Tammi Dawn Deere v. the State of Texas ( 2021 )

Opinion filed July 22, 2021
In The
Eleventh Court of Appeals
__________
No. 11-19-00227-CR
__________
TAMMI DAWN DEERE, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 132nd District Court
Scurry County, Texas
Trial Court Cause No. CR 10650
OPINION
This is an appeal from Appellant’s jury conviction of possession of
methamphetamine. See TEX. HEALTH & SAFETY CODE ANN. § 481.112(b) (West
2017). The trial court assessed Appellant’s punishment at two years’ incarceration
in the State Jail Division of the Texas Department of Criminal Justice and a fine of
$1,500.
In six issues on appeal, Appellant contends that (1) the evidence was
insufficient to find Appellant guilty of possession of methamphetamine, (2) the trial
court erred in denying Appellant’s for-cause jury challenges, (3) the trial court erred
in requiring Appellant to make objections—in front of the venire panel—to jurors
that her counsel would have stricken with peremptory strikes had he not had to
expend them on persons for whom challenges for cause were denied, (4) the trial
court erred in omitting certain instructions from the court’s charge, (5) the trial court
erred in overruling her optional-completeness objection and excluding the audio
portion of the video of the traffic stop that led to discovery of the controlled
substance, and (6) Appellant was denied due process after a prospective juror made
an inflammatory comment during voir dire about past dealings with Appellant. We
affirm.
Background Facts
Appellant was pulled over for speeding; the radar in the police officers’ patrol
unit showed that Appellant was driving thirty-six miles per hour in a thirty-mile-per-
hour zone. Two officers approached her car, and one of them asked her for her
driver’s license and insurance. Appellant reached into her purse, pulled out her
license, and gave it to the officer. There was no one else in the car. The officers
went back to their vehicle, and after a period of time, one of the officers returned to
Appellant’s car and asked to search her car. Appellant agreed, placed her purse in
the passenger seat, and exited the car. The officer searched Appellant’s car and purse
and found what appeared to be methamphetamine in a small plastic bag inside her
purse. The substance was later tested and confirmed to be methamphetamine.
Appellant was arrested and charged with possession of a controlled substance. This
appeal followed.
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Analysis
I. Sufficiency of the Evidence
In her first issue on appeal, Appellant contends that the evidence is insufficient
to prove beyond a reasonable doubt that Appellant was guilty of possessing
methamphetamine. We review a challenge to the sufficiency of the evidence under
the standard of review set forth in Jackson v. Virginia, 443 U.S. 307 (1979).
Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010); Polk v. State, 337
S.W.3d 286, 288–89 (Tex. App.—Eastland 2010, pet. ref’d). Under the Jackson
standard, we review all of the evidence in the light most favorable to the verdict and
determine whether any rational trier of fact could have found the essential elements
of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319; Isassi v. State,
330 S.W.3d 633, 638 (Tex. Crim. App. 2010).
When conducting a sufficiency review, we consider all of the evidence
admitted at trial, including pieces of evidence that may have been improperly
admitted. Winfrey v. State, 393 S.W.3d 763, 767 (Tex. Crim. App. 2013); Clayton v.
State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). We defer to the factfinder’s
role as the sole judge of the witnesses’ credibility and the weight their testimony is
to be afforded. Brooks, 323 S.W.3d at 899. This standard accounts for the
factfinder’s duty to resolve conflicts in the testimony, to weigh the evidence, and to
draw reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at
319; Clayton, 235 S.W.3d at 778.
It is not necessary that the evidence directly prove the defendant’s guilt;
circumstantial evidence is as probative as direct evidence in establishing a
defendant’s guilt, and circumstantial evidence can alone be sufficient to establish
guilt. Carrizales v. State, 414 S.W.3d 737, 742 (Tex. Crim. App. 2013) (citing
Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007)). Each fact need not
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point directly and independently to guilt if the cumulative force of all incriminating
circumstances is sufficient to support the conviction. Hooper, 214 S.W.3d at 13.
To establish unlawful possession of a controlled substance, the State bears the
burden to prove beyond a reasonable doubt that “(1) the accused exercised control,
management, or care over the controlled substance; and (2) the accused knew the
matter possessed was contraband.” Poindexter v. State, 153 S.W.3d 402, 405 (Tex.
Crim. App. 2005), overruled in part on other grounds by Robinson v. State, 466
S.W.3d 166, 173 & n.32 (Tex. Crim. App. 2015).
Appellant contends there was insufficient evidence to affirmatively link
Appellant to the methamphetamine. Under the “affirmative links” rule, the
defendant’s link to the substance must have been more than a fortuitous proximity.
