Jeremy Thomas v. State ( 2015 )

ACCEPTED
01-11-00258-CR
FIRST COURT OF APPEALS
HOUSTON, TEXAS
3/26/2015 5:27:53 PM
No. 01-11-00258-CR CHRISTOPHER PRINE
CLERK
In the
Court of Appeals
For the
First District of Texas FILED IN
1st COURT OF APPEALS
At Houston HOUSTON, TEXAS
 3/26/2015 5:27:53 PM
CHRISTOPHER A. PRINE
No. 1284896 Clerk
In the 177th District Court
Of Harris County, Texas

JEREMY THOMAS
Appellant
V.
THE STATE OF TEXAS
Appellee

STATE’S APPELLATE BRIEF

DEVON ANDERSON
District Attorney
Harris County, Texas
DAN MCCRORY
Assistant District Attorney
Harris County, Texas
mccrory_daniel@dao.hctx.net
GRETCHEN FLADER
Assistant District Attorney
Harris County, Texas
1201 Franklin, Suite 600
Houston, Texas 77002
Tel.: 713/755-5826
FAX No.: 713/755-5809
Counsel for Appellee
ORAL ARGUMENT REQUESTED ONLY IF REQUESTED BY APPELLANT
STATEMENT REGARDING ORAL ARGUMENT
Pursuant to TEX. R. APP. P. 39.7, the State requests oral argument only if oral
argument is requested by appellant.
i
TABLE OF CONTENTS
STATEMENT REGARDING ORAL ARGUMENT .......................................................... i
INDEX OF AUTHORITIES .............................................................................................. iii
STATEMENT OF THE CASE ........................................................................................... 1
STATEMENT OF FACTS .................................................................................................. 1
SUMMARY OF THE ARGUMENTS ................................................................................ 6
REPLY TO POINT OF ERROR ONE ................................................................................ 8
REPLY TO POINT OF ERROR TWO ............................................................................. 15
REPLY TO POINT OF ERROR THREE ......................................................................... 23
REPLY TO POINT OF ERROR FOUR ........................................................................... 31
CONCLUSION ................................................................................................................. 37
CERTIFICATE OF SERVICE .......................................................................................... 38
CERTIFICATE OF COMPLIANCE ................................................................................ 38
ii
INDEX OF AUTHORITIES
CASES
Arnold v. State,
234 S.W.3d 664 (Tex. App.--Houston [14th Dist.] 2007, no pet.) ................................ 12
Barley v. State,
906 S.W.2d 27 (Tex. Crim. App. 1995) ............................................................ 17, 18, 21
Beets v. State,
767 S.W.2d 711 (Tex. Crim. App. 1987) ...................................................................... 35
Blue v. State,
41 S.W.3d 129 (Tex. Crim. App. 2000) ............................................................ 25, 27, 28
Dillard v. State,
No. 14-06-00940-CR, 2007 WL 3342029 (Tex. App.--Houston [14th Dist.]
Nov.13, 2007, no pet.) (not designated for publication) .............................................. 35
Ford v. State,
14 S.W.3d 382 (Tex. App.--Houston [14th Dist.] 2000, no pet.) .................................. 35
Fransaw v. State,
671 S.W.2d 539 (Tex. App.--Houston [14th Dist.] 1983, pet. ref’d) ............................ 35
Garcia v. State,
No. 14-06-00570-CR, 2007 WL 2447301 (Tex. App.--Houston
[14th Dist.] Aug. 30, 2007, pet. ref’d) (not designated for publication) ...................... 18
Gardner v. State,
306 S.W.3d 274 (Tex. Crim. App. 2009) ................................................................ 31, 35
Gardner v. State,
733 S.W.2d 195 (Tex. Crim. App. 1987) ...................................................................... 35
Geisberg v. State,
945 S.W.2d 120 (Tex. App.--Houston [1st Dist.] 1996), aff’d,
984 S.W.2d 245 (Tex. Crim. App. 1998) ..................................................................... 13
Heller v. State,
279 S.W.3d 823 (Tex. App.--Amarillo 2008, no pet.) .................................................. 13
iii
Hollins v. State,
805 S.W.2d 475 (Tex. Crim. App. 1991) ...................................................................... 13
Howell v. State,
175 S.W.3d 786 (Tex. Crim. App. 2005) ...................................................................... 12
Jenkins v. State,
912 S.W.2d 793 (Tex. Crim. App. 1993) ...................................................................... 22
Johnson v. State,
No. 05-94-01743-CR, 1996 WL 253345 (Tex. App.--Dallas May
13, 1996, pet. ref’d, untimely filed) (not designated for publication) .......................... 36
Lesso v. State,
295 S.W.3d 16 (Tex. App.--Houston [1st Dist.] 2009, pet. ref’d) ................................ 22
Lyssy v. State,
429 S.W.3d 37 (Tex. App.--Houston [1st Dist.] 2014, no pet.) .................................... 16
May v. State,
139 S.W.3d 93 (Tex. App.--Texarkana 2004, pet. ref’d) .............................................. 13
Mendoza v. State,
443 S.W.3d 360 (Tex. App.--Houston [14th Dist.] 2014, no pet.) ................................ 17
Miller v. State,
312 S.W.3d 162 (Tex. App.--Fort Worth 2010, no pet.) ............................................... 17
Mims v. State,
434 S.W.3d 265 (Tex. App.--Houston [1st Dist.] 2014, no pet.) .................................. 17
Neal v. State,
108 S.W.3d 577 (Tex. App.--Amarillo 2003, no pet.) .................................................. 14
Perillo v. State,
758 S.W.2d 567 (Tex. Crim. App. 1988) ...................................................................... 35
Robinson v. State,
989 S.W.2d 456 (Tex. App.--Houston [1st Dist.] 1999, pet. ref’d) .............................. 36
Runnels v. State,
193 S.W.3d 105 (Tex. App.--Houston [1st Dist.] 2006, no pet.) .................................. 14
Sattiewhite v. State,
786 S.W.2d 271 (Tex. Crim. App. 1989) ...................................................................... 36
iv
Schuster v. State,
435 S.W.3d 362 (Tex. App.--Houston [1st Dist.] 2014, no pet.) .................................. 13
Unkart v. State,
400 S.W.3d 94 (Tex. Crim. App. 2013) ................................................ 24, 26, 27, 29, 30
Will. v. State,
622 S.W.2d 116 (Tex. Crim. App. 1981) ...................................................................... 36
Woodal v. State,
350 S.W.3d 691 (Tex. App.--Amarillo 2011, no pet.) ............................................ 34, 35
Wright v. State,
374 S.W.3d 564 (Tex. App.--Houston [14th Dist.] 2012, pet. ref’d) ............................ 14
Yazdchi v. State,
428 S.W.3d 831 (Tex. Crim. App. 2014) ...................................................................... 13
STATUTES
TEX. CODE CRIM. PROC. ANN. art. 36.28 (West 2006) ..................................................... 11
RULES
Tex. R. App. P. 33.1 .................................................................................................... 24, 34
TEX. R. APP. P. 39.7.............................................................................................................. i
Tex. R. App. P. 44.2 .......................................................................................................... 30
v
TO THE HONORABLE COURT OF APPEALS:
STATEMENT OF THE CASE
Appellant was charged by indictment with the offense of murder. (CR 2).
