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AppeAjdi.
COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
APRIL 30, 2015
NO. 12-13-00333-CR
WILBERT WALKER,
Appellant
V.
THE STATE OF TEXAS,
Appellee
Appeal from the 349th District Court
of Houston County, Texas (Tr.Ct.No. 12CR-115)
THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court
below for observance.
Greg Neeley, Justice.
Panel consisted ofWorthen, C.J., Hoyle, J., and Neeley, J.
NO. 12-13-00333-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
WILBERT WALKER, § APPEAL FROM THE 349TH
APPELLANT
V. § JUDICIAL DISTRICT COURT
THE STA TE OF TEXAS,
APPELLEE § HOUSTON COUNTY, TEXAS
=___ OPINION __^_=
Wilbert Walker appeals his conviction for possession of a controlled substance. He raises
four issues on appeal. We affirm.
Background
A Houston County grand jury returned an indictment against Appellant that alleged he
committed the offense of possession of a controlled substance, namely, cocaine. The indictment
further alleged that Appellant was an habitual offender. Appellant pleaded "not guilty," and a jury
trial was held. The jury found Appellant guilty, found the State's allegations that Appellant was
an habitual offender "true," and assessed punishment at seventy-five years of imprisonment. This
appeal followed.
Potential Juror Statement
In his first issue, Appellant contends that the trial court erred by refusing to quash the jury
panel after a potential juror made a remark relating to his being incarcerated in the past. Because
the juror's remark was made before the entire jury panel, Appellant contends he was denied his
right to an impartial jury.
Standard of Review and Applicable Law
We review a trial court's denial of a motion to quash the venire for an abuse of discretion.
See Mendoza v. State, 552 S.W.2d 444, 447 (Tex. Crim. App. 1977). An abuse of discretion
occurs when a trial court's decision is so clearly wrong that it lies outside the zone of reasonable
disagreement. See Gonzalez v. State, 117 S.W.3d 831, 839 (Tex. Crim. App. 2003).
Among the most precious rights afforded an accused is the right to be tried before an
impartial jury with the presumption of innocence fully intact and free of prejudice. Culverson v.
State, 755 S.W.2d 856, 859 (Tex. Crim. App. 1988) (citations omitted). The presumption of
innocence is a fundamental right, and "its enforcement lies at the foundation of the administration
of our criminal law." Taylor v. Kentucky, 436 U.S. 478, 483, 98 S. Ct. 1930, 1933, 56 L. Ed. 2d
468 (1978); Ex parte Clark, 545 S.W.2d 175, 177 (Tex. Crim. App. 1977).
The jury selection process is designed to insure that an intelligent, alert, disinterested,
impartial, and truthful jury will perform the duty assigned to it. Armstrong v. State, 897 S.W.2d
361, 363 (Tex. Crim. App. 1995). An impartial jury is one that does not favor a party or
individual due to the emotions of the human mind, heart, or affections. See Durrough v. State,
562 S.W.2d 488, 490 (Tex. Crim. App. 1978).
When a potential juror makes a possibly prejudicial statement in front of the entire panel,
the appellant must show harm by demonstrating that (1) other members of the panel heard the
remark, (2) potential jurors who heard the remark were influenced to the prejudice of the
appellant, and (3) the juror in question or some other juror who may have had a similar opinion
was forced upon the appellant. See Callins v. State, 780 S.W.2d 176, 188 (Tex. Crim. App.
1989); Sledge v. State, No. 12-11-00026-CR, 2012 WL 3104392, at *6 (Tex. App.—Tyler 2012,
pet. ref d) (mem. op., not designated for publication).
