MCCALL, BRANDON DE v. the State of Texas ( 2023 )

In the Court of Criminal
Appeals of Texas
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No. AP-77,095
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BRANDON DE McCALL,
Appellant
v.
THE STATE OF TEXAS
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On Direct Appeal from Cause No. 296-81183-2018
In the 296th District Court
Collin County
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YEARY, J., delivered the opinion or a unanimous Court.
In February of 2020, a jury convicted Appellant of capital murder
for fatally shooting a peace officer who was acting in the lawful
discharge of an official duty. See TEX. PENAL CODE § 19.03(a)(1). Based
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on the jury’s answers to the special issues set forth in Texas Code of
Criminal Procedure Article 37.071, Sections 2(b) and 2(e), the trial court
sentenced Appellant to death. See TEX. CODE CRIM. PROC. art. 37.071 §
2(g). 1 Direct appeal to this Court is automatic. Id. art. 37.071 § 2(h).
Appellant raises nine points of error. 2 Having found no reversible error
as to any of Appellant’s points of error, we affirm the judgment of
conviction and sentence of death.
I. BACKGROUND
In February of 2018, Richardson Police Department officers
responded to a “shots-fired” call at an apartment complex. When the
officers arrived, they found Rene Gamez lying in a pool of blood outside
his apartment. Gamez had a gunshot wound to his lower leg and was
breathing shallowly. At that time, the officers did not know who or
where the shooter was or whether there were any additional victims
inside Gamez’s apartment.
Believing others might be in jeopardy, the officers forced their
way into the apartment. After kicking open the door, seven officers
entered the apartment and announced themselves as police. The victim,
officer David Sherrard, went in first.
As the group moved into the apartment, Appellant fired multiple
rifle rounds from a back bedroom. Sherrard was struck twice. He
announced that he was “hit” and exited the apartment.
1 Unless otherwise indicated, all subsequent citations in this opinion to
“Articles” refer to the Texas Code of Criminal Procedure.
2 Points of error four and five reference arguments raised in other points
of error and will be addressed together at the end of the opinion.
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Once outside, Sherrard collapsed. He was attended to by
paramedics on the scene and taken to a trauma unit, but he was later
pronounced dead. Appellant was then tried and convicted of capital
murder for Sherrard’s death.
II. CHALLENGES FOR CAUSE
In his first three points of error, Appellant argues that the trial
court erroneously denied four of the defense’s challenges for cause and
erroneously granted one of the State’s challenges for cause.
A venire person is challengeable for cause if he or she has a bias
or prejudice against the law upon which either party is entitled to rely.
Buntion v. State, 482 S.W.3d 58, 83−84 (Tex. Crim. App. 2016) (citing
TEX. CODE CRIM. PROC. art. 35.16 §§ (a)(9), (c)(2)). The test is whether
the bias or prejudice would substantially impair the venire person’s
ability to perform his duties in accordance with the court’s instructions
and the juror’s oath. Id. at 84. Before a venire person can be excused for
cause on this basis, the law must be explained to him, and he must be
asked whether he can follow that law regardless of his personal views.
Tracy v. State, 597 S.W.3d 502, 512 (Tex. Crim. App. 2020). The party
challenging a venire person bears the burden to establish that the
challenge is proper, and he does not meet this burden until he has shown
that the venire person understood the requirements of the law and could
not overcome his prejudice well enough to follow the law. Id. But a venire
person’s bias need not be proven with “unmistakable clarity” because
sometimes a venire person simply cannot be asked enough questions to
reach a point where his bias has been made “unmistakably clear.”
Buntion, 482 S.W.3d at 84 (quoting Wainwright v. Witt, 469 U.S. 412,
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424−25 (1985)).
When assessing a trial court’s denial of a challenge for cause, we
review the entire record to determine whether sufficient evidence exists
to support the court’s ruling. Davis v. State, 329 S.W.3d 798, 807 (Tex.
Crim. App. 2010). We reverse only for a clear abuse of discretion. Id.Because the trial judge is in the best position to evaluate a venire
person’s demeanor and responses, we review a trial court’s ruling on a
challenge for cause with considerable deference. See Tracy, 597 S.W.3d
at 512.
A. Appellant’s Challenges for Cause
In point of error one, Appellant argues that the trial court erred
in denying challenges for cause to four venire persons: Richard
Davidson; Steven Brasher; Gregory Ashcraft; and David Rogers. He
contends that the denials resulted in a jury that was biased or
prejudiced and therefore deprived him of a fair trial in violation of the
Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States
Constitution.
To establish reversible error for the erroneous denial of a
challenge for cause, a defendant must show on the record that: (1) he
asserted a clear and specific challenge for cause; (2) he used a
peremptory challenge on the complained-of venire person; (3) his
peremptory challenges were exhausted; (4) his request for additional
peremptory strikes was denied; and (5) an objectionable juror sat on the
jury. Comeaux v. State, 445 S.W.3d 745, 749 (Tex. Crim. App. 2014). By
following these steps, “the defendant shows that he actually needed the
peremptory strike that he was forced to use on a biased juror.” Id. at
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750. 3 In other words, a defendant is harmed if he is compelled to use one
of his peremptory challenges to make up for the trial court’s error in
failing to grant his proper challenge for cause, since “a peremptory
challenge was wrongfully taken from” him. Newbury v. State, 135
S.W.3d 22, 30–31 (Tex. Crim. App. 2004) (citing Martinez v. State, 763
S.W.2d 413, 415 (Tex. Crim. App. 1988)).
When the record shows that the trial court granted the
defendant’s requests for additional peremptory strikes, the defendant
must also show that at least one more challenge for cause was
erroneously denied than the number of additional peremptory
challenges he was allotted. See Mason v. State, 905 S.W.2d 570, 578
(Tex. Crim. App. 1995) (“[B]ecause appellant was granted three
additional peremptory strikes, he did not suffer the loss of three strikes.
Therefore, for appellant to demonstrate harm and, hence, reversible
error, he must show that challenges for cause on at least four
venirepersons were erroneously denied.”). Only then has the appellant
shown that he has been wrongfully deprived of a peremptory challenge.
If a defendant fails to make this showing, he fails to show harm, and his
complaint should be overruled for that reason. See id.In this case, Appellant raised challenges for cause against
Davidson, Brasher, Ashcraft, and Rogers. When those challenges were
denied, Appellant exercised peremptory strikes against them.
3 In a criminal trial, “[p]eremptory [challenges] are given to each side to
use as they see fit.” Comeaux, 445 S.W.3d at 749. Except for prohibited reasons
such as race or sex, a “defendant may use those [peremptory challenges] to
remove any member of the venire panel for any reason” or even for “no reason
at all.” Id.; TEX. CODE CRIM. PROC. art. 35.14 (“A peremptory challenge is made
to a juror without assigning any reason therefor.”).