Evans v. State, 202 S.W.3d 158, 161–62 (Tex. Crim. App. 2006). Appellant’s
reliance on the affirmative links rule, however, is misplaced. As this court stated in
Banks v. State, the affirmative links rule “applies to instances when the accused does
not have exclusive possession of the location where the contraband is discovered.
Here, the State was not required to present evidence affirmatively linking Appellant
to the cocaine because it was found on [her] person—a place that [s]he exclusively
controlled.” Banks v. State, No. 11-17-00281-CR, 2019 WL 3727550, at *2 (Tex.
App.—Eastland Aug. 8, 2019, no pet.) (mem. op., not designated for publication)
(citation omitted) (citing Toumey v. State, No. 01-16-00144-CR, 2017 WL 631841,
at *4 (Tex. App.—Houston [1st Dist.] Feb. 16, 2017, pet. ref’d) (mem. op., not
designated for publication)). Specifically, the methamphetamine was found in
Appellant’s own purse, which was in Appellant’s exclusive control. Furthermore,
Appellant was in her own car with no one else in the vehicle. Under these
circumstances, the affirmative links rule does not apply. See id.; cf Cameron v. State,
703 S.W.2d 254, 255 (Tex. App.—Corpus Christi–Edinburg 1985, pet. ref’d)
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(finding that a third party had possession and control of drugs that were found in the
third party’s purse).
Viewed in the light most favorable to the verdict, the above evidence is
sufficient to support a finding beyond a reasonable doubt that Appellant knowingly
possessed the methamphetamine that was in her exclusive possession. When the
arresting officer asked Appellant for her license and registration, he saw Appellant
reach into her own purse—which contained the methamphetamine—to pull out her
license. From this, a reasonable trier of fact could infer that Appellant was aware
that she was in possession of a controlled substance when she pulled out her license.
Although Appellant’s sister testified that the methamphetamine was hers and not
Appellant’s, she found out that Appellant had been arrested for methamphetamine
the day after Appellant’s arrest, but only came forward with this confession a few
days before trial. The jury was in the best position to determine the credibility and
demeanor of the witnesses and resolve evidentiary conflicts, and under these facts,
the jury could have reasonably disbelieved Appellant’s sister’s testimony. See
Lancon v. State, 253 S.W.3d 699, 705 (Tex. Crim. App. 2008) (citing Marshall v.
State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006)). Even assuming the sister
actually placed the methamphetamine in Appellant’s purse, under the light most
favorable to the verdict, a rational jury could have found that Appellant subsequently
realized and knowingly possessed the methamphetamine after it was placed in her
purse but before the search. We overrule Appellant’s first issue.
II. Challenges for Cause
In her second issue on appeal, Appellant contends that the trial court erred in
failing to excuse certain venirepersons for cause. Of the nineteen potential jurors
that Appellant challenged for cause, four were actually selected as jurors in
Appellant’s case. Appellant specifically asserts that the trial court erred in denying
Appellant’s challenges for cause against three of those jurors.
5
When reviewing a trial court’s decision to grant or deny a challenge for cause,
we look at the entire record to determine if there is sufficient evidence to support the
trial court’s ruling. See Sells v. State, 121 S.W.3d 748, 759 (Tex. Crim. App. 2003).
A defendant has a constitutional right “to be tried by impartial, indifferent jurors
whose verdict must be based upon the evidence developed at trial.” Howard v. State,
941 S.W.2d 102, 117 (Tex. Crim. App. 1996), overruled on other grounds by
Easley v. State, 424 S.W.3d 535, 538 & n.23 (Tex. Crim. App. 2014). A potential
juror may be challenged for cause if he or she has a bias or prejudice in favor of or
against the defendant or against the law applicable to the case. See TEX. CODE. CRIM.
PROC. ANN. art. 35.16(a)(9), (c)(2) (West 2006); Gardner v. State, 306 S.W.3d 274,
295 (Tex. Crim. App. 2009). The proponent of a challenge for cause bears the initial
burden of establishing that the challenge is proper. Gardner, 306 S.W.3d at 295.
The test is whether the bias or prejudice would substantially impair the prospective
juror’s ability to carry out his oath and instructions in accordance with the law.
Davis v. State, 329 S.W.3d 798, 807 (Tex. Crim. App. 2010). Because this court is
only given a cold record for review, the trial court is in the best position to observe
the potential juror’s demeanor and responses. Chambers v. State, 866 S.W.2d 9, 22
(Tex. Crim. App. 1993). Accordingly, we review a trial court’s decision regarding
for-cause challenges for an abuse of discretion. Davis, 329 S.W.3d at 807; Kemp v.
State, 846 S.W.2d 289, 301 (Tex. Crim. App. 1992).
