Dylan A. Tristani v. State ( 2015 )

ACCEPTED
13-14-00422-cr
THIRTEENTH COURT OF APPEALS
CORPUS CHRISTI, TEXAS
3/27/2015 10:17:04 AM
DORIAN RAMIREZ
CLERK
NO. 13-14-00422-CR
IN THE COURT OF APPEALS FILED IN
13th COURT OF APPEALS
FOR THE THIRTEENTH DISTRICT
CORPUSOFCHRISTI/EDINBURG, TEXAS
TEXAS 3/27/2015 10:17:04 AM
AT CORPUS CHRISTI DORIAN E. RAMIREZ
Clerk
DYLAN A. TRISTANI,
Appellant,
v.
THE STATE OF TEXAS,
Appellee.
On Appeal from the
County Court at Law #1
Of Victoria County, Texas
Cause No. 2-100216
BRIEF FOR THE STATE OF TEXAS
STEPHEN B. TYLER
Criminal District Attorney
Victoria County, Texas
BRENDAN WYATT GUY
Assistant Criminal District Attorney
Victoria County, Texas
205 N. Bridge St. Ste. 301,
Victoria, Texas 77901-6576
bguy@vctx.org
(361) 575-0468
(361) 570-1041 (fax)
State Bar No. 24034895
Attorneys for the State of Texas
ORAL ARGUMENT NOT REQUESTED
TABLE OF CONTENTS
PAGE (S)
TABLE OF CONTENTS ......................................................................... ii
INDEX OF AUTHORITIES ...............................................................iii-iv
STATEMENT OF THE FACTS .......................................................... 1-5
SUMMARY OF ARGUMENT ............................................................. 5-8
ARGUMENT ........................................................................................ 8-24
I. The trial court did not err in admitting the
video evidence......................................................................... 8-17
II. The trial court did not erroneously prohibit
a proper voir dire question ................................................. 17-20
III. In the alternative even if there was error from
the denial of Appellant’s voir dire question
about prior jury service that error was harmless
and can therefore be disregard........................................... 20-24
PRAYER .................................................................................................. 24
SIGNATURE ........................................................................................... 24
CERTIFICATE OF COMPLIANCE ................................................... 25
CERTIFICATE OF SERVICE ............................................................. 26
Brief of Appellee ii
Victoria County Criminal District Attorney
No. 13-14-00422-CR
INDEX OF AUTHORITIES
United States Supreme Court Cases
Dalton v. Texas, 130 S. Ct. 555 (2009) ..................................................... 9
Davis v. U.S.,114 S. Ct. 2350 (1994) .................................................... 8-12
Texas Cases
Blackman v. State, 414 S.W.3d 757 (Tex. Crim. App. 2013) .............. 18
Bolden v. State, 634 S.W.2d 710 (Tex. Crim. App. 1982) .................... 18
Briggs v. State, 789 S.W.2d 918 (Tex. Crim. App. 1990) .................... 13
Broxton v. State, 909 S.W.2d 912 (Tex. Crim. App. 1995).................. 13
Buchanan v. State, 207 S.W.3d 772 (Tex. Crim. App. 2006) .............. 13
Comeaux v. State, 445 S.W.3d 745 (Tex. Crim. App. 2014) ............... 23
Dalton v. State, 248 S.W.3d 866, 869
(Tex. App.-Austin 2008, pet. ref’d),
cert. denied 130 S. Ct. 555 (2009) ........................................................ 9-12
Dinkins v. State, 894 S.W.2d 330 (Tex. Crim. App. 1995) ......... 8-10, 12
Dixon v. State, 2 S.W.3d 263 (Tex. Crim. App. 1998) ......................... 16
Easley v. State, 424 S.W.3d 535 (Tex. Crim. App. 2014) .................... 21
Hardie v. State, 807 S.W.2d 319 (Tex. Crim. App. 1991)...................... 8
In re H.V., 252 S.W.3d 319 (Tex. 2008) ................................................ 11
Brief of Appellee iii
Victoria County Criminal District Attorney
No. 13-14-00422-CR
Martinez v. State, No. 07-11-00473-CR, 2012 WL 5342546
(Tex. App.-Amarillo 2012, pet. ref’d)
(mem. op. not designed for publication) ............................................... 11
Mbuga v. State, 312 S.W.3d 657
(Tex. App.-Houston [1st Dist.] 2009, pet. ref’d) .................................... 11
Redd v. State, 578 S.W.2d 129(Tex. Crim. App. 1979) ......................... 18
Sells v. State, 121 S.W.3d 748 (Tex. Crim. App. 2003) ....................... 17
Siverand v. State, 89 S.W.3d 216
(Tex. App.-Corpus Christi 2002, no pet) .............................................. 23
State v. Herndon, 215 S.W.3d 901 (Tex. Crim. App. 2007) ................ 20
Texas Rules
TEX. R. APP. 9.4..................................................................................... 25
TEX. R. APP. 33.1............................................................................. 13, 16
TEX. R. APP. 44.2................................................................................... 22
Brief of Appellee iv
Victoria County Criminal District Attorney
No. 13-14-00422-CR
NO. 13-14-00422-CR
IN THE COURT OF APPEALS
FOR THE THIRTEEN DISTRICT OF TEXAS
AT CORPUS CHRISTI
DYLAN A. TRISTANI……..….…………………………………..Appelant
v.
