OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

KELLER, Judge.

A jury convicted appellant of capital murder (murder in the course of a robbery) and the trial court sentenced him to life imprisonment pursuant to Article 37.071 of the Texas Code of Criminal Procedure. The Court of Appeals affirmed the conviction. Fairow v. State, 920 S.W.2d 357 (Tex.App.—Houston [1st Dist.] 1996). We granted appellant’s petition to review the Court of Appeals’ holding that Rule 701 of the Texas Rules of Criminal Evidence1 does not allow a lay witness to express his opinion as to the culpable mental state with which an act was committed. We will affirm.

I.

Appellant and three co-conspirators — De-ryk Middleton, Gary Mosby and Andre Mos*897ley — entered a neighborhood bar and robbed its patrons at gunpoint. Appellant attempted to take money from the cash register but the bar’s owner, Joseph Young, physically prevented him from doing so. Appellant and Young began fighting. During the course of the fight, appellant twice tried to shoot Young but the gun malfunctioned. As an alternative method of subduing Young, appellant used his firearm to strike Young in the head. Mosby shot Young as he fell from the second of appellant’s blows. The jury was instructed on the law of parties and it convicted appellant of capital murder.

At trial, co-defendant Middleton testified for the State as an accomplice witness. On cross-examination of Middleton, appellant attempted to introduce into evidence an exculpatory statement that Mosby uttered shortly after the shooting. Middleton was going to testify that Mosby said “something” like “I didn’t try to kill him.” The State requested a hearing on its previously filed motion in limine seeking to prevent appellant from eliciting the statement in front of the jury unless he could first establish it as an exception to the hearsay rule.

In an attempt to lay a predicate for the proposition that the statement was admissible, defense counsel repeatedly asked Middleton whether he thought that Mosby intentionally shot Young:

Q: From the actions that you saw Gary Mosby take— jumping over the bar, pointing the gun at Mr. Joe Young— did you formulate in your mind an opinion as to whether or not Mr. Mosby shot Joe Young on purpose?

THE STATE: Objection.

THE COURT: Sustained.

Q: Did you see Gary Mosby shoot Joe Young?

A: Yes.

Q: Did he accidentally (shoot) Joe Young?

THE STATE: Object to that; calling for an opinion from this witness.

THE COURT: Sustained.2

On appeal and in his petition for discretionary review to this Court, appellant asserts that the trial judge improperly excluded evidence of Middleton's opinion regarding whether Mosby intentionally caused the death of Joseph Young.3 Appellant contends that Middleton’s opinion was admissible under Rule 701,4 which allows witnesses to give opinion or inference testimony provided that the opinion is rationally based on the perception of the witness and helpful to a clear understanding of the witness’s testimony or the determination of a fact in issue. In affirming appellant’s conviction, the Court of Appeals rejected his contention and held that a “speculative opinion, such as what someone else is thinking at a specific time, does not help the jury.” Fairow, at 361.5 Today, we are called upon to determine whether a lay *898opinion regarding culpable mental state is admissible under Rule 701, and, if so, whether the Court of Appeals in this case erred by agreeing with the trial court’s decision to exclude such an opinion.

II.

When conducting a Rule 701 evaluation,6 the trial court must decide (1) whether the opinion is rationally based on perceptions of the witness and (2) whether it is helpful to a clear understanding of the witness’s testimony or to determination of a fact in issue. See Rule 701. The initial requirement that an opinion be rationally based on the perceptions of the witness is itself composed of two parts. First, the witness must establish personal knowledge of the events from which his opinion is drawn and, second, the opinion drawn must be rationally based on that knowledge. See Wendorf, Schlueter & Barton, Texas Rules of Evidence Manual, § VII, p. 5, (4th ed.1995).

A.

The perception requirement of Rule 701 is consistent with the personal knowledge requirement of Rule 602.7 It requires the proponent of lay-opinion testimony to establish that the witness has personal knowledge of the events upon which his opinion is based. Personal knowledge will often come directly from the witness’s senses. See e.g. Smith v. State, 683 S.W.2d 393, 404 (Tex.Crim.App.1984)(police officer may give non-expert opinion regarding physical facts he has observed); Doyle v. State, 875 S.W.2d 21 (Tex.App.—Tyler 1994, no pet.) (prison guard allowed to give opinion testimony under Rule 701 based on “what he saw ”); State v. Welton, 774 S.W.2d 341, 343 (Tex.App.—Austin, pet. ref'd)(police officer permitted to give non-expert opinion regarding intoxication based in part on smelling the odor of alcohol); Lape v. State, 893 S.W.2d 949 (Tex.App. Houston [14th] 1994)(abuse of discretion occurred when lay-witness not permitted to give an opinion on how sound traveled in her home)(all emphases added). It may, however, come from experience. See e.g. Austin v. State, 794 S.W.2d 408, 410-11 (Tex.App.—Austin 1990, pet. ref'd)( police officer permitted to testify that, based on his personal experience, it was his opinion that “Swedish deep muscle rub” was a code for prostitution); Williams v. State, 826 S.W.2d 783, 785 (Tex.App.—Houston [14th] 1992, pet. ref'd)(using past experience, a police officer was permitted to testify, as either a lay-witness or an expert, that he interpreted the defendant’s actions to be a drug transaction); Reece v. State, 878 S.W.2d 320, 325 (Tex.App.—Houston [1st] 1994, no pet.)(based on training and experience, a police officer may testify under Rule 701 that a defendant’s actions are consistent with someone selling cocaine). If the proponent of the opinion cannot establish personal knowledge, the trial court should exclude the testimony. See e.g. Bigby v. State, 892 S.W.2d 864, 889 (Tex.Crim.App.1994)(holding that a lay witness may not testify as to his opinion on appellant’s sanity when that opinion was based on the observation of others); McMillan v. State, 754 S.W.2d 422, 425 (Tex.App.—Eastland 1988, pet. ref'd)(holding that a lay-witness opinion based on hearsay was inadmissible).

*899Applying the personal knowledge requirement to culpable mental state presents a unique problem. It is impossible for a witness to possess personal knowledge of what someone else is thinking.8 The individual is the only one who knows for certain the mental state with which he is acting. See e.g. Arnold v. State, 853 S.W.2d 543, 547 (Tex. Crim.App.1993).9 Therefore, if the trial court determines that a proffered lay-witness opinion is an attempt to communicate the actual subjective mental state of the actor, the court should exclude the opinion because it could never be based on personal knowledge. Likewise, if the witness’s lack of personal knowledge yields testimony that amounts to “choosing up sides” or an opinion of guilt or innocence, his opinion should be excluded. See Boyde v. State, 513 S.W.2d 588 (Tex.Crim.App.1974); Spaulding v. State, 505 S.W.2d 919 (Tex.Crim.App.1974); Huffman v. State, 691 S.W.2d 726, 730 (Tex.App.—Austin 1985, no pet.). All Rule 701 opinions regarding culpable mental state, however, need not be automatically excluded for want of personal knowledge.

An opinion will satisfy the personal knowledge requirement if it is an interpretation of the witness’s objective perception of events (i.e. his own senses or experience). Doyle v. State, 875 S.W.2d 21 (Tex.App.— Tyler 1994, no pet.), illuminates the distinction between personal knowledge of another’s mental state and personal knowledge of perceived events. In Doyle, two prison guards personally observed a prisoner strike another guard. They testified, over objection, that the blows were intentional. Id. at 22. The Court of Appeals held that a prison guard, trying to explain what he saw, could, under Rule 701, give an opinion regarding whether the blow was “intentional or accidental.” Doyle at 23. We agree. The prison guards in Doyle did not have personal knowledge of the mental state with which the defendant struck their colleague. They did, however, witness the attack and thus were qualified to give an opinion based on their perception of the event. So, while a witness cannot possess personal knowledge of another’s mental state, he may possess personal knowledge of facts from which an opinion regarding mental state may be drawn. The jury is then free to give as much or as little weight to the opinion as it sees fit. Therefore, we conclude that once the proponent of the opinion establishes personal knowledge of the facts underlying the opinion, he has satisfied the perception requirement of Rule 701. This is so even if the opinion concerns culpable mental state. See Tex.R.Crim. Evid. 704.10

1.

Once the perception requirement is satisfied, the trial court must determine if *900the opinion is rationally based on that perception. An opinion is rationally based on perception if it is an opinion that a reasonable person could draw under the circumstances. See Goode, Wellborn and Sharlot, 2 Texas Practice Guide to the Texas Buies of Evidence: Civil and Criminal, § 701.2, p. 5. An opinion not capable of reasonably being formed from the events underlying the opinion must be excluded. See e.g U.S. v. Cox, 633 F.2d 871, 875-876 (9th Cir.1980)(holding a witness’s opinion that the defendant was involved in a car bombing was not rationally related to her underlying perceptions: (1) that defendant had twice told her he knew of someone who would bomb cars for money and (2) that defendant showed her a newspaper clipping of a car bombing).11

B.

The second requirement for admissibility under rule 701 is that the opinion be helpful to the trier of fact to either understand the witness’s testimony or to determine a fact in issue. Tex.R.Crim. Evid. 701. While there is no bright line indicating when an opinion is helpful, general evidentiary considerations of relevance and balancing will invariably assist the trial judge in making his determination. For example, a trial court properly acting within its discretion may determine that the confusing, misleading or cumulative nature of an opinion renders it not helpful to the trier of fact and thus improper under Rule 701. See Rule 403. This consideration is especially prudent when the opinion concerns culpable mental state. Terms typically used to describe mental state — such as “intentional”, “reckless”, and “negligent” — may have legal definitions different from their common usage. The trial court must carefully consider such differences when deciding whether an opinion will help the jury or confuse and mislead the jury. See, e.g. Lum v. State, 903 S.W.2d 365, 370 (Tex.App.—Texarkana 1995, pet. ref'd)(holding that a witness’s testimony regarding whether the defendant behaved negligently was properly excluded because the witness was “not shown to be an expert on negligence or to know the legal definition or standard of negligence”).

Another important factor in determining helpfulness will likely be the ability or inability of the witness to convey the events from which his opinion is drawn. For example, an opinion may not be helpful from a witness who is able to articulate his perceptions in great detail (thus increasing the likelihood that the jury could formulate its own opinL ion). See Cooper v. State, 23 Tex. 331, 342-343 (1859)(holding that no opinion is needed “for what any fool can plainly see”); See also e.g. Roberts v. State, 743 S.W.2d 708, 711 (Tex.App.—Houston [14th] 1987, pet. ref.)(holding that an officer’s lay opinion about whether the police were harassing the defendant was unnecessary and inadmissible when the jury had the information before it and was able to draw its own inferences). If the events are difficult or impossible to describe, however, an opinion is likely to be helpful. Texas courts before and after promulgation of Rule 701 have approvingly referred to such opinion testimony as a “shorthand rendition” of the facts. See Jackson v. State, 822 S.W.2d 18, 29 (Tex.Crim.App.1990)(allowing a police officer to testify that a defendant gave his confession voluntarily because it “was no more than a short rendition of the facts.”); See also May v. State, 618 S.W.2d 333, 341 (Tex.Crim.App.1981)(a pre-Rules case allowing a police officer to give an opinion concerning an accused’s mental attitude because it was “merely a shorthand rendition of the facts”); Wilson v. State, 854 S.W.2d 270, 276 (Tex.App.—Amarillo 1993, pet. ref.) (allowing officer’s testimony regarding what a conversation “boiled down to” as a shorthand rendition of what the conversation was about).

These considerations are not exclusive. Countless other factors may contribute to the trial court’s decision regarding helpfulness and, ultimately, the helpfulness of an opinion will be determined by the facts of the case. See Goode at p. 9-10.

*901III.

Whether an opinion meets the fundamental requirements of Rule 701 is within the sound discretion of the trial court and its decision regarding admissibility should be overturned only if it abuses its discretion. Joiner v. State, 825 S.W.2d 701, 708 (Tex.Crim.App.1992), cert. denied, 509 U.S. 925, 113 S.Ct. 3044, 125 L.Ed.2d 729 (1993); See Montgomery v. State, 810 S.W.2d 372, 379(Tex.Crim.App.1990).12 Further, if there is evidence in the record supporting the trial court’s decision to admit or exclude an opinion under Rule 701, there is no abuse and the appellate court must defer to that decision. See Carroll v. State, 916 S.W.2d 494, 503 (Tex.Crim.App.1996); Meek v. State, 790 S.W.2d 618, 620 (Tex.Crim.App.1990). With the foregoing in mind we turn to the facts of the case sub judice to determine whether the Court of Appeals erred in upholding the trial court’s exclusion of lay-witness opinion testimony.

In the present case, Middleton testified that he witnessed the entire fight, that appellant repeatedly struck the victim and that, as Young fell from a blow to the head, “... (Mosby) took the .38 from (Mosley) and ... shot the man (Young) in the chest while he (Young) was falling on the ground.” This testimony would support the trial court’s exclusion of Middleton’s opinion on several grounds. First, it supports the contention that the jury was in a position to form its own opinion, thus rendering Middleton’s opinion not helpful. See e.g. Steve v. State, 614 S.W.2d 137, 139 (Tex.Crim.App.1981)(a pre-Rules case holding that because (1) the jury was in possession of the same facts upon which a proffered opinion was based, (2) the jury could fully understand the matter and (3) the jury could draw the proper inferences and conclusions, the witness’s opinion testimony was unnecessary and inadmissible). Alternatively, the trial court would have been acting within its discretion in determining that what Middleton testified to seeing was not consistent with an unintentional act and thus not rationally based. See e.g. U.S. v. Cox, 633 F.2d at 876.

Additionally, our review of the record reveals that Middleton was never given the legal definition of “intentional.” This fact would support the trial court’s exclusion of Middleton’s opinion on the basis that the opinion was confusing or misleading and thus not helpful within the meaning of Rule 701.

Finally, because the hearing’s purpose was to determine admissibility of Mosby’s statement that he “didn’t try to kill” Young, there is at least some support for exclusion on the basis that the opinion was based not on perceived events but on what turned out to be inadmissible hearsay. See e.g., McMillan v. State, 754 S.W.2d at 425 (holding that the owner of a stolen diamond could not testify that her diamond weighed one carat because her testimony was based solely on hearsay and not upon her own personal observation); See also e.g. Nichols v. Seale, 493 S.W.2d 589, 594 (Tex.Civ.App.—Dallas 1973) rev’d on other grounds, sub nom Seale v. Nichols, 505 S.W.2d 251 (Tex.1974)(“... an inference by a lay witness must be based on data he has personally observed, not on hearsay or speculation”). Because evidence in the record supports excluding Middleton’s opinion under Rule 701, the trial court did not abuse its discretion in doing so. Carroll v. State, 916 S.W.2d at 503; Meek v. State, 790 S.W.2d at 620. Consequently, the Court of Appeals did not err in upholding the trial court’s exclusion of the testimony. The judgment of the Court of Appeals is AFFIRMED.

BAIRD, Judge,

concurring.

I agree the testimony proffered by appellant was properly excluded. However, for *902the following reasons, I cannot join the majority opinion which holds Tex.R.Crim. Evid. 701 permits lay witness opinion testimony concerning a third person’s culpable mental state.

I.

Gary Mosby, Deryk Middleton, Andre Mosley and appellant entered a nightclub to rob its patrons. Appellant vaulted the bar and was physically confronted by the victim. During this confrontation, appellant attempted to shoot the victim but the gun would not fire. Mosby provided appellant with a second gun which appellant used to strike the victim. Mosby obtained a third gun and fatally shot the victim.

The State called Middleton as a witness. Out of the jury’s presence, appellant sought to question Middleton concerning Mosby’s intent.1 The trial judge excluded the testimony. Appellant was convicted of capital murder and sentenced to confinement for life.

The Court of Appeals affirmed, holding:

... Middleton could not properly testify whether Mosby, at the time [of the shooting], had the culpable mental state necessary to convict appellant of capital murder, which requires an intentional killing, rather than felony murder, which does not.

Fairow v. State, 920 S.W.2d 357, 360 (Tex.App.—Houston [1st Dist.] 1996).2

We granted review to determine whether Tex.R.Crim. Evid. 701 permits lay witness opinion testimony concerning a third person’s culpable mental state.

II.

To ensure only reliable evidence goes before the fact finder, witnesses must be competent. Tex.R.Crim. Evid. 601. Competency requires personal knowledge. Tex. R.Crim. Evid. 602 provides:

Lack of Personal Knowledge A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that he has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the testimony of the witness himself. This rule is subject to the provisions of Rule 703, relating to opinion testimony by expert witnesses.3

To fulfill the personal knowledge requirement the witness must “have actually observed the fact” about which he will testify. Fed.R.Evid. 602 advisory committee’s notes. Personal knowledge is required because testimony without personal knowledge is pure speculation and conjecture. Obviously, such testimony lacks probative value and should be excluded.

III.

The personal knowledge requirement of Rule 602 applies to opinion testimony of lay *903witnesses. Bigby v. State, 892 S.W.2d 864, 889 (Tex.Cr.App.1994). Rule 701 provides:

If the witness is not testifying as an expert, his testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of his testimony or the determination of a fact in issue.4

As we held in Bigby, the “perception of the witness” portion of the rule incorporates the personal knowledge requirement of Rule 602. Bigby, 892 S.W.2d at 889. See also, H. Wendorf and D. Sehlueter, Texas Rules of Evidence Manual, at VI-3 (4th ed.1995). Therefore, lay witness opinion testimony is limited to first-hand knowledge or observation. Fed.R.Evid. 701 advisory committee’s notes; see also, Ethicon, Inc. v. Martinez, 886 S.W.2d 826, 831 (Tex.App.—Austin 1992); and, Goode, Wellborn and Sharlot, 2 Texas Practice § 701.2, at 4 (1993).

In Arnold v. State, 853 S.W.2d 543, 547 (Tex.Cr.App.1993), the defendants attempted to admit testimony from lay witnesses as to whether the defendants acted “willfully.” The trial judge refused to admit the testimony and we affirmed. Quoting Ray’s Texas Law of Evidence, § 1428, we stated:

In general our courts permit a witness to testify as to his own intention or other state of mind where the same is material * * * On the other hand decisions purporting to apply the opinion rule, uniformly exclude the testimony of a witness as to another person’s state of mind. It is said that since one person cannot possibly know another’s state of mind, his testimony is necessarily based on conjecture. This argument really invokes the rule requiring the witness to have personal knowledge of the matter about which he is to testify.

See also, Winegarner v. State, 505 S.W.2d 303, 305 (Tex.Cr.App.1974); and, Lehman v. Corpus Christi Nat. Bank, 668 S.W.2d 687, 689 (Tex.1984).

Therefore, consistent with our holdings in Bigby and Arnold, the Court of Appeals correctly held the trial judge in the instant case did not err in excluding the testimony of Middleton concerning the culpable mental state of Mosby.5

In addition to the lack of personal knowledge, lay witness opinion testimony concerning a third person’s culpable mental state is inadmissible because it does not satisfy Rule 701’s requirement that the testimony be helpful to a clear understanding of the witness’ testimony or in determining a fact in issue. In Holloway v. State, 613 S.W.2d 497, 500 (Tex.Cr.App.1981), we held:

... Clearly, there is nothing to be gained by permitting a witness to proffer an opinion on a subject when any other person in the courtroom, any member of the jury, could form an opinion on the issue equally readily and with the same degree of logic as the witness.

Id., 613 S.W.2d at 500-501. A jury is as capable of determining the culpable mental state of the third person as the testifying witness. There is no need for an opinion for what “any fool can plainly see.” Cooper v. State, 23 Tex. 331, 342-343 (1859); see also, Salem v. United States Lines Co., 370 U.S. 31, 36-37, 82 S.Ct. 1119, 1123, 8 L.Ed.2d 313 (1962).

*904Simply put, it is the jury’s domain to interpret facts in the decision of the ultimate issues. Tex.Code.Crim. Proc. Ann. art. 38.04. It is fundamental to the notion of “presumption of innocence” that the jury, not the witnesses, determine the ultimate issues because the jury is in a better position, removed from the emotional circumstances, to determine what happened in the individual cases. Tex.Code.Crim. Proc. Ann. art. 38.03. Thus, lay witness opinions as to culpable mental state are not helpful, but superfluous and should be excluded.

IV.

For the foregoing reasons, I would reaffirm Bigby, supra, and Arnold, supra, and adopt a bright line rule that lay witness opinion testimony concerning a third person’s culpable mental state is not admissible. Because the majority does not, I join only the judgment of the court.

OVERSTREET, J., joins this opinion.

MEYERS, Judge,

concurring.

The resolution of the issue presented in this case turns largely upon the interpretation of the “personal knowledge” requirement. Under the common law rule, as reiterated by this Court in Arnold v. State, 853 S.W.2d 543, 547 (Tex.Crim.App.1993), the testimony of a witness as to another’s mental state was inadmissible on the ground that one can never possess personal knowledge of another’s mental state. The majority departs from this rule, concluding that the personal knowledge requirement simply goes to the facts upon which the lay witness opinion is based — not to the subject of the opinion itself. The majority holds that while a lay witness cannot testify that he knows “the actual subjective mental state” of another person, he can state his opinion of the mental state of another person, based upon his “personal knowledge of the facts underlying the opinion.” This holding is consistent with a plain language reading of the rules, the way we interpreted those rules in Bigby v. State, 892 S.W.2d 864 (Tex.Crim.App.1994), and with a common sense understanding of the term “opinion.” Arnold should be disavowed.

Rule of Criminal Evidence 701, Opinion Testimony by Lay Witness, provides:

If the witness is not testifying as an expert, his testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of his testimony or determination of a fact in issue.

In Bigby, we interpreted Rule 701 as incorporating the personal knowledge requirement of Criminal Rule of Evidence 602:

By requiring the [lay witness opinion] testimony to be based on the “perception of the witness,” the rule presumes the underlying facts were observed or experienced by the witness. This portion of the rule incorporates the personal knowledge requirement of Criminal Rule 602.

892 S.W.2d at 889 (emphasis added). Rule 701 permits an opinion based on the perception of the witness. Bigby further explained that this component went to the personal knowledge of the witness such that the facts “underlying” the opinion were personally observed or experienced by the witness. So, as the majority correctly concludes, personal knowledge just means that the witness must have personally observed or experienced the facts giving rise to his opinion about the mental state of another, not that he has to have personal knowledge of the other’s mental state.

Arnold reasons that an opinion about another’s mental state should not be permitted because it is based on conjecture and can never be known for certain. This reasoning is at odds with what an “opinion” is. An opinion is one’s view of something that cannot be known for certain, based on facts that can be known. Webster defines “opinion” as “a view, judgment, or appraisal formed in the mind about a particular matter.” Webster’s *905New Collegiate Dictionary at 798 (1980 ed.) Black’s Law Dictionary explains “opinion evidence or testimony” in part as follows:

Evidence of what the witness thinks, believes, or infers in regard to facts in dispute, as distinguished from his personal knowledge of the facts themselves.

An opinion is simply the beliefs of the witness or inferences he has drawn; for this reason, it is important to ensure that the opinion is based upon identifiable facts within the personal knowledge of the witness.1

The majority says its holding is “in accord” with Arnold because “we agree that one cannot possess personal knowledge of another’s mental state.” Majority op. at 899 n. 10. But that does not approach the crux of the holding in Arnold. In Arnold, the defendants were convicted of disruptive activity on a university campus (participation in a “sit-in”). The State was required to prove the defendants “willfully” engaged in the prohibited conduct. The trial court ruled inadmissible testimony from several witnesses who were-not present at the scene of the sit-in. This Court explained the nature of the excluded testimony:

The excluded testimony would have described various events involving apartheid that had occurred on the University of Texas campus, and the relationship of these events to state, national, and international events that transpired before this sit-in. The testimony was also offered to give the jury “greater insight” into each appellants’ mental state immediately prior to and at the time of the incident in question.

Arnold, 853 S.W.2d at 546 (emphasis added). The defendants complained on appeal the excluded evidence was relevant to whether they “willfully” committed the alleged offense. The Court of Appeals upheld the exclusion of the evidence, stating, “these witnesses could not have testified as to each appellant’s state of mind — each appellant’s testimony was necessary for that.” We agreed with the Court of Appeals, quoting as follows from Ray’s Texas Law of Evidence:

“In general our courts permit a witness to testify as to hi? own intention or other state of mind where the same is material. * * * On the other hand decisions purporting to apply the opinion rule, uniformly exclude the testimony of a witness as to another person’s state of mind. It is said that since one person cannot possibly know another’s state of mind, his testimony is necessarily based on conjecture. This argument really invokes the rule requiring the witness to have personal knowledge of the matter about which he is to testify.”

Id. at 547. From the Court’s own recitation of the facts, the witnesses in Arnold were simply offering testimony about “events” that would bear on or give insight into each appellant’s state of mind. Therefore, Arnold stands for the proposition that a lay witness cannot even testify to events that give insight to another person’s mental state, or give opinion testimony that even bears on mental state. Today the Court holds that a lay witness can give his opinion as to another’s mental state if the opinion is “an interpretation of the witness’s objective perception of events.” Arnold cannot be reconciled with the holding of the majority and ought to be disavowed. The majority’s declaration that the two opinions are consistent does not make them so, and leads to confusion as to the state of the law.

With these comments, I concur in the judgment of the Court.

MANSFIELD, J., joins.

OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

CAMPBELL, Judge.

A jury found appellant, Barry Dean Kelly, guilty of murder and assessed his punishment at imprisonment for life. Tex.Penal Code § 19.02(a)(1). The Second Court of Appeals affirmed appellant’s conviction. Kelly v. State, 792 S.W.2d 579 (Tex.App.—Fort Worth 1990). We granted appellant’s petition for discretionary review, pursuant to Texas Rule of Appellate Procedure 200(c)(2), to determine whether the court of appeals erred in holding that the trial court did not abuse its discretion in admitting DNA “fingerprint” evidence1 at appellant's trial over his objection.2 We will affirm the judgment of the court of appeals.

Before trial, appellant filed a motion to suppress any expert testimony regarding DNA identification test results on the ground that such tests had “not gained general acceptance [as reliable] in the scientific community in which such testing belongs.” At trial, after the State indicated its intention to offer expert testimony regarding a DNA identification test, the trial court conducted a hearing to determine the admissibility of such testimony. The hearing was conducted outside the presence of the jury, pursuant to Texas Rule of Criminal Evidence 104(a) and (e).3

I. THE EXPERT TESTIMONY

Six witnesses testified at the suppression hearing — five for the State and one for the defense. According to the testimony presented, the State’s witnesses and their backgrounds were as follows: (1) Alan Matthews Giusti, holder of a B.S. degree in molecular biology from Yale University, former laboratory technician at Lifecodes Corporation;4 (2) Kevin McElfresh, holder of a Ph.D. degree in molecular and population genetics from the University of Georgia, laboratory supervisor at Lifecodes Corporation; (3) Philip Stewart Hartman, genetics professor at Texas Christian University in Fort Worth, never affiliated with Lifecodes; (4) Joseph Frank Sambrook, holder of a Ph.D. degree in microbiology, chairman of the biochemistry department at Southwestern Medical School in Dallas, never affiliated with Lifecodes; and (5) Robert C. Benjamin, holder of a Ph.D. degree in biology from Harvard University, professor of biology at the University of North Texas in Denton, never affiliated with Lifecodes.

In brief, the testimony of the State’s expert witnesses at the suppression hearing established the following: (1) it is generally accepted by molecular biologists that each person’s DNA is unique and does not *570change during that person’s lifetime (Hartman); (2) the “restriction fragment length polymorphism” (RFLP) technique,5 generally accepted by molecular biologists as reliable, can be used to compare a known sample of DNA with an unknown sample of DNA to determine whether the two samples share certain molecular characteristics (McElfresh, Hartman, Sambrook, Benjamin); 6 (3) studies of sample populations can be used to determine reliably the frequencies, within the general population, of the molecular characteristics in question (McElfresh, Hartman, Sambrook); (4) sufficient studies of sample populations have already been performed to allow reliable calculations concerning the frequencies, within the general population, of the molecular characteristics in question (McElfresh, Hartman, Sambrook); (5) a false “match” of a known DNA sample with an unknown DNA sample is impossible with the RFLP technique (McElfresh, Hartman, Sambrook, Benjamin); (6) reliable and generally accepted techniques are available to extract DNA from blood and semen stains (Hartman); (7) Lifecodes Corporation utilized both a generally accepted DNA extraction technique and the RFLP technique to compare DNA from appellant’s blood with DNA from a semen stain found at the home of Appellant’s victim (McElfresh, Giusti, Benjamin); (8) Lifecodes’ test showed that appellant’s DNA shared certain molecular characteristics with the semen stain DNA (Giusti); (9) the RFLP analysis in this case was performed by Lifecodes in a scientifically acceptable manner (Giusti).

John Thomas Castle, appellant’s witness at the suppression hearing, testified that he had a B.S. degree in chemistry from Angelo State University in San Angelo, and that he was the owner-operator of Castle Forensic Laboratories in Dallas. He testified further that, in his opinion, the RFLP technique, at least as applied to forensic samples, was not generally accepted in the scientific community. He also questioned the reliability of Lifecodes’ test results because, he claimed, Lifecodes had a policy of re-using certain laboratory materials.

At the conclusion of the testimony at the suppression hearing, appellant argued that DNA identification evidence was inadmissible under Frye v. United States, 293 F. 1013 (D.C.Cir.1923), because such evidence was, according to appellant, “not accepted [as reliable] in the scientific community and [by] the folks who deal with DNA.” Appellant also argued that insufficient population studies had been conducted to make a DNA “match” meaningful. The State responded that the holding in Frye was not binding on Texas courts and that the evidence in question had been shown to be reliable and thus admissible under Texas Rule of Criminal Evidence 702.

After the litigants concluded their arguments, the trial court stated:

I'm going to find that the DNA testing, genetic testing evidence is probative of material issues involved in the case. The material evidence is relevant. The evidence is relevant to the matters before the Court.

Its relevancy does not — its relevancy outweighs the prejudicial effect of it, and the Court will find that the testimony of the expert witnesses presented by the State established that the DNA testing procedure employed in this case is reliable and that it is generally accepted in the relevant scientific community.

For that reason, I will deny your motion to exclude the evidence of the DNA genetic tests and will permit the State to present such evidence before the jury.

(Emphasis added.)

Hartman, Giusti, Sambrook, and McEl-fresh testified again before the jury, essentially repeating the testimony they gave at the suppression hearing. In addition, however, Sambrook and McElfresh testified that, according to their calculations, only *571one person in approximately 13 million possesses DNA with the same molecular characteristics that Lifecodes’ test showed were shared by appellant’s DNA and the DNA extracted from the semen stain found at the home of appellant’s victim. In other words, Lifecodes’ test did not positively identify appellant as the source of the semen, but the test did place appellant within the almost infinitesimal class of males who could have been the source.

II.THE ARGUMENTS

Appellant argues now, as he did below, that the Frye “general acceptance” test governs the admissibility of scientific evidence in Texas courts and that the trial court abused its discretion in admitting the DNA evidence because, according to appellant, DNA identification tests — and Life-codes’ procedures in particular — are not generally accepted as reliable by any scientific community. In support of his argument, Appellant cites various authorities that have questioned the reliability of DNA identification testing. See, e.g., J. Neufield & N. Colman, When Science Takes the Witness Stand, Scientific American 46 (May 1990); Note, The Dark Side of DNA Profiling: Unreliable Scientific Evidence Meets the Criminal Defendant, 42 Stanford L.Rev. 465 (1990).

The State counterargues that the “helpfulness” test of Rule 702 governs the admissibility of all expert testimony, scientific or otherwise, and that the DNA evidence at Appellant’s trial was proven to be reliable and helpful and thus admissible under Rule 702.7

III.THE HOLDING OF THE COURT OF APPEALS

The Second Court of Appeals agreed with the State and held that the trial court did not abuse its discretion in admitting the expert testimony. More specifically, the court of appeals “found” that the DNA evidence was reliable, and thus admissible, “since expert testimony established the underlying scientific principle was valid, the technique applying the principle was valid, and the technique was properly applied for tests in this case.” Kelly v. State, 792 S.W.2d at 585.

IV.THE PRESENT VIABILITY OF THE FRYE TEST

To determine whether the court of appeals erred in holding that the trial court did not abuse its discretion, we must first determine what test governs the admissibility of novel scientific evidence in Texas criminal trials. We must then determine whether the trial court’s decision admitting the DNA evidence was reasonable given the testimony at the suppression hearing and given the governing test of admissibility.

The test which some jurisdictions8 use with respect to the admission of novel scientific evidence is the test that was enunciated in Frye:

Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.

*572293 F. at 1014. The Frye court thus imposed a “general acceptance” test on the admissibility of scientific evidence. See generally Jones v. State, 716 S.W.2d 142, 145-153 (Tex.App.—Austin 1986, pet. ref'd) (discussing pros and cons of Frye test).

Although this Court has never explicitly adopted the Frye test, on several occasions we have used a general acceptance test when reviewing lower court decisions regarding the admission of scientific evidence. See Zani v. State, 758 S.W.2d 233 (Tex.Cr.App.1988); Reed v. State, 644 S.W.2d 479 (Tex.Cr.App.1983); Cain v. State, 549 S.W.2d 707 (Tex.Cr.App.1977); Romero v. State, 493 S.W.2d 206 (Tex.Cr.App.1973). In all those cases, however, the trials were held before the promulgation of the Texas Rules of Criminal Evidence.

Since the promulgation of the Rules in 1986, Rule 702 has governed the admission of all expert testimony.9 That rule provides:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

We have recognized before that the “threshold determination” for a trial court10 to make regarding the admission of expert testimony is whether that testimony will help the trier of fact understand the evidence or determine a fact in issue. Duckett v. State, 797 S.W.2d 906, 910 (Tex.Cr.App.1990); see S. Goode, et al., Guide to the Texas Rules of Evidence § 702.2 (1988). Thus, in a case such as this — where the trial court was faced with an offer of expert testimony on a scientific topic unfamiliar to lay jurors — the trial court’s first task is to determine whether the testimony is sufficiently reliable and relevant to help the jury in reaching accurate results. “Unreliable ... scientific evidence simply will not assist the [jury] to understand the evidence or accurately determine a fact in issue; such evidence obfuscates rather than leads to an intelligent evaluation of the facts.” K. Kreiling, Scientific Evidence: Toward Providing the Lay Trier With the Comprehensible and Reliable Evidence Necessary to Meet the Goals of the Rules of Evidence, 32 Ariz.L.Rev. 915, 941-942 (1990).

If the trial judge determines that the proffered expert testimony is reliable (and thus probative and relevant), then she must next determine whether, on balance, that testimony might nevertheless be wnhelpful to the trier of fact for other reasons.11 For example, even reliable and relevant expert testimony may be unhelpful if it is merely cumulative, or would confuse or mislead the jury, or would consume an inordinate amount of trial time. In short, if the trial judge determines that the proffered expert testimony is reliable and relevant, she must still decide whether the probative value of the testimony is outweighed by one or more of the factors identified in Rule 403. See 3 J. Weinstein & M. Berger, Wein-stein's Evidence para. 702[03] (1991).

Is the Frye general acceptance test still a part of Texas law? We conclude that it is not. First, there is no textual basis in Rule 702 for a special admissibility standard for novel scientific evidence. Second, as should be fairly obvious, scientific evidence may be shown reliable even though not yet generally accepted in the relevant scientific community.12

*573Y. PROOF OF RELIABILITY

How does the proponent of novel scientific evidence prove it to be reliable? As a matter of common sense, evidence derived from a scientific theory, to be considered reliable, must satisfy three criteria in any particular case: (a) the underlying scientific theory must be valid; (b) the technique applying the theory must be valid; and (c) the technique must have been properly applied on the occasion in question. See generally Tex.R.Crim.Evid. 705; P. Giannelli & E. Imwinkelried, Scientific Evidence § 1-1 (1986). Under Rule 104(a) and (c) and Rule 702, all three criteria must be proven to the trial court, outside the presence of the jury, before the evidence may be admitted. Factors that could affect a trial court’s determination of reliability include, but are not limited to, the following: (1) the extent to which the underlying scientific theory and technique are accepted as valid by the relevant scientific community, if such a community can be ascertained; (2) the qualifications of the expert(s) testifying; (3) the existence of literature supporting or rejecting the underlying scientific theory and technique; (4) the potential rate of error of the technique; (5) the availability of other experts to test and evaluate the technique; (6) the clarity with which the underlying scientific theory and technique can be explained to the court; and (7) the experience and skill of the person(s) who applied the technique on the occasion in question. See 3 J. Weinstein & M. Berger, Weinstein's Evidence para. 702[03] (1991).

VI. THE PROPONENT’S BURDEN OF PERSUASION

What burden of persuasion does the proponent of novel scientific evidence carry under Rule 702?13 Unfortunately, our rules of evidence do not prescribe the burden of persuasion or imply what burden might be appropriate. In Zani v. State, 758 S.W.2d at 243, however, in addressing the burden of persuasion required of the proponent of posthypnotic testimony, we held that because of the “uncertainties inherent” in the evidence, “it [was] appropriate to require the proponent of such [evidence] to demonstrate ... by clear and convincing evidence, that such [evidence was] trustworthy.” Although Zani was a pre-Rules case, we believe that its reasoning on this issue remains persuasive. Because of the difficulty laypersons have in evaluating the reliability of novel scientific testimony, we conclude it is appropriate for the burden of persuasion to be enhanced, i.e., that the burden be that of clear and convincing evidence rather than simply the preponderance of the evidence. In other words, before novel scientific evidence may be admitted under Rule 702, the proponent must persuade the trial court, by clear and convincing evidence, that the evidence is reliable and therefore relevant. See E. Cleary, ed., McCormick on Evidence § 340 (1984).

VII. SUMMARY

To summarize, under Rule 702 the proponent of novel scientific evidence must prove to the trial court, by clear and convincing evidence and outside the presence of the jury, that the proffered evidence is relevant. If the trial court is so persuaded, then the evidence should be admitted for the jury’s consideration, unless the trial court determines that the probative value of the evidence is outweighed by some factor identified in Rule 403.

*574VIII. THE TRIAL COURT’S DECISION

We come finally to the question of whether the trial court abused its discretion in admitting the DNA evidence in the instant case. That is, we must determine whether the trial court’s decision was “within the zone of reasonable disagreement” given the evidence presented at the suppression hearing and given the requirements of Rule 702. Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Cr.App.1990);14 see also Duckett v. State, 797 S.W.2d at 913.

The trial court was, of course, the sole judge of the weight and credibility of the evidence presented at the suppression hearing. Viewing that evidence in the light most favorable to the trial court’s decision, we conclude that it was demonstrated by clear and convincing evidence that the scientific principle underlying the RFLP technique was valid, that the RFLP technique itself was valid, that the technique was properly applied in this case, and that the related population frequency studies were also valid and reliable. Moreover, there is nothing in the record to suggest that the probative value of the DNA evidence was outweighed by one of the Rule 403 factors. We conclude, therefore, that the trial court’s decision to admit the DNA evidence was reasonable given the evidence presented at the suppression hearing and given the requirements of Rule 702. The court of appeals did not err in its holding that the trial court did not abuse its discretion in admitting the DNA evidence.

The judgment of the court of appeals is AFFIRMED.

CLINTON, Judge,

concurring.

This cause is important, not just because it declares that DNA evidence may be found admissible in Texas, but more so because it announces a new standard for determining admissibility of evidence premised upon novel scientific theories or techniques. In announcing the new standard the majority squarely rejects the test in Frye v. United States, 293 F. 1013 (C.A.D.C.1923), which this Court has seen fit to invoke, albeit sporadically, over the years. Zani v. State, 758 S.W.2d 233, at 241 (Tex.Cr.App.1988). Certainly the Frye rule is not without problems. See, e.g., Giannelli, P., The Admissibility of Novel Scientific Evidence: Frye v. United States, A Half-Century Later, 80 Colum.L.Rev. 1197, 1204-1231 (1980). Nevertheless, I hesitate so readily to relinquish the advantages of “general acceptance in the relevant scientific community” as a substantive standard by which a court can determine reliability, and hence, relevance of a novel scientific theory or technique.

The beginning, middle and end of the majority’s analysis is Tex.R.Cr.Evid., Rule 702. This rule reads:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

I believe the majority opinion errs to premise its argument exclusively on Rule 702.

Admissibility of novel scientific evidence, as with admissibility of any evidence, is first and foremost a question of relevancy. And relevance of novel scientific evidence is a function of its reliability.1 But Rule 702 is not meant to insure the relevance of “scientific, technical, or other specialized knowledge.” Nor, inasmuch as relevance of scientific, etc., knowledge is a function of reliability of the theory or technique espoused, does Rule 702 require that “sci*575entific, technical or other specialized knowledge” be reliable. Tex.R.Cr.Evid., Rules 401 and 402 are the provisions that require reliability, and hence relevancy, of “specialized knowledge.” If such knowledge is not reliable/relevant, it will be inadmissible under Rule 402. That such knowledge must “assist the trier of fact to understand the evidence or to determine a fact in issue,” it seems to me, means something else entirely. Under Rule 702, even if reliable/relevant, specialized knowledge must either supply or refute, or at least illuminate, an elemental fact (or some evidentiary fact leading to an elemental fact) in a way not readily apparent to a jury of laymen without that knowledge. Whenever it may contribute to a fuller comprehension by the jury of the evidence or the issues involved, “specialized knowledge” is admissible. By implication, specialized knowledge which does not contribute in any degree to a fuller comprehension is inadmissible, even if reliable/relevant.2 My point is this: novel scientific evidence must be “reliable,” if at all, not because otherwise it will not “assist the trier of fact” as required by Rule 702 (although that will probably be true, incidentally, since irrelevant evidence by definition fails to assist the trier of fact); rather, it must be reliable in order to be deemed relevant, under Rules 401 and 402. See note 1, ante.

In any event, I concur with the majority inasmuch as it concludes that admissibility of evidence of or based upon a novel scientific theory or technique is a function of reliability. It must be shown by the proponent of such evidence that the new theory or technique provides a valid test for the probability of the existence, vel non, of a fact of consequence to the determination of the action. Rule 401, supra. What is not “fairly obvious” to me, however, is that “scientific evidence may be shown to be reliable even though not yet generally accepted in the relevant scientific community.” Majority at 573. The majority does not elaborate.

The majority does ask, “How does the proponent of novel scientific evidence prove it to be reliable?” In answering its own question the majority supplies much that is helpful in the way of procedure. I agree that the proponent should be required to show that the theory behind a new scientific procedure is valid; that the technique is a valid application of the theory; and that the proper protocols have been followed in applying the technique in the individual case. I can accept that “all three criteria must be proven to the trial court” as a matter of admissibility of the evidence.3 Although I do not think it is compelled, I agree it is a sound idea to require that the trial court find these criteria have been established by clear and convincing evidence.

When it comes to announce a substantive test by which trial courts can exercise, and appellate courts can review the discretion to admit or exclude novel scientific evidence, the majority opinion is less than satisfactory. It is true the majority expressly makes the extent of acceptance of a new scientific theory or technique a consideration for the trial judge in determining validity. Unlike the Frye rule, however, the majority's test leaves the ultimate decision of validity to the trial court. The majority rejects the Frye rule because under it some evidence based upon presum*576ably “valid” theory and technique will be inadmissible simply because the “relevant scientific community” has not caught up. This seems to me to beg the question of who most properly decides questions of validity of novel scientific theories. The greatest advantage of the Frye test is that it essentially leaves the question of validity of novel theories and techniques to those whose vocation it is to view the world from the perspective of the scientific method, viz: the scientists. Trial judges are ill equipped to make the determination whether a given theory or technique has been sufficiently “tested in the crucible of controlled experimentation and study” that it can accurately be said to gauge the probability of the existence, vel non, of a fact in issue.4 The Frye rule does not require him to make this determination. Instead it requires him to decide whether scientists themselves believe the theory or technique has been sufficiently tested.

The majority worries that evidence that may ultimately be accepted as reliable by the general run of scientists will be lost in the meantime under the Frye rule. The contested evidence may make the difference between conviction and acquittal. It seems to me that a conservative approach is justified, however. Convictions now on the basis of evidence that later proves universally rejected by the scientific community will not only result in injustice, but also make the courts look gullible, even foolish.

Presumably the majority would respond that the trial court can measure the sufficiency of a novel theory or technique to produce relevant evidence by the testimony, in the form of opinion or otherwise, of an expert, admissible under Rule 702, as to its reliability. This testimony itself, however, may be subject to objection under Tex.R.Cr.Evid., Rule 705(c), “unless the party offering the testimony first establishes sufficient underlying facts or data.” But what, in this context, constitutes sufficient underlying facts or data? Is it sufficient that the expert himself believes the new theory has been sufficiently tested by whatever means that scientific method would prescribe in the circumstances? And what is the basis of his opinion of what scientific method would prescribe as an appropriate regimen of testing? Are the underlying facts and data supporting that opinion sufficient under Rule 705(c)? These questions are esoteric to begin with, involving as they do a discipline beyond the training and common experience of the average judge. They are doubly esoteric because they involve new areas of science beyond the common exposure of scientists themselves. Yet the majority is content to let the trial judge measure reliability, and hence relevance of a novel scientific theory by the untested, and potentially untestable opinion of as few as one “expert.”

The majority believes that validity of a novel theory or technique can best be aired in context of the adversarial process. The proponent of evidence presents his expert to champion the cause of admissibility, and then the opponent counters with his own expert to tell the trial court, from the perspective of the scientific method, all the deficiencies in the testing to date that would render the theory or technique questionable. The trial court then makes a reasoned and informed decision. Entertaining the assumption that the trial judge can adequately take the place of the relevant scientific community as the arbiter of acceptability of new theories or techniques, this would seem an appropriate procedure. It certainly has the advantage of not being anti-systemic; that is, ideally, how the adversarial process works. But will the system as it presently exists actually accommodate the level of adversarial testing we almost have to assume is necessary if we are to allow trial court judgments to replace scientific consensus?

In our rules of criminal procedure we have no notice or pre-trial discovery requirements tailored to the use of evidence based upon novel scientific theories or techniques. The first time a defense attorney may see the evidence coming is during voir *577dire of a State’s expert witness pursuant to Rule 705(b). By then it is clearly too late to marshall experts to formulate an opposing opinion (if any) as to the validity of either principle or technique underlying the proffered evidence. Moreover, counsel must obtain “prior court approval” of fees for expert testimony on behalf of an indigent defendant under Article 26.05, Y.A.C.C.P. What is a “reasonable expense” for expert testimony is pre-deter-mined on a county by county basis,5 and may prove woefully inadequate for the kind of time and effort involved in ascertaining reliability of a novel scientific theory or technique. At any rate, without notice of what is coming, counsel for the indigent defendant can hardly obtain “prior court approval” for funds to pay an expert of his own. “Provisions for notice, full discovery, the opportunity to re-examine evidence, and the appointment of defense experts are critical components” of the type of procedure the majority advocates. Giamtelli, supra, at 1245. I doubt we are procedurally equipped to accommodate these needs.

In short, the kind of adversarial testing that would be adequate to replace a Frye standard is simply not likely to occur. Trial judges will instead hear testimony from only one side of the issue, frequently from the representative of a commercial lab somewhere that has a vested interest in having its novel theory or technique held admissible in a court of law.6 These circumstances hardly foster impartial decision making.

Preferable, in my view, would be to impose a substantive requirement on the part of the proponent of scientific evidence that as part of his burden of showing “validity” of both the principle and technique he demonstrate by clear and convincing evidence that both have gained general acceptance in the relevant scientific community. As a practical matter, since the State is more often the proponent of such evidence, such a requirement will place the onus on the party with the greater resources. Because the question of general acceptance embraces the debate, if any, among scientists themselves as to validity of a novel theory or technique, the trial court is assured of hearing both sides of the argument, as well as the scientific consensus, if any, before ruling.

Not just as a practical matter, but as a legal matter as well, it seems to me the proponent of such evidence should have a burden to show general acceptance in the scientific community. The proponent should have to show such general acceptance in order to establish threshold relevance, and hence admissibility under Rule 402. It is true that ordinarily “the law furnishes no test of relevancy.” See Montgomery v. State, 810 S.W.2d 372, at 391 (Tex.Cr.App.1991) (Opinion on rehearing on Court’s own motion). However, that is because ordinarily a trial court determines relevancy by “common observation and experience, and reason[s] from there in deciding whether the proffered evidence has ‘any tendency to make the existence of any fact of consequence to the determination of the action more or less probable than it would be without the evidence.’ ” Id. As I hope I have made clear already, however, whether a new scientific theory or technique has any such tendency is not within the compass of common observation and experience. Only science in general can have the necessary perspective. And the best evidence of that is, of course, evidence of general acceptance, vel non, in the relevant scientific community.

If the Court is reluctant to impose a Frye-type test within the relevancy provisions of Rules 401 and 402, another possibility would be to incorporate it within Rule 705(c).7 We could rule that as a matter of *578law the proponent of novel scientific evidence “does not have a sufficient basis for his opinion” if the theory or technique he relies on is not generally accepted in the relevant scientific community — that absent such general acceptance, he has not established “sufficient underlying facts or data.” We would not thereby deviate from interpretation of the Federal Rules, since they contain no analogue to our Rule 705(c).

By focusing exclusively on Rule 702, and by refusing to acknowledge the utility of general acceptance in the relevant scientific community, or some improvement thereon, as a substantive standard for trial courts to use in determining reliability, it seems to me, the majority errs. The trial court did rule in this cause that “the DNA testing procedure employed in this case ... is generally accepted in the relevant scientific community.” Because the record supports that conclusion, I concur in the result the majority reaches, but do not join its opinion.

BAIRD and OVERSTREET, JJ., join in this opinion.

OPINION

COCHRAN, J.,

delivered the opinion of the Court

in which PRICE, WOMACK, JOHNSON, and HOLCOMB, JJ., joined.

Appellant was originally convicted in 1990 of capital murder for the shooting deaths of his wife’s mother, father, and brother. Based upon the jury’s answers to the special punishment issues, the trial judge sentenced him to death. This Court upheld his conviction and sentence on direct appeal.1 In 2007, the Fifth Circuit Court of Appeals granted habeas relief and remanded the case for a new trial on punishment.2 On retrial in 2008, a second jury sentenced appellant to death. Appellant raises twenty-five points of error. Finding no reversible error, we affirm the judgment and sentence.

Factual Background

Karen Vicha was appellant’s third wife. They were married in July 1988 and lived in a house down the road from her brother and across the street from her parents. Appellant was almost forty years old. The marriage quickly disintegrated,3 and, after *262a year, Karen told appellant to move out. She wanted a divorce. Appellant attempted to talk her out of this decision and would randomly call her and show up at her work place.

Appellant then kidnapped Karen as a further effort to dissuade her from divorcing him. He hid in the trunk of her car while she was at a bar one evening with a girlfriend. When Karen started to drive home, appellant folded down the back seat and “popped out of the trunk with a knife.” He jumped over the console, halfway into the front seat, and stuck the knife against Karen’s ribs. He told her to keep driving until they came to a field. Karen stopped the car, and appellant said that he if couldn’t have her, then no one else could. He pulled out a roll of black electrical tape, but Karen kept talking, and, after about two hours, she convinced him that she would reconsider the divorce issue. He let her go, and she called her brother, Bobby, who was a police officer. Bobby told Karen to report the kidnapping.

After he arrested appellant for kidnapping Karen, Officer James Head looked in his patrol-car mirror and saw appellant staring at him with a look that “made the hair on the back of [his] head stand up.” He got “the heebie-jeebies.” Appellant muttered something like “They’re going to be sorry.” Officer Head called Karen’s brother, Bobby, and warned him about appellant. When appellant was released on bail for the kidnapping charge, Bobby got Karen a German shepherd for proteetion. A few days later, appellant told Karen, “Oh, I see you — you’ve got a dog now.... [TJhat’s a big mean dog you’ve got.” Shortly thereafter, Karen found the dog lying dead in front of her house.

Nine days after he had kidnapped Karen, appellant went to her house in the early afternoon. As Karen’s three daughters each came home from school along with Bobby’s son,4 appellant handcuffed them, tied up their feet, and taped their mouths closed. Karen’s oldest daughter testified that she heard appellant cut the telephone lines. Then he left to ambush and shoot Karen’s father, mother, and brother Bobby as each of them came home.5

Appellant returned to Karen’s house after the triple killings and waited for his wife to come home from work. He told the children, “I wish I had blown you away like I intended to.” When Karen arrived, appellant came out of one of the bedrooms with a gun. Appellant said, “Karen, I’ve killed your momma and your daddy and your brother, and they are all dead, and nobody is going to come help you now.” She didn’t believe him, so appellant showed her Bobby’s gun lying on the kitchen table and pulled the curtains so she could see her father’s truck parked behind the house. He showed her $1,000 in cash that he had taken from her mother. Appellant told Karen that she was lucky that he hadn’t molested her daughters, and he told her to kiss them good-bye. She *263did. He made her put on handcuffs. Karen talked appellant into leaving the house and taking her with him.6 He said he was going to take her away for a few weeks and torture her.7

As appellant drove, Karen tried to escape by freeing one hand from the handcuffs and grabbing at the steering wheel, making the car swerve into a ditch. She grabbed one of appellant’s guns, pointed it at his stomach, and pulled the trigger, but nothing happened. Then Karen and appellant fought over the gun, with appellant repeatedly pulling the trigger, but still the gun did not fire. Appellant pistol-whipped Karen until she couldn’t see for all of the blood on her face. A woman passerby started shouting at appellant, “[W]hat are you trying to do to that woman,” so appellant drove the car out of the ditch as Karen lay in the passenger seat. He shouted at her that if she got blood on his clothes, he would kill her. But he was also rubbing her between her legs as he drove. He told her that his reputation was ruined because she had had him arrested and his name was in the papers.

He drove to a deserted field in Bosque County where he threatened to rape her. After dark, he drove out of the field, but they passed a sheriffs patrol car which turned around to follow them. Appellant grabbed a knife and started stabbing Karen’s chin, forehead, and nose, as he was driving. Appellant said that he did not want to die in prison, so he “floored it” and rammed into a parked car. After the crash, appellant turned to Karen and said, “I guess now you’ll get a new car.” Both appellant and Karen were injured in the crash. Officers had to cut the car door open to get Karen out. Appellant was found with Karen’s father’s watch and wallet, as well as .37 and .38 caliber revolvers.

Although appellant was forty years old when he committed this triple murder, the State’s evidence showed that he was no stranger to violence. He had a long history of brutalizing and molesting women. Appellant beat both of his former wives and molested several young girls, including relatives.

His first wife, Pam Woolley, testified that they were married in 1970 when appellant was twenty-two. They had two children, but their marriage started downhill after two years. By 1974, appellant had become violent, and he used to beat her on the head so that her hair would hide the marks.8 Pam said that appellant could go from normal to extremely angry in a split second, and he always blamed her for his violent acts. Appellant told her that if she ever filed for divorce, he would “fix her” so no other man would look at her again.

During this ten-year marriage, appellant molested Pam’s younger sister and *264punched her on the mouth, “busting” her lip. He molested his children’s thirteen-year-old babysitter while teaching her how to water ski. He groped the breast of another neighborhood girl. In 1979, when appellant was thirty, he raped his cousin who was about fifteen at the time. When appellant’s niece was fifteen, he grabbed her ankles as she sat in a chair wearing a nightgown, spread open her legs, and gestured with his tongue as if he were performing oral sex on her. Later that same day, he forcibly kissed her and then threw her a $5 bill.

Appellant married Candy Ryan, his second wife, when he was thirty-five and she was eighteen. After one year of marriage, appellant started physically abusing her. He regularly hit her on the head. Once he grabbed her by the hair and repeatedly hit her against the cabinet and floor. After she dared to throw something at him, he hit her with a sledge hammer. Candy said that appellant had a “switch-type” personality — changing from sweet to nasty in a split-second. He stalked her, both during and after their marriage. He would sit in his car outside the gas station where Candy worked, and, if a customer stayed inside too long, appellant came in and gave the customer an intimidating look. After Candy left appellant, he would call her late at night and tell her where she had been, whom she had been with, and what she had been doing. Appellant threatened Candy’s father when he tried to help Candy leave.

Appellant’s childhood did not augur well for his future. His earliest years were spent in the custody of an alcoholic stepfather who worked only periodically and a sickly, withdrawn, and depressed mother. When appellant was four, his mother was institutionalized in the Austin State Hospital with a psychoneurotic disorder. Appellant, his brother, and his older sister were sent to the Corsicana State Home for Children. Because of her promiscuous acting-out, appellant’s older sister was sent to a convent school, and his problematic older brother was placed under the supervision of the Waco Probation Department. Appellant remained at the Home for twelve years.

When appellant was fifteen, a psychiatrist, Dr. Hodges, evaluated him and concluded that he was paranoid, distant, and impulsive; he showed poor self-control, displayed hostility to women, and blamed others for his own bad conduct. Dr. Hodges’s impression was that appellant “represented] a sociopathic personality disturbance of the dissocial type.” People with this diagnosis gratify their own desires without regard for the cost to others. Appellant’s “long term prognosis [did] not look good.”

At age seventeen, appellant joined the Marine Corps and was sent to Vietnam. Although he received an honorable discharge after his four-year tour of duty, he was not recommended for re-enlistment because of a series of violations and convictions. He married his first wife shortly after he left the Marines.

Dr. Richard Coons, a psychiatrist, had testified at appellant’s 1990 trial that he would be a future danger. Dr. Coons testified at the 2008 retrial that appellant would still be a future danger even though appellant did not have a single disciplinary report for the eighteen years that he had been on death row. Dr. Coons explained this discrepancy by stating that all those on death row have an incentive to behave because their convictions are on appeal, and thus they are less violent than they would be in the general prison population.

Appellant called several witnesses to attest to his prison reformation and lack of violence for the entire time that he had been on death row. According to one fel*265low inmate, appellant was well liked by everyone; he was always even-tempered and had the ability to “talk sense” into some of the more violent inmates. He said that appellant had organized a sports league at the Ellis Unit and that he helped inmates write letters and would read them their letters from family members. After Death Row was moved to the Polunsky Unit, appellant’s behavior was the same; he was always helpful and upbeat.

Another inmate testified that appellant would take people “under his wing” and help the “agitated” ones. He stated that, while at the Ellis Unit, appellant was an SSI, which was like a trustee, and would often walk around with female officers. A third inmate testified that appellant was generous and gave commissary items to other inmates. A fourth inmate said that appellant helped him to learn English and to file a federal habeas petition. Appellant helped mentally-retarded inmates and was known for his respect for the law and God.

Appellant’s older sister testified about their childhood and how appellant changed for the worse after coming home from Vietnam. She said that, shortly before the triple murders, she saw appellant throwing away many of his most prized possessions, and he began talking about his experiences in Vietnam, something he had never done before. On the day of the murders, appellant threw his truck keys at her and said that, if anything happened, the truck was hers. Appellant’s son testified that appellant taught him welding, and he described his father as loving and helpful to others.

Dr. Cunningham, a forensic psychologist, testified that he had reviewed appellant’s prison record which contained no disciplinary write-ups. Dr. Cunningham conducted a violence risk assessment of appellant. In his opinion, appellant had a very low probability of committing acts of violence while in prison.

Sufficiency of the Evidence to Prove Future Dangerousness

In his first and second points of error, appellant asserts that the evidence is legally and factually insufficient to support the jury’s finding that there is a probability that he would commit criminal acts of violence in the future. As appellant acknowledges, we have consistently held that we lack authority to conduct a factual sufficiency review of the jury’s future-dangerousness verdict.9 Appellant’s arguments do not persuade us otherwise.

In assessing the legal sufficiency of the evidence to support future dangerousness, we “view the evidence in the light most favorable to the jury’s findings and determine whether any rational trier of fact could have found beyond a reasonable doubt that there is a probability that [the defendant] would commit criminal acts of violence that would constitute a continuing threat to society.”10 Only if, after reviewing all of the record evidence, we conclude that a rational jury would necessarily have entertained a reasonable doubt about the defendant’s future dangerousness, will we find that the evidence is legally insufficient.11

Appellant does not suggest that the evidence of his gruesome triple murder and his life-long history of violence toward women and young girls is — viewed in a *266vacuum — insufficient to support the jury’s finding. Clearly it is sufficient. Instead, he argues that, like Saul on the road to Damascus, he has experienced a character conversion while spending the last eighteen years in prison with a spotless disciplinary record. He has proven that he no longer poses any realistic threat of violence. This is, at first blush, a compelling argument.

Appellant notes that he was almost sixty years old and in poor health12 at the time of the present trial. Appellant points to the evidence that shows that he has not merely stayed out of trouble for eighteen years in prison, but that he has made positive contributions to his prison society. He worked in the prison garment factory when he was housed in the Ellis Unit; he helped diffuse potential conflicts by talking “sense” into frustrated inmates; he formed a prison sports league; he gave commissary items to inmates who did not have money; he helped an inmate learn English and draft legal papers. Dr. Cunningham, his expert forensic psychologist, placed appellant in the lowest risk group for violence in prison. But, as the prosecutors pointed out, appellant had done many of these same positive things before the murders as well: he coached one of Karen’s daughter’s baseball teams; he fixed things around the house; he tended the garden; he praised Karen; he repaired their car; he helped organize a school sports banquet. Appellant’s son, Gordon, testified that his father helped him with sports and took him fishing and hunting. He taught Gordon welding, electrical work, and a good work ethic. He was a very patient teacher and friendly, talkative, happy, and helpful to others.

Appellant agrees with the proposition that “the past is the best predictor of the future,” and he relies upon a spotless, positive prison record as a realistic predictor of the future. Appellant concludes that, “[i]n light of [his] age and his prison record, ... the only rational finding in this case is that he would not be a continuing threat to society. For that reason, his sentence must be vacated.”13

This is the same argument that appellant made during the trial, and the jury must have taken it seriously because it asked for just three pieces of evidence during its deliberations, evidence that was directly relevant to this argument:

(1) Dr. Hodges’s Austin State School psychiatric report from 1964 when appellant was 15. That report stated that appellant seemed paranoid and distant and “extremely hostile to women”; Dr. Hodges’s impression was that “this boy represents a so-eiopathic personality disturbance of the dissocial type.”14 He concluded, *267“The long term prognosis does not look good.”

(2) The military medical record from appellant’s 1967 self-inflicted stabbing wound in his thigh after he had a fight with his girlfriend.15 According to the military doctor, appellant “revealed evidence of lifelong maladjustment.” On the hospital ward he was “hostile and belligerent” and only slowly “began to conform to the ward milieu.”

(3) The pictures and cards that appellant had in his death row cell. These included numerous pictures of scantily clad young women and girls — young gymnasts and skaters — as well as romantic cards and photographs from a female pen pal.

The jury had also heard from several different sources about appellant’s mercurial moods: one moment calm and sweet, the next moment in a towering rage.16

The jury also heard evidence that appellant, after all his time on death row, was still hostile to women. Karen testified that when she appeared for a hearing in 1998, almost ten years after appellant’s original conviction, appellant “turned around and watched me sit down. And then, after that, he kept turning around and looking at me and grinning.” It was a “weird evil grin.” Karen “called it to the Judge’s attention, and then he told him to stop. And then, he did it again. And [the judge] told him — I think his words were, I have to admonish you for that and I’ll have to call you in contempt if you don’t stop it.” According to Karen, appellant had that same grin when she testified at the 2008 trial.

Appellant’s attorney explained at trial that, “I’m not saying Bill Coble is a different person — okay—than he was in 1989. But you can see that he’s made changes. You can see that he has adapted himself to prison environment, that[ ] he’s adapted himself to institutional life. That’s very clear.” That is clear; appellant has adapted very well to prison life, but that fact, by itself, does not resolve the special issue:

Is there a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society?17

This question is essentially a normative one as the Legislature declined to specify a particular level of risk or probability of *268violence.18 But the “future dangerousness” special issue ensures that no defendant, regardless of how heinous his capital crime, will be sentenced to death unless the jury finds that he poses a real threat of future violence.

The special issue focuses upon the character for violence of the particular individual, not merely the quantity or quality of the institutional restraints put on that person.19 As we recently stated in Estrada v. State, 20 “This Court’s case law has construed the future-dangerousness special issue to ask whether a defendant would constitute a continuing threat ‘whether in or out of prison’ without regard to how long the defendant would actually spend in prison if sentenced to *269life.”21 That is, this special issue focuses upon the internal restraints of the individual, not merely the external restraints of incarceration. It is theoretically possible to devise a prison environment so confining, isolated, and highly structured that virtually no one could have the opportunity to commit an act of violence, but incapacitation is not the sole focus of the Legislature or of our death penalty precedents.22

The Supreme Court has stated that “a state capital sentencing system must: (1) rationally narrow the class of death-eligible defendants; and (2) permit a jury to render a reasoned, individualized sentencing determination based on a death-eligible defendant’s record, personal characteristics, and the circumstances of his crime.”23 Thus, juries appropriately focus upon the defendant’s individual character for violence and the probability that he would commit acts of violence in whatever society he found himself.24 Obviously, the likelihood that a defendant does not or will not pose a heightened risk of violence in the structured prison community is a relevant, indeed important, criterion, but it is not the exclusive focus of the “future dangerousness” issue.

There is no denying appellant’s impressive history of nonviolence in prison. Nor did the prosecutors at trial try to minimize that record. They noted that appellant has always done some good things in his life. The issue, however, is whether he is the same person — with the same character for sudden explosive violence — that he was when he was diagnosed at age 15 as having a “sociopathic personality disturbance of the dissocial type.” Has his character changed since he was again diagnosed as having a lifelong history of maladjustment, belligerence and violence, when he was hospitalized at the age of 19 after fighting with his fiancee and stabbing himself in the thigh as a Marine? Was the “evil grin” Karen said that he gave her in court when appellant was fifty years old, and then again when he was sixty, indicative of a continuing animosity and character for brutality toward women? And did the pictures in his death row cell indicate an unnatural interest in young, athletic, scantily clad women for a sixty-year-old man *270with a heart condition? It was the jury’s duty to assess appellant’s present character for future dangerousness, and there was ample evidence to support its finding, beyond a reasonable doubt, that appellant had not experienced a conversion on the road to Damascus; rather, he had the same character for violence at age 60 that he did at ages 15, 19, and 40, despite his spotless prison record.25

The evidence is legally sufficient to support the jury’s finding on the future dangerousness special issue. We overrule points of error one and two.

The Admissibility of Dr. Coons’s Expert Testimony

In points of error three and four, appellant contends that Dr. Richard Coons’s expert testimony concerning future dangerousness was not admissible under Rule 70226 because it was insufficiently reliable. We agree. In point of error five, appellant asserts that this type of evidence fails to meet the heightened reliability requirement of the Eighth Amendment, but the United States Supreme Court, in Barefoot v. Estelle, 27 rejected this argument, and we are required to follow binding precedent from that court on federal constitutional issues.28

A. The Daubert/Kelly Hearing.

At trial, appellant objected to Dr. Coons’s proposed testimony and requested a Daubert/Kelly29 hearing outside the presence of the jury. At that hearing, Dr. Coons testified that he is board certified in general psychiatry and has been practicing forensic psychiatry for thirty-one years. He has evaluated the competency or sanity of between 8,000 to 10,000 people, has performed 150 evaluations of “future dangerousness,” and has testified in fifty trials as an expert.

Dr. Coons testified that psychiatric principles are commonly used when making determinations of a person’s danger to himself or others in the context of involuntary psychiatric commitments. He said that he also relies upon psychiatric principles when he evaluates defendants for “future dangerousness” for capital murder trials. He repeatedly stated that “the best predictor of the future is the past” and noted that

there are certain trends in people who are, in other words, habit patterns or personality patterns that — that we rely *271on. Um, and then, of course, there’s the experience one has, the training and then the experience that one has in seeing quite a number of people and, uh— uh — watching classifications within various jails and so forth. Uh, those are kind of the principles or the things that are — opinions are based on.

Dr. Coons noted that there are some psychiatric diagnoses that are listed in the DSM,30 such as antisocial personality disorder, that might indicate that a person is dangerous. But in this case, Dr. Coons relied on materials supplied by the District Attorney’s Office.

Dr. Coons explained his standard methodology in assessing the issue of future dangerousness. For at least the past twenty years he has relied upon several different factors:

(1) The person’s history of violence;

(2) The person’s attitude toward violence;

(3) The particulars of the criminal offense;

(4) The person’s personality and general behavior;

(5) The person’s conscience; and

(6) Where the person will be — in or out of prison.

He assesses these factors based on the information that he has been given. This is his own personal methodology. He does not know whether others rely upon this method, and he does not know of any psychiatric or psychology books or articles that use his factors. But “[t]hese are matters that are discussed commonly at — at forensic meetings and among forensic psychiatrists .... [B]ut generally speaking, those are the — are the kinds of things that, uh, forensic psychiatrists would take into consideration in reaching an opinion.” He doubts that his methodology is shared by everyone because different psychiatrists construct their own methodologies.

Dr. Coons stated that multiple psychiatrists would not necessarily agree on what is important in the first factor — looking to past conduct to predict future conduct. “I’m the one who’s making the decision— about whether it means something to me in terms of what I — my education or experience or background is.” It is a subjective evaluation. When assessing past violence, Dr. Coons looks at its nature and context.

The same subjectivity is true for the second factor, a person’s attitude about violence, as well as the third factor, the circumstances of the offense. Two different psychiatrists may come to different conclusions based on the same facts. Dr. Coons said that forensic psychiatrists develop an experiential body of knowledge and information and approach that helps them make their decisions. But Dr. Coons disagreed that it was “just a gut feeling.”

When it comes to the fourth factor of personality and behavior, Dr. Coons looks to whether the crime was an aberration or whether that person has had a problem looking out for other people. Is he controlling? Manipulative? With the fifth factor, “conscience is involved in — in helping people control their behavior. And, I mean, really, I guess almost everybody knows that.” There is no yardstick to measure it. With the final factor, Dr. Coons stated that if the person is on death row he will be less violent because “everybody that’s on death row is on appeal by definition. And they tend to be on their good behavior. Uh, because if they — on their bad behavior and they get another trial or punishment, they uh — they know *272they’ll hear about it again. Their violence on death row or threats or whatever.”31

All of these factors overlap and blend, but Dr. Coons knows of no book or article that discusses these factors or their overlap. He is not aware of any studies in psychiatric journals regarding the accuracy of long-term predictions into future violence in capital murder prosecutions or of any error rates concerning such predictions. Nor is he aware of any psychiatric studies which support the making of these predictions. Dr. Coons has never gone back and obtained records to try to check the accuracy of the “future dangerousness” predictions he has made in the past. He cannot tell what his accuracy rate is.

On redirect, the prosecutor asked Dr. Coons to read from a legal brief containing the names and titles of some articles on future dangerousness that had been filed in a different case, but Dr. Coons was not familiar with any of those articles.

Based on this testimony, the trial judge found that Dr. Coons qualified as an expert witness, that the subject matter of his testimony was an appropriate one for experts, and “that admitting the expert testimony will actually assist the factfinder in deciding this case.”

Dr. Coons then testified before the jury and, in response to a lengthy hypothetical setting out the salient features of appellant’s life and crimes, opined that there was a probability that appellant would commit future acts of violence.

B. Legal Principles Concerning the Admission of Expert Psychiatric or Psychological Testimony Concerning Future Dangerousness.

The admission of expert testimony is reviewed on appeal for an abuse of discretion.32 However, trial judges must act as a true “gatekeeper” when addressing the reliability and relevance of expert testimony.33 In Daubert, the United States Supreme Court held that when the subject of the expert’s testimony is “scientific knowledge,” the basis of his testimony must be grounded in the accepted methods and procedures of science.34 As that court explained,

[I]n order to qualify as “scientific knowledge,” an inference or assertion must be derived by the scientific method. Proposed testimony must be supported by appropriate validation — i. e., “good grounds,” based on what is known. In short, the requirement that an expert’s testimony pertain to “scientific knowledge” establishes a standard of eviden-tiary reliability.35

*273Four “general observations” guide the inquiry into scientific reliability: (1) falsifiability; (2) peer review and publication; (3) the existence of methodological standards, including the error rate; and (4) general acceptance within the relevant scientific field.36 The goal of these “flexible” guidelines is to evaluate the admissibility of expert testimony by the standards that comparable experts within the same scientific field use in evaluating each other’s professional work.37

In Kelly v. State,38 this Court adopted several procedural and substantive limitations upon the admission of expert scientific testimony to ensure that unreliable expertise would be excluded from the jury’s consideration.39 Under Kelly, a trial judge must, upon request, conduct a “gatekeeping” hearing outside the presence of the jury to determine whether scientific evidence is sufficiently reliable40 and relevant41 to help the jury in reaching an accurate result. Then the judge must decide whether, on balance, that expert testimony might nonetheless be unhelpful or distracting for other reasons.42 To be considered reliable, evidence from a scientific theory must satisfy three criteria: “(a) the underlying scientific theory must be valid; (b) the technique applying the theory must be valid; and (c) the technique must have been properly applied on the occasion in question.”43 The trial court’s essential gatekeeping role is to ensure that evidence that is unreliable because it lacks a basis in sound scientific methodology is not admitted.44

Forensic psychiatry is certainly a science;45 as Dr. Coons stated, it is prac*274ticed solely by those with a medical degree.46 It may be a “soft science,” but trial courts, in their gatekeeping function, must ensure that the expertise is not only soft, but that it is science as well.47 “Soft” science does not mean soft standards.48 When “soft” sciences are at issue, the trial court must inquire “(1) whether the field of expertise is a legitimate one, (2) whether the subject matter of the expert’s testimony is within the scope of that field, and (3) whether the expert’s testimony properly relies upon and/or utilizes the principles involved in the field.”49

This inquiry is somewhat more flexible than the Kelly factors applicable to Newtonian and medical science.50 “The general principles announced in Kelly (and Daubert) apply, but the specific factors outlined in those cases may or may not apply depending upon the context.”51 Un-der either Daubert/Kelly or Nenno, reliability should be evaluated by reference to the standards applicable to the particular professional field in question.52

Appellant does not quarrel with the first prong — the legitimacy of the field of forensic psychiatry, nor, apparently, with the second prong — Dr. Coons’s testimony is within the scope of forensic psychiatry, but he contends that Dr. Coons’s testimony did not properly rely upon the accepted principles of forensic psychiatry, at least as far as those principles apply to the prediction of long-term future dangerousness.

While the United States Supreme Court (as well as other American courts) has recognized the fallibility of psychiatric assessments of future dangerousness, it nevertheless acknowledged the necessary reliance on psychiatry to assist *275in judicial decisionmaking.53 We reaffirm that such expert testimony may, in a particular case, be admissible under Rule 702 and helpful to the jury in a capital murder trial.54 However, the burden is on the *276proponent of such psychiatric testimony to establish its admissibility in each individual case.55 Science is constantly evolving and, therefore, the Rule 702-703 “gatekeeping” standards of the trial court must keep up with the most current understanding of any scientific endeavor, including the field

of forensic psychiatry and its professional methodology of assessing long-term future dangerousness.56 The objective of the “ga-tekeeping” requirement is to make certain that an expert employs the same professional standards of intellectual rigor in the courtroom as is expected in the practice of the relevant field.57 The validity of the *277expert’s conclusions depends upon the soundness of the methodology.58

C. The Application of Daubert/Kelly and Nenno Principles in This Case.

As the Seventh Circuit observed in Rosen v. Ciba-Geigy Corp., 59 “under the regime of Daubert a district judge asked to admit scientific evidence must determine whether the evidence is genuinely scientific, as distinct from being unscientific speculation offered by a genuine scientist.”60 Here, there is no question that Dr. Coons is a genuine forensic psychiatrist with a lengthy medical career, but the issue under Rule 702 is whether his “future dangerousness” testimony is based upon the scientific principles of forensic psychiatry.

From this record, we cannot tell what principles of forensic psychiatry Dr. Coons might have relied upon because he cited no books, articles, journals, or even other forensic psychiatrists who practice in this area.61 There is no objective source material in this record to substantiate Dr. Coons’s methodology as one that is appropriate in the practice of forensic psychiatry. He asserted that his testimony properly relied upon and utilized the principles involved in the field of psychiatry, but this is simply the ipse dixit of the witness.62 Dr. Coons agreed that his methodology is idiosyncratic and one that he has developed and used on his own for the past twenty to thirty years. Although there is a significant body of literature concerning the empirical accuracy of clinical predictions versus actuarial and risk assessment *278predictions,63 Dr. Coons did not cite or rely upon any of these studies and was unfamiliar with the journal articles given to him by the prosecution.

Dr. Coons stated that he relies upon a specific set of factors: history of violence,64 attitude toward violence, the crime itself, personality and general behavior, conscience, and where the person will be (i.e., the free community, prison, or death row). These factors sound like common-sense ones that the jury would consider on its own,65 but are they ones that the forensic psychiatric community accepts as valid?66 *279Have these factors been empirically validated as appropriate ones by forensic psychiatrists? And have the predictions based upon those factors been verified as accurate over time?67 Some of Dr. Coons’s factors have great intuitive appeal to jurors and judges,68 but are they actually accurate predictors of future behavior? Dr. Coons forthrightly stated that “he does it his way” with his own methodology and has never gone back to see whether his prior predictions of future dangerousness have, in fact, been accurate. Although he had interviewed appellant before the first trial in 1990, Dr. Coons had lost his notes of that interview in a flood and apparently had no independent memory of that interview. He relied entirely upon the documentary materials given to him by the prosecution, including his 1989 report. Dr. Coons, therefore, did not perform any psychiatric assessment of appellant after his eighteen years of nonviolent behavior on death row, nor did he refer to any psychological testing that might have occurred in that time frame.

Based upon the specific problems and omissions cited above, we conclude that the prosecution did not satisfy its burden of showing the scientific reliability of Dr. Coons’s methodology for predicting future dangerousness by clear and convincing evidence during the Daubert/Kelly gatekeep-ing hearing in this particular case.69 We *280conclude that the trial judge therefore abused his discretion in admitting Dr. Coons’s testimony before the jury.70

D. Did Dr. Coons’s Inadmissible Expert Testimony Affect Appellant’s Substantial Rights to a Fair Sentencing Trial?

Having found error in the admission of Dr. Coons’s expert testimony, we must decide whether that error affected appellant’s substantial rights to a fair sentencing trial.71 A substantial right is affected when the error had a substantial and injurious effect or influence in determining the jury’s verdict.72 But if the improperly admitted evidence did not influence the jury or had but a slight effect upon its deliberations, such non-constitutional error is harmless.73 In making a harm analysis, we examine the entire trial record and calculate, as much as possible, the probable impact of the error upon the rest of the evidence74 We consider overwhelming evidence supporting the particular issue to which the erroneously admitted evidence was directed— here, the “future dangerousness” special issue — but that is only one factor in our harm analysis.75 It is the responsibility of the appellate court to assess harm after reviewing the record, and the burden to demonstrate whether the appellant was harmed by a trial court error does not rest on either the appellant or the State.76

*281In his Brief, appellant cites articles that note the high persuasive value of “scientific” expert testimony, especially clinical psychological testimony concerning future dangerousness.77 Indeed, some studies have shown that juror reliance on an expert’s credentials is directly proportional to the complexity of the information represented: the more complex the information, the more the jury looks to the background, experience, and status of the expert himself rather than to the content of his testimony.78 There is also some evidence that jurors value medical expertise higher than other scientific expertise; thus, even when the information is identical, jurors find evidence from a doctor more persuasive than the very same testimony from a psychologist.79 Furthermore, evidence that corresponds to firmly held beliefs may be particularly persuasive to jurors.80 Thus, an expert’s appeal to the juror’s own common sense may be considerably more persuasive than a counterintuitive and complex, but empirically verified, theory.

These studies and articles would support a determination that the erroneous admission of a psychiatrist’s unreliable testimony concerning the defendant’s future dangerousness affects a substantial right to a fair sentencing hearing under Tex.R.App. P. 44.2(b). However, each case must be examined on its own facts, taking into account the specific evidence and the probable impact of the erroneously admitted expert evidence upon the jury’s decision-making in the particular case.

In this case, there was ample evidence that there was a probability that appellant would commit future acts of violence quite apart from Dr. Coons’s testimony. And, as noted above, it was some of that independent evidence that the jury requested to see during its deliberations. First, the psychiatric interview and evaluation done by Dr. Hodges more than twenty years before the offense and forty years before the trial reached the same basic conclusion as Dr. Coons did concerning appellant’s character and his animosity toward women. Dr. Hodges’s 1964 interview and clinical evaluation was completed long before any possible motive to view the facts and events of appellant’s later life through any “future dangerousness” litigation prism had arisen. Expertise that is developed entirely independent of litigation by professionals acting in their normal field is more likely to be considered reliable than expertise developed especially for trials.81 The same is true with the *2821967 military medical report which noted appellant’s “lifelong maladjustment” and his jealous violent rage when he thought that his fiancée was having an affair with someone else. Significantly, the jury asked to see these two reports during its deliberations; it did not ask to see Dr. Coons’s 1989 report. We have often held that erroneously admitting evidence “will not result in reversal when other such evidence was received without objection, either before or after the complained-of ruling.”82 Although neither Dr. Hodges nor the military doctor specifically opined on whether there was a probability in 2008 that appellant would commit acts of future violence, their psychiatric and medical assessment of appellant’s character for violence is remarkably similar to that of Dr. Coons.

Furthermore, Dr. Coons’s testimony was rebutted and refuted by appellant’s expert, Dr. Mark Cunningham, a forensic psychologist. Although Dr. Cunningham is not a medical doctor, he did win the 2005 Texas Psychology Association award for his outstanding contribution to science and, in 2006, he was awarded the American Psychological Association (APA) award for distinguished contributions to research in public policy. Both awards were for his research concerning factors that predict violence in prison and his research in capital sentencing. He is also among the 2,000-3,000 psychologists elected as a Fellow of the APA out of the 155,000 members. He has published a significant number of peer-reviewed studies and articles. He testified, with a PowerPoint slide presentation to illustrate,83 about the violence risk assessment factors that he uses to assess the probability of future dangerousness in prison. His factors are based on research data from prisons, as well as other research and scholarly writings. He explained how his research is “scientific,” replicable, and less subjective: “It’s not based on my gut feeling about something. It’s based on what the data tells me. And so, it’s accurate. It’s reliable.”

After explaining the various studies, data, and statistical analysis, Dr. Cunningham concluded that appellant fell within the lowest risk-of-violence category.84 He *283criticized “the hypothetical inference” mode of predicting future dangerousness as

entirely speculative.... That’s just blind guessing unless those factors have been demonstrated to be predictive of violence in prison. Critically important. ... That’s the problem with not knowing the literature, without knowing anything about the scientific studies that have been done in this area is then you have no idea whether the factors that you’re looking at are predictive of anything or not.

According to Dr. Cunningham, if “what you’re doing is basing it on your own gut and you haven’t done anything to check whether your gut reaction is correct or not, then your accuracy level never improves.”

He pointed to appellant’s first trial as an example of the “tea-leaf-reader” school of subjective clinical assessments. In that trial, Dr. James Grigson,85 who used the same subjective methodology as Dr. Coons, testified that, in his opinion, appellant posed no risk of future violence: “[H]e said, the ladies and gentlemen of the jury are more likely to kill somebody in the future” than appellant. Dr. Coons, using that very same methodology and facts concerning appellant, came to exactly the opposite conclusion.86 Dr. Cunningham also told the jury that the major psychological associations had criticized Dr. Coons and his methodology as “unreliable and inconsistent with the standard of practice.” In sum, Dr. Cunningham refuted Dr. Coon’s expertise and the whole “tea-leaf-reader” notion of clinical psychiatric predictions of future dangerousness.

Furthermore, the prosecution did not rely heavily upon Dr. Coons’s testimony during its closing arguments. Instead, the prosecutor emphasized his position that appellant was exactly the same person that he was when he killed Karen’s parents and her brother back in 1989. He had not changed a bit.87 The prosecutor then went *284on to recount evidence from the murders themselves and appellant’s bragging to Karen afterwards. The prosecutor then turned to the topic of predicting future dangerousness:

Can we predict a person’s future? Well, we absolutely can. You heard what Dr. Hodges said. He made an analysis of it. He talked about how he had a dislike of women, how he had a low opinion of them. Did he? His conduct was absolutely borne out. And Dr. Hodges said the prognosis is poor, and it was, because this person ultimately cares only about himself.

He then recounted how Bobby’s fellow officer had predicted that appellant would commit some violent act after he had been arrested for kidnapping Karen before the murders. He then turned briefly to Dr. Coons:

Dr. Coons examined — first he talked to [appellant] personally before the first trial in 1990. He interviewed him, then he gave his assessment of him. And the assessment is — sure, you deal with medical predictions and the training of psychiatrists — but it’s just common sense. If you don’t have a conscience and you’ve committed dangerous violent acts and you’ve shown that you have no regard for human beings in any form unless it’s something that serves you, of course, there’s a probability that you will commit criminal acts of violence.

The prosecutor then referred to appellant’s expert psychologist, Dr. Cunningham, and how he had called Karen biased for saying that appellant twice gave her an evil grin in two different court appearances. The prosecutor then returned to his theme of appellant’s lack of conscience and how he had simply been restrained, not changed, in prison.

The defense, in its closing argument, quickly focused on the future dangerousness issue as well. Counsel argued that the statistical evidence that Dr. Cunningham had presented made it very difficult for the prosecution to prove that appellant would commit future acts of violence. He compared the two experts:

I want to talk about Dr. Coons versus Dr. Cunningham, because it really does sort of come down to Dr. Coons versus Dr. Cunningham. Dr. Coons is a likable guy. Dr. Coons does an excellent job of testifying. He seems to have a lot of *285horse sense. Okay. He seems to have a lot of common sense. That’s totally true. Dr. Cunningham is extremely long-winded. Okay. He has a hard time sort of answering a question directly. I recognize those facts. But that’s because he is a scientist.88 All right. And Dr. Cunningham talked about being a scientist and what that means. What that means is, I don’t just look at the evidence and make a wild guess. Okay. I’m not a tea-leaf reader. I’m not a guy who says, well, I’m just going to depend on my — my experience and say this person is a future danger — okay—without going back and checking my work, without quantifying things, without being able to say, you know, I’m correct to this certain quantum of correctness.... So he’s a scientist. A scientist comes up with an idea, a theory. Okay. He tests that theory. He doesn’t just test the theory, but he also gives his data to other scientists to look at, so they can test his theory. Then he goes back and double-checks his work. Then he thinks, now, maybe there’s a weakness in my own argument that I’ve already made. Let’s go back and double-check that weakness and see it that changes our numbers or does that reinforce our numbers. All right. So that’s what a scientist is supposed to do.

Do you remember Dr. Coons’s testimony? Dr. Coons, do you check your work? Not really. Dr. Coons, do you remember going back and looking at the records of people that you have predicted are going to be a future danger to see if they really were? Well, I’m sure I’ve done it, but I can’t tell you who I’ve done it with. In other words, he’s a guy who is completely uninterested in whether he’s correct or not....

... How can he ever get better? How can he establish for the jury that his opinion is reliable? He can’t because he’s not a scientist. He’s a tea-leaf reader.

The defense then recapped Dr. Cunningham’s testimony which had been that appellant posed an extremely low risk of committing future acts of violence because (1) he is well-adjusted to institutional life; (2) he is sixty years old and thus has “aged out” of his violent years; (3) he has performed many positive acts and developed a positive attitude toward fellow inmates; (4) he is serving a very long sentence and “40 years of tests” show that long-term inmates are statistically less likely to commit acts of aggression than are “short-term-ers;” (5) he has a GED and additional work certificates; and (6) he has continuing family ties to the community. All of these factors are supported by “the numbers that exist in reality. These are the official numbers. So he’s not making up the numbers. He’s a scientist. He’s just reporting what the data is.” The defense concluded its discussion of “future dangerousness,” with the statement that “Dr. Cunningham’s conclusions are very appropriate and very reasonable and scientific and provable as opposed to Dr. Coons’s conclusions, which are nonscientific and not provable. Okay. And even if they were provable, he hasn’t bothered to go out and try to prove them.” Counsel then moved on to the mitigation issue and appellant’s miserable childhood and youth.

During his final argument, the prosecutor mentioned Dr. Coons very briefly by reminding the jury that another psychia*286trist, Dr. Hodges, had talked to appellant back in 1964 and “he looked at him and listened to his answers” and reached the conclusion that appellant was “extremely hostile to women, very low opinion of women, has poor control, very low self-esteem. Projects a great deal of responsibility for his own actions on other people. It was Karen’s fault that she got kidnapped. It was Karen’s fault because she stood up to him. And it ruined his life. So it was her fault. And he had to extract revenge on her and he did it in the most brutal, the most selfish way he possibly could.” The prosecutor then referred to the military doctor’s assessment from 1967, with both doctors reaching the “same common sense assessment” of appellant.

Based upon the complete record of this ease, we find that the error in admitting Dr. Coons’s testimony did not affect appellant’s substantial right to a fair sentencing hearing because

(1) There was ample other evidence supporting a finding that there was a probability that appellant would commit future acts of violence;89

(2) The same basic psychiatric evidence of appellant’s character for violence was admissible and admitted, without objection, through other, entirely objective, independent medical sources — the reports by Dr. Hodges and the military doctor years before appellant committed these murders; 90

(3) Dr. Coons’s opinion was not particularly powerful, certain, or strong;91 his opinion, coming after an extremely long and convoluted hypothetical was simply that “there is a probability that” appellant would be a continuing threat to society by committing criminal acts of violence;

(4) Dr. Coons’s testimony was effectively rebutted and refuted by Dr. Cunningham, who not only relied upon *287specifically listed scientific materials and data during his testimony, but who also noted that Dr. Coons and his methodology had been criticized by both the American and Texas Psychological Associations; and

(5) The State barely mentioned Dr. Coons during closing argument and did not emphasize him or his opinions.

Given these particular circumstances, we conclude that the error in admitting Dr. Coons’s testimony did not have a “substantial and injurious” effect upon the jury’s deliberations concerning the future dangerousness special issue.92 We therefore overrule points of error three, four, and five.

The Admissibility of A.P. Merillat’s Testimony

In his sixth point of error, appellant claims that the trial court erred in admitting the testimony of A.P. Merillat, an investigator for the Special Prosecution Unit, about the Texas prison classification system and violence in prison. Appellant argues that: (1) Mr. Merillat’s testimony was irrelevant as it did not relate to appellant personally, and (2) this witness testified to information that was already common knowledge among jurors. The State argues that Mr. Merillat’s rebuttal testimony was relevant to refute Dr. Cunningham’s statistical data and to impeach the accuracy of his “low risk” future dangerousness prediction.93 We agree that Mr. Merillat’s testimony was admissible as rebuttal “educator-expert” evidence.

