Full opinion text
OPINION HERVEY, J., delivered the opinion of the Court in which MEYERS, JOHNSON, KEASLER, COCHRAN, and ALCALA, JJ., joined. Appellant was charged with capital murder for the death of her two-year-old daughter, Mariah. A jury convicted appellant of this offense, and the trial court sentenced appellant to death pursuant to the jury’s answers to the special issues at the punishment phase. Appellant raises fourteen points of error on direct appeal. Finding no reversible error, we overrule these points of error and affirm the trial court’s judgment. The evidence presented in this case shows that, at about 7:00 p.m. on Saturday, February 17, 2007, paramedics were dispatched to an apartment where appellant lived with nine of her children and an adult male named Robert Avarez, who was the father of at least seven of these children and whom appellant referred to as her husband. One of the paramedics (Nester) testified that, when the paramedics entered the apartment, they found Mariah unattended and lying on her back in the middle of the floor not breathing and with no pulse. Nester observed that appellant’s “distant” and not “overly distressed” behavior was “so far out of the ordinary” that he “put it into the report.” Nester also testified that he “noted the fact that [appellant] was not — she wasn’t even within arm’s reach of the child much less trying to gasp [sic], hold her, or trying to do anything to hold them [sic].” Appellant told police and paramedics at the scene that Mariah had fallen down some stairs. Mariah was transported to a hospital emergency room where she was pronounced dead. The condition of Mari-ah’s body indicated that she had been severely abused. There were bruises in various stages of healing covering her body, there were bite marks on her back, one of her arms had been broken probably about two to seven weeks before her death, and she was missing portions of her hair where it had been pulled out by the roots. The emergency room physician (Vargas) testified that this was the “absolute worst” case of child abuse that he had seen in his 30 years of practice. Vargas also testified that his emergency-room visual and manual inspection of Mariah indicated no apparent signs of a head injury. The chief forensic pathologist for Cameron and Hidalgo Counties (Farley), who conducted Mariah’s autopsy on Monday, February 19, 2007, testified that Mariah’s cause of death was “blunt force head trauma,” which would have occurred within 24 hours prior to her death, and it would have been immediately apparent that Mariah was in distress and in need of medical attention. Farley testified that Mariah suffered “multiple contusions” to her head area and that “blunt force head trauma ... basically means, beat about the head with something — an object, a hand, a fist, or slammed.” Farley testified that these injuries would not have been caused by falling down some stairs and that this was the most severe case of child abuse she had ever seen. On the night of February 17, 2007, several investigators questioned appellant for about five hours, beginning at about 10:00 p.m. This interview was videotaped and was admitted into evidence in three separate DVDs (State’s Exhibits, 3, 4, and 5). Appellant initially told the police that Ma-riah had fallen down some stairs on Thursday night, February 15, 2007. For about three hours, appellant denied any knowledge of how Mariah became so badly bruised and suggested that her older children could have been responsible. Texas Ranger Escalón began to question appellant about two and one-half hours into the interrogation. Escalón testified at trial that, while he observed other investigators questioning her, he could tell from appellant’s demeanor that she was “beat” and that she was “hiding the truth.” Q. [STATE]: Now, Officer, as you went in, you waited for a pause before you went in and you introduced yourself? A. [ESCALON]: Yes, sir. I did. Q. Can you describe to the jury how you go about doing that? A. Well, my initial observation — that’s when the investigation starts, is when I walked into the room and I see the investigators interviewing the suspect. I’m just observing right now, trying to soak it all in, and see what we have, and try to get a better idea about this lady. And I observe her, how she’s answering these questions, her demeanor, how she’s standing. All of that is telling me — it’s like a picture, almost — I’m observing everything, and that is already feeding me — that’s already telling me what I’m dealing with. Okay? And then I see the investigators and I’m just making note — I’m am [sic] making note— you know: Okay. This is what I have. Q. What type of demeanor would you describe her having? A. When I walked in, she was not making eye contact with the investigator. She had her head down. So right there and then, I knew she did something. And she was ashamed of what she did, and she had a hard time admitting to officers what had occurred. That’s what crossed my mind. And I knew she was beat. I knew — when I say she was “beat” — she was giving up. She wants to tell because she’s giving that slouched appearance — you know: I did it. I’ve given up. I need to interview her, visit with her a little more. That’s what I sensed. And I get that because of my experience in law enforcement, and my experience in interviewing people. Every time it’s pretty much similar, in demeanor, in people and that’s what I have experienced. Q. Have you had other types of experiences in your experience as a trooper and investigator in interviewing people? A. That’s one of the most common clues you would call — that you see-somebody with their head down, and like their shoulders are slouched forward, and they won’t look at you. They’re hiding — hiding the truth. Escalón testified that appellant began to “open up” with him after about 20 minutes of questioning. Appellant’s recorded statement reflects that she told Escalón that she, and only she, had been “spanking” or “hitting” Mariah since sometime in December 2006. Appellant stated that Alvarez never “hit” or “spanked” Mariah and that Alvarez was unaware of most of the bruises on Mariah’s body. Appellant also stated that none of the other children “beat” Mariah and that no one except appellant “beat” Mariah. Appellant also stated that Mariah had been in her care for at least the previous three days. The jury also saw appellant on the videotape demonstrate with a doll how she abused and “spanked” Mariah. Appellant also stated that she would “hit” Mariah when appellant got mad. Appellant also described how she pinched Mariah’s vagina and how she would sometimes grab and squeeze Mariah’s arm. Appellant described how she bit Mariah twice on the back at different times about two weeks before Mariah’s death. Appellant said that on one occasion she bit Mari-ah on the back for no reason while she was combing Mariah’s hair. Appellant said, “I just did it.” Appellant also stated that she would “spank” Mariah several times “day after day.” Appellant stated that Mariah was “sick” on the day that she died, but that she was afraid to take Mariah to the doctor because of all the bruises on her. Appellant also stated that Mariah would not eat and that her breathing was