                                     In The

                               Court of Appeals
                   Ninth District of Texas at Beaumont
                          ____________________
                              NO. 09-15-00328-CR
                              NO. 09-15-00329-CR
                              NO. 09-15-00330-CR
                              NO. 09-15-00331-CR
                              NO. 09-15-00332-CR
                          ____________________

                 KIMBERLY KUCERA ADAMS, Appellant

                                       V.

                      THE STATE OF TEXAS, Appellee


               On Appeal from the County Court at Law No. 5
                         Montgomery County, Texas
              Trial Cause Nos. 14-294731, 14-294732, 14-294733,
                          14-294734 and 14-294735


                         MEMORANDUM OPINION

      Kimberly Kucera Adams (Adams or Appellant) was charged by information

with five counts of cruelty to livestock animals for failing to provide necessary

food, water, or care to horses that were in her custody. See Tex. Penal Code Ann.

§ 42.09 (West 2011). A jury found Appellant guilty on all five counts and assessed

                                        1
punishment at one year in jail and a $2000 fine for each count. Appellant timely

appealed, raising three issues. We affirm.

                                EVIDENCE AT TRIAL

Testimony of Officer Dunn

      Animal Control Officer Chris Dunn (Officer Dunn or Dunn) testified for the

State. In January of 2014, Officer Dunn was called to a location in Montgomery

County regarding dead horses and “a divorce situation[.]” According to Officer

Dunn, Adams lived at the location. Dunn explained that when he arrived he found

fifteen living horses on the property, and he also saw three dead horses near the

front gate in the pens and another dead horse in the barn. Dunn testified that it

appeared to him that the dead horses had been there a long time because they were

in a state of decomposition, although he explained that the dead horse in the barn

was not “as decomposed” as the others.

      Dunn noticed that about ninety percent of the fence boards were “chewed

through or chewed on[,]” which suggested to him that the horses lacked food, and

he was concerned about the welfare of the horses. According to Dunn, there was

no hay or “feed[,]” and Adams told him she had run out of food for the horses that

morning. Dunn testified that there were several places nearby that sold “horse feed

or hay[,]” but Adams told him she was going to Woodville to get hay. Dunn also

                                         2
did not see any water for the horses, and the lack of water suggested to him that

Adams was not taking care of the horses. Dunn explained that he could feel the

ribs on the horses and that some horses were eating their own manure, which led

him to conclude that the horses had not been fed. Dunn also saw that some of the

horses had diarrhea, and based on his experience, this suggested the horses were

sick or had parasites. Officer Dunn also testified that all the living horses on the

property were underweight and some of the horses had rain rot around the hooves,

which he explained was an “infection and fungus of the skin caused by warm,

damp climate.”

      According to Dunn, Adams told him that some of the horses had been show

horses, which surprised him because the horses were not in good shape. Dunn also

explained that Adams said the dead horses died in October of 2013 and that she did

not want her husband to find out “because of income tax reasons[]” and did not

want her husband to claim the horses on his income taxes before the first of the

year.1 Dunn also agreed that Adams also told him she believed her husband had

poisoned the animals.

      Officer Dunn explained to the jury that he was confident of his opinion that

the horses were not in good health, he instructed Adams to get food for the horses
      1
       We note that some witnesses referred to Michael Adams as Appellant’s
“husband” and others refer to him as her “ex-husband.”
                                         3
right away, and he also contacted the Society for Prevention of Cruelty to Animals

(SPCA). According to Dunn, when he returned to the property about three days

later, he observed three bales of hay, a water trough containing water, and some

bags of food in the garage. The State had Dunn identify State’s Exhibit 177, a

videotape, which was admitted into evidence without any objection. Dunn

explained to the jury that on the day of the seizure, he examined the property and

horses again. Dunn agreed that, based on his experience and training, he formed an

opinion that Adams had unreasonably failed to provide food, water, or care for the

living and dead horses on her property. Dunn also testified that he had seen no

evidence that the problems with the animals were caused by hunting, trapping,

wildlife management, wildlife depredation control, or husbandry or agricultural

practices. 2

Testimony of Marshall Hefley

       Marshall Hefley (Marshall) testified that Adams was his “birth mother[,]”

but that his father had full custody of him since he was young. According to


       2
        Under 42.09(f), it is an exception to the application of section 42.09 if the
conduct engaged in by the actor is a generally accepted and otherwise lawful form
of conduct occurring solely for the purpose of or in support of fishing, hunting, or
trapping, or wildlife management, wildlife or depredation control, or shooting
preserve practices as regulated by state and federal law, or animal husbandry or
agriculture practice involving livestock animals. See Tex. Penal Code Ann.
§ 42.09(f) (West 2011).
                                         4
Marshall, he visited Adams in 2013 and saw that the horses were in “extremely

poor[]” condition and that the horses had “drastically declined[]” from their prior

“pristine condition” in 2010 when they were show horses. Marshall explained that

he told Adams he was concerned about the horses’ health and that, if she could not

care for them, she should get rid of or sell them. According to Marshall, he knew

that once Adams’s divorce became final, that she would not be able to afford to

care for the horses, and that when he advised Adams to sell the horses, she

instructed him that he “was no longer to come out there or have anything to do

with them.” Marshall also explained that Adams had a drinking problem and that

in 2013 he was concerned after seeing her intoxicated.

