                             PD 1458-15

               IN THE COURT OF CRIMINAL APPEALS

                              OF TEXAS
     _______________________________________________

                   RYAN MATTHEW STAIRHIME,
                           Appellant,

                                  v.

                   THE STATE OF TEXAS,
                         Appellee.
     _______________________________________________

On Petition for Discretionary Review from the First Court of Appeals in
No. 01-13-00493-CR affirming the conviction in cause number 1387371,
        From the 177th District Court of Harris County, Texas
     _______________________________________________

       APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
     _______________________________________________

 ORAL ARGUMENT IS NOT REQUESTED               ALEXANDER BUNIN
                                              Chief Public Defender
                                              Harris County, Texas

                                              JANI MASELLI WOOD
                                              Assistant Public Defender
                                              Harris County, Texas
                                              TBN. 00791195
                                              1201 Franklin Street, 13th Floor
                                              Houston, Texas 77002
       December 15, 2015                      Phone: (713) 368-0016
                                              Fax: (713) 368-9278

                                              Counsel for Appellant

                                              December 14, 2015
                                        TABLE OF CONTENTS
                                                                                                                PAGE

Table of Contents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Index of Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Statement Regarding Oral Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                 5

Statement of the Case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Statement of Procedural History. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Ground for Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Reason for Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Statement of Facts.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Argument

         The defense was precluded from asking an entirely proper question
         during voir dire. On remand from this Court, the Court of Appeals
         determined that Mr. Stairhime was allowed to ask the question after the
         State’s objections were erroneously sustained. However, the question
         Mr. Stairhime was allowed to ask was substantively different than the
         previous question. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

         Did the Court of Appeals err in holding that Mr. Stairhime’s substantial
         rights were not affected?. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

         Did the Court of Appeals err in holding the error almost “moot”
         because Mr. Stairhime ultimately ended up testifying?.. . . . . . . . . . . . . . . . 16

Prayer for Relief. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Certificate of Service. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18


                                                            2
Certificate of Compliance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Appendix . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Attached




                                                           3
                                              INDEX OF AUTHORITIES
                                                                                                                         PAGE

Cases:

Goodspeed v. State,
      187 S.W.3d 390 (Tex. Crim. App.2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Stairhime v. State,
       463 S.W.3d 902 (Tex. Crim. App. 2015). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Stairhime v. State,
       01-13-00493-CR, 2015 WL 6081596
       (Tex. App.—Houston [1st Dist.] Oct. 15, 2015, no. pet. h.) . . . . . . . . . 5, 14

Stairhime v. State,
       439 S.W.3d 499 (Tex. App. – Houston [1st Dist.] 2014). . . . . . . . . . . . . . . . 5

Statutes, Rules, and Miscellaneous

TEX. CODE CRIM. P. ART. 35.16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

TEX. PENAL CODE ANN. § 19.02 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

TEX. R. APP. P. 66.3(F) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Roxanne Barton Conlin & Gretchen Jenson, What, Me? Prejudiced? Absolutely Not!, Trial
20, 21 (Dec. 2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

http://www.pewresearch.org/methodology/u-s-survey-research/questionnaire-design
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 15

http://stattrek.com/statistics/dictionary.aspx?definition=Response%20bias. . . 15




                                                                 4
                    STATEMENT REGARDING ORAL ARGUMENT

       Oral argument is not requested.



                             STATEMENT OF THE CASE

       This is an appeal from the felony offense of murder. (C.R. at 261). See TEX.

PENAL CODE ANN. § 19.02. Mr. Stairhime pleaded not guilty and a jury convicted him

and sentenced him to 43 years confinement in the Institutional Division of the Texas

Department of Criminal Justice. (C.R. at 261). Timely notice of appeal was filed.

(C.R. at 266).

                    STATEMENT OF THE PROCEDURAL HISTORY

       In a published opinion, on first review, the First Court of Appeals affirmed Mr.

Stairhime’s conviction. Stairhime v. State, 439 S.W.3d 499 (Tex. App. – Houston [1st

Dist.] 2014, pdr granted). This Court granted the PDR and reversed the Court of

Appeals. Stairhime v. State, 463 S.W.3d 902 (Tex. Crim. App. 2015). On remand, the

First Court of Appeals again affirmed the conviction in an unpublished case. Stairhime

v. State, 01-13-00493-CR, 2015 WL 6081596, at *1 (Tex. App.—Houston [1st Dist.]