After the jury found appellant guilty of the charged offense, the judge sentenced
appellant to life confinement. (CR 144).
STATEMENT OF FACTS
Ochelata Reliford moved into an apartment complex located at 9700 Court
Glen on June 2, 2006. (RR V 172). He lived in a first-floor apartment and he
quickly befriended Ciarra, the woman who lived upstairs from him. (RR IV 177-
178; RR V 141, 173-174, 206). Reliford also met appellant within a week of
having moved into the apartment complex. (RR V 174-175). Appellant, who was
known as “Red,” was Ciarra’s boyfriend and lived with her in the upstairs
apartment. (RR V 174). Reliford saw appellant “going and coming often” and had
conversations with him on occasion. (RR V 207-208). The complainant lived in a
nearby first-floor apartment that was within view of both Reliford’s apartment and
appellant’s apartment. (RR IV 124, 190-191, 215-218; RR VIII – SX 16, DX 1).
On the day of the murder, August 3, 2006, Reliford had the day off from his
job as a social worker for the Texas Health and Human Services Commission. (RR
V 173, 176). So he stayed home intending to relax. (RR V 177). He went outside
on his patio at about 10:30 a.m. and saw appellant, Ciarra, the complainant, and a
couple of other men at the complainant’s apartment. (RR V 177-178). They were
having a heated discussion about the complainant owing appellant money. (RR V
178).
When Reliford left his apartment to go to the store at about 4:30 p.m., he
saw the complainant outside washing his car. (RR V 178-179). Appellant and
appellant’s friend, Carnell Meredith (aka Slim), were arguing with the
complainant. (RR IV 32-33; RR V 47). The complainant slammed his car door and
walked back toward his apartment, with appellant and Meredith following him.
(RR V 179). Reliford also saw appellant fighting with his girlfriend throughout the
day. (RR V 180). Reliford overheard her tell appellant “you’re stupid” and “don’t
do it.” (RR V 180).
At about 10:30 p.m., Reliford walked a visiting friend, Trancquena Johnson,
out to her car. (RR V 181-184). Once outside, Reliford heard appellant and Ciarra
arguing. (RR V 185). Ciarra was standing by her door and appellant was standing
in the middle of the stairway, with two men standing behind him. (RR V 185-188).
Reliford got a good look at appellant and recognized him. (RR V 148). Ciarra,
who was crying, called appellant stupid and told him “don’t.” (RR V 188, 231).
Appellant stopped arguing with Ciarra and walked down the stairs with his two
companions following. (RR V 188, 231, 238-239).
2
Reliford watched appellant walk to the complainant’s apartment, knock on
the door (which was illuminated by a porch light), and turn the door knob. (RR V
189-190, 237). Appellant’s two companions were standing behind him. (RR V
237). There were also several other men standing off to the side. (RR V 237-238).
Reliford did not know where these men came from. (RR V 237-238).
Appellant took a few steps into the complainant’s apartment where the
complainant met him. (RR V 190). Appellant pulled out a gun and shot the
complainant in the head. (RR V 190). Appellant fired the gun three or four times.
(RR V 191). Appellant’s back was to Reliford when the shots were fired, but
Reliford had no doubt that appellant was the shooter. (RR V 191). Reliford
explained that he watched appellant the entire time from when appellant walked
down the stairs until the shots were fired. (RR V 191-192, 230). He never took his
eyes off of appellant. (RR V 191-192).
Reliford continued to watch appellant as appellant ran back in the direction
from which he had come and ran past the stairway to his apartment. (RR V 193-
194). In other words, appellant was running toward Reliford. (RR V 242-243).
Appellant had a gun in his hand. (RR V 243). Appellant’s two companions
followed him as he fled. (RR V 195). Reliford looked at appellant as he ran past.
(RR V 195).
3
Reliford recalled that no one other than appellant appeared to participate in
the murder. (RR V 240). Reliford did not see any of the other men in possession of
a gun. (RR V 239).
When the police arrived at the scene on the night of the offense, Reliford did
not speak to them because he was scared. (RR V 196). However, he contacted the
police about a month later and provided a written statement at the police station.
(RR V 197-198). He also viewed several photospreads. (RR V 198). Reliford
identified Meredith and Ciarra’s brother as being present when the shooting
occurred. (RR V 195-202). He identified appellant as the shooter. (RR V 199-200).
Trancquena Johnson, the friend who was visiting Reliford on the night of the
murder, also identified appellant as the shooter. Johnson recalled that Reliford and
appellant lived in the same apartment building, with appellant living upstairs from
Reliford. (RR IV 177-178). Before the day of the murder, she had seen appellant
and was able to recognize him, but had not met him. (RR IV 152-156, 199).
On the night of the murder, Johnson arrived at Reliford’s apartment at about
8:00 p.m. (RR IV 157). About an hour later, Johnson went outside and saw the
complainant, appellant, another man, and a female arguing near the complainant’s
apartment. (RR IV 157-158, 181). She recognized appellant at this time. (RR IV
204). Johnson returned inside Reliford’s apartment, but left again a short while
later. (RR IV 159-160).
4
While standing at her car preparing to leave, Johnson had a clear view of the
complainant’s apartment. (RR IV 160-162). She saw the same four people arguing.
(RR IV 162-163). While standing right in front of the complainant’s door,
appellant raised a gun and fired it at least three times. (RR IV 163-164). Appellant
then ran past Johnson with a gun in his hand. (RR IV 165, 195, 207, 211-212). She
got a good look at appellant and recognized him from having seen him on previous
occasions. (RR IV 165-167). According to Johnson, appellant was wearing a black
T-shirt. (RR IV 165-166). Appellant’s male companion was wearing a white T-
shirt and he ran the opposite direction. (RR IV 166-168).
A third person witnessed a portion of this confrontation. Maria Coronado
lived in the upstairs apartment next to appellant’s apartment. (RR IV 212-216). On
the night of the murder, she looked out her window and saw appellant and another
man, Meredith, arguing with the complainant at the complainant’s apartment. (RR
IV 32, 217-219, 227). She got a good look at appellant. (RR IV 221). After they
argued for several minutes, appellant and Meredith went upstairs and then went
“right back downstairs” to the complainant’s apartment (RR IV 219-221).