THE STATE OF TEXAS,…..……………………………………...Appellee
* * * * *
STATE’S BRIEF ON THE MERITS
* * * * *
TO THE HONORABLE COURT OF APPEALS:
COMES NOW, THE STATE OF TEXAS, by and through her Criminal
District Attorney, Stephen B. Tyler, and as Appellee in the above numbered
and entitled cause, and files this the Appellee’s brief showing:
STATEMENT OF THE FACTS
Appellant’s case was called for trial on March 11, 2014. [RR-II-1].
Prior to the start of voir dire, Appellant indicated he would be going to the
Court for punishment should he be found guilty. [RR-II-6].
During Appellant’s voir dire, he asked Venire Person #24 if they had
served on a jury before, if they were the foreman, was the case a felony or
misdemeanor, did the jury reach a verdict, and did the court or the jury do
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00422-CR
1
the punishment. [RR-II-69]. After these questions were answered, the trial
court requested the attorneys approach the bench. Id. The trial court then
cautioned the Appellant not to ask the question concerning whether the
judge or the jury accessed punishment since that question would indicate
what the verdict was in the prior case. [RR-II-70]. Appellant objected to
not being permitted to ask that question. Id. The trial court overruled the
objection and informed the Appellant he could ask the questions: 1) have
you been on the jury; 2) were you the foreman; and 3) was a verdict reached.
Id. Appellant did not propose any alternate questions. Id.
Appellant then proceeded to question the remaining venire members
who had prior jury service along the questions permitted by the court. [RR-
II-69-74]. Six additional members of the venire panel, Venire Person
Maresh, Venire Person #9, Venire Person #12, Ms. Delilah Perez, Venire
Person Kaen, and Venire Person #22 all indicated prior jury service. Id.
Venire Person Maresh and Venire Person #9 stated that their juries did not
reach a verdict. [RR-II-71-72].
After the completion of voir dire questioning, Appellant requested
additional peremptory challenges for each of the venire persons who
indicated prior jury service. [RR-II-80]. Appellant contended that without
being permitted to question those venire persons further about their prior
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00422-CR
2
jury service, it would force him to assume that all of those jurors convicted
defendants and thus use up his peremptories on them rather than on other
venire persons. [RR-II-81]. Appellant then requested seven additional
peremptory challenges. Id. The trial court denied this request. [RR-II-82].
Appellant then requested to be granted additional peremptory challenges
only for the venire members who indicated prior jury service where they
reached a verdict on the case, and noted that one of the Venire members
actually had answered Appellant’s question about if the jury had reached a
verdict, and thus lowered his request to four additional peremptory
challenges. Id. The trial court also denied this request. Id. Appellant did
not request challenges for cause for any of the jurors who indicated prior
jury service on the grounds of their prior jury service. [RR-II-83-113].
Appellant sought a challenge for cause for Venire Person #10 on the
grounds that they were biased in favor of police officers. [RR-II-103]. The
trial court denied this request. Id. Appellant had Venire Person #13
questioned for possible bias but did not request a challenge for cause against
her. [RR-II-104-106]. Appellant did not seek any sort of challenge for
cause against Venire Person #18. [RR-II-83-113].
After challenges for cause were made, Appellant indicated there were
still three venire members with prior jury service within the strike zone and
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00422-CR
3
indicated he would have struck Venire Person #10, Venire Person #13, and
Venire Person #18 if the court had granted him the additional peremptories
he had requested. [RR-II-114]. Appellant then repeated his request for
additional peremptories. Id. The trial court again denied this request. Id.
