                                                                   PD-0584-15
                PD-0584-15                       COURT OF CRIMINAL APPEALS
                                                                  AUSTIN, TEXAS
                                                 Transmitted 5/14/2015 4:20:00 PM
                                                  Accepted 5/15/2015 11:47:13 AM
                                                                   ABEL ACOSTA
                 NO. PD-______-15                                          CLERK


    IN THE TEXAS COURT OF CRIMINAL APPEALS
                 AUSTIN, TEXAS

               HENRY GONZALES, JR.,
                    Petitioner
                        V.
               THE STATE OF TEXAS,
                    Respondent

     PETITION FOR DISCRETIONARY REVIEW

             OF THE DECISION OF
            THE COURT OF APPEALS
       FOR THE THIRD DISTRICT OF TEXAS
                AUSTIN, TEXAS
 ON APPEAL FROM THE JUDGMENT RENDERED BY
      THE 299TH JUDICIAL DISTRICT COURT
           OF TRAVIS COUNTY, TEXAS
     CRIMINAL ACTION NO. D-1-DC-12-904023
  HONORABLE KAREN SAGE, JUDGE PRESIDING

           ORAL ARGUMENT REQUESTED



                             RICHARD D. REED
                             316 W. 12th Street, Suite 313
                             Austin, Texas 78701-1820
                             512-322-9443
                             rick.reed@maverickcounsel.com
May 15, 2015                 State Bar No. 16686100
                             LEAD COUNSEL FOR PETITIONER
              IDENTITY OF JUDGE, PARTIES, AND COUNSEL


Trial Court Judge:                  Hon. Karen Sage, Judge
                                    299th Judicial District Court
                                    509 West 11th Street, 8th Floor
                                    Austin, Texas 78701-2103
Petitioner:                         Henry Gonzales, Jr.
                                    Mark W. Stiles Unit
                                    3060 FM 3514
                                    Beaumont, Texas 77705-7635
Trial Counsel for Petitioner:       Richard D. Reed
                                    Law Office of Rick Reed
                                    316 W. 12th Street, Suite 313
                                    Austin, Texas 78701-1820
                                    Hipolito ‘Polo’ Gonzalez, III
                                    Hipolito Gonzalez Law Firm, P.C.
                                    1411 West Avenue, Suite 100
                                    Austin, Texas 78701-1537
Appellate Counsel for Petitioner:   Richard D. Reed
                                    Law Office of Rick Reed
                                    316 W. 12th Street, Suite 313
                                    Austin, Texas 78701-1820
Respondent:                         The State of Texas
Trial Counsel for State:            Mona Shea
                                    Travis County District Attorney’s Office
                                    509 West 11th Street, Suite 1.100
                                    Austin, Texas 78701-2103
                                    Christopher H. Baugh
                                    Travis County District Attorney’s Office
                                    509 West 11th Street, Suite 1.100
                                    Austin, Texas 78701-2103

                                     - ii -
Appellate Counsel for State:   Georgette Hogarth
                               Travis County District Attorney’s Office
                               509 West 11th Street, Suite 1.100
                               Austin, Texas 78701-2103




                               - iii -
                                            TABLE OF CONTENTS


IDENTITY OF JUDGE, PARTIES, AND COUNSEL ................................................. ii
INDEX OF AUTHORITIES .............................................................................................. v
STATEMENT REGARDING ORAL ARGUMENT..................................................... 2
STATEMENT OF THE CASE........................................................................................... 2
STATEMENT OF PROCEDURAL HISTORY .............................................................. 3
GROUNDS FOR REVIEW ................................................................................................ 4
          Is the trial court’s erroneous exclusion of the following commitment
          question that Petitioner’s trial counsel sought to ask prospective jurors
          during his voir dire examination of the jury panel subject to a harm
          analysis: If you served as a juror in a murder case, and you heard enough
          evidence during the trial that you were convinced that the defendant
          probably committed the offense charged, but you were not convinced
          beyond a reasonable doubt that he did so, could you follow the law and
          acquit him?
REASONS FOR GRANTING REVIEW ......................................................................... 4
STATEMENT OF FACTS ................................................................................................... 4
ARGUMENT ......................................................................................................................... 8
PRAYER FOR RELIEF ..................................................................................................... 16
CERTIFICATE OF SERVICE.......................................................................................... 17
CERTIFICATE OF COMPLIANCE............................................................................... 18
APPENDIX ....................................................................................................................... Post




                                                              - iv -
                                          INDEX OF AUTHORITIES


CASES

Arizona v. Fulminante, 499 U.S. 279 (1991).................................................................... 10, 13

Cage v. Louisiana, 498 U.S. 39 (1990)................................................................................ 9, 10

Easley v. State, 424 S.W.3d 535 (Tex. Crim. App. 2014)................................................... 2, 6

Gonzales v. State, 994 S.W.2d 170 (Tex. Crim. App. 1999).....................................2, 6, 9, 10

Homan v. State, 662 S.W.2d 372 (Tex. Crim. App. 1984) ................................................... 10

In re Winship, 397 U.S. 358 (1970) ....................................................................................... 10

Jones v. State, 223 S.W.3d 379 (Tex. Crim. App. 2007) ......................................................... 2

Morgan v. Illinois, 504 U.S. 719 (1992) .................................................................................. 16

Nunfio v. State, 808 S.W.2d 482 (Tex. Crim. App. 1991)...................................................... 2

Rose v. Clark, 478 U.S. 570 (1986) .................................................................................. 12, 13

Sullivan v. Louisiana, 508 U.S. 275 (1993) .................................. 9, 10, 11, 12, 13, 14, 15, 16

RULES

TEX. R. APP. P. 44.2................................................................................................................. 6

TEX. R. APP. P. 66.3(b) ........................................................................................................ 6, 7




                                                                -v-
                                 NO. PD-______-15

               IN THE TEXAS COURT OF CRIMINAL APPEALS
                            AUSTIN, TEXAS

                              HENRY GONZALES, JR.,
                                   Petitioner
                                          V.
                              THE STATE OF TEXAS,
                                   Respondent

                PETITION FOR DISCRETIONARY REVIEW

                        OF THE DECISION OF
                       THE COURT OF APPEALS
                  FOR THE THIRD DISTRICT OF TEXAS
                           AUSTIN, TEXAS
            ON APPEAL FROM THE JUDGMENT RENDERED BY
                 THE 299TH JUDICIAL DISTRICT COURT
                      OF TRAVIS COUNTY, TEXAS
                CRIMINAL ACTION NO. D-1-DC-12-904023
             HONORABLE KAREN SAGE, JUDGE PRESIDING

