MOSLEY, DAMEON JAMARC v. the State of Texas

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. AP-77,094

DAMEON JAMARC MOSLEY, Appellant

v.

THE STATE OF TEXAS

ON DIRECT APPEAL FROM CAUSE NO. 114-0510-17
IN THE 114TH DISTRICT COURT
SMITH COUNTY

HERVEY, J., delivered the opinion of the Court in which KELLER, P.J.,
RICHARDSON, YEARY, NEWELL, WALKER, and MCCLURE, JJ., joined. WALKER, J.,
filed a concurring opinion in which RICHARDSON, J., joined. KEEL, J., concurred.

OPINION

In November 2019, a jury convicted Appellant of capital murder for fatally

shooting gas station employee Billy Stacks in the course of committing or attempting to

commit a robbery. TEX. PENAL CODE § 19.03(a)(2). Based on the jury’s answers to the

special issues set forth in Texas Code of Criminal Procedure Article 37.071, Sections 2(b)

and 2(e), the trial court sentenced Appellant to death. See TEX. CODE CRIM. PROC. art.
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37.071, § 2(g).1 Direct appeal to this Court is automatic. Art. 37.071, § 2(h). Appellant

raises thirteen points of error.2 We affirm the trial court’s judgment of conviction and

sentence of death.

I. BACKGROUND

Appellant and two co-conspirators, Kedarius Oliver and LaMarcus Hannah,

planned to commit a robbery at a Conoco Truck Express gas station in Tyler, Texas. On

January 28, 2017, Hannah drove the group to the Conoco in Appellant’s Dodge Avenger.

Appellant and Oliver exited the vehicle on a road behind the Conoco. Hannah stayed with

the car as the getaway driver.

Appellant approached the Conoco’s entrance on foot while Oliver acted as a

lookout. Once Oliver confirmed that no customers were in the front of the store,

Appellant entered at approximately 3:37 a.m. He was carrying a revolver and wearing a

black hoodie, dark jeans, a ski mask, and white gloves. Appellant approached the cash

register with his finger on the revolver’s trigger, jumped over the service counter, and

confronted Stacks, the clerk.3 During a brief struggle between the two men, the gun

1
Unless otherwise indicated, all subsequent citations in this opinion to “Articles” refer to
the Texas Code of Criminal Procedure.
2
Points of error one through seven raise challenges to Texas’s statutory death penalty
scheme and will be addressed together at the end of the opinion. We will begin our analysis with
point of error eight.
3
This conduct was captured on the station’s surveillance cameras. At trial, Appellant
acknowledged that he was the person depicted on the video.
MOSLEY – 3

discharged twice. Stacks was struck in the forehead and the left shoulder and fell to the

ground. After Stacks collapsed, Appellant took approximately $1,700 from the cash

register and fled the scene. Several individuals in a separate room at the back of the

Conoco heard the shooting and called 911. Stacks was conscious when paramedics

arrived but died the next day after being taken off life support. Appellant was indicted for

capital murder.

At trial, Appellant argued that, although he intended to rob Stacks at gunpoint, he

did not intend to kill him. Appellant claimed that the gun went off accidentally during the

struggle, so he was guilty only of felony murder. See TEX. PENAL CODE § 19.02(b)(3).

II. INEFFECTIVE ASSISTANCE OF COUNSEL

During the guilt phase of trial, the State presented the testimony of Emily

Stephenson, an ICU nurse who monitored Stacks while he was on life support. She

testified that Stacks’s wife, Cheryl, approached the nursing team with the decision to take

Stacks off of his ventilator and life-sustaining medications. The prosecutor asked

Stephenson to describe Cheryl’s demeanor when she made that decision. Stephenson

responded:

She was very -- very sad. I mean, it was just a very overall somber
environment. It was, of course, a very difficult decision to come to, to
decide that this is what Mr. Stacks would have wished, you know,
considering the outcome of his injury.

And she was overall very sad. And there was another [family] member that
was with her as well. He was very sad as well.
MOSLEY – 4

The prosecutor also asked Stephenson to describe the mood in the room as Stacks was

taken off of life support and pronounced dead. She testified:

It was very heartbreaking, and it was very sad. I remember Mrs. Stacks was
sitting beside him on the bedside. Like I said, she was holding his hand, and
she was telling him: It’s okay. You can let go. And overall, it was just a
very sad environment in the room.

