In The
Court of Appeals
Ninth District of Texas at Beaumont
____________________
NO. 09-15-00328-CR
NO. 09-15-00329-CR
NO. 09-15-00330-CR
NO. 09-15-00331-CR
NO. 09-15-00332-CR
____________________
KIMBERLY KUCERA ADAMS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the County Court at Law No. 5
Montgomery County, Texas
Trial Cause Nos. 14-294731, 14-294732, 14-294733,
14-294734 and 14-294735
MEMORANDUM OPINION
Kimberly Kucera Adams (Adams or Appellant) was charged by information
with five counts of cruelty to livestock animals for failing to provide necessary
food, water, or care to horses that were in her custody. See Tex. Penal Code Ann.
§ 42.09 (West 2011). A jury found Appellant guilty on all five counts and assessed
1
punishment at one year in jail and a $2000 fine for each count. Appellant timely
appealed, raising three issues. We affirm.
EVIDENCE AT TRIAL
Testimony of Officer Dunn
Animal Control Officer Chris Dunn (Officer Dunn or Dunn) testified for the
State. In January of 2014, Officer Dunn was called to a location in Montgomery
County regarding dead horses and “a divorce situation[.]” According to Officer
Dunn, Adams lived at the location. Dunn explained that when he arrived he found
fifteen living horses on the property, and he also saw three dead horses near the
front gate in the pens and another dead horse in the barn. Dunn testified that it
appeared to him that the dead horses had been there a long time because they were
in a state of decomposition, although he explained that the dead horse in the barn
was not “as decomposed” as the others.
Dunn noticed that about ninety percent of the fence boards were “chewed
through or chewed on[,]” which suggested to him that the horses lacked food, and
he was concerned about the welfare of the horses. According to Dunn, there was
no hay or “feed[,]” and Adams told him she had run out of food for the horses that
morning. Dunn testified that there were several places nearby that sold “horse feed
or hay[,]” but Adams told him she was going to Woodville to get hay. Dunn also
2
did not see any water for the horses, and the lack of water suggested to him that
Adams was not taking care of the horses. Dunn explained that he could feel the
ribs on the horses and that some horses were eating their own manure, which led
him to conclude that the horses had not been fed. Dunn also saw that some of the
horses had diarrhea, and based on his experience, this suggested the horses were
sick or had parasites. Officer Dunn also testified that all the living horses on the
property were underweight and some of the horses had rain rot around the hooves,
which he explained was an “infection and fungus of the skin caused by warm,
damp climate.”
According to Dunn, Adams told him that some of the horses had been show
horses, which surprised him because the horses were not in good shape. Dunn also
explained that Adams said the dead horses died in October of 2013 and that she did
not want her husband to find out “because of income tax reasons[]” and did not
want her husband to claim the horses on his income taxes before the first of the
year.1 Dunn also agreed that Adams also told him she believed her husband had
poisoned the animals.
Officer Dunn explained to the jury that he was confident of his opinion that
the horses were not in good health, he instructed Adams to get food for the horses
1
We note that some witnesses referred to Michael Adams as Appellant’s
“husband” and others refer to him as her “ex-husband.”
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right away, and he also contacted the Society for Prevention of Cruelty to Animals
(SPCA). According to Dunn, when he returned to the property about three days
later, he observed three bales of hay, a water trough containing water, and some
bags of food in the garage. The State had Dunn identify State’s Exhibit 177, a
videotape, which was admitted into evidence without any objection. Dunn
explained to the jury that on the day of the seizure, he examined the property and
horses again. Dunn agreed that, based on his experience and training, he formed an
opinion that Adams had unreasonably failed to provide food, water, or care for the
living and dead horses on her property. Dunn also testified that he had seen no
evidence that the problems with the animals were caused by hunting, trapping,
wildlife management, wildlife depredation control, or husbandry or agricultural
practices. 2
Testimony of Marshall Hefley
Marshall Hefley (Marshall) testified that Adams was his “birth mother[,]”
but that his father had full custody of him since he was young. According to
2
Under 42.09(f), it is an exception to the application of section 42.09 if the
conduct engaged in by the actor is a generally accepted and otherwise lawful form
of conduct occurring solely for the purpose of or in support of fishing, hunting, or
trapping, or wildlife management, wildlife or depredation control, or shooting
preserve practices as regulated by state and federal law, or animal husbandry or
agriculture practice involving livestock animals. See Tex. Penal Code Ann.
§ 42.09(f) (West 2011).
4
Marshall, he visited Adams in 2013 and saw that the horses were in “extremely
poor[]” condition and that the horses had “drastically declined[]” from their prior
“pristine condition” in 2010 when they were show horses. Marshall explained that
he told Adams he was concerned about the horses’ health and that, if she could not
care for them, she should get rid of or sell them. According to Marshall, he knew
that once Adams’s divorce became final, that she would not be able to afford to
care for the horses, and that when he advised Adams to sell the horses, she
instructed him that he “was no longer to come out there or have anything to do
with them.” Marshall also explained that Adams had a drinking problem and that
in 2013 he was concerned after seeing her intoxicated.
Marshall told the jury that while Adams was going through her divorce from
Michael, Michael’s only access to the property was when Adams said it was
allowed. Marshall explained, that during the marriage before Adams and Michael
separated, Michael “had a great responsibility [for the horses]. He paid for all the
feed. He helped with all the shows, helping get ready, doing everything necessary,
making sure everybody was there on time, went to all the shows.” According to
Marshall, once the divorce commenced, Adams decided she could care for the
horses on her own. Marshall also explained that, although there was a pond at the
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front of the property, the horses typically drank from water troughs in the back of
the property, but there was no automatic system to fill the troughs.
