Jeffery Barren McKinley A/K/A Jeffery B. McKinley v. State

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH

NO. 02-13-00036-CR

JEFFERY BARREN MCKINLEY APPELLANT
A/K/A JEFFERY B. MCKINLEY

V.

THE STATE OF TEXAS STATE

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FROM THE 372ND DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 1271870D

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MEMORANDUM OPINION1

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I. INTRODUCTION

A jury convicted Appellant Jeffery Barren McKinley a/k/a Jeffery B.

McKinley of sexual assault of a child under age seventeen and assessed his

punishment at eight years’ confinement. See Tex. Penal Code Ann.

§ 22.011(a)(2)(C) (West 2011). The trial court sentenced him accordingly. In

1
See Tex. R. App. P. 47.4.
two points, McKinley complains of the sufficiency of the evidence to support his

conviction and the trial court’s denial of his challenge for cause on prospective

juror number 28. We will affirm.

II. FACTUAL BACKGROUND

A. The Victim’s Testimony

In August 2011, Allison Downs2 was living with her mother in Bedford at

the Gentry’s Walk Apartments. She had recently returned to Bedford after

spending seven months at a juvenile facility in San Antonio. She was on

probation in the fall of 2011 and attended an alternative school.

Allison first saw McKinley when her mentor took her to Stroud’s Fitness in

September 2011 to check out the activity schedule. Allison noticed McKinley,

and he noticed her; they did not, however, have a conversation that day.

The second time that Allison saw McKinley was when she was at Stroud’s

with her friend Nia. Allison saw McKinley leaning on a counter, and they stared

at each other. Allison noticed that McKinley had a badge with “Jeff M.” on it and

concluded that he worked at Stroud’s. McKinley came over and struck up a

conversation with Allison. McKinley ultimately asked Allison for her phone

number and gave her his phone number. The two began texting frequently, but it

was not flirtatious.

2
This pseudonym is used throughout the parties’ briefs and will be used in
this opinion to identify the victim. See 2nd Tex. App. (Fort Worth) Loc. R. 7
(requiring parties to use aliases in documents filed with the court if the court
determines that a person’s identity should be protected).

2
 The next time that Allison saw McKinley was five to seven days later when

she was leaving her apartment to go to her cousin’s apartment to babysit.

McKinley was in a gray Chrysler car driving towards the front entryway of the

apartment complex.3 McKinley stopped and honked the horn. Allison did not

know that it was McKinley until he rolled down the window and she was able to

see him. They realized during this meeting that they lived at the same apartment

complex. While Allison was babysitting, she texted McKinley. He asked when

he could see her, and the two met later that evening by the pool at their

apartment complex.4 McKinley complimented Allison, saying that she was pretty

and that she had a nice shape and size. They talked about their birthdays;

Allison told McKinley that her birthday had just passed and that she had turned

fifteen. McKinley told her that his birthday was in November and that he was

twenty-six, but he also gave two other ages, including that he was nineteen.

When Allison pointed out that he had given her different ages, he said, “Plausible

deniability.” Allison thought that McKinley was older than the ages he gave

because his conversation was mature; he talked about work and family, not

3
In the written statement that she gave to the police, Allison said that this
was when she met McKinley for the first time. Allison explained during cross-
examination that she had started her statement at that point in her story but that
she had testified truthfully about her previous meetings with McKinley.
4
During her direct examination, Allison testified that she met McKinley at
the pool after returning from babysitting at her cousin’s. On cross-examination,
Allison testified that she met McKinley at the pool a few days after meeting him in
the parking lot.

3
school or hanging out.5 McKinley told Allison that he was a personal trainer and

that he helped people get gym memberships. McKinley also told Allison that he

had twin boys who lived in Kentucky with their mom. Their talk at the pool lasted

for ten minutes, and when they were leaving, McKinley kissed Allison on the lips.

After the kiss, he grabbed her waist and told her that she had pretty pink lips and

a pretty smile. McKinley said that he would text Allison later, and then she went

home.

McKinley began texting Allison every morning at 5:00 or 6:00 a.m. before

she had awakened for school. Allison testified that whenever she called

McKinley’s phone number, which she had stored in her phone under

“Consultants S,” McKinley always answered; there was no indication that the

number she used to contact him, which ended in 3760, was not his phone

number. Allison testified that she used the tag line “Baby” or “Peaches Baby” in

her texts to McKinley and that he used the tag line “S.I.G.,” but Allison never

asked what that stood for. Allison sometimes used the nickname “Daddy” for

McKinley; he referred to Allison using the nicknames “Boo,” “Princess,” and

“Gorgeous.”