On voir dire, Mr. Merillat stated that his testimony is based on his specialized knowledge of Texas prisons and prison violence during his nineteen years as a criminal investigator with the Special Prosecution Unit. He proposed to testify concerning the under-reporting of prison violence in official data compilations, the prison classification system, and the opportunities for violence inside prison.

The trial judge allowed Mr. Merillat’s testimony, although he granted appellant’s motion in limine to avoid mention of any specific instances of misconduct by other inmates except for one anecdote concerning an inmate’s forced starvation death which served as “a great example for un-derreporting of violence.”

Mr. Merillat then testified before the jury about the inmate classification system and the under-reporting of violence in prison. He also described administrative segregation and how it is used as “punitive housing” for recalcitrant inmates. Mr. Merillat explained why the official prison statistics used by Dr. Cunningham are not completely reliable: (1) the prison reporting system does not match the penal code definitions of “violent” behavior;94 and (2) *288not all incidents of inmate-on-inmate incidents of violence are reported. Finally, he told the jury that, in the last few years, his unit had prosecuted 94 inmates who were serving life sentences for capital murder for both assaultive and non-assaultive felonies.

On cross-examination, Mr. Merillat agreed that he knew nothing about appellant except that his office had never prosecuted him. He agreed that he was not qualified to express any opinion regarding appellant’s “future dangerousness.” He also explained how death row inmates “had the run of the row” and could work in the garment factory when death row was in the Ellis Unit. Mr. Merillat agreed that the point of his testimony was that there are abundant opportunities for inmates to be either violent or good, depending upon their own decisions.

Appellant asserts that the primary subject of Mr. Merillat’s testimony— opportunities for violence in prison — is within the common knowledge of the jurors. Indeed, most jurors probably have some understanding that violence can and does occur in prison, but a trial court need not exclude expert testimony when the general subject matter is within the comprehension of the average juror, as long as the witness has some specialized knowledge on the topic that will “assist” the jury.95 It is only when the expert offers no appreciable aid that his testimony fails to meet the Rule 702 standard.96 The question under Rule 702 is not whether the jurors know something about this subject, but whether the expert can expand their understanding in a relevant way.

In this case, Mr. Merillat confined his testimony to specific information about the operations of the Texas prison system and the opportunities for violence or productive behavior. His expert testimony was intended to (1) educate the jury about an area in which it lacked a thorough understanding; 97 and (2) cast doubt upon the official prison data that Dr. Cunningham relied upon. Mr. Merillat acted “as an advisor to the jury, much like a consultant might advise a business[.]”98 Because Mr. Merillat’s testimony was edueator-exper-*289tise information designed to “assist” the jury under Rule 702, the trial judge did not abuse his discretion in admitting it. Point of error six is overruled.

In point of error seven, appellant contends that the trial court erred by allowing Mr. Merillat to testify to hearsay information in violation of the Confrontation Clause99 and of the Texas Rules of Evidence. Out of six instances in which appellant claims that Mr. Merillat testified to hearsay information, we have found only three trial objections based on hearsay or the Confrontation Clause. We will address only those three instances:

(1) Appellant objected on the basis of hearsay to Mr. Merillat’s statement that 78 serious staff assaults were documented in the official prison report that Dr. Cunningham had used as the basis for his statistical analysis;

(2) Appellant objected on the basis of hearsay and the Confrontation Clause to Mr. Merillat’s explanation of why inmate-on-inmate violence is under-reported — nobody wants to be a “snitch” which is the “very lowest form of life in the penitentiary”; and

(3) Appellant objected on the basis of hearsay and an inability to confront and cross-examine when Mr. Meril-lat cited the story of an inmate who had been beaten and starved to death by his stronger, gang-member cellmate, as an example of why and when fellow inmates fail to report acts of violence.

The trial judge properly overruled these three hearsay and confrontation objections.

Hearsay is an out-of-court statement by a person offered for the truth of the matter asserted.100 None of these three pieces of testimony fits that definition. In the first, Mr. Merillat was not offering his statement of the official prison data compilation of “78 serious staff assaults” for the truth of the matter asserted — that there were 78 serious staff assaults in the previous year. Quite the reverse. Mr. Meril-lat’s point was that the official number of 78 was significantly lower than the actual number of serious assaults and thus the official prison statistics that Dr. Cunningham used as the basis for his expert opinion were inaccurate.101 In the second, the testimony concerning why assaults upon inmates aren’t reported “because by telling on the person who did it, they are going to be much worse off[,]” Mr. Merillat did not disclose any out-of-court statement.102 He was simply explaining, as a general proposition, why inmates do not “snitch” on each other. In the third, the inmate who was beaten and starved to death, appellant does not point to any out-of-court statement. There is none. Mr. Merillat was recounting an event, not a verbal or writ*290ten statement. He may have first heard of the event by someone telling him of it,103 but he did not recite or imply any out-of-court statements.104 Because the trial judge did not abuse his discretion in overruling appellant’s hearsay and confrontation objections, we overrule point of error seven.

In his eighth point of error, appellant asserts that Mr. Merillat’s testimony was inadmissible because of the Eighth Amendment’s “heightened reliability” requirement in capital murder prosecutions. Appellant fails to cite any authority for increasing the admissibility requirements for evidence in a capital murder sentencing trial. Indeed, some state and federal courts have suggested that the Confrontation Clause, the Rules of Evidence, and the rule against hearsay do not apply with full force in capital murder sentencing trials.105 We express no opinion on that matter, but we reject appellant’s Eighth Amendment claim and therefore overrule point of error eight.

Emotional Outbursts by Two Witnesses

In points of error nine and ten, appellant claims that the trial court erred in denying his motion for a mistrial when Karen Vicha and Lorna Sawyer made separate emotional outbursts during the punishment trial. In each case, the trial judge sustained appellant’s objection to the outburst and instructed the jury to disregard the remarks. We conclude that the trial court did not abuse his discretion in these rulings.

During Karen Vicha’s testimony describing what appellant told her about how he had chased and shot her brother, she explained that

[Appellant] started talking about — he told me, you’re pretty tough, you put up a good fight with that gun. And he said, *291your brother thought — he said, your brother thought he was tough too. He said, all cops think they’re tough, but he thought he was really tough. He said— he said — he told me he said, all I was trying to do was keep you away from my sister. And he said, I finally had to shut him up and blow a hole that big in his neck.

At that point, Karen broke down crying and said, “And I hate you for making me go through this again and my kids. You’re mean.” The trial judge immediately called a recess.106 When the jury returned, the trial judge instructed them: “Ladies and gentlemen of the jury, at this time I am going to give you an instruction to disregard the last comment of the witness and not consider it for any purpose whatsoever.” He denied appellant’s motion for mistrial, and the prosecutor continued with his questions.

After six more witnesses had testified, the State called Lorna Sawyer, appellant’s cousin. As soon as she had been sworn in, but before any questioning, she burst out, “Evil piece of shit.” The defense immediately responded: “Judge we object. Call for a mistrial. Request an instruction to disregard. Call for a mistrial.” The Judge said, “I’ll instruct the jury to disregard the last comment of the witness,” and Ms. Sawyer said, “Sorry.” When appellant then requested that she be excluded as a witness, the trial judge took a recess.107

"When the jury returned, Ms. Sawyer testified that appellant offered her a job at a drive-in theater when she was 16. She had worked there for about two and a half weeks when appellant picked her up for work, but he took her to his house and raped her instead. She was so scared that she had never told anyone, except her sister, about this experience. When the prosecutor asked Ms. Sawyer if she was still afraid of appellant, the following occurred:

Witness: Actually, uh, without being ugly, I’d like to go there and just knock the shit out of him.

Defense: Judge, I’m, going to have to object, Your Honor. I think that was an inappropriate comment.

Witness: It is not inappropriate.

Defense: I’d object to the sidebar from the witness. Judge. I’d ask that— the jury to disregard.

*292Court: The jury is instructed to disregard the last comment of the witness and not consider it for any purpose.

Defense: I’d ask for a mistrial, You Honor.

Court: That’s denied.

State: Lorna—

Witness: I’m sorry, I’m sorry.

And the testimony then continued.

Appellant argues that these outbursts, individually or collectively, unfairly influenced the jury and that influence could not be limited by an instruction to disregard.

A trial judge’s denial of a motion for mistrial is reviewed under an abuse of discretion standard,108 and his ruling must be upheld if it was within the zone of reasonable disagreement.109 We have held that an outburst from a bystander or witness “which interferes with the normal proceedings of a trial will not result in reversible error unless the defendant shows that a reasonable probability [exists] that the conduct interfered with the jury’s verdict.”110 In the context of such outbursts, the trial judge’s instructions to disregard are generally considered sufficient to cure the impropriety because it is presumed that the jury will follow those instructions.111

Appellant relies upon Stahl v. State112 for his claim that the judge’s instruction to disregard the spontaneous outbursts could not have cured their prejudicial effect and those outbursts must have interfered with the jury’s verdict. But Stahl was decided upon the basis of prosecutorial misconduct, not merely the witness’s emotional outburst. In Stahl, the prosecutor called the victim’s mother to the stand, knowing that she was prone to emotional outbursts, and asked her to identify a photograph of her dead son.113 She burst into tears and yelled, “Oh, my god. My baby. My God.... May he rest in hell. May he burn in hell. Oh, my baby.”114 The judge instructed the jury to disregard, but the prosecutor “exacerbated” the impact by repeatedly referring to the incident in closing argument.115 The prosecutor’s “deliberate” and “persistent” conduct, “in direct contravention of prior rulings by the judge” indicated “a desire to impermissibly sway the jury.”116 Indeed, the court of appeals had suggested that the Stahl prosecutor “actually orchestrated the original *293outburst.”117

In this case, however, there is no suggestion that the prosecutor anticipated the short emotional outburst by Ms. Vicha in the middle of her lengthy testimony or the entirely inappropriate start of Ms. Sawyer’s testimony. In the first instance, the prosecutor agreed with the correctness of an instruction to disregard and, in the second, he did not attempt to justify Ms. Sawyer’s outburst.118 The trial judge immediately instructed the jury to disregard those outbursts, and we must presume that the jurors followed these instructions.119 The prosecution did not refer to, or attempt to capitalize upon, the outbursts during closing arguments. Furthermore, they occurred during the sentencing stage of a capital murder trial, not the guilt stage as in Stahl. At the punishment hearing, evidence of the defendant’s character is both relevant and admissible as is the opinion testimony concerning good or bad character traits by those who know him.120 Obviously, character evidence must be offered in a proper form and be responsive to specific questions, so these outbursts were not proper, but their potential for prejudice was less than had they occurred during the guilt phase of a trial.

Because we conclude that nothing in the record suggests that the outbursts were of such a nature that the jury could not follow the trial judge’s instructions to disregard them,121 we overrule appellant’s points of error nine and ten.

The Admission of the Hearsay Statement by a Witness’s Sister

In his eleventh point of error, appellant claims that the trial judge erred in admitting Amy Zuniga’s testimony that her sister, Karen, told her that appellant was looking in her bedroom window as she was dressing. Appellant objected to hearsay, but the trial judge admitted Amy’s testimony as both an excited utterance and a present sense impression. We conclude that the trial judge did not abuse his discretion in finding that Karen’s out-of-court statement was admissible as an excited utterance exception to the hearsay rule.122

Amy Zuniga testified that appellant was her uncle and, when she was young, she thought he was a model of how a parent should be because he was so nice to his own son. However, Amy changed her mind about appellant when she was fifteen. She explained that one day she was sitting in a rocking chair in her nightgown, when appellant came in and pulled her legs apart; then he made “a vulgar display like he was licking me” between her legs. After that, she avoided him. But right before appellant moved into Amy’s mother’s home shortly before the murders, Amy came out of the shower and was changing her clothes in her bedroom when she heard a “commotion from the kitchen, a beating on the window.” Then Karen ran through Amy’s bedroom door from the kitchen, went outside through her back bedroom door, and started yelling. Amy *294peeked out through the curtains and saw appellant driving off in his truck. Then Karen came back inside, “very mad and frustrated. She was red, angry.” Karen told Amy that she had seen appellant outside looking through the curtains as Amy was dressing.

The trial judge admitted Karen’s out-of-court statement to Amy based on it being both an excited utterance and a present sense impression. We need examine its admissibility only under the excited utterance exception. An excited utterance is a statement that relates to a startling event or condition, and it is made when the declarant is still under the stress of excitement caused by the event or condition.123

Appellant contends that Karen’s statement was not admissible as an excited utterance because there was no showing that she was in the “grip of violent emotion, excitement or pain.”124 She was angry, not excited. The critical question, however, is not the specific type of emotion that the declarant is dominated by — anger, fear, happiness — but whether the declarant was still dominated by the emotion caused by the startling event when she spoke.125 Appellant also argues that Karen’s statement was not admissible because there was no independent evidence of the startling event — appellant’s “Peeping Tom” conduct. Appellant cites to a Texas Supreme Court case, Richardson v. Green,126 which applied the common-law “res gestae” rule. But Rule 803(2) changed the common law; the current rule does not require independent evidence of the exciting event before the trial judge may admit the declarant’s statements relating to that event.127 The trial judge decides, under Rule 104(a), whether there .is sufficient evidence to prove an exciting event, and he may consider the statement itself in making that decision.128 Here, for example, the trial judge could consider the *295evidence that Amy said that she (1) heard her sister banging on the kitchen window, (2) saw Karen run through her bedroom and out the door, and (3) saw appellant driving off just before Karen returned to tell her that appellant was peeping in her bedroom window. That evidence, when combined with Karen’s statement, would support a finding of the startling event— appellant’s “Peeping Tom” conduct.129

Because we conclude that the trial court did not abuse his discretion in admitting Karen’s excited utterance, we overrule appellant’s eleventh point of error.

Miscellaneous Claims

A. Limitation of Voir Dire Questions

In his twelfth point of error, appellant claims that the trial court erred in limiting his voir dire by refusing to allow him to question the jurors about the mitigation value of specific facts, including evidence of a troubled childhood, mental illness or extreme emotional distress, community service, age, kindness to others, work ethic, or military service. The State objected, citing Standefer v. State, 130 Sells v. State, 131 and Wingo v. State, 132 and stated that these were commitment questions. The trial judge sustained the State’s objections, but allowed more general mitigation questions about whether there was anything that the jurors “could consider under the circumstances of having found [appellant] a future danger to society which might merit a life penalty.”

In Raby v. State, we rejected appellant’s claim that he is entitled to ask potential jurors in a death penalty case about what specific evidence that juror could or would consider as mitigating.133 We stated that “[a] trial court does not abuse its discretion by refusing to allow a defendant to ask venire members questions based on facts peculiar to the ease on trial (e.g. questions about particular mitigating evidence).” 134 Appellant does not persuade us that Raby was wrongly decided. We therefore overrule appellant’s twelfth point of error.

B. The Mitigation Instruction

In his thirteenth point of error, appellant claims that the trial court erred by refusing to instruct the jurors that they need not unanimously agree on what particular evidence supports an affirmative finding on the mitigation issue. Appellant invokes Mills v. Maryland135 in support of *296his argument. We addressed and rejected this same argument in Segundo v. State, 136 and appellant has not persuaded us that Segundo was wrongly decided. We over-rale his thirteenth point of error.

C. The Definition of Mitigating Evidence

In his fourteenth and fifteenth points of error, appellant argues that the trial court should not have given the jury the statutory definition of mitigating evidence “as evidence that a juror might regard as reducing the defendant’s moral blameworthiness.”137 This same claim was rejected in Roberts v. State, 138 and appellant’s arguments do not persuade us to overrule that case. He also contends that the trial judge should have instructed the jury that there need be no nexus between the mitigating evidence and the capital murder because the mandatory statutory definition, he argues, implies that there must be a connection between the reduced moral blameworthiness and the capital offense itself. We do not see any “nexus” requirement in the statutory definition. Appellant relies upon Tennard v. Dretke,139 but the Supreme Court, in that case, simply chastised the Fifth Circuit for requiring a nexus between the crime and the mitigating evidence.140 It never suggested that a jury can, should, or must be instructed not to consider any nexus between the crime and the mitigating evidence. Such an instruction would be necessary only if the jury would be reasonably likely to infer a nexus requirement from the statutory words.141 That is not the case. We overrule appellant’s fourteenth and fifteenth points of error.

D. The Mitigation Issue

In his sixteenth point of error, appellant relies on Apprendi142 and Ring143 to argue that Article 37.0711 is unconstitutional because it fails to require the State to prove beyond a reasonable doubt that there are no mitigating circumstances that warrant a life sentence. He fails to mention that this Court has rejected that claim in numerous cases,144 and- he fails to persuade us that our prior decisions were mistaken.

In his eighteenth point of error, appellant claims that the Texas death-penalty scheme is unconstitutional under Penny II,145 because the mitigation issue sends *297“mixed signals” to the jury, thus rendering any finding reached on that special issue unreliable. Penry II is distinguishable because, in that case, the jury was given a judicially crafted nullification instruction.146 Here, the jury was given the statutorily mandated mitigation question, which does not contain a nullification instruction. No error exists, and we have repeatedly rejected this claim.147 We overrule appellant’s eighteenth point of error

E. Constitutional Challenges to Art. 37.0711

In his seventeenth point of error, appellant contends that the Texas death-penalty statute gives the jury too much discretion and therefore permits arbitrary and inconsistent application of the ultimate penalty. We have repeatedly rejected this claim and appellant does not persuade us to overrule these prior eases.148 In fact, he fails to mention them.

In his nineteenth and twentieth point of error, appellant argues that the jurors should have been instructed on the consequences of a hung jury so that they would immediately stop deliberating if a single juror voted in appellant’s favor on an issue that required unanimity. He also argues that the jurors should not have been instructed on the “10-12” Rule. Although appellant fails to mention controlling precedent from this Court, we have repeatedly rejected these claims.149 We do so again.

In his twenty-first through twenty-third points of error, appellant argues that the statutory “future dangerousness” special issue is unconstitutional because the terms “probability,” “criminal acts of violence,” and “society” are not defined. We have repeatedly rejected these claims,150 and, although counsel suggests that we should revisit this precedent, we decline to do so.

In his twenty-fourth point of error, appellant contends that the statutory “future dangerousness” special issue violates the Eighth Amendment because no one can reliably predict whether another person will commit acts of violence in the future and therefore this is an arbitrary factor. The “future dangerousness” aggravating factor has been recognized by the Supreme Court as properly narrowing the jury’s consideration to ensure individualized sentencing as recently as two years ago in Kennedy v. Louisiana. 151 Although *298appellant asserts that only one other state, Oregon, requires a finding of future dangerousness in his effort to prove that a “national consensus” has developed against imposing the death penalty based on that factor, he fails to note that twenty-one other states include a defendant’s possible future dangerousness among the aggravating circumstances to be considered at the sentencing stage of a capital case.152 Furthermore, we have previously rejected this claim,153 and we are not persuaded by appellant’s arguments that our precedent should be overruled.

In his final point of error, appellant claims that the “future dangerousness” statutory scheme violates the Texas constitutional ban on cruel or unusual punishment. As appellant acknowledges, we have already rejected this argument.154 Appellant asserts that we now have before us his “evidence” that the “future dangerousness inquiry results in inaccurate, unreliable, arbitrary and disproportionate determinations.” His evidence is the citation to an article written by the Texas Defender Service,155 an advocacy group that represents inmates on death row. This is not the type of “evidence” upon which we can base a finding that the “future dangerousness” special issue is necessarily an unreliable factor to use in determining whether a life or death sentence is appropriate. Evidence proves historical facts; the “future dangerousness” special issue is a normative assessment mandated by the legislature and determined by the jury. Questions about its “appropriateness” as a factor in determining a life or death sentence should be addressed to the legislature. Furthermore, the article speaks of psychiatric predictions, not of the unreliability of jury verdicts. We overrule appellant’s twenty-fifth point of error.

Having found no reversible error, we affirm the trial court’s judgment and sentence.

MEYERS, J., joined except for points of error 3 and 4.

KELLER, P.J., filed a concurring opinion in which MEYERS and KEASLER, JJ., joined.

HERVEY, J., concurred.

KELLER, P.J.,

filed a concurring opinion in which MEYERS, and KEASLER, JJ., joined.

Rule 702 is not just about scientific evidence:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qual*299ified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.1

We recognized in Nenno that expert testimony can be of the “nonscientific” variety, but that, in any event, it might not be fruitful to draw “a rigid distinction between ‘hard’ science, ‘soft’ sciences, or nonscientific testimony” because the “distinction between various types of testimony may often be blurred.”2 In Griffith, we explained that future dangerousness testimony can be provided by a mental health expert based upon the expert’s “specialized education and experience.”3

Rule 702 was meant to “relax the traditional barriers to opinion testimony.”4 The rule steered courts away from Frye’s5 “general acceptance” standard6 toward determining whether the expert’s testimony would be helpful to the trier of fact.7 For evidence to be helpful to the trier of fact, it must be reliable, but reliability need not always be measured with the rigor that is applied to the hard sciences.8 The reliability inquiry is “a flexible one.”9 And even if “the subject matter is within the comprehension of the average jury,” “[i]f the witness has some special knowledge or additional insight into the field that would be helpful, then the expert can assist the trier of fact to understand the evidence or to determine a fact in issue.”10 Expert testimony that encompasses a field outside of the hard sciences is admissible if: (1) the field of expertise is a legitimate one, (2) the subject matter of the expert’s testimony is within the scope of the field, and (3) the expert’s testimony properly relies upon and/or utilizes the principles involved in the field.11

As the Court has observed, Dr. Coons is a psychiatrist who has been practicing forensic psychiatry for thirty-one years. He has evaluated the competency or sanity of between 8,000 and 10,000 people, he has performed approximately 150 evaluations of future dangerousness, and he has testified in approximately fifty cases. As the Court acknowledges, the record further shows that psychiatric principles are commonly used in the civil commitment context to determine whether a person poses a danger to himself or others. I would add that the record also shows the following: First, while clinical practice is a relatively small part of Dr. Coons’s work, he has treated over 3,000 patients. Second, Dr. Coons subscribes to two journals in forensic psychiatry, goes to annual meetings, and has lectured on forensic psychiatry at the University of Texas Law School, at various attorney associations, and at continuing legal education seminars.

With respect to assessing future dangerousness, Dr. Coons’s educational baek-*300ground and his prior experience place him in a better position than the average juror. As Dr. Coons explained at trial:

I don’t know that there’s any specific rule or external measure, um, other than to say that, you know experience is — is important in these matters. It’s just like you go to the jail and you talk to a corrections officer and they say, So and so is dangerous. Why? I just know they are, or some things that they’ve said, or whatever. Uh, and they’ve had experience with that. Forensic psychiatrists have had experience with however many people they’ve seen or cases they’ve dealt with. And they develop an experiential body of knowledge and information and approach that helps them make their decisions.

In making his assessment, Dr. Coons relied upon information from a variety of sources: an interview with Lorna Sue Sawyer; a vital statistics death certificate regarding Arthur Coble; a note from a senior criminal investigator with the prosecutor’s office; a narrative summary from the Naval Hospital at San Diego regarding appellant; a report from Clay Griffith, M.D.; a timeline prepared by the prosecutor’s office; appellant’s military personnel records; testimony from appellant’s prior trial from Dr. Grigson, Mary Ivey, and Dr. Mark; appellant’s writings from the Po-lunsky Unit; the grand jury testimony of appellant’s mother and sister; incoming and outgoing mail from the county jail; and a report from Dr. Ralph Hodges.12 Dr. Coons explained that he always uses the same factors in evaluating dangerousness and has done so for at least twenty years.

The evidence at trial — Dr. Coons testimony — shows that forensic psychiatry is a legitimate field, that predicting future dangerousness is within the scope of that field, and that using education and experience to assess future dangerousness is a proper application of the principles involved in the field. Notably, appellant has presented no evidence to the contrary. The Court faults Dr. Coons for failing to cite “books, articles, journals, or even other forensic psychiatrists who practice in this area” to substantiate his methodology, while acknowledging that Dr. Coons is “a genuine forensic psychiatrist with a lengthy medical career.”13 But appellant did not introduce any “books, articles, journals, or even other forensic psychiatrists” to testify that, contrary to Dr. Coons’s testimony, Dr. Coons’s experience-based method of evaluating future dangerousness is inappropriate.14

*301I would hold that the trial court did not err in admitting Dr. Coons’s testimony. I therefore concur in the Court’s judgment.

OPINION

Opinion by

Justice CARTER.

Darnell Hartsfield was convicted of aggravated perjury and, after pleading true to six felony enhancement allegations, the trial court sentenced him to life imprisonment. We affirm the judgment of the trial court.

Background Facts

On September 23,1983, five people were abducted from a Kentucky Fried Chicken (KFC) restaurant in Kilgore, Texas.1 Hours later, their bodies were found on an oil lease in Rusk County. On learning of the abduction, police officers, including Elliott and Captain Marvin Avance, went to KFC and found the restaurant in disarray, with blood spattered in various places. While the officers were investigating, the bodies of the individuals were found. Most of the officers went to the other crime scene, leaving Captain Avance in charge at the KFC until Tyler police officers arrived hours later to process the scene. Unfortunately, these investigative measures did not solve the case.

About twenty years later, in June 2001, DNA testing was done on a blood sample taken from a box from KFC. The sample was statistically matched to Hartsfield who, as an inmate in the Texas Department of Criminal Justice,2 had a DNA sample in the Texas CODIS.3 On September 22, 2003, Hartsfield appeared as a subpoenaed witness before a grand jury in Rusk County and repeatedly denied that he had been present in KFC September 23, 1983. On November 9, 2004, a grand *816jury indicted Hartsfield for aggravated perjury.

On the same day as the indictment, Kyle Freeman, the elected County Attorney at that time, signed and filed a deputation, conferring his duties with regard to Harts-field’s case to Lisa Tanner, an Assistant Attorney General. Tanner executed and filed the proper oath of office. On January 1, 2005, in the interim between the indictment and the trial, Michael Jimerson succeeded Freeman as County Attorney. Jimerson told Tanner to keep doing what she was doing in regard to the Hartsfield case. Even though Jimerson was present during the Hartsfield trial, Tanner presented the State’s case to the jury and the trial court.

Issues Presented

1. Was Tanner properly authorized by the duly elected County Attorney to prosecute this case?

2. Did the trial court err in admitting State’s Exhibits 29-34 (the cardboard box spattered with Hartsfield’s DNA and pictures of that box) into evidence over a timely and specific objection that the State could not prove a proper chain of custody of the exhibits?

1. Tanner’s Prosecutorial Authority

The first issue before this Court is whether the election of a different County Attorney invalidated Tanner’s authority to prosecute this matter. Hartsfield never complained about Tanner’s authority until such a complaint was made in the appellant’s brief before this Court. In order to preserve error, an objection should be made as soon as the grounds for the objection become apparent. Angelo v. State, 977 S.W.2d 169, 177 (Tex.App.-Austin 1998, pet. ref'd) (citing Dinkins v. State, 894 S.W.2d 330, 355 (Tex.Crim.App.1995)); see also Tex.R.App. P. 33.1. The issue of Tanner’s involvement should have become apparent soon after the induction of Jimer-son, or at least on the first day of trial when Tanner delivered her opening statements. Since there was no objection to Tanner’s authority before this appeal, Hartsfield forfeited any claim of error. See Stephens v. State, 978 S.W.2d 728, 730 (Tex.App.-Austin 1998, pet. ref'd) (error was waived because, at no time during trial, did appellant object to authority of attorney pro tem).

Even if the issue was preserved, we do not believe error is present. There is no question that Freeman deputized Tanner to prosecute this case. Freeman’s deputation authorized Tanner “to do and perform any and all acts and things pertaining to the office of said County Attorney” in regard to the Hartsfield case. When Freeman left office, Tanner began serving at the will and pleasure of Jimerson. Jim-erson could have dismissed her at any point, but instead told her to keep doing what she was doing.

Instead of being a deputy, as in the Freeman tenure, Tanner could have remained on the case under Jimerson’s direction in the capacity of a special prosecutor. See generally Tex.Code Crim. Proo. Ann. art. 2.01 (Vernon 2005). On request, a special prosecutor assists a county attorney in the investigation and prosecution of a particular case. Stephens, 978 S.W.2d at 731; Rogers v. State, 956 S.W.2d 624, 625 n. 1 (Tex.App.-Texarkana 1997, pet. ref'd). A special prosecutor differs from a deputy because a special prosecutor is not required to take a constitutional oath of office, unless the elected district attorney is absent or disqualified. Lopez v. State, 628 S.W.2d 77, 80 (Tex.Crim.App. [Panel Op.] 1982); Stephens, 978 S.W.2d at 731; Rogers, 956 S.W.2d at 625 n. 1; Davis v. State, 840 S.W.2d 480, 487 (Tex.App.-Tyler 1992, pet. ref'd).

*817Further, with a special prosecutor, the county attorney must retain control and responsibility for the prosecution. Stephens, 978 S.W.2d at 731; Rogers, 956 S.W.2d at 625 n. 1; State v. Rosenbaum, 852 S.W.2d 525, 529 (Tex.Crim.App.1993). “Control of the prosecution” means control of crucial prosecutorial decisions, including, but not limited to, decisions regarding whether to prosecute, what investigative powers to utilize, and what plea bargains to strike. Faulder v. Johnson, 81 F.3d 515, 517 (5th Cir.1996). Control of the prosecution is not determined according to quantitative analysis or by simply looking at who was lead counsel at trial; in fact, for tactical reasons, a county attorney can give substantial portions of the conduct at trial to a particularly skilled assistant without relinquishing control. Id. at 517-18 (citing Person v. Miller, 854 F.2d 656, 663 (4th Cir.1988)). The rationale for requiring the district or county attorney to retain control of the prosecution is to assure that the interests of society in providing justice and a fair trial are not secondary to the interests of private parties who, in some cases, pay fees to special prosecutors. See Faulder, 81 F.3d at 517. That concern is not present in this case, as Tanner is employed by the Attorney General of Texas and not only had the same statutory duty to see that justice is done as does the County Attorney, but also, as a state employee, had no allegiance to a private party based on financial remuneration.

The record does not demonstrate that Jimerson relinquished his constitutional or statutory duties or that he yielded control of this case. Since no objection was presented to Tanner’s prosecution, there was no hearing to develop a record as to Jimer-son’s control of the case. However, we note that Jimerson is listed on every volume of the court reporter’s record as one of the attorneys appearing on behalf of the State. It is undisputed that Jimerson was present during the trial. Tanner referred to Jimerson several times during the trial, stating they were “working alongside” each other.

We overrule the first point of error.

2. Admission of Exhibits 29-34

The second issue on appeal is whether State’s Exhibits 29-34 were improperly admitted over a timely objection that the State was unable to prove a proper chain of custody. The exhibits are a box spattered with blood and photographs of that box. The blood on the box is the only physical evidence of Hartsfield being present in KFC, and thus guilty of perjury. An abuse of discretion standard is used when reviewing a trial court’s decision to admit evidence. City of Brownsville v. Alvarado, 897 S.W.2d 750, 753 (Tex.1995); Smith v. State, 683 S.W.2d 393, 404 (Tex.Crim.App.1984). A trial court does not abuse its discretion in admitting evidence when it believes that a reasonable juror could find that the evidence has been authenticated or identified. Pena v. State, 864 S.W.2d 147, 152 (Tex.App.-Waco 1993, no pet.); Coleman v. State, 833 S.W.2d 286, 289 (Tex.App.Houston [14th Dist.] 1992, pet. ref'd).

Texas Rule of Evidence 901 requires the authentication or identification of evidence to establish that the matter in question is what the proponent claims it to be. TexR. Evid. 901. In providing the proof necessary to comply with Rule 901, the proponent of the item of evidence must present differing types of evidence depending on the nature of the item. Articles that are easily identifiable and are substantially unchanged normally do not require the introduction of a chain of custody. See, e.g., Outland v. State, 810 S.W.2d 474, 475 (Tex.App.-Fort Worth 1991, pet. ref'd) (pistol seized from defen*818dant’s automobile and identified by officers together with no evidence of tampering was sufficient even though pistol not tagged when seized). If the item has distinct or unique characteristics, a witness may authenticate it by testifying that he or she has previously seen the item at the relevant time and place and that the witness recognizes it by its distinctive characteristics. See Mendoza v. State, 69 S.W.3d 628, 631 (Tex.App.-Corpus Christi 2002, pet. ref'd). However, if the article of evidence has no distinctive features or is fungible, the item must be proven by showing a chain of custody, typically from the scene of the crime to the courtroom. Authenti cation of such an article may be accomplished by marking the item and identifying it at trial as the same, so long as there is no evidence of tampering or alteration. See Garcia v. State, 637 S.W.2d 930, 934 (Tex.Crim.App.1976). The chain of custody is conclusively proven if the officer is able to identify that he or she seized the item of physical evidence, put an identification mark on it, placed it in the property room, and then retrieved the item being offered on the day of trial. Stoker v. State, 788 S.W.2d 1, 10 (Tex.Crim.App.1989) (citing Elliott v. State, 460 S.W.2d 863, 864 (Tex.Crim.App.1970)). Generally, when the evidence sought to be admitted may be distinguished only via scientific testing, then a chain of custody must be demonstrated. Porter v. State, 969 S.W.2d 60, 66 (Tex.App.-Austin 1998, pet. ref'd) (urine specimen); Davis v. State, 831 S.W.2d 426, 442-43 (Tex.App.-Austin 1992, pet. ref'd) (blood specimen). Any gaps in the chain of custody go to the weight of the evidence, not admissibility; however, proof should be shown as to the beginning and end of the chain. Porter, 969 S.W.2d at 66; Davis, 831 S.W.2d at 443.

The State maintains that the box has distinct or unique characteristics and, therefore, a chain of custody is unnecessary to prove authentication. Hartsfield emphasizes the evidence consists of a blood specimen, not just the box, and therefore the custody chain is required. But the evidence sought to be admitted here is not a vial of blood that could only be identified if it had been properly marked for identification when it was acquired and thereafter traced. Here, the item was a box that had an unusual characteristic — a marking that appeared to be blood spatter. Until that box was analyzed, it could not be determined that the marking on the box was in fact blood. This Court has considered an analogous situation in Jackson v. State, 968 S.W.2d 495 (Tex.App.-Texarkana 1998, no pet.). In Jackson, the defendant was charged with sexual assault. A search of his residence uncovered certain items, including blood-stained jeans. The jeans were identified by the defendant’s wife, who had personal knowledge that Jackson was wearing them on the night of the assault. An expert testified that the blood on the jeans came from the victim. Even though the defendant objected to a proper chain of custody concerning the jeans and the blood, his wife’s identification of the jeans was sufficient to show the jeans were what the State claimed. Id. at 500. Likewise, here identification of a box with distinct characteristics by a witness who saw it at the scene of the crime is sufficient authentication. We turn to the evidence presented on this issue.

There are no photographs of the box at the restaurant, and at trial, the State conceded that it could not prove who removed the box from the restaurant. Officers used ten rolls of film to photograph the KFC, but only one of the rolls developed properly. None of the photographs showed the box at the KFC scene. The manager of KFC, Leann Killingsworth, testified that the box was the same kind of *819box that was used at the restaurant. Kill-ingsworth also testified that the box was kept in the empty space underneath and to the right of the cash register. However, Elliott, who assisted in the investigation of the crime scene, testified that State’s Exhibit 29 was the box from KFC. First, Elliott recognized State’s Exhibit 29 as the type of box he saw at KFC in the place where Killingsworth testified it was kept. Then Elliott testified that the blood spatter on State’s Exhibit 29 was in the same pattern as he remembered being on the box at KFC. Last, he testified there was no question in his mind State’s Exhibit 29 was the same box that he saw at KFC on the night of September 24,1983.

In Jackson, the wife’s personal knowledge that Jackson was wearing the jeans on the night of the assault sufficiently authenticated the pants to allow the admission of the results of DNA tests done on blood on the jeans. She had seen those jeans on Jackson that night. Id. at 500. Elliott saw this box at KFC that morning. Elliott’s testimony is sufficient to prove the item is what it is claimed to be — the box, spattered with distinctive markings, found inside the KFC September 24, 1983. The trial court did not err in admitting the evidence.

We affirm the judgment of the trial court.

OPINION

ODOM, Judge.

This appeal is from a conviction for the offense of murder. Punishment was assessed at seventy years.

The sufficiency of the evidence is not challenged. Suffice it to say that the record reflects that on March 30, 1970, appellant and two other men burglarized the private residence of a sixty-seven year old woman. The woman’s hands and feet were bound with black, electrical tape during the commission of the burglary. The woman died due to severe blows to her head caused by either a blunt instrument or the fist and heels of her assailants. A fingerprint expert testified that the appellant’s fingerprint matched one found on the black electrical tape that bound the deceased’s feet.

*209By his first ground of error appellant contends that the trial court erred when it refused to grant his motion for mistrial after the prosecutor injected before the jury his personal opinion of appellant’s guilt.

During the opening voir dire of the jury, the prosecutor made the following statement:

“MR. McMANUS: The penalty for murder-you can also get the electric chair. I have not filed a motion requesting the electric chair in this case. Now, I may have made a mistake-.”

An objection was sustained and the jury was instructed to disregard the remark. The ruling cured the error, if any.

We find no merit in appellant’s second ground of error, that it was improper for the prosecutor to tell the jury panel on voir dire that they could use “common sense, horse sense, your experience during life,” to make deductions from the evidence.

The third ground of error is a contention that the state improperly put before the jury evidence of appellant’s prior conviction. The trial court granted motion in limine upon appellant’s request that the court instruct the district attorney and an accomplice witness not to mention the fact that appellant and the witness had met in the Texas Department of Corrections, or to allude to the fact that appellant was in the penitentiary any time prior to this offense. Thereafter, the prosecutor asked the witness the following questions:

“Q. Let’s see-Mr. Adwell, I believe you have been to the penitentiary, haven’t you?

A. Yes, sir.

Q. When did you get out of the penitentiary ?

A. October 14, 1969.

Q. When did you meet Mr. Haas ?

MR. BALDWIN: Your Honor, we’ll have to go outside the presence of the jury again.”

Out of the presence of the jury, appellant’s counsel complained that by asking the above questions the prosecutor attempted to and did circumvent the ruling made in the motion in limine and moved for a mistrial.

Appellant argues that the prosecutor’s questions were “a deliberate attempt-to circumvent the ruling of the court”; that unless the witness answers “anything other than October the 15th or later, 1969, the appellant is placed in the penitentiary- and since the jury has already heard the questions, if we don’t have an answer for them, they are going to assume he met him in the penitentiary.”

The trial court denied the motion for a mistrial and pointed out that the question had not been answered and, although the jury was informed when the witness got out of the penitentiary, they did not know when he went in. The court then admonished the prosecutor about “trying to do indirectly what you can’t do directly” and instructed him not to ask the question again and to stay away from the subject altogether. The record reflects compliance with the court’s admonition.

No reversible error is shown.

By his fourth and fifth grounds of error, appellant contends that the court erred by admitting into evidence a photograph which shows the swollen hands of the deceased, tightly bound in black electrical tape. He argues that the fact that the deceased’s hands were taped behind her back could have been established by oral testimony and that the photograph was introduced for the sole purpose of inflaming the minds of the jurors.

In Martin v. State, 475 S.W.2d 265 (Tex.Cr.App.), we discussed the rule re*210garding the admissibility of photographs. Therein we stated:

“We hold that if a photograph is competent, material and relevant to the issue on trial, it is not rendered inadmissible merely because it is gruesome or might tend to arouse the passions of the jury, unless it is offered solely to inflame the minds of the jury. If a verbal description of the body and the scene would be admissible, a photograph depicting the same is admissible.” 475 S.W.2d at page 267.

See also, Terry v. State, 491 S.W.2d 161 (Tex.Cr.App.).

In the instant case, a verbal description of the body and the scene was admissible. Further, the appellant did not testify and an accomplice witness testified that they taped the deceased’s hands behind her back during the commission of the crime. A picture of the taped hnads would be admissible to corroborate that testimony. Clearly, the photograph was admissible into evidence.

The sixth ground of error is a contention that the trial court erred in overruling appellant’s motion to suppress the testimony of a witness on the ground that the witness had violated the “rule” in that he had discussed his testimony, concerning some fingerprints on tape binding the deceased’s legs, with the prosecutor in the presence of Officer Burkhart, another state witness. The trial court found that the witness, one Mr. Shiller, had not violated the witness rule because he had not yet been sworn as a witness as of the time the appellant alleged that the witness violated the rule.1

Assuming that there was a violation of the rule, this is not in itself automatically reversible error. Romero v. State, 458 S.W.2d 464 (Tex.Cr.App.1970); Hobson v. State, 438 S.W.2d 571 (Tex.Cr.App.1969). It has long been the rule in Texas that a violation of the rule may not be relied upon as a ground for reversal unless an abuse of discretion is shown, and until the contrary has been made to appear, it will be presumed on appeal that discretion was properly exercised. Davidson v. State, 386 S.W.2d 144 (Tex.Cr.App.1965). The ultimate test when a witness who has violated the rule has been allowed to testify is whether or not there has been injury done to the defendant. Two relevant criteria are: (1) did the witness actually hear the testimony of the other witness, and (2) did the witness’ testimony contradict the testimony of the witness that he allegedly heard. Murphy v. State, 496 S.W.2d 608 (Tex.Cr.App.1973); Day v. State, 451 S.W.2d 508 (Tex.Cr.App.1970).

The witness Shiller did not hear the testimony of the other witness, Officer Burkhart. Another point is that Shiller’s testimony did not directly contradict the testimony of Officer Burkhart. Burkhart had previously testified that he did not detect any fingerprints on the tape that bound the deceased’s legs and that he had given the tape to Shiller, of the Fort Worth Crime Lab. Shiller testified that he found one fingerprint of the appellant on this same tape. Therefore, we conclude that, since no abuse of discretion or injury *211has been shown by the appellant and the fact that the witness Shiller did not hear the testimony of Officer Burkhart or directly contradict it, the error, if any, is not reversible.2

Appellant urges, in his seventh ground of error, that a photograph of a fingerprint that the chemist found on the tape removed from deceased’s ankle should not have been admitted into evidence. He argues that it was inadmissible because the person that took the photograph was not present to testify.

As with demonstrative evidence generally, the prime condition on admissibility of a photograph is that it be identified by a witness as an accurate portrayal of certain facts relevant to the issue, and verified by such witness on personal knowledge as a correct representation of these facts. 3 Wigmore, Evidence, Sections 790-798a. Thus, the witness who lays the foundation need not be the photographer. In the instant case, the chemist who discovered the fingerprint and directed the photograph be taken testified that the photograph was an accurate portrayal of the fingerprint as he found it on the tape. Such was properly admitted.

It is appellant’s contention, in his eighth ground of error, that the court erred in not granting his motion for mistrial on the ground that he was denied a fair trial because of adverse publicity.

A newspaper article that appeared in the Fort Worth Press during the course of the trial was introduced into evidence on appellant’s motion for a mistrial. The article discussed matters that were not admitted into evidence.

The record herein reflects that the court admonished the jury before releasing them each afternoon not to read any newspaper articles concerning the trial. No evidence was offered that any juror violated the court’s admonishment, hence no error.

By pro se brief, appellant raises two additional grounds of error. First, he contends he was denied effective assistance of counsel. This contention is clearly not supported by the record.

Second, he complains that he was denied a speedy trial. The appellant in this case was arrested on April 19, 1970. He was indicted on June 9, 1970. Appellant’s trial took place on May 10, 1971, thus resulting in a lapse of less than thirteen months between arrest and trial. There is no constitutional basis for holding that the speedy trial right can be quantified into a specified number of days or months. Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). Rather, the approach of this court on speedy trial cases is on an ad hoc basis, using a “balancing test” in which the conduct of both the prosecution and the defense are weighed. George v. State, 498 S.W.2d 202 (Tex.Cr.App.1973); McCarty v. State, 498 S.W.2d 212 (Tex.Cr.App.1973).

Some of the factors which we assess in determining whether a particular defendant has been deprived of his speedy trial right under U.S.C.A.Const. Amendments 6 and 14, and Vernon’s Ann. St. Const. Art. I, Sec. 10, are: (1) length of delay; (2) the reason for the delay; (3) the appellant’s assertion of his rights; and (4) prejudice to the defendant.

As to the length of the delay, the period of time is measured from the time the defendant became the accused. United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971). In this case, there was a delay of less than thirteen months between the date of arrest and date of trial. A thirteen month delay is not so long as to demand a per se determi*212nation of a violation of appellant’s 6th Amendment rights.

Although no reason for the thirteen months delay is assigned, we conclude from our review of the record that there is no error. Appellant does not allege, and the record does not reflect any deliberate effort by the state to delay the trial in this cause. Furthermore, appellant took no action during this thirteen months delay to speed up the criminal process.

A defendant who fails to demand a speedy trial does not forever waive his right. The better rule, as stated by the U. S. Supreme Court, is that the defendant's assertion of or failure to assert his right to a speedy trial is one of the factors to be considered in an inquiry into the deprivation of the right. Barker v. Wingo, supra. In the case at bar, the appellant made no motion for a speedy trial or any semblance of a request for a speedy trial prior to his actual trial. Thus, we conclude that the appellant failed to assert his right to a speedy trial by not making diligent and repeated efforts. Dickey v. Florida, 398 U.S. 30, 90 S.Ct. 1564, 26 L.Ed.2d 26 (1970).

Prejudice should be assessed in the light of the interests of defendants which the speedy trial right was designed to protect. Some of these interests are: (i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired. Appellant makes no showing nor contention whatsoever as to how he was prejudiced. Harris v. State, 489 S.W.2d 303 (Tex.Cr.App.1973); Courtney v. State, 472 S.W.2d 151 (Tex.Cr.App.1971).

In summary, we conclude that appellant failed to show a violation of his 6th Amendment right to a speedy trial.

There being no reversible error, the judgment is affirmed.

*66 OPINION ON STATE’S PETITION FOB DISCRETIONARY REVIEW

KELLER, Judge,

delivered the opinion of the Court in which

McCORMICK, Presiding Judge, and MANSFIELD, HOLLAND and WOMACK, Judges, joined.

Appellant has been charged with capital murder. The trial court denied bail, and appellant appealed. The Court of Appeals concluded that the State had failed to show “proof evident” of appellant’s guilt of capital murder; consequently, the trial court was ordered to set a reasonable bail. See Angleton v. State, 955 S.W.2d 655, 659-660 (Tex. App. — Houston [14th] 1997)(lead opinion). See also Tex. Const., Article 1 § 11; Texas Code of Criminal Procedure, Article 16.15. In support of its holding that proof was not evident, the Court of Appeals found that an audio tape offered into evidence by the State had not been properly authenticated. Angle-ton, 955 S.W.2d at 659. In its petitions for discretionary review, the State contends that the Court of Appeals erred with regard to the authentication issue.1 We agree.2

On April 16, 1997, the police found Doris Angleton, appellant’s wife, dead in her home from a gunshot wound. There were no signs of forced entry at the scene. On April 28, appellant implicated his brother, Roger An-gleton, as possibly being involved in the crime. On July 17, Roger was arrested in Las Vegas, Nevada on an arrest warrant out of California. Subsequently, the Houston police obtained a court order, traveled to Las Vegas, and recovered property found in Roger’s briefcase. Among the property found in the briefcase was an audio tape.

An “enhanced” copy of the audio tape was introduced into evidence, over objection, at the bail hearing. Sergeant David Ferguson testified that he had listened to both the originial and enhanced versions of the tape. He explained that the enhancement merely reduced the background noise:

[DEFENSE COUNSEL]: Are there things on the enhanced version that you can hear that you can’t hear on the other version, that are audible on the enhanced version that are not audible on the other version?

[FERGUSON]: No sir, I wouldn’t — I wouldn’t say that.

[DEFENSE COUNSEL]: You don’t— well, can you — do you know?

[FERGUSON]: Maybe the background, some of the background noises. [DEFENSE COUNSEL]: Don’t speculate with me. Did — there must , have been a reason for enhancement. Was that reason to bring up things that perhaps were not audible on the original?

[FERGUSON]: That was to make the, I guess the parts of the conversation more audible, more — more clear so that you could understand what was being said.

Ferguson admitted that he had no knowledge of the procedures followed in making the enhancement.

Ferguson testified that the recording was a conversation between Roger and appellant. Ferguson explained that he recognized the voices on the tape because he had spoken with both persons on several occasions. He further testified that he had spoken with appellant three times in person and three or four times on the telephone and that he had no doubt in his mind about his identification of appellant’s voice on the tape.

The tape involves two men discussing the planned murder of a woman. The plan included disarming the house alann using code 00032. Appellant admitted to the police that 00032 was the alarm code for his home.

Each of the three judges on the Court of Appeals panel authored an opinion. The “lead” opinion, by Chief Justice Murphy, held that “[t]he State was required to furnish testimony of a witness who could verify the tape was what the State claimed it to be” and that the State had failed to do so. Id. Ae-*67cording to the lead opinion, the State had failed to do so because (1) Ferguson admitted that he did not have personal knowledge of where, how, when, or who made the tape recording, (2) he could not swear that the tape was an accurate recording of the conversation it purported to represent, (3) he could not testify as to the accuracy of the equipment that made the recording, and (4) he offered no information about the tape other than that it was an “enhanced” copy of the audio tape found in Roger’s briefcase. Id.. The Court of Appeals implicitly held that the above reasons showed a failure of proof of the authentication requirements contained in Tex.R.Crim. Evid. 901(b)(1) and Kephart v. State, 875 S.W.2d 319 (Tex.Crim.App.1994). Angleton, 955 S.W.2d at 659.

Justice Hudson authored a dissenting opinion in which he argued that Kephart should not be interpreted as holding “that the proponent can never authenticate a tape recording without the testimony of a sponsoring witness who is either (1) the maker of the tape or (2) was otherwise a participant in the recorded conversation.” Angleton, 955 S.W.2d at 661 (Hudson, J. dissenting). Instead, Justice Hudson contended that the tape recording could be authenticated under other provisions of Rule 901 that do not require the testimony of a witness with knowledge. Id. at 661-662. He found that the recording was sufficiently authenticated by circumstantial evidence. Id. at 662.

In a concurring opinion, Justice Fowler agreed with the reasoning of the dissent but felt constrained to join the lead opinion because of this Court’s decision in Kephart. Angleton, 664-665 (Fowler J, concurring). Justice Fowler contended that Kephart restricts authentication of a tape to “someone with personal knowledge of where or when the tape was made.” 955 S.W.2d at 664-665.

The authentication requirement for admissibility “is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” Rule 901(a). Rule 901(b) provides a nonexclusive list of

methods for authenticating evidence. Relevant to the present case are the following:

(1) Testimony of Witness With Knowledge. Testimony that a matter is what it is claimed to be.

(4) Distinctive Characteristics and the Like. Appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances.

(5) Voice Identification. Identification of a voice, whether heard firsthand or through mechanical or electronic transmission or recording by opinion based upon hearing the voice at any time under circumstances connecting it with the alleged speaker.

Rule 901(b)(selected portions).

The standard of review for a trial court’s ruling under one of the rules of evidence is abuse of discretion. Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997). At least under a straightforward reading of Rule 901(a) and the three illustrations set out above, the trial court did not abuse its discretion under the present record.

The State offered the audio tape as an accurate copy of a recording of a conversation between appellant and his brother Roger. The authentication requirements of Rule 901 would be satisfied by evidence sufficient to support a finding to that effect. Thus, in this case the authentication question has three parts: (1) whether the “enhanced” copy accurately depicts the contents of the original tape, (2) whether the voices on the tape are those of Roger and appellant, and (3) whether the depiction of the conversation on the tape as a continuous conversation between the participants is aceuratefi.e. the conversation on the tape is not the result of splicing or some other alteration). The three illustrations of authentication all play a role in resolving this three-part authentication question.3

*68Part one of the authentication question is proven through illustration (1). Sergeant Ferguson testified that he listened to both the original and enhanced tapes and the enhanced tape merely reduced background noise; no part of the conversation was audible on the enhanced version that was not also audible on the original. Hence, as to whether the tape accurately depicted the contents of the original, Ferguson’s testimony was that of a witness with knowledge. Having listened to both tapes, he could testify that the enhanced tape was an accurate copy of the relevant contents of the original.

Part two of the authentication question is proven through illustration (5). Ferguson identified the voices on the tape as those of Roger and appellant. Ferguson was qualified to make such an identification because he had carried on conversations with both men on several occasions.

Part three of the authentication question is proven through illustration (4). The content of the tape supports its authenticity. Appellant and Roger’s voices were identified as being on the tape. There is no evidence that the tape contained any pauses or breaks in the recording. While the recording is difficult to understand and even unintelligible in some places, nevertheless the recording contains periods of cohesive, coherent conversation. Appellant and Roger discussed using a gun to kill appellant’s wife. And the tape contained discussion regarding the alarm code to appellant’s home and the arming and disarming of that alarm code to further the planned murder. Moreover, the alarm code to one’s home is not the kind of information that tends to be given out casually. While giving an alarm code to a relative may not seem especially strange in and of itself, such information is nevertheless quite sensitive, and the trial court was free to draw an incriminating inference from a non-household member’s possession of such information. This seems especially true in the present case, where appellant subsequently implicated his brother in the crime — suggesting that Roger was not the kind of person to whom one would give one’s home alarm code. Further, the circumstances under which the tape was obtained also support a finding that it is authentic. The tape was found in Roger’s possession in a suitcase during a search conducted by the police pursuant to a warrant. It was neither created by law enforcement personnel nor was it voluntarily released to them. That the tape was essentially wrested from Roger’s control is some evidence that the tape was not a fraudulent composition designed to frame appellant.

In addition, the above analysis is consistent with treatment of this issue in the federal courts. Federal courts addressing the issue have consistently held that the government does not have to prove when, where, how, ■ and by whom tape recordings were made, when those recordings were recovered from the defendant or an alleged co-defendant, were not created as a result of government involvement, were not tampered with, and the defendant is identified as a speaker on the tape. United States v. Mattar-Ballesteros, 71 F.3d 754, 769 (9th Cir.1995), cert. denied, U.S. , — U.S.-, 117 S.Ct. 965, 136 L.Ed.2d 850 (1997)(audio tapes obtained from codefendant); United States v. King, 834 F.2d 109, 114 (6th Cir.1987), cert. denied, 485 U.S. 1022, 108 S.Ct. 1576, 99 L.Ed.2d 891 (1988)(tape recording found at bookmaking site); United States v. Fuller, 441 F.2d 755, 762 (4th Cir.), cert. denied, 404 U.S. 830, 92 S.Ct. 73, 92 S.Ct. 74 (1971). See also United States v. Kandiel, 865 F.2d 967, 974 (8th Cir.l989)(strict compliance, with requirements found in United States v. McMillan, 508 F.2d 101 (8th Cir.1974), cert. denied, 421 U.S. 916, 95 S.Ct. 1577, 43 L.Ed.2d 782 (1975) unnecessary where tapes were found in the defendant’s possession). Traditionally, we have looked to interpretations of the Federal Rules of Evidence for guidance in construing our own Rules. Ludwig v. State, 931 S.W.2d 239, 241 (Tex.Crim.App.l996)(citing cases).

Having found that the plain language of Rule 901 and federal caselaw support finding the evidence admissible, we finally turn to the Court of Appeals’ contention that our decision in Kephart holds to the contrary. For authentication, pre-rules caselaw required a party to offer the testimony of a *69witness with knowledge or to satisfy a seven-pronged test set out in Edwards v. State, 551 S.W.2d 731 (Tex.Crim.App.1977). Kephart, 875 S.W.2d at 320. Kephart suggested that Rule 901 was consistent with the pre-rules authentication requirements. We hold that suggestion to be in error. While the Edwards test and other pre-rules caselaw may often yield the same results and may sometimes employ similar reasoning to that required under Rule 901, that is not invariably the case. And, we find that attempting to cling to the Edwards test after the enactment of Rule 901 will result in unwarranted confusion for practitioners, trial courts, and appellate courts. Rule 901 is straightforward, containing clear language and understandable illustrations. Kephart is overruled.

Hence, we conclude that the trial court did not abuse its discretion in ruling that the audio tape was properly authenticated. We reverse the judgment of the Court of Appeals and remand the case to that Court to reconsider the issue of proof evident.4

MEYERS, J., filed a dissenting opinion in which BAIRD, OVERSTREET and PRICE, JJ., joined.

MEYERS, Judge,

dissenting.

I agree with the majority that there are problems with this Court’s opinion in Kep-hart. But having disavowed that opinion, we ought to remand this case to the Court of Appeals to reconsider the authenticity of the evidence.

Rule of Criminal Evidence 901 provides in part:

(a) General Provision. The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.

Rule 901 also sets forth a number of “examples” “by way of illustration only, and not by way of limitation!,]” as to how a piece of evidence might be authenticated, including the following:

(1) Testimony of Witness with Knowledge. Testimony that a matter is what it is claimed to be.

In Kephart we transformed this single “example” into a “requirement” for authenticating a video tape recording. This error derived from the fact such a requirement existed under pre-Rules caselaw and the Court mistakenly concluded that Rule 901 is consistent with pre-Rules caselaw:

... it is clear that our pre-rules caselaw regarding authentication of video tapes required that either the [seven pronged] Edwards test be satisfied or a sponsoring witness have knowledge of the scene depicted. [citations omitted] Keeping these principles in mind we hold that Rule 901 is consistent with our pre-Rules interpretations requiring authentication of video tapes.

Kephart, 875 S.W.2d at 322. Thus, we held the State failed to authenticate the tape because the testifying officer “did not know when the.tape had been made ... had no personal knowledge of where or when the tape had been made, [and] could not [ ] state that the tape accurately represented the actual scene or event at the time it occurred.” Id. at 322-23.

Following Kephart, the Court of Appeals held Rule 901 “requires'the sponsoring witness to have knowledge that the evidence is what its proponent says it is.” Angleton v. State, 955 S.W.2d 655, 659 (Tex.App.1997) (emphasis added). Thus, the court concluded the tape was not properly authenticated because the sponsoring witness “admitted” it was not the original, was unable to provide “any information as to how the offered tape differed from the original recording other than it had been ‘enhanced!,]’ ” “admitted he *70did not have personal knowledge of where, how, when or who made the recording^]” and “could neither swear the tape was an accurate recording of the conversation it purported to represent, nor could he testify as to the accuracy of the equipment that made the recording.” The Court held

The State was required to furnish testimony of a witness who could verify the tape was what the State claimed it to be. In the absence of such evidence, we find the State failed to lay the proper predicate for the'court to admit the tape into evidence.

Id. at 659. The two other justices on the panel wrote separately, opining that Kephart wrongly limited Rule 901 by suggesting that a tape recording can only be authenticated by the testimony of one who either made the tape or was a participant.

And they are right. Rule 901 imposes no such requirement; Kephart was wrong to indicate otherwise. This case ought to- be remanded to the Court of Appeals for reconsideration of the issue, sans Kephart — at least part of it.

Not all of Kephart is wrong, however, as that opinion did well to point out that authenticity is, at its heart, a question of relevance.1 Kephart, 875 S.W.2d at 321. This elemental, yet essential notion is explained by commentators Goode, Wellborn and Sharlot:

“Authentication and identification,” according to the drafters of the federal rules, “represent a special aspect of relevancy.” They explain: “Thus a telephone conversation may be irrelevant because on an unrelated topic or because the speaker is not identified....” As the example shows, the problem of authentication of identification is not confined to documentary or real evidence. It arises whenever the relevancy of any evidence depends upon its identity, source, or connection with a particular person, place, thing or event. “The foundation on which the necessity of authentication rests,” wrote Wigmore, “is not any artificial principle of evidence, but an inherent logical necessity.” ...

When real evidence is offered, often its condition as well as its identity is important. When this is so, a proper foundation must include evidence that the item is in substantially the same condition when presented as at the legally material time, e.g., the time of the accident, the time of first discovery, etc_ It is not required, however, that all possibility of tampering or adulteration be eliminated. Moreover, even if a change in the condition of an item has occurred, it is not necessarily thereby rendered inadmissible. So long as the probative value of the item, despite the change, outweighs the danger of misleading the jury, it will still be admissible, and the change in its condition will be a matter going only to its weight as evidence.

2 Steven Goode et al, Texas PRACTICE, Guide to Texas Rules of Evidenoe: Civil and Criminal § 901.1, at 191-92 (2nd ed.1993). Further, the question of the authenticity of a piece of evidence is one of “conditional relevancy” which is subject to a “prima facie case” determination by the trial judge, pursuant to Rule of Criminal Evidence 104(b). Id. at 192-93.

*71I point this out because the majority, despite its 9 page opinion, never mentions relevance; and, it is integral to an understanding of authentication.2 In the instant case, the question boils down to whether the State, as proponent of the audio tape, has authenticated it by establishing its relevance to the case by any number of methods, some of which are described in Rule 901.

The Court of Appeals has reviewed the record and is infinitely more familiar with the facts of this case than this Court is or ought to be at this point. We should remand this case to them to reconsider the trial court’s ruling as to the authenticity of the tape without the constraints imposed under Rule 901 by Kephart and,3 if necessary, assess its weight in connection with the larger question of proof evident.

BAIRD, OVERSTREET and PRICE, JJ., join.

Richardson, J., delivered the opinion for a unanimous Court.

Appellant, Jamel McLelland Fowler, was convicted of stealing a Kawasaki Mule all-terrain vehicle (ATV) (valued at $1,500 or more but less than $20,000) from complainant Paul Blassingame.1 The jury assessed his punishment at confinement for two years. Fowler appealed his conviction. The Sixth Court of Appeals found the evidence sufficient to support Fowler's conviction; however, it reversed the conviction, holding that the trial court committed reversible error by admitting an unauthenticated videotape exhibit into evidence.2 We disagree and hold that the trial court did not abuse its discretion by admitting the video.

BACKGROUND

In 2014, Fowler was charged with three separate offenses which were consolidated and tried together. This appeal involves only the conviction arising out of the theft of a Kawasaki Mule ATV. The owner of the ATV reported that it had been stolen from property he owned in Hunt County. Officer Jaime Torrez was called to testify for the State. Officer Torrez testified that during the months of November and December, 2014, he responded to "numerous burglary calls to the Lattimore Materials business" in Royse City, Texas. The first call was in early November 2014. Upon investigating, he discovered an area where some heavy-duty wires or cables were cut, and he retrieved three bolt cutters nearby. Based on his training and experience, Officer Torrez seized the bolt cutters, believing that they could have been used by the burglars to cut locks, wire, cables, and chain-link fences located on that property. Officer Torrez described the process he went through when collecting evidence and logging it in. There was also evidence presented at the trial that multiple bolt cutters were found in Fowler's truck, and that *846Fowler's truck was seen driving at odd hours and under suspicious circumstances in the neighborhood near Lattimore Materials.

Officer Torrez then testified that he and another officer, Officer Dial, were called back to Lattimore Materials about a month later, in December 2014. They followed tire tracks believed to belong to an ATV leading from the Lattimore Materials building that had been burglarized. Officer Torrez testified that Officer Dial located an ATV in an open field near a heavy tree line about 100 yards north of the Lattimore Materials building. Officer Torrez found the VIN number to the ATV, and dispatch confirmed that it had been reported stolen.

On the ground about three feet from the ATV was a paper receipt from a Family Dollar store. On that receipt, which is date- and time-stamped, was listed "silver duct tape", Glade Air Freshener, two "utility knives" (also referred to by the witness as "cutters" or "box cutters")3 , and a "razor scraper" with five blades. The officers also found packaging for the box cutters lying on the ground about 15 to 20 feet from the ATV. Officers Dial and Torrez placed the evidence in an evidence locker and followed proper procedures to log all of these items into evidence. Officer Torrez testified that, based on his training and experience, what they found signified "that someone went to the Family Dollar, purchased the item, and probably was at that location with the other items there."

Later that day Officer Torrez and another officer (Officer Meek) went to the Family Dollar store that issued the receipt they had found near the ATV. Officer Torrez spoke with the manager of the store and asked for surveillance footage from the date and time listed on the receipt. The manager of the store retrieved a videotape stamped with the same date and time as on the receipt. Since the video was not in a format that allowed it to be copied, under Officer Torrez's supervision, Officer Meek used his Royse City Police Department camera to record a copy of the surveillance video. After the videotape was recorded by the police, they went back to the Royse City Police Department where the video recording was then downloaded onto a hard drive and attached to the case report. There was no audio on the tape.

Defense counsel objected to the admission of the videotape based first on the argument that the video was an incomplete copy of a recording:

[T]he video that [he] watched ... had four panes.... [A]nd in the process of his making a recording, he zeroed in on one or two different panes.... So, therefore, we have an incomplete copy of whatever it is that we have.... If he had videoed all four frames, that might be a different issue than what I'm dealing with right now ... is it a true and accurate copy because then it would have been.... [W]hen you're singling out certain portions and not making available the entire thing, that's the problem.

Defense counsel insisted that "They've got to establish why their original is not available, not that it's just not available.... They need somebody from the Family Dollar store to say, I'm sorry we can't give you that so, therefore, now you get to use this one." However, the trial court judge did not seem troubled by the fact that the video exhibit was a recording of a recording, nor was that considered a problem by *847the court of appeals: "The fact that the challenged video recording is a recording of a recording is not the problem which must be addressed.... Torrez adequately demonstrated that the recording he made of the store's surveillance monitor was a duplicate copy of the relevant part of the original surveillance recording."4

In responding to the defense counsel's objection, the State agreed with the defense that the judge should review the recording to determine if it was properly authenticated and hence admissible. After watching the video, the trial judge stated as follows:

All right. We're back on the record. I think that there's one question I need to ask to make sure before I know how to proceed. And that is this, has the officer testified-I didn't hear it if he did. And I don't know if the officer has testified how he determined what time and date he was going to make the video for.... And so I think I'm going to-I would sustain the objection at this time to the admission of this until it's established what time and date. But let me say that my review of both State's Exhibit 120 and of the law says that authentication of a video under Kephart v. State, 875 S.W.2d 319 [ (Tex. Crim. App. 1994) ] is the same as a still photograph. That it depicts what it purports to depict. And the officer has testified that he made this video and how he made the video. I think the fact-just to be quite honest with you, the fact that all four frames are not depicted is not going to prevent the admissibility of this document or this video. I don't-I don't think that it does because the officer doesn't-it depicts what it purports to depict.... but I believe he needs to testify before I can rule on the admissibility of it as to how he determined when and what to videotape. And I don't think I've heard that yet.

The jury was brought back in, and the State elicited the following testimony from Officer Torrez to authenticate the video:

Q. Officer Torrez, we were talking about going up to the Family Dollar store and doing a recording. What specifically were you looking for on the recording at the Family Dollar surveillance video?

A. On the receipt it had a time and date.

Q. And did you use that information-what did you do with the information that was on State's Exhibit 119 [the receipt] when you went up to the Family Dollar video [sic ] store?

A. The video was-I guess the time and date of the receipt was also located on the video.

Q. Did you personally take the time and the date on the receipt to pull up your video to that spot or did you ask somebody to do that?

A. I asked one of the-the manager.

Q. Okay. And what, after you asked the manager to do that, made you feel-made you believe that he pulled up what you wanted to be recorded?

* * *

A. The same time and date on the video was the same that was on the receipt.5

The defense objected that a proper predicate had not been laid, but the trial court overruled the objection and admitted the video into evidence.

The officer then testified that, on the video, the customer, who turned out to be Fowler, was "holding [ ] in his hand"

*848"some cutters in a plastic wrap." The State argued that the video depicted Fowler entering the store and purchasing the items listed on the receipt that was found near the stolen ATV. The jury found Fowler guilty of theft of property valued at between $1,500 and $20,000 and rendered a punishment verdict of two years' confinement.

ANALYSIS

Texas Rule of Evidence 901 governs the authentication requirement for the admissibility of evidence:

(a) In General. To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.6

Authenticity may be established with evidence of "distinctive characteristics and the like," which include "[t]he appearance, contents, substance, internal patterns, or other distinctive characteristics of the item, taken together with all the circumstances."7 Conclusive proof of authenticity before allowing admission of disputed evidence is not required.8 Rule 901"merely requires some evidence sufficient to support a finding that evidence in question is what the proponent claims."9

On direct appeal, Fowler claimed that the trial court reversibly erred in admitting into evidence the surveillance video from the Family Dollar store. The court of appeals agreed with Fowler that the video of the store's surveillance footage had not been properly authenticated under Rule of Evidence 901 and was therefore improperly admitted into evidence.10 We granted the State's petition for discretionary review to answer the following question:

May the proponent of a video sufficiently prove its authenticity without the testimony of someone who either witnessed what the video depicts or is familiar with the functioning of the recording device?

Our answer to this question is-yes, it is possible.

Appellate review of a trial court's ruling on authentication issues is done under an abuse of discretion standard.11 This deferential standard requires an appellate court to uphold a trial court's admissibility decision when that decision is within the zone of reasonable disagreement.12 A trial court judge is given considerable latitude with regard to evidentiary rulings. Different trial judges may "reach different conclusions in different trials on substantially similar facts without abusing their discretion."13

If the trial court's ruling that a jury could reasonably find proffered evidence authentic is at least "within the zone of reasonable disagreement," a reviewing court should not interfere.14 In Butler v. State , we clarified that "it is the jury's role ultimately to determine whether an item of evidence is indeed what its *849proponent claims; the trial court need only make the preliminary determination that the proponent of the item has supplied facts sufficient to support a reasonable jury determination that the proffered evidence is authentic."15 This has been described as a "liberal standard of admissibility."16

With regard to the authentication of the videotape recording, the court of appeals held as follows:

While the date and time on the lower center part of the screen on Torrez' recording of the store recording generally corresponds with the date and time on the receipt found near the ATV, there was no evidence that the surveillance system was working properly on the date in question, that its on-screen clock was correctly set and functioning properly, or that the original accurately portrayed the events that purportedly occurred at the time and on the date shown in the video record. Without such proof, there was no showing that the store's video recording was made on the same day as the receipt or that it accurately portrayed what the State alleged that it portrayed.17

The court of appeals's point is well-taken-the State could have done more. However, even though the most common way to authenticate a video is through the testimony of a witness with personal knowledge who observed the scene, that is not the only way . Evidence can also be authenticated by "[t]he appearance, contents, substance, internal patterns, or other distinctive characteristics of the item, taken together with all the circumstances."18

Video recordings without audio are treated as photographs and are properly authenticated when it can be proved that the images accurately represent the scene in question and are relevant to a disputed issue.19 The State presented the following circumstantial evidence to authenticate the video recording:

• the officer's in-person request of the manager of the Family Dollar store to pull the surveillance video on a certain date at a certain time;

• the distinctive characteristic that there is a date and time stamp on the videotape;

• the fact that the date and time on the videotape correspond to the date and time on the receipt that was found within three feet of the ATV;

• the fact that the videotape pulled by the manager reveals Fowler at the store on that date at that time purchasing the items listed on the receipt *850that was found near the stolen ATV.

Admittedly, the State could have produced testimony from witnesses who would have further authenticated the videotape, such as the manager of the Family Dollar store who pulled the videotape from the shelf, or the employee of the Family Dollar store who was responsible for maintaining the surveillance equipment, or the employee of the Family Dollar store who was working the cash register in question on the exact date and at the exact time on the videotape. However, a zone of reasonable disagreement is exactly that-a zone. We hold that the trial court's determination-that Officer Torrez supplied facts sufficient to support a reasonable jury determination that the videotape was authentic-was a decision still within the zone of reasonable disagreement.20 The trial court did not err in admitting the videotape. Because the court of appeals erred in holding that the video recording was improperly admitted into evidence, we reverse that portion of the judgment of the court of appeals.21

The court of appeals also addressed Fowler's challenge regarding legal sufficiency and held that "the evidence was sufficient for a rational jury to have found beyond a reasonable doubt that Fowler stole Blassingame's ATV."22 However, because it held that the video recording was erroneously admitted, the court of appeals reversed Fowler's conviction even though it found the evidence legally sufficient to support the conviction.23 The court of appeals did not address Fowler's third point of error challenging the introduction of extraneous offense evidence.24 We therefore remand this case to the court of appeals to address Fowler's remaining point of error.

OPINION

BOB McCOY, Justice.

I. Introduction

In six points, appellant Amanda Marie Massimo challenges her misdemeanor conviction for harassment by electronic communication. In points one and two, Massimo complains the trial court erred by allowing the introduction of certain evidence and failing to grant a continuance *212after ruling the evidence could be introduced. In points three and four, Massi-mo’s complaints center on the admission of certain e-mails, State’s Exhibits 1 and 6. Finally, in points five and six, Massi-mo complains that the evidence was not legally or factually sufficient to support the jury’s guilty verdict. We will affirm.

II. Factual and Procedural Background

Renee Kreshak was a friend of Amanda Massimo and Melissa Taylor in Lewisville, Texas, having known Taylor since high school and Massimo about a year and a half to two years. Massimo and Taylor had a disagreement, leading to a physical altercation and a police complaint being filed by Taylor. Shortly thereafter, beginning October 22, 2002, Taylor began receiving threatening e-mails, which she believed were sent by Massimo, the first of which was identified at trial as State’s Exhibit l.1 At one point in her testimony, Taylor did not recall Massimo’s e-mail address although she recalled it later and, as she never saw her send the e-mail, could not say for certain who was sending the threatening e-mail. Taylor was fearful and felt threatened, and believed the email came from Massimo because of the content. The language used was consistent with Massimo’s and the account address, babycol20@yahoo.com, was recognized by Taylor as Massimo’s, although Taylor stated that Danielle Jones, and Kreshak besides Massimo, knew about the contents of the e-mail. Kreshak had previously witnessed Massimo sending Taylor a threatening e-mail which in part stated that “I will kill you and your two kids,” but it was not State’s Exhibit l.2 The threatening e-mail witnessed by Kreshak was sent to rodeosweetheartl2002@yahoo.com which was known by Kreshak to be Taylor’s e-máil address. When Kreshak subsequently went to Taylor’s home, she was told by Taylor that Massimo had been emailing her and threatening her and her children. On October 29, 2002, Taylor reported the threatening e-mails to police.

The next day, the Flower Mound Police Department assigned the e-mail complaint to Detective Sparby, who twice attempted to contact Massimo by phone on November 11 and left a business card on the door of her home the following day. Sparby received no immediate response to her phone calls and business card until she emailed Massimo at babycol20@yahoo.com, the address provided to her by Taylor.3 The following series of e-mails, comprising State’s Exhibit 6, were exchanged through November 16, 2002:

Amanda,

I am a detective with the Town of Flower Mound Police Department and I need *213to speak with you. Please contact me at the phone number below.

Thanks

Detective Misty Sparby Crimes Against Persons Flower Mound Police Department 972.874.3348 Direct Line 972.874.3362 Fax

[At 3:20 p.m. that same day, a reply was received from babycol20@yahoo.com:]

Dear Misty,

Can you e-mail me back and tell me why you want to speak with me.

Thanks

Amanda

[Detective Sparby responded:]

It is in reference to harassment.

Thanks

[On November 14, Detective Sparby was sent the following:]

First off i did not harass nobody, melis-sa taylor broke into my e-mail and sent it herself, and used other people to do it also, she knew what my password was in the first place, i had to change my whole account because it was tampered, second i do not need melissa taylor’s mom calling my house and calling me a bitch, etc. And my mom is about to file false accusation charges with the state on her.

[Detective Sparby subsequently wrote:]

Amanda,

This issue is not going away, I need you to come and talk with me. I have an open investigation, adn [sic] this is not going to be cleared up by us e-mailing each other. We can go about this one of two ways. I can either obtain a warrant for your arrest on the information I have right now, or you can come in and explain to me your side of the situation. At the current time I do not have proof that she broke into your email, and can not get that proof without your assistance.

Call me.

Detective Sparby

972.874.3348

[The following reply was sent on November 16 at 4:52 p.m.:]

ok i am going to say a couple things first you do not have permission to e-mail me, and you are trespassing on personal property without a warrant, i do not live in lewisville no more so i do not know how to go down and contact you, another thing is this, i will be contacting the state if you keep on harrassing [sic] me and i will speak with your boss kenneth brooker chief [sic] of police, another thing also the district attorney that my mom knows really well told me you have no proof i am personally sending melissa e-mails, and me personally i am sorry but i am not going to waste my precious time for somebody that is not worth my time.

Although Sparby had no certainty as to the authenticity of the e-mail messages between herself and the correspondent at baby20col@yahoo.com, and testified that other people besides Massimo may have had knowledge of the contents of those emails, only Massimo went to the police station and complained to Corporal Lucio and Lieutenant Mitchell that Sparby was harassing her after the final e-mail alluding to the author filing a harassment complaint with the police. In early December 2002, Sparby learned from Kreshak that she had witnessed Massimo sending Taylor a threatening e-mail the previous October from another Yahoo account address. At some point, Sparby also received information from Kreshak that Massimo had spoken to someone named Benny Verver (phonetic spelling) about having Sparby killed. Massimo was arrested in Lewis-ville on January 25, 2003 and charged with *214two counts of harassment by electronic communication.

Massimo pled not guilty on July 28, 2003 and was found guilty by a jury to one count of harassment by electronic communication, a violation of section 42.07(a)(2) of the Texas Penal Code. See Tex. Penal Code Ann. § 42.07(a)(2) (Vernon 2003). The jury assessed punishment at 180 days’ confinement in the Denton County Jail and a $1000 fine with a recommendation that Massimo be placed on community supervision, which sentence was imposed the same day.

III. Massimo’s Motions to Dismiss and for Continuance

On July 11, 2003, Massimo filed her Motion for Discovery and Inspection of Evidence, requesting copies of e-mails which the prosecution alleged were sent by Massimo to Taylor. At the pretrial hearing on July 25, 2003, the trial court granted Massimo’s request and told the prosecution to “[g]o ahead and make him a copy of those and get them to him by the end of th[e] day.” The following Monday, July 28, Massimo’s counsel complained that he had not gotten the e-mails in question until that morning, the day of trial, and asserted a motion to dismiss the case for failure to provide him the e-mails. The following exchange took place in connection with the dismissal motion:

THE COURT: So you presented yourself to the DA’s office before five o’clock on Friday to pick up those documents?

[DEFENSE COUNSEL]: My understanding, they were supposed to be faxed to me.

THE COURT: No, sir, you were supposed to get those documents yourself. No one ever mentioned anything about anything being faxed to you.

In points one and two, Massimo complains that the trial court erred in overruling her Motion to Dismiss and to Prevent the Prosecution from Introducing Evidence that the State Failed to Disclose Pursuant to a Pretrial Discovery Order (the e-mails provided to him on the day of trial), and further erred by not granting a continuance in light of the late receipt of the e-mail evidence. It is axiomatic that a court may prevent the introduction of State’s evidence if it has been withheld though subject to disclosure under a discovery order, or in violation of the discovery order. Lindley v. State, 635 S.W.2d 541, 543 (Tex.Crim.App.1982); Hollowell v. State, 571 S.W.2d 179, 180 (Tex.Crim.App. 1978). However, such is not the case here. It is apparent from the verbal exchange between the trial judge and defense counsel that the judge expected defense counsel to pick up the documents that he wanted, and had known about it for some time, but counsel failed to do so. This is far from unlawfully withholding evidence and violating a discovery order and does not warrant dismissal or suppression of the evidence. Further, the only reason articulated by defense counsel to the court as to his need for the e-mails was to hire an expert to determine their source. An expert can be retained without the contents of the e-mails, and as Massimo had been represented by counsel since April 28, 2003, and yet waited until seventeen days before trial to file her Motion, for Discovery and Inspection of Evidence, the failure to obtain an expert or obtain the e-mails until the eve of trial can hardly be the fault of the State. Therefore, Massimo has shown no harm in obtaining the e-mails on the Monday of trial instead of the Friday before trial, and was at least partially, if not totally, responsible for their last-minute production.

*215Further, had there been a violation of a trial court’s pre-trial discovery order which caused surprise to Massimo, the proper procedure at that point would have been to request a continuance of the trial. Duff-Smith v. State, 685 S.W.2d 26, 32 (Tex.Crim.App.), cert. denied, 474 U.S. 865, 106 S.Ct. 186, 88 L.Ed.2d 154 (1985). Moreover, the motion for continuance must be written and sworn. Tex.Code CRiM. PROC. Ann. arts. 29.03, 29.08 (Vernon 1989). If a proper motion for continuance to obtain evidence is denied, a motion for new trial is required, which by affidavit or other evidence shows the nature and materiality of the missing evidence. White v. State, 657 S.W.2d 877, 881 (Tex.App.-Fort Worth 1983, no pet.). No written continuance motion was filed, nor was even a formal oral motion presented — only a complaint by Massimo’s counsel that he needed an expert and did not have one, which was brought to the court’s attention “30 minutes after the case was set for trial today.” The Court construed this as a request for a continuance and denied it. As procedural requirements for a continuance were not followed in this case, nor has harm been shown, and bearing in mind that the review of a ruling on a motion for continuance is under the abuse of discretion standard,4 we cannot say that the trial court erred in failing to dismiss the case, suppress the e-mails, or abused its discretion in denying what the trial court construed as an oral motion for continuance. Massimo’s points one and two are overruled.

IV. Exhibits 1 and 6

Massimo next assigns error in her points three and four, complaining that the trial court erred in admitting State’s Exhibits 1 and 6 because they were not properly authenticated and additionally because Exhibit 6 was hearsay. Massimo objected to the introduction of Exhibit 1 on the grounds that it was not properly authenticated and was not linked to her. We review the trial court’s decision to admit evidence under an abuse of discretion standard. Burden v. State, 55 S.W.3d 608, 615 (Tex.Crim.App.2001). We will not reverse a trial court’s ruling unless that ruling falls outside the zone of reasonable disagreement. Id.

Texas Rule of Evidence 901(a) states that “[t]he requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims,” while subsection (b) of the rule illustrates examples of authentication or identification meeting the requirements of the rule, including “[ajppearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances.” Tex.R. Evid 901(a), (b)(4). There is a paucity of case law applying the evidentiary rule to emails, but one federal court, applying identical Federal Rule of Evidence 901(a) and (b)(4), found that a district court had not abused its discretion in admitting e-mail evidence by applying Federal Rule 901(b)(4), utilizing characteristic evidence such as: (1) consistency with the e-mail address on another e-mail sent by the defendant; (2) the author’s awareness through the e-mail of the details of defendant’s conduct; (3) the e-mail’s inclusion of similar requests that the defendant had made by phone during the time period; and (4) the e-mail’s reference to the author by the defendant’s nickname. United States v. Siddiqui, 235 F.3d 1318, 1322-23 (11th Cir.2000), cert. denied, 533 U.S. 940, *216121 S.Ct. 2573, 150 L.Ed.2d 737 (2001).5

Distinctive internal characteristics have also served to authenticate documents in other contexts. For example, typewritten documents found in a briefcase belonging to an alleged conspirator of a murder defendant were authenticated by their contents, which included specific details about the alarm code and gate code to the victim’s house, an outline of the murder-plot, and post-crime events and actions that tended to connect the defendant with the murder. See Angleton v. State, 955 S.W.2d 655, 658 (Tex.App.-Houston [14th Dist.] 1997), rev’d on other grounds, 971 S.W.2d 65 (Tex.Crim.App.1998). Documents found in trash discarded outside a drug defendant’s home were also authenticated by characteristic evidence, such as the defendant’s address found on the documents. See United States v. Baker, 855 F.2d 1353, 1359 (8th Cir.1988), cert. denied, 490 U.S. 1069, 109 S.Ct. 2072, 104 L.Ed.2d 636 (1989).

A review of the characteristic evidence concerning Massimo’s purported Exhibit 1 e-mail yields the following: (1) Exhibit 1 was sent to Taylor’s e-mail address shortly after she and Massimo had a physical altercation, and the e-mail referenced that altercation; (2) Taylor recognized Massimo’s e-mail account address since she had received e-mails from Massi-mo previously from this e-mail address; (3) Taylor testified that Massimo usually used the e-mail account babycol20@yahoo.com and that both she and Massimo utilized Yahoo personal accounts; (4) Taylor testified that only Massimo and a few other people knew about things discussed in State’s Exhibit 1; (5) Taylor testified that the contents of the e-mails and the way the e-mails were written were the way in which Massimo would communicate; (6) Kreshak testified that she witnessed Mas-simo send a similar life-threatening e-mail to Taylor using the same vulgarities which appeared in State’s Exhibit 1, albeit from a different e-mail address; and (7) Massimo told Kreshak that she was sending the threatening e-mail because she and Taylor did not like each other, which attitude is also reflected in State’s Exhibit 1. Based on all of the foregoing and reviewing the requirements of Rule 901 of the Texas Rules of Evidence, we cannot say that the trial court’s decision to admit State’s Exhibit 1 over a lack-of-authentication objection was so unreasonable as to constitute an abuse of discretion.

Likewise, the characteristic evidence concerning State’s Exhibit 6, purported e-mails sent from Massimo to Spar-by, yields the following: (1) the e-mails were signed “Amanda,” Massimo’s given name, and were sent from an e-mail address Taylor recognized as belonging to Massimo, babycol20@yahoo.com; (2) the e-mails exchanged between Massimo and Sparby are consistent with Sparby’s testimony that Massimo was not responding to her efforts to talk to her and was uncooperative; (3) the author of the e-mails knew the subject of the investigation, harassing e-mails, before Sparby revealed that to her; and (4) the November 16 e-mail threatened to report Sparby for harassment, and was sent the same day that Massimo appeared at the police station in person to file harassment charges against Sparby. While Massimo asserted defensively that someone was impersonating her *217and sending the e-mails on her behalf, she introduced no evidence to support this assertion, and Taylor specifically denied such action. Again, in reviewing the admission of evidence under Texas Rules of Evidence 901, and under the abuse of discretion standard, we cannot say that the trial court abused its discretion in admitting State’s Exhibit 6 over a lack-of-authentication objection.

Massimo further argues that State’s Exhibit 6 is hearsay and is not a statement against interest,6 because there is no exposure of the defendant to criminal liability and there is no showing or trustworthiness of the statements, citing Rose v. State, No. 2-02-272-CR, 2003 WL 22725583, at *3 (Tex.App.-Fort Worth Nov. 20, 2003, no pet.) (not designated for publication).

According to Texas Rule of Evidence 801, a statement is not hearsay if it is a written verbal expression offered against the party and is the party’s own statement in their individual capacity. Tex.R. Evid. 801(a), (e)(2)(A). State’s Exhibit 6 contains written verbal expressions for which there was evidence that the statements were made by Massimo as previously discussed, who was a party, and was offered against Massimo in the sense that Massimo would not admit she sent State’s Exhibits 1 and 6. It verified her email address, contained her language pattern, and demonstrated she knew about the harassing e-mails to Taylor before being told by Sparby who had only stated it was about “harassment”, the subject of her investigation. Further, the e-mail threats subject to prosecution were not contained in State’s Exhibit 6, but in State’s Exhibit 1. Therefore, the admission of State’s Exhibit 6, if erroneous, was harmless. Massi-mo’s points three and four are overruled.

Y. Legal and Factual Sufficiency

Massimo’s final two points argue that the evidence is legally and factually insufficient to support the jury’s verdict. In reviewing the legal sufficiency of the evidence to support a conviction, we view all the evidence in the light most favorable to the verdict in order to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Burden v. State, 55 S.W.3d 608, 612 (Tex.Crim.App.2001). 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. Jackson, 443 U.S. at 319, 99 S.Ct. at 2789. When performing a legal sufficiency review, we may not sit as a thirteenth juror, re-evaluating the weight and credibility of the evidence and, thus, substituting our judgment for that of the fact finder. Dewberry v. State, 4 S.W.3d 735, 740 (Tex.Crim.App. 1999), cert. denied, 529 U.S. 1131, 120 S.Ct. 2008, 146 L.Ed.2d 958 (2000).

In reviewing the factual sufficiency of the evidence to support a conviction, we are to view all the evidence in a neutral light, favoring neither party. See Zuniga v. State, No. 539-02, 2004 WL 840786, at *4 (Tex.Crim.App. Apr. 21, 2004). The only question to be answered in a factual sufficiency review is whether, considering the evidence in a neutral fight, the fact finder was rationally justified in finding guilt beyond a reasonable doubt. Id. at *7. There are two ways evidence may be factually insufficient: (1) the evidence supporting the verdict or judgment, considered by itself, is too weak to support the finding of guilt beyond a reasonable doubt; *218or (2) when there is evidence both supporting and contradicting the verdict or judgment, weighing all of the evidence, the contrary evidence is so strong that guilt cannot be proven beyond a reasonable doubt. Id. “This standard acknowledges that evidence of guilt can ‘preponderate’ in favor of conviction but still be insufficient to prove the elements of the crime beyond a reasonable doubt.” Id. In other words, evidence supporting a guilty finding can outweigh the contrary proof but still be insufficient to prove the elements of an offense beyond a reasonable doubt. Id.

In performing a factual sufficiency review, we are to give deference to the fact finder’s determinations, including determinations involving the credibility and demeanor of witnesses. Id. at *4; Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App. 1997). We may not substitute our judgment for that of the fact finder’s. Zuniga, 2004 WL 840786, at *4.

A proper factual sufficiency review requires an examination of all the evidence. Id. at *7, 9. An opinion addressing factual sufficiency must include a discussion of the most important and relevant evidence that supports the appellant’s complaint on appeal. Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App.2003).

In a single sentence not connected to any point on appeal, Massimo alleges that “[t]he prosecution did not prove that the offense alleged in the first paragraph of the information occurred in Denton County, Texas.” We will construe this to be a complaint connected to the factual and legal insufficiency points. While this compliant contains neither argument nor authority, if it is a complaint concerning venue, it was not addressed at the trial court and has been waived. Mosley v. State, 643 S.W.2d 212, 215-16 (Tex.App.Fort Worth 1982, no pet.). Further, the record reveals that Taylor received the email in Denton County. See Haigood v. State, 814 S.W.2d 262, 263 (Tex.App.-Austin 1991, pet. ref'd).

Having set forth and reviewed the relevant evidence in this case as it touches on Massimo’s legal and factual insufficiency complaints, we cannot say the evidence is either legally or factually insufficient, and overrule Massimo’s points five and six.

VI. Conclusion

Having overruled Massimo's points on appeal, we affirm the trial court’s judgment.

OPINION

FELIPE REYNA, Justice.

