
                              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 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 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).

      Accordingly, the judgments are affirmed.

                                        Brian Quinn
                                        Chief Justice
Do not publish.



-----------------------
      [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.



