Opinion issued February 21, 2019




                                    In The

                             Court of Appeals
                                   For The

                         First District of Texas
                           ————————————
                             NO. 01-17-00760-CR
                          ———————————
                  CHRISTOPHER GONZALES, Appellant
                                      V.
                     THE STATE OF TEXAS, Appellee


                  On Appeal from the 147th District Court
                          Travis County, Texas*
                  Trial Court Case No. D-1-DC-16-301897


                        MEMORANDUM OPINION

      Following his jury trial and conviction for aggravated robbery, appellant

Christopher Gonzales challenges the sufficiency of the evidence to support his

*
      The Supreme Court of Texas transferred this appeal from the Court of
      Appeals for the Third District of Texas to this Court. See TEX. GOV’T CODE
      § 73.001. We are unaware of any conflict between precedent of that court
      and that of this court on any relevant issue. See TEX. R. APP. P. 41.3.
conviction. He also contends that the trial court’s decision to deny his challenge for

cause against a venire member was improper and that he is therefore entitled to a

new trial. Because Gonzales’s sufficiency claim is contradicted by the record and

because the trial court properly denied Gonzales’s challenge for cause, we affirm.

                                    Background

      Y.S. was cancelling a layaway order at a pawn shop when she noticed

appellant Christopher Gonzales standing very close to her. After receiving about

$500 for cancelling the order, she decided to strike up a conversation with

Gonzales. The two seemed to hit it off. Y.S. gave him her phone number as she

was leaving. The two made plans for Gonzales to come over to Y.S.’s house in the

evening. He arrived around 8:30 PM.

      The two talked for a while as they drank beer. Gonzales began smoking

something from a pipe that reminded Y.S. of methamphetamine. She thought about

asking him to leave, but she did not. Eventually, and after Gonzales made some

advances towards Y.S., the two became intimate in her bedroom.

      Afterwards, Gonzales’s phone started to ring. He told Y.S. that it was his

girlfriend, so Y.S. asked him to leave. But Gonzales said that he could not go home

smelling like a woman. The two ended up back in Y.S.’s bed. Gonzales moved

close to her, in a “spooning” position.




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      While in bed, Gonzales asked Y.S. why she went into his pants and looked

through his phone. She had no idea what he was talking about, but she could tell

that he was getting angry. He then grabbed her by the neck and started choking her.

Y.S. started to kick him in an attempt to escape but was unsuccessful. He told her

that if he had to lose everything, she “was going to lose everything, too.” Grasping

for air, she kicked one last time. The kick pushed her off the bed and freed her

from Gonzales’s grip. But Gonzales then grabbed her by the hair, pulled her arm

behind her back, forced her into the kitchen, and said, “I want everything in your

house that’s valuable.” After searching the kitchen, he threw her into a closet and

grabbed two watches on top of her dresser. He repeatedly asked her where she put

the money from the pawnshop, but she denied having it. He instructed her to sit on

the toilet so he could search the closet. After finding nothing, he forced her back

into the closet, got on top of her, and began strangling her again. She thought she

was going to die but, to her surprise, he let go. He told her to sit back down on the

toilet. He then locked her in the bathroom by tying the bathroom-door handle to

another door handle with the cord to her curling iron. Gonzales then left the

apartment, taking with him Y.S.’s purse, two wallets, two watches, roughly $140,

miscellaneous jewelry, sunglasses, car keys, cell phone, and garage-door opener.

Y.S. forced her way out of the bathroom and used an old cell phone to call the

police.


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      Eventually, police found and arrested Gonzales. The State charged him with

aggravated robbery, and the case was set for a jury trial. During voir dire, defense

counsel questioned the venire about bias. One of the venire members, Garlington,

stated that he could try to be fair but would be “certainly starting off biased.”

Guerrero, another venire member, expressed her agreement with Garlington. After

the venire members were given an explanation of the law and the presumption of

innocence, the trial court asked if any of the venire members “assumed that the

defendant was guilty.” Garlington answered yes, Guerrero answered no.

Garlington and a number of other venire members who agreed with him were

dismissed.

