Questions
1
Richard Vela, Jr., unleashed his temper one night on his live-in girlfriend and anally raped her, among other things. When she escaped his clutches and ultimately obtained a sexual assault exam three days later, medics discovered an oozing anal tear. In Vela’s sexual assault trial, he sought to proffer expert testimony from a certified legal nurse consultant. Cheryl Hartzendorf expected to testify that, where no DNA nor physical evidence links a defendant to the crime, no sexual assault occurred. Premising her opinion on her general nursing experience, she could recite no published authority supporting her belief. At the State’s behest in a Daubert hearing, the Nueces County trial judge excluded her testimony. The 13th Court of Appeals reversed, holding that Hartzendorf’s experience qualified her as an expert. Who was right: the trial judge or the appellate court?
____ trial judge
____ appellate court
2
During the wee hours of a Houston morning, while several Whataburger employees worked inside the closed fast-food restaurant, Gerald Edward Marshall shimmied in through the unlocked drive-thru window. While other employees hid, Marshall chased one worker out the back door, caught him, and brought him back inside. After Marshall repeatedly, albeit unsuccessfully, demanded access to the safe, he shot the employee in the face. After uncovering Marshall’s identity, officers visited him, but he extolled his innocence. Later, through his girlfriend, Marshall sought to reinitiate police contact to “tell his side” to the authorities. Curiously, when the officer met Marshall and asked him if he wanted to voluntarily waive his rights, Marshall replied, “No, sir.” Instead of instantly stopping his inquiry, the officer restated that he had been contacted by the girlfriend regarding Marshall’s desire to talk to law enforcement. The officer elaborated that he was asking one more time to “clear up” whether Marshall wanted to voluntarily agree to waive his rights and talk to the police. The officer explained that, to do so, Marshall needed to say “yes.” At this point, Marshall agreed to waive his rights, gave a statement, and later contested its admissibility, contending that the officer violated his constitutional right to remain silent by continuing the discussion after Marshall initially refused to waive his rights. Was admission of this statement error?
____ yes ____ no
3
Galveston resident Charlie Melvin Page’s preoccupation involved posing as a policeman. During these stints, his penchant for persuading prostitutes to orally probe his privates prevailed when he promised not to arrest them in exchange for the previously mentioned personal prurient favors. His promiscuities persisted until the police placed him in the pokey.
During the guilt phase of his trial for sexual assault and impersonating a public servant, the trial judge allowed the admission of two very similar extraneous offenses perpetrated against other prostitutes. Page voiced a TRE 404(b) objection and complained that identity had not be raised, even though the victim’s cross-examination had called into question the description of Page’s weight. Assuming that the evidence raised the identity issue, were the extraneous acts admissible in this trial?
____ yes ____ no
4
An Odessa teacher named Daniel Igo seduced his 15-year-old student, drove her to a Lubbock motel for sex, maintained this illicit relationship post-indictment, and even tried to bribe the poor girl to drop the charges. After the jury heard the evidence against Igo, the trial court submitted an erroneous parole-law charge to which Igo failed to object. After being convicted and receiving a maxed-out sentence, Igo unsuccessfully complained that the judge had misdirected the jury on the law in a motion for new trial filed under Rule 21.3 of the Rules of Evidence. On appeal, Igo contended that the abuse-of-discretion standard used to review the denial of motions for new trial trumped utilization of Almanza’s egregious harm standard applicable to charging error. Which standard applies?
____ abuse of discretion
____ Almanza
5
Two days after being arrested for possessing cocaine (residue) in a long plastic tube, Adam Troy Griffin was described as selling crack cocaine at a specific location (known for high drug trafficking) by a reputable confidential informant. About five minutes later, officers who had received this information saw Griffin at the described spot. Although they observed no overt criminal activity, they knew about his prior arrest and that he carried narcotics in tubes. When Griffin saw the officers, his nervousness was apparent, and he reached for his pocket. Believing they had insufficient information for probable cause, the officers chose only to stop and detain Griffin to further investigate the CI’s information. For safety, one officer frisked Griffin. Testimony indicated that this was common practice when investigating drug suspects because of the possibility that they carry weapons. During the frisk, the officer felt two long cylindrical tubes and, based upon his knowledge of illegal narcotics practices, believed they contained drugs. Upon feeling the tubes, the officer secured Griffin’s arrest. At that point, the tubes were extricated from Griffin’s pocket and each contained numerous rocks of crack cocaine. Will the officer’s actions (detention, frisk, and seizure) be upheld?
