Full opinion text
OPINION HERVEY, J., delivered the opinion of the Court in which KELLER, P.J., MEYERS, JOHNSON, KEASLER, HOLCOMB and COCHRAN, JJ., joined. Appellant was convicted of capital murder for murdering Stephanie Sanchez (“Sanchez”) and their thirteen-week-old unborn child on December 12, 2005. See §§ 19.03(a)(7)(A), Tex. Pen.Code (making it a capital offense to intentionally or knowingly murder more than one person during the same criminal transaction); 1.07(26), Tex. Pen.Code (defining an individual to include an unborn child). Pursuant to the jury’s answers to the special issues, the trial court sentenced appellant to death. Appellant raises forty-four points of error on direct appeal. We will sustain point of error two and reverse and remand this case for a new punishment hearing. We overrule all guilt-phase points of error and all other punishment-phase points of error that we find necessary to address. Appellant claims in point of error one that the evidence is legally insufficient to support the jury’s affirmative answer to the future-dangerousness special issue. Viewed in the light most favorable to the jury’s finding on this issue, the evidence shows that appellant was a youth pastor at a church in San Antonio. Sanchez was in appellant’s youth group, and she lived with her mother and father and her three younger siblings. Appellant and Sanchez began having sex when Sanchez was sixteen years old and appellant was twenty years old. Appellant impregnated Sanchez three times. The first time, Sanchez got an abortion. The second time, she miscarried. The third time, Sanchez decided to have the baby. Appellant told Sanchez that he wanted to share his life with her and their baby. Appellant did not tell Sanchez that he was having sex with another underage girl (Vargas) in his youth group. Soon after this, the then 22-year-old appellant went to Sanchez’s home at a time when he knew that she would be alone. Sanchez was seventeen years old and thirteen weeks pregnant. Appellant choked Sanchez and stabbed her eight times in the back and five times in the back of the head and neck. Appellant left Sanchez’s body on the kitchen floor knowing that her father and siblings would be home soon and find her. The medical examiner testified that Sanchez’s cause of death was “multiple stab wounds and manual strangulation.” Several of the stab wounds in Sanchez’s back fractured some ribs and penetrated a lung. The unborn child received no stab wounds during the attack. The medical examiner testified that a separate autopsy was performed on the unborn child and that there was nothing “wrong with that child that would cause death except the fact that the mother had — was dead.” Vargas testified that appellant told her about two weeks before the murders that he wished that he could kill Sanchez. Appellant told the police that he killed Sanchez when she attacked him with a knife and that he stabbed her because “she wasn’t dying” when he was choking her. Appellant also told the police that Sanchez was ruining his life. The evidence also shows that appellant committed indecency with a child with another girl (Reyes) in his youth group when Reyes was fifteen years old. Appellant threatened to “ruin” a former member (Natera) of the youth group after she threatened to reveal appellant’s relationship with Vargas. The State presented evidence that, if sentenced to life in prison without parole, appellant would have opportunities to commit violent crimes in prison and he would have contact with a number of people in prison including female guards and female employees. The State also presented evidence that male prisoners having sex with female guards is “not an isolated phenomenon” and that this “compromises the system when that happens, it compromises security.” The State presented other evidence that there have been hostage situations in prison “involving rape, very brutal assaults and murder against female guards” and “female employees.” Evidence was also presented that there is less of an incentive for a sentenced-to-life-without-parole inmate to behave in prison. Appellant presented the testimony of two witnesses (Casas and Labatt), who provided evidence of appellant’s good character. Appellant presented evidence that he was not a disciplinary problem during his pretrial incarceration. Appellant also presented evidence from which a jury could conclude that not very many violent crimes are committed by prison inmates and that a senteneed-to-life-without-parole appellant would not be dangerous in prison. Point of error one asserts that “[r]e-morseful, peaceful, non-violent, and a model prisoner subject to lifetime incarceration if not executed, Adrian Estrada poses absolutely no threat of future danger and the State’s showing of future dangerousness was legally insufficient.” The future-dangerousness special issue asks a jury to decide “whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society.” See Article 87.071, § 2(b)(1), Tex.Code Crim. PROC. Appellant claims that the evidence is legally insufficient to support the jury’s affirmative answer to the future-dangerousness special issue under this Court’s decision in Berry v. State. We understand appellant to argue that Berry should be read to require the future-dangerousness special issue to first ask a jury whether a life-sentenced capital defendant would be dangerous to prison society while incarcerated in prison and then whether the defendant would be dangerous to free society if the defendant is ever released on parole. Appellant further argues that the evidence in this case shows that he is dangerous only to teenage girls and that, “[i]f allowed to live, [he] will spend the rest of his life in prison” where he would not “have access to teenage women, much less that he would be placed in an authority position over them.” We do not read Berry as adopting appellant’s interpretation of the future-dangerousness special issue. This Court’s case law has construed the future-dangerousness special issue to ask whether a defendant would constitute a continuing threat “whether in or out of prison” without regard to how long the defendant would actually spend in prison if sentenced to life. See, e.g., Druery v. State, 225 S.W.3d 491, 506-07 (Tex.Crim.App.2007) (“State has the burden of proving beyond a reasonable doubt that there is a probability that [the defendant] would commit criminal acts of violence in the future, so as to constitute a continuing threat, whether in or out of prison”); Smith v. State, 898 S.W.2d 838, 846 (Tex.Crim.App.1995) (plurality op.) (how long a life-sentenced capital defendant will spend in prison “is not proper even in the context of the [future-dangerousness] special issue because when a jury is considering whether a defendant represents a continuing threat to society, the term ‘society’ includes both the prison and non-prison populations”) (emphasis in original); Muniz v. State, 851 S.W.2d 238, 250 (Tex.Crim.App.1993) (State required to prove that the defendant “would, more likely than not, commit violent criminal acts in the future so as to constitute a continuing threat to society whether in or out of prison”). This “commonsense” or “core” interpretation of the future-dangerousness special issue is also consistent with the Legislature’s use of the word “would” instead of “will” in this special issue. It is also consistent with this Court’s