Gonzales, Henry Jr. ( 2015 )

PD-0584-15
PD-0584-15 COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 5/14/2015 4:20:00 PM
Accepted 5/15/2015 11:47:13 AM
ABEL ACOSTA
NO. PD-______-15 CLERK
IN THE TEXAS COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
HENRY GONZALES, JR.,
Petitioner
V.
THE STATE OF TEXAS,
Respondent
PETITION FOR DISCRETIONARY REVIEW
OF THE DECISION OF
THE COURT OF APPEALS
FOR THE THIRD DISTRICT OF TEXAS
AUSTIN, TEXAS
ON APPEAL FROM THE JUDGMENT RENDERED BY
THE 299TH JUDICIAL DISTRICT COURT
OF TRAVIS COUNTY, TEXAS
CRIMINAL ACTION NO. D-1-DC-12-904023
HONORABLE KAREN SAGE, JUDGE PRESIDING
ORAL ARGUMENT REQUESTED
RICHARD D. REED
316 W. 12th Street, Suite 313
Austin, Texas 78701-1820
512-322-9443
rick.reed@maverickcounsel.com
May 15, 2015 State Bar No. 16686100
LEAD COUNSEL FOR PETITIONER
IDENTITY OF JUDGE, PARTIES, AND COUNSEL
Trial Court Judge: Hon. Karen Sage, Judge
299th Judicial District Court
509 West 11th Street, 8th Floor
Austin, Texas 78701-2103
Petitioner: Henry Gonzales, Jr.
Mark W. Stiles Unit
3060 FM 3514
Beaumont, Texas 77705-7635
Trial Counsel for Petitioner: Richard D. Reed
Law Office of Rick Reed
316 W. 12th Street, Suite 313
Austin, Texas 78701-1820
Hipolito ‘Polo’ Gonzalez, III
Hipolito Gonzalez Law Firm, P.C.
1411 West Avenue, Suite 100
Austin, Texas 78701-1537
Appellate Counsel for Petitioner: Richard D. Reed
Law Office of Rick Reed
316 W. 12th Street, Suite 313
Austin, Texas 78701-1820
Respondent: The State of Texas
Trial Counsel for State: Mona Shea
Travis County District Attorney’s Office
509 West 11th Street, Suite 1.100
Austin, Texas 78701-2103
Christopher H. Baugh
Travis County District Attorney’s Office
509 West 11th Street, Suite 1.100
Austin, Texas 78701-2103
- ii -
Appellate Counsel for State: Georgette Hogarth
Travis County District Attorney’s Office
509 West 11th Street, Suite 1.100
Austin, Texas 78701-2103
- iii -
TABLE OF CONTENTS
IDENTITY OF JUDGE, PARTIES, AND COUNSEL ................................................. ii
INDEX OF AUTHORITIES .............................................................................................. v
STATEMENT REGARDING ORAL ARGUMENT..................................................... 2
STATEMENT OF THE CASE........................................................................................... 2
STATEMENT OF PROCEDURAL HISTORY .............................................................. 3
GROUNDS FOR REVIEW ................................................................................................ 4
Is the trial court’s erroneous exclusion of the following commitment
question that Petitioner’s trial counsel sought to ask prospective jurors
during his voir dire examination of the jury panel subject to a harm
analysis: If you served as a juror in a murder case, and you heard enough
evidence during the trial that you were convinced that the defendant
probably committed the offense charged, but you were not convinced
beyond a reasonable doubt that he did so, could you follow the law and
acquit him?
REASONS FOR GRANTING REVIEW ......................................................................... 4
STATEMENT OF FACTS ................................................................................................... 4
ARGUMENT ......................................................................................................................... 8
PRAYER FOR RELIEF ..................................................................................................... 16
CERTIFICATE OF SERVICE.......................................................................................... 17
CERTIFICATE OF COMPLIANCE............................................................................... 18
APPENDIX ....................................................................................................................... Post
- iv -
INDEX OF AUTHORITIES
CASES
Arizona v. Fulminante, 499 U.S. 279 (1991).................................................................... 10, 13
Cage v. Louisiana, 498 U.S. 39 (1990)................................................................................ 9, 10
Easley v. State, 424 S.W.3d 535 (Tex. Crim. App. 2014)................................................... 2, 6
Gonzales v. State, 994 S.W.2d 170 (Tex. Crim. App. 1999).....................................2, 6, 9, 10
Homan v. State, 662 S.W.2d 372 (Tex. Crim. App. 1984) ................................................... 10
In re Winship, 397 U.S. 358 (1970) ....................................................................................... 10
Jones v. State, 223 S.W.3d 379 (Tex. Crim. App. 2007) ......................................................... 2
Morgan v. Illinois, 504 U.S. 719 (1992) .................................................................................. 16
Nunfio v. State, 808 S.W.2d 482 (Tex. Crim. App. 1991)...................................................... 2
Rose v. Clark, 478 U.S. 570 (1986) .................................................................................. 12, 13
Sullivan v. Louisiana, 508 U.S. 275 (1993) .................................. 9, 10, 11, 12, 13, 14, 15, 16
RULES
TEX. R. APP. P. 44.2................................................................................................................. 6
TEX. R. APP. P. 66.3(b) ........................................................................................................ 6, 7
-v-
NO. PD-______-15
IN THE TEXAS COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
HENRY GONZALES, JR.,
Petitioner
V.
THE STATE OF TEXAS,
Respondent
PETITION FOR DISCRETIONARY REVIEW
OF THE DECISION OF
THE COURT OF APPEALS
FOR THE THIRD DISTRICT OF TEXAS
AUSTIN, TEXAS
ON APPEAL FROM THE JUDGMENT RENDERED BY
THE 299TH JUDICIAL DISTRICT COURT
OF TRAVIS COUNTY, TEXAS
CRIMINAL ACTION NO. D-1-DC-12-904023
HONORABLE KAREN SAGE, JUDGE PRESIDING
TO THE HONORABLE JUDGES OF SAID COURT:
NOW COMES Petitioner, Henry Gonzales, Jr., by and through his attorney of
record, Richard D. Reed, and, pursuant to the provisions of Rule 66, Texas Rules of
Appellate Procedure, et seq., hereby petitions this Court to review the decision of the
court of appeals affirming the judgment rendered by the trial court in the above-
referenced criminal action.