Coronado then heard four or five gunshots and saw appellant and Meredith run
away. (RR IV 220-221). She did not see who fired the shots. (RR IV 220).
Brandon Lusk, another resident of the apartment complex, witnessed a
portion of the confrontation. (RR IV 122-123). Lusk recalled that he was walking
5
through the apartment complex toward his apartment when he saw the
complainant, whom he knew, standing outside with a tall, older, dark-skinned male
who was wearing a white T-shirt and jeans. (RR IV 124, 126-127 141). There was
no one else present. (RR IV 141-142). The complainant had just had an argument
with someone and was agitated, but he was not agitated with the tall, older man.
(RR IV 141). Lusk asked the complainant what was wrong and the complainant
indicated he had to “teach these young people respect.” (RR IV 127). Lusk
jokingly told the complainant not to shoot anybody and the complainant smiled
and laughed. (RR IV 127). Lusk then continued to his apartment. (RR IV 127-
129).
About three minutes after he arrived home, Lusk heard three gunshots. (RR
IV 129-130). But he did not witness the shooting. (RR IV 132). He looked outside
and saw a light-skinned young man walking toward him from the direction of the
complainant’s apartment. (RR IV 129-132). The young man was carrying a pistol
in his left hand and was wearing shorts and black T-shirt. (RR IV 129, 132). Lusk
was unable to see his face and therefore could not identify appellant in court. (RR
IV 132, 134-135).
SUMMARY OF THE ARGUMENTS
Point one: An appellate complaint about a read-back procedure must be
preserved by a comporting trial objection. Appellant lodged a specific objection in
6
the trial court to the judge’s reading back of Johnson’s testimony. None of his
appellate complaints about the read-back process comport with his trial objection.
Absent comportment between his trial objection and appellate contentions,
appellant presents nothing for review.
Point two: The trial judge did not err in denying appellant’s motion to suppress
Reliford’s in-court identification of appellant as the shooter. Even assuming the
pretrial identification procedure was impermissibly suggestive, there is not a very
substantial likelihood that an irreparable misidentification resulted. Reliford’s
identification of appellant was reliable, despite any impermissibly suggestive
identification procedure, because Reliford had a very good opportunity to view
appellant during the offense and he paid a high level of attention to appellant at
that time. Furthermore, Reliford was very confident of his identification of
appellant when he viewed the photo array. Also, Reliford’s ability to identify
appellant was not compromised by the passage of time between the murder and the
viewing of the photospread. It was also very unlikely that Reliford would
mistakenly identify appellant as the shooter since he was familiar with appellant,
having known him as a neighbor for about two months before the commission of
the murder. Finally, Reliford confirmed his in-court identification of appellant was
made based on having observed him at the time of the offense and, therefore, was
independent of the pretrial identification procedure.
7
Point three: By failing to lodge a trial objection, appellant waived any error in the
trial judge’s comment about appellant looking like a thug. Appellant’s reliance on
Blue to excuse his failure to object is misplaced because Blue is a plurality opinion
with no precedential value. Furthermore, Blue is not applicable because the facts
of that case differ significantly from those in this case.
Point four: The trial judge did not err when he personally questioned a venireman
about his ability to follow the law or when he denied appellant’s challenge for
cause against this venireman. The venireman provided the defense attorney
equivocating answers about his ability to afford appellant a fair trial. In such a
circumstance, a trial judge may personally pose questions to the venireman to
clarify his answers. And once the venireman confirmed that he could follow the
law, the trial judge did not err in denying appellant’s challenge for cause.
REPLY TO POINT OF ERROR ONE
In his first point of error, appellant contends the trial judge failed to properly
interpret and respond to the jurors’ request to have some disputed testimony read
back to them. He maintains this failure resulted in harmful reversible error.
1. Relevant facts
During their guilt-innocence deliberations, the jurors asked the judge to
provide them with “all transcripts of the case.” (CR 133). In response, the judge
8
provided the jury with a frequently used Harris County form designed for such
circumstances which reads as follows:
MEMBERS OF THE JURY:
In view of your request for certain testimony, I
instruct you as follows:
“If the jury disagrees as to the statement of any
witness, they may, upon applying to the Court, have read
to them from the court reporter’s notes that part of such
witness’ testimony, or the particular point in dispute, and
no other.”
In accordance with this rule, you are instructed that
a request to have the court reporter’s notes read cannot be
complied with unless the jury disagrees as to the
statement of the witness. Therefore, it will be necessary
for you to certify that you are in disagreement as to the
statement of a witness, and you should request that part
of the witness’ statement or point in dispute and only that
part or point which is in dispute. Please fill in the form
below and have your foreman sign the same.
(CR 134).
The form then asks the jurors to identify the “Name of witness whose
statement is subject to disagreement.” The jurors answered “Tranquena Johnson.”
The form’s second inquiry asks for the identification of the “Lawyer questioning
witness at time of the statement.” The jurors answered “State.” Finally, the form
asks the jurors to identify the “Statement in dispute.” The jurors answered: “With
respect to the people outside [the complainant’s] apartment immediately prior to
9
the shooting, we are in dispute as to the number of people present and the
respective colors of their shirts.” (CR 134).
Upon receiving this completed form from the jurors, the judge summoned
them to the courtroom and confirmed their disagreement about the identified
testimony. (RR VI 92). The following testimony from Johnson was then read back
to the jurors:
Q: Then, what happened?
A: And as I was getting them from the car, the defendant
ran past me.
Q: What did you notice about him, as he ran by?
A: I noticed him because of me seeing him prior. And
there’s nothing specific that I noticed. What he was
wearing and that, you know, I had seen him before.
Q: What was he wearing?
A: A black T-shirt. I don’t really remember shoes or
anything like that.
* * * * *
Q: So there were four people total that you saw outside
that apartment?
A: Yes.
* * * * *
Q: And as you’re looking there, how many people can
you see standing there arguing?
A: Four.
10
(RR VI 93). This read-back testimony was compiled by gathering three different
portions from Johnson’s testimony. Two excerpts are found in her direct testimony,
while the third was taken from her testimony on cross-examination. (RR IV 158,
165, 184).
After this testimony was read back to the jurors, they retired for further
deliberations. (RR VI 93). None of the jurors expressed any dissatisfaction with
the selection of read-back testimony. After the jury left the courtroom, appellant’s
attorney made the following objection to the read-back process: “What I wanted to
object to was I wanted there to be the inclusion of any testimony and not just in
direct, but to also add anything from cross and any type of redirect, any issue under
the cross-examination or direct of Trancquena Johnson relating to the number of
people. I ask that it be included in its entirety.” (RR VI 94). Defense counsel then
stated, and the judge agreed, that counsel had made this same objection before the
read-back and that the judge had overruled it. (RR VI 94).