Oct. 15, 2015, no. pet. h.) No motion for rehearing was filed. This petition for

discretionary review is timely filed if filed on or before December 16, 2015.




                                          -5-
                               GROUND FOR REVIEW

       The defense was precluded from asking an entirely proper question
       during voir dire. On remand from this Court, the Court of Appeals
       determined that Mr. Stairhime was allowed to ask the question after the
       State’s objections were erroneously sustained. However, the question
       Mr. Stairhime was allowed to ask was substantively different than the
       previous question.

       Did the Court of Appeals err in holding that Mr. Stairhime’s substantial
       rights were not affected?

       Did the Court of Appeals err in holding the error almost “moot”
       because Mr. Stairhime ultimately ended up testifying?

                               REASON FOR REVIEW

       The First Court of Appeals has so far departed from the accepted and
       usual course of judicial proceedings, or so far sanctioned such a
       departure by a lower court, as to call for an exercise of this Court’s
       power of supervision . TEX. R. APP. P. 66.3(F).

               STATEMENT OF FACTS RELATIVE TO GROUND RAISED

Voir Dire

       During voir dire, the defense posed a question to the entire panel regarding

whether they would be biased against Mr. Stairhime if he did not testify, and polled

the panel individually for their answers (2 R.R. at 148-158). The following questions

were asked regarding whether or not the jury would hold it against Mr. Stairhime if

he did not testify:




                                         -6-
MR. GRAVES:    What I want to know, if Ryan does not take the stand, are

               you going to use that as evidence of guilt? In other words,

               do you have to hear from him?

VENIREPERSON:         No, I don’t.

MR. GRAVES:    Juror No. 2?

VENIREPERSON:         No.

MR. GRAVES:    Juror No. 3?

VENIREPERSON:         Yes, I would like to hear from him.

MR. GRAVES:    We all would like to.

VENIREPERSON:         Okay. Yeah.

MR. GRAVES:    I think we’re all in agreement we would like to hear from

               the defendant, right? Okay. And that’s fair. That’s human

               nature.

VENIREPERSON:         So you’re asking if we don’t hear from him, are we

                      going to hold that against him?

MR. GRAVES:    Exactly. In other words, do you have to hear from

               [Mr. Stairhime] to be a fair juror?

MS. MAGNESS:   Judge, I’m going to object to the form of the

               question.


                              -7-
      THE COURT:          Sustained.

      MR. GRAVES:         I’ll rephrase it.

      THE COURT:          Before you answer, sir, go ahead and rephrase that

                          question, Mr. Graves.

      MR. GRAVES:         Okay. I will. If Ryan refuses to testify, can you put

                          that aside, out of your mind and be fair?

      MS. MAGNESS:        I’m going to object again to the form of the

                          question.

      THE COURT:          Sustained.

      MR. GRAVES:         Do you have to hear from the defendant?

      MS. MAGNESS:        Again, I object to the form of the question. It’s

                          whether or not they would use it as evidence of his

                          guilt.

      THE COURT:          Sustained.

      MR. GRAVES:         Are you going to use it as evidence of his guilt if he

                          does not testify?

      VENIREPERSON:                Yes.

(2 R.R. at 149). The trial court thus effectively restricted Mr. Graves to asking a

question regarding whether jurors could follow the law in regard to Mr. Stairhime’s


                                          -8-
right to not testify, preventing him from asking the rest of the panel his proper

question regarding juror bias against Mr. Stairhime if he did not testify.

The Incident

       On the night of July 17, 2010, Ryan Stairhime picked up his girlfriend at the

time, Kelsey Wright, to take her to a get-together at a friend’s house (6 R.R. at 42-44).

The two joined friends in the front yard of the house, where they sat and drank rum

and bourbon for much of the night (6 R.R. at 44). At some point, the group also

smoked approximately two marijuana joints between them (6 R.R. at 45).

Unbeknownst to Ryan, Kelsey had also used methamphetamine that night before he

picked her up (4 R.R. at 226).

       After midnight, Ryan returned to his car to retrieve his cigarettes (6 R.R. at 46).