STATEMENT REGARDING ORAL ARGUMENT
This case presents significant issues of state and federal constitutional law, the
resolution of which potentially affects every murder case tried before a jury in this
state. Oral argument would be helpful because the issues presented are similar to, but
nevertheless fundamentally distinguishable from, certain questions that this Court has
previously addressed. See, e.g., Nunfio v. State, 808 S.W.2d 482 (Tex. Crim. App. 1991),
Gonzales v. State, 994 S.W.2d 170 (Tex. Crim. App. 1999), Jones v. State, 223 S.W.3d 379
(Tex. Crim. App. 2007), and Easley v. State, 424 S.W.3d 535 (Tex. Crim. App. 2014).
Accordingly, the proper resolution of such issues will require a thorough
understanding of how they differ from questions that this Court has previously
addressed. Oral argument can facilitate such an understanding.
STATEMENT OF THE CASE
On March 12, 2012, a Travis County grand jury issued an indictment in the
above-referenced criminal action charging Petitioner, as a habitual felony offender,
with the first-degree felony offense of murder. C.R. at 1–2.1 On August 27, 2012, the
299th Judicial District Court of Travis County empaneled a jury for trial of the
aforesaid criminal action, and Petitioner subsequently entered a plea of “not guilty” to
1
As used herein, “C.R.” refers to the clerk’s record, and “R.R.” refers to the reporter’s record.
2
the aforesaid charge. C.R. at 72–80, 153; III R.R. at 177; IV R.R. at 18–23. C.R. at
72–80; III R.R. at 177.
On August 31, 2012, the jury convicted Petitioner of the aforesaid charge, and
the trial court thereupon held a hearing before the jury to determine Petitioner’s
punishment. C.R. at 153; VII R.R. at 110–111, 113–122, 126–136. At the conclusion
of the punishment hearing, the jury returned a verdict finding the enhancement
allegations set forth in the indictment to be true and assessing Petitioner’s punishment
at imprisonment in the Texas Department of Criminal Justice for life. C.R. at 137;
VII R.R. at 146.
On September 4, 2012, Petitioner filed a motion for new trial with the trial
court. C.R. at 171–172; VIII R.R. at 1, 8. On January 9, 2013, Petitioner filed a
written notice of appeal with the trial court.2
STATEMENT OF PROCEDURAL HISTORY
On December 4, 2014, the Court of Appeals for the Third District of Texas
2
On September 5, 2012, the trial court entered an order removing Petitioner’s trial counsel as his
attorney of record in the case below and appointing another attorney to represent him in all post-
conviction proceedings related thereto. That order effectively divested Petitioner’s trial counsel of
the authority to file a notice of appeal on behalf of Petitioner, prompting him to file a petition for
writ of mandamus with the Court of Appeals for the Third District of Texas seeking vacation of
the order. C.R. at 335–386. The court of appeals subsequently dismissed the petition as moot after
Judge Bob Perkins, who was assigned to the case below after the trial judge recused herself, signed
an order granting Petitioner’s motion to set aside the trial court’s order removing his trial counsel as
his attorney of record in the case below. In re Gonzales, No. 03-12-00611-CV (Tex. App.—Austin
Jan. 17, 2013, no pet.) (mem. op. not designated for publication).
3
issued a memorandum opinion affirming the judgment of the trial court. On
December 19, 2014, Petitioner filed a motion for rehearing, which was subsequently
denied on March 25, 2015. On April 9, 2015, Petitioner filed a motion for en banc
reconsideration, which was denied on April 14, 2015.
GROUNDS FOR REVIEW
Is the trial court’s erroneous exclusion of the following commitment
question that Petitioner’s trial counsel sought to ask prospective jurors
during his voir dire examination of the jury panel subject to a harm
analysis: If you served as a juror in a murder case, and you heard enough
evidence during the trial that you were convinced that the defendant
probably committed the offense charged, but you were not convinced
beyond a reasonable doubt that he did so, could you follow the law and
acquit him?
REASONS FOR GRANTING REVIEW
The court of appeals has erroneously decided important questions of
state and federal law that have not been, but should be, settled by this
Court. TEX. R. APP. P. 66.3(b).
STATEMENT OF FACTS
During his voir dire examination of the jury panel, Petitioner’s trial counsel
sought to ask each prospective juror the following commitment question: “Let’s
suppose that you serve on a jury in a criminal case, the charge is murder, […] and you
have heard enough evidence that you think that he or she probably did do it, […]
4
You’re convinced that it is more likely than not that he did commit the murder, but
you are not convinced beyond a reasonable doubt. If you found yourself in that
situation, could you follow the law and acquit the person on trial?” III R.R. at 141–
44.
The lead prosecutor objected that the foregoing question constituted “an
improper commitment question.” III R.R. at 144. The trial court carefully avoided
expressly ruling upon the objection and instead articulated a different question that it
deemed “the proper question,” i.e., “will you follow the law and hold the State to its
standard of beyond a reasonable doubt,” “are you going to hold the State to its
standard of beyond a reasonable doubt.” Id. Petitioner’s trial counsel, however,
demurred to the trial court’s suggestion that he ask the judicially-approved question
and informed the court, “I’m asking that I be permitted to ask them whether they can
follow the law and acquit if they are not convinced beyond a reasonable doubt of this
man’s guilt.” Id. The trial court responded equivocally, “That’s fine. Yes,” prompting
Petitioner’s trial counsel to inquire, “Is the Court instructing me that I’m not
permitted to ask that question?” The trial court then unequivocally replied, “Yes.” III
R.R. at 144–145.
In his first point of error on appeal, Petitioner contended that “[t]he trial court
committed reversible error in prohibiting defense counsel from asking the prospective
jurors whether they could follow the law and acquit someone charged with murder if
5
they were not convinced beyond a reasonable doubt that he had committed the
offense charged.” App. Br. at 29–30. The court of appeals concluded that defense
counsel’s question “was proper because it sought to determine whether the venire
members could follow the law by committing to an acquittal if they were not
convinced beyond a reasonable doubt of [Petitioner’s] guilt and because it did not
include any additional facts beyond those required for this legal requirement.”
Gonzales v. State, No. 03-12-00620-CR, slip op. at 3 (Tex. App.—Austin Dec. 4, 2014)
(mem. op. not designated for publication). Consequently, the court of appeals held
that the trial court abused its discretion in prohibiting Petitioner’s trial counsel from
asking the question. Id. However, in apparent reliance upon this Court’s opinion in
Gonzales v. State, 994 S.W.2d 170 (Tex. Crim. App. 1999), the court of appeals went on
to conduct a harm analysis under Rule 44.2 of the Texas Rules of Appellate
Procedure. Id.
