Full opinion text
KELLER, P.J., delivered the opinion of the Court in which MEYERS, WOMACK, KEASLER, HERVEY, and COCHRAN, JJ., joined. In October 2007, a jury convicted appellant of capital murder. Based on the jury’s answers to the special issues, the trial judge sentenced appellant to death. Direct appeal to this Court is automatic. After reviewing appellant’s twenty-six points of error, we find them to be without merit. Consequently, we affirm the trial court’s judgment and sentence of death. I. BACKGROUND On August 22, 2006, appellant entered an apartment without permission through a window and waited for the occupants to return home. The apartment belonged to Regina Lara, who was the mother of appellant’s estranged girlfriend, Linda Martinez. Linda’s fifteen-year-old daughter, R.M., who lived with Regina, received a ride home from school that day from her aunt, Veronica Lara. When the pair returned to the apartment, R.M. first noticed that her grandmother’s cat was missing and then found appellant in her bedroom, but she was too frightened to call out or say anything to her aunt about appellant being in the apartment. Appellant told R.M. that her mother had been beaten by a group of men, and when Veronica left, appellant sexually assaulted R.M. Appellant then instructed R.M. to stay in her room until her grandmother returned home. When Regina returned home approximately an hour later, R.M. met her in the living room. R.M. did not see appellant anywhere in the apartment. Regina told R.M. that appellant had assaulted her mother and that she was hospitalized. A short time later, R.M. went to the kitchen for a glass of water and noticed that two knives were missing. Worried, she stepped into the hallway outside the apartment to receive better cell phone reception in order to call Veronica. R.M. told Veronica that she was concerned appellant could still be in the apartment and asked her to return to the apartment. Regina stepped into the hallway and told R.M. to come back inside the apartment. Still worried, R.M. asked her grandmother not to go back inside. Regina, however, went back inside the apartment. Several seconds later, R.M. heard Regina scream. R.M. ran to a nearby convenience store to safely call the police. Appellant attacked Regina and stabbed her several times. She suffered a fractured voice box as a result of strangulation and a fractured skull from a blow to her head. Regina died from multiple stab wounds to the heart. Appellant fled the scene in Regina’s van. He drove to a nearby shopping center, where he entered a Ross Department Store. Sarah Spanier, a friend of Linda Martinez, called 9-1-1 to report that appellant was in the department store, bloody, bandaged, and “not acting right.” While there, appellant purchased new clothes and changed into them. Officers later found appellant’s discarded clothing and Regina’s checkbook in the dressing room he used at the department store. Spanier followed appellant out of Ross and informed the 9-1-1 operator that appellant had walked into a nearby Target. Several officers, including Officers Robert Broomhall and Robert Caudill, went to the Target store. Upon entering the store, Broomhall quickly located appellant near the electronics department. Broomhall and Caudill were the first officers to approach appellant, and they directed him to turn around and raise his hands. When appellant did not follow the officers’ directions, Caudill forced appellant to the ground. Appellant struggled briefly but was quickly subdued and handcuffed. As officers walked appellant to a police car, appellant broke away and attempted to run. Officers quickly apprehended appellant and placed him in the back seat of a police car. Officer Caudill and Officer Corey Wrob-lewski transported appellant to Bracken-ridge Hospital, where he was treated for cuts on his arm and face. Homicide Detective Rogelio Sanchez read Article 38.22 warnings to appellant at the hospital. The officers subsequently transported appellant to the police station’s homicide division, where he was interviewed. The administration of warnings at the hospital and the interview at the station were elee-ironically recorded (audio only at the hospital, audio and video at the station). II. GUILT A. Batson Claim In point of error four, appellant contends that the trial court erred in denying a Batson challenge to the State’s peremptory strike of prospective juror Mays, an African-American. Appellant claims that the “defense rebutted the prosecutor’s race-neutral rationale, leaving only the impermissible rationale for Mays’ removal.” Batson provides a three-step process for a trial court to use in adjudicating a claim that a peremptory challenge was based on race: First, “a defendant must make a prima facie showing that a peremptory challenge has been exercised on the basis of race.” Second, “if that showing has been made, the prosecution must offer a race-neutral basis for striking the juror in question.” Finally, “in light of the parties’ submissions, the trial court must determine whether the defendant has shown purposeful discrimination.” A trial court’s ruling on the issue of discriminatory intent must be sustained unless it is clearly erroneous. The trial court’s role in evaluating Batson claims is pivotal. Often the best evidence of discriminatory intent is the demeanor of the prosecutor exercising the challenge. Additionally, race-neutral reasons for peremptory challenges often turn on aspects of a venire member’s demeanor, such as nervousness or inattention, causing the trial court’s observations to be even more important. The record reflects that prospective juror Mays arrived at the courtroom late for voir dire. Before Mays entered the courtroom, the trial court set out the basic facts surrounding her late arrival: For the record, Ms. Mays came into the courthouse this morning. She was carrying — evidently she has a little pocket knife for protection or a knife for protection. The deputies saw it and sent her out. They wouldn’t let her leave it. They sent her away, so she went home. A constable went out to find her. We called her work. We’ve been tracking her down, so she is now here. Before her individual voir dire, the trial court asked Mays, “I’ve already put on the record that you were here this morning, but you were turned away by the deputies downstairs. Is that right?” Mays responded, “Uh-huh.” The prosecutor then proceeded with individual voir dire. When the prosecutor was done, defense counsel had no questions. After Mays was asked to step outside the courtroom, the trial court asked the parties’ whether they had any challenges. Neither party challenged Mays for cause, but the State chose to exercise a peremptory strike. When defense counsel raised a Batson objection, the prosecutor offered several race-neutral reasons for the strike: Number one is what the court put on the record is that when she came to court originally with that knife, the people at the front door gave her the opportunity to, you know, either turn around and leave or leave the knife outside and come in. And instead of notifying the court or putting the knife down somewhere and coming in, she just disappeared. We couldn’t find her. The court had to send out a constable to get her. She was due at 10:00 this morning. We came back at 1:00, and she had been obtained from somewhere by the constable’s office. When she came in, she appeared