                                 NO. 07-09-0397-CR

                            IN THE COURT OF APPEALS

                     FOR THE SEVENTH DISTRICT OF TEXAS

                                    AT AMARILLO

                                       PANEL C

                                  MARCH 10, 2011


                                   SAMMY PINEDA,

                                                                Appellant
                                           v.

                                THE STATE OF TEXAS,

                                                                Appellee
                           ___________________________

            FROM THE 140th DISTRICT COURT OF LUBBOCK COUNTY;

         NO. 2008-418,759; HONORABLE JIM BOB DARNELL, PRESIDING


                                Memorandum Opinion


Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.

      A jury convicted Sammy Pineda of three counts of aggravated sexual assault of

his stepdaughter. He challenges those convictions by contending the trial court erred in

1) admitting hearsay evidence, and 2) denying his challenges for cause to three venire

members. We affirm the judgments.

      Issue 1 – Hearsay Evidence

      In his first issue, appellant argues that the trial court abused its discretion in

admitting testimony from Patti Hensley, a school nurse to whom the victim made an
outcry, that appellant had initially denied the allegations to the child’s mother but later

admitted them. The issue is overruled.

       We note that this same evidence came before the jury at other times without

objection. For instance, the victim’s mother testified that she confronted appellant about

the allegations and he denied them until she brought the victim into the room, at which

time he admitted touching her inappropriately. The mother also stated that appellant

tried to blame the victim for his behavior.       Furthermore, the victim’s grandmother

testified that appellant indicated to her he was guilty. So, any error in the admission of

the evidence was cured when the same evidence came in elsewhere without objection.

Lane v. State, 151 S.W.3d 188, 193 (Tex. Crim. App. 2004).

       Issues 2 – 4 - Challenges for Cause

       In his remaining issues, appellant complains of the trial court’s failure to grant his

challenges for cause to venire members Timothy Gore, Jeff Butler, and Shanika

Johnson. We overrule the issues.

       Appellant had the burden to prove that his challenges for cause were proper.

Gardner v. State, 306 S.W.3d 274, 295 (Tex. Crim. App. 2009), cert. denied, __ U.S.

__, 131 S.Ct. 103, 178 L.Ed.2d 64 (2010). Furthermore, if a juror cannot consider the

full range of punishment, which was the alleged problem here, he is subject to removal

for cause. Standefer v. State, 59 S.W.3d 177, 181 (Tex. Crim. App. 2001). Yet, before

a potential juror can be removed or struck from the venire, the trial court must explain to

him the law and ask whether he can follow it regardless of his personal views. Feldman

v. State, 71 S.W.3d 738, 747 (Tex. Crim. App. 2002).           In other words, the venire

member must be able to keep an open mind with respect to punishment until he hears

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the evidence. Ladd v. State, 3 S.W.3d 547, 559 (Tex. Crim. App. 1999). And, the mere

fact that he cannot envision a scenario during voir dire in which probation, for example,

would be appropriate, does not render him fatally biased. Id. Simply put, the venire

member’s position must be unequivocal for if there is vacillation or equivocation with

respect to his ability to follow the law or consider the entire range of punishment, then

we must defer to the trial court’s judgment or discretion. Brown v. State, 913 S.W.2d

577, 580 (Tex. Crim. App. 1996); Borders v. State, No. 02-02-0178-CR, 2003 Tex. App.

LEXIS 5202, at *3 (Tex. App.–Fort Worth June 19, 2003, no pet.) (not designated for

publication).

       Here, Gore, Butler, and Johnson initially expressed their inability to consider

probation for aggravated sexual assault. However, when the State presented Gore with

a hypothetical of “consensual” sex between a perpetrator who was seventeen and an

aggressive female victim who was thirteen, Gore conceded that he would “have to hear

the facts” although he again stated it would be difficult to give probation. After more

questioning, he stated that he could consider probation “[i]f the facts are very, very

clear” and “it better be a good case.” Finally, upon being asked by the court whether he

would “keep an open mind until you hear all the evidence, and be able to tell us at this

point in time that depending on the facts of the case that you can give some thought or

consideration to the possibility of probation in addition to the penitentiary,” Gore replied

in the affirmative.

       With respect to Johnson and Butler, they both stated at one point that the only

scenario in which they could consider probation was that scenario described in the



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State’s hypothetical.1 Butler agreed that the only way he could make a determination of

whether probation was appropriate was when he heard the evidence in the case.

Moreover, when the court queried whether he understood that he was being asked if

there was a circumstance where he could consider probation, he stated, “Yes, there is.”

Johnson indicated that “something like” the hypothetical posed by the State would be

something she would “consider” for probation. When she was also asked if she could

think of a situation where she could consider probation as a possible punishment for the

offense, she stated, “Yes, sir.”

       Whether the venire members in question couched their answers in relation to the

State’s hypothetical or not, the answers indicate that their purported inability to consider

probation was not unequivocal.        They could consider it if an appropropriate scenario

presented itself (even though that scenario was not likely present at bar), and that was

enough to insulate the trial court’s decision from attack. See Emenhiser v. State, 196

S.W.3d 915, 928 (Tex. App.–Fort Worth 2006, pet. ref’d) (finding the trial court did not

err in denying a challenge for cause when the venire member said he could not

consider probation but also said he could consider probation); Borders v. State, supra

(stating that the trial court did not err when denying the challenge because the tenor of

the responses indicated that the venire member “would give probation some

consideration” even though the member’s comments left little hope to think that would

occur in appellant’s favor).




       1
       To the extent that appellant complains that the State’s hypothetical was in essence a
“commitment” question, he did not object to it at trial on that basis. So, that issue was waived.

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      Accordingly, the judgments are affirmed.



                                                 Brian Quinn
                                                 Chief Justice

Do not publish.




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