Jury Selection
During the beginning of jury selection, the trial court asked the members of the panel who
knew or thought they knew Appellant to identify themselves. After they were identified, the trial
court questioned each potential juror regarding their relationship with Appellant and whether their
relationship would affect his or her ability to be fair. During this phase of questioning, potential
juror number four testified that she remembered Appellant from twenty years ago. When asked
whether she could be fair, she stated, "Well, I really don't know. He was in and out, you know,
locked up and I don't—we were in business and when he wasn't locked up, you know, he traded
with us." The trial court gave no instruction to disregard potential juror number four's statement.
Thereafter, the trial court discussed the burden of proof, the presumption of innocence, and the
defendant's right not to testify.
In its voir dire, the prosecutor discussed mens rea, possession, witness credibility, drug
dealers, drug users, the burden of proof, and factors applicable to determining punishment. The
prosecutor informed the panel that the jurors selected to serve on the jury would determine
Appellant's punishment if he was found guilty. The following discourse then took place:
Prosecutor: What's something you would want to know before you decide how much punishment
he should get?
Potential Juror: I would like to know his criminal history.
Prosecutor: Bingo. Everybody wants to know what their criminal history is.
Ladies and gentlemen, that may or may not be admissible in the guilt/innocence phase.
And why not? Because you don't—you don't want to look at what he's done and say,
"Well, since he's done all that, he probably did this."
Potential Juror: Right.
Prosecutor: The only issue at the guilt/innocence phase is did he do this? Have we proved to you
beyond a reasonable doubt that on December 14, 2011, he was in possession of cocaine?
That is the only issue. Then and only then, if you decide he was, you go to his punishment.
And then you get to hear, if there is any—I'm not implying that there is, but then and only
then do you get to hear criminal history....
At no point during the State's voir dire did anyone refer to potential juror number four's comment
about Appellant's being "in and out ofjail," or mention that he had a criminal history.
Defense counsel first discussed the presumption of innocence in his voir dire. He asked
the panel who believed Appellant was innocent when they walked into the courtroom. The record
indicates several potential jurors raised their cards. It is unclear how many potential jurors
answered defense counsel's question affirmatively, but several explained their reasoning upon
further questioning. Defense counsel also discussed mens rea, the Dallas County District
Attorney's Office and the innocence project, the potential jurors' opinions regarding the
imprisonment of innocent persons, the burden of proof, and the credibility of police officer
testimony. At no point during defense counsel's voir dire, did anyone mention Appellant's
criminal history.
Discussion
A statement that makes a jury panel aware of a defendant's prior criminal history is
inherently prejudicial. Abdnor v. State, 871 S.W.2d 726, 738 (Tex. Crim. App. 1994) (admission
of extraneous offenses prejudices defendant because ofjury's "natural inclination to infer guilt" to
charged offense). But the constitutional right to an impartial jury is not violated by every error.
Jones v. State, 982 S.W.2d 386, 391 (Tex. Crim. App. 1998). This is because there is no
presumption that a defendant is denied due process and an impartial jury when a jury panel has
been exposed to his criminal history. See Murphy v. Florida, 421 U.S. 794, 799-800, 95 S. Ct.
2031, 2036, 44 L. Ed. 2d 589 (1975) (holding that qualified jurors need not be "totally ignorant,"
and that "to hold that the mere existence of any preconceived notion as to the guilt or innocence of
an accused, without more, is sufficient to rebut the presumption of a prospective juror's
impartiality would be to establish an impossible standard.") (citations omitted).
Here, the potential juror's statement illustrated that Appellant's criminal history was
remote (her knowledge was based on business dealings from twenty years ago). The record does
not show that the potential jurors who heard that Appellant had been "in and out of jail" were
influenced to Appellant's prejudice. See Callins, 780 S.W.2d at 188. Moreover, the record does
not show that potential juror number four or some other potential juror who may have shared a
similar opinion was forced upon Appellant. See id. To the contrary, the trial court granted all but
one of defense counsel's challenges for cause, and among those granted challenges was potential
juror number four.
