             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                       NO. AP-76,521


                           BRIAN EDWARD DAVIS, Appellant

                                             v.

                                 THE STATE OF TEXAS

                  ON DIRECT APPEAL FROM CAUSE NO. 616522
                         IN THE 230TH DISTRICT COURT
                               HARRIS COUNTY

       K EASLER, J., delivered the unanimous opinion of the Court.

                                        OPINION

       Davis was convicted of capital murder committed in 1991.1 Pursuant to the jury’s

answers to the special issues set forth in Texas Code of Criminal Procedure Article 37.071,

the judge sentenced Davis to death. This Court affirmed the original conviction and

sentence.2 In 2009, this Court granted relief on its own motion on a claim raised in Davis’s




       1
           T EX. P ENAL C ODE § 19.03(a).
       2
           Davis v. State, 961 S.W.2d 156 (Tex. Crim. App. 1998).
                                                                                  DAVIS—22

previous writ of habeas corpus and remanded the case for a new punishment hearing because

the nullification instruction given to the original jury was not a sufficient vehicle to allow

jurors to consider and give full effect to Davis’s mitigating evidence.3 Upon retrial, based

upon the jury’s answers to the special issues set forth in Texas Code of Criminal Procedure

Article 37.0711, §§ 3(b)(1), 3(b)(2), and 3(e), the judge sentenced Davis to death.4 Direct

appeal to this Court is automatic.5 Davis raises six points of error. Finding his contentions

to be without merit, we affirm Davis’s conviction and sentence of death.

       In his first point of error, Davis claims that the judge abused her discretion by not

allowing the defense to call Monesa Mendoza Downs to testify regarding an extraneous

offense involving the 1988 murder of Keith Blaylock. Davis had been linked to that murder

through Thomas David Cason’s testimony and DNA found on a stocking mask allegedly used

in the crime. Davis wished to offer Downs’s testimony regarding statements made by her

then-boyfriend, Tyler Strader, to rebut those links.

       In 1988, Keith Blaylock worked at the Beverage Barn in Mineral Wells, Texas. In

June 1988, he was abducted during a robbery of the Beverage Barn. His body was found

about ten miles away the next day. Blaylock had been shot in the back of the neck with a

.22-caliber firearm. During the investigation, Davis became a person of interest because he


       3
         Ex parte Davis, No. AP-76,263 (Tex. Crim. App. Nov. 18, 2009) (not designated
for publication).
       4
           T EX. C ODE C RIM. P ROC. art. 37.0711, § 3(g).
       5
           Id. art. 37.0711, § 3(j).
                                                                                    DAVIS—33

had been heard talking with other individuals about robbing the Beverage Barn before it

happened. During police questioning, Davis admitted that he only talked “hypothetically”

about robbing the Beverage Barn and stated that he had no serious intent to do it. Davis was

released, and no charges were filed at that time.

       Police also investigated Tyler Strader in connection with Blaylock’s death. Downs

gave investigators a sworn statement in which she claimed that, on the morning after the

murder, Strader told her that he had been out drinking with a few friends the night before.

He mentioned the names of the three people he had been drinking with, but Downs could

only remember the names Ben Davis and “Blaylock” (who presumably was someone other

than the victim). Strader said that the men became very intoxicated and began talking about

killing someone. Believing that his friends were getting too drunk, Strader decided to leave

and was taken home by his friends. Later that same day, Strader told Downs, “Wow, they

did it. Those crazy sons of bitches, they did it, they killed that boy.” Strader also said, “They

took him out on a dirt road and shot him in the head.” Strader allegedly made these

statements several hours before Blaylock’s body was discovered. Strader never told Downs

that he was with “them” when they kidnapped and murdered Blaylock. He never stated that

he was involved in Blaylock’s abduction and murder.