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Ultimately, the defense used all fifteen of its originally allotted
peremptory strikes. Appellant then sought three additional strikes, two
of which were granted and exercised against venire persons Jennifer
Dominguez and David Hunter.
The trial court denied Appellant’s request for an eighteenth
peremptory challenge. As a result, Julie Meredith, a juror Appellant
identified as unacceptable to him, was seated as his twelfth juror. But
because the trial court had granted Appellant two additional
peremptory challenges, he cannot show that he was harmed unless he
can demonstrate that the trial court erred in denying at least three of
his challenges for cause. See Newbury v. State, 135 S.W.3d 22, 30–31
(Tex. Crim. App. 2004) (citing Martinez v. State, 763 S.W.2d 413, 415
(Tex. Crim. App. 1988)); Mason, 905 S.W.2d at 578.
1. Davidson
Appellant first argues that Davidson was challengeable for cause
because he “would have voted for the death penalty automatically.” See
Ladd v. State, 3 S.W.3d 547, 558–59 (Tex. Crim. App. 1999) (stating that
a venire person is challengeable for cause where he would automatically
answer the special issues in such a way that the death penalty would be
assessed); see also Banda v. State, 890 S.W.2d 42, 57 (Tex. Crim. App.
1994). Appellant emphasizes an exchange in which defense counsel and
Davidson discussed a hypothetical scenario involving a defendant found
guilty of capital murder for killing a police officer with no applicable
legal justification:
Q: So once you find that scenario to be the facts of the
case, that’s why you -- that’s what leads you to say that
that’s a person that deserves the death penalty. That type
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of basic straightforward, intentional and knowing killing of
a police officer, knowing that they are a police officer, no
defenses, no self-defense, no defense of third person, no
accident, no mistake, no mistake of fact, no duress, not
insane at the time of the offense; none of that stuff. There
is none of that stuff. Do you believe the death penalty is the
appropriate punishment for that individual that’s found
guilty of that crime?
A: Yes, sir.
Q: Okay. And that answers Special Issue 1 for you?
A: Correct.
Q: And then when you get to Special Issue #2, the
person[’]s age, that’s not going to be a mitigating factor
under those circumstances for you, is it?
A: No.
Q: All right. Their upbringing, that’s not really going to
be a mitigating factor, is it?
A: No, sir.
Q: There -- there is really not much that cuts for you as
far as something that might be considered mitigating, is
there?
A: Probably not. Like I said, it would all depend on the
circumstances of the event.
To the extent that this exchange suggested that Davidson would give an
automatic response, the rest of his voir dire demonstrates otherwise.
Throughout questioning by the State and the defense, Davidson
repeatedly stated that he would need to know the facts of the particular
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case before answering the special issues. When questioned by the State,
Davidson agreed that he could keep an open mind in the punishment
phase of trial and not answer either special issue automatically. He also
agreed that he would need to hear “all the circumstances” in order to
resolve the special issues and that he could look at all of the evidence
with a fresh set of eyes in the punishment phase if he found somebody
guilty of capital murder.
When questioning Davidson, defense counsel asked whether a
person who commits capital murder would likely commit criminal acts
of violence in the future. Davidson responded, “Probably. But like I said
before, it would be what–what was the event; you know, what was the
cause.” Davidson later reiterated that his answers to the special issues
“would depend on the circumstances of what was leading up to [the
offense].” His responses as a whole reflect his understanding that the
resolution of one special issue would not automatically resolve another.
The record supports the trial court’s determination that Davidson was
not removable for cause because he would not automatically resolve the
special issues. See Ladd, 3 S.W.3d at 558–59.
Appellant next contends that Davidson should have been
removed for cause because he could not properly consider mitigation
evidence. Under Article 37.071, if the jury returns an affirmative answer
to the future-dangerousness special issue, then it must answer the
following mitigation special issue:
Whether, taking into consideration all of the
evidence, including the circumstances of the offense, the
defendant’s character and background, and the personal
moral culpability of the defendant, there is a sufficient
mitigating circumstance or circumstances to warrant that
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a sentence of life imprisonment without parole rather than
a death sentence be imposed.
TEX. CODE CRIM. PROC. art. 37.071 § 2(e)(1) (emphasis added). Appellant
asserts that Davidson could not consider the defendant’s character and
background in answering the mitigation special issue. See Maldonado
v. State, 998 S.W.2d 239, 250 (Tex. Crim. App. 1999) (“[J]urors must be
willing to at least consider the defendant’s background and character . .
. although they need not give mitigating weight to any particular type of
evidence.”). Appellant emphasizes the following exchange:
Q: [T]he Defendant’s background, upbringing,
youth, level of intelligence, maybe, that kind of thing, that
really doesn’t come into play --
A: No, sir.
Q: -- as far as being mitigating for you?
A: No, sir.
The record does not reflect that either party explained that the
law would require Davidson to consider character and background
evidence in analyzing the mitigation special issue. Therefore, Appellant
has not shown that Davidson understood the law and could not overcome
his prejudice well enough to follow it. See Tracy, 597 S.W.3d at 512.
Moreover, while Davidson’s responses indicated that he did not give
much weight to certain types of mitigation evidence, the law does not
require a juror to consider any particular piece of evidence to be
mitigating. Hernandez v. State, 390 S.W.3d 310, 315 (Tex. Crim. App.
2012).
Additionally, the record reflects that Davidson did not dismiss all
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character and background evidence out of hand. When questioned by the
State, Davidson gave examples of evidence that he might consider
mitigating. He further explained that he would be open to listening to
the reasoning of other jurors with regard to the mitigation special issue.
Overall, the record supports the trial court’s determination that
Davidson was not mitigation impaired.
Finally, Appellant contends that Davidson should have been
removed for cause because he would not impartially assess witness
credibility. A venire person is challengeable for cause under Article
35.16, Section (a)(9), if he cannot impartially judge the credibility of
witnesses. Feldman v. State, 71 S.W.3d 738, 745 (Tex. Crim. App. 2002).
However, a venire person is not challengeable for cause simply because
he would slightly favor certain classes of witnesses, such as police
officers and doctors, when deciding credibility, because “complete
impartiality cannot be realized as long as human beings are called upon
to be jurors.” Jones v. State, 982 S.W.2d 386, 389 (Tex. Crim. App. 1998);
see also Ladd, 3 S.W.3d at 560. Before a venire person can be excused
for cause, the proponent of the challenge must show that the venire
person expressed an extreme or absolute position on the credibility of
witnesses and was not open-minded and persuadable. Feldman, 71
S.W.3d at 747; Jones, 982 S.W.2d at 389.
