The offense is capital murder and the sentence is death. Appellant raises fourteen points of error. We affirm.

In point of error thirteen, appellant claims the evidence is insufficient to support the jury's affirmative finding on the "future dangerousness" special issue. Specifically, appellant argues the State failed to prove beyond a reasonable doubt that there is a probability that appellant would constitute a continuing threat to prison and free society. See Collier v. State, 959 S.W.2d 621, 623 (Tex.Cr.App. 1997), cert. denied, 119 S. Ct. 335 (1998). We are required to view the evidence in the light most favorable to the verdict and then determine whether 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 continuing threat to society. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Chambers v. State, 866 S.W.2d 9, 16 (Tex.Cr.App. 1993), cert. denied, 114 S. Ct. 1871 (1994).

The evidence at guilt/innocence shows appellant planned to murder his wife because she intended to divorce him. Appellant murdered his wife and her two daughters. Appellant manually strangled them. He later pawned his wife's sewing machine and got high on drugs. The punishment evidence, among other things, shows appellant had been convicted of the felony offense of injuring an elderly person. Appellant shot this person in the face. Viewing the evidence in the light most favorable to the jury's affirmative finding on the "future dangerousness" special issue, we cannot say this finding is irrational. Point of error thirteen is overruled.

In point of error one, appellant claims his confession and its fruits are inadmissible because his warrantless arrest did not meet an exception to the warrant requirement under state law. In point of error two, appellant claims the trial court erroneously denied his requested jury charge which would have instructed the jury to disregard his confession if the jury found it was the product of an illegal arrest.

Appellant first raised this issue in a pretrial motion to suppress. During the pretrial suppression hearing, various law enforcement personnel testified about the circumstances leading up to appellant's confession. Appellant did not testify at this hearing.

The evidence from the pretrial suppression hearing shows the victims were murdered and their bodies were discovered in an apartment they shared with appellant. Soon after the victims' bodies were discovered on the morning after the murders, appellant arrived at the crime scene while the police were processing it and conducting their investigation. The police quickly learned that appellant lived at the apartment and was married to one of the victims.

Several of the victims' family members were also at the crime scene. One of these family members asked appellant what he had done to the victims. Appellant expressed no curiosity about what this family member meant by this question and he did not ask anything about the victims or why the police were in his apartment. Appellant also did not appear upset or surprised about what was going on.

Another one of the victims' family members cursed appellant and accused him of killing the victims. The police had to separate appellant from the victims' family members who continued to shout threats at appellant. Partly because of the confrontation between the victims' family members and appellant, the police put appellant unhandcuffed in the back of a police car.

The police soon discovered a handwritten note in the victims' apartment. This note stated, "I love [the victims' first names]. I could not take care of my family. I don't have a job. I gave them back to God. He and they will understand. James."

One of the investigating officers then spoke to appellant in the back of the police car. When the detective asked appellant where he was the previous evening, appellant stated that he left the apartment at about 4:15 p.m. and did not return until his recent arrival at the scene. Appellant also stated he had a drug problem and could not keep a job.

Appellant agreed to accompany the police to the homicide office to give a statement. Appellant was transported to the homicide office in the back of a police car in handcuffs. The police told appellant that he was not under arrest and that this was standard procedure. An officer testified that another reason appellant was transported to the homicide office in handcuffs was for the officer's safety because appellant was 6'6" and weighed over 300 pounds. Appellant eventually confessed to the murders. According to the police, appellant was not under arrest when he confessed. The trial court denied appellant's suppression motion.

The prosecution presented this evidence at trial. Appellant testified for the first time at trial that the police never let him leave the police car after he was initially put there. Appellant also testified that when the police handcuffed him for the ride to the homicide office they told him he was under arrest. The trial court denied appellant's requested jury charge on the legality of his arrest.

Appellant claims his "arrest" was illegal because it did not meet an exception to the warrant requirement under state law. His brief states:

"In this case all of Appellant's statements, including the third one (the only inculpatory one) were obtained as a direct result of his illegal arrest. From the beginning, the police had probable cause to arrest Appellant based upon the signed, handwritten note they found in plain view at the scene. Instead of taking their evidence to a judge to obtain an arrest warrant, as they are required to do by Texas law (with certain exceptions not remotely applicable here) the officers arrested appellant without a warrant and questioned him for fifteen hours until they got the confession they wanted.