heavy. Appellant said that Mariah slept all day on February 17, 2007, and that she would lock her teeth together when appellant would try to feed her. This was consistent with “blunt force head trauma” symptoms that Farley described. Q. [STATE]: If the child suffers the type of brain injury that you’ve identified on this exhibit, would this child be able to sit up, eat Cocoa Crisps, and things of that nature? A. No. Usually with this kind of hemorrhage, the child has some type of immediate sign. Most of the time, they say they’re very tired. They may seize and get very tense, and then relax, and get very tense, and then relax. People may not realize what it is, but sometimes parents will realize that that’s a seizure, and they’ll say, they’re seizing. Yet, they’ve never had a seizure before. The other thing they will tend to do, is, the pressure increases because the brain will start to swell. They might start to vomit. And so if an ER doctor sees them, they may think they have a gastrointestinal virus, or something. But they’re vomiting because of the pressure in the head. So seizing — lethargy being very tired. Coma is very consistent. Abnormal respirations — they’re breathing a little funny. They take a big breath, and then they sit. And then it might go out. And then — ten seconds later, maybe another breath. So the breathing starts to also be affected as the brain starts to swell. Q. Like on this type of injury, how far back would those symptoms had [sic] been known to somebody that is watching the child? At least since the inception, or when? A. It’s usually fairly quickly after the fatal blow occurs that they’ll start to have the symptoms. And the first symptom is, they’re usually, they’re tired. They can’t keep awake. That’s the lethargy. They just can’t get them up — can’t get them awake. They won’t eat or drink, usually. And if they do, they vomit it. Q. Do they ever suffer a condition where they can’t open their mouth— where their jaws are locked? A. If the jaws are locked, that’s probably a seizure. Because things tighten up and you have muscles here that tighten and relax, tighten and relax, but it shouldn’t stay that way, indefinitely. Escalón also testified that, when he questioned appellant, he did not know, but he suspected, that Mariah had died from a fractured skull. Escalón can be seen and heard on the videotape informing appellant that an autopsy would be performed on Mariah and asking appellant “if they’re going to find a fractured skull.” Appellant replied that an autopsy would show that Mariah did not have a fractured skull, and appellant denied hitting Mariah in the head. Escalón also testified at trial: Q. [STATE]: Now when you’re going through the interview with her, did you know the cause of death — the exact cause of death at that point? A. [ESCALON]: No, sir. I did not. Q. Based upon your experience of being a police officer or a ranger, and a DPS trooper, did you have a suspicion of what that cause of death was? A. Yes, sir. I did. Q. What had you suspected occurred here to the child? A. Head trauma. Q. And I think at one point she admits to all of the [visible] injuries except for the scratch on the face and one on the heel? A. Yes. Q. Now in the video, there is no actual — she doesn’t actually say that she in one direct blow, or one direct shot, hits Mariah on the head, or the head area other than general spanking. Is that true? A. Yes, sir. Q. [DEFENSE]: Okay. But the head trauma you didn’t learn until, when you went into the autopsy, when you found out there was brain hemorrhage, and that’s what killed this child. Not the beatings, and the black and blue marks all over her body? A. [ESCALON]: Again, when she was telling me what she did to that child, led [sic] me to believe based upon my experience the head trauma was very suspicious in this case. Q. The emergency room doctor, yesterday, stated that you couldn’t see that there was brain hemorrhage, and that the brain hemorrhage was something that wasn’t noticeable until later on. A. There’s other signs of trauma that can cause bleeding inside of the brain. It doesn’t have to be visible. Other signs of shaking — hitting. A police officer (Villarreal) testified that he allowed appellant to make a cell-phone call to her sister while he was transporting appellant to a dental office for a dental mold. Villarreal testified that appellant appeared to be agitated and that he heard her say during the telephone call, “Don’t blame Robert. This was me. I did it. So don’t blame Robert.” The defense presented the testimony of a medical expert (Kuri), who seemed to testify that Mariah’s fatal injuries could have been caused by a fall down the stairs. Q. [DEFENSE]: And your testimony, basically, is that the falling down the stairs is consistent with — just as consistent with the cause of death of this child as what the State is trying to suggest as the beating? A. Well, we received a patient — a body that have [sic] a severe head injury. It was not caused by a simple force. It was caused by a serious force. So what type of serious force? But she — the mother hit her against the wall or somebody else? I am not saying the mother. But any person that would have caused her, okay, or fell, that’s trauma. See? There’s trauma on the head. What produced it? I don’t know. I don’t think— in the head, it is specific. There is no doubt that she died because of the hemorrhage that was produced by the trauma. Now, if you ask me the question: Which would be the type of trauma? So, if she fell from the stairs and rolling, if that’s how she died? That could be one. Hitting against the board? Yes. Hit by a strong force? Too. It could be. During closing jury arguments, the defense argued that the jury should acquit appellant because she was guilty only of “injury to a child” for the nonfatal injuries that she inflicted upon Mariah before the fatal injuries that Mariah suffered for which appellant disclaimed responsibility. The defense also claimed that appellant was guilty only of “injury to a child” for failing to get medical attention for these fatal injuries. The defense thus claimed that appellant did not cause any of Mari-ah’s fatal injuries. The defense also questioned whether the State’s evidence excluded the possibility that these fatal injuries were caused by Mariah falling down stairs. [DEFENSE]: Now, in the opening remarks that we made in the beginning of the trial after you were all seated here, I told you my client is not up for “Mother Of The Year.” I told you that my client is guilty of injury to a child. She is and she has admitted that. The question here before you is whether or not on February 17, 2007, Melissa Lucio intentionally and knowingly killed Mariah Alvarez. That’s the issue. That’s the issue. Not whether she beat her. Not whether she broke her arm. Not whether she’s a lousy mother or didn’t provide for her children. That’s not an issue. The issue is whether or not she killed Mariah on the 17th of February, 2007. This whole case revolves around this video. This video is real important. If you have — if you cannot remember it all, play it again. It’s a long, long video. And I’m sorry for that. But this is the key to everything in this case. Folks, the State wants you to