prior cases deciding that the phrase “continuing threat to society” in the future-dangerousness special issue need not be defined in the jury charge because jurors are “supposed to know” its “common meaning.” See King v. State, 553 S.W.2d 105, 107 (Tex.Crim.App.1977). We also note that this Court has characterized appellant’s interpretation of the future-dangerousness special issue as “a complex, backward analysis.” See Matchett v. State, 941 S.W.2d 922, 939 (Tex.Crim.App.1996) (permissible for jury to consider the threat that defendant posed to “society” without “distinguishing between ‘free’ or ‘prison’ society and without developing a ‘parole’ scenario by which [defendant] might become a threat to ‘free society ”). And in Chamberlain v. State, 998 S.W.2d 230, 235 n. 2 (Tex.Crim.App.1999), this Court decided that the trial court did not err to refuse the defendant’s requested jury charge that stated: When you decide whether the Defendant will continually commit violent crimes, you must consider the fact that if given a life sentence he will be sentenced to life in prison and will therefore not live among society in the free world. Thus, if you believe that the Defendant will not continually commit violent crimes in prison, you must answer [the future-dangerousness special issue] “no”, even if you believe there is a likelihood he would do so if he was a free man. We further note that, before 1999, when the Legislature enacted legislation that permitted a trial court to submit a minimum-parole-eligibility jury instruction at the defendant’s request, this Court would reject a capital defendant’s claim that he was entitled to a minimum-parole-eligibility jury instruction because the term “society” in the future-dangerousness special issue included both free and prison society. See Smith, 898 S.W.2d at 846. This is further support for the view that this Court believed that the future-dangerousness special issue asks a jury to decide whether a defendant would be dangerous “whether in or out of prison” without regard to how long the defendant would actually spend in prison if sentenced to life. In addition, we find that this case is distinguishable from Berry. In Berry, this Court decided that the evidence was legally insufficient to support an affirmative answer to the future-dangerousness special issue because the evidence showed that the defendant, who killed one newborn infant and attempted to kill another infant five years later, was dangerous to only some, but not all, of her newborn children, which she would not likely have during her child-bearing years in prison. See Berry, 283 S.W.3d at 863-64. In Berry, this Court essentially decided that a jury could not rationally find that the defendant was dangerous to anyone other than her own children which she would not have during her child-bearing years in prison. See id. The evidence in this case supports a finding that appellant is dangerous to a broader range of potential victims than only his unborn children. The evidence also shows that, unlike Berry, who was parole eligible, a life-sentenced appellant would be parole ineligible, and evidence was presented from which a jury could rationally find that a parole-ineligible inmate could be more dangerous in prison than a parole-eligible inmate. We also understand appellant to argue that, when the Legislature amended Article 37.071 in 2005 to provide that a life-sentenced capital defendant would no longer be eligible for parole (see footnote 3), it also intended that the future-dangerousness special issue should be construed to ask a jury to determine whether a defendant would be dangerous only in prison unless the State could prove beyond a reasonable doubt that there is a probability that the defendant would escape or otherwise be released from prison. Appellant argues: In those cases [holding that the future-dangerousness special issue focuses on a defendant’s future dangerousness “whether in or out of prison”], however, life without parole was not the alternative sentencing option, as now required Art. [sic] 37.071, § 2(g). Now, for the jury to consider a defendant’s danger in the free world, it would have to find proof beyond a reasonable doubt that there was a probability the defendant would escape or be released from prison outside the present law. Art. 37.071, § 2(g). We have found nothing to indicate that the Legislature has intended that the future-dangerousness special issue should, contrary to this Court’s prior holdings, be construed to ask a jury to determine whether a life-sentenced-without-parole capital defendant would be dangerous only to prison society unless the State could prove beyond a reasonable doubt that the defendant would get out of prison through means of escape or otherwise. We reaffirm this Court’s prior holdings that the future-dangerousness special issue asks a jury to determine whether there is a probability that the defendant would constitute a continuing threat to society “whether in or out of prison.” See Muniz, 851 S.W.2d at 250. Therefore, in reviewing the legal sufficiency of the evidence to support the jury’s affirmative answer to the future-dangerousness special issue, we view the evidence in the light most favorable to the jury’s answer to this special issue and determine whether any rational trier of fact could have found beyond a reasonable doubt that there is a probability that appellant would constitute a continuing threat “whether in or out of prison.” See Druery, 225 S.W.3d at 506-07. Appellant cites to several of this Court’s older cases, which decided that the evidence was insufficient to support an affirmative answer to the future-dangerousness special issue primarily because the facts of the offense were insufficient to support such an answer and because there was no other evidence, such as psychiatric or nonpsychia-tric opinion testimony, that would support a finding of future dangerousness. Appellant claims that he “easily poses an equally low (if not lower) threat of future danger than the defendants in all of the[se] cases.” In reviewing a jury’s affirmative answer to the future-dangerousness special issue, this Court has stated that each case must be resolved on its own facts. See Dinkins v. State, 894 S.W.2d 330, 357-61 (Tex.Crim.App.1995) (discussing and distinguishing some of this Court’s older cases, including some cited by appellant in this case, in deciding that the evidence was sufficient to support jury’s affirmative answer to future-dangerousness special issue). In this case, we decide that the evidence of appellant’s unremorseful, premeditated, brutal murders of Sanchez and their unborn child by stabbing Sanchez thirteen times, of his pattern of using his position of trust as a youth pastor to take sexual advantage of underage girls in his youth group, of his threat to “ruin” another former member of the youth group when she threatened to expose appellant, and of the opportunities for a life-sentenced-without-parole appellant to commit violence in prison are sufficient to support the jury’s affirmative answer to the future-dangerousness special issue. See Trevino v. State, 991 S.W.2d 849, 853-54 (Tex.Crim.App.1999) (future dangerousness can be inferred from evidence showing a lack of remorse); Ex parte Tennard, 960 S.W.2d 57, 59 (Tex.Crim.App.1997) (referencing State’s argument, “Look at the facts of the crime itself. You know pulling a trigger