                                                                                  ACCEPTED
                                                                             01-11-00258-CR
                                                                   FIRST COURT OF APPEALS
                                                                           HOUSTON, TEXAS
                                                                        3/26/2015 5:27:53 PM
                   No. 01-11-00258-CR                                    CHRISTOPHER PRINE
                                                                                      CLERK
                            In the
                     Court of Appeals
                           For the
                   First District of Texas                 FILED IN
                                                    1st COURT OF APPEALS
                         At Houston                     HOUSTON, TEXAS
                                         3/26/2015 5:27:53 PM
                                                    CHRISTOPHER A. PRINE
                         No. 1284896                        Clerk

                  In the 177th District Court
                   Of Harris County, Texas
                  

                   JEREMY THOMAS
                        Appellant
                           V.
                  THE STATE OF TEXAS
                        Appellee
                  

                STATE’S APPELLATE BRIEF
                  

                                          DEVON ANDERSON
                                          District Attorney
                                          Harris County, Texas

                                          DAN MCCRORY
                                          Assistant District Attorney
                                          Harris County, Texas
                                          mccrory_daniel@dao.hctx.net

                                          GRETCHEN FLADER
                                          Assistant District Attorney
                                          Harris County, Texas

                                          1201 Franklin, Suite 600
                                          Houston, Texas 77002
                                          Tel.: 713/755-5826
                                          FAX No.: 713/755-5809

                                          Counsel for Appellee

ORAL ARGUMENT REQUESTED ONLY IF REQUESTED BY APPELLANT
              STATEMENT REGARDING ORAL ARGUMENT


      Pursuant to TEX. R. APP. P. 39.7, the State requests oral argument only if oral

argument is requested by appellant.




                                          i
                                           TABLE OF CONTENTS

STATEMENT REGARDING ORAL ARGUMENT .......................................................... i

INDEX OF AUTHORITIES .............................................................................................. iii

STATEMENT OF THE CASE ........................................................................................... 1

STATEMENT OF FACTS .................................................................................................. 1

SUMMARY OF THE ARGUMENTS ................................................................................ 6

REPLY TO POINT OF ERROR ONE ................................................................................ 8

REPLY TO POINT OF ERROR TWO ............................................................................. 15

REPLY TO POINT OF ERROR THREE ......................................................................... 23

REPLY TO POINT OF ERROR FOUR ........................................................................... 31

CONCLUSION ................................................................................................................. 37

CERTIFICATE OF SERVICE .......................................................................................... 38

CERTIFICATE OF COMPLIANCE ................................................................................ 38




                                                              ii
                                    INDEX OF AUTHORITIES


CASES

Arnold v. State,
  234 S.W.3d 664 (Tex. App.--Houston [14th Dist.] 2007, no pet.) ................................ 12

Barley v. State,
  906 S.W.2d 27 (Tex. Crim. App. 1995) ............................................................ 17, 18, 21

Beets v. State,
  767 S.W.2d 711 (Tex. Crim. App. 1987) ...................................................................... 35

Blue v. State,
  41 S.W.3d 129 (Tex. Crim. App. 2000) ............................................................ 25, 27, 28

Dillard v. State,
  No. 14-06-00940-CR, 2007 WL 3342029 (Tex. App.--Houston [14th Dist.]
   Nov.13, 2007, no pet.) (not designated for publication) .............................................. 35

Ford v. State,
  14 S.W.3d 382 (Tex. App.--Houston [14th Dist.] 2000, no pet.) .................................. 35

Fransaw v. State,
  671 S.W.2d 539 (Tex. App.--Houston [14th Dist.] 1983, pet. ref’d) ............................ 35

Garcia v. State,
  No. 14-06-00570-CR, 2007 WL 2447301 (Tex. App.--Houston
  [14th Dist.] Aug. 30, 2007, pet. ref’d) (not designated for publication) ...................... 18

Gardner v. State,
  306 S.W.3d 274 (Tex. Crim. App. 2009) ................................................................ 31, 35

Gardner v. State,
  733 S.W.2d 195 (Tex. Crim. App. 1987) ...................................................................... 35

Geisberg v. State,
  945 S.W.2d 120 (Tex. App.--Houston [1st Dist.] 1996), aff’d,
  984 S.W.2d 245 (Tex. Crim. App. 1998) ..................................................................... 13

Heller v. State,
  279 S.W.3d 823 (Tex. App.--Amarillo 2008, no pet.) .................................................. 13



                                                       iii
Hollins v. State,
  805 S.W.2d 475 (Tex. Crim. App. 1991) ...................................................................... 13

Howell v. State,
  175 S.W.3d 786 (Tex. Crim. App. 2005) ...................................................................... 12

Jenkins v. State,
  912 S.W.2d 793 (Tex. Crim. App. 1993) ...................................................................... 22

Johnson v. State,
  No. 05-94-01743-CR, 1996 WL 253345 (Tex. App.--Dallas May
   13, 1996, pet. ref’d, untimely filed) (not designated for publication) .......................... 36

Lesso v. State,
  295 S.W.3d 16 (Tex. App.--Houston [1st Dist.] 2009, pet. ref’d) ................................ 22

Lyssy v. State,
  429 S.W.3d 37 (Tex. App.--Houston [1st Dist.] 2014, no pet.) .................................... 16

May v. State,
 139 S.W.3d 93 (Tex. App.--Texarkana 2004, pet. ref’d) .............................................. 13

Mendoza v. State,
 443 S.W.3d 360 (Tex. App.--Houston [14th Dist.] 2014, no pet.) ................................ 17

Miller v. State,
  312 S.W.3d 162 (Tex. App.--Fort Worth 2010, no pet.) ............................................... 17

Mims v. State,
  434 S.W.3d 265 (Tex. App.--Houston [1st Dist.] 2014, no pet.) .................................. 17

Neal v. State,
  108 S.W.3d 577 (Tex. App.--Amarillo 2003, no pet.) .................................................. 14

Perillo v. State,
  758 S.W.2d 567 (Tex. Crim. App. 1988) ...................................................................... 35

Robinson v. State,
  989 S.W.2d 456 (Tex. App.--Houston [1st Dist.] 1999, pet. ref’d) .............................. 36

Runnels v. State,
  193 S.W.3d 105 (Tex. App.--Houston [1st Dist.] 2006, no pet.) .................................. 14

Sattiewhite v. State,
  786 S.W.2d 271 (Tex. Crim. App. 1989) ...................................................................... 36



                                                       iv
Schuster v. State,
  435 S.W.3d 362 (Tex. App.--Houston [1st Dist.] 2014, no pet.) .................................. 13

Unkart v. State,
  400 S.W.3d 94 (Tex. Crim. App. 2013) ................................................ 24, 26, 27, 29, 30

Williams v. State,
  622 S.W.2d 116 (Tex. Crim. App. 1981) ...................................................................... 36

Woodal v. State,
 350 S.W.3d 691 (Tex. App.--Amarillo 2011, no pet.) ............................................ 34, 35

Wright v. State,
 374 S.W.3d 564 (Tex. App.--Houston [14th Dist.] 2012, pet. ref’d) ............................ 14

Yazdchi v. State,
  428 S.W.3d 831 (Tex. Crim. App. 2014) ...................................................................... 13

STATUTES

TEX. CODE CRIM. PROC. ANN. art. 36.28 (West 2006) ..................................................... 11

RULES

Tex. R. App. P. 33.1 .................................................................................................... 24, 34

TEX. R. APP. P. 39.7.............................................................................................................. i

Tex. R. App. P. 44.2 .......................................................................................................... 30




                                                                 v
TO THE HONORABLE COURT OF APPEALS:


                         STATEMENT OF THE CASE

      Appellant was charged by indictment with the offense of murder. (CR 2).

