                                                                    ACCEPTED
                                                                13-14-00422-cr
                                                 THIRTEENTH COURT OF APPEALS
                                                       CORPUS CHRISTI, TEXAS
                                                         3/27/2015 10:17:04 AM
                                                              DORIAN RAMIREZ
                                                                        CLERK

        NO. 13-14-00422-CR

   IN THE COURT OF APPEALS        FILED IN
                          13th COURT OF APPEALS
FOR THE THIRTEENTH DISTRICT
                       CORPUSOFCHRISTI/EDINBURG, TEXAS
            TEXAS         3/27/2015 10:17:04 AM
       AT CORPUS CHRISTI    DORIAN E. RAMIREZ
                                         Clerk

       DYLAN A. TRISTANI,
                    Appellant,
               v.

      THE STATE OF TEXAS,
                    Appellee.

         On Appeal from the
       County Court at Law #1
      Of Victoria County, Texas
         Cause No. 2-100216

 BRIEF FOR THE STATE OF TEXAS

       STEPHEN B. TYLER
      Criminal District Attorney
       Victoria County, Texas

     BRENDAN WYATT GUY
  Assistant Criminal District Attorney
        Victoria County, Texas
      205 N. Bridge St. Ste. 301,
     Victoria, Texas 77901-6576
            bguy@vctx.org
            (361) 575-0468
         (361) 570-1041 (fax)
        State Bar No. 24034895

    Attorneys for the State of Texas

ORAL ARGUMENT NOT REQUESTED
                                             TABLE OF CONTENTS

                                                                                                PAGE (S)

TABLE OF CONTENTS ......................................................................... ii

INDEX OF AUTHORITIES ...............................................................iii-iv

STATEMENT OF THE FACTS .......................................................... 1-5

SUMMARY OF ARGUMENT ............................................................. 5-8

ARGUMENT ........................................................................................ 8-24

           I. The trial court did not err in admitting the
              video evidence......................................................................... 8-17

         II. The trial court did not erroneously prohibit
             a proper voir dire question ................................................. 17-20

        III. In the alternative even if there was error from
             the denial of Appellant’s voir dire question
             about prior jury service that error was harmless
             and can therefore be disregard........................................... 20-24

PRAYER .................................................................................................. 24

SIGNATURE ........................................................................................... 24

CERTIFICATE OF COMPLIANCE ................................................... 25

CERTIFICATE OF SERVICE ............................................................. 26




Brief of Appellee                                     ii
Victoria County Criminal District Attorney
No. 13-14-00422-CR
                                             INDEX OF AUTHORITIES


                                      United States Supreme Court Cases

Dalton v. Texas, 130 S. Ct. 555 (2009) ..................................................... 9

Davis v. U.S.,114 S. Ct. 2350 (1994) .................................................... 8-12


                                                  Texas Cases

Blackman v. State, 414 S.W. 3d 757 (Tex. Crim. App. 2013) .............. 18

Bolden v. State, 634 S.W.2d 710 (Tex. Crim. App. 1982) .................... 18

Briggs v. State, 789 S.W. 2d 918 (Tex. Crim. App. 1990) .................... 13

Broxton v. State, 909 S.W. 2d 912 (Tex. Crim. App. 1995).................. 13

Buchanan v. State, 207 S.W. 3d 772 (Tex. Crim. App. 2006) .............. 13

Comeaux v. State, 445 S.W. 3d 745 (Tex. Crim. App. 2014) ............... 23

Dalton v. State, 248 S.W. 3d 866, 869
(Tex. App.-Austin 2008, pet. ref’d),
cert. denied 130 S. Ct. 555 (2009) ........................................................ 9-12

Dinkins v. State, 894 S.W. 2d 330 (Tex. Crim. App. 1995) ......... 8-10, 12

Dixon v. State, 2 S.W. 3d 263 (Tex. Crim. App. 1998) ......................... 16

Easley v. State, 424 S.W. 3d 535 (Tex. Crim. App. 2014) .................... 21

Hardie v. State, 807 S.W. 2d 319 (Tex. Crim. App. 1991)...................... 8

In re H.V., 252 S.W. 3d 319 (Tex. 2008) ................................................ 11



Brief of Appellee                                     iii
Victoria County Criminal District Attorney
No. 13-14-00422-CR
Martinez v. State, No. 07-11-00473-CR, 2012 WL 5342546
(Tex. App.-Amarillo 2012, pet. ref’d)
(mem. op. not designed for publication) ............................................... 11

Mbuga v. State, 312 S.W. 3d 657
(Tex. App.-Houston [1st Dist.] 2009, pet. ref’d) .................................... 11

