Opinion issued December 11, 2014




                                     In The

                              Court of Appeals
                                    For The

                         First District of Texas
                            ————————————
                              NO. 01-13-00994-CR
                           ———————————
                 ANTHONY SOREL HAYWOOD, Appellant
                                       V.
                      THE STATE OF TEXAS, Appellee


                   On Appeal from the 176th District Court
                           Harris County, Texas
                       Trial Court Case No. 1373686


                         MEMORANDUM OPINION

      Appellant Anthony Sorel Haywood was charged by indictment with

aggravated assault of complainant Chris Charles by threatening him with imminent

bodily harm by using and exhibiting a firearm. A jury found Haywood guilty of

the lesser-included offense of deadly conduct by discharge of a firearm. The trial
court found the indictment’s enhancement paragraph true, and sentenced Haywood

to six years’ imprisonment. In two issues, Haywood contends that the trial court

erred in ruling that Haywood opened the door to his custodial statements and in

denying seven challenges for cause during voir dire. We affirm.

                                   Background

      The complainant Charles drove to Haywood’s apartment intending to

purchase marijuana.     Charles went inside Haywood’s apartment while his

girlfriend, Latoya Simmons, and her six-year old son remained in the car. Charles

and Haywood disagreed about the price of the marijuana. Charles testified he left

the apartment and Haywood followed him outside. Haywood fired a gun as the car

drove away. The bullet hit Charles’s car, but no one inside was hit.

      Simmons called the police, and Charles directed them to Haywood’s

apartment.   Officer Fuhlbrigge of the Houston Police Department detained,

handcuffed, and took Haywood outside of the apartment.                 When Officer

Fuhlbrigge asked Haywood whether he had a gun, Haywood said that he gave the

gun to a friend. Haywood also told Officer Fuhlbrigge that he fired his gun at

Charles because he was afraid that Charles had a knife.

      The trial court suppressed Haywood’s statements. When Haywood cross-

examined Officer Fuhlbrigge, Haywood sought to show the jury that Officer

Fuhlbrigge conducted a sloppy investigation. In response to counsel’s questions,



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Officer Fuhlbrigge admitted that his investigation was not exhaustive: he did not

collect shell casings, conduct ballistic testing on Charles’s car, conduct a gunshot

residue test on Haywood’s hands, or obtain a warrant to search Haywood’s

apartment. When Haywood’s counsel asked Officer Fuhlbrigge why he did not

conduct a more thorough investigation, Officer Fuhlbrigge responded, “we just

didn’t, sir.” He also said, “Based on the statements that we received that day, sir,

we thought that was enough, enough evidence.”

      The trial court ruled that Haywood opened the door to the admission of

Haywood’s previously-suppressed statements and allowed the prosecutor to ask

Officer Fuhlbrigge “very narrow and direct questions about why no search warrant

[was sought] and why not bag his hands.” Officer Fuhlbrigge testified that he did

not perform these tasks because Haywood had admitted to him that he fired a gun

at Charles’s car and then gave the gun to a friend.

                         Challenges of Jurors for Cause

      In his second issue, Haywood contends that the trial court erred by denying

him seven additional challenges for cause.

A.    Standard of Review

      We review a trial court’s ruling on a challenge for cause with “considerable

deference” because the trial court is in the best position to evaluate the

venireperson’s demeanor and responses. Russeau v. State, 171 S.W.3d 871, 879



                                          3
(Tex. Crim. App. 2005); Blue v. State, 125 S.W.3d 491, 497 (Tex. Crim. App.

2003). “When the record does not contain a clearly objectionable declaration by

the venireperson, or the record demonstrates a vacillating or equivocal

venireperson, we accord ‘great deference’ to the trial judge who had the better

opportunity to see and hear the person.” Swearingen v. State, 101 S.W.3d 89, 99

(Tex. Crim. App. 2003).