on a pistol is a fairly easy way to kill someone. Not easy, but it’s a detached way. It takes a special dedication to violence to plunge a knife into a human body sixteen times.”); Dinkins, 894 S.W.2d at 359-61 (evidence of premeditated and brutal murders of two women, including multiple gunshot wounds at close range of one of the victims, was sufficient to support affirmative answer to future-dangerousness special issue and the “character evidence uniformly favorable to” the defendant was “alone insufficient to mitigate the premeditation and brutality of the offense”); Hawkins v. State, 660 S.W.2d 65, 82 (Tex.Crim.App.1983) (evidence sufficient to support affirmative answer to future-dangerousness special issue where evidence showed that the defendant raped a woman who was six months pregnant and who bled to death as result of stab wounds that the defendant inflicted). On this record, we cannot conclude that it would be irrational for a jury to find beyond a reasonable doubt that there is a probability that appellant would constitute a continuing threat “whether in or out of prison.” See Druery, 225 S.W.3d at 506-07; Muniz, 851 S.W.2d at 250. Point of error one is overruled. Appellant claims in point of error five that a “[fjactual sufficiency review of future dangerousness is constitutionally required.” We have held that a factual sufficiency review of the jury’s answer to the future-dangerousness special issue is not constitutionally required. See McGinn v. State, 961 S.W.2d 161, 169 (Tex.Crim. App.1998). Point of error five is overruled. Appellant claims in point of error six that the “Texas future danger inquiry results in the death penalty’s arbitrary and disproportionate imposition, violating the Eighth Amendment.” Appellant argues that the “capital statute employs an unreliable inquiry into future dangerousness as a criterion to narrow the class of murders eligible for the death penalty, producing arbitrary and capricious as well as disproportionate results.” The Supreme Court decided in Jurek v. Texas that Section 19.03 sufficiently narrows the categories of murders for which a defendant is eligible for the death penalty and that the future-dangerousness special issue has “a common-sense core meaning and that criminal juries should be capable of understanding” it. See Jurek v. Texas, 428 U.S. 262, 270-71, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976) (joint opinion of Stewart, Powell, and Stevens, JJ.) and at 278-79, 96 S.Ct. 2950 (White, J., joined by Burger, C.J., and Rehnquist, J.); King, 553 S.W.2d at 107 (jury instruction defining “continuing threat to society” not required because jurors are “supposed to know” its “common meaning”). The Supreme Court has also recently stated that the “imprecision and the tension between evaluating the individual circumstances and consistency of treatment” resulting from what the jury must find in considering the future-dangerousness issue is constitutionally tolerable “where the victim dies.” See Kennedy v. Louisiana, — U.S. -, 128 S.Ct. 2641, 2661, 171 L.Ed.2d 525 (2008). Point of error six is overruled. In point of error seven, appellant claims that the “Texas future dangerousness scheme violates Texas’s Constitutional Proscription against cruel or unusual punishment.” We have rejected this claim. See Anderson v. State, 932 S.W.2d 502, 509-10 (Tex.Crim.App.1996). Point of error seven is overruled. In point of error two, appellant claims that “[b]y presenting false and misleading testimony on a crucial issue at the penalty phase of his trial, the State violated [appellant’s] constitutional rights under the Fifth, Sixth, Eighth and Fourteenth Amendments.” The State responds that “in the interest of justice, [it] believes Appellant is entitled to a new trial on punishment due to the error raised in Appellant’s second point of error.” While the State’s confession of error in a criminal case is important and carries great weight, we are not bound by it. See Saldano v. State, 70 S.W.3d 873, 884 (Tex.Crim.App.2002). This Court must still independently examine the error confessed because “our judgments are precedents, and the proper administration of the criminal law cannot be left merely to the stipulation of parties.” See id. The punishment-phase record reflects that appellant presented the testimony of Larry Fitzgerald to discuss the classification system within the Texas Department of Criminal Justice (TDCJ) for a sentenced-to-life-without-parole inmate convicted of capital murder. Fitzgerald testified about the “G” classification system and how it places restrictions on an inmate’s housing, job placement, movement, commissary, and recreation time. Fitzgerald also testified concerning how the G classification system ranks inmates from the least restrictive status of G-l to the most restrictive status of G-5. Fitzgerald testified that the least restrictive G status that a sentenced-to-life-without-parole capital murderer could obtain is a G-3 classification. The State presented A.P. Merillat as a rebuttal witness. Merillat testified, without objection, that, after 10 years of G-3 status, a sentenced-to-life-without-parole capital murderer could achieve a lower (and less restrictive) G classification status than a G-3 status. During its punishment-phase deliberations, the jury sent out two notes at separate times. The first note asked what would happen if the jury could not “come to a decision” on the future-dangerousness special issue. The second note asked, “Based on the testimony of Fitzgerald and Merillat is there a possibility that the defendant would be eligible for a less restrictive status after 10 years (or some other period of time).” The trial court responded to both of these notes by responding, “You have the law and the evidence. Please continue your deliberations.” On appeal, both appellant and the State represent to this Court that Merillat’s testimony that a sentenced-to-life-without-parole capital murderer could, after ten years, obtain a lower G classification status than a G-3 status was incorrect (both parties seem to agree that Merillat’s incorrect testimony was not intentional). Appellant claims that the admission of this incorrect testimony violated several of his constitutional rights. And the State asserts that the “jury’s questions suggest that Meril-lat’s mistaken testimony may have contributed to the jury’s decision on punishment.” The State “recommends that, in the interest of justice, Appellant should receive a new trial on punishment.” Both the State and appellant ask this Court to take judicial notice of a July 2005 TDCJ regulation which, both parties agree, unambiguously shows, “Effective 9/1/05, offenders convicted of Capital Murder and sentenced to ‘life without parole’ will not be classified to a custody less restrictive than G-3 throughout their incarceration” (it appears that before September 1, 2005, a sentenced-to-life-with-the-possibility-of-parole capital murderer could have obtained a lower and less restrictive G-3 status after ten years). This Court will take judicial notice of this TDCJ regulation. See Tex.R. Evid. 201(b) (judicially noticed fact must be one not subject to reasonable dispute in that it is capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned); 201(c) (a court may take judicial notice, whether requested or not); 201(d) (a court shall take judicial notice “if requested by a party and supplied