____ yes ____ no
6
On a September evening in San Antonio, Anthony Gigliobianco erratically sped his motorcycle on the San Antonio loop. SAPD Officer Heim stopped him, recognized signs of intoxication, and conducted a typical roadside DWI investigation. Gigliobianco failed some of the field sobriety tests at the scene and admitted drinking some beer, but he appeared quite lucid on the station-house videotape. The DWI information charging Gigliobianco alleged both intoxication definitions, and evidence of the .09 Gigiliobianco blew was admitted at his trial over a TRE 403 objection. He was found guilty of DWI. On appeal, this offender argued that the trial court erroneously admitted the breath test because its relevance was “significantly low” as it only proved that Gigliobianco had been drinking, which he had already admitted to Officer Heim and, accordingly, the test’s results posed a “high potential for an irrational impression” on the jurors. Neither the trial court nor the San Antonio appellate court bought this claim. Should the trial judge have ruled that TRE 403 prohibited admission of the breath test in this case?
____ yes ____ no
7
Swanda Marie Lewis killed her husband, then called 911. At the scene and at the police station, Lewis made statements to the officers after she received Miranda warnings. During trial, the prosecutor posed questions pertaining to statements Lewis made when the officers had first contacted her and when she spoke to the 911 operator; another general question was “did you ever” tell officers about being raped. Lewis objected that these three interrogatories commented on her post-arrest silence; each objection was sustained and essentially followed by the litany of regular preservation questions. After sustaining the third objection, the trial judge granted Lewis’ requested mistrial. When the State sought to retry Lewis, pretrial habeas proceedings ensued, with the trial court denying relief. However, the 2nd Court of Appeals reversed, relying on Bauder and finding that the prosecutor’s reckless behavior risked that the trial court would find mistrial necessary. Bauder v. State, 921 S.W.2d 696, 699 (Tex.Crim.App. 1996). Does Bauder still bar retrial where a court finds that the prosecutor recklessly risked mistrial?
____ yes ____ no
8
A Tarrant County jury convicted James Timothy White, a child-sex offender, on two counts, then heard punishment evidence regarding his similar escapades in Delaware. The resultant finding of “true” to the enhancement allegation invoked an automatic life sentence under Penal Code §12.42(c) (2)(B)(v) on each conviction. The Fort Worth court of appeals made short shrift of White’s direct appeal complaints regarding the enhancement with his out-of-state prior sex offense. After denial of discretionary review, the defendant filed a habeas application contending that his sentences were improperly enhanced due to the priors not being final. Habeas evidence revealed that White’s 1994 Delaware probation had never been revoked, that the northern state’s offense was substantially similar to Texas’ indecency statute, and that Delaware considered post-1972 convictions final, regardless of whether a probated sentence had been revoked. Did the prosecution properly rely on the automatic-life-sentence provision to enhance this sex offender’s convictions with his out-of-state prior?
____ yes ____ no
9
Step-mommy dearest, Martina Vansice Stuhler, threw newspapers in the morning, then headed home to sleep. When her husband’s 3-year-old son was placed in their custody, Stuhler apparently sought to prevent the child from interrupting her slumber by duct-taping him to the toilet and locking him in the bathroom. The trauma of this boy’s confinement and restraint caused him to suffer moderate to severe constipation. When he was removed from the home and medically treated, he suffered an obstructed urinary tract. Psychologically, he manifested PTSD symptoms. On the issue of serious bodily injury, a pediatrician testified that the boy suffered abdominal trauma that created a substantial risk of death, but her testimony included statements that the boy was not at risk of dying when she examined him.
The Denton County trial judge charged the jury with injury to a child but instructed jurors to find guilt disjunctively on two statutory alternative theories for injury to a child—causing serious bodily injury and also causing serious mental deficiency, impairment, or injury—under Penal Code §§22.04 (a)(1) and (2), respectively.
Can proof of serious bodily injury survive a legal sufficiency analysis when the treating physician testified that the injury (here, constipation) did not constitute serious bodily injury “as it was inflicted?” And did the trial court’s instructions disjunctively charge two separate offenses, depriving Stuhler of her right to a unanimous jury verdict?