After the jury found appellant guilty of the charged offense, the judge sentenced

appellant to life confinement. (CR 144).


                           STATEMENT OF FACTS

      Ochelata Reliford moved into an apartment complex located at 9700 Court

Glen on June 2, 2006. (RR V 172). He lived in a first-floor apartment and he

quickly befriended Ciarra, the woman who lived upstairs from him. (RR IV 177-

178; RR V 141, 173-174, 206). Reliford also met appellant within a week of

having moved into the apartment complex. (RR V 174-175). Appellant, who was

known as “Red,” was Ciarra’s boyfriend and lived with her in the upstairs

apartment. (RR V 174). Reliford saw appellant “going and coming often” and had

conversations with him on occasion. (RR V 207-208). The complainant lived in a

nearby first-floor apartment that was within view of both Reliford’s apartment and

appellant’s apartment. (RR IV 124, 190-191, 215-218; RR VIII – SX 16, DX 1).

      On the day of the murder, August 3, 2006, Reliford had the day off from his

job as a social worker for the Texas Health and Human Services Commission. (RR

V 173, 176). So he stayed home intending to relax. (RR V 177). He went outside
on his patio at about 10:30 a.m. and saw appellant, Ciarra, the complainant, and a

couple of other men at the complainant’s apartment. (RR V 177-178). They were

having a heated discussion about the complainant owing appellant money. (RR V

178).

        When Reliford left his apartment to go to the store at about 4:30 p.m., he

saw the complainant outside washing his car. (RR V 178-179). Appellant and

appellant’s friend, Carnell Meredith (aka Slim), were arguing with the

complainant. (RR IV 32-33; RR V 47). The complainant slammed his car door and

walked back toward his apartment, with appellant and Meredith following him.

(RR V 179). Reliford also saw appellant fighting with his girlfriend throughout the

day. (RR V 180). Reliford overheard her tell appellant “you’re stupid” and “don’t

do it.” (RR V 180).

        At about 10:30 p.m., Reliford walked a visiting friend, Trancquena Johnson,

out to her car. (RR V 181-184). Once outside, Reliford heard appellant and Ciarra

arguing. (RR V 185). Ciarra was standing by her door and appellant was standing

in the middle of the stairway, with two men standing behind him. (RR V 185-188).

Reliford got a good look at appellant and recognized him. (RR V 148). Ciarra,

who was crying, called appellant stupid and told him “don’t.” (RR V 188, 231).

Appellant stopped arguing with Ciarra and walked down the stairs with his two

companions following. (RR V 188, 231, 238-239).



                                         2
      Reliford watched appellant walk to the complainant’s apartment, knock on

the door (which was illuminated by a porch light), and turn the door knob. (RR V

189-190, 237). Appellant’s two companions were standing behind him. (RR V

237). There were also several other men standing off to the side. (RR V 237-238).

Reliford did not know where these men came from. (RR V 237-238).

      Appellant took a few steps into the complainant’s apartment where the

complainant met him. (RR V 190). Appellant pulled out a gun and shot the

complainant in the head. (RR V 190). Appellant fired the gun three or four times.

(RR V 191). Appellant’s back was to Reliford when the shots were fired, but

Reliford had no doubt that appellant was the shooter. (RR V 191). Reliford

explained that he watched appellant the entire time from when appellant walked

down the stairs until the shots were fired. (RR V 191-192, 230). He never took his

eyes off of appellant. (RR V 191-192).

      Reliford continued to watch appellant as appellant ran back in the direction

from which he had come and ran past the stairway to his apartment. (RR V 193-

194). In other words, appellant was running toward Reliford. (RR V 242-243).

Appellant had a gun in his hand. (RR V 243). Appellant’s two companions

followed him as he fled. (RR V 195). Reliford looked at appellant as he ran past.

(RR V 195).




                                         3
      Reliford recalled that no one other than appellant appeared to participate in

the murder. (RR V 240). Reliford did not see any of the other men in possession of

a gun. (RR V 239).

      When the police arrived at the scene on the night of the offense, Reliford did

not speak to them because he was scared. (RR V 196). However, he contacted the

police about a month later and provided a written statement at the police station.

(RR V 197-198). He also viewed several photospreads. (RR V 198). Reliford

identified Meredith and Ciarra’s brother as being present when the shooting

occurred. (RR V 195-202). He identified appellant as the shooter. (RR V 199-200).

      Trancquena Johnson, the friend who was visiting Reliford on the night of the

murder, also identified appellant as the shooter. Johnson recalled that Reliford and

appellant lived in the same apartment building, with appellant living upstairs from

Reliford. (RR IV 177-178). Before the day of the murder, she had seen appellant

and was able to recognize him, but had not met him. (RR IV 152-156, 199).

      On the night of the murder, Johnson arrived at Reliford’s apartment at about

8:00 p.m. (RR IV 157). About an hour later, Johnson went outside and saw the

complainant, appellant, another man, and a female arguing near the complainant’s

apartment. (RR IV 157-158, 181). She recognized appellant at this time. (RR IV

204). Johnson returned inside Reliford’s apartment, but left again a short while

later. (RR IV 159-160).



                                         4
      While standing at her car preparing to leave, Johnson had a clear view of the

complainant’s apartment. (RR IV 160-162). She saw the same four people arguing.

(RR IV 162-163).      While standing right in front of the complainant’s door,

appellant raised a gun and fired it at least three times. (RR IV 163-164). Appellant

then ran past Johnson with a gun in his hand. (RR IV 165, 195, 207, 211-212). She

got a good look at appellant and recognized him from having seen him on previous

occasions. (RR IV 165-167). According to Johnson, appellant was wearing a black

T-shirt. (RR IV 165-166). Appellant’s male companion was wearing a white T-

shirt and he ran the opposite direction. (RR IV 166-168).

      A third person witnessed a portion of this confrontation. Maria Coronado

lived in the upstairs apartment next to appellant’s apartment. (RR IV 212-216). On

the night of the murder, she looked out her window and saw appellant and another

man, Meredith, arguing with the complainant at the complainant’s apartment. (RR

IV 32, 217-219, 227). She got a good look at appellant. (RR IV 221). After they

argued for several minutes, appellant and Meredith went upstairs and then went

“right back downstairs” to the complainant’s apartment (RR IV 219-221).