       During trial, Davis attempted to offer Downs’s sworn affidavit and testimony, which

admittedly contained hearsay, as a statement against Strader’s penal interest. In a hearing

conducted outside the jury’s presence, Downs testified in regards to her affidavit. Davis
                                                                                    DAVIS—44

argued that because Strader knew specific details of the murder, he therefore incurred

criminal liability by making the inculpatory statements. The State objected, arguing that the

testimony did not meet the statement-against-penal-interest hearsay exception because there

was not enough corroboration for the statements to be considered trustworthy. Davis

countered that the testimony was corroborated because of the specificity of the information.

The State’s objection was sustained, and Davis made a bill of exception.

       On appeal, Davis argues that the judge erred in denying Downs’s proffered testimony

as it should have been admissible as a “declaration against penal interest” under Texas Rule

of Evidence 803(24). The exception for statements against penal interest “stems from the

commonsense notion that people ordinarily do not say things that are damaging to themselves

unless they believe they are true.”6 In order for a declaration against interest to be admissible

under Rule 803(24), the statement must be self-inculpatory with corroborating

circumstances.7 “[O]nly those statements that are directly against the speaker’s penal

interests (including ‘blame-sharing’ statements) are admissible under Rule 803(24). Self-

exculpatory statements that shift blame to another must be excluded.” 8

       Strader’s statements are not self-inculpatory. Downs’s proffered testimony was that

Strader said “those crazy sons of bitches did it,” and “ [t]hey took him out on a dirt road and



       6
           Walter v. State, 267 S.W.3d 883, 890 (Tex. Crim. App. 2008).
       7
           Dewberry v. State, 4 S.W.3d 735, 751 (Tex. Crim. App. 1999).
       8
           Walter, 267 S.W.3d at 886.
                                                                                  DAVIS—55

shot him in the head.” Strader’s word choice shows that he did not consider himself part of

the group who committed the crime. As his statements do not show that he had a role in the

crime, they are not statements against his penal interest.9 Even if Strader’s statements could

be interpreted as somewhat inculpatory, they more closely resemble blame-shifting

statements, which are not sufficient under the Rule 803(24).10 Therefore, the statements are

unreliable hearsay, and the judge properly excluded them as failing to meet the Rule 803(24)

hearsay exception. Point of error one is overruled.

       In his second point of error, Davis argues that the judge abused her discretion by

denying his motion for mistrial after Thomas Cason, Davis’s accomplice in the Beverage

Barn robbery, informed the jury that Davis had previously been sentenced to death. Davis

asserts that the judge’s instruction to disregard the statement was insufficient to cure the

prejudice it caused.

       In its direct examination, the State asked Cason why he told his cousin the details of

the robbery several years later. His response included an unsolicited statement that Davis had

been on death row:

       [STATE]:        Between the time that the crime occurred, you go to prison, you
                       get out. Did you find out whether or not Brian Davis had been
                       convicted of another crime?

       [CASON]:        Yes, ma’am.



       9
            See Guidry v. State, 9 S.W.3d 133, 149 (Tex. Crim. App. 1999).
       10
            Walter, 267 S.W.3d at 896.
                                                                                   DAVIS—66

       [STATE]:      So, why did you tell him?

       [CASON]:      Brian was on death row and he had already done something else
                     and I had told him—

Defense counsel immediately asked to approach the bench. Outside the presence of the jury,

Davis objected that Cason deliberately made the comment, it was prejudicial, and it denied

him a fair punishment hearing and due process of law. Cason admitted that he was instructed

not to use the words “death row” during his testimony, but that it was a “slip.” The judge

sustained the objection. Davis then argued that because he was not permitted to question

jurors about their feelings regarding his previous death sentence, he had been unable to

challenge prospective jurors for cause on that basis, and therefore he had a strong case for

a mistrial. The State opposed a mistrial, explaining that the jurors had shown a willingness

to follow all of the judge’s instructions and stating that it believed they would disregard the

statement when instructed to do so. Further, the State noted that the jurors were aware of