Davidson indicated on his juror questionnaire that he thought
police officers were more likely to tell the truth than the average person.
Under further examination, he agreed that, generally speaking, he
would be inclined to give police officers credibility over other individuals.
But he concluded that, while he would give police officers the benefit of
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the doubt, “if what they are saying doesn’t match up to what looks like
really happened, then I think I would be able to determine that.” As a
whole, Davidson’s testimony reflected that he was persuadable, was
open to questioning police testimony, and did not hold an absolute view
on police officers’ credibility. See Feldman, 71 S.W.3d at 747.
Looking at the totality of Davidson’s questioning, we conclude
that the trial court did not abuse its discretion by overruling Appellant’s
challenge for cause to Davidson.
2. Brasher
Appellant contends that the trial court erred in denying his
challenge to venire person Brasher because Brasher’s testimony
reflected that he would lower the State’s burden of proof on the future-
dangerousness special issue. To answer the future-dangerousness
special issue “yes,” the jury must find beyond a reasonable doubt that
“there is a probability that the defendant would commit criminal acts of
violence that would constitute a continuing threat to society.” TEX. CODE
CRIM. PROC. art. 37.071 § 2(b)(1). Appellant argues that the term
“probability” is not statutorily defined but is to be taken and understood
under its common meaning. See Hughes v. State, 878 S.W.2d 142, 147–
48 (Tex. Crim. App. 1992) (op. on orig. sub.). He asserts that this Court
has recognized that the common meaning of the term requires
something “more than a mere possibility” or something “more than a
bare chance.” Id. at 148. Appellant complains that Brasher consistently
stated that probability—in the context of the future-dangerousness
special issue—meant only a bare chance that something would happen.
He points to the following exchange with defense counsel:
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Q: [W]hat do you think we mean by probability?
A: Probability is a chance that it could happen.
Q: Is probability a chance?
A: That’s -- yes, probability is a chance that it could
happen.
Q: Do you understand that the legislature, when
they wrote [the future-dangerousness special issue], they
could have used any word they wanted there. They could
have put possibility, they could have put maybe, they could
have put a chance, but they used the term “probability.”
Would you agree with me that probability means more
likely than not?
A: Might. But I’ll stick to what I said, that
probability is a chance.
Q: Do you think that a probability -- after looking at
it, do you think that probability would exist, that there is
ever a chance that something could happen, then that’s a
probability to you?
A: I am still going to say probability means there is
a chance.
Q: Would you agree that there is a chance that any
of us could be a future danger?
A: Yes.
Q: So if your definition of probability is chance,
wouldn’t that lead you to find that anybody that is
convicted of capital murder would be likely to commit
future acts of violence?
A: I am just going to stick with what my --
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probability is a chance.
Appellant concludes that Brasher’s definition would lower the State’s
burden of proof on the future-dangerousness special issue.
However, defense counsel did not instruct Brasher that the law
required him to accept that “probability,” for the purposes of the future-
dangerousness special issue, meant something more than a bare chance.
Counsel merely asked Brasher his personal definition of “probability,”
and Brasher answered without the benefit of a legal explanation.
Because Brasher was not instructed on the law, Appellant has not
shown that the trial court abused its discretion by denying Appellant’s
challenge for cause to Brasher on this basis. See Tracy, 597 S.W.3d at
512.
Appellant also asserts that Brasher should have been removed for
cause because he could not consider mitigation evidence as required by
the mitigation special issue. In his juror questionnaire, Brasher
indicated that characteristics like genetics, circumstances of birth,
upbringing, and environment should not be a consideration in
determining punishment. He identified these traits as “excuses for why
me.” When the prosecutor questioned Brasher about his response, he
elaborated: “Why is someone blaming every other thing for their
situation and not taking ownership of the consequences.” Appellant
contends that this exchange showed that Brasher was incapable of
considering any mitigation evidence and should have been disqualified.
See Morgan v. Illinois, 504 U.S. 719, 739 (1992) (holding that jurors who
consider mitigating factors irrelevant should be disqualified for cause).
Appellant relies on an exchange that occurred before the law was
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explained to Brasher. The State subsequently explained that jurors
were required to consider mitigation evidence and again asked him if he
would be able to consider such evidence:
Q: [I]f you have already found somebody guilty,
[and] you have already found that they are a future threat,
can you still give consideration to whatever it is you hear
with the possibility that it may make a difference?
A: I would still, based on the facts that were given
and based on what the law is that I am supposed to follow,
that would be my decision.
Brasher repeated this sentiment in a later exchange with defense
counsel:
Q: Do you think that there [are] things that you can
consider, like birth, upbringing and environment, things
like that, that you might consider if you were on a case like
this?
A: I have never thought about that until I’ve been
presented with that question right now. Is it something
that I could consider? Yes, I can consider it.
These exchanges demonstrate that, once the law was explained to
him, Brasher communicated that he could follow the law. As the
proponent of the challenge for cause, Appellant had the burden to show
that Brasher understood what the law required from him, but that he
would be unable to follow the law. Tracy, 597 S.W.3d at 512. The trial
court did not abuse its discretion to find that Appellant did not meet his
burden. Therefore, he has not shown that the trial court abused its
discretion by overruling the challenge for cause to Brasher.
3. No Harm Shown
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As discussed above, because Appellant received two additional
peremptory strikes, he cannot demonstrate harm unless he shows that
the trial court erroneously denied at least three of his challenges for
cause. Newbury, 135 S.W.3d at 31. Appellant complains about the denial
of four challenges for cause. We have concluded that the trial court did
not err in the preceding two challenge-for-cause rulings. Accordingly,
even if we assume that the trial court erred in denying Appellant’s
challenges for cause to the two remaining venire persons at issue,
Appellant cannot show harm. See id. We overrule point of error one.
B. State’s Challenge for Cause
In his next two points of error, Appellant contends that the trial
court erroneously granted the State’s challenge for cause to venire
person Debra Solomon. 4
Under Article 35.16, Section (a)(9), the State may challenge a
venire person for cause if the person is biased or prejudiced in favor of
or against the defendant or against any of the applicable laws on which
the parties are entitled to rely. The test is whether the bias or prejudice
would substantially impair the venire person’s ability to carry out his
oath and follow instructions in accordance with the law. Tracy, 597
S.W.3d at 512. Before a venire person can be excused for cause, the law
must be explained to him, and he must be asked whether he can follow
that law regardless of his personal views. Id.