A jury convicted Kevin Michael Shea of indecency with a child. The jury found enhancement allegations “true” and assessed his punishment at ninety-nine years’ imprisonment. Shea contends in six issues that the court erred by: (1) denying his motion to dismiss premised on speedy trial grounds; (2) failing to promptly provide a limiting instruction when evidence of extraneous offenses was admitted; (3) admitting e-mails purportedly from Shea to the complainant because their authentic*101ity was not established; (4) refusing to charge the jury on misdemeanor assault as a lesser-ineluded offense; (5) overruling an objection to the State’s comment during punishment argument about Shea’s absence from the proceedings; and (6) appointing an attorney pro tem who was serving a federal probation at the time of trial. We will affirm.

The Attorney Pro Tem Was “Competent” To Represent The State

Shea contends in his sixth issue that the court abused its discretion by appointing as attorney pro tem an attorney who was serving a federal probation for misprision of a felony at the time of trial. Because Shea presented no evidence that the attorney pro tern’s license had been suspended or that he was not otherwise a “member in good standing” of the State Bar, we hold that no abuse of discretion is shown.

Article 2.07(a) of the Code of Criminal Procedure provides:

Whenever an attorney for the state is disqualified to act in any case or proceeding, is absent from the county or district, or is otherwise unable to perform the duties of his office, or in any instance where there is no attorney for the state, the judge of the court in which he represents the state may appoint any competent attorney to perform the duties of the office during the absence or disqualification of the attorney for the state.

Tex.Code CRIM. PROC. Ann. art. 2.07(a) (Vernon 2005).

When the appointment of an attorney pro tem is necessary under article 2.07, the decision of whom to appoint lies within the discretion of the trial court. See Loshe v. State, 160 Tex.Crim. 561, 272 S.W.2d 517, 520 (1954); Davis v. State, 840 S.W.2d 480, 487 (Tex.App.-Tyler 1992, pet. ref'd); State ex rel. Sherrod v. Carey, 790 S.W.2d 705, 709 (Tex.App.-Amarillo 1990, orig. proceeding). The only limitation imposed by the statute is that the court appoint a “competent attorney” to serve. Tex.Code CRIM. PROC. Ann. art. 2.07(a). However, the statute does not define that term.

We begin with the language of the statute. Sanchez v. State, 138 S.W.3d 324, 325 (Tex.Crim.App.2004). We may use a dictionary to assist in this endeavor. See id. at 325-26; Searcy v. State, 115 S.W.3d 628, 631 (Tex.App.-Waco 2003, no pet.). Webster’s defines the term “competent” to mean “legally qualified or adequate.” Merriamr-Webster’s Collegiate Dictionary 234-35 (10th ed.1993).

Section 81.102 of the State Bar Act provides that only members of the State Bar may practice law in this state, with some exceptions not applicable here. See Tex. Gov’t Code Ann. § 81.102 (Vernon 2005). The State Bar Rules define a “member in good standing” as “a member of the State Bar who is not in default in payment of dues and who is not under suspension from practice.” Tex. State BaR R. art. 1(6), reprinted in Tex. Gov’t Code Ann., tit. 2, subtit. G app (Vernon 2005).

According to the State Bar Rules, a member may practice law if he or she is not in default of payment of membership fees or other authorized assessments and if he or she has complied with the minimum continuing education requirements of the State Bar Rules. See Tex. State BaR R. art. Ill, §§ 5, 8, art. XII, § 8.

Shea does not contend that the attorney pro tem had failed to comply with these requirements. Rather, Shea contends that the attorney was disqualified because of his federal probation for misprision of a felony. However, Shea presented no evi*102dence to the trial court regarding the status of the attorney pro tern’s membership with the State Bar. He argued only that the attorney should not be allowed to prosecute the case because he was on federal probation.

Because Shea presented no evidence that the attorney pro tern’s license had been suspended or that he was not otherwise a “member in good standing” of the State Bar, we cannot say that the court abused its discretion by overruling Shea’s objection to the appointment of the attorney pro tern in his case. Thus, we overrule his sixth issue.

Shea Was Not Denied His Right To A Speedy Trial

Shea contends in his first issue that he was denied his constitutional right to a speedy trial. Because Shea did not assert his speedy trial in a timely fashion and has not shown that his defense was prejudiced by the delay, we will overrule this issue.

We balance four non-exclusive factors when considering a speedy trial claim: (1) the length of the delay; (2) the reasons for the delay; (3) the timeliness of the defendant’s assertion of his right to a speedy trial; and (4) any prejudice to the defendant caused by the delay. Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 2192, 33 L.Ed.2d 101 (1972); Shaw v. State, 117 S.W.3d 883, 888-89 (Tex.Crim.App.2003).

The Supreme Court has described the first factor as “a triggering mechanism” for consideration of the remaining factors. Barker, 407 U.S. at 530, 92 S.Ct. at 2192; Shaw, 117 S.W.3d at 889. The State concedes that the 42-month1 delay in Shea’s case is presumptively prejudicial. Accordingly, we consider the remaining factors.

Shea’s trial was delayed for several reasons. He was arrested on the charge in December 1998 and released on bond the same day. The indictment was presented in February 1999. Shea filed continuance motions which were granted in May 1999 and November 1999. The court’s docket sheet indicates that the matter was called on a monthly basis beginning in March 1999 and that the first time Shea announced “ready” for trial was February 2000. From April 2000 until the trial in June 2002, Shea’s case was passed on six occasions because other (presumably older) cases were heard.

During the hearing on Shea’s speedy trial claim, the State cited an overcrowded docket and Shea’s continuance motions in this and a companion case as reasons for the delay. These are the same factors recited by the prosecution in Shaw. 117 S.W.3d at 889. And as the Court of Criminal Appeals concluded in that case, we too conclude that Shea’s continuances account for only “several months” of the 42-month delay. Id. Conversely, “a crowded court docket is not a valid reason for delay.” Id. at 890. Thus, this factor “weighs in favor of finding a violation of appellant’s right to a speedy trial.” Id.

Shea made his first and only speedy trial claim on the day of trial. “In view of the lengthy delay here, during most of which appellant quietly acquiesced, this factor weighs very heavily against finding a violation of his right to a speedy trial.” Id.

*103The right to a speedy trial was designed: (1) to prevent oppressive pretrial incarceration; (2) to minimize anxiety and concern of the defendant; and (3) to limit the possibility that the defense will be impaired. Barker, 407 U.S. at 532, 92 S.Ct. at 2193; Shaw, 117 S.W.3d at 890. Of these, “the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system.” Id.

Shea concedes that the issue of oppressive pretrial incarceration does not apply because he was on bond before trial. He notes that his motion to dismiss on speedy trial grounds alleges that the delay has caused him “undue anxiety, concern, and is oppressive to [him].” However, Shea presented no evidence at the hearing on the motion to support this assertion. Cf. Shaw, 117 S.W.3d at 890 (“appellant offered no evidence to the trial court that the delay had caused him any unusual anxiety or concern, ie., any anxiety or concern beyond the level normally associated with being charged with a felony sexual crime”).

Thus, Shea focuses on the third interest that the right to a speedy trial was designed to protect — limiting the possibility that the defense will be impaired. Barker, 407 U.S. at 532, 92 S.Ct. at 2193; Shaw, 117 S.W.3d at 890. Shea contends that his defense was impaired by the delay because his step-daughter had moved to another state at the time of trial and was unavailable to testify. At the speedy trial hearing, Shea offered no evidence of what the content of his step-daughter’s testimony would be, but he contends in his brief, “Any reasonable person would conclude that [her] testimony would have been extremely helpful to the trier of fact in determining guilt or innocence in this case.”

To establish prejudice because of an unavailable witness, a defendant must show that “the witness[ ][is] unavailable, that [her] testimony might be material and relevant to his case, and that he has exercised due diligence in his attempt to find [her] and produce [her] for trial.” Meyer v. State, 27 S.W.3d 644, 650 (Tex.App.-Waco 2000, pet. ref'd) (quoting Harris v. State, 489 S.W.2d 303, 308 (Tex.Crim.App.1973)); accord Ervin v. State, 125 S.W.3d 542, 548 (Tex.App.-Houston [1st Dist.] 2002, no pet.). Shea’s unsubstantiated assertion that his step-daughter’s testimony “would have been extremely helpful” does not satisfy this test. See Harris, 489 S.W.2d at 308-09; Ervin, 125 S.W.3d at 548-549; Meyer, 27 S.W.3d at 650. Accordingly, this factor weighs against a finding of a speedy trial violation.

The 42-month delay and the reasons for the delay weigh in favor of a finding that Shea’s right to a speedy trial was denied. Conversely, Shea’s delay in asserting his right to a speedy trial and the lack of evidence that he was prejudiced by the delay weigh against such a finding. Under these circumstances, we cannot say that Shea’ right to a speedy trial was violated by the delay. Accordingly, we overrule Shea’s first issue.

The Trial Court Did Not Abuse Its Discretion By Failing To Give A Limiting Instruction Because The Acts Which The Parties Consider To Be “Extraneous” Were Not So Under The Indictment

Shea contends in his second issue that the court abused its discretion by failing to provide a limiting instruction when the State offered evidence of what the parties consider to be extraneous offenses.2 However, because each of the *104purported “extraneous” acts could have been prosecuted under the indictment, they were not extraneous, and no limiting instruction was required.

“An extraneous offense is defined as any act of misconduct, whether resulting in prosecution or not, that is not shown in the charging papers.” Rankin v. State, 953 S.W.2d 740, 741 (Tex.Crim.App.1996); Brown v. State, 6 S.W.3d 571, 575 n. 2 (Tex.App.-Tyler 1999, pet. ref'd); accord Rodriguez v. State, 104 S.W.3d 87, 91 (Tex.Crim.App.2003). “[T]he ‘on or about’ language of an indictment allows the State to prove a date other than the one alleged in the indictment as long as the date is anterior to the presentment of the indictment and within the statutory limitation period.” Sledge v. State, 953 S.W.2d 253, 256 (Tex.Crim.App.1997); accord Rodriguez, 104 S.W.3d at 91.

Here, the indictment alleges that Shea committed the offense of indecency with a child “on or about” June 10, 1998, “by touching the genitals and/or breast” of the complainant. The “extraneous” acts in question were two prior occasions when Shea touched the complainant’s breast, both of which occurred in 1996.

The statute of limitations for indecency with a child runs for ten years after the child’s 18th birthday. See Tex.Code Grim. PROC. Ann. art. 12.01(5)(A) (Vernon 2005). Both of the supposed “extraneous” acts occurred before the presentment of Shea’s indictment and within the statutory limitations period. Therefore, they are not “extraneous” offenses.3 See Rodriguez, 104 S.W.3d at 91; Sledge, 953 S.W.2d at 255-56; Rankin, 953 S.W.2d at 741; Brown, 6 S.W.3d at 575-76. Accordingly, no limiting instruction was required when the evidence was admitted. Thus, we overrule Shea’s second issue.

The Complainant Adequately Authenticated Shea’s Email Communications

Shea contends in his third issue that the court abused its discretion by admitting printed copies of a series of e-mail communications purportedly from Shea to the complainant because the e-mails were not properly authenticated.

We review a trial court’s evi-dentiary rulings under an abuse-of-discretion standard. Sauceda v. State, 129 S.W.3d 116, 120 (Tex.Crim.App.2004). The issue of authentication “arises whenever the relevancy of any evidence depends upon its identity, source, or connection with a particular person, place, thing, or event.” Kephart v. State, 875 S.W.2d 319, 321 (Tex.Crim.App.1994) (per curiam) (quoting 2 Steven Goode et al., Guide to the Texas Rules of Evidence § 901.1 (2d ed.1993)), overruled on other grounds, Angleton v. State, 971 S.W.2d 65, 69 (Tex.Crim.App.1998).

Rule of Evidence 901(b) provides several illustrations of how authentication can be established. Authentication may be established by testimony from a witness with knowledge that the document is what it is claimed to be. Tex.R. Evid. 901(b)(1); Wood v. State, 18 S.W.3d 642, 647 (Tex.Crim.App.2000); Guidry v. State, 121 S.W.3d 849, 851-52 (Tex.App.-Beaumont 2003, no pet.). Authentication may also be *105established by “[a]ppearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances.” Tex.R. Evid. 901(b)(4); Wood, 18 S.W.3d at 647; Massimo v. State, 144 S.W.3d 210, 215 (Tex.App.-Fort Worth 2004, no pet.).

The complainant testified that she was familiar with Shea’s e-mail address and that she had received the six e-mails in question from Shea. Thus, her testimony authenticates the e-mails. See Tex.R. Evid. 901(b)(1); Wood, 18 S.W.3d at 647; Guidry, 121 S.W.3d at 851-52.

The Fort Worth court has recently addressed the authentication of e-mail communications in terms of the distinctive characteristics of such communications. In Massimo, that court relied on a federal decision to enumerate several characteristics to consider when determining whether an e-mail has been properly authenticated. Massimo, 144 S.W.3d at 215-16 (citing U.S. v. Siddiqui, 235 F.3d 1318, 1322-23 (11th Cir.2000)). Those characteristics include: “(1) consistency with the e-mail address on another e-mail sent by the defendant; (2) the author’s awareness through the e-mail of the details of defendant’s conduct; (3) the e-mail’s inclusion of similar requests that the defendant had made by phone during the time period; and (4) the e-mail’s reference to the author by the defendant’s nickname.” Id.

The six e-mails in question have several of these characteristics. They were sent to the complainant from two different e-mail addresses. The complainant testified that she came to know Shea’s e-mail address because he would call to confirm that she had received an e-mail from him. The first three e-mails bore this address. In the fourth e-mail, Shea asked the complainant to no longer use the former address but to use the new address from which he had sent the fourth e-mail. The latter three e-mails bore this new address. In addition, Shea himself offered in evidence eight e-mails from the complainant to him at this new address.

Two of the e-mails offered by the State make reference to Shea’s occupation as a furniture maker. In one of the e-mails, Shea commented that he liked the complainant’s locker number. She explained in her testimony that this comment was significant because her locker number had the numerals “22” in it and Shea is twenty-two years older than she.

The complainant testified that the content of the e-mails was similar to conversations she had had with Shea over the telephone. Four of the e-mails were signed “Kev.”

For these reasons, the court did not abuse its discretion by admitting the emails over Shea’s objection to lack of authentication. See Massimo, 144 S.W.3d at 216-17. Accordingly, we overrule Shea’s third point.

Misdemeanor Assault By Offensive Or Provocative Contact Is Not A Lesser-included Offense Of Indecency With A Child

Shea contends in his fourth issue that the court erred by failing to charge the jury on misdemeanor assault by offensive or provocative contact as a lesser-included offense of indecency with a child. Because these offenses have distinctive elements, we disagree.

A jury charge on a lesser-included offense is required if (1) the lesser-included offense is included within the proof necessary to establish the offense charged; and (2) some evidence exists in the record that if the defendant is guilty, he is guilty of only the lesser offense. Hampton v. State, 109 S.W.3d 437, 440 (Tex.Crim.App.2003). Article 37.09 defines when a lesser *106offense is included within the proof necessary to establish the offense charged. See TexCode CRiM. Prog. Ann. art. 37.09 (Vernon 1981).

As pertinent to this case, article 37.09 provides that an offense is a lesser-included offense if:

• “it is established by proof of the same or less than all the facts required to establish the commission of the offense charged;” or

• “it differs from the offense charged only in the respect that a less culpable mental state suffices to establish its commission.”

TexCode CRiM. Peoc. Ann. art. 37.09(1), (3).

Shea contends that assault by offensive or provocative touching meets the latter definition of a lesser-included offense because “the culpability of the mental state of assault [is] less than that of indecency with a child.” Although this may be true in terms of moral or social culpability, it is not a true statement insofar as the legal definitions of these offenses are concerned.

As Shea also observes in his brief, “The mental states required of the two crimes differ.” It is the differences in the requisite elements which lead to the conclusion that assault by offensive or provocative contact is not a lesser-included offense of indecency with a child by contact.

Under the statute applicable to Shea’s case, a person commits the offense of indecency with a child by engaging in “sexual contact” with the child. See Act of May 29, 1993, Act of May 29,. 1993, 73rd Leg., R.S., ch. 900, § 1.01, sec. 21.11(a)(1), 1993 Tex. Gen. Laws 3586, 3616 (amended 2001) (current version at Tex. Pen.Code Ann. § 21.11(a)(1) (Vernon 2003)). The former statute defined the term “sexual contact” to be any proscribed touching done “with the intent to arouse or gratify the sexual desire of any person.” Id., sec. 21.01(2), 1993 Tex. Gen. Laws 3586, 3615 (amended 2001) (current version at Tex. Pen.Code Ann. § 21.11(c) (Vernon 2003)).

Conversely, the offense of assault by offensive or provocative contact is committed when a person “knows or should reasonably believe that the other will regard the contact as offensive or provocative.” Tex. Pen.Code Ann. § 22.01(a)(3) (Vernon 2003).

The indecency charge required the State to prove that Shea acted with intent to arouse or gratify the sexual desire of some person, not that he knew or should have reasonably believed that the complainant would regard his touching as offensive or provocative. Even though the same evidence may be probative of both elements, they are distinctive elements. See Ramos v. State, 981 S.W.2d 700, 701 (Tex.App.Houston [1st Dist.] 1998, no pet.); accord Stafford v. State, No. 02-02-00477-CR, 2003 WL 22923034, at *2, 2003 Tex.App. LEXIS 10439, at *7-8 (Tex.App.-Fort Worth Dec. 11, 2003, pet. ref'd) (mem.op.).

The proof required to establish assault by offensive or provocative contact is different, not less, than that required to prove indecency with a child by contact. Thus, the misdemeanor assault charge is not a lesser-included offense. See Tex. Code CRiM. PROc. Ann. art. 37.09(1); Ramos, 981 S.W.2d at 701; see also Stafford, 2003 WL 22923034, at *2, 2003 Tex.App. LEXIS 10439, at *7-8. Accordingly, we overrule Shea’s fourth issue.

The Prosecutor Did Not Comment On Shea’s Failure To Testify During The Punishment Argument

Shea contends in his fifth issue that the prosecutor impermissibly commented on his failure to testify by mentioning Shea’s absence from the courtroom during the punishment argument. Be*107cause the prosecutor did not comment on Shea’s failure to testify, we disagree.

It is well settled that a prosecutor’s comment amounts to a comment on a defendant’s failure to testify only if the prosecutor manifestly intends the comment to be, or the comment is of such character that a typical jury would naturally and necessarily take it to be, a comment on the defendant’s failure to testify. It is not sufficient that the comment might be construed as an implied or indirect allusion to the defendant’s failure to testify.

Wead v. State, 129 S.W.3d 126, 130 (Tex.Crim.App.2004). Because a defendant’s Fifth Amendment privilege against self-incrimination continues during the punishment phase of trial, this prohibition applies to both the guilt-innocence and the punishment phases. See Mitchell v. U.S., 526 U.S. 314, 325-27, 119 S.Ct. 1307, 1313-14, 143 L.Ed.2d 424 (1999); Carroll v. State, 42 S.W.3d 129, 131-32 (Tex.Crim.App.2001).

During jury deliberations at the conclusion of the guilt-innocence phase, Shea left the premises of the courthouse without telling anyone. After the jury returned the guilty verdict, the court conducted a hearing outside the jury’s presence to determine whether Shea had voluntarily absented himself from the proceedings. See Tex.Code CRim. PROC. Ann. art. 33.03 (Vernon 1989). The prosecutor elicited testimony from Shea’s girlfriend that Shea and she had come to court together that morning in her car, that Shea had a set of keys to her car, and that her car was no longer in the parking lot. The court found that Shea had voluntarily absented himself from the proceedings.

The punishment phase proceeded that afternoon with the State calling a records custodian and a fingerprint expert to prove-up Shea’s prior convictions. The next morning Shea’s counsel made an oral motion in limine asking that the prosecutor be instructed to approach the bench before making any reference to Shea’s absence from the proceedings. The court denied this request.

During punishment argument, the prosecutor made the following statement:

We don’t like everything about all of our legal system. We shouldn’t. We tug and pull against it, and that is healthy, but you respect it enough to come up and show up each day. There is not enough respect here to show up for you. There is not enough respect here to show up, to show up for you to finish your work.

This statement is not “of such character that a typical jury would naturally and necessarily take it to be, a comment on the defendant’s failure to testify.” See Wead, 129 S.W.3d at 130. Rather, it is a comment on the defendant’s failure to return for the punishment hearing. At most, it “might be construed as an implied or indirect allusion to the defendant’s failure to testify.” Id. Thus, it does not constitute an impermissible comment on Shea’s failure to testify. Accordingly, we overrule Shea’s fifth issue.

The judgment is affirmed.

OPINION

KEASLER, J.,

delivered the opinion of the Court, in which

MEYERS, PRICE, WOMACK, HERVEY, HOLCOMB, and COCHRAN JJ., joined.

In December 2003, a jury convicted Marcus Druery of a capital murder committed on October 31, 2002.1 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 judge sentenced Druery to death.2 Direct appeal to this Court is automatic.3 After reviewing Druery’s twenty-one points of error, we find them to be without merit. Accordingly, we affirm the trial court’s judgment and sentence of death.

*496Statement of Facts

On October 30, 2002, Druery went to Skyyler Browne’s apartment on the Texas State Technical College campus in Waco where both were students. Browne was commonly known by his nickname “Rome.” Druery asked Rome to travel with him to Bryan; Rome hesitated but eventually agreed to go. Rome, who was known to have sold marijuana, took his cell phone, $400 to $500, his gun, and some marijuana. No one at the school ever saw him again. Druery later told a Texas Ranger that, after he and Rome had traveled from Waco to Bryan, they partied into the night, but Rome wanted to go home. Druery recounted to the Ranger that Rome called a girlfriend, and the girlfriend picked him up from the Contiki Club in an orange Cadillac. Law enforcement, however, was never able to locate an orange Cadillac.

Joquisha Pitts and Marcus Harris told a different story. Pitts was Druery’s former girlfriend, and Harris was Druery’s younger friend who was still in high school. Pitts recounted at trial that she had known Rome for only a couple of days when she witnessed his murder. She accompanied Druery and Rome to the Contiki Club, and on the way, the group picked up Harris, as well as some ecstasy tablets and some embalming fluid, which is put on cigarettes and smoked to produce a high. Harris recounted at trial that this was his first meeting with Rome. Around 1:00 to 1:30 a.m., at Druery’s suggestion, Druery, Rome, Pitts, and Harris left the Contiki Club to go to rural property owned by the Druery family. Pitts drove Druery’s car as Druery navigated because she had never been there before. Neither Pitts nor Harris was aware of Druery’s plans.

During the drive to the country, Druery claimed that someone was following them, and he repeatedly asked Rome for his gun so he could shoot whomever it was. Rome refused. Once at the property, Druery unlocked the gate and drove the group the rest of the way to a stock pond. Using the vehicle’s headlights for illumination, each member of the group took turns shooting Rome’s gun at bottles they had thrown into the water. At this time, Druery called Pitts to the ear and told her he was going to kill Rome, saying he wanted Rome’s “stuff.” Pitts reminded Druery that Druery had a two-year-old son, and she ultimately believed that Druery was “just playing.”

After he shot the gun, Druery claimed that the ammunition had run out, and he returned to the driver’s seat of the car. Pitts saw that Druery was taking bullets from the car’s console, wiping them clean with a rag, and placing them in the pistol’s magazine. Druery then called Harris to the vehicle, telling him that he planned to shoot Rome, but Harris believed that Druery was “tripping” on embalming fluid that he had smoked. Druery then ordered both Pitts and Harris to sit in the car.

Standing near the pond, Rome pulled his jacket or a hood over his head to block the wind as he attempted to light a pipe or cigar filled with marijuana. Druery skulked toward Rome under the cover of darkness, held the gun within six inches of Rome’s head, and fired. As Rome’s body fell, Druery fired a second shot into Rome’s neck, and then he fired a third shot into Rome’s body as it lay on the ground. Pitts and Harris began to cry and scream, and both saw Druery kneel over Rome’s body. Druery returned to the vehicle with Rome’s cellular phone, money, marijuana, and gun. He attempted to calm his hysterical companions by giving each forty dollars.

Soon thereafter, Druery obtained some gasoline (perhaps with Harris’s assistance) and poured it on Rome’s body. He set it ablaze, and the three left as the body *497burned. During the drive, Druery instructed Pitts and Harris on how to respond to questions about Rome. He told them to say that Rome’s girlfriend picked him up in an orange Cadillac to take him to get his sister in Washington D.C. and that they didn’t see him again. The next day, Druery returned to the pond with Pitts and two others, burned the body a second time, and threw the body into the pond. Later, Harris assisted Druery in disposing of the murder weapon.

Pitts eventually went to the police and told them that she was scared and wanted to get it off her chest. Harris told authorities that he thought he would die because he believed Druery would not want to leave any witnesses to the killing.

Accomplice Witness Testimony

Druery’s points of error one through nine are related. In points of error one and three, Druery asserts that the evidence is insufficient to prove that he committed the underlying predicate felony offense of robbery during the course of the commission of murder. He argues that the only evidence he committed robbery came from two witnesses, Pitts and Harris, whom he maintains were accomplice witnesses as a matter of law. He then reasons that because of the witnesses’ status as accomplices, the accomplice witness rule,4 which requires corroboration of an accomplice’s testimony by other non-accomplice evidence that tends to connect the defendant to the charged offense, also requires that the testimony of Pitts and Harris concerning the underlying robbery be corroborated. Druery contends that such corroborating evidence concerning the underlying robbery is wholly lacking.

In point of error two, Druery urges us to overrule our previous holding in Holla-day v. State5 that the accomplice witness rule does not require the non-accomplice testimony to corroborate a defendant’s connection to the specific element that raises the offense from murder to capital murder. Here, the specific element is the underlying robbery, which Druery claims in points of error one and three is not corroborated by non-accomplice witness evidence. In points of error four and five, Druery contends that the trial judge erred when he refused to instruct the jury that Pitts and Harris were accomplices as a matter of law.

In points of error six and seven, Druery contends that the trial judge’s instruction to the jury regarding whether Pitts and Harris were accomplice witnesses as a factual matter was constitutionally inadequate. He argues that the instruction failed to provide sufficient guidance to allow the jury to reliably ascertain the witnesses’ status. And in points of error eight and nine, Druery argues that the trial judge’s instruction allowing the jury to determine whether Pitts and Harris were accomplice witnesses as a factual matter constituted an improper comment on the weight of the evidence.

All of these claims rest upon the threshold issue of whether Pitts and Hams were accomplices — either as a matter of law or of fact — to the capital murder or a lesser-included offense of the capital murder. If they are not accomplices, then there is no error in the trial judge’s refusal to instruct the jury that the witnesses were accomplices as a matter of law. Also, if Pitts and Harris are not accomplices, then the trial judge’s instruction regarding accomplice witnesses as a matter of fact was superfluous and did not harm Druery. Indeed, such an instruction could only *498benefit him because it allowed the jury to require corroboration of the witnesses’ testimony if it believed that the witnesses were accomplices to Rome’s murder.

Similarly, if Pitts and Harris are not accomplices, then the superfluous accomplice witness instruction as a factual matter in this case cannot be considered an improper comment on the weight of the evidence. Again, the instruction could only benefit Druery by requiring additional corroborating evidence that would otherwise not be required. Last, if Pitts and Harris are not accomplices, then a review to determine whether non-accomplice evidence sufficiently corroborated their testimony is not applicable, and there is no need to review whether this Court’s decision in Holladay concerning accomplice witness corroboration of the underlying predicate felony should be overturned. We find that Pitts and Harris were neither accomplices as a matter of law nor accomplices as a matter of fact.

Texas law requires that, before a conviction may rest upon an accomplice witness’s testimony, that testimony must be corroborated by independent evidence tending to connect the accused with the crime.6 This accomplice witness rule creates a statutorily imposed review and is not derived from federal or state constitutional principles that define the legal and factual sufficiency standards.7 An accomplice is someone who participates with the defendant before, during, or after the commission of a crime and acts with the required culpable mental state.8 To be considered an accomplice witness, the witness’s participation with the defendant must have involved some affirmative act that promotes the commission of the offense with which the defendant is charged.9 A witness is not an accomplice witness merely because he or she knew of the offense and did not disclose it, or even if he or she concealed it.10 In addition, the witness’s mere presence at the scene of the crime does not render that witness an accomplice witness.11 And complicity with an accused in the commission of another offense apart from the charged offense does not make that witness’s testimony that of an accomplice witness.12 In short, if the witness cannot be prosecuted for the offense with which the defendant is charged, or a lesser-included offense of that charge, the witness is not an accomplice witness as a matter of law.13

A trial judge, therefore, has no duty to instruct the jury that a witness is an accomplice witness as a matter of law unless there exists no doubt that the witness is an accomplice.14 For instance, the instruction is appropriate when the witness is charged with the same offense as the defendant or a lesser-included offense or when the evidence clearly shows that the witness could have been so charged.15 If the evidence presented by the parties is conflicting and it remains unclear whether the witness is an accomplice, the trial *499judge should allow the jury to decide whether the inculpatory witness is an accomplice witness as a matter of fact under instructions defining the term “accomplice.” 16 However, as with an accomplice as a matter of law, there must still be some evidence of an affirmative act on the part of the witness to assist in the commission of the charged offense before such an instruction is required.17

Here, neither Pitts nor Harris was an accomplice as a matter of law or as a matter of fact. Neither witness was indicted for the capital murder or a lesser-included offense of the capital murder, and the evidence does not show that the witnesses could have been so charged. A review of the record reveals that testimony was elicited regarding the actions of Pitts and Harris before, during, and immediately after the murder as follows: (1) when Druery, Pitts, Harris, and Rome left the Contiki Club around 1:00 a.m., Druery decided to go to his father’s property; (2) although Pitts drove the car, she had never been to this property before; Druery gave her directions; (3) when the group began the drive to the country, Pitts had no idea what Druery was going to do; (4) before he shot Rome, Druery told Pitts that he was going to kill Rome; (5) Druery also told Harris, “Right now I’m going to kill this nigger, this dude”; (6) Pitts reminded Druery that he was responsible for taking care of his two-year-old son, but Druery responded by stating, “So, I want his stuff”; (7) Pitts thought to herself that Druery was “just playing” when he threatened to kill Rome; (8) Harris thought that Druery was “tripping” on the embalming fluid that he had smoked; (9) Druery waited until Rome had his jacket over his head to block the wind before putting the gun about six inches from Rome’s head and shooting him; (10) immediately after he killed Rome, Druery went through Rome’s pockets and came back to the vehicle with Rome’s cell phone, gun, marijuana, and money; (11) Pitts started crying after she witnessed the shooting; (12) Druery told Pitts, immediately after shooting Rome, that he “shouldn’t have done this in front of us”; (13) immediately after he murdered Rome, Druery asked Pitts and Harris if they were all right and attempted to calm them down; (14) Harris lied to Druery and told him that he was all right; (15) Harris thought he was going to die because he believed that Druery would not want to leave any witnesses to the murder; (16) Druery asked Pitts and Harris if they wanted any money, and neither Pitts nor Harris replied; Druery gave forty dollars to each of them; (17) after the murder, Druery told Angela Minor, an acquaintance of his, “I killed somebody”; Druery explained to Minor that he and the others were out at the trailer where he used to live and they were shooting a gun; he stated that he made two people that were with him go back to the car and sit; he then relayed that while Rome had his back turned to him, he shot Rome; he said that the two people with him when he shot Rome were Pitts and Harris; (18) after the murder, Druery told Lakeisha Green, another acquaintance of his, that Rome had been trying to light a cigarette and had placed his jacket over his head to block the wind; at that time, Druery stated, he called out, “Say Rome,” and Rome replied “What?” to him; Druery then shot Rome in the head; Druery also told Green that when he shot Rome, Pitts and Harris ran to the car screaming.

This evidence does not indicate that either Pitts or Harris performed any affirmative act to assist in the commission of *500the capital murder or a lesser-included offense of the capital murder, so, it does not show that either witness was an accomplice as a matter of law or an accomplice as a matter of fact. Still, Druery points to several facts that he believes indicate that Pitts and Harris were accomplices: (1) both Pitts and Harris were present prior to and during the murder; (2) neither warned Rome that Druery had said that he intended to kill Rome; (3) there was evidence that both witnesses may have distracted Rome’s attention before the shooting; (4) Harris assisted in the disposal of the body and the gun after the murder; and (5) Pitts and Harris received forty dollars each after the murder. Apart from the allegation that the witnesses may have distracted Rome, none of these acts rise to the level of an affirmative act to assist in the commission of the capital murder or a lesser-included offense of the capital murder.

The mere presence of Pitts and Harris at the scene of the crime does not render either an accomplice witness, and neither Pitts nor Harris is an accomplice witness merely because he or she knew of the planned offense but did not disclose it.18 More importantly, the testimony itself reveals that neither Pitts nor Harris believed Druery was actually going to kill Rome. Pitts believed Druery was “just playing,” and Harris thought Druery was “tripping” on embalming fluid. Additionally, nothing in the record shows that either Pitts or Harris distracted Rome to help facilitate his murder. To the contrary, the record indicates that Druery later told Angela Minor that he made Pitts and Harris “go back to the car and sit” before shooting Rome in the head.

As for the argument that Harris assisted in the disposal of the body and the gun after the murder, we have previously held that merely assisting after the fact in the disposal of a body does not transform a witness into an accomplice witness in a prosecution for murder.19 The witness must still be susceptible to prosecution for the murder itself by having affirmatively assisted in committing the offense.20 This same logic applies to assisting Druery in disposing of the gun after the murder; the fact that Harris did so does not make him an accomplice witness to the capital murder. Finally, the fact that both Pitts and Harris received forty dollars after the murder does not transform either witness into an accomplice witness. The record shows that neither requested the money nor did either respond affirmatively when asked about wanting the money. It is reasonable to infer that Druery gave Pitts and Harris the money in an attempt to calm them after the murder because they were crying and screaming.

In short, none of the evidence presented at trial indicates that either Pitts or Harris was an accomplice as a matter of law or as a matter of fact. Therefore, we will not review their testimony through the lens of the accomplice witness rule to determine if sufficient non-accomplice corroborating evidence was introduced at trial. Likewise, Druery’s arguments concerning accomplice witness instructions given to or not given to the jury and concerning the application of the accomplice witness rule to the underlying predicate felony offense are inap-posite. Points of error one through nine are overruled.

Admission of Letter Into Evidence

In related points of error ten, eleven, and twelve, Druery challenges State’s Ex-*501Mbits 116A, 116B, and 116C, wMch were admitted into evidence by the State at pumshment to rebut Druery’s evidence of good character. ExMbit 116A is a letter purportedly written by Druery and Exhibit 116C is the letter’s envelope; Exhibit 116B is a copy of the letter and the envelope that was made before the original Exhibits 116A and 116C were damaged in the process of extracting latent finger prints from them. The letter contains admissions by Druery concerning his violent acts and indicates a lack of remorse for Rome’s murder.

In point of error eleven, Druery argues that the trial judge erred in admitting the exhibits because they were not sufficiently authenticated. In point of error ten, he alleges that the trial judge erred in admitting the exhibits because the chain of custody was broken, rendering the exhibits irrelevant. In point of error twelve, Druery claims that the trial judge erred in failing to instruct the jury that it must make a handwriting comparison to determine if the letter was written by him. We find that the exhibits were properly admitted into evidence and that the lack of an instruction to make a handwriting comparison was not error.

The letter in question was initially mailed from the Brazos County jail to Jamesia Idlebird, but was returned due to insufficient postage. The return address written on the envelope identifies Ronnie Taylor, another inmate at the jail, rather than Druery as the sender and lists the address for the jail as the sender’s address. By the time the letter was returned to the jail, Idlebird had been arrested and was also incarcerated there. The returned letter was intercepted by jail staff for security reasons because it was addressed from one inmate to another. Jail staff forwarded the letter to the jail admimstrator, who forwarded it to the chief deputy of the sheriffs department. The chief deputy then delivered the letter to Kenny Elliott, an investigator with the sheriffs office working on Druery’s case. Elliott received the letter the day after general voir dire had begun. Only Elliott testified at punishment regarding how the letter was intercepted.

The letter itself consists of five handwritten pages and five pages of attachments. The attachments are copies of the first page of the typewritten transcriptions of police interviews with LaKeisha Green, Charles Kennard, Marcus Harris, Joquisha Pitts, and Chasiti Hall. In the first handwritten page, the writer identifies himself as “Marky D,” Druery’s nickname, and identifies Green, Kennard, Harris, Pitts, and Hall as snitches. Each of these witnesses subsequently testified for the State at the guilt stage of the trial, and Idlebird testified as a State witness during punishment. The writer explains in the letter that he was forwarding only the first pages of the transcribed interviews because he had to study the remaining portions to prepare for trial. The writer also explains that he had to put a different name as the sender in the return address in an attempt to circumvent inspection by jail authorities.

A latent fingerprint examiner testified that eleven fingerprints on the exhibits belonged to Druery. These latent prints were located on three of the handwritten pages and one of the typewritten interview pages. The examiner also testified that four other latent fingerprints found on the letter did not match Druery’s fingerprints. Druery objected to the admission of the letter on the ground that it was not properly authenticated and on the ground that the chain of custody was not properly established. He did not request an instruction for the jury to conduct a handwriting comparison, nor did he object to the trial court’s failure to include an instruction re*502garding Texas Code of Criminal Procedure Article 38.27, which concerns evidence of handwriting.

A. Authentication

We first address Druery’s claim that State’s Exhibits 116A, 116B, and 116C were not properly authenticated and should not have been admitted into evidence. As the evidentiary rules state, “Preliminary questions concerning ... the admissibility of evidence shall be determined by the court21 [and] [w]hen the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition.”22

Whether a conditional fact has been proven is a question for the jury, and the trial judge’s role is limited to determining whether there is sufficient evidence to support such a finding.23 In other words, the trial judge should admit evidence that is relevant based upon a conditional fact only if there is sufficient evidence to support a jury finding that the conditional fact is true. Indeed, “[t]he requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what the proponent claims.”24 This authentication requirement can be satisfied by showing “Distinctive characteristics and the like: Appearance, contents, substance, internal patterns, or other distinctive characteristics, • taken in conjunction with circumstances.”25 The trial judge does not abuse his or her discretion in admitting evidence where he or she reasonably believes that a reasonable juror could find that the evidence has been authenticated or identified.26

The issue before us, then, is whether the trial judge abused his discretion by admitting the letter and its envelope into evidence. To resolve this issue, we must determine whether it was an abuse of discretion for the trial judge to find that sufficient evidence was presented to support a jury finding that Druery wrote the letter.27 We will affirm the trial judge’s decision as long as his or her ruling is within the zone of reasonable disagreement.28 Here, the evidence in question was properly authenticated because the letter and envelope contained sufficient distinctive internal characteristics to support a finding that Druery was the author of the letter.

First, the letter was returned to the Brazos County jail while Druery was an inmate there on or about November 4, 2003. Even though the envelope does not have a postmark and the letter itself is undated, it is reasonable to infer that it was mailed after February 7, 2003, the latest date indicated on the transcribed interview pages enclosed with the letter. Druery had remained in custody since his arrest date on November 14, 2002, and was *503in custody at the jail from the earliest possible date the letter could have been mailed until it was recovered. This evidence establishes that Druery was in a position to mail the letter from the jail.

Second, the writer of the letter identifies himself as Druery. The top of the first page of the handwritten portion of the letter states, “This is Marky D,” and the letter is closed on the last handwritten page, “Marky D a/k/a lil dip.” The evidence at trial showed that Druery is known as “Marky D.”

Third, the letter was sent to Idlebird, Druery’s cousin and a witness in his case. Fourth, the content of the letter identifies five witnesses, all of whom had given statements to the police and were going to testify for the State against Druery. The writer identifies all of these witnesses as snitches. Fifth, the letter includes the cover page of transcribed interviews with each of the witnesses the writer identifies as snitches. It is therefore reasonable to infer that Druery had access to these transcriptions. Sixth, the handwritten letter discusses facts known to Druery regarding his case, including statements that Pitts and Harris had witnessed the murder and talked with police. Seventh, the author writes that the return address had a different name than the true sender because the true sender was attempting to avoid having the letter read by jail staff. Eighth, eleven of Druery’s fingerprints were positively identified as being on the letter or on the attached transcriptions.

Druery did not present any evidence of tampering or other fraud regarding the letter. So while Druery is correct that a possibility does exist that another person knew and had access to all of this information as well as blank pages containing Druery’s fingerprints upon which to write the letter, it was reasonable for the trial judge to believe that a reasonable juror could find that the exhibit was what the State purported it to be — a letter written by Druery. The letter was properly authenticated, and the trial judge’s decision to admit the letter was not an abuse of discretion. Point of error eleven is overruled.

B. Chain of Custody

Next, Druery complains that the chain of custody for the exhibits was not established because Investigator Elliot did not personally seize the letter and envelope in question. He asserts that under the circumstances, there was no chain of custody connecting the writing of the letter to Druery.

A trial judge has great discretion in the admission of evidence at trial,29 and although the evidentiary rules do not specifically address proper chain of custody, they do state that identification for admissibility purposes is satisfied if the evidence is sufficient to support a finding that the matter in question is what its proponent claims.30 As stated above, there was sufficient evidence before the trial judge to support the finding that Druery authored the letter in question. Absent evidence of tampering or other fraud, which has not been presented here, problems in the chain of custody do not affect the admissibility of the evidence.31 Instead, such problems affect the weight *504that the fact-finder should give the evidence, which may be brought out and argued by the parties.32 Point of error ten is overruled.

C. Jury Instruction

Turning to Druery’s claim that the jury should have been instructed to make a handwriting comparison, Texas law provides, “It is competent to give evidence of handwriting by comparison, made by experts or by the jury. Proof by comparison only shall not be sufficient to establish the handwriting of a witness who denies his signature under oath.”33 Druery argues that the trial judge committed error when he did not charge the jury at punishment that it could compare the handwriting of the letter in question to the handwriting of other letters known to have been written by him in determining the authenticity of the letter.34 He reasons that without such an instruction, a reasonable juror will merely assume that the letter was written by him. Druery concedes that he did not request an instruction regarding jury comparison or object to the lack of such an instruction. He argues, however, that the lack of such an instruction caused him to suffer egregious harm.35 We disagree.

In reviewing charge error, we must first determine whether error exists.36 If we find error, we must then determine whether the error caused sufficient harm to require reversal.37 As we have stated, the degree of harm necessary for reversal depends upon whether the error was preserved.38 Error properly preserved by an objection to the charge will require reversal as long as the error is not harmless.39 We have interpreted this to mean that any harm, regardless of degree, is sufficient to require reversal.40 But when the charging error is not preserved, a greater degree of harm is required, and this standard of harm is described as egregious harm.41 Errors that result in egregious harm are those affecting the “ ‘very basis of the case,’ ” those depriving “the defendant of a ‘valuable right,”’ or those that “‘vitally affect a defensive theory.’ ”42

Druery fails to demonstrate that there was any error at all in the omission of a charge concerning handwriting comparison. He never denied that he was the author of the letter, and we cannot say that the decision to not request such an instruction or to not object to the lack of such an instruction was not a matter of trial strategy. But even if we were to assume error in failing to instruct the jury to make a handwriting comparison, such error was not egregious. Druery does not explain how the omission of the instruction at issue harmed him other than to argue that this case was very close as to whether a life or death sentence was appropriate. But as the State points out, other instructions in the punishment charge served to *505instruct the jury as to its duty as fact-finder.

The jury was instructed, “You are the exclusive judges of facts proved, of the credibility of the witnesses, and the weight to be given their testimony[.]” The jury was additionally told, “You cannot consider any evidence of unadjudicat-ed extraneous crimes or bad acts other than the one charged in the indictment in this case for any purpose unless you find and believe beyond a reasonable doubt that the defendant committed such acts, if any.” These instructions served to guide the jury in its evaluation of the letter with regard to the chain of custody, the fingerprint evidence, and the contents of the letter itself. As we have stated, when a refused charge is adequately covered by the charge given, no harm is shown.43 Because Druery fails to demonstrate that the omission of the instruction was erroneous or that the omission, even if erroneous, constituted egregious harm, point of error twelve is overruled.

Instruction on Offense of Abuse of Corpse

In point of error thirteen, Druery complains that the trial judge erred when he refused Druery’s request to charge the jury on the offense of abuse of corpse. Druery concedes that abuse of corpse, while a less serious offense than capital murder, is not a lesser-included offense of capital murder.44 He was therefore not entitled to the instruction. Point of error thirteen is overruled.

Instruction on Lesser-included Offense of First-Degree Murder

In his fourteenth point of error, Druery complains that the trial court should have instructed the jury at guilt, sua sponte, on the lesser-included offense of first-degree murder. He argues that the failure to include the instruction amounted to fundamental error even though Druery, through counsel, unequivocally informed the trial court that the lesser-included instruction was not desired. We find that Druery is estopped from bringing this claim.

Texas law mandates that a trial court submit a charge to the jury setting forth “the law applicable to the case,”45 and as this Court has stated, “[An appellant] must object to the charge before he may be heard to complain on appeal about ‘errors claimed to have been committed in the charge, as well as errors claimed to have been committed by omissions therefrom or in failing to charge upon issues arising from the facts.’ ”46 On the other hand, this Court has stated that if no proper objection was made at trial to the jury charge, an appellant must claim that the alleged error was fundamental.47 An appellant will obtain a reversal only if the error was so egregious and created such harm that the he or she “has not had a fair and impartial trial—in short ‘egregious harm.’ ”48 We have noted, however, that “[i]f a party affirmatively seeks action by the trial court, that party cannot later *506contend that the action was error.”49 Indeed, “the law of invited error estops a party from making an appellate error of an action it induced.”50

Here, the record reveals that Druery, through counsel, affirmatively advised the trial judge that he did not desire a charge on the lesser-included offense of first-degree murder. At the charge conference, the following exchange took place:

THE COURT: Has the State had an adequate opportunity to review the proposed charge?

[STATE]: We have, Your Honor.

THE COURT: And are there any objections?

[STATE]: No, Your Honor.

THE COURT: I want to be sure the State is not requesting a lesser-included offense of murder.

[STATE]: That’s correct.

THE COURT: Very well. [Defense counsel], do you have any objections?

[DEFENSE]: Yes, Your Honor, I have [three] that I will memorialize Monday morning. I’m — oh, I’m sorry. I have no objections to the Court’s charge as presented to us at — at 12:40 today.

THE COURT: All right. Court will overrule those three objections [which concern an instruction on the use of illegally obtained evidence, an instruction on the lesser-included offense of abuse of corpse, and an instruction on accomplice as a matter of law rather than of fact] with the understanding that I expect you to memorialize those in writing on Monday before we begin. Are there any other objections?

[DEFENSE]: Not on behalf of Mr. Druery, Your Honor.

THE COURT: Be sure y’all are not asking for a lesser-included offense of murder.

[DEFENSE]: We are not, Your Honor.

In light of the above exchange, it is evident that Druery not only did not object to the omission of the lesser-included instruction on first-degree murder but that he affirmatively requested, after inquiry by the trial judge, that the lesser-included instruction not be given. Druery induced the alleged error of which he now complains. He may not now argue on appeal that the trial judge had a duty to sua sponte give the jury an instruction on the lesser-included offense of first-degree murder in the face of his specific request that the charge not be included. Because Druery is estopped from bringing this charge-error claim on appeal, we do not address whether the omission of and failure to sua sponte give the lesser-included instruction was erroneous or amounted to egregious harm.51 Point of error fourteen is overruled.

Future Dangerousness

Druery claims in his twenty-first point of error that the evidence presented at trial was legally insufficient to support the jury’s finding that he would be a continuing threat to society.52 The State has the burden of proving the punishment issue of future dangerousness beyond a reasonable doubt.53 In other words, the *507State has the burden of proving beyond a reasonable doubt that there is a probability that Druery would commit criminal acts of violence in the future, so as to constitute a continuing threat, whether in or out of prison.54 In its determination of the issue, the jury is entitled to consider all of the evidence presented at both the guilt and punishment stages of trial.55

Indeed, when determining whether a defendant will pose a continuing threat to society, a jury may consider a variety of factors.56 As we have said, these factors include, but are not limited to, the circumstances of the capital offense, including: the defendant’s state of mind and whether he was working alone or with other parties; the calculated nature of the defendant’s acts; the forethought and deliberateness exhibited by the crime’s execution; the existence and severity of prior crimes; the defendant’s age and personal circumstances at the time of the offense; whether the defendant was acting under duress or the domination of another at the time of the commission of the offense; psychiatric evidence; and character evidence.57 But the circumstances of the offense itself “can be among the most revealing evidence of future dangerousness and alone may be sufficient to support an affirmative answer to that special issue.”58 As an appellate court reviewing the jury’s finding, we must view all of the evidence before the jury in the light most favorable to its finding and determine whether, based on that evidence and reasonable inferences therefrom, a rational jury could have found beyond a reasonable doubt that the answer to the first punishment issue was “yes.”59

The evidence presented at trial shows that Druery picked Rome up in Waco and drove him to Bryan. He attempted on several occasions to obtain Rome’s gun while at a club and on the drive out to the Druery property. At the property, Druery was able to get the gun while he, Pitts, Harris, and Rome shot the gun into a stock tank. During this time, Druery informed both Pitts and Harris that he was going to kill Rome. Pitts reminded Druery that Druery was responsible for taking care of his two-year-old son, but Druery’s response was “So, I want his stuff.”

After ordering Pitts and Harris back to the vehicle, Druery approached Rome in a manner by which he could not be seen, held the gun within six inches of Rome’s head, and shot him once in the head, followed by two additional shots to his neck and body. Druery then took a cell phone, some marijuana, and some cash from Rome’s body. He also kept the gun. Druery attempted to destroy evidence of the crime by twice burning the body and by dumping it into the stock tank. Additionally, directly after the murder, rather than demonstrating remorse for the crime itself, Druery showed regret only for killing Rome in front of Pitts and Harris, giving each forty dollars to calm them. He also concocted a cover story to explain why Rome would be missing and instructed Pitts and Harris to give the story if questioned.

*508This evidence shows that Druery killed Rome with calculation, forethought, and deliberateness to obtain a minimal amount of personal property. Moreover, he committed the murder even after Pitts had tried to dissuade him by reminding Druery of his obligation to care for his own young son.

Evidence apart from the circumstances of the crime itself was also presented to the jury. The State introduced evidence of his: five prior marijuana possession charges; physically violent behavior toward a former girlfriend, which caused her severe injury; pointing a gun at another person in an aggressive manner when confronted about a coat; physically assaultive behavior toward a roommate; overly hostile and violent reactions in situations that angered or frustrated him; threats while displaying a knife to commit physical violence upon pawn shop employees who would not refund money for some merchandise; throwing a chair and table toward two people and swinging a mop at one of themr hitting her, in response to an allegation that he had a puppy he was calling “Cocaine”-that did not belong to him; beating on a door, yelling that he wanted his CD’s .and that he was going to kill someone; shooting a pistol while at a club on one occasion and a shotgun on another occasion; head-butting Pitts, hitting and kicking her, choking her, and threatening to kill her while she was his girlfriend; heavy drug use and his constant possession of weapons; breaking into an apartment where a gun was later found to be missing; chasing Pitts with a rifle when she refused to make him something to eat; threats to kill several people; threatening his father, grandfather, and grandmother with a hammer; attempts to kick down a door of a house because he wanted to use the phone; destroying property while an inmate at the county jail and making threats while at the jail that he was going to hurt someone; and in a letter sent from the jail containing his DNA where he wrote, “Shit if I saw him again before I came in here I would have 2 murder cases. Fuck em all cause Im ball when I get out.”

A rational jury could determine from all of this evidence that there was a probability beyond a reasonable doubt that Druery would commit criminal acts of violence in the future so as to constitute a continuing threat, whether in or out of prison. Point of error twenty-one is overruled.

Constitutionality of Article 37.071 of the Texas Code of Criminal Procedure

In his fifteenth point of error, Druery contends that the omission of a burden of proof in the mitigation special issue,60 which instructs the jury to consider all evidence in determining whether sufficient mitigating circumstances warrant a life sentence instead of a death sentence, is unconstitutional. He argues that the burden should rest with the State to prove lack of mitigation beyond a reasonable doubt but that the burden was effectively and wrongfully placed on him to convince the jury to forgo a death sentence for that of life.

Druery candidly concedes that this claim has been rejected by us but asks that we revisit the issue.61 Druery has not distinguished his case, and we decline Druery’s invitation to revisit the issue. Point of error fifteen is overruled.

*509In his sixteenth point of error, Druery complains that the rule prohibiting the trial judge, the State, the defendant, or defense counsel from informing the jury that a failure of the jury to agree on a special issue would result in a life rather than a death sentence being imposed is unconstitutional.62 Druery recognizes that we have repeatedly rejected this claim63 but asks that we reconsider it. He has not distinguished his case from those in which this same claim was denied, however, and we decline to revisit the issue. Point of error sixteen is overruled.

In his seventeenth, eighteenth, and nineteenth points of error, Druery asserts that the trial judge’s failure to define the words “probability,” “continuing threat to society,” and “criminal acts of violence” to the jury with regard to the future-dangerousness special issue is unconstitutional.64 Druery acknowledges that we have previously rejected these claims65 but asks that we reconsider them.

As we have previously stated, “This Court has repeatedly held that the terms ... ‘probability,’ ‘criminal acts of violence’ and ‘continuing threat to society,’ ... require no special definitions.”66 “Where terms used are words simple in themselves, and are used in their ordinary meaning, jurors are supposed to know such common meaning and terms and under such circumstances such common words are not necessarily to be defined in the charge to the jury.”67 In addition, the Supreme Court of the United States has concluded that the submission of this special issue, even without the definitions in question, is sufficient to constitutionally guide the jury’s determination.68 We decline to reconsider our previous holdings, especially when it has not been shown that Druery’s case is distinguished from those cases in which these same claims were rejected. Points of error seventeen, eighteen, and nineteen are overruled.

Similarly, Druery contends in his twentieth point of error that the trial court’s failure to define the jury-instruction term “moral blameworthiness” with regard to the mitigation special issue, which asked whether there was sufficient mitigating circumstance or circumstances to warrant a sentence of life rather than death,69 is unconstitutional. The jury was instructed at punishment that it “shall consider mitigating evidence to be evidence that a juror might regard as reducing the defendant’s moral blameworthiness.”70 The question of whether the failure to define the term “moral blameworthiness” has already been decided adversely to Druery for the same reasons discussed above,71 and he does not distinguish his case from those previously *510decided. We decline to revisit the issue. Point of error twenty is overruled.

We affirm the judgment of the trial court.

JOHNSON, J., concurred in point of error fourteen and otherwise joined the opinion of the Court.

KELLER, P.J., filed a concurring opinion.

KELLER, P.J., concurring.

1. Accomplice testimony

Appellant raises various claims based on the notion that Pitts and Harris were accomplices. The trial judge instructed the jurors to determine whether Pitts and Harris were accomplices as a matter of fact but refused to submit an instruction describing these witnesses as accomplices as a matter of law. In points of error one through three, appellant claims that the evidence was insufficient to show that the testimony of these alleged accomplices was corroborated. In points of error four and five, he claims that the trial judge erred in refusing to instruct the jury that Pitts and Harris were accomplices as a matter of law. In points of error six and seven, he contends that the accomplice witness instructions that were submitted were defective. And in points of error eight and nine, he contends that the instructions submitted constituted comments on the weight of the evidence.

The Court’s holding with regard to these points seems to be that the evidence was insufficient to support a finding that Pitts and Harris were accomplices as a matter of fact because they were not linked to the crime by any direct testimony or physical evidence. But testimony indirectly linking a person to a crime may be sufficient if enough “linking” factors are present. In Medina v. State, we held that the following factors indirectly linking one of the witnesses to the crime were sufficient to support a finding that he was an accomplice as a matter of fact: (1) the witness’s presence at the scene when the crime occurred, (2) the gang-motivated nature of the crime, (3) the witness’s membership in the gang, and (4) the witness’s efforts to cover up the crime.1 We acknowledged that the issue was “close” and found that the evidence was not sufficient to raise accomplice status as to two other individuals because one of these four factors was missing for each of them.2

While gang membership and motivation were not at issue in this case, there were other factors linking Pitts and Harris to the crime as accomplices. Both Pitts and Harris were connected to the crime in the following ways: (1) they were present at the scene when the crime occurred, (2) they were informed of appellant’s intent to commit the crime before the crime occurred, (3) they were each given some of the proceeds of the crime (money stolen from the victim), and (4) they were present with appellant during appellant’s efforts to cover up the crime. With respect to Harris, there was also evidence that he actually assisted appellant’s efforts to cover up the crime by (1) helping appellant obtain the gasoline used to set the victim’s body on fire and (2) helping appellant dispose of the murder weapon. Pitts and Harris offered exculpatory explanations for some of these factors. There was testimony that they did not believe appellant when he told them that he was going to murder Druery,3 that the money was given to them *511just to calm them down, and that they stayed with appellant during his efforts to cover up the crime because they were afraid of him. But the jury did not have to believe these exculpatory explanations. The only exculpatory fact the jury had to believe was that Pitts went to the police on her own and revealed what appellant had done. I think that, at the least, the evidence was sufficient to submit Harris’s accomplice status to the jury. But for several reasons, we need not — and I believe should not — address whether the evidence raised the issue of whether Pitts and Harris were accomplices as a matter of fact.

First, as the Court concludes, it is absolutely clear that appellant was not entitled to an accomplice “as a matter of law ” instruction. While there was evidence from which a jury could rationally determine that Harris (and possibly Pitts) was an accomplice, there also existed plenty of evidence from which the jury could conclude that Harris and Pitts were not accomplices. That alone defeats appellant’s sufficiency of the evidence claim, advanced in points of error one through three. If accomplice status was, at best, a fact question for the jury, then the jury was free to decide that the witnesses were not accomplices, and thus, their testimony did not have to be corroborated.

In any event, their testimony was corroborated. Appellant does not challenge the sufficiency of the evidence to show the murder, and indeed, such a challenge would be laughable. He confessed to the murder to four friends and acquaintances: Chasiti Hall, Angela Minor, LaKeisha Green, and Charles Kennard. The victim’s body was recovered on Druery property from a stock tank. But corroborating evidence was also present for the underlying offense of robbery (obviating any need to discuss appellant’s contention that we should reconsider cases holding that the underlying offense need not be corroborated). Non-accomplice evidence showed appellant to be in possession, after the murder, of two items of the victim’s property: a gun (the murder weapon) and a cell phone. Charlinda Thomas and Laquita McGowan testified they knew the victim carried a gun, and Ebony Williams testified that she helped the victim purchase a gun. Appellant displayed the murder weapon to both Hall and Kennard after the murder, and he told Minor that he committed the murder with the victim’s gun. Kennard also saw appellant with the victim’s cell phone.

The fact that Pitts and Harris were not accomplices as a matter of law also defeats appellant’s fourth and fifth points because it means that the trial court did not err in refusing to submit an accomplice “as a matter of law” instruction. Although appellant claims in points six through nine that the instructions given were improper and commented on the weight of the evidence, to a large extent those claims turn upon the legitimacy of submitting any accomplice “as a matter of fact” instruction. One of appellant’s major claims under points six and seven is that all accomplice “as a matter of fact” instructions are inadequate because juries can only understand and apply accomplice “as a matter of law” instructions and appellate review can be adequate only when the jury is called upon merely to determine whether accomplice testimony is corroborated. His “comment on the weight of the evidence” claim advanced in points eight and nine amounts to a claim that “as a matter of fact” instructions always constitute comments on the weight of the evidence because, in his view, the accomplice witness statute authorizes only “as a matter of law” instructions.

These claims are an attempt to force a square peg into a round hole by insisting *512that the jury must be charged on Pitts and Harris as accomplices as a matter of law when the evidence does not in fact establish their accomplice status as a matter of law. With regard to the specifics of the contention made in points of error six and seven, I observe that an inquiry into accomplice status is essentially the same as an inquiry into determining whether a defendant is guilty under the law of parties. The latter inquiry is trusted to jurors all the time. Appellant argues that he is denied appellate review because no special issue regarding accomplice “as a matter of law” versus “as a matter of fact” was submitted. But most issues in a criminal case — including, for example, the law of parties — are not submitted separately. We have long held that a general verdict is proper.4 As for appellant’s contention regarding a comment on the weight of the evidence, I see nothing in the relevant statutes that limits accomplice witness instructions to the accomplice “as a matter of law” variety.5 And it is not a comment on the weight of the evidence to charge the jury with determining whether the witnesses are accomplices as a matter of fact when the evidence at trial raises a fact issue on that score.

Points of error six and seven also allege specific errors (of omission) in the instructions given: (1) the trial judge did not instruct the jury that, if they found the witnesses to be accomplices, their testimony must be excluded before examining the remainder of the evidence for corroboration, (2) the trial judge did not instruct the jury that one accomplice cannot corroborate another accomplice, (3) the jury was not required to find corroboration on all of the elements of the offense (e.g. the underlying offense), and (4) the “mere presence” part of the accomplice witness instruction was defective because it did not clearly provide that appellant’s mere presence was not sufficient to connect him to the offense. Appellant concedes that he did not object on these grounds; therefore, he must show egregious harm.6 Given that the accomplice witness instruction in this case tracked the language of the statute and included some supplemental language beneficial to appellant, and that there was significant non-accomplice evidence as to both the murder and the robbery, I conclude that appellant did not suffer egregious harm from the claimed omissions.

2. Lesser-included offense instruction

In point of error fourteen, appellant contends that the trial court erred in failing to submit an instruction on the lesser-included offense of murder. In rejecting this claim, the Court holds that appellant is estopped by his own affirmative conduct, but I would reject appellant’s claim on a narrower basis. While defense counsel did expressly agree with the trial court that he was not requesting a lesser-included offense, I would say that he waived the claim rather than that he is estopped from advancing the claim. I would not say, as the Court does, that his agreement with the trial court’s statement amounts to having induced the error of which he complains or that it amounts to a specific request that the instruction not be submitted. It is enough to say that a lesser-included of*513fense instruction is a kind of defensive issue7 that does not become law applicable to the case if appellant fails to request it.8

With these comments, I concur in the Court’s judgment with respect to points of error one through nine and point of error fourteen, and I otherwise join the Court’s opinion.

OPINION

PRICE, J.,

delivered the opinion for a unanimous Court.

The appellant was convicted of murder.1 He pled true to one enhancement count, and the jury assessed punishment at thirty-five years’ imprisonment. In an unpublished opinion, the Fifth Court of Appeals affirmed the appellant’s conviction, holding that the trial court did not abuse its discretion in admitting evidence from MySpace pages that the State believed were created by the appellant.2 We will affirm the judgment of the court of appeals.

FACTS AND PROCEDURAL POSTURE

David Valadez and his two passengers were the targets of a multiple car shootout while driving southbound in Dallas on I-35E towards 1-30. The shooting was apparently the product of some tension displayed between two rival groups at a nightclub earlier that evening, where members of the appellant’s group were “throwing” gang signs and “talking noise” to Valadez and his friends. Shortly after Valadez and his passengers left one nightclub to head to another “after hours” club, Valadez’s car unexpectedly came under gunfire from a caravan of three or four cars also traveling southbound on I-35E towards 1-30. The appellant was a passenger in one of the cars in the caravan.

Testimony at trial as to the appellant’s specific involvement in the shooting varied widely. The witnesses agreed that the appellant was at least present during the shooting; however, there was inconsistent testimony as to who fired the first gunshots, whether the appellant was seen merely holding a gun or actually firing a weapon, which car the appellant was riding in, and from which car the fatal shots were fired. During the exchange of fire, Vala-dez was shot twice, causing him to lose control and crash his vehicle into the highway’s center concrete divider. Valadez died as a result of the gunshot wounds shortly after being taken to a nearby hospital. Although cartridge casings consistent with at least two weapons were found at the scene of the shooting, the bullet recovered from the deceased’s body could not be matched to a particular weapon, as no firearms were ever recovered.

During preparation of the State’s case against the appellant, the deceased’s sister, Priscilla Palomo, provided the State with information regarding three MySpace profile pages that she believed the appellant was responsible for registering and maintaining.3 After subpoenaing MySpace.com for the general “Subscriber Report” associated with each profile account, the State *635printed out images of each profile page directly from the MySpace.com website, and then marked the profile pages and related content as State’s exhibits for trial. The State used Palomo as the sponsoring witness for these MySpace accounts at guilt/innocence, and, over the appellant’s running objection as to the authenticity of the profile pages, the State was permitted to admit into evidence the names and account information associated with the profiles, photos posted on the profiles, comments and instant messages linked to the accounts, and two music links posted to the profile pages.

The State had Palomo explain how she came across the profiles and brought them to the attention of the prosecutor. The trial judge sustained the appellant’s first authentication objection when the prosecutor began asking Palomo questions about the specific content of the MySpace profiles prior to introducing any exhibits into evidence. After a brief sidebar conference at the bench with defense counsel off the record, the prosecutor marked the relevant MySpace profile printouts as numbered State’s exhibits and had Palomo identify the printouts as the profiles she had found on MySpace. The prosecutor also offered into evidence the subscriber reports and accompanying affidavits subpoenaed from MySpace.4 The judge then admitted the printouts of the profiles, over the appellant’s objection that the State still had not laid the proper predicate to prove that the profiles were in fact what the State purported them to be, namely, declarations that the appellant himself had posted on his personal MySpace pages.

According to the subscriber reports, two of the MySpace accounts were created by a “Ron Mr. T,” and the third by “Smiley Face,” which is the appellant’s widely-known nickname. The account holder purported to live in “D TOWN,” or “dallas,” and registered the accounts with a “ronnietiendajr@” or “smileys_shit@” email address. The State introduced multiple photos “tagged” to these accounts because the person who appeared in the pictures at least resembled the appellant. The person is shown displaying gang-affiliated tattoos and making gang-related gestures with his hands.

The main profile pages of the MySpace accounts contained quotes boasting “You aint BLASTIN You aint Lastin’’ and “I live to stay fresh!! I kill to stay rich!!” Under the heading “RIP David Valadez” was a link to a song that was played by Valadez’s cousin at Valadez’s funeral. Another music link posted to one of the profiles was a song titled “I Still Kill.” The instant messages exchanged between the account holder and other unidentified MySpace users included specific references to other passengers present during the shooting, circumstances surrounding the shooting, and details about the State’s investiga*636tion following the shooting. The author of the messages made specific threats to those who had been “snitchin” and “dont run shit but they mouth,” assigning blame to others for being the “only reason im on lock down and have this shit on my back.” The author also generally boasted to another user that “WUT GOES AROUND COMES AROUND” and “U KNO HOW WE DO, WE DON’T CHASE EM WE REPALCE EM.” The author accused: “EVERYONE WUZ BUSTIN AND THEY ONLY TOLD ON ME.” Several of the instant messages also complained about the author’s electronic monitor, which was a condition of the appellant’s house arrest while awaiting trial.5

The State elicited additional testimony concerning the MySpace pages through a Dallas Police Department gang unit officer, Detective Daniel Torres, during guilt/innocence and through Valadez’s mother during punishment. The officer testified regarding the common use of social networking media, such as MySpace, by gangs to stay in touch with members and to “promote” their gangs by bragging about participation in gang-related activities. At punishment, Valadez’s mother was permitted to testify about how “devastated” she and her family were when they found the appellant’s music link on his profile page with the title “RIP David Valadez,” which in her eyes was the appellant’s way of bragging about killing her son through the song that was played at his memorial. The appellant repeatedly objected, during both stages of trial, on the basis of improper authentication, hearsay, and relevance.

Through cross examination of Palomo, defense counsel elicited testimony regarding the ease with which a person could create a MySpace page in someone else’s name and then send messages, purportedly written by the person reflected in the profile picture, without their approval. Defense counsel emphasized that any case-specific facts that were referenced in the MySpace messages associated with these accounts were not facts solely within the defendant’s knowledge, but were known to the deceased’s family, friends, and practically any other third party interested in the case. Although the gang officer, Torres, testified to having prior experience using MySpace to investigate gang-related activity, when asked on cross examination whether he had any particular knowledge regarding how a MySpace account is created, he stated: “None, whatsoever.” The officer acknowledged that anyone could create a MySpace page, but he had never created one himself.

During the appellant’s guilt/innocence closing argument, counsel again emphasized the ease with which a MySpace account could be created or accessed without someone’s approval and highlighted the State’s failure to prove that the accounts were created by the appellant through any technological or expert evidence, for example, by tracing the IP address listed in the subscriber report to the appellant’s personal computer. In sum, defense counsel argued that the MySpace evidence was never authenticated and was not credible evidence that the jury should consider in supporting a guilty verdict. The State’s closing arguments during both phases of trial included multiple MySpace references and specific quotes from the profile pages. The jury found the appellant guilty and assessed punishment at thirty-five years in prison.

*637On appeal, the appellant argued that the trial court erred in overruling his objections to the MySpace evidence. The court of appeals found sufficient “individualization” in the comments and photos on the MySpace pages to satisfy the factors laid out in Texas Rule of Evidence 901(b)(4) and admit the evidence as a “conditional fact of authentication” to support a “finding that the person depicted supplied the information.”6 In so ruling, the court of appeals relied for authority solely upon the opinion of an intermediate appellate court in Maryland that has since been reversed, as the appellant emphasizes now in his brief on the merits before this Court, by that state’s highest appellate court.7 We granted the appellant’s petition for discretionary review to determine whether the court of appeals erred in holding that the trial court did not abuse its discretion in finding that the MySpace profiles were properly authenticated. We now affirm.

THE ARGUMENTS AND THE LAW OF AUTHENTICATION

The Arguments of the Parties

In his only issue for discretionary review, the appellant contends that the trial court erred in admitting into evidence the electronic content obtained from MySpace during both the guilt/innocence and punishment phases of his trial. The appellant broadly argues that the State failed to properly authenticate any of the evidence printed from the social networking website; and more specifically, that the “contents of a website cannot authenticate the website” itself.8 In other words, he complains that the State did not prove that he was responsible for creating and maintaining the content of the MySpace pages by merely presenting the photos and quotes from the website that tended to relate to him. Therefore, the appellant concludes, the trial court erred in overruling his running objections under Texas Rules of Evidence Rule 901,9 and the court of appeals should not have affirmed its ruling.

The State contends, in opposition, that the contents of the social networking pages in this case contained sufficiently distinctive information to justify conditionally submitting them to the jury for its ultimate finding whether “the matter in question is what its proponent claims”10 — here, that the MySpace pages were created and maintained by the appellant. The specificity of the content, which the State characterized as “admissions” by the appellant, was sufficient to tie him to this particular evidence and allow the jury to consider it for that purpose.11 At a minimum, the State argues, the trial court’s decision was “within the zone of reasonable disagreement” and therefore should not be disturbed on appeal.12

Standard of Review and Applicable Law

Under Texas Rules of Evidence Rule 104(a), whether or not to admit evi-*638dence at trial is a preliminary question to be decided by the court.13 A bedrock condition of admissibility of evidence in any legal contest is its relevance to an issue in the case — that is to say, its tendency to make a fact of consequence to determination of the action more or less probable.14 Evidence has no relevance if it is not authentically what its proponent claims it to be. Rule 901(a) of the Rules of Evidence defines authentication as a “condition precedent” to admissibility of evidence that requires the proponent to make a threshold showing that would be “sufficient to support a finding that the matter in question is what its proponent claims.”15 Whether the proponent has crossed this threshold as required by Rule 901 is one of the preliminary questions of admissibility contemplated by Rule 104(a).16 The trial court should admit proffered evidence “upon, or subject to the introduction of evidence sufficient to support a finding of’ authenticity.17 The ultimate question whether an item of evidence is what its proponent claims then becomes a question for the fact-finder — the jury, in a jury trial.18 In performing its Rule 104 gate-keeping function, the trial court itself need not be persuaded that the proffered evidence is authentic. The preliminary question for the trial court to decide is simply whether the proponent of the evidence has supplied facts that are sufficient to support a reasonable jury determination that the evidence he has proffered is authentic.19

Appellate review of a trial court’s ruling on such a preliminary question of admissibility is deferential; the standard is abuse of discretion.20 If the trial court’s ruling that a jury could reasonably find proffered evidence authentic is at least “within the zone of reasonable disagreement,” a reviewing court should not interfere.21

Evidence may be authenticated in a number of ways, including by direct testimony from a witness with personal knowledge, by comparison with other authenticated evidence, or by circumstantial evidence.22 Courts and legal commentators have reached a virtual consensus that, although rapidly developing electronic communications technology often presents new and protean issues with respect to the admissibility of electronically generated, transmitted and/or stored information, including information found on social networking web sites, the rules of evidence already in place for determining authenticity are at least generally “adequate to the *639task.”23 Widely regarded as the watershed opinion with respect to the admissibility of various forms of electronically stored and/or transmitted information is Lorraine v. Markel American Insurance Co,24 There the federal magistrate judge observed that “any serious consideration of the requirement to authenticate electronic evidence needs to acknowledge that, given the wide diversity of such evidence, there is no single approach to authentication that will work in all instances.”25 Rather, as with the authentication of any kind of proffered evidence, the best or most appropriate method for authenticating electronic evidence will often depend upon the nature of the evidence and the circumstances of the particular case.26

Like our own courts of appeals here in Texas,27 jurisdictions across the country have recognized that electronic evidence may be authenticated in a number of different ways consistent with Federal Rule 901 and its various state analogs. Printouts of emails, internet chat room dialogues, and cellular phone text messages have all been admitted into evidence when found to be sufficiently linked to the purported author so as to justify submission to the jury for its ultimate determination of authenticity.28 Such prima facie authen*640tication has taken various forms. In some cases, the purported sender actually admitted to authorship, either in whole or in part,29 or was seen composing it.30 In others, the business records of an internet service provider or a cell phone company have shown that the message originated with the purported sender’s personal computer or cell phone under circumstances in which it is reasonable to believe that only the purported sender would have had access to the computer or cell phone.31 Sometimes the communication has contained information that only the purported sender could be expected to know.32 *641Sometimes the purported sender has responded to an exchange of electronic communications in such a way as to indicate circumstantially that he was in fact the author of the particular communication, the authentication of which is in issue.33 And sometimes other circumstances, peculiar to the facts of the particular case, have sufficed to establish at least a prima facie showing of authentication.34

However, mindful that the provenance of such electronic writings can sometimes be open to question — computers can be hacked, protected passwords can be compromised, and cell phones can be purloined — courts in other cases have held that not even the prima facie demonstration required to submit the issue of authentication to the jury has been satisfied.35 That an email on its face purports *642to come from a certain person’s email address, that the respondent in an internet chat room dialogue purports to identify himself, or that a text message emanates from a cell phone number assigned to the purported author — none of these circumstances, without more, has typically been regarded as sufficient to support a finding of authenticity.36

ANALYSIS

In this case, the internal content of the MySpace postings — photographs, comments, and music — was sufficient circumstantial evidence to establish a prima facie case such that a reasonable juror could have found that they were created and maintained by the appellant. That circumstantial evidence included:

• The first MySpace business record I.D. is # 120841341. The official MySpace Subscriber Report lists the User as “First Name: ron; Last Name: mr.t” with an email address of “smileys_shit@.” [Witnesses testified that the appellant’s nickname is “Smiley.”] The city is listed as “D TOWN.”

• The Subscriber Report for MySpace User #300574151 lists the owner as “First Name: ron; Last name: Mr. T” with an email address of “ronnietiendajr@.” As with the first MySpace listing, the city for this listing is “D*Town.” The zip code is 75212.

• The Subscriber Report for MySpace User #435499766 lists the owner as “First Name: SMILEY; Last Name: FACE” with an email address of ronnietiendajr@. The city for this listing is “dallas” and the zip code is 75212.

• The first MySpace page of User # 120841341 offered into evidence con*643tains a photograph of the appellant37 under the title “SMILEY FACE.” The photograph shows the appellant pulling a shirt up over the bottom half of his face. The tattoos on his arms, however, are clearly visible. There is a date stamp on the photograph of “03/01/2007 17:09.”38

• To the right side of the appellant’s photograph on that MySpace page is the following:

“You aint BLASTIN

You aint Lastin’’

Male

21 years old

D Town, Texas

United States

Last Login: 9/4/200739

• Below the appellant’s photograph and the caption on that MySpace page is the legend “RIP David Valadez” and a music button which, according to Priscilla Paloma, played the song that was played at David Valadez’s funeral.

• On the MySpace page for User # 300574151, there is a photograph of the appellant, bare-chested, with his gang tattoos — including “Tango Blast” written across his chest.40

• The MySpace page is titled “MR. SMILEY FACE” even though the Subscriber Report list the User’s name as “ron Mr. T” and his email address as “ronnietiendajr@.”

• Beside the appellant’s photograph on that MySpace page is the following:

“I LOVE DRAMA SO MUCH CUZ MY LIFE IS SO ROUGH!!!

ANYTHING ELSE WOULDN’T SEEM NORMAL!!!

Male

22 years old

D*Town, Texas

United States

Last Login: 5/19/200841

*644• Below the appellant’s photograph and the caption on that MySpace page is the music button for the “50 Cent I Still Kill by dj Bali” sound clip.

• Below that caption is the following:

MR. SMILEY FACE’S INTERESTS

General AINT PROUD OF MY PAST BUT IM LIVIN N DA PRESENT N ALWAYS PLANIN 4 DA FUTURE!!! NSXV111ST42

• Also on the MySpace Profile page for User #300574151 is a later photograph of a bare-chested appellant, again showing his tattoo “Tango Blast.”43

• That photograph carries the heading: Mr. ONE OF A KIND.

• Beside the appellant’s photograph on that MySpace page is the following:

“DIS IS WHO I AM!!! DON’T LIKE IT FUCK YOU!!!”

Male

22 years old

D*Town, Texas

United States

Last Login: 9/5/200844

• On the right hand side of the page is the following statement: Mr.ONE OF A KIND I LIVE TO STAY FRESH!! I KILL TO STAY RICH!! N OTHER WORDS IMA GO TO WAR BOUT MY SHIT!!

• The MySpace User # 300574151 message page contains numerous messages to other MySpace users45 Only the 53 messages sent between 2:00 p.m. and 9:44 p.m. on September 21, 2008, were introduced into evidence. The messages that indicate that it is the appellant himself who is the creator, owner, and user of this MySpace account include the following:

• At 2:09 p.m. the User sent a message to User #73576314: “SHIT CAN U BELIEVE I ALREADY BEEN ON DIS MONITOR A YEAR NOW AND SHIT AINT NO TELLING WHEN A NIGGA GONE GET OFF DIS HOE”46

• At 2:17 p.m. the User sent a message to the same User: “SHIT IT AINT ME IT THE STATE SETTIN IT OFF AND SINCE I HAVE SNITCHES ON ME THEY TRYNA GET A NIGGA LOCKED UP”

*645• Also at 2:17 p.m., the User sent a message to User # 103410565: “U KNO ME AND U MY NIGGA SO U WANT TO FUCK HIM UP U KNO HOW WE DO, WE DONT CHASE EM WE REPALCE EM”

• At 2:21 p.m. the User sent another message to User # 103410565: “IS IT DAT FRIENDLY ASS NIGGA IN ALL DEM PIX AND SHIT JUS PLAY IT COO WUT GOES AROUND COMES AROUND YA FEEL ME”

• At 2:22 p.m. the User sent a message to User #73576314: “MAN JESSE BOY HECTOR SNITCHIN ON ME I AINT TRIPPIN ON BEEF BUT TELLIN A WHOLE NOTHER BALL GAME DAT I DONT PLAY”

• At 2:27 p.m. the User sent a message to User # 12231226: “SHIT ON STILL ON A MONITOR SO I AINT BEEN NO WHERE IN A BOUT A YEAR NOW AND MY B DAY WAS O THA12TH U FO GOT BOUT ME”47

• At 2:35 p.m. the User sent a message to User #73576314: ‘YEA Y U THINK IM ON DIS MONITOR MY NIGGA SHIT HATIN ASS NIGGAS WNNA TALK ALL DAT GANGSTA SHIT AND WEN THE GOIN GET TUFF DEM NIGGAS DON’T RUN SHIT BUT THEY MOUTH”

• At 2:42 p.m. the User sent a message to the same User: ‘YEA SHIT EVERYONE WUZ BUSTIN AND THEY ONLY TOLD ON ME”

• At 2:50 p.m. the User sent another message to the same User: ‘YEA SHIT U KNO I KEEP GANGST EVEN AFTER HECTOR SHOT AT NEW AT RUMORS WE STILL DIDNT TELL AND I KNO JESSE TOLD HIM WE WAS THERE CUZ WE SAW THEM AT THA CLUB BUT ITS COO IF I GET OFF MAN@!!!!!”48

This combination of facts — (1) the numerous photographs of the appellant with his unique arm, body, and neck tattoos, as well as his distinctive eyeglasses and earring; (2) the reference to David Valadez’s death and the music from his funeral; (3) the references to the appellant’s “Tango Blast” gang; and (4) the messages referring to (a) a shooting at “Rumors” with “Nu-Nu,” (b) Hector as a “snitch,” 49and (c) the user having been on a monitor for a year (coupled with the photograph of the appellant lounging in a chair displaying an ankle monitor) sent from the MySpace pages of “ron Mr. T” or “MR. SMILEY FACE” whose email address is “ronnie tiendajr@” — is sufficient to support a finding by a rational jury that the MySpace pages that the State offered into evidence were created by the appellant. This is ample circumstantial evidence — taken as a whole with all of the individual, particular details considered in combination — to support a finding that the MySpace pages belonged to the appellant and that he created and maintained them.

It is, of course, within the realm of possibility that the appellant was the victim of some elaborate and ongoing con*646spiracy. Conceivably some unknown malefactors somehow stole the appellant’s numerous self-portrait photographs, concocted boastful messages about David Va-ladez’s murder and the circumstances of that shooting, was aware of the music played at Valadez’s funeral, knew when the appellant was released on pretrial bond with electronic monitoring and referred to that year-long event along with stealing the photograph of the grinning appellant lounging in his chair while wearing his ankle monitor. But that is an alternate scenario whose likelihood and weight the jury was entitled to assess once the State had produced a prima facie showing that it was the appellant, not some unidentified conspirators or fraud artists, who created and maintained these MySpace pages.

The court of appeals in this case relied upon the opinion of an intermediate court of appeals in Maryland in a case presenting similar facts.50 But that intermediate appellate court’s opinion has since been reversed on discretionary review.51 In Ghijfin v. State, 52 involving a prosecution for murder and assault, the State proffered a printout of portions of a MySpace profile purporting to be that of Griffin’s girlfriend.53 Although the girlfriend testified at trial, the State did not attempt to authenticate the MySpace profile as genuinely hers through her testimony.54 Instead, the lead investigator in the case testified that the MySpace profile identified itself as being that of “Sistasouljah,” having the same date of birth as the girlfriend.55 Also posted on the profile was a photographic image of the defendant with his girlfriend.56 The State argued that the date of birth and the photograph provided sufficient indicia of authentication to justify admission of other postings on the MySpace profile that amounted to veiled threats against the State’s principal witness against the defendant.57 The Maryland Court of Appeals disagreed.58 “Anyone can create a MySpace profile at no cost,” the Court observed, and “anyone can create a fictitious account and masquerade under another person’s name or can gain access to another’s account by obtaining the user’s username and password!.]”59 Relying for “assistance” in its analysis upon Lorraine, the Maryland Court of Appeals concluded:

The potential for abuse and manipulation of a social networking site by someone other than its purported creator and/or user leads to our conclusion that a printout of an image from such a site requires a greater degree of authentication than merely identifying the date of birth of the creator and her visage in a photograph on the site in order to reflect that [the defendant’s girlfriend] was its creator and the author of [the threatening language posted thereon].60

Accordingly, the Maryland Court of Appeals held that the trial court had abused its discretion to find that the State had laid *647an adequate prima facie foundation for admission of the MySpace profile postings.61

Along the way, the Maryland Court of Appeals recognized that such postings may readily be authenticated, explicitly identifying three non-exclusive methods.62 First, the proponent could present the testimony of a witness with knowledge; or, in other words, “ask the purported creator if she indeed created the profile and also if she added the posting in question.”63 That may not be possible where, as here, the State offers the evidence to be authenticated and the purported author is the defendant. Second, the proponent could offer the results of an examination of the internet history or hard drive of the person who is claimed to have created the profile in question to determine whether that person’s personal computer was used to originate the evidence at issue.64 Or, third, the proponent could produce information that would link the profile to the alleged person from the appropriate employee of the social networking website corporation.65 The State of Maryland failed to take advantage of any of these methods in Griffin. And it is true that the State of Texas has likewise failed to utilize any of them in the appellant’s case.66 Nevertheless, as we have explained, there are far more circumstantial indicia of authenticity in this case than in Griffin — enough, we think, to support a prima facie case that would justify admitting the evidence and submitting the ultimate question of authenticity to the jury. We hold that the court of appeals did not err to conclude that it was within the trial court’s discretion to admit the MySpace postings, notwithstanding that the persuasive authority it relied upon for that proposition has since been overruled.

CONCLUSION

Because there was sufficient circumstantial evidence to support a finding that the exhibits were what they purported to be— MySpace pages the contents of which the appellant was responsible for — we affirm the trial judge and the court of appeals which had both concluded the same.

OPINION

Yeary, J.,

delivered the opinion of the Court

in which Keller, P. J., and Meyers, Keasler, Hervey, Alcala, Richardson and Newell, JJ., joined.

Appellant was convicted of the aggravated kidnapping of his girlfriend, Ashley Salas. On direct appeal, he complained that the trial court admitted certain text messages into evidence that Appellant claimed were not properly authenticated. The State introduced the text messages through Salas, who testified that she recognized Appellant’s phone number displayed on the text messages, that the text messages were from Appellant, and that Appellant even called her from that phone number at some point during the course of their text messaging back and forth.

Relying upon this Court’s opinion in Tienda v. State, 358 S.W.3d 633 (Tex.Crim. App.2012), the Corpus Christi Court of Appeals held that Salas’s testimony did not adequately serve to authenticate the text messages. Butler v. State, No. 13-12-00608-CR, 2014 WL 1272232, at *4 (Tex.App.—Corpus Christi Mar. 27, 2014) (not designated for publication). Finding that the trial court erred by admitting the text messages and that their admission into evidence was not harmless, the court of appeals reversed Appellant’s conviction. Id. at *4-6. Justice Perkes dissented. Id. at *6-7. We granted the State’s petition for discretionary review in order to examine the court of appeals’s application of our holding in Tienda, and we now reverse.

BACKGROUND

Salas testified that, as of August 18 of 2011, she and Appellant had been living together for four or five months in a house in Beeville. That morning Salas received a phone call from her grandmother in nearby Kenedy, who was undergoing cancer treatment and did not expect to live for long. Salas decided to drive to Kenedy to join other family members in visiting her grandmother.

Appellant was unhappy with Salas’s decision to visit her grandmother, and he began to harass her on her mobile phone, calling and texting her repeatedly from the time she left the house and continuing throughout the afternoon and into the evening. He accused her of using the family visit as a cover for infidelity. At about 9:00 o’clock, Salas heard her car start outside, and she saw Appellant drive it away. Appellant immediately sent Salas a text message to say that she could find her car on the side of the highway. When Salas later returned with her mother to Beeville, she found her car and drove it to her mother’s house, arriving at about 11:00 o’clock. Appellant found Salas there and apologized profusely, eventually persuading her to return to their home.

On the drive back to their house, Appellant once again accused Salas of infidelity and began to strike her. When she tried to exit the car, he restrained her by her hair. Once back at the house, Appellant pushed Salas inside and demanded to know the identity of her lover. He tore her clothes off and began to punch her and pull her hair. He would not let her leave *599the house, and for the rest of the night he continued intermittently to interrogate, threaten, berate, smother, strangle, kick, and otherwise batter her until she eventually fell asleep at around daylight. When she awoke later that morning, Appellant acted as if he did not know what had happened to her. Salas’s mother came in the afternoon and called an ambulance to take her to the hospital. A police detective photographed the numerous abrasions and contusions on Salas’s face and body. Appellant was then arrested and charged with aggravated kidnapping.1

Prior to trial, Salas gave a written statement to Appellant’s attorney in which she provided a different account of the beating she had endured. She explained that she had arrived back at the house by herself only to find one of Appellant’s friend’s girlfriends and another woman sitting on the couch. Suspecting Appellant of infidelity, she attacked the women but suffered the worse for the encounter. On cross-examination, Salas admitted to making the written statement, but she denied that it was truthful, explaining that Appellant had persuaded her to concoct this alternative story several months after the incident when she discovered she was pregnant with his child.

The week before trial began, Appellant and Salas shared an exchange of text messages in which, Salas believed, Appellant threatened “to come and hurt [her] or [her] family” should she testify against him. The State offered State’s Exhibit 57, encompassing a number of photographs of the text messages taken from Salas’s Blackberry. The text messages, spanning a period of about eight minutes, read:2

3612153899: And add this cuz ur fon is taped that y u tex I’ll kill u myself bitch

3612153899: Pipe in ur mouth ho

3612153899: I can’t wait your teeth r going in ur throat

Salas: Ok I said it once versus u sayin it over 10 times ok mmm wat u Don’t b a pussy tell me

3612153899: Snithin ass bitch ur dead I hope u lived it out cuz ur scum snitching bitching ass

3612153899: I’ll start with ur mono first

Salas: Who I can’t understand ur writing

3612153899: Ur the pussy u run to the cops after u fuck me over

3612153899: Shut up bitch

Salas: And wat? ?

Salas: Have some balls & take responsibly for. your own ACTIONS

Salas: U did the crime

3612153899: They sent u in there to take pics of me

3612153899: U deserved it

Salas: I deserved wat

3612153899: Tiers need that

3612153899: Lmfao

3612153899:' Everyone counted

The trial court admitted this exhibit over Appellant’s objection that, among other things, the “proper predicate” was lacking.

The State offered the text messages after laying the following predicate through Salas’s testimony:

*600Q. What is [Appellant’s] phone number?

A. 361-215-3899.

Q. Does that number appear on all the pages of the exhibit?

A. Yes.

Q. How do you know that that is [Appellant’s] telephone number?

A. Because that’s where he called me from and that’s what’s on the same . exhibit in front of me.

Q. You’ve read the text messages in the exhibit?

A. Yes.

Q. Who sen[t] you those text messages?

A. He did.

Q. How do you know that it was him?

A. Because he was the one texting me back and forth and he had even called in between the conversations talking mess.

The jury found Appellant guilty. Appellant pled true to one enhancement count for a prior aggravated assault, and the trial court assessed his punishment at fifty years’ confinement in the penitentiary and a fine of $10,000.

