


BRIAN MILLSAP V. SHOW TRUCKS USA, INC.



NO. 07-06-0352-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL B

JANUARY 18, 2007
______________________________

ROBERTO RODRIGUEZ,


			Appellant


v.

THE STATE OF TEXAS, 


			Appellee

_________________________________

FROM THE 251st DISTRICT COURT OF RANDALL COUNTY;

NO. 15,828-C; HON. PATRICK A. PIRTLE, PRESIDING
_______________________________

ABATEMENT AND REMAND
__________________________________

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
	Roberto Rodriguez (appellant) appeals his criminal conviction.  Per an extension of
the deadline previously granted him, his appellate brief was due by December 27, 2006. 
Yet, it has not been received to date.  This court informed appellant of this circumstance
by letter dated January 4, 2007, and told him that unless a brief or response to our letter
was received by the Court "on or before Tuesday, January 16, 2007, the appeal will be
abated to the trial court."  January 16th passed without appellant filing either a brief or
response to our January 4th letter.  
	Consequently, we abate the appeal and remand the cause to the 251st District
Court of Randall County (trial court) for further proceedings.  Upon remand, the trial court
shall immediately cause notice of a hearing to be given and, thereafter, conduct a hearing
to determine the following:
	1.	whether appellant is indigent; 

	2.	whether appellant desires to prosecute the appeal; and

	2.  	whether appellant has been denied the effective assistance of
counsel due to appellate counsel's failure to timely file an appellate
brief.  See Evitts v. Lucey, 469 U.S. 387, 394, 105 S. Ct. 830, 834-35,
83 L. Ed.2d 821, 828 (1985) (holding that an indigent defendant is
entitled to the effective assistance of counsel on the first appeal as of
right and that counsel must be available to assist in preparing and
submitting an appellate brief).

	We further direct the trial court to issue findings of fact and conclusions of law
addressing the foregoing subjects.  Should the trial court find that appellant desires to
pursue the appeal, is indigent, and has been denied effective assistance of counsel, we
further direct it to appoint new counsel to assist in the prosecution of the appeal.  The
name, address, phone number, telefax number, and state bar number of the new counsel,
if any, who will represent appellant on appeal must also be included in the court's findings
of fact and conclusions of law.  Furthermore, the trial court shall also cause to be
developed 1) a supplemental clerk's record containing the findings of fact and conclusions
of law and 2) a reporter's record transcribing the evidence and argument presented at the
aforementioned hearing.  Additionally, the trial court shall cause the supplemental clerk's
record to be filed with the clerk of this court on or before February 20, 2007.  Should
additional time be needed to perform these tasks, the trial court may request same on or
before February 20, 2007.
	It is so ordered.
							Per Curiam
Do not publish.

pective juror to resolve or refrain from resolving any issue because a juror
could be fair and still take into account the victim's status as a nun as it might be logically
relevant to the issues or decline to do so if that status should not be controlling. 
Standefer, 59 S.W.3d at 180.  
  In the case at bar, counsel stated that he wished to inform the jurors that the victim
was a two-week-old child and to ask them "whether that fact would have any effect on their
verdict, whether it be on guilt-innocence or on punishment."  Thus, the dilemma with which
we are faced is whether this question, standing alone, is merely asking if the prospective
juror can be fair and unbiased or whether it is requiring the prospective juror to resolve or
refrain from resolving an issue in the case.   
	A person may be challenged for cause if he has a bias or prejudice in favor of or
against the defendant.  Tex. Code Crim. Proc. Ann. art. 35.16(a)(9) (Vernon 1989).  The
Court of Criminal Appeals has previously held that, even if a venire person has a bias or
prejudice, if the record as a whole shows that the venire person can set aside his
preconceptions, there is no abuse of discretion in refusing to grant a challenge for cause. 
Garcia v. State, 887 S.W.2d 846, 857-58 (Tex.Crim.App. 1994), cert. denied, 514 U.S.
1005, 115 S.Ct. 1317, 131 L.Ed.2d 198 (1995).  A juror may also be challenged for cause
if he has established in his mind such a conclusion as to the guilt or innocence of the
defendant that it would influence his verdict.  Tex. Code Crim. Proc. Ann. art. 35.16(a)(10)
(Vernon 1989).  In that situation, the juror is to be asked whether his conclusion will
influence his verdict and if he answers in the affirmative, he shall be discharged.  Id.  
 	Although we believe that, upon an affirmative response to the question posed,
additional questioning might reveal that the prospective juror could set aside whatever
personal prejudices he may have as a result of the victim being so young and follow the
instructions of the court and the law, or establish that the juror has not, in fact, reached a
conclusion as to guilt or innocence,  the new rule set out by the Court of Criminal Appeals
does not appear to permit the initial question.  If the fact the victim is a two-week-old child
will "affect" the verdict either on guilt, innocence or as to punishment, the question would
presumably require as a possible answer that the prospective juror resolve or refrain from
resolving an issue in the case.
	Therefore, in line with our understanding of the court's holding in Standefer, we find
no reversible error in the trial court refusing to allow the defense to ask the question
posed.  We thus overrule appellant's first issue.  
	In our original opinion, we did not address appellant's remaining two issues
because of our disposition of appellant's first issue.  We are now called upon to address
those issues in which appellant complains the trial court erred in misdirecting the jury in
the jury charge and improperly admitting evidence of a juvenile conviction.  In his second
issue, appellant argues that paragraph 2 of the second count of the indictment, which
purports to allege felony murder, is defective because it does not specify a perpetrator or
a date within the limitations period.  Therefore, he contends, because the trial court
charged the jury on felony murder and they returned a general verdict, they may have
returned a verdict on an invalid indictment paragraph.  
	The State responds that article 21.24(c) of the Code of Criminal Procedure provides
that a count is sufficient if any one of its paragraphs is sufficient.  Thus, because
paragraphs 1 and 3 of the second count are sufficient in alleging a perpetrator and a date,
so is paragraph 2.  Furthermore, it argues, appellant has waived his complaint because
he did not object before the date of trial by filing a motion to quash the indictment. (2) 
	While appellant asserts that a defect in one count may not be cured by
incorporating the allegations of another count of the indictment by reference, the State is
not contending that any defects in paragraph 2 are cured by the allegations in another
count, but by the allegations in other paragraphs of the same count in which appellant is
named as the perpetrator and the date of July 2, 1996, is set forth as the offense date. 
Article 21.24 of the Code of Criminal Procedure provides:
	(a) Two or more offenses may be joined in a single indictment, information,
or complaint, with each offense stated in a separate count, if the offenses
arise out of the same criminal episode, as defined in Chapter 3 of the Penal
Code.