TO THE HONORABLE JUDGES OF SAID COURT:

      NOW COMES Petitioner, Henry Gonzales, Jr., by and through his attorney of

record, Richard D. Reed, and, pursuant to the provisions of Rule 66, Texas Rules of

Appellate Procedure, et seq., hereby petitions this Court to review the decision of the

court of appeals affirming the judgment rendered by the trial court in the above-

referenced criminal action.
                    STATEMENT REGARDING ORAL ARGUMENT


          This case presents significant issues of state and federal constitutional law, the

resolution of which potentially affects every murder case tried before a jury in this

state. Oral argument would be helpful because the issues presented are similar to, but

nevertheless fundamentally distinguishable from, certain questions that this Court has

previously addressed. See, e.g., Nunfio v. State, 808 S.W.2d 482 (Tex. Crim. App. 1991),

Gonzales v. State, 994 S.W.2d 170 (Tex. Crim. App. 1999), Jones v. State, 223 S.W.3d 379

(Tex. Crim. App. 2007), and Easley v. State, 424 S.W.3d 535 (Tex. Crim. App. 2014).

Accordingly, the proper resolution of such issues will require a thorough

understanding of how they differ from questions that this Court has previously

addressed. Oral argument can facilitate such an understanding.


                                  STATEMENT OF THE CASE


          On March 12, 2012, a Travis County grand jury issued an indictment in the

above-referenced criminal action charging Petitioner, as a habitual felony offender,

with the first-degree felony offense of murder. C.R. at 1–2.1 On August 27, 2012, the

299th Judicial District Court of Travis County empaneled a jury for trial of the

aforesaid criminal action, and Petitioner subsequently entered a plea of “not guilty” to

1
    As used herein, “C.R.” refers to the clerk’s record, and “R.R.” refers to the reporter’s record.

                                                      2
the aforesaid charge. C.R. at 72–80, 153; III R.R. at 177; IV R.R. at 18–23. C.R. at

72–80; III R.R. at 177.

       On August 31, 2012, the jury convicted Petitioner of the aforesaid charge, and

the trial court thereupon held a hearing before the jury to determine Petitioner’s

punishment. C.R. at 153; VII R.R. at 110–111, 113–122, 126–136. At the conclusion

of the punishment hearing, the jury returned a verdict finding the enhancement

allegations set forth in the indictment to be true and assessing Petitioner’s punishment

at imprisonment in the Texas Department of Criminal Justice for life. C.R. at 137;

VII R.R. at 146.

       On September 4, 2012, Petitioner filed a motion for new trial with the trial

court. C.R. at 171–172; VIII R.R. at 1, 8. On January 9, 2013, Petitioner filed a

written notice of appeal with the trial court.2


                    STATEMENT OF PROCEDURAL HISTORY


       On December 4, 2014, the Court of Appeals for the Third District of Texas

2
  On September 5, 2012, the trial court entered an order removing Petitioner’s trial counsel as his
attorney of record in the case below and appointing another attorney to represent him in all post-
conviction proceedings related thereto. That order effectively divested Petitioner’s trial counsel of
the authority to file a notice of appeal on behalf of Petitioner, prompting him to file a petition for
writ of mandamus with the Court of Appeals for the Third District of Texas seeking vacation of
the order. C.R. at 335–386. The court of appeals subsequently dismissed the petition as moot after
Judge Bob Perkins, who was assigned to the case below after the trial judge recused herself, signed
an order granting Petitioner’s motion to set aside the trial court’s order removing his trial counsel as
his attorney of record in the case below. In re Gonzales, No. 03-12-00611-CV (Tex. App.—Austin
Jan. 17, 2013, no pet.) (mem. op. not designated for publication).

                                                   3
issued a memorandum opinion affirming the judgment of the trial court.            On

December 19, 2014, Petitioner filed a motion for rehearing, which was subsequently

denied on March 25, 2015. On April 9, 2015, Petitioner filed a motion for en banc

reconsideration, which was denied on April 14, 2015.


                           GROUNDS FOR REVIEW


      Is the trial court’s erroneous exclusion of the following commitment
      question that Petitioner’s trial counsel sought to ask prospective jurors
      during his voir dire examination of the jury panel subject to a harm
      analysis: If you served as a juror in a murder case, and you heard enough
      evidence during the trial that you were convinced that the defendant
      probably committed the offense charged, but you were not convinced
      beyond a reasonable doubt that he did so, could you follow the law and
      acquit him?


                    REASONS FOR GRANTING REVIEW


      The court of appeals has erroneously decided important questions of
      state and federal law that have not been, but should be, settled by this
      Court. TEX. R. APP. P. 66.3(b).


                            STATEMENT OF FACTS


      During his voir dire examination of the jury panel, Petitioner’s trial counsel

sought to ask each prospective juror the following commitment question: “Let’s

suppose that you serve on a jury in a criminal case, the charge is murder, […] and you

have heard enough evidence that you think that he or she probably did do it, […]
                                       4
You’re convinced that it is more likely than not that he did commit the murder, but

you are not convinced beyond a reasonable doubt. If you found yourself in that

situation, could you follow the law and acquit the person on trial?” III R.R. at 141–

44.

      The lead prosecutor objected that the foregoing question constituted “an

improper commitment question.” III R.R. at 144. The trial court carefully avoided

expressly ruling upon the objection and instead articulated a different question that it

deemed “the proper question,” i.e., “will you follow the law and hold the State to its

standard of beyond a reasonable doubt,” “are you going to hold the State to its

standard of beyond a reasonable doubt.” Id. Petitioner’s trial counsel, however,

demurred to the trial court’s suggestion that he ask the judicially-approved question

and informed the court, “I’m asking that I be permitted to ask them whether they can

follow the law and acquit if they are not convinced beyond a reasonable doubt of this

man’s guilt.” Id. The trial court responded equivocally, “That’s fine. Yes,” prompting

Petitioner’s trial counsel to inquire, “Is the Court instructing me that I’m not

permitted to ask that question?” The trial court then unequivocally replied, “Yes.” III

R.R. at 144–145.

      In his first point of error on appeal, Petitioner contended that “[t]he trial court

committed reversible error in prohibiting defense counsel from asking the prospective

jurors whether they could follow the law and acquit someone charged with murder if

                                           5
they were not convinced beyond a reasonable doubt that he had committed the

offense charged.” App. Br. at 29–30. The court of appeals concluded that defense

counsel’s question “was proper because it sought to determine whether the venire

members could follow the law by committing to an acquittal if they were not

convinced beyond a reasonable doubt of [Petitioner’s] guilt and because it did not

include any additional facts beyond those required for this legal requirement.”