The Texas Court of Criminal Appeals has repeatedly held that “[b]efore a
prospective juror 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).
Thus, a proponent of a challenge for cause “does not meet this burden until he has
shown that the veniremember understood the requirements of the law and could not
overcome his prejudice well enough to follow the law.” Id.
6Appellant’s trial counsel began by asking each juror how much credibility,
based on a scale of one to five, the juror would afford an officer of the law before
any testimony was given, and each potential juror answered. The scale of “one to
five” was only vaguely explained. Here, the record provides no indication that the
potential jurors were informed by Appellant’s trial counsel that they were required
by law to impartially judge the credibility of the witnesses. See Hernandez v. State,
563 S.W.2d 947, 950 (Tex. Crim. App. 1978). Nor did Appellant’s trial counsel ask
the potential jurors whether they could follow that law, regardless of their personal
views concerning an officer’s credibility.
That some of the potential jurors answered that they would rank an officer’s
initial credibility as a “five” does not necessarily equate to an admission that the
juror would absolutely believe the officer’s testimony once it is given. Nor does it
equate to the venireperson’s inability to set aside preconceived notions or an
admission of the venireperson’s inability to follow the law. The law is concerned
with whether a juror will always believe an officer’s testimony, regardless of how it
might conflict with other testimony or evidence. See Jones v. State, 982 S.W.2d
386, 389 (Tex. Crim. App. 1998) (citing Hernandez, 563 S.W.2d at 950). Therefore,
Appellant failed to establish the predicate necessary to properly challenge for cause
any of the jurors complained of here.
In Hernandez, the Court of Criminal Appeals held that bias expressed by a
panelist was sufficient for the trial court to use its discretion to strike for cause, where
the panelist stated that under no circumstances would she believe that a police officer
would lie from the witness stand. 563 S.W.2d at 950.
Her voir dire examination revealed she believed a police officer would
always tell the truth. When considering the fact that three of the four
State’s witnesses were police officers, these responses become
especially important. A defendant is entitled to a juror who will
impartially judge the credibility of the witnesses. [The panelist’s]
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testimony revealed that her predisposition to believe police officers
would have prevented her from impartially judging the credibility of
those witnesses. Such responses effectively demonstrated bias against
the appellant.
Id. at 950 (citation omitted).
Because of the significant discretion afforded to the trial court, it matters on
appeal whether the claimed error is based on the trial court’s sustaining or denial of
a challenge for cause. While a veniremember’s inclination to believe the testimony
of a police officer more than other witnesses may be sufficient to justify the trial
court’s sustaining a challenge for cause, without more, it is not enough to compel
excusal, nor is it an abuse of discretion if the trial court denies a for-cause challenge
on these grounds. See Leach v. State, 770 S.W.2d 903, 907 (Tex. App.—Corpus
Christi–Edinburg 1989, pet. ref’d) (upholding grant of State’s challenge for cause
where the veniremember stated he would be very skeptical of the testimony of any
police officer due to son’s experiences with officers). This is true even if the
veniremember also asserts that he will judge the individual credibility of each
witness. See Smith v. State, 907 S.W.2d 522, 530–31 (Tex. Crim. App. 1995)
(holding a veniremember was not challengeable for cause when the veniremember
stated he would give credibility to the testimony of Texas Rangers over other
witnesses but would nevertheless weigh the credibility); Lane v. State, 822 S.W.2d
35, 44 (Tex. Crim. App. 1991); Harris v. State, 784 S.W.2d 5, 21 (Tex. Crim. App.
1989); Montoya v. State, 810 S.W.2d 160, 170 (Tex. Crim. App. 1989); see also
Zakkizadeh v. State, 920 S.W.2d 337 (Tex. App.—Houston [1st Dist.] 1995, no pet.)
(denial of challenge for cause upheld where veniremember who was a police officer
initially said he would be more likely to believe a fellow officer but later said it
would depend on the testimony); Laca v. State, 893 S.W.2d 171, 182–83 (Tex.
App.—El Paso 1995, pet. ref’d) (holding a veniremember was not challengeable for
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cause when the veniremember stated he would give greater credibility to an officer
regarding an officer’s training and expertise).
Appellant failed to establish the predicate necessary to properly challenge for
cause any of the jurors complained of here. We cannot hold that the trial court
abused its discretion in denying Appellant’s for-cause challenges. We overrule
Appellant’s second issue.
III. Manner of Objections to the Jurors
In her third issue on appeal, Appellant contends that the trial court erred in
denying Appellant’s trial counsel’s request to object to the inclusion of certain jurors
outside of the panel’s presence. Appellant asserts that the trial court’s decision
denying her counsel the right to make objections to the jurors outside of their hearing
caused Appellant’s trial counsel to “alienat[e] the objectionable jurors and
prejudic[e] them against Appellant by Appellant’s desire to remove them as biased.”