with the necessary information”). We have judicially noticed the TDCJ regulation. This information, now properly before this Court, demonstrates there is a fair probability that appellant’s death sentence was based upon Merillat’s incorrect testimony as evidenced by the jury’s notes. See Simmons, 512 U.S. at 160, 165-66, 114 S.Ct. 2187 (defendant “was prevented from rebutting information that the [jury] considered, and upon which it may have relied, in imposing the sentence of death” and jury “was denied a straight answer about [defendant’s] parole eligibility even when it was requested” in a jury note). We believe that the Supreme Court would find this to be constitutionally intolerable. See id.; Johnson v. Mississippi, 486 U.S. 578, 590, 108 S.Ct. 1981, 100 L.Ed.2d 575 (1988) (death sentence based on “materially inaccurate” evidence violates Eighth Amendment); Townsend v. Burke, 334 U.S. 736, 740-11, 68 S.Ct. 1252, 92 L.Ed. 1690 (1948) (it violates due process to base conviction on “materially untrue” information “whether caused by carelessness or design”); Ex parte Chabot, 300 S.W.3d 768, 771 (Tex.Crim.App.2009) (State’s unknowing use of perjured testimony violates due process); Ex parte Carmona, 185 S.W.3d 492, 497 (Tex.Crim.App.2006) (plurality op.) (revocation of community supervision based solely on perjured testimony violates due process). After having independently examined the merits of the State’s confessed error, we are satisfied that appellant presents a meritorious substantive claim in point of error two. The issue thus becomes whether this Court should grant relief on the merits of this claim because it was not, but apparently could have been, raised in the trial court. In Saldano, a State’s expert testified “about statistical, ‘identifying markers’ which help experts determine whether there is a probability that a defendant will present a future threat” and that one “of the factors that ... are associated with a defendant’s future dangerousness was his race or ethnicity.” See Saldano, 70 S.W.3d at 884-85. We declined to address the merits of the State’s confession that this evidence was erroneously admitted because the defendant “did not make an objection to the testimony as our law has always required.” See Saldano, 70 S.W.Sd at 891. We understand the State to claim that this Court should apply Tex.R.App. P. 2 to suspend the preservation-of-error-rules contained in Tex.R.App. P. 38.1 and Tex.R. Evid. 103(a). The State asserts that “rather than argue that Appellant forfeited his right to object to the admission of this evidence on appeal, in the interest of justice and judicial economy, the State acknowledges that the error occurred, that the error was not intentional, and in light of Appellant’s sentence of death, he should receive a new trial on punishment.” We find it unnecessary to decide whether Rule 2 can be used to suspend preservation of error rules because we believe that this case is distinguishable from Saldano. Appellant had no duty to object because he could not reasonably be expected to have known that the testimony was false at the time that it was made. This case also not only involves the erroneous admission of evidence, as in Saldano, but, unlike Salda-no, it also involves the State’s duty to correct “false” testimony whenever it comes to the State’s attention. See Napue v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959) (conviction obtained through perjury, “known to be such by representatives of the State,” violates due process, and the same result obtains when the State, although not soliciting perjury, allows it to go uncorrected when it appears); Carmona, 185 S.W.3d at 497-98 (Hervey, J., dissenting). In this case, the State has fulfilled this duty to correct the “false” testimony of Merillat that it presented at appellant’s trial and which may have contributed to appellant’s death sentence. Point of error two is sustained. Appellant claims in point of error eight that the “police failed to scrupulously hon- or [his] invocation of the right to remain silent during custodial interrogation.” In point of error nine, appellant claims that the “detectives’ misleading statements about [his] right to counsel rendered his waiver unknowing, involuntary and unintelligent.” And in point of error ten, appellant claims that the “police violated [his] Fifth Amendment and Due Process rights by coercing a confession.” We understand these points to challenge the admission into evidence of appellant’s first and second videotaped DVD statements to the police. The record reflects that the trial court held a pretrial hearing on appellant’s motion to suppress. At this hearing, the State presented the first DVD statement and the testimony of Detective Greiner. Appellant did not testify at the hearing. Greiner testified at the suppression hearing that she learned of the murders at about 4:00 p.m. She and another detective went to appellant’s apartment at about 8:00 p.m. to question him. While they were in the apartment appellant received a call from his supervisor at the church (“Pastor Roy”), who advised appellant to get a lawyer. Appellant’s mother and sister also suggested that appellant get a lawyer. The detectives left the apartment. Appellant followed them out of the apartment alone. Appellant expressed some uncertainty about whether he should follow Pastor Roy’s advice about getting a lawyer. Greiner informed appellant that getting a lawyer was “his choice,” and she also explained that he was “not under arrest” and that he “did not have to talk” to them. Appellant responded that he had nothing to hide and that he wanted to give a statement to the police that night. Appellant decided to ride with the detectives to the police station. When they got into the car, appellant received a phone call on his cell phone from Pastor Roy, who asked appellant to give the phone to Greiner. Greiner took the phone, stepped out of the car and closed the door. Pastor Roy attempted to invoke appellant’s rights during this phone call. Greiner told Pastor Roy that, because he was not a lawyer, he could not invoke appellant’s rights, and she ended the call. When they arrived at the police station, appellant was brought to an interview room. Soon after this, appellant made some references to a lawyer. [GREINER]: And [Pastor Roy] told you what? [APPELLANT]: He just told me that he had came [sic] downtown and I said, okay and then he said, he said tell them that you need an attorney. * * * [GREINER]: Well, exactly, but if you want an attorney, that’s your right. You understand that, just like I told you in front of the two officers, if you want an attorney, that’s it. I don’t talk to you anymore and it— [APPELLANT]: What’s the (inaudible)? [GREINER]: — it’s your choice. [APPELLANT]: Why do people like ask — to defend me? [GREINER]: Exactly. [APPELLANT]: Huh-huh. [GREINER]: But, you know, you told me out there that you had nothing to hide; that you wanted to talk to us— [APPELLANT]: Yes. [GREINER]: — so you agreed to come down and talk to us and that’s all we’re going to do tonight. Greiner testified that, although appellant was not in custody, she advised him of his Miranda /Article 38.22 rights because of the prior admonitions by Pastor Roy and appellant’s family that appellant should get a lawyer. Greiner testified that appellant indicated to her that he understood and wanted to waive these rights. Greiner