      Marshall told the jury that while Adams was going through her divorce from

Michael, Michael’s only access to the property was when Adams said it was

allowed. Marshall explained, that during the marriage before Adams and Michael

separated, Michael “had a great responsibility [for the horses]. He paid for all the

feed. He helped with all the shows, helping get ready, doing everything necessary,

making sure everybody was there on time, went to all the shows.” According to

Marshall, once the divorce commenced, Adams decided she could care for the

horses on her own. Marshall also explained that, although there was a pond at the




                                         5
front of the property, the horses typically drank from water troughs in the back of

the property, but there was no automatic system to fill the troughs.

Testimony of Matthew Roper

      Matthew Roper (Matthew), Adams’s eldest son, testified that he grew up

around Adams and her horses. According to Matthew, Adams had been around

horses as long as he could remember and “[s]he was probably the most

knowledgeable person about horses that [he] knew.” But, Matthew explained that,

when he visited his mother in 2013, the horses

              . . . definitely weren’t in show condition. They didn’t look like
      they’d been clipped or groomed. The fencing had all kind of been
      chewed through. The trees, all the bark was off of it. They were just a
      little bit thinner [] at that point. She was trying to maintain that whole
      household and horses on her [] own. The horses were starting to show
      that.

      Matthew also testified that he observed “at least one horse dead on the

property[]” in November or December of 2013, and he was concerned about the

health of the horses still living on the property at that time. According to Matthew,

it was “pretty obvious something needed to be done[]” and he told Adams he was

concerned about the health of the horses. He explained that Adams did try to care

for the animals and he did not believe the horses were being “completely

neglected[]” but he stated “I think more should have been done to save them.”

Matthew testified that there was not enough “feed” for the horses, and that the
                                          6
neighborhood rules concerning the number of horses on a property were “a huge

fight for Adams and her ex-husband[.]” Matthew explained that, when he told

Adams of his concern,

            [s]he was very worried, obviously. She had said she did a lot of
      research online and talked to some of her veterinarian friends and
      thought Mike, her ex-husband, or soon to be ex-husband, was
      poisoning the horses. And he bought some kind of plant and he was
      throwing it over the fence and they were eating it. And that’s what
      was causing them to get sick and die.

Matthew was shocked and did not believe that Michael would do something like

that. Matthew also testified that Adams “was scared and had to keep[] a lookout for

anyone else coming on the property. Asking neighbors if anyone had been coming

over. She was convinced someone [was] poisoning [the horses].” According to

Matthew, Adams had talked with him about how to dispose of a dead horse, and

she told him “she was worried that her husband would get the tax benefits from the

business if they found out the horses started dying. So she wanted to keep it low

key.” Matthew explained that Adams was going through a divorce at that time, she

had a drinking problem, she did not have a job, and she was living on income she

was getting from the deceased father of two of her children.

Testimony of Deputy Smith

      Deputy Don Smith (Deputy Smith or Smith), with the Montgomery County

livestock division, explained that as a livestock officer, he had investigated
                                         7
“thousands[]” of animal cruelty cases. Smith testified that he went to Adams’s

home on January 31, 2014, and that she was upset as they talked about the animals.

Smith explained that he observed fifteen live horses on the property and three dead

horses. According to Smith, Adams said she believed the horses had died after her

husband had poisoned them and that he had poisoned the horses that were her

favorites, and, on direct examination, he explained as follows:

      Q. Did she provide you any evidence whatsoever of the poisoning?

      A. No, sir.

      Q. Other than the dead horses?

      A. No, sir.

      Q. Did you ask her a number of times about the poisoning?

      A. Well, I asked her why she thought he’d poisoned them.

      Q. Okay. What did she say?

      A. They were going through a divorce. And those three horses were
      her favorite, and he poisoned them because of that.

      Q. As far as you can tell did she ever report this poisoning to law
      enforcement?

      A. No.

      Q. And how -- when you asked her how were the horses poisoned
      what did she say?

      A. I don’t know how he did it, but he did it.
                                         8
      Q. Okay. Again, other than the dead horses, did she offer a scrap of
      evidence to corroborate that her husband had poisoned these horses?

      A. No, sir.

      Deputy Smith described what he observed on Adams’s property. Smith

explained that the fences showed that the horses were chewing the fences, which

indicated to him that the horses lacked food. Smith observed both underweight or

thin animals and dead animals on the property. Smith also noticed the water trough

was empty, he did not find “one scrap[]” of hay, and he did not find any horse

“feed[,]” although Adams said she fed the horses one to two scoops of “feed” a

day. Smith told Adams to “go get feed and hay for the animals.” Smith also

observed some horses with diarrhea, some horses eating their own manure, and

some horses with rain rot.

      Smith explained that when he returned to Adams’s property with a seizure

warrant and to meet with the SPCA, he observed five horses standing near a dead

horse. Smith explained that he regarded it as unusual for an owner to leave the

dead animals lying out. According to Smith, taking care of a horse is expensive,

and Smith’s investigation led him to believe that Adams did not have a job.

      Smith testified that it was his opinion that Adams had been cruel to her

livestock within the meaning of the Penal Code, Adams could not take care of the

animals, Adams unreasonably failed to provide food, water, or care for the fifteen
                                        9
living horses and the three dead horses, and Adams’s conduct relating to the horses

was not related to fishing, hunting, animal husbandry, or agricultural practices

involved with livestock animals.

Testimony of Deputy Morrow

      Deputy Dwayne Morrow (Deputy Morrow or Morrow) testified that he is a

livestock officer for Montgomery County and he has investigated “close to []

thousands” of animal cruelty cases. Morrow explained that he went to Adams’s

house on January 31, 2014, pursuant to a phone call he received from Deputy

Smith concerning horses on the property. According to Morrow, upon arrival, he

could see underweight horses as well as dead horses. Morrow explained that

Adams said two of the horses died in October and another died in December, that

the horses died because they had been poisoned, and that she had not buried the

horses because she did not want her ex-husband claiming them for income tax or

filing an insurance claim.

