                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                              NO. 02-13-00380-CR


ADRIAN LEE WHITEMON                                                 APPELLANT

                                        V.

THE STATE OF TEXAS                                                        STATE


                                     ----------

        FROM THE 432ND DISTRICT COURT OF TARRANT COUNTY
                    TRIAL COURT NO. 1209550D

                                     ----------

                                   OPINION

                                     ----------

      A jury convicted Appellant Adrian Lee Whitemon of possession of four or

more grams of cocaine but less than 200 grams.         The trial court found the

enhancement paragraph to be true and sentenced him to thirty-five years’

confinement. In three points, Appellant contends that the trial court erred by

improperly limiting his voir dire questions, by denying his motion to suppress the

arrest-and-search warrant, and by admitting evidence of his prior bad acts.
Because the trial court committed no reversible error, we affirm the trial court’s

judgment.

Motion to Suppress

      The police executed a no-knock search-and-arrest warrant and found

drugs, money, and several people, including Appellant, inside the apartment. In

his second point, Appellant contends that the trial court erred by denying his

motion to suppress the search-and-arrest warrant and by admitting the evidence

obtained via the warrant.      He argues that although the warrant contained a

description of “Cush” or “Kush,” the person to be arrested, the supporting affidavit

contained no description, not even a statement of the gender of the person to be

arrested.   In addition to arguing that the warrant fails for lack of specificity,

Appellant also argues that it fails for lack of corroboration.

      We review a trial court’s ruling on a motion to suppress evidence under a

bifurcated standard of review. 1 We give almost total deference to a trial court’s

rulings on questions of historical fact and application-of-law-to-fact questions that

turn on an evaluation of credibility and demeanor, but we review de novo

application-of-law-to-fact questions that do not turn on credibility and demeanor. 2


      1
        Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim. App. 2007); Guzman
v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).
      2
       Amador, 221 S.W.3d at 673; Estrada v. State, 154 S.W.3d 604, 607 (Tex.
Crim. App. 2005); Johnson v. State, 68 S.W.3d 644, 652–53 (Tex. Crim. App.
2002).



                                           2
We must uphold the trial court’s ruling if it is supported by the record and correct

under any theory of law applicable to the case even if the trial court gave the

wrong reason for its ruling. 3

      In assessing the sufficiency of an affidavit for an arrest warrant or search

warrant, the reviewing court is limited to the four corners of the affidavit. 4 The

reviewing court should interpret the affidavit in a common sense and realistic

manner, recognizing that the magistrate was permitted to draw reasonable

inferences. 5 We must defer to the magistrate’s finding of probable cause if the

affidavit demonstrates a substantial basis for his conclusion. 6

      Appellant points out that article 15.02 of the Texas Code of Criminal

Procedure requires an arrest warrant to “specify the name of the person whose

arrest is ordered, if it be known, if unknown, then some reasonably definite

description must be given.” 7     Further, as both sides note, the law is well

established that information provided by an informant must contain some indicia


      3
      State v. Stevens, 235 S.W.3d 736, 740 (Tex. Crim. App. 2007);
Armendariz v. State, 123 S.W.3d 401, 404 (Tex. Crim. App. 2003), cert. denied,
541 U.S. 974 (2004).
      4
      Jones v. State, 833 S.W.2d 118, 123 (Tex. Crim. App. 1992), cert. denied,
507 U.S. 921 (1993).
      5
       Davis v. State, 202 S.W.3d 149, 154 (Tex. Crim. App. 2006).
      6
       Rodriguez v. State, 232 S.W.3d 55, 64 (Tex. Crim. App. 2007).
      7
       Tex. Code Crim. Proc. Ann. art. 15.02 (West 2005).



                                          3
of reliability or be reasonably corroborated by police before it can be used to

justify a search. 8

       In denying the motion to suppress, the trial court made oral findings of fact

and conclusions of law:

             All right. After reviewing State’s Exhibit No. 1 and hearing
       testimony and cross-examination, the Court, after doing so,
       concludes as a matter of law and matter of fact that the Defendant’s
       motion fails.

