Opinion issued December 11, 2014
In The
Court of Appeals
For The
First District of Texas
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NO. 01-13-00994-CR
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ANTHONY SOREL HAYWOOD, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 176th District Court
Harris County, Texas
Trial Court Case No. 1373686
MEMORANDUM OPINION
Appellant Anthony Sorel Haywood was charged by indictment with
aggravated assault of complainant Chris Charles by threatening him with imminent
bodily harm by using and exhibiting a firearm. A jury found Haywood guilty of
the lesser-included offense of deadly conduct by discharge of a firearm. The trial
court found the indictment’s enhancement paragraph true, and sentenced Haywood
to six years’ imprisonment. In two issues, Haywood contends that the trial court
erred in ruling that Haywood opened the door to his custodial statements and in
denying seven challenges for cause during voir dire. We affirm.
Background
The complainant Charles drove to Haywood’s apartment intending to
purchase marijuana. Charles went inside Haywood’s apartment while his
girlfriend, Latoya Simmons, and her six-year old son remained in the car. Charles
and Haywood disagreed about the price of the marijuana. Charles testified he left
the apartment and Haywood followed him outside. Haywood fired a gun as the car
drove away. The bullet hit Charles’s car, but no one inside was hit.
Simmons called the police, and Charles directed them to Haywood’s
apartment. Officer Fuhlbrigge of the Houston Police Department detained,
handcuffed, and took Haywood outside of the apartment. When Officer
Fuhlbrigge asked Haywood whether he had a gun, Haywood said that he gave the
gun to a friend. Haywood also told Officer Fuhlbrigge that he fired his gun at
Charles because he was afraid that Charles had a knife.
The trial court suppressed Haywood’s statements. When Haywood cross-
examined Officer Fuhlbrigge, Haywood sought to show the jury that Officer
Fuhlbrigge conducted a sloppy investigation. In response to counsel’s questions,
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Officer Fuhlbrigge admitted that his investigation was not exhaustive: he did not
collect shell casings, conduct ballistic testing on Charles’s car, conduct a gunshot
residue test on Haywood’s hands, or obtain a warrant to search Haywood’s
apartment. When Haywood’s counsel asked Officer Fuhlbrigge why he did not
conduct a more thorough investigation, Officer Fuhlbrigge responded, “we just
didn’t, sir.” He also said, “Based on the statements that we received that day, sir,
we thought that was enough, enough evidence.”
The trial court ruled that Haywood opened the door to the admission of
Haywood’s previously-suppressed statements and allowed the prosecutor to ask
Officer Fuhlbrigge “very narrow and direct questions about why no search warrant
[was sought] and why not bag his hands.” Officer Fuhlbrigge testified that he did
not perform these tasks because Haywood had admitted to him that he fired a gun
at Charles’s car and then gave the gun to a friend.
Challenges of Jurors for Cause
In his second issue, Haywood contends that the trial court erred by denying
him seven additional challenges for cause.
A. Standard of Review
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 the
venireperson’s demeanor and responses. Russeau v. State, 171 S.W.3d 871, 879
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(Tex. Crim. App. 2005); Blue v. State, 125 S.W.3d 491, 497 (Tex. Crim. App.
2003). “When the record does not contain a clearly objectionable declaration by
the venireperson, or the record demonstrates a vacillating or equivocal
venireperson, we accord ‘great deference’ to the trial judge who had the better
opportunity to see and hear the person.” Swearingen v. State, 101 S.W.3d 89, 99
(Tex. Crim. App. 2003).
We will reverse a trial court’s ruling on a challenge for cause “only if a clear
abuse of discretion is evident.” Blue, 125 S.W.3d at 497 (citation omitted). We
review the totality of the voir dire testimony to determine whether it supports the
trial court’s finding with respect to whether the prospective juror is able to follow
the law as instructed. See King v. State, 29 S.W.3d 556, 568 (Tex. Crim. App.
2000); Murphy v. State, 229 S.W.3d 334, 339 (Tex. App.—Amarillo 2006, pet.
ref’d).
B. Applicable Law
A veniremember who cannot presume the defendant’s innocence is
challengeable for cause based upon a bias against the law. See Ladd v. State, 3
S.W.3d 547, 560 (Tex. Crim. App. 1999) (citing Banda v. State, 890 S.W.2d 42, 55
(Tex. Crim. App. 1994) (en banc)); see also TEX. CODE CRIM. PROC. ANN. art.
35.16(c)(2) (West 2006) (defendant may make challenge for cause when
prospective juror has bias against the law). For challenges based upon an alleged
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bias against the law, the relevant inquiry is whether the veniremember’s beliefs
would “prevent or substantially impair him from following the law as set out in the
trial court’s instructions and as required by the juror’s oath.” Swearingen, 101
S.W.3d at 99 (citing Lagrone v. State, 942 S.W.2d 602, 616 (Tex. Crim. App.
1997)).