Testimony of Matthew Roper
Matthew Roper (Matthew), Adams’s eldest son, testified that he grew up
around Adams and her horses. According to Matthew, Adams had been around
horses as long as he could remember and “[s]he was probably the most
knowledgeable person about horses that [he] knew.” But, Matthew explained that,
when he visited his mother in 2013, the horses
. . . definitely weren’t in show condition. They didn’t look like
they’d been clipped or groomed. The fencing had all kind of been
chewed through. The trees, all the bark was off of it. They were just a
little bit thinner [] at that point. She was trying to maintain that whole
household and horses on her [] own. The horses were starting to show
that.
Matthew also testified that he observed “at least one horse dead on the
property[]” in November or December of 2013, and he was concerned about the
health of the horses still living on the property at that time. According to Matthew,
it was “pretty obvious something needed to be done[]” and he told Adams he was
concerned about the health of the horses. He explained that Adams did try to care
for the animals and he did not believe the horses were being “completely
neglected[]” but he stated “I think more should have been done to save them.”
Matthew testified that there was not enough “feed” for the horses, and that the
6
neighborhood rules concerning the number of horses on a property were “a huge
fight for Adams and her ex-husband[.]” Matthew explained that, when he told
Adams of his concern,
[s]he was very worried, obviously. She had said she did a lot of
research online and talked to some of her veterinarian friends and
thought Mike, her ex-husband, or soon to be ex-husband, was
poisoning the horses. And he bought some kind of plant and he was
throwing it over the fence and they were eating it. And that’s what
was causing them to get sick and die.
Matthew was shocked and did not believe that Michael would do something like
that. Matthew also testified that Adams “was scared and had to keep[] a lookout for
anyone else coming on the property. Asking neighbors if anyone had been coming
over. She was convinced someone [was] poisoning [the horses].” According to
Matthew, Adams had talked with him about how to dispose of a dead horse, and
she told him “she was worried that her husband would get the tax benefits from the
business if they found out the horses started dying. So she wanted to keep it low
key.” Matthew explained that Adams was going through a divorce at that time, she
had a drinking problem, she did not have a job, and she was living on income she
was getting from the deceased father of two of her children.
Testimony of Deputy Smith
Deputy Don Smith (Deputy Smith or Smith), with the Montgomery County
livestock division, explained that as a livestock officer, he had investigated
7
“thousands[]” of animal cruelty cases. Smith testified that he went to Adams’s
home on January 31, 2014, and that she was upset as they talked about the animals.
Smith explained that he observed fifteen live horses on the property and three dead
horses. According to Smith, Adams said she believed the horses had died after her
husband had poisoned them and that he had poisoned the horses that were her
favorites, and, on direct examination, he explained as follows:
Q. Did she provide you any evidence whatsoever of the poisoning?
A. No, sir.
Q. Other than the dead horses?
A. No, sir.
Q. Did you ask her a number of times about the poisoning?
A. Well, I asked her why she thought he’d poisoned them.
Q. Okay. What did she say?
A. They were going through a divorce. And those three horses were
her favorite, and he poisoned them because of that.
Q. As far as you can tell did she ever report this poisoning to law
enforcement?
A. No.
Q. And how -- when you asked her how were the horses poisoned
what did she say?
A. I don’t know how he did it, but he did it.
8
Q. Okay. Again, other than the dead horses, did she offer a scrap of
evidence to corroborate that her husband had poisoned these horses?
A. No, sir.
Deputy Smith described what he observed on Adams’s property. Smith
explained that the fences showed that the horses were chewing the fences, which
indicated to him that the horses lacked food. Smith observed both underweight or
thin animals and dead animals on the property. Smith also noticed the water trough
was empty, he did not find “one scrap[]” of hay, and he did not find any horse
“feed[,]” although Adams said she fed the horses one to two scoops of “feed” a
day. Smith told Adams to “go get feed and hay for the animals.” Smith also
observed some horses with diarrhea, some horses eating their own manure, and
some horses with rain rot.
Smith explained that when he returned to Adams’s property with a seizure
warrant and to meet with the SPCA, he observed five horses standing near a dead
horse. Smith explained that he regarded it as unusual for an owner to leave the
dead animals lying out. According to Smith, taking care of a horse is expensive,
and Smith’s investigation led him to believe that Adams did not have a job.
Smith testified that it was his opinion that Adams had been cruel to her
livestock within the meaning of the Penal Code, Adams could not take care of the
animals, Adams unreasonably failed to provide food, water, or care for the fifteen
9
living horses and the three dead horses, and Adams’s conduct relating to the horses
was not related to fishing, hunting, animal husbandry, or agricultural practices
involved with livestock animals.
Testimony of Deputy Morrow
Deputy Dwayne Morrow (Deputy Morrow or Morrow) testified that he is a
livestock officer for Montgomery County and he has investigated “close to []
thousands” of animal cruelty cases. Morrow explained that he went to Adams’s
house on January 31, 2014, pursuant to a phone call he received from Deputy
Smith concerning horses on the property. According to Morrow, upon arrival, he
could see underweight horses as well as dead horses. Morrow explained that
Adams said two of the horses died in October and another died in December, that
the horses died because they had been poisoned, and that she had not buried the
horses because she did not want her ex-husband claiming them for income tax or
filing an insurance claim.