After concluding that Petitioner’s trial counsel “was not entirely precluded from
discussing and explaining the beyond-a-reasonable-doubt standard,” the court of
appeals, relying upon dicta contained in this Court’s opinion in Easley v. State, 424
S.W.3d 535, 541–42 (Tex. Crim. App. 2014), reviewed the trial court’s erroneous
exclusion of his question under the non-constitutional harm standard set forth in Rule
44.2(b), which provides that any non-constitutional “error, defect, irregularity, or
variance that does not affect substantial rights must be disregarded.” Gonzales, slip op.
6
at 4–5; TEX. R. APP. P. 44.2(b). Then, following the guidelines suggested in Rich v.
State, 160 S.W.3d 575, 577 (Tex. Crim. App. 2005), the court of appeals considered the
trial court’s voir dire error in the context of the following factors: Petitioner’s “ability
to generally pursue the issue of reasonable doubt during voir dire,”3 the trial court’s
jury instructions, the evidence of Petitioner’s guilt, which the court characterized as
“overwhelming,” and certain remarks made by Petitioner’s trial counsel during closing
argument suggesting that the prosecutors had “proven that [Petitioner] probably did
kill [the deceased], but they didn’t prove beyond a reasonable doubt that he did.” The
court concluded that when viewed in context of the aforesaid factors, “the trial
court’s error in prohibiting defense counsel from asking his one preferred voir-dire
question did not have a substantial and injurious influence in determining the jury’s
verdict.” Gonzales, slip op. at 5. Consequently, the court overruled the point of error
that gives rise to the grounds for review presented in this petition. Id.
3
The court of appeals erroneously concluded that defense counsel “was allowed to elicit the same
general information as that likely to be gleaned from his preferred question.” As Petitioner pointed
out in his briefs filed with the court of appeals, obtaining a definitive commitment from every
prospective juror in a murder case that he or she could follow the law and acquit the defendant if he
or she were convinced from the evidence that the defendant probably committed the offense, but he
or she were not convinced beyond a reasonable doubt that the defendant did so, elicits substantially more
information from such prospective juror than the abstract and purely-conceptual question, “[A]re
you going to hold the State to its standard of beyond a reasonable doubt[?]” See App. Br. at 55–61,
App. R. Br. at 15–24.
7
ARGUMENT
When the court of appeals affirmed the judgment rendered by the trial court in
the above-referenced criminal action, it erroneously decided important questions of
state and federal law that have not been, but should be, settled by this Court. TEX. R.
APP. P. 66.3(b). The issue presented in Petitioner’s first point of error on appeal was
not whether the erroneous exclusion of his trial counsel’s voir dire question had a
substantial and injurious influence upon the jury’s deliberations. Rather, it was
whether the error precluded Petitioner’s trial counsel from ensuring that each person
who ultimately served as a juror was legally qualified to serve vis-à-vis the
constitutionally-mandated standard of proof beyond a reasonable doubt that jurors
are required to apply in every criminal case. Any prospective juror who would convict
someone of murder merely because he or she were convinced from the evidence that
the defendant probably committed the offense would be legally disqualified from
serving as a juror in a murder case.
The question that Petitioner’s trial counsel sought to ask was intended to trigger
genuine, soul-searching responses from the prospective jurors, asking them to imagine
serving on a jury where the person on trial was charged with murder; to imagine that
they had heard enough evidence that they were convinced that the defendant probably
committed the murder but they were not convinced beyond a reasonable doubt that he
8
had done so, and then to say whether they could follow the law and acquit the person
on trial. It was a carefully-worded, hypothetical question designed to compel each
prospective juror to solemnly consider the State’s burden of proof and search his or
her conscience and decide whether he or she could really follow the law and acquit
someone charged with murder in such a circumstance. Had defense counsel been
permitted to ask that question and elicit truthful answers from each member of the
jury panel, he undoubtedly would have obtained valuable information that would have
assisted him in intelligently exercising his peremptory challenges and challenges for
cause. In stark contrast to the question that defense counsel sought to ask, the one
that the trial court permitted him to ask was categorically different; it was purely
conceptual and required no such soul-searching. As a result, defense counsel was
unable to glean any such information from any member of the panel.
This Court has previously observed that the United States Supreme Court has
“never held that erroneously restricting proper questions during jury voir dire is
structural error of a federal constitutional nature.” Gonzales, 994 S.W.2d at 171.
However, Sullivan v. Louisiana, 508 U.S. 275 (1993), one of the cases cited in Gonzales
where the Supreme Court found a structural error, involved an issue remarkably
similar to the one presented in the case at bar. In Sullivan, the trial court had given the
jury a definition of “reasonable doubt” that was, as the State had conceded below,
“essentially identical to the one held unconstitutional in Cage v. Louisiana, 498 U.S. 39
9
(1990)(per curiam).” Sullivan, 508 U.S. at 277. According to the Supreme Court’s
opinion in Cage, “a reasonable juror could have interpreted the instruction to allow a
finding of guilt based on a degree of proof below that required by the Due Process Clause.”
Cage, 498 U.S. at 41 (emphasis added).
The error committed by the trial court in the case below is categorically
immune to a harmless error analysis because it constitutes structural error of a federal
constitutional nature tantamount to the error committed by the trial court in Sullivan v.
Louisiana, 508 U.S. 275 (1993).4 The burden of the State to prove each and every
element of the offense charged beyond a reasonable doubt applies to every criminal
case. Homan v. State, 662 S.W.2d 372, 374 (Tex. Crim. App. 1984), citing In re Winship,
397 U.S. 358 (1970). It need not be raised by any evidence; it is raised by the mere
presentment of an indictment. It necessarily follows that the right of a defendant to
an acquittal if the State fails to sustain its burden also applies to every criminal case.
Consequently, conducting a harm analysis would not make sense here, where the
question that was erroneously excluded sought to ensure that each person who
4
In a footnote to the Gonzales opinion, the Court of Criminal Appeals observed,
“Structural” error as explained in Arizona v. Fulminante, is a “defect affecting the
framework within which the trial proceeds, rather than simply an error in the trial
process itself.” Arizona v. Fulminante, [499 U.S. 279, 309] (1991). The United States
Supreme Court has found structural errors only in a very limited class of cases. . . .
