                                                                         ACCEPTED
                                                                    04-13-00530-CR
                                                         FOURTH COURT OF APPEALS
                                                              SAN ANTONIO, TEXAS
                                                               1/5/2015 12:08:32 PM
                                                                      KEITH HOTTLE
                                                                             CLERK

                           IN THE

                   COURT OF APPEALS                 FILED IN
                                             4th COURT OF APPEALS
                                              SAN ANTONIO, TEXAS
                          FOR THE            1/5/2015 12:08:32 PM
                                               KEITH E. HOTTLE
           FOURTH SUPREME JUDICIAL    DISTRICT       Clerk


                          OF TEXAS

                  SAN ANTONIO, TEXAS

                     * * * * *
                ______________________

                   No.04-13-00530-CR
                _______________________

                   OSCAR DAVID PARDO
                                  Appellant
                          VS.

                     STATE OF TEXAS
                                  Appellee
        _______________________________________

         Appealed from the 379TH District Court
                 of Bexar County, Texas
           Trial Court Cause No. 2011-CR-5260
                ________________________

           MOTION FOR REHEARING BY APPELLANT
                _______________________

ORAL ARGUMENT REQUESTED         BARRY P. HITCHINGS
                                645 South Presa
                                San Antonio, Texas 78210
                                (210) 224-1433
                                (210) 224-4840 (telecopier)
                                State Bar No. 09723600
                                ATTORNEY FOR APPELLANT
                 INDEX OF AUTHORITIES

TEXAS CASES                                      Page(s)

Brown v. State, 913 S.W.2d 581 (Tex. Crim. App.
    1996) . . . . . . . . . . . . . . . . . . . .   21-22
Cannady v. State, 11 S.W. 3d 205 (Tex. Crim. App.
    2000). . . . . . . . . . . . . . . . . . . . .     20
Esquivel v. State, 595 S.W. 2d 516 (Tex. Crim. App.
    1980). . . . . . . . . . . . . . . . . . . . .     16
Feldman v. State, 71 S.W.3d 738 (Tex. Crim. App.
    2002 . . . . . . . . . . . . . . . . . . . . .     19
Gonzales v. State, 353 S.W.3d 826 (Tex. Crim. App.
    2011 . . . . . . . . . . . . . . . . . . . . 19-20
Hendrickson v. State, 500 S.W. 2d 491 (Tex. Crim.
    App.1973) . . . . . . . . . . . . . . . . . . .    16
Jones v. State, 928 S.W.2d 386 (Tex. Crim. App.
    1998) . . . . . . . . . . . . . . . . . . . . .    21
Martinez v. State, 621 S.W. 2d 797 (Tex. Crim. App.
    1981) . . . . . . . . . . . . . .   13, 15-18, 22-23
Moore v. State, 542 S.W. 2d 664 (Tex. Crim. App.
    1976) . . . . . . . . . . . . . . . . . . . . .    16
Payton v. State, 572 S.W.2d 677 (Tex. Crim. App.
    1978) . . . . . . . . . . . . . . . . . . . . .    17
Pearce v. State, 513 S.W.2d 539 (Tex. Crim. App.
    1974) . . . . . . . . . . . . . . . . . . . . .    16
Sanne v. State, 609 S.W. 2d 762 (Tex. Crim. App.
    1980) . . . . . . . . . . . . . . . . . . . . .    16
Valore v. State, 545 S.W. 2d 477 (Tex. Crim. App.
    1977) . . . . . . . . . . . . . . . . . . . . .    16

TEXAS STATUTES AND CODES
TEX. CRIM. PROC. CODE ANN. Art 35.16 (b) 3 (Vernon
    2013) . . . . . . . . . . . . . . . . .   18, 20, 22