Any reasonable person subjected to the police conduct in this case would have believed that he was not free to leave. The law enforcement authorities had surrounded and blocked entry to Appellant's apartment. They intercepted him as he returned home; instead of allowing him to enter his apartment they locked him in the back seat of a patrol car. Then [the police], having seen the handwritten note reading, "I love [naming the victims' first names]. I could not take care of my Family. I don't have a Job. I gave them back to God he and they will understand James," and knowing Appellant's name and relationship to the three deceased women, came down to the patrol car and questioned Appellant." (Emphasis Supplied).

Appellant's brief does not clearly set out when appellant claims the police illegally "arrested" him. It appears he claims an illegal "arrest" occurred when "the police had probable cause to arrest Appellant based upon the signed, handwritten note they found in plain view at the scene" and when the police learned "Appellant's name and relationship to the three deceased women." ⁽¹⁾

We agree with appellant that "from the beginning" the police had probable cause to arrest appellant "based upon the signed, handwritten note" together with the police knowledge of appellant's name and his relationship to the victims and the other circumstances present at the crime scene. See generally Guzman v. State, 955 S.W.2d 85, 87 (Tex.Cr.App. 1997) ("probable cause" determinations based on common sense and not legal technicalities). We disagree, however, that a warrantless arrest based on this information does not constitute an exception to the warrant requirement. Article 14.03(a)(4), V.A.C.C.P., authorizes a warrantless arrest in these circumstances. See id. (police can arrest without a warrant "persons who the peace officer has probable cause to believe have committed an assault resulting in bodily injury to a member of the person's family or household").

In addition, since the material facts leading up to when appellant claims he was "arrested" are undisputed, appellant was not entitled to a jury instruction on the legality of his "arrest." Cf. Thomas v. State, 723 S.W.2d 696, 707 (Tex.Cr.App. 1986); Moon v. State, 607 S.W.2d 569, 572 (Tex.Cr.App. 1980). To the extent appellant's trial testimony raised a fact issue on whether he was illegally "arrested" when he was first placed in the back of the police car, the undisputed facts removing the taint of this illegal "arrest" also disentitled appellant to a jury instruction on the legality of this "arrest." See id.; Footnote 1.

Finally, any error in not instructing the jury on this issue was harmless in light of appellant's handwritten note claiming responsibility for murdering the victims and the other evidence presented at trial. Points of error one and two are overruled.

In points of error three, four, and five, appellant argues that the mitigation special issue violates the Eighth Amendment. In points of error six and seven, appellant claims the "10-12" rule violates the Eighth Amendment. We have resolved these claims adversely to appellant. See Prystash v. State, 3 S.W.3d 522, 536-37 (Tex.Cr.App. 1999). Points of error three through seven are overruled.

In points of error eight and ten, appellant claims counsel was ineffective for not claiming that the Eighth Amendment erects a per se bar to the admission of victim impact evidence. ⁽²⁾ The Eighth Amendment erects no per se bar to the admission of this evidence. See Payne v. Tennessee, 501 U.S. 808, 825, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991); Mosley v. State, 983 S.W.2d 249, 261-65 (Tex.Cr.App. 1998), cert. denied, 119 S.Ct. 1466 (1999). Points of error eight and ten are overruled.

In his ninth point of error, appellant asserts for the first time on appeal that he is entitled to a new punishment hearing during which he now informs this Court he will decide whether to waive the mitigation issue. See Mosley, 983 S.W.2d at 263-64 (dicta suggesting that a defendant may waive the mitigation issue). Appellant did not raise in the trial court a claim that he could waive the mitigation issue, so this claim has not been preserved for appeal. Point of error nine is overruled.

In his eleventh point of error, appellant argues that counsel was ineffective for failing to object to the prosecution's jury argument at punishment that jurors should consider victim impact evidence in answering the "future dangerousness" special issue. During closing argument at the punishment phase, the prosecution without objection urged the jury to consider victim impact evidence in answering the "future dangerousness" issue.

"We want you to consider the effect this crime has had on the victims, not only Ericka and Sonny and Sharon, but Johnny Melvin Mayes, their father. You could imagine how he feels now. How he must have felt that day when he found out that his only two daughters, teenage daughters were gone. He would never see them again, he would never talk to them again, wouldn't see Ericka graduate, wouldn't see them get married, wouldn't see them grow up and have children, would never experience any of those joys that we all take for granted because [appellant] took all of that away from him.