Morrow testified that he did not observe any “feed” for the horses, and
Adams told him she did not have any. Morrow explained that he observed fences
that had been chewed and only a “minimal” amount of water for the horses.
Morrow also observed horses eating limbs and bark off a tree. Morrow was
concerned about the welfare of the horses, and he returned the following week with
10
the SPCA and a seizure warrant. Morrow agreed that, if he had left the horses in
Adams’s care, more horses would have died, and based on his training and
experience, he believed that Adams unreasonably failed to provide food, water, or
care to the fifteen living and three dead horses.
Testimony of Deborah Michielson
Deborah Michielson (Michielson) testified that she is a senior animal cruelty
investigator with the Houston SPCA, and that she has personally investigated
thousands of animal cruelty cases. Michielson assisted in the investigation and she
visited Adams’s property on or about February 5, 2014. The SPCA had received
reports of several deceased animals on Adams’s property and, because of the
possibility of a contagious disease, a veterinarian also went with Michielson to the
property. According to Michielson, there were three dead horses on the property.
Michielson testified that it was not good husbandry practice to leave the deceased
animals with the living animals, and she regarded it as “disturbing.”
Michielson testified that the water trough on the property had very little
water in it and some fence boards were chewed, either due to lack of food or
boredom. Michielson also regarded the lack of water as “alarming[.]” At trial, the
State showed Michielson several photographs taken at Adams’s property of several
of the horses. Using the photos, Michielson then described the visible health
11
problems she observed with the horses, including “an unthrifty hair coat,” an open
sore, as well as overgrown and untrimmed hooves, being underweight, and having
rain rot.
Based on her training and experience, Michielson concluded that the horses
living on Adams’s property were not in good health, were underweight, some had
rain rot, some had hoof issues, and the animals were in “poor living conditions[]”
that resulted from Adams’s neglect. The State asked Michielson what seemed to be
the underlying problem, to which she responded
[t]here was lack of general care. You had deceased horses not
removed, which could present a health hazard. You had underweight
horses . . . . You know the big thing to me was seeing the animals --
live animals walking around with deceased animals in unclean
conditions and lack of water.
Testimony of Sarah Hall
Sarah Hall (Hall) testified that she is a photographer and she and her
husband have a business raising, training, and showing horses. Hall testified that
she had sold four horses to Adams about three or four years earlier, including a
horse called Jimmy. Hall explained she had heard there was a dead horse in the
barn at Adams’s property, and she feared it was Jimmy because she knew Adams
kept Jimmy in the barn. Hall told the jury that she gave Officer Dunn a photograph
12
of Jimmy, and Dunn was able to confirm that the dead horse in the barn was
Jimmy.
Testimony of Dr. Frank Schuman
Frank Schuman, D.V.M. (Dr. Schuman or Schuman), testified that he
accompanied the SPCA to Adams’s property in February 2014, and that he treated
a number of horses that were seized from Adams. Upon arriving at the property, he
observed that “[f]or that number of horses [it was] a small property, as well as very
muddy. There was no forage. And all of the fencing had been chewed and whittled
on by the horses.” Schuman explained that chewed fences are typically a sign that
the animals are malnourished. Dr. Schuman’s veterinary records on the horses
seized were admitted as State’s Exhibit 183.
Schuman explained that his records for the white foal indicated the foal was
quite underweight, had overgrown hooves, showed signs of parasites and anemia,
and had some precursors to pneumonia. Dr. Schuman testified that the foal was in
poor health and that proper nourishment and shelter as well as appropriate
husbandry could have prevented this foal’s ailments.
Schuman discussed the records for a palomino mare, and noted the mare was
underweight, had an “alarmingly low body condition score[,]” the horse’s teeth had
not been floated or filed for “quite awhile[,]” the skin showed rain rot and multiple
13
abrasions and scars, there was severe matting of the mane and tail, “extremely
overgrown” hooves that were starting to chip and crack, showed muscle atrophy,
and had signs of parasites. Schuman’s examination noted that the abrasions present
were due to horse bites, and he explained this is typical for horses in groups that
are competing for a small amount of available food. Schuman testified that the
palomino mare was in poor health.
Dr. Schuman addressed the records for the paint foal and explained that the
foal had a very low body condition score, was running a fever, showed signs of
pneumonia, the skin was in bad condition, showed rain rot and abrasions, all
hooves were overgrown, exhibited muscle wasting, showed signs of parasites, and
was dehydrated. Schuman stated that “this foal is in very poor health.”
Schuman next addressed the records for the sorrel mare, which he
determined had a very low body condition score and was “[e]xtremely
underweight.” The sorrel mare also showed significant dental abnormalities, rain
rot, multiple abrasions and scars likely due to bite wounds, overgrown hooves,
muscle atrophy, had signs of parasites and signs of pain due to arthritis, and was
dehydrated and hypoglycemic.
Dr. Schuman testified the blood work and physical exams he performed on
the animals seized from Adams’s property showed no signs of poisoning. Dr.
14
Schuman explained that he was not able to do any testing on the dead horses
because they had been deceased for such a long time. Schuman stated that, based
on his evaluation of the fifteen surviving horses as well as looking at the deceased
horses, the “most likely conclusion is that the horses died of lack of nourishment,
electrolyte imbalances,” and general lack of care. Schuman also testified that
“[t]here’s not really a poison to my knowledge” that would be consistent with the
symptoms displayed by the horses.
