NUMBER 13-14-00213-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
WESTON EDWIN HOLLEY, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 75th District Court of
Liberty County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Garza and Longoria
Memorandum Opinion by Justice Longoria
By one issue, appellant Weston Edwin Holley challenges his conviction for
possession of a controlled substance in Penalty Group One (methamphetamine)1 in an
1 The State’s brief indicates that the controlled substance was cocaine, but the indictment charged
appellant with possession of methamphetamine and the jury charge reflected the same.
amount of less than one gram, a state-jail felony enhanced to a second-degree felony by
the habitual offender statute. See TEX. HEALTH & SAFETY CODE ANN. § 481.115(a) (West,
Westlaw through 2013 3d C.S.); TEX. PENAL CODE ANN. § 12.425(b) (West, Westlaw
through 2013 3d C.S.). We affirm.
I. BACKGROUND2
Officer Shane Burleigh of the Dayton, Texas police department performed a pat-
down search of appellant after briefly detaining him in the front parking lot of a motel at
approximately 2:30 a.m. The search yielded a syringe and two plastic baggies which
appeared to contain narcotics. Forensic tests revealed that one of the baggies contained
a small quantity of methamphetamine, and the other a quantity of Soma and Xanax. The
State charged appellant with possession of the methamphetamine and the case was tried
to a jury.3 The jury returned a verdict of guilty and assessed punishment at ten years’
imprisonment in the Texas Department of Criminal Justice—Institutional Division, court
costs, and no fine.
II. DISCUSSION
By his sole issue, appellant argues that the trial court committed reversible error
by denying his counsel an opportunity to rehabilitate four potential jurors whom the State
successfully challenged for cause because they indicated they could not consider the full
range of punishment.
2 This case is before this Court on transfer from the Ninth Court of Appeals in Beaumont pursuant
to a docket-equalization order issued by the Supreme Court of Texas. See TEX. GOV’T CODE ANN. § 73.001
(West, Westlaw through 2013 3d C.S.).
3 Appellant pleaded guilty to possession of the Soma and Xanax in a separate proceeding that is
not before us.
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A. Standard of Review & Applicable Law
The Texas Constitution affords criminal defendants the “right of being heard by
himself or counsel, or both.” TEX. CONST. art. I, § 10. The Texas Court of Criminal
Appeals has long held that this right encompasses the right to interrogate prospective
jurors. Easley v. State, 424 S.W.3d 535, 537 (Tex. Crim. App. 2014). As a part of this
right, both the prosecution and the defense have the right to inform the venire panel of
the full range of punishment, including the maximum that would be available in the event
that the State proved a prior felony conviction for enhancement purposes. Hill v. State,
426 S.W.3d 868, 874 (Tex. App.—Eastland 2014, pet. ref'd) (citing Frausto v. State, 642
S.W.2d 506, 509 (Tex. Crim. App. [Panel Op.] 1982)). A juror who testifies unequivocally
that he or she is unable to consider the full range of punishment is properly subject to
challenge for cause. Cardenas v. State, 325 S.W.3d 179, 184–85 (Tex. Crim. App. 2010)
(“Both the State and defense are entitled to jurors who can consider the entire range of
punishment for the particular statutory offense—i.e., from the maximum to the minimum
and all points in between.”). The opposing party or the trial court judge may examine the
juror to ensure that the juror appreciates the position he or she is taking, but unless there
is further clarification or vacillation by the juror, “the trial judge must grant a challenge for
cause if the juror states that [he or she] cannot consider the full range of punishment.” Id.
at 185.
However, the trial court may also impose reasonable restrictions on voir dire
examination. Thompson v. State, 267 S.W.3d 514, 517 (Tex. App.—Austin 2008, pet.
ref'd). We review the trial court’s decision to limit voir dire for abuse of discretion. Hill,
426 S.W.3d at 874. “The trial court abuses its discretion when it limits a proper question
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concerning a proper area of inquiry.” Thompson, 267 S.W.3d at 517 (citing Dinkins v.