In her juror questionnaire, Solomon indicated that she would
need “one-hundred percent proof” in order to resolve the special issues
4 Appellant refers to the challenged venire person as “Soloman.”
However, the record uses the spelling “Solomon,” and this is how we will refer
to her in this opinion.
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in such a way that resulted in the application of the death penalty. At
voir dire, both the prosecutor and defense counsel explained that the law
only required that the State prove its case beyond a reasonable doubt.
Once both parties explained the law, the trial court attempted to gauge
Solomon’s understanding of the burden of proof:
COURT: When the State is asking you whether or
not you are going to require a hundred percent, the real
question is do you understand what the definition of
reasonable doubt is to you.
[SOLOMON]: Well, I could give you a lot of different
scenarios and I’m sure you could to me. But to me, I mean,
the facts would just have to be without -- undisputable. I
mean, presented to you as though they are just -- there is
not a if[,] and, or a but. No question, no gray area. It would
have to definitely be something that they had proven that
-- I mean, you are not going to sentence anybody to death
because . . . there is some lack of guilt there that isn’t
covered.
The State challenged Solomon for cause on the basis that—by requiring
“undisputable,” one-hundred percent certainty—she would hold the
State to a higher burden of proof than required by law. The trial court
ruled as follows:
[T]he Court finds that the prospective juror would hold the
State to a higher burden; and, two, the Court is going to
find on its own this is a vacillating juror. She is all over the
place. She seems to be wanting to please the attorneys and
trying to figure out what you are really asking [her] . . . and
not actually the question before [her]. So for those reasons,
the Court grants the challenge for cause by the State.
In point of error three, Appellant argues that the trial court erred
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in removing Solomon as a vacillating juror. 5 When a venire person’s
answers are vacillating, equivocating, ambiguous, unclear, or
contradictory, we afford particular deference to the trial court’s decision.
Tracy, 597 S.W.3d at 512. In an exchange with defense counsel, Solomon
agreed that she could follow the law and hold the State to the reasonable
doubt burden of proof. However, when the trial court attempted to
clarify Solomon’s understanding of the standard, she appeared to waver:
[COURT]: All right. What we are having
trouble with is we are not sure where you are in
regards to reasonable doubt when you say a
hundred percent or beyond a shadow of a doubt.
We don’t know if that’s the same thing or those
are different things for you, so tell us, if you can.
Are those different things?
[SOLOMON]: I never really gave that any
thought before. So in the last 15 seconds here, to
decide what the difference is between a
reasonable or a shadow of a doubt, I would think
that in the circumstances of guilty or not guilty,
that it would just be that it would either be -- to
me, it would have to be a hundred percent; or if it
was 95 and I -- that’s what you are saying, the
difference between a hundred reasonable and -- if
that’s it, or 95 being shadow of a doubt, if that’s
what you are -- something along that gray area
there? * * * I think that once -- if it is proven
beyond a reasonable doubt, to me a reasonable
doubt would be -- I mean, I guess if he is proving
beyond a reasonable doubt, then I would expect
5 Appellant asserts that the trial court erred in sua sponte raising
vacillation as a basis for removal. However, Appellant does not provide
argument in support of this assertion, so we will not address it. See TEX. R.
APP. P. 38.1(i).
McCALL – 18
that you would have that reasonable doubt there
or some evidence to counteract what he has
proven, and I feel that the person is guilty, then
can you prove that they are not after he has
proved that they are? I don’t know. I am not sure
what reasonable doubt here is coming down to.
When asked directly whether she would hold the State to a one-hundred
percent standard, Solomon responded, “I would need some very good
evidence, yes.” Then she concluded, “I think I would be tempted on the
hundred percent point.”
Here, the record indicates that Solomon ostensibly committed to
follow the reasonable doubt burden of proof. However, Solomon
consistently asserted that she intended to hold the State to a burden of
one-hundred percent certainty, indicating that she either
misunderstood the reasonable doubt standard or vacillated in her
commitment to follow it. Under these circumstances, the trial court
would not have abused its discretion by excusing Solomon on this
ground. Because the record supports the trial court’s removal of Solomon
on this basis, we cannot find that it erred in sustaining the State’s
challenge for cause to Solomon. We overrule point of error three.
In point of error two, Appellant asserts that the trial court erred
in granting the State’s challenge for cause because the law was not
properly explained to Solomon. He complains that the State’s
explanation of the burden of proof failed to distinguish “reasonable
doubt” from “possible doubt.” He further complains that the State
described the different standards of proof in terms of percentages (i.e.,
the reasonable doubt standard was described as “more than fifty percent
certainty” and the “beyond all possible doubt” standard was equated
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with “one hundred percent certainty”). Appellant argues that this
language confused Solomon and diluted the State’s burden of proof.
Solomon herself introduced the percentage language when she
indicated on her juror questionnaire that she would need “one-hundred
percent proof” to impose the death penalty. The record reflects that both
parties and the trial court adopted percentage analogies to clarify her
response and to determine whether Solomon could apply the correct
burden of proof.
Further, the law on the reasonable doubt standard of proof was
properly explained to Solomon. Before the trial court questioned
Solomon, the defense explained that “[t]he State doesn’t have a burden
to prove anything beyond a shadow of a doubt or all possible doubt. It is
just beyond a reasonable doubt in a juror’s mind, and there is no
definition of reasonable doubt anymore in the State of Texas.” Because
the law was properly explained to Solomon, the State only needed to
show that she could not follow the law to establish that the challenge for
cause was proper. See Tracy, 597 S.W.3d at 512. As shown above,
Solomon either misunderstood the reasonable doubt standard or
vacillated in her ability to follow it. Therefore, the trial court did not err
in concluding that Solomon could not follow the law. We overrule point
of error two.
III. CONSTITUTIONAL CHALLENGES
In points of error six, seven, and nine, Appellant complains that
the Texas statutory death penalty scheme is unconstitutional both
facially and as applied.
A. Facial Challenge–Mitigating Evidence
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In point of error six, Appellant asserts that the trial court erred
in failing to declare the Texas death penalty statute facially
unconstitutional for limiting the definition of “mitigating evidence” to
that which reduces a defendant’s “moral blameworthiness.” See TEX.
CODE CRIM. PROC. art. 37.071 § 2(f)(4). In a facial challenge like this
one, a claimant asserts that the complained-of law operates
unconstitutionally in all of its potential applications. See Estes v. State,
546 S.W.3d 691, 697–98 (Tex. Crim. App. 2018). Appellant raised this
facial constitutional challenge in a pretrial motion, which the trial court
denied.