testified on cross-examination that appellant did not waive these rights “in those words.” Q. [THE DEFENSE]: Mr. Simpson asked you if you asked [appellant] if he wanted to waive his rights. Did you actually specifically ask him that? A. [GREINER]: I asked him if he understood his rights. Q. But you didn’t — you never asked him if he Was willing to waive his rights? A. Not in those words, no, sir — no, ma’am. Q. Did you ever take a written statement that he would have signed that contained a written warning? A. We did not do that with the DVD. They sign the [rights] card. Appellant denied any involvement in the murders during approximately three hours of questioning by Greiner. At about this time, Greiner left the interview room and Vargas (appellant’s sixteen-year-old girlfriend), who had come to the police station, was allowed to speak with appellant. Appellant and Vargas had an emotional encounter when Vargas confronted appellant with information provided to her by the police that appellant told them that he got Sanchez pregnant and murdered her. Appellant told Vargas that he did not tell the police that and that the police lied to her. Vargas accused appellant of lying to her and killing Sanchez. Appellant tearfully continued to deny any involvement in the murders. Vargas left the interview room. A Detective Walker came into the interview room and began to question appellant. Appellant continued to deny any involvement in the murders but admitted that he had had a sexual relationship with Sanchez. Walker accused appellant of lying about his involvement in Sanchez’s murder and also informed appellant that he was the “central figure” in this murder investigation. Walker told appellant that he was free to leave, and appellant acknowledged that he was there voluntarily and did not have to listen to Walker’s accusations. Appellant told Walker that he did not want to continue talking and that he wanted the police to give him a ride home. [WALKER]: You’re done dude. You’re done. You got the girl pregnant, she was causing problems for you. I don’t know what happened when you went over there today, but something happened. Something went wrong. [APPELLANT]: No, and you can’t even sit here and tell me that I did that. You can’t pressure me like that. [WALKER]: I already did. [APPELLANT]: No, you can’t. • [WALKER]: I just did. [APPELLANT]: No, cause then I don’t have to be here anymore. [WALKER]: You’ve never had to be here all along. [APPELLANT]: I know, I volunteered to come. [WALKER]: Absolutely. [APPELLANT]: Okay. Well, if you’re going to sit here and accuse me of doing it, then I don’t need to be here anymore. [WALKER]: No, you don’t. Detective Greiner told you when you got here that you were free to go at any time— (Interrupting each other) [APPELLANT]:— [WALKER]: You came here voluntarily, right? [APPELLANT]: Yeah, I did. [WALKER]: Okay. So, why don’t you address some of these things that I’m bringing up. Why don’t you tell me how it happens, that we have witnesses who are putting you at the scene— [APPELLANT]: I can’t tell you that. [WALKER]: Why can’t you tell us why you can’t fill in the time gap— [APPELLANT]: (Inaudible) [WALKER]: — well, of course, I know why you can’t fill in the time gap. You can’t fill in the time gap because you were at [Sanchez’s] house. [APPELLANT]: No. [WALKER]: Oh, absolutely. [APPELLANT]: No, I wasn’t. [WALKER]: Yes, you were. [APPELLANT]: No, I wasn’t. [WALKER]: Yeah you were, and that’s exactly (inaudible), the probable cause statement and the — and the arrest warrant will say. * * * [APPELLANT]: You can sit here and tell me everything you want to. [WALKER]: Okay. [APPELLANT]: That’s fine. I’ve heard enough from you. [WALKER]: Okay. [APPELLANT]: Okay and I’m ready to leave. [WALKER]: Sir, there’s nothing stopping you from leaving. [APPELLANT]: Okay. [WALKER]: — you can leave any time you want. [APPELLANT]: Well, then I’m going to leave right now. [WALKER]: Listen — are you glued to the chair? [APPELLANT]: No, I’m just saying. [WALKER]: Do you want to talk to Detective Greiner before you leave or something; is that what you’re staying around for? [APPELLANT]: No. [WALKER]: Well— [APPELLANT]: Well, I don’t know, they said they were going to take me home and that’s why. [WALKER]: Oh, no problem. We’ll get you a ride home. Greiner came into the interview room at this time to tell appellant what Vargas had told her. Appellant told Greiner that she could tell him what Vargas said and that he would then leave. After Walker left the room, Greiner told appellant that Vargas had told her that Vargas and appellant had a sexual relationship. [GREINER]: — finished talking to him— are you done? [WALKER]: Yeah. He’s wanting to go home. [GREINER]: Oh, okay. I was coming in to tell him what [Vargas] had to tell me. [WALKER]: Okay. [GREINER]: I’m a little shocked. (Talking to appellant) Your choice, do you want me to continue to talk to you? [APPELLANT]: What is it about? [GREINER]: Well, what [Vargas] was telling me? [APPELLANT]: [Vargas]? [GREINER]: Huh-huh. [APPELLANT]: That’s fine. [GREINER]: It’s your choice, you don’t have to talk to me. [APPELLANT]: That’s fine, but after that, I’ll leave. [GREINER]: That’s fine. You can leave right now, in fact, maybe I shouldn’t tell him (inaudible). [WALKER]: Just be careful cause he’s already killed one woman today. (Detective Walker leaves the room.) [GREINER]: It’s your choice, do you want to talk to me? [APPELLANT]: I just (inaudible) go home. [GREINER]: You don’t want to hear what she has to say? [APPELLANT]: You mean [Vargas]? [GREINER]: Huh-huh. [APPELLANT]: You’re going to tell me? [GREINER]: I’ll tell you. [APPELLANT]: Go ahead. [GREINER]: I’ve been honest with you. [APPELLANT]: That’s fine. [GREINER]: Okay. She told me some things. I think she was quite upset. She shared with me that you guys have a sexual relationship. After talking to appellant for a few minutes about his relationship with Vargas, Greiner asked appellant if he wanted to talk about Sanchez. Appellant replied that he would talk to her for another five minutes and then go. [GREINER]: I mean, [Sanchez] was an adult. This is an awful lot, okay? I’m concerned and my concern is if you want to continue talking to me, that’s great, okay, I’ll share my concern with you. With everything they told me — it’s your choice, do you want to leave or do you want to keep talking, it’s your choice? [APPELLANT]: Five more minutes, then I’ll go. Less than five minutes later, a tearful appellant confessed that he went to the Sanchez home only to tell Sanchez to leave him alone but that he killed Sanchez after she became angry at him and attacked him with a knife. Appellant described choking Sanchez to get her to drop the knife and then taking the knife and stabbing her when he realized that choking her was not killing her. Appellant stated: [APPELLANT]: And I was just squeezing her neck like that (indicating). [GREINER]: Yeah. [APPELLANT]: And she wasn’t — she wasn’t dying. [GREINER]: Okay. [APPELLANT]: And so I got the knife and I don’t know how many times I did it, but I did it. Appellant also told Greiner where he discarded the knife and his shoes and drew her a map. When appellant asked what would happen next, Greiner told him that they would take him home but that a warrant would be issued for his arrest. The entire interrogation lasted approximately five hours. The police took appellant home after taking him to his sister’s house to retrieve the shirt that appellant wore during the murders. Appellant was arrested about three hours later pursuant to an arrest warrant. Appellant gave a brief second videotaped DVD statement after being informed of his Miranda /Article 38.22 rights, which he indicated that he understood. The trial court denied appellant’s motion to suppress based on the following combined findings of fact and conclusions of law. 1. The first DVD statement made by [appellant] on December 12, 2005, was a voluntary statement. [Appellant] was not under arrest, nor was he in custody at the time of the first interview. It was not the product of undue influence, threats, coercion or promises. The first DVD statement is therefore admissible. 