Jenkins v. State (493 S.W.3d 583, 2016)

OPINION

Richardson, J.,

delivered the opinion of the Court

in which Keller, P.J., Meyers, Johnson, Keasler, Hervey, and Yeary, JJ., joined.

In June 2013, a jury convicted appellant of capital murder for committing the offense of murder in the course of aggravated rape in November 1975. Based upon the jury’s answers to the special issues set forth in Texas Code of Criminal Procedure Article 37.0711, sections 3(b) and 3(e), the trial judge sentenced appellant to death. Direct appeal to this Court, is automatic. Appellant raises nineteen points of error. After reviewing appellant’s points of error, this Court finds them to be without merit. Consequently, we affirm the trial court’s judgment.

STATEMENT OF FACTS

' The trial record reflects that the victim-, Sheryl’Norris, moved to-'San Marcos, Texas, from Florida in late August or early September of 1975. Her boyfriend, Charles Wayne Andrus, had moved to San Marcos 'earlier in the summer to attend Southwest Texas'State-University, Their mutual friend, Joe Sewell, shared an apartment with Andrus during the summer, but after Norris arrived, Sewell moved out, and Norris moved into the apartment. Norris found employment as-a secretary at the Crime Prevention Institute,-which was part of Southwest Texas State University’s Department of Law Enforcement.

On November 24, 1975, the Monday before Thanksgiving, Norris arrived at work around 8:00 a,m. She planned to travel to Florida later that week to spend Thanksgiving with her family. She requested and received permission from her supervisor, Fred Stansbury, to take the afternoon off to pack for her trip. The office routinely closed - at noon, and the employees would leave the premises until the office reopened at 1:00 p.m. At noon, Norris went home for lunch, as she did on most days. Andrus, who was studying on campus, telephoned Norris at .their apartment two times between noon and 1:00 p.m. because he and. Norris usually talked - over the phone during Norris’ lunch, break, but no one. answered.

When Norris did not return to work in the afternoon, Stansbury assumed that she had stayed home -to pack for her trip. Andrus returned home around 5:05 p.m. to find the front- door -ajar and the music .on the stereo turned -up to an- “almost deafening level.” As he entered the-apartment, he noticed that a throw rug by the front door was crumpled, He turned down the stereo and walked through the apartment, calling for Norris. He saw her when he turned on the bathroom' light. At first he thought-she. had fallen, and he grabbed her arm to help her. He felt that her arm was stiff and cold, and then he saw that her pants were down. He believed that she was dead. Afraid that Norris’ killer was still in the apartment, Andrus ran to a neighbor’s apartment and telephoned the police.

Around 6:00 p.m., Norris’ supervisor Stansbury received a call at home from the San Marcos Police Department, requesting that he identify one of his employees in a homicide they were investigating. When he arrived at Norris’ apartment, police investigators and a Texas Ranger were already inside. He identified Norris’ body and then answered the Ranger’s questions about Norris’ schedule and plans for that day.

The Texas Department of Public Safety (“DPS”) assisted with the investigation. Three specialists from the DPS lab in Austin — a serology trace evidence analyst, a fingerprint ■ examiner, • and a photographer — arrived at Norris’ apartment around 8:00 p.m. Ron Urbanovsky, the serology trace evidence analyst, observed that the apartment was generally tidy, but the throw rug by the front door was crumpled. He saw coins scattered on the floor near the front door and elsewhere in the apartment, and a folded dollar bill on the floor near the foot of the bed in the master bedroom. Urbanovsky believed that the placement of these items could indicate that a struggle had occurred. In the master bedroom, Urbanovsky observed fecal material on a green blanket on the bed. He also saw feces on the side of the bed and on the floor leading from the bed to the adjoining bathroom. He noted that the bed was a “strange place to find fecal material,” and that it suggested that “somebody was losing control.” There was a dent in the sheet rock next to a light switch. Urbanovsky later determined that the damaged sheet rock material was consistent with white powdered material on the toe of one of Norris’ boots, which suggested that Norris had kicked the wall during a struggle.

Urbanovsky observed blood on the bathroom door and the doorjamb. Inside the bathroom, Norris’ body was “bent over backward.” Her head and shoulders were under water in the bathtub, and her back was arched over the side of the bathtub. Her arms were bent- at the elbow so that her wrists and hands were in the water. The rest of her body was outside of the bathtub, with her buttocks and feet propped on the floor.

Norris was wearing a wristwatch, which was submerged. It had stopped at 12:31. The water was almost to the top of the bathtub and it was discolored. Two scarves or ties were knotted tightly around Norris’ neck. Norris was wearing knee-high boots and a long-sleeved white blouse. Her trousers had been pushed down around one of her boots.

As responders lifted Norris’ body onto a gurney, Urbanovsky observed “a lot of blood” and fecal material in the area of Norris’ genitals and buttocks. There was also fecal material on the bathroom floor underneath Norris’ body. Based on his observations, Urbanovsky “thought [they] were looking at a rape/murder.”

Norris’ body was transported to a local funeral home. Dr. Charles Bell conducted an autopsy that night, with Urbanovsky and the DPS photographer in attendance. In the area where the ligatures were tied around Norris’ neck, Bell and Urbanovsky observed abrasions that suggested .strangulation. Bell noted the presence of water in Norris’ lungs. He collected blood,, fingernail clippings, and hair samples from Norris’ body. He swabbed Norris’ vagina and smeared the vaginal sample onto a slide, which he viewed under a microscope. Bell identified intact spermatozoa in the vaginal sample and placed the slide into a glass jar, which he gave to Urbanovsky. After the- autopsy, Urbanovsky and the other DPS specialists drove to the DPS lab in Austin, where they logged and stored the materials they had collected. Urba-novsky placed the jar containing the slide into the freezer.

Urbanovsky later viewed the slide through a microscope and confirmed the presence of spermatozoa. He created a second slide from the vaginal sample so that he could analyze the material while preserving most of the original sample. Urbanovsky analyzed a small part of the sample to obtain an ABO blood grouping of potential contributors. He also obtained Norris’, Andrus’, and Sewell’s ABO blood groupings and compared them to the ABO blood grouping he obtained from the sample.