With regard to the mitigation special issue, the trial court is
required to instruct the jury that mitigating evidence is “evidence that
a juror might regard as reducing the defendant’s moral
blameworthiness.” TEX. CODE CRIM. PROC. art. 37.071 § 2(f)(4).
Appellant contends that requiring mitigation evidence to reduce “moral
blameworthiness” creates a nexus between mitigating evidence and the
present offense because a typical jury would infer that
“blameworthiness” relates to culpability for the crime at hand. This
nexus, Appellant asserts, improperly limits the scope of mitigating
evidence and renders the statute unconstitutional under the Eighth
Amendment and Tennard v. Dretke, 542 U.S. 274, 284 (2004) (rejecting
the notion that proffered mitigation evidence must establish a nexus to
the crime in order to be relevant).
We have previously considered and rejected this same or similar
claims. See Hall v. State, 663 S.W.3d 15, 43 (Tex. Crim. App. 2021), cert.
denied, 143 S. Ct. 581 (2023); Coble v. State, 330 S.W.3d 253, 296 (Tex.
McCALL – 21
Crim. App. 2010). Appellant’s argument does not persuade us to revisit
these holdings. We overrule point of error six.
B. As Applied Challenge–Mitigating Evidence
In his seventh point of error, Appellant contends that Article
37.071, Section 2(f)(4), is also unconstitutional as applied. 6 In an as-
applied challenge, the claimant concedes the general constitutionality of
the statute but asserts that the statute is unconstitutional as applied to
his particular facts and circumstances. Estes, 546 S.W.3d at 698. In
reviewing the challenge, the Court begins with the presumption that the
Legislature acted both rationally and validly in enacting the law under
review. Id. In light of this presumption, the challenger bears the burden
of producing evidence specifically demonstrating that the law in
question is unconstitutional as applied to him. Id. That the law may be
unconstitutional as to a hypothetical third party is not sufficient or
relevant to the inquiry. See id. (citing State ex rel. Lykos v. Fine, 330
S.W.3d 904, 910 (Tex. Crim. App. 2011)).
Appellant contends that the voir dire testimony of venire persons
Gretchen Grese and Ryan Johnson showed that each inferred that
Article 37.071, Section 2(f)(4), required a nexus between mitigating
evidence and the present offense. He further argues that this inferred
nexus requirement would have caused the venire persons to ignore the
following character and background evidence: (1) testimony from
6 This provision reads: “The court shall charge the jury that in
answering [the mitigation special issue] submitted under Subsection (e) of this
article, the jury . . . shall consider mitigating evidence to be evidence that a
juror might regard as reducing the defendant’s moral blameworthiness.” TEX.
CODE CRIM. PROC. art. 37.071 § 2(f)(4).
McCALL – 22
Appellant’s former employers that they considered him non-violent,
polite, a hard-worker, and a nice person; (2) testimony from Appellant’s
friends that they had never known him to be violent or aggressive; and
(3) testimony from Appellant’s brother describing the siblings’ difficult
childhood. 7
There are two fundamental problems with Appellant’s as applied
challenge. First, Appellant relies on voir dire testimony that
encompassed only hypothetical applications of Article 37.071. At best,
this testimony showed how the individual venire persons would
approach mitigating evidence. It does not show that the statute itself
operated unconstitutionally as applied to Appellant’s facts and
circumstances. Second, at its core, the claim presents an attack on the
plain language of Article 37.071, Section 2(f)(4). By arguing that venire
persons Grese and Johnson would have applied a nexus requirement he
believes is inherent in Article 37.071, Section 2(f)(4), Appellant is
essentially just reasserting his facial constitutionality arguments that
the plain language of the statute creates a nexus requirement in
violation of the Eighth Amendment and Tennard. As discussed in the
analysis for point of error six, we have previously considered and
rejected the same or similar claims.
Appellant fails to show that the statute is unconstitutional as
applied to his particular facts and circumstances. We overrule point of
error seven.
7 The defense used a peremptory strike against venire person Grese,
and she was not seated on the jury. Therefore, her interpretation of Article
37.071 could not have affected the outcome of the case and any injury to
Appellant was purely hypothetical. See Lykos, 330 S.W.3d at 910.
McCALL – 23
C. Facial Challenge–Definitions of Terms
In point of error nine, Appellant complains that Article 37.071,
Section 2, is unconstitutional because it does not define the following
terms: “personal moral culpability,” “moral blameworthiness,”
“probability,” “criminal acts of violence,” “continuing threat to society,”
and “society.” Appellant raised these complaints in pretrial motions. The
trial court heard and overruled Appellant’s motions at a pretrial
hearing.
This Court has reviewed and rejected the same or similar claims
on several occasions. See, e.g., Jenkins v. State, 493 S.W.3d 583, 615
(Tex. Crim. App. 2016) (rejecting the need to define “probability,”
“criminal acts of violence,” and “continuing threat to society”); Coble, 330
S.W.3d at 297 (rejecting the need to define “probability,” “criminal acts
of violence,” and “society”); Davis v. State, 313 S.W.3d 317, 354–55 (Tex.
Crim. App. 2010) (rejecting the need to define “personal moral
culpability,” “moral blameworthiness,” and other terms). We decline to
revisit this issue, and we overrule point of error nine.
IV. VOIR DIRE LIMITATIONS
In point of error eight, Appellant complains that the trial court
improperly limited the defense’s voir dire questioning of venire persons,
as exemplified by the individual voir dire of venire persons Grese and
Johnson. Specifically, Appellant claims that the trial court “refused to
allow defense counsel to question prospective jurors [on] whether they
would consider defensive evidence offered in mitigation if that evidence
did not reduce the defendant’s ‘moral blameworthiness’ for the
commission of the offense.” (App. Br.: 70). Stating his claim another way,
McCALL – 24
Appellant argues that the trial court’s rulings “prohibited the defense
from conducting voir dire questioning to determine whether the jurors
could consider mitigating evidence proffered by the defense that did not
reduce the defendant’s ‘moral blameworthiness’ for the commission of
the offense.” (App. Br.: 74). He contends that the trial court’s actions
violated his right to conduct “meaningful voir dire” as required by “the
Supreme Court’s rule in Morgan v. Illinois, 504 U.S. 719 (1992), and the
Sixth, Eighth, and Fourteenth Amendments.” (App. Br.: 69).
At the outset, it should be noted that Appellant’s point of error
number eight is multifarious in that it attempts to invoke violations of
a rule announced in a United States Supreme Court opinion, the Sixth
Amendment, the Eighth Amendment and the Fourteenth Amendment
to the United States Constitution without providing separate and
distinct arguments for why each of those provisions has been violated.