                           ii
 APPELLANT’S MOTION FOR REHEARING POINT OF ERROR NO. 1

        THE COURT OF APPEALS ERRED IN HOLDING
        THAT THE TRIAL COURT DID NOT ABUSE ITS
        DISCRETION IN GRANTING THE STATE’S
        CHALLENGE FOR CAUSE AND DISMISSING
        VENIRE MEMBER 17 WHEN VENIRE MEMBER 17
        DID NOT STATE THAT: (1) HE COULD NOT
        FOLLOW THE LAW BECAUSE HE COULD NOT SIT
        IN JUDGMENT OF ANOTHER PERSON AND (2) HE
        (ABSOLUTELY) WOULD AND COULD NOT FOLLOW
        THE LAW AND APPLY THE LAW TO THE FACTS

Statement of the Facts

    In its December 17, 2014 Memorandum Opinion and

Judgment, the Court of Appeals ruled that the trial court

“did not abuse its discretion in granting the State’s

challenge for cause and dismissing venire member number

17" (i.e. Kevin Post) since venire member number 17

“expressed prejudice, ‘in essence’, against all phases of

the applicable law.” Opinion at pages 6-7.     However, a

detailed review of the facts as shown in the reporter’s

record shows that such was not the case.   A chronological

recital of the reporter’s record in voir dire as it

relates to venire member number 17 (Kevin Post) is set

forth below:


                            1
MS. RUMMEL: . . . . Okay. Ultimately you’re
going to be given the charge of the Court,
the law, and you’re going to be asked, did
the defendant commit the crime, and you have
to return a verdict of guilty or not guilty.
You’ll be asked to sit in judgment of
another, and whether it be a personal
belief, a moral belief, a just I’d-rather-
not-belief, whatever it may be, is there
anybody that absolutely will not sit in
judgment of another. Okay. Number 17 [Kevin
Post]
   And usually I do a caveat with this one
too. Not that you’d rather not sit in
judgment, but just cannot do it, will not do
it. Is 17 the only one?

VENIREPERSON: No.

MS. RUMMEL: 1, 3. Okay. Before everybody
raises their hands again, not would you
rather not do it, but you absolutely will
not return a verdict. You will not follow
the law. You will not apply the law to the
facts and you will not return a verdict.
Okay. Again, if you absolutely cannot do it,
please raise your hand. It could be the same
numbers. I’m just explaining it. Okay.
Number 1, 3, 5.

VENIREPERSON: I have a question.

MS. RUMMEL: Okay. I’ll go over it again. 1
[Ms. Diana Martinez], 3 [Mr. Francis
Tejeda], 5 [Mr. Brendan Cockman], 6 [Ms.
Anita Gonzales], 17 [Mr. Kevin Post].
Anybody else over here?

THE REPORTER: He said,     I’m   not   sure   I
understood the question.


                     2
        VENIREPERSON: My thing is, I can make a
        judgment,   but   under these  kind  of
        circumstances - -

        MS. RUMMEL:   That       was   a   whole   separate
        question.

        VENIREPERSON: Okay. Thank you.

        MS. RUMMEL: Yes. And we are taking notes
        down - -

        MR. MACH: May he be allowed - -        Your Honor
        - - excuse me, counsel. Can he be      allowed to
        finish his answer? He was a few        words into
        it and she just cut him off and        started on
        something else.

        THE COURT: Well, they’re conversing. This
        whole process is hopefully one where the
        jury and the attorneys can engage each
        other, so you’re welcome to follow up when
        it’s your turn and ask whatever you desire.

        MR. MACH: All right. Thank you, sir.

        MS. RUMMEL: And I apologize I was cutting
        you off. You said you had an issue on this
        type of case.

        VENIREPERSON: Right. I just wanted to be
        sure.

        MS. RUMMEL: Sure. And I certainly understand
        that. This is just notwithstanding the type
        of case, there are some people that just
        won’t judge for whatever reason. They just
        will not do it, cannot do it, and they will
        not ever sign a verdict form, okay?”. . . .

(RR. Vol 2, pp. 61-62)(Emphasis Added)

                             3
        MR. MACH: All right. Mr. Post [Venireperson
        Number 17]

        VENIREPERSON: Yes, sir. . . .

