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Bobby Wayne WOODS

 
 
 
 
 

 

 

 

 
 
 
Classification: Murderer
Characteristics: Kidnapping - Rape
Number of victims: 1
Date of murder: April 30, 1997
Date of arrest: Same day
Date of birth: October 11, 1965
Victim profile: Sarah Patterson, 11 (his ex-girlfriend's daughter)
Method of murder: Stabbing with knife
Location: Hood County, Texas, USA
Status: Executed by lethal injection in Texas on December 3, 2009
 
 
 
 
 
 

photo gallery

 
 
 
 
 

United States Court of Appeals
For the Fifth Circuit

 

opinion 2002

opinion 2003

opinion 2007

 
 
 
 
 
 

Name

TDCJ Number

Date of Birth

Woods, Bobby Wayne

999270

10/11/65

Date Received

Age (when Received)

Education Level

05/29/98

32

7 years

Date of Offense

Age (at the Offense)

County

04/30/97

31

Llano (on change of venue from Hood County)

Race

Gender

Hair Color

White

Male

Blonde

Height

Weight

Eye Color

5-7

231

Blue

Native County

Native State

Prior Occupation

Tarrant

Texas

Unknown

Prior Prison Record

None

Summary of incident


On April 30, 1997, Woods entered the home of his ex-girlfriend through an open window. 

Woods sexually assaulted the 11 year old white female, then abducted her and her  9-year-old male brother.

Woods severely beat the 9-year-old boy about the head, resulting in serious injury, and cutting the throat of the 11-year-old victim, resulting in her death.
 

Co-defendants

None

Race and Gender of Victim

white female

 
 
 
 
 
 

Summary:

In the early morning hours Woods went to the home of his ex-girlfriend, Schwana Patterson, 35, who had had kicked him out a few days earlier. Her two children, 11-year-old Sarah and 9-year-old Cody, were sleeping inside.

Woods crawled through an open window into the children's bedroom. He grabbed Sarah's foot and began beating her chest, then sexually molested her. Woods then forced both children to leave through the window in their nightclothes, put them in his car, and drove to a cemetery.

There, he beat and stomped Cody on the head and strangled him. With Cody unconscious, Woods then drove away with Sarah. Cody survived. Based on Cody's statement, police found Woods and asked him where Sarah was, hoping to find her alive. Woods answered, "You will not find her alive. I cut her throat." He then led them to her body.

Citations:

Woods v. State, 14 S.W.3d 445 (Tex.Crim.App. 2000). (Direct Appeal)
Woods v. Cockrell, 307 F.3d 353 (5th Cir. 2002). (Habeas)
Woods v. Quarterman, 493 F.3d 580 (5th Cir. 2007). (Successive Habeas)

Final/Special Meal:

Chicken sandwiches, hamburgers and half a pound of chocolate cake. Woods only ate "a few bites of this and that," according to a Huntsville prison spokeswoman. The meal was served at 4 p.m.-- about two hours before Woods was scheduled to die.

Final Words:

"Bye. I'm ready."

ClarkProsecutor.org

 
 

Texas Department of Criminal Justice

Woods, Bobby Wayne
Date of Birth: 10/11/65
DR#: 999270
Date Received: 5/29/98
Education: 7 years
Occupation: Unknown
Date of Offense: 4/30/97
County of Offense: Llano
Native County: Tarrant
Race: White
Gender: Male
Hair Color: Blonde
Eye Color: Blue
Height: 5' 07"
Weight: 231

Summary of incident: On April 30, 1997, Woods entered the home of his ex-girlfriend through an open window. Woods sexually assaulted her 11 year old daughter, then abducted her and her 9-year-old brother. Woods severely beat the 9-year-old boy about the head, resulting in serious injury, and cutting the throat of the 11-year-old victim, resulting in her death.

Co-defendants: None.

Prior Prison Record: None.

 
 

Texas Attorney General

Thursday, October 16, 2009

Media Advisory: Bobby Woods scheduled for execution

AUSTIN – Texas Attorney General Greg Abbott offers the following information about Bobby Wayne Woods, who is scheduled to be executed after 6 p.m. on October 23, 2008. In May of 1998, Woods was tried, convicted, and sentenced to death for the kidnapping and murder of eleven-year-old Sarah Patterson in Granbury. Due to pre-trial publicity the case was tried in Llano County.

FACTS OF THE CRIME

On April 30, 1997, Woods entered the home of his former girlfriend through an open bedroom window and abducted her children, 11-year-old Sarah and nine-year-old Cody, driving them to grave yard, where he beat and stomped Cody into unconsciousness. Woods then drove Sarah to secluded area where he raped her and cut her throat, resulting in her death. Woods confessed to the kidnapping and murder and led police to Sarah’s body.

PROCEDURAL HISTORY

Jun. 4, 1997–A Hood County grand jury indicted Woods for capital murder in the kidnapping and slaying of Sarah Patterson.
May 28, 1998 – The trial court sentenced Wood to death, after a jury found him guilty of capital murder.
Sep. 15, 1999 – Woods filed a state writ application in the trial court.
Jun. 14, 2000 – Woods’ conviction and sentence were affirmed on direct appeal by the Texas Court of Criminal Appeals.
Sep. 13, 2000 – The Court of Criminal Appeals denied Woods’ application for state habeas relief.
Feb. 20, 2001 – The U.S. Supreme Court denied both Woods’ certiorari petitions - direct appeal and state habeas.
Dec. 11, 2000 – Woods filed a petition for writ of habeas corpus in a federal district court.
Feb. 8, 2002 – The federal district court denied Woods’ habeas petition.
Feb. 24, 2003 – The Fifth U.S. Circuit Court of Appeals partially denied Woods’ request for a certificate of appealability and otherwise affirmed the district court’s judgment. Woods did not seek certiorari review of this decision.
Apr. 8, 2003 – Woods filed a subsequent state habeas corpus application in the Texas Court of Criminal Appeals.
May 21, 2003 – The Court of Criminal Appeals remanded Woods’ case to the trial court for a determination of his Atkins claim.
Apr. 27, 2005 – The Court of Criminal Appeals adopted the trial court’s findings and denied relief to Woods.
Sep. 27, 2005 –Woods lodged a successive federal habeas petition in federal district court containing his Atkins claims.
Oct. 13, 2005 – Woods filed a motion for authorization to file successive habeas in the Fifth U.S. Circuit Court of Appeals.
Dec. 1, 2005 – The Fifth Circuit Court permitted Woods to file a successive petition containing his Atkins claims.
May 16, 2006 – The district court denied relief on Woods’ successive petition.
Jul. 23, 2007 – The Fifth Circuit Court denied Woods’ request for a COA on his successive habeas petition.
Jan. 17, 2008 – Woods was set for execution but the date was withdrawn due to the temporary moratorium.
Oct. 15, 2007 – Woods filed a motion to stay the execution and a writ of prohibition in the Texas Court of Criminal Appeals.
Sep. 10, 2008 – Woods state court litigation was dismissed by the Court of Criminal Appeals.
Oct. 23, 2008 – Woods is scheduled for execution.