On appeal, the court of appeals found the State’s predicate inadequate to establish that Appellant was the author of the text messages attributed to number 361-215-3899. Even Salas’s testimony that Appellant had called her “in between the conversations talking mess” failed, in the eyes of the court of appeals, to “provide a sufficient link between [Appellant] and the text messages to warrant the ultimate submission of the text message transcript to the jury.” Butler, 2014 WL 1272232, at *4. The court of appeals elaborated:

If the State sought to authenticate the text messages solely through Salas, rather than through the cellular phone company or any other means, it could' have done so by further developing Salas’s testimony to include other circumstantial evidence that would have linked [Appellant] to the text messages or to 1 the telephone that was used to send the messages, such as whether [Appellant] identified himself, how she knew it was [Appellant] calling, or how she recognized his voice.

Id.

THE LAW OF AUTHENTICATION

“The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” Tex.R. Evid. 901(a). In a jury trial, it is the jury’s role ultimately to determine whether an item of evidence is indeed what its proponent claims; the trial court need only make the preliminary determination that the proponent of the item has supplied facts sufficient to support a reasonable jury determination that. the proffered evidence is authentic. Tienda, 358 S.W.3d at 638. The trial court’s determination of whether the proponent has met this threshold requirement is subject to appellate review for an abuse of discretion and should not be countermanded so long as it is within the zone of reasonable disagreement. Id. This has been aptly described as a “liberal standard of admissibility.” Cathy Cochran, Texas Rules of Evidence Handbook 922 (7th ed. 2007-08).

CELL PHONE TEXT MESSAGES

Text messages are “short messages [sent] over a cellular phone network, typically by means of a short message service (SMS).” Steven Goode, The Admissibility of Electronic Evidence, 29 REV. LITIG. 1,16 n.66 (Fall 2009). As with other types of evidence, text messages may be authenticated by “evidence sufficient to *601support a finding that the matter is what its proponent claims.” Tex.R. Evid. 901(a). This can be accomplished in myriad ways, depending upon the unique facts and circumstances of each case, including through the testimony of a witness with knowledge or through evidence showing distinctive characteristics. Tex.R. Evid. 901(b)(1) (testimony of a witness with knowledge); Tex.R. Evid. 901(b)(4) (distinctive characteristics and the like); see, also Goode, supra, at 16-19, 31 — 38.

A witness might have “knowledge” of the authorship of a text message for a number of reasons. One reason might be that the witness is the actual author of the text message. Tienda, 858 S.W.3d at 640. Another reason might be that the witness personally observed the purported author actually type and/or send the message. Id. A witness might also claim to have knowledge that a text message came from a phone number known to be associated with the purported sender. The association of- a cell-phone number with a particular individual might suggest that the owner or user of that number may be the sender of a text message. Indeed, the suggestion may be quite strong. Unlike so-called “land lines,” commonly utilized by an entire household, cell phones tend to be personal and user-specific.3

Still, evidence that merely shows the association of a phone number with a purported sender — alone—might be too tenuous. We have advised caution in the event a trial court finds that this is the only fact underlying a witness’s knowledge linking a text message to the purported author.4 A logical gap may still exist — a gap that we can recognize by reason and common sense — because, as we recognized in Tienda, “cell phones can be purloined,”5 and a cell-phone number does not necessarily establish the identity of the user at a particular moment in time with the same definitiveness that fingerprints, signatures, photographs, or DNA may establish the identity of the perpetrator of a crime.

In isolation, a cell phone number is in some respects similar to a return *602address on a letter. If the return address is the location where the purported author happens to live, it may suggest that the person who lives at the address is the author of the letter. Or it might not — at least not on its own, if multiple people happen to live at or have access to that same address. But a letter bearing the return address of a purported author, combined with other circumstances including its appearance and contents, may be sufficient to authenticate a letter as having been sent by the person purported to be its author.6

As with evidence in general, authenticating evidence may be direct or circumstantial.7 In cases where a sponsoring witness may testify to an association between a cell-phone number and a purported author, other evidence may be available that might bridge the logical gap and permit a proper inference that the purported author sent the message. The other evidence might include the message’s “appearance, contents, substance, internal patterns, or other distinctive characteristics,” which considered in conjunction with other circumstances support a conclusion that a message indeed emanated from the purported author. Tex.R. Evid. 901(b)(1).

For example, a cellular-phone company may provide records to show that a text message originated from the purported sender’s phone “under circumstances in which it is reasonable to believe that only the purported sender would have had ac*603cess to the ... cell phone.” Tienda, 358 S.W.3d at 640. In other cases, the purported sender of a message may respond in such a way as to indicate his or her authorship of the message, such as by calling the recipient to confirm receipt of the message. Id. at 641. And in still other cases, the content and/or context of a particular exchange of messages may create an inference supporting the conclusion that it was in fact the purported author who sent them. See Id. at 641 & n.34.8

ANALYSIS

In the instant case, Salas testified that the text messages at issue emanated from phone number 361-215-3899. She had personal knowledge that this was Appellant’s phone number, presumably from past experience. The court of appeals believed that the State’s predicate failed to establish any more than the bare fact that the text messages emanated from Appellant’s personal phone. Butler, 2014 WL 1272232 *4 (“Salas’s testimony states that she had personal knowledge that it was Butler’s telephone number because he had called her from that number before. This testimony, without more, is exactly the type of evidence that the Tienda Court warned about in authenticating text messages.”). It concluded there was insufficient accompanying indicia of Appellant’s authorship. Id. In our view, however, there was other evidence that bridged the gap and supplied the necessary predicate.

Asked how she knew it was Appellant’s number, Salas replied: “[b]ecause that’s where he called me from[.]” But how did she know that it was Appellant who was using that phone to send her the particular text messages at issue in this case? According to Salas, “Because he was the one texting [her] back and forth and he had even called in between the conversations talking mess.”9 Although Salas’s responses are not without ambiguity, a rational jury could conclude that Salas recognized the texts to be coming from Appellant on this occasion (and not someone else who might have purloined his phone) because: (1) he had called her from that number on past occasions; (2) the content and context of the text messages convinced her that the messages were from him; and (3) he actually called her from that same phone number during the course of that very text message exchange.

Aside from the fact that appellant had called Salas in the past from phone number 361-215-3899, the content and context of the text messages themselves constituted additional circumstantial evidence of the authenticity of the messages. See Tex.R. Evro.901(b)(4) (distinctive characteristics and the like). When considering the admissibility of text messages, just as when considering the admissibility of letters, emails, instant messages, and other similar written forms of communications, courts must be especially cognizant that such matters may sometimes be authenticated by distinctive characteristics found within the writings themselves and by comparative reference from those characteristics to other circumstances shown to exist by the evidence presented at trial.10 *604Conversations and events that precede or follow the communications at issue, when identified or referred to within the written communication, can provide contextual evidence demonstrating the authenticity of such communications.11

Take, for example, the text-message exchange in this case, which occurred the week before Appellant’s trial began. One particular text message sent' from Appellant’s phone during the exchange stated: “Snithin ass bitch ur dead I hope u lived it out cuz ur scum snitching bitching ass.” Appellant certainly had a reason to consider Salas a “snitch” since she was likely going to be the principal witness against him at his upcoming trial. Similarly, Appellant had a motive to try to prevent her from testifying against him at his trial by making threats to both her and her family. The record fails to suggest anybody else who might have had a similar motive to threaten Salas and her family in the week before Appellant’s trial began.12

What’s more, another of the text messages indicated a belief that the recipient of the message had complained about the sender to the police. Specifically, this message stated: “Ur the pussy u run to the cops after u fuck me over.” Who else other than Appellant might have complained — one week before appellant’s trial — that Salas had “fuck[ed] [him] over” and “run to the cops”? A rational inference is certainly available under the circumstances that Appellant was the author of these profane and threatening text messages.

Finally, it is at least implicit in Salas’ ultimate response (to the question: “How do you know that it was him?”) that she knew it was Appellant who was texting her from his phone because of a contemporaneous call she received' from a person whose voice she recognized to be Appellant’s. She testified that “he had even called in between the conversátions talking mess.” The timing of that phone call (“in between the conversations”) is yet another circumstance which made it reasonable for Salas (and hence, the jury) to conclude that Appellant was the person who controlled the phone at the time that the text messages at issue were generated.

The State could have endeavored to make all of these circumstantial indicia of authenticity more explicit and less ambiguous than it did. However, under the circumstances presented in this case, we cannot agree with the court of appeals that the trial court abused its discretion to conclude that there was sufficient evidence to support a jury finding that the text messages were indeed what the State and Salas purported them to be — namely, a *605text-message exchange between Salas and Appellant.

Appellant insists that, because Salas’s credibility was seriously impeached by the fact that she had given a statement implicating someone other than Appellant in the beating she endured,13 the trial court erred to conclude her testimony could be relied upon to establish his au-' thorship of the text messages. We disagree. Rule 901 provides for authentication “by evidence sufficient to support a finding that the matter is what its proponent claims.” Tex.R. Evid. 901. It requires merely “sufficient” evidence “to support” authentication. It does not ordinarily require the trial court to make a threshold determination of the credibility of the evidence proffered by the proponent to establish authenticity. And as particularly applied to Rule 901(b)(1), it does not contemplate that, as a condition of admissibility, the trial court should have to find that the “witness with knowledge” is necessarily worthy, of belief. Tex.R. Evid. 901(b)(1).

Nothing in Rule 901 suggests that a witness whose credibility has béen questioned in some way is precluded by that fact from sponsoring evidence as a “witness with knowledge.” Id. Even when a trial court judge personally harbors some doubt as to the general credibility of a sponsoring witness, a decision to admit particular evidence sponsored by that witness may not necessarily be outside the zone of reasonable disagreement.14 So long as the ultimate fact-finder could rationally choose to believe the sponsoring witness, and the witness’s testimony would establish that the item proffered “is what its proponent elaims[,]” the trial court will not abuse its discretion to admit it.15 As we said in Tienda, “[t]he ultimate question whether an item of evidence is what its proponent claims [is] a question for the fact-finder — the jury, in a jury trial.” Tienda, 358 S.W.3d at 638.

In this case, the jury could have rationally chosen to believe Salas’s testimony about the text message exchange, despite her equivocation with respect to the offense itself. Salas explained her equivocation at trial, and a rational jury might readily have accepted her explanation as credible. The jury might also have found her testimony about the text-message exchange to be reliable and therefore concluded that Appellant was the one and only author who composed the messages and *606the threats contained therein.16 The trial court’s decision to admit the content of the text messages and leave the ultimate question of authenticity to the jury was well within the zone of reasonable disagreement.

CONCLUSION

Accordingly, we reverse the judgment of the court of appeals and remand the cause to that court to consider any other issues that were properly before the court.17

Johnson, J., concurred in the result.

OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

ODOM, Judge.

Appellant was convicted in two cases of bribery. Punishment was assessed in each case at eight years and a $10,000 fine. The Court of Appeals affirmed the convictions. Garrett v. State, 639 S.W.2d 18. We granted the petition for review to consider the disposition of appellant’s second ground of error.

The jury heard as evidence in these cases a tape recording of a conversation between appellant and one of the state’s witnesses. At the time the tape was played in the courtroom, the jury was allowed to read along a transcript of the recording which the witness who made the recording and who was a party to the conversation testified accurately reflected the conversation and identified the voices on the tape. Appellant’s ground of error which we have agreed to consider complains of the trial court’s decision to allow the jury to use this transcript of the conversation. Specifically, appellant objected at trial:

“... we certainly object to any transcript of such recordings as being a two-phase bolstering. The transcripts I submit to the court and ask the District Attorney to advise me if I’m incorrect, the transcript has been compiled by law enforcement authorities. Secondly, that the tapes are at least portions inaudible and are subject to interpretation and that interpretation is contained in the transcripts. I object to the use of the transcripts in conjunction with the tapes which once again being duplicitous and an attempt to bolster....”

At trial and on appeal appellant relies on Lewis v. State, 529 S.W.2d 533, at footnote 1, where the Court stated:

“We do not approve the State’s offer of its transcribed version of the taped conversation. After all, the tape itself was simply corroborative of Senters’ testimony. Technical imperfections in the reproduction of the conversation did' not authorize the State to submit its version in written form and thereby make the written transcript available to the jury during its deliberations. Art. 36.25, V.A.C.C.P. This was, in essence, bolstering Senters’ version of the conversation. Newton v. State, 147 Tex.Cr.R. 400, 180 S.W.2d 946; 62 Tex.Jur.2d, Witnesses, Section 238, p. 186.”

First we observe that unlike the situation in Lewis, the transcript in this case was not introduced in evidence. It was made available to the jurors only during the playing of the tape. Also, as noted in the opinion of the Court of Appeals, the record reflects that the jury was instructed:

“... I will instruct you that you will only be permitted to use this as you listen to the tape to aid you, if it does, in understanding the contents of the tape. This is a transcript prepared by the State of Texas for your use at this time and you will remember that they caused it to be prepared. If there should be in your mind any variance whatsoever between what you hear on the tape and what you see on the transcript of conversation, you are to remember what is on the tape and not what is on the transcript. These transcripts will be retrieved from you after you have been permitted to use them during the course of listening to the tape. So, don’t depend on the transcript for your later deliberation as you will not be permitted to take the transcript of conversation with you to your jury room. It will be reclaimed from you after the tape has been played. With those limiting instructions I will at this time ask the bailiff to distribute these twelve copies.... ”

Second we observe that the Lewis Court was in error when it stated that use of a transcript of a tape constitutes bolstering. Properly speaking bolstering, as illus*594trated in Newton v. State, supra, and Tex. Jur.2d relied on in the Lewis footnote, involves the use of evidence of prior consistent statements or the like. The use of the transcript under the circumstances presented in this case, having been identified as an accurate rendition of the conversation by a participant in the conversation, is no different than testimony by that witness that the transcribed words were spoken by the participants at the time of his conversation with appellant. Since appellant was a participant in the conversation, it was not a violation of the hearsay rule to prove the conversation.1 Since it was not evidence of some later report about the conversation to a third person, it was not bolstering evidence. Since the transcript was not introduced and not available during jury deliberations, there was no danger of the jury having the evidence before them during deliberations in violation of Art. 36.28, Y.A. C.C.P., and thereby being unduly influenced by it.

Under the circumstances presented in this case we hold it was not error to overrule appellant’s bolstering objection.

The judgment of the Court of Appeals is affirmed.

ONION, P.J., concurs in result.

CLINTON, Judge,

dissenting.

The dearth of authority in the majority opinion, though the State provides a host of decisions it says shows that federal courts have “almost uniformly permitted the use of such transcriptions as aids for the jury when the proper cautionary instructions have been given by the trial judge,” indicates that the Court is not now joining that company. Rather, by holding the trial court did not err in overruling appellant’s “bolstering objection” in “the circumstances presented in this case,” 1 and by not addressing at all his other objection that the tapes are “subject to interpretation and that interpretation is contained in the transcripts,” this Court seems to be reaching a narrow conclusion that is limited to the facts of this cause.

In that I find much solace, for were the majority adopting the federal practice I would be compelled to elucidate competing views capsuled by the Court in Lewis v. State, 529 S.W.2d 533, 535, n. 1 (Tex.Cr.App.1975). Still, I dissent even to the limited holding since it is clear to me that the function of the exercise is for jurors first to determine content of the recordings in order then to comprehend taped conversations which otherwise they were unable to understand in toto.

Moreover, that appellant “was a participant in the conversation” does not, as the majority would have it, remove the conversations from the hearsay rule. There may well be a valid basis for admitting them, but the majority has not found it.

Accordingly, I respectfully dissent.

TEAGUE, J., joins.

OPINION

MILLER, Judge.

Appellant was convicted of the capital murder of an elderly couple, both murders committed in the same criminal transaction. Tex.Penal.Code Ann. § 19.03(a)(6)(A). After the jury answered the three special issues in the affirmative, the trial court sentenced appellant to death. Tex.Code Crim.Proc.Ann. art. 37.071(b). Appeal to this Court is automatic. Tex.Code Crim.Proc.Ann. art. 37.-071(h). We will affirm.

In a dispute over $50.00, appellant shot an elderly couple in their home in Harris County. Appellant does not challenge the sufficiency of the evidence to support his conviction or sentence of death. He presents fourteen points of error for our review.

VOIR DIRE

In his fifth point of error, appellant complains the trial court erred in overruling his challenge for cause of veniremember Traylor. Specifically, appellant asserts Tray-lor was unable to follow the law and nullify his answers to the special issues as instructed where he believed that due to mitigating circumstances the defendant should receive a life sentence rather than the death penalty. We have commonly referred to this instruction as a “nullification” instruction. See n. 11, infra. Essentially this instruction to the jury, notifies the jury that if they believe, due to sufficient mitigating evidence, that the defendant should receive a life sentence rather than death, they are to answer one of the special issues in the negative. See Robertson v. State, 871 S.W.2d 701, 710-711 (Tex.Crim.App.1993).

A defendant may challenge a potential juror for cause where that individual has a “bias or prejudice against any of the law applicable to the case upon which the defense is entitled to rely, either as a defense to some phase of the offenses for which the defendant *833is being prosecuted or as a mitigation therefore or of the punishment therefore.” Tex. Code Crim.Proc.Ann. art. 35.16(c)(2). When reviewing a court’s ruling on a challenge for cause, we review the record as a whole to determine whether there is support for that ruling. Satterwhite v. State, 858 S.W.2d 412, 415 (Tex.Crim.App.1993); Moody v. State, 827 S.W.2d 875, 884 (Tex.Crim.App.), cert. denied, — U.S. -, 113 S.Ct. 119, 121 L.Ed.2d 75 (1992). As the court is in the best position to view the demeanor of the veniremember and to determine his or her credibility, we give great deference to the court’s ruling. Satterwhite, 858 S.W.2d at 415. And absent an abuse of discretion, such a ruling will not be disturbed. Ibid.; Williams v. State, 773 S.W.2d 525, 536 (Tex.Crim.App.1988), cert. denied, 493 U.S. 900, 110 S.Ct. 257, 107 L.Ed.2d 207 (1989). In this instance, no abuse of discretion is shown.

Either as a result of the questions or the complexity of these questions, Traylor indicated a misunderstanding as to his ability to change the answers to the special issues based upon mitigating evidence. However, after being informed of the law and questioned by the court Traylor indicated that he would change his answer to the special issues if based upon that mitigating evidence he believed the defendant should be sentenced to life rather than death. This contradicted his original answers to questions by appellant. We are therefore unable to conclude that the court abused its discretion in its ruling. Appellant’s fifth point of error is overruled.

In the fourth point of error, appellant also contends the trial court erred in attempting to commit veniremember Traylor to a specific set of facts. We need not address appellant’s complaint as he failed to properly preserve error. Again, this questioning concerned Traylor’s ability to “nullify” his answers to the special issues. After questioning by appellant, Traylor indicated an inability to change his answers to the special issues based upon a personal belief the defendant should not be sentenced to death. Appellant challenged Traylor for cause “because I know the judge wants to talk to you right now.” In an attempt to explain the applicable law, the trial court posed several hypothetical questions to Traylor. After a considerable amount of questioning by the trial court (encompassing forty pages of the statement of facts), appellant objected to the trial court's hypothetical and to its attempt to commit Traylor to a particular set of facts. Appellant’s objection was not timely. The objection must be made at the earliest possible opportunity. Martinez v. State, 867 S.W.2d 30, 35 (Tex.Crim.App.1993); Zimmerman v. State, 860 S.W.2d 89, 100 (Tex.Crim.App.1993); Tex.R.App.Proc. 52(a). Appellant’s fourth point is overruled.

In point of error six, appellant contends the trial court erred in overruling his challenge for cause to veniremember Hill because she equated proof beyond a reasonable doubt with proof by a preponderance of the evidence. A potential juror is challenge-able for cause if she is unable to require the State to prove each element of the offense beyond a reasonable doubt.1 Cantu v. State, 842 S.W.2d 667, 682-685 (Tex.Crim.App.1992), cert. denied,-U.S.-, 113 S.Ct. 3046, 125 L.Ed.2d 731 (1993); Lane v. State, 822 S.W.2d 35, 46-48 (Tex.Crim.App.1991), cert. denied,-U.S.-, 112 S.Ct. 1968, 118 L.Ed.2d 568 (1992).

During examination by the State, Hill indicated that to her proof beyond a reasonable doubt means, “[y]ou have to have a lot of proof.” She further stated that she didn’t just have to be satisfied but rather she would have to be “convinced.” Later venire-member Hill stated, in response to a question by appellant, that she would find them guilty if a defendant were only “fifty-one” percent guilty. Based upon this response, appellant challenged Ms. Hill for cause.

The State again questioned potential juror Hill. During this exchange the following questions and answers were elicited:

Q: Ms. Hill, I think one of the very first questions that, or things that we talked about was I was talking to you about beyond a reasonable doubt. I recall you *834telling me something to the effect that you have to be convinced and you have to be sure; and I think you said real sure, if I recall what you said. Is that basically what you said?

A: That’s what I said. Yeah, I have to be sure before I can.

Q: Yeah, you have to be sure.

A: Yeah.

Q: Mr. Cossum was explaining to you the difference between what they do over in the civil court, that’s just a preponderance of the evidence. That just means that, you know, you may have some doubts, they may be real big doubts, but if you think one side has given you more evidence than the other, then you vote for the side that has the most credible evidence, okay. Remember when we talked about in a criminal case this side doesn’t have to do anything at all. You may not hear one word from them. They may never open their mouth, they may not even cross examine the witnesses that I put on. They don’t have to do anything; okay? So that might mean that they have zero on their side as far as evidence, okay? I may be the only one who puts on testimony that you believe. That doesn’t mean that I win the case. It means you listen to the evidence that was presented and then you decide whether you believe, whether you are sure, real sure, like you said, or whether I prove to you- beyond a reasonable doubt that the defendant committed the crime that I allege he has committed in the indictment. You see how that works?

A: Uh-hum.

Q: So it’s not a matter of, okay, they got this much on this side, on the State side, and they have this much on the Defense side, I’m just going to see which one weighs the most. You see how it’s not that process?

A: (Nodded).

Q: It’s something more than that. It’s likening at what I did and determining from what I did if I’ve proven my case to you. And it doesn’t matter what they do. Do you see the difference in the two systems?

A: Uh-hum.

Q: Can you assure us that you will listen to all the evidence, because it may be the Defense puts on no evidence, and if they do, you have to consider that, but that never takes away from what I have to do, and that’s proving to you beyond a reasonable doubt that he committed the crime.

A: Uh-hum.

Q: Can you assure us that whatever beyond a reasonable doubt means to you— and we can’t ask you to give us a certain percentage. As long as you realize that I have to prove to you beyond any reasonable doubt, as long as you understand that and assure us that you will do that, then that’s all you have to be able to do to qualify as a juror. Can you assure us that you can do that?

A: I can.

At this point, the trial court overruled appellant’s challenge for cause, and appellant continued his voir dire of Hill. During further examination though, the veniremember again stated that she would have to be more than “half sure” to convict someone, indicating that she equated proof beyond a reasonable doubt with proof by preponderance of the evidence, that is, both meant greater than fifty percent. Appellant renewed his objection. Again the trial court overruled this objection.

Veniremember Hill’s final testimony equating proof beyond a reasonable doubt with proof by a preponderance of the evidence is troubling. Had there been no other testimony on the subject, she -would have been challengeable for cause. However, reviewing the entire voir dire, we cannot hold that the trial court abused its discretion in overruling appellant’s challenge for cause. Hill stated that she would have to be “real sure” or “convinced” before she would find the defendant guilty. Additionally, when the State explained the differing standards of proof to Hill, she stated she understood the differing burdens in civil and criminal law, and that she would require the State to prove the defendant committed the crime beyond a reasonable doubt. Our review of the record indicates veniremember Hill vacillated in her responses concerning the varying burdens of *835proof. Appellant’s sixth point of error is overruled.

In the seventh point of error, appellant alleges the trial court reversibly erred in denying his request that veniremember Sor-rells explain what “deliberately” meant to her. Appellant asked, “[c]an you tell me what deliberate means to you?” The State objected, and the tidal court sustained this objection.

We have held on numerous occasions that a trial court does not abuse its discretion when it refuses to permit defense counsel from inquiring into a potential juror’s definition of “deliberately.” Trevino v. State, 815 S.W.2d 592, 608-610 (Tex.Crim.App.1991), vacated on other grounds, — U.S.-, 112 S.Ct. 1547, 118 L.Ed.2d 193 (1992); Milton v. State, 599 S.W.2d 824, 826 (Tex.Crim.App.) (en banc), cert. denied, 451 U.S. 1031, 101 S.Ct. 3022, 69 L.Ed.2d 400 (1980); Esquivel v. State, 595 S.W.2d 516, 525 (Tex.Crim.App.) (en banc), cert. denied, 449 U.S. 986, 101 S.Ct. 408, 66 L.Ed.2d 251 (1980); Chambers v. State, 568 S.W.2d 313, 323 (Tex.Crim.App.1978) (en banc), cert. denied, 440 U.S. 928, 99 S.Ct. 1264, 59 L.Ed.2d 484 (1979), overruled on other grounds; see also Battie v. State, 551 S.W.2d 401, 405 (Tex.Crim.App.1977) (No abuse of discretion in refusing counsel from asking potential juror to define “criminal acts of violence.”). The rationale for this prohibition is not that these questions are improper, Gardner v. State, 730 S.W.2d 675, 688 n. 7 (Tex.Crim.App.1987), cert. denied, 484 U.S. 905, 108 S.Ct. 248, 98 L.Ed.2d 206 (1988), but rather if counsel were to be permitted to inquire into the definition of every term during trial, voir dire would become endless. Woolridge v. State, 827 S.W.2d 900, 905 (Tex.Crim.App.1992); Trevino, 815 S.W.2d at 610; Milton, 599 S.W.2d at 826. Appellant was not prevented from propounding questions concerning the difference between “deliberately” and “intentionally.” Specifically because of this fact, we find that the trial court did not abuse its discretion in restricting appellant from inquiring into Sorrells’ definition of “deliberately.” Trevino, 815 S.W.2d at 608-610; Milton, 599 S.W.2d at 826. Appellant’s seventh point of error is overruled.

In appellant’s twelfth point of error, he argues the State’s peremptory challenge to veniremember Stapler was based on racial reasons, in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). To invoke the protections set forth in Batson, appellant must first make a prima facie showing that the State’s use of peremptory challenges is racially motivated. Chambers v. State, 866 S.W.2d 9, 23 (Tex.Crim.App.1993). The burden then shifts to the State to rebut this showing with a race-neutral explanation for its challenge. The defendant may rebut this explanation. The trial court must then determine whether the defendant has established that the State’s challenge was in fact racially motivated. Because the State offered a race-neutral explanation we will not review the trial court’s prima facie ruling, as it is moot. Ibid.

The trial court determined that the State’s challenge was, in fact, not racially motivated. On appeal, this finding of fact is accorded great deference and will not be reversed unless clearly erroneous. Ibid.; Adanandus v. State, 866 S.W.2d 210, 224 (Tex.Crim.App.1993). In this instance we are unable to say the trial court abused its discretion.

The prosecutor challenged Stapler because “she was a weak juror for the state.” One example of this weakness was Stapler’s contradictory answers on her questionnaire and during voir dire. For example, in her questionnaire, Stapler stated that she did not know anyone who had been arrested or imprisoned. However, during voir dire she stated she had second cousins who had been in prison—one for auto theft and the other for a drug offense.2 This vacillation v-as *836cited as one of the reasons the prosecutor believed Stapler would be a “weak” juror.

The prosecutor indicated a second instance of Stapler’s infirmity. Stapler classified herself on her questionnaire as “liberal.” When asked during her voir dire why she classified herself that way, Stapler could not give any reasons for her answer. As appellant points out Stapler “retreated from that description and was ‘nervous that day’ when filling out the form.” In fact, Stapler was unable to indicate any political or social leanings except that she was probably a Democrat because her parents were Democrats. Stapler was thirty-eight.

Stapler’s answers on her questionnaire and her answers to the prosecutor during voir dire differed. A potential juror’s contradiction in his or her answers to questions in questionnaires and during voir dire could indicate an inability to be resolute during deliberations. This might indicate to an attorney that the potential juror would vacillate in his or her verdict during deliberations. This weakness is a sufficient explanation for the State to exercise a peremptory challenge on Stapler. See Satterwhite v. State, 858 S.W.2d 412, 424 (Tex.Crim.App.1993) (prosecutor struck potential juror because “she had failed to fully complete her juror information card.” She had not answered question on previous jury service, and voir dire indicated she had served on both a civil and criminal trial.) Therefore, we are unable to say the trial court was clearly erroneous in denying appellant’s Batson motion. Appellant’s twelfth point of error is overruled.

EVIDENTIARY RULINGS

In his eighth point of error, appellant argues the trial court erred in permitting the State to introduce Detective Stephens’ testimony to impeach appellant. Appellant alleges that Stephens’ testimony in fact amounted to comments on appellant’s post arrest silence in violation of the U.S. Constitution. See Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976); Fletcher v. Weir, 455 U.S. 603, 102 S.Ct. 1309, 71 L.Ed.2d 490 (1982). We need not reach the propriety of this testimony as appellant has failed to preserve error.

Appellant never objected to the testimony of his post arrest silence by the detective during trial on the grounds now urged on appeal. Appellant’s only objection at trial may have been to the voluntariness of his confession.3 However, this objection does not comport with appellant’s complaint on appeal. See Hughes v. State, 1994 WL 124305, at 15 (Tex.Crim.App.1994); San Miguel v. State, 864 S.W.2d 493, 496 (Tex.Crim.App.1993); Camacho v. State, 864 S.W.2d 524, 533 (Tex.Crim.App.1993). Appellant’s eighth point of error is overruled.

In the ninth point of error, appellant contends the trial court erred in excluding testimony concerning an uninvestigated allegation that a second man looked like the composite drawing which purported to represent appellant. Appellant called as a witness, the prosecuting attorney, to examine her concerning a portion of the Houston Police Department offense report. The copy of the handwritten note stated that “Michael Radford used to live on Southford, parents still do, looks like composit (sic).” The prosecutor confirmed the existence of the note, agreed to testify if asked by the court, but *837argued that any statements by her would be hearsay. Additionally, the prosecutor argued that sergeant Ramsey was still available to testify as to his knowledge concerning the note and any follow-up investigation concerning that note.

Appellant contends the statement was relevant to show the district attorney’s office “had information there was someone else with a like composite.” To support his relevance argument, appellant cites several cases in which our Court or other courts of appeals in this state have allowed examination of witnesses concerning misidentification. See Jackson v. State, 551 S.W.2d 351 (Tex.Crim.App.1977); Hill v. State, 783 S.W.2d 257 (Tex.App. — Texarkana 1989, no pet.)

While this may have been relevant, appellant’s argument fails to address the hearsay issue. The prosecutor would have been unable to testify concerning the note or its contents. She did not write the note and she had no knowledge of whether the police had done a follow-up examination of this second individual. “ ‘Hearsay’ is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Tex.Crim.Evid.R. 801(d). The prosecutor’s testimony would have constituted a hearsay statement. The trial court did not abuse its discretion in refusing to admit such testimony. Appellant’s ninth point of error is overruled.

In the tenth point of error, appellant complains he was denied due process of law “when the prosecutor testified at length about the relevance and significance of numerous State’s exhibits.” The exhibits at issue concerned appellant’s extensive criminal background. They included his pen packet, probation records, and juvenile records. After the documents were admitted, the trial court permitted the prosecutor to publish the documents to the jury. At this point the prosecutor began summarizing the contents of these records: “Ladies and gentlemen, at this time I’ll attempt to go through these documents with you to explain what they are and what them significance is.” The prosecutor proceeded to read selected portions of approximately eighteen exhibits which contained appellant’s prior criminal history.

Few Texas cases have ever discussed the manner of “publishing” to the jury written documents which have been admitted into evidence. Oral evidence is heard immediately by the jury, visual evidence is seen immediately by the jury, but written evidence must be presented by some other party or given to the jury before they learn of its substance. ■ There appear to be no logical impediments to reading such evidence either by counsel or witness at the time it is declared admissible.

Common practice in state and federal courts appear to be that when a document is admitted into evidence, counsel4 or a witness 5 can read the document aloud to the jury.6 The rules of evidence7 and authors of *838treatises8 presume this to be the case. This logically follows from the procedure of a ease. Exhibits are marked, identified, and authenticated. The jury, hearing constant references to the document, endures the legal procedure so that they may assimilate the evidence. Upon admission by the trial court, the jury is permitted to access the evidence in some manner. Access to the evidence at the time of its admission permits the parties to build their cases during trial.

There are endless variations on methods of presentation that might be attempted, including stopping a trial to allow the jury to read the exhibit or multiple copies of the exhibit, using an overhead projector to display a copy of the exhibit, or allowing a witness or counsel to read the document to the jury. Rather than cease a trial for an undetermined amount of time, it is sometimes necessary to the orderly presentation of a party’s case to read a selected portion of an admitted exhibit to the jury. The manner and means of the presentation of documentary evidence to a jury is best left to the sound discretion of a trial court. See West, Texas Digest 2d, Criminal Law, § 633(1); cf. Suiter v. State, 165 Tex.Cr.R. 578, 310 S.W.2d 81, 82 (1958) (trial court enjoys broad discretion in the conduct of trial and questioning of witnesses); Deams v. State, 159 Tex.Cr.R. 496, 265 S.W.2d 96, 98 (1954) (trial court has broad discretion in the conduct of trial and examination of witnesses). On appeal, the trial court’s ruling should not be disturbed absent an abuse of discretion.

Upon careful review of the record, we do not believe the trial court abused its discretion in permitting the prosecutor to read portions of the admitted exhibits into evidence.9 Accordingly, appellant’s tenth point of error is overruled.

In appellant’s eleventh point of error, he argues the trial court erred in admitting into evidence a summary of appellant’s violent criminal history. Essentially, this “evidence” consisted of five hand-written pages of appellant’s prior violent and criminal history. The pages contained the dates of each infraction as well as notes describing them. No witness testified individually as to this list. Nor does the record indicate the lists were used as demonstrative evidence. See Speier v. Webster College, 616 S.W.2d 617, 618-619 (Tex.1981) (within the discretion of the trial court, charts or diagrams designed to emphasize the testimony of witnesses are admissible into evidence, assuming the witnesses’ testimony is already before the jury). We are uncertain as to what theory the State was relying upon in their attempt to introduce their summary of the evidence or upon what basis the trial court admitted the exhibits. However, we will address the ground *839upon which the parties apparently relied at trial and on appeal: that the exhibits were used as summaries.

At the conclusion of the State’s case during punishment, and prior to any defense evidence, the State moved to admit these lists as a “summary” of appellant’s prior violent history. The exhibits were admitted over objection. On appeal the State argues these lists were admissible as a summary under Rule 1006 of the Texas Rules of Criminal Evidence. Rule 1006 states:

The contents of voluminous writings, recordings, or photographs, otherwise admissible, which cannot conveniently be examined in court may be presented in the form of a chart, summary, or calculation. The originals, or duplicates, shall be made available for examination or copying, or both, by other parties at reasonable time and place. The court may order that they be produced in court.

While rule 1006 clearly contemplates the admission of summaries in certain instances, the rule in no way indicates that a prosecutor can summarize her case on legal paper and submit those documents to the trial court ⅝⅞ “evidence.”10 The adversarial system permits such summaries by one side during closing arguments, but they are arguments and not admitted as evidence to the jury. Admission of these documents under this theory was clearly error.

Having determined the admission of such “summaries” to be error, we must determine whether that error was harmless beyond a reasonable doubt. Tex.R.App.P. 81(b)(2). Appellant contends harm can be illustrated by the jury’s request during deliberations for the prosecutor’s “exhibits” of violent acts, as well as the fact that there were several mis-characterizations of the evidence contained within the five documents.

While the jury’s request to see the summaries could in some instances indicate harm, in this instance such was not the ease. The State’s evidence concerning Ms past violent acts was extensive. The lists included nineteen instances of past proven criminal activity, ranging from driving with a suspended license to'shooting three individuals, one of which died as a result of these gunshot wounds. All evidence in the exhibits was duplicitous of other evidence already presented during the punishment phase. The jury heard extensive testimony concerning an event in which appellant shot three people, killing one. The eyewitnesses testified that one of those three individuals shot was also stabbed twenty-three times by appellant’s cohort. The state’s exhibits also contained numerous infractions which occurred in various prisons by appellant. Several witnesses testified concerning these altercations at trial.

Appellant also contends that he was harmed because there were several errors in the summary. Appellant basically contests two items in the five page summary. The first error in the summary was a crime listed as an aggravated robbery. In fact, the stipulation of evidence in that case indicated that appellant stole cookies valued between one and five dollars. While the juvenile petition did allege appellant placed the complainant in imminent fear of injury with the use of a knife while he robbed the complainant, that is not evidence of the crime. This juvenile petition was admitted into evidence. However, we do not believe this error was harmful in any way to appellant. The jury was given the actual underlying documents to review which correctly stated for what appellant was convicted, and the jury had been correctly informed this was only an allegation and not the stipulation of evidence when the prosecutor published the documents to the jury. When viewed in the context of the previous statements of the prosecutor and the fact that the jury had access to the underlying documents, we believe this error in the summary was harmless beyond a reasonable doubt.

Appellant also complains of a second error in the summary. Appellant argues the summary incorrectly notes that he stabbed Kenneth Waddell twenty-three times. How*840ever, we do not agree with appellant’s that in light of the evidence presented at trial that this was a logical interpretation. The last item in the summary states,

12-11-90 [Appellant] shoots:

Brenda Parker: in the head & shoulder

David Clouden: in the face

Roland Davis: in the head & abdomen causing his death.

Kenneth Waddell — in the course of the same criminal transaction is stabbed 23 times and shot in the leg.

The first half of this note correctly indicates appellant shot the three named individuals. However, in the second half it states that Waddell was stabbed in the course of the same criminal transaction. The logical interpretation of the separation of the two items and the phrases used would not lead a juror to believe that appellant stabbed Waddell. This is even more true when we review the evidence presented at trial. The jury heard extensive evidence of this crime during punishment. The jury heard eyewitness testimony that appellant shot Parker, Clouden and Davis. They heard testimony that his accomplice had a knife and that the accomplice stabbed Waddell. Therefore, in light of the manner in which the summary described the incident and in light of the evidence presented at trial, we do not believe a reasonable jury would believe appellant stabbed Waddell 23 times.

Therefore because all the evidence presented was duplicitous of other evidence already presented, any error in the admission of this “summary” was harmless beyond a reasonable doubt. Tex.R.App.P. 81(b)(2). Appellant’s eleventh point of error is overruled.

CHARGE ISSUES

In appellant’s first point of error, he contends the trial court erred in refusing to submit a special issue concerning mitigation. Rather than submit the requested third special issue, the trial court included a “nullification” instruction in the punishment charge.11 We have held these instructions are sufficient to meet the constitutional requirements of Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989). Robertson, 871 S.W.2d at 710-711; Coble v. State, 871 S.W.2d 192, 206-207 (Tex.Crim.App.1993), cert. filed; San Miguel v. State, 864 S.W.2d 493, 495 (Tex.Crim.App.1993).

Appellant argues the “nullification” charge calls for the jurors to act against their natural inclinations by asking them to alter one of their answers to the special issues. Therefore, the charge enhanced the risk of an unwarranted sentence of death. To support this argument, appellant cites to Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980). However, we believe Beck is inapplicable to the issue at hand. In Beck, the Supreme Court reversed an Alabama capital conviction because a state statute improperly prevented a trial court from including a lesser included non-capital offense. The Supreme Court recognized the difficulty presented to a jury where then-only choice lies between conviction of a capital offense where the death sentence appears mandatory and acquittal of that offense. Beck, 447 U.S. at 642-643, 100 S.Ct. at 2392-2393. The unavailability of the third option may encourage the jury to convict a defendant for an “impermissible reason — its belief that the defendant is guilty of some serious *841crime and should be punished” or the jury may acquit the defendant for an “equally impermissible reason—that whatever his crime, the defendant does not deserve death.” Ibid.

Appellant contends a jury would be likely to resolve any doubts in favor of its initial answer, rather than changing and nullifying one of those answers. However, we do not agree with appellant that such would be the case. Unlike in Beck, the jury is given a middle ground for their deliberations. Where a jury’s reasoned moral response was that the defendant should not be sentenced to death they may give effect to such a belief through the judge’s “nullification” instruction. This prevents the jury from being placed in the precarious position of answering the special issues when they believe a defendant committed the act deliberately, without provocation, and is a future danger, but they also believe that defendant should not be sentenced to death. The “nullification” instruction was sufficient to meet these constitutional commands. Appellant’s first point of error is overruled.

In point of error two, appellant argues the trial court erred in its wording of the third special issue concerning provocation. Tex.Code Crim.Proc.Ann. art. 37.-071(b)(3). Over objection, the trial court submitted the following special issue to the jury:

Do you believe beyond a reasonable doubt the conduct of the defendant, Daryl Keith Wheatfall, in killing the deceased, James M. Fitzgerald, Sr., and the deceased, L.B. Fitzgerald, was unreasonable in response to the provocation, if any, by the de-ceaseds?

At issue is the trial court’s inclusion of Mrs. Fitzgerald in the special issue. Appellant accurately points out that when a defendant is convicted of capital murder pursuant to section 19.03(a)(6) of the penal code, the court should submit the special issues “only with regard to the conduct of the defendant in murdering the deceased individual first named in the indictment.” Tex.Code Crim. Proc.Ann. art. 37.071(f). In this instance Mr. Fitzgerald, Sr. was the first named in the indictment. Therefore, the trial court erred in including Mrs. Fitzgerald in the special issue. Consequently, twe must determine whether the court’s error harmed appellant: Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.1984) (on rehearing); Tex.R.App. Proc. 81(b)(2).

Appellant contends that while the addition of Mrs. Fitzgerald was added to increase the State’s burden of proof, that was not the effect. Appellant argues that because Mrs. Fitzgerald was “old and frail” the State wanted the jury to focus on the reasonableness of appellant’s conduct with regal'd to Mrs. Fitzgerald and not her husband. However, appellant can point to no evidence of provocation beyond a mere unsubstantiated supposition that Mr. Fitzgerald may have done something to provoke appellant. The only evidence of provocation by Mr. Fitzgerald is that when he was seated in the living room, he stood up and walked towards an exit in the back of the room and away from appellant despite orders to the contrary from appellant. Appellant’s accomplice followed him, and escorted him back to the couch at gunpoint. There is also evidence that there may have been a struggle between the accomplice and Mr. Fitzgerald. However, this struggle, if it occurred, was concluded prior to appellant’s shooting of Mr. Fitzgerald. There is no evidence that Mr. Fitzgerald provoked appellant in any manner, therefore, the trial court was not required to submit the special issue concerning provocation. As no special issue was necessaiy, appellant was not harmed by the erroneous inclusion of the instruction in the charge. Appellant’s second point of error is overruled.

In appellant’s third point of error, he complains the capital punishment proceedings violated the Eighth and Fourteenth Amendments of the United States Constitution because the trial court instructed the jury that they were “not to be swayed by mere sentiment, conjecture, sympathy, passion, prejudice, public opinion or public feeling in considering all the evidence before you and in answering the special issues.” Specifically, appellant complains an instruction to the jury to disregard “sympathy” violates Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989).

*842This is our first opportunity to determine the constitutionality of an antisym-pathy charge. Initially, we note the trial court’s charge was sufficient to meet Penry ⅛ commands concerning mitigating evidence. Where a jury charge is sufficient to meet the commands of Penry, it does not violate the Eighth or Fourteenth Amendments of the United States Constitution to instruct the jury “not to be swayed by mere sentiment, conjecture, sympathy, passion, prejudice, public opinion or public feeling in considering” the evidence and answering the special issues.12

The trial court’s instruction in this case is virtually identical to the instruction upheld in California v. Brown, 479 U.S. 538, 107 S.Ct. 837, 93 L.Ed.2d 934 (1987). Appellant, similar to the California Supreme Court, errs in focusing his argument on the particular word “sympathy.” Brown, 479 U.S. at 541, 107 S.Ct. at 839. As the Supreme Court noted,

By concentrating on the noun “sympathy,” respondent ignores the crucial fact that the jury was instructed to avoid basing its decision on mere sympathy. Even a juror who insisted on focusing on this one phrase in the instruction would likely interpret the phrase as an admonition to ignore emotional responses that are not rooted in the aggravating and mitigating evidence introduced during the penalty phase.

Brown, 479 U.S. at 542, 107 S.Ct. at 840.

By limiting a jury’s emotional response to our special issues, a trial court limits emotional responses in favor of the defendant and in favor of the victims of the crime. However, it does not follow that by limiting a juror’s sympathy towards the defendant the court is also limiting that juror’s consideration of evidence which may mitigate against the imposition of the death penalty. As Justice O’Connor explicated in her concurring opinion in Brown,

Because the individualized assessment of the appropriateness of the death penalty is a moral inquiry into the culpability of the defendant, and not an emotional response to the mitigating evidence, I agree with the Court that an instruction informing the jury that they “must not be swayed by mere sentiment, conjecture, sympathy, passion, prejudice, public opinion or public feeling” does not by itself violate the Eighth and Fourteenth Amendments to the United States Constitution.

479 U.S. at 545, 107 S.Ct. at 841 (O’Connor, J. concurring). Because this instruction does not limit the juror’s consideration of mitigating evidence, the instruction does not run afoul of Penry, supra.

Appellant’s contention strikes at how our state courts can guide a jury’s consideration of mitigating evidence. In Saffle v. Parks, 494 U.S. 484, 110 S.Ct. 1257, 1259, 108 L.Ed.2d 415 (1990), the Supreme Court considered whether a jury could be instructed to “avoid any influence of sympathy.” While this instruction appears more troubling, the Court held Pai’ks was not entitled to relief because to grant Parks relief would be to create a “new rule” of constitutional law under Teague v. Lane, 489 U.S. 288, 301, 109 S.Ct. 1060, 1070, 103 L.Ed.2d 334 (1989) (plurality opinion) and Penry, supra. However, in denying Parks relief, the Court explained:

Parks asks us to create a rule relating, not to iohat mitigating evidence the jury must be permitted to consider in making its sentencing decision, but to hoiv it must consider the mitigating evidence. There is a simple and logical difference between rules that govern what factors the jury must be permitted to consider in making its sentencing decision, and rules that govern how the State may guide the jury in considering and weighing those factors in reaching a decision. We thus cannot say that the large majority of federal and state courts that have rejected challenges to an-tisympathy instructions similar to that given in Parks’ trial have been unreasonable in concluding that the instructions do not violate the rule of Lockett [v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978) ] and Eddings [v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982) ].

*843 Parks, 494 U.S. at 490, 110 S.Ct. at 1261. We hold the antisympathy instruction in this ease does not violate the Eighth or Fourteenth Amendments nor does it violate the Supreme Court’s commands in Penry, supra. 13

Appellant also contends that we should consider the changing membership of the Supreme Court in our review of their precedent. To accept appellant’s proposition, this Court would be forced to reconsider every decision of the Supreme Court or our Court upon changes in membership. Such an endeavor would defeat one of the essential purposes of stare decisis. See Burnet v. Coronado Oil and Gas Co., 285 U.S. 393, 406, 52 S.Ct. 443, 447, 76 L.Ed. 815 (1932) (Brandeis, J., dissenting) (“fSJtare decisis is usually the wise policy, because in most matters it is more important that the applicable rule of law be settled than that it be settled right.”); State v. Gonzalez, 855 S.W.2d 692, 696 (Tex.Crim.App.1993) (“The doctrine of stare deci-sis requires a compelling reason to change an accepted standard of review.”); Gearheart v. State, 81 Tex.Cr.R. 540, 197 S.W. 187, 188-189 (1917) (“[W]hen a rule has been once deliberately adopted and declared and uniformly followed, it should not be abandoned except upon the most urgent reasons.”); B. Cardozo, The Nature of the Judicial Process 150 (1921) (“The situation would ... be intolerable if the [periodic] changes in the composition of the court were accompanied by changes in its rulings. In such circumstances there is nothing to do except to stand by the errors of our brethren of the [time] before, whether we relish them or not.”). We refuse to depart from stare decisis on these grounds. Appellant’s third point of eiTor is overruled.

Appellant’s judgment of conviction is affirmed.

CLINTON, J., concurs in the result.

BAIRD, Judge,

concurring.

I cannot join that portion of the majority opinion addressing of appellant’s seventh point of error. Majority op. at 835. Appellant contends the trial judge erred in denying his request of veniremember Sorrell to explain what “deliberately” meant to her. The majority states:

... The rationale for this prohibition is not that these questions are improper but rather that if counsel were to be permitted to inquire into the definition of every term during trial, voir dire would be endless.

Majority op. at 835. (Citations omitted and emphasis added.).

In support of this statement the majority relies on Woolridge v. State, 827 S.W.2d 900 (Tex.Cr.App.1992). However, Woolridge does not support the majority’s position. In Woolridge, we addressed the issue of whether the trial judge had abused his discretion in refusing to permit the defendant to question the venire on the meaning of reasonable doubt. Id., 827 S.W.2d at 904. In Woolridge the State argued that to allow questioning of the each prospective juror of undefined terms would unnecessarily prolong the voir dire process. Id., 827 S.W.2d at 905. And that is the position now taken by the majority. However, we expressly rejected that argument in Woolridge.

We recognize that any proper question has the potential to lengthen the voir dire portion of the trial. However, it is improper for a trial judge to impose restrictions based on the mere possibility that the otherwise proper question might lengthen then process. The trial judge must first allow the question, and may later curtail similar questions if the voir dire process proves to be unduly lengthy. See Battie, 551 S.W.2d at 403. Also, trial judges may prohibit an otherwise proper question *844which substantially repeats others posed by the same party, Allridge v. State, 762 S.W.2d 146, 167 (Tex.Cr.App.1988), or when the prospective juror has stated his position clearly, unequivocally, and without reservation. Phillips v. State, 701 S.W.2d 875, 889 (Tex.Cr.App.1985).

Additionally, the fact that no definition will be provided for a term does not render a prospective juror’s understanding of that term irrelevant. To the contrary, that understanding becomes more crucial to the intelligent exercise of either the State’s or the defendant’s peremptory challenges because there is no definition to guide what could be a juror’s skewed perception of the term.

Id., 827 S.W.2d at 905-906.

In the instant case, the State does not argue that the objections should have been sustained. Indeed, the State seems to acknowledge that the trial judge erred in not permitting the questions but the State argues the error was harmless because Sorrell subsequently answered the questions posed by appellant and stated what deliberate meant to her:

The terms [intentionally and deliberately] are so close. Intent meaning that you realize what’s going to happen, that I don’t know if the difference is in the malice involved or the amount of forethought in planning. That’s the only thing that I can see is the difference between intent and deliberate.

In the instant case, as in Woolridge, I would hold the inquiry of Sorrell was proper because it sought to discover her views on an issue applicable to appellant’s trial, was not repetitious, and was not in an improper form. However, since Sorrell eventually answered the question, appellant was not denied of his light to intelligently exercise his peremptory challenges.

With these comments, I concur only in the disposition of the seventh point of error and join the remainder of the opinion.

OPINION

KELLER, J.

delivered the opinion of the Court,

in which McCORMICK, P.J., and MANSFIELD, PRICE, HOLLAND, WOMACK, and KEASLER joined.

Appellant was convicted and sentenced to death for a capital murder committed in *851June 1996. Tex. Penal Code § 19.08 and Tex. Code Crim. Proc. Art. 37.071.1 Appeal is automatic to this Court. Tex. Const. Art. I, § 5; Art. 37.071. Appellant raises nineteen points of error. We will affirm.

In his first point of error, appellant argues the trial court erred in denying his motion for mistrial. Near the conclusion of jury selection, the State informed appellant of its discovery and intent to use incriminating DNA evidence. Appellant moved the trial court for mistrial on grounds that because of the state’s tardy disclosure, he had lost the opportunity to examine the venire regarding DNA evidence and thereby had lost the intelligent use of his peremptory strikes. Appellant alleged that prior to jury selection, he had requested notice of all scientific evidence which the State anticipated introducing and had formulated his jury selection strategy on the State’s representations, including the representation that they had not discovered any incriminating DNA evidence. Appellant’s motion for mistrial was denied.

The State asserts that before jury selection, it had informed appellant that though they had not discovered any incriminating DNA evidence, DNA testing was being conducted and that results had at that point not been prejudicial. But according to the State, it also informed appellant that it was conducting further testing on an article of the victim’s clothing. That appellant had this information is confirmed by his own arguments when he moved for mistrial. Citing Smith v. State, 676 S.W.2d 379 (Tex.Crim.App.1984), the State asserts that under these facts it is clear that appellant’s decision not to examine the venire regarding DNA evidence was a strategic choice.

Appellant frames his claim in terms of proper questions not allowed, but in fact no such questions were propounded. Therefore, we cannot accept this categorization of this issue. We must instead review the question as what in fact it was, i.e., a denial of a motion for mistrial. The denial of a motion of mistrial is reviewed under an abuse of discretion standard. State v. Gonzalez, 855 S.W.2d 692, 696 (Tex.Crim.App.1993).

In presenting his claim to the trial court, appellant’s counsel admitted that the State had informed him before jury selection of its continuing DNA tests on the victim’s clothing. Counsel admitted that since none of the DNA testing had been incriminating, he decided to “let it go.” Id. Counsel’s decision not to query the venire regarding DNA evidence was a strategic decision and the product of neither prosecutorial misconduct nor trial court error. Under these facts, we cannot hold that the trial court abused its discretion in denying appellant’s motion. Appellant’s first point of error is overruled.

In his second point appellant argues that the evidence was insufficient to corroborate accomplice witness testimony. Art. 38.14.2 “The accomplice witness rule is satisfied if there is some non-accomplice evidence which tends to connect the accused to the commission of the offense alleged in the indictment.” Hernandez v. State, 939 S.W.2d 173, 176 (Tex.Crim.App.1997)(emphasis in original). The non-accomplice evidence need not itself be sufficient to establish the accused’s guilt beyond a reasonable doubt. Id. And, while the accused’s mere presence at the scene of the crime is insufficient, by itself, to corroborate accomplice witness testimony, “evidence of such presence, coupled with other suspicious circumstances, may *852tend to connect the accused to the offense.” Dowthitt v. State, 931 S.W.2d 244, 249 (Tex.Crim.App.1996).

In his brief, appellant lists the evidence connecting him to the crime: (1) DNA evidence that did not exclude appellant as the source of a blood stain on the victim’s panties, (2) appellant’s fingerprints in the vehicle used to transport the victim to Espada Park, and (3) fiber evidence from appellant’s pants found on the victim’s clothes. While appellant concedes that this evidence connected him to the crime scene, he contends that there was no evidence that connected him to the murder or sexual assault of the victim. We disagree. While the fingerprint evidence may have merely established appellant’s presence at the crime scene, the presence of appellant’s blood3 on the victim’s panties and appellant’s pant fibers on the victim’s clothes tends to connect him to the crime itself. The logical inference from these two items of evidence is that appellant had intimate contact with the victim and may have suffered defensive wounds. In other contexts, we have observed that the presence of blood, linked in some way to the defendant, was some evidence tending to connect the defendant to the offense. Dowthitt, 931 S.W.2d at 244 (beer bottle with defendant’s fingerprint and victim’s blood on it); Gosch v. State, 829 S.W.2d 775, 781 (Tex.Crim.App.1991), cert. denied, 509 U.S. 922, 113 S.Ct. 3035, 125 L.Ed.2d 722 (1993)(blood of victim’s blood type found on the defendant’s blue jeans). Although these cases involved finding the victim’s blood on items belonging to the defendant, the connection is equally obvious when the defendant’s blood is found on items belonging to the victim. While appellant observes that there were no semen deposits by him on the victim and that no non-accomplice evidence connected him to the murder weapon, the absence of such “smoking gun” evidence does not somehow invalidate the evidence that does connect him to the offense. The combination of the three items listed above is more than sufficient to tend to connect appellant to the offense. As we have previously held, “[e]ven apparently insignificant incriminating circumstances may sometimes afford satisfactory evidence of corroboration.” Dowthitt, 931 S.W.2d at 249 (citing Munoz v. State, 853 S.W.2d 558, 559 (Tex.Crim.App.1993)). Such is the case here. Appellant’s second point of error is overruled.

In his third, fourth and fifth points of error, appellant argues that the trial court erred in admitting various hearsay assertions made by Juan Gonzales. Specifically, appellant complains of Gonzales’ assertion that when he told appellant that the police wanted to talk to him, appellant told him not to say anything to the police. This is the subject of appellant’s third point of error. Gonzales also said that as the conspirators drove away from the scene of the crime, Santos Cervantes commented to appellant that it was cool how he (appellant) had snapped her neck and used the knife. This is the subject of appellant’s fourth point of error. Gonzales said further that appellant responded to Cervantes’ comment with the statement “I learned how to kill people in prison.”4 This is the subject of appellant’s fifth point of error. We will address appellant’s own statements first as they raise a different legal issue.

Appellant argues that his own alleged statements were rank hearsay, not admissible under any hearsay exception. Tex.R. Evid. 801 et seq. 5 The State re-*853sponds that appellant’s statements were not hearsay but admissions by a party-opponent. Tex.R. Evid. 801(e)(2). The State correctly argues that Rule 801(e)(2)(A) plainly and unequivocally states that a criminal deféndant’s own statements, when being offered against him, are not hearsay. See also Drone v. State, 906 S.W.2d 608, 611 (Tex.App.—Austin 1995, pet. ref'd); Cunningham v. State, 846 S.W.2d 147 (Tex.App.—Austin 1993) aff'd on other grounds, 877 S.W.2d 310 (Tex.Crim.App.1994). This rule recognizes that the out-of-court statements of a party differ from the out-of-court statements of non-parties, and raise different evidentiary concerns. See Bingham v. State, 987 S.W.2d 54, at 56-57 (Tex.Crim. App.1999); Bell v. State, 877 S.W.2d 21, 25 (Tex.App.-Dallas 1994, pet. ref'd). A party’s own statements are not hearsay and they are admissible on the logic that a party is estopped from challenging the fundamental reliability or trustworthiness of his own statements. Id. 55 STEVEN GOODE, OLIN GUY WELLBORN III & M. MICHAEL SHARLOT, GUIDE TO THE TEXAS RULES OF EVIDENCE: CIVIL AND CRIMINAL § 801.7 (Texas Practice 1993). Though our cases have sometimes failed to recognize this aspect of a party’s own statement, we here disavow any precedent indicating that the statement of a party, when being offered against him, is hearsay. E.g., Green v. State, 840 S.W.2d 394, 411-412 (Tex.Crim.App.1992); Bryan v. State, 837 S.W.2d 637 (Tex.Crim.App.1992) and compare Davis v. State, 961 S.W.2d 156, 161 (Tex.Crim.App.1998)(Womack J. concurring); Banks v. State, 643 S.W.2d 129, 134 (Tex.Crim.App.1982). And we note that party admissions, unlike statements against interest, need not be against the interests of the party when made; in order to be admissible, the admission need only be offered as evidence against the party.

Accordingly, we agree with the State that Juan Gonzales’ testimony that appellant told him not to say anything to police and that appellant received his co-conspirator’s compliments with the assertion that he had learned to kill in prison, were admissible undér Rule 801(e)(2)(A) as the admissions of a party. Appellant’s third and fifth points of error are overruled.

Cervantes’ statement is also admissible under Rule 801(e)(2). Cervantes’ assertion apparently meant that appellant had snapped the victim’s neck. Because appellant indicated his agreement with the assertion that he learned to kJl in prison, Cervantes’ statement is not hearsay but an adopted admission, admissible under Rule 801(e)(2)(B). Cantu v. State, 939 S.W.2d 627, 635 (Tex.Crim.App.1997). Appellant’s fourth point of error is overruled.6

In his sixth point of error, appellant challenges the sufficiency of the evidence to sustain an affirmative answer to the second special issue, i.e., “whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society.” Article 37.071 § 2(b)(1). The State argues that the heinous facts of this case alone suffice to establish appellant’s dangerousness and, alternatively, that the evidence introduced at punishment was sufficient to establish future dangerousness beyond a reasonable doubt.

In reviewing the sufficiency of the evidence on this issue we ask whether, in the light most favorable to the verdict, any rational trier of fact could have found beyond a reasonable doubt that there is a probability that appellant would commit criminal acts of violence constituting a con*854tinuing threat to society. Chambers v. State, 866 S.W.2d 9, 16 (Tex.Crim.App.1993). In this light, the evidence establishes that after a history of crime, albeit non-violent, appellant was sentenced to six years in prison and was paroled from this sentence on May 10,1996. While in prison he had been placed on administrative segregation for his involvement in a violent racist prison gang, Los Pistoleros Latinos. On June 10, 1996, only one month after being paroled, appellant and four others picked up a fifteen-year-old girl at a convenience store, took her to an isolated park, brutally gang raped her—in the course of the offense, appellant encouraged his fifteen-year-old cousin to join in, but the cousin refused—and then appellant cut the victim’s throat, so as to not leave witnesses. Cervantes complimented appellant on his use of a knife, and appellant asserted “he had learned how to kill people in prison.”

We have previously held that a finding of future dangerousness can be supported by evidence showing “an escalating pattern of disrespect for the law.” King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App.1997). In King, prior to the capital murder for which he was on trial, the defendant had committed burglary while on parole from theft charges. Id. We found that such an escalation of crimes established an escalating pattern of disrespect for the law from which a rational jury could draw an inference of future dangerousness. Id. While in King we did not specifically attribute significance to the fact that the burglary was committed while King was on parole, we find that the jury could have considered as evidence of future dangerousness the fact that appellant was on parole when he committed this crime.

Moreover, a jury can rationally infer future dangerousness from the brutality of the offense. Sonnier v. State, 913 S.W.2d 511, 517 (Tex.Crim.App.1995). We have in the past found the circumstances surrounding the crime to be “horrendous” when the crime was a gang rape and murder of two girls. Cantu v. State, 939 S.W.2d 627, 642 (Tex.Crim.App.), cert. denied, U.S. , - U.S. -, 118 S.Ct. 557, 139 L.Ed.2d 399 (1997). The gang rape and throat-cutting murder of the fifteen-year-old girl in this case also strikes us as being a particularly brutal crime, evidencing “a most dangerous aberration of character” supporting a jury’s affirmative finding of future dangerousness. See Sonnier, 913 S.W.2d at 517.

Finally, future dangerousness can be inferred from evidence showing a lack of remorse and/or indicating an expressed willingness to engage in future violent acts. Rachal v. State, 917 S.W.2d 799, 806 (Tex.Crim.App.), cert. denied, 519 U.S. 1043, 117 S.Ct. 614, 136 L.Ed.2d 539 (1996). Appellant’s statement after the murder that he “learned to kill in prison” indicates at least an initial lack of remorse for the killing and also that he was prepared to kill in the future. Moreover, rather than dissuade his younger cousin from the life of crime he had chosen for himself, appellant attempted to bring him into that world of crime. We conclude that there was sufficient evidence from which a rational jury could conclude that appellant would probably commit future acts of violence that would constitute a continuing threat to society. Appellant’s sixth point of error is overruled.

Appellant’s seventh and eighth points of error voice his contentions that the trial court erred in admitting into evidence the oath of Los Pistoleros Latinos, a document which outlines the racial qualifications and the goals and obligations of gang members. The document was introduced at punishment to educate the jury on the nature of appellant’s gang association. Appellant argues in point seven that the document was irrelevant and more prejudicial than probative. Tex.R. Evid. 402 & 403. And in point eight appellant argues the admission of this evidence violated his right to due process. The State responds that appellant’s arguments on *855appeal do not comport with his objection at trial. The record supports the State.

At trial appellant objected only on grounds that the proper predicate had not been laid for the testimony. When that objection was sustained and the State laid its predicate, appellant renewed his objection “on the same grounds” but never argued that the evidence was irrelevant, prejudicial or in violation of due process. On these facts we must agree with the State that appellant’s arguments have not been preserved for review. E.g., Turner v. State, 805 S.W.2d 428, 431 (Tex.Crim.App.1991) (to preserve an issue for appellate review, the point of error must at least minimally comport with the objection at trial). Appellant’s seventh and eighth points of error are overruled.

In points nine through nineteen appellant challenges the constitutionality of the Texas death scheme on grounds which have been repeatedly rejected. We have reviewed his claims and find that they are without merit. Points of error nine through nineteen are overruled.

The judgment of the trial court is AFFIRMED.

MEYERS, J. filed a concurring opinion.

JOHNSON, J. concurred in the result.

MEYERS, J.,

delivered this concurring opinion.

I write to register my disagreement with the majority’s observation in connection with appellant’s point of error six that “the jury could have considered as evidence of future dangerousness the fact that appellant was on parole when he committed this crime.” Majority opinion at 854. The majority says our opinion in King v. State, 953 S.W.2d 266 (Tex.Crim.App.1997), did not “specifically” place significance on such fact, but suggests it was implied. I see no such implication there:

There are several reasons that the admission of the case summaries and disciplinary reports was harmless. First, the properly admitted judgments of appellant’s prior convictions showed, chronologically, convictions for theft, theft, and burglary of a habitation. Appellant committed the burglary of a habitation while on parole from the theft charges. While theft and burglary are not the most violent of crimes, going from theft to burglary of a habitation shows an escalating pattern of disrespect for the law from which a jury could draw an inference of future dangerousness ....

King, 953 S.W.2d at 271.

Apart from the fact that the majority’s comment has no basis in law, neither do I see a basis in logic. How is the fact that a defendant is serving parole at the time he commits another offense evidence of future .dangerousness?1 Certainly, evidence of the prior offense for which the defendant is on parole is probative of future dangerousness. But why is the fact that the defendant is serving community supervision while committing another crime more probative of future dangerousness than if the defendant serves out his term and then commits another crime? Why is it worse for a parolee to commit a crime than it is for a former felon to commit a crime? Of course a parolee is not supposed to commit crimes while on parole. But neither is anyone supposed to commit crimes. I just don’t get it. At any rate, the majority does not explain its “finding” that a jury could consider such evidence as probative of future dangerousness.

With these remarks, I concur in the judgment.

OPINION

TOM G. DAVIS, Judge.

Appeal is taken from a conviction for murder. After the jury found appellant guilty, the court assessed punishment at fifty years.

In his first ground of error, appellant challenges the sufficiency of the evidence to support the conviction. The State relied on circumstantial evidence.

Peter Dzwonczyk testified that he and his wife went to the home of the deceased, Fannie Kimball, at 5:30 p. m. on October 26, 1976. He stated that the deceased ran a boarding house on Austin St. in Houston. The deceased, seventy-three years old at the time of her death, had five tenants upstairs and a garage apartment at the rear of the house. The deceased lived in the downstairs portion of the house. Appellant lived upstairs as a tenant.

Dzwonczyk related that he knocked on the door of the home and no one answered. However, he was able to hear moaning sounds from the kitchen area. Once he gained access to the house, he found the deceased lying in a pool, of blood on the floor of the kitchen. Dzwonczyk stated that blood was splattered on the walls of the kitchen and that the left side of the deceased’s head was “smashed in.” With the help of a tenant, Clifton Harris, the police and an ambulance were summoned to the scene.

The deceased was taken to Ben Taub Hospital where she eventually died on November 2, 1976, having never regained consciousness. The parties stipulated that the deceased died as a result of blunt trauma to the head. Dr. Joseph Jachimczyk, Chief Medical Examiner for Harris County, testi*927fied that the injuries inflicted on the deceased were consistent with having been beaten several times on the head with a hammer.

Anna Lorenz testified that she lived next door to the deceased. She stated that appellant and the deceased had reached an agreement whereby in exchange for repair and remodeling work, appellant was given room and board.

Lorenz stated that on the morning of the offense, she was at the deceased’s home when appellant came into the room and told the deceased that she was a “liar, thief, and hypocrite.”

Birdie Guy testified that she worked as a maid for the deceased from 10:00 a. m. until 5:00 p. m. on the day of the offense. Guy stated that while she was at work that day, she did not see any of the tenants. She stated that she did not go into appellant’s room on the day of the offense. The last time Guy saw the deceased, she was sitting in a chair shelling pecans. It was later shown that the deceased would often use a hammer whenever she shelled pecans.

Officer T. R. Cunningham, of the Houston Police Department, testified that he arrived at the deceased’s home at 6:10 p. m. He stated that approximately thirty minutes later, appellant came downstairs from his room and walked out the door without saying anything to the police officers in the house. Cunningham then told appellant that he would have to stay at the house until the investigation had been completed.

Appellant then came back into the house and sat down at the kitchen table. Cunningham noticed what he described as two fresh scratches on appellant’s face which were still bleeding. Appellant was dressed in fresh clothing and appeared to have recently shaved and showered. Appellant was wearing a wig.

Cunningham then saw a hammer in a sink located in the kitchen. Water was running from the faucet onto the hammer. Officer M. L. Williams, of the Houston Police Department, testified that small pieces of what he thought to be human flesh were in the sink. He further stated that the hammer appeared to have blood on it and that a substance resembling watered down blood was running down the drain.

Approximately one and one half hours later, Officer J. H. Binford, of the Houston Police Department, obtained appellant’s consent to search his room upstairs. Inside the room, Binford found two shirts which appeared to have blood smeared on them. He also found a pair of leather gloves, one of which was moist with a substance Bin-ford believed to be blood.

The evidence gathered at the scene of the offense was then turned over to Robert Warkentin, a chemist employed by the Houston Police Department. Warkentin testified that he performed a modified ben-zidine test on the hammer, shirts, and gloves. The test result was positive for the presence of blood on these items. He further stated that hair was found on the hammer and one of the shirts. One of the hairs taken from the shirt had characteristics identical to a hair sample taken from the deceased.

Two days later, Warkentin accompanied officers to appellant’s room. Inside the room, Warkentin found a pair of shoes which tested positive for the presence of blood. Warkentin stated that the substance on the shoes had dried and formed a crust along a crease in the shoe. He related that the fact that the crust was still intact at a flexing point for the shoe indicated that the shoes had not been worn since the substance dried on them. Evidence at trial established that appellant had been incarcerated in the Harris County Jail since the time of his arrest on October 26, 1977.

On December 1,1977, Warkentin received two bed sheets which had been found in appellant’s room by a woman who was helping with the estate of the deceased. Wark-entin testified that a large smear of dried blood was found at one end of one of the sheets.

Appellant testified that he moved into the home of the deceased in June of 1976 after the deceased agreed to provide room *928and board for him if he would do various repair and remodeling jobs around the house. In doing these remodeling jobs, appellant related that he would sometimes use the deceased’s tools. He stated that he had been up in his room the entire day of the offense except for a brief trip to the store to call in sick for work. Appellant worked part-time as a cab driver for the Yellow Cab Company in Houston.

Appellant stated that when he was detained by Officer Cunningham, he had just finished shaving and had cut his face. He related that the blood on the shirts was the result of wiping his face off after he cut himself. Appellant explained that the gloves found in his room had grease on them. He further stated that the shoes which Warkentin had examined were often worn in the garage of Yellow Cab while he was at work.

Lastly, appellant denied having had an argument with the deceased in the presence of Lorenz. He related that he knew nothing about the manner in which the deceased had been murdered.

Robert Weir, a chemist, was called as a witness by appellant. Weir stated that he was familiar with the benzidine test which Warkentin had performed on the various items of physical evidence. Weir stated that in his opinion, the test was not conclusive for the presence of blood on an object. He related that substances such as lead oxide found in gasoline could cause a false. reaction in the test and indicate the presence of blood.

On cross-examination, Weir stated that the modified benzidine test which Warken-tin had used is approximately 30 percent more accurate than the standard test to which he was referring on direct examination. He further stated that he had never known of gasoline to dry and form a crust or flaky substance such as found on appellant’s shoes. Appellant did not have Weir examine the physical evidence found in his room, thus, Weir could not state that Wark-entin’s opinion that the objects had blood on them was erroneous.

A conviction based on circumstantial evidence cannot be sustained if the circumstances do not exclude every other reasonable hypothesis except that of guilt of the defendant. Schershel v. State, Tex.Cr.App., 575 S.W.2d 548; Bryant v. State, Tex.Cr.App., 574 S.W.2d 109. Thus, proof which amounts only to a strong suspicion or mere probability is insufficient. Ford v. State, Tex.Cr.App., 571 S.W.2d 924. However, every circumstantial evidence case must necessarily be tested by its own facts to determine the sufficiency of the evidence to support the conviction. Earnhart v. State, Tex.Cr.App., 575 S.W.2d 551.

Appellant maintains that based on the evidence, there is merely a possibility or suspicion that he committed the offense. He relies on Stogsdill v. State, Tex.Cr.App., 552 S.W.2d 481; Flores v. State, Tex.Cr.App., 551 S.W.2d 364; Easley v. State, Tex.Cr.App., 529 S.W.2d 522. In both Stogsdill and Flores, the Court found the evidence insufficient to support the convictions. In both cases, there was no showing that the defendants were at or near the scene where the crimes took place. In both cases, the defendants were never shown to have been in possession or near the murder weapons. In Flores, the State merely proved that the defendant was in possession of the deceased’s car prior to and after his death. In Stogsdill, the State attempted to connect the defendant with the offense by tire track comparisons; however, those comparisons merely showed the tracks to be similar in nature. Likewise, in Easley, the defendant was not connected with the murder weapon. Nor was the defendant in Easley shown to have been at the scene where the victim was kidnapped on the day of the offense.

In the instant case, appellant testified that he was in the house at the time the deceased was killed. It was shown that appellant had a confrontation with the deceased the morning of her death.

Although appellant had lived in the home for four months and worked for the deceased, he merely walked out of the house without saying a word when several police *929officers, news media, and ambulance attendants were in the house or front yard. He had recently showered following an offense which was shown to have splattered a great deal of blood during its commission. He had what were identified to be fresh scratch marks on the side of his face.

Results of a test on articles of clothing found in appellant’s room were positive for the presence of blood. Although appellant explained the blood on his shirts and the cuts on his face, he could not explain the presence of blood on the sheets found in his room. He stated that he had never seen the sheets before.

The test run on appellant’s shoes was positive for the presence of blood. Although appellant’s chemist stated that the test may have given a false reaction because of gasoline on the shoes, he could not explain the crusty or flaky quality of the substance found on top of the shoe. Lastly, the glove found in appellant’s room approximately two hours after the offense was moist with a substance which later tested positive for blood. Appellant testified that grease was on the glove.

Considering the record as a whole and viewing it in the light most favorable to the verdict, we find the circumstantial evidence sufficient to support the conviction. Appellant’s first ground of error is overruled.

In his second ground of error, appellant contends that the trial court erred in admitting hearsay evidence. He maintains that statements made by the deceased to various witnesses concerning her intention to tell appellant to move on the day of the offense and her fear of appellant were inadmissible. The trial court ruled that such statements would be admissible if made to the witnesses by the deceased on the day of her death.

Anna Lorenz testified that after appellant called the deceased a “liar, thief, and hypocrite,” the deceased said that she was going to tell appellant to move out of the house because she was dissatisfied with his work on the house. Birdie Guy, the deceased’s maid, testified that the deceased had expressed her intention of telling appellant that he had to move.

Edna Porche testified that on the morning of the offense, she talked to the deceased. At that time, the deceased told her that appellant was working part-time as a cab driver and no longer doing work around her house. She told Porche that she was scared of appellant, but was going to ask him to move out that day.

Mildred Hurst testified that the deceased had been her sister-in-law. Hurst stated that on the afternoon of her death, the deceased told her that she was going to tell appellant to either start paying rent or to move out of the house.

Appellant’s third through sixth grounds of error challenge the admissibility of the testimony given by witnesses Lorenz, Guy, Porche, and Hurst. He maintains that their testimony to the effect that the deceased intended to meet with appellant and tell him to move was hearsay. None of these statements were shown to have been made in the presence of appellant.

In Corbett v. State, Tex.Cr.App., 493 S.W.2d 940, the Court considered the admissibility of a statement made by the deceased to his wife on the day of the offense. The deceased’s wife was allowed to testify over a hearsay objection that the deceased told her on the morning of his death that he was going to see the defendant in Freeport about some checks the defendant had written on the deceased’s checking account. In finding the testimony to be admissible, the Court noted:

“In Porter v. State, 86 Tex.Cr.R. 23, 215 S.W. 201, the mother of the deceased testified that deceased said at 9:00 P.M. that she was going to meet defendant at a particular location, and that defendant was going to take her to Nolanville so she could board a train for San Angelo. The deceased departed the mother’s home at about 11:00 P.M., and her body was found nine days later in a river near the point of her rendezvous with the defendant. *930With respect to the mother’s testimony, this Court said:

“ ‘We think that statements made by deceased to her mother while she was packing her clothes and dressing, preparatory to leaving home on the night of her disappearance, in addition to the reasons given in the original opinion, were res gestae of such acts directly explanatory thereof, and admissible in evidence.’ 215 S.W. at 213.

“In Chance v. State, 125 Tex.Cr.R. 318, 68 S.W.2d 212, this Court again cited authorities supporting the admissibility of hearsay statements made out of the presence of the accused as a part of the res gestae of the transaction between the declarant and the accused. The declarant, in Chance, was, as in Porter and the instant case, the victim of murder. This Court said:

“ ‘Deceased announced his intention of going, had a taxi called to take him . and the testimony of his statement as to who he was going to see was admissible as showing the motive of his going, and as fixing its destination and character, and same became thus a proper part of the res gestae of such going.’ 68 S.W.2d at 213.

“In the instant case, the testimony by the wife of the deceased was admissible as part of the res gestae and explanatory of her husband’s meeting with the appellant on January 26, 1970. See Marshall v. State, Tex.Cr.App., 384 S.W.2d 893; Newton v. State, 147 Tex.Cr.R. 400, 180 S.W.2d 946 (on motion for rehearing).”

Likewise, in the instant case, we find that the testimony was admissible as part of the res gestae and explanatory of the meeting which the deceased planned to have with appellant. We find that the trial court, did not err in ruling such testimony to be admissible. Appellant’s second through sixth grounds of error are without merit.

In grounds of error seven through ten, appellant maintains that the court’s charge to the jury is fundamentally defective. He contends that the charge authorizes a conviction on theories not pled in the information, that the charge is not limited to the conduct alleged in the information, that there is a fatal variance between the charge and the information, and that the charge fails to apply the law to the facts of the case. All of these contentions center around the court’s failure to require the jury to find that the death of the deceased was caused by “beating her on the head with a hammer.” These contentions are raised for the first time on appeal.

Appellant waived prosecution by indictment and was charged by information. The information alleges in part that appellant:

“. . . intentionally and knowingly caused the death of Fannie Kimball by beating her on the head with a hammer.”

The portion of the court’s charge which applies the law to the facts of the offense recites:

“Therefore, if you believe from the evidence beyond a reasonable doubt that the defendant, Samuel B. Trostle, as alleged in the information in Harris County, Texas, on or about the 2nd day of November, 1976, intentionally or knowingly cause the death of Fannie Kimball an individual, as alleged in the information, you will find the defendant guilty as charged in the information and say so by your verdict.”

With regard to his contention that the charge authorizes a conviction on theories not pled in the information and that the charge is not limited to the conduct alleged in the information, appellant relies on Robinson v. State, 553 S.W.2d 371; Morter v. State, 551 S.W.2d 715. In each of those cases, the jury charge was found to be defective due to the fact that it authorized a conviction under not only the proscribed conduct alleged in the indictment, but, also a different statutory theory from that alleged in the indictment. Appellant also relies on Ross v. State, 487 S.W.2d 744. In Ross, the charge authorized a conviction under a theory not alleged in the indictment. In the instant case, the information alleges and the charge limits a conviction to the conduct proscribed in V.T.C.A. Penal *931Code, Sec. 19.02(a)(1).1 Thus, appellant’s contentions that the charge authorizes a conviction under a theory different from that alleged in the information is not supported by the record.

With regard to appellant’s contentions that the charge contains a fatal variance and failed to apply the law to the facts of the case, he maintains that the charge allowed the jury to find that death was caused by means other than alleged in the indictment.

We have held that a jury charge which totally fails to apply the law of the offense to the facts of the case is fundamentally defective and may be raised for the first time on appeal. See, Perez v. State, 537 S.W.2d 455; Harris v. State, 522 S.W.2d 199. In the instant case, the charge set forth the statutory elements of the offense of murder and applied those elements to the facts of the case.

We cannot conclude that the failure of the charge to require the jury to find that the deceased died as a result of being beaten on the head with a hammer was an error calculated to injure the rights of appellant, or that appellant’s trial was not fair and impartial as a result of the commission. See, Art. 36.19, V.A.C.C.P. Appellant stipulated in the presence of the jury that the deceased died as a result of blunt trauma to the head. Dr. Jachimczyk testified that such injuries were consistent with the deceased having been beaten with a hammer. Appellant did not cross-examine the witness as to the cause of death nor did he offer any rebuttal evidence to refute same. Thus, the cause of death was not a disputed factual issue in the case.

Absent an objection to the charge, we find no reversible error. In Cumbie v. State, 578 S.W.2d 732 this Court set forth all of the errors in charges which have been found to constitute fundamental error. The alleged error in the charge in the instant case does not fall within any of the infirmities constituting fundamental error set forth in Cumbie. While it would have been desirable to include “beating her on the head with a hammer,” its omission under the circumstances here does not constitute fundamental error in the charge. Appellant’s seventh through tenth grounds of error are overruled.

In his eleventh ground of error, appellant contends that the trial court erred in failing to grant a mistrial following improper jury argument by the prosecutor. Specifically, appellant complains of the following argument:

(Prosecutor): “The last thing I want to talk to you about is this: The defendant has the same right to call witnesses as we do. I want you to think about this man who says he has devoted his whole life to God and worked for churches and God. You didn’t see a single witness come in here from any church or church-affiliated organizations and tell you what a good man he is.

“MR. ROGERS: I object to counsel commenting on the defendant’s character. We have not injected the defendant’s character in any manner.

“THE COURT: Sustained.

“MR. ROGERS: Would you please instruct the jury to disregard it?

“THE COURT: The jury will disregard the last comment.

“MR. ROGERS: Because of those remarks, we will move for a mistrial.

“THE COURT: That is overruled.”.

Generally, an instruction to disregard to the jury is sufficient to cure an error in argument to the jury. Jones v. State, Tex.Cr.App., 568 S.W.2d 847; Chambers v. State, 568 S.W.2d 313. It has been held that such an instruction to disregard is sufficient to render harmless any error in the type of argument to which appellant complains in this ground of error. See, Bates v. State, Tex.Cr.App., 587 S.W.2d 121; Baker *932 v. State, Tex.Cr.App., 368 S.W.2d 627. Appellant’s eleventh ground of error is overruled.

In his twelfth ground of error, appellant contends that the trial court erred in discharging the jury after a verdict of guilty was returned. He maintains that his action in filing a motion for probation required the jury to assess punishment.

The record reflects that on February 14, 1977, appellant filed a sworn motion for probation requesting that if the punishment assessed by “the Court or Jury” does not exceed ten years, that “the Court or Jury” place the defendant on adult probation. Appellant also filed a motion requesting that if the jury returned a verdict of guilty, that punishment be assessed by the court.

In Ortegon v. State, 459 S.W.2d 646, the Court considered a contention identical to the one which appellant raises in this ground of error. In that case, it was held:

“As we view it, the written-request to have the judge assess punishment had the effect of withdrawing any request there may have been for the jury to consider the issue of probation and constituted a waiver thereof.”

Appellant’s twelfth ground of error is overruled.

The judgment is affirmed.

OPINION

MEYERS, J.,

delivered the unanimous opinion of the Court.

Appellant was convicted of capital murder on March 2, 1998, for committing minder in the course of robbery. Tex. Penal Code Ann. § 19.03(a)(2). Pursuant to the jury’s answers to the special issues set forth in Texas Code of Criminal Procedure article 37.071 §§ 2(b) and 2(e), the trial judge sentenced appellant to death. Art. 37.071 § 2(g).1 Direct appeal to this Court is automatic. Art. 37.071 § 2(h). Appellant raises ten points of error. We affirm.

*646In his first two points of error, appellant challenges the admission of his confession. In his first point of error, appellant argues that the trial court should have suppressed his oral statements because police refused his request for counsel. In his second point of error, appellant contends his confessions were involuntary because he was intoxicated and tired and therefore did not know the consequences of waiving his rights.

At the suppression hearing, the State introduced transcriptions of appellant’s two audio-taped confessions given on January 2 nd and 3rd, 1996. Appellant can be heal’d stating on each tape that he understood and voluntarily waived his right to counsel. Although appellant testified at the hearing that he requested counsel from several officers before he gave these statements, all five officers involved with appellant’s arrest and interrogation testified to the contrary. When asked on cross-examination why he did not state on the tapes that he had previously requested counsel, appellant replied that he had been awake for two to four days and had been drinking. The two interrogating officers testified, however, that appellant appeared “wide awake” — not tired or intoxicated.

At a hearing on appellant’s motion to suppress evidence, the trial court is the sole judge of the weight and credibility of the evidence, and the trial court’s finding may not be disturbed on appeal absent a clear abuse of discretion. Alvarado v. State, 853 S.W.2d 17, 23 (Tex.Crim.App.1993); Romero v. State, 800 S.W.2d 539, 543 (Tex.Crim.App.1990). In reviewing the trial court’s decision, we view the evidence in the light most favorable to the trial court’s ruling. See Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997).

After hearing the testimony and reviewing appellant’s statements, the trial court found that, on each occasion, the interrogating officers apprised appellant of his right to counsel and that appellant voluntarily waived this right. The trial court also found that appellant was neither sleep-deprived nor under the influence of drugs or alcohol at the time of either statement. The trial court’s findings are supported by the testimony of the officers. The trial court did not abuse its discretion in denying appellant’s motion to suppress. See Dewberry v. State, 4 S.W.3d 735, 748 (Tex.Crim.App.1999), cert. denied, — U.S. —, 120 S.Ct. 2008, — L.Ed.2d — (2000). Appellant’s first and second points of error are overruled.

In his third point of error, appellant claims the trial court erroneously admitted hearsay testimony as to the contents of an unauthenticated videotape.2

The evidence showed that appellant and Daniel Reneau, appellant’s co-defendant, robbed a Texaco station and stole the safe, the surveillance VCR, and other items. During the course of the robbery, Reneau shot the victim. Appellant and Reneau fled to appellant’s parents’ home in Devine, Texas, where they attempted to open the safe with a sledge hammer and blow torch. Appellant’s sixteen-year-old brother, Jonathan Wood, asked how they had obtained the safe, and appellant explained that they had robbed the service station and killed the attendant. When Jonathan expressed his disbelief that they had committed murder, appellant played the surveillance vid*647eo showing Reneau shoot the victim. Then, pursuant to appellant’s instructions, Jonathan destroyed the video with a blow torch.

Over appellant’s objection that the State had not laid the proper predicate, Jonathan testified at trial concerning the contents of the tape:

Daniel walked into the store with a small pistol — well, fairly large, but he walked in and he pointed the gun at the dude and said something. It was blurry. I couldn’t understand it, and the next thing I know was a shot and that the dude fell out of sight and he went around the back and then [appellant] was out by ¿he truck when the shot went off, but thén he walked by the door ... and looked through the glass and then he went in and he looked over the counter and after that he went back, too, and he just cut it off.

Appellant argues that the State failed to properly authenticate the tape because Jonathan had no personal knowledge of where or when the tape was made. He further avers that “it was impossible for the state to demonstrate that the video resulted from a reliable process or system in accordance with Texas Rules of Evidence 901(b)(9).”

Texas Rule of Criminal Evidence 901 provides that “[t]he requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” See Angleton v. State, 971 S.W.2d 65, 67-68 (Tex.Crim.App.1998). Rule 901(b) provides illustrations of authentication complying with the rule. For instance, testimony by a witness with knowledge that the matter is what it is claimed to be is an acceptable method of authentication. Tex.R.Crim. Evid. 901(b)(1). Also, the matter in question may be authenticated by its “[ajppearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances.” Tex. R-Cbim. Evid. 901(b)(4). Although generally the original recording is required to prove the content of a video tape, see Tex.R.CRIm. Evid.1002, “other evidence of the contents of a ... recording ... is admissible if [a]ll originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith.” Tex. R.Crim. Evid. 1004(1).

Jonathan testified that he destroyed the tape with a blow torch; accordingly, the State was authorized to prove its contents through “other evidence.” See Tex.R.CRIm. Evid. 1004. Jonathan, who was familiar both with appellant and Reneau, identified them on the tape and possessed sufficient knowledge to testify to the tape’s contents. See Tex. R.Crim. Evid. 901(b)(1) and (4). Moreover, the circumstances surrounding Jonathan’s viewing of the tape — ie, that appellant played the tape for him to prove that they had committed murder during the course of stealing the safe — serve to authenticate its contents. See Tex.R.Crim. Evid. 901(b)(4). The State’s method of authentication satisfied the requirements of Rules 901 and 1004 in this case. The trial court did not abuse its discretion in admitting Jonathan’s testimony describing what he had viewed on the tape. See Angleton, 971 S.W.2d at 67. Point of error three is overruled.

In his fourth point of error, appellant alleges the trial court erroneously denied his motion for mistrial asserted during the second competency hearing. Specifically, he complains that he had subpoenaed the State’s expert, Dr. John Quinn, to produce “all information of any nature whatsoever relating to appellant,” but that Quinn failed to bring his “raw testing data” to the competency hearing. Appellant claims the raw data was “crucial” to appellant’s ability to cross-examine Quinn and to a determination of an explanation for the differing conclusions of the State’s and the defense’s experts.3

*648At the competency hearing, Quinn explained that he had never seen the subpoena because it went directly to the records department at Vernon State Hospital. Quinn testified that he tendered to appellant his entire file, with the exclusion of raw data per hospital policy. Quinn further explained that he could not have released the raw data unless the subpoena had included an explicit request for “raw data.” Appellant requested a mistrial and asked that the case be reset to allow him an opportunity to obtain the raw data.

Mistrial is a remedy appropriate for a narrow class of highly prejudicial and incurable errors:

A mistrial is a device used to halt trial proceedings when error is so prejudicial that expenditure of further time and expense would be wasteful and futile. Thus, a trial court may properly exercise its discretion to declare a mistrial if an impartial verdict cannot be reached, or if a verdict of conviction could be reached but would have to be reversed on appeal due to an obvious procedural error. Sewell v. State, 696 S.W.2d 559, 560 (Tex.Crim.App.1983). The determination of whether a given error necessitates a mistrial must be made by examining the particular facts of the case. Hernandez v. State, 805 S.W.2d 409, 413-414 (Tex.Crim.App.1990), cert. denied, 500 U.S. 960, 111 S.Ct. 2275, 114 L.Ed.2d 726 (1991). The asking of an improper question will seldom call for a mistrial, because, in most cases, any harm can be cured by an instruction to disregard. Ibid. A mistrial is required only when the improper question is clearly prejudicial to the defendant and is 'of such character as to suggest the impossibility of withdrawing the impression produced on the minds of the jurors. Ibid. A trial court’s denial of a mistrial is reviewed under an abuse of discretion standard.