        MR. MACH: Okay. Did you raise your hand to
        anything?

        VENIREPERSON: Yeah. I don’t feel comfortable
        in sitting in judgment of anyone else.

        MR. MACH: Without getting too specific, is
        that a religious conviction or a moral?

        VENIREPERSON: I don’t believe in a God, so
        no.

        MR. MACH: Well, strike religious out of it
        then. You just don’t think - -

        VENIREPERSON: It’s mine to take and I don’t
        feel comfortable with it.

        MR. MACH: Okay. Did you raise your hand to
        anything else - -

        VENIREPERSON: Nope.

        MR. MACH: - - we talked about?

        VENIREPERSON: Nope.

        MR. MACH: All right. Thank you, sir.

(RR. Vol 2, pp. 116-117)(Emphasis Added).

    At the conclusion of the voir dire the trial court

judge then commented:


                           4
THE COURT: All right. The jury panel has
been excused. Just for the record, the
parties have indicated that they agree to
strike numbers 1 [Ms. Diana Martinez], 5
[Mr. Brendan Cockman], 7 [Ms. Yolanda
Kathryn Stanton], 14 [Ms. Amanda Marie
Sanchez], 30 [Ms. Suzanne Deborah Martel]
and 49 [Ms. Daryl Ann Denman]. Is that
correct?

MS. RUMMEL: Uh-huh.

THE COURT: For the record, is that a yes?

MS. RUMMEL: Yes, That is correct from the
State. And 14 and 49 are already - -

MR. MACH: That’s correct. That’s correct.

MS. RUMMEL: - - excused.

THE COURT: Okay. Now, Mr. Mach, were there
any that you wanted to bring up?

MR. MACH: I had marked in addition - - the
Court may have marked 8, 19 48 twice. That
can’t be. 42.

THE COURT: Okay. All right. Let’s bring up
Number 8, Serna.

MR. MACH: Which ones do you want?

MS. RUMMEL: I said 8 [Rogelio Flores Serna],
17 [Kevin Post] and 25 [Gerardo Silva].
There was no other - - there was no others
in the first then that you wanted to bring
up?

MR. MACH: Does the Court have others that we
had - - didn’t mention?

                      5
          THE COURT: Well, kind of up to y’all.

          MR. MACH: I’d like to bring up the Court’s
          list.

          THE COURT: I got a few, but it’s kind of up
          to y’all. If y’all are okay with - -

          MR. MACH: No.

          THE COURT: Let’s bring him up to the mike.
          Let’s bring him up to the mike.
             All right, sir. You are Number 8 [Rogelio
          Flores Serna]; is that correct? Is that
          right, sir?

          VENIREPERSON: Sir, how are you?

          THE COURT: Good, good. We asked you back
          because one or more or both sides may have
          more questions for you, all right?

          VENIREPERSON: Okay.

(RR.   Vol    2,    pp.   146-147)(Emphasis       Added)(Names   and

numbers of venirepersons found in Supplemental Clerk’s

Record pp, 3-6). At the conclusion of the voir dire, in

response to the trial court judge’s query of “were there

any    that   you    wanted   to   ‘bring   up’    for   additional

questioning, the Appellant’s attorney (Mr. Mach) and the

State’s attorney (Ms. Rummel) identified venire members

8, 17, 19, 25 and         42 as persons they wanted to further


                                   6
question before the bench.(RR. Vol. 2, p. 147). The

State’s    attorney    (Ms.   Rummel)       and    the    Appellant’s

attorney     (Mr.     Mach)   then       proceeded       to   question

venireperson number 8 (Rogelio Flores Serna) before the

trial court judge and outside of the presence of the

other venirepersons. (RR. Vol. 2, pp. 148-153). After

granting    the     State’s   challenge      for     cause     against

venireperson number 8 (Mr. Serna), the following exchange

took place:

           MS. RUMMEL: The State requested to bring up
           Number 17 [Mr. Kevin Post].