Redd v. State, 578 S.W.2d 129(Tex. Crim. App. 1979) ......................... 18

Sells v. State, 121 S.W. 3d 748 (Tex. Crim. App. 2003) ....................... 17

Siverand v. State, 89 S.W. 3d 216
(Tex. App.-Corpus Christi 2002, no pet) .............................................. 23

State v. Herndon, 215 S.W. 3d 901 (Tex. Crim. App. 2007) ................ 20


                                             Texas Rules

TEX. R. APP. 9.4..................................................................................... 25

TEX. R. APP. 33.1............................................................................. 13, 16

TEX. R. APP. 44.2................................................................................... 22




Brief of Appellee                                  iv
Victoria County Criminal District Attorney
No. 13-14-00422-CR
                                                NO. 13-14-00422-CR

                                  IN THE COURT OF APPEALS
                             FOR THE THIRTEEN DISTRICT OF TEXAS
                                      AT CORPUS CHRISTI

DYLAN A. TRISTANI……..….…………………………………..Appelant

v.

THE STATE OF TEXAS,…..……………………………………...Appellee

                                                    * * * * *

                                     STATE’S BRIEF ON THE MERITS

                                                    * * * * *

TO THE HONORABLE COURT OF APPEALS:

            COMES NOW, THE STATE OF TEXAS, by and through her Criminal

District Attorney, Stephen B. Tyler, and as Appellee in the above numbered

and entitled cause, and files this the Appellee’s brief showing:

                                             STATEMENT OF THE FACTS

            Appellant’s case was called for trial on March 11, 2014. [RR-II-1].

Prior to the start of voir dire, Appellant indicated he would be going to the

Court for punishment should he be found guilty. [RR-II-6].

            During Appellant’s voir dire, he asked Venire Person #24 if they had

served on a jury before, if they were the foreman, was the case a felony or

misdemeanor, did the jury reach a verdict, and did the court or the jury do
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00422-CR
                                                        1
the punishment. [RR-II-69]. After these questions were answered, the trial

court requested the attorneys approach the bench. Id. The trial court then

cautioned the Appellant not to ask the question concerning whether the

judge or the jury accessed punishment since that question would indicate

what the verdict was in the prior case. [RR-II-70]. Appellant objected to

not being permitted to ask that question. Id. The trial court overruled the

objection and informed the Appellant he could ask the questions: 1) have

you been on the jury; 2) were you the foreman; and 3) was a verdict reached.

Id. Appellant did not propose any alternate questions. Id.

            Appellant then proceeded to question the remaining venire members

who had prior jury service along the questions permitted by the court. [RR-

II-69-74].              Six additional members of the venire panel, Venire Person

Maresh, Venire Person #9, Venire Person #12, Ms. Delilah Perez, Venire

Person Kaen, and Venire Person #22 all indicated prior jury service. Id.

Venire Person Maresh and Venire Person #9 stated that their juries did not

reach a verdict. [RR-II-71-72].

            After the completion of voir dire questioning, Appellant requested

additional peremptory challenges for each of the venire persons who

indicated prior jury service. [RR-II-80]. Appellant contended that without

being permitted to question those venire persons further about their prior
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00422-CR
                                              2
jury service, it would force him to assume that all of those jurors convicted

defendants and thus use up his peremptories on them rather than on other

venire persons.                     [RR-II-81].   Appellant then requested seven additional

peremptory challenges. Id. The trial court denied this request. [RR-II-82].

Appellant then requested to be granted additional peremptory challenges

only for the venire members who indicated prior jury service where they

reached a verdict on the case, and noted that one of the Venire members

actually had answered Appellant’s question about if the jury had reached a

verdict, and thus lowered his request to four additional peremptory

challenges. Id. The trial court also denied this request. Id. Appellant did

not request challenges for cause for any of the jurors who indicated prior

jury service on the grounds of their prior jury service. [RR-II-83-113].

            Appellant sought a challenge for cause for Venire Person #10 on the

grounds that they were biased in favor of police officers. [RR-II-103]. The

trial court denied this request.                    Id.    Appellant had Venire Person #13

questioned for possible bias but did not request a challenge for cause against

her. [RR-II-104-106]. Appellant did not seek any sort of challenge for

cause against Venire Person #18. [RR-II-83-113].

            After challenges for cause were made, Appellant indicated there were

still three venire members with prior jury service within the strike zone and
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00422-CR
                                                       3
indicated he would have struck Venire Person #10, Venire Person #13, and

Venire Person #18 if the court had granted him the additional peremptories

he had requested. [RR-II-114]. Appellant then repeated his request for

additional peremptories. Id. The trial court again denied this request. Id.