Gonzales v. State, No. 03-12-00620-CR, slip op. at 3 (Tex. App.—Austin Dec. 4, 2014)

(mem. op. not designated for publication). Consequently, the court of appeals held

that the trial court abused its discretion in prohibiting Petitioner’s trial counsel from

asking the question. Id. However, in apparent reliance upon this Court’s opinion in

Gonzales v. State, 994 S.W.2d 170 (Tex. Crim. App. 1999), the court of appeals went on

to conduct a harm analysis under Rule 44.2 of the Texas Rules of Appellate

Procedure. Id.

      After concluding that Petitioner’s trial counsel “was not entirely precluded from

discussing and explaining the beyond-a-reasonable-doubt standard,” the court of

appeals, relying upon dicta contained in this Court’s opinion in Easley v. State, 424

S.W.3d 535, 541–42 (Tex. Crim. App. 2014), reviewed the trial court’s erroneous

exclusion of his question under the non-constitutional harm standard set forth in Rule

44.2(b), which provides that any non-constitutional “error, defect, irregularity, or

variance that does not affect substantial rights must be disregarded.” Gonzales, slip op.

                                           6
at 4–5; TEX. R. APP. P. 44.2(b). Then, following the guidelines suggested in Rich v.

State, 160 S.W.3d 575, 577 (Tex. Crim. App. 2005), the court of appeals considered the

trial court’s voir dire error in the context of the following factors: Petitioner’s “ability

to generally pursue the issue of reasonable doubt during voir dire,”3 the trial court’s

jury instructions, the evidence of Petitioner’s guilt, which the court characterized as

“overwhelming,” and certain remarks made by Petitioner’s trial counsel during closing

argument suggesting that the prosecutors had “proven that [Petitioner] probably did

kill [the deceased], but they didn’t prove beyond a reasonable doubt that he did.” The

court concluded that when viewed in context of the aforesaid factors, “the trial

court’s error in prohibiting defense counsel from asking his one preferred voir-dire

question did not have a substantial and injurious influence in determining the jury’s

verdict.” Gonzales, slip op. at 5. Consequently, the court overruled the point of error

that gives rise to the grounds for review presented in this petition. Id.




3
  The court of appeals erroneously concluded that defense counsel “was allowed to elicit the same
general information as that likely to be gleaned from his preferred question.” As Petitioner pointed
out in his briefs filed with the court of appeals, obtaining a definitive commitment from every
prospective juror in a murder case that he or she could follow the law and acquit the defendant if he
or she were convinced from the evidence that the defendant probably committed the offense, but he
or she were not convinced beyond a reasonable doubt that the defendant did so, elicits substantially more
information from such prospective juror than the abstract and purely-conceptual question, “[A]re
you going to hold the State to its standard of beyond a reasonable doubt[?]” See App. Br. at 55–61,
App. R. Br. at 15–24.

                                                   7
                                       ARGUMENT


      When the court of appeals affirmed the judgment rendered by the trial court in

the above-referenced criminal action, it erroneously decided important questions of

state and federal law that have not been, but should be, settled by this Court. TEX. R.

APP. P. 66.3(b). The issue presented in Petitioner’s first point of error on appeal was

not whether the erroneous exclusion of his trial counsel’s voir dire question had a

substantial and injurious influence upon the jury’s deliberations.      Rather, it was

whether the error precluded Petitioner’s trial counsel from ensuring that each person

who ultimately served as a juror was legally qualified to serve vis-à-vis the

constitutionally-mandated standard of proof beyond a reasonable doubt that jurors

are required to apply in every criminal case. Any prospective juror who would convict

someone of murder merely because he or she were convinced from the evidence that

the defendant probably committed the offense would be legally disqualified from

serving as a juror in a murder case.

      The question that Petitioner’s trial counsel sought to ask was intended to trigger

genuine, soul-searching responses from the prospective jurors, asking them to imagine

serving on a jury where the person on trial was charged with murder; to imagine that

they had heard enough evidence that they were convinced that the defendant probably

committed the murder but they were not convinced beyond a reasonable doubt that he

                                          8
had done so, and then to say whether they could follow the law and acquit the person

on trial. It was a carefully-worded, hypothetical question designed to compel each

prospective juror to solemnly consider the State’s burden of proof and search his or

her conscience and decide whether he or she could really follow the law and acquit

someone charged with murder in such a circumstance. Had defense counsel been

permitted to ask that question and elicit truthful answers from each member of the

jury panel, he undoubtedly would have obtained valuable information that would have

assisted him in intelligently exercising his peremptory challenges and challenges for

cause. In stark contrast to the question that defense counsel sought to ask, the one

that the trial court permitted him to ask was categorically different; it was purely

conceptual and required no such soul-searching. As a result, defense counsel was

unable to glean any such information from any member of the panel.

      This Court has previously observed that the United States Supreme Court has

“never held that erroneously restricting proper questions during jury voir dire is

structural error of a federal constitutional nature.” Gonzales, 994 S.W.2d at 171.

However, Sullivan v. Louisiana, 508 U.S. 275 (1993), one of the cases cited in Gonzales

where the Supreme Court found a structural error, involved an issue remarkably

similar to the one presented in the case at bar. In Sullivan, the trial court had given the

jury a definition of “reasonable doubt” that was, as the State had conceded below,

“essentially identical to the one held unconstitutional in Cage v. Louisiana, 498 U.S. 39

                                            9
(1990)(per curiam).” Sullivan, 508 U.S. at 277. According to the Supreme Court’s

opinion in Cage, “a reasonable juror could have interpreted the instruction to allow a

finding of guilt based on a degree of proof below that required by the Due Process Clause.”

Cage, 498 U.S. at 41 (emphasis added).

          The error committed by the trial court in the case below is categorically

immune to a harmless error analysis because it constitutes structural error of a federal

constitutional nature tantamount to the error committed by the trial court in Sullivan v.

Louisiana, 508 U.S. 275 (1993).4 The burden of the State to prove each and every

element of the offense charged beyond a reasonable doubt applies to every criminal

case. Homan v. State, 662 S.W.2d 372, 374 (Tex. Crim. App. 1984), citing In re Winship,

397 U.S. 358 (1970). It need not be raised by any evidence; it is raised by the mere

presentment of an indictment. It necessarily follows that the right of a defendant to

an acquittal if the State fails to sustain its burden also applies to every criminal case.