      Morrow testified that he did not observe any “feed” for the horses, and

Adams told him she did not have any. Morrow explained that he observed fences

that had been chewed and only a “minimal” amount of water for the horses.

Morrow also observed horses eating limbs and bark off a tree. Morrow was

concerned about the welfare of the horses, and he returned the following week with

                                        10
the SPCA and a seizure warrant. Morrow agreed that, if he had left the horses in

Adams’s care, more horses would have died, and based on his training and

experience, he believed that Adams unreasonably failed to provide food, water, or

care to the fifteen living and three dead horses.

Testimony of Deborah Michielson

      Deborah Michielson (Michielson) testified that she is a senior animal cruelty

investigator with the Houston SPCA, and that she has personally investigated

thousands of animal cruelty cases. Michielson assisted in the investigation and she

visited Adams’s property on or about February 5, 2014. The SPCA had received

reports of several deceased animals on Adams’s property and, because of the

possibility of a contagious disease, a veterinarian also went with Michielson to the

property. According to Michielson, there were three dead horses on the property.

Michielson testified that it was not good husbandry practice to leave the deceased

animals with the living animals, and she regarded it as “disturbing.”

      Michielson testified that the water trough on the property had very little

water in it and some fence boards were chewed, either due to lack of food or

boredom. Michielson also regarded the lack of water as “alarming[.]” At trial, the

State showed Michielson several photographs taken at Adams’s property of several

of the horses. Using the photos, Michielson then described the visible health

                                          11
problems she observed with the horses, including “an unthrifty hair coat,” an open

sore, as well as overgrown and untrimmed hooves, being underweight, and having

rain rot.

       Based on her training and experience, Michielson concluded that the horses

living on Adams’s property were not in good health, were underweight, some had

rain rot, some had hoof issues, and the animals were in “poor living conditions[]”

that resulted from Adams’s neglect. The State asked Michielson what seemed to be

the underlying problem, to which she responded

             [t]here was lack of general care. You had deceased horses not
       removed, which could present a health hazard. You had underweight
       horses . . . . You know the big thing to me was seeing the animals --
       live animals walking around with deceased animals in unclean
       conditions and lack of water.

Testimony of Sarah Hall

       Sarah Hall (Hall) testified that she is a photographer and she and her

husband have a business raising, training, and showing horses. Hall testified that

she had sold four horses to Adams about three or four years earlier, including a

horse called Jimmy. Hall explained she had heard there was a dead horse in the

barn at Adams’s property, and she feared it was Jimmy because she knew Adams

kept Jimmy in the barn. Hall told the jury that she gave Officer Dunn a photograph




                                       12
of Jimmy, and Dunn was able to confirm that the dead horse in the barn was

Jimmy.

Testimony of Dr. Frank Schuman

      Frank Schuman, D.V.M. (Dr. Schuman or Schuman), testified that he

accompanied the SPCA to Adams’s property in February 2014, and that he treated

a number of horses that were seized from Adams. Upon arriving at the property, he

observed that “[f]or that number of horses [it was] a small property, as well as very

muddy. There was no forage. And all of the fencing had been chewed and whittled

on by the horses.” Schuman explained that chewed fences are typically a sign that

the animals are malnourished. Dr. Schuman’s veterinary records on the horses

seized were admitted as State’s Exhibit 183.

      Schuman explained that his records for the white foal indicated the foal was

quite underweight, had overgrown hooves, showed signs of parasites and anemia,

and had some precursors to pneumonia. Dr. Schuman testified that the foal was in

poor health and that proper nourishment and shelter as well as appropriate

husbandry could have prevented this foal’s ailments.

      Schuman discussed the records for a palomino mare, and noted the mare was

underweight, had an “alarmingly low body condition score[,]” the horse’s teeth had

not been floated or filed for “quite awhile[,]” the skin showed rain rot and multiple

                                         13
abrasions and scars, there was severe matting of the mane and tail, “extremely

overgrown” hooves that were starting to chip and crack, showed muscle atrophy,

and had signs of parasites. Schuman’s examination noted that the abrasions present

were due to horse bites, and he explained this is typical for horses in groups that

are competing for a small amount of available food. Schuman testified that the

palomino mare was in poor health.

      Dr. Schuman addressed the records for the paint foal and explained that the

foal had a very low body condition score, was running a fever, showed signs of

pneumonia, the skin was in bad condition, showed rain rot and abrasions, all

hooves were overgrown, exhibited muscle wasting, showed signs of parasites, and

was dehydrated. Schuman stated that “this foal is in very poor health.”

      Schuman next addressed the records for the sorrel mare, which he

determined had a very low body condition score and was “[e]xtremely

underweight.” The sorrel mare also showed significant dental abnormalities, rain

rot, multiple abrasions and scars likely due to bite wounds, overgrown hooves,

muscle atrophy, had signs of parasites and signs of pain due to arthritis, and was

dehydrated and hypoglycemic.

      Dr. Schuman testified the blood work and physical exams he performed on

the animals seized from Adams’s property showed no signs of poisoning. Dr.

                                        14
Schuman explained that he was not able to do any testing on the dead horses

because they had been deceased for such a long time. Schuman stated that, based

on his evaluation of the fifteen surviving horses as well as looking at the deceased

horses, the “most likely conclusion is that the horses died of lack of nourishment,

electrolyte imbalances,” and general lack of care. Schuman also testified that

“[t]here’s not really a poison to my knowledge” that would be consistent with the

symptoms displayed by the horses.

