                       COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                            NO. 02-11-00361-CR


ROBBIE GREEN ROBERTSON                                           APPELLANT

                                        V.

THE STATE OF TEXAS                                                    STATE


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          FROM THE 371ST DISTRICT COURT OF TARRANT COUNTY

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                       MEMORANDUM OPINION1

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                                  I. Introduction

     In two points, Appellant Robbie Green Robertson appeals his conviction of

aggravated robbery with a deadly weapon. We affirm.

                              II. Background

     The State charged Robertson with aggravated robbery with a deadly

weapon.    A jury subsequently found Robertson guilty, and after Robertson
     1
      See Tex. R. App. P. 47.4.
pleaded true to the repeat offender notice in the indictment and the State

introduced Robertson’s 2007 conviction for robbery by threat, the jury assessed

his punishment at twenty-three years’ confinement. Because Robertson’s two

challenges pertain solely to voir dire, we will review that portion of the record in

our discussion below.

                                   III. Voir Dire

      In his first point, Robertson complains about the trial court granting the

State’s challenge for cause to Venireperson #2, and in his second point,

Robertson argues that the trial court erred by instructing the veniremembers on

the incorrect penalty range.

A. Challenge for Cause

      In his first point, Robertson claims that the trial court erred by granting the

State’s challenge for cause to Venireperson #2 because she “only expressed

reservations about assessing punishment at the high end of the punishment

range,” and because the State “never developed this as a bias nor did [it] explain

the law or ask whether she could set aside her beliefs and follow the law.”

Therefore,       Robertson   argues,   the       challenge   for   cause   was   wholly

underdeveloped and the erroneous granting of the challenge resulted in the State

getting an extra strike, “depriving [him] of an equal number of peremptory strikes”

in violation of the state and federal constitutions and code of criminal procedure

article 35.15.




                                             2
      The State can challenge for cause a juror who cannot consider the full

range of punishment. Tex. Code Crim. Proc. Ann. art. 35.16(b)(3) (West 2006).

In reviewing a trial court’s decision to grant a challenge for cause, the court of

criminal appeals has explained that we must

      look at the entire record of voir dire to determine if the evidence is
      sufficient to support the court’s ruling on a challenge for cause. We
      afford great deference to the trial court’s decision because the trial
      judge is present to observe the demeanor of the venireperson and to
      listen to his tone of voice. Particular deference is due when the
      venireperson’s answers are “vacillating, unclear, or contradictory.”
      Consequently, we will reverse a trial court’s ruling on a challenge for
      cause only if a clear abuse of discretion is evident.

Gonzales v. State, 353 S.W.3d 826, 831 (Tex. Crim. App. 2011) (citations

omitted). Further, the erroneous excusing of a veniremember will call for reversal

only if the record shows that the error deprived the defendant of a “lawfully

constituted jury.” Gamboa v. State, 296 S.W.3d 574, 580 (Tex. Crim. App. 2009)

(quoting Jones v. State, 982 S.W.2d 386, 394 (Tex. Crim. App. 1998), cert.

denied, 528 U.S. 985 (1999)).

      With regard to Venireperson #2, the following occurred during voir dire:

      [Prosecutor]: . . . But is there anybody else—other than what we’ve
      talked about, anybody here who just feels like I just can’t sit in
      judgment of another person, whether it’s for philosophical reasons or
      whatever? I know we’ve got some already—

      [Venireperson #26]: I understand that as a United States citizen, it’s
      my responsibility to be a juror, but I have a real hard time deciding
      the fate of another person. I have a hard enough time making
      decisions about my own life. I just don’t think that I could in good
      faith do that.

      [Prosecutor]: Okay. I appreciate that. Anybody else?


                                        3
      [Venireperson #48]: I agree with her.

      [Prosecutor]: You agree? You don’t feel like you would be able to
      sit as a juror and pass judgment?

      [Venireperson #48]: No.

      [Prosecutor]: Okay. Yes, ma’am.

      [Venireperson #18]: I feel like her. I do.

      [Prosecutor]: All right. Ma’am.

      [Venireperson #2]: I do. I feel like I can’t make the commitment to
      the higher end of it.