Here, potential juror number four's statement did not amount to a structural error, negating
a showing of harm. See Schmutz v. State, 440 S.W.3d 29, 35 (Tex. Crim. App. 2014) ("A
structural error affects the framework within which the trial proceeds[.]"). Only a narrow line of
cases have reversed a conviction based on structural error, and we are aware of none that have
reversed due to a potential juror's statement during jury selection. See Johnson v. U.S., 520 U.S.
461, 468-69, 117 S. Ct. 1544, 1549-50, 137 L. Ed. 2d 718 (1997) (listing cases involving
structural error: total deprivation of right to counsel, lack of impartial trial judge, unlawful
exclusion of grand jurors of defendant's race, denial of right to self-representation at trial, right to
public trial, erroneous reasonable-doubt instruction to jury) (citations omitted); Gonzales v. State,
994 S.W.2d 170, 171 n.4 (Tex. Crim. App. 1999). Thus, there must be a showing of harm in
order to determine whether Appellant was deprived of his right to trial by a fair and impartial jury.
See Callins, 780 S.W.2d at 188.
Appellant did not show, as required by Callins, that he was harmed by potential juror
number four's statement. See id. We conclude that the trial court did not abuse its discretion by
denying trial counsel's motion to quash the jury panel. See Mendoza, 552 S.W.2d at 447.
Accordingly, we overrule Appellant's first issue.
Preservation of Error
In his second issue, Appellant contends that the trial court erred by admitting cocaine from
an extraneous offense during the punishment phase of trial. The State contends that the error was
not properly preserved.
Applicable Law
Error preservation is a threshold issue because challenges to the propriety of trial court
rulings must be preserved for appeal. Moore v. State, 371 S.W.3d 221, 225 (Tex. Crim. App.
2012); Mays v. State, 285 S.W.3d 884, 889 (Tex. Crim. App. 2009) (holding that error
preservation is "systemic requirement"). Failure to present a timely and specific request,
objection, or motion to the trial court for a ruling results in forfeiture of the right to present the
claim on appeal. See Tex. R. App. P. 33.1; Mendez v. State, 138 S.W.3d 334, 341-42 (Tex. Crim.
App. 2004). The requirement that complaints be raised in the trial court (1) ensures that the trial
court will have an opportunity to prevent or correct errors, thereby eliminating the need for a
costly and time-consuming appeal and retrial; (2) guarantees that opposing counsel will have a
fair opportunity to respond to complaints; and (3) promotes the orderly and effective presentation
of the case to the trier of fact. Gillenwaters v. State, 205 S.W.3d 534, 537 (Tex. Crim. App.
2006); Stinecipher v. State, 438 S.W.3d 155, 159 (Tex. App.—Tyler 2014, no pet.).
In determining whether an objection is sufficiently clear to provide an opportunity to
correct the purported error, the appellate court should consider the context in which the complaint
was made and the parties' understanding of the complaint at the time. Ford v. State, 305 S.W.3d
530, 533 (Tex. Crim. App. 2009). Moreover, an issue on appeal must comport with the objection
made at trial, i.e., an objection stating one legal basis may not be used to support a different legal
theory on appeal. See Clark v. State, 365 S.W.3d 333, 339 (Tex. Crim. App. 2012); Rezac v.
State, 782 S.W.2d 869, 870 (Tex. Crim. App. 1990). When an appellant's trial objection does not
comport with his argument on appeal, he has forfeited his right to raise the issue. See Clark, 365
S.W.3d at 339; Goffv. State, 931 S.W.2d 537, 551 (Tex. Crim. App. 1996).
Discussion
In his brief, Appellant argues that the trial court erred in admitting cocaine from an
extraneous offense during the punishment phase of the trial because the State did not prove
beyond a reasonable doubt that he committed the offense. But at trial, defense counsel's objection
to the admission of the cocaine was "I'm going to object to chain of custody and for
authentication."