Urbanovsky testified at trial that: Norris had type B blood and was a secreter, meaning that her blood group substances included B and H; Andrus had typé 0 blood and was a secreter, meaning his blood group substances included O and H; and Sewell had type A blood and was a secreter, meaning his blood group substances included A and H. The ABO'blood grouping obtained from the vaginal sample included blood group substances B and H. This result included Norris as a contributor and excluded Sewell. Urbanovsky noted that his conclusion concerning' Andrus was less certain; if a contributor to the sample had been a secreter with type 0 blood (like Andrus), the analysis would not detect the blood group substance 0, but one would still expect it to detect the H. Further, the ABO blood grouping analysis would not detect the blood group substances of a non-secreter, and therefore Urbanovsky could not draw any conclusions concerning the possibility of an unknown contributor who was a non-secreter.

Urbanovsky also used a microscope to examine a hair fragment found under Norris’ fingernails. He determined that the hair fragment did not belong to Norris, Andrus, or Sewell. He also examined hairs that he had collected from the crime scene. Some were consistent with Andrus and Sewell, but since both men had lived in the apartment, Urbanovsky could not draw any conclusions from this finding. These results were all that Urbanovsky could obtain from available forensic testing in. 1975.

Law enforcement officers investigated several potential suspects, but by the late 1970s, the case was inactive. ■ In April 1996, Norris’ sister, Terry- Ehart, called the San Marcos Police Department to inquire about the status of the case. Her call prompted police investigators to reexamine the file. After reviewing the case file with other investigators, Sergeant Penny Dunn consulted Javier Flores, a DNA analyst at.the DPS lab in Austin, about conducting DNA analysis on some of the materials that had been collected in 1975. Flores conducted the analysis. He took two swabs from the original vaginal smear and froze them. He preserved one swab, which was still in the lab’s freezer at the time of the trial. He extracted .a liquid from the second swab for further testing. Flores and later DNA analysts used .this liquid extract in their analyses of the vaginal sample. Flores analyzed a small part of the extract in 1997, using PCR technology. With the results of this DNA analysis, Flores was able to exclude Andrus as a contributor, but he was not able to obtain a DNA profile that was sufficient to help identify other potential contributors.

In 1999, Cassie Carradine, another DNA analyst at the DPS’ lab, conducted STR testing on a portion of the extract and obtained a partial DNA profile. This profile provided more information than the 1997 analysis, but it was not sufficient to upload into the CODIS database. However, by comparing the partial DNA profile to individual known DNA profiles, investigators excluded as contributors Andrus and several other potential suspects.

In 2010, the DPS lab acquired the ability to “run,” or analyze by using, the'“Minifi-ler;” a more sensitive and discriminating DNA profiling technique that was suitable for analyzing small and degraded biological samples. Analyst Negin Kuhlmann ran a portion of the liquid extract through the' Minifiler and obtained a full DNA profile. DPS uploaded this profile into CO-DIS.' Approximately a month later, DPS obtained a “hit,” or match with an existing profile, from CODIS and identified appellant, who was then in California. This identification ’marked the first appearance of appellant’s name during the investigation' of the case. When Dunn showed Andrus a picture of appellant, Andrus stated that he had never seen that person before.

Sergeant Dunn traveled to California and obtained a buccal swab from appellant, which she submitted to the DPS lab. Kuhlmann analyzed this buccal swab to create a known DNA profile from appellant that, could be compared with the DNA profile she had obtained from the extract. Kuhlmann compared the profiles and determined that appellant was included as a contributor to the profile she had obtained from the liquid extract. She prepared a report in which she noted that “the probability of selecting an unrelated person at random” who could be a contributor to the DNA profile obtained from the vaginal sample was approximately 1 in 365.6 quadrillion for Caucasians; 1 in 5.705 quadrillion for Blacks; and 1 in 20.37 quintillion for Hispanics. Kuhlmann testified that, at the time she wrote her report, the. population of the world was about 6.8 billion.

While searching for other evidence that might be appropriate for DNA analysis, Dunn discovered a yellowed hand print on Norris’ white blouse. Kuhlmann made an extract from a cutting on the blouse and was , able to obtain a full DNA profile, which she compared with appellant’s known DNA profile. Appellant could not be excluded as a contributor to the profile obtained from the blouse. Kuhlmann noted in her report that the probability of selecting an unrelated person at random who could be a contributor to the DNA profile obtained from this extract was approximately 1 in 457.9 trillion for Caucasians; 1 in 44.68 trillion for Blacks; and 1 in 8.977 quadrillion for Hispanics.

Dunn investigated appellant’s background and discovered that he had grown up in Marion, Texas, which is about an hour’s drive from San Marcos. After appellant graduated from high school in Marion, he attended Southwest Texas State University for one semester before he joined the United States Marine Corps. Appellant served in the Marines from 1973 to 1976. In 1975, he was stationed at, a military base in California. From November 23, 1975, to December 5, 1975, appellant was on emergency leave while his wife was hospitalized in San Antonio, Texas. During this two-week period, appellant stayed at his father-in-law’s house in Marion.

By the time of the trial, Dr. Bell, who had performed Norris’ autopsy, was deceased. Therefore, Dr. Jeffrey Barnard testified about the autopsy results. Based on his review of the autopsy report, crime scene photos, and autopsy photos, Barnard opined that Norris died from homicide by strangulation arid drowning. He noted that the ligatures around Norris’ neck, together with the abrasions and hemorrhages in that area, were consistent with strangulation. “Punctuate hernorrhages” or petechia on the lower back of Norris’ head and the suffusion of blood vessels in Norris’ face were consistent with' compression of the blood supply. Barnard testified that strangulation by impeding blood flow would take several minutes'. If arterial blood flow to the brain were continuously impeded, it would take 10 to 15 seconds for the victim to lose consciousness. After that, the blood flow would have to be shut off continuously for a few more minutes before death would result. Barnard stated that bubbles around Norris’ mouth and nose, visible in both the crime scene and autopsy photos, were indicative of drowning. Drowning would take several minutes of continual submersion.