Testimony of Kimberly Adams

      Adams testified on her own behalf. Adams explained that she had worked in

horse-related businesses since the early 1990s, and worked as a riding instructor,

facility manager, and horse trainer. In 2007, Adams’s husband, Michael, bought

their home on Northcrest Circle, in New Caney, which has nine acres and a barn,

for the purpose of allowing Adams to keep horses. In 2010 or 2011, Michael then

gave her the business of “Adams Horse Ranch, Inc.,” and he instructed her to

conduct the business so that they could claim it as a tax deduction. Adams

explained that the business started with “seven to nine” horses, and that she did

well showing several of the horses during 2012 and 2013, winning ribbons for

various shows and a belt buckle. Defense counsel marked several of the ribbons

and the buckle for demonstrative purposes as Defense Exhibits 1 through 7.

                                        15
      According to Adams, things changed “when we were going through our

divorce the horses started getting into poor condition[].” Adams recalled that at one

point she was supposed to appear in court for the divorce, one horse went down

and could not get up, and as a result, she was late to the hearing. Adams testified

that she told the judge during the divorce case that she believed Michael was

poisoning the horses. According to Adams, the first horse that went down and

could not get up was named “Kiwi,” and that at some point three more horses went

down and could not get up, and those horses died.

      According to Adams, her husband “had threatened to kill them in the past[]”

and “[w]hen you go through a bad divorce if a man wants to hurt you he tries to

hurt you through your kids or what you love next. And that’s my animals.” She

told the jury that one horse seemed to have a problem with a hip and was

eventually diagnosed with EPM, which she explained is a neurological condition.

Another horse dropped weight and had rectal bleeding and eventually that horse

died. She explained that the horse named Jimmy died in December, and the other

horses died in October or November.

      Adams testified that, in addition to receiving “Social Security money for the

kids[,]” she worked as a certified equine appraiser, she gave riding lessons, and

worked informally as a horse broker. She denied that she used any money she

                                         16
received from her husband to pay expenses for the horses, and she explained that

the money she received from Social Security “went straight to the horse care

because all that money was spent on the horses because that was the way I was

going to take care of them.” She testified that she had “accounts running” with

various “feed stores” because she had difficulty paying all the costs related to the

horses, and that she did not ask her sons for financial help. She also agreed that, in

her sworn application for a court-appointed attorney, the only income she reported

was from Social Security. She testified that she could not sell any of the horses

during the divorce because she was under a court order not to sell the horses until

after the divorce was final.

      When asked about the fencing and whether it was chewed by the horses,

Adams explained that the horses would sometimes kick and the boards would

break, and that she did not want to spend money repairing the fence because she

knew she was not going to be able to stay on the property. Regarding the empty

water troughs, Adams explained that she liked to let the water level in the troughs

get low so she could clean them with a pressure washer before refilling them.

      Adams agreed that when officers visited the property on January 31, 2014,

she had fifteen living and three dead horses. When asked why she did not bury the




                                         17
dead horse that was in the barn, Adams replied that she could not have done it on

her own and

            I would have had to call the county. And they will bury for free
      because they did bury one. But I knew that because of -- trying to pick
      my words again. Sorry. I knew that my ex-husband would find out
      because of how tight he is with a lot of people in Montgomery County
      and the officials and police officers and animal control was going to
      have to come out there[.]

She explained that she was given written instructions and a timeframe in which to

comply and that she understood “that they would come back on random occasions

and I better have proof of feed and hay and I had a certain time period to have a vet

come and basically . . . to vet all the horses.” She believed she had thirty days to

comply. According to Adams, she purchased “feed” the same day she received the

instructions from Animal Control, and she also cleaned and filled the water

troughs. She testified that the officers returned “[a] day or two later[]” and she

complained to the officers because she believed she still had time to comply.

      When asked if she thought she did anything wrong, Adams explained

             . . . I was constantly on the phone with vets, calling other
      equine professionals, talking to people on Facebook, doing all kinds
      of research. I bought all kinds of medicine from my vet. I was doing
      feed and hay and medicine. And I honestly believed that because he
      was -- it’s already been testified as far as the tax deductions -- I
      honestly believed on January 1st everything would stop. And we were
      treating symptoms of the horses.

              ....
                                         18
             I believe that I did everything I could as far as vets, feed, and
      hay.

      On cross-examination, Adams agreed she did not call 911 to report that the

horses had been poisoned. She also agreed she had no physical proof that her

husband poisoned the horses. When asked to explain why she did not have a

veterinarian come to her property, she explained that her primary vet that is “an

hour and a half drive[]” away would not do a “farm call” to her property and that,

when she called that vet’s office, they told her “if you want to bring them in, you

can, but you can handle this.” Adams denied that she intentionally or knowingly

denied food or medical care to the animals.

Testimony of Benjamin Cook

      Benjamin Cook (Cook) testified for the Defense. Cook indicated that he met

Adams in January of 2013, they dated for “about six months[,]” and they remained

friends. He agreed that he had personal knowledge of how she cared for her

animals when he visited her property. Cook testified that, when he first visited

Adams’s property, he saw that some of the horses had cuts or scrapes and Cook

saw Adams treat the horses’ wounds, but “at that time there [were] no horses that

had died.” Cook testified that during the summer of 2013, he helped Adams take

one of the horses to a vet. According to Cook, the “[h]orses were always fed well

when [he] was around[,]” from about April 2013 through October 2013, and that
                                         19
“there was always feed [or] hay.” Cook also testified that on one visit to Adams’s

property, near the end of 2013, he observed a dead horse outside, and Cook

described Adams as “very upset about the death of the horses.” Cook testified that

from everything he observed he would allow Adams to care for his dogs. Cook

explained that Adams always showed concern for the horses and kept medications

for the horses in a refrigerator in the barn.