          We will reverse a trial court’s ruling on a challenge for cause “only if a clear

abuse of discretion is evident.” Blue, 125 S.W.3d at 497 (citation omitted). We

review the totality of the voir dire testimony to determine whether it supports the

trial court’s finding with respect to whether the prospective juror is able to follow

the law as instructed. See King v. State, 29 S.W.3d 556, 568 (Tex. Crim. App.

2000); Murphy v. State, 229 S.W.3d 334, 339 (Tex. App.—Amarillo 2006, pet.

ref’d).

B.        Applicable Law

          A veniremember who cannot presume the defendant’s innocence is

challengeable for cause based upon a bias against the law.          See Ladd v. State, 3

S.W.3d 547, 560 (Tex. Crim. App. 1999) (citing Banda v. State, 890 S.W.2d 42, 55

(Tex. Crim. App. 1994) (en banc)); see also TEX. CODE CRIM. PROC. ANN. art.

35.16(c)(2) (West 2006) (defendant may make challenge for cause when

prospective juror has bias against the law). For challenges based upon an alleged



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bias against the law, the relevant inquiry is whether the veniremember’s beliefs

would “prevent or substantially impair him from following the law as set out in the

trial court’s instructions and as required by the juror’s oath.” Swearingen, 101

S.W.3d at 99 (citing Lagrone v. State, 942 S.W.2d 602, 616 (Tex. Crim. App.

1997)).

      Before a prospective juror can be excused for cause on this basis, the law

must be explained to him and he must be asked whether he can follow that law

regardless of his personal views. Jones v. State, 982 S.W.2d 386, 390 (Tex. Crim.

App. 1998). The proponent of a challenge for cause has the burden of establishing

his challenge is proper. Feldman v. State, 71 S.W.3d 738, 747 (Tex. Crim. App.

2002). The proponent does not meet his burden until he has shown that the

venireperson understood the requirement of the law and could not overcome his

prejudice well enough to follow it. Id.

C.    Analysis

      During voir dire, the trial court advised the veniremembers that they “must

be able to presume a person innocent.”        Haywood’s counsel also told the

veniremembers:

      Now, the presumption of innocence, as the judge talked about, is that
      the State has the entire burden. The defendant has no burden
      whatsoever and therefore he’s presumed innocent. Right? If you-all
      had to vote right now as to whether he’s guilty or innocent, Mr.
      Haywood as he sits here right now is what?



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The veniremembers responded in unison, “Innocent.”

      During vior dire, Haywood’s counsel asked the veniremembers to rank their

“ability” to presume Haywood’s innocence based on a range of 0–10, with zero

meaning the juror presumes Haywood innocent and ten meaning the veniremember

presumes him to be “very guilty”:

      [H]ow would you rate your ability to presume Mr. Haywood to be
      innocent? All right. And let me be specific in the understanding of
      this. To me, in order to be qualified to sit in the jury box your answer
      should be zero, right? If I give you a range of zero to ten, zero being I
      can presume him to be innocent, and ten being I presume him to be
      very guilty, right. So that’s the range. Zero I presume him to be
      innocent; ten, my ability to presume his innocence is not good because
      I think he’s very guilty, right, just as he sits here today.

                                       ***
      So, again, the presumption of innocence is zero, and in order to be on
      the jury, it’s my contention you need to say zero, right? But I want
      you to say whatever number you think. If your ability to presume him
      to be innocent right now is zero say zero. If it’s somewhere in
      between zero and ten give me that number, zero being innocent, ten
      being very guilty.

      39 of the 65 veniremembers ranked themselves at something other than zero.

The parties agreed to strike 19 of those 39. Haywood’s counsel challenged the

remaining 20 for cause, but the trial court denied these challenges: “I think that

your question asks them about rating their ability so it doesn’t mean that they’re

not presuming [Haywood] innocent.” Seven of the 20 veniremembers served on

the jury.