Coronado then heard four or five gunshots and saw appellant and Meredith run

away. (RR IV 220-221). She did not see who fired the shots. (RR IV 220).

      Brandon Lusk, another resident of the apartment complex, witnessed a

portion of the confrontation. (RR IV 122-123). Lusk recalled that he was walking



                                         5
through the apartment complex toward his apartment when he saw the

complainant, whom he knew, standing outside with a tall, older, dark-skinned male

who was wearing a white T-shirt and jeans. (RR IV 124, 126-127 141). There was

no one else present. (RR IV 141-142). The complainant had just had an argument

with someone and was agitated, but he was not agitated with the tall, older man.

(RR IV 141). Lusk asked the complainant what was wrong and the complainant

indicated he had to “teach these young people respect.” (RR IV 127). Lusk

jokingly told the complainant not to shoot anybody and the complainant smiled

and laughed. (RR IV 127). Lusk then continued to his apartment. (RR IV 127-

129).

        About three minutes after he arrived home, Lusk heard three gunshots. (RR

IV 129-130). But he did not witness the shooting. (RR IV 132). He looked outside

and saw a light-skinned young man walking toward him from the direction of the

complainant’s apartment. (RR IV 129-132). The young man was carrying a pistol

in his left hand and was wearing shorts and black T-shirt. (RR IV 129, 132). Lusk

was unable to see his face and therefore could not identify appellant in court. (RR

IV 132, 134-135).


                       SUMMARY OF THE ARGUMENTS

Point one:    An appellate complaint about a read-back procedure must be

preserved by a comporting trial objection. Appellant lodged a specific objection in


                                        6
the trial court to the judge’s reading back of Johnson’s testimony. None of his

appellate complaints about the read-back process comport with his trial objection.

Absent comportment between his trial objection and appellate contentions,

appellant presents nothing for review.

Point two: The trial judge did not err in denying appellant’s motion to suppress

Reliford’s in-court identification of appellant as the shooter. Even assuming the

pretrial identification procedure was impermissibly suggestive, there is not a very

substantial likelihood that an irreparable misidentification resulted.    Reliford’s

identification of appellant was reliable, despite any impermissibly suggestive

identification procedure, because Reliford had a very good opportunity to view

appellant during the offense and he paid a high level of attention to appellant at

that time.   Furthermore, Reliford was very confident of his identification of

appellant when he viewed the photo array. Also, Reliford’s ability to identify

appellant was not compromised by the passage of time between the murder and the

viewing of the photospread.       It was also very unlikely that Reliford would

mistakenly identify appellant as the shooter since he was familiar with appellant,

having known him as a neighbor for about two months before the commission of

the murder. Finally, Reliford confirmed his in-court identification of appellant was

made based on having observed him at the time of the offense and, therefore, was

independent of the pretrial identification procedure.



                                          7
Point three: By failing to lodge a trial objection, appellant waived any error in the

trial judge’s comment about appellant looking like a thug. Appellant’s reliance on

Blue to excuse his failure to object is misplaced because Blue is a plurality opinion

with no precedential value. Furthermore, Blue is not applicable because the facts

of that case differ significantly from those in this case.

Point four: The trial judge did not err when he personally questioned a venireman

about his ability to follow the law or when he denied appellant’s challenge for

cause against this venireman.       The venireman provided the defense attorney

equivocating answers about his ability to afford appellant a fair trial. In such a

circumstance, a trial judge may personally pose questions to the venireman to

clarify his answers. And once the venireman confirmed that he could follow the

law, the trial judge did not err in denying appellant’s challenge for cause.


                        REPLY TO POINT OF ERROR ONE

      In his first point of error, appellant contends the trial judge failed to properly

interpret and respond to the jurors’ request to have some disputed testimony read

back to them. He maintains this failure resulted in harmful reversible error.

   1. Relevant facts

      During their guilt-innocence deliberations, the jurors asked the judge to

provide them with “all transcripts of the case.” (CR 133). In response, the judge




                                           8
provided the jury with a frequently used Harris County form designed for such

circumstances which reads as follows:

            MEMBERS OF THE JURY:

                   In view of your request for certain testimony, I
            instruct you as follows:

                  “If the jury disagrees as to the statement of any
            witness, they may, upon applying to the Court, have read
            to them from the court reporter’s notes that part of such
            witness’ testimony, or the particular point in dispute, and
            no other.”

                   In accordance with this rule, you are instructed that
            a request to have the court reporter’s notes read cannot be
            complied with unless the jury disagrees as to the
            statement of the witness. Therefore, it will be necessary
            for you to certify that you are in disagreement as to the
            statement of a witness, and you should request that part
            of the witness’ statement or point in dispute and only that
            part or point which is in dispute. Please fill in the form
            below and have your foreman sign the same.

(CR 134).

      The form then asks the jurors to identify the “Name of witness whose

statement is subject to disagreement.” The jurors answered “Tranquena Johnson.”

The form’s second inquiry asks for the identification of the “Lawyer questioning

witness at time of the statement.” The jurors answered “State.” Finally, the form

asks the jurors to identify the “Statement in dispute.” The jurors answered: “With

respect to the people outside [the complainant’s] apartment immediately prior to




                                         9
the shooting, we are in dispute as to the number of people present and the

respective colors of their shirts.” (CR 134).

       Upon receiving this completed form from the jurors, the judge summoned

them to the courtroom and confirmed their disagreement about the identified

testimony. (RR VI 92). The following testimony from Johnson was then read back

to the jurors:

                 Q: Then, what happened?

                 A: And as I was getting them from the car, the defendant
                 ran past me.

                 Q: What did you notice about him, as he ran by?

                 A: I noticed him because of me seeing him prior. And
                 there’s nothing specific that I noticed. What he was
                 wearing and that, you know, I had seen him before.

                 Q: What was he wearing?

                 A: A black T-shirt. I don’t really remember shoes or
                 anything like that.

                                    * * * * *

                 Q: So there were four people total that you saw outside
                 that apartment?

                 A: Yes.
                                    * * * * *

                 Q: And as you’re looking there, how many people can
                 you see standing there arguing?

                 A: Four.

                                           10
(RR VI 93). This read-back testimony was compiled by gathering three different

portions from Johnson’s testimony. Two excerpts are found in her direct testimony,

while the third was taken from her testimony on cross-examination. (RR IV 158,

165, 184).

      After this testimony was read back to the jurors, they retired for further

deliberations. (RR VI 93). None of the jurors expressed any dissatisfaction with

the selection of read-back testimony. After the jury left the courtroom, appellant’s

attorney made the following objection to the read-back process: “What I wanted to

object to was I wanted there to be the inclusion of any testimony and not just in

direct, but to also add anything from cross and any type of redirect, any issue under

the cross-examination or direct of Trancquena Johnson relating to the number of

people. I ask that it be included in its entirety.” (RR VI 94). Defense counsel then

stated, and the judge agreed, that counsel had made this same objection before the

read-back and that the judge had overruled it. (RR VI 94).