Barnard testified that he observed some skin slippage arid signs of decomposition that indicated that Norris’ body had been submerged in warm water for at least four and one-half hours before it- was photographed at the crime scene. Barnard observed “soriie hemorrhage as well as some feces visible” in the vaginal and anal areas. He stated that this evidence, as well as the state of uridress and the positioning o’f Norris’ body, were consistent with sexual assault. Barnard opined that, in light of everything he had seen, this was a strangulation attendant to a sexual assault: “The fact that she’s in the bathtub* and part of her clothes are off and she’s had, in my opinion, strangulation, those all go together.”

PUNISHMENT EVIDENCE

Testimony at the guilt/innocence stage of trial established that appellant deliberately caused the death of Sheryl Norris by continuously submergirig her in water for several minutes and that appellant did so with the expectation that Norris would drown. Most of the punishment stage of trial focused on “whether there [was] a probability that the defendant would commit criminal, acts of violence that would .constitute a continuing threat to society:” The State called victims of appellant’s past'sexual assaults, appellant’s stepdaughters whom he sexually molested, and fellow inmates from penal and psychiatric institutions who had been brutalized by appellant while he was in custody.

Rape victims

The State called witnesses to testify to five different rapes committed by appellant. One rape victim testified that appellant raped her in. California on August 8, 1975 — a mere three months before raping and killing Norris. The victim described riding her bicycle near Joshua Tree National Park when appellant pulled her from her bicycle and dragged her into his car. Appellant drove off with the victim on the floorboard of his car. The victim testified • that she saw a pencil in the floorboard and considered stabbing appellant, but decided against it because she feared appellant would kill her. After driving a distance from where he abducted her, appellant stopped the car and raped the victim. Then appellant drove back to the scene of the abduction, where police had already gathered because a friend of the victim recognized her abandoned bicycle and suspected foul play,, and appellant “stopped about 50 or 60 feet in front of all these police officers and just pushed [her] out of the car and then he rode right through them.” Appellant pled guilty to rape in San Bernardino County, California and was originally given a probated sentence of three years. Appellant’s probation was later revoked.

Another victim was raped twice by appellant in San Antonio, - Texas, in early 1977. The victim testified that the experiences were so traumatizing that she had difficulty remembering the details of the rapes. The victim told of one of the rapes occurring at a used furniture store where she worked after graduating from high school. After raping the victim, appellant left the store and drove off, but not before the victim was able to run out of the store and see the license plate number on appellant’s car. Despite having appellant’s license plate number, the victim did not report the rape to police at that time. The victim then told of a second rape that occurred at the same store. Her memory was not clear, but she did then report both sexual assaults to the police. The victim was asked by police to identify her rapist from a live line-up, and she identified appellant. The victim did not testify in court against appellant at that time and testified that she has tried to block the rapes from her mind.

Appellant’s next victim was sexually assaulted in May 1977, when she was in her early twenties. The victim died before this trial. Barbara Niemann and Eddie Pinchback, both with the San Antonio Police Department, testified to their investigation of the rape. Niemann interviewed the victim and said that the victim identi fied her assailant from a line-up. Pinch-back testified that appellant was eventually arrested for the rape. Pinchback also testified that he interviewed a witness by the name of Willie Wood in connection with the rape. Willie Wood testified that he was the person the victim initially encountered after she was raped and that he and some of his coworkers were the ones who called the police, Wood testified that the victim- came running, into the grocery store warehouse in San Antonio, where he worked the 11 p.m. to 7 a.m. shift, and that the victim was naked from the waist down and crying .hysterically. Wood testified that the victim had cuts and bruises all over her head. Appellant pled guilty to aggravated rape in this case. On November 14, 1977, he was convicted in Bexar County and sentenced to seven years’ imprisonment.

Another victim, C.P.V., testified that appellant raped her on August 20, 1983, in California when she was trying to get a ride back home to another town. C.P.V. testified that she initially felt safe about taking a ride from appellant because there was an older' man in the backseat of the car and she had not had problems when she had previously accepted rides. However, after dropping the older man off at a bus station, appellant drove to a secluded spot and raped C.P.V. in the car. Appellant pled guilty to “rape by force” in Kern County, California on October 14, 1983. He was sentenced to eight years’ of imprisonment.

The last rape victim to testify against appellant testified that appellant raped her on June 16, 1991, when she was twenty-one years old. • The victim had gone to a laundromat in the early morning hours of June 16, but upon discovering that she needed coins for' the laundromat, the victim began walking to a gas station. Appellant drove by and offered the victim a ride. Once the victim was in the car, appellant drove to a dark road and raped her in his car. After the rape, appellant allowed the victim to leave the car. The victim walked back to the laundromat to get her clothes and went home without reporting the rape because she was so embarrassed. However, she eventually reported the rape to police and picked appellant out of a line-up. Appellant pled guilty to “rape by force” in Kern County, California. He was convicted and sentenced to eight years’ imprisonment, enhanced to ten years for two prior rape convictions.

Molestation of Stepdaughters

The State also called appellant’s two stepdaughters to testify about appellant’s sexual molestation of them when they were children. Although no charges were ever brought against appellant by the stepdaughters or their mother on her daughters’ behalf, the State asked the stepdaughters to testify and appellant’s counsel had opportunity to cross-examine them about the sexual abuse. Appellant was seventeen years old when he began dating an older woman who had four children from a previous marriage. Appellant eventually married this woman, and the two boys and two girls became his stepchildren.