Appellant contends that this resulted in a constitutionally insufficient procedure and
a violation of her constitutional right to an impartial jury.
A criminal defendant has a constitutional right to trial by an impartial jury.
U.S. CONST. amend. VI; TEX. CONST. art. 1, § 10. This right is also a fundamental
requirement of due process. See U.S. CONST. amend. XIV; Morgan v. Illinois, 504
U.S. 719, 727 (1992) (citing Irvin v. Dowd, 366 U.S. 717, 721–22 (1961)). The
conduct of the voir dire examination rests largely within the sound discretion of the
trial court. McGee v. State, 923 S.W.2d 605, 607 (Tex. Crim. App. 1995);
Weaver v. State, 476 S.W.2d 326, 327 (Tex. Crim. App. 1972) (citing Grizzell v.
State, 298 S.W.2d 816 (Tex. Crim. App. 1956)).
Generally, in order to demonstrate harm from the denial of challenges for
cause, the record must show that Appellant (1) made a clear and specific challenge
for cause against a venireperson, (2) used a preemptory challenge on the complained
of venireperson, (3) exhausted all remaining preemptory challenges, (4) requested
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and was denied additional strikes, and (5) identified on the record the objectionable
venireperson whom he would have removed with the additional strike but who
remains on the juror list and then actually sits on the jury. See Nava v. State, 415
S.W.3d 289, 305 (Tex. Crim. App. 2013); see also Hudson v. State, 620 S.W.3d 726,
729–30 (Tex. Crim. App. 2021) (this issue is properly one of harm, often confused
with preservation of error (citing Johnson v. State, 43 S.W.3d 1, 5 n.6 (Tex. Crim.
App. 2001))).
We acknowledge that this procedure is complicated and fraught with
stumbling blocks for any practitioner in the throes of trial and faced with the difficult
tasks of keeping up with juror names, numbers, and responses to voir dire questions
and contemplating follow-up questions while weighing which panelists upon whom
to exercise peremptory strikes. Appellant’s counsel nevertheless endeavored to
follow the proper procedure by timely making his challenges for cause, using his
preemptory strikes, and requesting additional strikes, which were subsequently
denied. See generally Nava, 415 S.W.3d at 305. Appellant also objected to the
panel, once seated but not yet sworn, and specifically identified five of the twelve
jurors as those that he would have struck had additional peremptory strikes been
allowed. During a bench conference before the names of the selected jurors were
announced, Appellant’s counsel explained to the court five separate times on the
record that he would like to object to the panel and to the specific panelists outside
the hearing of the panel. He also explained that to do otherwise would unduly
prejudice his client. Once the proposed jury was seated but not sworn, counsel for
Appellant again asked to make his objections to preserve error outside the presence
of the jury. He explained that his client’s rights to a fair trial, due process, effective
assistance of counsel, and fundamental due process would be violated and that those
rights guaranteed by the Fifth, Sixth, and Fourteenth Amendments to the United
States Constitution would be unduly prejudiced. When all of his attempts to make
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his objections outside of the venire panel and to specific panel members were
overruled, as he had previously advised the trial court, counsel then felt compelled
to make his objections in front of the jury as the trial court demanded. Counsel for
Appellant followed with a motion for mistrial in front of the jury, which was also
overruled. Despite his efforts, Appellant’s attorney only objected to the
veniremembers after they had been seated. The proper procedure, however, is for
the defendant—after exhausting his peremptory strikes and requesting additional
strikes, which were denied—to identify one or more panelists that are objectionable,
and the defendant must do so before knowing who the other party struck and before
knowing who will sit on the jury. See Nava, 415 S.W.3d at 305. The rationale
behind this is that the objectionable panelists might be struck by the other party or
might be so far down the list that the panelists could not have been picked for the
jury. See Comeaux v. State, 445 S.W.3d 745, 751 (Tex. Crim. App. 2014); Lored v.
State, 159 S.W.3d 920, 923 (Tex. Crim. App. 2004) (a party must show that it made
the trial court aware of that complaint “at a time and in a manner so that it can be
corrected”). The attorneys turn in their peremptory strike lists and notify the court
of the specific objectionable prospective jurors remaining before knowing who will
end up actually being seated as jurors in the box. See Comeaux, 445 S.W.3d at 751.
This prevents a party from belatedly conforming its claimed objections to the jurors
actually seated. See id.