believe that that’s a confession. Does the State know at the time of the video, the caused [sic] of death of Mariah? No. They don’t know the cause of death of Mariah until the next day when they go do the autopsy. They learn after the autopsy that Mariah died from brain hemorrhage. Blunt force trauma to the head. That’s when they first know about it. She confessed to what? She confessed to bruising that child from head to foot. She confessed to neglect. She didn’t confess to murder. * * * But I want to go back to the video because the video says a lot. The video is very important. Study that video because that’s where the [sic] all of the key is [sic]. Melissa Lucio said things. She didn’t have an attorney. Nobody is there to coach her and tell her what to say or how to say it. She’s there on her own. She has got Salinas, Cruz, Banda, Villarreal, and Escalón. Five law enforcement officers throwing questions at her. She’s there on her own. Nobody is helping her. And she has told everything she knows and nobody is listening. She is telling us much: I beat this child. I neglected this child. I hurt my child, but I didn’t kill her. I didn’t hit her in the head. So how did she get the brain hemorrhage? Fell down the stairs. She fell down the stairs. Melissa Lucio says she fell down the stairs. What evidence does the State have to prove to you that this is not possible, that it didn’t happen? They don’t have anything. And there’s a reasonable doubt, and that is the possibility of falling down the stairs. The State argued that the evidence and inferences from the evidence that appellant abused Mariah show that it was appellant who inflicted Mariah’s fatal injuries. [STATE]: What injuries did the child have, if not a brain injury? Well, they tried to differentiate between: Well, you know what? I may have caused 110 bruises. I may have caused two or three bites on the body. I may have twisted the arm and broken it. But you know what? I never hit her on the head. Is that reasonable? Is that reasonable? That child was slapped, according to Dr. Farley, that child was hit across the head and that’s what caused the brain hemorrhage. It wasn’t. Because the evidence was inconsistent because of the abuse that this child had taken. * * * But the bottom line is she committed the acts which led to the cause of [Mariah’s] death. This child had bruised kidneys, a bruised spinal cord and bruised lungs. How do you do that? I mean, what force does it take somebody to cause such devastating injuries to a child and then say: You know what? I never touched her across the head. That’s just totally — totally unbelievable. * ⅜ * You can draw inferences from the evidence, ladies and gentleman. And the inference is clear that she caused those injuries because it’s consistent. It’s consistent with her behavior. It’s consistent with her pattern of conduct towards this child. If this child had just come in with a head injury and nothing else, you might have said: You know what? It may have been a fall. The State presented evidence at the punishment phase that appellant has a pri- or driving-while-intoxicated conviction. The State also presented evidence that appellant committed several disciplinary violations in the county jail such as fighting with and having verbal disagreements with other inmates, possession of contraband, unauthorized communication with another person, and being disrespectful to a guard. The defense characterized these incidents as minor. The State also presented the testimony of a criminal investigator (A.P. Merrillet) for the State of Texas Special Prosecution Office, who testified about the opportunities that a life-sentenced appellant would have to commit criminal acts of violence in prison. Merril-let also testified that he had prosecuted many prison guards for having consensual and nonconsensual sex with female inmates. The defense elicited testimony from Merrillet on cross-examination from which a jury could conclude that there would be a low statistical probability that a life-sentenced appellant would be dangerous in prison. The State also presented the testimony of Estrada, who was a Child Protective Services (CPS) case worker. Testifying under a grant of transactional immunity because “[tjhere was talk about [CPS] being indicted” as a result of Mariah’s death, Estrada testified that CPS removed Mari-ah and all of the other children living with appellant from appellant’s home for physical neglect and negligent supervision just after Mariah was born on September 6, 2004, and placed them in foster care. Appellant visited Mariah while she was in foster care. CPS returned Mariah and eight other children to appellant’s home on November 21, 2006. Appellant told the police, during her recorded statement, that she was not close to Mariah because CPS removed Mariah from her home three weeks after she was born. Estrada also testified about the various contacts that CPS had with appellant between December 21, 1995, and Mariah’s death on February 17, 2007. Estrada testified that the CPS investigated various allegations, usually involving allegations of neglect and neglectful supervision, in 1995, 1996, 1998, 2000, 2001, 2002, 2003, and 2004. Estrada testified that appellant often tested positive for cocaine and that two of appellant’s newborns tested positive for cocaine during this period of time. Estrada testified that “since '04 [appellant] had about 17 or 18 positives and about 11 negatives.” The defense suggested, through its cross-examination of Estrada, that CPS should not have returned the children “to a parent who tested positive for drugs 18 times and negative for drugs 11 times.” Estrada also testified that appellant tested negative in the two drug tests that were offered between November 2006 and February 17, 2007. In her recorded statement, appellant told the police that she had not used drugs since February 2006, but that Alvarez had recently begun using crack cocaine. The police found paraphernalia for smoking crack cocaine in a search of appellant’s apartment after Mariah’s death. Farley testified that Mariah had cocaine in her blood at the time of her death. Other evidence was presented that appellant received about $5,000 per month in welfare benefits most of which the State claimed appellant used to support a cocaine habit. Appellant presented the testimony of two mitigation experts (Villanueva and Pinkerman). These experts testified, based primarily on appellant’s statements to them after the charges in this case had been filed, that appellant was depressed and that she was a battered woman and had been sexually abused as a child. For example, Villanueva and Pinkerman testified, Q. [DEFENSE]: Was she — is there any indication that she was ever abused as a young child? A. [VILLANUEVA]: Yes, she was. She was sexually abused by one of her mother’s lovers, a live-in lover, and it lasted for approximately two years, the duration that he was in the home. * ‡ ⅜ Q. [DEFENSE]: Is there any kind of abuse by her first marriage? A. [VILLANUEVA]: Yes. Her first husband, which was her only legal marriage, Mr. Lucio, he was an alcoholic. And he was emotionally and verbally abusive most of the time and physically abusive when he was drunk. But being an