           THE COURT: All right. So Number 17, the
           State’s going to challenge him?

           MS. RUMMEL: Uh-huh.

           THE COURT: All right. He mentioned in
           several different instances he would not be
           fair and he is the individual that said that
           he could not sit in judgment of another one;
           is that correct?

           MS. RUMMEL: Yes. And then I followed - - I
           believe that I said, Will you follow the law
           and can you render a verdict, and he said,
           No, I can’t do it. Won’t follow the law,
           Judge.

           MR. MACH: Let’s give him a chance.

           THE COURT: All right. I’m going to grant the

                                     7
           State’s challenge for Number 17.

           MR. MACH: Well, Your Honor, I respectfully
           request a chance to rehabilitate him.

           THE COURT: Yes, sir. You had an opportunity
           to question him during voir dire and you did
           talk to him in voir dire and I’ll deny that.

(RR. Vol. 2, pp. 153-154)(Emphasis Added)

    As noted in Appellant’s Brief, Appellant’s trial

attorney objected to the exclusion of Venireperson Number

17 (Kevin Post) by the trial court, requested additional

preemptory strikes, objected to venireperson numbers 31

and 33 being included with the jury and moved for a

mistrial    which   was   all   denied   by   the   trial    court.

(Appellant’s Brief pp. 19-22).

    After    reviewing    the   reporter’s    record   (as    cited

above) the Court of Appeals concluded that:

           “the essence” of the statements made by
           venire member number 17 was that he could
           not follow the law because he could not sit
           in the judgment of another person. When
           asked whether he would follow the law and
           apply the law to the facts, venire member
           number 17 expressed that he absolutely could
           not do it. Thus, venire member number 17
           expressed prejudice, “in essence”, against
           all phases of the applicable law. Because
           bias or prejudice against any law upon which
           the State intends to rely is a proper ground

                                   8
             for a challenge for cause under the Code, we
             hold the trial court did not abuse its
             discretion in granting the State’s challenge
             for cause and dismissing venire member
             number 17. See Gonzales, 353 S.W.3d at 831.

Court of Appeals Opinion at pp. 6-7.                        However, the

conclusion of the Court of Appeals that venire member

number 17 stated that: (1) he could not follow the law

because he could not sit in the judgment of another

person; and (2) he (absolutely) would not follow the law

and    apply    the   law   to    the       facts   is   contrary   to   the

statements made by venire member 17 [Mr. Post] in the

reporter’s record.

       The alleged statements attributed to venire member 17

that he (1) could not            follow the law, (2) could not sit

in the judgment of another person, and (3) he absolutely

could not follow the law and apply the law to the facts

were not statements made by venire member number 17, but

were    in     fact   statements        and    arguments    made    by   the

prosecutor Lorina Rummel which she attributed to venire

member number 17. (RR. Vol. 2, pp. 61-62).                  Venire member

17's only “mistake” was to raise his hand because he had



                                        9
a question.” (RR. Vol. 2, pp. 61-62).        The Court Reporter

stopped the prosecutor to inform the prosecutor that –

“He said, I’m not sure I understood the question.” (RR.

Vol. 2, p. 62).      The venire member responded by stating:

          VENIREPERSON: My thing is, I can make a
          judgment,   but   under these  kind  of
          circumstances - -

when he was interrupted by the prosecutor before he could

finish    his   statement.      (RR.   Vol   2,    p.   62).   When

Appellant’s trial attorney complained to the trial judge

that “she just cut him off” the trial judge informed

Appellant’s trial attorney that “you’re welcome to follow

up when it’s your turn and ask whatever you desire.” (RR.

Vol 2, pp. 61-63).           When Appellant’s trial attorney

questioned venire member 17 (Mr. Post), if he had raised

his hand to anything, Mr. Post responded by stating:

          VENIREPERSON: Yeah. I don’t feel comfortable
          in sitting in judgment of anyone else. . . .
          and I don’t feel comfortable with it.