One morning before school in mid-September, McKinley texted Allison,

“Come over. I’ll fix you breakfast. We can chill.” Allison told her mother that she

was going to school, but she went to McKinley’s apartment for the first time.

5
Allison testified that McKinley did not tell her that he was thirty-six until
later.

4
They talked and watched a movie. While they were watching a movie, McKinley

leaned over and started kissing her and touching her on various parts of her

body. When McKinley took off his clothes, Allison saw that he had an “A”

tattooed on his chest.6 Allison testified that McKinley’s penis contacted her

sexual organ. They had sex two times that morning. Allison stayed at

McKinley’s apartment until the school day was over.

From that day in mid-September through the end of October, Allison went

over to McKinley’s apartment “almost every single day” and had sex with

McKinley approximately fifty times. Sometimes McKinley picked up Allison at a

meeting point after school released at 2:45 p.m., they had sex, and she left his

apartment about 3:30 or 4:00 p.m. But the normal routine was that she arrived at

McKinley’s apartment around 7:15 a.m. and stayed until 9:00 a.m., and then

McKinley drove her to school in the gray Chrysler 300.7

One day when Allison skipped school to go to McKinley’s apartment, her

probation officer went to the school to see her. When Allison’s probation officer

learned that Allison was not at school, the probation officer called Allison’s

6
McKinley’s fiancée also testified that McKinley had a tattoo of an “A” on
his chest.
7
On one occasion, Allison noticed lip gloss in the car and asked McKinley
about it. He told her that the car belonged to a girl named Amanda, whom
Allison did not know, and that the only reason he had anything to do with
Amanda was because they were sharing the car. Allison had also seen women’s
hair supplies and feminine hygiene products in the cabinet under the sink in
McKinley’s apartment, but she never told him that she had seen them.

5
mother. Allison’s mother texted Allison, asking where she was; Allison did not

text her back. Allison’s mother ultimately called McKinley, who was lying on the

bed after having had sex with Allison. Allison told McKinley not to answer, but he

answered the call and turned on the speaker. McKinley told Allison’s mother that

she may have the wrong number and that he was not who she thought he was.

Allison’s mother screamed through the phone, “Well, you sound like a grown man

and my daughter is 15 years old and you have no business associating with her

so I don’t know why your number is in her phone.” McKinley told her that he was

hanging up, and the conversation ended. Allison testified that she was pretty

freaked out but that McKinley was not. She said, “He just looked at me and he

kind of smirked[,] and he was like, ‘[W]ow[.]’” He repeated that she was fifteen8

and said that her age turned him on and that he wanted sex. They had sex, and

she left McKinley’s apartment around 10:00 or 11:00 p.m.

When Allison arrived at her house, her mother, her sisters, most of her

family, and her counselor were there. They confronted Allison about where she

had been and what she had been doing. Allison testified that she knew what she

had been doing was wrong because McKinley was older than her and they

8
Allison confirmed that she had told him that she was fifteen during their
meeting at the pool.

6
“weren’t supposed to be doing what [they] were doing with each other.” She did

not, however, end her relationship with McKinley; she continued to text him.9

Toward the end of their relationship, McKinley started talking to Allison

about modeling and told her that prostitution could pay for modeling school.

Allison testified that McKinley set up three dates for her to go on, but they never

actually went through.10

On October 28, 2011, Allison was arrested at school and was taken to

juvenile detention because she had violated her juvenile probation by truancy.

While Allison was in detention, some police officers came to see her to talk to her

about what went on with McKinley. Allison initially refused to talk to them

because she did not want to get McKinley in trouble. The officers told her that

her mother had retrieved Allison’s phone, had gone through the pictures and

9
One of the text messages retrieved from Allison’s phone and that was
sent from McKinley’s phone number was dated October 27, 2011, at 14:15:55
and stated, “I wanna t[----] u. S.I.G.” At 14:18, a text from McKinley’s phone
number was sent to Allison’s phone number and stated, “I m ready too babe.
S.I.G.” At 14:19:37, Allison texted McKinley, “Okay. Well, I’ll be waiting daddy,”
with the signature line “Mrs. Peaches Baby.” On October 28, 2011, at 9:21 a.m.,
a text was sent from McKinley’s phone number to Allison’s phone number and
stated, “U left your nighty here red n blk lol. Middle of the floor lol. I’ll get it to u
when we hook up tonight to deposit that money ok princess. Ha smells gud
S.I.G.”
10
A text message that was retrieved from Allison’s phone and was sent
from McKinley’s phone number states, “Someone wants to pay for sum Mrs.
Peaches Baby” and gives an address. Allison responded by asking if she could
use McKinley’s apartment. McKinley asked for a time and told her to throw a
small blanket over the place where she was going to have sex with the man who
was willing to pay.