Appellant asserted he used all his peremptory challenges on members with
prior criminal jury service that were within the strike range but did not
specifically identify those people. [RR-II-114].
The State’s first witness was Sergeant Jeff Strauss of the Victoria
Police Department. [RR-II-127]. Sergeant Strauss testified to being called
out on July 22, 2012 to investigate a suspect who was passed out in his
vehicle in the drive through lane of McDonalds. [RR-II-128-129]. Sergeant
Strauss then identified the Appellant as being the driver of that vehicle.
[RR-II-129]. Sergeant Strauss was then used to sponsor the video taken
from his patrol car from that night, State’s Exhibit 1. [RR-II-131-132].
The trial court then conducted a bench conference to allow Appellant
concerning the admissibility of this evidence. [RR-II-132-158]. Appellant
objected to State’s Exhibit 1 on the grounds that it contained an invocation
from the Appellant of his right to counsel. [RR-II-132]. Appellant also
noted a portion of the video showing Sergeant Strauss discussing with
another officer that Sergeant Strauss believed that the Appellant had invoked
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00422-CR
4
his rights. [RR-II-151]. Appellant did not specify whether he was actually
objecting to this later segment or was just using it as evidence to support him
re-urging his previous objection concerning the earlier portions of the video
where Sergeant Strauss had asked Appellant if he wanted an attorney. [RR-
II-151-152]. The trial court overruled Appellant’s objection. Id. At no
point during this conference or at any other time during the trial did
Appellant object to any portion of the video on the grounds that it made an
inference that Appellant had invoked his right to counsel. [RR-II].
State’s Exhibit 1 shows that the Appellant asked “can I get a lawyer?”
in a tone that was questioning. [State’s Exhibit 1 at 26:06]. Appellant then
stated, “I guess I’d like a lawyer.” [State’s Exhibit 1 at 28:57]. The officer
then asking a clarifying question about whether Appellant wanted a lawyer
to which Appellant answered, “I guess so.” [State’s Exhibit 1 at 29:03].
Redacted versions of the video were eventually entered into evidence
as State’s Exhibit 6 and 7. [RR-III-106, 109; State’s Exhibits 6-7].
Appellant was found guilty of the charged offense. [RR-IV-115].
SUMMARY OF THE ARGUMENT
The trial court did not commit any error in admitting the objected to
portions of the videos because Appellant did not definitively invoke his right
to counsel. Rather Appellant’s statements were all ambiguous, suggesting at
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00422-CR
5
most that he might want a lawyer, and that is not enough to constitute an
effective invocation of the right to counsel. Nor does the investigating
officer’s subjective belief on whether Appellant invoked or not matter
because the standard for determining whether an effective invocation
occurred is an objective standard, and by that standard Appellant did not
actually invoke his right to counsel.
Nor may Appellant now argue that even if the invocation was
ambiguous the video segment still should have been suppressed because it
implied he had invoked his right to counsel. Appellant did not make that
specific argument at trial and thus has procedurally defaulted on that claim
and is not permitted to make it for the first time on appeal.
Likewise Appellant cannot now object to the portions of the video
where Sergeant Strauss discussed with other officers whether Appellant had
invoked or not because Appellant failed to make a specific objection at trial
and indeed appears to have not actually made any objection concerning that
portion of the video. Furthermore, even if Appellant is deemed to have
made a specific objection there it would just be the same objection he made
earlier concerning his claim that he invoked his right to counsel, and thus
that objection too would fail due to it being an ineffective invocation of the
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00422-CR
6
right to counsel based on it being ambiguous as to whether Appellant was
invoking.
The trial court also did not commit any error by prohibiting Appellant
from questioning venire members about who accessed punishment during
their prior instances of jury service. Such a question is effectively asking
what the verdict of those previous trials was, and trial courts have the
discretion to disallow questions on that topic. Additionally, there is nothing
in the record to support Appellant’s claim that the trial court refused to allow
this questioning for an improper reason, but even if the trial court’s ruling
had been based on an improper basis, the ruling would still have to be
upheld so long as it can be justified by a valid legal basis. Here there were
clear, valid legal bases for not allowing such a question and therefore the
trial court’s ruling must stand.