Even before marrying their mother, appellant began sexually molesting the youngest daughter whom he would babysit while her mother worked the night shift at the Seguin Police, Department as a dispatcher. The youngest daughter told her mother that appellant was touching her inappropriately, but her mother did not believe her. Appellant joined the Marines, and was first státioned in California, followed by North Carolina. Appellant and his wife left her three oldest children in foster care in Texas but took the youngest daughter, who was around ten years old at that time, to live with them. The youngest daughter testified that while she lived with her mother and appellant in North Carolina, appellant repeatedly tried to sexually assault her. At first, appellant’s wife tried to protect her daughter from appellant’s sexual abuse; she went as far as barricading her daughter in her bedroom before appellant got home from work so that appellant could not enter the room. But after her daughter ran away from homé to get away from appellant, appellant’s wife sent her daughter back to San Antonio alone. In San Antonio, the youngest daughter was put in foster care, but when appellant and his wife returned to Texas, the youngest daughter, thirteen at the time, ended up living with them. Appellant began sexually assaulting her again: This time appellant’s wife told her daughter to let appellant, have sex with her: “My mother approached me and said that if I would let Willie Roy sleep with me, that he would leave me alone.” However, appellant did not leave her alone. She was put back into foster care at age fifteen and eventually moved in with her biological father. Appellant’s stepdaughter did not return to her mother’s custody after that and had no contact with appellant since that time.

The oldest of appellant’s stepdaughters testified that appellant would come into her bed at night and fondle her as well as spy on her when she was undressed in the bathroom. The oldest stepdaughter was able to escape continued sexual abuse by appellant because appellant and her mother left the three oldest children in Texas when they moved to California.

Assaultive Behavior in Custody

The State sufficiently established appellant as a sexual predator when outside of penal institutions, but the State also provided ample evidence that appellant would be a future threat even when confined within institutions. The State played for the jury nineteen video depositions of patients and staff who had interacted with appellant while he was confined to Atas-cadero State Hospital and Coalinga State Hospital in California for treatment as a sexually violent predator. Appellant had a reputation for attacking both patients and staff while confined in the California state hospitals.

The patients from Atascadero and C.oa-linga who had previously been on the same ward as appellant related general opinions of appellant being difficult to get along with and incidents of appellant starting fights over what program the patients would watch in the communal television room. One patient, who was 6’1”, 225 pounds, and very physically fit, recounted how appellant disagreed with him about which sports program would be shown on the group’s television, and then later he and appellant got into a physical fight which resulted in appellant giving him a bloody nose. Another patient related how he was bullied by appellant over, the television programs and how he was bitten by appellant when they got , into a fight about the television. Appellant assaulted a disabled patient who used a walker to assist him in walking. This patient testified that appellant tried to gouge his eyes out, but the patient refused to press charges because he was afraid of appellant. Other patients who were assaulted by appellant also refused to press charges because they were afraid of appellant. Several staff members testified to the assaults committed by appellant, and they described appellant as the aggressor and unusually- prone to biting others when fighting.

One former patient of Coalinga State Hospital, who. now lives in Texas, testified at appellant’s trial. This former patient, who had previously served time in California’s Folsom, and San Quentin prisons, related how appellant gave him the worst beating of his life because he got into an argument with appellant about which Los Angeles neighborhood the L.A. Lakers Staples Center was located in. The former patient said appellant knocked out three of his teeth and gouged his eyes during the fight, causing him to be sent to the infirmary and then an outside, medical facility for ten days.

The staff from Atascadero and Coalinga testified that appellant was defiant towards staff and had a nothing-to-los,e attitude toward anyone who tried to discipline him. Staff -witnessed numerous confrontations and physical fights between appellant and other patients. Appellant was also. known to assault staff members. One female psychiatric technician recalled how appellant pulled her' hair and scratched her neck when grabbing her by her hospital identification lanyard hanging around her neck. This technician'said that appellant shouted profanities at her and told her he wished she would die.

Mitigation

The defense focused on, “Whether, taking into consideration all of the evidence, including the circumstances of the offense, the defendant’s character and background, and the personal moral culpability of' the defendant, there is a sufficient mitigating circumstance or circumstances to warrant that a sentence of life imprisonment rather than a death sentence be imposed.” The defense presented testimony of family-members and friends of the family to illustrate the promise of a young man who had at one time played football for what is now Texas State University on a full-ride athletic scholarship and the difficult circumstances of poverty-and abuse from which appellant had risen. Although it was gem erally. agreed that appellant grew up in poverty, the State effectively cross-examined appellant’s childhood friends to establish that they were not familiar with appellant’s home life and that they had not maintained contact -with appellant since childhood. The State also- cross-examined family members to establish that the physical abuse between adults in the various households in which appellant lived was not witnessed by appellant and occurred at times when appellant was not living in the home. The defense also presented testimony in the form of video depositions from eight patients and one guard who had known appellant from his time in California state hospitals for sexually violent predators. These eight patients and the one guard testified in their depositions that they knew appellant mostly kept to himself, but they did not know him to be violent or one to start altercations.

In rebuttal the State presented witnesses who had been housed with appellant in Hays County Jail while appellant awaited this trial. One of these inmates, who was twenty-six years old, 6’2”, and 235 pounds, testified that he and other inmates requested that appellant, who is sixty years old, be removed from their cell block because he was dangerous. Another of these inmates recounted that it had taken four to five officers to remove appellant from the cell block when the request for removal was granted. A Hays County Sheriffs Department sergeant testified that the Sheriffs Department had tried to avoid problems between appellant and other inmates by moving appellant around to different cell blocks in the jail — at one point moving him to a cell with one inmate who had committed a similar offense to appellant and another inmate who had been convicted of murder on behalf of the Mexican Mafia crime syndicate. But even inmates with convictions for equally or more violent offenses requested that appellant be moved for fear of their own safety.

SUFFICIENCY OF THE EVIDENCE

In point of error one, appellant asserts, “The death sentence must be reformed to life imprisonment because the evidence is insufficient to establish that appellant deliberately caused the death of Sheryl Ann Norris.” However, appellant has not briefed this point of error, which concerns the punishment phase. Instead, his supporting argument concerns the sufficiency of the evidence to establish that he murdered Norris — a prerequisite to finding him guilty of capital murder. Because appellant has failed to brief his stated point of error, we will not consider it. In the interest of justice, however, we will consider appellant’s point of error as a challenge to the sufficiency of the evidence that he murdered Norris.