               The warrant does establish probable cause that at 2377
       Dalworth, Apartment 235, Grand Prairie Texas, Tarrant County, . . .
       Texas, that Grand Prairie police officers did have probable cause to
       request and secure a warrant for that location on the basis that the
       information that’s contained therein, upon which the officers went
       into the location and made a number of discoveries that have been
       identified as State’s Exhibit 2 through 18, inclusively, and State’s
       Exhibit 22 that have been submitted and received as conditional.

             Still relying on other additional information that still needs to
       be brought forward, it’s still the conclusion of the Court that the
       information, the evidence obtained therein, is admissible and was
       done in conformity of the Fourth and Fourteenth Amendments of the
       United States Constitution, Article 1, Section 9 of the State
       Constitution.

            Therefore, the Defendant’s motion should be and is hereby
       denied.

             Are there any additional findings of fact and conclusions of
       law, State?

             [Prosecutor]: And that all items that were seized from that
       apartment on that date and time are admissible as a matter of law
       and fact.



       8
        Illinois v. Gates, 462 U.S. 213, 242, 103 S. Ct. 2317, 2334 (1983).



                                         4
             THE COURT: That is correct. And that’s why I identified them
      specifically. If there are additional items that you intend to offer that
      were not—have not been presented to the Court thus far, that would
      also be admissible and that they were collected lawfully.

      The search-and-arrest warrant was based on two affidavits.            The first

affidavit included the name Kush or Cush and a physical description of this

person: “B/M 5’2”–5’5” 145–60 lbs, BLK/BRO, Tear drop tattoos on near right

eye and multiple tat[t]oos all upper torso and arms.”        This is a “reasonably

definite description” under article 15.02. 9

      The affidavits show that the police used their informant to make two

controlled buys.    Their information was that Cush or Kush was selling crack

cocaine out of the apartment.       One affidavit contains the statement that the

confidential informant had, in the past, provided information that “ha[d] led to the

execution of several narcotic search warrants and the arrest of several narcotic

dealers within the city limits of Grand Prairie.” The affidavit also describes the

procedure that the police used for sending the informant to make the controlled

buys. Thus, the affidavits provide some indicia of reliability of the informant.

Based on the contents of both affidavits and applying the appropriate standard of

review, 10 we hold the affidavits sufficient to support the trial court’s probable


      9
       See Tex. Code Crim. Proc. Ann. art. 15.02; Walthall v. State, 594 S.W.2d
74, 80–81 (Tex. Crim. App. [Panel Op.] 1980).
      10
       See Gates, 462 U.S. at 242, 103 S. Ct. at 2334; Moreno v. State, 415
S.W.3d 284, 287 (Tex. Crim. App. 2013).



                                           5
cause finding and sufficient to support the challenged warrant. The trial court

therefore did not err by denying Appellant’s motion to suppress. Because of our

conclusion that the trial court properly denied Appellant’s motion to suppress, we

do not address the State’s contention that Appellant lacked standing to challenge

the police entry into the apartment he claimed to be merely visiting. 11         We

overrule Appellant’s second point.

Limitations on Voir Dire

      In his first point, Appellant argues that the trial court abused its discretion

by preventing the defense from asking proper voir dire questions. In Standefer v.

State, 12 a 5-4 decision with two judges concurring with the majority, the Texas

Court of Criminal Appeals held,

      [A] question is a commitment question if one or more of the possible
      answers is that the prospective juror would resolve or refrain from
      resolving an issue in the case on the basis of one or more facts
      contained in the question.

            ....

      [F]or a commitment question to be proper, one of the possible
      answers to that question must give rise to a valid challenge for
      cause. 13

Before Standefer, the emphasis was not on whether the question was a

commitment question but on whether the commitment was to treat the facts of
      11
       See Tex. R. App. P. 47.1.
      12
       59 S.W.3d 177, 180 (Tex. Crim. App. 2001).
      13
       Id. at 180–82.