Appellant asserted he used all his peremptory challenges on members with

prior criminal jury service that were within the strike range but did not

specifically identify those people. [RR-II-114].

            The State’s first witness was Sergeant Jeff Strauss of the Victoria

Police Department. [RR-II-127]. Sergeant Strauss testified to being called

out on July 22, 2012 to investigate a suspect who was passed out in his

vehicle in the drive through lane of McDonalds. [RR-II-128-129]. Sergeant

Strauss then identified the Appellant as being the driver of that vehicle.

[RR-II-129]. Sergeant Strauss was then used to sponsor the video taken

from his patrol car from that night, State’s Exhibit 1. [RR-II-131-132].

            The trial court then conducted a bench conference to allow Appellant

concerning the admissibility of this evidence. [RR-II-132-158]. Appellant

objected to State’s Exhibit 1 on the grounds that it contained an invocation

from the Appellant of his right to counsel. [RR-II-132]. Appellant also

noted a portion of the video showing Sergeant Strauss discussing with

another officer that Sergeant Strauss believed that the Appellant had invoked
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00422-CR
                                             4
his rights. [RR-II-151]. Appellant did not specify whether he was actually

objecting to this later segment or was just using it as evidence to support him

re-urging his previous objection concerning the earlier portions of the video

where Sergeant Strauss had asked Appellant if he wanted an attorney. [RR-

II-151-152]. The trial court overruled Appellant’s objection. Id. At no

point during this conference or at any other time during the trial did

Appellant object to any portion of the video on the grounds that it made an

inference that Appellant had invoked his right to counsel. [RR-II].

            State’s Exhibit 1 shows that the Appellant asked “can I get a lawyer?”

in a tone that was questioning. [State’s Exhibit 1 at 26:06]. Appellant then

stated, “I guess I’d like a lawyer.” [State’s Exhibit 1 at 28:57]. The officer

then asking a clarifying question about whether Appellant wanted a lawyer

to which Appellant answered, “I guess so.” [State’s Exhibit 1 at 29:03].

            Redacted versions of the video were eventually entered into evidence

as State’s Exhibit 6 and 7. [RR-III-106, 109; State’s Exhibits 6-7].

            Appellant was found guilty of the charged offense. [RR-IV-115].

                                     SUMMARY OF THE ARGUMENT

            The trial court did not commit any error in admitting the objected to

portions of the videos because Appellant did not definitively invoke his right

to counsel. Rather Appellant’s statements were all ambiguous, suggesting at
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00422-CR
                                                5
most that he might want a lawyer, and that is not enough to constitute an

effective invocation of the right to counsel. Nor does the investigating

officer’s subjective belief on whether Appellant invoked or not matter

because the standard for determining whether an effective invocation

occurred is an objective standard, and by that standard Appellant did not

actually invoke his right to counsel.

            Nor may Appellant now argue that even if the invocation was

ambiguous the video segment still should have been suppressed because it

implied he had invoked his right to counsel. Appellant did not make that

specific argument at trial and thus has procedurally defaulted on that claim

and is not permitted to make it for the first time on appeal.

            Likewise Appellant cannot now object to the portions of the video

where Sergeant Strauss discussed with other officers whether Appellant had

invoked or not because Appellant failed to make a specific objection at trial

and indeed appears to have not actually made any objection concerning that

portion of the video. Furthermore, even if Appellant is deemed to have

made a specific objection there it would just be the same objection he made

earlier concerning his claim that he invoked his right to counsel, and thus

that objection too would fail due to it being an ineffective invocation of the



Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00422-CR
                                             6
right to counsel based on it being ambiguous as to whether Appellant was

invoking.

            The trial court also did not commit any error by prohibiting Appellant

from questioning venire members about who accessed punishment during

their prior instances of jury service. Such a question is effectively asking

what the verdict of those previous trials was, and trial courts have the

discretion to disallow questions on that topic. Additionally, there is nothing

in the record to support Appellant’s claim that the trial court refused to allow

this questioning for an improper reason, but even if the trial court’s ruling

had been based on an improper basis, the ruling would still have to be

upheld so long as it can be justified by a valid legal basis. Here there were

clear, valid legal bases for not allowing such a question and therefore the

trial court’s ruling must stand.