2. Argument and authority
2.1 Applicable law
If jurors disagree about the testimony of any witness, the jury may ask the
trial court to “have read to them from the court reporter’s notes that part of such
witness testimony or the particular point in dispute, and no other…” TEX. CODE
CRIM. PROC. ANN. art. 36.28 (West 2006); Arnold v. State, 234 S.W.3d 664, 676
11
(Tex. App.--Houston [14th Dist.] 2007, no pet.). After determining that the jurors
dispute a portion of testimony, the trial judge must strike a balance between
reading too much or too little testimony in response to the jury’s request. Arnold,
234 S.W.3d at 676. A trial judge’s ruling under article 36.28 should not be
disturbed on appeal unless a clear abuse of discretion and harm is shown. Howell
v. State, 175 S.W.3d 786, 792 (Tex. Crim. App. 2005).
2.2 Appellant’s specific contentions
On appeal, appellant raises a number of complaints about the trial judge’s
handling of the read-back procedure. First, appellant complains about the
boilerplate form that the judge provided the jurors. (CR 134). He claims it is
misleading because it requires the jury to narrow its request to the testimony of a
single witness under examination by a single lawyer. (appellant’s brief, p. 13). He
maintains that article 36.28 does not require such a request be limited to a single
witness’s testimony or a single lawyer’s examination. (appellant’s brief, p. 16).
Second, appellant contends the trial court’s read-back provided the jury with
an incomplete portion of testimony. (appellant’s brief, p. 13). Appellant argues the
judge should have responded to the jury’s request by providing them with
Reliford’s testimony about the number of people present near the complainant’s
apartment at the time of the shooting. (appellant’s brief, p. 18; RR V 195).
Appellant further argues that the judge should have read back a portion of
12
Johnson’s testimony on cross-examination describing the clothing of some of the
people present. (appellant’s brief, p. 19; RR IV 184-185).
Third, appellant claims the judge’s read-back exceeded the scope of the
jury’s request because it included Johnson’s testimony about appellant running past
her. (appellant’s brief, p. 19; RR IV 165). Appellant argues this testimony was
irrelevant to the requested description of the parties.
2.3 Preservation
It is well established that complaints about error in the reading back of
testimony pursuant to article 36.28 must be preserved by objection at the time of
the reading. Hollins v. State, 805 S.W.2d 475, 476 (Tex. Crim. App. 1991); Heller
v. State, 279 S.W.3d 823, 825 (Tex. App.--Amarillo 2008, no pet.); May v. State,
139 S.W.3d 93, 100 (Tex. App.--Texarkana 2004, pet. ref’d); Geisberg v. State, 945
S.W.2d 120, 125 (Tex. App.--Houston [1st Dist.] 1996), aff’d, 984 S.W.2d 245
(Tex. Crim. App. 1998). The purpose of a timely objection is to give the trial judge
the opportunity to cure the error. Hollins, 805 S.W.2d at 476; Schuster v. State, 435
S.W.3d 362, 366 (Tex. App.--Houston [1st Dist.] 2014, no pet.).
Furthermore, the point of error on appeal must comport with the objection
made at trial. Yazdchi v. State, 428 S.W.3d 831, 844 (Tex. Crim. App. 2014). An
objection based on one legal theory in the trial court may not be used to support a
different theory on appeal. Wright v. State, 374 S.W.3d 564, 575 (Tex. App.--
13
Houston [14th Dist.] 2012, pet. ref’d). The reason for requiring the trial objection
to comport with the appellate complaint is to give the trial judge the opportunity to
rule on the particular legal theory advanced by the defendant. Runnels v. State, 193
S.W.3d 105, 108 (Tex. App.--Houston [1st Dist.] 2006, no pet.). When the
appellate complaint fails to comport with the trial objection, nothing is preserved
for review. Id. This comportment requirement applies to read-back issues raised
under article 36.28. Neal v. State, 108 S.W.3d 577, 579 n.2 (Tex. App.--Amarillo
2003, no pet.).
Appellant’s trial objection to the read-back procedure was very specific. He
argued that the read-back of Johnson’s testimony should have been expanded to
include any testimony by Johnson on cross-examination or redirect examination
“relating to the number of people.” (RR VI 94). At the trial level, appellant made
none of the complaints he makes on appeal. At trial, appellant did not complain
about the nature of the boilerplate read-back form itself. He did not request that
Reliford’s testimony about the number of people present at the complainant’s
apartment be read back. He did not request the reading of Johnson’s testimony on
cross-examination describing the clothing of the people present. Nor did he
complain that the read-back exceeded the scope of the jury’s request. Furthermore,
on appeal, appellant does not complain of the matter he raised in his trial objection
14
(i.e., failing to provide Johnson’s cross-examination and redirect testimony about
the number of people present).
Accordingly, appellant’s appellate contentions fail to comport with his trial
objection. As such, he presents nothing for review. Point of error one is meritless
and should be overruled.
REPLY TO POINT OF ERROR TWO
In his second point of error, appellant contends the trial judge erred by
denying his motion to suppress Reliford’s in-court identification of him. (CR 114;
RR V 168-169, 174-175, 189-190; RR VI 12). Appellant maintains that Reliford’s
in-court identification of him was tainted by a impermissibly suggestive pretrial
identification procedure.
1. Relevant facts
After appellant became a suspect in the murder, Sergeant Jon Brooks created
a six-man photo array in which appellant’s photograph occupied the number three
position. (RR IV 12-14; RR VIII – SX 66). He showed the photospread to Johnson
who identified appellant as the man who shot and killed the complainant. (RR IV
17). The officer instructed Johnson to sign the corresponding number three slot on
the back of the photo array. (RR IV 202-1; RR VIII – SX 67). Two other witnesses
identified appellant, in some capacity, in this photo array and also signed the
number three slot below Johnson’s signature. (RR IV 26, 29-30; RR VIII – SX 67).
15
Thereafter, Reliford looked at the photo array and identified appellant in the
number three position. (RR IV 35-36). Sergeant Brooks described Reliford’s
pretrial identification as follows: “He said that’s Red, that’s the person that shot the
victim Keith, that he ran past him with the gun in his hand and he looked right at
him and he was positive that Red was the person that shot and killed Keith.” (RR
IV 36). After he identified appellant, Reliford signed the photo array below the
other three signatures. (RR VIII – SX 67).