Moreover, Appellant wholly fails to point to any specific question in the
record that was not permitted to be asked. Instead, he points this Court
to nine pages of the record comprising a litany of questions propounded
and dialogue between the parties and the trial court during voir dire.
(App. Br.: 70) (citing 20 RR 189−90, 194, 196; 21 RR 74−77; and 21 RR
80).
A trial court has discretion to restrict voir dire questions that are
confusing, misleading, vague, broad, or that are improper commitment
questions. See Hernandez, 390 S.W.3d at 315. We therefore review a
trial court’s ruling limiting voir dire questioning for an abuse of
discretion, focusing on whether the appellant proffered a proper
question regarding a proper area of inquiry. Id.McCALL – 25
A. The Proffered Question(s)
Individual voir dire commenced on September 30, 2019, and it
lasted until November 19, 2019. Grese was, by our count, the 58th venire
person examined, on October 21st. Johnson was the 60th venire person
examined, the next day. At the end of Johnson’s individual voir dire,
Appellant was granted a running objection to the trial court’s failure to
permit him, over the State’s objections, to pose a certain question to the
remaining venire persons. A total of 125 venire persons were examined.
Thus, Appellant complains in essence that he was deprived of asking his
proffered question to a little more than half of the venire persons.
The question Appellant wished to propound to those venire
persons pertained to their understanding of the scope of Article 37.071,
Section 2(f)(4)’s definition of “mitigating evidence.” That provision
requires the jury, in applying the second “mitigation” special issue
embodied in Article 37.071, Section 2(e)(1), to “consider mitigating
evidence to be evidence that a juror might regard as reducing the
defendant’s moral blameworthiness.” 8 Fearful that prospective jurors
might construe this statutory language in a manner that is
unconstitutionally narrow, Appellant sought to ask the venire persons a
hypothetical question. He proposed to ask whether, if they perceived
there to be some aspect in the punishment phase evidence that justified
8 Article 37.071, Section 2(e)(1) requires the trial court to instruct that
jury to answer “[w]hether, taking into consideration all of the evidence,
including the circumstances of the offense, the defendant’s character and
background, and the personal moral culpability of the defendant, there is a
sufficient mitigating circumstances or circumstances to warrant that a
sentence of life imprisonment without parole rather than a death sentence be
imposed.”
McCALL – 26
a sentence of less than death, but they construed Section 2(f)(4)’s
definition as too constricting to accommodate that evidence, they could
still answer the special issue “yes” despite their narrow understanding
of the statutory definition. The State objected that this constituted an
impermissible “commitment” question, and the trial court by and large
prohibited Appellant from obtaining an answer from either Grese or
Johnson.
A commitment question is one that commits a venire person to
resolve, or refrain from resolving, an issue a certain way after learning
a particular fact. Hernandez, 390 S.W.3d at 315. Often a commitment
question requires a “yes” or “no” answer, and the answer commits a juror
to resolve an issue in a particular way. Id. By asking, “are you going to
go ahead and answer yes or are you going to answer that question no,”
Appellant’s hypothetical posed a “yes” or “no” inquiry that sought to
commit Grese and Johnson to a particular legal resolution of the
mitigation special issue. Whether that commitment question was a
“proper” one depends upon whether the venire person’s commitment to
answer the question in a particular way would constitute a basis for a
challenge for cause. See Standefer v. State, 59 S.W.3d 177, 182 (Tex.
Crim. App. 2001) (“[F]or a commitment question to be proper, one of the
possible answers to that question must give rise to a challenge for
cause.”).
We need not decide whether a proper commitment question could
be fashioned to address Appellant’s concern about Section 2(f)(4)’s
definition of “mitigating evidence.” In our view, the specific questions
Appellant sought to ask were improper, in any event, as too confusing
McCALL – 27
and misleading. They were premised on the improper assumption that
Section 2(f)(4)’s definition is, in fact, unconstitutionally narrow, contrary
to this Court’s construction. See Coble, 330 S.W.3d at 296 (holding that
it is “not the case” that a jury would be “reasonably likely” to construe
the statutory language in an unconstitutionally narrow fashion). In
short, they misrepresented the state of the law.
B. Grese
Defense counsel began his discussion of mitigating evidence with
venire person Grese by suggesting what may well have been an
improperly broad definition of mitigation. He told her that “[e]veryone”
(presumably he meant jurors) “is allowed to be as merciful as they want
to be, period.” Of course, the United States Supreme Court has made it
clear that a juror’s exercise of mere “mercy”—that is, mercy that it is
untethered to any proffered evidentiary basis for mitigation—would be
inappropriate. See California v. Brown, 479 U.S. 538, 542 (1987)
(approving of a jury instruction in a capital case informing the jury to
avoid “mere sympathy” in assessing whether to impose the death
penalty because it instructs them to avoid considerations apart from the
evidence actually presented at the punishment phase).
Defense counsel next told Grese that he had what he himself
characterized as “a weird question” for her. The following colloquy
ensued:
[DEFENSE COUNSEL]: Now, you understand you
are going to get an instruction -- if you are on the jury in
this case, you are going to get an instruction, when it comes
to Special Issue #2, that mitigation is anything that would
affect the moral blameworthiness of an individual.
McCALL – 28
[GRESE]: Okay.
[DEFENSE COUNSEL]: That’s kind of a broad
question, but what it comes down to is this. If there is a
reason that you do not want to impose the death penalty,
any reason at all, you have the right to do that. Do you
understand?
[GRESE]: Yeah.
Again, defense counsel misinformed the venire person. A juror in a
capital prosecution may not properly, for example, refuse to impose the
death penalty simply to vindicate her conscientious scruples against the
death penalty in general. See Wainwright v. Witt, 469 U.S. 412, 424
(1985) (a prospective juror is challengeable for cause when his views
about the death penalty would “prevent or substantially impair the
performance of his duties as a juror in accordance with his instructions
and his oath”).
Defense counsel continued:
[DEFENSE COUNSEL]: Now, if the Court gives you
an instruction that it comes down to the individual’s moral
blameworthiness, is that going to be something that throws
you off or causes an issue, or is it going to be something
that you are going to feel like you have to follow or --
[STATE]: I am going to --
[GRESE]: I feel I would have to --
THE COURT: Stop, stop.
[STATE]: I am going to object at this point in asking
a juror with regard to disregarding the law. The law will be
defined by the Court.
McCALL – 29
THE COURT: I don’t like the question, so sustained.
[DEFENSE COUNSEL]: Let me say it like this. The
law requires that whatever mitigating factors you choose
must reduce moral blameworthiness, okay?
[GRESE]: Okay.