Nor can Appellate show he suffered any harm from not being allowed
to ask such a question. Appellant’s sole justification in his brief for the
disputed question is that being denied the chance to ask this question denied
him the chance to learn about the venire member’s prior experience
accessing punishment. Such a ground was immaterial to this case since the
jury was not going to be accessing punishment. Likewise Appellant also did
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00422-CR
7
not suffer any erroneous denial of a challenge for cause. Therefore even if
there was error in denying the question, the error was harmless.
ARGUMENT
I. The trial court did not err in admitting the video evidence.
The audio portion of a video should be suppressed to the extent that it
shows a suspect invoking his constitutional rights. Hardie v. State, 807
S.W.2d 319,322 (Tex. Crim. App. 1991). However, this protection only
exists if a defendant actually invokes his right to counsel. Davis v. U.S.,114
S. Ct. 2350, 2355 (1994); Dinkins v. State, 894 S.W.2d 330, 351 (Tex.
Crim. App. 1995). If the 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” then there is no invocation of the right to
counsel and the officer does not have to cease questioning. Davis, 114 S. Ct.
at 2355; Dinkins, 894 S.W.2d at 351-352. Rather the suspect must
unambiguously request counsel. Davis, 114 S. Ct. at 2355. The inquiry into
whether a subject has actually invoked his right to counsel is purely an
objective one. Davis, 114 S. Ct. at 2355; Dinkins, 894 S.W.2d at 351.
In the present case there was no unambiguous invocation of the
right to counsel. Rather Appellant gave a tentative response when asked if
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00422-CR
8
he wanted an attorney, stating only that “I guess I’d like a lawyer” [State’s
Exhibit 7 at 10:02] and “Yeah, I guess so” when again asked if he wanted a
lawyer. [State’s Exhibit 7 at 10:08]. These are not the definite,
unambiguous invocations of the right to counsel that are required for
officer’s to have to cease questioning.
The United States Supreme Court has already found that a
defendant saying, “maybe I should talk to a lawyer” is not a clear invocation
of the right to counsel. Davis, 114 S. Ct. at 2357. Likewise the Texas Court
of Criminal Appeals determined that a defendant saying, “maybe I should
talk to someone” is also not a clear invocation of the right to counsel.
Dinkins, 894 S.W.2d at 352. Moreover, the Austin Court of Appeals found
a defendant telling an investigating officer, “I guess I should get a lawyer
before I really get into what happened” and when further questioned about
whether he wanted a lawyer, responding with: “I should get one, probably. I
guess so. I mean, I guess, I should do it. I suppose I should get a lawyer.
Oh yeah, I want one”, did not constitute a clear invocation of the right to
counsel. Dalton v. State, 248 S.W.3d 866, 869, 873 (Tex. App.-Austin
2008, pet. ref’d), cert. denied 130 S. Ct. 555 (2009). The parallels between
Dalton and the present case are obvious. Both involve suspects stating that
they guess they want a lawyer. Guessing was deemed too equivocal in
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00422-CR
9
Dalton to constitute an effective invocation of the right to counsel; it should
likewise be deemed too equivocal in this case to constitute an effective
invocation.
A suspect must express a definite desire to speak to an attorney to
constitute an actual invocation of the right to counsel. See Dinkins, 894
S.W.2d at 352 (emphasis added). A statement that involves the word
“guess” is far from definite. A person who asked their significant other,
“will you be faithful to me when I am away”, would hardly feel confident
with an answer of, “I guess so.” Likewise an attorney, questioning a voir
dire panel on if they would follow Texas law on some key component of the
case would be acting in a professionally negligent manner if they did not
attempt to clarify a venire person who answered such a question with, “I
guess I could.” Any statement with the word “guess” in it is at best a
tentative statement. Such a statement in the context of whether or not a
person wants a lawyer at best suggests that the suspect might want a lawyer,
but it clearly does not definitively establish that they do want a lawyer, and
as already discussed, putting an officer on notice that you might want a
lawyer is insufficient to constitute an actual invocation of the right to
counsel. See Davis, 114 S. Ct. at 2355; Dinkins, 894 S.W.2d at 351-352.
The invocation must be definite. It simply was not here.