While inside the car, he saw Kelsey’s cell phone light up with a suggestive text

message from another man (6 R.R. at 46-47, 60). Ryan and Kelsey already had trust

issues in their relationship, as Ryan had “well-sustained evidence” that Kelsey had

cheated on him previously, and Kelsey maintained a close relationship with her

ex-boyfriend, Stephen Babb, potentially even cheating on Ryan with him (6 R.R. at

46-48). Ryan and Stephen had several run-ins in the past, with Stephen attempting

to run Ryan and a friend off the road, and drunkenly banging on Ryan and Kelsey’s

apartment door late at night (6 R.R. at 27, 49-56). Angry, intoxicated, and betrayed,


                                           -9-
Ryan confronted Kelsey and they began to argue on the front lawn (6 R.R. at 60-61).

A frustrated Ryan decided it was time for the night to end, and proceeded to take

Kelsey home (6 R.R. at 62).

      The argument continued in the car, escalating in volume as Kelsey screamed

at Ryan, and he yelled back at her (6 R.R. at 62-63). Distracted by the argument, Ryan

hit a pothole, damaging the car, and sending the right side of Kelsey’s face crashing

into the windshield (4 R.R. at 147). Ryan was forced to pull over into a nearby

Wal-Mart parking lot (4 R.R. at 147; VI R.R. at 63-64, 66). At this point events

become unclear-Kelsey claimed that Ryan hit her on the right side of her face (4 R.R.

at 138, 146, 210-11), while Ryan insisted that Kelsey began hitting him, and he

attempted to fend her off, possibly knocking her in the process (6 R.R. at 63). Ryan

and Kelsey got out of the car, and Ryan called his brother, Wesley, for help (6 R.R.

at 67). Knowing it would be some time before his brother arrived, Ryan decided to

leave, walking away from the car and Kelsey in an attempt to clear his head in the

interim (4 R.R. at 152; 6 R.R. at 67). Kelsey tried to follow, blocking his way and

insisting they continue the argument (6 R.R. at 67-69), until Ryan, fed up, grabbed her

and moved her out of his way, causing her to fall (6 R.R. at 69; 4 R.R. at 150-51).

      Kelsey finally decided to go home, and called the complainant Stephen Babb

to come pick her up at an Exxon station across the intersection from the Wal-Mart


                                         -10-
at close to 3:00 a.m. on the morning of July 18th (4 R.R. at 152). She began to walk

towards the Exxon, but before she arrived, she encountered Wesley’s girlfriend, Ann

Marie Montoya (Annie), who gave her a ride to the station and waited with her until

Stephen arrived (4 R.R. at 154-55). Annie returned to where Ryan and Wesley were

examining the car, and informed them that Stephen had arrived to pick Kelsey up (5

R.R. at 56). Ryan-already angry and betrayed, feeling like his “whole world that I just

two years spent, three years spent, was just crumbling, falling apart,” headed toward

the Exxon parking lot to confront the pair (6 R.R. at 73-74).

      The chain of events is unclear at this juncture. Kelsey claimed she was sitting

in the truck with Stephen while he consoled her when Ryan approached, and, after a

brief exchange of words, Ryan struck at Stephen, who struck back as if they were

fist-fighting (4 R.R. at 158-64). According to Ryan, he approached the truck and

spoke to Kelsey, who responded angrily, at which point Stephen slapped Kelsey and

told her to “shut the fuck up” (6 R.R. at 75), and made a threatening comment to

Ryan (6 R.R. at 76-77). Ryan had seen the fear on Kelsey’s face before when they

encountered Stephen at a restaurant (6 R.R. at 58-59), and had heard stories from

Kelsey about Stephen’s “bad side,” and how much she “hated Stephen” (4 R.R. at

127-28). Now Ryan was stunned and afraid for his girlfriend and himself (6 R.R. at




                                         -11-
80-83). Ryan saw Stephen reach for something, and, assuming it was a weapon, acted

on impulse out of fear for his and Kelsey’s safety (6 R.R. at 79-80).

