                                     IN THE
                             TENTH COURT OF APPEALS

                                     No. 10-08-00360-CR
                                     No. 10-08-00361-CR

SEDRIC LAMON SMITH,
                                                                    Appellant
    v.

THE STATE OF TEXAS,
                                                                    Appellee


                             From the 40th District Court
                                 Ellis County, Texas
                       Trial Court Nos. 32887CR and 32888CR


                              MEMORANDUM OPINION


         Sedric Lamon Smith was convicted by a jury of the offense of Burglary of a

Habitation (No. 10-08-00361-CR) and of the offense of Unlawful Possession of a Firearm

by a Felon (No. 10-08-00360-CR).1 TEX. PEN. CODE ANN. §§ 30.02 & 46.04 (Vernon 2003).

Smith pled true to one prior felony conviction for enhancement purposes, and was

sentenced to a term of seventy (70) years and ten (10) years, respectively, in the Texas

Department of Criminal Justice – Institutional Division. TEX. PEN. CODE ANN. §§ 12.42

& 12.34 (Vernon 2003). Because we find that the State’s questions were not improper

1 Because Smith’s two cases were heard simultaneously, he has two separate appeals pending, and he has
filed briefs with identical arguments in each appeal, we will consider both appeals in this opinion.
commitment questions, that the failure to object to the trial court’s questioning was not

fundamental error and was waived, that Smith’s failure to testify waived his objection

regarding his motion to testify free from impeachment, and that he did not establish

that he was prejudiced by a Brady violation, if any, we affirm. We also deny Smith’s

request to adopt his co-defendant’s issues on appeal. 2

Commitment Questions

        Smith contends that the trial court erred by allowing the State to improperly

commit the jury panel to disregard the victim’s criminal history.                      A commitment

question is one that commits a prospective juror to resolve, or to refrain from resolving,

an issue a certain way after learning a particular fact. Standefer v. State, 59 S.W.3d 177,

179-80 (Tex. Crim. App. 2001). It is generally improper to ask a commitment question

during voir dire because it amounts to an improper attempt to bind a juror. See Lydia v.

State, 117 S.W.3d 902, 905 (Tex. App.—Fort Worth 2003, pet. ref'd) (op. on remand).

However, some commitment questions are proper. Id.; see Standefer, 59 S.W.3d at 181-

83.

        For instance, counsel may ask prospective jurors whether they can follow the law

when it requires a certain type of commitment from jurors and when the question states

only the facts required to establish a challenge for cause. Standefer, 59 S.W.3d at 181-82

(illustrating that counsel can ask jurors whether they can consider probation when the

law requires the jurors to be able to consider the full range of punishment); Vann v.

State, 216 S.W.3d 881, 884-85 (Tex. App.—Fort Worth 2007, no pet.). However, when

2Smith was tried simultaneously on both charges together with his co-defendant, Derek Boleware, who
was also convicted of the burglary but acquitted of the possession of a firearm by a felon charge (No. 10-
08-00336-CR).
Smith v. State                                                                                     Page 2
"the law does not require the commitment, a commitment question is invariably

improper." Standefer, 59 S.W.3d at 181.

        Thus, the determination of whether a question is an improper commitment

question consists of a three-part test: (1) is the question a commitment question; (2)

could a possible answer to the question produce a valid challenge for cause because it

would show that a juror would not follow the law; and (3) does the question only

contain the facts required to make such a challenge. See Tijerina v. State, 202 S.W.3d 299,

302 (Tex. App.—Fort Worth 2006, pet. ref'd) (op. on reh'g).           "[T]he purpose for

prohibiting improper commitment questions by either the State or the defendant is to

ensure that the jury will listen to the evidence with an open mind--a mind that is

impartial and without bias or prejudice--and render a verdict based upon that

evidence." Sanchez v. State, 165 S.W.3d 707, 712 (Tex. Crim. App. 2005).