Regardless of whether Appellant’s counsel perfectly adhered to the procedure
set forth in Nava, we cannot merely conclude ipso facto that all of the events
complained of by Appellant thereafter could not then be error. There are many times
when trial counsel, on the chance that the trial court’s rulings were erroneous, must
nevertheless strive to preserve for appeal by objection those perceived errors.
Therefore, the question remains: Did the trial court err in requiring Appellant to
exercise her right to object to the panel and five of the twelve ultimate jury members
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in open court and within the hearing of those jurors? We conclude that, under these
facts, the trial court did not abuse its discretion.
Although the parameters of this issue are unclear under Texas caselaw, Texas
courts have held in the past that a trial court does not abuse its discretion by refusing
counsel permission to approach the bench to make a challenge for cause or objection
thereto. See, e.g., Camacho v. State, 864 S.W.2d 524, 531 (Tex. Crim. App. 1993);
Sinegal v. State, 712 S.W.2d 605, 606 (Tex. App.—Beaumont 1986, pet. ref’d)
(generally overruling an issue that stated “[t]he court erred in not letting Appellant’s
attorney approach the bench in order to challenge for cause Juror No. 1 . . . and on
the improper comment by the judge on the right of a defendant in not taking the
stand”). In Camacho, the Texas Court of Criminal Appeals was confronted with a
similar issue to the one currently before this court and briefly held:
Appellant is, however, unable to inform this Court of any authority
which sustains his assertion that the trial court erred by keeping the
challenged juror present when a challenge for cause was made.
We have held that the conduct of voir dire is a matter confided to
the sound discretion of the trial court. The record in the case at bar
reveals no abuse of discretion. Point of error number eleven is
overruled.
Camacho, 864 S.W.2d at 531 (citations omitted). Beyond this, we find only
persuasive authority that directly addresses the question of whether and when a trial
court may abuse its discretion by refusing to allow a party to make their challenges
to venirepersons outside the presence of the panel. See People v. Flockhart, 304
P.3d 227, 236–37 n.8 (Colo. 2013) (rejecting the ABA’s per se rule that all
challenges should be made outside the presence of the jury and stating that “although
the better practice is that espoused by the ABA, we hold that a trial court retains
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discretion to conduct challenges for cause in open court. If the trial court employs
this practice, it must proceed with caution”). 1
We liken the facts at hand to that of a party being required to make her
challenges for cause in front of and within the hearing of the venirepersons that the
party is moving to strike. Here, the trial court offered no justification as to why
Appellant’s trial counsel’s request to approach the bench to make the objection could
not be accommodated. Where a trial court forces counsel to make objections in front
of the jury, the trial court creates a substantial risk that the jurors to which counsel
objects will harbor a bias against counsel’s client for openly challenging their ability
to remain fair and impartial. Without clear reason to require objections to
venirepersons to be made in their presence, we firmly believe the better practice is
that trial courts should refrain from such conduct. See id.Notwithstanding, we reject the use of a per se rule when determining if a trial
court abuses its discretion by refusing to allow counsel to make his objections
outside of the jury’s presence. While the trial court could have allowed objections
outside of the hearing of the seated jury, any potential harm was self-inflicted since
the procedure in Nava was not precisely followed. While other fact scenarios might
well rise to the level of reversible harm, this one does not. Just as the court held in
Camacho, Appellant provides no authority that supports her assertion that the trial
court erred in refusing to permit her objection to be made outside the presence of the
jury, and under these facts, we cannot hold that the trial court’s conduct constituted
an abuse of discretion. See Camacho, 864 S.W.2d at 531.
1
The court compared Wagner v. State, 646 S.E.2d 676, 679 (Ga. 2007) (finding no reversible error
in the trial court’s order denying a request “to have all challenges for cause heard outside the jurors’
presence”), and State v. Hardin, 498 N.W.2d 677, 681 (Iowa 1993) (reviewing trial court’s decision to
conduct challenges for cause in open court for an abuse of discretion), and State v. Biegenwald, 524 A.2d
130, 136 (N.J. 1987) (same), with Brooks v. Commonwealth, 484 S.E.2d 127, 130 (Va. Ct. App. 1997)
(concluding that counsel should be afforded the opportunity to make and to argue challenges for cause
outside the prospective jurors’ presence to avoid “the possibility of bias in the mind of the juror against the
defendant, where bias may not have previously existed”).
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Appellant also asserts that the trial court’s decision violated Rule 104(c)(3) of
the Texas Rules of Evidence, which states that the trial court is to conduct any
hearing on a preliminary question outside the hearing of a jury if justice so requires.
TEX. R. EVID. 104(c)(3). However, Rule 104(c) plainly applies only to preliminary
questions about “whether a witness is qualified, a privilege exists, or evidence is
admissible.” Id. R. 104(a). Because Appellant was not making a preliminary
objection concerning any piece of evidence, this evidentiary rule does not apply. See
id. We overrule Appellant’s third issue.