Davis’s capital murder conviction and had likely already concluded that he received a death

sentence from the first jury, but that an instruction would cure any potential harm. Defense

counsel agreed that the State had not elicited the answer and expressly disclaimed any

prosecutorial misconduct, but continued to argue for a mistrial. The judge continued the

motion-for-mistrial hearing until the next morning. However, she sustained the objection

before the jury and instructed the jury to disregard Cason’s statement before recessing court

for the night.
                                                                                 DAVIS—77

       The following morning, the State presented two cases, Guidry v. State 11 and an

unpublished opinion from this Court, Garcia v. State,12 in which either the prosecutor or a

witness had commented about a previous death sentence of the defendant or co-defendant,

but this Court found the comments cured by an instruction to disregard.13 Davis again argued

that he was harmed because he had not been allowed to question jurors about whether

knowledge that he had previously received a death sentence for the instant crime would

affect their ability to serve as jurors. The judge denied the motion for mistrial. Cason’s

testimony continued with neither the State nor the defense mentioning Davis’s previous death

sentence in his earlier trial.

       A denial of a motion for mistrial is reviewed under an abuse of discretion standard,

and a judge’s ruling must be upheld if it was within the zone of reasonable disagreement.14

It is well settled that improper remarks can be rendered harmless by a judge’s instruction to

disregard, unless it appears they were so clearly calculated to inflame the minds of the jury



       11
            9 S.W.3d 133 (Tex. Crim. App. 1999).
       12
         No. AP-71,417, 2003 WL 22669744 (Tex. Crim. App. Nov. 12, 2003) (not
designated for publication).
       13
          See Guidry, 9 S.W.3d at 154 (holding State’s comment about co-defendant
receiving death sentence cured with instruction to disregard); Garcia, 2003 WL 22669744
at *3-4 (holding instruction to disregard rendered harmless witness’s comment that he
saw defendant being transported with death row inmates because “[t]he uninvited and
unembellished reference to death row . . . was not so inflammatory as to undermine the
efficacy of the trial court’s instruction to disregard.”).
       14
            Coble v. State, 330 S.W.3d 253, 292 (Tex. Crim. App. 2010).
                                                                                    DAVIS—88

or were of such damning character as to suggest it would be impossible to remove the

harmful impression from the jury’s mind.15 Here, Cason’s uninvited and unembellished

reference to Davis’s being on death row was not so inflammatory as to undermine the

efficacy of the judge’s instruction to disregard.16 We presume the jury follows the judge’s

instructions, and there is no evidence to the contrary in this case.17 The judge did not err in

denying the motion for mistrial. Point of error two is overruled.

       In his third, fourth, and fifth points of error, Davis contends that the judge abused her

discretion in prohibiting him from asking potential jurors what effect, if any, that knowledge

of his previous death sentence would have on their answers to the special issues.

Specifically, he wanted to inquire how this knowledge would affect their verdict, if they

would set that knowledge aside when answering the special issues and if they would promise

that the information would not affect their verdict. He argues that the judge’s decision to

limit questions on this subject violated his constitutional rights under the Sixth Amendment

to the United States Constitution and Article I, § 10, of the Texas Constitution.

       After nine days of individual voir dire and the selection of eleven members of the jury,

the Houston Chronicle ran a feature story discussing capital murder cases that had been

reversed for new punishment hearings and the possibility that, under the law at the time of


       15
        Kemp v. State, 846 S.W.2d 289, 308 (Tex. Crim. App. 1992); Stoker v. State,
788 S.W.2d 1, 13 (Tex. Crim. App. 1989).
       16
            See Kemp, 846 S.W.2d at 308.
       17
            See Colburn v. State, 966 S.W.2d 511, 520 (Tex. Crim. App. 1998).
                                                                                   DAVIS—99

their convictions, these defendants may already be eligible for parole if given life sentences

on re-trial. The article specifically mentioned Davis’s case as one of the cases from 1991 that

was reversed and noted that jury selection had commenced. Before voir dire resumed the day

the article was published, Davis moved for a mistrial due to the possibility that some of the

eleven jurors already selected or the remaining prospective jurors might have read the article

or heard about it from someone else. Davis also argued that he had not been given

permission to talk to the jurors about his previous death sentence. Therefore, he believed that

he should be allowed, “at a minimum,” to reexamine the jurors already selected.