             Nor can Appellate show he suffered any harm from not being allowed

to ask such a question. Appellant’s sole justification in his brief for the

disputed question is that being denied the chance to ask this question denied

him the chance to learn about the venire member’s prior experience

accessing punishment. Such a ground was immaterial to this case since the

jury was not going to be accessing punishment. Likewise Appellant also did



Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00422-CR
                                             7
not suffer any erroneous denial of a challenge for cause.        Therefore even if

there was error in denying the question, the error was harmless.

                                             ARGUMENT

    I. The trial court did not err in admitting the video evidence.

            The audio portion of a video should be suppressed to the extent that it

shows a suspect invoking his constitutional rights. Hardie v. State, 807

S.W. 2d 319,322 (Tex. Crim. App. 1991). However, this protection only

exists if a defendant actually invokes his right to counsel. Davis v. U.S.,114

S. Ct. 2350, 2355 (1994); Dinkins v. State, 894 S.W. 2d 330, 351 (Tex.

Crim. App. 1995). If the suspect makes a reference to an attorney that is

“ambiguous or equivocal in that a reasonable officer in light of the

circumstances would have understood only that the suspect might be

invoking the right to counsel” then there is no invocation of the right to

counsel and the officer does not have to cease questioning. Davis, 114 S. Ct.

at 2355; Dinkins, 894 S.W. 2d at 351-352.               Rather the suspect must

unambiguously request counsel. Davis, 114 S. Ct. at 2355. The inquiry into

whether a subject has actually invoked his right to counsel is purely an

objective one. Davis, 114 S. Ct. at 2355; Dinkins, 894 S.W. 2d at 351.

                 In the present case there was no unambiguous invocation of the

right to counsel. Rather Appellant gave a tentative response when asked if
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00422-CR
                                                8
he wanted an attorney, stating only that “I guess I’d like a lawyer” [State’s

Exhibit 7 at 10:02] and “Yeah, I guess so” when again asked if he wanted a

lawyer.              [State’s Exhibit 7 at 10:08].   These are not the definite,

unambiguous invocations of the right to counsel that are required for

officer’s to have to cease questioning.

                 The United States Supreme Court has already found that a

defendant saying, “maybe I should talk to a lawyer” is not a clear invocation

of the right to counsel. Davis, 114 S. Ct. at 2357. Likewise the Texas Court

of Criminal Appeals determined that a defendant saying, “maybe I should

talk to someone” is also not a clear invocation of the right to counsel.

Dinkins, 894 S.W. 2d at 352. Moreover, the Austin Court of Appeals found

a defendant telling an investigating officer, “I guess I should get a lawyer

before I really get into what happened” and when further questioned about

whether he wanted a lawyer, responding with: “I should get one, probably. I

guess so. I mean, I guess, I should do it. I suppose I should get a lawyer.

Oh yeah, I want one”, did not constitute a clear invocation of the right to

counsel. Dalton v. State, 248 S.W. 3d 866, 869, 873 (Tex. App.-Austin

2008, pet. ref’d), cert. denied 130 S. Ct. 555 (2009). The parallels between

Dalton and the present case are obvious. Both involve suspects stating that

they guess they want a lawyer. Guessing was deemed too equivocal in
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00422-CR
                                             9
Dalton to constitute an effective invocation of the right to counsel; it should

likewise be deemed too equivocal in this case to constitute an effective

invocation.

                 A suspect must express a definite desire to speak to an attorney to

constitute an actual invocation of the right to counsel. See Dinkins, 894

S.W. 2d at 352 (emphasis added). A statement that involves the word

“guess” is far from definite. A person who asked their significant other,

“will you be faithful to me when I am away”, would hardly feel confident

with an answer of, “I guess so.” Likewise an attorney, questioning a voir

dire panel on if they would follow Texas law on some key component of the

case would be acting in a professionally negligent manner if they did not

attempt to clarify a venire person who answered such a question with, “I

guess I could.” Any statement with the word “guess” in it is at best a

tentative statement. Such a statement in the context of whether or not a

person wants a lawyer at best suggests that the suspect might want a lawyer,

but it clearly does not definitively establish that they do want a lawyer, and

as already discussed, putting an officer on notice that you might want a

lawyer is insufficient to constitute an actual invocation of the right to

counsel. See Davis, 114 S. Ct. at 2355; Dinkins, 894 S.W. 2d at 351-352.