                                         6
the specific case on trial in a particular manner. Additionally, the law recognized

that a legitimate purpose of posing voir dire questions was not solely to seek

grounds for valid challenges for cause, but also to enable the litigant to

intelligently exercise peremptory challenges. As our sister court in San Antonio

explained almost twenty years ago,

               A voir dire question is proper if its purpose is to discover a
       venire member’s view on an issue applicable to the case. Voir dire
       is intended to expose bias or prejudice which might prevent full and
       fair consideration of the evidence to be presented at trial. Therefore,
       if a question is proper, the denial of an answer prevents the
       intelligent exercise of peremptory challenges and harm is shown. 14

And four years before Standefer, the Texas Court of Criminal Appeals explained

in Atkins v. State, 15

       In Shipley,[16] we held that control of the voir dire examination is
       within the sound discretion of the trial judge and that the trial judge is
       given wide discretion in this area. Although this is true, a trial judge
       must not exceed his discretion by denying a proper question or
       allowing an improper question. And in a case such as this, a trial
       judge must determine if the hypothetical is used to explain the law or
       to commit the venire to specific facts of the case. To find that the
       question was used for anything other than to explain the law would
       be an abuse of discretion and would constitute reversible error. 17


       14
        Clemments v. State, 940 S.W.2d 207, 210 (Tex. App.—San Antonio
1996, pet. ref’d) (citing Ex parte McKay, 819 S.W.2d 478, 482 (Tex. Crim. App.
1990)).
       15
         951 S.W.2d 787, 790 (Tex. Crim. App. 1997).
       16
         Shipley v. State, 790 S.W.2d 604 (Tex. Crim. App. 1990).
       17
         Atkins, 951 S.W.2d at 790.



                                           7
      In Atkins, a case in which a defendant was being tried for possession of a

residue amount of cocaine found in a crack pipe, the questions were, “Is there

anybody who would be unable to convict somebody for possession of a residue

amount of cocaine . . . ?” and “Is there anyone who would be unable to convict in

this type of circumstance?” 18 The Atkins court held,

      This type of questioning, using a hypothetical or otherwise, is
      improper and serves no purpose other than to commit the jury to [a]
      specific set of facts prior to the presentation of any evidence at
      trial. 19

      In the case now before this court, Appellant asked the following questions:

   1. If a person walks into a house, somebody else’s house[,] and
   there’s [a] controlled substance in there, do you think that means
   they’re automatically guilty?

We cannot say that this is a question that seeks to commit a juror improperly to

a specific set of facts or, that is, to treating a specific set of facts in a particular

way. It appears to be a question about mere presence:

      [W]hen the theory of prosecution is that the accused or another
      acted together in possessing a narcotic drug, the evidence must
      affirmatively link the accused to the contraband in such a manner
      that it can be concluded that he had knowledge of the contraband
      as well as control over it. Mere presence alone at a place where the
      contraband is being used or possessed by others does not justify a
      finding of joint possession, or constitute one a party to an offense. 20


      18
        Id. at 789.
      19
        Id.
      20
        Martin v. State, 753 S.W.2d 384, 386 (Tex. Crim. App. 1988) (citations
omitted).


                                           8
It may, however, run afoul of the prohibition against asking how a juror will

respond to the specific facts of the case at bar. Appellant’s defense was that he

walked into someone else’s apartment where drugs were found, that he was

merely present when the police arrived, and that he did not knowingly or

intentionally exercise care, custody, or control over the contraband.             The

question may inquire about the venire member’s reaction to the specific facts of

this case rather than his ability to follow the law, as discussed in Atkins. 21

       2.   Do you think that the State would have to show more
       connection than just being in the same house with a controlled
       substance to find someone guilty?

This is a closer inquiry, because the question includes the fact that the

contraband is in a habitation but is also an inquiry into the law upon which

Appellant was entitled to rely:      mere presence is not sufficient to support

conviction. 22

       3.   Would you agree that the State has to show for
       possession that a person intentionally and knowingly had the
       substance or exercised control over it?