      Where the versions converge is that, during the altercation between Ryan and

Stephen at the truck, Ryan pulled his pocketknife from his belt and stabbed Stephen

(4 R.R. at 164-65; 6 R.R. at 79, 81-83). Ryan then left the scene with Wesley and

Annie in their car (4 R.R. at 165; 6 R.R. at 83). Ryan turned himself in the next day

(6 R.R. at 86-87). He was formally charged with murder (C.R. at 8-9, 13).




                                         -12-
                                   ARGUMENT

      The defense was precluded from asking an entirely proper question
      during voir dire. On remand from this Court, the Court of Appeals
      determined that Mr. Stairhime was allowed to ask the question after the
      State’s objections were erroneously sustained. However, the question
      Mr. Stairhime was allowed to ask was substantively different than the
      previous question.

      Did the Court of Appeals err in holding that Mr. Stairhime’s substantial
      rights were not affected?

      Did the Court of Appeals err in holding the error almost “moot”
      because Mr. Stairhime ultimately ended up testifying?

Questions not allowed                          Questions Allowed


 In other words, do you have to hear      What I want to know, if Ryan does not
 from [Mr. Stairhime] to be a fair        take the stand, are you going to use that
 juror?                                   as evidence of guilt? In other words, do
                                          you have to hear from him?
 If Ryan refuses to testify, can you
 put that aside, out of your mind         Are you going to use it as evidence of his
 and be fair?                             guilt if he does not testify?
 Do you have to hear from the
 defendant?




                                        -13-
       Did the Court of Appeals err in holding that Mr. Stairhime’s substantial
       rights were not affected?

       The Court of Appeals determined that “Appellant’s questioning about his right

to remain silent was restricted only as to its form. Appellant was ultimately allowed

to ask the prospective jurors if they would use his failure to testily as proof of guilt.”

Stairhime v. State, 01-13-00493-CR, 2015 WL 6081596, at *3 (Tex. App.—Houston [1st

Dist.] Oct. 15, 2015, no. pet. h.). This determination presupposes that the exact same

questions were asked. That is not the case.

       The questions were actually significantly different. Mr. Stairhime’s attorney was

attempting to determine fairness - and the inquiry allowed related only to evidence.

Determining whether a juror can be fair is a proper question under the law:

       (a) A challenge for cause is an objection made to a particular juror,
       alleging some fact which renders the juror incapable or unfit to serve on
       the jury. A challenge for cause may be made by either the state or the
       defense for any one of the following reasons:

              9. That the juror has a bias or prejudice in favor of or
              against the defendant;

TEX. CODE CRIM. P. ART. 35.16.

       Although the questions were assumed to be the same by the Court of Appeals -

there is a difference:

       The choice of words and phrases in a question is critical in expressing
       the meaning and intent of the question to the respondent and ensuring



                                           -14-
      that all respondents interpret the question the same way. Even small
      wording differences can substantially affect the answers people provide.

http://www.pewresearch.org/methodology/u-s-survey-research/questionnaire-de

sign/(last logged in 12/12/2015). There is a distinct difference between whether

someone can be fair versus whether they will use something as evidence. The answers

could be very different:

      Response Bias

      In survey sampling, response bias refers to the bias that results from
      problems in the measurement process.
                                       ****
            Social desirability. Most people like to present themselves
            in a favorable light, so they will be reluctant to admit to
            unsavory attitudes or illegal activities in a survey,
            particularly if survey results are not confidential. Instead,
            their responses may be biased toward what they believe is
            socially desirable.

http://stattrek.com/statistics/dictionary.aspx?definition=Response%20bias (last

logged in 12/12/2015). Being allowed to ask whether jurors will be fair would have

allowed the defense to see whether or not jurors would admit their biases or

prejudices:

      Almost no one thinks he or she is prejudiced. In fact, we all are. Jury
      selection must be conducted in a way that reveals the subtle and
      not-so-subtle biases held by the members of the venire. Jury selection
      is a crucial element in achieving a fair result for your client. Without an
      impartial jury, the best representation and facts may not win the case.




                                         -15-
Roxanne Barton Conlin & Gretchen Jenson, What, Me? Prejudiced? Absolutely Not!, Trial

20, 21 (Dec. 2000).

       Did the Court of Appeals err in holding the error almost “moot”
       because Mr. Stairhime ultimately ended up testifying?