Consequently, conducting a harm analysis would not make sense here, where the

question that was erroneously excluded sought to ensure that each person who

4
    In a footnote to the Gonzales opinion, the Court of Criminal Appeals observed,

          “Structural” error as explained in Arizona v. Fulminante, is a “defect affecting the
          framework within which the trial proceeds, rather than simply an error in the trial
          process itself.” Arizona v. Fulminante, [499 U.S. 279, 309] (1991). The United States
          Supreme Court has found structural errors only in a very limited class of cases. . . .
          Sullivan v. Louisiana, [508 U.S. 275] (1993) (erroneous reasonable-doubt instruction to
          jury).

Gonzales v. State, 994 S.W.2d 170, at n. 4.

                                                    10
ultimately served as a juror was capable of applying the constitutionally-mandated

standard of proof beyond a reasonable doubt, a rule involving a fundamental right

that applies to the trial of every criminal case.

       In addressing the harm of the error in Sullivan, the Supreme Court stated that

“[a]lthough most constitutional errors have been held amenable to harmless error

analysis, [internal citation omitted] some will always invalidate the conviction.”

Sullivan, 508 U.S. at 279. In concluding that the error committed by the trial court in

that case fell within the latter category, the Supreme Court reasoned that there had

been no jury verdict within the meaning of the Sixth Amendment because the verdict

that was actually rendered was based upon an unconstitutional definition of

“reasonable doubt.” Sullivan, 508 U.S. at 280. Essentially, the Supreme Court held

that, although the jury had rendered a de facto verdict of “guilty,” it had not rendered a

de jure verdict of “guilty” because its verdict was based upon a constitutionally-

deficient definition of “reasonable doubt” that permitted it to convict the appellant

upon a degree of proof that fell below what was required by the Due Process Clause.

Having concluded that there was “no jury verdict of guilty beyond a reasonable

doubt,” the Supreme Court concluded, “[t]here is no object, so to speak, upon which

harmless error scrutiny can operate.” Sullivan, 508 U.S. at 280 (italics in original).

       This case presents essentially the same issue as the one presented in Sullivan.

Both cases involve constitutional errors relating to the standard of proof that the

                                             11
State is required to meet before a jury may convict anyone accused of a criminal

offense. The errors simply occurred at opposite stages of the proceedings. In Sullivan

the error occurred at the conclusion of the trial, when the jury retired to deliberate

with a constitutionally-deficient instruction of “reasonable doubt.” Sullivan, 508 U.S.

at 277. In this case, the error occurred at the beginning of the trial, when the trial

court prohibited defense counsel from properly examining the prospective jurors to

ensure that each of them was qualified to follow the constitutionally-mandated

standard of proof that would ultimately govern their deliberations. III R.R. at 142-45.

      In Sullivan, the Supreme Court concluded that the error committed by the trial

court constituted a structural error that was not subject to a harm analysis for two

reasons. First, the court noted that Chapman v. California, 386 U.S. 18 (1967), the

opinion wherein the court had rejected the proposition that all constitutional errors in

the course of a criminal trial require reversal, instructed appellate courts to consider

“not what effect the constitutional error might generally be expected to have upon a

reasonable jury, but rather what effect it had upon the guilty verdict in the case at

hand.” Sullivan, 508 U.S. at 279. Citing Rose v. Clark, 478 U.S. 570, 578 (1986), the

court stated:

      [T]he essential connection to a “beyond a reasonable doubt” factual
      finding cannot be made where the instructional error consists of a
      misdescription of the burden of proof, which vitiates all the jury’s
      findings. A reviewing court can only engage in pure speculation — its
      view of what a reasonable jury would have done. And when it does that,
      “the wrong entity judge[s] the defendant guilty.”
                                         12
Sullivan, 508 U.S. at 281 (italics in original). Because the error in that case precluded a

jury verdict finding the defendant guilty beyond a reasonable doubt, the court

concluded that there was no jury verdict to consider in conducting a harm analysis.

Sullivan, 508 U.S. at 280.

       The Supreme Court concluded that “[a]nother mode of analysis [led] to the

same conclusion that harmless error analysis [did] not apply” in that case. Sullivan,

508 U.S. at 281. The court noted that in Arizona v. Fulminante, 499 U.S. 279 (1991), the

court had distinguished between “structural defects in the constitution of the trial

mechanism, which defy analysis by ‘harmless error’ standards,” and “trial errors which

occur during the presentation of the case to the jury, and which may therefore be

quantitatively assessed in the context of other evidence presented.” Id. The court

went on to observe as follows:

       Denial of the right to a jury verdict of guilt beyond a reasonable doubt
       is certainly an error of the former sort, the jury guarantee being a “basic
       protection[n]” whose precise effects are unmeasurable, but without
       which a criminal trial cannot reliably serve its function, Rose, supra, 478
       U.S. at 577. The right to trial by jury reflects, we have said, “a profound
       judgment about the way in which law should be enforced and justice
       administered.” Duncan v. Louisiana, 391 U.S. at 155. The deprivation of that
       right, with consequences that are necessarily unquantifiable and indeterminate,
       unquestionably qualifies as “structural error.”
Sullivan, 508 U.S. at 281–282 (emphasis added).

       Like the errors in Fulminante and Sullivan, the error in this case constitutes a

“defect affecting the framework within which the trial proceed[ed], rather than simply

                                             13
an error in the trial process itself.” Fulminante, 499 U.S. at 310; Sullivan, 508 U.S. at 282

(Rehnquist, C.J., concurring).      It simply occurred at a different stage of the

proceedings, i.e., during the constitution, rather than the instruction, of the jury. Whereas

the trial in Sullivan presumably began with twelve jurors who had been properly

qualified on their ability to acquit the defendant in the event that they had a

reasonable doubt as to his guilt but ended with those same jurors being governed by a

constitutionally-deficient definition of “reasonable doubt,” the trial in this case ended

with the jurors being properly instructed about their duty to acquit Petitioner in the

event that they had a reasonable doubt as to his guilt, but it began with twelve jurors

who had not been properly qualified—at least to Petitioner’s satisfaction—on their

ability to acquit Petitioner under such circumstances. Both errors relate to the same

issue: the constitutionally-mandated standard of proof that the State must always

meet before a jury may convict someone accused of a criminal offense. Both errors

defy analysis by ‘harmless error’ standards” because their consequences “are

necessarily unquantifiable and indeterminate.” Moreover, the risks inherent in both

errors are identical: one or more of jurors might acquiesce in a verdict of “guilty”

after applying a constitutionally-impermissible standard of proof.