Appellant argues that the trial evidence showed “at best” that his DNA was in and on Norris’ body. Appellant acknowledges that the State’s evidence “may support a rational jury’s finding of aggravated sexual assault,” but he claims that no evidence linked him to Norris’ murder. He asserts, “Under Malik, the State failed to prove the specific offense charged, and appellant is entitled to an acquittal of that specifically charged offense.” He cites Byrd v. State, which, in turn, cites Malik v. State. In Byrd and Malik, we measured the sufficiency of the State’s evidence to prove the specific offense charged against a hypothetically correct jury charge.

In assessing the legal sufficiency of the evidence to support a capital murder conviction, we consider all of the evidence in the light most favorable to the verdict and determine whether, based on that evidence and reasonable inferences therefrom, any rational juror could have found the essential elements of the crime beyond a reasonable doubt. Our review of “all of the evidence” includes evidence both properly and improperly admitted. We give deference to “the responsibility of the trier of fact to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Each fact need not point directly and independently to the appellant’s guilt, as long as the cumulative force of all the incriminating circumstances is sufficient to support the conviction.

The State may prove a defendant’s identity and criminal culpability by either direct or circumstantial evidence, coupled with all reasonable inferences from that evidence. A- lack of direct evidence is not dispositive of the issue of guilt. Circumstantial evidence is as probative as direct evidence in establishing guilt, and circumstantial evidence alone can be sufficient. On appeal, the same standard of review is used for both circumstantial and'direct evidence cases.

A hypothetically correct jury charge is a charge that “accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State’s burden of proof or unnecessarily restrict the State’s theories of liability, and adequately describes the particular offense for which the defendant was tried.” The “law 'as authorized by the indictment” includes the statutory elements of the offense and those elements as modified by the indictment.

In this case, the applicable provision of the Texas Penal Code states, in relevant part, that a person commits capital murder if the person intentionally commits murder in the course of committing or attempting to commit aggravated rape. In a capital murder ease, the elements of the aggravated rape and the murder may overlap.

The indictment. charged appellant with capital murder as follows:

Defendant,.-on or .about the. 24th day of Novettiber, A.D. 1975, and before the presentment of this indictment, in the County and State- aforesaid, did then and there intentionally cause the death of an individual, namely Sheryl Ann Norris, by strangling the said Sheryl ' .Ann Norris, and the Defendant was then . and there in the course of committing or attempting to commit the offense of aggravated ' rape of. Sheryl Ann Norris;

■... Defendant, on or about -the -24th day of November, A.D. 1975, and before the presentment of this indictment, in the County and State aforesaid, did then and there intentionally cause .the death of an individual, namely Sheryl Ann Norris, by drowning the said Sheryl Ann Norris, and the Defendant was then and there in the course of committing or attempting to commit the offense of aggravated' rape of Sheryl Ann Norris[.]

Considering all of the evidence in the light most favorable to the verdict, we conclude the jury could reasonably infer that appellant intentionally murdered Norris in the course of committing aggravated rape by the manner and means alleged in the indictment.

The evidence showed that, consistent with her usual routine, Norris left her office and went home for lunch at noon. Contrary to her usual routine, she did not answer the phone when Andrus called her during the lunch hour. A little after 5:00 p.m., when Andrus found Norris’ partially-clothed body in the bathroom, two ligatures were tightly knotted around her neck, her head and shoulders were under water, and her submerged watch was stopped at 12:31. Her vaginal and anal areas' were soiled with blood and feces. Appellant’s DNA profile was identified in semen inside Norris’ body and in a hand print on the blouse she was wearing.

A crumpled rug and money scattered on the floor of the otherwise-tidy apartment indicated that a struggle began near the front door and continued into the .bedroom. Damaged sheet rock on the wall, and fecal material leading from the bed to the bathroom, indicated that the struggle continued into the bathroom, where Norris’ body was found. Inyestigators observed feces on the floor under Norris’ body. Norris’ body had been under water for at least four and one-half hours before the crime scene was photographed, around 8:00 p.m. The condition and position of Norris’ body were consistent with someone intentionally strangling her and drowning her in the course of committing an aggravated rape. Viewing the totality of the evidence, the jury could reasonably infer that appellant intentionally murdered Norris in the course of committing aggravated rape.

■ Appellant points out that the ligatures used to strangle Norris had been lost by the time of trial. However, the ligatures themselves were not necessary to prove that Norris had been strangled or that appellant was the person who strangled her. The totality of the evidence was sufficient to show that appellant strangled and drowned Norris in the course of committing aggravated rape against her.

Appellant appears to suggests that, even if the evidence established that he had sexual intercourse with Norris, the State’s evidence did not rule out the possibility that someone else murdered her. Appellant presented this theory at trial, where the jury rejected it. On the record of this case, appellant’s proffered scenario, in which appellant had sexual intercourse with Norris and then someone else entered the apartment and murdered her, strains credulity. There was no evidence that Norris and appellant knew each other. Further, we will not usurp the role of the fact finder by factoring into our sufficiency analysis an alternative “hypothesis inconsistent with the guilt of the accused.” Point of error one is overruled.

ADMISSIBILITY OF DNA EVIDENCE

In point of error two, appellant asserts that the trial court erred in “failing to suppress any and all DNA evidence and testimony due to the failure of the testing to meet quality assurance standards,” and therefore his conviction should be reversed. This argument appears to conflate Rule 702, which concerns the admissibility of scientific ■ evidence, with Article 38.23, which concerns the admissibility of illegally obtained evidence. To the extent that appellant’s point of error implicates Article 38.23, it is, arguably, multifarious and inadequately briefed. However, in the interest of justice, we will discuss both Rule 702 and Article 38.23 as they apply to appellant’s allegations.

Appellant contends that the DNA profile which was uploaded to CODIS did not comply with the Quality Assurance Standards of the Federal DNA Identification Act or Texas’ standards. He asserts that both the federal and state standards specify the inclusion of a “reagent blank” as a control when generating a DNA profile, but in this case, those standards were not followed. He points out that DPS analysts submitted a “Deviation Request” seeking approval to run the “MiniFiler” and obtain a DNA profile even though they did not have a “reagent blank” to run with the liquid extract. Appellant reasons that, because the DNA profile which generated the CODIS hit was obtained without the use of the required “reagent blank,” the DNA profile should never have been uploaded to the CODIS database.