7
texts messages, and was concerned that Allison had been “messing with an

older man.” At that point, Allison decided to speak to the officers. Allison also

gave a written statement11 and initially agreed to go to the hospital, but once she

arrived, she declined a sexual assault exam.

B. McKinley’s Fiancée’s Testimony

In June 2011, McKinley was engaged to Amanda, and they lived together

at the Gentry’s Walk Apartments.12 During that summer, Amanda began having

doubts about whether she would marry McKinley. By September 2011, she was

fighting a lot with McKinley. To cool off, she would leave and go to her mother’s

house. The longest that she stayed at her mother’s house was two or three

days. But even when she did not spend the night at McKinley’s apartment during

September and October 2011, Amanda would drive to his apartment a little

before 8:00 a.m. every day to help him look for a job and to make sure that he

had food because he was not working.13 She would get ready for work at the

11
In the written statement she gave to the police, Allison described in detail
the inside of McKinley’s efficiency apartment. Officer Nunez, who was present
when Detective Ripley executed the search warrant at McKinley’s apartment,
testified that from Allison’s description of the apartment and the furnishings, it
was pretty obvious that she was familiar with the apartment.
12
Amanda testified that McKinley’s apartment was her residence from mid-
September to the end of October 2011, but she did not co-sign on the lease
because she did not want her credit affected if the bills were not paid.
13
McKinley never told Amanda that he had a job at Stroud’s, and she did
not believe that he ever had a job there because she never saw a name tag or a
uniform showing that he worked at Stroud’s. Amanda testified that McKinley did

8
apartment, and then he would drive her to her job. They usually would leave the

apartment around 8 a.m., and she would arrive at work at 8:15 a.m., except for

Wednesdays and Thursdays when they would leave the apartment at 9:30 a.m.

because she did not have to be at work until 10 a.m. Amanda owned her own

car, a silver Chrysler 300, which she allowed McKinley to use during the day

while she was at work. McKinley met Amanda for lunch every day and then

picked her up from work at the end of her work day.

Amanda testified that McKinley had a trip planned at the end of October to

go to Kentucky to see his daughter for her birthday.14 Amanda decided to

retrieve her belongings while McKinley was out of town. Amanda went to

McKinley’s apartment on October 31 and saw that “things were kind of thrown

around the apartment,” and she found documentation showing that a warrant had

been served. Amanda got in touch with McKinley while she was still in the

apartment and told him about the warrant; he said that he had no idea why the

police would have been inside his apartment. Amanda also asked McKinley

about a solid red item of lingerie, which she found in the apartment and did not

belong to her; he said that one of the guys had brought it by to show off to the

rest of the guys and had left it. When she was leaving, Amanda was pulled over

by the police in the parking lot. One of the officers, Sergeant Stillman, told

not have consistent employment, but occasionally he helped a friend who owned
a mattress moving company.
14
Amanda testified that McKinley has twin sons and one daughter.

9
Amanda to contact McKinley immediately and to tell him to call Sergeant Stillman

or Detective Ripley. Amanda contacted McKinley and gave him the officers’

phone numbers.

C. McKinley’s Contact with Police and Arrest

Detective Ripley received a voicemail message on his business work

phone from McKinley on November 1, 2011. Detective Ripley saved the

message to his pocket recorder, and the recording was admitted into evidence.15

McKinley stated that he was in Kentucky and that he would return on

Wednesday. McKinley said that he had a new phone, that he had been receiving

some crazy text messages, and that he hoped the case had nothing to do with

that. McKinley asked Detective Ripley to call him back at his number ending in

3760, but Detective Ripley was not able to get in touch with McKinley. Detective

Ripley was informed on February 21, 2012, that McKinley had been arrested in

Toledo, Ohio, on the warrant from Bedford.