Testimony of Kimberly Adams
Adams testified on her own behalf. Adams explained that she had worked in
horse-related businesses since the early 1990s, and worked as a riding instructor,
facility manager, and horse trainer. In 2007, Adams’s husband, Michael, bought
their home on Northcrest Circle, in New Caney, which has nine acres and a barn,
for the purpose of allowing Adams to keep horses. In 2010 or 2011, Michael then
gave her the business of “Adams Horse Ranch, Inc.,” and he instructed her to
conduct the business so that they could claim it as a tax deduction. Adams
explained that the business started with “seven to nine” horses, and that she did
well showing several of the horses during 2012 and 2013, winning ribbons for
various shows and a belt buckle. Defense counsel marked several of the ribbons
and the buckle for demonstrative purposes as Defense Exhibits 1 through 7.
15
According to Adams, things changed “when we were going through our
divorce the horses started getting into poor condition[].” Adams recalled that at one
point she was supposed to appear in court for the divorce, one horse went down
and could not get up, and as a result, she was late to the hearing. Adams testified
that she told the judge during the divorce case that she believed Michael was
poisoning the horses. According to Adams, the first horse that went down and
could not get up was named “Kiwi,” and that at some point three more horses went
down and could not get up, and those horses died.
According to Adams, her husband “had threatened to kill them in the past[]”
and “[w]hen you go through a bad divorce if a man wants to hurt you he tries to
hurt you through your kids or what you love next. And that’s my animals.” She
told the jury that one horse seemed to have a problem with a hip and was
eventually diagnosed with EPM, which she explained is a neurological condition.
Another horse dropped weight and had rectal bleeding and eventually that horse
died. She explained that the horse named Jimmy died in December, and the other
horses died in October or November.
Adams testified that, in addition to receiving “Social Security money for the
kids[,]” she worked as a certified equine appraiser, she gave riding lessons, and
worked informally as a horse broker. She denied that she used any money she
16
received from her husband to pay expenses for the horses, and she explained that
the money she received from Social Security “went straight to the horse care
because all that money was spent on the horses because that was the way I was
going to take care of them.” She testified that she had “accounts running” with
various “feed stores” because she had difficulty paying all the costs related to the
horses, and that she did not ask her sons for financial help. She also agreed that, in
her sworn application for a court-appointed attorney, the only income she reported
was from Social Security. She testified that she could not sell any of the horses
during the divorce because she was under a court order not to sell the horses until
after the divorce was final.
When asked about the fencing and whether it was chewed by the horses,
Adams explained that the horses would sometimes kick and the boards would
break, and that she did not want to spend money repairing the fence because she
knew she was not going to be able to stay on the property. Regarding the empty
water troughs, Adams explained that she liked to let the water level in the troughs
get low so she could clean them with a pressure washer before refilling them.
Adams agreed that when officers visited the property on January 31, 2014,
she had fifteen living and three dead horses. When asked why she did not bury the
17
dead horse that was in the barn, Adams replied that she could not have done it on
her own and
I would have had to call the county. And they will bury for free
because they did bury one. But I knew that because of -- trying to pick
my words again. Sorry. I knew that my ex-husband would find out
because of how tight he is with a lot of people in Montgomery County
and the officials and police officers and animal control was going to
have to come out there[.]
She explained that she was given written instructions and a timeframe in which to
comply and that she understood “that they would come back on random occasions
and I better have proof of feed and hay and I had a certain time period to have a vet
come and basically . . . to vet all the horses.” She believed she had thirty days to
comply. According to Adams, she purchased “feed” the same day she received the
instructions from Animal Control, and she also cleaned and filled the water
troughs. She testified that the officers returned “[a] day or two later[]” and she
complained to the officers because she believed she still had time to comply.
When asked if she thought she did anything wrong, Adams explained
. . . I was constantly on the phone with vets, calling other
equine professionals, talking to people on Facebook, doing all kinds
of research. I bought all kinds of medicine from my vet. I was doing
feed and hay and medicine. And I honestly believed that because he
was -- it’s already been testified as far as the tax deductions -- I
honestly believed on January 1st everything would stop. And we were
treating symptoms of the horses.
....
18
I believe that I did everything I could as far as vets, feed, and
hay.
On cross-examination, Adams agreed she did not call 911 to report that the
horses had been poisoned. She also agreed she had no physical proof that her
husband poisoned the horses. When asked to explain why she did not have a
veterinarian come to her property, she explained that her primary vet that is “an
hour and a half drive[]” away would not do a “farm call” to her property and that,
when she called that vet’s office, they told her “if you want to bring them in, you
can, but you can handle this.” Adams denied that she intentionally or knowingly
denied food or medical care to the animals.
Testimony of Benjamin Cook
Benjamin Cook (Cook) testified for the Defense. Cook indicated that he met
Adams in January of 2013, they dated for “about six months[,]” and they remained
friends. He agreed that he had personal knowledge of how she cared for her
animals when he visited her property. Cook testified that, when he first visited
Adams’s property, he saw that some of the horses had cuts or scrapes and Cook
saw Adams treat the horses’ wounds, but “at that time there [were] no horses that
had died.” Cook testified that during the summer of 2013, he helped Adams take
one of the horses to a vet. According to Cook, the “[h]orses were always fed well
when [he] was around[,]” from about April 2013 through October 2013, and that
19
“there was always feed [or] hay.” Cook also testified that on one visit to Adams’s
property, near the end of 2013, he observed a dead horse outside, and Cook
described Adams as “very upset about the death of the horses.” Cook testified that
from everything he observed he would allow Adams to care for his dogs. Cook
explained that Adams always showed concern for the horses and kept medications
for the horses in a refrigerator in the barn.