A trial court’s responsibility under Rule 702 is to determine whether proffered scientific evidence is sufficiently reliable and relevant to assist the jury. The proponent of the scientific evidence bears the burden of demonstrating, by clear and convincing evidence, that the evidence is reliable. This is accomplished by showing that: (1) the underlying scientific theory is valid; (2) the technique applying the theory is valid; and (3) the technique was properly applied on the occasion in question. Before scientific evidence may be admitted, the trial court must conduct a hearing outside the presence of the jury to determine whether the proponent has established all three criteria.

The record shows that appellant filed a pretrial motion to suppress DNA evidence. In it, he cited the NDIS Operation Procedures Manual and asserted that the quality assurance standards of the Federal DNA Identification Act specified the “inclusion of a reagent blank.” He also quoted Texas Administrative Code § 28.26(b), which stated that standards for DNA analysis “shall meet or exceed the current standards for quality assurance ... for forensic DNA analysis issued by the FBI.” Appellant stated that, absent DPS’s violation of its own DNA testing procedures and FBI quality assurance standards, he would never have been targeted as a suspect. Citing Article 38.23, appellant asserted that “any further results” that “followed from the original violations must also be suppressed as fruits of the poisonous tree.” The trial court did not rule on this motion before trial.

At trial, Flores testified before the jury regarding the “checks and balances throughout the screening, extraction, amplification and interpretation processes,” the DPS lab’s use of proficiency testing and certification for lab personnel, and the fact that the lab is accredited by the American Society of Crime Laboratory Directors. He noted that one quality control measure that-the DPS lab uses in conducting a DNA analysis is a reagent blank. In 1997, when Flores made the liquid extract from the vaginal sample, standard practice was to use á reagent blank, and Flores created one at that time. Flores explained that a reagent blank was a sample that, contained the reagent that was used in the. extraction but not the biological material. It would be analyzed, or run, along with the forensic sample. If the analysis of the reagent blank led to any kind of profile, this would signify that the reagent was contaminated. Flores testified that such contamination would not alter the DNA profile obtained from the forensic sample; it would just provide additional information. Depending on the strength of the contaminant, this additional information might show up as a “second allele from the same individual” or as a reading that' an additional person was present.

Flores further testified that, if a reagent blank is consumed in the first analysis because it comes out negative, then there is no need for a reagent blank in subsequent analyses of the same extract. In this case, Flores prepared a reagent blank when he made the liquid extract. It was consumed by the analysis because it came out negative, which signified that the reagent was not contaminated. Therefore, there was no need to run additional reagent blanks when conducting additional analyses of the same liquid extract. Flores’ analysis consumed part of the extract, but he saved a “good bit” for further analysis. Carradine and Kuhlmann used' this same liquid extract in later DNA anal-yses.

' After Flores testified, the trial court held a hearing outside the jury’s presence on the defense’s motion to suppress the DNA evidence. Appellant presented a “Deviation Request” that was dated June 24, 2010, and contained the DPS lab’s reference number for this case. In it, a DPS lab analyst requested a deviation from standard procedure, stating:

There are samples that were extracted prior to July 1, 2009 that need to be amplified with additional kits (Identifi-ler, Yfiler, and/or Minifiler) that do not have remaining reagent blanks. Based upon the more sensitive nature of these kits it would be beneficial to conduct further analysis on samples that were extracted prior to July 1, 2009 to obtain more information for comparisons and potential CODIS upload.

The form also contained signatures of approval and a handwritten note, dated June 25, 2010, reflecting that the request was approved, with conditions that: (1) the case record clearly indicate which samples were amplified with this -deviation; and (2) a copy of the deviation be included with the case record.

The State presented an excerpt from the “FBI Quality Assurance Standards Audit for Forensic DNA Testing Laboratories, In Accordance with the Quality Assurance Standards for Forensic DNA Testing Laboratories Effective July 1, 2009.” This publication contained a checklist with language providing, in relevant part, that reagent blank controls “shall” be amplified ánd typed under the same conditions as' the forensic sample.' The text underneath the checklist included the following explanation: “A reagent blank control is an analytical control sample that contains no template DNA and is used to monitor contamination from extraction to final fragment or sequence analysis. The control is treated the same as, and parallel to, the forensic and/or casework reference' samples being analyzed.” This text also states that the amplification and typing requirements for reagent blank controls are applicable to samples extracted on or after July 1, 2009. The State also presented a “Deviation Request Supplement” that was dated June 3, 2011, and contained the DPS lab’s reference number for this case. This “Supplement” stated, “Due to a revision in the [Standard Operating Procedure], this deviation is no longer needed.”

Defense counsel argued that the 2010 DNA profile should never have been uploaded into the CODIS database because the forensic sample used to obtain the DNA profile was not accompanied by a reagent blank when it was run. Counsel reasoned that, without this “hit” in CO-DIS, none of the other evidence tying appellant to this offense would have existed. Therefore, counsel asserted, evidence of this hit and all of the inculpatory evidence obtained thereafter should be excluded as the “fruit of the poisonous tree.”

The State responded that the reagent blank requirement cited by the defense applied to samples extracted on or after July 1, 2009. Because the sample at issue was extracted in 1997, this requirement did not apply. The State argued that the “Deviation Request” did not establish that the procedures failed to comply with FBI and statutory quality control standards. Further, the State argued, appellant had no constitutional .right to particular DNA testing protocols, and therefore any deviation went to the weight of the evidence rather than its admissibility. The trial court denied the motion to suppress, noting that the defense could present the jury with evidence and testimony challenging the DNA evidence.

On appeal, appellant challenges only the third criterion of the test for scientific reliability — whether the technique was properly applied on the occasion in question. See Somers, 368 S.W.3d at 536. Appellant relies solely on the DPS lab’s failure to run a reagent blank when it analyzed the extract in 2010, which he asserts violated FBI and DPS lab protocols.. He submits that the “Deviation Request” establishes that the lab did not follow its own procedures. However, the language of the “Deviation Request” specified that the analyst sought a variance from a procedure that applied to samples extracted on or after July 1, 2009, even though the sample to be analyzed was extracted in 1997. Thus, the request appears to have been filed out of an abundance of caution, and as a means of documenting the procedure that was actually followed.