The invocation must be definite. It simply was not here.
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00422-CR
                                             10
            Likewise the question, “Can I get a lawyer?” is also not a clear

invocation of the right to counsel. Numerous Texas courts have considered

similar statements and found them to not be clear invocations of the right to

counsel. See In re H.V., 252 S.W. 3d 319, 325 (Tex. 2008)(establishing that

the question, “I can’t afford a lawyer but is there any way I can get one?”

was not an invocation of the right to counsel); Mbuga v. State, 312 S.W. 3d

657, 665 (Tex. App.-Houston [1st Dist.] 2009, pet. ref’d)(holding the

statement “Can I wait until my lawyer gets here” was not a clear and

unambiguous invocation of the right to counsel); Martinez v. State, No. 07-

11-00473-CR, 2012 WL 5342546 at 4 (Tex. App.-Amarillo 2012, pet.

ref’d)(mem. op. not designed for publication)(holding the statement, “Can I

get a lawyer in here?” was not a clear, unambiguous request for an attorney.)

At no point did Appellant ever make a clear, unambiguous invocation of his

right to counsel, and therefore he was not entitled to the constitutional

protections of an actual invocation.

            Nor does it matter whether Sergeant Strauss believed the suspect was

invoking his right to an attorney or not. The test for whether a suspect has

invoked his right to counsel is not a subjective standard based on what the

investigating officer believed. It is an objective standard based on what a

reasonable officer in those circumstances would have believed. See Davis,
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00422-CR
                                             11
114 S. Ct. at 2355; Dinkins, 894 S.W. 2d at 351. Indeed the Dalton case,

which continues to closely mirror the facts of the present case, actually

involved one of the investigating officers, an Officer Basulto, reporting to

the other officers that the defendant had invoked his rights. See Dalton, 248

S.W. 3d at 873. The Austin Court of Appeals found that immaterial as the

mere fact that Officer Basulto himself believed that the Appellant had

invoked his rights, did not “convert the statement at issue into the type of

unequivocal statement required.”             Dalton, 248 S.W. 3d at 873.   In the

present case, the statements made to Sergeant Strauss were objectively

ambiguous on whether or not Appellant wanted an attorney. Therefore it

does not matter what Sergeant Strauss actually believed concerning those

statements. The statements made to him did not constitute an objective,

actual invocation of the right to counsel, and since there was no

unambiguous invocation of the right to counsel, there was no error in the

admission of the video evidence.

             Nor is there any basis for Appellant’s new argument that even in the

face of an ambiguous assertion, it is still error for the trial court to have

admitted the objected to portions of video since those segments might create

the impression that Appellant had invoked his right to counsel.

             Appellant did not make this argument at trial, and thus Appellant is
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00422-CR
                                             12
now foreclosed from arguing this specific point on appeal. A trial objection

generally must be specific in order to preserve a complaint for review on

appeal. See TEX. R. APP. P. 33.1(a)(1)(A); Buchanan v. State, 207 S.W. 3d

772, 775 (Tex. Crim. App. 2006). A general or imprecise objection may be

sufficient to preserve error but only if the legal basis for the error is obvious

to the court and the opposing counsel; when the legal basis of the objection

is not obvious, failure to make a specific objection at trial forfeits that issue

for appeal. Buchanan, 207 S.W. 3d at 775.

              The rationale for this rule is obvious.             A trial court cannot

intelligently rule on objections if it does not know what those objections are.

Thus it is the responsibility of the parties to state with specificity what they

find objectionable about offered evidence. Furthermore, an objection stating

one legal theory cannot be used to support a different legal theory on appeal.

See Broxton v. State, 909 S.W. 2d 912, 918 (Tex. Crim. App. 1995). And

even constitutional errors may be waived by failure to properly object at

trial. See Briggs v. State, 789 S.W. 2d 918, 924 (Tex. Crim. App. 1990).

              Appellant made numerous objections concerning the admission of

portions of the video evidence in this case. [RR-II-132-135, 139, 144-145,

151, III-103].                   However, not once in all those many challenges to the

admissibility of the video evidence did Appellant ever object to the material
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00422-CR
                                                   13
on the grounds that, even if Appellant’s statements were not a clear

invocation of the right to counsel and instead constituted an ambiguous

invocation, those statements still should not be admitted into evidence

because they would create an inference that Appellant had invoked his right

to counsel.                   [RR-II-132-135, 139, 144-145, 151, III-103].          Rather,

Appellant’s attorney objected solely on the grounds that his client actually

had invoked his right to counsel. Id. Appellant’s attorney was insistent that

the Appellant made “a very firm invocation” that was “not at all ambiguous,

not at all unclear” [RR-II-135], and argued that the invocation was

“complete and clear.” [RR-II-150]. Furthermore, when asked to summarize

his objection to the objected to portion of the video Appellant characterized

it as, “My objection, the same objection, that this man invoked his right to

counsel”. [RR-II-151].                       Appellant stayed remarkably consistent on that

single basis for his objection to this evidence and never proposed any

alternate theory on why the portions of the video relating to whether

Appellant wanted an attorney should be barred.