      After voir dire, defense counsel challenged Guerrero “on the issue of prior

bias based on a belief that [Gonzales] is already guilty of something.” The trial

court responded, “Well, when I asked the clarifying question about would it

influence their verdict,” she said it would not. Defense counsel then requested that

Guerrero be called for more questioning, and the trial court obliged. During her

subsequent questioning, Guerrero stated that despite her initial assumption that

Gonzales must have done something serious to get brought into court, she would

not let that assumption influence her verdict and would follow the trial court’s

instructions. Defense counsel renewed his challenge for cause, and the trial court

again denied it. Defense counsel used his last peremptory strike to remove


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Guerrero from the panel and then asked the trial court for an additional peremptory

strike, noting that, had it granted his challenge for cause against Guerrero, he

would not have had to use his last peremptory strike on her. The trial court denied

his request. The jury found Gonzales guilty after two days of trial and hearing from

witnesses who testified to the account described above. The trial court sentenced

him to twenty-five years’ confinement. Gonzales now appeals.

                                      Analysis

      Gonzales raises two issues. He contends that the evidence was insufficient to

support his conviction for aggravated robbery. He next maintains that the trial

court erroneously denied his challenge for cause of Guerrero and that he is

therefore entitled to a new trial. We overrule both issues.

I.    Sufficiency of the evidence

      Gonzales argues that the evidence was legally insufficient to prove

aggravated robbery. This court reviews the legal sufficiency of the evidence by

viewing all of the evidence in the light most favorable to the verdict and asking

whether any rational trier of fact could find the essential elements of the crime

beyond a reasonable doubt. Ross v. State, 543 S.W.3d 227, 234 (Tex. Crim. App.

2018). A person commits aggravated robbery by using or exhibiting a deadly

weapon while knowingly or intentionally causing, threatening, or placing another




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in fear of imminent bodily injury for the purpose of obtaining control of another’s

property. TEX. PENAL CODE §§ 29.01(1), 29.02, 29.03(a)(2).

         Gonzales contends that the evidence was insufficient to establish that his

thievery occurred during or immediately after his assault of Y.S. The contention is

contradicted by the record. During her testimony, Y.S. explained that moments

after she broke free from Gonzales’s grip around her throat, he grabbed her by the

hair, pulled her arm behind her back, forced her to the kitchen, and said, “I want

everything in your house that’s valuable . . . . Don’t play with me. I’ll kill you.”

Gonzales then brought Y.S. to her bathroom and instructed her to remain seated on

the toilet. After failing to find the money Y.S. received from the pawnshop,

Gonzales became enraged. He then grabbed Y.S., threw her into the closet, and

began strangling her again, stating “where’s that money at. . . . I ain’t playing with

you.” A rational factfinder could reasonably have found that Gonzales’s assault of

Y.S. occurred during and immediately after he robbed her. We overrule the first

issue.

II.      Denial of challenge for cause

         Gonzales next contends that the trial court improperly denied his challenge

for cause against venire member Guerrero. “If a trial judge errs in overruling a

challenge for cause against a venire member, then a defendant is harmed if he uses

a peremptory strike to remove the venire member and thereafter suffers a detriment


                                          6
from the loss of the strike.” Davis v. State, 329 S.W.3d 798, 807 (Tex. Crim. App.

2010). Gonzales was denied an additional peremptory strike after using his last

strike on Guerrero. Gonzales contends that Guerrero was biased as a matter of law.

To demonstrate harm, Gonzales must show that the trial court erred by denying his

challenge for cause against Guerrero. Id.

      There is a distinction between a true bias against one of the parties and an

opinion that can be aside. See Smith v. State, 907 S.W.2d 522, 530 (Tex. Crim.

App. 1995).2 “While a trial court may hold a juror qualified who states that he can

lay aside an opinion he has formed, no such discretion vests in the court with

reference to a juror with a bias or prejudice against the parties.” Id. (citing

Gonzales v. State, 331 S.W.2d 748 (1960)); see also Anderson v. State, 633 S.W.2d

851, 854 (Tex. Crim. App. 1982). Thus, when a venire member stated that she

could render an impartial verdict and set aside her assumption of guilt that was

based on pretrial publicity, the trial court’s decision to overrule the defendant’s

challenge for cause was proper. See Kemp v. State, 846 S.W.2d 289, 299 (Tex.