        Attempting to determine whether a potential juror would automatically be

biased against a witness who has a criminal history is a commitment question. Lydia v.

State, 109 S.W.3d 495, 499 (Tex. Crim. App. 2003). We then must decide if a possible

answer to the question could result in a challenge for cause. A prospective juror may be

properly challenged for cause and removed "if he cannot impartially judge the

credibility of a witness." Ladd v. State, 3 S.W.3d 547, 560 (Tex. Crim. App. 1999), cert.

denied, 529 U.S. 1070, 146 L. Ed. 2d 487, 120 S. Ct. 1680 (2000). Potential jurors "must be

open-minded and persuadable, with no extreme or absolute positions regarding the

credibility of any witness." Id.

        By asking the questions, it is apparent that the prosecution was trying to learn if

any of the prospective jurors had "extreme or absolute positions regarding the
Smith v. State                                                                       Page 3
credibility of any witness" based on the witness's potential criminal history. Ladd, 3

S.W.3d at 560.    It is possible that the answers to these questions could lead to a

challenge for cause under article 35.16(a)(9) based on a juror's bias. TEX. CODE CRIM.

PROC. ANN. art. 35.16(a)(9) (Vernon 2006); Ladd, 3 S.W.3d at 560 (holding that a

prospective juror may be properly challenged for cause and removed if he cannot

impartially judge the credibility of a witness); see also Rivera v. State, 82 S.W.3d 64, 66-67

(Tex. App.—San Antonio 2002, pet. ref'd) (stating that if a prospective juror responded

to a question by stating that he would automatically disbelieve a defendant's testimony

simply because he was the defendant, that person would be stricken for cause). Thus,

the questions meet the second Standefer prong for proper commitment questions. See

Lydia, 117 S.W.3d at 906. Smith does not contend that the questions contained more

facts than necessary, but only that the questions were improper commitment questions

because they committed the venire to not considering whether the victim was “a bad

guy, a gangster and not a saint” in their deliberations. We overrule issue one.

Improper Comments by Trial Court

        Smith complains that the trial court made comments during voir dire, which

vitiated the presumption of innocence and improperly created a bias in favor of the

victim. Smith admits he did not object to these comments, but contends that they

constitute fundamental error, which requires no objection. He further contends that

these comments compounded the harm from the State’s improper commitment

questions, although we have determined that they were not, in fact, improper

commitment questions in Smith’s first issue.


Smith v. State                                                                          Page 4
        Without a contemporaneous objection, error is generally waived, and in that

instance, an appellate court may only review fundamental error. See Jasper v. State, 61

S.W.3d 413, 421 (Tex. Crim. App. 2001); Ganther v. State, 187 S.W.3d 641, 650 (Tex.

App.—Houston [14th Dist.] 2006, pet. ref'd); TEX. R. EVID. 103(d). Because Smith failed

to object at trial, the comments must rise to the level of fundamental error to be

preserved for appeal.       To support his fundamental-error argument, Smith relies

primarily on Blue v. State. 41 S.W.3d 129 (Tex. Crim. App. 2000). In Blue, a plurality of

the Court of Criminal Appeals held that the trial court's comments explaining to the

jury that the defendant had attempted to enter into a plea bargain with the State and

that the trial court would have preferred a guilty plea vitiated the presumption of

innocence before the venire, constituted fundamental error and, therefore, required no

objection. Id. at 132-33.

        The first comments by the trial court that Smith now contends vitiates his

presumption of innocence went as follows:

        [I]n every criminal case, …, a defendant is presumed to be innocent. That
        is, nobody has to prove – that’s another way of saying nobody has to
        prove they’re not guilty. It’s up to the prosecution to prove a defendant
        guilty, if they can.

        And up until the time they do that, the jury is required to presume the
        defendant not guilty. And also, in conjunction with this right not to –
        right to be presumed innocent and right not to have to prove they’re
        innocent is the right not to have to testify in order to prove your innocence
        in a criminal case.