to me to have a little bit — I don’t know if it was hostility or annoyance or what at being brought back down here. She did seem to — I think that she calmed down a bit. But I had the impression when she came in that she would hold that against the State at some point. When I asked her — in addition ... when I was going through the questions with her whether if the State proved the elements of capital murder to her beyond a reasonable doubt, would she be able to find someone guilty of capital murder, and there was a long pause. And then she finally said, yeah, I could. The other thing that gave me pause was when I asked her if the death penalty would ever be appropriate. She answered the questions in the questionnaire that wen[t] — number 99, “Do you believe in the death penalty?” And she said it wasn’t applicable. And she did say it was because she just hadn’t thought about it. But then when I asked her whether she ever could think of an instance where the death penalty would ever be appropriate, she said first, “I want to say no.” And then she thought a little bit about it and she said, “Well, I guess I could think of one.” She said that the death penalty would be appropriate for somebody who continues to kill. In her questionnaire when she answered number 106, she said, “Life in prison is more appropriate for someone convicted of capital murder when they continue to do the same act.” When I asked her about that here on the stand, she said, “Yes, if they continue to kill.” So it has nothing to do with her race or her sex or anything else. She has said that she would consider the death penalty for somebody who continued to kill. And then at first she would — she said she wanted to say no about the death penalty, and then finally said, “Well, if they continue to kill.” So for those reasons, we have moved to strike her. The record also shows that, before accepting juror Vana, the trial court thanked him for “waiting.” “The juror before you did not come in,” the trial court said, “and we had to send a constable out to get her.” The prospective juror that had to be retrieved was Mays, who had by then arrived. Defense counsel responded that there was no evidence before the trial court about what “really happened” when Mays was denied entry to the courthouse. Counsel stated that there was “some hearsay back and forth about what happened down there.” Counsel pointed out that the State had not actually questioned Mays regarding the events and her feelings about the situation. Counsel asserted that Mays’s answers to the prosecutor’s questions showed that she wanted to understand and be sure because she had never considered the issues before. After considering the State’s reasons and defense counsel’s response, the trial court overruled the Batson challenge, stating, “The court finds that the State’s reasons, based on the demeanor of the potential juror, are racially neutral.” Defense counsel faulted the prosecutor at trial for failing to question Mays about the events surrounding her late arrival to the courthouse, but neither did defense counsel question Mays about those events. Nor did defense counsel introduce any other “nonhearsay” testimony regarding those events. We have no reason to disbelieve the descriptions of events given by the trial court and the prosecutor, and more importantly, we have no reason to doubt the prosecutor’s belief in those descriptions. The trial court was in a position to evaluate the demeanor of both the prosecutor and the prospective juror. Given defense counsel’s failure to question Mays, we cannot agree with appellant’s contention that the defense rebutted the prosecutor’s rationale for the strike to the degree required to overturn the trial court’s ruling. Because there was ample support in the record for concluding that the prosecutor had race-neutral reasons for exercising the strike, we conclude that the trial court’s ruling was not clearly erroneous. Point of error four is overruled. B. Diminished Capacity/Intoxication Defense 1. Evidence In his first point of error, appellant alleges that the trial court erred in denying his request “to introduce evidence of an affirmative defense of diminished capacity.” During the guilt phase, appellant attempted to present the testimony of psychiatrist Dr. Susan Stone about appellant’s substance abuse and the effect it had on him. He sought to use this testimony to negate the mens rea of the underlying offense of burglary. On appeal, appellant argues that Dr. Stone’s testimony would have shown that appellant did not intentionally commit burglary because he believed that he had permission to be in Regina’s home. Near the close of the State’s case, defense counsel reminded the trial court that the defense wished to present Dr. Stone’s testimony regarding diminished capacity and requested that the trial court make a ruling in advance. The trial court asked the defense to make a proffer of what the testimony would entail. Defense counsel explained: In general, Your Honor, I believe the testimony of Dr. Stone would have to do with the effects of cocaine use, crack cocaine use, and how those effects could relate to the ability for a person to form intent, relate to the ability in terms to control impulse, the ability in terms of inhibition reduction and that would relate to the— At that point, the trial court stopped defense counsel, and the following exchange took place: The Court: This is my problem — go ahead. [Defense Counsel]: And mental illness. The Court: What mental illness? [Defense Counsel]: That’s what she would be testifying to. The Court: But what mental illness? Unrelated to the cocaine? Unrelated to the cocaine? Because everything I’m seeing— [Defense Counsel]: There is prior medical testimony about schizophrenia in his family. The Court: No. Him, specifically with him. [Defense Counsel]: It would be about the drug abuse. The trial court ruled: “These cases are squarely on point with mental illness, mental health issues where drug — -voluntary drug use has nothing to do with it. I will not let that evidence in.” There is no such thing as an “affirmative defense of diminished capacity” in Texas (other than insanity), but evidence of a mental disease or defect may be relevant and admissible to rebut or disprove the defendant’s culpable mens rea. The present case, however, involves the question of voluntary intoxication, which is governed by á specific statute. Penal Code § 8.04(a) provides: “Voluntary intoxication does not constitute a defense to the commission of crime.” Intoxication is further defined as a “disturbance of mental or physical capacity resulting from the introduction of any substance into the body.” In Ramos v. State, we construed this statute as prohibiting any attempt to use intoxication to rebut or disprove a defendant’s mens rea. In that case, as in this one, the defendant contended that “he was intoxicated to such an extent, that he failed to have the requisite intent necessary to commit a burglary.” We held that the defendant’s contention was contrary to longstanding Texas law that was recodified by § 8.04 of the Penal Code. We relied upon Ramos and the statute in subsequent cases to reject legal sufficiency claims based upon intoxication, and we explained in Skinner v. State that “Texas Penal Code § 8.04(a) bars the use of evidence of voluntary intoxication to negate the culpable mental state of a crime.” Because Dr. Stone’s testimony was proffered at the guilt stage of trial to show that appellant’s intoxication from cocaine use prevented him from forming the applicable mens rea, the evidence was inadmissible. Point of error one is overruled. 