              Appellant is now attempting to argue a different legal theory for why

the objected to portions of the video evidence were inadmissible then what

he argued at trial. This is improper. Perhaps if Appellant had raised this

alternate theory at trial, the trial court would have ruled differently and kept
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00422-CR
                                                      14
the objected to portions of the video out, but the Appellant did not do so.

The Appellant did not give the trial court the opportunity to rule upon this

alternate basis for challenging the objected to evidence and therefore should

no more be allowed to raise this new theory on appeal then he would be

allowed to raise an objection that the material was unfairly prejudicial or

irrelevant for the first time on appeal. Appellant procedurally defaulted on

this particular theory by failing to make a specific objection at trial on these

grounds and therefore is barred from raising this theory for the first time on

appeal.

              A similar issue exists as to Appellant’s complaint about the portion

of the video where Sergeant Strauss informs another officer that he believes

the Appellant invoked his right to counsel. It is unclear if Appellant even

actually objected to this segment of the video. Appellant stated his intention

to object to the video, [RR-II-151-152], but when asked to clarify the nature

of his objection, stated that he was re-urging his earlier objection [RR-II-

152]. That would seem to mean that the Appellant was not making an

independent objection to this specific portion of the video but rather was

simply reurging his previous objection about the earlier portions of the video

and was using this portion simply to support his argument that the earlier

portions of the video he objected to constituted an actual invocation of the
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00422-CR
                                             15
right to counsel. If that is correct then Appellant made no actual objection to

this segment of the video, and therefore failed to make the kind of timely

objection required to preserve error under Texas Rule of Appellate

Procedure 33.1(a)(1). See also Dixon v. State, 2 S.W. 3d 263, 265 (Tex.

Crim. App. 1998)(holding that objections must be timely.) Thus he now

would be barred from objecting to the admissibility of this portion of the

video since he did not object to it at trial.

             But even if Appellant is deemed to have actually objected to the

portion of the video concerning Sergeant Strauss’s conversation with the

other officer, Appellant’s objection to that portion of the video was still

defective due to a lack of specificity. Appellant never explained why he

found this portion of the video objectionable. [RR-II-152]. Therefore even

if Appellant is deemed to have made an objection to that portion of the

video, the objection failed to preserve any claim for appellate review on this

point due to lack of the required specificity.

            Now it is possible that this Honorable Court will conclude that even

though Appellant did not articulate a specific objection to this portion of the

video, it can be inferred that he is making the same objection to this portion

of the video that he made to the earlier portions. Such a determination

would save Appellant from having procedurally defaulted on his objection to
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00422-CR
                                             16
this portion of the video, but it still would not establish a basis for relief. If

Appellant’s only valid, properly preserved objection to this portion of the

video is the same objection he made earlier (insisting that he did invoke his

right to counsel), then this objection fails for the same reason (the invocation

was objectively ambiguous and thus did not constitute an actual invocation

of the right to counsel.)

            Therefore since Appellant did not unambiguously invoke his right to

counsel and did not preserve at trial any other appellate issues that relate to

the admission of the video evidence, Appellant has no basis to challenge the

admission of the video evidence. Accordingly, his first ground of error

should be denied.

       II. The trial court did not erroneously prohibit a proper voir dire
           question.

             Nor did the trial court commit any error in prohibiting Appellant from

asking members of the venire panel about whether it had been the judge or

the jury that accessed punishment in the prior cases where they served on a

jury. [RR-II-68-69]. A trial court has broad discretion over jury selection,

including the right to impose reasonable limits on the voir dire examination.

Sells v. State, 121 S.W. 3d 748, 755 (Tex. Crim. App. 2003). This discretion

includes the authority to prohibit questions concerning the specifics of their

Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00422-CR
                                             17
verdicts in previous trials. See Bolden v. State, 634 S.W.2d 710, 712 (Tex.

Crim. App. 1982); Redd v. State, 578 S.W.2d 129, 130-31 (Tex. Crim. App.

1979).

            A question concerning whether the judge or jury accessed punishment

in a venire person’s previous jury experience serves no purpose other than to

attempt to determine what the verdict was of that case. Indeed Appellant at

trial essentially conceded in response to the trial judge’s question that his

entire purpose in asking that question was because the answer would imply

what the verdicts were from the venire person’s prior jury service. [RR-II-

71]. Therefore Appellant’s question was exactly the kind of question about

the specifics of prior jury service that the trial court has the discretion to

disallow.