Ladd v. State, 3 S.W.3d 547, 567 (Tex.Crim.App.1999), cert. denied, — U.S. —, 120 S.Ct. 1680, 146 L.Ed.2d 487 (2000). Assuming”raw data” was covered by appellant’s subpoena and should have been produced, mistrial would have been an inappropriate remedy in these circumstances. Appellant made no showing that the material was unobtainable. Neither did he request a continuance to allow Quinn an opportunity to obtain the material, a much less drastic remedy. The trial court did not abuse its discretion in denying appellant’s motion for a mistrial. See Sosa v. State, 769 S.W.2d 909, 912-13 (Tex.Crim.App.l989)(where appellant did not receive copy of State’s expert’s report on competency, but appellant did not request continuance to further prepare for cross-examination of, mistrial motion was properly denied and appellant not harmed or prejudiced). Point of error four is overruled.

In his fifth point of error appellant argues that the punishment-phase special issue required by Article 37.071 § 2(b)(2)4 is unconstitutional because it permits the jury to impose the death penalty without regard to whether appellant acted deliberately. Without further argument, appellant cites the Fifth, Eighth, and Fourteenth Amendments to the United States Constitution, Article I §§ 10, 13, and 19 of the Texas Constitution, and Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972)5 as support for this contention.

*649We have decided this issue adversely to appellant. In McFarland v. State, we held the anti-parties special issue constitutional because it specifically instructs the jury to consider the defendant’s behavior alone. 928 S.W.2d 482, 516-17 (Tex.Crim.App.1996)(quoting Article 37.071 § 2(b)(2) (“the defendant himself’)), cert. denied, 519 U.S. 1119, 117 S.Ct. 966, 136 L.Ed.2d 851 (1997). Appellant presents no argument compelling us to revisit McFarland. Point of error five is overruled.

In his sixth point of error, appellant claims the trial court should have granted his motion to set aside the indictment “because the Texas death penalty statute does not provide any meaningful appellate review regarding mitigation.” We decided this issue adversely to appellant in McFarland, 928 S.W.2d at 498-99, where we explained that “we cannot meaningfully review the jury’s normative decision on mitigation,” because the mitigation issue is specifically designed to take into account the jurors’ individual assessments of a capital defendant’s deathworthiness.6 Appellant’s sixth point of error is overruled.

In his seventh point of error, appellant contends the trial court erroneously denied his motion to require the State to exercise its strikes, both peremptory and for cause, before appellant’s strikes. We recently recognized that a trial court may allow the method urged by appellant, but has discretion in this regard:

A trial judge [presiding over voir dire in a capital case] has the discretion to decide (1) whether the State must voice both a challenge for cause or a peremptory challenge before the defendant, or (2) that both sides issue any challenges for cause before the State lodges a peremptory challenge.... Either method ... is acceptable under Article 35.13, and no error can result if either is followed.

Hughes v. State, No.73,129 slip op. at 9, 2000 WL 368930 (Tex.Crim.App. April 12, 2000) (citing Bigby v. State, 892 S.W.2d 864, 881 (Tex.Crim.App.1994) (plurality opinion), cert. denied, 515 U.S. 1162, 115 S.Ct. 2617, 132 L.Ed.2d 860 (1995)). The trial court did not abuse its discretion in overruling appellant’s motion and requiring that both sides issue challenges for cause prior to the State’s use of a peremptory challenge. Hughes, supra. Point of error seven is overruled.

In his eighth point of error, appellant claims the trial court erroneously permitted the State’s expert witness, Dr. James Grigson, to testify because the State untimely disclosed its intention to call Grig-son. The court’s discovery order required the State to disclose all witnesses ten days before voir dire commenced. The State announced it would call Grigson four days after voir dire concluded.

We review the trial court’s decision to permit Grigson’s testimony under an abuse of discretion standard. Nobles v. State, 843 S.W.2d 503, 514 (Tex.Crim.App.1992), cert. denied, 523 U.S. 1139, 118 S.Ct. 1845, 140 L.Ed.2d 1094 (1998). “If the trial judge allows a witness to testify who does not appear on the State’s witness fist, we consider whether the prosecutor’s actions constitute “bad faith” and whether the defendant could have reasonably anticipated the witness’ testimony.” Martinez v. State, 867 S.W.2d 30, 39 (Tex.Crim.App.1993), *650cert. denied, 512 U.S. 1246, 114 S.Ct. 2765, 129 L.Ed.2d 879 (1994).

The State informed appellant as soon as it anticipated calling Grigson as a witness. At the beginning of the guilt/innocence phase, the trial court conducted a hearing on appellant’s motion for continuance. Appellant’s trial counsel, Scott Monroe, testified that the prosecutor, Lucy Cavazos, announced on the first day of individual voir dire the possibility that the State might call Grigson to testify at the punishment phase. Monroe spoke with Grigson on the telephone later that week, and Grigson confirmed that the State had contacted him but that he was still unsure whether he would testify. After meeting with Grigson on the following day, Cavazos called Monroe from Dallas to inform the defense that she had decided to call Grigson. Monroe testified that, although Grigson’s name had not appeared on the witness fist, the State’s disclosure provided him with three weeks notice that Grigson might testify. We conclude the State did not act in bad faith.

In addition, appellant could have reasonably anticipated Grigson’s testimony in light of the State’s announcement on the first day of the individual voir dire that it might call Grigson to testify at punishment. See Martinez, supra (defendant could have reasonably anticipated State’s witness “in light of the widespread use of [expert] testimony [on the second punishment issue], coupled with the prosecutor’s statements regarding his desire to present this type of testimony”).

Appellant also complains the trial court abused its discretion in fading to grant his motion for a continuance to allow additional time to prepare for cross-examination of Grigson. The trial court did grant appellant additional days to prepare:

... as far as the motion for continuance, in the event [appellant] is found guilty of capital murder, if that is Tuesday, Wednesday or Thursday, whenever that is this week, I’m going to recess and start the punishment phase, if we get there, on Monday morning, to give defense counsel perhaps a couple of days at the end of the week and weekend to focus on those punishment issues, but I don’t feel comfortable going past that.

The record reflects that the guilt/innocence phase concluded on Wednesday, February 25 and the punishment phase began on Monday, March 2. Therefore, appellant had two weekdays and a weekend to prepare for Grigson’s testimony. Appellant’s motion did not specify the number of days requested for the continuance and appellant did not object to the trial court’s ruling. Appellant’s eighth point of error is overruled.

In his ninth point of error, appellant claims the reasonable-firmness standard applicable to the defense of duress under section 8.05 of the Texas Penal Code is unconstitutional as applied to him because appellant is not and never will be “a person of reasonable firmness.”7 Appellant argues that because he could never avail himself of the duress defense, he was denied equal protection of the laws.

The party challenging a statute on equal protection grounds bears the burden of showing that the statutory classification is not rationally related to a legitimate state interest, where interests other than fundamental rights or suspect classification are affected. Smith v. State, 898 S.W.2d 838, 847 (Tex.Crim.App.)(plurality opinion), cert. denied, 516 U.S. 843, 116 S.Ct. 131, 133 L.Ed.2d 80 (1995); see also Broxton v. State, 909 S.W.2d 912, 918-*65119 (Tex.Crim.App.l995)(adopting reasoning of plurality opinion in Smith on equal protection claim); FCC v. Beach Communications, Inc., 508 U.S. 307, 815, 113 S.Ct. 2096, 124 L.Ed.2d 211 (1993) (on rational-basis review, “those attacking the rationality of the legislative classification have the burden ‘to negative every conceivable basis which might support it’ ”). Appellant cites no authority supporting his argument that the application of section 8.05 to persons who are not of reasonable firmness violates equal protection.8 Neither does appellant develop his argument. He does not allege that such persons are a suspect class, subject to heightened scrutiny, or allege, if not a suspect class, why section 8.05 does not meet the rational basis test.9 Appellant has not met his burden of showing that he has been denied equal protection under the law. Point of error nine is overruled.

In his tenth point of error, appellant claims the trial court erroneously restricted the testimony of two defense witnesses relating statements made by appellant concerning the offense.

The court held a hearing on the State’s motion in limine to determine whether a hearsay exception applied to the defense witnesses’ testimony. At the hearing, Nadia Mireless, appellant’s former girlfriend and mother of his child, testified that about an hour before the murder, “[appellant] had told [Reneau] to leave all the guns at home. [Appellant] had told [Reneau] to leave all the guns there, that they were just going to take Joe’s truck back, that they weren’t going to go through with it.” Appellant argues that this statement was admissible under the statement-against-penal-interest and present-sense-impression exceptions to the hearsay rule.

Texas Rule of Criminal Evidence 803(24) defines a statement against interest as “a statement which ... at the time of its making ... so far tended to subject the declarant to civil or criminal liability ... that a reasonable man in his position would not have made the statement unless he believed it to be true.” This exception does not apply to Mireless’ testimony which tends to absolve appellant of criminal responsibility. See Hafdahl v. State, 805 S.W.2d 396 (Tex.Crim.App.1990) (defendant’s statement that he did not know the victim was a police officer until after he shot him was inadmissible hearsay), cert. denied, 500 U.S. 948, 111 S.Ct. 2250, 114 L.Ed.2d 491 (1991). As such, the selfserving nature of appellant’s statement that he did not want to participate in the offense outweighs the minor inculpatory significance of the statement. Cf. State v. Arnold, 778 S.W.2d 68, 69 (Tex.1989) (noting that when assessing statement against interest under Texas Rule of Civil Evidence 803(24), court must balance declar-ant’s competing self-serving and contrary interests “to determine their predominant nature and ultimately the level of trustworthiness to be accorded”).

Nor is the statement a present-sense impression. Texas Rule of Criminal *652Evidence 803(1) defines present-sense impression as “a statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.” Appellant has indicated neither to the trial court nor to this Court what event or condition he was perceiving when he allegedly told Reneau to leave the guns at home. Accordingly, he fails to demonstrate how the trial court’s refusal to admit the statement on this basis was an abuse of discretion. Cf. Rabbani v. State, 847 S.W.2d 555, 560 (Tex.Crim.App.1992) (statement that declarant saw defendant outside was admissible under 803(1) because the statement explained an event or condition), cert. denied, 509 U.S. 926, 113 S.Ct. 3047, 125 L.Ed.2d 731 (1993).

Appellant also argues the trial court should have admitted the statement of Linette Esensee, who was staying at appellant’s and Reneau’s house on the night of the murder. She testified at the in limine hearing that, when appellant and Reneau returned from the robbery, appellant stated that “[Reneau] had threatened to kill [appellant’s child] and [Mireless] if he didn’t go along with it.” Appellant says this statement is admissible as either a statement against interest, because appellant admitted his involvement in the crime, or as an excited utterance because he was “still under the stress, excitement and shock of the crime he had committed.”

Like the first statement, this statement tends more to exonerate than to inculpate appellant of criminal liability. Appellant clearly sought admission of this statement to support his duress defense, which if believed, would have entitled him to an acquittal. See Tex. Penal Code § 8.05. Thus, it falls outside the statement-against-interest exception.

Also, Esensee never indicated that appellant appeared excited or nervous when he allegedly told her that Reneau had threatened him. A hearsay statement is admissible as an excited utterance when it relates “to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.” Tex.R.Ceim. Evid. 803(2). At the hearing, the State pointed out that appellant had returned home and'spoken with Esensee in the evening, at least ten to twelve hours after the 6 a.m. robbery. During the interim, appellant and Reneau had traveled to appellant’s parents’ house, removed the money from the safe, and shopped for cars and stereos. Given the fourteen-hour delay and appellant’s activities after the robbery, we hold that the trial court did not abuse its discretion in rejecting appellant’s excited-utterance argument. Appellant’s tenth point of error is overruled.

The judgment of the trial court is affirmed.

OPINION

KELLER, J.,

delivered the opinion of the Court

in which McCORMICK, P. J., and MEYERS, MANSFIELD and KEASLER, JJ., joined.

Appellant was convicted in April 1998 of three counts of capital murder arising from an episode occurring on October 1, 1996. Tex. Penal Code § 19.08(a)(7) & (8).1 Pursuant to the jury’s answers to the special issues set forth in Texas Code of Criminal Procedure, Article 87.071 §§ 2(b) and 2(e), the trial judge sentenced appellant to death. Article 37.071 § 2(g).2 Direct appeal to this Court is automatic. Article 37.071 § 2(h). Appellant raises nineteen points of error. We will affirm.

I. BACKGROUND

Veronica Fuentes lived in a trailer park in Brazoria County with her husband and their two children, Joshua and Cassandra, ages five and three. Sherry Graves was the landlord of the trailer park and lived in a house about forty to fifty feet from the Fuentes’ trailer. Veronica became estranged from her husband and at some point dated appellant, but Veronica and appellant eventually “broke up.” Several weeks before the murders from which this prosecution arose, Veronica told Graves that she was afraid of appellant, and if appellant showed up, Graves should call the Sheriffs office.

On October 1, 1996, at around 11:00 p.m., as Graves was lying in bed, she heard banging noises and screaming coming from the direction of the Fuentes’ trailer. She went to the Fuentes’ trailer and listened at the window. She heard Veronica say. “No Virgil. No. Please no. Just go. Just go.” An angry male voice referred to “your purse” and also to someone’s dad as “a cop.” Graves went to the front door and walked inside the living room area. She asked Veronica if she was okay. Sounding scared, Veronica responded, “Yes. Sherry, get help. Get help.” Graves told Veronica that she was going to call 911, and she dialed 911 as she walked back toward her house. John Gomez came to Graves’ house and mumbled, “Veronica’s gone crazy. Gun at kids’ heads.” Graves tried to explain to the 911 operator what was happening.

Graves then saw Veronica in the Fuentes’ front yard calling Virgil’s name, saying “No Virgil. Oh my God.” Graves then saw appellant shoot Veronica and Veronica fall to the ground. At this point, Gomez ran towards appellant, and appellant shot him. Graves ducked inside her home. Appellant ran off, passing within five to ten feet of Graves’ window. The floodlights were on, and Graves saw appellant fiddling with a “holster-looking belt.”

Robin Johnstone and her son Keith Burrow were neighbors of Veronica. John-stone heard knocking and went outside to investigate. She saw people running across the street, then heard gunshots, and saw Gomez running toward a garage. Then she saw appellant run in front of Graves’ house. She also noticed that ap*682pellant was wearing a gun holster around his waist.

Burrow saw appellant shoot Veronica. He saw who appellant was by looking through a gunscope that made images look nine times closer. .

The police arrived to find Veronica arid her two children dead from multiple gunshot wounds. The children were found dead in their bed. Veronica was lying in the front yard, with wounds from ten to twelve bullets. The police found Gomez still alive, with seven gunshot wounds. Sergeant Thomas Tolson asked Gomez, “Who did this?” Gomez replied, “Boyfriend, girlfriend. Boyfriend, girlfriend. Ex-boyfriend.” Tolson repeated the question, and Gomez replied, “Boyfriend, girlfriend, ex-boyfriend.” Then Tolson asked, “Did the ex-boyfriend do this? Who did that?” and Gomez responded, “Ex-boyfriend.” Gomez later died from the gunshot wounds.

Appellant fled to Del Rio. On October 2, 1996, at around 6:00 p.m., he called 911, claiming that he was hearing voices and he needed medical attention. Del Rio officers were dispatched to appellant’s location, and he was taken to a hospital. Appellant’s car was later found in Del Rio and searched.

Forensic examination and microscopic analysis revealed that all of the bullets found at the crime scene were fired from the same nine millimeter gun. Testimony showed that the magazine clips for this type of gun were capable of holding fifteen bullets apiece. A search of appellant’s room in his mother’s home revealed a gun box designed to house a nine millimeter gun. A gun belt appropriate for holstering such a gun was found in appellant’s car. The gun was never found.

II. GUILT/INNOCENCE

A. Voir Dire Issues

In points of error four and five, appellant complains about the trial court’s refusal to grant certain defense challenges for cause. Before an appellant can claim that he was harmed by a trial court’s denial of a defense challenge for cause, the record must show that (1) he exhausted all of his peremptory challenges, (2) he requested more challenges, (3) his request was denied, and (4) he identified an objectionable person seated on the jury upon whom he would have exercised a peremptory challenge. Anson v. State, 959 S.W.2d 203, 204 (Tex.Crim.App.1997), cert. dism’d, 525 U.S. 924, 119 S.Ct. 290, 142 L.Ed.2d 241 (1998); Broussard v. State, 910 S.W.2d 952, 956-957 (Tex.Crim.App.1995), cert. denied, 519 U.S. 826, 117 S.Ct. 87, 136 L.Ed.2d 44 (1996). The record shows that appellant exercised his fifteenth and final peremptory challenge on prospective juror King. The next prospective juror, Felan, was accepted by appellant and became the twelfth member of the jury. Appellant did not ask for additional peremptory challenges. Under these circumstances, appellant was not harmed by the denial of his challenges for cause. Points of error four and five are overruled.

B. Motions to Suppress

1. Search of the Mother’s Home

In point of error one, appellant contends that the trial court erred in denying his motion to suppress the fruits of a police search of his mother’s home. The claimed basis for the search was that appellant’s mother consented to the search. Appellant challenges this basis for the search on two grounds. First, he claims that his mother’s consent was not voluntary. Second, he claims that his mother had no authority to consent to the search of his room. Neither of these claims were made in appellant’s motion to suppress. The motion simply alleged that the search “was conducted without consent, without a valid warrant, without probable cause” in violation of the Fourth Amendment and *683Article I § 9 of the Texas Constitution.3 Moreover, appellant advanced no argument before the trial court on the issues he now advances on appeal.

Appellant has procedurally defaulted his argument that his mother lacked the authority to consent to a search of his room. A party’s objection must state the grounds for ruling with “sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context.” Tex.R.App. P. 33.1. The mother’s ownership of the house was at least prima facie evidence of her authority to allow law enforcement agents to search her home. The fact that appellant is an adult who resided in a room in that home does not necessarily negate his mother’s authority to consent to a search of that room. See Sorensen v. State, 478 S.W.2d 532, 533-534 (Tex.Crim.App.1972) (mother in that case had authority to consent to a search of the adult defendant’s room). The focus of appellant’s motion and the pretrial hearing was on whether consent actually occurred, not on whether someone had the authority to consent. From this record, we cannot conclude that the trial court was made aware that appellant was contesting his mother’s authority to consent to a search.

We shall assume, without deciding, that appellant’s claim at trial that there was no consent fairly encompasses his claim on appeal that his mother’s consent was not voluntary; we will address the merits of the voluntariness issue. We review the record at a motion to suppress hearing under a mixed standard: (1) the historical facts and any application of law to fact questions that turn on an evaluation of credibility and demeanor are viewed in the fight most favorable to the trial court’s ruling, and (2) application of law to fact questions that do not turn upon an evaluation of credibility and demeanor are reviewed de novo. Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997). The record, viewing the historical facts in the fight most favorable to the trial court’s ruling, shows the following: Appellant lived in his mother’s home and had his own room. Police officers came to the home and asked appellant’s mother for consent to search appellant’s room. Appellant’s mother gave oral consent but refused to sign a written consent form. She was told by one of the officers that she did not have to allow a search, but she told the officers “Go ahead.” No threats of any kind were made, and officers testified that they had no reason to believe that appellant’s mother’s consent to search was not voluntary.

This evidence is sufficient to show that the mother’s consent was voluntary. Testimony that a person gave consent after being warned of the right to refuse consent is some evidence that the consent was voluntary. Allridge v. State, 850 S.W.2d 471, 492 (Tex.Crim.App.1991), cert. denied, 510 U.S. 831, 114 S.Ct. 101, 126 L.Ed.2d 68 (1993). Testimony by law enforcement officers that no coercion was involved in obtaining the consent is also evidence of the consent’s voluntary nature. Id.

Appellant’s mother and sister testified that the officers were never given permission to search appellant’s room. But the trial court was free to disregard this testimony and believe the police officers. Id.; Guzman, 955 S.W.2d at 89. Point of error one is overruled.

2. Search of Appellant’s Car

In point of error two, appellant contends that the trial court erred in overruling his motion to suppress evidence obtained from his car. In his motion and on appeal, appellant alleges that law enforce*684ment authorities obtained a gun belt from his car in violation of the Fourth Amendment and of Article 18.10.

Police discovered a grey, four-door, Mitsubishi automobile in Del Rio, and a license check revealed that appellant was one of the registered owners. H.M. Atchi-son, a detective with the Brazoria County Sheriffs Office, relayed to Don Weaver, an officer with the Del Rio police department, information from which . Officer Weaver drafted a search warrant and probable cause affidavit. The search warrant was approved by a magistrate in Val Verde County. The probable cause affidavit described the car in question as a “1990 Mitsubishi four door automobile, grey in color, bearing Texas license plate DNF-93C, vehicle identification number JA3CU26X0LU005115.” The affidavit mentioned the location of the car in Del Rio and stated that appellant was one of the registered owners of the vehicle. The affidavit also related the basis for believing the automobile contained evidence of a crime:

A woman named Sherry Graves, d/o/b/ 12-23-54, observed Virgil Martinez driving the said automobile. She stated in a voluntary statement to the Brazoria County Sheriffs Department that she observed Virgil Martinez drive the said automobile to the scene of the crime and she watched as Virgil Martinez shot Veronica Fuentes and John Gomez.

The affidavit listed a number of items that were expected to be found in the car, including a gun belt.

Consistent with statements in the probable cause affidavit, appellant’s car was parked in Del Rio on a public street, in front of a slaughterhouse. With the warrant in hand, on October 11, 1996, at around 11:45 p.m., officers-went out to the ear. One of the police officers shone a flashlight at and looked through one of the windows of the car. He saw a gun belt on the rear passenger floorboard, and a switchblade knife was seen in the center console between the front two seats.- The car was then towed by a wrecker service. The vehicle was later inventoried, and on October 12,1996, the gun belt was taken to Brazoria County. Later, the gun belt was delivered to a laboratory for scientific testing. On March 6,1997, a Val Verde County magistrate issued an order authorizing the removal of the gun belt from Val Verde County.

During the motion to suppress hearing, Graves testified that she did not describe the car appellant was driving at the time of the murder. When asked what car appellant usually drives, she described the car as a grey, four-door car. But she never described appellant’s car by its make, year, license plate number, or vehicle identification number. Detective Atchison admitted that Graves did not supply all the information about the car that was attributed to her in the probable cause affidavit. Atchison stated that the misstatements in the affidavit were probably his mistake.

Appellant argued to the trial court that the misstatements in the probable cause affidavit were knowing falsehoods that rendered the search warrant invalid under Franks v. Delaware. 4 The State defended the search warrant but also argued that the gun belt was properly seized under the “plain view seizure” doctrine. The trial court granted appellant’s motion to suppress as to all evidence found in the car except the gun belt. During the hearing, the trial court said that appellant’s argument on the plain view seizure issue did not “hold[ ] water.”

On appeal, appellant contends that the warrant is invalid and that the plain view seizure doctrine does not apply. The State responds with three arguments: (1) the probable cause affidavit contains enough information to justify issuance of the warrant even after the inaccuracies are excised, (2) the gun belt was properly seized under the plain view seizure doctrine, and (3) appellant’s automobile was abandoned, *685so appellant no longer had an expectation of privacy in it or its contents. We agree with the State that the gun belt was properly obtained under the plain view seizure doctrine.5

The plain view seizure doctrine requires a two-prong showing: (1) that law enforcement officials see an item in plain view at a vantage point where they have the right to be, and (2) it is immediately apparent that the item seized constitutes evidence — that is, there is probable cause to associate the item with criminal activity. Ramos v. State, 934 S.W.2d 358, 365 (Tex.Crim.App.1996), cert. denied, 520 U.S. 1198, 117 S.Ct. 1556, 137 L.Ed.2d 704 (1997). Appellant concedes that the officers satisfied the first prong — that they were lawfully in a position to observe the gun belt in plain view. He contends only that it was not immediately apparent at the time that the gun belt constituted evidence of a crime. We disagree.

Law enforcement officers knew from a license check that appellant was one of the registered owners of the 1990 Mitsubishi. The Mitsubishi also matched Graves’ general description of a grey, four-door car that she had seen appellant drive. The officers were also armed with the knowledge that an eyewitness had identified appellant as the shooter of at least two of the victims of the crime in question, and so, he used a gun, which might have a matching gun belt. And, the car’s being found in Del Rio was evidence that appellant had used the vehicle to flee. Knowing all of those facts, the officers had probable cause to believe that the gun belt found in appellant’s car was associated with criminal activity. Indeed, under those facts, the officers had probable cause to believe that the car itself was associated with criminal activity, and they were justified, not merely in retrieving the gun belt, but also in seizing the car and all of its contents.

Appellant also argues that the gun belt should be excluded from evidence due to a violation of Article 18.10. Article 18.10 sets forth the procedures for returning a search warrant and disposing of property that has been seized:

Upon returning the search warrant, the officer shall state on the back of the same, or on some paper attached to it, the manner in which it has been executed and shall likewise deliver to the magistrate a copy of the inventory of the property taken into his possession under the warrant. The officer who seized the property shall retain custody of it until the magistrate issues an order directing the manner of safekeeping the property. The property may not be removed from the county in which it was seized without an order approving the removal, issued by a magistrate in the county in which the warrant was issued; provided, however, nothing herein shall prevent the officer, or his department, from forwarding any item or items seized to a laboratory for scientific analysis.

(Emphasis added). Appellant contends that officers violated Article 18.10 by removing property from Val Verde County to Brazoria County without prior approval from a Val Verde County magistrate. Appellant further contends that this alleged violation of Article 18.10 triggers Article 38.23’s provisions, requiring evidence obtained in violation of the law to be excluded. The State advances three responses: (1) the removal of the evidence meets the “scientific testing exception” contained in Article 18.10, (2) the Val Verde County magistrate’s order of March 6, 1997 retroactively cured any noncompliance with Article 18.10, and (3) any error was harmless under Tex.R.App. P. 44.2(b).

We need not address the State’s arguments regarding the intricacies of complying with Article 18.10 or the harm that might be caused by a failure to comply *686because we find that Article 38.23 does not apply to violations of Article 18.10. Article 38.23(a) requires the exclusion of evidence “obtained ... in violation of any provisions of the Constitution or laws of the State of Texas .... ” (ellipses inserted). Article 18.10’s requirement that property not be removed from the county applies only after the property has already been seized. The “obtaining” of a particular item of evidence is not a continuing act. That officers may move an item of evidence to an unauthorized location after it has been legally obtained does not vitiate the status of such evidence as having been legally obtained. Having found that the gun belt was legally obtained pursuant to a plain view seizure, we conclude that the removal of the gun belt from Val Verde County, even if unauthorized under Article 18.10, does not vitiate the status of that evidence as legally obtained. Point of error two is overruled.

C. Evidence

1. John Gomez’s Character

In points of error six and seven, appellant contends that the trial court erred in excluding evidence of John Gomez’s history of violence and mental illness. Appellant outlines testimony elicited in bills of exception from two witnesses: Joe Castro, Gomez’s uncle, and Juanita Gomez, Gomez’s grandmother. Appellant does not point to a particular rule of evidence authorizing this testimony; instead, he merely claims that the State “opened the door” to this evidence.

Initially, we observe that appellant has failed to preserve his claim as to Castro’s testimony. After Castro was questioned outside the presence of the jury, the trial court ordered a recess. After the recess, the trial court deferred its ruling:

Counsel, in reference to the request by the defense to question the witness Castro in reference to Mr. Gomez, I’m going to hold my ruling in abeyance and allow you, at a later date, at a later time in this trial, if you call it to my attention, I will determine whether or not I will allow it at that time. But at the present time, I am not overruling, I’m not granting the State’s objection they have to it. But I’m not going to allow it at this point in time.

Appellant objected to the trial court’s “not making a ruling at this time.”

After' the State rested, appellant reminded the trial court of appellant’s wish to introduce evidence of Gomez’s character for violence. The trial was recessed for the weekend. On Monday, the trial court asked defense counsel what character evidence he wanted to offer regarding Gomez. The trial court stated that it would not allow in juvenile records but would allow appellant to question witnesses, including Castro. Defense counsel responded that the testimony would probably come in through Juanita. Defense counsel made no subsequent attempt to introduce Castro’s testimony about Gomez’s character.

To preserve error on appeal, a party must obtain a ruling from the trial court or object to the trial court’s refusal to rule. Tex.R.App. P. 33.1(a)(2)(A) & (B). The trial court never ruled on the admissibility of Castro’s testimony. Although appellant objected to the trial court’s refusal to rule at the time,6 after the State rested, the trial court gave appellant the opportunity to introduce Castro’s testimony. Error with respect to Castro’s testimony has not been preserved for review.

Appellant did properly preserve his claim with respect to Juanita’s testimony by eliciting her proposed testimony outside-the presence of the jury and obtaining a ruling excluding the evidence. We turn, then, to the merits of his claim with respect to her proposed testimony.

*687In his brief, appellant claims that the following testimony was improperly excluded (paraphrased and numbering inserted):

(1) Juanita denied that she had applied to have her grandson, John Gomez, committed to Harris County Psychiatric Hospital, although she admitted requesting that he receive psychiatric treatment.

(2) She denied that she had stated in a sworn pleading that her grandson had hurt people and would do it again because he would not take his medication.

(3) She acknowledged that her grandson was committed to the Harris County Psychiatric Hospital and that he had been on medication for several years.

(4) She did not know whether her grandson was committed because he would become physically aggressive with other people.

(5) She acknowledged that she had sought temporary health services for her grandson.

(6) She acknowledged that a defense exhibit reflected that her grandson had been suspended for three days for hitting a girl at school.

Character evidence is ordinarily inadmissible. Tex.R. Evid. 404(a). The defendant is permitted to introduce evidence of a pertinent character trait of the alleged victim of the offense on trial. Rule 404(a)(2). But, such evidence may only take the form of reputation or opinion testimony. Rule 405(a). Items (1), (3), (5), and (6) do not constitute reputation or opinion testimony. Item (4) involves a question that, arguably, might encompass opinion testimony, but the answer does not, as the witness stated she did not know. Item (2) arguably involves an opinion about character but that opinion, expressed in a legal pleading, was hearsay. See Tex.R. Evid. 801 & 802. Juanita was never asked for her opinion as to whether Gomez was a violent person. Nor was she asked whether Gomez had a reputation for being a violent person.7

The sole reason advanced by appellant for admitting this testimony is that the State opened the door to this evidence with the following question and answer from Castro:

Q. Did he [John Gomez] take care of anyone, there, at that residence?

A. He took care of my mom and his mother.8

Appellant contends that this testimony created a false impression that “Gomez had never been involved in aggressive and assaultive behavior with his family members” and that appellant was entitled to rebut this “false impression” with Gomez’s history of violence and mental illness.

This relatively innocuous testimony does not open the door to the presentation of specific instances of violent conduct or of Gomez’s history of mental health treatment. That Gomez took care of family members is hardly evidence of peaceable character. Taking care of a family member does not, in itself, reveal any information about whether the caregiver is peaceful or violent towards those in his care— much less towards others who are not even family members. But even if we were to find that this evidence had some small tendency to falsely confer an impression of peaceful character, the trial court would be well within its discretion in excluding appellant’s evidence under Tex.R. Evid. 403.9 *688Points of error six and seven are overruled.

2.Keith Burrow’s Character

In points of error nine and ten, appellant complains that the trial court erred in refusing to permit defense counsel to impeach Keith Burrow with prior extraneous offenses. Appellant claims that he should have been allowed to cross-examine Burrow regarding two events: (1) Burrow’s giving a false name after an arrest, and (2) Burrow’s shooting his stepfather. Neither of these alleged offenses resulted in a conviction. Appellant claims the extraneous offenses are admissible under Texas Rules of Evidence 401 and 611(b).

Rule 401 defines “relevant evidence,” and Rule 611(b) provides that “A witness may be cross-examined on any matter relevant to any issue in the case, including credibility.” These rules allow a party to introduce relevant evidence, including evidence regarding credibility, so long as there is no other rule requiring exclusion. In the present case, there is another rule that requires exclusion of the evidence— Texas Rule of Evidence 608. ■

Rule 608 limits the ability of a party to introduce evidence regarding the character of a witness. “Specific instances of the conduct of a witness, for the purpose- of attacking or supporting the witness’ credibility, other than conviction of a crime as provided in Rule 609, may not be inquired into on cross-examination of the witness nor proved by extrinsic evidence.” Rule 608(b). The evidence appellant wished to offer did indeed constitute specific instances of conduct but were not prior convictions under Rule 609. The trial court properly excluded the evidence. Points of error nine and ten are overruled.

3.Veronica’s Out-of-Court Statement

In point of error eleven, appellant contends that the trial court erroneously admitted, in violation of the hearsay rule, Graves’ testimony that Veronica told her three weeks before the offense that she (Veronica) was afraid .of. a man named Virgil, and if anyone saw him, to call the sheriffs department. Appellant contends on appeal that the evidence was inadmissible hearsay. We disagree.

“Hearsay” is an out-of-court statement “offered in evidence to prove the truth of the matter asserted.” Texas Rule of Evidence 801(d). If an item of evidence fails to meet this definition, then it is not hearsay. There are also hearsay exceptions, for items of evidence which meet the definition of hearsay but are nevertheless admissible. One exception to the hearsay rule is the declarant’s then existing mental or emotional condition:

A statement of the declarant’s then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, or bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declar-ant’s will.

Texas Rule of Evidence 803(3).

There are two aspects of Graves’ testimony: (1) Veronica’s statement that she was afraid of appellant, and (2) Veronica’s plea to Graves to call the sheriff if anyone saw appellant. Veronica’s statement that she was afraid of appellant was a statement of the declarant’s then existing state of mind, and therefore fell within the Rule 803(3) hearsay exception. Her request to call the sheriffs office, even if it may be characterized as a “verbal expression” under Rule 801(a), was not hearsay. The request was not admitted to show that the sheriffs office was called, but was admitted to show Veronica’s fear of appellant. Point of error eleven is overruled.

4.Gomez’s Out-of-Court Statement

In point of error twelve, appellant contends that the trial court erroneously *689admitted, in violation of the hearsay rule, Sergeant Tolson’s testimony that Gomez identified the shooter as “Ex-boyfriend.” Appellant contends that the statement does not meet the requirements for an “excited utterance” under Rule 803(2). We need not address whether the statement is an excited utterance, however, because Gomez’s statement clearly qualifies as a dying declaration. A statement meets the dying declaration exception to the hearsay rule if the declarant is unavailable at the time of trial and the statement is “[a] statement made by a declarant while believing that the declarant’s death was imminent, concerning the cause or circumstances of what the declarant believed to be impending death.” Rule 804(b)(2). Gomez was unavailable at trial because he was dead. Rule 804(a)(4). A declarant’s belief that death was imminent “may be inferred from the circumstances of the case, such as the nature of the injury, medical opinions stated to him, or his conduct.” Thomas v. State, 699 S.W.2d 845, 853 (Tex.Crim.App.1985). Gomez’s statement was made after he had been shot seven times — from which he never recovered — and his statement concerned the identity of the perpetrator. Given the severity of Gomez’s injuries and the manner in which they occurred, the circumstances were sufficient for the trial court to have inferred that Gomez believed his death was imminent. The trial court did not abuse its discretion in admitting the evidence. Point of error twelve is overruled.

5. Phone Calls

In points of error thirteen and fourteen, appellant contends that the trial court erroneously denied his motions for mistrial after sustaining his objections to testimony about phone calls.10 During the State’s direct examination of appellant’s mother, the prosecutor asked: “Did you know back on October 1st of 1996 that Veronica’s phone was blocked from receiving phone calls from your phone?” Appellant objected that the question assumed facts not in evidence. The trial court sustained the objection and instructed the jury to disregard the question. Appellant’s motion for mistrial was denied. Later, during the State’s direct examination of Veronica’s mother-in-law, the following colloquy occurred:

Q. State whether or not, if it’s within your personal knowledge, that your daughter ever hung up the phone— daughter-in-law ever hung up the phone on Virgil Martinez.

[DEFENSE COUNSEL]: Your Honor, objection. Leading, alleged extraneous matters.

THE COURT: Overruled. Let’s get the answer.

Q. You may answer.

A. Yes. She would hang up on him.

Q. How did you know she was hanging up on Virgil Martinez?

A. I would ask her, who was that you hung up on.

[DEFENSE COUNSEL]: Your Honor, object to hearsay at this point in time.

THE COURT: Sustained.

[DEFENSE COUNSEL]: Ask that the jury be instructed to disregard.

THE COURT: Members of the jury, you’re instructed to disregard the last question by the prosecutor and the partial answer by the witness.

[DEFENSE COUNSEL]: Your Honor, at this time we would move for a mistrial.

THE COURT: Denied.

“Ordinarily, a prompt instruction to disregard will cure error associated with an improper question and answer.” Ovalle v. State, 13 S.W.3d 774, 783 (Tex.Crim.App.2000). We see nothing in the record before us to suggest that the questions and answers provided here were of such a nature that they could not be cured by an *690instruction to disregard.11 Points of error thirteen and fourteen are overruled.

D. Lesser offense

In point of error eight, appellant contends that the trial, court erred in refusing to give his requested instruction on the lesser offense of murder. Despite the forensic evidence showing that all four victims were shot with the same gun, the eyewitness testimony that appellant shot both Veronica and Gomez, and the evidence — both direct and circumstantial— showing that appellant wore a gun holster on the night of the killings, appellant claims that the following scenario was raised by evidence presented at trial: that Veronica shot the children, that she subsequently shot Gomez, and that afterwards, appellant shot Veronica. Appellant bases this claim on three things: (1) Gomez’s statement to Graves, ‘Veronica’s gone crazy. Gun at kids’ heads,” (2) what appellant perceives to be an admission by Graves in the 911 call that she had no knowledge of whether anyone had been shot,12 and (3) the fact that Graves never told the 911 dispatcher that she had seen appellant shoot Gomez or Veronica.

Even if we assumed that appellant’s interpretation of the facts was rational and that those facts raised the lesser included offense of murder,13 any error in that regard was harmless. The jury delivered three guilty verdicts, each on a separate count for capital murder: (1) murdering Veronica and Gomez during the same transaction, (2) murdering Joshua, a child under the age of sbq and (3) murdering Cassandra, a child under the age of six. One death sentence was assessed, based upon the three counts. Only count one is susceptible to the lesser included-offense theory advanced here — appellant could be guilty of non-capital murder as to count one if he killed Veronica or Gomez but not *691both. Counts two and three, each requiring only one victim, are not susceptible to appellant’s lesser-included offense theory, and each of the latter two counts, alone, is sufficient to support a death sentence. Moreover, the jury’s verdicts on counts two and three show that the jury did not believe the lesser-included offense scenario appellant now advances. Point of error eight is overruled.

E. Jury Argument

In point of error fifteen, appellant complains about the trial court’s refusal to grant a mistrial after sustaining a defense objection to a statement made by the prosecutor during argument. The prosecutor argued:

Veronica’s not here to tell you the reason why she was afraid and why the police called. But there’s evidence before you, she is afraid. And I tell you, common sense dictates, common knowledge that sometimes, spurned lovers kill the other person, particularly, when they come in and, perhaps, see her with another person.

Defense counsel objected: “Object to this. He’s arguing outside the record. Not in the evidence.” The trial court sustained the objection and instructed the jury to disregard the prosecutor’s last statement. Appellant’s motion for mistrial was denied.

Even when the prosecutor mentions facts outside the record during argument, an instruction to disregard will generally cure the error. Guidry v. State, 9 S.W.3d 133, 154 (Tex.Crim.App.1999). Assuming, without deciding, that the prosecutor’s argument was improper, that argument was not so extreme as to render ineffective an instruction to disregard. Accordingly, we find that the trial court’s

instruction to disregard cured any error. Point of error fifteen is overruled.

III. PUNISHMENT

A. Parole

In points of error three and sixteen, appellant complains about the trial court’s refusal to permit the jurors to be informed, during voir dire and in jury instructions, that a capital murder defendant who receives a life sentence will not be eligible for parole for forty years. We have consistently decided this issue adversely to appellant’s position, and appellant makes no novel argument that would persuade us to deviate from our precedent. Dewberry v. State, 4 S.W.3d 735, 756 (Tex.Crim.App.1999); Griffith v. State, 983 S.W.2d 282, 289 (Tex.Crim.App.1998), cert. denied, — U.S. —, 120 S.Ct. 77, 145 L.Ed.2d 65 (1999). Points of error three and sixteen are overruled.

B. Voluntary Intoxication

In point of error seventeen, appellant contends that the trial court erred in refusing to submit in the punishment phase jury charge an instruction on voluntary intoxication as a mitigating factor. Appellant cites evidence presented in the punishment phase that he had admitted to consuming alcohol, PCP, and cocaine before he was picked up by the authorities, and that a psychiatrist subsequently prescribed for him Haldol, an anti-psychotic drug. But no evidence was presented that appellant used these drugs at or before the time of the offense or that he was intoxicated at the time of the offense. Absent such evidence, appellant was not entitled to a charge on intoxication as a mitigating factor.14 Rodriguez v. State, 899 S.W.2d *692658, 668 (Tex.Crim.App.), cert. denied, 516 U.S. 946, 116 S.Ct. 385, 133 L.Ed.2d 307 (1995). Point of error seventeen is overruled.

In points of error eighteen and nineteen, appellant contends that the trial court erred in overruling his objections to State’s arguments involving matters outside the record. Appellant’s complaint involves the following colloquies:

PROSECUTOR: And based on this evidence, this — this rates as one of the worst crimes, one of the worst killings not only in Brazoria County but the . State of Texas.

DEFENSE COUNSEL: Objection, your honor. That’s not in the record.

THE COURT: Stay in the record, counsel.

PROSECUTOR: The evidence shows you, these were execution killings. 26 to 28 bullets. The family of the murdered victims, the family — the victims themselves, they cry out to you, for the death penalty in this case. There’s no more—

DEFENSE COUNSEL: Objection, your Honor. Not in the record, either. Absolutely no evidence of that.

THE COURT: Overruled.

PROSECUTOR: Justice in this case requires you, because we told you from day-one, what we wanted was a fair jury, a jury that would do justice in this case.

You know, think about the nurses in the penitentiary. Think about the secretaries. Think about the guards.

DEFENSE COUNSEL: Objection, your Honor. Nothing in the record about nurses and secretaries.

THE COURT: Overruled.

PROSECUTOR: Think about the other people this defendant is going to come into contact with. Think about the other people that you can protect by giving the death penalty in this case.

There are two prosecutorial comments that appellant claims are outside the record: (1) that the victims and their families cry out for the death penalty, and (2) that prisons are staffed by nurses and secretaries. Appellant is correct that neither of those items appear in the record, but the comments can arguably be justified on other grounds: comment (1) as a plea for law enforcement and comment (2) as a statement of matters within the realm of common knowledge. See Guidry, 9 S.W.3d at 154 (Tex.Crim.App.1999)(pleas for law enforcement permissible); Nenno v. State, 970 S.W.2d 549, 559 (Tex.Crim.App.1998) (common knowledge is an exception to the prohibition against arguing facts outside the record). However, we will assume, without deciding, that the comments are not covered by these arguable justifications, and address the issue of harm.

The first question is whether to assess harm under the standard for constitutional errors or for nonconstitutional errors. For arguments that strike over the shoulders of counsel, we have held that the harm standard for nonconstitutional errors — found in Texas Rule of Appellate Procedure 44.2(b) — applies. Mosley v. State, 983 S.W.2d 249, 259 (Tex.Crim.App.1998), cert. denied, 526 U.S. 1070,119 S.Ct. 1466, 143 L.Ed.2d 550 (1999). Mosley’s holding suggests that most comments that fall outside the areas of permissible argument will be considered to be error of the noneonstitutional variety. Comments upon matters outside the record, while outside the permissible areas of jury argument, do not appear to raise any unique concerns that would require us to assign constitutional status. We shall therefore apply the standard of harm for nonconsti-tutional errors.

Rule 44.2(b) provides that a non-constitutional error “that does not affect substantial rights must be disregarded.” In Mosley, we held that determining harm under that standard in improper argument cases requires balancing the following *693three factors: (1) severity of the misconduct (prejudicial effect), (2) curative measures, (3) the certainty of conviction absent the misconduct. Id. Appellant argues that this test applies to punishment, except that the third factor would involve the certainty of “the punishment assessed.” We agree that the Mosley test would apply to punishment, at least in a capital case, with the third factor so modified. We proceed to analyze the comments under the Mosley factors.

The degree of misconduct, if any, was relatively mild in the present case. The prosecutor’s comment that the victims and their families cry out for the death penalty appears to be intended as a plea for law enforcement. The jury was in a position to know that victims who are dead cannot presently cry out for the death penalty, and that, given the facts surrounding their deaths, no such cries were made before they died. Nor would the jurors be surprised to hear that the victims’ families would be upset with appellant or that they would want retribution. And the prosecutor did not attempt, through this argument, to convey any specific facts about the effect of the victims’ deaths upon their families. Instead, the prosecutor was pleading with the jury to give the death penalty because the record before the jury showed that the defendant deserved it. To the extent that the prosecutor conveyed facts outside the record, such facts had no tendency to adversely influence the jury against appellant beyond the influence exerted by a wholly legitimate plea for law enforcement.

The prosecutor’s comment that appellant could be- a threat to nurses and secretaries was also, at most, mildly improper. That prisons would employ personnel to treat medical problems and clerical workers to handle paperwork is a matter of common knowledge. Whether such persons would be nurses and seere-taries or would be other personnel performing such functions is of little significance. The prosecutor’s main point — that appellant would be a threat to non-prisoners in prison — was an entirely legitimate point to make. The first Mosley factor carries very little weight in the present case.

The second factor may be quickly dispensed with. There was no curative instruction, and the State did nothing to emphasize the allegedly erroneous comments made. The comments were a very small portion of the State’s entire argument at punishment.

The third factor weighs heavily in the State’s favor. Appellant’s crime was especially egregious. He killed not just one, but four people, including two small children. The apparent motive for these killings was jealousy over an ex-girlfriend. A former girlfriend testified at the punishment stage that appellant had exhibited aberrant behavior after their relationship ended: calling her names when she broke the relationship off, subsequently leaving messages on her voice mail at work, and calling her at home numerous times after she told him not to call. She also testified about a disturbing incident in which appellant came into her house uninvited with pizza for her children, slammed his fist on her kitchen table while uttering profanities about someone he used to date, and finally stormed back out after being asked several times to leave. After his arrest appellant threatened hospital attendants with a heavy plastic table knife, and appellant was caught concealing a welding rod while being transported during trial. There was also evidence at trial that appellant had attempted to fake insanity after he was arrested for the present offense. This evidence shows a volatile, obsessive, and non-repentant individual who would resort to violence — even extreme violence — when his relationships with women did not work out.15

*694Given the mildness of the prosecutor’s comments and the strength of the evidence supporting appellant’s death sentence, we find that any errors associated with .those comments were harmless. Points of error eighteen and nineteen are overruled.

The judgment of the trial court is affirmed.

WOMACK, J., filed a concurring opinion.

PRICE, HOLLAND, and JOHNSON, JJ., concurred in the result.

WOMACK, J.,

filed a concurring opinion.

I join the judgment of the court and, except as to points of error 18 and 19, its opinion. In my view there was no error as to those points, and therefore the issue of harmless error need not be reached.

OPINION

BAIRD, Judge.

Appellant was convicted of capital murder pursuant to Tex.Penal Code Ann. *335§ 19.03(a)(6). The jury affirmatively answered the punishment issues submitted pursuant to Tex.Code Crim.Proc.Ann. art. 37.071(b).1 Punishment was assessed at death. Id., at (e). Appeal to this Court is automatic. Id., at (h). Appellant raises twenty-one points of error. We will affirm.

I.

On September 12, 1990, at approximately 8:00 p.m., members of the Beaumont Fire Department responded to a fire alarm in a building located at 3420 Fannin Street in Beaumont. John Showman, a Captain with the Beaumont Fire Department, entered the building and located the alarm in the waiting room of a massage therapy office belonging to one of the victims. Showman noticed the air in the room appeared hazy and furniture was strewn around the room as if there had been a struggle. He also noticed a bloodstained, partially broken window opening into another room. He then observed one of the victims, Katherine Thompson, lying injured on the waiting room floor and called to other fire fighters for assistance.2 As fire fighters rendered medical aid to Thompson, another fire fighter, Mike Randall, peered through the broken window and observed the second victim, Shelly Cutler, sitting on the floor in the second room, injured. Finding the door to the room locked, Randall climbed through the broken window and assessed Cutler’s condition. He observed Cutler had been shot in the head. Both victims were transported to a local hospital and shortly thereafter died of their injuries.

While investigating the crime scene, police recovered Thompson’s appointment book and a patient application form'. The appointment book indicated Thompson had a 7:30 appointment with Cutler and a 6:30 appointment with a Ricky Dennis. The book also contained a Lumberton telephone number for Dennis. The patient application form listed a Ricky Dinkins along with a different telephone number and a place of employment at the American Valve and Hydrant Company. Because of the similarity of the names, the police attempted to contact the parties listed but discovered both telephone numbers were out of order.

The next day, September 13, Mike Sheffield, a Beaumont police investigator, and Robert Hobbs, a Jefferson County District Attorney investigator, went to appellant’s place of employment, American Valve and Hydrant Company, in Beaumont and questioned appellant. In the course of the questioning, the detectives sought consent to search appellant’s car but appellant refused. Appellant denied knowing Thompson and denied being in Beaumont the night of the offense. At some point, appellant mentioned he “wanted to talk to someone” and the detectives ceased their questioning. They then arrested appellant on an outstanding misdemeanor warrant and transported him to the Jefferson County Jail.

Later that afternoon, while the detectives were attempting to obtain a search warrant for appellant’s car, appellant contacted Sheffield and gave his written consent to search. Appellant also stated that the detectives would find a .357 revolver in the trunk. A search of the car uncovered various items, including a .357 revolver and two boxes of ammunition.

During the morning of September 14, Sheffield and Hobbs interrogated appellant *336in the Jefferson County District Attorney’s Office. During the interrogation, appellant admitted being at the crime scene on the night of the offense. Appellant stated he had attempted to meet with Thompson to discuss some bad checks appellant had written, but was unable to do so because the building was locked. He then heard a fire alarm and observed a black male exit the building and run away. Appellant also stated he had purchased a .357 revolver from Leger’s Pistol and Rifle Range in Beaumont. The detectives then obtained appellant’s written consent to search various locations, including his locker at work and his home in Sour Lake. Appellant accompanied the detectives as they executed the searches. While searching appellant’s home the detectives seized a pair of appellant’s blue jeans which appeared to have blood stains on the legs and cuffs. Before returning to Beaumont, the detectives escorted appellant to his grandmother’s house where appellant spoke with his grandmother.

Upon returning to Beaumont, the detectives again interrogated appellant. During the interrogation, appellant asked to call his mother in Atlanta, Georgia and the officers complied with the request. After appellant finished speaking with his mother, the detectives appraised him of the evidence linking him to the offense. At this point, appellant agreed to provide a written statement on the condition he could explain the stresses he was under.

In his statement, appellant stated he was twenty-seven years of age and worked as an assembly specialist at American Valve and Hydrant. He professed that he was under considerable stress because of the recent break up of a personal relationship as well as a shoulder injury from work which required frequent medication. Because of his injury, appellant believed his employer was harassing him in an attempt to fire him. He further stated he was having severe financial difficulties and had bounced many checks. On the day of the offense, appellant left work around 1:15 p.m. to go to therapy. He left the doctor’s office around 3:00 p.m. or 3:30 p.m. and called his grandmother. After that, appellant went to his step-sister’s home to help her move. At 6:00 p.m., appellant left to go to Thompson’s office for a 6:30 p.m. appointment which he had made under the name Ricky Dennis. Appellant arrived around 6:45 p.m. or 7:00 p.m. Before entering the building, appellant placed a .25 caliber automatic and a .357 revolver inside a sling he wore for his injured shoulder. Appellant entered the building and met with Thompson in her office. After talking for a while, the two began to argue. As the argument progressed, Thompson pushed appellant towards the door into the waiting room where another woman sat. During the altercation, Thompson struck appellant’s injured arm, hurting him. At one point during the altercation, the .25 caliber automatic fell out of appellant’s sling. Appellant retrieved the gun, fired a shot, and the gun jammed. The .357 also fell out of appellant’s sling and hit the floor. Appellant retrieved the .357 from the floor but maintained he did not remember any other events except for a fire alarm sounding as he ran out the doorway leading into the hall. In the parking lot, appellant’s car would not start and appellant had to raise the hood and hit a reset button on the steering column. He then proceeded to drive to his grandmother’s house in Sour Lake. At one point, appellant noticed he was no longer wearing his sling. While driving along the highway, he emptied the bullets from the .357 and threw them out the window. Appellant remained at his grandmother’s house until 10:00 p.m. or 10:15 p.m. and then drove to his step-sister’s house where he remained until 11:00 p.m. Upon arriving home, appellant walked to a pond behind his house and attempted to unjam the .25 caliber automatic. The gun came apart and appellant threw it into the pond. He then went to his room, took some pain medicine, and fell asleep. The next day, before work, appellant drove to his grandmother’s house for coffee and took more pain medication. He then went to work where he was later met by Sheffield and Hobbs and subsequently arrested on a hot cheek warrant. Appellant was indicted for capital murder pursuant to Tex.Penal *337Code Ann. § 19.03(a)(6)(A).3

At trial, the State presented testimony by William Fincher, the owner of a janitorial service who was at 3420 Fannin Street around 7:30 p.m. on September 12, looking for an employee. Fincher testified he saw appellant looking under the hood of an old model yellow Chevrolet. Shortly thereafter, appellant started the car and drove away.

Louis Leger owner of Leger’s Pistol and Rifle Range testified that on September 11, he sold appellant a .357 revolver and two boxes of ammunition, one of .38 caliber bullets and the other of .357 caliber. Matching the serial number on the .357 with the notation in his records, Leger identified the .357 seized in the search of appellant’s car as the weapon sold to appellant.

William Showman and Mike Randall testified concerning the circumstances in which they discovered the victims while answering a fire alarm.

Dr. Thomas J. Molina, the pathologist who performed the autopsies, testified Thompson suffered two gunshot wounds, one to her head and the other to her abdomen. Both were fatal. Molina further testified that the stippling on the body indicated that both shots were fired at extremely close range, the abdomen wound resulting from a contact shot. The autopsy of Cutler indicated she died of a single gunshot wound to the head.

William Tatum, a sergent in the identification section of Beaumont Police Department, testified the police recovered an arm sling from the crime scene as well as an appointment book and a client information sheet with appellant’s name and place of employment. The police also recovered four lead slugs, either .38 or .357 caliber, and a number of shell casings and lead bullet fragments.4 Also recovered was a .25 caliber bullet. Tatum further testified that based on the entry point in the wall made by one of the slugs, he surmised Thompson had been either kneeling or sitting when she had been shot in the head. He also testified that a lead slug was recovered from the doorknob of the door to the room where Cutler was discovered.

Ray Klein, a firearms examiner for the Houston Police Department, testified he conducted ballistics tests on the .357 revolver and the ammunition seized from appellant, as well as the lead slugs, casings and bullet fragments recovered from the crime scene. By comparing the rifling on ammunition test fired in appellant’s .357 revolver with the rifling on the slugs recovered from the crime scene, Klein concluded the slugs recovered at the crime scene were fired from appellant’s .357 revolver.

Richard Reem, a forensic serologist for the Federal Bureau of Investigation testified he analyzed appellant’s blood stained blue jeans and a blood sample taken from Thompson. Based on the sequence of enzymes in Thompson’s blood sample, PGM 1 plus, haptoglobin 2 and GC 1-S, Reem determined that the blood on appellant’s pants was consistent with - Thompson’s blood type. Reem explained that only one person in twenty has the same enzyme sequence in their blood.

In his case-in-chief, appellant presented seven witnesses, each of whom testified essentially that appellant was not aggressive or violent.

The jury found appellant guilty of capital murder.

During the punishment phase, the State presented only two witnesses, Sgt. Tatum, and Detective Hobbs. Tatum testified concerning the details of the murders based on his examination of the crime scene. Tatum testified Thompson was first shot in the abdomen just outside the doorway from the inner office to the waiting room. Comparing the entrance and exit wound in Thompson’s body to the position of the bullet entry point in the wall, Tatum surmised Thompson was *338doubled over when appellant shot her in the abdomen. Tatum further testified that based on the position of one of the bullet entry points in the wall, thirty-one inches off the ground, in relation to Thompson’s head wound, appellant shot Thompson a second time as she was either sitting or kneeling on the floor.

Tatum also testified concerning the details of Cutler’s murder. Tatum testified the bullet in the doorknob of the room in which Cutler was found was fired after Thompson was shot. He stated this revealed appellant’s attempt to get to Cutler after she locked herself in the room. A wicker shelf which covered an unused receptionist window looking into the room had been removed and the window glass broken. Tatum speculated the blood covering the unbroken glass came from appellant’s hands as he attempted to break the window. Tatum also testified the telephone in the room was off the hook when Cutler was discovered, indicating she was attempting to make a telephone call before being shot. Tatum concluded it was possible for someone to reach through the window and shoot Cutler as she crouched on the floor.

Detective Hobbs testified about appellant’s demeanor during the investigation. He stated appellant was emotionless when initially interrogated and showed no concern that he was suspected in a capital murder. Further, appellant appeared to be unconcerned during much of his subsequent interrogations.

In his defense, appellant presented several character witnesses. One witness, a Jefferson County Sheriffs Department lieutenant assigned to jail duty testified he was acquainted with appellant from his year and a half incarceration pending trial and, during that time, appellant had no disciplinary problems. He further stated that appellant had, at one point, reported a possible jail break.

Nine other witnesses also testified on behalf of appellant each testifying, in essence, that the murders were aberrations in appellant’s normally non-violent character. Further, each expressed the belief appellant was unlikely to commit future acts of violence.

The jury affirmatively answered the three statutory punishment issues and the trial judge sentenced appellant to death.

We now turn to appellant’s points of error.

II.

In his first two points of error, appellant contends the trial judge erred by refusing to set aside the indictment because it failed to allege the offense of capital murder. Specifically, appellant complains the indictment failed to assert a culpable mental state in alleging the second murder and therefore faded to allege a capital murder. The indictment read, in pertinent part:

... RICHARD EUGENE DINKINS ... did then and there intentionally and knowingly cause the death of an individual, KATHERINE THOMPSON, by shooting her with a deadly weapon, to wit: a firearm; and the said RICHARD EUGENE DINKINS did then and there cause the death of an individual, SHELLY CUTLER, by shooting her with a deadly weapon, to-wit: a firearm, and both of said murders were committed during the same transaction.

In general, an indictment must plead every element which must be proven at trial. Whitehead v. State, 745 S.W.2d 374, 376 (Tex.Cr.App.1988) (citing Harrell v. State, 643 S.W.2d 686 (Tex.Cr.App.1982); and, Vinson v. State, 626 S.W.2d 536, 537 (Tex.Cr.App.1981)). Naturally, this includes the culpable mental state of the offense. Thompson v. State, 697 S.W.2d 413, 415 (Tex.Cr.App.1985). If an indictment fails to allege a culpable mental state for an offense, it is defective and is subject to a motion to quash. Id. See also, Swope v. State, 805 S.W.2d 442, 444 (Tex.Cr.App.1991).

Nevertheless, we have consistently held the State is not required to allege the constituent elements of an offense constituting the aggravating feature of a capital murder, even in the face of a motion to quash. Barnes v. State, 876 S.W.2d 316, 323 (Tex.Cr.App.1994); Hathorn v. State, 848 S.W.2d 101, 108-109 (Tex.Cr.App.1992); Ramirez v. State, 815 S.W.2d 636, 642 (Tex.Cr.App.1991); Trevino v. State, 815 S.W.2d 592, 619 (Tex. *339Cr.App.1991); Beathard v. State, 767 S.W.2d 423, 431 (Tex.Cr.App.1989); Marquez v. State, 725 S.W.2d 217, 236 (Tex.Cr.App.1987); Hogue v. State, 711 S.W.2d 9, 14 (Tex.Cr.App.1986); Andrade v. State, 700 S.W.2d 585, 589 (Tex.Cr.App.1985); Hammett v. State, 578 S.W.2d 699, 708 (Tex.Cr.App.1979); and, Smith v. State, 540 S.W.2d 693, 697 (Tex.Cr.App.1976). Consequently, we hold that in the case presently before us, the indictment was not defective for failing to allege a culpable mental state of the second murder. Appellant’s first and second points of error are overruled.

III.

In his third point of error, appellant contends the jury charge erroneously authorized a conviction of capital murder without requiring that the second murder be committed intentionally or knowingly as required by § 19.03(a)(6). For the following reasons, we disagree.

In contrast to the indictment, which serves a notice function to the defendant, the function of the jury charge is to instruct the jury on the law applicable to the case. Abd-nor v. State, 871 S.W.2d 726, 731 (Tex.Cr. App.1994); Benson v. State, 661 S.W.2d 708, 713 (Tex.Cr.App.1982); and, Williams v. State, 547 S.W.2d 18, 20, 22 (Tex.Cr.App.1977). Because the charge is the instrument by which the jury convicts, Benson, 661 S.W.2d at 715, the charge must contain an accurate statement of the law and must set out all the essential elements of the offense. Id., 661 S.W.2d at 713; and, Zuckerman v. State, 591 S.W.2d 495, 496 (Tex.Cr.App.1979).

When we review a charge for alleged error, we must examine the charge as a whole instead of a series of isolated and unrelated statements. Holley v. State, 766 S.W.2d 254, 256 (Tex.Cr.App.1989); and, Inman v. State, 650 S.W.2d 417, 419 (Tex.Cr.App.1983). Capital murder and murder were defined in the abstract portion of the charge,5 but the application portion did not allege a culpable mental state for the second murder. The application portion permitted the jury to convict if it found appellant

... intentionally or knowingly cause[d] the death of KATHERINE THOMPSON, by shooting her with a deadly weapon, to-wit: a firearm; and the said [appellant] did then and there cause the death of an individual, SHELLY CUTLER, by shooting here with a deadly weapon, to wit: a firearm, and both of said murders were committed during the same criminal transaction, you shall find the defendant guilty of the offense of Capital Murder.

The application portion permitted the jury to convict appellant of capital murder only if it found both killings were murders. “Murder” is a term of art which is defined in the Penal Code. See, § 19.02(a)(1); and, § 19.03. The abstract portion of the charge provided that definition. See, n. 5, supra. Thus, the jury was instructed that a person commits capital murder only if both killings were committed intentionally or knowingly.6 See, Vuong v. *340 State, 830 S.W.2d 929, 941 (Tex.Cr.App.1992). Consequently, the jury charge was not defective. Appellant’s third point of error is overruled.

IV.

In his fourth and fifth points of error, appellant contends § 19.03(a)(6) is both unconstitutional on its face and as applied. Because we will only entertain challenges to the constitutionality of a statute as it applies to a particular defendant, McBride v. State, 862 S.W.2d 600, 610-611 (Tex.Cr.App.1993); and, James v. State, 772 S.W.2d 84, 91 (Tex.Cr.App.1989), vacated, 493 U.S. 885, 110 S.Ct. 225, 107 L.Ed.2d 178 (1989), affirmed, 805 S.W.2d 415 (Tex.Cr.App.1990), we need only address appellant’s latter point of error.

Relying on First v. State, 846 S.W.2d 836 (Tex.Cr.App.1992), appellant contends § 19.03(a)(6) is unconstitutional because the statute, as incorporated in “the application paragraph of the charge did not allow the jury to find whether or not appellant actually committed the intentional or knowing [second] murder.” [Appellant’s Brief, pg. 20]. Appellant claims this violates the Eighth Amendment’s prohibition against the arbitrary and capricious application of the death penalty because it permits the imposition of a death sentence when the aggravating offense does not rise to an intentional murder. He further claims the statute is unconstitutionally vague because it can be interpreted to either dispense with the mens rea requirement for the second murder or to require both murders to be committed intentionally or knowingly.

Much of appellant’s argument was addressed in our resolution of the third point of error. Although the application paragraph did not allege a culpable mental state with regard to the second murder, the application paragraph, as well as the definitional portion of the charge, required a jury to find that both killings were “murders” in order for the offense to be capital murder. The definitional portion of the charge defined “murder” as intentionally or knowingly causing the death of an individual. Thus, the charge did not permit the jury to convict appellant unless they found both killings were committed either intentionally or knowingly. See, Vuong, 830 S.W.2d at 941.

Moreover, appellant’s reliance on First is misplaced because First addressed a punishment issue under art. 37.071. Id., 846 S.W.2d at 838. In First, the jury charge was defective because it did not permit the jury to consider the provocation of the second deceased, thereby preventing the jury from considering a mitigating circumstance. Id., at 842. In the instant case, the jury was instructed in the definitional portion that it was not to convict appellant of capital murder unless it first determined both murders had been committed intentionally or knowingly.

Further, we find no merit in appellant’s vagueness claim because the Penal Code adequately limits those acts which constitute “murder.” The Code Construction Act provides that words having a technical or particular meaning must be construed according to that meaning. Tex.Gov’t Code Ann. § 311.011(b) (Vernon 1988). The Penal Code section which prohibits capital murder, § 19.03(a), further limits the kind of murder which may form the basis of a capital offense, namely, murder pursuant to § 19.02(a)(1). Finally, nowhere in our review of § 19.03(a)(l)-(a)(6) do we find an indication that any type of homicide other than murder under § 19.02(a)(1) will suffice to form the basis of a capital offense. Therefore, we hold § 19.03(a)(6) is not unconstitutionally vague for failure to specify a culpable mental state for the second homicide. Accordingly, appellant’s fourth and fifth points of error are overruled.

V.

In his sixth point of error, appellant contends he had the right to be tried pursuant to the amended version of art. 37.071, which *341was applicable to offenses committed after September 1,1991.7 He also contends in the seventh point of error that the trial judge erred in declaring a mistrial after learning the venire had been instructed pursuant to the amended version of art. 37.071(b).

The offense for which appellant was charged allegedly occurred on September 12, 1990. During voir dire, the State and appellant discussed legal principles with the veniremembers based upon the amended version of art. 37.071 which applied only to offenses occurring after September 1, 1991. At one point in the proceedings, the State advised the trial judge that it believed any prosecution under the amended art. 37.071 would be void. Appellant expressed his desire to proceed under the amended statute and refused to consent to a mistrial. The trial judge then declared a mistrial over appellant’s objection. Following a second voir dire, appellant filed a motion to declare the pre-amended art. 37.071 unconstitutional and also elected to be tried under the amended art. 37.071. The trial judge denied appellant’s motion. Appellant re-urged Ms motion at the conclusion of trial and requested the jury be instructed according to the amended version of art. 37.071 but the trial judge again refused.

Appellant concedes that our holding in Nichols v. State, 754 S.W.2d 185, 204 (Tex.Cr.App.1988), belies Ms claim that he had the right to elect to be prosecuted under the amended statute.8 He adds a constitutional dimension to Ms claim, however, by raismg an Equal Protection challenge under the Urnted States and Texas Constitutions. Appellant claims he was demed Equal Protection because he was demed the broader provisions of the amended statute wMch were available to those defendants who committed capital murder after September 1, 1991.

We need only address appellant’s Federal claim because appellant failed to raise Ms State claim at trial. Under the Equal Protection Clause of the Fourteenth Amendment, when a classification does not implicate a “fundamental” right,9 or place a *342burden on a “suspect” class of persons,10 the proper standard for review is to determine whether there is a rational basis for the different treatment, which is to say, whether the classification bears a rational relationship to a legitimate state interest. City of Cleburne, Tex. v. Cleburne Living Center, 473 U.S. 432, 440, 105 S.Ct. 3249, 3254, 87 L.Ed.2d 313 (1985); Clements v. Fashing, 457 U.S. 957, 963, 102 S.Ct. 2836, 2843, 73 L.Ed.2d 508 (1982); City of New Orleans v. Dukes, 427 U.S. 297, 303, 96 S.Ct. 2513, 2516-2517, 49 L.Ed.2d 511 (1976); James v. State, 772 S.W.2d 84, 92 (Tex.Cr.App.1989); and, Clark v. State, 665 S.W.2d 476, 480-481 (Tex.Cr.App.1984). “Rational basis” review is highly deferential towards the States when economic or social legislation is at issue. Dallas v. Stanglin, 490 U.S. 19, 26-27, 109 S.Ct. 1591, 1594-1595, 104 L.Ed.2d 18 (1989); and, Cleburne, 473 U.S. at 440, 105 S.Ct. at 3254. Courts also defer to penal legislation. See, McGowan v. Maryland, 366 U.S. 420, 422-428, 81 S.Ct. 1101, 1103-1106, 6 L.Ed.2d 393 (1961). Accordingly, a reviewing court should not strike down a classification unless it is “based solely on reasons totally unrelated to the pursuit of the State’s goals and only if no grounds can be conceived to justify them.” Clements, 457 U.S. at 963, 102 S.Ct. at 2843. See also, John v. State, 577 S.W.2d 483, 485 (Tex.Cr.App.1979) (“A legislative body has a right to make a classification ... for the purpose of serving legitimate aims if the limits of the class are not unreasonable or arbitrary.”); and, Rotunda & Nowak, Treatise on Constitutional Law: Substance and Procedure, 2nd, § 18.3, p. 27 (1992).

Neither the Supreme Court nor this Court has recognized criminal defendants in general as constituting a suspect class. Therefore, appellant’s claim is subject to rational basis review unless he shows he was deprived of a fundamental right when he was prosecuted under the pre-amended version of art. 37.071. We find no fundamental right at issue. Art. 37.071 was amended by the Legislature in light of Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989), in which the Supreme Court held art. 37.071, as applied to Penry, violated the Eighth and Fourteenth Amendments because it did not permit the jury to consider and give effect to evidence which mitigated against a sentence of death. See Id., 492 U.S. at 315-328, 109 S.Ct. at 2945-2952. Penry, however, did not wholly invalidate art. 37.071. Indeed, we have repeatedly rejected Penry challenges to the pre-amended art. 37.071, holding the statute permitted the jury to fully consider evidence which mitigated against the death penalty. See, Zimmerman v. State, 860 S.W.2d 89, 101-102 (Tex.Cr.App.1993); Gunter v. State, 858 S.W.2d 430, 445-447 (Tex.Cr.App.1993); Beavers v. State, 856 S.W.2d 429, 433 (Tex.Cr.App.1993); Delk v. State, 855 S.W.2d 700, 709 (Tex.Cr.App.1993); Robinson v. State, 851 S.W.2d 216, 236 (Tex.Cr.App.1993) (Op. on reh’g); Ex parte Harris, 825 S.W.2d 120, 122 (Tex.Cr.App.1991); Earhart v. State, 823 S.W.2d 607, 632-633 (Tex.Cr.App.1991); Lewis v. State, 815 S.W.2d 560, 567 (Tex.Cr.App.1991); Ex parte Ellis, 810 S.W.2d 208, 212 (Tex.Cr.App.1991); and, Ex parte Baldree, 810 S.W.2d 213 (Tex.Cr.App.1991). Thus, it is clear the Eighth Amendment is not violated by sentencing a convict under pre-amended art. 37.071 unless the jury is precluded from considering and giving effect to mitigating evidence. Satterwhite v. State, 858 S.W.2d 412, 425-426 (Tex.Cr.App.1993). In the instant ease, appellant does not contend, nor does the record suggest, the jury was unable to consider and give effect to his mitigating evidence under the statutory punishment issues which applied at the time of his trial. Consequently, we hold appellant’s right to Equal Protection under the Fourteenth Amendment was not violated by prosecuting him under pre-amended art. 37.071.11

*343We next move to appellant’s seventh point of error contending the trial judge erred by declaring a mistrial sua sponte after being notified the litigants had used erroneous legal principles during the voir dire. Although he concedes jeopardy had not attached at the time the judge declared the mistrial, appellant nevertheless contends no manifest necessity existed to justify a mistrial. We believe appellant’s legal analysis is incorrect. The doctrine of manifest necessity is inextricably fused with the concept of jeopardy and is based upon the principle that once a jury is impaneled and sworn, but for a few limited exceptions, a defendant has the right to have his guilt or innocence resolved by that particular jury. Oregon v. Kennedy, 456 U.S. 667, 671-672, 102 S.Ct. 2083, 2087, 72 L.Ed.2d 416 (1982); Arizona v. Washington, 434 U.S. 497, 503-507, 98 S.Ct. 824, 829-830, 54 L.Ed.2d 717 (1978); United States v. Jorn, 400 U.S. 470, 479-481, 91 S.Ct. 547, 554-555, 27 L.Ed.2d 543 (1971); and, United States v. Perez, 22 U.S. (9 Wheat.) 579, 6 L.Ed. 165 (1824). See also, Alvarez v. State, 864 S.W.2d 64, 65 (Tex.Cr.App.1993). Where, as in the instant case, the jury has neither been impaneled nor sworn, jeopardy principles do not prevent a trial judge from declaring a mistrial. See, Fields v. State, 627 S.W.2d 714, 720 (Tex.Cr.App.1982). Appellant’s sixth and seventh points of error are overruled.

VI.

In his eighth point of error, appellant contends the trial judge erred in restricting the voir dire examination of a venireman concerning reasonable doubt. During individual voir dire of venireman Smith by defense counsel, the following exchange occurred:

[Appellant]: I think the Court will instruct you — now have a definition of reasonable doubt. We haven’t for a long time, but last November the Court of Criminal Appeals gave us a definition that includes this statement. A reasonable doubt is the kind of doubt that would make a reasonable person hesitate to act in the most important of his affairs. Okay?

[Venireman]: (Nodding head)

Q: Would you consider sitting on the jury in a capital murder case the most important of your affairs?

A: Yes, I guess.

Q: That is. That’s the most important kind of—

A: Um hum.

Q: —jury service you can render. So if you have the kind of doubt at the punishment phase of a trial that would cause you to hesitate to answer those questions yes, how are you going to answer them?

A: Be no.

Q: Okay. At the punishment phase of this trial, if you have the kind of doubt that would make you hesitate to answer those questions yes, what would your oath require you to do?

[The State]: I’ll object to that, Your Hon- or. His oath does not require him to not hesitate to answer the question.

[The Court]: Sustain the objection.

[Appellant]: At the conclusion of this juror, could I read my questions into the record again, Your Honor?

[The Court]: Sure.

[Appellant]: Okay.

In a hearing following the examination of venireman Smith, defense counsel contended his questioning of Smith was proper.

[Appellant]: Okay. Your Honor, the prosecutor has asked almost all of the potential jurors that if the State proves it to them beyond a reasonable doubt, they are going to answer these questions yes, and if they don’t prove it to them, are they going to answer them no. My questions deal with the definition of reasonable doubt. And under the law, and I believe the Court will instruct them that if they have a doubt that would make a reasonable person hesitate to answer those questions yes, then their *344oath requires them to answer no. And that’s what I’d like to ask this juror about is if they had that kind of doubt that falls under that definition of reasonable doubt, are they going to follow then-oath and answer the questions no, are they going to answer them yes, in contradiction to their oath.

[The Court]: State?

[The State]: I don’t believe that’s what the definition of reasonable doubt in conjunction with the oath requires, Judge. I think that this is in here as an example of the kind of doubt, and I don’t think that it goes to the specifics of the particular case, where if the juror says, you know, well, we need to think about this a little while, that that’s the hesitation that to follow their oath, they have to automatically then answer these questions no. I think because the statement starts out it is the kind of doubt. It’s giving that as an example. It’s not meant to be specific to their deliberations as a juror. And he’s giving this juror a false impression when he tells him that to follow his oath, if he has any kind of hesitation, to answer the question, then he’s got to answer it no. I think it’s misleading. I think, in fact in the past the defense attorney has asked similar questions, but not tied them to the oath. And I think those questions were proper. But I think when he says he’s required by his oath to automatically, if on any hesitation answer the question a specific way. That’s improper.

[The Court]: Okay. And you are saying he should not be allowed to ask that question about reasonable doubt?

[The State]: No, sir. That’s not what I’m saying. I have not objected in the past to some fairly lengthy and confusing questions about reasonable doubt. My problem with it is when he makes it specific to the answer and says that he’s required by his oath, that if he hesitates in any manner that he’s got to then answer the question no. And you know, there could be any number of reasons to hesitate. And once again, this is by way of example and not by way of a specific order to the juror.

[The Court]: That’s fine. I’ll keep it out. If I’m wrong, you got a free shot.

Bring him back.

We’re through.

[Appellant]: On that particular issue you would rule—

[The Court]: Yes, sir. I’m going with the State, and we’ll find out.

[Appellant]: So the State’s objection is sustained, Your Honor?

[The Court]: Yes, sir.

[Appellant]: And I’ll not be allowed to ask those questions?

[The Court]: That’s correct.

Appellant contends he was entitled to question venireman Smith concerning his understanding of “reasonable doubt” to determine if he could properly apply the law. The State claims appellant’s linking his definition of reasonable doubt with the juror’s oath, Tex.Code Crim.Proc.Ann. art. 35.22, was improper because it misled the juror into believing he was obligated to answer the punishment issues “no” without deliberating over the evidence. We disagree.

We have long acknowledged that voir dire is an integral part of defense counsel’s role in providing adequate legal assistance because it allows counsel to intelligently exercise peremptory challenges and challenges for cause during the jury selection process. McCarter v. State, 837 S.W.2d 117, 120 (Tex.Cr.App.1992); Ex parte McKay, 819 S.W.2d 478, 482 (Tex.Cr.App.1990); Gardner v. State, 730 S.W.2d 675, 689 (Tex.Cr.App.1987); Graham v. State, 566 S.W.2d 941, 953 (Tex.Cr.App.1978); and, Naugle v. State, 118 Tex.Crim. 566, 40 S.W.2d 92, 94 (App.1931). In order to effectuate a defendant’s ability to select a fair and impartial jury the scope of voir dire is broad, McKay, 819 S.W.2d at 482; and, Guerra v. State, 771 S.W.2d 453, 467 (Tex.Cr.App.1988), and a defendant is generally entitled to voir dire prospective jurors on any matter which will be an issue at trial. McCarter, 837 S.W.2d at 121; Nunfio v. State, 808 S.W.2d 482, 484 (Tex.Cr.App.1991); and, Shipley v. State, 790 S.W.2d 604, 608 (Tex.Cr.App.1990). This includes a venire*345man’s understanding of the term “reasonable doubt.” Lane v. State, 828 S.W.2d 764, 766 (Tex.Cr.App.1992); and, Woolridge v. State, 827 S.W.2d 900, 906 (Tex.Cr.App.1992).

We review a trial judge’s decision to limit voir dire for an abuse of discretion, Nunfio, 808 S.W.2d at 484; and, Allridge v. State, 762 S.W.2d 146, 163 (Tex.Cr.App.1988), and a trial judge abuses his discretion when he limits a proper question concerning a proper area of inquiry. Gardner, 730 S.W.2d at 689; and, Powell v. State, 631 S.W.2d 169, 170 (Tex.Cr.App.1982). A trial judge may limit a defendant’s voir dire under specific circumstances: where a question commits a venireman to a specific set of facts, White v. State, 629 S.W.2d 701, 706 (Tex.Cr.App.1981); where the questions are duplicitous or repetitious, Guerra, 771 S.W.2d at 467; where the venireman has already stated his position clearly and unequivocally, Id., at 468 (citing Phillips v. State, 701 S.W.2d 875, 889 (Tex.Cr.App.1985)); and, where the questions are not in proper form, Adams v. State, 577 S.W.2d 717, 724 (Tex.Cr.App.1979).

A venireman is subject to a challenge for cause by the State, or by a defendant if he is unable to follow the law. See, Tex.Code Crim.Proc.Ann. art. 35.16(b)(3) and (c)(2). See also, Little v. State, 758 S.W.2d 551, 555 (Tex.Cr.App.1988) (holding State to higher standard of proof subjects venireman to challenge for cause); Felder v. State, 758 S.W.2d 760, 766 (Tex.Cr.App.1988) (inability to consider parole when deciding punishment); Nichols v. State, 754 S.W.2d 185, 197 (Tex.Cr.App.1988) (inability to assess guilt under law of parties); Smith v. State, 683 S.W.2d 393, 398-399 (Tex.Cr.App.1984) (inability to consider minimum range of punishment); and, Esquivel v. State, 595 S.W.2d 516, 526 (Tex.Cr.App.1980) (requiring State prove motive). We do not believe appellant’s question misled the venireman into believing he was obligated to answer the special issues without pausing to deliberate. Appellant essentially re-phrased his previous question concerning how the venireman would answer the special issues if he had a reasonable doubt as to the evidence. Phrasing the question in the context of the juror’s oath did not preempt the venireman’s prospective reflection upon the evidence presented at trial, Therefore, we hold the question was proper and the trial judge abused his discretion by excluding it.

Although harm is generally presumed when a trial judge improperly limits voir dire, Nunfio, 808 S.W.2d at 485, we find no harm in this case because jury selection concluded prior to reaching venireman Smith. Smith was the 53rd venireman. However, jury selection concluded when the 45th venireman was selected. Thus, the limitation of appellant’s voir dire did not affect his ability to intelligently exercise his peremptory challenges and challenges for cause. See, Ratliff v. State, 690 S.W.2d 597, 600 (Tex.Cr.App.1985) (citing Thomas v. State, 658 S.W.2d 175 (Tex.Cr.App.1983); and, Whitaker v. State, 653 S.W.2d 781 (Tex.Cr.App.1983)). Appellant’s eighth point of error is overruled.

Appellant contends in his ninth point of error that the trial judge erred by restricting the voir dire examination of venireman Kyle regarding his views towards the death penalty. During voir dire, appellant questioned Kyle about the circumstances where death would be an appropriate punishment:

[Appellant]: And ... you realize if you find a person guilty of capital murder, you’ve only got two choices of punishment.

[Venireman]: I understand that.

Q: By your answer on your questionnaire indicates it’s just murder not necessarily even capital murder should always be required to face the death penalty. Is that still your impression?

A: (Pause) I — I’ve thought a lot about that.

Q: Okay.

A: Like I tried to say anything, capital murder, you know, I think in some circumstances the death penalty should be in effect. Now just murder, I’m kind of leaning toward maybe not, you know, capital punishment. But, you know, capital murder, I could lean toward the death penalty. I believe in it rather. Under certain circumstances. Some cir*346cumstances if it’s capital murder, I wouldn’t go with the death penalty.

Q: Okay. What would those circumstances be? You got any ideas?

[The State]: Your Honor, at this time, I’ll object, [Defense Counsel] is trying to bind Mr. Kyle to a verdict.

[The Court]: Sustain the objection.

[Appellant]: So there are those cases of capital murder that you would not think a person should have the death penalty.

A: I believe so.

Q: But are you — your also telling me that there are eases of just murder that you would believe that you might want to give somebody the death penalty?

A: According to the situation, I might.

Q: You realize the law says you can’t do that?

A: Um hum.

Q: Though you know the law says you can’t do that, you would still want to?

A: Not necessarily said I want to, you know, I’m gonna always go by the law. The law is the law. And you know like I said, the circumstances, you know, to me. I just don’t want to give the death penalty to everybody that commit murder, you know, no.

Q: How about everybody that commits capital murder?

A: No.

Q: Don’t want to do that?

A: Not just everybody that come along, okay, capital murder, death penalty, murder, death penalty. No.

Q: You going to give it a lot of thought?

A: Yeah, I really been giving a lot of thought with a lot of questions. This the first time it ever been brought up to me, in many different ways, and I got a lot of opinions on the death penalty, and I thought about it a lot, yes, I have.

Q: What is your opinion on the death penalty.

A: Basically, I believe in the death penalty, but like I say, I wouldn’t just give the death penalty to somebody because they committed a capital murder. It — it’s up to the circumstances of what happened in a murder.

Q: Okay. Anything else.

A: No.

Q: Nothing else. You wouldn’t consider any other kind of evidence?

A: Oh, I’d consider all the evidence. All the evidence that comes in, I’d consider every fact. I’d consider every fact, I just wouldn’t look at maybe the first thing that they was saying, say, well, okay, well, I believe that, yeah. That could be true of capital murder and in the death penalty, you know. I’d consider everything that both sides say, questions and, you know, consider everything before I’d — I’d put somebody’s life on the line. I got to be the most positive man in the world.

Q: And there are those capital murder cases that you think life imprisonment would be an appropriate punishment?

A: Yes.

Q: Is that right?

A: Yes, sir.

Q: Okay. Question number one. And we’re going over these questions again with' [the prosecutor] a moment ago?

A: Yes, sir.

Q: Okay. If you found some guilty of capital murder, would you always answer this first question yes?

A: (Pause) If they was found of capital murder, would I always answer yes?

Q: Yes, sir.

A: Not necessarily.

Q: You can conceive of an idea in your mind where there may be an appropriate time to answer that question no? You can think of circumstances that you might answer that question no?

A: Yes, sir.

Q: Okay. What would the circumstances be? Can you think of one particular—

[The State]: Objection, Your Honor. Again, [appellant] is trying to bind Mr. Kyle to a verdict based on some facts.

[The Court]: Sustain the objection.

[Appellant]: Your Honor, I’m not trying to bind him, I’m just trying to see how is *347thinking and what he might be looking for.

[The Court]: I understand. The ruling is still the same.

The voir dire in the instant case is similar to that in Boyd v. State, 811 S.W.2d 105, 119 (Tex.Cr.App.1991), wherein defense counsel was prevented from asking a prospective venireman to explain “what ... is a case that is proper for the death penalty to be imposed?” We held the trial judge did not abuse his discretion in excluding the question because the question committed the venireman to a particular fact situation. Id., at 120 (citing Allridge, 762 S.W.2d at 162-164; and, Cuevas v. State, 742 S.W.2d 331, 336, n. 6 (Tex.Cr.App.1987)). The question in the instant case is indistinguishable from that in Boyd. Therefore, appellant’s ninth point of error is overruled.

VII.

In his tenth and eleventh points of error appellant contends the trial judge erred in admitting hearsay evidence. The police discovered in Thompson’s office an appointment book containing the name Ricky Dennis, and a patient application form listing the name Ricky Dinkins which were later tendered into evidence over appellant’s objection. Detective Sheffield testified appellant became a suspect in the investigation based upon the appointment book and application form. Appellant argues the appointment book and application form constitute inadmissible hearsay.

Hearsay is a statement, including a written statement, other than one made by the declarant while testifying at the trial, which is offered to prove the truth of the matter asserted. See, Tex.R.Crim.Evid. 801(d); Schaffer v. State, 111 S.W.2d 111, 115 (Tex.Cr.App.1989); Barnard v. State, 130 S.W.2d 703, 723 (Tex.Cr.App.1987); and, McKay v. State, 707 S.W.2d 23, 33 (Tex.Cr.App.1985). An extrajudicial statement or writing which is offered for the purpose of showing what was said rather than for the truth of the matter stated therein does not constitute hearsay. Crane v. State, 786 S.W.2d 338, 351 (Tex.Cr.App.1990); Porter v. State, 623 S.W.2d 374, 385 (Tex.Cr.App.1981); and, Nixon v. State, 587 S.W.2d 709, 711 (Tex.Cr.App.1979). In Gholson v. State, 542 S.W.2d 395, 398 (Tex.Cr.App.1976), we explained “[a]n extra-judicial statement or writing may be admitted as circumstantial evidence from which an inference may be drawn, and not for the truth of the matter stated, therein, without violating the hearsay rule.”

We addressed a similar issue in Jones v. State, 843 S.W.2d 487 (Tex.Cr.App.1992). While testifying at trial, a police officer repeated several out-of-court statements by another witness which implicated the defendant. The officer explained that he began to suspect the defendant and ultimately obtained an arrest warrant based upon those statements. Id., at 499. We held the extrajudicial statements were not inadmissible hearsay because they were admitted not to prove the truth of the matter asserted, but rather to explain how the defendant came to be a suspect. Id.

The instant case is controlled by Jones. The State tendered the appointment book and the application form to show how appellant became a suspect in the investigation. Therefore, we hold the appointment book and the patient application form were not inadmissible hearsay.12 Appellant’s *348tenth and eleventh points of error are overruled.

VIII.

In his twelfth point of error, appellant contends the trial judge erred in admitting appellant’s written confession because the statement was involuntary, resulting from Sheffield’s advice that it could be used “for or against” appellant.

It is well settled that a confession is not admissible if the uncontradicted evidence shows the person who obtained the confession informed the accused that his confession might be used “for or against” him. Sterling v. State, 800 S.W.2d 513, 518-519 (1990); Dunn v. State, 721 S.W.2d 325, 341 (Tex.Cr.App.1986); Walker v. State, 470 S.W.2d 669, 671 (Tex.Cr.App.1971); McCain v. State, 139 Tex.Crim. 539, 141 S.W.2d 613, 614 (1940); and, Guinn v. State, 39 Tex.Crim. 257, 45 S.W. 694 (1898). A confession resulting from a person’s statement that it can be used “for or against” the defendant is inadmissible as a matter of law because it constitutes an improper inducement and because it does not comply with the statutory warnings in art. 38.22. Dunn, 721 S.W.2d at 341. However, where there is a factual discrepancy as to whether such a representation was made, the trial judge is responsible for determining whether the confession is admissible. Long v. State, 823 S.W.2d 259, 277 (Tex.Cr.App.1991); Moore v. State, 700 S.W.2d 193, 202 (Tex.Cr.App.1985); and, Freeman v. State, 618 S.W.2d 52, 53 (Tex.Cr.App.1981). And that decision will not be disturbed absent an abuse of discretion. Long, 823 S.W.2d at 277; Johnson v. State, 803 S.W.2d 272, 287 (Tex.Cr.App.1990); and, Sosa v. State, 769 S.W.2d 909, 915 (Tex.Cr.App.1989).

The record contains evidence that Sheffield informed appellant that his written confession could be used “for or against” him. During the Jackson v. Denno hearing,13 Sheffield made several statements indicating he might have used the phrase- “for or against”:

[Appellant]: You didn’t tell [appellant] [the confession] might help him?

[Sheffield]: No sir.

Q: Did you tell him it could be used for or against him?

A: Yes, sir.