   2. Argument and authority

   2.1 Applicable law

      If jurors disagree about the testimony of any witness, the jury may ask the

trial court to “have read to them from the court reporter’s notes that part of such

witness testimony or the particular point in dispute, and no other…” TEX. CODE

CRIM. PROC. ANN. art. 36.28 (West 2006); Arnold v. State, 234 S.W.3d 664, 676

                                         11
(Tex. App.--Houston [14th Dist.] 2007, no pet.). After determining that the jurors

dispute a portion of testimony, the trial judge must strike a balance between

reading too much or too little testimony in response to the jury’s request. Arnold,

234 S.W.3d at 676. A trial judge’s ruling under article 36.28 should not be

disturbed on appeal unless a clear abuse of discretion and harm is shown. Howell

v. State, 175 S.W.3d 786, 792 (Tex. Crim. App. 2005).

  2.2 Appellant’s specific contentions

      On appeal, appellant raises a number of complaints about the trial judge’s

handling of the read-back procedure.          First, appellant complains about the

boilerplate form that the judge provided the jurors. (CR 134). He claims it is

misleading because it requires the jury to narrow its request to the testimony of a

single witness under examination by a single lawyer. (appellant’s brief, p. 13). He

maintains that article 36.28 does not require such a request be limited to a single

witness’s testimony or a single lawyer’s examination. (appellant’s brief, p. 16).

      Second, appellant contends the trial court’s read-back provided the jury with

an incomplete portion of testimony. (appellant’s brief, p. 13). Appellant argues the

judge should have responded to the jury’s request by providing them with

Reliford’s testimony about the number of people present near the complainant’s

apartment at the time of the shooting. (appellant’s brief, p. 18; RR V 195).

Appellant further argues that the judge should have read back a portion of



                                         12
Johnson’s testimony on cross-examination describing the clothing of some of the

people present. (appellant’s brief, p. 19; RR IV 184-185).

      Third, appellant claims the judge’s read-back exceeded the scope of the

jury’s request because it included Johnson’s testimony about appellant running past

her. (appellant’s brief, p. 19; RR IV 165). Appellant argues this testimony was

irrelevant to the requested description of the parties.

  2.3 Preservation

      It is well established that complaints about error in the reading back of

testimony pursuant to article 36.28 must be preserved by objection at the time of

the reading. Hollins v. State, 805 S.W.2d 475, 476 (Tex. Crim. App. 1991); Heller

v. State, 279 S.W.3d 823, 825 (Tex. App.--Amarillo 2008, no pet.); May v. State,

139 S.W.3d 93, 100 (Tex. App.--Texarkana 2004, pet. ref’d); Geisberg v. State, 945

S.W.2d 120, 125 (Tex. App.--Houston [1st Dist.] 1996), aff’d, 984 S.W.2d 245

(Tex. Crim. App. 1998). The purpose of a timely objection is to give the trial judge

the opportunity to cure the error. Hollins, 805 S.W.2d at 476; Schuster v. State, 435

S.W.3d 362, 366 (Tex. App.--Houston [1st Dist.] 2014, no pet.).

      Furthermore, the point of error on appeal must comport with the objection

made at trial. Yazdchi v. State, 428 S.W.3d 831, 844 (Tex. Crim. App. 2014). An

objection based on one legal theory in the trial court may not be used to support a

different theory on appeal. Wright v. State, 374 S.W.3d 564, 575 (Tex. App.--



                                          13
Houston [14th Dist.] 2012, pet. ref’d). The reason for requiring the trial objection

to comport with the appellate complaint is to give the trial judge the opportunity to

rule on the particular legal theory advanced by the defendant. Runnels v. State, 193

S.W.3d 105, 108 (Tex. App.--Houston [1st Dist.] 2006, no pet.).           When the

appellate complaint fails to comport with the trial objection, nothing is preserved

for review. Id. This comportment requirement applies to read-back issues raised

under article 36.28. Neal v. State, 108 S.W.3d 577, 579 n.2 (Tex. App.--Amarillo

2003, no pet.).

      Appellant’s trial objection to the read-back procedure was very specific. He

argued that the read-back of Johnson’s testimony should have been expanded to

include any testimony by Johnson on cross-examination or redirect examination

“relating to the number of people.” (RR VI 94). At the trial level, appellant made

none of the complaints he makes on appeal. At trial, appellant did not complain

about the nature of the boilerplate read-back form itself. He did not request that

Reliford’s testimony about the number of people present at the complainant’s

apartment be read back. He did not request the reading of Johnson’s testimony on

cross-examination describing the clothing of the people present.        Nor did he

complain that the read-back exceeded the scope of the jury’s request. Furthermore,

on appeal, appellant does not complain of the matter he raised in his trial objection




                                         14
(i.e., failing to provide Johnson’s cross-examination and redirect testimony about

the number of people present).

      Accordingly, appellant’s appellate contentions fail to comport with his trial

objection. As such, he presents nothing for review. Point of error one is meritless

and should be overruled.


                       REPLY TO POINT OF ERROR TWO

      In his second point of error, appellant contends the trial judge erred by

denying his motion to suppress Reliford’s in-court identification of him. (CR 114;

RR V 168-169, 174-175, 189-190; RR VI 12). Appellant maintains that Reliford’s

in-court identification of him was tainted by a impermissibly suggestive pretrial

identification procedure.

   1. Relevant facts

      After appellant became a suspect in the murder, Sergeant Jon Brooks created

a six-man photo array in which appellant’s photograph occupied the number three

position. (RR IV 12-14; RR VIII – SX 66). He showed the photospread to Johnson

who identified appellant as the man who shot and killed the complainant. (RR IV

17). The officer instructed Johnson to sign the corresponding number three slot on

the back of the photo array. (RR IV 202-1; RR VIII – SX 67). Two other witnesses

identified appellant, in some capacity, in this photo array and also signed the

number three slot below Johnson’s signature. (RR IV 26, 29-30; RR VIII – SX 67).


                                        15
      Thereafter, Reliford looked at the photo array and identified appellant in the

number three position. (RR IV 35-36). Sergeant Brooks described Reliford’s

pretrial identification as follows: “He said that’s Red, that’s the person that shot the

victim Keith, that he ran past him with the gun in his hand and he looked right at

him and he was positive that Red was the person that shot and killed Keith.” (RR

IV 36). After he identified appellant, Reliford signed the photo array below the

other three signatures. (RR VIII – SX 67).

      At the suppression hearing, Sergeant Brooks allowed that permitting

Reliford to see the other three signatures attached to the number three position after

he identified appellant in the photo array could have served as some measure of

confirmation to Reliford of his previously made identification of appellant in the

number three position. (RR IV 56-59).