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      Haywood contends that the seven veniremembers’ nonzero answers

established their inability to follow the law regarding the presumption of innocence

and that the trial court erred in denying his challenges for cause. This court

recently addressed a similar issue in Donaldson v. State, No. 01-12-00270-CR,

2014 WL 1004247 (Tex. App.—Houston [1st Dist.] Mar. 13, 2014, pet. ref’d)

(mem. op., not designated for publication). In Donaldson, appellant’s trial counsel

advised the veniremembers to presume Donaldson innocent and later asked if they

had “some position about whether [Donaldson was] presumed to be innocent.” Id.

at *4. Donaldson’s counsel told the veniremembers to give an answer based on a

scale of zero to ten where ten means that the veniremember “absolutely knows he’s

guilty.” Id. On appeal, Donaldson argued that the veniremembers that provided a

nonzero answer showed their inability to follow the presumption of innocence law

and that, therefore, the trial court erred in denying his challenges for cause. Id. at

*5. Following our sister court’s decision in Barnes v. State, No. 14-04-00478-CR,

2005 WL 2420375 (Tex. App.—Houston [14th Dist.] Aug. 25, 2005, no pet.)

(mem. op., not designated for publication), we held that the trial court did not

abuse its discretion in denying Donaldson’s challenges for cause because counsel’s

question “amounted to no more than a survey of veniremembers’ personal

feelings.” Donaldson, 2014 WL 1004247, at *5. The Donaldson court reasoned

that “counsel failed to prove that the prospective jurors who gave nonzero answers



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were properly challengeable for cause because he did not ask whether they could

follow the law despite their prejudices.” Id.; see Barnes, 2005 WL 2420375, at *3

(trial court did not err in denying appellant’s challenges because counsel failed to

ask challenged veniremembers whether their personal beliefs would make them

unable to presume appellant’s innocence).

      Here, Haywood’s counsel asked the veniremembers to “rate [their] ability to

presume Mr. Haywood to be innocent.” His complaint fails for the same reason

described in Donaldson. Counsel failed to ask whether any of the veniremembers

who provided nonzero answers could follow the law on the presumption of

innocence despite their prejudices. See Donaldson, 2014 WL 1004247, at *5. We

thus conclude that Haywood did not meet his burden to show that the

veniremembers understood the law and could not overcome their prejudices well

enough to follow it. See Feldman, 71 S.W.3d at 747 (proponent does not meet

burden until he has shown that venireperson understood requirement of law and

could not overcome his prejudice well enough to follow it). Accordingly, the trial

court did not abuse its discretion in denying Haywood’s challenges for cause.

      We overrule Haywood’s second issue.




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                 Opening the door to Haywood’s oral statements

A.    Standard of Review and Applicable Law

      We review a trial court’s ruling on admissibility under an abuse of discretion

standard. De La Paz v. State, 279 S.W.3d 336, 343 (Tex. Crim. App. 2009).

Evidence that is otherwise inadmissible may be admitted to correct a false

impression left by the questioning of a witness. See Wheeler v. State, 67 S.W.3d

879, 885 (Tex. Crim. App. 2002). Thus, inadmissible evidence may be admitted if

the party against whom the evidence is offered opens the door, provided the

evidence does not stray beyond the scope of the invitation. Schultz v. State, 957

S.W.2d 52, 71 (Tex. Crim. App. 1997). This is true even of statements that are

inadmissible because they constitute custodial interrogations obtained without

Miranda warnings.     See Harris v. New York, 401 U.S. 222, 224–25 (1971)

(defendant opened door to statement taken in violation of Miranda to be used for

impeachment purposes).

B.    Analysis

      In his first issue, Haywood contends that the trial court erred in admitting his

oral statements in which he admitted to Officer Fuhlbrigge that he fired the gun at

Charles’s car and then gave the gun to his friend. The State argues that Haywood

opened the door to their admission by asking Officer Fuhlbrigge why he failed to

take certain steps during the investigation. The State argues that this line of



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questioning created the false impression before the jury that Officer Fuhlbrigge’s

investigation was shoddy. We agree with the State.