Trial counsel did not contemporaneously object to this testimony.

In his eighth point of error, Appellant claims that his trial counsel was ineffective

for failing to object to Stephenson’s testimony. Specifically, Appellant asserts that

Stephenson’s testimony had no tendency to make more or less probable a fact of

consequence in determining Appellant’s guilt. See TEX. R. EVID. 401, 402; cf. Miller-El v.

State, 782 S.W.2d 892, 895 (Tex. Crim. App. 1990) (holding that the victim-impact

evidence at issue was inadmissable because it did not have a tendency to make more or

less probable the existence of any fact of consequence at the guilt stage of trial).

Appellant therefore argues that trial counsel had a duty to object to Stephenson’s

testimony as irrelevant victim-impact evidence.

To establish ineffective assistance, an appellant must show that counsel’s

performance was deficient and that the deficient performance prejudiced the defense.

Strickland v. Washington, 466 U.S. 668, 687 (1984). We have held that “‘[d]irect appeal

is usually an inadequate vehicle for raising such a claim . . . .’” and that the claim must be

“‘firmly founded in the record’ and ‘the record . . . affirmatively demonstrate[s] the

meritorious nature of the claim.’” Menefield v. State, 363 S.W.3d 591, 592 (Tex. Crim.
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App. 2005) (quoting Goodspeed v. State, 187 S.W.3d 390 (Tex. Crim. App. 2005)).

Assuming without deciding that trial counsel’s failure to object constituted

deficient performance,4 Appellant has not established prejudice. Appellant contends that

the admission of Stephenson’s victim-impact testimony was prejudicial because there is a

reasonable probability that the testimony pushed the jury toward a finding of guilt on the

more serious offense. He claims that, but for the admission of victim-impact evidence, the

jury would have convicted him of felony murder instead of capital murder.

The record does not support Appellant’s argument. For the jury to find Appellant

guilty of only felony murder, the jury would need to find that Appellant had no intent to

kill, but the challenged testimony had no bearing on whether Appellant had the intent to

kill, so its probative value is weak. We conclude Appellant was not prejudiced because

there is no reasonable probability that the outcome of the trial would have been different

but for the admission of Stephenson’s testimony. Because Appellant has not shown

prejudice, we overrule Appellant’s eighth point of error.

III. IMPROPER JURY ARGUMENT

In his ninth point of error, Appellant claims that the prosecutor engaged in

improper jury argument when he injected his personal opinion of a witness’s credibility.

In Appellant’s case in chief, Dr. Christi Compton opined that Appellant met the criteria

4
There was an exchange between trial counsel and the court outside the jury’s presence
following Stephenson’s testimony in which counsel described her failure to object as “my bad”
and indicated that she intended to object to similar testimony in future exchanges. These
circumstances suggest that counsel had no strategic basis for failing to object.
MOSLEY – 6

for mild intellectual disability. The State’s expert, Dr. Timothy Proctor, concluded that

Appellant did not meet the definition of intellectual disability. During closing argument at

the punishment phase, the prosecutor repeated Proctor’s conclusion and told the jury:

The reason we love Dr. Proctor, the reason we called him, and the reason
you can trust what he tells you is, look, if he’s trying to bend the answers
for me and trying to help me as much as possible, then he’s going to come
in here and try to work some number magic like Dr. Compton did . . . . Dr.
Proctor doesn’t do that. He comes in and tells it like it is, whether it’s good
for me or bad for me.

In his later argument, the prosecutor repeated that Dr. Proctor would “tell it like it is.”

Trial counsel did not object to either instance.

Appellant asserts that, by claiming to “love” the witness, saying that the witness

“tells it like it is,” and arguing that the jury could “trust him,” the prosecutor injected his

personal opinion of the witness’s credibility. Appellant argues that this undermined the

jury’s role as the sole arbiter of credibility. Moreover, he complains that this was

improper jury argument since the statements implied to the jury that there must be

something outside the evidence presented that made Proctor’s testimony more credible

than Compton’s. See United States v. Young, 470 U.S. 1, 18 (1985).