The only evidence concerning the protocol applicable to the 1997 extract at issue was Flores’ testimony. Flores stated that he followed the protocol that was in effect in 1997 by running a reagent blank when he first analyzed the liquid extract. According to the protocol then in effect, other analysts who later tested the same extract did not need to run additional reagent blanks. - '

Moreover, when the trial, court ruled on appellant’s motion to suppress, the only evidence concerning the purpose of running a reagent blank was Flores’ testimony and the “FBI Quality Assurance” publication, both of which indicated that running a reagent blank could reveal whether the reagent used in the forensic sample was contaminated. Flores further testified that, even if the reagent was contaminated, this contamination would not alter the DNA profile obtained from the forensic sample.

The trial court reasonably determined that the proffered scientific evidence was sufficiently reliable to assist the jury. Therefore, the trial court did not abuse its discretion by determining that the 2010 DNA evidence was sufficiently reliable and relevant under Rule 702.;

Althoúgh appellant referred to Article 38.23 in his pretrial motion to suppress, he does not expressly refer to Article 38.23 on appeal. However, his assertion that all inculpatory evidence obtained as a result of the 2010 DNA profile should have been excluded, and his argument that his conviction should be reversed, appear to implicate Article 38.23.

' Even if appellant had proven the alleged procedural irregularity, it would not merit the exclusion of evidence under Article 38.23. Creating a DNA profilb from a biological sample obtained from Norris’ body, and uploading the profile into CO-DIS, did not implicate appellant’s privacy or property rights; Therefore, the DNA profile and the CODIS hit áre not subject to exclusion under Article 38.23. For the same reasons, .Article 38.23 does not require the exclusion of other inculpatory evidence that, arguably, was obtained as a result of the DNA- profile and the CODIS hit.

We conclude that the trial court did not .abuse its discretion by denying appellant’s motion to suppress the 2010 DNA profile, the CODIS hit, and inculpatory evidence that was obtained after appellant was identified as a suspect. Point of error two is overruled.

ADMISSIBILITY OF PLEA OFFER

In point of error three, appellant asserts that the trial court erred in not allowing evidence of his willingness to enter a plea “to the jury” to the offense of aggravated sexual assault, because this evidence was relevant to the mitigation special issue. .

As an initial matter, the record does not support appellant’s assertion that he offered to “enter a plea of guilty to the jury” to the offense of aggravated sexual assault. Rather, in his “Defendant’s Offer to Enter Pleas of Guilty,” filed on April 3, 2013, appellant offered to:

(1) enter a plea of “guilty” to the offense of capital murder in exchange for a sentence of life imprisonment; and to

(2) waive indictment and “any issue of the statute of limitations” and plead “guilty” to a felony information to the first degree felony offense of burglary of a habitation with intent to commit sexual assault.

Appellant also offered to waive his right to parole, “so far as that waiver is possible[,]” and to “make no objection to the State of Texas objecting to him being paroled, ... should the Texas Board of Pardons and Parole ever consider paroling him out of prison.” Finally, he offered to enter the pleas on separate dates, “so that the Texas Department of Criminal Justice will not consider them as a single plea, making the pleas a de facto stacking of two life sentences.”

Appellant does not state that he attempted to introduce his “Offer” as evidence and that the trial court ruled that it was inadmissible. Nor does he cite to any place in the record where he sought a ruling on the admissibility of this pleading. Therefore, this allegation is inadequately briefed. Nevertheless, our independent review reveals that, in a hearing outside the jury’s presence at the end of the defense’s punishment case-in-chief, appellant attempted to introduce into evidence his written offer to plead guilty. In response to the State’s motion in limine concerning the admissibility of plea negotiation evidence under Texas Rule of Evidence 410, appellant argued that Rule 410 only barred the use of plea negotiations against a defendant; it did not bar the introduction of plea negotiations on a defendant’s behalf. He further argued that the prosecutor had opened the door to this evidence by telling witnesses, “We’re sorry you have to be here,” which (according to defense counsel) gave the jury a false impression that the trial was “all [the defendant’s] fault,” when in fact the trial could have been avoided if the State had accepted his plea offer.

The prosecutor responded that the purpose of Rule 410 was “to keep plea negotiations or a lack thereof out from [sic] the jury because it’s absolutely not relevant to any of the jury’s determinations.” The prosecutor asserted that the State had “brought in nothing as it relates to plea negotiations,” and that simply telling a crying witness, “I’m sorry you’re here,” did not open the door to evidence that was otherwise inadmissible. The prosecutor further asserted that, if the defense introduced evidence of the plea offer, this evidence would open the door to the State’s “sharing with the jury why we can’t do that,” including a discussion of the applicable parole law, which was “a huge part of why ... this hasn’t happened.” The trial court ruled that the plea offer was inadmissible “pursuant to the Texas Rules of Evidence.” Defense counsel then rested its punishment case-in-chief.

Rule 410 provides, in relevant part:

(b) Prohibited Uses in Criminal Cases. — In a criminal case, evidence of the following is not admissible against the defendant who made the plea or was a participant in the plea discussions:

# # *

(3) a statement made during a proceeding on either of those pleas under Federal Rule of Criminal Procedure 11 or a comparable state procedure; or

(4) a statement made during plea discussions with an attorney for the prosecuting authority if the discussions did not result in a guilty or nolo contendere plea or they resulted in a later-withdrawn guilty or nolo contendere plea.

(c) Exception. — In ... a criminal case, the court may admit a statement described in paragraph (b)(3) or (4), when another statement made during the same plea or plea discussions has been introduced and in fairness the statements ought to be considered together.

We note that Rule 410 is silent on the admissibility of plea negotiations when that evidence is presented for, rather than against, a defendant. However, if the trial court’s decision was correct on any applicable theory of law, we will sustain it. This is true even if the judge failed to give any reason or gave the wrong reason for the ruling. On appeal, we review the trial judge’s evidentiary rulings under an abuse-of-discretion standard.