2. While [appellant] was not in custody, the first DVD statement was still taken in compliance with the decision of the United States Supreme Court in Miranda v. Arizona. It was also taken in compliance with Article 38.22 of the Texas Code of Criminal Procedure. It was knowingly, intelligently and voluntarily made after [appellant] was given all the legally required warnings by law enforcement personnel who took the statement. While [appellant] did not utilize the word “waiver” in reference to his Miranda rights it is clear from the totality of the circumstances that he understood his rights, chose to waive them and continue the interview with law enforcement personnel. The first DVD statement is therefore admissible even if [appellant] could be considered to be in custody at any time during the DVD statement. 3. [Appellant] never unequivocally invoked his right to terminate the interview being conducted on the first DVD. He indicated that he no longer wanted to talk to Detective Curtis Walker, but did want to continue talking to Detective Greiner. Walker exited the interview room and Greiner resumed the interview. The first DVD statement including the portion following Walker’s interview is therefore admissible. The State argues that we should overrule points eight and nine because the evidence supports the trial court’s finding that appellant was not in “custody” when the police were questioning him. See Miranda, 384 U.S. at 444, 86 S.Ct. 1602 (applies only to use of statements obtained from suspect during police-initiated “custodial interrogation”); Article 38.22, § 2 (setting out requirements for admissibility of a defendant’s written statement as a result of “custodial interrogation”). Appellant argues that the evidence shows, as a matter of law, that “no reasonable person would feel free to leave after being: 1) transported by the police from his home, where his family was advising him to get an attorney, 2) abruptly cut off from telephone contact with a pastor seeking to protect his rights to counsel, 3) read Miranda warnings and accused aggressively of murder, 4) told he would stand trial and go to prison, 5) denied his repeated requests to leave, 6) told he did not have to speak with the police, but then subjected to continuing interrogation when he said he did not want to speak with them, and 7) closely guarded at the police station and accompanied by officers to the bathroom.” “In determining whether an individual was in custody, a court must examine all of the circumstances surrounding the interrogation, but the ultimate inquiry is simply whether there [was] a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest.” See Stansbury v. California, 511 U.S. 318, 322, 114 S.Ct. 1526, 128 L.Ed.2d 293 (1994) (internal quotes omitted); Dowthitt v. State, 931 S.W.2d 244, 254 (Tex.Crim.App.1996) (“A person is in custody only if, under the circumstances, a[n objectively] reasonable person would believe that his freedom of movement was restrained to the degree associated with a formal arrest.”) (internal quotes omitted). An “officer’s views concerning the nature of an interrogation, or beliefs concerning the potential culpability of the individual being questioned, may be one among many factors that bear upon the assessment whether that individual was in custody, but only if the officer’s views or beliefs were somehow manifested to the individual under interrogation and would have affected how a reasonable person in that position would perceive his or her freedom to leave.” See Stansbury, 511 U.S. at 325, 114 S.Ct. 1526. We decide that the record supports a finding that appellant was not in custody. We believe that this case is similar to Oregon v. Mathiason in which the Supreme Court summarily decided on certio-rari that the defendant was not in custody when he gave an incriminating statement to the police during questioning at the police station where: 1) the defendant voluntarily came to the police station in response to a request by the police, 2) the police immediately informed the defendant that he was not under arrest, 3) the defendant gave the incriminating statement after a one-half hour interview during which the police falsely stated that his fingerprints were found at the scene, 4) after which the defendant was allowed to leave the police station. See Oregon v. Mathiason, 429 U.S. 492, 493-96, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977). As to the claim that the defendant was in custody because questioning took place in a “coercive environment,” the Supreme Court stated: Such a noncustodial situation is not converted to one in which Miranda applies simply because a reviewing court concludes that, even in the absence of any formal arrest or restraint on freedom of movement, the questioning took place in a “coercive environment.” Any interview of one suspected of a crime by a police officer will have coercive aspects to it, simply by virtue of the fact that the police officer is part of a law enforcement system which may ultimately cause the suspect to be charged with a crime. But police officers are not required to administer Miranda warnings to everyone whom they question. Nor is the requirement of warnings to be imposed simply because the questioning takes place in the station house, or because the questioned person is one whom the police suspect. Miranda warnings are required only where there has been such a restriction on a person’s freedom as to render him ‘in custody.’ It was that sort of coercive environment to which Miranda by its terms was made applicable, and to which it is limited. See Mathiason, 429 U.S. at 495, 97 S.Ct. 711. This case is also similar to California v. Beheler, which is another United States Supreme Court case that decided on certiorari that a defendant was not in custody when he voluntarily came to the police station on the day of the offense and gave a statement after brief questioning (less than 30 minutes) and was then allowed to return home. See California v. Beheler, 463 U.S. 1121, 1122-25, 103 S.Ct. 3517, 77 L.Ed.2d 1275 (1988). We believe that Mathiason and Beheler support a decision that appellant was not in custody, even though the interrogation in this case lasted longer (approximately 5 hours) than did the interrogations in Mathiason and Beheler (approximately 30 minutes). In addition to this, we note that the police told appellant several times that he was free to leave, that appellant also acknowledged that he came to the station voluntarily and did not “have to be [t]here anymore,” and that appellant stated several times that he wanted to leave and go home. Under these circumstances, we