           Appellant’s reliance on the Blackman case is likewise misplaced.

Blackman does not stand for the proposition that trial courts are required to

allow questioning about the specifics of prior jury service. It merely states

that a trial court can allow such questioning if it chose to do so. It puts no

obligation on the trial court to do so and in fact specifically reasserts that a

trial court can exercise its discretion to disallow those kind of questions.

Blackman v. State, 414 S.W. 3d 757, 761 n.7 (Tex. Crim. App. 2013).

           In the present case it was therefore obviously well within the trial
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00422-CR
                                             18
court’s discretion to disallow Appellant’s proposed question. Appellant’s

question was not one that would plausibly lead to any sort of challenge for

cause. It was likewise of little value in letting a party intelligently exercise

its peremptory challenges since knowing the verdict of a previous case tells

you nothing of use if you do not also know the specific facts and

circumstances of that case.                  (It would take considerable follow up

questioning about those specific facts and circumstances to actually devise

anything of value from knowing the specifics of a juror’s prior jury verdict.)

Furthermore, Appellant clearly had no need to know if the venire members

had prior experience in accessing punishment, since the jury would not be

accessing punishment in the present case. (Appellant had prior to the start of

voir dire elected to go to the judge for punishment rather than the jury.)

[RR-II-6].                As such Appellant’s question was both irrelevant and an

unnecessary waste of court time and therefore the trial court acted well

within its discretion to place reasonable limits on voir dire by not permitting

the Appellant to ask a pointless question.

           Appellant also now contends the trial court made its ruling on an

incorrect belief in the law. This contention is not supported by the record as

the record is silent as to why the trial court did not allow these questions to

be asked. (The record shows only that the trial court informed the Appellant
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00422-CR
                                                19
he could not ask the question [RR-II-69-70] and did not specify why it found

the question objectionable, other than noting that the question was seeking

answers which implied what the verdict was in the prior trials. [RR-II-71].)

Since the record is silent as to the reason for why the trial court felt the

question was improper, there is no basis for concluding the trial court

disallowed the question for an erroneous reason.

           At any rate there is no need for us to speculate on what the trial court’s

reasoning was because even if the trial court had ruled Appellant’s question

improper on an incorrect basis, that ruling would still have to be upheld so

long as it was correct on some other applicable legal theory. See State v.

Herndon, 215 S.W. 3d 901, 905 n.4 (Tex. Crim. App. 2007).                       Here

Appellant’s question could fairly be disallowed both in the interest of setting

reasonable time limits and, given that the Appellant was not going to the

jury for punishment anyway, for simply being irrelevant to any issue of

importance in the trial. Therefore, even if the trial court’s ruling was for the

wrong reason, the ruling is still valid on other valid legal grounds and as

such the trial court’s ruling must be upheld.

III. In the alternative even if there was error from the denial of
     Appellant’s voir dire question about prior jury service that error
     was harmless and can therefore be disregard.

         In the alternative, even if the trial court did commit error in refusing to
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00422-CR
                                             20
permit Appellant to question venire members about the specifics of their

prior jury service, that error was harmless beyond a reasonable doubt and

can therefore be disregarded.

           As a threshold matter, Appellant is clearly not entitled to have this

issue considered under a constitutional error analysis. Being denied one

question hardly rises to the level of being a limitation on voir dire “so

substantial” as to rise to the level of constitutional error. See Easley v. State,

424 S.W. 3d 535, 541 (Tex. Crim. App. 2014). Appellant was permitted a

substantial voir dire which included extensive questioning of every venire

member who indicated prior jury service. [RR-II-47-80]. Therefore there

was no substantial limitation on Appellant’s voir dire and as such there is no

legal justification to apply a constitutional error analysis to this issue.

             But even if a constitutional error framework was employed, Appellant

still has no basis for relief on this claim. Appellant’s sole argument in his

brief for why he was harmed by not being allowed to pursue this line of

inquiry in voir dire is that it “wholly prevented” Appellant from

“ascertaining whether the panel members had prior experience assessing

punishment.” [Appellant’s Brief at 24]. What Appellant fails to explain

though is why there was any need to ascertain whether the panel members

had prior experience assessing punishment.
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00422-CR
                                             21
            Appellant had already elected, prior to the start of voir dire, to go to

the judge for punishment rather than the jury. [RR-II-6]. Therefore, since

the venire members were not going to be called upon to assess punishment

in this case, their prior experience assessing punishment was wholly

irrelevant. Appellant cannot possibly have suffered any harm from not

being able to question venire members about a task that those members were

not going to be called upon to perform, and therefore it is clear beyond a

reasonable doubt that Appellant did not suffer any harm from not being

permitted to question the venire members on this point. Maybe in a trial

where Appellant was going to the jury for punishment his question would

have had some genuine merit, but in a trial where punishment was to be

assessed by the judge, the venire member’s prior experience accessing

punishment simply did not matter.