A prosecutor may not inject his personal opinion of a witness’s credibility during

closing argument. Menefee v. State, 614 S.W.2d 167, 168 (Tex. Crim. App. 1981) (op. on

2d reh’g). However, this Court has previously held, and recently reaffirmed, that the right

not to be subjected to improper jury argument is forfeitable by inaction. See Cockrell v.

State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996); see also Hernandez v. State, 538
MOSLEY – 7

S.W.3d 619, 622 (Tex. Crim. App. 2018).

Appellant acknowledges that his trial counsel did not object to the statements, but

he argues that this Court should adopt the federal plain-error standard for this type of

error, and reverse even absent an objection, because of the weight given to a prosecutor’s

statements. See United States v. Gracia, 522 F.3d 597, 600 (5th Cir. 2008). Appellant’s

arguments do not persuade us to revisit Cockrell. Because Appellant did not object to this

argument at trial, he forfeited the ability to complain about it on appeal. We overrule

Appellant’s ninth point of error.

IV. LAY OPINION TESTIMONY

In his tenth point of error, Appellant claims that the trial court erred in overruling

his objection to lay witness opinion testimony. See TEX. R. EVID. 701.5 He alleges that the

State elicited improper lay witness testimony from Detective Ron Rathbun, the lead

investigator on the case, in the following colloquy:

Q. Detective Rathbun, in your investigation, did you find any evidence in
your opinion of the intent to kill; that [Appellant], at the time he pulled the
trigger, had the intent to kill Billy Stacks?

[DEFENSE COUNSEL]: Objection, Your Honor. Calls for an
opinion -- or calls for him to be an expert.

THE COURT: Overruled as to this question.

Q. (By [the State]) What evidence did you find of an intent to -- to kill Mr.
Stacks?

5
Unless otherwise indicated, all subsequent citations in this section to “Rules” refer to
the Texas Rules of Evidence.
MOSLEY – 8

A. He -- he went in the store, the Conoco. He -- he -- he dressed in a way
that he hid himself over to -- to hide his identity. He had a loaded gun. The
video shows that he had his finger on that gun. And he approached Mr.
Stacks by jumping over the counter and -- and coming up on Mr. Stacks. I
just -- I guess what I’m saying is, it doesn’t surprise me that -- that he killed
him because of what he did that night when he walked through that door --
or ran through that door and did what he did.

Q. He went in with a loaded gun. That’s the first thing.

A. Yes, sir.

Q. You said -- didn’t stay on the customer side of the counter and ask for
the money, right? He jumped it.

A. Yes.

Q. Mr. Stacks, I guess he’s back in the counter when the video starts. If I
understand you right, [Appellant] is the one who approaches Mr. Stacks. He
comes after him, correct?

A. Correct.

Rule 701 states, “If a witness is not testifying as an expert, testimony in the form

of an opinion is limited to one that is: (a) rationally based on the witness’s perception; and

(b) helpful to clearly understanding the witness’s testimony or to determining a fact in

issue.” Id. Appellant contends that, because Rathbun’s opinion was based entirely upon

his viewing of surveillance footage, it was not “based on the witness’s perception” of the

events in question. Therefore, Appellant argues that Rathbun’s testimony was

inadmissible under Rule 701(a). Appellant also complains that the second requirement for

lay witness opinion under Rule 701(b) was not met because the jury viewed the same

surveillance video and was in the same position as Rathbun to draw its own conclusions
MOSLEY – 9

about Appellant’s intent. The State counters that Appellant’s objection at trial did not

preserve a complaint as to Rule 701(a) or (b) for appellate review. We agree that

Appellant did not adequately preserve either complaint.

Preservation of error is governed by Rule 33.1 of the Texas Rules of Appellate

Procedure. See Pena v. State, 285 S.W.3d 459, 463 (Tex. Crim. App. 2009). To preserve

a complaint for appellate review, an objection must state the grounds for the ruling sought

with sufficient specificity to make the trial court aware of the complaint. TEX. R. APP. P.

33.1(a). The complaining party bears the responsibility of clearly conveying his particular

complaint to the trial judge. See Pena, 285 S.W.3d at 464. To avoid forfeiting a complaint

on appeal, the party must “let the trial judge know what he wants, why he thinks he is

entitled to it, and to do so clearly enough for the judge to understand him at a time when

the judge is in the proper position to do something about it.” Id. (quoting Lankston v.