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00422-CR
10
Likewise the question, “Can I get a lawyer?” is also not a clear
invocation of the right to counsel. Numerous Texas courts have considered
similar statements and found them to not be clear invocations of the right to
counsel. See In re H.V., 252 S.W.3d 319, 325 (Tex. 2008)(establishing that
the question, “I can’t afford a lawyer but is there any way I can get one?”
was not an invocation of the right to counsel); Mbuga v. State, 312 S.W.3d
657, 665 (Tex. App.-Houston [1st Dist.] 2009, pet. ref’d)(holding the
statement “Can I wait until my lawyer gets here” was not a clear and
unambiguous invocation of the right to counsel); Martinez v. State, No. 07-
11-00473-CR, 2012 WL 5342546 at 4 (Tex. App.-Amarillo 2012, pet.
ref’d)(mem. op. not designed for publication)(holding the statement, “Can I
get a lawyer in here?” was not a clear, unambiguous request for an attorney.)
At no point did Appellant ever make a clear, unambiguous invocation of his
right to counsel, and therefore he was not entitled to the constitutional
protections of an actual invocation.
Nor does it matter whether Sergeant Strauss believed the suspect was
invoking his right to an attorney or not. The test for whether a suspect has
invoked his right to counsel is not a subjective standard based on what the
investigating officer believed. It is an objective standard based on what a
reasonable officer in those circumstances would have believed. See Davis,
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00422-CR
11
114 S. Ct. at 2355; Dinkins, 894 S.W.2d at 351. Indeed the Dalton case,
which continues to closely mirror the facts of the present case, actually
involved one of the investigating officers, an Officer Basulto, reporting to
the other officers that the defendant had invoked his rights. See Dalton, 248
S.W.3d at 873. The Austin Court of Appeals found that immaterial as the
mere fact that Officer Basulto himself believed that the Appellant had
invoked his rights, did not “convert the statement at issue into the type of
unequivocal statement required.” Dalton, 248 S.W.3d at 873. In the
present case, the statements made to Sergeant Strauss were objectively
ambiguous on whether or not Appellant wanted an attorney. Therefore it
does not matter what Sergeant Strauss actually believed concerning those
statements. The statements made to him did not constitute an objective,
actual invocation of the right to counsel, and since there was no
unambiguous invocation of the right to counsel, there was no error in the
admission of the video evidence.
Nor is there any basis for Appellant’s new argument that even in the
face of an ambiguous assertion, it is still error for the trial court to have
admitted the objected to portions of video since those segments might create
the impression that Appellant had invoked his right to counsel.
Appellant did not make this argument at trial, and thus Appellant is
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00422-CR
12
now foreclosed from arguing this specific point on appeal. A trial objection
generally must be specific in order to preserve a complaint for review on
appeal. See TEX. R. APP. P. 33.1(a)(1)(A); Buchanan v. State, 207 S.W.3d
772, 775 (Tex. Crim. App. 2006). A general or imprecise objection may be
sufficient to preserve error but only if the legal basis for the error is obvious
to the court and the opposing counsel; when the legal basis of the objection
is not obvious, failure to make a specific objection at trial forfeits that issue
for appeal. Buchanan, 207 S.W.3d at 775.
The rationale for this rule is obvious. A trial court cannot
intelligently rule on objections if it does not know what those objections are.
Thus it is the responsibility of the parties to state with specificity what they
find objectionable about offered evidence. Furthermore, an objection stating
one legal theory cannot be used to support a different legal theory on appeal.
See Broxton v. State, 909 S.W.2d 912, 918 (Tex. Crim. App. 1995). And
even constitutional errors may be waived by failure to properly object at
trial. See Briggs v. State, 789 S.W.2d 918, 924 (Tex. Crim. App. 1990).
Appellant made numerous objections concerning the admission of
portions of the video evidence in this case. [RR-II-132-135, 139, 144-145,
151, III-103]. However, not once in all those many challenges to the
admissibility of the video evidence did Appellant ever object to the material
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00422-CR
13
on the grounds that, even if Appellant’s statements were not a clear
invocation of the right to counsel and instead constituted an ambiguous
invocation, those statements still should not be admitted into evidence
because they would create an inference that Appellant had invoked his right
to counsel. [RR-II-132-135, 139, 144-145, 151, III-103]. Rather,
Appellant’s attorney objected solely on the grounds that his client actually
had invoked his right to counsel. Id. Appellant’s attorney was insistent that
the Appellant made “a very firm invocation” that was “not at all ambiguous,
not at all unclear” [RR-II-135], and argued that the invocation was
“complete and clear.” [RR-II-150]. Furthermore, when asked to summarize
his objection to the objected to portion of the video Appellant characterized
it as, “My objection, the same objection, that this man invoked his right to
counsel”. [RR-II-151]. Appellant stayed remarkably consistent on that
single basis for his objection to this evidence and never proposed any
alternate theory on why the portions of the video relating to whether
Appellant wanted an attorney should be barred.
