                        NUMBER 13-13-00175-CR

                           COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI - EDINBURG

EVERETT LOUIS KELLEY
A/K/A EVERETT SAM KELLEY,                                               Appellant,

                                         v.

THE STATE OF TEXAS,                                                     Appellee.


                   On appeal from the 24th District Court
                        of Jackson County, Texas.


                        MEMORANDUM OPINION
              Before Justices Rodriguez, Garza, and Perkes
                Memorandum Opinion by Justice Perkes
      Appellant Everett Louis Kelley, a/k/a Everett Sam Kelley, was convicted of the

offense of theft (greater than or equal to twenty thousand dollars, but less than one

hundred thousand dollars), a third-degree felony.     See TEX. PENAL CODE ANN. §

31.03(e)(5) (West, Westlaw through 2013 3d C.S.). After a jury found appellant guilty,

the trial court assessed punishment at life imprisonment in the Texas Department of
Criminal Justice, Institutional Division.1 By one issue, appellant argues the trial court

improperly limited the defense’s voir dire by disallowing one of defense counsel’s voir dire

questions. We affirm.

                                        I.      BACKGROUND

        During voir dire, defense counsel told the venire panel there are two types of

potential jurors: (1) jurors who do not have a problem with the presumption of innocence,

and (2) jurors who have a problem with the presumption of innocence and who, upon

seeing a person accused of a crime, are unable to presume him innocent. The following

voir dire excerpt occurred directly after defense counsel laid out this distinction:

        [Defense]:      Is there anybody who would put themselves in the latter
                        category that have a problem with the presumption of
                        innocence . . . [a]nybody in row one?

        Venire:         No.

        [Defense]:      In row two? In row three? In row four? Mr. Smith?

        [Mr. Smith]: Yeah.

        [Defense]:      What are your feelings on the presumption of innocence? I
                        don’t mean to pick on you.

        The State objected, arguing that the question of how the individual venire member

felt about the presumption of innocence was an improper commitment question. At a

discussion at the bench, defense counsel explained that he wanted to ask the individual

jurors how they felt about the presumption of innocence to discern whether they could

apply it. The trial court sustained the State’s objection, explaining to defense counsel




        1Appellant pleaded true to eight prior felony convictions, which enhanced his punishment to life
imprisonment. See TEX. PENAL CODE ANN. § 12.42(d) (West, Westlaw through 2013 3d C.S.).
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that the court would not allow him to ask the individual jurors how they personally felt

about presumption of innocence.         The trial court, however, thereafter told defense

counsel that he could ask the jurors, even individually, if they could apply the presumption

of innocence.

       Defense counsel subsequently asked venire person Smith, “Can you follow that

law [the presumption of innocence]?” When Smith affirmed he could, defense counsel

probed, “Is there anything about that law that you couldn’t follow?” Smith answered,

“No.” Defense counsel turned his attention to the entire panel, asking, “Anybody else

with the same question?”       No verbal response appears in the record, and defense

counsel continued,

       [T]he bottom line is if you can’t, then it’s not fair to anybody that if you can’t
       do that. And that’s why, you know, that’s why we went over that people
       have strong feelings about that because I know, because I know I do. I
       have family members that do. You know, it’s hard when you read the paper
       or when you hear gossip at the coffee shop or when you hear people talk
       about different things not to have a preconceived notion of what in one
       particular case or the other with the presumption of innocence. And that’s
       okay. That means you’re human.

       And that’s all we’re trying to do is elicit that, trying to figure out if there’s
       anybody here and it’s not a bad thing.

                                 II.    SCOPE OF VOIR DIRE

       By his sole issue on appeal, appellant asserts that the trial court abused its

discretion by limiting voir dire and that he was thereby deprived of the ability to intelligently

select jurors and exercise his preemptory strikes.

A.     Standard of Review and Applicable Law

       We review a trial court’s decision as to the propriety of a particular voir dire

question under an abuse of discretion standard. Barajas v. State, 93 S.W.3d 36, 38
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(Tex. Crim. App. 2002) (en banc) (citing Allridge v. State, 762 S.W.2d 146, 167 (Tex.

Crim. App. 1988)); Faulder v. State, 745 S.W.2d 327, 334 (Tex. Crim. App. 1987). We

uphold the trial court’s ruling so long as it was within the zone of reasonable disagreement

and correct under any theory of law applicable to the case. Winegarner v. State, 235

S.W.3d 787, 790 (Tex. Crim. App. 2007) (citations omitted).

       Upon finding error, we only reverse if the error affected a substantial right of the

defendant. TEX. R. APP. P. 44.2(b); see, e.g., Woods v. State, 152 S.W.3d 105, 109 (Tex.

Crim. App. 2004) (en banc); Rachel v. State, 917 S.W.2d 799, 815 (Tex. Crim. App. 1996)

(en banc). The Texas Court of Criminal Appeals has held that there is no harm where

the record reflects that counsel was able to ask venire members a question that was

“essentially the same” as a denied question or elicited the same information that the

denied question sought to elicit. See Woods, 152 S.W.3d at 110; Rachel, 917 S.W.2d

at 815.

                                     III.   DISCUSSION

       Assuming, without deciding, the question was proper and the trial court erred by

denying appellant the right to ask it, we conclude any error was harmless. See TEX. R.

APP. P. 44.2(b); Woods, 152 S.W.3d at 109–10; Rachel, 917 S.W.2d at 815. Even

though defense counsel was not allowed to ask venire members how they “felt” about the

presumption of innocence, he was nevertheless allowed to ask whether they could apply

the law, which, according to defense counsel, was the purpose underlying the disallowed

question. It is unclear from the record whether defense counsel pursued his question to

a response or continued outlining applicable law, but counsel’s failure to solicit a response

from the panel or the individual panel members does not render the disallowance of one
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form of the question harmful; the trial court afforded defense counsel ample opportunity

to inquire of the panel members whether they could apply the presumption of innocence.

Accordingly, appellant was not harmed by the trial court’s disallowance of one form of the

question.   See Woods, 152 S.W.3d at 110 (holding trial court’s denial of a proper

question did not have a substantial or injurious effect or influence in determining jury’s

verdict where defense counsel was able to ask venire member essentially the same

question as the one previously denied).

       Notably, venire member Smith, whom defense counsel originally asked regarding

his feelings toward the law, stated he would follow the law. Smith did not ultimately serve

on the jury. All other venire members stated they would follow the law with regard to the

presumption of innocence.     Based on this record, we conclude the error, if any, in

sustaining the State’s objection and requiring defense to rephrase the question was

harmless. See id. We overrule appellant’s sole issue.

                                    IV.    CONCLUSION

       We affirm the trial court’s judgment.

                                                   GREGORY T. PERKES
                                                   Justice

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

Delivered and filed the
7th day of August, 2014.




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