State, 827 S.W.2d 907, 909 (Tex. Crim. App. 1992)). This gives the trial judge and the

opposing party an opportunity to correct the error. Id.

Appellant’s objection that the prosecutor’s question “call[ed] for an opinion -- or

call[ed] for [Rathbun] to be an expert” was ambiguous. Even in context, the objection

failed to inform the trial court that Appellant was complaining that neither component for

lay opinion testimony had been met. Appellant’s lack of clarification prevented the trial

court from addressing the merits of a Rule 701 objection at trial. Therefore, he did not

preserve Rule 701 complaints for appellate review. We overrule Appellant’s tenth point
MOSLEY – 10

of error.

V. INTELLECTUAL DISABILITY DETERMINATION

The defense filed a pretrial motion asking for a separate trial to determine whether

Appellant had an intellectual disability that would render him ineligible for the death

penalty. See Atkins v. Virginia, 536 U.S. 304, 321 (2002); see also Moore v. Texas, 581

U.S. 1, 12 (2017). In his eleventh point of error, Appellant complains that the trial court

erroneously denied this motion.

In its ruling, the trial court cited Petetan v. State, 622 S.W.3d 321 (Tex. Crim.

App. 2021). There, this Court held that the issue of intellectual disability could not be

litigated pretrial because it is a sentencing issue and “sentencing issues are generally not

ripe for review before a finding of guilt.” Id. at 334. Appellant now argues that Petetan

was wrongly decided because the continued lack of statutory guidance for intellectual

disability determinations creates an unconstitutional risk that someone with an intellectual

disability will be executed. See Atkins, 536 U.S. at 321; see also Moore, 581 U.S. at 6.

Appellant asks us to overturn Petetan and hold that the Eighth Amendment requires a

separate jury to determine intellectual disability independent of guilt.

We are not persuaded to revisit Petetan. Because there is no requirement in Texas

law that the intellectual disability issue be resolved pretrial, the trial court did not abuse

its discretion in denying Appellant’s motion. We overrule Appellant’s eleventh point of

error.
MOSLEY – 11

VI. JURY CHARGE ERROR

In points of error twelve and thirteen, Appellant asserts that he was harmed by

errors in the court’s punishment charge. A claim of jury charge error is reviewed using

the standard set out in Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985)

(op. on reh’g). See Barrios v. State, 283 S.W.3d 348, 350 (Tex. Crim. App. 2009).

A. Order of Special Issues

The jury charge submitted the special issues in the following order: (1) the future-

dangerousness instruction; (2) the mitigation instruction; and (3) the intellectual disability

instruction. At the charge conference, Appellant objected to the order of the special issues

and argued that the intellectual disability issue should be submitted in the charge first.

The trial court overruled the objection.

In his twelfth point of error, Appellant complains that the trial court erred in

denying his re-ordering request. He argues that the intellectual disability issue should

come first because a finding of intellectual disability would preclude the imposition of the

death penalty and moot out the two remaining special issues. Additionally, he asserts that

submitting the intellectual disability issue after the mitigation issue might encourage the

jury to disregard the mitigating effect of his intellectual disability evidence and could

suggest that it did not have great mitigation value in the first place.

Appellant directs our attention to two trial proceedings where the trial courts

submitted the intellectual disability issue first. See Brownlow v. State, No. AP-77,068,
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2020 WL 718026 (Tex. Crim. App. Feb. 12, 2020) (not designated for publication);

Thomas v. State, No. AP-77,047, 2018 WL 6332526 (Tex. Crim. App. Dec. 5, 2018) (not

designated for publication). However, these cases are distinguishable because the trial

courts submitted the intellectual disability issue first at their own discretion. No authority

required them to do so. Accordingly, the trial court in this case did not err in submitting

the intellectual disability issue third. We overrule Appellant’s twelfth point of error.

B. Instruction on Evidence to be Considered

Appellant’s thirteenth point of error argues that two charge errors regarding the

intellectual disability special issue resulted in a capricious and arbitrary imposition of the

death penalty in violation of the Eighth Amendment. See Atkins, 536 U.S. at 321 (noting

that the Eighth Amendment bars the execution of intellectually disabled offenders).