At the suppression hearing, Sergeant Brooks allowed that permitting
Reliford to see the other three signatures attached to the number three position after
he identified appellant in the photo array could have served as some measure of
confirmation to Reliford of his previously made identification of appellant in the
number three position. (RR IV 56-59).
2. Standard of review
A trial judge’s ruling on a suppression motion is reviewed under a bifurcated
standard of review. Lyssy v. State, 429 S.W.3d 37, 42 (Tex. App.--Houston [1st
Dist.] 2014, no pet.). While an appellate court shows almost total deference to the
trial judge’s determinations of historical fact, it reviews the trial judge’s application
of the law to the facts de novo. Id. The trial judge’s ruling will be upheld on
appeal if the ruling is reasonably supported by the record and is correct on any
theory of law applicable to the case, even if the trial judge gave the wrong reason
16
for his ruling. Id.; Miller v. State, 312 S.W.3d 162, 165 (Tex. App.--Fort Worth
2010, no pet.).
An appellate court reviews de novo the question of whether a pretrial
identification procedure amounted to a denial of due process. Mendoza v. State,
443 S.W.3d 360, 363 (Tex. App.--Houston [14th Dist.] 2014, no pet.). The
defendant bears the burden of showing by clear and convincing evidence that the
procedure was impermissibly suggestive. Mims v. State, 434 S.W.3d 265, 272
(Tex. App.--Houston [1st Dist.] 2014, no pet.).
3. Argument and authority
A pretrial identification procedure may be so suggestive and conducive to
mistaken identification that subsequent use of that identification at trial would deny
the accused due process of law. Barley v. State, 906 S.W.2d 27, 32-33 (Tex. Crim.
App. 1995); Mendoza, 443 S.W.3d at 363. Appellate courts use a two-step analysis
to determine the admissibility of an in-court identification: (1) whether the out-of-
court identification procedure was impermissibly suggestive; and (2) whether that
suggestive procedure gave rise to a very substantial likelihood of irreparable
misidentification. Barley, 906 S.W.2d at 33. This analysis requires an examination
of the totality of the circumstances surrounding the particular case and
determination of the reliability of the identification. Id.
17
Regarding the first step of the analysis, there is some indication that
providing a witness such as Reliford the opportunity to learn that other witnesses
have identified the same person in a photo array may be impermissibly suggestive.
Garcia v. State, No. 14-06-00570-CR, 2007 WL 2447301, at *2 (Tex. App.--
Houston [14th Dist.] Aug. 30, 2007, pet. ref’d) (not designated for publication)
(and cases cited therein). However, assuming appellant satisfied the first step, he
cannot satisfy the second.
The second step requires an appellate court to determine whether a very
substantial likelihood for irreparable misidentification was created by the
suggestive procedure. Barley, 906 S.W.2d at 34. Reliability is the linchpin in
determining the admissibility of such identification testimony. Id. If indicia of
reliability outweigh suggestiveness, an identification is admissible. Id. To obtain a
reversal, a defendant must show by clear and convincing evidence that the
identification has been irreparably tainted. Id.
In determining whether there is a very substantial likelihood for irreparable
misidentification, an appellate court considers the following five non-exclusive
factors: (1) the witness’s opportunity to view the criminal act; (2) the witness’s
degree of attention; (3) the accuracy of the suspect’s description; (4) the level of
certainty at the time of confrontation; and (5) the time between the crime and the
confrontation. Barley, 906 S.W.2d at 34-35.
18
Regarding the first and second factors, Reliford had a good opportunity to
view appellant during the criminal act and he focused a high level of attention on
appellant at the time of murder. On the day of the murder, Reliford saw appellant
arguing with his girlfriend and with the complainant several different times
throughout the day. (RR V 144-147, 176-180). Later that night, right before the
murder, Reliford went outside his apartment and saw appellant standing on the
stairway arguing with his girlfriend. (RR V 147-148). Reliford focused his
attention on appellant because of his fight with his girlfriend. (RR V 149).
Appellant was facing Reliford. (RR V 148). Reliford confirmed he got “a good
look” at appellant. (RR V 148). He recognized appellant since appellant lived
above him. (RR V 141-142). Reliford had met appellant about two months before
the date of the murder. (RR V 144, 172-175). During this two-month period,
Reliford had often seen appellant “going and coming” and had had conversations
with appellant. (RR V 207-208).
Following appellant’s argument with his girlfriend, Reliford watched
appellant walk down the sidewalk toward the complainant’s apartment. (RR V
149). He saw appellant knock on the complainant’s door and shoot the
complainant once he emerged. (RR V 149). Reliford stated that appellant’s back
was turned when he fired the gunshots, but he explained that he did not lose sight
of appellant from the time he walked down the stairs until he reached the
19
complainant’s apartment. (RR V 150). Following the shooting, Reliford continued
to keep his eye on appellant, without losing sight of him, as appellant ran past him
with a gun in his hand. (RR V 150). Reliford looked at appellant as he ran past
him. (RR V 195).
Given the totality of these circumstances, Reliford had an excellent
opportunity to view appellant before, during, and after the murder. The record also
demonstrates that Reliford focused a very high degree of attention on appellant
during the murder, as well as immediately before and after the murder. As such,
the first two factors militate in finding that any impermissibly suggestive
identification procedure did not give rise to a very substantial likelihood of
irreparable misidentification.
Regarding the third factor, Reliford did not provide a statement on the night
of the offense; he did not talk to the police until about a month later. (RR V 160,
196-198). So, it appears he did not provide a description of the suspect.
Accordingly, this factor is neutral.
The fourth factor examines the level of certainty demonstrated by the
witness at the time of confrontation. When Reliford looked at the photo array he
told Sergeant Brooks: “… that’s Red, that’s the person that shot the victim Keith,
that he ran past him with the gun in his hand and he looked right at him and he was
positive that Red was the person that shot and killed Keith.” (RR IV 35-36).
20
Appellant’s expressed high level of certainty would be expected since he had
known appellant for about two months at the time of the murder and he focused
intently on appellant during the murder’s commission. Given the confident nature
of Reliford’s identification of appellant to Sergeant Brooks, this factor favors the
admissibility of Reliford’s in-court identification.
The fifth factor considers the time between the crime and the confrontation.
About one month separated the commission of the offense from the identification
procedure. (RR V 176, 197-198). Given Reliford’s pre-existing familiarity and
acquaintance with appellant, coupled with his intent focus on appellant during the
commission of the murder, this passage of time did not diminish Reliford’s ability
to accurately identify appellant. Barley, 906 S.W.2d at 35 (twelve-month delay did
affect witnesses’ recollection or identification of suspect). Accordingly, this factor
also favors the admissibility of Reliford’s identification of appellant.