2. Jury Instruction In point of error nine, appellant alleges that the trial court erred in failing to properly instruct the jury at the guilt phase of trial regarding voluntary intoxication. Appellant complains that he “requested an instruction on voluntary intoxication’s effect upon modifying the knowing and intentional performance of the elements of the offense that make the case a capital murder.” Incorporating by reference his discussion contained in point of error one, appellant argues that an instruction should have been given because some evidence of his intoxication was presented through his confession and through lay witnesses. During discussions regarding the jury charge, defense counsel stated: [T]he defense has not made a request for a charge which clarifies, in our view, the law that voluntary intoxication is not a defense as in affirmative defense, insanity, self-defense, et cetera, and that the State is still required to show the requisite mens rea, and more importantly I think in a capital murder case than any other case, in that voluntary intoxication may, in fact, affect a person’s ability to form certain intent. In other words, the murder, regardless of how intoxicated, if intentionally committed, there is no defense there. However, if you have elements and prerequisites to the murder becoming a capital murder, that voluntary intoxication could go to and is appropriate to consider whether or not there’s a knowing and intentional performance of the elements of the offense that make it a capital murder. That’s about as unclear as it could be, but I think the court understood when I’m making it. So it’s simply we’re not making the request for the charge to be changed; we simply are going to argue that point and make reference to the court’s charge. Fair enough? The trial court asked defense counsel whether he wanted a ruling, and defense counsel replied, “You did indicate you would deny it.” Defense counsel continued, “And on that basis, we are not making a formal request for the charge. What we’re doing is we’re going to argue based on the charge as it is.” The above colloquy shows that appellant refrained from making an objection and did not obtain a ruling from the trial court. We need not decide whether the appellate complaint before us involves an alleged defensive issue, which would be forfeited entirely by appellant’s failure to object, or an alleged defect in the instructions regarding the elements of the offense, which would relegate any error to an analysis under the egregious harm standard. No error occurred here. With respect to intoxication, the trial court instructed the jury: “Voluntary intoxication does not constitute a defense to the commission of a crime. Intoxication means disturbance of mental or physical capacity resulting from the introduction of any substance into the body.” This instruction conforms to Penal Code § 8.04. We have already explained, in connection with appellant’s first point of error, that § 8.04 bars a defendant from using evidence of intoxication to challenge his culpable mental state. The trial court gave a proper instruction that says the exact opposite of what appellant now claims he should have received. Even absent § 8.04, however, appellant would still not be entitled to an instruction. No statute authorizes a defense of intoxication, or a special instruction on the mitigating value of intoxication, with respect to the guilt phase of trial in a capital murder case, nor does any statute make the absence of intoxication an element of the offense of capital murder. Absent a statute falling into one of those categories, any instruction suggesting that intoxication can be a defense to a crime would be improper and would constitute a comment on the weight of the evidence. Point of error nine is overruled. C. Autopsy Photograph In point of error six, appellant claims that the trial court erroneously admitted an autopsy photograph of the victim’s tongue. At trial, appellant complained that the photograph did “not go to the cause of death.” Defense counsel argued that the injuries shown could have occurred “if the ambulance hit a bump in the road” and that “the way it’s shown, ripped out of her face and a separate organ, that this is prejudicial and inflammatory in terms of the cause of death.” On appeal, appellant contends that the evidence was admitted in violation of Texas Rule of Evidence 403 because “the gruesomeness of this display far outweighs any probative value the evidence might have presented.” Rule 408 provides: Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence. A court may consider many factors in determining whether the probative value of photographs is substantially outweighed by the danger of unfair prejudice, including: the number of exhibits offered, their gruesomeness, their detail, their size, whether they are in color or black-and-white, whether they are close up, whether the body depicted is clothed or naked, the availability of other means of proof, and other circumstances unique to the individual case. The admissibility of photographs over an objection is within the sound discretion of the trial court. Autopsy photographs are generally admissible unless they depict mutilation of the victim caused by the autopsy itself. State’s Exhibit 139 is a photograph of a cross-section of the victim’s tongue which shows hemorrhaging within the tongue. Dr. David Dolinak, the chief medical examiner for Travis County, explained that in the photograph, it looked like the victim had recently bitten her tongue. The bruising, as described by Dr. Dolinak, was deep in the middle part of her tongue and indicated a significant bite. He elaborated that bruising of that nature was commonly present when “somebody has either sustained impact injury of the head or the neck or been strangled. Any time somebody is under duress [or] stress, and force is applied around the jaw or the head, we can see that.” Dr. Dolinak stated that while the damage could have resulted from a ligature or a blow to the head, he really “couldn’t say.” In order to view the deep bruising inside the victim’s tongue, it was necessary that the tongue be cross-sectioned. While Dr. Dolinak did testify that he “couldn’t say” that the hemorrhage occurred during the course of the offense, he also testified that such damage is most commonly caused by strangulation or an impact injury to the head or neck. The victim suffered both of these types of injuries. The photograph itself is not excessively gruesome and was necessary to show an injury not otherwise visible. Considering all factors, we conclude that the trial court did not abuse its discretion in determining that the probative value of the photograph was not substantially outweighed by its prejudicial effect. Point of error six is overruled. D. Confession 1. Background After committing the offense, appellant fled to a nearby shopping center, where he was apprehended. Officer Doug Perales, who was involved in appellant’s apprehension, was not able to detect that appellant was intoxicated. Officer Wroblewski did not notice that appellant was intoxicated at the time he was apprehended and did not recall