III. SUFFICIENCY OF THE EVIDENCE

In his first point, McKinley argues that insufficient evidence exists to

support his conviction for the offense of sexual assault of a child under

seventeen years of age because Allison was not credible, Allison’s testimony

was inconsistent regarding when McKinley and Allison were alone for the first

time, there was a discrepancy between the timetable Allison gave of her morning

15
Amanda recognized McKinley’s voice on the recording of the message.

10
visits to McKinley’s apartment and the timetable his fiancée gave regarding when

she left his apartment each morning, and there was no evidence that McKinley

was the actual sender and recipient of the texts and calls to and from Allison.

In our due-process review of the sufficiency of the evidence to support a

conviction, we view all of the evidence in the light most favorable to the verdict to

determine whether any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.

307, 319, 99 S. Ct. 2781, 2789 (1979); Winfrey v. State, 393 S.W.3d 763, 768

(Tex. Crim. App. 2013). This standard gives full play to the responsibility of the

trier of fact 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, 99 S. Ct. at 2789; Blackman v. State, 350 S.W.3d 588, 595 (Tex. Crim.

App. 2011). The trier of fact is the sole judge of the weight and credibility of the

evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Winfrey, 393

S.W.3d at 768. Thus, when performing an evidentiary sufficiency review, we

may not re-evaluate the weight and credibility of the evidence and substitute our

judgment for that of the factfinder. Isassi v. State, 330 S.W.3d 633, 638 (Tex.

Crim. App. 2010). Instead, we determine whether the necessary inferences are

reasonable based upon the cumulative force of the evidence when viewed in the

light most favorable to the verdict. Sorrells v. State, 343 S.W.3d 152, 155 (Tex.

Crim. App. 2011); see Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App.

2013). We must presume that the factfinder resolved any conflicting inferences

11
in favor of the verdict and defer to that resolution. Jackson, 443 U.S. at 326, 99

S. Ct. at 2793; Temple, 390 S.W.3d at 360.

A person commits the offense of sexual assault of a child younger than

seventeen years of age if the person intentionally or knowingly causes the sexual

organ of a child to contact or penetrate the sexual organ of another person,

including the actor. Tex. Penal Code Ann. § 22.011(a)(2)(C). “Child” means a

person younger than seventeen years of age. Id. § 22.011(c)(1).

Allison testified that McKinley’s penis contacted her sexual organ. Allison

also testified that she and McKinley had sex almost every day from mid-

September to the end of October and that she was fifteen years old during that

time period. Allison’s testimony is thus sufficient to establish the elements of the

offense of sexual assault for which the jury found McKinley guilty. See Garcia v.

State, 563 S.W.2d 925, 928 (Tex. Crim. App. [Panel Op.] 1978) (holding

testimony of complainant regarding sexual offense was sufficient, standing

alone); see also Tex. Code Crim. Proc. Ann. art. 38.07 (West Supp. 2014)

(providing that convictions for sexual offenses are supportable on the

uncorroborated testimony of a child victim under seventeen years of age).

Evidence also showed that McKinley was frequently home during the day due to

sporadic employment; that Allison was tardy or had unexcused absences from

September 12 to October 28, 2011; and that numerous text messages were sent

from the phone number attributed to McKinley to Allison’s phone number and to

Amanda’s phone number within short periods of time, during which McKinley

12
could have coordinated his meetings with Allison so that they would not interfere

with Amanda’s visits to the apartment.

Although McKinley attacks Allison’s credibility based on her prior juvenile

history, the inconsistencies in her testimony regarding the day that she met

McKinley at the pool, and the discrepancies between her testimony regarding the

time of her daily arrivals at his apartment and Amanda’s testimony that she was

present in McKinley’s efficiency apartment every morning at the same time, the

jury was the sole judge of the weight and credibility of the evidence, and we

presume the jury resolved any conflicts in favor of the verdict. See Jackson, 443

U.S. at 326, 99 S. Ct. at 2793; Temple, 390 S.W.3d at 360; see also Tex. Code

Crim. Proc. Ann. art. 38.04; Winfrey, 393 S.W.3d at 768. And though Detective

Ripley and the investigators who examined Allison’s phone testified that there

was no way to prove that McKinley was the person who had sent the text

messages to Allison, the jury was free to draw reasonable inferences from basic

facts to ultimate facts and conclude that McKinley was the person texting Allison.

See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Blackman, 350 S.W.3d at 595.