are unable to conclude that a reasonable person would believe that he was not free to leave. See Dowthitt, 931 S.W.2d at 254; State v. Carroll, 138 N.H. 687, 645 A.2d 82, 88 (1994) (defendant’s statement that he “wantfed] to go home” suggests “that the defendant himself believed that he could have left if he so chose”). This record supports a finding that appellant could have simply walked out of the police station at any time (and, in this case, asked the police for a ride home at any time). In fact, that is exactly what he did after he gave his statement. That the interrogation may have taken place in what appellant characterizes as a “coercive environment” does not require a contrary decision. See Mathiason, 429 U.S. at 495, 97 S.Ct. 711 (“Any interview of one suspected of a crime will have coercive aspects to it, simply by virtue of the fact that the police officer is part of a law enforcement system which may ultimately cause the suspect to be charged with a crime.”). The record supports the trial court’s finding that appellant was not in custody when he provided the first videotaped DVD statement to the police. This resolves appellant’s claims that the police failed to scrupulously honor his invocation of his right to silence and that any waiver of his right to counsel was “unknowing, involuntary and unintelligent.” Points of error eight and nine are overruled. Appellant also claims in point of error ten that the police coerced his confession primarily because the police continued to interrogate appellant after he invoked his Miranda rights to counsel and to remain silent after the police had informed him of these rights. In support of this claim, appellant relies on the following dicta from a Tenth Circuit decision in United States v. Bautista stating: Finally, we address the government’s assertion that it makes no difference that Agent Leggitt unnecessarily advised Bautista of his Miranda rights when Bautista was not in custody. The government’s position misses the point of Miranda and Edwards [u Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981) ]. If the authorities are free to tell a suspect that he has the right to appointed counsel, but could, while continuing to interrogate him, refuse to provide such counsel on the grounds that the suspect was not actually in custody, the suspect would be led to believe that no request for counsel would be honored. “The coercive effect of continued interrogation would thus be greatly increased because the suspect would believe that the police ‘promises’ to provide the suspect’s constitutional rights were untrustworthy, and that the police would continue to violate those rights as they wished, regardless of assurances to the contrary.” See United States v. Bautista, 145 F.3d 1140, 1150-51 (10th Cir.1998) (quoting Tubes v. Dugger, 911 F.2d 508, 516 n. 11 (11th Cir.1990)). Even if we were to assume that appellant unambiguously invoked his rights to counsel and to silence during the noncustodial interrogation setting, we do not agree that the police were required to honor these invocations. We adopt the following discussion from our unpublished decision in Davis v. State: Because the appellant was not in custody, law enforcement officials had no obligation under Miranda to scrupulously honor a request to terminate questioning. Although Miranda warnings were given (unnecessarily), that fact does not change the analysis. We have recognized that the prosecution cannot impeach a defendant with his post-Miranda silence, even if Miranda warnings were given prematurely. This recognition was based on the idea that it is fundamentally unfair to make the implicit promise that silence will carry no penalty and then to break that promise by using the defendant’s silence against him at trial. The scrupulous honoring of rights, however, presents a different situation. The need to scrupulously honor a defendant’s invocation of Miranda rights does not arise until created by the pressures of custodial interrogation. Without those pressures, the police are free to attempt to persuade a reluctant suspect to talk, and the immediate termination of the interrogation after the invocation of rights is simply not required. See Davis v. State, slip op. at 11, 2007 WL 1704071 (Tex.Crim.App. No. AP-74,393, delivered June 13, 2007) (Womack, J., joined by Price, Johnson, Holcomb, and Cochran, JJ.) (not designated for publication) (footnotes omitted). We also decide that the interrogation techniques employed in this case are not the type of brutal “third-degree” techniques that would render a defendant’s “statements to have been involuntary in traditional terms.” See Miranda, 384 U.S. at 455-57, 86 S.Ct. 1602; State v. Terrazas, 4 S.W.3d 720, 723-24 (Tex.Crim.App.1999) (voluntariness test is whether “the confession is the product of an essentially free and unconstrained choice by its maker” and whether the confession is true or false is irrelevant to a voluntariness determination because “it is the methods used to extract an involuntary confession that offends constitutional principles”) (internal quotes omitted) and at 726-27 (discussing examples of interrogation methods that offend constitutional principles); Carroll, 645 A.2d at 83-87 (deciding under New Hampshire Constitution, which “provides greater protection to a criminal defendant with respect to the voluntariness of confessions than does the Federal Constitution,” that defendant’s confession was voluntary where two officers testified that the approximately two-hour-long noncustodial interrogation “was one of the most emotional and intense interrogations they had ever witnessed” which included raised voices and a tearful defendant saying “I just want to go home”). We cannot conclude that appellant’s videotaped DVD statement was coerced and involuntary as a matter of federal constitutional law. Point of error ten is overruled. In point of error eleven, appellant claims that the “trial court committed reversible error by admitting Appellant’s [videotaped DVD statement] in violation of Article 38.22, § 6 and 38.21.” Appellant argues that, even if he were not in custody, this statement was involuntary, as a matter of state law, because the police told him that he had a right to remain silent but then continued questioning him after he invoked that right. Appellant also claims that it is relevant to this voluntariness determination that he was “22 years of age and with no experience in the criminal justice system.” This case does not present the type of fact scenario that raises a state-law claim of involuntariness. See Oursboum v. State, 259 S.W.3d 159, 172-73 (Tex.Crim.App.2008) (“Under Articles 38.21 and 38.22 and their predecessors, fact scenarios that can raise a state-law claim of involuntariness (even though they do not raise a federal constitutional claim) include the following: (1) the suspect was ill and on medication and that fact may have rendered his confession involuntary; (2) the suspect was mentally retarded and may not have ‘knowingly, intelligently and voluntarily waived Ms rights; (3) the suspect ‘lacked the mental capacity to understand his rights’; (4) the suspect was intoxicated, and he ‘did not know what he was signing and thought it was an accident report’; (5) the suspect was confronted by the brother-in-law of his murder victim and beaten; (6) the suspect was returned to the store he broke into ‘for