appellant appearing like someone who had used crack cocaine or was intoxicated from crack cocaine. According to Officer Broomhall, appellant was very calm and did not smell of alcohol. Broomhall recalled that appellant became more agitated once he was placed into the back seat of the patrol car. Homicide detective Frank Rodriguez briefly spoke -with appellant while he was waiting in the patrol car. Rodriguez checked appellant’s injuries, gave appellant water, and called EMS. Rodriguez described appellant as being in an excited state. Rodriguez attributed appellant’s state to the recent events and the offense because appellant did not smell of alcohol and did not appear to have been using crack cocaine. Officers Caudill and Wroblewski transported appellant to the emergency room at Brackenridge Hospital where he was treated for cuts on his arm and face. Homicide detective Rogelio Sanchez arrived at the hospital and read appellant his Article 38.22 warnings from the “standard blue card.” Appellant asked the detective to “slow down” because appellant felt that they “had all the time in the world.” Appellant explained: “I don’t like the vibes I’m getting from you. I just want you to, you know, relax with me because I’m gonna be trying to feel everything you got inside you, because I’m my own person and I’m gonna be at ease at all times.” Detective Sanchez explained that he was trying to expedite the reading of warnings because hospital personnel were ready to stitch appellant up. Appellant replied, “I know my rights, get to your questions.” Detective Sanchez then read each of the warnings, one at a time, and asked appellant after each whether he understood the warning in question. Each time, appellant indicated that he understood. Detective Rodriguez, who was also present, observed that appellant seemed agitated when the warnings were read to him. After the warnings were read, Detective Sanchez asked, “Now after you get through being tended here at the hospital, I’d like to take you over to the homicide office for an interview. Is that — is that fine "with you? Yes or no?” Appellant replied, “That’s fine.” Detective Sanchez also informed appellant that he had two outstanding warrants for which he was being arrested. Detective Sanchez described appellant as conscious, alert, talkative, loud, and receptive to questions. Sanchez did not consider appellant’s loudness to be inappropriate; he believed “that was [appellant’s] personality.” Officer Caudill, who was also present, described appellant as calm, given the circumstances, and he interpreted appellant’s demeanor as somewhat arrogant. Detective Rodriguez observed that appellant’s demeanor vacillated between one of cooperation and that of being upset or mad. He also described appellant as receptive to questioning. According to Detective Sanchez, appellant showed no signs of being intoxicated or under the influence of any substances. Appellant’s eyes were not bloodshot, and his speech was not slurred. After appellant received local anesthesia and stitches for his injuries, Officers Wroblewski and Caudill transported him to the homicide division where he was placed in a small interview room without handcuffs. Appellant was given a Dr. Pepper and was left alone in the room for approximately thirteen minutes. About five minutes after the officers left, appellant put on his shoes. A minute later, he moved his chair and lay down on the floor. About four minutes later, he got up, walked around, and turned the light off. In the next couple of minutes, he turned the lights on and off again several times. At about 11:27 p.m., appellant turned the light on, raised his arms in the air, and said, among other things, “I thought we were having a [sic] interrogation. Seems like the silent treatment to me.” Within a minute, Detectives Sanchez and Rodriguez joined appellant in the interview room. Appellant asked the detectives if they were going to play good cop/bad cop. Detective Sanchez replied, “I don’t play that game.” Appellant then asked if the detectives were going to question him consecutively, and Detective Sanchez responded, “No.” Appellant then asked Detective Sanchez if he was the “lead detective.” Detective Sanchez replied, “No,” and appellant then asked, “So why am I talking to you?” Detective Sanchez then responded, “I am the lead detective.” Appellant replied, “You just said no you weren’t though.” Detective Sanchez responded, “I am, okay. What — what I’m not doing is playing games, okay?” Soon after this discussion, appellant asked to smoke a cigarette. Detective Sanchez responded that no smoking was permitted in the interview room. Appellant said, “Can you take me somewhere where I could smoke and talk because I— I’ll — I’ll talk better. If not, I might bullshit you all night — so that’s the chance you willing to take, because really — .” Detective Sanchez then stated, ‘Well, that’s a chance — that’s a chance I’m willing to take, okay?” Appellant replied, “Go ahead, go ahead.” Appellant and the detective then engaged in a colloquy on whether the Article 38.22 warnings needed to be read again: DET. SANCHEZ: So let me just start. APPELLANT: I know my rights. DET. SANCHEZ: Let me just start. APPELLANT: I’m past that, you don’t have to read them. DET. SANCHEZ: Well, I’m gonna read them, okay? APPELLANT: But you don’t have to read them. DET. SANCHEZ: Well, let me just read them to you. APPELLANT: Go ahead. Detective Sanchez proceeded to again read the Article 38.22 warnings. After each warning, he asked appellant if he understood his rights, and appellant nodded or answered affirmatively. When Detective Sanchez reached the point about an attorney being appointed if appellant could not afford one, appellant gave an inaudible response, and Detective Sanchez asked if appellant wanted that warning read again. Appellant responded, “Yeah,” but when the detective began reading, appellant asked, “Hold on, could you start over?” Detective Sanchez then proceeded to reread the article 38.22 warnings from the beginning. When Detective Sanchez again reached the language “if you are unable to employ a lawyer, you have the right to — ,” appellant interjected, “The state will appoint you an attorney for you.” Detective Sanchez then read the attorney-appointment warning and the warning regarding the right to terminate the interview at any time. Again, after each warning, Detective Sanchez asked appellant if he understood his rights, and appellant indicated that he did. After the article 38.22 colloquy was finished, Detective Sanchez again asked.appellant if he understood his rights, and appellant nodded. When the article 38.22 warnings colloquy was finished, appellant asked if he could ask the detective questions. When Detective Sanchez indicated that he could, appellant said, “Cool, let’s start.” Detective Sanchez responded, “[B]ut first ... I’m not gonna talk to you unless you tell me that you’re willing to waive your rights and talk to me.” Appellant replied, “Oh, I’ll waive my rights.” Detective Sanchez then asked appellant to sign the warnings card, which included a written waiver, but appellant was reluctant to do so until he was allowed to smoke a cigarette. The detectives responded that appellant would have to smoke in the garage, and he would have his hands cuffed behind his back. Eventually, Detective Sanchez asked, “Do you want to sign this card or not? Just say yes or no.” Appellant