2
      There is also a distinction between bias against a party and bias against the law.
      See, e.g., Smith, 907 S.W.2d at 527 (discussing a venire member’s “expressed
      opposition to the death penalty”). When the bias is against the law, the sole
      question to answer is whether that bias would prevent or substantially impair the
      venire member’s ability to abide by her oath and follow the law. Id.; see also Riley
      v. State, 889 S.W.2d 290, 301 (Tex. Crim. App. 1993) (“[A]ny venireman who
      could answer the special issues according to the evidence, without conscious
      distortion or bias, could follow the law, irrespective of his willingness to ‘accept’
      the death penalty in the abstract.”). This case does not involve a bias against the
      law.
                                            7
Crim. App. 1992). But when a venire member who stated that he had past dealings

with the defendant that were negative and that he was prejudiced against the

defendant because of those past dealings, the trial court’s decision to overrule the

defendant’s challenge for cause was erroneous despite the venire member’s later

statement that he could set aside those past dealings and base his decision on the

evidence and the trial court’s charge. See Williams v. State, 565 S.W.2d 63, 65

(Tex. Crim. App. 1978).

      Guerrero’s agreement with Garlington that Gonzales was likely guilty was

based on Garlington’s statement that, given “the cumbersome process that our

justice system is today, I assume that he did it” because “it’s so rare that you get in

that chair if you didn’t.” That assumption was based on an opinion, not a bias

against Gonzales. Compare Smith, 846 S.W.2d at 299 (opinion of guilt based on

pretrial publicity), with Williams, 565 S.W.2d at 65 (bias against defendant based

on prior personal interactions), McBride v. State, 7 S.W.2d 1091, 1092–93 (1928)

(“prejudice against appellant” constrained the court “to hold that the learned trial

judge fell into error in overruling the challenges to the jurors”), Hooper v. State,

272 S.W. 493, 494–95 (1925) (stating that, during prohibition era, venire

member’s statement that he would require the accused to “prove his innocence”

because of his stated “prejudice against persons being in possession of whiskey




                                          8
save upon the prescription of a doctor” was bias against defendant). Accordingly,

we reject Gonzales’s argument that Guerrero was biased as a matter of law.

      In light of our conclusion that Guerrero’s agreement with Garlington was

based on an opinion, the question becomes whether she could put aside that

opinion and render an impartial verdict. See Penry v. State, 903 S.W.2d 715, 728

(Tex. Crim. App. 1995). The answer to this question lies within the sound

discretion of the trial court. See Kemp, 846 S.W.2d at 299. To establish that the

trial court abused its discretion by denying his challenge for cause, Gonzales must

show that the Guerrero “understood the requirements of the law and could not

overcome . . . [her] prejudice well enough to follow the law.” Gonzales v. State,

353 S.W.3d 826, 832 (Tex. Crim. App. 2011). Gonzales fails to carry that burden.

      After expressing her agreement with Garlington, the venire members were

provided an explanation of the law and the presumption of innocence. Following

this explanation, the venire members were asked whether any of them, before

hearing any of the evidence, believed that Gonzales was guilty. Garlington stated

that he still held that belief, and he was properly excused for cause. See, e.g.,

Kemp, 846 S.W.2d at 299. Guerrero, on the other hand, stated that she no longer

held that opinion. Further, during subsequent questioning of Guerrero, she stated

that she would place the burden entirely on the State to prove its case beyond a

reasonable doubt; that if she had a doubt, she would “absolutely” vote to acquit;


                                        9
that despite her initial opinion that Gonzales must have done something serious to

get brought into court, she would not let that opinion influence her verdict and

would follow the trial court’s instructions; and that she would not hold Gonzales’s

choice not to testify against him. In light of the entire record, the trial court

reasonably could have concluded that Guerrero could lay her opinion aside and

render an impartial verdict. Accordingly, the trial court did not abuse its discretion

by denying Gonzales’s challenge for cause. Gonzales’s second issue is overruled.

                                    Conclusion

      We affirm the judgment of the trial court.



                                                Richard Hightower
                                                Justice

Panel consists of Justices Lloyd, Kelly, and Hightower.

Do not publish. TEX. R. APP. P. 47.2(b).




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