IV. Jury-Charge Error
In her fourth issue on appeal, Appellant contends that the trial court erred in
failing to include in the jury charge an extraneous offense instruction and an
Article 38.23 instruction, see CRIM. PROC. art. 38.23 (West 2018).
“[A]ll alleged jury-charge error must be considered on appellate review
regardless of preservation in the trial court.” Kirsch v. State, 357 S.W.3d 645, 649
(Tex. Crim. App. 2012). In reviewing a jury charge, we first determine whether
error occurred. Id. If no error occurred, our analysis ends. Id. If error occurred and
was the subject of a timely objection in the trial court,
then reversal is required if the error is “calculated to injure the rights of
defendant,” which means no more than that there must be some harm
to the accused from the error. In other words, an error which has been
properly preserved by objection will call for reversal as long as the error
is not harmless.
Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985); see also
Hardeman v. State, 556 S.W.3d 916, 923 (Tex. App.—Eastland 2018, pet. ref’d)
(“Under Almanza, when jury-charge error has been preserved, as it was in this case,
we will reverse if the error in the court’s charge resulted in some harm to the
accused.” (citing Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005))).
Conversely, if error occurred but was not timely objected to, a defendant “will obtain
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a reversal only if the error is so egregious and created such harm that the defendant
‘has not had a fair and impartial trial’—in short ‘egregious harm.’” Almanza, 686
S.W.2d at 171. In all cases, “the actual degree of harm must be assayed in light of
the entire jury charge, the state of the evidence, including the contested issues and
weight of probative evidence, the argument of counsel and any other relevant
information revealed by the record of the trial as a whole.” Id.Appellant first contends that the trial court erred in denying Appellant’s
request to include an extraneous offense limiting instruction in the jury charge.
Appellant requested that an extraneous offense instruction be included in the jury
charge as a result of venireperson Swinney’s comments made during voir dire:
[THE PROSECUTOR]: What do you have to say about that,
Mr. Swinney?
[SWINNEY]: Well, should I say it out in front of everybody?
[THE PROSECUTOR]: It’s up to you. Both sides are entitled to
hear what you got to say.
[SWINNEY]: Well, I know this particular person.
[THE PROSECUTOR]: Okay.
[SWINNEY]: And it’s not good what I know about her.
[THE PROSECUTOR]: Okay. Let me ask you this question
then. . . . So you know the Defendant?
[SWINNEY]: I know of her. I don’t know her that well, but I
drive a propane truck and I deliver gas to people.
[THE PROSECUTOR]: All right.
[SWINNEY]: Well, I delivered gas to her years ago and she
never paid her bill.
[DEFENSE COUNSEL]: May we approach, Judge?
THE COURT: You may.
15
The parties then held a bench conference off the record. The trial court
later acknowledged that Appellant’s trial counsel timely objected to the
juror’s comments during the bench conference. After the bench conference,
the prosecutor continued:
[THE PROSECUTOR]: Without going into details about
specific things that you might know about the Defendant, have you
formed an opinion -- before hearing any evidence in this case, have you
formed an opinion as to whether or not the Defendant is guilty or not
guilty?
[SWINNEY]: Well, from her past --
[THE PROSECUTOR]: Without going into certain details, I
appreciate that you want to explain, but just that simple question, have
you formed an opinion already before you hear any evidence in the
case?
[SWINNEY]: To a point. I’m just being honest with you.
[THE PROSECUTOR]: Yes, sir. And I want you to be.
[SWINNEY]: Things that I know. It’s not good. Okay.
[THE PROSECUTOR]: Would you be able --
[SWINNEY]: This has been going on -- this is not just recent.2
Generally, “a defendant is entitled to limiting instructions on the use of
extraneous offenses during the guilt phase only if he timely requests those
instructions when the evidence is first introduced.” Delgado v. State, 235 S.W.3d
244, 253 (Tex. Crim. App. 2007). Here, not only does Appellant concede that she
failed to request a limiting instruction at the time the comments were made, no
extraneous offenses were ever introduced into evidence. Statements made during
voir dire examination are not evidence. Adams v. State, 418 S.W.3d 803, 811 (Tex.
App.—Texarkana 2013, pet. ref’d). Additionally, there is no indication that the jury
2
The trial court subsequently granted Appellant’s challenge for cause against Swinney.
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improperly considered Swinney’s statements regarding Appellant not having paid a
past gas bill to be related, in any way, to determining Appellant’s guilt in the case
before it. For these reasons, we conclude that the trial court did not err in denying
Appellant’s request for a limiting instruction on extraneous offenses.