replied, “Yeah, but you might not get what you want unless I get what I want. But I’ll sign, that’s a start right there,” and he signed the card. After answering a number of questions, appellant asked, “Why do you need all of these questions, because you have [sic] already have a solid case?” Detective Sanchez then suggested that he may not have a solid case: DET. SANCHEZ: Do I have a solid case? APPELLANT: Do you? DET. SANCHEZ: I don’t know, you tell me. APPELLANT: I’m asking you. DET. SANCHEZ: I don’t know that I do. Appellant then responded, “If you don’t know that you do, then I’m not gonna give you one.” Detective Sanchez then asked, ‘You’re not gonna give me one?” and appellant responded, “Why should I?” Then Detective Sanchez asked, “Okay, so you don’t want to talk about it?” Appellant responded, “I will talk about it but I have not smoken any cigarettes yet.” Detective Sanchez replied that he was not going to let appellant smoke a cigarette. After a few more questions that failed to elicit information from appellant, Detective Rodriguez told appellant that they needed his side of the story. Appellant replied, ‘Y’all don’t need my side because I’m the one fixing to burn up for this shit and if y’all are some damned detectives — hold on, let me finish. If y’all are some detectives and y’all can detect and investigate and probe and then examine, asking me these questions is useless.” Detective Rodriguez then said that they wanted to understand “why.” Appellant responded, ‘You tell me what happened and I might could tell you why it happened if you tell me what happened.” Detective Rodriguez then asked appellant if he broke into the apartment, and appellant admitted that he “broke in.” Up to this point, appellant exhibited a calm demeanor. After admitting that he “broke in,” Appellant then told the detectives: Ask one question, want the truth. Now as far as I’m concerned, if this goes any more further, y’all ain’t gonna like what y’all hear and I’m not gonna like what I hear, because, first of all, I should have an attorney, that’s first of all, and I’m pretty sure y’all have already looked at my track record to see how many assaults I have on top of this other one that y’all are talking about, right. Aggravated assault with attempted murder, so do you think that I don’t know I’m going — that I’m not gonna get anything less than twenty? Detective Sanchez began to respond, “Well — ,” but appellant cut him off, becoming agitated and raising his voice, as he continued: “Do you — do you think that I don’t know this shit? And so if you think — if you — now I’m telling you that I know this shit, why the fuck should I give a fuck about helping y’all out?” Detective Sanchez responded, “Okay,” and appellant continued: “And I can’t even smoke a fucking cigarette. You can take me to my cot and I can lay my nigger ass down and I’ll go do my fucking time and I’ll play games in the god-damn system like they play with me.” Detective Sanchez then asked appellant if he could eall him by his given name, but appellant, beginning to calm down, indicated that he preferred to be called by his initials, S.P. Detective Sanchez then informed appellant that R.M. had been raped. Appellant responded, “Well you gotta prove that because I didn’t rape her.” Detective Sanchez then responded that R.M. was raped and that Regina Lara had been killed. Detective Sanchez then asked if appellant had “anything to do with that?” At this point, appellant returned to a state of complete calm and responded, “Umm, what do you think?” Detective Sanchez replied, “I’m asking you, I wasn’t there.” Appellant responded, “So basically, y’all haven’t got any — ,” and Detective Sanchez interjected, “I was at home having dinner, and I got a call to come over here and talk to you about it, and that’s why I’m here. I wasn’t there.” Appellant responded, “I killed her.” After confirming that appellant was admitting to killing Regina, Detective Sanchez asked, “Why?” Appellant then launched into a long invective about his reasons, with only slight responses or interruptions by the detectives. Eventually, the interview returned to question-and-answer format. Shortly into that portion of the questioning, however, appellant said, “Didn’t you just hear me say I killed her? What else do you want? You need the whole nine yards? Can I get a cigarette now, Homie? Can I get a cigarette now, Homie, and we could finish this shit.” Detective Rodriguez responded, “Okay.” Appellant said, “Please?” After the appellant and the detectives interrupted each other several times, appellant asked, “We can’t take a break?” Detective Sanchez replied, “No.” Appellant responded, ‘Well, then, I’m — I’m through, man.” Detective Sanchez said, “Okay.” Appellant stated, “I’m through man, if I can’t get no cigarette, that’s all you need to know.” As appellant was terminating the interview, he started to stand. Detective Sanchez told appellant to sit, and appellant complied, but as Detective Sanchez began to leave the room, appellant chose to stand again. Detective Sanchez told appellant to sit, but appellant refused, saying he would not hurt anyone. Appellant was told that he could stand if he wanted, and the detectives exited the room. While appellant was alone in the room, he made a number of statements. He demanded a cigarette numerous times and threatened to withhold any further information until he got one. Nevertheless, appellant volunteered several times that he killed the victim — saying once, “I killed that bitch.” Appellant spewed profanities, threatened to kill one of the officers or fight the officers, said that he hoped that he received lethal injection because he hated this planet, and said, “When I get to jail, it’s possible I will kill again, too.” Receiving no response to these statements, appellant became quiet, then started shouting obscenities while occasionally kicking the door, and then started kicking the door continuously. Soon, appellant was told to calm down. Detectives entered the room, carrying tasers, and told appellant to turn around and face the wall. Appellant complied. Appellant asked, “Is the interrogation over?” Detective Sanchez replied, “The interrogation is over. Okay, quit kicking my door, okay?” Appellant responded, “Man, all I wanted was to talk, man. I was gonna give you the whole story. You think I’m lying? You ain’t got everything.” Detective Sanchez replied, ‘You said you were finished. You’re finished, okay?” Appellant continued talking about how he wanted a cigarette, and just because he was guilty did not mean he did not deserve mercy, compassion, and the truth. Eventually, Detective Sanchez promised to give appellant a cigarette. However, Detective Sanchez’s sergeant did not allow appellant to smoke one at the station because of his behavior. Two days later, on August 24, 2006, the Travis County Correctional Complex psychiatrist, Dr. John Ford, had a routine visit with appellant. Appellant told Dr. Ford that he had no history of mental illness. During his evaluation, Dr. Ford saw no signs of mental illness and did not believe that appellant was in a drug-induced psychotic state when he was arrested. Three days after Dr. Ford’s visit, appellant was found lying in a fetal position with a sheet tied around his neck. It was determined that this was not a serious suicide attempt; appellant admitted that he acted stupidly. Dr. Ford again evaluated appellant