      [Prosecutor]:  You’re concerned about the high end of the
      punishment range?

      [Venireperson #2]: Yeah. To me, that doesn’t give them a chance
      to come out and do better. [Emphasis added.]

      [Prosecutor]: Okay. Anybody else?

           All right. Well, thanks for participating. . . .   And unless
      anybody has anything else, I think I’m done. Thanks.

Prior to these statements by Venirepersons #26, #48, #18, and #2,

Venirepersons #7, #8, and #55 had already stated their concerns about the

range of punishment.2

      The magistrate granted the State’s challenges for cause to Venirepersons

#8, #18, and #26 before reaching Venireperson #2—the only challenge for cause


      2
       Specifically, Venireperson #8 said that he would not be able to keep an
open mind to the possibility of assessing ninety-nine years, and Venireperson #7
agreed with Venireperson #8, saying that he absolutely could not give someone
as much as ninety-nine years or life. In contrast, Venireperson #55 said that he
had a problem with the low end of the punishment range.


                                         4
that Robertson complains of in this appeal.            The prosecutor argued that

Venirepersons #2, #7, and #55 should be struck for cause based on their inability

to consider the full range of punishment.         The following conversation then

occurred:

      [Defense]: Well, I’d say that [Venireperson #2], we’re not quite
      there. She said she was bothered by the high end. She didn’t say
      she couldn’t give it fair consideration. That’s the note I have.

      ....

      THE COURT: Well, first off, let’s deal with number seven. I believe
      that’s a little bit more easy to deal with. I have him saying, “If it ain’t
      murder, no way,” so I think he’s fairly qualified for the cause.

      My notes have number two as saying, you know, I have it in quotes,
      “No to the higher end.” So I’m going to grant that cause as well.

      The trial court also granted the State’s challenge for cause to

Venirepersons #55 and #48. The trial court then granted Robertson’s challenges

for cause to Venirepersons #1, #10, and #13.3




      3
       Venireperson #1 had been robbed three times. Venireperson #10’s ex-
husband had been held at gunpoint during a robbery, and she also had problems
with believing testimony from an accomplice witness. Venireperson #13 had
been robbed when she worked as a bank teller. Although the State argued that
Venireperson #13 had said that she could differentiate between different factual
circumstances, the trial court replied that it would grant the challenge “out of an
abundance of caution.” See Johnson v. State, 43 S.W.3d 1, 8 (Tex. Crim. App.
2001) (Keller, P.J., concurring) (restating that under Jones, when the State is
granted a challenge for cause that is later asserted to be erroneous, this
constitutes reversible error only if the record shows that the defendant was
deprived of a lawfully constituted jury, that the underlying policy is to liberally
grant challenges for cause, and that courts should err on the side of granting
challenges for cause).


                                          5
      Assuming, without deciding, that the trial court abused its discretion by

granting the State’s challenge to Venireperson #2, we must still determine

whether Robertson was actually deprived of a fair and impartial, lawfully

constituted jury. See Gamboa, 296 S.W.3d at 580 (quoting Jones, 982 S.W.2d

at 394).

      Robertson invites this court to “reassess” the court of criminal appeals’s

decision in Jones to apply rule 44.2(b)’s nonconstitutional harm analysis and to

require a showing that the jury was not “lawfully constituted” before harm can be

found.     Specifically, Robertson argues that he was deprived of a lawfully

constituted jury in that the erroneous granting of the State’s challenge for cause

deprived him of a number of peremptory challenges equal to the State.4

      We may not “reassess,” revisit, or otherwise march to our own drummer in

contravention of the marching orders set forth by the court of criminal appeals.

See Wiley v. State, 112 S.W.3d 173, 175 (Tex. App.—Fort Worth 2003, pet.

ref’d) (“[A]s an intermediate appellate court we are bound to follow the

pronouncements of the court of criminal appeals.”); State ex rel. Vance v.