       Additionally, the Court of Appeals also held “any error was, if not rendered

moot, severely diminished by Appellant’s decision to testify.” Stairhime, 2015 WL

6081596, at *4. This assumes that the limitation of voir dire did not directly affect the

decision as to whether Ryan should testify or not. The defense questioned at length

about this issue - only to be thwarted. Specifically, the defense told the jury: “I think

we’re all in agreement we would like to hear from the defendant, right? Okay. And

that’s fair. That’s human nature.” (2 R.R. at 148). If the defense strategy had been for

Mr. Stairhime to testify all along - the defense surely would have told the jury that he

was going to testify. Instead, the defense asked extensive questions about the fact he

was not going to testify. The Court of Appeals determination that this diminishes the

harm is inapposite from what most likely happened. The defense was precluded from

asking whether the jurors could be fair - he was denied that basic question. This

might have been the very reason the defense felt that Mr. Stairhime needed to testify.

       When evaluating claims of ineffective assistance of counsel, courts unilaterally

reject claims when the record is “silent.” Goodspeed v. State, 187 S.W.3d 390, 392

(Tex.Crim.App.2005). Similarly, the Court of Appeals determining the issue is moot


                                          -16-
is based upon a silent record. There may or may not have been a strategy decision

based upon the erroneous trial court rulings during voir dire. There is no way to

know from the silent record whether or not the defense strategy had to change. The

Court of Appeals erred in basing part of its decision on a silent record.

       Review should be granted.

                                PRAYER FOR RELIEF

       For the reasons states above, Mr. Stairhime prays that this Court grant his

petition.



                                         Respectfully submitted,

                                         Jani Maselli Wood
                                         _______________________________
                                         JANI J. MASELLI WOOD
                                         Assistant Public Defender
                                         Harris County, Texas
                                         Jani.Maselli@pdo.hctx.net
                                         TBN. 00791195
                                         1201 Franklin Street, 13th Floor
                                         Houston, Texas 77002
                                         Phone: (713) 368-0016
                                         Fax: (713) 368-9278

                                         Attorney for Appellant
                                         Ryan Matthew Stairhime




                                         -17-
                            CERTIFICATE OF SERVICE

      Pursuant to Tex. R. App. Proc. 9.5, this certifies that on December 14, 2015,

a copy of the foregoing was emailed to Lisa McMinn, State Prosecuting Attorney, and

the Harris County District Attorney’s Office through texfile.com at the following

address:


Alan Curry
Assistant District Attorney
1201 Franklin Street, 6th Floor
Houston, TX 77002
curry_alan@dao.hctx.net

Lisa McMinn
Lisa.McMinn@SPA.texas.gov

                                             Jani Maselli Wood
                                       _________________________________
                                       JANI J. MASELLI WOOD




                                       -18-
                        CERTIFICATE OF COMPLIANCE

       Pursuant to proposed Rule 9.4(i)(3), undersigned counsel certifies that this

petition complies with the type-volume limitations of TEX. R. APP. PROC. 9.4(I)(2)(D).

1.     Exclusive of the portions exempted by TEX. R. APP. PROC. 9.4 (I)(1), this

petition contains 3304 words printed in a proportionally spaced typeface.

2.     This petition is printed in a proportionally spaced, serif typeface using

Garamond 14 point font in text and Garamond 14 point font in footnotes produced

by Corel WordPerfect software.

3      Undersigned counsel understands that a material misrepresentation in

completing this certificate, or circumvention of the type-volume limits in Tex. R. App.

Proc. 9.4(j), may result in the Court’s striking this brief and imposing sanctions against

the person who signed it.


                                                Jani Maselli Wood
                                          ____________________________
                                          JANI J. MASELLI WOOD




                                           -19-
      Appendix A

Opinion Stairhime v. State
Stairhime v. State, Not Reported in S.W.3d (2015)