on August 29, 2006, and noted that appellant was rational and reasonable. In September, several weeks after his arrest, appellant reported “hearing voices.” Dr. Ford prescribed anti-psychotic medications for appellant, and his mental state improved. Dr. Ford described the medications as a fairly substantial dosage that would not be tolerated by a person who was not mentally ill. While Dr. Ford agreed with defense counsel that a drug-induced psychosis could possibly persist for a month, he never made a diagnosis that appellant was suffering a drug-induced psychosis. At the trial court’s request, Dr. Maureen Burrows evaluated appellant for competency on July 8, 2007. Dr. Burrows found that appellant suffered from depression, but determined that he was competent to stand trial. She additionally found appellant to be coherent and not psychotic. While Dr. Burrows had reviewed some records that indicated appellant had suffered a drug-induced psychosis when he arrived at the jail, his hospital records did not support a psychotic diagnosis. Appellant was lucid during his evaluation and remembered details of his offense, which would be atypical for someone who was psychotic. At the trial court’s request, Dr. Burrows also reviewed the DVD of the statement appellant made at the police station. She saw no signs of psychosis in appellant’s behavior on the video. Appellant did not have any breaks with reality, and he displayed patterns of someone with full command of his faculties and with an intact memory. Appellant communicated logically with the officers. He also showed evidence of logical thought processes and attempts at manipulation, which are both inconsistent with psychosis. Dr. Burrows reported that appellant’s complaints regarding psychotic symptoms were inconsistent and were indicative of malingering. Dr. Ford, however, stated that he did not believe that appellant was malingering in terms of mental illness. 2. Voluntariness In point of error seven, appellant alleges that his confession “was not voluntarily] and knowingly entered into.” He cites Supreme Court due process cases that address whether, under the totality of the circumstances, a suspect’s will was overborne during interrogation. Appellant observes in passing that the trial court had ruled that appellant’s confession was admissible under Article 38.22. Appellant argues that a number of “factors militate against a finding of voluntariness.” He points out that the police initiated the interrogation and interviewed him in a police interrogation room with a hidden camera. He contends that they employed “questionable interrogation tactics” such as “leading questions, repeated verbal attacks, creating a heightened sense of fear, disbelief or repeated questioning on answers that do not match the crime scene.” And he claims that he “had just been through multiple days without sleep, prolonged drug use which, affected his abilities to understand and knowingly waive his rights, as well as a physical confrontation with the police, which ended with him being taken to the hospital, where he received stitches and local anaesthetics.” He also claims that he was either under the influence of drugs or suffering from the after-effects of “coming off’ drugs, that his “mental state at the time he was given and waived his Miranda rights was unquestionably altered,” and that, soon after his incarceration, the treating physician in the jail began to administer three very potent anti-psychotic drugs that would cause significant side effects in a normal person but seemed to improve appellant’s condition. Appellant also discussed medical testimony suggesting that he may have been psychotic at one time or prone to psychosis. Appellant concludes: Under the totality of the circumstances, taking into consideration the factual inquiry, both the conduct of law enforcement and the suspect’s capacity to resist that pressure, it is obvious that appellant was unable to withstand the onslaught of his interrogators, in conjunction with this interrogation technique caused a subordination of his will to resist. The statement appellant gave was not of his own rational intellect and free will. Appellant requests that this Court find that his confession was not voluntary and find that its admission violated his Constitutional rights, and reverse and remand this case for a new trial. A statement is obtained in violation of constitutional due process only if the statement is causally related to coercive government misconduct. Coercive government misconduct renders a confession involuntary if the defendant’s “will has been overborne and his capacity for self-determination critically impaired.” Whether this has occurred is determined by assessing the “totality of all the surrounding circumstances,” including “the characteristics of the accused and the details of the interrogation.” Under Article 38.22, a statement must be “made under voluntary conditions,” and a suspect must “knowingly, intelligently, and voluntarily waive[] any rights set out in the [Article 38.22] warning.” The statutory inquiry does not necessarily turn on police overreaching: “A confession given under the duress of hallucinations, illness, medications, or even a private threat” could render a statement involuntary under Article 38.22. We disagree with appellant’s claim that the police engaged in questionable practices. We perceive no police misconduct in this case. Appellant was given Article 38.22 warnings on multiple occasions. Detective Sanchez was especially diligent in reading the warnings in their entirety, in making sure that appellant understood them, and in obtaining an express waiver by appellant of his rights. Detective Sanchez made it clear that whether appellant participated in an interrogation was entirely his choice. Detective Sanchez even suggested that he might not have a solid case. The detectives would not allow appellant to smoke in the interview room, but they never suggested that being allowed to smoke depended upon appellant’s participation in the interrogation. Because appellant was under arrest, the officers were not required to let him smoke at all, and at the beginning of the interview, the officers did not foreclose the possibility of appellant smoking in the police garage, albeit in handcuffs. We also disagree with appellant’s contention that his waiver of rights and his statement were not products of his own rational intellect and free will. The evidence at trial shows that appellant was willing — even eager — to talk to the police. Appellant repeatedly told the detectives that he knew his rights, and, after being read the article 38.22 warnings, he repeatedly affirmed that he understood them. Although appellant indicated some trouble when Detective Sanchez read the warning about appointment of counsel, appellant later paraphrased that warning intelligently. Appellant was calm through most of the interview, and he exhibited a rational understanding of the questioning. He understood, for example, that if the police did not have a solid ease, his participation in the interview might give them one. Although expert testimony indicated that appellant may suffer from mental illness, the testimony also indicated that appellant was not suffering from a psychosis at the time of the interviews. Appellant did ask for a cigarette several times, but he did not appear to be suffering any significant withdrawal symptoms— from nicotine, cocaine, or any other drug. In United States v. Kelley, the Ninth Circuit held a statement to be voluntary even though the suspect was suffering from heroin withdrawal. Two thirds of the way through the interview, Kelley “began experiencing chills, shaking, and trembling.” Despite those symptoms, Kelley “remained coherent and responsive” and the court concluded that the “effects of withdrawal did not overcome Kelley’s ability to think rationally.” Whatever cravings appellant may have been having for cigarettes, they were not nearly as severe as the withdrawal symptoms exhibited by the suspect in Kelley. Point of error seven is overruled. 