(RR. Vol. 2, p.117)(Emphasis Added). When the Appellant’s

trial attorney asked venire member 17 if he had raised his

hand to   anything    else, venire member         17 responded    –


                                10
“Nope.” (RR. Vol 2, p. 117).

    After the State requested to bring venire member 17

[Kevin   Post]   before    the   bench   for   questioning   on   a

challenge for cause (and apparently without venire member

17 being before the bench) the trial court judge showed

confusion as to the statements actually made by Mr. Post

when the trial judge stated:

          THE COURT: All right. He mentioned in
          several instances he would not be fair and
          he is the individual that said he could not
          sit in judgment of another one; is that
          correct?

          MS. RUMMEL: Yes. And then I followed - - I
          believe that I said, Will you follow the law
          and can you render a verdict, and he said,
          No, I can’t do it. Won’t follow the law.
          Judge.

  (RR.   Vol   2,   p.   153)(Emphasis   Added).   However,   the

statements of the trial court judge and the prosecutor

attributed to Kevin Post (venire member number 17) are

not supported by the reporter’s record and are, in fact,

contrary to the reporter’s record. Such statements are

solely the prosecutor’s argument, not the statements of

venire member number 17. Venire member 17 (Kevin Post’s)


                                 11
only “statements” were: (1) “I have a question”; (2) “My

thing is, I can make a judgment, but under these kind of

circumstances - -”; (3) “Right. I just wanted to be

sure”; (4) ”Yeah, I don’t feel comfortable in sitting in

judgment of anyone else”; (4) “It’s mine to take and I

don’t feel comfortable with it”; and (5) “Nope” (when

asked by Appellant’s trial attorney if he had raised his

hand to anything else.” (RR. Vol. 2, pp. 61-62, 116-117).

      Five   (5)    venire   members     raised    their   hands    in

response     to    the   prosecutor’s    question    of    “is    there

anybody that absolutely will not sit in judgment of

another?” (RR. Vol 2, p. 61).               The five (5) venire

members were numbers: 1 [Ms. Diana Martinez who was an

agreed strike]; 3 [Mr. Francis Tejeda - struck for cause

when he admitted he couldn’t be fair]; 5 [Mr. Brendan

Cockman who was an agreed strike]; 6 [Ms. Anita Gonzales

- struck for cause when she said “I cannot be fair”]; and

17 [Mr. Kevin Post]. (Supplemental Clerk’s Record pp, 3-

6; RR. Vol 2, pp. 91, 94-96, 146-147). Of the five (5)

venire members the only disagreement between the State

and   the    Appellant    concerned     venire    member   17    (Kevin

                                 12
Post).

Argument and Authorities

    The Court of Appeals’ December 17, 2014 Memorandum

Opinion and Judgment ignores the Texas Court of Criminal

Appeals opinion in Martinez v. State, 621 S.W.2d 797

(Tex. Crim. App. 1981) which was argued by Appellant in

his Appellant’s Brief and Reply Brief of Appellant. As

previously set forth in Appellant’s two briefs, in the

Texas    Court   of    Criminal   Appeals     en   banc   opinion   in

Martinez,    the      venire   member   Mr.   Clifford,    following

general and individual voir dire, was called to the bench

to answer specific questions. While answering questions

by the trial court judge, venire member Clifford stated

“I don’t think I am qualified to sit in judgment of

another human being” and “I think the responsibility is

more awsome [sic] than I want to accept to judge another

human being” when the trial court judge interrupted the

prosecutor and stated “I am going to excuse him” over the

objections of the Appellant’s attorney. Id. at 798.

    In comparing venire member Clifford (in Martinez)

with venire member Post in Appellant’s case, there are

                                  13
striking     similarities    and     differences.         Venire   member

Clifford was questioned at the bench following general

and individual voir dire. Despite the State’s request to

bring   venire   member     Kevin        Post    before   the   bench    to

question him, the trial court judge granted the State’s

challenge for cause (to venire member Post) over the

objection of Appellant’s trial attorney without either

side having an opportunity to question venire member Post

before the bench (despite such a request by the State).