In addition to these five non-exclusive factors, there are additional
circumstances indicating that the suggestive procedure, if any, did not create a very
substantial likelihood of irreparable misidentification. For example, Reliford and
appellant had been neighbors for about two months before the murder. (RR V 141-
144, 172-175). During this two-month period, Reliford had often seen appellant
“going and coming” and had had conversations with appellant. (RR V 207-208).
Since Reliford knew appellant before the offense, the possibility of
21
misidentification was minimal. Jenkins v. State, 912 S.W.2d 793, 808-09 (Tex.
Crim. App. 1993) (opin. on reh’g).
Furthermore, it is well settled that even when a pretrial identification
procedure is impermissibly suggestive, in-court testimony of an identification
witness will still be admissible as long as the record clearly reveals that the
witness’s prior observation of the accused was sufficient to serve as an independent
origin for the in-court identification. Lesso v. State, 295 S.W.3d 16, 25 (Tex. App.-
-Houston [1st Dist.] 2009, pet. ref’d). Reliford testified that his in-court
identification was based on having observed appellant kill the complainant. (RR V
155-156). Reliford’s confirmation that his in-court identification was independent
of the photo array is to be expected since he knew appellant before the shooting, he
intently watched appellant during the shooting, and he identified appellant in the
photo array before he was exposed to any suggestiveness resulting from his
subsequently being shown the signatures of the other witnesses who identified
appellant in the photo array.
Considering this collection of factors and circumstances, appellant has failed
to show by clear and convincing evidence that Reliford’s in-court identification
was irreparably tainted by a suggestive identification procedure. As such, the trial
judge did not abuse his discretion by denying appellant’s motion to suppress. Point
of error two is meritless and should be overruled.
22
REPLY TO POINT OF ERROR THREE
In his third point of error, appellant contends the trial judge erred during voir
dire by agreeing with a venireperson who said appellant looked like a thug. (RR II
133). Appellant argues the judge’s comment violated his presumption of innocence
and deprived him of an impartial jury.
1. Relevant facts
Near the conclusion of his voir dire examination of the venire panel, defense
counsel asked the veniremembers whether there was anything that would prevent
them from holding the State to its burden of proof and affording appellant a fair
trial, such as appellant’s appearance. (RR II 130-131). Juror number 25, Daryl
Taylor, stated that he probably could not give appellant a fair trial. (RR II 132-
133). When asked if he would hold the State to its burden of proof, Taylor replied,
“No, I would hold the State to their burden, but I don’t think I could give him a fair
trial.” (RR II 132). Defense counsel posed no further questions to this potential
juror. (RR II 132).
After defense counsel concluded his examination of the venire panel, the
judge excused the veniremembers from the courtroom, with the exception of
Taylor. Taylor approached the bench and the following exchange occurred:
Judge: You said based on his looks you could not give
him a fair trial?
Taylor: Yes, sir.
23
Judge: But you also said that you could follow the law
and you said you would hold the State to its burden of
proof of beyond a reasonable doubt?
Taylor: Yes. Just based on his looks alone, he looks like
a thug.
Judge: That’s fine. I don’t disagree with that. In fact, I
agree with that. The question is, can you follow the law
and hold the State to its burden of proof and listen to the
evidence?
Taylor: Yes, I can.
Judge: That’s all we need to know, sir. I appreciate your
time.
(RR II 133-134). Following a discussion at the bench, the judge announced, “All
right. He’s in.” (RR II 134).
2. Argument and authority
As mentioned, appellant claims the trial judge erred by referring to him as a
“thug.” Ordinarily, a complaint regarding an improper judicial comment must be
preserved at trial by a timely objection. Unkart v. State, 400 S.W.3d 94, 99 (Tex.
Crim. App. 2013); Tex. R. App. P. 33.1. Appellant failed to object when the judge
agreed with the venireman’s observation that appellant looked like a thug. (RR II
133-134). Absent a timely objection, appellant presents nothing for review and his
point of error should be overruled.
24
Nevertheless, appellant argues that a judge’s comment that taints the
accused’s presumption of innocence amounts to fundamental error that requires no
preserving objection. In support of this claim, appellant relies on Blue v. State, 41
S.W.3d 129 (Tex. Crim. App. 2000).
The trial judge in Blue, at the beginning of the voir dire process, apologized
to the group of prospective jurors for a long delay, telling them that the defendant
was still deciding whether to accept the State’s plea offer or go to trial. Blue, 41
S.W.3d at 130. The judge also told the group of potential jurors, “I prefer the
defendant to plead,” and “[We] were all trying to work toward that and save you
time and cost of time.” Id. The defendant did not object to any of the judge’s
comments. Id.
On appeal, the defendant argued that no objection is required when the trial
judge makes a fundamentally erroneous statement. Id. A plurality of the court of
criminal appeals ruled that the judge’s comments tainted the defendant’s
presumption of innocence in front of the venire. Id. at 132. The plurality further
held that such comments amounted to fundamental error of constitutional
dimension and required no objection. Id.
In a concurring opinion, Judge Keasler stated that the trial judge’s comments
were so egregious as to demonstrate a lack of impartiality. Blue, 41 S.W.3d at 138
(Keasler, J., concurring). Judge Keasler then concluded that a violation of the right
25
to an impartial judge is a structural error that cannot be forfeited by the failure to
object. Id. at 138-39.
Given the plurality status of the Blue opinion, its precedential value has been
called into question over the years. Unkart, 400 S.W.3d at 99-100. The court of
criminal appeals recently addressed this issue and ruled that “the Blue opinion has
no precedential value”:
With respect to Blue, it is not possible to ascertain a
majority holding or the narrowest ground or rule that
commands a majority of the court. The rationales of the
plurality and concurring opinions are entirely disparate:
they did not even focus on the same error, much less give
the same reason why it was error. The plurality focused
on the effect of the trial judge’s comments on the jury,
while Judge Keasler considered the comments merely as
evidence that the trial judge was biased.
Unkart, 400 S.W.3d at 101. While stripping Blue of any precedential value, the
court did hold that the opinions in the Blue case nevertheless may be considered
for any persuasive value they may have, in the same way as any other opinion that
does not command a majority of the court, such as a concurring opinion. Id.
Therefore, to the extent that appellant relies on Blue to excuse his failure to object
for preservation purposes, his claim is not supported by controlling authority.
Moreover, whatever persuasive value this Court may attach to the Blue
opinions, they do not warrant a reversal in appellant’s case because the
circumstances in his case significantly differ from those in Blue. See Unkart, 400
26
S.W.3d at 101-02. First, the Blue plurality focused on the effect of the trial judge’s
comments on the jury. Id. at 101. In Blue, the judge made his comments to the
venire at the outset of the voir dire process. Blue, 41 S.W.3d at 130. As such, the
particular veniremembers who were ultimately placed on the jury heard the judge’s
comments vitiating Blue’s presumption of innocence. In other words, the actual
jurors were tainted by the judge’s comments.