      Haywood’s counsel asked Officer Fuhlbrigge whether he bagged

Haywood’s hands to preserve evidence to conduct a gunshot residue test. Officer

Fuhlbrigge testified that he did not.     When Haywood’s counsel asked why

Fuhlbrigge did not, Officer Fuhlbrigge testified “we just didn’t, sir.” Haywood’s

counsel also asked Officer Fuhlbrigge why he did not obtain a search warrant for

Haywood’s apartment, and Officer Fuhlbrigge responded, “Based on the

statements that we received that day, sir, we thought that was enough, enough

evidence.” Because Haywood’s statements were suppressed, Officer Fuhlbrigge

was unable to explain to the jury that there was no need to test Haywood’s hands

for gunshot residue or to search his apartment for the gun because Haywood had

admitted firing the gun and told Officer Fuhlbrigge that the gun was not inside

Haywood’s apartment. We thus conclude that Haywood’s counsel’s questions

regarding why Officer Fuhlbrigge did not bag Haywood’s hands or obtain a search

warrant for Haywood’s apartment left a false impression before the jury that

Officer Fuhlbrigge conducted a shoddy investigation.       Accordingly, Haywood

opened the door to the admission of his oral statements. See Sandoval v. State, No.

14-05-00389-CR, 2006 WL 3433805, at *1–2 (Tex. App.—Houston [14th Dist.]

Nov. 30, 2006, pet. ref’d) (mem. op., not designated for publication) (appellant



                                        10
opened door to admission of his oral statement that he purchased drugs to explain

detective’s failure to request handwriting analysis and correct false impression

with jury).

      Haywood contends that his statement should not have been admitted even if

he opened the door because the statement was “inadmissible in its own right.” In

support of his argument, Haywood cites to a three-judge plurality opinion in Kipp

v. State, 876 S.W.2d 330 (Tex. Crim. App. 1994). That opinion reasons that

opening the door to evidence does not render that evidence admissible “in any

form, including hearsay.” Id. at 337. But plurality opinions are not binding

precedent.    Vasquez v. State, 389 S.W.3d 361, 370 (Tex. Crim. App. 2012).

Accordingly, we are not required to follow the plurality opinion in Kipp. See id.

(court of appeals was not required to follow plurality opinion because it has “no

binding precedential value”).    Further, even were it a majority opinion, the

plurality analysis in Kipp does not support Haywood’s argument, because

Haywood’s counsel opened the door to the admission of Haywood’s custodial

statement, and his statement was otherwise admissible as a statement by a party

and an admission against interest.

      Accordingly, we hold that the trial court did not abuse its discretion in

admitting Haywood’s statements. See Harris, 401 U.S. at 224–25 (defendant

opened door to statement taken in violation of Miranda to be used for



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impeachment purposes); Walker v. State, No. 01-98-00394-CR, 1999 WL 826203,

at *5 (Tex. App.—Houston [1st Dist.] Sept. 14, 1999, pet. ref’d) (opin., not

designated for publication) (“We note that while this evidence would normally be

inadmissible because it constituted custodial interrogation without Miranda

warnings, counsel’s questions created an incomplete picture of the evidence and

incriminating facts; therefore, the door was opened for admission of appellant’s

statement.”); see also Sandoval, 2006 WL 3433805, at *1–2 (appellant opened

door to otherwise inadmissible oral statements to police that trial court had

suppressed).

      We overrule Haywood’s first issue.

                                   Conclusion

      We affirm the trial court’s judgment.


                                              Rebeca Huddle
                                              Justice

Panel consists of Chief Justice Radack and Justices Bland and Huddle.
Do not publish. TEX. R. APP. P. 47.2(b).




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