       The judge denied the motion for mistrial, noting that the motion presumed that the

members of the venire were actually aware of the newspaper article and its contents. She

would allow the remaining venire members to be asked specifically whether they had read

anything about the instant case. Additionally, she would permit the eleven jurors already

selected to be questioned regarding whether they had read anything about it. Davis again

requested permission to ask the jurors how they would react if they found out that he had

received a death sentence from the previous jury. The judge asked him how the jury would

know that information unless the defense chose to present it. The judge refused to allow

counsel to ask that question in the remaining voir dire and held that, as the case currently

stood, evidence of the prior jury’s punishment verdict was inadmissible unless the defense

chose to offer it; in that event, the defense was to approach the bench before presenting any

such evidence. Defense counsel noted that Davis might testify regarding his two execution
                                                                                   DAVIS—11 0

dates. He then requested confirmation that he would not be permitted to specifically ask the

jurors: “If you were to find out that this defendant received the death penalty and was on

death row from the previous trial, would it affect your verdict in this case?” The judge

responded:

       That’s correct. Because, one, I don’t think you put it in their mind and then
       ask them about it. And, two, it is no different than some of the other questions
       that have been objected to. If you are telling me that the defense intends to
       offer that evidence and then you’re going to ask the jury how they’re going to
       respond to it, that’s a commitment question. And so, if you are talking about
       asking them how they would respond to a specific type of evidence that might
       come into – to the trial that you might introduce and then ask them how they’re
       going to respond to it, that’s akin to many of the questions that you’ve objected
       to as a commitment question.

The judge reconfirmed her denial of the motion for mistrial.

       After the remainder of the jury and alternates were selected, the judge brought back

the first eleven jurors so she could question them regarding whether they knew of the

newspaper article. Prior to questioning, Davis again requested permission to ask what he

conceded was a “commitment question” regarding how the jurors would react if they learned

he had received the death penalty from the previous jury. Specifically, he wanted to know

if the jurors could set aside that information in answering the special issues. Davis stated that

he planned to introduce evidence regarding his prior time on death row, that he believed the

evidence was mitigating, and that he should be allowed to challenge for cause any juror who

would find the evidence aggravating. The judge again held that this was an improper

commitment question and that Davis was not entitled to ask jurors whether they would find
                                                                                    DAVIS—11 1

specific evidence to be aggravating or mitigating. Davis then requested permission to ask

the question “hypothetically”:

       In a hypothetical capital murder case, if you learn that the defendant was on
       death row and had been sentenced to death by a jury, if you learn that in a
       hypothetical case, would you promise us that that would not affect your verdict
       in this case in any form of [sic] fashion? And if they tell us that would affect
       us, we think they should be disqualified for cause. If they say that won’t effect
       [sic] them, then they are good to go.

The judge denied Davis’s request, but agreed to instruct the jurors that they were not bound

by any decisions made by a prior jury and that those prior decisions were not to affect how

they answered the special issues.

       When the judge questioned each of the initially seated eleven jurors regarding whether

they had read the Houston Chronicle article, she also inquired as to whether the decisions of

a prior jury would affect their answers to the special issues. All of the jurors confirmed that

they were aware that they were not bound by any decisions of a prior jury in the context of

answering the special issues and would base their answers solely on the evidence presented.