questioning by several persons armed “with six-shooters.” ’ ”) (footnotes omitted). In this case, for example, the record supports findings that appellant understood his rights and understood that he was free to leave at any time during the police interrogation. Point of error eleven is overruled. In point of error twelve, appellant claims that the “trial court committed reversible error by admitting Appellant’s [videotaped DVD statement] in violation of Article 38.22, §§ 2-3.” These provisions, however, apply to the admission of written or oral statements “as a result of custodial interrogation.” See also Oursboum, 259 S.W.3d at 172. In this case, the record supports the trial court’s finding that appellant’s statements were not the result of custodial interrogation. Point of error twelve is overruled. In point of error thirteen, appellant claims that the trial court denied him “a fair trial by failing to instruct the jury on voluntariness and the attendant Miranda issue.” We understand appellant to claim that he should have received these jury instructions with respect to his first DVD videotaped statement. The record reflects that appellant requested only a “38.23” charge on whether he was in custody and on whether he invoked his right to terminate the interrogation. [THE DEFENSE]: Then the next one is 38.23 on the statement, on the volun-tariness of the statement. Just the— you know, the termination — I mean, you know, it’s out there, it’s a jury issue. You — all—she says that — I personally believe that he did enough to terminate that statement and Greiner said that he wanted to continue talking to her. But he was very clear in the DVD. He wanted to continue talking about whatever Vargas had just said, “and then I’ll go home,” he said on the DVD. I certainly think there is enough. The custodial issue, certainly the waiver issue I think is there for me to get a 38.23 charge. The record also reflects that the defense stated that it had no objections to the jury charge and that the defense may even have drafted the Article 38.23 charge that was submitted to the jury. This “general” charge stated: You are instructed that under our law that no evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case. Therefore, if you believe or have a reasonable doubt that the evidence was obtained in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the Urnted States of America, in such event, the jury shall disregard any such evidence so obtained. The record further reflects that the defense never argued to the jury that appellant’s DVD videotaped statement was illegally obtained and, therefore, should have been disregarded. The record also reflects that the defense relied on portions of appellant’s videotaped DVD statement to show “some of the feelings that [appellant] was having.” [THE DEFENSE]: And just some other things on the DVD to show some of the feelings that [appellant] was having. When Greiner left at the end of the first statement, not the second one where he came in in handcuffs, when — it’s very clear from the beginning of the DVD that Detective Greiner did not, you know, inform [appellant] that he was being orally or — or recorded video. There’s a sign up there in the police department, but that doesn’t mean he saw it. After she left the room, and I don’t think it was long before [one of appellant’s lawyers] turned off the video recorder because we didn’t want you to sit here and watch dead air, but he sat there and he cried and he sobbed and he sobbed. I mean, there were true feelings coming out from him. And he wasn’t doing it for show, because he didn’t know that anybody was watching him. We understand appellant to argue on appeal that the trial court should have also provided an Article 38.22, § 7 voluntariness instruction and another instruction to disregard his videotaped DVD statement if appellant did not validly waive his Miranda rights. Appellant argues: Article 38.22, § 7 states that trial judges “shall” instruct the jury that the prosecution must prove beyond a reasonable doubt that the defendant knowingly, voluntarily, and intelligently waived his Miranda rights, if the issue is raised by the evidence. Similarly, whether requested or not, a voluntariness instruction under Article 38.22 § 6 is also required “where a question is raised.” Here, where the evidence raised questions about the vol-untariness of [appellant’s] statement and about the legality of his Miranda waiver, and where the trial judge held hearings and made findings with respect to each of these issues, these sections of 38.22 constitute the “law applicable to this case.” Thus, the instructions under these sections were mandatory. Reversal is required because the trial court failed to instruct the jury on voluntariness and the Miranda issue, and prejudice ensued. (Citations to authority and to the record omitted, emphasis in original). The record reflects that appellant did not request these instructions at trial. Therefore, in order to obtain a reversal of his conviction for the trial court’s failure to sua sponte provide these instructions, appellant must show that they are “law applicable to the case” and that he was “egregiously harmed” by their absence. See Oursboum, 259 S.W.3d at 174-76; Almanza v. State, 686 S.W.2d 157,171 (Tex.Crim.App.1985) (op. on reh’g). Assuming that appellant offered “evidence before the jury suggesting that the confession was not in fact voluntary,” we decide that appellant was not entitled to an Article 38.22, § 6 voluntariness instruction because no “reasonable jury could find that the facts, disputed or undisputed, rendered him unable to make a voluntary statement.” See Oursboum, 259 S.W.3d at 176. The record contains no fact scenario that raises a “state-law claim of involuntariness” or that raises a federal constitutional (police-coercion) claim of involuntariness. See Oursboum, 259 S.W.3d at 172-73 (describing fact scenarios that raise these state-law and federal constitutional claims). We also decide that appellant was not entitled to an Article 38.22, § 7 (validity of Miranda waiver) instruction because the undisputed evidence shows that appellant was not in custody and was not entitled to be informed of these Miranda rights that the police nevertheless provided to him anyway and that the totality of the circumstances indicate that appellant knowingly waived. See Oursboum, 259 S.W.3d at 176; see also Berghuis v. Thompkins, — U.S. -, 130 S.Ct. 2250, 2261-62, - L.E.2d-(2010) (prosecution does not need to show that a waiver of Miranda rights was express); Joseph v. State, 309 S.W.3d 20, 24-26 (Tex.Crim.App.2010) (in absence of express and explicit waiver of Miranda rights, totality of circumstances may show voluntary waiver of these rights) and at 29 (Cochran, J., concurring) (“Under some circumstances, if a suspect has been fully warned of his rights and has indicated that he understands those rights, a course of conduct consistent with waiver ‘may’ support the conclusion that the suspect has waived his Miranda rights.”). In point of error fourteen, appellant claims that the “State’s unnecessary introduction of an inflammatory and repetitive 911 recording of Sanchez’s family members upon discovering her body denied appellant a fair trial” at the guilt stage and at the sentencing stage. At trial, appellant claimed, among other things, that the 9-1-1 recording was “extremely prejudicial.” Appella