"We all hope that when we have kids, I know a lot of you have had kids already, that you're going to go before they do. How tragic it is for a parent to have to lose a child while they are still alive. Johnny Melvin Mayes had to go through that thanks to [appellant], and he lives with the loss of his two daughters everyday. You know that from what his own mother told you earlier today. We certainly want you to consider how this crime has affected Mr. Mayes."

In Mosley, this Court decided that victim impact evidence "is relevant only insofar as it relates to the mitigation issue." See Mosley, 983 S.W.2d at 263. Mosley also decided that victim impact evidence "of which a defendant is aware at the time he commits the crime is necessarily relevant to his future dangerousness and moral culpability." See Mosley, 983 S.W.2d at 261 fn 16.

It is difficult to imagine how appellant could not have reasonably foreseen the impact that the victims' deaths would have on others. The victim impact evidence, therefore, was relevant to the "future dangerousness" issue. Moreover, any error in the prosecution's argument did not harm or prejudice appellant. The prosecution could have made the same argument with respect to the mitigation issue. And, it is difficult to conceive of the jury ignoring all the other evidence and affirmatively answering the "future dangerousness" special issue based solely on the victim impact evidence. On this record, the jury would have affirmatively answered the "future dangerousness" special issue with or without the prosecution's jury argument. Point of error eleven is overruled.

In point of error twelve, appellant argues the trial court erroneously overruled his objection to the prosecutor's jury argument at punishment that compared the value of appellant's life to the lives of the victims. The prosecution argued:

"No reason to give this person a life in the penitentiary sentence because he has worked hard in this incident to earn the verdict you're going to give, the verdict the law demands, the verdict the facts demand and the verdict you will always be comfortable with whenever you rise, whenever you set, whenever you go about your business you will be comfortable that you made the right decision to give this man a life sentence to say there are mitigating factors there or to say he is not a continuing threat is to mean that his life is more important than Sharon Jackson's, than Ericka or Sonny's. [Sic]."

The trial court overruled appellant's objection that this argument was "asking the jury to make a comparative judgment based on value of life on victim versus the defendant."

Relying on Payne, appellant argues that a prosecutor may not compare the worth of a victim to a defendant's worth. This is incorrect because Payne discourages "measuring the worth of the victim compared to other members of society." See Payne, 111 S.Ct. at 2607 (victim impact evidence should not encourage "a jury to find that defendants whose victims were assets to their community are more deserving of punishment than those whose victims are perceived to be less worthy"); Mosley, 983 S.W.2d at 262; compare Goff v. State, 931 S.W.2d 537, 554-56 (Tex.Cr.App. 1996), cert. denied, 117 S.Ct. 1438 (1997) (defendant not permitted to present evidence of victim's homosexuality on "assumption that jury would consider a homosexual a less valuable member of society" than other members of society).

The prosecution's argument did not do this. It did not use the victim impact evidence for a purpose prohibited by Payne and Mosley. Point of error twelve is overruled.

In point of error fourteen, appellant argues the trial court erred in denying his pretrial motion to introduce testimony of his family and friends regarding their feelings on the prospect of a death sentence and the impact his execution would have on them. The trial court did not abuse its discretion to exclude this testimony. See Fuller v. State, 827 S.W.2d 935-36 (Tex.Cr.App. 1992), cert. denied, 114 S.Ct. 13 (1993). Point of error fourteen is overruled.

The judgment of the trial court is affirmed.

McCormick, Presiding Judge

(Delivered December 13, 2000)

En Banc

Publish

1. If appellant claims an illegal arrest occurred when he was first placed unhandcuffed in the back of the police car, the trial court was entitled to find otherwise at the pretrial suppression hearing. Moreover, for the reasons that follow in the text, subsequent and intervening events such as the officers' discovery of the note removed the taint of this "illegal" arrest. See Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975); Johnson v. State, 871 S.W.2d 744 (Tex.Cr.App. 1994).

2. During the punishment phase, the grandmother of two of the victims testified about the reaction of her son to his daughters' murders. The grandmother testified that she and her family had to physically keep her son from going to the apartment where the girls were murdered, and that she finally asked a neighbor to call 911 and request police assistance in talking her son out of going to the apartment. The grandmother also testified that her son rolled on the ground of her home and screamed, "[J]ust bury me in a hole, I can't take it, I don't have no children, I don't have anybody anymore." Since the death of the girls, her son had become forgetful, and moaned frequently in the morning and at night. He stood in the dining room turning around and around the night before trial.