Viewing the evidence in the light most favorable to the jury’s verdict, we

hold that a rational trier of fact could have found beyond a reasonable doubt that

McKinley committed sexual assault of Allison by intentionally or knowingly

causing her sexual organ to contact or penetrate his sexual organ.

Consequently, we hold that the evidence is sufficient to support McKinley’s

conviction, and we overrule McKinley’s first point. See Jackson, 443 U.S. at 326,

13
99 S. Ct. at 2793; Campbell v. State, No. 11-08-00202-CR, 2010 WL 2004563,

at *6–7 (Tex. App.—Eastland May 20, 2010, pet. ref’d) (mem. op., not designated

for publication) (holding evidence sufficient to support appellant’s conviction for

sexual assault of a child younger than seventeen even though there were

conflicts in victim’s testimony and appellant and his wife claimed that appellant

had erectile dysfunction; victim testified consistently regarding where sexual

assault occurred and provided details of appellant’s bedroom that were

consistent with what investigating deputy found). We overrule McKinley’s first

point.

IV. CHALLENGE FOR CAUSE

In his second point, McKinley argues that the trial court abused its

discretion by denying his challenge for cause on prospective juror number 28 and

that this resulted in harm to McKinley.

We review a trial court’s ruling on a challenge for cause with considerable

deference because the trial court is in the best position to evaluate a prospective

juror’s demeanor and responses. Gardner v. State, 306 S.W.3d 274, 295–96

(Tex. Crim. App. 2009), cert. denied, 131 S. Ct. 103 (2010); Saldano v. State,

232 S.W.3d 77, 91 (Tex. Crim. App. 2007), cert. denied, 552 U.S. 1232 (2008).

We will reverse a trial court’s ruling on a challenge for cause only for a clear

abuse of discretion. Gardner, 306 S.W.3d at 296. When a prospective juror’s

answers are ambiguous, vacillating, unclear, or contradictory, we give particular

deference to the trial court’s decision. Id.

14
 A prospective juror is challengeable for cause if he or she “has a bias or

prejudice in favor of or against the defendant.” Tex. Code Crim. Proc. Ann. art.

35.16(a)(9) (West 2006). 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. Gardner, 306 S.W.3d at 295;

Swearingen v. State, 101 S.W.3d 89, 99 (Tex. Crim. App. 2003). Before a

prospective juror may be excused for cause, the law must be explained to him,

and he must be asked whether he can follow that law, regardless of his personal

views. Gardner, 306 S.W.3d at 295. The proponent of a 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 prospective juror understood the

requirements of the law and could not overcome his bias or prejudice well

enough to follow the law. Id. When the record reflects that a prospective juror

vacillated or equivocated, we must defer to the trial judge, who had the better

opportunity to see and hear the prospective juror. Id.; Swearingen, 101 S.W.3d

at 99.

Harm from the erroneous denial of a defense challenge for cause occurs

(1) when a defendant uses a peremptory strike to remove a prospective juror

whom the trial court should have excused for cause at the defendant’s request,

(2) the defendant uses all of his statutorily allotted peremptory strikes, and (3) the

defendant unsuccessfully requests an additional peremptory strike that he claims

he would use to remove another prospective juror whom the defendant identifies

15
as “objectionable” and who actually sits on the jury. Busby v. State, 253 S.W.3d

661, 670 (Tex. Crim. App.), cert. denied, 555 U.S. 1050 (2008). In these

circumstances, the trial court’s erroneous denial of a defense challenge for cause

harms the defendant by depriving him of a statutory peremptory strike that he

otherwise would have had to remove the “objectionable” juror. Id.

Here, the following exchange took place between the trial court and

prospective juror 28 after the trial court introduced the attorneys for each side

and McKinley:

THE COURT: . . . Is there anyone who thinks you know or
recognize any of these individuals I’ve introduced to you here today?

If so, stand up and point at who it is that you knew before you
walk[ed] through the back door this morning and saw them sitting in
the courtroom, if anyone. All right. I see two jurors standing. 28 is
standing and 26. Twenty-eight, you kind of got to your feet slightly
faster. Who do you think you know or recognize?

PROSPECTIVE JUROR: I know Sheila [Wynn, one of the
prosecutors in the case].

THE COURT: Okay. And is that personally or professionally?

PROSPECTIVE JUROR: Personally.

THE COURT: How long have you known Sheila?

PROSPECTIVE JUROR: I guess maybe five years, four to
five years.