       Considering the depth and breadth of public familiarity with the long-

established principle of American jurisprudence forbidding the conviction of anyone

accused of a criminal offense except upon proof beyond a reasonable doubt, it is

                                             14
conceivable that all twelve jurors who convicted the appellant in Sullivan disregarded

the constitutionally-deficient definition of “reasonable doubt” given to them by the

trial court and applied the correct standard of proof instead. However, because it

found the consequences of such an error to be “necessarily unquantifiable and

indeterminate,” the Supreme Court concluded that it had no way of assuring itself

that none of the jurors reached his or her verdict based upon the constitutionally-

deficient definition. Sullivan, 508 U.S. at 281–282. Consequently, the court held that

such an error is structural, requiring automatic reversal. Id.

      The same can be said of the error committed in the case below. While it is

conceivable that all twelve jurors who convicted Petitioner were willing and able to

acquit him in the event that they had a reasonable doubt as to his guilt, the court of

appeals had no way of assuring itself of that fact because the trial court prohibited

defense counsel from asking them, before they were empaneled, if they could follow

the law and acquit Petitioner in the event that they were convinced that he probably

committed the offense charged but they were not convinced of his guilt beyond a

reasonable doubt. Like the error considered in Sullivan, the consequences of the trial

court’s error in this case are “necessarily unquantifiable and indeterminate.” The

possibility that even one person who served on the jury that convicted Petitioner was

unwilling, unable, or indisposed to follow the law and acquit him in the event that

such person was convinced that he probably committed the offense charged but was

                                            15
not convinced of his guilt beyond a reasonable doubt invalidates the verdict that was

eventually rendered. See Morgan v. Illinois, 504 U.S. 719, 729 (1992).

         If even one such person served on the jury that convicted Petitioner, it would

taint Petitioner’s conviction just as the erroneous definition of “reasonable doubt”

given to the jury in Sullivan v. Louisiana, 508 U.S. 275 (1993), tainted the conviction

rendered therein. It would mean that the verdict that was rendered did not constitute

a unanimous verdict of “guilty beyond a reasonable doubt” because at least one

member of the jury acquiesced in the verdict without being governed by the only

constitutionally-acceptable standard of proof for a criminal case: proof beyond a

reasonable doubt. See Sullivan v. Louisiana, 508 U.S. at 280; Morgan v. Illinois, 504 U.S. at

729. For the foregoing reasons, this Court should grant this petition for discretionary

review, reverse the judgment of the court of appeals, and remand the case for a new

trial.


                                        PRAYER


         WHEREFORE, PREMISES CONSIDERED, the Petitioner respectfully prays

that this Court grant his petition for discretionary review and, upon reviewing the

decision of the court of appeals, reverse the judgment of the court of appeals

affirming the judgment rendered by the trial court in the above-referenced criminal

action, and remand the case for a new trial.

                                             16
                                                Respectfully submitted,


                                                ______________________________
                                                RICHARD D. REED
                                                316 W. 12th Street, Suite 313
                                                Austin, Texas 78701-1820
                                                512-322-9443
                                                rick.reed@maverickcounsel.com
                                                State Bar No. 16686100
                                                LEAD COUNSEL FOR PETITIONER


                           CERTIFICATE OF SERVICE

       I hereby certify that on this, the fourteenth, day of May, A.D. 2015, I personally
served a copy of the above-and-foregoing Petition for Discretionary Review upon
Rosemary Lehmberg, District Attorney of Travis County, Texas, whose address is 509
West 11th Street, Suite 1.100, Austin, Texas 78701-2103, by electronically delivering a
copy     of    the     said    petition    to    the     following     email    address:
appellatetcda@traviscountytx.gov.

       I further certify that on this, the fourteenth, day of May, A.D. 2015, I
personally served a copy of the above-and-foregoing Petition for Discretionary
Review upon Lisa C. McMinn, State Prosecuting Attorney, whose address is 209 West
14th Street, Austin, Texas 78701-1614, by electronically delivering a copy of the said
petition to the following email address: lisa.mcminn@spa.texas.gov.


                                                ______________________________
                                                Richard D. Reed



                                           17
                       CERTIFICATE OF COMPLIANCE

      Pursuant to Rule 9.4(i)(3), Texas Rules of Appellate Procedure, I hereby certify
that the above-and-foregoing Petition for Discretionary Review contains a total of
2,305 words exclusive of the caption, identity of judge, parties, and counsel, statement
regarding oral argument, table of contents, index of authorities, statement of the case,
statement of issues presented, statement of jurisdiction, statement of procedural
history, signature, proof of service, certification, certificate of compliance, and
appendix.


                                               ______________________________
                                               Richard D. Reed




                                          18
      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-12-00620-CR



                                 Henry Gonzales, Jr., Appellant

                                                  v.

                                   The State of Texas, Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 299TH JUDICIAL DISTRICT
        NO. D-1-DC-12-904023, HONORABLE KAREN R. SAGE, JUDGE PRESIDING



                             MEMORANDUM OPINION


               Appellant was convicted of murder and sentenced to life imprisonment. He appeals

his conviction in seven points. We will affirm the trial court’s judgment.


                                   FACTUAL BACKGROUND

               Appellant was charged with murder after Mary Rivas was found deceased on the

porch of her boyfriend’s home. At trial, the medical examiner testified that Rivas had been killed

in an assault by intentionally inflicted stab wounds. Rivas’s boyfriend, Ruben Gonzales (appellant’s

brother), testified that he had been staying at the hospital during the time frame in question and that

Rivas had called him at the hospital from his home phone the night before her body was found.

Ruben testified that during the phone call, he could hear appellant’s voice in the background,

demanding to talk to him. He further testified that at one point during the phone call he heard Rivas

say “mother fu—,” but that before she finished the curse word, the call was abruptly disconnected.
Ruben testified that this was the last contact he had with his girlfriend before his daughter found

Rivas’s deceased bloody body on the porch the following day. No other witnesses testified to the

events of that evening.

               Appellant did not testify at trial, but in a video recording that was shown to the jury,

he admitted to police detectives during a custodial interrogation that he had been drinking and

smoking crack at Ruben’s house with Rivas on the night in question and that, although he did not

remember stabbing her, he did remember standing over her bloody body at some point after he and

the deceased had an argument. Evidence showed that appellant sustained two cuts on the fingers of

his left hand during the evening in question and that drops of his blood were found throughout the

living room and kitchen of Ruben’s house as well as progressing along several blocks of sidewalk

and ceasing at a water faucet outside a gas station. A bloody six-inch knife was found behind a

dumpster near the gas station, and DNA testing confirmed that the blood on the knife belonged to

both the deceased and appellant.