   2. Standard of review

      A trial judge’s ruling on a suppression motion is reviewed under a bifurcated

standard of review. Lyssy v. State, 429 S.W.3d 37, 42 (Tex. App.--Houston [1st

Dist.] 2014, no pet.). While an appellate court shows almost total deference to the

trial judge’s determinations of historical fact, it reviews the trial judge’s application

of the law to the facts de novo. Id. The trial judge’s ruling will be upheld on

appeal if the ruling is reasonably supported by the record and is correct on any

theory of law applicable to the case, even if the trial judge gave the wrong reason



                                           16
for his ruling. Id.; Miller v. State, 312 S.W.3d 162, 165 (Tex. App.--Fort Worth

2010, no pet.).

      An appellate court reviews de novo the question of whether a pretrial

identification procedure amounted to a denial of due process. Mendoza v. State,

443 S.W.3d 360, 363 (Tex. App.--Houston [14th Dist.] 2014, no pet.).              The

defendant bears the burden of showing by clear and convincing evidence that the

procedure was impermissibly suggestive. Mims v. State, 434 S.W.3d 265, 272

(Tex. App.--Houston [1st Dist.] 2014, no pet.).

   3. Argument and authority

      A pretrial identification procedure may be so suggestive and conducive to

mistaken identification that subsequent use of that identification at trial would deny

the accused due process of law. Barley v. State, 906 S.W.2d 27, 32-33 (Tex. Crim.

App. 1995); Mendoza, 443 S.W.3d at 363. Appellate courts use a two-step analysis

to determine the admissibility of an in-court identification: (1) whether the out-of-

court identification procedure was impermissibly suggestive; and (2) whether that

suggestive procedure gave rise to a very substantial likelihood of irreparable

misidentification. Barley, 906 S.W.2d at 33. This analysis requires an examination

of the totality of the circumstances surrounding the particular case and

determination of the reliability of the identification. Id.




                                           17
      Regarding the first step of the analysis, there is some indication that

providing a witness such as Reliford the opportunity to learn that other witnesses

have identified the same person in a photo array may be impermissibly suggestive.

Garcia v. State, No. 14-06-00570-CR, 2007 WL 2447301, at *2 (Tex. App.--

Houston [14th Dist.] Aug. 30, 2007, pet. ref’d) (not designated for publication)

(and cases cited therein). However, assuming appellant satisfied the first step, he

cannot satisfy the second.

      The second step requires an appellate court to determine whether a very

substantial likelihood for irreparable misidentification was created by the

suggestive procedure. Barley, 906 S.W.2d at 34. Reliability is the linchpin in

determining the admissibility of such identification testimony. Id. If indicia of

reliability outweigh suggestiveness, an identification is admissible. Id. To obtain a

reversal, a defendant must show by clear and convincing evidence that the

identification has been irreparably tainted. Id.

      In determining whether there is a very substantial likelihood for irreparable

misidentification, an appellate court considers the following five non-exclusive

factors: (1) the witness’s opportunity to view the criminal act; (2) the witness’s

degree of attention; (3) the accuracy of the suspect’s description; (4) the level of

certainty at the time of confrontation; and (5) the time between the crime and the

confrontation. Barley, 906 S.W.2d at 34-35.



                                          18
        Regarding the first and second factors, Reliford had a good opportunity to

view appellant during the criminal act and he focused a high level of attention on

appellant at the time of murder. On the day of the murder, Reliford saw appellant

arguing with his girlfriend and with the complainant several different times

throughout the day. (RR V 144-147, 176-180). Later that night, right before the

murder, Reliford went outside his apartment and saw appellant standing on the

stairway arguing with his girlfriend. (RR V 147-148).        Reliford focused his

attention on appellant because of his fight with his girlfriend. (RR V 149).

Appellant was facing Reliford. (RR V 148). Reliford confirmed he got “a good

look” at appellant. (RR V 148). He recognized appellant since appellant lived

above him. (RR V 141-142). Reliford had met appellant about two months before

the date of the murder. (RR V 144, 172-175). During this two-month period,

Reliford had often seen appellant “going and coming” and had had conversations

with appellant. (RR V 207-208).

        Following appellant’s argument with his girlfriend, Reliford watched

appellant walk down the sidewalk toward the complainant’s apartment. (RR V

149).     He saw appellant knock on the complainant’s door and shoot the

complainant once he emerged. (RR V 149). Reliford stated that appellant’s back

was turned when he fired the gunshots, but he explained that he did not lose sight

of appellant from the time he walked down the stairs until he reached the



                                        19
complainant’s apartment. (RR V 150). Following the shooting, Reliford continued

to keep his eye on appellant, without losing sight of him, as appellant ran past him

with a gun in his hand. (RR V 150). Reliford looked at appellant as he ran past

him. (RR V 195).

      Given the totality of these circumstances, Reliford had an excellent

opportunity to view appellant before, during, and after the murder. The record also

demonstrates that Reliford focused a very high degree of attention on appellant

during the murder, as well as immediately before and after the murder. As such,

the first two factors militate in finding that any impermissibly suggestive

identification procedure did not give rise to a very substantial likelihood of

irreparable misidentification.

      Regarding the third factor, Reliford did not provide a statement on the night

of the offense; he did not talk to the police until about a month later. (RR V 160,

196-198).    So, it appears he did not provide a description of the suspect.

Accordingly, this factor is neutral.

      The fourth factor examines the level of certainty demonstrated by the

witness at the time of confrontation. When Reliford looked at the photo array he

told Sergeant Brooks: “… that’s Red, that’s the person that shot the victim Keith,

that he ran past him with the gun in his hand and he looked right at him and he was

positive that Red was the person that shot and killed Keith.” (RR IV 35-36).



                                        20
Appellant’s expressed high level of certainty would be expected since he had

known appellant for about two months at the time of the murder and he focused

intently on appellant during the murder’s commission. Given the confident nature

of Reliford’s identification of appellant to Sergeant Brooks, this factor favors the

admissibility of Reliford’s in-court identification.

      The fifth factor considers the time between the crime and the confrontation.

About one month separated the commission of the offense from the identification

procedure. (RR V 176, 197-198). Given Reliford’s pre-existing familiarity and

acquaintance with appellant, coupled with his intent focus on appellant during the

commission of the murder, this passage of time did not diminish Reliford’s ability

to accurately identify appellant. Barley, 906 S.W.2d at 35 (twelve-month delay did

affect witnesses’ recollection or identification of suspect). Accordingly, this factor

also favors the admissibility of Reliford’s identification of appellant.

      In addition to these five non-exclusive factors, there are additional

circumstances indicating that the suggestive procedure, if any, did not create a very

substantial likelihood of irreparable misidentification. For example, Reliford and

appellant had been neighbors for about two months before the murder. (RR V 141-

144, 172-175). During this two-month period, Reliford had often seen appellant

“going and coming” and had had conversations with appellant. (RR V 207-208).