Testimony of Susan Dancer

      Susan Dancer (Dancer) also testified for the defense and by agreement of the

parties her testimony was provided telephonically. Dancer has been in charge of

the Texas Blessing Animal Rescue (TBA Rescue) for about fourteen years. Dancer

explained she met Adams early in 2013 when Adams taught a training clinic held

by the TBA Rescue. Dancer denied having any personal knowledge of the

condition of horses as they existed on Adams’s property; but, Dancer also testified

that, when Adams brought four or five of her horses to a TBA Rescue event in

January of 2014, the horses were not underfed and Dancer agreed those horses

“looked more or less okay[.]” Dancer agreed it was not a “healthy practice” to have

your horses eating just a few yards from the carcasses of the dead horses.




                                           20
Testimony of Michael Adams

      The State called Michael Adams (Michael) to testify as a rebuttal witness.

Michael testified that Adams is his ex-wife, and their divorce was final on

December 3, 2013. State’s Exhibit 211, a letter to Adams written by Michael’s

attorney, was admitted into evidence over the defense’s hearsay objection. Michael

agreed that, during the pendency of the divorce, he had instructed Adams through

his attorney to sell the horses that remained on her property and that State’s Exhibit

211 communicated this instruction. Michael also agreed that the final divorce

decree awarded Adams all the horses remaining on her property. Michael did not

recall whether there was a standing order concerning property in the divorce case,

and he testified that he and Adams could have made mutual agreements between

them to sell property before the divorce became final.

Other Evidence

      State’s Exhibit 177, a video of the animals and the property made on the date

the animals were seized, was admitted into evidence and published to the jury.

Numerous photographs taken at Adams’s property on or about February 5, 2014,

including photographs of the animals, were also admitted into evidence and

published to the jury.




                                         21
                    COMMITMENT QUESTION DURING VOIR DIRE

      In her first issue, Appellant argues that the trial court abused its discretion by

sustaining the State’s objection that a question the defense asked was an improper

commitment question. Appellant argues that, even though the question was a

commitment question, it was a proper question because it “gives rise to a valid

challenge for cause and only contains those facts necessary to test whether a

prospective juror is challengeable for cause.”

      The trial court has broad discretion over the process of jury selection.

Barajas v. State, 93 S.W.3d 36, 38 (Tex. Crim. App. 2002). We review a trial

court’s ruling regarding an alleged improper commitment question under an abuse

of discretion standard. Id. In this review, our focus is on whether the Appellant

proffered a proper question regarding a proper area of inquiry. See id. A

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

from resolving, an issue a certain way after learning a particular fact. See Standefer

v. State, 59 S.W.3d 177, 179 (Tex. Crim. App. 2001). However, not all

commitment questions are improper. Id. at 181. For example, an attorney may ask

a potential juror if she can consider the full range of punishment in a case. Id.

When the law requires jurors to make certain types of commitments, then the

attorneys may ask whether the jurors can follow the law. Id. Generally speaking,

                                          22
when “the law does not require the commitment, a commitment question is

invariably improper.” Id. Accordingly, it is an impermissible commitment question

to ask a juror whether she considers a certain type of evidence to be mitigating. Id.

A question is also impermissible “if it attempts to commit the juror to a particular

verdict based on particular facts.” Barajas, 93 S.W.3d at 38 (citing Standefer, 59

S.W.3d at 181). Improper commitment questions are not allowed because we want

to “ensure that the jury will listen to the evidence with an open mind” and render a

verdict based upon the evidence. Sanchez v. State, 165 S.W.3d 707, 712 (Tex.

Crim. App. 2005).

      Nevertheless, a party may be allowed to ask a question of a potential juror to

determine whether a juror may be challenged for cause because he or she possesses

a bias against the law upon which the State or defendant is entitled to rely.

Delacerda v. State, 425 S.W.3d 367, 382 (Tex. App.—Houston [1st Dist.] 2011,

pet. ref’d) (citing Tex. Code Crim. Proc. Ann. art. 35.16(b)(3) (West 2006); Mason

v. State, 116 S.W.3d 248, 255 (Tex. App.—Houston [14th Dist.] 2003, pet. ref’d)).

A party may also be entitled to explore with a potential juror whether the juror

could convict in the absence of certain physical evidence or whether the juror

would hold the State to a burden higher than beyond a reasonable doubt.

Delacerda, 425 S.W.3d at 382.

                                         23
      To determine whether a voir dire question calls for an improper commitment

the court must determine (1) whether a voir dire question is a commitment

question, (2) whether the commitment question gives rise to a valid challenge for

cause, and (3) whether the question includes only necessary facts. See Lee v. State,

206 S.W.3d 620, 621 (Tex. Crim. App. 2006) (citing Lydia v. State, 109 S.W.3d

495, 499 (Tex. Crim. App. 2003); Standefer, 59 S.W.3d at 179-82). We consider

the voir dire as a whole when determining whether a question constitutes an

improper commitment question. See Halprin v. State, 170 S.W.3d 111, 119 (Tex.

Crim. App. 2005).