Appellant is now attempting to argue a different legal theory for why
the objected to portions of the video evidence were inadmissible then what
he argued at trial. This is improper. Perhaps if Appellant had raised this
alternate theory at trial, the trial court would have ruled differently and kept
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00422-CR
14
the objected to portions of the video out, but the Appellant did not do so.
The Appellant did not give the trial court the opportunity to rule upon this
alternate basis for challenging the objected to evidence and therefore should
no more be allowed to raise this new theory on appeal then he would be
allowed to raise an objection that the material was unfairly prejudicial or
irrelevant for the first time on appeal. Appellant procedurally defaulted on
this particular theory by failing to make a specific objection at trial on these
grounds and therefore is barred from raising this theory for the first time on
appeal.
A similar issue exists as to Appellant’s complaint about the portion
of the video where Sergeant Strauss informs another officer that he believes
the Appellant invoked his right to counsel. It is unclear if Appellant even
actually objected to this segment of the video. Appellant stated his intention
to object to the video, [RR-II-151-152], but when asked to clarify the nature
of his objection, stated that he was re-urging his earlier objection [RR-II-
152]. That would seem to mean that the Appellant was not making an
independent objection to this specific portion of the video but rather was
simply reurging his previous objection about the earlier portions of the video
and was using this portion simply to support his argument that the earlier
portions of the video he objected to constituted an actual invocation of the
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00422-CR
15
right to counsel. If that is correct then Appellant made no actual objection to
this segment of the video, and therefore failed to make the kind of timely
objection required to preserve error under Texas Rule of Appellate
Procedure 33.1(a)(1). See also Dixon v. State, 2 S.W.3d 263, 265 (Tex.
Crim. App. 1998)(holding that objections must be timely.) Thus he now
would be barred from objecting to the admissibility of this portion of the
video since he did not object to it at trial.
But even if Appellant is deemed to have actually objected to the
portion of the video concerning Sergeant Strauss’s conversation with the
other officer, Appellant’s objection to that portion of the video was still
defective due to a lack of specificity. Appellant never explained why he
found this portion of the video objectionable. [RR-II-152]. Therefore even
if Appellant is deemed to have made an objection to that portion of the
video, the objection failed to preserve any claim for appellate review on this
point due to lack of the required specificity.
Now it is possible that this Honorable Court will conclude that even
though Appellant did not articulate a specific objection to this portion of the
video, it can be inferred that he is making the same objection to this portion
of the video that he made to the earlier portions. Such a determination
would save Appellant from having procedurally defaulted on his objection to
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00422-CR
16
this portion of the video, but it still would not establish a basis for relief. If
Appellant’s only valid, properly preserved objection to this portion of the
video is the same objection he made earlier (insisting that he did invoke his
right to counsel), then this objection fails for the same reason (the invocation
was objectively ambiguous and thus did not constitute an actual invocation
of the right to counsel.)
Therefore since Appellant did not unambiguously invoke his right to
counsel and did not preserve at trial any other appellate issues that relate to
the admission of the video evidence, Appellant has no basis to challenge the
admission of the video evidence. Accordingly, his first ground of error
should be denied.
II. The trial court did not erroneously prohibit a proper voir dire
question.
Nor did the trial court commit any error in prohibiting Appellant from
asking members of the venire panel about whether it had been the judge or
the jury that accessed punishment in the prior cases where they served on a
jury. [RR-II-68-69]. A trial court has broad discretion over jury selection,
including the right to impose reasonable limits on the voir dire examination.
Sells v. State, 121 S.W.3d 748, 755 (Tex. Crim. App. 2003). This discretion
includes the authority to prohibit questions concerning the specifics of their
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Victoria County Criminal District Attorney
No. 13-14-00422-CR
17
verdicts in previous trials. See Bolden v. State, 634 S.W.2d 710, 712 (Tex.
Crim. App. 1982); Redd v. State, 578 S.W.2d 129, 130-31 (Tex. Crim. App.
1979).
A question concerning whether the judge or jury accessed punishment
in a venire person’s previous jury experience serves no purpose other than to
attempt to determine what the verdict was of that case. Indeed Appellant at
trial essentially conceded in response to the trial judge’s question that his
entire purpose in asking that question was because the answer would imply
what the verdicts were from the venire person’s prior jury service. [RR-II-
71]. Therefore Appellant’s question was exactly the kind of question about
the specifics of prior jury service that the trial court has the discretion to
disallow.