At the time of defense counsel's objection, testimony regarding Appellant's involvement
in the controlled buy of the cocaine had already been presented. At no point did defense counsel
lodge an objection regarding the State's burden of proof as it pertains to the admission of
extraneous offense evidence. It cannot be said that the State or the trial court understood
Appellant's objection was related to the State's burden of proof for extraneous offenses during the
punishment phase of trial. See Ford, 305 S.W.3d at 533.
Appellant's argument on appeal does not comport with his objection at trial. See Clark,
365 S.W.3d at 339. Thus, he has forfeited his right to raise this issue on appeal. See Tex. R. App.
P. 33.1; Goff, 931 S.W.2d at 551. Accordingly, we overrule Appellant's second issue.
Motion to Suppress
In his third issue, Appellant contends that the trial court erred by denying his motion to
suppress. He argues, "[T]he search that disclosed the cocaine was constitutionally unreasonable."
Standard of Review and Applicable Law
Appellate review of a trial court's ruling on a motion to suppress is ordinarily limited to
the record at the time of the suppression hearing. Turrubiate v. State, 399 S.W.3d 147, 150-51
(Tex. Crim. App. 2013). But when, as here, the suppression issue has been consensually re-
litigated by the parties during trial, our review may include evidence adduced at trial. Zt/. at 151.
A warrantless search is "per se unreasonable subject only to specifically established and
well-delineated exceptions." See Rayford v. State, 125 S.W.3d 521, 528 (Tex. Crim. App. 2003).
A search conducted with the consent of the suspect is one such exception, as long as it is
voluntary. Id.
Voluntariness is determined by analyzing the totality of the circumstances of the situation
from the view of an objectively reasonable person, without regard for the subjective thoughts or
intents of either the officer or the citizen. Tucker v. State, 369 S.W.3d 179, 185 (Tex. Crim. App.
2012); Meekins v. State, 340 S.W.3d 454, 459 (Tex. Crim. App. 2011). In determining
voluntariness, the ultimate question is whether the person's "will has been overborn and his
capacity for self-determination critically impaired," such that his consent to search must have
been involuntary. Id.
The voluntariness of a person's consent is a question of fact that the state must prove by
clear and convincing evidence. Valtierra v. State, 310 S.W.3d 442, 448 (Tex. Crim. App. 2010).
A trial court's finding of voluntary consent is reviewed for abuse of discretion, and must be
accepted on appeal unless it is clearly erroneous. Meekins, 340 S.W.3d at 460.
The Evidence
Officer Alfrado Fajardo testified during the hearing on Appellant's motion to suppress and
during trial. His testimony at trial showed that it was after 11:00 p.m. when he conducted a traffic
stop of Appellant's vehicle because its taillights were not turned on. While Appellant was looking
for his driver's license and insurance, Officer Fajardo asked him where he and his passenger were
going. Appellant "kind of hesitated for a second . . . and then he sa[id], 'We're going to the
bank.'" Officer Fajardo testified that it seemed "odd" that the two men would be going to the
bank so late in the evening. He also explained that the way Appellant answered him made him
question Appellant's truthfulness.
The video from Officer Fajardo's patrol car was played at trial. The video shows that after
receiving the passenger's identification, Officer Fajardo told Appellant that he was going to issue
a warning, and asked Appellant to exit the vehicle to look over some paperwork.1 Once Appellant
was outside the vehicle, Officer Fajardo asked Appellant whether he had anything on him that he
was not supposed to have. Appellant responded, "No," and Officer Fajardo asked, "Nothing
whatsoever?" Appellant responded by mumbling something. At trial, Officer Fajardo testified
that it sounded as if Appellant had stated, "[N]othing but some cigarettes."
The video shows that as Appellant was walking towards the back of his vehicle, Officer
Fajardo asked him, "Do you care if I pat you down real quick?" Appellant responded by stating
1The video also shows that prior to Officer Fajardo's conductingthe traffic stop, the taillights on Appellant's
vehicle were not illuminated.