 
 

Texas executes killer of 11-year-old girl

Hunstville Item Online

Associated Press - December 04, 2009

— A 44-year-old Texas man was executed Thursday evening for raping and murdering an 11-year-old girl, despite pleas from his attorneys he was too mentally impaired to qualify for capital punishment.

Bobby Wayne Woods received lethal injection about a half-hour after the U.S. Supreme Court refused to halt his punishment, which was delayed briefly until the high court ruled in his case. His lawyers had argued Woods was mentally impaired, making him ineligible for execution, and that previous appeals to spare Woods’ life were unsuccessful because of shoddy work by his lawyer at the time.

Tests administered to Woods put his IQ anywhere from the 60s to the 80s. An IQ of 70 is considered the threshold for mental impairment.

Woods was convicted of capital murder and sentenced to die for the April 1997 slaying of Sarah Patterson, his ex-girlfriend’s daughter. She and her 9-year-old brother were snatched from their home in Granbury, near Fort Worth. Sarah’s throat was slit with a knife. Her brother was beaten and left for dead but survived to testify against Woods. Asked by a warden if he had a final statement, Woods lifted his head from the pillow on the death chamber gurney and replied: “Bye. I’m ready.” Eight minutes later, at 6:40 p.m. CST, he was pronounced dead.

“I’m not a person that likes harm done to anybody, but I believe in justice being done,” Larry Patterson said after watching his daughter’s killer die. “She had no choice. She didn’t get a second chance.”

The execution was the 24th and last scheduled for this year in Texas, where 18 inmates received lethal injection in 2008 in the nation’s busiest capital punishment state. At least five already are scheduled for 2010, including two in January.

In the appeal to the Supreme Court, Woods’ lawyer, University of Texas law professor Maurie Levin, argued the performance of Woods’ state-appointed attorney during earlier appeals was “so egregious” the prisoner’s mental impairment claims could not be accurately assessed. She pointed out the attorney has since been removed from a list of lawyers eligible to represent condemned inmates but by the time she got the case, “the damage had been done.”

State attorneys told the high court no constitutional right exists for an inmate to have an effective appeals attorney and Woods’ claim of due-process violations “does not change that fact.” They also argued Woods’ mental impairment claims already have been rejected by the courts and the last-ditch appeals improperly duplicated those rejections. Woods blamed Patterson’s death on a cousin who subsequently committed suicide. He said injuries to her brother were the result of an accident.

“We went walking around graveyards, horsing around by a fence,” Woods told The Associated Press last year from death row. “Cody jumped on my back and hit a fence post. “I guess I panicked.”

At his trial, Cody Patterson testified Woods attacked him, and prosecutors presented a mountain of evidence implicating Woods in Sarah’s killing, including signed confessions.

“I put this behind me a lot of years ago,” said Cody Patterson, now 21, who stood outside the prison and chose not to see Woods die. “It has been a long time coming. I’m glad to know it’s done. I knew it was going to be done sooner or later. “I seen his picture... That’s all I wanted to see,” he said, adding that he recovered from his injuries and that nightmares about the attack have stopped, but that he still had “the scars on the back of my head.”

Richard Hattox, the former Hood County district attorney who prosecuted Woods, said authorities also had DNA evidence of the girl’s blood on Woods’ knife, her blood on his shoe and his DNA on her panties, which were found in Woods’ car. “How could there be little doubt?” Hattox said Wednesday. “Every bit of his appeal effort has been expended toward his claim of retardation. And there’s no proof he is retarded.”

 
 

Granbury girl's killer executed, despite claims of mental impairment

Dallas Morning News

December 4, 2009

HUNTSVILLE – A 44-year-old Texas man was executed Thursday evening for raping and murdering an 11-year-old girl, despite pleas from his attorneys he was too mentally impaired to qualify for capital punishment.

Bobby Wayne Woods received lethal injection about a half-hour after the U.S. Supreme Court refused to halt his punishment, which was delayed briefly until the high court ruled in his case. His lawyers had argued Woods was mentally impaired, and that previous appeals to spare Woods' life were unsuccessful because of shoddy work by his lawyer at the time.

Tests administered to Woods put his IQ anywhere from the 60s to the 80s. An IQ of 70 is considered the threshold for mental impairment.

Woods was convicted of capital murder and sentenced to die for the April 1997 slaying of Sarah Patterson, his ex-girlfriend's daughter. She and her 9-year-old brother were snatched from their home in Granbury, near Fort Worth. Sarah's throat was slit with a knife. Her brother was beaten and left for dead but survived to testify against Woods.

Asked by a warden if he had a final statement, Woods lifted his head from the pillow on the death chamber gurney and replied: "Bye. I'm ready." Eight minutes later, at 6:40 p.m., he was pronounced dead.

In the appeal to the Supreme Court, Woods' lawyer, University of Texas law professor Maurie Levin, argued the performance of Woods' state-appointed attorney during earlier appeals was "so egregious" the prisoner's mental impairment claims could not be accurately assessed.

State attorneys told the high court no constitutional right exists for an inmate to have an effective appeals attorney, and Woods' claim of due-process violations "does not change that fact." They also argued Woods' mental impairment claims already have been rejected by the courts and the last-ditch appeals improperly duplicated those rejections.

Woods blamed Patterson's death on a cousin who subsequently committed suicide. He said injuries to her brother were the result of an accident. At his trial, Cody Patterson testified Woods attacked him, and prosecutors presented a mountain of evidence implicating Woods in Sarah's killing, including signed confessions. "I put this behind me a lot of years ago," said Cody Patterson, now 21, who stood outside the prison and chose not to see Woods die. "It has been a long time coming. I'm glad to know it's done. "I seen his picture... That's all I wanted to see," he said, adding that he recovered from his injuries and that nightmares about the attack have stopped, but that he still had "the scars on the back of my head."

Richard Hattox, the former Hood County district attorney who prosecuted Woods, said authorities had DNA evidence of the girl's blood on Woods' knife, her blood on his shoe and his DNA on her panties, which were found in Woods' car.

 
 

Inmate executed for raping, killing 11-year-old

By Michael Graczyk - Associated Press

The Houston Chronicle

Dec. 4, 2009

HUNTSVILLE — A 44-year-old Texas man was executed on Thursday evening for raping and murdering an 11-year-old girl, despite pleas from his attorneys he was too mentally impaired to qualify for capital punishment.

Bobby Wayne Woods received lethal injection about a half-hour after the U.S. Supreme Court refused to halt his punishment, which was delayed briefly until the high court ruled in his case. His lawyers had argued Woods was mentally impaired, making him ineligible for execution, and that previous appeals to spare Woods' life were unsuccessful because of shoddy work by his lawyer at the time.

Tests administered to Woods put his IQ anywhere from the 60s to the 80s. An IQ of 70 is considered the threshold for mental impairment.

Woods was convicted of capital murder and sentenced to die for the April 1997 slaying of Sarah Patterson, his ex-girlfriend's daughter. She and her 9-year-old brother were snatched from their home in Granbury, near Fort Worth. Sarah's throat was slit with a knife. Her brother was beaten and left for dead but survived to testify against Woods.