       A defendant has a constitutional right to a trial “by an impartial jury.” 18 However, this

right is not without limitations, and the judge has broad discretion over the process of

selecting a jury.19 We leave to the trial judge’s discretion the propriety of a particular

       18
           U.S. C ONST. amend. VI (“In all criminal prosecutions, the accused shall enjoy
the right to a . . . trial, by an impartial jury of the State and district wherein the crime shall
have been committed”); T EX. C ONST. art. I, § 10 (“In all criminal prosecutions the
accused shall have a speedy public trial by an impartial jury”).
       19
          Barajas v. State, 93 S.W.3d 36, 38 (Tex. Crim. App. 2002) (citing Allridge v.
State, 762 S.W.2d 146, 167 (Tex. Crim. App. 1988)).
                                                                                 DAVIS—11 2

question, and her decision will not be disturbed absent an abuse of discretion.20

       A judge’s 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. Commitment questions require a venireperson to promise that he will base his

verdict or course of action on some specific set of facts before he has heard any evidence,

much less all of the evidence in its proper context. It is this prejudgment of the value and

importance of certain evidence that is to be avoided unless the law requires such a

commitment.21

       As we set out in Standefer v. State,22 the inquiry for improper commitment questions

is: (a) is the question a commitment question, and (b) does the question include facts–and

only those facts–that lead to a valid challenge for cause?23 Davis concedes the answer to the

first part of the inquiry by admitting at trial and on appeal that his requested questions are

indeed commitment questions. Therefore, we now determine whether the questions include

only those facts that lead to a valid challenge for cause.

       The three questions proffered by Davis each required the jurors to refrain from



       20
            Id.
       21
            Sanchez v. State, 165 S.W.3d 707, 712 (Tex. Crim. App. 2005).
       22
            59 S.W.3d 177 (Tex. Crim. App. 2001).
       23
            Id. at 182.
                                                                                DAVIS—11 3

resolving issues in the case based upon a specific fact not contained in the indictment. Each

question posited by Davis included the fact that the former jury sentenced him to death,

information that was not applicable to the jury’s consideration of the special issues. Davis

additionally argues that the questions were “proper” because they would lead to useful

information to use for exercising peremptory strikes. However, that is not the test to

determine whether a question is a permissible commitment question.

       Here, the new jury was not necessarily going to be informed of the outcome of Davis’s

original punishment trial. This information would be revealed only if Davis chose to

introduce evidence of his own behavior while on death row to explain his reactions to the

setting of an execution date. Davis wanted the jury to consider this evidence to be

mitigating, and he wished to challenge anyone who might consider it to be aggravating.

However, if Davis decided to introduce such evidence, it would be improper to instruct the

jury how they must consider it or ask how they would consider it. Davis could not use voir

dire to determine how the jury might view his trial strategy. The selected jurors and

remaining prospective jurors were properly asked whether the decisions of the previous jury

would influence them, without being informed of the former death sentence. The judge did

not abuse her discretion in refusing to allow the requested commitment questions. Points of

error three through five are overruled.

       In his sixth point of error, Davis posits that the judge improperly prohibited him from

presenting mitigating evidence because she would not allow him to ask the three requested
                                                                                 DAVIS—11 4

commitment questions set out in points of error three through five above. Davis argues that

“[b]efore using such mitigating evidence, [he] needed assurance that the jury would not use

improperly the fact that another jury had answered the Special Issues in a way that put [him]

on death row.”

       The voir dire record shows that the judge specifically told Davis that she was not

prohibiting such evidence, but that if he wished to present evidence of his previous death

sentence during trial, he was required to first approach the bench to discuss compliance with

the evidentiary rules. Davis never attempted to present the complained-of evidence during

trial. Nor did he preserve error by making an offer of proof setting forth the substance of the

evidence to be proffered.24 The mere possibility that the judge’s ruling placed Davis at a

strategic disadvantage does not entitle him relief.25 Because the judge did not err, point of

error six is overruled.

       We affirm the trial court’s judgment.




DELIVERED: October 23, 2013

DO NOT PUBLISH




       24
            T EX. R. E VID. 103(a)(2).
       25
        Ripkowski v. State, 61 S.W.3d 378, 389-90 (Tex. Crim. App. 2001) (“[F]acing
a dilemma is not enough to create an actionable claim.”).