As   noted    previously,    the         trial    court   judge    showed

confusion as to the statements actually made by venire

member Post when the trial court judge commented that

“[h]e mentioned in several instances that he could not be

fair and he is the individual that said he could not sit

in judgment of another. . . .” (RR. Vol. 2, p. 153).                    The

trial court judge granted the State’s challenge for cause

based upon the prosecutor’s erroneous claims attributed

to venire member Post that – “I believe that I said, Will

you follow the law and can you render a verdict, and he

said, No, I can’t do it. Won’t follow the law, Judge.”

(RR. Vol. 2, pp. 153-154).          However, the record fails to

                                    14
show     such    statements    by    venire     member    Post.     When

Appellant’s trial attorney stated - “Let’s give him a

chance” the trial court judge responded by stating – “I’m

going to grant the State’s challenge for Number 17.” (RR.

Vol. 2, p. 154).

       Venire member Clifford in Martinez expressed the same

reservations as venire member Post when venire member

Clifford told the trial court judge that “I don’t think

I am qualified to sit in judgment of another human being”

and “I think the responsibility is more awsome [sic] than

I want to accept to judge another human being. . . .”

Martinez    at    798.    Both      venire   members     Clifford    (in

Martinez) and Post (in Appellant’s case) expressed “a

disinclination      to   accept      responsibility”      in   judging

another person. Venire member Clifford was “struck” for

cause by the trial court in Martinez for expressing such

a disinclination. After the State requested that venire

member approach the bench for questioning, venire member

Post was “struck” for cause by the trial court before

either    the    State   or   the   Appellant    questioned       venire

member Post before the bench. The trial court judge

                                    15
granted the State’s challenge for cause to venire member

Post    in   Appellant    Pardo’s        case   based   upon    the   same

reservations      and    disinclination         expressed      by   venire

member Clifford in the Martinez case.

       As pointed out in the Appellant’s Brief and the Reply

Brief, the Texas Court of Criminal Appeals in Martinez in

quoting from Esquivel v. State, 595 S.W.2d 516, 524 (Tex.

Crim. App. 1980) noted that the Esquivel court reiterated

the well settled rule that:

             [a] trial judge should not on its own motion
             excuse a prospective juror for cause unless
             he is absolutely disqualified from serving
             on a jury. This rule is also stated in Sanne
             v. State, 609 S.W.2d 762, 770 (Tex.Crim.App.
             1980), Valore v. State, 545 S.W.2d 477
             (Tex.Crim.App. 1977), Moore v. State, 542
             S.W.2d 664 (Tex.Crim.App. 1976), Pearce v.
             State, 513 S.W.2d 539 (Tex.Crim.App. 1974)
             and Hendrickson v. State, 500 S.W.2d 491
             (Tex.Crim.App. 1973).

Id.    at    797-798.    (Emphasis       Texas    Court   of    Criminal

Appeals). The Texas Court of Criminal Appeals in Martinez

in reversing the judgment of the trial court emphasized

that under the Texas Code of Criminal Procedure – “A

disinclination to accept responsibility is not listed as

a reason for the trial judge sua sponte to excuse a

                                    16
venire   person”        and   “[t]he    trial     court   judge       clearly

erred.” Id. at 799.

    After finding reversible error in Martinez, the Texas

Court of Criminal Appeals in its en banc opinion then

proceeded to decide whether the trial court’s error in

Martinez    was     harmful.      The    Texas      Court      of    Criminal

Appeals in Martinez noted that:

           [i]n Payton v. State, 572 S.W.2d 677, 680
           (Tex.Crim.App. 1978) the Court set forth a
           test devised to show harm for the erroneous
           exclusion of a qualified juror:

           ‘Harm may be shown in the erroneous
           exclusion of a qualified juror by showing
           that the State exhausted its preemptory
           challenges.’  See also, Pearce v. State,
           supra.