Sullivan v. Louisiana, [508 U.S. 275] (1993) (erroneous reasonable-doubt instruction to
jury).
Gonzales v. State, 994 S.W.2d 170, at n. 4.
10
ultimately served as a juror was capable of applying the constitutionally-mandated
standard of proof beyond a reasonable doubt, a rule involving a fundamental right
that applies to the trial of every criminal case.
In addressing the harm of the error in Sullivan, the Supreme Court stated that
“[a]lthough most constitutional errors have been held amenable to harmless error
analysis, [internal citation omitted] some will always invalidate the conviction.”
Sullivan, 508 U.S. at 279. In concluding that the error committed by the trial court in
that case fell within the latter category, the Supreme Court reasoned that there had
been no jury verdict within the meaning of the Sixth Amendment because the verdict
that was actually rendered was based upon an unconstitutional definition of
“reasonable doubt.” Sullivan, 508 U.S. at 280. Essentially, the Supreme Court held
that, although the jury had rendered a de facto verdict of “guilty,” it had not rendered a
de jure verdict of “guilty” because its verdict was based upon a constitutionally-
deficient definition of “reasonable doubt” that permitted it to convict the appellant
upon a degree of proof that fell below what was required by the Due Process Clause.
Having concluded that there was “no jury verdict of guilty beyond a reasonable
doubt,” the Supreme Court concluded, “[t]here is no object, so to speak, upon which
harmless error scrutiny can operate.” Sullivan, 508 U.S. at 280 (italics in original).
This case presents essentially the same issue as the one presented in Sullivan.
Both cases involve constitutional errors relating to the standard of proof that the
11
State is required to meet before a jury may convict anyone accused of a criminal
offense. The errors simply occurred at opposite stages of the proceedings. In Sullivan
the error occurred at the conclusion of the trial, when the jury retired to deliberate
with a constitutionally-deficient instruction of “reasonable doubt.” Sullivan, 508 U.S.
at 277. In this case, the error occurred at the beginning of the trial, when the trial
court prohibited defense counsel from properly examining the prospective jurors to
ensure that each of them was qualified to follow the constitutionally-mandated
standard of proof that would ultimately govern their deliberations. III R.R. at 142-45.
In Sullivan, the Supreme Court concluded that the error committed by the trial
court constituted a structural error that was not subject to a harm analysis for two
reasons. First, the court noted that Chapman v. California, 386 U.S. 18 (1967), the
opinion wherein the court had rejected the proposition that all constitutional errors in
the course of a criminal trial require reversal, instructed appellate courts to consider
“not what effect the constitutional error might generally be expected to have upon a
reasonable jury, but rather what effect it had upon the guilty verdict in the case at
hand.” Sullivan, 508 U.S. at 279. Citing Rose v. Clark, 478 U.S. 570, 578 (1986), the
court stated:
[T]he essential connection to a “beyond a reasonable doubt” factual
finding cannot be made where the instructional error consists of a
misdescription of the burden of proof, which vitiates all the jury’s
findings. A reviewing court can only engage in pure speculation — its
view of what a reasonable jury would have done. And when it does that,
“the wrong entity judge[s] the defendant guilty.”
12
Sullivan, 508 U.S. at 281 (italics in original). Because the error in that case precluded a
jury verdict finding the defendant guilty beyond a reasonable doubt, the court
concluded that there was no jury verdict to consider in conducting a harm analysis.
Sullivan, 508 U.S. at 280.
The Supreme Court concluded that “[a]nother mode of analysis [led] to the
same conclusion that harmless error analysis [did] not apply” in that case. Sullivan,
508 U.S. at 281. The court noted that in Arizona v. Fulminante, 499 U.S. 279 (1991), the
court had distinguished between “structural defects in the constitution of the trial
mechanism, which defy analysis by ‘harmless error’ standards,” and “trial errors which
occur during the presentation of the case to the jury, and which may therefore be
quantitatively assessed in the context of other evidence presented.” Id. The court
went on to observe as follows:
Denial of the right to a jury verdict of guilt beyond a reasonable doubt
is certainly an error of the former sort, the jury guarantee being a “basic
protection[n]” whose precise effects are unmeasurable, but without
which a criminal trial cannot reliably serve its function, Rose, supra, 478
U.S. at 577. The right to trial by jury reflects, we have said, “a profound
judgment about the way in which law should be enforced and justice
administered.” Duncan v. Louisiana, 391 U.S. at 155. The deprivation of that
right, with consequences that are necessarily unquantifiable and indeterminate,
unquestionably qualifies as “structural error.”
Sullivan, 508 U.S. at 281–282 (emphasis added).
Like the errors in Fulminante and Sullivan, the error in this case constitutes a
“defect affecting the framework within which the trial proceed[ed], rather than simply
13
an error in the trial process itself.” Fulminante, 499 U.S. at 310; Sullivan, 508 U.S. at 282
(Rehnquist, C.J., concurring). It simply occurred at a different stage of the
proceedings, i.e., during the constitution, rather than the instruction, of the jury. Whereas
the trial in Sullivan presumably began with twelve jurors who had been properly
qualified on their ability to acquit the defendant in the event that they had a
reasonable doubt as to his guilt but ended with those same jurors being governed by a
constitutionally-deficient definition of “reasonable doubt,” the trial in this case ended
with the jurors being properly instructed about their duty to acquit Petitioner in the
event that they had a reasonable doubt as to his guilt, but it began with twelve jurors
who had not been properly qualified—at least to Petitioner’s satisfaction—on their
ability to acquit Petitioner under such circumstances. Both errors relate to the same
issue: the constitutionally-mandated standard of proof that the State must always
meet before a jury may convict someone accused of a criminal offense. Both errors
defy analysis by ‘harmless error’ standards” because their consequences “are
necessarily unquantifiable and indeterminate.” Moreover, the risks inherent in both
errors are identical: one or more of jurors might acquiesce in a verdict of “guilty”
after applying a constitutionally-impermissible standard of proof.
Considering the depth and breadth of public familiarity with the long-
established principle of American jurisprudence forbidding the conviction of anyone
accused of a criminal offense except upon proof beyond a reasonable doubt, it is
14
conceivable that all twelve jurors who convicted the appellant in Sullivan disregarded
the constitutionally-deficient definition of “reasonable doubt” given to them by the
trial court and applied the correct standard of proof instead. However, because it
found the consequences of such an error to be “necessarily unquantifiable and
indeterminate,” the Supreme Court concluded that it had no way of assuring itself
that none of the jurors reached his or her verdict based upon the constitutionally-
deficient definition. Sullivan, 508 U.S. at 281–282. Consequently, the court held that
such an error is structural, requiring automatic reversal. Id.