                                                                     On original submission, we overruled all four issues.
                  2015 WL 6081596                                    Stairhime v. State, 439 S.W.3d 499, 504–07
    Only the Westlaw citation is currently available.                (Tex.App.—Houston [1st Dist.] 2014, pet. granted)
                                                                     (Stairhime I ). For the fourth issue, we held that Appellant
 SEE TX R RAP RULE 47.2 FOR DESIGNATION AND                          had waived any error related to the issue raised. Id. at 507.
            SIGNING OF OPINIONS.                                     Stairhime filed a petition for discretionary review of our
                                                                     judgment with respect to the fourth issue, and the Texas Court
      DO NOT PUBLISH. TEX. R. APP. P. 47.2(B).                       of Criminal Appeals granted it. Stairhime v. State, 463
                                                                     S.W.3d 902, 903 (Tex.Crim.App.2015) (Stairhime II ). The
                Court of Appeals of Texas,                           court reversed, holding the facts upon which we relied did not
                   Houston (1st Dist.).                              support a determination of waiver. Id. at 908. The court has
                                                                     remanded the case back to this Court for consideration of the
                                                                     remaining arguments in Appellant’s fourth issue. Id.
        Ryan Matthew Stairhime, Appellant
                         v.
           The State of Texas, Appellee                              We affirm.
 NO. 01–13–00493–CR | Opinion issued October 15,
                       2015                                                                   Background

                                                                     The only issue remaining for review concerns the trial court’s
On Appeal from the 177th District Court, Harris County,              restriction of Appellant’s voir dire examination. See id.
Texas, Trial Court Case No. 1387371                                  Accordingly, we provide only the relevant information for
                                                                     that issue.
Attorneys and Law Firms

Jani J. Wood, for Appellant.                                         Appellant and his girlfriend, Kelsey Wright, got into a heated
                                                                     argument on July 18, 2010. Wright called a friend and former
Carol M. Cameron, Alan Curry, Devon Anderson, for State of           boyfriend, Stephen Babb, to pick her up. When Babb arrived,
Texas.                                                               Appellant stabbed him in the chest and fled. Babb died, and
Panel consists of Chief Justice Radack and Justices Higley           Appellant was charged with murder.
and Brown.

                                                                     During voir dire at trial, Appellant’s counsel began asking the
                                                                     jury about Appellant’s right not to testily at trial. The
                                                                     following exchange occurred:
               MEMORANDUM OPINION
                                                                         [DEFENSE COUNSEL]: Juror No. 1.
Laura Carter Higley, Justice                                             VENIREPERSON: What do you want to know? You want
                                                                         to know how I feel about it?
*1 Appellant, Ryan Matthew Stairhime, was charged by
indictment with murder.1 Appellant pleaded not guilty. The
jury found him guilty and assessed punishment at 43 years’               [DEFENSE COUNSEL]: What I want to know, if Ryan
confinement. In his original brief, Appellant challenged the             does not take the stand, are you going to use that as
trial court’s (1) permitting the State to impeach the testimony          evidence of guilt? In other words, do you have to hear from
of a witness to the incident, (2) excluding his impeaching               him?
evidence of the same witness, (3) failure to include in the
application portion of the jury charge a definition present in
the abstract portion of the jury charge, and (4) restriction of          VENIREPERSON: No, I don’t.
his voir dire examination.

                                                                         [DEFENSE COUNSEL]: Juror No. 2?




                             © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                21

                                                                  -21-
Stairhime v. State, Not Reported in S.W.3d (2015)




  VENIREPERSON: No.

                                                                         [DEFENSE COUNSEL]: Do you have to hear from the
  [DEFENSE COUNSEL]: Juror No. 3?                                        defendant?


  VENIREPERSON: Yes, I would like to hear from him.                      [PROSECUTOR]: Again, I object to the form of the
                                                                         question. It’s whether or not they would use it as evidence
                                                                         of his guilt.
  [DEFENSE COUNSEL]: We all would like to.

                                                                         THE COURT: Sustained.
  VENIREPERSON: Okay. Yeah.

                                                                         [DEFENSE COUNSEL]: Are you going to use it as
  [DEFENSE COUNSEL]: I think we’re all in agreement we                   evidence of his guilt if he does not testify?
  would like to hear from the defendant, right? Okay. And
  that’s fair. That’s human nature.
                                                                         VENIREPERSON: Yes.