alcoholic, that was quite active. There was also a very manipulative relationship there with her sister-in-law Sylvia, who introduced her to cocaine. She was 16 years old. * * * Q. [DEFENSE]: And your findings in this case? A. [PINKERMAN]: In the part of the assessment with the intelligence test, the other part is more of a personality test to determine my general diagnostic impressions. And my general diagnostic impressions of her were that she was overutilizing a lot of repression and denial. And repression to the point where, again, a disconnect between thoughts and feelings or experiences and feelings. And I saw that in both her test behavior and in my observations that I reported earlier. In assigning diagnosis to her, what I identified is that she had a presentation consistent with major depression with prior substance abuse which was in remission. But maybe most importantly post traumatic stress disorder in how she, I guess, psychologically was organized. And those are the three major areas of concern that I saw with her. She was also, and I also acknowledged it in a different report, the victim of prior physical and sexual abuse both as an adult and as a child. Villanueva also testified that appellant “has no history of aggression at all as a child, adolescent or through her entire CPS history, which was a good part of her adult life.” Pinkerman testified that there is a low probability that appellant is a risk to reoffend “in a prison setting.” Q. [DEFENSE]: And what did you use to reach that conclusion, [sic]. A. [PINKERMAN]: Her presentation in the interview, the history that I had before me, her description of the history, the psychological testings like I’d done with her in my formal psychological evaluation, and then the large body of literature both in the psychological literature and in the State Department of Corrections literature that talks about the different levels of risk for offenders within a prison population. Because when I’m looking at the risks, I’m not considering getting the parameters of the present circumstances any issue of risk to the community. That is often not a part of my assessment. Q. And your opinion then, sir, is what? A. Her risk — there’s—okay. I’ll try to just answer your question. There’s a low probability that she’s a risk to reof-fend— Q. Okay. A. —in a prison setting. During its initial closing jury arguments, the State emphasized the “horrific” circumstances of this offense, appellant’s “history” of violence against Mariah, and appellant’s misbehavior in the county jail in arguing that “[tjhis isn’t going to end with Mariah. This is going to continue.” [STATE]: The defense argued at the beginning of this trial that Mariah died of injury to the child. She was beaten. Now, the first expert told you that the defendant — there is no history of aggression at all. She’s obviously wrong. That’s not what the defense told you. That’s not what the [police] video shows. And she demonstrates on that video how she hit that little girl time and time again. There is history of aggression. Mariah’s death is proof of that. What can you conclude from the first expert’s testimony? She is simply wrong. She got it wrong. The next expert tells you: No history of violence. Again, remember what [appellant’s lawyer] told you? She’s guilty of injury to a child. She’s guilty of beating that little girl. Well, obviously this expert got it wrong, too. * * * What can you conclude? Look at Mari-ah. You’ve seen the photographs. No history of violence? Really? Are we talking about the same person, the same defendant? They got it wrong. I want to talk to you about Mariah and the nature of this crime against her. Because we’ve all seen the photographs. We heard from Dr. Vargas who told us it’s the worst he’s ever seen in his 30 years. Dr. Farley told us the same thing. Worst case of child abuse ever in our community. Look at this little girl. Look at her. She was defenseless, innocent. Her daughter. The nature of this crime speaks for itself. She was beaten to death. This is not one time. Deliberate acts, over, and over, on this poor little girl. This is a crime of hatred. A crime of violence. Not just one time. Not an accident. The manner of death of which this little girl died is also tragic. It’s also horrific. There’s many of you on this jury that work in the medical field and can understand the suffering that she endured from her little brain swelling. Dr. Farley told you that brain swelling inside her head, went into her spinal cavity, she would have suffered. She would have trouble breathing. She would have seizures and just lay there. She let her lay there and suffer. A very painful cruel death. That is what is so horrific about this case, that this little girl laid there in that bed when she could have simply called for help, taken her to the doctor, done something to protect this little girl. The manner of death in this case is so horrific because she suffered for so long, this little baby girl. It was simply torture and cruel. * * * And I want you to look at her jail record because this jail record speaks to you about the type of person that she is. And in the short time that she’s been in jail she has had physical altercations, verbal altercations, been in possession of contraband, unauthorized communication, inciting a riot, and confrontational towards the staff. What does that tell you about the type of person that she is now? And that’s only here in our jail. Imagine what she’s going to be like when she gets to Huntsville or wherever she ends up. Look at these records, because they records [sic] speak for themselves. This defendant is like a dog that bites a human person. Once that dog bites, they will always have — there will always be a probability that it will bite again. Same thing with this defendant. Her record speaks to you: This isn’t going to end here. This isn’t going to end with Mariah. This is going to continue. The defense argued during its closing jury arguments that the State did not present “one scintilla of evidence as to future dangerousness.” [DEFENSE]: The first question has to do with future dangerousness. What have we heard one scintilla of evidence as to future dangerousness of this person? We had the guy, Mr. Merrillet, or whatever his name was, from Conroe. If you take his own statistics, he never spoke about Melissa specifically. Never once did he talk about her. In fact, he came up here and told you, I’m not going to talk about her. I don’t know her life. So he gives statistics. What are the statistics he gave us about the future dangerousness of criminals in general? He told us there are 12,000 female inmates in the Texas Department of Corrections as of 2007. That’s 12,000. How many assaults were there in that population? Seventeen. That is one one-hundredth of a percent. What else do they bring you here? They bring you the jail records. This is one thing where I agree with the State. Please, look at Melissa’s jail records. Look at them. They bring to you that she was in a dorm with eight people and they found tattooing equipment above the lights. None of the girls would admit to having been the owner of it. So that is evidence of future dangerousness? Oh, but she was in a fight. Look