      During voir dire, the following exchange occurred:

      [Defense Attorney]: . . . What I want to know is -- and this is just a
      question, generally, just for the first row -- how many people in the
      first row believe that if they see -- and this is just a general question --
      if you see photos of any animals, especially horses, that you perceive
      to be abused that you think you know what, I don’t think I’m going to
      sit fair and impartial on this case because there may be other photos
      just like that or worse, and that’s probably going to cause me to not be
      very fair and impartial? Because we anticipate that they are going to
      present photos of that nature.

      [State’s Attorney]: Your Honor, may we approach?

      THE COURT: Yes.

      (Discussion at the bench, on the record)




                                          24
      [State’s Attorney]: It’s really a commitment question. If you see
      evidence, photography evidence that appears horses are abused you
      will find that they are abused. That is a classic commitment question.

      [Defense Attorney]: Not find that they are abused. I just said would
      you be fair and impartial.

      THE COURT: Could you be fair and impartial? That I’m fine with
      that. If you feel you could be fair and impartial. That’s fine.

      [Defense Attorney]: Okay. What do you think if you see photos of
      animals that the state is saying have been abused, that you see in some
      way? Do you think you are going to be fair and impartial? If I see
      photos that I think showed animals to be abused in some way, shape,
      or form I don’t think I’m going to sit there and be impartial I’m just
      going to close off --

      [State’s Attorney]: Your Honor.

      THE COURT: Okay. I’ll sustain the objection.

      [Defense Attorney]: Again, to be fair and impartial. If you believe that
      what you are looking at, that’s not going to cause you, in any way, to
      give my client a fair trial? Okay. Number one, five, okay. Let’s go
      number one and --

      [State’s Attorney]: Your Honor, renew my objection.

      THE COURT: Okay. I’m still going to sustain it.

      Adams admits in her appellate brief that the question of whether jurors could

be fair and impartial after seeing photographs of abused horses is a commitment

question, but argues it was not an improper commitment question because the line

of questioning was an attempt to determine “whether they would be fair and

                                        25
impartial if they were to see photos of any animals, especially horses, that they

perceive to be abused.” Appellant argues the questioning was proper because a

member of the panel who could not be impartial would be biased or prejudiced

against the defendant and could be challenged for cause.

      The Court of Criminal Appeals has explained that neither the State nor the

defendant may ask the venire “‘under the evidence that will be introduced in this

case, would you convict the defendant?’” See Barajas, 93 S.W.3d at 39. When a

specific set of facts are supplied beyond what is necessary to sustain a challenge

for cause, it may render improper what would otherwise be a proper question.

Delacerda, 425 S.W.3d at 381 (quoting Braxton v. State, 226 S.W.3d 602, 604

(Tex. App.—Houston [1st Dist.] 2007, pet. dism’d)). The questions at issue in the

case at bar did not address a potential bias against a phase of the law but sought to

commit a juror regarding how the juror would respond in the face of specific

evidence. Compare id. at 383 (question to the venire was not improper because it

“‘did not attempt to commit the prospective jurors to a specific set of facts prior to

the presentation of evidence at trial[]’”) (quoting Braxton, 226 S.W.3d at 606).

Therefore, we conclude that the trial court did not abuse its discretion in sustaining

the objections made by the State and refusing to allow the question.




                                         26
      Nevertheless, even if the trial court erred, we subject the erroneous exclusion

of a proper question during voir dire to a harm analysis under rule 44.2(b). See

Woods v. State, 152 S.W.3d 105, 109-10 (Tex. Crim. App. 2004) (citing Tex. R.

App. P. 44.2(b); Jones v. State, 982 S.W.2d 386, 391-94 (Tex. Crim. App. 1998));

see also Easley v. State, 424 S.W.3d 535, 541 (Tex. Crim. App. 2014) (trial court’s

error in prohibiting defense counsel from asking proper questions of the venire was

non-constitutional error). “Under this analysis, a defendant is harmed only if (1) he

exhausts all of his peremptory challenges, (2) he requests more challenges, (3) his

request is denied, and (4) he identifies an objectionable person seated on the jury

on whom he would have exercised a peremptory challenge.” See Wingo v. State,

143 S.W.3d 178, 186 (Tex. App.—San Antonio 2004), aff’d, 189 S.W.3d 270

(Tex. Crim. App. 2006) (citing Anson v. State, 959 S.W.2d 203, 204 (Tex. Crim.

App. 1997)). After examining the record and applying the requisite harm analysis,

we conclude that any error by the trial court by sustaining the State’s objection and

in disallowing the question was harmless. Appellant failed to establish that she

exhausted all peremptory challenges, that she made a request for more challenges,

that her request was denied, and that she identified an objectionable person seated

on the jury on whom she would have exercised a peremptory challenge. Id. at 187

(citing Anson, 959 S.W.2d at 204); cf. Halprin, 170 S.W.3d at 118 n.7 (“Appellant

                                         27
does not state in his brief whether he challenged these veniremembers for cause, or

whether he exercised peremptory challenges on them, or whether any of them

actually sat on his jury.”) (citing Anson, 959 S.W.2d at 204). We overrule

Appellant’s first issue.

                             ADMISSION OF EVIDENCE

      Appellant’s remaining two issues challenge the trial court’s admission of

certain evidence. In her second issue, Appellant argues that the trial court abused

its discretion by “allowing Appellant’s son [Matthew] to testify about her mental

state over defense counsel’s objection as to speculation and qualification.”

Appellant contends that Matthew lacked the requisite personal knowledge

necessary to answer the question of whether his mother was “losing touch with

reality[.]”3 And in her third issue, Appellant argues that the trial court erred in

admitting a letter generated by Appellant’s ex-husband’s attorney, which Appellant

argues was inadmissible hearsay evidence.