  VENIREPERSON: So you’re asking if we don’t hear from
  him, are we going to hold that against him?
                                                                     Appellant’s counsel then asked the remaining prospective
                                                                     jurors the same question. In total, ten prospective jurors said
  [DEFENSE COUNSEL]: Exactly. In other words, do you                 they would consider Appellant’s failure to testily as evidence
  have to hear from him to be a fair juror?                          of guilt. Nine of them were struck for cause. The tenth was
                                                                     too far down the list of jurors to have a chance of being on the
                                                                     jury panel.
  [PROSECUTOR]: Judge, Em going to object to the form
  of the question.
                                                                     During the trial, Appellant testified, both in the
                                                                     guilt-innocence phase and in the punishment phase. In the
  THE COURT: Sustained.                                              guilt-innocence phase, Appellant admitted to stabbing Babb.
                                                                     Appellant testified that he saw Babb slap Wright. According
                                                                     to Appellant, Babb then threatened him and reached for
  [DEFENSE COUNSEL]: I’ll rephrase it.                               something under his seat. Appellant claimed he became
                                                                     scared for himself and for Wright and attacked Babb as a
                                                                     result.
  THE COURT: Before you answer, sir, go ahead and
  rephrase that question, [DEFENSE COUNSEL].                                                    Voir Dire

                                                                     In his fourth issue, Appellant argues the trial court abused its
  *2 [DEFENSE COUNSEL]: Okay. I will.                                discretion by preventing Appellant from asking the jury
                                                                     questions concerning his right not to testify.

If Ryan refuses to testify, can you put that aside, out of your
mind and be fair?                                                    In its opinion, the Court of Criminal Appeals clarified that the
                                                                     State had raised other arguments for finding waiver and that
                                                                     its opinion did not dispose of those. Id. at 908 n.3. We begin,
  [PROSECUTOR]: I’m going to object again to the form of             then, by addressing the State’s remaining waiver argument.
  the question.

                                                                     Appellant argues that the trial court denied him his right to
  THE COURT: Sustained.                                              ask the jury proper voir dire questions regarding Stairhime’s

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Stairhime v. State, Not Reported in S.W.3d (2015)




right to remain silent. The State argues that Appellant failed
to preserve this issue because he did not object. In order to          Turning to the substance of the argument, we do not need to
preserve a complaint for appellate review, the record must             determine whether the trial court’s rulings were actually
show that “the complaint was made to the trial court by a              erroneous. This is because, even assuming the rulings were
timely request, objection, or motion” and that the trial court         erroneous, any error is harmless.
ruled on the complaint. Tex.R.App. P. 33.1(a).