              As such Appellant is not entitled to relief even under the generous

constitutional error framework much less under the much less strict non-

constitutional error framework of Texas Rule of Appellate Procedure

44.2(b). It is clear beyond a reasonable doubt that Appellant did not suffer

any harm from not being allowed to ask one rather meaningless question,

and Appellant certainly did not have any substantial rights affected by not

being permitted to ask that question as it is simply not plausible that the
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00422-CR
                                             22
verdict of a trial would be different based on Appellant being able to ask the

venire panel a question about a function (assessing punishment) that the jury

was not even going to perform.

              Nor is Appellant’s contention that he suffered harm from not being

able to use peremptory challenges on Venire members 10 and 13 persuasive.

The case Appellant cites in support of this claim relates to a defendant being

harmed by the loss of a peremptory strike due to the erroneous denial of a

challenge for cause. See Comeaux v. State, 445 S.W. 3d 745, 749-751 (Tex.

Crim. App. 2014). That did not happen in this case. Appellant did not even

request a challenge for cause on Venire member 13. [RR-II-104-106]. And

while Appellant did attempt to challenge for cause Venire member 10 at trial

[RR-II-103], Appellant has not re-litigated that issue in his appeal and thus

has implicitly conceded that the trial court was correct in denying his

challenge for cause. See Siverand v. State, 89 S.W. 3d 216, 220 (Tex. App.-

Corpus Christi 2002, no pet) (standing for the proposition that when a party

does not file a brief it is conceding the issue. The same logic would seem to

suggest that when a party does not raise an appellate issue, it is effectively

conceding the trial court ruling was correct on that point.) As such given

that there was no erroneous denial of a challenge for cause in this case,

Appellant has no grounds to argue he suffered harm due to Venire members
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00422-CR
                                             23
10 and 13 serving on the jury.

              Therefore even if there was error from the denial of Appellant’s

question the error was harmless by both the constitutional and non-

constitutional standards of review, and as such the error can be discarded.

                                              PRAYER

            WHEREFORE, PREMISES CONSIDERED, the State prays that this

Honorable Court affirm the judgment of the trial court.

.

                                             Respectfully submitted,


                                             STEPHEN B. TYLER
                                             CRIMINAL DISTRICT ATTORNEY

                                             /s/ Brendan W. Guy
                                             Brendan W. Guy
                                             Assistant Criminal District Attorney
                                             SBN 24034895
                                             205 North Bridge Street, Suite 301
                                             Victoria, Texas 77902
                                             E-mail: bguy@vctx.org
                                             Telephone: (361) 575-0468
                                             Facsimile: (361) 576-4139


                                             ATTORNEYS FOR THE APPELLEE,
                                             THE STATE OF TEXAS




Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00422-CR
                                                  24
                                     CERTIFICATE OF COMPLIANCE

            In compliance with Texas Rule of Appellate Procedure 9.4(i)(3), I,

Brendan Wyatt Guy, Assistant Criminal District Attorney, Victoria County,

Texas, certify that the number of words in Appellee’s Brief submitted on

March 27, 2015, excluding those matters listed in Rule 9.4(i)(1) is 5,352.



                                             /s/ Brendan W. Guy
                                             Brendan W. Guy
                                             Assistant Criminal District Attorney
                                             SBN 24034895
                                             205 North Bridge Street, Suite 301
                                             Victoria, Texas 77902
                                             E-mail: bguy@vctx.org
                                             Telephone: (361) 575-0468
                                             Facsimile: (361) 576-4139




Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00422-CR
                                                  25
                                             CERTIFICATE OF SERVICE

            I, Brendan Wyatt Guy, Assistant Criminal District Attorney, Victoria

County, Texas, certify that a copy of the foregoing brief has been served on

Norman Silverman, Attorney for the Appellant, by depositing same in the

United States Mail, postage prepaid on the day of March 27, 2015.



                                                   /s/ Brendan W. Guy
                                                   Brendan W. Guy
                                                   Assistant Criminal District Attorney
                                                   SBN 24034895
                                                   205 North Bridge Street, Suite 301
                                                   Victoria, Texas 77902
                                                   E-mail: bguy@vctx.org
                                                   Telephone: (361) 575-0468
                                                   Facsimile: (361) 576-4139




Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00422-CR
                                                        26