State, 894 S.W.2d 330, 345 (Tex. Crim. App. 1995)).
B. Analysis
We first address the State’s argument that appellant did not preserve this issue for
our review. To preserve an issue for review, a party must make a timely request,
objection, or motion that is sufficiently specific to apprise the trial court of the complaint,
unless the grounds are apparent from the context. TEX. R. APP. P. 33.1(a)(1)(A); Layton
v. State, 280 S.W.3d 235, 238–39 (Tex. Crim. App. 2009). Even most constitutional
complaints issues can be waived by failure to raise a timely objection. Saldano v. State,
70 S.W.3d 873, 887 (Tex. Crim. App. 2002).
After the State questioned whether any members of the venire panel could not
consider the maximum range of punishment, appellant’s counsel asked whether she
would have an opportunity to rehabilitate those panel members who answered that they
could not consider the maximum. The trial judge responded: “they were emphatic about
their answers, many of which you are going to move to strike.” Both parties continued
voir dire on other subjects and did not mention the issue again until the following
exchange occurred towards the end of voir dire:
The Court: I have 3, 7, 12, 17, 23, 25, 26, 31, and 37 before me at this
time. Are there others that the State challenges for cause?
[Prosecutor]: 8. I think that may have been the one, Judge, that didn’t get
on your list from before.
The Court: Yes, it was. All right. Which do you object to, Ms.
Trahan?
Defense: 3, 12, 17, 30, and 23. Excuse me. 12.
[Prosecutor]: 12?
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Defense: 3, 12, 17, and 23. I’m sorry.
The Court: All right. What’s your basis for challenge for cause on 3, 12,
17, and 23?
Defense: Your Honor, although I - -
The Court: What’s your basis for challenge for cause on 3, 12, 17, and
23?
Prosecution: Judge, they said they could not consider the full range of
punishment in this case for this offense.
The Court: That was my understanding as well. Those are the only ones
that you object to, correct?
Defense: Yes.
The Court: Some of those you’re going to challenge for cause?
Defense: Yes.
The Court: All right. The State’s challenges for cause on juror 3, 7, 8,
12, 17, 23, 25, 26, 31, and 37 are sustained.
The State alleges that appellant forfeited his objection by failing to provide a basis
for it. We agree. After appellant’s counsel inquired about an opportunity to rehabilitate
the juror, the parties did not mention the issue again until the colloquy we reproduced
above. The intervening examination fills over thirty pages of the reporter’s record. When
appellant’s counsel did object, she did not reference her earlier question, and she did not
otherwise explain the basis for the objection. We hold that appellant has forfeited his
objection because it was not sufficiently specific to apprise the trial court of the grounds
for it. See TEX. R. APP. P. 33(a)(1)(A); Layton, 280 S.W.3d at 238–39.
Alternatively, even assuming appellant preserved error, we hold that the trial court
did not abuse its discretion. The defendant in Hill, the case appellant chiefly relies on,
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argued successfully that it was error to prevent him from asking some of the potential
jurors if they could be impartial and consider the full range of punishment which might be
available if the State proved the enhancement allegations. Hill, 426 S.W.3d at 877. Some
of the potential jurors that Hill was prevented from questioning were eventually selected
to serve on the jury. Id. By contrast, appellant argues here that it was error for the trial
court to deny him an opportunity to rehabilitate potential jurors who were already properly
subject to challenge for cause because they answered that they could not consider the
full range of punishment. See Cardenas, 25 S.W.3d 185. Appellant provides no other
authority that the trial court’s decision rises to the level of a violation of the right to
interrogate jurors. We conclude from this that the trial court did not abuse its discretion
by preventing appellant from asking a proper question to the venire panel. See
Thompson, 267 S.W.3d at 517. We overrule appellant’s sole issue.
III. CONCLUSION
We affirm the judgment of the trial court.
NORA L. LONGORIA,
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
16th day of October, 2014.
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Weston Edwin Holley v. State
Combined Opinion