Affirmed and Memorandum Opinion filed March 26, 2020.




                                      In The

                     Fourteenth Court of Appeals

                               NO. 14-18-00768-CR
                               NO. 14-18-00769-CR

                    JERRY DEVIN GRANADO, Appellant

                                         V.

                       THE STATE OF TEXAS, Appellee

                   On Appeal from the 185th District Court
                            Harris County, Texas
                  Trial Court Cause Nos. 1561969 & 1561970

                          MEMORANDUM OPINION

      In this appeal from two convictions obtained in a consolidated proceeding, the
sole question presented is whether the trial court reversibly erred when it denied a
motion to strike a venireperson for cause.

      When he was before the entire venire panel, the venireperson at issue
expressed that he had “a slight bias” against a defendant who exercised his right not
to testify. The defense moved to strike the venireperson for cause, and the
prosecution agreed that the venireperson should be stricken. Instead of granting the
agreed motion, the trial court summoned the venireperson for a conference at the
bench.

      The Court:         I just have a quick question because I really wasn’t
                         sure where you were in this. I know that we all
                         talked about the defendant’s right not to testify.
      Venireperson:      Yes.
      The Court:         And here’s what I’m sort of trying to figure out
                         where you stand. The law says if a defendant
                         doesn’t testify, you cannot use that against him as
                         evidence.
      Venireperson:      Correct.
      The Court:         Okay. Can you follow that rule?
      Venireperson:      I look at it in a logical sequence of statements but
                         my internal bias, I would be more inclined to
                         believe that he was guilty.
      The Court:         Okay. So—
      Venireperson:      Because you are asking us to believe or not to
                         believe, right?
      The Court:         No.
      Venireperson:      Yes. You are asking us to believe or not to believe
                         evidence.
      The Court:         Well, what I’m asking is for you to base your verdict
                         only on what you hear, not what you don’t hear or
                         what you might speculate.
      Venireperson:      It’s a question of my subconscious.
      The Court:         That’s all I want to know. I want to make sure that
                         we were clear, that you would not be able to follow
                         the rule.
      Venireperson:      I don’t want to say that.
      The Court:         That’s the way I have to ask it.
      Venireperson:      I mean—

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The Court:      Okay. Here’s—
Venireperson:   We are not aware of our subconscious biases.
The Court:      Here’s my problem. We have all kinds of laws.
                People follow the law or maybe they disagree with
                it, they follow the law for the good of the whole.
Venireperson:   I agree with the law.
The Court:      Okay. But what I’m saying is is the point of it is the
                law says if a defendant doesn’t testify, you can’t use
                it against him as evidence. So—just listen for a
                second. So the issue is you might not like it but the
                question is can you follow it. If you can’t, that’s
                fine. I just need to know.
Venireperson:   Actually, I do, I like that law. That’s fine. However,
                there may be circumstances under which I would
                say, huh, that is something we should hear.
The Court:      That’s not the issue for me. My issue is if you get
                into the situation—okay. Let’s look at it this way.
                Let’s say you listen to the State’s case and you don’t
                think they’ve proved it beyond a reasonable doubt,
                you just don’t think the evidence is there.
Venireperson:   Oh, then—
The Court:      Does it matter—
Venireperson:   Then it doesn’t matter.
The Court:      —if he testifies?
Venireperson:   It doesn’t matter.
The Court:      Doesn’t matter? If you listen to the State’s case and
                you believe it beyond a reasonable doubt, does it
                matter if he testifies?
Venireperson:   His testimony may contradict and may—
The Court:      That’s his—that’s his choice. That’s his choice.
Venireperson:   Actually if I’m convinced by the State and he
                refuses to testify, it will make my conviction
                stronger.


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      The Court:           Okay. That’s fine. It could make your conviction
                           stronger. The issue is—here’s what you can’t do.
                           What you can’t do is say they didn’t prove it, they
                           just didn’t bring me the evidence. No, listen. They
                           didn’t prove it. He didn’t testify so I’m going to use
                           that to help them get over the hump.
      Venireperson:        Can you repeat, please?
      The Court:           Okay. You listen to the evidence and you think the
                           State didn’t convince me beyond a reasonable
                           doubt.
      Venireperson:        Okay.
      The Court:           But he didn’t testify so I’m going to use that to help
                           the State get over the hump.
      Venireperson:        No, no.
      The Court:           That’s what I’m concerned about. Okay. Got it.
                           Thanks.