      4
       In Jones, the court specifically rejected Robertson’s theory that the
erroneous exclusion for cause of a veniremember “is the same as if the State
had been given an extra peremptory challenge,” pointing out that a juror’s
disqualification is not related to the juror’s desirability. 982 S.W.2d at 393–94 (“It
is especially wrong to equate the State’s challenge for cause to a peremptory
challenge, because the State has the right to challenge disqualified jurors even
when their disqualifications might seem to make them favor the State.”). Further,
the court also observed that the State’s ability to exclude a challenged juror
would not affect any of the defendant’s substantial rights “because a defendant
has no right that any particular individual serve on the jury.” Id. at 393.


                                          6
Clawson, 465 S.W.2d 164, 168 (Tex. Crim. App.) (stating that as the court of

criminal appeals is the court of last resort in Texas in criminal matters, “no other

court of this state has authority to overrule or circumvent its decisions, or disobey

its mandates.”), cert. denied, 404 U.S. 910 (1971). Further, as Robertson has

not argued or shown—and the record does not reflect—that the jurors who

served in his trial were not qualified, we conclude that he was not deprived of a

lawfully constituted jury.   See Jones, 982 S.W.2d at 393 (stating that “[t]he

defendant’s only substantial right is that the jurors who do serve be qualified,”

and that “[t]he defendant’s rights go to those who serve, not to those who are

excused”). Therefore, we overrule Robertson’s first point.

B. Penalty Range

      In his second point, Robertson claims that the trial court erred by

instructing the jury on the wrong penalty range, “thus informing the panel

[Robertson] had a prior felony conviction and thereby prejudicing the panel.”

      We will first turn to the magistrate judge’s instruction to the jury panel.

      THE COURT: Okay. I will now give you some legal principles that
      will be involved in this case.

             ....

              If a defendant is found guilty, the same jury that determined
      guilt is called upon to assess punishment. The punishment phase is
      conducted immediately following the return of a guilty verdict.
      Following the punishment range—punishment phase, the jury will be
      instructed by the Court as to the range of punishment which they will
      consider for this—in the case. In a case involving aggravated
      robbery, the jury would be instructed that they could set the
      punishment anywhere from 15 (verbatim) years up to 99 years or


                                          7
      life. In addition, they would be instructed that a fine of up to $10,000
      may be assessed. [Emphasis added.]

      The punishment range for aggravated robbery is five to ninety-nine years,

which was correctly stated by the prosecutor as set out below. See Tex. Penal

Code Ann. §§ 12.32, 29.03 (West 2011). When a first degree felony is enhanced

with a prior felony conviction, the punishment range increases to fifteen to ninety-

nine years. Id. § 12.42(c)(1) (West 2011 & Supp. 2011).

      [Prosecutor]: Okay. Now, the punishment range for the offense of
      aggravated robbery, it’s a first-degree felony under our law. . . .

             Aggravated robbery with a deadly weapon is a first-degree
      felony, and it’s up here on the board. There’s a punishment range.
      It’s not less than five years nor more than 99 years or life, and, in
      addition the jury can assess up to a $10,000 fine. Anywhere from
      zero up to 10,000. Okay?

            ....

      All right. Now, I want to talk about another range, because—the
      reason I’m doing this is because, all felony cases in Texas, you
      know, you have a punishment range for different offenses like what I
      put up on the board, but there’s also, depending on the case, if a
      person has prior convictions, prior felony convictions, the law
      increases the punishment. Okay? Figures, hey, second time
      around, you know, we’re going to make it a little harsher on you the
      second time you commit a felony.

              So the range for that, if it’s shown—again, the burden is on us.
      So if in any case, in this case a first-degree felony, agg robbery, if it’s
      shown that the defendant has a previous felony conviction before
      he, you know, came back and did the robbery, then the punishment
      range increases, and I think you can see from there what it basically
      does is it raises the minimum. Instead of being a minimum of five,
      it’s now a minimum of 15 because of the fact that he has the prior
      felony conviction. [Emphasis added.]

             Does everybody see how that works? And, again, the burden
      is on us to prove that.

                                          8
[Venireperson #26]: I just have a question. So does that mean that
you are notified that the Defendant has already had a previous
felon[y] before the trial starts—

[Prosecutor]: No.

[Venireperson #26]: —or at the process of the trial or at the
punishment phase or not at all?