Appellant first argues that the trial court erred by refusing to instruct the jury to

consider only “that evidence presented to the jury by the experts” when considering the

intellectual disability special issue. Appellant contended at trial that the facts of the case

were irrelevant to the intellectual disability issue and that, if the jurors were permitted to

consider the evidence from both phases of trial, they would take unconstitutional factors

into consideration.6 See Moore, 581 U.S. at 6 (noting that the adaptive functionality

factors identified in Ex parte Briseno, 135 S.W.3d 1 (Tex. Crim. App. 2004), created an

6
In multiple parts of his brief, Appellant refers to the “evidence presented by the experts,”
but on the last page of his brief, he refers to the failure to limit the evidence the jury could
consider to “psychological testing.” We understand Appellant to use the terms synonymously.
MOSLEY – 13

unacceptable risk that a person with an intellectual disability would be executed in

violation of the Eighth Amendment). Appellant now asserts that a jury restricted to

considering only evidence presented by experts would result in an intellectual disability

determination free from constitutional defect because experts would not rely on

disavowed factors in determining intellectual ability.

“The legal determination of intellectual disability is distinct from a medical

diagnosis, but it is informed by the medical community’s diagnostic framework.” Hall v.

Florida, 572 U.S. 701, 721 (2014); see also Kansas v. Crane, 534 U.S. 407, 413 (2002)

(noting that the science of psychiatry informs but does not control ultimate legal

determinations). Therefore, expert input is not the only factor that can be considered.7 The

jury may also consider guilt and punishment evidence in reaching an intellectual disability

determination. See Petetan, 622 S.W.3d at 333-34. Indeed, examining the details of the

offense may be necessary when evaluating the strength and reliability of the evidence

presented by the experts regarding intellectual disability. Id. at 334. Because the jury is

not required to limit its intellectual disability determination to a review of only the

evidence presented by the experts, the trial court did not violate the Eighth Amendment

when it denied the request, and the jury charge was not erroneous on that basis.

7
The State points out that the experts at punishment relied on lay information in forming
their opinions, such as information gathered from family members, and it argues that an
instruction limiting the jury’s consideration to only evidence presented by the experts would have
been an improper comment on the weight of the evidence. We need not resolve that argument,
however, given that we conclude the trial court did not violate the Eighth Amendment when it
refused to give the instruction.
MOSLEY – 14

Appellant next argues that the instructions in the jury charge were inconsistent. At

the charge conference, Appellant objected to a portion of the intellectual disability

instruction. It stated: “[W]hen deliberating on Special Issue No. 3, submitted in this

Charge, the jury shall consider all the evidence admitted in the guilt or innocence stage or

the punishment stage of this trial.” Appellant argued that this language should be removed

and replaced with an instruction to consider only evidence presented by the experts in

making an intellectual disability determination. The State responded that, even if

Appellant’s proposed changes were made, the general instructions for the special issues

would still instruct the jury to consider evidence from both the guilt and punishment

phases of trial. The general instructions read as follows:

In determining your answers to the questions, or “Special Issues,” submitted
to you, you shall consider all the evidence submitted to you in this whole
trial. This includes the evidence admitted during the first stage of the trial
concerning the defendant’s guilt as well as any evidence admitted during
this punishment stage in which you are now called upon to determine the
answers to Special Issues submitted to you by the Court.

Following this exchange, Appellant maintained his objection regarding the

wording of special issue number three and did not seek changes to any portion of the

general instruction. The trial court sustained the first part of Appellant’s objection and

removed the language directing the jury to “consider all the evidence admitted in the guilt

or innocence stage or the punishment stage of this trial” from the third special issue.

However, the court again denied the request for an instruction that specifically directed

the jury to consider only evidence presented by the experts. Appellant argues that the
MOSLEY – 15

resulting charge was erroneous because it was unclear as to whether the jury should

consider evidence from the guilt phase of trial when answering the intellectual disability

special issue. He contends that the fact that the general instruction was left in the jury

charge does not matter because special issue number three did not instruct the jury about

what evidence to consider in resolving that issue. Appellant concludes that,

“[h]ypothetically, this places the jury in an awkward if not, inconsistent position.”8 We

disagree and conclude that there was no error because the jury charge was clear.