Asked by a warden if he had a final statement, Woods lifted his head from the pillow on the death chamber gurney and replied: “Bye. I'm ready.” Eight minutes later, at 6:40 p.m. CST, he was pronounced dead. “I'm not a person that likes harm done to anybody, but I believe in justice being done,” Larry Patterson said after watching his daughter's killer die. “She had no choice. She didn't get a second chance.”

The execution was the 24th and last scheduled for this year in Texas, where 18 inmates received lethal injection in 2008 in the nation's busiest capital punishment state. At least five already are scheduled for 2010, including two in January.

In the appeal to the Supreme Court, Woods' lawyer, University of Texas law professor Maurie Levin, argued the performance of Woods' state-appointed attorney during earlier appeals was “so egregious” the prisoner's mental impairment claims could not be accurately assessed. She pointed out the attorney has since been removed from a list of lawyers eligible to represent condemned inmates but by the time she got the case, “the damage had been done.”

State attorneys told the high court no constitutional right exists for an inmate to have an effective appeals attorney and Woods' claim of due-process violations “does not change that fact.” They also argued Woods' mental impairment claims already have been rejected by the courts and the last-ditch appeals improperly duplicated those rejections.

Woods blamed Patterson's death on a cousin who subsequently committed suicide. He said injuries to her brother were the result of an accident. “We went walking around graveyards, horsing around by a fence,” Woods told The Associated Press last year from death row. “Cody jumped on my back and hit a fence post. “I guess I panicked.”

At his trial, Cody Patterson testified Woods attacked him, and prosecutors presented a mountain of evidence implicating Woods in Sarah's killing, including signed confessions.

“I put this behind me a lot of years ago,” said Cody Patterson, now 21, who stood outside the prison and chose not to see Woods die. “It has been a long time coming. I'm glad to know it's done. I knew it was going to be done sooner or later. “I seen his picture... That's all I wanted to see,” he said, adding that he recovered from his injuries and that nightmares about the attack have stopped, but that he still had “the scars on the back of my head.”

Richard Hattox, the former Hood County district attorney who prosecuted Woods, said authorities also had DNA evidence of the girl's blood on Woods' knife, her blood on his shoe and his DNA on her panties, which were found in Woods' car. “How could there be little doubt?” Hattox said Wednesday. “Every bit of his appeal effort has been expended toward his claim of retardation. And there's no proof he is retarded.”

 
 

Bobby Wayne Woods

ProDeathPenalty.com

In the early morning hours of April 30, 1997, Bobby Wayne Woods went to the home of his ex-girlfriend Schwana Patterson in Granbury, Texas. Though they had previously lived together, the two had split up. Woods later admitted to having used drugs before going to the house, including "crank" and PCP.

Schwana was not at home when Woods arrived, but he found an open window into the bedroom where Schwana's two children, Sarah, 11, and Cody, nine, were sleeping. He grabbed Sarah by the foot; Cody awoke to Sarah's screams as Woods beat her chest. Woods forced the two children to leave through the window in their nightclothes and took the children in his car to a cemetery. Enroute, Cody, in the back seat, noticed a black-handled knife in the back of the car.

At the cemetery, Woods took Cody out of the car and asked him if his mother was seeing anyone else. He hit Cody, bashed him against a tree and commenced strangling him in front of the car. Cody later testified that he thought he was going to die. He awoke some time later, crawled over a fence, and attracted the attention of a horseback rider who called the police.

The police later found Woods and told him that they had the "whole story" from Cody. They asked him to tell them where to find Sarah, hoping that she was still alive. Woods told them, "You will not find her alive. I cut her throat." He then led the police to Sarah's body and gave them two written statements. In the statements, he admitted to having had sexual contact with Sarah before leaving the house, that he had taken drugs, and that after Cody fell unconscious in the cemetery, Sarah had started screaming. He left with her in the car toward a bridge on Highway 144. She continued to yell that she would tell the police that he had hit Cody. He attempted to quiet her by holding a knife to her throat. According to his statement, Sarah jerked and the knife cut her throat. Her body was clothed in an inside-out shirt, a sports bra, and a pair of shorts, without panties. Her throat had been deeply cut, severing her larynx and several major arteries and veins, causing massive external bleeding that was the cause of her death.

Later investigation found Woods's semen on Sarah's bedcover, indicating that he had had sexual contact with her. This was borne out in other evidence, including statements by Woods himself, Sarah's friends, notes she had left in her diary indicating that she hated Woods and wanted him gone, and that she had contracted the sexually-transmitted disease Human Papilloma Virus ("HPV") and Woods was also infected with HPV. When Sarah's body was later found, forensic evidence including larvae development in her traumatized genitals also indicated that she had been sexually molested shortly before her death. In addition to finding Woods's semen on Sarah's blanket, investigators found a large butcher knife, stained with Sarah's blood, inside a trash bag that Woods had borrowed from a neighbor the morning after he abducted Sarah and Cody. The bag also contained a pawn ticket bearing Woods's signature and address for items he admitted stealing from the Patterson home. Sarah's blood was on Woods's jersey, which was in the back of his car; her panties were on the car's floorboard. There was evidence that Woods had scratches on his face and arms on the day after the murder that were not there the day before.

Woods was arrested and charged with capital murder and was indicted on June 4, 1997, in Hood County, Texas. The indictment charged him with the murder of Sarah Patterson in the course of committing or attempting to commit the kidnapping of Sarah and Cody Patterson, or in the alternative, the murder of Sarah in the course of committing or attempting to commit the aggravated sexual assault of Sarah. He was also indicted for the attempted capital murder of Cody, arising out of the same criminal transaction. On Woods's motion, venue was changed to Llano County, where he pleaded not guilty.

At trial, Woods testified on his own behalf and admitted to the general contours of that morning's events, including the abductions, but not to the murder. Woods claimed the children were "accidentally" injured. He said he had taken them to a graveyard where they were "playing" and Cody had jumped on his back and was accidentally hurt when Woods stumbled against a fence post. He then blamed a cousin who had died before the trial for Sarah's murder, however the DNA evidence clearly pointed to Woods. Woods was found guilty by the jury on May 21, 1998.

During the punishment phase of the trial, the jury was presented with evidence of Woods's future dangerousness, including toxicology evidence rebutting Woods's claims that he was under the influence of drugs at the time of the murder and witnesses who testified regarding Woods's affinity for knives and his propensity to taunt people with them. There was psychiatric testimony that Woods had an antisocial personality disorder. When combined with his violent tendencies, he posed a continuing threat to commit future acts of criminal violence.

Following the punishment hearing, the jury returned affirmative answers on May 28 on the issues relating to Woods's future dangerousness and intent to commit murder, and a negative answer on the existence of mitigating circumstances to justify a life sentence. The Llano County trial court sentenced Woods to death.

In October 2008, the Texas Court of Criminal Appeals halted Woods's scheduled execution to investigate new claims by his attorneys that he was mentally retarded. About the claims, Richard Hattox, the prosecutor from Woods's capital murder trial said, "There was no history of mental retardation. There were no special education classes ever afforded him. He graduated on time, wasn't held back in any grades. He was functional. He had a driver's license." Prior to being arrested for this murder, Woods had worked as a short order cook. The prison psychologist testified that Woods IQ was 83 and that there was no history of mental health treatment. Testimony also showed that Woods had checked out over 100 books from the prison library.