[DEFENSE COUNSEL]: If a situation like that
comes up, is that something that you can apply anyway, or
are you going to let someone tell you that your reasoning
may not meet the definition of moral blameworthiness?
[STATE]: I am going to object for a commitment
question and I am also going to object with regards to
asking the juror outside what the law is that is given by
the Court.
THE COURT: Sustained.
[DEFENSE COUNSEL]: I am going to try this one
more way, and if I get shut down, I am going to stop, okay?
[GRESE]: Okay.
[DEFENSE COUNSEL]: Hypothetically, in a
situation where you have found someone guilty, you have
gone through Special Issue #2 and -- Special Issue #1 and
you are looking at [S]pecial Issue #2, okay? And in your
mind, you have got a reason in your mind that Special Issue
#2 should be answered yes, that that person’s life should be
spared, okay?
[GRESE]: Okay.
[DEFENSE COUNSEL]: But the reasoning you
have in your mind does not affect the definition or does not
affect the moral blameworthiness, are you going to go
ahead and answer yes or are you going to answer that
McCALL – 30
question no?
[STATE]: Objection, commitment, and it does not - -
THE COURT: Sustained.
[DEFENSE COUNSEL]: Will you follow the law I’ve
been talking about the last couple of minutes, even though,
in your mind, the answer may be yes?
[STATE]: Again, the same commitment question.
THE COURT: Just ask if she is going to follow the
law?
[DEFENSE COUNSEL]: Well, are you going to
follow the law regardless of what your personal opinion is?
[GRESE]: Yes.
THE COURT: There you go. There you go.
Later, in explaining to the trial court the basis for his challenge
for cause against Grese, which was denied, defense counsel argued:
[DEFENSE COUNSEL]: Your Honor, we would
challenge the juror for cause for the following reason: The
State’s use and reliance upon the statutory definition of
mitigation as something that reduces a person’s moral
blameworthiness for the commission of the offense restricts
the proper consideration of mitigation and causes the juror
to be mitigation impaired.
THE COURT: Didn’t y’all use the same definition?
Y’all used -- in your question, you used exactly the same
definition.
***
[DEFENSE COUNSEL]: . . . Now, yes, we are both
McCALL – 31
using the same definition because it is the statutory
definition --
THE COURT: Right.
[DEFENSE COUNSEL]: -- that the Court will give.
In prior challenges to the constitutionality of that
particular definition, the Court of Criminal Appeals has
consistently said, when they deny the allegation of
unconstitutionality, that jurors somehow discern that they
are not limited to that definition. They’ve never explained
how the jurors know that, but that’s what they’ve said in
their opinion.
So, basically, all we are trying to do is show them
what the Court of Criminal Appeals says they already
know, and this is that mitigation is not really limited to
that definition. So when they are limiting it to the
definition and we are not being allowed to tell the jury that
they can, in fact, act upon their own personal moral
judgments, regardless of the definition, then we are
restricting it beyond the place where the Court of Criminal
Appeals indicates they already are.
***
And our question that we pose is if you think based
on what you’ve heard in the trial that you would answer
yes to Special [Issue] 2, but because of the Court’s
definition, they are going to answer no, because in your
mind it doesn’t reduce the moral -- personal moral
blameworthiness, and you are going to do that. So even
though you think the answer ought to be yes, and I think I
should spare this person’s life based on what I heard, I
don’t think that meets the Court’s definition of reduction of
moral blameworthiness; so, therefore, I am going to say no,
even though I would otherwise answer it yes. That’s where
we’re going.
THE COURT: Okay. I understand.
McCALL – 32
[DEFENSE COUNSEL]: I want to make sure it is
clear in the record that’s what we are trying to -- the
response we are trying to elicit so that the record is clear.
THE COURT: You probably need to be a little more
articulate with your question.
[DEFENSE COUNSEL]: I’m sure I probably could.
Appellant then exercised a peremptory challenge against Grese, and she
was excused.
C. Johnson
Defense counsel attempted to question venire person Johnson
along similar lines:
[DEFENSE COUNSEL]: So let’s say that you think
the answer to Special [Issue] 2 should be yes, but when you
think about it intellectually, you can’t square what you
think with the definition of it reduces the moral -- or the
personal moral blameworthiness of a defendant. In other
words, it is something that tells you the answer should be
yes, but when you think about what those words means to
you, personal -- reducing personal moral blameworthiness,
that doesn’t fit, so how you are stuck between, well, I think
the answer ought to be yes, but this definition the Court
gave me of what mitigation is, which is reducing this
personal moral blameworthiness, that’s what I have got to
follow. That what the law would say, okay?
So first off, can you take the oath to follow the law?
[JOHNSON]: Yes.
[DEFENSE COUNSEL]: And even though you
thought the answer would be yes, would you answer no if
you weren’t convinced that whatever you thought was
telling you to be yes didn’t reduce the personal moral
blameworthiness of the Defendant?
McCALL – 33
The State raised a commitment objection, and the trial court sustained
the objection. Defense counsel rephrased the question as follows:
[DEFENSE COUNSEL]: All right. Mr. Johnson, you
may answer yes to the Special Issue #2 based on any
evidence you have heard that could serve as a basis for you
to think that a sentence of life without parole is more
appropriate than death, regardless of any instruction given
by the Court as to what the definition of mitigation would
be.
The State objected that the question called for the juror to disregard the
law. The trial court sustained the objection, and the defense counsel
rephrased the question again:
[DEFENSE COUNSEL]: [H]aving found somebody
guilty of capital murder of a police officer and having found
beyond a reasonable doubt that Special Issue #1 is yes,
would you be able to answer Special Issue #2 yes so as to
impose a sentence of life without parole on an individual if
you thought that was the right thing to do?
[JOHNSON]: Yes. And in terms of that, the right
thing to do would be based off of the circumstances that I
am considering.
[DEFENSE COUNSEL]: Okay. But you would be, in
your mind, bound by any definition given to you by the
Court as to what the definition of mitigating would be?
[JOHNSON]: I would follow the indications of the
Court.
[DEFENSE COUNSEL]: Okay. So once again, if it
you thought that the answer would be yes but it didn’t meet
your understanding of reducing the personal moral
blameworthiness of the Defendant, you would answer --
you would follow the Court’s instruction and answer no?
McCALL – 34
[STATE]: Objection, commitment.
THE COURT: Say that again, [counsel]. I lost you on
that one.
The defense counsel again restated the question, and the State
reasserted its commitment objection. In response, the trial court
interjected:
THE COURT: All he is asking on that question is
can he follow the Court’s instruction.
[DEFENSE COUNSEL]: That’s what I am asking.
THE COURT: That’s how I took that question, so
you can answer that question.