                                                                       Even when a court finds error in a trial court’s ruling, we must
It is established in the record that the State objected multiple       review the error for harm. See Tex.R.App. P. 44.2(a)–(b). In
times to how Appellant’s questions phrased the questions               general, errors in criminal cases are divided between
about Appellant’s right to remain silent. The State appears to         constitutional errors and non-constitutional errors. See id. For
argue that, in order to preserve this issue for appeal,                constitutional errors, “the court of appeals must reverse a
Appellant was required to object to the trial court’s sustaining       judgment of conviction or punishment unless the court
the State’s objections. We find no justification for this              determines beyond a reasonable doubt that the error did not
argument. Rule 33.1 requires only that “the complaint was              contribute to the conviction or punishment.” Tex.R.App. P.
made.” Id. The trial court sustained objections to Appellant’s         44.2(a). For non-constitutional errors, any error “must be
counsel’s formulation of questions about the right to remain           disregarded” unless the error affects Appellant’s substantial
silent, requiring Appellant’s counsel to reformulate the               rights. Tex.R.App. P. 44.2(b).
question. If these rulings were erroneous, then the trial court
prevented Appellant from asking proper voir dire questions.
This is Appellant’s complaint on appeal. We hold it has been           Appellant argues that the trial court’s exclusion of his
preserved.                                                             preferred form for questioning the prospective jurors about
                                                                       his right to remain silent is constitutional error. For support,
The State also argues that the objections were raised only             Appellant relies on Jones v. State, 223 S.W.3d 379, 382–83
when Appellant’s counsel was asking Prospective Juror                  (Tex.Crim.App.2007), rev’d Easley v. State, 424 S.W.3d 535,
Number Three questions. After that, Appellant’s counsel                537, 541 (Tex.Crim.App.2014). Since Appellant wrote his
asked the remaining prospective jurors the question in the             brief, however, Jones has been overruled. See Easley, 424
form the trial court had permitted. The State indicates that, as       S.W.3d at 537, 541.
a result, any error has only been preserved as it applies to this
prospective juror and not to the panel as a whole. We                  In Easley, the Court of Criminal Appeals held that
disagree.                                                              erroneously limiting a party’s voir dire examination is
                                                                       non-constitutional unless the error “is so substantial as to
*3 For preservation of error over the admission of evidence,           warrant labeling the error as constitutional error.” Id. at 541.
there is a general rule that the party must object each time the       Here, the restrictions involved the form of questions for one
evidence is admitted.Kelly v. State, 321 S.W.3d 583, 598               general topic: the right to remain silent. The trial court did not
(Tex.App.—Houston [14th Dist.] 2010, no pet.). When a trial            exclude questioning on this topic in its entirety, just in the
court has just overruled the objection, however, the objecting         form of the question. We hold that any error in this restriction
party is not required to constantly repeat the objection when          is not so substantial as to warrant labeling the error as
repeated objections would be futile. Id.; see also Graham v.           constitutional. See id.
State, 710 S.W.2d 588, 591 (Tex.Crim.App.1986) (holding
complaining party is not required to make futile repeated              For non-constitutional error, we must disregard the error
objections once it is clear trial court has made testimony             unless the error affect’s the party’s substantial rights.
admissible); Cardenas v. State, 787 S.W.2d 160, 162                    Tex.R.App. P. 44.2(b). In determining whether an error
(Tex.App.—Houston [1st Dist.] 1990, pet. ref’d) (holding               affected a party’s substantial rights, we must
party is not required to make futile objections after trial court
has just overruled valid objection). We see no reason to create              consider everything in the record, including
a different rule here. If the trial court found the formulation              any testimony or physical evidence admitted
objectionable for one prospective juror, there is no reason to               for the jury’s consideration, the nature of the
conclude the trial court would have found it acceptable for                  evidence supporting the verdict, the character
any other prospective juror. Repeating the same excluded                     of the alleged error and how it might be
questions to all 100 prospective jurors would have been                      considered in connection with other evidence
duplicative and futile. We hold the objection has been                       in the case, the jury instructions, the State’s
preserved for all prospective jurors.                                        theory and any defensive theories, closing


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Stairhime v. State, Not Reported in S.W.3d (2015)




      arguments, voir dire, and whether the State
      emphasized the error.
                                                              All Citations
Easley, 424 S.W.3d at 542 (internal quotations
omitted).                                                     Not Reported in S.W.3d, 2015 WL 6081596


As we have noted, Appellant’s questioning about his
right to remain silent was restricted only as to its
form. Appellant was ultimately allowed to ask the
prospective jurors if they would use his failure to
testily as proof of guilt. Ten of the prospective jurors
said yes. Nine of those were struck for cause. The
last had no chance of being on the panel.

*4 Significantly, Appellant testified at trial. Even
assuming Appellant’s other question formats could
have elicited further bias against a defendant who
does not testify, any error was, if not rendered moot,
severely diminished by Appellant’s decision to
testily. The only party to emphasize the topic of the
right to remain silent was Appellant. During closing
argument, Appellant’s counsel emphasized that
Appellant took the stand. Specifically, his counsel
argued, “One thing about Ryan, he took the stand.
He wanted to. He’s wanted to tell his side since this
happened.”

Finally, the weight of the evidence against him
further diminishes any harm Appellant may have
suffered. During his testimony, Appellant admitted
to stabbing Babb. The main dispute between the
parties involved whether Appellant acted in
self-defense. Appellant was the only witness to
present evidence suggesting he was acting in
self-defense. The jury necessarily rejected this claim.
Limitations on questions about the right to remain
silent during voir dire were not likely to have
impacted the jury’s determination of credibility
about self-defense when Appellant actually did
testify.


Considering the record as a whole, we hold any error
in the trial court’s restrictions on questioning the
prospective jurors about the right to remain silent did
not affect Appellant’s substantial rights. We overrule
Appellant’s fourth issue.


                     Conclusion

We affirm the judgment of the trial court.


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Stairhime v. State, Not Reported in S.W.3d (2015)




Footnotes

1      See Tex. Penal Code Ann. § 19.02(b) (Vernon 2011).


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