 
 

Bobby Wayne Woods

Texas Execution Information Center by David Carson - Txexecutions.org

Bobby Wayne Woods, 44, was executed by lethal injection on 3 December 2009 in Huntsville, Texas for the abduction and murder of his ex-girlfriend's 11-year-old daughter.

In the early morning hours of 30 April 1997, Woods, then 31, went to the home of his ex-girlfriend, Schwana Patterson, 35, in Granbury, which is in Hood County, southwest of Fort Worth. Patterson had kicked Woods out a few days earlier. Her two children, 11-year-old Sarah and 9-year-old Cody - were sleeping inside. Woods crawled through an open window into the children's bedroom. He grabbed Sarah's foot and began beating her chest, then sexually molested her. Woods then forced both children to leave through the window in their nightclothes, put them in his car, and drove to a cemetery. There, he beat and stomped Cody on the head and strangled him. With Cody unconscious, Woods then drove away with Sarah. Cody later awoke, crawled over a fence, and attracted the attention of a horseback rider, who called the police.

Based on Cody's statement, police found Woods and asked him where Sarah was, hoping to find her alive. Woods answered, "You will not find her alive. I cut her throat." He then led them to her body. She was clothed in an inside-out shirt, a sports bra, and a pair of shorts, without underwear. Her throat had been deeply cut, severing her larynx and several major blood vessels. The cause of her death was extreme blood loss. Cody had surgery to remove skull fragments from his brain.

The physical evidence against Woods included his semen on Sarah's blanket, a pair of her panties on his car's floorboard, and a trash bag containing a large butcher knife - covered with Sarah's blood - and a pawn ticket bearing Woods' signature and address for items from the Pattersons' home. Woods also had scratches on his face and arms at the time of his arrest. He and Sarah also shared the same sexually transmitted disease - the human papilloma virus (HPV).

Woods gave two statements to police. He admitted to having sexual contact with Sarah before leaving the house. He said that after Cody fell unconscious in the cemetery, Sarah started screaming. He took her away in the car, where she continued to yell, and said that she would tell the police he hit Cody. Woods said that he attempted to quiet the girl by holding a knife to her throat, but she "jerked real hard", and the knife cut her. <>At Woods' trial, which was moved because of news coverage to Llano County, northwest of Austin, Cody testified that he awoke to his sister's screams. On the way to the cemetery, he noticed a black-handled knife in the back seat of the car. At the cemetery, Woods asked him whether his mother was seeing anyone else.

Testifying in his own defense, Woods stated that while talking with Cody in the cemetery about his mother, he "popped" him in the head "pretty hard" with the palm of his hand about three times. Cody fell back, hit his head on a fence post, and fell unconscious. He then put Sarah in the car and began driving back to his house, where his cousin, Jody Milton, lived with him, because Milton "would know what to do." Milton then drove off with Sarah. The next day, Milton told Woods he thought the girl was dead, and took him to her body. Jody Milton hanged himself a few days after the murder.

Woods denied that he told the police, "I cut her throat". He testified that he told them, "Her throat's been cut". He stated he had trouble reading some words and that his signed, typewritten statements did not accurately reflect what he told the police. On cross-examination, the prosecutor challenged Woods' claim that he could not read very well by confronting him with the fact that he had checked out over a hundred books while awaiting trial in the Hood County jail. "I asked for books so I could see if I could find any I can read," Woods answered. Woods had no prior criminal record.

Sarah's diary was admitted into evidence at Woods' punishment hearing. Two months before her murder, she wrote, "Dear Diary. Guess what? Bobby moved out and we are so, so, so, so happy." In another entry, she wrote, "I don't like Cody, and I hate Bobby." She also wrote that she contracted HPV from him.

A jury convicted Woods of capital murder in May 1998 and sentenced him to death. The Texas Court of Criminal Appeals affirmed the conviction and sentence in 2000. All of his subsequent appeals in state and federal court were denied, including a series of appeals claiming that he was ineligible for execution because of mental retardation. Woods was also convicted of the attempted capital murder of Cody Patterson and was given a life sentence for that crime.

Sources differ on whether the children's mother, Schwana Cletus Patterson, was home when they were taken. According to the Texas Court of Criminal Appeals' summary of Woods' case, she was not. According to newspaper reports, however, prosecutors alleged that she was home and heard her children screaming, but failed to help them. She was arrested and charged with serious injury to a child by omission - a first-degree felony. A jury convicted her in September 1998 and sentenced her to 23 years in prison. On appeal in August 2001, her conviction was reduced to a second-degree felony, and her sentence was reduced to 8 years in prison. She was paroled in March 2005, and was released from parole supervision upon the expiration of her sentence in September 2006.

Woods' original execution date in January 2008 was stayed because of a temporary nationwide moratorium on lethal injections while the U.S. Supreme Court was considering the constitutionality of the procedure. He also avoided a second scheduled execution date in October 2008 when the Texas Court of Criminal Appeals agreed to a stay so his mental competency could be evaluated again.

In preparation for Woods' trial, the defense had hired a psychologist, Pita, who interviewed Woods and administered several tests designed to measure mental retardation, mental illness, and competency to stand trial. Woods scored 70 on the IQ test. On a test called Street Survival Skills Questionnaire (SSSQ), which measures a person's ability to function independently, Woods scored a 95. Pita also gave Woods a test called Competence Assessment for Standing Trial for Defendants with Mental Retardation (CAST*MR). On that test, where defendants who score 54% or lower are presumed to be incompetent to stand trial, and 74% or lower are presumed to be mentally retarded, Wood scored 100 percent. Based on his evaluation, Pita concluded that Woods was not mentally retarded and was competent to stand trial.

At Woods' trial, the defense called a different psychologist, Landrum. Landrum did not interview Woods or administer any tests, but he was given a copy of Pita's report. Landrum also reviewed Woods' handwriting samples, jail records, work history, and a statement from Woods' grandmother. Based on these records, Landrum testified that Woods "is, and always has been, always will be, a mentally retarded person."

In a hearing before the Texas Court of Criminal Appeals in October 2009, both sides again presented their arguments and additional tests and expert testimony regarding Woods' intelligence. The appeals court decided, in an 8-1 vote, that the additional evidence presented before them supported the trial court's finding that Woods was not retarded.

In an interview from death row prior to his scheduled execution date in October 2008, Woods said he did not plan to harm the children. "I took the kids out, and we were horsing around," he said. "We went walking around graveyards, horsing around by a fence. Cody jumped on my back and hit a fence post." After that, Woods said, "I guess I panicked." He still blamed Sarah's murder on his cousin.

Woods' execution was delayed for about half an hour while the U.S. Supreme Court considered and rejected a final appeal from his lawyers claiming that he was mentally retarded and that his previous lawyers' work was faulty. At his execution, when the warden asked Woods if he had a final statement, he lifted his head from the gurney and said, "Bye. I'm ready." The lethal injection was then started. He was pronounced dead at 6:40 p.m.