In contrast, the judge in appellant’s case made the complained-of comment
only to juror number 25. The record reflects that the judge excused the venire with
the exception of Taylor (prospective juror number 25). (RR II 133). Taylor then
approached the bench where the complained-of discussion occurred in which the
judge agreed with Taylor’s assessment that appellant looked like a thug. (RR II
133).
Accordingly, unlike the situation in Blue, the judge made the complained-of
comment to a single veniremember. And this veniremember, Taylor, did not serve
on the jury. (RR II 139-142). As such, the judge’s comment did not reach any of
the jurors, meaning appellant’s jury was no affected in any manner by the judge’s
comment. This distinction is critical since the Blue “plurality focused on the effect
of the trial judge’s comment on the jury.” Unkart, 400 S.W.3d at 101. Since the
judge’s comments had no effect on the actual jurors, the Blue plurality does not
27
support a finding of fundamental error nor does it excuse the absence of an
objection for preservation purposes.
Second, appellant can find no relief in Judge Keasler’s concurring Blue
opinion either. Judge Keasler focused on his determination that the judge’s
comments revealed that he was biased against appellant, thereby depriving Blue of
his right to an impartial judge. Blue, 41 S.W.3d at 138-39 (Keasler, J., concurring);
Unkart, 400 S.W.3d at 101. Judge Keasler stated this deprivation was an absolute
systemic error which required no objection. Blue, 41 S.W.3d at 138-39 (Keasler,
J., concurring).
Unlike the judge’s comments in Blue, the judge’s comment in this case does
not reveal a judicial bias against appellant. While the judge did agree that
appellant looked like a thug, the judge also subsequently stated that he himself
would “look like a thug, too” if he were to take off his shirt and roll up his sleeves.1
(RR II 139). The judge’s inclusion of himself in the category of people who look
like a thug strongly indicates that he would not hold a bias against appellant for
simply looking like a thug. It would seem unlikely that a judge would hold an
accused in less esteem for having a quality which was shared by the judge himself.
1
The judge’s comment is very likely a reference to his many tattoos.
http://www.chron.com/news/houston-texas/article/New-judge-says-his-former-addiction-can-
help-1540561.php (news article describing a depicting the judge’s tattoos).
28
Under these circumstances, the record does not demonstrate a biased judge.
As such, unlike the facts in Blue, appellant was not denied his right to an impartial
judge. Therefore, there was no structural error to excuse appellant’s failure to
object. An objection was required to preserve any error.
A third distinction (related to the second one above) lies in the attitudes
expressed by the respective judges. In Blue, the judge’s remarks were an
expression of exasperation and impatience with how the defendant was exercising
his rights. Unkart, 400 S.W.3d at 101 (distinguishing Blue on the different
attitudes expressed by judges). Blue’s trial judge essentially faulted the defendant
for failing to quickly give up his right to a jury trial and accept a plea offer. Id. By
contrast, appellant’s judge expressed no discontent with appellant whatsoever and
certainly did not criticize him for exercising any of his rights.
Fourth, the trial judge in Blue conveyed information about the case that the
jurors would not have otherwise known. Id. Here, the judge simply agreed with
an observation made by Taylor (who was not a juror). In other words, appellant’s
judge conveyed a belief to Taylor that Taylor already held.
Fifth, the trial judge in Blue told the jurors what he preferred the defendant
to do, but the trial judge’s comment in this case does not. Id. Blue’s judge
expressly informed the jurors that he preferred that Blue accept the State’s plea
29
offer. Id. In the instant case, the trial judge did not express any unfulfilled
expectations he held for appellant.
These various factors demonstrate that the instant case is very different from
Blue. Most importantly, the factors that were deemed critical in the Blue opinions
(i.e., a biased judge and a jury tainted by the judge’s vitiation of Blue’s
presumption of innocence) do not exist in this case. Based on these critical
distinctions, Blue has no bearing on appellant’s case, even as persuasive authority.
Absent a biased judge or the vitiation of appellant’s presumption of
innocence, there was no fundamental or structural error. Absent this type of error,
appellant was required to object to preserve any error. See Unkart, 400 S.W.3d at
102. Having failed to object, appellant presents nothing for review.
For similar reasons, appellant suffered no harm from the judge’s comment.
Tex. R. App. P. 44.2. As mentioned, the remark was conveyed to a single
venireman who did not serve on the jury. So, even assuming the comment vitiated
appellant’s presumption of innocence, the judge’s comment did not reach any of
the jurors. As such, appellant’s presumption of innocence remained untarnished
and intact before the jury. Also, as mentioned, the complained-of comment, in the
context of the judge’s other thug-related comments, did not reveal a biased judge.
Therefore, there was no harm.
Point of error three is meritless and should be overruled.
30
REPLY TO POINT OF ERROR FOUR
In his fourth point of error, appellant contends the trial judge erred by
denying his challenge for cause against juror number 25. (RR II 137). Appellant
maintains this venireman was biased and prejudiced against him as demonstrated
by this venireman’s comments that appellant looked like a thug and he could not
give appellant a fair trial (i.e., the comments discussed in the previous point of
error). (RR II 132-134). Appellant also claims the trial judge erred by attempting
to rehabilitate the venireman.
1. Burdens and the standard of review
A veniremember is challengeable 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. Gardner v. State, 306 S.W.3d 274, 295 (Tex. Crim. App. 2009).
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. Id.
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 the law, regardless
of his personal views. Id.
The proponent of the challenge for cause has the burden of establishing that
the challenge is proper. Id. The proponent does not meet this burden until he has
shown that the veniremember understood the requirements of the law and could
31
not overcome his prejudice well enough to follow the law. Id. 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’s ruling. Id.
An appellate court reviews a trial judge’s ruling on a challenge for cause
with considerable deference because the trial judge is in the best position to
evaluate a veniremember’s demeanor and responses. Id. at 295-96. A trial judge’s
ruling on a challenge for cause may be reversed only for a clear abuse of
discretion. Id. at 296. When a veniremember’s answers are ambiguous,
vacillating, unclear, or contradictory, an appellate court affords particular deference
to the trial judge’s decision. Id.
2. Relevant facts
During voir dire examination, the defense attorney told the veniremembers
that appellant was presumed innocent and then asked whether any of them were
unable to afford appellant that presumption. (RR II 131-132). The following
exchange then occurred between defense counsel and juror number 25:
Q: Juror No. 25, you think you couldn’t give him a 100
percent fair trial?
A: Probably not.