      The trial court denied the defense’s motion to strike the venireperson for
cause, as well as the defense’s related request for an additional peremptory strike.
Ultimately, both the prosecution and the defense exercised peremptory strikes
against the venireperson, which meant that the venireperson did not sit on the jury.
But the defense complained that it would have used a peremptory strike against
another objectionable venireperson who was actually seated on the jury had the trial
court ruled differently.

      The record shows that appellant preserved his complaint with respect to the
trial court’s ruling. See Green v. State, 934 S.W.2d 92, 105 (Tex. Crim. App. 1996).
We therefore consider whether that ruling was in error.

      As the movant below, appellant had the burden of showing that the
venireperson understood the law but that he could not overcome his prejudice well
enough to follow it. See Davis v. State, 329 S.W.3d 798, 807 (Tex. Crim. App. 2010).
By denying the motion, the trial court implicitly found that appellant did not satisfy
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this burden. We look at the entire record when deciding whether the trial court
abused its discretion in making that finding. Id. If the venireperson’s answers were
vacillating, unclear, or contradictory, then we must defer to the trial court’s decision,
because the trial court was in the best position to evaluate the venireperson’s
demeanor, intonation, and expression. Id.

      The venireperson here indicated that he may have a “slight,” “subconscious”
bias against a non-testifying defendant, which is some evidence that would support
a challenge for cause. But there was also opposing evidence that the venireperson
was capable of setting aside this basis. For example, the venireperson said that he
did not agree with the characterization that he would be unable to follow the law.
Because of the oddly phrased double negative, the trial court could have construed
the venireperson as believing that he could follow the law. Indeed, that construction
is supported by the remainder of the venireperson’s responses. The venireperson
stated that he agreed with the law that the defendant has a right not to testify. The
venireperson also said that if he were convinced that the prosecution did not satisfy
its burden of proof, then he would not vote to convict the defendant due to the
defendant’s failure to testify.

      The record as a whole reveals that the venireperson vacillated in his responses
by initially expressing a bias against a non-testifying defendant and by later
indicating that a defendant’s failure to testify would not matter if the prosecution
failed to show beyond a reasonable doubt that the defendant was guilty. Because of
these vacillations, we must defer to the trial court’s implied finding that the
venireperson was capable of overcoming his bias and following the law. See Moore
v. State, 999 S.W.2d 385, 400 (Tex. Crim. App. 1999) (“When the record reflects
that a venireman vacillates or equivocates on his ability to follow the law, the
reviewing court must defer to the trial court.”); Montoya v. State, 810 S.W.2d 160,

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172–73 (Tex. Crim. App. 1989) (holding that the trial court did not abuse its
discretion by denying a challenge for cause where the venireperson indicated that
she would wonder “in the back of [her] mind” why the defendant did not testify but
the venireperson further stated that she would not use the defendant’s failure to
testify as evidence of guilt).

       Appellant responds that the opposite conclusion is required by Cumbo v. State,
760 S.W.2d 251 (Tex. Crim. App. 1988), which held that “when . . . a prospective
juror is shown to be biased as a matter of law, he must be excused when challenged,
even if he states that he can set his bias aside and provide a fair trial.” Id. at 256. The
State counters that Cumbo may not be good law, even though that case has never
explicitly been overruled. The State refers us to more recent authorities that postdate
Cumbo and hold that when a venireperson expresses a bias, the trial court may still
deny a challenge for cause if the venireperson answers that he can follow the law.
See, e.g., Swearingen v. State, 101 S.W.3d 89, 99 (Tex. Crim. App. 2003) (the
venireperson revealed that he had “a slight bias against the defendant” because of
certain pretrial publicity, but the venireperson further stated that his bias would not
prevent him from being open-minded and rendering a verdict based on the evidence
presented in court); Brown v. State, 913 S.W.2d 577, 580–81 (Tex. Crim. App. 1996)
(the venireperson believed that a defendant should testify in his own defense, but the
venireperson also stated that she would be able to follow the law if instructed to do
so); see also Cardenas v. State, 325 S.W.3d 179, 187 (Tex. Crim. App. 2010)
(recognizing that a trial court may rehabilitate a venireperson who initially expresses
an incapability of following the law). We agree with the State that we are bound by
these more recent authorities.




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      We overrule appellant’s sole issue and affirm the trial court’s judgment.




                                      /s/       Tracy Christopher
                                                Justice



Panel consists of Justices Christopher, Bourliot, and Hassan.
Do Not Publish — Tex. R. App. P. 47.2(b).




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