JAMES EDWARD CLAYTON, APPELLANT
                                                                        V.
                                                STATE OF TEXAS, APPELLEE

                                        NO.70,764 (TRIAL COURT NO. 9212-B)
                                        IN THE COURT OF CRIMINAL APPEALS
                                                            AUSTIN, TEXAS
                            ON APPEAL FROM THE 104th DISTRICT COURT
                                            OF TAYLOR COUNTY, TEXAS

                                        BRIEF ON BEHALF OF APPELLANT

                                                    STATEMENT OF CASE

Appellant was charged by indictment with the offense of capital murder, Counts One, Two and Three, respectively, alleging that on or about September 17, 1987, he intentionally caused the death of Lori Michell Barrett by shooting her with a firearm "in the course of attempting to commit and committing burglary of a habitation"; "in the course of attempting to commit and committing kidnapping"; and "in the course of attempting to commit and Committing robbery"; with the aggravating factor in each count alleged to have been committed against Lori Michell Barrett (R. 1-2). The individual voir dire of the Special Venire began on September 14, 1988, and ended on October 20, 1988. Trial on the merits began on the 24th day of October, 1988, upon a plea of Not Guilty. At the close of all testimony the case was submitted to the jury, and on November 3, 1988, the jury returned a verdict of guilty of capital murder as alleged in Counts One, Two and Three (R. IA-396). On November 4, 1988, the jury returned its punishment verdict, answering the two special issues affirmatively (R.IA-401).  On January 17,1989, Appellant's MOTION FOR NEW TRIAL was denied by the trial court CR. IA-416). Appellant then timely filed his Notice of Appeal (R.IA-417).   Appellant seeks a reversal of the judgment of the trial court.
 

POINTS OF ERROR

POINT ONE

Was the evidence insufficient to maintain venue in Taylor County as alleged in the indictment, since the body and all evidence of the shooting was found in Jones County?

Was the evidence insufficient to establish that the death was caused "by shooting her with a firearm", as alleged in the indictment, since the State's pathologist acknowledged that death could have been caused by suffocation or strangulation?

POINT THREE

Did the trial court err in overruling Appellant's timely objection to the charge on punishment, concerning special issues one and two, that the jury was provided no guidance as to its consideration of mitigating evidence and expression of its reasoned moral response by answering either of those issues in the negative on that basis as required by The Eighth and Fourteenth Amendments to the United States Constitution?

POINT FOUR

Did the trial court abuse its discretion in failing to sustain Appellant's timely challenge to prospective juror Shytles for cause since there was established in her mind such a conclusion as to his guilt or innocence as would influence her action in finding a verdict?

POINTS FIVE, SIX, SEVEN AND EIGHT

Did the trial court err in failing to sustain Appellant's timely challenge for cause to four prospective jurors since they indicated an inability to consider the full punishment range?

POINT NINE

Did the trial court err in failing to sustain Appellant's timely challenge for cause to prospective juror Maxwell since he demonstrated a bias against a law upon which Appellant was entitled to rely?

POINT TEN

Did the trial court err in admitting over Appellant's timely objectio. prejudicial evidence that was obtained as a result of an illegal arrest?

POINT ELEVEN

Did the trial court abuse its discretion in denying Appellant's motion for change of venue based on his inability to get a fair trial in Tavlor County, Texas?

POINT TWELVE

Did the trial court err in failing to grant Appellant's timely motion for mistrial as a result of the outburst of the victim's father during defense summation to the jury?
 

POINT THIRTEEN

Did the trial court err in allowing, over Appellant's timely objection, Appellant's appointed psychiatrist to give damaging and prejudicial testimony against him in violation of the attorney-client privilege?

POINT FOURTEEN

Did the trial court err in refusing Appellant's timely requested charge to the jury at the guilt-innocence phase on reasonable doubt?

POINT FIFTEEN

Did the trial court err in refusing Appellants timely requested charge to the jury at the guilt-innocence phase on theft as an afterthought negating murder during the course of robbery?
 

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