Later, on re-direct examination:

[The State]: Do you specifically remember, Detective, telling [appellant], you telling [appellant] that a statement could be used for him or that a statement could be used for or against him?

A: I don’t recall. I usually say for or against, but I don’t recall exactly, but I probably said for or against.

However, the record also contains evidence which contradicts Sheffield’s testimony. During the hearing Hobbs denied Sheffield informed appellant his confession could be used “for or against” him. Hobbs testified that he, not Sheffield, admonished appellant prior to taking his confession:

[Appellant]: And did you also — you think he understood? His understanding was that if he gave a statement, it could be used for or against him at the time of trial?

A: I told him it could and would be used against him.

Q: Did anybody to .your knowledge tell him that it could be used for or against him?

A: I read the warnings verbatim. I asked if they understood them.

Q: But you don’t know if somebody else told him it could be used for or against him. Isn’t that right?

A: On the date of the confession, I don’t believe Mr. Dinkins was ever out of my presence.

Q: So if somebody else told him that, you just wouldn’t be aware of it. Is that right?

A: Just didn’t happen, not on the 14th.

Q: Unless somebody told him that and you didn’t hear it. Is that correct?

*349A: . Yes, sir, I suppose.

Q: Did Detective Sheffield give him warnings on the 14th?

A: I believe I gave him his warnings.

Q: So if Detective Sheffield said that he warned him and told him that statement could be used for or against him, you just didn’t hear that conversation. Is that correct?

A: There were many times when we were talking together, but I believe I read him the warnings.

Q: So if Detective Sheffield told him that this statement could be used for or against him, you just didn’t hear the conversation. Is that right?

A: Well ... if I read him his warnings and then — Detective Sheffield and I may have asked him if he understood them, do I remember those words verbatim? No, sir, I don’t.

Q: Okay.

A: But could that have been said, I suppose so in an effort to explain his rights.

The trial judge overruled appellant’s motion to suppress the confession and filed findings of fact and conclusions of law in which he specifically found appellant’s confession was not induced by any advice that the confession could be used “for or against” him.

Evidence that a defendant received an improper warning need not be wholly rebutted, but merely contradicted in order that a confession be admissible. Muniz v. State, 851 S.W.2d 238, 252 (Tex.Cr.App.1993); Moore, 700 S.W.2d at 202; and, Barton v. State, 605 S.W.2d 605, 607 (Tex.Cr.App.1980) (defendant’s claim his confession resulted from beating was contradicted by testimony police used force to break up jail altercation between defendant and another.). In Sterling, and Dunn, we held the confessions were inadmissible because the interrogating officers testified, without contradiction, that the defendants were advised their confessions could be used “for or against” them. Sterling, 800 S.W.2d at 518-519; and, Dunn, 721 S.W.2d at 340-342.

By contrast, in Freeman, 618 S.W.2d 52, and Coursey v. State, 457 S.W.2d 565 (Tex.Cr.App.1970), we held the confessions admissible because the testimony was contradicted. In Freeman, the interrogating officer testified he informed the defendant his statement could be used “for or against” him. Id., 618 S.W.2d at 53. However, he later denied he had used the phrase “for or against” when warning the defendant and attributed his prior testimony to his misunderstanding of defense counsel’s questions. He further testified he warned the defendant from the standard warning form, which tracked the language of art. 38.22. Id. In holding the confession was admissible, we explained the trial judge has the discretion to resolve factual discrepancies in the testimony. Id.

In Coursey, the defendant contended the County Attorney advised him that his confession could be used either for or against him. A police officer present at the interrogation testified at trial that the County Attorney advised the defendant that his confession could be used for or against him. Id., 457 S.W.2d at 567. However, the officer subsequently testified the warnings were read off the standard warning form, which conformed to the statutory warnings in effect at the time. Id. Further, the County Attorney denied advising the defendant his statement could be used for or against him. Id., at 568. We held the County Attorney’s and the officer’s testimony sufficiently controverted the defendant’s claims and, therefore, the confession was admissible. Id.

Although Sheffield’s'testimony permits the conclusion that he informed appellant his confession could be used “for or against” him, his testimony was contradicted. Sterling and Dunn are not controlling because Sheffield’s testimony is not an unqualified admission he said “for or against.” More significantly, Sheffield’s testimony is contradicted by Hobbs, who testified that he, not Sheffield, warned appellant the day his confession was taken. To believe the testimony of one is to disbelieve the testimony of the other. Accordingly, it was within the trial judge’s discretion to resolve this factual discrepancy, Freeman, 618 S.W.2d at 53, and, in light of the record, we cannot conclude *350that he abused his discretion. Appellant’s twelfth point of error is overruled.

IX.

In his thirteenth and fourteenth points of error, appellant argues his confession and other evidence were admitted in violation of his right to counsel under the Fifth Amendment of the United States Constitution.14 Appellant contends he invoked his right to counsel prior to giving his confession and, therefore, the confession and all the evidence obtained because of it were inadmissible.

Sheffield and Hobbs first contacted appellant at his place of work on September 13th, the day after the offense. After advising appellant of his Miranda rights,15 the detectives questioned him and sought permission to search his car. Appellant spoke with the detectives but refused to consent to a search. At some point in the conversation appellant stated “maybe I should talk to someone,” at which time the detectives ceased their questions and arrested appellant on an outstanding misdemeanor arrest warrant. Later that day, appellant telephoned his grandmother and asked to speak to the police detective, Detective Clifton Orr, who was there investigating appellant’s alibi for the previous night. Appellant denied he committed the murders but stated he would allow the police to search his car. Orr then telephoned Sheffield and informed him appellant would sign a written consent to search the car. A search of the car recovered a .357 revolver, two boxes of ammunition and items of clothing.

Appellant was again interrogated by Hobbs and Sheffield the next morning, September 14. After reading appellant his Miranda rights, the detectives sought appellant’s written consent to search various locations, including his home and his locker at work. At some point during the interrogation appellant asked Sheffield “what a lawyer would tell him to do?” Sheffield informed him “in no uncertain terms that a lawyer would tell him to keep his mouth shut and not to talk to the police at all.” Appellant signed a written consent to search form and accompanied Hobbs and Sheffield as they conducted the searches. The record does not support a showing appellant requested an attorney while accompanying the detectives during their searches. Moreover, the record is clear that appellant met with both his brother and his grandmother during the day but did not request either of them to retain an attorney. Upon returning to the District Attorney’s office, the detectives again interrogated appellant. During the interrogation, appellant asked to speak to his mother in Atlanta, Georgia. According to Hobbs, who was waiting in the doorway during the conversation, appellant did not ask his mother to retain counsel for him. After the conversation, the detectives informed appellant capital murder charges would be filed against him. Appellant then agreed to dictate a statement. Hobbs read appellant his Miranda warnings and had appellant read back the warnings and sign them. Appellant then dictated his statement. After being formally charged with capital murder and returned to the county jail, appellant requested to talk to a local attorney whose name was given to him by his mother. Although Hobbs did not know the attorney whom appellant requested, he looked up the telephone number of an attorney having a similar name and arranged to have appellant use the telephone.

Under the Fifth Amendment to the United States Constitution, in order to effectuate the right against self-incrimination, once a suspect has invoked his right to counsel, all interrogation by the police must cease until counsel is provided or until the suspect himself re-initiates conversation. Minnick v. Mississippi, 498 U.S. 146, 153, 111 S.Ct. 486, 491, 112 L.Ed.2d 489 (1990); Edwards v. Arizona, 451 U.S. 477, 484-485, 101 S.Ct. 1880, 1884-1885, 68 L.Ed.2d 378 *351(1980); Miranda v. Arizona, 384 U.S. 436, 474, 86 S.Ct. 1602, 1628, 16 L.Ed.2d 694 (1966); Hicks v. State, 860 S.W.2d 419, 429-430 (Tex.Cr.App.1933); and, Upton v. State, 853 S.W.2d 548, 552 (Tex.Cr.App.1993). “The right to counsel is considered invoked where a person indicates he or she desires to speak to an attorney or have an attorney present during questioning.” Lucas v. State, 791 S.W.2d 35, 45 (Tex.Cr.App.1989). An invocation must be clear and unambiguous; the mere mention of the word “attorney” or “lawyer” without more, does not automatically invoke the right to counsel. Robinson v. State, 851 S.W.2d 216, 223 (Tex.Cr.App.1991); Collins v. State, 727 S.W.2d 565, 568 (Tex.Cr.App.1987) and, Russell v. State, 727 S.W.2d 573, 575 (Tex.Cr.App.1987). When reviewing alleged invocations of the right to counsel, we typically look at the totality of the circumstances surrounding the interrogation, as well as the alleged invocation, in order to determine whether a suspect’s statement can be construed as an actual invocation of his right to counsel. Lucas, 791 S.W.2d at 45-46, and, Russell, 727 S.W.2d at 576. Because appellant made no explicit requests for an attorney, we must review the record to determine whether any of appellant’s statements can be clearly understood to be an invocation of his right to counsel. Foremost is appellant’s statement on September 13 while being questioned by Detectives Sheffield and Hobbs, “Maybe I should talk to someone.”

The United States Supreme Court addressed the issue of ambiguous invocations of the right to counsel in Davis v. United States, — U.S. -, -, 114 S.Ct. 2350, 2355, 129 L.Ed.2d 362 (1994). Davis, a member of the United States Navy, was questioned by naval police following the beating death of the deceased, who owed Davis money. After being advised of his Miranda rights, Davis waived his right to remain silent and his right to counsel, orally and in writing. Id., — U.S. at -, 114 S.Ct. at 2353. About an hour and a half into the interrogation, Davis stated “Maybe I should talk to a lawyer” at which point the interrogators stopped and attempted to clarify whether Davis was actually invoking his right to an attorney. Davis, however, denied he wanted an attorney and the interrogation continued for another hour until Davis stated “I think I want a lawyer before I say anything else.” At this point, the interrogation ceased. Id. At his court-martial, Davis was convicted of murder after unsuccessfully attempting to suppress his statement. The United States Court of Military Appeals affirmed and the Supreme Court granted cer-tiorari to determine whether Davis’s initial statement constituted an actual invocation of his right to counsel. Id., — U.S. at -, 114 S.Ct. at 2354.

The Court explained that unlike the right to counsel under the Sixth Amendment which attaches automatically, the right to counsel under Miranda is a prophylactic measure and is not inherent within the Fifth Amendment. Davis, — U.S. at -, 114 S.Ct. at 2354-2355. The prohibition against continued questioning following an invocation of the right to counsel is “justified only by reference to its prophylactic purpose,” Id., — U.S. at -, 114 S.Ct. at 2355 (quoting Connecticut v. Barrett, 479 U.S. 523, 528, 107 S.Ct. 828, 832, 93 L.Ed.2d 920 (1987)), that is to say, to protect a suspect who has already invoked his right to silence from being badgered into self-incrimination by continued questioning by the police. Accordingly, a court’s focus is on whether a suspect actually invokes his right, Id., — U.S. at -, 114 S.Ct. at 2355 (citing Smith v. Illinois, 469 U.S. 91, 95, 105 S.Ct. 490, 492, 83 L.Ed.2d 488 (1984)), and the inquiry is purely an objective one:

... Invocation of the Miranda right to counsel “requires, at a minimum, some statement that can reasonably be construed to be an expression of a desire for the assistance of an attorney.” ... But if a suspect makes a reference to an attorney that is ambiguous or equivocal in that a reasonable officer in light of the circumstances would have understood only that the suspect might be invoking the right to counsel, our precedents do not require the cessation of questioning....

Rather, the suspect must unambiguously request counsel. As we have observed, “a statement either is such an assertion or it is not.” ... Although a suspect need not *352“speak with the discrimination of an Oxford don” ... he must articulate his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney. If the statement fails to meet the requisite level of clarity, Edwards [v. Arizona, supra] does not require that the officers stop questioning the suspect.

Davis, — U.S. at -, 114 S.Ct. at 2355 (citations omitted) (emphasis in original).

Turning its attention to the facts of the case, the Court held Davis’ statement, “Maybe I should talk to a lawyer” was too equivocal to constitute an invocation of the right to counsel. Id., - U.S. at -, 114 S.Ct. at 2357. Therefore, the police were not required to cease their questioning. Cf., Jones v. State, 742 S.W.2d 398, 405 (Tex.Cr.App.1987) (Defendant’s statement “I think I want a lawyer” was a clear and unequivocal assertion of her right to counsel.).

Appellant’s statement in the instant case is more ambiguous than the statement in Davis. In response to questioning by Sheffield and Hobbs, appellant merely stated, “Maybe I should talk to someone" but failed to specify to whom he wished to speak. Davis makes it clear that police are not required to ask clarifying questions when a suspect makes an equivocal invocation of counsel. Id., — U.S. at -, 114 S.Ct. at 2356. We additionally note the detectives ceased questioning appellant and only resumed questioning him after appellant re-initiated contact with Detective Orr later that day. We therefore hold appellant’s statement was not a clear and unequivocal invocation of the right to counsel. While there “are no magical words required to invoke an accused’s right to counsel,” Russell, 727 S.W.2d at 576, we believe that Davis, requires, at a minimum, that a suspect express a definite desire to speak to someone, and that person be an attorney. See, Id., — U.S, at -, 114 S.Ct. at 2355.

We find no further indication in the record that appellant clearly invoked his right to an attorney prior to giving his confession. Appellant’s question to Detective Sheffield concerning what an attorney would tell him to do under the circumstances does not rise to an invocation of the right to counsel. See, Russell, 727 S.W.2d at 576 (Defendant’s question to officers “whether they thought the presence of an attorney was necessary” did not invoke right to counsel). Instead, the only time appellant clearly requested to speak with counsel was after he had given his confession, been formally charged of the offense by a magistrate, and returned to jail. Appellant’s reliance on Green v. State, 667 S.W.2d 528 (Tex.Cr.App.1984), and, Porier v. State, 662 S.W.2d 602 (Tex.Cr.App.1984), is misplaced because those cases are factually distinguishable. Consequently, we hold appellant did not invoke his right to counsel prior to giving his confession. Appellant’s thirteenth and fourteenth points of error are overruled.

X.

In his fifteenth point of error, appellant contends the trial judge erred in refusing to instruct the jury on a factual issue raised at trial. Appellant timely requested instructions which instructed the jury to disregard appellant’s confession if they determined Sheffield advised appellant his confession could be used in his favor, or if they determined appellant requested counsel prior to making his confession. The trial judge denied appellant’s request and submitted the following general instructions to the jury:

You are instructed that if you believe from the evidence, or it you have a reasonable doubt thereof, that the alleged statements of the defendant were not voluntarily made, you will not consider the statements or any evidence obtained as a result of the statements for any purpose whatsoever.

You are instructed that unless you believe from the evidence beyond a reasonable doubt that State’s Exhibit #42 [appellant’s confession] introduced into evidence was freely and voluntarily made without compulsion or persuasion, or if you have a reasonable doubt thereof, you shall not consider State’s Exhibit #42 for any purpose nor any evidence obtained as a result thereof.

*353Now, if you find from the evidence or if you have a reasonable doubt thereof, that Officer Sheffield told defendant before he signed State’s Exhibit # 42, if any, that it could be used for him, and that such statement by Officer Sheffield was an inducement to defendant such as to render State’s Exhibit # 42 not wholly voluntary, then such statement shall not be freely and voluntarily made, and in such case you are wholly to disregard State’s Exhibit #42 and not consider it for any purpose nor any evidence obtained as a result of State’s Exhibit # 42.

The trial judge’s instructions to the jury did not address whether appellant had invoked his right to counsel prior to making his confession. Appellant maintains the submitted jury instruction, failed to apply the law to the specific facts of the case.

When the evidence presented at trial raises a factual dispute over whether a defendant’s written statement was voluntary, he is entitled to an instruction in the jury charge advising the jury generally on the law pertaining to such statement. Muniz v. State, 851 S.W.2d 238, 254 (Tex.Cr.App.1993); Miniel v. State, 831 S.W.2d 310, 316 (Tex.Cr.App.1992); Hernandez v. State, 819 S.W.2d 806, 812 (Tex.Cr.App.1991); Thomas v. State, 723 S.W.2d 696 (Tex.Cr.App.1986); and, art. 38.22, § 7. The issue of voluntariness arises when any evidence suggests the statement was not given in conformity with art. 38.22, § 2. Hernandez, 819 S.W.2d at 812 (citing Brooks v. State, 567 S.W.2d 2, 3 (Tex.Cr.App.1978)).

The State claims that no factual issue of voluntariness was raised before the jury. We disagree. Detective Sheffield made several equivocal statements at trial which suggest he could have informed appellant his confession could be used for or against him. This testimony was contradicted by Detective Hobbs. Because this testimony raises a factual dispute, and since resolution of this factual dispute has repercussions upon the voluntariness of the statement, see, Sterling, 800 S.W.2d at 518-519, appellant was clearly entitled to a jury instruction on voluntariness. Muniz, 851 S.W.2d at 254. The question remains whether appellant was entitled to the instruction he requested.

In those cases where we have reviewed the sufficiency of the jury instructions, we have consistently held that when the issue of voluntariness is raised, a defendant is only entitled to general instruction on voluntariness. See, White v. State, 779 S.W.2d 809, 827 (Tex.Cr.App.1989). See also, Burdine v. State, 719 S.W.2d 309, 319-320 (Tex.Cr.App.1986); Hawkins v. State, 660 S.W.2d 65, 77 (Tex.Cr.App.1983) (plurality op.); and, Moon v. State, 607 S.W.2d 569 (Tex.Cr.App.1980) (panel op.). In Moon, for example, the defendant contended the jury charge was fundamentally defective for failing to include the issue of whether the police threatened him into making a confession. We nonetheless upheld the instruction as given, stating: “The trial court charged the jury, in essence, that they could consider the confession only if ‘it appears that the same was freely made without compulsion or persuasion.’ This charge was adequate to protect appellant’s rights.” Id., at 570. See also, Hawkins v. State, 660 S.W.2d at 77.

Notably, in Burdine, we upheld an instruction similar to the one presently before us. The defendant contended the instruction on voluntariness was defective because it did not address whether his statement was induced by a promise. Id., 719 S.W.2d at 320. The trial judge instructed the jury:

You are instructed that under our law a confession of a defendant made while the defendant was in jail or in custody of an officer and while under interrogation shall be admissible in evidence if it appears that the same was freely and voluntarily made without compulsion or persuasion....

Id.

We also observed

... the jury was [additionally] instructed that they could not consider the appellant’s confession for any purpose, unless they found that the appellant had been warned of his rights and voluntarily waived his rights prior to making a statement.

Id. Noting that the defendant failed to show how the instructions were erroneous, we held *354the jury was properly charged on the issue of voluntariness. Id.

The jury instructions in the instant case are similar to those in Burdine. The jury was instructed that if they believed Sheffield advised appellant his confession could be used for him, it would constitute an improper inducement and the confession would not be voluntary. We hold that this is a sufficient instruction under art. 38.22, § 7 and art. 38.23. See, Burdine, 719 S.W.2d at 320.

We now turn to appellant’s contention that the trial judge erred in failing to include an instruction regarding appellant’s invocation of the right to counsel.16 A defendant is entitled to a jury instruction only where there is a factual dispute before the jury. Thomas, 723 S.W.2d at 707. However, whether a defendant’s statements to the police constitute an invocation of the right to counsel is a matter of law which must be determined by the trial judge. See, Davis, supra. We have already determined that appellant’s statement, “[m]aybe I should talk to someone,” did not invoke his right to counsel because, as a matter of law, it was too ambiguous. We have further determined that appellant’s question to Detective Sheffield concerning what an attorney would advise him similarly failed to invoke appellant’s right to counsel. Detectives Sheffield and Hobbs testified at trial that appellant did not request counsel prior to making his confession and appellant has failed to point to any part of the record which contradicts that testimony. Consequently, because there was no factual dispute before the jury over whether appellant invoked his right to counsel prior to making his confession, he was not entitled to a jury instruction on that issue. See, Hernandez, 819 S.W.2d at 812 (“If evidence offered before the jury does not raise the issue of voluntariness of the confession, appellant is not entitled to a jury charge on the matter.”). Appellant’s fifteenth point of error is overruled.

XI.

In his sixteenth and seventeenth points of error, appellant complains that on two separate instances, a police officer was allowed to offer impermissible speculation while testifying. During examination of Sgt. Tatum at punishment phase, the following testimony ensued:

[The State]: And in your opinion, Mrs. Thompson’s head could have been no higher than 31 inches above the floor?

[Witness]: Yes, Sir.

Q: Now when you first saw State’s Exhibit 45, the door over here, was there a bullet in the doorknob?

A: Yes, sir.

Q: And is it your — is your opinion that was fired after Katherine Thompson was shot twice?

A: Yes, sir.

Q: Did you draw a conclusion as to why that shot was fired?

A: I think he was trying to get the door open to get to Ms. Cutler.

Q: Okay. Now when you arrived at the “ scene—

[Appellant]: I’ll object to that testimony, it’s pure speculation.

[The Court]: Overruled.

A short while later, the following ensued:

[The State]: Based on your information from the scene there, were you able to determine, in your opinion, first of all, where Shelly Cutler was when she was shot?

[The Witness]: She was about in the position where you have the X and it appeared she was on her knees down on the floor.

Q: Okay. Would you characterize it as crouching down?

A: Yes, sir.

Q: And would you believe that she had her head down?

A: Yes, sir.

Q: Now with Shelly Cutler in this position, would it have been possible for someone to reach through that broken *355window and fire a gun directly into the top of her head?

A: Yes, sir.

Q: Is that what you believe occurred?

A: Exactly.

[Appellant]: I’ll object to that also, Your Honor, as speculation on the part of Officer Tatum.

[The Court]: Overruled.

A defendant must make a timely objection in.order to preserve an error in the admission of evidence. Johnson v. State, 878 S.W.2d 164, 167 (Tex.Cr.App.1994); Ethington v. State, 819 S.W.2d 854, 858 (Tex.Cr.App.1991); Sattiewhite v. State, 786 S.W.2d 271, 283 (Tex.Cr.App.1989); and, Tex.R.App.P. 52(a). An objection should be made as soon as the ground for objection becomes apparent. Johnson v. State, 803 S.W.2d 272, 291 (Tex.Cr.App.1991); and, Thompson v. State, 691 S.W.2d 627, 635 (Tex.Cr.App.1984). In general, this occurs when the evidence is admitted. Wilson v. State, 511 S.W.2d 531, 532 (Tex.Cr.App.1974). But see, Johnson, supra. Therefore, if a question clearly calls for an objectionable response, a defendant should make an objection before the witness responds. Webb v. State, 480 S.W.2d 398, 400 (Tex.Cr.App.1972). If he fails to object until after an objectionable question has been asked and answered, and he can show no legitimate reason to justify the delay, his objection is untimely and error is waived. See, Girndt v. State, 623 S.W.2d 930, 934 (Tex.Cr.App.1981); Guzman v. State, 521 S.W.2d 267, 269 (Tex.Cr.App.1975) (Error was waived because defendant failed to object until three objectionable questions were asked and answered.); Sikes v. State, 500 S.W.2d 650, 651 (Tex.Cr.App.1973) (Where defendant failed to object to Judge’s question constituting a comment on the evidence until after question was asked and answered, error was waived.); Webb, 480 S.W.2d at 400; and, Crestfield v. State, 471 S.W.2d 50, 54 (Tex.Cr.App.1971) (Where witness had already completed answer before defendant objected the witness was testifying outside area of expertise, error was waived.).

In the instant case, the State’s questions clearly called for a speculative answer. The ground for objection was apparent when the question was asked. However, appellant offered no explanation for failing to object before the witness answered. We hold, therefore, that appellant’s failure to make a timely objection waived error for review. Appellant’s sixteenth and seventeenth points of error are overruled.

XII.

In points of error number eighteen and nineteen, appellant contends a State’s witness impermissibly commented on appellant’s post-arrest silence. The State examined Hobbs during the punishment phase of the trial regarding appellant’s demeanor while accompanying the detectives. At one point, the prosecutor asked whether appellant had shown remorse for his crime while in police custody and Hobbs answered he had not. Appellant objected that Hobbs’ testimony constituted a comment on appellant’s right to remain silent. The trial judge sustained appellant’s objection and instructed the jury to disregard it.

Moments later, Hobbs made the following comments during cross-examination:

[Appellant]: And from your testimony I gather that he appeared to be in somewhat a different state of mind than what you would expect from somebody who was under investigation for capital murder?

[Hobbs]: Certainly the way he displayed his emotions was different than any I had experienced.

Q: Okay. And it’s your testimony that he never asked you a single question?

A: No. That’s not — he never — he would pose questions, for example like the one we previously talked about regarding whether or not the giving of a statement would affect the level of charges, what an attorney would tell him, but as far as the questioning, regarding — when we were questioning him about his whereabouts, his comings and goings the evening of the offense, such as that, its been my experience that most times when you’re questioning someone, they will *356protest their innocence, they will, you know, suggest things that would clear their — clear themselves. He did very little of that.

[Appellant]: I’ll object to that as being non-responsive, Your Honor.

[The Court]: Overruled.

[Appellant]: And I would also object on the basis that it’s a comment on the defendant’s election not to testify.

[The Court]: Overruled.

A comment on a defendant’s post-arrest silence violates the Fifth Amendment prohibition against self-incrimination. Doyle v. Ohio, 426 U.S. 610, 617-618, 96 S.Ct. 2240, 2244-2245, 49 L.Ed.2d 91 (1976); and, Miranda v. Arizona, 384 U.S. 436, 468, n. 37, 86 S.Ct. 1602, 1625, n. 37, 16 L.Ed.2d 694 (1966). See also, Sanchez v. State, 707 S.W.2d 575, 579-580 (Tex.Cr.App.1986); Sutherlin v. State, 682 S.W.2d 546, 548 (Tex.Cr.App.1984); and, Cuellar v. State, 613 S.W.2d 494, 495 (Tex.Cr.App.1981). A comment on a defendant’s post-arrest silence is akin to a comment on his failure to testify at trial because it attempts to raise an inference of guilt arising from the invocation of a constitutional right. Moreover, the prohibition against commenting on post-arrest silence includes testimony regarding a defendant’s contrition or remorse because such testimony can only come from the defendant. Swallow v. State, 829 S.W.2d 223, 225 (Tex.Cr.App.1992) (citing Thomas v. State, 638 S.W.2d 481, 484 and n. 8 (Tex.Cr.App.1982)).

With regard to Hobbs’ testimony regarding appellant’s apparent lack of remorse, we agree with appellant that this testimony constituted a comment on appellant’s post-arrest silence, and was therefore inadmissible. However, this does not lead to an automatic reversal. As we explained in Waldo v. State, 746 S.W.2d 750 (Tex.Cr.App.1988):

... the ... presumption that an instruction [to disregard] generally will not cure comment on failure of the accused to testify ... has been eroded to the point that it applies only to the most blatant examples. Otherwise, the Court has tended to find the instruction to have force.... Even where we have found such comment beyond cure, the Court has nevertheless held it can constitute harmless error in context of the particular case.

Id., at 753. See also, Jones v. State, 693 S.W.2d 406, 408-409 (Tex.Cr.App.1985). In the instant case, the trial judge sustained appellant’s objection and instructed the jury to disregard Hobbs’ testimony. Therefore, we find the error was cured. Appellant’s eighteenth point of error is overruled.

Hobbs’ testimony regarding appellant’s failure to protest his innocence was also an impermissible comment on appellant’s post-arrest silence. However, because the trial judge overruled appellant’s objection and failed to instruct the jury to disregard the statement, the error was not cured. Therefore, we must conduct a harm analysis to determine whether Hobbs’ testimony contributed to appellant’s punishment. Tex. R.App.P. 81(b)(2).

When reviewing the record for harm, we examine a number of factors: the source and nature of the error, the extent to which it was emphasized by the State, the weight a juror would probably place upon the error, and whether finding the error harmless would encourage the State to repeat it with impunity. Harris v. State, 790 S.W.2d 568, 587 (Tex.Cr.App.1989).

We initially note the comment was not elicited by the State, but was in response to a question by appellant. We additionally note the State made no attempt during closing argument to emphasize appellant’s failure to protest his innocence. Therefore, bad faith by the State is not a consideration here. Further, we do not believe the testimony influenced the jury’s deliberation. In contrast to testimony regarding appellant’s apparent lack of remorse, Hobbs’ testimony regarding appellant’s failure to protest his innocence alluded to his culpability for the offense, rather than his contrition for it. The testimony did not augment the evidence at punishment relevant to the issues to be determined by the jury at punishment: deliberation, future dangerousness, and provocation. Thus, it is unlikely the jury would have placed any weight in the testimony. Finally, *357finding the error harmless will not encourage repetition by the State because appellant elicited the testimony. Therefore, we conclude beyond a reasonable doubt that the comment did not contribute towards appellant’s punishment. Point of error nineteen is overruled.

XIII.

Appellant contends in his twentieth point of error that error occurred during closing argument when the prosecutor made comments which amounted to striking at appellant over the shoulders of defense counsel. The prosecutor made the following comment during the State’s closing argument in the guilt/innocence phase:

[The State]: The case starts coming together, and we know without State’s Exhibit 42—Folks this is as voluntary as it can be. There’s not any question about that. Now, [Defense Counsel] wants to mislead you a little bit by saying if you find—

The trial judge sustained appellant’s objection and instructed the jury to disregard the statement, but denied appellant’s motion for a mistrial. Appellant now contends the comment constituted reversible error.

Permissible jury argument is limited to four areas: 1) summation of the evidence; 2) reasonable deductions from the evidence; 3) responses to opposing counsel’s argument; and, 4) pleas for law enforcement. Coble v. State, 871 S.W.2d 192, 204 (Tex.Cr.App.1993); Felder v. State, 848 S.W.2d 85, 94-95 (Tex.Cr.App.1992); and, Todd v. State, 598 S.W.2d 286, 296-297 (Tex.Cr.App.1980). Generally, when an argument falls outside of these areas, error occurs. However, an instruction to disregard the argument generally cures the error. McGee v. State, 774 S.W.2d 229, 238 (Tex.Cr.App.1989); and, Anderson v. State, 633 S.W.2d 851, 855 (Tex.Cr.App.1982).

We have consistently held that argument which strikes at a defendant over the shoulders of defense counsel is improper, Coble, 871 S.W.2d at 205; and, Fuentes v. State, 664 S.W.2d 333, 335 (Tex.Cr.App.1984), and, prior to the enactment of Rule 81(b)(2), such comments amounted to automatic reversible error, despite an instruction to disregard. Gomez v. State, 704 S.W.2d 770 (Tex.Cr.App.1985); Bell v. State, 614 S.W.2d 122 (Tex.Cr.App.1981); and, Lopez v. State, 500 S.W.2d 844 (1973). However, in Orona v. State, 791 S.W.2d 125, 128 (Tex.Cr.App.1990), we held such improper comments will be analyzed under the framework of Rule 81(b)(2). Id., 791 S.W.2d at 129-130.

We disagree with the State that the prosecutor’s comment was permissible as rebuttal to defense counsel’s prior argument concerning the voluntariness of appellant’s confession. Although the prosecutor’s statements may have been intended as a rebuttal, they also cast aspersion on defense counsel’s veracity with the jury. Compare, Lopez, 500 S.W.2d at 846 (reversible error occurred at comment that defense counsel and defendants were liars when pled not guilty). But see, Gorman v. State, 480 S.W.2d 188, 190 (Tex.Cr.App.1972) (comment “don’t let [defense counsel] smoke-screen you” was permissible rebuttal). Nonetheless, the prosecutor’s comment was not as egregious as those in Gomez, supra, (reversible error resulted from comment that defense counsel was paid to “manufacture evidence” and “get this defendant off the hook”); and, Bray v. State, 478 S.W.2d 89, 89-90 (Tex.Cr.App.1972) (reversible error resulted from comment that prosecutor was grateful for not having to represent someone like defendant). Moreover, the trial judge sustained appellant’s objection and instructed the jury to disregard the statement. Finally the State made no further comments impugning defense counsel’s veracity. We therefore hold the error was harmless. Appellant’s twentieth point of error is overruled.

XIV.

In his twenty-first point of error, appellant challenges the sufficiency of the evidence to support an affirmative answer to the second punishment issue. When conducting a review of the sufficiency of the evidence, we view the evidence in the light most favorable to the verdict in order to determine whether any rational trier of fact could have affirmatively answered the pun*358ishment issue beyond a reasonable doubt. Barnes v. State, 876 S.W.2d 316, 322 (Tex.Cr.App.1994); and, Valdez v. State, 776 S.W.2d 162, 166 (Tex.Cr.App.1989). In Keeton v. State, 724 S.W.2d 58, 61 (Tex.Cr.App.1987), we listed several factors which we consider when evaluating the sufficiency of the evidence to support an affirmative answer to the second punishment issue. These factors include:

(1) the circumstances of the capital offense, including the defendant’s state of mind and whether he was working alone or in concert with other parties;

(2) the calculated nature of the defendant’s actions;

(3) the forethought and deliberateness exhibited by the crime’s execution;

(4) the existence of a prior criminal record and the severity of the prior offenses;

(5) the defendant’s age and personal circumstances at the time of the commission of the offense;

(6) whether the defendant was acting under duress or intoxication or under the domination of another at the time of the commission of the offense;

(7) the lack of psychiatric evidence concerning future dangerousness; and,

(8) any relevant character evidence.

Id. See also, Wilkerson v. State, 881 S.W.2d 321, 335-336 (Tex.Cr.App.1994) (Baird, J., dissenting); Rousseau v. State, 855 S.W.2d 666, 684-685 and n. 25 (Tex.Cr.App.1993); Bogges v. State, 855 S.W.2d 656, 661-663 (Tex.Cr.App.1989); Johnson v. State, 853 S.W.2d 527, 532 (Tex.Cr.App.1992); and, Valdez v. State, 776 S.W.2d 162, 166-167 (Tex.Cr.App.1989). No one factor is disposi-tive, and the jury’s affirmative answer to the second punishment issue may withstand a sufficiency challenge notwithstanding the lack of evidence relating to one or more of these factors. Vuong v. State, 830 S.W.2d 929, 935 (Tex.Cr.App.1992).

In order to determine whether the evidence is sufficient to support an affirmative answer to the second punishment issue, we should examine those eases in which we have found the evidence is insufficient. Keeton, 724 S.W.2d at 61; and, Wilkerson, 881 S.W.2d at 336 (Baird, J., dissenting). However, we pause to note that each case must be resolved on its own facts. Vuong, 830 S.W.2d at 935 (citing Santana v. State, 714 S.W.2d 1, 8 (Tex.Cr.App.1986)). We will therefore review the facts of the instant case in light of the aforementioned factors and the relevant decisional authority.

1. Circumstances of the Offense

Tex.Penal Code Ann. § 19.03 “limits the circumstances under which the State may seek the death penalty to a small group of narrowly defined and particularly brutal offenses.” Smith v. State, 779 S.W.2d 417, 420 (Tex.Cr.App.1989) (quoting Jurek v. State, 522 S.W.2d 934, 939 (Tex.Cr.App.1975) (emphasis added)). While the commission of a capital offense is undeniably brutal the mere fact that such an offense is committed is insufficient in itself to prove future dangerousness. See, Green v. State, 682 S.W.2d 271, 289 (Tex.Cr.App.1984), cert. den., 470 U.S. 1034, 105 S.Ct. 1407, 84 L.Ed.2d 794 (1985); and, McMahon v. State, 582 S.W.2d 786, 792 (Tex.Cr.App.1978). Although the circumstances of the offense alone may be sufficient to sustain the jury’s affirmative answer to the second punishment issue, Allridge v. State, 850 S.W.2d 471, 488 (Tex.Cr.App.1991); and, Black v. State, 816 S.W.2d 350, 355 (Tex.Cr.App.1991), we have typically required those circumstances to be so heinous as to display a “wanton and callous disregard for human life.” Deeb v. State, 815 S.W.2d 692, 703 (Tex.Cr.App.1991); and, O’Bryan v. State, 591 S.W.2d 464, 481 (Tex.Cr.App.1979). For example, in Joiner v. State, 825 S.W.2d 701, 704 (Tex.Cr.App.1992), we found the evidence sufficient to support an affirmative answer to the second punishment issue where the defendant murdered two women. A medical examiner testified that “[t]he first complainant, was found to have been stabbed four times in the chest and ... received a series of lacerations on her neck. The second complainant suffered forty-one stab wounds to her chest, blunt force trauma to her head, lacerations to the head, and her throat had been ... ‘slashed.’ ” Physical evidence further suggested that each complainant was sexually assaulted by appellant after their deaths. Id., at 704. In *359finding the evidence sufficient to support the sentence, we stated:

The evidence presented in this case demonstrates a complete disregard for the sanctity for human life. Appellant not only took the lives of the two complainants herein but disfigured and brutalized their bodies. Appellant’s actions appear cold, deliberate and calculated.

Id., at 704.

Similarly, in Vuong, 830 S.W.2d at 935, we found the circumstances of the offense alone were sufficient to support the jury’s affirmative answer where the defendant systematically shot the patrons in a game room with a semi-automatic rifle, killing two and injuring seven.

By contrast, in Smith, 779 S.W.2d 417, the defendant committed murder in the course of a sexual assault. After gaining entry to the deceased’s apartment, the defendant tied the deceased to the headboard of her bed and sexually assaulted her. Id., at 419. He then untied her and stabbed her fourteen times in the chest and back, including once through the heart. In a written confession, the defendant explained: “After I raped her, I decided to kill her añd kind of went crazy for a few minutes.” Id. At trial, a State forensic pathologist testified the heart wound would have killed the deceased soon after its infliction. He further explained the offense was “a very typical sex murder” and while it was “a brutal death,” it was not “extremely” brutal. Id. We held:

... We cannot conclude the circumstances of the offense are so heinous or evince an “aberration of character” so peculiarly “dangerous” as alone to justify an affirmative response to the second special issue .... To hold the offense itself in this cause was sufficient to prove future dangerousness would threaten to undermine the function of Article 37.071, supra, to further narrow the class of death-eligible offenders to less than all those who have been found guilty of an offense as defined under [Penal Code] § 19.03-

Smith, 779 S.W.2d at 419-420.

Similarly, in Brasfield v. State, 600 S.W.2d 288 (Tex.Cr.App.1980), the defendant kidnapped and murdered a six-year-old boy. A pathologist testified the deceased died of asphyxiation. Additionally, the deceased received a heavy blow to the head, leaving a bruise, as well as numerous stab wounds, inflicted after death. Id., at 292. The deceased’s trousers were pulled down around his legs, but his body was in too advanced a stage of decomposition to determine whether he had been sexually molested. The State offered no evidence at punishment that the defendant would constitute a continuing threat to society. And the defendant presented no mitigating evidence. Reviewing the evidence, we held that although “... we have a crime of violence adequately supported by the circumstantial evidence ... we are led to the inescapable conclusion that the evidence was insufficient to support an affirmative answer to the second issue.” Id., at 293-294.

In Keeton, 724 S.W.2d 58, the defendant entered a grocery store and, without warning, shot a clerk and fired at the store owner. He then went behind the counter and stole the complainants’ purses. In Roney v. State, 632 S.W.2d 598 (Tex.Cr.App.1982), during a grocery store robbery, the defendant, without provocation, shot a store clerk after receiving the money. Another clerk testified at trial that the deceased had his hands raised when he was shot. Id., at 602. Finally, in Beltran v. State, 728 S.W.2d 382 (Tex.Cr.App.1987), the defendant shot the deceased immediately after she handed him the money from the cash drawer during a robbery of a tortilleria. While acknowledging in each of the three cases that the killings were senseless and unnecessary, we nevertheless held the circumstances of the offenses were not so brutal as to prove in themselves that any of the three defendant’s posed a continuing threat to society.

The circumstances of the offense in the instant case are distinguishable from Smith, Brasfield, Keeton, Roney, and Beltran. Appellant shot Thompson twice; both shots were fired at extreme close range and both shots were fatal. Significantly, appellant shot Thompson in the head as she was either kneeling or sitting on the floor after *360the infliction of the first wound to her abdomen. Appellant’s infliction of multiple wounds at close range indicates a wanton and callous disregard for human life not present in the aforementioned cases. See, Johnson v. State, 853 S.W.2d 527, 531-533 (Tex.Cr.App.1992); Bower v. State, 769 S.W.2d 887, 890, 895 (Tex.Cr.App.1989); and, Livingston v. State, 739 S.W.2d 311, 340 (Tex.Cr.App.1987).

Of even greater significance for our review is the indication that appellant spent considerable effort in hunting down the second deceased, Cutler, before killing her. After Cutler locked herself into an adjacent room, appellant attempted to get in by shooting the doorknob. Appellant then tore down a wicker shelf covering a receptionist window, broke the window, reached inside and shot Cutler as she crouched in a comer. We believe this evidence suggests appellant committed the second murder in order to eliminate a witness to his first murder. In Johnson, 853 S.W.2d at 532-533, we upheld the jury’s affirmative answer to the second punishment issue where the defendant committed two murders for the purpose of eliminating the witnesses to an extraneous burglary. We believe the circumstances of the second homicide likewise evince an intent to eliminate a witness.

2. and 3. Calculation and Forethought of the Offense

We have also examined the calculated nature of a defendant’s acts and the forethought with which he planned and executed his crime in order to determine his propensity to commit future acts of violence. O’Bryan, 591 S.W.2d at 480.

In Ellason v. State, 815 S.W.2d 656 (Tex.Cr.App.1991), the defendant was convicted of capital murder after he stabbed an elderly neighbor to death when she awoke and recognized him as he burglarized her home. The evidence indicated the defendant entered the deceased’s house unarmed and stabbed the deceased in a “split second decision” after panicking upon being recognized. Id., at 659. In reforming the defendant’s death sentence, we observed:

... There is no evidence that appellant preplanned the burglary or the murder. Appellant’s murder of [the deceased] appears to have been an immediate reaction to being recognized by [the deceased] after she unexpectedly awoke ... Moreover, the facts show that appellant entered [the deceased’s] residence unarmed and did not look for a weapon with which to arm himself while burglarizing [the deceased’s] residence.

Id., at 662.

In Smith, 779 S.W.2d 417, despite evidence that the defendant loitered around the deceased’s apartment complex, ostensibly looking for opportunities to engage in sexual relations, we held there was no evidence the defendant had pre-planned either the rape or the murder. Id., at 420-421.

In Warren v. State, 562 S.W.2d 474 (Tex.Cr.App.1978), the defendant was convicted of capital murder committed in the course of a burglary. While burglarizing the deceased’s home, the defendant found a pistol. Later, the deceased discovered the defendant and threatened to kill him. In response to the threat, the defendant shot the deceased. In reforming the defendant’s death sentence, we noted that he had only intended to burglarize the deceased’s home and had acted under provocation. Id., at 476. We concluded that “the facts of the instant case reflect a criminal act of violence, but it was not a calculated act.” Id.

In contrast to the above cases, there is evidence of pre-planning in the case before us. Appellant stated in his confession that he had arranged the meeting with Thompson for the purpose of dissuading her from filing charges for bad checks he had written her. Appellant made the appointment under a fake name. The day before their meeting, appellant purchased the .357 revolver and the ammunition which he used to kill both victims. Prior to meeting with Thompson, appellant secreted two pistols in his sling. We infer from these actions appellant anticipated a conflict and armed himself in preparation. But see, Beltran, 728 S.W.2d at 390 (“there was no showing that ... violence was intended although the appellant was armed when he entered the store”). Consequently, we *361conclude some amount of pre-planning went into the offense.

4. Character Evidence

Evidence concerning a defendant’s character is a relevant consideration of whether he poses a continuing threat to society. Wilkerson, 881 S.W.2d at 343 (Baird, J., dissenting). Appellant presented testimony by a number of witnesses during guilt/inno-eence and punishment, all of whom characterized appellant as non-violent and non-aggressive. They further testified that because appellant was non-violent, he was unlikely to commit future acts of violence. The State presented no evidence in rebuttal.

In Smith, 779 S.W.2d at 419, witnesses for both the prosecution and the defense uniformly characterized the defendant as a nonviolent person using adjectives such as “mild mannered” and “gentle.” Id., at 421. Further evidence showed appellant was considered a “hero” by a local office of the Texas Employment Commission because appellant had once subdued a man assaulting a TEC employee. Id. Reviewing this evidence, we stated:

Considering the uncontested testimony of appellant’s nonviolent character, we cannot say that the inferences urged upon us by the State are adequate to persuade a rational jury of a “probability” appellant would commit future acts of violence.

Id.

In Rosales v. State, 841 S.W.2d 368 (Tex.Cr.App.1992), however, we held the defendant’s unrebutted evidence of good character was insufficient to overcome the jury’s determination that appellant constituted a continuing threat to society. Id., at 382.

In the instant case we find the unrebutted evidence of appellant’s good and peaceful character to be a mitigating factor. Nonetheless, the extent to which appellant’s unre-butted character evidence mitigates the offense must be weighed against the other Keeton factors.

5. Other Evidence

Neither the State nor appellant presented any other evidence, such as psychological evidence or past criminal history, which we typically review under the Keeton framework. Nonetheless, the absence of this evidence does not automatically undermine a jury’s affirmative answer to the second punishment issue. See, Rosales, 841 S.W.2d at 382 (“... [P]sychiatrie evidence is not essential [to prove future dangerousness].”); Wilkerson, 881 S.W.2d at 336 (Baird, J., dissenting); Black, 816 S.W.2d at 355 (lack of prior criminal record offset by other considerations); and, Livingston, 739 S.W.2d at 340 (“[L]ack of extraneous violent acts, reputation or psychiatric testimony on issue of future dangerousness does not alone negate finding under Art. 37.071(b)(2).”). But see, Smith, 779 S.W.2d at 421 (death sentence reformed, in part because of no evidence of past criminal or violent conduct as well as lack of bad reputation evidence).

In weighing the factors enunciated in Keeton, we find the evidence supports the jury’s affirmative answer to the second punishment issue. The evidence presented at trial shows the offense was both premeditated and brutal. The purchase of the murder weapon the day before the murders, the making of the appointment under a fake name, and the secretion of the weapons prior to meeting with Thompson indicates premeditation. The brutality of appellant’s act is readily apparent by his having shot Thompson twice and then hunting down Cutler in order to eliminate a witness. Although the character evidence is uniformly favorable to appellant, we find this evidence alone insufficient to mitigate the premeditation and brutality of the offense. Appellant’s twenty-first point of error is overruled.

The judgment of the trial court is affirmed.

McCORMICK, P.J., and WHITE and MEYERS, JJ.,

concur with the following note: Regarding appellant’s eighth point of error, we do not agree that the trial judge abused his discretion by limiting trial counsel’s questions. Therefore we can only concur in the result since the majority holds harmless the alleged error. We otherwise join the majority opinion.

*362MALONEY, J., concurs in the result reached in Part III and otherwise joins the opinion.

CLINTON, Judge,

dissenting.

In his first two points of error appellant argues that the trial court erred in failing to grant his motion to quash the indictment. He claims on appeal that the indictment is defective in that it does not allege the culpable mental state of intentional or knowing vis-a-vis the second alleged murder victim. In his motion to quash appellant complained that the indictment was deficient in that it failed to allege “all the essential acts and omissions by the Defendant necessary to constitute a violation of Section 19.02 [sic?] of the Penal Code of the State of Texas.” He nowhere complained, however, of a failure to allege every requisite culpable mental state. He has therefore forfeited that particular complaint on appeal. Article 1.14(b), Y.A.C.C.P.; Studer v. State, 799 S.W.2d 263 (Tex.Cr.App.1990). The Court should not reach the merits of appellant’s contention at ah.

Moreover, in treating the merits, the Court errs. The Court considers it a foregone conclusion that the second murder under V.T.C.A.Penal Code, § 19.03(a)(6) is nothing but an aggravating feature. It is true, as the State notes in its brief, that in another context this Court has indeed designated the second murder as “merely the aggravating circumstance that renders ‘capital’ the murder of the person” first aUeged in the indictment. Narvaiz v. State, 840 S.W.2d 415, at 433 (Tex.Cr.App.1992). It seems to me this proposition requires a more searching scrutiny than the Court has afforded it so far. Failing that, the Court here falls back on a host of cases holding that it is not necessary to allege the constituent elements of the aggravating feature of a capital murder to allege a complete offense. Maj. op. at 338. But the Court has also held, in essence, that if the State chooses to allege an aggravating feature not by simply naming it in the indictment, but by alleging the constituent elements thereof, it must allege all of the constituent elements. See Ex parte Cannon, 546 S.W.2d 266 (Tex.Cr.App.1976) (burglary indictment which did not allege entry with intent to commit “theft,” instead alleging entry with intent to commit the requisite elements of theft, but which left out one element thereof, did not allege an offense, and therefore could not support conviction for burglary). That the indictment here later alludes to “said murders” does not save it, Davila v. State, 547 S.W.2d 606 (Tex.Cr.App.1977) notwithstanding, because the indictment has only alleged the constituent elements of one murder up to that point, and hence has not theretofore “said murders.”1 Thus, in my view, had appellant raised his contention timely in the trial court, it would have been a valid complaint.

In any event, appellant did adequately call attention to the defect in the jury charge, viz: failure of the application paragraph to require the jury to find that appellant caused the second victim’s death “intentionally or knowingly.” I cannot concur, therefore, in the Court’s disposition of his third point of eiTor on the basis of procedural default, as I can its disposition of appellant’s first two points of error. Reaching the merits of the third point of error, as it should, the Court fails to recognize it is any error at all to fail to require in the application paragraph that the jury find an elemental culpable mental state before it is authorized to convict. In this I cannot join.

Simply put, the application paragraph here did not require the jury to find every requisite element of the offense of capital murder under § 19.03(a)(6)(A) as a predicate to conviction. The Court holds that it need not, because the allusion later in the application paragraph to “both of said murders” was enough to refer the jury back to the abstract definition of murder appearing earlier in the charge, whereby the jury would have recognized the need to find that the second murder was committed intentionally or knowingly before it could convict. This observation, in combination with compelling evidence appellant did indeed intentionally or knowingly commit both murders, might be sufficient to establish appellant did not suffer egregious *363harm from the defect in the application paragraph. Thus, I might be persuaded there was no fundamental error in the jury charge, as defined by Almanza v. State, 686 S.W.2d 157 (Tex.Cr.App.1985) (Opinion on State’s motion for rehearing). But that is not the standard to be used here, since appellant objected to the jury charge in this cause. Instead the question is simply whether “some harm” resulted from the error. Arline v. State, 721 S.W.2d 348 (Tex.Cr.App.1986). The application paragraph required the jury to find appellant caused the death of the first victim “intentionally or knowingly.” That requirement was conspicuously absent as pertains to the second victim. That the application paragraph later alluded to “both of said murders,” even if that were sufficient to direct the jurors to the abstract definition of murder found earlier in the jury charge, would at best serve to confuse, rather than to clarify. Given this charge, there is a genuine possibility the jury did not feel obliged to find the second murder was committed intentionally or knowingly — an element of the offense — before it was authorized to convict appellant of capital murder. Surely that is enough to constitute “some harm.” For, however compelling the evidence of intent may have been, both the Sixth Amendment to the United States Constitution and Article 1.14(a), V.A.C.C.P., guarantee appellant a jury finding on that issue before he can be lawfully convicted of capital murder.

For this reason the judgment of the trial court should be reversed and the cause remanded for a new trial. Because the Court does not, I dissent. I write further to address what I consider to be deficiencies in the Court’s treatment of several other points of error.

In his sixth point of error appellant complains that he was deprived of equal protection of the laws under the Fifth Amendment to the United States Constitution when the trial court declined to submit the special issues at the punishment phase of trial that are contained in the 1991 legislative amendment to Article 37.071. Applying the pre-amendment version of Article 37.071, appellant contends, denied him the benefit of the mitigation instruction that was added to the statute by Acts 1991, ch. 838, § 1, p. 2899, eff. Sept. 1,1991. However, Section 5 of that same amendment expressly provided that it “applies only to an offense that is committed on or after September 1, 1991.” Thus, although appellant’s trial commenced in October of 1991, after the effective date of the amendment, because the offense occurred in September of 1990, by its express terms the amendment does not apply to him.2 Moreover, the amendment does not apply to any capital murderer who committed his offense before September 1, 1991. Every capital murderer thus situated will have special issues submitted at the punishment phase of trial according to the provisions of Article 37.071 as it read prior to the 1991 amendment. Because all similarly situated capital murder defendants are treated the same, there simply is no colorable equal protection claim. Nothing more need be said. The Court’s discussion of “fundamental rights” and “suspect classifications” is confusing, and, anyway, superfluous.

The Court disposes of appellant’s tenth and eleventh points of error by agreeing with the State’s contention that the appointment book notation and patient application form were not admitted for the truth of the matters asserted therein, but only to explain to the jury “how the officers came to suspect [ajppellant and .seek him out.” The State argues that such items, “offered for the purpose of showing what was said therein, rather than for the truth of the matter asserted, *364do not constitute hearsay.”3 The Court uncritically accepts this proposition, parrots a number of cases in support thereof, and is done with it. Maj. op. at 347.

But that is not the end of the matter. The appropriate question to ask next, of course, is whether the substance of the out of court declaration — “what was said” — has any relevance at all apart from the truth of the matter asserted. How appellant came to be a suspect in the case does not seem to me to have “any tendency 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.Cr.Evid., Rule 401. In any event, the State, as proponent of the evidence, did not articulate this or any other non-truth-of-the-matter-asserted basis for admitting the evidence at trial.

This suggests that in all likelihood the State had no other purpose in mind. The “matter asserted” in the appointment book is that somebody with a name very similar to appellant’s was scheduled to be at the scene of the killings at the very time they occurred. “[T]he probative value” of that statement “as offered flows from declarant’s belief as to the matter.” Tex.R.Cr.Evid., Rule 801(c). Likewise, the “matter ... implied” by the patient application form is that somebody with appellant’s name actually showed up at the appointed time; and one would assume that the value of this statement “as offered” also “flows from the declarant’s belief’ that that was indeed his name. Id. These statements have no relevance that I can see apart from these express or implied matters asserted. Obviously the State hoped the jury would infer from these writings that appellant was at the scene at the time of the killings. Because that is the most obvious probative value the appointment book notation and patient application form have — indeed, the only probative value I can see — appellant’s hearsay objection should have been sustained.

Having already concluded the trial court reversibly erred in this cause, I need not decide whether overruling appellant’s hearsay objection was harmless beyond a reasonable doubt under Tex.R.App.Pro., Rule 81(b)(2).

I- respectfully dissent.

OPINION

COCHRAN, J.,

delivered the opinion of the Court

in which PRICE, WOMACK, JOHNSON, KEASLER, HERVEY, HOLCOMB, JJ„ joined.

Appellant was convicted of capital murder for shooting his wife, Tammy Gardner, in the course of committing or attempting to commit burglary or retaliation. Based upon the jury’s answers to the special punishment issues, the trial court sentenced him to death. On direct appeal to this Court, appellant raises eleven points of error, including the legal and factual sufficiency of the evidence to support his conviction. After reviewing appellant’s points of error, we find them to be without merit. Therefore, we affirm the trial court’s judgment and sentence of death.

Factual Background

Appellant and Tammy Gardner had a *282relatively short, but violent, marriage.1 Before Tammy married appellant in 1999, she was very outgoing and happy. After that marriage, she lost weight, became introverted, and lost her sparkle. Appellant dominated, threatened, and physically abused her. His name was tattooed on her inner thigh.

Jacquie West, Tammy’s best friend, testified that the one time she visited Tammy’s home after the marriage, she and Tammy’s daughter, Jessie, were sitting in the living room when appellant came in, pushed Tammy onto the bed, sat on her, choked her with his hand, and then put a gun to her head. Appellant said that if Jacquie didn’t leave, he would kill Tammy. Jacquie left and never returned. Shortly thereafter, Tammy sent Jessie to live with her natural father for her safety.

Both Jacquie and Jessie saw injuries on Tammy’s face on various occasions. Tammy told Jessie that one time appellant shoved her into a bookcase, then hit her and gave her a black eye. Jacquie said that Tammy once had a large bruise running diagonally across her face. When confronted, Tammy matter-of-factly admitted that appellant had hit her in the face with a hammer. Both had seen appellant “stalking” Tammy at different times.

Tammy told them that “she wasn’t getting out of there alive,” meaning that she would not get out of her marriage alive. Candace Akins, her boss at the Action Company, a wholesale horse-equipment company, said that Tammy was constantly fearful, nervous, and in extreme financial difficulties. Tammy said that “she wanted out of the relationship,” but she was afraid to leave, and she told Candace many times, “I can’t leave, he will kill me.”

Tammy eventually went to a neurologist complaining of vision loss, headaches, sleeplessness, anxiety, and depression. She told the doctor’s wife — who was assisting her husband and who had her own family counseling practice — that she was too embarrassed to tell the doctor that her migraines were caused by physical injuries from her husband. She said that appellant had pulled her hair and hit her both with his fists and with a gun. She was very frightened of him and kept crying, “The only way I’m going to get out of this relationship is by being dead.” She explained that appellant had threatened to kill her and her children if she left him.

Finally, in December 2004, Tammy borrowed money from her company to file for divorce. On Christmas day she told appellant to move out, so his parents came and took him and his belongings back to Mississippi. She “perked up” after she filed for divorce, and she began to see more of Jacquie and her daughter Jessie. At *283work, Tammy marked her calendar for February 7, 2005, the day her divorce would become final, and she would go over to the calendar and say, “You’re almost there. You’re almost there.”

But she also told Jacquie, Jessie, and Candace that she didn’t think she would get to that day because appellant would kill her first. Jessie testified that appellant kept calling and leaving, phone and text messages: “Are you going through with the divorce or not?” When Jacquie and Tammy had lunch together at Apple-bee’s on January 20th, Tammy’s cell phone stai’ted ringing as soon as they got there. It rang constantly, making Tammy upset and scared. She told Jacquie, “He’s going to kill me” before the divorce becomes final.

On Sunday, January 23rd, Tammy was driving Jessie home after church when appellant kept text messaging about the upcoming divorce and asking “YES OR NO?” Jessie read the text messages to her mother, who became frantic, but Tammy did not reply to appellant’s question. The messages stopped about 5 p.m. Jessie stayed at her father’s home that night.

Tammy called David Young, her company’s vice-president, early that evening and asked him if she could come talk to him. She arrived around 7:00 p.m. and stayed about three hours, seeking his help in “disappearing” so that no one could track her. Mr. Young was concerned about Tammy’s safety, but he felt more comfortable when she called him after she returned home about 11 p.m. According to the phone records, they talked until 11:13 p.m.

At 11:58 p.m., Erin Whitfield, the 911 dispatcher for the Collin County Sheriff’s Office, received a 911 call from a woman who identified herself as “Tammy,” gave her address, and said she needed an ambulance. Her speech was very slurred and hard to hear, but she said that her husband had either slapped or shot her (Ms. Whitfield wasn’t sure until she replayed the tape that the word was “shot”). The woman said that she couldn’t hear the dispatcher because her ears were still ringing from gunshots and that her head hurt and “there was blood everywhere.” When Ms. Whitfield asked if the person who shot her was still there, the woman said, “No, he left in a white pickup truck with Mississippi plates.” She said his name was Steven Gardner. The dispatcher had to yell and repeat herself because the woman sounded like she was choking and vomiting. Then the line disconnected.

Ms. Whitfield dispatched police and paramedics, but it took the police about 25 minutes to arrive because, at first, they went to the wrong address, 3191 FM 2862 instead of 9191 FM 2862. As Deputy Armstrong drove there, he saw a white truck sitting in a ditch by a creek about two or three miles from Tammy’s home, but it was only later that he learned that they were looking for a white truck. He was the first to arrive at Tammy’s home. He knocked on the doors, but there was no answer, and he could not get in through the windows. He had to kick in the front door. He saw a light on in the bedroom, and, when he entered, he saw Tammy on the bed with a trail of blood leading into the bathroom. She was trying to sit up, but she was bleeding badly from her head and seemed to be in shock.

By the time the paramedics arrived, Tammy was spitting up a lot of blood and mumbling incomprehensibly. She was wearing a red robe. One of the paramedics, Stephanie Taylor, cut the bottom part of the robe off because she couldn’t properly assess Tammy’s condition while she was dressed. Tammy was flown by helicopter to Parkland Hospital, but she went into a coma, and her family took her off life support two days later. Tammy died *284from a single gunshot to her head. The bullet had hit her in the front right temple, traveled downward through her brain, and exited below her left ear. Apparently, Tammy had been sitting up against a pillow in bed, and the exiting bullet went through the pillow and out the bedroom window. The bullet was never recovered.

Investigating police found Tammy’s house keys — keys that Jessie said her mother always kept in her purse — in a tool chest in the back of her truck parked in the driveway. Nothing else appeared to have been taken from the house. There was no sign of forced entry.

Meanwhile, appellant had borrowed his brother-in-law’s white Ford F-150 pickup truck that Sunday afternoon, saying that he was going to visit relatives in nearby Hattiesburg. However, appellant’s credit card was used twice that day at a convenience store in Marshall, Texas, which is on the way from Mississippi to Collin County. He apparently bought gas for $28.00 and then made another purchase for $3.86. The backing and store price tag for a pair of Brahma work gloves — an item that the Marshall convenience store sold for $1.49 — were later found in the white F-150 pickup. Appellant’s fingerprint was found in that pickup as were fibers that were similar in all respects to red fibers taken from Tammy’s robe.

In the early hours of Monday, Collin County Det. Cundiff found appellant’s father’s telephone number and called him in Mississippi. Det. Cundiff obtained appellant’s cell phone number and called him at 5:15 a.m. Appellant hung up on him.

Appellant returned to his brother-in-law’s home driving the white F-150 pickup at about 8:30 a.m. His sister, Elaine Holi-field, had already been told that Tammy had had “an accident.” She confronted appellant and asked, “What happened?” He didn’t say anything; he just started crying. She asked if Tammy was okay, and appellant said, “Yes.” Elaine told him that he had to turn himself in to the police, and he said, “Okay.” He showered, changed clothes, shaved, and went first to his parents’ home and then to the sheriffs office. Elaine then went to check for her husband’s .44 Magnum that he kept under his mattress. It was there, with five live rounds and one spent round. Appellant’s brother-in-law testified that he never left spent shells in his gun; he always reloaded it.

When appellant turned himself in to the sheriffs office in Mississippi, officers there called Det. Cundiff in Collin County, who said that he did not have a warrant out for appellant’s arrest. But he asked to speak to appellant on the phone, and appellant agreed. Det. Cundiff explained that he knew that appellant had been in Texas and he wanted to find out what happened to Tammy. Appellant said, “I don’t have an answer for that one.” When Det. Cundiff explained that Tammy had been shot in the head, appellant replied, “Okay.” Then Det. Cundiff said that Tammy was still alive, and appellant said that she could tell what had occurred “if she wants, that’ll be fine.” Appellant then went home but was later arrested and brought back to Collin County for trial.2

Sufficiency of the Evidence

In his first two points of error, appellant claims that the evidence was legally and factually insufficient to prove that he committed the offense of capital murder. First, he argues that the evidence was insufficient to establish that he was the person who shot and killed his wife, Tam*285my. Second, he argues that the evidence was insufficient to prove that he murdered her while in the course of committing either burglary or retaliation.

A. The Standard of Review

In assessing the legal sufficiency of the evidence to support a capital murder conviction, we consider all of the evidence in the light most favorable to the verdict and determine whether, based on that evidence and reasonable inferences therefrom, a rational juror could have found the essential elements of the crime beyond a reasonable doubt.3 In addressing a claim of factual insufficiency of the evidence, we review all of the evidence in a neutral light, but we are required to give great deference to the jury’s assessment of the credibility of the witnesses, the weight of the testimony, and the resolution of any conflicts in the testimony.4

B. Sufficiency of the Evidence to Prove that Appellant was the Shooter

Appellant argues that the evidence is both legally and factually insufficient to prove, beyond a reasonable doubt, that he was the person who shot Tammy Gardner because no witness could affirmatively “put him at the scene” or even specifically testify that he had left Mississippi on the day that Tammy was shot.

Although no eyewitness testified in court to seeing appellant shoot Tammy or even to seeing him in Texas on the day that she was shot, the State may prove the defendant’s identity and criminal culpability by either direct or circumstantial evidence, coupled with all reasonable inferences from that evidence.5 In this case, the evidence that supports the jury’s verdict that appellant was the person who murdered Tammy includes the following:

• Tammy told the 911 dispatcher that appellant, her husband, shot her.6

• She told the dispatcher that her attacker was driving a white Ford pickup truck with Mississippi license plates.

• Appellant borrowed his brother-in-law’s white Ford pickup truck with Mississippi plates about twelve hours before Tammy was shot. He returned to his brother-in-law’s home in Mississippi about 8:30 a.m. the next day.

• Appellant’s credit card was used twice at a convenience store in Marshall, Texas, on the day Tammy was shot. Cardboard backing with a price tag for Brahma work gloves that the convenience store sold for $1.49 was found in the F-150 pickup after appellant returned on Monday.

*286• Appellant’s fingerprints were in the F-150 pickup.

• Fibers were found in the F-150 pickup that had exactly the same characteristics — a unique red color, type and size of acrylic fiber, and polymer composition — as fibers taken from the red robe that Tammy was wearing when the police and paramedics arrived after the shooting.

• Appellant previously abused Tammy, both physically and mentally; he stalked her; he threatened her; and he exhibited increasing ire that she was getting a divorce. This evidence established his motive and intent to kill his wife.

• Appellant’s sister asked appellant, when he returned to his brother-in-law’s home after the shooting, “What happened?” and appellant started to cry and agreed to turn himself in to the police. This was some evidence of his consciousness of guilt.

• The .44 magnum,7 always kept fully loaded with live bullets under appellant’s brother-in-law’s mattress, had one spent shell when appellant’s sister retrieved it after appellant’s return. This evidence supports an inference that appellant used this weapon to shoot Tammy.

Taken as a whole, this evidence was both legally and factually sufficient to establish, beyond a reasonable doubt, that appellant was the person who shot Tammy Gardner.8 Appellant argues that this evidence shows nothing more than that appellant “could have been the killer.” But the jury was entitled to believe Tammy’s dying words that he was the killer, especially when her identification was corroborated by so much inculpatory circumstantial evidence of guilt.9 As for his factual sufficiency claim, appellant does not point to any specific piece of evidence or conflicting testimony that undermines the logical force or probative value of this inculpatory evidence.10 When the evidence establishing appellant’s identity as the shooter is viewed neutrally, it is not so weak that this finding is clearly wrong and manifestly unjust, nor is this finding contradicted by the great weight and preponderance of the evidence.11

Appellant also claims that the evidence is legally and factually insufficient to prove that he murdered Tammy while in the course of committing either burglary12 or retaliation.13 The evidence *287need be sufficient to prove only one of these two felonies, not both.14

Under the present indictment, appellant committed burglary if, without Tammy’s effective consent, he entered her home and committed or attempted to commit murder.15 In a prosecution for capital murder based on burglary, the requirement that a felony be intended is satisfied by the murder of the victim.16 Thus, the only question is whether the evidence is legally and factually sufficient to prove that appellant did not have Tammy’s consent to enter her home sometime between 11:13 p.m. and 11:58 p.m. on that Sunday night. Appellant argues that there was “no evidence pertaining to whether appellant had the deceased’s permission to enter the house.” There is, however, ample circumstantial evidence that Tammy did not consent to appellant’s middle-of-the-night entry, including the following facts:

• Jacquie West, Candace Akins, and Tammy’s daughter, Jessie, all testified that Tammy was terrified of appellant and believed that he would kill her.

• Tammy had repeatedly told them that she would never get out of her marriage to appellant alive, that he would kill her first.

• Jessie testified that, on the afternoon of Tammy’s death, appellant kept sending her text messages, asking about whether she planned to go through with the divorce, and, when Tammy did not respond to those messages, his messages became shorter and bigger until they culminated with repeated texts: “YES OR NO?” Tammy was frantic as she drove down the road with Jessie.

• Immediately before her murder, Tammy had spent three hours visiting with the vice-president of her company seeking his assistance to help her “disappear” so that no one could track her down.

• Appellant had kept a second set of keys to Tammy’s house when he left at Christmas after giving one set to Tammy’s son, John.

• The physical condition of the bedroom leads to a reasonable inference that Tammy was surprised by the intruder and shot as she was sitting up in bed, propped up by pillows.

The jury could infer from this evidence that Tammy would not, and did not, give appellant consent to enter her home after 11 p.m. on January 23, 2005.17 Viewing *288the totality of the evidence, the jury could reasonably infer that appellant drove to Tammy’s isolated rural home, used his extra key to open the front door, walked down to the bedroom to confront Tammy sitting up in bed, shot her through the right temple, took the house keys from her purse hanging on the bedpost, locked the front door as he left, put Tammy’s keys into the tool box in Tammy’s truck, stopped at a ditch two to three miles down the road (perhaps to throw his extra set of keys into the ditch), and then drove back to Mississippi. Tammy, meanwhile, was still conscious enough to put on her red robe, which was hanging on the bedpost, look outside to see appellant departing in the white Ford truck with Mississippi plates, and then call 911 to summon an ambulance. Because the evidence is both legally and factually sufficient to prove that appellant murdered Tammy while in the course of committing burglary, we need not decide whether it is also, or alternatively, sufficient to prove appellant shot Tammy while committing the offense of retaliation.18

Accordingly, we overrule appellant’s points of error one and two. We address appellant’s evidentiary claims before those dealing with jury selection, because they are of general interest to the bench and bar.

Evidentiary Issues

In three points of error, appellant challenges the trial judge’s admission of evidence during the guilt phase of the trial.

A. The Admissibility of Tammy’s 911 Call

In his fifth point of error, appellant claims that the trial judge erred in permitting Erin Whitfield to testify to the contents of the 911 call Tammy made after she was shot. Appellant objected to Ms. Whitfield’s testimony at trial,19 arguing that this testimony was hearsay and that it violated the Confrontation Clause of both the federal and Texas constitutions. The State argued that it was a nontestimonial statement and admissible as (1) a dying declaration, (2) an excited utterance, and (3) a present sense impression. Because we find that the 911 call was admissible as a dying declaration,20 we need not address *289its admissibility as a nontestimonial excited utterance or present-sense impression.

Under Rule 804(b)(2) of the Texas Rules of Evidence, a dying declaration is a “statement made by a declarant while believing that the declarant’s death was imminent, concerning the cause or circumstances of what the declarant believed to be impending death.”21 ,This exception to the hearsay rule has been accepted under common-law tradition since before the drafting of the American Constitution.22 Texas courts have long held that the dying declaration exception does not infringe upon a criminal defendant’s right of confrontation under, the Texas Constitution.23 Under Texas common law, the proponent of a dying declaration was required to establish that it was made (1) when the declarant was conscious of approaching death “and had no hope of recovery,” (2) voluntarily, (3) without persuasion or influence from leading questions, and (4) when the declarant was of sound *290mind.24 This predicate could be established by either direct or circumstantial evidence, and it was not essential that the declarant actually say that he was conscious of impending death or without hope of recovery.25 Each case depends upon its particular circumstances, but sometimes the declarant’s conduct and the nature of his wounds would suffice.26 Under the modern-day Rule 804(b)(2), the common-law requirement that “there was no hope of recovery” was abrogated, and the focus turned more to the severity of the injuries than the declarant’s explicit words indicating knowledge of imminent death.27 All that the rule requires is sufficient evidence, direct or circumstantial, that demonstrates that the declarant must have realized that he was at death’s door at the time that he spoke. It is both (1) the *291solemnity of the occasion — the speaker peering over the abyss into the eternal— which substitutes for the witness oath,28 and (2) the necessity principle — since the witness had died, there was a necessity for taking his only available trustworthy statements29 — that provide the underpinning for the doctrine. As with the admission of all evidence, the trial judge has great discretion in deciding whether a statement qualifies as a dying declaration.30

Appellant argues that (1) “nothing in [Ms.] Whitfield’s testimony demonstrated the caller in any way believed her death was imminent” and (2) Ms. Whitfield could not identify the caller because she had never spoken to Tammy Gardner and did not recognize the voice on the phone. We believe that there is evidence sufficient to show both that it was Tammy Gardner who made the 911 call to Ms. Whitfield and that Tammy knew that she was dying.

Erin Whitfield testified that the person who made the 911 call.at 11:58 p.m. identified herself as “Tammy,” gave her address (which was the address of Tammy Gardner), and said that she needed an ambulance. She said that her husband, Steven Gardner, had shot her, and that he had left in a white pickup truck with Mississippi license plates (exactly the type of truck that appellant was driving that night). When police and paramedics finally arrived at the location that the caller had given them, they found Tammy Gardner in her bed, bleeding profusely from a gunshot wound to her head. This is sufficient evidence to support a finding that the person who made the 911 call was indeed Tammy Gardner, the deceased.31

In determining that sufficient evidence supported a finding that Tammy believed that her death was imminent, the trial judge could have relied upon the following facts:

(1) The single bullet entered her right temple, went through her brain, and exited below her left ear. This was a mortal wound;

*292(2) Ms. Whitfield testified that Tammy’s voice was very slurred and hard to understand;

(3) Tammy kept repeating that her head hurt and that she could not hear very well “because her ears were ringing from the gunshots”;

(4) She said that her husband had shot her, there was blood everywhere, and she needed an ambulance;

(5) Before the phone disconnected, Ms. Whitfield heard what sounded like Tammy choking and vomiting;

(6) When the first deputy arrived, he found Tammy on the blood-soaked bed, trying to sit up; she appeared to be in shock and was bleeding badly from both the back and top right of her head;

(7) There was a trail of blood leading into the bathroom, around the toilet, and in the trash can;

(8) When the paramedics finally arrived, Tammy was “spitting up a lot of blood” and mumbling incomprehensibly;

(9) She was in a vegetative state and died at the hospital two days later.

To satisfy the dying declaration exception, Tammy’s sense of impending death may be established in any satisfactory mode, including her express words, her conduct, the severity of her wounds, the opinions of others stated to her, or any other relevant circumstances.32 The totality of the circumstances set out in this record support the trial judge’s conclusion that Tammy believed that her death was imminent at the time she made the 911 call, even though she did not expressly state that belief and no one explicitly told her that she was dying.33 The trial judge did not abuse his discretion in admitting Ms. Whitfield’s testimony concerning Tammy’s dying declaration.34 Appellant’s fifth point of error is overruled.

B. The Admission of Tammy’s Red Robe

In his sixth point of error, appellant claims that the trial judge erred in admitting State’s Exhibit 36, the red robe that Tammy was wearing when paramedics arrived. Appellant argues that Stephanie Taylor, the responding paramedic, could testify only that the robe “appeared to be” the same robe that Tammy was wearing, and, because there was no chain-of-custody testimony,35 the State failed to *293authenticate Exhibit 36 as being the very-same robe that Tammy was wearing on the night she was shot.

An item of physical evidence offered at trial must be authenticated under Rule 901.36 Rule 901(b) sets out a nonexclusive list of methods for authenticating evidence, including,

(1) Testimony of Witness With Knowledge. Testimony that a matter is what it is claimed to be.

(4) Distinctive Characteristics and the Like. Appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances.37

Stephanie Taylor testified that Tammy was wearing a red robe when the paramedics arrived. She had to cut it off to complete her original assessment of Tammy. She recognized State’s Ex. 36 as being the “exact” same red robe because of (1) the distinctive jagged marks she made around the front zipper with her trauma shears and (2) the blood stains near the neck area. Based on this testimony, the trial judge did not abuse his discretion in admitting State’s Ex. 36 as having been authenticated as Tammy’s red robe.38 Furthermore, any possible error in the admission of State’s Ex. 36 was harmless because appellant affirmatively stated “No objection” when a sample cut from that robe was introduced into evidence as a comparison sample to the red fibers found in the white truck appellant had borrowed from his brother-in-law.39 Appellant’s sixth point of error is overruled.

C. Admission of Appellant’s phone conversation with Det. Cundiff

In his seventh point of error, appellant claims that the trial court erred in admitting a recording of the telephone conversation between appellant and Det. Cundiff after appellant went to the Jones County Sheriffs Office in Mississippi to “turn himself in” at his sister’s suggestion. Appellant argues that, even though he was not literally under arrest at the time of the conversation, he was the “focus” of the police investigation and was therefore entitled to Miranda 40 warnings under Escobe-do v. Illinois.41 But being the “focus” of an investigation does not necessarily render a person “in custody” for purposes of receiving Miranda warnings or those required under article 38.22 of the Code of Criminal Procedure.42 The appropriate in*294quiry is “whether there is a ‘formal arrest or restraint on freedom of movement’ of the degree associated with a formal arrest.” 43

The warnings required by Miranda and article 38.22 are intended to safeguard a person’s privilege against self-incrimination during custodial interrogation.44 “At tidal, the defendant bears the initial burden of proving that a statement was the product of ‘custodial interrogation.’ ”45 This Court has found four general situations that may constitute custody for purposes of Miranda and article 38.22:

(1) The suspect is physically deprived of his freedom of action in any significant way;

(2) A law enforcement officer tells the suspect he is not free to leave;

(3) Law enforcement officers create a situation that would lead a reasonable person to believe that his freedom of movement has been significantly restricted; and

(4) There is probable cause to arrest the suspect, and law enforcement officers do not tell the suspect he is free to leave.46

The evidence shows that appellant voluntarily went to the sheriffs office and talked to officers, who then called Det. Cundiff in Collin County. Det. Cundiff told them that he did not have an arrest warrant for appellant but that he wanted to talk to him. Appellant voluntarily spoke with Det. Cundiff, who told appellant that he was not under arrest. Det. Cundiff just wanted to know what appellant knew about Tammy’s injuries. When he told appellant that Tammy was still alive, appellant told him that she “can tell you [what happened] if she wants, that’ll be fine.” The conversation ended shortly thereafter, and appellant went home. The State offered a recording of that conversation as State’s Exhibit 61.

Appellant states that Det. Cundiff “had identified Appellant as the prime suspect and was acting on that identification in his attempts to garner incriminating evidence” during the phone conversation.47 Appellant implies that he was in custody under the fourth Dowthitt factor because Det. Cundiff had probable cause to arrest him by the time that they spoke on the phone. Regardless of whether Det. Cundiff had probable cause and could have obtained an arrest warrant, he did not have one at the time of their conversation, and he told both the Mississippi deputies and appellant that he did not have a warrant and that appellant was not under arrest. Furthermore, appellant said nothing to Det. Cundiff that furnished probable cause, and Det. Cundiff never told appellant that he was “a prime suspect.”48 Indeed, appellant left the po*295lice station and went home after talking with Det. Cundiff.

Appellant has failed to establish that he was in custody during the telephone conversation. Therefore, the trial judge did not abuse his discretion in admitting the recording of that noncustodial conversation.49 Furthermore, any error in the admission of that recording was harmless because appellant made no incriminating statements to Det. Cundiff.50 At most, the conversation showed that appellant did not offer any explanation for being in Texas and that he did not display any emotion when he was informed that his wife had been shot. Appellant has not suggested that anything in that conversation was inculpatory or harmful. Appellant’s point of error number seven is overruled.

Challenges to the Veniremembers

In point of error three, appellant claims that the trial judge improperly denied his challenges for cause to five venire-members: Donna Williams, Donna Crab-tree, William Chambers, David Sanford, and Susan McMillan. He asserts that their answers to various questions demonstrated that they could not be fair and impartial jurors in this case. In his fourth point of error, appellant claims that the trial court improperly disqualified Venire-member Charles Perry. We first set out the appropriate standards of review.

A. Appellant’s burden on appeal

A veniremember is challengea-ble for cause if he has a bias or prejudice against the defendant or against the law upon which either the State or the defense is entitled to rely.51 The test is whether the bias or prejudice would substantially impair the prospective juror’s ability to carry out his oath and instructions in accordance "with the law.52 Before a prospective juror may be excused for cause on this basis, the law must be explained to him, and he must be asked whether he can follow that law, regardless of his personal views.53 Finally, the proponent of a challenge for cause has the burden of establishing that the challenge is proper.54 The proponent does not meet this burden until he has shown that the veniremember understood the requirements of the law and could not overcome his prejudice well enough to follow the law.55 When the record reflects that a veniremember vacillated or equivocated on his ability to follow the law, the reviewing court must defer to the trial judge.56

We review a trial court’s ruling on a challenge for cause with considerable deference because the trial judge is in the best position to evaluate a veniremember’s *296demeanor and responses.57 A trial judge’s ruling on a challenge for cause may be reversed only for a clear abuse of discretion.58 When a veniremember’s answers are ambiguous, vacillating, unclear, or contradictory, we give particular deference to the trial court’s decision.59

In this case, appellant exhausted all of his peremptory challenges, and the trial judge granted him an additional strike. Thus, appellant must show that the trial judge improperly denied at least two of his challenges for cause.60

B. Veniremember Donna Williams

Appellant challenged Ms. Williams, claiming that she would automatically impose the death penalty. Ms. Williams stated that she believed in the death penalty “if all the evidence is there.” She described herself as being “tough” in holding people accountable. She thought that the death penalty should be an option for murder committed in the course of a burglary or retaliation, but that it would not be “automatically required.” She stated that she would not give an automatic answer on the future dangerousness issue and that she would give both defense and State a “fair shot” on the mitigation issue. She agreed with defense counsel that the death penalty was not the only way to hold someone accountable in a capital murder case. When counsel asked her about her application of the death penalty, Ms. Williams replied, “I wouldn’t automatically vote for death.” His questioning continued:

Q: In the situation, as Question No. 9 [of the juror questionnaire asking about murder in the course of burglary or retaliation], is that an automatic death penalty for you?

Of intentional murder? >

Yes.

Yes. Following exactly what this question says. <©

It’s an automatic death?

If it’s capital murder and it’s proven.

Could you consider a life sentence in that case? Let me rephrase that. In listening to you, would it be correct to say that you couldn’t consider a life sentence? <©

No, I could. <1

Then I’m a little confused because I thought you said that it was an automatic death. O’

In the State of Texas. <1

This is a hypothetical, and you’re sitting on a jury panel, and this is what — you have found it was an intentional murder committed in the course of committing burglary or committing retaliation of capital murder in which the death penalty may be imposed. You agree with that law, correct? o

Yes. i>

Do you agree that that would be an automatic death penalty? <©

Yes.

Appellant asserts that this exchange demonstrates that Ms. Williams would automatically impose the death penalty in this type of capital murder case even though she had repeatedly said that she could consider a life sentence. Reading this exchange one way, it seems that Ms. *297Williams changes her mind with each question. Reading this exchange another way, it seems she mistakenly thought that, under Texas law, the death penalty was an “automatic” option in this type of capital murder case,61 but that she herself would not automatically vote for a death sentence; she could consider a life sentence, depending on the facts. In resolving ambiguities and contradictions in jury questioning, we must give great deference to the trial judge’s assessment of the venire-member’s meaning based on demeanor, tone, and the totality of the questioning. This record supports a conclusion that Ms. Williams would not automatically impose a death sentence in this type of capital murder, even though she considered that sentence to be an automatic option.62 At worst, Ms. Williams’s responses were sometimes contradictory and vacillating. The trial judge did not abuse his discretion in denying appellant’s challenge for cause.63

C. Veniremember Donna Crabtree

Appellant has forfeited any complaint on appeal about this venire-member because he did not challenge her for cause in the trial court.64 But even if he had challenged Ms. Crabtree for cause, the trial judge would not have abused his discretion had he denied it. Ms. Crabtree had initially stated on her juror question-name that the death penalty should be automatic for murder committed during a burglary. But once the law had been explained to her, she said that she would “have to view it with different glasses,” and would hope that she “would be open for mitigating circumstances.” She told the prosecutor several times that she would keep an open mind, be fair to both sides, wait to hear the evidence, and not automatically say either a death sentence or a life sentence. She told defense counsel that, while the death penalty should be an option for murder during a burglary, she did not mean that it should be “automatic” in such a case. She then said that when she answered Question 9 on the questionnaire, she did not know the law about the special punishment issues and she had thought that death was automatic if the defendant committed murder during a burglary. “I guess that’s what it kind of does, if they commit a murder during burglary, they should be killed because nothing can bring the victim back.” Defense counsel then repeated his question, “So what you’re saying is that’s an automatic death sentence?” Ms. Crabtree agreed. But then she added, “I’m really kind of confused at what you’re asking me — do I need to get to that in terms of burglary? If this is his first time, and he kills someone, do I think he needs to be killed? I think that needs to be brought up to see if he would be a continuing threat.” She *298said that she had thought all murders were capital murders, and that committing a murder during a burglary required a death sentence. But once she understood what the law was, she stated that she could consider the special issues and weigh mitigating circumstances: “Is it dust or is it a boulder?” Ms. Crabtree was a classic vacillating juror, and the trial judge could have concluded from her demeanor, tone, and the totality of the questioning that she could follow the law once it had been explained to her.65 But the trial judge was never asked to make that decision because appellant did not challenge Ms. Crabtree for cause, thereby forfeiting this issue on appeal.66

D. Veniremember William Chambers

Appellant challenged Mr. Chambers based on the strength of his religious beliefs. Mr. Chambers stated that he was a man of faith who “follow[s] the law of the Bible,” but he also said that he could set aside his personal beliefs and follow the law given to him by the court. At one point, Mr. Chambers and defense counsel engaged in a colloquy concerning Scriptures and the law:

Q: So during the trial, or if during the charge of the Court, you find something that violates the Scriptures, you couldn’t follow the law, but you said you would follow the Scriptures; is that correct?

A: Yes, but I hedge my bets on that one for the simple reason that what I conclude to be Scripture may differ with what other people conclude to be Scripture. So I’ve got my understanding of it that there are certain places where I don’t have a problem with stepping aside from my personal beliefs and applying, say, the law. You know, but it’s there — it’s varied.

Q: But there’s other times where you couldn’t step aside from the Scriptures and follow the law, correct?

A: Well, to put it this way, what I can’t do is violate what my God tells me to do. In my experience, and particularly as I’ve grown older, in this country, according to these laws, I’ve not come into it ever. If I did, then I’ve got to be honest and say I’d go there.

Q: And that’s why I just want you to be honest that if somewhere during this proceeding you find that the law is — -the law as given to you, the law that’s as described to you, the charge of the Court that says this is what you shall do, if you find that in violation of the Scripture, you’re not going to follow that law; you’re going to follow what you defined as your Scripture, correct?

A: I would have to, yes.

Shortly thereafter, Mr. Chambers said that he would consider mitigation issues and would have no problem doing so. Throughout his questioning, Mr. Chambers stated that he could answer the special issues yes or no depending on the facts and circumstances and that nothing that he had heard about following the law conflicted with his conscience.

Although a juror who will ultimately be guided by his personal beliefs rather than the law is not a qualified juror,67 Mr. Chambers never suggested that *299his personal beliefs were actually in conflict with the applicable law, and he repeatedly stated that he could follow the law of the court as it was explained to him. That there might exist some unknown, hypothetical situation in which man’s law was in conflict with Mr. Chambers’s understanding of Scripture does not mean that he was unable or unwilling to follow the law in a death-penalty case.68 Under these circumstances, the trial judge did not abuse his discretion in denying appellant’s challenge for cause of Mr. Chambers.

E. Veniremember David Sanford

Appellant challenged Mr. Sanford for cause, arguing that the venire-member was unable to follow the law69 and that he said, on his juror questionnaire, that he could not consider mitigation evidence. But during the questioning by the attorneys, Mr. Sanford repeatedly said that he had an open mind and would follow the law; he could “be fair” and consider all of the evidence concerning both future dangerousness and mitigation. Although he believed that a person who committed a premeditated murder was a “good candidate” for the death penalty, he would listen to all of the evidence. In his juror questionnaire, Mr. Sanford said that he did not agree with the statement that “some people’s circumstances, birth, upbringing, and environment should be considered to determine punishment.” But, during questioning, he agreed that he could consider such evidence, even though he had answered the questionnaire honestly.

A juror is not required to consider any specific type of evidence or specific circumstances as either mitigating or aggravating, but he must be able to consider all evidence that he does find mitigating or aggravating in answering the special issues.70 In this case, Mr. Sanford stated that he could consider evidence of birth, upbringing, and environment in assessing punishment, even though he did not personally find them relevant. More importantly, the law does not require him to *300consider these specifically enumerated types of evidence as either mitigating or aggravating.71The trial judge did not abuse his discretion in overruling appellant’s challenge for cause of Mr. Sanford.

F. Veniremember Susan McMillan

After very short questioning of veniremember Susan McMillan, appellant simply announced “We challenge,” without giving any reason for that challenge or stating whether it was intended as a challenge for cause or a peremptory challenge. Because appellant failed to describe what type of challenge he was exercising or the specific basis for a challenge for cause (if he intended a challenge for cause), he failed to preserve any issue for appellate review concerning this veniremember.72

In sum, because appellant has not shown that the trial judge improperly denied at least two of his challenges for cause, his third point of error is without merit, and it is overruled.73

G. Veniremember Charles Perry

In his fourth point of error, appellant argues that veniremember Perry was improperly disqualified from jury service by the trial judge because he had a prior Class C theft conviction for writing “bad checks.” He claims that the State failed to prove that Mr. Perry was the same Charles Perry who had been convicted in 1981 of passing bad checks in Dallas. The State offered a four page DPS print-out of Mr. Perry’s purported criminal record. That record contained Mr. Perry’s date of birth and social security number. Mr. Perry stated that he lived in Dallas in 1981 and that he had written some checks to a Dallas bank when he did not have sufficient funds in his account, but that he thought that the matter was “resolved” because he had made restitution. Appellant argues that the DPS criminal record was not sufficiently reliable to establish that Mr. Perry actually had a final conviction for theft.

A person who has been convicted of, or who has a pending charge for, either misdemeanor or felony theft is absolutely disqualified as a juror.74 But Article 35.19 does not require that the trial judge be certain about a veniremember’s disqualification; he may disqualify a prospective juror if it “appears” that the person is subject to disqualification under the statute.75 The issue of whether a venireman is *301disqualified under the statute is one of fact; thus, if the evidence is conflicting, the trial judge does not abuse his discretion by finding either that the venire-member is or is not disqualified.76 Although Mr. Perry did not affirmatively state that he had a theft conviction (he said that he had “resolved” the matter and made restitution), he did acknowledge the underlying factual information in the DPS record.77 Appellant argues that DPS computer records are prone to error, but there is no evidence that this DPS record is erroneous. Mr. Perry did not dispute any of the facts in the DPS record; rather, he appeared to have not been aware of the legal consequences of the “resolved” charge, and he said that he “can write that down.” The trial judge did not abuse his discretion in concluding from this information that Mr. Perry appeared to be absolutely disqualified to serve as a juror.78 But even if Mr. Perry had been improperly disqualified by the trial judge, appellant failed to show that any error affected his substantial rights. Absent a showing of constitutional error, a defendant’s rights are affected only by harm caused by jurors who served on the case, not by those excused from service.79 There is no suggestion that the trial judge’s disqualification of Mr. Perry deprived appellant of a lawfully constituted jury, all of whose members were qualified to serve.80 We overrule appellant’s fourth point of error.