                                           DISCUSSION

               Appellant’s first issue asserts that the trial court erred in prohibiting defense counsel

from asking the following question during voir dire: “You’re convinced that it is more likely than

not that [the defendant] did commit the murder, but you are not convinced beyond a reasonable

doubt. If you found yourself in that situation, could you follow the law and acquit the person on

trial?” The State objected that this was an improper commitment question, to which the trial court

responded that it would allow proper questions such as, “Will you hold the State to its standard of

beyond a reasonable doubt?” and “Do you have a problem with that standard in that circumstance?”

                                                  2
Appellant explained that the question he sought to ask was “Whether [the venire] can follow the law

and acquit if they are not convinced beyond a reasonable doubt of this man’s guilt?” Appellant then

inquired whether the trial court was instructing him that he was not permitted to ask that question,

to which the trial court replied, “Yes.” Defense counsel then asked a rephrased question about

reasonable doubt, to which the State did not object.

               Both the State and appellant agree that appellant sought to ask a commitment

question, and we concur. See Standefer v. State, 59 S.W.3d 177, 180 (Tex. Crim. App. 2001)

(commitment question binds prospective juror to verdict or asks prospective juror to refrain from

resolving issue, based on one or more facts contained in question). The point of contention is

whether the commitment question was proper. Id. at 181-82. We conclude that the question was

proper because it sought to determine whether the venire members could follow the law by

committing to an acquittal if they were not convinced beyond a reasonable doubt of appellant’s

guilt and because it did not include any additional facts beyond those required for this legal

requirement. See id.; Caton v. State, 66 Tex. Crim. 473, 475 (1912) (holding as proper questions

substantively same as question here); see also Fuller v. State, 363 S.W.3d 583, 588 n.28 (Tex. Crim.

App. 2012) (prospective juror would be challengeable for cause if she equated proof beyond

reasonable doubt with preponderance of evidence or clear and convincing evidence). Accordingly,

the trial court abused its discretion in prohibiting defense counsel from asking the question. See

Barajas v. State, 93 S.W.3d 36, 38 (Tex. Crim. App. 2002); Howard v. State, 941 S.W.2d 102, 108

(Tex. Crim. App. 1996). Having determined that the trial court erred, we must conduct a harm

analysis. See Tex. R. App. P. 44.2.



                                                 3
                While defense counsel was prohibited from phrasing his preferred query in one

particular way, he was not entirely precluded from discussing and explaining the beyond-a-

reasonable-doubt standard. Therefore, we will review the harm under the non-constitutional-harm

analysis, as the limitation that the trial court placed on defense counsel’s preferred voir dire was not

“so substantial” as to rise to the level of constitutional error. Easley v. State, 424 S.W.3d 535, 541-

42 (Tex. Crim. App. 2014) (where defense counsel was not foreclosed from explaining concept of

“beyond a reasonable doubt,” error was non-constitutional); Woods v. State, 152 S.W.3d 105, 109

(Tex. Crim. App. 2004) (denial of proper question in voir dire assessed as non-constitutional error).

Accordingly, we will consider whether appellant’s substantial rights were affected thereby and

disregard the error if they were not. Tex. R. App. P. 44.2(b); Johnson v. State, 43 S.W.3d 1, 4 (Tex.

Crim. App. 2001) (substantial right is affected when error has substantial and injurious effect or

influence in determining jury’s verdict).

                Besides the fact that appellant was allowed to elicit the same general information as

that likely to be gleaned from his preferred question, the jury was instructed in the charge that “[t]he

prosecution has the burden of proving the defendant guilty and it must do so by proving each and

every element of the offense charged beyond a reasonable doubt and if it fails to do so, you must

acquit the defendant” and that “[i]n the event you have a reasonable doubt as to the defendant’s guilt

after considering all the evidence before you, and these instructions, you will acquit the defendant.”

This charge properly instructed the jury on the burden of proof beyond a reasonable doubt and

the circumstances under which they must acquit appellant. Furthermore, this instruction contained

substantively the same information as that included in appellant’s preferred voir-dire question.



                                                   4
Absent evidence to the contrary, which we do not have, we presume the jury followed the trial

court’s instructions. Hutch v. State, 922 S.W.2d 166, 172 (Tex. Crim. App. 1996). On this record

and in light of this presumption, we conclude that the voir-dire error did not have a substantial and

injurious influence on the jury’s verdict because the jury was charged with the very same duty

appellant earlier sought to address in voir dire.

                Additionally, the evidence of guilt was overwhelming, considering the physical and

DNA evidence; the testimony of Ruben, the medical examiner, and the detectives; and appellant’s

own statements during his custodial interview. In light of the evidence, the voir-dire error would

have had little, if any, influence on the jury’s deliberations.

                Finally, we note that in closing argument, defense counsel revisited the State’s burden

of proof and his preferred presentation of that topic by submitting to the jury that the State had

“proven that [the defendant] probably did kill [the deceased], but [it] didn’t prove beyond a

reasonable doubt that he did.” (Emphasis added.) Furthermore, the jury charge specifically ordered

the jury that its verdict must be unanimous and must reflect the individual verdict of each juror rather

than a “mere acquiescence in the conclusion of the other jurors.” When viewed in context of the

overwhelming evidence of appellant’s guilt, the trial court’s jury instructions, and appellant’s ability

to generally pursue the issue of reasonable doubt during voir dire, we conclude that the trial court’s

error in prohibiting defense counsel from asking his one preferred voir-dire question did not have

a substantial and injurious influence in determining the jury’s verdict. Accordingly, we overrule

appellant’s first issue.




                                                    5
                We next address appellant’s complaint that the trial court erred in denying his

request for a self-defense instruction in the jury charge.1 See Ferrel v. State, 55 S.W.3d 586, 591

(Tex. Crim. App. 2001) (defendant is entitled to instruction on self-defense if issue is raised by

evidence). The State responds, as it did at trial, that there was no evidence on the essential element

of the offense requiring that the victim be the first aggressor.2 See Tex. Penal Code §§ 9.31, .32.

Based on our review of the record, we agree.