      We review a trial court’s decision regarding the admission of evidence for

an abuse of discretion. See De La Paz v. State, 279 S.W.3d 336, 343-44 (Tex.

Crim. App. 2009). “As long as the trial court’s ruling is within the ‘zone of


      3
        We note that Appellant did not object at trial, nor does she argue on appeal,
regarding a lack of foundation or to the qualification of the witness to make such a
judgment or render such an opinion.
                                         28
reasonable disagreement,’ there is no abuse of discretion, and the trial court’s

ruling will be upheld.” Id. (quoting Montgomery v. State, 810 S.W.2d 372, 391

(Tex. Crim. App. 1991) (op. on reh’g)); State v. Mechler, 153 S.W.3d 435, 439-40

(Tex. Crim. App. 2005). If the trial court’s decision is correct on any theory of law

applicable to the case, we will uphold the decision. De La Paz, 279 S.W.3d at 344;

Osbourn v. State, 92 S.W.3d 531, 538 (Tex. Crim. App. 2002).

Complained-of Testimony from Matthew

      At trial, the State questioned Matthew, Appellant’s son, concerning

Appellant’s treatment of the horses, and the following exchange occurred:

      [State’s Attorney]: Would you say that during that time your mother
      was losing touch with reality?

      [Defense Attorney]: Objection. Calls for speculation. It’s not
      qualified.

      THE COURT: Overruled.

      [State’s Attorney]: You can go ahead and answer the question.

      [Witness Matthew]: I don’t know if she was losing touch with reality.
      There was definitely a sense of desperation, holding onto any glimmer
      of hope that she could make this work. She wanted to succeed. She
      felt like she had something to prove to people that she could be
      successful on her own, that she didn’t need a man in her life to do
      these things. She was holding onto this so she could feel like she
      could make it work.




                                         29
      A witness may testify to a matter of which he has personal knowledge. See

Tex. R. Evid. 602. Evidence to prove personal knowledge may consist of the

witness’s own testimony. Id. Although an individual would not have personal

knowledge of another’s mental state, it is quite another thing if the testimony is an

“interpretation of the witness’s objective perception of events (i.e. his own senses

or experience).” Fairow v. State, 943 S.W.2d 895, 899 (Tex. Crim. App. 1997); see

also Solomon v. State, 49 S.W.3d 356, 364 (Tex. Crim. App. 2001). A person may

possess “personal knowledge of facts from which an opinion regarding mental

state may be drawn.” Fairow, 943 S.W.2d at 899. A witness’s opinion testimony

will satisfy the personal knowledge requirement if it is an interpretation of the

witness’s objective perception of events. Id.; see also Osbourn, 92 S.W.3d at 535-

36 (a witness’s testimony can include opinions, beliefs, or inferences as long as

they are drawn from his own experiences or observations).

      In this case, Matthew testified that Appellant is his mother, he had grown up

around Appellant and her horses, he visited her in 2013, and he personally

observed the condition of the horses. Matthew also testified that his mother asked

for his advice, he knew she was going through a divorce and she was having

problems with money, and he believed she had a drinking problem. Further,

Matthew explained he personally observed Appellant’s response when he told her

                                         30
he was concerned about the health of the horses, and he was “shocked[]” when

Appellant told him her ex-husband was poisoning the horses.

      The portion of the testimony of which Appellant complains was Matthew’s

testimony that his mother was “losing touch with reality[,]” which the trial court

could have determined was merely Mathew’s interpretation or inference based on

his personal perception of the relevant events and was rationally based on what he

had perceived. See Fairow, 943 S.W.2d at 898-900. Therefore, we cannot say the

trial court erred in overruling the objection and admitting the particular testimony.

Admission of Letter

      In her third issue, Appellant argues that the trial court erred in admitting a

letter written by an attorney who was representing her ex-husband Michael. The

State argues that the letter was offered as a rebuttal to the testimony provided by

the Appellant that she could not sell her horses until after the divorce became final.

The State contends the letter was offered not for the truth of the matter asserted

therein, but to show the effect on the listener, and to rebut Appellant’s testimony

that she believed she could not sell the horses.

      At trial, the State offered rebuttal testimony from Michael Adams, the

Appellant’s ex-husband.

      [State’s Attorney]: Yes, Your Honor. State calls Michael Adams.

                                          31
      (Discussion at the bench, on the record)

      [State’s Attorney]: May we approach? We recognize rebuttal is
      narrowly tailored to specific issues. On the stand the defendant said,
      “I couldn’t get rid of these horses.” She wasn’t able to sell them. Mr.
      Adams is going to come in and say, also, that she may or may not be
      divorced. Mr. Adams is going to come in and say, yes, they were
      divorced. Yes, she had the freedom to dispose of the horses in any
      way she could. And that’s all.

      THE COURT: Okay.

      [Defense Attorney]: Judge, if that’s the case I would like to be able to
      put my client up there.

      THE COURT: Yeah. You can rebut the rebuttal, but it has to be
      limited in scope. Unlike other witnesses, it narrows down to what
      we’re talking about [only].

            ....

      THE COURT: Have a seat. I’m going to inform the jury what we’re
      doing at this point. Normally, you hear from the state and each [party]
      calls their own witnesses. This is a rebuttal witness. This testimony is
      only going to be limited to rebutting testimony that’s been put forth.
      After they are finished with their rebuttal the defense may call rebuttal
      witnesses if they choose [to] go ahead. But now the scope is limited to
      only rebuttal of evidence put on by the other side.
             Go ahead.