	(b) A count may contain as many separate paragraphs charging the same
offense as necessary, but no paragraph may charge more than one offense.

	(c) A count is sufficient if any one of its paragraphs is sufficient.  An
indictment, information, or complaint is sufficient if any one of its counts is
sufficient.

Tex. Code Crim. Proc. Ann. art. 21.24 (Vernon 1989).  
	A count charges the offense itself and a paragraph is a portion of the count which
charges the method of committing the offense.  Helmus v. State, 397 S.W.2d 437, 439-40
(Tex.Crim.App. 1965); Renfro v. State, 827 S.W.2d 532, 535 (Tex.App.--Houston [1st Dist.]
1992 , pet. ref'd); Romine v. State, 722 S.W.2d 494, 500-01 (Tex.App.--Houston [14th Dist.]
1986, pet. denied).  In this instance, the State waived the first count and proceeded only
on the second count of the indictment.  In that count, in three separate paragraphs, the
State alleged that appellant (1) with intent to cause serious bodily injury to an individual
committed an act clearly dangerous to human life by striking the victim about the head and
body with a hard object being his hand thereby causing death, (2) while in the course of
the commission of the felony offense of injury to a child committed an act clearly
dangerous to human life by striking the victim with a hard object being his hand and hands
and by shaking him thereby causing death, and (3) with intent to cause serious bodily
injury committed an act clearly dangerous to human life by striking the victim with a hard
object being his hand and hands and by shaking the victim thereby causing death.  These
are three different methods of committing the offense of murder.  See Tex. Pen. Code Ann.
§ 19.02(b) (Vernon 1994). 
	We do not believe the indictment was defective by its failure to allege the
perpetrator and date in paragraph 2, since those items are presented in the other
paragraphs of the same count.  Even if the indictment was defective, appellant failed to
object to the defect, error, or irregularity of form or substance before the date on which the
trial on the merits commences.  See Tex. Code Crim. Proc. Ann. art. 1.14(b) (Vernon Supp.
2002).      
	Appellant appears to concede that article 21.24 may save the indictment from a
motion to quash based on a defective paragraph; however, he posits that the court still
may not charge the jury on the defective paragraph.  In support, he relies on Cumbie v.
State, 578 S.W.2d 732 (Tex.Crim.App. 1979), overruled on other grounds by Almanza v.
State, 686 S.W.2d 157 (Tex.Crim.App. 1984), in which the court held that the charge may
not authorize conviction on a theory not alleged in the indictment because it would permit
conviction on proof different from that required to prove the allegations in the indictment.
Id. at 734.  However, in this instance, the only difference in the proof required to prove the
allegations in the indictment with respect to felony murder and those in the charge are the
identity of appellant and the date of the offense.  Moreover, the other two paragraphs in
the count, which alleged different means of committing the same offense of murder and on
which the jury was also charged, provided those facts.  Appellant's second issue is
overruled.
	In his third issue, appellant claims error on the part of the trial court in admitting 
evidence during the punishment phase of an adjudication of juvenile delinquency by
commission of a misdemeanor.  The gist of appellant's argument is that article 37.07 § 3(i)
of the Code of Criminal Procedure does not permit the introduction of evidence of an
adjudication for conduct that is a violation of a misdemeanor punishable by confinement
in jail if the conduct upon which the adjudication is based occurred prior to January 1,
1996.  Because appellant's delinquent conduct occurred in 1992, he thus claims error on
the part of the trial court. 
	To preserve a complaint for review, the record must show that the complaint was
made to the trial court by a timely request, objection, or motion that stated the grounds for
the ruling with sufficient specificity to make the trial court aware of the complaint unless
the specific grounds are apparent from the context.  Tex. R. App. P. 33.1(a)(a).  At the time
the evidence was offered, there was no objection on the part of appellant.  In fact,
appellant specifically stated that he had no objection to the introduction of the evidence. 
Therefore, he has failed to preserve any complaint for review, and his third issue is
overruled.
	In summary, we overrule all of appellant's issues and, having found no reversible
error, affirm the judgment of the trial court.  