                The only evidence to which appellant points as allegedly raising the defense is

(1) two cuts he sustained on the fingers of his left hand during the time of the offense and (2) an

argument he allegedly had with the victim.3 Although appellant argues on appeal that the cuts

were defensive wounds, sustained in response to the victim’s first aggressive act towards him with

the knife that caused her death, there is nothing in the record to support such an inference. As the

trial court correctly concluded, the cuts on appellant’s hand, without more, were insufficient as a

matter of law to raise the element of self-defense requiring the victim to have been the first

aggressor. See Shaw v. State, 243 S.W.3d 647, 657-58 (Tex. Crim. App. 2007) (“raised by the



        1
         This is appellant’s sixth issue, but for the sake of brevity, we address his points out of
order. See Tex. R. App. P. 47.1, 47.4.
        2
          The State also argues that appellant did not admit the underlying acts, another requirement
for a self-defense instruction. See VanBrackle v. State, 179 S.W.3d 708, 715 (Tex. App.—Austin
2005, no pet.). We need not reach this argument because of our determination of the self-defense
issue on the basis of first aggression.
        3
          As appellant did not testify at trial, evidence of the argument to which he refers arose only
in the context of his statements to police officers during the videotaped custodial interrogation after
his arrest. It is not a requirement that a defendant testify to raise the issue of self-defense, but there
must nonetheless be evidence that he believed himself to be in danger and of an attack or apparent
attack by the victim. Smith v. State, 676 S.W.2d 584, 585 (Tex. Crim. App. 1984).

                                                    6
evidence” means there is some evidence on each element of defense that, if believed by jury,

would support rational inference that element is true). The argument appellant allegedly had with

the victim is also insufficient, without more, to raise the defense, as an argument does not equate

with an act or attempted act of violence.

                Appellant’s contention that he acted in self-defense against the victim’s initial

aggression relies on mere speculation rather than reasonable inferences that the jury could have

made from the admitted evidence. See Hooper v. State, 214 S.W.3d 9, 15-16 (Tex. Crim. App.

2007) (“Speculation . . . about the possible meaning of facts and evidence . . . is not sufficiently

based on facts or evidence to support a finding beyond a reasonable doubt.”). The trial court did not

err in ruling that the evidence did not raise the issue of self-defense and in not giving an instruction

accordingly. See Shaw, 243 S.W.3d at 657-58. We overrule appellant’s sixth issue.

                Appellant’s fourth issue asserts that the trial court erred in excluding evidence

of the victim’s criminal history allegedly demonstrating her character for violence, specifically

evidence that she had previously threatened an Austin peace officer with a knife when he arrested

her for prostitution and for which she was convicted of assault eleven years prior to her murder.

However, while evidence of a pertinent character trait of the victim of a crime offered by the

defendant is admissible, such evidence must generally be in the form of opinion or reputation

testimony. See Tex. R. Evid. 404(a)(2); Ex parte Miller, 330 S.W.3d 610, 619 (Tex. Crim. App.

2009); Torres v. State, 71 S.W.3d 758, 760 (Tex. Crim. App. 2002). Evidence of other crimes,

wrongs, or acts is not admissible to prove the character of the victim to show action in conformity

therewith. Tex. R. Evid. 404(b).



                                                   7
               Specific acts of violence may be admissible to show that the victim was the first

aggressor but only to the extent that the acts are relevant apart from showing action in conformity

with such character, for instance to prove the victim’s specific intent, motive, or state of mind with

respect to the offense for which the defendant is being tried. Torres, 71 S.W.3d at 760. However,

in the context of a defendant’s intent to prove that the deceased was the first aggressor, in order to

introduce evidence of a specific, violent act, there must first be some evidence of a violent or

aggressive act by the deceased that tends to raise the issue of self-defense and that the specific act

may explain. Id. at 761; see also Torres v. State, 117 S.W.3d 891, 895 (Tex. Crim. App. 2003)

(before defendant may introduce evidence of prior specific act that tends to explain decedent’s later

conduct, there must be some evidence of aggression by deceased during events that gave rise to

criminal charges in case).

               Thus, for the victim’s criminal history to have been admissible in this case, there must

have first been some evidence of her aggression that raised the issue of self-defense. As already

discussed, there was not. Therefore, evidence of the victim’s criminal history was not admissible,

and the trial court did not abuse its discretion in excluding it. See Tienda v. State, 358 S.W.3d 633,

638 (Tex. Crim. App. 2012) (trial court’s ruling on evidentiary matter is reviewed for abuse of

discretion, which does not occur if ruling is within zone of reasonable disagreement). We overrule

appellant’s fourth issue.

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

denying his motion for continuance so that he could procure the attendance of an allegedly material

witness—the peace officer whom the deceased had threatened with a knife eleven years prior. See



                                                  8
Renteria v. State, 206 S.W.3d 689, 699 (Tex. Crim. App. 2006) (granting or denying continuance

is within sound discretion of trial court); see also Tex. Code Crim. Proc. art. 29.13 (trial court

may grant continuance “when it is made to appear to the satisfaction of the court that by some

unexpected occurrence since the trial began, which no reasonable diligence could have anticipated,

the applicant is so taken by surprise that a fair trial cannot be had”).

                After reviewing the entire record, we conclude that appellant has not demonstrated

that he was actually prejudiced by the trial court’s denial of his motion for continuance. See Gallo v.

State, 239 S.W.3d 757, 764 (Tex. Crim. App. 2007). As already discussed, the peace officer’s

testimony about the assault committed by the victim would not have been admissible. Additionally,

in his motion for new trial, appellant did not raise the issue of the trial court’s denial of his motion

for continuance and offered no affidavit from the peace officer indicating what his testimony would

have been. See Tex. R. App. P. 21.2 (motion for new trial is prerequisite for issue on appeal when

necessary to adduce facts not in record); Flores v. State, 18 S.W.3d 796, 798 (Tex. App.—Austin

2000, no pet.) (motion for new trial alleging facts outside record without supporting affidavits

is fatally defective). A motion for new trial is ordinarily the means by which to make a showing

of prejudice, Gonzales v. State, 304 S.W.3d 838, 843 (Tex. Crim. App. 2010), and even if the

peace officer’s testimony would have been admissible, appellant made no showing as to what the

additional evidence would have demonstrated from which we could evaluate whether he was

prejudiced. We overrule appellant’s fifth issue.

                Appellant’s second issue complains that his rights to due process and to counsel

were violated by virtue of the State’s alleged withholding of exculpatory evidence prior to trial. See



                                                   9
Brady v. Maryland, 373 U.S. 83, 87 (1963). Specifically, appellant complains that the State withheld

evidence of the deceased’s criminal record, not disclosing it until the penultimate day of trial, despite

his prior requests for exculpatory evidence and despite the court’s granting of his motion for

disclosure of exculpatory evidence. However, to find reversible error under Brady, the appellant

must show that the evidence central to the Brady claim would have been admissible, besides making

other required showings; the State does not have a duty to disclose material evidence favorable to

the defense if it would be inadmissible. See Pena v. State, 353 S.W.3d 797, 809, 814 (Tex. Crim.

App. 2011). Because, as discussed above, the evidence of the victim’s prior criminal acts was not

admissible, there was no reversible Brady error.4 Accordingly, we overrule appellant’s second issue.