 
 

Bobby Wayne Woods

DeathRow-USA.us

Hi,

I guess I can tell you about myself some. I am 5,8 tall and I am at 188 pounds - I have blonde hair - I like to go camping, fishing and swimming and I like to cook, working out - I can do 3000 push up without stopping, I can do it in 30 minutes, I can do 2000 sit up with stopping and do pull ups, run and I like doing the weight-bar too. I also like hiking in the woods and fast cars. I am going to send a picture of myself, my mom is going to send it to me as soon possible. It will have me and my grandmom on it. It was taking 3 months ago. My mother name is Doris and my grand mother name is Ruby Woods but I call her mom. She had me all my life that's how come I call her mom.

What am I looking for is a pen pal. I have just one, she is from Germany. She is very nice, she goes to school and works anyway. I would like to get some in the States if I can, overseas ok, too. I do not care who it is women or a man. I have got letter before and I write them back but that all I do not hear anything else from them. I think my spelling and writing is ok. I like to have someone who will not make fun of my writing and spelling.... Back to the pen pal thing, like I said women or man but I get better a long with women than man. I get along with most of the women, here not the men, not one of them...HaHaHa. Anyway I hope I did not forget anything, ask me and I will tell you ok. I guess that's all for now, hope to hear from you soon.

Bobby Woods

P.S. I would like to tell my story but I can not spell all the big words and sometimes when I write something it does not come out right. It going to take me a little time. I have to find someone to help me with the spelling, the one beside me makes fun of me so do not ask them anything with spelling anyway.

Bobby W. Woods #999270
Polunsky Unit D.R. - 3872 FM 350 South - Livingston, Texas 77351 - USA
·22.01.2004

February 20, 2004

I am writing to you to tell you a little about my case, that was not said and there was a lot of things like:

1. The shoe was to small for my feet, they were 9 or 8 ˝ but my size is 10 or 10 ˝. (Jody was a 9 not me).

2. The blanket they have was not the kid's, it was mine and hers but D.A. (District attorney) said it was the kid's.

3. Jody killed himself 27 days later, he killed her, not me. I tried telling them that before he killed himself. I put it in writing before he killed himself. The night they put me in jail they said I was lying, he did not do it and 27 days later he was dead. But at trial they said I could not use the one I wrote, they threw it out at trial, they said I couldn't use it. See, that's not right, is it? I had a handwritten confession.

4. At trial they said we did not get married but we did. My mom was there, she was there when we got married and we got the marriage license in Grandbury. But at trial they said I was not and I didn't live there but a month but I been living there ˝ year. See that what they said at trail, that how they got kiddniping but check this out: They found semon on a blanket so they said sexual assult to but the blanket was not the kids it was my and her not the kid's. They said at trail I never live there so my semon should not be there so I tryed to have sex with her but I did not try to have sex that what they said. They had me up 3 days, I did not get no sleep at all. They had writing out a confession and had me sign it. I had 3 days no sleep at all... I did not write that one they did.

5. Now I have the mental retardation do you knew about that they can kill anyone that mental retarded. My IQ was 66 at trail but they trying to say it 70. Now that I lived there now for over a year ˝ but at trail they said i was not living there that how they got kiddning so now they saying I lived , there something not right here anyway. Now I could get a life setence on mental retardation I hope or a new trail I would like a new trail with a good lawyer I did have a good at the time I wish she did not try to help me at the D.A. said what he want that was all.

The Lawyer I have now he is filling my paper work late one time he filling it 3 weeks later to the C.C.A. about the mental retardation and the handwriting confession saying my cousin killed her before he killed himself 27 days later. But he did not filling in time the C.C.A. want to hear anything about the confession or alley was 3 weeks late on filling the paper work any way the C.C.A. sent me back to state court on mental retardation, not confession that not the first time he has filled my paper work too late.

There are a lot more things I have to say .....

Bobby Woods

September 27, 2004

Woods wants off Texas death row

A hearing to determine whether convicted murderer Bobby Wayne Woods has mental retardation began Monday morning in Hood County District Court and should last two or three days, according to the district clerk's office. Woods, who in May 1998 was found guilty of the April 1997 kidnapping and murder of 11-year-old Sarah Patterson, has been on death row since his trial.

If found to have mental retardation, Woods could be removed from death row. Judge C.C. Cooke is hearing the case presented by attorney Rick Alley, who represents Woods. Mack Cobb and John Neil from the Texas Attorney General's office represent the state.

Woods had been the live-in boyfriend of Sarah Patterson's mother Schwanna in their Rolling Hills Shores home. In the early morning hours of April 30, 1997, Woods kidnapped Sarah and her brother Cody from the home. Woods beat Cody and left him for dead at Thorp Spring Cemetery. Sarah's body was found with a slashed throat two days later off Highway 144 South.

Woods confessed to the murder but recanted at his trial, blaming a cousin who committed suicide after the murder. After Woods' trial, held in Llano after his lawyers won a change of venue, he appealed to the 2nd Court of Appeals in Fort Worth. The court upheld the conviction.

Source : Hood County News

 
 

Bobby Wayne Woods sentenced to death

Texnews.com

Friday, May 29, 1998

LLANO, Texas (AP) -- Bobby Wayne Woods was sentenced to death Thursday for the abduction and murder of 11-year-old Sarah Patterson last year.

Woods, 32, also received a 40-year sentence for attempted capital murder in the injuring of the girl's 9-year-old brother.

Defense attorneys had asked for a sentence of life in prison.

The Granbury man was convicted last week of abducting Sarah and her brother, Cody, slashing Sarah's throat and knocking Cody unconscious. Cody told police to "kill Bobby Woods for me" after he was found wandering in a cemetery.

About a dozen witnesses, including Sarah's best friend, testified this week in the punishment phase of Woods' trial.

Sarah's diary was among the evidence prosecutors offered.

"Dear Diary. Guess what? Bobby moved out and we are so, so, so, so happy," says an entry dated two months before Sarah was killed. In another entry, the girl wrote, "I don't like Cody, and I hate Bobby."

A psychologist hired by the defense testified Woods is mentally retarded and no longer a threat to society. But he acknowledged he hadn't examined Woods. A psychiatrist put on the stand by prosecutors said Woods is not retarded and could commit future violent acts.

During the trial, Woods admitted taking the children from their mother's home last April 30 and knocking Cody unconscious. But Woods claimed Sarah was killed by his cousin, who committed suicide shortly after the crime.

Woods had been kicked out of the Patterson home days before the attack by the children's mother, Schwana Patterson, who faces trial on charges alleging injury to a child. Prosecutors say she heard her children screaming but didn't help. She has denied the charges.

Cody testified he was awaken by his sister's screams as Woods beat the girl in the bed the children shared. He said Woods told them to follow him, and all three went to a graveyard.

The boy testified that Woods told him to get out of the car and told Sarah to get in the front seat and lie down. Cody said Woods choked him and knocked him unconscious. The boy later had surgery to remove skull fragments from his brain.

Woods claimed his cousin, Jody Milton, agreed to "take care of" Sarah, whose body was found with her throat slashed.

Milton hanged himself shortly after the girl's death.

The trial was moved to Llano, 65 miles northwest of Austin, because of extensive news coverage in the Dallas-Fort Worth area.