      During the State’s questioning of Michael, the State asked Michael questions

about the divorce and whether the Appellant could sell the horses during the

pendency of the divorce. The State showed Michael State’s Exhibit 211, a letter

dated June 5, 2013, from Michael’s divorce attorney addressed to Appellant,

                                         32
wherein the attorney conveyed Michael’s proposal of the payment of certain items

pending the final decree and also Michael’s request for Appellant to sell the horses.

The defense objected to the letter on the basis that it was hearsay. The State

responded and explained that the letter was relevant to establish Appellant’s state

of mind, that “she knew she could get rid of the horses.” The court overruled the

objection and allowed the letter into evidence. Thereafter, Michael testified as

follows:

      [State’s Attorney]: . . . During the pendency of your divorce, was
      there ever a point where you instructed the defendant through your
      attorney to sell the horses that were remaining on her property?

      [Witness Michael]: Yes.

      [State’s Attorney]: Is that stated in this letter that was sent to the
      defendant?

      [Witness Michael]: Yes.

      [State’s Attorney]: Okay. Is this the part here? “Accordingly, Mr.
      Adams would like to place the following items on the market for sale
      as soon as possible.”

      [Witness Michael]: Yes, ma’am.

      “Hearsay” means a statement that the declarant does not make while

testifying at the current trial or hearing that is offered into evidence to prove the

truth of the matter asserted in the statement. See Tex. R. Evid. 801(d). If a

statement is being offered not to prove the truth of the matter asserted therein but
                                         33
for some other basis, the statement is not hearsay. Dinkins v. State, 894 S.W.2d

330, 347 (Tex. Crim. App. 1995); Johnson v. State, 425 S.W.3d 344, 346 (Tex.

App.—Houston [1st Dist.] 2011, pet. ref’d) (“An extrajudicial statement or writing

that is offered for the purpose of showing what was said, rather than for proving

the truth of the matter stated therein, does not constitute hearsay.”). For example,

“[s]tatements offered only to show their effect on the listener are not hearsay.”

McNeil v. State, 452 S.W.3d 408, 419 (Tex. App.—Houston [1st Dist.] 2014, pet.

ref’d). This Court has previously stated: “‘The general rule then is that evidence of

written or spoken expressions when offered, not to prove the facts, if any, stated

therein, but to show as an inference therefrom, the state of mind of the person by

whom or to whom they were communicated, is not violative of the hearsay rule.’”

Traders & Gen. Ins. Co. v. Derrett, 340 S.W.2d 305, 311 (Tex. Civ. App.—

Beaumont 1960, writ ref’d n.r.e.) (quoting 1 McCormick & Ray, Texas Law of

Evidence, § 796); see also Phenix v. State, 488 S.W.2d 759, 761-62 (Tex. Crim.

App. 1972) (the rule against hearsay does not apply when an extrajudicial written

utterance is admitted for its nontestimonial value as evidence of a circumstance)

(citing 6 Wigmore on Evidence, §§ 1788-1792); Int’l Brotherhood of Boiler

Makers v. Rodriguez, 193 S.W.2d 835, 842, (Tex. Civ. App.—El Paso 1945, writ




                                         34
dism’d) (citing McCormick & Ray, Texas Law of Evidence, § 357; 6 Wigmore on

Evidence, §§ 1788-1789).

      Even if the complained-of evidence was hearsay and erroneously admitted,

we apply the standard for nonconstitutional error contained in Rule 44.2(b) of the

Texas Rules of Appellate Procedure if the trial court’s ruling merely offends the

rules of evidence. See Solomon, 49 S.W.3d at 365; Melgar v. State, 236 S.W.3d

302, 308 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d). An improper

admission of complained-of evidence is harmless when the record establishes that

essentially the same evidence is admitted elsewhere in the record without

objection. See Marshall v. State, 210 S.W.3d 618, 631 (Tex. Crim. App. 2006)

(“any error in the admission of the complained-of evidence was harmless” when

the record established appellant brought out essentially the same evidence during

his direct examination); Lane v. State, 151 S.W.3d 188, 193 (Tex. Crim. App.

2004) (court of appeals did not err in upholding trial court’s admission of victim’s

out-of-court statements where the record reflected such statements came into

evidence on eight separate occasions without objection) (citing and quoting Valle

v. State, 109 S.W.3d 500, 509 (Tex. Crim. App. 2003) (“An error [if any] in the

admission of evidence is cured where the same evidence comes in elsewhere

without objection.”)).

                                        35
       On direct examination and later during cross-examination, Michael testified

that he gave instructions through his attorney to Adams that she should sell the

horses. Such testimony was admitted without objection, and further inquiry on the

issue was reintroduced into the record during cross-examination by the defense.

Therefore, even assuming it was improper to admit the letter, the complained-of

evidence was harmless because the record establishes that essentially the same

evidence was admitted elsewhere in the record without objection. Marshall, 210

S.W.3d at 631.

       Additionally, based on our review of the entire record, we have fair

assurance that any error in the admission of Matthew’s testimony concerning

Adams’s state of mind or the admission of the complained-of letter did not have a

substantial and injurious effect or influence in determining the jury’s verdict. See

Casey v. State, 215 S.W.3d 870, 885 (Tex. Crim. App. 2007). We overrule

Appellant’s second and third issues on appeal.

       Having overruled all of Appellant’s issues, we affirm the judgments of the

trial court.

       AFFIRMED.


                                                   _________________________
                                                      LEANNE JOHNSON
                                                            Justice
                                        36
Submitted on September 21, 2016
Opinion Delivered November 16, 2016
Do Not Publish

Before Kreger, Horton, and Johnson, J.J.




                                       37