Since Reliford knew appellant before the offense, the possibility of



                                          21
misidentification was minimal. Jenkins v. State, 912 S.W.2d 793, 808-09 (Tex.

Crim. App. 1993) (opin. on reh’g).

      Furthermore, it is well settled that even when a pretrial identification

procedure is impermissibly suggestive, in-court testimony of an identification

witness will still be admissible as long as the record clearly reveals that the

witness’s prior observation of the accused was sufficient to serve as an independent

origin for the in-court identification. Lesso v. State, 295 S.W.3d 16, 25 (Tex. App.-

-Houston [1st Dist.] 2009, pet. ref’d).       Reliford testified that his in-court

identification was based on having observed appellant kill the complainant. (RR V

155-156). Reliford’s confirmation that his in-court identification was independent

of the photo array is to be expected since he knew appellant before the shooting, he

intently watched appellant during the shooting, and he identified appellant in the

photo array before he was exposed to any suggestiveness resulting from his

subsequently being shown the signatures of the other witnesses who identified

appellant in the photo array.

      Considering this collection of factors and circumstances, appellant has failed

to show by clear and convincing evidence that Reliford’s in-court identification

was irreparably tainted by a suggestive identification procedure. As such, the trial

judge did not abuse his discretion by denying appellant’s motion to suppress. Point

of error two is meritless and should be overruled.



                                         22
                       REPLY TO POINT OF ERROR THREE

      In his third point of error, appellant contends the trial judge erred during voir

dire by agreeing with a venireperson who said appellant looked like a thug. (RR II

133). Appellant argues the judge’s comment violated his presumption of innocence

and deprived him of an impartial jury.

   1. Relevant facts

      Near the conclusion of his voir dire examination of the venire panel, defense

counsel asked the veniremembers whether there was anything that would prevent

them from holding the State to its burden of proof and affording appellant a fair

trial, such as appellant’s appearance. (RR II 130-131). Juror number 25, Daryl

Taylor, stated that he probably could not give appellant a fair trial. (RR II 132-

133). When asked if he would hold the State to its burden of proof, Taylor replied,

“No, I would hold the State to their burden, but I don’t think I could give him a fair

trial.” (RR II 132). Defense counsel posed no further questions to this potential

juror. (RR II 132).

      After defense counsel concluded his examination of the venire panel, the

judge excused the veniremembers from the courtroom, with the exception of

Taylor. Taylor approached the bench and the following exchange occurred:

             Judge: You said based on his looks you could not give
             him a fair trial?

             Taylor: Yes, sir.

                                         23
             Judge: But you also said that you could follow the law
             and you said you would hold the State to its burden of
             proof of beyond a reasonable doubt?

             Taylor: Yes. Just based on his looks alone, he looks like
             a thug.

             Judge: That’s fine. I don’t disagree with that. In fact, I
             agree with that. The question is, can you follow the law
             and hold the State to its burden of proof and listen to the
             evidence?

             Taylor: Yes, I can.

             Judge: That’s all we need to know, sir. I appreciate your
             time.

(RR II 133-134). Following a discussion at the bench, the judge announced, “All

right. He’s in.” (RR II 134).

   2. Argument and authority

      As mentioned, appellant claims the trial judge erred by referring to him as a

“thug.” Ordinarily, a complaint regarding an improper judicial comment must be

preserved at trial by a timely objection. Unkart v. State, 400 S.W.3d 94, 99 (Tex.

Crim. App. 2013); Tex. R. App. P. 33.1. Appellant failed to object when the judge

agreed with the venireman’s observation that appellant looked like a thug. (RR II

133-134). Absent a timely objection, appellant presents nothing for review and his

point of error should be overruled.




                                         24
      Nevertheless, appellant argues that a judge’s comment that taints the

accused’s presumption of innocence amounts to fundamental error that requires no

preserving objection. In support of this claim, appellant relies on Blue v. State, 41

S.W.3d 129 (Tex. Crim. App. 2000).

      The trial judge in Blue, at the beginning of the voir dire process, apologized

to the group of prospective jurors for a long delay, telling them that the defendant

was still deciding whether to accept the State’s plea offer or go to trial. Blue, 41

S.W.3d at 130. The judge also told the group of potential jurors, “I prefer the

defendant to plead,” and “[We] were all trying to work toward that and save you

time and cost of time.” Id. The defendant did not object to any of the judge’s

comments. Id.

      On appeal, the defendant argued that no objection is required when the trial

judge makes a fundamentally erroneous statement. Id. A plurality of the court of

criminal appeals ruled that the judge’s comments tainted the defendant’s

presumption of innocence in front of the venire. Id. at 132. The plurality further

held that such comments amounted to fundamental error of constitutional

dimension and required no objection. Id.

      In a concurring opinion, Judge Keasler stated that the trial judge’s comments

were so egregious as to demonstrate a lack of impartiality. Blue, 41 S.W.3d at 138

(Keasler, J., concurring). Judge Keasler then concluded that a violation of the right



                                         25
to an impartial judge is a structural error that cannot be forfeited by the failure to

object. Id. at 138-39.

      Given the plurality status of the Blue opinion, its precedential value has been

called into question over the years. Unkart, 400 S.W.3d at 99-100. The court of

criminal appeals recently addressed this issue and ruled that “the Blue opinion has

no precedential value”:

             With respect to Blue, it is not possible to ascertain a
             majority holding or the narrowest ground or rule that
             commands a majority of the court. The rationales of the
             plurality and concurring opinions are entirely disparate:
             they did not even focus on the same error, much less give
             the same reason why it was error. The plurality focused
             on the effect of the trial judge’s comments on the jury,
             while Judge Keasler considered the comments merely as
             evidence that the trial judge was biased.

Unkart, 400 S.W.3d at 101. While stripping Blue of any precedential value, the

court did hold that the opinions in the Blue case nevertheless may be considered

for any persuasive value they may have, in the same way as any other opinion that

does not command a majority of the court, such as a concurring opinion. Id.

Therefore, to the extent that appellant relies on Blue to excuse his failure to object

for preservation purposes, his claim is not supported by controlling authority.

      Moreover, whatever persuasive value this Court may attach to the Blue

opinions, they do not warrant a reversal in appellant’s case because the

circumstances in his case significantly differ from those in Blue. See Unkart, 400



                                         26
S.W.3d at 101-02. First, the Blue plurality focused on the effect of the trial judge’s

comments on the jury. Id. at 101. In Blue, the judge made his comments to the

venire at the outset of the voir dire process. Blue, 41 S.W.3d at 130. As such, the

particular veniremembers who were ultimately placed on the jury heard the judge’s

comments vitiating Blue’s presumption of innocence. In other words, the actual

jurors were tainted by the judge’s comments.

        In contrast, the judge in appellant’s case made the complained-of comment

only to juror number 25. The record reflects that the judge excused the venire with

the exception of Taylor (prospective juror number 25). (RR II 133). Taylor then

approached the bench where the complained-of discussion occurred in which the

judge agreed with Taylor’s assessment that appellant looked like a thug. (RR II

133).