[Prosecutor]: Here’s—well—

[Venireperson #26]: I mean, I don’t understand how that comes into
play or when it does or if it does.

[Prosecutor]: Okay. This comes into play—the punishment range
and the enhancement provisions come into play when you get to the
punishment phase of the trial. You found him guilty. Now you’ve
moved into the punishment phase, and you’re deciding punishment.
And like we talked about, one of the things that’s important is the
facts of the crime, but also the defendant’s background and
character. And if the background and character has taken the form
of a felony conviction, then the legislature said, “We’re raising the
minimum from five to 15.” So you see how that works? And that will
be something—that applies—that’s in any criminal case, whether it’s
a first-degree, second-degree felony, third-degree felony. There are
enhancement provisions for any type of offense pretty much, and the
legislature raises punishments for people who have been in trouble
before and they’ve been convicted before. Does that make sense to
everyone? Does anybody have questions about that?

[Venireperson #60]: Yeah. I just want to be clear that if there are
prior convictions, will that be made known to the jury during the
case, you’re not allowed to do that, or would you be made aware of
it only during the punishment phase?

[Prosecutor]: That’s a punishment issue.

[Venireperson #60]: So before then, we won’t be aware of it?

[Prosecutor]: Well, no, because like I said, in the guilt/innocence
phase, you know, we’re focused on the specific crime he’s accused
of.




                                 9
      [Venireperson #60]: Okay.       So you’re not allowed to use prior
      convictions to further—

      [Prosecutor]: Right.

      [Venireperson #60]: Okay.

      [Prosecutor]:   Now, with all of that said—yes, sir. [Venireperson
      #50]?

      [Venireperson #50]: So when the Judge read 15 to 99, that was a
      slip of the tongue whenever he said 15 to 99 years?

      [Prosecutor]: Well, that’s part of the range.

      [Venireperson #50]: Okay. I was just making sure that he didn’t—
      that that wasn’t specific to this case. That was just a—

      [Prosecutor]: No, we can’t go into specifics in this case.

      [Venireperson #50]: Okay.

      A review of the foregoing shows that no objection was made to the

magistrate judge’s statement.5 To preserve a complaint for our review, a party

must have presented to the trial court a timely request, objection, or motion that

states the specific grounds for the desired ruling if they are not apparent from the

context of the request, objection, or motion. Tex. R. App. P. 33.1(a)(1); Lovill v.

State, 319 S.W.3d 687, 691–92 (Tex. Crim. App. 2009). Further, the trial court

must have ruled on the request, objection, or motion, either expressly or

      5
       Cf. Jackson v. State, 285 S.W.3d 181, 183–84 (Tex. App.—Texarkana
2009, no pet.) (quoting Hart v. State, 173 S.W.3d 131, 142 (Tex. App.—
Texarkana 2005, no pet.), which states, “The Texas Court of Criminal Appeals
has stated repeatedly that both the [S]tate and the accused have the right to
inform the jury of the range of punishment applicable to an offense, including a
range that is enhanced, and to qualify the panel on the full range of
punishment.”) (emphasis added).


                                        10
implicitly, or the complaining party must have objected to the trial court’s refusal

to rule. Tex. R. App. P. 33.1(a)(2); Mendez v. State, 138 S.W.3d 334, 341 (Tex.

Crim. App. 2004). And, generally, even constitutional errors are forfeited by the

failure to object at trial.6 Curry v. State, 910 S.W.2d 490, 496 n.2 (Tex. Crim.

App. 1995). Because Robertson failed to preserve this complaint for our review,

we overrule his second point.

                                 IV. Conclusion

      Having overruled both of Robertson’s points, we affirm the trial court’s

judgment.


                                                   PER CURIAM

PANEL: MCCOY, J.; LIVINGSTON, C.J.; and MEIER, J.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: July 5, 2012




      6
        While rule 33.1 does not apply to rights that are waivable only or to
absolute systemic requirements, the violation of which may be raised for the first
time on appeal, the magistrate judge’s statement does not fall into either of the
waivable or systemic categories. See Mendez, 138 S.W.3d at 339–44; Saldano
v. State, 70 S.W.3d 873, 888–89 (Tex. Crim. App. 2002).


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