The same can be said of the error committed in the case below. While it is
conceivable that all twelve jurors who convicted Petitioner were willing and able to
acquit him in the event that they had a reasonable doubt as to his guilt, the court of
appeals had no way of assuring itself of that fact because the trial court prohibited
defense counsel from asking them, before they were empaneled, if they could follow
the law and acquit Petitioner in the event that they were convinced that he probably
committed the offense charged but they were not convinced of his guilt beyond a
reasonable doubt. Like the error considered in Sullivan, the consequences of the trial
court’s error in this case are “necessarily unquantifiable and indeterminate.” The
possibility that even one person who served on the jury that convicted Petitioner was
unwilling, unable, or indisposed to follow the law and acquit him in the event that
such person was convinced that he probably committed the offense charged but was
15
not convinced of his guilt beyond a reasonable doubt invalidates the verdict that was
eventually rendered. See Morgan v. Illinois, 504 U.S. 719, 729 (1992).
If even one such person served on the jury that convicted Petitioner, it would
taint Petitioner’s conviction just as the erroneous definition of “reasonable doubt”
given to the jury in Sullivan v. Louisiana, 508 U.S. 275 (1993), tainted the conviction
rendered therein. It would mean that the verdict that was rendered did not constitute
a unanimous verdict of “guilty beyond a reasonable doubt” because at least one
member of the jury acquiesced in the verdict without being governed by the only
constitutionally-acceptable standard of proof for a criminal case: proof beyond a
reasonable doubt. See Sullivan v. Louisiana, 508 U.S. at 280; Morgan v. Illinois, 504 U.S. at
729. For the foregoing reasons, this Court should grant this petition for discretionary
review, reverse the judgment of the court of appeals, and remand the case for a new
trial.
PRAYER
WHEREFORE, PREMISES CONSIDERED, the Petitioner respectfully prays
that this Court grant his petition for discretionary review and, upon reviewing the
decision of the court of appeals, reverse the judgment of the court of appeals
affirming the judgment rendered by the trial court in the above-referenced criminal
action, and remand the case for a new trial.
16
Respectfully submitted,
______________________________
RICHARD D. REED
316 W. 12th Street, Suite 313
Austin, Texas 78701-1820
512-322-9443
rick.reed@maverickcounsel.com
State Bar No. 16686100
LEAD COUNSEL FOR PETITIONER
CERTIFICATE OF SERVICE
I hereby certify that on this, the fourteenth, day of May, A.D. 2015, I personally
served a copy of the above-and-foregoing Petition for Discretionary Review upon
Rosemary Lehmberg, District Attorney of Travis County, Texas, whose address is 509
West 11th Street, Suite 1.100, Austin, Texas 78701-2103, by electronically delivering a
copy of the said petition to the following email address:
appellatetcda@traviscountytx.gov.
I further certify that on this, the fourteenth, day of May, A.D. 2015, I
personally served a copy of the above-and-foregoing Petition for Discretionary
Review upon Lisa C. McMinn, State Prosecuting Attorney, whose address is 209 West
14th Street, Austin, Texas 78701-1614, by electronically delivering a copy of the said
petition to the following email address: lisa.mcminn@spa.texas.gov.
______________________________
Richard D. Reed
17
CERTIFICATE OF COMPLIANCE
Pursuant to Rule 9.4(i)(3), Texas Rules of Appellate Procedure, I hereby certify
that the above-and-foregoing Petition for Discretionary Review contains a total of
2,305 words exclusive of the caption, identity of judge, parties, and counsel, statement
regarding oral argument, table of contents, index of authorities, statement of the case,
statement of issues presented, statement of jurisdiction, statement of procedural
history, signature, proof of service, certification, certificate of compliance, and
appendix.
______________________________
Richard D. Reed
18
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-12-00620-CR
Henry Gonzales, Jr., Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 299TH JUDICIAL DISTRICT
NO. D-1-DC-12-904023, HONORABLE KAREN R. SAGE, JUDGE PRESIDING
MEMORANDUM OPINION
Appellant was convicted of murder and sentenced to life imprisonment. He appeals
his conviction in seven points. We will affirm the trial court’s judgment.
FACTUAL BACKGROUND
Appellant was charged with murder after Mary Rivas was found deceased on the
porch of her boyfriend’s home. At trial, the medical examiner testified that Rivas had been killed
in an assault by intentionally inflicted stab wounds. Rivas’s boyfriend, Ruben Gonzales (appellant’s
brother), testified that he had been staying at the hospital during the time frame in question and that
Rivas had called him at the hospital from his home phone the night before her body was found.
Ruben testified that during the phone call, he could hear appellant’s voice in the background,
demanding to talk to him. He further testified that at one point during the phone call he heard Rivas
say “mother fu—,” but that before she finished the curse word, the call was abruptly disconnected.
Ruben testified that this was the last contact he had with his girlfriend before his daughter found
Rivas’s deceased bloody body on the porch the following day. No other witnesses testified to the
events of that evening.
Appellant did not testify at trial, but in a video recording that was shown to the jury,
he admitted to police detectives during a custodial interrogation that he had been drinking and
smoking crack at Ruben’s house with Rivas on the night in question and that, although he did not
remember stabbing her, he did remember standing over her bloody body at some point after he and
the deceased had an argument. Evidence showed that appellant sustained two cuts on the fingers of
his left hand during the evening in question and that drops of his blood were found throughout the
living room and kitchen of Ruben’s house as well as progressing along several blocks of sidewalk
and ceasing at a water faucet outside a gas station. A bloody six-inch knife was found behind a
dumpster near the gas station, and DNA testing confirmed that the blood on the knife belonged to
both the deceased and appellant.
DISCUSSION
Appellant’s first issue asserts that the trial court erred in prohibiting defense counsel
from asking the following question during voir dire: “You’re convinced that it is more likely than
not that [the defendant] did commit the murder, but you are not convinced beyond a reasonable
doubt. If you found yourself in that situation, could you follow the law and acquit the person on
trial?” The State objected that this was an improper commitment question, to which the trial court
responded that it would allow proper questions such as, “Will you hold the State to its standard of
beyond a reasonable doubt?” and “Do you have a problem with that standard in that circumstance?”