							John T. Boyd
							 Chief Justice

Publish.
NO. 07-97-0347-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL D

APRIL 16, 2002
______________________________

RONNIE FREEMAN,


		Appellant
 v.


THE STATE OF TEXAS, 



		Appellee
_________________________________


FROM THE 140TH DISTRICT COURT OF LUBBOCK COUNTY;


NO. 96-422758; HON. JIM BOB DARNELL, PRESIDING

_______________________________


ON REMAND FROM COURT OF CRIMINAL APPEALS

Before BOYD, C.J., and QUINN and REAVIS, J.J.
Dissent
	I respectfully dissent and conclude that the court's original opinion drafted by Chief
Justice Boyd was and is correct.  In sum, the trial court erred in prohibiting appellant from
assessing whether the potential jurors could be fair and unbiased (as required by law)
irrespective of the age of the victim.  Furthermore, the recent opinion by a bare majority
of the court in Standefer v. State, 59 S.W.3d 177 (Tex. Crim. App. 2001) does not
persuade me otherwise.  Rather it reinforces my conclusion.  Admittedly, that writing
purports to establish a bright-line rule to be applied when determining whether a question
propounded to the jury venire constitutes an impermissible commitment question.  I too
admit that it overruled precedent of the Court of Criminal Appeals, i.e. Maddux v. State,
862 S.W.2d 590 (Tex. Crim. App. 1993), upon which we relied in issuing our original
opinion and judgment.  Yet, in remanding the cause before us "for reconsideration in light
of Standefer," the Court of Criminal Appeals did not say that our original opinion and
judgment were wrong.  Nor did it purport to suggest that it believed that Standefer required
a different result. (3)  Instead, I read it as obligating me to conclude as I do.
 In Standefer, the court did not purport to affect the need for fair and impartial juries. 
Rather, it sought to further regulate the procedure utilized to assess partiality and bias. 
And, in doing so, it acknowledged that not all commitment queries propounded during voir
dire are impermissible.  Instead, the propriety of the question depends upon two criteria,
according to the court.  The first concerns whether the question is one actually seeking
some commitment from the prospective juror; that is, it must seek a commitment from the
potential jurors to act in a certain manner depending upon their resolution of the factual
hypotheticals contained in the question.  Standefer v. State, 59 S.W.3d at 183.  The
second involves whether the inquiry includes facts other than those necessary to develop
or establish a valid basis to challenge the respondent for cause.  Id. (4)  With this said, I turn
to the circumstances at bar.
	The question appellant endeavored to ask is contained in a bill of exception
developed before the trial court.  As illustrated by that bill, appellant "wished to inform the
jurors that the victim . . . was a two-week old child" and "wanted to ask [them] . . . whether
that fact would have any affect on their verdict, whether it be on guilt-innocence or on
punishment."  Obvious from this is appellant's reason for asking the question.  He simply
wanted to know 1) whether the jurors could remain fair and unbiased and 2) follow the law,
despite the victim's age.  It goes without saying that both the State and defendant were
and are entitled to fair and impartial jurors capable of following the law and overcoming
personal bias and prejudice.  See Dinkins v. State, 894 S.W.2d 330, 344-45 (Tex. Crim.
App. 1995) (stating that a venireman is subject to challenge by either the State or
defendant if he is unable to follow the law); Ransom v. State, 630 S.W.2d 904, 908 (Tex.
App.-Amarillo 1982, pet. ref'd.) (recognizing that litigants in a criminal proceeding are
guaranteed a fair and impartial jury).  And, appellant wanted to assure that the body
adjudging him met that criteria.
	Next, I assume arguendo that asking veniremen whether the age of the victim could
affect their decision viz-a-viz guilt or punishment is a commitment question.  Indeed, some
could possibly say that it constitutes effort to "set the hypothetical parameters for [the
juror's] . . . decision making," and, that is all the Standefer majority required to satisfy the
first prong of the test.  Id. at 180.  Instead, my focus lies upon three other indicia.  They
are: 1) a possible answer to the question; 2) the relationship of the answer to the
respondent's ability to legally serve on a jury; and, 3) whether the facts mentioned in the
query were solely those needed to render the venireman objectionable.  As to the possible
answer to the question, it is "yes."  Next, in answering "yes," the venireman reasonably
indicates, at the very least, that the age of the victim could be influential or determinative
in assessing guilt, as opposed to the evidence of guilt or the State's satisfaction of its
burden to prove guilt.  And, once the venireman so indicates, he has rendered himself
subject to challenge for cause.  Again, jurors must follow the law, which law requires that
they convict only if the State has presented evidence establishing, beyond reasonable
doubt, each element of the crime.  See Gray v. State, 51 S.W.3d 856, 860 (Tex.
App.-Texarkana 2001, pet. granted).  Factors irrelevant to guilt, such as a victim's age,
ethnicity, sex, sexual preference, religion or the like, cannot generally form the basis of a
decision to convict. (5)  Lastly, the only fact mentioned in the question, i.e. the victim being
two-weeks old, is the very fact needed to determine whether the venire member is barred
from serving on the jury.  
	Thus, before us we have a situation wherein a possible answer to the question
would provide basis to remove the respondent from the jury and the facts mentioned in the
question do not exceed those needed to establish the grounds for challenge.  Moreover,
this question differs little from one approved in Standefer that involved nuns.  There, the
court found nothing wrong with asking "'[I]f the victim is a nun, could [the prospective juror]
be fair and impartial?'"  Standefer v. State, 59 S.W.3d 180.  Here, and though his question
was worded differently, appellant too wanted to know if the jurors could be fair and
impartial despite a characteristic of the victim, that characteristic being age. (6)  In sum, the
question before us not only likens to one found permissible in Standefer, it falls outside the
boundaries of an impermissible commitment inquiry as those boundaries are defined in
that same case.   
	For these reasons, I respectfully dissent and reaffirm the conclusion and  judgment
this same panel reached when the cause was originally submitted.             
 