 
 

Woods v. State, 14 S.W.3d 445 (Tex.Crim.App. 2000). (Direct Appeal)

Defendant was convicted in the 355th District Court, Hood County, Tom Crum, J., of attempted capital murder. Defendant appealed. The Court of Appeals, Holman, J., held that: (1) failure to specify offense in arrest warrant did not render evidence inadmissible; (2) evidence that defendant kidnapped victim was sufficient to support conviction; (3) finding that child victim was competent to testify was within district court's discretion; (4) improper comment to venire panel did not warrant dismissal of panel; and (5) probative value of photograph of victim was not outweighed by its prejudicial effect. Affirmed.

DIXON W. HOLMAN, Justice.

Appellant Bobby Wayne Woods was charged with the offense of attempted capital murder. A jury found him guilty and sentenced him to life in prison. Because we have found no reversible error and have overruled all seven points, we affirm.

BACKGROUND

Eight-year-old Cody Patterson shared a bed with his older sister Sarah in their three bedroom Granbury home. Sarah was eleven-years-old and in the fifth grade. During the early morning hours of April 30, 1997, Cody was awakened by his sister's screams. Fearing for his safety, Cody remained silent while Appellant beat Sarah with his fists. After Appellant finished hitting Sarah, he instructed her and Cody to crawl out their bedroom window. Cody and Sarah obeyed although they were not afforded an opportunity to dress or put on their shoes. Cody testified that he did not want to leave.

After putting Cody and Sarah into a car belonging to his grandmother, Appellant drove four miles to the Thorp Springs Cemetery. On the way, Appellant hit Cody. When they arrived at the cemetery, Appellant ordered Cody to exit the vehicle and for Sarah to lie down in the front seat. Once outside the car, Appellant struck Cody several more times in the head. Appellant also grabbed Cody around the neck, choked him for nearly five minutes, and Cody eventually passed out. When he regained consciousness, Cody believed he was going to die. He could not see well because he was experiencing triple vision, and he did not have enough strength to stand or scream for help.

Schwana Patterson, Cody and Sarah's mother, discovered that Cody and Sarah were missing around 6:00 a.m. on April 30, 1997. After a cursory search of the house and its surroundings revealed that the children had not dressed or gone to school, the authorities were notified. Officer Russell Ford responded and arrived at the Patterson home around 6:46 a.m. Officer Ford inspected the Patterson residence and noticed an open window over the bed in the rear bedroom where Cody and Sarah had been sleeping. The officer concluded that Cody and Sarah had been abducted.

During the course of the day, some of the people who saw Appellant noticed that he had scratches on his face and right arm. Appellant gave at least five different accounts of how the scratches occurred. Appellant told Officer Todd Law that he received the scratches while hauling off some brush for Ed Blakeney. When Ed Blakeney asked Appellant what had happened to him, Appellant responded that he had been jumped by three guys and that he had run through some briars to escape. Appellant stated to Ann Fifer that he had the shingles. Appellant also told Officer Fred Bauer that he had been scratched by a pet squirrel, but at the police station said it was a cat. As the evidence began to implicate Appellant in Cody and Sarah's disappearance, a team of investigators was assembled to conduct an interview with Appellant.

Officers stopped him on Highway 144. Appellant agreed to follow them to the law enforcement center for questioning. Due to Appellant's inconsistent answers and demeanor during the interview, investigators decided to inform Appellant of his Miranda rights. Appellant authorized officers to search his vehicle at that time, and he soon admitted that he had burglarized the Patterson home on April 29, 1997. The affidavit of Chief Deputy Sheriff Larry Goin was presented to Magistrate Judy B. Watson around 6:04 p.m. stating that Appellant had confessed to Goin that Appellant had stolen a VCR and a Sega video game from the Patterson home. Magistrate Watson issued an arrest warrant based on the officer's affidavit and the warrant was executed around 6:30 p.m. that day, April 30, 1997.

Hank Courtney, who was exercising his horse on his lease near the cemetery, discovered Cody at 6:40 p.m. and took him to the nearest house where they called 911. Cody was soon taken by ambulance to Cooks Children's Hospital in Fort Worth. Dr. Jan Leah Lamb treated Cody at the hospital. Cody had suffered a series of depression fractures to the back of his skull, which forced it inward due to the force of the blows. Cody also suffered a series of blows across the front lobe of his skull, which resulted in such severe swelling that there was no shape left. Cody was bruised and had red welts over his entire body, because he had been beaten badly and stung by ants. Cody also was severely sunburned and dehydrated.

At 8:59 a.m. on May 2, 1997, Magistrate Watson issued a warrant authorizing officers to arrest Appellant for the attempted capital murder of Cody Patterson. Appellant signed a written statement that afternoon:

I WENT INTO THE HOUSE AND GOT THE KIDS FROM THE HOUSE AND LEFT, GOING TO WAL-MART. CODY AND SARAH WERE FIGHTING IN THE CAR.... I REACHED AROUND AND SLAPPED CODY ON HIS ARM. I TURNED AND DROVE TOWARD THE GRAVEYARD. I TOOK CODY OUT OF THE CAR TO TALK TO HIM AND TELL HIM I WAS SORRY FOR HITTING HIM. SARAH SAID SHE WAS GOING TO TELL THEIR MOTHER THAT I HIT CODY. CODY BEGAN TO YELL AT ME AND I HIT CODY TWICE IN THE BACK OF HIS HEAD....

POINTS ON APPEAL

Appellant argues first that the evidence is factually insufficient to sustain his conviction. Second, he contends that the evidence is legally insufficient. In his third point, Appellant complains that the trial court abused its discretion by allowing Cody to testify without conducting a competency hearing outside the presence of the jury. Fourth, Appellant challenges the trial court's refusal to dismiss the venire panel. Fifth, he argues that the trial court abused its discretion by denying his motion to suppress evidence because of a defect in the April 30, 1997 arrest warrant. Sixth, Appellant contends that the trial court abused its discretion by excluding exculpatory evidence from a co-defendant. And last, Appellant complains that the trial court abused its discretion by admitting duplicative photographs. We will address point five first.

THE ARREST WARRANT

Article 15.02(2) of the Texas Code of Criminal Procedure provides that a valid warrant must state that the defendant is accused of some offense against the State, naming the offense. See Tex.Code Crim. Proc. Ann. art. 15.02(2) (Vernon 1977). Appellant's fifth point on appeal complains that the April 30, 1997 arrest warrant was deficient because it did not specifically name the offense for which he was charged, i.e.-burglary; and therefore, all evidence obtained as a result of that arrest was inadmissible at trial.

The purpose of requiring the State to specifically name the offense for which a person is to be arrested is to provide the defendant with notice of the offense for which he is charged. See Smith v. State, 811 S.W.2d 665, 669 (Tex.App.-Houston [14 th Dist.] 1991, pet. ref'd). The April 30, 1997 warrant was written on the second page of the deputy sheriff's two-page affidavit that stated probable cause for the arrest. The affidavit described the specific property that was stolen. It included the name of an eye-witness who saw Appellant with possession of the property. It stated that Appellant had confessed that he took the property and that he had pawned it. The final sentence of the affidavit stated that “I [the deputy sheriff] therefore allege that [Appellant], on or about 4-29-97 entered a habitation owned by Schwana Patterson without her consent to commit theft.” Because the affidavit and warrant were a single document, Appellant had notice that he was being arrested for entering Schwana's house and taking her property, all without her consent.