____ yes ____ no
10
While driving his small white car in the early morning, David Edwin Wiede crashed into the back of an 18-wheeler on a farm-to-market road in Hays County. An eyewitness to the crash, Mr. Tambunga, stopped to help Wiede, who remained seated in his disabled car. Troopers on their way elsewhere also stopped and rendered Wiede assistance. The truck driver departed, apparently initially unaware that a vehicle had smacked into him from behind. While waiting for EMS to arrive and treat Wiede for facial wounds, Mr. Tambunga observed Wiede reach with his left hand across his body and appear to hide something contained in a plastic baggie near the car’s center console. After Tambunga alerted the nearby troopers to this furtive gesture, the officers discussed the information, and one went to the car and searched it. After the officer found a little baggie, Mr. Tambunga corrected the officer saying, no, that he had seen a larger one. Sure enough, a second sweep uncovered a larger baggie containing methamphetamine.
After charges were filed, Wiede moved to suppress the evidence. The trial judge overruled the motion and explained that the bystander’s observation of the furtive gesture which included a description of a plastic bag constituted probable cause to search for drugs because “officers see dope in plastic bags all the time.” However, on appeal to the Austin Court of Appeals, some of Wiede’s arguments were better received. The appellate court noted that the State could not identify the officer who conducted the search; thus, the record failed to reveal that any officer had knowledge that plastic bags are ordinarily used to contain drugs. Additionally, because the appellate court found no suspicious circumstances existed to give rise to a belief that Wiede possessed drugs, the appellate court overturned the trial judge’s decision. Will this reversal stand?
____ yes ____ no
Answers
1
The trial court was right; it did not abuse its discretion by excluding this witness’ testimony. Judge Keasler’s unanimous decision is the court’s first opinion that thoroughly delves into the qualification aspect of expert-witness testimony. Cautioning that many judges fail to discern the distinction between the qualification issue versus determinations of reliability and relevance, Judge Keasler explained that trial courts must independently evaluate expert witness qualifications.
A qualification analysis must consider three questions: 1) How complex is the field of expertise, 2) how conclusive is the expert’s opinion, and 3) how central is the area of expertise to the lawsuit’s resolution. In this respect, not only must a witness have sufficient background in a particular field, but also her experience must go to the matter on which the witness is to give an opinion. Possession of knowledge, skills, or credentials does not automatically qualify someone as an expert. The expert’s knowledge, skill, experience, training, or education regarding the specific issue before the court qualifies that witness to give an opinion on that particular subject. The qualification inquiry requires a “fit” between the subject matter at issue and the expert’s specific familiarity with it, just as this “fit” also applies to the reliance and relevancy conditions. See Jordan v. State, 928 S.W.2d 550, 556 (Tex.Crim.App. 1996).
In this case, the interim appellate court failed to adequately inquire into Hartzendorf’s qualifications to testify about physical evidence of sexual assault. Simple consideration of her general background—her education and experience as a nurse—constituted no meaningful inquiry into her qualifications in the specific area of expertise.
Also reviewing the lower court’s reliability-of-the-testimony inquiry, Judge Keasler found that the Corpus court completely failed to analyze the issue in spite of its being thoroughly explained in prior opinions. Under TRE 705(c), testimony is inadmissible if the underlying facts/data provide an insufficient basis for the opinion. Contrary to examining the proffered expert evidence for being grounded upon sound scientific methodology, the Corpus court imbued medically-based testimony about sexual assault matters as inherently reliable. The appellate court’s presumption undermined the trial judge’s authority to weed out junk science by demanding a technical showing from a sponsored expert. Judge Keasler reminded trial courts not to admit opinion evidence where it rests solely on the authority of the so-called expert. Judge Cochran’s concurrence elaborates that a scientifically unusual theory requires greater-than-usual scientific documentation supporting its reliability. Also, a trial court’s exclusion of an outside-the-norm opinion will survive appellate review unless the theory’s proponent comes forward with significant supporting documentation. Her opinion assiduously rips this witness’ sexual assault “expertise” to shreds.
Because the Corpus court improperly evaluated the witness’ credibility, failed to review reliability, and also neglected to apply the proper deferential standard, the cause was remanded to the court of appeals for reconsideration. Vela v. State, No. PD-1388-04, 209 S.W.3d 128 (Tex.Crim.App. December 13, 2006) (9:0).