									Brian Quinn
									   Justice

Publish.
 
 

 
1. In Maddux, the specific question asked was whether, in a hypothetical case where
there was a murder conviction and a child had died, the jury would still be able to consider
probation.  Id. at 591.
2. Appellant objected to the indictment during the pretrial hearing immediately prior
to the commencement of trial.  
3. If it had so thought, precious judicial resource could have been conserved had the higher court simply
addressed and resolved the dispute itself. 
4. In other words, asking the jury to commit to acting in a certain way is not wrong if "one . . . "possible
answer[]" renders the jury subject to removal for cause, and only those facts needed to arrive at that particular response
are included in the question.  Standefer v. State, 59 S.W.3d 177, 180 (Tex. Crim. App. 2001) (emphasis added). 
Though the application of this test appears easy when describing it, one must recall the old adage about not judging
books by their covers.  Yet, I need not delve into the myriad of situations in which the application of the rule is hardly
facile.  It is sufficient to refer to the majority and dissenting opinions in Standefer and the concurring opinion rendered
by two judges on the Court of Criminal Appeals in the case at bar to understand that not all is as it seems when it
comes to commitment questions.   
5. I say "generally" for there may be situations wherein race, sex, or the like are elemental to conviction, such
as in statutory "hate" crimes.
6. That appellant may not have explicitly used the words "fair," "unbiased," "impartial" or the like in his
question does not control the outcome of the appeal.  This is so for several reasons.  First, it was and is clear that he
was attempting to assess the potential jurors' ability to be fair and unbiased.  Given this clarity of purpose, I hesitate
to substitute form over substance, that is, pretermit inquiry into potential bias and prejudice merely because the question
failed to contain a particular word.  See Dowling v. State, 926 S.W.2d 752, 754 (Tex. App.-Amarillo 1996, pet. ref'd)
(noting that one should avoid placing form over substance).  Second, in ruling as it did, the trial court prevented
appellant from delving into the topic of bias, partiality, and the potential impact the victim's age alone would have on
the juror's decision-making process.  And, it did so because it "disagree[d]" with the notion that "killing a two-week
old baby" may offend some more than killing an older victim.  Though killing in general irrespective of the victim's
age could indeed be considered offensive, the appellant was entitled to assess whether the youthfulness of the victim
at bar would alone be influential or determinative of guilt in the minds of some jurors.  And, the court did not prohibit
appellant from doing so because of the question asked but because it did not think it was a proper subject of inquiry. 


