla Perez, by shooting Selena Quintanilla Perez with a firearm or that the defendant on or about March 31, 1995, in Nueces County, Texas [sic] did then and there with the intent to cause serious bodily injury to an individual, Selena Quintanil-la Perez, do the act of shooting Selena Quintanilla Perez with a firearm; that this act was clearly dangerous to human life; and that this act caused the death of Selena Quintanilla Perez, but you further find from the evidence, or you have a reasonable doubt thereof, that the defendant did not voluntarily engage in said conduct as that term has been defined above, then you will find the defendant not guilty.

Appellant argued the paragraph did not adequately apply the law to the facts as proven in the case because it did not limit the jury’s determination of voluntary conduct to her specific conduct at the time the gun discharged. Appellant asserted that the facts reflected, at the time of the fatal shot, she was threatening suicide by holding a loaded, cocked revolver to her head and the gun discharged as she waved it toward the door in her motel room.

Appellant requested the following instruction regarding voluntariness of her conduct:

You are instructed that a person commits an offense only if she voluntarily engages in conduct, including an act, an omission or possession. Conduct is not rendered involuntary merely because the person did not intend the results of her conduct.

Now, if you believe from the evidence beyond a reasonable doubt that on or about the 31st day of March, 1995, in Nueces County, Texas, that Selena Quin-tanilla Perez, suffered injuries from a firearm and that she died as a result thereof, but you further find from the evidence, or you have a reasonable doubt thereof, that YOLANDA SALDIVAR, while threatening suicide and holding a loaded, cocked firearm to her own head, waved the gun toward the door and in doing so the firearm involuntarily discharged thereby causing the injuries to Selena Quintanilla Perez, then you will find the defendant not guilty.

The trial court overruled the objection to the charge and refused the requested instruction.

On appeal, appellant asserts paragraph six is defective because it informs the jury not to consider voluntariness unless and until it is convinced appellant acted with the intent or knowledge that the death would occur, thus precluding a juror wavering on intent from considering the voluntariness issue. Appellant claims her requested instruction cures the defect because “it informs the jury that if it believes the death occurred, it may consider the voluntariness of the act which caused the death.”

Proof of both a culpable mental state and a criminal act, committed voluntarily, are necessary to support criminal liability. See Alford v. State, 866 S.W.2d 619, 622 (Tex.Crim.App.1993); see also Tex. Penal Code Ann. §§ 6.01; 6.02 (Vernon 1994). “[T]he issue of the voluntariness of one’s conduct, or bodily movements, is separate from the issue of one’s mental state.” Adanandus v. State, 866 S.W.2d 210, 230 (Tex.Crim.App.1993). Only if the evidence rais