2
No. Analogizing to the invocation-of-counsel discussion in Davis v. United States, 512 U.S. 450, 458 (1994), the unanimous court upheld the trial court’s admissibility ruling. While Davis mandates that questioning must be curtailed when a suspect unambiguously invokes his right to counsel, officers may clarify an ambiguous invocation. In the right-to-remain-silent context presented here, the officer’s testimony illustrated that he found the circumstances ambiguous. The re-initiation aspect of the circumstances rendered Marshall’s “no, sir” ambiguous, reasonably entitling the officer to clarify whether Marshall understood the question and really wanted to remain silent or not. Marshall v. State, No. AP-75,048, ___ S.W.3d ___ (Tex.Crim.App. December 20, 2000) (9:0).
3
Yes. On the State’s PDR, the Court of Criminal Appeals again reversed the Corpus Christi Court of Appeals (this case has been in perpetual appellate orbit). While placing identity in issue does not automatically authorize admission of extraneous offenses, such extraneous conduct need not be exactly like the charged offense to become admissible for identity purposes under TRE 404(b). The evidence must simply show a pattern of conduct sufficiently distinctive to constitute a signature. Here, myriad similarities between the three criminal acts existed: Each prostitute/victim worked along the Galveston sea wall; Page approached each victim posing as a police officer and driving a maroon car with a police radio squawking in the back; in each instance, this imposter threatened to arrest the victim unless she gratuitously performed oral sexual favors; and Page was identified in each case. On these facts, Judge Johnson’s unanimous decision upholds the trial court’s ruling because it was not outside the zone of reasonable disagreement, and the court of appeals was again reversed because no abuse of discretion occurred. Perpetrator Page now pounds plates in the penitentiary! Page v. State, Nos. PD-1744-05 & 1745-05, ___ S.W.3d ___, 2006 WL 3733256 (Tex.Crim.App. December 20, 2006) (subsequent history omitted) (9:0).
4
Almanza controls the review of charge error, and its preeminence was not usurped by Igo’s attempt to litigate his unpreserved charge error via a motion for new trial under TRAP Rule 21.3. Almanza construed article 36.19 of the Code of Criminal Procedure. Almanza v. State, 686 S.W.2d 157 (Tex.Crim.App. 1985) (opinion on rehearing). A statute cannot be superceded by a rule. More specifically, when the legislature enacts a statutory provision directing appellate treatment of an issue, a litigant may not employ appellate procedure to circumvent the statutory requirement. Although Igo unsuccessfully sought to characterize the charge error as the erroneous denial of a motion for new trial, appellate courts are statutorily mandated to review charging error in accordance with article 36.19 and, thus, Almanza. If Igo’s theory were correct, unpreserved jury charge error could be resurrected preservation-wise in a motion for new trial, contrary to the policy set out in article 36.19 and long-standing caselaw. Igo v. State, No. PD-0137-05, ___ S.W.3d ___, 2006 WL 3733215 (Tex.Crim.App. December 20, 2006) (7:2) (Meyers would have applied rule 21.3 and Holcombe dissented without opinion).
5
Yes to all three. As for the reasonable suspicion analysis, the officers acted on information gained from a reliable informant which revealed that Griffin was selling crack cocaine in a specifically described drug-trafficking area of town, and they found Griffin minutes later in that precise place. Additional specific and articulable facts, including the officers’ knowledge of Griffin’s past illegal drug activity and Griffin’s nervousness when law enforcement officers approached, corroborated the tip. Thus, the Terry detention was proper.
On the frisk issue, officers may reasonably believe that persons in the drug business are armed and dangerous. Relying on an objective standard, Judge Hervey determined that the facts permitted these officers to reasonably believe that the frisk was appropriate. Although the evidence revealed a dearth of subjective fear harbored by the officers and no basis to believe that Griffin had a propensity to carry weapons, neither undermined the frisk’s propriety, especially in light of Griffin’s furtive reach for his pocket when the officers approached. See O’Hara v. State, 27 S.W.3d 548, 551 (Tex.Crim.App. 2000) (officer not required to testify that he feared the defendant; the objective standard does not necessitate any testimony pertaining to the existence or absence of fear).