        This has -- I’ll visit this later again. This really doesn’t have any
        application in a civil case. There’s no Fifth Amendment right in civil
        cases, but we’ll get to that later. In other words, one party or the other can
        call each other’s witnesses and each other’s plaintiff and defendant in
        order to prove their case. But criminal cases, prosecution can’t call the

Smith v. State                                                                           Page 5
        defendant as a witness. The defendant is not required to be a witness in
        the case because they’re not required to prove their innocence.

        To give you an example of that, suppose three witnesses got on the
        witness stand that the prosecution called and each one of those witnesses
        testified, I saw the defendant commit each and every element of the
        indictment that’s alleged in the offense. And I personally saw them do
        that and I know they did that. And the prosecution put on three witnesses
        to say that.

        And the defense didn’t say anything. They didn’t cross-examine the
        witnesses. They didn’t present any witnesses of their own. They didn’t
        even call the defendant to the witness stand to say, I didn’t do what they say I
        did. In the event the defendant elects to do that, you cannot take that as a
        circumstance against the defendant. And you can’t consider it as any
        evidence against the defendant.

        And if you evaluate this prosecution’s testimony and you look at witness
        number one who said I saw the defendant do all this, you may decide,
        well, that witness, when he got on the stand, was obviously intoxicated.
        I’m not even sure he understood the questions. It sounded like the
        prosecution was spoon-feeding him. The second witness, he’s absolutely
        insane. He didn’t tell the same story twice.

        Even on direct examination, he kept wishy-washing around. The third
        witness, he has such an ax to grind against the defendant for whatever
        reason that he could – you know, his testimony is just tainted beyond
        belief because he just obviously really has something against the
        defendant. So I really can’t – I don’t really -- can’t really buy all the State’s
        witnesses on this case.

        But you know what, the defense didn’t put on any witnesses. The defense
        – the defendant didn’t tell me he didn’t do it. And so even though the
        witnesses for the prosecution are shaky and there’s not enough to
        convince me beyond a reasonable doubt that the defendant committed the
        offense, he must have because he didn’t tell me he didn’t do so. And so,
        therefore, I’m going to find him guilty.

        That’s what you can’t do. So if a defendant elects not to testify, you
        cannot take that as a circumstance against him. On the other hand, if the
        defense elects to put on a defense and suppose we had those same shaky
        witnesses from the prosecution, and the prosecution put on these shaky
        witnesses and you had the same feelings about them, saying, boy, I can’t
        wait to get back to the jury room because I’m going to find these guys, or
        whoever the defendant is, not guilty as quick as I can because the
Smith v. State                                                                              Page 6
        prosecution’s evidence is just pitiful and I couldn’t find anybody guilty
        beyond a reasonable doubt on this case.

        But the defense, for whatever reason, they decide not to rest because they
        want to hit that home run. They want that Guinness Book of Records, jury
        verdict in less than two seconds, or for whatever reason, they decide to put on
        a defense. And they put on witnesses and they put on the defendant. And after
        listening to the defendant and listening to their side of the case, even
        though at the first part of the case you said, shoot, I’m going to vote not
        guilty, after hearing the second part of the case and after hearing the
        second set, boy, after I hear that testimony, I’m convinced beyond a
        reasonable doubt the defendant did commit the offense.

        So if a defendant does not elect to testify, you can’t take that as a
        circumstance against them. If a defendant elects to testify, then their
        testimony is just like any other testimony that may be offered in the case
        and you can consider it in determining a verdict for guilty or not guilty.
        Okay?

Reporter’s Record Volume 6, pages 55-58 (emphasis added).