THE COURT: And what context do you all know each other?

PROSPECTIVE JUROR: I coached her daughter in baseball.

THE COURT: Which year did you coach her daughter?

16
 PROSPECTIVE JUROR: Let’s see here, 2003 through five
maybe.

....

THE COURT: . . . Is there anything about coaching Sheila’s
daughter or about Sheila[’s] being a player[’s] mom favorable or
unfavorable, because I’ve helped coach teams, and I loved or was
afraid of the parents depending on how into it they were. I can see
mixed emotions. Is there anything about your relationship to Sheila
through sports involving kids that would cause you any problem in
judging the State’s case? Is there anything you would hold for or
against Sheila or the State of Texas based upon your past life
experience?

PROSPECTIVE JUROR: Candidly, I really love the family,
and they have a sweet daughter, and she’s a good person. I might
have a bit of a bias I must say.

THE COURT: Let me just say that. You understand loving
the family means the wife is an ADA and the husband is a criminal
defense attorney which makes for interesting dinner conversation I’m
sure. But they’re both good lawyers. They’re both good people.
They’re both good parents. Their daughters I have met, and they
are sweet children, but the rules are this.

If you’re a juror, you’re supposed to judge the evidence and
not the lawyers. You’re supposed to objectively listen to everyone,
give everyone a fair shot, and if the evidence says guilt is proven
beyond a reasonable doubt, whether you loved or hated Sheila’s
family, whether you enjoyed or didn’t enjoy coaching her kids, you’re
supposed to vote guilty or not guilty based on the facts. And the
bias for Sheila as a person is okay. The bias for the State of Texas
because Sheila works for them is not okay. Do you understand the
difference?

PROSPECTIVE JUROR: Yes, sir.

THE COURT: So you think you have a bias for or against the
State of Texas?

PROSPECTIVE JUROR: No, sir.

17
 THE COURT: You just are fond of Sheila and enjoyed your
association?

PROSPECTIVE JUROR: Yes, sir.

THE COURT: If you listened to evidence and thought or had
a reasonable doubt that the State proved its case, could you look
Sheila in the eye and say “not guilty, you didn’t prove your case,”
and not have guilt trips about it?

PROSPECTIVE JUROR: I think so.

THE COURT: Well, I want you to listen to everything that’s
being discussed, and if you think your past associations with Sheila
means that you would hold that against a Defendant or for the State
after you hear what the rules are when [the] lawyers talk to you, you
need to let me know, but I want [you] to be thinking about what your
duty is. If you can rise above the personal relationship, fine. And if
it’s too close and not fair, that’s fine. But once you get a little more
information about how the process works, just give me an honest
answer before the end of the day, and I thank you for your candor.

Later in the record, the following exchange took place between defense

counsel and prospective juror 28:

[DEFENSE COUNSEL]: I just wanted to revisit something
really kick [sic] when you talked earlier to [the court about] Sheila.
You said that you are acquainted with Sheila and her family because
you coached one of her daughters.

PROSPECTIVE JUROR: Yeah.

[DEFENSE COUNSEL]: And earlier you talked to the Judge
about whether you would be able to sit on this jury and look at the
facts and evidence and not give Sheila’s side a little bump because
you know her personally, know her family. I just wanted to talk to
you a little about that. My understanding is, did you tell the Judge
that you could set aside and decide on these facts?

PROSPECTIVE JUROR: Yes.

18
 [DEFENSE COUNSEL]: Is that going to be easy or difficult for
you to do that?

PROSPECTIVE JUROR: It would be hard truthfully.

[DEFENSE COUNSEL]: Why is that?

PROSPECTIVE JUROR: You know, you have a bond with
friends, no question about it, and how should I say this. You know
like she and her daughter and my daughter, we as a group of the
team tried to sort of win a game, and so I’m not saying I would pay
back the favor, but there is a bond that happens in any sort of
challenge in life that you identify with people, and so I would be
untruthful to myself if I would say it would be easy to go the other
way. But I’m Christian, and I’m a proud Texan, and I would have to
decide based on the facts.

[DEFENSE COUNSEL]: Okay. So you would be able to --
excuse me. So you don’t feel that same team spirit here in the
courtroom?

PROSPECTIVE JUROR: Not necessarily, but there’s no
doubt I have a special bond.