Finally, the court upheld this plain-feel seizure. When the officer frisked Griffin, the lawman immediately recognized the pocketed tubes as contraband based on his knowledge and experience with illegal drugs. Thus, the seizure was valid under the “plain-feel” exception to the 4th Amendment’s warrant requirement. See Minnesota v. Dickerson, 508 U.S. 366, 374 75 (1993) (where the contour of an object felt during a frisk made the object’s identity immediately apparent, the warrantless seizure was justified relying on the same considerations utilized in the plain-view context). Griffin v. State, No. PD-1036-05, ___ S.W.3d ___, 2006 WL 3733248 (Tex.Crim.App. December 20, 2006) (7:2).
6
No. Rule 403 did not thwart admission of the breath test in Gigliobianco’s trial. Judge Holcombe’s unanimous decision notes that relevant evidence may be excluded if the cost/benefit analysis of its admission illustrates that its probative value is not worth the problems of its admission. Judge Holcomb also delves into the meaning of individual phrases in Rule 403. Describing Rule 403’s enumerated concerns in detail, the opinion explains that a balance between these concerns and the inherent probative force of the complained-of testimony must be struck. Acknowledging the considerable probative value of the test result, the decision also noted that the State’s need for the evidence was significant because the videotape appeared somewhat positive for Gigliobianco.
Consideration of the other Rule 403 factors ensued. For example, no inflammatory nature of the breath test was discerned. Because the breath test results focused on the main issue at trial—intoxication—no confusion of the issues arose from its admission, even though the evidence required a fair amount of time to adduce. Because the technical supervisor’s testimony pointed out that the test results could not be used to determine Gigliobianco’s driving-time BAC, the jury was equipped to evaluate the probative force of the breath test results without being misled. Finally, presentation of this evidence did not consume an inordinate amount of time or repeat evidence already admitted.
After balancing the Rule 403 factors, the court concluded that the probative value of Gigliobianco’s breath test result was not substantially outweighed by any countervailing Rule 403 factors. Be aware that the court gratuitously stated that breath test results may not always be admissible in the face of a Rule 403 challenge, listing an example involving a test’s administration “several hours” after a stop where the results are at or below the legal limit. Gigliobianco v. State, ___ S.W.3d ___, 2006 WL 3733192 (Tex.Crim.App. December 20, 2006) (9:0).
7
No. Presiding Judge Keller’s opinion delves into a wealth of historical caselaw underpinning double jeopardy protections. Following this comprehensive history lesson and after consideration of various prosecution arguments cogently put forward by the State Prosecuting Attorney, the court overruled Bauder and held that Texas law now mandates that jeopardy protections bar retrial after mistrial only when a prosecutor intentionally provoked the defendant’s mistrial request. Texas law now parallels federal caselaw under Oregon v. Kennedy, 456 U.S. 667, 679 (1982).
Interesting aspects of this fascinating opinion include the court’s decision not to overturn prior caselaw holding that Texas’ double jeopardy provision protects against premature termination of trial. The court opined that, although not explicitly addressed by the Texas Constitution, caselaw has long held that retrial is barred after jeopardy’s attachment if a jury is discharged without a manifest necessity unless the defendant consents.
On another note, Judge Keller acknowledged the illogical dichotomy presented by allowing retrial after appellate reversal where a reckless prosecutor committed trial error but successfully obtained a conviction, versus the situation presented by Bauder where retrial is prohibited after a reckless prosecutor’s attempt to convict has been stymied by a mistrial. Judge Keller’s research discovered the erroneous nature of a previously voiced concern that proof of intent to cause a mistrial was impossibly high. In his concurring opinion in Bauder, Judge Baird wrote that he found no cases where the intentional mistrial standard in Kennedy had been met, yet Presiding Judge Keller stopped researching after she had uncovered numerous cases, with several decided prior to the Bauder decision. See Bauder v. State, 921 S.W.2d at 701 (Baird, J. concurring). Following a discussion of the problems presented in myriad cases when applying Bauder’s “messy jurisprudence” and an acknowledgment that Bauder was a flawed decision which this court has been unable to clarify, Bauder was expressly overruled. Ex parte Lewis, No. PD-0577-05, ___ S.W.3d ___, 2007 WL 57823 (Tex.Crim.App. January 10, 2007) (6:3).
Judge Cochran concurred to elaborate on other reasons for overruling Bauder, including its lack of historical analysis and its inability to be practically and consistently applied, rendering it a proper case to be jettisoned, stare decisis notwithstanding.