Before a prospective juror can be excused for cause on this basis, the law
must be explained to him and he must be asked whether he can follow that law
regardless of his personal views. Jones v. State, 982 S.W.2d 386, 390 (Tex. Crim.
App. 1998). The proponent of a challenge for cause has the burden of establishing
his challenge is proper. Feldman v. State, 71 S.W.3d 738, 747 (Tex. Crim. App.
2002). The proponent does not meet his burden until he has shown that the
venireperson understood the requirement of the law and could not overcome his
prejudice well enough to follow it. Id.
C. Analysis
During voir dire, the trial court advised the veniremembers that they “must
be able to presume a person innocent.” Haywood’s counsel also told the
veniremembers:
Now, the presumption of innocence, as the judge talked about, is that
the State has the entire burden. The defendant has no burden
whatsoever and therefore he’s presumed innocent. Right? If you-all
had to vote right now as to whether he’s guilty or innocent, Mr.
Haywood as he sits here right now is what?
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The veniremembers responded in unison, “Innocent.”
During vior dire, Haywood’s counsel asked the veniremembers to rank their
“ability” to presume Haywood’s innocence based on a range of 0–10, with zero
meaning the juror presumes Haywood innocent and ten meaning the veniremember
presumes him to be “very guilty”:
[H]ow would you rate your ability to presume Mr. Haywood to be
innocent? All right. And let me be specific in the understanding of
this. To me, in order to be qualified to sit in the jury box your answer
should be zero, right? If I give you a range of zero to ten, zero being I
can presume him to be innocent, and ten being I presume him to be
very guilty, right. So that’s the range. Zero I presume him to be
innocent; ten, my ability to presume his innocence is not good because
I think he’s very guilty, right, just as he sits here today.
***
So, again, the presumption of innocence is zero, and in order to be on
the jury, it’s my contention you need to say zero, right? But I want
you to say whatever number you think. If your ability to presume him
to be innocent right now is zero say zero. If it’s somewhere in
between zero and ten give me that number, zero being innocent, ten
being very guilty.
39 of the 65 veniremembers ranked themselves at something other than zero.
The parties agreed to strike 19 of those 39. Haywood’s counsel challenged the
remaining 20 for cause, but the trial court denied these challenges: “I think that
your question asks them about rating their ability so it doesn’t mean that they’re
not presuming [Haywood] innocent.” Seven of the 20 veniremembers served on
the jury.
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Haywood contends that the seven veniremembers’ nonzero answers
established their inability to follow the law regarding the presumption of innocence
and that the trial court erred in denying his challenges for cause. This court
recently addressed a similar issue in Donaldson v. State, No. 01-12-00270-CR,
2014 WL 1004247 (Tex. App.—Houston [1st Dist.] Mar. 13, 2014, pet. ref’d)
(mem. op., not designated for publication). In Donaldson, appellant’s trial counsel
advised the veniremembers to presume Donaldson innocent and later asked if they
had “some position about whether [Donaldson was] presumed to be innocent.” Id.
at *4. Donaldson’s counsel told the veniremembers to give an answer based on a
scale of zero to ten where ten means that the veniremember “absolutely knows he’s
guilty.” Id. On appeal, Donaldson argued that the veniremembers that provided a
nonzero answer showed their inability to follow the presumption of innocence law
and that, therefore, the trial court erred in denying his challenges for cause. Id. at
*5. Following our sister court’s decision in Barnes v. State, No. 14-04-00478-CR,
2005 WL 2420375 (Tex. App.—Houston [14th Dist.] Aug. 25, 2005, no pet.)
(mem. op., not designated for publication), we held that the trial court did not
abuse its discretion in denying Donaldson’s challenges for cause because counsel’s
question “amounted to no more than a survey of veniremembers’ personal
feelings.” Donaldson, 2014 WL 1004247, at *5. The Donaldson court reasoned
that “counsel failed to prove that the prospective jurors who gave nonzero answers
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were properly challengeable for cause because he did not ask whether they could
follow the law despite their prejudices.” Id.; see Barnes, 2005 WL 2420375, at *3
(trial court did not err in denying appellant’s challenges because counsel failed to
ask challenged veniremembers whether their personal beliefs would make them
unable to presume appellant’s innocence).
Here, Haywood’s counsel asked the veniremembers to “rate [their] ability to
presume Mr. Haywood to be innocent.” His complaint fails for the same reason
described in Donaldson. Counsel failed to ask whether any of the veniremembers
who provided nonzero answers could follow the law on the presumption of
innocence despite their prejudices. See Donaldson, 2014 WL 1004247, at *5. We
thus conclude that Haywood did not meet his burden to show that the
veniremembers understood the law and could not overcome their prejudices well
enough to follow it. See Feldman, 71 S.W.3d at 747 (proponent does not meet
burden until he has shown that venireperson understood requirement of law and
could not overcome his prejudice well enough to follow it). Accordingly, the trial
court did not abuse its discretion in denying Haywood’s challenges for cause.
We overrule Haywood’s second issue.