[JOHNSON]: Yes.
Defense counsel challenged Johnson for cause based upon his
ultimate answer, explaining as follows:
[DEFENSE COUNSEL]: [B]ecause of the
instruction the Court will give as to mitigation, reducing --
being defined as reducing the personal moral
blameworthiness of the Defendant, that that instruction
flies in the face of Tennard v. Dretke, and that that - -
because the juror would follow the Court’s instruction as
the law, even though he might think there is something
that should serve as a reason for him to answer yes to
Special Issue #2 and sentence a defendant to life without
parole, he would answer that question no solely based on
the instruction of the Court of the definition of mitigation,
so we would object that the individual under the Supreme
Court of the United States is mitigationally impaired[.]
The trial court overruled Appellant’s challenge for cause, and then
McCALL – 35
granted him a running objection. It is not altogether clear, however,
whether the running objection was necessarily to the persistent failure
of the trial court to permit the question, or instead to any continued
failure to grant challenges for cause based upon the ultimate answers
Appellant was able to obtain, once he phrased the question to the trial
court’s satisfaction. 9 Appellant did not exercise a peremptory challenge
against Johnson, who ultimately served on the jury.
D. The Propriety of the Question
Appellant claims that he was impermissibly constrained in his
ability to test the qualifications of the venire persons to impose a life
sentence rather than the death penalty, under Morgan v. Illinois. See
504 U.S. 719, 736 (1992) (“Petitioner was entitled, upon his request, to
inquiry discerning those jurors who, even prior to the State’s case in
chief, had predetermined the terminating issue of his trial, that being
whether to impose the death penalty.”). But the trial court did not
completely foreclose specific voir dire about the venire persons’ ability to
consider evidence in mitigation of the death penalty, as in Morgan. See
9
Immediately after the trial court denied the challenge for cause
against Johnson, the following exchange occurred:
[DEFENSE COUNSEL]: Your Honor, may we have a
running objection, to kind of save time, just call it the Tennard
objection, where it is appropriate for -- in future instances?
THE COURT: If you think that’s appropriate, I will allow
you to have a running objection.
Appellant argues that he was thus “granted a ‘running objection’ to the [trial]
court’s action.” (App. Br.: 70). Whether that objection was to anticipated
denials of future challenges for cause or to the anticipated further denial of
Appellant’s proffered line of questioning is debatable.
McCALL – 36
id. at 723−24 (describing the trial court’s failure to permit any question
tailored specifically “to question potential jurors so as to identify and
exclude any who would vote for the death penalty in every case after
conviction for a capital offense”). It simply disallowed the form of the
specific question by which Appellant attempted to test the prospective
jurors’ qualifications in that regard. See Hernandez, 390 S.W.3d at 315(“Where the trial court does not place an absolute limitation on the
substance of an appellant’s voir dire question, but merely limits a
question due to its form, the appellant must attempt to rephrase the
question or risk waiver of the alleged voir dire restriction.”). And rightly
so.
The flaw in Appellant’s proffered question is that it assumed a
state of the law that is not accurate. It presumed that the statutory
language in Article 37.071, Section 2(f)(4), is unconstitutionally narrow
on its face, such that a juror who felt bound by a trial court’s instruction
limited to the statutory language would be constrained in his ability to
give effect to the full panoply of mitigating evidence. But this Court has
declared the contrary—at least to the extent that we have held that the
statutory language does not suggest a “nexus” requirement between the
offense and the mitigating evidence. Coble, 330 S.W.3d at 296. In fact,
the Court has observed that it is not “reasonably likely” that a jury
would “infer” such a nexus requirement from an instruction based upon
the statutory text. Id. Nor has the Court ever declared the statutory
language to be constitutionally deficient in any other regard that would
unconstitutionally circumscribe a juror’s ability to give full effect to a
defendant’s proffered evidence in mitigation of the death sentence. It
McCALL – 37
was therefore improper to predicate a voir dire question upon an
inaccurate understanding of the state of the law.
Ultimately, the problem is not with what Appellant was trying to
accomplish by his question so much as with how he was going about it.
It might have been possible for him to formulate a proper commitment
question—one that could, depending upon the answer, have given rise
to a challenge for cause. But we need not decide that question today. We
hold only that the trial court did not abuse its discretion by declining to
permit Appellant to approach this topic in the way that he did, which
was inherently confusing and misleading because it assumed that the
statutory law, to which the jurors would be bound, was somehow not the
law. To the extent that the trial court’s grant of a running objection
amounted to a ruling that Appellant would not be permitted to ask
similarly improper questions to the latter half of the venire persons on
the panel (if that is what it did), the trial court did not err.
V. LAWFULLY CONSTITUTED JURY
In points of error four and five, Appellant contends that errors in
the trial court’s rulings on challenges for cause to venire persons
Davidson, Brasher, Ashcraft, Rogers, Johnson, and Solomon, either by
themselves or in any combination, deprived him of a lawfully constituted
jury, which he claims somehow violated his rights under the federal
(Sixth Amendment and due process) and state (Article 1, Section 10)
constitutions and Article 35.16. 10 We disagree.
We have already concluded that the trial court’s denial of
10 U.S. CONST. amends. VI, XIV; TEX. CONST. art. I, § 10; TEX. CODE
CRIM. PROC. art. 35.16.
McCALL – 38
Appellant’s challenges for cause against Davidson and Brasher was
within its discretion. Appellant excused them both by peremptory
challenge, as he likewise excused Ashcraft and Rogers, so none of them
served on the jury. We have also concluded that the trial court acted
within its discretion by granting the State’s challenge for cause against
Solomon.
The only venire person about whom Appellant complains in these
points of error who ultimately served on the jury was Johnson. But
Appellant brings no independent point of error in this appeal
challenging the trial court’s denial of his challenge for cause against
Johnson. And he makes a wholly inadequate argument, within the
confines of these brief and multifarious points of error, to demonstrate
how the trial court abused its discretion by denying that challenge for
cause.
There is no right to have any particular person serve on a jury.
Colone v. State, 573 S.W.3d 249, 261 (Tex. Crim. App. 2019). Appellant
has not shown that any of the venire persons who ultimately did serve
on his jury somehow deprived him of a lawfully constituted jury—that
is to say, a jury made up of jurors who were qualified. Id. Because he
does not otherwise demonstrate how the composition of the jury that
ultimately sat violated any of the various federal and constitutional
provisions he cites, he is not entitled to relief on these claims. We
overrule points of error four and five.
VI. CONCLUSION
We affirm the trial court’s judgment of conviction and sentence of
death.
McCALL – 39
DELIVERED: October 25, 2023
DO NOT PUBLISH