Jury Charge Claims

In two points of error, appellant claims that the jury charges at both the guilt and punishment stages contained error.

A. The Jury Charge at the Guilt Stage

In point of error eight, appellant claims that the jury charge at the guilt stage should have required the jury to unanimously decide whether he was liable for capital murder by shooting Tammy while committing the offense of burglary or of retaliation. At trial, he objected and argued that the jury should be given two different verdict forms, one for murder in the course of burglary and the other for murder in the course of committing retaliation. The State argued that, under Kitchens v. State, 81 burglary and retaliation were simply different manner and means to commit the single offense of capital murder; that is, murder committed during the course of any one of the enumerated felony offenses.

Appellant argues that Kitchens offers too simplistic an analysis and is outmoded under our more recent decisions, *302 Huffman v. State82 and Landrian v. State, 83 which focused upon the gravamen of the offense in determining whether the jury must be unanimous about alternative elements of the offense. These cases, however, are consistent with Kitchens, which implied that the gravamen of that capital murder was intentionally causing the death of a person while in the course of committing either aggravated sexual assault or robbery.84 The jury did not need to be unanimous on which of the two underlying felonies the defendant was in the course of committing.85 We have consistently followed the Kitchens analysis in the context of capital murder jury charges: the gravamen of capital murder is intentionally (or knowingly) causing a death, plus any one of various different types of aggravating elements, and we most recently concluded “that our holding in Kitchens applies equally to all alternate theories of capital murder contained within [Penal Code] § 19.03, whether they are found in the same or different subsections, so long as the same victim is alleged for the predicate murder.”86 Kitchens remains good law. The jury charge properly set out the underlying felonies of burglary and retaliation in the disjunctive, and the jury did not need to be unanimous concerning which felony appellant was in the course of committing. We overrule appellant’s eighth point of error.

B. The Punishment Charge

In point of error nine, appellant raises several complaints about the punishment jury charge. First, he claims that the punishment charge allowed for a nonunani-mous verdict because (1) the trial judge did not instruct the jurors that a hung jury would result in a life sentence; and (2) the statutorily mandated “12-10” instruction did not inform each juror that he could mandate a life sentence by refusing to reach a decision on the special issues. This Court has repeatedly rejected these claims,87 and appellant’s arguments do not persuade us to overrule our precedent.

Second, appellant asserts that the trial court erred in refusing to define the terms “probability,” “criminal acts of violence,” “militates,” and “continuing threat to society.” These terms are not statutorily defined; therefore, the jury should give *303them their commonly accepted meanings.88 These claims have been rejected by this Court in prior cases, and appellant does not persuade us that those precedents should be overruled.89

Third, appellant claims that the trial court erred by failing to instruct the jury “so as to limit the scope of militating evidence to that which a juror might regard as increasing the defendant’s moral blameworthiness.”90 The statutorily mandated language instructs the jury that it must consider “evidence of the defendant’s background or character or circumstances of the offense that militates for or mitigates against the imposition of the death penalty.”91 We have previously held that this instruction requires the jury to look at all of the evidence and not just evidence that a juror might find mitigating.92 Appellant argues that the charge failed to preclude the jury from “giving weight to factors beyond Appellant’s control”93 that might militate in favor of the death penalty. But appellant fails to explain what factors were both beyond his control and did not increase his moral culpability that the jury should have been prohibited from considering.94 Absent a showing of “some harm” by the use of the statutorily mandated language in the special issue, appellant’s claim must be rejected.95

Fourth, appellant claims that the trial judge erred by refusing to instruct the jury on a presumption in favor of a life sentence even if it answered “Yes” to the future dangerousness question. Appellant fails to cite to any such presumption in Texas law, and he cites no federal precedent that would require the giving of such an instruction. He cites Caldwell v. Mississippi, 96 but that case simply notes the “Eighth Amendment’s heightened ‘need for reliability in the determination that death is the appropriate punishment in a specific case.’ ”97 That heightened reliability is achieved by the Texas statutory scheme with its special issues and its mandatory instructions to the jury.98 The trial judge did not err in declining to instruct the jury on a non-existent, non-statutory presumption.

*304Having rejected all of appellant’s claims concerning the sufficiency of the punishment jury instructions, we overrule his ninth point of error.

The State’s Jury Argument

In his tenth point of error, appellant claims that the prosecutor misstated the law and told the jury that it could impose a death sentence based solely on the facts of the capital murder. In context, however, the State’s argument appears to have been proper. During closing argument, the prosecutor explained the process of deciding the two special issues:

And so how do you go about making this decision? How do you go maiding'— go about making and determining the answers to these Special Issues of whether or not this defendant is a future danger and whether or not this defendant deserves a life sentence or a death sentence?

We look at a few things here. First of all, you look at the crime. And, if you remember, we talked about that, that you can have a situation where a defendant commits such a heinous capital murder he can be sentenced to death based on those facts alone. So you look at the crime and then you look at the criminal. And you’ve got plenty of evidence before you....

Appellant objected that this was a misstatement of the law, and the trial judge overruled that objection. Later, the prosecutor argued:

So you look at that crime, and then you look at this criminal. And you heard a little bit from his sister about his background, and you heard a little bit about it from these people that he worked with about his background. And that’s stuff that you can consider for the second Special Issue.

Appellant acknowledges that this Court has repeatedly said that, if the circumstances of the case are sufficiently coldblooded or calculated, then those facts alone may support a finding of future dangerousness.99 The prosecutor’s argument concerning the facts of the crime being sufficient to support a finding of future dangerousness was a proper one, and he did not urge the jury to ignore the second special issue, the mitigation question. Instead, he told them to look first to the crime (the first special issue of future dangerousness) and then to the criminal (the second special issue concerning mitigation). Although it is possible to construe this argument as being improper when taken out of its full context, the prosecutor’s argument is more naturally interpreted as a permissible one.100 Even if it could be viewed as improper, it was not so manifestly improper to constitute reversible error.101

We overrule appellant’s tenth point of error.

Motion for New Trial Hearing

In his eleventh, and final, point of error, appellant claims that the trial court erred by failing to conduct a hearing on his motion for new trial. Appellant timely filed his motion and asserted facts *305that were not in the record.102 Appellant’s counsel also attached a “Certificate of Presentment” stating that a copy of his motion would be hand-delivered to the trial court. Unfortunately, there is no indication in the record that the motion for new trial was, in fact, hand-delivered to the trial judge. There is no indication in the record that the trial judge ever saw the motion, and it was overruled by operation of law.103 Furthermore, appellant never asked for a hearing on his motion for new trial.

A motion for new trial must be “presented” to the trial court within ten days of being filed.104 The defendant must put the trial judge on actual notice that he desires the judge to take some action, such as making a ruling or holding a hearing, on his motion for new trial.105 “Presentment” must be apparent from the record, and it may be shown by such proof as the judge’s signature or notation on the motion or proposed order, or an entry on the docket sheet showing presentment or setting a hearing date.106 There is nothing in the present record that demonstrates that appellant ever presented his motion personally to the trial judge, much less presented it in a timely manner. His certificate in which he indicated that he intended to present it does not suffice to show that he actually did do so or when he did so.

At oral argument, appellant’s counsel noted the difficulties of appearing in person in the various courts across the state to hand-deliver a motion for new trial to the trial judge and obtain documentary proof of that event. The Rules of Appellate Procedure do not require a personal visit, but they do require some documentary evidence or notation that the trial judge personally received a copy of the motion and could therefore decide whether to set a hearing or otherwise rule upon it.107 Thus, without any showing that the trial judge actually saw appellant’s motion for new trial, the judge cannot be faulted for failing to conduct a hearing on that motion.108

Further, appellant did not request a hearing on his motion for new trial. Although the motion contains a document titled “Order for a Setting,” that document does not suffice as a request to hold a *306hearing on the motion.109 As we recently-held, “a reviewing court does not reach the question of whether a trial court abused its discretion in failing to hold a hearing if no request for a hearing was presented to it.”110

Because appellant did not show that he timely presented his motion for new trial to the trial judge or that he requested a hearing on that motion, the trial judge did not abuse his discretion in failing to conduct a hearing on that motion.111 Appellant’s eleventh point of error is overruled.

Having found no reversible error, we affirm the judgment of the trial court.

KELLER, P.J., filed a concurring opinion in which MEYERS, J., joined.

KELLER, P.J.,

filed a concurring opinion in which MEYERS, J., joined.

A statement is a dying declaration if it is “made by a declarant while believing that his death is imminent, concerning the cause or circumstances of what he believed to be his impending death.”1 I find absolutely no evidence in this case that Tammy Gardner believed that her death was imminent when she identified appellant as her attacker.

As the Court acknowledges, the rule requires sufficient evidence to show that the declarant must have realized that he was at death’s door at the time he spoke. The Court relies primarily on Tammy’s injury to establish that she knew she was about to die. Let us review the evidence.

1. The Evidence

(1) The single bullet entered her right temple, went through her brain, and exited below her left ear. This was a mortal wound. The question, though, is whether Tammy knew that it was a mortal wound. The fact that she had been shot in the head and her injury ended up killing her does not demonstrate that she knew she was at death’s door at the time that she made the statement in question. While the nature of wounds can, in some cases, support a conclusion that a declar-ant knows she is dying, the facts in the cases cited by the Court are not comparable to the facts of this case. In those cases there was evidence that: the doctor told the victim she was going to die;2 the victim was set on fire and died the next morning;3 or the victim refused to identify his attacker until an officer asked him, “If you die do you want the person who did this to you to go free?”4 First, these are court of appeals opinions rather than opinions from our Court. Moreover, the objection in Wilks was not that the victim was unaware of her impending death but that the statement did not concern the circumstances of her death. And in my opinion the holding in that no-petition case is questionable anyway.

*307(2) Ms. Whitfield testified that Tammy’s voice was very slurred and hard to understand. This is not particularly strong evidence of the extent of the injury, and it is no evidence that Tammy was aware of her impending death. More to the point, the substance of what Tammy said to Ms. Whitfield reveals no awareness of impending death.

(3) Tammy kept repeating that her head hurt and that she could not hear very well “because her ears were ringing from the gunshots.” Contrary to the conclusion of the Court, I believe this shows — if anything — that she was unaware of the severity of her injuries. I think that these matters would seem insignificant to her if she were really aware of the fact that she was going to die. In any event, they are no evidence of the latter.

(4) She said that her husband had shot her, there was blood everywhere, and she needed an ambulance. Asking for medical assistance is evidence that she didn’t know she was dying.

(5) Before the phone disconnected, Ms. Whitfield heard what sounded like Tammy choking and vomiting. Tammy knew she was injured, but this offers no support for the contention that she knew she was dying. Moreover, the identification of appellant had already been made by then.

(6) When the first deputy arrived, he found Tammy on the blood-soaked bed, trying to sit up; she appeared to be in shock and was bleeding badly from both the back and top right of her head. This was twenty or thirty minutes after she called 911. The responding officer testified that Tammy was trying to sit up and wanted to get out of bed. He had to tell her repeatedly that she was bleeding badly and that she needed to lay back down. This is evidence that she did not know how severely she was injured. Also, even if she was aware at that time of the extent of her injuries, that would not be particularly relevant to what she thought when she identified appellant earlier on.

(7) There was a trail of blood leading into the bathroom, around the toilet, and in the trash can. This shows that she was able to go back and forth to the bed. And it appears that Tammy put the bloody tissues into the trash, as anyone would normally do if she were simply cleaning up an injury rather than contemplating her death.

(8) When the paramedics finally arrived, Tammy was “spitting up a lot of blood” and mumbling incomprehensibly. But the paramedic didn’t see Tammy until almost forty-five minutes after the 911 call, well after Tammy made the statement accusing appellant. Also, even forty-five minutes after she called 911, she “seemed to be very stable.”

(9) She was in a vegetative state and died at the hospital two days later. The fact that an injury is bad enough to eventually cause death cannot be sufficient to satisfy the dying-declaration requirements, or else the fact of death would swallow the consciousness-of-death requirement. And the fact that Tammy did not immediately die weighs against a conclusion that she knew she was dying. Finally, for all I can tell, had the ambulance not been delayed by going to the wrong house, Tammy might have survived her injuries. To whatever extent that is the case, it undercuts the Court’s reliance upon the severity of her injuries to find that her statement was a dying declaration.

2. The Standard of Review

The Court says that the trial judge has “great discretion in deciding whether a statement qualifies as a dying declaration.” The cases cited do not support this conten*308tion. The first case cited for the proposition is Montgomery v. State,5 but the entire discussion in Montgomery is about Rule 403. Moreover, the reason given in Montgomery for deferring to the trial court on Rule 403 decisions is that “The trial judge sees the witnesses, the defendant, the jurors and counsel; he alone is able to witness the participants’ mannerism and reactions.”6 But intonation and credibility are not issues when it comes to deciding whether a statement is a dying declaration. The dying declaration, however it is placed into evidence, does not reveal anything more to the trial court about the subjective belief of the declarant than it does to the appellate court.

The second case cited, Coffin v. State, 7 refers to Rule 804(b)(1), which concerns not dying declarations, but the use of former testimony. The remaining cases are the court of appeals opinions that I discussed above, and they do not appear to support the Court’s claim.8

3. Excited Utterance

I would resolve appellant’s claim on a different basis: The 911 call qualified as a nontestimonial excited utterance. An excited utterance is a “statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.” 9 There can be no doubt that Tammy’s statements during the 911 call were excited utterances. She had just been shot in the head, and she was relating to the 911 operator the events that led to the injury. In Davis v. Washington, the Supreme Court pointed out that “[a] 911 call ... and at least the initial interrogation conducted in connection with a 911 call, is ordinarily not designed primarily to ‘establish or prove’ some past fact, but to describe current circumstances requiring police assistance.” 10 I would hold that the 911 call constituted an “excited utterance” that was nontestimonial, and was admissible as a hearsay exception and under the Confrontation Clause.

I concur in the Court’s judgment.

OPINION

LIVINGSTON, Justice.

A jury found Samuel Wayne Chambers (“appellant”) guilty of aggravated assault with a deadly weapon and assessed punishment of twenty years’ imprisonment. In his sole point of error, appellant argues the trial court erred by refusing to admit into evidence a statement made by appellant to Officer Eddie Dale Neel of the Fort Worth Police Department. We overrule appellant’s sole point of error because the statement was hearsay and did not fall within any of the recognized hearsay exceptions.

On December 10, 1992, John Seipio (“Scipio”), the victim, was hanging out with some friends at a convenience store in Fort Worth. Seipio urinated on the side of the building. As Seipio was returning to his car, appellant approached him, spoke with him briefly, and then walked to his car to put a sack down. After appellant put the sack down, he walked back to Seipio and spoke to him again. Appellant then walked to his car, pulled a gun from the trunk, walked toward Seipio, and shot him. The bullet hit Seipio in the chest, damaging his heart and severing his spinal cord.

Appellant did not testify at trial, but he sought to introduce a written statement he made to police on January 29, 1993. Appellant wanted to introduce the statement as evidence of his state of mind at the time of the shooting to show he believed he was *330acting in self-defense. The State argued the evidence was inadmissible hearsay, and the trial court excluded the written statement.

Rule 801 of the Texas Rules of Criminal Evidence governs hearsay:

(a) Statement. A “statement” is (1) an oral or written verbal expression or (2) nonverbal conduct of a person, if it is intended by him as a substitute for verbal expression.

(b) Declarant. A “declarant” is a person who makes a statement.

(c) Matter Asserted. “Matter asserted” includes any matter explicitly asserted, and any matter implied by a statement, if the probative value of the statement as offered flows from declarant’s belief as to the matter.

(d) Hearsay. “Hearsay” is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.

Tex.R.Crim.Evid. 801. The exhibit appellant sought to introduce was a written statement he made outside of the trial offered to prove the truth of the matter asserted — that appellant thought he was acting in self-defense. Thus, appellant’s written statement was hearsay, and therefore inadmissible unless it falls within one of the recognized exceptions to the hearsay rule. See Tex.R.Crim.Evid. 802.

Appellant argues the statement is admissible as “[a] statement of the declarant’s then existing state of mind, emotion, sensation, or physical condition.” Tex.R.Crim.Evid. 803(3). This hearsay exception allows statements regarding intent, plan, motive, design, mental feeling, pain, or bodily health to be admitted, but it does not include “a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant’s will.” Id.; Gibbs v. State, 819 S.W.2d 821, 837 (Tex.Crim.App.1991), cert. denied, 502 U.S. 1107, 112 S.Ct. 1205, 117 L.Ed.2d 444 (1992). Appellant’s statement that he believed the victim may have had a weapon at the time of the assault is nothing more than a statement of “memory or belief to prove the fact remembered or believed,” and therefore, the statement does not fall within the Rule 803(3) exception. See Gibbs, 819 S.W.2d at 837.

Appellant also argues that his statement was admissible as a present sense impression. “A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter” is not excluded by the hearsay rule. Tex.R.Crim.Evid. 803(1). The rationale for this exception to the hearsay rule is that the contemporaneous nature of the statement makes it reliable because there is little time for the declarant to suffer defect of memory or to calculate misstatements. Rabbani v. State, 847 S.W.2d 555, 560 (Tex.Crim.App.), cert. denied, — U.S. -, 113 S.Ct. 3047, 125 L.Ed.2d 731 (1992); Kubin v. State, 868 S.W.2d 394, 396-97 (Tex.App.—Houston [1st Dist.] 1993, pet. ref'd). Thus when a declar-ant has had time to reflect upon the events, the conditions observed, and the facts learned after the event, the reliability of the statement is diminished because the statement is no longer contemporaneous. See Beauchamp v. State, 870 S.W.2d 649, 652 (Tex.App.—El Paso 1994, pet. ref'd). The event in question occurred on December 10, 1992, but appellant did not make the statement in question until January 29, 1993. Therefore, the statement was not contemporaneous with the event and not admissible as a present sense impression.

We believe the State’s characterization of appellant’s statement as self-serving hearsay is correct. The Texas Court of Criminal Appeals has instructed that self-serving statements of the accused are generally inadmissible at trial on his behalf. Allridge v. State, 762 S.W.2d 146, 152 (Tex.Crim.App.1988), cert. denied, 489 U.S. 1040, 109 S.Ct. 1176, 103 L.Ed.2d 238 (1989); Singletary v. State, 509 S.W.2d 572, 576 (Tex.Crim.App.1974). Because the statement was made over a month after the assault occurred, no part of the statement was introduced by the State, and appellant did not testify at trial, appellant’s self-serving statement did not fall within any of the exceptions to the ban on self-serving statements. See *331 Allridge, 762 S.W.2d at 152-53; Singletary, 509 S.W.2d at 576-77; Starks v. State, 776 S.W.2d 808, 811 (Tex.App.—Fort Worth 1989, pet. ref'd). Accordingly, appellant’s sole point of error is overruled, and the judgment of the trial court is affirmed.

OPINION

COCHRAN, J.,

delivered the opinion of the Court

in which PRICE, WOMACK, JOHNSON, and HOLCOMB, JJ., joined.

This case presents a novel question in Texas evidentiary law: Are a law enforcement officer’s factual observations of a DWI suspect, contemporaneously dictated on his patrol-car videotape, admissible as a present sense impression exception to the hearsay rule under Tex.R. Evid. 803(1)?1 They are not. An officer may testify in the courtroom to what he saw, did, heard, smelled, and felt at the scene, but he cannot substitute or augment his in-court testimony with an out-of-court oral narrative. This calculated narrative in an adversarial setting was a “speaking offense report.” It was not the type of unreflective, street-corner statement that the present sense impression exception to the hearsay rule is designed to allow. We therefore agree with the Fourteenth Court of Appeals, which had held the same.2

I.

At about 1:40 a.m. on May 29, 2004, DPS Trooper Martinez turned on his dashboard-mounted video camera and announced, on tape, that he was pulling over a driver who wasn’t wearing a seatbelt. After the driver, appellant, parked his truck in his apartment complex parking *377lot, Trooper Martinez approached appellant and began questioning him. All of that questioning was recorded through Trooper Martinez’s body microphone and captured on camera.

Trooper Martinez asked for appellant’s driver’s license and insurance; appellant responded that he had just moved. The trooper then asked appellant whether he had “any alcohol in the car,” and quickly added, “I smell alcohol.” Trooper Martinez then asked appellant, “How much alcohol have you had this evening?” And appellant replied, “Three wines.” Trooper Martinez told appellant to stay where he was, and the trooper walked back to his patrol car and dictated into his microphone that appellant had “glassy, bloodshot eyes” and “slurred speech.” The trooper stated that he had smelled “the strong odor of alcoholic beverage.”

Trooper Martinez then walked back to appellant and asked him if there was any reason why he was not wearing a seatbelt. Appellant said that he was “depressed” over his recent divorce. Trooper Martinez asked appellant if he had any weapons or drugs. Appellant said “No,” but Trooper Martinez opened the driver’s door of appellant’s truck and got inside to make a cursory search. Finding nothing, the trooper got back out and told appellant, “I’m going to conduct a small exam of your eyes.” He directed appellant to stand outside the range of the video camera and administered a horizontal gaze nystagmus (HGN) test.

After the HGN test was completed, Trooper Martinez again left appellant and returned to his patrol car and recorded the following observations:

Subject has equal pupil size, equal tracking, has a lack of smooth pursuit in both eyes, and has distinct nystagmus at maximum deviation in both eyes. Subject also has onset of nystagmus prior to forty-five degrees in both eyes.

Trooper Martinez also dictated into his microphone: (1) he stated that he had seen a “wine opener” in appellant’s truck; (2) he repeated that there was a strong odor of alcohol on appellant’s breath; and (3) he again noted that appellant had glassy, bloodshot eyes and “slurred speech.”

The trooper then told appellant to stand in front of the patrol car and asked him to perform field sobriety tests. After appellant performed the heel-to-toe test, Trooper Martinez again told appellant to “stay right here,” while he returned to his patrol car and dictated on tape that “subject gave several clues,” including the fact that appellant had started too soon, lost his balance while being given instructions, failed to touch his heel to his toe, “stepped off the line two times,” made an “improper turn,” and used his hands for balance.

Trooper Martinez returned to where appellant was standing and told him to perform a “one-leg stand” test. After that test was completed, the trooper told appellant to remain where he was, and the trooper once again returned to his patrol car where he verbally recorded that appellant “gave several clues” to intoxication and noted that appellant swayed, hopped, and put his foot down twice. Trooper Martinez recorded that he had given appellant “a second chance to do it,” but appellant “indicated the same clues.” Trooper Martinez then dictated: “Subject is going to be placed under arrest for DWI.” The videotape then shows Trooper Martinez returning to appellant, saying, “I believe you are drunk,” and arresting him.

After appellant was charged with DWI, he filed a motion to suppress the audio portion of the patrol-car videotape, claiming that it contained Trooper Martinez’s “bolstering, self-serving statements about what he was allegedly doing and seeing.” It was “a highly prejudicial and inflammatory narrative” of what Trooper Martinez *378would have the viewer believe was taking place. The trial judge denied appellant’s motion and concluded that the audio narrative was admissible as a “present sense impression.”3 Appellant then pled nolo contendere and appealed the trial court’s ruling on his motion to suppress Trooper Martinez’s orally recorded factual observations during his DWI investigation.

The court of appeals concluded that the trial court had erred. It held that Trooper Martinez’s recorded commentary did not qualify as a present sense impression: Put bluntly, “Martinez’s narrative is the functional equivalent of a police offense report[.]”5

Instead, his comments are a calculated narrative statement in which Martinez does not merely explain or describe events, but participates in and even creates some of the events he reports in the course of collecting evidence.... It therefore appears that Martinez recorded his comments not as an objective observer, but as a law enforcement officer, as a lay witness, and as an expert witness cataloging evidence and opinions for use in [appellant’s] prosecution.4

We granted the State’s petition for review to decide this important issue of state evidentiary law which, we understand, has arisen in several other cases as well.6

II.

The hearsay doctrine, codified in Rules 801 and 802 of the Texas Rules of Evidence, is designed to exclude out-of-court statements offered for the truth of the matter asserted that pose any of the four “hearsay dangers” of faulty perception, faulty memory, accidental miscommunication, or insincerity.7 The numerous exceptions to the hearsay rule set out in Rules 803 and 8048 are based upon the rationale that some hearsay statements contain such strong independent, circumstantial guarantees of trustworthiness that the risk of the four hearsay dangers is minimal while the probative value of such evidence is high.9 *379The twenty-four hearsay exceptions listed in Texas Rule 803 may be roughly categorized into (1) unreflective statements, (2) reliable documents, and (3) reputation evidence. The rationale for all of the exceptions is that, over time, experience has shown that these types of statements are generally reliable and trustworthy.

The first set of hearsay exceptions, unreflective statements, are “street corner” utterances made by ordinary people before any thoughts of litigation have crystallized.10 These unreflective statements used to be called “res gestae,” an imprecise Latin legalese term,11 because the speaker was not thinking about the legal consequences of his statements. In most instances, the speaker was not thinking at all; the statement was made without any reflection, thought process, or motive to fabricate or exaggerate.12

*380One of those “unreflective statements” exceptions to the hearsay rule is defined in Rule 803(1), the present sense impression:

A statement describing or explaining an event or condition made while the de-clarant was perceiving the event or condition, or immediately thereafter.13

Statements that qualify under this exception are not excluded by the hearsay rule, even though the declarant is available.14

Texas was the first jurisdiction to recognize this exception by name,15 and its leading case, Houston Oxygen Co. v. Davis,16 is cited in the advisory committee’s note to Federal Rule 803(1).17 The facts in that case are typical of those that support the exception. At trial, the passenger of a car going down the highway testified that he saw another car pass theirs going “sixty to sixty-five miles” an hour and that it was “bouncing up and down in the back and zig zagging.”18 The passenger then testified that the driver of the car turned to him and said that “they must have been drunk, that we would find them somewhere on the road wrecked if they kept that rate of speed up.”19 Sure enough, five miles down the road the speeding car hit another vehicle and caused the plaintiffs injuries. The Texas Supreme Court held that the passenger’s recitation of what the driver said to him at the time the speeding car passed them was admissible as a present sense impression because “[i]t is sufficiently spontaneous to save it from the suspicion of being manufactured evidence. There was no time for a calculated statement.” 20

The rationale for the exception is that the contemporaneity of the statement with the event that it describes eliminates all danger of faulty memory and virtually all danger of insincerity. This Court has previously explained that rationale:

If a person observes some situation or happening which is not at all startling or shocking in its nature, nor actually producing excitement in the observer, the observer may yet have occasion to comment on what he sees (or learns from other senses) at the very time that he is receiving the impression. Such a comment, as to a situation then before the declarant, does not have the safeguard of impulse, emotion, or excitement, but there are other safeguards. In the first place, the report at the moment of the thing then seen, heard, etc., is safe from any error from defect of memory of the declarant. Secondly, there is little or no time for calculated misstatement, and thirdly, the statement will usually be made to another (the witness who reports it) who would have equal opportunities to observe and hence to check a misstatement. Consequently, it is believed that such comments, strictly limited to reports of present sense-impressions, have such exceptional reliability as to warrant their inclusion within the hearsay exception for Spontaneous Declarations.21

*381The rule is predicated on the notion that “the utterance is a reflex product of immediate sensual impressions, unaided by retrospective mental processes.”22 It is “instinctive, rather than deliberate.”23 If the declarant has had time to reflect upon the event and the conditions he observed, this lack of contemporaneity diminishes the reliability of the statements and renders them inadmissible under the rule.24

Once reflective narratives, calculated statements, deliberate opinions, conclusions, or conscious “thinking-it-through” statements enter the picture, the present sense impression exception no longer allows their admission.25 “Thinking about it” destroys the unreflective nature required of a present sense impression.26

The State’s first ground for review claims that the court of appeals in this case held that Rule 803(8)(B), which ex*382plicitly excludes investigative reports by law enforcement from the public records exception to the hearsay rule, “trumps” Rule 803(1) and disallows any out-of-court factual observations by police officers. The court of appeals did not say this. Of course police officers, like the rest of humanity, may make spontaneous, unre-flective, contemporaneous present sense impression statements that qualify for admission under Rule 803(1).27 But the court of appeals appropriately looked to the rationale for excluding law enforcement reports under Rule 803(8)(B) by analogy.

Both the federal and Texas hearsay rules have always excluded the crime-scene or investigation observations of law enforcement officers because their factual observations, opinions, and narrations are made while the officer is “engaged in the often competitive enterprise of ferreting out crime.”28 Rule 803(8)(B) expressly excludes “[rjecords, reports, statements, or data compilations ... setting forth ... matters observed by police officers and other law enforcement personnel” in a criminal case.29 The reason for this exclu*383sion is the inherently adversarial nature of any on-the-scene or post hoc investigation of a criminal suspect.30 Congress explained the rationale for the rule excluding factual observations by investigating police officers from the public records exception to the hearsay rule:

Ostensibly, the reason for this exclusion is that observations by police officers at the scene of the crime or the apprehension of the defendant are not as rehable as observations by public officials in other cases because of the adversarial nature of the confrontation between the police and the defendant in criminal cases.31

Although Rule 803(8)(B) does not “trump” Rule 803(1), the basis for exclusion of police reports and investigative recordings is exactly the same under both rules. The recorded factual observations made by police officers investigating a suspected crime are not the type of “non-reflective” street-corner statements of objective observers that the present sense impression exception is designed to allow.32 Courts admit present sense impression statements precisely because they are non-narrative, off-hand comments made without any thought of potential litigation by a neutral and detached observer without any motive to fabricate, falsify, or otherwise exaggerate his observations.33

*384Conversely, on-the-scene observations and narrations of a police officer conducting a roadside investigation into a suspected DWI offense are fraught with the thought of a future prosecution: the police officer is gathering evidence to use in deciding whether to arrest and charge someone with a crime.34 Calculation and criminal litigation shimmer in the air; the officer is gathering evidence, he is not making an off-hand, non-reflective observation about the world as it passes by.35 Similarly, factual observations, narrations, opinions, and conclusions made by a citizen or bystander that might be intended by the declarant to be made with an eye toward future litigation or evidentiary use are inadmissible under the rule.36

III.

In this case, Trooper Martinez turned on his patrol-car video camera and microphone even before he detained appellant. He did this to accurately record his investigation and preserve that interaction for possible trial.37 He continuously re*385ferred to appellant as “the Subject” — the subject of his investigation. He made four separate trips back to his patrol car for the specific purposes of narrating what he had seen, smelled, and heard during his investigatory stop. He offered his opinions and conclusions about what his investigation of appellant had revealed. He narrated his impressions of how appellant had performed on various investigatory field tests and then announced his conclusion: “Subject is going to be placed under arrest for DWI.” The entire tape-recorded narrative is, as the court of appeals concluded, a speaking offense report.38

Throughout this incident, Trooper Martinez was professionally and politely “engaged in the competitive enterprise of ferreting out crime.”39 One applauds him for that worthy endeavor, but the adversarial nature of this on-the-scene investigation of a potential crime is entirely at odds with the unreflective, instinctive comments of a “street-corner” speaker who was not thinking about the legal consequences of his statements.

The State argues that “[hjearsay may be admissible under one hearsay exception even if it is inadmissible under another hearsay exception.”40 That is correct, just as Justice Yates concluded in her concurring opinion in this case.41 Here, however, the rationale for excluding Trooper Martinez’s recorded oral narrative of his on-the-scene investigation as a present sense impression under Rule 803(1) is precisely the same as the rationale for excluding that evidence under Rule 803(8)(B): the presumed unreliability of law enforcement observations in an adversarial, investigative setting. Thus, Rule 803(1) cannot be used “as a ‘back door’ to admit evidence explicitly inadmissible under Rule 803(8)(B).” 42

The State relies upon several out-of-state cases for the proposition that law enforcement narrative observations may be admissible under the present sense impression exception to the hearsay rule.

In one case, Utah v. Blubaugh, 43 the appellate court held that a video recording of the murder defendant’s “messy home” was irrelevant and inadmissible, but harmless error, while the officer’s audio description of that “messy home” was not objected-to at trial. In dicta, the reviewing court suggested that it was admissible as a present sense impression.44 These might appear to be contradictory holdings, but the Utah court did not elaborate on its reasoning in the one-paragraph discussion. Nor does it appear that the aural recording was anything more than a description of the defendant’s home. In any event, we agree with the Houston Court of Appeals that the issue of the admissibility of a recording of the factual observations of a law enforcement agent made during an adversarial investigation was not raised in that case.45

*386The State also cites United States v. Rideout,46 a vacated and unpublished opinion from the Fourth Circuit in which the appellate court noted that the defendant’s “blanket objection” to the audio portion of a videotaped recording showing a drug-infested neighborhood (described as “an open air crack market”) did not preserve any error in its admission.47 But the officer in Rideout was not focused upon the investigation of any particular person. Apparently, the videotape was simply a visual and audio recording of the appearance of a neighborhood, much like a TV newscast showing and describing the destruction of a hurricane. As with Blu-baugh, we conclude that the question of whether a police office’s narrative descriptions of his factual observations in an adversarial investigation was neither present nor raised in Rideout.

The State relies upon Ohio v. Penland, 48 a case that appropriately concluded that a radioed recording by an officer in hot pursuit of a fleeing suspect was admissible as a present sense impression.49 The court stated that the officer

while pursuing the appellant, transmitted over his radio a description of the appellant, the appellant’s possession and disposal of the gun, and his apprehension. Each of the taped statements from that radio transmission described an event or condition perceived by the officer, either as he perceived it or immediately thereafter. The circumstances surrounding the officer’s transmission of the statements, especially the perilous nature of the officer’s pursuit of the appellant, supply sufficient indicia of the statements’ trustworthiness.50

This scenario — the description of a chase while it is occurring, transmitted to his dispatcher — is precisely the sort of unre-flective, uncalculated, non-testimonial “street corner” statement that is admissible under Rule 803(1), even when made by a law enforcement officer.51 Trooper Martinez, unlike the pursuing officer in Pen-land, calmly walked back and forth from his patrol car to the suspect, and he carefully and deliberately narrated the results of his DWI field tests and investigation. Trooper Martinez’s recorded statements are “testimonial” and reflective in nature; they are the type of statements that are made for evidentiary use in a future criminal proceeding.52

In sum, most of the statements made by Trooper Martinez on the videotape constituted a calculated narrative in an adversarial, investigative setting.53 These particular statements may be entirely reliable ones, but the setting is one that human experience and the law recognizes is brimming with the potential for exaggeration or misstatement.

*387We therefore agree with the court of appeals which had held that Trooper Martinez’s recorded investigation narrative did not qualify for admission as a present sense impression under Rule 803(1). At trial, Trooper Martinez may testify to exactly what he saw and heard during his investigative detention of appellant, and his words might be the very same as those he used during his on-the-scene narrative, but they must be given under oath and subject to cross-examination.

We affirm the judgment of the court of appeals.

HERVEY, J., filed a dissenting opinion in which KELLER, P.J., MEYERS, and KEASLER, JJ., joined.

HERVEY, J.,

filed a dissenting opinion in which KELLER, P.J., MEYERS, and KEASLER, JJ., joined.

The State claims that the court of appeals erroneously decided that Rule 803(8)(B) “trumps” Rule 803(1). The Court decides that Rule 803(8)(B) does not “trump” Rule 803(1)1 and also states that the court of appeals did not say this.2 The court of appeals and this Court have, however, essentially decided that Rule 803(8)(B) “trumps” Rule 803(1).

The following hypothetical illustrates how the Court’s opinion does, in fact, decide that Rule 803(8)(B) “trumps” Rule 803(1). Suppose that a police officer and a private citizen come upon the scene of a traffic accident involving two cars. The police officer and the private citizen walk to one of the wrecked cars and observe an open container of alcohol inside. It takes the police officer and the private citizen a few seconds to walk over to another bystander at the accident scene. Having had the opportunity of “thinking about it” during this brief period of time, the police officer and the private citizen immediately state to the bystander that they observed an open container of alcohol inside one of the wrecked cars. Even though the police officer’s and the private citizen’s out-of-court declarations to the bystander were based on their observations of the same event at the same time and were made under identical circumstances, the Court’s opinion apparently would allow the private citizen’s out-of-court declaration to be admitted as a present sense impression,3 but would exclude the police officer’s out-of-court declaration as a “speaking offense report.”4 By admitting the former while excluding the latter, the Court’s opinion really does decide that Rule 803(8)(B) “trumps” Rule 803(1).5

*388I disagree with the Court that, in analyzing whether Martinez’s out-of-court statements qualify as present sense impressions, it is appropriate to look “to the rationale for excluding law enforcement reports under Rule 803(8)(B) by analogy.” 6 This case would present a “speaking offense report”7 scenario under Rule 803(8)(B) had Martinez, in accordance with how offense reports are usually prepared, dictated his on-the-scene observations as part of an offense report some time after the events in question after having had the opportunity of “[tjhinking about it.” But, that is not what occurred here. The brief period of time (a few seconds) between Martinez’s observation of the events and his description of them on the audiotape provided him with very little opportunity of “[t]hinking about it” and does not present a setting “brimming with the potential for exaggeration or misstatement.”8 And, though Martinez may have been “engaged in the competitive enterprise of ferreting out crime,”9 this short time interval provided little or no time for calculated misstatement 10 and it still eliminated the four “hearsay dangers” of faulty perception, faulty memory, accidental miscommunication, or insincerity.11 The contemporaneity and “immediately thereafter” requirements of Rule 803(1) remove any analogy between cases like this and Rule 803(8)(B).12

The admissibility of the statements at issue in this case should be analyzed under the usual factors for determining whether statements qualify as present sense impressions under Rule 803(1).13 Two essential elements of the present sense impres*389sion exception to the hearsay rule are: (1) substantial contemporaneity between the out-of-court statements and the event or condition they describe, and (2) spontaneity of these out-of-court statements.14 As to the substantial contemporaneity requirement, commentary to Federal Rule 803 states:

Rule 803(1) adopts the increasingly accepted new hearsay exception for statements describing or explaining an event or condition made while the declarant was perceiving the event or condition or immediately thereafter. The theory underlying Rule 803(1), according to the Advisory Committee Note, is that “substantial contemporaneity of event and statement negative the likelihood of deliberate or conscious misrepresentation.” The critical element, therefore, is contemporaneity; the statement must be made at the time that the event or condition is being perceived or immediately thereafter. If the statement is made right at the time of the event, it is assumed that the declarant had no time to lie about it; and there is little chance of misstatement due to loss of memory. While contemporaneity is critical to admissibility, there is in fact no talismanic time period for admission as a present sense impression. Admissibility is determined on a case-by-case basis, in which the Court investigates the circumstances of the statement to determine whether the declarant had significant time for reflection^15]

And, in Illinois Central R.R. Co. v. Lowery, 184 Ala. 443, 63 So. 952, 953 (1913), the Alabama Supreme Court described the spontaneity requirement as follows:

The mere fact that a declaration is contemporaneous with the transaction in issue, and even relates to and is prompted by it in a general way, does not render it admissible in evidence. Such a declaration, to have testimonial verity and value, and hence to be admissible by way of exception to the rule that excludes hearsay in general, must directly relate to and in some degree illustrate and explain the occurrence in question; and essentially, it must be the apparently spontaneous product of that occurrence operating upon the visual, auditory, or other perceptive senses of the speaker. The declaration must be instinctive rather than deliberative — in short, the reflex product of immediate sensual impressions, unaided by retrospective mental action. These are the indicia of verity which the law accepts as a substitute for the usual requirements of an oath and opportunity for cross-examination.

(Emphasis supplied).16

*390Martinez’s out-of-court factual assertions satisfy the contemporaneity requirement because they describe or explain events, which Martinez (the declarant) was observing at the time that he made the out-of-court statements or immediately thereafter. See Hallums, 841 A.2d at 1277 (“underlying rationale for the present sense impression exception is that ‘[statements of present sense impression are considered reliable because the immediacy eliminates the concern for lack of memory and precludes time for intentional deception’ ”). Martinez’s out-of-court factual assertions also satisfy the spontaneity requirement because they are “instinctive rather than deliberative-in short, the reflex product of immediate sensual impressions, unaided by retrospective mental action.” See Lowery, 63 So. at 953;17 Waltz, supra at 876 (spontaneity is an inference drawn from the required absence of any appreciable time lapse between event or condition and descriptive comment); 46 Co-lum.L.Rev. at 439 (spontaneity requirement usually satisfied when contemporaneity requirement is satisfied).

There are in this particular case other reliability-insuring safeguards that may be absent in other present sense impression cases. For example, Martinez’s out-of-court factual assertions apparently would have been elicited (not through a third-party witness) but through Martinez himself, who would have been subject to cross-examination on these statements.18 In addition, Martinez’s out-of-court factual assertions were captured on the audiotape and, therefore, would not be elicited at trial based only on his memory of the events. One of the most important reliability-insuring safeguards in this case is the videotape itself, which corroborates most of Martinez’s out-of-court statements *391on the audio portion of this videotape.19 Applying these considerations to this case, the trial court could not have abused its discretion to decide that Martinez’s out-of-court factual assertions qualify as present sense impressions.20

The Court’s opinion also seems to suggest that Martinez’s out-of-court statements cannot qualify as present sense impressions because they are “testimonial” for purposes of federal constitutional Confrontation Clause analysis under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).21 It is not clear that Martinez’s out-of-court statements are “testimonial.” Even if they are, this Court has held that an out-of-court statement qualifying as an excited utterance under Rule 803(2) can also be “testimonial.” See generally Wall v. State, 184 S.W.3d 730 (Tex.Cr.App.2006). The Court’s opinion characterizes a present sense impression under Rule 803(1) and an excited utterance under Rule 803(2) as unreflective statements. See Maj. Op. at 379. If, under Wall, an excited utterance can be “testimonial,” then so can a present sense impression. It is also noteworthy that Martinez’s out-of-court factual assertions would be admissible at trial under Crawford, as long as Martinez was available for cross-examination.

Finally, the “[tjhinking about it” rationale in the Court’s opinion does not apply to all of Martinez’s out-of-court statements such as his out-of-court statement, “I smell alcohol,” when Martinez asked appellant if he had any alcohol in the car.22 In addition, the Court’s opinion seems to suggest that the entire audiotape is inadmissible, when both appellant and the court of appeals have acknowledged that some portions of the audiotape “would be admissible.” See Fischer, 207 S.W.3d at 850. For example, appellant’s statement to Martinez that he had “Three Wines” should not be excluded by anything that the Court’s opinion says.

I respectfully dissent.

OPINION

HOLCOMB, J.,

delivered the opinion of the Court,

in which KELLER, P.J., and MEYERS, PRICE, WOMACK, JOHNSON, KEASLER, and COCHRAN, JJ., joined.

Appellant was found guilty of murdering a police officer and sentenced to death. See Tex. Pen.Code § 19.03(a)(1). On direct appeal to this Court, he raises seven points of error. We affirm the judgment of the trial court.

In his first point of error, appellant argues the trial court abused its discretion when it overruled his objection to the prosecutor’s comment on his right to remain silent, in violation of his right under the Fifth Amendment to the United States Constitution. Appellant points to the following exchange during the prosecutor’s opening statement at the guilt/innoeence phase:

[Prosecutor]: Does that stop him? No. He goes back inside. This time he retrieves an assault weapon. And he will tell you he did that in his statement. And he will tell you that he went back outside to shoot again with that assault weapon. But he’s not going to tell you something very important in that state*924ment, but we are going to prove it to you and the evidence is going to show you—

[Defense counsel]: Excuse me. That’s a comment on the right of the defendant to remain silent, and I object to that.

The Court: Overruled.

Appellant claims the prosecutor’s comments faulted him for exercising his right to remain silent “during the time his statement [was] taken” by focusing the jury’s attention on the fact that he failed to mention in his statement that he shot the victim a second time with a high velocity rifle.

The record reflects that appellant waived his post-arrest right to silence when he agreed to give a written statement to police after being warned of his constitutional rights. Appellant does not claim his waiver was involuntary. Thus, appellant’s complaint about his right to remain silent “during the time his statement was made” is nonsensical. Moreover, when a defendant makes a statement which is admitted into evidence, the State’s reference to the statement and comparison between the statement and the other evidence collected is not a comment on the defendant’s failure to testify or his right to remain silent. In Lopez v. State, 170 Tex.Crim. 208, 339 S.W.2d 906, 910 (App.1960), for example, the defendant complained that the prosecutor made a reference during opening argument to the defendant’s failure to testify when the prosecutor stated, “Now this defendant has not told you all that happened on top of that hill, we know that....” The prosecutor made the comment while reviewing the contents of the defendant’s written statement, which was in evidence before the jury. We held that the prosecutor was clearly referring to the defendant’s written statement, which was in evidence, and not to his failure to testify. Id. at 910-11.

We discern no abuse of discretion on the part of the trial court in overruling appellant’s objection to the prosecutor’s comments. Point of error one is overruled.

In point of error two, appellant claims the trial court abused its discretion when it overruled his objection to the prosecutor’s comment on his right to remain silent. Appellant points to the following statement by the prosecutor during closing argument at the guili/innocence phase: “[Appellant’s] relatives call in and say ‘Frankie is killing everybody — Frankie is killing everybody.’ And you notice I predicted, and I’m right — no reaction, no conscience, no regret.” Appellant argues that the reference to his lack of remorse was a comment on his failure to testify.

A comment by the prosecutor on a defendant’s failure to show remorse can sometimes be a comment on his failure to testify. However, when such prosecutorial comments are supported by testimony presented to the jury during the trial, they are considered a proper summation of the evidence. Davis v. State, 782 S.W.2d 211, 222-223 (Tex.Crim.App.1989), cert. denied, 495 U.S. 940, 110 S.Ct. 2193, 109 L.Ed.2d 520 (1990); see also Caldwell v. State, 818 S.W.2d 790, 800 (Tex.Crim.App.1991)(hold-ing comment on defendant’s lack of remorse was proper argument in light of evidence from various sources supporting it), cert. denied, 503 U.S. 990, 112 S.Ct. 1684, 118 L.Ed.2d 399 (1992), overruled on other grounds, Castillo v. State, 913 S.W.2d 529, 534 (Tex.Crim.App.1995).

The evidence adduced at trial showed that appellant, after shooting Jessica Garcia (his wife) and the police officer who was called to the scene, ran out of his home shooting at the relatives who had come to help Jessica move out. He pursued one man and shot him in the leg. In *925his written statement, appellant stated that he continued firing until he ran out of ammunition. Appellant returned to the house, retrieved another gun and fired at the downed officer again, this time in the head. An officer who arrived on the scene described appellant as “cocky” when arrested. Another officer who took appellant’s statement testified that he was “very calm, very matter-of-fact” during his interview. The officer further described appellant’s attitude as “very nonchalant, very laid back and calm ... There were several things that had a tone of arrogance to it.” In light of the evidence of appellant’s lack of conscience and remorse, we discern no abuse of discretion on the part of the trial court in overruling appellant’s objection to the prosecutor’s statements. Point of error two is overruled.

In point of error three, appellant claims the trial court abused its discretion in failing to instruct the jury to disregard the prosecutor’s attack on the personal morals and trustworthiness of defense counsel. Appellant complains of the following statement made by the prosecutor during summation at the guilt/innocence phase:

And [defense counsel is] going to come here, and he’s going to put himself before twelve citizens of this community and he’s going to argue that hogwash that you’ve heard.

Appellant’s objection was sustained, but the trial court denied his request to instruct the jury to disregard the prosecutor’s comment.

The prosecutor’s comment was plainly directed at defense counsel’s theories and arguments in the case. By telling the jury that defense counsel’s arguments were “hogwash,” i.e., nonsense, the prosecutor was merely stating, in colorful language, his opinion regarding the merits of defense counsel’s arguments. See Penry v. State, 903 S.W.2d 715, 756 (Tex.Crim.App.)(stat-ing that prosecutor may argue his opinions about the case so long as his opinions are based on evidence), cert. denied, 516 U.S. 977, 116 S.Ct. 480, 133 L.Ed.2d 408 (1995). Such argument does not warrant a reversal for attacking the personal morals and integrity of defense counsel. Point of error three is overruled.

In point of error four, appellant claims the trial court erred, at the punishment phase, when it admitted inadmissible “hearsay within hearsay” evidence to the effect that he assaulted his wife on December 15, 1994.1 At the punishment phase, the State offered business records from the Bexar County Battered Women’s Shelter through its custodian of records, Joyce Coleman, and the trial court admitted *926those records under Rule of Evidence 803(6), the business records exception to the hearsay rule. Coleman testified that the records were kept in the regular course of business and were created by an employee of the shelter. The records reflect that, on December 16, 1994, appellant’s wife reported to the employee that she had been physically and psychologically abused by appellant. Appellant’s claim is correct. Jessica Garcia’s out-of-court statements to an employee at the Battered Women’s Shelter did not lose them hearsay status simply because the employee had a business duty to accurately record what she said. Rule of Evidence 803(6) provides that “records of regularly conducted activity” may be admitted as an exception to the hearsay rule, even if the declarant is available to testify. Such records include:

A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qual-ifled witness, or by affidavit that complies with Rule 902(10), unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. ‘Business’ as used in this paragraph includes any and every kind of regular organized activity whether conducted for profit or not.

Coleman testified that she was the legal custodian of the business records in question, that the records were kept in the regular course of business, and that the information contained in the records was recorded by an employee of the shelter at or near the time of the stated events.

The State laid a proper foundation for admission of the shelter’s business records under Rule 803(6). The records themselves were admissible, but that does not mean that all information, from whatever source or of whatever reliability, contained within those business records is necessarily admissible.2 When a business receives information from a person who is outside the business and who has no business duty to report or to report accurately, those statements are not covered by the business records exception.3 Those state*927ments must independently qualify for admission under their own hearsay exception — such as statements made for medical diagnosis or treatment,4 statements concerning a present sense impression,5 an excited utterance,6 or an admission by a party opponent.7

The State argues that Jessica’s oral statements concerning appellant’s physical and psychological abuse made to the shelter employee were themselves admissible under Rule 803(4) as statements made for purposes of medical diagnosis or treatment. But they were not. There is no evidence that Jessica Garcia went to the shelter to seek medical treatment, nor is there any evidence that the shelter provided either medical diagnosis or treatment. The State points to testimony that the shelter will provide assistance to any battered woman who asks for help and will supply medical attention, including mental health treatment. Indeed, that may be true, but there is still no evidence that Jessica was specifically seeking medical treatment when she spoke to the shelter employee.8 Thus, we conclude that the trial court erred in admitting Jessica’s out-of-court oral statements that were transcribed into the otherwise admissible business records of the Bexar County Battered Women’s Shelter.

Having determined that the trial court erred in admitting these statements, we must determine next whether the error requires reversal. Texas Rule of Appellate Procedure 44.2(b) provides that an appellate court must disregard a non-constitutional error that does not affect a criminal defendant’s “substantial rights.” Under that rule, an appellate court may not reverse for non-constitutional error if the court, after examining the record as a whole, has fair assurance that the error did not have a substantial and injurious effect or influence in determining the jury’s verdict. Johnson v. State, 967 S.W.2d 410, 417 (Tex.Crim.App.1998); King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App.1997).9

After examining the record of appellant’s trial as a whole, we do have fair assurance that the error in question did not have a substantial and injurious effect or influence in determining the jury’s verdict at the punishment phase. Our conclusion is based on two fundamental facts. First, there was a considerable amount of other evidence from which the jury could have concluded that appellant had been abusive toward his wife, Jessica.10 Second, *928there was more than ample evidence to support the jury’s affirmative answer to the special issue concerning appellant’s future dangerousness.11 Point of error four is overruled.

In his fifth point of error, appellant claims the trial court erred, at the punishment phase, in admitting “irrelevant abstract proof’ of criminal activities carried out by the “Angels of Sin” street gang in San Antonio in 1992. Appellant argues that the evidence of the gang’s activities was irrelevant and inadmissible because there was insufficient evidence to connect him to the gang.

At the punishment phase of a capital murder trial, evidence of a defendant’s character, good or bad, is relevant to the special issues. Jones v. State, 944 S.W.2d 642, 652 (Tex.Crim.App.1996), cert. denied, 522 U.S. 882, 118 S.Ct. 100, 139 L.Ed.2d 54 (1997). Evidence of gang membership is relevant to show a defendant’s bad character if the State can prove (1) the gang’s violent and illegal activities and (2) the defendant’s membership in the gang. Mason v. State, 905 S.W.2d 570, 577 (Tex.Crim.App.1995), cert. denied, 516 U.S. 1051, 116 S.Ct. 717, 133 L.Ed.2d 670 (1996). Here, San Antonio Police Officer John Schiller testified in relevant part that appellant was arrested in 1992 for writing gang graffiti and that, in a post-arrest interview, appellant admitted being an “Angel of Sin” gang member. This testimony was clearly sufficient to establish appellant’s membership in the gang. Point of error five is overruled.

In point of error six, appellant claims the trial court abused its discretion at the guilt/innocence stage of trial by allowing the State to present victim impact evidence in the form of the medical records of a wounded adult bystander, John Luna. Luna was among the relatives who went to appellant’s house on the morning of the offense to help his wife, Jessica, move out. After shooting Jessica and a police officer inside the house, appellant emerged from the house still shooting. Luna fled but was shot in the leg. Luna’s medical records were admitted into evidence. The records reflected that Luna was taken by ambulance to a hospital, where he received treatment for his leg wound and a shoulder wound. He was discharged from the hospital on the second day. The records state that Luna was calm and in good spirits during his stay. There was some swelling of the wounded leg and drainage from the wound. On his discharge, Luna was instructed to change his bandages twice each day and to continue taking the prescribed pain medication every four to six hours as needed. Appellant claims these records were “irrelevant victim impact” evidence and should not have been admitted.

*929In Mathis v. State, 67 S.W.3d 918, 928 (Tex.Crim.App.2002), we stated that “victim impact evidence” is “generally recognized as evidence concerning the effect that the victim’s death will have on others, particularly the victim’s family members.” Appellant mischaracterizes Luna’s medical records as victim impact evidence. The records did not reveal anything about Luna’s good character or how third persons were affected by the death of the victim named in the indictment (the police officer). The records reflected in the most technical terms Luna’s medical condition while in the hospital. While the records might have been irrelevant or inadmissible for other reasons, they were not irrelevant or inadmissible because they were victim impact evidence, as appellant claims. See id. The trial court did not abuse its discretion in overruling appellant’s objection to the records on those grounds. Point of error six is overruled.

In his seventh point of error, appellant claims the death penalty is cruel and unusual punishment in violation of the Eighth Amendment. He wants his sentence reformed to imprisonment for life. The death penalty does not, however, violate the Eighth Amendment. Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976); Canales v. State, 98 S.W.3d 690, 700 (Tex.Crim.App.2003). Point of error seven is overruled.

We affirm the judgment of the trial court.

HERYEY, J., did not participate.

OPINION

PRICE, J.,

delivered the opinion for a unanimous Court.

During the appellant’s trial for aggravated robbery, the trial court admitted a hearsay statement made by the victim four days after the attack. We granted review to determine whether the victim’s hearsay statement qualifies as an excited utterance. We conclude that it does because a reasonable trial judge could have concluded that the victim was still under the influence of the startling event — the robbery— when he made the statement.

I. Facts and Procedural History

Pelagio Jimenez was attacked and robbed by two assailants on a Friday. During the attack, he disarmed the two attackers and stabbed them both. Albert Thompson, a man whose patio was about 200 feet away from the scene, saw the attack and called the police.

The police arrived a few moments later. One of the officers spoke to Jimenez in Spanish. The officer was able to discern two words in Spanish that Jimenez said: knife and two. Jimenez spoke a particular dialect of Filipino and a small amount of Spanish, but could not understand or speak English.

Jimenez was taken to the hospital, where a staff member called his daughter, Juliet Ralph. She went to the hospital, but was unable to see or speak with her father because he was in surgery. Hospital staff members told Ralph that they could not understand what Jimenez had been saying when he came into the emergency'room.

Ralph said that she was not able to speak with her father until Tuesday because after he was out of surgery he was heavily medicated, unconscious, or incoherent.1 On Tuesday, Jimenez was awake and alert. When Ralph asked Jimenez what had happened to him, Jimenez responded that “they robbed me again.” *186Ralph testified that he was “kind of mad” and that he was excited because he had gotten even with his attackers. Jimenez spoke in a loud voice and gestured with his hands. Ralph explained that her father is ordinarily a calm person and that it was unusual for him to be so upset. During her testimony, Ralph repeated Jimenez’s statement over the appellant’s objection.2

On direct appeal, the appellant complained that the trial court erred in admitting the hearsay statement. The Court of Appeals held that the trial court did not abuse its discretion.3 The Court concluded that, although continuity of excitement from the startling event until the statement is made is one way to assure the reliability of a hearsay statement, it is not the only way. Jimenez’s statement could reasonably have been considered an excited utterance because he had not had the opportunity to reflect or fabricate while he was unconscious.

In a dissent from the denial of en banc review, Justice Jennings argued that the Court of Appeals’s holding is inconsistent with our holding in Zuliani v. State. 4 , The dissent states that the'Court of Appeals’s reliance on unconsciousness as a substitute for continuous excitement “logically precludes the possibility that his statements were ‘made while [he] was under the stress’ ” of the attack.5

We granted review to determine whether the Court of Appeals erred in holding that a hearsay statement made four days after a startling event could be admitted as an excited utterance. We will affirm because, under the unusual circumstances of this case, the trial court could have reasonably concluded that Jimenez was still under the influence of the attack and that he was incapable of reflection or fabrication.

II. The Law

We review a trial court’s decision to admit evidence over objection under an abuse of discretion standard and will not reverse that decision absent a clear abuse of discretion.6 The trial court abuses its discretion when the decision lies outside the zone of reasonable disagreement.7

Hearsay statements are generally not admissible unless the statement falls within a recognized exception to the hearsay rule.8 One such exception is the excited utterance exception. An excited utterance is “[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.” 9 The exception is based on the assumption that the declarant is not, at the time of the statement, capable of the kind of reflection that would enable him to fabricate information.10

To determine whether a statement is an excited utterance, trial courts should determine “whether the declarant was still dominated by the emotions, excitement, fear, or pain of the event or *187condition” when the statement is made.11 Factors that the trial court may consider include the length of time between the occurrence and the statement, the nature of the declarant, whether the statement is made in response to a question, and whether the statement is self-serving.12

III. Arguments and Analysis

The appellant argues that the Court of Appeals erred in affirming the trial court’s admission of the statement. He focuses on two points: one legal and one factual. First, he argues that the state of excitement must be continuous during the period between the startling event and the statement. Next, he argues that, assuming that unconsciousness may be a substitute for continuous excitement, Jimenez was not unconscious during the entire period from when he was attacked until he gave the statement.

A. Must the State of Excitement Be Continuous?

First, the appellant claims that the state of excitement must be continuous. In support of this claim, he cites cases from Texas courts of appeals.13 He argues that the Court of Appeals’s theory that unconsciousness may substitute for continuous stress of excitement has not been recognized by other courts.

In response to the appellant’s first point, the State claims that the cases cited by the appellant in support of his claim are distinguishable and that there are cases in other jurisdictions that support the Court of Appeals’s holding that the unconsciousness can support the finding that Jimenez was still dominated by the stress of the attack when he gave the statement.

The appellant cites four eases from Texas courts of appeals in support of his claim that the stress from the exciting event must be continuous. We agree with the State that these cases are distinguishable from the case before us.

In Mosley v. State, 14 , Gay v. State, 15 and Vera v. State, 16 the State sought to introduce victim outcry statements in cases of aggravated sexual assault as excited utterances. In Mosley, the statement came several days after Mosley molested his daughter. During that time period, the victim was returned to her normal caregiver and had the opportunity to reflect.17 In Gay, the statement was made ten days after the aggravated sexual assault.18 In Vera, the statement was made about five *188hours after the assault.19 In each case, the courts of appeals held that the children were capable of reflection.20

Finally, in Ytuarte v. State, 21 an aggravated assault case, the State offered the testimony of a police officer who interviewed the victim shortly after the attack. According to the officer, the victim had told him that Ytuarte had attacked her and threatened to kill her while brandishing a baseball bat. The officer said that the victim was tearful, distraught, and in a lot of pain. Before the victim had made her statement to the officer, she had gone to the hospital alone and, after waiting some time, returned home. Someone else took her to another hospital. After treatment and sedation, the officer questioned her. The Court of Appeals concluded that because of the lengthy delay and the period of time when the victim was not with her attacker, the victim had had an opportunity to reflect.22

These cases are all distinguishable from the facts of this case because the victim-declarants were awake and coherent: not unconscious, heavily medicated, or incoherent. As a result, these cases do not support the appellant’s proposition.

More on point is Parks v. State 23 In that case, the admission of a statement by a declarant who had been shot was held to be an abuse of discretion because of the six-hour delay and the fact that the victim had undergone surgery. In that case, the Court of Appeals found that the intervening circumstances — anesthesia, surgery, being in the recovery room — between the shooting and the statement attenuated the shock of the shooting.24

But there have been other cases in other jurisdictions where courts have found that a period of unconsciousness or shock can support a finding that a hearsay statement was an excited utterance. For example, in State v. Wallace, 25 the Ohio Supreme Court held that a hearsay statement made by the victim of an attempted murder and assault about fifteen hours after the attack was an excited utterance for purposes of Ohio’s version of the exception to the hearsay rule. During the fifteen-hour period between the attack and the statement, the declarant had been “unconscious, with intermittent periods of consciousness or semi-consciousness.”26 The Ohio Supreme Court said, “A period of unconsciousness, even an extended period, does not necessarily destroy the effect of a startling event upon the mind of the declarant for the purpose of satisfying the excited-utterance exception to the hearsay rule.”27 Ultimately, the Court decided that there was no indication in the record that the declar-ant had a meaningful opportunity to reflect during the intermittent periods of consciousness and semi-consciousness.28

*189While intervening circumstances may diminish the stress from an exciting event, the opposite also can be true. Each case that involves a period of unconsciousness between the time of the startling event and the statement must be reviewed in light of the facts and circumstances of the case. Rather than say that unconsciousness is a substitute for continuity of the stress of the event, we conclude that the declarant’s state of consciousness is a factor to consider in the analysis. Trial courts and reviewing courts should address this fact within the factors for a traditional analysis to determine whether a hearsay statement falls within the excited utterance exception.

B. Must the Declarant Be Unconscious for the Entire Duration?

In his second argument in opposition to the Court of Appeals’s holding, the appellant claims that, even if unconsciousness is not a bar to the finding that a statement is an excited utterance, Jimenez’s statement still should not have been admitted. The appellant claims that because Jimenez was not unconscious during the entire period between the attack and the statement, he was capable of reflection and fabrication.

In response to the appellant’s second point, the State claims that the evidence supports that when Ralph visited Jimenez in the hospital he was in surgery, unconscious, heavily medicated, or incoherent until Tuesday, the day that he gave his statement. The State also claims that this is a fact finding, and that reviewing courts should afford almost total deference to the trial court’s findings of fact.29

As in Wallace, the record in this case indicates that Jimenez was not unconscious during the entire four day period. He spoke to hospital staff members in the emergency room, and Ralph testified that, during the four-day period, her father was unconscious or heavily medicated or incoherent.

We find McCormick on Evidence to be helpful in dealing with situations in which a long period of time has passed between the startling event and the statement. It states

A useful rule of thumb is that where the time interval between the event and the statement is long enough to permit reflective thought, the statement will be excluded in the absence of some proof that the declarant did not in fact engage in a reflective thought process. Testimony that the declarant still appeared “nervous” or “distraught” and that there was a reasonable basis for continuing emotional upset will often suffice.30

We find this persuasive, particularly because it is similar to our analysis in Zulia-ni 31 In that case, we held that a statement made twenty hours after an assault on the victim by the defendant was an excited utterance because (1) the victim had been with her attacker during the entire period and (2) the victim was clearly still very upset, and thus, still under the influence of the attack.32

Just as the Court did in Wallace, we conclude that the declarant need not necessarily have been unconscious for the entire period between the startling event and the statement, so long as the record supports the reasonable conclusion that *190the declarant did not have a meaningful opportunity to reflect.

' IV. Application

We will now determine whether Jimenez was still dominated by the emotions, excitement, fear, or pain of the attack when he made the statement by considering the following factors: (A) the length of time between the occurrence and the statement and the circumstances, (B) the demeanor of the declarant, (C) whether the statement was made in response to a question, and (D) whether the statement is self-serving.

(A)Length of the Delay and the Circumstances

Four days is a very long time between the startling event and the statement. As a result, we must look-to the record for evidence that Jimenez ■ did not have a meaningful opportunity to reflect.

Jimenez attempted to communicate with hospital staff when he was in the emergency room before surgery. The trial court could have reasonably concluded that, in the time between when Jimenez was stabbed in the abdomen and when he went under anesthesia for surgery,, he was still in shock and under the influence of the emotions from the attack.

Ralph testified that, when she arrived at the hospital on the night of the attack, her father was in surgery. She visited him each day and found him to be unconscious, heavily medicated, or incoherent. On Tuesday, when Ralph arrived her father was awake and coherent. When Ralph asked him what had happened, Ralph said that her father was animated, angry, and excited. Jimenez made hand gestures and spoke in a loud voice. As he was talking, he drew the attention of other people in the room.

We conclude, based on the record, that the trial court could have reasonably concluded that Jimenez had no meaningful opportunity to reflect between the time when he was attacked and when he gave the statement. Although the delay was long, this factor weighs, though not strongly, in favor of admission because Jimenez did not have a meaningful opportunity to reflect.

(B)Demeanor of the Declarant

' Ralph testified that her father was ordinarily a cálm man and that it was unusual for him to be so loud and animated. We conclude that this factor weighs in favor of admission.

(C)Whether the Statement Was Made in Response to a Question

The statement in this case was made in response' to a question. Ralph testified that she asked Jimenez what had happened to him. There is no indication that the question was asked for any reason other than familial concern. And there is no indication that Jimenez’s answer was anything but a spontaneous response after becoming coherent after a period of surgery, unconsciousness, and heavy medication. This factor weighs in favor of admission.

(D)Whether the Statement Is Self-Serving

We can discern no self-serving motive from the record. The appellant suggests that Jimenez may have falsely accused the appellant to get even with him for a prior attack. Although Ralph was not the State’s last witness, she appeared near the end of the State’s case. The trial court had already heard substantial evidence from the State indicating that the appellant had, along with another man, attacked Jimenez. Within minutes of the arrival of *191the police on the scene, they found, the appellant and the other man involved in the offense. They both had stab wounds as described by one of the witness’s at the scene. The police had the two men transported to a hospital.

It seems more likely that Jimenez would want the actual people who attacked him to be charged and sentenced. We can discern no self-serving motive for Jimenez to fabricate his accusation against the appellant. This factor weighs in favor of admission.

V. Conclusion

Having found that all of the factors weigh in favor of admission, we cannot say that the trial court abused its discretion in admitting the statement made by Jimenez. We affirm the judgment of the Court of Appeals.

OPINION

HOLCOMB, J.,

delivered the opinion for a unanimous Court.

In this case, we must determine whether, under Texas Rule of Evidence 803(2), the event about which an excited utterance is made has to be the same event that caused the declarant’s excitement. We hold that it does not and affirm the judgment of the court of appeals.

Background

Appellant Andrew Tyrone McCarty was tried in 2000 on two counts of indecency with his five-year-old step-daughter,1 but a mistrial was declared. In 2006, appellant was tried again on the same two counts of indecency with a child and also on two additional indictments for aggravated sexual assault of the child by penetration.2 The record shows that, at the second trial, the complainant testified that she remembered nothing about the charged offenses. Her testimony from the previous trial was then read into evidence. The State also presented the testimony of several other *239witnesses, including two outcry witnesses and the complainant’s grandmother, Debra Bassett Tune. During the course of her testimony, Tune related an incident, including out-of-court statements by the complainant, when Tune’s young son (“Uncle Colt”) attempted to tickle the complainant.3 Appellant objected to the complainant’s statements as being hearsay, but the trial court admitted the evidence under the excited-utterance exception to the hearsay rule. See Tex.R. Evid. 803(2). The jury found appellant guilty on both counts of indecency with a child. The jury was unable to reach a verdict on one of the aggravated sexual assault charges, and found appellant not guilty on the other aggravated sexual assault charge. The jury assessed appellant’s punishment at ten years’ imprisonment and a $1,000 fine on each indecency with a child conviction.

On appeal, appellant raised three issues, only one of which is relevant to our present review. Appellant contended that the trial court erred in admitting Tune’s testimony regarding the complainant’s out-of-court statements when the uncle tickled her, arguing that those statements did not qualify as excited utterance under the Texas Rules of Evidence. The court of appeals disagreed, McCarty v. State, 227 S.W.3d 415, 417 (Tex.App.-Texarkana 2007), and, overruling all of appellant’s issues, affirmed the judgment of the trial court. Id. at 419. We granted appellant’s petition to review the court of appeals’ holding solely on the excited-utterance issue.

Discussion

We review a trial court’s decision to admit evidence over objection under an abuse-of-diseretion standard and will not reverse that decision absent a clear abuse of discretion. Zuliani v. State, 97 S.W.3d 589, 595 (Tex.Crim.App.2003). The trial court abuses its discretion when the decision lies outside the zone of reasonable disagreement. Cantu v. State, 842 S.W.2d 667, 682 (Tex.Crim.App.1992). Hearsay statements are not admissible unless they fall within a recognized exception to the hearsay rule. Tex.R. Evid. 802. The excited-utterance exception, at issue in the case before us, is one of the recognized exceptions to the hearsay rule and applies to “[a] statement relating to a startling event or condition made while the declar-ant was under the stress of excitement caused by the event or condition.” Tex.R. Evid. 803(2) (emphasis added).

Appellant in the present case argues that “the event producing the excited utterance must be the event about which the utterance is made.” In other words, he contends that the complainant’s statements would have been admissible only if they were about the uncle’s tickling itself, the event which had produced the complainant’s “excited utterance.”

We disagree. The problem with appellant’s position is that he is equating the relatively strict requirements of Rule 803(1), the present-sense-impression exception to the hearsay rule, with the relatively more liberal requirements of Rule 803(2), the excited-utterance exception. A “present sense impression” is “[a] statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.” Tex.R. Evid. 803(1) *240(emphasis added). Thus, this is the exception under which the State, in this case, might have been required to show that the statement was directly related to the uncle’s tickling in order for the statement to be admissible. But the State did not invoke this particular exception, asserting instead that the statement was an “excited utterance,” which is “[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.” Tex.R. Evid. 803(2) (emphasis added). Authors on the subject agree that the excited-utterance exception is broader than the present-sense-impression exception;4 and that, under the excited-utterance exception, the startling event may trigger a spontaneous statement that relates to a much earlier incident. The record in the present case shows that appellant had started off by merely tickling the child, but went much further. Thus, the complainant’s statement about appellant’s tickling (the “earlier incident,” id. at 844) “related to” the uncle’s tickling (the startling event), and we see no abuse of discretion in the trial court’s decision to admit the statement under the Rule 803(2) excited-utterance exception to the hearsay rule.5

Appellant also argues that the court of appeals erred in relying on Tezeno v. State, 484 S.W.2d 374 (Tex.Crim.App.1972), and Sellers v. State, 588 S.W.2d 915 (Tex.Crim.App.1979), because those were “pre-rule cases” involving “discussions of the ‘spontaneous utterance’ rule, which, although similar, is not the same as the ‘excited utterance’ involved in Rule 803(2) of today’s Texas Rules of Evidence.” Appellant asserts that the “spontaneous utterance” rule is “obsolete,” and claims that it was “repudiated by adoption of the new [rule] and the language of [the ‘spontaneous utterance’] rule has been streamlined and brought into focus in the almost twen*241ty years since it was replaced by current Rule 803(2).”

We note that appellant cites no authority for the above assertions. Rather, he structures his argument as follows. He first quotes the following language used in Tezeno and Sellers to define the “spontaneous utterance” exception as one allowing the admission of a statement if:

1. the statement is the product of an occurrence startling enough to produce a state of nervous excitement which would render the utterance spontaneous and unreflecting,

2. the utterance is made before there is time to contrive and misrepresent, that is, the state of excitement produced by the startling event must still dominate the reflective powers of the mind,

3. the utterance must relate to the circumstances of the occurrence preceding it.

Tezeno, 484 S.W.2d at 378; Sellers, 588 5.W.2d at 918. He then quotes Rule 803(2), which defines an “excited utterance” as a “statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.” Tex.R. Evid. 803(2). Comparing the above-quoted language from Tezeno and Sellers with that of Rule 803(2), appellant concludes that “[i]t is clear that the ‘spontaneous utterance’ exception is not the same as the ‘excited-utterance’ exception of Rule 803(2).”

We disagree. The problem with appellant’s reasoning is that he is comparing the succinct definition of the Rule 803(2) exception with the Court’s comprehensive test of what was once called the “spontaneous utterance” exception. An examination of the literature on the excited-utterance exception, however, reveals the striking similarity (perhaps even a virtual identity, for purposes of the present case) between the two exceptions. Indeed, scholars writing about the excited-utterance exception often use the terms “spontaneous” and “excited” interchangeably. See, e.g., 2 Steven Goode ET AL., supra note 4, § 803.3, at 185 (“Texas courts have always recognized the hearsay exception for excited utterances or spontaneous declarations”) (emphasis added). More importantly, in explaining the requirements of the excited-utterance exception,6 scholars identify the same concerns articulated by this Court in Tezeno and Sellers, as shown in appellant’s own above-quoted excerpt, for the “spontaneous utterance” exception. Thus, our concerns in applying the excited-utterance exception continue to be the same as those we had in applying the spontaneous-utterance exception: that (1) the “exciting event” should be startling enough to evoke a truly spontaneous reaction from the declarant; (2) the reaction to the startling event should be quick enough to avoid the possibility of fabrication; and (3) the resulting statement should be sufficiently “related to” the startling event, to ensure the reliability and trustworthiness of that statement. Compare supra note 6 with appellant’s above-quoted excerpt *242from Tezeno and Sellers defining the “spontaneous utterance” exception.

Appellant also argues that our decision in Apolinar v. State, 155 S.W.3d 184 (Tex.Crim.App.2005), supports his position that “the event producing the excited utterance must be the event about which the utterance is made.” (Emphasis added.) He reasons as follows:

The fact that the Apolinar Court did not utilize or rely upon Sellers, Tezeno, [Hunt v. State, 904 S.W.2d 813 (Tex. App.-Fort Worth 1995, pet. ref'd) ] and [Bondurant v. State, 956 S.W.2d 762 (Tex.App.-Fort Worth 1997, pet. ref'd)], makes it clear that the rule of Tezeno, as interpreted by Sellers, Hunt, Bondu-rant, and the Court of Appeals in this case, has been repudiated ... [and the] fact that the Apolinar Court adopted an interpretation of Rule 803(2) which demonstrates that the event giving rise to the excited utterance must be the event about which the excited utterance speaks, demonstrates that the interpretation of Sellers, Tezeno, Hunt and Bondurant by the Court of Appeals in McCarty is faulty, to say the least.

(Emphasis in original.)

We disagree. First, the fact that this Court does not “utilize or rely upon” a case in deciding an apparently related case, does not mean that we have “repudiated” the case not mentioned. Moreover, we would not overrule a whole line of cases, especially one dealing with a concept so well established in both Texas and Federal law as the excited/spontaneous-utterance exception, without even mentioning it. Thus, one may continue to rely on Tezeno, Sellers, Hunt, and Bondurant concerning the treatment of the present excited-utterance exception.

Second, there is nothing in Apolinar, and appellant himself fails to cite to anything in that opinion, to support his claim that “the event producing the excited utterance must be the event about which the utterance is made.” (Emphasis added.) In Apolinar, one Pelagio Jimenez was attacked and robbed. He spoke about the incident, but the police could not understand him because he spoke a particular dialect of Filipino and a small amount of Spanish, but could not understand or speak English. 155 S.W.3d at 185. He was taken to the hospital where he remained “heavily medicated, unconscious, or incoherent,” id., for four days before he could speak with his daughter and tell her what had happened to him. The main issue presented to us in that case was to determine whether the statement still qualified as an excited utterance in spite of the rather great length of time between the startling event (attack and robbery) and the statement (recounting the event to his daughter).7 Thus, we did not even address the issue that appellant in the present case claims that we decided (that “the event producing the excited utterance must be the event about which the utterance is made” (emphasis added)) because, in Apolinar, the statement in question was about the startling event itself.

Conclusion

In light of our foregoing discussion, we hold that the trial court had correctly admitted the complainant’s statement as an excited utterance under Texas Rule of Evidence 803(2). We, therefore, affirm the judgment of the court of appeals.

OPINION

COCHRAN, J.,

delivered the opinion of the Court

in which PRICE, WOMACK, JOHNSON, and HOLCOMB, JJ., joined.

Appellant was originally convicted in 1990 of capital murder for the shooting deaths of his wife’s mother, father, and brother. Based upon the jury’s answers to the special punishment issues, the trial judge sentenced him to death. This Court upheld his conviction and sentence on direct appeal.1 In 2007, the Fifth Circuit Court of Appeals granted habeas relief and remanded the case for a new trial on punishment.2 On retrial in 2008, a second jury sentenced appellant to death. Appellant raises twenty-five points of error. Finding no reversible error, we affirm the judgment and sentence.

Factual Background

Karen Vicha was appellant’s third wife. They were married in July 1988 and lived in a house down the road from her brother and across the street from her parents. Appellant was almost forty years old. The marriage quickly disintegrated,3 and, after *262a year, Karen told appellant to move out. She wanted a divorce. Appellant attempted to talk her out of this decision and would randomly call her and show up at her work place.

Appellant then kidnapped Karen as a further effort to dissuade her from divorcing him. He hid in the trunk of her car while she was at a bar one evening with a girlfriend. When Karen started to drive home, appellant folded down the back seat and “popped out of the trunk with a knife.” He jumped over the console, halfway into the front seat, and stuck the knife against Karen’s ribs. He told her to keep driving until they came to a field. Karen stopped the car, and appellant said that he if couldn’t have her, then no one else could. He pulled out a roll of black electrical tape, but Karen kept talking, and, after about two hours, she convinced him that she would reconsider the divorce issue. He let her go, and she called her brother, Bobby, who was a police officer. Bobby told Karen to report the kidnapping.

After he arrested appellant for kidnapping Karen, Officer James Head looked in his patrol-car mirror and saw appellant staring at him with a look that “made the hair on the back of [his] head stand up.” He got “the heebie-jeebies.” Appellant muttered something like “They’re going to be sorry.” Officer Head called Karen’s brother, Bobby, and warned him about appellant. When appellant was released on bail for the kidnapping charge, Bobby got Karen a German shepherd for proteetion. A few days later, appellant told Karen, “Oh, I see you — you’ve got a dog now.... [TJhat’s a big mean dog you’ve got.” Shortly thereafter, Karen found the dog lying dead in front of her house.

Nine days after he had kidnapped Karen, appellant went to her house in the early afternoon. As Karen’s three daughters each came home from school along with Bobby’s son,4 appellant handcuffed them, tied up their feet, and taped their mouths closed. Karen’s oldest daughter testified that she heard appellant cut the telephone lines. Then he left to ambush and shoot Karen’s father, mother, and brother Bobby as each of them came home.5

Appellant returned to Karen’s house after the triple killings and waited for his wife to come home from work. He told the children, “I wish I had blown you away like I intended to.” When Karen arrived, appellant came out of one of the bedrooms with a gun. Appellant said, “Karen, I’ve killed your momma and your daddy and your brother, and they are all dead, and nobody is going to come help you now.” She didn’t believe him, so appellant showed her Bobby’s gun lying on the kitchen table and pulled the curtains so she could see her father’s truck parked behind the house. He showed her $1,000 in cash that he had taken from her mother. Appellant told Karen that she was lucky that he hadn’t molested her daughters, and he told her to kiss them good-bye. She *263did. He made her put on handcuffs. Karen talked appellant into leaving the house and taking her with him.6 He said he was going to take her away for a few weeks and torture her.7

As appellant drove, Karen tried to escape by freeing one hand from the handcuffs and grabbing at the steering wheel, making the car swerve into a ditch. She grabbed one of appellant’s guns, pointed it at his stomach, and pulled the trigger, but nothing happened. Then Karen and appellant fought over the gun, with appellant repeatedly pulling the trigger, but still the gun did not fire. Appellant pistol-whipped Karen until she couldn’t see for all of the blood on her face. A woman passerby started shouting at appellant, “[W]hat are you trying to do to that woman,” so appellant drove the car out of the ditch as Karen lay in the passenger seat. He shouted at her that if she got blood on his clothes, he would kill her. But he was also rubbing her between her legs as he drove. He told her that his reputation was ruined because she had had him arrested and his name was in the papers.

He drove to a deserted field in Bosque County where he threatened to rape her. After dark, he drove out of the field, but they passed a sheriffs patrol car which turned around to follow them. Appellant grabbed a knife and started stabbing Karen’s chin, forehead, and nose, as he was driving. Appellant said that he did not want to die in prison, so he “floored it” and rammed into a parked car. After the crash, appellant turned to Karen and said, “I guess now you’ll get a new car.” Both appellant and Karen were injured in the crash. Officers had to cut the car door open to get Karen out. Appellant was found with Karen’s father’s watch and wallet, as well as .37 and .38 caliber revolvers.

Although appellant was forty years old when he committed this triple murder, the State’s evidence showed that he was no stranger to violence. He had a long history of brutalizing and molesting women. Appellant beat both of his former wives and molested several young girls, including relatives.

His first wife, Pam Woolley, testified that they were married in 1970 when appellant was twenty-two. They had two children, but their marriage started downhill after two years. By 1974, appellant had become violent, and he used to beat her on the head so that her hair would hide the marks.8 Pam said that appellant could go from normal to extremely angry in a split second, and he always blamed her for his violent acts. Appellant told her that if she ever filed for divorce, he would “fix her” so no other man would look at her again.

During this ten-year marriage, appellant molested Pam’s younger sister and *264punched her on the mouth, “busting” her lip. He molested his children’s thirteen-year-old babysitter while teaching her how to water ski. He groped the breast of another neighborhood girl. In 1979, when appellant was thirty, he raped his cousin who was about fifteen at the time. When appellant’s niece was fifteen, he grabbed her ankles as she sat in a chair wearing a nightgown, spread open her legs, and gestured with his tongue as if he were performing oral sex on her. Later that same day, he forcibly kissed her and then threw her a $5 bill.

Appellant married Candy Ryan, his second wife, when he was thirty-five and she was eighteen. After one year of marriage, appellant started physically abusing her. He regularly hit her on the head. Once he grabbed her by the hair and repeatedly hit her against the cabinet and floor. After she dared to throw something at him, he hit her with a sledge hammer. Candy said that appellant had a “switch-type” personality — changing from sweet to nasty in a split-second. He stalked her, both during and after their marriage. He would sit in his car outside the gas station where Candy worked, and, if a customer stayed inside too long, appellant came in and gave the customer an intimidating look. After Candy left appellant, he would call her late at night and tell her where she had been, whom she had been with, and what she had been doing. Appellant threatened Candy’s father when he tried to help Candy leave.

Appellant’s childhood did not augur well for his future. His earliest years were spent in the custody of an alcoholic stepfather who worked only periodically and a sickly, withdrawn, and depressed mother. When appellant was four, his mother was institutionalized in the Austin State Hospital with a psychoneurotic disorder. Appellant, his brother, and his older sister were sent to the Corsicana State Home for Children. Because of her promiscuous acting-out, appellant’s older sister was sent to a convent school, and his problematic older brother was placed under the supervision of the Waco Probation Department. Appellant remained at the Home for twelve years.

When appellant was fifteen, a psychiatrist, Dr. Hodges, evaluated him and concluded that he was paranoid, distant, and impulsive; he showed poor self-control, displayed hostility to women, and blamed others for his own bad conduct. Dr. Hodges’s impression was that appellant “represented] a sociopathic personality disturbance of the dissocial type.” People with this diagnosis gratify their own desires without regard for the cost to others. Appellant’s “long term prognosis [did] not look good.”

At age seventeen, appellant joined the Marine Corps and was sent to Vietnam. Although he received an honorable discharge after his four-year tour of duty, he was not recommended for re-enlistment because of a series of violations and convictions. He married his first wife shortly after he left the Marines.

Dr. Richard Coons, a psychiatrist, had testified at appellant’s 1990 trial that he would be a future danger. Dr. Coons testified at the 2008 retrial that appellant would still be a future danger even though appellant did not have a single disciplinary report for the eighteen years that he had been on death row. Dr. Coons explained this discrepancy by stating that all those on death row have an incentive to behave because their convictions are on appeal, and thus they are less violent than they would be in the general prison population.

Appellant called several witnesses to attest to his prison reformation and lack of violence for the entire time that he had been on death row. According to one fel*265low inmate, appellant was well liked by everyone; he was always even-tempered and had the ability to “talk sense” into some of the more violent inmates. He said that appellant had organized a sports league at the Ellis Unit and that he helped inmates write letters and would read them their letters from family members. After Death Row was moved to the Polunsky Unit, appellant’s behavior was the same; he was always helpful and upbeat.

Another inmate testified that appellant would take people “under his wing” and help the “agitated” ones. He stated that, while at the Ellis Unit, appellant was an SSI, which was like a trustee, and would often walk around with female officers. A third inmate testified that appellant was generous and gave commissary items to other inmates. A fourth inmate said that appellant helped him to learn English and to file a federal habeas petition. Appellant helped mentally-retarded inmates and was known for his respect for the law and God.

Appellant’s older sister testified about their childhood and how appellant changed for the worse after coming home from Vietnam. She said that, shortly before the triple murders, she saw appellant throwing away many of his most prized possessions, and he began talking about his experiences in Vietnam, something he had never done before. On the day of the murders, appellant threw his truck keys at her and said that, if anything happened, the truck was hers. Appellant’s son testified that appellant taught him welding, and he described his father as loving and helpful to others.

Dr. Cunningham, a forensic psychologist, testified that he had reviewed appellant’s prison record which contained no disciplinary write-ups. Dr. Cunningham conducted a violence risk assessment of appellant. In his opinion, appellant had a very low probability of committing acts of violence while in prison.

Sufficiency of the Evidence to Prove Future Dangerousness

In his first and second points of error, appellant asserts that the evidence is legally and factually insufficient to support the jury’s finding that there is a probability that he would commit criminal acts of violence in the future. As appellant acknowledges, we have consistently held that we lack authority to conduct a factual sufficiency review of the jury’s future-dangerousness verdict.9 Appellant’s arguments do not persuade us otherwise.

In assessing the legal sufficiency of the evidence to support future dangerousness, we “view the evidence in the light most favorable to the jury’s findings and determine whether any rational trier of fact could have found beyond a reasonable doubt that there is a probability that [the defendant] would commit criminal acts of violence that would constitute a continuing threat to society.”10 Only if, after reviewing all of the record evidence, we conclude that a rational jury would necessarily have entertained a reasonable doubt about the defendant’s future dangerousness, will we find that the evidence is legally insufficient.11

Appellant does not suggest that the evidence of his gruesome triple murder and his life-long history of violence toward women and young girls is — viewed in a *266vacuum — insufficient to support the jury’s finding. Clearly it is sufficient. Instead, he argues that, like Saul on the road to Damascus, he has experienced a character conversion while spending the last eighteen years in prison with a spotless disciplinary record. He has proven that he no longer poses any realistic threat of violence. This is, at first blush, a compelling argument.

Appellant notes that he was almost sixty years old and in poor health12 at the time of the present trial. Appellant points to the evidence that shows that he has not merely stayed out of trouble for eighteen years in prison, but that he has made positive contributions to his prison society. He worked in the prison garment factory when he was housed in the Ellis Unit; he helped diffuse potential conflicts by talking “sense” into frustrated inmates; he formed a prison sports league; he gave commissary items to inmates who did not have money; he helped an inmate learn English and draft legal papers. Dr. Cunningham, his expert forensic psychologist, placed appellant in the lowest risk group for violence in prison. But, as the prosecutors pointed out, appellant had done many of these same positive things before the murders as well: he coached one of Karen’s daughter’s baseball teams; he fixed things around the house; he tended the garden; he praised Karen; he repaired their car; he helped organize a school sports banquet. Appellant’s son, Gordon, testified that his father helped him with sports and took him fishing and hunting. He taught Gordon welding, electrical work, and a good work ethic. He was a very patient teacher and friendly, talkative, happy, and helpful to others.

Appellant agrees with the proposition that “the past is the best predictor of the future,” and he relies upon a spotless, positive prison record as a realistic predictor of the future. Appellant concludes that, “[i]n light of [his] age and his prison record, ... the only rational finding in this case is that he would not be a continuing threat to society. For that reason, his sentence must be vacated.”13

This is the same argument that appellant made during the trial, and the jury must have taken it seriously because it asked for just three pieces of evidence during its deliberations, evidence that was directly relevant to this argument:

(1) Dr. Hodges’s Austin State School psychiatric report from 1964 when appellant was 15. That report stated that appellant seemed paranoid and distant and “extremely hostile to women”; Dr. Hodges’s impression was that “this boy represents a so-eiopathic personality disturbance of the dissocial type.”14 He concluded, *267“The long term prognosis does not look good.”

(2) The military medical record from appellant’s 1967 self-inflicted stabbing wound in his thigh after he had a fight with his girlfriend.15 According to the military doctor, appellant “revealed evidence of lifelong maladjustment.” On the hospital ward he was “hostile and belligerent” and only slowly “began to conform to the ward milieu.”

(3) The pictures and cards that appellant had in his death row cell. These included numerous pictures of scantily clad young women and girls — young gymnasts and skaters — as well as romantic cards and photographs from a female pen pal.

The jury had also heard from several different sources about appellant’s mercurial moods: one moment calm and sweet, the next moment in a towering rage.16

The jury also heard evidence that appellant, after all his time on death row, was still hostile to women. Karen testified that when she appeared for a hearing in 1998, almost ten years after appellant’s original conviction, appellant “turned around and watched me sit down. And then, after that, he kept turning around and looking at me and grinning.” It was a “weird evil grin.” Karen “called it to the Judge’s attention, and then he told him to stop. And then, he did it again. And [the judge] told him — I think his words were, I have to admonish you for that and I’ll have to call you in contempt if you don’t stop it.” According to Karen, appellant had that same grin when she testified at the 2008 trial.