Martinez at 799. (Emphasis Added). After examining the

trial    court    record      showing    the      lists   of    preemptory

challenges,       the    Texas   Court       of   Criminal     Appeals     in

Martinez noted that the record showed that the State had

exhausted     its       preemptory      challenges.       In        its   harm

analysis, the Texas Court of Criminal Appeals in Martinez

concluded that:

           [t]he effect of the trial court’s action,
           “from the perspective of the defendant,

                                        17
          [was] the same as if the State had been
          given an extra preemptory challenge.” Payton
          v. State, supra. As the appellant argued in
          his brief, it is not proper “to exclude from
          a jury those of the ‘reluctant’ mold in
          favor of those of the ‘eager’ mold. Harm
          now appearing, the ground must be sustained.

             The judgment is reversed, and the cause
          remanded.

Martinez at 799. (Emphasis Added).

    Although Martinez represents a case in which the

trial court on its own motion “struck” a veniremember for

cause,    Article   35.16   of   the   Texas    Code   of   Criminal

Procedure     (entitled     “Reasons      for     Challenge      for

Cause”)addresses challenges for cause made by either the

state or the defense. Specifically, Article 35.16 (b) 3

provides that:

          [a] challenge for cause may be made by the
          State for any of the following reasons: . .
          . .
          3. That he [a juror] has a bias or prejudice
          against any phase of the law upon which the
          State is entitled to rely for conviction or
          punishment.

In Gonzales v. State, the Texas Court of Criminal Appeals

ruled that in applying such a standard to a venire

member:


                                 18
        [t]he test is whether the venireperson’s
        “bias or prejudice would substantially
        impair [his] ability to carry out his oath
        and instructions in accordance with the
        law.” citing Feldman v. State, 71 S.W.3d
        738, 744 (Tex. Crim. App. 2002). To
        establish that the challenge for cause is
        proper, the proponent of the challenge must
        show that the venireperson understood the
        requirements of the law and could not
        overcome his prejudice well enough to follow
        the law. Feldman at 747.       So before a
        venireperson may be excused for cause on
        this basis, the law must be explained to
        him, and he must be asked whether he can
        follow that law, regardless of his personal
        views.

353 S.W.3d 826, 831-32. In Gonzales, venireperson Murdock

provided answers that she would not afford the Appellant

the right to remain silent and would shift the burden of

proof to the Appellant. Id. at 832. However, the Court of

Criminal Appeals concluded that venireperson Murdock’s

statements were based upon “a misunderstanding of the

law.” Id.   However, when the trial court judge explained

the requirements of jury service to venireperson Murdock

and asked whether she could still follow the law and the

instructions   of   the   Court   and   follow   her   oath,

veniremember Murdock responded — “Yes, I will do that.”

Id. at 836. On appeal, the Court of Criminal Appeals

                            19
overruled Appellant’s point of error denying Appellant’s

challenge for cause to venireperson Murdock. Id. at 837.

      In Cannady v. State, the Texas Court of Criminal

Appeals overruled an Appellant’s two points of error in

which a trial court judge denied two challenges for cause

to veniremembers. 11 S.W.3d 205, 209-210 (2000). One

veniremember testified that the fact that Appellant was

already in prison would affect his ability to presume the

Appellant innocent. Id. at 209. The second veniremember

testified that as a correctional officer he had witnessed

a murder by a prisoner of another prisoner in his unit

and   had    expressed    his     dissatisfaction    with     the   jury

acquitting      the      defendant.      However,    despite        both

veniremembers occasional confusion on the issues, both

veniremembers testified that they could listen to the

facts and make a determination based solely on the facts

and the law. Id. at 210.