In Dunn v. State, the Court of Criminal Appeals held that “[e]vidence obtained by a police officer acting in good faith reliance upon a warrant based upon a magistrate's determination of probable cause should not be rendered inadmissible due to a defect found in the warrant subsequent to its execution.” 951 S.W.2d 478, 479 (Tex.Crim.App.1997). There is no evidence other than conjecture that the warrant was issued for an improper purpose. In Deputy Goin's affidavit, the magistrate was given probable cause to support the issuance of the April 30 th warrant. The record indicates that Appellant was arrested by officers acting in objective good faith reliance upon that warrant, which was based on probable cause and issued by a neutral magistrate. There were lawful grounds to arrest Appellant for burglary, and the trial court did not abuse its discretion by denying Appellant's motion to suppress evidence. We overrule Appellant's fifth point.

FACTUAL SUFFICIENCY

Appellant argues that the evidence is factually insufficient to prove beyond a reasonable doubt that he kidnapped Cody Patterson. This court has the authority to review fact questions in criminal cases. See Clewis v. State, 922 S.W.2d 126, 129-30 (Tex.Crim.App.1996). In reviewing the factual sufficiency of the evidence to support a conviction, we are to view “all the evidence without the prism of ‘in the light most favorable to the prosecution.’ ” Id. at 129 (citing Stone v. State, 823 S.W.2d 375, 381 (Tex.App.-Austin 1992, pet. ref'd, untimely filed)). We may only set aside the verdict if it is so weak as to be clearly wrong and manifestly unjust or the adverse finding is against the great weight and preponderance of the available evidence. See Johnson v. State, No.1915-98, slip op. at 17, 2000 WL 140257, at *8 (Tex.Crim.App. Feb. 9, 2000). Clewis, 922 S.W.2d at 129. In performing this review, we are to give “appropriate deference” to the fact finder. Clewis, 922 S.W.2d at 136. We may not reverse the fact finder's decision simply because we may disagree with the result. See Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App.1997). Instead, we may find the evidence factually insufficient only where necessary to prevent manifest injustice. See id.

A person commits the offense of kidnapping if he intentionally or knowingly abducts another person. See tex. Penal Code Ann. § 20.03(a) (Vernon 1994). “Abduct” means to restrain a person with the intent to prevent his liberation by secreting or holding him in a place where he is not likely to be found or using or threatening deadly force. See tex. Penal Code Ann. § 20.01(2)(A), (B) (Vernon Supp.2000). After beating Sarah with his fists and waking Cody, Appellant ordered Cody and Sarah to crawl out their bedroom window around 3:30 a.m. He then loaded the children into a car without their consent and drove them four miles away to a remote cemetery. Cody testified that he did not want to go with Appellant because he feared being beaten. Appellant admitted striking Cody in the car and in the cemetery. Appellant left Cody in the cemetery for roughly fourteen hours after fracturing his skull. There is no evidence that Appellant adopted Cody or that he had court-approved custody. The only evidence that Appellant did not kidnap Cody is Appellant's own testimony stating that he was going to take the children to Wal-Mart and that Schwana knew that he had taken the children riding around late at night on prior occasions. After reviewing the entire record, we hold that the verdict is not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. We overrule point one.

LEGAL SUFFICIENCY

In reviewing the legal sufficiency of the evidence to support a conviction, we view the evidence in the light most favorable to the verdict. See Narvaiz v. State, 840 S.W.2d 415, 423 (Tex.Crim.App.1992), cert. denied, 507 U.S. 975, 113 S.Ct. 1422, 122 L.Ed.2d 791 (1993). The critical inquiry is whether, after so viewing the evidence, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See McDuff v. State, 939 S.W.2d 607, 614 (Tex.Crim.App.), cert. denied, 522 U.S. 844, 118 S.Ct. 125, 139 L.Ed.2d 75 (1997). This standard gives full play to the responsibility of the trier of fact to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979).

The legal sufficiency of the evidence is a question of law. The issue on appeal is not whether we as a court believe the State's evidence or believe that the defense's evidence outweighs the State's evidence. See Matson v. State, 819 S.W.2d 839, 846 (Tex.Crim.App.1991); Wicker v. State, 667 S.W.2d 137, 143 (Tex.Crim.App.), cert. denied, 469 U.S. 892, 105 S.Ct. 268, 83 L.Ed.2d 204 (1984). Our duty is not to reweigh the evidence from reading a cold record but to act as a due process safeguard ensuring only the rationality of the fact finder. See Williams v. State, 937 S.W.2d 479, 483 (Tex.Crim.App.1996). The verdict may not be overturned unless it is irrational or unsupported by proof beyond a reasonable doubt. See Matson, 819 S.W.2d at 846.

Appellant signed a written statement after being charged and arrested for the attempted capital murder of Cody Patterson. Appellant confessed to taking Cody and Sarah from their home and driving them to a remote cemetery. He admitted to hitting Cody in the arm and in the back of the head. Cody testified that he was scared and that he had been awakened by Sarah's screams as Appellant assaulted her. Cody did not want to go and was afraid that he was going to be beaten. Dr. Lamb testified that Cody had suffered a severe beating and sustained severe injuries to his head. Viewing the evidence in the light most favorable to the verdict, we hold that a rational trier of fact could have found the essential elements of kidnapping beyond a reasonable doubt. We overrule point two.

THE COMPETENCY HEARING

Whether a child witness is competent to testify is reviewed under an abuse of discretion standard. See Reyna v. State, 797 S.W.2d 189, 191 (Tex.App.-Corpus Christi 1990, no pet.). An abuse of discretion occurs where a trial judge acts arbitrarily and unreasonably, without reference to guiding rules or principles of law. See Breeding v. State, 809 S.W.2d 661, 663 (Tex.App.-Amarillo 1991, pet. ref'd). A trial court has wide discretion in determining the admissibility of evidence. See id.; s ee also Dorsett v. State, 761 S.W.2d 432, 433 (Tex.App.-Houston [14 th Dist.] 1988, pet. ref'd). To determine whether the trial court abused its discretion, we must review the entire testimony of the child. See Dufrene v. State, 853 S.W.2d 86, 88 (Tex.App.-Houston [14 th Dist.] 1993, pet. ref'd).

Appellant's third point on appeal claims that Cody was not competent to testify. As a general rule, a child is competent to testify unless, after being examined by the court, he does not appear to possess sufficient intellect to relate transactions with respect to which he is interrogated. See tex.R. Evid. 601(a)(2). Inconsistencies and conflicts in the child's testimony do not automatically rule him incompetent; rather, they are simply factors affecting the weight of the child's credibility. See Upton v. State, 894 S.W.2d 426, 429 (Tex.App.-Amarillo 1995, pet. ref'd).