Testimony of Susan Dancer
Susan Dancer (Dancer) also testified for the defense and by agreement of the
parties her testimony was provided telephonically. Dancer has been in charge of
the Texas Blessing Animal Rescue (TBA Rescue) for about fourteen years. Dancer
explained she met Adams early in 2013 when Adams taught a training clinic held
by the TBA Rescue. Dancer denied having any personal knowledge of the
condition of horses as they existed on Adams’s property; but, Dancer also testified
that, when Adams brought four or five of her horses to a TBA Rescue event in
January of 2014, the horses were not underfed and Dancer agreed those horses
“looked more or less okay[.]” Dancer agreed it was not a “healthy practice” to have
your horses eating just a few yards from the carcasses of the dead horses.
20
Testimony of Michael Adams
The State called Michael Adams (Michael) to testify as a rebuttal witness.
Michael testified that Adams is his ex-wife, and their divorce was final on
December 3, 2013. State’s Exhibit 211, a letter to Adams written by Michael’s
attorney, was admitted into evidence over the defense’s hearsay objection. Michael
agreed that, during the pendency of the divorce, he had instructed Adams through
his attorney to sell the horses that remained on her property and that State’s Exhibit
211 communicated this instruction. Michael also agreed that the final divorce
decree awarded Adams all the horses remaining on her property. Michael did not
recall whether there was a standing order concerning property in the divorce case,
and he testified that he and Adams could have made mutual agreements between
them to sell property before the divorce became final.
Other Evidence
State’s Exhibit 177, a video of the animals and the property made on the date
the animals were seized, was admitted into evidence and published to the jury.
Numerous photographs taken at Adams’s property on or about February 5, 2014,
including photographs of the animals, were also admitted into evidence and
published to the jury.
21
COMMITMENT QUESTION DURING VOIR DIRE
In her first issue, Appellant argues that the trial court abused its discretion by
sustaining the State’s objection that a question the defense asked was an improper
commitment question. Appellant argues that, even though the question was a
commitment question, it was a proper question because it “gives rise to a valid
challenge for cause and only contains those facts necessary to test whether a
prospective juror is challengeable for cause.”
The trial court has broad discretion over the process of jury selection.
Barajas v. State, 93 S.W.3d 36, 38 (Tex. Crim. App. 2002). We review a trial
court’s ruling regarding an alleged improper commitment question under an abuse
of discretion standard. Id. In this review, our focus is on whether the Appellant
proffered a proper question regarding a proper area of inquiry. See id. A
commitment question is one that commits a prospective juror to resolve, or refrain
from resolving, an issue a certain way after learning a particular fact. See Standefer
v. State, 59 S.W.3d 177, 179 (Tex. Crim. App. 2001). However, not all
commitment questions are improper. Id. at 181. For example, an attorney may ask
a potential juror if she can consider the full range of punishment in a case. Id.
When the law requires jurors to make certain types of commitments, then the
attorneys may ask whether the jurors can follow the law. Id. Generally speaking,
22
when “the law does not require the commitment, a commitment question is
invariably improper.” Id. Accordingly, it is an impermissible commitment question
to ask a juror whether she considers a certain type of evidence to be mitigating. Id.
A question is also impermissible “if it attempts to commit the juror to a particular
verdict based on particular facts.” Barajas, 93 S.W.3d at 38 (citing Standefer, 59
S.W.3d at 181). Improper commitment questions are not allowed because we want
to “ensure that the jury will listen to the evidence with an open mind” and render a
verdict based upon the evidence. Sanchez v. State, 165 S.W.3d 707, 712 (Tex.
Crim. App. 2005).
Nevertheless, a party may be allowed to ask a question of a potential juror to
determine whether a juror may be challenged for cause because he or she possesses
a bias against the law upon which the State or defendant is entitled to rely.
Delacerda v. State, 425 S.W.3d 367, 382 (Tex. App.—Houston [1st Dist.] 2011,
pet. ref’d) (citing Tex. Code Crim. Proc. Ann. art. 35.16(b)(3) (West 2006); Mason
v. State, 116 S.W.3d 248, 255 (Tex. App.—Houston [14th Dist.] 2003, pet. ref’d)).
A party may also be entitled to explore with a potential juror whether the juror
could convict in the absence of certain physical evidence or whether the juror
would hold the State to a burden higher than beyond a reasonable doubt.
Delacerda, 425 S.W.3d at 382.
23
To determine whether a voir dire question calls for an improper commitment
the court must determine (1) whether a voir dire question is a commitment
question, (2) whether the commitment question gives rise to a valid challenge for
cause, and (3) whether the question includes only necessary facts. See Lee v. State,
206 S.W.3d 620, 621 (Tex. Crim. App. 2006) (citing Lydia v. State, 109 S.W.3d
495, 499 (Tex. Crim. App. 2003); Standefer, 59 S.W.3d at 179-82). We consider
the voir dire as a whole when determining whether a question constitutes an
improper commitment question. See Halprin v. State, 170 S.W.3d 111, 119 (Tex.
Crim. App. 2005).