at the fight. You all look at them. I saw you all looking at the records. She got in blocked punches in one of the fights. The other one, the girl hit her. Please. There’s not a scintilla of evidence of future dangerousness, much less beyond a reasonable doubt. What else do they bring here of future dangerousness? To answer question number one, she’s got a past history, a criminal history. What was that? A DWI. If we poll the people in this courtroom today sitting here, throughout this courtroom there would be a good number of folks who’ve gotten a DWI. It doesn’t mean that they are a future danger. What didn’t they show you? They didn’t show you one past act of physical abuse to any children. Not one. They didn’t show you one past act where she’s ever been charged with a crime involving any physical harm to anyone else. Is there a probability of continuing acts of violence? Probably not. We’ve heard that from the State’s main person who they bring down because just from the statistics, there’s no probability. We heard it from Dr. Pinkerman who also said there’s very little probability that she would ever do anything of violence. During its final closing jury arguments, the State emphasized appellant’s behavior in the county jail and her abuse of Mariah over a period of time in support of its argument that appellant “has already shown a tendency to be violent ... to be abusive, to be aggressive and to injure innocent people.” [STATE]: This wasn’t an isolated incident where she lost it and she killed this child. She made this child suffer. Every time she injured this child she had to have gotten some pleasure from it because she didn’t do it one time. She did it over a period of weeks and probably months. Is this a person that you want out there in a society of prisoners? She has already shown a tendency to be violent, ladies and gentlemen, to be abusive, to be aggressive and to injure innocent people. She’s just as likely to go after the innocent — other innocent individuals, people that may be within the prison system. Because Mr. Merrillet has told you that they don’t classify them by capital murder. They can put him [sic] in with a burglar, with somebody who’s writing hot checks. She can victimize other individuals. Try to marginalize her behavior in jail now. That’s what we’re being accused of. We’ve looked at the little things to show a consistent pattern. Even now when she’s caught in jail, awaiting trial, whatever rules she can still break, she’s still breaking them. Her own people say, she has a history of that. She’s not going to change her stripes. Is she going to do that automatically because you spared her? No. She’s never going to changer her stripes. In point of error two, appellant claims that she is entitled to a new trial under Texas Rule of Appellate Procedure 34.6(f)(4) because the “audio of the defendant’s statement to the police is inaudible.” See id. (setting out when an appellant is entitled to a new trial when a reporter’s record is lost or destroyed). Appellant argues, The audio of the defendant’s statement to the police is inaudible. Counsel objected at trial. The reporter said the audio was inaudible. The trial judge included the discs in the record. Appellant timely requested a reporter’s record. Appellant moved the Court of Criminal Appeals to direct the reporter to transcribe the audio on the videodiscs of defendant’s statement to the police; the Court denied the motion. The inaudible portion is significant, since it is the audio of the defendant’s statement. The audio is necessary to the appeal’s resolution; appellant maintains that the evidence is both legally and factually insufficient to sustain the verdict of guilty and that it is both legally and factually insufficient to sustain the “Yes” response to the query re future dangerousness, resulting in a penalty of death. Counsel cannot agree on any statement of the audio. Tex.R.App.P. 34.6(f). The State responds “that the present situation is not one in which anything has been lost; instead, this is a situation where the evidence is what it is; an audio recording which does require some effort to hear, but is nevertheless audible.” The State argues that Rule 34.6(f) does not apply here because “there is nothing missing from the Reporter’s Record — the same recordings of Appellant’s statement which were introduced as State’s exhibits 3, 4, and 5 at trial, are the same recordings which have been copied and included in the Reporter’s Record as exhibits 3, 4, and 5.” We agree. Appellant’s claim that certain portions of the audio of appellant’s recorded statement to the police are inaudible does not mean that these portions of the court reporter’s record are “lost or destroyed” for purposes of Rule 34.6(f). There is nothing missing from the reporter’s record. Point of error two is overruled. In point of error three, appellant claims that the trial court erred to admit her recorded statement into evidence. Appellant argues, The trial court erred in admitting the videodisc of Ms. Lucio’s statement. Her statement was involuntary. The state’s own witness said Ms. Lucio was “brought” to the station by the police. There was no warrant. There was no probable cause. There was no probable cause plus the defendant’s being about to escape. A reasonable person would not have felt free to leave after having been “brought” to the police station by the police. There was no testimony that she understood her rights before she gave the statement. The trial court’s finding that the statement was voluntary was unjustified in the light of the evidence that Ms. Lucio was “brought” to the police station by the police, was never taken before a judge, and was interrogated for hours. We cannot tell from the audio of the video that the police gave Ms. Lucio the required Miranda and Tex.Code Crim.P. warnings. We cannot tell because the court reporter did not transcribe the audio because he could not hear it. A person “brought” to the police station by the police and interrogated at the police station by the police would not have felt free to leave. With a presumptively illegal arrest made without a warrant, no evidence of being about to escape, the defendant being “brought” to the station by the police, and no evidence on the tape that there were any warnings given, much less the required Miranda and Tex.Code Crim.P. warnings, the trial court abused its discretion in admitting the defendant’s statement. The record reflects that the State introduced appellant’s recorded statement through Detective Cruz. Appellant’s only non-general, specific objection to the admissibility of her recorded statement was that “all voices on the recording” were not identified. [DEFENSE]: I’m going to object to these [State’s exhibits 3, 4, and 5] coming in because they don’t comply with the statute. 