Appellant also contends that she was entitled to an Article 38.23 instruction.
See CRIM. PROC. art. 38.23 (authorizing trial courts to instruct juries to disregard
evidence that was illegally seized). She asserts that the audio portion accompanying
the video of Appellant’s arrest—which she contends in her fifth issue should have
been admitted into evidence—contained statements by the officers that could have
been interpreted as requiring an Article 38.23 instruction and, therefore, that the trial
court erred in not including such an instruction. We disagree.
The record reflects that Appellant requested that the trial court include an
Article 38.23 instruction in the jury charge. However, such an instruction is proper
only when there are “disputed issues of fact that are material to [her] claim of a
constitutional or statutory violation that would render evidence inadmissible.”
Madden v. State, 242 S.W.3d 504, 509–10 (Tex. Crim. App. 2007). Generally, a
fact issue as to whether evidence was legally obtained may be raised “from any
source, and the evidence may be strong, weak, contradicted, unimpeached, or
unbelievable.” Garza v. State, 126 S.W.3d 79, 85 (Tex. Crim. App. 2004) (quoting
Wilkerson v. State, 933 S.W.2d 276, 280 (Tex. App.—Houston [1st Dist.] 1996, pet.
ref’d)). However, if no material fact issue is raised by the evidence, then the trial
court does not err in refusing to charge the jury. See id.Appellant contends that the audio which accompanied the video evidence
included certain statements made by the officers that “could be interpreted to at least
raise a fact issue concerning the motivation for the stop, which could ultimately lead
to an evidentiary issue.” However, it is well settled that, when an officer makes a
valid traffic stop, the existence of another motive for the stop is irrelevant. See
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Villareal v. State, 116 S.W.3d 74 (Tex. App—Houston [14th Dist.] 2001, no pet.).
Even if we assume that the officers’ comments did in fact reveal alternative
motivations for the stop, it is undisputed that Appellant was pulled over for traveling
thirty-six miles per hour in a thirty-mile-per-hour zone. Therefore, the officers had
a valid reason to stop Appellant and any alternative motivations the officers may
have had are irrelevant. No material issue of fact existed that would have warranted
an Article 38.23 instruction. For these reasons, the trial court did not err in refusing
Appellant’s request for an instruction under Article 38.23. We overrule Appellant’s
fourth issue.
V. Admission of Evidence
In her fifth issue on appeal, Appellant contends that the trial court erred under
the rule of optional completeness when it admitted into evidence the officers’
dashcam video. The video exhibit as offered by the State depicted the stop and
subsequent arrest, but it did not include audio because the officers’ discussions
during the video referenced extraneous offenses allegedly committed by Appellant.
Appellant suggested, however, that “some of the audio needs to be heard by the
jury,” and trial counsel had created a redaction list for that purpose.
A trial court’s decision to admit or exclude evidence is reviewed under an
abuse of discretion standard. Shuffield v. State, 189 S.W.3d 782, 793 (Tex. Crim.
App. 2006). A trial court abuses its discretion when it acts outside the zone of
reasonable disagreement. Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim. App.
2003). We will uphold the trial court’s ruling on the admission or exclusion of
evidence if the ruling was proper under any legal theory or basis applicable to the
case. Martinez v. State, 91 S.W.3d 331, 336 (Tex. Crim. App. 2002).
The rule of optional completeness provides: “If a party introduces part of an
act, declaration, conversation, writing, or recorded statement, an adverse party may
inquire into any other part on the same subject. An adverse party may also introduce
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any other act, declaration, conversation, writing, or recorded statement that is
necessary to explain or allow the trier of fact to fully understand the part offered by
the opponent.” TEX. R. EVID. 107.
During trial, the trial court admitted the video but excluded the entire
accompanying audio portion, stating:
The Court examined the proposed video before any testimony was
offered, and finding no reason to suggest especially in light of the
testimony that followed, that is, that the officers made a stop based upon
a speeding violation and conducted a search based upon consent to
search, there is no -- there is nothing to suppress.
Here, Appellant fails to demonstrate that the audio portion of the video was actually
necessary to fully understanding or explaining the matter. Appellant asserts that the
audio was necessary to fully understand the matter of whether she consented to the
search. However, the record before us is devoid of any evidence indicating that
portions of the audio would support Appellant’s contention. Appellant did not make
an offer of proof, nor did she request that the audio be included as a court exhibit
only—so that it would be available for review on appeal. Accordingly, we cannot
hold that the trial court abused its discretion when it admitted the video into evidence
without the accompanying audio. Even though Appellant offered a list of suggested
redactions to the audio portion of the evidence, the trial court was within its
discretion to determine that the omitted audio did not contain any relevant
information that would raise an issue of material fact. We overrule Appellant’s fifth
issue.