During voir dire, the following exchange occurred:
[Defense Attorney]: . . . What I want to know is -- and this is just a
question, generally, just for the first row -- how many people in the
first row believe that if they see -- and this is just a general question --
if you see photos of any animals, especially horses, that you perceive
to be abused that you think you know what, I don’t think I’m going to
sit fair and impartial on this case because there may be other photos
just like that or worse, and that’s probably going to cause me to not be
very fair and impartial? Because we anticipate that they are going to
present photos of that nature.
[State’s Attorney]: Your Honor, may we approach?
THE COURT: Yes.
(Discussion at the bench, on the record)
24
[State’s Attorney]: It’s really a commitment question. If you see
evidence, photography evidence that appears horses are abused you
will find that they are abused. That is a classic commitment question.
[Defense Attorney]: Not find that they are abused. I just said would
you be fair and impartial.
THE COURT: Could you be fair and impartial? That I’m fine with
that. If you feel you could be fair and impartial. That’s fine.
[Defense Attorney]: Okay. What do you think if you see photos of
animals that the state is saying have been abused, that you see in some
way? Do you think you are going to be fair and impartial? If I see
photos that I think showed animals to be abused in some way, shape,
or form I don’t think I’m going to sit there and be impartial I’m just
going to close off --
[State’s Attorney]: Your Honor.
THE COURT: Okay. I’ll sustain the objection.
[Defense Attorney]: Again, to be fair and impartial. If you believe that
what you are looking at, that’s not going to cause you, in any way, to
give my client a fair trial? Okay. Number one, five, okay. Let’s go
number one and --
[State’s Attorney]: Your Honor, renew my objection.
THE COURT: Okay. I’m still going to sustain it.
Adams admits in her appellate brief that the question of whether jurors could
be fair and impartial after seeing photographs of abused horses is a commitment
question, but argues it was not an improper commitment question because the line
of questioning was an attempt to determine “whether they would be fair and
25
impartial if they were to see photos of any animals, especially horses, that they
perceive to be abused.” Appellant argues the questioning was proper because a
member of the panel who could not be impartial would be biased or prejudiced
against the defendant and could be challenged for cause.
The Court of Criminal Appeals has explained that neither the State nor the
defendant may ask the venire “‘under the evidence that will be introduced in this
case, would you convict the defendant?’” See Barajas, 93 S.W.3d at 39. When a
specific set of facts are supplied beyond what is necessary to sustain a challenge
for cause, it may render improper what would otherwise be a proper question.
Delacerda, 425 S.W.3d at 381 (quoting Braxton v. State, 226 S.W.3d 602, 604
(Tex. App.—Houston [1st Dist.] 2007, pet. dism’d)). The questions at issue in the
case at bar did not address a potential bias against a phase of the law but sought to
commit a juror regarding how the juror would respond in the face of specific
evidence. Compare id. at 383 (question to the venire was not improper because it
“‘did not attempt to commit the prospective jurors to a specific set of facts prior to
the presentation of evidence at trial[]’”) (quoting Braxton, 226 S.W.3d at 606).
Therefore, we conclude that the trial court did not abuse its discretion in sustaining
the objections made by the State and refusing to allow the question.
26
Nevertheless, even if the trial court erred, we subject the erroneous exclusion
of a proper question during voir dire to a harm analysis under rule 44.2(b). See
Woods v. State, 152 S.W.3d 105, 109-10 (Tex. Crim. App. 2004) (citing Tex. R.
App. P. 44.2(b); Jones v. State, 982 S.W.2d 386, 391-94 (Tex. Crim. App. 1998));
see also Easley v. State, 424 S.W.3d 535, 541 (Tex. Crim. App. 2014) (trial court’s
error in prohibiting defense counsel from asking proper questions of the venire was
non-constitutional error). “Under this analysis, a defendant is harmed only if (1) he
exhausts all of his peremptory challenges, (2) he requests more challenges, (3) his
request is denied, and (4) he identifies an objectionable person seated on the jury
on whom he would have exercised a peremptory challenge.” See Wingo v. State,
143 S.W.3d 178, 186 (Tex. App.—San Antonio 2004), aff’d, 189 S.W.3d 270
(Tex. Crim. App. 2006) (citing Anson v. State, 959 S.W.2d 203, 204 (Tex. Crim.
App. 1997)). After examining the record and applying the requisite harm analysis,
we conclude that any error by the trial court by sustaining the State’s objection and
in disallowing the question was harmless. Appellant failed to establish that she
exhausted all peremptory challenges, that she made a request for more challenges,
that her request was denied, and that she identified an objectionable person seated
on the jury on whom she would have exercised a peremptory challenge. Id. at 187
(citing Anson, 959 S.W.2d at 204); cf. Halprin, 170 S.W.3d at 118 n.7 (“Appellant
27
does not state in his brief whether he challenged these veniremembers for cause, or
whether he exercised peremptory challenges on them, or whether any of them
actually sat on his jury.”) (citing Anson, 959 S.W.2d at 204). We overrule
Appellant’s first issue.
ADMISSION OF EVIDENCE
Appellant’s remaining two issues challenge the trial court’s admission of
certain evidence. In her second issue, Appellant argues that the trial court abused
its discretion by “allowing Appellant’s son [Matthew] to testify about her mental
state over defense counsel’s objection as to speculation and qualification.”
Appellant contends that Matthew lacked the requisite personal knowledge
necessary to answer the question of whether his mother was “losing touch with
reality[.]”3 And in her third issue, Appellant argues that the trial court erred in
admitting a letter generated by Appellant’s ex-husband’s attorney, which Appellant
argues was inadmissible hearsay evidence.