                 In his third issue, appellant argues that the trial court erred in denying his request

for a limiting instruction regarding out-of-court statements made by two homicide detectives during

their custodial interrogation of him. At trial, appellant objected on the basis of hearsay to all of the

declaratory statements made by the detectives and published to the jury in the form of the video

recording of his interrogation.5 Appellant argues that the detectives’ statements were inadmissible

hearsay, and to the extent that they were admissible for a purpose other than the truth of the matters

asserted, the trial court was required to instruct the jury about the limited scope of the evidence due

        4
          Because the issue of the inadmissibility of the victim’s criminal record is dispositive, we
do not reach appellant’s additional allegation that the State in fact withheld the evidence.
        5
            Representative of the objected-to statements was the following, made by Detective White:

                 I mean, I mean when y’all were fighting, when, when you and [the
                 deceased] were having the argument, and get—and when, when
                 things were starting to get heated. You said that you were hitting it
                 [i.e., smoking the crack pipe] and you went—you lost control and
                 then the next thing you knew you were standing over her.

                                                   10
to his request for such instruction. See Tex. R. Evid. 105(a) (when evidence that is admissible as

to one party or for one purpose but not admissible as to another party or for another purpose is

admitted, court shall restrict evidence to proper scope and instruct jury accordingly), 802 (hearsay

is not admissible except as provided by statute or rules).

                The record reflects that twice the State represented to the trial court that it was

offering the challenged evidence for the truth of the matters asserted. We conclude that the detectives’

videotaped statements were inadmissible as hearsay unless an exception applied. See id. R. 801

(hearsay is statement, other than one made by declarant while testifying at trial, offered to prove truth

of matter asserted), 802 (hearsay is not admissible except as provided by statute or rules). Neither

at trial nor on appeal has the State identified any applicable hearsay exception. Accordingly, we hold

that the trial court abused its discretion in admitting the detectives’ statements for all purposes,

including for the truth of the matters asserted to by the detectives, instead of admitting them with an

appropriate limiting instruction as appellant requested. See id. R. 105(a).

                Having determined that the trial court erred in failing to give a limiting instruction,

we must consider whether appellant’s substantial rights were affected. Jones v. State, 119 S.W.3d 412,

424-25 (Tex. App.—Fort Worth 2003, no pet.) (failure to give limiting instruction is non-constitutional

error); see also Tex. R. App. P. 44.2(b) (review of non-constitutional errors); Jones v. State,

944 S.W.2d 642, 653 (Tex. Crim. App. 1996) (court’s failure to give rule 105(a) limiting instruction

is reviewed for harmless error).

                Having examined the record as a whole, we have fair assurance that this error did

not influence the jury or had but a slight effect. See Routier v. State, 112 S.W.3d 554, 577 (Tex.



                                                   11
Crim. App. 2003); see also Motilla v. State, 78 S.W.3d 352, 355-56 (Tex. Crim. App. 2002) (in

determining whether substantial rights were affected, appellate court should consider testimony and

physical evidence, nature of evidence, character of alleged error, and overwhelming evidence of

guilt). Most of the detectives’ statements were paraphrases of appellant’s own properly admitted

statements that he made during the custodial interview and therefore were cumulative of that

evidence. Furthermore, the statements would likely have been understood by a reasonable juror to

have been relevant for a purpose other than for their truth (as the detectives did not witness the

murder), such as to glean information from appellant as an investigative technique. The remaining

statements by the detectives were paraphrases of statements allegedly made by Ruben during

Detective White’s interview with him at the hospital and were cumulative of facts contained in

Ruben’s trial testimony and in phone records admitted at trial. Also, both detectives and Ruben

were available for cross-examination at trial.

               Moreover, as already discussed, there was overwhelming evidence of appellant’s guilt

in the form of DNA and physical evidence, including the bloody knife containing appellant’s and

the victim’s DNA and evidence that appellant was with the deceased at the time of the offense. After

examining the entire record, we conclude that appellant’s substantial rights were not affected by the

trial court’s error in failing to give the jury a limiting instruction about the detectives’ videotaped

statements, and we accordingly overrule his third issue.

               Finally, appellant’s seventh issue asserts that the trial court made multiple errors

throughout the trial proceedings that, viewed together, cumulatively resulted in depriving him

of a fair trial. Although a number of errors may be found harmful in their cumulative effect,



                                                  12
Chamberlain v. State, 998 S.W.2d 230, 238 (Tex. Crim. App. 1999), the “cumulative error doctrine

provides relief only when constitutional errors so ‘fatally infect the trial’ that they violated the trial’s

fundamental fairness,’” United States v. Bell, 367 F.3d 452, 471 (5th Cir. 2004).

                Besides the six issues already addressed, appellant cites an additional nineteen

alleged errors within this seventh issue. We have previously cautioned parties bringing cumulative-

harm claims to brief each alleged error separately before discussing their cumulative effect,

with appropriate citations to the record and relevant legal authority; otherwise, the party runs the

risk of having the claim dismissed as multifarious. Walls v. State, No. 03-12-00055-CR, 2014 WL

1208017, at *5 n.2 (Tex. App.—Austin Mar. 20, 2014, no pet.) (mem. op., not designated for

publication); see also Davis v. State, 329 S.W.3d 798, 803 (Tex. Crim. App. 2010) (concluding that

single point of error asserting constitutional and statutory claims was multifarious). However, we

regard appellant’s true issue here to be that the trial court exhibited an improper bias or prejudice

against him, depriving him of a fair trial, rather than that the cumulative effect of these multiple

alleged “errors” sufficiently raised the harm level to one warranting a reversal. See Bracy v. Gramley,

520 U.S. 899, 904-05 (1997). Therefore, we consider whether the trial court’s conduct, as reflected

in the record as a whole, rises to a level displaying “deep-seated favoritism or antagonism.” See

Liteky v. United States, 510 U.S. 540, 554 (1994) (judicial remarks during course of trial that are

critical, disapproving, or even hostile to counsel, parties, or their cases, ordinarily do not support bias

or partiality challenge). Having viewed the record in its entirety, we conclude that the trial court’s

conduct—in the form of appellant’s cited twenty-plus “errors” and the trial court’s verbal remarks

made throughout trial—do not rise to such a level. Accordingly, we overrule appellant’s seventh issue.



                                                    13
                                    CONCLUSION

               For the foregoing reasons, we overrule each of appellant’s issues and affirm the

trial court’s judgment.



                                              _____________________________________________

                                              Scott K. Field, Justice

Before Justices Puryear, Goodwin, and Field

Affirmed

Filed: December 4, 2014

Do Not Publish




                                                14