This question is a commitment question, but it is also a statement of the law upon

which Appellant was entitled to rely. 23 As the Standefer court explained,




       21
        See Atkins, 951 S.W.2d at 789–90.
       22
        See id.; Martin, 753 S.W.2d at 386.
       23
        See Atkins, 951 S.W.2d at 789–90; Martin, 753 S.W.2d at 386.



                                          9
      [T]he inquiry for improper commitment questions has two steps: (1)
      Is the question a commitment question, and (2) Does the question
      include facts—and only those facts—that lead to a valid challenge
      for cause? If the answer to (1) is “yes” and the answer to (2) is “no,”
      then the question is an improper commitment question, and the trial
      court should not allow the question. 24

Under the Standefer test, the question properly inquires into the venire member’s

ability to follow the law on which Appellant was entitled to rely without injecting

specific facts of the case into the inquiry and could lead to a challenge for

cause. 25 Appellant was allowed to ask this question, and the prospective juror

answered, “Yes.”    Appellant does not complain that he wanted to ask that

question of other members of the venire.

      4.   Okay. The fact that the[y are] in mere proximity of it
      wouldn’t necessarily be enough to convince you?

This final question does not inquire whether the venire can follow the law.

Rather, this question asks what it would take to convince the venire member in

the case at bar. This question therefore improperly inquires into how the venire

member would treat the evidence expected to be presented at trial. 26

      We do not need to enter the fray concerning whether the lawyers may ask

questions that enable them to exercise peremptory strikes with some degree of

intelligence because even if we assume that the trial court erred by sustaining

      24
        Standefer, 59 S.W.3d at 182–83.
      25
        See id.
      26
        See id.; Atkins, 951 S.W.2d at 789–90.



                                        10
the State’s objections to Appellant’s first, second, and fourth questions set out

above, we hold that such error was harmless.

      Appellant argues that by sustaining the objections to his first, second, and

fourth questions, the trial court violated his constitutional rights to counsel, to be

heard, to a trial by a fair and impartial jury, and to due process. He does not,

however, direct us to any portion of the record at which he raised these

constitutional claims before the trial court. They are therefore not preserved. 27

Appellant also argues that the voir dire error alleged is of constitutional

magnitude.     The Texas Court of Criminal Appeals, however, instructs us to

consider this type of voir dire error nonconstitutional error under rule of appellate

procedure 44.2(b). 28 We therefore apply rule 44.2(b) and disregard the error if it

did not affect Appellant’s substantial rights. 29

      A substantial right is affected when the error had a substantial and

injurious effect or influence in determining the jury’s verdict. 30 Conversely, an

      27
        See Tex. R. App. P. 33.1(a); Everitt v. State, 407 S.W.3d 259, 262–63
(Tex. Crim. App. 2013); Ford v. State, 305 S.W.3d 530, 532 (Tex. Crim. App.
2009); Sanchez v. State, 418 S.W.3d 302, 306 (Tex. App.—Fort Worth 2013, pet.
ref’d).
      28
        Sanchez v. State, 165 S.W.3d 707, 713 (Tex. Crim. App. 2005); Tex. R.
App. P. 44.2(b).
      29
       See Tex. R. App. P. 44.2(b); Mosley v. State, 983 S.W.2d 249, 259 (Tex.
Crim. App. 1998) (op. on reh’g), cert. denied, 526 U.S. 1070 (1999).
      30
       King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997) (citing
Kotteakos v. United States, 328 U.S. 750, 776, 66 S. Ct. 1239, 1253 (1946)).