We review a trial court’s decision regarding the admission of evidence for
an abuse of discretion. See De La Paz v. State, 279 S.W.3d 336, 343-44 (Tex.
Crim. App. 2009). “As long as the trial court’s ruling is within the ‘zone of
3
We note that Appellant did not object at trial, nor does she argue on appeal,
regarding a lack of foundation or to the qualification of the witness to make such a
judgment or render such an opinion.
28
reasonable disagreement,’ there is no abuse of discretion, and the trial court’s
ruling will be upheld.” Id. (quoting Montgomery v. State, 810 S.W.2d 372, 391
(Tex. Crim. App. 1991) (op. on reh’g)); State v. Mechler, 153 S.W.3d 435, 439-40
(Tex. Crim. App. 2005). If the trial court’s decision is correct on any theory of law
applicable to the case, we will uphold the decision. De La Paz, 279 S.W.3d at 344;
Osbourn v. State, 92 S.W.3d 531, 538 (Tex. Crim. App. 2002).
Complained-of Testimony from Matthew
At trial, the State questioned Matthew, Appellant’s son, concerning
Appellant’s treatment of the horses, and the following exchange occurred:
[State’s Attorney]: Would you say that during that time your mother
was losing touch with reality?
[Defense Attorney]: Objection. Calls for speculation. It’s not
qualified.
THE COURT: Overruled.
[State’s Attorney]: You can go ahead and answer the question.
[Witness Matthew]: I don’t know if she was losing touch with reality.
There was definitely a sense of desperation, holding onto any glimmer
of hope that she could make this work. She wanted to succeed. She
felt like she had something to prove to people that she could be
successful on her own, that she didn’t need a man in her life to do
these things. She was holding onto this so she could feel like she
could make it work.
29
A witness may testify to a matter of which he has personal knowledge. See
Tex. R. Evid. 602. Evidence to prove personal knowledge may consist of the
witness’s own testimony. Id. Although an individual would not have personal
knowledge of another’s mental state, it is quite another thing if the testimony is an
“interpretation of the witness’s objective perception of events (i.e. his own senses
or experience).” Fairow v. State, 943 S.W.2d 895, 899 (Tex. Crim. App. 1997); see
also Solomon v. State, 49 S.W.3d 356, 364 (Tex. Crim. App. 2001). A person may
possess “personal knowledge of facts from which an opinion regarding mental
state may be drawn.” Fairow, 943 S.W.2d at 899. A witness’s opinion testimony
will satisfy the personal knowledge requirement if it is an interpretation of the
witness’s objective perception of events. Id.; see also Osbourn, 92 S.W.3d at 535-
36 (a witness’s testimony can include opinions, beliefs, or inferences as long as
they are drawn from his own experiences or observations).
In this case, Matthew testified that Appellant is his mother, he had grown up
around Appellant and her horses, he visited her in 2013, and he personally
observed the condition of the horses. Matthew also testified that his mother asked
for his advice, he knew she was going through a divorce and she was having
problems with money, and he believed she had a drinking problem. Further,
Matthew explained he personally observed Appellant’s response when he told her
30
he was concerned about the health of the horses, and he was “shocked[]” when
Appellant told him her ex-husband was poisoning the horses.
The portion of the testimony of which Appellant complains was Matthew’s
testimony that his mother was “losing touch with reality[,]” which the trial court
could have determined was merely Mathew’s interpretation or inference based on
his personal perception of the relevant events and was rationally based on what he
had perceived. See Fairow, 943 S.W.2d at 898-900. Therefore, we cannot say the
trial court erred in overruling the objection and admitting the particular testimony.
Admission of Letter
In her third issue, Appellant argues that the trial court erred in admitting a
letter written by an attorney who was representing her ex-husband Michael. The
State argues that the letter was offered as a rebuttal to the testimony provided by
the Appellant that she could not sell her horses until after the divorce became final.
The State contends the letter was offered not for the truth of the matter asserted
therein, but to show the effect on the listener, and to rebut Appellant’s testimony
that she believed she could not sell the horses.
At trial, the State offered rebuttal testimony from Michael Adams, the
Appellant’s ex-husband.
[State’s Attorney]: Yes, Your Honor. State calls Michael Adams.
31
(Discussion at the bench, on the record)
[State’s Attorney]: May we approach? We recognize rebuttal is
narrowly tailored to specific issues. On the stand the defendant said,
“I couldn’t get rid of these horses.” She wasn’t able to sell them. Mr.
Adams is going to come in and say, also, that she may or may not be
divorced. Mr. Adams is going to come in and say, yes, they were
divorced. Yes, she had the freedom to dispose of the horses in any
way she could. And that’s all.
THE COURT: Okay.
[Defense Attorney]: Judge, if that’s the case I would like to be able to
put my client up there.
THE COURT: Yeah. You can rebut the rebuttal, but it has to be
limited in scope. Unlike other witnesses, it narrows down to what
we’re talking about [only].
....
THE COURT: Have a seat. I’m going to inform the jury what we’re
doing at this point. Normally, you hear from the state and each [party]
calls their own witnesses. This is a rebuttal witness. This testimony is
only going to be limited to rebutting testimony that’s been put forth.
After they are finished with their rebuttal the defense may call rebuttal
witnesses if they choose [to] go ahead. But now the scope is limited to
only rebuttal of evidence put on by the other side.
Go ahead.