3822 requires all voices on the recording be identified, and they’re not. There are people that are walking in and out. People are yelling things, talking— and they’re not identified. They are not even shown — some of them. And — according to — 3822, they got to be — it’s got to be in compliance. [TRIAL COURT]: But my main concern is whether or not the recording in and of itself shows that it’s voluntary. After it’s voluntary, then the other concern is whether or not the voices can be identified. Whether they are included within the copy of the statement, or not, is a separate issue. So, I’m going to look at the first part of the recording ■with regard to the voluntariness of it— (Videotape Played with Officer Cruz interviewing the defendant and stopped at 10:37 a.m.) [TRIAL COURT]: Put it on pause, just a minute. Mrs. Cruz there was a voice there. Can you identify that voice? [CRUZ]: That’s Detective J.M. Salinas. [TRIAL COURT]: Okay. And as we proceed throughout the interview, you will be able to identify each and every voice? [CRUZ]: Yes. [TRIAL COURT]: Okay. Thank you. Proceed. (Video 1 [State’s exhibit 3] continues to Play and paused at 10:40 a.m) [TRIAL COURT]: Mr. Padilla, would you stop it please? It appears to me that [appellant] understood her rights, and that it was voluntary. So, unless you have any evidence to show any duress, or anything like that, I’m going to allow it to be played to the jury. [DEFENSE]: All right. Note my exception. Even though I don’t think it’s in compliance with the statute. On this record, we decide that appellant’s objection that not all voices on the recording could be identified failed to preserve any voluntariness, lack-of-warning, or illegal-arrest claims relating to the admissibility of her recorded statement. We further note that a listener can clearly hear on State’s Exhibit 3 appellant being informed of her Miranda rights and appellant stating that she understood them, and see appellant signing a “waiver” of these rights before the police began to question her. Appellant’s subsequent course of conduct is also consistent with a waiver of these rights. See Joseph v. State, 309 S.W.3d 20, 24-26 (Tex.Crim.App.2009) (stating that, in absence of express and explicit waiver of Miranda rights, the 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 understood those rights, a course of conduct consistent with waiver ‘may’ support the conclusion that he suspect has waived his Miranda rights.”). In addition, after having thoroughly reviewed appellant’s recorded statement, we decide that it supports the trial court’s finding that it was voluntary. Appellant’s recorded statement fairly reflects 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) (explaining that the 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). We further note that appellant has not cited to any portions of her recorded statement where she claims that the police used improper interrogation techniques. Point of error three is overruled. In point of error six, appellant claims that the evidence is legally insufficient to support her conviction. The jury charge, consistent with the indictment’s allegations, authorized the jury to convict appellant if, among other things, it found that appellant caused Mariah’s death “by striking, shaking, or throwing Mariah Alvarez with defendant’s hand or foot or other object unknown to the Grand Jury.” In determining whether the evidence is legally sufficient to support a conviction, a reviewing court must consider all of the evidence in the light most favorable to the verdict and determine whether, based on that evidence and reasonable inferences therefrom, a rational fact finder could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Hooper v. State, 214 S.W.3d 9, 13 (Tex.Crim.App.2007). This “familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Jackson, 443 U.S. at 319, 99 S.Ct. 2781. “Each fact need not point directly and independently to the guilt of the appellant, as long as the cumulative force of all the incriminating circumstances is sufficient to support the conviction.” Hooper, 214 S.W.3d at 13. Appellant argues that the evidence is legally insufficient to support her conviction because it does not show that appellant “admitted anything more than striking the child at some time, does not show that Ms. Lucio was the one who used the blunt force head trauma, and does not show that Ms. Lucio had exclusive access to the child during the time-period during which the autopsy doctor said the blunt force was stricken.” Appellant also argues that her statement to her sister during their cellphone conversation that “I did it” is “too vague to amount to proof of a crime, much less this offense.” The State argues that a “jury could have reasonably concluded that Appellant was responsible for delivering the fatal blow to ... [Mariah’s] head, as she had the opportunity to do so, and she had admitted to a pattern of abuse that had continued for some two months.” The evidence in this case shows that appellant had the opportunity to inflict Mariah’s fatal injuries as she was Mariah’s primary care-giver when these injuries were inflicted. Appellant told the police several times that only she would “spank” or “hit” Mariah. Appellant also stated to the police several times that neither Alvarez nor any of the other children hit Mari-ah. The jury also saw pictures of the numerous bruises on Mariah for which appellant took sole responsibility. A jury could reasonably infer from this evidence, including appellant’s pattern of abuse of Mariah, that appellant caused Mariah’s fatal injuries. A jury could also reasonably infer that appellant was referring to Mari-ah’s fatal injuries when she told her sister during their cell-phone conversation that she “did it.” We decide that “the cumulative force of all the incriminating circumstances is sufficient to support the conviction.” See Hooper, 214 S.W.3d at 13. Point of error six is overruled. In point of error seven, appellant argues that the evidence is factually insufficient to support her conviction. We do not review the factual sufficiency of the evidence to support a jury’s finding on the elements of a criminal offense that the State is required to prove beyond a reasonable doubt. Martinez v. State, 327 S.W.3d 727, 730 (Tex.Crim.App.2010); Brooks v. State, 323 S.W.3d 893, 895 (Tex.Crim.App.2010) (plurality op.) and at 926 (Cochran, J., concurring, joined by Wom-ack, J.). Point of error seven is overruled. In point of error eleven, appellant claims that the trial court erred “in overruling the defense objection that the proposed instruction did not include a lesser included offense of injury to a child.” The indictment in this case alleged that appellant “did then and there intentionally or knowingly cause” Mariah’s death. The trial court refused to submit appellant’s proposed written jury instruction that would have permitted the jury to convict appellant of injury to a child upon finding that appellant “did then and there cause serious bodily injury” to Mariah. The trial court appeared to rule that there was no evidence to show that if appellant is guilty, “she’s only guilty of the lesser offense” because the evidence showed an intentional striking resulting in death. The trial court’s ruling left the jury with the option of convicting appellant of capital murder or of acquitting her. Appellant’s brief sets out portions of the charge conference during which the parties and the trial court discussed whether appellant was entitled to an injury-to-a-child jury instruction. Appellant’s brief also asserts that the “defense preserved error by submitting a proposed instruction on injury to a child as a lesser included offense.” Appellant’s brief further asserts, Injury to a child is a lesser included offense of capital murder. In re L.M., 993 S.W.2d 276, 283 (Tex.App.