        Accordingly, unlike the situation in Blue, the judge made the complained-of

comment to a single veniremember. And this veniremember, Taylor, did not serve

on the jury. (RR II 139-142). As such, the judge’s comment did not reach any of

the jurors, meaning appellant’s jury was no affected in any manner by the judge’s

comment. This distinction is critical since the Blue “plurality focused on the effect

of the trial judge’s comment on the jury.” Unkart, 400 S.W.3d at 101. Since the

judge’s comments had no effect on the actual jurors, the Blue plurality does not




                                         27
support a finding of fundamental error nor does it excuse the absence of an

objection for preservation purposes.

      Second, appellant can find no relief in Judge Keasler’s concurring Blue

opinion either.    Judge Keasler focused on his determination that the judge’s

comments revealed that he was biased against appellant, thereby depriving Blue of

his right to an impartial judge. Blue, 41 S.W.3d at 138-39 (Keasler, J., concurring);

Unkart, 400 S.W.3d at 101. Judge Keasler stated this deprivation was an absolute

systemic error which required no objection. Blue, 41 S.W.3d at 138-39 (Keasler,

J., concurring).

      Unlike the judge’s comments in Blue, the judge’s comment in this case does

not reveal a judicial bias against appellant.       While the judge did agree that

appellant looked like a thug, the judge also subsequently stated that he himself

would “look like a thug, too” if he were to take off his shirt and roll up his sleeves.1

(RR II 139). The judge’s inclusion of himself in the category of people who look

like a thug strongly indicates that he would not hold a bias against appellant for

simply looking like a thug. It would seem unlikely that a judge would hold an

accused in less esteem for having a quality which was shared by the judge himself.




1
        The judge’s comment is very likely a reference to his many tattoos.
http://www.chron.com/news/houston-texas/article/New-judge-says-his-former-addiction-can-
help-1540561.php (news article describing a depicting the judge’s tattoos).



                                          28
      Under these circumstances, the record does not demonstrate a biased judge.

As such, unlike the facts in Blue, appellant was not denied his right to an impartial

judge. Therefore, there was no structural error to excuse appellant’s failure to

object. An objection was required to preserve any error.

      A third distinction (related to the second one above) lies in the attitudes

expressed by the respective judges.         In Blue, the judge’s remarks were an

expression of exasperation and impatience with how the defendant was exercising

his rights.   Unkart, 400 S.W.3d at 101 (distinguishing Blue on the different

attitudes expressed by judges). Blue’s trial judge essentially faulted the defendant

for failing to quickly give up his right to a jury trial and accept a plea offer. Id. By

contrast, appellant’s judge expressed no discontent with appellant whatsoever and

certainly did not criticize him for exercising any of his rights.

      Fourth, the trial judge in Blue conveyed information about the case that the

jurors would not have otherwise known. Id. Here, the judge simply agreed with

an observation made by Taylor (who was not a juror). In other words, appellant’s

judge conveyed a belief to Taylor that Taylor already held.

      Fifth, the trial judge in Blue told the jurors what he preferred the defendant

to do, but the trial judge’s comment in this case does not. Id. Blue’s judge

expressly informed the jurors that he preferred that Blue accept the State’s plea




                                          29
offer. Id. In the instant case, the trial judge did not express any unfulfilled

expectations he held for appellant.

      These various factors demonstrate that the instant case is very different from

Blue. Most importantly, the factors that were deemed critical in the Blue opinions

(i.e., a biased judge and a jury tainted by the judge’s vitiation of Blue’s

presumption of innocence) do not exist in this case.        Based on these critical

distinctions, Blue has no bearing on appellant’s case, even as persuasive authority.

      Absent a biased judge or the vitiation of appellant’s presumption of

innocence, there was no fundamental or structural error. Absent this type of error,

appellant was required to object to preserve any error. See Unkart, 400 S.W.3d at

102. Having failed to object, appellant presents nothing for review.

      For similar reasons, appellant suffered no harm from the judge’s comment.

Tex. R. App. P. 44.2.     As mentioned, the remark was conveyed to a single

venireman who did not serve on the jury. So, even assuming the comment vitiated

appellant’s presumption of innocence, the judge’s comment did not reach any of

the jurors. As such, appellant’s presumption of innocence remained untarnished

and intact before the jury. Also, as mentioned, the complained-of comment, in the

context of the judge’s other thug-related comments, did not reveal a biased judge.

Therefore, there was no harm.

      Point of error three is meritless and should be overruled.



                                         30
                      REPLY TO POINT OF ERROR FOUR

      In his fourth point of error, appellant contends the trial judge erred by

denying his challenge for cause against juror number 25. (RR II 137). Appellant

maintains this venireman was biased and prejudiced against him as demonstrated

by this venireman’s comments that appellant looked like a thug and he could not

give appellant a fair trial (i.e., the comments discussed in the previous point of

error). (RR II 132-134). Appellant also claims the trial judge erred by attempting

to rehabilitate the venireman.

   1. Burdens and the standard of review

      A veniremember is challengeable for cause if he has a bias or prejudice

against the defendant or against the law upon which either the State or the defense

is entitled to rely. Gardner v. State, 306 S.W.3d 274, 295 (Tex. Crim. App. 2009).

The test is whether the bias or prejudice would substantially impair the prospective

juror’s ability to carry out his oath and instructions in accordance with the law. Id.

Before a prospective juror may be excused for cause on this basis, the law must be

explained to him, and he must be asked whether he can follow the law, regardless

of his personal views. Id.

      The proponent of the challenge for cause has the burden of establishing that

the challenge is proper. Id. The proponent does not meet this burden until he has

shown that the veniremember understood the requirements of the law and could


                                         31
not overcome his prejudice well enough to follow the law. Id. When the record

reflects that a veniremember vacillated or equivocated on his ability to follow the

law, the reviewing court must defer to the trial judge’s ruling. Id.

      An appellate court reviews a trial judge’s ruling on a challenge for cause

with considerable deference because the trial judge is in the best position to

evaluate a veniremember’s demeanor and responses. Id. at 295-96. A trial judge’s

ruling on a challenge for cause may be reversed only for a clear abuse of

discretion.   Id. at 296.      When a veniremember’s answers are ambiguous,

vacillating, unclear, or contradictory, an appellate court affords particular deference

to the trial judge’s decision. Id.

   2. Relevant facts

      During voir dire examination, the defense attorney told the veniremembers

that appellant was presumed innocent and then asked whether any of them were

unable to afford appellant that presumption. (RR II 131-132). The following

exchange then occurred between defense counsel and juror number 25:

              Q: Juror No. 25, you think you couldn’t give him a 100
              percent fair trial?

              A: Probably not.
              Q: Would you not hold the State to their burden of
              proof?

              A: No, I would hold the State to their burden, but I don’t
              think I could give him a fair trial.