      In    Jones   v.   State,    the   Texas   Court   of   Criminal

Appeals ruled that “before a veniremember can be properly

challenged under Article 35.16 (b) (3), the law must be

explained to him and he must be asked whether he can

                                    20
follow that law regardless of his personal views. 982

S.W.2d 386, 390 (1998) citing Chambers v. State, 903

S.W.2d 21, 29 (Tex. Crim. App. 1995).             In Jones, the

Court of Criminal Appeals concluded that because the

relevant law was not explained to veniremember Snyder,

she was not subject to a challenge for cause. Id. at 390.

    In   Brown   v.   State,   the    Texas   Court   of   Criminal

Appeals considered a case in which venireperson Stagner

vacillated between stating that “she definitely would be

able to follow the law and stating that she definitely

would not be able to follow the law and stating that she

did not know for sure whether she could follow the law.

913 S.W.2d 581 (1996). The Court of Criminal Appeals

concluded that:

         [i]n other words, nothing is left to the
         discretion of the trial court when the
         venireperson is unequivocal as to their
         ability to follow the law. If they testify
         unequivocally that they can follow the law
         despite personal prejudices, the trial court
         abuses   its   discretion   in  allowing   a
         challenge for cause on that basis. Likewise,
         if they testify unequivocally that they
         cannot follow the law due to their personal
         biases,   the   trial   court   abuses   its
         discretion in failing to grant a challenge

                                     21
        for cause on that basis. . . .

Id. at 580. However, the Texas Court of Criminal Appeals

reinstated the judgment of the trial court by ruling that

“when the record reflects a vacillating venireperson, the

reviewing court is bound by the trial court’s judgment in

the matter.” Id at 580-581.

    As noted on page 12 of this Motion for Rehearing,

veniremember 17 [Kevin Post] made five (5) statements in

response to questioning by the State and the defense in

which he stated his ability to make a judgment but that

he simply did not feel comfortable sitting in judgment of

anyone else. The statements attributable to veniremember

Post [by the State] that; “he could not be fair”, “could

not sit in judgment of another one”, he “can’t follow the

law”, “won’t follow the law” and “can’t render a verdict”

are simply not supported by the record.

    The logic of the Texas Court of Criminal Appeals’

opinion in Martinez that “it is not proper to exclude

from a jury those of the ‘reluctant’ mold in favor of

those of the ‘eager’ mold” is equally applicable to

criminal cases in which the State makes a challenge for

                              22
cause pursuant to Article 35.16 (b) 3 of the Texas Code

of Criminal Procedure. As harm was found in Martinez by

a   trial   court   judge    on   its    own   motion    excusing   a

prospective juror, harm likewise exists in Appellant

Pardo’s case.

                              PRAYER

      WHEREFORE, Appellant prays that this Honorable Court

grant this Motion for Rehearing and reverse the judgment

of the trial court and render judgment in favor of the

Appellant or in the alternative, reverse the judgment of

the   trial    court   and   remand      the   case     for   further

proceedings.

                                       Respectfully submitted,

                                       LAW OFFICES OF
                                       HITCHINGS & POLLOCK
                                       645 South Presa
                                       San Antonio, Texas 78210
                                       (210) 224-1433
                                       (210) 224-4840 (telecopier)


                                  By: /S/ Barry P. Hitchings
                                      BARRY P. HITCHINGS
                                      State Bar No. 09723600
                                      ATTORNEYS FOR APPELLANT




                                  23
               CERTIFICATE OF COMPLAINCE

    I certify, in accordance with Rule 9.4 of the Texas
Rules of Appellate Procedure that this document contains
4279 words.


                                 /S/ Barry P. Hitchings
                                 Barry P. Hitchings


                 CERTIFICATE OF SERVICE

     The undersigned hereby certifies that on this 5th day
of January, 2015, a true and correct copy of the
Appellant's Motion for Rehearing was served by e-filing
at laura.durbin@bexar.org and hand-delivered to the Bexar
County Criminal District Attorneys Office, Paul Elizondo
Tower, 101 W. Nueva Street, San Antonio, Texas 78205.



                                 /S/ Barry P. Hitchings
                                 BARRY P. HITCHINGS




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