[DEFENSE COUNSEL]: Okay. And tell me about how -- what
process would you go through -- if you’re picked on the jury, tell me
what kind of process would you go through to put that out of your
mind when you’re trying to make the decision?

PROSPECTIVE JUROR: Just sticking to the facts. If it
sounds like a he-said-she-said kind of a scenario, and maybe some
other facts, I guess, and it will be interesting because I think what will
reveal itself maybe in trial is children and the accused under
pressure of court, and so that’s really going to be something that I
would be heavy weighing my evaluations on is judging the
truthfulness of their testimony if they decided to take the stand.

[DEFENSE COUNSEL]: All right. Thank you so much. I
appreciate that.

Defense counsel challenged prospective juror 28, which the trial court

denied. Defense counsel asked for an additional strike, which the trial court also

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denied. Defense counsel stated on the record that he had to use one of his

peremptory strikes on prospective juror 28,16 rather than on prospective juror 7,

who sat on the jury and was objectionable to McKinley. See Allen v. State, 108

S.W.3d 281, 282 (Tex. Crim. App. 2003) (setting forth steps for appellant to

preserve challenge of juror for cause for appellate review), cert. denied, 540 U.S.

1185 (2004).

To demonstrate harm, McKinley first must show that the trial court

erroneously denied his challenge for cause of prospective juror 28. See Busby,

253 S.W.3d at 661; see also Davis v. State, 329 S.W.3d 798, 807 (Tex. Crim.

App. 2010) (stating that to demonstrate harm, appellant must show that trial court

erroneously denied one challenge for cause), cert. denied, 132 S. Ct. 128 (2011).

Summarizing the portions of the record set forth above, prospective juror 28

indicated that he was fond of Mrs. Wynn and her family and had a special bond

with them and that it would be hard for him to set that aside. But prospective

juror 28 also stated that he did not have a bias for or against the State; he said

that he could listen to the evidence, and if he had a reasonable doubt, he could

look Mrs. Wynn in the eyes and say that she did not prove the State’s case.

When asked what kind of process he would go through to put that special bond

16
According to the State’s brief, defense counsel used peremptory strikes
on prospective jurors 5, 6, 9, 21, 24, 26, 28, 35, 41, and 42; however,
documentation showing these strikes was not filed with this court. See Tex.
Code Crim. Proc. Ann. art. 35.15(b) (West 2006) (providing that in non-capital
felony cases in which the State does not seek the death penalty, the State and
defendant are entitled to ten peremptory challenges each).

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with Mrs. Wynn and her family out of his mind when making a decision at the

close of evidence, prospective juror 28 made clear that he would stick to the facts

and weigh the truthfulness of the witnesses’ testimony.

Viewing the entirety of his voir dire, prospective juror 28 stated that he did

not have a bias for or against the State and that he would not allow his

relationship with Mrs. Wynn’s family to affect his decision making. The record

reflects that although prospective juror 28 may have vacillated initially, his

answers as a whole reflect that he agreed to listen to the evidence and to follow

the law. Reviewing the trial court’s ruling with considerable deference, as we

must, we hold that the trial court did not abuse its discretion by denying

McKinley’s challenge for cause of prospective juror 28. See Anderson v. State,

633 S.W.2d 851, 854 (Tex. Crim. App. 1982) (holding that trial court did not

abuse its discretion by denying challenge for cause because prospective juror

stated that she could set aside her knowledge of the prosecutrix and the State’s

witnesses and determine the case strictly from the evidence and from the trial

court’s charge); Carrasquillo v. State, 742 S.W.2d 104, 111–12 (Tex. App.—Fort

Worth 1987, no pet.) (holding that prospective juror’s long-term friendship with

one of the prosecutors and his statement that he was uncertain how his

acquaintance with a prosecutor would affect his judgment did not establish bias

as a matter of law, and thus trial court did not abuse its discretion by denying

challenge for cause); see also Bell v. State, 724 S.W.2d 780, 797 (Tex. Crim.

App. 1986) (stating that prospective juror is not subject to a challenge for cause

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“if the juror can lay aside his impression or opinion and render a verdict based on

the evidence presented in court”), cert. denied, 479 U.S. 1046 (1987). We

overrule McKinley’s second point.

V. CONCLUSION

Having overruled McKinley’s two points, we affirm the trial court’s

judgment.

/s/ Sue Walker
SUE WALKER
JUSTICE

PANEL: GARDNER, WALKER, and MCCOY, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: August 21, 2014

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