                                          32
 (RR II 132). Defense counsel posed no further questions to this venireman and

the venireman made no further comments during defense counsel’s voir dire

examination. (RR II 132-133).

      After defense counsel concluded his examination of the venire panel, the

judge excused all the veniremembers except for juror number 25. (RR II 133). The

judge asked this venireman, Taylor, to approach the bench where the following

exchange occurred:

             Judge: You said based on his looks you could not give
             him a fair trial?

             Taylor: Yes, sir.

             Judge: But you also said that you could follow the law
             and you said you would hold the State to its burden of
             proof of beyond a reasonable doubt?

             Taylor: Yes. Just based on his looks alone, he looks like
             a thug.

             Judge: That’s fine. I don’t disagree with that. In fact, I
             agree with that. The question is, can you follow the law
             and hold the State to its burden of proof and listen to the
             evidence?

             Taylor: Yes, I can.

             Judge: That’s all we need to know, sir. I appreciate your
             time.

(RR II 133-134). Following a discussion at the bench, the judge announced, “All

right. He’s in.” (RR II 134).



                                         33
   3. Argument and authority

      As mentioned, appellant argues the trial judge should have granted his

challenge for cause against juror number 25 because he expressed a bias and

prejudice against appellant and said he could not give appellant a fair trial.

Appellant also claims the judge erred by questioning and rehabilitating the

venireman.

      As a preliminary matter, appellant failed to lodge a timely objection when

the judge questioned the venireman about his ability to follow the law. (RR II 133-

134). By failing to timely object, appellant waived any complaint about the trial

judge personally posing these questions to the venireman. Tex. R. App. P. 33.1.

To preserve for appellate review a complaint about a trial judge personally

questioning a prospective juror, a defendant must raise a timely objection in the

trial court. Woodal v. State, 350 S.W.3d 691, 695 (Tex. App.--Amarillo 2011, no

pet.). Absent a timely objection, appellant waived any complaint about the trial

judge questioning the venireman.

      Moreover, even assuming appellant had preserved for review his complaint

about the judge’s participation in questioning the venireman, his complaint would

be meritless. Trial judges are not prohibited from intervening in the examination

of a prospective juror; the trial judge’s discretion will be abused only when a

judge’s comments are reasonably calculated to benefit the State or prejudice the



                                        34
defendant. Beets v. State, 767 S.W.2d 711, 745 (Tex. Crim. App. 1987); Ford v.

State, 14 S.W.3d 382, 393 (Tex. App.--Houston [14th Dist.] 2000, no pet.).

      A    judge may intervene with his own questions to clarify matters or

determine whether the prospective juror is able to serve as a fair and impartial

juror. Gardner v. State, 733 S.W.2d 195, 210 (Tex. Crim. App. 1987); Woodal, 350

S.W.3d at 695. In particular, a trial judge may question a venireperson in order to

clarify his position if that venireperson has equivocated on his ability to follow the

law. Dillard v. State, No. 14-06-00940-CR, 2007 WL 3342029, at *1 (Tex. App.--

Houston [14th Dist.] Nov.13, 2007, no pet.) (not designated for publication) (citing

Gardner, 733 S.W.2d at 210).         A judge may even attempt to rehabilitate a

venireperson who has expressed an unequivocal position on an issue. Fransaw v.

State, 671 S.W.2d 539, 540 (Tex. App.--Houston [14th Dist.] 1983, pet. ref’d).

      In this case, juror number 25 equivocated each time he responded to the

defense attorney’s question about his ability to give appellant a fair trial. The first

time, the venireman said he “probably” could not give appellant a fair trial. (RR II

132). The second time, he stated, “I don’t think I could give him a fair trial.” (RR

II 132).   Neither answer was definitive; rather, both answers were equivocal.

Perillo v. State, 758 S.W.2d 567, 576 n.10 (Tex. Crim. App. 1988) (an equivocating

venireman is one who fails to take a firm position on an issue, answering, for

example, “I think.”) (citing Williams v. State, 622 S.W.2d 116, 121 (Tex. Crim.



                                          35
App. 1981) (Teague, J., dissenting)); Johnson v. State, No. 05-94-01743-CR, 1996

WL 253345, at *3 (Tex. App.--Dallas May 13, 1996, pet. ref’d, untimely filed) (not

designated for publication).

      Since juror number 25’s answers to the defense attorney failed to convey a

firm position on his ability to give appellant a fair trial, the trial judge was entitled

to follow up with his own questions and clarify the venireman’s equivocal

responses.   In response to the judge’s questions, the venireman confirmed in

certain terms that he could listen to the evidence, follow the law, and hold the State

to its burden of proof. (RR II 133-134). A trial judge does not err in denying a

challenge for cause against a venireperson who can follow the law. Sattiewhite v.

State, 786 S.W.2d 271, 282 (Tex. Crim. App. 1989); Robinson v. State, 989 S.W.2d

456, 461 (Tex. App.--Houston [1st Dist.] 1999, pet. ref’d) (if venireperson testifies

unequivocally as to his ability to follow the law despite personal prejudices, trial

judge does not err in denying challenge for cause; furthermore, even if

venireperson vacillates on ability to follow law, trial judge does not err in denying

challenge for cause).

      Accordingly, since the venireman stated he was able to follow the law, the

trial judge did not abuse his broad discretion in denying appellant’s challenge for

cause. Point of error four is meritless and should be overruled.




                                           36
                                  CONCLUSION

      It is respectfully submitted that all things are regular and the conviction

should be affirmed.

                                                 DEVON ANDERSON
                                                 District Attorney
                                                 Harris County, Texas

                                                 /s/ Dan McCrory
                                                 DAN McCRORY
                                                 Assistant District Attorney
                                                 Harris County, Texas
                                                 1201 Franklin, Suite 600
                                                 Houston, Texas 77002
                                                 (713) 755-5826
                                                 TBC No. 13489950
                                                 mccrory_daniel@dao.hctx.net




                                         37
                         CERTIFICATE OF SERVICE

      This is to certify that a copy of the foregoing instrument has been sent to the

following email address via TexFile:

      Sarah V. Wood
      Attorney at Law
      Sarah.wood@pdo.hctx.net

                                                /s/ Dan McCrory
                                                DAN McCRORY
                                                Assistant District Attorney
                                                Harris County, Texas
                                                1201 Franklin, Suite 600
                                                Houston, Texas 77002
                                                (713) 755-5826
                                                TBC No. 13489950



                      CERTIFICATE OF COMPLIANCE

       The undersigned attorney certifies that this computer-generated document
has a word count of 8,272 words, based upon the representation provided by the
word processing program that was used to create the document.


                                                /s/ Dan McCrory
                                                DAN McCRORY
                                                Assistant District Attorney
                                                Harris County, Texas
                                                1201 Franklin, Suite 600
                                                Houston, Texas 77002
                                                (713) 755-5826
                                                TBC No. 13489950
Date: 3/26/2015



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