3. Request for Counsel In point of error eight, appellant complains that his confession was inadmissible under Miranda because the detectives failed to honor his request for an attorney. He claims that his statement, “I should have an attorney,” accompanied by his question about why he should help out the detectives, constituted an unambiguous invocation of his right to counsel, and that the detectives failed to honor that invocation when they continued the interview. According to Detective Sanchez, “It was our interpretation at the time that he hadn’t actually invoked. He didn’t say he wanted an attorney. He was making a suggestion, so we didn’t interpret that as him invoking his right to an attorney.” The trial court found the “I should have an attorney” statement to be ambiguous: “Based upon the totality of the circumstances, the court finds that — the statement to be in context from the entire conversation with [appellant], that the statement was ambiguous.” The trial court also found that, even if the statement was not ambiguous, “[appellant] immediately reinitiated the interview with the officers and continued to ask them questions.” When a suspect asks for a lawyer, interrogation must cease until counsel has been provided or the suspect initiates further communication with the police. To trigger law enforcement’s duty to terminate the interrogation, a suspect’s request for counsel must be clear, and the police are not required to attempt to clarify ambiguous remarks. Whether a statement referring to a lawyer constitutes a clear request for counsel depends on the statement itself and the totality of the circumstances surrounding the statement The test is objective: whether the suspect “artieulate[d] his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney.” If the accused’s invocation of the right to counsel is clear, his responses to further questioning may not be used to cast doubt retrospectively on the clarity of his initial request. In Davis v. United States, the Supreme Court held that the statement, “Maybe I should talk to a lawyer,” did not constitute a clear request for counsel. The Supreme Court has not addressed whether its analysis would change if the word “maybe” was absent from the statement. But, relying upon Davis, a number of other jurisdictions have found declarative statements without the “maybe” modifier to be ambiguous: “[B]ut, excuse me, if I am right, I can have a lawyer present through all this, right?,” “I think I need a lawyer,” “I think I better talk to a lawyer first,” “[T]he best thing I can do is, for myself, is to shut the hell up and not talk about this without first talking to a lawyer,” “I probably should have an attorney,” “I feel as though I should have an attorney ... because how ugly this looks on me,” “I’ll be honest with you, I’m scared to say anything without talking to a lawyer,” and “I think I should see an attorney.” Other jurisdictions appear to have come to a contrary conclusion, finding an unambiguous request for counsel in statements such as “I think I need a lawyer present,” “Well, I think I need a lawyer,” “I think it would be in my best interest to talk to an attorney,” “I think I’d rather talk to a lawyer,” and “I think I should call my lawyer” — although those courts also observed that law enforcement agents who heard the statements understood each to be a request for counsel. A few courts have found an unambiguous request for counsel in statements that included the clause, “I should talk to a lawyer.” In Smith v. Endell, the suspect said, “Can I talk to a lawyer? At this point, I think maybe you’re looking at me as a suspect, and I should talk to a lawyer. Are you looking at me as a suspect?” The Ninth Circuit held that the suspect had made a clear, though conditional, request for counsel. Because the condition had been satisfied (Smith was considered a suspect), the suspect’s statement was an unambiguous invocation of his right to counsel. In State v. Romero, the suspect said, “Yea. Cause I, ya know, I’m not gunna lie man, ya know, I mean I should wait, and I should talk to a lawyer and this and that and ya know because I do want to go to trial on this.” The trial judge in that case found the statement to be an unambiguous request for an attorney and granted the defendant’s motion to suppress Upholding the suppression order in an interlocutory appeal, the Supreme Court of Colorado found that the evidence supported the trial court’s finding that the suspect had “reasonably conveyed his desire for the assistance of counsel.” Giving deference to the trial court’s assessment of the factual issues, the Supreme Court of Colorado observed that the trial court “did not accept [the police officer’s] explanation that the suspect was in effect saying, T know I should talk to a lawyer, but I’m going to tell you what happened.’ ” In a dissent, Justice Mullarkey argued that “it is entirely unrealistic to ask a police officer to distinguish the statement in Davis — ‘Maybe I should talk to a lawyer’ — which the Supreme Court held was not a request for counsel, and the statement in this case — ‘I should talk to a lawyer.’ ” A later Colorado Supreme Court case has explained that Romero stands for the proposition that “a reasonable officer would have understood the statement, ‘I should talk to a lawyer ... because I do want to go to trial on this’ to be a clear request for counsel given the surrounding circumstances.” Appellant’s statement “I should have an attorney” was not in the form of a request, nor did appellant expressly say that he wanted a lawyer. Even in cases such as Smith and Romero, where a “should” statement was determined to be an unambiguous request, the courts have suggested that the surrounding circumstances were highly relevant considerations. Assuming arguendo that a “should” statement could constitute an unambiguous request under the right circumstances, the circumstances present here convince us that a unambiguous request for counsel was not made. Use of the word “should” could simply mean that appellant believed having an attorney was in his best interests, but he could choose to disregard his best interests and talk to the police anyway. This interpretation of events is bolstered by appellant’s immediately preceding statement, “[I]f this goes any ... further,” the police are not going to like what they hear. That appellant’s statement, “I should have an attorney,” was not a request for an attorney is also bolstered by the fact that he subsequently asked the detectives why he should help them out. In his brief on direct appeal, appellant characterizes his question to the detectives as “rhetorical.” But it may have been a real question. Whether the question was rhetorical or real is ambiguous. If