2
Appellant explained that the question he sought to ask was “Whether [the venire] can follow the law
and acquit if they are not convinced beyond a reasonable doubt of this man’s guilt?” Appellant then
inquired whether the trial court was instructing him that he was not permitted to ask that question,
to which the trial court replied, “Yes.” Defense counsel then asked a rephrased question about
reasonable doubt, to which the State did not object.
Both the State and appellant agree that appellant sought to ask a commitment
question, and we concur. See Standefer v. State, 59 S.W.3d 177, 180 (Tex. Crim. App. 2001)
(commitment question binds prospective juror to verdict or asks prospective juror to refrain from
resolving issue, based on one or more facts contained in question). The point of contention is
whether the commitment question was proper. Id. at 181-82. We conclude that the question was
proper because it sought to determine whether the venire members could follow the law by
committing to an acquittal if they were not convinced beyond a reasonable doubt of appellant’s
guilt and because it did not include any additional facts beyond those required for this legal
requirement. See id.; Caton v. State, 66 Tex. Crim. 473, 475 (1912) (holding as proper questions
substantively same as question here); see also Fuller v. State, 363 S.W.3d 583, 588 n.28 (Tex. Crim.
App. 2012) (prospective juror would be challengeable for cause if she equated proof beyond
reasonable doubt with preponderance of evidence or clear and convincing evidence). Accordingly,
the trial court abused its discretion in prohibiting defense counsel from asking the question. See
Barajas v. State, 93 S.W.3d 36, 38 (Tex. Crim. App. 2002); Howard v. State, 941 S.W.2d 102, 108
(Tex. Crim. App. 1996). Having determined that the trial court erred, we must conduct a harm
analysis. See Tex. R. App. P. 44.2.
3
While defense counsel was prohibited from phrasing his preferred query in one
particular way, he was not entirely precluded from discussing and explaining the beyond-a-
reasonable-doubt standard. Therefore, we will review the harm under the non-constitutional-harm
analysis, as the limitation that the trial court placed on defense counsel’s preferred voir dire was not
“so substantial” as to rise to the level of constitutional error. Easley v. State, 424 S.W.3d 535, 541-
42 (Tex. Crim. App. 2014) (where defense counsel was not foreclosed from explaining concept of
“beyond a reasonable doubt,” error was non-constitutional); Woods v. State, 152 S.W.3d 105, 109
(Tex. Crim. App. 2004) (denial of proper question in voir dire assessed as non-constitutional error).
Accordingly, we will consider whether appellant’s substantial rights were affected thereby and
disregard the error if they were not. Tex. R. App. P. 44.2(b); Johnson v. State, 43 S.W.3d 1, 4 (Tex.
Crim. App. 2001) (substantial right is affected when error has substantial and injurious effect or
influence in determining jury’s verdict).
Besides the fact that appellant was allowed to elicit the same general information as
that likely to be gleaned from his preferred question, the jury was instructed in the charge that “[t]he
prosecution has the burden of proving the defendant guilty and it must do so by proving each and
every element of the offense charged beyond a reasonable doubt and if it fails to do so, you must
acquit the defendant” and that “[i]n the event you have a reasonable doubt as to the defendant’s guilt
after considering all the evidence before you, and these instructions, you will acquit the defendant.”
This charge properly instructed the jury on the burden of proof beyond a reasonable doubt and
the circumstances under which they must acquit appellant. Furthermore, this instruction contained
substantively the same information as that included in appellant’s preferred voir-dire question.
4
Absent evidence to the contrary, which we do not have, we presume the jury followed the trial
court’s instructions. Hutch v. State, 922 S.W.2d 166, 172 (Tex. Crim. App. 1996). On this record
and in light of this presumption, we conclude that the voir-dire error did not have a substantial and
injurious influence on the jury’s verdict because the jury was charged with the very same duty
appellant earlier sought to address in voir dire.
Additionally, the evidence of guilt was overwhelming, considering the physical and
DNA evidence; the testimony of Ruben, the medical examiner, and the detectives; and appellant’s
own statements during his custodial interview. In light of the evidence, the voir-dire error would
have had little, if any, influence on the jury’s deliberations.
Finally, we note that in closing argument, defense counsel revisited the State’s burden
of proof and his preferred presentation of that topic by submitting to the jury that the State had
“proven that [the defendant] probably did kill [the deceased], but [it] didn’t prove beyond a
reasonable doubt that he did.” (Emphasis added.) Furthermore, the jury charge specifically ordered
the jury that its verdict must be unanimous and must reflect the individual verdict of each juror rather
than a “mere acquiescence in the conclusion of the other jurors.” When viewed in context of the
overwhelming evidence of appellant’s guilt, the trial court’s jury instructions, and appellant’s ability
to generally pursue the issue of reasonable doubt during voir dire, we conclude that the trial court’s
error in prohibiting defense counsel from asking his one preferred voir-dire question did not have
a substantial and injurious influence in determining the jury’s verdict. Accordingly, we overrule
appellant’s first issue.
5
We next address appellant’s complaint that the trial court erred in denying his
request for a self-defense instruction in the jury charge.1 See Ferrel v. State, 55 S.W.3d 586, 591
(Tex. Crim. App. 2001) (defendant is entitled to instruction on self-defense if issue is raised by
evidence). The State responds, as it did at trial, that there was no evidence on the essential element
of the offense requiring that the victim be the first aggressor.2 See Tex. Penal Code §§ 9.31, .32.
Based on our review of the record, we agree.
The only evidence to which appellant points as allegedly raising the defense is
(1) two cuts he sustained on the fingers of his left hand during the time of the offense and (2) an
argument he allegedly had with the victim.3 Although appellant argues on appeal that the cuts
were defensive wounds, sustained in response to the victim’s first aggressive act towards him with
the knife that caused her death, there is nothing in the record to support such an inference. As the
trial court correctly concluded, the cuts on appellant’s hand, without more, were insufficient as a
matter of law to raise the element of self-defense requiring the victim to have been the first
aggressor. See Shaw v. State, 243 S.W.3d 647, 657-58 (Tex. Crim. App. 2007) (“raised by the
1
This is appellant’s sixth issue, but for the sake of brevity, we address his points out of
order. See Tex. R. App. P. 47.1, 47.4.
2
The State also argues that appellant did not admit the underlying acts, another requirement
for a self-defense instruction. See VanBrackle v. State, 179 S.W.3d 708, 715 (Tex. App.—Austin
2005, no pet.). We need not reach this argument because of our determination of the self-defense
issue on the basis of first aggression.