                                           11
error does not affect a substantial right if we have “fair assurance that the error

did not influence the jury, or had but a slight effect.” 31          In making this

determination, we review the record as a whole, including any testimony or

physical evidence admitted for the jury’s consideration, the nature of the

evidence supporting the verdict, and the character of the alleged error and how it

might be considered in connection with other evidence in the case. 32 We may

also consider the jury instructions, the State’s theory and any defensive theories,

whether the State emphasized the error, closing arguments, and even voir dire, if

applicable. 33

       Even if the trial court erred in sustaining the State’s objections to the first,

second, and fourth questions set out above, the error was harmless beyond a

reasonable doubt, based on the record before us. An inability to ask those three

questions did not have substantial and injurious effect or influence in determining

the jury’s verdict, nor did it prevent Appellant’s access to information necessary

for a proper challenge for cause. All four questions before us dealt with the

venire’s ability to properly apply the law of mere presence. The third question

was allowed to be asked and answered; it inquired into the venire’s ability to


      31
        Solomon v. State, 49 S.W.3d 356, 365 (Tex. Crim. App. 2001); Johnson
v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998).
      32
        Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002).
      33
        Id. at 355–56.



                                         12
properly apply the law of mere presence. Nothing in the record suggests that

Appellant was prohibited from asking this question of other members of the

venire individually.

      We overrule Appellant’s first point.

Extraneous Bad Acts

      In his third point, Appellant argues that the trial court abused its discretion

in the guilt phase by admitting evidence of his “extraneous bad acts concerning

[his] statement to a bond officer.”     An appellate court reviews a trial court’s

decision to admit evidence for an abuse of discretion. 34 A trial court abuses its

discretion in admitting evidence if that decision falls outside the wide zone of

reasonable disagreement. 35

      Appellant’s defense at trial was that he was merely a visitor at the

apartment and that none of the cocaine found there belonged to him. The bond

officer testified on rebuttal that Appellant had said that his drug of choice was

cocaine. Although this testimony is clearly prejudicial (why else would the State

have offered it in rebuttal), the question is whether it is unfairly prejudicial. 36 As

the State correctly argues, any theoretical unfair prejudice did not outweigh the


      34
        Sauceda v. State, 129 S.W.3d 116, 120 (Tex. Crim. App. 2004).
      35
        Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (op.
on reh’g).
      36
        Wheeler v. State, 67 S.W.3d 879, 888–89 (Tex. Crim. App. 2002).



                                          13
probative value of the testimony, in light of Appellant’s defense that he did not

knowingly or intentionally possess the cocaine found in the apartment. 37 The

State was required to prove intentional and knowing possession, and the case

was a circumstantial evidence case. The bond officer’s testimony was brief and

to the point. It directly attacked Appellant’s defense and directly supported the

State’s theory of the case. The testimony was not likely to have confused the

jury or to cause the jury to wrongfully convict Appellant. 38 Additionally, as the

State argues, the statement is Appellant’s own, an admission by a party

opponent 39 as well as an admission against penal interest. 40 We therefore hold

that the probative value of the statement was not substantially outweighed by the

danger of unfair prejudice. 41   Consequently, the trial court did not abuse its




      37
        See Owen v. State, No. 02-03-00164-CR, 2004 WL 966323, at *6 (Tex.
App.—Fort Worth May 6, 2004, no pet.) (mem. op., not designated for
publication) (holding evidence that Owen had previously received drugs via
Fedex and had previously possessed methamphetamine admissible rebuttal
evidence to show current knowing and intentional possession of Fedex package
containing methamphetamine in face of her denial).
      38
        See Maranda v. State, 253 S.W.3d 762, 768 (Tex. App.—Amarillo 2007,
pet. dism’d) (holding evidence of drug use following aggravated robbery relevant
to defendant’s motive to commit robbery and that it did not confuse jury or lead
them to wrongly convict and took minimal time to develop).
      39
       See Tex. R. Evid. 801(E)(2).
      40
       See Tex. R. Evid. 803(24).
      41
       See Tex. R. Evid. 403.



                                       14
discretion by admitting Appellant’s statement to the bond officer, and we overrule

Appellant’s third point.

Conclusion

      Having overruled Appellant’s three points, we affirm the trial court’s

judgment.




                                                  /s/ Lee Ann Dauphinot
                                                  LEE ANN DAUPHINOT
                                                  JUSTICE

PANEL: DAUPHINOT, GARDNER, and WALKER, JJ.

WALKER, J., concurs without opinion.

PUBLISH

DELIVERED: March 5, 2015




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