After reviewing the record, we hold that the trial court did not abuse its discretion by finding that Cody was competent to testify. Both the prosecutor and the trial judge asked Cody numerous questions to determine whether he knew the difference between a truth and a lie. The prosecutor also asked questions to determine whether Cody was able to accurately perceive the events of the alleged crime and whether Cody could articulate his perceptions in a reliable manner. After hearing Cody's responses and perceiving his demeanor on the witness stand, the trial court reasonably could have concluded that he was competent to testify. We overrule Appellant's third point.

THE VENIRE PANEL

After the voir dire of the venire panel, Appellant's attorney, outside the jury's presence, requested a jury shuffle. When the district clerk returned with the new list, she apologized to the venire panel and stated that “this was Shelly's [Appellant's trial counsel] fault.” Appellant's counsel objected and argued that the clerk's comment tainted the entire panel. The trial court then instructed the jury in the exact language Appellant requested: “[y]ou are instructed that the defense or the State has a right to ask for a shuffle. In any event you are instructed not to consider in any way who exercised their right to a jury shuffle.” The trial court then denied Appellant's request that the entire panel be dismissed. Appellant's fourth point complains of the denial.

Whenever a trial court instructs the jury to disregard an improper comment, it is presumed that the jury will follow the court's instruction unless the remark or comment was so prejudicial or extreme that the instruction is incapable of removing the harm. See Gardner v. State, 730 S.W.2d 675, 696 (Tex.Crim.App.), cert. denied, 484 U.S. 905, 108 S.Ct. 248, 98 L.Ed.2d 206 (1987); Calderon v. State, 847 S.W.2d 377, 380 (Tex.App.-El Paso 1993, pet. ref'd). Where a prejudicial comment is made in front of a jury, a party complaining of it must develop a sufficient record demonstrating harm. See Smith v. State, 907 S.W.2d 522, 527 (Tex.Crim.App.1995); Haynes v. State, 627 S.W.2d 710, 711 (Tex.Crim.App.1982). Because Appellant's counsel did not develop the record and there is no evidence that the court's failure to dismiss the panel contributed to Appellant's conviction, we overrule point four. See tex.R.App. P. 44.2(b); Mosley v. State, 983 S.W.2d 249, 259 (Tex.Crim.App.1998) (op. on reh'g), cert. denied, 526 U.S. 1070, 119 S.Ct. 1466, 143 L.Ed.2d 550 (1999).

EXCULPATORY EVIDENCE CLAIM

Appellant's sixth point contends that the trial court erred by not allowing allegedly exculpatory evidence in during Appellant's case-in-chief. Appellant argues that the consent to search form of Schwana Patterson contained language that could have undermined the State's theory that Appellant was the person who attempted to murder Cody.

We must evaluate the trial court's ruling under an abuse of discretion standard of review. See Green v. State, 934 S.W.2d 92, 101-02 (Tex.Crim.App.1996), cert. denied, 520 U.S. 1200, 117 S.Ct. 1561, 137 L.Ed.2d 707 (1997); Montgomery v. State, 810 S.W.2d 372, 379 (Tex.Crim.App.1990). Evidence is relevant if it tends “to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” tex.R. Evid. 401. All relevant evidence generally is admissible. See tex.R. Evid. 402. Appellant's burden as the proponent of the evidence is to demonstrate the consent form's relevancy. See Alvarado v. State, 912 S.W.2d 199, 215 (Tex.Crim.App.1995); Meador v. State, 812 S.W.2d 330, 333 (Tex.Crim.App.1991).

Appellant has not shown a connection between Schwana Patterson's consent to search form and the issues before the court. There is no evidence to support the inference that the evidence would have been exculpatory or favorable to Appellant. The trial judge determined that Appellant failed to meet his burden of establishing the form's relevance under Rule 401 and we will not reverse a trial court ruling that falls within the zone of reasonable disagreement. See Green, 934 S.W.2d at 102; Montgomery, 810 S.W.2d at 391 (op. on reh'g). Having carefully considered the evidence, we do not find the trial court abused its discretion by excluding the consent form. We overrule point six.

THE PHOTOGRAPHS

Appellant argues in his appellate brief that the sixth and seventh photographs of Cody Patterson should not have been admitted because they were cumulative. Appellant failed to identify either photograph by its exhibit number. The reporter's record's master exhibit list indicates that the sixth and seventh photographs of Cody Patterson admitted at trial were State's exhibit numbers 34 and 35. Although Appellant's point could be dismissed for inadequate briefing under tex.R.App. P. 38.1(h), we will address its contentions.

State's exhibit number 34 was a 30” x 40” color photograph depicting the injuries to the back of Cody's head. Appellant pointed out that a similar photograph, State's exhibit number 26, had already been admitted and that State's exhibit number 34 should be excluded under Rule 403. A trial court has considerable discretion in deciding whether to admit or exclude photographs into evidence. See Huffman v. State, 746 S.W.2d 212, 222 (Tex.Crim.App.1988). Appellate courts are limited to determining whether the danger of unfair prejudice substantially outweighs the photograph's probative value. See tex.R. Evid. 403; Barnes v. State, 876 S.W.2d 316, 326 (Tex.Crim.App.), cert. denied, 513 U.S. 861, 115 S.Ct. 174, 130 L.Ed.2d 110 (1994); Tidrow v. State, 916 S.W.2d 623, 631 (Tex.App.-Fort Worth 1996, no pet.). Among the factors a court may consider are the number of photographs offered, their detail and size, whether in color or black and white, whether close-up, and whether the body is clothed or naked. See Barnes, 876 S.W.2d at 326; Tidrow, 916 S.W.2d at 631. A court also may consider the availability of other means of proof and circumstances unique to the case. See Tidrow, 916 S.W.2d at 631. In short, a photograph should be excluded if it is so horrifying or appalling that a juror of normal sensitivity would necessarily encounter difficulty rationally deciding the critical issues of the case after viewing it. See id.

State's exhibit number 34 was offered in conjunction with Dr. Lamb's testimony describing the extent of Cody's head injuries. While a total of seven photographs were entered into evidence, State's exhibit number 34 was the only close-up photograph showing the back of Cody's head. It was no larger than any of the rest of the photographs. State's exhibit number 26 also showed the back of Cody's head, but it was farther away, taken from a different angle, and not as clear as State's exhibit number 34. We hold that the trial court properly admitted the photograph, and that it is not so horrifying or appalling that a juror of normal sensitivity would have difficulty rationally deciding the critical issues of the case after viewing it. It is relevant to the issues of the trial, and we conclude that it is more probative than prejudicial. See tex.R. Evid. 403.

When State's exhibit number 35 was offered into evidence, Appellant objected, but he failed to state a reason for the objection. To preserve a complaint for appeal, a party must have presented a timely objection stating the specific grounds for the desired ruling if they are not apparent from the context of the objection. See tex.R.App. P. 33.1(a)(1); Mosley, 983 S.W.2d at 265. When that is not done, error is not preserved, and the complaint is waived. See Taylor v. State, 939 S.W.2d 148, 155 (Tex.Crim.App.1996). Because Appellant failed to preserve error for appellate review of State's exhibit number 35, we overrule point seven.

CONCLUSION

Because we have found no reversible error and have overruled all seven of Appellant's points, we affirm the trial court's judgment.

 

 

 
 
 
 
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