3
As appellant did not testify at trial, evidence of the argument to which he refers arose only
in the context of his statements to police officers during the videotaped custodial interrogation after
his arrest. It is not a requirement that a defendant testify to raise the issue of self-defense, but there
must nonetheless be evidence that he believed himself to be in danger and of an attack or apparent
attack by the victim. Smith v. State, 676 S.W.2d 584, 585 (Tex. Crim. App. 1984).
6
evidence” means there is some evidence on each element of defense that, if believed by jury,
would support rational inference that element is true). The argument appellant allegedly had with
the victim is also insufficient, without more, to raise the defense, as an argument does not equate
with an act or attempted act of violence.
Appellant’s contention that he acted in self-defense against the victim’s initial
aggression relies on mere speculation rather than reasonable inferences that the jury could have
made from the admitted evidence. See Hooper v. State, 214 S.W.3d 9, 15-16 (Tex. Crim. App.
2007) (“Speculation . . . about the possible meaning of facts and evidence . . . is not sufficiently
based on facts or evidence to support a finding beyond a reasonable doubt.”). The trial court did not
err in ruling that the evidence did not raise the issue of self-defense and in not giving an instruction
accordingly. See Shaw, 243 S.W.3d at 657-58. We overrule appellant’s sixth issue.
Appellant’s fourth issue asserts that the trial court erred in excluding evidence
of the victim’s criminal history allegedly demonstrating her character for violence, specifically
evidence that she had previously threatened an Austin peace officer with a knife when he arrested
her for prostitution and for which she was convicted of assault eleven years prior to her murder.
However, while evidence of a pertinent character trait of the victim of a crime offered by the
defendant is admissible, such evidence must generally be in the form of opinion or reputation
testimony. See Tex. R. Evid. 404(a)(2); Ex parte Miller, 330 S.W.3d 610, 619 (Tex. Crim. App.
2009); Torres v. State, 71 S.W.3d 758, 760 (Tex. Crim. App. 2002). Evidence of other crimes,
wrongs, or acts is not admissible to prove the character of the victim to show action in conformity
therewith. Tex. R. Evid. 404(b).
7
Specific acts of violence may be admissible to show that the victim was the first
aggressor but only to the extent that the acts are relevant apart from showing action in conformity
with such character, for instance to prove the victim’s specific intent, motive, or state of mind with
respect to the offense for which the defendant is being tried. Torres, 71 S.W.3d at 760. However,
in the context of a defendant’s intent to prove that the deceased was the first aggressor, in order to
introduce evidence of a specific, violent act, there must first be some evidence of a violent or
aggressive act by the deceased that tends to raise the issue of self-defense and that the specific act
may explain. Id. at 761; see also Torres v. State, 117 S.W.3d 891, 895 (Tex. Crim. App. 2003)
(before defendant may introduce evidence of prior specific act that tends to explain decedent’s later
conduct, there must be some evidence of aggression by deceased during events that gave rise to
criminal charges in case).
Thus, for the victim’s criminal history to have been admissible in this case, there must
have first been some evidence of her aggression that raised the issue of self-defense. As already
discussed, there was not. Therefore, evidence of the victim’s criminal history was not admissible,
and the trial court did not abuse its discretion in excluding it. See Tienda v. State, 358 S.W.3d 633,
638 (Tex. Crim. App. 2012) (trial court’s ruling on evidentiary matter is reviewed for abuse of
discretion, which does not occur if ruling is within zone of reasonable disagreement). We overrule
appellant’s fourth issue.
In his fifth issue, appellant argues that the trial court abused its discretion in
denying his motion for continuance so that he could procure the attendance of an allegedly material
witness—the peace officer whom the deceased had threatened with a knife eleven years prior. See
8
Renteria v. State, 206 S.W.3d 689, 699 (Tex. Crim. App. 2006) (granting or denying continuance
is within sound discretion of trial court); see also Tex. Code Crim. Proc. art. 29.13 (trial court
may grant continuance “when it is made to appear to the satisfaction of the court that by some
unexpected occurrence since the trial began, which no reasonable diligence could have anticipated,
the applicant is so taken by surprise that a fair trial cannot be had”).
After reviewing the entire record, we conclude that appellant has not demonstrated
that he was actually prejudiced by the trial court’s denial of his motion for continuance. See Gallo v.
State, 239 S.W.3d 757, 764 (Tex. Crim. App. 2007). As already discussed, the peace officer’s
testimony about the assault committed by the victim would not have been admissible. Additionally,
in his motion for new trial, appellant did not raise the issue of the trial court’s denial of his motion
for continuance and offered no affidavit from the peace officer indicating what his testimony would
have been. See Tex. R. App. P. 21.2 (motion for new trial is prerequisite for issue on appeal when
necessary to adduce facts not in record); Flores v. State, 18 S.W.3d 796, 798 (Tex. App.—Austin
2000, no pet.) (motion for new trial alleging facts outside record without supporting affidavits
is fatally defective). A motion for new trial is ordinarily the means by which to make a showing
of prejudice, Gonzales v. State, 304 S.W.3d 838, 843 (Tex. Crim. App. 2010), and even if the
peace officer’s testimony would have been admissible, appellant made no showing as to what the
additional evidence would have demonstrated from which we could evaluate whether he was
prejudiced. We overrule appellant’s fifth issue.
Appellant’s second issue complains that his rights to due process and to counsel
were violated by virtue of the State’s alleged withholding of exculpatory evidence prior to trial. See
9
Brady v. Maryland, 373 U.S. 83, 87 (1963). Specifically, appellant complains that the State withheld
evidence of the deceased’s criminal record, not disclosing it until the penultimate day of trial, despite
his prior requests for exculpatory evidence and despite the court’s granting of his motion for
disclosure of exculpatory evidence. However, to find reversible error under Brady, the appellant
must show that the evidence central to the Brady claim would have been admissible, besides making
other required showings; the State does not have a duty to disclose material evidence favorable to
the defense if it would be inadmissible. See Pena v. State, 353 S.W.3d 797, 809, 814 (Tex. Crim.
App. 2011). Because, as discussed above, the evidence of the victim’s prior criminal acts was not
admissible, there was no reversible Brady error.4 Accordingly, we overrule appellant’s second issue.