        Smith’s complains of the two italicized sections in the above section.              He

contends that the trial court improperly commented on his right to remain silent when

the trial court said, “They didn’t even call the defendant to the stand to say” and “for

whatever reason, they decide to put on a defense. And they put on witnesses and they

put on the defendant.” Taking the statements in the context in which they were made,

we cannot say that they constituted a comment on the Smith’s right to remain silent or

that they vitiated Smith’s presumption of innocence.          See Jasper, 61 S.W.3d at 421

(holding that, even under the reasoning of the Blue plurality, the trial judge's comments

would not rise to the level of fundamental error); Ganther, 187 S.W.3d at 650-51

(concluding that, even if court of appeals were bound by the Blue plurality, the trial

judge's comments during voir dire did not rise to the level of tainting the presumption

of innocence or vitiating the impartiality of the jury).

Smith v. State                                                                            Page 7
        Smith’s other contention is that the trial court erred in making comments that

enhanced the State’s improper commitment questions regarding the victim’s criminal

history. The trial court clarified the State’s question to the venireperson by stating that

because a person committed a crime in the past does not give the general public

permission to commit a crime against him free from prosecution, later using an

illustration of the St. Valentine’s Day Massacre when some gangsters lined other

gangsters up on a wall and executed them and that to do so is not justifiable, but is still

murder. No objection was lodged to the trial court making improper comments or

demonstrating bias to the jury. Smith now contends that the trial court’s references to

gangsters imply that he is a “guilty gangster criminal” which vitiated the presumption

of innocence.

        We reject Smith's characterization of the trial court's comments and conclude

from our review of the record that none of the court's complained-of comments rise to

the level of fundamental error obviating the need to object in the trial court. See Jasper,

61 S.W.3d at 421; Ganther, 187 S.W.3d at 650-51. Because Smith did not object to the trial

court's comments and because the alleged error was not fundamental error, Smith's

complaint has been waived. See TEX. R. APP. P. 33.1(a); Jasper, 61 S.W.3d at 421. We

overrule issue two.

Admissibility of Prior Convictions

        Smith filed a pre-trial motion to testify free from impeachment by his prior

convictions. Under Texas Rule of Evidence 609(a), the credibility of a witness may be

attacked with a prior felony conviction or a conviction that involved moral turpitude.


Smith v. State                                                                       Page 8
TEX. R. EVID. 609(a). Before the evidence is admitted, the trial court must determine that

the probative value of the evidence outweighs its prejudicial effect to the party. Id.

        In this case, we do not reach the merits of Smith's argument because he did not

testify at trial and has not otherwise indicated what his testimony would have been. See

Jackson v. State, 992 S.W.2d 469, 479 (Tex. Crim. App. 1999); Yanez v. State, 199 S.W.3d

293, 303 (Tex. App.—Corpus Christi 2006, pet. ref'd); Caballero v. State, 919 S.W.2d 919,

923 (Tex. App.—Houston [14th Dist.] 1996, pet. ref'd); Richardson v. State, 832 S.W.2d

168, 172 (Tex. App.—Waco 1992, pet. ref'd). To preserve error on a trial court's ruling

that permits the State to impeach a defendant with prior convictions, the defendant

must have testified. Jackson, 992 S.W.2d at 479 (citing Luce v. United States, 469 U.S. 38,

43, 105 S. Ct. 460, 464, 83 L. Ed. 2d 443 (1984) (holding that a defendant must actually

testify to preserve error on improper impeachment under Federal Rule of Evidence

609(a)).; Yanez, 199 S.W.3d at 303; Caballero, 919 S.W.2d at 923. A reviewing court is

unable to weigh the probative value of the proffered testimony against its prejudicial

effect without a factual record of the appellant's testimony at trial. Jackson, 992 S.W.2d

at 479; Yanez, 199 S.W.3d at 303; Caballero, 919 S.W.2d at 923. Without such a record,

there is no impeachment evidence for prior convictions and we cannot sufficiently

review for error. See Long v. State, 245 S.W.3d 563, 573 (Tex. App.—Houston [1st Dist.]

2007, no pet.); Yanez, 199 S.W.3d at 303. Therefore, we overrule Smith’s third issue.

Brady Violation

        Smith’s next complaint is that the State violated the requirements of Brady v.