In the final version of the jury charge, special issue number three was silent about

what evidence the jury should consider. In the absence of a specific instruction, the jury

was guided by the general instruction, which ordered the jury to “consider all the

evidence submitted to you in this whole trial . . . [including] the evidence admitted during

the first stage of the trial concerning the defendant’s guilt as well as any evidence

admitted during this punishment stage.” The general instruction was clear, Appellant does

not complain that the general instruction was incorrect or that it should have been

removed, and Appellant directs us to no authority that requires an instruction informing

the jury what evidence it can consider when deciding the intellectual disability special

issue.9 Further, as discussed above, the jury was not required to limit its consideration of

8
Even if we concluded that the jury charge was erroneous, a defendant is not harmed
under Almanza if the alleged harm is only hypothetical or theoretical. Arline v. State, 721 S.W.3d
348, 351 (Tex. Crim. App. 1986).
9
Had there been no general instruction in the final charge, Appellant’s claim might have
been stronger.
MOSLEY – 16

the intellectual disability issue to only evidence presented by the experts. See Petetan, 622

S.W.3d at 333-34. Rather, the jury could look to evidence introduced at the guilt and

punishment phases of trial. Id. Therefore, the jury charge was not erroneous, and we

overrule Appellant’s thirteenth point of error.

VII. CHALLENGES TO THE DEATH PENALTY SCHEME

In points of error one through seven, Appellant raises a variety of challenges to

Texas’s statutory death penalty scheme. He complains that the trial court erred by

overruling motions to: (1) declare Art. 37.071 unconstitutional; (2) declare Texas’s

statutory capital sentencing statute unconstitutional because it allows juries to decide

future dangerousness based solely on the factors of the case; (3) declare the “10-12 Rule”

unconstitutional; (4) hold unconstitutional Art. 37.071 § 2(e) and (f) for failing to require

that mitigation be considered; (5) preclude the death penalty as a sentencing option and

declare Art. 37.071 unconstitutional in light of Ring v. Arizona; (6) declare Texas’s

statutory capital sentencing scheme unconstitutional and preclude imposition of the death

penalty; and (7) declare Texas’s statutory death penalty scheme unconstitutional.

With regard to each claim, Appellant recognizes that his arguments in these points

of error have been routinely denied by this Court, but he asserts that he must make them

to exhaust his state claims so that he can pursue federal relief. Because Appellant

provides only conclusory arguments in support of these claims, they are inadequately

briefed and we need not address them. See TEX. R. APP. P. 38.1(i). We also note, as
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Appellant states, that we have rejected these claims in previous cases,10 and we decline to

revisit them now. Appellant’s points of error one through seven are overruled.

VIII. CONCLUSION

Finding no reversible error, we affirm the trial court’s judgment of conviction and

sentence of death.

Delivered: April 12, 2023

Publish

10
See Jenkins v. State, 493 S.W.3d 583, 613-18 (Tex. Crim. App. 2016) (affirming the
constitutionality of the 10-12 rule; rejecting the need to define “probability,” “criminal acts of
violence,” “militates,” and “continuing threat to society”); Davis v. State, 313 S.W.3d 317, 354-
55 (Tex. Crim. App. 2010) (rejecting the need to define “personal moral culpability,” “moral
blameworthiness,” and other terms; rejecting the contention that the mitigation special issue is
unconstitutional by failing to assign a burden of proof); Williams v. State, 301 S.W.3d 675, 694
(Tex. Crim. App. 2009) (rejecting the contention that the death penalty, as presently administered
in Texas, amounts to cruel and unusual punishment); Russeau v. State, 291 S.W.3d 426, 437
(Tex. Crim. App. 2009) (rejecting the contention that the death penalty scheme is
unconstitutional for failing to provide a meaningful sufficiency review of the mitigation issue);
Saldano v. State, 232 S.W.3d 77, 105 (Tex. Crim. App. 2007) (rejecting the contention that the
statutory punishment instructions fail “to provide a rational basis to permit a discretionary grant
of mercy based on mitigating circumstances”); Roberts v. State, 220 S.W.3d 521, 534 (Tex.
Crim. App. 2007) (rejecting the contention that the mitigation special issue unconstitutionally
narrowed mitigating evidence to that which reduces moral blameworthiness).