In his third issue, appellant argues that the trial court erred in denying his request
for a limiting instruction regarding out-of-court statements made by two homicide detectives during
their custodial interrogation of him. At trial, appellant objected on the basis of hearsay to all of the
declaratory statements made by the detectives and published to the jury in the form of the video
recording of his interrogation.5 Appellant argues that the detectives’ statements were inadmissible
hearsay, and to the extent that they were admissible for a purpose other than the truth of the matters
asserted, the trial court was required to instruct the jury about the limited scope of the evidence due
4
Because the issue of the inadmissibility of the victim’s criminal record is dispositive, we
do not reach appellant’s additional allegation that the State in fact withheld the evidence.
5
Representative of the objected-to statements was the following, made by Detective White:
I mean, I mean when y’all were fighting, when, when you and [the
deceased] were having the argument, and get—and when, when
things were starting to get heated. You said that you were hitting it
[i.e., smoking the crack pipe] and you went—you lost control and
then the next thing you knew you were standing over her.
10
to his request for such instruction. See Tex. R. Evid. 105(a) (when evidence that is admissible as
to one party or for one purpose but not admissible as to another party or for another purpose is
admitted, court shall restrict evidence to proper scope and instruct jury accordingly), 802 (hearsay
is not admissible except as provided by statute or rules).
The record reflects that twice the State represented to the trial court that it was
offering the challenged evidence for the truth of the matters asserted. We conclude that the detectives’
videotaped statements were inadmissible as hearsay unless an exception applied. See id. R. 801
(hearsay is statement, other than one made by declarant while testifying at trial, offered to prove truth
of matter asserted), 802 (hearsay is not admissible except as provided by statute or rules). Neither
at trial nor on appeal has the State identified any applicable hearsay exception. Accordingly, we hold
that the trial court abused its discretion in admitting the detectives’ statements for all purposes,
including for the truth of the matters asserted to by the detectives, instead of admitting them with an
appropriate limiting instruction as appellant requested. See id. R. 105(a).
Having determined that the trial court erred in failing to give a limiting instruction,
we must consider whether appellant’s substantial rights were affected. Jones v. State, 119 S.W.3d 412,
424-25 (Tex. App.—Fort Worth 2003, no pet.) (failure to give limiting instruction is non-constitutional
error); see also Tex. R. App. P. 44.2(b) (review of non-constitutional errors); Jones v. State,
944 S.W.2d 642, 653 (Tex. Crim. App. 1996) (court’s failure to give rule 105(a) limiting instruction
is reviewed for harmless error).
Having examined the record as a whole, we have fair assurance that this error did
not influence the jury or had but a slight effect. See Routier v. State, 112 S.W.3d 554, 577 (Tex.
11
Crim. App. 2003); see also Motilla v. State, 78 S.W.3d 352, 355-56 (Tex. Crim. App. 2002) (in
determining whether substantial rights were affected, appellate court should consider testimony and
physical evidence, nature of evidence, character of alleged error, and overwhelming evidence of
guilt). Most of the detectives’ statements were paraphrases of appellant’s own properly admitted
statements that he made during the custodial interview and therefore were cumulative of that
evidence. Furthermore, the statements would likely have been understood by a reasonable juror to
have been relevant for a purpose other than for their truth (as the detectives did not witness the
murder), such as to glean information from appellant as an investigative technique. The remaining
statements by the detectives were paraphrases of statements allegedly made by Ruben during
Detective White’s interview with him at the hospital and were cumulative of facts contained in
Ruben’s trial testimony and in phone records admitted at trial. Also, both detectives and Ruben
were available for cross-examination at trial.
Moreover, as already discussed, there was overwhelming evidence of appellant’s guilt
in the form of DNA and physical evidence, including the bloody knife containing appellant’s and
the victim’s DNA and evidence that appellant was with the deceased at the time of the offense. After
examining the entire record, we conclude that appellant’s substantial rights were not affected by the
trial court’s error in failing to give the jury a limiting instruction about the detectives’ videotaped
statements, and we accordingly overrule his third issue.
Finally, appellant’s seventh issue asserts that the trial court made multiple errors
throughout the trial proceedings that, viewed together, cumulatively resulted in depriving him
of a fair trial. Although a number of errors may be found harmful in their cumulative effect,
12
Chamberlain v. State, 998 S.W.2d 230, 238 (Tex. Crim. App. 1999), the “cumulative error doctrine
provides relief only when constitutional errors so ‘fatally infect the trial’ that they violated the trial’s
fundamental fairness,’” United States v. Bell, 367 F.3d 452, 471 (5th Cir. 2004).
Besides the six issues already addressed, appellant cites an additional nineteen
alleged errors within this seventh issue. We have previously cautioned parties bringing cumulative-
harm claims to brief each alleged error separately before discussing their cumulative effect,
with appropriate citations to the record and relevant legal authority; otherwise, the party runs the
risk of having the claim dismissed as multifarious. Walls v. State, No. 03-12-00055-CR, 2014 WL
1208017, at *5 n.2 (Tex. App.—Austin Mar. 20, 2014, no pet.) (mem. op., not designated for
publication); see also Davis v. State, 329 S.W.3d 798, 803 (Tex. Crim. App. 2010) (concluding that
single point of error asserting constitutional and statutory claims was multifarious). However, we
regard appellant’s true issue here to be that the trial court exhibited an improper bias or prejudice
against him, depriving him of a fair trial, rather than that the cumulative effect of these multiple
alleged “errors” sufficiently raised the harm level to one warranting a reversal. See Bracy v. Gramley,
520 U.S. 899, 904-05 (1997). Therefore, we consider whether the trial court’s conduct, as reflected
in the record as a whole, rises to a level displaying “deep-seated favoritism or antagonism.” See
Liteky v. United States, 510 U.S. 540, 554 (1994) (judicial remarks during course of trial that are
critical, disapproving, or even hostile to counsel, parties, or their cases, ordinarily do not support bias
or partiality challenge). Having viewed the record in its entirety, we conclude that the trial court’s
conduct—in the form of appellant’s cited twenty-plus “errors” and the trial court’s verbal remarks
made throughout trial—do not rise to such a level. Accordingly, we overrule appellant’s seventh issue.
13
CONCLUSION
For the foregoing reasons, we overrule each of appellant’s issues and affirm the
trial court’s judgment.
_____________________________________________
Scott K. Field, Justice
Before Justices Puryear, Goodwin, and Field
Affirmed
Filed: December 4, 2014
Do Not Publish
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