Q: Would you not hold the State to their burden of
proof?
A: No, I would hold the State to their burden, but I don’t
think I could give him a fair trial.
32
(RR II 132). Defense counsel posed no further questions to this venireman and
the venireman made no further comments during defense counsel’s voir dire
examination. (RR II 132-133).
After defense counsel concluded his examination of the venire panel, the
judge excused all the veniremembers except for juror number 25. (RR II 133). The
judge asked this venireman, Taylor, to approach the bench where the following
exchange occurred:
Judge: You said based on his looks you could not give
him a fair trial?
Taylor: Yes, sir.
Judge: But you also said that you could follow the law
and you said you would hold the State to its burden of
proof of beyond a reasonable doubt?
Taylor: Yes. Just based on his looks alone, he looks like
a thug.
Judge: That’s fine. I don’t disagree with that. In fact, I
agree with that. The question is, can you follow the law
and hold the State to its burden of proof and listen to the
evidence?
Taylor: Yes, I can.
Judge: That’s all we need to know, sir. I appreciate your
time.
(RR II 133-134). Following a discussion at the bench, the judge announced, “All
right. He’s in.” (RR II 134).
33
3. Argument and authority
As mentioned, appellant argues the trial judge should have granted his
challenge for cause against juror number 25 because he expressed a bias and
prejudice against appellant and said he could not give appellant a fair trial.
Appellant also claims the judge erred by questioning and rehabilitating the
venireman.
As a preliminary matter, appellant failed to lodge a timely objection when
the judge questioned the venireman about his ability to follow the law. (RR II 133-
134). By failing to timely object, appellant waived any complaint about the trial
judge personally posing these questions to the venireman. Tex. R. App. P. 33.1.
To preserve for appellate review a complaint about a trial judge personally
questioning a prospective juror, a defendant must raise a timely objection in the
trial court. Woodal v. State, 350 S.W.3d 691, 695 (Tex. App.--Amarillo 2011, no
pet.). Absent a timely objection, appellant waived any complaint about the trial
judge questioning the venireman.
Moreover, even assuming appellant had preserved for review his complaint
about the judge’s participation in questioning the venireman, his complaint would
be meritless. Trial judges are not prohibited from intervening in the examination
of a prospective juror; the trial judge’s discretion will be abused only when a
judge’s comments are reasonably calculated to benefit the State or prejudice the
34
defendant. Beets v. State, 767 S.W.2d 711, 745 (Tex. Crim. App. 1987); Ford v.
State, 14 S.W.3d 382, 393 (Tex. App.--Houston [14th Dist.] 2000, no pet.).
A judge may intervene with his own questions to clarify matters or
determine whether the prospective juror is able to serve as a fair and impartial
juror. Gardner v. State, 733 S.W.2d 195, 210 (Tex. Crim. App. 1987); Woodal, 350
S.W.3d at 695. In particular, a trial judge may question a venireperson in order to
clarify his position if that venireperson has equivocated on his ability to follow the
law. Dillard v. State, No. 14-06-00940-CR, 2007 WL 3342029, at *1 (Tex. App.--
Houston [14th Dist.] Nov.13, 2007, no pet.) (not designated for publication) (citing
Gardner, 733 S.W.2d at 210). A judge may even attempt to rehabilitate a
venireperson who has expressed an unequivocal position on an issue. Fransaw v.
State, 671 S.W.2d 539, 540 (Tex. App.--Houston [14th Dist.] 1983, pet. ref’d).
In this case, juror number 25 equivocated each time he responded to the
defense attorney’s question about his ability to give appellant a fair trial. The first
time, the venireman said he “probably” could not give appellant a fair trial. (RR II
132). The second time, he stated, “I don’t think I could give him a fair trial.” (RR
II 132). Neither answer was definitive; rather, both answers were equivocal.
Perillo v. State, 758 S.W.2d 567, 576 n.10 (Tex. Crim. App. 1988) (an equivocating
venireman is one who fails to take a firm position on an issue, answering, for
example, “I think.”) (citing Williams v. State, 622 S.W.2d 116, 121 (Tex. Crim.
35
Ohio App. 1981) (Teague, J., dissenting)); Johnson v. State, No. 05-94-01743-CR, 1996
WL 253345, at *3 (Tex. App.--Dallas May 13, 1996, pet. ref’d, untimely filed) (not
designated for publication).
Since juror number 25’s answers to the defense attorney failed to convey a
firm position on his ability to give appellant a fair trial, the trial judge was entitled
to follow up with his own questions and clarify the venireman’s equivocal
responses. In response to the judge’s questions, the venireman confirmed in
certain terms that he could listen to the evidence, follow the law, and hold the State
to its burden of proof. (RR II 133-134). A trial judge does not err in denying a
challenge for cause against a venireperson who can follow the law. Sattiewhite v.
State, 786 S.W.2d 271, 282 (Tex. Crim. App. 1989); Robinson v. State, 989 S.W.2d
456, 461 (Tex. App.--Houston [1st Dist.] 1999, pet. ref’d) (if venireperson testifies
unequivocally as to his ability to follow the law despite personal prejudices, trial
judge does not err in denying challenge for cause; furthermore, even if
venireperson vacillates on ability to follow law, trial judge does not err in denying
challenge for cause).
Accordingly, since the venireman stated he was able to follow the law, the
trial judge did not abuse his broad discretion in denying appellant’s challenge for
cause. Point of error four is meritless and should be overruled.
36
CONCLUSION
It is respectfully submitted that all things are regular and the conviction
should be affirmed.
DEVON ANDERSON
District Attorney
Harris County, Texas
/s/ Dan McCrory
DAN McCRORY
Assistant District Attorney
Harris County, Texas
1201 Franklin, Suite 600
Houston, Texas 77002
(713) 755-5826
TBC No. 13489950
mccrory_daniel@dao.hctx.net
37
CERTIFICATE OF SERVICE
This is to certify that a copy of the foregoing instrument has been sent to the
following email address via TexFile:
Sarah V. Wood
Attorney at Law
Sarah.wood@pdo.hctx.net
/s/ Dan McCrory
DAN McCRORY
Assistant District Attorney
Harris County, Texas
1201 Franklin, Suite 600
Houston, Texas 77002
(713) 755-5826
TBC No. 13489950
CERTIFICATE OF COMPLIANCE
The undersigned attorney certifies that this computer-generated document
has a word count of 8,272 words, based upon the representation provided by the
word processing program that was used to create the document.
/s/ Dan McCrory
DAN McCRORY
Assistant District Attorney
Harris County, Texas
1201 Franklin, Suite 600
Houston, Texas 77002
(713) 755-5826
TBC No. 13489950
Date: 3/26/2015
38