Appellant’s attorney explained at trial that, “I’m not saying Bill Coble is a different person — okay—than he was in 1989. But you can see that he’s made changes. You can see that he has adapted himself to prison environment, that[ ] he’s adapted himself to institutional life. That’s very clear.” That is clear; appellant has adapted very well to prison life, but that fact, by itself, does not resolve the special issue:

Is there a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society?17

This question is essentially a normative one as the Legislature declined to specify a particular level of risk or probability of *268violence.18 But the “future dangerousness” special issue ensures that no defendant, regardless of how heinous his capital crime, will be sentenced to death unless the jury finds that he poses a real threat of future violence.

The special issue focuses upon the character for violence of the particular individual, not merely the quantity or quality of the institutional restraints put on that person.19 As we recently stated in Estrada v. State, 20 “This Court’s case law has construed the future-dangerousness special issue to ask whether a defendant would constitute a continuing threat ‘whether in or out of prison’ without regard to how long the defendant would actually spend in prison if sentenced to *269life.”21 That is, this special issue focuses upon the internal restraints of the individual, not merely the external restraints of incarceration. It is theoretically possible to devise a prison environment so confining, isolated, and highly structured that virtually no one could have the opportunity to commit an act of violence, but incapacitation is not the sole focus of the Legislature or of our death penalty precedents.22

The Supreme Court has stated that “a state capital sentencing system must: (1) rationally narrow the class of death-eligible defendants; and (2) permit a jury to render a reasoned, individualized sentencing determination based on a death-eligible defendant’s record, personal characteristics, and the circumstances of his crime.”23 Thus, juries appropriately focus upon the defendant’s individual character for violence and the probability that he would commit acts of violence in whatever society he found himself.24 Obviously, the likelihood that a defendant does not or will not pose a heightened risk of violence in the structured prison community is a relevant, indeed important, criterion, but it is not the exclusive focus of the “future dangerousness” issue.

There is no denying appellant’s impressive history of nonviolence in prison. Nor did the prosecutors at trial try to minimize that record. They noted that appellant has always done some good things in his life. The issue, however, is whether he is the same person — with the same character for sudden explosive violence — that he was when he was diagnosed at age 15 as having a “sociopathic personality disturbance of the dissocial type.” Has his character changed since he was again diagnosed as having a lifelong history of maladjustment, belligerence and violence, when he was hospitalized at the age of 19 after fighting with his fiancee and stabbing himself in the thigh as a Marine? Was the “evil grin” Karen said that he gave her in court when appellant was fifty years old, and then again when he was sixty, indicative of a continuing animosity and character for brutality toward women? And did the pictures in his death row cell indicate an unnatural interest in young, athletic, scantily clad women for a sixty-year-old man *270with a heart condition? It was the jury’s duty to assess appellant’s present character for future dangerousness, and there was ample evidence to support its finding, beyond a reasonable doubt, that appellant had not experienced a conversion on the road to Damascus; rather, he had the same character for violence at age 60 that he did at ages 15, 19, and 40, despite his spotless prison record.25

The evidence is legally sufficient to support the jury’s finding on the future dangerousness special issue. We overrule points of error one and two.

The Admissibility of Dr. Coons’s Expert Testimony

In points of error three and four, appellant contends that Dr. Richard Coons’s expert testimony concerning future dangerousness was not admissible under Rule 70226 because it was insufficiently reliable. We agree. In point of error five, appellant asserts that this type of evidence fails to meet the heightened reliability requirement of the Eighth Amendment, but the United States Supreme Court, in Barefoot v. Estelle, 27 rejected this argument, and we are required to follow binding precedent from that court on federal constitutional issues.28

A. The Daubert/Kelly Hearing.

At trial, appellant objected to Dr. Coons’s proposed testimony and requested a Daubert/Kelly29 hearing outside the presence of the jury. At that hearing, Dr. Coons testified that he is board certified in general psychiatry and has been practicing forensic psychiatry for thirty-one years. He has evaluated the competency or sanity of between 8,000 to 10,000 people, has performed 150 evaluations of “future dangerousness,” and has testified in fifty trials as an expert.

Dr. Coons testified that psychiatric principles are commonly used when making determinations of a person’s danger to himself or others in the context of involuntary psychiatric commitments. He said that he also relies upon psychiatric principles when he evaluates defendants for “future dangerousness” for capital murder trials. He repeatedly stated that “the best predictor of the future is the past” and noted that

there are certain trends in people who are, in other words, habit patterns or personality patterns that — that we rely *271on. Um, and then, of course, there’s the experience one has, the training and then the experience that one has in seeing quite a number of people and, uh— uh — watching classifications within various jails and so forth. Uh, those are kind of the principles or the things that are — opinions are based on.

Dr. Coons noted that there are some psychiatric diagnoses that are listed in the DSM,30 such as antisocial personality disorder, that might indicate that a person is dangerous. But in this case, Dr. Coons relied on materials supplied by the District Attorney’s Office.

Dr. Coons explained his standard methodology in assessing the issue of future dangerousness. For at least the past twenty years he has relied upon several different factors:

(1) The person’s history of violence;

(2) The person’s attitude toward violence;

(3) The particulars of the criminal offense;

(4) The person’s personality and general behavior;

(5) The person’s conscience; and

(6) Where the person will be — in or out of prison.

He assesses these factors based on the information that he has been given. This is his own personal methodology. He does not know whether others rely upon this method, and he does not know of any psychiatric or psychology books or articles that use his factors. But “[t]hese are matters that are discussed commonly at — at forensic meetings and among forensic psychiatrists .... [B]ut generally speaking, those are the — are the kinds of things that, uh, forensic psychiatrists would take into consideration in reaching an opinion.” He doubts that his methodology is shared by everyone because different psychiatrists construct their own methodologies.

Dr. Coons stated that multiple psychiatrists would not necessarily agree on what is important in the first factor — looking to past conduct to predict future conduct. “I’m the one who’s making the decision— about whether it means something to me in terms of what I — my education or experience or background is.” It is a subjective evaluation. When assessing past violence, Dr. Coons looks at its nature and context.

The same subjectivity is true for the second factor, a person’s attitude about violence, as well as the third factor, the circumstances of the offense. Two different psychiatrists may come to different conclusions based on the same facts. Dr. Coons said that forensic psychiatrists develop an experiential body of knowledge and information and approach that helps them make their decisions. But Dr. Coons disagreed that it was “just a gut feeling.”

When it comes to the fourth factor of personality and behavior, Dr. Coons looks to whether the crime was an aberration or whether that person has had a problem looking out for other people. Is he controlling? Manipulative? With the fifth factor, “conscience is involved in — in helping people control their behavior. And, I mean, really, I guess almost everybody knows that.” There is no yardstick to measure it. With the final factor, Dr. Coons stated that if the person is on death row he will be less violent because “everybody that’s on death row is on appeal by definition. And they tend to be on their good behavior. Uh, because if they — on their bad behavior and they get another trial or punishment, they uh — they know *272they’ll hear about it again. Their violence on death row or threats or whatever.”31

All of these factors overlap and blend, but Dr. Coons knows of no book or article that discusses these factors or their overlap. He is not aware of any studies in psychiatric journals regarding the accuracy of long-term predictions into future violence in capital murder prosecutions or of any error rates concerning such predictions. Nor is he aware of any psychiatric studies which support the making of these predictions. Dr. Coons has never gone back and obtained records to try to check the accuracy of the “future dangerousness” predictions he has made in the past. He cannot tell what his accuracy rate is.

On redirect, the prosecutor asked Dr. Coons to read from a legal brief containing the names and titles of some articles on future dangerousness that had been filed in a different case, but Dr. Coons was not familiar with any of those articles.

Based on this testimony, the trial judge found that Dr. Coons qualified as an expert witness, that the subject matter of his testimony was an appropriate one for experts, and “that admitting the expert testimony will actually assist the factfinder in deciding this case.”

Dr. Coons then testified before the jury and, in response to a lengthy hypothetical setting out the salient features of appellant’s life and crimes, opined that there was a probability that appellant would commit future acts of violence.

B. Legal Principles Concerning the Admission of Expert Psychiatric or Psychological Testimony Concerning Future Dangerousness.

The admission of expert testimony is reviewed on appeal for an abuse of discretion.32 However, trial judges must act as a true “gatekeeper” when addressing the reliability and relevance of expert testimony.33 In Daubert, the United States Supreme Court held that when the subject of the expert’s testimony is “scientific knowledge,” the basis of his testimony must be grounded in the accepted methods and procedures of science.34 As that court explained,

[I]n order to qualify as “scientific knowledge,” an inference or assertion must be derived by the scientific method. Proposed testimony must be supported by appropriate validation — i. e., “good grounds,” based on what is known. In short, the requirement that an expert’s testimony pertain to “scientific knowledge” establishes a standard of eviden-tiary reliability.35

*273Four “general observations” guide the inquiry into scientific reliability: (1) falsifiability; (2) peer review and publication; (3) the existence of methodological standards, including the error rate; and (4) general acceptance within the relevant scientific field.36 The goal of these “flexible” guidelines is to evaluate the admissibility of expert testimony by the standards that comparable experts within the same scientific field use in evaluating each other’s professional work.37

In Kelly v. State,38 this Court adopted several procedural and substantive limitations upon the admission of expert scientific testimony to ensure that unreliable expertise would be excluded from the jury’s consideration.39 Under Kelly, a trial judge must, upon request, conduct a “gatekeeping” hearing outside the presence of the jury to determine whether scientific evidence is sufficiently reliable40 and relevant41 to help the jury in reaching an accurate result. Then the judge must decide whether, on balance, that expert testimony might nonetheless be unhelpful or distracting for other reasons.42 To be considered reliable, evidence from a scientific theory must satisfy three criteria: “(a) the underlying scientific theory must be valid; (b) the technique applying the theory must be valid; and (c) the technique must have been properly applied on the occasion in question.”43 The trial court’s essential gatekeeping role is to ensure that evidence that is unreliable because it lacks a basis in sound scientific methodology is not admitted.44

Forensic psychiatry is certainly a science;45 as Dr. Coons stated, it is prac*274ticed solely by those with a medical degree.46 It may be a “soft science,” but trial courts, in their gatekeeping function, must ensure that the expertise is not only soft, but that it is science as well.47 “Soft” science does not mean soft standards.48 When “soft” sciences are at issue, the trial court must inquire “(1) whether the field of expertise is a legitimate one, (2) whether the subject matter of the expert’s testimony is within the scope of that field, and (3) whether the expert’s testimony properly relies upon and/or utilizes the principles involved in the field.”49

This inquiry is somewhat more flexible than the Kelly factors applicable to Newtonian and medical science.50 “The general principles announced in Kelly (and Daubert) apply, but the specific factors outlined in those cases may or may not apply depending upon the context.”51 Un-der either Daubert/Kelly or Nenno, reliability should be evaluated by reference to the standards applicable to the particular professional field in question.52

Appellant does not quarrel with the first prong — the legitimacy of the field of forensic psychiatry, nor, apparently, with the second prong — Dr. Coons’s testimony is within the scope of forensic psychiatry, but he contends that Dr. Coons’s testimony did not properly rely upon the accepted principles of forensic psychiatry, at least as far as those principles apply to the prediction of long-term future dangerousness.

While the United States Supreme Court (as well as other American courts) has recognized the fallibility of psychiatric assessments of future dangerousness, it nevertheless acknowledged the necessary reliance on psychiatry to assist *275in judicial decisionmaking.53 We reaffirm that such expert testimony may, in a particular case, be admissible under Rule 702 and helpful to the jury in a capital murder trial.54 However, the burden is on the *276proponent of such psychiatric testimony to establish its admissibility in each individual case.55 Science is constantly evolving and, therefore, the Rule 702-703 “gatekeeping” standards of the trial court must keep up with the most current understanding of any scientific endeavor, including the field

of forensic psychiatry and its professional methodology of assessing long-term future dangerousness.56 The objective of the “ga-tekeeping” requirement is to make certain that an expert employs the same professional standards of intellectual rigor in the courtroom as is expected in the practice of the relevant field.57 The validity of the *277expert’s conclusions depends upon the soundness of the methodology.58

C. The Application of Daubert/Kelly and Nenno Principles in This Case.

As the Seventh Circuit observed in Rosen v. Ciba-Geigy Corp., 59 “under the regime of Daubert a district judge asked to admit scientific evidence must determine whether the evidence is genuinely scientific, as distinct from being unscientific speculation offered by a genuine scientist.”60 Here, there is no question that Dr. Coons is a genuine forensic psychiatrist with a lengthy medical career, but the issue under Rule 702 is whether his “future dangerousness” testimony is based upon the scientific principles of forensic psychiatry.

From this record, we cannot tell what principles of forensic psychiatry Dr. Coons might have relied upon because he cited no books, articles, journals, or even other forensic psychiatrists who practice in this area.61 There is no objective source material in this record to substantiate Dr. Coons’s methodology as one that is appropriate in the practice of forensic psychiatry. He asserted that his testimony properly relied upon and utilized the principles involved in the field of psychiatry, but this is simply the ipse dixit of the witness.62 Dr. Coons agreed that his methodology is idiosyncratic and one that he has developed and used on his own for the past twenty to thirty years. Although there is a significant body of literature concerning the empirical accuracy of clinical predictions versus actuarial and risk assessment *278predictions,63 Dr. Coons did not cite or rely upon any of these studies and was unfamiliar with the journal articles given to him by the prosecution.

Dr. Coons stated that he relies upon a specific set of factors: history of violence,64 attitude toward violence, the crime itself, personality and general behavior, conscience, and where the person will be (i.e., the free community, prison, or death row). These factors sound like common-sense ones that the jury would consider on its own,65 but are they ones that the forensic psychiatric community accepts as valid?66 *279Have these factors been empirically validated as appropriate ones by forensic psychiatrists? And have the predictions based upon those factors been verified as accurate over time?67 Some of Dr. Coons’s factors have great intuitive appeal to jurors and judges,68 but are they actually accurate predictors of future behavior? Dr. Coons forthrightly stated that “he does it his way” with his own methodology and has never gone back to see whether his prior predictions of future dangerousness have, in fact, been accurate. Although he had interviewed appellant before the first trial in 1990, Dr. Coons had lost his notes of that interview in a flood and apparently had no independent memory of that interview. He relied entirely upon the documentary materials given to him by the prosecution, including his 1989 report. Dr. Coons, therefore, did not perform any psychiatric assessment of appellant after his eighteen years of nonviolent behavior on death row, nor did he refer to any psychological testing that might have occurred in that time frame.

Based upon the specific problems and omissions cited above, we conclude that the prosecution did not satisfy its burden of showing the scientific reliability of Dr. Coons’s methodology for predicting future dangerousness by clear and convincing evidence during the Daubert/Kelly gatekeep-ing hearing in this particular case.69 We *280conclude that the trial judge therefore abused his discretion in admitting Dr. Coons’s testimony before the jury.70

D. Did Dr. Coons’s Inadmissible Expert Testimony Affect Appellant’s Substantial Rights to a Fair Sentencing Trial?

Having found error in the admission of Dr. Coons’s expert testimony, we must decide whether that error affected appellant’s substantial rights to a fair sentencing trial.71 A substantial right is affected when the error had a substantial and injurious effect or influence in determining the jury’s verdict.72 But if the improperly admitted evidence did not influence the jury or had but a slight effect upon its deliberations, such non-constitutional error is harmless.73 In making a harm analysis, we examine the entire trial record and calculate, as much as possible, the probable impact of the error upon the rest of the evidence74 We consider overwhelming evidence supporting the particular issue to which the erroneously admitted evidence was directed— here, the “future dangerousness” special issue — but that is only one factor in our harm analysis.75 It is the responsibility of the appellate court to assess harm after reviewing the record, and the burden to demonstrate whether the appellant was harmed by a trial court error does not rest on either the appellant or the State.76

*281In his Brief, appellant cites articles that note the high persuasive value of “scientific” expert testimony, especially clinical psychological testimony concerning future dangerousness.77 Indeed, some studies have shown that juror reliance on an expert’s credentials is directly proportional to the complexity of the information represented: the more complex the information, the more the jury looks to the background, experience, and status of the expert himself rather than to the content of his testimony.78 There is also some evidence that jurors value medical expertise higher than other scientific expertise; thus, even when the information is identical, jurors find evidence from a doctor more persuasive than the very same testimony from a psychologist.79 Furthermore, evidence that corresponds to firmly held beliefs may be particularly persuasive to jurors.80 Thus, an expert’s appeal to the juror’s own common sense may be considerably more persuasive than a counterintuitive and complex, but empirically verified, theory.

These studies and articles would support a determination that the erroneous admission of a psychiatrist’s unreliable testimony concerning the defendant’s future dangerousness affects a substantial right to a fair sentencing hearing under Tex.R.App. P. 44.2(b). However, each case must be examined on its own facts, taking into account the specific evidence and the probable impact of the erroneously admitted expert evidence upon the jury’s decision-making in the particular case.

In this case, there was ample evidence that there was a probability that appellant would commit future acts of violence quite apart from Dr. Coons’s testimony. And, as noted above, it was some of that independent evidence that the jury requested to see during its deliberations. First, the psychiatric interview and evaluation done by Dr. Hodges more than twenty years before the offense and forty years before the trial reached the same basic conclusion as Dr. Coons did concerning appellant’s character and his animosity toward women. Dr. Hodges’s 1964 interview and clinical evaluation was completed long before any possible motive to view the facts and events of appellant’s later life through any “future dangerousness” litigation prism had arisen. Expertise that is developed entirely independent of litigation by professionals acting in their normal field is more likely to be considered reliable than expertise developed especially for trials.81 The same is true with the *2821967 military medical report which noted appellant’s “lifelong maladjustment” and his jealous violent rage when he thought that his fiancée was having an affair with someone else. Significantly, the jury asked to see these two reports during its deliberations; it did not ask to see Dr. Coons’s 1989 report. We have often held that erroneously admitting evidence “will not result in reversal when other such evidence was received without objection, either before or after the complained-of ruling.”82 Although neither Dr. Hodges nor the military doctor specifically opined on whether there was a probability in 2008 that appellant would commit acts of future violence, their psychiatric and medical assessment of appellant’s character for violence is remarkably similar to that of Dr. Coons.

Furthermore, Dr. Coons’s testimony was rebutted and refuted by appellant’s expert, Dr. Mark Cunningham, a forensic psychologist. Although Dr. Cunningham is not a medical doctor, he did win the 2005 Texas Psychology Association award for his outstanding contribution to science and, in 2006, he was awarded the American Psychological Association (APA) award for distinguished contributions to research in public policy. Both awards were for his research concerning factors that predict violence in prison and his research in capital sentencing. He is also among the 2,000-3,000 psychologists elected as a Fellow of the APA out of the 155,000 members. He has published a significant number of peer-reviewed studies and articles. He testified, with a PowerPoint slide presentation to illustrate,83 about the violence risk assessment factors that he uses to assess the probability of future dangerousness in prison. His factors are based on research data from prisons, as well as other research and scholarly writings. He explained how his research is “scientific,” replicable, and less subjective: “It’s not based on my gut feeling about something. It’s based on what the data tells me. And so, it’s accurate. It’s reliable.”

After explaining the various studies, data, and statistical analysis, Dr. Cunningham concluded that appellant fell within the lowest risk-of-violence category.84 He *283criticized “the hypothetical inference” mode of predicting future dangerousness as

entirely speculative.... That’s just blind guessing unless those factors have been demonstrated to be predictive of violence in prison. Critically important. ... That’s the problem with not knowing the literature, without knowing anything about the scientific studies that have been done in this area is then you have no idea whether the factors that you’re looking at are predictive of anything or not.

According to Dr. Cunningham, if “what you’re doing is basing it on your own gut and you haven’t done anything to check whether your gut reaction is correct or not, then your accuracy level never improves.”

He pointed to appellant’s first trial as an example of the “tea-leaf-reader” school of subjective clinical assessments. In that trial, Dr. James Grigson,85 who used the same subjective methodology as Dr. Coons, testified that, in his opinion, appellant posed no risk of future violence: “[H]e said, the ladies and gentlemen of the jury are more likely to kill somebody in the future” than appellant. Dr. Coons, using that very same methodology and facts concerning appellant, came to exactly the opposite conclusion.86 Dr. Cunningham also told the jury that the major psychological associations had criticized Dr. Coons and his methodology as “unreliable and inconsistent with the standard of practice.” In sum, Dr. Cunningham refuted Dr. Coon’s expertise and the whole “tea-leaf-reader” notion of clinical psychiatric predictions of future dangerousness.

Furthermore, the prosecution did not rely heavily upon Dr. Coons’s testimony during its closing arguments. Instead, the prosecutor emphasized his position that appellant was exactly the same person that he was when he killed Karen’s parents and her brother back in 1989. He had not changed a bit.87 The prosecutor then went *284on to recount evidence from the murders themselves and appellant’s bragging to Karen afterwards. The prosecutor then turned to the topic of predicting future dangerousness:

Can we predict a person’s future? Well, we absolutely can. You heard what Dr. Hodges said. He made an analysis of it. He talked about how he had a dislike of women, how he had a low opinion of them. Did he? His conduct was absolutely borne out. And Dr. Hodges said the prognosis is poor, and it was, because this person ultimately cares only about himself.

He then recounted how Bobby’s fellow officer had predicted that appellant would commit some violent act after he had been arrested for kidnapping Karen before the murders. He then turned briefly to Dr. Coons:

Dr. Coons examined — first he talked to [appellant] personally before the first trial in 1990. He interviewed him, then he gave his assessment of him. And the assessment is — sure, you deal with medical predictions and the training of psychiatrists — but it’s just common sense. If you don’t have a conscience and you’ve committed dangerous violent acts and you’ve shown that you have no regard for human beings in any form unless it’s something that serves you, of course, there’s a probability that you will commit criminal acts of violence.

The prosecutor then referred to appellant’s expert psychologist, Dr. Cunningham, and how he had called Karen biased for saying that appellant twice gave her an evil grin in two different court appearances. The prosecutor then returned to his theme of appellant’s lack of conscience and how he had simply been restrained, not changed, in prison.

The defense, in its closing argument, quickly focused on the future dangerousness issue as well. Counsel argued that the statistical evidence that Dr. Cunningham had presented made it very difficult for the prosecution to prove that appellant would commit future acts of violence. He compared the two experts:

I want to talk about Dr. Coons versus Dr. Cunningham, because it really does sort of come down to Dr. Coons versus Dr. Cunningham. Dr. Coons is a likable guy. Dr. Coons does an excellent job of testifying. He seems to have a lot of *285horse sense. Okay. He seems to have a lot of common sense. That’s totally true. Dr. Cunningham is extremely long-winded. Okay. He has a hard time sort of answering a question directly. I recognize those facts. But that’s because he is a scientist.88 All right. And Dr. Cunningham talked about being a scientist and what that means. What that means is, I don’t just look at the evidence and make a wild guess. Okay. I’m not a tea-leaf reader. I’m not a guy who says, well, I’m just going to depend on my — my experience and say this person is a future danger — okay—without going back and checking my work, without quantifying things, without being able to say, you know, I’m correct to this certain quantum of correctness.... So he’s a scientist. A scientist comes up with an idea, a theory. Okay. He tests that theory. He doesn’t just test the theory, but he also gives his data to other scientists to look at, so they can test his theory. Then he goes back and double-checks his work. Then he thinks, now, maybe there’s a weakness in my own argument that I’ve already made. Let’s go back and double-check that weakness and see it that changes our numbers or does that reinforce our numbers. All right. So that’s what a scientist is supposed to do.

Do you remember Dr. Coons’s testimony? Dr. Coons, do you check your work? Not really. Dr. Coons, do you remember going back and looking at the records of people that you have predicted are going to be a future danger to see if they really were? Well, I’m sure I’ve done it, but I can’t tell you who I’ve done it with. In other words, he’s a guy who is completely uninterested in whether he’s correct or not....

... How can he ever get better? How can he establish for the jury that his opinion is reliable? He can’t because he’s not a scientist. He’s a tea-leaf reader.

The defense then recapped Dr. Cunningham’s testimony which had been that appellant posed an extremely low risk of committing future acts of violence because (1) he is well-adjusted to institutional life; (2) he is sixty years old and thus has “aged out” of his violent years; (3) he has performed many positive acts and developed a positive attitude toward fellow inmates; (4) he is serving a very long sentence and “40 years of tests” show that long-term inmates are statistically less likely to commit acts of aggression than are “short-term-ers;” (5) he has a GED and additional work certificates; and (6) he has continuing family ties to the community. All of these factors are supported by “the numbers that exist in reality. These are the official numbers. So he’s not making up the numbers. He’s a scientist. He’s just reporting what the data is.” The defense concluded its discussion of “future dangerousness,” with the statement that “Dr. Cunningham’s conclusions are very appropriate and very reasonable and scientific and provable as opposed to Dr. Coons’s conclusions, which are nonscientific and not provable. Okay. And even if they were provable, he hasn’t bothered to go out and try to prove them.” Counsel then moved on to the mitigation issue and appellant’s miserable childhood and youth.

During his final argument, the prosecutor mentioned Dr. Coons very briefly by reminding the jury that another psychia*286trist, Dr. Hodges, had talked to appellant back in 1964 and “he looked at him and listened to his answers” and reached the conclusion that appellant was “extremely hostile to women, very low opinion of women, has poor control, very low self-esteem. Projects a great deal of responsibility for his own actions on other people. It was Karen’s fault that she got kidnapped. It was Karen’s fault because she stood up to him. And it ruined his life. So it was her fault. And he had to extract revenge on her and he did it in the most brutal, the most selfish way he possibly could.” The prosecutor then referred to the military doctor’s assessment from 1967, with both doctors reaching the “same common sense assessment” of appellant.

Based upon the complete record of this ease, we find that the error in admitting Dr. Coons’s testimony did not affect appellant’s substantial right to a fair sentencing hearing because

(1) There was ample other evidence supporting a finding that there was a probability that appellant would commit future acts of violence;89

(2) The same basic psychiatric evidence of appellant’s character for violence was admissible and admitted, without objection, through other, entirely objective, independent medical sources — the reports by Dr. Hodges and the military doctor years before appellant committed these murders; 90

(3) Dr. Coons’s opinion was not particularly powerful, certain, or strong;91 his opinion, coming after an extremely long and convoluted hypothetical was simply that “there is a probability that” appellant would be a continuing threat to society by committing criminal acts of violence;

(4) Dr. Coons’s testimony was effectively rebutted and refuted by Dr. Cunningham, who not only relied upon *287specifically listed scientific materials and data during his testimony, but who also noted that Dr. Coons and his methodology had been criticized by both the American and Texas Psychological Associations; and

(5) The State barely mentioned Dr. Coons during closing argument and did not emphasize him or his opinions.

Given these particular circumstances, we conclude that the error in admitting Dr. Coons’s testimony did not have a “substantial and injurious” effect upon the jury’s deliberations concerning the future dangerousness special issue.92 We therefore overrule points of error three, four, and five.

The Admissibility of A.P. Merillat’s Testimony

In his sixth point of error, appellant claims that the trial court erred in admitting the testimony of A.P. Merillat, an investigator for the Special Prosecution Unit, about the Texas prison classification system and violence in prison. Appellant argues that: (1) Mr. Merillat’s testimony was irrelevant as it did not relate to appellant personally, and (2) this witness testified to information that was already common knowledge among jurors. The State argues that Mr. Merillat’s rebuttal testimony was relevant to refute Dr. Cunningham’s statistical data and to impeach the accuracy of his “low risk” future dangerousness prediction.93 We agree that Mr. Merillat’s testimony was admissible as rebuttal “educator-expert” evidence.

On voir dire, Mr. Merillat stated that his testimony is based on his specialized knowledge of Texas prisons and prison violence during his nineteen years as a criminal investigator with the Special Prosecution Unit. He proposed to testify concerning the under-reporting of prison violence in official data compilations, the prison classification system, and the opportunities for violence inside prison.

The trial judge allowed Mr. Merillat’s testimony, although he granted appellant’s motion in limine to avoid mention of any specific instances of misconduct by other inmates except for one anecdote concerning an inmate’s forced starvation death which served as “a great example for un-derreporting of violence.”

Mr. Merillat then testified before the jury about the inmate classification system and the under-reporting of violence in prison. He also described administrative segregation and how it is used as “punitive housing” for recalcitrant inmates. Mr. Merillat explained why the official prison statistics used by Dr. Cunningham are not completely reliable: (1) the prison reporting system does not match the penal code definitions of “violent” behavior;94 and (2) *288not all incidents of inmate-on-inmate incidents of violence are reported. Finally, he told the jury that, in the last few years, his unit had prosecuted 94 inmates who were serving life sentences for capital murder for both assaultive and non-assaultive felonies.

On cross-examination, Mr. Merillat agreed that he knew nothing about appellant except that his office had never prosecuted him. He agreed that he was not qualified to express any opinion regarding appellant’s “future dangerousness.” He also explained how death row inmates “had the run of the row” and could work in the garment factory when death row was in the Ellis Unit. Mr. Merillat agreed that the point of his testimony was that there are abundant opportunities for inmates to be either violent or good, depending upon their own decisions.

Appellant asserts that the primary subject of Mr. Merillat’s testimony— opportunities for violence in prison — is within the common knowledge of the jurors. Indeed, most jurors probably have some understanding that violence can and does occur in prison, but a trial court need not exclude expert testimony when the general subject matter is within the comprehension of the average juror, as long as the witness has some specialized knowledge on the topic that will “assist” the jury.95 It is only when the expert offers no appreciable aid that his testimony fails to meet the Rule 702 standard.96 The question under Rule 702 is not whether the jurors know something about this subject, but whether the expert can expand their understanding in a relevant way.

In this case, Mr. Merillat confined his testimony to specific information about the operations of the Texas prison system and the opportunities for violence or productive behavior. His expert testimony was intended to (1) educate the jury about an area in which it lacked a thorough understanding; 97 and (2) cast doubt upon the official prison data that Dr. Cunningham relied upon. Mr. Merillat acted “as an advisor to the jury, much like a consultant might advise a business[.]”98 Because Mr. Merillat’s testimony was edueator-exper-*289tise information designed to “assist” the jury under Rule 702, the trial judge did not abuse his discretion in admitting it. Point of error six is overruled.

In point of error seven, appellant contends that the trial court erred by allowing Mr. Merillat to testify to hearsay information in violation of the Confrontation Clause99 and of the Texas Rules of Evidence. Out of six instances in which appellant claims that Mr. Merillat testified to hearsay information, we have found only three trial objections based on hearsay or the Confrontation Clause. We will address only those three instances:

(1) Appellant objected on the basis of hearsay to Mr. Merillat’s statement that 78 serious staff assaults were documented in the official prison report that Dr. Cunningham had used as the basis for his statistical analysis;

(2) Appellant objected on the basis of hearsay and the Confrontation Clause to Mr. Merillat’s explanation of why inmate-on-inmate violence is under-reported — nobody wants to be a “snitch” which is the “very lowest form of life in the penitentiary”; and

(3) Appellant objected on the basis of hearsay and an inability to confront and cross-examine when Mr. Meril-lat cited the story of an inmate who had been beaten and starved to death by his stronger, gang-member cellmate, as an example of why and when fellow inmates fail to report acts of violence.

The trial judge properly overruled these three hearsay and confrontation objections.

Hearsay is an out-of-court statement by a person offered for the truth of the matter asserted.100 None of these three pieces of testimony fits that definition. In the first, Mr. Merillat was not offering his statement of the official prison data compilation of “78 serious staff assaults” for the truth of the matter asserted — that there were 78 serious staff assaults in the previous year. Quite the reverse. Mr. Meril-lat’s point was that the official number of 78 was significantly lower than the actual number of serious assaults and thus the official prison statistics that Dr. Cunningham used as the basis for his expert opinion were inaccurate.101 In the second, the testimony concerning why assaults upon inmates aren’t reported “because by telling on the person who did it, they are going to be much worse off[,]” Mr. Merillat did not disclose any out-of-court statement.102 He was simply explaining, as a general proposition, why inmates do not “snitch” on each other. In the third, the inmate who was beaten and starved to death, appellant does not point to any out-of-court statement. There is none. Mr. Merillat was recounting an event, not a verbal or writ*290ten statement. He may have first heard of the event by someone telling him of it,103 but he did not recite or imply any out-of-court statements.104 Because the trial judge did not abuse his discretion in overruling appellant’s hearsay and confrontation objections, we overrule point of error seven.

In his eighth point of error, appellant asserts that Mr. Merillat’s testimony was inadmissible because of the Eighth Amendment’s “heightened reliability” requirement in capital murder prosecutions. Appellant fails to cite any authority for increasing the admissibility requirements for evidence in a capital murder sentencing trial. Indeed, some state and federal courts have suggested that the Confrontation Clause, the Rules of Evidence, and the rule against hearsay do not apply with full force in capital murder sentencing trials.105 We express no opinion on that matter, but we reject appellant’s Eighth Amendment claim and therefore overrule point of error eight.

Emotional Outbursts by Two Witnesses

In points of error nine and ten, appellant claims that the trial court erred in denying his motion for a mistrial when Karen Vicha and Lorna Sawyer made separate emotional outbursts during the punishment trial. In each case, the trial judge sustained appellant’s objection to the outburst and instructed the jury to disregard the remarks. We conclude that the trial court did not abuse his discretion in these rulings.

During Karen Vicha’s testimony describing what appellant told her about how he had chased and shot her brother, she explained that

[Appellant] started talking about — he told me, you’re pretty tough, you put up a good fight with that gun. And he said, *291your brother thought — he said, your brother thought he was tough too. He said, all cops think they’re tough, but he thought he was really tough. He said— he said — he told me he said, all I was trying to do was keep you away from my sister. And he said, I finally had to shut him up and blow a hole that big in his neck.

At that point, Karen broke down crying and said, “And I hate you for making me go through this again and my kids. You’re mean.” The trial judge immediately called a recess.106 When the jury returned, the trial judge instructed them: “Ladies and gentlemen of the jury, at this time I am going to give you an instruction to disregard the last comment of the witness and not consider it for any purpose whatsoever.” He denied appellant’s motion for mistrial, and the prosecutor continued with his questions.

After six more witnesses had testified, the State called Lorna Sawyer, appellant’s cousin. As soon as she had been sworn in, but before any questioning, she burst out, “Evil piece of shit.” The defense immediately responded: “Judge we object. Call for a mistrial. Request an instruction to disregard. Call for a mistrial.” The Judge said, “I’ll instruct the jury to disregard the last comment of the witness,” and Ms. Sawyer said, “Sorry.” When appellant then requested that she be excluded as a witness, the trial judge took a recess.107

"When the jury returned, Ms. Sawyer testified that appellant offered her a job at a drive-in theater when she was 16. She had worked there for about two and a half weeks when appellant picked her up for work, but he took her to his house and raped her instead. She was so scared that she had never told anyone, except her sister, about this experience. When the prosecutor asked Ms. Sawyer if she was still afraid of appellant, the following occurred:

Witness: Actually, uh, without being ugly, I’d like to go there and just knock the shit out of him.

Defense: Judge, I’m, going to have to object, Your Honor. I think that was an inappropriate comment.

Witness: It is not inappropriate.

Defense: I’d object to the sidebar from the witness. Judge. I’d ask that— the jury to disregard.

*292Court: The jury is instructed to disregard the last comment of the witness and not consider it for any purpose.

Defense: I’d ask for a mistrial, You Honor.

Court: That’s denied.

State: Lorna—

Witness: I’m sorry, I’m sorry.

And the testimony then continued.

Appellant argues that these outbursts, individually or collectively, unfairly influenced the jury and that influence could not be limited by an instruction to disregard.

A trial judge’s denial of a motion for mistrial is reviewed under an abuse of discretion standard,108 and his ruling must be upheld if it was within the zone of reasonable disagreement.109 We have held that an outburst from a bystander or witness “which interferes with the normal proceedings of a trial will not result in reversible error unless the defendant shows that a reasonable probability [exists] that the conduct interfered with the jury’s verdict.”110 In the context of such outbursts, the trial judge’s instructions to disregard are generally considered sufficient to cure the impropriety because it is presumed that the jury will follow those instructions.111

Appellant relies upon Stahl v. State112 for his claim that the judge’s instruction to disregard the spontaneous outbursts could not have cured their prejudicial effect and those outbursts must have interfered with the jury’s verdict. But Stahl was decided upon the basis of prosecutorial misconduct, not merely the witness’s emotional outburst. In Stahl, the prosecutor called the victim’s mother to the stand, knowing that she was prone to emotional outbursts, and asked her to identify a photograph of her dead son.113 She burst into tears and yelled, “Oh, my god. My baby. My God.... May he rest in hell. May he burn in hell. Oh, my baby.”114 The judge instructed the jury to disregard, but the prosecutor “exacerbated” the impact by repeatedly referring to the incident in closing argument.115 The prosecutor’s “deliberate” and “persistent” conduct, “in direct contravention of prior rulings by the judge” indicated “a desire to impermissibly sway the jury.”116 Indeed, the court of appeals had suggested that the Stahl prosecutor “actually orchestrated the original *293outburst.”117

In this case, however, there is no suggestion that the prosecutor anticipated the short emotional outburst by Ms. Vicha in the middle of her lengthy testimony or the entirely inappropriate start of Ms. Sawyer’s testimony. In the first instance, the prosecutor agreed with the correctness of an instruction to disregard and, in the second, he did not attempt to justify Ms. Sawyer’s outburst.118 The trial judge immediately instructed the jury to disregard those outbursts, and we must presume that the jurors followed these instructions.119 The prosecution did not refer to, or attempt to capitalize upon, the outbursts during closing arguments. Furthermore, they occurred during the sentencing stage of a capital murder trial, not the guilt stage as in Stahl. At the punishment hearing, evidence of the defendant’s character is both relevant and admissible as is the opinion testimony concerning good or bad character traits by those who know him.120 Obviously, character evidence must be offered in a proper form and be responsive to specific questions, so these outbursts were not proper, but their potential for prejudice was less than had they occurred during the guilt phase of a trial.

Because we conclude that nothing in the record suggests that the outbursts were of such a nature that the jury could not follow the trial judge’s instructions to disregard them,121 we overrule appellant’s points of error nine and ten.

The Admission of the Hearsay Statement by a Witness’s Sister

In his eleventh point of error, appellant claims that the trial judge erred in admitting Amy Zuniga’s testimony that her sister, Karen, told her that appellant was looking in her bedroom window as she was dressing. Appellant objected to hearsay, but the trial judge admitted Amy’s testimony as both an excited utterance and a present sense impression. We conclude that the trial judge did not abuse his discretion in finding that Karen’s out-of-court statement was admissible as an excited utterance exception to the hearsay rule.122

Amy Zuniga testified that appellant was her uncle and, when she was young, she thought he was a model of how a parent should be because he was so nice to his own son. However, Amy changed her mind about appellant when she was fifteen. She explained that one day she was sitting in a rocking chair in her nightgown, when appellant came in and pulled her legs apart; then he made “a vulgar display like he was licking me” between her legs. After that, she avoided him. But right before appellant moved into Amy’s mother’s home shortly before the murders, Amy came out of the shower and was changing her clothes in her bedroom when she heard a “commotion from the kitchen, a beating on the window.” Then Karen ran through Amy’s bedroom door from the kitchen, went outside through her back bedroom door, and started yelling. Amy *294peeked out through the curtains and saw appellant driving off in his truck. Then Karen came back inside, “very mad and frustrated. She was red, angry.” Karen told Amy that she had seen appellant outside looking through the curtains as Amy was dressing.

The trial judge admitted Karen’s out-of-court statement to Amy based on it being both an excited utterance and a present sense impression. We need examine its admissibility only under the excited utterance exception. An excited utterance is a statement that relates to a startling event or condition, and it is made when the declarant is still under the stress of excitement caused by the event or condition.123

Appellant contends that Karen’s statement was not admissible as an excited utterance because there was no showing that she was in the “grip of violent emotion, excitement or pain.”124 She was angry, not excited. The critical question, however, is not the specific type of emotion that the declarant is dominated by — anger, fear, happiness — but whether the declarant was still dominated by the emotion caused by the startling event when she spoke.125 Appellant also argues that Karen’s statement was not admissible because there was no independent evidence of the startling event — appellant’s “Peeping Tom” conduct. Appellant cites to a Texas Supreme Court case, Richardson v. Green,126 which applied the common-law “res gestae” rule. But Rule 803(2) changed the common law; the current rule does not require independent evidence of the exciting event before the trial judge may admit the declarant’s statements relating to that event.127 The trial judge decides, under Rule 104(a), whether there .is sufficient evidence to prove an exciting event, and he may consider the statement itself in making that decision.128 Here, for example, the trial judge could consider the *295evidence that Amy said that she (1) heard her sister banging on the kitchen window, (2) saw Karen run through her bedroom and out the door, and (3) saw appellant driving off just before Karen returned to tell her that appellant was peeping in her bedroom window. That evidence, when combined with Karen’s statement, would support a finding of the startling event— appellant’s “Peeping Tom” conduct.129

Because we conclude that the trial court did not abuse his discretion in admitting Karen’s excited utterance, we overrule appellant’s eleventh point of error.

Miscellaneous Claims

A. Limitation of Voir Dire Questions

In his twelfth point of error, appellant claims that the trial court erred in limiting his voir dire by refusing to allow him to question the jurors about the mitigation value of specific facts, including evidence of a troubled childhood, mental illness or extreme emotional distress, community service, age, kindness to others, work ethic, or military service. The State objected, citing Standefer v. State, 130 Sells v. State, 131 and Wingo v. State, 132 and stated that these were commitment questions. The trial judge sustained the State’s objections, but allowed more general mitigation questions about whether there was anything that the jurors “could consider under the circumstances of having found [appellant] a future danger to society which might merit a life penalty.”

In Raby v. State, we rejected appellant’s claim that he is entitled to ask potential jurors in a death penalty case about what specific evidence that juror could or would consider as mitigating.133 We stated that “[a] trial court does not abuse its discretion by refusing to allow a defendant to ask venire members questions based on facts peculiar to the ease on trial (e.g. questions about particular mitigating evidence).” 134 Appellant does not persuade us that Raby was wrongly decided. We therefore overrule appellant’s twelfth point of error.

B. The Mitigation Instruction

In his thirteenth point of error, appellant claims that the trial court erred by refusing to instruct the jurors that they need not unanimously agree on what particular evidence supports an affirmative finding on the mitigation issue. Appellant invokes Mills v. Maryland135 in support of *296his argument. We addressed and rejected this same argument in Segundo v. State, 136 and appellant has not persuaded us that Segundo was wrongly decided. We over-rale his thirteenth point of error.

C. The Definition of Mitigating Evidence

In his fourteenth and fifteenth points of error, appellant argues that the trial court should not have given the jury the statutory definition of mitigating evidence “as evidence that a juror might regard as reducing the defendant’s moral blameworthiness.”137 This same claim was rejected in Roberts v. State, 138 and appellant’s arguments do not persuade us to overrule that case. He also contends that the trial judge should have instructed the jury that there need be no nexus between the mitigating evidence and the capital murder because the mandatory statutory definition, he argues, implies that there must be a connection between the reduced moral blameworthiness and the capital offense itself. We do not see any “nexus” requirement in the statutory definition. Appellant relies upon Tennard v. Dretke,139 but the Supreme Court, in that case, simply chastised the Fifth Circuit for requiring a nexus between the crime and the mitigating evidence.140 It never suggested that a jury can, should, or must be instructed not to consider any nexus between the crime and the mitigating evidence. Such an instruction would be necessary only if the jury would be reasonably likely to infer a nexus requirement from the statutory words.141 That is not the case. We overrule appellant’s fourteenth and fifteenth points of error.

D. The Mitigation Issue

In his sixteenth point of error, appellant relies on Apprendi142 and Ring143 to argue that Article 37.0711 is unconstitutional because it fails to require the State to prove beyond a reasonable doubt that there are no mitigating circumstances that warrant a life sentence. He fails to mention that this Court has rejected that claim in numerous cases,144 and- he fails to persuade us that our prior decisions were mistaken.

In his eighteenth point of error, appellant claims that the Texas death-penalty scheme is unconstitutional under Penny II,145 because the mitigation issue sends *297“mixed signals” to the jury, thus rendering any finding reached on that special issue unreliable. Penry II is distinguishable because, in that case, the jury was given a judicially crafted nullification instruction.146 Here, the jury was given the statutorily mandated mitigation question, which does not contain a nullification instruction. No error exists, and we have repeatedly rejected this claim.147 We overrule appellant’s eighteenth point of error

E. Constitutional Challenges to Art. 37.0711

In his seventeenth point of error, appellant contends that the Texas death-penalty statute gives the jury too much discretion and therefore permits arbitrary and inconsistent application of the ultimate penalty. We have repeatedly rejected this claim and appellant does not persuade us to overrule these prior eases.148 In fact, he fails to mention them.

In his nineteenth and twentieth point of error, appellant argues that the jurors should have been instructed on the consequences of a hung jury so that they would immediately stop deliberating if a single juror voted in appellant’s favor on an issue that required unanimity. He also argues that the jurors should not have been instructed on the “10-12” Rule. Although appellant fails to mention controlling precedent from this Court, we have repeatedly rejected these claims.149 We do so again.

In his twenty-first through twenty-third points of error, appellant argues that the statutory “future dangerousness” special issue is unconstitutional because the terms “probability,” “criminal acts of violence,” and “society” are not defined. We have repeatedly rejected these claims,150 and, although counsel suggests that we should revisit this precedent, we decline to do so.

In his twenty-fourth point of error, appellant contends that the statutory “future dangerousness” special issue violates the Eighth Amendment because no one can reliably predict whether another person will commit acts of violence in the future and therefore this is an arbitrary factor. The “future dangerousness” aggravating factor has been recognized by the Supreme Court as properly narrowing the jury’s consideration to ensure individualized sentencing as recently as two years ago in Kennedy v. Louisiana. 151 Although *298appellant asserts that only one other state, Oregon, requires a finding of future dangerousness in his effort to prove that a “national consensus” has developed against imposing the death penalty based on that factor, he fails to note that twenty-one other states include a defendant’s possible future dangerousness among the aggravating circumstances to be considered at the sentencing stage of a capital case.152 Furthermore, we have previously rejected this claim,153 and we are not persuaded by appellant’s arguments that our precedent should be overruled.

In his final point of error, appellant claims that the “future dangerousness” statutory scheme violates the Texas constitutional ban on cruel or unusual punishment. As appellant acknowledges, we have already rejected this argument.154 Appellant asserts that we now have before us his “evidence” that the “future dangerousness inquiry results in inaccurate, unreliable, arbitrary and disproportionate determinations.” His evidence is the citation to an article written by the Texas Defender Service,155 an advocacy group that represents inmates on death row. This is not the type of “evidence” upon which we can base a finding that the “future dangerousness” special issue is necessarily an unreliable factor to use in determining whether a life or death sentence is appropriate. Evidence proves historical facts; the “future dangerousness” special issue is a normative assessment mandated by the legislature and determined by the jury. Questions about its “appropriateness” as a factor in determining a life or death sentence should be addressed to the legislature. Furthermore, the article speaks of psychiatric predictions, not of the unreliability of jury verdicts. We overrule appellant’s twenty-fifth point of error.

Having found no reversible error, we affirm the trial court’s judgment and sentence.

MEYERS, J., joined except for points of error 3 and 4.

KELLER, P.J., filed a concurring opinion in which MEYERS and KEASLER, JJ., joined.

HERVEY, J., concurred.

KELLER, P.J.,

filed a concurring opinion in which MEYERS, and KEASLER, JJ., joined.

Rule 702 is not just about scientific evidence:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qual*299ified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.1

We recognized in Nenno that expert testimony can be of the “nonscientific” variety, but that, in any event, it might not be fruitful to draw “a rigid distinction between ‘hard’ science, ‘soft’ sciences, or nonscientific testimony” because the “distinction between various types of testimony may often be blurred.”2 In Griffith, we explained that future dangerousness testimony can be provided by a mental health expert based upon the expert’s “specialized education and experience.”3

Rule 702 was meant to “relax the traditional barriers to opinion testimony.”4 The rule steered courts away from Frye’s5 “general acceptance” standard6 toward determining whether the expert’s testimony would be helpful to the trier of fact.7 For evidence to be helpful to the trier of fact, it must be reliable, but reliability need not always be measured with the rigor that is applied to the hard sciences.8 The reliability inquiry is “a flexible one.”9 And even if “the subject matter is within the comprehension of the average jury,” “[i]f the witness has some special knowledge or additional insight into the field that would be helpful, then the expert can assist the trier of fact to understand the evidence or to determine a fact in issue.”10 Expert testimony that encompasses a field outside of the hard sciences is admissible if: (1) the field of expertise is a legitimate one, (2) the subject matter of the expert’s testimony is within the scope of the field, and (3) the expert’s testimony properly relies upon and/or utilizes the principles involved in the field.11

As the Court has observed, Dr. Coons is a psychiatrist who has been practicing forensic psychiatry for thirty-one years. He has evaluated the competency or sanity of between 8,000 and 10,000 people, he has performed approximately 150 evaluations of future dangerousness, and he has testified in approximately fifty cases. As the Court acknowledges, the record further shows that psychiatric principles are commonly used in the civil commitment context to determine whether a person poses a danger to himself or others. I would add that the record also shows the following: First, while clinical practice is a relatively small part of Dr. Coons’s work, he has treated over 3,000 patients. Second, Dr. Coons subscribes to two journals in forensic psychiatry, goes to annual meetings, and has lectured on forensic psychiatry at the University of Texas Law School, at various attorney associations, and at continuing legal education seminars.

With respect to assessing future dangerousness, Dr. Coons’s educational baek-*300ground and his prior experience place him in a better position than the average juror. As Dr. Coons explained at trial:

I don’t know that there’s any specific rule or external measure, um, other than to say that, you know experience is — is important in these matters. It’s just like you go to the jail and you talk to a corrections officer and they say, So and so is dangerous. Why? I just know they are, or some things that they’ve said, or whatever. Uh, and they’ve had experience with that. Forensic psychiatrists have had experience with however many people they’ve seen or cases they’ve dealt with. And they develop an experiential body of knowledge and information and approach that helps them make their decisions.

In making his assessment, Dr. Coons relied upon information from a variety of sources: an interview with Lorna Sue Sawyer; a vital statistics death certificate regarding Arthur Coble; a note from a senior criminal investigator with the prosecutor’s office; a narrative summary from the Naval Hospital at San Diego regarding appellant; a report from Clay Griffith, M.D.; a timeline prepared by the prosecutor’s office; appellant’s military personnel records; testimony from appellant’s prior trial from Dr. Grigson, Mary Ivey, and Dr. Mark; appellant’s writings from the Po-lunsky Unit; the grand jury testimony of appellant’s mother and sister; incoming and outgoing mail from the county jail; and a report from Dr. Ralph Hodges.12 Dr. Coons explained that he always uses the same factors in evaluating dangerousness and has done so for at least twenty years.

The evidence at trial — Dr. Coons testimony — shows that forensic psychiatry is a legitimate field, that predicting future dangerousness is within the scope of that field, and that using education and experience to assess future dangerousness is a proper application of the principles involved in the field. Notably, appellant has presented no evidence to the contrary. The Court faults Dr. Coons for failing to cite “books, articles, journals, or even other forensic psychiatrists who practice in this area” to substantiate his methodology, while acknowledging that Dr. Coons is “a genuine forensic psychiatrist with a lengthy medical career.”13 But appellant did not introduce any “books, articles, journals, or even other forensic psychiatrists” to testify that, contrary to Dr. Coons’s testimony, Dr. Coons’s experience-based method of evaluating future dangerousness is inappropriate.14

*301I would hold that the trial court did not err in admitting Dr. Coons’s testimony. I therefore concur in the Court’s judgment.

OPINION ON STATE’S PETITION FOR DISCRETIONARY REVIEW

BENAVIDES, Judge.

The appellant, Audrey Meador, was convicted by a jury of criminal solicitation of capital murder. See Tex. Penal Code Ann. § 15.03(a) & § 19.03(a)(3). The jury assessed punishment at life imprisonment and a $10,000.00 fine, which is within the proper range of punishment for a felony of the first degree. See Tex. Penal Code Ann. § 15.03(d)(1) & § 12.32. The Court of Appeals held the trial court erred when it admitted a taped telephone conversation into evidence because it contained inadmissible hearsay and, finding that the error was not harmless, reversed the conviction and remanded the case for a new trial. See State v. Meador, 811 S.W.2d 612 (Tex. App.-Tyler 1989). We granted the State’s petition for discretionary review on the sole issue of whether the court of appeals erred when it held that a taped telephone conver*331sation was erroneously admitted into evidence because it failed to meet the requirements of Tex.R.Crim.Evid. 801(e)(2)(E). We will affirm the court of appeals.

The evidence reflects that Wayne Hutson was murdered the night of September 17, 1985 and law enforcement officers discovered his body on September 18, 1985 in the back of his own van which was parked on an isolated oil well field just outside Long-view. He died from one gunshot wound to the chest.

The State’s case was based on the theory that appellant paid two individuals, Ben Sheffield and Titus McKee, to kill Wayne Hutson. Appellant was to pay McKee and Sheffield $6,000. that they in turn would divide in payment for their respective roles in the offense. Sheffield’s1 role was to locate someone who would agree to be the “triggerman” and to see that the murder was carried out. Sheffield was an intermediary between appellant and McKee, who was the “triggerman,” although appellant had spoken directly to McKee on occasion.

The first significant lead in the investigation of Hutson’s murder case came from information provided by Ben Sheffield, in jail at that time on an unrelated delivery of controlled substances charge. Sheffield contacted Larry Ray Smith, Captain of the Criminal Investigation Division of the Gregg County Sheriff’s Department, through an attorney and ultimately a statement was taken from Sheffield in which McKee was implicated in the murder of Hutson. The Gregg County District Attorney’s office entered an agreement with Sheffield that he would receive a reduced sentence if he would furnish information that would lead to an arrest in the Hutson murder case but that all deals would be off if it was later found that Sheffield was involved in the murder. Sheffield told police that McKee killed Hutson but denied any involvement on his part. Titus McKee was arrested and indicted for the offense of capital murder for the death of Hutson based on the information supplied by Sheffield. Sheffield testified against McKee at an examining trial held for McKee.

After spending five months in jail on capital murder charges and professing his innocence, McKee gave the police a written confession which implicated Sheffield and appellant. Although all parties concerned denied any agreement between the State and McKee, the charge against McKee was reduced from capital murder to murder after McKee gave his confession implicating the others.

The record shows that McKee’s May 2, 1986 oral statements and his written confession provided the information which brought about appellant’s arrest and her initial indictment for capital murder. The capital murder charge was then abandoned and appellant was indicted for solicitation of capital murder, for which offense she was convicted and is the subject of this appeal.

Sheffield, who was indicted for the capital murder of Hutson, did not testify at appellant’s trial. As the court of appeals opinion correctly points out, the only direct testimony of appellant’s alleged solicitation of McKee to kill Hutson for money came from the mouth of the accomplice witness, Titus McKee.2

At issue in this case is the admissibility of a taped telephone conversation between Sheffield and McKee which was admitted into evidence. On May 7, 1986 Larry Ray Smith, Captain of the Criminal Investigation Division of the Gregg County Sheriff’s Department, set up a recorded telephone call where McKee would call Sheffield and engage in conversation that would hopefully implicate appellant. At this time McKee was in the custody of the Gregg County Sheriff and an inmate of the Gregg County Jail on charges of capital murder for the murder of Hutson. Smith testified to the circumstances surrounding the taping of the telephone conversation. Smith testified that on May 7, 1986 (7 months and twenty-two days after the murder) he attached a *332recording device to the telephone in his office. Present were McKee, Smith, Melinda Ellis and another law enforcement officer. Smith dialed the telephone number of Sheffield’s brother for the purpose of getting Sheffield’s telephone number. Melinda Ellis, another employee of the Gregg County Sheriff’s Department, acted as a telephone operator to make it appear that the call was being made from the Gregg County Jail since all calls from inmates must be collect calls.

Sheffield, who happened to be at his brother’s house at the time the call was made, picked up the phone. McKee proceeded to ask Sheffield if he would contact “the lady” to ask her if she would provide assistance in raising money for McKee’s bond and attorney’s fees. Sheffield’s reply was “I don’t know, I can check you know” and “I can check.”3 The State contends that “the lady” actually refers to appellant. There was testimony from Officer Smith and Officer Anderson that Sheffield was seen at the Oil Bowl (a bowling alley at which appellant worked) soon after this telephone conversation was taped, but was never actually seen talking with appellant.4

The Twelfth Court of Appeals held that the trial court erred in admitting the tape into evidence, over a timely objection, because the conversation did not qualify as a statement by a coconspirator during the course of the conspiracy and in furtherance thereof and therefore failed to meet the requirements of Rule 801(e)(2)(E), supra.

The question presented is whether this statement meets the requirements of Tex.R.Crim.Evid. 801(e)(2)(E), which provides: (e) a statement is not hearsay ***** (2) jf ⅛6 statement is offered against a party and is * * * (E) a statement by a co-conspirator of a party during the course and in furtherance of the conspiracy. When two or more people take part in the commission of a felony, evidence of a conspiracy is admissible even though the substantive crime of conspiracy is not charged. See Roy v. State, 608 S.W.2d 645, 651 (Tex.Cr.App.1980). Moreover, the coconspirator exception to the hearsay rule is similarly not limited to prosecutions for conspiracy; it is a rule of evidence applicable to any offense. See Id. The court of appeals found that the statements were made neither “during the course” nor “in furtherance” of the conspiracy.

The State first attacks the court of appeals finding that the statements were not made “during the course” of the conspiracy. In so finding, that the statements were not made during the course of the conspiracy, the court reasoned that the State’s evidence was insufficient to prove that any promised remuneration under the conspiracy due the accomplices was unpaid at the time the statements were made and therefore the conspiracy had terminated. The State, however, points to various post-murder payments received by McKee and McKee’s wife to support its contention that the conspiracy was still ongoing at the time the statements were made. The State contends that these payments were part of the remuneration appellant had promised McKee for his part in the murder of Hut-son. The State presented evidence that appellant, after the murder had occurred, told McKee that she would pay for his lawyer and help support his wife. The record reflects that the last money received by either Gail or Titus McKee was a payment of five hundred dollars mailed in an envelope postmarked May 2, 1986, just five days prior to the taping of the telephone call.5 By all the foregoing evidence the *333State contends that the conspiracy was still ongoing at the time telephone conversation was taped, and that the court of appeals erred by finding otherwise.

While the State’s argument has some appeal we need not reach it since we cannot, in any event, reasonably find that McKee’s conversation with Sheffield was “in furtherance” of the conspiracy. The Texas Rules of Criminal Evidence became effective September 1, 1986. The cases on which the State relies, predate the promulgation of the rules.6 In cases decided before the effective date of the Rules of Evidence the “in furtherance” requirement of the “coconspirator rule” was either not recognized at all or if recognized, its interpretation was unsettled. See Williams v. State, 790 S.W.2d 643 (Tex.Cr.App.1990). However, this issue was settled in Williams where this Court held that the “in furtherance” of the conspiracy requirement of Rule 801(e)(2)(E) is a separate requirement that must be met in addition to the requirement that the statement be made “during the conspiracy.” The proponent of the statement has the burden of showing, by a preponderance of the evidence, that the statement does in fact meet the requirements of Rule 801(e)(2)(E). See Bourjaily v. United States, 483 U.S. 171, 175, 107 S.Ct. 2775, 2779, 97 L.Ed.2d 144 (1987); Ward v. State, 657 S.W.2d 133, 136-137 (Tex.Cr.App.1983).

It is the State’s contention that appellant agreed to pay McKee’s attorney’s fees and bail if McKee were arrested and since Sheffield and McKee discussed attorney’s fees and bail in the taped telephone conversation, the conversation was in furtherance of the conspiracy and thus admissible under Rule 801(e)(2)(E), supra. Appellant, on the other hand, contends that the statements were not made “in furtherance of” the conspiracy due to the fact that both Sheffield and McKee were cooperating with police at that time and that the statements were self-serving.

As we previously stated, the “in furtherance” of the conspiracy requirement of Rule 801(e)(2)(E) is a separate requirement that must be met in addition to the requirement that the statement be made “during the conspiracy.” See Williams v. State, supra, (some substance must be given to the rule’s requirement, not only that the statement was made “in the course” of the conspiracy, but also that it was made “in furtherance” thereof.) A conspiracy has been referred to as a partnership in crime; to-wit: “What one does pursuant to their common purpose, all do, and as declarations may be such acts, they are competent against all.” See Weinstein’s Evidence, Volume 4, p. 801-310, 1990.

In the present case, however, the statements were made to frustrate rather than further the common objectives of the conspiracy. Both participants in the telephone call, Ben Sheffield and Titus McKee, were working with law enforcement authorities at the time it was taped. Titus *334McKee had been indicted for the capital murder of Hutson and had been in jail for five months. After spending five months in jail, McKee recanted his claims of nonin-volvement in the murder and instead gave police a written confession which implicated appellant and Sheffield. McKee then agreed to place the telephone call which is at issue in this case for the specific purpose of eliciting statements from Sheffield that would implicate appellant. Moreover, Ben Sheffield was also cooperating with the police for the promise of a reduced sentence on his drug charge and in fact had turned McKee in to the police in the first instance. Sheffield had in fact testified against McKee at his examining trial.

Under the circumstances presented here it is clear that the statements made during the recorded telephone conversation neither advanced the cause of the conspiracy nor served in any way to facilitate the conspiracy. See Deeb v. State, No. 69,551 Slip Opinion p. 7 (Tex.Cr.App., June 26, 1991). It is equally clear that neither of the two alleged conspirators involved in this conversation were attempting to further any interests other than their own. See United States v. Meacham, 626 F.2d 503, 511 n. 8 (5th Cir.1980) (Where particular defendant’s statements during recorded telephone calls were made not in furtherance of conspiracy but, rather, to assist in bringing coconspirator to justice or provide bogus defense in event of prosecution, such statements were not admissible under Fed. R.Evid. 801(d)(2)(E)); United States v. Smith, 578 F.2d 1227 (8th Cir.1978) (tape recording of conversation between two conspirators who were no longer members of the conspiracy should not have been admitted against third coconspirator); United States v. Lang, 589 F.2d 92 (2nd Cir.1978) (Taped conversation between undercover agent and witness that refused to testify at trial was not admissible against defendant because statement could not be viewed as furthering conspiracy); United States v. Kindle, 925 F.2d 272 (8th Cir.1991) (Statements made to law enforcement officer after coconspirator’s arrest were not in furtherance of conspiracy).7

Although we are not ruling that statements made by a conconspirator after arrest will necessarily be inadmissible, we find, under the facts of this case, that the conduct and interests of Ben Sheffield and Titus McKee were in such direct conflict with those of appellant, that the policies of Tex.R.Crim.Evid. 801(e)(2)(E) would not be furthered by admitting into evidence, against appellant, statements contained in the tape recorded conversation.

The court of appeals reversed the conviction because it was unable to conclude, beyond a reasonable doubt, that the error in admitting the telephone conversation made no contribution to appellant’s conviction. The harm analysis made by the court of appeals is not assailed before this court. Accordingly, the judgment of the court of appeals is affirmed.

McCORMICK P.J., concurs in the result.

APPENDIX

Unidentified: Hello.

Operator: Collect call from Titus McKee. Will you accept?

Unidentified: Yes, I’ll accept.

McKee: Hello.

Unidentified: Hey.

McKee: How’s it going?

Unidentified: Okay. You all right?

McKee: Yeah, I’m tired of sitting. You got Ben’s phone number?

Unidentified: Ben?

McKee: Yeah.

Unidentified: Yeah. You want to talk to him?

McKee: Yea, I need to.

*335Unidentified: Just a minute. Ben. Believe it or not, he was just fixing to pull off, Titus.

McKee: Good.

Unidentified: Just fixing to pull off out there, outside there. What’s going on?

McKee: Nothing much. Had a long sit ...

Unidentified: Shit, I hear you.

McKee: —sitting here a long time.

McKee: Yeah.

Sheffield: But do you know who paid, or what?

McKee: Yeah, it has been.

Sheffield: Huh?

McKee: Yeah, I brought that eleven hundred over there that night? For all that.

Sheffield: Well, I don’t know. I’d see Dee and she if she’s got them. I guess she’s still got them. I don’t even know. I ain’t never paid no attention. I ain’t never paid no attention.

McKee: Say, you don’t think that somebody will make my bond, do you?

Sheffield: How much is your bond?

McKee: Well, it’s at $100,000. right now.

Sheffield: Can’t you get a lawyer and get it down?

McKee: Well, I don’t know. I just wanted — I don’t know how much I can get yet.

Sheffield: I’m talking about getting a lawyer and get the bond down.

McKee: Mine keeps on saying something about he won’t do nothing until he knows I can get some money to get it down.

Sheffield: Who is your lawyer?

McKee: Kevin Settles.

Sheffield: (Inaudible)

McKee: You think that lady can do anything?

Sheffield: I don’t know, I can check you know.

McKee: Yeah. I tried to call her a little while ago and couldn’t get her.

Sheffield: I can check.

McKee: All right.

Sheffield: I can check. Where’s Gail at?

McKee: Well, she’s off somewhere right now.

Sheffield: Yeah.

McKee: She’s scared.

Sheffield: She ain’t coming to visit?

McKee: Huh-uh.

Sheffield: She visited you?

McKee: Not much. She’s too scared.

Sheffield: I’ll check on the rings and that other—

McKee: Man, I don’t understand this. You know?

Sheffield: (Inaudible)

McKee: I don’t know — what did you do me this way for, man?

Sheffield: Huh?

McKee: What did you do me this way for?

Sheffield: I ain’t doing nothing. Like they say, when it gets tight, you’ve got to help your self. Maybe that’s what you should do.

McKee: You’re lucky he lied about it.

Unidentified: You ain’t found nothing yet, or worked out nothing? Got anything concrete?

McKee: No, just waiting for the court, I guess.

Sheffield: Hello.

McKee: Say.

Sheffield: Hey.

McKee: What’s going on.

Sheffield: Ain’t nothing to it.

McKee: O. I was wondering about Gail’s rings.

Sheffield: Huh?

McKee: I was wondering about Gail’s rings.

Sheffield: What about them?

McKee: Yeah.

Sheffield: Well, I don’t know. I guess they’ve still got them, I guess.

McKee: Where can I get them from?

Sheffield: Huh?

McKee: Where can I get them from?

Sheffield: Where can I get them from them?

McKee: Yeah. And how?

Sheffield: How much was there? I don’t even know how much was it.

McKee: It’s already paid.

*336Sheffield: What’s already paid?

McKee: Set of rings.

Sheffield: Oh, yeah?

Sheffield: That ain’t lying. If you remember out there, I’d say if you did out there, you’d know. If you’re thinking right.

McKee: Do what?

Sheffield: I say, if your thinking right.

McKee: Yeah, but see, I couldn’t blame it on somebody else, like your talking about.

Sheffield: Well, tell them who operated.

McKee: Huh?

Sheffield: Tell them who did it.

McKee: Tell them who did it? Then I’d be setting myself up.

Sheffield: What do you mean you’ll be setting yourself up? You won’t be setting yourself up.

McKee: Otherwise, I’d be putting something on somebody that don’t deserve it.

Sheffield: If they did it, they deserve it God damn it. To save yourself. Shit, you know how that go.

McKee: Well, as far as that goes, you know you kind of set it up, you know.

Sheffield: No, I ain’t did nothing.

McKee: Well, you just talk to the lady for me and see if I can’t do something.

Sheffield: I’ll see.

McKee: I need to get a hold of her, but I can’t get a hold of her. I tried to call out there, and they won’t accept the call.

Sheffield: Uh-huh. I ain’t saying that I can go out there and play cool and sit. I can’t. Shit. Horses out running now.

McKee: Well I can’t stay here. I don’t want to stay in all this, you know. You all just leave me hang out to dry. I’m going to have to go pretty quick, man. The time is fixing to run out on the phone. And I’d appreciate you all thinking about it, talking about it, something.

Sheffield: Well, I’ll check and see what’s happening.

McKee: I need to.

Sheffield: All right.

McKee: Bye.

OPINION

HERVEY, J.,

delivered the opinion of the Court

in which KELLER, P.J., MEYERS, KEASLER, HOLCOMB and COCHRAN, JJ., joined.

The issue in this case is whether the admission into evidence at appellant’s murder trial of a co-conspirator’s out-of-court statement was reversible error.

Appellant was convicted of murdering the victim by striking him in the head with a barbell (which was also referred to at trial as a dumbbell). This occurred early Saturday morning in the apartment of appellant’s brother (Randy). Randy testified at appellant’s murder trial that he saw appellant strike the victim with a barbell. Randy’s girlfriend (Steward) testified that she came out of the back bedroom of the apartment and saw appellant and Randy standing near the bleeding victim who was on the floor. Steward saw appellant holding a barbell. Steward did not see who struck the victim. Appellant told a fellow county jail inmate that he hit the victim with a barbell. Randy initially told the police and his work supervisor that he murdered the victim. Randy testified at trial that he made these admissions to protect appellant and Steward. The evidence also shows that the victim’s murder was not a pre-planned act.

The prosecution also presented evidence that appellant, Randy and Steward conspired to “hinder appellant’s apprehension”1 immediately after the murder occurred. To carry out this conspiracy, they went to great efforts to clean up the crime scene and to dispose of the victim’s body and his car. Later the same day, Randy and Steward had a conversation during which Randy stated that they could not tell anyone about the murder. Randy also told Steward that he would take responsibility for the murder if anyone asked him about it. Steward testified at trial to these out-of-court statements by Randy with no objection from appellant.

Q. [PROSECUTION]: And was there any discussion about what had happened?

A. [STEWARD]: Yes, ma’am there was.

Q. And what was the discussion about? A. He had went to sleep. And when he woke up, he was saying that we couldn’t tell nobody. That if anybody came to him to ask him about it or whatever, he was going to tell them that he was the one that did it.

Q. That he was the one that did it?

A. Yes, ma’am.

Q. And when he told you that he was going to be the one to tell that he did it, did he say anything about protecting you or [appellant]?

A. Yes. He said that he wouldn’t ever mention my name.

Q. What about [appellant]?

A. He didn’t say anything about [appellant].

*438Steward also testified, over appellant’s hearsay objection, to another out-of-court statement that Randy made to Steward during this conversation asking, “Why did [appellant] have to hit [the victim]?”

Q. [PROSECUTION]: Now, Saturday, when [Randy] had come over to your house, your apartment, did — you mentioned that y’all discussed what had happened; is that correct?

A. [STEWARD]: Yes, ma’am.

Q. And what did Randy tell you re- - garding who hit [the victim] with the dumbbell?

[THE DEFENSE]: Objection. Calls for hearsay.

[TRIAL COURT]: What was the timing of this again?

[PROSECUTION]: Saturday.

[TRIAL COURT]: What time are we speaking of?

[STEWARD]: Saturday afternoon. [TRIAL COURT]: Was this before or after you talked to the police officers? [STEWARD]: Before.

[TRIAL COURT]: Okay. Your objection is overruled.

A. [STEWARD]: [Randy] said — asked me why did [the victim] just keep doing it and why did [appellant] have to hit him.

During closing jury arguments, the prosecution argued that it really did not matter who struck the victim because the jury could find appellant guilty as a party if it believed that he “assisted in the offense at all.”2 Neither party mentioned, during closing jury arguments, Randy’s out-of-court statement to Steward rhetorically asking why did appellant have to hit the victim.

Appellant claimed on direct appeal that the trial court erroneously admitted this out-of-court statement. The Court of Appeals decided in an unpublished, memorandum opinion that this out-of-court statement was admissible under the co-conspirator exemption from the hearsay rule set out in Tex.R. Evid. 801(e)(2)(E) which defines as nonhearsay “a[n] [out-of-court] statement by a co-conspirator of a party during the course of and in furtherance of the conspiracy.” See Byrd v. State, No. 03-02-00625-CR slip op. at 7-8, 2004 WL 162939 (Tex.App.-Austin, January 29, 2004) (memorandum opinion not designated for publication). The Court of Appeals also decided that any error in admitting this out-of-court statement was harmless. See id. Its opinion states:

Our review of the record shows that Steward and [Randy] were part of a conspiracy to hinder appellant’s apprehension by assisting in disposing of [the victim’s] body and cleaning up the scene of the crime. [Citations omitted]. The conversation Steward discussed in her testimony was not “idle chatter,” but rather a plan that neither would tell anyone about the crime and that [Randy] would protect Steward and appellant *439if the subject ever came up. In the context of the conversation taken as a whole, the statement “why did [appellant] have to hit him” could reasonably be characterized as identifying appellant’s role in the crime and therefore made in furtherance of the conspiracy. Therefore, we cannot conclude that the trial court abused its discretion in admitting the statement implicating appellant. Even if we were to find that [Randy’s] statement was improperly admitted through Steward’s testimony, [Randy] later testified at trial that the appellant hit [the victim] with a barbell. Therefore, Steward’s testimony regarding [Randy’s] statement, if admitted in error, was harmless. [Citation omitted].

Id.

Appellant sought discretionary review of this decision in a document he entitled “Brief of Petitioner.” In this document, appellant raised two grounds for review, neither of which challenged the Court of Appeals’ decision that any error in admitting Randy’s out-of-court statement was harmless. This Court granted discretionary review on one ground which claimed that Randy’s out-of-court statement was inadmissible under Rule 801(e)(2)(E) because this out-of-court statement was “a statement about events that allegedly transpired before the beginning of the alleged conspiracy.” The ground upon which we granted discretionary review states:

This Court should grant review of the decision of the Court of Appeals holding the co-conspirator’s “exception” to the hearsay rule applied to make admissible an out-of-court statement because the appellate court erroneously decided an important issue of state law regarding the relationship for purposes of the exception between a conspiracy to conceal a crime and the preceding crime when the court extended the exception to a statement about events that allegedly transpired before the beginning of the alleged conspiracy.

Appellant claims in his brief on discretionary review that Randy’s out-of-court statement was inadmissible under Rule 801(e)(2)(E) because a statement about events that occurred before the conspiracy to conceal the crime is not “in furtherance” of this conspiracy.3 Appellant also claims for the first time in his brief on discretionary review that admission of Randy’s out-of-court statement harmed him under the harm analysis for non-constitutional error set out in Tex.R.App. PROC. 44.2(b).4

*440Justice Blackmun’s dissenting opinion in Bourjaily v. United States succinctly sets out the substantive contours of the co-conspirator exemption from the federal hearsay rule which, in relevant part, is identical to the co-conspirator exemption from our state hearsay rule. See Bourjaily v. United States, 483 U.S. 171, 188-94, 107 'S.Ct. 2775, 97 L.Ed.2d 144 (1987) (Blackmun, J., dissenting) and various authorities cited therein.5 The co-conspirator exemption from the hearsay rule is based on agency principles, “the underlying concept being that a conspiracy is a common undertaking where the conspirators are all agents of each other and where the acts and statements of one can be attributed to all.” Id. 6 This agency rationale is “not based primarily upon any particular guarantees of reliability or trustworthiness that [are] intended to ensure the truthfulness of the admitted statement.” Id. 7 The “course and in furtherance of’ requirements nevertheless provide some limited guarantees of trustworthiness under the rationale that active conspirators have “no incentive to misdes-cribe the actions of their fellow members.” Id. Co-conspirator statements can be used against a defendant even though the defendant is not charged with a conspiracy offense. See United States v. DeVillio, 983 F.2d 1185, 1193 (2nd Cir.1993).8

A worthy beginning point for analyzing whether Randy’s out-of-court statement was admissible under TRE 801(e)(2)(E) is the Supreme Court’s decision in Krulewitch v. United States, 336 U.S. 440, 69 S.Ct. 716, 93 L.Ed. 790 (1949).9 Krulewitch involved a Mann Act *441prosecution charging a conspiracy to transport a prostitute from New York to Florida. See Krulewitch, 386 U.S. at 441-44, 69 S.Ct. 716. At trial, the State sought to introduce through the prostitute witness a co-conspirator’s out-of-court statements to the prostitute implicating the defendant. See id. The co-conspirator made these out-of-court statements to the prostitute over a month after the prostitute had been transported to Florida. See id.

The State’s theory of admissibility was that these out-of-court statements were part of the charged conspiracy to transport the prostitute from New York to Florida because they were made in an effort to conceal this charged conspiracy. See id. The Supreme Court disagreed and decided that the out-of-court statements made during an effort to conceal this conspiracy were inadmissible because the objectives of this conspiracy had been attained when the statements were made. See id.; 10 see also Lutwak v. United States, 344 U.S. 604, 618, 73 S.Ct. 481, 97 L.Ed. 593 (1953) (teaching of Krulewitch is that declarations of a conspirator do not bind the co-conspirator if made after the conspiracy has ended);11 United States v. Howard, 752 F.2d 220, 230 (6th Cir.), cert, denied, 472 U.S. 1029, 105 S.Ct. 3506, 87 L.Ed.2d 636 (1985) (Krulewitch decided that declarations made after a conspiracy has terminated in an attempt to prevent detection are not statements made in furtherance of the main conspiracy).12

Krulewitch provides no support for appellant’s claim that Randy’s out-of-court statement is inadmissible under TRE 801(e)(2)(E) simply because it was “a statement about events [the victim’s murder] that allegedly transpired before the beginning of the alleged conspiracy.”13 The State is not claiming here that a conspiracy to conceal the victim’s murder was *442part of a charged conspiracy (to murder the victim).

The issue here, applying Kruleioitch, is whether the objectives of the conspiracy to “hinder appellant’s apprehension” had been attained when Randy made the out-of-court statement. The Supreme Court in Grünewald v. United States explained that a “vital distinction must be made between acts of concealment done in furtherance of the main criminal objectives of the conspiracy, and acts of concealment done after these central objectives have been attained, for the purpose only of covering up after the crime.” See Grünewald v. United States, 353 U.S. 391, 405, 77 S.Ct. 963, 1 L.Ed.2d 931 (1957).14 In Grüne-wald, 353 U.S. at 405-06, 77 S.Ct. 963 the Court stated:

By no means does this mean that acts of concealment can never have significance in furthering a criminal conspiracy. But a vital distinction must be made between acts of concealment done in furtherance of the main [15] criminal objectives of the conspiracy, and acts of concealment done after these central objectives have been attained, for the purpose only of covering up after the crime. Thus the Government, argues in its brief that “in the crime of kidnapping, the acts of conspirators in hiding while waiting for ransom would clearly be planned acts of concealment which would be in aid of the conspiracy to kidnap. So here, there can be no doubt that * * * all acts of concealment, whether to hide the identity of the conspirators or the action theretofore taken, were unquestionably in furtherance of the initial conspiracy * * We do not think the analogy is valid. Kidnapers in hiding, waiting for ransom, commit acts of concealment in furtherance of the objectives of the conspiracy itself, just as repainting a stolen car would be in furtherance of a conspiracy to steal; in both cases the successful accomplishment of the crime necessitates concealment. (Footnote omitted). More closely analogous to our case would be conspiring kidnapers who cover their traces after the main conspiracy is finally ended — i.e., after they have abandoned the kidnaped person and then take care to escape detention. In the latter case, as here, the acts of covering up can by themselves indicate nothing more than that the conspirators do not wish to be apprehended — a concomitant, certainly, of every crime since Cain attempted to conceal the murder of Abel from the Lord.

In this case, the Court of Appeals decided that the conspiracy was much broader than just a conspiracy to conceal the victim’s murder. See Byrd, slip op. at 7.16 The Court of Appeals decided that there was a conspiracy “to hinder appellant’s apprehension.” See id, 17 This conspiracy *443was still ongoing at the time of the conversation between Randy and Steward very soon after the victim’s murder. And, Randy’s out-of-court statements to Steward about taking responsibility for the murder and protecting Steward advanced the objectives of this conspiracy.

We decide, however, that Randy’s other out-of-court statement rhetorically asking why did appellant have to hit the victim did not advance the objective of the conspiracy “to hinder appellant’s apprehension.” See Howard, 752 F.2d at 230 (“[s]ome link must be established between the attempt to avoid detection and some remaining objective of the conspiracy. The government must still prove both that a ‘central aim of the conspiracy ... continued in being’ and that the declarations directed at ‘concealment ... were at least partly calculated to further this aim.’ ”);18 see also Guidry v. State, 9 S.W.3d 133, 147-48 (Tex.Cr.App.1999), cert, denied, 531 U.S. 837, 121 S.Ct. 98, 148 L.Ed.2d 57 (2000) (co-conspirator’s statement to third party merely described “what was occurring or what had occurred” and did not further conspiracy to murder victim for remuneration). This decision is consistent with the “very narrow” exemption from the hearsay rule set out in TRE *444801(e)(2)(E)19 and Justice Jackson’s renowned concurring opinion in Krulewitch discussing how expanding indefinitely the vague crime of conspiracy can constitute “a serious threat to fairness in our administration of justice.” See Krulewitch, 336 U.S. at 445-458, 69 S.Ct. 716 (Jackson, J., concurring).

We nevertheless agree with the Court of Appeals that the error in admitting Randy’s out-of-court statement was harmless. Randy testified at trial consistently with this out-of-court statement, and he was subject to cross-examination. Randy’s out-of-court statement rhetorically asked why did appellant have to hit the victim, and Randy testified at trial that he saw appellant strike the victim with the barbell. Randy’s , out-of-court statement, therefore, was not the only evidence presented at appellant’s trial identifying appellant as the one who struck the victim with the barbell. It is also relevant that the State did not mention Randy’s out-of-court statement during closing jury arguments. Therefore, the error in’ admitting Randy’s out-of-court statement did not have “a substantial and injurious effect or influence in determining the jury’s verdict.” See Ford v. State, 73 S.W.3d 923, 925 (Tex.Cr.App.2002).

The judgment of the Court of Appeals is affirmed.

PRICE and JOHNSON, JJ., concurred.

WOMACK, J., not participating.

OPINION

BRIAN HOYLE, Justice.

Susanna Arroyo appeals from her conviction for capital murder. In seven issues, she argues that the evidence was insufficient to support the conviction and that the trial court should have excluded evidence of her gang affiliation and the statements of a coconspirator. We affirm.

Background

On July 1, 1999, Jeffrey Adam Carrier and his friend Aaron Warren went to Kilo-land Park, a landing on Lake Palestine. They introduced themselves to a group who was already there, which included Hersain Gomez, Crystal Garcia, Appellant, and three others. Appellant and her group had traveled together to Kiloland Park and spent the day drinking alcohol, smoking marijuana, swimming, and listening to music. Carrier asked the group if he could purchase marijuana from them. They did not have any marijuana left, but someone in the group told Carrier that if he would return later that evening, they would go to Tyler with him and help him find a dealer. Carrier agreed, and he and Warren left the landing. The group, excluding Garcia at this time, began planning to rob the two boys when they returned.

As instructed, the two boys returned to Kiloland Park later that evening. The group’s car battery was dead, and so Warren, Carrier, and a member of the group left in Carrier’s car to find jumper cables. While they were gone, the remaining members of the group, Garcia and Appellant included, resumed their planning of the robbery of the two boys. Hersain stated that they should just kill the two boys because aggravated robbery and murder both had essentially the same range of punishment. No one voiced opposition to that plan, and Appellant said she was “down with” Hersain’s plan. Subsequently, the others returned and were able to start the car. The group and the two boys left Kiloland Park in two cars.

They traveled to a remote area in the far southern reaches of the city of Tyler. Once they arrived, two members of the group took Warren in their car, telling the boys that the person they were to purchase marijuana from did not like large groups of people at his house. The rest of the group, including Appellant, remained with Carrier by his car. At Hersain’s instruction, Garcia used a knife to puncture two of the tires on Carrier’s car.

Garcia told Carrier about the flats, and Carrier exited the car and got out the spare tire and the related tools. While Carrier was kneeling down to work on the flattened tire, Hersain picked up the spare tire and threw it at Carrier’s head. Carrier stood up, and he and Hersain began to fight. Carrier was apparently getting the best of Hersain. That ended when Appellant hit Carrier with the car jack. Carrier fell to the ground and Hersain and Appellant continued to beat him. At one point, Carrier kicked Appellant in the leg. This angered Garcia. She began to kick Carrier as he lay on the ground and then picked up the tire iron and hit Carrier with it a number of times.

*286Hersain and Appellant dragged Carrier from the roadside into the nearby wooded area. Garcia proceeded to steal items from Carrier’s car. At one point Hersain called Garcia to the edge of the woods and asked her to give him the knife she had used to puncture the tires. Garcia could hear Carrier moaning in the woods, and she retrieved the knife and gave it to Hersain. Garcia did not witness what happened next, but the knife blade was recovered from Carrier’s lifeless torso, the handle broken off and lying nearby.

The others returned, having assaulted Warren, taken his money, and left him at a spot farther down the road. The group drove back to Tyler together and dispersed. Hersain and Appellant fled to Mexico. Michael Thompson, one member of the group, contacted the police and notified them of the murder. The police arrested him along with Garcia and the rest of the remaining group.

Appellant was charged with the capital murder of Jeffrey Carrier. She was captured in Mexico several years after the murder and returned to Smith County for trial. She pleaded not guilty. The jury found Appellant guilty of the capital murder of Carrier, and she received the mandatory punishment of imprisonment for life. This appeal followed.

Accomplice Testimony

In her first and second issues, Appellant contends that the testimony of Crystal Garcia is not sufficiently corroborated. Although she phrases her argument in terms of legal and factual sufficiency, Appellant’s argument is that the accomplice testimony is not corroborated as required by law and that the nonaccomplice testimony does not tend to link her to the commission of the offense.

Applicable Law

A conviction may not be sustained on the testimony of an accomplice unless there is other evidence “tending to connect the defendant to the offense committed.” Tex.Code CRim. Proc. Ann. 38.14 (Vernon 2006); Simpson v. State, 181 S.W.3d 743, 753 (Tex.App.-Tyler 2005, pet. refd). The corroborating evidence need not directly connect the defendant to the crime or be sufficient by itself to establish guilt, but it must do more than merely show the commission of the offense. Tex. Code Crim. Proc. Ann. 38.14; Vasquez v. State, 67 S.W.3d 229, 236 (Tex.Crim.App.2002). The requirement of Article 38.14 is fulfilled if the combined weight of the no-naccomplice evidence tends to connect the defendant to the offense. See Cathey v. State, 992 S.W.2d 460, 462 (Tex.Crim.App.1999). The corroborating evidence may consist of circumstantial evidence. See Gosch v. State, 829 S.W.2d 775, 777 (Tex.Crim.App.1991).

Even apparently insignificant incriminating circumstances may provide sufficient corroboration. Trevino v. State, 991 S.W.2d 849, 852 (Tex.Crim.App.1999). The mere presence of the accused in the company of the accomplice before, during, and after the commission of the offense is insufficient by itself to corroborate accomplice testimony. See Dowthitt v. State, 931 S.W.2d 244, 249 (Tex.Crim.App.1996). Evidence of such presence, however, coupled with other suspicious circumstances, may tend to connect the accused to the offense. Id.

To evaluate whether there is sufficient corroborating evidence, we eliminate the accomplice testimony from our consideration and examine the record to ascertain whether the remaining evidence tends to connect the defendant with the offense. McDuff v. State, 939 S.W.2d 607, 612 (Tex.Crim.App.1997). The accomplice witness *287rule is a statutorily imposed sufficiency review and is not derived from federal or state constitutional principles that define the legal and factual sufficiency standards. Vasquez, 67 S.W.3d at 236.

Analysis

Crystal Garcia was an accomplice to Carrier’s murder as a matter of law because she was charged with the same offenses as Appellant. See Burns v. State, 703 S.W.2d 649, 651 (Tex.Crim.App.1985). Appellant does not argue that any other witness was an accomplice. Eliminating Garcia’s testimony from our consideration, there remains ample evidence connecting Appellant to the offense. The evidence includes the following:

1) Aaron Warren identified Appellant as part of the group that took him and Carrier to South Tyler.

2) Warren further testified that he ran back to Carrier’s car after he was left on the side of the road. Consistent with Garcia’s testimony, he found the car with two tires punctured and Carrier and the group gone. (Carrier was likely already dead, lying nearby in the woods.)

3) Appellant and Hersain discussed the murder with Benito Gomez, Hersain’s brother. Appellant said that “it just happened” and that she had taken a watch, presumably from the victim. Hersain said more, including that he had hit Carrier and that he had killed him.

In assessing the strength of a particular item of nonaccomplice evidence, we examine its reliability or believability and the strength of its tendency to connect the defendant to the crime. See Herron v. State, 86 S.W.3d 621, 632 (Tex.Crim.App.2002). Warren’s testimony appears to be reliable, although he initially told the police different stories in an attempt to hide the fact that he and Carrier had been trying to purchase drugs. Its tendency to connect Appellant to the crime is relatively high, as it places Appellant with the victim immediately before he was killed. Both Hersain’s and Appellant’s statements to Benito admitting to the murder connect Appellant to the crime directly, although they are undermined to some extent by Benito’s inability to recollect events or his reluctance to testify.

In Burks v. State, 876 S.W.2d 877, 888 (Tex.Crim.App.1994), the court of criminal appeals held that a sufficient connection to the crime was made where the nonac-complice evidence showed the defendant to have been near the crime scene an hour before the crime, the defendant had a weapon similar to the murder weapon, the defendant was looking for bullets, the defendant engaged in an incriminating conversation, and he attempted to evade the police. This case is similar to Burks inasmuch as there is a connection of Appellant to the situs of the offense, and there are incriminating statements after the fact as well as flight.

This case is distinguishable on the facts from Wincott v. State, 59 S.W.3d 691 (Tex.App.-Austin 2001, pet. refd), the principal case advanced by Appellant. In that case, the corroborative evidence did little more than place the defendant in the company of the accomplices. The court held that such evidence was proof of association but did not link the defendant to the crime. Id. at 702. This case is different in that Warren’s testimony places Appellant at the scene of the offense minutes before Carrier was killed and Appellant’s statement to Benito provides a direct link to the offense. The nonaccomplice testimony need only tend to link Appellant to the offense. See Tex.Code CRim. Peoc. Ann. 38.14. The connection here is stronger that the mere associative link in Wincott and is at least as powerful as the links in Burks. Appel*288lant was present immediately before the offense, she made incriminating statements, and she had property, the watch, that could have come from the offense. This links her not just to the other actors, but to the offense itself. We overrule Appellant’s first and second issues.

Gang Affiliation