-Austin 1999, pet. denied). There was some evidence that Melissa said she hit the child. The evidence does not say when she did that. The autopsy doctor said that the fatal blow was struck [sic] within 24 hours of death. Appellant’s brief cites to portions of the record supporting these factual assertions. Appellant’s brief then concludes by stating, The error was not harmless beyond a reasonable doubt. Had the lesser offense been submitted, the jury might have found Ms. Lucio guilty of the lesser offense. Injury to a child is not a capital offense. Tex.Pen.Code § 22.04(e) <& ffi. Appellant’s brief contains no argument or citation to any authority that might support an argument that if she is guilty, she is guilty only of injury to a child. See Hall, 225 S.W.3d at 536 (stating that the second step of the lesser-included-offense analysis requires a determination of whether “there is some evidence in the record that would permit a jury rationally to find that if the defendant is guilty, [s]he is guilty only of the lesser-included offense” (internal quotes omitted)). We decide that this point of error is inadequately briefed and presents nothing for review as this Court is under no obligation to make appellant’s arguments for her. See Tex.R.App. P. 38.1(i); Busby v. State, 253 S.W.3d 661, 673 (Tex.Crim.App.2008) (affirming that this Court has no obligation “to construct and compose” a party’s “issues, facts, and arguments with appropriate citations to authorities and to the record” (internal quotes omitted)); Cardenas v. State, 30 S.W.3d 384, 393-94 (Tex.Crim.App.2000) (deciding in a capital case that the defendant’s points, complaining of the lack of a jury instruction on the voluntariness of the defendant’s statements to the police, were inadequately briefed “by neglecting to present argument and authorities” in support of them). Point of error eleven is overruled. In point of error nine, appellant claims that the trial court abused its discretion “in overruling the tender of Ms. Villanueva as an expert witness at guilt innocence.” Appellant argues, The trial court erred in excluding beneficial defensive testimony, Norma Villa-nueva’s testimony about how being a battered woman affects one’s ability to give or not give a voluntary statement. This testimony was not admitted at the innocent/guilt stage. The Court will note Ms. Villanueva’s [punishment-phase] testimony at (RR 37/216-18). The defense summarized that testimony in the bill of exceptions at guilt/innocence. (RR 35 145) The Court now should consider the importance of such testimony on the voluntariness of her statement and should order a new trial. The error was not harmless beyond a reasonable doubt because the jury needed this information to decide if Ms. Lucio’s statement was voluntary or not. The judge told them that they were to disregard her statements unless they were convinced beyond a reasonable doubt that the statements were voluntary. Had the jury had Norma Villarreal’s [sic] testimony at guilt/innocence, they would have had a reasonable doubt about the voluntariness of the statements, would have disregarded them, and would not have been left with enough evidence rationally to find guilt beyond a reasonable doubt. Had Ms. Villanueva’s testimony been admitted at the guilt innocence phase of the trial, the jury could have used it to decide whether the battered woman voluntarily gave the statement at the station to the police. The judge excluded it. Trial counsel made a bill of exceptions. The essence of her testimony is that Melissa was a battered woman and would have and did tell the police whatever they wanted her to say. We, therefore, understand appellant to claim that the trial court erroneously excluded Villanueva’s proposed testimony at the guilt phase that appellant’s being a battered woman affected her ability to voluntarily give a statement to the police, which the jury could have used in determining that appellant’s statement to the police was involuntary as a matter of state law. See Oursbourn v. State, 259 S.W.3d 159, 169-76 (Tex.Crim.App.2008) (discussing that involuntariness claims under state law “can be, but need not be, predicated on police overreaching, and they could involve the ‘sweeping inquiries into the state of mind of a criminal defendant who has confessed’ ” which, armed with a proper “vol-untariness” instruction, a jury is entitled to consider). The record reflects that Villa-nueva is a clinical social worker with “a master’s degree in social work” and “the highest national clinical license to allow [her] to do diagnosis and treatment of mental health disorders.” During a hearing on the admissibility of Villanueva’s proposed guilt-phase testimony, appellant proffered Villanueva as an expert to explain “why, in fact, [appellant] would have given police officer’s [sic] information in that [recorded] statement that was not correct.” [TRIAL COURT]: — and on the case in chief, I am having a hard time understanding how you can get that in. [DEFENSE]: Well, we have heard also testimony from the Texas Ranger, that he could walk into a room and could tell by “body language” that my client wanted to make a statement. And Norma Villanueva is going to be talking about the body language of Melissa during her video statement. She’s also going to be talking about the — what’s happened to her and the authorities with Child Protective Services and how that has a bearing on Melissa Lucio. [TRIAL COURT]: And I understand that with regard to punishment in terms of factors that are in litigation, I am having a hard time understanding how it affects the case in chief as to guilt or innocence. [DEFENSE]: Judge, it goes to whether or not she — what type of personality she has. Is she an aggressive person? Is she a nonaggressive person? Whether or not she admits to things that she didn’t do or did do? Whether she says one thing to men, and another to women? This is what she is going to be testifying to. [TRIAL COURT]: How does that go as to body language? [DEFENSE]: Judge, she has seen the video. [TRIAL COURT]: I understand. [DEFENSE]: And she has reviewed the records, and with that— [TRIAL COURT]: What kind of education and/or training does she have to interpret that? [DEFENSE]: The same amount— [TRIAL COURT]: Hold on. Just a minute. I’m sorry. With regards to the factors of mitigation, I don’t think there is any question that Mrs. Villanueva is overly qualified to testify as to that. With regards to the issue of guilt or innocence, I am having a hard time trying to figure that out. So I welcome any consideration because I do not see how Mrs. Villanueva is going to talk about things — I mean, unless she has personal knowledge of something with regards to the facts, how is she— * * * [DEFENSE]: Mrs. Villanueva is here to testify as to why, in fact, she would have given police officer’s [sic] information in that statement that was not correct, and she’s going to base that testimony on the information that she has seen from the social— Villanueva also testified at the