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Opening the door to Haywood’s oral statements
A. Standard of Review and Applicable Law
We review a trial court’s ruling on admissibility under an abuse of discretion
standard. De La Paz v. State, 279 S.W.3d 336, 343 (Tex. Crim. App. 2009).
Evidence that is otherwise inadmissible may be admitted to correct a false
impression left by the questioning of a witness. See Wheeler v. State, 67 S.W.3d
879, 885 (Tex. Crim. App. 2002). Thus, inadmissible evidence may be admitted if
the party against whom the evidence is offered opens the door, provided the
evidence does not stray beyond the scope of the invitation. Schultz v. State, 957
S.W.2d 52, 71 (Tex. Crim. App. 1997). This is true even of statements that are
inadmissible because they constitute custodial interrogations obtained without
Miranda warnings. See Harris v. New York, 401 U.S. 222, 224–25 (1971)
(defendant opened door to statement taken in violation of Miranda to be used for
impeachment purposes).
B. Analysis
In his first issue, Haywood contends that the trial court erred in admitting his
oral statements in which he admitted to Officer Fuhlbrigge that he fired the gun at
Charles’s car and then gave the gun to his friend. The State argues that Haywood
opened the door to their admission by asking Officer Fuhlbrigge why he failed to
take certain steps during the investigation. The State argues that this line of
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questioning created the false impression before the jury that Officer Fuhlbrigge’s
investigation was shoddy. We agree with the State.
Haywood’s counsel asked Officer Fuhlbrigge whether he bagged
Haywood’s hands to preserve evidence to conduct a gunshot residue test. Officer
Fuhlbrigge testified that he did not. When Haywood’s counsel asked why
Fuhlbrigge did not, Officer Fuhlbrigge testified “we just didn’t, sir.” Haywood’s
counsel also asked Officer Fuhlbrigge why he did not obtain a search warrant for
Haywood’s apartment, and Officer Fuhlbrigge responded, “Based on the
statements that we received that day, sir, we thought that was enough, enough
evidence.” Because Haywood’s statements were suppressed, Officer Fuhlbrigge
was unable to explain to the jury that there was no need to test Haywood’s hands
for gunshot residue or to search his apartment for the gun because Haywood had
admitted firing the gun and told Officer Fuhlbrigge that the gun was not inside
Haywood’s apartment. We thus conclude that Haywood’s counsel’s questions
regarding why Officer Fuhlbrigge did not bag Haywood’s hands or obtain a search
warrant for Haywood’s apartment left a false impression before the jury that
Officer Fuhlbrigge conducted a shoddy investigation. Accordingly, Haywood
opened the door to the admission of his oral statements. See Sandoval v. State, No.
14-05-00389-CR, 2006 WL 3433805, at *1–2 (Tex. App.—Houston [14th Dist.]
Nov. 30, 2006, pet. ref’d) (mem. op., not designated for publication) (appellant
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opened door to admission of his oral statement that he purchased drugs to explain
detective’s failure to request handwriting analysis and correct false impression
with jury).
Haywood contends that his statement should not have been admitted even if
he opened the door because the statement was “inadmissible in its own right.” In
support of his argument, Haywood cites to a three-judge plurality opinion in Kipp
v. State, 876 S.W.2d 330 (Tex. Crim. App. 1994). That opinion reasons that
opening the door to evidence does not render that evidence admissible “in any
form, including hearsay.” Id. at 337. But plurality opinions are not binding
precedent. Vasquez v. State, 389 S.W.3d 361, 370 (Tex. Crim. App. 2012).
Accordingly, we are not required to follow the plurality opinion in Kipp. See id.
(court of appeals was not required to follow plurality opinion because it has “no
binding precedential value”). Further, even were it a majority opinion, the
plurality analysis in Kipp does not support Haywood’s argument, because
Haywood’s counsel opened the door to the admission of Haywood’s custodial
statement, and his statement was otherwise admissible as a statement by a party
and an admission against interest.
Accordingly, we hold that the trial court did not abuse its discretion in
admitting Haywood’s statements. See Harris, 401 U.S. at 224–25 (defendant
opened door to statement taken in violation of Miranda to be used for
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impeachment purposes); Walker v. State, No. 01-98-00394-CR, 1999 WL 826203,
at *5 (Tex. App.—Houston [1st Dist.] Sept. 14, 1999, pet. ref’d) (opin., not
designated for publication) (“We note that while this evidence would normally be
inadmissible because it constituted custodial interrogation without Miranda
warnings, counsel’s questions created an incomplete picture of the evidence and
incriminating facts; therefore, the door was opened for admission of appellant’s
statement.”); see also Sandoval, 2006 WL 3433805, at *1–2 (appellant opened
door to otherwise inadmissible oral statements to police that trial court had
suppressed).
We overrule Haywood’s first issue.
Conclusion
We affirm the trial court’s judgment.
Rebeca Huddle
Justice
Panel consists of Chief Justice Radack and Justices Bland and Huddle.
Do not publish. TEX. R. APP. P. 47.2(b).
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