Appellant’s reliance on the Blackman case is likewise misplaced.
Blackman does not stand for the proposition that trial courts are required to
allow questioning about the specifics of prior jury service. It merely states
that a trial court can allow such questioning if it chose to do so. It puts no
obligation on the trial court to do so and in fact specifically reasserts that a
trial court can exercise its discretion to disallow those kind of questions.
Blackman v. State, 414 S.W.3d 757, 761 n.7 (Tex. Crim. App. 2013).
In the present case it was therefore obviously well within the trial
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Victoria County Criminal District Attorney
No. 13-14-00422-CR
18
court’s discretion to disallow Appellant’s proposed question. Appellant’s
question was not one that would plausibly lead to any sort of challenge for
cause. It was likewise of little value in letting a party intelligently exercise
its peremptory challenges since knowing the verdict of a previous case tells
you nothing of use if you do not also know the specific facts and
circumstances of that case. (It would take considerable follow up
questioning about those specific facts and circumstances to actually devise
anything of value from knowing the specifics of a juror’s prior jury verdict.)
Furthermore, Appellant clearly had no need to know if the venire members
had prior experience in accessing punishment, since the jury would not be
accessing punishment in the present case. (Appellant had prior to the start of
voir dire elected to go to the judge for punishment rather than the jury.)
[RR-II-6]. As such Appellant’s question was both irrelevant and an
unnecessary waste of court time and therefore the trial court acted well
within its discretion to place reasonable limits on voir dire by not permitting
the Appellant to ask a pointless question.
Appellant also now contends the trial court made its ruling on an
incorrect belief in the law. This contention is not supported by the record as
the record is silent as to why the trial court did not allow these questions to
be asked. (The record shows only that the trial court informed the Appellant
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00422-CR
19
he could not ask the question [RR-II-69-70] and did not specify why it found
the question objectionable, other than noting that the question was seeking
answers which implied what the verdict was in the prior trials. [RR-II-71].)
Since the record is silent as to the reason for why the trial court felt the
question was improper, there is no basis for concluding the trial court
disallowed the question for an erroneous reason.
At any rate there is no need for us to speculate on what the trial court’s
reasoning was because even if the trial court had ruled Appellant’s question
improper on an incorrect basis, that ruling would still have to be upheld so
long as it was correct on some other applicable legal theory. See State v.
Herndon, 215 S.W.3d 901, 905 n.4 (Tex. Crim. App. 2007). Here
Appellant’s question could fairly be disallowed both in the interest of setting
reasonable time limits and, given that the Appellant was not going to the
jury for punishment anyway, for simply being irrelevant to any issue of
importance in the trial. Therefore, even if the trial court’s ruling was for the
wrong reason, the ruling is still valid on other valid legal grounds and as
such the trial court’s ruling must be upheld.
III. In the alternative even if there was error from the denial of
Appellant’s voir dire question about prior jury service that error
was harmless and can therefore be disregard.
In the alternative, even if the trial court did commit error in refusing to
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00422-CR
20
permit Appellant to question venire members about the specifics of their
prior jury service, that error was harmless beyond a reasonable doubt and
can therefore be disregarded.
As a threshold matter, Appellant is clearly not entitled to have this
issue considered under a constitutional error analysis. Being denied one
question hardly rises to the level of being a limitation on voir dire “so
substantial” as to rise to the level of constitutional error. See Easley v. State,
424 S.W.3d 535, 541 (Tex. Crim. App. 2014). Appellant was permitted a
substantial voir dire which included extensive questioning of every venire
member who indicated prior jury service. [RR-II-47-80]. Therefore there
was no substantial limitation on Appellant’s voir dire and as such there is no
legal justification to apply a constitutional error analysis to this issue.
But even if a constitutional error framework was employed, Appellant
still has no basis for relief on this claim. Appellant’s sole argument in his
brief for why he was harmed by not being allowed to pursue this line of
inquiry in voir dire is that it “wholly prevented” Appellant from
“ascertaining whether the panel members had prior experience assessing
punishment.” [Appellant’s Brief at 24]. What Appellant fails to explain
though is why there was any need to ascertain whether the panel members
had prior experience assessing punishment.