Judge Price dissented, joined by Meyers and Holcomb. Judge Meyers originally authored Bauder.
8
Yes. After first finding that §12.42 (c)(2)(B)(v) covered the sexual misconduct proscribed by the Delaware statute (because the Delaware crime’s elements are substantially similar to the Texas indecency prohibition), Judge Johnson’s unanimous opinion examined the finality requirement. The Delaware case involved a probated sentence that was not revoked. In general, a probated sentence is not considered final and cannot be used for enhancement purposes. However, §12.42(g)(1) carves out a specific exception to this rule when certain sexual offenders are subject to the automatic-life enhancement provisions; §12.42(g)(2) applies this exception to out-of-state prior sex offenses used for enhancement purposes. Thus, a prior foreign conviction for an offense substantially similar to the crimes enumerated under subsection 12.42(c)(2)(B) may give rise to an automatic life sentence as set out in 12.42(c)(2), because Texas’ own legislature has expressly permitted the use of certain convictions for enhancement, regardless of finality. Note that under these circumstances, it is unnecessary to consider the effect of finality in the foreign jurisdiction on enhancements in Texas. Ex parte White, Nos. AP 75308 & AP 75309, ___ S.W.3d ___, 2007 WL 57785 (Tex.Crim.App. January 10, 2007) (9:0).
9
Yes to both. Stuhler v. State, ___ S.W.3d ___, 2007 WL 162164 (Tex.Crim.App. January 24, 2007) (5:4). Judge Price’s opinion upholds the 2nd Court’s reversal for legal sufficiency, finding that a sufficiency analysis focuses on the degree of risk of death that the injury caused as it was inflicted. The court found that the doctor plainly testified that the boy was not at risk of death. Further, when analyzing evidence to assess whether an injury caused a substantial risk of death, courts should look at the degree of injury that the assaultive behavior in fact caused, not the degree of injury that might have resulted had the behavior persisted.
On the disjunctive charge issue, Article V, §13 of the Texas Constitution requires jury unanimity in all felony cases. The gravamen of the offense of injury to a child is not the conduct but the resulting injury. The legislature defined the offense of injury to a child according to the kind and degree of resultant injury; thus, the legislature intended that separate results spelled out in the various subsections are elemental, requiring jury unanimity. Accordingly, the trial court erroneously submitted the two alternative types of injury in the same application paragraph. The opinion acknowledges that sufficient evidence established serious mental injury. Nevertheless, reviewing this error on an egregious harm standard, harm occurred, given the State’s emphasis on the “serious bodily injury” part of the case, a fact which increased the risk of a non-unanimous verdict here.
Presiding Judge Keller’s four-vote dissent takes issue with both holdings. Along with Womack, Keasler, and Hervey, Judge Keller focused on different aspects of the pediatrician’s testimony, including the doctor’s assessment that, left untreated, the child could have died in two days. As for jury unanimity, Judge Keller would have found a lack of harm based upon the overwhelming nature of the mental injury evidence.
10
No. Judge Keasler criticizes the lower court’s “divide and conquer” or piecemeal approach to its probable cause review as contrary to the applicable totality-of-the-circumstances standard. In addition to misapplying the proper standard, the lower court did not deferentially review the trial judge’s implicit fact-findings. For instance, the appellate court failed to consider which facts were known and not known to the officers at the time of the search. After the truck driver was located, additional information placed the blame for the crash on him, not on Wiede’s possibly impaired driving, but that after-the-probable-cause-finding information was used by the court of appeals to undermine the propriety of the officer’s probable cause finding. Additionally, the Austin court had determined that the record lacked evidence relating to the connection between baggies and drugs, in part because the officer who seized the baggie did not testify. Judge Keasler looked to another officer’s testimony about his training and his identification of the bag’s contents as contraband in light of several officers’ collaborative efforts at the scene, which gave rise to an inference that the unidentified officer who conducted the search possessed knowledge regarding how drugs are commonly packaged. Considering the totality of the objective facts and circumstances of this case and granting the trial court its due deference, the Court of Criminal Appeals reversed the interim appellate court and reinstated the trial court’s judgment. Wiede v. State, No. PD-0748-05, ___ S.W.3d ___, 2007 WL 257624 (Tex.Crim.App. January 31, 2007) (7:2:0).