admissibility hearing. See Tex.R. Evid. 103(b) (providing for an offer of proof “in question and answer form”). After testifying to her training “that helps [her] in dealing •with people and what they are trying to convey” by their body language, Villanueva testified on direct examination by the defense that “[s]everal patterns of [appellant’s] behavior have emerged” based on an examination of CPS documents “especially from '04 to the present.” The State’s cross-examination of Villa-nueva established that Villanueva apparently intended to provide some guilt-phase testimony about appellant’s body language during her recorded statement. Q. [STATE]: And as you’re testifying as a mental health expert, you can sit there and look at a person just by the demeanor in the face or their body demeanor, that person is either telling you the truth, or not telling you the truth? A. [VILLANUEVA]: Oh, no, sir, I didn’t say that. What I’m saying, is, that it has to be a combination of factors. When you’re judging somebody’s behaviors, especially when it has to do with body language, if you do it solely on the basis-for example, if all I had done was just watch that videotape testimony, or excuse me, statement, then I shouldn’t be sitting up here. But you interview the person. You look at their background. You look at their interactions with other figures of authority. You put the whole pool of information together because you cannot know a person based on watching one DVD, or as an investigator by having them with you in that one instance, which is an instance of duress. You have to look at them across a life span. Villanueva expanded on her proposed guilt-phase testimony upon further questioning by the defense. Q. [DEFENSE]: And if you are allowed to testify in this particular case, you are going to testify as to what? A. I was going to testify about three separate issues. The first issue was about patterns of behavior with Mrs. Lucio which strongly influenced her behavior during that videotaped statement process with the investigators that night. Q. That video statement that is in evidence in this case? A. That is correct. In support of that, I was also going to testify that the patterns of behavior as seen in the Child Protective Services records, the patterns in her family, how that influenced her decision making and how she felt with the different investigators, male and female, and also how she makes her life decisions. It influenced her behavior in that — how she felt with the different investigators male and female and how she made her decisions in answering the questions during that process. And lastly, looking at her CPS history, how— and also her social history, how she deals with different people in levels of authority, and also how that influenced her body language, and how body language is interpreted in different ways if you do not have her history of behavi-ours [sic] or patterns of behavior or her social history. In excluding Villanueva’s proposed guilt-phase testimony, the trial court “did not find [Villanueva] to be an expert on whether or not [appellant’s] statement was true or not true, manufactured — factored, or whatever.” Appellant responded by questioning Texas Ranger Escalon’s expertise when he testified about his observations of appellant’s body language during her recorded statement. [DEFENSE]: Judge, the State brings in a Texas Ranger and he says: Well, body language tells me this. And, body language tells me that. What expertise did he have, if any? [STATE]: He could have asked him that, Your Honor. He was there on the witness stand and was subject to cross examination. [TRIAL COURT]: What you are asking to do is to give evidence from a person holding themselves out as an expert as to why that statement is or is not true or what was produced. Again, I think, Mrs. Villanueva, is imminently qualified on the issue of mitigation. But, you know, I am familiar with clinical social workers. It is not very clear from the record exactly what Villanueva’s guilt-phase testimony before the jury would have been, how that testimony would have been relevant to the voluntariness of appellant’s recorded statement to the police, or upon what theory of admissibility trial counsel or appellate counsel relies. It is not clear whether the witness was going to testify about the truthfulness of her statement to the police as proposed by trial counsel, whether she was going to testify about the effects of being a battered woman and her ability to tell the police whatever they wanted her to say, as claimed by appellate counsel, or whether she was going to testify about body language and patterns of behavior as actually stated by the witness in the admissibility hearing. Therefore, appellant’s claim on appeal as to what Villanueva’s testimony would have been does not comport with Villanueva’s proffered testimony at trial. See Dixon v. State, 2 S.W.3d 263, 265 (Tex.Crim.App.1998) (noting that, to preserve error for appellate review, the point of error on appeal must comport with the objection at trial). On this record, we decide that appellant failed to preserve the claim that she raises on appeal. We also believe that Villanueva’s guilt-phase testimony that was actually proffered had little, if any, relevance to a jury’s voluntariness determination under state law. See Oursbourn, 259 S.W.3d at 172-73 (“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 his 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). We, therefore, cannot conclude that the trial court abused its discretion to exclude Villanueva’s proposed guilt-phase testimony for “voluntariness” purposes. We further decide that any error in excluding this evidence, which, at best, may have been marginally relevant to the issue of the voluntariness of appellant’s recorded statement, was harmless. See Tex.R.App. P. 44.2(b) (providing that appellate courts must disregard non-constitutional errors that do not affect substantial rights). Point of error nine is overruled. In point of error ten, appellant claims that the trial court “erred in excluding beneficial defensive testimony, Dr. Pinkerman’s testimony that since she was an abused woman she would agree with anything a policeman would say.” The record reflects that the trial court would not permit Dr. Pinkerman, who is a clinical psychologist, to testify at the guilt phase. Appellant represented to the trial court that Pinkerman would provide the following guilt-phase testimony: [DEFENSE]: Part of his testimony is that Mrs. Lucio has all of the signs of being a battered woman. And as a battered woman, she takes blame for everything that goes on in the family. And if dealing with a male figure such as a husband she doesn’t find fault with anything that a husband does, she takes the blame for it. She takes the blame for everything that goes on in the house. We believe that the record reflects that Pinkerman was not, as appellant claims on appeal, offering any guilt-phase testimony that, “since she was an abused woman [appellant] would agree with anything a policeman would say.” Dr. Pinkerman actually testified that he intended to provide the following guilt-phase testimony: Q. [DEFENSE]: And your testimony during the guilt and innocence stage would