We have held that a State’s plea offer, presented by a capital defendant at the punishment phase, might be “minimally relevant” as tending to show the District Attorney’s office’s belief that the defendant is not a future danger. Nevertheless, such evidence is not admissible under Rule 403. because it is “substantially outweighed by the danger of both unfair prejudice and of misleading the jury.” Admitting evidence of plea negotiation also runs the risk of confusing the issues by leading the jury down a path of inquiry into the motivations behind each party’s plea offer. Further, allowing a defendant to introduce evidence at trial of a sentence offered by the State during plea negotiations clearly militates against public policy favoring the conclusion of litigation by compromise and settlement because it discourages the State from making such offers in the future.

In this caSe, like -the defendants in Smith and Prystash, appellant attempted to introduce his own plea offer as evidence in mitigation of punishment. However, appellant offers little argument as to how the jury is to infer mitigation from his plea offer other than it was not his fault that the trial went forward instead of resulting in a plea bargain. In a capital case, the defendant’s offer to plead guilty in exchange for a sentence other than death inures to his benefit if the State accepts it, and, if the State rejects it, the defendant is no worse off than he was before. Arguably, therefore, evidence of such a self-serving plea offer is not even “minimally relevant” to the mitigation special issue.

Even assuming that appellant’s plea offer evidence was minimally relevant, any probative value of this evidence was substantiálly outweighed by the dangers of unfair prejudice and misleading the jury. A Rule 403 ■ analysis includes, but is not limited to, the following factors: (1) the probative value of the evidence; (2) the potential to impress the jury in some irrational, yet indelible, way; (3) the time needed to develop the evidence; and (4) the proponent’s need for the evidence. Any probative value of appellant’s plea offer was diluted by the various motivations that may have driven appellant’s and his attorneys’ decision to make the offer. Indeed, evidence of a capital defendant’s own plea offer is even less probative and poses an even greater .danger of misleading the jury than does evidence of a State’s plea offer because the defendant potentially benefits, by offering to plead guilty in exchange for a sentence other than death. Without.additional evidence of appellant’s and his attorneys’ motivations, the jury could only speculate as' to the mitigating value, if any, of appellant’s plea offer evidence. As such, the potential for this evidence to affect the jury in an irrational way was high. Thus, any arguably probative value of appellant’s plea offer evidence Would have been substantially outweighed by the danger of unfair prejudice and misleading the jury.

We also recognize that allowing a defendant to present evidence of his own plea offer militates against public policy favoring the conclusion of litigation by compromise and settlement. Just as allowing a defendant to introduce a plea offer from the State would discourage the State from making such offers in the future, allowing a defendant to introduce his own plea offer would encourage defendants to make plea offers in order to develop evidence for later proceedings, rather than to conclude the litigation through good-faith negotiation.

The decision to admit or exclude appellant’s plea offer evidence was soundly within the discretion of the trial judge. This evidence was, at best, minimally relevant, and its probative value, if any, was substantially outweighed by the danger of .unfair prejudice and misleading the jury. We conclude that the trial court did not abuse its discretion by excluding it. Point of error three is overruled.

JUROR MISCONDUCT

In point of error four, appellant asserts that the trial court erroneously denied the defense’s motion for mistrial after juror misconduct was brought to the trial court’s attention. Appellant asserts that, as a result of a juror’s improper conversation with an outside party, he did not receive a fair and impartial trial. '

The record' shows that, on Thursday, June 6, 2013, during the punishment phase, the trial court adjourned the proceedings until the following Monday, June 10, 2013. On Monday morning, before the presentation of evidence resumed, Judith .Kama Davis, an attorney unrelated to this case, informed the trial court that one of the jurors, Tim Altenhoff, had communicated with a third party about the case over the weekend. Specifically, he. had “texted” Jan Ellis, a friend who lived in New York, asking her to call him so that he could tell her about a murder case on which he was serving as a juror. Concerned that Altenhoffs conduct might be illegal, Ellis contacted Davis, whom Ellis knew socially.- Ellis sent Davis copies of the texts that Altenhoff had sent to her, as well as his “electronic contact card” which included his name and telephone numbers. Davis read the following text exchanges into the record:

[Altenhoff to Ellis]: What’s up? If you have a few minutes, give me a call at home and I’ll tell you what I can about the murder trial I’m on.

[Ellis to Davis]: Somebody from San Marcos sent me this text. Isn’t that illegal for a juror?

[Davis to. Ellis]: Yes, that’s “expletive” illegal. Who sent it? The sentencing phase is going down this week and the guy might get the death penalty.

. [Ellis to Davis]: If I tell you .... he will ■ know it was me. It is probably illegal for me not to report it even-from New York?.

[Davis to Ellis]: Jan, if he’s telling you stuff- and you’re in New York, I can guarantee he’s' talking to other people, too. He likely won’t know it’s you. Has he given you any specific info like the name of the case? And, yes, you have to report him.

[Ellis to Davis]: I just texted him back and asked him what was the name of the case. I’m sure he is asleep —

* * *

[Davis to Ellis]: Jan, you remember the 1974 event. Did you know Mr. A at the time? Did he know about the event? Did /all discuss the event around the time it happened?

[Ellis to Davis]: 1975, the year. I do not remember any discussions. We were in high school and everybody knew about it.

* * *

[Altenhoff to Ellis]: State versus Willie Jenkins.

[Ellis to Altenhoff]: That can’t be the one from when we were in high school? [Altenhoff to Ellis]: Yep.

The prosecutor asked Davis if she knew why Altenhoff contacted Ellis about the case. Davis stated that Ellis and Alten-hoff had been friends for many years, and Ellis told her that Altenhoff “probably ha[d] a boring life” and was “excited probably to be on a jury in a case of this magnitude.” Ellis also suggested that Al-tenhoff might have believed that he was not breaking any rules by contacting Ellis since she lived in New York.

In addition, Davis noted that Ellis told her that Altenhoffs father had been a probation officer in San Marcos ai'ound the time of the instant offense. Ellis indicated to Davis that Alt