VI. Juror’s Prejudicial Comment
In her sixth issue on appeal, Appellant contends that she was denied due
process when the trial court failed to grant a mistrial after venireperson Swinney
made an allegedly improper comment during voir dire. Appellant contends that
Swinney’s comments, which we discussed in Appellant’s fourth issue, irreparably
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prejudiced the jury against Appellant and resulted in a deprivation of her
constitutional right to a fair trial. We disagree.
We review a court’s denial of a motion for mistrial for an abuse of discretion.
Simpson v. State, 119 S.W.3d 262, 272 (Tex. Crim. App. 2003).
When a potential juror makes a possibly prejudicial statement in
front of the entire panel, the appellant must show harm by
demonstrating that (1) other members of the panel heard the remark,
(2) potential jurors who heard the remark were influenced to the
prejudice of the appellant, and (3) the juror in question or some other
juror who may have had a similar opinion was forced upon the
appellant.
Walker v. State, 469 S.W.3d 204, 208 (Tex. App.—Tyler 2015, pet. ref’d) (citing
Callins v. State, 780 S.W.2d 176, 188 (Tex. Crim. App. 1989)); see also Alvarado v.
State, No. 11-18-00198-CR, 2020 WL 3470464, at *3 (Tex. App.—Eastland
June 25, 2020, pet. ref’d) (mem op., not designated for publication) (applying the
same test to show harm based on the trial court’s denial of a motion for mistrial).
Absent these three elements, no error will be found. See Walker, 469 S.W.3d at 208.
An impartial jury is defined as one that does not favor a party or an individual
because of the emotions of the human mind, heart, or affections. See
Durrough v. State, 562 S.W.2d 488, 489–90 (Tex. Crim. App. 1978); Russell v.
State, 146 S.W.3d 705, 710 (Tex. App.—Texarkana 2004, no pet.). This means that
the defendant, the cause, and the issues involved in the cause must not be prejudiced.
Durrough, 562 S.W.2d at 490; Russell, 146 S.W.3d at 710. Mere juror exposure to
information about a defendant’s prior convictions or news accounts of the crime does
not, by itself, raise a presumption the defendant was deprived of due process and
cannot receive a fair trial by an impartial jury. Murphy v. Florida, 421 U.S. 794,
799 (1975). Jurors do not have to be totally ignorant of the facts and issues of a
particular case. Russell, 146 S.W.3d at 710.
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In McGee v. State, the defendant claimed that he was harmed by the trial
court’s failure to dismiss the entire venire panel after a member of the panel
responded to questioning during voir dire about whether she felt that it would be
difficult to find the defendant guilty and assess her punishment. 923 S.W.2d at 607.
The venireperson remarked: “It’s other things that have happened, and I wouldn’t
want to be—I don’t know whether I could—I can say put the past behind me and go
on with it. With that, it’s personal; and so that’s the reason I wouldn’t want to be on
the jury.” Id. When questioned further about Appellant, the venireperson claimed,
“I know of prior convictions.” Id.
Here, as in McGee, “we infer from the record that other members of the venire
heard the remark, even though [A]ppellant did not question the other members of
the venire to determine whether they in fact heard it.” Id. at 607–08. Unlike the
statements made in front of the panel in McGee, Swinney’s comments regarding
Appellant did not overtly allege a crime; rather, they referred to a claim that
Appellant did not, in the past, pay a gas bill. See id. Contrary to Appellant’s
assertion, within the record Swinney made no insinuation about “Appellant’s
involvement in narcotics.” Even if Swinney’s comments could be interpreted as
alleging a crime relevant to the offense, there is no evidence in the record that those
who heard the comment were influenced by it. In fact, there is nothing in the record
to indicate that the other venirepersons were questioned about it, nor was there any
mention of Swinney’s comments.
Furthermore, there is nothing in the record to show that Appellant was forced
to accept a juror who was actually prejudicially influenced by Swinney’s voir dire
comments. See Callins, 780 S.W.2d at 188. Just as the court concluded that McGee
failed to establish harm, we conclude that the record before us does not show that
Appellant was harmed by Swinney’s remarks. See McGee, 923 S.W.2d at 607.
Appellant has not established that members of the jury panel that may have heard
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the comments of Swinney were influenced by those comments to the prejudice of
Appellant or that such members were forced upon Appellant. We overrule
Appellant’s sixth issue.
This Court’s Ruling
We affirm the judgment of the trial court.
W. BRUCE WILLIAMS
JUSTICE
July 22, 2021
Publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.
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