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00422-CR
21
Appellant had already elected, prior to the start of voir dire, to go to
the judge for punishment rather than the jury. [RR-II-6]. Therefore, since
the venire members were not going to be called upon to assess punishment
in this case, their prior experience assessing punishment was wholly
irrelevant. Appellant cannot possibly have suffered any harm from not
being able to question venire members about a task that those members were
not going to be called upon to perform, and therefore it is clear beyond a
reasonable doubt that Appellant did not suffer any harm from not being
permitted to question the venire members on this point. Maybe in a trial
where Appellant was going to the jury for punishment his question would
have had some genuine merit, but in a trial where punishment was to be
assessed by the judge, the venire member’s prior experience accessing
punishment simply did not matter.
As such Appellant is not entitled to relief even under the generous
constitutional error framework much less under the much less strict non-
constitutional error framework of Texas Rule of Appellate Procedure
44.2(b). It is clear beyond a reasonable doubt that Appellant did not suffer
any harm from not being allowed to ask one rather meaningless question,
and Appellant certainly did not have any substantial rights affected by not
being permitted to ask that question as it is simply not plausible that the
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00422-CR
22
verdict of a trial would be different based on Appellant being able to ask the
venire panel a question about a function (assessing punishment) that the jury
was not even going to perform.
Nor is Appellant’s contention that he suffered harm from not being
able to use peremptory challenges on Venire members 10 and 13 persuasive.
The case Appellant cites in support of this claim relates to a defendant being
harmed by the loss of a peremptory strike due to the erroneous denial of a
challenge for cause. See Comeaux v. State, 445 S.W.3d 745, 749-751 (Tex.
Crim. App. 2014). That did not happen in this case. Appellant did not even
request a challenge for cause on Venire member 13. [RR-II-104-106]. And
while Appellant did attempt to challenge for cause Venire member 10 at trial
[RR-II-103], Appellant has not re-litigated that issue in his appeal and thus
has implicitly conceded that the trial court was correct in denying his
challenge for cause. See Siverand v. State, 89 S.W.3d 216, 220 (Tex. App.-
Corpus Christi 2002, no pet) (standing for the proposition that when a party
does not file a brief it is conceding the issue. The same logic would seem to
suggest that when a party does not raise an appellate issue, it is effectively
conceding the trial court ruling was correct on that point.) As such given
that there was no erroneous denial of a challenge for cause in this case,
Appellant has no grounds to argue he suffered harm due to Venire members
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00422-CR
23
10 and 13 serving on the jury.
Therefore even if there was error from the denial of Appellant’s
question the error was harmless by both the constitutional and non-
constitutional standards of review, and as such the error can be discarded.
PRAYER
WHEREFORE, PREMISES CONSIDERED, the State prays that this
Honorable Court affirm the judgment of the trial court.
.
Respectfully submitted,
STEPHEN B. TYLER
CRIMINAL DISTRICT ATTORNEY
/s/ Brendan W. Guy
Brendan W. Guy
Assistant Criminal District Attorney
SBN 24034895
205 North Bridge Street, Suite 301
Victoria, Texas 77902
E-mail: bguy@vctx.org
Telephone: (361) 575-0468
Facsimile: (361) 576-4139
ATTORNEYS FOR THE APPELLEE,
THE STATE OF TEXAS
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00422-CR
24
CERTIFICATE OF COMPLIANCE
In compliance with Texas Rule of Appellate Procedure 9.4(i)(3), I,
Brendan Wyatt Guy, Assistant Criminal District Attorney, Victoria County,
Texas, certify that the number of words in Appellee’s Brief submitted on
March 27, 2015, excluding those matters listed in Rule 9.4(i)(1) is 5,352.
/s/ Brendan W. Guy
Brendan W. Guy
Assistant Criminal District Attorney
SBN 24034895
205 North Bridge Street, Suite 301
Victoria, Texas 77902
E-mail: bguy@vctx.org
Telephone: (361) 575-0468
Facsimile: (361) 576-4139
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00422-CR
25
CERTIFICATE OF SERVICE
I, Brendan Wyatt Guy, Assistant Criminal District Attorney, Victoria
County, Texas, certify that a copy of the foregoing brief has been served on
Norman Silverman, Attorney for the Appellant, by depositing same in the
United States Mail, postage prepaid on the day of March 27, 2015.
/s/ Brendan W. Guy
Brendan W. Guy
Assistant Criminal District Attorney
SBN 24034895
205 North Bridge Street, Suite 301
Victoria, Texas 77902
E-mail: bguy@vctx.org
Telephone: (361) 575-0468
Facsimile: (361) 576-4139
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00422-CR
26