Maryland regarding the production of exculpatory and impeachment evidence. Brady v.

Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). A prosecutor has an
Smith v. State                                                                           Page 9
affirmative duty to turn over material, favorable evidence to the defense. Brady v.

Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963); Little v. State, 991 S.W.2d

864, 866 (Tex. Crim. App. 1999). To determine whether a prosecutor's actions violate a

defendant's due process rights, we employ a three-part test. We consider whether: (1)

the prosecutor failed to disclose evidence; (2) the evidence is favorable to the accused;

and (3) the evidence is material (i.e., whether a reasonable probability exists that the

result of the proceeding would have been different if the evidence had been disclosed to

the defense). Wyatt v. State, 23 S.W.3d 18, 27 (Tex. Crim. App. 2000); Little, 991 S.W.2d

at 866. When, as here, the disclosure of evidence occurs at trial, the issue becomes

whether the tardy disclosure prejudiced Smith. Id. If Smith received the material in

time to use it effectively at trial, his conviction should not be reversed just because it

was not disclosed as early as it should have been. Id.

        Smith contends there were two Brady violations:        (1) that the State did not

disclose the criminal history of the victim in writing until the day of trial, and (2) that

the name of the owner of a firearm found on the ground near where Smith and his co-

defendant were stopped was not disclosed until near the close of the State’s case

through a witness for the State even though the State was aware of his identity

approximately four days prior to the witness’s testimony.        However, it is apparent

from the record that Smith knew of the victim’s criminal history prior to trial and was

able to question him extensively about his criminal history during his testimony. He

did not ask for a continuance at any time to investigate either of these issues. The trial

court ruled that Smith would be allowed to recall any witness that had previously

testified to question them about this information, although Smith did not do so.
Smith v. State                                                                      Page 10
Further, regarding the firearm, two firearms were located at that time, one of which was

in the vehicle and was registered to Smith’s spouse. A loaded magazine fell out of

Smith’s lap when he got out of the vehicle after law enforcement stopped him. The gun

owned by Smith’s spouse was located in the console of the vehicle. The magazine fit

that firearm, and the firearm had a bullet in the chamber that matched those in the

magazine that had fallen from Smith’s lap. Additionally, Smith admitted to ownership

of the firearm to the officer on the scene. The issue regarding the identity of the owner

of the gun was solely related to the other firearm recovered on the ground near where

Smith’s vehicle was stopped. Assuming without deciding that the failure to disclose the

evidence would constitute a Brady violation, we find that Smith has made no showing

that he was prejudiced by the tardy disclosure of the information. We overrule Smith’s

issue four.

Adoption of Issues of Co-Defendant

         Smith requested this Court to allow him to adopt his co-defendant’s issues on

appeal. The State has objected to this. We deny this request. It is the obligation of each

defendant to raise all of his issues for appeal in his brief. TEX. R. APP. P. 38.1(f) (“The

brief must state concisely all issues or points presented for review.” (emphasis added)).

Additionally, it is not the obligation of this Court to create or restructure Smith’s

argument for him to make it fit his case, which would likely be necessary in an analysis

of issues raised by his co-defendant and not by him.

Conclusion

         We find that the State did not ask improper commitment questions to the venire

panel.    We also find that any error regarding the trial court’s comments is not
Smith v. State                                                                      Page 11
fundamental error, and because there was no objection, that issue is waived. We find

that the trial court did not abuse its discretion in denying Smith’s motion to testify free

from impeachment by his prior convictions. We find that Smith did not establish that

he was prejudiced by any Brady violation. We deny Smith’s request to adopt his co-

defendant’s issues on appeal. We affirm the judgment.



                                          TOM GRAY
                                          Chief Justice

Before Chief Justice Gray,
       Justice Reyna, and
       Justice Davis
Affirmed
Opinion delivered and filed November 25, 2009
Do not publish
[CRPM]




Smith v. State                                                                      Page 12