the question was real, then appellant was signaling that the interview should continue, at least for the moment, by asking the officers to give him a good reason to cooperate. The officers did so by explaining that R.M. had been raped, and the interview continued without appellant saying anything that could be construed as an objection to doing so. And although appellant’s question was asked after he said, “I should have a lawyer,” that question came very soon after-wards, before the detectives asked any other questions. We hold that appellant’s statement was not, under the circumstances presented here, a clear request for counsel. Point of error eight is overruled. E. Unanimous Verdict In point of error ten, appellant alleges that the trial court erred in its instructions to the jurors regarding a finding of a unanimous verdict on the underlying offense of burglary of a habitation. The trial court instructed jurors, over objection, that they “need not be unanimous as to the way that the burglary of a habitation was committed so long as each of you individually believes beyond a reasonable doubt that the defendant committed the intentional murder of Regina Lara in the course of committing ‘Burglary of a Habitation.’ ” The jury charge included instructions regarding all of the statutory means of committing burglary, along with the definition of the offense of sexual assault of a child, and the instruction that sexual assault of a child is a felony. Appellant points out that the underlying offense of burglary, as instructed, could involve: (1) burglary based upon theft of property from Regina, or (2) burglary based upon the sexual assault of R.M. Appellant argues, “Because there are two victims of burglary of a habitation and two distinct and separate crimes committed against them, under the Bloclcburger test there are two different offense[s].” Although the double jeopardy and jury unanimity strands of our jurisprudence are closely intertwined, the Block-burger “same elements” test is not the sole test to be used in either context. In the jury unanimity context, whether different legal theories of committing a crime constitute different offenses or merely constitute alternate methods of committing the same offense usually depends upon the focus or gravamen of the offense or offenses in question. With respect to homicide offenses — which focus on the death of an individual — “we have held that different legal theories involving the same victim are simply alternate methods of committing the same offense.” For capital murder prosecutions in particular, we have held that a jury charge may disjunctively allege different capital murder theories with respect to the same victim. The jury charge may disjunctively allege “all alternate theories of capital murder contained within § 19.03, whether they are found in the same or different subsections, so long as the same victim is alleged for the predicate murder.” Appellant contends that there were two underlying burglaries because there were two victims (Regina and R.M.) and two underlying offenses connected with the unlawful entry (theft and sexual assault). Even if that were so, there would still be only one capital murder, based upon the murder of Regina. Nothing prohibits a single capital murder from containing alternate underlying offenses that are the same statutory offense but with different victims or different underlying methods of commission, so long as the same victim is alleged with respect to the predicate murder. In any event, appellant’s contention regarding burglary is incorrect. The gravamen of a burglary is the entry without the effective consent of the owner, so the existence of multiple victims, or multiple underlying offenses connected with the entry, does not convert a single unlawful entry into multiple burglaries. Point of error ten is overruled. III. PUNISHMENT A. Jury Selection 1. Denial of Defense Challenge for Cause In point of error two, appellant complains about the trial court’s refusal to grant a challenge for cause against prospective juror Dominguez. Appellant alleges that Dominguez stated that he would automatically find an individual to be a future danger after finding him guilty of capital murder. Appellant also argues that Dominguez had a bias because he would “lean towards” finding that someone was a future danger based upon a guilty finding. Before harm can be shown on the record with respect to a trial court’s denial of a challenge for cause, a defendant must: (1) use a peremptory strike on the eom-plained-of venire member; (2) exhaust his peremptory strikes; and (8) request an additional peremptory strike to use upon a specifically identified objectionable venire member who, because the extra strike is denied, actually sits on the jury. In a death penalty case with only one defendant, the defendant is entitled to fifteen peremptory challenges. The record shows that appellant used only nine of his fifteen peremptory strikes. Appellant did not suffer harm with regard to this complaint. Point of error two is overruled. 2. Witherspoon Claim In point of error three, appellant claims that the trial court erred in granting the State’s challenge for cause against prospective juror Paul. Appellant argues that Paul’s answers to the parties’ questions showed that he would have been able to answer the special issues, would have been able to take the oath, and would have been able to follow the law as given by the trial court. Referring to Witherspoon v. Illinois and Wainwright v. Witt, appellant claims that he has “the right to an impartial jury drawn from a venire that has not been tilted in favor of capital punishment by selective prosecutorial challenges for cause,” and he claims that the trial court’s action here resulted in reversible error under Gray v. Mississippi. Under Witherspoon and its progeny, a trial court may grant a State’s challenge for cause on the basis of a prospective juror’s conscientious scruples about the death penalty if the prospective juror’s views “would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.” We review a trial court’s ruling on such a matter with “considerable deference” because “the trial court is in the best position to evaluate the veniremember’s demeanor and responses.” When a prospective juror’s answers are “vacillating, unclear, or contradictory,” we accord particular deference to the trial court’s decision. We will reverse a trial court’s ruling only if the record shows a clear abuse of discretion. During examination by the State, Paul explained that he was responsible for six restaurants and that sitting on the jury “would be a huge problem.” He did not believe that he could give the case the attention needed. When the State also examined Paul regarding his questionnaire answer that he “dislike[s] reasonable doubt and think[s] it gives an out for criminals,” Paul explained: I think to prove something beyond a reasonable doubt, unless I was physically there watching it or there was a camera there, you know, to catch something that presented evidence, I don’t see how you can put someone to death or, you know, say life imprisonment, when you hear all the time of cases that are overturned for, you know, DNA or whatever. Paul added that he thought “it would be very hard to put someone to death based on something nobody really knows except the people involved in what occurred.” When asked whether