During the State’s questioning of Michael, the State asked Michael questions
about the divorce and whether the Appellant could sell the horses during the
pendency of the divorce. The State showed Michael State’s Exhibit 211, a letter
dated June 5, 2013, from Michael’s divorce attorney addressed to Appellant,
32
wherein the attorney conveyed Michael’s proposal of the payment of certain items
pending the final decree and also Michael’s request for Appellant to sell the horses.
The defense objected to the letter on the basis that it was hearsay. The State
responded and explained that the letter was relevant to establish Appellant’s state
of mind, that “she knew she could get rid of the horses.” The court overruled the
objection and allowed the letter into evidence. Thereafter, Michael testified as
follows:
[State’s Attorney]: . . . During the pendency of your divorce, was
there ever a point where you instructed the defendant through your
attorney to sell the horses that were remaining on her property?
[Witness Michael]: Yes.
[State’s Attorney]: Is that stated in this letter that was sent to the
defendant?
[Witness Michael]: Yes.
[State’s Attorney]: Okay. Is this the part here? “Accordingly, Mr.
Adams would like to place the following items on the market for sale
as soon as possible.”
[Witness Michael]: Yes, ma’am.
“Hearsay” means a statement that the declarant does not make while
testifying at the current trial or hearing that is offered into evidence to prove the
truth of the matter asserted in the statement. See Tex. R. Evid. 801(d). If a
statement is being offered not to prove the truth of the matter asserted therein but
33
for some other basis, the statement is not hearsay. Dinkins v. State, 894 S.W.2d
330, 347 (Tex. Crim. App. 1995); Johnson v. State, 425 S.W.3d 344, 346 (Tex.
App.—Houston [1st Dist.] 2011, pet. ref’d) (“An extrajudicial statement or writing
that is offered for the purpose of showing what was said, rather than for proving
the truth of the matter stated therein, does not constitute hearsay.”). For example,
“[s]tatements offered only to show their effect on the listener are not hearsay.”
McNeil v. State, 452 S.W.3d 408, 419 (Tex. App.—Houston [1st Dist.] 2014, pet.
ref’d). This Court has previously stated: “‘The general rule then is that evidence of
written or spoken expressions when offered, not to prove the facts, if any, stated
therein, but to show as an inference therefrom, the state of mind of the person by
whom or to whom they were communicated, is not violative of the hearsay rule.’”
Traders & Gen. Ins. Co. v. Derrett, 340 S.W.2d 305, 311 (Tex. Civ. App.—
Beaumont 1960, writ ref’d n.r.e.) (quoting 1 McCormick & Ray, Texas Law of
Evidence, § 796); see also Phenix v. State, 488 S.W.2d 759, 761-62 (Tex. Crim.
App. 1972) (the rule against hearsay does not apply when an extrajudicial written
utterance is admitted for its nontestimonial value as evidence of a circumstance)
(citing 6 Wigmore on Evidence, §§ 1788-1792); Int’l Brotherhood of Boiler
Makers v. Rodriguez, 193 S.W.2d 835, 842, (Tex. Civ. App.—El Paso 1945, writ
34
dism’d) (citing McCormick & Ray, Texas Law of Evidence, § 357; 6 Wigmore on
Evidence, §§ 1788-1789).
Even if the complained-of evidence was hearsay and erroneously admitted,
we apply the standard for nonconstitutional error contained in Rule 44.2(b) of the
Texas Rules of Appellate Procedure if the trial court’s ruling merely offends the
rules of evidence. See Solomon, 49 S.W.3d at 365; Melgar v. State, 236 S.W.3d
302, 308 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d). An improper
admission of complained-of evidence is harmless when the record establishes that
essentially the same evidence is admitted elsewhere in the record without
objection. See Marshall v. State, 210 S.W.3d 618, 631 (Tex. Crim. App. 2006)
(“any error in the admission of the complained-of evidence was harmless” when
the record established appellant brought out essentially the same evidence during
his direct examination); Lane v. State, 151 S.W.3d 188, 193 (Tex. Crim. App.
2004) (court of appeals did not err in upholding trial court’s admission of victim’s
out-of-court statements where the record reflected such statements came into
evidence on eight separate occasions without objection) (citing and quoting Valle
v. State, 109 S.W.3d 500, 509 (Tex. Crim. App. 2003) (“An error [if any] in the
admission of evidence is cured where the same evidence comes in elsewhere
without objection.”)).
35
On direct examination and later during cross-examination, Michael testified
that he gave instructions through his attorney to Adams that she should sell the
horses. Such testimony was admitted without objection, and further inquiry on the
issue was reintroduced into the record during cross-examination by the defense.
Therefore, even assuming it was improper to admit the letter, the complained-of
evidence was harmless because the record establishes that essentially the same
evidence was admitted elsewhere in the record without objection. Marshall, 210
S.W.3d at 631.
Additionally, based on our review of the entire record, we have fair
assurance that any error in the admission of Matthew’s testimony concerning
Adams’s state of mind or the admission of the complained-of letter did not have a
substantial and injurious effect or influence in determining the jury’s verdict. See
Casey v. State, 215 S.W.3d 870, 885 (Tex. Crim. App. 2007). We overrule
Appellant’s second and third issues on appeal.
Having overruled all of Appellant’s issues, we affirm the judgments of the
trial court.
AFFIRMED.
_________________________
LEANNE JOHNSON
Justice
36
Submitted on September 21, 2016
Opinion Delivered November 16, 2016
Do Not Publish
Before Kreger, Horton, and Johnson, J.J.
37